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"Know someone who wants insurance? Allianz's referral programme pays you for it If we know a good mechanic, plumber, or even property agent, it’s quite common for us to recommend these people to our friends and family. And most of the time, there’s nothing in it for us other than a “thank you” from our loved ones; though property agents do sometimes share a referral fee. But actually, you can also get a very sizable referral fee by referring your friends to an insurance agent! Our friends over at Allianz Malaysia introduced us to their referral programme, coincidentally named Friends of Allianz. So here’s how you can earn some money if your friend comes up to you and asks “eh you got know any good insurance agents ah?” Be a Friend, get some dough We’ve actually made a video explaining this before. So if you prefer, you can watch our entertaining (wah puji sendiri) parody video of a financial guru explaining Friends of Allianz here. Basically, all you have to do is: Sign up for the Friends of Allianz programme Refer someone who wants to buy insurance to an Allianz agent (with their consent, of course) Wait for your friend to buy it. Once the policy is issued, you’ll get 50% of the agent’s first year commission! Sounds a bit too easy? It is, but that’s because getting the referrals is actually the hardest part. In case you don’t know, a Malaysians’ personal data is protected by the Personal Data Protection Act 2010 (The PDPA). So as an insurance agent, getting a lead or contact on people who want to buy insurance is very valuable, because resorting to things such as buying a name list is very illegal and can get them in trouble. Which is why, if you refer someone to an agent and the person ends up getting a policy, you’ll earn 50% of the agent’s first-year commission. So if the agent gets a RM1,000 commission for the first year, you’ll get RM500. Signing up for the referral programme is also free, and there are absolutely no targets for you to hit (unless you set your own personal target lah). There are no limits on how many people you can successfully refer, and no pressure or commitments whatsoever. It’s not a sales job You might also think, “Eh, I need to learn how to sell insurance right?”. The answer is a resounding “NO”, because this is not a sales job. You just have to refer your friend who already wants to buy insurance to an Allianz agent assigned to you, and they will be the one explaining everything to your friend. Other than introducing friends who don’t already have insurance, this programme also applies if you successfully refer someone who needs an insurance upgrade. So what does that mean? You might have heard that Covid-19 hospitalization costs in private hospitals can run up to RM200,000; while most insurance plans purchased 10 years ago usually cover about RM30,000 at most, meaning the balance of RM170,000 will have to come out of their pockets. So if you know someone who’s not sufficiently covered, it’s worth asking them to get their policy relooked by an Allianz agent. If they do get a policy upgrade or buy a new policy, you’ll also get the commission. You can also do everything online, so you don’t need to go out of your way (or your house) to do it. Just find people who want insurance, and refer them to your agent who wants to sell it = money. So if you’re interested, you can click the link below to sign up. Just make sure you’re over 18 and Malaysian to qualify for Friends of Allianz. Join the Friends of Allianz programme here."
"Here's what Budget 2022's fancy names actually do Over the years, the Ministry of Finance (MOF) has rolled out a multitude of initiatives and schemes in their annual budget announcement, and you’ve probably noticed a trend - while the scheme names may be catchy, they’re not exactly self-explanatory. As an example, while you can tell that “Shop Malaysia Online” has something to do with online shopping, it's not quite obvious what the Kasih Suri Keluarga Malaysia initiative is about... which is why we came up with this quick guide to help you understand what these Budget 2022 initiatives actually offer, and if they're relevant to you. 1. There are A LOT of Keluarga Malaysia initiatives There's a number of Budget 2022 initiatives with ""Keluarga Malaysia"" in their names, and despite them sounding like they're more or less the same thing, they offer different benefits. Not sure what we mean by that yet? Don't worry, we're gonna break them down for you. Bantuan Keluarga Malaysia What this one boils down to is an improved version of the old Bantuan Prihatin Rakyat. Essentially, it's a cash handout scheme for different groups of rakyat with additional assistance for single parents and senior citizens. You can get more info and check if you qualify using this LHDN link. If you qualify but don't see your name there, you can apply for it between January 1st - 31st 2022. Program Riuh Keluarga Malaysia Finally, Malaysia's creative arts scene is getting its share of the limelight under this initiative. The government is allocating RM20 million to bring back some semblance of life and artistic expression... and also create more than 5,000 jobs within the industry of course. PerantiSiswa Keluarga Malaysia To help them out in their studies, the government and selected telcos will be teaming up to provide students in higher education institutions from B40 families a tablet each. Application is tentatively planned to start from April to June 2022, so keep an eye out for it. Yayasan Keluarga Malaysia According to Finance Minister Tengku Zafrul, about 4,700 children were orphaned after their parents succumbed to the C19 virus. Yayasan Keluarga Malaysia was set up to take care of them and ensure they receive an education. JaminKerja Keluarga Malaysia Unemployment has been an ongoing issue that's made worse by the the advent of C19, so Jamin Kerja Keluarga Malaysia is the government’s way to generate 600,000 job opportunities in 2022. Under the initiative, the government will cover up to 40% of a new employee's salary if they belong to certain target groups like the jobless, OKU, and single mothers as an incentive for companies to hire them. More detailed info here. Kasih Suri Keluarga Malaysia Very simply, this is an initiative that gives housewives and widows the same financial safety net that workers would have through EPF and SOCSO. By contributing a minimum of RM5 a month, you'd be eligible for benefits such as an extra RM480/year into your account, EPF dividends, and financial assistance in case of disability and death. In other words, it's saying that being a housewife is an actual full-time job. More info and application instructions here. 2. MySalam is actually free government health insurance MySalam is basically a free insurance scheme which benefits Bantuan Keluarga Malaysia recipients and their children. How does it work? Once an eligible recipient gets diagnosed with one of the 45 critical illnesses like Alzheimer's, cancer, or kidney failure; they'll receive a one-time RM8,000 cash payout PLUS a RM50 daily hospitalization income replacement up to RM700 per year - but only if they're hospitalized at a government, military or university hospital. You can check your eligibility through the MySalam website link here. If you were a recipient for the previous Bantuan Prihatin Rakyat and don't have MySalam yet, you can send an email to info@mysalam.com.my or call their hotline at 1-300 888-938. 3. You can get free private insurance with Perlindungan Tenang Voucher We're guessing it's called Perlindungan Tenang Voucher because it's a voucher that can provide you with peace of mind with private insurance protection for just a few ringgit per month. Previously, the voucher was worth RM50 but this value has been increased to RM75 for 2022. What can RM75 buy, you ask? Well, multiple insurance providers have different plans and prices under the Perlindungan Tenang initiative - like this one from Allianz - and they cost less than RM50 per year. Not just that, starting from next year as well, the Perlindungan Tenang Voucher can also be used to buy comprehensive motorcycle insurance for bikes under 150cc. You can check your eligibility on the MyPTV website linked here. 4. MyDIGITAL is a tech upgrade for Malaysia Instead of one singular initiative, it's probably more accurate to call MyDIGITAL a national roadmap to develop our country's digital economy. We won't bore you with everything we've gleaned from this 104-page PDF on MyDIGITAL; we'll just leave you with some touchpoints: Improve relevant infrastructure to encourage the adoption of cloud storage across Malaysia Roll out 5G and make it affordable and accessible to all Put more stock into cybersecurity in general MyDIGITAL aside, those between 18-20 years old, along with full-time students at higher education institutions can get RM150 via selected e-wallets under the e-Start scheme. We'll have to wait to know which e-wallets exactly, but we're pretty sure your favorite ones are gonna be there. 5. MySTEP is a pitstop for your next career step MySTEP is somewhat similar to JaminKerja Keluarga Malaysia in the sense that it's also an initiative to generate job opportunities but, unlike JaminKerja Keluarga Malaysia, MySTEP focuses on short term contract employment and training. The short term contract jobs are offered by agencies within the public sector, and government-linked corporations (GLC) such as PETRONAS, PNB, EPF, and Khazanah. It's mainly geared towards fresh grads and those out of a job, and you can check the full list of requirements here. 6. Skim Semarak Niaga gives cheap loans to small businesses Aimed mainly at micro, small and medium-sized businesses, the Skim Semarak Niaga umbrella offers microcredit loans to entrepreneurs who need a cash injection to reinvigorate their operations. What sets Skim Semarak Niaga apart from regular bank loans is that the repayment of the micro loans are made easier with interest as low as 0%, a 6 - 12 month moratorium, and easy approval. These loans are offered through agencies like TEKUN, BSN and Agrobank. What's more interesting, there are also alternative financing methods like equity crowdfunding and peer-to-peer financing. Why are there so many names, anyway? Yes, the amount of names can seem a little intimidating, but there's a good reason for that. The list of government assistance initiatives are ever-growing, so they'll need new names whenever a new scheme comes up, or rebrand an existing one. If you think about it, having unique names for the schemes also helps if you need to Google it (how do you think we found all of these?). For Budget 2022, the MOF asked the public for suggestions, and worked with 80 focus groups, NGOs and associations to gather close to 50,000 ideas - making it the biggest and most comprehensive budget they've come up with. There should be something for everyone, so check out the Manfaat Bajet 2022 site to find out more."
"B.H. Oon, the lawyer who opened the doors for women to practice law in Malaysia In April 2019, history was made when Tengku Maimun became Malaysia’s first female Chief Justice. She is the 10th Chief Justice and after 9 men, Malaysia finally saw a woman leading the judiciary. [READ MORE: 5 things you need to know about Malaysia’s first female Chief Justice] But did you know that like Tengku Maimun, there was another powerful lady in the legal world who was born over a hundred years ago? She was our first female lawyer and her work had a great impact on Malaya and eventually Malaysia, when it was formed in 1963. There’s so much that we can tell you about her, but here are some things we found interesting, especially since female lawyers were rare at that time. Her name was Lim Beng Hong, and she is better known as Mrs B.H. Oon. 1. She’s the first Malayan woman admitted to the English Bar Mrs Oon was no stranger to the legal world as her brother-in-law was a lawyer and her own brother was going to be one. So, after teaching for three years in her ex-school in Penang, she went to England to get a law degree. But in order to be a practicing lawyer, a law degree alone is not enough and you’ll have to be called to the Bar, where you take another exam before you can be qualified as a full- fledged lawyer. So, Mrs Oon applied to the Bar in England, and she got admitted to the Inner Temple, one of the four ‘divisions’ of the English Bar. Remember how we said that her brother was also studying to be a lawyer? An interesting fact is that she was called to the Bar on the exact same night as her brother, even though they had completed their law degrees at different times. 2. She’s the reason women can be lawyers in Malaysia After she had been called to the English Bar, she didn’t stay in England for long and returned to Penang in 1927 to get married. She wanted to practice law in Malaya after getting married, so she had to apply to the Bar here as well. The thing about being called to the Bar is that most countries require you to be called to their own Bar before you can practice as a lawyer in that country. So, Mrs Oon applied to the Bar of the Straits Settlements and the Federated Malay States, as it was known then. At the time, though, the country’s law didn’t allow for women to be admitted to the Bar in Malaya. However, Mrs Oon didn’t back down just like that. The law was actually changed to admit her to the Bar, making her the first woman to be called to the Bar in Malaya. But for the next 8 years, there was a whole dispute on whether this change was legal or not. Finally, in 1935, the Chief Justice of the Kuala Lumpur Supreme Court decided that it was indeed legal and Mrs Oon continued practicing law in Malaya. The best part is, when she was admitted to the Bar in Malaya, her brother was also admitted to the same Bar on the same night, just like when they were admitted to the English Bar. 3. She was more than just a lawyer While Mrs Oon was busy being a lawyer and helping those around her, war broke out in Malaya and the country was occupied by the Japanese. Mrs Oon went on to live in Singapore during that time, but the Japanese took over Singapore as well. It was highly risky, but during this time, she was willing to help smuggle letters for prisoners of war in Singapore’s Changi Prison. When the war ended and the British took rule of Malaya once more, a Federal Legislative Council was formed. The British wanted Malaya to be able to make its own laws before it could be granted independence. So, this Council was basically the Parliament of that time. Two women were appointed as members of this Council, and one of them was Mrs Oon. She was a member of the Council from 1948 to 1955 and she played a huge role in the creation of many of the laws that we have today. Mrs Oon also dabbled in politics, being a prominent figure in the Labour Party of Malaya. Like all political parties during an election, the Labour Party also had their manifestos. In one manifesto, there was a Women’s Charter to give women more of a voice and more rights. It was Mrs Oon who had created this charter. In 1971, she became the President of the International Federation of Women Lawyers, an organization that provides legal aid among many other things, especially for women and children. 4. She won a case against the Government of Penang Mrs Oon won cases for others as a lawyer, but there was this time when someone brought a case against her! And this wasn’t just any random person, but the Government of Penang. You might remember that we mentioned Mrs Oon is from Penang. She had a home there and this dispute between her and the Penang government was regarding the land surrounding her home. This issue had been going on from 1962 up to 1971, and we’re not going to get into the details because it’s pretty lengthy. But basically, the land was near the sea and the sea shore formed the land’s boundary. This boundary had changed over time due to the water from the sea. As the boundary had changed, the government wanted to claim a strip of land that they said was no longer a part of Mrs Oon’s land. Long story short, the court said that the strip of land did not belong to the government. The court also made the government pay Mrs Oon and her family for taking them to court! 5. She received an OBE, one of Britain’s highest awards An OBE, which stands for Officer of the Order of the British Empire is basically an award from the British empire granted to someone who has contributed a great deal in their respective field of work. Mrs Oon was awarded an OBE in 1953 to recognize not just her work as a lawyer, but for her contribution to society as well. Mrs Oon continued to be a lawyer and be politically active for many years after that. From fighting many criminal cases to establishing the first MCA branch in Seberang Prai, Mrs Oon worked hard for her country until she passed away in 1979 at the age of 81."
"7 MORE Malaysian laws you didn't know existed We hear of laws being passed from time to time and many of them, such as the Communications and Multimedia Act 1998 and the Penal Code often make the headlines. But these are only a small fraction of the actual number of laws that have been passed over the years – Parliament has passed over 800 laws – that cover things that range from the mundane to the completely unexpected. We usually associate laws with punishments and “doing something wrong”, but a lot of the time laws also help to clarify how or when something can be done – kinda like how a shop’s return policy would have certain terms and conditions to prevent someone from returning a shirt 6 months later. So when you consider the scope of activities that go on in an entire country that need to be clarified or controlled, you’re bound to get some super-niche laws like…. 1. There’s a law for… Pineapples?! Yup, you read that right. In 1957, the government came up with an Act just for pineapples. And no, they didn’t pass this Act to penalize those who think that pineapple and pizza go well together, although they should have. You may not know this, but pineapples are a great source of income for Malaysia. The Pineapple Industry Act is all about protecting activities related to growing, canning and selling pineapples. Pineapples are so special, that the Act stipulates that people in each layer of the production line must be registered. From the pineapple grower, vendor, canner and exporter, everyone has to have a license from the Malaysian Pineapple Industry Board. To put into perspective how serious this pineapple business is, let’s take a look at Section 14(2) of the Act, which says: No person other than a registered can-supplier shall make, re-form or import any cans for the canning of pineapple. As you can see, even the cans that are used to can the pineapples must come from a registered can- supplier! So if anyone grows, sells, cans or exports pineapples without being registered, they will be committing an offence under Section 14 of the Act and and if convicted, they will have to pay a maximum fine of RM 10,000. But this Act applies only to those in the pineapple business. So if you have a pineapple tree in your house for your family’s consumption, this won’t apply to you. And you can happily make all the pineapple tarts you want. 2. There’s a law for…. Midwives?! Midwives have a been a part of Malaysian culture for the longest time, especially in more rural parts of the country and they are highly respected. But did you know that the Midwives Act 1966 states that midwives need to be registered with the Midwives Board? The passing of the Act was very important, to prevent women from using the help of unskilled midwives, as this can pose great risks to mothers and their babies. Section 14(1) of the Act states: Any person who, not being a midwife registered under this Act, practises midwifery, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding two thousand ringgit or to imprisonment for a period not exceeding one year or to both. Basically, once you have the relevant qualifications to be midwife and you intend to practice as one, you need to register with the Board. Practising as a midwife without registering means that you could go to jail for a year, be fined a maximum of RM2,000, or both. However, this Act doesn’t apply to the traditional bidan in rural areas, as they are skilled and have many years of experience. But it does apply to traditional midwives who have obtained a certificate to be a rural health nurse. 3. There’s a law for…. Time?! For over a hundred years, we’ve had a few different time zones. Some of them were by choice and some of them were not. The British Malayan Mean Time and Singapore Mean Time were used in early 1900s. We even followed the time in Japan when the Japanese were here! It’s not uncommon for a country to have two timezones. The US, as an example, has nine. But did you know that one point, Malaysia had two different time zones at the same time? From the time Sabah and Sarawak joined the Peninsula to become Malaysia in 1963, up until 1981, Sabah and Sarawak were 30 minutes ahead of the Peninsula. In 1981, when our then (and current) Prime Minister, Tun Dr. Mahathir took office, he wanted both Peninsula and East Malaysia to follow the same time. This idea was debated in Parliament and it was decided that those living on the Peninsula would have to move their clocks 30 mins ahead to match the time in Sabah and Sarawak. And that is how the Malaysian Standard Time Act 1981 came to be. But here comes the interesting bit. Section 2(2) of the Act states: The Yang di-Pertuan Agong may from time to time by notification in the Gazette prescribe such other period in advance of Greenwich mean time to be Malaysian standard time. This means that technically, our Yang di-Pertuan Agong has the power to “change our time zone”. This doesn’t mean that we could have the same time as the UK, but as an an example, West Malaysia could revert to its time zone prior to the passing of this Act. 4. There’s a law for…...Nuns?! A lot of you would have watched The Nun, but you probably didn’t know about this unique group of nuns in Malaysia. They’re called the Good Shepherd Sisters and they’ve been here for a looong time. In 1973, the Good Shepherd Nuns Incorporation) Act was passed to give them the status of a Corporation. This Act allowed for them to have legal status.This means that they can sue and be sued. They can also own property, immovable (such as a house) and movable (eg. car). Normally, religious institutions don’t have such legal status. Any legal dispute will be between two or more people representing their respective institutions. But this is not the case with the Good Shepherd Sisters, who on their own are seen as one legal body. Most religious institutions don’t have laws to govern them (not ones made by Parliament at least), so that’s what set the Sisters apart. There’s also a law for when the Sister Superior (the Head) is changed. Section 4 of the Act says: A notification in the Gazette of the appointment of any person to hold, or act in, the office of Sister Superior of the Good Shepherd Nuns in Malaysia shall be conclusive evidence that such person was duly authorized and appointed. Basically, the Sisters will have to give a notice to the Gazette to inform them of a change of Head. What’s the Gazette, you ask? It is a Federal or State Government official notification that goes into the government’s public journal. Think of it as a government newspaper that has public and legal announcements in it. 5. There’s a law for…...Dead bodies?! The thought of donating your body for medical research after death may be a daunting one. But as it’s noble thing, some people may consider it, especially those who are terminal. To clarify how donating your body for medical research works, the Human Tissues Act 1974 was passed. The Act basically allows for someone to have legal possession of your body after death. This person, who is legally authorized, will hand over the body to the relevant authorities who will oversee the donation. Your consent to donating your body needs to be made orally or in writing. Also, make sure that you have 2 witnesses present at the time. Now you must be wondering if you can change your mind at any point or if someone can object to the whole thing. The answer is yes! And this can be found in Section 2(2) of the Act. Without prejudice to the foregoing subsection, the person lawfully in possession of the body of a deceased person may authorize the removal of any part from the said body for use for the purposes aforesaid if, having made such reasonable enquiry as may be practicable, he has no reason to believe— (a) that the deceased had expressed an objection to his body being so dealt with after his death; or (b) that the surviving spouse or any surviving next-of-kin of the deceased objects to the body being so dealt with. So if after agreeing to donating your body, you feel like you don’t want to go through with it anymore, you can opt out of it. Or if your family members don’t agree to the donation, they can object. In both instances, the legally authorized person will no longer have possession of your body. 6. There’s a law for…..determining who died first?! Sometimes age really matters, and this is one instance. Picture this: Jack and June are married to each other without children, and they own a house. Unfortunately, they both died in a car crash. So...does the house belong to Jack’s next-of-kin, or Jill’s? Because Jack is older than June, Jack is presumed to have died first. The title to the house will then go to June (or rather, her next of kin). But why is that? The Presumption of Survivorship Act 1950 is the reason behind this, and the crux of this law can be found in Section 2: In all cases where two or more persons die in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court) for all purposes affecting the title to property be presumed to have occurred in order of seniority and accordingly the younger shall be deemed to have survived the elder. It states that in a case of two or more people dying in the same incident and no one knows who died first, the assumption is that the older person died first. He would have the title to whatever property that existed at the time. However, the younger one is presumed to have survived the older one(s). This is because younger people are generally presumed to have youth and good health and therefore would have “outlived” the older of the two. And because of this presumption, the younger one will have the title to the property. 7. There’s a law that…. allows women to get sued?! For many, many years, women couldn’t vote, legally own anything or sue anyone. Before laws were made or amended to change this, the common position was that the husband was always the legal representative of the wife. For example, a husband used to be responsible if his wife committed a tort (a civil wrong that you can be sued over) or entered into a contract. This included torts and contracts that took place before the marriage. So if you were a married woman and someone wanted to sue you, they had to sue your husband instead, because he was the one with legal capacity. In 1957, after the Married Women Act was passed in Malaysia (then Malaya), husbands were no longer liable for their wives’ torts and contracts. Section 6 of the Act says: Subject to this Act, the husband of a married woman shall not, by reason only of his being husband, be liable-- (a) in respect of any tort committed by her whether before or after the marriage, or in respect of any contract entered into, or debt or obligation incurred, by her before the marriage; or (b) to be sued, or made a party to any legal proceeding brought, in respect of any such tort, contract, debt or obligation. A wife can be sued and now, she also has the legal capacity to sue someone. Her husband is no longer responsible for her, in terms of her legal obligations and responsibilities. And thanks to this Act, a married woman can now legally own property. [READ MORE: 7 Malaysian laws you probably didn't know existed (that can still get you in trouble)]"
"Can you sue the PDRM if they respond too late to your emergency call? When you’re in danger or you feel unsafe, the first thing you will most likely think of is calling the police – with the expectation that they’ll arrive within minutes to make everything safe again. But what if they don’t arrive on time? If you’ve never had the need to call the police, then imagine the following scenario: While waiting for the bus home, a fight breaks out next to you. You see that the group has knives on them and there’s a chance things are going to turn ugly, potentially endangering innocent bystanders as well. You do your civic duty and immediately dial 999. Minutes pass but there is still no sign of the police. If you were in such a situation, you would be expecting help to come almost immediately after you dial 999. After all, it’s the police’s job to keep us safe, right? But for many reasons, the police may not be able to get to us fast enough. Or more accurately, they may not be able to get to us as quickly as we want them to. This is where we point out the difference between relative (subjective) time, where you may perceive time to move slower when you’re in a state of panic or danger; and actual time which (easily enough) follows a clock. For the purposes of this article, we’re looking at actual time that the police might take to show up. So, does PDRM just come as soon as they can or do they have a time limit by which they should reach you? The PDRM should arrive within 8 minutes The PDRM does have a time frame by which they should respond to calls and the current benchmark is 8 minutes. While this is not a law on paper, this is part of their Standard Operating Procedure (SOP) and is currently a part of the government’s 11th Malaysia Plan to reduce crimes and improve public safety. In 2015, the target time was under 10 minutes. Surveys conducted have shown that the decrease in response times have yielded good results. However, the target time in the SOP may be a bit difficult to adhere to at times for various reasons. Some of them are: distance from the police station to location of caller details given by caller were not clear enough a lack of staff in police stations An article by Channel News Asia also states that, as of November 2018, more than 500 out of a total 791 police stations across the country are understaffed. This is a huge problem because even if PDRM wants to send help immediately, they may have insufficient personnel to send out to respond to emergencies. But regardless of the reasons, a person’s safety or life may be at stake, so the question still remains... Can PDRM be sued for arriving late? Whenever we mention “suing” or “lawsuits”, what we’re actually referring to is something called a tort. You can read our article on it below, but essentially a tort is a wrongdoing that isn’t a criminal offence, that you can claim compensation for (usually in the form of money). There are many different types of torts, but when it comes to the police arriving late, it’ll likely fall under the tort of negligence. [READ MORE: Did you know you can be taken to court for something that is NOT a crime?] To see whether responding to a call late amounts to negligence or not, we need to take quick lesson on the law of negligence. The law on negligence is derived from a set of past court cases, instead of a law passed by Parliament. In short, if someone is said to be negligent, they... need to have a duty of care towards you they must have breached that duty you must have suffered some harm as a result of them breaching that duty But here’s the plot twist – the police do not owe you a duty of care. This might not make any sense, but allow us to explain further. the police owe a general duty of care to everyone, not specifically to you. This means that all calls received by the police are important and prioritizing one over the rest would be unfair. Our research shows that thus far, no Malaysians have sued the police for sending help late. However, the UK case of Michael v Chief Constable of South Wales Police [2015] may give you an idea of what might happen if you tried. Joanna Michael had called the police saying her boyfriend was going to kill her. The call was picked up by a further police station who then transferred the call to a nearer police station. The first police station had correctly graded her call as urgent. But when the call was transferred to the nearer police station, the operator didn’t mention that Joanna had said someone was going to kill her. This caused the second police station to grade the call one level lower than urgent. By the time the police arrived at Joanna’s house, she was dead. Her family took the police to court, saying that they were negligent for not sending help fast enough. But the Supreme Court held that the police were not negligent. Two of the reasons were: For fear of being sued, the police might attend to certain people first, and this would be unfair to the public as a whole. If many people were unhappy with how fast the police responded to them, many would sue the police and there would be a floodgate of claims. This would then be a financial burden on the police. Therefore, while you could still try and sue the police as Joanna’s family did, the claim will most likely not succeed due to the fact that the police do not owe you a duty of care personally. There’s also a time bar which you must take into account. Section 2 of the Public Authorities Protection Act 1948 states that any claim brought against an enforcement officer must be made within 3 years of the incident. What else can you do if you can’t sue? If you cannot or think it’s not worth suing, your best option is to make a complaint to the District Police Headquarters (IPD). If no action is taken, you can make a followup complaint to the Enforcement Agency Integrity Commission or the Suruhanjaya Integriti Agensi Penguatkuasaan. They take complaints on enforcement officers who have failed to perform their jobs properly. For more information on what the EAIC does and how to go about making a complaint: [READ MORE: M'sian authorities have to investigate if their officers mess up. But what if they don't?] PDRM is aware of the problem and is taking measures to improve their response times. It has also come up with apps to make reporting a crime faster and a lot simpler. This will help in cases where the victim cannot speak, for example, and will help prevent inaccuracies in information due to the phone lines not being clear. Apart from that, more vehicles have been given to PDRM so that a patrol car can reach you even sooner. These cars also well equipped with the technology that allows for better communication with call handlers as well as the callers themselves. If you’re ever in a situation where you strongly feel PDRM should be answerable, consult your lawyer on the best way to go about it."
"If you win a lawsuit in Malaysia but the loser doesn't pay, here's what you can do THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect ASKLEGAL's position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article. by Carly Yap | carly@chernco.com.my | CHERN & CO. Yes, you have won the suit, and yes, the Judge has pronounced the Judgment in your favour. But what happens when the losing party refuses to pay up? In this event, you ought to consider taking out Garnishee Proceedings to enforce the Court Judgment. What is a Garnishee Proceeding? Briefly speaking, a Garnishee Proceeding is one of the many modes of enforcement for a Judgment Creditor to recover monies due and owing under a Court Judgment against a Judgment Debtor, from third parties. In a given scenario, there are two parties in a legal proceeding, namely Party A and Party B. Party A wins the case, and the Court has ordered Party B to pay RM100,000.00 to Party A. Hence, Party A is now known as the 'Judgment Creditor', and Party B known as the 'Judgment Debtor'. The RM100,000.00 ordered by the Court is called the 'Judgment Sum'. When the Judgment Debtor fails or refuses to pay, you as the Judgment Creditor may choose to enforce the Judgment by applying for a 'Garnishee Order' to garnish the amount awarded under the Judgment against third parties called 'Garnishees'. In some instances, there might be only one Garnishee. Most commonly, Garnishees are merchant banks where the Judgment Debtor holds an account with. In other situations, a Garnishee can also be a third party who has debts owing to the Judgment Debtor. How does a Garnishee Proceeding work? In an application for a ‘Garnishee Order’, you may name more than one Garnishee in the proceedings. There are two stages to the application, namely; The 1st stage is an application for Ex-Parte Garnishee Order, and; The 2nd stage is for Garnishee Order Absolute. “Ex-parte” in this context simply means that the Court Order can be obtained without the presence of the Judgment Debtor and the Garnishee at the hearing. Once your lawyers obtain the Ex-Parte Garnishee Order, it will be served on the Garnishee to “show cause” at the hearing for the Garnishee Order Absolute. By this stage, the Garnishee, such as the bank, will typically inform you as to whether debts are owing to the Judgment Debtor and whether the amount is sufficient to satisfy the Judgment Sum. Also note that by this time, any bank account(s) garnished by the Ex-Parte Garnishee Order would have been suspended, and the Judgment Debtor will not be able to have any access to his or her monies. Provided that there is no dispute at the Garnishee Order Absolute stage, the Court will generally make the Garnishee Order Absolute for the banks to release the amount garnished directly to you. What happens if your bank account is Garnished? Now, what if you are on the other side, the Judgment Debtor and your bank have just informed you that your account is now frozen? In that case, please be advised that the bank is only allowed to garnish the amount stated in the ex-parte Garnishee Order. If the monies in your account are in excess, the bank can only freeze a portion of your account, and not the entire sum. Further, the bank cannot release the amount garnished in your account to the Judgment Creditor until and unless a Garnishee Order Absolute has been obtained. As always, it’s vital to seek expert advice before beginning the legal process to enforce Court Judgments. Besides, there are other options for a Judgment Creditor to enforce and recover Judgment Sum other than Garnishee Proceedings. In that respect, consult a qualified lawyer to advise you on the most feasible and options for you to recover your Judgment Sum OR to defend against any enforcement proceedings against you. Carly Yap is a Senior Lawyer with the Litigation Division of CHERN & CO. – A Commercial law firm specializing in all aspects of corporate & commercial laws. Her primary areas of practice in civil litigation include commercial, land and insolvency. She can be reached at carly@chernco.com.my"
"There are no regulations for cetak rompak vapes in Malaysia. Here's why it's a problem While it’s not uncommon to see someone puffing on a vape pen nowadays, the idea had actually been around since the 1930’s; when the first patent for an ‘electric vaporizer’ was granted. However, it wasn’t until 2003 that the first modern e-cigarette was invented by a Chinese pharmacist named Hon Lik which paved the way for vaping to become an industry in itself. While we don’t know the motivations of the people before them, Hon Lik and the founders of many vape companies such as RELX have stated that they were driven to find a safer alternative to cigarettes and a better way to quit smoking. But just to be clear, this isn’t an article advocating vaping. In fact, it’s hard writing the sentence above without acknowledging that there really isn’t much research on the long-term effects on vaping since it’s so new – whereas proper studies on the health effects of cigarettes have been conducted since the 1930’s. Since this writer has joined the ranks of many smokers who have replaced their cigarette box with a vape pod, we thought it’d be interesting to look into the laws and regulations of the vaping industry……...except there aren’t any of note. Other than the existing smoking ban in public places, it might be surprising to know that there aren’t any measures to regulate the manufacture and sale of vapes in Malaysia. What might be even more surprising is that the ones asking for regulations are vape industry players such as the Vape Consumer Association of Malaysia (VCAM) and the Malaysian Vape Chamber of Commerce (MVCC). And the reason they’re asking to be regulated is because… Counterfeit and compatible vape pods are totally uncontrolled Most vapes being used nowadays are pod-based, where the juice is contained within a small pod that’s replaced once it’s empty. While this is more convenient, it can also be more expensive in the long run when compared to refillable box vapes. And any vaper who’s tried looking for a cheaper deal would have definitely come across compatible pods which claim to work just as well, for less money. While you might see a parallel between this and compatible printer ink cartridges, the difference is that ink from a bad compatible cartridge only ends up on a piece of paper. Juice from a bad compatible vape pod ends up in your body. But how bad is bad? Well, according to VCAM President Tengku Ashlahuddin: “Most of these compatible pods are manufactured in make-shift manufacturing facilities with no quality control standards and often use recycled or discarded materials. By not utilising proper, safe materials and ingredients, these illegal, fly by night companies often exploit consumers by selling poor quality products for a cheaper price while claiming their pods work with original vape devices.” Basically, because unofficial pod manufacturers have no real standards to follow or a reputation to uphold, there’s no guarantee that they’ll be adhering to any sort of certification, testing, or any truth in their labelling other than that it works with your device. Similarly for counterfeits, the only criteria is that the item looks as close to the original as possible. So, aside from a possible lack of safety and quality in the materials and ingredients, you might end up getting some unwanted extra ingredients in these pods. Ciplak vape pods may contain toxic chemicals and unwanted levels of nicotine You might remember the ‘popcorn lung’ vape-related illnesses and deaths in the US (and the first Malaysian case) which was blamed on the popular JUUL vape pens. Later investigations found that the illnesses were linked to the use of compatible or altered JUUL pods that contained THC – so you could vape a joint. While a great idea, the problem was that these THC pods also contained vitamin E acetate, used to thicken or dilute vape juice but basically sticks to the lungs once inhaled. Ever since this was discovered, reputable vape juice manufacturers have removed the ingredient if it was ever used in their formulas. When RELX lab-tested compatible pods, they found that these pods often contained levels of methylbenzene, toluene, xylene ethylbenzene, and other compounds which were much higher than acceptable standards. We recommend that you take a look at their article here - although you’ll need to find a way to avoid being directed to the RELX Malaysia site. In addition to the high levels of certain substances, the RELX tests also found that the juice found in compatible pods also didn’t contain the nicotine level printed on the package. A similar result was also found in a local study published in 2018 that tested the nicotine levels of vape juices found in the Malaysian market, and manufactured in China and Malaysia. Out of the 69 samples, 60 of them significantly didn’t contain the nicotine level stated on the label, with a majority being lower than advertised. In other words, this either means that you’ll be getting a less satisfying hit than you expect, not reducing your nicotine intake as you thought, or not knowing for sure if your nicotine-free juice is actually nicotine-free (if you’re trying to quit). A law was drafted to regulate vapes in 2021, but… There are a couple of twists here, the first being that the sale of nicotine-based vape products have actually been restricted since 2015 under the Poisons Act 1952 – which is why you can only find 0% nicotine pods at the official sales channels for most well-known brands. The second is that the government has actually been working on new laws to include stricter control over the use, sale, promotion, and health-related labelling of e-cigarettes/vapes. However, the catch is that they’ll only apply to non-nicotine juices. In fact, the Budget 2021 announcement included a tax of RM0.40 per ml on vape juices, but the guidelines released by the Royal Malaysian Customs specifically mentioned that this only applied to vape juices that didn’t contain nicotine. It’s probably not a far stretch to think that most vape juices sold in Malaysia contains nicotine – which the MVCC put at “more than 97 per cent” – so this implies that any regulation or taxes won’t have much of an effect if it’s only constrained to non-nicotine ones. “The Government has already announced in the Budget 2021 that starting 1 January 2021, excise tax is imposed on vape products. While MVCC sees this as a step in the right direction towards regulation, more importantly the tax regime needs to be broadened to also include e-liquid containing nicotine and be complemented with regulations especially in relation to allowing and regulating the use of nicotine in e-liquid” – quoted from Study on the Malaysian Vaping Industry, by the Malaysian Vape Chamber of Commerce (MVCC) Of course, the other solution is to ban vapes altogether, but Tengku Ashlahuddin argues that killing a supply when there is a demand leads to an illegal black market. While the effects of the alcohol ban during the US Prohibition era is an evergreen example (Spoiler: it led to the creation of the American mafia and organized crime), Tengku Ashlahuddin gives a more specific one involving Juul. Basically, Juul voluntarily stopped selling fruit-flavored vape pods in the US after facing pressure from the Food and Drug Administration (FDA) in 2018. While one study in 2019 found that users just changed flavors or moved on to other alternatives, another report by CNBC found that this move left a void in the market that quickly became filled with both compatible and counterfeit Juul pods. Raids on factories making counterfeit pods found super-unsanitary conditions where liquids in dirty containers were squirted into pods using ketchup bottles. Worse, they were sold at a higher price than what the originals used to cost because sellers could claim they were “rare”. “The study highlighted the limits of self-regulation from e-cigarette companies, and the government needs to play a more definitive role in regulation to curb misuse of vape and impose strict guidelines on manufacturing and sales.” – Tengku Ashlahuddin So until then, if you’re already vaping, you might want to consider sticking to original pods from your brand of choice and checking the authenticity if you’re able to. If you’re a non-smoker/non-vaper reading this for some reason, don’t start."
"What Malaysians can do if they get tricked into entering a business agreement THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect ASKLEGAL's position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article. by Jonathan Khaw | jonathan.k@chernco.com.my | CHERN & CO. Recently, the most common complaints we received from our clients involved the buying and selling of personal protection equipment (“PPE”). We have seen businesses fraudulently claiming that they have ready stock of gloves or misrepresenting themselves to be acting for major gloves companies. Hence, they supposedly have direct access to these items. Once payment is made, the Buyers would often realize that the Seller never has ready stocks of these PPEs in the first place, and some even could never meet order requirements in time, due to the global shortages of PPE items. Hence, in this article, we will focus on one of the legal options you may have against Company Directors for fraudulent misrepresentation. Lifting the ‘Corporate Veil’ A Seller company is often a private limited company and a separate legal entity. At the same time, it is true that the Company, under normal circumstances, is solely liable for all the acts done and the debts incurred, and not the Directors. However, we wish to point out that you can and should seek legal redress to make these Directors personally liable for your loss and damages if these Directors have made fraudulent representation to you in their capacity to induce you to pay his Company. We call this the lifting of the Company’s ‘corporate veil’. By doing so, we aim to hold the Directors personally accountable for their fraudulent acts, notwithstanding the transaction is between 2 companies. The rationale is that nobody should be allowed to rely on the protection of a corporate veil (i.e. Sdn Bhd.), as a device or façade to conceal their own wrongdoings. [READ MORE: If a Malaysian company that owes you money goes bankrupt, can you sue the boss to get it?] Test for fraudulent misrepresentation In a nutshell, fraudulent misrepresentation is the most serious, where a false statement is dishonestly made to you upon which you rely and depend. As a consequence of relying on that (untrue or misleading) statement, you suffer damages. Now suppose you wish to sue someone, or a business, for fraudulent misrepresentation. You should understand the elements you must prove in Court, so that you are aware of the evidence you need to prepare in advance to introduce at trial to satisfy those legal requirements and, hence, their required burden of proof. If you are seeking to demonstrate that you relied on a misrepresentation made by others – a vital step in raising claims of fraudulent misrepresentation – generally have to prove the following:- There must be a representation of fact by words or by conduct, and mere silence is not enough; The representation that was made to you must be made with the knowledge that it is false, ie, it must be wilfully false or at least made in the absence of any genuine belief that it is true or recklessly (ie, without caring whether his representation is true or false); The representation must be made with the intention that it should be acted upon by you, in the manner which resulted in damage to you; You must prove that you have acted upon the false statements; and You must prove that you have sustained damage by so doing. Practical Advice There are some practical points and best-practice tips arising from the law of misrepresentation generally, of which all businesses should be aware. Having a Sale and Purchase Agreement (SPA) drafted out is highly recommended. At the very least, an SPA should act a good checklist, providing a clear path for the transaction. Always carry out due diligence on potential suppliers or vendors. But as we have experienced, it has its sets of challenges. Always ensure you keep complete and accurate records of the trail of correspondence. Take legal advice immediately if you think you may have suffered loss having relied on a misrepresentation. Keep in mind that a misrepresentation that does not have a material effect on the agreement does not give rise to a legal action. Finally, it may be helpful to remind ourselves of the age-old adage that ‘if something seems too good to be true, it probably is’. Whether you've been sued for fraudulent misrepresentation or believe you have entered into a contract under false pretences, the stakes are relatively high for your business and interest. Jonathan Khaw is the principal lawyer of CHERN & CO. – A Commercial law firm specializing in all aspects of corporate & commercial laws. Jonathan was a foreign consultant at Tilleke & Gibbins, a leading international law firm in Bangkok, Thailand before setting up CHERN & CO. He can be reached at jonathan.k@chernco.com.my."
"Condo managements in Malaysia can now sue developers for defects in your building If you’ve read any of our condo management/developer articles, it’s usually to do with how can you sue them, how they can sue you, or just what to do if you have an issue with them, in general. [READ MORE: 5 things Malaysian condo owners can sue their management for] [READ MORE: 4 things your condo management can sue YOU for in Malaysia] But recently, there was a rather interesting case of a condo management who sued the developer nearly 10 years after the housing was built. Specifically, it was the management corporation who sued the developer for cracks and damages in the common area, meaning the places that are shared by all the residents. But in order for you understand the story better, you must first know that... Strata properties have 3 types of condo managements If you own a strata property, such as a condo, apartment or any gated property, you would have a management that runs the place. Besides maintaining the area, the management body is legally obliged to collect maintenance fees and sinking funds from you, impose certain rules, provide security for the area, and so on. Now, if you didn’t already know, your management will actually take different forms over the course of a few years, meaning that the management body that you had when you first bought the house will be different from the one you have 10 years later. This is basically how that progression happens: Developer — the people who develop your property will be the first ones to manage it. But they can do this only for the first year, after which they need to make way for the next one. In order to do that, they’ll need to have an Annual General Meeting (AGM) to allow residents to vote for who they want the next management to be Joint Management Body (JMB) — this is made up of some homebuyers as well as the developer. They are required to have AGMs to discuss any issues and they’re allowed to run for a few years. But they can only be there for as long as the strata titles haven’t been passed to the homeowners. If you’re wondering what this is, it’s essentially the full legal ownership of the house being fully transferred from the developer to the homebuyer Management Corporation (MC) — this is the final management body that runs the place, but like we said, this can only happen when all the homeowners have received their strata titles The specific duties and responsibilities of each type of management can be found in the Strata Management Act 2013. Now that you know the distinction between the 3, we can get back to the story. A management corporation sued a developer for defects In the recent case of Dua Residency Management Corporation v Edisi Utama Sdn Bhd, it was the management corporation (MC) who decided to take the developers to court, so no homebuyers were involved here. The problem started way back in 2010 when some cracks and defects started appearing in common areas shared by all the residents, such as the swimming pool. More and more defects started appearing over the years, and finally, in 2019, the MC decided to sue the developer. We’re not going to go into the judgment in detail, but we’ll tell you the outcome of the case. The MC sued the developer for two things: breach of contract- the MC sued them for this stating that the developer went against their contract by providing poor quality of service, which is why the cracks started appearing. The court disagreed stating that the agreement is only between the developer and the homebuyers, NOT between the developer and the management. This meant that only the homebuyers could sue the developer for breach of contract. breach of statutory duty- the MC stated that the developer failed to perform their legal duty in ensuring that the building was of good quality. The legal duty is question comes from the Uniform Building Bylaws 1984 that are under the Street, Building and Drainage Act 1974. To this, the court answered that this law was applicable to a local authority, such as a Majlis and not a private body such as a developer. But the interesting bit is that the court found the developer liable for negligence, which means that developer had failed to take reasonable care in performing their duties. The court also found the management corporation had suffered losses due to the developer’s poor workmanship, as they had to cover the costs of repairs. Although the home agreement was only between the developer and homebuyers, the developer had failed to fulfill their duties, which was to provide a housing that was safe and in good condition. And although the management wasn’t a party to this contract, they were also affected by the developer’s actions...or lack of them. The court also specifically found the developer liable for the poor workmanship of the swimming pool, as the waterproofing works were done by them. However, the court said that the developer wasn’t responsible for another issue, which was the defects in the construction movement joints and open deck. This, they said, was just to do with poor maintenance and upkeep—nothing to do with poor quality of work. What does this mean for homebuyers? Even though this is a case between the developer and the management, it does affect homebuyers as well...which is why we decided to write this article for you. Like we said earlier, most cases are usually between homebuyers and developers. We even wrote a specific article on how homebuyers themselves can sue developers for cracks and other defects: [READ MORE: You now have more time to sue your developer in Msia for building defects. Here's why] But let’s say that you’re unable to sue your developer for whatever reason. The good thing is, this case allows your management body to sue for you instead. It simply gives you a better chance at getting compensated. Besides that, it also now puts more responsibility on developers to be more careful in their work because if they don’t, they might be sued by homebuyers AND management bodies. Finally, you know now that if something is up with the quality of work in your house, complaining about it to the management isn’t the only avenue available to you. Your management can actually help you get some legal recourse which can be heard in court instead of the Housing Tribunal alone. But besides cracks and defects, you might also be unhappy if the condition of your area on the whole is run down and poorly maintained. For that, you’ll need to take your management to court and not the developer. If you’re thinking of doing that, you can read the article below: [READ MORE: Can condo managements in Malaysia be sued for letting your condo become run down?]"
"Can Malaysian companies make employees download apps on their phones and PCs? Recently, one of our readers asked: “Can employers ask their employees to install certain apps on their personal mobiles?” With working from home being the norm now, it’s common to have apps just to clock in and out of work. Many employees might easily oblige thinking it’s all just part of the job. But what if you didn’t want to have any apps for work on your devices, and more importantly, can your boss make you install these apps in the first place? It all depends on your company policy We spoke to lawyer Fahri Azzat to ask if companies in Malaysia have the right to make something like this mandatory. Here’s what he told us: “It boils down to the terms of employment ultimately. If its there they can do so.” - Fahri Azzat via an e-mail interview Essentially, when you sign your employment contract, you agree to follow the company’s policies—including any future policies that are implemented. If it’s all part of the job, you most likely will just have to go with it. Of course, policies can sometimes be problematic and you can always take that up with the HR if needed, but that’s another topic altogether. Assuming your HR still tells you to install the app(s) as required, you might have no choice but to comply. But you might still be thinking of a way around this, or perhaps you genuinely can’t download a new app, because of space issues and so on. In regard to this, Fahri went on to say: “If they give you company property to use for your work it is likely they can do that. If they ask to install in your personal phone you may decline and say it is not for company use. But well, there are many others willing to do so.” Basically, you might be able to escape the policy if they’re asking you to install apps on your personal phone or PC. But if it’s for a company phone or laptop that’s strictly for work, there isn’t really much you can do. But like Fahri says, there are people who don’t mind using their personal devices for work, which might make it harder for you to go against the company policy. As you can see, the lines are pretty blurred in this situation, and one reason for that is because… There are no specific privacy laws in Malaysia You might not be able to use breach of privacy as a reason to avoid installing an app...because that’s no such law for this. Sure, there are laws that can safeguard your privacy against pesky neighbours and laws that give you the right to having peace of mind. But Malaysia doesn’t really have a fixed set of general privacy laws. Your boss can’t use this as a way to infiltrate your phone or PC, though. You might not mind having an app just to clock in and out, or to chat with colleagues. But you might start feeling uncomfortable if you’re asked to always have your location on, or if the app can access media and other files on your device. Fortunately, there’s something known as the Personal Data Protection Act (PDPA) 2010. Under this Act, there is a limit on what businesses entities can do with personal data that they’ve received. For example, if you signed up for a service and provided all your details to them, they’re supposed to keep that data safe and use it only for business purposes. If you suddenly start getting calls from random people trying to sell you something, that business provider might have leaked your contact details, and they can be penalized for this. But besides this being a limit on what businesses can do with customers’ data, it also controls how businesses handle their own employees’ data. So, just because your boss asks you to use an app for work, it doesn’t mean that they can misuse their authority and keep tabs on you all the time. Bosses who do this can get in trouble with the law. You can still say no (sometimes) It’s a fine line to draw, but there’s still a line. All in all, the answer to the question is: your boss can get you to install apps for work it’s better for them to give you devices specifically for work and have you download those apps there it can be only for work and they cannot be monitoring all your activities bosses who keep tabs on employees all the time can be penalized if the apps are strictly for work and aren’t intrusive, there’s nothing you can really do about it All this being said, we know it can be difficult to reason with higher ups sometimes. And if all your colleagues don’t have an issue installing such apps, it might be difficult to prove your point. If these apps aren’t really infringing your privacy but you’re unhappy anyway, the only way you can get your space back would be to terminate the employment contract. In simpler terms, you might just have to resign. Because if your employment contract asks you to work for the company in any manner required, and they aren’t breaking any laws, unfortunately, you’ll just need to go through with it."
"Can businesses in Malaysia refuse to take cash as payment? Sometimes, you might come across a sign that says ‘cash only’ displayed in shops. It can be a pretty common sight and it just means that you can only pay with cash in the shop, and not with a card, a QR pay code, or anything else. But what if you saw a sign that said the exact opposite, or you went to a shop that ONLY accepted cashless payments? One of our readers actually asked this question recently: Is it legal for a business to refuse to accept cash in Malaysia? Technically, they can’t We spoke to lawyer Fahri Azzat to get some clarification on this and this is what he told us: “They can't because it is legal tender.” If you don’t know what legal tender is, it’s basically a legally recognised payment method that must be accepted if offered as payment. Under Section 24 of the Central Bank Act 1958, it says: (1) Notes issued by the Bank shall, if such notes are not defaced, be legal tender in Malaysia at their face value for the payment of any amount. (2) Coins issued by the Bank shall, if such coins have not been tampered with, be legal tender in Malaysia at their face value… In short, it says that any bank notes that are issued by Bank Negara are legal tender, if the notes aren’t badly damaged. Coins that are also in good condition will be considered as legal tender—which means businesses should accept these methods of payment. Do note that this Act has now been repealed—meaning it is no longer in effect. But it’s been taken over by a new Act, the Central Bank Act 2009, which in Section 100 says: Notwithstanding the repeal of the Central Bank of Malaysia Act 1958… (g) currency notes and coins issued under the repealed Act and which are legal tender immediately before the coming into operation of this Act shall continue to be legal tender in Malaysia at their face value as provided in section 24 of the repealed Act It basically means that notes and currency which were legal tender just before this new law came to be will continue to be legal tender. So on the whole, businesses cannot refuse cash...although, there may be one exception. If the currency is badly damaged In Section 24 of the old law we mentioned above, you might have noticed that it mentioned notes that “are not defaced” and coins that “have not been tampered with”. It pretty much means that if the money is torn, broken or badly damaged, it cannot considered to be legal tender—because it would no longer have value. So the only time a business may have a legitimate reason to refuse your cash is if it isn’t in good condition. It’s been reported that many business owners throw away damaged cash or coins that they get. ATM machines don’t accept such money, and they may not be able to use the money anywhere else. But a lesser known fact is that if you ever get damaged money, you can actually exchange it with Bank Negara Malaysia (BNM) and get new money back. Following BNM’s policy on damaged money, you will: get the full value of the money if two thirds or more of the note is complete get half the value if half to two thirds of the note is complete not get anything if there’s only less than half of the note You can read up on the full policy here. What if you want to pay only in coins? Like we mentioned earlier, coins are also legal tender that must be accepted—unless they’re damaged. And while you can pay in coins, there’s actually a limit to this. Under the Central Bank Act 1958: 50 sen and RM1 coins can be used to pay up to RM10 5 sen, 10 sen and 20 sen coins can be used to pay up to RM2 The 1958 Act is no longer in effect like we said, but again, the 2009 Act does acknowledge some of the previous legal tender as legal tender that can still be used today. As you would already know, RM1 coins are no longer used, which means the maximum value of a coin that can be used as legal tender is 50 sen. So, if you try to pay for something that’s valued at RM15 with only coins, the shop can refuse to accept it—even if it is all legal tender. To sum up, businesses actually can’t say no to cash even if they prefer other, simpler methods of payment. There may be legitimate reasons as to why they can’t take cash, such as not having enough change to give you, or that the item you’re buying is very high in value. Unfortunately, there actually aren’t any laws against business owners who refuse to accept cash. So, even if they should accept it, no action can be taken against them if they refuse to do so. However, with this pandemic around, it might be best for business owners to accept only cashless payment methods to help curb the spread of the virus. It might take some time for people to get used to it, but not having to deal with physical notes and coins may be a good idea, especially at a time like this."
"Here's how to EFFECTIVELY ask your property agent (or homeowner) important questions before buying a house If you’re looking to buy a house, you probably have a rough idea of what you want. Maybe a 3 bedroom condo near to your workplace and close to amenities, and far enough from your in-laws. Check, check and check. But if you’re a first-time house buyer, there might be other things that matter, which you did not think to ask. Simply because...you don’t know what you don’t know. To help you out, we asked two agents about this: Hilmi Akmal from Polygon, and L (who prefers to be anonymous). Before looking for a property, you should know why you’re buying it. In general, most people would have three reasons to do so: For ownstay (you plan to live there) Renting it out Investing And for each of these, you would need to think of different things when looking for one. Buying for ownstay If you’re planning to stay there, then it’s actually quite subjective, as that would depend on your taste. However, there are some questions you should ask, which you might not find out even with research or a few visits. For example, there might be terrible jams on workday mornings, but most of us would probably only visit the area on weekends or after work, so we wouldn’t see these things. You could ask your agents if there are any issues or general complaints about the area. But you could be more specific and ask questions such as: Is it near a T-junction? Is it near busy entry/exit points? Is there high traffic? Is there noise from the main road? Is this a high-density area? Again, this is still subjective, because if you’re working from home and only have online meetings, traffic issues might not be a problem for you. While if you plan to start a family, you might value having school and amenities within a short distance. So you’ll need to figure out what matters to you, and what doesn’t. Some of these might sound like common sense, but surprisingly, according to L, property buyers regularly forget to ask even basic things such as layout type and the dimension of the house. And sometimes, instead of having a certain location in mind, you could just ask them about a place with certain amenities and a distance in mind. For example, maybe you’d like a place with a mosque and school nearby, and at most a 30-minute drive from your family and workplace. This will open up your choices, as your agent would typically have a lot of listings, sometimes hundreds, and could recommend you a place close to where you intended, or even a better one. Buying to invest or rent If you’re looking to invest, you generally want something that gives you bang for your buck, but also something that people would want. So you should ask these questions about the units: What is the price per square feet? What are the amenities? Is it accessible? Is it in demand? How many units are available? What is the layout? How many bedrooms/bathrooms? You ask these questions, because you don’t want to buy an overpriced property. You want to buy below market price. But you also want something that’s in demand. For example, in Cyberjaya the units are relatively cheap, but that’s because the demand is low. – Hilmi According to Hilmi, a question most seasoned investors would also ask is about the developers. As in, what is their track record, and what are their previous projects? Some seasoned investors would buy up to 3-4 properties in a year, so this is one way to figure out if the new project is worth the investment. Pro tip: If you find a nice place near a cemetery to invest in, you might be scared that this will lower the property value in the future. However, according to the agent we asked, based on info from NAPIC, where you can check annual property reports, it doesn’t really affect the value as it still goes up year by year. If you’re buying a subsale (second hand property) If you’re buying a second-hand property, unless you plan to demolish the house and build a new one, it’s worth asking if it needs a lot of repairs or renovation work. This will help you factor in the extra cost involved in buying it. You should also ask if there are underlying issues with the house that may not be obvious to the eye. So this can be things such as wiring or piping issues, or even ventilation. Non-obvious issues can also mean whether previous renovations to the house have been approved by relevant authorities and received a Certificate of Completion and Compliance (CCC). This is because the previous owner might have done renovations without getting approval, so this can potentially get you in trouble with your local authorities, or even be downright dangerous. There are also things your agent might forget to tell you if you do not ask. For example, how many owners have the house had? This might not give you an obvious answer, but if there were 4 owners in 3 years, you should probably find out why. Another one is if there are issues with the house title. Sometimes, transferring the title would require consent from the state, such as selling a low-cost house, or a Bumi lot. Title issues aside, one common question agents get if a house looks old and unoccupied is…“Is this house haunted?” If you’re asking that to an agent, it probably isn’t haunted, simply because...agents would not even touch the house. “If there is, I don’t think I will take on that listing. But if I have, I will definitely disclose it, and it’s up to the buyer to make the decision.” – L But sometimes the agent may not be aware if it has a history of ghost sightings. So in that case, you should ask if the house had a bad history, or if there were any crimes or murders there. Are there things to be wary about? Despite doing your due diligence and asking all the questions, there might still be issues that could pop up in the future. Some of these can be just genuine oversights that you might not think to ask. For example, the orientation of the house and the direction it’s facing. So you might have gotten the perfect house, but after staying there for the first night, you’re welcomed by the cheery morning sunshine through your bedroom window...and you’re not a morning person. But there are cases where the agent does cheat you. For example, misrepresenting the size of the house by telling you it’s larger than it actually is. Other reasons could be long-standing practices that seem like the norm but are actually illegal. For example, collecting booking fees. If that happens, you can actually file a complaint against them at the Malaysian Institute of Estate Agents (MIEA). The MIEA represents all of the registered property agents in Malaysia. In case you don’t know, all registered property agents will have a registration number, and you can confirm it by going to this website. Don’t feel bad about asking questions In case you’re worried you’re asking too many questions, or the wrong questions, don’t worry about it. There are no questions that are stupid, unimportant, or too much. In fact, they like it when you ask them a lot of questions, so ask away. Why? Because as an agent, this shows your interest in the property. If you weren’t interested, you wouldn’t be asking for more details, would you? But another reason is that asking them questions helps them to suss out what’s the best property for you. So in case you ever think there’s something you shouldn’t ask, don’t hold back and ask away. On the flip side, as typical Malaysians, we’d probably think there’s a “best” thing we could ask. Just like taking the product furthest back on the shelf, you might think there’s a “best” question hidden somewhere at the back. But the best question is actually...for the buyer. Why do you want to buy this house? Do you want to stay there? Do you want to rent it out? Are you planning to start a family? Are you just buying it to resell later? Once you know the answer, then it’s much easier to know what to ask. But if you were to ask these agents what their favourite question is, it would be: “How do I book this property?” Note: This article was first published on Mudah.my."
"Can the Mageran proposed by Tun Mahathir actually happen?  Now that Mahiaddin has resigned we will be seeing a new Prime Minister soon, but our new PM would potentially lead either a minority government or a unity government. But in addition to that, there’s still talk about setting up Mageran. If you’ve kept up with the news last June, you’ve probably heard about Mageran (Majlis Gerakan Negara) or the National Operations Council (NOC) being suggested by Tun Mahathir during an audience with the Agong. Those old enough might remember about the one set up during the Emergency back in 1969. Unlike the NOC back then, which was made to tackle the aftermath of the May 13 incident, the new one would be made to handle the Covid-19 crisis. Back then, the Agong replied to Tun Mahathir that to establish the NOC, the proposal would need to come from the current government. And this is simply because... The Agong’s power has limits There’s a reason the Agong said that it has to be suggested by the current government. The Agong cannot decide it by himself based on Tun Mahathir’s suggestion only. Why is that? First, we need to know that Malaysia is a constitutional monarchy. This means that the Agong’s authority is defined in our constitution. Under Article 40(1) of the Federal Constitution: In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; In short, the Agong will act based on the advice of the current government. So the decision will be made by our Parliament, who will pass their recommendation to the Agong. So if the NOC were to be set up, it has to be proposed by the current government. This would be different in an absolute monarchy, where the king is both the head of state and head of government. This means they have the authority to act on their own and are not restricted by any written law. Hence why when Tun M proposed it to the Agong, our Agong stated that the recommendation needs to come from the current government. This is simply because not doing so is unconstitutional—it will go against the Federal Constitution, the highest law in Malaysia. So in short: he will not just follow any suggestions, even from an elected MP such as Tun Mahathir. As mentioned, the advice must be “of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution”. Which in practical terms basically means the Prime Minister—which was Mahiaddin Yassin back then. But didn’t the Agong announce the Emergency? Yes, he did announce the Emergency, but this was done under the advice of the current government. This applies to both the previous Emergency in 1969, as well as the recent Emergency in 2021. Tunku Abdul Rahman himself has stated that: “I personally presented the said Ordinance to His Majesty… for his consideration and approval. Having considered the said Ordinance and after being satisfied … His Majesty approved the promulgation of the said Ordinance.” – Source quote from The Star It is the same as the current Emergency Ordinance: “I was granted an audience by His Majesty the Yang di-Pertuan Agong to present the advice by the Cabinet for His Majesty to issue a Proclamation of Emergency in accordance with Article 150 (1) of the Federal Constitution to declare a state of Emergency for the whole Federation” – Mahiaddin Yassin’s announcement of Emergency So no matter what, the decision to call an Emergency or to set up the NOC is still up to the incoming government. It is also stated under Article 150 in the Federal Constitution that there are no laws allowing the Agong to set up the NOC. The NOC happened only when the Emergency (Essential Powers) ordinance No. 2 of 1969 was enacted. It basically allowed governing power under Article 39 of the Federal Constitution to be handed to the director of the NOC. Will it happen? Despite it being made news, the NOC is unlikely to happen as even the previous government has spoken up against it. There are also concerns that it will have too much power, as it does not have to answer to the rakyat or parliament. As of now, we cannot be sure if it will happen. Legally, it’s definitely possible. But if it does, it will have to be our new Prime Minister’s call."
"Do companies in Malaysia need to give employees leave for their vaccinations? If you like to occasionally check the Covid-19 vaccination statistics in Malaysia, you would know that by now, around 3 million people have at least received their first shot. We’re seeing more and more people getting their vaccines now, compared to some weeks and months ago. If you’ve signed up for the vaccine and have an appointment not too long from now, you might be preparing to deal with the common after effects such as fever and fatigue. And if you happen to be someone who works, you most likely will want to rest and not think about work for the day. Or perhaps you ended up getting a vaccine centre that’s really far away, and you’d need the day off to travel there and back. In situations like these, do you need to ask your boss for a day (or two) off, or are they actually obliged to give you leave? The government is allowing employers to give leave This topic actually cropped up way back in April this year, and the government finally decided that employees can get vaccination leave. However, it would not be counted as a public holiday or an automatic holiday for obvious reasons. One, everyone would have different vaccination dates and so there can’t be a blanket holiday. Two, it would be difficult to predict exactly when a person might start showing some post-vaccine symptoms, so automatically giving them leave on a particular day might not work. Three, holidays actually cost the economy a lot of money—one day of paid leave in the private sector is said to cost RM904 million. This is why you can’t automatically be given a ‘public holiday’ the day you’re vaccinated. To work around these issues, the government has allowed employers to give employees leave, if and when they want to. They could decide to give you leave on the day of the vaccination, the following day, or both, or any other day you might need to rest. It’s totally at your boss’ discretion. But it still boils down to your company’s policy To put it simply, no, your company isn’t obliged to give you a day or two off, and it definitely isn’t mandatory. However, there are a few things to note: your company has the right to give you paid or unpaid leave, so they can deduct your salary if you’re going to be away for a day or so you can still get an MC, of course, which would be completely different from a normal leave. This would be more for those of you who have a fever, body ache or anyone who feels under the weather after the vaccine. So, you can head over to a clinic and get some medication and an official medical certificate your employer cannot stop you from going for your vaccine appointment. Even if it falls on an important day where you have a tonne of work, once you have a vaccine appointment, you have all the right to wrap up work for the day and go get your shot. Your boss cannot make you reschedule an appointment against your will, either. Such employers can be reported to the authorities—either to the Health Ministry, the Ministry of Human Resources, or the Malaysian National Security Council. Companies may also choose to take an easier approach to ensure not too many of their staff are absent at once. For example, they could opt for the Selangor government’s Selangkah Vax programme. Under this scheme, employers can purchase vaccines for their entire staff body. This would allow all the staff to be vaccinated at the same time, at the same venue (bigger companies can get their vaccinations in the office premises). There are also companies that have decided to offer a few days of paid leave to employees, so that more people would be encouraged to take the vaccine. [READ MORE: Can companies in Malaysia make it compulsory for employees to get vaccinated?] In short, there’s no cut and dry answer to this, but all you need to know is that your company CAN give you vaccination leave, but it’s not mandatory. However, it’s best for companies to come up with a specific policy for this so that employees aren’t confused, and to ensure that the policy doesn’t disrupt any employee from getting their vaccinations. If your company doesn’t have a clear cut policy on this up to now, just pop by the HR office to ask them what you need to do when the day of your vaccination arrives."
"Not all kids born to Malaysian parents can get Malaysian citizenship. Here's the reason Every now and then, you might come across a story of a child born to Malaysian parents who for some reason, cannot get Malaysian citizenship. Sometimes, these children are also born on Malaysian soil, but they aren’t legally recognized as Malaysians. [READ MORE: The Malaysian government was sued by a 6 year old in 2014. Here's what happened] They may be allowed to live here up until a certain time, yet they won’t be granted a Malaysian birth certificate or MyKad. But if they have at least one Malaysian parent, why can’t they call themselves Malaysians? To answer that, we first need to look at some basic citizenship laws. There are two main ways to get citizenship in Malaysia Malaysian citizenship is obtained through two ways: registration naturalisation Citizenship through registration basically means that the person is entitled to be a Malaysian (they fit all the criteria under the Federal Constitution) and all that’s left to do is for them to register at the National Registration Department, better known as JPN. So for most Malaysians, when they are born, their parents would register them and get their certificate. And when the child turns 12, they can apply for a MyKad. On the other hand, citizenship through naturalisation is given to foreigners who live here for a certain amount of years and fulfill the criteria set by the government. This is usually given to people who migrate here permanently or to foreign spouses and children of Malaysians. It’s pretty straightforward at the outset, but it can get complicated in specific cases. For example, a baby may be born here to two Malaysian parents or be born overseas to one Malaysian parent but JPN may not issue a birth certificate. Technically, the baby should be able to get citizenship through registration...but this may not be the case if the criteria, as we mentioned above, isn’t fulfilled. The parents need to be legally married in Malaysia The country’s citizenship laws can be found in the Federal Constitution. Article 14 onwards specially talks about citizenship through registration, but it tells us to refer to the First Schedule of the Constitution. We’re going to look at Part II of this Schedule because this part applies to children born after Malaysia Day, that is 16th September 1963. The section is long, so we’re only going to be focusing on two things that are relevant to this article: Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say: (a) every person born within the Federation of whose parents one at least is at time of the birth either a citizen or permanently resident in the Federation; and (b) every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State; and These lines essentially mean that a person is considered by law to be a citizen of Malaysia if: they’re born within the country to at least one Malaysian parent or one parent who is a Malaysian PR they’re born outside the country but to a Malaysian father (not Malaysian mother) But that’s not all. For a child to be considered a Malaysian, the other requirement is that the parents need to be legally married in Malaysia. This is not expressly stated in the Constitution, but JPN states that one of the documents needed to register a child is the parents’ Malaysian marriage certificate. So, even if the parents are legally married in another country, they will need to re-register under Malaysian law. There’s a group advocating for a change in the law There can be many other reasons as to why a child is denied citizenship, like what happened to this girl who couldn’t get citizenship because there were no medical records of her mother being pregnant with her. [READ MORE: A Malaysian girl was denied citizenship because she was born at home] But as we’ve seen, two of those reasons can be that the parents aren’t legally married in Malaysia, and that the child may have been born outside Malaysia to a non-Malaysian father. With regard to the second reason, a group of six Malaysian mothers are currently challenging this law in court so that their children can also become Malaysians. If they do win this case, it would mean that children born outside Malaysia to Malaysian mothers—and not just fathers—can get citizenship. The government had attempted to strike out the case stating that there was no major issue. However, the judge said that the case should be heard by the court since the mothers were only asking for equality in the law. Now, you might also wonder what happens if a child still fails to get citizenship through this law. In some cases, the parents might just apply for citizenship through naturalisation—which means that the child isn’t automatically entitled to it, but will need to fulfill certain criteria. Malaysian mothers who give birth abroad can also appeal for citizenship. However, it’s a tedious and tough process, which is why they’re fighting for a change in the law. For the rest who fail to get citizenship for many, many years, unfortunately, they continue to remain stateless. And while citizenship may be difficult to obtain for some, do know that in certain rare circumstances, it can also be taken away from those who already have it: [READ MORE: 4 ways Malaysians can permanently lose their citizenship]"
"Here's how to report your boss if you're forced to work in the office during the MCO Unless you were disconnected from the rest of the world for the last few days, you would already know that Malaysia is now under an FMCO (Full Movement Control Order). This FMCO is is expected to be for the next two weeks, for now. During this period, most business (except those that are essential) are expected to shut down. Those with the approval from the authorities will be allowed to work, just like during the previous MCOs. But one recurring issue that’s been cropping up is that of employers who misuse the approval to operate as usual. We found many complaints by employees that were posted on Twitter, like this one: So what can you actually do about employers like this? All letters previously issued by MITI are no longer valid Those who had approval to go in to the office would have had to obtain a letter issued by the Ministry of International Trade and Industry (MITI). These letters would allow them to pass through roadblocks without getting stopped. However, for this present MCO, the government has decided that all letters that were previously issued by MITI will no longer be valid. Initially, it was decided that employers will need to apply to the respective ministry for their field of work for permission instead of from MITI. However, the latest update on this is that MITI will still be the one issuing letters, but they will obtain approval from the relevant ministries to see if that particular business is essential or not. They’ve set up a system just for this, known as CIMS 3.0, and this is where employers can apply for work permission It was also said that the previous MIITI letters would only be valid up to 31sat May. But it was eventually decided that employees would be able to use them up to 3rd June 2021, so that employers will have more time to obtain fresh approval. Despite this, not all employees in an office are allowed to come in everyday. Only a certain percentage is allowed, and it differs from each industry—you can check the full list here. This means that if your employer got letters for all employees or even forced those without letters to come in, they would be committing an offence. In cases like these, you are allowed to file a complaint against them. You can complaint to MITI...and a few others Besides forcing employees to come in without approval letters or having the full workforce in the office, some other offences that are committed by employers include: not reporting Covid-19 positive cases in the office not following the set SOPs for business premises forcing employees who are unwell to come into the office ...and many more. The point is, these all fall under serious offences that employers can be penalized for during this pandemic. 1. Report to MITI As you all would know, MITI is the relevant industry for local and international trade. So if there are employers who are misusing the work permit, you can let them know. There are few channels through which you can reach out to them: their social medial accounts such as Facebook and Twitter their online complaint portal which can be found on their website 2. Report to the Human Resource Ministry This is the ministry that is involved in the general welfare of employees in Malaysia and they have the power to investigate any issues between employers and employees. If you are dealing with a boss who is endangering your life by forcing you to come into the office, you can reach out to the ministry. And even if you need to take any legal action against your boss later, you can go to the Industrial Court which is under the purview of the Human Resource Ministry. But for any complaints, you can reach out to them on: Facebook, Twitter or through their website (scroll to the bottom of this page for contact details) 3. Report to the police The first people you would think of going to if someone does something illegal would be the police. You would have read many articles on business owners who have been fined for not following Covid-19 SOPs. So if your boss is not budging and is still breaking the law, the police can help you. When you file a police report, your details would be on that report. However, you can be considered a whistleblower. A whistleblower is a person who reports any illegal practices followed by a company. The identity of this person would usually be kept a secret and they should be given protection. Under the Whistleblower Protection Act 2010, the identity of a whistleblower cannot be exposed, except in very rare circumstances. Take note that, it is considered whistleblowing only if you report the company to a government agency. Fortunately, the police are considered to be a government agency. So if you do tell on your boss, your identity should be kept a secret. [READ MORE: What type of protection do whistleblowers get in Malaysia?] Can you report your boss anonymously? Understandably, some employees may be afraid to report their bosses in fear of losing their jobs or having some other disciplinary action taken against them. Fortunately, there are ways that employees can make their grievances known without getting in trouble—but some of these aren’t official channels, so do exercise your discretion before giving our information. For example, there are Twitter accounts with a big amount of followers that have offered to compile complaints by employees and pass them on to MITI. One of them even made a Google Forms just for this. Instead of filling the forms on MITI or the Human Resource Ministry’s pages which may require your personal details, you can call them up and let them know that you’d like to keep your identity a secret. There’s no guarantee that they can do so, but there’s no harm in trying—especially if you’re exposing a boss who’s breaking the law."
"Here's how you can legally change your name in Malaysia Most of us might not have a problem with our names and changing it might be the last thing on our minds. But in some scenarios, a change in name is almost necessary. Some might have had their names badly misspelt (this was quite common in the 1950s and 1960s), some might have been named after something unpleasant, or they might have converted to a different religion which would require a change in name. Or there can be cases of women who just want to legally take their husband’s surnames. So if you fall into any one of these categories, this article is for you. But even if you don’t, it’s good knowledge to have just in case you do need to change your name someday. You’ll need the right documentation The first thing to do is head over to your nearest JPN branch, which means you cannot change your name while in another country. When you go to JPN, you’ll need to have a set of documents with you. But the type of documentation needed can vary depending on the reason for application, so read on. Parents who want to change their children’s names You can only change the name of a child within a year of their birth. For this, you’ll need: MyKad of both the parents (original and copy) parents’ wedding certificate child’s birth certificate child’s MyKid (if there is one) Take all of this to the Jabatan Pendaftaran Surat Lahir in the JPN office (there’ll be a counter just for this). You might need to give a reason for why you’re changing your child’s name if the pegawai there asks for it. They will also give you a borang JPN.LM21 to complete by yourself. Once you’ve done that, you’ll need to go to a Commissioner of Oaths with a copy of borang JPN.LM22 and JPN LM07 (you can get these at the JPN branch, not to worry. The full list of forms can be found here). Once the Commissioner of Oaths stamps on those forms, you can take everything back and submit all of them to the JPN branch. They will then issue a birth certificate with your child’s new name, You’ll need to pay RM5 to get the birth certificate and another RM5 for the processing fee. You might also wonder what happens if the child doesn’t have their birth parents around. This change of name can still be done by a legal guardian—they’ll just need to bring the original copy and a photostat copy of the legal guardianship letter issued by Jabatan Kebajikan Malaysia. Changing simply because you want to Technically, you are allowed to change your name because you feel like it, but you might need to have a more convincing reason if you’re asked for one. The process here is slightly longer than changing a child’s name. Firstly, you’ll need to sign a statutory declaration. This is essentially a legal document stating that whatever is in the document is true. You’ll need to sign it in the presence of a Commissioner of Oaths and have them stamp it. If the person is under 18, a parent or legal guardian will need to do this for them. At the JPN office, you’ll need to fill up the borang JPN.KP16, which is the borang for any changes made to a person’s MyKad. You’ll need to bring your original MyKad and a copy of it for verification purposes. There may be some other borangs or documentation needed, depending on why you’re changing your name. For example, those who want to take their foreign husband’s name need to bring their marriage certificate along. It’s a long list, but you can find it here and see what fits your particular reason. Changing for religious reasons For this type of name change, the process is the same as the above—you’ll only need to have your MyKad, the borang JPN.KP16 and only one or two more supplementary forms/documents that may apply to you. The other thing you’ll need for changing your name for religious reasons is proof of your conversion. For Muslims, you’ll need a card that proves your new faith from the Islamic Religious Department or State Islamic Religious Council (this will be needed even if you just want to update your religion in your MyKad but still keep your birth name). For other faiths, a proof of baptism or other documentation that proves conversion can be brought. Some names are banned in Malaysia While for the most part, you can change your name to something you like, some names are just a no-no. We’ve written an article on this before: [READ MORE: Here's JPN's guidelines to prevent people from giving weird names for their children] The type of names that are banned are within the article, but in summary, you cannot change your name to (or name your child after) that of colours, fruits, numbers or ones that have inappropriate meanings. For those who want to use names that begin with Syed, Wan or other names for special lineages, you’ll need to prove that you do come from such a lineage. As for those who have a bin or binti in their names and just feel like removing it for whatever reason, the answer is that you can, but it’s not that easy: [READ MORE: Can you choose not to have bin or binti on your MyKad?]"
"Can companies in Malaysia make it compulsory for employees to get vaccinated? We’re now 14 months (or more) into this pandemic and Malaysia’s cases have been at an all-time high these last few days. One ray of hope in this time is that there are now more and more people getting vaccinated. Over 10 million people have signed up for the vaccine so far, but that still leaves nearly 23 million others who haven’t. There are some who are waiting for others to take the vaccine first and there are some who are totally against it. But if you don’t ever plan on getting it, can your boss make you get vaccinated? They CAN make it compulsory Given the fact that there have been many workplace clusters, it might make sense for companies to get all their employees vaccinated. But can companies actually go against an employee’s right to choose for themselves? We spoke to lawyer Fahri Azzat to get some input on this. “I think employers can make it mandatory. Since Covid is clearly a public health issue, it is entirely reasonable for an employer to request the employee be vaccinated.” -Fahri Azzat via an e-mail interview Fahri went on to say: “If an employee refuses to do so, they may be given a show cause/disciplined for doing so. If they cannot provide a good excuse for it then I think an employer should be legally entitled to dismiss them.” In essence, refusing to take the vaccine without a proper reason can lead to you getting in trouble, or losing your job altogether. This is especially the case because this is an infectious disease, and one person can end up passing it several others. We can’t really say exactly what your company can do, as the type of disciplinary action they can take will depend on the company’s policy on health matters. But the bottom line is that employers can ask everyone in the company to take the vaccine in order to protect the whole workforce—especially if their office is ‘high risk’ (no space for social distancing, not possible for staff to work from home, etc.). But if you do have a very valid reason for not being able to take the vaccine? Fahri explained this, too: “What employers must be careful about is to simply take a blanket approach to it. The employees must be heard out as to why they refuse to take it. If there is a valid medical condition, or some other reason to justify it, then the employer cannot simply terminate them. So it is important to evaluate them on a case by case basis. “ Basically, employers can’t go around forcing every single person to get vaccinated. If there’s proof that the employee simply cannot take the vaccine, they need to allow the employee to explain themselves. So, a company cannot just say “anyone who doesn’t take the vaccine will automatically get fired”. They’ll need to make room for the select few who might have a medical condition or some other valid excuse. The govt might make the Covid-19 vaccine mandatory for everyone Even if employers decide not to make vaccinations mandatory, do note that eventually, they might be made compulsory for everyone in Malaysia. Recently, MOSTI Minister Khairy Jamaluddin mentioned that for herd immunity to be achieved, at least 80% of the population will need to be vaccinated. And if this number of registrations is not achieved by September 2021, the government just might make this vaccine compulsory at that point. Like we said, only 10 million have signed up at the time of writing, so we’re still quite a long way off. There’s no clear cut law on this, although there might be later. But under the Prevention and Control of Infectious Disease Act 1988, the Health Minister has the power to make rules to curb the spread of any infectious disease. Section 31 (2)(t) says that the Minster can: make regulations, in respect of the whole or any part of Malaysia...for the prevention or mitigation of infectious diseases. This can include passing a rule to make vaccinations mandatory, especially if, as we said, the number of vaccine registrations don’t increase by September. But again, the government cannot force those have certain conditions to take it, if they’re able to prove it. As for the rest who are able to get vaccinated, they might not be able to get away if this rule ever gets passed. [READ MORE: Malaysian parents can be sued for refusing to vaccinate their children. Here's why] Companies in Selangor can now buy vaccines for employees Just last week, the Selangor government announced that they would be allowing companies to buy vaccines for their employees. Again, this is due to the high number of cases in workplaces. Under the Selgate Covid-19 Vaccination Programme, companies can first register to buy the vaccines through the Selangkah app. Shortly after registration, the employer will receive a quote for the vaccine via e-mail. If the employer is agreeable to the rate, they can proceed with the payment. A 50% deposit will have to be made at this point, and the balance will have to be paid 14 days before the company’s vaccination date. For more information, you can check out their Selangkah Vax website here. Meanwhile, if you haven’t signed up for the vaccine and are unsure about its pros and cons, talk to your doctor. If you’re still worried, you can get a check up done to make sure you’re okay to take the vaccine. And if you’re someone who cannot take the vaccine due to health issues, do encourage those around you who are healthy enough to sign up. Even if you’re unable to take it, by achieving herd immunity, we will be able to protect those who are vulnerable and have medical conditions."
"Can property agents in Malaysia get involved if a tenant and landlord have a dispute? Imagine this: You’re a property agent who’s been successfully closing deals for the last few months. Today is just another day at work, but then you suddenly get a call from a client—actually, ex-client. You had managed to get them a new lease a few months ago, and everything seemed to be going well. They’re now they’re calling to tell you that the landlord is evicting them from the home, and they need you to settle the problem for them. But do you actually still need to help them, especially when you’ve already completed the job? There are no specific laws for tenancies in Malaysia If you didn’t already know, there actually aren’t any specific laws for tenancies in Malaysia. There have been talks of a tenancy Act that will cover the rights of landlords and tenants, but it’s yet to be passed. Until then, we’ll need to look at other laws, such as the Specific Relief Act 1950 and areas of the law that can be of help. One such area of law is contract law. If your client is a tenant, when they enter the lease, they would sign a tenancy agreement with the landlord. As they worked with you to get that lease, they would also sign a contract with you, the property agent. This would be especially the case if you belong to a real estate agency. So even if there are no tenancy laws, if your client does have a valid contract with you, they may be able to use contract law to get you to help them. You have a responsibility towards anyone you have a contract with until you have completed your end of the bargain. So, when your client has a contract with you, you have a contractual duty to help them out. But the question is, when exactly does your contract with them come to an end? Check your agreement with them There’s no standard format for a contract between a property agent and client, but it will cover the rights and responsibilities of both parties. As a property agent, generally, your role would be to: show your client accurate listings and give them a viewing of the actual house tell them the actual condition of the house and disclose all important facts related to the house help your client and the other party (landlord/tenant/seller/buyer) enter into a formal agreement help the parties with any other necessary paperwork successfully close the deal for them On your client’s end, their job is to pay you for all these services. Once all this is done, the deal is finalized. And once the deal is finalized, that would actually be the end of your duties towards each other. In rare cases, the contract may require you to offer help even after you’ve closed the deal—as a way to make the deal for appealing for the client. For example, you may be asked to help them for the first 3 months of their lease. But if your contract doesn’t mention anything like this, then you don’t need to help. If you do decide to help them beyond this, it’s would be outside the scope of your contract with them. The other thing to note is that the only parties to a tenancy contract are the landlord and the tenant(s)—it will not involve you, the property agent. So, if your client (the tenant) was not paying their rent, the landlord cannot expect you to solve the issue for him. Again, this is because the tenancy agreement is only between him and the tenant. If the tenant had breached the agreement by failing to pay the rent, the landlord can only take action against the tenant, and not anyone else. An exception to this would be if you knew that the tenant had a habit of defaulting on payments, but didn’t mention this to the landlord. In this case, the landlord can hold you responsible. But in more common circumstances, you wouldn’t need to get involved in a contract you’re not party to. What if the property agent is the reason for the problem? What we’ve discussed so far is the general rule: property agents don’t need to get involved in landlord-tenant disputes. But an exception to this is if a problem cropped up because of the property agent. For example, the landlord had mentioned to you that pets aren’t allowed in the house. This wasn’t in the tenancy agreement, but the landlord told you to communicate this to the tenant. However, you failed to mention this to the tenant. When the tenant moved in with their pets, the landlord was unhappy and told the tenant to evict the home. Because you, the property agent, failed to disclose what the landlord told you, you can be held responsible if the tenant is forced to move out of the house. You can also be a witness in a landlord-tenant dispute. As an example, the landlord did agree to having pets in the house, but later denied it. If you have proof of this, you can testify as a witness and help the tenant if they ever take the case to court. So all in all, there is nothing to stop property agents from helping when a dispute arises, but you don’t have to do so, because you have no such legal obligation towards them. In any event, while the deal is ongoing, advise your clients to keep proof of all transactions with you and their landlord/tenant and as it may help if a problem arises later. If you really want to help but can’t actually do much, you can tell your client/ex-client to seek help from a lawyer who will tell them their rights based on the tenancy agreement. In very serious cases, they can also ask the police to get involved. This article was first published on Mudah.my."
"In Malaysia, if a family member dies leaving you their debt, what can you do? Note: The article below applies to non-Muslim succession matters. Muslim succession matters will be governed by Syariah laws. When a person passes away, they may leave behind wealth such as money and property for their family members. At the same time, they also might have amassed a huge amount of debt during their lifetime. This could have been through credit cards, other bank loans, or even through a loan shark. Regardless of how they got that debt, they would be leaving their family behind with money owing to others. So if you end up ‘inheriting’ a family member’s debt one day, what can you do about it? Spoiler: The debt will not be wiped out Not automatically, at least. We’ll explain this in detail below but first, let’s look at what happens to a person’s estate (assets that they leave behind) after they die. A person can die with or without a will (intestate), If there’s a will, it would already state who will be in charge of the deceased’s matters. If there’s no will, the court will appoint someone to handle the affairs and issue what’s known as a Letter of Administration. It’s like a will and it lists all the assets of the deceased, just that the court will decide who manages all of it since the deceased didn’t have a will of his own. [READ MORE: Can the Malaysian government take your property if you die without a will?] Regardless of whether the person died with or without a will, there would eventually be a person in charge of handling his matters, known as an executor. An executor’s job is to distribute the deceased’s wealth to their next of kin, but they would also need to handle the debts. So if you were appointed as an executor for a family member’s estate, part of your job will be clearing the debts. But as an executor, you wouldn’t be personally ‘inheriting’ the debt yourself. Meaning, the debt won’t be transferred to your name, nor will you have to pay out of your own pocket. Instead, you’ll have to use whatever money the deceased had left and pay the debt off. If there’s no money left, you’ll need to sell whatever assets are left and use that money to settle the debt. This means that if the deceased had left a house for his daughter, for example, there’s no guarantee that she will actually get that house. If the executor needs to sell that house so pay off the debt first, he must do that. The remainder of that money, if there’s any left, can be given to the daughter. But what if there aren’t any assets left at all? The creditor can waive the debt If there aren’t any assets left, technically, the creditors cannot ask anything else from the next of kin. By right, the debt should be written off at this point. They might ask the next of kin to fork out money to pay up, but they can’t actually demand for this and there are only certain circumstances where a person can be forced to pay someone else’s debt: if they co-signed the deceased’s loan if they were a guarantor for the loan But if the family is still being asked to pay, they can appeal to the creditors to reduce or even waive the debt. There’s no law that prevents a creditors from doing this, so they can exercise their own discretion, especially if the family is financially struggling or they had no idea that the deceased had such debts. If the deceased had signed a contract when taking the loan, there might be a clause which could clear the debt in some circumstances. That clause, if applicable, may help family members who are stuck with a huge amount of debt. Understandably, all of this might not apply to loan sharks or other illegal creditors. They might still demand payment regardless of what’s happened, and it would be difficult to get out if they start chasing you. But what if you try to prove that you had nothing to do with the deceased? Can you ‘disown’ family members to avoid paying their debt? Let’s say that you have been cut off from a family member for years, but you’re their only next of kin when they pass away. Suddenly, you’re getting calls from loan sharks and other creditors who are demanding payment. We previously wrote an article on whether you can just sever ties with a family member. [READ MORE: How to legally disown a family member in Malaysia...with just 2 steps] In summary, there’s no straightforward way of doing this, but you can file a police report and publicly announce (in newspapers, etc.), that you are disowning that family member. However, for this to happen, the family member has to agree to it, and for that, they have to be alive, of course. Therefore, unfortunately, you cannot cut off ties with a family member after they’ve passed on. So if you’ve been hit with the debt of a long-lost family member, you should contact the executor (if it was someone else) and let them know to settle the debt. However, if the deceased had taken loans through other means and those parties keep threatening and harassing you, you’ll need to contact the police for assistance."
"How do you transfer car ownership to another person in Malaysia? We recently wrote on how to transfer ownership of property in Malaysia. [READ MORE: How do you legally transfer property to someone else in Malaysia?] But one of our readers also asked us the process of transferring ownership of vehicles, and so we decided to write this article. Fortunately, it’s pretty easy and it’s only a two-step process. Most of you who have bought/sold a secondhand car or inherited one might already know this process. So first timers, this article is for you. You’ll need to pay off your loan first When you sell your car, the easiest way to go about it would be to settle the outstanding loan first and then sell it for whatever price you want. This doesn’t mean you can’t sell a car that hasn’t been paid off, but it’s much simpler to do it this way. You might think of asking the buyer to continue paying your loans, which is known as a ‘sambung bayar’ deal. But this is actually illegal, per Section 38 of the Hire-Purchase Act 1967. For one, the buyer would buy the car from you by paying the monthly loan directly to you, but the car would still legally be in your name. So understandably, this would be very risky for both parties. We have an article on other reasons why you shouldn’t be part of a ‘sambung bayar’ deal. [READ MORE: 5 legal reasons you should never take part in a Sambung Bayar deal] If you still have a lot of the loan left that’s unpaid, yet you still want to sell the car, here’s what you need to know. Firstly, your bank might prevent you from selling the car for the first 5 years or so. To check the exact wording and duration of this clause, you need to refer to the hire purchase agreement that you signed with the bank. Secondly, what you CAN do is have the buyer take their own bank loan, and ask that bank to pay the loan directly to your bank. And if the buyer’s loan isn’t enough to cover your loan, you’ll need to top it up with cash on your own. Get your car inspected by Puspakom Once the loan has been fully paid off, the car is 100% yours and no longer the bank’s. You will then need to take it to Puspakom—the body that inspects commercial vehicles in the country. You can go to any of their branches, and you’ll need to bring the following documents with you: your IC the original car grant or the Vehicle Ownership Certificate However, you cannot just show up at Puspakom whenever you wish to. You’ll need to make an appointment to get an inspection slot, and you can do this only on their website. When you’re there, you’ll need to fill in one of these borangs: B5- for cars that have been fully paid off and where the buyer is buying the car in cash B7- for cars that are being bought with a bank loan. In this case, BOTH borang B5 & B7 are needed B2- ‘special inspections’ for cars that have an expired road tax for over a year. It’s best for you go with a valid road tax, but if there are special circumstances such as a deceased owner or an owner who is overseas, this borang B2 will also need to be filled. An officer there will issue a report after examining the car. Each form (if you filled in more than one) will have its own report. Only when you have a report, can you initiate the name transfer process at JPJ. Fill in the Borang JPJ K3 at a JPJ office When you go to your nearest JPJ branch, take your borang(s) from Puspakom and your IC with you. You’ll need to fill their borang K3 once you’re there, which is the form for change in ownership of a vehicle. A fun fact about this process is that both the transferor (seller) and transferee (buyer) of the car do not need to be there at the same time. The seller can go first and do his part and then the buyer can go later. This is convenient for cases where the buyer of the car isn’t available at the time or if he’s overseas. Once the seller has submitted the form, JPJ will take his thumbprint and issue a form or slip to him. This slip will contain the details of the seller and the buyer. The seller will need to pass this slip to the buyer. The buyer will then take this form to JPJ and submit it there, together with the Puspakom form and original car grant. Once they have scanned his thumbprint as well, the car’s road tax and insurance will immediately get cancelled. For this reason, the new buyer is advised to get a new insurance for the car under his name, as the previous insurance would belong to the previous owner. Once the new buyer has a new insurance for the car, he can apply for a new road tax under his name as well. After all this is done, JPJ will issue a new Vehicle Ownership Certificate to the new owner and voila, the process is complete. What if the owner of the car has passed away? Let’s say that you’re not the one transferring a car ownership to someone else, but you’re about to inherit or buy one from a deceased person. For this, the first thing to look at is whether the person died with or without a will. It’s simper if there is a will of course, as your name might already be listed there if the deceased person had wanted the car to be given to you. If this is the case, the person who handles the will (know as an executor or executrix) will need to apply for a Grant of Probate from the court. This grant will allow for the transfer of any property from a deceased person to the one inheriting it. If the person died without a will (intestate), the court will appoint someone to handle the deceased person’s property. They will then issue what is known as a Letter of Administration which will allow property to be distributed to the deceased’s next of kin. So if you’re not the deceased’s next of kin, the chances of you getting the car this way is slim. What can be done is that the car should be transferred to a family member first, and then you can buy it from that family member. Now, with either the Grant of Probate or Letter of Administration from the court, you’ll need to repeat the same steps above. First get the car inspected by Puspakom, and then head to JPJ. At JPJ, you’ll need to have the following things: JPJ K3A form – this is different from the K3 form, which is for voluntary transfers the IC of the person in charge of handling the deceased’s matters the deceased’s original death certificate the original car grant or Vehicle Ownership Certificate the Grant of Probate or Letter of Administration and the court order that comes with these documents If you have any specific queries regarding any part of the process, you can contact JPJ via the Malaysia Government Call Centre (MyGCC) at 03 8000 8000."
"How do you legally transfer property to someone else in Malaysia? We all know that if you inherit a home from someone else or even buy a home for the first time, you would need to legally transfer the property to your name. It’s actually a pretty straightforward process and there isn’t much documentation involved. However, there can be a slight confusion because there’s a difference in property that is transferred between family, property bought from someone outside the family and property left by a deceased person. It can get a bit technical, but bear with us and just keep these two words in mind: Memorandum of Transfer (MoT) and stamp duty. You’ll need the Borang 14A The Memorandum of Transfer that we just mentioned is a form used to transfer ownership of property from one person to another. In Malaysia, it’s known as Borang 14A, and it looks like this: The Selangor government also has a guide on how to fill this form up on their website. Buying a house from a developer For those of you who own strata properties (apartments, condos and high-rise properties), you would know that when you first buy your home, the strata title (property title) will be with the developer. At that point, the home will still technically belong to the developer and not to you, the homebuyer. The developer is supposed to help set up the first management body for the residence. After a number of years, that management body—known as the Joint Management Body (JMB)—will need to be dissolved and a Management Committee (MC) will be formed. For this to happen, the developer would have to transfer the strata titles to the homebuyers first. When the strata titles are ready to be passed, the developer’s lawyer will contact the homebuyers to fill in the necessary paperwork—the Memorandum of Transfer and the stamp duty (more on this later). You can also get your own lawyer if you don’t want to work with the developer’s lawyer. Transferring title from someone else This would apply to you if: (i) you were buying a secondhand home from someone (known as a sub-sale) or (ii) someone within your family was transferring property to you (a parent, spouse, child etc.) (ii) you were simply getting a house from someone else (you’re not buying it or getting it from a family member). Similar to if you were buying a home from a developer, you will need to get a copy of the borang 14A. For this, you’ll need to make your way to the nearest Pejabat Tanah dan Galian—the land office—to get the form. When the form is signed, it has to be signed before a lawyer who will be the witness. For Malay reserve lands, it has to be signed before the Pentadbir Tanah for Malay reserve lands in your area. After this, you’ll need to bring the house grant, your MyKad as well as the MyKad of the person giving you the land to the land office and submit all of this together. Usually, both parties (the person giving the land and the one receiving it) need to be present. But in some cases where the owner of the land is old, unwell, or overseas, you’ll need to bring additional proof as to why they can’t be there. You might need to pay a stamp duty Once the first step of signing the legal documentation is done, the next step is to pay a stamp duty. Think of it as a tax on the land. However, in some cases this stamp duty will be slashed or fully exempted. If you’re buying a home from a developer or a secondhand property from someone you don’t have any familial ties with, you’ll need to pay 100% of the stamp duty. But for some family members, there’s actually a concept called ‘love and affection’ under property/tax law. Under the Stamp Duty (Exemption) (No. 10) Order 2007, these are the exemptions that will be given: Transfer from spouse to spouse: 100% exemption Transfer from parent to child: 50% exemption Transfer from child to parent: 50% exemption So, if you’re getting a house from a sibling, cousin, grandparent or any other family member not mentioned above, the full stamp duty applies to you. Take note that the 50% exemption for children only applies to legitimate children. If a child was born out of wedlock or does not have the parents’ names on his birth certificate, he would not fall under this definition. In case you weren’t aware, the government has removed the stamp duty on MoTs for anyone who buys their first home worth up to RM500,000. This will be in effect until 31st December 2025. Otherwise, the full rate will apply. Also do note that the exemptions listed above only apply to transfers made when both the parties are alive. It’s a slightly different case if the person who owns the property has passed on, and this takes us to the next point. What if you’re already under someone’s will? Most people might think that if they’re under someone will, they will automatically get whatever is listed in it. But a lesser known fact is that wills can be contested. Meaning, someone else can come and dispute what’s in the will and ask for a share of it instead. Usually, those who would contest a will would be the deceased’s next of kin or someone who was their dependent. Besides that, if the deceased had outstanding debts, the properties listed in the will will first be sold so that the debts can be paid off. What this means is that only if the property is still available after the debts are paid, can the person listed under the will receive it. To transfer the legal title of a property through a will, you’ll need to go to the land office with the will. Take the death certificate of the deceased as proof. Once they’ve confirmed that you are listed in the will and are entitled to the property, the same process as above will begin: sign the Memorandum of Transfer (borang 14A) and pay the stamp duty if it applies. It can get even more complicated if a person dies without a will. The family and dependents may still get the property, but it will be a longer process. [READ MORE: Can the Malaysian government take your property if you die without a will?]"
"If you're unlawfully detained in Msia, you can file a habeas corpus. But how does it work? If you’ve been following the news closely, you would have read the story of a man named Simon Momoh. Simon, a Nigerian man living in Malaysia, was charged for drunk driving. He was then sentenced to a fine of RM12,000 and had to be in jail for one day. After paying the fine and serving the jail sentence, instead of being freed, he was taken to an immigration detention center. His family here was told that he would be deported, but his wife quickly filed a writ of habeas corpus. The court allowed the application and Simon was released because of this. But many people might not even understand what a habeas corpus is and how it works. What’s a habeas corpus in the first place? ‘Habeas corpus’ literally means ‘show the body’, or ‘bring the body’. The main principle behind it is that if a person has been detained for too long and hasn’t be able to meet with their family or next of kin, a judge can order for them to be produced in court to see if the detention is legal in the first place. Habeas corpus is actually a right given to you under the Federal Constitution. Article 5 (2) of the Constitution says: (2) Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him. The lines above basically mean that if a person is thought to be ‘unlawfully detained’, the court will ask for the person to be shown and order for the person to be released. As for what constitutes an ‘unlawful detention’, there’s no fixed meaning, but generally, it’s a detention that is done without proper reason and without following procedure. How does one file a habeas corpus? The process of filing a writ of habeas corpus can be found in Sections 365-374 of the Criminal Procedure Code (CPC). The sections are lengthy and pretty detailed, so we’ll break them down for you. Generally speaking, it’s the person who’s been detained who should file a writ of habeas corpus. But understandably, this isn’t possible if they haven’t been able to make contact with anyone. If this is the case, the detainee’s family can file it for them (just like how Simon Momoh’s wife filed one on his behalf). Or, you can get a lawyer to do it for you. The CPC says that a writ of habeas corpus must be submitted with an affidavit, which is a written statement that is treated as an oath, claiming that whatever is written is true. The affidavit needs to be signed by the detainee himself, but like we said earlier, if it’s not possible for him to do so, someone else can do it on his behalf. The court will then look at all the facts and evidence of the case, such as the arrest warrant, how the person was arrested, how long he’s been detained for, and so on. If any of these were done illegally or without following proper procedure, the court can quash the detention and allow the person to be freed. In Simon Momoh’s case, the court found that his detention was illegal because he was detained for 39 days, and there was no remand application to keep him for more than 14 days. The court can reject an application for it While a writ of habeas corpus is a constitutional right, there are some instances where it can be denied. For example: it’s in the best interest of the public and for public safety that the person be detained the person is already serving a prison sentence. Meaning, a court had previously found him guilty and sentenced him, so the detention cannot be said to be unlawful the person has been remanded for over 24 hours, but a magistrate court approved it and all the procedures were properly followed. Again, this would mean that the detention isn’t unlawful. the person is suspected to have committed a crime and is detained for under 24 hours. But there has to be sufficient proof that this person was a suspect. Or else, this can be challenged in court later challenging the wrong detention order. This one may be bit confusing, but we’ll tell you a case to help you understand it better. Late last year, a Malaysian businessman who had been detained filed a habeas corpus. He was first detained for 21 days, and then for an additional 38 days. When he filed the habeas corpus, he filed it for the 21-day detention instead of the 38-day one. The court rejected his application for a habeas corpus. The list above isn’t exhaustive, meaning there can be other reasons as to why the High Court can deny a writ of habeas corpus. It really would depend on the circumstances of the case. The court would also need to be satisfied that the person is being detained without proper reason. The court’s decision can be appealed So if you find yourself in this sticky situation someday, or you need to help someone else who is, make sure to include as much proof and details as possible in the application for a habeas corpus. But if the court still rejects it, all hope is not lost. Under Section 374 of the CPC, anyone who isn’t happy with the court’s decision—be it the detainee or the people detaining them—can appeal that decision within 30 days: Any person aggrieved by any decision or direction of the High Court under this Chapter may appeal to the Federal Court within thirty days from the date of the decision or direction appealed against. In Vishnu a/l Telagan v Timbalan Menteri Dalam Negeri, Malaysia & Ors, the High Court denied the applicant’s habeas corpus petition. He then appealed this decision to the Federal Court. The Federal Court found that the detention was unlawful because his recorded statement was defective. His signature on the statement was different from that on the habeas corpus petition and some other documents. This seemed as if it was not him who had signed the statement, when the law requires only the maker of the statement to sign it. Setting aside the High Court’s decision, the Federal Court ordered the applicant to be released. Besides a writ of habeas corpus, here are some other rights you have if you ever get arrested in Malaysia: [READ MORE: What are your rights if you get arrested by the PDRM?] [READ MORE: If PDRM arrests you, do you have the right to remain silent?]"
"In Malaysia, if your neighbour's renovation encroaches on your compound, what can you do? If you own a landed property, you would know that it can be common to have issues with neighbours every now and then. They might park their car in front of your house, steal fruits from your trees, leave rubbish near your house, and so on. But one issue we often hear about is when a neighbour encroaches on the boundary of the house beside theirs. This usually happens when the neighbour decides to renovate the house and some of it ends up taking up the next person’s land. A lot of the time, people aren’t actually aware that a neighbour’s renovation has makan into their space until they figure out the land’s boundaries. So if you’re dealing with a neighbour who’s intruding your space like this, there are a few things you can do. But before that... Know your land’s boundaries Before you decide to take any action against your neighbour, ensure that they are actually building on your land. Sometimes, it may seem like they’ve built on your land, but in reality, they have not. Your neighbour needs to get prior permission before starting their home renovations, and for this, they would have submitted a plan of the renovation it to your Majlis Perbandaran. The Majlis would have approved the renovations only if the plan showed that it would not affect surrounding properties. But sometimes, a home owner can go against the plan that was submitted, or even do a renovation illegally. But assuming that everything is being done legally, you can ask your neighbour to show you the plan to ensure that your land will be untouched. And if you’re not sure what your own land’s boundaries are, you can go to the Pejabat Tanah in your area to ask for the land grant (if you don’t already have a copy) which would show where exactly your land ends and starts. Report to your Majlis if they’re not stopping If you find out that your neighbour has indeed stepped into your boundary, you can take action against them. The first thing you can do is let your Majlis Perbandaran know. And if Majlis confirms that your neighbour is not following the given plan or is renovating illegally, they can order them to stop the renovations. In some cases, they can be issued a fine, and if your neighbour still isn’t budging, the Majlis can tear down and undo whatever renovation was done. Each Majlis Perbandaran would also have guidelines for specific types of renovations. For example, your Majlis Perbandaran might require that the distance between your neighbour’s wall and your house be 5 feet apart. Or they might even totally ban some types of renovations altogether. If you find that your neighbour has been breaching these rules, you have all the right to report your neighbour. [READ MORE: Certain home renovations in Malaysia may not require permits. Here's why] It’s impossible to know every single guideline your Majlis has set for home renovations. If you’re not sure, just check with them and lodge a report so that they can investigate. Make sure to take pictures of your neighbours renovation as proof. You can also sue them for nuisance & trespass Let’s say that your neighbour is refusing to stop the renovations despite warnings. Or, let’s assume that your neighbour’s renovations have truly ruined your peace of mind. In cases like these, you may be able to sue them for two things. We’ll explain both in detail below. 1. Nuisance This is a remedy under tort law (torts are civil wrongs). Under nuisance, there’s public nuisance and private nuisance. If you want to sue your neighbour for an illegal renovation, you’ll need to go with private nuisance. In order to sue someone for private nuisance, they must have interfered with the enjoyment of your own land. In simpler terms, they must have made it difficult for you to live peacefully in your own home. Reading this, you might think that no one would actually sue their neighbour for something like this. But some time ago, there was a case of a family who sued their neighbours for installing many CCTVs facing their homes— and they won the case. The facts of this case are different from someone building on your land, but the crux of the issue is the same: an annoying neighbour who’s disrupting your daily life. [READ MORE: A Malaysian family got sued because their CCTV was pointed at the neighbour's house] 2. Trespass Trespass is a concept under land law. Trespass basically means the act of someone illegally entering your land, without your permission. You might have seen this sign around before: So when you think of ‘trespass’, you might think it only applies to a thief or someone who just wants to jump over someone else’s fence for fun. But actually, the term can cover anyone or anything that enters a land without the owner’s permission. Renovations that are done on your land can also be counted as an act of trespass. In fact, there have been several instances of developers and builders being sued for trespass when they end up building on someone else’s land. Besides suing for trespass under civil law, trespass can also be a crime if the person damaged your property with the intention of causing damage. If this is the case, you can directly file a police report. To sum up, if you find out that your neighbour is building on your land, first confirm that they are overstepping the boundary. If you’re not sure what the boundary is, check with your local land office. Then, file a complaint with your Majlis who will have the renovation undone if it’s found to be illegal. Besides this, you can also sue them if the renovations have ruined your use of your own home. As this is a general guide, note that there may be additional avenues available to you besides the ones mentioned above. To know what works best for your particular case, do get in touch with a lawyer."
"In Msia, if you resign voluntarily but get poorly compensated, can you sue your company? Note: While this article mentions ‘MSS’ (mutual separation scheme), the laws mentioned here also cover ‘VSS’ (voluntary separation scheme). The two function the same way—they are compensation for an employee who has been asked to leave. The only difference between the two is that in a VSS, the company gives the option to the employee to leave and typically, it would be open a group of employees. In an MSS, it would be more specific to selected employees, and both the employee and employer will agree to end their contract. Some time back, one of our readers asked us: “Hi, do you have any write ups on what to do if you are unfairly compensated with a MSS?” For those of you who don’t know, MSS stands for mutual separation scheme. A mutual separation is when both you and your employer agree to terminate your contract, and they give you compensation for it. In other words, you voluntarily resign (instead of getting fired) and you get a one-off payment as a settlement. In some cases, the employee is happy with the amount they received and have no issues with it. But in other cases, the employee might not have realized that the amount was really little, or they were forced to accept that payment with no other options. In situations like these, can you still take action against your employer after receiving the payment? You can’t be forced to accept the payment An MSS (or VSS) needs to be signed without the employer forcing the employee to do so. The definition of ‘force’ is quite broad, and it doesn’t only mean being literally threatened to do something, as we will see. In the case of Thanasegaran C Munusamy v. Vale Malaysia Minerals Sdn Bhd, the court held that the mutual separation agreement was signed by the employee due to pressure. These are the brief facts of the case: the employee joined the company in 2017. After a few months, he even received an increment in his pay. But at the start of 2019, he was called to a meeting with the HR the HR said that his performance was poor and they gave him two options: i) sign a mutual separation agreement and take the payment that was offered ii) get suspended for 14 days while a domestic inquiry was made on his performance. If they found out that his performance was indeed poor, they would dismiss him they gave him 24 hours to decide. The next day, the company said they would increase the compensation they were offering him. he tried negotiating some of the terms in the mutual separation agreement, but was told they it was non-negotiable he felt pressured, especially when he was reminded that his other option was a possible dismissal, which meant that he would get zero compensation he signed the agreement. He realized later that he had been confused throughout the process and was forced to sign the agreement. He then sued the employer for unfair dismissal When the case went to court, there was sufficient proof that the employee was coerced into signing the agreement. He was not given enough time to decide on the best option for himself. The HR staff who made him sign the agreement were said to have acted in a way which showed that they forced him to sign it. Thy also said that instead of terminating him, they should have put him on a performance improvement programme first to solve whatever issues they claimed he had. Based on these reasons, the court said that there was no mutual separation, but it was an unfair dismissal. The company was made to pay him extra compensation, in addition to what was already given. The reason behind the payment also matters In another case, Murali Tharan Nair a/l G Narayana Nair v HLMG Management Co Sdn Bhd, the employee’s MSS was as an unfair dismissal because the reason the employee was asked to leave was not mentioned in the agreement. the employee was told that the company was going through a restructuring programme and that his role was redundant (no longer required) they offered him a MSS, but in the agreement there was no mention that he was being asked to resign because his role was redundant the employee told them to include this part in the agreement, but the company refused. He then signed the agreement, but added a note there saying: “Accepted due to restructuring and redundancy”. the company didn’t accept this and gave him a new copy of the agreement. They told him not to add any extra conditions to the agreement. He signed the second agreement without making any more changes the employee later filed for unfair dismissal as he felt he was made to sign terms that he didn’t actually agree to When the court heard the case, the court said that the employee was unfairly dismissed because there was no ‘meeting of the minds’. In order for this to happen, both parties need to agree to all the terms in an agreement. Here, the employee wanted the agreement to mention that he was being let go due to redundancy, and his attempts to fix this were denied. In the employee’s mind, he was redundant, but the fact that the company didn't want to acknowledge this on paper meant that this was not their real intention for terminating him. Just like the previous case, the court also ordered that extra compensation be given to the employee for unfairly dismissing him. You might be able to claim for an unfair dismissal Based on the two cases above, the main takeaway is this. If you’ve been asked to accept a MSS/VSS by your boss, make sure that you: fully agree to all the terms are not forced to sign the agreement have other options besides it have sufficient time to make a decision are told the REAL reason why you’re being given the MSS/VSS If you’re someone who was given a package like this by your company, but you feel you were unfairly dismissed instead, you may have a case against them. You can file for unfair dismissal in the Industrial Court, but make sure to do so within 60 days of your resignation. You should also take as much proof with you as possible. This can be the mutual separation agreement itself, any prior agreements signed by you and the company, and promotions you were given, and so on. If you need a quick guide on how to take a case to the Industrial Court, read the article below. [READ MORE: Unfairly fired? Here's how you can take your boss to court in Malaysia] Also, if you weren’t already aware, there have been some recent changes that have been made to employment laws in Malaysia. These laws can affect how a case is heard in the Industrial Court. [READ MORE: 5 important changes to Malaysian employment laws that you need to know]"
"Pampasan buat penerima vaksin COVID-19 INI ADALAH PENDAPAT PERIBADI PIHAK PENGARANG. Pendapat, kepercayaan, dan sudut pandangan yang diutarakan oleh pengarang tidak semestinya mencerminkan pendapat ASKLEGAL dalam isu ini, dan juga tidak mencerminkan kandungan biasa yang diterbitkan oleh ASKLEGAL. Kami tidak menjamin ketepatan undang-undang di dalam artikel ini. oleh Mohd Zamre Bin Mohd Zahir | zamre@ukm.edu.my Suntikan vaksin COVID-19 merupakan suatu isu yang hangat diperkatakan. Hampir semua orang membincangkan isu berkaitan dengan vaksin, termasuklah mereka yang tidak sabar untuk diberi suntikan vaksin COVID-19 dan mereka yang masih ragu-ragu untuk mendapatkan suntikan tersebut. Pfizer Inc bersama dengan BioNTech SE, Moderna Inc., Sinovac, CanSinoBIO dan beberapa buah syarikat yang lain telah tampil ke hadapan dengan menyatakan bahawa vaksin COVID-19 yang ditemukan adalah selamat dan berkesan. Selain itu, vaksin COVID-19 jenis AstraZeneca turut dikatakan selamat digunakan. Mengambil maklum isu status keselamatan vaksin AstraZeneca di luar negara, COVID-19 Vaccine AstraZeneca Solution for Injection (MAL21036009ACZ) daripada pemegang pendaftaran AstraZeneca Sdn Bhd yang telah didaftarkan oleh Pihak Berkuasa Kawalan Dadah (PBKD) pada Mac 2021 dikatakan selamat digunakan di Malaysia. Oleh itu, dalam keadaan yang terdesak untuk mendatarkan keluk jangkitan wabak ini, Kerajaan Malaysia telah memperkenalkan Program Imunisasi COVID-19 Kebangsaan. Di sebalik usaha murni ini, timbul juga isu berkaitan risiko kesan sampingan vaksin COVID-19 yang mungkin boleh memberikan impak penting dari segi fizikal, mental dan juga kewangan penerima vaksin. Persoalannya, sejauh manakah kerajaan Malaysia bersedia untuk berdepan dengan tuntutan penerima vaksin kelak? Sistem pemberian pampasan Terlebih dahulu, kita perlu memahami maksud vaksin. Vaksin adalah sejenis ubat yang dicipta untuk melindungi daripada penyakit berjangkit dengan memperkenalkan sistem daya lawan jangkitan (dikenali juga sebagai sistem imuniti) terhadap virus atau bakteria dengan kaedah yang selamat. Vaksin merangsang sistem daya lawan jangkitan (sistem imuniti) sekiranya seseorang dijangkiti virus berbahaya. Sistem imuniti dapat mencegah jangkitan virus daripada merebak dengan cepat ke dalam badan. Lantaran itu, seseorang tidak mudah mendapat jangkitan virus COVID-19. Di Malaysia, pihak kerajaan telah menubuhkan satu jawatankuasa khas berkaitan dengan vaksin COVID-19 bagi menilai kesan sampingan yang mungkin timbul selepas program vaksinasi. Hal ini penting bagi menilai tindakan susulan yang boleh diambil sekiranya berlaku kesan sampingan yang teruk termasuk mengakibatkan kematian. Menurut Ketua Pengarah Kesihatan, Tan Sri Dr. Noor Hisham Abdullah, pihaknya tidak memanggil hal tersebut sebagai pampasan seperti yang dilakukan oleh beberapa negara termasuk Singapura, tetapi lebih kepada sagu hati ataupun bantuan. Pakar akan meneliti dahulu kes terbabit bagi melihat kesan sampingan sama ada kesan tersebut disebabkan oleh vaksin ataupun sekadar kebetulan. Sekiranya berlaku kesan sampingan yang serius seperti kematian, pihak kerajaan akan mendaftarkan kes tersebut dengan WHO dan syarikat pengeluar vaksin tersebut untuk direkodkan serta dinilai berdasarkan data yang ada. Perkara ini dilihat seakan-akan sama seperti seseorang yang menandatangani surat kebenaran pembedahan, tetapi ia tidak bermakna tindakan mahkamah tidak boleh dilaksanakan. Walaupun wujud keizinan pesakit, namun tindakan mahkamah masih boleh dibuat. Dalam konteks COVID-19 pula, walaupun kes tidak dibawa ke mahkamah, pampasan masih akan diberikan. Pengesahan penerimaan vaksin Di samping itu, pihak kerajaan turut bercadang untuk mengeluarkan pasport vaksin sebagai dokumen pengesahan bagi individu yang telah menerima suntikan vaksin COVID-19. Dua cadangan telah diutarakan: penerima suntikan vaksin dipaparkan di aplikasi MySejahtera dokumen secara fizikal dalam bentuk pasport yang boleh diterima oleh negara-negara lain Kementerian Kesihatan (KKM) dan Kementerian Sains, Teknologi dan Inovasi (MOSTI) sedang memperhalus cadangan tersebut. Sementara itu, Menteri MOSTI menyatakan bahawa skim perlindungan diwujudkan untuk memberikan pampasan kepada penerima vaksin COVID-19 yang menerima kesan sampingan yang serius. Skim tersebut bertujuan untuk memberikan pampasan ex-gratia terhadap kes kesan sampingan yang serius yang boleh dikaitkan dengan pemberian vaksin COVID-19. Persoalannya, sejauh manakah skim yang disyorkan mampu menghadapi isu tuntutan penerima vaksin yang terkesan kelak? Menurut Health Resources and Services Administration (HRSA), sebuah agensi bagi U.S. Department of Health and Human Services, sebilangan besar individu yang menerima vaksin tidak mempunyai masalah yang serius. Seperti ubat-ubatan yang lain, vaksin boleh menyebabkan kesan sampingan, tetapi kebanyakannya jarang dan sangat ringan kesannya. Beberapa masalah kesihatan yang timbul akibat program vaksinasi tidak disebabkan oleh vaksin itu sendiri. Dalam kes yang sangat jarang berlaku, vaksin boleh menyebabkan masalah yang serius, seperti reaksi alergi yang teruk. Dalam keadaan sedemikian, National Vaccine Injury Compensation Program (VICP) akan memberikan pampasan kewangan kepada individu yang mengemukakan petisyen dan didapati terkesan akibat vaksin yang dilindungi oleh VICP. Persediaan menghadapi tuntutan vaksin Jika dilihat situasi yang berlaku di negara jiran, Presiden Joko Widodo menandatangani Peraturan Presiden (Perpres) Nomor 14/2021 sebagai pindaan kepada Nomor 99/2020 berhubung dengan Pengadaan Vaksin dan Pelaksanaan Vaksinasi COVID-19. Perpres yang ditandatangani mengandungi beberapa perubahan, seperti pemberian pampasan kepada mana-mana individu yang mengalami alahan yang teruk, kecacatan atau kematian selepas menerima suntikan vaksin COVID-19. Perpres tersebut juga menyatakan bahawa Kerajaan Indonesia akan menetapkan ketentuan yang sewajarnya sekiranya terdapat individu yang memerlukan rawatan perubatan selepas menerima suntikan vaksin. Jika berlaku keadaan yang memerlukan rawatan perubatan selepas menerima suntikan vaksin, kerajaan akan menanggung pembiayaan mengikut kadar yang ditetapkan. Kesemua tanggungan itu adalah berdasarkan peraturan yang ditetapkan oleh Kementerian Kewangan Indonesia. Baru-baru ini, pihak kerajaan Malaysia telah meluluskan Bantuan Khas Kewangan Kesan Mudarat Vaksin COVID-19. Antaranya: RM50,000 jika kesan sampingan yang serius kepada penerima vaksin yang memerlukan rawatan berpanjangan dihospital RM500,000 jika hilang upaya kekal atau kematian disebabkan vaksin COVID-19 Kerajaan bersetuju menyediakan dana permulaan sebanyak RM10 juta di bawah Kumpulan Wang Amanah Bantuan Bencana Negara (KWABBN) yang diuruskan oleh Agensi Pengurusan Bencana Negara (NADMA) bagi tujuan bayaran bantuan khas kewangan ini. Kerajaan akan menubuhkan 3 jawatankuasa di peringkat Kementerian bagi memantau dan menilai kesan mudarat susulan imunisasi dan isu keselamatan yang berkaitan dengan vaksin COVID-19. Bantuan khas kewangan ini dilihat sebagai langkah proaktif pihak kerajaan untuk menghadapi kemungkinan jika berlaku kesan sampingan (adverse effects) daripada penggunaan vaksin. Selain itu, ia juga dapat membantu menampung keperluan penerima vaksin dan keluarga yang berkemungkinan terjejas akibat kesan daripada pengambilan vaksin ini kelak. Sementara itu, ada pihak yang berpendapat tiada keperluan mendesak pada masa sekarang bagi usaha pemberian bantuan khas kewangan kesan vaksin COVID-19 itu. Manakala, ada pula pihak yang berpendapat usaha ini suatu inisiatif pihak kerajaan yang dilihat murni selain menyokong bantuan sebegini. Tanggungjawab bersama rakyat dan kerajaan Apabila berhadapan dengan kemelut COVID-19 dan vaksin sebagai penyelamat, terdapat isu lain yang perlu diselesaikan dengan baik dan berkesan. Sebelum ini, Dr. Fahirah Syaliza Mokhtar dari Universiti Malaysia Terengganu (UMT) dan rakan-rakan penyelidik turut membuat kajian berkaitan isu pampasan COVID-19. Isu berkaitan dengan pampasan bagi kesan sampingan COVID-19 wajar diberikan perhatian penuh dan penyelesaian terbaik adalah suatu yang menjadi kemestian. Kebanyakan negara mengambil penyelesaian bagi isu pampasan vaksin ini melalui pemberian bantuan khas kewangan, skim, sagu hati dan program tertentu. Persoalannya, adakah kaedah ini sudah cukup memadai sebagai penyelesaian yang terbaik? Rakyat perlulah memberikan bantuan dan kerjasama agar penyelesaian terbaik dapat dilaksanakan. Kerajaan pula haruslah mencari mekanisme penyelesaian yang jelas dan munasabah dalam konteks pemberian pampasan agar setiap pihak mendapat keadilan yang tuntas."
"If a Menteri signs a law without using his real name...is the law still valid? Update: The government’s Chief Secretary has ordered all civil servants to use the Prime Minister’s legal name in all formal documents from now on. This means that any orders passed by the Prime Minister or any documents signed by him will need to state either Mahiaddin Md Yasin or Tan Sri Dato Haji Mahiaddin Md Yasin as his name, instead of Muhyiddin Md Yassin. This has come into effect since a circular was released on June 3rd 2021, after the Attorney General’s Chambers advised that only the Prime Minister’s official name should be used. Just this past year, we’ve seen countless regulations, declarations and orders come into effect. For it to become legal and effective, the relevant Minister will sign off on it. So if it was an order to do with public health, it’s the Minister of Health who will sign it. Because these regulations, declarations and orders are considered to be law, understandably, they would need to be signed using the Minister’s full and legal name. But recently, the Shah Alam High Court quashed a declaration order signed by the Prime Minister last year...because it wasn’t signed using his actual name. A declaration by the PM was recently cancelled For those of you who don’t already know this, the Prime Minister’s actual name, per his MyKad, is Mahiaddin Md Yasin. But for as long as most of us can remember, he’s gone by Muhyddin Yassin. Now this slight difference in name spelling may not seem like a huge issue, but a Malaysian man’s life was changed just because of this. Last March, a man was detained under a preventive detention order that was signed by Muhyiddin. At that point, Muhyddin was the Home Minster and not the PM yet (this is not a key fact, but it’s just some additional info). The man in question was arrested on drug trafficking charges and under this detention order, he was going to be detained for two years. But just last week, the court removed this order and this man has walked free, all because Muhyiddin didn’t sign it with his legal name—making the whole order invalid. This is the first time something like this has happened, but it does raise the question: Does everything else that was signed as Muhyiddin and not Mahiaddin become automatically invalid? Previous declarations/orders are valid...until the court says otherwise Short answer: No. Based on this case, on the surface it seems as if other orders like this could also be cancelled out. But...it’s not so straightforward. According to lawyer Fahri Azzat: “It is not invalid until challenged.” In essence, just because a Minister signed an order using another name, it doesn’t automatically make the order invalid. But if someone were to challenge the order in court and the court decided in their favour, then the order can be set aside. So while it won’t cancel out all orders like this, this does give people the right to fight their case in court if they found themselves affected by such an order. It also depends on the nature of the declaration/order The lawyers in the man’s case also said that the order was set aside because of how serious the issue was. In this case, the person’s liberty was at stake as he was going to be locked up for a long time. According to some lawyers, in cases like this, the courts can be very strict when looking at the fine print of the of the law. “Technicality becomes important when a case involves a person’s liberty.” -Human rights lawyer Andrew Khoo as quoted by Free Malaysia Today In other words, a Menteri using an unofficial name to sign an order alone won’t be enough for you to win a case in court. You can still challenge it in court, of course, as that will always be your right. But if the order isn’t major enough that it would affect your liberty and life, there’s still a chance that the order might be retained. While many have claimed that signing with an unofficial name is against the Ministerial Functions Act 1969, there is actually no such requirement under that law for the minister to use his legal name. But again, this doesn’t mean that ministers can use any name they like when signing off laws. At the end of the day, if the court decides that the minister was wrong in doing so, the regulation/declaration/order can be done away with."
"Can M'sian companies get sued if people believed their April Fools' product? On April Fools’ Day, we’re already expecting to see gags and fake products filling our social media timeline. Companies will put up posts about products that are outlandish and completely off-brand. Some websites known for writing lengthy articles might suddenly post one-word articles. Even if it’s all in good fun, not everyone gets clued in. In some rare cases, there might be some people who take the fake products a bit too seriously. So if that happens, can companies get sued if people believed their April Fools product? Companies need to make the joke obvious To sum up the answer: it depends. In this situation, it’s not as simple as: “If you come up with a joke product for April Fools, a customer who believes it can sue you”. Just like any legal case, it still depends on how the joke is presented, and if it’s obvious enough that the product is just an April Fools gag. So this puts some onus of responsibility on the company to make it obvious, instead of expecting people to know simply because it’s 1 April. According to lawyer Fahri Azzat: “[I]f the advertisement is meant to be a joke, they should be scrupulous about including an element that informs the reader that it is not serious or a joke. They should not put out what looks like a serious advertisement on 1.4.2021 (without the disclaiming element) and expect everyone to think it's a joke.” – Fahri Azzat, lawyer. This part might not be too difficult, as most of the products can usually be inferred as a joke. But for a better explanation, let’s look at an example. Case study: Explicit swim coaches Let’s look at this particular ad about getting a naked swim coach for just an extra RM120. This ad might look obvious enough. As you can tell, there are elements that imply it’s a joke: namely that the product is only available for one day, on 1 April. Not only that, these types of services are illegal in Malaysia. So generally, most people would infer that this is a joke because of that element. Despite that, there can be a small percentage who might think this is true or read too much into this. As in, they believe this is a real ad presented as a joke, or believe they could force them to fulfill the offer. They might sign up expecting it to be real, and include an extra RM120 when paying their fees. One way to mitigate that is to include ‘Terms and Conditions apply’ in the poster. So having a T&C means there are rules on that offer, and it’s not as simple as you giving that money to them for it. So this can apply not only to this ad, but other company’s April Fools’ Day ad too. And even if the customer has paid the money, there is no way to enforce it. This might look like a contractual agreement where one company has made an offer and the other party accepted it. But contracts offering illegal services are illegal, so there is no way to enforce it, or sue them for breach of contract. READ MORE: 5 basic things you should always do when signing contracts in Malaysia “Nope. If that person sues, the contract will not be enforced on grounds of illegality or public policy. Yes, this may be a contract, but no we are not enforcing contracts for naked swim coach services.” – Fahri. However, if something is obviously legal, such as offering 50% off (the fees, not clothes) on swimming lessons on 1 April, they can be sued for misrepresentation or even fraud. As mentioned earlier, you can’t put a serious looking ad without disclaimers and expect people to get that it’s a joke. Prank responsibly April Fools’ Day can be a fun day for companies as they usually don’t have to worry about selling a product. Rather, they can focus on creating something they and their readers could laugh about. However, companies should still be responsible and not use that day to swindle their customers, and then claiming it’s “just a prank”. Not only is that illegal and can get you sued, it’s also totally not cool."
"In Msia, what happens if you don't tell your insurance provider about a previous illness? If you have a medical insurance policy, you know that it might be of help you if something untoward were to happen. Typically, your insurance company would approve most claims, unless there’s an issue with your policy, or you didn’t pay your monthly premiums. But what if you signed up for a policy and you didn’t tell the agent—by accident or on purpose—that you have or used to have a medical condition? Well, as you might you have guessed... Insurance companies can cancel your policy Almost all insurance companies make it mandatory for policy holders to inform them of any previous illnesses or even any pre-existing conditions that they might have. And under the Financial Services Act 2013, you have an obligation to be as transparent as possible with your insurance provider. Section 5 of Schedule 9 of the Act says: (1) Before a consumer insurance contract is entered into or varied, a licensed insurer may request a proposer who is a consumer to answer any specific questions that are relevant to the decision of the insurer whether to accept the risk or not and the rates and terms to be applied. (2) It is the duty of the consumer to take reasonable care not to make a misrepresentation to the licensed insurer when answering any questions under subparagraph (1). In essence, it means that your insurance provider can ask you questions that are relevant to the policy when you sign up for it, and that you should not misrepresent yourself (be untruthful) when answering them. Unsurprisingly, this is an offence and your insurance company can deny your claim or even cancel the whole policy if they find out that you didn’t tell them the truth. But sometimes, failing to disclose this information can be a genuine mistake. A woman was not allowed to claim her insurance policy Just last week, The Star reported the case of a cancer patient, Miss Tan, who was initially not allowed to claim for her critical illness. She eventually did get her money back, but the story isn’t as simple as it may sound. We’ve summarized the facts of the case for you: She had two insurance policies. She bought the first insurance policy which was worth RM500,000 in 2015 She bought the second policy which was worth RM2,000,000 in 2018 She was diagnosed with 4th stage cervical cancer in 2019 and had claimed critical illness so that she could use the policies At this point, the insurance company said that she had broken her own policies by not telling them about her mental state, which is when she had depression some years ago. According to them, she had seen a doctor for a psychological evaluation in 2014 and had an anxiety attack in 2017, for which she was given medication. But according to Miss Tan, she had answered all the questions truthfully when signing up for the policy—including the ones on her mental state. They still didn’t allow her to claim for her policies, though. This is when she sued them in court, stating that the other insurance companies she had policies with had allowed her to claim. The insurance company ended up paying her back In this case, the court didn’t end up passing a judgment. Instead, the parties themselves agreed to resolve the matter and the court just recorded that judgment. Miss Tan and the insurance company both agreed to a settlement of RM500,000, which is basically the amount of her first policy. Once the settlement is paid to her, neither her nor the insurance company can take action against each other over this same issue again. Unfortunately, we don’t have much information on what exactly transpired during this hearing that led to them coming up with this settlement. Also, this case can’t really be considered as a precedent just yet. If you remember, she had bought two policies. The settlement that has been given is only for the first policy, so we don’t know the outcome for the second policy just yet. However, the hearing for her second policy is just right around the corner, on 14th April 2021. We might be able to get more information on this if the details are later made public. And if we do have any additional info, we’ll make sure to update this article. But for you readers, the bottom line is this: Insurance companies can cancel out your policy if they find out that you hid a previous illness from them. However, it’s not so straightforward and they might not be able to hold your money if: you had genuinely answered any questions they asked you as truthfully as possible you had an isolated incident of a health condition, which cannot amount to you not being truthful about your health So if you feel that your claim for your insurance money is being denied without a good reason, you too can sue your insurance provider in court."
"If you hit a car from behind, are you at fault under M'sian law? It depends."
"In M'sia, can you drive through a red light if no one's around?  No."
Car kena clamp by condo management: Can they legally do that? Yes.
"Here's how to 'legally' change your car paint in Malaysia If you’ve had your car for a few years, you might be thinking of giving it a new look with a fresh coat of paint. Painting your car isn’t that big a deal, but if you didn’t already know this, there’s a little legal process involved. Thankfully, it’s pretty straightfoward. While this article is on how to legally change your car colour, you can use it as a guide for other car modifications as well. And that’s because the process is pretty much the same. Also, this guide is for those who want to paint their car a new colour altogether. If you’re repainting your car with its original colour, you don’t need to go through this process. There’s a form you need to fill Before we tell you about this form, the first thing to know is that this whole process works only after you paint your car. So, you don’t need to get permission from JPJ before starting the paint job. You’re allowed to paint your car any colour(s) you like, but you just need to inform them after that. This also applies for ‘car-wrapping’, which is very different from painting your car the traditional way. The point is, once you change your car colour, JPJ needs to be notified. So after you’ve gone to the bengkel and got your car painted, you need to head to your nearest JPJ branch. Once you’re there, ask for the Borang K8. This is the form that is used for all car modifications, and it helps JPJ keep track of all the changes made to a car. We found a sample form here, but you have to get a physical copy from JPJ itself—just in case there have been any changes made to it. You’ll need to bring the original car grant for this process to prove that the car really belongs to you, as well as your MyKad for identification purposes. Once you’ve filled in the form, hand it back to the pegawai and they will enter all the information in the MySikap system, which is JPJ’s online portal for all registered vehicles in the country. When filling in your new paint colour, you might be confused as to what exact shade your car is. You can ask the office for clarification on what to fill in. If you have two or more colours and not just one, write down the dominant colour (the one that makes up 60% or more of the car). And voila, you’re all done. It’s really as simple as that. Not informing JPJ is an offence You might think that it’s not a big deal to give your car a new look. But actually, you have a legal obligation to inform JPJ every time you make changes to your car. As you might have guessed, this rule exists so that: no one can change the look of a car that’s been used for illegal activities no one can steal a car and change how it looks on the outside, making it untraceable You get the gist: it’s to make sure the car is not unrecognizable, misused or stolen. And this is why it’s a MUST for you to inform JPJ of your car’s new colour. Section 12 of the Road Transport Act 1987 says: (2) The registered owner of a motor vehicle shall forthwith inform the Director of a registration area in writing of any circumstance or event which affects the accuracy of any entry in the register relating to the motor vehicle, and shall at the same time forward or deliver to the Director the registration certificate relating to such motor vehicle In essence, it means that you need to let JPJ know if you’ve changed anything that would conflict with how your car is described in JPJ’s registry. So if your car is now black but it used to be red, it’s time to update the form. Section 119 goes on to say that anyone who fails to do this can be fined up to RM2,000 or be jailed for 6 months if it’s their first offence, and be fined up to RM4,000 or be jailed for up to a year, or both for subsequent offences. Some car modifications aren’t allowed Like we said earlier, besides paint jobs, there are other car modifications you can do and each time, you’ll need to fill in the same Borang K8. However, there are some car mods that are totally not allowed. We’ve written a detailed article on this which you can read below: [READ MORE: What private car modifications are illegal in Malaysia?] If you still go ahead and do them, you can get saman-ed for it or even be made to undo those modifications (those who only use modified high-beam lights, we’re looking at you). It can be difficult to know exactly what is and isn’t allowed sometimes. But the rule of the thumb is to not make modifications that can make it unsafe for yourself and others to be on the road. And if you’re still not sure about the specifics, for example, how dark your window tint can be, contact JPJ to find out. You can drop by one of their branches, or you can contact them through the following channels: Number: +60 3 8000 8000 Facebook Twitter"
"Can your Majlis Perbandaran stop you from growing plants outside your home? This MCO—in all its forms—has seen most of us picking up several hobbies and skills to make better use of our time. Of all the hobbies, one that many (this writer included) have taken up is gardening. If you’re one of these people, you might have plants all around your home at this point. But actually, growing plants everywhere might just get you in trouble with your Majlis. In fact, just last week, you might have heard that... MBSJ is restricting people from having plants outside their homes Malay Mail recently reported that Majlis Bandaraya Subang Jaya (MBSJ) is no longer allowing residents to plant fruit trees and vegetables outside their homes. It’s not a complete ban, though. Instead, residents are expected to apply for permission from the Majlis via the Resident Representative Council (MPP) to grow these plants outside their compounds. According to this article, there are a few reason they’re imposing this rule: the Majlis already has a landscaping plan and if people were to randomly place their plants, it would spoil the look of the place if people weren’t responsible enough to maintain the plants well, they would be overgrown and be a nuisance the pots the plants are placed in, if not cleaned, can be a breeding ground for Aedes mosquitoes some residents take up most of the shared spaces for their plants, leaving little for others In a separate article by the Malay Mail, it was also said: MBSJ reminded residents that placing pots and planting crops in back alleys, front yards outside one’s home and playgrounds without permission, monitoring and care is an offence. So, to prevent all of this, the Majlis wants to vet through the type of plants that residents want to plant, and ensure that they’re planted in a safe location. However, the Majlis won’t be taking in individual applications. If you and your neighbours want to plant something right outside your house, you need to put in an application together. This is usually because compounds outside the house can be shared by two adjoining houses. This also applies to other shared spaces, such as a grassy area facing your row of houses. Anything outside your house belongs to your Majlis This may or may not be common knowledge, but actually, only things within your compound are your property. This means that even the road outside your house cannot be considered to be yours, even if it’s literally in front of your gate. We’ve covered this in a previous article, where basically anything outside your gate belongs to your Majlis Perbandaran—and that includes any plants grown there. [READ MORE: In Malaysia, can you cut your neighbour's tree if it grows into your compound… and steal its fruit?] So this also means that you cannot cut off or take parts of plants that are growing outside your gate, even if you think that they might be yours to take. And when you pay tax to the Majlis, specifically your cukai taksiran, part of that money is used for landscaping the area. This is why your Majlis owns any plant that they place and maintain outside your gate. Now, while it is MBSJ that has made the news for banning gardening in shared areas like this, they aren’t the only ones who can make these rules. Your Majlis can set guidelines on gardening If you didn’t already know this, each Majlis Perbandaran would have their own rules. These are called by-laws. Think of them as smaller laws that work together for the bigger laws to work more effectively. Because each Majlis has their own laws, some might allow for plants to be grown outside your compound, and some may not—it really depends on their respective laws. Instead of banning gardening outside house compounds, they can also set some guidelines on what types of plants are allowed and where they can be placed. We came across one such set of guidelines from a Majlis Perbandaran in Kuching. They even have a fixed list on what kind of palm trees are shrubs can be grown. It’s impossible to list down what each Majlis does and doesn’t allow because like we said, it really depends on what they’re okay with. So if you’re unsure of how things work where you live, pop by the Majlis office and ask them for clarification. And if you’re also unsure about what exactly is and isn’t part of your compound, take a picture of your house and ask them to confirm your boundary. What about condos and apartments? Condos and apartments, as well as other high-rise or gated properties are known as strata properties. Strata properties have management bodies that maintain these places, and via the Strata Management Act 2013, the managements have the right to impose rules for residents to follow. There’s no fixed list on the type of rules that they can impose, but it can cover what you can and cannot put in your home—including plants. In strata properties, there are ‘common areas’—areas you share with all residents such as the facilities, and ‘parcels’—individual home units. Your management can allow you to only grow plants in your own parcel and not anywhere outside of it. Or for example, if the plant on your balcony was growing into the floor above yours, the management can have you remove it. Just like your Majlis, the management can also have a set of laws in black and white and if they’re broken, the offender can be penalized. And because it’s the management who has the power to do this, you usually won’t see your Majlis getting involved. The bottom line is, regardless of where you’re staying, there can be limits on where you’re allowed to grow your plants. Even if you feel you might be beautifying the place by having them, the authorities have the right to remove them if they’re detrimental in the long run. If you’re not sure if you can keep your plants, reach out to your Majlis or management. And if there’s a permit that you need to apply for, get it done ASAP before you’re forced to part with your plant child."
"AirAsia X refund form: Don't know how to fill it? Here's how Disclaimer: This is a general guide on how to fill in the Proof of Debt form. AskLegal will not be responsible for any unsuccessful refund claims. For those of you who had bought air tickets last year, you would have had to cancel your plans due to the pandemic. Because of that, you might have tried to get a refund from your airline. We previously wrote an article on whether airlines can refuse to refund you: [READ MORE: Can airlines in Malaysia refuse to refund you for cancelling your flight?] Interestingly, the Malaysian Aviation Commission (MAVCOM) said that airlines could choose to offer you other types of refund besides cash, such as store credit, if they couldn’t afford to pay you cash. But recently, AirAsia X announced that they’re now allowing people to claim refunds. The issue: instead of a simple refund form, they sent a proof of debt form, which can be really confusing for most of us. It’s not exactly simple to fill in, so hopefully this article can help you. Here’s how to fill in the form Usually, when a company sends a proof of debt form, they’ll usually include information on what to fill in the document itself. If not, they’ll attach a guide such as this or this. So based on that, what we’ve done here is a general guide on how proof of debt forms are usually filled. Page 3 To avoid any confusion, fill in the information using block letters, eg. KHAIRUL AZMAN instead of Khairul Azman. There are also paragraphs, namely paragraph 3 and 4 which you need to cut out depending on who you’re claiming for. To cut out, simply take a pen and a ruler, then strike out the whole paragraph. So it should look like this. Claiming for yourself: Cut out paragraph 3 and 4 Claiming for someone else: Cut out paragraph 4 Claiming on behalf of a company: Cut out paragraph 3 * If claiming for yourself, put in “me.” If claiming on behalf of someone else, such as your child, put in their name and IC number. Eg. MATLAN BIN KHAIRUL (IC NO. 876543-21-1234). If it’s for a company, put in the company name. ** This is the reason AirAsia X owes you money. Put in “Cancellation of [FLIGHT], [FLIGHT NUMBER], [BOOKING NUMBER]. Leave the bottom of page 3 blank, as you will fill that in when you get it signed by the Commissioner of Oaths (Pesuruhjaya Sumpah). Page 4 At the top of page 4, insert the e-filing number that was included in your e-mail. As for the box, fill in the detailed breakdown of what you’re claiming. Date: Insert the date you bought the ticket Consideration: Fill in the flight, flight number and booking number Amount: RMXXX.XX Remarks: Put in any information on the supporting documents you’ve attached If there isn’t enough space in the box to fill in the breakdown, send an attachment with the additional information. The rest of the notes pretty much reiterate the terms and conditions—include any proof to strengthen your claim, include any other information that may be relevant to you, and so on. Documents to attach When submitting this proof of debt, you’ll need to submit a few documents as well to prove you bought the tickets. These include things such as your booking confirmation email, cancellation email, as well as transaction receipts. You’ll also need to include any Loss Mitigants that can affect the amount you’re claiming. Loss Mitigants are anything that will reduce the loss suffered by the company—in this case, AirAsia X. For example, sometime last year, AirAsia X might have offered to give you store credit or the option of postponing your flight instead of a cash refund. This would have been one way for them to minimize their losses. So if they had sent you an email offering you one of these options, include this in your claim as a proof of a Loss Mitigant. Do note that you MUST submit your hard copy, or your claim will not be accepted, even if you filled in the electronic form. It’s part of their debt restructuring programme The reason the process is a bit complicated is because AirAsia X has applied for debt restructuring at the High Court. And because it’s a legal process, anyone who wants to claim money back from them has to fill in a proof of debt form. This form isn’t only for passengers who want to get their money back, but it’s for anyone AirAsia owes money to. Also, if you didn’t get an email with this form from AirAsia, it means you’re not eligible to claim. Do note that this only applies for flights booked before 30th June 2020. The deadline to submit your claim is 7th April 2021. So if you are entitled to a refund, make sure you do it ASAP. Bonus: Complicated legal jargon? This is what they mean You’re free to skip this section if you’re only interested in filling in the form. But if you do want to know what it means, read on. The terms and conditions in the form they sent to you may be difficult for laypeople to understand. Some Facebook users also said that they would get the help of a lawyer to fill in the form for them. But if you’re planning to do this on your own, read on find out what they actually mean: Your completed POD Form shall be sworn before a Commissioner for Oaths or such other equivalent qualified person in the jurisdiction where you are based. What this means: After you fill in the form, take it the nearest Commissioner of Oaths for them to sign and stamp it. You can also take it to someone with similar qualifications as a Commissioner of Oaths. (You can Google where your nearest Commissioner of Oaths is located). Your duly attested POD Form together with copies of supporting documents to substantiate your claim is to be sent to and received by us on or before the Relevant Date. The said duly attested POD Form together with copies of supporting documents must be submitted by hard copy by mail to AirAsia X Berhad (POD), RedQ, Jalan Pekeliling 5, Lapangan Terbang Antarabangsa Kuala Lumpur (klia2), 64000 KLIA, Selangor Darul Ehsan, Malaysia. You may, in addition to sending the hard copy by mail, complete the e-form using the following link: https://forms.gle/TC4vBHYxeifUB4zR9. What this means: Attach the form that has now been stamped and signed with any proof of your claim—booking confirmation, cancellation emails by the airline etc. Submit all of this to the address stated above. You can also send a copy online in the link provided above. But you MUST send the hard copy to the address given. All debts denominated in any currency not in Ringgit Malaysia (“RM”) will be converted into RM at the exchange rate used by AAX Group as at 30 June 2020 per its accounting system. What this means: If you had paid for your ticket in another currency, it will be converted into RM following whatever exchange rate used by the company on 30th June 2020. In the event of any failure on your part to lodge your duly attested POD Form by the Relevant Date to our physical address set out in paragraph 2 above, AAX Group reserves the right to rely on its record to ascertain the amount of debt owed to you for the purpose of the Proposed Deb Restructuring. For the avoidance of doubt, soft copies submitted by electronic mail/through the link will not be relied on by AAX Group and you must return the hard copy by mail to us at our physical address as set out in paragraph 2 above by the Relevant Date. What this means: If you don’t send the hard copy of the form by 7th April 2020 to the address stated, the company will go by their records to check the amount they owe you. The company will not refer to any soft copies you sent them to check the amount. In the event the claim made in your POD Form is inconsistent with AAX Group’s records and/or is not agreed to by AAX Group, the amount to be admitted as owing to you for the purpose of the Court convened meetings of creditors to be held will be determined by an independent adjudicator and/or the Chairman of the CCM (or his alternate). What this means: If the amount you’re claiming doesn’t match the airline company’s records, or they don’t agree to it, an independent party and/or the CCM Chairman will decide on the amount you’ll be paid. In quantifying any amount which may be claimed by you, please include any information in relation to Loss Mitigants. In including any Loss Mitigants, please attach along with the relevant proof of debt any supporting documents or reasons of the same. What this means: When claiming for your refund, if there’s anything that you think may lessen the amount you’re refunded, let them know here. For example, AirAsia offered to refund your points into store credit instead of paying you back in cash. Another example would be if Air Asia postponed your flight to another date. AAX hereby reserves all its rights in relation to any securities which you may claim are being held by and/or are charged to you to secure the amount owing to you. However and subject to you being legally entitled to the securities as claimed, your rights as to the said securities remain intact and shall be dealt with as part of the Proposed Debt Restructuring. What this means: This basically means that they will acknowledge any debt they have to you, if you’ve sent the proper proof. However, the payment process will be handled through their debt restructuring program, so it isn’t a straightforward refunding process. This proof of debt exercise has been sent to you for the purposes of the Proposed Debt Restructuring and is on a without prejudice basis. This proof of debt exercise shall not be construed as an admission of liability and AAX reserves its rights in relation to any amounts claimed and shall be entitled to dispute any amounts submitted/claimed. What this means: This form doesn’t mean they’re taking liability (blame) for anything, and they can dispute the amount you’re claiming if there’s something with it."
"In Malaysia, can you buy a house and then cancel the purchase after that? After many months of searching, you finally found the home of your dreams. You go to meet the developer, put a down payment on the property, and sign the Sales and Purchase Agreement (SPA). This agreement is what will detail all the rights and obligations of the developer and you, the buyer. So it’s a very important document. A few weeks after signing it, you lose your job and you realize you’ll now be unable to pay for your new house. You decide to forgo the whole idea of having the house, and you go to meet your developer to cancel the deal. But they tell you that you’re not allowed to cancel the agreement, and that you’re already bound by it. So in such a situation, what can you do? An SPA is a legal contract Like we said, the SPA is pretty important document. In fact, it’s a contract which is indeed legally binding. Based on contract law, once you sign that piece of paper, you can’t opt out, unless the contract allows for it, or if there are some special circumstances. The contract only ends once both parties have completed their part of the deal. So, if one party abandons it halfway, the other party can take action against them. But like most things, there’s an exception to this as well. There are ways that you can get out of a contract, if you really need to. And this brings us to our next point... You can, but it’s not easy The Housing Development (Control and Licensing) Act 1966 are a set of laws that lay down the rights of homebuyers and property developer. Section 8A of this Act specifically talks about how a homebuyer or developer can cancel a Sales and Purchase Agreement. It’s a pretty long section, but basically, you can cancel the SPA if: you apply for a termination to the Minister of Housing, and they approve it the cancellation is done within 6 months of signing it at least 75% of the homebuyers agree to terminate the SPA This sounds simple, but there’s a reason we said it’s difficult to terminate an SPA—the conditions above only apply in cases where the entire housing is going to be scraped, and not just one or two individual houses. An example would be if your home was under construction, but the whole construction had to be halted due to a mishap. If some of you remember, this actually happened in Taman Desa last year: [READ MORE: Can you get your money back if your uncompleted condo collapses in Msia?] In that case, the entire condo had collapsed and nobody knew when the project would continue. Because it was uncertain if the homebuyers would even get their homes, a property lawyer suggested that all the housing contracts could be cancelled, but only if the homebuyers and the developer agreed to it. Other scenarios would be if the developer has been blacklisted, or there has been some fraud on their part. But what if nothing major like this happened, and you’re just an individual homebuyer who didn’t want the house anymore? Check if your agreement also allows for it For individual terminations, you need to check your SPA to see if there’s specifically a clause that allows for terminations. Most SPAs usually do have one of these, stating that the homebuyer would need to pay a penalty if they want out. Whether or not you need to give a valid reason for terminating the agreement also depends on other terms in your agreement. If your developer needs a valid reason and you can’t provide them with one, they can choose not to let you go. When you decide to terminate your agreement is also super important. If it’s too far down the line and your house is almost completed, they can reject your attempts to end the contract. In the case of financial difficulties, it’s not just your developer you need to negotiate with if you can’t afford the house anymore. There’s also a 3rd party: the bank that gave you the loan. Even if you successfully manage to end the housing agreement, the bank can still demand payment from you, especially if they’ve made the whole payment to the developer. So again, it’s important to terminate the agreement as early as possible if you need to, before the bank has paid the developer in full. Can your developer cancel the SPA instead? The law on cancelling this contract will be the same, regardless of whether it’s the buyer or the developer who’s cancelling it. The point is that one party is leaving the contract halfway. It’s worth mentioning that it can be harder for the developer to get out of the contract compared to the buyer, as there has to be a very good reason as to why they’re not building your house anymore. They can be made to pay compensation to you for that as well, especially if they just abandon the property altogether. [READ MORE: What can you do if your Malaysian developer abandons your property?] But if your developer wants to cancel the SPA and you don’t, you can take legal action against the developer, of course. Before buying your property, it’s important to check all the terms and conditions of the agreement before signing it. The good news is, when you’re signing the SPA, there’ll be a lawyer assigned to you by the developer, or you can bring your own lawyer. So if you don’t understand anything in the agreement, make sure to ask them for clarification first."
"Unfairly fired? Here's how you can take your boss to court in Malaysia You’re on your way to work. It’s just like any other morning. Once you reach the office, you try to clock in, but you’re getting an error message. Out of nowhere, your boss comes and tells you that you’ve been fired because you’re always late to work. You’re shocked because you know you’ve shown up on time, and you want to explain yourself. But your boss tells you to take your things and leave. You’ve just been unfairly fired. Instead of accepting defeat, you want to take legal action against your boss. But...where do you even start? You’ll need to go to the Industrial Court The Industrial Court—the court that hears all employment matters—works a bit differently compared to ‘normal’ courts. In normal courts, a case is heard by one or more judges and a decision is made. This decision can be appealed to the higher courts unless of course, you’ve already reached the final court. Industrial Court decisions—known as awards—can also be appealed, but the process is slightly different,. And unlike normal courts that will either focus on penalizing or compensating someone, the Industrial Court can give you monetary compensation OR get your company to give you your job back. We’ll explain these two points in detail below. You can either go to the court by yourself and file a case there, or you can go through a lawyer. Make sure you gather whatever evidence you have to show you have a good case. This can be previous promotions to show a good track record, your letter of sudden termination, and so on. There are five Industrial Courts in Malaysia—one in Kuala Lumpur, Johor, Perak, Penang, Sabah and Sarawak, respectively. You can find the contact number for each one here. One you’re there, they will guide you on which forms you need to file a case. And if you’ve already found a lawyer, they can go with you or on your behalf. The court will ask you to solve the matter privately first Here’s an interesting fact: Before the case even starts, the court will first encourage you to solve the matter on your own. While that may seem confusing, there’s a sound reason behind this. The court will only want to hear disputes that really can’t be solved by the parties. They’ll only step in if there’s a need for the law to be applied in the case. For this reason, the parties will have to go through a negotiation stage. So perhaps, your boss might offer you some cash, or give you your job back, for firing you without a good reason. But let’s say you’re not happy with your boss’ offer and think you deserve better compensation. If the court sees that you and your boss can’t meet halfway, only then will they agree to hear the case. Previously, the Minister of Human Resources was the one who would refer cases that he felt needed to be heard to the Industrial Court. But an amendment to the Industrial Relations Act 1967 has altered this step. Instead, it will be the Director General of Industrial Relations who will vet claims and automatically approve them to be heard by the court. [READ MORE: 5 important changes to Malaysian employment laws that you need to know] You either get compensation money, your job back...or nothing at all Now let’s say your case does get the green light to be heard in the Industrial Court. The court will then apply the relevant law in deciding the case, based on the type of dispute that’s before them. That’s because each type of dispute has different legal tests that the court will use. In the introduction, we gave the example of an unfair dismissal. Besides dismissals, the court can hear trade disputes, non-compliance with a court order, and so on. Assuming the court has decided the case in your favour, there’ll usually be two options for compensation that can be given to you. Like we mentioned earlier, one can be monetary compensation, and the other is reinstating your former job. But in some cases, the court will decide, based on the facts, that it wouldn’t be suitable for you to get your job back. This can be for several reasons, but the most common one is that the work environment is so hostile, that it would do you no good to go back there and work again. So if this happens, they’ll only offer you the monetary compensation. And of course, if the court decides that it’s your company who’s in the right, you don’t get any compensation. In fact, you may be asked to pay your company costs instead, to makeup for any legal fees they incurred. The court’s decision used to be final As mentioned earlier, the Industrial Court’s decisions used to be final and binding, for the most part. Back then, if you were unhappy with the Industrial Court’s decision, you could file an appeal to the High Court IF you feel the way in which the case was decided was wrong. This is called a judicial review. The High Court would then look at whether the manner in which the case was decided was correct, and not so much at whether the decision was right or wrong. You were given 3 months to appeal to the High Court. But one of the changes made to the Industrial Relations Act was to this review process. Now, you can file an appeal at the High Court—a normal appeal, and not a judicial review. So, the High Court can cancel out the Industrial Court’s decision if they feel it’s just wrong. However, parties only have 14 days from the Industrial Court’s award to make this appeal instead of 3 months. As you can see, the process of suing your boss in the Industrial Court is rather straightforward. However, do note that like normal court cases, the Industrial Court can take up to 1-2 years to give out the final award. If there are more issues and evidence to be looked at, the court will need more time to go through everything. And if you don’t want to burn bridges and end on a wrong note with your employer, you can opt for an out of court settlement to see if the matter can be resolved privately."
"6 things to know about Malaysia’s new “fake news” Emergency Ordinance In case you haven’t heard, the government has just gazetted the Emergency Ordinance targeting “fake news” on Covid-19 or the emergency. Titled Emergency (Essential Powers) (No. 2) Ordinance 2021, it is operational from 12 March 2021, one day after it was announced. Under the Ordinance, sharing fake news about Covid-19 or the emergency, in whatever form can be punished. Most of the headlines are about Section 4, where people who create or share fake news can be fined RM100,000. But what else is included in the Ordinance? Disclaimer: Do note we are using simplified language to aid in understanding the Ordinance. If you’re looking for the exact wording, you may refer to the Emergency Ordinance here. 1. You’re fined for making and/or sharing it Under the Ordinance, fake news is defined as: “...any news, information, data and reports, which is or are wholly or partly false relating to COVID-19 or the proclamation of emergency, whether in the forms of features, visuals or audio recordings or in any other form capable of suggesting words or ideas.” Under Section 4(1), anyone who creates or shares fake news with the intention to cause, or will likely cause fear or alarm to the public, if found guilty can be fined up to RM100,000, imprisoned not more than three years, or both. Besides these punishments, the court can also order the person to apologise to those affected by it. If they do not apologise, they can be fined another RM50,000, imprisoned not more than one year, or both. Anyone who gives financial assistance for creating or sharing fake news — or has reasonable grounds to believe the money will be used for that purpose – will also be punished. Under Section 5, they can be fined up to RM500,000, imprisoned for up to six years, or both. 2. The law applies even when you’re overseas...and not a citizen Under Section 3, if you commit any offence in the ordinance outside of Malaysia, it will be treated as if you did it in Malaysia. This applies regardless of your nationality or citizenship. But only if the offence concerns Malaysia, or the person affected by your action is Malaysian. 3. You have to remove it within 24 hours If the police order you to remove the fake news from your publication, under Section 6(1) you have to do so within 24 hours. If not, you can be fined up to RM100,000. For each extra day that it’s up, you can also be fined up to RM3,000 per day. However, you can make a request to the High Court to review this decision. Anyone who’s affected by fake news shared or created by you can make a request to the court to get it removed. Interestingly, the court can serve you the order not just through a letter, but also via email or even your social media accounts. You can appeal the order within 14 days of being notified. However, if it’s the government that tells you to remove it, you can’t appeal the decision. And if you fail to remove the fake news for whatever reason, under Section 9(1) the court can order the police to do what’s necessary to remove it. 4. A list of the evidence can be evidence If you’re investigated under this ordinance, any evidence gathered will not be treated like most evidence under the Evidence Act 1950. Statements made by anyone during an investigation, even if they died or disappeared afterwards, can still be used as evidence under Section 11. And under Section 12, any statement you make, whether verbally or in writing, to anyone at any time, can be used as evidence. All evidence gathered such as documents, whether it’s done before or after you’re charged, can be used as evidence. And under Section 14, if the evidence cannot be shown in court, a list of the evidence gathered is enough to prove its existence. Copies of the document are also sufficient as evidence in court. 5. You can be arrested for it without a warrant Under Section 16, every offence listed in the ordinance is a seizable offence: which means that the police can arrest you without a warrant. And if they’re investigating you, they must be given access to your computerized data, whether it’s stored inside the computer or elsewhere. You are also required to cooperate by giving any password, encryption or decryption code, softwares and even hardwares to access the data. If you refuse, you can be fined up to RM100,000, imprisoned up to one year, or both. If traffic data is necessary for the investigation, you may be asked to disclose it, and then preserve it. 6. Helping someone will get you the same punishment And overall, if you helped someone else commit any offence in the ordinance, you will be given the same punishment for the offence. But there are specific provisions for companies and the people behind them. Under Section 25, suppose a company committed the offence, the director or CEO or anyone in charge of management can be charged together with the company. If the company is found to be guilty of an offence, the management will also be guilty of the same offence. The only exception is if they can prove that they did not know about it, or it was done without their consent. It can also go from the bottom up. Under Section 26, you can be charged with the same offense as your employee if it was done at the office during working hours."
"5 things Malaysian tenants can't do without their landlord's permission If you rent a place, you would know that besides just paying for the space, you’re also responsible for maintaining it. Now in case you weren’t aware, there aren’t fixed laws for rentals in Malaysia, and a specific Act for this is still in the works. But because there’s no law yet, it can be quite hard to define the duties and obligations of landlords and tenants. The main thing that can help with setting some ground rules and work as a legal safeguard is a tenancy agreement. We previously wrote on some legal duties that landlords have: [READ MORE: 5 ways Malaysian landlords could be breaking the law] In this article, we’ll be looking at some of the things that can be prohibited for tenants to do under a tenancy agreement. So to clarify, if your tenancy agreement does allow for these things, it’s fine. But we’ll be covering things that are typically not allowed in tenancy agreements, or things that require permission from landlords. 1. Sub-letting Sub-letting is basically you renting a place, and then having other people, known as sub-tenants rent it under you. So, in other words, you get other people to stay with you to pay the rent together with you. Even if your tenancy agreement does allow for sub-letting, you still should let your landlord know. This is so that the tenant doesn’t have the leeway to invite just about anyone into the home. But if your tenancy agreement is totally against it, then sub-letting can land you into trouble. Your landlord can evict you, and he will have the legal right to do so since you went against the tenancy agreement. 2. Doing renovations to the house This one may seem like a no-brainer. You’re not supposed to make any changes to a property that isn’t legally yours, unless the landlord actually want you to do so. So whether it’s just a small paint job or changing the tiles in the house, you cannot make alterations to the house without your landlord’s knowledge. Renovating without telling your landlord will do more than making your landlord angry—they can also take legal action against you. But that’s not all. In fact, the landlord themselves can get in trouble over a renovation that you, the tenant, did. If you are renting a strata property (condo, apartment, a high-rise or gated property), the management of that place has to first approve it. If the management finds out that the house was renovated without their permission, it’ll be your landlord—the owner of the home—who can be further penalized by them. The same goes for landed properties. Renovations need to have permits issued by the Majlis Perbandaran, and it’s the landlord who has to apply for this permit—not you, the tenant. So if you go ahead and renovate, the Majlis can go after the landowner, which would be your landlord. [READ MORE: Certain home renovations in Malaysia may not require permits. Here's why] 3. Not paying the bills This’s one not something that requires permission from your landlord. Instead, failing to do it can get you penalized. In some cases, the rental would cover electricity, water and internet charges. So for example, your landlord might charge you RM1,000 for rental, of which RM300 will be used to pay the bills, regardless of what the bill charges are every month. If this is what your landlord does, then this part will not apply to you. But let’s say that your landlord asks you to pay your own bills based on monthly usage. Now if you don’t pay on time every month, the service providers can sue your landlord for non-payment, since the house is registered in his name. To prevent this from happening, your landlord can transfer these bill accounts to your name, even if the house itself is legally his. This way, these companies can sue YOU instead if you don’t pay your bills on time. We’ve written an article on this in detail before, and you can give it a read below: [READ MORE: If your tenant doesn't pay the electric bill after renting, what can you do?] 4. Using the home for other purposes If you’re renting a residential home, then it should only be used for the purpose of living. But let’s say you have an online business and you keep all the inventory at home. In cases like this, you’ll still need to tell your landlord—especially if you’re using that home address as your business address. But in residential leases, your tenancy agreement may totally ban you from doing any sort of business in the house. In cases like this, you will have to abide by the agreement and take your business elsewhere...literally. Failing to do so can lead to your landlord terminating the agreement, and you might not even get your deposit back since you went against the agreed terms. 5. Doing anything else that’s prohibited in the tenancy agreement The list of things that a tenancy agreement can cover is pretty much never-ending, and so we could only put down a few here. A tenancy agreement is essentially a contract between you and the landlord, so going against it can get you sued. Your tenancy agreement might prohibit having pets, not allow you to have parties or guests over, limit your access to facilities and so on. The landlord has the right to make these rules, but if you don’t agree with them, negotiate with your landlord before signing the agreement. Another important thing about tenancy agreements is that neither you nor the landlord can change the terms of the agreement after it’s been signed. If your landlord tries to do this to make you pay more rent, for example, you’ll actually be free from this agreement and you have the right to leave the tenancy. What if there’s no tenancy agreement? Like we said earlier, a tenancy agreement makes it easier to know what your landlord does and doesn’t allow you to do. So the lack of one can make it difficult to determine what exactly the boundaries are. If you weren’t given one at the start of your tenancy, your landlord might have had a verbal agreement on the house rules. However, It doesn’t mean that there can be no legal recourse if there’s no agreement. You can still file a police report, or talk to a lawyer if there’s an issue. But just to make sure both your rights are better protected, you can still get a tenancy agreement—even after your lease has already started. Just ask your landlord to draft a simple agreement, or get a lawyer to help you with it. Then, once both of you have signed it, it should be taken to the nearest LHDN office to be stamped to be made valid. Tenancy agreements aren’t exactly compulsory because like we said, there’s no specific law for it. But when the Residential Tenancy Agreement comes into effect, they just might become mandatory."
"5 tax offences you probably didn't know exist in Malaysia If you’re wondering why you’ve been seeing a tonne of tax articles lately, that’s because it’s time to file your taxes! As of March 1st 2022, e-Filing for last year’s returns has started. Now, before you start filing your taxes, it’s important to know the types of tax offences that we have in Malaysia. We’ve covered some of them before: [READ MORE: 5 common Malaysian tax offences you don’t want to accidentally commit] So this article is more of a part two to that, and we’ll be looking at some lesser-known offences here. 1. Not informing LHDN of your new address Section 89 of the Income Tax Act 1967 says: Every person chargeable to tax who changes his address in Malaysia...for another address in Malaysia shall within three months inform the Director General of the change by notice in writing. This means that if you move to a new place within the country, you need to send a letter to the Director-General of the Inland Revenue (LHDN) telling them your new address within 3 months of moving. The penalty for failing to do this can be found in Section 120 of the same Act, where it says: (1) Any person who without reasonable excuse— (d)...contravenes section 89... shall...be liable to a fine of not less than two hundred ringgit and not more than twenty thousand ringgit or to imprisonment for a term not exceeding six months or to both TLDR: If they find you guilty of this offence, you can be fined anywhere between RM200- RM20,000, be jailed for a maximum of 6 months, or both. The section also says you’ll be penalized if you do it ‘without reasonable excuse’. So if you did have a good reason for failing to notify them of your change in address, you might be off the hook. 2. Leaving Malaysia without paying your taxes Section 104 of the Income Tax Act says: (1) The Director General, where he is of the opinion that any person is about or likely to leave Malaysia without paying— (a) all tax payable by him (whether or not due or due and payable); (b) all sums payable by him under subsection 103(1A), (3), (4), (5), (6), (7) or (8) or subsection 107B(3) or (4) or subsection 107C(9) or (10)*; and (c) all debts payable by him under subsection 107A(2) or 109(2), 109B(2) or 109F(2)*, *We know this is a LOT of subsections, and we can’t type them all out here in detail, but essentially, they are the types of taxes and debts you need to pay to the government. The section goes on to say that you if you don’t pay all of the above and keep evading them, the Director General can issue a certificate which has all the details of your unpaid tax to the police or immigration, preventing you from leaving the country until you pay your dues. Section 115 of the Act goes on to say that if you know you’re prevented from leaving the country, but you still leave or try to leave, you can: be fined anywhere from RM200-RM20,000 be jailed up to 6 months receive both of the penalties above be arrested by the police or immigration without a warrant if they suspect that you’re about to leave/have left the country [READ MORE: 6 reasons Malaysians can be stopped from leaving the country] 3. Not letting an officer do their job Generally, preventing an officer or official from carrying out their duties is a no-no, and the same applies to tax officers. It’s a pretty long section, but Section 116 of the Income Tax Act says that a person who: prevents an officer from entering a land or building for investigations refuses to provide any books or documents requested by the officer refuses to help with any investigations done by the officer refuses to answer any important questions lawfully asked by the officer can be fined anywhere between RM1,000-RM10,000, be jailed for a maximum of one year, or both. 4. Employers who don’t provide EA forms for employees If you’re a boss of a company, this one’s for you. Just before the start date to file taxes, employers are supposed to give an EA form to each employee. This form will detail how much you earned the previous year, what deductions were made (such as EPF and EIS), and how much your taxable income is, among others. The duty to do can this be found in Section 83(1A) of the Act, which is pretty long, and that’s why we’ve summarized it for you. The penalty, however, can be found in Section 120: Employers who fail to provide this form can be fined RM200-RM20,000, be jailed up to 6 months. 5. Helping someone commit tax offences Yes, you read that right. Even if you yourself didn’t commit any of these offences (but you helped someone to), you can be in trouble with the law. Section 121(2) of the Income Tax Act says: Any person who aids, abets or incites another person to commit an offence under section 113, 115, 116 or 118 shall be deemed to have committed the same offence and shall be liable to the same penalty. The 4 offences listed above are: Section 113- incorrect returns (underpaying your taxes/giving LHDN wrong information) Section 115- leaving Malaysia without payment of tax Section 116- obstruction of officers (preventing officers from carrying out their duties) Section 118- offences by officials (tax officials themselves committing offences) If you’re caught helping someone commit any of these offences, you can be given the same punishment as the offender. So be careful not to break the law, whether accidentally or purposefully, as these penalties aren’t exactly light. If you’re unsure about something, do get in touch with LDHN to clarify your doubts."
"In Malaysia, can you legally “disappear” and start a new life? We’ve all fantasised about leaving everything behind and starting over somewhere new. Maybe change our name, get a new haircut, work in a cafe, and prepare a vague backstory to tell the new friends that you meet. But the reality might not be that easy. You probably have commitments – friends, family, partners, illicit lovers, unpaid PTPTN loans. Surely one of them will track you down and force you to come back? Or can they? You can’t be forced to go back Disclaimer: Asklegal does not endorse disappearing from your friends and family. First off, if you do go missing, someone close to you might lodge a missing person's report. However, if the police do find you, they can’t detain you or force you to come back because it’s not illegal to run away. We’re unsure as to whether they are required to report back to the person your whereabouts. But if the police could find you, chances are your friends and family could do so too. You might think that the police would have an upper hand in finding someone. This can be true in terms of network, manpower and reach. However, unless you’ve committed a crime, or your disappearance is linked to a crime, the police aren’t allowed to things such as asking your bank and telco to reveal your location. Services that you use such as banks and telcos are not allowed to disclose your information. For example, if someone requested your bank to disclose the location of the ATM you used to withdraw money, the bank cannot do so. Under Section 133(1) of the Financial Services Act 2013, the bank can’t disclose their customer's information or affairs to anyone. But there are exceptions. For example, if there is a court order or you are being investigated for a crime. In those situations, the bank is required to disclose your bank information to the police. Similarly, telcos and any other service providers are required to protect your data, under the Personal Data Protection Act 2010. If you plan to disappear overseas, make sure you’ve been paying your PTPTN and taxes. Because if not you’ll need to choose somewhere domestic, as you’ll be barred from flying overseas. Just don’t be too good at hiding, because you might face an unexpected problem. If you’re not found after 7 years, you can be declared dead. Not only will you be listed as dead in the national registry, but your assets can also be claimed by your family and debtors. [READ MORE: If your husband or wife mysteriously disappears, can you claim their insurance, EPF, etc? ] Just don’t be underage If you’re under 18, things are a bit different. According to a lawyer we consulted: Under Section 18 of the Child Act 2001, a police officer may take a child into temporary custody if they are satisfied on reasonable grounds that the child is in need of care and protection. When they do so, they must notify their parents or guardian. – Tanusha Sharma, lawyer. So if you’re still under 18, the police can detain you and notify your parents about it. Under Section 17 of the Child Act, it lists a few situations where the police can take the child under temporary custody. For example, if the child is found begging on the streets they can do so. But what happens after is usually decided on a case-by-case basis. For example, if you’re running away from an abusive home, you might be placed in a shelter instead of being returned to your family. So there is no clear-cut answer and it will depend on your situation. New name, new you You might decide to go with a new name, just so you can shed off your old identity. In fact, you can also double down and legally change your name. However, it’s not a 100% guarantee that you’ll get to change your name. The National Registry Department (NRD) will check if you have a good reason for doing so. Most of the time, people change their name because they converted to a different religion, or were born with an unfortunate name. These cases are generally allowed and are processed faster. So you’ll need to put in a convincing case to the NRD to change your name. [READ MORE: Here's JPN's guidelines to prevent people from giving weird names for their children ] [READ MORE: Can you choose not to have bin or binti on your MyKad? ] If you decide not to bother with doing it officially and instead get a fake IC, you might get into trouble. Getting a fake IC is an offence under Section 25(1)(e) of the National Registration Regulations and can get you jailed and fined for doing so. But there is one scenario where you can immediately get your identity changed: if you’re a witness for a serious crime that went to trial. Not many are aware of this, but under the Witness Protection Act 2009 witnesses and their family members will be given protection throughout a trial. Some of the protection includes being resettled in a new place, accommodation, a new job, some money to sustain yourself, and a new identity. What if you’re a criminal on the run? This is unlikely, but if you are a criminal on the run: please surrender peacefully at the closest police station. But seriously, if you are wanted by the police, chances are they are keeping tabs on you, even if you go overseas. “They can’t hunt you overseas but the police will still keep tabs on you. Once they locate which country you’re in, it depends whether that country is willing to return the criminal – technically fugitive – back to Malaysia. It would also depend on the extradition treaty the country has with Malaysia, as well as the crime committed. For example, Sirul who is convicted in the Altantunya murder case is still claiming asylum in Australia. This is because countries such as Australia won’t extradite the fugitive back to their home country if they are facing the death penalty.” – Tanusha. [READ MORE: What's extradition, and is it hard to bring a Malaysian criminal back from overseas? ] So if you do plan on disappearing, here’s the TL;DR: Be over 18, don’t be under 18, don’t be a criminal, and don’t be too good at hiding or you’ll be declared dead."
"4 tax reliefs you can get in Malaysia in 2021 Tax season is here—and as of 1st March 2021, you can already start filing your taxes. If you are someone who has to pay taxes, you would know that you can also get some exemptions or reliefs. In other words, after declaring your income, you can get a rebate if you spent on certain things such as medical expenses, education, travel and so on. While the categories or types of reliefs are usually the same, the government may announce more reliefs each year. This year, with Covid-19 around, they’ve announced some additional reliefs for the year of assessment of 2020. Here are some of them: 1. Personal + family tax reliefs Generally, each individual taxpayer will already get a rebate of RM9,000 after they declare their income. If you have any dependents on you such as parents or children, they will be included in this as well. This year, there’ll be a further reduction of 1% to this rebate– but this is only for the M40 group (those who have an annual income of RM50,000-RM70,000). For the B40 group, they can apply to their banks for their loan moratoriums to be frozen for a longer period of time. Besides that, if you’re a parent, you can also get reliefs for your children’s education. To start off, you can get RM2,000 off for every child aged 18 and under, whether or not they’re studying. But if they are studying, you get a rebate of RM8,000 for each child. There are also several medical tax reliefs you can get for yourself and your family, which we’ll be covering in the point below. 2. Medical tax reliefs Even if you already have medical insurance, it’s safe to say that further financial relief for medical expenses would be much appreciated. So first off, if you had a medical check up last year, you’re eligible to get an exemption of RM500. If your spouse or children have a serious condition that you had to pay for to treat, you can get RM6,000 off. As for parents, you can also get a relief of RM3,000 for them and an additional RM5,000 if you had spent on their check ups, medication and other treatment. However, just make sure your other siblings aren’t claiming for the same thing. If all the children had spent on their parents’ care, one child is advised to claim the relief and split it with the other children. 3. Property tax reliefs We recently wrote an article about the type of property taxes you can be made to pay in Malaysia. [READ MORE: 4 types of property tax you need to pay in Malaysia] Two of the taxes mentioned in that article—stamp duty and real property gain tax—will have some rebates this year. Stamp duty is what you pay when you sign any legal document while buying a new property. The more expensive your property is, the higher the stamp duty you’ll be paying. So this can be anywhere from a few thousand to millions of ringgit. But now, the government has decided to scrap the stamp duty specifically for any ownership transfer and loan agreements for homes bought between 1st June 2020-31st May 2021. However, there’s a limit to this—RM500,000 to be specific. So if anyone’s stamp duty costs more than that, they’ll need to pay the balance. Then there’s the real property gain tax, which is what home owners must pay when selling their homes. Basically, if you bought your house for RM500,000 and then later sell it for RM700,000, you’ll need to pay tax for the RM200,000 profit you made. So this won’t apply to you if you only made a loss from your sale. However, the government has also agreed to suspend this tax for any homes sold until 31st December 2021. There’s also a limit to this—3 homes per individual. So if you’re selling 4 homes this year, you’ll need to pay tax for the fourth home. 4. Other tax reliefs There are several other categories that we haven’t covered in detail such as disabilities, lifestyle, education, and so on. Briefly, here are some of them: RM6,000 for disabled individuals RM6,000 for supporting equipment for disabled individuals, or a disabled child, spouse or parent RM7,000 for individuals who take up a Bachelor’s degree in law, accounting, Islamic financing, technical, vocational, industrial, scientific or technology RM7,000 for individuals who do a Master’s or PhD in any field of study RM2,500 for purchase of personal computer, smartphone or tablet for self, spouse or child (not for business use) RM2,5000 for internet subscriptions RM1,000 for breastfeeding equipment such as pumps Like we said earlier, we’re not able to list all the reliefs you can get this year. But you can check out the full list on LHDN’s page here. We know the whole process of filing taxes can be quite...taxing. So we hope that this list will at least help you know what kind of rebates you can get. The deadline to file your taxes is 30th April 2021, so don’t wait too long to start. In the meantime, make sure you don’t make these mistakes: [READ MORE: 5 common Malaysian tax offences you don’t want to accidentally commit]"
"4 types of property tax you need to pay in Malaysia It’s that time of the year again: tax season. Those of us who are working will need to file our income taxes, but that’s not the only type of taxes some of us will need to pay. If you own a property, then there are a whole bunch of things you can get taxed for as well. Some of them will need to be declared during the usual tax season, and some of them will only need to be paid when necessary. Most of you already know this, but failing to pay tax when you’re taxable is an offence. So read up to know if there’s something more than the usual that you’ll need to declare this year! 1. Income tax from rentals Strictly speaking, this is not a property tax like the rest, but it does come from renting out a property you own. When declaring your income tax, you’re supposed to list down all your sources of income to see if you’re taxable. So this can cover a lot of things—your full time job, your side biz, and even money you get from renting out your property. Section 4 of the Income Tax Act 1967 says: Subject to this Act, the income upon which tax is chargeable under this Act is income in respect of— (d) rents, royalties or premiums; However, you won’t need to pay tax on your rentals IF you made a loss from it that year. For example, you charge your tenant RM1,000 rent per month, which would add up to RM12,000 a year. But let’s say that there was a massive wiring issue in the house that cost you RM15,000 to fix. Now, because you spent more on your house than you got from renting it, you wouldn’t have to declare the rental income because technically, you didn’t earn anything from it. But if something like this didn’t happen and you made a profit instead, you will have to declare your rental income. If you knowingly put down an inaccurate amount in the tax form, or avoid paying it altogether, the penalty is pretty hefty. According to Section 114 of the Income Tax Act 1967: you can be fined anywhere between RM1,000-RM20,000, be jailed for a maximum of three years, or both. You can also be made to pay three times the amount of tax which you failed to pay. 2. Quit rent and parcel rent Quit rent is also known as ‘cukai tanah’. This is the tax that your state government will charge you for owning a piece of land. Quit rent is charged per square meter or per square foot, so the bigger your land, the more quit rent you’ll be paying. There’s no fixed amount to this quit rent, because it can vary from year to year, and each state government can charge a different rate. When it’s time to pay this cukai tanah, you’ll get a bill with the rate you’re being charged per square meter/foot, and the full amount you need to pay. You must now be wondering what parcel rent is. So initially, strata properties such as apartments, condos and gated communities used to have a very different way of paying their quit rent. Instead of each homeowner paying the sum to the government individually, the management of the residence would first pay the quit rent, and then collect it from residents through their maintenance fees. But then in 2018, this system was abolished and the idea of parcel rent was born. Basically, homeowners will now just pay the tax for their own parcel (their own unit). 3. Assessment tax Cukai taksiran is a much more familiar term for this type of tax. This tax is collected by your Majlis Perbandaran. and the funds from it are used for the upkeep of your locality. So if you see your Majlis putting up new traffic lights, or giving the stadium in your neighbourhood a new coat of paint, they would be using the tax money that you paid them. Just like with quit rent/parcel rent, the tax rate can vary from year to year and differ between each Majlis. For both these taxes, it’ll be your local government that’s in the charge of enforcing the law if you don’t pay up. Sections 147 and 148 of the Local Government Act 1976 says that any unpaid tax will be counted as ‘arrears’ (outstanding balance). They can also ‘sita’ or seal your house if you keep failing to pay, but they’ll send you a notice way ahead of time so that you have a chance to settle your bill first. 4. Tax when you buy or sell a property We saved these for the last because unlike the rest, you won’t need to pay them yearly—they only apply when necessary. You’re also expected to pay these on your own, even if there’s already a developer or property agent who’s helping you buy/sell the property. Buying a property You’ll need to pay a stamp duty* when you buy a new house. This is basically a tax on important documents concerning your home, so it will cover a number of things: Sales and Purchase Agreement (main housing contract between you and the developer) Memorandum of Transfer (when the ownership of the house is transferred from the developer to you) other documents such as loan agreements between you and the bank The amount you’ll need to pay depends on the price of your property, so the higher the price, the higher the stamp duty. Like we said, your developer or property agent can’t help you with this part, so you should get a lawyer of your own, or take the services of one offered to you to handle it. Selling a property Selling a property also comes at an additional cost—the Real Property Gain Tax*. Previously, this only applied to properties that were sold within five years of being bought. But the most recent change to the law states that anyone who sells their property on the 6th year onwards will have to pay 5% of the profit from the sale. However, you won’t have to pay this tax if you made a loss. For example, if you bought your house for RM600K and sold it for the same price or less, you won’t be taxed. But if you sold if for RM700K, you can be taxed on that RM100K profit that you made. Now that you know all of this, you can be more prepared to file your taxes in a few weeks. Also, remember not to make these mistakes when filing them: [READ MORE: Here's 5 common tax filing mistakes made by Malaysian taxpayers]"
"Malaysians can now pay bail online using eJamin In most court cases, we assume that everything will be handled by the lawyer. That is true, but there’s one part that won’t be handled by the lawyer: bail. But the accused can’t pay the bail themselves either. To pay it, they’ll need to assign someone as a bailor, which will usually be a friend or family member. But it’s not as simple as withdrawing money and paying it to the court. We’ve written an article explaining the whole bail process before. But if you’re in a rush, here’s a simple version: The bailor gets a sheet with the case number and your name They’ll go to the court counter to post bail The bailor will be told to open a bank account. The court will give them a document to be handed over to the bank officer Go to the bank, open a bank account, and get the bank book Bring it back to the court counter, and a receipt will be issued for it You’re free on bail! It sounds simple but this can be time-consuming, and the bank and court might not be opened after office hours or on weekends. The MCO can also add another layer of difficulty, as there might be travel restrictions. [READ MORE: In Malaysia, you can pay bail to go home instead of going to jail. Here's how it works ] You can now do it online Luckily, you can now avoid the hassle by doing it online through eJamin. So instead of going back and forth from the court to the bank, you can just do it from your phone. You’ll still need the information on the case, which is the first step mentioned above. The service is also available 24/7, so you don’t have to wait for courts and banks to be open. You’ll still need to check if your court uses eJamin. Currently, there are 138 courts using it, and you can see the list here: Courts that use eJamin. If it’s listed, next go to eJamin’s website. As you can see, the interface is pretty simple, and you can fill in all of the necessary information on the front page itself. Once you’ve made the payment via FPX online banking, you’ll get a receipt in your email. This will be the receipt to show to the court officer. You won’t have to wait long for a refund either. Once the case is closed, the bail money will be refunded to the bailor’s bank account, usually within 1-2 hours. Court cases can be stressful, so this is one way to reduce it by just a little bit."
"A Msian court made a homebuyer pay RM30,000 compensation to the developer...but why? In the many property developer articles we’re written, you’ll read about some dispute between the homebuyer and the developer. Typically, the stories end with the developer being made to pay the buyer some sort of compensation because the buyer would have suffered some loss. But for a change, in this article, we’ll tell you the story of how a homebuyer had to pay the developer compensation instead—RM30,000 to be specific. Now, this didn’t mean that the developer was right and that the buyer was in the wrong. Rather, it had to do with where the buyer took the case to be heard when the dispute first arose. The house looked different from what was promised The story starts with a Singaporean man buying a RM1.6 million condo from the developer in 2013. Some time after the house was completed, the buyer realised that what he got didn’t match what he saw in the showroom. One example of this was the balcony—it was covered in the showroom but did not have a roof in the unit he received. He then filed a case in the Housing Tribunal. For those of you who’ve never heard of this before, we have a tribunal specifically for small claims involving developers and homebuyers. If you need more info on them and how they work, you can read about it here. So apart from the difference in the appearance of the house, the buyer also said that the developer had changed 25 out of the 26 pages in the Sales and Purchase Agreement without telling him. Basically, they made a whole lot of amendments to the main housing contract without telling him—it’s a pretty big deal, as you can imagine. After hearing this, the Housing Tribunal then ordered the developer to pay the buyer RM50,000 as compensation. At this point, it’s worth mentioning that all Housing Tribunal decisions are final, unless...you believe there’s something wrong in how they got to their decision. In other words, you’re not challenging their decision, but you’re questioning their: power to make that decision the method they used to make their decision If you want the decision to be relooked at because of these reasons, you can file what is known as a ‘judicial review’ in the High Court. And that’s exactly what the developer in this case did, because they clearly didn’t agree with the Tribunal’s decision. The developer lost the case twice before finally winning At the Johor High Court, the developer’s appeal of the decision was dismissed because they didn’t think there was anything wrong with the Housing Tribunal’s decision. The developer then appealed again to the second Highest Court, the Court of Appeal in December 2019. Again, this court also said that there was ‘no merit to the appeal’ and dismissed it. They also made the developer pay the buyer RM15,000 in costs for any legal expenses he had incurred. And then in 2020, the developers applied to appeal the case one last time to the highest court in Malaysia, the Federal Court. Whatever decision this court made would truly be final. The court allowed the case to be heard and set 10th February 2021 as the hearing date. As you’ve probably already guessed, unlike the two other courts, this court agreed with the developer. And you’re probably wondering why, since the developer didn’t even deliver a home that looked like the showroom, and they also breached their contract with the buyer. The Housing Tribunal can only decide on some things Like we said earlier, the developer filed a judicial review of the Housing Tribunal’s decision. So this wasn’t a matter of which party was wrong or right, it was whether the Housing Tribunal had the right to decide the way they did. A summary of the Federal Court’s decision is basically this: the Housing Tribunal can only hear matters that are expressly mentioned in the Sales and Purchase Agreement. The dispute the buyer brought to the tribunal was not covered by that agreement. So the tribunal had acted ultra vires (beyond the scope of its powers) when it decided on the case. Housing Tribunals cannot decide beyond their scope of power, or it would allow buyers to sue property developers for pretty much anything. This can put the developer at a disadvantage, and there wouldn’t be a balance between the rights of the developer and the homebuyer. the buyer had a period of vacant possession (as soon as you get the keys, you can go in and inspect your home for any damages) but apparently, he did not bring up any issues during that time. So while this case may seem like it’s taking away buyers’ rights, in reality it is not. The decision would ensure property developers also get sufficient protection under the law, and that buyers take their disputes to the right channels, under the set timeframes. [READ MORE: You now have more time to sue your developer in Msia for building defects. Here's why]"
"A Malaysian doctor claims he was fired...because he worked part-time elsewhere Whenever we write on employment cases, they usually involve employees who were wrongfully or unfairly dismissed by their companies. In many of those cases, the court will find that the employees were indeed terminated without a good reason and make the companies compensate them. We wrote on one such case that was widely-reported not too long ago. [READ MORE: A Malaysian employee was unfairly fired, so the company had to pay her RM1.13 million] But in this article, we’ll be looking at a case that’s pretty unique in its facts. The case concerned an employee who lost his job because he was part-timing elsewhere. He claimed he was fired, while the company said he resigned on his own. Interestingly, the employee lost the case because the court wasn’t convinced by his arguments. The doctor part-timed on the side In this case, the employee was working as a senior physiotherapist in the company, which was a private hospital. One day, someone from the company came across a Facebook photo in which the employee was tagged. The employee had attended the event of another company, and was seen to be representing that company at the event. An officer from the company then met with him to inquire about what was going on. The employee admitted that he had been working part-time with the other company. At this point, the officer informed him that they’ll have a meeting with him soon regarding this. 3 days later, they held the meeting with a few other key people in the department. However, we can’t really tell exactly what transpired in that meeting because... There were two sides to the story The two parties—the company and the employee—give different accounts of what happened, and this played a huge role in the court’s decision. Here’s a short summary of their differing accounts: The employee’s side of the story According to him, during the meeting: he was given two choices—resign or be terminated. They added that he would be escorted out of the office by auxiliary police if he didn’t cooperate he asked for leniency from the company but they ignored him and told him he’ll have a bad employment record he was made to sign an agreement acknowledging his misconduct, and he was not allowed to leave the room until he signed it he did not resign voluntarily, but says he was forced to because they didn’t give him a choice The company’s side of the story The company on the other hand said that: they did not give him such an ultimatum. In fact, they were very cordial and amicable in the meeting the employee was allowed to either stay with the company or leave and join the one he was part-timing at. But there was no mention of firing him they gave him some time to think about what to do and left him in the meeting room. When they came back to talk to him, he asked them how to tender his resignation they did not prevent him from leaving the meeting room as claimed by him So in essence, the employee says that he resigned because he was forced to, while the company says that he resigned on his own had already decided on doing that much earlier. The court wasn’t convinced by the doctor’s story In deciding dismissal cases (like the one we’re looking at) the court will decide two things: whether the employee even did something that warranted a dismissal and whether the employer was right in dismissing them. But this case was a bit different because the company claims that he wasn’t even dismissed— he resigned on his own. The court also looked at the witness’ testimonials. The company had brought two witnesses, while the employee only had himself as a witness. The court found it hard to believe the employee’s account mainly because no one else could corroborate the story, but also because there was proof he told the officer that he wanted to resign as soon as she brought up the event she saw on Facebook he was well aware of the consequences of his actions when he started working for a direct competitor of his company, This was considered to be a grave misconduct, and even if the company did want to dismiss him, it could be justified the employee made no effort to fight the dismissal—assuming it happened—and quietly left without protesting the accounts of the story by both the company’s witnesses matched Because of this, the court found in favour of the company and could not award the employee the compensation he wanted, which was getting his job back. Can your company stop you from working part-time elsewhere? The court looked at whether or not the employee was actually forced to resign when deciding the case. But you might also ask: Is part-timing while working a full-time job not allowed—and was the hospital even right in taking action against him for it? The answer is that it really boils down to your company policy. In this particular case, it was a part of the employee guidebook not to work for another company that was a direct competitor. If employees did have a second job elsewhere, they were supposed to inform the company about it. The employee here didn’t bring this up as an issue in court because he was aware of this policy. So while there is no fixed law that can allow or disallow part-time employments, you should notify your employer if you’re getting income elsewhere. This is mainly to protect the business and ensure you’re not sharing trade secrets and company information. If you don’t notify them, you could lose your full-time job and part-time job in no time at all."
"Here’s how some Taman Tun residents stopped a condo from being built on their park If you’ve been following the news closely, some weeks ago you would have read about the Taman Rimba Kiara case. This case has actually been going on for over 5 years, but on 27th January 2021, the Court of Appeal passed a landmark decision on it. If you haven’t heard about the case, here’s a shorty summary: Some developers wanted to build housing where a public park—Taman Rimba Kiara—is currently situated. A few residents around the area and some others who would have been affected by this development challenged them in court and won. But the case isn’t as simple as that. You can take a look at the 90-page judgment here to see why, but in this article we’ll simplify the sequence of events for you. The history of the park dates back to 1982 The park in question used to be a rubber plantation. However, in the 70s, the government bought over the land from its owners to develop it. And if you’re wondering whether they can do that, the answer is yes. [READ MORE: The Malaysian government CAN legally take your land and property...under 3 conditions] The land eventually became a public park, making it a home for various flora and fauna. It’s also called a ‘green lung’ (a ‘healthy’, natural place in an urban area). But one pertinent issue was that there was a group of people there who had lost their homes after the rubber trees were cut down. These were the families who used to work in those rubber plantations. To provide them with roofs over their heads, the government then gave them longhouses to live in. By this time, it was 1982. However, they were told that this was only temporary, and that they would eventually be getting proper housing soon. Cut to 2017, things were still the same. But this is where the developer comes into the picture. The developer wanted to build some high-rise luxury serviced apartments where park was situated. At the same time, they wanted to build some affordable housing for these families. We came across a video where the residents in this area were interviewed regarding the matter. Most of them were in support of the new development as it meant that they would get the housing they were promised. But apart from them, there were other residents in the neighbouring area that didn’t think the development was a good idea. These are just some of the reasons: the park was one of the last green lungs in KL. If the area was cleared, many species would lose their homes the development would add to the high pollutions levels in the city the development went against the relevant laws and rules the construction would cause the value of the area to decrease This is when they took the mayor of Kuala Lumpur, the developer of the project, and two other parties to court. The High Court allowed for the development to go on It’s important to note that the unhappy residents didn’t sue the mayor and developer. Instead, they wanted to cancel out the permission given by the city council to develop the area. They also believed that this permission was not obtained in the right away. To challenge a decision made by a public body such a city council is known as a ‘judicial review’. It’s different from a normal court case appeal. In judicial reviews, the court will see if the manner in which the case was previously decided was right. If it wasn’t, only then will they cancel out that decision and come up with another. In normal court case appeals, the focus will be on whether the previous decision was correct, not so much how on the decision was made. In this case, there were 10 parties (we’ll call them appellants) who filed a judicial review: they were the management bodies of 5 different residential buildings in that area: Trellises, Kiara Green, The Residence, TTDI Plaza and The Greens together with a public officer from the TTDI Residents’ Association and four other private residents who lived in these residential buildings. The review was filed against four parties (we’ll call them respondents): the mayor of Kuala Lumpur, Memang Perkasa Sdn. Bhd. (the developer), Yayasan Wilayah Persekutuan, and the Bukit Kiara Public Housing Residents’ Association (Pertubuhan Penduduk Perumahan Awam Bukit Kiara). Now the appellants weren’t just unhappy about a new development cropping up in their area. One main issue of contention was that the conditional planning permission development order given by the city council (DBKL) went again some important rules. When a new development is to be done, the mayor is supposed to put up a notice informing the public of it. The mayor in this case did exactly that, and that’s how the appellants came to know about it. So there was no issue as far as the notice was concerned, but the next step is where the problem started. When the appellants contested the development, the mayor was supposed to talk with them and address their concerns. Somewhere during this time, the mayor informed only 3 appellants (#1, #2 and #6) of what was going on, and proceeded with preparing for the development. But the seven others were still in the dark. When they all finally found out what was happening, they decided to challenge the permission to develop the area. However, the High Court found that there was no issue with the development order. In short, this is what they said: the developer, Memang Perkasa Sdn Bhd would incur huge loses if the project was scrapped the residents of the longhouses were waiting for their new homes for over 3 decades. Stopping the project means they wouldn’t be getting their homes the appellants, especially the first five, didn’t have locus standi (the right to bring a case to court) because they weren’t registered landowners. These 5 parties were management bodies of housing properties in the area The High Court set aside the appeal and the four respondents had to be paid RM10,000 each. But the appellants re-appealed, and this is when the case went to the Court of Appeal. The Court of Appeal didn’t agree with the High Court Again, seeing as this was a judicial review, the Court of Appeal couldn’t come up with a new decision just like that. They had to first see if the way in which the High Court decided the case was correct. So they addressed the same issues that were heard by The High Court, and they brought up some additional points. We’ll summarize these for you as well: the parties did have locus standi because under the Rules of Court 2012 Order 53 rule 2(4), a person can file for a judicial review if they’ve been “adversely affected by the decision of any public authority”. As they lived in the area, this development would indeed disrupt their lives the management bodies also had the right to file a judicial review because of Section 39(3) of the Strata Titles Act 1985 which allows them to take action on behalf of the residents in those properties the mayor has the duty to inform anyone affected by the development and he must act fairly by hearing out their arguments there was also an issue of a conflict of interest. The mayor was said to be on the Board of Directors of the Yayasan Wilayah Persekutuan. The High Court said that there was no issue here as the mayor wasn’t present at the Yayasan’s meetings and so he wasn’t really involved. The Court of Appeal, however, felt otherwise. They found that there was too close a relationship between the party applying for the development order and the party who granted it Based on these points, the Court of Appeal set aside the High Court’s decision and said that the development had to cease at once. This is a landmark case for many reasons After reading all this, you might think that this is a case of a developer being sued by some homeowners. And while that’s true, this is much more than that. This case is seen as a big win because it places more responsibility on public officials—in this case, the mayor. The judgment said: “The burden, in public law, would be on the Datuk Bandar to thus show how the process has been adhered to and not, the other way round. The absence of an express provision in any statute requiring the decision–maker to give reasons does not mean that the duty does not exist unless and until the statute specifically states so.” - YA Dato' Mary Lim Thiam Suan (one of the three judges who decided on the case) Basically, public officials must be accountable in their actions even if the law doesn’t specifically spell that out. If their job requires them to be transparent, they should do so. Many have also said that this case highlights the importance of the conservation of our natural environment. On another note, as this decision was made by the Court of Appeal, the four respondents can still file an appeal at the Federal Court. The decision made by that court will be final, if it ever gets to that stage. The appellants, however, have asked the respondents not to file an appeal, as it will take up too much public funds. Instead, they have requested them to come up with affordable landed housing for the longhouse residents."
"What happens when you turn up to work under the influence of drugs? THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs, and viewpoints expressed by the author do not necessarily reflect ASKLEGAL's position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article. by Harneshpal Karamjit Singh In a recent South African Arbitration Award of Rankeng/Signature Cosmetics and Fragrance (Pty) Ltd [2020] 10 BALR 1128 (CCMA) by N Mbileni dated 02.06.2020 concerned an employee reporting for duty under the influence of drugs and subsequently dismissed for it. The employee admitted to having smoked cannabis in the morning before leaving home for work. The Arbitrator found that the dismissal of the employee was too harsh and was not an appropriate sanction. The Company’s disciplinary code states that the Management should not allow its employees to remain on its premises if they are suspected to be under the influence of any drug. It further stated that whether an employee is fit to report for duty will be determined by the Management. The management allowed the employee to continued working and confined the said employee to a particular area. The only evidence against the employee was that the said employee’s eyes were red and watery. There was no evidence that showed an inability to perform tasks allocated. The best that can be said was that the employee was irresponsible to have taken a substance that may have the ability to impair his mental or physical abilities. The Arbitrator held that the employee be reinstated and that a final written warning be issued against the said employee. This recent South African Arbitration Award made us wonder… What would happen to Malaysian employees who turned up to work under the influence of drugs? In New Straits Times (M) Bhd lwn Rohaniza Ahmad Yusoff & Ors [1997] 3 ILR 231, the employees of the Company were arrested by the Police at the Company’s premises at 10 am on 05.08.1994. The employees were subsequently dismissed for substance abuse. The President of the Industrial Court stated that unlike other criminal cases, drug abuse is carried out without a criminal intention. The Company did not give the employees an opportunity, in the form of a warning, to improve their lifestyles / rehabilitate before and after their arrests. The President also relied on the evidence of the witness, Norida Ismail, a Drug Rehabilitation Office, where it was stated that the supervision on the employees had been completed and their respective conduct was satisfactory. The employees were remorseful for their actions and admitted to their drug abuse. Further, they were long-standing employees of the company and performed satisfactorily at work. The President held that as this was the employee's first offence, the employees ought to be given an opportunity and it was not reasonable to give the employees a heavy sentence in the form of dismissal. Accordingly, it was ordered that the employees be reinstated. But you always don’t get away with it… In Zulhilmi Fauzi v MISC Berhad [2014] 1 ILR 240, the employee was subjected to a drug test and the results came back as positive. The employee was issued a termination letter and accordingly dismissed. The employee contended that he had not used any drugs at the material time and the collection of the urine sample by the Company had not complied with its standard operating procedures. It was noted that the employee was fully aware of the company’s policies on drugs and signed the Declaration of Acceptance to the terms and conditions of the employment. The recommended disciplinary action for unlawful use of prohibited drugs (a major act of misconduct) is dismissal. The employee did not dispute the results or the non-sealing of the urine sample. It was also clear that there was no breach of the procedure in the collection of the urine samples. The President held that the employee indeed breached the Company’s policies on drugs and on that reason alone, the decision to dismiss the employee was justified. Similarly, in Engku Hafizuddin Engku Husain v Maswings Sdn Bhd [2016] 4 ILR 379, the employee, a co-Pilot underwent a random urine screening test during the Drug Free Workplace Programmes (“DFWP”) screening and was tested positive for morphine. He was asked to submit an explanation but his explanation was not accepted by the company and he was subsequently dismissed. The employee contended that he had never used drugs and that the Company acted mala fide and arbitrarily by failing to send him for further medical tests. It was ruled that the claimant had consented to the screening test and admitted to signing the company’s Alcohol and Drug Use Policy Form and was well-aware that codeine and morphine were prohibited drugs. The employee never disputed or challenged the results of the screen test or the procedure that had been taken in testing the urine sample. Accordingly, there was no reason for the company to conduct a further medical examination on the employee. Similarly, the company’s rules or policies and the DFWP did not specify on any further tests. The provisions of the DFWP were clear that if the employee tested positive, then the said employee would be subjected to disciplinary action which includes dismissal. The Company was committed in eliminating drug abuse among its employees as the safety of its passengers and employees were of prime importance especially since its reputation as the national carrier had to be maintained and safeguarded at all times. Pilots and Co-Pilots must maintain diligent focus and concentration in performing their job effectively, accurately and responsibly, as lives of everyone on board depends on it. If they are under the influence of prohibited substances during the flight, it would put at risk the lives of innocent people on board the aircraft. The employee testing positive for morphine ran contrary to the trust and confidence reposed in him by the company. Accordingly, his dismissal was justified. Company’s policies will be upheld unless the Company fails to follow them In Sebastian Santiago Dan Seorang Perayu Lain v Malaysia Airport Holdings Berhad [2018] 2 LNS 0322, the Company made an arrangement with the National Anti-Drugs Agency to conduct a urine screening test programme at its premises to determine whether its employees have been taking drugs. The employees gave their urine sample. It was sent to the Pathology Department of Hospital Pulau Pinang and results of the sample confirmed it contained cannabis. The employees were dismissed subsequently. The President ruled that the tests conducted could not be relied on as there were no evidence to suggest that the samples were ever taken as it was never produced in Court. Further, there was no indication on the number of samples submitted for each of the Claimant (the Company’s procedure required two samples to be taken) as well as details of the samples that were handed over. The President added that these mere not mere technicalities but a fundamental right that should be accorded to an employee facing a disciplinary charge. Any disciplinary action must not only be fair but must display all the characteristics of fairness. It was clear that the employees were denied their rights to have their initial samples confirmed through a subsequent sample. Accordingly, it was ordered that the employees be reinstated. The Industrial Court have at most given precedence to the Company’s policies on drug abuse. Rarely has the Court exercise proportionality and discretion when coming to a decision whether the dismissal of the employee has been justified. It could get much worse… If an employee has been tested positive, he is likely to be charged under Section 15 of the Dangerous Drug Act 1952 and could be convicted to a fine up to RM5,000.00 and imprisonment up to 2 years. Section 15(1) states as follows: “Any person who- (a) consumes, administers to himself or suffers any other person, contrary to section 14 to administer to him any dangerous drug specified in Parts III and IV of the First Schedule; or (b) is found in any premises kept or used for any of the purposes specified in section 13 in order that any such dangerous drug may be administered to or smoked or otherwise consumed by him, shall be guilty of an offence against this Act and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years.” Naturally, an employee that has been dismissed and convicted would be facing a tough time seeking employment elsewhere. Working under the influence of drugs will massively impact one’s professional career and reputation especially if one works in a tight-knit profession such as the medical and legal industry. Harneshpal Karamjit Singh is the Co-Managing Partner at Lui & Bhullar. He can be contacted at harnesh@luibhullar.com"
"5 things Malaysian offices forget to protect themselves from...until it's too late When you think of how companies need to protect employees, the first thing that might cross your mind is companies providing medical benefits, annual leave, overtime and so on. While that is true, those aren’t actually the only ways companies can take care of employees. In fact, besides those benefits, another very important thing employees need is a safe and secure working environment. Because when we had a chat with our friends (read: sponsor) at Allianz about their Smart Retail Shield, we had to rethink what insurance is for. In terms of company insurance, people tend to think it just means a health plan. But there’s usually one forgotten employee, who is the hardest working, longest lasting, permanent employee: the office itself. But not getting an insurance plan isn’t the only way your office can be left unprotected. As we’ll see in this article, here are some ways employers tend to forget when protecting their star employee, and what you can do about it. 1. Protecting the office from fires You may not know this, but fires happen a lot more frequently than we think. On average, 6,000 premises are destroyed by fire every year, and 60% of it involves offices, factories and shophouses. So to minimise the risk of this happening, there are some laws and practices companies must follow. For starters, buildings MUST have a fire certificate. Section 28 of the Fire Services Act 1988 says: Every designated premises shall require a fire certificate ‘Designated premises’ are places that are mainly for public usage—office buildings are an example of this. These fire certificates will prove that the building doesn’t have hazards (such as wrongly fitted grilles), or if a fire breaks out, that the risk will be minimal. These certificates need to be renewed every year and failing to have them is an offence. If you haven’t seen one yet, this is what a fire certificate looks like: Bomba has the instructions on how to apply for one on their website here. But in general, what you’d have to do is to send an application to your district’s bomba headquarters, and include documents such as your floor plans and land title deed. You can do the due diligence yourself, but getting a fire certification from bomba might be the most important thing. Because as we found out, a lot of buildings in Malaysia do not have proper fire certification. In 2016, an inquiry into the deadly blaze at Johor’s Sultanah Aminah hospital, found that it had been operating without a fire certificate for years. Even when you’ve certified your building is safe, AND with proper fire safeguards in place, it might not be enough. But it’s not because of arson or sabotage. According to bomba, in 2016 alone 96% of all reported fires in Malaysia were accidental. But besides fires, there are other things that can be completely out of our hands, because... 2. Floods can happen at new places Besides fires, there’s also the possibility of floods happening. Floods are actually the number one natural disaster in Malaysia. In fact, statistics say that 9% of land in Malaysia is prone to floods. You might remember the 2015 Kelantan floods that affected nearly 160,000 people, with losses worth RM200 million. In the aftermath, 13,337 SMEs were also affected by the flood. Even if you think your office is in a relatively safe area, there’s a chance you might still be affected by floods. Recently, Kuala Lumpur was hit by one of the worse floods which turned Masjid Jamek into Pulau Jamek. Normally, flash floods can be expected when the rainfall is more than 60mm per hour. And according to DBKL, normally it does not go more than that. However, the rainfall on 10 September was more than 3 times the expected amount, hitting between 100-200mm per hour. But some local traders affected by the flood don’t think that heavy rainfall is the only cause. A goldsmith who ran his business there for 27 years claimed that the situation got worse within the past 10 years. Some of his heavy equipment was damaged, and he had to send it to Johor to be fixed at a cost of RM7,000 per machine. “The authorities cannot blame only the heavy rains as this did not happen in the past, ” – A. Gunasegaran, as quoted by The Star Even if you think you’re in a safe area, things might not be the same in just 10 years. Unlike fires, you can’t get your place ‘flood certified’. So the only solution against the unexpected is to minimise losses by insuring your premises. 3. Office security to prevent theft and burglary If you work in an office, your office would naturally have safety measures, such as doors with locks, maybe even an alarm system as well as CCTVs. To most people, you might feel that this is enough to prevent thefts and burglaries from happening. However, there’s a reason for this saying “A lock only keeps honest people out.” If someone really wants to break in, they will find a way. We found this out the hard way, when our office (jointly shared with Cilisos) was broken into some time ago. We had an alarm system, electronic locks, as well as CCTVs, but the criminals still managed to find a way in. In fact, the criminals were also captured on our CCTVs, but the fact that it was there didn’t stop them at all. Thankfully, there wasn’t anything valuable in the office at the time, so the only thing we lost was our sense of security (and a broken padlock). If you were unlucky enough to be robbed but had insurance, you might feel consoled because at least you’ll be compensated for your losses. But here’s the thing: a company’s insurance will only cover the company’s assets. This means that in case of a robbery, any employee belongings that was stolen will not be reimbursed. So as best practice, it’s best that companies remind their employees to not leave behind any expensive valuables in the office, such as laptops or mobile phones. 4. Providing a hazard-free working place Having a safe environment isn’t just recommended, but it’s actually a legal requirement. Under the Occupational Safety and Health Act 1994 (OSHA), certain sectors such as the construction and manufacturing services are expected to have a safety policy in the office. Section 16 says: “Except in such cases as may be prescribed, it shall be the duty of every employer and every self-employed person to prepare… and revise a written statement of his general policy with respect to the safety and health at work of his employees and the organization… While this law may specifically apply to some sectors only, employers of other fields still do have a duty to keep the working environment safe. Under the law of negligence, employers have a duty of care towards employees. So if something unfortunate happens in the office and it’s because the employer didn’t take sufficient precautions, the employee may be able to sue them for negligence. But this goes both ways. Under Section 24 of OSHA, employees are equally responsible in following the safety guidelines. There are a few requirements in this section, but in general an employee is expected to: take reasonable care of their health and safety at work to cooperate with their employer in safety matters to not be naked (wear all your safety and protective equipment) comply with the safety laws [READ MORE: Are Malaysian employers responsible for your safety in the workplace?] It takes two hands to clap. So if you’ve done your best to be safe but your employer refuses to do so, you can actually file a complaint with the Ministry of Human Resources on their online complaint portal. 5. Not having an insurance plan for the office So this is another way that companies might sometimes forget to protect the office and its employees. It’s common to hear of people having medical or car insurance, but did you know that companies should also insure their business and office premises. For example, we looked at some statistics by Bank Negara Malaysia and found out that up to 84% of SMEs in Malaysia don’t have any coverage from natural disasters. While there are laws in place and measures that can be taken, some untoward incidents just can’t be avoided. And so the best thing is to have an insurance policy that can cover these risks. Now it can be a hassle for companies to look for insurance policies for every single thing pertaining to the business. So here’s the good news: Allianz now has a plan known as Smart Retail Shield. They offer coverage for a whole lot of things, but these are just some of them: fire floods burglary machinery/equipment breakdown group personal compensation for accidents all business risks So it’s not just for things like floods and fires or safeguarding assets, but basically anything that your business needs for it to be running. So let’s say that you have a plush toy business...the last thing that you’d want is for your products to perish in the fire. But if it did happen, you can feel secure knowing that you can get compensated for your losses. And in case you need to close your shop temporarily for extensive repairs due to a fire or any of the insured perils, Allianz has you covered too. If you opt in for their Inconvenience Relief Benefit, you can get a daily income of up to RM2,000 per day, for up to 180 days. It’s meant to cover reasonably big losses, so to qualify two things need to happen: The damage or loss is worth more than 15% of the building sum insured You can’t use the premise for more than 3 days due to the accident The best part is that it’s customisable, so you just need to select the types of coverage that you want based on the assets that you want to protect. If you need more information or would like to speak to an agent, you can check out the Smart Retail Shield page."
"Can condo managements in Malaysia force residents to take a Covid-19 test? Just recently, there were several news headlines on condos that were making it compulsory for residents to take a Covid-19 test. If the residents failed to produce the test results, they would be denied entry. There were also several condos that specifically wanted residents who were foreigners to take the test. Many netizens—even those who don’t live in condos—were confused as to how the whole thing would actually work. We came across many of these comments on Facebook: But people also weren’t sure if condos actually had the legal right to deny a tenant entry into his own home if he didn’t take a Covid-19 swab test. It’s not a national policy Senior Minister for Security, Datuk Seri Ismail Sabri said there wasn’t any policy for this on a national level that could allow all condos nationwide to follow this practice. This means that this requirement was not on the same level as other policies, such as those that make mask-wearing mandatory and restricting travel to 10km only. He later amended his statement and said that this requirement could apply to foreigners, but not to locals. However, he also said that condo managements can come up with their own rules for residents. “Closed housing, condominium or apartment areas are private areas where the management can make their own rules for their areas...” - Datuk Seri Ismail Sabri He also mentioned that condo managements can prevent visitors from coming into the area. But coming back to the swab tests, if there isn’t a policy on it, can it actually be mandatory? Strata laws don’t give managements this right Condos and apartments, which are strata properties, fall under the Strata Management Act 2013. That Act generally explains how the property should be cared for and maintained by the residents and the management. This is also the Act that gives the management its powers to come up with their own rules (more on this later). But according to lawyers, while this Act does give the management the right to make rules, it doesn’t cover the right to make Covid-19 testing mandatory. “So if you are talking about a by-law under the Act, I don’t think it can be done to deal with Covid-19-related matters. That would have to come from another law because the SMA 2013 is too specific of an Act to deal with anything other than what it was created for. “Requiring people to take a swab test to enter their apartment does not fall under this as it is not related to property maintenance,” - Lawyer Fahri Azzat, as quoted by the Malay Mail So if the SMA 2013 which governs strata property matters also doesn’t allow for it, where else can condo managements get the right to make testing mandatory? Can condo managements make their own laws? Besides the SMA 2013, another set of rules that can run concurrently with them are the by-laws (smaller laws) enacted by condo managements. Each condo management would have their own by-laws that would suit the condo residents best. These laws can cover, for example, the right for them to clamp your car if you blocked another car, or to bar your access card if you didn’t pay your maintenance fee. But managements can’t just enact their own laws as and when they wish. If you don’t already know this, a condo management, which is also known as a Joint Management Body (JMB) or Management Corporation (MC) must involve the residents in their decision-making. For this reason, AGMs are supposed to be held to discuss important issues faced by the parties. In coming to decision, a vote must be held, and the option with the majority vote has to be followed. It’s actually a legal requirement under the SMA 2013 to have this AGM, and managements that fail to do so can be penalized. However, due to Covid-19, managements are allowed to not have any meetings until its safe to do so. Basically what this means is, condos could use their powers to enact by-laws and make Covid-19 testing mandatory for residents. But as there are no AGMs being held at this point, they wouldn’t have gotten the permission of the majority of residents to pass such a rule. But one way that they might make this ‘legal’ is if everyone unofficially agreed to such a rule through a ballot or some other means. Condo managements can get sued Now just because they might be able to pass such a rule, this doesn’t mean that condos can discriminate and target certain groups of people to get tested—especially if there’s no proper justification for it. Condo managements that single out these people or even impose rules that the majority of the residents aren’t okay with can end up getting sued. If you’re in such a situation and your condo management isn’t coming up with an alternative solution, try reaching out to a lawyer to see what avenue would be best for your case. [READ MORE: 5 things Malaysian condo owners can sue their management for]"
"Neighbourhoods can legally block public roads in their taman. This lawsuit explains why Guarded neighbourhood schemes – the ones with security guards, boom gates and barricades – is commonplace in Malaysia. For both residents or visitors, there might be a slight inconvenience as the guards would check your identification before letting you in. But this is a trade-off most would accept: a minor inconvenience in exchange for added security. However, not all would view it the same. Recently, a lawyer in Bangsar Park who found the barricades a nuisance, sued a Resident Association over it. His main argument: there are no laws or Acts of Parliaments that allows a guarded neighbourhood to be set up. And he is right: there aren’t any laws that explicitly mention it. In case this sounds familiar, there was a similar-ish case in 2017 regarding boom gates. But it only questioned whether boom gates were a nuisance or inconvenience. This case questioned whether the whole thing is legal in the first place. [READ MORE: The lawsuit that made neighbourhood boom gates legal in Malaysia] There are no laws allowing a guarded neighbourhood... For you lawyers out there: the full case judgement. First, a brief overview of the case. The lawyer owned a house in Bangsar Park, which he rented to a tenant. The house wasn’t part of the guarded neighbourhood scheme set up by the resident association. However, it was right on the edge of it, and the back lane was barricaded as part of the setup. If they wanted to access it, they claimed that they needed to drive out to the main road, and then go through the guard house. There, they would need to show their identification and give personal details before being allowed in. Because of this, they couldn’t enjoy their private property as it was obstructed. Not only that, they would have to give their personal information to the guards, which violated their right to protect their personal data. They weren’t the only ones affected, as they claimed the barriers also denied the other residents unimpeded access in the area. The barricades had been set up so there was only one access point in and out of the area, which is at the guard house. This caused traffic jams, illegal parking along the side roads, as well as air and noise pollution which lowered the property value. They also said that the obstructions were dangerous, as police or fire trucks might be blocked when there’s an emergency. This would cause “death traps” in the area. As the landlord, the lawyer owed a duty of care to his tenant. So he sued the Residents Association (RA) on these points: There are no laws on guarded neighbourhoods – The approval given to the RA by DBKL is against the law, because there are no laws made by parliament that allow private bodies (such as a resident association) to restrict movement. It’s a nuisance – The RA has caused private nuisance to his tenant, and public nuisance to the other residents. It’s against privacy – His rights to protect his personal data is violated, which is against the Personal Data and Protection Act 2010 (PDPA) ...or are there? The first point addressed by the judge: Are guarded neighbourhoods actually legal? It’s technically true that there are no laws or Acts allowing it. However, it’s legal for your local council to approve it, which in this case, is DBKL. Under something called Lampiran GN which is issued by the Ministry of Housing and Local Government, local councils are given legal powers to approve of guarded neighbourhoods. There are also a few Acts that when read together, grant local authorities the right to do things which are necessary to improve public health, safety and convenience. The Acts mentioned by the judge were: Section 133 of the Street, Drainage and Building Act 1974 Section 101 (v) of the Local Government Act 1976 Section 3 of the City of Kuala Lumpur Act 1971 Section 13(1) of the Federal Capital Act 1960 So just because there are no big laws that say it’s legal, that doesn’t make it illegal. There might just be smaller laws that work together which makes it legal. Verdict: the judge ruled that the approval given by DBKL to the guarded neighbourhood is lawful. Is it actually a nuisance, or just an inconvenience? Next point: whether the RA committed torts of nuisance, both public and private. To know what a tort is (no, it’s not a pastry), you can read it below. A simplified version of it is: tort is a civil wrong that causes harm or loss to someone else, which the other person can sue for. [READ MORE: What is tort?] Nuisance is one type of tort, and can be divided into public and private nuisance. A simple version of it is: Private nuisance: You’re interfering with someone’s right to enjoy their land or property. Public nuisance: You’re inconveniencing someone in public. Private nuisance In cases of private nuisance, there are a few things to consider. For this case, it basically boils down to: was the guarded neighbourhood setup stopping the lawyer and the tenant from accessing their property? Was it obstructing them or just inconveniencing them? To determine this, the judge went in person to view the house. Having visited it, she commented that: “Having assessed the site, I am of the view that the Plaintiff can also access the back lane by going through the Property from the front or going through the guard house to the back lane which is a few meters away.” – Dato’ Rozana Ali Yusoff, High Court judge. Basically, they could have accessed the back lane through their own house. Or, they could walk through the guard house, which is only a few meters away. She also commented that there needs to be a balance between personal inconvenience, and the communities’ interest. “In my view, living in this robust society, where safety and security are the prime concern that one has to balance between individuals’ inconvenience against the communities’ interest so long as such interference did not go beyond discomfort or inconvenience that it exceed ‘all reasonable limits’. If not, every little discomfort or inconvenience will be brought on to the category of actionable nuisance.” – Dato’ Rozana. Verdict: There is no private nuisance caused by the resident association. Public nuisance The procedure for a case of public nuisance can be tricky. The simple version of why it’s tricky is because public nuisance is actually a crime, and is dealt with by the Attorney General (basically our country’s lawyer). But in certain cases, you can sue someone for public nuisance, IF you have suffered more than the general public. In this case, the judge decided that the Residents Association did not commit public nuisance. The lawyer and his tenant did not suffer more than the general public. She stated that: They were not prevented from entering or leaving their property. They weren’t stopped from entering or leaving the back lane either. They had to go through the guard house, the same as other residents There was no evidence that the barricades and boom gates have caused a death trap. It would have been addressed by DBKL before giving approval There was no evidence that property has been devalued due to pollution, traffic or illegal parking Illegal parking would have happened with or without the barricades The guarded neighbourhood received consent from 80% of the residence, a requirement before being implemented Verdict: There is no public nuisance caused by the resident association. As for asking for asking identification, it did not breach the PDPA, as it was necessary for preventing or detecting a crime in the guidelines. It had also been discontinued by the Resident Association since 2017. In the end, the resident association won – the case was dismissed with costs. Edit: The lawyers had filed an appeal on the same day the judgement was delivered. We’ll update this article for any new developments on the case. Don’t be scared to ask for help Knowing the case now, some of you might wonder: “If he could access his back lane through his house, why did the court accept this case? Shouldn’t it be thrown out?” Turns out, something like this can still be brought to court. However, that wasn’t the only issue, as it was included with the issue of its legality. “Well, it was a triable issue. That is not something that can be resolved on affidavit. He did not sue for that per se; it was packaged with his other complaints. However, we showed that that allegation of his was baseless.” – Fahri Azzat, lawyer representing Bangsar Park Residents Association. Cases like this can also be scary if you’re part of a resident association. As mentioned before, there are no specific laws or Acts created by parliament on setting up a guarded neighbourhood. Court cases can also be costly, which might cause some to cave in to the demands without even going to court. So when you’re in a tough spot legally, whether you’re a resident association or just an everyday person, the best advice is always: ask a lawyer. “Firstly, they must seek legal advice. There is no way around it. Secondly, they need to be represented and not defend the case themselves. The Defendants in this case did not have a lot of funds despite their residents living in Bangsar. They had a lot of difficulty raising funds to pay us. We did not charge our full rate for the case either because of their situation and the issues were interesting enough to me personally. The point is seek help even if you don't have the means - ask about. There will be someone who may able to help. The worse thing to do is defend it yourself, or keep quiet and hope it will go away. One of the Plaintiff's is a well-known medical litigation lawyer; and his counsel is a very senior and respected counsel. So they are a formidable team on their own. To go up against them without legal support is not an advisable thing to do.” – Fahri. Even if you feel that there is no hope, and all roads are barricaded, ask around. There might be someone who’ll raise their arm to represent you, as we can see in this case."
"5 important changes to Malaysian employment laws that you need to know If you’ve read our employment law articles before, you would have seen us mention two sets of laws very often: the Employment Act 1955 and the Industrial Relations Act 1967. While they both cover employment issues, each serves different purposes. The Employment Act does cover the basics of employer-employee obligations, but it doesn’t actually cover all employees in Malaysia—it’s specifically for employees in West Malaysia and Labuan who earn RM2,000 and below. On the other hand, The Industrial Relations Act tells you what to do if you ever have a dispute with your company. The Industrial Act recently had some key changes made to it. It’s good to take note of them, just in case you have the need to take your boss to Court someday. 1. Cases can be immediately heard by the Court So you may have thought that all this while, all cases filed in the Industrial Court will automatically be heard...but that wasn’t the case. After the case is filed, there’s usually a reconciliation/negotiation process that takes place between the parties. At this stage, the parties are encouraged to settle the issue between themselves first. But if they can’t come to a compromise, the case is brought up to the Minister of Human Resources. And if he feels that this case can only be solved by the Court, only then will he refer it to the Court. With this amended Act, cases won’t need to go through the Minister anymore. Instead, the Director General will be vetting the claims. If the case cannot be solved at the negotiation stage, then he MUST automatically send them to the Industrial Court. 2. You can now be represented in court by another person Previously, if you were a party to the case, you had to show up in Court and represent yourself. Or if you belonged to a trade union, you could have someone from there to represent you. But these were the only two ways you could fight for your case, and you couldn’t have a lawyer represent you. After the amendments, you’re still not allowed to bring a lawyer to court. However, you can now have others represent you to fight your case better. So this could be someone from your company, or even someone who could help you compile evidence better (or someone who could speak better)—just not a lawyer. 3. The case can still go on even if the claimant dies If the claimant (the person asking for compensation) dies, it would make sense to say that the case would be thrown out, since the person can no longer receive compensation. In Industrial Court cases, there are two ways a party may be compensated: getting their job back getting damages (monetary compensation) It would be impossible for a person who’s passed on to get their job, back of course. But when it comes to monetary damages, it can be given to their next of kin. One of the amendments to the Act does exactly that. So if a claimant passes away before he is given compensation, that money will be passed on to his family, or anyone else he/she is survived by. 4. Appealing the Court’s decision will now be easier Usually, Industrial Court decisions are final and cannot be appealed. If you’re really unhappy with the decision, though, you can file for a judicial review in the High Court. But...a judicial review doesn’t guarantee a totally new decision. Instead, the High Court will first look at whether the Industrial Court had the right to decide the way they did. If they find that they acted outside the scope of their powers, only then can the High Court try and decide the case differently. Filing for a judicial review can also be a lengthy process, and because of that, parties may choose not to go for it. The amendment, however, makes it easier for parties to obtain this review. Now, parties are asked to file for a review within 14 days of getting the Industrial Court decision. This way, there’s a chance that their case will be heard quicker. 5. The penalties will be heavier Not all penalties in this Act have been increased, but two noteworthy ones would be to do with illegal striking: A person who supported an illegal strike used to be fined RM500. This has now been increased to RM5,000. A person who who started an illegal strike used to be fined RM1,000 and be jailed for a maximum of 1 year. This has now been increased to a fine of RM5,000 and a maximum jail term of 5 years. [READ MORE: 5 things Malaysian workers need to know before striking against their company] Besides these, one big increase in penalties is for not complying with a Court decision. For example, your company is asked to pay you compensation, but they ignore that order. In cases like this, the penalty is now RM50,000, a huge leap from what used to be RM2,000. Besides this Act, there were other laws that had amendments made to them, taking effect on 1st January 2021. We wrote an article on this, which you can read below: [READ MORE: 5 new Malaysian laws that will start in 2021]"
"Kedah cancelled their Thaipusam holiday. Can state govt's cancel other holidays too? We Malaysians love our public holidays. When Malaysia plays sports at an international level, one reason we want them to win is because a win can mean a public holiday. But recently, Kedah made the headlines when the state government announced that the Thaipusam holiday would be cancelled this year. According to the state government, since there will be no celebration this year due to the MCO, there will also not be a holiday. Though that made us think: you can do that? You can cancel a holiday? As we found out, yes, Kedah can do that because…. Thaipusam is not a public holiday in Kedah Thaipusam is not a public holiday in Kedah, but an event holiday (cuti peristiwa). Instead of being gazetted like other public holidays, the holiday is “renewed” every year through a state exco meeting. So in their case, they did not cancel it, but decided not to “renew” it. Thaipusam holiday is also quite a recent thing in Kedah, which was given since 2017. This is different from a public holiday, which is provided under the law. For Peninsular Malaysia, this is under the Holidays Act 1951. As for Sabah and Sarawak, it is provided by their respective Holiday Ordinances. The federal government has gazetted 12 holidays which are observed nationally: Chinese New Year Labour Day Hari Raya Aidilfitri Wesak Day Agong’s birthday Hari Raya Haji Awal Muharram National Day (31 August) Malaysia Day (16 September) Maulidur Rasul Deepavali Christmas You can’t cancel public holidays Besides national public holidays, there are also state holidays which will be observed in the state. For example, Thaipusam is a public holiday in 5 states and two Federal Territories (Putrajaya and Kuala Lumpur). Those of you who celebrate New Year’s Day might also think that it’s a national public holiday. However, it’s only observed in 8 states and all 3 FT’s. Unlike event holidays, these holidays can’t be cancelled, as they have been gazetted by law. So unless it’s a public holiday, state governments can “cancel” event holidays, so to speak. But surprisingly, under the Act as well as the Ordinances, we found out that ministers can exclude public offices and departments from taking a public holiday. Kedah might get an extra holiday on Deepavali The Kedah Chief Minister, Sanusi Md Nor, drew flak from MIC for cancelling Thaipusam. MTUC (Malaysian Trade Union Congress) has also urged Kedah to reinstate the holiday, so devotees will not have to take leave to fulfill their vows and prayers. However, Sanusi’s special officer for Indian Affairs, B.K. Kumaresan, explained that, “a public event must be held to qualify for the holiday, even though people will be praying at home.” He did give some hope by saying that they could use the holiday for other festivals, such as adding an extra day for Deepavali. So despite the disappointment of the Thaipusam holiday being cancelled, hopefully this promise can brighten the Kedah people’s day."
"In Malaysia, can you claim overtime when working from home? With Covid-19 being around for a year now, working from home has become the norm and culture for many companies. While it’s a different experience from working in the office, employees are still expected to work just as hard. This means that they should still get the same benefits as before, unless the company really can’t afford it. While overtime pay can be seen a benefit, it’s also something that you’re entitled to, especially if you’ve been working way more than you’re required to. For those whose work hours aren’t definite, overtime may be a bit of a grey-area for you (it doesn’t mean that you can be made to work 20 hours a day, of course). But there are also companies that have implemented online clock-in and clock-out systems for their employees. So in cases like this, if an employee was to clock in a few extra hours everyday while working from home, can they still claim overtime? Know your company policy Covid-19 aside, your company would already have a policy for overtime. This should already be in your employment contract. If it’s not already stated in black and white, the best thing to do would be to check with HR. Now if your company has not expressly said that there’s a new overtime policy due to MCO/WFH, then it can be assumed that the existing one is still in place. So for example, if your work hours are 9am-5pm, even if you’re working from home, you should be paid overtime if you work beyond those hours. If you didn’t already know this, employers who don’t pay their staff for overtime when they’re supposed to, can be penalized. Section 60(3) of the Employment Act 1955 says: For any overtime work carried out in excess of the normal hours of work, the employee shall be paid at a rate not less than one and half times his hourly rate of pay irrespective of the basis on which his rate of pay is fixed Section 100 of the same Act goes on to say: (2) Any employer who fails to pay to any of his employees any overtime wages as provided under this Act or any subsidiary legislation made thereunder commits an offence, and shall also, on conviction, be ordered by the court before which he is convicted to pay to the employee concerned the overtime wages... However, the Employment Act only applies to Peninsula Malaysia and the Federal Territory of Labuan, and to those whose salary is RM2,000 and below. So if you aren’t covered by this Act, you’ll need to go by what your employment contract says instead. Companies can limit overtime during Covid-19 So overtime pay is something employees should be getting if they’ve worked for it. But there’s one way employers can take that away...legally. To prevent more people from losing their jobs due to this pandemic, in March 2020, the Human Resources Ministry gave some suggestions on how companies can minimise their losses instead of having to lay off their staff. Some of them are: cutting employees’ salaries or temporarily laying them off and then rehiring them when things are better reducing the employee’s working hours not hiring new employees limiting overtime It’s important to note that the suggestion/guideline does say ‘limit’ overtime and not remove overtime completely. So let’s say you’ve worked an extra 10 hours the whole week, but your company might only allow you to claim for 5 of those hours. Going by the suggestions above, your company is allowed to do this. But this little leeway doesn’t mean that companies can abuse it and make their employees work around the clock. As mentioned earlier, the idea of allowing companies to limit overtime is so that they aren’t forced to terminate employees due to financial constraints. But if they’re still well within their means to pay, they should do so. If your boss has been making you work all day, everyday, bring this up to HR as soon as you can. But if you’re not getting much help from them, you should file a case in the Industrial Court. You just might have a case of constructive dismissal, which is what happens when your employer creates a really hostile work environment, that you might be forced to leave. [READ MORE: Here's how Malaysian employers might break the law during the COVID-19 outbreak]"
"Property agent asking for booking fee? It's actually ILLEGAL in Malaysia. *Note: The laws mentioned in this article do not apply in Sabah & Sarawak. Article originally posted on January 2021. If you’re buying a new house from a developer, you’ll probably believe these two things: If your house is delivered late, you can get a late delivery payment from these slow developers (grr). You just need to check what’s the promised date on your Sale and Purchase Agreement (SPA), calculate how late they are, and get your proper compensation. Paying a booking fee for your house is the norm But a court case in 2021 might just change these perceptions. In a recent Federal Court case, two things were made clear: Late delivery payment will be calculated from the date you paid the booking fee, NOT when your SPA was signed. Booking fees are actually illegal The first one was a landmark decision. But believe it or not, number 2 is not something new: booking fees have been illegal since the 1980s. Let’s go through things one by one, and start with the first point: late delivery payment. Late delivery is counted from the moment you paid your booking fee Note: For you lawyers, you can read the full judgement here (55 pages). The case involved seven purchasers from Melaka and Kuala Lumpur who brought their developers – PJD Regency Sdn Bhd, GJH Avenue Sdn Bhd and Sri Damansara Sdn Bhd – to the housing tribunal over the payment for Liquidated Ascertained Damage (LAD). This is the compensation your developer pays you for late delivery of your home. All cases were appealed then heard together at the Federal Court. One of the developers argued that a scheduled contract needs to be read literally and based on the intention of the parties. So this means that if the SPA states a certain date, then that must be followed. The court disagreed with that, saying: “It is our view that the submission is untenable. When it comes to interpreting social legislation, the courts must give effect to the intention of Parliament and not the intention of parties. Otherwise, the attempt by the legislature to level the playing field by mitigating the inequality of bargaining power would be rendered nugatory and illusory.” – Chief Justice Tengku Maimun Basically, contracts such as SPA are made based on the Housing Development Act 1966. The Act was a social legislation, which means that it was created to protect the welfare of purchasers. So when judging these cases, they’ll need to understand why the law was made. In this case: protecting the welfare of the purchasers. The court also stated that the payment of a deposit already shows the intention of the purchaser to enter a contract with the developer. The payment of the deposit should also happen at the same time as the SPA signing. According to the Chief Justice: “Had the developers in the present appeals complied strictly with the terms of the Scheduled Contracts as statutorily prescribed, then the payment of the initial 10 percent deposit and the signing of the statutory sale and purchase agreement would have been done simultaneously.” – Chief Justice Tengku Maimun. Collecting the booking fees first before signing the SPA also puts the purchasers at a disadvantage. Not only do the developers get the money before the SPA is signed, they are also responsible for drafting the final agreement – essentially being able to decide the agreed date. This allows the developers to abuse it, and Chief Justice Tengku Maimun cited a case where the formal agreement was only signed 7 months after the booking fee was paid. She clarified the judgement by stating: “Where there is a delay in the delivery of vacant possession by a developer to the purchaser in respect of Scheduled Contracts under Regulation 11(1) of the Housing Development (Control and Licensing) Regulations 1989 (Regulation 1989) enacted pursuant to Section 24 of the Housing Development (Control and Licensing) Act 1966, the date for calculation of liquidated agreed damages (‘LAD’) 40 begins from the date of payment of deposit/booking fee/initial fee/expression by the purchaser of his written intention to purchase and not from the date of the sale and purchase agreement literally.” – Chief Justice Tengku Maimun. Another thing that most of us wouldn’t expect during this case is that... Booking fees are actually illegal This one might be surprising for most Malaysians, but collecting booking fees has been illegal since the 80s – more than 30 years ago. At first, booking fees were allowed though the price was regulated. When the Housing Development (Control and Licensing) Rules 1970 was passed, it set a limit for the amount that could be charged. Under Rule 10 of the Regulations, it’s stated that the purchaser shall not be required to pay a booking fee exceeding 2.5 percent of the purchase price. But this law was soon repealed, and the Housing Developers (Control and Licensing) Regulations 1982 (known as ‘HDR 1982’) was enacted. In this, it was implied that the practice of collecting booking fees has been ruled out. But it was finally stated clearly that it wasn’t allowed in the Housing Development (Control and Licensing) Regulations 1989 (‘HDR 1989’). Under Regulation 11, it stated that housing developers can’t collect any payment by whatever name except what is stated in the contract of sale. This was further amended in 2015 to make it stricter: everyone, not just developers, are prohibited from collecting booking fees. Under the new regulation 11(2): “(2) No person including parties acting as stakeholders shall collect any payment by whatever name called except as prescribed by the contract of sale.” The punishment for collecting booking fees is also stated under Regulation 13(1) of the Act. Anyone who does so can be fined not more than RM50,000, jailed not more than five years, or both. Those who collected the fees or advised developers to do so, will also get the same punishment. So then comes the question: if booking fees are illegal, does that mean your contract will also be void if you paid it? Your contract will still be valid The court did not consider these contracts to be illegal. Rather, it was the way these contracts were secured – that the developers committed an illegal act to secure it. “In other words, the fact that a particular course of conduct may attract penal sanctions is not in itself a sufficient ground to suggest that an agreement made in contravention of that very act is void for illegality.” – Chief Justice Tengku Maimun. So even if the contract you entered into goes against the law, it doesn’t mean you can’t get any compensation if you’re wronged. When judging these cases, you have to see the law that was used to make the contract on. As mentioned before, the contracts were made based on a social legislation – meaning that the law governing it was made to protect the weaker party, which is the purchasers. If the contract was voided due to the developer’s illegal action, it would defeat the purpose of the law. Without a contract, the purchasers won’t be able to get a remedy for their situation. So in these types of cases, the purchasers won’t be deemed to be at fault and can get appropriate remedy. The stronger party that abuses their power, which are the developers, will also be punished for their illegal act. But this isn’t a blanket statement, as it’s decided on a case by case basis. Booking fees are still collected Despite it being illegal for more than 30 years, the collection of booking fees still happens. According to the National House Buyer Association (HBA) secretary-general Chang Kim Loong, “There has not been any reports of prosecution for this blatant defiance of the law.” This case might also leave more questions for house buyers, especially those who have paid a booking fee before. It’s not uncommon to hear of their purchase being cancelled, and the booking fee returned partially or not at all. In that situation, we suggest you consult a lawyer. We’ve written before on how to get a lawyer, even if you can’t afford one. [READ MORE: What to do if you can't afford a lawyer in Malaysia?] If you’ve been charged exorbitant deposit money, you can lodge a complaint with the Consumer Tribunal. Toll free number (1-800-886-800) System e-Aduan: http://e-aduan.kpdnhep.gov.my/ Whatsapp"
"Wanita ni hilang rumah bukan sebab tak bayar pinjaman. Tapi pemaju yang tak bayar [Click here for English version] Pada beberapa minggu lalu, portal Free Malaysia Today ada melaporkan tentang seorang wanita yang rumahnya dah dilelong bank…walaupun dia dah dapat kunci rumah. Diringkas cerita, perkara ni tetap jadi jadi walaupun dia dah bayar penuh rumah tu kepada pemaju, tapi rupa-rupanya pemaju yang tak bayar ke bank. Kami akan terangkan dengan lebih terperinci lagi isu ni di bawah nanti. Cuma secara asasnya, rumah itu dilelong selepas bank tak terima bayaran daripada pihak pemaju, sedangkan dia dah bayar kepada pemaju. Disebabkan kes macam ni jarang kita dengar, kami pun hubungi seorang peguam untuk tahu lebih lanjut. Tapi sebelum tu, lebih baik kita baca dulu kisah yang menimpa wanita itu. Dia dah bayar penuh kepada pemaju Jadinya, berdasarkan apa yang dilaporkan media – wanita berkenaan dah beli sebuah rumah bernilai RM78,850 pada 2001. Dari tahun tu sampai 2005, dia dah bayar nilai tu secara beransur kepada pemaju secara tunai dan akhirnya semuanya langsai. Sebelum projek perumahan bermula, pemaju akan ambil pinjaman dari bank untuk membiayai projek. Pemaju kemudiannya kena bayar balik pinjaman tu secara berkala kepada bank menggunakan bayaran yang dibuat oleh pembeli. Bayaran sebegini dikenali sebagai bayaran berperingkat (proressive payments), di mana pembeli bayar dulu kepada pemaju dan bukannya terus kepada bank. Senang cerita, alirannya macam ni: Bayaran daripada pembeli ➜ pemaju ➜ bank Malangnya, dalam kes yang menimpa wanita ni – pemaju terima duit daripadanya, tapi tak bayar ke bank. Dia pula tak tahu yang pemaju buat macam tu. Dipendekkan cerita, pada 2009 barulah dia dapat tahu apa yang jadi selama ni. Bank lepas tu minta RM100,000 sebagai tambahan kepada faedah dan kos lain, untuk menebus balik rumah tu. Bila jadi macam tu, dia pun tunjukkan semua bukti pembayaran yang dia dah buat kepada pemaju, tapi bank tak dapat tolong apa-apa sebab mereka memang tak dapat sebarang bayaran. Rumah tu pula baru je dijual kepada orang lain baru-baru ni, selepas dilelong sejak bertahun-tahun. Wanita tu kemudiannya bawa bank dan pemaju ke mahkamah, tapi kes tu ditolak. “Kes berkenaan didengar dalam kamar, tetapi ia ditolak “tanpa sebarang sebab”, malah beliau diperintah membayar kos RM1,500 kepada peguam RHB Bank pada 13 Sept, 2018.” – Free Malaysia Today, 13 Disember 2020. Bagaimanapun, tak ada maklumat lengkap apa yang sebenarnya jadi dalam mahkamah, tapi apa yang kita dapat tahu – dia bukannya dapat pampasan, sebaliknya kena bayar kos kepada bank. Dia juga ada buat aduan kepada Jabatan Perumahan Negara dan Persatuan Pengguna Pulau Pinang (CAP), tapi masih belum ada sebarang maklum balas daripada pemaju. Lepas baca semua ni, mungkin korang tertanya-tanya – macam mana pemaju boleh terlepas dan macam mana pula bank ada hak nak jual rumah. Jadinya, ini apa yang peguam beritahu kami… Pastikan kita baca perjanjian pinjaman baik-baik Bila kita beli rumah baru, kita akan diminta untuk tandatangan banyak perjanjian berbeza dengan pemaju dan bank. Salah satu perjanjian tu, ada satu klausa yang kata – kalau bank tak dapat bayaran mereka, mereka berhak melelong rumah kita - atau melakukan penyitaan. Cumanya, klausa ini datang dengan safety net - di mana peguam kita boleh tulis Surat Penafian kepada bank. Surat ini nanti akan beritahu bank yang unit atau kediaman kita tu kena dikecualikan dari lelongan atau penjualan, kalau pemaju gagal membayar kepada bank. Namun, pengecualian ini hanya untuk jangka waktu tertentu saja, dan kita mesti kena selesaikan juga masalah kita dengan bank bila tiba masanya. Cuma, sekurang-kurangnya – ia menghalang bank dari jual rumah kita tu serta merta. Jadi secara ringkasnya, ini bermakna kalau kita tak ada apa-apa surat yang dikeluarkan oleh peguam, bank boleh ambil hartanah kita tu. Dalam kes apa yang jadi kepada wanita ni tadi, kemungkinan besar peguamnya tak hantar Surat Penafian kepada bank. Tak ada templat tetap macam mana nak buat surat ni – apa yang penting ia menyatakan yang rumah kita tu harus dikecualikan dari sebarang tindakan penyitaan atau penjualan. Kami ada la dapat contoh surat tu, tapi malangnya – kami tak boleh tunjukkan di sini atas dasar privasi. Jadi, apa yang kita boleh buat dalam kes macam ni? Seperti yang dinyatakan di awal tadi, wanita berkenaan dah failkan kes ke Mahkamah Tinggi, tapi nampaknya ditolak. Pada 16 Disember 2020, dia juga dilaporkan ada buat laporan polis terhadap pemaju. Bagaimanapun, masih belum ada sebarang maklumat tentang tindakan susulan (kami akan kemaskini jika ada nanti). Kami juga ada tanya peguam kalau ada cara lain yang wanita tu boleh buat untuk dapatkan balik rumahnya. Walaupun apa yang dilakukan oleh bank itu sah kerana perjanjian itu membolehkannya, wanita tu sebenarnya boleh ambil tindakan terhadap peguam yang menguruskan transaksi perumahan itu - atas dasar kelalaian. Kelalaian pada dasarnya adalah kesalahan sivil di mana seseorang yang diberikan tugas untuk menjaga orang lain, gagal melakukan tugas mereka. Dan kerana kelalaian itu jugalah ia telah membuatka pihak lain mengalami mudarat. Dalam kes khusus sebegini, para peguam boleh dikatakan memiliki kewajiban menjaga klien mereka, untuk memastikan rumah mereka tidak dirampas. Mereka boleh dikatakan cuai sebab tak keluarkan Surat Penafian. Apa yang pasti, walaupun kes sebegini jarang kita dengar – tapi apa yang bank buat tu sebenarnya sah berdasarkan perjanjian yang ditandatangani. Salah satu cara nak elakkan perkara ni dari jadi adalah kita kenalah baca baik-baik perjanjian pinjaman tu sebelum tandatangan. Pastikan juga peguam kita buat Surat Penafian kepada bank. Tentang apa yang jadi kepada pemaju, nampaknya status kes masih belum jelas lagi. Buat masa sekarang, kita cuma boleh lihat apa yang akan jadi lepas siasatan polis atau adakah akan ada kes baru terhadap mereka dibawa ke mahkamah nanti."
"In Msia, what can you do if your neighbour renovates their condo without permission? Note: While we mention ‘condo’ in the article, the laws discussed here apply to all strata properties (apartments, flats, other high-rise properties and gated communities). These laws are also only applicable for Peninsular Malaysia and the Federal Territory of Labuan. Picture this: you just moved into your new condo unit. The very next day, you see your neighbour carrying out massive renovations, causing a lot of noise and mess outside your house. You then find out that this neighbour actually hasn’t gotten permission to do all these renovations. This scenario is actually more common that we might know. In fact, a few days ago, we got a question from one of our readers: “How to stop an unauthorised renovation to a strata titled property? We previously wrote an article on how some house renovations require prior authorization, and some don’t: [READ MORE: Certain home renovations in Malaysia may not require permits. Here's why] In this article, we’ll look at what you can do about a neighbour who’s illegally renovating their unit. The management must approve renovations In Malaysia, there are two types of properties: strata titled and landed properties. Like we said earlier, strata properties are those that are gated and those that have managements. They usually have security guards, share facilities with one another, and so on. On the other hand, landed properties don’t have a management body and they don’t need to pay maintenance fees to anyone. So if an owner of a landed property wanted to renovate his home, he would have to get the approval of his Majlis Perbandaran. Once the Majlis gives them that permission, they’re free to go on with their renovations. It’s a different thing for strata properties. As we mentioned, these properties have management bodies. So if an approval for renovation in a strata property is needed, it would have to come from that management body. Condo managements have their own set of laws (known as by-laws), and this is a power given to them by the Strata Management Act 2013. Section 9 says that the developer/management) can: (2)(g) enforce by-laws Under these by-laws, you would also find what type of renovations are and aren’t allowed in your condo. So if you find out that your neighbour is going against these by-laws, let the management know ASAP. The penalty of going against these by-laws, though, depend on the management body itself. Now let’s say you do complain to your management, but your neighbour still isn’t stopping the renovations... What if your neighbour isn’t budging? In the rare case that your neighbour is renovating their house without the management’s permission, but the management doesn’t want to stop them, there are a few other avenues that you can try: inform your Majlis Perbandaran – although they usually only handle renovation approvals for landed properties, in the case where your management isn’t helping, you can ask them to step in file a police report, especially if the renovation is disturbing you because of noise, pollution etc. sue for private nuisance – you might think that this is excessive, but in some very extreme cases, this could be the best resort—especially when you’re unable to peacefully live in your own home. In fact, we did write about a family who sued their neighbours who caused them so much distress because of their renovations, among other things: [READ MORE: A Msian man was sued for RM50K for causing cracks and leaks in his neighbour's house] So it’s pretty straightforward: Your neighbour needs the management’s authorization to renovate their unit. If they don’t, but still continue with their plans, you’ll need to make a complaint to the higher authorities. But remember, if they do have permission, then you can’t stop them, even if you find it really annoying. Unless, of course, your own house is damaged and you lose peace of mind because of their renovations, just like the man who sued his neighbour for RM50,000."
"Can M'sians working from home claim their electricity bills from their employer? Due to the second MCO, most of us are probably forced to work from home again. We would probably welcome being able to avoid the commute to work, and that most meetings can be done on Zoom, pants optional. But if you went through the WFH experience last year too, you’d probably notice one drawback: your electricity bills going up. And if you’re sharing your house with other people who are working from home too, your monthly bill probably went up exponentially. But since you’re ‘working’, technically...can you claim your electricity bill from your employer? After all, it’s definitely for work, and not for Netflix. Only if your company agrees to it Unless your company policy covers this situation, you probably can’t claim for your rising electricity bills (sorry). In general, employers are required to provide certain benefits to their employees. This is governed by the Employment Act 1955, which probably explains why WFH benefits aren’t included. Under the Act, employers are required to give the following benefits: Annual leave Holidays Sick leave Maternity leave Overtime Lay-off benefits Other required employer contributions such as EPF and SOCSO are covered by their respective act, the EPF Act and the SOCSO Act. Any other benefits such as travel allowance and medical insurance are optional, and not required under the law. So unless your employer agrees to offer those perks, it’s unlikely that you can claim the expenses for working from home. Do note that the Act only covers employees who earn below RM2,000 and manual laborers regardless of pay. If you earn above that, or you’re not a manual laborer, it will depend on your employment contract. Even if you’re not covered under the Act, it’s used by employers as the baseline when creating contracts for employees not eligible for it. These laws are also only applicable for Peninsular Malaysia and Labuan. Sabah and Sarawak rely on the Sabah Labour Ordinance and Sarawak Labour Ordinance respectively. Some countries are giving benefits for WFH As lockdown measures are imposed worldwide, some countries have started to make bosses pay for their employees extra cost for working from home. In Holland, the Dutch authorities have started offering their bureaucrats a €363 (RM1,782) covid “bonus” for working from home. This is based on a research by NIBUD, and the bonus covers expenses such as tea, coffee, toilet paper, electricity, water and the depreciation cost of your desk and chair. In Spain, employers are obliged to pay for home office maintenance and equipments. Germany are working on a law to make working from home a legal right. Few years back, France has made it law that employees can ignore emails sent after working hours. When will Malaysia implement similar laws? For now, Malaysia has not implemented such laws yet. The only concrete thing we have now is a tax exemption of up to RM5,000 for purchasing ICT equipments for work. The way forward seems to be for employers and employees to come to a compromise on the cost. The Malaysian Trade Union Council’s deputy president Mohd Effendy Abdul Ghani said that if a company can afford it, they can provide items such as laptops to their employees, as is the case for employees working in an office. Or both parties could also come to a compromise where the employee uses their own desktop, with the company paying part of the electricity and internet bill. So until the government has made these things law, we’ll just have to negotiate with our bosses to make working from home...work."
"Can employers in Msia cancel your bonuses and other benefits due to the pandemic? If you’re an employee, you would agree that workers should be given salary increments and other benefits from time to time. Especially if your contract does mention something about getting perks now and then. But lately, with Covid-19 around, many companies are still trying to stay afloat and may not be able to pay any extra money to their employees. In a case that was heard last November, the Industrial Court decided that during Covid-19, a company may be exempted from giving employees salary increments and other bonuses. Of course, this rare decision might have been made as the facts of the case were unique. But if a similar situation were to arise, the Court might very well decide it in the same way again. The dispute was between a worker union and a company Trade or worker unions are groups of people that represent other workers to protect their rights from being abused. In this case, the union was known as Kesatuan Sekerja Industri Elektronik Wilayah Utara Semenanjung Malaysia—a union for electronic workers. They wanted to form an agreement with Panasonic Automotive Systems Malaysia Sdn Bhd, and this agreement is known as a collective agreement. Section 2 of the Industrial Relations Act 1967 defines a collective agreement as: “...an agreement in writing...between an employer or a trade union of employers...relating to the terms and conditions of employment and work of workmen or concerning relations between such parties” So in essence, the agreement listed down the rights and obligations of the workers that were to be given by the company, Panasonic. Now what made the parties go to court was the fact that the company didn’t agree with some of the terms that the union wanted to include in the agreement. In specific, there are 20 of them. We’re not listing them here, but if you’re keen on knowing what they are, you can give the full judgment a read here. In short, the union was asking for: a salary adjustment of 10% contractual bonuses a yearly 10% increment for any employees that qualified The company said that it could not agree to these, mostly due to the Covid-19 pandemic which has left them financially strained. The Court agreed with the company Although the company didn’t agree with 20 of the terms requested by the union, there were 31 other terms in the agreement that they agreed to. Some of them included retirement benefits, pay during a prolonged illness, and uniforms and personal protective wear for the employees. In coming to its decision, the court looked at Section 30(4) of the Industrial Relations Act 1967, which says: In making its award in respect of a trade dispute, the Court shall have regard to the public interest, the financial implications and the effect of the award on the economy of the country, and on the industry concerned, and also to the probable effect in related or similar industries. This simply means that the court is taking into account the present situation of the country, and how the economy and the electronic industry will be affected by this judgment. The court reiterated that the company did agree to 31 of the terms put forward by the union (there were another 3 which were abandoned with the agreement of both the parties). However, the remaining 20 terms that were in dispute were not accepted by the Court. The summary of the judgment said: “In handing down this Award, the Court had taken into consideration the interest of the members of the Union as well as the financial implications to the Respondent [the company] especially in this fragile economic climate caused primarily by the Covid-19 pandemic.” They went on to say that with things continuing to be uncertain for the economy, they had to decide what was best for both parties. The court rejected the requests for the salary adjustments and bonuses, and said that the yearly increment should be at 5%, instead of 10%. What does this mean for Malaysian employees? Like we mentioned above, this is a case with unique facts. Whether a similar judgment can be made for other cases depends on the facts of those cases. But what we can tell you is that this case has indeed set a precedent, or an example, for the courts to apply to in future cases. Or they may even use it a reference. Given the fact that this pandemic is still very much present and taking a toll on the economy, unfortunately, it wouldn’t be surprising to see companies taking away or pausing some employee benefits. If they do do so, this case might be what has given them the green light. But this doesn’t mean that companies can easily use Covid-19 as an excuse to suspend employee benefits. If a dispute concerning this were to be heard in court, the Court will still look at the company’s financial position, and the facts of the case on the whole."
"Mahkamah boleh jual dan lelong hartanah kita. Ini caranya ia berfungsi [Click here for English version] Mungkin tak semua daripada kita pernah terlibat dalam acara lelong sebelum ni, tapi boleh dikatakan kita pernahlah nampak acara ni dalam TV. Selalunya, kita akan nampak yang sesuatu barang tu diletakkan harga asas, dan lepas tu akan dibida oleh dengan tawaran harga yang lebih tinggi. Orang yang bida dengan harga tertinggi tu nanti akan dapat beli barang tu. Tapi, lelong bukan hanya terhad pada barang je, sebabnya ia boleh termasuk juga dengan kereta dan rumah. Ia turut boleh dilakukan oleh institusi undang-undang atau perseorangan yang ada lesen pelelong. Sebelum ni, kami ada tulis pasal macam mana PDRM buat lelongan barang yang mereka rampas dari kegiatan jenayah. [BACA LAGI: Did you know the PDRM are allowed to sell stuff they confiscate from criminals?] Jadinya, untuk artikel kali ni – kami akan cerita pasal macam mana pula mahkamah buat lelong, khususnya lelongan hartanah. Hanya hartanah yang dirampas saja yang boleh dilelong Kalau korang rasa yang mahkamah boleh je ambil hartanah korang dan terus lelong – tu sebenarnya tak tepat dan salah sama sekali. Ini kerana, mahkamah hanya boleh lelong sesebuah hartanah tu sekirnya hartanah tu dah dirampas – atau dengan kata lain diambil kerana hutang dengan bank tak dilangsaikan. Hartanah tu kemudian akan dijual oleh bank, sebab secara teknikalnya banklah yang memiliki hartanah sampai pinjaman dilunaskan. Bagaimanapun, rampasan bukan bermakna hartanah tu secara automatik akan dijual. Kalau notis rampasan diberikan kepada korang dan korang lepas tu membayar jumlah tertunggak dengan bank, hartanah tu akan diserahkan balik kepada korang. Maknanya, korang masih ada peluang untuk dapatkan balik hartanah sebelum ia dilelong dan dijual. Berbalik kepada lelong… Ada dua jenis lelong yang wujud sebenarnya Sebelum kita pergi ke lelongan mahkamah, sebenarnya ada dua jenis lelong yang kita kena tahu: lelong kehakiman lelong bukan kehakiman Perbezaan antara kedua jenis ni adalah adalah terletak kepada siapa yang ada hak milik (secara sah) hartanah. Lelong kehakiman secara asasnya ada kaitan dengan kehakiman iaitu berkait dengan urusan mahkamah. Selepas sesebuah hartanah tu dibeli daripada pemaju, pemaju akan pindahkan hak milik kepada orang yang membeli hartanah tu. Orang tu pula kena bayar pinjaman dengan bank sehinggalah hartanah tu selesai dibayar. Kalau berlaku banyak tunggakan, bank akan rampas hartanah tu dan jualnya kepada orang lain untuk dapatkan wangnya balik. Tapi, disebabkan hak milik hartanah tu dah dipindahkan daripada pemaju kepada pembeli, bank kena dapatkan kebenaran dari Mahkamah Tinggi sebelum boleh jual hartanah tu. Kalau mahkamah berikan kebenaran, hartanah tu nanti akan dimasukkan dalam senarai hartanah yang akan dilelong oleh mahkamah. Manakala, lelong bukan kehakiman pula jadi bila mana hak milik hartanah masih lagi di bawah pemaju. Disebabkan hal ni, bank tak perlu dapatkan kebenaran mahkamah kalau nak jual hartanah berkenaan. Bank boleh lelong hartanah tu dalam acara lelongan tertutup, guna khidmat syarikat lelong ataupun buat acara lelong sendiri. Mahkamah Malaysia ada sistem atas talian untuk lelongan tu Biasanya, acara lelong ni akan dilakukan di dalam bilik mahkamah yang dikhaskan untuknya. Banyak jugalah proses yang korang kena ikut, tapi apa yang paling penting adalah korang kena daftar dulu kalau nak terlibat dalam acara tu. Yang mendaftar tu pula kenalah orang yang betul-betul serius nak beli hartanah dan bukan saja-saja je daftar. Sebabnya, kalau korang daftar, tapi tak terlibat langsung untuk sebarang bidaan – korang boleh kena senarai hitam untuk lelongan seterusnya (bagi tempoh tertentu). Pada hari lelongan tu, korang dikehendaki bayar 10% tempahan dari harga hartanah tu dulu. Harga tempahan ni diambil dari harga asas hartanah yang akan dilelong dan pembida akan bida dengan harga yang lebih tinggi dari itu. Harga 10% tu kena diberikan dalam bentuk draf bank dan nanti ada kotak di depan bilik mahkamah untuk korang masukkannya. Lepas tu, barulah bidaan bermula bila mana pihak yang membida dengan harga tertinggi akan menang dan beli hartanah tu. Hartanah tu pun akan dipindah milik kepada pembida . Tapi, sejak tahun 2018 – lelong mahkamah dah boleh dibuat secara atas talian, melalui portal e-Lelong di mana memudahkan para pembida untuk buat bidaan tanpa datang ke mahkamah. Maknanya, kalau pembida tu duduk dekat Semenanjung, mereka tak payahlah pergi ke Sabah atau Sarawak kalau nak bida hartanah. Portal tu juga sediakan kemudahan untuk pembida tengok semua hartanah yang dilelong dan ada tutorial macam mana ia berfungsi. Akan tetapi, buat masa sekarang hanya empat mahkamah je yang ada sistem bidaan atas talian iaitu Mahkamah Tinggi Kuantan, Mahkamah Tinggi Temerloh, Mahkamah Tinggi Ipoh dan Mahkamah Tinggi Taiping. Boleh ke hartanah yang dah dilelong diambil semula? Pada asasnya, selepas sesebuah hartanah tu dijual dan dipindah milik kepada orang lain secara sah, ia dah menjadi milik orang tu. Ada kebarangkalian untuk korang dapatkan balik hartanah yang dijual disebabkan kesilapan, tapi peluang untuk dapatkan balik tu masih lagi tipis. Kami juga sebelum ni pernah tulis pasal seorang wanita yang rumahnya kena lelong dan dijual kepada orang lain sebab pemaju tak bayar pinjaman bank. [BACA LAGI: A Malaysian woman lost her home...because her developer didn’t pay the loan] Wanita ni ada cuba bawa kes ke mahkamah, tapi malangnya ia ditolak. Dia juga ada buat laporan polis, tapi status kes masih lagi belum diketahui. Walaupun peluang untuk mendapatkan balik hartanah korang yang dah dijual tu tipis, salah satu cara yang mungkin boleh digunakan untuk dapatkannya balik adalah dengan membelinya semula dari orang yang beli melalui lelong tu. Tapi seperti mana yang dikatakan di awal tadi, kalau hartanah korang tu dah dirampas, tapi masih belum dilelong dan dijual, peluang untuk dapatkannya balik tu masih lagi cerah."
"Malaysia might be having snap elections. How soon will it happen? Recently, there have been speculation that snap elections might happen some time soon. Some have even suggested that it could happen within the first quarter of the year. But if you’re worried about having to make arrangements to go out and vote, rest assured: there’ll usually be two months from the announcement date to the election date proper. Because despite its name, a snap election doesn’t really happen at a snap of a finger. It actually takes much longer than that to happen. It happens earlier, not immediately Snap election does not mean an immediate election: it means a general election that’s called much earlier than expected. In Malaysia, a general election must happen at least once every five years. This is because under Article 55(3) of the Federal Constitution, the Parliament must dissolve (disband) five years after their first meeting. Once Parliament has dissolved, there’ll be a new general election to choose new Members of Parliaments (MP). As our first Parliament meeting after the last election was in 2018, the next general election must be held by 2023. But before the five years are up, the current Prime Minister can choose to call for a snap election. To do so, they can ask the Agong to dissolve the Parliament. Once Parliament is dissolved, the general election must be held within two months from the date. Within that time, there will usually be a caretaker government, which will either be the previous government, or one that is appointed by the Agong. Not having a strong, formidable, convincing majority There are a few reasons why a government would want to hold a snap election. But in Malaysia, it’s usually to do with the support the Prime Minister gets from his MPs. Under Article 43(4) of the Federal Constitution, if the Prime Minister does not have the majority of support from the MPs, they can choose to dissolve the parliament and hold elections. This is the likely scenario that might happen, as the current Prime Minister Muhyiddin Yassin is reported to have lost the majority, after the Machang MP withdrew their support for Muhyiddin. If they choose not to hold an election, the Prime Minister must tender their cabinets resignation. This means that the Prime Minister and all of the ministers must resign, allowing the one with the majority to form the government. Will we see our first snap election? So far, there has never been a snap election called at the Federal level. No general election has ever been called in Malaysia earlier than 3 years before the deadline. It has happened at the state level a few times. The most recent is the 2020 Sabah election, when the then Chief Minister Shafie Apdal dissolved the Sabah state government. Holding a snap election is definitely legal, but there are concerns about the timing. Malaysia has hit the record high of 3,000 cases per day, and there are fears that holding an election might cause the infection rate to rise. There is also the extra cost that comes with holding an election during a pandemic. With additional safety resources included, the budget for this election might hit RM1.2 billion. In comparison, the 2018 election costed less than half, at RM500 million. Either way, we’ll have to wait and see if this election will happen."
"In Malaysia, can your company demote you without a reason? Who doesn’t love getting a promotion? Those of us in the working world certainly look forward to getting a raise when it’s due. But today we’re looking at the total opposite of a promotion: a demotion. It’s not something that you might hear of everyday, but it does happen. We previously wrote about whether your boss can change your job scope after you start working for them: [READ MORE: Can Malaysian companies change your job description...after you sign the contract?] But in this article, we’re looking at whether your employer can give you a more junior role at work if they feel you deserve it. Interestingly, they can, but only in certain circumstances. Employers do have the right to demote you While demotion may sound...mean, the law actually does accord them the right to downgrade your position. Section 14 of the Employment Act 1955 states: 14. (1) An employer may, on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of his service, after due inquiry— (a) dismiss without notice the employee; (b) downgrade the employee; or (c) impose any other lesser punishment as he deems just and fit, and where a punishment of suspension without wages is imposed, it shall not exceed a period of two weeks So, specifically Section 14(1)(b) mentions that downgrading or demoting an employee is allowed. However, the initial part of the Section says that demotion here can only be done if the employee has committed some misconduct. In other words, they must have done something wrong, and demotion would be just another way of penalizing them. The Employment Act, however, doesn’t apply to everyone. Those who come under this Act are employees in West Malaysia and Labuan who earn RM2,000 and below. If you don’t come under this Act, check your employment contract or with your HR on what the policy on this is. There would be a specific section on what your company can do if there’s misconduct on your part, and if demoting you would be one of them. However, misconduct or poor performance cannot automatically be used as an excuse to demote you. In Tan Ngiap Kit v. Affin Bank Berhad, the Court held that the demotion was wrong because the company policy didn’t mention anything about it in the policy. But even if your company does have the power to demote you because of the Employment Act or what’s in your employment contract, there are still one key condition to fulfill. Your job scope cannot drastically change Even if you get demoted, the essence of your role in the company cannot be too different from what you were previously doing. If it does, it would be a breach of your contract between you and the employer. In the case of Nippon Paint (M) Sdn Bhd v Abd Rahim Md Ibrahim [2008], the employee had held the position of a Marketing Services Sales Executive. After he was found to have breached the company’s code of conduct, they demoted him to sales supervisor. They also took away his bonuses as they didn’t apply to this new position. The court held that company was wrong in demoting him. In essence, these were the reasons: the post he initially held and the one they demoted him to were in very different categories under the company’s policy the benefits he would now get were very different from what he used to get. This included important things such as medical treatment he would now have to ‘punch in’ his card when coming in to work everyday, which was not required of him when he had a more senior role the number of annual leave he had was reduced Because of all this, the court felt that the demotion was not justified. The company then had to pay him a total of RM112,200 as compensation. You can file a case in the Industrial Court If you’ve been demoted without a good reason or without your knowledge, you may have a claim for constructive dismissal. Constructive dismissal means that your boss created such a bad work environment for you, that you were forced to resign from your job. A demotion that was not justified and one that really alters your job scope is a good example of a hostile work environment that may drive you to call it quits. You will need to file a case in the Industrial Court within 60 days of you leaving the company. The Court will then try to settle the issue between you and your employer privately first. But if the problem cannot be solved easily by negotiation, then the Minister of Human Resources will allow the case to be heard by the Court. If the Court decides in your favour, you may either get your job back, or you’ll receive monetary compensation."
"5 new Malaysian laws that will start in 2021 Last January, we wrote about some laws that would take effect in 2020. [READ MORE: Here's 5 Malaysian laws you didn't know have started in 2020] 2020 went by in the blink of an eye, and now we already have a list of some of the laws that will be passed in 2021. There are many more than what’s listed here, but in this article we’ll be covering just five of them. In the list below, you’ll see that these laws are known as ‘Bills’. In case you didn’t know, Bills are laws that have been scheduled to be passed. Once they are passed and come into effect, they’ll be known as ‘Acts’. This is just for your information, so you have a clearer picture of how laws are made before we jump into the soon-to-be laws below. [READ MORE: Why does Malaysia take so long to create or change laws?] 1. It’s now harder to become bankrupt If a person has too much debt that they’re unable to pay off, they can file for bankruptcy. They can then get exempted from paying some of their debts (not all) and this also means that their debtors cannot take legal action against them. So in a way, it’s a safeguard. But besides being able to file for bankruptcy on your own, others (specifically, those you owe money to) can have you declared bankrupt. While being declared bankrupt may take away some of your debts, the not-so-nice part about it is that it can severely affect your creditworthiness and what’s left of your money. Your non-essential properties, such as your home and car, can be taken away and sold off to pay your debts. Trying to get financial loans in the future may also be a challenge, as these institutions may worry that you would be unable to pay them back. Because the effects of being bankrupt can carry on for years, Parliament decided to pass the Insolvency (Amendment) Bill 2020. When it is finally in place, it will increase the debt threshold from the current RM50,000 to RM100,000. This means that a person would need to have a debt of RM100,000, minimum, before they can be said to be bankrupt, and it would be harder for debtors to start bankruptcy proceedings against them. [READ MORE: How do bankruptcy proceedings work in Malaysia?] 2. Drunk drivers will face harsher penalties Every now and then, we might hear of road accidents caused by drunk drivers. While statistics by the World Health Organizations say that Malaysia has one of the lowest drunk driving records, an article by The Asean Post said that recently, there has been an increase in drunk driving cases. So even if the numbers are relatively small for now, they may not always remain that way due to the yearly increase in cases. At present, the penalty for drunk driving is 10 years of imprisonment and a RM20,000 fine. However, the Road Transport (Amendment) Bill 2020 that has been passed will bring about stricter punishments. When it comes into effect, those caught driving while drunk may face up to 10 to 15 years in a jail, and a fine of RM50,000 to RM100,000. If they repeat the offence again, they can be jailed for 15-20 years and be fined RM100,000 to RM150,000. There have been also been talks of increasing the period of driving license suspension from 10 years to 20 years. 3. More court hearings will be allowed to be held online During the MCO, almost everything was closed and at a standstill, including our courts. But even when things slowly started to open up, the courts didn’t rush to hear all their cases in the usual courtrooms. Instead, they made it possible for some of them to be heard through video calls. We wrote an article on how the process works. [READ MORE: How were Malaysian courts hearing cases during the MCO? We find out] But seeing as Covid-19 isn’t really going anywhere any time soon, it’s been decided that there should be more remote court hearings. To set this new norm in black and white, the Courts of Judicature Act of 1964 has been slightly amended. Section 3 of the Courts of Judicature (Amendment) Bill 2020, as it’s now called, says that remote court proceedings can be done through: “a live video link, a live television or any other electronic means of communication”. Of course, normal proceedings in court will still be held, but where possible, the cases may be heard online. 4. Tourists will need to pay tax for online hotel bookings Tourism tax isn’t exactly a new concept in Malaysia. Since September 1st 2017, all foreign tourists have had to pay RM10 per night, per room in addition to the accommodation price. The Tourism Tax Act 2017 was what had put this in place. But in 2021, we’ll be seeing some changes to this Act.. The amendments suggest that tourists will now also have to pay tax for any hotel booking made online. The wording of the Act, which states ‘accommodation’ very likely means that it will cover Airbnbs and homestays as well. Another change being made to the Act is that any online service provider for hotels and other accommodation will need to be registered. This would include bigger platforms such as Hotels.com and Booking.com, and even smaller ones. 5. Some National Security Council laws are being changed The National Security Council Act 2016 is what gives the NSC, also known as Majlis Keselamatan Negara, their powers. As these laws are pertaining to national security, the amendments made to this took awhile to be finalized. In fact, it was tabled (postponed) twice by the previous government and the present one. One of the changes made to it is that the Prime Minister now does not have the power to declare a security area. Instead, that power will be handed over to the Yang di-Pertuan Agong. Besides that, the penalty has been increased for those who go against their duty to keep the Council’s secrets. This amended law also states that the power to come up with regulations under this National Security Council Act will be with the council as a whole, and not just the Prime Minister alone. Like we said, these are just five of the new laws that will be in effect this year. The full list can be viewed on Parliament’s website here."
"Our top 10 most read articles of 2020. And no 2 is about...cows and chickens? What a year. 2020 must be the year where we spent the most time indoors due to the MCO. New situations started popping up, like balcony karaoke sessions. And in typical Asklegal fashion we thought, Can we sue the neighbours for that? (Hint: You can sue anyone for anything) However, when we looked back at the year’s top articles, only one article about neighbours made it into the list. But quite understandably, 3 of the top articles were MCO related. So here it is, in case you missed it: our top 10 articles of 2020. 10. MCMC fined Malaysian telcos RM4.6 million for ‘bad service’ We’ve all had issues with our telcos before. It could be from getting weak reception in certain areas, billing issues, or just poor customer service. And because we’re so used to it happening, we might think that’s just how things are. But some of our readers had a case of schadenfreude, when the major telcos in Malaysia were fined a collective RM4.6 million for bad service. Judging from the FB comments we had about it, some of you are pleased that there is a penalty for poor service, while some felt the fine was too low. You can read the breakdown of the fines here. [READ MORE: Maxis, Digi and 3 other telcos have been fined RM4.6 million...for 'bad service' ] 9. Family sued for having CCTV pointed at their neighbour’s house With the MCO forcing most of us to stay at home, we’ve probably spent some time staring out the windows, marvelling at the empty roads. But imagine looking out...and seeing your neighbour has a CCTV installed, and it’s pointed straight at your house. This story didn’t happen during the MCO though, but back in 2009. It was between two next door neighbours in Johor, Pua and Lew, who...lets just say they didn’t like each other. Pua then installed several cameras around his house, and one of them was pointed straight at Lew’s house. Feeling that his privacy was violated, Lew sued Pua for it. [READ MORE: A Malaysian family got sued because their CCTV was pointed at the neighbour's house ] 6, 7 & 8: Government announcements about the MCO No 6, 7 and 8 were on the same topic, so we decided to group them under one point: announcements from the government about the MCO. When the MCO was first enforced, most of us weren’t sure what was going on. Some of us might watch the live announcements from Muhyiddin, which was another new thing for us. Every other week there were new SOPs to follow, government subsidies, and what industries are allowed to open. But these announcements tend to come with a hefty FAQ book, which some of us won’t bother reading. So we thought we’d do it, and highlight what we thought were relevant from the whole FAQ. The most read in descending order was: [READ MORE: No 8. More industries are allowed to open in phase 3 of MCO. Here’s what you need to know ] [READ MORE: No 7. Can Malaysian tenants get a discount on rent during the MCO? ] [READ MORE: No 6. Msian govt is subsidising workers salaries. Here’s how employers can sign up for it ] 5. Types of leave in Malaysia We have one of the highest number of public holidays in the world. Besides major holidays like Hari Raya, we also have the Sultan and Agong’s birthday, Federal Territory day, Nuzul Quran...so it’s not uncommon to think, wait is this a holiday? It’s important to be sure, because if you’re working on a public holiday, you’re usually entitled to a double pay. There might also be some of you who were forced to work on public holidays by your boss. If that’s the case, this article can shed light on what you can do in that situation. We actually wrote this back in 2018, and it’s still relevant until now. [READ MORE: 5 types of leave in Malaysia (and if you will be paid when you take them) ] 4. Stewardess fired for being ‘fat’ Just to be clear, the airline didn’t say she was fat. Rather, in this case from 2017, she was let go for being overweight...by 700 grams. Cabin crews are expected to maintain an optimal weight. Based on her BMI, the stewardess is expected to weigh no more than 61kg. But at her final weigh in, her weight was at 61.7 kgs. The airline opted to let her go for not maintaining her image, as per company policy. Disappointed, she brought her case to the Industrial Court as she felt she was unfairly terminated. How did the court weigh in on this matter? You can read up on it below. [READ MORE: A Msian stewardess was fired for being 'fat' AND the court agreed with the airline ] 3. Non-Muslims can’t sue Muslims for ruining their marriage In this case, a non-Muslim woman tried to sue her husband’s (alleged) lover, a Muslim woman, for ruining her marriage. But when they went to court, the judge basically said...she can’t sue the other woman, because she’s a Muslim. In Malaysia, laws on civil marriages do not apply to Muslims. This is because Muslim marriages in Malaysia are governed by Islamic laws. However, if the third person was non-Muslim, you can sue them, which we’ve written about before. But to continue reading this particular story, you can do so below. [READ MORE: A non-Muslim woman sued a Muslim woman for ruining her marriage. The court disagreed ] 2. Raising farm animals in our backyard As Malaysians, it’s not that uncommon to see chickens in someones backyard. Some of you might even have a few of them running around in your backyard. A reader asked us about it before: is it actually legal to keep chickens in your house? So we did the legwork of checking whether that is the case. Turns out...it’s not! In fact, you’ll get fined for doing so. Surprised? So were we, and probably everyone who read it and shared it around. The Malay translation was the most read version, but you can read both versions below. [BACA LAGI: Di Malaysia, korang boleh kena denda kalau pelihara haiwan ternakan di belakang rumah ] [READ MORE: In M'sia, you can be fined for rearing farm animals in your backyard ] 1. An employee received RM1.13 million in compensation This one might be relatable to those who makan gaji, which is most of us. And this, surprisingly, was our top read article for 2020. In this case, NR, an employee in Petronas, was fired without a fair reason. She had been working there for 24 years. Due to corporate restructuring, she was moved to another division where she had a personal spat with her superior, ZZ. This issue led to NR being fired in 2017, but her case was only heard in the Industrial Court in 2019. There, the court decided that she was unfairly fired, and they ordered her employee, Petronas, to pay her RM1.13 million in compensation. [READ MORE: A Malaysian employee was unfairly fired, so the company had to pay her RM1.13 million ] Thank you for reading! That’s it from us this year. Thank you so much for your support, and we’ll see you in 2021. Happy New Year!"
"Boleh ke syarikat di Malaysia jadi Muslim? Kes mahkamah ni berikan kita jawapannya [Click here for English version] Pada tahun 2012, penerbit buku Ezra Zaid dah ditahan oleh Jabatan Agama Islam Selangor (JAIS). Dia ditahan selepas syarikat penerbitannya, ZI Publications dah menerbitkan dan mengedarkan sebuah buku bertajuk “Allah, Kebebasan dan Cinta”. Menurut JAIS, penahanannya itu kerana Ezra dah melakukan kesalahan – penerbitan buku yang bertentangan dengan hukum syarak. Disebabkan ZI Publication menerbitkan dan mengedarkan buku yang dah diharamkan, diorang secara amnya memang akan dapat masalah dengan undang-undang sedia ada. Tapi dalam isu dengan JAIS ni, undang-undang yang mereka hadapi adalah Enakmen Jenayah Syariah (Selangor) 1995 yang hanya terpakai untuk orang Islam dan bukannya syarikat. Jadi, disebabkan mereka mendakwa Ezra secara peribadi kerana dia pengarah syarikat tu, ia dah menimbulkan dua persoalan: Boleh ke undang-undang dikenakan kepada pengarah syarikat, kalau syarikat yang sebenarnya melanggar undang-undang? Kalau ZI Publications didakwa di bawah Enakmen Jenayah Syariah (Selangor) 1995 yang hanya terpakai kepada orang Islam sahaja, adakah ini bermakna syarikat pun boleh jadi Islam (Muslim)? Walaupun soalan kedua ni nampak macam tak berapa masuk akal, tapi sebenarnya penting sebab ia berkaitan dengan banyak persoalan tentang implikasi undang-undang. Sebab itulah kes ni berlarutan lama, sampailah mahkamah buat keputusan pada 25 September 2019 lalu. Semuanya bermula dengan serbuan JAIS Pada Mei 2012, ZI Publications Sdn Bhd dah menerbitkan buku versi Bahasa Melayu untuk “Allah, Liberty and Love” (Allah, Kebebasan dan Cinta) oleh seorang penulis Kanada, Irshad Manji. Bagaimanapun, buku ni dianggap sebagai bertentangan dengan ajaran Islam dan pada 24 Mei 2012, Kementerian Dalam Negeri (KDN) dah buat keputusan untuk kedua-duanya (dalam BM dan BI) diharamkan. Sekarang ni, kalau syarikat yang buat jenayah, hanya syarikat je yang akan didakwa. Pengecualian masih boleh jadi, tapi tu kita akan bincang nanti. Ini kerana, syarikat dianggap sebagai personaliti yang berasingan dari pengarah ataupun pekerja. Jadinya, kalau ada sebarang dakwaan untuk kes ni, dakwaan itu akan ke ZI Publications dan bukan orang di sebaliknya. Tapi, bila JAIS dapat tahu yang ZI Publications terbitkan dan edarkan buku ni, mereka buat yang lain. JAIS mendakwa pengarah ZI Publications Lepas 5 hari KDN umumkan tentang pengharaman buku tu, JAIS bertindak menyerbu pejabat ZI Publications di Kelana Square, Petaling Jaya. Mereka juga rampas 180 cetakan buku dalam BM dan tahan pengarah syarikat, Ezra Zaid. JAIS buat serbuan dan tahan Ezra Zaid tu sebab dia didakwa melakukan kesalahan di bawah Seksyen 16(1), Enakmen Jenayah Syariah (Selangor) 1995 yang menyatakan: Mana-mana orang yang: – (a) mencetak, menyiarkan, menerbitkan, merakamkan atau menyebarkan dengan apa-apa cara apa-apa buku atau dokumen atau apa-apa bentuk lain rakaman yang mengandungi apa-apa jua yang bertentangan dengan Hukum Syara'; atau (b) ada dalam miliknya apa-apa buku, dokumen atau bentuk lain rakaman sedemikian untuk dijual atau bagi maksud untuk disebarkan dengan apa-apa cara lain, adalah melakukan suatu kesalahan dan apabila disabitkan boleh didenda tidak melebihi tiga ribu ringgit atau dipenjarakan selama tempoh tidak melebihi dua tahun atau kedua-duanya. JAIS dakwa yang Ezra bersalah sebab menerbitkan dan mengedarkan buku “Allah, Kebebasan dan Cinta” dan kerana memiliki 180 cetakan buku itu. Dia kemudiannya didakwa di Mahkamah Syariah pada Mac 2013, tapi mengaku tak bersalah dan minta dibicarakan. Ezra cabar tuduhan syariah terhadapnya Apa yang Ezra buat lepas tu agak rumit sikit, sebab ia melibatkan tindakan undang-undang yang melibatkan undang-undang berbeza. Nak lebih faham lagi, selain dari berurusan dengan Mahkamah Syariah, Ezra juga ambil keputusan untuk cabar dakwaan terhadapnya di Mahkamah Sivil. Dia failkan 3 semakan undang-undang sivil terhadap JAIS dan ini dia hasilnya: Menggunakan undang-undang Syariah untuk mengharamkan buku yang bertentangan dengan undang-undang Islam adalah tak berperlembagaan – Ezra kalah. Mencabar Kementerian Dalam Negeri atas alasan pengharaman buku – TBC Serbuan JAIS, sita, penahanan dan pendakwaan adalah tidak sah – Menang (buat masa sekarang) Untuk semakan pertama, Mahkamah Persekutuan menolaknya pada 2018. Keputusan itu dibuat kerana – JAIS didapati bertindak dalam bidang kuasanya untuk menguatkuasakan Seksyen 16, malah seksyen itu sah dan bukannya tak berperlembagaan. Untuk semakan kedua pula, Mahkamah Persekutuan membenarkan kerajaan membuat rayuan bagi mengekalkan pengharaman buku itu. Dan bagi semakan ketiga, Mahkamah Rayuan baru je buat keputusan baru-baru ni, dan ia juga adalah jawapan untuk soalan kita: Boleh ke undang-undang Syariah terpakai terhadap syarikat? Jadinya, sekarang, jom kita tengok hal ni dengan lebih dekat lagi… Sebuah syarikat secara teknikalnya adalah “orang” Apa dia personaliti undang-undang berasingan untuk syarikat? Korang mesti tertanya apa dia sebenarnya personaliti undang-undang berasingan (separate legal personality) ni? Di bawah Seksyen 20, Akta Syarikat 2016 dah dinyatakan bahawa sesuatu syarikat yang diperbadankan di bawah Akta mempunyai keperibadian undang-undang yang berasingan daripada anggotanya. Ini bermakna, sesebuah syarikat itu wujud sebagai entiti undang-undang sendiri dan berasingan dari anggotanya seperti pengarah, pekerja dan sebagainya. [BACA LAGI: Syarikat Sdn Bhd wujud hari ni, sebab seorang tukang kasut disaman pada tahun 1893] Jadinya, kalau korang nak saman syarikat atas apa-apa kesalahannya, korang cuma boleh saman syarikat je dan bukannya mana-mana anggotanya. Kecualilah, kalau tirai korporat (corporate veil) ni dibuang kerana terdapat beberapa keadaan di mana ahli-ahli syarikat seperti pengarah dapat dipertanggungjawabkan juga. Sebagai contoh, hal ni boleh jadi kalau ada pengarah syarikat yang menggunakan nama syarikat untuk menipu atau buat sebarang aktiviti yang melanggar undang-undang. Hujah-hujah dalam pendengaran di Mahkamah Rayuan Kami sebenarnya dapat peluang untuk temu bual peguam Ezra, Fahri Azzat pasal hal-hal yang ditimbulkan masa perbicaraan di Mahkamah Rayuan. Salah satu perkara utama yang dibangkitkan adalah, dakwaan penerbitan dan pengedaran buku yang dilakukan oleh ZI Publications Sdn Bhd sepatutnya dihadapkan kepada syarikat dan bukannya Ezra sebagai pengarah syarikat. Ini kerana ZI Publications Sdn Bhd adalah syarikat yang mempunyai personaliti undang-undang berasingan. Dan hujah personaliti undang-undang berasingan inilah yang dibawa ke Mahkamah Rayuan untuk kes Ezra Zaid. Mereka berhujah, sebagai seorang pengarah, Ezra tak buat sebarang penipuan atau penyalahgunaan nama syarikat untuk aktiviti haram. Hal ini juga memerlukan supaya tirai korporat diangkat dan untuk dia didakwa secara peribadi. Mereka menegaskan, dakwaan itu sepatutnya dibawa terhadap syarikat. Keduanya, mereka berhujah – Ezra tak sepatutnya dikenakan tindakan, walaupun dakwaan yang dikenakan terhadap syarikat itu juga tidak sah. Ini kerana, dakwaan itu adalah untuk kesalahan agama dan syarikat tak boleh dipertanggungjawabkan atas kesalahan agama. Fahri Azzat, peguam Ezra menyatakan: Jadinya, hujah kami adalah pendakwaan terhadap Ezra Zaid adalah salah kerana pertamanya, tindakan yang mengadukan JAIS adalah perbuatan syarikat ZI Publications, dan keduanya, jika tidak ada alasan untuk mengangkat tirai korporat, Ezra Zaid tidak boleh dan tidak patut secara peribadi bertanggungjawab atas perbuatan syarikat itu. Sebahagian daripada hujahnya ialah entiti korporat tidak boleh didakwa di Mahkamah Syariah kerana mereka tidak mempunyai bidang kuasa ke atas entiti korporat disebabkan ia bukanlah seorang yang boleh menganut agama Islam dan tidak boleh memiliki ciri-ciri kaum, contohnya seorang Melayu. Disebabkan pendakwaan di sini berdasarkan kesalahan agama di bawah Enakmen Jenayah Syariah (Selangor) 1995, ia juga menimbulkan persoalan: Boleh ke sesebuah syarikat mempunyai agama dan didakwa atas kesalahan agama? Walaupun syarikat ada entiti undang-undang sendiri, tapi hampir mustahil untuk ia menganut apa-apa agama. Untuk kesalahan agama di bawah undang-undang tertentu, ia dah dijelaskan secara nyata di bawah Seksyen 1(2) bahawa Enakmen ini hanya terpakai kepada orang Islam sahaja. Oleh kerana syarikat tak boleh menganut apa-apa agama atau ada ciri-ciri kaum seperti individu, Enakmen ini sepatutnya tak terpakai untuk entiti korporat. Ini bermakna, walaupun penerbitan dan pengedaran buku itu dilakukan oleh ZI Publications Sdn Bhd, Enakmen Jenayah Syariah (Selangor) 1995 tak akan terpakai sebab syarikat tak boleh dianggap sebagai Muslim. Tak kisahlah kalau pengarah dan anggota syarikat tu menganut agama tertentu, sebabnya seperti mana yang kita diberitahu – syarikat ada entiti undang-undang sendiri dan berasingan daripada anggotanya. Tak boleh, syarikat tak ada agama Pada 25 September 2019, keputusan dah dibuat bahawa – Mahkamah Rayuan yang menyebelahi Ezra Zaid. Mahkamah dah membatalkan keputusan Ketua Pendakwa Syarie Selangor yang menahan dan mendakwanya, serta memerintahkan ganti rugi ditaksir kerana tekanan jiwa yang dialami oleh Ezra berikutan tindakan JAIS itu kepadanya. Perkara ini menunjukkan yang mahkamah bersetuju dengan hujah-hujah yang dibawa oleh pasukan peguam Ezra, bahawa sebuah syarikat tak boleh mempunyai agama. Pada 29 September 2020, Mahkamah Persekutuan menolak rayuan JAIS, bermakna keputusan tersebut kekal. Dan pada 17 Disember, Ezra diberikan pembebasan penuh oleh Mahkamah Syariah. Tetapi, 180 naskhah buku ‘Allah, Kebebasan dan Cinta’ akan dilucuthakkan dan dimusnahkan. Kes sebegini bukan jadi pada syarikat Ezra je. Sebabnya, kita juga boleh lihat Sister In Islam (SIS) yang berhadapan dengan situasi agak sama tentang fatwa terhadap SIS (yang didaftarkan sebagai syarikat). Mereka ada mencabar Jawatankuasa Fatwa Selangor berkenaan hal ni, kerana mereka didaftarkan sebagai syarikat, dan mendakwa fatwa Selangor tak terpakai kepada mereka. Bagaimanapun, dalam kes ini, hakim kata – disebabkan syarikat dan barisan pengarah SIS adalah Muslim dan aktiviti mereka juga berkaitan dengan undang-undang Islam, fatwa masih terpakai kepada mereka. Walaupun kes ini ada persamaan, ia berbeza dengan kes Ezra sebab SIS secara terang terlibat dalam aktiviti Islamik. Bagaimanapun, SIS dalam perancangan nak buat rayuan tentang keputusan ni ke Mahkamah Rayuan (yang Ezra menang kes). Ezra membangkitkan isu dia didakwa secara salah di bawah kesalahan syariah, sedangkan syarikatnya yang menerbitkan dan mengedarkan buku yang diharamkan itu. Manakala untuk kes SIS, ia unik sebab mahkamah dah ambil kira agama pengarah SIS dan aktiviti syarikat berbanding dengan kes Ezra."
"Malaysian courts can auction and sell your property. Here's how it works Even if you’ve never participated in an actual auction before, you probably would have seen one on TV. An item will be put up with a base price, and a bunch of bidders will ‘compete’ with each other by offering a higher price than the other. The person who bids the highest price will get to buy the item. Auctions can be done for many things, ranging from paintings to cars to houses. They can also be done by any legal institutions or someone with auctioneer’s license. Some time back, we wrote an article on how PDRM can auction items they confiscate from criminals. [READ MORE: Did you know the PDRM are allowed to sell stuff they confiscate from criminals?] In this article, we’ll talk about how courts in Malaysia can also auction things, especially property. Only foreclosed properties get auctioned Now if you’re wondering whether the court can just suddenly take away your property and auction it, worry not. Court auctions for properties only involve houses or other buildings that have been foreclosed—which is when a property is taken away because the bank loans for it weren’t paid. The property will then be put up for sale by the bank as technically, they do own the property until the loans are fully paid off. But foreclosure doesn’t automatically mean the house is up for sale. If a foreclosure notice has been sent to you, and you pay the balance you owe to the bank, you can get your house back. It’s not over until your house is auctioned AND sold off. Now, coming back to auctions... There are two types of auctions Before we specifically jump into court auctions, the first thing to know is that there are actually two types of actions: judicial auctions non-judicial auctions The difference between these two lies in who has the title (legally owns) the property. Judicial auctions—Judicial basically means it has to do with the courts. After a property is bought from the developer, the developer will transfer the title to the person who bought it. This person is expected to continue paying the bank loan for the property until it is all fully paid up. If they missed too many payments, the bank can take the property away and sell it to another person and get their money back. But because the title to the property has been transferred from the developer to the buyer, the bank will need a High Court’s approval before putting the home up for sale. If the court grants this permission, the property will then be included in the list of properties being auctioned by the court. Non-judicial auctions—The title to the property is still with the developer. Because of this, the bank doesn’t need the court’s approval if they want to sell it. They can then auction the house in any other private auction, or using auction companies, or even have their own auction. Malaysian courts have an online system for it Usually, court auctions take place in the court itself with dedicated rooms just for this. There’s a long process to it, but basically it starts with registering for the auction. You should also be serious about buying the property—if you register for the auction but don’t actually bid anything, you could end up getting blacklisted from future auctions for a period of time. On the day of the auction, you’re required to pay 10% of the reserve price of the property first. The reserve price is basically the base price set for the property, and bidders will have to bid amounts higher than that. The 10% will need to be given in the form of a bank draft, and there’ll be a box outside the courtroom to drop this in. After that, the bidding starts and when the highest bidder wins and pays, the title to the property will be transferred to them, and it’s all theirs. But since 2018, court auctions can actually be done online. Through a portal known as e-Lelong, bidders can bid remotely and this makes it easier for those who can’t attend in person. So for example, someone in East Malaysia can easily bid for a property in West Malaysia without actually having to travel. The portal also allows bidders to see all the properties being auctioned, and there’s even a tutorial on how the whole thing works. For now, only four courts have this online bidding system: Kuantan High Court, Temerloh High Court, Ipoh High Court and Taiping High Court. Can auctioned properties be recovered? Generally, once a property has been sold off and legally transferred to another person, it’s theirs to keep. It may be possible to get back a property that was wrongfully sold due to a mistake, but even the chances of that are slim. We recently wrote about a lady whose house had been auctioned and sold off to another person because the developer did not pay the bank loan. [READ MORE: A Malaysian woman lost her home...because her developer didn’t pay the loan] The lady took the case to court, but unfortunately, it was dismissed. She has now made a police report, but the status of that is unknown. While chances of getting back your house after has been sold is small, one possible way of reclaiming it at a later time would be to buy it back from the person who purchased it at the auction. But like we mentioned, if your home has only been foreclosed and not auctioned and sold, then you can still take it back."
"Boleh ke saman pihak pengurusan parkir kalau kereta kita dipecah atau dirosakkan?  [Click here for English version] Dekat Malaysia ni, antara benda yang susah dicari adalah tempat letak kenderaan atau parkir. Boleh dikatakan di mana saja kita pergi, kita perlukan parkir untuk letakkan kenderaan kita khususnya kereta. Tapi, cuba korang bayangkan peristiwa ni jadi kepada korang: Korang parkir kereta di tempat letak kenderaan dan terus pergi ke pasaraya. Sejam lepas tu, korang kembali ke kereta dan korang nampak salah satu cermin kereta korang dah pun dipecahkan. Marah dan terkejut, korang pun pergi ke pejabat pengurusan tempat letak kenderaan dan beritahu apa yang dah jadi. Malangnya, kakitangan di sana kata yang mereka tak boleh buat apa-apa dan tunjukkan kepada korang papan tanda “PARK AT YOUR OWN RISK” atau secara literalnya – “Parkir Dengan Risiko Sendiri”. Hal ni dah semestinya menimbulkan persoalan besar kepada kita semua, sama ada benar atau tak pihak pengurusan tempat letak kenderaan tak bertanggungjawab atas apa yang berlaku terhadap kereta kita? Sebelum menjawab soalan tu, adalah lebih baik untuk kita tengok dulu keabsahan yang pihak pengurusan tempat letak kenderaan katakan tu… Pengurusan tempat letak kenderaan boleh mengasingkan diri mereka dari tanggungjawab Kalau korang selalu pergi ke pasaraya, korang dah pasti pernah nampak papan tanda yang bertulis: “PARKIR DENGAN RISIKO SENDIRI” atau “PIHAK PENGURUSAN TIDAK BERTANGGUNGJAWAB ATAS SEBARANG KEHILANGAN ATAU KEROSAKAN KENDERAAN”. Apa yang kita nampak di sesetengah tempat letak kenderaan ni sebenarnya dikenali sebagai klausa pengecualian. Dalam konteks ni, secara dasarnya pihak pengurusan tak akan bertanggungjawab ke atas sebarang kehilangan atau kerosakan yang berlaku di tempat letak kenderaan semasa korang meletakkan kenderaan korang atau mana-mana kenderaan lain. Klausa pengecualian bukan hanya ada pada papan tanda tempat letak kereta, malah ia juga selalunya akan ada dalam resit, token atau notis yang boleh dilihat orang ramai. Maka secara asasnya, pihak pengurusan tempat letak kenderaan kena memastikan yang klausa ni mudah dilihat oleh orang ramai dan ia mudah difahami. Dalam kes – Malaysian Newsprint Industries Sdn Bhd v Perdana Cigna Insurance Bhd & Ors [2008], mahkamah menyatakan yang klausa pengecualian tu akan dianggap sebagai tak ada bermakna sekiranya ia tak disampaikan dengan berkesan kepada orang ramai. Maknanya, klausa pengecualian memang kena jelas dan mudah difahami oleh orang ramai. Sebelum ni, kami ada tulis satu artikel pasal apa akan jadi kalau kereta korang kena curi di parkir valet. Sebenarnya, undang-undangnya masih seakan sama dan ini apa yang peguam kata untuk senario itu: ""Berapa banyak tanggungjawab yang dapat dielakkan bergantung pada sejauh mana klausa pengecualian. Ini ditafsirkan dengan tegas dan peraturan 'kontra-profarentum' berlaku - sebarang kekaburan dalam klausa akan ditafsirkan terhadap perniagaan yang berusaha untuk mengecualikan tanggungjawab. "" - Peguam korporat, katanya kepada ASKLEGAL Peraturan ‘kontra-profarentum’, adalah peraturan undang-undang kontrak yang mengatakan bahawa setiap klausa yang tidak jelas atau samar-samar dapat ditafsirkan terhadap pihak terlibat (pengurusan tempat letak kereta) yang membuat peraturan tersebut. Perkara ni boleh melindungi pelanggan dari syarikat yang cuba buat pengecualian tanggungjawab atas terlalu banyak perkara, seperti banjir atau kecuaian mereka sendiri, dan undang-undang akan membuat syarikat itu bertanggungjawab atas apa sahaja yang tidak dilindungi. Sebagai contoh, ada tempat letak kenderaan yang mungkin pasang papan tanda bertulis, ""Pihak pengurusan tidak akan bertanggungjawab atas kerosakan kepada kereta anda"". Tapi, mereka tak menyatakan sama ada pihak pengurusan akan bertanggungjawab terhadap kenderaan lain yang rosak. Peraturan macam ni boleh dianggap agak kabur dalam pengertian itu. Oleh itu, dengan menggunakan peraturan 'kontra-profarentum', pihak pengurusan akan dipertanggungjawabkan dalam situasi macam tu. Jadinya, boleh ke kita saman mereka? Dalam senario macam ni, ia mungkin agak sukar untuk buat tuntutan terhadap pihak pengurusan. Melainkan, kerosakan tu berlaku disebabkan pengurusan tempat letak kenderaan tu sendiri. Namun begitu, kalau perkara tu dilakukan oleh orang lain dan pihak pengurusan memang dah buat papan tanda yang mereka tak akan bertanggungjawab atas kecurian atau kerosakan pada kenderaan korang – tak banyak sebenarnya yang korang boleh buat terhadap pihak pengurusan. Jadinya, apa yang kita boleh buat adalah dengan ambil langkah berjaga-jaga untuk pastikan tak ada sebarang barang berharga yang ditinggalkan dalam kenderaan. Selain tu, pastikan juga kenderaan dikunci, diletakkan di tempat yang dirasakan selamat dan bukannya ditempat yang tersembunyi dan tak ramai orang. Tak salah untuk kita berusaha sikit, dari bersedih di kemudian hari. Tetapi, baru-baru ni terdapat satu kes baru yang mungkin akan mengubah keadaan ini. Anda boleh baca artikel tersebut dalam Bahasa Inggeris melalui pautan di bawah. Kami akan menterjemahkannya ke dalam Bahasa Malaysia tak lama lagi. [READ MORE: This case made it easier to sue carparks over a stolen vehicle in Malaysia ]"
"In Malaysia, can your company prevent you from carrying over your annual leave? We’re now approaching the end of the year, and looking at the increase in traffic these days, its safe to say that most people are already on break. But many of us have also been working from home this year, and since we had nowhere to go during the MCO, we would have accumulated a lot of annual leave. At some point, you may have wondered if you can carry all that unused leave to next year where hopefully, you’ll actually be able to use them. And if you did want to carry them forward, can your company stop you from doing so? Now this may seem a like a common-sense article to you, and you might think that leave policies vary from company to company. And for the most part, you’re right because... It still boils down to your company policy At the end of the day, it largely depends on what your company says—what exactly is in your employment contract. For example, your company may tell you that you’re given 15 days of annual leave a year, of which 5 can be carried forward to the next year, and that you are to use those 5 days within the first half of the year. If this is what your contract says and you sign it, then you’re agreeing to this annual leave policy and you cannot expect them to carry forward more days, unless they allow for it. However, your employment contract may also say that any unused leave can be cashed out. If instead of carrying it forward, your company only gives you this option, then you’ll have to go with it. If both options are mentioned in your contract, then your company may have the right to use either one. It’s a different scenario if your contract states both options, but you’re being forced to forfeit all your leave. In this case, your company be reported to the Ministry of Human Resources. Your annual leave is your right Company policies aside, annual leave is actually a requirement set in the law. Section 60F of the Employment Act 1955 says: (a) eight days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of less than two years; (b) twelve days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of two years or more but less than five years; and (c) sixteen days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of five years or more, In essence, it just means you get 8 days of annual leave if you’ve worked with the company for under 2 years 12 days of annual leave if you’ve worked with the company for more than 2 years but less than 5 years 16 days of annual leave if you’ve worked with the company for 5 years of more But an important thing to note about the Employment Act is that it’s for those whose salary are below RM2,000 and those who are in Peninsula Malaysia and the Federation of Labuan. So if you fall outside the scope of this Act, the number of days of leave you’ll be getting will depend on what’s set by your company. However, it’s safe to say it usually around the number of days mentioned above. Either way, all employment contracts should clearly mention the number of annual leave given to the employee. [READ MORE: Can Malaysian companies force you to take annual leave?] Sick leave doesn’t count as annual leave Now that that has been clarified, we’ll look at what exactly constitutes annual leave. Annual leave is what you can take to handle personal affairs or just rest, and technically, you don’t need to tell your boss WHY you’re applying for annual leave. If you have enough days of leave left and you apply on time, your leave should be approved, unless there’s a very valid reason for them to deny it. Annual leave is very different from sick leave, maternity leave or compassionate leave (leave given when an immediate family member dies), and they cannot be used interchangeably. The Employment Act also states that sick leave and maternity leave cannot be considered to be annual leave. If an employee had already applied for annual leave, but had fallen sick that day, or ended up giving birth, then the annual leave will be considered to not have been taken. Section 60F goes on to say: (1B) Where an employee who is on paid annual leave becomes entitled to sick leave or maternity leave while on such annual leave, the employee shall be granted the sick leave or the maternity leave, as the case may be, and the annual leave shall be deemed to have not been taken in respect of the days for which sick leave or maternity leave is so granted. But even for those who don’t come under this Act, your company policy is expected to be fair enough, that your sick leave and annual leave don’t overlap, and that you have enough of both. Employers who don’t give enough annual leave will be penalized While some people may just want to settle for whatever amount of leave is given to them, it’s important to note that employers who don’t allocate enough days for each type of leave can be in trouble. Section 100 of the Employment Act says: (4) Any employer who fails to grant...his employees annual leave...commits an offence, and shall...be ordered by the court...to pay to the employee concerned the ordinary rate of pay in respect of every day of such leave not so granted, the payment so ordered being in addition to the wages payable to the employee for the work done on any such day, and the amount so ordered by the court to be paid shall be recoverable as if it were a fine imposed by such court. (5) Any employer who fails to grant sick leave, or fails to pay sick leave pay, to...his employees...commits an offence, and shall…be ordered by the court...to pay to the employee concerned the sick leave pay for every day of such sick leave...and the amount so ordered by the court to be paid shall be recoverable as if it were a fine imposed by such court. What that huge chunk of text above says is basically this: If your company doesn’t grant you annual leave which is your right, the court will make them pay you compensation for each day of leave that you should have gotten, but didn’t get. This applies to both annual leave and sick leave. So all in all, the answer to the main question is, your company cannot prevent you from carrying over your leave if your contract already allows for it. If, however, the contract had also mentioned other options such as cashing out extra leave, your company can go with that instead of letting you have a lot more leave in the following year."
"A Malaysian woman lost her home...because her developer didn’t pay the loan Just earlier this week, there was an article by Free Malaysia Today detailing the story of a lady whose house was recently sold off by the bank...even after she already got the keys to them. If you haven’t read that article yet, in short, what happened was that she had paid the full sum to the developer, but the developer didn’t pay the bank that money. We’ll get into a bit more details below, but basically, because the loans weren’t paid, the house was foreclosed. Understandably, many readers were confused as to how this was even possible, especially since it wasn’t the lady’s fault at all. She had kept to her part of the bargain and paid whatever was owing, but now, her house is no longer hers. To better understand how something like this can happen, we spoke to a lawyer. But before we get to what he told us, let’s go back to the story itself. She paid the developer in full So according to the news articles that we read, the lady had bought a home worth RM78,850 in 2001. From that time up until 2005, she paid this amount in batches to the developer in cash, and eventually it was all paid off. Before a housing project begins, the developer will take a loan from the bank to finance it. The developer is then supposed to pay the loan in stages using the payments made by the buyers. These kind of payments are known as progressive payments, where the buyer pays the developer first, instead of directly to the bank. So this is how it works: Payment from buyers ➜ developers ➜ bank Unfortunately, in this lady’s case, the developer was getting the money from the her, but not paying the bank. The lady of course, did not know this. Fast forward to 2009, she finally found out what was happening. The bank then asked for RM100,000 in addition to interests and other costs, to redeem the house. She had no idea this existed, until she was actually asked to pay it. The lady showed all the proof of payments she had made to the developer, but the bank was not able to help her as they had not received any payment at all. The house was recently sold to someone else after being auctioned for years. The lady, the original owner, then took both the bank and the developer to court, but the case was dismissed. “Jayainthy said that the case was heard in chambers and claimed it was summarily dismissed “without any reason”. Instead, she was ordered by the court to pay RM1,500 in costs to RHB Bank’s lawyers on Sept 13, 2018” - Free Malaysia Today, 13th December 2020 There isn’t much information on what actually went on in court, but as mentioned above, instead of getting any compensation, SHE had to pay a sum to the bank. She also complained to the National Housing Department, as well as the Consumers’ Association of Penang, but there has been no response from the developer. After reading all this, you might have a few questions, such as how the developer seemed to have gotten away, or how the bank got the right to sell the house off. So here’s what the lawyer told us... Make sure to read your loan agreements When you buy a new house, you would sign many different agreements with the housing developer and the bank. In one of those agreements, one clause would say that in the event the bank does not get their payment, they have the right to auction your house—foreclosure, basically. The thing is, this clause does come with a safety net—your lawyer can write a Letter of Disclaimer to the bank. This letter would let the bank know that your unit or home should be excluded from an auction or sale, if the developer failed to pay the bank. However, this exclusion is only for a period of time, and you’ll need to settle your issue with the bank by then. But at least, it prevents the bank from immediately putting your house up for sale. So in simpler terms, it just means that if you don’t have such a letter issued by your lawyer, the bank CAN take your property away. In this lady’s story, it’s very likely the case that her lawyers did not send out this Letter of Disclaimer. There’s no fixed template as to how this letter should be—it should just say that your home is to be excluded from any foreclosure or sale proceedings. We did get to see a sample letter, but unfortunately, we can’t include that here for privacy reasons. What can you do in a case like this? Like we mentioned earlier, the lady did file a case in the High Court, but it didn’t go through. As of 16th December 2020, the latest update was that she also filed a police report against the developer. Once we have more information on this, we’ll update the article. We asked the lawyer if there’s anything else the lady could do to get their house back. While what the bank did was legal because the agreement allowed for it, the lady can actually take action against the lawyers who handled the housing transaction—they can be sued for negligence. Negligence is basically a civil wrong where a person who had the duty to care for another person, failed to do their duty. Because of this, the other party suffered some damage. In this specific case, the lawyers can be said to have had a duty of care to their clients, to ensure that their house is not taken away. They can be said to have been negligent in not issuing the Letter of Disclaimer. While this is one case you may have heard of, it’s actually not all that uncommon. And as we said earlier, it’s legal for the bank to do what they did. The one way to ensure this doesn’t happen is to read your housing and loan agreements when buying a new house, and get your lawyer to issue a Letter of Disclaimer to the bank. As for what would happen to the developer, it’s unclear what the status is at this point. We’ll just have to see what happens after the police investigates the case, or if a new case will be filed against them in court."
"Ada ke undang-undang yang lindungi anda kalau majikan paksa berhenti kerja? [Click here for English version] Macam inilah, korang seorang pekerja yang baik. Datang kerja tepat pada waktu, penuhi sasaran syarikat dan senang cerita tak ada sebablah nak pecat korang. Tapi pada suatu hari, korang ada krisis pula dengan bos. Krisis tu bukan biasa-biasa, sampaikan bos korang tu cari jalan nak singkirkan korang dari syarikat. Tapi bos korang ni bijak, dia tahu yang dia tak boleh pecat korang macam tu je, jadinya dia gunakan taktik supaya korang rasa terbeban dengan kerja, sampaikan ke satu tahap korang dah tak boleh tahan dan terpaksa pilih untuk letak jawatan. Mungkin dia tahan gaji korang, atau tukar skop kerja yang korang tak suka. Korang nampak rancangan dia ni, tapi apa boleh buat? Korang cuma pekerja biasa dan dia tu bos. Tapi betul ke tanggapan korang tu? Ada tak sesuatu yang korang boleh guna untuk cabar tindakan bos korang tu? Sebenarnya ada, dan ia lebih tinggi dari jawatan bos korang, iaitu… Ia dipanggil sebagai Pemecatan Konstruktif Dalam maksud mudah, pemecatan konstruktif terjadi bila mana korang terpaksa meletakkan jawatan kerana majikan korang dah melanggar terma penting kontrak pekerjaan korang. Pemecatan konstruktif adalah konsep common law (diambil dari keputusan mahkamah), dan ia terpakai di Semenanjung Malaysia, Sabah dan Sawarak. Bercakap soal hak pekerja, Akta Perhubungan Perusahaan 1967 dan Akta Kerja 1955 adalah akta yang biasanya dirujuk oleh pekerja kalau nak saman majikan. Tapi, kedua-dua akta ni tak nyatakan secara khusus dalam memberi definisi pemecatan konstruktif. Bagaimanapun, tuntutan terhadap pemecatan konstruktif boleh dibuat berdasarkan Seksyen 20(1) Akta Perhubungan Perusahaan 1967, yang menyatakan – tiada pekerja yang boleh ditamatkan perkhidmatan tanpa sebab dan alasan (tiada terjemahan rasmi, diterjemahkan oleh Asklegal): “Jika seorang pekerja, tanpa mengira sama ada dia adalah anggota kesatuan pekerja atau sebaliknya, menganggap bahawa dia telah diberhentikan tanpa sebab atau alasan oleh majikannya, dia boleh membuat representasi secara bertulis kepada Ketua Pengarah supaya dikembalikan semula bekas pekerjaannya; representasi itu boleh difailkan di pejabat Ketua Pengarah terdekat dengan tempat pekerjaan yang mana pekerja itu diberhentikan kerja.” Faktor-faktor tertentu yang diambil kira dalam pemecatan konstruktif sebenarnya agak luas untuk djelaskan, jadi di sini ada beberapa kes yang boleh bagi gambaran lebih baik tentangnya: Majikan dah memindahkan pekerja ke jawatan yang lebih rendah tanggungjawabnya dan tidak sesuai dengan peranan dan status pekerjaan asal pekerja (secara asasnya bukan pekerjaan yang dia diupah untuk melakukannya) – Watertec (Malaysia) Sdn Bhd v Lee Yoke Peng [2003] 1 ILR 866 Majikan tak mahu bayar gaji pekerja tepat pada masanya (selepas tempoh yang dinyatakan dalam kontrak pekerjaan) – Lee Cheong Company Sdn Bhd v Lim Suw Koong [2003] 2 ILR 135 Tuduhan palsu yang kata pekerja dah buat salah laku – Citec International Sdn Bhd v Selvaraja N Gandhi [2003] 2 ILR 691 Tapi apa yang pasti, ni tak bermaksud yang korang boleh terus saman bos korang atas alasan pemecatan konstruktif, sebab dia suruh korang buat kerja susah atau tak nak bagi gaji korang naik, lepas korang minta. Kunci untuk membezakan apa tu pemecatan konstruktif atau tak, bergantung kepada sama ada 2 faktor utama ni terbukti. Ada 2 perkara yang korang perlu buktikan, sebelum saman Mahkamah Malaysia secara umumnya mengiktiraf dua elemen utama yang diperlukan oleh pekerja untuk saman majikan kerana pemecatan konstruktif. Jadinya, adakah majikan dah buat pelanggaran kontrak pekerjaan korang? Adakah amalan majikan korang melanggar kontrak tu dikira serius? – Contohnya seperti gangguan seksual, gagal membayar gaji dan menurunkan skop kerja korang. Secara amnya, ia dah cukup memenuhi elemen pertama ni. Adakah korang meninggalkan kerja sebaik sahaja selepas majikan melakukan tindakan yang tak boleh diterima? – Keperluan ni akan dipenuhi kalau korang meletakkan jawatan serta merta kerana korang dah tak tahan dengan tingkah laku majikan. Tapi, kalau korang buat keputusan untuk “tetap di sana” walaupun majikan dah berkelakuan tak wajar, maka tuntutan korang untuk pemecatan konstruktif mungkin akan gagal. Tapi sebelum kita teruskan, kitorang dalam artikel ni banyak gunakan perkataan “majikan” dan “bos”. Bagaimanapun, dalam konteks undang-undang, korang akan menyaman pihak yang korang masukkan dalam kontrak… nama yang ada dalam kontrak. Sebagai contoh, Imaginary Syarikat Sdn Bhd ambil korang bekerja sebagai pembantu peribadi En. Ahmad. Korang sebenarnya nanti akan saman Imaginary Company Sdn Bhd, walaupun En. Ahmad yang buat hidup korang macam dalam neraka. Ini kerana, Imaginary Company Sdn Bhd dianggap sebagai entiti sah (macam orang) di bawah undang-undang yang korang tandatangan dalam kontrak pekerjaan korang tu. Dan tindak tanduk pengurus akan dikaitkan dengan syarikat. Samalah kalau En Ahmad upah korang dengan duitnya sendiri, maka dialah orang yang korang akan saman. Jadi… macam mana nak mulakan saman (dan apa yang korang boleh tuntut)? Andaikanlah yang 2 elemen di atas tu dah dapat/telah dibuktikan, inilah jangkaan prosesnya nanti: Pertama, korang kena – sama ada pergi ke Jabatan Hubungan Perusahaan atau tulis surat kepada Ketua Pengarah Perhubungan Perusahaan (lebih maklumat di sini) dalam masa 60 hari selepas korang meninggalkan syarikat atau dipecat. Seterusnya, Ketua Pengarah Perhubungan Perusahaan akan cuba dapatkan korang dan majikan korang untuk mencapai persetujuan bersama (perdamaian). Kalau hal ni tak jalan, Ketua Pengarah Hubungan Perusahaan akan merujuk kes itu kepada Menteri Sumber Manusia, yang kemudiannya boleh merujuknya ke Mahkamah Perusahaan. Di sinilah korang dan majikan kena menegakkan hujah masing-masing dan keputusan akan diberikan. Pilihan pampasan yang selalunya diminta adalah pengembalian semula pekerjaan atau pampasan kewangan. Tapi, disebabkan hubungan antara pekerja dan majikan memang dah tak baik, agak tak mungkin yang pekerja tu akan kembali bekerja semula. Jadinya, pilihan yang lebih popular adalah pampasan kewangan untuk kes-kes macam ni. Untuk kesimpulannya, setiap pekerja dan majikan mestilah kena ada hubungan yang baik untuk buatkan suasana kerja lebih harmoni. Sementara korang ada hak tertentu sebagai pekerja, tak semua cabaran atau kena marah dengan bos tu boleh dianggap sebagai cubaan nak singkirkan korang. Ia boleh je jadi disebabkan faktor masa dan keadaan sekeliling. Makanya, mungkin lebih baik kalau kita semua tengok dalam perspektif yang lebih luas, dan tengok jugalah kontrak pekerjaan korang tu. Semua pertimbangan dan keputusan korang boleh dirujuk darinya."
"Can Malaysian companies fire employees for being absent from work without notice? Picture this: you wake up one morning with a high fever, and you’re unable to get out of bed. You’re supposed to be in at work in two hours, but you’re feeling so weak that you just stay in bed. You can’t reach for your phone to let your boss know that you won’t be coming in for the day. But the next day, you’re still very sick, and you so only go back to work on the third day. You go into the office, and you find a letter on your desk. The letter says that you’ve been terminated due to being absent for two days in a row without notice. You try and explain to HR that you were unwell, but they tell you that you’re at fault for failing to inform them. So as you’re sadly packing up to leave against your will, you wonder if you’re actually in the wrong here. Generally, you’re required to inform them Just like how there’s an Act for most things that affect our lives in Malaysia, there are also laws for employers and employees. One of them is known as the Employment Act of 1955 (EA 1995). This Act details the the general rights and obligations of both workers and bosses, and it ranges from salaries to terminations. It also tells an employer what happens when an employee is absent without notice. Section 15 of the Act says: (2) An employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer, unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence. So it’s pretty straightforward, but the crux of it is that if you, the employee, can’t come in to work, you’re supposed to let your boss know. And if you’re missing for two days in a row, this can mean that you’ve breached your employment contract. Your employer then can terminate you on these grounds, since breaking a contract has legal repercussions. However, an important thing to note about this Act is that it only applies to employees whose salaries are RM2,000 and below. So if you don’t come under this Act, then it’s best to check with your HR department on what your company policy is on absent employees. But a case has now sort of changed this rule Due to the general position, it’s not surprising to know that in most cases, employees who are absent will get in trouble for not showing up. But some time ago, a rather unique case was heard, where the employee was absent from work, but the court judgment favoured him instead of the employer. Othman bin Ali v Telekom Malaysia Berhad was a case that happened in 2016, but it hasn’t been widely reported. In that case, the employee had been absent and was subsequently terminated. The employee then took the case to court for being terminated. But there, instead of following the general rule in Section 15 of the EA 1955—where the employee must inform the boss if he is to be absent—the court said it was the employer’s job to find out why the employee was missing. This was considered to be a big deal, because it meant that an employer can’t just fire an employee easily for not showing up—they’ll need to know the reason first, and they need to make the effort to know this reason. Othman’s case gets a little more complicated, as it was later discovered that him being absent wasn’t the real reason he was fired. Apparently, he had not been showing improvement in his work. But instead of firing him on those grounds, the company said that he wasn’t coming in to work. Now, this part may not exactly be relevant to this article, but the bottom line is this: Employers cannot just use absenteeism to sack an employee. There has to be more to the story, such as misconduct, conflict of interests, and so on. So...can you easily ponteng work now? This decision doesn’t mean that you can just skip work for days and still keep your job, of course. As mentioned earlier, many terminations due to absenteeism from work are justified. The circumstances of each case will be looked at, such as the real reason for absenteeism and the general track record of the employee. So as an employee, as much as possible, you should still let your boss know if you can’t go in to work. If you don’t show up, and you don’t have a valid reason for it, your boss does have the right to make you leave. But in the event that you’re really sick, or you have no way to contact them because you’re stranded somewhere, you have the right to explain yourself instead of just having to lose your job. And again, your employer is also expected to make some effort to find out what happened to you. If you or someone you know gets terminated for being absent, but you had a good reason for it, a case can be filed in the Industrial Court. However, do note that you have only up to 60 days from the time you were fired to file this case."
"M'sian telcos were fined RM700k twice this year, for fake prepaid SIM registrations When we hear about telco companies getting fined, it’s usually for providing unsatisfactory services. This was what happened in July, as 5 telco providers were fined a total of RM4.6 million for providing unsatisfactory services during the MCO. Recently, our telco companies were fined again, but this time it wasn’t for bad service. It was for registering prepaid SIM cards without proper verification. They were fined twice for it this year Back in October, 6 companies were compounded a total of RM700,000 for failing to verify prepaid SIM card registrations in 2019. This is an offence under Section 127 of the Communications and Multimedia Act (CMA) 1998. The punishments are listed under Section 242, and offenders can be fined up to RM100,000, jailed not more than two years, or both. Total amount of fines: U Mobile Sdn Bhd - 5 compounds worth RM250,000 Celcom Axiata Sdn Bhd - 3 compounds worth RM150,000 Tune Talk Sdn Bhd - 3 compounds worth RM150,000 Maxis Broadband Sdn Bhd - 2 compounds worth RM100,000 YTL Communications Sdn Bhd - 1 compound worth RM40,000 Tone Plus Sdn Bhd - 1 compound worth RM10,000 Recently in December, there was another round of compounds given out, this time totalling RM750,000. Total amount of fines: Digi Telecommunicatons Sdn Bhd - 5 compounds worth RM250,000 Maxis Broadband Sdn Bhd - 4 compounds worth RM200,000 U Mobile Sdn Bhd - 3 compounds worth RM150,000 Tune Talk Sdn Bhd - 2 compounds worth RM100,000 YTL Communications Sdn Bhd - 1 compound worth RM50,000 In total, MCMC has issued 70 compounds this year worth RM3.45 million. This is 19% more than compounds issued in 2019 for the same offences, which is RM2.9 million. Since 2006, users are required to register their SIM cards using original identification, such as a MyKad or passport. A photocopy of their ID will not be accepted. Users are also not allowed to have more than 5 SIM cards registered under one name. MCMC needs to make sure that the information for prepaid registration is legit, because... It’s mainly used for criminal acts Not registering your full information for a prepaid SIM might not seem like a big deal. Some of you might feel it’s justified if you want to maintain your privacy. But in most cases, having an unregistered SIM does more than just protect someone’s personal information. As we can see, unregistered SIM cards are mainly used for criminal purposes. Back in 2006, there were three simultaneous bombings in Songkhla, Thailand. It was reported that they were detonated using mobile phones, and quite possibly using prepaid SIM cards. And just recently in September, nine men were arrested on suspicions of falsely registering prepaid SIM cards. In these cases, the SIM cards will usually be sold to other crime syndicates such as unlicensed moneylenders or Macau scammers. They aren’t just used to obscure their identity when calling unsuspecting victims – this also allows them to avoid being detected by the authorities. And the numbers are much bigger than you might think. In October this year, nearly 1.4 million numbers were detected to have dubious registration details. Of the total, 920,217 lines have been terminated, while the rest had been updated with valid information. So this rule isn’t just to get your personal information. It’s also to prevent criminals acts from happening. You can report these cases to MCMC Most of these cases are detected through audits done by MCMC, where they’ll verify the information with JPN (Jabatan Pendaftaran Negara). But if you ever feel something suspicious is happening at a telco outlet, or you know someone providing these types of SIM cards, you can lodge a report online with MCMC’s Consumers Forum of Malaysia (CFM). Online portal: http://www.complaint.cfm.org.my Hotline: 1800-18-2222 Email: aduan@cfm.org.my However, if you’re the victim of a phone scam, this would most likely be under the jurisdiction of either Bank Negara Malaysia or PDRM. This page shows which of the many agencies you should go, depending on the issue."
"Can Malaysian condo managements stop you from renting out your unit? Let’s say that you recently bought a unit in a newly built condo. The location is great, the facilities are aplenty and it’s the place you’ve always dreamt of having. But because you’re been really busy, you haven’t had the time to move in to your new home. To help pay for the monthly loans, you decide to rent out your place for the time being. You find a good tenant, you sign a tenancy agreement with them, and now they’re all set to live in your place. But a few days later, your condo management plasters a letter on the notice board stating that no rentals are allowed for the first three years. So, can they actually come up with rules like this? Strictly speaking, the answer is no The law that governs strata properties, meaning all high-rise and gated properties, is known as the Strata Management Act 2013 (SMA). Buyer and developer rights, condo management duties and even home ownership rules are covered in this Act. Section 70(5) of the Act says: No additional by-law shall be capable of operating; (a) to prohibit or restrict the transfer, lease or charge or any other dealing with any parcel of a subdivided building or land; and In simpler words, this means that a condo management cannot come up with a rule that prevents the owner from transferring the property to another person, or even leasing (renting) it out. But this is just the general rule that can be found in a major set of property laws, which is the SMA. Like all things, there can also be exceptions to this rule. Some condo by-laws may prevent certain tenancies Before we explain this part in a bit more detail, let’s look at what by-laws are. Just like how there are major laws that apply all Malaysian residents, by-laws are more minor laws that apply to smaller groups of people. They are usually made by your Majlis Perbandaran or a corporation you belong to, so each of these groups would have their own by-laws. Similarly, your condo management may also have a set of by-laws that all residents are to follow. For example, your condo by-laws may say that if you don’t pay your maintenance fees for more than 3 months, your access card may be barred. Or if you park in someone else’s parking lot, they can clamp your car. In the same way, they can also have by-laws that prohibit rentals which disrupt the peace or security of the place. This can include tenants that are noisy, dirty, inconsiderate and so on. We recently wrote on one such case. [READ MORE: A Msian man was sued for RM50K for causing cracks and leaks in his neighbour's house] In this case, the owner had rented out their home to students who were very noisy, even in the wee hours of the morning. The other neighbours sued the owner and the management. The management was sued for not taking action against the owner and his tenants after many complaints were made. The management was then made to pay compensation to the other neighbours for the inconvenience. To avoid problems like this, your management may put a restriction on who you can rent to, especially if the tenants are continuously problematic. They can ban short-term rentals We previously wrote an in-depth article on how your local town council or municipality can prevent you from using your home as an Airbnb. [READ MORE: Your Majlis Perbandaran can fine you for turning your house into an Airbnb] But it doesn’t stop there. You can also be prevented from turning your home into a homestay if your condo management isn’t okay with it. The reasoning behind this is that short-term rentals such as Airbnbs and homestays allow anyone to stay in your home, and most of the time, there are no background checks on them. This could make it unsafe for other residents in the condo. The other concern is that Airbnbs and homestays may greatly affect the hotel industry in some places. For instance, Airbnbs are illegal in Sabah, and Penang is working towards banning homestays in condos. So while long-term rentals may be a lot harder for condo managements to prohibit, they can stop you from using your home for short-term rentals. But before you rent out your unit, go through your condo by-laws just to make sure you’re not breaking any rules. When your condo has their annual general meeting, which is a legal requirement, be sure to attend that as well. Any new rule that is passed by the management must have the approval of the majority of the residents. So if your condo is trying to impose a rule which most people aren’t agreeing to, you may have a case against them. [READ MORE: 5 steps to take when you want to sue your condo developer in Malaysia]"
"Boleh ke kita gugurkan perkataan 'bin' atau 'binti' dalam kad pengenalan?  [Click here for the English version] Selama kita hidup ni, memang setiap dari kita (Melayu-Islam) akan ada satu persamaan, iaitu mempunyai perkataan ‘bin’ atau ‘binti’ dalam nama. Untuk masyarakat India pula, mereka akan ada perkataan ‘a/l’ (anak lelaki) atau ‘a/p’ (anak perempuan) dalam nama mereka. Bagaimanapun, muncul juga persoalan di kalangan masyarakat sama ada wajib atau tak untuk letak perkataan-perkataan ni dalam kad pengenalan (MyKad). Jadinya, kami buat kajian untuk tahu lebih pasal perkara ni. Menariknya, dari kajian kami tu, rupa-rupanya letak perkataan ni bukanlah wajib atau keperluan yang perlu dipatuhi. Ini kerana, dalam keadaan tertentu – kita sebenarnya boleh gugurkan perkataan-perkataan ni dalam MyKad. Kita boleh pilih untuk tak mahu letakkannya dalam nama Untuk menjawab persoalan ini, kita mungkin boleh rujuk satu kenyataan daripada Kementerian Dalam Negeri pada 2017. Melalui kenyataan tu, dimaklumkan bahawa menambah perkataan a/l dan a/p dalam nama adalah perkara biasa yang dilakukan oleh ibu bapa berbangsa India. Akan tetapi, ia bukanlah kewajiban. Ini bermakna, ibu bapa India boleh memilih sama ada nak letak atau tak mahu letak perkataan itu dalam nama anak mereka di sijil kelahiran. Bagaimanapun, disebabkan perkara itu menjadi kebiasaan sejak sekian lama – pihak JPN akan dapatkan pengesahan dulu dari ibu bapa sama ada mereka nak gunakannya atau tak. Begitu jugalah kepada masyarakat Melayu-Islam yang mana ibu bapa boleh menggugurkan perkataan bin atau binti pada sijil kelahiran anak mereka. Walaupun begitu, ia taklah berlaku secara automatik, sebabnya masih ada proses memilih. Bila mana seseorang kanak-kanak Islam itu dilahirkan, ibu bapa akan diberikan draf sijil kelahiran untuk mereka isi. Biasanya, anak tu nanti akan dapat bin/binti dalam sijil. Untuk menggugurkan perkataan itu, ibu bapa kena buat permintaan dengan pendaftar, sekiranya mereka ada sebab yang munasabah untuk berbuat demikian. Apa sebab yang munasabah gugurkan perkataan ‘bin’ dan ‘binti’? Untuk dapatkan pencerahan, pihak kami pun hubungi JPN (Jabatan Pendaftaran Negara) dan menurut jurucakapnya – permintaan menggugurkan perkataan bin dan binti ni selalunya dilakukan oleh mereka yang nak berhijrah ke luar negara. Sebabnya, sistem penamaan di negara-negara bukan Islam selalunya menggunakan nama keluarga dan bukannya nama bapa mereka. Ada juga kes di mana terdapat perkahwinan campur antara seorang wanita Muslim dan seorang mualaf. Kalau mualaf tu memilih untuk tetap menggunakan namanya, ibu bapa mungkin akan memilih untuk anak mereka mempunyai nama belakang si bapa. Ada juga yang buat keputusan tu kerana pilihan peribadi. Bila kami cuba cari apa yang ada atas talian, ada satu cerita di Reddit ni di mana terdapat orang Melayu-Islam yang tak ada bin atau binti dalam nama mereka. Namun begitu, disebabkan mempunyai bin/binti memang dah jadi kebiasaan, akan ada perasaan nak tahu di kalangan masyarakat kenapa mereka pilih untuk tak mahu letak bin/binti. Contohnya, mungkin ada segelintir masyarakat yang sangka orang tak ada bin/binti sebagai anak luar nikah. Di Malaysia, anak luar nikah tak boleh ada berbin atau berbintikan nama ayah kandung mereka. Dalam kebanyakkan kes – mereka ni akan dibin/bintikan Abdullah. Jadinya, walaupun kanak-kanak tadi tu sah taraf – memilih untuk tak mahu letak bin/binti mungkin boleh mendatangkan fitnah atau khabar angin yang tak baik. Seperkara lagi, mempunyai nasab (bin atau binti) juga akan memudahkan keadaan. Ini kerana, nasab sangat penting dalam perundangan syariah, terutamanya dalam hal faraid (pewarisan harta). [BACA LAGI: Kanak-kanak dengan nama ""Bin Abdullah"" mungkin tak perlu gunakannya lagi selepas ni] Kita boleh mohon untuk ia digugurkan dari MyKad Jika korang masih nak gugurkan perkataan bin, binti, a/l atau a/p dari MyKad atau MyKid anak, ini dia tatacaranya: Dapatkan surat sumpah: Pergi ke pesuruhjaya sumpah untuk buat pengisytiharan yang korang nak perkataan tu digugurkan dari nama sendiri atau nama anak. Korang akan diminta untuk isi borang (yang rupanya macam ni) dan ia akan ditandatangani oleh pesuruhjaya. Pergi ke JPN: Korang boleh pergi ke mana-mana cawangan JPN terdekat dan kata nak buat Permohonan Pindaan Butiran Kad Pengenalan. Isi borang: Korang nanti akan diberikan borang KP.16. Isi borang tu dan sertakan sekali dokumen-dokumen sokongan seperti surat sumpah tadi. Korang juga kena bawa sijil kelahiran, MyKad dan kalau memohon untuk anak, sila bawa MyKad ibu bapa sekali. Jelaskan kenapa: Mereka nanti akan tanya kenapa korang nak buat macam tu, jadinya bagilah penjelasan yang baik dan munasabah. Untuk orang Melayu-Islam, selalunya mungkin mereka kena tunggu seketika selepas membuat permohonan. Bila kami tanya kepada JPN, mereka kata permohonan orang Islam untuk menggugurkan bin/binti dari nama mungkin akan mengambil masa disebabkan permohonan itu perlu disemak. Tapi, kalau mereka dapat sebab yang kukuh – mereka akan benarkan. Untuk masyarakat India pula, nampaknya prosesnya agak mudah seperti mana yang diceritakan oleh salah seorang pembaca kami ni: Jadinya, ada ke di kalangan korang yang terfikir nak buat macam ni?"
"5 traffic offences you didn't know exist in Malaysia If you drive a car, you would have learnt a few road rules when taking your driving exam. But even if you don’t, almost all of us know that road users need to be mindful of a lot of things to ensure their own safety and that of others on the road. It’s common knowledge that the abang and kakak polis trafik can issue summons for speeding, beating the red light, turning without indicating, and so on. But Jabatan Pengangkutan Jalan (JPJ) actually has a whole handbook of other traffic rules that can get us saman-ed if we don’t follow them. Some of them are common sense, like the examples we mentioned above. But there are also some minor ones that you might not have heard of, or you didn’t think they were actually laws. 1. Parked with the engine running Some of us might have innocently done this at some point of our lives, and even our parents might have left us in a car with the engine running for a few minutes. This is actually something that can incur a hefty fine—RM300 to be precise. It might seem okay to have your car’s engine running while it’s parked. After all, it’s parked. However, there are two issues with this. One, if the brake isn’t pulled up properly, the car can move. Secondly, cars that are idling for too long can lead to carbon monoxide poisoning. This happens when toxic fumes from a car’s exhaust enter the car as it has been idle for some time. So if a child or someone else is left alone in the car, it can turn fatal. There have been a large number of cases of this in the last few years, with the most recent one happening less than 3 months ago. So the next time, remember to switch your engine off, even if you’re leaving your car for five minutes. 2. Passengers not wearing seatbelts in the rear seat You would already know that the driver and front seat passenger would need to wear their seatbelts while travelling. But a lesser-known fact is that even those sitting at the back of the car need to belt up. As of 2007, the Road Transport Act 1987 made this mandatory, and those who fail to do this can be fined up to RM300. However, like we said, it’s not widely known, and therefore not many people practice this. While it’s often assumed that those sitting in the front would be injured the most during an accident, those sitting at the back can also be severely injured if they don’t wear a seatbelt. Recently, there was the case of a 8-year-old who fell over a flyover after being flung out of a car window. This girl was not wearing a seatbelt. So even if you don’t see a lot of people doing it, it’s best to always wear your seatbelt no matter where you’re sitting. You can keep yourself safe AND avoid getting fined. [READ MORE: 5 different types of saman that you can get for being a bad driver] 3. Not putting infants in car seats You might have heard of parents buying car seats for their children fairly recently, but many organizations and associations have been pushing for them to be made mandatory for years now. However, it was only in January 2020 that it became law. To help people get used to this, though, JPJ didn’t issue any summonses for this offence up to June 2020. In an article by The Star, The Director General of the The Malaysian Institute of Road Safety Research said that car seats can reduce the risk of death by 71% for children. So if you’re a parent to a child under 12—as this is the recommended age—do make sure that you have car seats for them, or you could get stopped by the traffic police. 4. Lights and wipers that don’t work At some point, you would have seen cars driving around with a light that doesn’t function, or windshield wipers that aren’t doing their job in heavy rain. But while one tiny light malfunctioning and one wiper not working may not seem like a big thing compared to other parts of the car, it still can get you in trouble. Car lights—specifically your third break light—that don’t function, can set you back by RM150. Meanwhile, wipers that are spoiled can get you fined up to RM100. One way to prevent this is by thoroughly checking your car every now and then and making sure that it’s all working fine. 5. Not displaying your license plate So this is something a lot of people might already know, but we still thought it’s worth mentioning. We all know why license plates are important—they basically work as a car’s identification. But even if you might have never hidden your whole plate outright, you can also get in trouble if the plate is incomplete. This might happen if you had hit into something and the whole plate came off or it broke, or a number or letter came off it. So again, check your car frequently to ensure everything is as it should be...or you can be fined up to RM300. There are obviously many more items that are on JPJ’s list of things you can get penalized for, and we may even do a part two of this article to cover more of those. But in the mean time, make sure to be a responsible driver so you don’t end up collecting a whole lot of samans. And if you feel a saman isn’t a big deal and that you can just ignore them...you might want to read the article below: [READ MORE: Is it really okay if you don't pay your parking saman in Malaysia?]"
"Do you have to pay tax to LHDN if you win the lottery? Games involving luck and chance have always been around. You’ve probably played some of them, whether it be the lottery, lucky draws, or even games that involve dice like Monopoly. Some people do it religiously, buying a lottery ticket every week. Some even devote their life to entering competitions, doing nothing but staying home and winning competitions. (Necessary disclaimer: Asklegal does not promote buying lottery.) But if lady luck looks your way and you do win a prize, you’ll probably be quite overjoyed with it. Then after you’re done thinking how you’re going to spend your money, you’ll probably realise the second question that will come up. There are only two certainties in life: death and taxes. So if you happen to win the lottery (from licensed gaming places), or a prize in a competition, will LHDN tax you for it? First thing you should know is that... LHDN taxes all types of income In general, LHDN will tax any income you get, but only if you income passes a certain threshold. If you earn at least RM34,000 per year (roughly RM2,888.33 per month) after your EPF deductions, you will need to declare your income and file your taxes. When LHDN says income, it literally means all income. It doesn’t matter whether you get it from working in an office, as a freelancer, selling goreng pisang, or if you’re an influencer – through collaborations. [READ MORE: Do Malaysian influencers have to pay tax?] Cash isn’t the only thing that will be taxed, as LHDN also treats payment-in-kind as income. Let’s look at an example: suppose you did some work for a client. Instead of paying you in cash, your client gives you a holiday trip at a resort instead. That holiday trip is now taxable because it’s considered as income from your job. You’ll then have to find out the market value of that trip, then declare it accordingly when you file your taxes. In case you’re now worried your hard-earned winnings at lottery will now be taxed, don’t worry because in Malaysia... Prize money is yours, all yours Cash won from winning the lottery will not be taxed. This is because anything you get through inheritance, luck, or chance is considered windfall or capital gain and is not taxable. Besides the lottery, this also includes cash and prizes won from TV, newspaper or online competitions. If you’re a professional athlete, you also won’t be taxed for winning competition prize money. And if the government decided to reward you with a house and car for your achievements, you won’t have to pay income tax for those either. Understandably, some of you might declare it in your income tax because you’re worried it might look suspicious. But as long as you have proof of your winnings, you don’t have to declare it. And even if you did do so, the nice people at LHDN will just tell you that it’s not necessary. [READ MORE: Is it illegal for Malaysians to gamble at home?] But make sure you declare every other source of income, because... You can be punished for avoiding income tax Prize winnings isn’t a loophole though, because any income you earn must be declared. So if you’re thinking of getting your employer to give you a ‘prize’ instead of payment, you’ll probably get more trouble than it’s worth. Under Section 113(1) of the Income Tax Act, unless you’ve made an honest mistake, giving incorrect information about your income can get you fined between RM1,000 - RM10,000 plus 200% of the undercharged tax. Attempting to evade tax will also get you an even higher punishment. Under Section 114, intentionally avoiding taxes can get you fined between RM1,000 - RM20,000 plus 300% of the undercharged tax. [READ MORE: 5 common Malaysian tax offences you don’t want to accidentally commit] So if you do win, you don’t have to declare it or pay tax to LHDN. Though if you win big, you’d probably have to worry more about your long-lost friends and family appearing from nowhere and asking for a piece of the pie."
"Kisah lelaki kena pecat sebab gagal update profil Jobstreet-nya  [Click here for the English version] Kalau korang ni dah pernah bekerja, mesti korang tahu cara macam mana nak mohon kerja. Sama ada memohon terus kepada syarikat yang berkenan di hati ataupun melalui laman-laman web macam Jobstreet, Indeed atau Monster. Masa nak daftar dalam laman-laman web ni, korang akan isi maklumat peribadi, pendidikan, pengalaman bekerja dan sebagainya. Resume kita tu pula akan berubah dari masa ke semasa dan memang jadi tanggungjawab kita untuk kemaskini (update) dengan maklumat-maklumat terbaru. Tapi, macam mana kalau kita mohon kerja tanpa kemaskini resume atau salah isi maklumat? Sebenarnya, hal ni boleh bawa kesan besar juga sebab ada seorang lelaki ni sampai hilang kerja sebab maklumat dalam profil Jobstreet-nya tak tepat! Dia mohon jawatan dalam syarikat yang dia sedang bekerja Kisah ni bermula pada tahun 2000, iaitu tahun yang sama dia mula bekerja di syarikatnya. Pada tahun 2017, dia yang bekerja sebagai Pegawai Teknikal dengan gaji sebanyak RM6,900, dah buat permohonan kekosongan jawatan dalam syarikat sama dengan menggunakan Jobstreet. Pihak HR masa tu pun dapat permohonannya. Tapi, yang jadi punca masalah adalah bila HR sedar yang jawatannya dalam profil Jobstreet tu tak sama dengan jawatannya yang sebenar dalam syarikat. Jadinya, pada Oktober 2017, syarikat dah keluarkan surat tunjuk sebab kepadanya. Surat tunjuk sebab tu diberikan kerana syarikat nak dapatkan penjelasan kenapa dia buat macam tu. Tak lama lepas tu, dia pun bagi jawapan dengan kata maklumat salah tu jadi disebabkan masalah teknikal. Syarikat yang dapat jawapan tu rasa tak puas hati dan mereka pun mulakan siasatan dalaman dan dapati dia bersalah atas tujuh dakwaan salah laku. Dia kemudiannya digantung tugas selama 14 hari tanpa gaji dan selepas itu dia pun buat rayuan terhadap keputusan tu. Gagal kemaskini profil Jobstreet-nya, dianggap sebagai salah laku Menjelang Februari 2018, Jawatankuasa Rayuan Disiplin (DAC) dah adakan pendengaran rayuan. Dia kemudiannya mengakui dakwaan-dakwaan tu, tapi sekali lagi mempertahankan yang dia tak menipu tentang kelayakan. Dia juga kata maklumat yang betul tu tak keluar disebabkan masalah teknikal. Menurutnya, dia dah kemaskini maklumat dalam profil dan simpan, tapi bila dia log masuk semula – perubahan tu dah takde. Dia juga kata yang dia ada maklumkan hal tu kepada Jobstreet, tapi tak ada-apa yang pengguna boleh buat untuk betulkannya. Syarikat kemudiannya setuju yang alasan tu nampak munasabah. Tapi... muncul pula isu lain. Semasa memohon kekosongan jawatan di Jobstreet, dia kena masukkan surat untuk satu permohonan. Ia adalah surat cadangan dari pihak atasan, dan di dalamnya, ada kata yang dia itu bertugas sebagai 'Senior Manager Knowledge Management’, sedangkan jawatan sebenarnya adalah ' Executive Knowledge Management'. Jadinya, syarikat pun kata yang mereka tak boleh percayakan dia lagi untuk jalankan tugas dan ambil keputusan untuk pecatnya. Dia lepas tu ada failkan kes di Mahkamah Perusahaan atas dakwaan pemecatan secara salah. Tapi, mahkamah kemudiannya bersetuju dengan syarikat Dia merasakan apa yang jadi terhadap pemohonannya tu tak lah sampai boleh membuatkannya dipecat. Dia juga kata yang tak seorang pun dari DAC – jawatankuasa yang mendengar rayuannya – dipanggil untuk memberikan bukti di mahkamah. Jadinya, dia anggap pemecatannya tu tanpa sebab. Dalam memberikan keputusa untuk kes ni, mahkamah seterusnya melihat kepada dua perkara iaitu: sama ada apa yang dilakukan oleh pekerja itu adalah salah laku dan adakah tuduhan salah laku itu adalah alasan yang baik untuk memecatnya Mahkamah seterusnya memberitahu yang pekerja tu sendiri dah mengaku terhadap tujuh tuduhan salah laku, iaitu bermakna dia setuju yang dia sepatutnya memastikan profilnya dikemaskini. Tentang persoalan sama ada dia dipecat atas alasan yang munasabah. Mahkamah nampaknya bersetuju bahawa wujudnya kemungkinan telah berlaku masalah teknikal dan kerana itulah maklumat yang diberikannya tak tepat. Bagaimanapun, isu yang lebih besar adalah surat dari pihak atasan yang tak menyatakan jawatannya sebenar. Untuk hal ni, pekerja tak boleh kata yang dia tak sedar dengan apa yang berlaku. Hakim berkata: Mahkamah memang menerima penjelasan penuntut mengenai percubaannya yang gagal untuk membetulkan penyataan yang salah di halaman Jobstreet. Bagaimanapun, Mahkamah tidak mendapat penjelasannya mengenai keterangan yang dilampirkan pada pertuduhan ketujuh yang memuaskan. Mahkamah mendapati bahawa penyertaan kesaksian ini menimbulkan keraguan terhadap integriti penuntut. Oleh itu, Mahkamah dan Syarikat kehilangan kepercayaan dan keyakinan terhadap penuntut. Oleh itu, mahkamah membuat keputusan menerima tindakan syarikat dan menolak tuntutannya. Kalaulah dia menang dalam kes tu, syarikat mesti kena bayar pampasan kepadanya. Perkara ni ada dinyatakan dalam Seksyen 20, Akta Perhubungan Perusahaan 1967, di mana pekerja ada hak untuk buat tuntutan di Mahkamah Perusahaan jika mereka rasa mereka dah dipecat secara tak adil. Kalau korang rasa, korang melalui hal yang sama dan nak dapatkan keadilan – korang bolehlah failkan kes di Mahkamah Perusahaan. Cumanya korang kena ingat yang tuntutan tu hanya boleh dibuat dalam tempoh 60 hari dari hari dipecat."
"This case made it easier to sue carparks over a stolen vehicle in Malaysia Not too long ago, we wrote an article on whether you can sue a carpark management if your car was broken into while parked in their carpark. [READ MORE: In Malaysia, can you sue the carpark management if your car is broken into?] If you’re yet to read that article, your first guess might be that you would easily be able to sue the management. However, it isn’t that straightforward, because of something known as an exclusion clause. We’ll explain what that means in detail below, but an exclusion clause basically exempts a party from taking any responsibility for any damage that happens when another party uses their service or product. This is actually a clause used by many carpark managements and so, it’s not exactly common to see them getting sued over damages that happen to vehicles. But we spoke to lawyer Fahri Azzat, and he told us of a unique case where someone sued a carpark management and actually won. This time, though, it wasn’t to do with a car that was broken into or damaged. A car was stolen from a carpark The facts of this case aren’t something you might hear of everyday. It starts off with a man driving a rental car to a building and parking it in a carpark belonging to that building. When he came back hours later, he realised that the car was missing. The management then went through the CCTV footage, and saw that the car had been driven out by another person. At this point, you must be wondering how this happened, especially when most carparks would have barrier gates that only open if a ticket is inserted. In this case, the person who stole the car managed to tailgate another car that was exiting the carpark. This way, he could leave without the ticket, as the barrier gate was too slow in preventing this. The company who rented out the car then sued the carpark management for negligence. In other words, they were suing the carpark for carelessness that resulted in the loss of the car. This saga started 3-4 years ago, but a second decision was heard just a few weeks back. The carpark management lost the case twice If you remember earlier, we mentioned something about an exclusion clause. Generally, exclusion clauses are placed when a company doesn’t want to take responsibility for another person’s injuries or losses. In the context of carparks, a simple example would be the words ‘PARK AT YOUR OWN RISK’ printed on a ticket or written somewhere else in the carpark. Exclusion clauses like this don’t require you to verbally agree to them, nor do you need to sign an actual contract to accept it. Once you use the service of a company that has this clause, it’s assumed that you’re okay with it. So what this means is that if you park your car there, you’re aware that there may be some risk—even if it’s a small one—but you will not take legal action against the car park company if something were to happen to your car. Coming back to our case, when it was first heard in the Sessions Court, the carpark management argued that they had an exclusion clause, and so, they could not be held responsible. The court didn’t agree with this. It was a lengthy judgment, but this is the gist of it: Not all exclusion clauses can be valid. If they are unfair to the consumer, the court can set them aside. Clauses that are vague in their wording may also not be enforced. In this case, the court found that the wording of the exclusion clause was such that it only covered losses and damages to a car. It didn’t mention anything about theft of a vehicle. Therefore, the carpark management couldn’t rely on it. Even if the clause could be applied to the theft of a vehicle, the driver of the car wasn’t aware of it. An exclusion clause is valid if the party knows about it. The barrier gate was too slow, that two cars were able to go out of it at once. This was a technical issue that the carpark management should have fixed. There were also no guards near the barrier gate to ensure that only one car could go out each time. The carpark management could NOT prove that they weren’t negligent. The legal relationship between the carpark management and those who parked their cars there is known as a bailor-bailee relationship. Under this relationship, it is the bailee’s duty to guard the bailor’s property until the bailor redeems it from them. Lawyer Fahri Azzat watered this part down for us a little bit more: “Other examples of a bailor-bailee relationship are giving jewellery to a security company to keep or transport; delivery of goods; basically, any situation where you leave an asset or something valuable in the custody and control of another person.” - Fahri Azzat via an e-mail interview with AskLegal So because of all these reasons, the court decided the case in favour of the car rental company. The carpark management was then asked to reimburse the price of the stolen car. As you would have guessed, they appealed the decision to the Court of Appeal, a higher court. However, this court didn’t find anything wrong in the previous court’s decision. So they, too, said that the carpark management didn’t have a strong case here. If you’ve read this far, you might ask yourself: What exactly is the takeaway from this case? Well, this is more than just a random story... Carpark managements now have more responsibility While it is the norm for carparks to have an exclusion clause on their tickets or anywhere else in the car park, this case proves that such clauses may not always work. Even though exclusion clauses are perfectly legal, they must be fair to consumers—in line with the Consumer Protection Act 1999. This case also sets a higher standard for carpark managements to follow. Just having a barrier gate and ticketing system alone may not be enough. They will need to ensure that everything is working as it should. If they don’t, it can be said that they didn’t do their best to prevent a loss or damage from happening. We mentioned that a carpark management and customers who park there have a bailor-bailee relationship. In deciding the case, the court put a lot of focus on this relationship. The bailee (carpark management) is legally responsible to keep the property safely in their possession until the bailor (car owner) comes and claims it back from them. If anything were to happen to the property in that time, the bailee has to be answerable for it. So in this case, the carpark management had failed its role as a bailee by having a parking system that was weak enough to allow someone to steal a car. Another thing is that, it’s possible that this principle may be extended to other types of services and not just carparks, but this can only be confirmed if another landmark case such as this were to happen."
"What actually happens when someone is investigated under SOSMA? Every time someone is charged under SOSMA, it’s usually newsworthy. And this happened recently, when news of 29 Malaysian-Indian detainees became viral, due to allegations of police misconduct and abuse of remand process. They were held in remand under a few different laws. But notably, they were previously investigated under SOSMA, which allowed the police to remand them for 28 days. According to a statement from PDRM, the 29 men are arrested as suspects of a shooting case that happened in Banting, Selangor. They were alleged to be members of TCB 21, an organised crime group. The use of SOSMA is always controversial. But what exactly is SOSMA about? It was originally made to deal with terrorism SOSMA, or the Security Measures (Special Measures) Bill was first proposed in 2012, as a replacement for the soon to be abolished ISA. It was intended to focus on terrorism, espionage and threats to national security. It was enacted under Article 149 of the Federal Constitution, which is the supreme law of the country. In general, when we make new laws, we need to make sure that it’s consistent with what it says in the constitution. But under Article 149, to prevent threats against national security and public order, Parliament can make laws that go against the four personal liberties set in the Federal Constitution. You can read in full what the liberties are here, which are Articles 5, 9, 10 and 13 in our constitution. But a simplified version of these four liberties are: Right to life – No one can be deprived from life or personal liberty. Which means that you’re free to live your life, as long as you don’t do illegal things. If you’re arrested, you must be informed why and are allowed to get a lawyer. And within 24 hours of arrest, you must be brought to a magistrate (basically a judge). You’re free to move around – You have the right to freedom of movement. You can move around and stay wherever you want in the country. You’re free to express yourself – This means that you have freedom of speech, to assemble peacefully with other people, and to join any legal association you please. You can own property – Not only can you own property, if say the government acquires your land to build a road over it, they must compensate you for it. It deals mostly with organised crime We might think that SOSMA is a law by itself, and lists what you can or cannot do. But specifically, SOSMA is actually a procedural law, compared to ISA, which is a substantive law. Here’s a simplified version of what that means. Substantive law – Deals with the what in the law. It lists down what you can’t do, as well as the punishment that comes with it. So for example, ISA deals with national security. If you threaten national security, you’ll get locked up for 60 days. Procedural law – Deals with the how in the law. It prescribes how you can enforce other laws or rights in the country. For example, Article 5 states that if you’re arrested, you must be allowed to see your lawyer. But if you’re charged under SOSMA, a police ranked superintendent or above can deny you from getting legal aid for 48 hours. So Article 5 of the Constitution can be applied differently if SOSMA is in the picture. Security offences which can be investigated under SOSMA are mainly from the Penal Code, and one from the Anti-Trafficking In Persons Act. They are: Offences towards the state - In general, this means any acts that harms the sovereignty and democracy of Malaysia. This includes waging war against the Agong or state rulers, threatening or harming Parliament members from doing their duties. It’s not just acts against persons, as sabotaging public utilities, espionage and harbouring enemies of the state are also offences. Terrorism - This means any act of terrorism, as well as cooperating with terrorists. Under the original law, it only applies to terrorist acts done domestically. This was amended in 2015, to include terrorist acts done in foreign countries. Organised crime – This means anyone who is part of an organised crime group, or who helps them or receive payment to help them. Trafficking or smuggling migrants – Anyone who is involved in trafficking or smuggling migrants. Just like organised crime, this also includes anyone who helped them, or received payment to help them. What can happen if someone is investigated under SOSMA We’ll show what could happen during these three phases: arrest, detention, and trial. Arrest In general, the police are required to have a warrant to enter a premise. Under SOSMA, if they are investigating a security offence, they can enter and search a premise without one. They are also allowed to detain the person for investigation without needing an arrest warrant. [READ MORE: Can the Malaysian Police enter your house without a warrant?] And usually when someone is arrested, the police will immediately notify their family, and allow the person to get legal help. Under SOSMA, police with a rank of superintendent and above are allowed to delay that right by up to 48 hours. But they can only do so for certain reasons. For example, they might believe that the person will alert other criminal members, ask someone to tamper with evidence, or that someone might be harmed. Prior to the arrest, police are also allowed to intercept any communication through whatever medium, even good old snail mail. They can also ask your communication provider (cellphone or internet) to intercept and retain the information. If they think it’s necessary, they can also enter any premise and install a listening device. Detention You can then be detained for 24 hours for investigation. As before, a police officer ranked superintendent and above can extend this up to 28 days. They can release you before the 28 days, but if they do so they can attach an electronic monitoring device. The clause that allows for a 28 day detention is a ‘sunset clause’. It means that this law regarding detention length will cease to have an effect after a certain time, unless Parliament agrees to extend it. Under SOSMA, the clause needs to be reviewed every five years, and Parliament had agreed to extend it back in 2017. Once detained, bail will not be granted if you’re charged under SOSMA, but there are exceptions. If you are below 18 years old, a woman, or sick, you can be released on bail but with a tracking device attached. But this is only allowed if you aren’t charged for terrorism. Trial During trials, the prosecution can withhold the identity of witnesses from the accused and their lawyer. Similarly, informers giving tip-offs can also have their identity hidden. Sensitive information can also be withheld. If the prosecution believe showing the evidence can be detrimental to national security, they can choose to not produce it. And if they choose to do so, the judge can’t direct the prosecution to show it. Supporters believe it should be kept but amended Supporters of SOSMA see it as something necessary, as it enables authorities to tackle serious crimes such as terrorism and organised gangs. SOSMA was used right after it was enacted, as it was used to deal with terrorist acts in 2013. One of the first people arrested under SOSMA was Yazid Sufaat, who was a member of the Islamist terrorist organisation Jemaah Islamiyah, and with direct links to al-Qaeda. He was originally released from ISA in 2002, but rearrested again under SOSMA in 2013, for recruiting members for Islamic State in Iraq and Syria. SOSMA was also used in the 2013 Lahad Datu standoff. In case you forgot, back then, a few Sulu militants under the self-proclaimed Sultan of Sulu, Jamalul Kiram III, invaded the east coast of Sabah. The invasion was to assert their territorial claim over Sabah. 104 people were arrested under SOSMA, most of them Filipinos with links to Jamalul Kiram. Due to cases such as these, supporters suggested that the law be amended instead of repealed. Among the suggestions were to reduce the detention period to 14 days, and to allow the detainees to seek legal aid. Critics want it to be abolished The detractors, on the other hand, believe that the law should be repealed altogether, instead of just being amended. In 2016, Maria Chin Abdullah, the former Bersih chairman, was arrested under SOSMA which she claimed was politically motivated. Under SOSMA, you can’t be arrested for your political beliefs or activities. She criticised the 28 day detention, compared to 14 days under the Criminal Procedure Code. Those detained could also be held in prison until the final appeals are completed, which could take years even though the court has set them free. The Malaysian Bar has continually spoken up against SOSMA, calling for it to be repealed. Their reason is that SOSMA gives police arbitrary powers that erodes the rights of the accused to a fair trial, and undermines protections and liberties in the Federal Constitution. They also argued that existing laws under the Penal Code and the Criminal Procedure Code are sufficient to deal with security issues. And if those laws were not sufficient, then the solution is to amend existing “non-draconian” laws or enacting new laws that observe the rule of law. The court has also ruled that a section of SOSMA is unconstitutional, namely Section 13 which denies bail to those charged under the act. Due to that ruling, there were plans to discuss amendments to SOSMA in parliament some time in March this year . But due to Covid-19 and the ensuing MCO, it might be some time before the law can be amended."
"Kita boleh kena penjara atau denda kalau tinggalkan rumah kosong terlalu lama? [Click here for the English version] Pada suatu hari, korang dapat panggilan daripada Majlis Perbandaran di satu daerah ni. Rupa-rupanya, korang ada rumah di kawasan tu yang dah bertahun korang tak diduduki. Pihak Majlis Perbandaran kemudiannya beritahu yang korang kena denda sebab tinggalkan rumah tu kosong terlalu lama. Mereka juga kata –disebabkan rumah tu ditinggalkan terlalu lama, kawasan rumah tu dah penuh dengan semak samun sampaikan ada yang masuk ke kawasan rumah jiran. Malah, siap ada ular yang menyorok di semak samun tu, sampaikan dilihat boleh mengancam keselamatan jiran-jiran lain. Mungkin apa yang kami beritahu ni sangat jarang didengar dan berlaku di sekeliling kita. Malah, ada je kita nampak rumah-rumah yang lama terbiar dan ditinggalkan macam tu je. Sebenarnya, rumah terbiar ni boleh menimbulkan risiko juga sebab ia mungkin boleh menimbulkan rasa kurang selamat jiran-jiran dan mengganggu kualiti hidup mereka. Kerana itulah korang boleh dapat masalah kalau tingalkan rumah kosong terlalu lama. Majlis Perbandaran ada hak untuk ambil tindakan terhadap anda Sebenarnya, memang dah termaktub dalam undang-undang yang pihak berkuasa tempatan ada hak untuk menghukum mereka yang meninggalkan rumah mereka kosong dan terbiar. Seksyen 74, Akta Kerajaan Tempatan 1976 menyatakan: Mana-mana pemunya, penduduk atau penyewa mana-mana rumah, bangunan atau tanah, sama ada layak diduduki oleh tenan atau tidak, yang membiarkan rumah… berada dalam keadaan kotor dan tidak baik atau diliputi oleh tumbuh-tumbuhan rimbun dan mudarat melakukan suatu kesalahan dan boleh, apabila disabitkan, didenda tidak melebihi satu ribu ringgit atau dipenjarakan selama tempoh tidak melebihi enam bulan atau keduaduanya dan didenda tambahan tidak melebihi satu ratus ringgit bagi setiap satu hari selama tempoh kesalahan itu diteruskan selepas sabitan. Dengan kata lain, undang-undag ni memberitahu bahawa mana-mana pemilik rumah yang membiarkan rumah mereka dalam keadaan kotor boleh didenda sehingga RM1,000 atau penjara 6 bulan atau kedua-duanya sekali. Malah, ada tambahan denda sebanyak RM100 untuk setiap hari kesalahan itu diteruskan selepas sabit kesalahan. Korang juga mungkin perasan dengan kata kunci rumah dalam 'keadaan kotor dan tidak baik'. Makanya di sini, hukuman tu juga boleh dikenakan terhadap orang yang tinggal di rumah tu dan tak semestinya rumah tu kena kosong. Kalau korang ada baca berita baru-baru, ada satu kes di Simpang Pulai, Perak pasal seorang warga emas ni yang kumpul banyak sampah depan rumah sampai buatkan jiran-jiran rasa rasa tak selesa. Hal tu dah membuatkan jiran-jiran buat aduan kepada polis dan Majlis Bandaraya Ipoh (MBI). Cumanya, warga emas tu tak didakwa sebeb dia dipercayai menghidapi masalah mental. Tapi, untuk artikel ni kami akan fokus kepada rumah kosong yang dibiarkan kotor dan tak terurus sehingga mengganggu orang sekeliling. Seperti mana yang dinyatakan di awal tadi, isu yang berbangkit sekarang ni adalah berkenaan dengan masalah rumah yang ditinggalkan kosong tanpa penghuni. Sebagai contoh, Majlis Bandaraya Petaling Jaya (MBPJ) dah menguatkuasakan undang-undang ini di kawasan mereka, malah ada menubuhkan sebuah pasukan petugas yang akan mengenal pasti dan menangani rumah yang ditinggalkan. Undang-undang ini digunakan bagi membenarkan orang lain tinggal di tanah anda Perkara ni mungkin lari sikit dari apa yang kita nak bincangkan, tapi sebenarnya ia ada kaitan juga dengan isu ni. Bila British datang ke negara kita, ada satu undang-undang yang dipanggil sebagai ‘adverse possession’. Ironinya, undang-undang tu datang dari Britain, tetapi mereka jugalah yang telah memansuhkan undang-undang tersebut. Pada dasarnya, undang-undang ini membenarkan seseorang mengambil alih tanah korang dan secara sah menjadikan tanah tu miliknya, kalau korang membiarkannya kosong untuk masa yang lama. Perkara ni bermula pada Zaman Pertengahan, bila mana keadaan ekonomi masa tu merosot sehingga membuatkan ramai yang hilang tempat tinggal, tapi dalam masa sama ada banyak tanah yang dibiarkan kosong. Orang-orang ni kemudiannya tinggal di tanah-tanah tu, dan akhirnya menjadikan tanah-tanah tu milik mereka. Pihak berkuasa lepas tu membiarkan orang-orang ini ambil tanah-tanah tu jadi milik mereka, sebab mereka telah menjaganya dengan baik dan pemilik asal pula memang tak kisah lagi dengan tanah berkenaan. Undang-undang ni kemudianya sampai ke Tanah Melayu, tapi lepas tu dimansuhkan – terutamanya selepas wujudnya Kanun Tanah Negara. Ada juga pihak yang cuba tuntut pemilikan tanah seperti sebelumnya, tapi mahkamah menolak tuntutan mereka. Menariknya, undang-undang ni masih wujud di UK sampai sekarang, cuma kegunaannya agak berbeza dengan yang masa lalu. Pada masa dulu, seseorang yang tinggal di tanah orang lain selama 12 tahun secara berterusan boleh mengambil tanah itu sebagai miliknya. Sekarang, tinggal di situ saja masih tak cukup, untuk tuntut tanah itu sebagai milik mereka. Sebaliknya, mereka kena buktikan yang mereka dah lakukan banyak perkara sehingga boleh membuatkan tempat itu jadi rumah mereka (contohnya: melengkapkan kelengkapan rumah dengan lebih sempurna, menghabiskan wang yang banyak untuknya dan sebagainya). Namun di Malaysia, undang-undang kita sekarang ni tak membenarkan kita tinggal di tanah orang lain dan buatnya macam kita yang punya. Maka, sebab itulah kita boleh dapat masalah kalau tinggalkan rumah kosong tanpa diselenggara dengan baik. Jiran boleh saman anda kerana kacau ganggu Sebelum ni, kami ada tulis artikel pasal saman jiran sebab biarkan ranting pokok masuk dalam kawasan rumah kita. Kisahnya macam ni, kalau ranting atau dahan pokok jiran A masuk ke kawasan rumah jiran B. Jiran B ada hak untuk cantas ranting/dahan yang masuk ke kawasan rumahnya anpa minta izin dengan jiran A. Selain tu, undang-undang juga membenarkan jiran B untuk saman jiran A kerana kacau ganggu persendirian. Jadinya, kalaulah korang tinggalkan rumah korang tu bertahun lamanya dan pokok-pokok yang ada di situ dah masuk ke kawasan rumah jiran, mereka boleh saman korang. Cumanya, mereka kena buktikan bahawa: Mereka memiliki hartanah yang mereka tinggal dan mereka berhak terhadapnya; Korang, jiran, bertindak dengan cara yang mengganggu kesenangan dan penggunaan hartanah mereka; dan Gangguan itu besar dan tidak munasabah Jadinya, kalau korang tinggalkan rumah dalam keadaan tak terurus dan ia boleh menggangu kehidupan orang lain, korang mungkin akan dapat tindakan undang-undang. Makanya, perkara asas yang kita kena tahu adalah – bila kita ada tanah/hartanah ia adalah tanggungjawab kita untuk menjaganya dengan baik dan tak mengganggu orang lain. Jika kita gagal berbuat demikian, selain kena saman dengan jiran – kita juga berisiko menerima tindakan undang-undang daripada pihak berkuasa tempatan. [BACA LAGI: Dengan 3 syarat ni, kerajaan Malaysia boleh ambil tanah dan hartanah anda secara sah]"
"In Malaysia, what can you do if a car dealer is late in delivering your car? After months of saving up, you’re finally able to put a down payment on your dream car. You head over to the nearest showroom and proceed with the paperwork. A few days later, your loan gets approved by the bank. The car dealer then tells you to come pick up your brand new car in two weeks. The two weeks go by, but you don’t receive a call from the dealer. Instead, you call them to find out what’s happening. The dealer tells you that they’re going to need another month to get your car ready, due to a surge of orders. Now this may not seem like a major thing to most...but one of our readers shared his story of how he’s been waiting to get his new car for several months. So what if like him, you needed to get your new car urgently but there is a massive delay—can you actually take action against the car dealer? Check the terms of your agreement When you buy a new car, you would naturally sign an agreement/contract with the dealer. This contract will detail all the obligations that you and the dealer would have towards each other. One simple and straightforward example would be that you need to pay a down payment before taking the car. But besides these very basic terms, they would also contain finer ones such as if a delay of car delivery were to happen. As an example, we searched online and found one from an actual car dealer in Malaysia. It said: “All delivery dates for the Vehicles are best estimates only. We will not be liable for increased cost, loss of profits or goodwill or any other special, incidental or consequential damages due to late delivery or non-delivery of the Vehicles.” In other words, it says that any delivery dates given by the dealer are merely estimates, and that you cannot hold them responsible if they were to deliver past those dates. While this can be seen as unfair to the buyer, dealers are allowed to impose such terms to cover themselves, especially if the delay was through no fault of theirs (technical issues, sudden shortage of manpower etc.). But just because an agreement contains a certain term, it doesn’t mean that it’s always valid. The Consumer Protection Act 1999 prohibits businesses from imposing terms that are outright unfair to consumers. For example, if a car dealer delivered your car over 6 months past the promised date with no justification for the delay, this would be seen as excessive. The court may prevent the dealer from relying on a term which excludes them from taking responsibility, if the term puts you at a great disadvantage. Instead, they could make the dealer compensate you for those 6 months. But if the term in the contract that allows for the delay is fair enough, it can be valid. For example, the term might say that if there is a delay, they would compensate you monetarily or by giving you free accessories. There’s now a law to pause contracts Besides terms in contracts, there’s also now a law which can give parties to a contract some extra time to complete their end of the bargain. When Covid-19 first started, most businesses had to temporarily close. Because of this, many could not fulfill pending orders by customers, and this included the automobile industry. To prevent people from being sued for delays that weren’t in their control, the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act was passed just recently. This Act would allow any contracts from the start of the first MCO to 31st December 2020, to be paused. This means that the parties will have no legal obligation towards each other for that short period of time. However, it doesn’t apply to contracts that existed before this Act came into effect. The bottom line is this: delays are allowed if your contract allows for it, and if this new Covid-19 Act applies to you. However, your car dealer cannot misuse either of these to justify a delay in delivery, especially if they had the chance to give you your car sooner. If the delay is deliberate and unreasonable, you can sue them for breaching the agreement. Alternatively, you can file a complaint with the Ministry of Domestic Trade and Consumer Affairs."
"Apa akan jadi kalau tandatangan kita berubah selepas sain dokumen di Malaysia? [Click here for the English version] Cuba bayangkan situasi macam ni, pada suatu hari kita pergi ke bank sebab nak batalkan kad kredit. Kita pun tandatangan borang pembatalan dan orang bank proses borang tu. Tapi, tiba-tiba dia datang dan kata yang tandatangan kita tu tak sama dengan apa yang ada dalam rekod bank. Disebabkan tandatangan tu tak sama, dia pun terpaksa tolak permohonan pembatalan kad kredit kita tu. Kita cubalah terangkan yang sebenarnya dah lama tak tandatangan borang dan sebab itulah bentuknya lain. Tapi, dia tetap kata yang dia tak boleh proses permohonan tu. Ini adalah salah satu contoh situasi yang melibatkan tandatangan tak sepadan dengan rekod. Dalam masa sama, tak dapat dinafikan juga ada di antara kita berubah tandatangan selaras dengan beredaran masa. Kita juga mungkin tak dapat nak tiru tandatangan yang dah lama tak digunakan. Jadi, apa yang akan berlaku sekiranya tandatangan kita betul-betul dah berubah? Untuk dapatkan jawapannya, kami cuba bertanya kepada seorang peguam mengenai perkara ini dan ini perkara pertama yang dia kata… Terdapat DUA jenis tandatangan yang kita kena tahu Tandatangan ni mungkin nampak macam simple je, tapi ia sebenarnya ada dua jenis. Jenis-jenis ni pula mempunyai tahap ‘keseriusan’ yang tersendiri: Tandatangan biasa – jenis tandatangan ringkas yang kita gunakan setiap hari, macam pada kad hari jadi kawan-kawan, malah juga dalam kontrak pekerjaan Tandatangan spesimen – salinan tandatangan yang kita bagi kepada bank atau organisasi lain yang mungkin memerlukannya Jadinya, beza ketara yang ada di antara dua jenis tandatangan ni adalah – tandatangan spesimen melibatkan organisasi yang kemudiannya akan menyimpan salinan tandatangan kita tu secara berasingan. Kalau tandatangan kita tu tak sepadan dengan apa yang mereka ada, mereka ada hak untuk tolak sebarang transaksi yang kita nak buat. Menurut peguam yang kami hubungi, kalau kita perasan yang tandatangan kita tu dah berubah, kita kena maklumkan kepada organisasi supaya mereka tahu. Mereka nanti akan ambil salinan tandatangan kita yang baru dan simpannya sebagai tandatangan spesimen. Untuk buat benda ni, mereka kena mengesahkan identiti kita dengan menggunakan MyKad, atau kadang-kadang tu tu siap hubungi Jabatan Pendaftaran Negara (JPN) secara langsung. Bank juga guna cap jari sebagai salah satu cara pengesahan, untuk tengok sama ada pihak yang nak buat transaksi tu orang yang sama atau tak. Ini contoh dokumen yang memerlukan tandatangan spesimen dan cap jadi untuk pengesahan tambahan: Macam mana pula dengan kontrak yang dah kita tandatangan sebelum ini? Mungkin ada yang tertanya-tanya apa akan jadi kalau tandatangan kita berubah SELEPAS kita tandatangan kontrak dengan bank atau mana-mana institusi kewangan. Rupa-rupanya, perubahan tandatangan tu tak akan mempengaruhi kandungan kontrak yang kita pernah tandatangan. Sebabnya, kontrak akan mempunyai saksi semasa ia ditandatangani. Jadinya, mereka boleh mengesahkan siapa yang tandatangan kontrak tu. Tapi selepas itu, selagi mana kontrak itu sah dan kedua-dua pihak memenuhi kewajiban mereka – makanya tak perlu pihak berkenaan menandatangani apa-apa lagi. Bagaimanapun, keadaannya agak berbeza kalau kita diperlukan untuk tandatangan kontrak kedua atau ketiga dengan pihak yang kita berurusan. Dalam hal begini, ia akan menjadi kontrak baru dan akan sama sekali terpisah dari yang sebelumnya. Jadinya, tandatangan berbeza di antara kontrak yang berbeza tak akan mendatangkan banyak masalah. Dalam pada itu, sebenarnya ada je cara lain yang kita boleh guna untuk kekalkan bentuk tandatangan untuk semua urusan. Antaranya, kita boleh guna e-tandatangan atau tandatangan digital. [BACA LAGI: Tandatangan digital sah ke di Malaysia?] Kesimpulannya, langkah terbaik yang kita boleh buat adalah sentiasalah bawa IC dan sebarang dokumen pengenalan diri. Kalau tiba-tiba tandatangan kita tu tak sepadan dengan rekod, bolehlah kita sahkan identiti dengan dokumen-dokumen pengenalan tu nanti."
"A Msian man was sued for RM50K for causing cracks and leaks in his neighbour's house Unless you’re a hermit, we’ve all had or at least heard of neighbours that are just difficult to live next to. They could be noisy, messy, intrusive, or all of the above. Usually if a problem with a neighbour arises, we might let them know that we’re unhappy, or we would ignore it if it’s a minor issue. But sometimes when your neighbour’s actions start to get over the top, you might even think of taking legal action against them. And that’s exactly what a whole family did, as we’re about to find out. [READ MORE: 5 annoying things your Malaysian neighbours do that you can sue them for] This case, known as Chin Moy Yen & Ors v Chai Weng Sing & Ors (Court of Appeal) [2019] was first heard last year, and the latest judgement was passed down just this August. The family that sued is known as the Chan family. They sued their neighbour for nuisance and trespass, and we’ll explain this in detail below. But what’s interesting about this case is that while the neighbour was sued for all this, it wasn’t exactly them who caused all these problems, and that’s because... The neighbours rented their homes out to students To give you a clearer picture, the landlord owned five condo units situated near a university, which were rented out to students. It was said that the neighbour had been doing renovation works in the units for a very long period of time and they often went on through the night and early hours of the day. This caused a lot of inconvenience to the the others living there, but it was the Chan family that was affected the most. The neighbour’s renovation work was said to have caused cracks and damages to the Chans’ house and it eventually led to water, and eventually sewage seeping into their house. According to the Chans, all this renovation work was also done without proper approval from the condo management. After all the renovation works were complete, the students moved in. Although there were five separate units, it was said that the units were further extended so that more people could live in them. When the case finally went to court, some witnesses said that the number of students that lived in those houses were double the amount of people that would usually live in such a space. Because of all this, the noise levels were always high, and this, coupled with the physical damage to the Chans’ home made it difficult for them to live there. The High Court said that there wasn’t enough proof As mentioned earlier, the Chans took the case to court and sued the neighbour for both nuisance and trespass. If you’re unfamiliar with what these mean, here’s a brief explanation of each: Nuisance: There are two types—private nuisance and public nuisance. Public nuisance is when someone does something that can ruin your peace when you’re out and about in public. An example of this would be a drunk person shouting at you and chasing you when you’re out on a walk. In the case that we’re looking at, the neighbours were sued for private nuisance. Private nuisance is when someone does something that ruins the enjoyment of your own home. This would include things like excessive noise, an overgrown tree and so on. Trespass: When someone illegally enters your private property. When the case went to the High Court, they weren’t convinced that the evidence was strong, and so the Chans lost the case. But as you can already tell, the Chans didn’t let this go and they went to a higher court, the Court of Appeal. They appealed the decision and won The Court of Appeal reversed the decision made by the High Court, saying that there was indeed enough proof of the Chans’ claims. They found out that there were several police reports made regarding the noise levels, and even complaints made to the condo management. It also didn’t matter that some of the noise was made by the tenants, and not the landlords. As they were the landlords, it was their duty to ensure that their tenants were not disturbing others, especially when they were aware that others were complaining about them. Another interesting fact is that they the court also found the neighbour liable for trespass. We mentioned above that trespass involves a person illegally entering your property. While no one entered the Chans’ home without their permission, the court found that all the cracks and water/sewage seepage from the renovations amounted to trespass. The neighbour was then ordered to pay compensation to the Chans for all the damage caused, both physical and mental. But the neighbour wasn’t the only ones who had to pay the Chans. The condo management was also sued for failing to take action after so many complaints were made. [READ MORE: 5 things Malaysian condo owners can sue their management for] In total, the Chans were awarded RM80,000 as compensation. Here’s the breakdown: RM50,000 from the neighbour. He owned all 5 units, but eventually sold 4 of them off RM20,000 from the 4 new owners of the houses that were previously owned by the neighbour RM10,000 from the condo management While this may have been the first time you’re reading of such a case, it’s actually pretty common for people to sue neighbours for nuisance and trespass. However, this is a unique case, in that the landlord was made responsible for some of the things done by the tenant. This could also be extended to other types of tenants, such as short-term rentals and Airbnb guests. This case also can be appealed one more time to the Federal Court, if the neighbour chooses to do so. So, we can only wait and see if this decision will become permanent and be applied to other cases."
"Can you choose not to have bin or binti on your MyKad? When we see a Malay-Muslim name, we might think it’s common – or even compulsory – to have a bin or binti in the name. The same goes with having an a/l (anak lelaki) or a/p (anak perempuan) for Indians. But some readers have asked if it’s compulsory to have one, and if you can remove it from your MyKad. We did some digging, and as we found out, it’s not always necessary to have one, be it a bin or binti, or a/l and a/p. In some cases, you can even have it removed. You can choose not to have one In case you were surprised, so were we. According to a statement from the Home Ministry in 2017, adding the a/l or a/p is a norm for Indian parents, but it is not compulsory. This means that Indian parents can choose to not include a/l or a/p in their child’s birth certificate. However, since it’s a norm to have one, JPN will first confirm it with the parents if they do not wish to use it. Similarly, Malay-Muslim parents can actually choose to omit bin or binti from their child’s birth certificate. But it does not happen automatically, as it’s an opt-out process. When a Muslim child is born, the parents will be given the child’s birth certificate draft. By default, their child will have a bin/binti on the certificate. To omit it, the parents would have to make a request to the registrar, if they have a good reason. What is a good reason to omit bin or binti? We contacted JPN (Jabatan Pendaftaran Negara) to ask about this, and according to a spokesperson, it’s generally done by those who have migrated overseas. This is because naming conventions in non-Muslim countries tend to use the family’s name, instead of using their father’s name. There are also cases where it’s a mixed marriage between a Muslim woman and a male convert. If the convert chooses to keep his name, the parents might choose for their child to have the father’s last name. Some people might decide to do it out of personal choice. When we searched online, there are stories on Reddit of Malay-Muslims who do not have bin or binti in their name. However, due to having a bin/binti being so common, there are some things to think about if you choose not to give your child one. People might think your child is born out of wedlock. In Malaysia, children born out of wedlock cannot have a bin/binti with their biological father’s name. In most cases, they can only put a bin or binti Abdullah behind the child’s name. So even if the child is legitimate, this might cause fitnah and rumours about the child. Having a nasab (bin or binti) makes things easier. Lineage is important for certain things under syariah law, especially faraid (inheritance law) as the bin or binti helps confirm the relationship between father and child. [READ MORE: The untold story of the ""bin Abdullah"" children in Malaysia] You can apply to have it removed from your MyKad If you’re still keen to remove the bin, binti, a/l or a/p from either your MyKad or your child’s MyKid, here’s how to do it. Get an oath letter (surat sumpah). Go to a commissioner-of-oaths to declare that you would like to get it removed from you or your child’s name. You’ll have to fill in a form which looks something like this, and it will be signed by the commissioner. Go to JPN. Walk-in to your closest branch, and ask to do a Permohonan Pindaan Butiran Kad Pengenalan (Application to Amend Identification Card Details). Fill in a form. You’ll be given form KP.16. Fill it up and include the supporting documents such as the oath letter. You’ll also need to bring your birth certificate, MyKad, and if the applicant is a child, their parent’s MyKad. Explain why. They might ask why you’re doing it, so just explain nicely your reason for doing so Malay-Muslims might need to wait awhile after applying. When we asked JPN, they said applications from Muslims to remove the bin/binti from the name might take some time, as the application would need to be reviewed. But if they find that you have a legitimate reason, they would allow it. Indians might have an easier process, as we have readers who have applied to have the a/l and a/p removed from their MyKad, as well as their children’s. Now that you know you can bin your bin, would you do so?"
"Here's how an 87-year-old Msian doctor got his job back after being forced to retire If you’re still under 60, chances are that retirement isn’t on your mind just yet. But the thing is, retirement is something that at some point, all of us will go through. People generally retire at around 60 years of age, but sometimes, they end up working way past that. One example is when Covid-19 first came about, some of our hospitals were calling back their retired staff to help out due to insufficient manpower. But while it is possible for people to work after they turn 60, here’s the unique story of an 87 year-old-doctor who managed to get his company to re-hire him—twice—after a lengthy 27-year battle. Before we get to the story, here’s some basic information on the retirement age in Malaysia. There’s a whole Act on the retirement age Setting a minimum age for retirement is actually a law in itself: The Minimum Retirement Age Act 2012. However, its purpose is not to tell you by when you MUST retire, but it prevents employers from forcing you to retire before you turn 60. Section 4 of the Act says: 4. (1) Notwithstanding any other written law, the minimum retirement age of an employee shall be upon the employee attaining the age of sixty years. However, there are two things to note. One, is that there are some exceptions to this and two, this Act doesn’t apply to everyone. Firstly, when it comes to exceptions, the primary one is that you can still work even after 60...provided your employer is okay with it. So for example, if your employment contract states that you can work for as long as you wish, you’re good to go. If it’s silent on when you should retire, it would be best to check with HR on what their policy is. before the time for you to retire actually comes. Secondly, this Act does not apply to a specific list of people: government employees, whether they are full-time, part-time or temporary positions employees who are on a probationary period non-Malaysian employees apprentices domestic workers part-time employees for any job students who work temporarily, but not employees who take study leave or employees who study on a part-time basis employees who are on a contract of two years of less employees who retired at 55 years of age or more and were re-hired by the company BEFORE the Act came into effect Coming back to our story, the courts eventually decided that this Act did not apply to the doctor, but it was for a rather interesting reason that isn’t on this list. The doctor was made to retire twice The case involves Dr. Satwant, who worked for Assunta Hospital. The story goes all the way back to 1963, when the hospital first hired him under a three-year contract. After that contract ended, they offered him another contract. And when that second contract ended, they offered him a full-time position. Everything seemed to be going fine...until the doctor turned 60 in 1993 and was made to retire. Bear in mind that at this point, the Minimum Retirement Age Act didn’t exist yet. To backtrack a little, the doctor said that he joined the hospital in 1963 when someone named Mother Mary Xavier who also worked there, assured him that he could work there for as long as he liked. But in all three employment contracts between him and the hospital, there was no specific retirement age stated. When he was made to retire at 60, he went to the Industrial Court asking for his job back. At that point, the Industrial Court agreed with the company and said that they weren’t wrong in asking him to retire. The doctor then filed for a judicial review to the High Court. Just so you know, unlike normal court decisions that can be appealed, Industrial Court decisions can only be reviewed by the High Court, or a higher court if necessary. The difference is that in a judicial review, they may not reject the Industrial Court’s decision per se, but they will see if the manner in which the case was decided was correct. So when the High Court had to review the case, they decided in favour of the doctor and ordered that he get his job back, AND be paid for all the months that he wasn’t employed by the hospital. The hospital then appealed this decision to the Court of Appeal, which is the second-highest court, but they dismissed it. By the time all this happened, it was 1998. But...we’re only halfway through the story. The saga continued over 20 years later As we mentioned earlier, there was no law on the minimum retirement age until 2012. When that Act was finally passed, the doctor was 79 years old. Then when he turned 82 in 2015, the hospital issued him a letter, saying they were terminating him on the grounds of retirement as of 1st January 2016. When he was asked to leave again, he filed a fresh case in the Industrial Court—this time, it was for unfair dismissal. In 2019, the Industrial Court decided that the company had the right to ask him to leave, and they were not obliged to retain an employee that had exceeded the age of retirement. The important thing was that they had not asked someone who was under 60 to leave, as that would be breaking the law. But the doctor didn’t give up, and he filed a judicial review for this case as well. The High Court heard the case in August 2020 and this time, they agreed with the doctor. Remember the Mother Mary that promised him he could work till whenever he wanted? The court accepted that as a valid reason to retain his job. He seemed to have relied on that promise all these years, and this is what made him leave the government sector in 1963 and join this hospital in the first place. There was also nothing to show that the doctor was incapable of performing his duties as usual. What does this case mean for Malaysian employees? As we’ve seen, this was a pretty unique case. It’s worth noting that this decision can be appealed again by the hospital, so it’s not exactly final. But the main takeaway from what’s happened so far is this: 60 isn’t the mandatory retirement age in Malaysia, unless it’s explicitly stated in your contract. But even if it isn’t, your employer does have the right to ask you to leave at 60, because the law allows for that. If you do choose to work past 60, your employer also needs to agree it. Or, as we’ve seen, they must have given you some sort of promise that has made you believe you’ll have your job pretty much forever."
"Boleh ke penduduk Selangor saman pemilik kilang yang sebabkan gangguan bekalan air?  [Click here for English version] Pada tahun ni, boleh dikatakan dah beberapa kali penduduk Selangor mengalami gangguan bekalan air. Antaranya punca utamanya, bila berlaku pencemaran sumber bekalan air yang sampai memakan masa berhari-hari untuk dipulihkan. Bila disiasat, ia rupanya berlaku akibat pembuangan sisa kilang, dan kes yang paling teruk terjadi awal September ini. Kes tersebut membabitkan sebuah kilang di Rawang. Malah, itu bukan kali pertama kilang tu buat kesalahan, sebab pencemaran yang jadi masa PKP Mac hari tu pun angkara kilang tu juga rupa-rupanya. Kilang Yip Chee Seng & Sons Sdn Bhd tu kemudiannya didenda RM60,000. Siasatan juga membawa kepada penangkapan empat orang adik beradik yang juga adalah pemilik kilang. Bagaimanapun, masih ada pihak yang rasa tak puas hati dan nak ambil tindakan lebih lagi terhadap mereka ni. Persatuan Pengguna Kedah (CAKE) juga nampaknya dah menawarkan bantuan kepada penduduk Selangor memfailkan saman terhadap mereka ni. Tapi, ia turut menimbulkan persoalan kepada kita semua sama ada – boleh atau tidak kita saman mereka kerana menyebabkan gangguan belakan air? Secara teknikalnya, tidak. Kenapa kita tak boleh saman pemilik kilang? Ini kerana, dalam kes ni – pihak yang bertanggungjawab menyebabkan gangguan bekalan air ni adalah kilang dan ia dianggap sebagai entiti dengan sendirinya. Manakala, pemilik pula dianggap sebagai ‘pengarah’ syarikat dan bila kita buat sebuah syarikat sendirian berhad, ia akan menjadi entiti yang berasingan dengan pemiliknya. [BACA LAGI: Syarikat Sdn Bhd wujud hari ni, sebab seorang tukang kasut disaman pada tahun 1893] Ia juga agak sama untuk kes jenayah. Melainkan jika ada peruntukan khusus yang melarang kita dari menyingkap tabir perbadanan syarikat (lift the corporate veil) – di mana ia bermaksud pengarah itu sendiri boleh didakwa. Peruntukan khusus ini berlaku untuk kes ini dan kerana itulah para pengarah ni didakwa di bawah Akta Industri Perkhidmatan Air 2006. Di bawah Seksyen 165 Akta, ada dinyatakan yang pengarah boleh didakwa bersama atau berasingan dengan syarikat, untuk sebarang kesalahan yang dilakukan oleh syarikat. Tapi, kalau kita tak boleh saman pengarah – kita masih boleh saman syarikat. Sebabnya, di bawah peruntukan undang-undang, syarikat secara teknikalnya adalah ‘orang’ yang bermaksud boleh disaman. Secara umumnya, jika tindakan seseorang itu menyebabkan kemudaratan kepada diri kita, seperti pencemaran bekalan air dalam kes ni – mereka masih boleh disaman. Ia boleh terjadi, walaupun jika pengarah syarikat dah pun didakwa atas tuduhan jenayah. Menurut peguam yang kami tanya, Tanusha Sharma: ""Walaupun (para pengarah kilang) telah dituduh secara jenayah atas tindakan mereka, (syarikat) juga memenuhi syarat tuntutan kerana kecuaian."" - Tanusha Sharma, peguam Secara ringkasnya: ya, kita boleh saman syarikat, tapi bukannya pemilik. Namun, bila kita saman seseorang, orang itu mestilah dah melakukan kesalahan (tort) yang memberi kesan terhadap diri kita. Dalam kes pencemaran air ni, pemilik kilang berkemungkinan besar akan disaman kerana kecuaian. Bagaimanapun, masih ada 4 perkara yang perlu dibuktikan: mereka mempunyai tanggungjawab yang perlu dijaga tanggungjawab itu telah dilanggar ada penyebab (kejadian itu disebabkan oleh mereka) kerosakan tidak terlalu terpencil (bermaksud kerosakan itu dapat diramalkan) Jadinya, berdasarkan 4 kriterian ni, ia memungkinkan boleh adanya tindakan saman. Ini kerana, syarikat ada tanggungjawab untuk tak mencemarkan sungai, dan secara jelas kilang tu dah melanggar syarat tersebut. Disebabkan kita boleh tahu yang hal itu dilakukan oleh mereka, dan tentang kesannya (bekalan air diberhentikan untuk tujuan pembersihan) yang secara langsung akibat dari tindakan mereka. Makanya, tort kecuaian boleh dikenakan terhadap mereka. Ia lebih mudah untuk saman secara berkumpulan Secara asasnya, bila kita nak saman seseorang, ia kerana mereka dah buat sesuatu yang memudaratkan diri kita. Tapi, dalam kes yang melibatkan mudarat ramai orang, cara terbaiknya saman tu dilakukan secara bersama. Inilah apa yang dipanggil sebagai tindakan tuntutan kelas (class action suit). Walaupun kita boleh je saman mereka secara berseorangan, ada sebab lain yang membuatkan lebih baik untuk kita saman secara beramai. Antaranya adalah tentang kos kewangan. “""(yuran guaman) pasti akan lebih murah jika anda saman sebagai tindakan tuntutan kelas, kerana anda membagikan kos undang-undang di antara kumpulan besar."" – Tanusha Selain itu, ia juga… “Untuk kes seperti ini, yang melibatkan kerosakan yang ditimbulkan kepada kumpulan besar, tindakan kelas adalah cara yang lebih sesuai. Kerana bukan hanya satu individu yang terjejas, tetapi hampir di seluruh Selangor. Oleh itu, masuk akal untuk menuntut sebagai tindakan kelas, kerana kebanyakan mereka akan ada keluhan yang sama mengenai masalah pokok yang sama, dan mencari jalan keluar yang sama. Kesan kumpulan besar yang membuat tuntutan juga boleh menjadi faktor kekuatan tuntutan tersebut. "" - Tanusha Maka secara ringkasnya, tindakan saman dari kumpulan yang besar lebih baik, sebab semuanya membuat tuntutan atas perkara yang sama. Bahkan, semakin ramai yang membuat tuntutan tu, maka semakin lebih kuat ia dilihat di mahkamah nanti. Tuntutan mahkamah ini boleh mencecah hingga beberapa juta Sebelum ni, di media sosial ada yang mempertikaikan denda RM60,000 yang dikenakan terhadap kilang, sedangkan mereka ada aset mencecah hampir RM60 juta. Kalau ada yang rasa macam tu juga, kita kena tahu yang mereka ni boleh disaman sampai beberapa juta sebenarnya. Cuba kita tengok kluster Sivagangga – pemilik kedai yang jadi punca kluster tu dah disaman sebanyak RM1.5 juta oleh Persatuan Pengguna Kedah (CAKE). ""Tindakan undang-undang kluster Sivagangga melibatkan saman tindakan kelas lebih dari 100 penduduk dan pemilik perniagaan. Oleh itu, apabila terdapat sekumpulan besar dan anda mengambil kira kerugian kewangan yang dialami oleh mereka kerana dikuarantin, ia akan mencapai angka yang tinggi. "" - Tanusha CAKE juga nampaknya merancang nak mulakan kes sivil terhadap kilang tu tak lama lagi, dan kita buat masa ni perlu tunggu dulu apa keputusannya. Berdasarkan jumlah penduduk yang terjejas akibat terputus bekalan air yang dianggarkan mencecah 1.2 juta orang, kita mengharapkan nilai saman yang besar bagi menampung kos guaman yang tinggi."
"This new law gives Malaysian developers more time to complete your home due to the MCO With Covid-19 being around for nearly a year now, most of us haven’t been able to do a lot of things that we had planned. One example of this, is if you’re someone who bought a home just before the pandemic started and you had planned to move in soon after. But with the MCO, the completion of your house may have been delayed, and you might not know when you’ll get to have your new house. And while you may not be able to get your house any sooner, there may be some other things worrying you, like late payment charges by the developer, and so on. The good news is, a law has been passed to help those who are dealing with this. You might have missed the news about it, as it was passed the same day the emergency was announced. This new law will affect more than homebuyers and developers, but in this article, we’ll be focusing on just this aspect. This law puts contracts on hold As mentioned earlier, Covid-19 has made it impossible for people to carry out their obligations, and this includes any legal/contractual obligations as well. To protect many people from getting sued for things beyond their control, the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) was passed. Many countries passed similar laws to this in the last few months. Malaysia had been deliberating creating this law since March/April 2020, but it took awhile to actually get approved. We wrote about this Act before it came out and what it could possibly do once it’s in effect—you can give this a read below. [READ MORE: This new law will protect SMEs from going bankrupt. How does it work?] But while it officially came out on 23rd October 2020, this law will work retrospectively and take effect since 18th March 2020. Section 32 of the Act says: This Part is deemed to have come into operation on 18 March 2020. Coming back to part that deals with property matters in this Act... It will help both homebuyers and developers The parts of the Act that talk about homebuyers are Sections 32 through 38. In any housing contract, the two parties involved are the buyer and the developer who builds the property. Here’s how this law aims to protect both parties in these uncertain times. For home buyers If you’ve bought a house, you would know that you need to pay the developer before collecting the keys to your new home. If you don’t pay, they can impose late payment charges on you. But through this Act, your developer cannot count 18th March-31st August 2020 when including the late charges. This just means that you would have more time to make that final payment before moving into your house. When you buy a new house, there’s something known as a defect liability period. We’ve written an article on depth on this: [READ MORE: You now have more time to sue your developer in Msia for building defects. Here's why] Usually, once that period is up, you cannot ask your developer to reimburse you or to fix any defects you come across. Again, through this new Act, the entire period of 18th March-31st August 2020 cannot be counted in the liability defect period. So, let’s say that you had 5 years initially. Now, you can add this time to that 5 years. This extension isn’t just given to you to report any defects in your home, but it’s also extra time for your developer to fix whatever problems there are. For developers If you didn’t already know this, developers must complete the building of their customers’ homes by a certain time. For landed properties, they have 24 months to complete them, and for strata properties such as condos, apartments, any other high rise property and gated communities, they are given 36 months. Failing to do so means that the buyer can take legal action against them. But again, this Act will not count 18th March- 31st August 2020 in that period of 24 or 36 months needed to complete the respective properties. You might be a bit confused at this point, as the ‘leeway’ ended on 31st August, while the law was passed nearly two months later. The good news is, this extra time can be further extended to 31st December 2020. However, in order to get this extension of time, you’ll need to write to the Minister of Housing and Local Government. Only if they are convinced that your case requires an extension, will they allow you more time. There are still some things that will remain unchanged despite this Act being in effect. For example, let’s say your developer was late in handing over your new home to you last year. You then decided to take them to court over this. Because this happened before the MCO and pandemic started, you still have the right to take them to court. In other words, you won’t lose your right to legal redress over something that took place way before the MCO started. And if either party was ordered to pay a reimbursement to the other at that point, they are still obliged to pay up. There may be one more burning question in your mind as you read this, which is if this extension of time will affect the progressive interest of your loan. Progressive interest is an interest paid on different stages of payments made by the bank to the developer. Unfortunately, there has been no mention of that. But if we do come across any new information, we’ll make sure to update this article."
"In Malaysia, can you sue the carpark management if your car is broken into? Imagine this: You head to the nearest shopping mall to do some quick grocery shopping. You finally find a parking space far across the mall’s entrance and park there immediately. Half an hour later, you’re back at the carpark walking towards where you parked your car and you realise—the passenger seat window has been smashed open. Shocked and angry, you make your way to the mall’s management office and tell the staff what happened. But all the staff did is tell you that there is nothing he can do about it while pointing at a sign board that says “PARK AT YOUR OWN RISK”. The question now is, can carpark managements tell you they’re not responsible if something happens to your car? But first, let’s look into the legalities carpark managements rely on. Carpark managements can exclude themselves from responsibility If you frequently go to the mall (or you did before COVID-19 came about) you may be familiar with seeing signs such as “PARK AT YOUR OWN RISK” or “THE MANAGEMENT IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE TO VEHICLE”. These words that you will see in some carparks are known as exclusion clauses. In this context the management will not be liable for any loss or damage caused in parking lots when you park your car or other vehicles. Exclusion clauses don’t just appear in sign boards at carparks, but it can also be found in receipts or tokens and even notices passed to people. Basically, the carpark management must ensure that its exclusion clause is easily seen by people and the clause itself isn’t hard to understand. In Malaysian Newsprint Industries Sdn Bhd v Perdana Cigna Insurance Bhd & Ors [2008], the courts stated that an exclusion clause will be meaningless if it isn’t effectively communicated to the people. Exclusion clauses must be clearly seen and it must be easily understood by people. We previously wrote about what happens when a car is stolen from valet parkings. The law is somewhat similar in this situation too, and here’s what the lawyer said for that scenario: “How much responsibility can be avoided depends on the extent of the exclusion clause. These are interpreted strictly and a ‘contra-profarentum’ rule applies—any ambiguity in the clause will be interpreted against the business trying to exclude responsibility.” - A corporate lawyer, in interview with ASKLEGAL The ‘contra-profarentum’ rule, which is a contract law rule says that any clause which is unclear or ambiguous can be interpreted against the party (the carpark management) that created the rule. This pretty much protects customers from companies trying to exclude liability for way too many things, such as floods or their own carelessness, and the law will hold the company liable for anything it doesn't cover. For instance, some car parks might put up a sign that says, “The management will not be responsible for damage to your car”. They didn’t state whether the management will be responsible for other damaged vehicles. The rules are considered rather vague in that sense. So using the ‘contra-profarentum’ rule, the management would be held responsible in these situations. [READ MORE: In M'sia, can you sue someone for breaking a contract if your name isn't mentioned in it?] So can you sue them or...? In this scenario, it can be a little tricky to claim from the management. Unless the damage was caused by the carpark management, in that case they are liable for it. However, if this was done by someone else and the carpark management has already put up signs and notices staying they’re not responsible for theft or damage to your car—there is not much you can do to the management about it. While we can’t do much in the unlikely event of getting robbed, we can control a lot of the risks by taking simple precautions. When you’re parking your car, take precautions like making sure you bring along your valuables, lock your doors, and park your car in a safe location which isn’t too dodgy or hidden."
"Lelaki ni berhutang RM70,000 dengan bank, selepas ditipu ejen hartanah [Click here for English version] Korang dah lama ada impian nak memiliki rumah sendiri. Lepas berbulan-bulan mencari, akhirnya korang jumpa seorang ejen hartanah yang tawarkan sebuah kondominium mewah untuk dijual. Bukan tu je, kondo tu juga lengkap dengan perabot dan datang dengan rebat tunai sampai 60%! Dia beritahu yang tawaran tu sekali je seumur hidup dan korang kena bertindak cepat sebelum unit tu dijual. Lepas tu korang pun tandatanganlah SPA, ambil pinjaman dan tunggu untuk hidup selesa serta mewah macam yang diimpikan. Tapi…beberapa bulan lepas tu, korang terkejut bila bank kata korang belum bayar pinjaman korang tu. Sekarang ni, korang sangkut dengan hutang bank sampai RM70,000 dan ejen tu pula entah hilang ke mana. Inilah pengalaman yang dialami oleh seorang juruteknik yang dah ditipu oleh seorang ejen hartanah. Ini bagaimana kisahnya bermula… Ejen itu meyakinkannya bukan beli 1 unit, tapi 2 unit Kisahnya bermula bila Wong, seorang juruteknik, ternampak Skim Rumah Belia di media sosial pada sekitar tahun 2017. Tertarik dengan skim tu, seorang ajen hartanah ada memberitahunya yang dia boleh memiliki sebuah unit dengan 2 bilik di Johor Bahru pada harga yang cuma RM390,000. Ajen tu juga kata yang dia tak perlu bayar wang pendahuluan, asalkan dia bagi sejumlah wang terlebih dahulu kepada ajen tu, yang akan digunakan oleh ejen untuk bayar unit kondo tu. Ejen tu juga berjanji yang dia akan membayar ansuran pinjaman bulanan, kerja-kerja pengubahsuaian dan malah jamin akan ada penyewa sebagai pendapatan tambahan untuk Wong. Ejen tu turut meyakinkan Wong untuk beli 2 unit kondo – yang katanya boleh digunakan untuk pelaburan dan Wong boleh jual salah satunya nanti. Bila dengar macam tu, Wong pun percaya dan terima cadangan ejen tadi. Ejen tu kemudiannya buat permohonan pinjaman untuk setiap unit dengan harga RM500,000. Tapi, selepas beberapa bulan berlalu, Wong mula dapat panggilan dan surat amaran dari pihak bank yang kata bayaran pinjamannya tertunggak dan semakin bertambah. Bila sedar ada benda yang tak kena, Wong pun pergi tengok sendiri unit yang dia beli tu. Bila sampai, alangkah terkejutnya dia bila dapat tahu rupa-rupanya tak ada sebarang ubah suai yang dibuat dan unit tu pun tak ada penyewa. Wong lepas tu cuba menghubungi ejen tadi, tapi ejen tu beritahu yang dia cuma akan bayar pinjaman 2-3 bulan akan datang. Ejen tu kemudiannya tak dapat dihubungi dan hilang macam tu je pada Februari lepas. Dipendekkan cerita: Wong sekarang berhutang dengan bank sekitar RM70,000 dan kedua-dua unitnya tu pun bank dah lelong. Kesnya juga kemudiannya dipindahkan ke Mahkamah Majistret, di mana dia mengfailkan kes terhadap ejen hartanah penipu tu. Apa yang menimpa Wong ni memang betul-betul mengecewakan dan mungkin korang sendiri pun boleh faham betapa sedihnya jadi mangsa penipuan. Sebaiknya periksa dulu sama ada ejen hartanah tu sah atau tak Pada tahun ni, pembeli rumah boleh dianggap bertuah sebab Kempen Pemilikan Rumah (HOC) dah dilanjutkan dan ada macam-macam rebat yang ditawarkan. Bagaimanapun, kita semua tetap kena berwaspada dengan pelbagai teknik penipuan yang melibatkan penjualan hartanah. Jadinya, bila korang berjumpa dengan ejen hartanah – terutamanya kalau berjumpa secara atas talian, tanyalah dulu nombor pendaftaran mereka. Ini kerana, ejen hartanah di Malaysia ni dianggap sebagai profesional di bawah undang-undang. Perkara itu ada disebut dalam Akta Penilai, Pentaksir dan Ejen Harta Tanah 1981, yang menyatakan: (1) Tiada seorang pun boleh melainkan jika dia seorang ejen harta tanah berdaftar dan kepadanya suatu kuasa untuk menjalankan amalan telah dikeluarkan di bawah seksyen 16 – (a) menjalankan amalan atau menjalankan perniagaan atau bekerja dengan apa jua nama, stail atau gelaran yang mengandungi perkataan “Ejen Harta Tanah”, “Ejen Perumahan”, “Ejen Harta”, “Ejen Tanah”, “Broker Rumah” atau apa-apa perkataan lain yang seperti dengannya, dalam apa-apa bahasa atau mengandungi apa jua perkataan lain dalam apa-apa bahasa yang boleh dengan semunasabahnya ditafsirkan sebagai membayangkan erti bahawa dia adalah seorang ejen harta tanah berdaftar. Maknanya di sini, seseorang ejen hartanah tu kena berdaftar di bawah undang-undang terlebih dulu, sebelum boleh menjalankan tugasnya. Ada juga beberapa syarat untuk iklan hartanah yang disiarkan secara atas talian. Antaranya seperti iklan yang disiarkan tu mesti kena ada nama, nombor yang boleh dihubungi dan nombor pendaftaran ejen untuk membuktikan kesahihan iklan tu. Korang juga boleh cari ejen menggunakan nama, nombor kad pengenalan atau nombor pendaftaran mereka di pangkalan data LPPEH. Pangkalan data tu juga membolehkan korang menyemak sama ada sesuatu firma tu sah atau tak. Dalam masa sama, ejen hartanah tak sah boleh didenda hingga RM300,000, dipenjara hingga 3 tahun atau kedua-duanya jika sabit kesalahan. Oleh itu, sekiranya korang juga adalah mangsa seperti mana yang dialami oleh Wong, cara terbaiknya adalah korang buat dulu laporan polis terhadap ejen yang terlibat tu. Akan tetapi, korang masih berisiko menanggung hutang yang diambil di bawah nama korang, melainkan korang berjaya membuktikan yang korang tak setuju atau tak pernah membenarkan sebarang urusan jual beli hartanah."
"In Malaysia, you may be jailed or fined for leaving your house vacant for too long One day, you get a call from the Majlis Perbandaran of a certain area. You happen to have a home there that you haven’t been to in years because it’s really far away. The Majlis representative tells you that you’ve been slapped with a hefty fine for leaving your home vacant for that long. They go on to say that over the years, there have been overgrown plants in your home that have creeped into your neighbours’ compounds. There have also been snakes in hiding in all that mess, making your neighbours worried for their safety. This particular scenario may be something you don’t hear of often, but almost all of us have seen abandoned homes around. While they can be unpleasant to see, the problem is much more than that. Abandoned homes can make it unsafe for others living near the premises, and they can also affect the quality of life for them. And because that, you can get in trouble for not looking after your home. Your Majlis Perbandaran can take action against you There’s actually a written law that allows your local authority to penalize you for leaving your home unattended to. Section 74 of the Local Authorities Act 1976 says: Any owner, occupier or tenant of any house, building or land...who suffers the same or any part thereof to be in a filthy and unwholesome state or overgrown with rank or noisome vegetation, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one thousand ringgit or to a term of imprisonment not exceeding six months or to both...and to a further fine not exceeding one hundred ringgit for each day during which the offence is continued after convictions In other words, this law says that a person who lives in a home that is kept in a dirty state can be fined a maximum of RM1,000, be jailed for 6 months, or both. There’s also an additional fine of RM100 for each day that the offence is still done even after that person is caught. You may have noticed that the key words above are keeping the house in a ‘filthy and unwholesome state’. So of course, this also means that a person can be penalized under this same law even if they still in live in that house—it does not necessarily need to be vacant. If you remember, there was a case early last month involving an elderly lady who had been hoarding garbage all around her house. It became unbearable for many of her neighbours, to the point that one of them filed a police complaint. In her case, she wasn’t taken to court, and that’s because she’s believed to have a mental disorder. But this article is specifically on vacant homes that are in a dirty state, making it unpleasant for others to live in that area. And the law that was just mentioned above is exactly what’s being used to tackle the issue of vacant homes in Malaysia. For example, the Petaling Jaya City Council (MBPJ) have been enforcing this law in their municipality and have even set up a taskforce just to identify and deal with abandoned homes. The law used to allow another person to live on your land This may be a slight diversion from what we’re talking about, but it’s still somewhat related to it and is more of an FYI. When the British were in our country, there used to be a law called ‘adverse possession’. Ironically, the law itself comes from Britain but they themselves eventually abolished it here. Basically, this law allowed someone to take over your land and legally make it theirs if you had left it vacant for a long time. This started somewhere in the Middle Ages, in a time of economic hardship where many people were left homeless, but there was a lot of land that had been abandoned. These people ended up becoming squatters on land that was left empty, eventually making it their own. The authorities then saw fit to allow these people to take the land as theirs, since they had been looking after it, and their original owners had abandoned them anyway. This law eventually came to Malaya, but as mentioned earlier, it’s been abolished—especially after the National Land Code came into effect. People DID try to claim adverse possession even after that, but the courts rejected them. Interestingly, this law still exists in the UK. However, it’s slightly different from what it used to be. Back then, a person who lived on another person’s land for 12 continuous years could take that land as theirs. Now, living on it alone isn’t enough. To be able to claim that land as theirs, they have show that they’ve done enough to make that place their home (furnished it further, spent money on it etc.). In Malaysia, the law doesn’t allow someone else to live on your land and maintain it as their own. And that’s exactly why you can get in trouble for not doing so yourself. Your neighbours can also sue you for nuisance We previously wrote an article on suing a neighbour whose tree grows into your compound. Let’s say neighbour A’s tree is growing into neighbour B’s compound. In this instance, neighbour B can cut off the branches that grow into their compound without getting neighbour A’s permission. But besides that, neighbour B can also sue their neighbour in court for private nuisance. So let’s say you leave your home vacant for years and your tree has now grown into your neighbour’s compound. To sue you for this, your neighbour would have to prove that: They own the property they live on and they have the right to possess it; You, the neighbour, acted in a way that has interfered with their enjoyment and use of their property; and This interference was substantial and unreasonable So if you left your home in such a bad state that it’s impossible for others to live peacefully in their own homes, they may have a cause of action against you. The bottom line is this: While you may have bought that piece of land and it’s yours, you still have a duty to keep it in a reasonably clean state. If you fail to do so, both the local authority and your neighbours can hold you responsible. [READ MORE: The Malaysian government CAN legally take your land and property...under 3 conditions]"
"In Msia, you can donate your organs when you die. But can you donate your whole body? Organ donations isn’t something you might hear very often, but it actually isn’t new in Malaysia. But it isn’t done automatically, as our country uses an opt-in system, where you need to sign up to have it donated after you pass away. But what if, instead of saving a life with your organs, you wanted to donate your body for other purposes? Maybe you’d fancy having your deceased body to be used by doctors to study and practice surgery on. Or for the adventurous: have it turned into a work of art. Do our laws actually allow that? There’s an Act for that Surprisingly, yes. The law that governs body donation is called the Human Tissues Act 1974. And as we found out, donating your body is a pretty simple process. We consulted a lawyer, Fahri Azzat, about this. Under Section 2(1) of the Act, one of the ways is to do it in writing, which essentially is writing a will. In it, you can request certain parts of your body, or your whole body, be used for medical or research purposes. “Yes, you can. Section 2(1) reads: ""(1) If any person, either in writing at any time, OR, orally in the presence of two or more witnesses...."" That could refer to a Will. Sometimes I include the disposal of the cadaver as part of the testator's wishes.” – Fahri Azzat, lawyer, (emphasis added) The other way to do so, is by verbally informing two or more witnesses of your intentions. However, it must be done during your “last illness”, which is your dying moments. So in case you forgot to write it down, you still have one last chance to do so. Interestingly, the law does not discriminate between Muslims and non-Muslims, or any other religion for that matter. So as long as you’ve made a will or a final request, your body can be given to science. What if your family disagrees? Even though you yourself might like the idea of donating your body or organs, your family members might not agree to it. And if they object to it, they can stop your organs or body from being donated. According to Section 2(2) of the Act, the organisation can only use your body, IF they’ve done a reasonable inquiry, and have no reason to believe that: You changed your mind before dying Your spouse or next-of-kin objects to it This is quite common in Malaysia, where family refusal rate for organ donations is at 57%. According to director-general Dr Noor Hisham, there is still social stigma about organ donations, as well as religious and cultural beliefs against it. Currently, Malaysia has one of the lowest rates of organ donation in the world. Our rate of deceased organ donation is at 0.7 pmp (per million population), compared to countries such as Saudi Arabia (4.5 pmp) and Iran (2.9 pmp). Sometimes, your family is just worried that your body will be misused, but rest assured. Under the Act, your body can only be used the way you’ve pledged it. Any organ removals can only be done by a medical officer. And before they do so, at least two of them need to make sure that you’re really deceased. So unless you’ve pledged your body to a suspicious back-alley doctor, your body will be used the way you intended it to. For science! In case donating your body seems bizarre, it’s not uncommon for doctors to practice surgery on cadavers – which is what we call dead bodies used for those purposes. Practicing on animals aren’t ideal as we’re anatomically different, while practicing with live patients is dangerous because of potential mistakes. Which is why dead bodies are ideal for practice: mistakes aren’t...deadly. Some programs, like the Silent Mentor Programme, welcomes bodies to be donated for study purposes. A few local universities such as Universiti Malaya, Universiti Sains Malaysia and International Medical University are under the programme. But they require support from family members, so if any family members object, they will not claim the body. There are also organisations such as Body Worlds (warning: graphic images in the link) from Germany, which turns the human body into anatomical exhibits. Their purpose is to educate people on the human body, and you could see displays such as the human nervous system spread out, to enable us to understand our own bodies better. However, this organisation has courted controversy in the past, due to suspicions about how their bodies were sourced. Our friends at Cilisos have also written about how unclaimed bodies are used by universities, which you can read about here. Interestingly, Fahri seemed keen on the idea of donating his body, but does question if it’s still useful by then. “Yes, I would. I don't know whether it be of any value by the time they have it though, but if they are willing to take it, let's go!” – Fahri So if you believe in using your body to its full potential, even after you pass away, now we know that you can donate your body to science."
"Gadis ni saman cikgunya yang tak datang sekolah selama 7 bulan. Ini kisahnya [Click here for English version] Kalau korang masih ingat, pada tahun lepas kami ada tulis satu artikel tentang seorang kanak-kanak 6 tahun yang saman kerajaan Malaysia. Jika macam tu, dia boleh dikatakan sebagai antara orang paling muda yang pernah saman kerajaan dalam negara ni. Bagaimanapun, kes saman itu difailkan melalui bapanya, sebab dia masih lagi kanak-kanak. Tapi untuk kali ni, seorang gadis berusia 20 tahun dari Sabah mungkin boleh dikatakan sebagai orang paling muda di Malaysia yang pernah saman seseorang dengan sendiri, tanpa diwakili oleh orang lain. Gadis ni dah bertindak menyaman gurunya yang tak datang sekolah hampir setahun lamanya. Dia percaya disebabkan perkara itu, dia tak bersedia menghadapi SPM, yang kemudiannya menyebabkan dia gagal subjek Bahasa Inggeris. Mungkin ada di antara korang yang pernah dengar kes ni dulu. Sebenarnya, kisah ni masuk berita beberapa tahun lalu, tapi kesnya rupa-rupanya hanya akan didengar di mahkamah pada bulan depan. Ia mengambil masa lama, sebab… Kisahnya bermula pada tahun 2015 Gadis yang dimaksudkan dalam kes saman ni adalah Siti Nafirah yang juga pelajar Tingkatan 4 pada tahun 2015. Pada masa tu, guru Bahasa Inggerisnya didakwa tak datang mengajar selama lebih kurang 7 bulan berturut-turut. Dan seperti mana yang diberitahu awal tadi, disebabkan hal itu – Nafirah gagal subjek Bahasa Inggeris dan dia percaya yang perkara tu ada kaitan dengan tindakan guru yang tak datang dan mengajar mereka secukupnya. Tapi, dia taklah terus saman gurunya tu. Sebab, pada mulanya dia ada buat aduan tentang hal tu kepada pihak sekolah. Tapi, tak ada apa-apa tindakan yang diambil terhadap guru berkenaan. Pada masa itulah, Nafirah bertindak saman – bukan saja guru tu, tapi juga pengetua sekolah dan Kementerian Pendidikan Malaysia. Kalau korang tertanya-tanya kenapa macam tu, rupa-rupanya masa Kementerian Pendidikan datang menyiasat kes tersebut, pengetua sekolah didakwa dah memalsukan rekod kehadiran guru tersebut. Jadinya, dari menunjukkan yang guru tu tak datang selama tujuh bulan, rekod hanya menyatakan yang dia tak datang selama dua bulan je. Pengetua tu turut dikatakan mintak pelajar lain cakap benda positif pasal guru tu, dan ini menjadikan kisah Nafirah sukar dipercayai. Bila dia sedar yang isu tu tak boleh diselesaikan melalui peringkat dalaman, Nafirah pun ambil keputusan untuk guna jalan undang-undang dengan saman mereka. Antara faktor saman tu adalah: salah guna jawatan awam (menyalahgunakan kuasa mereka sebagai penjawat awam) melanggar tugas berkanun di bawah Akta Pendidikan 1996 (mereka gagal menjalankan tugas sebagai pendidik/Kementerian Pendidikan) menafikan haknya di bawah Perlembagaan untuk mendapat pendidikan Pihak yang dia saman adalah guru, pengetua sekolah, pegawai Jabatan Pendidikan Kota Belud, Pengarah Jabatan Pendidikan Negeri Sabah, Ketua Pengarah Pendidikan, Kementerian Pendidikan Malaysia dan Kerajaan Persekutuan Malaysia. Pada saat semua ni berlaku, beberapa tahun pun berlalu sehingga sampai ke tahun 2018. Dia tidak dibenarkan saman pada mulanya Kalau korang tertanya-tanya kenapa kes ni ambil masa yang lama, ini kerana kes tu pada mulanya tak dapat lampu hijau untuk didengarkan. Jadi, kalau korang tak berapa tahu tentang macam mana prosiding sivil berjalan, ini panduan ringkasnya: Korang boleh failkan kes di mahkamah melalui peguam Korang menyerahkan tuntutan kepada pihak lain dan menunggu mereka membalasnya Mahkamah kemudian akan melihat apakah itu berkaitan dengan isu undang-undang sebenar yang memerlukan penglibatan mahkamah Jika ada, mahkamah akan membenarkan korang meneruskan kes tersebut. Sekiranya tidak ada, tuntutan korang tu akan ditolak Maka dengan kata lain, bukan semua kes yang difailkan di mahkamah akan didengar oleh hakim. Sebaliknya, hanya yang ada asas yang cukup, barulah mahkamah akan mengendalikan kes tersebut. Dalam kes Nafirah, pihak-pihak yang dia saman, ada buat permohonan supaya ia ditolak. Bagaimanapun, pada Julai 2019 – Mahkamah Tinggi dah membenarkan tunutan itu diteruskan. Cumanya, ada satu je yang mereka tak benarkan Nafirah saman, iaitu sekolah. Sebabnyam, hakim berpendapatan sekolah bukanlah satu badan undang-undang. Walaupun begitu, guru dan pengetua tetap disaman sebagai individu. Ia seterusnya mengambil masa beberapa bulan untuk kedua-dua pihak mengemukakan tuntutan mereka dari kedua-dua belah pihak. Dan akhirnya, mahkamah menetapkan tarikh 4 hingga 8 Mei 2020 sebagai tarikh perbicaraan. Tetapi seperti mana yang kita semua tahu, pandemik Covid-19 pula mengganggu dan perbicaraan terpaksa ditangguhkan. Kes ni akhirnya akan didengar pada November 2020 Akhirnya, setelah mengambil masa yang panjang – kes ni akan didengar di Mahkamah Tinggi Kota Kinabalu pada 2 hingga 6 November 2020. Kes ni nampaknya, akan mula dibicarakan dan kita masih tak tahu lagi apa keputusannya nanti. Apa yang pasti, kami akan tulis artikel susulan untuk korang semua. Selain itu, korang juga kena tahu disebabkan kes ni didengar di Mahkamah Tinggi, apa saja keputusannya nanti akan masih boleh dirayu di Mahkamah Rayuan dan seterusnya di Mahkamah Persekutuan. Selain itu, kes ni nanti sudah semestinya akan mengambil masa beberapa tahun juga sebelum ia diputuskan."
"A Malaysian woman was caught for prostitution while her client was not...but why? More than 3 years ago, we wrote an article on whether prostitution is actually legal in Malaysia, and you give this a read here. The answer isn’t a hard yes or no, and this may have to do with how the law is worded. What we can tell you is that a person CAN get in trouble for running a prostitution ring, or even offering these services on their own. Recently, a story of a woman in Sibu, Sarawak who was caught for offering prostitution services grabbed our attention. The ‘wait, what?’ moment in the story is that the person who asked her for the service was let off scot-free. So while a person who offers prostitution services can get in trouble under the law, what does it actually say about people who go after the services? The law is pretty vague in this matter Sections 372, 372A, 372B and 373 of the Penal Code are the general laws on prostitution in Malaysia. These sections basically say that it’s illegal for anyone to force someone into prostitution , to be in charge of a brothel, to advertise prostitution services as well to be a prostitute. Section 372B specifically says: Whoever solicits or importunes for the purpose of prostitution or any immoral purpose in any place shall be punished with imprisonment for a term not exceeding one year or with fine or with both. Interestingly, there is no express provision on what happens to a person who seeks the services of a prostitute. Section 372(1)(e) does say that a person who sees an advertisement for prostitution, knows exactly what it’s about and responds to it, can be penalized. But this a very specific example and it doesn’t really cover the other instances a person may seek out prostitution services. She was subjected to a hefty fine Now coming back to the story of the lady: She was said to have been found with the man in a hotel, but we don’t know much about when exactly this happened. But what we do know that she comes from a difficult background, which is believed to be the reason she ended up providing these services. If you remember reading this earlier, we mentioned that a person found guilty of prostitution can be either jailed, fined, or both. When this lady was taken to court, she was fined RM3,000 and would be jailed for 2 months if she failed to pay it. She was also fined a further RM1,300 and would have to be jailed for a month if she didn’t pay it. So in total, she was asked to pay RM4,300. In a letter by the Sarawak Women for Women Society (SWWS), it was said that the lady had only RM70 on her when she was charged in court, which is believed to be the amount she got from the client. SWWS believes that she may now be in jail as she would have been unable to pay the fine. They also said that although she has a local-sounding name, she does not have any identification documentation on her, and this may just make things more difficult for her. There are calls for the law to be changed If you think that this is just a one-off case, it isn’t. Just last week, a single mother of 7 also appeared in court after being charged with prostitution. This lady, who is from Perlis, was ordered to pay a fine of RM4,000 and if she failed to do so, she would need to serve an eight-month jail sentence. Again, this lady is also believed to have offered such services due to financial hardships. In 2009, there was also a mother and 14-year-old daughter who were arrested for offering prostitution in Sarawak. In all these cases, it has been seen that each time, the clients who sought after these services have not been penalized, nor have their identities been disclosed. However, the women who were caught for prostitution have been fined, and their names have been released to the public. Several groups, such as SWWS, have been asking for a reform in the law, so that even those who were clients of these women can also be held responsible. “Prostitution only exists if there is a client prepared to pay a fee for a service he wants yet it is the woman who is penalised rather than the man. If there are no clients, then there is no prostitution so why is it the woman who is the only one penalised?” -Sarawak Women for Women Society (SWWS) Malaysia happens to be a signatory to the United Nations Convention on the Elimination of Discrimination of Women (CEDAW). This means that our laws must be fair and equal to everyone, irrespective of gender. According to SWWS, one way to prevent women from resorting to prostitution would be providing them with employment opportunities. It’s worth mentioning at this point that clients of prostitution CAN be arrested and tried in court. However, it will most likely not be under the Penal Code, as it does not specifically provide for this. If they are charged, the courts would need to use another law on them."
"In Malaysia, can your boss deduct your salary AFTER he overpaid you? NOTE: This article applies to employees governed under the Employment Act (EA) with a monthly salary not exceeding RM2,000. “Non-EA Employees” will be governed by the terms of their contract of employment. So payday is finally here! You eagerly check your bank account and to your surprise, you see that your boss has paid you MORE than your average salary. You don’t know if you should alert your boss about this, and when you had to decide between ethics and money—you chose the latter for survival. One whole month passed and nobody asked you anything or told you about the extra money banked into your account. You (AGAIN) eagerly check your bank account on your next payday and realise—your salary has been deducted this month! Shocked by this (and feeling slightly guilty) you ask your boss why your salary has been deducted out of nowhere. He proceeds to tell you about the payroll error that happened in the previous month which made the company deduct your salary for this month. But the question now is...can your boss actually deduct your salary if he accidentally overpaid you before? Your boss cannot deduct your salary unless… ...it is a lawful deduction of your salary. Your boss has the right to make certain cuts where necessary for monthly contributions like EPF & SOCSO, and a long list of other things that you can find in Section 24 of the Employment Act 1955. One of it is the overpayment of an employee’s salary for a certain period of time. Section 24 (2) of the Act states this as follows: (2) It shall be lawful for an employer to make the following deductions— (a) deductions to the extent of any overpayment of wages made during the immediately preceding three months from the month in which deductions are to be made, by the employer to the employee by the employer’s mistake; Basically, it is legal for your boss to deduct your salary if he overpaid you by accident. However, he can only do this in the immediate preceding 3 months where your salary has been paid. For instance, if your boss overpaid you in September, he is still legally allowed to deduct your salary within the next 3 months—which are in October, November and December. Anything after that, it is considered unlawful, and you can take action against your boss and company. [READ MORE: Your company not paying your EPF? Here’s what you can do] But before your boss actually deducts your salary, he must inform you about it. The last thing you want is to see a lesser amount in your bank account on payday. So companies normally give a heads up to employees first before deducting their salaries. The deduction of the overpayment doesn’t have to be done immediately as well. The employee can repay the overpayment over a period of time, until they’re done with it. But what if you don’t consent to the deductions because it’s technically the company’s fault? The company will proceed with a lawsuit Now some employees might genuinely think they deserve the extra money, considering it a “bonus”. In this case, the employee may refuse the deductions of the overpayment. In this situation, the employer can proceed to file a civil claim in court, and recover the overpayment of salary. This is simply because the employee was never entitled to the overpayment in the first place. So the best resort for employers in this situation, is to act as soon as possible to recover the overpayment of the salary. But if you’re still unhappy with this or feel your company has unfairly cut your salary… [READ MORE: Can LHDN force your family members to pay YOUR tax...if you die?] Here’s what you can do your boss cuts your salary In the event your pay has been unfairly deducted, the first thing to do would be to talk to your boss and Finance & HR departments. It’s best to find out the reason behind your paycut. If they insist that they were right in cutting your pay (and you think it wasn’t), you can file a case in the Industrial Court. Section 30(5) of the Industrial Relations Act 1967 says: The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form. The Industrial Court will decide your case based on fairness and used the appropriate law to help the wronged party. There’s actually a law in the National Salary Consultative Council Act 2011 which states that an employer who does not pay his employees without a good reason is actually committing an offence. This can be found in Section 43 of the Act, which says: An employer who fails to pay the basic wages as specified in the minimum wages order to his employees commits an offence and shall, on conviction, be liable to a fine of not more than ten thousand ringgit for each employee. So, if your boss is shortchanging you for no valid reason, he’s going to end up paying a very, very hefty fine. [READ MORE: 5 things Malaysian employers pay on top of your monthly salary]"
"Domestic abuse victims often rely financially on abusers. How can they get help in Msia? Due to the MCO, most Malaysians have had to stay at home. One unintended consequence of this is a sharp increase in domestic violence—as the victims would be trapped at home with their abusers. Domestic violence doesn’t just involve one partner abusing another, as it also happens between family members and those staying together. Sometimes it can also happen between people don’t live under the same roof but have some relation to each other. The Women’s Aid Organization (WAO) said that they had received 234 calls and messages in the third week of April 2020 alone from women who had suffered some form of abuse at home. This number was four times higher than the usual number of calls and messages received before the MCO. And from 1st January-30th June 2020 alone, there were 1,721 cases of sexual crimes against children—not taking into account the other types of abuse suffered by children. These numbers are already very sad to see, but the sadder truth is this: *Many* cases go unreported While these numbers are high, these are just the ones who have been brought to attention. There are still many victims who suffer in silence due to various reasons. We spoke to Dato’ Fion Wong, a partner of Shang & Co., who deals with family law cases. According to her, some reasons victims don’t report their abuse are: embarrassment/stigma: victims who are men or women with high qualifications may feel that others would perceive them as weak, especially due to the assumption that abuse mostly happens in poorer households not being taken seriously: a lot of the time, people might only believe abuse has taken place if the victim has visible scars and bruises. However, it must be remembered that abuse can also happen sexually, mentally and financially, among other ways thinking the danger will never really go away: the abuser might have instilled so much fear in the victim, making them believe that they will always have control of the victim’s life, even if they get caught financial dependence on the abuser: the victim may be a partner or child of the abuser who depends on them financially, for food and shelter. Their worry is that they may not be able to fend for themselves if the abuser is caught For the purposes of this article, we’ll focus on the aspect of financial dependence. Victims can claim financial support from the abuser According to Dato’ Fion, not many victims are aware that they CAN continue to get financial help from the abuser even if the abuser is caught. This may give the victim more confidence to go ahead and report the abuse that they are suffering. To start with, there are various laws in place that deal with violence and abuse, such as the Domestic Violence Act 1994, the Penal Code and the Child Act 2001. In Malaysia, there are orders that can be issued against the abuser, that would prevent the abuser from coming anywhere near the victim. Emergency Protection Order: Can be issued to the victim within two hours of application by the Welfare Department. It is valid for 7 days. Interim Protection Order: Issued before the abuser is charged in court. Also valid for 7 days Protection Order: Issued after the abuser is charged. It is valid for one year and can be extended for another year, provided the trial is still going on in court. In some cases, the court can also allow the victim to have full control of the home that is shared by them and their abuser, so that they would have a place to stay. And of course, the abuser will not be allowed to stay there at that time. But in terms of getting financial help, victims are advised to speak to a lawyer first. Abusers can be still made to pay a maintenance, or monthly sum needed for the expenses of the victim(s). After a petition is filed in court, the court can order the abuser to pay up. The only reason an abuser can be exempted from paying is if they were never the main person to earn for the family. However, the other way victims can get help is by filing for divorce. Here, the assets that the victim and abuser own will be divided, and the victim will be able to take their share. Understandably, seeking legal help can also incur expenses. But if the victim needs legal aid, there are 4 ways they can go about it: The Legal Aid Department – they can help with both civil and criminal cases The Bar Council – they have legal aid specifically for family law, employment law and criminal cases National Legal Aid Foundation/ Yayasan Bantuan Guaman Kebangsaan Pro bono lawyers – lawyers who will take up the case for free, but each firm will have specific requirements to be met by the client What can YOU do to help victims? As mentioned above. abuse may be difficult to detect at first, especially if it isn’t physical. But if you suspect that someone you know may be going through abuse, check on them let them know that help is available. As mentioned, there are laws in place that can help deal with specific cases. Besides going to PDRM directly, which would be the first natural step, there are other avenues that victims of violence can also reach out to: Women’s Aid Organization: 03 7956 3488/ 018 988 8058 Talian Nur: 15999 Covid-19 psychosocial support hotline (also under WAO): 03-2935 9935 [READ MORE: Here's how domestic abuse victims can report their abuser in Malaysia] If the victim is too afraid to seek help, you can also reach out these bodies on their behalf, and they will take over the matter from there."
"Boleh ke kita saman syarikat pembinaan yang menyebabkan kita tercedera? Mesti anda ada dengar berita tentang dua kemalangan berasingan yang hampir saja meragut nyawa pada bulan lepas. Satunya adalah kes batu konkrit yang jatuh menghempap sebuah kereta di MRR2. Mujurlah pemandunya selamat, walaupun keretanya berada dalam keadaan remuk. Kes kedua pula melibatkan sebuah kereta yang ditimpa besi menara kren yang terjatuh dari sebuah treler di Jalan SS2. Bersyukur sekali lagi kita apabila tak ada sesiapa yang terkorban akibat kemalangan itu. Apa yang pasti, kes-kes yang berlaku ni nampaknya melibatkan projek pembangunan yang memang pesat berlaku di Malaysia. Dan hal ni juga semakin membimbangkan kita semua, kalau-kalau ia berlaku lagi di masa akan datang. Makanya, muncullah persoalan sama ada boleh ke kita ambil tindakan terhadap pihak yang menyebabkan kemalangan itu? Walaupun polis ada melakukan siasatan, mangsa itu sendiri sebenarnya masih boleh menuntut ganti rugi dari apa yang berlaku. Mereka boleh saman pihak yang bertanggungjawab kerana cuai. Akan tetapi, ia taklah semudah yang disangka. Sebabnya, perkara sukar itu dah pun dilalui oleh seorang lelaki yang terlibat dalam satu kemalangan melibatkan roda tren pada 18 tahun lalu. Lelaki yang menyaman Monorel Malaysia Kisahnya bermula pada 16 Ogos 2002 – apabila seorang wartawan, David Chelliah berjalan di sebuah jalan untuk pergi ke tempat kerjanya. Dalam perjalan itu, dia melalui bawah pembinaan landasan monorel yang baru saja dibuat. Pada masa tu, tren masih lagi belum beroperasi dan hanya dalam fasa percubaan. Jadinya, ketika David berada di bawah landasan itu, secara tiba-tiba roda tren jatuh dan mengenai dirinya, sampai membuatkan David dapat kecederaan serius. Dia kemudianya tak sedarkan diri dan dapat tahu yang berat roda tu hampir 14kg, sehingga menyebabkan dirinya: bengkak kelopak mata patah tulang di tengkoraknya darah beku di lubang hidung kanannya beberapa kecacatan fizikal lain yang dia rasakan di kemudian hari Lepas peristiwa itu, David sedar yang dia juga menghidapi masalah ingatan, penglihatan dan kepekaan. Dia turut mula hilang kekuatan pada bahagian tangan dan ia menambahkan lagi kesukarannya untuk bekerja sebagai wartawan. Hal itu dah membuatkan kerjanya semakin terjejas dan dia tak boleh menjalani kehidupan normal seperti dulu. Menurutnya lagi, perkara itu memang tak dapat dipulihkan dan dia memerlukan penjagaan sepanjang hayat. Jadinya, David pun failkan kes di mahkamah pada 2003, di mana dia minta pampasan sebanyak RM5 juta, dan beberapa lagi kos tambahan: ganti rugi am (jumlahnya tak dinyatakan) ganti rugi khas sebanyak RM20,000 faedah kos dan perbelanjaan perubatan di masa akan datang sebanyak RM5,000 sebulan Kes tu berjalan selama 10 tahun Dalam kes ni, nampaknya David bertindak menyaman Monorel kerana kecuaian mereka merancang, mengeluarkan, memasang bahagian tren dan mengendalikan tren tersebut. Dalam masa sama, untuk menyaman seseorang atas sebab kecuaian, si penuntut kena membuktikan perkara-perkara berikut: bahawa orang yang menyebabkan kemudaratan terhadap anda mempunyai kewajiban penjagaan di bawah undang-undang bahawa mereka melanggar tanggungjawab itu dengan melakukan tindakan cuai, atau gagal mengambil langkah berjaga-jaga yang cukup bahawa tindakan cuai mereka inilah yang menyebabkan anda mengalami kemudaratan/kecederaan kecuaian mereka dari awal lagi berkemungkinan besar akan menimbulkan bahaya kepada anda Dalam kes David, semua perkara di atas ni ada asasnya… tapi ada satu masalah pula. Sebab, tuntutan kecuaian juga menghendaki orang yang mengemukakan tuntutan itu, mangsa, untuk membuktikan dengan tepat tindakan apa sebenarnya yang menyebabkan kecederaan mereka. Sebagai contoh, David kena tahu sama ada kegagalan mengetatkan roda atau kualiti buruk bahan yang menyebabkan roda itu jatuh menghempapnya. Ia memang agak sukar untuk dijelaskan dalam beberapa kes dan sukar juga untuk diceritakan dalam kes David ni. Bila kes ni sampai ke Mahkamah Tinggi, tuntutan David untuk pembayaran sementara (interim) sebanyak RM250,000 dah ditolak. Pembayaran sementara ni selalunya akan diberikan kepada mangsa sebelum keputusan kes dibuat, dengan cara ni bolehlah wang itu digunakan dulu untuk menampung perbelanjaan. David kemudiannya membuat rayuan terhadap keputusan ni dan pergi ke Mahkamah Rayuan. Di sana, mahkamah membenarkan David menerima pembayaran sementara, tapi jumlahnya diturunkan kepada RM50,000. Namun, yang ini hanyalah pembayaran sebelum keputusan akhir, dan keputusan itu masih belum dibuat. Dalam masa sama, masalah juga timbul untuk menentukan apa tindakan kecuaian sebenarnya yang dilakukan oleh syarikat sehingga menyebabkan roda itu jatuh menimpa David. Mahkamah menerapkan peraturan khas untuk memutuskan kes ini Biarpun undang-undang itu tegas, masih ada pengecualian terhadap peraturan umum. Samalah dalam kes David, yang mana ada cara tertentu untuk membantunya. Walaupun ia adalah tugas si penuntut untuk memberikan bukti punca kecederaannya, prinsip yang dikenali sebagai res ipsa loquitur (kenyataan memperjelaskan dirinya sendiri) akan mengalihkan tugas ini kepada syarikat yang sedang disaman. Jadinya sekarang, bukannya David yang kena membuktikan Monorel cuai, sebaliknya Monorel yang kena membuktikan yang mereka TIDAK cuai. Kalau mereka gagal membuktikannya, mereka secara automatik akan didapati bersalah atas kesalahan kecuaian. Bila keputusan akhir dibuat, hakim mengatakan – tidak normal untuk roda kren jatuh begitu saja sehingga mengenai seseorang. Jika ia berlaku, roda itu sama ada tidak dipasang dengan betul, atau sekrunya tercabut. Jadinya, walaupun punca yang tepat tidak dapat diketahui, boleh dikatakan bahawa roda itu tercabut disebabkan kecuaian seseorang dalam syarikat. Syarikat itu juga tak dapat membuktikan bahawa mereka cukup berhati-hati, dan oleh itu, mereka didapati melakukan kecuaian. Pada 2012, David dan Monorel bersetuju menyelesaikan isu pampasan melalui mediasi dan bukannya di mahkamah. Prosiding mediasi adalah cara di luar mahkamah dan secara amnya lebih sulit daripada proses mahkamah biasa. Disebabkan hal itu, kami tak tahu berapa jumlah sebenar yang David dapat. Oleh itu, apa yang kita dapat faham dari kes ni adalah, bukanlah mudah untuk buat tuntutan terhadap syarikat pembinaan sekiranya kita tercedera. Tapi, apa yang baiknya – masih ada pengecualian yang dapat membantu mangsa, ketika mana memang susah untuk membuktikan punca kecuaian dengan tepat. Dalam kes melibatkan dua pemandu kereta yang tercedera dan kereta mereka remuk sama sekali, mereka juga sebenarnya boleh memfailkan tuntutan. Tapi, sama ada mereka akan berjaya, ia bergantung sepenuhnya kepada keputusan mahkamah."
"What happens if your signature changes after signing a document in Malaysia? One day, you decide to cancel your credit card, so you make your way to the bank. You sign off on the cancellation form, and the bank staff takes it away to process it. She comes back and says your signature on the form does not match the one in their records. Because the signature doesn’t seem to be yours, she rejects your credit card cancellation. You try and explain that you haven’t signed something in a long time, and that’s why it’s different. Still, she says that she cannot help you. This is just one example of a person’s signatures not matching. But almost all of us can probably relate to our signature changing over time we grow older. We might genuinely be unable to replicate a signature we’ve been using for so long. So, what happens if our signatures actually change? We spoke to a lawyer to get some insight into this and here’s the first thing he told us… There are two types of signatures Signatures may seem like a very simple thing, but they can actually be broken down into two, and the ‘seriousness’ of each type varies: Normal signatures – the type of simple signature you would use daily, such as on a friend’s birthday card or even your employment contract Specimen signatures – a copy of your signature given to banks or other such organizations that may require it So the main difference between the two types above is that for specimen signatures, the organization involved will actually keep a copy of your signature with them separately. And if your signature doesn’t match what they have, they have the right to reject whatever transaction you’re trying to do. According to the lawyer we spoke to, if you notice your signature has changed at some point, you need to let the organization know. They will then take a new copy of your current signature and save that as your specimen signature. This may, of course, require them to reconfirm your identity using your MyKad, or even directly calling up Jabatan Pendaftaran Negara (JPN). Banks can also use thumbprints as a way to verify that it’s the same person who had earlier transacted with them. Here’s an example of a document that requires a specimen signature and thumbprints for extra verification: What about contracts you’ve previously signed? Banks and other financial institutions aside, you may also be wondering what happens if your signature changes AFTER you sign a contract—any contract. The good news is that a change in signature will not affect the contents of the contract itself. Contracts will have witnesses when they are being signed. So at that point, they would be able to verify that the right person is signing in. But after that, as long as the contract is valid and both the parties are fulfilling their obligations, there is no need for the parties in question to sign anything again. It’s a different thing if you need to sign a second or third contract with the party you’ve been dealing with. In this instance, this will be a fresh contract and it will be totally separate from the first. So, the difference in signatures between the contracts will not play a huge role. Of course, there are other ways that people can retain their signature throughout their course of dealings, such as an e-signature or digital signature. You can opt for these types of signatures if it’s easier for you, and if the other party agrees to it. [READ MORE: Are digital signatures legal in Malaysia?] In any event, it’s best to always carry your IC and other other identification documentation with you, just in case you happen to have problems with signatures that don’t match."
"Is drunk driving a bigger crime than driving under drugs in Malaysia? We investigate Recently, a Malaysian woman who was under the influence of drugs crashed into a navy officer’s car—killing him on the spot. The video of the crash made its rounds on social media, and netizens even shared their thoughts on the possible sentencing the woman should get for the crime. The court finally decided on her sentence last week—where she was sentenced to six years + seven months’ in jail and fined RM 11,300 at the Johor Bahru Magistrate’s Court. Before we get into the reason behind her sentencing, let’s briefly look at some of the charges made against her at court. She pled guilty to 4 charges The woman, Nur Fatin Nasrah pleaded guilty to 4 charges read to her. She was charged under the Road Transport Act 1987 (RTA 1987) for driving under the influence of alcohol/drugs, driving without a license, and driving a car that didn’t have road tax and insurance. She has been given a six-year jail sentence and a fine of RM8,000—and an additional RM3,300 for driving illegally. Now there have been many questions on why the woman never got a life sentence or a longer jail term—as compared to other offences involving drugs in Malaysia. So here’s a breakdown on the penalties for each offence committed by the woman which led to her jailtime and fine: 1. Driving under the influence of intoxicating liquor/drugs (Section 44 of the RTA): Not less than three years and not more than ten years of jailtime, and a fine not less than RM 8,000 and not more than RM 20,000. 2. Driving without a license (Section 26 of the RTA): A fine up to RM 1,000 or jail term not exceeding three months or both. 3 + 4. Driving without insurance AND roadtax (Section 90 of the RTA): Liable to a fine not exceeding RM1000 and/or jail term not exceeding 3 months. [READ MORE: Do motorcycles in Malaysia need insurance to renew their road tax?] So as you can see from the above, the penalties for the offences committed above don’t exceed RM 20,000, based on the law. But this isn’t the only reason behind her sentencing... The laws have yet to be amended for a bigger sentence There’s a 9/10 chance you would have come across posts or memes about how unfair the law is on the sentencing given to the Myvi driver. Most of them were making a comparison between drunk driving and driving under the influence of drugs—specifically pointing out the penalties in the laws. But here’s the thing—Both drunk driving and DUI actually fall under the same law. Section 44 of the RTA states: “(1) Any person who, when driving a motor vehicle on a road or other public place— (a) is under the influence of intoxicating liquor or drug...and causes the death of or injury to any person shall be guilty of an offence and **shall, on conviction, be punished with imprisonment for a term of not less than three years and not more than ten years and to a fine of not less than eight thousand ringgit and not more than twenty thousand ringgit.” The law states that the fine will be between RM 8,000 and RM 20,000 and the jail term will be less than 10 years. Which is basically how the Myvi driver was sentenced to the punishments which some people might deem as not enough. This brings us to an update which was further confirmed by the current transport minister, to clarify the penalties given to the Myvi driver. The punishment for DUI will be increased, as the RTA has just been amended and passed in the Dewan Negara sometime last month—which is why it is yet to become the law and is still only considered a Bill. [READ MORE: Why does Malaysia take so long to create or change laws?] Any proposals to introduce or change (amend) a law has to go through the Parliament, the Senate, and the Agong before it can be accepted. A Bill is basically the proposal to introduce a new law or make changes to an existing one. And this process is pretty lengthy as it involves extensive discussion and negotiation among the parties who have an interest on the Bill, and those who will be affected by it—such as the government, NGOs, public interest groups and so on. It takes 30 days to get the Royal Assent in order for a Bill to become part of the law. And in this case, as the Bill was only passed last month, the effect of it becoming the law has yet to happen but will...soon. It is also against the Federal Constitution to punish the Myvi driver once the law is passed AFTER this, because she has already committed the crime and has been sentenced to it according to the laws now. Article 7(1) of the Federal Constitution states this as such: “No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.” But once the amendments are made to the Road Transport Act 1987, the punishment for DUI will now be a jail term of not less than 10 years and not more than 15, and a fine of not less than RM50,000 and not more than RM100,000, starting from the first offence committed. So at this point, the Myvi driver has been sentenced to the offence based on the current laws. However, there is a chance for the Deputy Public Prosecutor (DPP) to appeal for a higher sentencing."
"In the 1980s, a mentally-ill man sued the Msian govt...for accepting his resignation Normally, if you were to send a resignation letter to your employer, they would probably be in the right to accept it. But imagine that you were in the bouts of mental illness, and your judgement is impaired when you wrote it. Not only that, your employers knew you are suffering from it and might have written your resignation letter in that condition. Are they still wrong to accept it? In the 1980s, that happened to a mentally ill person, and his two brothers decided that it was wrong. They decided to sue the employer for accepting it—but there’s an extra twist: the employer was the Malaysian government. As we’ll see, they succeeded to go against the government and win their case. This case is still cited until now, because it’s an exception of an exception, where two laws were combined to make a decision. And also, because the government’s lawyer used an interesting tactic: they tried to avoid the case, by saying there is no case in the first place—that the brothers sued too late, way past the deadline. The teacher with a mental illness Kanesan s/o Muthusamy was a government school teacher, who started his teaching career on January 2, 1971 in Sekolah Tinggi Muar, a small town in Johor. But just 5 years into his teaching career, he started to suffer mental health issues. He started to go in and out of the psychiatric ward regularly, and during a one month stay in the University Hospital psychiatry ward on November 15, 1976, he was officially diagnosed with Paranoid Schizophrenia. According to a doctor’s report: ...(he had) an illness characterized by false morbid persecutory beliefs, as a result of which he was uncooperative, resistive and hostile. – Dr N. Raman, Pakar Perubatan Jiwa, Hospital Permai, Johor Bahru. In his paranoia, Kanesan believed that everyone was out to get him and wasn’t cooperating with the doctors and nurses. But his condition stabilised and he was able to return back to teaching temporarily. To help him ease back into work, a doctor recommended he get a fresh start, and he was transferred from Muar to Sekolah Menengah Jenis Kebangsaan, Melaka on February 1, 1977. But the new environment wasn’t enough to solve his issues. Just 4 months later, on June 29, 1977, deep in a bout of his paranoid schizophrenia, Kanesan wrote a resignation letter to his headmaster, Phua Chin Chew. Phua, despite knowing that Kanesan suffered from mental health issues, accepted his resignation letter. The brothers didn’t sue the government on time...or did they? When Kanesan’s two brothers found out about it, they approached Phua, and asked him to not accept the resignation letter, but to instead consult a medical board—which is a panel of doctors to examine him first. But Phua didn’t respond to their requests. He also ignored a letter from the Consultant Physician of Hospital Besar, Johor Bahru, notifying him of Kanesan’s mental health issues. Since Kanesan can’t represent himself, him being unsound mind, his brothers applied to the court to be his representatives. But this took some time to happen. After 5 years, on June 13, 1982, Kanesan’s brothers were finally appointed as the Committee to handle his affairs under Section 10(1) of Mental Ordinance Act 1952. Now that they are able to represent Kanesan, the brothers sued Phua and the school board. And since they sued a government school, on June 2, 1983, they technically sued the Malaysian government (we’ll explain more on this below). Their case: Phua Chin Chew, the headmaster of SMJK Melaka, should not have accepted Kanesan’s letter of resignation, as he was not of sound mind when he wrote it. According to the medical report submitted as the supporting evidence in the case: Kanesan first fell ill around August 1976. When Kanesan tendered his resignation letter on 29 June 1977, he was not of sound mind. Kanesan is still suffering from the mental illness. It is unlikely that he will ever get cured of Schizophrenia. He has not been of sound mind since he was first diagnosed in 1976 Phua knew about Kanesan’s condition. In fact, they didn’t dispute the report or that Kanesan suffered a mental disability, or that they were wrong for accepting his resignation. Rather, their defence hinged on a technicality: they can’t sue Phua, because they missed the deadline. You can sue the government...within a certain time frame As mentioned before, since Phua was a headmaster working for the government, they are technically suing the Malaysian government. When encountering the government in a civil case, there is a special law regulating cases that filed against the government. This is known as the Public Authorities Protection Act 1948, a sort of protection for government servants. Under Section 2(a) of the PAPA 1948: The suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty-six months next after acts, neglect or default complained… So you can sue the government, but you have to do it within three years after the incident happened. The starting date is the day the dispute happened. But if you have a disability, which in Kanesan’s case, schizophrenia, you’re given a different time frame. Under Section 24(1) of Limitation Act 1953: If on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years… So for people with a disability like Kanesan’s, you can file it against anyone within six years. The starting date is when the disability stops or when there is a Committee appointed. Now the court has two time frame to consider whether Kanesan has a case: Is it three years, which is the time limit in government civil cases. Or, Six years for the disabled, with the starting date counted from when you have a representative or is finally sound of mind. So, which one should the court follow? Why not both? Time period The court decided that since this is a case against the government, the period of limitation should be three years. The six years period only applies if the Government is not a party. Namely, if Kanesan sued a private school instead, then he can file a case within 6 years. But the court still has to decide when does that time period starts. Should it start when the resignation was handed, or should it be when Kanesan was either sound of mind or had a committee to represent him? The starting date There are three important dates in this case, which are: Kanesan tendered his resignation letter on June 29, 1977. Kanesan’s brother was appointed as his representative on June 13, 1982. Kanesan’s brothers filed the case on June 2, 1983. The court decided that for someone who suffers from a mental disability, he can’t file a case until he has a representative, as mentioned under the Mental Ordinance Act 1952. So the time period to file a case starts from the day his representatives was appointed, and not the date he tendered his resignation letter. So the starting date of his is June 13, 1982 when Kanesan’s brothers were appointed as his representatives, well within the three year limitation period. So the court decided to do two things: They went with the three year limitation period for government cases, BUT, they started to calculate the starting date based on someone with a disability. In effect, they combined two parts of a different law. This case set a special example for future cases: if two laws are in conflict, they must be read together, and a middle path is taken. This article is co-written by Tris and Ariff."
"Boleh ke perniagaan saman kita sebab bagi review tak baik tentang mereka?  [Click here for English version] Cuba bayangkan keadaan ni: Korang pergi makan malam dengan kawan-kawan dekat satu restoran baru buka ni. Makanan yang sampai tu pula nampak sedap dan menarik. Tapi, bila makanan tu masuk je dalam mulut, rasa nak marah pun ada sebab rasanya tak sedap langsung. Korang pun panggilah pelayan dan kata ada sesuatu yang tak kena dengan makanan tu. Malangnya, aduan korang tu tak diendahkan langsung. Jadinya, antara keputusan terbaik yang korang boleh buat adalah tinggalkan je restoran dan cari restoran lain. Tapi sekali lagi korang dikejutkan dengan restoran tu. Bila nampak bil – rasa nak pitam pun ada sebab bukan main mahal harganya. Dengan rasa seperti ditipu, kecewa dan marah – korang pun tulislah ulasan (review) yang paling jujur tentang pengalaman korang tu. Namun pada keesokan paginya, pemilik restoran dah hubungi korang melalui Facebook dan kata yang dia akan saman korang sebab bagi ulasan buruk pasal perniagaannya. Hal ini lah yang membangkitkan persoalan sama ada – boleh ke dia saman kita sebab bagi ulasan pasal perniagaannya? Ulasan buruk boleh saja… asalkan kita tak memfitnah sesiapa Dalam isu ni, setiap pemilik perniagaan mesti tak nak dapat ulasan buruk yang boleh mencalarkan reputasi mereka. Tapi, sebagai pengguna, kita masih ada hak untuk bagi pandangan jujur tentang sesuatu perniagaan tu. Bagaimanapun, mungkin ada di antara kita yang dengar pasal kes seseorang kena saman sebab bagi ulasan negatif terhadap sesuatu perniagaan. Salah satunya adalah tentang kes yang melibatkan bekas pekerja restoran yang buat ulasan tertentu terhadap bekas tempat dia bekerja. Dalam ulasan tu, dia ada kata yang restoran tu sangat tak bersih dan mereka kenakan caj yang sangat tinggi kepada pelanggan. Namun, restoran tu tampil menafikan segala tuduhan dan bertindak menyaman bekas bekerja mereka tu. Akhirnya, pihak restoran menang dan bekas pekerja tu kena bayar pampasan atas ulasannya tu. Tapi, kenapa perkara macam ni boleh berlaku? Sebenarnya, restoran tu saman dia atas dakwaan memfitnah, yang secara asasnya akan memusnahkan reputasi pihak lain. Bila dengar benda ni, ia seolah-olah mengatakan yang setiap perniagaan boleh je saman kita, kalau kita bagi gambaran buruk tentang mereka – macam bagi rating satu bintang. Tapi hakikatnya, ia taklah semudah yang disangka. Untuk tahu lebih lanjut tentang hal ni, kita kena tengok dulu undang-undang tentang fitnah. Dari segi undang-undang, ada dua jenis fitnah yang kita kena tahu iaitu sivil dan jenayah. Dalam artikel ni, kita akan tengok pada jenis sivil sebab lebih releven dengan topik yang kita perbincangkan. Ia pula kemudiannya dibahagikan pula kepada dua iaitu libel dan slander. Libel adalah adalah apa yang kata terhadap orang lain melalui teks macam blog atau surat khabar. Manakala, slander adalah apa yang kita kata secara lisan. Jadinya, untuk artikel ni – kita akan tengok pada libel sebab memang itulah yang kebiasaannya kita nampak di atas talian sekarang ni. Oleh itu, jika seseorang menyaman kita atas tuduhan memfitnah – pertama sekali mereka kena buktikan yang kita ada tulis atau kata sesuatu yang telah merosakkan reputasi mereka. Bagaimanapun, dakwaan mereka tu tak akan berjaya sekiranya: apa yang kita kata tu benar – jika kita membuktikan kenyataan kita tu, ia tak boleh dianggap sebagai fitnah ia adalah komen yang adil – jika kita tak ada kepentingan umum tentangnya dan ia hanya sekadar peringatan kepada orang lain kita tak ada niat untuk memfitnah mereka – kita tak bermaksud untuk memusnahkan imej mereka, tapi hanya sekadar memberikan pandangan jujur. Akan tetapi, jika kenyataan kita tu dibuktikan salah, kita boleh menariknya balik dengan buat permohonan maaf secara terbuka. Undang-undang membenarkan kita menarik balik apa yang kita cakap, sebelum disaman kerana memfitnah. Ia membantu jika disertakan dengan bukti Jadinya di sini, kita dah tahu tiga sebab kenapa seseorang tu tak boleh saman kita atas dakwaan memfitnah. Berbalik kepada senario di mana pemilik pernigaan mengugut kita dengan saman: kalau kita nak menguatkan dakwaan kita tu, kita kenalah bawa bukti kukuh untuk lawan balik. Maknanya, kalau kita kata yang tempat dia tu kotor atau caj terlalu mahal – kita kenalah ada bukti kukuh macam gambar atau resit dalam ulasan kita tu. Dengan cara ni, pemilik tu tak bolehlah kata yang kita cuba merosakkan imej perniagaannya. Ia juga membantu kalau bukan kita je yang bagi ulasan buruk tentang perniagaan tu. Ia akan membuatkan lebih sukar untuk mereka kata kita memfitnah, kalau dalam masa sama – orang lain pun pernah alami apa yang kita alami. Perkara-perkara ni dengan kata lain membuatkan dakwaan kita tu lebih berasas dan benar. Namun, perlu diingatkan yang ia taklah secara automatik akan membuatkan kita menang kes. Sebabnya, ia masih bergantung kepada kekuatan bukti yang kita ada. Selain memberikan bukti, kita juga kena pastikan yang dakwaan kita tu tak ditokok tambah dari yang sepatutnya. Maknanya, kalau restoran tu kotor dan kita nampak banyak pinggan tak berbasuh – kita tak bolehlah buat kesimpulan yang restoran tu banyak tikus. Menambahkan sesuatu maklumat yang tak benar hanya akan membuatkan kita disaman kerana memfitnah. Kita boleh pergi ke saluran lain untuk dapatkan bantuan Ulasan pada asasnya sangat baik untuk menolong pihak lain mengetahui dengan lebih lanjut tentang produk dan perkhidmatan sesuatu perniagaan. Tapi, kalau kita rasa tak puas hati dengan sesuatu perniagaan tu dan nak bersuara tentangnya, sebenarnya ada je badan yang kita boleh sampaikan aduan tu. Malah, ada di antaranya yang akan siasat dakwaan kita tu, untuk tengok sama ada betul atau tak seperti yang didakwa. Contohnya seperti Tribunal Pengguna yang akan mendenagr apa sahaja dakwaan berkaitan produk dan perkhidmatan sama ada tentang – kualiti rendah, tak selamat dan sebagainya. Kita boleh sampaikan aduan tu di portal atas talian mereka. Ataupun, kalau lah kita ada datang ke sebuah restoran yang tak bersih, kita boleh je buat aduan kepada Majlis Perbandaran atau ke Kementerian Kesihatan Malaysia, yang ada bahagian khas berkenaan keselamatan dan kualiti makanan. Tapi, kalau kita masih mahu buat ulasan atas talian, boleh je sebenarnya – asalkan ulasan tu jujur dan ada bukti bagi mengukuhkannya."
"4 Msian girls are suing their teacher for being absent from school. Here's their story [Update: 20/7/2023] The three students have just won their case and were awarded RM150,000 in damages. Siti Nafirah’s case is still ongoing and will continue in August 2023. [Update:23/12/2020] Initially there was just one person, Siti Nafirah, who was suing her teacher, principal, and the Ministry of Education in 2018. But we found out that three other students will be suing the same teacher, same principal, and the same Ministry. Like Siti Nafirah, these students were also affected by the teacher’s absenteeism. This new lawsuit is separate from Siti Nafirah’s, but they will be suing for the same things that she did. Previously, we wrote an article on a 6-year-old who sued the government of Malaysia. He is one of the youngest people to have sued someone in the country. However, this was done through his father as he was a minor. Now, a 20-year-old from Sabah is said to be the youngest person in Malaysia to sue someone on her own, without being represented by an adult. This student is suing her teacher because he had been absent for the most part of the year. She believes that this in turn, lead to her being unprepared for her Sijil Pelajaran Malaysia, causing her to fail her English paper. As you’re reading this, you may recall hearing this story quite some time ago. While it made the news a few years back, the case itself is actually only going to be heard in court next month. And it’s a long time coming because... The story began in 2015 Siti Nafirah, the student in question, was in Form 4 in 2015. During that time, her English teacher for that year was said to have been absent from class...for 7 months in a row. As mentioned earlier, she failed her English paper and she believes that this had to do with the teacher not showing up to class and coaching them sufficiently. But she didn’t immediately sue him when this happened. She was said to have first made a complaint to the school regarding the teacher. However, it seems that no action was taken against him. At this point, it’s worth mentioning that Siti Nafirah is suing not just the teacher, but the school’s principal and Minister of Education of Malaysia as well. If you’re wondering why, it turned out that when the Ministry of Education came to investigate the case, the principal allegedly falsified the attendance records of the teacher. So instead of showing that he was absent for seven months, the record said that he was only absent for two. The principal was also said to have made other students speak positively of the teacher, and this made Siti Nafirah’s story hard to believe. It is only when she realised that the issue was not going to be solved at an internal level, did she decide to take legal action. She is suing them for misfeasance of public office (misusing their powers as public servants) breach of statutory duties under the Education Act 1996 (they had failed to carry out their duty as educators/the Ministry of Education) denying her right under the Constitution to have access to an education The parties that she is suing are the teacher, the school principal, the Kota Belud Education Department officer, the Sabah Education Department Director, the Director-General of Education, The Minister of Education of Malaysia and the Federal Government of Malaysia. By the time all this happened, a few years had lapsed and it was the year 2018. She wasn’t allowed to sue at first If you’re wondering why the case has been going on for this long, it’s because all this while, the case did not get the green light to be heard. So if you aren’t aware of how civil proceedings work, here’s a quick guide: You can file a case in court through your lawyer You submit your claim to the other party and wait for them to respond to it The court will then see if it’s something pertaining to an actual legal issue that needs the court’s involvement If there is, the court will allow you to pursue the case. If there isn’t, your claim will be dismissed So in other words, not every case that is filed in court will automatically be heard by the judges. There has to be enough substance in a claim for the court to be able to decide on it. In Siti Nafirah’s case, the parties she was suing petitioned to have her case dismissed. However, in July 2019, the High Court allowed for the claim to go through. The only thing was that they didn’t allow her to sue one of the parties, which is the school itself, as the judge said that they are not considered to be a legal body. However, the teacher and principal will still be sued as individuals. It took a few months for both parties to submit their claims from both sides. And finally, the court set 4th to 8th May 2020 as the hearing dates. But as we all know, Covid-19 was already around then, and the hearing had to be postponed. The case will finally be heard in court in November 2020 Finally, after a very long wait, this case will be heard in the Kota Kinabalu High Court on 2nd-6th November 2020. As the case is being heard at the High Court, whatever decision is made can still be appealed to the Court of Appeal, and then again to the Federal Court if either party is dissatisfied with it. And as this case has taken over two years to get to this stage, it could take another few years before we see a final decision."
"Sexual harassment is NOT a crime in Malaysia...but this can change soon Recently, a local Telegram group was brought to attention as over 40,000 members in the group were allegedly spreading pictures of women without their consent as well as sharing child porn. The group’s existence came to light when a number of women had come forward after discovering their images being shared without prior knowledge and permission on the platform. Investigations on the group members are still being conducted, and the Malaysian Communications and Multimedia Commission (MCMC) stated that the matter has been raised to Telegram and a complaint has been lodged to Interpol. [READ MORE: What can you do if you have been sexually harassed in Malaysia?] Now, this is just one of the many cases involving sexual harassment that has made the headlines in Malaysia. If you’re wondering, there are actually no specific laws in Malaysia that are made to combat sexual harassment. Instead, we have laws for sexual assault, which is a criminal act. In other words, you can still take action against offenders for sexual crimes, just not sexual harassment in specific. But why? Because sexual harassment is only recognized if you’re at work We previously wrote about what people can do if they’re sexually harassed in Malaysia—which you can read about here. Sexual harassment is pretty much recognised in the context of employment...ALONE. Section 2 of the Employment Act 1955 states this as: ""―sexual harassment means any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment;"" It is also compulsory for employers to investigate any complains of sexual harassment which is highlighted under Section 81F of the Act : “81F. Any employer who fails— (a) to inquire into complaints of sexual harassment under subsection 81B(1); (b) to inform the complainant of the refusal and the reasons for the refusal as required under subsection 81B(2)...; (d) to submit a report of inquiry into sexual harassment to the Director General under subsection 81D(2); commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.” So if your co-worker sexually harasses you, you can actually take action against him/her based on the laws in the Employment Act. But if it isn’t in the context of work, the victim has to look for other avenues for it. [READ MORE: How can victims report sexual crimes in Malaysia?] Things did change for the better in 2016, when the Federal Court ruled in the case of Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor, where the tort of sexual harassment was introduced into the Malaysian legal system. However, however the definition of sexual harassment was limited, and we're hoping to see it extended through other cases that may come to light [READ MORE: What is Tort Law?] To address this issue, calls have been made by the All Women’s Action Society (AWAM) and several other NGOs, to table the Sexual Harassment Bill in the Parliament by the end of this year. . Let’s take a look at what we can expect if this Act comes to live. The Sexual Harassment Act will reform punishment for offenders The proposals are made with hopes to change how sexual crimes are seen in Malaysia. The Act is meant to protect victims of sexual harassment and get both private and public sectors to prevent sexual harassment cases in Malaysia. This would mean that sexual harassment cases will not only be recognised in the employment context, but can be used by any victim who has had unwanted conduct of sexual nature in any kind of environment. Now, the proposal also includes getting government and private institutions to be responsible when dealing with cases involving sexual harassment. The Act will make these bodies liable for any sexual harassment case committed by its employees or even third parties—if they fail to take reasonable steps to investigate the case. Cases of sexual harassment are also urged to be heard by a Tribunal. A Tribunal is basically formed by a group of people who hear a certain problem together and resolve it. The proposals for the Sexual Harassment Act include having a Tribunal made up of legal practitioners to hear cases on sexual harassment. Potentially, this means that cases wouldn’t be heard in a court but resolved in a tribunal instead, based on available case laws. Suggested punishments include getting the offender to issue a statement of apology to the victim (including a published apology if it happened in public), compensate the victim and even undergo counselling or do community service. As we mentioned earlier, Malaysian law does not specifically define sexual harassment—but other sexual crimes can be found in the Employment Act, Penal Code and the Sexual Offences Against Children Act. Which is why there’s a dire need for sexual harassment to be recognised under the law. The Bill was expected to be tabled by the end of this year, and NGOs such as AWAM are now pushing for the Bill to be passed in November 2020. However, a collective voice is needed in order to present it to the Parliament. If you want your voice to be heard to make Malaysia safer for everyone, just fill this petition to push for the tabling of the Sexual Harassment Bill by November this year."
"Kisah kanak-kanak Malaysia yang dinafikan kerakyatan kerana dilahirkan di rumah [Click here for English version] Walaupun ramai di kalangan kita yang dilahirkan di hospital, tak dapat dinafikan juga masih ada yang dilahirkan di rumah. Tak kisahlah lahir di mana, mesti kita rasa yang selagi kita dilahirkan di Malaysia dengan ibu atau bapa kita adalah rakyat Malaysia, maka secara automatik kita akan dapat kerakyatan dalam negara ni. Tapi, apa yang jadi dalam satu kes ni tak seperti mana yang kita sangka. Sebabnya, seorang kanak-kanak bernama Karthiyani – yang beribubapakan rakyat Malaysia dah dinafikan kewarganegaraannya. Mungkin ada di antara kita yang merasakan kes ni agak ganjil, tapi sebenarnya banyak juga kanak-kanak di Malaysia yang berdepan nasib sama walaupun dilahirkan di negara ini. Sebagai contoh, kami pernah tulis tentang kisah seorang kanak-kanak 6 tahun yang saman kerajaan kerana dinafikan kerakyatannya – walaupun bapa kandung dan ibu bapa angkatnya adalah rakyat Malaysia. Namun, kes ni agak berbeza dengan kes yang menimpa Karthiyani. Sebabnya, kes yang menimpa Karthiyani seolah-seolah mengatakan: kanak-kanak yang lahir di Malaysia, tak bermakna mereka secara automatik akan diberikan kerakyatan. JPN perlukan bukti yang dia dilahirkan di sini Karthiyani berasal dari sebuah keluarga besar, memandang dia juga adalah anak ke-8 dari 11 orang adik beradik. Tak seperti adik beradiknya yang lahir di hospital, Karthiyani dilahirkan di rumah saja. Berdasarkan maklumat dari Latheefa Koya – peguam yang kemudiannya ambil kes ni – ibu Karthiyani tak sempat ke hospital dan sebab itulah dia dilahirkan di rumah. Dia dilahirkan pada 2010 dan pada hari sama juga dia dan ibunya dibawa ke Hospital Kuala Lumpur (HKL). Mereka dimasukkan ke wad selama 3 hari, bagi memastikan kedua-duanya berada dalam keadaan baik. Bila mereka keluar dari hospital, HKL ada bagi surat yang mengesahkan bayi tu benar-benar dilahirkan di rumah dan kemudiannya dibawa ke hospital. Ibu bapa Karthiyani pun ada buat laporan polis bagi mengesahkan kelahirannya di rumah. Berbekalkan surat dari HKL dan laporan polis, mereka pun pergi ke cawangan Jabatan Pendaftaran Negara (JPN) untuk daftar kelahiran Karthiyani. Seperti mana dimaklumkan tadi, JPN kemudiannya menolak permohonan mereka. Antara puncanya adalah JPN tak dapat mengesahkan sama ada betul atau tak Karthiyani dilahirkan di rumah. Malah, dinyatakan juga yang mereka tak pasti dari mana Karthiyani datang, sebab dia tak dilahirkan di hospital. Hanya selepas 10 tahun, dia akhirnya dapat kerakyatan Disebabkan Karthiyani tak dapat kerakyatan, dia juga tak ada sijil kelahiran seperti kanak-kanak lain. Kalau tak ada sijil kelahiran atau MyKad, perkara ni memang akan menghalang seseorang tu dari buat banyak benda, sebab mereka akan dianggap sebagai ‘tanpa dokumen’. Kerana itulah, Karthiyani kemudiannya tak boleh masuk sekolah bila mencapai umur 7 tahun – pada 2017. Pada 2018, keluarganya dah buat permohonan baru kepada JPN. Kali ni, JPN tak tolak, sebaliknya minta mereka bagi lebih banyak bukti tentang kelahiran Karthiyani seperti dokumen tambahan dan saksi. Pada 2019, JPN perlukan bukti yang lebih spesifik – surat yang HKL bagi kepada mereka dan juga lima orang saksi. Lima orang saksi ni adalah ibu Karthiyani, jiran-jiran mereka dan En Shanmugam (presiden NGO – Malaysian Tamilan Today). NGO ni juga aktif memperjuangkan kes Karthiyani. Tapi malangnya, bapa Karthiyani meninggal dunia ketika itu. Sementara saksi-saksi tu ditemubual oleh JPN pada Disember 2019, Karthiyani juga ditemubual oleh mereka sebulan sebelum itu. Perkembangan tu turut menampakkan kesan positif. Selepas sesi temu bual tamat pada akhir tahun 2019, JPN akhirnya terima bukti-bukti yang diberikan. Pada 5 Ogos 2020, JPN mengeluarkan sijil kelahiran dan MyKid kepada Karthiyani. Jadinya, bolehlah Karthiyani masuk sekolah dengan adik beradiknya dan seperti kanak-kanak yang lain. Namun, kisah ni juga menimbulkan persoalan kepada kita… Macam mana seseorang tu nak dapatkan kerakyatan Malaysia? Sebenarnya, ada dua cara untuk dapatkan kerakyatan, iaitu: pendaftaran naturalisasi Kerakyatan secara pendaftaran bermakna seseorang kanak-kanak tu memenuhi syarat-syarat di bawah undang-undang untuk jadi warganegara, dan apa yang perlu dibuat adalah ibu bapanya mendaftarkan anak mereka di JPN. Satu lagi cara adalah melalui naturalisasi – selalunya diberikan kepada seseorang yang telah menetap di Malaysia untuk beberapa tempoh tahun tertentu dan memenuhi kriteria yang ditetapkan oleh kerajaan. Bila mereka dapat kerakyatan Malaysia, apa saja kerakyatan yang dia ada selain Malaysia, akan dibatalkan kerana Malaysia tak menerima dwi-kerakyatan. [BACA LAGI: 4 cara yang boleh melucutkan kerakyatan seseorang secara kekal] Tapi untuk artikel ni, kami tak akan bincang secara terperinci berkenaan syarat untuk dapat kerakyatan. Sebabnya, perkara tu agak kompleks dan memerlukan penerangan yang panjang. Kalau korang berminat juga untuk tahu, korang boleh lah semak Artikel 14 – 31, Perlembagaan Persekutuan. Makanya, dalam kes Karthiyani ni – dia secara asasnya layak dan boleh je dapat kerakyatan secara pendaftaran. Tapi masalah timbul disebabkan dia dilahirkan di rumah dan bukannya hospital. Dalam masa sama, ini bukan bermakna kanak-kanak yang dilahirkan di rumah susah mendapat kerakyatan. Cumanya dalam kes Karthiyani, pihak berkuasa nampaknya memerlukan lebih banyak bukti mengenai tempat dia dilahirkan."
"3 authorities you can report scams to...besides PDRM Many of us would have been, or would have almost become victims of scams at some point of our lives. We also know that scammers have only gotten smarter with time by coming up with new ways to target innocent people. The Macau scam is one of the most famous types of scams, where the victims themselves are tricked into authorising a bank transaction and end up losing large amounts of money. The recent ‘saman/mahkamah’ scam and Poslaju scam are two examples of this. Earlier this week, two people believed to be the masterminds of the Macau scams in Malaysia were arrested. Our friends at Soscili wrote an article on this and how most of these scams work. If you’ve ever been scammed before, your first thought would be to report the incident to the police. But while PDRM would always naturally be the ones to investigate a crime such as a scam, there are also other authorities that can help you if you’ve become a victim of one. So in this article, we’ll look at who some of these bodies are, and how you can actually avoid scams in the first place. 1. Bank Negara Malaysia for financial scams Bank Negara, as you would know, is Malaysia’s central bank. For this reason, any money-related matters are governed by them and this includes investigating financial scams as well. Apart from filing a report with PDRM, BNM should be the next authority you contact if you’ve been scammed. They might be able to trace where your money has gone, and if they’re successful, they may be able to get your money back. To file a complaint with BNM, you can call their BNMTELELINK, which is 1-300-88-5465 (1-300-88-LINK). On their website, BNM has clarified that this hotline is not just for people who have been scammed, but even those who are aware of a scam. So if you come across any banking scams, give BNM a call. It’s also worth noting at this point that many financial scams also tend to use BNM’s name to mislead people, since they are a figurehead in the financial sector of the country. For example, you might receive an e-mail saying that BNM has frozen all your bank accounts. These types of scams can also be reported to BNM. 2. MCMC for cyber scams While scams mostly involve stealing people’s money, they can also come in others forms. Sometimes, they might even trick you into giving out your personal information. Scammers can call you, leave you texts, or even send you suspicious links that steal your data. For scams like these, the Malaysian Communications and Multimedia Commission (MCMC) would be the one to investigate them. MCMC does a lot of things, from regulating content that goes up on the internet to putting out rules for media companies to follow. Dealing with scams would also come under their purview. MCMC has several channels for you to send in a complaint to them: Just like BNM, you don’t need to be a victim of a scam to be able to make a report. So long as you come across one and have gotten proof of it (like a screenshot), you’re good to go. 3. KPDNHEP for consumer-related scams Let’s say you’re looking for an item on an online platform. You finally find one seller who has it. The listing looks legit, with many photos and a good description of the item. You make the payment and wait for a few days...but there are absolutely no updates on your purchase. You go back and check, only to realise that the entire listing has been removed! Obviously, you’d want to report this to the platform on which you found the seller. But the good news is, the Ministry of Domestic Trade and Consumer Affairs, also known as KPDNHEP, can also help investigate the case. KPDNHEP doesn’t only look into scam cases, but they can even take on cases involving poor quality of products and services, unfairly priced products, and so on. They can be reached through the following avenues: Alternatively, you can use their EzAdu application to make a complaint straight from your phone. How you can identify (and avoid) a scam The following pointers might sound like common sense, but some scammers (as we know) can be really clever. So it’s important to look out for some not-so-obvious signs that may help identify a scam: most institutions that you’ve signed up to or are a part of would already have your personal particulars. If they’re asking you to tell them your IC number, name, and address again, there’s a possibility that it could be a scam. [READ MORE: What can someone do with your name, MyKad number, address and phone number?] use applications such as Truecaller that can show you exactly who is calling, and if other people have marked them as scammers. beware of fishy online links that tell you they ‘found a video of you’, and that you should click the link to see it. Clicking on these links can result in you getting hacked you might receive e-mails or SMSes from banks or other financial institutions claiming your money has to be deducted. Instead of responding to it, call your bank, or go there in person to confirm this. We’ve written an article on online scams in particular and in it, one of our writers details her own experience of almost getting scammed. You can give this a read here. So all in all, while it’s impossible to totally wipe out scammers, make sure to always be vigilant and know who to report to if you end up being victim to one, or you come across one."
"Malaysia is changing its laws to stop new company monopolies Imagine this: You’ve subscribed to a local TV provider for almost 8 years now. Every year, you realize that the subscription price keeps increasing. You try and look for other options, but there’s nothing else that’s close to what they offer. So you have no choice but to keep paying for it, because it’s the only choice you have. Now this scenario is known as a market monopoly. A market monopoly is sort of similar to the monopoly game we play—you basically try to rule everyone, by buying over/owning as many things as you can—which is essentially what companies do when they dominate an entire industry...alone. But here’s a fact to take note: Monopolies aren’t actually illegal in Malaysia. In fact, we have quite a number in the country—Telekom Malaysia’s high speed broadbands and Astro are notable examples. But this doesn’t mean that monopolies are encouraged in a country either. So, for the monopolies that currently do exist, they are allowed to operate, as long as they don’t abuse their position by dominating in a particular industry. So how exactly will the new amendments stop ‘industry monopoly’? The amended laws will affect companies that merge together If it isn’t bad enough that some companies in some industries dominate a particular market alone, imagine 2 companies from the same industry becoming 1 to control everything. Competition laws pretty much exist to protect consumers from having to buy items at higher prices and having lesser options to choose from. Competition laws exists all over the world, and Malaysia’s version of the law is stated in the Competition Act 2010. The Act was passed to do 2 main things: Encourage healthy competition between companies in the same industry. Prevent companies from collaborating illegally. The Malaysian Competition Commission (MyCC) acts as the regulatory body to protect consumers from being abused by a monopoly. MyCC gets its powers under Section 40 of the Competition Act: “...the Commission may impose a financial penalty...or...may give any other direction as it deems appropriate.” The Act basically gives MyCC the authority to decide on how much to fine anti-competitive practices. They also have the power to instruct a monopoly to stop business, take steps to stop the monopoly from operating and give any other direction which is appropriate. So as you can see, they have a large scope to make decisions under Competition laws. However, there’s still a small crack in the law which allows for companies to break competition laws...if they merge together as one. MyCC can soon control companies that merge together Recently, the CEO of the Malaysia Competition Commission (MyCC) announced that they’re proposing to amend 2 Acts—which will allow them to regulate mergers in Malaysia. As we mentioned earlier, if 2 companies plan to merge together to become one—they may become a monopoly in the market. In fact, we previously wrote an article about the merger between Digi and Celcom...which almost happened: [READ MORE: Digi and Celcom are planning to merge. How will this affect their customers?] Up until today, MyCC does not have the power to regulate or control mergers in Malaysia, as there is no provision for this in the Act. Without merger controls, there’s a chance for companies to join forces and become an industry monopoly. So the proposed amendments that shall be made to the law give MyCC more power to control and regulate companies wishing to merge together. Any 2 or more companies that plan to merge will also need to obtain permission from MyCC. MyCC will also have the power to approve the merger, grant certain conditions upon the merger or even reject mergers that don’t meet their requirements. If 2 companies have already merged before this new amendments come up—MyCC can still investigate on the companies that did so, and take action against them based on the current laws we have. As for now, MyCC is working on the Bill to propose the amendments made to the Act. The Bill is expected to be presented mid-next year. In the meantime, read our article below to know more about how MyCC works: [READ MORE: Grab was fined RM87 million for 'industry monopoly'. Here's what they (allegedly) did]"
"In Malaysia, can a business sue you for giving them a bad review? Picture this: You’re out having dinner with your friends in this posh new place that just opened. The food arrives and it looks great...until you taste it. You’re surprised at how bad it is, given that this is an expensive place. You call the waiter to let him know that there’s something wrong with the food. But he just ignores you and walks away. You’re now stuck with food that’s inedible, and no one’s willing to do anything about it. At this point you decide it’s best for you to just leave. You signal for the bill and miraculously, someone shows up with it. But your jaw drops when you see how much you’ve been charged. You know it’s pointless trying to reason with them, so you just pay and leave. But as soon as you get home, you leave this restaurant an honest review, detailing your terrible experience. The next morning, the owner who somehow managed to find you on Facebook, tells you that he will be suing you for that review. But...can he? Bad reviews are fine...if they don’t defame anyone Business owners clearly wouldn’t want to get bad reviews as it would ruin their business’ reputation. But you, as a consumer, still have the right to give an honest opinion of that business. That being said, there are people who have been sued for writing negative reviews. One such case was of a restaurant’s ex-employee who posted a review of that particular restaurant. In the post, she had mentioned that the restaurant was highly unsanitary, and that they were charging ridiculously high prices. The restaurant said that none of this was true. They ended up suing this ex-employee and winning, and she now had to pay the restaurant compensation. But, how did this happen? Well, the restaurant sued for her defamation, which is basically ruining another person’s reputation. This might now sound like every business can sue you for painting a bad picture of them, if you were to leave them a one-star rating. But it isn’t as simple as that. To explain this further, we’ll need to look at the law of defamation. There are two types of defamation—civil and criminal. In this article, we’ll be looking at civil defamation as this is more relevant to the topic. Defamation is then further divided into two, libel and slander. Libel is saying things about another person through text, such as a blog or newspaper. On the other hand, slander is done verbally. For this article, we’ll only look at libel, as reviews are usually posted online for people to read. Now, if someone were to sue you for defamation, they would just need to prove that you written or said something about them that had ruined their reputation. However, their claim will not be successful if: what you said was true—if you have proof of your statement, this cannot be said to be defamation it was a fair comment—if you had something out of public interest just as a warning to others you had no intention to defame them—you didn’t mean to tarnish their image, but were merely giving an honest opinion. However, if your statement is proven to be false, you can retract it by issuing a public apology. The law allows you to take back what you said before you get sued for defamation. It helps to include proof We’ve just learned that there are three reasons someone cannot sue you for defamation. Coming back to the scenario of the business owner threatening to sue you: if you want to strengthen your claim, you would need proof to back it up. So if you say that the place was dirty, or you were overcharged, you should include pictures or receipts in your review. This way, the business would not be able to say that you were just out to ruin their image. It also helps if you’re not the the only person leaving a bad review for the business. It would of course be harder for businesses to accuse you of defaming them if other customers have also said negative things about them. This would just make your side of the story more credible. But again, this doesn’t automatically mean that you could win a case against them. Your own claim should have enough evidence to substantiate it. Besides giving proof, you also need to ensure that you don’t exaggerate your claim—you must tell it as it is. So if the restaurant was dirty and you saw a lot of unwashed plates, you cannot jump to conclusions and say that the place is infested with rats. Adding untrue information can also get you sued for defamation. You can reach out to other channels for help Reviews are good in that they help others know more about the service provided by a business. But if you’re unhappy about a particular establishment and would like to voice it out, there are also other bodies you can complain to. Some of them will investigate the claim themselves to see if it’s true. There’s the Consumer Tribunal, and they hear any claims on products and services that are of poor quality, unsafe, and so on. You can file complaints on their online portal. Or if, for example, you had come across a restaurant that was unsanitary, you could report them to your local Majlis Perbandaran or to Kementerian Kesihatan Malaysia, who has a special division for food safety and quality. But if you still decide to write that review online, just make sure you’re honest, and that you have enough proof to show."
"Boleh ke LHDN minta ahli keluarga bayar cukai untuk orang dah meninggal dunia?  [Click here for English version] Setiap manusia yang ada di atas bumi ni, semestinya tak akan terlepas dari kematian. Tapi, kematian bukanlah pengakhiran segalanya, sebab banyak perkara yang kita akan tinggalkan kepada waris dan ahli keluarga. Ada yang tinggalkan duit, rumah, kereta dan juga… cukai? Cuba korang bayangkan senario ni: Korang dah berkahwin selama 5 tahun… tapi secara tiba-tiba suami/isteri korang meninggal dunia kerana serangan jantung. Dalam keadaan kesedihan dan kesunyian tu, secara tiba-tiba juga korang dapat surat daripada Lembaga Hasil Dalam Negeri (LHDN) yang kata korang sekarang bertanggungjawab untuk membayar cukai bagi pihak suami/isteri yang dah meninggal dunia. Selain rasa terkejut dan keliru, korang juga tertanya-tanya kenapa pula korang kena bayar cukai bagi pihak yang dah meninggal dunia. Sebelum kita buat sebarang kesimpulan, kita semua kena tahu dulu apa yang LHDN buat ni sebenarnya sah, sebab memang ada peruntukan undang-undang yang membenarkannya. LHDN boleh kutip cukai, walaupun setelah seseorang tu meninggal dunia Sebenarnya, cukai yang perlu dibayar secara asasnya adalah cukai individu dan bukannya cukai perniagaan. Cukai ini juga tak sama dengan cukai pewarisan (cukai atas harta/wang pusaka) yang tak wujud di Malaysia. Jika seseorang tu meninggal dunia – perkara pertama yang kita kena tengok adalah sama ada dia mempunyai wasiat bertulis. Wasiat inilah yang selalunya akan ada maklumat tentang macam mana aset si mati akan diserahkan kepada siapa, selepas dia meninggal dunia. Kalau ada wasiat – pelaksana (pihak yang melaksanakan apa yang terkandung dalam wasiat) bertanggungjawab untuk membayar apa saja cukai yang ditinggalkan oleh si mati, dengan menggunakan harta si mati. Namun, kalau si mati meninggal dunia tanpa ada wasiat – waris terdekat (selalunya isteri/suami atau anak-anak) akan bertanggungjawab membayar baki cukai yang belum dibayar kepada LHDN oleh si mati. Maka secara mudahnya, selepas sahaja ahli keluarga kita meninggal dunia, kita secara automatik akan bertanggungjawab terhadap komitmen kewangan si mati. Kita juga kena maklumkan kematian tu kepada pihak LHDN, seperti mana yang dinyatakan dalam Seksyen 74 Akta Cukai Pendapatan 1967: “Sekiranya seseorang meninggal dunia pada tahun asas untuk satu tahun taksiran, pelaksananya hendaklah ditaksir dan dikenakan cukai untuk tahun taksiran tersebut, untuk tahun taksiran berikutnya dan, bila perlu, untuk tahun taksiran sebelumnya mengenai pendapatan bercukai bagi individu tersebut... jika ia boleh dinilai dan dikenakan cukai… kerana individu tersebut akan dinilai dan dikenakan cukai sekiranya dia tidak meninggal dunia.” Akta ini pada asasnya nak beritahu yang pelaksana atau waris terdekat akan bertanggungjawab dan boleh dikenakan tanggungjawab bagi pihak si mati, seperti mana dia masih hidup. LHDN akan menjalankan taksiran cukai individu terhadap si mati dan hartanya dalam tempoh 3 tahun dari hari kematiannya dimaklumkan kepada LHDN. Jadi, andainya si mati mempunyai 3 sumber pendapatan – dari pendapatan kerjanya, rumah yang disewakan dan faedah dari pinjaman peribadi yang dia bagi –LHDN akan lihat semua ni sebagai pendapatan yang akan ditaksirkan. Pelaksana/waris terdekat akan bertanggungjawab menfailkan cukai untuk si mati – sampailah yang tertunggak tu habis dibayar. Tapi, ada jalan keluar tertentu tentang macam mana korang boleh membayar cukai bagi pihak si mati… LHDN benarkan bayaran secara ansuran Kalau korang baca artikel ni, nampak sangatlah yang korang masih hidup dan mungkin seorang pembayar cukai pendapatan. Sebenarnya, borang yang digunakan untuk memfailkan pembayaran cukai bagi pihak si mati dipanggil sebagai Borang TP, yang rupanya agak sama dengan borang BE/B yang kita selalu nampak tu. Bayaran tu nanti boleh dibuat di mana-mana pejabat LHDN, perbankan atas talian atau di pejabat pos. [BACA LAGI: 5 kesalahan cukai yang biasa berlaku di Malaysia, dan bagaimana mengelakkannya] Oleh itu, walaupun korang bertanggungjawab ke atas cukai tertunggak orang lain, korang masih boleh membayarnya secara ansuran, seperti mana yang dinyatakan oleh LHDN. Tapi, kalau korang gagal melakukannya, LHDN boleh memfailkan saman sivil untuk dapatkan jumlah yang tertunggak tu. Seksyen 106 Akta menyatakan: ""Cukai yang perlu dibayar dan kena dibayar dapat dipulihkan oleh Kerajaan melalui prosiding sivil sebagai hutang yang harus dibayar kepada Kerajaan."" Dengan kata lain, cukai orang yang telah meninggal dunia masih lagi dikira dan akan ada tindakan undang-undang untuk mengambilnya. Hal ni termasuklah pembekuan aset si mati sehingga tunggakan cukai dibayar. Ada juga penalti yang akan dikenakan kalau lewat menghantar Borang TP, iaitu pembayaran yang tertunggak akan dinaikkan sebanyak 10%. Kesimpulannya, apa yang kita boleh faham adalah – kematian tak dapat membebaskan kita sebagai pembayar cukai. Dengar macam menyeramkan, tapi itulah hakikat yang kita kena tahu. Jadi, untuk elakkan sebarang masalah yang lebih besar, LHDN ada menggesa pelaksana/waris terdekat si mati, untuk periksa jika ada sebarang cukai yang perlu dibayar. Moga dengan maklumat ni, urusan kita semua dapat berjalan dengan lebih lancar dan mudah."
"Can your boss ignore your resignation letter in Malaysia? If you’re currently considering to leave your company or you’ve already been offered a position at a different company, your first step will be to tender your resignation. The process is pretty simple: All you have to do is to formally inform your boss and serve your notice period. If you don’t know what exactly a notice period is, just take a look at your employment contract. There will be a part in it that talks about how long you’ll have to stay in the company, after you’ve tendered your resignation. This basically gives both parties a heads up if either of them ends the contract. Now imagine this: You tendered your resignation via email to your boss. Buttttt he tells you that he’s not going to accept your resignation because he doesn’t want you to leave. To make things even harder for you, he deletes the email you sent with your resignation letter in it—claiming that he never saw it. The question now is: Does your boss have to accept your resignation letter if you want to leave the company? Your boss cannot stop you from leaving the company So here’s the thing, your boss can’t actually stop you from resigning...because the law says so. Section 12 of the Employment Act 1955 states: “Either party to a contract of service may at any time give to the other party notice of his intention to terminate such contract of service.” In the event you’ve decided to resign, your boss cannot stop you from doing so because the law tells us that you (or your boss) can terminate your employment service at any time. But if he doesn’t respond to it, is your resignation considered valid? In Chong Kok Kean v Citibank Berhad the employers had not formally responded to the employee’s resignation letter. However, the court said that it didn’t matter if the employers didn’t respond to the resignation. This is simply because, once the letter is sent in the resignation is said to be valid and effective. [READ MORE: Does Malaysian law allow your ex-company to sue you AFTER you resign?] In fact, your employment contract will state what you need to do in order to resign. In most cases, it will say you need to serve X months’ notice or pay the company a certain sum to the company. It’ll look something like this: “… termination by either party will require one (1) month written notice or payment of one (1) month salary in lieu of notice...” So as long as you have sent your resignation in writing, that alone is enough to terminate the contract. Your boss doesn’t need to agree or even respond to your resignation. Once he is aware that you want to resign, that itself will amount to acceptance. But before you tender your resignation...you might want to do this: READ YOUR CONTRACT! At the end of the day, it’s important to know what your employment contract says about your rights as an employee. There are some employers that misuse their powers and put employees in tough situations. If your employer is making things hard for you or you feel that you have no choice but to file a case against your employer (because he’s not letting you resign)—you can do so at the Industrial Court. Section 30(5) of the Industrial Relations Act 1967 states that they will help employees when: “The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.” Basically, the court will take into account the welfare of employees who have been treated unfairly. But take note: You have 60 days to file the complaint. You can check out how to do so, with this guide. However there are some companies that have their own policies and regulations on resignations and notice periods. For instance, some companies may require employees to serve a notice period of up to 3 months. Or in other cases, the employment contract will state that the employee cannot resign for a certain period of time, during the course of employment. So before you take matters to the court, it would be best to check on these things first with your employer. [READ MORE: In Malaysia, can your boss fire you AFTER you give your resignation letter?]"
"2 ways Malaysians can get more financial help after the moratorium ends In the last few months, many Malaysians have been financially affected due to Covid-19. The government came up with some financial aid at the start of the MCO to ease some of that burden. Besides one-off cash handouts, wage subsidies and other forms of financial help, the government also announced a moratorium for bank loans. This allowed people to defer or delay their loan payments for 6 months. While that has helped many, unfortunately, the moratorium will end on 30th September 2020. This means that from next month, we will have to start paying back our loans as usual, and if we don’t, the bank can take action against us (repossession of property, foreclosure, etc.). But of course, there may be some who are still financially recovering and may be unable to start paying their loans again. So here’s how you can continue to get some financial help with your loans, even after the moratorium ends. Talk to your bank If you need more time to repay your loan, the first thing to do would be to talk to the bank you took the loan from. While banks will be expecting people to start paying them back next month, they also have the discretion to extend more help to you if needed. An article by Malay Mail reported that banks themselves have been offering to provide more assistance: “As for borrowers who face difficulties paying their monthly loan commitments once the loan moratorium expires on September 30 due to the economic effects of the Covid-19 pandemic, they are advised to visit the banks to work out flexible loan repayment arrangements.” - Malay Mail, 24th September 2020 In fact, some banks have also put up announcements stating that they will be providing help to those who still can’t pay. But of course, whether or not you get help depends on a lot of other factors. Those who’ve lost their jobs recently or are ill and unable to work may have a higher chance of getting that help. So it’s on a case-by-case basis, but it’s still worth the shot. ...or you can talk to AKPK If your bank is unable to offer you help, another place you may be able to get assistance from is a financial counselling body known as Agensi Kaunseling & Pengurusan Kredit (AKPK). If you haven’t heard of them before, they’re an agency that helps people manage their debts and this is done by: restructuring the loan plans so you have may more time to pay them off helping you and your bank come up with a customized loan plan just for you provide counselling sessions on how to manage debts and expenses AKPK has been helping people with their loans even before Covid-19, but they’ve also mentioned that they will be able to help at this time with the moratorium. Take note that this doesn’t mean that they would be giving you money to pay off the loans, rather they would help you with a plan on how to pay them off. You can make appointments on their website, or you can call them at 03-2616 7766. Again, remember that you’ll need to contact them before 30th September. [READ MORE: Bank Negara's AKPK helps Malaysians manage their debts for free. Here's how it works] Asking for help won’t affect your credit history If you don’t already know, there’s something called CCRIS, which stands for Central Credit Reference Information. CCRIS looks at your creditworthiness—which is basically how much debts you have, and if you’re able to repay them. Now people with a lot of debts will have a bad CCRIS report, and this in turn will affect their ability to get future loans approved by banks. So if you’re planning to get more help with the moratorium, you may think that this could affect your CCRIS. Fortunately, banks have clarified that because times are still tough for many, asking for an extension on your loans will not affect your creditworthiness: “This is clearly a policy decision — that nobody’s credit rating for their facilities or for their future loan requirements will be impacted if they come to the banks for this targeted repayment assistance. So this is clearly a message we want to give to our customers, whether they are retail customers or SMEs.” - Rakesh Kaul- RHB Bank’s Group Head Retail Banking, as reported by Malay Mail So if you really need assistance, make sure you reach out to the relevant channels before 30th September 2020. Because as mentioned earlier, if your bank isn’t aware that you’re in need of help and you fail to pay up, they have the right to take legal action against you."
"Kerana mengeluh syarikat pilih kasih di media sosial, lelaki ni telah dipecat [Click here for English version] Dalam lumrah bekerja ni, kita mesti pernah mengeluh dengan tempat kerja kita. Dan hal tu kadang-kadang akan diluahkan dalam WhatsApp, ataupun masa melepak dengan kawan-kawan di kedai mamak. Malah, ada juga yang luahkan perasaan tu di media sosial macam Facebook dan Instagram. Mungkin kita fikir apa yang kita buat tu tak akan mendatangkan sebarang masalah, sebab tu cuma cara kita nak melepaskan geram semata-mata. Tapi sebenarnya, kami dapat tahu yang komen pasif-agresif di media sosial ni bukan setakat boleh buatkan korang dalam masalah, malah ada yang sampai boleh buatkan korang dipecat. Macam kes yang jadi kepada seorang lelaki ni, apabila… Dia dakwa syarikat amalkan pilih kasih Dalam kes ni, seorang pekerja dah dipecat selepas dia mengadu di Facebook pasal rakan sekerjanya, yang dia dakwa dapat layanan istimewa dari syarikat. Perkara ni jadi dalam kes Kamal Rafidi Mohd Zakaria lwn Alam Flora Sdn Bhd [2019] 2 LNS 2219. Si pekerja, Kamal dah diberhentikan kerja sebab buat kenyataan fitnah terhadap rakan sekerja di Facebook. Bagaimanapun, komennya tu juga secara tak langsung dah mencemarkan nama baik syarikat bila mendakwa mereka pilih kasih dengan rakan sekerjanya dan sebab itulah dia berdepan dengan masalah. Sebenarnya, dia buat komen tu menggunakan profil Facebook dengan nama samaran “Ken Zak”. Dalam hantaran Facebook-nya tu, Kamal ada muat naik gambar Anugerah Khas Kepimpinan dari SWCorp untuk daerah Rompin dengan caption: “Buat hal msh dimuliakan...kerana di payung oleh exco…” Walaupun nama pada sijil tu dah dipadam, tak susah sangat orang nak kenal pasti siapa yang dia rujuk tu – sebabnya cuma sorang je yang dapat anugerah untuk daerah Rompin pada tahun tu. Syarikat tempat dia bekerja, Alam Flora kemudiannya mulakan siasatan terhadap hantaran Facebook tersebut lepas dapat aduan daripada penerima sijil tu tadi. Mereka dapati orang yang buat hantaran tu tak lain dan tak bukan adalah Kamal. Jadinya, mereka pun buat siasatan dalaman dan panel siatan kemudiannya mendakwa Kamal dengan tiga kesalahan salah laku. merosakkan reputasi syarikat mempamerkan tingkah laku tidak bermoral menyebarkan khabar angin dengan niat jahat. Ketiga-tiga salah laku ni dianggap serius kerana dah melanggar standard prosedur (SOP) syarikat yang ditetapkan. Kamal didapati bersalah dengan ketiga-tiga salah laku ni, dan kemudiannya dipecat. Namun, dia tak bersetuju dengan keputusan tu dan bawa majikannya ke mahkamah dengan mendakwa dia dah dipecat secara tak adil. Jadi, persoalannya sekarang – dia cuma buat hantaran di Facebook. Kenapa dia kena dipecat? Rupa-rupanya… Tak susah nak faham maksud yang tersirat Dalam hal ni, mahkamah perlu memutuskan sama ada hantaran Facebook-nya tu fitnah atau tak. Dalam pembelaannya, Kamal berhujah yang komennya tu dibuat dengan adil, dan ia bukanlah fitnah. Dia juga kata yang dia tak cakap apa-apa yang boleh merendahkan reputasi syarikat, dan tak ada kata-kata mudarat atau ancaman yang dia buat dalam hantaran tu. Bagaimanapun, untuk menentukan sama ada kenyataan tu fitnah atau tak, ia tak dibuat berdasarkan pemahaman ayat yang literal semata-mata. Sebaliknya, ia dibuat dengan melihat apa yang munasabah difikirkan oleh orang tentang kenyataan berkenaan. Perkara ni ada ditegaskan dalam kes Tun Datuk Patinggi Haji Abdul-Rahman Ya’kub v Bre Sdn Bhd [1996] 1 MLJ 393. Di mana hakim ada menyatakan: “... ia tidak terbatas pada erti literal ketat pada kata-kata, tetapi meluas ke rujukan atau implikasi yang mana orang boleh menganggapnya secara wajar.” Jadinya, kenyataan tu bukan secara literal dengan kata: “Dia tu orang jahat”. Tapi, ia cukup untuk menyiratkan maksud ""Dia tu orang jahat."" Disebabkan inilah hakim buat keputusan yang hantaran tu sebagai fitnah, sebab ia menunjukkan maksud bahawa: Penerima anugerah tu tak sepatutnya terima anugerah tersebut dan dia seorang yang tak bertangungjawab dan tak berdisiplin Pihak pengurusan syarikat (exco) pilih kasih dan melindungi penerima anugerah meskipun segala perbuatan salahnya Sijil yang diberikan oleh SWCorp tu kurang kredibiliti SWCorp memberikan anugerah sijil kepada seseorang yang dipersoalkan integritinya, disebabkan dia dilindungi exco Jadinya di sini, ia bukan apa yang korang kata secara literal – tapi tentang apa yang orang fikirkan terhadap maksud korang tu. Tapi, bukan ke kita ada kebebasan bersuara? Inilah sebenarnya salah satu point dalam kes ni - di mana kita ada hak kebebasan bersuara. Ia pada asasnya benar sama sekali yang setiap rakyat Malaysia ada hak kebebasan bersuara dan ia dinyatakan secara jelas dalam Artikel 10, Perlembagaan Persekutuan: (a) tiap-tiap warganegara berhak kepada kebebasan bercakap dan bersuara; Dalam hal ni, mahkamah bersetuju yang setiap rakyat Malaysia ada hak tersebut. Bagaimanapun, mereka ada kata yang kebebasan bersuara bukanlah hak mutlak. Dengan kata lain, kita tak boleh menyalahgunakan hak tu untuk memfitnah mana-mana orang atau kumpulan. Mahkamah kemudiannya memetik alasan mereka dari kes – Jeyaretnam Joshua Benjamin lwn Lee Kuan Yew & Anor [1992] 2 SLR 310: Kebebasan bersuara bukanlah lesen untuk memfitnah orang. Ia dikenakan sekatan undang-undang. Hak mutlak atau tanpa had untuk kebebasan bersuara akan mengakibatkan orang secara sembrono memfitnah orang lain tanpa hukuman, dan pelaksanaan hak tersebut akan membuat orang awam lebih banyak kemudaratan daripada kebaikan. Setiap orang memiliki hak untuk reputasi dan hak itu harus dilindungi oleh undang-undang. Makanya, memang benar kita ada hak kebebasan bersuara. Tetapi, ia tak bermakna yang kita boleh kata apa je yang kita nak kepada sesiapa pun. Kalau kita buat macam tu, ia membuka ruang untuk memfitnah orang lain. Di mana, ia dah pasti tak adil – sebab kita juga ada hak untuk memastikan reputasi kita tak dicalarkan atas dakwaan yang tak berasas. Dan lebih penting lagi, hak reputasi kita tu turut dilindungi oleh undang-undang. Seperti mana yang kita dapat lihat, apa yang kita tulis di media sosial pun boleh membuat kita dipecat, hanya kerana ia bukan tentang apa yang korang kata, tapi apa yang dimaksudkan dengan kata-kata tu. Oleh itu, kalau korang rasa syarikat korang dah berlaku tak adil terhadap korang, cara terbaiknya adalah membawanya kepada pihak atasan atau ke pihak sumber manusia."
"In Malaysia, can you sue a transport company for causing you an injury? Note: This article was originally published in September 2020, and updated in May 2021. You might have heard about the LRT (Light Rail Transit) accident last week, where two LRT trains collided into each other. This is the worst LRT accident in 23 years, as 213 passengers were injured, with 47 of them suffering serious injuries. Prasarana, the LRT operator, has offered RM1,000 in compensation to each passenger, in addition to covering the medical costs and lost income. But a lot of netizens are claiming that the compensation is not enough, and Prasarana should be sued for a much larger sum. So you might wonder, for an accident such as this, how can the passengers take action against the people who caused it? Besides the fact that there might be a police investigation on the case, the victims themselves may be able to claim compensation. For this, they would, of course, have to sue for negligence. But as you’re about to find out, this isn’t as easy as it sounds. One man found this out the hard way when he was injured by a train wheel 18 years ago. The man who sued Monorail Malaysia The story starts on 16th August 2002. David Chelliah, a journalist, was crossing a road to get to his workplace for the day. On the way there, he had to walk under a newly constructed Monorail track. At that time, the trains weren’t operating yet but were still being tested. While David was standing under the track, a wheel from a train came off lose and hit David, leaving him seriously injured. He ended up losing consciousness for awhile. It was later said that the wheel, weighing close to 14kg caused: eyelid swelling fractures on his skull a blood clot in his right nostril some other physical impairments which he felt later on As time went by, he realised he was having problems with his memory, speech, vision and alertness. He was also losing strength in his hands, and this made it very difficult for him to work. If you remember, David was a journalist. He said that these injuries greatly affected his fieldwork and that he could not live a normal life. According to him, these things were irreversible, and he would need lifelong care. So when David filed a case in court in 2003, he asked for RM5 million as damages (compensation), with some additional costs: general damages (the amount was not specified) special damages of RM20,000 interest costs and future medical expenses of RM5,000 per month The case went on for 10 years So David was suing Monorail for negligence as they were the ones who designed, manufactured, installed parts of the trains and ran those trains. For those of you who don’t know, if you want to sue someone for negligence, you’ll have to prove these things: that the person who caused you the damage owed you a duty of care under the law that they breached that duty by doing a negligent act, or failed to take enough precautions that their negligent act is what caused you to suffer damage/injury their act of negligence would have very likely caused you some harm in the first place In David’s case, all these boxes could be ticked...but there was one problem. A negligent claim also requires the person bringing the claim, the victim, to prove exactly which act caused their injury. So for example, David would need to know whether it was the failure to tighten the wheel, or a bad quality of material, that led to the wheel falling and hitting him. Now, this can be a little tricky to pinpoint in some cases, and it was difficult to tell in David’s case too. When the case went to the High Court, David’s claim for an interim payment of RM250,000 was dismissed. An interim payment is given to a victim before a decision is made on a case, just so that they have enough to cover their expenses first. David then appealed this decision and it went to the Court of Appeal. There, the court allowed for David to be given an interim payment, but it was reduced to RM50,000. But again, this was just a payment before the final decision, and that decision was yet to be made. Now they had one problem to figure out: what was the exact act of negligence that caused the wheel to fall and hit David? The court applied a special rule to decide the case While the law can be strict, there are always exceptions to the general rule. Similarly, in this case, there was one particular way to help David. Although it is the job of the victim to prove which act caused his injury, a principle known as res ipsa loquitur (the fact speaks for itself) would shift this duty to the company who was being sued. So now, instead of David proving that Monorail was negligent, Monorail had to prove that they WEREN’T negligent. If they failed to do that, they would automatically be found to be negligent. When the final decision was being made, the judge said that it was not normal for a train wheel to just fall and hit someone’s head. If it did, it was not fitted properly, or the screws had start to come off with time. So even if the exact act of negligence could not be pinpointed, it could be said that the wheel coming off was due to someone in the company being negligent. The company could not prove that they had been careful enough, and so, they were found to be negligent. In 2012, David and Monorail agreed to settle David’s compensation through mediation instead of going to court. Mediation proceedings are out of court settlements and they are generally a lot more confidential than normal court proceedings. Because of that, we don’t know exactly how much David got as damages in the end. So unfortunately, it may not always be easy to sue a transport company if you ever get injured. However, the good thing is that there are exceptions that may help victims, even if it’s really difficult to single out the exact act of negligence. For the LRT case, it is possible for the passengers to take action, possibly through a class action lawsuit. But whether or not they succeed, is for the courts to decide."
"Thinking of becoming a politician in Malaysia? Here's 2 steps you should take Recently, Syed Saddiq applied to register his new party MUDA, and many netizens (even the ones young at heart) were curious on how to become a part of it: Shortly after that, he launched a Google docs sheet which allowed those who were interested in the party to show their support while waiting to be registered formally. Some of you might now be wondering if it’s really that easy to be a part of politics in Malaysia? The answer is both YES and NO. So in this article, we’ll be looking at how Malaysians can join political parties, and what exactly political parties need in order to be recognised legally. Step 1: Be 18+ and Malaysian In order to join a political party in Malaysia, you’ll have to meet several requirements first. For instance, you’ll have to be a citizen of Malaysia, have reached the age of 18 and comply with the laws stated under the Societies Act 1966. Section 9A of the Act states some of the reasons a person can be disqualified from joining a party: “...a person shall be disqualified from being, and shall not become or remain, an officebearer, adviser or employee of a registered society— (a) if he has been convicted of any offence against this Act; or (b) if he has been convicted of any offence under any other law and sentenced to a fine of not less than two thousand ringgit or to imprisonment for a term of not less than one year; or (c) if there is in force against him any order of detention, restriction, supervision, restricted residence...under any law relating to the security of, or public order in...or to prevention of crime, preventive detention, restricted residence, banishment or immigration; or (d) if he is an undischarged bankrupt; or (e) if he is and has been found or declared to be of unsound mind.” There are 5 reasons for disqualification listed under Section 9A of the Act which includes having an unsound mind and previous convictions. However, the Act goes on to say that the Registrar has the discretion to decide if a member qualifies or not at the end of the day: “Any person who is subject to any disqualification under paragraph (1)(a), (b) or (c) may apply to the Registrar to be exempted from the application of such disqualification, and the Registrar may, if he deems it proper to do so, grant him such exemption for such period as the Registrar may specify and subject to such limitations, restrictions, terms or conditions as he may decide to impose.” A Registrar is appointed by the YDPA and must carry out several duties as stated under the Act. So if the Registrar thinks a person qualifies to be a member of a society—in this case a political party—he can permit for the person to exempted from the laws stated in the Act. [READ MORE: Who runs the country when Parliament dissolves in Malaysia?] While most politicians have some sort of an educational background, you don’t actually need a higher education qualification to enter politics in Malaysia. Even an SPM qualification would suffice in terms of basic qualification. Once you’ve ticked this checklist, what comes next? Step 2: Join a recognised political party In order for a political party to be recognised, it has to be registered with the Registrar of Societies (ROS). ROS is the governing body that keeps an eye on all societies in Malaysia, including political ones. Political parties must register with ROS in order to be a legal society. Here’s basically what its defined as under the Societies Act: “...any society which by any of its objects or rules...constitutes merely an object or rule...makes provision for the society to participate, Societies 9 through its candidates, in elections to the Dewan Rakyat, or to a Dewan Undangan Negeri, or to a local authority, or makes provision for it to seek the appointment or election of a person proposed or supported by it to the Dewan Negara” So if a particular society plans to participate in the elections, it’s considered as a political society. Now the registration process is pretty straightforward. You can either visit ROS’s main office to do it or you can even do it online. There’s a manual with a step-by-step guide on how it can be done. In the event a member is disqualified from a political party, the law in the Act states that a fresh, new election must be conducted. This somewhat makes the election impartial and fair to everyone. There have also been circumstances where the ROS rejected political parties in Malaysia. The most recent case of this happening is to the Sarawak for Sarawakians (S4S), which was not allowed to be a registered political party, as ROS considered the party to be harmful to the country. So in the event a political party (society) is rejected, they can always make an appeal to the ROS within 30 days. [READ MORE: 3 ways you can get in LEGAL trouble for insulting Malaysian politicians]"
"Ini apa yang pemilik kondominium kena tahu sebelum ubah suai rumah mereka [Click here for the English version] Korang baru je beli rumah – satu unit kondominium di tengah keindahan kota raya. Sebenarnya, korang dah lama rancang nak hias rumah korang tu dengan perabot, cat dinding dan buat ubah suai, sesuai dengan citarasa sendiri. Korang nak besarkan sikit dapur dan tambah satu lagi bilik air dalam rumah. Maknanya, korang memang kena buat kerja pengubahsuaian untuk buat semua tu. Dengan rasa teruja, korang pun terus panggil kontraktor dan buat apa yang dihajati tu. Tapi, bila ubah suai dah sampai separuh jalan, korang tiba-tiba dapat notis dari pengurusan kondo yang minta korang hentikan ubah suai serta merta dan minta korang bayar denda RM10,000! Terkejut besarlah korang bila tahu, sebab pengurusan kondo kata – korang dah langgar garis panduan yang ditetapkan. Jadinya, untuk kali ni – kami akan menjelaskan tentang boleh atau tak korang ubah suai unit kondo di Malaysia. Tapi sebelum kita tengok pada undang-undang, jom kita teliti dulu siapa yang berkuasa di kondo atau di mana-mana hartanah strata di Malaysia. Mesti kena ada pihak pengurusan di hartanah strata Kalau korang tinggal di apartmen, kondominium (kondo), flat, SoHo, SoVo ataupun komuniti berpagar – korang sebenarnya tinggal di ‘hartanah strata’. Di bawah Akta Pengurusan Strata 2013 (“APS 2013”), ada tiga jenis badan pengurusan yang bertanggungjawab menjaga kondo korang. Badan pengurusan pertama dikenali sebagai Badan Pengurusan Bersama (JMB). JMB adalah hasil kerjasama antara pihak pemaju dan para pemilik hartanah strata. JMB kena memastikan kondo, apartmen atau yang sewaktu dengannya diuruskan dan berada dalam keadaan baik. JMB juga bertanggungjawab menentukan berapa banyak caj penyelenggaraan dan caj Kumpulan Wang Penjelas (sinking funds) yang akan dikenakan kepada pemilik unit. Tanggungjawab ni juga termaktub dalam Seksyen 21, Akta Pengurusan Strata 2013. Jenis kedua pula adalah Perbadanan Pengurusan (MC). Badan ni ada tugas dan kuasa yang agak sama dengan JMB, tapi hanya boleh ditubuhkan bila korang dah dapat hak milik strata (strata title) untuk hartanah korang tu. Perbadanan Pengurusan hanya melibatkan pemilik-pemilik hartanah, tanpa masuk campur pihak pemaju lagi. Yang seterusnya adalah Perbadanan Pengurusan Subsidiari (sub-MC). Sub-MC ni akan memainkan peranan secara berasingan bila diperlukan. Contoh ada pengurusan yang berasingan ni adalah bila adanya hartanah komersial dan kediaman atau harta bersama terhad. Sub-MC, tertakluk kepada peraturan daripada MC, serta mempunyai tugas dan kuasa yang sama dengan MC. Badan-badan pengurusan ni pada asasnya adalah sah di sisi undang dan dibenar menjalankan tugas-tugas mereka, bila melibatkan penyelenggaraan hartanah. Seksyen 21(1) Akta Pengurusan Strata 2013 menyatakan senarai tanggungjawab pengurusan yang salah satunya adalah: (a) untuk menyenggarakan dan menguruskan dengan sepatutnya bangunan atau tanah yang dicadangkan untuk dipecah bahagi kepada petak-petak dan harta bersama, dan menjaganya dalam keadaan yang baik dan pembaikan yang dapat digunakan; Jadinya, memang banyak peruntukan undang-undang yang membenarkan badan pengurusan melaksanakan tugas mereka, dan memastikan yang pemilik tak melanggar sebarang undang-undang yang ditetapkan dalam Akta. Hal ni kemudiannya membawa kita kepada persoalan pokok artikel iaitu boleh atau tak buat ubah suai di hartanah strata? Ia bergantung pada jenis kerja ubah suai yang nak dibuat Seperti yang dikatakan di awal tadi, hartanah strata akan ada badan pengurusannya sendiri dan ia bertanggungjawab menjaga hartanah berkenaan. Jadinya, kalau korang ada rancangan nak buat kerja ubah suai di unit kondo, korang kena ada surat kebenaran dari pihak pengurusan dulu. Satu lagi, mereka ada hak untuk tolak permohonan korang, kalau ia tak menepati garis panduan yang ditetapkan. Syarat-syarat tu pula bergantung kepada peraturan yang pihak pengurusan hartanah korang dah tetapkan. Biasanya, korang kena bayar deposit kepada pengurusan yang akan dipulangkan balik lepas ubah suai siap – dengan syarat ubah suai tu tak merosakkan mana-mana bahagian hartanah. Tapi, masih ada perkara yang korang tak boleh buat dan ia termaktub dalam undang-undang. Bahagian 7 dalam Jadual Ketiga Peraturan-Peraturan Pengurusan Strata (Penyelenggaraan dan Pengurusan) 2015 ada senaraikan beberapa kerja pengubahsuaian yang dilarang, antaranya adalah: (1) Melainkan kelulusan bertulis terdahulu telah diperolehi dari pihak berkuasa berkenaan dengan dan badan pengurusan bersama, pemilik hendaklah tidak – (a) membina tingkat lantai lain kepada petaknya (sebagai contoh, untuk memisahkan keratan lantai sedia ada dalam petak dengan menambah platform); (b) memindahkan mana-mana pintu atau tingkap dalaman petaknya; (c) menanggal atau membuat perubahan kepada mana-mana ciri keselamatan petaknya dan tidak tertakluk kelulusan sedemikian, pemilik hendaklah menanggung rugi dan memastikan menanggung rugi badan pengurusan bersama terhadap apa-apa liabiliti yang boleh timbul atau dialami akibat penanggalan sedemikian; (d) mengalih mana-mana sistem penyaliran atau pembetungan dalam petak; (e) menukar atau menambah baik keseluruhan sistem elektrikal dalam petak; atau (f) menyambung atau menyalurkan bekalan elektrik secara tidak sah. Jadinya, pemilik kena pastikan dapat kebenaran dulu dari badan pengurusan dan ikut segala peraturan yang ditetapkan oleh pengurusan bila buat sebarang kerja pengubahsuaian kondo/apartmen. Larangan yang disenaraikan ni pun kena diteliti betul-betul sebelum korang mulakan kerja pengubahsuaian. Kalaulah korang dah mula buat ubah suai unit kondo korang sebelum baca artikel ni, korang mungkin akan dapat surat dari pihak pengurusan yang minta korang bayar denda – dan itu memang sah untuk mereka buat. Bahagian 7 di bawah Peraturan 2015 ada bagi kuasa kepada badan pengurusan untuk buat macam tu: Badan pengurusan bersama boleh melalui suatu ketetapan dalam mesyuarat agung mengenakan denda pada kadar yang akan ditentukan oleh mesyuarat agung itu terhadap mana mana orang yang melanggar mana-mana undang-undang kecil ini atau undangundang kecil tambahan yang dibuat di bawah Akta. Maknanya, dah terang lagi bersuluh yang pihak pengurusan boleh denda korang sebab ubah suai unit tanpa permit dan wang tu nanti akan dimasukkan ke dalam akaun penyelenggaraan kondo/apartmen korang. Kami juga nak ingatkan yang bukan semua ubah suai kena dapatkan permit. Sebabnya, ia masih bergantung kepada jenis hartanah yang korang tinggal dan berapa banyak yang korang nak ubah suai. Boleh baca lebih lanjut di pautan bawah: [BACA LAGI: Certain home renovations in Malaysia may not require permits. Here's why]"
"Some states require pet licenses in Malaysia. Here's how to get one The last thing any pet owner wants is for their furry friend to be taken away from them...for good. Now you might have heard cases of enforcement authorities taking pets away from their owners. While it is legal for the authorities to do it, provided they have a valid reason to do so (more on this later)—there are prerequisites that pet owners should take as well, to avoid getting in trouble with the authorities or losing their fur-ever friend. [READ MORE: Animal abusers can get in BIG trouble under Malaysia's animal welfare laws] So before we look into how to keep your pet purr-fectly safe, let’s briefly look at the laws that affect pet owners in Malaysia. Pet owners are encouraged to get a license The Malaysian Animal Welfare Act 2015 has some pretty strict regulations when it comes to dealing with animals. In fact, an Animal Welfare Board has been set up to enforce the laws, and act on matters pertaining to animal welfare in the country. Under the 2015 Act, all individuals and businesses who handle animals for a living need to apply for a license from the Animal Welfare Board. Pet owners on the other hand must check with the local council of their area, as by-laws on pet licensing differ from one place to another. But there’s still a standardized law for pet owners under the Animal Welfare Act. Pet owners (especially dogs) have certain responsibilities listed under the Act. Pet owners and license holders are required to take care of each animals’ needs as stated under Section 24: “(1) The owner or a licensee shall have the duty to—(a) take reasonable steps to ensure that the needs of an animal are fulfilled, which includes— (i) its need for a suitable environment; (ii) its need for a suitable diet; (iii) the need for it to be able to exhibit its normal behavior patterns; (iv) the need for it to be housed with or apart from other animals; and (v) the need for it to be protected from pain, suffering, injury and disease;” Pet owners found guilty of any offence under the Act can have their pets taken away, and be barred from handling animals for up to 1 year. If you’re a license holder (eg; you own a pet salon or animal shelter) you can be barred from holding the license for up to 5 years as well as be barred from owning personal pets for up to 1 year. Okay we’ll stop horsing around and tell you how you can apply for a pet license in Malaysia. Check what the local council’s requirements are As we mentioned earlier, local councils can have different requirements when it comes to owning pets. We’re not going to list down the requirements made by every local council in this article—so we’ll just focus on the by-laws enforced in 3 major cities, so you have a rough idea on how the application process goes about. 1. If you and your pet live in KL So if you’re currently living in KL, your local council will be the Kuala Lumpur City Hall, or better known in Malay as Dewan Bandaraya Kuala Lumpur (DBKL). We previously contacted DBKL to ask them about the by-laws on animals. And according to them, there aren’t any specific laws on it. [READ MORE: In M'sia, you can be fined for rearing farm animals in your backyard] However, if you own a pet dog, you’re required to legally have a license for your dog in KL. Applying for a license isn’t actually that hard as you can do it online now via DBKL’s portal. They even have the guidelines on how to apply for the license which you can check out here. You’ll basically have to fill in an application form, and DBKL will get back to you via email if your pet’s license has been successfully registered or not. Some of the info you’ll need to provide include where you live, what type of property you live in and how big your property is. [READ MORE: Can you legally keep pets in Malaysian apartments?] The size of your house will determine the number of pets you can keep at home. For instance, if you live on landed property with an area more than 300 square meters, you can only have up to 2 dogs. There is a fee of RM10 imposed to obtain the license, and it is valid for one year for one dog. 2. If you and your pet live in JB The by-laws under Majlis Bandaraya Johor Bahru (MBJB) are pretty similar to DBKL’s as well. Dog owners are required to have licenses under the MBJB By-laws Act 1955. However, only landed properties are allowed to have pet dogs based on the local council’s by-laws. But the authorities' discretion is important here, as it depends on the mayor of the city to allow citizens to keep pet dogs in their houses, so long as the dog isn’t a nuisance to the neighbours, and is looked after. You can also consider applying for an animal identification card aka pet passport at Department of Veterinary Services Malaysia (DVS). This pet IC gives owners and their pets added protection as the pet can be traced with a microchip. The pet will also be legally registered under the Animal Welfare Act. 3. If you and your pet live in Penang There have been recent proposals made by the Penang Island City Council to establish laws on the maximum number of dogs Penangites are allowed to have in their homes. Similar to the other 2 states we talked about earlier, the Penang Island’s city council has laws on owning pet dogs. We found several by-laws in districts such as Seberang Perai, which state that a dog more than 3 months old must have a license in the district. The Seberang Perai City Council (MBSP) also prohibits keeping pet dogs in condos or apartments. As for the by-laws in Penang island, you might have to get in touch with the council to find out more as the laws are currently being amended. The law will bite you in the back if you neglect your pet A woman was recently fined RM30,000 for abandoning her two dogs until one of them actually died from starvation. The definition of “animal cruelty” has now expanded to 21 types of abuse as listed under Section 29 of the Animal Welfare Act 2015. Some of the acts include mutilation, neglect, use of cruel equipment, shooting for sport, and animal fights. Offenders under this section can be fined between RM20,000 and RM100,000 and/or 3 years of imprisonment. Although the Animal Welfare Act brought about much improvement for the quality of life of animals, the provisions in it are specifically intended for animal owners or people who abuse animals, not the powers of your local council/council workers in putting down certain dogs. This means that local councils have the authority to put down dogs if they’re caught roaming freely without a license and a collar. [READ MORE: Do local councils have the power to put down dogs in Malaysia?] But take note: The Federal laws don’t make it a necessity for pet owners to get licenses for their pets. The local by-laws will instead determine whether you need to get one for your pet or not. So be a responsible pet owner and also look out for other animals around you. If you come across a case of animal abuse near you, just call 999 to report the incident."
"Tandatangan digital sah ke di Malaysia? [Click here for English version] Sekarang ni, tandatangan elektronik bukanlah satu benda baru di Malaysia. Pada asasnya, tandatangan elektronik ni adalah gambar tandatangan yang boleh disimpan. Sebagai contoh, tandatangan digital daripada pengurus besar yang disesuaikan pada templat surat untuk dicetak secara banyak. Tujuannya tak lain dan tak bukan adalah memudahkan semua pihak dan tak perlulah pengurus besar tu tandatangan beratus-ratus helai dokumen/surat. Tapi sekarang ni pada 2020, penggunaan tandatangan digital dah semakin meluas dan orang biasa pun dah gunakannya. Dengan pelaksanaan PKPP sejak beberapa bulan lalu, tandatangan digital ni dah digunakan dalam menandatangani dokumen, sebab ramai yang tak masuk pejabat dan selalu mesyuarat dalam talian. Malah, abang-abang penghantar barang pun dah minta kita tandatangan atas phone mereka je sekarang dan tak payah lagi tandatangan guna pen – kertas. Dengan perkembangan ni, ia juga menimbulkan persoalan sama ada tandatangan digital ni sah ke tak di sisi undang-undang? Boleh ke kita tandatangan cek atau kontrak dengan tandatangan digital? Jadinya, kami pun cuba kaji dan dapat tahu yang jawapannya BOLEH dan TAK BOLEH. Tapi sebelum tu, apa kata kita tengok dulu apa dia tandatangan di sisi undang-undang. Tandatangan hanya tanda bahawa adanya niat Sebenarnya, tandatangan bukanlah hanya sekadar tanda nama kita conteng di bahagian bawah kontrak. Sebaliknya, tujuan tandatangan ni adalah sebagai cara untuk membuktikan yang kita ada kuasa atau bersetuju untuk sesuatu. Sebagai contoh, menandatangani kontrak membawa maksud yang kita bersetuju untuk patuh kepada terma dan syarat yang ditetapkan dalam kontrak berkenaan. Samalah keadaannya bila kita turunkan tandatangan sejurus saja terima barang yang dihantar, sebagai mengesahkan menerima barang tersebut. Tapi rupa-rupanya, tandatangan bukanlah penting sangat dalam perjanjian. Sebabnya, ia hanya cumalah satu cara untuk kita bersetuju dengan kontrak. Ini kerana, kita sebenarnya boleh secara lisan untuk bersetuju dengan seseorang, dan itu pun dah dianggap sebagai persetujuan dalam kontrak. Di bawah Seksyen 2 (h) Akta Kontrak 1950 dinyatakan: “sesuatu perjanjian yang boleh dikuatkuasakan oleh undang-undang adalah satu kontrak.” Ini bermakna, kalau sesuatu perjanjian tu dah memenuhi semua syarat di bawah Akta, ia akan menjadi kontrak, walaupun dibuat tanpa bertulis. Terdapat beberapa perkara asas untuk kontrak yang dinyatakan dalam Seksyen 10 (1) Akta Kontrak 1950: “Semua perjanjian adalah kontrak jika dibuat atas kerelaan bebas pihak-pihak yang layak membuat kontrak, untuk sesuatu balasan yang sah dan dengan tujuan yang sah dan tidak ditetapkan dengan nyata di bawah Akta ini bahawa ianya batal.” Jadinya, kalau kita dan seorang yang lain bersetuju untuk buat sesuatu, tanpa paksaan untuknya, ia secara automatik akan jadi kontrak. Namun, kita juga kena tahu yang kontrak tanpa bertulis tak terikat dengan semua perkara. Bagaimanapun, untuk artikel ni – kami cuma fokus pada kontrak yang dipersetuju melalui tandatangan. Kalau korang nak tahu lenih lanjut pasal perjanjian lisan, korang boleh baca pautan di bawah. [BACA LAGI: Is an unwritten promise legally binding? ] Jadinya sekarang, tandatangan digital ni macam mana pula? Seperti yang kitorang dapat tahu, ia sebenarnya sah. Sebab… Tandatangan digital dah sah sejak tahun 1997 lagi Pertama sekali, kita kena tahu dulu beza antara tandatangan digital dengan tandatangan elektronik. Ia mungkin saling gunakan, tapi sebenarnya ada perbezaan antara keduanya. Tandatangan digital selalunya datang dengan sijil digital, yang mana akan mengesahkan indentiti orang yang menandatanganinya. Manakala, tandatangan elektronik pula agak berbeza-beza. Ia selalunya adalah imej tandatangan tulisan tangan, yang dibuat dengan mengimbas dokumen yang ditandatangani. Tapi, ia juga boleh dibuat menggunakan komputer yang akan kami jelaskan nanti. Tandatangan digital dah diiktiraf sah di Malaysia sejak lebih 20 tahun lalu, iaitu melalui penggubalan Akta Tandatangan Digital 1997. Bagaimanapun, pengiktirafan tu cuma bagi teknologi tertentu untuk menandatangani dokumen. Di bawah Akta, tandatangan digital ditakrifkan sebagai: ""Tandatangan yang menggunakan kriptosistem asimetri yang disahkan dengan merujuk kepada kunci awam yang disenaraikan dalam sijil sah yang dikeluarkan oleh pihak berkuasa perakuan berlesen"". Jadinya, satu-satunya tandatangan digital yang diiktiraf adalah yang ada sijil untuk mengesahkannya. Dan sekali lagi, apa yang penting adalah tandatangan ini diakui sebagai pengikat sah seperti tandatangan tulisan tangan. Bagaimanapun, bentuk lain selain tandatangan elektronik juga diiktiraf, melalui Akta Perdagangan Elektronik 2006. Dalam akta ni, ada ditakrifkan sebagai apa yang diiktiraf sebagai tandatangan elektronik iaitu: “...apa-apa huruf, aksara, nombor, bunyi atau apa-apa simbol lain atau apa-apa gabungannya yang dicipta dalam suatu bentuk elektronik yang diterima pakai oleh seseorang sebagai suatu tandatangan Makanya, boleh dikatakan hampir apa saja yang kita nak guna boleh jadi tandatangan elektronik. Ia boleh jadi imej tandatangan tulisan tangan korang ataupun kombinasi huruf macam xXx_ThEd4RKn355WiTh1nME_xXx. Oleh itu, tahulah kita yang tandatangan digital ni sah di sisi undang-undang. Tapi, macam mana pula dengan tandatangan elektronik? Kami dapati yang tandatangan ni bukan saja sah, tapi juga… SMS pun boleh dianggap sebagai tandatangan elektronik Untuk tandatangan elektronik dianggap sah, ia kena memenuhi tiga syarat ni: Ia dilampirkan pada mesej elektronik Ia mengenal pasti orang dan persetujuannya terhadap maklumat yang berkaitan dengannya Ia boleh dipercayai dan sesuai untuk tujuan tersebut Untuk tahu sama ada ia dipercayai, ia perlu memenuhi 3 syarat ni pula: Hanya satu orang yang boleh membuat dan menghantar tandatangan Sebarang perubahan yang dibuat pada tandatangan selepas menandatanganinya dapat dikesan Sebarang perubahan yang dibuat pada dokumen setelah ditandatangani dapat dikesan Tiga syarat ni agak nampak payah nak diikuti, sebab sekarang ni boleh je orang photoshop tandatangan seseorang. Tapi, berdasarkan kes pada 2014, dah ditunjukkan yang bukan susah sangat nak menentukan kesahihan tandatangan. Ia terbukti dalam kes Yam Kong Seng & Anor lwn Yee Weng Kai (2014). Salah satu perkara dalam kes ni adalah nak menentukan sama ada – bersetuju untuk membayar seseorang melalui SMS boleh diikat secara sah di sisi undang-undang. Hakim bersetuju dengan perkara itu dan kata: Di bawah ECA (Akta Perdagangan Elektronik) ... di mana apa-apa undang-undang memerlukan tandatangan seseorang pada dokumen, keperluan syarat undang-undang dipenuhi jika dokumen itu dalam bentuk pesanan elektronik (SMS dalam kes ini)… Untuk tujuan rayuan ini, syarat undang-undang untuk tandatangan dipenuhi sebagai ... pengirim telah dikenal pasti dengan tepat… Nombor telefon responden dari mana SMS dihantar mengesahkan bahawa ia berasal daripadai responden sebagai pemilik berdaftar telefon itu… Tidak ada kemungkinan untuk membantah responden menjadi pengirim kerana responden sendiri mengakui menghantar mesej. Oleh itu, apa yang kita boleh faham adalah bersetuju dengan seseorang melalui SMS juga boleh dianggap sebagai tandatangan elektronik. Identiti mereka turut dapat disahkan, disebabkan ia dihantar ke nombor orang tertentu saja. Tapi sebelum korang buat keputusan untuk tandatangan, korang kena kena tahu dulu… Masih ada kontrak yang kita kena tandatangan dengan dakwat Di bawah Akta Perdagangan Elektronik, ada beberapa dokumen yang kita tak boleh tandatangan dengan tandatangan elektronik. Maknanya, kita memang kena tandatangan guna pen dan kertas. Dokumen-dokumen tu adalah: Surat Kuasa - Dokumen yang membolehkan kita melantik seseorang atau organisasi untuk menguruskan harta atau kewangan kita Membuat wasiat dan kodisil - Kodisil pada dasarnya adalah maklumat tambahan yang kita tambah pada wasiat Membuat amanah Instrumen boleh runding - Perkara seperti cek atau sijil deposit Kesimpulannya adalah – kita sekarang boleh je gunakan tandatangan elektronik atau lebih selamat dengan tandatangan digital. Walaupun begitu, tak dapat dinafikan yang tandatangan tulisan lebih selamat dan digalakkan. Sebabnya, dalam kontrak yang rumit – selalunya ia melibatkan banyak duit, dan korang kenalah teliti betul-betul setiap yang dinyatakan dan tandatangan dengan pen dan kertas. Sekurangnya, korang akan ada bukti hitam putih kalau apa-apa jadi nanti, dan yakin dengan apa yang ditandatanganni."
"A Malaysian man was fired for failing to update his Jobstreet profile If you’re a working adult, you would know how job applications work. Besides just directly applying to the company, you can also apply online through websites like Jobstreet or Monster. If you have used any of these, you would have filled in your personal details, education, working experience and so on. Our resumes naturally change with time, and we might forget to update the information on it now and then. But what happens if you apply for a job without updating your resume, or mistyped something on it? Well, a Malaysian man actually lost his job when applying for a new one...because the information on his Jobstreet profile wasn’t accurate. He was applying for jobs within his own company The story starts in 2000, the year the employee joined the company. By 2017, he was working as a Technical Officer with a monthly salary of RM6,900. In that same year, he started applying for other job vacancies within his company using Jobstreet. The HR was, of course, the one to receive the applications. At this point they realized that his job title on Jobstreet was different from this actual role in the company. So in October 2017, the company issued him a show cause letter. A show cause letter is given to an employee when the company wants an explanation for something the employee did. The very next day, the employee responded to the letter saying that the wrong information was due to a technical glitch. The company was not satisfied with this answer, and so they started a domestic inquiry into the issue and found him guilty of seven different charges of misconduct. He was then suspended for 14 days without pay, and he ended up appealing this decision. Failing to update his Jobstreet profile amounted to misconduct In February 2018, a Disciplinary Appeal Committee (DAC) heard the appeal. The employee actually did admit to these charges but again, he maintained that he didn’t lie about his credentials. He reiterated that the correct information had not been reflected because of technical issues. According to him, he had updated his information and saved it, but when he logged in the next time, those changes were gone. He went on to say that he had notified Jobstreet of this problem, but there was nothing else that he as a user could do to fix it. The company agreed that this could be a legit reason. But...there was another issue. When applying for the openings on Jobstreet, the employee had included a letter with one of the applications. It was a letter of recommendation from a superior, and it in, it said that the employee was a ‘Senior Manager Knowledge Management, when in fact, his exact role was ‘Executive Knowledge Management’. As a result of this, the company said that they couldn’t trust him to do his job anymore and so, they terminated him. The employee then filed a case in the Industrial Court for wrongful dismissal. The court agreed with the company The employee felt that what happened with the job applications didn’t warrant a termination. He also said that no one from the DAC—the committee which heard his appeal within the company—was called to give evidence in court. So he felt that he was dismissed without just excuse. In deciding the case, the court looked at two things: whether what the employee did amounted to misconduct and whether that alleged misconduct was a good reason to terminate him The court said that the employee himself had admitted to the seven charges of misconduct, meaning he agreed that he should have ensured his profile was updated. So the more important question was whether the employee was fired with a proper excuse. Just like the company, the court also agreed that it’s possible for technical glitches to happen, and this could have been why the information was inaccurate. However, the big issue was the letter from the superior, which didn’t state the correct job position of the employee. For this reason, it couldn’t be said that the employee was unaware of what was going on. The judge said: The Court does accept the Claimant’s explanation on his failed attempts to rectify the misrepresentation on the Jobstreet page. However, the Court does not find his explanation regarding the testimonial attached as per the seventh charge satisfactory. The Court finds the inclusion of this testimonial raises a doubt in the Claimant’s integrity. Therefore, the Court is with the Company on losing trust and confidence in the Claimant. So the court decided that the employee was indeed fired with just excuse and they dismissed his claim. Had the employee won the case, the company would have had to pay him compensation or give him back his job. Either of these are allowed under Section 20 of the Industrial Act 1967. Section 20 basically gives employees the right to bring a claim in the Industrial Court if they’ve been dismissed without a fair excuse. If you feel you’ve been terminated in such a way, you can also file a case in the Industrial Court. However, do note that you must do so within 60 days of being terminated."
"Is it legal to put a GPS tracker on someone in Malaysia? Imagine this: You’re cleaning your car one day and you find this tiny device in your backseat. You’ve never seen it before, and it definitely doesn’t look like a part of your car. After doing a quick Google search, you find out it’s a GPS tracker. You’re pretty sure the device doesn’t come with your car, and if it did it wouldn’t be in the backseat, without the driver knowing about it. Now this might sound like a story straight out of a thriller movie—but you’re beginning to suspect that someone might have actually planted the GPS tracker on purpose...to monitor your whereabouts. Maybe it’s a jealous ex-girlfriend or a colleague who’s secretly trying to catch you slacking from your sales job. Assuming you finally figured out who this might be, the next question you should ask is: Is it legal for someone to plant a GPS tracker on you or your belongings? Now we’ll be looking at 2 different situations, depending on where the GPS tracker is located. WHAT IF #1: The GPS tracker was planted in your belongings Let’s go with the scenario we mentioned earlier, where the GPS tracker was planted in your car without your permission. Now if a GPS tracker is planted anywhere or in anything that belongs to you (and you didn’t know about it)—the person who planted it has technically committed a crime. Section 441 of the Penal Code states: “Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property; or...unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”. So if someone enters your car and plants a tracker there, they’re basically committing a crime as stated under the Penal Code. The offence carries a punishment of imprisonment up to six months and/or a fine of up to RM3,000 if found guilty. Here’s something to take note of as well: The word property here doesn’t just refer to real estate or land, but refers to ""a quality or trait belonging and especially peculiar to an individual or thing"""". In essence, anything that is owned by someone is known as property, which includes bags and even smartphones. Now speaking of phones...what if the GPS tracker was installed into your phone instead? WHAT IF #2: The GPS tracker was installed into your phone Now we’ve actually covered this in detail when we wrote about installing tracking apps in your bf/gf’s phones because you don’t trust them. Read the article below: [READ MORE: Can you go to jail for installing tracking apps on your BF or GF's phone?] We’ve covered other Acts on hacking mobile devices in the article above, but here’s something you should note for the purposes of this article: Secretly accessing your bf/gf’s mobile device without their knowledge is an offence under the Computer Crimes Act 1997. This is stated under Section 3(1) of the Act: “(1) A person shall be guilty of an offence if— (a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer; (b) the access he intends to secure is unauthorized; and (c) he knows at the time when he causes the computer to perform the function that is the case.” So if you suspect that the GPS tracker was installed in your phone/device by your lover or an ex for instance—you can make a police report as it is an offence which was committed against you. The law under Section 3(3) of the Act states that: “A person guilty of an offence under this section shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding five years or both.” Once you lodge a police report, the authorities will then take over the case and the person who installed the GPS tracker can be thrown into prison for up to 5 years, fined up to RM50,000, both. While the likelihood of such a situation being brought to the police is pretty low (as it can be settled privately within the relationship), it’s still best to consult a lawyer if any legal proceedings are required to be taken. GPS trackers aren’t illegal depending on how it’s used While Malaysian law recognises our right to privacy, suing someone for an invasion of privacy is slightly more difficult, as we mentioned earlier. The victim would need to prove an extra element, such as humiliation, harassment, or damage to someone’s reputation for any action to be taken. However, you can still put the person who planted a GPS tracker in your personal belongings without your permission behind bars. Now GPS trackers aren’t totally illegal as some authorities (like PDRM) can use them in certain circumstances. However, when it comes to a situation involving two civilians, and the person who put the GPS tracker did not get permission from the owner of the property to do it, then it’s considered illegal."
"Can Selangor residents sue the factory owners who caused the water disruption? When Selangor’s water disruption was announced to last four days, the state’s residents were understandably upset. The reason for the water cut: pollution at the water source. The suspect: a factory in Rawang, which was discovered shortly after it happened. Turns out, this wasn’t the factory’s first offence – they’ve actually committed the same one in March during the MCO. The factory, Yip Chee Seng & Sons Sdn Bhd, was only fined RM60,000. Four brothers who were the factory owners have already been arrested. To some people, that might not be enough, as there have been questions on whether we can sue them. The Consumers Association of Kedah (CAKE) has offered to sue them on behalf of consumers in Selangor. The question now is, since the factory owners have been arrested, could you sue them for causing the water disruption? Well, technically...no. Why can’t you sue the factory owners? Because in this case, the responsible party for the pollution was the factory, which is considered as an entity by itself. In this case, the owners are considered the ‘directors’ of the company, because when you create a private limited company, it is an entity by itself, separate from the owners. [READ MORE: Sendirian Berhad companies exist today because this man won a lawsuit in 1893] This is similar for criminal cases. Unless there are specific provisions, you can’t “lift the corporate veil” – which basically means charging the directors themselves. This specific provision did happen this time, as the directors were charged under the Water Services Industry Act 2006. Under Section 165 of the Act, the director can be charged together or separately with the company, for any offences done by the company. But even if you can’t sue the directors, you can still sue the company. Because under the law, companies are technically “people” which means they can be sued. In general, if someone’s action has caused you harm, in this case polluting our water supply, they can still be sued. It can happen, even if the company directors are already charged with a crime. Acording to the lawyer we consulted, Tanusha Sharma: “Even if (the factory directors) have been charged criminally for their actions, the (company) could also fit the bill for a negligence suit.” – Tanusha Sharma, lawyer In short: yes, you can sue the company, but not the owners. But when suing someone, that person must have done a wrongdoing (tort) that affected you. And in this water pollution case, the factory owners would likely be sued for negligence. In these cases, there are mainly 4 things to prove: they owe a duty of care that duty of care was breached there was a causation (the incident was caused by them) the damages are not too remote (that means the damages were foreseeable)” [READ MORE: Did you know you can be taken to court for something that is NOT a crime?] So based on these four criteria, it might be possible. The company had a duty to not pollute the rivers, which was obviously breached when their waste leaked into the river. Since we can pinpoint that it was done by them, and that the effect (stopping the water supply to clean their mess) was a direct result of their actions, the tort of negligence can apply to them. It’s easier to sue as a group Basically, when you sue someone, it’s because they have harmed you personally. But in cases where someone’s action harmed a lot of people, it’s probably best to do it together. This is called a class action suit. Technically, you could still sue them by yourself. But there are a few reasons to do it as a group. The first one is financial. “(legal fees) will definitely be cheaper if you sue as a class action suit, as you split the legal costs among a large group.” – Tanusha But that isn’t the only reason. “For cases of this nature, which involves damage inflicted to large groups, a class action is a more suitable way of going. Because it’s not just one individual who is affected, but rather almost the whole of Selangor. So it would make sense to sue as a class action, as most would have the same grievances on the same subject matter, and are seeking the same remedies. The impact of a big group bringing the claim could also play a factor in the strength of the claim.” – Tanusha Basically, suing on behalf of a large group of people is useful, since everyone is suing for the same thing. Having a large number would also make your case much stronger in the eyes of the court. This lawsuit can go up to a few million There have been complaints on social media that the RM60,000 fine for the factory is not enough, as it has assets worth nearly RM60 million. If you’re one of them, you might be glad to know that they can be sued for millions this time. We can look at the Sivagangga cluster case, where the shop owner who started the cluster was sued for RM1.5 million by CAKE. “The Sivagangga cluster suit involved a class action suit of over 100 residents and business owners. So when there's such a large group and you're taking into account the financial losses suffered by them due to being quarantined, its gonna well reach high figures.” – Tanusha CAKE is planning to start their civil case against the factory soon, and we’ll have to wait and see the results of it. But considering that 1.2 million people were affected by the water cut, we can expect to see a large torrent of support for a high fee."
"Here's 5 types of complaints you can make against sellers in Malaysia Picture this: You’ve just purchased an item online and the seller says it will be delivered within a week. But the weeks turn into months and there’s no sign of the item that you bought. Frustrated, you report the seller to the online shopping platform and they tell you they’ll look into it soon. But now you’re left to wait again. [READ MORE: 5 consumer rights you didn't know you had in Malaysia] If complaints to the platform don’t work, you can file a case against the seller in the Consumer Tribunal. This tribunal is like a court, but it only hears consumer-related issues. And in case you didn’t already know, there’s a whole set of laws for consumer protection known as the Consumer Protection Act 1999. This Act lists down all the things that sellers can be penalized for, from not being transparent about their products, to asking you to ‘PM tepi’. So if you’re an unhappy customer, here are five things Malaysian sellers do that you can report to the Consumer Tribunal. 1. Hidden charges or inaccurate prices When this happens, you end up paying a lot more than you were initially told to pay. So for example, you pay a 50% deposit on a cake that’s priced at RM100. But when it’s time to pay the remaining RM50, the seller tells you that you owe her RM80 instead due to taxes and handling charges. This is actually an offence under the CPA 1999. Section 12 of the Act says: (1) A person commits an offence— (a) if he gives to a consumer an indication which is misleading as to the price at which any goods or services are available; or (b) if an indication given by him to a consumer as to the price at which any goods or services are available becomes misleading and he fails to take reasonable steps to prevent the consumer from relying on the indication. Just to be clear here, it’s not wrong for sellers to impose additional charges on their products or services where necessary. But all these extra costs need to be mentioned upfront before you get into the deal. 2. If you’re promised a freebie but don’t get one Every now and then, you might come across a product which comes with a free gift. You might even be more inclined to purchase that item because of the freebie. So let’s say that you do buy it, but when it arrives, it doesn’t have the free gift with it. This may seem like a trivial thing to you and you would most likely just let it go. But a seller who promises you a free gift and then doesn’t send it is actually breaking the law. Section 14 of the CPA 1999 says: (1) No person shall offer any gift, prize or other free item— (a) with the intention of not providing it; or (b) with the intention of not providing it as offered. But take note that there is an exception to this, because subsection 3 of this same section goes on to say: A person who offers a gift, prize or other free item may impose any reasonable condition on the offer. So there may be some instances where the seller can be excused for not including your free gift. One example would be if the gift is out of stock. But it would still be the seller’s duty to inform you of this, or offer you a different free gift if you agree to it. 3. If what you saw...isn’t what you got Section 10 of the CPA 1999 says that it’s an offence for sellers to mislead their customers by selling something different to what was advertised: No person shall make a false or misleading representation... This is a super long section, but it basically says that ‘false or misleading representation’ can mean any one of these things: incorrect standard/quality/model not mentioning whether they’ve already been used by other people before (basically its condition) the exact uses and benefits of the product or service are not accurately stated any side or adverse effects are not made known no mention of where exactly the product or service comes from or who the manufacturers or suppliers are Besides this, sellers who put up exaggerated images of their products in advertisements would also fall in this category. This is known as ‘puffery’, and it is strictly prohibited in Malaysia. An example of this would be an advertisement of a burger that is twice its actual size. So if you come across a seller who’s doing any of these things, you know what to do. 4. Products or services that don’t meet safety requirements Section 20 of the CPA 1999 says: No person shall supply, or offer to or advertise for supply, any goods or services which do not comply with the safety standards determined under section 19. And if you’re wondering what Section 19 is about, it basically says that the Minister may make regulations with regard to the safety standards of any products. These regulations can cover anything, from a product’s design, to its manufacturing and use. But in essence, sellers who sell products that don’t meet these standards can be in deep trouble. The product itself should state that it is safe to use. For electronic items, look for the SIRIM and/or MCMC label on it. For food and cosmetic items, make sure there’s an actual manufacturer name on it so you know it’s legit. Kementerian Kesihatan Malaysia also puts out a list of banned health and beauty products every year—you can find 2020’s list here. 5. If your item arrives later than promised If you shop online often, you would know that items are sometimes delivered past the given date. While this is common, it’s actually something you can file a complaint against a seller for, especially when the delay is unreasonable. The Ministry of Domestic Trade and Consumer Affairs confirmed this in a Facebook post of theirs. If the seller has given you a date range (eg. one week) instead of a specific date, your product can be delivered on any date of the given range. But if it’s well past the given date, then you have the right to complain. However, sometimes delays are inevitable especially if there’s an unforeseen circumstance , such as your item being stuck in customs for longer than usual. In such cases, sellers are allowed extra time, but they must inform you of the delay. [READ MORE: 3 reasons to sue your seller for late delivery in Malaysia] If you can relate to any of these and want to file a complaint against a seller in the Consumer Tribunal, you can do so here. However, do note that the Tribunal can only hear claims worth RM25,000 and below. So if the product or service in question is worth more, you’ll need to file a case in a normal court. But there is one exception to this: if your claim is worth more than RM25,000 but both you and the seller agree on having the case heard in the Tribunal, the Tribunal will be able to decide on the case."
"A Malaysian man owes the bank RM70,000 after being scammed by a property agent You’ve come a long way in life—and finally make enough money to afford a house in the big city. After months of searching, you finally got hold of a property agent who offers to sell you a luxurious condo unit that’s fully furnished and comes with a 60% cash rebate! He tells you that this is a once in a lifetime offer and you’ll have to act quick before the unit is sold off. Next thing you know: You’ve signed the SPA, taken a loan, and you’re just waiting to see your luxury life ahead of you until...you get a notice from the bank several months later, telling you that you haven’t been paying your loan repayments. You’re now stuck with a RM70,000 debt with the bank and the property agent is nowhere to be found. This is an actual experience shared by a Malaysian technician, whose dreams of owning a house was crushed when he found out that he had been scammed. Here’s basically how he got into this bad bargain… The agent convinced him to buy not 1, but 2 units Wong, the technician came across a Youth Home Scheme that was posted on social media in 2017. He then got in touch with an agent who told him that Wong could be the owner of a 2-bedroom unit in Johor Bahru for only RM390,000. The agent also told him that he didn’t have to pay for the downpayment, so long as he gives the agent a certain amount first, which the agent will use to pay for Wong’s new condo unit. The agent promised to pay for the monthly loan installments, renovation works and would even secure a tenant for him as additional income. To sweeten the deal, the agent convinced Wong to buy 2 units—telling him that he could invest first and sell one of the units later on. Wong was so convinced that he accepted the deal, and the agent proceeded to apply for a loan for each unit priced at RM500,000. Several months passed when Wong started getting calls and warning letters from the bank, stating that his loan repayment was piling up. When he finally realised something was amiss, Wong decided to go and look at the property himself and was shocked to see no renovation works were done, plus the property wasn’t even occupied with a tenant. [READ MORE: If you bought a haunted house in Malaysia, do you call the Ghostbusters... or a lawyer?] Wong did contact his agent during this period, only for the agent to tell him that he will repay the loan amount in the upcoming 2-3 months. He then completely lost contact with the agent sometime in February this year. TLDR: Wong now owes the bank approximately RM70,000 and both his units are up for auction by the bank. His case has also been referred to the Magistrate court, where he will proceed to file a case against the property agent. Now, if you’ve ever been in Wong’s situation (or know someone who has)—whether it involved buying property or even something on Lazada, you’d probably know what it feels like getting into a bad bargain. It’s best to check if the property agent is legit Home buyers could consider themselves lucky this year with the extension of the Home Ownership Campaign (HOC) and other rebates which are being offered right now. However, this is probably also the time for numerous scams involving property sales to arise. The next time you get in touch with a property agent—especially if you two ‘meet’ online, consider asking them for their registration number. Property agents in Malaysia are recognised as professionals under Malaysian law. This is stated under the Valuers, Appraisers, Estate Agents and Property Managers Act 1981 which says: “(1) No person shall unless he is a registered estate agent and has been issued with an authority to practice under section 16— (a) practise or carry on business or take up employment under any name, style or title containing the words “Estate Agent”, “House Agent”, “Property Agent”, “Land Agent”, “House Broker”, “Real Estate Agency Consultant”, or the equivalent thereto...which may reasonably be construed to imply that he is a registered estate agent or that he is engaged in estate agency practice or business...” So a property agent needs to be registered under the law first, in order to practice as one. There are also several requirements for property ads which are posted online, that the property agent or agency must comply with. For instance, the advertisement posted must have the agent’s name, contact number and registration number to prove legitimacy. You can basically look up the agent using their name, IC number or registration number. Their database also includes firms which you might want to check on to see if its legitimate or not. An illegitimate agent can be fined up to RM300,000, face jail time up to 3 years or both—as it is an offence under the law. And if you ever find yourself in Wong’s shoes someday, make a police report against the illegal property agent. But you might still be stuck paying for the loans taken under your name, unless you can prove that you didn’t agree/authorize any property dealings in the first place. [READ MORE: Have you ever bought a house in Malaysia and had no idea what you signed?]"
"Boleh ke restoran halang anda bawa masuk makanan dari luar? [Click here for the English version] Cuba bayangkan macam ni, hari tu korang rasa macam nak berjimat sikit, jadi korang pun tapau makanan dari rumah bawa pergi tempat kerja. Tapi bila sampai masa makan tengah hari, kawan-kawan pejabat korang ajak pula makan dekat luar. Disebabkan tak nak hampakan diorang, korang pun ikutlah diorang pergi restoran, dan tiba-tiba korang nampak papan tanda – “DILARANG MEMBAWA MAKANAN DARI LUAR”. Korang buat tak tahu je, sebab sebelum ni ada je korang bawa masuk makanan dari luar, walaupun ada papan tanda yang larang. Tapi kali ni keadaan berbeza, bila pelayan restoran halang korang dari bawa makanan tu. Dengan rasa malu dan tertanya-tanya, – “Boleh ke restoran halang korang bawa makanan dari luar?” Apa restoran boleh buat kalau korang bawa makanan dari luar? Restoran pasa asasnya bertindak secara menasabah. Pertama, diorang cuma beritahu yang korang tak boleh bawa makanan dari luar. Lepas tu, diorang mungkin akan caj korang sebab bawa makanan dari luar. Dalam kes yang ekstrem, diorang akan halau korang keluar. Tapi boleh ke diorang halau korang keluar? Ya, diorang boleh. Menurut kawan peguam kitorang, Fahri Azzat, restoran ada hak untuk halau korang keluar. Walaupun tak ada undang-undang khusus yang menghalang orang dari bawa makanan luar, tapi korang kena tahu yang restoran adalah harta persendirian dan pemilik harta persendirian boleh mengenakan peraturan kepada orang lain. Jadi, bila korang masuk ke premis diorang, ia bermakna yang korang terikat dengan peraturan diorang. Ini apa yang dijelaskan oleh Fahri: “Semua restoran adalah harta persendirian. Pemilik harta boleh memberikan kebenaran (atau dalam istilah undang-undang, lesen) kepada seseorang untuk masuk ke tanah mereka. Dalam memberikan izin, mereka boleh mengenakan syarat-syarat yang anda perlu ikuti.” – Fahri Azzat, dari jawapan emel-nya kepada Asklegal. Pada asasnya, restoran diorang, maka peraturan diorang. Jadi, kalau restoran tu ada kod pakaian formal yang ketat, korang juga kena patuhinya. Macam mana kalau korang beli minuman dari restoran dan makan bekal makanan sendiri. Adakah ni bermaksud yang restoran kena layan korang? Jawapannya bergantung pada keadaan, sebab ada sesetengah restoran yang benarkan dan ada juga tak benarkan. Korang mungkin terfikir yang restoran buat macam ni sebab nak korang – cuma beli makanan dan minuman diorang je kan? Tapi sebenarnya, ada sebab yang lebih besar untuk peraturan sebegini. Diorang tak nak bertanggungjawab kalau korang kena keracunan makanan Bukan kerana takut korang saman diorang. Sebab diorang sendiri tak bertanggungjawab untuk makanan luar. Tapi, ia pasal di mana korang dapat makanan tu. Hal ni boleh kita lihat dalam Seksyen 13(1) Akta Makanan 1983, di mana ia adalah kesalahan untuk menyediakan makanan yang berbahaya untuk kesihatan. Mana-mana orang yang menyediakan atau menjual apa-apa makanan yang ada dalam atau padanya apa-apa bahan yang beracun, merosakkan atau selainnya memudaratkan kesihatan melakukan suatu kesalahan dan apabila disabitkan boleh didenda tidak melebihi satu ratus ribu ringgit atau dipenjarakan selama tempoh tidak melebihi sepuluh tahun atau kedua-duanya. Apa yang diorang takut adalah kes macam ni boleh bagi kesan kepada restoran diorang. Korang mungkin dapat sakit sebab makanan dari luar, tapi korang muntah dalam premis. Orang mesti ingat yang korang kena keracunan makanan tu sebab makan makanan restoran. Seperti mana yang Fahri jelaskan: ""Restoran tidak akan bertanggungjawab. Pembekal atau penyedia makanan yang dibawa ke restoran akan bertanggungjawab. Walau bagaimanapun, restoran mungkin kelihatan buruk kepada orang lain kerana 'pelanggan' kelihatan seolah-olah mereka sakit kerana makanan yang dimakan di restoran itu. "" Boleh ke restoran denda/halau korang keluar sebab bawa makanan dari luar? Seperti mana yang diberitahu sebelum ni, restoran tu adalah harta persendirian dan korang tertakluk dengan syarat-syarat yang ditetapkan bila korang berada dalam premis tersebut. Ada restoran yang mungkin akan caj korang sebab bawa makanan dari luar, tapi ia bergantung kepada berapa tegasnya diorang jalankan polisi tu. Korang juga boleh diminta untuk keluar dari restoran. Kalau korang pilih untuk tetap berada dalam restoran, walaupun dah diminta keluar, korang berpotensi untuk lakukan pencerobohan (trespassing) premis. Kata Fahri: ""Jika anda melanggar peraturan restoran, mereka boleh mengatakan bahawa anda tidak memenuhi syarat untuk masuk dan mengusir anda. Jika anda enggan, anda akan menceroboh premis itu."" Dengan tetap tak nak tinggalkan premis, korang dah lakukan “pencerobohan jenayah” di bawah Seksyen 441, Kanun Keseksaan (tiada terjemahan rasmi, diterjemahkan oleh Asklegal): Sesiapa yang memasuki atau ke atas harta yang dimiliki oleh orang lain dengan niat untuk melakukan suatu kesalahan atau untuk mengugut, mengaib atau mengganggu mana-mana orang yang memiliki harta itu; atau dengan sah mengikut undang-undang atau harta sedemikian, terus menyalahi undang-undang di sana dengan maksud untuk menakutkan, mengaibkan atau mengganggu mana-mana orang itu, atau dengan niat hendak melakukan suatu kesalahan, adalah dikatakan melakukan ""pencerobohan jenayah"". Akibatnya, korang boleh didenda maksimum RM3,000 dan/atau dipenjara maksimum 6 bulan di bawah Seksyen 447, Kanun Keseksaan. Siapa yang melakukan pencerobohan jenayah akan dihukum dengan penjara selama tempoh yang boleh berlanjutan hingga * enam bulan atau dengan denda yang boleh sampai * tiga ribu ringgit atau dengan keduanya. Kesimpulannya, cara terbaik adalah korang ikut je peraturan dan syarat-syarat yang dah ditetapkan oleh sesuatu restoran tu. “Dilarang Membawa Makanan Dari Luar” sebenarnya lebih dari sekadar alasan ekonomi. Diorang tak nak dipandang serong atau disalah sangka, bila korang sakit sebab makan makanan dari luar, dalam estoran diorang. Kalau korang nak bawa juga, cuba tanya dulu kepada pihak restoran, tapi ingat ni – kalau bos kedai tu kata tak boleh bermakna tak boleh."
"What was one of the earliest court cases after Merdeka in 1957? We find out At the time of writing, it’s our 63rd Hari Merdeka. We were curious to know what the first court case after Merdeka was, and so we did some research. While it’s difficult to tell which exactly was the very first case, we found some that were heard in court just a few days after 31st August 1957. In this article, we’re going to be looking at the events that took place in the case of Narayani Amma v Mohamed Din—a case that was recorded on 6th September 1957. It was heard in the Kuala Lumpur High Court, which in case you didn’t know, isn’t the same KL High Court that we have today. But before we get into the story, let’s take a quick look at what the legal system was like then, and how it all came to be in the first place. Our courts existed well before Merdeka As some of you already know, Malaysia’s legal system is largely based on English law, as we used to be ruled by them pre-Merdeka. But we didn’t get our laws only after independence, because many laws that we have today were already enacted during the colonial rule. In fact, some of the oldest cases in Malaya, as it was known then, can be traced to the early 1800s. While the laws may have been different then, the system pretty much worked in the same way it does now. We had different levels of courts, and even different types of courts, just like we do now. But whatever changes that happened didn’t just suddenly happen overnight after Merdeka. For a period after independence, many English judges still heard cases in our courts, and sometimes they had to refer to UK law if Malayan law couldn’t provide them with an answer. The case of Narayani Amma, which we’re looking at today, is one such case. So here’s what happened... A man died from being knocked over by a British war department vehicle The case involved a man who worked for the Central Electricity Board (CEB)—basically Tenaga Nasional Berhad today. One day, he was knocked over by a United Kingdom War Department vehicle which was driven by a local man named Mohamed Din. The victim, whose name was not disclosed in the judgment, died from the injuries. His wife, Narayani Amma was allowed to claim compensation over his death from the CEB. To get the compensation, she had to submit a document to the company. The document said: “I wish to claim for compensation under the Workmen's Compensation Ordinance. In the event, I or on my behalf the employer takes civil action against the owner of the vehicle for damages, I undertake to indemnify the employer i.e.. I agree to refund the amount paid to me by the employer. The other dependents also will undertake to refund the amount in the event the claim is successful.” In other words, it said that if she received compensation from her husband’s employer, she or the employer could not sue the owner of the vehicle that killed him. If she did, she would need to return the compensation given by the employer. And this didn’t just apply to her, but also to whoever else received the compensation (eg. their children). So the document above didn’t allow her to sue the owner of the vehicle and get compensation from them. But interestingly, the ‘owner’ was actually the Queen of England, as it was a war department vehicle. Narayani Amma obviously could not sue the Queen. But now, she had taken Mohamed Din, the driver, to court to get more compensation for injuring her husband. So the court now had to decide: could Narayani Amma get compensation from the husband’s company AND the driver who hit him? The court awarded his wife $12,250 As you can already tell, this was a complicated case with complicated laws in question. The court decided that they needed to look at the facts of the case on the whole, before making a fair decision. The court looked at the case of Oliver v Nautilus Steam Shipping Co Ltd [1903], which had similar facts to the case: the employee had injured himself while working the company gave him some small amounts of money as compensation he later sued the third party responsible for the injury the court allowed him to sue this third party, as he accepted the ‘compensation’ given by the company with the idea that he would not lose his legal right to sue whoever was responsible for the injury The judge in Narayani Amma’s case said that the compensation money she received had to be seen the same way it was in Oliver’s case. They had to take her circumstances into consideration, and that they decided that the compensation she received did not fall under the Workmen’s Compensation Ordinance. Because of that, she could not be barred from claiming compensation from Mohamed Din. So while she did produce a document agreeing to not sue a third party, based on the circumstances of her case, it was unfair to impose that on her. The judge asked that the following amounts be paid to her: Herself: $4,250 Her husband’s mother: $750 Her first son: $1,000.00 Her second son: $2,000.00 Her third son: $4,000.00 She was also given an extra amount of $100 and another $150 for funeral expenses. All in, this came up to $12,250. If you’re wondering why the currency here is ‘$’ and not ‘RM’, it’s because the ringgit was only introduced in 1967. We’re not sure if this case was ever appealed, but these are all the records on it that we found. And here’s another interesting fact: this law still exists today. Section 20 of the Workmen’s Compensation Act 1952 says that a double compensation in the case of an injury is not allowed. But as we learned today, what the court decides really depends on the facts of each case."
"Kalau ditahan polis, betul ke kita ada hak untuk berdiam diri? [Click here for English version] Cuba bayangkan senario ni: masa korang tengah makan dengan kawan-kawan, tiba-tiba sekumpulan lelaki berseragam (PDRM) datang dan kata yang korang sekarang ditahan. Korang pun rasa terpinga-pinga dan takut nak kata apa-apa, jadinya korang pun ikutlah diorang ke balai polis. Di sana, korang dibawa ke satu bilik dan disoal siasat pasal kes rompakan yang jadi di kawasan perumahan berdekatan. Korang tahu yang korang tak bersalah, tapi disebabkan korang rasa takut, korang tak tahu nak cakap apa. Tapi secara tiba-tiba, korang teringat dengan kata-kata yang selalu korang dengar masa tengok drama-drama jenayah atau polis. Macam inilah lebih kurang kata-kata tu: “Anda ada hak untuk berdiam diri. Segala yang anda kata boleh digunakan terhadap anda di mahkamah (You have the right to remain silent. Anything you say can and will be used against you in a court of law)”. Tapi itu selalunya kita dengar dalam drama-drama Hollywood dan korang pula di Malaysia. Sama ke hak korang untuk berdiam tu di Malaysia atau sebaliknya? Kalau anda ditahan, anda sentiasa ada hak asas Pertama dan mula-mula sekali, apa yang penting untuk korang tahu adalah korang sebenarnya ada banyak hak kalau korang ditahan di Malaysia. Tak bermakna disebabkan korang ditahan, korang akan terus masuk lokap dan tak boleh buat apa-apa lagi. Sebabnya dari awal sampai akhir, korang masih lagi manusia dan korang tetap dianggap tak bersalah selagi tak dibuktikan bersalah. Jadinya, sebagai orang yang ditahan, undang-undang dah menetapkan hak-hak tertentu kepada korang. Antaranya adalah: hak untuk bertanya kenapa korang ditahan dua panggilan telefon selepas korang ditahan (melainkan polis percaya yang panggilan tu boleh merosakkan siasatan, contohnya: korang mungkin merancang untuk lepas diri) hak untuk mendapatkan peguam untuk bawa kes korang Korang boleh tahu banyak lagi hak-hak yang ada dengan baca Buku Merah yang disusun oleh Badan Peguam Malaysia. [BACA LAGI: What are your rights if you get arrested by the PDRM?] Di bawah hak-hak ni, dah dinyatakan yang korang ada hak untuk berdiam diri. Hak ni pada asasnya bermaksud korang tak ada kewajiban untuk menjawab soalan-soalan yang ditanya oleh polis masa disoal siasat. Ini adalah hak yang sah, jadi kalau korang dipaksa menjawab, korang boleh kata yang korang cuma menggunakan hak yang korang ada. Untuk rujukan, kita mungkin boleh tengok kes Omar bin Daud v Public Prosecutor, di mana tertuduh (Omar) dah ditangkap dalam satu operasi serbuan dadah. Masa dalam perbicaraan, Pendakwa Raya (orang nak bawa kes) tanya Omar kenapa dia tak cakap apa-apa masa dia diberitahu sebab mengapa dia ditahan. Hakim yang memutuskan kes berkenaan tak membenarkan soalan tu, dan kata yang Omar pada dasarnya menjalankan haknya. Beliau berkata: ""Saya tidak membenarkan soalan itu kerana, pada pandangan saya, dalam memilih untuk berdiam diri, tertuduh hanya menggunakan hak yang sah dan oleh itu tiada kesimpulan tentang rasa bersalah boleh diambil terhadapnya."" – Hakim Edgar Joseph Jr Tapi, kenapa korang ada hak untuk berdiam? Secara semula jadinya kalau korang dituduh dengan sesuatu yang korang tak buat, korang mesti nak kata sesuatu untuk pertahan diri. Apa yang menariknya adalah, inilah sebab kenapa kita perlukan hak untuk berdiam diri. Hak itu wujud supaya anda tak mengaku bersalah terhadap jenayah yang anda tak buat Mungkin kita boleh faham jugalah kalau korang ditangkap, disoal siasat dan tak kata apa-apa. Tapi, macam mana kalau korang dah dibawa ke mahkamah dan korang masih tak nak jawab apa-apa soalan? Patut ke korang gunakan hak untuk berdiam diri masa tu? Jawapan untuk ni sebenarnya bergantung kepada soalan yang ditanya. Kalau kita tengok Seksyen 112(2), Kanun Tatacara Jenayah, di sana ada diberikan gambaran tentang rasionalnya di sebalik hak ini (tiada terjemahan rasmi, diterjemahkan oleh Asklegal). Orang itu hendaklah terikat untuk menjawab semua soalan yang berhubungan dengan kes yang diletakkan kepadanya oleh pegawai itu: Dengan syarat bahawa orang itu boleh enggan menjawab apa-apa soalan jawapan yang mana akan mempunyai kecenderungan untuk mendedahkannya kepada pertuduhan atau penalti jenayah atau pelucuthakan. Jadi, pada asasnya hal ni bermaksud: korang patut menjawab soalan-soalan yang ditanya oleh pegawai polis, MELAINKAN jawapan tu boleh membuka ruang menampakkan korang bersalah atau memaksa korang menerima tuduhan yang dihadapkan kepada korang. Contoh mudahnya macam soalan begini: Kenapa anda membakar pejabat anda? Soalan terus macam ni minta korang jelaskan kenapa korang buat jenayah tu – sedangkan korang tak mengaku apa-apa lagi. Jadinya, ia mendedahkan korang dengan pertuduhan jenayah, maka korang tak diwajibkan menjawabnya. Hak untuk berdiam diri juga sebenarnya berkaitan dengan hak peguam. Bila korang dapatkan peguam, peguam akan nasihatkan korang tentang apa yang korang patut dan tak patut cakap, jadinya korang tak lah dapat masalah nanti. Macam yang selalu kita dengar dalam drama polis la – “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you”. Apa yang dapat difahami dari sini adalah: hak untuk berdiam diri ni diberikan kepada korang untuk melindungi diri dari disalahertikan sehingga korang dapat bercakap dengan peguam yang akan mengendalikan kes korang. Tapi masih ada masanya yang anda kena bercakap Kita tahu yang undang-undang Malaysia membenarkan korang untuk berdiam diri ketika korang ditahan ataupun masa dalam mahkamah. Korang boleh nampak peruntukan ni dalam Seksyen 112(2) Kanun Tatacara Jenayah dan juga dalam undang-undang lain seperti Seksyen 37A Akta Dadah Berbahaya 1952 serta Seksyen 75 Akta Keselamatan Dalam Negeri 1960. Tapi dalam keadaan tertentu hak ni bukan secara mutlak. Sebabnya, ada juga undang-undang tertentu yang secara jelas tak memberikan korang hak berdiam diri seperti Akta Kanak-Kanak 2001 dan Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009. Kalau korang ditahan di bawah akta-akta yang disebutkan ni – korang kena jawab sebarang soalan yang ditanya oleh pegawai polis atau hakim, walaupun ia boleh menjuruskan korang disabitkan bersalah. Perkara lain yang perlu dipertimbangkan lagi adalah korang mungkin dapat rugi juga kalau pilih untuk berdiam diri sepanjang penahanan dan perbicaraan. Walaupun korang tak boleh secara automatik dianggap bersalah sebab memilih untuk berdiam diri, tapi kalau korang tak mempertahankan diri, ada kebarangkalian yang lebih tinggi untuk korang disabitkan kesalahan, sebab korang tak sangkal sebarang pertuduhan. Kesemua Pendakwa Raya kena membuktikan kes terhadap korang dengan tiadanya keraguan munasabah (maknanya tak ada keraguan, 100% betul). Kalau dia boleh buat macam tu dan korang pula tak kata apa-apa untuk membela diri, besar kemungkinan yang korang akan disabitkan kesalahan. Jadinya, ingatlah selalu yang hak untuk berdiam diri tu sebenarnya untuk nak memastikan korang tak cakap benda yang salah kepada pihak berkuasa, sebab apa yang korang cakap tu mungkin boleh digunakan semula ke atas pertuduhan korang. Tapi bila perlu pada masanya, bercakaplah untuk mempertahankan diri korang."
"In Malaysia, can your boss fire you AFTER you give your resignation letter? It’s pretty common to hear stories about employees leaving companies. Now it’s not always due to a bad experience with the company. Some employees might be seeking a different environment or a change in career. So if you’re currently considering to leave your current company or you’ve already been offered a position at a different company, your first step will be to tender your resignation. The process is pretty simple—all you have to do is to formally inform your boss and serve your notice period. A notice period is basically a duration stated in your employment contract which allows both parties to give a heads up if they’re terminating the contract. Once you’ve given an official email or letter to your boss, your resignation is considered valid and effective. You don’t actually have to wait for an official reply from the company or your boss once you do so. [READ MORE: Is there a legal way to skip the notice period when you resign in Malaysia?] But what if your boss suddenly tells you that he’s firing you while you’re serving your notice period, and wants you to leave immediately? If the company compensates you, it’s fine Your employment contract will contain a clause that tells you how early of a notice you need to give before you resign. The Employment Act 1955 states this as such: “The length of such notice shall be the same for both employer and employee and shall be determined by a provision made in writing for such notice in the terms of the contract of service, or, in the absence of such provision in writing, shall not be less than— (a) four weeks’ notice if the employee has been so employed for less than two years on the date on which the notice is given;” So, observing the notice period is a legal requirement—with the minimum being 1 month. But take note, companies can increase notice periods based on their policies too. If you take a look at your employment contract, particularly under the header that says ‘termination’ or so, you’ll see something like this: “… termination by either party will require one (1) month written notice or payment of one (1) month salary in lieu of notice...” This means that either you or your employer can terminate your employment contract, but a notice must be served. Or else, the party that ends the contract must pay based on the duration of the notice period. For instance, if you’re required to serve 2 months of notice but want to leave early, you must pay the company 2 months of your salary before you leave. [READ MORE: In Malaysia, can you withdraw your resignation letter after submitting it?] But if your company fires you during your notice period, they must first have a valid reason for doing so. Companies have the right to terminate an employee due to reasons such as gross misconduct. The company must also compensate you for ending your contract (before you legally ended it), based on the termination clause in your employment contract. Now what if you actually didn’t do anything, and your boss fired you without giving you a valid reason? You have been ‘constructively’ dismissed! Constructive dismissal is a term used when an employee is forced to leave his job because your employer breached the terms of the employment contract. There aren’t any definitions stated in the law for constructive dismissal. However, a claim of constructive dismissal can be made, as stated under Section 20(1) of the Industrial Relations Act 1967. The Act basically states: “Where a workman...considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment; the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed.” The Act essentially tells us that an employee cannot be terminated without a valid reason. So if an employee has tendered his resignation and is currently serving his notice period—the employer can’t simply fire him, as this would be a breach of the employment contract. Now proving constructive dismissal isn’t as easy as you think it is. There are 2 main elements an employee must show in order to succeed in a constructive dismissal claim. You can learn more about how to file for constructive dismissal in our article linked below. [READ MORE - My boss just fired me for no reason, what can I do now?] If you do have to file a constructive dismissal claim, properly document incidents at your workplace, and keep in mind that you only have 60 days after you’ve been fired, to file a claim. Take the case to the Industrial Court Image from anneedwardstv.com If you’ve been fired while serving your notice period, and you think it’s unfair—you can bring the case to the Industrial Court. Section 30(5) of the Industrial Relations Act 1967 provides: “The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.” Basically, the court will take into account the welfare of employees who have been unfairly dismissed. But as we mentioned earlier, you have 60 days to file the complaint. You can check out how to do so, with this guide. If the court finds that you have been unfairly dismissed, you’re entitled to certain benefits. Employees who have been unfairly dismissed are entitled to claims stated under the Employment (Termination and Lay-off Benefits) Regulations 1980. However, some companies have their own policies and regulations on termination benefits. So, it would be best to check with your company first."
"4 things you didn't know require a police report in Malaysia When we talk about police reports, the first thing that comes to mind is that there’s been a serious problem, or that a crime has taken place. However, this isn’t always the case. In fact, police reports are also required for a whole lot of “non-crime” things, as you will find out later. Apart from being used in investigations, police reports are also needed to keep track of events that have happened between people—basically, they are records. Something that isn’t a crime or offence initially can also turn out to be one later, and this is why police reports are crucial. So here are some everyday things that require us to make a police report, even if it seems like it’s not necessary at first. 1. When you lose your identification documents This may sound like a no-brainer to some of you. But for the rest of you who didn’t already know, if you ever lose your MyKad, passport or other documents, you’re supposed to report how you lost it to PDRM before getting a new one from the respective Jabatans. The reasoning behind this makes a lot of sense: If your personal documents have been stolen, someone else can misuse them or pretend to be you. So it’s good to let the police know that your documents may have fallen into the wrong hands, and they will then start an investigation. For MyKads, a police report is required regardless of whether you yourself misplaced it, or it was stolen by someone. This was confirmed on JPN’s website: As for passports, the government made it compulsory in 2015 for a police report to be made if you have lost yours and need a new one. 2. When a road accident happens A lot of you may know this one as well. When one car hits another, the drivers will stop and exchange details to make the person responsible pay for the repairs. This is known as ‘settling’ the issue with the other person without involving the police. You might think that this is absolutely okay but in reality, it is actually somewhat illegal. There have been drivers who have ‘settled’ like this, and then the person who hit the car would make a false report against the other person, just to get some insurance money. There’s also the risk of someone promising to pay for repairs, but then going missing after that. This is why it’s actually a requirement under the law for people involved in an accident (all the parties) to report it to the nearest balai polis. Section 52(2) of the Road Transport Act 1987 says: “...the driver of each such motor vehicle, shall report the accident at the nearest police station as soon as reasonably practicable and in any case within twenty-four hours of such occurrence...” As you can see, the report also has to be made within 24 hours. You’re only allowed to make a report beyond that time frame if there was an emergency, eg. you were hospitalized due to the accident. [READ MORE: Can you still report an accident to the PDRM after 24 hours have passed?] 3. When a family member dies If a person dies at a hospital, there will be no post-mortem done on the body. This is because the cause of death will already be known to the doctors. The hospital will then provide the details of the death for a death certificate to be issued by Jabatan Pendaftaran Negara (JPN). But it’s a totally different case when a person dies at home. Even if they have been unwell for the longest time, a check will still have to be done to identify the real cause of death and to rule out foul play. This is where the police will need to investigate what exactly happened, and the body will then be sent to the hospital. So if unfortunately, a loved one dies at home, here’s what has to be done: don’t move the body call an ambulance make a police report once the police have verified all the details, go to JPN to get a death certificate and/or burial permit [READ MORE: What is an unnatural death and why does the PDRM get involved?] 4. When you want your tenant to pay for repairs If your tenant damages your home, you would naturally want them to pay for the repairs. If there’s a security deposit, you might want to use that to cover the charges. Now let’s say that the damage is pretty extensive, and that it’s going to cost a lot more than you think. In this case, you can ask the tenant to pay out of their own pocket because the deposit will not be enough. But you can’t just come up with a sum and ask your tenant to pay you. As much as the law gives you rights as a landlord, it also provides safeguards for tenants. So before you can quote a sum to your tenant, you need to take pictures of the damage as evidence, and then make a police report about the incident. This will ensure that your tenant has to only pay for the damage—nothing more, nothing less. When you have a police report, your tenant also can’t shift the blame on you for the damage to your house, as the report and photos would serve as proof. [READ MORE: If a tenant damages your property in Malaysia, here's what you can do] Although we’ve only listed 4 examples here, there are more things that police reports are needed for in Malaysia. To make reporting to PDRM easier, they’ve come up with an online reporting system. This isn’t a new feature, but it isn’t very widely known. However, do note that this system is only for things that aren’t crime-related and are mostly for missing items. If you have an emergency, head to the nearest police station immediately or dial 999."
"An Orang Asli tribe was cheated by a lawyer, who used their money to buy 57 apartments Imagine you were a millionaire. However, you’re promised that your money would be kept in a trust, and you can live off the interest. That’ll still be an okay deal, right? At least you won’t lose all the money buying expensive things, just because you can. But imagine, again, that the person who’s trusted to hold your money, not only gave you much less than promised. That person also bought apartments, which they rented out, and bought more apartments. And all of that using your money. This exact scenario is what happened to a group of Orang Asli in Johor, who were from the Jakun tribe. Their lawyer misused their trust fund money to buy 57 apartments. Thankfully, after an 11 year long court case, the Orang Asli have finally won their lawsuit against the lawyer. But the case didn’t just start 11 years ago. In fact... It started from a landmark decision in the 90s Back in the 1990s, the Orang Asli community in Linggiu Valley had their land acquired by the Johor state government. The land, which was around the Sungai Linggiu water catchment area, was used to build a dam to supply water to Singapore. This is quite common, as the government does have the rights to take your land. But the government can’t just take any land they want – it can only happen if it’s used for public projects. And if they do, the government must compensate you for the land. [READ MORE: The Malaysian government CAN legally take your land and property...under 3 conditions ] However, the Orang Asli community weren’t compensated for this. They had previously used the land to cultivate plants, and had now lost their livelihood because of it. A middleman, Hamzah Mohd Tahir, introduced a lawyer to the tok batin (village head), who agreed to help them seek compensation from the government. The lawyer was S Kanawagi from the legal firm Khana & Co. In 1995, they filed a lawsuit at the Johor Bahru High Court against the state government, on behalf of the Orang Asli. Their lawsuit, Adong Bin Kuwau & Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ, was a landmark decision for land compensation cases. Based on the Land Acquisition Act 1960 (LAA), the government must give compensation equal to the land’s market value. But the court decided to award the 52 plaintiffs RM26.5 million, which was twice the land’s market value, as well as an additional RM12 million of accumulated interest (from Nov 1994 - May 2000). This resulted in a total of RM38.5 million paid to the Orang Asli community. The judge explained why he gave them twice the usual sum. He reasoned that in usual cases where you only paid the market value: “...would involve deprivation of land use for a person for no special attachment to the land and upon which land he does not depend on for his livelihood...” Basically, he said that most people weren’t attached to the land, or depended on it for livelihood. So for this case, he considered these things when calculating the compensation for the Orang Asli: the Orang Asli had their heritage land taken they are deprived of their freedom to live and stay on the land their livelihood is taken away the next generation’s livelihood is also taken away Despite winning the case, things only got worse because... The Orang Asli were cheated by their lawyer From the RM38.5 million awarded, RM22 million were to be put in the Linggiu Valley Trust Fund. From that trust, RM900 will be paid each month to the Orang Asli. Their lawyer, S Kanawagi, and two tok batins would manage the trust fund. The balance, RM16.5 million, would be handed to the law firm that represented them. The firm would deduct all legal expenses, which was agreed to be RM500,000, then return the rest to the Orang Asli. But 9 months after that, the Orang Asli had only received a payout of RM2,500, and RM100 per month for 9 months. Only after they complained to their lawyer did they receive the promised monthly payment of RM900. There was still the question of the extra RM16 million minus legal fees, which was never returned to them. Turns out, the Orang Asli weren’t aware of the details of the court judgement. They did not know that S Kanawagi was given the money to cover legal fees, and that he had to return the balance to them. They only found out about it 4 years later, in 2004. Representatives from the Center for Orang Asli Concerns (COAC), who had went to the Orang Asli’s village, explained the full judgement to them. They tried to talk to the lawyer about their concerns, and had even made a police report. But the missing funds were never returned, nor did the lawyer explain what happened to it. Five years later, in 2009, they opened a case to get back their money from S Kanawagi. The lawyer bought 57 apartments with the trust fund money The case started in 2009 in Johor Bahru, and the first judgement was only given in 2016 in the Ipoh High Court, as the judge for the case was transferred there. It also took one appeal, and one failed appeal from the defendants, before the final judgement was given. First judgement - Johor Bahru/Ipoh High Court decision During the investigation into the misuse of money, they found out what happened to the RM16.5 million. The law firm, Khana & Co had paid itself RM16.5 million in legal fees, including two other lawyers and a foreign consultant. Money was also taken from the trust by S Kanawagi. He used it to buy 27 apartments which cost RM20.7 million. The apartments were then rented out, and the proceeds were then used to buy 30 more apartments. In 2016 at the Ipoh High Court, it was decided that S Kanawagi had misused the Orang Asli’s trust fund money. He was found liable along with his son K. Dinesh, two tok batins, and the legal firm Khana & Co. They were ordered to pay RM37 million to the Orang Asli tribe. The 57 apartments would also be handed over to the Linggiu Valley Trust Fund. Court of appeal S Kanawagi and the other defendants appealed the decision. Due to the high stakes of the case, S. Kanawagi had nearly 20 lawyers representing him in court, compared to 7 on the side of the Orang Asli. But the numbers did not matter. In 2019, the Court of Appeal decided, and it was not in his favour. They ruled that he and the other defendants were liable for misusing the funds. However, unlike the previous judgement, the court decided that the payment did not have to be RM37 million. The amount that had to be returned would first have to be audited and calculated, and that amount would then be returned to the Orang Asli. Final judgement - Federal Court Again, S Kanawagi and the other defendants appealed the decision, so they made an application for it to be heard at the Federal Court. However, the Federal Court decided that S Kanawagi’s appeal did not have enough legal merit to be heard. This means that the court thought there was nothing wrong with the previous judgement. So after 11 long years, in August 2020, the court made a final decision: the defendants were found to have misused the Orang Asli’s funds, and would need to pay the judgement sum of RM32 million, and the 57 apartments would be given to the Linggiu Valley Trust Fund. The Orang Asli won back their money Since 2019, the Orang Asli trust fund has been managed by RHB Trustees. Last year, the Orang Asli were paid RM30,000, and their monthly contribution was increased from RM900 to RM1,200. Lawyer G Ragumaren, who represented the Orang Asli, said that they will now take steps to recover the judgement sum, as well as the 57 apartments. The properties are now said to be valued between RM15 – RM 20 million. And in five years, the trust will finally expire. When that happens, the money will be distributed fully to the Orang Asli, hopefully this time without any missing funds turning into apartments. And the lawyer, S. Kanawagi? He has been barred from practicing law."
"Kerap panggil setiausaha 'sayang', bos di Sarawak ni kena pecat  [Click here for the English version] Boleh ke kita dipecat sebab panggil rakan sekerja ‘sayang’? Ada je yang cuma nak bergurau di tempat kerja, lebih-lebih lagi dalam ofis yang selalunya ceria je. Dan semua orang pun rasa tak kisah dan ketawa dengan gurauan tu. Tapi, macam mana pula kalau orang yang dipanggil sayang tu sebenarnya tak suka dan korang pula pulak buat tak kisah dah tetap panggilnya sayang? Kalau jadi macam tu, ia sebenarnya dah jatuh dalam kategori gangguan seksual. Sebabnya, apa yang kami dapat dari kes-kes mahkamah, gangguan seksual ni bukan je terhad pada sentuhan semata-mata. Banyak kali dipanggil ‘sayang’ Dalam kes ni, ia berlaku antara seorang bos dengan setiausahanya. Mungkin kita boleh mula dengan bosnya dulu. Logan adalah Superitenden Pembinaan, yang bekerja dengan Murphy Sarawak Oil. Dia dah bekerja dengan syarikat tu selama empat tahun. Bila kontraknya diperbaharui pada 2 Februari 2015, dia dah ditugaskan kepada kontraktor syarikatnya, Brooke Dockyard, di Kuching. Di sana, dia dapat seorang setiausaha, ‘RR’ (bukan nama sebenar). Boleh kata, dia tak ambil masa yang lama untuk ‘terlalu’ selesa dengan setiausahanya tu. Pada minggu-minggu awal lagi, Logan dah panggil RR ni ‘sayang’, walaupun RR cakap jangan panggilnya macam tu. Dia juga ada bagi mesej pada RR, macam ucap selamat pagi, termasuklah kata-kata dan gambar-gambar yang tak sesuai. Dalam dua mesej WhatsApp-nya pada 12 Februari, dia kata: “Sayang, tolong datang awal ke pejabat” – Logan Dan juga: “Terima kasih sayang. Selamat memandu. Saya tunggu nak tengok wajah senyuman sayang saya.” – Logan Benda ni bukan saja dibuat dalam perbualan peribadi. Masa mesyuarat dengan pekerja-pekerja lain pada awal Mac, dia ada umumkan RR yang duduk di sebelahnya sebagai sayangnya. RR rasa terganggu dan tak selesa dengan perkara tu, lebih-lebih lagi bila pekerja-pekerja lain mula usiknya dengan kata-kata Logan tu. Dalam mesyuarat sebulan lepas tu, Logan buat hal lagi bila beritahu pekerja-pekerja lain supaya jangan kacau RR, sebab kalau mereka buat macam tu – dia akan marah dan rasa cemburu. Dan keadaan semakin tak terkawal, bila... Dia buat lebih daripada panggilnya sayang Pada Februari, Logan mula buat banyak sentuhan. Sebelum pergi ke majlis First Steel Cutting, Logan ada minta supaya diambil gambarnya dengan RR. Masa bergambar tu, Logan letak tangannya di badan RR. Bila RR nak mengelak, Logan menepisnya dengan kata setiausaha sebelumnya selalu suka dipeluk. Dia juga nak mereka ‘salam’ setiap pagi. Tapi salam tu bukannya profesional sangat, sebab Logan nanti akan tetap pegang tangan RR dengan lama. Ada sekali, dia kata tangan RR kasar dan dia akan akan belikan losyen untuk buatnya lembut. Logan juga jadi pemurah sangat bila belikan RR hadiah macam minyak wangi dan losyen tangan (nak buatkan tangannya lembut), tapi ditolak oleh RR pada mulanya. Untuk kali seterusnya, RR tetap tak nak terima hadiah yang diberikan. Minyak wangi tu Logan bagi bila dia tetap nak RR ambilnya di lapangan terbang, walaupun ada pemandu. Bila ditolak, dia tinggalkan minyak wangi tu atas dashboard kereta. Hadiah ni mula nampak romantik bila dia bagi RR bunga masa Hari Kekasih. Seterusnya pada Mac, syarikat ada anjurkan makan malam team building. Sebelum pergi ke sana, Logan ada minta RR supaya ikutnya beli pakaian. Tapi pakaian tu bukan untuknya, sebaliknya baju baru untuk RR pakai masa makan malam tu nanti, sebab dia nak RR jadi orang yang paling cantik di sana. RR cuba tolak, tapi Logan guna pangkat dengan kata – dia bos dan RR kena ikut arahannya. RR berhenti dari syarikat Kalau korang dah baca dari awal, mesti korang perasan yang perkara-perkara ni jadi dari bulan Februari dan Mac 2015. Sebenarnya, ada sebab kenapa tempoh tu singkat: kerana memang dua bulan tu je RR sanggup bekerja dengan Logan sebelum dia ambil keputusan untuk berhenti kerja. Pada 30 Mac, mereka ada majlis makan malam team building di Damai Beach Resort. Logan tak dapat cari bilik hotelnya, dan bila dapat, ia bukan bilik yang dia nak. Disebabkan marah, dia hubungi RR dan tengkingnya dalam telefon. Dia lepas tu minta RR jumpanya di lobi hotel. Di sana, dia terus mengejek, dengan kata RR layannya macam anjing di depan kontraktor. Disebabkan hal tu, RR dah tak dapat tahan lagi. Esoknya, dia terus keluar dari mesyuarat team building. Hari seterusnya, dia hantar peletakkan jawatan kepada Logan melalui mesej. RR hanya hantar surat peletakkan jawatan rasminya kepada syarikat seminggu lepas tu. Dia beritahu mereka yang dia tak mampu hantar surat tu lebih awal sebab dia trauma dengan gangguan seksual yang dia hadapi. Bila ditanya kenapa dia tak buat aduan lebih awal, RR kata ini kerana Logan adalah orang atasannya, dan dia takut akan kehilangan kerja atau Logan mintanya letak jawatan. Syarikat utama, Murphy Oil lepas tu bertindak pantas dengan menghantar surat tunjuk sebab kepada Logan dua hari kemudian (Surat tunjuk sebab pada asasnya akan minta pekerja menjelaskan kenapa mereka tidak boleh berdisiplin). Sebulan lepas tu, syarikat adakan siasatan dalaman (DI) terhadap Logan atas empat tuduhan gangguan seksual. Mereka hanya buktikan satu… tapi tu pun dah mencukupi Dalam prosiding sisatan dalaman tu, Logan dah didakwa dengan empat tuduhan gangguan seksual, iaitu: Mengganggu RR secara lisan dengan memanggilnya sayang di khalayak umum, di depan kakitangan syarikat lain dan juga melalui mesej elektronik Mengganggunya secara fizikal dengan meletakkan tangan di sekitarnya Memberi perhatian yang tak diingini kepada RR dengan menawarkannya dan memberikannya hadiah dan mesej Menyalahgunakan kedudukannya dengan membuatkan RR bekerja di luar bidang kerja Menurut panel siasatan dalaman, tindakan-tindakan tak sesuai ni dah membuatkan RR rasa “tak selesa, terganggu, tertekan, berat hati, takut bekerja dan takut dengan apa Logan akan buat seterusnya.” Bagaimanapun, syarikat tak dapati Logan bersalah atas kesemua kesalahan ni. Mereka memutuskan yang tuduhan pertama - memanggil setiausahanya ‘sayang’ - sudah cukup untuk membuktikan Logan dah melakukan gangguan seksual terhadap RR. Ini kerana, dalam kod syarikat mereka, ada dinyatakan: “... terdapat tingkah laku tertentu yang tidak akan ditoleransi oleh syarikat. Ini termasuk tingkah seksual yang tidak diingini atau tingkah laku peribadi lain yang tidak sesuai.” – dipetik dari Kod Etika Murphy Oil. Disebabkan dasar sifar toleransi mereka, dua bulan lepas tu Logan dah dipecat. Namun, nampaknya Logan tak puas hati dengan keputusan tu dan bawa majikannya ke Mahkamah Perusahaan, dengan kata dia dah dipecat secara tidak adil. Mereka ada 40 muka surat bukti yang dia guna perkataan ‘sayang’ Masa di Mahkamah Perusahaan, dalam kes Loganathan Maniam lwn. Murphy Sarawak Oil Co Ltd [2020] 2 ILR 275, Logan mendakwa yang dia dah dipecat secara tak adil dan dia tak dapat berbicaraan yang adil ketika prosiding siatan dalaman. Untuk tengok sama ada dia memang dipecat secara tak adil, mahkamah kena teliti dua perkara: Sama ada Logan bersalah dalam empat pertuduhan salah laku Jika dia bersalah, sama ada salah laku itu cukup untuk membuatkannya dipecat Peliknya, bila disoal – dia tak menafikan yang dia ada panggil RR sayang. Tapi, dia ada kata yang dia cuma panggil sayang tu 3-4 kali je, dan dia tak ada niat jahat: sebab dia cuma anggap RR tu sebagai anak. Apa yang memalukan, perkara ni tak diterima mahkamah, sebab mahkamah ada hampir 40 muka surat dokumen yang mengandungi perbualan WhatsApp antara Logan dan RR. Di situ, ia menunjukkan Logan memanggil RR sayang hampir dalam setiap mesejnya. Ini adalah tambahan kepada akaun saksi mata yang mengesahkan Logan melakukan hal itu secara terbuka. Mahkamah juga kata, dalam Bahasa Melayu – perkataan ‘sayang’ adalah istilah kasih sayang, yang menggambarkan keakraban di luar persahabatan. Sebagai seorang lelaki, yang juga orang atasan RR, tindakannya tu tak dapat diterima. Bukan tu je, RR sendiri ada kata yang dia tak selesa bila dipanggil sayang, dan kata perkara tu memalukannya. Tentang hadiah pula, Logan menafikan yang dia ada niat salah bila bagi hadiah kepada RR. Bagaimanapun, mahkamah mendapati pemberian barang peribadi kepada orang bawah seperti minyak wangi dan bunga sebagai tak boleh diterima. Mahkamah juga buat keputusan yang syarikat ada bukti yang mencukupi bahawa wujudnya gangguan secara fizikal dan salah guna kedudukan oleh Logan. Kesalahan gangguan seksual terhadap setiausahanya RR juga dianggap cukup serius untuk dia dipecat. Oleh itu, syarikat tak buat sebarang kesalahan dalam keputusan memecatnya. Jadinya, Logan memang tak boleh dapat kerjanya balik. Ia bukan sentuhan fizikal semata-mata Seperti mana yang kita boleh lihat, gangguan seksual ni bukan berkait dengan sentuhan fizikal semata-mata. Berdasarkan Akta Kerja 1955, gangguan seksual adalah: “apa-apa kelakuan tidak diingini yang bersifat seksual, sama ada secara lisan bukan lisan, visual, isyarat, tindakan atau fizikal yang telah dilakukan kepada seseorang di mana perbuatan tersebut dianggap sebagai memalukan atau menyakitkan atau mengancam semasa dalam atau luar waktu pekerjaan. Kita mungkin terlepas pandang dengan gangguan atau bagi hadiah ni sebagai tak ada apa-apa kesalahan. Bagaimanapun, kes ni membuktikan yang kalau kata-kata cinta dan hadiah tu tak diingini, ia boleh dikira sebagai gangguan seksual. Jadinya, kalau korang rasa diganggu di tempat kerja, jangan ragu-ragu untuk laporkannya pada HR. Kami juga sebelum ni ada tulis cara macam mana nak buat, kalau korang rasa tak pasti apa nak buat selain dari menghubungi HR. [BACA LAGI: What can you do if you have been sexually harassed in Malaysia?]"
"Here's what Malaysian condo owners should know before renovating their unit So you finally bought your first house—a condo unit in the heart of the city. You have so many plans on how you want to furnish, paint and revamp it according to your taste. You’ve decided to extend the kitchen slightly and add another bathroom in the unit. Now this would require some extensive renovations. And so, you get started immediately! Halfway through the renovation works, you get a notice from the condo management, asking you to stop all renovation works at once and pay a hefty fine of RM10,000! Shocked and angry, you contact the condo management and they tell you that you have violated the renovation guidelines set by them. So this article is most definitely going to talk about whether you can do renovation works in a condo unit in Malaysia. But before we look into the laws, let’s briefly take a look at who has the authority on condos or any other strata property in Malaysia. There must be a management in strata properties If you live in an apartment, condo, flat, SoHo, SoVo, or gated community—you’re said to be living in a ‘strata property’. Under the Strata Management Act 2013 (""SMA 2013""), there are three types of management bodies that are responsible for maintaining your condo. The first kind of management body is the Joint Management Body (JMB). The JMB is a collaboration between the developer and the owners of the strata property. JMBs have to ensure that the apartment (or land if it is gated and guarded) and its common property is properly managed by keeping it in good repair. The JMB is also supposed to determine how much the maintenance charges and sinking funds would be and then collect it from you and the other owners. These duties are contained in section 21 of the SMA 2013. The second type is the Management Corporation (MC). The MC has similar duties and powers but is only formed once you have received the title to your property. The management corporation is comprised only of owners to the property, without the part of the developer anymore. The third is known as the sub-Management Corporation. The sub-MC comes into play when there is a need for separate management. An example of when there is separate management is when there are both commercial and residential properties or when there are limited common properties. The sub-MC, subject to any restrictions from the MC, has the same duties and powers as the MC. [READ MORE: Can condo managements in Malaysia be sued for letting your condo become run down?] The management bodies are legally allowed to carry out their duties, when it comes to maintaining the property. Section 21 (1) of the Strata Management Act 2013 states the management’s responsibilities. Here’s one of it: “(a) to properly maintain and manage the building or land intended for subdivision into parcels and the common property, and keep it in a state of good and serviceable repair So it’s pretty much the law that allows the management body to carry out their duties, and ensure the owner of the property does not violate the laws set under the Act. Which brings us to the main question of this article, are renovation works allowed in strata properties? It depends on what kind of renovation work is done As we mentioned earlier, strata properties have management bodies that handle and take care of the property. So if you do plan on doing renovation work in your condo unit, you’ll have to get a letter of authorization from your property management first. The management has the right to reject your application if it doesn’t meet the guidelines set. The rules are rather subjective as it depends on what kind of regulations your management has set. In most places, you’ll have to pay a deposit to the management which will then be refunded after the renovation— so long as no part of the property was damaged in the process. Now there are also certain things the owner can’t do which are stated in the law. Part 7 of the Third Schedule of Strata Management (Maintenance and Management) Regulations 2015 put down the restrictions for renovation works and we’ve listed some of them here: (1) Unless prior approval in writing has been obtained from the appropriate authority and the management corporation, a proprietor shall not --- (a) construct another floor level to his parcel (e.g. to split the level of any portion of the existing floor in the parcel by adding platforms); (b) relocate any external door or window of his parcel; (c) remove or make changes to any building safety feature in his parcel and notwithstanding such approvals, the proprietor shall indemnify and keep indemnify the management corporation against any liability which may be incurred of suffered as a result of such removal; (d) shift any plumbing and sewerage system in a parcel; (e) change or upgrade the whole electrical system in a parcel; or (f) illegally connect or tap electricity supply. So the owner (proprietor) must first get permission from the management body, and comply with the rules set by the management when renovating a condo/apartment. The restrictions listed above should also be read through before starting any renovation work. Assuming you’ve already started renovating your condo unit before reading this article, and the condo management has now sent you a letter asking you to pay a fine—take note that it is legal for them to do so. Section 7 under the 2015 Regulations gives the management body powers to do so: “The management corporation may by a resolution at a general meeting impose a fine of such amount as shall be determined by the general meeting against any person who is in breach of any of these by-laws or any additional by-laws made under the Act.” So the management body can fine you for renovating without a permit, and the money from the fine must be deposited into the maintenance account of your condo/apartment. We also have to highlight something: Not all home renovations actually require a permit. It depends on what type of property you own and how much you want to renovate it. Read the article below to know more: [READ MORE: Certain home renovations in Malaysia may not require permits. Here's why]"
"Keluarga ni kena saman sebab pasang CCTV menghala ke rumah jiran  [Click here for the English version] Kalau korang pergi ke mana-mana tempat awam, korang mesti akan perasan dengan kamera litar tertutup atau CCTV di kawasan tersebut. Sebenarnya, sekarang ni di kawasan rumah pun dah ada orang pasang CCTV untuk keselamatan. Dengan adanya CCTV ni, dapatlah mereka awasi kawasan rumah dari apa-apa aktiviti yang mencurigakan. Kalau ada rompakan contohnya, mudahlah nak kenal pasti orang yang pecah masuk rumah tu. Namun begitu, walaupun ada CCTV ni boleh dianggap baik untuk kita – ia juga sebenarnya kadang-kadang boleh dianggap sebagai ancaman privasi, terutamanya bila ia merakam orang lain. Dengan kata lain, korang boleh dapat masalah kalau pasang CCTV dalam hartanah korang dan ia mula mengganggu privasi orang lain. Malah, ada kes seorang ni kena saman dengan jiran, sebab pasang CCTV di luar rumah. Tapi sebelum kami bercerita lebih lanjut tentang kes tu, jom kita tengok dulu undang-undang privasi di Malaysia, yang sebenarnya... Tak ada undang-undang privasi di Malaysia Di bawah Perlembagaan Persekutuan (undang-undang tertinggi negara ni) kita akan nampak hak-hak yang setiap rakyat Malaysia dapat. Ada di antaranya tentang hak kebebasan, hak mendapat kerakyatan dan sebagainya. Bagaimanapun, tak ada apa yang dikatakan sebagai hak mendapat privasi. Akan tetapi, walaupun tak ada undang-undang khusus tentang privasi ni, tu tak bermakna yang kita tak ada hak privasi langsung di Malaysia. Sebabnya, ada je undang-undang yang bagi kita hak tertentu untuk mendapat privasi. Contohnya macam Akta Perlindungan Data Peribadi 2010 yang menghalang perniagaan dan syarikat dari berkongsi maklumat pelanggan mereka dengan pihak ketiga (nanti kami jelaskan). Di samping tu, undang-undang lain yang melindungi privasi adalah tort kacau ganggu persendirian (private nuisance). Kacau ganggu ni jadi bila ada orang dalam kejiranan kita tu buat sesuatu yang mengganggu keamanan dan menjadikan kita rasa tak selesa untuk tinggal di hartanah kita sendiri. Maknanya, di bawah tort ni, pemilik rumah boleh saman jiran kalau mereka buat kacau ganggu. Kembali pada isu CCTV tadi, sebenarnya ia juga boleh dianggap melanggar privasi jiran dan dikira sebagai kacau ganggu. Dan hal inilah yang jadi dalam kes Lew Cher Phow & Ors v Pua Yong Yong & Anor [2011], di mana… Dia saman jiran sebab pasang CCTV Sebenarnya, kes ni melibatkan dua keluarga di Johor yang rumah mereka betul-betul bersebelahan. Dua jiran ni, Lew dan Pua dikatakan ada banyak masalah, sampaikan tak bertegur sapa antara satu sama lain. Keadaan bertambah buruk bila Pua pasang beberapa kamera di kawasan sekitar rumahnya dan ada satu yang menghala terus ke arah rumah Lew. Pada tahun 2009, Lew ada mohon di mahkamah supaya dikeluarkan perintah injunksi terhadap Pua. Injunksi ni adalah perintah daripada mahkamah untuk menghalang seseorang daripada melakukan sesuatu. Jadinya, kalau perintah ni dikeluarkan – Pua kenalah berhenti dari guna kamera tertentu. Tapi masa tu, mahkamah tolak permohonan tersebut, dengan kata hak untuk privasi tak diakui di Malaysia. Tapi akhirnya, kes ni dibicarakan di mahkamah pada tahun 2011. Di mahkamah, Lew mendakwa privasi mereka sekeluarga dah dilanggar, kerana kamera tu mengawasi mereka 24 jam, 7 hari seminggu. Malah, Lew juga ada kata disebabkan kamera tu: mereka kena kunci pintu sepanjang masa ia seterusnya menyebabkan mereka selalu jatuh sakit sebab pengudaraan yang lemah mereka kena pasang zink di sepanjang dinding untuk halang kamera (tapi tak berkesan sangat) mereka alami trauma mental dan pelajaran anak-anaknya terjejas Dia juga kata yang dia dah buat dua laporan polis, tapi jirannya tu masih tak turunkan kemera. Oleh itu, disebabkan segala kesulitan tersebut, dia minta Pua bayar RM500,000 sebagai pampasan. Hakim dalam kes ni kemudiannya kata tak ada bukti yang Lew dan keluarganya terjejas teruk disebabkan CTTV Pua tu. Dakwaan mereka mengalamani masalah kesihatan dan trauma pun tak berapa kuat. Bagaimanapun, hakim ada kata yang kamera tu dah melanggar privasi, terutamanya bila ia menghala tepat ke arah rumah mereka dan jiran pula boleh tengok mereka 24x7. Dia yakin yang kamera tu sengaja diletakkan di situ untuk mengintip mereka, sebab dua keluarga ni memang ada masalah antara satu sama lain. Dia juga kata: ""Kenyataan bahawa hak untuk privasi tidak diperuntukkan secara khusus tidak menghalang Mahkamah untuk menyatakan bahawa hak tersebut ada. Privasi diakui sebagai hak asasi manusia di peringkat antarabangsa.” Jadinya, walaupun mahkamah tak bagi pampasan RM500,000 tu, Pua diperintahkan untuk turunkan kamera dan dilarang sama sekali pasang kamera yang menghala ke arah rumah Lew tu. [BACA LAGI: Anda boleh saman jiran, kalau mereka buat 5 perkara menyakitkan hati ni] Tapi, macam mana pula dengan kamera di tempat awam Sebenarnya, hakim dalam kes ni memang buat perbezaan antara tempat persendirian dan awam/separa persendirian macam pusat membeli belah. Dia kata: “Dalam suasana separa persendirian seperti pusat membeli-belah, orang ramai melepaskan tuntutannya untuk tidak diawasi sebagai imbalan atas peningkatan keselamatan ketika berada di lokasi tersebut. Dalam erti kata itu, sekurang-kurangnya terdapat unsur pilihan individu.” - Hakim Vernon Ong Dengan kata lain, sesiapa yang berada di kawasan awam akan sedar yang rakaman tu dilakukan untuk menjaga keselamatan mereka sendiri. Tapi di tempat persendirian seperti rumah, kamera yang menghala ke rumah jiran berbeza sebab ia akan memerhatikan jiran sepanjang masa dan mereka tak dapat lepas darinya. Jadinya, korang tak boleh saman perniagaan kerana kacau ganggu persendirian sebab pasang CCTV dalam premis. Namun, walaupun perniagaan boleh merakam korang yang berada di premis, mereka tak boleh kongsikan rakaman tu sesuka hati. Tak kisahlah kalau korang disyaki mencuri barang di premis mereka sekalipun, mereka tetap tak boleh paparkan wajah korang di media sosial. Kalau ada jenayah yang jadi, mereka sepatutnya buat laporan polis dulu. Nanti, PDRM akan periksa rakaman, dan yang terbaiknya hanya selepas dapat kebenaran dari polis – barulah pemilik boleh kongsikan gambar tu kepada awam. Seperti yang dikatakan di bawah Akta Perlindungan Data Peribadi 2010, perniagaan/syarikat tak dibenarkan untuk berkongsi apa saja data pelanggan kepada pihak di luar perniagaan. Seksyen 4 Akta menyatakan, ‘data’ merangkumi apa sahaja maklumat seperti nama, butiran bil dan malah, rakaman CCTV yang ada korang dalamnya. Hal ni juga ada dikatakan oleh Timbalan Menteri Komunikasi dan Multimedia, Eddin Syazlee Shith: ""Segala rakaman video, termasuk dari kamera litar tertutup (CCTV) di tempat awam atau persendirian, tertakluk di bawah Akta Perlindungan Data Peribadi"" - Dato’ Eddin Syazlee Shith, dipetik dari The Star Bagaimanapun, ia hanya terpakai kepada perniagaan yang berdaftar dengan Jabatan Perlindungan Data Peribadi. Perniagaan yang didaftarkan dengan jabatan ni dan masih secara terbuka berkongsi rakaman CCTV pelanggan akan dianggap melakukan kesalahan dan boleh menyebabkan mereka didenda atau dipenjara."
"A Malaysian girl was denied citizenship because she was born at home While most of us were very likely born in hospitals, it’s not uncommon for babies in Malaysia to also be born at home. Regardless of where a baby is born, you would think that as long as they are born in Malaysia to at least one Malaysian parent, they would naturally get Malaysian citizenship. But as we’re about to find out today, this isn’t always the case. This story is of Karthiyani, a girl who was born here to Malaysian parents, but was still denied citizenship. Karthiyani’s story, though, is just one of many children who have not gotten Malaysian citizenship despite being born in Malaysia. We previously wrote an article of a 6 year old who sued the government because he was not given citizenship, when his birth father and adoptive parents all had Malaysian citizenship. The facts of that case is different from the one we’re looking at today, but essentially they say the same thing: just because a child is born in Malaysia, it doesn’t mean they are automatically given citizenship. JPN needed more proof that she was born here Karthiyani comes from a big family, as she is the 8th of 11 children. Unlike her siblings who were all born in a hospital, she was the only born at home. According to Latheefa Koya— the lawyer who later took up this case—Karthiyani’s mother couldn’t make it to the hospital on time, and that’s why she was born at home. She was born in 2010, and on the same day she was born, she and her mother were taken to Hospital Kuala Lumpur (HKL). They were admitted there for 3 days, just to make sure everything was alright with the mother and child. When they were discharged from the hospital, HKL gave them a letter verifying that the baby was indeed born at home and was later brought to the hospital. Karthiyani’s parents also lodged a police report to confirm her birth at home. Together with the letter from HKL and the police report, they made their way to a Jabatan Pendaftaran Negara (JPN) branch to register Karthiyani’s birth. As you already know, JPN rejected the application then. But the reason was that they couldn’t verify that she was born at home. In fact, it was also said that they weren’t sure where Karthiyani had come from, as she wasn’t born at a hospital. She got her citizenship 10 years later Because Karthiyani was not given citizenship at that point, she did not get a birth certificate. Not having a birth certificate or a MyKad would prevent a person from doing a lot of things, as they would be ‘undocumented’. So for Karthiyani, she could not go to school when she turned 7—which was in 2017. In 2018, Karthiyani’s family made a new application to JPN. This time, JPN didn’t reject it but they asked for more proof of her birth, such as extra documentation and witnesses. In 2019, JPN was more specific with the proof that they needed—the letter that HKL had initially given, as well as 5 witnesses. These 5 witnesses were Karthiyani’s mother, her neighbours, as well as Mr. Shanmugam, the president of an NGO known as Malaysian Tamilan Today. This NGO had also actively fought for Karthiyani’s case. Unfortunately, Karthiyani’s father actually passed away during this time. While these witnesses were interviewed by JPN in December 2019, Karthiyani herself was also interviewed by them a month prior to that. Things were finally looking good for Karthiyani. After the interview sessions at the end of 2019, Karthiyani’s plight came to an end when JPN finally accepted the evidence given. On August 5th 2020, JPN issued a birth certificate as well as a MyKid (MyKad for kids, basically) to Karthiyani. This meant that Karthiyani would finally be able to go to school with her siblings and live like a normal Malaysian. Now this story might have made you ask... How does one actually get Malaysian citizenship? There are just two main ways to get citizenship: registration naturalisation Citizenship by registration means the child fulfills the legal requirements under the law to become a citizen, and so the only thing is left is for the parents to register the birth with JPN. On the other hand, citizenship by naturalisation is usually given to someone who has lived in Malaysia for a certain amount of years and fulfills the criteria set by the government. Once they receive Malaysian citizenship, any citizenship they have in other countries will be cancelled, as Malaysia doesn’t recognise dual citizenship. [READ MORE: 4 ways Malaysians can permanently lose their citizenship] We won’t go into citizenship laws in detail and list every single requirement/criteria needed, as these are complex. But if you’re interested to know more, you can find all of these in Articles 14-31 of the Federal Constitution. So in Karthiyani’s case, she would naturally have qualified for citizenship by registration. But as we know, this wasn’t the case. This doesn’t mean that every child born at home will not get a birth certificate easily. It’s just that for Karthiyani, the authorities needed wanted even more proof of where she was born."
"In Malaysia, insulting your company on social media can get you fired We’ve all complained about our company before. We probably did it in a rant through WhatsApp, or in person over drinks. There are also a few who would vent their frustrations on social media such as Facebook or Instagram. We might think that it’s just a harmless rant, and just a way for us to let off steam without getting into trouble. But as we’ll find out, passive-aggressive comments on Facebook won’t just get you into trouble – as this case illustrates, they can actually get you fired. He claimed his company played favourites An employee was fired after he complained on Facebook about his colleague, who he claimed was favoured by the company. This is what happened in the case of Kamal Rafidi Mohd Zakaria lwn Alam Flora Sdn Bhd [2019] 2 LNS 2219. The employee, Kamal, was dismissed for making a defamatory Facebook post against his colleague. However, his comments also indirectly defamed his company by claiming they favoured his colleague, which was how he got into trouble. He made the comments using a Facebook profile with the alias “Kent Zak.” In the post, Kamal uploaded a picture of a Certificate of Achievement from SWCorp, for the district of Rompin, with the following caption: “Buat hal msh dimuliakan...kerana di payung oleh exco…” (Translation by Asklegal: He caused problems, yet he is still honoured...because he’s protected by the executive committee) The recipient’s name on the certificate of achievement was blacked out. However, it wasn’t hard to figure out who he was referring to—for the district of Rompin, there was only one recipient that year. His company, Alam Flora, started an investigation into the post after receiving a complaint about it from the certificate recipient. They found out that Kamal was behind the post, and did a domestic inquiry (DI) into it. The DI panel charged Kamal with three counts of misconduct: tarnishing their company’s reputation displaying immoral behaviour spreading malicious rumours. These three misconducts were a serious breach of their company’s standards of procedure (SOP). Kamal was found guilty of all three misconducts, and was subsequently fired. He didn’t agree with their decision and brought his employer to court, claiming that he was unfairly dismissed. He only made some comments on Facebook. Why should he be fired? Well, as it turns out… It’s not what you say, it’s how you say it There, the court had to determine whether his Facebook comments were defamatory. In his defense, Kamal argued that he made a fair comment, and that it wasn’t defamatory. He also said that he didn’t say anything that could lower the company’s reputation, and there was no damaging or threatening words in the comment. However, to determine whether a statement is defamatory or not, is not done by understanding the phrase literally. Rather, it’s done by seeing what a reasonable person would think the statement means. This was affirmed in the case of Tun Datuk Patinggi Haji Abdul-Rahman Ya’kub v Bre Sdn Bhd [1996] 1 MLJ 393. The judge stated: “...it is not confined to strict literal meaning of the words but extends to any reference or implication from which persons can reasonably draw.” So the statement doesn’t literally have to say, “He’s a bad person.” It’s enough if the statement implies “He is a bad person.” This is why the judge decided that the comment was defamatory, as it implied that: The certificate recipient shouldn’t have been given the award, and he’s an irresponsible person who lacks discipline The company management (exco) played favourites, and protected the recipient despite his misbehaviours The certificate given by SWCorp lacked credibility SWCorp awarded the certificate to someone with questionable integrity, because he’s protected by the exco So it’s not what you say, it’s what people think you mean. But don’t we have freedom of speech??? This was actually one of the points in the case—that he had the right to free speech. And this is true, we Malaysians have the right to free speech. This is stated in Article 10 of the Federal Constitution: a.) every citizen has the right to freedom of speech and expression; The court did agree that Malaysian citizens do have that right. However, they said that freedom of speech is not an absolute right. You can’t abuse your right to defame any persons or groups. The court cited their reasoning from a previous case, Jeyaretnam Joshua Benjamin v. Lee Kuan Yew & Anor [1992] 2 SLR 310: Freedom of speech is not a license to defame people. It is subject to legal restrictions. An absolute or unrestricted right to free speech would result in persons recklessly maligning others with impunity, and the exercise of such right would do the public more harm than good. Every person has a right to reputation and that right ought to be protected by law. So we do have the right to freedom of speech. However, it doesn’t mean we can say anything we want about anyone. If we did, it opens the door for people to defame others. Which is unfair, because you have a right to not have your reputation tarnished by someone’s baseless claims. And your right to a reputation, should be protected by the law. As we can see, cryptic messages on social media could get you fired, simply because it’s not what you say, but what you mean. So if you do feel that your company has been unfair to you, it’s best to bring up to your superior or human resources."
"Can Malaysian courts charge a person TWICE for the same crime? Malaysians are no strangers to hearing news about politicians being arrested or charged with crimes. In the past 2 weeks alone, we’ve seen the former Prime Minister Najib Razak and former Finance Minister Lim Guan Eng, brought to court for several offences. Since Lim Guan Eng’s arrest and sentencing is more recent—and a lot of controversies have come up, we’ll be looking at one particular aspect of his case for this article. Under Malaysian laws, you can’t be charged for the same crime...TWICE. This is called a double jeopardy. Guan Eng was charged previously for corruption involving the Penang undersea tunnel project, and the Jalan Pinhorn bungalow. So why exactly is he being charged now? Guan Eng has several charges against him In order to understand whether or not he can be charged for the same crime twice, we need to look at what he’s been currently charged with. Among the things Guan Eng has been charged with include gratification (obtaining an interest) using his position as the former Chief Minister of Penang. Some of the corruption charges he faced involved: A foreign worker’s dorm project linked to his wife’s business associate Using his position to help a company secure the Penang undersea tunnel project Receiving RM3.3mil to help the company secure the tunnel project He was charged under Section 23(1) of the Malaysian Anti-Corruption Commission (MACC) Act 2009. If found guilty, he would face a jail sentence up to 20 years and a fine not less than five times the value of the gratification, or RM10,000. But, he pleaded not guilty to these charges. It didn’t just stop there, as a Minister from the Prime Minister’s department had recently stated in Parliament that MACC will look into another case involving Guan Eng’s bungalow purchase, if new evidences arise. Now as we mentioned earlier, a person cannot be charged for the same crime twice as the law doesn’t give room for that. Once the court has decided on your case, Article 7(2) of the Federal Constitution takes effect, which states: “(2) A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted.” This is pretty much a basic right given to all citizens, and it doesn’t matter if you’re guilty or innocent. So long as the court has decided on your case, you can’t be charged for the same crime again. However, there are certain factors that can reopen a case although a decision has been made. The case can be investigated if the facts differ If you read what we quoted above under Article 7(2), you’d see the exception as to when a case can be heard again. The exception here is, if a higher court thinks that the decision made was wrong and quashes it, the previous decision is cancelled. This would then lead to a retrial, and the person can be charged or acquitted for the same crime again. But that isn’t the only circumstance where a person can be charged again. For instance, if the facts of the case the second time around are different from the first charge—the second charge will be valid. In Jamali bin Adnan v PP the person charged (Jamali) was sentenced for an armed robbery with 2 revolvers under the Internal Security Act 1960. He was later charged again under the same Act for having bullets as well. The court here found that the essential ingredients (the points) of both the offences were not the same. This made the second charge against Jamali, which was being in possession of the bullets, valid. He was charged again, despite it being from one event. So for the charges involving Guan Eng, his lawyer Ramkarpal argued that his client cannot be charged again for the same crime, or this would go against Article 7(2) of the Federal Constitution. However, if Guan Eng is charged under a different point in the MACC Act but the offence still falls under the same Act, then Article 7(2) won’t apply here—and he can be charged for the crime again. At the time of writing, he has been charged for the Penang undersea tunnel project and the foreign worker’s dorm project. The lawyer representing his wife’s business partner claims that the charges made under the foreign worker’s dorm project formed a double jeopardy. The prosecution team however claims that the facts of the case are different this time around. So for now, we can’t say much about the case as it’s still ongoing. Perhaps it’s best to just wait and see what both parties will do in the upcoming trial."
"4 cara yang boleh melucutkan kerakyatan seseorang secara kekal [Click here for the English version] Kalau korang orang Malaysia, korang mesti akan ada dua dokumen penting ni untuk membuktikan kewarganegaraan korang tu. Ia adalah Kad Pengenalan (MyKad) dan pasport Malaysia. Sebenarnya, undang-unang kewarganegaraan di Malaysia ni agak kompleks dan luas, di mana korang boleh baca semuanya dalam Perlembagaan Persekutuan (undang-undang tertinggi negara). Disebabkan sifatnya yang kompleks tu, maka kami kali ni akan bincangkan tentang macam mana seseorang rakyat Malaysia tu boleh hilang taraf kerakyatannya. Sebelum kita bincang tu dengan lebih lanjut, kita kena tahu dulu yang ada dua cara untuk jadi rakyat Malaysia: kelahiran/pendaftaran – apabila seseorang tu dilahirkan oleh warganegara Malaysia dan pendaftaran kelahiran ibu bapanya tu di sini naturalisasi – seseorang bukan warganegara dari kelahiran, tapi menjadi warganegara selepas memenuhi kriteria yang ditetapkan oleh kerajaan Namun begitu, peruntukan untuk melucutkan taraf warganegara tak bergantung pada cara korang terima kewarganegaraan. Mungkin ada di antara kita yang anggap dilucutkan kerakyatan ni agak sukar nak berlaku. Tapi, kalau ia berlaku juga, ini caranya di bawah peruntukan undang-undang Malaysia. 1. Anda melepaskannya dengan sendiri Sebelum kita tengok macam mana kerajaan menarik balik kerakyatan seseorang, jom kita tengok macam mana rakyat sendiri yang melepaskan kewarganegaran mereka. Berdasarkan artikel yang diterbitkan oleh Cilisos, dianggarkan hampir 5000 rakyat Malaysia memilih untuk melepaskan kerakyatan mereka setiap tahun. Perkara ni sebenarnya dibenarkan di bawah Artikel 23, Perlembagaan Persekutuan yang menyatakan: (1) Mana-mana warganegara yang berumur dua puluh satu tahun atau lebih dan yang sempurna akal yang juga seorang warganegara negara lain atau yang hampir menjadi seorang warganegara negara lain boleh melepaskan kewarganegaraannya bagi Persekutuan melalui akuan yang didaftarkan oleh Kerajaan Persekutuan, dan hendaklah sesudah itu terhenti menjadi warganegara. Jadinya, seperti mana yang kita nampak – peruntukan ni sebenarnya agak terlalu berterus terang je. Tapi, dalam laman web Jabatan Pendaftaran Negara (JPN), ada dinyatakan bersama dengan peruntukan ni – senarai dokumen yang korang kena hantar kalau nak batalkan kerakyatan, boleh baca di sini. Ia juga termasuklah borang permohonan untuk melepaskan kerakyatan – yang dikenali sebagai Borang K. Korang juga kena bayar yuran RM10 bila hantar permohonan tu. Seperti mana yang dinyatakan di atas, salah satu syarat untuk melepaskan kerakyatan tu adalah korang mesti dah dapat kerakyatan negara lain atau nak jadi warganegara negara lain. Benda ni masuk akal jugalah sebab kalau korang lepaskan kerakyatan macam tu je tanpa ada kerakyataan lain – korang takde kerakyatan langsung la kan? Dengan kata lain, korang tak ada kebebasan untuk tinggal di mana-mana negara. Tapi, macam mana pula kalau korang memang nak simpan kerakyatan Malaysia dan nak juga kerakyatan baru? Sebenarnya, perkara ni tak dibenarkan sama sekali, sebab… 2. Kerakyatan akan dilucutkan kalau anda ada kerakyatan negara lain Malaysia adalah salah sebuah negara yang tak mengiktiraf dwi-kerakyatan. Maknanya, korang tak boleh jadi rakyat Malaysia, tapi dalam masa sama jadi rakyat negara lain… walaupun negara lain tu membenarkannya. Dalam keadaan begini, kerajaan Malaysia dibenarkan untuk membatalkan kerakyatan korang, kalau korang ada kerakyatan negara lain. Masa tu, korang akan diberikan dua pilihan sama ada nakkan kerakyatan Malaysia atau kerakyatan negara lain. Kalau korang gagal buat pilihan, Artikel 24, Perlembagaan Persekutuan menyatakan: (1) Jika Kerajaan Persekutuan berpuas hati bahawa mana-mana warganegara telah memperoleh kewarganegaraan mana-mana negara di luar Persekutuan melalui pendaftaran, penaturalisasian atau perbuatan sukarela dan formal yang lain (selain perkahwinan), maka Kerajaan Persekutuan boleh melalui perintah melucutkan kewarganegaraan orang itu. (2) Jika Kerajaan Persekutuan berpuas hati bahawa mana-mana warganegara telah menuntut dan menggunakan dengan sukarela di mana-mana negara di luar Persekutuan apa-apa hak yang terdapat untuknya di bawah undang-undang negara itu, iaitu hak-hak yang diberikan secara khusus kepada warganegara negara itu, maka Kerajaan Persekutuan boleh melalui perintah melucutkan kewarganegaraan orang itu. Bahagian pertama undang-undang di atas secara jelas mengesahkan yang mempunyai kerakyatan kedua di luar Malaysia boleh membuatkan kerakyatan seseorang tu dibatalkan. Bahagian kedua pula menyatakan, mana-mana orang Malaysia yang tinggal di negara lain tak boleh menggunakan hak-hak yang khusus untuk rakyat negara tu saja. Kalau mereka buat juga, mereka boleh hilang kewarganegaraan Malaysia. Ini kerana, menggunakan hak-hak yang hanya khusus kepada rakyat sesebuah negara, boleh membuatkan seseorang tu dianggap warganegara negara berkenaan. Fasal 3A dalam Artikel 24 memberikan contoh: Tanpa menjejaskan keluasan Fasal (2), penggunaan hak undi dalam mana-mana pemilihan politik di sesuatu tempat di luar Persekutuan hendaklah disifatkan sebagai penuntutan dan penggunaan yang sukarela suatu hak yang terdapat di bawah undang-undang tempat itu; Jadinya, dengan kata lain – mengundi dalam pilihan raya di negara lain juga boleh dianggap sebagai mengambil kewarganegaraan negara lain, kerana perkara macam tu hanya dikhaskan untuk rakyat negara tu saja. Tapi perlu diingatkan yang orang Malaysia masih dibenarkan untuk ada status penduduk tetap (PR) di negara lain. Ini kerana, PR tak memberikan korang kerakyatan dalam sesebuah negara – sebab ia hanya membenarkan korang tinggal di sana secara tetap. 3. Anda tak setia kepada negara ‘Tak setia’ boleh membawa banyak maksud, tapi dalam konteks ni – ia bermaksud yang korang dah menentang kepentingan negara. Artikel 25 Perlembagaan Persekutuan, menyenaraikan contoh-contoh perkara ni. Panjang juga senarainya, jadi kami akan cuba ringkaskan untuk korang: Korang dah melakukan atau bercakap sesuatu yang dianggap tak taat atau tak setia kepada negara Kalau Malaysia berperang dengan negara lain, dan korang mengkhianati negara dengan secara rahsia memberikan maklumat kepada negara lain Dalam tempoh 5 tahun selepas mendapat kerakyatan, korang dah dihukum penjara di negara lain lebih dari 12 bulan, atau didenda lebih dari RM5,000 (atau setara dengan mata wang negara tu)… dan korang tak diberikan pengampunan atas kesalahan tersebut Korang dapat jawatan kerajaan atau berkhidmat dengan negara lain tanpa mendapat keizinan daripada kerajaan Malaysia, atau apa-apa jawatan yang memerlukan bersumpah ikrar dengan negara lain Korang bermastautin di negara lain secara terus-menerus selama 5 tahun atau lebih tanpa pengetahuan kerajaan Malaysia, dan tak berada di sana kerana urusan kerajaan Malaysia dan tak mendaftar dengan konsulat Malaysia untuk mengekalkan kewarganegaraan Menjadi tak setia kepada negara mungkin boleh dianggap wajar untuk kerajaan melucutkan kerakyatan. Tapi, macam mana pula kalau korang tak pernah buat apa-apa kesalahan dan kerakyatan korang dilucutkan disebabkan kesilapan orang lain? Percaya atau tak, hal begini juga boleh jadi salah satu sebab kerajaan melucutkan kerakyatan korang. 4. Anda secara 'tidak sengaja' diberikan kerakyatan …. ataupun korang dapatkannya melalui penipuan. Walaupun dua keadaan ni berbeza, tapi kedua-duanya jatuh dalam peruntukan Artikel 26, Perlembagaan Persekutun di mana: (1) Kerajaan Persekutuan boleh melalui perintah melucutkan kewarganegaraan mana-mana warganegara yang menjadi warganegara melalui pendaftaran atau melalui penaturalisasian jika berpuas hati bahawa pendaftaran atau perakuan naturalisasi itu – (a) telah didapati dengan cara fraud, representasi palsu atau penyembunyian apa-apa fakta material; atau (b) telah dibuat atau diberikan dengan silap. Kalau korang tertanya-tanya macam mana pula boleh ada yang diberi kerakyatan secara tak sengaja, ia selalunya jadi disebabkan kesilapan perkeranian dan dokumentasi. Ada kes di mana seorang wanita ni dah diberikan kewarganegaraan pada tahun 1970-an tapi ditarik balik pada tahun 1980-an kerana mereka dapat kesan JPN dah buat silap. Sementara tu, kerakyatan yang diberikan secara penipuan (fraud) pula adalah permohonan kerakyatan yang dibuat secara tak jujur. Sebagai contohnya macam MyKad palsu yang kita selalu dengar tu. Kalau kerajaan tahu pasal ni, mereka boleh tarik balik kerakyatan tu bila-bila masa je, walaupun orang tu dah tinggal di Malaysia bertahun-tahun lamanya. Tak mudah sebenarnya untuk kerajaan tarik balik kerakyatan Walaupun Perlembagaan Persekutuan ada menyenaraikan beberapa sebab yang membolehkan kerakyatan seseorang tu ditarik balik, ada juga peraturan yang kerajaan kena ikut sebelum buat macam tu. Artikel 26A Perlembagaan Persekutuan menyatakan – kerakyatan seseorang hanya boleh dilucutkan kalau “Kerajaan Persekutuan berpuas hati bahawa tidak berfaedah kepada kebaikan awam untuk orang itu terus menjadi warganegara”. Seterusnya, Artikel 27 ada menetapkan prosedur yang kerajaan kena ikut: notis mesti diberikan kepada orang yang kerakyatannya mungkin akan dilucutkan, dan ia mesti disertakan dengan sebab-sebab pelucutan tersebut. Orang tu juga mesti ada hak untuk mempunyai jawatankuasa siasatan bagi menyiasat kes tersebut. kalau dia memilih untuk adanya jawatankuasa, kerajaan harus melantik 2 orang ahli dan seorang pengerusi untuk mendengar kes tersebut kerajaan kemudiannya kena buat keputusan berdasarkan hasil siasatan jawatankuasa tersebut Mungkin ada di antara undang-undang yang korang baca ni agak berat untuk difahami. Tapi takpe, apa yang korang kena ingat adalah – rakyat Malaysia tak boleh ada kerakyatan negara lain atau tak boleh menentang kepentingan negara. Seterusnya, korang kena pastikan kerakyatan yang korang dapat tu sah di sisi undang-undang dan tak ada sebarang kesilapan semasa pendaftaran."
"Can Malaysians actually sue the person who started the Sivagangga cluster? Even though Malaysia has entered the recovery stage of Covid-19, there seems to be another wave of the virus—the Sivagangga cluster. This cluster is believed to have been started by a Kedah man who returned from Sivagangga, a town in India. Instead of undergoing the 14-day home quarantine when returning from overseas, the man was seen operating his restaurant on Hari Raya Aidiladha. Although he initially tested negative for Covid-19 when he arrived in Malaysia, he later tested positive. Authorities then traced customers who had visited the restaurant to test them as well. Some of his customers did end up testing positive, and these people went on to infect those around them. At the time of writing, the majority of the new cases in Malaysia are said to be from this cluster. This has forced schools in affected areas to shut down and a few localities to be put under an enhanced MCO. Due to all of this, the Consumers Association of Kedah and a few NGOs have said that they’re planning to sue this man for starting the cluster. We spoke to a lawyer to find out under what he could be sued for, and whether suing is possible in the first place. Proving that he infected everyone may be difficult The group has planned to sue him because they feel that a mere fine will not be enough of a punishment for breaking the home quarantine. “We want to take this man to court for he has caused all Kedahans to suffer.” -Consumers Association of Kedah's secretary, Mohd Yusrizal Yusoff According to the lawyer that we spoke to, while this may sound pretty straightforward, in reality, it is not. We know that the man did indeed break the home quarantine. However, proving that it was really him who infected those around him that day may be difficult. The lawyer went on to say: “The Covid virus doesn’t leave footprints or fingerprints. Therefore they have to ask the court to rely on speculative evidence, that based on all the facts of the case it is highly probable that their infection was caused by him.” So, while it is VERY LIKELY that he did cause these new cases that we’re seeing, it’s still possible that some of those cases may have also been caused by others who could already have been infected at that point. It’s also worth noting that Covid-19 is also airborne to a certain extent. Until and unless the virus strain in every person is tested, and the strain is proven to come from him, we can’t really say that he caused these infections. Even if it’s proven, suing may be difficult For now, we don’t know what civil wrong this group plans to sue him for. But as an example, let’s take a look at negligence, which is what you sue someone for if they have been careless and caused you harm. If the group is indeed planning to sue the man for negligence, they’ll have to prove that: he had a duty of care towards the public (a duty of care is a duty to keep someone away from harm) he breached that duty because he breached it, the other person suffered some damage that damage is very likely a result of that breach (not something that has a weak link between the negligent act and the damage suffered by the victim) From the outset, it can be said that the man doesn’t specifically owe a duty of care towards everyone. While he might have a responsibility as a shop owner to provide a safe environment for his customers to eat in, this duty won’t apply to those who aren’t his customers. This in turn would make it impossible for him to breach it in that duty in the first place. This may sound ludicrous at first, but it does make sense. If everyone could get sued for infecting another person for Covid-19, the courts would have too many lawsuits to look at. But of course, there’s nothing stopping you from filing a case in court against someone who you believe has spread the virus. But whether the court actually thinks its worth a case, is a different story. At this point you might be wondering: if Malaysians can’t sue someone for spreading the virus, can they at least sue someone who directly infected them? The law is the same for this scenario as well, and the person who wants to sue would have to prove the 4 elements of negligence that was stated above. Again, it might be hard to prove that a person indeed infected you, and that it wasn’t someone else. But it might be easier to prove your case if you were in direct contact with them and no one else for a period of time. [READ MORE: Here's what you can do if someone isn't revealing they're COVID-19 positive in Malaysia] The government may charge the person with criminal negligence So suing is no easy feat, as we’ve seen. But it doesn’t mean that a person who is said to have started a cluster can just run scot-free. In fact, the government may be able to do something about it. But before we explain this part, there’s one thing we need to clarify: There’s a difference between suing someone for a civil wrong and charging them for a crime. Individuals can sue one another, but only the government can charge an individual with a crime. So even if a person is unable to sue another person for infecting them with Covid-19, the government may be able to charge them with criminal negligence for infecting others. Unlike civil negligence which talks about a duty of care, criminal negligence is when someone ignores such a great risk, that it endangers the lives of others. Whether the government will actually do this is difficult to say, as it could mean charging not just this man who started the Sivagangga cluster, but everyone who has potentially infected others. It would also mean that the government will have to prove that the person (and ONLY that person) infected others. Instead, the government may want to take more viable methods, which they actually already have. For now, they have sealed the restaurant owned by the man and revoked the business’s license to operate as a penalty for breaking the home quarantine. Update as of 13th August 2020: The man has been sentenced to 5 months of jail and fined RM12,000 for not complying with the home quarantine."
"A Msian boss was fired for calling his secretary sayang...All. The. Time. Can calling your coworker sayang actually get you fired? Some of us might use it jokingly in the workplace, especially the office’s resident casanova. And everyone might just laugh it off, because...it’s a joke. Right? However, if the target of endearment does not want it, and you keep on doing it, guess what? It might actually fall under sexual harassment. Because as we’ll find out in this court case, sexual harassment isn’t just limited to being touchy feely. He called her sayang...A LOT This case happened between a boss and secretary. But let’s start with the boss first. Logan was a Construction Superintendent, who worked for Murphy Sarawak Oil. He was with the company for four years. When his contract was renewed on 2 February 2015, he was assigned to his company’s contractor, Brooke Dockyard, in Kuching. There, he was assigned a secretary, RR* (name hidden for privacy purposes). It didn’t take long for him to start getting overly comfortable. In the first few weeks itself, Logan was already calling RR sayang, despite her telling him to stop calling her that. He also used it in text messages between them, in addition to sending good morning messages, sometimes including inappropriate quotes or images. In two WhatsApp messages on 12 February, he said: “Sayang, please come early to the office.” – Logan As well as: “Thank you sayang. Have a safe drive. I’m waiting to see my sayang’s smiling face.” – Logan This wasn’t only done in private conversations. During a progress meeting in early March with other employees, he announced that RR, who was sitting next to him, was his sayang. RR was upset and uncomfortable with this, as the other employees started teasing her for it. It didn’t help matters when in another meeting later that month, he told the other employees not to disturb RR, because if they did he would be angry and jealous. And it started to escalate from there because… He did more than call her sayang In February, Logan also started getting more touchy. Before going to a First Steel Cutting ceremony, Logan asked to take a picture with RR. While posing for the picture, he placed his hand around her. When she tried to move away, he brushed it off by claiming that his previous secretary always liked to hug. He also insisted that they ‘salam’ every morning. But it wasn’t a professional greeting, because Logan would keep hold of her hand for an uncomfortably long time. Once, he even commented that her hands were rough, and he would buy her lotion to make it soft. Logan was also becoming excessively generous for a boss, especially one that’s new. He bought RR gifts such as perfume and hand lotion (to make her hands soft) which she had refused when Logan first brought it up, and refused again when he gifted them to her. The perfume was given when Logan insisted that she pick him up from an airport, instead of a driver. When she turned it down, he just kept it on her dashboard. The gifts also started to seem romantic, when he gifted her flowers on Valentine’s Day. Later in March, the company had a team building dinner. Before going there, he told RR to follow him clothes shopping. But the clothes weren’t just for him—he wanted to buy RR a new dress for the dinner, as he wanted her to be the prettiest one there. She tried to turn him down, but Logan pulled rank, and told her that he was her boss—so she should follow his orders. RR quits the company If you’re a sharp reader (which we know you are!), you’d notice that these events happened only between February and March 2015. And there’s a reason why it’s so short: because two months was how long RR lasted before she couldn’t take it anymore. On 30th March, they had their team building dinner at Damai Beach Resort. Logan couldn’t find his hotel room, and when he did find it, it wasn’t a room that he wanted. Angry, he called RR and scolded her through the phone. He then told her to meet him at the hotel lobby. There, he continued the tirade, saying that RR treated him like a dog in front of the contractors. This was the last straw for RR. The next day, she left the team building meeting abruptly. The day after that she resigned via text message to Logan. She only sent her official resignation letter to her company a week after that. She told them that she was unable to submit it earlier, as she was traumatised from the sexual harassment. When asked why she didn’t make a complaint earlier, RR said that because Logan was her superior, she was afraid that she would either lose her job, or Logan would ask her to resign. The main company, Murphy Oil, acted swiftly, sending Logan a show cause letter for sexual harassment two days later (A show cause letter is basically asking the employee to explain why they shouldn’t be disciplined). One month later, the company held a domestic inquiry (DI) proceeding against Logan for four charges of sexual harassment. They only proved one...but that was all they needed At the DI proceeding, Logan was charged with four counts of sexual harassment. They were: Verbally harassing RR by calling her sayang publicly, in front of other company personnel, as well as through electronic messages Physically harassing her by putting his arm around her Giving RR unwanted attention by offering and giving her presents and messages Abusing his position by making her do work outside of her scope According to the DI’s panel, these inappropriate acts have made RR “uncomfortable, upset, stressed, heavy hearted, scared to work and afraid of what (Logan) would do next.” However, the company did not find him guilty of all four. They decided that the first charge – calling his secretary sayang – was sufficient to prove that he was sexually harassing her. This is because in their company code, there was a line that stated: “...there are certain behaviours that the company will not tolerate. These include unwelcome sexual advances or other inappropriate personal conduct.” – excerpt from Murphy Oil’s Code of Conduct Because of their zero-tolerance policy, he was dismissed two months later. Obviously, Logan was not happy with it and brought his employer to the Industrial Court, claiming that he was unfairly dismissed. They had 40 pages of evidence of him using sayang At the Industrial Court, in the case of Loganathan Maniam v. Murphy Sarawak Oil Co Ltd [2020] 2 ILR 275, Logan claimed that he was unfairly dismissed, and that he did not get natural justice (basically a fair trial) during the DI proceedings. To see whether he really was unfairly dismissed, the court had to look into two things: Was Logan guilty of the four allegations of misconduct If he is guilty, whether that misconduct is serious enough for him to be dismissed Strangely enough, when questioned he did not deny calling RR sayang. Rather, he said that he only called her sayang 3-4 times, and that he had innocent intentions: he only thought of her as a daughter. And when he did call her sayang, he did so with her permission. Embarrassingly, this was disproved when the court said they had nearly 40 pages of documents containing their WhatsApp conversation. It showed that Logan called her sayang in nearly every single message. This is in addition to eyewitness accounts confirming that he did so publicly. The court also said that in Malay, the word ‘sayang’ is a term of endearment, which signifies intimacy beyond a friendship. As a man, as well as RR’s superior, his actions were unacceptable. Not only that, RR herself had said she felt uncomfortable with him calling her sayang, saying that it embarrassed her. As for the gifts, Logan denies having any wrong intentions in giving the gifts. However, the court finds that giving a subordinate personal items such as perfume and flowers as unacceptable. The court also decided that the company has sufficiently proved that he had physically harassed her, as well as abused his position. His misconduct of sexually harassing his secretary, RR, was also serious enough for a dismissal. Therefore, the company did nothing wrong in firing him. Logan will not get his job back. It’s not just physical acts As you can see, it doesn’t have to be only physical acts for something to be considered as sexual harassment. According to the Employment Act 1955, sexual harassment is: any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment; We might overlook verbal harassment, or even gift-giving as something innocent. However, as this case proves, if the loving words and thoughtful gifts are unwanted, and in this case repeated, then yes, it can be sexual harassment. So if you do feel you’re harassed at work, don’t hesitate to report it to your HR. We’ve written before on how to do so, in case you’re unsure of what to do next besides contacting HR. [READ MORE: What can you do if you have been sexually harassed in Malaysia? ]"
"If your friends ditch you after eating in an 'atas' restaurant, do you pay the bill? Imagine this: You get a phone call one morning from your long-lost high school friend—asking if you were free to meet up with some other friends. You realise it’s been so long since you went out with anyone (thanks to the pandemic), so you agree without hesitation! Your friends decide to meet at this slightly atas restaurant in town, and everyone agrees to it, including you. The day finally came where it was all fun and games until...your “friends” started to leave one by one. It was finally just you and that friend who invited you to meet up. Things started getting awkward and he managed to escape by telling you he needs to use the washroom, but he never came back. You waited for at least half an hour until the waiter approached with a 3-metre long paper, which carried a bill amounting to RM980! It finally hit you that you’re stuck with a hefty bill that was supposed to be shared between you and your friends. Now this situation may be fictional in this article, but there may be some of you out there who have been ajak-ed to lepak by your friends and ended up paying the whole bill in the end. So in this situation, are you allowed to only pay for your share, or do you have to cover the whole bill? It depends on the restaurant itself There are no laws that specify who should pay the bill at the end of the day. But it is important to note that restaurants are private property and owners of private property can impose rules that they think are relevant to them. For instance, you can’t bring outside food to some restaurants. The restaurant can actually kick you out for doing so, because it is a rule they decided to follow. [READ MORE: Can Malaysian restaurants legally stop you from bringing outside food?] Similarly, when you enter their premise you’re bound by the restaurant rules and might have to pay for the entire bill before you leave. According to Ho Zhi Yee, a lawyer we spoke to for this article: “The contract is between the 5 people (assuming [there were 5] adults and all have the capacity to enter contact) with the restaurant. If nobody pays, the restaurant can bring a claim for breach against all 5 people. And all will be equally liable for the sum. But if everyone left the restaurant except one person, technically he can choose to pay only for his portion, but I doubt the restaurant owner will allow him to leave in reality...”— Ho Zhi Yee to Asklegal. So Zhi Yee basically told us, that if everyone who ate together at the restaurant refused to pay—the restaurant can take action against them for breaking the contract. The contract we’re talking about in this situation is formed between the restaurant and the customer(s). Under Section 13 of the Contracts Act 1950, when two people form a contract—which in this case is trading money for food—there must be something called consensus ad idem between them. In other words, this means that they agree on the same thing, with the same understanding. So in this case, the restaurant agrees to serve food, in return of payment for the meal. [READ MORE: If you get overcharged for nasi campur, can you refuse to pay?] But if only one person is left to pay the entire bill, he can only choose to pay for what he ate, and not for everyone else. But this would impose a risk to the restaurant—which is why that one last person left, will most likely pay for the entire bill before leaving. So assuming you ended up paying the whole bill, what can you do about the money you never intended to spend on your so-called friends? Settle it outside with your ‘buddies’ Okay don’t take this the wrong way when we say ‘settle outside’—because what we’re implying here is that you can go after your friends (legally) to get your money back. If you’ve exhausted all means of asking them for the money they owe you, you can consider taking things to the next step by…going to court! We have something called the ‘Small claims procedure’ in Malaysia, which allows you to claim for anything less than RM5,000. The claim can be done by simply heading over to a local Magistrates Court and filling in Form 198—to begin the claim. You may consult a lawyer when filling up the form but take note, you are not allowed to be represented by a lawyer during the hearing. Basically, you will represent yourself under small claims procedures. [READ MORE: If someone borrows money and doesn't pay you back, Malaysian law can help] And yes, before you tell us this whole thing seems blown out of proportion just because your friends didn’t pay their share of the bill with you—we agree. But there have been cases of Malaysians spending exorbitantly on food with bills hitting a few thousand Ringgit! So this fictional situation might just end up becoming reality, if your friends leave you to pay for the whole thing at the end of the meal. We also spoke to another lawyer, Teeruvarasu on what he thinks should be done if one were to be in this circumstance: “It's uncommon for this type of case [to be brought to the courts]...unless if it's a substantial sum. However, at end of the day if he/she refuses to pay back, the only solution that you have is to unfriend him.” –Teeruvarasu to AskLegal. If a group of you go out and ate for a few thousands, and they made you pay for it—perhaps you should consider looking into the legalities. But if it isn’t much, just settle it by talking to your friends or unfriend them on all social media platforms (as well as in real life) to avoid problems like this once and for all."
"5 ways Malaysian landlords could be breaking the law Despite tenancies being common, up until now, there isn’t a specific law in Malaysia for landlords and tenants. There have been talks of a new tenancy Act, but it’s currently still in the works. For now, because there are no tenancy laws in black and white, it can be hard to tell what exactly the rights and responsibilities of landlords and tenants are. But the good thing is that some parts of other laws—such as contract law and property law—can be applied to tenancies. Based on these various laws, in this article, we’ll look at some obligations that landlords should fulfill. It’ll be an incredibly long list if we’re going to talk about all the things both landlords and tenants should do. So for now, we’ll only be focusing only on landlords. 1. Entering their own property...while the tenant lives there No, you didn’t read that wrong. As crazy as this may sound, landlords can actually get in trouble for forcefully entering the property while the tenant is occupying it. A landlord who does this is said to have trespassed the property. Trespassing means entering someone’s land or property without their permission. At this point you might be thinking: Wait, it’s the landlord’s land, so how can this be trespass? While the house does legally belong to the landlord, the tenant has the right to live there. So, while a person can legally own a house, someone else might have the right to possess the house. This is especially the case if the tenant has been paying rent to stay in that place. But even if the tenant has not been paying their rent and the landlord wants to break in, this will still be counted as trespass. In fact, this is exactly what happened in the case of Abdul Muthalib Hassan v. Maimoon Hj. Abd. Wahid [1992]. In this case, the landlord had broken the lock to the door to enter his property as the tenant was not paying the rent. The court actually said that it was illegal for the landlord to enter the property just like that. And if you’re wondering what else you can do to get your unpaid rent, know that there are other legal ways to do it, such as applying for a writ of distress. This is basically a petition in court for the tenant’s property to be seized, so that they will have to pay up. [READ MORE: If tenants don't pay rent, what can Malaysian landlords do?] But just so you know, it’s not trespass if the landlord enters the house to oversee a repair or to just make sure it’s in good condition. This would be totally fine because the landlord wouldn’t be forcefully entering the home without the tenant’s knowledge or permission. 2. Not declaring rental income If you weren’t already aware of this, any income that you get has to be declared when filing for taxes. While the Income Tax Act 1967 itself does not specifically mention rent as income that can be taxed, Lembaga Hasil Dalam Negeri (LHDN), or the Inland Revenue Board has mentioned that it does. And under Section 113 of the Income Tax Act, it’s a serious offence to not declare the types of income that have been listed by LHDN, if those incomes are applicable to you. It says: (1) Any person who— (a) makes an incorrect return by omitting or understating any income...of himself or another person; or (b) gives any incorrect information in relation to any matter affecting his own chargeability to tax or the chargeability to tax of any other person, shall...be guilty of an offence and shall, on conviction, be liable to a fine of not less than one thousand ringgit and not more than ten thousand ringgit and shall pay a special penalty of double the amount of tax which has been undercharged... The section is pretty wordy, but it basically says: If you don’t declare your income correctly, you can be fined anywhere between RM1,000-RM10,000. Besides this, there’ll also be a ‘special penalty’ that’s double the amount of tax you should have paid. 3. Not paying property tax While the previous point talks about declaring money earned from rent to LHDN, this one is about being taxed for having a property in the first place. Just like how we are taxed for various things like using a service, or having a car, having a property is also something you can be taxed for. In Malaysia, property tax is split into three: quit rent—also known as ‘cukai tanah’. This rate is calculated by square foot of the property parcel rent— introduced in 2018 for strata properties (condos, apartments, gated properties and basically, any shared property. Before this was introduced, strata properties used to pay quit rent instead assessment tax—also known as ‘cukai pintu’. This tax is collected by your Majlis Perbandaran to maintain the area. The taxes will usually need to be paid every February or August. Similar to the previous point, the penalty for not paying the tax would be a fine. But it’s a little different in this case as here, the Local Government Act 1976 comes into play. Specifically, Sections 147 and 148 tell us what happens if someone fails pay the tax. They’re two very long sections, so we’ll just summarise it for you: If anyone fails to pay the taxes by February or August, the sum they owe will be counted as an ‘arrear’—basically, money that should have been paid earlier. If the a homeowner or landlord refuses to pay the arrears, the Majlis Perbandaran has the right to seal the house and even remove property from it. 4. Not paying maintenance fees This one only applies to strata properties, which if you remember, are condos, apartments, gated properties and so on. If you live in one, you probably already know that the managements in these properties would collect a maintenance fee. Under Section 25(1) of the Strata Management Act 2013, homeowners or landlords are the ones who have to pay this fee: “Each purchaser shall pay the Charges, and contribution to the sinking fund, in respect of his parcel to the joint management body for the maintenance and management of the buildings or lands intended for subdivisions into parcels and the common property in a development area” Charges in the section above actually refers to the maintenance fee. Usually, if the homeowner fails to pay the fee and he lives there, it’s easier for the management to take action against him. But if the house is being rented out, when the landlord doesn’t pay up, the tenant is usually the one to get in trouble with the management. The management may take away some access to the property from the tenant, like barring the access card. The tenant would need to inform the management that it’s the landlord who’s not been paying the maintenance fees, so that action will be taken against the landlord instead of the tenant. The management may then want to file a case against the landlord in the Strata Management Tribunal. But if the tenant themselves not been able to live peacefully on the property because of the landlord’s fault, the tenant can also take legal action against the landlord. 5. Not having a proper tenancy agreement Tenancy agreements are basically contracts between landlords and tenants, and it will highlight their main duties and responsibilities towards each other. But remember we said that there isn’t a specific law for landlords and tenants in Malaysia? Because of this, having a tenancy agreement isn’t really a requirement under the law. But it’s still good to have one, because you will have stronger rights if a problem were to crop up. Without an agreement, a landlord could evade taking care of a problem, or a tenant could run off after damaging the home. So to avoid issues like these, it’s best to have a simple tenancy agreement. If you’re a landlord and you’re thinking of getting one done now, get in touch with a lawyer to draft it. Once that’s done, sign it with your tenant. Then, take it to the nearest Lembaga Hasil Dalam Negeri (LHDN) branch to be stamped, otherwise the agreement will not be valid."
"Apa tu main kutu dan kenapa pula ia diharamkan di Malaysia? [Click here for the English version] Secara mudahnya, main kutu ni adalah satu skim untuk menyimpan dan mengumpul duit secara cepat. Selain dikenali sebagai Main Kutu, ada juga yang kenali skim ni dengan nama – “duit kutu” atau nama kurang popular “tontine” atau “chit fund”. Tak kisahlah apa yang korang panggil, mesti ada di kalangan kita yang pernah terlibat dengan skim ni. Kalau tak pun, kita tahu orang sekeliling kita macam kawan-kawan dan ibu bapa kita yang terlibat dengan skim yang sama. Tapi kalau ramai yang masih tak tahu macam mana main kutu ni berfungsi, mungkin lebih baik untuk kitorang terangkan sedikit supaya korang faham. Ceritanya macam ni: Jom kita bayangkan senario melibatkan Ali dan 4 orang kawannya: Ali dan kawan-kawannya tu ambil keputusan untuk dapatkan plan simpanan antara diorang dengan cara yang lebih mudah dan cepat. Jadi diorang buat keputusan untuk setiap orang bagi RM1,000 untuk setiap bulan. Jadinya, setiap bulan diorang akan kumpul RM5,000. Lepas tu diorang akan undi, untuk tentukan giliran siapa yang akan dapat RM5,000 tu untuk setiap bulan. Contohnya, Ali dapat giliran yang pertama, maka bulan pertama tu dia akan dapat RM5,000. Tapi untuk bulan seterusnya, Ali dan 4 lagi kawan-kawannya tu akan tetap perlu bayar RM1,000, untuk kumpul RM5,000 dan diberikan kepada giliran yang seterusnya. Walaupun macam tu, skim ni sebenarnya bukannya mudah nak diterangkan secara ringkas. Sebab tu la, lebih baik kalau korang tahu dulu fakta ni. Main kutu tradisional sebenarnya masih lagi dibenarkan di Malaysia Rupa-rupanya, ada dua jenis main kutu ni, iaitu jenis tradisional dan perniagaan. Untuk main kutu yang melibatkan kawan-kawan dan keluarga, ia boleh ditakrifkan sebagai jenis tradisional. Maknanya, bila diorang terlibat, takde seorang pun yang buat keuntungan dari skim tu. Menurut Suruhanjaya Syarikat Malaysia: ""Skim wang kutu tradisional biasanya dianjurkan atas dasar kemasyarakatan dan kepercayaan dalam kalangan jiran tetangga, sahabat handai, saudara-mara atau rakan kerja bagi tujuan mengumpulkan wang mengikut keperluan masing-masing tanpa sebarang keuntungan bagi mana-mana individu,"" Dari sini, dah dipastikan yang main kutu tradisional sebenarnya dibenarkan, sebab ia berdasarkan nilai-nilai masyarakat dan kepercayaan. Tapi, dalam masa sama, ada juga pihak yang cuba buat untung dengan menggunakan skim ni… Ia mungkin boleh jadi haram Sekarang ni, kalau korang cuba menjadikan kutu sebagai urusan perniagaan maknanya ada sebab untuk ia diharamkan. Sebabnya, menurut Seksyen 3 Akta (Larangan) Kumpulan Wang Kutu 1971: “Salah di sisi undang-undang bagi mana-mana orang untuk menjalankan perniagaan menganjurkan kumpulan wang kutu dan mana-mana orang yang menjalankan perniagaan itu melakukan suatu kesalahan...” Dari pembacaan dalam seksyen ini, terdapat 2 perkara yang membuatkan aktiviti kutu sebagai haram: Menjalankan perniagaan kutu Promosi main kutu/perniagaan Sekarang ni, korang mesti terfikir yang main kutu ni selalunya dijalankan di kalangan kawan-kawan dan keluarga. Jadi, macam mana pulak tiba-tiba ada undang-undang yang larang main kutu diniagakan? Sebenarnya, dekat Malaysia ni selalunya memang kutu tu jenis tradisional, tapi dekat negara lain – ia diniagakan, macam India. Di India, ada undang-undang yang membenarkan syarikat kutu ni wujud. Perniagaan ni secara asasnya menyediakan platform untuk main kutu kepada para peserta dengan mengenakan yuran. Jadinya dekat Malaysia, undang-undang melarang perkara ni diperkenalkan supaya dapat kekang benda macam ni dari berlaku. Dan untuk pastikan yang ia betul-betul tak berlaku… Undang-undang Malaysia melarang kita dari mempromosikan main kutu. Walaupun macam tu, penerangan dalam seksyen tu masih lagi samar dan agak sukar untuk kita tahu “promosi” macam mana yang undang-undang nak larang. Tapi kitorang yakin yang ia juga termasuk dengan promosi di sosial media. Dalam masa sama, kalau dalam situasi tertentu ada pihak yang cuba buat keuntungan dengan cara ni, ia juga tertakluk dengan undang-undang. Jadi, kalau korang main kutu dengan kawan-kawan… boleh je sebenarnya… Tapi kalau korang dan kawan-kawan korang tu buat keuntungan dengan main kutu, SSM dan PDRM mungkin akan tangkap korang. Sebenarnya ada munasabah juga undang-undang ni diperkenalkan sebabnya kadang-kadang tu kita ada dengar juga kes orang lari dengan duit kutu yang terkumpul. Oleh itu, secara asasnya, undang-undang ni nak melindungi orang tak bersalah dari ditipu atau rugi kalau diorang dah melabur banyak duit untuk main kutu ni. Jadinya, kalau korang ada dengar atau didekati dengan orang yang cuba perkenalkan perniagaan kutu, korang mesti bagitau Suruhanjaya Syarikat Malaysia (SSM) supaya diorang boleh siasat dan ambil tindakan yang patut. Bagaimanapun, kalau apa yang korang main tu yang jenis tradisional dan tiba-tiba ada pula kes orang bawa lari duit, korang masih boleh tegakkan keadilan dengan buat laporan polis."
"Pecat pekerja secara tak adil. Syarikat ni kena bayar RM1.13 juta kepada bekas pekerja [Click here for English version] Kalau korang kena pecat hari ni – terutamanya tanpa sebab yang munasabah – rasa-rasanya korang akan bawa majikan ke mahkamah tak? Sebenarnya, ramai je rakyat Malaysia yang bawa kes mereka ke Mahkamah Perusahaan sebab rasa dah diberhentikan kerja secara tak adil oleh majikan masing-masing. Menurut laporan Malay Mail, 8 dari 10 kes yang dibicarakan di Mahkamah Perusahaan adalah kes pemecatan secara tak adil. Jadinya pada kali ni, kami akan ceritakan tentang satu kes yang jadi pada tahun 2019 membabitkan seorang pekerja Petronas, dikenali sebagai NR. Seperti mana yang korang baca pada tajuk di atas, dia sebenarnya dah menang kes dan diberikan pampasan sebanyak RM1.13 juta. Oleh itu, jom kita ambil tahu macam mana kes ni bermula, apa yang membuktikan pemecatan tu sebagai salah dan macam mana dia akhirnya dapat pampasan dengan jumlah yang sangat besar. Macam mana sebenarnya seseorang tu boleh ‘dipecat secara tak adil’? Sebelum kita cerita lebih lanjut pasal kes ni, kami nak terangkan dulu secara ringkas apa dia dipecat secara tak adil ni sebenarnya. Sebabnya, syarikat boleh je pecat pekerja mereka atas alasan-alasan tertentu seperti salah laku dan prestasi yang kurang memuaskan. [BACA LAGI: Boleh ke korang kena pecat kalau tahap kerja tak memuaskan?] Bagaimanapun, majikan kena buktikan dakwaan tu dulu sebelum bertindak memecat pekerja. Kalau pekerja dipecat tanpa sebab yang munasabah dan pekerja dapat membuktikannya, ia boleh dikatakan sebagai dipecat secara salah. Hal ni seterusnya akan membolehkan korang ambil tindakan terhadap majikan. Berdasarkan Seksyen 20, Akta Perhubungan Perusahaan 1967: (1) Jika seseorang pekerja, tidak kira sama ada dia seorang ahli kesatuan sekerja pekerja atau selainnya, dianggap bahawa dia telah dipecat tanpa sebab atau alasan yang munasabah oleh majikannya, dia boleh membuat representasi bertulis kepada Ketua Pengarah untuk diambil bekerja semula dalam pekerjaannya dahulu (1A) Ketua Pengarah tidak boleh melayani apa-apa representasi di bawah subseksyen (1) melainkan jika representasi tersebut difailkan dalam masa enam puluh hari dari tarikh pemecatan: Dengan syarat bahawa apabila seseorang pekerja diberhentikan dengan notis, dia boleh mengemukakan perwakilan pada bila-bila masa dalam tempoh pemberitahuan tersebut tetapi tidak lewat dari enam puluh hari dari tarikh tamatnya. Secara mudahnya, seseorang pekerja yang dimerasakan dirinya dah dipecat tanpa alasan yang adil boleh memfailkan kes terhadap majikannya di Mahkamah Perusahaan – untuk mendapatkan kerjanya semula. Tapi, ada had masa iaitu korang kena failkan kes dalam tempoh 60 hari dari hari dipecat, atau kalau korang ada diberikan notis, ia dalam tempoh 60 hari sebelum tempoh notis tu tamat. Bila kes ni dibawa ke mahkamah, mahkamah akan gunakan cara two-fold test bagi menentukan sama ada benar atau tak pekerja tadi dah dipecat secara tak adil. Dalam kes NR, mahkamah nampaknya merujuk kepada kes Auto Sdn. Bhd lwn Wong Seh Yen [1995], di mana hakim ada menyebut: ""Seperti yang ditunjukkan oleh Mahkamah ini baru-baru ini dalam Wong Yuen Hock lwn Syarikat Hong Leong Assurance Sdn. Bhd. & Rayuan Lain [1995] ... fungsi Mahkamah Perusahaan ... adalah untuk menentukan sama ada salah laku yang diadukan oleh majikan telah dibuktikan, dan kedua sama ada salah laku yang terbukti merupakan sebab atau alasan untuk pemecatan tersebut. "" Ringkasnya, salah laku harus dibuktikan dan salah laku itu kena cukup teruk sehingga membuatkan korang dipecat. Jadi sekarang, tibalah masa kami ceritakan kenapa NR ni dipecat. Dia dah bekerja dengan syarikat tu selama 24 tahun Sebenarnya, NR bukanlah orang baru dalam syarikat, sebab dia dah bekerja dengan Petronas sejak tahun 1993 lagi. Pada mulanya, dia berkhidmat sebagai Eksekutif Pembangunan Kakitangan dengan gaji bulanan sebanyak RM1,590. Sejak tu, dia tetap setia dengan syarikat dan dinaikkan pangkat beberapa kali. Masa dia diberhentikan kerja, jawatannya adalah Pengurus Kanan dengan gaji RM25,789 sebulan, selain dapat elaun bulanan kereta sebanyak RM1,600. Semuanya nampak macam biasa je, sampailah adanya ‘penstrukturan semula’ dalam syarikat dan sebuah bahagian baru ditubuhkan. Dalam bahagian baru tu, NR ada orang atasan yang dikenali sebagai ZZ. Sekarang ni, NR dan beberapa rakan sekerjanya tak berapa ‘ngam’ dengan orang atasannya tu. Bahagian mereka tu juga ada masalah dalaman pada tahun 2016 dan mereka ada minta HR syarikat untuk tolong selesaikan masalah tu. Malangnya, HR minta mereka selesaikan isu tu antara mereka je. Tak lama lepas tu, pada awal tahun 2017, ada pula penilaian prestasi kakitangan untuk tahun sebelumnya. Mereka pun buat mesyuarat tentang perkara ni dengan ZZ sebagai orang yang bertanggungjawab. Mesyuarat ni kemudiannya buat keputusan untuk meletakkan NR dalam Pelaksanaan Peningkatan Prestasi (PIP) selama 6 bulan. Perkara ni agak mengejutkan jugalah sebab – inilah kali pertama NR dapat amaran pasal prestasi kerjanya. Selama 23 tahun dia bekerja dengan syarikat, dia dikatakan ada rekod prestasi yang baik dan perkara ni kemudiannya disahkan sendiri oleh mahkamah. Apa-apa pun, dia lepas tu tetap pergi ke PIP dan ditempatkan di bawah pengawasan rakan sekerja lain yang dikenali sebagai SB. Setelah tamat 6 bulan (April-Oktober 2017), prestasi kerjanya dinilai semula oleh Jawatankuasa Pembangunan Kakitangan syarikat. Jawatankuasa kata yang mereka tak nampak sebarang peningkatan prestasi dan minta NR terus bekerja di bawah SB. Sampailah pada pertengahan Disember apabila secara tiba-tiba NR dapat notis penamatan kerja serta merta. Maknanya, esok hari dia bukan lagi pekerja di syarikat. Kerana notis singkat tu, dia diberikan gaji 3 bulan sebagai pampasan dan cuti yang tak digunakan boleh ditukar dengan wang tunai. Mahkamah tak terima cerita syarikat Walaupun peristiwa tu jadi pada tahun 2017, hanya pada tahun 2019 kes ni dibicarakan di Mahkamah Perusahaan. Seperti yang disebutkan awal tadi, mahkamah akan gunakan two-fold test bagi menentukan sama ada NR dipecat secara adil atau tak. Berdasarkan pemeriksaan dan fakta kes, mahkamah kata yang NR memang dipecat tanpa alasan munasabah… dan memberikan sebab-sebab berikut: Dalam hujahnya, syarikat mengatakan yang prestasi NR buruk, dan dia juga ada masalah tingkah laku yang memberikan contoh buruk kepada orang lain. Tentang hal ni, mahkamah kata yang NR ada prestasi kerja baik selama 23 tahun dan dibuktikan oleh mereka yang pernah bekerjasama dengannya. Dia juga dah terima banyak kenaikan pangkat selama bertahun-tahun, yang mencerminkan etika kerjanya. Tak masuk akal untuknya secara tiba-tiba buat masalah pada tahun ke-24 bekerja. Mahkamah mengatakan yang syarikat berusaha memberi gambaran buruk terhadap NR. Sudah jelas yang NR dan ZZ ada perselisihan peribadi, yang menyebabkan NR dimasukkan ke dalam Pelaksanaan Peningkatan Prestasi (PIP). Mahkamah yakin bahawa PIP hanya digunakan sebagai alasan untuk memberhentikan NR. NR ada cuba dapatkan khidmat nasihat daripada HR dengan rakan-rakan yang lain masa mula-mula ada masalah dengan ZZ, tapi tak ada apa yang dilakukan tentang perkara ni. NR diletakkan di bawah pengawasan SB semasa PIP. Mahkamah mengatakan ada bukti bahawa SB sebenarnya tak memenuhi syarat untuk menjadi orang atasan NR, dan SB selalu bertanya kepada ZZ iaitu orang yang ada masalah dengan NR, nasihat tentang cara menilai kerja NR. Walaupun syarikat mengatakan NR tak lagi sesuai untuk melaksanakan tugasnya, mereka meletakkannya sebagai orang yang bertanggungjawab dalam sebuah projek besar — jadi tindakan mereka bertentangan dengan pendapat mereka. Mahkamah kemudiannya kata – keputusan tu dibuat berdasarkan Seksyen 30(5) Akta Perhubungan Perusahaan 1967: “Mahkamah hendaklah bertindak mengikut ekuiti, hati nurani yang baik dan merit penting kes tanpa mengambil kira bidang teknikal dan undang-undang.” Dengan kata lain, lebih daripada aspek teknikal undang-undang, apa yang penting dalam memutuskan kes secara adil, akan menjadi fakta penting kes ni. Dan tentu saja, memutuskan kes dengan adil juga bermaksud memberikan remedi yang sesuai… Dia nak dapatkan kerjanya balik, tapi mahkamah anggap tu bukanlah idea yang baik Sebab kenapa NR failkan kes kepada Mahkamah Perusahaan adalah kerana dia nak dapatkan kerjanya balik. Seperti mana yang diperuntukkan dalam Seksyen 20 Akta Perhubungan Perusahaan 1967 – seseorang pekerja boleh mencabar majikannya dan mendapatkan kerjanya balik. Bagaimanapun, dalam situasi ni, mahkamah berpendapat itu bukanlah remedi yang sesuai untuknya. Jadinya, mahkamah buat keputusan yang dia kena diberikan pampasan wang daripada bekas majikannya. Walaupun syarikat dah berikan 3 bulan gaji kepadanya sebagai pampasan. Disebabkan dia tak dapat kerjanya balik, mahkamah minta Petronas bayar gaji bulanannya sebanyak RM25,789 untuk setiap tahun dia bekerja dengan syarikat (RM25,789 X 24 = RM618,456). NR juga tak dapat cari kerja lain selepas dipecat dan Petronas kemudiannya diperintah memberikan backwages untuk 20 bulan (sebab mereka dah bayar gaji 3 bulan). Backwages ni pada asasnya adalah pendapatan yang hilang dari masa korang dipecat hingga hari korang dapatkan pampasan untuknya. Untuk NR, ia berjumlah RM515,380 (RM25,769.00 x 20). Jadinya, RM515,380 + RM618,456 = RM1,133,836. Mahkamah berikan Petronas tempoh 30 hari untuk bayar jumlah ni. Satu lagi yang korang kena tahu, keputusan Mahkamah Perusahaan adalah muktamad. Bagaimanapun, pihak-pihak terlibat masih boleh memohon semakan kehakiman di Mahkamah Tinggi. Namun begitu, semakan kehakiman hanya tengok tentang macam mana keputusan dibuat (contohnya: sama ada Mahkamah Perusahaan ada hak untuk buat keputusan dengan cara itu), bukannya sama ada betul atau tak. Makanya sekarang, kalau korang dah diberhentikan kerja dan korang rasa ia dibuat tanpa sebab yang munasabah, nampaknya dah tiba masa untuk korang pergi ke Mahkamah Perusahaan."
"Can your boss fire you if you choose to work from home during the RMCO? Okay before we dive into the answer, we’re actually curious to know whether Malaysians prefer going back to work post-MCO or have you blended in to this new WFH lifestyle? Loading… As companies are allowed to operate at full capacity under the RMCO, your boss might ask you to come into the office now to work. But what if a small part of you is worried, that since this pandemic is far from over (and you’ve become so accustomed to working in your PJs)—if you’ll be allowed to WFH although your company started working at full capacity? Well, your company might consider you absent and... Being absent from work is a SERIOUS misconduct Now being absent from work is not the same as being on MC or taking annual leaves. An employee who’s absent from work usually doesn’t have a reasonable excuse for not coming in to the office. When the employee doesn’t justify his absence, the employer (his boss) can take immediate action like getting him fired. [READ MORE: Can Malaysian companies fire you for taking too many MC?] [READ MORE: 5 types of leave in Malaysia (and if you will be paid when you take them)] In Crowne Plaza Riverside Kuching v. Mohamad Zulkarnaen Suhaili, the employee was dismissed for not having a reasonable excuse, when he was absent from work. The Industrial Court said this: “An absent workman misconducts himself if he is either absent from work without reasonable excuse or, if he has a reasonable excuse, fails to inform or attempt to inform his employer of such excuse prior to or at the earliest opportunity during his absence.” The facts of this case basically revolve around an employee who didn’t come to work for 2 consecutive days, and didn’t inform his boss that he won’t be coming in to work. So his absence is actually a breach of his employment contract with the company—which could get him fired legally. Section 15(2) of the Employment Act 1955 states as such: “An employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer, unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence.” The Act essentially says, that an employee who’s absent from work for more than 2 working days, can be fired as it is a serious misconduct under the law. Our Employment Act defines “employees” as those who earn below RM2,000 per month, or those who are engaged in certain services, like manual labour or being a domestic servant. So if you earn more than this, the court will look your employment contract to help you out. But if the employee informs or had attempted to inform his boss, and has a proper reason to be absent from work, the employer cannot fire the employee. If you’re wondering what amounts to a proper reason/excuse—a good example will be having an medical certificate to prove that you were unwell. But that isn’t the only good excuse you can give if you’re absent from work. Read the article below to know how to make reasonable excuses: [READ MORE: Can you get fired for taking emergency leave in Malaysia?] Jokes aside, now here’s the real question: Can you get fired for choosing to WFH? Your boss must approve first So whether or not you’re allowed to continue working from home, will depend on your company policies during the RMCO. Some companies have opted for employees to WFH, while others chose to have their employees at the office during working days. Now there aren’t any cases brought to the Industrial Court, where employees have been fired for choosing to WFH. But there was a case that’s pretty similar to what some of us might be facing, in terms of where we’d prefer to work. In Wan Ahmad Firdaus Bin Wan Rossman v Hong Leong Bank Berhad, the employee was fired for being absent from work from 4 days. When the case came up to the Industrial Court, the court actually sided with the employee, as his job actually required him to work out of the office. The employee was a sales executive, and his job scope required him meet clients. So when it came to a situation like this, the court sided the employee and agreed that he was unfairly fired for being absent from the office. So if your job involves working everywhere but the office—or you’ve been given an option to WFH, you can’t be fired by the company. But if your boss insists that you should work from the office, your boss and the company should follow the SOPs set by the government, before allowing employees back. If you’re still worried about getting infected, perhaps you could talk to your boss about it—or inform him your intentions to WFH. Doing so might avoid you from getting fired for being absent and saving money from a potential lawsuit."
"A Malaysian family got sued because their CCTV was pointed at the neighbour's house If you go to just about any public place, you would easily find surveillance cameras, better known as CCTVs, around. In fact, many homes also have cameras in their compounds for safety reasons. Having cameras on your property can be good thing, as it allows you to monitor your surroundings and look out for any suspicious activities. If something untoward like a robbery happened, it would be easier to identify the person who did it. But as good as cameras may be for us, they can also be seen as a threat to privacy—especially because they involve recording other people. Now, you may have not considered this before, but you can actually get in trouble for having a CCTV on your property, if it invades another person’s privacy, In fact, someone did sue his neighbour for having a CCTV outside his home. Before we tell you that story, let’s briefly look at privacy laws in Malaysia...and how they don’t really exist. There are no privacy laws in Malaysia Under the Federal Constitution (the greatest of all Malaysian laws) you will find all the rights that Malaysians have. Some of them include the right to liberty (freedom), the right to having citizenship, and so on. However, there is actually no mention of a right to having privacy. We’ve written several articles on this and how it can apply to various circumstances, and you can read some of them here: [READ MORE: Can you legally stop someone from taking photos of you in Malaysia?] [READ MORE: What can someone do with your name, MyKad number, address and phone number?] [READ MORE: Malaysia introduced 4 apps during MCO, but how safe is your data when you use it?] But while there aren’t any specific laws for privacy, it doesn’t mean that you absolutely don’t have the right to privacy in Malaysia. In fact, there are other laws which can give you some right to having privacy. For example, the Personal Data Protection Act 2010 prohibits businesses and companies from sharing their customers’ details with third parties (we’ll explain in detail below). Another law that protects privacy is the tort (offence) of private nuisance. Private nuisance is when someone in the neighbourhood does something to ruin your peace, that you don’t feel comfortable living on your property anymore. So under this tort, homeowners can sue a neighbour if that neighbour is well, being a nuisance. Coming back to CCTVs, having one may actually infringe on the privacy of your neighbour and this can amount to private nuisance. This is actually what happened in the case of of Lew Cher Phow & Ors v Pua Yong Yong & Anor [2011], where... He sued his neighbour for having a CCTV So, this case involved two families in Johor whose homes were right next to each other. The neighbours, Lew and Pua were said to have had a lot of problems between one another, so they didn’t didn’t really communicate. At some point, Pua installed several cameras all around the house, and one of the cameras directly pointed at Lew’s house. In 2009, Lew asked the court to give an injunction to Pua. An injunction is to stop a person from doing something, so if it was issued, Pua would have had to stop using that particular camera. At that point, the court dismissed the injunction, saying that the right to privacy was not recognised in Malaysia. But the case eventually went to trial in 2011, and Lew insisted that their privacy was breached because of the camera that had them under surveillance 24 hours, 7 days a week. He said that because of that camera: they had to keep their doors locked at all times this in turn led to them falling sick often due to poor ventilation they had to put up zinc sheets along the walls to block the camera (but this didn’t really do much) they suffered mental trauma and their children’s studies were affected He mentioned that they had also made two police reports, but the neighbour had still not removed the cameras. So for all the inconvenience, he was asking Pua to pay him RM500,000 as compensation. The judge in the case said that there was no proof that Lew and his family had suffered so greatly due to Pua’s CCTV. Their claims of suffering health problems and trauma were not strong enough. However, the judge did say that the camera WAS an invasion of privacy, especially because it pointed directly at and into their house, and the neighbours could watch them 24x7. He was convinced that the camera was deliberately put there to spy on them because the families had problems with each other. He also said: “The fact that the right to privacy has not been specifically provided for does not preclude a Court of law from holding that such a right exists. Privacy is recognised a fundamental human right internationally.” So, while the court did not grant them the RM500,000 compensation, Pua was ordered to remove the camera and also banned from installing any more cameras in that direction again. READ MORE: [5 annoying things your Malaysian neighbours do that you can sue them for] But what about cameras in public spaces? The judge in the case above actually made a distinction between private and public/semi-private spaces such as malls. He said: In a semi-private setting such as a shopping mall, a member of the public gives up his claim not to be surveilled in return for increased security whilst in that location. In that sense, there is, at least an element of individual choice. - Justice Vernon Ong In other words, those who visit public spaces would be aware that while they are being recorded, this is done for their own security. But on a private property such as a home, the neighbour’s camera that is pointed to their home would be watching them at all times and they can’t escape this...unless they move away. So, you can’t sue a business under private nuisance for having CCTVs on their premises. But while it may be easier for businesses to have cameras for security purposes, the law says that while they can record you, they can’t share the recordings around. Even if you’re suspected of shoplifting in their premises, they can’t just put up your face on social media. If a crime has happened, they’re supposed to make a police report first. As PDRM is usually the one to go through the camera footage, it’s best for business owners to get the green light from them to share it publicly. We mentioned earlier that under the Personal Data Protection Act 2010, businesses/companies are not allowed to share any of their customers data with those outside the business. Section 4 of the Act is pretty long, but basically, it says that ‘data’ covers anything from your name to your billing details, and it can even cover CCTV recordings of you. This was mentioned in 2019 by the then Deputy Communications and Multimedia Minister, Dato’ Eddin Syazlee Shith who said: “Any video recording, including from closed-circuit television (CCTV) cameras in public or private areas, is subjected to the Personal Data Protection Act” - Dato’ Eddin Syazlee Shith, reported by The Star However, this only applies to businesses that are registered with the Department of Personal Data Protection. A business that is registered with this department and still publicly shares CCTV recordings of customers would be committing an offence, which can get them heavily fined or even jailed."
"What is considered an 'illegal gathering' under the RMCO? News on the former PM made the headlines on Tuesday, when he was found guilty for all 7 counts involving SRC International, a subsidiary of 1MDB. Now, Najib’s case isn’t the only thing that got us all hooked to our phones for information, as images of Najib’s supporters flooding the Kuala Lumpur Court Complex, was also a highlight from the case. In fact, this is how we assume Dr Noor Hisham looked like when he saw the images: So here’s one question we repeatedly got from our readers when we posted that meme above: Was the gathering in support of Najib violating the RMCO? Well, we checked with the National Security Council, or better known Majlis Keselamatan Negara (MKN) and here’s what they told us: Gatherings that prevent social distancing are illegal We called up MKN, to check if the SOP was actually breached by the public, when they gathered at the court today. The spokesperson clarified this matter to us: “[Mana mana] pihak yang berkumpul secara ramai di tempat awam, sebenarnya melanggar SOP. Jika ingin menganjur sesuatu majlis keramaian, pihak penganjur sepatutnya ikut SOP...jaga jarak, ambil suhu dan memakai topeng muka...”—MKN’s spokesperson in a phone interview with AskLegal. The spokesperson basically told us that any gathering which did not comply with the SOPs during the Recovery Movement Control Order (RMCO), is considered illegal and those who were a part of the gathering can be punished for it. And since this happened in a public place, specifically in front of the Kuala Lumpur High Court, we wondered if any action can be taken against them—as the gathering was done in a rather, open space. The spokesperson went on to tell us that the PDRM and local council of the area have the authority to fine/arrest those who don’t comply with the SOPs. So far, there’s no news on whether anyone was fined for the gathering during Najib’s case, but the Asst Commissioner of Sentul clarified that the situation was under control and the supporters of the ex-PM were warned to comply with the SOP. Those who violated the MCO will also be fined if they didn’t follow the standard operating procedures. As the SOPs have been constantly changing based on the number of COVID-19 cases, we’ll show you the latest update on the SOP during the RMCO. Here’s what you CANNOT do during the RMCO If you needed a reminder, or didn’t know what exactly are the current SOPs, this list made by the Ministry of Health can clarify it: So based on the list above, gatherings attended by many people—which prevent social distancing and cannot be handled by the authorities are forbidden during the RMCO. The punishment for violating the SOP includes getting fined or arrested by the authorities. The sudden spike in cases on Tuesday (where 39 cases were detected) is pretty worrying as the government is considering to reinforce the MCO, if the cases hit 3-digits. Perhaps the best (or rather, the only) thing we can do right now, is comply with the current SOPs to avoid further spread of the infection."
"Maxis, Digi dan 3 lagi syarikat telco didenda RM4.6 juta... sebab 'servis tak memuaskan'  [Click here for English version] Tak dapat dinafikan yang hampir kita semua pernah ada masalah dengan pihak penyedia perkhidmatan telekomunikasi. Tak kisahlah telco mana yang korang guna, korang mungkin pernah berdepan dengan masalah seperti sambungan, bil dan sebagainya. Kalau perkara macam ni jadi, kita mungkin akan cuba hubungi telco terbabit untuk selesaikan isu ataupun kita cuma tunggu je masalah tu selesai dengan sendirinya. Disebabkan hal macam ni biasa je jadi, korang mungkin tak terfikir yang ia boleh membuatkan telco berdepan masalah. Tapi pada 4 Julai 2020 lepas, Suruhanjaya Komunikasi dan Multimedia Malaysia (SKMM) dah bertindak mendenda 5 buah telco sebanyak RM4.6 juta kerana menyediakan perkhidmatan yang tak mematuhi standard. Telco tu termasuklah: Maxis, Digi, Celcom, Telekom Malaysia dan TIME. SKMM ambil tindakan tu, sesuai dengan tugasnya sebagai badan yang mengawal selia sebarang perkara berkaitan komunikasi dan multimedia di negara ni. Jadinya, antara tugas mereka adalah untuk memastikan syarikat-syarikat dalam industri (telekomunikasi, penyedia internet dan sebagainya) mengikut peraturan yang ditetapkan. Kami akan terangkan kepada korang sebab sebenar kenapa telco-telco ni kena denda nanti. Kalau korang nak tahu, perkara ni bukan kali pertama berlaku, sebabnya – pelbagai telco pernah didenda sebanyak RM2.32 juta pada suku pertama 2019, dan RM3.83 juta lagi pada suku kedua. Kualiti perkhidmatan yang tak memuaskan adalah menyalahi undang-undang Untuk kes telco yang kena denda kali ni – ia adalah dalam suku kedua 2020, di mana 92 kompaun telah dikeluarkan. Korang boleh tengok berapa banyak telco tu kena dan berapa banyak denda yang dikenakan secara individu di sini. Tapi secara asasnya, mereka didenda disebabkan: Prestasi penyelesaian aduan pengebilan (apa sahaja berkaitan bil/caj) Prestasi penyelesaian aduan bukan pengebilan (aduan lain yang bukan melibatkan bil pelanggan) Prestasi pengendalian panggilan (talian hotline pelanggan). Maksudnya, mereka ni kena denda sebab menyediakan perkhidmatan pelanggan yang tak memuaskan; masalah pelanggan dengan perkhidmatan mereka dan bagaimana mereka selesaikan masalah tu. Apa yang menarik, sebenarnya ia satu kesalahan kalau sesebuah syarikat telekomunikasi tu tak menyediakan perkhidmatan yang memuaskan. Jadinya, apa yang SKMM buat tu memang ada asasnya. Ini kerana, SKMM dah tetapkan standard tertentu untuk telco ikut – yang dikenali sebagai Standard Mandatori Bagi Kualiti Perkhidmatan (MSQoS). Korang boleh dapatkan maklumat standard tu di sini. Terdapat juga Kod Pengguna Am (GCC) yang digunakan oleh SKMM untuk menangani aduan pengguna mengenai penyedia perkhidmatan. Panduan ni menetapkan penanda aras yang kena diikuti oleh penyedia perkhidmatan, tapi ia bukanlah undang-undang. Dari sisi undang-undang pula, Akta Komunikasi dan Multimedia 1998 mewajibkan penyedia perkhidmatan untuk mematuhi piawaian yang dah ditetapkan ni. Seksyen 105(3), adalah undang-undang khusus yang digunakan untuk denda ini menyatakan: Seseorang yang tertakluk kepada suatu standard mandatori hendaklah mematuhi standard mandatori itu Akta tu tak secara jelas menyebut tentang apa tu “standard mandatori”, tapi dari panduan yang disebutkan tadi, telco diharapkan ada liputan yang mencukupi, tak mengenakan bil kepada pelanggan secara salah, dan menangani aduan pelanggan dengan baik. Kegagalan berbuat demikian boleh dianggap kesalahan di bawah Akta dan boleh membuatkan penyedia perkhidmatan didenda sebanyak RM100,000 untuk setiap kesalahan. Sekarang, korang mungkin tertanya-tanya apa yang korang boleh buat dengan semua maklumat ni… Anda juga boleh buat aduan ke SKMM Artikel ni sebenarnya bukanlah cuma nak beritahu korang pasal syarikat telco yang kena denda, tapi sebenarnya ia nak beritahu yang korang juga boleh ambil tindakan kalau korang tak puas hati dengan kualiti perkhidmatan yang diberikan. Seperti yang dikatakan di awal tadi, SKMM bertindak sebagai badan yang mengawal selia industri komunikasi dan multimedia di Malaysia. Tugas mereka bukan je hanya melibatkan menguatkuasakan undang-undang terhadap pesalah, tapi juga sedia mendengar aduan pelanggan individu mengenai mana-mana penyedia perkhidmatan dalam industri. SKMM akan ambil tindakan berdasarkan aduan kolektif terhadap penyedia perkhidmatan tersebut. Kalau ikut apa yang ada dalam laman web SKMM, selain dari penyedia perkhidmatan telekomunikasi – mereka juga berurusan dengan aduan membabitkan penyedia perkhidmatan internet dan pengendali TV. Korang boleh dapatkan senarai penuh di sini. Untuk syarikat telco, aduan boleh dibuat kalau kita berdepan dengan keadaan tertentu contohnya seperti liputan rangkaian yang tak memuaskan, bil yang salah, mahupun panggilan terputus. Jadinya, kalau telco korang tak tolong selesaikan masalah yang korang hadapi, korang bolehlah buat aduan kepada SKMM melalui saluran berikut: Portal aduan: http://www.complaint.cfm.org.my Hotline: 1800-18-2222 Emel: aduan@cfm.org.my"
"In Malaysia, what can you do if your condo management increases the maintenance fee? Note: Although this article mentions ‘condo’, this law applies to all strata properties—any high rise residential building such as apartments and flats, as well as gated and guarded single-story communities. Imagine this: You’ve been living in your condo for 5 years now. You dutifully pay your maintenance fee every month, and you have no issues with the management. One fine day, you get an invoice from the management and you see that the fee for this month has been increased by a whopping 50%! This invoice also comes with a letter saying that this will be the new maintenance fee rate from now on. This new rate is obviously going to burn a hole in your pocket, and you don’t even understand why the rate has been hiked up. Generally, it’s understood that your maintenance fee rate is calculated by dividing the total cost of maintaining the place with the number of units in the property. So usually, low-rise condos would charge a higher maintenance fee to cover the operating cost, as there would be fewer units. We previously wrote on whether managements can charge different maintenance fee rates for different types of properties in the same area. But in the instance where your management suddenly wants to increase the rate from what was initially agreed, what can you as a homeowner do about it? The management has the right to set the rate This part can be a little technical, but bear with us. So by now, you would know that the management is the one who’s responsible for imposing and collecting the maintenance fees for your condo. But, the management isn’t just a bunch of people who take care of the property. While their common responsibility is to upkeep the place, the people who consist of the management actually change over time: When your property is completed, the first one to be the management is the developer of the property. After that, they’re legally required to hold an AGM with the residents to hand over the management to the next set of people. This new management is known as the Joint Management Body (JMB). The JMB is made up of the developer and the residents, which now means that the residents can be actively involved in how the place is run. Then third type of management is known as the Management Corporation (MC). This management takes over when the titles to the units have been transferred from the developer to the homeowners’ names. Under this, there’s another type of management known as a Subsidiary Management Corporation (Sub MC). These ones are usually formed when some homeowners want to have their own management for a space that is shared only among them, and not everyone else in the area. But no matter the type of management, the law gives every one of them the responsibility to set up a maintenance account to keep the fees, and you can find the respective laws in the Strata Management Act (SMA) 2013: developer—Section 9 (2a) JMB—Section 23 MC—Sections 50 and 60 Sub MC—Sections 66 But here’s the thing...just because the management is in charge, it doesn’t mean that they can call the shots on their own. The residents’ must agree to the increase If you remember, an AGM is supposed to be held with the residents when a new management takes over from the developer. But this isn’t a one-off thing, as AGMs are supposed to be held every year. Besides having AGMs when transitioning to a new management, these meetings are also needed to discuss issues faced by residents and the management. Managements that fail to do this would be breaking the law, and this is stated in Section 18 of the SMA 2013: (1) It shall be the duty of the developer to convene the first annual general meeting of the joint management body… (2) Any developer who fails to comply with subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both This section above is specifically for developers who are forming the JMB, but the same can be found for MCs in Section 57 of the Act. As we mentioned, important issues that affect the residents and management must be brought up during an AGM. So if the management is planning to increase the maintenance fee rate, this needs to be raised during one of the AGMs and more importantly, it needs to be approved by the majority of the residents. But that’s not all: the management will also need to show why the fee has to be increased. There can be various reasons as to why the fee has to be hiked up, such as new facilities being added, or even the fact that the initial fee was miscalculated. There has to be a list showing the managements’ expenses, so that the residents know that they’re not being overcharged. You’ll have to pay if your neighbours agree to it So, the bottom line is this: if your management increased the maintenance fee with the permission of most of the residents, you will have to pay it. Failing to pay your maintenance fee can lead to your management taking away some access to the property from you. We’ve written several articles on what your management can do if you don’t pay up: [READ MORE: Can Malaysian condo managements block your access card if you don't pay your fees?] [READ MORE: Can the condo management in Malaysia really enter my unit and take my property?] They can even file a case against you in the Strata Management Tribunal, which hears cases on property disputes. If their case is proven to be true, you can be heavily fined. But let’s say you’re not convinced by your management’s reasons to increase the maintenance fee rate. For example, you’ve been asked to pay more because security has been tightened, but you’re still hearing of robberies being rampant in the area, you might have some doubts that the fees are being misused. So, if you feel that the increase in the fee is not justified, you can also file a case against the management in the Strata Management Tribunal. This is a right given to various parties, including homeowners under Section 107 of the SMA which says: No person other than the following persons shall be entitled to file a claim to the Tribunal: (b) purchaser Do note that if you take your case to the Tribunal, you’ll have to represent yourself as lawyers are not allowed. We’re written an article on how you can do this, which you can read here. However, when possible, it’s always best to settle things amicably before taking legal action. So before you go to the Tribunal, try talking to your management to see if they’re willing to reduce the fee to a rate that all parties are happy with."
"If you sue your company and win money from the case, can LHDN tax you for it? Note: Article was originally published on 26 July 2020. Winning court cases can be great. Not only can justice be served, in some cases you’ll even be awarded a good amount of money, courtesy of the party that wronged you. In some cases, a really good amount of money. Recently, we wrote about an employee who was awarded RM1.13 million, after the Industrial Court found her employer guilty of wrongfully dismissing her. Like good, tax paying citizens, after congratulating her on her deserved win, some of us thought: Wait, do you need to pay tax on that money? We did some research, and what we found out is that in some cases, you still can’t escape the tax man. Sorry, you might still get taxed When you’re awarded money by the court, we might think that it’s just payment for damages or compensation. But to LHDN, that money isn’t seen as such. Rather, they’ll see why were you paid that money, and what was the case about. So in short: it depends. Let’s give a quick example. Suppose you were running a shoe company. A client orders 1000 pairs of your shoes, which you promptly delivered. However, when it comes to payment time, your client tells you they can’t pay it, because they’re bankrupt. To solve this, you go to court, and the court takes over your clients property, sells it, then gives the money to you. In this case, the money you received is taxable, as that is your payment (trade receivables) for delivering your goods. But there are situations where you can’t get taxed. Imagine you had a really nice piece of land, which was taken by the government through a court order, so they can build the new MRT line over it. But you weren’t left stranded, as you were given a hefty compensation by the government. In this case, the money earned through that compensation isn’t taxable. This is because you weren’t selling it willingly to a buyer and profiting. Rather, it was a compulsory acquisition. So because it’s not a sale, you can’t be taxed. (FYI: A similar scenario actually happened in a court case in Penang, to determine whether someone needed to pay taxes on his compensation money after his land was acquired by the government) So in general, you need to identify the nature of the case, to know whether the court award is taxable. But now, let’s get more specific... A court award isn’t a gift (according to LHDN) For compensation money earned by employees wrongfully fired, LHDN has already made a specific ruling for it on how it can be taxed. The ruling is called the Compensation For Loss of Employment, Public Ruling No. 1/2012. Inside, it lists a few different scenarios, as well as certain difference tax exemptions if you worked with your employer before 2008. But we’ll give you a simple version to get an idea of how it works. Under the Income Tax Act 1967, compensation from loss of employment is included as gross income from employment. This is stated under Section 13(1)(e): any amount received by the employee, whether before or after his employment ceases, by way of compensation for loss of the employment... So that means that sadly, yes, compensation money earned from court cases for loss of employment is taxable. However, there is an exception: if the employee lost their job due to ill health. Under Schedule 16(15) in the Income Tax Act, it’s stated that the compensation payment will be tax exempted: if the Director General is satisfied that the payment is made on account of loss of employment due to ill-health; For this case, you would need your health condition to be certified in writing by a medical board. That letter would then have to be sent to the Director General of LHDN. Now that we know that, let’s see how much you will be taxed for it. You can get RM10,000 exemption per year of service It’s pretty straightforward. For each completed year of service you worked with your employer, you will be given a tax exemption of RM10,000. That total amount will then be deducted from the total compensation amount. Whatever is left, will then be income that can be taxed. Let’s have a quick example. Suppose you worked with your company from January 2015 to January 2020. You were also given a compensation of RM120,000 by the court. It would look like this: January 2015 – January 2020: 5 years of service. 5 years x RM10,000 = RM50,000 worth of tax exemption RM120,000 - RM50,000 = RM70,000 is your taxable income Do note that the amount of RM10,000 will only be for the year 2008 onwards. Working years before that will be given a slightly lower tax exemption. But even after knowing this, it’s still best that you... Check with the tax man As you can see, whether or not your compensation is taxable can be a tricky subject. So it’s still best for you to check with LHDN or even your friendly local accountant friend. After all, avoiding taxes is a crime in Malaysia, even if you don’t know you’re doing it. Winning one court case might just lead you going to court for another. To contact LHDN, you can call their general hotline at 03-8911 1000, or 603-8911 1100 if you’re calling from overseas."
"Here's 4 things MACC does besides investigating corruption  If you haven’t already heard the news recently, Lim Guan Eng was called in by the Malaysian Anti-Corruption Commission (MACC). They’re investigating a corruption issue involving the RM6.3 billion undersea tunnel project in Penang. Now, we don’t exactly know the basis of this investigation as it’s still at its preliminary stages. But when it comes to MACC, most of us might consider them as cops, but only when corruption takes place. That is somewhat true, but they do more than just catching individuals who suck other people’s—money. To briefly explain what exactly is MACC, its an independent anti-corruption body made up of a diverse group of people. They consist of senior ex-government officials, politicians, professionals from the academic and corporate sector, and even the general public in combating corruption (more on this later). So in this article, we’ll going to be looking at some of the other things they can do, apart from just investigating corruption cases in Malaysia. 1. MACC can reveal offenders’ details on their database The last thing anyone would want, is to be associated with a criminal *Cues Michael Jackson’s Smooth criminal* whether it’s in the context of employment, or just merely being acquaintances. But when you’re hiring someone new, there could be a risk when it comes to this. Especially if you find out years down the road that he/she has been involved in a number of illegal dealings before. Now here’s one way you can get that background check done—by simply looking them up on MACC’s corruption offender’s database. MACC has data on all individuals involved in corruption cases, where their names and category of employment is listed. This way, employers and companies are somewhat protected from hiring the wrong person. The database looks something like this: As you can see, the database allows you to narrow your search by a few filters. You could search the year the offence was committed, the gender of the offender and even just type a keyword. The full name and IC numbers of the offenders are also stated on the database. If you need to do a quick search before hiring someone, click here. 2. MACC can fine companies...and its bosses We previously wrote an article on a new law that was introduced in the MACC Act sometime this year. [READ MORE: MACC can now fine the company AND employer for corruption...even if an employee did it] The Malaysian Anti-Corruption Commission Act 2009 (MACCA) previously only had laws to take action against people who are involved in the corruption scandal. But this new law that was implemented on the 1st June, which now allows MACC to find companies guilty—and not just go after the individuals involved, but also the top management of the company that’s involved in corruption. Section 17A of the MACC Act makes commercial organizations (companies) guilty for ”gratification”— a legal term for things like bribes. But to put it in simpler terms, gratifications are like bribes. Now bribes are one way corruption can happen, but instead of fining just one person for it, MACC now has the power to fine an entire company for an offence made by one person. The only way out for the company, is for the director (or boss) to prove that he didn’t know that the offence was committed. They will also need to prove that they actually put in measures to prevent corruption from happening. This essentially means, that the burden of proof lies with the directors or managers, to show that they had no idea that the company was a part of an illegal business dealing, and that they had actively tried to prevent it. 3. MACC will protect you if you whistleblow MACC is a recognized government authority, that you can report wrongdoings to. Imagine this: You find out that your company has been dealing with some pretty illegal acts, which is making them tons of profit. As much as you want to tell on them, you’re also worried about your safety if you do tell the authorities about them. Well here’s the good news: You can tell MACC about this, and they can give you protection as a whistleblower—which will prevent you from any legal liabilities and disciplinary action. Not just that, your identity is kept a secret as well. [READ MORE: Will you get in trouble if you report a bribe that you paid in Malaysia?] However, there are several terms that you will need to comply with, if you want MACC to protect you. Firstly, you’ll have to be willing to be identified by MACC, which means you should disclose who you are. Next, you should also personally meet the MACC officers if you’re whistleblowing against someone or a company. But if you can’t meet them in person, you can contact them via emails, or phone calls too—however, you must reveal who you are and how they can contact you for further information. MACC also has powers to take what you have because... 4. MACC can seize property if they need to MACC also has the power to seize property, if it’s helpful for the investigation...or even when it’s not. Now before you jump the gun and assume they can simply take something you own without proper reasoning, let us explain. MACC got its powers from the Act, specifically under Section 31. Under this Section, the MACC officer if he thinks necessary can: “(a) enter any premises and there search for, seize and take possession of, any book, document, record, account or data, or other article; (b) inspect, make copies of, or take extracts from, any book, document, record, account or data; (c) search any person who is in or on such premises, and for the purpose of such search detain such person and remove him to such place as may be necessary to facilitate such search, and seize and detain any article found on such person; (d) break open, examine, and search any article, container or receptacle;” So this Section pretty much gives MACC officers the power (which they need to get from the courts first) to search someone or something if there’s a possibility that the evidence will uncover illegal activities. Now what if the court hasn’t given the officer in-charge permission to seize something, but does it anyway? Well they can based on Section 31(3) of the Act which allows the officer to take what he suspects might contain evidence. But this will only work in cases where the officer reasonably believes something is fishy, and needs to get his hands on the deets before it slips away. However, there is a difference when it comes to the type of property, and immovable property such as buildings that will require a Notice of Seizure during the search. So how can you contact MACC? A quick Google search will either bring you to MACC’s official website, or show you their hotline number: 1 800 88 6000. They have also developed a Complaint Management System (CMS) which enables the public to reach out to them, and even check the status of their complaint via the system. Here are some of the things required when making a complaint through the CMS: All you have to do is tell them who was involved in the illegal dealing, what exactly happened and how was it executed. But take note, if you happen to lie or give false information, you can be liable to a jail term up to 10 years and a fine not more than RM100,000 if found guilty."
"A Malaysian employee was unfairly fired, so the company had to pay her RM1.13 million If you were to get fired today—especially, without a solid reason—would you take take your employer to court? This may surprise you, but many Malaysians do file a case with the Industrial Court if they feel they’ve been unfairly dismissed by their employers. As a matter of fact, a Malay Mail article says that 8 out of 10 cases heard in the Industrial Court are on unfair dismissals. Today, we’ll be telling you about one such case that happened in 2019 involving NR, an ex-employee of Petronas. As you’ve read from the title, she won the case and was given RM1.13 million as compensation. So we’ll walk you through the whole saga: how it began in her workplace, how she proved that she was wrongly terminated, and how she was finally compensated for it. How does someone get ‘unfairly fired’ anyway? Before we get into the story, we’ll briefly explain what being unfairly fired or dismissed means. So, your company can fire you for various reasons, such as misconduct and poor performance. [READ MORE: In Malaysia, you CAN get fired for bad performance at work. Here's why] However, your employer would need to prove these things first. If you were fired without a proper reason and you can prove this instead, you can be said to have been wrongfully dismissed. This will then allow you to take action against your employer. According to Section 20 of the Industrial Relations Act (IRA) 1967: (1) Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make Industrial Relations 31 representations in writing to the Director General to be reinstated in his former employment (1A) The Director General shall not entertain any representations under subsection (1) unless such representations are filed within sixty days of the dismissal: Provided that where a workman is dismissed with notice he may file a representation at any time during the period of such notice but not later than sixty days from the expiry thereof. In simpler words, an employee who feels he was fired without a fair reason can file a case against his employer in the Industrial Court—and get his job back. But there’s a time limit: If you plan to do this, you’ll need to file this case within 60 days of being terminated or if you’ve been given a notice, within 60 days of that notice expiring. When the case goes to court, the court will use a two-fold test to prove whether or not the employee was really dismissed unfairly. In NR’s case, the court referred to the case of Auto Sdn. Bhd. v. Wong Seh Yen [1995], where the judge said:, “As pointed out by this Court recently in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] ...the function of the Industrial Court...is to determine whether the misconduct complained of by the employer has been established, and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal.” Simply put, the misconduct has to be proven AND that misconduct has to be bad enough to get you fired. Now that we’ve explained this, we’ll tell you why NR was fired. She had worked with the company for 24 years NR wasn’t someone who’d just joined the company, Petronas—she’d been with them since 1993. She’d started off as a Staff Development Executive with a monthly salary of RM1,590. Over time, she worked her way up the company, earning several promotions. At the time of her termination, she was a Senior Manager and was earning RM25,789 a month, and also had a monthly car allowance of RM1,600. Now, all seemed to be going well, until there was ‘restructuring’ in the company, and a new division was formed. In this new division, NR had a superior named ZZ. Now, NR and some of her colleagues did not see eye-to-eye with this superior. Their division had some internal problems in 2016, and they asked the company HR to help with this, However, the HR told them to sort it among themselves. Shortly after, in early 2017, there was a staff performance review for the previous year. They held a meeting for this, with ZZ being the person in charge. In this meeting, it was decided that NR would be put on a Performance Improvement Plan (PIP) for 6 months. This was surprising, as this was the first time NR had received a warning about her work performance For 23 years, she was said to have an excellent track record and the court later confirmed this. Anyway, she did go on the PIP and was placed under the supervision of another colleague called SB. At the end of the 6 months (April-October 2017), her performance was reviewed again by the company’s People Development Committee. The committee said that they did not see an improvement in her performance. They then told her to continue working under SB. Suddenly in mid-December, she was given an immediate termination notice. Meaning, she would no longer be an employee of the company the next day. Due to the short notice, she was given 3 months’ salary as compensation, together with any unused leave that could be exchanged for cash. The court didn’t buy the company’s story While all this happened in 2017, the case was only heard in the Industrial Court in 2019. As mentioned above, the court said it would use the two-fold test to determine whether NR was unfairly dismissed or not. Based on the test and the facts of the case, the court said that NR was indeed fired without a proper excuse...and they gave the following reasons: In its arguments, the company had said that NR’s performance was bad, and that she also had behavioural problems which had set a bad example for others. To this, the court said that NR had 23 years of excellent work performance which was proven by other people she had worked with. She had also received many promotions throughout the years, which reflected her work ethics. It would not make sense for her to suddenly have an issue in her 24th year. The court said that the company was just trying to paint a bad picture of NR It was obvious that NR and ZZ had a personal spat, which led to NR being put on the Performance Improvement Plan. The court was convinced that the PIP was just used as an excuse to terminate NR NR had tried to seek counselling from the HR with other colleagues when issues with ZZ first cropped up, but nothing was done about this. NR was put under the supervision of SB during the PIP. The court said that there was proof that SB actually did not qualify to be NR’s superior, and that SB would often ask ZZ, the very person who had issues with NR, advice on how to evaluate NR’s work Despite the company saying that NR was no longer fit to do her job, they put her in charge of a major project—contradicting their stance. The court also said that it made this decision in accordance with Section 30(5) of the IRA 1967 which says: The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form. In other words, more than the technicalities of the law, what’s important in deciding the case justly and fairly, would be the important facts of the case. And of course, deciding a case fairly also means granting an appropriate remedy... She wanted her job back, but the court felt it was a bad idea The reason NR filed the case with the Industrial Court was because she wanted her job back. To recap, Section 20 of the IRA 1967 allows someone to file a case against their employer and get the job that they lost back. However, the court felt that based on circumstances, this was not the most suitable remedy for her. So, they decided that she should be given monetary compensation by her ex-employer instead. As mentioned earlier, the company already gave her 3 month’s of salary of compensation. Since she would not be getting her job back, the court asked Petronas to pay her monthly salary of RM25,789 for every year that she worked with them (RM25,789 x 24= RM618,456). NR also could not find another job after being dismissed, and so Petronas was asked to give her backwages for 20 months as well (since they’d already paid her 3 months’ salary). Backwages are basically income that was lost from the time you are terminated, to the day you get a compensated for it. For NR, this amounted to RM515,380 (RM25,769.00 x 20) So, RM515,380 + RM618,456 = RM1,133,836. The court gave Petronas 30 days to pay NR this sum. In case you weren’t aware of this, Industrial Court decisions are final. However, parties can still request a judicial review by the High Court. However, judicial reviews will only look at HOW the decision was made (eg. whether the Industrial Court had the right to decide the case in that way), instead of whether it was right or wrong. Now, if YOU have recently been terminated and you feel it was done without a valid reason, it’s time to make your way to the Industrial Court."
"Kanak-kanak dengan nama ""Bin Abdullah"" mungkin tak perlu gunakannya lagi selepas ni [Click here for English version] [Baca bahagian 1: Apa sebab seseorang tu di-'Bin Abdullah' dan kenapa ada yang lawan isu ni?] Mungkin ada di antara korang pernah baca artikel kami sebelum ni yang menemuramah Rahman dan Aisyah. Ringkasnya, Rahman dan Aisyah ada anak bernama Adam yang dilahirkan 3 bulan selepas mereka berdua berkahwin. Pada masa dia dilahirkan, nama Adam didaftarkan sebagai Adam bin Rahman dengan nota tertulis di bahagian bawah sijil kelahiran: “Permohonan s. 13”. Tapi masa tu, mereka tak ambil tahu sangat tentang nota tu. Sampailah 12 tahun kemudian, apabila mereka dapat tahu maksud sebenar nota berkenaan. Bila Adam masuk umur 12 tahun, mereka pergi ke Jabatan Pendaftaran Negara (JPN) sebab nak buat kad pengenalan (IC) untuk Adam. Tapi kemudiannya, JPN tak benarkan nama Adam didaftarkan sebagai Adam bin Rahman, sebaliknya JPN kata yang anak mereka tu kena di-binkan kepada Abdullah atau lebih tepat – Adam bin Abdullah. Rahman lepas tu buat keputusan membatalkan permohonan IC anaknya, sebab mereka berdua tak tahu macam mana nak terangkan hal tu kepada Adam nanti. Sebab kenapa Adam kena berbinkan Abdullah adalah kerana dua fatwa di Malaysia tentang penamaan dan pewarisan kanak-kanak Muslim yang berstatus tak sah taraf. Di bawah fatwa-fatwa itu, kanak-kanak tak sah taraf kena menggunakan “bin Abdullah” sebagai nama keluarga, kalau anak tersebut dilahirkan kurang 6 bulan dari tarikh ibu-bapanya bernikah. Sebenarnya, kami bincang isu ni balik disebabkan ada keluarga lain yang berdepan dilema sama. Tapi kali ni, mereka buat keputusan untuk saman JPN. Satu keluarga di Johor yang mencabar JPN Sama seperti situasi Rahman dan Aisyah, satu keluarga di Johor ni pun berdepan masalah sama apabila anak mereka tak dibenarkan menggunakan nama bapanya. Permohonan tu adalah untuk membenarkan anak mereka (dikenali di media sebagai NAW) bagi menggunakan nama bapanya (dikenali di media sebagai MEMK). Si bapa, MEMK kemudiannya bertindak menyaman JPN. Mahkamah Tinggi seterusnya membuat keputusan berpihak kepada JPN. Tapi lepas tu, Mahkamah Rayuan membatalkan keputusan Mahkamah Tinggi dan memutuskan bahawa undang-undang jelas mengatakan; nama keluarga anak yang tak sah taraf boleh di-bin/binti kepada sama ada nama ibunya (jika dia memberikan maklumat secara sukarela) atau bapanya (jika dia mendaftarkan dirinya sebagai bapa di bawah Seksyen 13 dan meminta anak itu menggunakan nama keluarganya). Jadinya di sini, Mahkamah Rayuan pada dasarnya memutuskan bahawa Seksyen 13A boleh digunakan dalam kes MEMK untuk membolehkan NAW membawa namanya. JPN kemudian membuat rayuan di Mahkamah Persekutuan dan keputusannya diumumkan beberapa bulan yang lalu. Sebelum kita tengok lebih jauh lagi, korang mesti tertanya-tanya apa yang ada pada Seksyen 13 yang menjadi rujukan tu? Untuk lebih faham tentang isu ni, kita kena tahu dulu yang Seksyen 13 dan 13A Akta Pendaftaran Kelahiran dan Kematian 1957 (APKK 1957), fatwa pada tahun 1981 dan 2003 semuanya mainkan peranan penting. Perkara ni juga ada diterangkan dalam artikel kami tentang keluarga Rahman sebelum ni. Tapi, ni dia ringkasannya: Seksyen 13 APKK 1957 – anak tak sah taraf , tidak ada nama orang yang akan didaftarkan sebagai bapanya melainkan ada permintaan bersama oleh ibu kanak-kanak itu dan orang yang mengaku dirinya sebagai bapa kepada kanak-kanak itu Seksyen 13A(2) APKK 1957 – nama keluarga anak tak sah taraf itu hendaklah nama keluarga ibunya (jika dia secara sukarela memberikan maklumat) atau nama keluarga orang yang mengaku dirinya menjadi bapa kanak-kanak itu mengikut peruntukan Seksyen 13. Fatwa 1981 – anak tak sah taraf mesti ber-bin/binti Abdullah Fatwa 2003 – anak tak sah taraf adalah anak yang dilahirkan dalam tempoh kurang 6 bulan selepas ibu-bapanya bernikah. Kanak-kanak ni tak boleh ber-bin/binti nama mana-mana orang yang mendakwa dirinya bapa kepada kanak-kanak berkenaan. Jadinya, kita fahamlah isu sebenar tentang kes ni. Oleh itu, jom kita tengok pendekatan yang diambil oleh majoriti di Mahkamah Persekutuan. Keputusan Mahkamah Persekutuan pun berbelah bagi Empat daripada tujuh orang hakim yang mendengar dan membuat keputusan tentang rayuan tu bersetuju dengan satu keputuan (yang menjadi keputusan akhir, kerana mendapat majoriti). Manakala, tiga lagi tak bersetuju. Pada asasnya, majoriti hakim Mahkamah Persekutuan, empat berbanding tiga membuat keputusan yang NAW tak sepatutnya diberikan nama keluarga “bin Abdullah”. JPN seterusnya diperintah untuk membuang perkataan “bin Abdullah” dari sijil kelahiran NAW. Tapi ada plot twist dari keputusan ni. Walaupun NAW tak boleh ada “bin Abdullah” di sijil kelahirannya, dia masih tak boleh gunakan nama bapanya MEMK. Korang jangan rasa pelik dulu, sebab Mahkamah Persekutuan ada sebab kenapa buat keputusan tu. Ini kerana… Orang Melayu sebenarnya tak ada nama keluarga Majoriti hakim bersetuju bahawa nota “Permohonan s. 13” yang tercatat dalam sijil kelahiran adalah untuk anak tak sah taraf. Akan tetapi, dalam Seksyen 13A APKK 1957, ada dinyatakan bahawa nama keluarga anak tak sah taraf boleh menjadi ibunya atau seseorang yang mengaku dirinya adalah bapa kepada kanak-kanak terbabit. Bagaimanapun, MEMK tak boleh ambil undang-undang ni untuk digunakan sebagai nama keluarga NAW, sebab… orang Melayu sebenarnya tak ada nama keluarga. Ini kerana, majoriti percaya yang perkataan “bin” atau ‘binti” hanya membawa maksud “anak lelaki kepada atau anak perempuan kepada”. Mereka kemudian membuat perbezaan antara nama peribadi dan nama keluarga. Seksyen 13A, APKK 1957 hanya menyatakan tentang permohonan nama keluarga dan ia tak boleh digunakan bagi membolehkan NAW menggunakan nama MEMK disebabkan nama MEMK adalah nama peribadi. Ini apa yang majoriti kata: ""... menurut saya, nama keluarga merujuk kepada keluarga, keturunan dan nama yang diwarisi, berbeza dengan nama peribadi. Dalam kes ini, MEMK jelas bukan nama keluarga atau nama keturunan atau nama warisan yang biasa dikongsi oleh misalnya, isteri dan semua anggota keluarga. Sebaliknya, ia hanyalah nama peribadinya... Sukar untuk menghargai bagaimana nama peribadi ayah juga boleh menjadi nama keluarga pada masa yang sama ”- Datuk Rohana Yusof, Presiden Mahkamah Rayuan Manakala, tiga hakim yang tak bersetuju mengambil pandangan yang berbeza tentang macam mana nama keluarga harus ditafsirkan. Mereka berpendapat – mengecualikan patronyms (di mana nama bapa menjadi sebahagian daripada nama anak-anak mereka) dari definisi nama keluarga di bawah APKK, membuatkan Seksyen 13A APKK tak akan terpakai untuk sebilangan besar rakyat Malaysia. Inilah yang mereka katakan mengenai Seksyen 13A: “... Seksyen ini memungkinkan untuk pengakuan secara formal atas ayah, untuk tujuan rekod dalam daftar kelahiran ... Oleh itu, objektifnya, aplikasi pendekatan bertujuan untuk pembinaan berkanun akan menghasilkan istilah 'nama keluarga' dalam Seksyen 13A harus ditafsirkan sebagai merujuk kepada nama patronimik dan juga makna Kamus Oxford Inggeris... ia tidak dapat disimpulkan bahawa memandangkan perkataan yang digunakan dalam bahagian tersebut, iaitu 'nama keluarga', keseluruhan bahagian iaitu 13A menjadi tidak dapat digunakan untuk segmen penduduk tertentu. Hal ini terutama berlaku, memandangkan kesimpulan seperti itu menyebabkan ketidakmampuan seluruh bahagian untuk sebagian besar penduduk Malaysia, sehubungan dengan suatu Akta yang mempunyai aplikasi, sebagaimana diumumkan oleh Parlimen, kepada semua warganegaranya” – Datuk Nallini Pathmanathan, Hakim Mahkamah Persekutuan. Pada asasnya, perbezaan pandangan yang diambil oleh majoriti dan minoriti di Mahkamah Persekutuan menunjukkan bagaimana mereka memilih untuk menafsirkan undang-undang. Majoritinya mengambil pendekatan literal (dengan makna perkataan), manakala yang minoriti pula mengambil pendekatan bertujuan (iaitu mentafsirkan perkataan dengan cara memungkinkan tujuan undang-undang dipenuhi). Tapi, kita juga diberitahu tadi tentang beberapa fatwa yang menjadi punca isu ni berlaku. Maka soalan seterusnya kepada Mahkamah Persekutuan adalah: Patut ke JPN menggunakan undang-undang syariah dalam menentukan nama akhir kanak-kanak? Jawapannya… Ya, boleh Jawapannya nampak mudah je: disebebabkan mereka orang Islam, maka dah sah-sahlah mereka kena ikut apa yang ditetapkan oleh undang-undang syariah. Bagaimanapun, dalam artikel kami sebelum ni tentang Rahman dan Aisyah, kami ada terangkan macam mana undang-undang syariah dan undang-undang persekutuan yang tak sepadan antara satu sama lain. Secara ringkasnya, fatwa pada tahun 1981 dan 2003 ada menetapkan macam mana untuk menamakan kanak-kanak yang berdepan konflik dengan Akta Pendaftaran Kelahiran dan Kematian (APKK). Dua fatwa ini hanya membenarkan anak tak sah taraf di-bin/binti dengan nama “bin Abdullah”, sedangkan APKK membenarkan penggunaan sama ada nama keluarga ibu atau bapa. Tapi, memandangkan undang-undang ni berdepan dengan konkflik, mana satu yang mereka kena ikut? Undang-undang syariah atau undang-undang persekutuan? Jadinya, ini adalah kedudukan yang diambil oleh majoriti di Mahkamah Persekutuan: ""Oleh itu, dengan ketetapan perlembagaan, umat Islam di negara ini dikenakan undang-undang umum yang digubal oleh Parlimen dan juga undang-undang Islam yang digubal oleh Badan Perundangan Negeri."" - Datuk Rohana Yusof, Presiden Mahkamah Rayuan Maka pada asasnya, majoriti hakim membuat keputusan yang mereka kena ikut kedua-dua undang-udang iaitu persekutuan dan syariah. Bagaimanapun, hakim-hakim yang tak bersetuju mendapati Perlembagaan Persekutuan secara khusus menjadikan pendaftaran kelahiran dan kematian sebagai perkara yang harus diatur oleh undang-undang Persekutuan saja. Dengan kata lain, undang-undang Islam Negeri tidak terpakai dalam isu membabitkan pendaftaran kelahiran dan kematian. “...APKK 1957 adalah, untuk semua maksud dan tujuan, undang-undang persekutuan yang menguruskan perkara yang termasuk dalam Daftar Persekutuan iaitu, pendaftaran kelahiran dan kematian ... .undang-undang Islam tidak memiliki aplikasi dalam hal pendaftaran kematian dan kelahiran. "" - Datuk Nallini Pathmanathan, Hakim Mahkamah Persekutuan Pada masa ni, korang mungkin bertanya-tanya, kalau undang-undang Islam negeri yang terpakai, kenapa NAW tak diberikan “bin Abdullah”? Setiap negeri ada undang-undang syariah masing-masing Dalam kes MEMK, JPN merujuk kepada fatwa 1981 dengan memberikan “bin Abdullah” kepada NAW. Bagaimanapun, fatwa pada tahun 1981 ni dibuat oleh Jawatankuasa Fatwa Kebangsaan, dan ia tak diwartakan (diberi status undang-undang) di Johor. “Pandangan Jawatankuasa Fatwa Kebangsaan atau fatwa menjadi undang-undang di Negeri Johor akan mengikat secara sah hanya sekiranya diwartakan dalam Warta Negeri di bawah Seksyen 49 Enakmen Pentadbiran Agama Islam (Negeri Johor) 2003 (Enakmen No. 16 Tahun 2003). Enakmen itu mensyaratkan bahawa fatwa menjadi undang-undang dan hanya memiliki penguatkuasaan hukum setelah diwartakan dan ketentuan mengenai prosedur membuat fatwa dinyatakan dalam Seksyen 48. "" - Datuk Rohana Yusof, Presiden Mahkamah Rayuan Setiap negeri di Malaysia diberikan kuasa untuk menggubal perundangan mengenai undang-undang Islam. Undang-undang Islam ini merangkumi perkara seperti pewarisan, perkahwinan, perceraian dan sah taraf. Tapi, tak semua negeri terima fatwa 1981. Untuk mejadikannya sebagai undang-undang di Johor, fatwa tu mesti diwartakan di bawah enakmen Johor (undang-undang negeri) yang releven dan dihebahkan. Disebabkan Johor tak terima fatwa tentang menamakan anak tak sah taraf ni, JPN tak boleh gunakan fatwa 1981 dalam isu MEMK dan NAW. Kalau buat macam tu juga, JPN boleh dianggap bertindak di luar bidang kuasanya. Walaupun undang-undang Islam boleh dirujuk dalam mendaftarkan kelahiran kanak-kanak Muslim, ia mesti terlebih dulu menjadi undang-undang dalam negeri tersebut. Minoriti juga dah bersetuju dengan kedudukan yang diambil iaitu tak ada asas untuk menetapkan NAW dengan “bin Abdullah”, walaupun dengan alasan yang sikit berbeza, yang kami tak ceritakan lebih lanjut dalam artikel ni. Jadi apa yang kita boleh ambil dari isu ni? Ringkasnya,sekarang ni undang-undang yang kita dapat fahami adalah seperti berikut: Orang Islam tak ada nama keluarga dan tak boleh merujuk pada Seksyen 13A, APKK 1957. Orang Islam akan tertakluk dalam undang-undang Islam setiap negeri untuk pendaftaran kelahiran. Kalau negeri masih belum mewartakan undang-undang yang menetapkan “bin Abdullah”, kanak-kanak terbabit tak boleh diberikan nama “bin Abdullah”. Jadinya, sama ada kanak-kanak yang tak sah taraf akan diberi nama “bin Abdullah”, ia bergantung kepada undang-undang syariah di negeri berkenaan. Untuk kes MEMK dan NAW, JPN dah diperintahkan untuk membuang ""bin Abdullah"" dari nama NAW. NAW sekarang hanya ada nama yang diberikan, tanpa nama bapa atau nama keluarga lain. Senang cerita, contohnya nama anak korang tu Muhammad Ali, dan JPN kata kena letak ""bin Abdullah"". Tapi lepas tu JPN kena buang ""bin Abdullah"" atas perintah mahkamah. Maka, nama anak korang tu cuma tinggal nama rasmi je iaitu “Muhammad Ali” tanpa nama bapa."
"In Malaysia, are illegitimate children allowed to inherit their parent's property? If you’ve been an avid AskLegal reader, you might have come across our article on how a 6 year-old boy sued the Malaysian government, because he was considered an illegitimate child. Now this story is just one of the many stories that involve illegitimate children in Malaysia. As a short recap, the boy was considered stateless and could not be adopted due to his illegitimacy. In this article however, we’ll be looking at a whole different issue involving illegitimate children in the event you find out...you’re related to one. So imagine this: Your father is living some of his final days. One day he tells you that you actually have a half-sister, from his other family. And to make things even more complicated, he tells you that he wants your half-sister to own his property, just like how you have a share in it. He passes away, and now you’re left wondering whether your half-sister has the right to claim her share of your father’s property too. But before we answer that, let’s look at how the Malaysian law views illegitimate children. Illegitimate children have restricted rights Things have never been easy for illegitimate children. The law defines an illegitimate child as children born out of wedlock. We previously wrote an article on the ‘Bin Abdullah’ children, and how there’s a difference between civil laws and Islamic laws—when it comes to registering an illegitimate child in Malaysia. Section 13(2) of the Births and Deaths Registration Act 1957 (“BDRA 1957”) states that when there is a registration of birth of an illegitimate child, the Registrar does not have to record down the details of the father. They will only do so when the mother and the person claiming to be the father of the child requests for the father’s name to be recorded: “The surname, if any, to be entered in respect of an illegitimate child may where the mother is the informant and volunteers the information, be the surname of the mother; provided that where the person acknowledging himself to be the father of the child in accordance with section 13 requests so, the surname may be the surname of that person.” So under civil laws, the birth registration of an illegitimate child—with acknowledgement of the father—is possible. However under Islamic laws, fatwa and its legal position has to be looked into, when it comes to matters involving illegitimate children. [READ MORE: The untold story of the ""bin Abdullah"" children in Malaysia] Now, there are lots of things that illegitimate children might not be able to get, such as not being able to have their own bank account or buy their own property. But how does the law work, if they want to inherit their share of a property left behind by their parent(s)? They can inherit property under certain circumstances In the event an illegitimate child comes forward to claim property, there will be several things that the person needs to prove in order to do so. Section 11 of the Legitimacy Act 1961 states: “...Where, on or after the prescribed date the mother of an illegitimate child, the child not being a legitimated person, dies intestate as respects all or any of her property, and does not leave any legitimate issue surviving her, the illegitimate child, or if he is dead his issue, shall be entitled to take any interest therein to which he or his issue would have been entitled if he had been born legitimate.” The Act essentially says that an illegitimate child can only claim property belonging to his/her mother, and the mother of the illegitimate child does not have any legitimate children...alive. 😈 (Disclaimer: AskLegal isn’t giving ideas on what you can do to claim your share in the event this happens.) So, as long as an illegitimate child does not have other half-siblings who are considered legitimate under the law, and the property in question belongs to his/her mother—the property can be claimed by the illegitimate person. But here’s something that might help... Writing a will might be useful in this case Cases involving property and inheritance have always been subjective. Depending on the situation, the way the inheritance is distributed can be different, as well as the laws that apply to the case. In fact, you’ll always hear lawyers and sometimes even banks, asking you to write a will if you own any property. The laws are already tough on illegitimate children. But writing a will to distribute property accordingly will really help in cases as such. So it’s definitely best to get in touch with a lawyer to help you out, to avoid sticky situations like this."
"4 ways Malaysians can permanently lose their citizenship If you’re Malaysian, you would likely have these two documents that prove your citizenship: your MyKad and Malaysian passport. Citizenship laws in Malaysia are both complex and extensive, and you can read all of them in the Federal Constitution (the greatest of all Malaysian laws). Due to its complexity, for this article we’ll only be discussing the ways Malaysians can lose their citizenship. Before we get to that, you should know that there are two ways to become a citizen in Malaysia: birth/registration—when you’re born to Malaysian citizens and your parents register your birth here naturalisation—you weren’t a citizen from birth but became one later after fulfilling the criteria set by the government It doesn’t matter how you got your citizenship, because the laws on removing citizenship would apply to both methods. Now, most of us might not think that suddenly losing our citizenship could be a possibility. But it’s worth noting that one’s citizenship being removed isn’t that uncommon. But if it does happen, here’s how it’s done under the Malaysian law. 1. You can renounce it yourself Before we get to how the government can revoke (take away) your citizenship, let’s look at how citizens can renounce (give up) that citizenship. An article by our sister company, Cilisos said that every year, nearly 5,000 Malaysians opt out of being a citizen. And this is allowed under Article 23 of the Federal Constitution, which says: (1) Any citizen of or over the age of twenty-one years and of sound mind who is also or is about to become a citizen of another country may renounce his citizenship of the Federation by declaration registered by the Federal Government, and shall thereupon cease to be a citizen. So as you can see, the requirements are pretty straightforward. On Jabatan Pendaftaran Negara (JPN)’s website, it states that together with these requirements, there’s also a list of documents that you have to submit if you want to cancel your citizenship, which you can read here. This will include the application form to renounce your citizenship—which is called Form K. You’ll also have to pay a small fee of RM10 when submitting your application. As stated above, one of the requirements for renouncing your citizenship is that you must you have gotten citizenship elsewhere or you’re on your way to getting one. And this makes sense, because you if you gave up your current citizenship without having another one elsewhere, you would be stateless. In other words, you wouldn’t be able to freely live in any country. But what if you want to keep your Malaysian citizenship AND your new citizenship? Unfortunately, this isn’t allowed...which leads us to the next point. 2. The govt finds out you have citizenship elsewhere Malaysia doesn’t recognise dual-citizenship. Meaning, you can’t be a citizen of Malaysia AND another country...even if the other country allows for it. The government is allowed to cancel your Malaysian citizenship if they find out that you’re a citizen elsewhere. You’ll be given the choice to pick between Malaysian citizenship and the other country’s citizenship. But if you fail to make this choice, you lose your Malaysian citizenship. Article 24 of the Federal Constitution explains this, and it says: (1) If the Federal Government is satisfied that any citizen has acquired by registration, naturalization or other voluntary and formal act (other than marriage) the citizenship of any country outside the Federation, the Federal Government may by order deprive that person of his citizenship. (2) If the Federal Government is satisfied that any citizen has voluntarily claimed and exercised in any country outside the Federation any rights available to him under the law of that country, being rights accorded exclusively to its citizens, the Federal Government may by order deprive that person of his citizenship. The first part of the law above is clear-cut and it just confirms that a second citizenship outside of Malaysia can invalidate your Malaysian citizenship. The second part says that a Malaysian who lives in another country cannot exercise rights that are only for the citizens of that country. If they do, they can lose their Malaysian citizenship. This is because by exercising the rights that are only for citizens of that country, they can be said to have assumed citizenship there. Clause 3A of the same Article 24 gives an example of this: Without prejudice to the generality of Clause (2), the exercise of a vote in any political election in a place outside the Federation shall be deemed to be the voluntary claim and exercise of a right available under the law of that place; So, even voting in the elections of another country can amount to you taking on the citizenship of another country, as things like voting are specifically for the citizens of a country. It’s important to note that Malaysians are allowed to have a permanent residency (PR) in other countries. This is because a PR does not give you citizenship in a country—it merely allows you to stay there permanently. 3. You are disloyal to the country ‘Disloyal’ can mean a lot of things, but in this context it means that you went against the interests of the country. Article 25 states many instances of this. It’s a long list, so we’ll summarize it for you: You had done or said something that is considered to be disloyal towards the country If Malaysia was at war with another country, you had betrayed her by secretly sending information to the other country Within 5 years of getting citizenship, you’ve been given a jail term in another country of more than 12 months, or fined more than RM5,000 (or the equivalent of that country’s currency)…and you’ve also not been pardoned/excused from that offence You’ve taken up a government or official post in another country without the approval of the Malaysian government, or any post that requires you to make an oath to the another country You lived in another country for 5 continuous years or more without the Malaysian’s government knowledge, and you weren’t there on government business...and you didn’t register with the Malaysian embassy there to keep your citizenship Being disloyal might sound like a good reason for the government to take away someone’s citizenship. But what if you never did anything illegal and your citizenship is taken away due to someone else’s mistake? Believe it or not, this is also another reason for the government to revoke your citizenship. 4. You were ‘accidentally’ given citizenship... ...or you’re got it through fraud. These are two very contrasting reasons, but they’ve both been lumped together under Article 26 of the Federal Constitution, which says: (1) The Federal Government may by order deprive of his citizenship any citizen by registration or by naturalization if satisfied that the registration or certificate of naturalization— (a) was obtained by means of fraud, false representation or the concealment of any material fact; or (b) was effected or granted by mistake. If you’re wondering how citizenship can be ‘accidentally’ granted, this mostly happens due to clerical and documentation errors. There was a case of a Malaysian woman who was granted citizenship in the 70s, but it was revoked in the 80s because they discovered that JPN had made an error. On the other hand, citizenship that was granted due to fraud means that the applicant had been dishonest when applying for citizenship. Another example of this would be fake MyKads. If the government comes to know of this later, they can take that citizenship back at any time, even if the person has lived in Malaysia for years. It isn’t easy for the govt to take away your citizenship While the Federal Constitution has listed several reasons someone’s citizenship can be taken away, it also sets some rules for the government to follow before doing so. Article 26A of the Federal Constitution says that a person’s citizenship can be removed only if the “Federal Government is satisfied that it is not conducive to the public good that he should continue to be a citizen”. Then Article 27 sets out the procedure that the government should follow: a notice must be given to the person whose citizenship might be removed, and it should include the reason for removal. The person must have the right to have a committee of inquiry to investigate the case. if he chooses to have this committee, the government has to appoint 2 members and one chairman to hear the case the government will have to make its decision based on the investigation of this committee Some of these laws that you’ve read may have been too heavy to understand all at once, but the main thing to remember is this: to retain your Malaysian citizenship, you can’t be a citizen of another country or go against the interests of Malaysia. Also make sure that your citizenship hasn’t been acquired illegally, and that there was no mistake during registration."
"Kalau penyewa tak bayar sewa, apa yang tuan rumah boleh buat? [Click here for English version] Sejak kebelakangan ni, kita dilaporkan tentang pasaran hartanah yang terus mencabar, terutamanya dengan lambakan rumah baru yang tak terjual. Bagaimanapun, tak dapat dinafikan juga ramai di kalangan kita yang menjadikan hartanah sebagai salah satu sumber pendapatan. Kalau dah jadi tuan rumah ni, antara masalah yang selalu kita hadapi dah semestinya penyewa-penyewa yang liat sangat nak bayar sewa. Dalam keadaan tertentu, alasan-alasan yang diberikan tu bolehlah kita terima. Tapi ada juga yang bagi alasan-alasan yang tak munasabah. Jadinya, mulalah kita cari jalan macam mana nak minta mereka ni bayar sewa. Kalau korang ada terfikir nak hantar peluru atau gangster pukul mereka, baik korang lupakan je. Sebabnya, semua tu salah di sisi undang-undang dan korang sendiri boleh dapat masalah nanti. Lebih menyusahkan bila penyewa tu lari tanpa dikesan dan korang pula tanggung kerugian. Jadinya, antara cara terbaik yang korang boleh cuba untuk selesaikan masalah ni adalah guna cara undang-undang yang betul. Cara ni dah pasti akan membantu tuan rumah, kalau penyewa tak bayar sewa. Tapi, korang jangan cari peguam dulu. Sebab… Kontrak anda tu SANGAT penting! Pertama sekali, hubungan antara tuan rumah dan penyewa tu sebenarnya adalah satu kontrak. Jadinya, segala maklumat seperti – jumlah sewa, tempoh masa, batasan dan remedi boleh kita tengok dalam perjanjian sewaan atau pajakan yang ditandatangani oleh kedua-dua pihak. Korang juga boleh rujuk dengan agen hartanah masing-masing untuk nak faham lagi terma-terma yang ada dalam perjanjian dan apa langkah yang korang boleh buat. Tapi sebelum tu, kita kenalah tahu dulu apa yang dimaksudkan dengan ‘sewa’ dan ‘pajakan’ ni. Di bawah undang-undang Malaysia, sewa dan pajakan ni lebih kurang sama je. Cumanya, ‘sewa’ bermaksud korang menyewakan hartanah selama tak lebih 3 tahun, manakala, ‘pajakan’ pula lebih 3 tahun. Selalunya, pajakan ni lebih biasa dibuat untuk penyewaan perniagaan komersil daripada tempat kediaman. Keduanya, sebelum korang ambil tindakan undang-undang, korang kenalah buat permintaan formal secara bertulis dulu untuk tuntut tunggakan sewa yang belum bayar. Caranya, korang bolehlah guna apa yang korang selesa – macam surat, e-mel atau mesej Whatsapp. Korang juga disarankan untuk ambil screenshot atau gambar surat/mesej yang korang bagi tu. Sebabnya, korang bolehlah gunanya nanti sebagai bahan bukti nant. Korang juga boleh minta penjelasan, bila penyewa mengaku dia terima surat/mesej tu. Dalam surat tu, korang kena tulis secara jelas apa yang korang nak. Perkara tu termasuklah – permintaan kepada penyewa untuk membayar amaun sewa tertunggak dalam tempoh masa yang munasabah, atau penyewa kena kosongkan rumah kalau gagal berbuat demikian. Cuma selepas korang nyatakan tuntutan tu secara jelas, barulah korang boleh tengok pada remedi. Kalau korang dah hantar surat tuntutan dan penyewa masih lagi tak bayar. Tindakan biasa yang orang selalu buat adalah usir penyewa tu dari rumah dan cari penyewa lain. Tapi soalannya, macam mana korang nak usir penyewa tu secara betul dan sah? Tuan rumah tak boleh usir penyewa secara paksa Contohnya keadaan macam ni – korang dah hantar surat tuntutan, tapi penyewa masih tak nak keluar dan masih tak bayar sewa. Korang yang rasa tak puas hati ni pun datang ke rumah penyewa tu dan halau mereka keluar dari rumah. Lepas tu kunci pintu. Tapi hakikatnya, korang mungkin akan dapat masalah dengan buat benda ni. Sebabnya, Seksyen 7(2), Akta Relief Spesifik 1950 menyatakan: Jika sesuatu harta tak alih spesifik telah disewakan di bawah sesuatu penyewaan, dan penyewaan itu ditamatkan atau telah berakhir, tetapi penghuni itu masih terus menduduki harta itu atau sebahagian daripada tanah itu, orang yang berhak kepada milikan harta itu tidak boleh menguatkuasakan haknya untuk mendapatkan harta itu kembali terhadap penghuni itu melainkan dengan prosiding di mahkamah. Seksyen ni secara mudahnya beritahu, yang korang tak boleh ambil hartanah korang balik tanpa adanya perintah mahkamah. Mendapatkan perintah mahkamah ni bermakna korang kena tamatkan perjanjian penyewaan dan mula melibatkan peguam. Peguam korang tu nanti akan tolong korang saman penyewa untuk mendapatkan sewa yang tertunggak dan minta perintah mengosongkan premis. Hanya apabila mahkamah dah memberikan perintah itu, barulah korang boleh dapatkan balik hartanah korang tu. Kalau terjah masuk je dalam premis, korang ada risiko kena saman dengan penyewa sebab menceroboh! Walaupun korang berhujah yang hartanah tu korang punya dan penyewa tak bayar sewa, hujah tu masih lagi tak boleh pakai. Dalam kes Abdul Muthalib Hassan v. Maimoon Hj. Abd. Wahid [1992] 1 CLJ 88, mahkamah memutuskan tindakan tuan rumah mengunci premis sebab penyewa tak bayar sewa sebagai satu pencerobohan. Malangnya, nak mendapatkan perintah mahkamah tu boleh makan masa dan kos. Lebih-lebih lagi bila penyewa tak datang ke mahkamah atau korang tak nak guna peguam (sebab yuran guaman yang mahal). Jadinya, antara cara lain yang korang boleh cuba adalah potong bekalan air penyewa. Cumanya, korang hanya boleh buat benda ni, kalau ia ada dalam perjanjian sewaan. Maknanya, kalau dalam perjanjian ada kata yang tuan rumah boleh potong bekalan air penyewa kalau tak bayar sewa, barulah korang boleh buat. Cara ni mudah sikit, sebab korang tak payah pergi ke mahkamah atau ambil peguam. Cara ni pernah disokong dalam kes Premier Model (M) v. Philepromenade Sdn Bhd [2001] 1 LNS 173. Akan tetapi, walaupun kita dah tahu cara nak keluarkan penyewa yang tak bayar sewa, ada ke cara nak dapatkan balik duit sewa yang diorang tak bayar tu? Korang boleh sita rumah tu! Untuk dapatkan duit korang balik, korang boleh rujuk Akta Kehilangan 1951. Melalui akta tu, tuan rumah dibolehkan menyita untuk dapatkan sewa yang belum dibayar. Secara mudahnya, tuan rumah boleh merampas barang-barang penyewa dan menjualnya untuk tujuan menuntut tunggakan. Tapi sekali lagi diingatkan, ni tak bermakna yang korang boleh terus pergi ke rumah tu dan ambil henpon dan laptop mereka. Seksyen 5(1) Akta Kehilangan 1951 menyatakan – korang kena buat permohonan dulu kepada hakim untuk keluarkan waran sebelum boleh buat benda tu. Perkara ni boleh dikatakan sebagai tindakan khusus yang tuan rumah boleh buat terhadap penyewa tanpa menamatkan perjanjian sewaan. Maknanya, korang tak perlu tamatkan sewaan sebelum mulakan tindakan ni. Tambahan lagi, dalam Seksyen 28(4), Akta Undang-Undang Sivil 1956 mengatakan, tuan rumah boleh menuntut sewa dua kali ganda kepada penyewa dari tamat tempoh pengusiran sehingga hartanah itu diserahkan kepada tuan rumah. Ia dinyatakan: ""(a) Setiap penyewa dipegang selepas penentuan penyewaannya akan dikenakan, atas pilihan tuan rumahnya, dengan dua kali ganda jumlah sewa sehingga pemilikan diberikan kepadanya atau dengan dua kali ganda nilai itu dalam tempoh penahanan tanah atau premis yang ditahan sedemikian, sama ada notis mengenai hal itu telah diberikan atau tidak.” Tapi bila difikirkan balik, kalau dari awal lagi penyewa tu memang tak nak bayar sewa – cara ni bertambah susah lah. Akhirnya, kalau jumlah amaun yang tak dibayar tu kurang dari RM5,000, korang sebenarnya boleh tengok pada prosedur tuntutan kecil. Caranya lebih mudah sebab korang tak payah ambil peguam. Korang boleh baca macam mana prosedurnya di sini. Moral dari semua penerangan ni… Bacalah perjanjian sewaan korang tu baik-baik Seperti mana yang kita dah nampak, tak ada banyak perkara yang kita boleh buat dalam isu tuan rumah dan penyewa ni. Akta Kehilangan 1951 boleh dikatakan sebagai satu-satunya undang-undang khusus yang boleh menangani isu ni. Secara realitinya, bawa kes ke mahkamah tu mungkin akan jadi pilihan, tapi korang kenalah bersedia dengan kos dan masa. Dan korang juga disyorkan supaya buat laporan polis dulu sebelum minta penyewa tu keluar. Tindakan ni boleh kata sebagai langkah berjaga-jaga dan nanti polis bolehlah kawal keadaan kalau jadi apa-apa perkara yang tak diingini. Korang juga disarankan untuk ambil gambar atau rakam apa yang jadi, sebagai usaha melindungi diri daripada sebarang tuntutan kecurian atau penyalahgunaan barang milik penyewa. Kalau korang ada lantik agen, lebih baik korang dapatkan bantuan dari agen tu untuk selesaikan sebarang pertikaian. Pada akhirnya, korang kenalah buat perjanjian sewaan yang betul-betul baik sebelum menyewakan hartanah korang. Pastikan juga yang perjanjian tu akan melindungi hak korang sebagai tuan rumah dan sediakan perlindungan yang perlu kalau penyewa tak bayar sewa nanti."
"Sebab-sebab kenapa kita tak boleh gunakan JATA NEGARA sesuka hati [Click here for English version] Seperti mana yang kita semua dah dengar, baru-baru ni kecoh tentang penerbit buku yang disiasat kerana mengubah suai Jata Negara Malaysia di buku mereka. Buku bertajuk “Rebirth”, terbitan Gerak Budaya itu kemudiannya diharamkan dan 313 naskhah dah dirampas dari sejumlah 1,000 buah buku yang telah dicetak. Tindakan ni diambil kerana buku berkenaan dianggap dah menghina Jata Negara. Sebenarnya, gambar di atas kulit buku itu adalah karya lukisan artis tempatan Shia Yih Yiing, dan lukisan tu juga pernah dipamerkan di galeri tempatan pada 2014. Tapi masa tu, tak ada apa-apa aduan yang dibuat. Apa yang pasti, sekarang ni tumpuan masyarakat mula terarah pada Jata Negara. Dan persoalan pun timbul, kenapa mengubahsuai Jata Negara boleh dianggap jenayah dan sebagai menghina? Lebih dari tu, kita juga nak tahu apa yang undang-undang kata dengan perkara ni. Dan jawapannya mungkin lebih dari mengatakan Jata Negara itu sebagai simbol semata-mata. Ia bermula dari medan perang Eropah Sama seperti undang-undang kita, penggunaan Jata Negara juga sebenarnya diambil dari British. Walaupun di Malaysia sekarang ni melihat lambang tu sebagai Jata Negara secara keseluruhannya… ia sebenarnya bukanlah macam tu. Ini kerana, pada asalnya ia hanya dikenali sebagai heraldry (ilmu lambang) yang hanya merujuk kepada reka bentuk perisai. Tapi keseluruhan lambang yang lengkap dengan adanya harimau dan motto pula dikenali sebagai pencapaian heraldik. Walaupun korang tak tahu apa namanya yang betul, korang mungkin pernah nampak lambang macam ni dalam filem atau rancangan TV seperti Game of Thrones. Secara amnya, ia merupakan lambang untuk seseorang sama ada raja, bangsawan atau kesateria. Untuk sesebuah negara menggunakannya, ia dianggap sebagai simbol negara. Menurut Hakim Sutton yang mengkaji tentang heraldry. “Jata berfungsi sama seperti logo dan tanda dagang (trademark). Ia menunjukkan yang benda itu milik seseorang, atau berasal dari negara tertentu. Kita boleh tahu kerana jata itu memberikan rujukan visual yang jelas dan dapat dikenali secara mudah.” – Hakim Sutton, katanya melalui temubual WhatsApp. Namanya pula datang dari penggunaannya di medan perang Eropah. Pada awal abad pertengahan, para kesateria selalunya akan memakai baju besi dari atas sampailah ke bawah. Disebabkan hal itu, agak susah nak membezakan mereka ni rakan atau lawan, masa di medan perang. Jadinya, untuk selesaikan masalah ni, mereka pun pakai lambang tertentu untuk memudahkan mereka dikenal pasti. Dan masa inilah munculnya jata. Reka bentuknya pula khas dan mereka tak boleh ada rekaan sama dengan orang lain. Malah, disebabkan sebilangan besar orang pada masa itu buta huruf, maka dengan adanya simbol visual ni, tidak perlulah susah-susah nak mengajar rakyat untuk membaca. ""Seseorang mungkin tak dapat membaca tetapi semua orang dapat mengenali lambang. Sebilangan besar negara mempunyai jata atau emblem. Perbezaan antara emblem dan jata adalah yang pertama tidak mengikuti peraturan heraldry. Kesamaannya ialah kedua-duanya melambangkan identiti sebuah negara. "" - Hakim Walaupun tujuannya untuk mengenal pasti sebuah negara, tak semua orang dibenarkan untuk menggunakan lambang tersebut. Jata adalah milik raja Bendera dan jata sebenarnya hampir serupa, sebab kedua-duanya digunakan untuk mewakili dan mempamerkan identiti negara kita. Malah, jata juga boleh digunakan sama seperti bendera. Pada zaman abad pertengahan, sesiapa yang ada jata akan meletakkan lambang itu di panji yang kemudiannya disesuaikan dalam reka bentuk bendera. Sebab itulah ada beberapa negara yang menggunakan jata dalam bendera mereka. Majoriti negara pula akan ada dua-dua iaitu bendera dan jata, tapi bukanlah kemestian. Bagaimanapun, untuk negara beraja – selalunya negara tu akan ada kedua-duanya. Contohnya macam United Kingdom yang ada Jata Negara Diraja dan bendera, Union Jack. Sama seperti Malaysia yang ada Jata Negara dan Jalur Gemilang. Akan tetapi, hanya seorang je yang dibenarkan mempamerkan jata-jata tertentu sebagai pemiliknya. Dan di negara kita, pemilik Jata Negara adalah raja kita. ""Dalam raja berperlembagaan seperti Malaysia dan United Kingdom, kerajaan menjalankan kuasa atas nama Kebawah Duli Yang Maha Mulia Raja, makanya itulah mengapa kerajaan sering menunjukkan identitinya di bawah Kedaulatan. Kita orang biasa tidak berhak menggunakannya atau mempamerkannya di panji jata.” – Hakim. Jadinya, selain raja – hanya kerajaan kita saja yang dibenarkan menggunakan Jata Negara. Untuk orang lain, korang kena dapatkan kebenaran bertulis daripada kerajaan. Di Malaysia, menggunakan Jata Negara tanpa kebenaran boleh dianggap sebagai satu kesalahan yang boleh dihukum di bawah Akta Lambang dan Nama 1963. Walaupun begitu, rakyat masih dibenarkan untuk menggunakan bendera, kerana ia bertujuan untuk menunjukkan solidariti terhadap negara. Ia juga tak akan dikenakan undang-undang yang sama dengan Jata Negara. Akan tetapi, masih ada undang-undang yang korang kena patuhi ketika menggunakan bendera. [BACA LAGI: These 2 Malaysian laws have been protecting our National Flag and Anthem for 54 years] Kenapa penting untuk melindunginya? Bila seseorang selain raja dan kerajaan yang menggunakan Jata Negara, adakah ia sebenarnya lebih kepada isu tanda dagang (trademark) ataupun kesalahan menghina raja? “Agak kedua-duanya sebenarnya. Pada zaman moden ini, negara lebih melihatnya sebagai isu harta intelek. Contohnya, di United Kingdom jatanya dilindungi di bawah Trade Marks Act 1994, sementara di Australia dilindungi di bawah Competition and Consumer Act 2010, Trade Marks Act 1995 atau Criminal Code Act 1995."" – Hakim. Sebenarnya, ada sebab kenapa ia diletakkan di bawah terma harta intelek. Menggunakan, atau lebih tepatnya menyalahgunakan lambang negara, berkemungkinan boleh memberi keuntungan yang tak adil kepada perniagaan, sebab ia seolah-olah menunjukkan yang raja atau kerajaan menyokong produk perniagaan mereka. Selain dapat kelebihan persaingan, ia juga boleh digunakan oleh scammer untuk menipu masyarakat. Sebagai contoh, masyarakat mungkin akan terfikir yang mereka berkomunikasi dengan organisasi kerajaan, disebabkan organisasi tu menggunakan lambang negara. Menariknya, dalam undang-undang awam antarabangsa, negara-negara kena melindungi Jata Negara mereka dari digunakan oleh negara-negara lain. Semua negara yang menandatangani Konvensyen Paris bagi Perlindungan Hak Perindustrian 1883, diwajibkan untuk melindungi Jata Negara mereka dan sebarang tiruannya. Ini kerana, menggunakan jata negara lain membawa maksud yang lebih dalam dari hanya inspirasi seni semata-mata. Pada abad pertengahan, bila seseorang menggunakan jata yang telah digunakan oleh yang lain, ia (dan sehingga kini di Scotland) dianggap sebagai satu kesalahan. Ini kerana, tindakan tu dianggap sebagai satu rampasan – mencabar hak milik jata dan juga keabsahan mereka dalam garis keturunan. Masa tu, kalau benda macam ni berlaku, ia boleh buat orang berperang jugalah. Antara tahun 1559 hingga 1561, Mary, Ratu Scotland yang ada buat tuntutan takhta England, secara terbuka mempamerkan jata England, yang sekaligus bukan je menuntut England, tapi Mahkota Inggeris tu sendiri. Seorang sejarawan Inggeris, Thiry pernah mengatakan yang tindakan itu membawa England dan Perancis ke ambang peperangan. Jadi, fahamlah kita yang menggunakan jata orang lain bukanlah isu kecil sebenarnya. Boleh ke kita buat versi Jata Negara yang diilhamkan secara artistik? Di bawah undang-undang Malaysia, kita tak boleh menggunakan Jata Negara tanpa kebenaran kerajaan atau sebarang “peniruan berwarna”. Tapi terma peniruan berwarna ni, ia bukan je pasal warna yang berlainan. Terma ini sebenarnya merujuk kepada ujian tanda dagang (trademark) yang digunakan dalam pertikaian harta intelek. Kalau dalam konteks artikel ni, ia akan melihat sama ada reka bentuk pada kulit buku tu menyerupai Jata Negara Malaysia, atau ia mungkin menimbulkan kekeliruan atau juga memperdayakan. Ini bukan undang-undang heraldik, iaitu undang-undang yang mengatur reka bentuk dan penggunaannya. Di bawah undang-undang heraldik, selagi ada perubahan warna atau elemen dalam reka bentuk, korang bebas menggunakannya. Dalam konteks harta intelektual moden, ia bermaksud peniruan logo tersebut, tetapi dengan perubahan kecil yang boleh menyebabkan kekeliruan atau menipu masyarakat umum. Salah satu contohnya ialah Royal Arms of UK, dan versi yang digayakan oleh kerajaan UK. Serupa juga dengan Malaysia iaitu Jata Negara dan versi hitam putihnya yang kita boleh nampak pada kulit buku latihan. Menggunakan versi apa pun tanpa izin dapat membuat korang bermasalah dengan undang-undang. Bagaimanapun, , Lawyers for Liberty ada mendakwa yang kulit buku Rebirth tu tak menyerupai Jata Negara. Menurut mereka, undang-undang hanya menyatakan yang kita tidak boleh menggunakannya tanpa kebenaran bertulis dari kementerian. Mereka juga menambahkan bahawa tak ada larangan terhadap persembahan seni yang diilhamkan dari Jata Negara, dan tak ada yang akan silap sangka rekaan tu sebagai Jata Negara yang sebenarnya. Tapi, sama ada menghina atau memberi inspirasi, kita kenalah tunggu dan lihat apa kes yang dinyatakan."
"A non-Muslim woman sued a Muslim woman for ruining her marriage. The court disagreed This article discusses civil marriages and does not include laws on Islamic marriages. Click here for our article on divorce in Islamic marriages. Getting a divorce can be pretty ugly. It might sometimes involve children, property and lotsss of emotions. Unless of course, you and your partner happily agree to get legally separated...which is super rare (and even then courts won’t allow y’all to be divorced)—read this link to know why. But yes, looking at how most divorce cases start and end on a bitter note—here’s a situation we’ve discussed before, but this time, there’s a bigger plot twist. Imagine finding out that your spouse of 5 years has been cheating on you with someone else, throughout your marriage. We previously wrote an article about this, which includes what you can do to your partner AND his lover, for ruining your marriage. [READ MORE: Malaysian women CAN sue their husband's mistress for ruining the marriage] TLDR: You can sue your husband’s lover for adultery—after you’ve established a case against him to get a divorce. Now this might be rather assuring for those who are worried about their partner’s straying away—you might be left with a broken heart, but at least you have more money. But the courts have now made an exception to this law, on whether or not you can destroy your partner’s lover…financially. You can’t sue your partner’s lover if he/she is Muslim The judges in AJS v RIS & Anor [2020] stated that the husband’s (alleged) lover, a Muslim woman—cannot be sued by the wife during separation proceedings between non-Muslims. Now why did the wife even sue her husband’s lover in the first place? Probably because she can, or thought she could. Section 58(1) of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) says this: “On a petition for divorce in which adultery is alleged...the party shall make the alleged adulterer or adulteress a co-respondent, unless excused by the court on special grounds from doing so.” In other words, your partner’s lover—referred to as a co-respondent under the Act can be sued in the event of adultery. Once the court thinks there is enough evidence against the lover, she/he can be sued for damages (monetary claims)—if the court thinks it’s fit to do so. However in this case, the wife couldn’t sue her husband’s lover because the court stated that the law on civil marriages excludes Muslims: The co-respondent is a Muslim lady who professes the religion of Islam…her application to strike out the...petition against her on the grounds that: (a) the Law Reform (Marriage and Divorce) Act 1976 (‘the LRA’) does not apply to Muslims; – Faizah Jamaludin J. The case was initially heard in the High Court, where the judge told the wife that she could not take any action against her partner’s lover because they were only getting a judicial separation, which isn’t exactly a divorce. A judicial separation basically means that you and your partner are legally separated, but the marriage is still valid. [READ MORE: 5 common questions Malaysians will ask about divorce law] However, the judge also went on to say that an alleged adulterer who’s Muslim is not barred from being disclosed as a co-respondent (adulterer) in divorce petitions and can be sued for adultery. But the case didn’t just stop there...it went to a court higher than the High Court. The court of appeal didn’t find this appealing The case went all the way up to the Court of Appeal, as there was some confusion on whether or not the wife could sue her husband’s lover. Here’s what the court said: The law under LRA 1976 does not apply to Muslims—regardless of whether or not the non-Muslim couple was getting a divorce or a judicial separation. [READ MORE: 5 Malaysian marriage laws you (probably) didn't know about] The judges technically agreed with the High Court judge, on how the type of separation the couple was getting will make it impossible for the wife to sue her husband’s lover for adultery. However, they disagreed that a Muslim person can be sued for adultery under civil laws. This is simply because the law under Section 3(3) of the LRA 1976 states as such: “This Act shall not apply to a Muslim or to any person who is married under Islamic law and no marriage of one of the parties which professes the religion of Islam shall be solemnized or registered under this Act;...” So based on the Section stated above, the judges agreed that the law for civil marriages does not apply to Muslims. Now some of you might already know that Muslims in Malaysia follow a different law from non-Muslims when it comes to marriage. Islamic Family Law is provided under Islamic Family Law (Federal Territory) Act 1984 (IFLA)—but Islamic law also varies by state in Malaysia. So there may be other laws that will apply on Muslims, when it comes to marriage and divorce. We won’t be covering them here, but you can read about it in the link below: [READ MORE: 5 ways Muslims can get divorced in Malaysia]"
"Children given a ""bin Abdullah"" surname may not need to use it anymore [Read Part 1: The untold story of the ""bin Abdullah"" children in Malaysia ] Some of you may remember our article from before where we interviewed Rahman and Aisyah. As a quick refresher, Rahman and Aisyah have a son named Adam, who was born 3 months after their wedding. At the time of his birth, Adam’s name was registered as Adam bin Rahman with a peculiar notation written the bottom of Adam’s birth certificate: “Permohonan s. 13”. The happy family thought nothing much of it. Twelve years later, they found out what it meant. When Adam turned 12, they went to the National Registration Department (NRD) to apply for Adam’s identification card (IC). However, the NRD refused to allow Adam’s name to be registered as Adam bin Rahman. Instead, the NRD informed Rahman that his son’s name must be listed as...Adam bin Abdullah. Rahman decided to cancel his son’s IC application as both parents did not know how to explain the anomaly to Adam. The reason for for Adam having to use ‘bin Abdullah’, is due to two fatwas in Malaysia that govern the naming and inheritance of illegitimate Muslim children. Under those fatwas, an illegitimate Muslim child must carry the bin Abdullah “surname” if the child is born within the first 6 months of the parents wedding. We’re covering this issue again, because of another family who faced the same dilemma. But this time, they decided to sue the NRD. The family in Johor that challenged the NRD Just like Rahman and Aisyah, the family in Johor faced the same issue – their child was not allowed to carry the father’s name. This is despite the parents’ application to allow the child (known to the media as NAW) to carry their father’s name (known to the media as MEMK). The father, MEMK, then sued the NRD. The High Court’s decision was in favour of the NRD. The Court of Appeal then overturned the High Court’s decision and ruled that the law is clear; an illegitimate child’s surname can be either the mother’s (if she volunteers that information) or the father’s (if he registers himself as a father under section 13 and requests for the child to bear his surname). The COA essentially ruled that section 13A can be applied to MEMK’s case to allow NAW to carry his name. The case was then appealed to the Federal Court by the NRD and the decision was announced several months back. Before we proceed any further, you may be wondering what’s this pesky section 13 referencing? To properly understand the nuances of this issue, sections 13 and 13A of the Births and Deaths Registration Act 1957 (“BDRA 1957”), the 1981 fatwa and 2003 fatwa are important. This is covered in detail in our previous article on Rahman’s family but in brief: Section 13 BDRA 1957 – where a child is illegitimate, no name of any person shall be registered as its father unless there is a joint request made by the mother of the child and a person claiming to its father Section 13A(2) BDRA 1957 – the surname of an illegitimate child would be the surname of the mother (if she volunteers the information) or the surname of a person claiming to be its father as under section 13 1981 fatwa – an illegitimate Muslim child must carry the bin (or binti) Abdullah “surname” 2003 fatwa – an illegitimate Muslim child is one born within the first six months of the parents marriage. This child cannot carry the “surname” of the anyone claiming to be its father Now that you have some background to this matter, let’s look at the interesting approach taken by the majority of the Federal Court. The decision in the Federal Court was split A total of seven judges sat to decide this appeal. Out of the seven, four of the judges agreed on one decision (which became the final decision, as it was the view held by the majority). The remaining three judges disagreed. In essence, the majority of the Federal Court decided, four against three, that NAW should not be given the bin Abdullah “surname”. The NRD was ordered to remove the words “bin Abdullah” from NAW”s birth certificate. But there’s a plot twist. Whilst NAW will not have “bin Abdullah” on his birth certificate, he’s still not allowed to carry his father’s name, MEMK, either. If you’re reeling from shock, hang on because we have another plot twist for you. The majority of the Federal Court decided in that manner because… Malays don’t have a surname The majority of judges that agreed, said that a birth certificate with the notation “Permohonan s. 13” is stating that the birth certificate is for an illegitimate child. As a reminder, in section 13A of the BDRA 1957, it’s stated that an illegitimate child’s surname could be the mother, or someone claiming to be the father. However, MEMK can’t use this law to include his name as NAW’s surname, because...Malays have no surname. Why is that? This is because the majority believed that the word “bin” or “binti” means son of or daughter of. They then drew a difference between a personal name and a surname. Section 13A of the BDRA is only meant to apply for surnames and it cannot be used to allow NAW to carry MEMK’s name as MEMK is a personal name. This was what the majority said: “...to my mind a surname refers to a family, hereditary and inherited name, distinct from a personal name. In the present case, MEMK is obviously not a family name or hereditary name or inherited name commonly shared by, for example, the wife and all members of the family. Instead, it is merely his personal name...It is difficult to appreciate how the personal name of the father may also be a surname at the same time” – Datuk Rohana Yusof, President of the Court of Appeal The three judges that disagreed took a different view on how surnames ought to be interpreted. They thought that excluding patronyms (where the fathers’ name forms part of their children’s name) from the definition of surnames under the BDRA, would mean that Section 13A of the BDRA would not be applicable to a vast majority of Malaysians. This is what they had to say about section 13A: “...the section allows for a formal acknowledgement of paternity, for purposes of record in the register of births...As such is its object, the application of a purposive approach to statutory construction would yield the result that the term ‘surname’ in section 13A ought to be construed as referring to both a patronymic name as well as the English Oxford Dictionary meaning of the word...it cannot simply be concluded that in view of the word used in the section, namely ‘surname’, the entire section i.e. 13A becomes inapplicable to a particular segment of the population. This is particularly so, given that such a conclusion leads to the inapplicability of the entire section to the majority of the population of Malaysia, in respect of an Act that has application, as promulgated by Parliament, to all citizens of the country.” – Datuk Nallini Pathmanathan, Federal Court Judge In essence, the difference in the views taken by the majority and minority of the Federal Court boiled down to how they chose to interpret the law. The majority took the literal approach (i.e using the literal meaning of the word) whilst the minority took the purposive approach (i.e interpreting the words in a manner that would allow the purpose of the law to be fulfilled). Now, remember we mentioned that several fatwas were also part of this legal kerfuffle? Well, the next question posed to the Federal Court was this: Should the NRD use syariah laws to determine a child’s last name? The answer is yes The answer might seem simple: they’re Muslims, so obviously they should follow their state’s syariah laws. However, in our previous article on Rahman and Aisyah, we’ve explained how syariah laws and federal laws...might not agree with each other. In brief, the 1981 and 2003 fatwas on how to name a child are in conflict with the Births and Deaths Registration Act (BDRA). The two fatwas only allows an illegitimate child to be named bin Abdullah, while the BDRA allows the parents to use either the mother or father’s surname. But since the laws are conflicting, which one should they follow? Syariah law, or federal law? As such, this was the position adopted by the majority in the Federal Court: “It is therefore by constitutional prescription that the Muslims in this country are subjected to the general law enacted by Parliament as well as Islamic laws enacted by the State Legislature.” – Datuk Rohana Yusof, President of the Court of Appeal So basically, the majority of the judges decided that they should follow both laws, federal and syariah law. However, the dissenting judges found that the Federal Constitution specifically made the registration of births and deaths as a matter to be regulated by Federal law only. In other words, the State Islamic laws would not be applicable when it relates to registering births and deaths. “...The BDRA 1957 is therefore, for all intents and purposes, a federal law dealing with subject matter that falls within the Federal List namely, registration of births and deaths...Islamic law has no application insofar as the registration of deaths and births is concerned.” – Datuk Nallini Pathmanathan, Federal Court Judge At this juncture, you may be wondering, if State Islamic laws apply, why wasn’t NAW given the bin Abdullah “surname”? Each state has their own syariah laws In MEMK’s case, the NRD had relied on the 1981 fatwa to grant a ‘bin Abdullah’ to NAW. However, whilst this 1981 fatwa was made by the National Fatwa Committee, the fatwa was not gazetted (given legal status) in Johor. “The opinion of the National Fatwa Committee or a fatwa becomes law in the State of Johore and would be legally binding only if it is gazetted in the State Gazette under section 49 of the Administration of the Religion of Islam (State of Johor) Enactment 2003 (Enactment No 16 of 2003). That Enactment requires that a fatwa becomes law and only has the force of law upon gazetting and a provision on the procedure of making a fatwa is articulated in section 48.” – Datuk Rohana Yusof, President of the Court of Appeal Each state in Malaysia is given the power to legislate on Islamic laws. These Islamic laws cover matters such as succession, marriage, divorce and legitimacy. But not all states have adopted the 1981 fatwa. In order for it to become law in the state of Johor, the fatwa must be gazetted under the relevant Johor enactments (State laws) and publicised. As Johor has not adopted the fatwa on naming an illegitimate child, the NRD cannot impose the 1981 fatwa on MEMK and NAW. By doing so, the NRD acted outside the powers given to it. Whilst Islamic law can be relied on in registering the birth of Muslim children, there must first be such a law in that State. The minority had also agreed with the position taken i.e that there was no basis to prescribe NAW with bin Abdullah, albeit with slightly different reasonings, which we won’t go into for the purposes of this article. Where does this leave us? In a nutshell, the law as it currently stands can be understood as follows: Muslims do not have a surname and cannot rely on section 13A of the BDRA 1957 Muslims would be subject to each State’s Islamic law for registration of births If the State does not have a law that deals with prescribing bin Abdullah to a child, then the child cannot be given the bin Abdullah name So whether or not an illegitimate child would be given the Abdullah name, depends on the syariah laws in the state. For MEMK and NAW, the NRD has been ordered to remove “bin Abdullah” from NAW’s name. NAW will now only have his given name, without a patronym or any other surname. It’s like if your child’s given name is Muhammad Ali, and the NRD slapped on “bin Abdullah” on it. The NRD will now have to remove “bin Abdullah”, leaving your child’s official name to be...Muhammad Ali (which is pretty badass in our opinion)."
"What can someone do with your name, MyKad number, address and phone number? Almost all of us have shopped online. When we shop, we easily give our name, address and contact number to the seller. Then when the item is delivered to us, the abang Poslaju takes down our IC numbers before handing us the package. And lately with Covid-19 around, we’ve been asked to give our particulars to shops, restaurants and other premises before entering them. Having all this personal information known by others is inevitable and for the most part, it may seem like a harmless thing. But the trouble starts when those handling this information misuse it. And sadly, this happens quite often. You might remember this massive data breach that was reported in 2017, where 46.2 million Malaysian mobile phone numbers were leaked, or when 30 million Malindo Airlines customers’ information was breached in early 2020. Besides having their information breached by others, some Malaysians may have also received scam calls and accidentally given out their name or IC number to the caller. So the question is, if someone has your name, IC number, address and phone number, what can they do with that information...and what can YOU do if this info has gone to the wrong hands? Your information can be used for...anything There’s actually no fixed list of what people can do with your information once they have it. We’ve written several articles to illustrate this better and how the law may be able to help in certain situations, which you can read here: [READ MORE: Can security guards keep your MyKad or driving license?] [READ MORE: How do I use the Malaysian PDPA to stop telemarketers from calling me?] [READ MORE: Can friends ""refer"" your contact to companies without your permission in Malaysia?] Now if someone has your IC number, they can look you up on the electoral (voter) roll, or even see if you’re receiving government aid such as Bantuan Prihatin Nasional. Back in the day, all you needed was someone’s name and you could look up their phone number in the Malaysian Yellow Pages. In current times, it’s possible to reverse search someone using their number with apps like TrueCaller. Even businesses like banks and online shopping platforms can at any time access all the info you provided them with when you first signed up. And with this, they may be able to see all your spending history, and your contact information can be passed down to telemarketers and salespeople. So...you get the idea—it’s impossible to list every single thing someone can do with your information. While these things cannot be fully prevented, there is still a silver lining here. One, it’s impossible for someone to empty your bank account or steal your identity with just a single piece of information. They also won’t be able to sign you up for things or make you a guarantor because you would need to be physically present for these. Secondly, the law can penalize those who release or steal your personal information. Companies are legally required to keep your info safe You should note that there are actually no blanket laws to prevent all types of data breach in Malaysia...but there is one that requires businesses to keep your personal info safe. This Act, known as the Personal Data Protection Act (PDPA) 2010 only applies to commercial transactions. It covers businesses such as telcos, email service providers and any other business that takes personal info from consumers. Section 103 of that Act says: (1) A person shall not knowingly or recklessly, without the consent of the data user— (a) collect or disclose personal data that is held by the data user; or (b) procure the disclosure to another person of personal data that is held by the data user. According to the Act, personal data is defined as information that makes it possible for a person to be identified, or identifiable. This can include things such as your name, address and number, or even a specific description that fits only you. So, businesses are allowed to store personal info, but they will be penalized if any of that info is leaked. Section 130 also goes on to say: (7) A person who commits an offence under this section shall, upon conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both. Take note that there are instances where businesses CAN give out your information, such as when the court or a Minister requires it...or you yourself agreed to it when accepting the terms and conditions of using that business’ services. But if your data was leaked without your consent and not for legal reasons, you can file a complaint with the Personal Data Protection Commissioner who is under the Ministry of Communications and Multimedia. This Commissioner is in charge of investigating crimes pertaining to user data. However, as we said, the PDPA only applies to commercial transactions/companies. So what can you do if your info landed in the hands of someone who can’t be charged under the PDPA? Make a report if you feel your data has been leaked If the PDPA doesn’t apply to your case, the next best thing to do would be to file a report with PDRM. To reiterate, outside of the PDPA, PDRM won’t be able to charge anyone for breaching your data. However, those people can be charged for what they do using your data. So some examples of this would be scam calls where your money is stolen and identity theft, where someone else uses your information pretending to be you. As we said, it’s impossible to fully prevent your information from being taken by irresponsible parties. But where possible, it’s best to be vigilant. So be wary of unknown numbers pretending to be a police or court officer, and make sure to read through the T&C of a service before using it."
"Hostel Malaysia ni 'larang' orang tempatan dari masuk. Boleh ke buat macam tu? [Click here for English version] “Dilarang memakai selipar.” “Dilarang merokok.” “Dilarang membawa makanan luar.” Mungkin kita semua pernah nampak papan tanda macam ni di depan pejabat, restoran atau tempat-tempat tertentu. Sebabnya, ada je tempat yang tetapkan kod pakaian sendiri atau peraturan tertentu sebelum seseorang tu dibenarkan masuk. Tapi macam mana pula kalau kita tak dibenarkan masuk disebabkan kewarganegaraan kita sendiri? Dan hal tu pula berlaku kepada rakyat Malaysia… di negara Malaysia? Boleh ke halang orang tempatan, dalam negara mereka sendiri? Baru-baru ni, kecoh di media sosial pasal sebuah hostel dua-bintang, Reggae Mansion di Kuala Lumpur yang didakwa tak terima penginap dari beberapa negara, termasuklah Malaysia. Hal tu diketahui berdasarkan tangkapan skrin dari bahagian ulasan TripAdvisor yang didedahkan oleh personaliti Twiter terkenal, @Iqtodabal. Dalam tangkapan skrin tu, seorang rakyat Pakistan mendakwa tempahannya dah dibatalkan hanya kerana kewarganegaraannya. Dalam ulasan yang lain pula, ada juga rakyat negara lain yang kata – kawannya dari Kuching pun dinafikan dari masuk ke dalam bar hostel berkenaan. Malah, dalam polisi hostel ni di TripAdvisor, ada dinyatakan yang mereka tak terima tempahan atas talian dari “Malaysia, India dan negara-negara Timur Tengah”. Peliknya, hostel ni kata yang ia hanya terima walk-ins untuk mereka yang datang dari negara-negara ni. Bagaimanapun, sebelum ni Reggae Mansion mempertahankan perkara tu sebagai disebabkan faktor agama, kerana mereka menyediakan minuman beralkohol. Hal ni kemudiannya menimbulkan persoalan: boleh ke hostel buat macam tu? Tempat mereka, peraturan mereka Pertama sekali yang kita kena tahu, hostel macam Reggae Mansion ni adalah hartanah persendirian. Dan disebabkan ia hartanah persendirian, pemiliknya ada kuasa untuk buat apa saja peraturan pada hartanah tu. Ini bermakna, kalau korang masuk ke dalam premis, korang sebenarnya tertakluk kepada peraturan mereka. Jadinya, kalau sesuatu hartanah persendirian tu menetapkan yang korang kena pakai sut dan tali leher untuk masuk, korang kenalah buat macam tu. Samalah juga kalau mereka tak benarkan korang masuk disebabkan pasport (atau IC) korang. Sebabnya, semua tu tertakluk kepada hak pemilik hartanah. Sebenarnya, kami ada bincang topik ni dulu, tentang sama ada korang boleh atau tak bawa makanan luar ke dalam restoran. Boleh baca artikel tu di bawah: [BACA LAGI: Can Malaysian restaurants legally stop you from bringing outside food?] Untuk maklumat lagi, pemilik hartanah persendirian juga ada hak untuk halau korang keluar kalau korang tak ikut peraturan yang mereka tetapkan. Pemilik boleh kata yang korang tak memenuhi syarat dan halang korang dari masuk. Kalau korang berkeras tak nak keluar, korang boleh didakwa kerana menceroboh. Hal ni dipanggil sebagai “pencerobohan jenayah” di bawah Seksyen 441, Kanun Keseksaan: Barang siapa masuk ke dalam atau ke atas harta yang dimiliki oleh seseorang lain dengan niat hendak melakukan sesuatu kesalahan atau hendak menakutkan, mengaibkan, atau menggusarkan mana-mana orang yang memiliki harta itu; atau setelah dengan sah disisi undang-undang masuk ke dalam atau ke atas harta itu, tinggal di situ dengan menyalahi undang-undang dengan niat dengan jalan demikian itu hendak menakutkan, mengaibkan atau menggusarkan mana-mana orang itu, atau dengan niat hendak melakukan sesuatu kesalahan, adalah dikata melakukan ‘pencerobohan jenayah’ Dalam pada itu, korang juga boleh didenda sehingga RM3000 dan/atau dipenjara sehingga 6 bulan di bawah Seksyen 447, Kanun Keseksaan jika sabit kesalahan. Barang siapa yang melakukan pencerobohan jenayah hendaklah dihukum penjara selama tempoh tidak lebih *enam bulan atau denda sehingga * tiga ribu ringgit atau kedua-duanya. Tapi ambil perhatian juga yang kami bukannya kata apa yang dilakukan oleh mereka tu okay. Kami cuma nyatakan hak-hak yang pemilik hartanah ada dalam membenarkan pihak mana yang boleh masuk ke dalam premis mereka. Tapi, kalau korang tak setuju dengan apa yang mereka buat, korang boleh je buat semudah ni, iaitu… Gunalah kuasa memilih kita Mungkin ada di antara korang yang rasa perkara ni salah di sisi moral, bila mana seseorang tu tak dibenarkan masuk hanya disebabkan kewarganegaraan mereka. Tapi nampaknya, memang tak ada undang-undang yang menghalang pemilik dari berbuat demikian. Oleh itu, tak ada jalan undang-undang untuk mengadu pasal mereka ni, sebab apa yang mereka buat tu memang boleh dilakukan. Jadinya, apa yang korang boleh buat adalah gunakan kuasa pengguna korang. Sebabnya, korang masih ada hak untuk memilih nak guna duit korang tu dekat mana dan untuk apa. Korang juga kenalah berhati-hati dengan baca dulu polisi tempat-tempat menginapan yang nak ditempah atau masuk. Sekurangnya, korang taklah berdepan masalah nanti."
"There's a law to prevent prison deaths in Malaysia...but why isn't it enforced yet? Prison deaths are now trending on social media, after the news about a man who had died in prison reached the public. If you’re not familiar with this story, let us shed some light on it first. A 35 year-old Malaysian man died in his prison cell, while he was in remand for a drug related case. The cause of his death has been confirmed by Selangor’s police chief, that the man suffered from a heart attack. However, his family isn’t convinced with the reasoning given by the authorities. They suspect foul-play, as they discovered bruises on the man’s body during post-mortem. Now this is just one of the many cases of custodial deaths in prisons. Statistically speaking, approximately 248 detainees have died in police custody, up until 2016. The numbers are somewhat worrying, and people are starting to suspect that the police have something to do behind this. But before we start pointing fingers at the authorities we have to tell you this: Prison deaths happen because of other reasons, besides police brutality. Our sister company, Cilisos wrote an article about how the main cause of prisoner deaths is actually from disease. Besides diseases, suicide is also a reason why prison deaths happen. You can read the full article here. Now this does not mean police brutality is ruled out when it comes to prison deaths. There have been many cases where inmates have been beaten up, or worse, killed in custody. Now we previously wrote articles on what are our rights upon being arrested in Malaysia, which you can read about from the links below: [READ MORE: Don't know your rights with the PDRM? Here's a cheat sheet to download] [READ MORE: What are your rights if you get arrested by the PDRM?] But who investigates these cases and how is it resolved? We have the EAIC but they can ONLY investigate the case The Enforce­ment Agency Integrity Commission (EAIC) was set up to regulate and investigate complaints made against government officials/bodies. But sometime in October, the commissioners of the body were told that their contract ended—as there were talks that it will be replaced by the Independent Police Complaints and Misconduct Commission (IPCMC) (more on this later). So right now, EAIC still exists. They can only investigate complaints, but not take any action. Butttt this doesn’t mean we won’t see change... The IPCMC does more than just investigate cases A new Bill for the IPCMC was proposed sometime last year. IPCMC is supposed to do similar things as the EAIC. This new Bill essentially covers matters such as complaints and investigations on misconduct committed by the police—and will set disciplinary proceedings to deal with the misconducts. The proposed Bill has a section that states what kind of misconduct they will investigate, if a complaint is made by the public: “Section 22 of the Act (in part): The Commission may receive or deal with complaints against any member of the police force referred to it, on the following misconduct: (a) any act or inaction which is contrary to any written law; (b) non-compliance of rules and standard operating procedure of the police; (c) any act or inaction which is unreasonable, unjust, oppressive or improperly discriminatory...” The proposed Commission is expected to be seated by 10 members, who will be appointed by the YDP Agong himself on the advice of the PM. However, the Bill only went up to it’s second reading and has remained there for sometime now. Now here’s a fun fact about this Bill: It was first proposed in 2005 and only got through the first stage of becoming a Bill last year. To briefly explain how laws are passed in the Parliament, they actually go through a pretty lengthy process before actually becoming the law. Without arguing whether it’s delayed by political reasons, proposals to introduce or change a law takes time to happen, as it has to through the Parliament, the Senate, and the Agong before it can be accepted. [READ MORE: Why does Malaysia take so long to create or change laws?] The creation of a Bill involves extensive discussion and negotiation among the parties who have an interest on the Bill, and to those who will be affected (or represent those who will be affected) such as the government, NGOs, public interest groups, and so on. Which is where you come into the picture... Can we push for the IPCMC to become a new law? As we mentioned earlier, parties who have an interest on the Bill can push for it to become an Act (a new law). There are generally three ways for Bills to become an Act based on who brings it up: Public Bills They concern matters affecting the general public interest such as crime and taxation. Both the government and a Private Member of Parliament can propose a Public Bill. The phrase private member refers to MPs who are not part of the Cabinet. Public Bills are actually the most common type of Bills in Malaysia. An example of a Public bill is when Hadi Awang tabled the Bill to amend the Syariah Courts Criminal Jurisdiction Act 1965 (RUU355). Private Bills Private bills deal with matters of private or local concern. This type of Bill is proposed by any private individuals, associations, or NGOs outside of the Parliament. Hybrid Bills This Bill is a mix of Public Bill and Private Bills. It involves issues of public interest which also affect the interest of some private individuals. Since Public Bills are commonly used to propose laws to the Parliament, there is a possibility (although slightly far-fetched) that we can actually propose to our local MP’s—asking them to raise this Bill in the upcoming Parliament. If you don’t know who the MP of your district is, just do a quick search on the official Parliament site and look for your MP. You can then consider writing or emailing him/her, to bring the matter up in the next Parliamentary sitting this month. Many of us may be under the impression that laws can only be changed by politicians or in parliament. But what if we told you that regular Malaysians have changed the law on a regular basis? An example we wrote about, is the legalization of paintball guns, when a paintball company sued the police (and won). [READ MORE: Here's how a group of paintballers changed Malaysian law by bringing the PDRM to court] So at the risk of sounding corny, you CAN change the law as long as you’re willing to put in the time + effort to do it…AND accepting the possibility that it might also not go the way you want it to. But what are the measures being taken for now? As for now, the Bill is said to be reviewed by the government before it can be presented to the Parliament. The case on the recent death of the man is also urged to be investigated, to see if foul play was actually present or not. As we mentioned in the beginning of the article, there are many causes of prisoner deaths and an investigation needs to be done first to determine the cause. Several NGOs are asking for the IPCMC Act to be tabled in the upcoming Parliament sitting. The Act will only become law if it is passed by both the Dewan Rakyat and Dewan Negara, and granted royal assent by the Yang di-Pertuan Agong. The Act will then come into effect on a date set by the prime minister, via a government gazette."
"Kisah pelajar mangsa buli yang SAMAN sekolah dan kerajaan RM2 juta [Click here for English version] Pada 27 Jun 2020 lalu, The Star melaporkan tentang seorang pelajar yang bertindak menyaman beberapa orang, termasuklah sekolahnya sebanyak RM2 juta. Pelajar tu mendakwa, dia dah dibuli dengan teruk oleh rakan-rakan sekelasnya pada tahun 2019 dan insiden tu dah membuatkannya terpaksa dimasukkan ke wad psikiatri. Tindakan buli tu didakwa telah memberikan kesan yang cukup besar kepada dirinya dan disebabkan hal itu – bagi pihaknya, ibu pelajar berkenaan dah bertindak memfailkan kes di Mahkamah Tinggi Temerloh terhadap: pembuli itu sendiri (menyaman bapanya) pengetua sekolah ketua pengarah pendidikan kerajaan Malaysia Nota: ibu mangsa menyaman bapa pembuli, disebabkan secara teknikalnya – kanak-kanak bawah umur tak boleh menyaman atau disaman. Mungkin ada yang tertanya-tanya, kenapa dia saman dengan jumlah yang sangat besar dan kenapa dia saman pengetua dan kerajaan sekali, sedangkan dia boleh saman pembuli je. Oleh itu, kami akan jelaskan hal ni dalam artikel supaya kita semua boleh faham. Tapi sebelum tu, korang kena tahu dulu yang… Tak ada undang-undang terhadap buli Sebenarnya, perkara ni bukanlah secara spesifik. Kami ada tulis artikel tentang hal ni dan korang boleh baca di sini. Tapi secara asasnya, buli itu sendiri bukanlah jenayah di Malaysia, sampailah ia melibatkan kecederaan fizikal, kematian atau ancaman keselamatan. Hanya jika berlaku perkara seperti itu, barulah pembuli tersebut boleh didakwa dengan jenayah seperti intimidasi fizikal, serangan ataupun pembunuhan. Kanak-kanak yang terlibat dalam buli fizikal pula boleh dibicarakan di mahkamah khas untuk kanak-kanak. [BACA LAGI: Did you know Malaysia has a special court for CHILDREN who commit crimes?] Bagaimanapun, dalam hal ni tak disebutkan tentang kes jenayah yang difailkan terhadap pembuli, dan apa yang kami tahu adalah dia disaman atas kesalahan sivil. Tapi sebenarnya, tu tak bermakna yang seseorang pembuli tu tak boleh dihukum berdasarkan undang-undang jenayah. Namun, kenapa dia kena saman je? Seperti yang dikatakan awal tadi, ibu mangsa ada kata – disebabkan tindakan buli tu, anaknya terpaksa berjumpa dengan pakar psikiatri. Anaknya juga kena diberikan ubat dan rawatan. Makanya, apa yang kita boleh faham adalah perkara ni akan memberikan bebanan kepada ibu bapa mangsa. Di bawah undang-undang sivil, korang boleh menuntut ganti rugi (pampasan wang) dari seseorang yang telah menyebabkan mudarat terhadap diri korang. Oleh sebab itulah, pelajar berkenaan melalui ibunya bertindak menyaman pembuli… melalui bapanya. Perkara ni nampak munasabah jugalah sebab dia saman pembuli yang memudaratkan dirinya. Tapi, kenapa pula dia saman sekolah sekali? Sekolah dikatakan turut bertanggungjawab Sekolah disaman kerana ia dianggap memainkan peranan juga dalam hal ini. Perkara ni mungkin buat korang rasa keliru sikit, tapi inilah apa yang dikatakan sebagai kecuaian yang juga merupakan satu kesalahan sivil. Maknanya, korang boleh saman seseorang kerana kecuaian, jika sekiranya kecuaian mereka tu menyebabkan mudarat terhadap korang. Dan untuk menyaman seseorang kerana kecuaian, korang kena membuktikan: Mereka ada tanggungjawab menjaga korang Mereka telah melanggar tanggungjawab itu Pelanggaran itu mesti menimbulkan mudarat kepada korang Mudarat itu tak terlalu jauh dari akibat pelanggaran tersebut Jadinya, untuk pelajar tadi berjaya menyaman sekolah, dia kena membuktikan: sekolah (guru, pengetua dan sebagainya) ada tanggungjawab undang-undang untuk memastikannya selamat di sekolah sekolah telah gagal menjalankan tanggungjawabnya dia menderita kerana sekolah itu gagal menjalankan tugasnya mudarat yang ditanggungnya pasti dapat dijangka; iaitu, buli kemungkinan besar berlaku kerana sekolah itu tidak menjalankan tugasnya Tentang kenapa dia saman ketua pengarah pendidikan dan kerajaan Malaysia pula, ia adalah kerana mereka dianggap mempunyai kemajipan untuk peduli terhadapnya, tetapi gagal berbuat demikian. Namun, sama ada saman tu akan berjaya atau tak di mahkamah, tu perkara lain. Sebelum ni, ada juga yang saman sekolah Buat masa sekarang, kami cuma boleh kongsikan maklumat tentang kes ni je dulu. Bila keputusan dah keluar nanti, kami akan kemaskini artikel. Kalau korang rasa macam baru je dengar kes mangsa buli saman sekolah, ia sebenarnya bukanlah perkara baru dan pernah je berlaku sebelum ni. Contohnya pada tahun 2017, apabila seorang pelajar di Terengganu menyaman beberapa pihak kerana dia dah hilang pendengaran akibat dari tindakan buli fizikal yang dia alami. Dia menyaman 5 pembulinya, pengetua sekolah, kerajaan Malaysia dan dua orang lagi sebanyak RM2 juta. Mahkamah kemudian memihak kepadanya dan memberikan pelajar berkenaan pampasan bernilai RM616,634. Pada tahun sama, ada juga seorang bapa yang menyaman sekolah dan guru anaknya kerana mengabaikan anaknya yang dibuli. Tentang jumlah tuntutan saman yang tinggi tu pula, ia adalah kerana dalam kes begini – mangsa harus menanggung pelbagai kos seperti terapi, ubat-ubatan, yuran guaman dan sebagainya. Sementara kes ni masih lagi berjalan di mahkamah, kita semua sedia maklum dengan keburukan dan kesan buli kepada mangsa. Jadinya, kalau korang kenal atau tahu sesiapa yang dibuli, korang bolehlah menghubungi nombor berikut untuk dapatkan bantuan: Befrienders: 03-7956 8144/ 03-7956 8145 Talian Kasih: 15999 Protect and Save the Children: 03-7957 4344/ 016-227 3065"
"Maxis, Digi and 3 other telcos have been fined RM4.6 million...for 'bad service' At some point, we’ve all had issues with our telco service providers. Regardless of which telco you use, you would have had some problem with connectivity, billing, and so on. When something like this happens, we might reach out to the telco to have it fixed…or we might just wait it out until the problem is resolved on its own. Seeing as these issues are common, you might not think these are things that telcos can get in trouble for. But on 4th July 2020, the Malaysian Communications and Multimedia Commission (MCMC) said that it has fined 5 telcos for service that was not up to standard...for a whopping RM4.6 million. Those telcos are: Maxis, Digi, Celcom, Telekom Malaysia and TIME. MCMC is the body that regulates anything to do with communications and multimedia in the country. So it’s their job to ensure that companies in that industry (telcos, internet service providers etc.) are following the rules. We’ll tell you what exactly the 5 telcos were fined for later, but actually, this isn’t the first time this has happened. Various telcos were fined RM 2.32 million in the first quarter of 2019, and another RM3.83 million in the second quarter. Poor quality of service is against the law This time round when the telcos were fined—which was in the second quarter of 2020—there were a total of 92 compounds issued. You can see how many fines each telco has received, and how much they have been individually fined here. But in essence, they were fined for: billing-complain resolution performance (anything to do with billing/charges) non-billing complain resolution performance (any other complaints that aren’t about a customer’s phone bill) customer-hotline management performance In simpler terms, they were fined for unsatisfactory customer service; what customers’ problems were as a result of their service, and how they solved them. The interesting bit is that it’s actually illegal for service providers to be sub-standard, so MCMC didn’t just decide to fine them out of nowhere. The MCMC has set a certain standard for telco services, which is known as the Mandatory Standard of Quality of Service (MSQoS). You can get more information on this here. There’s also the General Consumer Code (GCC) which is what MCMC uses to handle consumer complaints regarding service providers. These guides set the benchmark guides for services providers to follow, and it’s not the law itself. But from a legal stand, the Communications and Multimedia Act 1998 makes it compulsory for service providers to follow these standards that have been set for them. Section 105(3), which is the specific law that was used to impose the fines says: A person subject to a mandatory standard shall comply with the mandatory standard The Act does not expressly mention what this ‘mandatory standard’ is, but from the guides that we mentioned above, telcos are expected to have sufficient coverage, not wrongly bill customers, and address customer complaints properly. Failing to do any of this is an offence under this Act, which also says that service providers can be fined RM100,000 for each offence. Now you may be wondering what you yourself can do with all this information... You can complain to MCMC too This article wasn’t just to tell you a random story about Malaysian telcos being fined, but that you can also take action if you’re not satisfied with the quality of a service. As we said earlier, MCMC regulates the communication amd multimedia industry in Malaysia. But their job doesn’t only entail enforcing the law against offenders. They also tend to individual customer complaints regarding any service provider within the industry. MCMC will then take action based on the collective complaints against the service providers. According to their website, besides telco service providers, they also deal with complaints on internet service providers and cable TV operators among others. You’ll find the full list here. Specifically for telcos, complaints can be made for things such as poor network coverage, incorrect billing and even dropped calls. So if your telco themselves aren't helping you with a problem, you can file a complaint with MCMC through any one of the following channels: Complaint Portal: http://www.complaint.cfm.org.my Hotline: 1800 18 22 22 Email: aduan@cfm.org.my"
"Why is it illegal to use Malaysia's coat of arms?  If you haven’t heard already, a book publisher is being investigated for using a modified image of Malaysia’s coat of arms, Jata Negara, on their book. The book, Rebirth, published by Gerak Budaya, has since been banned. 313 copies of the book has been seized out of the 1000 that was printed. Besides potentially being a collector’s item now, the book is said to insult Malaysia’s coat of arms. The book’s cover used a painting by local artist Shia Yih Yiing, and was actually displayed in a local gallery in 2014. It did not receive any complaints back then. Despite making the news, this might be the first time most people have heard of the term coat of arms, or Jata Negara. But why would imitating a coat of arms be a crime, and even considered insulting? Besides “Duh, that’s what the law said,” we decided to look deeper. And the answer might be more than what the Jata Negara symbolises. It started on the European battlefields Just like our laws, the use of coat of arms were imported from the British. Despite coat of arms being commonly used to describe the whole Jata Negara, it’s not actually...accurate. In heraldry, a subject that studies as well as regulates these types of symbols, the coat of arms refers only to the design on the shield. The whole symbol, complete with the standing tigers and motto, is called a heraldic achievement. Still, even if you don’t know the proper name, you’ve probably seen it in movies or TV shows like Game of Thrones. It’s generally meant to symbolise an individual, whether it’s a king, nobleman, or a knight. For countries that do adopt it, it is considered as a symbol of the country. According to Hakim Sutton, who studies heraldry: “Arms serve the same purpose as logos and trademarks. They identify a particular thing as belonging to the person or country. That is to say, they provide a clear and distinguishable visual reference which allows for easy identification.” – Hakim Sutton, in an interview through WhatsApp. The name comes from its use on European battlefields. Back in the early middle ages, knights were typically decked head-to-toe in armour. Because of that, it can be hard to distinguish friend from foe in a battlefield. To solve it, they decided that everyone should wear distinctive coats that is easily recognisable. This is what they mean by coat of arms – the design. The designs are distinctive, and you can’t have the same design as another person. Most people at that time were also illiterate, so having a visual symbol solved the problem of having to start a literacy campaign in the middle ages. “One may not be able to read but everyone can recognise a pictorial representation. Most if not all countries have either a coat of arms or an emblem. The difference between emblems and coats of arms is that the former do not respect the rules of heraldry. The similarity is that both embody the identity of a country.” – Hakim Despite its purpose of identifying a country, not everyone can use the coat of arms. The coat of arms belongs to the king A flag and coat of arms can be almost similar in nature. Both are used to capture and display the identity of our country. A coat of arms can even be used like a flag. Back in the middle ages, those who had arms would put it up on a banner of arms, which is basically adapting the arms design onto a flag. There are a few countries that use the arms design for their flag. For a local example, Sarawak uses their coat of arms on their flag. A majority of countries have both a flag and a coat of arms, but it’s not a necessity. However, monarchies tend to have both. For example, the United Kingdom have both the Royal Coat of Arm and their flag, the Union Jack. Similarly, Malaysia has the Jata Negara and the Jalur Gemilang. However, only one person is allowed to display a particular arms – the owner. And in our country, the owner of the Jata Negara is our king. “In constitutional monarchies like Malaysia and the United Kingdom, a government exercises powers on behalf of His Majesty The King hence why the government frequently manifests its identity in the arms of the Sovereign. We mortals are not entitled to use it nor display it on a banner of arms.” – Hakim So besides the monarchy, only our government is allowed to use the Jata Negara. For everyone else, you would need written permission from the government. In Malaysia, using the coat of arms without permission is an offence punishable under the Emblems and Names Act 1963. However, the rakyat are still allowed to use the flag, as it’s meant to show solidarity with our country. It’s not subjected to the same laws as the Jata Negara. Even so, there are still laws to observe when using the flag. [READ MORE: These 2 Malaysian laws have been protecting our National Flag and Anthem for 54 years ] Why is it important to protect it? When someone besides the king or the government uses Jata Negara, is it more of a trademark issue, or would it fall under insulting the majesty? “A bit of both actually. In these modern times, countries frame it in more intellectual property terms. Indeed, in the United Kingdom it is protected under the Trade Marks Act 1994 whilst in Australia it is protected under the Competition and Consumer Act 2010, the Trade Marks Act 1995 or the Criminal Code Act 1995.” – Hakim But there’s a reason for it being framed in intellectual property terms. Using, or rather misusing, a country’s coat of arms may give a business an unfair advantage, as it can imply that the monarch or government is endorsing the business’s product. Besides getting a competitive edge, it can also be used by scammers to deceive the general public. For example, a citizen may think he is communicating with a government organisation, as that organisation is using the country’s coat of arms. Interestingly, in public international law, countries are also required to protect their coat of arms from being used by other countries. All countries that signed the Paris Convention for the Protection of Industrial Property of 1883, are obliged to protect their armorial bearings (coat of arms) and any imitations of it. This is because using another country’s coat of arms implies more than just artistic inspiration. In the middle ages, when one used an arms already adopted legally by another, it was (and still is in Scotland) considered an offence. This was because such an act was considered usurpation – challenging the owner’s rights to the coat of arms, as well as their legitimacy as the descendent of the line. Back then, doing so nearly started a war. Between 1559 to 1561, Mary, Queen of Scots, who had a competing claim to the throne of England, publicly displayed the arms of England, thus laying claim not only to England itself but the English Crown. Thiry, an English historian, had suggested that this act brought England and France to the brink of war. So using someone else’s arms is not a small issue. Can you make an artistically inspired version of Jata Negara? Under our laws, you can’t use the coat of arms without the government’s permission, or any colourable imitations. But the term colourable imitations doesn’t just imply a different colour. This term refers to a trade mark test used in intellectual property disputes. Basically, for this article’s context, it’s whether the design on the book cover resembles Malaysia’s coat of arms, or if it’s likely to cause confusion or might deceive. This isn’t heraldic law, which is the laws that govern arms including its design and uses. Under heraldic law, as long as there’s a change in colour or elements in the design, you’re free to use it. In modern intellectual property context, this would be a reproduction of those arms, but with minor changes that may cause confusion or deceive the general public. One example would be the Royal Arms of the UK, and the stylised version which is also used by the UK government. A similar one for Malaysia would be the Jata Negara and the black and white versions of it that you might find on an exercise book cover. Using any version of it without permission can get you in trouble with the law. However, Lawyers for Liberty has claimed that the Rebirth book cover does not resemble the Jata Negara. According to them, the law merely states that you can’t use it without the written permission of the ministry. They also added that there is no prohibition of artistic renditions inspired by the Jata Negara, and no one would mistake it for the country’s actual coat of arms. But whether it’s insult or inspired, we’ll have to wait and see what the case heralds."
"How were Malaysian courts hearing cases during the MCO? We find out At the time of writing, most of us have probably started going back to the office under the relaxed Movement Control Order. You might have mixed feelings about this, especially when you’ve finally gotten used to WFH. Now this whole work from home period might have actually made us tech savvy—as all meetings and work-related stuff would have been done virtually. Similarly judges and lawyers, whose jobs include going to court—had to prepare for online hearings. Generally when people mention courts/cases, we might imagine a courtroom—where the criminal is accused of committing a wrongdoing, the unlucky victim throwing death stares at the criminal, and a whole lot of procedures involved—which brings them to the end product, a verdict from the judge(s) who hears both sides of the story. With all this courtroom drama we’re familiar with (assuming you’ve watched Law & Order), how exactly were cases heard during the MCO period? Nothing really changed...but there are added features We managed to get an insight on how court room hearings were conducted from Wong & Partners—a law firm that was involved in an online virtual ‘trial’ for a case regarding a tax dispute. If you’re wondering what a trial is, it’s the process of finding facts/evidences and presenting it to a judge. So the lawyers here shared some pretty interesting details about how the virtual trial went, and how it was compared to a normal court proceeding. The highlight of the virtual trial was having to do everything via video conferencing platforms (like Zoom and Skype)—which included sharing a particular document or evidence by presenting it online. This somewhat helped speed up the process of the trial, as there was no need for the judges to flick through thick, heavy documents like they would at court. What made the process even faster was that all relevant documents were scanned and sent beforehand to the parties involved. So everyone could already prepare for the trial without having to actually be present at court. So it was basically like an online presentation. But this one comes with a decision at the end...and a person’s life might be at stake. Which brings us to the next question: How did defendants or witnesses handle the virtual court case? [READ MORE: Is it scary being a witness in a Malaysian Court?] The lawyers should talk to the parties before the case If you ever find yourself involved in a virtual court case (which is highly possible now in the new norm), your lawyer will have additional responsibilities to handle before the virtual case hearing. For instance, your lawyer needs to be in touch with the opponent party, the secretaries of the court and the judge to prepare for the hearing. Some of the preps that need to be handled beforehand is, an agreement on which video conferencing platform all the parties are comfortable with, to hear the case. Your lawyer should also brief you on the court attire and how to prepare to answer any questions asked, during the hearing. Here’s a tip the law firm gave us on how to prep for hearings: “...we found that witnesses who can project their statements directly into the camera to be more credible. The video camera should provide a clear and full view of your upper body, rather than pointing overly upwards or downwards.” – Wong & Partners via email to AskLegal. So if you’re a witness in a court case, you should be prepared to be able to answer or give statements via video conferencing during virtual hearings. Your body language will also play a key role during these hearings, so perhaps it might help to drink up on some chamomile tea to soothe your nerves. But from the virtual trial that was conducted by the team, it went well in terms of hearing the trial online—and all parties managed to communicate well, even when a cross-examination happened. A cross-examination is when the defence and prosecution lawyers examine (question) the other parties respectively. [READ MORE ABOUT IT HERE: 4 ways a witness in Malaysian court can remain silent (without getting in trouble)] However, there are some difficulties that courts are facing in the new normal… Online hearings might be tough on criminal cases As much as Malaysian courts are slowly becoming accustomed to virtual court trials/hearings, there have been doubts or questions raised about this. This is especially so in criminal cases, as the criminal might be in a jail cell, or cross-examination might become harder to perform on the parties—due to the nature of the crime. Some lawyers raised this issue as seen below: “As a litigator, a lot will be lost if trials are conducted online…For example if I am conducting a criminal trial and my client is in prison, will I need to be in the same room as him during the online trial?” – Nur Shahidhzul Naqieya to FMT But as we’ve entered the recovery period, post COVID-19—courts are allowed to operate as per usual starting 1st July 2020. However, safety precautions are being taken by courts, as this writer herself experienced it in the Court of Appeal last week. Temperature checks were conducted outside court, and social distancing was upheld along with justice ;)"
"Lelaki ni menyemak peruntukan syariah 'seks luar tabii' S'gor. Kenapa mahkamah benarkan? [Click here for English version] Pada November 2018, 11 orang lelaki dah ditahan oleh Jabatan Agama Islam Selangor (JAIS) kerana cuba melakukan hubungan ‘seks luar tabii’ (dalam kes ni antara lelaki dan lelaki) di Bangi. Mereka ni dah didakwa di Mahkamah Syariah Selangor di bawah Seksyen 28 Enakmen Jenayah Syariah (Selangor) 1995. Setahun lepas tu pada November 2019, lima orang daripada mereka dah disabitkan kesalahan dan dijatuhi hukuman penjara, denda dan sebat. Bagaimanapun, keputusan tu kemudiannya dirayu dan sekarang ni mereka tengah tunggu keputusan dari Mahkamah Syariah. Akan tetapi, masa tu ada seorang aktivis LGBT, Numan Afifi yang memberikan sokongan kepada mereka ni yang juga mempertimbangkan untuk buat semakan perlembagaan terhadap undang-undang Syariah yang digunakan terhadap mereka. Dengan kata lain, mereka nak lihat sama ada undang-undang tu boleh dibuat tak di bawah Perlembagaan Persekutuan. Namun masa tu, tak jelas macam mana undang-undang ni akan disemak, sampailah enam bulan lepas tu, kita tahu jawapannya. Petisyen mencabar kuasa kerajaan Selangor Seorang daripada 11 orang yang didakwa di Mahkamah Syariah tu dah buat petisyen kepada Mahkamah Persekutuan. Dalam petisyennya tu, dia dah cabar kesahihan undang-undang yang digunakan terhadapnya di bawah Perlembagaan Persekutuan. Pada dasarnya, dia kata yang Mahkamah Syariah Selangor tak ada hak perlembagaan untuk buat undang-undang tu sejak awal lagi. Apa yang mengejutkan, Mahkamah Persekutuan kemudianya membenarkan petisyen tu. Ini bermakna, Mahkamah Persekutuan percaya mereka ada kes yang sah dan membenarkan hujah-hujah mereka didengar. Tapi persoalannya sekarang, kenapa lelaki berkenaan dibenarkan buat macam tu? Kami sebenarnya ada dapat salinan dokumen mahkamah untuk kes ni dan kami akan cuba jelaskan tentang keputusan yang hakim dah buat. (MAKLUMAT: Perlu diingat bahawa kes ini tidak mencabar Islam, atau undang-undang Syariah yang mengatur umat Islam di Malaysia. Sebaliknya, ini merupakan cabaran pada kuasa kerajaan negeri Selangor untuk mewujudkan undang-undang ini di bawah Perlembagaan Persekutuan.) Anda boleh cabar undang-undang di Malaysia Pertama sekali, mari kita tengok pada undang-undang Syariah yang dicabar dalam kes ni: Seksyen 28, Kesalahan Jenayah Syariah. Di bawah seksyen ni, melakukan persetubuhan yang bertentangan dengan hukum tabii dengan mana-mana lelaki, perempuan atau binatang dianggap sebagai satu jenayah. Jika disabitkan bersalah, seseorang tu boleh dihukum denda sehingga RM5,000, penjara maksimum enam tahun, disebat tak lebih enam sebatan atau dihukum dengan mana-mana kombinasi hukuman tersebut. Tapi, lelaki tu tak mencabar undang-undang Syariah tu sendiri. Sebaliknya, dia mencabar hak Selangor untuk buat undang-undang tu. Kalau anda masih tak berapa jelas, kita sebenarnya ada hak untuk cabar kesahihan undang-undang tertentu di Malaysia. Hal ni ada dinyatakan di bawah Perkara 4(4) Perlembagaan Persekutuan. Tapi dalam masa sama, kita tak boleh cabar apa je undang-undang yang kita nak. Sebabnya, di bawah Perkara 4(4), kita hanya boleh melakukan hal itu jika undang-undang berkenaan digubal oleh parlimen atau kerajaan negeri, dan mereka sama ada – tak mempunyai kuasa atau ia tak berada di bawah skop mereka. Jika salah satu dari perkara ni terpakai, barulah ia boleh dibawa ke Mahkamah Persekutuan. Namun begitu, ia masih kena dapatkan kebenaran daripada hakim mahkamah – atau dengan kata lain, mereka memberikan laluan untuk anda melakukannya. Bila hakim Mahkamah Persekutuan buat kebenaran tu, ada dua sebab kenapa ia dilakukan: Pertama, bahawa itu bukan proses mahkamah yang sembrono atau disalahgunakan, yang bermaksud kes ini benar-benar serius dan anda tak membuang masa mahkamah. Kedua, kes itu adalah mengenai kerajaan negeri yang membuat undang-undang yang berada di bawah skop kerajaan persekutuan. Hanya boleh ada satu undang-undang Untuk faham kenapa cabaran ni dibenarkan, pertama sekali kita kena tahu yang kerajaan persekutuan dan negeri ada kuasa untuk buat undang-undang. Kami pernah terangkannya dalam artikel sebelum ni. [BACA LAGI: Azmin says businesses can sue state government for not following CMCO. But is this true? ] Pada asasnya, Jadual Kesembilan Perlembagaan Persekutuan ada senarai yang nyatakan bidang apa yang setiap kerajaan boleh buat undang-undang. Senarai I, tentang bidang yang Kerajaan Persekutuan boleh buat undang-undang. Senarai II dan IIA, tentang bidang yang Kerajaan Negeri boleh buat undang-undang. Senarai III, tentang bidang kedua-kedua kerajaan boleh buat undang-undang. Kalau kita tengok pada Senarai II, kita akan nampak yang kerajaan Selangor boleh buat undang-undang tentang: “pewujudan dan penghukuman kesalahan yang dilakukan oleh orang yang menganut agama Islam terhadap perintah agama itu, kecuali berkenaan dengan perkara yang termasuk dalam Senarai Persekutuan.” Ini maknanya, mereka boleh buat undang-undang mengenai kesalahan agama orang Islam, tapi hanya kalau Kerajaan Persekutuan belum buat undang-undang mengenainya. Bagaimanapun, sebenarnya kerajaan Persekutuan memang dah ada undang-undang berkait dengan Seksyen 28. Undang-undang tentang seks luar tabii ni ada dinyatakan di bawah Seksyen 377 dan 377A, Kanun Keseksaan. Inilah apa yang lelaki tu cuba hujahkan, iaitu kerajaan Selangor dah bertindak di luar skopnya apabila membuat undang-undang yang dah dibuat oleh Kerajaan Persekutuan. Nampak sama, tapi undang-undang yang berbeza Seperti kes mahkamah yang lain, kerajaan Selangor lepas tu membantah cabaran yang dihadapkan kepada mereka. Mereka juga ada hantar hujah-hujah awal kepada hakim tentang petisyen tersebut. Hakim menjawabnya dan memasukkan komentarnya dalam penghakiman. Hujah 1 Peguam kerajaan Selangor berhujah yang Seksyen 28 undang-undang negeri tak sama dengan apa yang dinyatakan dalam Seksyen 377A, Kanun Keseksaan. Kedua-dua undang-undang ni menyatakan hukuman yang berbeza. Oleh itu, permohonan tu disifatkan sebagai semberono dan bermakna kes itu tak ada asas serta harus ditolak. Dia juga menambah yang orang Islam ditadbir oleh dua undang-undang iaitu undang-undang yang digubal oleh Kerajaan Persekutuan dan undang-undang dari kerajaan negeri yang merangkumi isu-isu agama. Tapi, dia faham di bawah Seksyen 59 Akta Tafsiran, seseorang tu tak boleh didakwa dua kali untuk jenayah yang sama, jika jenayah itu di bawah dua undang-undang bertulis. Jadi secara teknikalnya, seseorang yang melakukan jenayah di bawah undang-undang persekutuan atau undang-undang negeri, boleh didakwa di salah satu mahkamah. (Catatan: Ini boleh dimaknakan bahawa tak ada masalah tentang undang-undang mana yang dikenakan untuk kesalahan yang sama. Selagi anda hanya didakwa sekali. Ulasan hakim di bawah akan menjelaskan perkara ini) Ulasan hakim: Perbezaan antara undang-undang negeri dan undang-undang persekutuan bukanlah isu konklusif, kerana persoalan utamanya adalah adakah kerajaan negeri mempunyai kuasa untuk membuat undang-undang tersebut. Begitu juga, hakim memberikan pandangan yang sama mengenai hujah seterusnya. Dia menafsirkan peguam Selangor sebagai berkata, tak mengapa seseorang tu didakwa mengikut Seksyen 28, selagi dia tak didakwa mengikut Seksyen 377A Kanun Keseksaan. Tapi, hujah itu tak merangkumi sama ada kerajaan negeri mempunyai kuasa untuk membuat undang-undang tersebut. Hujah 2 Peguam Selangor berhujah yang kerajaan negeri ada hak untuk buat undang-undang Islam. Seksyen 28 merangkumi hal berkaitan seks luar tabii dan ia dianggap bertentangan dengan ajaran Islam. Ulasan hakim: Dia bersetuju yang umat Islam di Malaysia tertakluk kepada dua undang-undang yang berbeza. Tapi, undang-undang yang dibuat oleh negeri-negeri mesti terlebih dulu berperlembagaan – yang bermaksud undang-undang negeri tak boleh bertentangan dengan undang-undang persekutuan. Secara ringkasnya, kes ni nak lihat peruntukan tu sah atau tak Kami sebenarnya cuba nak terangkan kes ni semudah yang boleh, tapi kami faham yang ia masih lagi sukar difahami. Tapi secara umumnya, apa yang jadi dalam kes ni adalah seorang lelaki dah didakwa atas kesalahan seks luar tabii di Mahkamah Syariah Selangor. Dia kemudiannya pergi ke Mahkamah Persekutuan dan kata yang undang-undang kerajaan Selangor tu tak berperlembagaan. Atau dengan kata mudahnya, kerajaan Selangor tak ada hak untuk buat undang-undang tu. Peguam kerajaan Selangor pula kemudiannya kemukakan beberapa hujah kepada mahkamah tentang sebab kenapa mereka ada hak untuk buat undang-undang tu. Tapi pada pandangan hakim, hujah-hujah tu tak menjawab sama ada kerajaan negeri – ada hak untuk buat undang-undang di bawah Perlembagaan Persekutuan. Hakim juga berpandangan yang kes ni dah cukup baik untuk dibawa ke Mahkamah Persekutuan – mahkamah tertinggi Malaysia. Itulah secara ringkasnya. Perlu diberikan perhatian juga yang ini bukanlah penghakiman ke atas kes tersebut. Sebaliknya, ini adalah penghakiman sama ada kes itu dibenarkan untuk berlaku sebenarnya. Oleh itu, kita masih perlu tunggu dan tengok hasilnya nanti. Tapi, kalau lelaki tu menang dalam kesnya, itu juga tak bermakna yang undang-undang Syariah tak akan terpakai terus di Malaysia. Sebabnya, ia hanya menjelaskan bidang mana undang-undang Syariah boleh digunakan."
"A student who was bullied is suing her school AND the Malaysian govt for RM2 million On 27th June 2020, The Star reported that a student was suing a few people, including her school, for a whopping RM2 million. She was said to have been severely bullied in 2019 by a classmate, and as a result, ended up being admitted in a psychiatric ward. The bullying is said to have taken a huge toll on her and so, on her behalf, her mother filed a case in the Temerloh High Court against: the bully himself (sued through his father) the principal of the school the education director-general the government of Malaysia Note: the mother is suing the bully’s father, because technically, minors can’t sue or be sued. You might have a lot of questions at this point, like why is she suing for such a big sum, or why is she suing the principal and government instead of just the bully alone. We’ll explain these later in the article, but before that you should know that… There are no laws against bullying ...not specifically, at least. We’ve written an article on this, which you can read here. But basically, bullying itself isn’t actually a crime in Malaysia until there’s physical harm or death, or a threat to safety involved. Only in those instances can a bully be charged with crimes such as physical intimidation, assault or even manslaughter. Children who do physically bully others can be tried in a special court for minors. [READ MORE: Did you know Malaysia has a special court for CHILDREN who commit crimes?] In this case, there has been no mention of a criminal case being filed against the alleged bully, and we only know that he is being sued for a civil wrong. Now, it doesn’t mean automatically mean that if someone can’t be punished under criminal law, they have to be sued instead. So, why is he being sued then? As mentioned earlier, the victim’s mother said that as a result of the bullying, her daughter has been seeing a psychiatrist. She’s also been put under medication. Understandably, this would be a financial burden to the parents. Under civil law, you can claim damages (monetary compensation) from someone who has caused you harm. So, this is why the student through her mother, is suing the bully...through his father. It would make sense for her to sue the bully as he had directly caused her harm. But why was she also suing the school? The school is said to be responsible The school is also being sued because it is presumed that they also had a part to play in this. This may confuse you, but this is where we’ll explain the tort of negligence, which is a civil wrong you can sue someone for. You can sue someone for negligence if their carelessness had resulted in you suffering some harm. In order to sue someone for negligence, you’ll need to prove that: They had a duty of care towards you They had breached of that duty That breach must have caused you a harm in fact The harm must be not too remote a consequence of the breach So for the student to successfully sue the school, she’ll need to prove that: the school (teachers, principal, etc.) had a legal responsibility to make sure she was safe in the school the school had failed to carry out that duty she had suffered harm due to the fact that the school failed to carry out its duty the harm she suffered must have been foreseeable; ie, the bullying would very likely have taken place because the school was not doing its job As for why she’s suing the education health general and government of Malaysia, for now it is presumed that they also had a duty of care towards her, which they failed to fulfill. But whether she will be able to successfully sue them in court for negligence, is another thing. Many others have sued their schools too For now, this is all the information we have on this student’s case and we’ll update this article when a judgment is passed. While a victim of bullying suing their school may sound new to you, this actually isn’t the first time this has happened. In 2017, a boy from Terengganu sued several parties as he had lost his hearing from all the physical bullying he had endured. He sued his 5 bullies, the school principal, the Malaysian government and two more people for RM2 million. The court ruled in his favour and granted him RM616,634 as compensation. Another father sued his son’s school and teacher, also in 2017, for being negligent when his son was bullied. If you’re wondering why people sue for such large sums, its because in cases like this, the victim would have to bear the costs of therapy, medication, legal fees and so on. While these people have taken their cases to court, we know that it isn’t always easy to speak up when one is bullied. If you or someone you know has been/is being bullied, you can reach out to the following channels for help: Befrienders: 03-7956 8144/ 03-7956 8145 Talian Kasih: 15999 Protect and Save the Children: 03-7957 4344/ 016-227 3065"
"Are digital signatures legal in Malaysia? Electronic signatures aren’t exactly something new. This writer actually started seeing it around 2010, but it wasn’t exactly something sophisticated. It was basically an image of a general manager’s signature, inserted into customised letter templates to be printed en masse. Its purpose was mostly to save the general manager from having to sign 200 plus letters. But now in 2020, it’s starting to get more and more common. With the recent MCO, some of you might have started digitally signing some documents, because all meetings were limited to online spaces only. Even your abang delivery would sometimes ask you to sign on their phone, instead of doing so with a pen and paper. With how ubiquitous it is now, are digital signatures actually legit? Could you sign cheques or even contracts with it? We looked into it, and we found out that the answer is yes...and no. But first, let’s look into what signatures really are under the law. Signatures are just a sign of intent Signatures aren’t just a squiggly version of your name at the bottom of your contract. At its heart, the purpose of a signature is a way to prove that you have authorised or agreed to something. So for example, in a contract, signing your name means that you agree to follow the terms and conditions inside it. Similarly, when you sign your name when getting a delivery, you’re just confirming that you got the package from the courier. But guess what: your signature isn’t even necessary for an agreement. That’s just one way for you to agree to a contract. You could even verbally agree with someone, and that is considered agreeing to a contract. Under Section 2(h) of the Contracts Act 1950: “an agreement enforceable by law is a contract;” This just means that if the agreement fulfils all the requirements under the Act, it becomes a contract, even if it's not put in writing. And there are a few basic ingredients for a contract, which is stated in Section 10(1) Contracts Act 1950: “All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.” So if you and another person agree to do something, without being coerced into it, that automatically makes it a contract. But do note that unwritten contracts aren’t binding for everything; we are just showing how your signature is just one way to agree to a contract. To read more on verbal agreements, you can read the link below. [READ MORE: Is an unwritten promise legally binding? ] So where does this put digital signatures? As we found out, they’re actually quite legit. In fact... Digital signatures have been legit since ‘97 First, you’ll need to know the difference between a digital signature and an electronic signature. They might be used interchangeably, but there is actually a distinction between them. Digital signatures would usually come with a digital certificate, which would verify the identify of the person signing it. An electronic signature, on the other hand, is quite varied. It is usually an image of a handwritten signature, created by scanning a signed document, but it can be almost anything created using a computer, which we’ll explain later. Digital signatures have been legally recognised in Malaysia for more than 20 years. This was done in 1997 through the enactment of the Digital Signature Act. However, the recognition is for a specific technology to sign a document. Under the Act, a digital signature is defined as: “signature which uses an asymmetric cryptosystem that is verified by reference to the public key listed in a valid certificate issued by a licensed certification authority”. Basically, the only recognised digital signature is one that has a certificate to verify it. However, the key thing is that it’s recognised to be as legally binding as a handwritten signature. However, other forms of electronic signatures were also recognised after that, with the enactment of the Electronic Commerce Act 2006. This Act expands the definition of what can be considered as an electronic signature. Under the Act, it’s defined as: “...any letter, character, number, sound or any other symbol or any combination thereof created in an electronic form adopted by a person as a signature…” So nearly anything you want can be used as an electronic signature. It could be an image of your handwritten signature, or even a combination of letters like xXx_ThEd4RKn355WiTh1nME_xXx. So we know that digital signatures are totally legit. But what about electronic signatures? We looked into it, and we found out that not only can it be legit, we also found that... Even an SMS can be considered as an electronic signature For an electronic signature to be considered legit, it will have to fulfil three requirements: It is attached to the electronic message; It adequately identifies the person and his approval of the information it relates to It’s reliable and appropriate for the purpose To know whether it’s reliable, it needs to meet another three conditions: Only one person could have created and sent the signature Any changes made to the signature after signing is detectable Any changes made to the document after signing is detectable These three conditions might seem difficult to follow, because nowadays anyone can just photoshop someone’s signature. But a court case in 2014 demonstrated that determining the legitimacy of a signature isn’t that hard. This was proven in the case of Yam Kong Seng & Anor v Yee Weng Kai (2014). One of the points in the case was whether agreeing to pay someone back through an SMS made it legally binding. The judge agreed that it was so, by saying that: Under the ECA...where any law requires a signature of a person on a document, the requirement of the law is fulfilled if the document is in the form of an electronic message (the SMS in this case)... For purposes of this appeal, the legal requirement for a signature was fulfilled as...the sender was adequately identified… The telephone number of the respondent from which the SMS was sent confirmed that it came from the respondent as the registered owner of that telephone… There was no probability of successfully rebutting the respondent being the sender as the respondent himself admitted sending the message. So even agreeing with someone through an SMS could be considered as an electronic signature. Their identity could also be verified, as it was sent from a specific person’s number. But before you decide to throw out all your pens and sign everything digitally, do know that... There are contracts that you need to sign with ink Under the Electronic Commerce Act, some documents can’t be signed with an electronic signature. You would need to sign these documents with pen and paper. These documents are: Power of attorney – A document that allows you to appoint a person or organisation to manage your property or financial affairs The creation of wills and codicils – Codicils are basically additional info you add to a will The creation of trusts Negotiable instruments – Things such as cheques or deposit certificates So in a sense, you can sign most documents now using an electronic signature, or the more secure digital signature. But even if you can, the general advice is to sign certain documents the old fashioned way. For example, if it’s a complex contract that would involve a lot of your money, it’s probably best to read the printed out version, and sign it with pen on paper. At least, you’ll have your proof in black and white if anything happens, and also your peace of mind intact."
"Malaysian employers can fire you even if they can't prove ALL your misconduct. Here's how Imagine this scenario: You’ve been working in the same company for more than 15 years now. You’ve been getting promotions year after year, until you finally reached the top of the hierarchy today. Now that you’ve become a senior manager, you have power to do a lot of things...which you take advantage of during that time. But your glory days didn’t last long because you come into office one day—just to receive a surprise letter from your boss, which states that you’ve been terminated for 30 over misconducts committed while you were senior manager. Shocked and upset about how unfair your company has been—you decide to take some sort of legal action against them for firing you without any proof on all 30 misconducts. Now if you’re an avid AskLegal reader, you might have read at least one of our employment articles about being fired (we think about this a lot)—and you might be familiar with the laws in the event you’re fired. But if you’re not, fear not as we’ll briefly discuss it below... Your boss cannot fire you for no reason In Malaysia, employers are required to give their employees a reason when firing them. This is known as termination with just cause and excuse. Under the law, this means that if your employer fired you without giving you a proper reason, or gives you an invalid reason, you might be able to bring them to court. But take note: This only applies to employers. Employees don’t have to provide a reason when they resign. According to Section 20(3) of the Industrial Relations Act 1967 (IRA 1967), employees who feel that they were dismissed without just cause and excuse (aka unfair dismissal), can write in to the Director General of Industrial Relations in order to request for his job back: ""Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment..."" Now there’s no set definition for what amounts to just cause and excuse, because what is considered a just cause (reasonable cause), differs from one situation to another. It can range from employee misconduct such as theft, fighting in the office and continuous tardiness. The employer must also be able to prove the misconduct, which led to the unfair dismissal. But whether or not your actions lead to you being fired, your boss MUST give you a reason for firing you. But in 2017, an employee brought a case against the company he worked for because he claimed that he was unfairly dismissed. But the Industrial Court told him something else... He was fired for 28 misconducts, but the company only proved 7 In Dewalaxhmana A/L S Param v Weststar Aviation Services Sdn Bhd, the employee who was fired brought a case against his company in the Industrial Court. The employee claimed that he was unfairly dismissed, after getting a show cause letter from the company for 28 charges of misconduct he had allegedly committed. The employee was previously the HR Director in the company, and earned up to RM33,500/month. He was even given his own company car and driver. So basically he was ballin’ hard with the position he held in the company. Now listing all 28 charges would mean you’d finish reading this article 3 days from now. So we’ll just fast forward to the part where both parties went to court, because the employee felt that he was unfairly dismissed by the company. At the Industrial Court, the employee brought a case claiming that he was fired abruptly, and wasn’t given a chance to defend himself for the 28 charges against him. But the company didn’t actually bring up all 28 charges at court, but only relied on 7 wrongdoings he conducted. Some of these wrongdoings include: Convincing the company to give him an increment Manipulated an employee and made her end her probation period earlier Misleading the management on EPF/tax deductions Raising his voice on another employee of the company Now as we mentioned earlier, it’s the responsibility of the company to show that the employee had committed misconduct to the court. So when it came to proving this, the employers brought a few witnesses to further back their allegations against the employee. And based on that proof, the court concluded that the employee was only liable for 4 misconducts, instead of 7 that the company had initially argued. Now this might seem a bit unfair, as the employee now seems to have been punished severely for the misconducts—by being fired, based on only 4 charges. But the main job of the Industrial court, is to place more importance on fairness rather that following proper legal procedures in cases involving unfair dismissal. Section 30(5) IRA 1967 states: ""The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form."" In other words, the court has the responsibility to make sure decisions are made based on the severity of the misconduct, and the facts of the case. So in this story, the courts felt that they could still rely on the 4 charges against the employee—instead of all 7 which was initially brought to court. Here’s how the court put it: The misconducts involving the...charges that the Court found him guilty were serious in nature. The Claimant had breached the fundamental terms of...confidence between employer and employee by his actions. The Court opines that no reasonable employer would in this case have retained the Claimant in its employment on the...charges as above. It was not a suitable case for letting the Claimant off lightly with just a warning – YA Puan Noor Ruwena Binti Dato’ Mohd Nurdin, Chairperson of the Industrial Court. So although the company could not prove all the misconduct committed by the employee, the court felt that the company managed to prove the severity of some of the charges against the employee—which makes the dismissal against him fair. But if you’ve ever been fired and you really didn’t do anything to deserve it… You can sue your boss and your company Now if you feel that you have been unfairly fired, especially during this period—you may bring a case to the Industrial Court. The court will take into account the welfare of employees who have been unfairly dismissed. Those wanting to file a claim for unfair dismissal are given 60 days from the time they are dismissed to do so, and this can be found in Section 20 of the Industrial Relations Act 1967: “The Director General shall not entertain any representations under subsection (1) unless such representations are filed within sixty days of the dismissal” But here’s some good news! The government has clarified in a set of FAQs that the 60 day limitation will only start from the time the MCO is lifted, and not from the day you were dismissed. [READ MORE: My boss just fired me for no reason, what can I do now?] Also, if the court finds that you have been unfairly dismissed, you’re entitled to certain benefits. Employees who have been unfairly dismissed are entitled to claims stated under the Employment (Termination and Lay-off Benefits) Regulations 1980. [READ MORE: M'sian workers who are fired can now claim unemployment benefits. Here’s how] However, some companies have their own policies and regulations on termination benefits. So, it would be best to check with your company first."
"If a tenant damages your property in Malaysia, here's what you can do Imagine this: You own a beautiful apartment in the heart of the city which you’ve rented out. One day you get a text from your tenant saying that an accident had happened in your home. The tenant had left the stove on for too long and there had a been a small fire, resulting in a wall in the kitchen burning. There’s now a hole in the that wall and it needed to be fixed urgently. Your tenant apologizes but says that it was a genuine mistake, and does not want to pay for any repairs. Understandably, you would be flustered. But you also might wonder if your tenant can actually get away without paying, simply because it was an accident. Good news: they’ll still have to pay. But you don’t have to call your lawyer just yet, because there are a few things you yourself can do to get them to pay up. Check your tenancy agreement Before we talk about tenancy agreements, here’s one thing we must clarify for you: There are no laws specifically for landlords and tenants in Malaysia. There were talks of enacting such a law in 2019, but as of today, there have been no further updates on it. However, this does not mean that there is no way for landlords and tenants to safeguard their rights. In fact, some parts of contract law such as the Specific Relief Act 1950 can work to cement landlord-tenant relationships. [READ MORE: If tenants don't pay rent, what can Malaysian landlords do?] This is where tenancy agreements come into the picture. A typical tenancy agreement will list down the duties and responsibilities of both the parties. Under these, there would also be a clause which states that the tenant is responsible to maintain the home in a “tenantable” condition. In other words, they must take good care of your home and ensure that is not damaged during their tenancy. So, if your tenant has failed to take care good care of your home, this is the clause that will hold them responsible for it. After you’ve confirmed that your contract does have this clause and you can indeed take action against your tenant, the next thing to do would be to check the extent of the damage. Assess the damage If the damage is small, like a faulty door lock, the process is a lot simpler. If you remember, you would have collected a security deposit from your tenant at the start of their tenancy. For small damages, this security deposit can be used to pay off for any repairs. But what if you find out that the damage is actually pretty bad, like a burnt wall? In cases like this, the process is longer and can even involve the police. This is what you’ll need to do: Inform your tenant that you’ll be dropping by for an official inspection. Specifying a time and date is advisable Take someone with you for the inspection as a witness, and make sure to take photos of the damage as evidence Make a list of all the damages you see and have the tenant sign it. They’ll need to officially acknowledge that they’ve caused the damage You’ll then need to make a police report with all your evidence you have. A report is needed when the damage is major Get a contractor to give you a quotation for the repairs. You’re not allowed to renovate and upscale the part that was damaged if you’re expecting your tenant to pay for it. So, restore it to only what is used to be Send this quotation to your tenant so he’ll know how much he needs to pay. If he feels it’s too high, he’s allowed to get a contractor of his own for a cheaper price, as long as the repair work is done properly You can either pay first and have your tenant pay you back, or he can pay for it first If the damage was so bad that the house could no longer be used until it was repaired, you can also claim compensation for a loss of rental for those months But let’s say that your tenant refuses to pay a single cent, or refuses to accept the blame in the first place. If that’s the case, you have the right to take him to court. Sue if your tenant refuses to pay If your tenant is refusing to pay up for a damage they themselves caused, you can sue them for a breach of contract. To prove a breach of contract, one party of the contract must have failed to keep to their part of the agreement. So, if your tenant had signed the tenancy agreement promising to keep the house in a good condition but failed to do so, they can be held responsible for that. Once you’ve filed a case, the court will send your tenant a writ of summons, a document which will ask him to appear in a court. This type of writ is also sent when someone owes another person money, like a tenant who does not want to pay for damages. Even if your tenant does not respond to the writ, the case can go on without him and the court can still give a judgment against him. If you can successfully prove your case, not only will your tenant need to pay for the repairs, but they will also need to pay you a separate compensation for failing to keep their part of the agreement. However as we all know, lawyers can be expensive and the process of going to court can take a long time. So, try and come to an agreement with your tenant first unless they’re really not budging, in which case you will have to give your lawyer a call."
"5 taktik jualan yang biasa kita nampak, tapi sebenarnya salah  [Click here for English version] Sekarang ni, macam-macam cara kita dengar orang buat untuk tipu pengguna, contohnya ayat biasa ni: “PM tepi kalau nak tanya harga”. Walaupun di luar sana banyak je peniaga yang jujur, tapi ada je yang guna taktik untuk menipu kita semua. Yang terlibat dengan penipuan ni bukan peniaga biasa-biasa je, tapi kadang-kadang tu – syarikat-syarikat yang ada nama pun terlibat sama. Salah satunya macam LuxStyle yang minta pengguna daftar alamat dan emel diorang kalau nak tahu harga produk. LuxStyle ni kemudiannya akan hantar barang tu kepada mangsa dan minta bayaran atau barang tu akan dikembalikan dengan perbelanjaan mangsa. Ramai mangsa dari serata dunia dah masuk perangkap penipuan LuxStyle ni, termasuklah dalam kalangan rakyat Malaysia sendiri. Pusat Khidmat Aduan Pengguna Nasional juga dah keluarkan kenyataan supaya mangsa tak buka atau guna barang yang dihantar dan abaikan segala permintaan bayaran dari LuxStyle. Disebabkan banyak kes penipuan macam ni, ia juga menimbulkan persoalan tentang: Apa hak pengguna terhadap perniagaan tak jujur ni? Maka, sebab itulah kitorang senaraikan 5 taktik jualan yang mungkin korang pernah jumpa dan apa hak korang untuk berdepan dengan diorang ni. 1. “Berminat? PM tepi untuk harga” Ceritanya mudah je, ada orang post di Facebook dan kata “Basikal untuk dijual. PM tepi untuk harga”, tanpa tunjukkan gambar basikal tu. Korang pun PM lah si penjual tu, tapi dapat tahu harga basikal tu lebih tinggi dari harga pasaran dan basikal tu juga sebenarnya dah tak boleh pakai. Inilah antara amalan tak beretika yang sesetengah penjual dalam talian gunakan untuk tipu pengguna dan ambil duit korang. Disebabkan kes ni banyak sangat terjadi, makanya Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna dah memperkenalkan Peraturan-peraturan Pelindungan Pengguna (Urus Niaga Perdagangan Elektronik) 2012, yang memerlukan perniagaan dalam talian untuk mendedahkan 8 maklumat berikut kepada pelanggan. Nama penjual (sama ada orang, perniagaan atau nama syarikat) Nombor pendaftaran perniagaan atau syarikat (jika ada) Butiran menghubungi penjual atau perniagaan (emel, no telefon, alamat) Perihal tentang ciri utama barang atau perkhidmatan yang disediakan Harga penuh barang atau perkhidmaran, termasuk kos pengangkutan, cukai dan apa-apa kos lain Kaedah pembayaran Terma dan syarat Anggaran masa penghantaran Sebenarnya, kementerian dah kuatkuasakan undang-undang ni sejak 1 Julai 2013 lagi, selepas beri masa yang agak lama kepada penjual untuk suaikan diri. Tapi, kalau korang jual barang lama atau belum dipakai di media sosial dan laman web seperti Mudah.my, ia tak terpakai terhadap korang sebab korang tak menjalankan perniagaan dalam talian. 2. Kualiti dijamin!! Dijamin puas hati!! 2 juta pengguna tak mungkin salah!! Walaupun adanya label macam ni, tak ada jaminan semua produk yang kita dapat tu berfungsi dan perkhidmatannya pula memuaskan. Jadi, ia membawa kita ke Seksyen 32, Akta Perlindungan Pengguna 1999 yang menyatakan dengan jelas bahawa, jika sesuatu barang dibekalkan kepada pengguna, maka hendaklah tersirat jaminan bahawa barang itu adalah daripada “kualiti yang boleh diterima” berdasarkan harga dan jenisnya. Ini bermakna, kalau korang beli telefon berharga RM3,000, korang kenalah dapat yang kualiti dan ciri-cirinya lebih baik dari telefon berharga RM800. Bagaimanapun, kedua-dua telefon tadi mestilah boleh berfungsi dengan asasnya seperti: menelefon dan SMS. Apa yang dianggap sebagai “kualiti yang boleh diterima” ada diterangkan dalam Seksyen 32(2), Akta: “… barang itu adalah bersifat daripada kualiti yang boleh diterima – (a) jika barang itu – (i) sesuai bagi semua maksud yang baginya barang daripada jenis yang berkenaan itu lazimnya dibekalkan; (ii) dapat diterima dari segi rupa dan kemasan; (iii) bebas daripada kecacatan yang kecil; (iv) selamat; dan (v) tahan lama… Perkhidmatan juga tak terkecuali dan perkara itu dinyatakan di bawah Seksyen 53 akta sama. Dinyatakan, sesuatu perkhidmatan tu mestilah dijalankan dengan “ketelitian dan kemahiran yang munasabah”. Hal ni pada dasarnya diterjemahkan kepada standard kemahiran dan penjagaan yang diamalkan oleh majoriti orang lain dalam pekerjaan yang sama. Contoh mudah – Doktor mesti ikut standard doktor lain, dan peguam mesti penuhi standard peguam lain. 3. Promosi sihat tubuh badan dan meningkatkan tenaga badan anda Kebarangkalian korang ternampak iklan “ubat kuat lelaki – 100% efektif” atau “ubat segala penyakit” di internet atau di tepi jalan memang besar sekali di Malaysia ni. Kalau baca iklan-iklan ni, memang macam-macam yang diorang kata, sampai kadang-kadang tu boleh sembuhkan kanser dan bersihkan darah! Tapi sebenarnya, Seksyen 10, Akta Perlindungan Pengguna 1999 dah nyatakan yang dakwaan palsu dan mengelirukan ni sebagai salah. Dakwaan tu termasuklah jenama, model, gaya dan sebagainya. (Korang boleh tengok dalam akta untuk tahu lebih lengkap). Ini maknanya, apa-apa je ciri yang pembekal tu kata tak betul, ia boleh dianggap sebagai melanggar undang-undang. 4. Edisi terhad! Sementara stok masih ada!! Untuk masa terhad saja!!! Sejak dulu sampailah sekarang, kita semua dah dihidangkan dengan taktik jualan “edisi terhad” dan “sementara stok masih ada” ni. Ada juga yang buat taktik “untuk masa terhad saja”, tapi dia tak nyatakan sampai bila masa terhad tu. Sepatutnya, kalau dah kata “masa terhad” tu, diorang kenalah beritahu sampai bila, supaya semua orang tahu. Seksyen 15(1), Akta Perlindungan Pengguna 1999 menyatakan – tak ada perniagaan yang boleh mendakwa sesuatu barangan tu sebagai “terhad”, kecuali adanya kuantiti maksimum yang telah ditentukan sebelumnya, atau ada masa yang terhad untuk barang-barang itu tersedia. Seksyen 15(2) pula menghendaki peniaga menyatakan dengan jelas: Kuantiti maksimum barang yang ditawarkan untuk jualan Tempoh masa dan tarikh tertentu barang itu ditawarkan untuk jualan Jika korang disabitkan kesalahan menyembunyikan maklumat ini, Seksyen 25 memperuntukkan denda sehingga RM250,000 (RM500,000 untuk kesalahan berulang) dan jika dilakukan secara individu pula, boleh didenda sehingga RM100,000 atau penjara 3 tahun atau kedua-duanya (didenda RM250,000 dan penjara sehingga 6 tahun untuk kesalahan berulang). 5. RM9.99 sahaja! *tertakluk kepada 10% SST & 6% caj perkhidmatan* Lepas kerajaan perkenalkan Akta Cukai Barangan dan Perkhidmatan 2014, kadang-kadang tu kita ada rasa terkeliru juga sebab ada peniaga tertentu yang asingkan GST dalam harga mereka. Ada juga yang kata harga mereka tu sebagai “tertakluk GST dan Caj Perkhidmatan”. Lebih mengelirukan bila ada peniaga yang pamerkan harga tanpa beritahu pengguna yang harga tu termasuk GST ke tak. Perkara yang agak sama juga jadi bila kerajaan perkenalkan semula Cukai Jualan dan Perkhidmatan (SST) pada 2018. Berdasarkan Akta Kawalan Harga dan Anti-Pencatutan (Pindaan) 2017, Seksyen 10B dah ditambah yang memperuntukkan hal pameran harga. Ia menyatakan, harga sebarang barangan atau perkhidmatan kena dimasukkan semua sekali cukai, duti dan caj kerajaan, termasuk juga sebarang caj lain seperti caj penghantaran dan perkhidmatan dalam harga tersebut. Ni maknanya, peniaga tak payah kata “tertakluk kepada 10% SST dan 6% caj perkhidmatan”. Senang kata – korang hanya bayar harga yang ditunjukkan. Jadinya, mulai sekarang kalau korang jumpa orang buat sign harga macam tu, korang tegur-tegurlah diorang. Sebab apa yang diorang buat tu dah melanggar peruntukan akta. Tapi ia juga buatkan kita terfikir… Dekat siapa kita boleh buat aduan? Bila bercakap soal melindungi hak pengguna, ada dua tempat yang korang boleh pergi untuk buat aduan dan dapatlkan keadilan, iaitu: Pusat Khidmat Aduan Pengguna Nasional (NCCC) Kalau korang ada perkara yang dipertikaikan dan syarikat itu pulak tak nak bekerjasama, tempat inilah yang korang kena pergi. Korang boleh dapatkan borang e-aduan diorang di sini. Walaupun begitu, untuk lebih mudah – korang cubalah selesaikan pertikaian tu dengan cara baik dulu, sebelum bawanya ke peringkat ni. NCCC juga ada berikan beberapa garis panduan di sini tentang cara menghubungi syarikat yang korang ada masalah tu. Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna Di sinilah korang boleh failkan laporan terhadap syarikat yang melanggar undang-undang dalam Akta Perlindungan Pengguna. Hal itu termasuklah perkara seperti iklan yang mengelirukan, sijil halal palsu, barang tak sempurna dan bahaya, harga predatori dan sebagainya. Aduan tu boleh dibuat di sini. Satu lagi, korang tahu tak yang gim tak dibenarkan menafikan bayaran balik (refund) bila korang nak batalkan keahlian? Diorang tak boleh buat macam tu dan hal ni ada dibincangkan oleh Donovan & Ho dalam artikel diorang. Bacalah kalau korang berkelapangan."
"A Malaysian hostel has 'banned' locals from entering. Can they legally do that? “No shirt, no shoes, no service.” You’ve probably seen signs such as this in front of clubs or restaurants. And it might not seem like a big deal. It’s pretty common for private establishments to establish their own dress code, so to speak. If you happen to wear a pagoda singlet and slippers, and are turned away at the door by the bouncer, you might think, fair enough. But what if you’re turned away because of your nationality? And what if you’re turned away for being Malaysian...in Malaysia? Can you refuse a local in their own country? Recently, social media was abuzz when they heard that Reggae Mansion, a two-star hostel in Kuala Lumpur, was said to allegedly refuse guests of certain nationalities, including Malaysians. Screenshots of TripAdvisor reviews about the place was posted by famous Twitter personality @Iqtodabal. In these screenshots, a Pakistani claimed that his booking was cancelled, due to his nationality. In another review, another foreign guest said that his friend, who was a local from Kuching, was denied entry into the hostel’s bar. Even their policy on TripAdvisor states that they do not accept online bookings from “Malaysia, India, and middle east countries (sic)”. Oddly enough, they claim that they’ll only accept walk-ins if you’re from these countries. However, Reggae Mansion have defended themselves before by saying the ‘ban’ is for religious reasons, as they serve alcoholic drinks. But then, this does raise the question: can a hostel actually do that? As it turns out… Their place, their rules First thing you have to know, is that hostels such as Reggae Mansion is a private property. As such, the owners of that private property can impose any rules they want to on the place. This means that if you enter their premise, you’re bound to their rules. So if they expect you to wear a suit and tie to enter, they can do so. Similarly, if they refuse to let you in because of your passport (or IC), that is also within their rights. We’ve covered a similar topic before, where we discussed whether you can bring outside food into a restaurant. You can read the full article below. [READ MORE: Can Malaysian restaurants legally stop you from bringing outside food? As an extension to that, owners of a private property can also kick you out for not following their rules. The owners can say that you did not meet the conditions of entry and eject you. If you refuse to leave, however, you can be charged for trespassing. This is called a “criminal trespass” under section 441 of The Penal Code: 441. Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property; or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”. You can also be fined up to RM3000 and/or jailed for up to 6 months under section 447 of The Penal Code. 447. Whoever commits criminal trespass shall be punished with imprisonment for a term which may extend to * six months or with fine which may extend to *three thousand ringgit or with both. Do note that we’re not saying what they’re doing is okay. We’re just pointing out the rights of a property owner in letting who they want into their premises. But if you don’t agree with what they do, the simplest way to do so is to... Vote with your wallet Some of you might think that it’s morally wrong to refuse to serve someone, just because of their nationality or race. Surely Malaysia would have provisions against that? We’ve tried looking, but there are no laws against refusing certain people into your private premises. So there is no legal avenue to complain against them, simply because it’s legal to do so. That would leave only way for them to listen to you: a revolution your wallet. You still have the right to choose where you spend your money. You can also do your own due diligence by reading up on the place before you go there, just so you know what you’ll be dealing with."
"In Malaysia, can someone make you a guarantor...without your consent? The last thing any of us would want right now, is to get a call from the bank saying we owe them money ON BEHALF OF SOMEONE ELSE! The probability of this happening might be low—but there might be a day where an old friend calls you up out of the blue, asking if you could become his guarantor. Now let’s assume you say no, but your friend still secretly goes on to list you as his guarantor at a bank/financial institution. Years later you get a call from a random bank—asking you to pay for a loan your friend had taken...without your consent to be listed as a guarantor. But before we look at what can be done if you’ve been listed as a guarantor without your consent, let’s briefly check out what exactly is a guarantor, based on Malaysian laws. A guarantor is like a defense mechanism...for loans A guarantor is basically someone who is responsible for a borrower’s debts, in the event the borrower can’t pay for it. A guarantor is someone who provides a guarantee for loans (eg: educational loans, hire-purchase and housing loans). Most of the time, guarantors end up becoming the borrower’s family members or friends. The guarantor is pretty much binded by a contract with the financial institution, in case the borrower fails to pay the amount borrowed. However, it’s not that easy to make the guarantor pay if the borrower becomes bankrupt. This is because there are new laws in the Act that protect guarantors. [READ MORE: 5 changes to Malaysia's bankruptcy law that makes it harder to become a bankrupt] It’s okay if you didn’t click on the link above, we’ll briefly explain it to you now anyway. Previously, the bank/financial institution can take action against a ‘social guarantor’ (family and friends who act as guarantors) if the borrower has exhausted all means to pay back his debts. But now, the new law ensures that social guarantors can’t be declared bankrupt along with the borrower who couldn’t afford to pay his debts. Okay now to address the main purpose of this article... You cannot become a guarantor unless you agree to it As we mentioned in the beginning of the article, chances of you becoming a guarantor without your consent is rather thin. This is because, in most circumstances, the guarantor will have to sign a document called a ‘guarantee’ if he wants to take responsibility for the borrower. A guarantee is basically a legal contract that makes the guarantor pay the debts owed by the borrower, if the borrower fails to do so. And the guarantor can be sued as well, if the borrower can’t afford to pay the bank/financial institution back. But there is a chance for a guarantee to be orally agreed on as well. Section 79 of the Contracts Act 1950 states: “A “contract of guarantee” is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the “surety”... A guarantee may be either oral or written.” As much as we know promises aren’t meant to be kept, the law above essentially means that we can become guarantors just based on what we verbally promise someone—be it to the borrower or the financial institution. But if you really don’t recall promising someone to pay for their debts or never signed a guarantee for them, Section 96 of the Act will protect you: “Any guarantee which the creditor has obtained by means of keeping silence as to material circumstance is invalid.” If you didn’t know about the debt or never signed anything for a borrower, you don’t have much to worry about. In other words, you must have freely consented to being a guarantor. Now if you have been a guarantor for someone and you’re worried about whether or not he’s been paying for his loan (and won’t drag you into bankruptcy) you can use MyEG’s services to check your bankruptcy status. They charge RM12 per name per bankruptcy search. Apart from that, you can also make a request for your credit report from Malaysia’s Credit Bureau (commonly referred to as CCRIS). Also, every case involving guarantors may differ from person to person. So if you do get stuck in this sticky situation and need help, it’s best to be in touch with a lawyer as running away from cases involving guarantees isn't exactly that easy."
"Malaysian employees may be penalized for discussing their salaries with colleagues One day during lunch, you and your colleague start chatting about work. You then end up discussing salaries and your colleague points out that she’s earning lesser than you...even though she does the exact same work as you. Later that day, this colleague goes up to HR to ask why there’s a difference in your salaries. But the very next morning, HR calls you up and reprimands you. They tell you that you’re not allowed to discuss your salary with anyone, and that you could be in trouble for this. So this has left you wondering, can your company actually take legal action against you for this? Your salary can be considered confidential Before we continue further, let’s clarify one thing: there is actually no law in Malaysia that prevents employees from discussing their salaries. You could read through every single employment law in Malaysia, and you still would not be able to find it. But this doesn’t mean it’s always safe to talk about your pay. And this boils down to one reason: your company policy. Even if there are no laws, company policy alone may be enough for them to take action against you. When you signed your employment contract, you might have been asked to sign a confidentiality agreement together with it. If you did, you might be familiar with this agreement and what it means. But if you didn’t, here’s a quick explanation: A confidentiality agreement—also known as a Non-Disclosure Agreement (NDA)— is basically a legal contract between you and the company, which will prevent you from sharing any information that is private between you and your company. While it will cover many things such as company projects, plans, clients and so on, it can also cover things such as your salary and benefits. So, if you had signed an NDA and it included your salary, going against it and can land you in trouble. Your company might be able to terminate or even sue you. [READ MORE: What qualifies as ""confidential information"" in Malaysia?] If you’re unsure whether you ever signed something like this, check with your HR. But if you’re very sure that you never signed it, does it mean your company has no right to prevent you from disclosing your salary? Well, it’s still best to… Keep that information private All in all, regardless of whether or not you did sign a confidentiality agreement, the safer option would be not to discuss your pay with anyone…at least not openly. While it might seem harmless, employers don’t encourage it mainly because employees to ask for a raise to match the salaries of their colleagues. This is of course, good for employees as it might promote healthy competition in the workplace, but it can be bad news for employers. And that’s the whole reason for the non-confidentiality agreements, specifically ones which mention your salary. There may be times where you would have no choice but to disclose your current pay, especially if you’re looking for new jobs. But you might not know whether disclosure of pay is only discouraged between employees, or if it extends to people outside the company. So, to avoid getting in trouble with your employer, check your employment contract or NDA and clarify exactly what it covers. Again, these NDAs aren’t fixed and can vary from one company to another. But if you want to find out someone’s salary without going against the NDA, you could check websites like Glassdoor which list the average salary of different professions."
"Malaysiakini is charged for contempt of court...because of their readers' comments? Update 19 Feb 2021: Malaysiakini has been fined RM500,000 for contempt of court, due to comments from readers on their site. If you’ve been on the internet long enough, you’ve probably heard this advice: never read the comments. It’s because the comment section can attract those who speak from a more emotional place (read: angry), and they might write some...not-very-nice comments. You would think that it’s not a big deal – but in Malaysia, it can be. Not to the commenters, but to the site where the comments are written. Back in 2020, Malaysia’s Attorney-General, Tan Sri Idrus Harun, filed an application for contempt of court against Malaysiakini. Not for something Malaysiakini wrote, but for five comments left by readers in their comments section. We’re not sure what the comments were, but you can check the article to try and figure it out. The comments were said to scandalise the court, as it indirectly attacked Chief Justice Tengku Maimun Tuan Mat, exposed the judiciary to public scandal, and would lead to an erosion of public confidence in the judiciary. You might wonder, how are internet comments considered contempt of court, when it’s done outside of a courtroom? Well, as we found out… It’s more than just insulting the court But what exactly is contempt of court? We interviewed a lawyer, Tanusha Sharma, to help explain this. “Contempt of court to put it simply is you being disobedient or disrespectful to the court and its officers.” – Tanusha Sharma, lawyer, in an interview through email And being disrespectful to the court can be interpreted quite widely. “It's what the court deems to be scandalizing the court, but precedence does help.” – Tanusha Contempt of court is based on common law. This just means that there are no specific acts created for contempt of court. Acts of contempt were dealt with based on how previous judges dealt with it before. So if you want to bring someone to court over it, you have to do something called committal proceedings, which is provided in the Rules of Court 2012. And this is seen under Order 52 of the Rules of Court, which covers contempt of court. Basically, you fill up a form and tell the court that someone is in contempt of court. Contempt of court also covers more than just insulting the court. There are actually two forms of contempt: civil contempt and criminal contempt. Civil contempt: you don’t comply with a court order and refuse to obey it. Here’s a simple example: suppose the court tells your neighbour to stop parking his car in front of your house. But a few days after that, he does it again. In this case, you can then take out a committal proceeding. The court will then call your neighbour to explain himself. If they find him guilty, he can be cited for contempt of court. Criminal contempt: this would cover insulting judges or court officers. But if you try to obstruct justice or mislead the court, you can also be held in contempt. But regardless of whether it’s a civil or criminal contempt, the result is criminal. This just means that the court will either fine or imprison you for doing so. If you think you can avoid this by not saying anything in court, think again because... Contempt of court can happen outside of the court Now, based on the phrase itself, contempt of court, it might imply that it’s only for doing or saying something in court. But contempt of court does not have to happen inside the courtroom itself. It could happen anywhere, and as the case shows, in the comments section of an article. According to Tanusha: “As long as you fit the bill for contempt, you can be committed for contempt. So this means that if you got a court order to comply with and you don't, you can be comitted. If you insult the court, you can be committed. And yes, even those outside court can be committed for comments.” – Tanusha It might seem excessive to charge someone for insulting the court. But there’s actually a good reason for that. “The judiciary has always been looked at as an independent body who shall always be fair and deliver justice. The courts play a significant role in protecting the integrity of the judicial process and to ensure a smooth and fair process in a case. Not only that, if people are free to criticize court officers or disobey court orders, this in a way undermines their authority and could cause the public to lose confidence in in the efficiency or fairness of the judiciary. So this gets in the way of delivering justice in a fair manner."" – Tanusha Basically, the court needs to be able to make their decisions without outside pressure. If we’re allowed to insult the court, they will be under negative pressure to perform. This might affect their judgements, which leads to more negative pressure, which will affect their judgements, which leads to...you can see where this is going. A vicious cycle, indeed. But there’s still one thing left unaddressed: why is Malaysiakini charged for something their readers did? Well, that’s because... If it’s on your site, it’s assumed to be yours Think of it like this: imagine your neighbour was robbed, and the cops were going house to house in the neighbourhood to look for the suspect. They check your house, and they find your neighbour’s missing belongings in your house. Unless you can prove you didn’t put it there, you’re assumed to be responsible for the crime, because the evidence was found in your house. Similarly, in Malaysia, if someone writes a comment on your website, you’re considered responsible for it. This is stated in Section 114A of the Evidence Act 1950: 114a. (1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved. Basically, under our laws, if a malicious comment appears on Malaysiakini’s site, they’re assumed to be the one who published, or republished it. So now that you know this, please be civil with your online comments guys."
"Dengan 3 syarat ni, kerajaan Malaysia boleh ambil tanah dan hartanah anda secara sah  [Click here for English version] Perhatian: Undang-undang berbeza terpakai untuk Malaysia Timur kerana ia tertakluk kepada Ordinan Pengambilan Tanah di Sabah dan Bahagian 4, Kanun Tanah Sarawak (bab 81) 1958 di Sarawak. Kalau korang tinggal di satu kampung atau bandar untuk jangka masa yang lama, korang mesti akan perasan dengan perubahan yang berlaku di kawasan korang tu. Kawasan perumahan korang yang dulunya tempat korang membesar, mungkin sekarang ni dah digantikan dengan projek MRT atau sebagainya. Tapi apa yang akan terjadi kepada mereka masih tinggal di kawasan tu, bila projek pembangunan baru dijalankan? Selalunya, pembangunan macam ni kena ada permit tertentu daripada pihak kerajaan, sebelum bangunan atau sesuatu struktur baru dibina di atas tanah berkenaan. Tapi, macam mana pula kalau korang dah beli rumah di satu kawasan dan sekarang ni korang diminta untuk mengosongkan kawasan tu untuk memberi laluan kepada pembangunan baru? Jadinya, apa yang kami akan bincangkan kali ni adalah: Boleh ke kerajaan ambil tanah korang, sedangkan korang masih tinggal di situ? Mereka boleh ambil tanah anda… JIKA untuk tujuan awam Sebenarnya, hanya dalam keadaan tertentu je kerajaan dibolehkan secara sah mengambil tanah korang… walaupun pada asalnya ia milik korang. Berdasarkan Akta Pengambilan Tanah 1960, dah dinyatakan yang kerajaan dibenarkan untuk mengambil alih tanah seseorang untuk tujuan awam (akan diterangkan nanti) dan jika ia memberikan manfaat kepada masyarakat. Seksyen 3, Akta Pengambilan Tanah menyatakan (tiada terjemahan rasmi, diterjemahkan oleh Asklegal): (1) Pihak Berkuasa Negeri boleh memperoleh tanah yang diperlukan – (a) untuk tujuan awam; (b) oleh mana-mana orang atau perbadanan... yang menurut pendapat Pihak Berkuasa Negeri bermanfaat untuk pembangunan ekonomi Malaysia... atau, (c) untuk tujuan perlombongan atau untuk kediaman, pertanian, komersial, perindustrian atau rekreasi atau gabungan apa pun… Dengan kata lain, tanah korang tu boleh diambil jika ia diperlukan untuk pembangunan di bandar atau kawasan korang tu. Jadinya, kalau laluan projek MRT termasuk ke kawasan rumah korang, ada kemungkinan yang syarikat kereta api ataupun kerajaan negeri akan datang dan ketuk pintu rumah korang. Sebenarnya perkara macam ni dah banyak kali berlaku, contohnya seperti projek laluan MRT Sungai Buloh – Kajang. Untuk projek ni, MRT Corp dah dapatkan hampir 600 lot tanah persendirian melalui Akta Pengambilan Tanah. Walaupun ada protes dari sebahagian pemilik tanah, rancangan tu tetap diteruskan dan dapat kelulusan daripada kerajaan. Semasa perbincangan dengan pemilik tanah, pengarah projek ada kata yang pengambilan tanah tu memang tidak dapat dielakkan – kerana ia adalah sebahagian daripada rancangan pembaharuan bandar kerajaan. Tapi dalam masa sama, korang mesti ada terfikir macam mana perkara ni boleh jadi sah, sedangkan hak pemilikan tanah dijamin di bawah Perkara 13, Perlembagaan Persekutuan. Sebenarnya, keadaan berbeza dalam hal macam ni, sebabnya hak Perlembagaan korang masih lagi tertakluk kepada pemerintah dan ia termasuklah mengambil tanah korang – dengan syarat korang mendapat ganti rugi (kita akan bincang lebih terperinci nanti). Walaupun kita dengar macam mudah, ambil tanah ni tak la semudah yang disangka. Ini kerana, kerajaan negeri hanya akan buat macam tu selepas betul-betul mempertimbangkannya. Malah, dalam masa sama – korang juga masih ada peluang untuk menghalangnya daripada berlaku. [BACA LAGI: Can the Malaysian government take your property if you die without a will?] Anda boleh halang kerajaan buat macam tu dengan syarat tertentu Jadinya di sini, kalau kerajaan perlukan tanah korang untuk bina pejabat pos yang akan dimanfaat oleh masyarakat sekeliling – mereka boleh gunakan undang-undang yang tercatat dalam akta dan ada hak untuk buat macam tu. Tapi untuk halang pihak berkuasa dari buat macam tu, korang mesti buktikan dua perkara ni iaitu: Tanah tu tak akan digunakan untuk tujuan awam Kegunaan tanah tu tak dilakukan dengan niat yang baik Tentang terma ‘tujuan awam’ pula, ia boleh didefinisikan dalam satu kes – S Kulasingam & Anor v Commissioner of Lands, Federal Territory & Ors, yang dinyatakan: ""Ungkapan “tujuan awam” tidak dapat memberikan definisi yang tepat ... ia masih lebih baik untuk menggunakan pandangan akal yang sihat, iaitu untuk melihat apakah tujuan tersebut untuk kepentingan awam masyarakat. Maka pada dasarnya, ia bermaksud yang kalau tanah tu akan dimanfaatkan untuk masyarakat awam secara menyeluruh, korang mungkin tak ada pilihan, selain melepaskan tanah korang yang nak diambil tu. Tentang niat baik pula, ia secara mudahnya bermaksud niat pihak berkuasa, dan tanah korang tu tak akan digunakan untuk tujuan selain yang ada dalam Akta. Jadinya, kalau korang tinggal di hartanah yang kerajaan nak, tapi korang tak nak melepaskannya – korang kena buktikan adanya dua perkara yang disebut di atas tu. Tapi korang kena maklum juga yang perkara ni kena dibuat dalam tempoh 3 bulan dari hari korang terima Notis Borang E, yang menyatakan kerajaan berhasrat mengambil tanah korang. Dalam masa sama, tak semua benda percuma di dunia ni. Kerana itulah kalau kerajaan nak ambil tanah korang, mereka kena bayar korang. Tapi, boleh ke korang tetapkan harga? Kalau mereka ambil tanah anda, mereka kena bayar anda Jadinya, kalau korang gagal buktikan sebab kenapa kerajaan tak boleh ambil tanah korang, korang tak ada pilihan lain selain melepaskannya. Tapi dengan syarat korang akan diberikan ganti rugi. Seperti mana yang kami kata tentang Perkara 13, Perlembagaan Persekutuan tadi – ia sebenarnya menjadi penyelamat bila tanah korang diambil. Perlembagaan secara asasnya menyatakan – kerajaan harus memberikan korang jumlah wang yang berbaloi dan cukup sebagai pertukaran tanah yang diambil. Tapi harga tanah tu akan ditentukan oleh Pentadbir Tanah melalui siasatan yang dilakukan terhadap tanah korang. Lepas je siasatan tu tamat dan nilainya dikira –laporan penilaian akan disediakan. Pentadbir Tanah nanti akan berikan ‘penghargaan pampasan’ untuk tanah korang tu. Tapi, kalau korang keberatan dengan jumlah ganti rugi tu, korang boleh isi Borang N dalam tempoh masa 6 minggu. Mahkamah nanti akan terlibat untuk menyelesaikan isu ni. Untuk kes melibatkan hartanah dan kerajaan pula, cara terbaiknya adalah korang dapatkan nasihat undang-undang sebelum isi apa-apa borang atau notis. Ini kerana, setiap kes macam ni bersifat subjektif dan kemungkinannya memerlukan bantuan tambahan – sebabnya hartanah boleh berbeza dari segi hak milik, nilai pasaran dan jenis. Jadi, cara terbaiknya adalah berhubung dulu dengan peguam untuk dibantu apa yang patut!"
"There was no control on maintenance fee rates at Msian condos, until this 2019 court case If you’re ballin’ and can afford a condo unit—or you’ve been a tenant at more than one condo—you might have noticed how condos vary from each other in terms of facilities...and obviously price. For instance, the highest floor of your condo might have penthouse units and on the ground floor, there might be grocery shops and laundry services available. Now if you own a condo unit, you’ll know that you’d have to pay for additional things like sinking funds and maintenance fee. In this article, we’ll be looking at a Malaysian court case that brought significant changes on how much you’re going to be paying for your maintenance fee...because the owner here filed a case against the Joint Management Body of his condo that charged him more. But before we go into the details in this article, let’s just briefly look at who is responsible for maintaining condos and charging you exorbitant amounts for the maintanence. Condo managements are in charge...to a certain extent If you live in an apartment, condo, flat, SOHO, SOVO, or gated community, they all fall under the category of a ‘strata property’. Under the Strata Management Act 2013 (""SMA 2013""), there are three types of management bodies that are responsible for maintaining your condo. The first kind of management body is the Joint Management Body (JMB). The JMB is a collaboration between the developer and the owners of the strata property. JMBs have to ensure that the apartment (or land if it is gated and guarded) and its common property is properly managed by keeping it in good repair. The JMB is also supposed to determine how much the maintenance charges and sinking funds (which is discussed below) would be and then collect it from you and the other owners. These duties are contained in section 21 of the SMA 2013. The second type is the Management Corporation (MC). The MC has similar duties and powers but is only formed once you have received the title to your property. The management corporation is comprised only of owners to the property, without the part of the developer anymore. The third is known as the sub-MC. The sub-MC comes into play when there is a need for separate management. An example of when there is separate management is when there are both commercial and residential properties or when there are limited common properties. The sub-MC, subject to any restrictions from the MC, has the same duties and powers as the MC. [READ MORE: Can the condo management in Malaysia really enter my unit and take my property?] Section 21 (1) of the Strata Management Act 2013 lists all the duties of the a condo management. Some of them are: “(a) to properly maintain and manage the building or land intended for subdivision into parcels and the common property, and keep it in a state of good and serviceable repair (b) to determine and impose the Charges to be deposited into the maintenance account for the purpose of proper maintenance and management of the buildings or land intended for subdivision into parcels and the common property.” So based on the law, your condo management can legally charge you maintenance fee. You also have the legal duty to pay up as stated under Section 25(1) of the SMA 2013. And if you fail to pay, you can be sued for it. Now imagine this, you own a shoplot and a residential unit at a strata property (we can only afford to be this rich in AskLegal articles). During the MCO, your shop had to be closed...which led to severe business losses. However, the JMB still required you to pay maintenance for both your properties—where the maintenance rate for your shoplot was much higher than rate charged for your home. In reality—or rather in this court case, the person who sued the JMB only owned a residential unit in the property. Here’s basically what happened… It all started with a meeting In Muhamad Nazri Bin Muhamad vs JMB Menara Rajawali & Anor, Nazri, the owner of a residential unit sued the JMB at the High Court—for unlawfully charging different maintenance rates on retail shops and residential units in the condo. It all started when the JMB hosted the first Annual General Meeting (AGM) on the 25th June 2016, where the members agreed to allow the JMB to fix maintenance rates at: RM3.26/share unit for residential and retail shop units; and RM1.68/share unit for car park units (which was owned by another person) But a little known fact is that, the JMB assigned this duty to the MC, where they imposed the share units to RM2.80 and RM1.68 respectively. The plaintiff (person who sued) claimed that the different rates on maintenance was unlawful and discriminatory, as the JMB and MC charged residential and retail shops differently than for the car park units. However, the High Court disagreed with the plaintiff and stated that the JMB was not going against the law, and has the right to fix different rates, as long as it was not going against the SMA 2013—which allows the JMB to fix different rates which are approved in the AGM. Unhappy with this decision, the plaintiff took the case to a court higher than the High Court... [READ MORE: 5 things Malaysian condo owners can sue their management for] The Court of Appeal agreed with the plaintiff The appeal was in favour of Nazri, as the Court of Appeal overturned the High Court’s decision—by stating that the JMB/MC had no power to set different rates for maintenance charges when it came to different types of unit. This is because, the maintenance fee for each unit is calculated based on a formula which you can find under the First Schedule of the Strata Management Act. And this schedule has already provided the calculation as to how much the units will have to pay. So when the JMC and MC set a much lower rate, the owner of the car park lots enjoyed a bigger discount on maintenance charges. The Court also went on to say that the different rates on maintenance charges for different types of units, did not follow what was stated the law under Section 25 of the SMA 2013: “The amount of the charges to be paid...shall be determined by the Joint Management Body...in proportion to the allocated share units of each parcel...” As we mentioned earlier, the JMB and the MC had both given different rates on the maintenance charges—which raised the question on who gets to determine the rates in the first place. The Court stated that the JMB could not give the authority to the MC (which they did) and this means they’ve acted beyond their powers stated in the Act. So if you ever encounter a case as such, where you think you’re being charged more than what you should be paying for... [READ MORE: 4 things your condo management can sue YOU for in Malaysia] Take your case to the Strata Tribunal first The Strata Management Tribunal listens to any issues listed in the Fourth Schedule of the SMA 2013 provided your claim does not exceed RM250,000. You can bring a complaint to the Tribunal if the management body fails to carry out its duties or abuses its powers. You can also approach the Tribunal to make an order for the management body to release certain information or documents to you or to request for an order to pursue an insurance claim. However, when you bring a complaint to the Tribunal, it is important to note that you would be representing yourself as no lawyers are allowed in Tribunal proceedings. The Tribunal will only allow a lawyer to be present if you can prove that you would suffer financial hardships from the lack of a lawyer or if there are complex legal issues to discuss. But take note: If you are renting the property, you might not be able to bring an action to the Tribunal as tenants are not listed in section 107 of the Act. However, you may work around this if you can prove to the Tribunal that you are have an interest in the property, and the Tribunal would then grant you permission to file a claim with them. [READ MORE: 5 steps to take when you want to sue your condo developer in Malaysia]"
"Malaysian developers can be allowed to complete your home late...for 3 reasons As we all know, in the 3 months of the MCO, most things came to a standstill. Many businesses had to shut down during that time, and this included most of the construction sector. As a result, property developers had to halt building and this would have affected the delivery time for those properties. If you didn’t already know, under the law, developers need to deliver property to home buyers by a certain time. According to the Housing Development (Control and Licensing) Act 1966 (HDA 1966), developers have: 24 months for landed properties 36 months for strata properties such as condos, apartments, any other high rise property and gated communities In normal circumstances, developers who fail to follow this timeline can be penalized, and we already have an article on this here. But, in special circumstances such as the MCO, the law may actually allow developers some leeway. So, here’s how your developer may get more time to complete your home. 1. The govt gives them an extension When you decide to buy a house, you would sign a Sale and Purchase Agreement (S&P), which is basically your housing contract. This S&P will cover the rights and obligations of both you and your developer. But besides that, it would also contain a clause known as an “Extension of Time” clause. This clause basically grants the developer some extra time to complete the building of your home in addition to the 24 or 36 months. There’s no fixed format to how this clause looks, but in essence, it would state that the construction can’t be completed on time due to an unforeseen circumstance. Now, while this may seem like an easy way for developers to get extra time, in reality, it isn’t. The case of Ang Ming Lee v Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan, known as a landmark case, sheds some light on this. It’s pretty lengthy, but we’ll break it down for you: Some developers could not complete a housing on time. They got an extension of time granted by the Controller of Housing from the Housing Ministry, better known as the Kementerian Perumahan dan Kerajaan Tempatan. The Controller has the right to approve or reject licenses, and on the whole ensure that both buyers and developers follow housing laws The buyers felt that the extension of time clause was abused and they took the case to the High Court. The court said that the Controller did not have the right to give the developers an extension of time The developers then took the case to the Court of Appeal. This court reversed the High Court’s decision and said that the Controller did have the right to issue to extension The buyers appealed this decision to the final appeal court, the Federal Court. Here, the court reversed the decision again and once and for all said that the Controller of Housing CANNOT issue an extension of time to developers. But here’s the thing: just because the court decided this way, it doesn’t mean developers can’t get an extension of time at all. While they can’t apply for extensions to the Controller, they can still try and directly apply to the Housing Ministry. However, there’s no guarantee that it may be approved. The other issue is that, for an extension to be available, this clause must be stated in your Sale and Purchase agreement. Developers cannot rely on this clause if it doesn’t even exist in your S&P. Now, if an extension from the government doesn’t work, there are still other ways they can get more time. 2. You give them an extension If the government denies them help, the other way would be to enter an agreement with you, the buyer. In the case of Oxbridge Height Sdn Bhd vs Abdul Razak Mohd Yusof [2015], the Court of Appeal allowed the developers and home buyers to agree on a new completion date. The developer was having financial difficulties and the area in which the homes were being built were often hit by floods. Both the developer and buyers were able to come to a compromise seeing that the issue was beyond their control. For your developer to do this, they will need to get in touch with the Housing Ministry and inform the Controller of Housing of the decision. You will then need to sign a Settlement Agreement with your developer. Bear in the mind that by signing this, you would be forfeiting your rights to getting any money from your developer for late delivery of your home. In essence, you would be consenting to your home being delivered later than the date in your Sale and Purchase Agreement. Your developer will now have to strictly follow this new deadline. 3. A new law to “freeze” contracts You might have heard of the term “force majeure” being used a lot lately, especially in the last 3 months. Force majeure is a part of a contract that allows parties to get out of it because it can no longer be performed due to unforeseen circumstances. We’ve written a few articles on how force majeure can be applied to different types of contracts such as employment and business contracts. However, in the case of S.E.A. Housing Corp Sdn Bhd v. Lee Poh Choo [1982], the Federal Court said that force majeure cannot work for Sales and Purchase Agreements. This means that developers can’t rely on force majeure even during unforeseen circumstances such as the MCO. But there may be another way for developers to get an extension—the Covid-19 Temporary Relief Bill. This has not come into effect yet, but it’s already being discussed. In fact, the government has asked for suggestions on what to include in the bill. Basically, the Bill—which if approved in Parliament, will become an Act—will give parties relief from their contract for a period of time. Parties can be excused from not keeping up to their obligations in the contract during that period, and they cannot be sued for that. If your developer can use this Act to get more time, you will not be able to sue them for a delay in delivering your home. [READ MORE: This new law will protect SMEs from going bankrupt. How does it work?] Regardless of what method your developer may use to get a time extension, make sure to know your rights as a buyer and be in the loop so that these exemptions are not misused."
"This new law will protect SMEs from going bankrupt. How does it work? [Update: The Covid-19 (Temporary Measures) bill has been made law on Friday, 23 October 2020. The final section has been amended to include the new law] During the MCO, it’s not surprising to hear about businesses closing down. Just like the Spanish inquisition, no one expected the Covid-19 pandemic to hit us that hard. There have been attempts to soften the economic blow, such as a government subsidy for employee wages. But companies which can’t operate online, especially SMEs, might face difficulties after not operating for a few months. They might be unable to pay back loans, or even completing work they’re hired to do pre-MCO. This can lead to creditors or clients trying to sue them for the money, potentially forcing the company to liquidate and sell their assets. But Malaysian companies might get some temporary relief from these difficulties. During the announcement of PENJANA, Prime Minister Muhyiddin Yassin mentioned that they were in the midst of drafting a new bill: the Covid-19 (Temporary Measures) bill. This bill potentially allows companies to avoid lawsuits, and from being forced to shut down, at least for awhile. It works by pausing your contract According to Muhyiddin, the bill will ‘provide temporary relief for written obligations for a certain period.’ In case you don’t know, written obligations just means any contract that is written down. And contracts can cover a pretty big area. The important thing in a contract is someone offers a deal, and the other party agrees to it. For example, a loan is a contract. A bank will lend you money, but in exchange you’ll pay them back with interest over a certain time period. Or building someone’s house. The contractor promises to build the house, in exchange for money. But when something unexpected like the pandemic happens, you might not be able to fulfil your end of the bargain. You probably couldn’t pay the bank back, or you couldn’t finish building the house in time. Understandably, the other party might start a lawsuit, most likely to get you to pay up, because you couldn’t do what you promised. So this new bill works by pausing your contract for a length of time, usually around six months. During that time, the other party can’t sue you, seize your property, or force you to liquidate in order to pay them back. So how do we know how it works, if it’s still being drafted? The answer lies by looking at how other countries have done it, as some of them have created a nearly similar law to deal with this. Most countries have introduced a similar law We can start with one of our closest neighbour, Singapore. Singapore gazetted their Covid-19 (Temporary Measures) Act 2020 on April 9, just 2 days after it was passed in their parliament. As the name implies, this Act is meant to protect businesses affected by the pandemic. Under this law, companies can seek temporary relief from contractual obligations for six months. To do so, they can sign up online to give a relief notice to other party. When the other party gets it, they are not allowed to seek legal action against the company. Not only that, the other party would also be unable to seize the company’s property, or force them to close down and liquidate. If they do attempt to sue the company in court, their application will be rejected. They will also be guilty of an offence for going against the Act. So for six months, the company will be safe from lawsuits, and threats of closing down. But this is not a free pass to escape your contract. You must show that your business was affected by the Covid-19, and that you couldn’t fulfil your contractual obligations because of that. If both sides couldn’t reach an agreement after the notice, either party can apply for an assessor. The assessor will then determine if the situation is covered by the temporary relief, and will then grant or deny the relief where necessary. Other countries such as UK and New Zealand have also introduced similar laws to provide temporary relief. The wordings in their law might be different, such as providing a debt moratorium or a safe harbour for companies. But their goal is similar: to help companies recover from the Covid-19 pandemic by pausing contractual obligations, and protecting them from lawsuits. We might have to wait for it The law is now in place Update: The new Act has been gazetted (made law) on 23 October, 2020. It is called the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Act 2020. The Act will be enforced for two years from the date it was gazetted, and will help those affected by the Covid-19 pandemic. Here are a few highlights from the new Act: You can settle out of court: Contractual disputes caused by the pandemic can now be settled through the Covid-19 Mediation Centre. This mediation service is available to everyone with disputes below RM300,000. Those in the B40 and M40, as well as small and micro enterprises, will have their mediation costs covered by the government. You can email pertanyaan@pmc19.gov.my for more information. [READ MORE: 5 ways to ""sue"" someone in Malaysia without going to court ] No late payment charges: If you’ve purchased a new property from a developer, but were unable to pay the instalments between 18 March-31 August, the developer cannot impose late payment charges on you for doing so. Property developers get a time extension: The date between 18 March-31 August won’t be calculated into the delivery time. This basically gives developers nearly six months more to complete the housing project. The date will also be excluded if homeowners seek liquidated damages for failing to complete their house. Landlords can’t seize your property: Landlords cannot take out a warrant of distress against tenants who were unable to pay rent between 18-March-31 August. This means that the landlord can’t get a court order to sell the tenant’s belongings, in order to claim their unpaid rent. Suppliers can’t repossess goods: Owners of goods can’t repossess their goods under a hire-purchase agreement, if there were any late payments between 1 April-30 Sept. New homeowners have a longer warranty: For houses purchased before the MCO, the new house ‘warranty’, or the 24-month defect liability period, is now extended. The time between 18 March-31 August can’t be calculated by developers into the liability period. Which means if your warranty included that time period, you now have more time to claim for any defects to your new house. [READ MORE: What can you do if your wedding was canceled due to the Movement Order in Malaysia? ]"
"5 important tax exemptions you can get via the PENJANA plan This recovery phase we’re in isn’t just for COVID-19, but also the Malaysian economy. Many Malaysians lost their jobs during this period as companies are finding it hard to sustain employees. We’ve written several articles which can be useful for those of you who did, which you can check out below: [READ MORE: This is the government's plan to keep Malaysian employees from losing their jobs] [READ MORE: M'sian workers who are fired can now claim unemployment benefits. Here’s how] A few days ago, the Prime Minister announced the Pelan Jana Semula Ekonomi Negara, or better known as PENJANA, which aims to be an economic recovery plan for the next few months. This entire plan will cost RM35 billion, and covers a whole lot of things such as tax exemptions, provide financial aid for companies, employees and job seekers. If you’re concerned about employment matters, click here to read about how you can get help. But for the purposes of this article, we’ll be looking at some of the tax exemptions and reliefs announced—which can somewhat help ease the financial burdens most of us are facing. Now, most Malaysians might be familiar with tax reliefs—which you get when you file as income that won’t be taxed because you spent your money on certain types of expenses. But there are also “tax exemptions” in the law—which are basically types of income that you don’t pay tax for—click here to find out more. Certain tax exemptions and reliefs are given to individuals and companies under this Short-Term Economic Recovery Plan, during the recovery phase. So we chose to feature 5 tax exemptions in this article, which will probably benefit you one way or another: 1. Tax reliefs are given to property owners If you own property in Malaysia, we have good news for you. The PENJANA plan provides tax deductions to property owners (landlords) who reduce the rental amount to at least 30%. This was previously announced in the Economic Stimulus Package, but the deductions have been extended up to 30th September 2020. Now if you’ve been an avid AskLegal reader, you’d know that we recently wrote an article about how landlords are actually taxed for renting out their property. This is stated under Section 4 of the Income Tax Act 1967: “Subject to this Act, the income upon which tax is chargeable under this Act is income in respect of—(d) rents, royalties or premiums;” So if you’re renting out your property and have not been declaring it when you file your taxes, you might want to read the link below: [READ MORE: M'sian landlords may need to declare tax on rental income. But here's how it works] If you were thinking of buying your first home this year but COVID-19 happened, there might be some hope that you can still own a property. The PENJANA plan plans to reintroduce the Home Ownership Campaign. The campaign essentially aims to help kick-start the property market post-COVID-19. The plan offers stamp duty exemptions for home owners. Stamp duty is basically a fee for legal documents, like the instrument of transfer (transfer of strata title to your name) and loan agreement when you buy a house. In other words, it is what you have to pay when you stamp your housing documents. So the stamp duty exemptions for the instrument of transfer is given to the first RM1 million residential property value. As for legal documents such as the loan agreement, there’s a 100% exemption if the property is priced between RM300,000 to RM2.5 million. But here’s something to note: The sale and purchase agreement must be drafted between 1st June to 31st May 2021. There is also a 10% discount that can be offered by property developers that are part of this campaign. 2. Local cars are sold with 100% tax exemption So here’s an opportunity the automotive industry will want to seize before it drifts away. The government has proposed to exempt tax for both local and imported cars. Now if you’re wondering who the sales tax exemption will benefit, it’s actually meant for manufacturers who pay a single-stage tax on goods manufactured locally or abroad. But this will also benefit buyers, as the selling price of vehicles will now differ. Full sales tax exemptions are given for locally assembled cars, while imported cars will get a 50% sales tax exemption. This tax exemption is effective from 15th June to 31st December this year. BONUS POINT: If you’re a serial online shopper...there’s good news for you, but not your wallet. The PENJANA plan will be introducing “Shop Malaysia Online”, which is a government initiative with several private companies. The initiative will be carried out by providing discounts and promo codes to encourage Malaysians to shop online. 3. Tourism sectors will not be taxed While most sectors have been hit pretty badly by this pandemic, the tourism sector suffered some pretty bad blows as well. In order to get them sailing through rough seas, the PENJANA plan aims to bring the tourism sector to paradise. Several tax incentives have been proposed: Tax extensions until 31st December has been given to the tourism industry to pay income tax installments. This includes tour agencies, hotels and airlines. Domestic travelers will be relieved from paying income tax up to RM1,000 if they travel between 1st March to 31st December 2021. The expenses they are relieved from include accommodation with registered under MOTAC and entrance fee to tourist attractions. 100% tourism tax exemption will be given starting 1st July 2020 to 30 June 2021. Eg: You’ll be exempted from paying tax for your accomodation. If you’ve been waiting to go on that getaway to Pangkor, you might finally be able to using these tax incentives. So if you travel, you can keep the receipts and that amount will be relieved from your tax amount. Also just a reminder: Practice social distancing while you’re at it. 4. New businesses will get tax exemptions Lately, most of our articles on companies and businesses have been pretty bleak due to COVID-19. But we actually have some positivi-tea to spill now, thanks to PENJANA. *bad joke, plis forgive* To encourage more new businesses post-COVID-19, the government has come up with several tax incentives to help new entrepreneurs. An income tax rebate up to RM20,000/per for the first 3 tax assessment years will be given to SMEs. There’s even a longer period which trails all the way to 31st December next year, for new businesses to register officially and start operating. [READ MORE: Which Malaysian business type should you choose for your company?] Apart from that, there are also stamp duty exemptions given to SMEs, specifically on Mergers and Acquisition documents—that are completed between 1st July up to 30th June 2021. Now for existing businesses, there are tax deductions given up to RM300,000 if the company proceeds with renovation works and refurbishment. The expenses for the renovation work must be incurred between 1st March up to 31st December 2021. 5. Tax relief is given for COVID-19 related purchases With the new rules and SOPs established for companies to follow, the PENJANA plan allows for tax deductions for companies that incur costs to buy personal protective equipments (PPE) for their employees, thermal scanners and for conducting COVID-19 tests. But if your company issued a notice for you to work from home (WFH), your company is actually entitled to several benefits/incentives for doing so. Tax deductions have been introduced for employers that carry out flexible working arrangements for employees. The tax deduction will be effective from 1st July 2020. If your company has also been generous enough to provide you a laptop, handphone or tablet, there’s an individual income tax exemption up to RM5,000 for you. However, the relief will only be effective starting 1st July 2020."
"3 perkara yang pekerja WAJIB dapat kalau syarikat mereka gulung tikar  [Click here for English version] Sepanjang tempoh Perintah Kawalan Pergerakan (PKP) dilaksanakan, kita dah nampak ramai pihak yang terjejas akibat kehilangan sumber pendapatan. Disebabkan hal itu, banyak syarikat yang mula menjalankan beberapa langkah untuk kekal bertahan seperti memotong gaji pekerja dan termasuklah memberhentikan sebahagian kakitangan. Akan tetapi, ada juga syarikat yang tak dapat lagi bertahan dan tak ada pilihan lain selain dari gulung tikar. Banyak syarikat yang berdepan dengan keadaan sebegini dah dilaporkan di media. Bila sesebuah syarikat di Malaysia tu nak gulung tikar, mereka boleh buatnya dengan dua cara iaitu: Penggulungan syarikat Membatalkan nama syarikat dari pendaftaran Suruhanjaya Syarikat Malaysia (SSM) Tapi disebabkan undang-undang menutup syarikat ni rumit, agak mustahil untuk segalanya dibincangkan dalam satu artikel. Jadinya, kami hanya akan fokus pada penggulungan syarikat, kaedah yang dipilih apabila syarikat ada aset atas nama mereka. Dalam masa sama, kami juga tak akan pergi terlalu terperinci tentang proses penggulungan ni. Sebaliknya, kami hanya akan beri fokus terhadap pekerja dalam proses tu. Lebih spesifik lagi, kami akan tengok apa yang syarikat kena berikan kepada pekerja apabila mereka buat keputusan untuk gulung tikar. 1. Gaji pekerja perlu dibayar sebelum hutang-hutang lain Jika penggulungan sesebuah syarikat tu selesai mengikut prosedur yang ditetapkan, aset syarikat itu akan dijual dan dilikuidasi (bertukar menjadi tunai). Wang ini kemudiannya akan digunakan untuk membayar sesiapa sahaja yang syarikat berhutang kepadanya, terutamanya para pemegang saham dan pemiutang. Tapi dalam masa sama, wang ini juga kena digunakan untuk membayar gaji para perkerja syarikat yang masih belum dibayar. Sebelum ni, tak ada urutan tentang siapa yang sepatutnya dapat duit dulu. Hal ni membuatkan para pekerja dalam keadaan merugikan, lebih-lebih lagi kalau pemegang saham nak duit mereka dulu. Bagaimanapun, keadaan mula berubah bila undang-undang penggulungan syarikat digubal. Sekarang ni dah ada senarai siapa yang sepatutnya dibayar terlebih dulu selepas syarikat dapat duit hasil dari penjualan aset. Syarikat perlu melunaskan hutang yang bercagar, diikuti dengan hutang tak bercagar. Contoh hutang bercagar ni termasuklah hutang-hutang bank dan aset-aset lain yang dah dipinjamkan kepada syarikat. Sejurus sahaja hutang ni dibayar, hutang tak bercagar pula menjadi keutamaan. Berdasarkan Seksyen 527, Akta Syarikat dah dinyatakan tentang ‘Keutaamaan’ iaitu: 1) Tertakluk kepada Akta ini, dalam sesuatu penggulungan hendaklah dibayar mengikut keutamaan berbanding dengan semua hutang tidak bercagar lain – (b) yang kedua, semua upah atau gaji, sama ada diperoleh sepenuhnya atau sebahagiannya dengan cara komisyen… tidak melebihi lima belas ribu ringgit atau apa-apa amaun lain… dalam tempoh empat bulan sebelum permulaan penggulungan; (c) yang ketiga, semua amaun yang kena dibayar berkenaan dengan pampasan pekerja di bawah mana-mana undang-undang bertulis yang berhubungan dengan pampasan pekerja yang terakru sebelum permulaan penggulungan Jadi, siapa yang mula-mula kena dibayar dulu? Jawapannya, orang itu adalah pihak yang mengawasi keseluruhan proses penggulungan syarikat iaitu pihak pelikuidasi syarikat dan juruaudit. Lepas mereka ni dibayar, para pekerja pula menjadi pihak yang patut dibayar seterusnya. 2. PERKESO, KWSP dan cuti yang korang tak gunakan pun perlu dibayar Sebagai pekerja di Malaysia, kita semua tahu yang kita tak dapat setiap sen gaji yang kita terima tu. Sebaliknya, setiap bulan kita kena buat caruman untuk PERKESO, KWSP dan EIS yang dipotong dari gaji bulanan kita. Walaupun potongan ni dibayar sendiri melalui gaji korang dan dimasukkan dalam simpanan dana untuk kegunaan kemudian hari, majikan korang pun kena buat caruman dalam dana sama. Menariknya, undang-undang tak membenarkan majikan menghentikan caruman ini, walaupun ketika berdepan dengan kesulitan kewangan. Seksyen 527, Akta Syarikat menyatakan secara jelas bahawa: (e) yang kelima, semua amaun yang kena dibayar berkenaan dengan sumbangan yang kena dibayar sepanjang dua belas bulan yang berikut sebelum permulaan penggulungan oleh syarikat sebagai majikan mana-mana orang di bawah mana-mana undang-undang bertulis yang berhubungan dengan caruman keselamatan sosial pekerja dan persaraan atau kumpulan wang simpanan… Tapi bukan dana persaraan je yang majikan kena bayar, kalau korang ni memang jenis pekerja yang berdedikasi dan masih ada banyak cuti yang belum digunakan – ia juga perlu dibayar oleh majikan. Hal ni turut dinyatakan dalam Seksyen 527: (d) yang keempat, semua saraan yang kena dibayar kepada mana-mana pekerja berkenaan dengan cuti rehat, atau dalam hal kematiannya kepada mana-mana orang lain yang berhak kepadanya, yang terakru berkenaan dengan apa-apa tempoh sebelum permulaan penggulungan; 3. Pekerja yang berpendapatan kurang RM2,000 akan diberikan faedah lain Kalau korang dapat gaji lebih dari RM2,000, nampaknya seksyen ini tak terpakai kepada korang. Bagaimanapun, kepada sesiapa yang termasuk dalam kategori ni, Akta Kerja 1955 ada peruntukan yang boleh membantu korang. Di bawah akta ini, ada satu peraturan yang dikenali sebagai Peraturan Pekerjaan (Faedah-Faedah Penamatan dan Pemberhentian) 1980. Selain dari berkenaan dengan hal berkaitan pemberhentian pekerja, Seksyen 6 peraturan ini juga ada menyatakan tentang berapa jumlah yang pekerja perlu dibayar jika diberhentikan kerja. Akan tetapi, amaun tersebut berbeza kerana bergantung pada berapa tahun pekerja tu dah berkhidmat untuk syarikat. Walaupun begitu, peraturan ni tak terpakai kalau korang sendiri yang meletakkan jawatan, atau korang diberhentikan kerja kerana persaraan atau salah laku. Namun, dalam kes korang terpaksa diberhentikan kerana syarikat gulung tikar, peraturan ini terpakai kepada korang. Kalau korang tak tertakluk di bawah Akta Kerja, nampaknya undang-undang tak dapat sangat membantu korang. Tapi, korang juga disarankan periksa kontrak pekerjaan untuk tengok sama ada terdapat terma-terma tertentu yang dinyatakan sekiranya korang diberhentikan kerja. Undang-undang dah berubah untuk menyelamatkan syarikat dari penggulungan Sebelum ini, untuk mendapatkan notis penggulungan dari mahkamah, syarikat kena ada hutang sebanyak RM10,000 dan hanya ada 21 hari untuk bertindak balas dengan tuntutan penggulungan. Tapi, baru-baru ini undang-undang tersebut dah diubah untuk membantu banyak syarikat dari gulung tikar. Sekarang ni, syarikat kena ada hutang sebanyak RM50,000 dan akan diberikan masa selama 6 bulan, berbanding 3 minggu sebelumnya. Ini bermakna, kurang pemiutang (syarikat berhutang dengannya) yang boleh memulakan tuntutan penggulungan terhadap syarikat. [BACA LAGI: 5 regulations Malaysian companies DON'T have to follow during the MCO] Tapi, kalau syarikat memang dah tak boleh dielakkan dari ditutup, sebaiknya korang ambil tahu tentang hak-hak yang korang wajib dapat. Sekurangnya, korang boleh bersedia menghadapi masa-masa yang sukar nanti."
"This is the government's plan to keep Malaysian employees from losing their jobs When the MCO first started in March 2020, the Prime Minister announced an economic stimulus package worth RM250 billion known as PRIHATIN. This package was introduced to help many Malaysians whose finances had been affected due to the MCO. Under it, the government subsidized Malaysians’s salaries and gave individual allowances, among other things. 3 months later, Malaysia is now looking to further strengthen its economy after it being mostly closed during the MCO. So, on 5th June 2020, the Prime Minister announced something known as the Pelan Jana Semula Ekonomi Negara (Penjana), or an economic recovery plan. This entire plan will cost RM35 billion, and it covers a whole lot of things, from tax exemptions, to financial aid for companies, employees and job seekers. It’s an extensive list, so in this article we’re only going to focus on the reliefs that will be given to Malaysian employees as well as those who have lost their jobs. The wage subsidy has been extended Like we mentioned earlier, one of the initiatives brought about by PRIHATIN was the wage subsidy. This wage subsidy basically meant that the government would pay for a portion of each worker’s salary, so that companies would not need to retrench their staff. Initially, this wage subsidy of RM600 per employee only applied to companies that had made a loss of 50% or more since January 2020. Companies could only receive this wage subsidy for employees that earned lesser than RM4,000. Then in early April 2020, PRIHATIN PLUS was introduced...and it came with quite a bit of changes.The wage subsidy amount was determined by the size of the company: More than 200 employees—RM600 monthly per employee (companies could not claim for more than 200 employees) 75-200 employees—RM800 monthly per employee Less than 75 employees—RM1,200 monthly per employee This wage subsidy was supposed to run from April to June 2020. However, in his speech on 5th June, the Prime Minister said that 2.2 million jobs were saved through this subsidy. So, this initiative will be continued for another 3 months (July to September 2020). But unlike the detailed breakdown above, the wage subsidy is now capped at RM600 per employee for a maximum of 200 employees per company. This subsidy will now be extended to new sectors: tourism business that COULD NOT operate during the conditional MCO, where staff were made to take unpaid leave. Once the business receives the subsidy, they have to directly pay it to the staff as compensation for the unpaid leave. Note: An important rule for this wage subsidy is that companies CANNOT retrench staff whose salaries are being subsidized for the period of the subsidy, and for 3 months after that. [READ MORE: Msian govt is subsidising workers salaries. Here’s how employers can sign up for it] Job seekers will also receive benefits With the wage subsidy above, more companies may be able to retain their staff. But there are still many who are finding it hard to secure jobs at this point. So, under this economic recovery plan, RM2 billion will be allocated for job seekers and youth to learn more skills and gain more experience in certain fields. For youths, there will be programmes to train them with skills needed for various fields, and then place them in jobs. These programmes will be conducted in selected institutions. For now, we don’t have a list of the institutions. For job seekers who already have some experience, there will be programmes for them to improve skills they already have, especially in fields such as electrics and electronics as well as information and communications technology. These job seekers will also have the chance to take up short courses and further their education. In relation to this, job seekers can also claim RM4,000 for training expenses from SOCSO, even if they don’t contribute to it. If you heard the PM’s full speech, you also would have heard him mention ‘ekonomi gig’ or a ‘gig economy’. For those who are new to this term, a gig economy is where you would see a lot of short-term employment contracts and freelance work. As the country recovers from an economic crisis, we will naturally be seeing more of these type of jobs. So, to promote the growth of a gig economy, the government will allocate: RM50 million for gig economy workers to have contributions made to SOSCO’s Employment Injury Scheme and EPF’s i-Saraan scheme 25 million to the Malaysia Digital Economy Corporation for the Global Online Workforce to help Malaysians run businesses online that can even attract customers from overseas. Companies that hire unemployed people will get subsidized Up to March 2020, around 610,500 Malaysians were said to be without jobs. In an effort to decrease the unemployment rate in Malaysia, the government has introduced what is known as Program Insentif Pengambilan Pekerja, which will cost RM1.5 billion. Under this incentive, companies will receive an allowance if they hire someone who currently doesn’t have a job. However, this is divided into two age groups: Workers under 40— RM800 monthly per worker Workers 40 and above, as well as people will disabilities—RM 1,000 monthly per worker These allowances will be given for 6 months. Applications for this aren’t open yet, but we’ll update this article once we have more information. Besides that, companies who hire school leavers and fresh graduates for apprenticeships/internships will also receive an allowance. The previous allowance for companies was set at RM500 per person. However, with this economic recovery plan, it has now been increased to RM600 per person. As you can see, there is a lot of work to be done to ensure that Malaysians get all the help promised above. To make sure everything runs as planned in the next few months, a Jawatankuasa Khas Pekerjaan Nasional, or a national committee for jobs will be formed to oversee it. This committee will be run by Finance Ministry and Human Resource Ministry, as well as some representatives from the private and government sectors."
" There’s a new law against corruption - Here's how it affects companies and their directors THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect ASKLEGAL's position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article as it has not been verified by a practicing lawyer. by Jonathan Khaw | jonathan.k@chernco.com.my | CHERN & CO. The Malaysian Anti-Corruption Commission (MACC) (Amendment) Act 2018 introduces a new Section 17A to the MACC Act 2009 which will come into effect on 1st June 2020. This new provision will impact businesses of all shapes and sizes regardless of the industry in which you operate. It will present heightened liability risks not only for companies engaging in corrupt practices, but it also imposes personal liability on directors and corporate officers of that company. Hence, if you think your business will not be affected by this new provision, it’s time to think again. What is the new “Corporate Liability Provision”? The new Section 17A expressly provides that a commercial organisation commits a criminal offence, if it is found that its employees or its associates corruptly gives, offers or promises any gratification to any persons for the benefit of the said commercial organisation. As we speak, the term “commercial organisation” under the new provision is loosely defined to include not only Malaysian companies but also companies incorporated overseas that carry on a business in Malaysia. Hence, a local branch office with its head office in Beijing, for instance, is likely to be caught under the new provision. Moreover, the offence under the new provision is one of strict liability. This means that it would be enough to prove that the company committed the corrupt practice, and the question of whether or not the company’s director knew, or intended it to happen is not relevant. From this perspective, the new provision also imposes personal criminal liability on directors and corporate officers to align them with corporate faults. In simpler terms, if your company is found guilty for the offence, then it should be borne in mind that the directors, controllers, officers, partners, and other senior key personnel of that company would also be deemed to have committed the same offence. Unless you or the relevant individuals can prove that the said offence is committed without your consent, or you have conducted all of the required due diligence you ought to have exercised in your capacity in the company to prevent the said offence from being carried out. Importantly, ignorance of this new provision, or merely lousy practice can never be a defence. Upon convicted under this new provision, a commercial organisation shall be liable to a fine of no less than 10 times the value of the gratification, or RM1 million, whichever is higher, or be subjected to a prison term of not exceeding 20 years, or both. In this context, as one can see, the new provision pins responsibility firmly on senior decision-makers within the business, making them personally liable. Hence, it makes it more critical than ever before for senior key personnel of a company to ensure proper anti-corruption policies and mechanisms are in place, and everyone in the company strictly follows such procedures. Your organisation should start implementing “adequate procedures” to prevent corruptions The only Defence that can shield a commercial organisation from prosecution for the strict liability offence of failing to prevent corrupt practices is to demonstrate and prove that it had in place “adequate procedures” and controls to prevent bribery and corruption. The MACC Act does not define “adequate procedures”, but the MACC has published the “Guidelines on Adequate Procedures” about procedures that commercial organisations can put into place to prevent corrupt practices. Notably, the guidelines are not authoritative. However, we highly recommend a company to use them as a reference point when designing or fortifying their internal procedures and policies, or corruption risk management to establish “Adequate Procedures” as a compliance defence in the event of being implicated in accusations of corrupt practices. We reproduce these T.R.U.S.T principles as follows: Top-Level Commitment Risk Assessment Undertake Control Measures Systematic, Review, Monitoring And Enforcement Training and Communication Bearing the above in mind, the internal controls programme and the steps of action that we recommend for your company will be proportionate to the risks you face and the size of your business. Particular attention should be given if your company is operating in one of the following industries: Entertainment Construction Government contracting company Retail & Financial services Logging Plantation Here are some sample steps to guide you There are some steps that your business can take to protect yourself from being caught under the new provision. Here are 5 stages that you can follow as a guidance in setting up a procedure for your company: 1st Stage: Perform Risk Analysis to determine the areas in which potential risks of corruption lie. 2nd Stage: Conduct/Implement Robust Internal Controls to address “gaps” found in Stage 1. 3rd Stage: Staff Training & Raise Awareness concerning the prevention controls and detection processes in Stage 2. 4th Stage: Testing and Evaluating the application and effectiveness of the internal controls. 5th Stage: Periodic Follow up to test your compliance programme and conduct consistent training sessions to key personnel. In short, it is important for commercial organisations to take appropriate and consistent steps to make sure that their businesses do not involve in corrupt activities. While companies that have their internal legal team can come up with their own framework, other companies, particularly small and medium-sized enterprise (SMEs), can engage firms with experience in Commercial Law to help them. Jonathan Khaw is the principal lawyer of CHERN & CO. – A Commercial law firm specializing in all aspects of corporate & commercial laws. Jonathan was a foreign consultant at Tilleke & Gibbins, a leading international law firm in Bangkok, Thailand before setting up CHERN & CO. He can be reached at jonathan.k@chernco.com.my."
"The Malaysian government CAN legally take your land and property...under 3 conditions Note: Different laws apply for East Malaysia. In Sabah, the subject is governed by the Land Acquisition Ordinance Cap 68 and in Sarawak, Part 4 of the Sarawak Land Code (Cap 81) 1958 applies. If you’ve lived in the same town your whole life, you would notice the slow, but progressive changes over a period of time. An old housing area you used to live in, would have been replaced by the MRT project in the recent years. But what actually happens to those who are still living in that area, when a new development project comes about? Now most of the time, these developments would require some permit from the government, in order to build something new on that land. But what if you bought a house in a certain area, and you’re now asked to vacate to accommodate a new buildout in your town? So the question for this article will be: Is it possible for the government to take your land...although you live there? They can take your land...IF it’s for public purposes Now, there are only certain circumstances where the government can legally take your land from you...although it’s yours. The Land Acquisition Act 1960 (LAA), allows the government to take over a person’s land for public purposes (we’ll explain this later) and if it benefits everybody. Section 3 of the Land Acquisition Act states: “(1) The State Authority may acquire any land which is needed— (a) for any public purpose; (b) by any person or corporation...which in the opinion of the State Authority is beneficial to the economic development of Malaysia...or, (c) for the purpose of mining or for residential, agricultural, commercial, industrial or recreational purposes or any combination... In other words, your land can be taken if it’s necessary for any development in your township. So if the next MRT project is supposed to pass through where your house is located, there might be a possibility that the railway company or even the state government, might come knocking on your door. [READ MORE: Strata title vs individual title - how does it affect Malaysian landowners?] In fact, they did knock on a lot of doors. For the Sungai Buloh-Kajang MRT line, MRT Corp acquired over 600 private land lots through the Land Acquisition Act. Despite protest from some of the land owners, the plan was still approved by the government. During a hearing with the land owners, the project director said that the land acquisition was unavoidable—as it was part of the Government's urban renewal plan. But some of you might wonder if this is even legal, as land ownership is guaranteed under Article 13 of the Federal Constitution. But this isn’t the case, as your constitutional right over your land is still subject to the government’s right to take your land—but under the condition that you’ll be compensated for it (more on this later). Now taking over someone’s land isn’t as easy as the Act makes it sound. The state government will only do so, after careful consideration. However, there’s still a chance for you to stop it from happening. [READ MORE: Can the Malaysian government take your property if you die without a will?] You can stop the government under certain conditions Now if the government requires your land to build a post office which will benefit people living in that area—they can depend on the law stated in the Act, which gives them the right to do so. But in order to prevent the authorities from taking your land, you must prove two things: The land isn’t being used for public purposes The use of land is not done in good faith. The term ‘public purpose’ can be defined via case law. In S Kulasingam & Anor v Commissioner of Lands, Federal Territory & Ors, it was stated that: “The expression ""public purpose"" is incapable of a precise definition…it is still best to employ a simple common sense test, that is, to see whether the purpose serves the general interest of the community.” This essentially means that if its beneficial to the public as a whole, you may have no choice but to let your land go. As for good faith, it simply means the intention that the authorities have is sincere, and the land will not be used for any other purpose which isn’t stated in the Act. So, if you’re staying in a property that the government wants, but you don’t want to let it go, you need to argue the two grounds stated above. But take note, you can only do so within 3 months from the day you receive the Form E Notice, which will state the government’s intentions to take your land. But of course nothing comes free in life. If the government really wants your land, they have to pay for it. But can you name your price? ;) If they take your land, they have to pay you for it So if all fails and you cannot prove anything against the government’s reason to take your land, you will have no choice but to let go. But at least you will be guaranteed compensation. We mentioned Article 13 of the Federal Constitution in the beginning of this article, which will be your saviour in case your land gets taken away from you. The constitution essentially states that the government must give you adequate or enough money in exchange of your land that they need. But the price of your land will be determined by a Land Administrator via an inquiry done on your land. Once the inquiry is done, and a value has been calculated, a valuation report will be prepared. The Land Administrator will then give you an ‘award of compensation’ for your land. Now if you have any objections against the amount you’ve been compensated, you can fill up Form N within 6 weeks. The courts will then get involved to resolve the issue. Now for cases involving property and the government, it’s best to get legal advice before filling any forms or notices. Each case is subjective and may require additional assistance—as property can differ on ownership, title, market value and type. So it’s definitely best to get in touch with a lawyer to help you out! [READ MORE: Is it safe to write your own contract in Malaysia? (Or sign one)] This article is co-written by Matdura S. and Eric Wong"
"A man challenged Selangor's syariah law on 'unnatural sex'. Why did the court allow it? Update 25 February 2021: The Federal Court has ruled that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995, which allows for punishment for unnatural sex, is unconstitutional. The power to enact criminal laws lies primarily with Parliament. Back in November 2018, 11 men were caught by JAIS for attempting to have ‘unnatural sex’ (for this case, men having sex with other men) in Bangi. They were charged by the Selangor Syariah Court under Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995. One year later on November 2019, five of them were convicted, and were sentenced to jail time, fines and canings. However, their punishments have been appealed, and they would need to wait for the response from the syariah court. At that time, Numan Afifi, one of the LGBTI activists who was providing support for the eleven men, considered a constitutional challenge against the Syariah law used against them. That means challenging whether the law was allowed to be made under the Federal Constitution. It wasn’t clear back then how they would challenge it. Six months on, we now have the answer. One of the eleven men who was charged by the Syariah court has made a petition to the Federal Court. In this petition, he challenged the validity of the law used to charge him under the Federal Constitution. Basically, he said that the Selangor Syariah court does not have the constitutional right to make those laws in the first place. Surprisingly, the Federal Court has actually granted leave to the petition. This means that the Federal Court believes they have a legitimate case, and will actually allow for their arguments to be heard. (NOTE: Please keep in mind that this case is not challenging Islam, or Syariah laws which governs Muslims in Malaysia. Rather, it is a challenge on the Selangor state government’s power on creating this law under the Federal Constitution.) You can challenge any law in Malaysia First, let’s look at the Syariah law challenged in this case: Section 28 of Selangor’s Syariah Criminal Offences. Under this section, it is a crime to have ‘sexual intercourse against the order of nature’ with any man, woman, or animal. Offenders can be punished by a fine of up to RM5,000, a maximum of six years of jail time, not more than six canings, or any combination of the punishments. But the man is not challenging the Syariah law itself. Rather, he is challenging Selangor’s right to make this law in the first place. If you didn’t know yet, you have the right to challenge the constitutional validity of certain laws in Malaysia. This is provided for us under Article 4(4) of the Federal Constitution. But you can’t just challenge any law you want. Under Article 4(4), you can only do so if the laws were made by the parliament or state governments, and they either did not have the power or was not under their scope. If either of the conditions apply, only then can it be brought to the Federal Court. And even then, it still requires the court judge to grant leave – which basically means they’ve given you permission to do so. And the Federal Court judge did grant leave. There were two reasons the judge did so: First, that it wasn’t frivolous or abused court process, which means the case is actually serious and you’re not wasting the court’s time. Second, that the case was about a state government making laws which falls under the federal government’s scope. There can only be one law To understand why the challenge is allowed, first we need to understand the federal and state government’s law-making powers. We’ve elaborated on it before in another article, which you can read below. [READ MORE: Azmin says businesses can sue state government for not following CMCO. But is this true? ] Basically, in the Federal Constitution’s Ninth Schedule, there are lists that tells us what areas each government can make laws for. List I tells us what areas the Federal Government can make laws for. List II and IIA tells us what areas the State Government can make laws for. List III tells us what areas both governments can make laws for. If you take a peek into List II, you’ll find that the Selangor government can make laws on: “creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List”. This means that they can make laws on religious offences by Muslims, but only if the Federal Government hasn’t made any laws on it yet. However, the Federal government has already made a law relating to Section 28. Laws on unnatural sex are covered by the Penal Code’s Section 377 and 377A. This is the man’s main argument: that the Selangor government has went beyond its scope, by making a law that’s already covered by the Federal government. Same same but different sex laws As it is with any potential court case, the Selangor government argued back against the challenge on them. They sent some preliminary arguments to the judge regarding the petition. The judge answered it and included his comments in the judgment. Argument 1 Selangor government’s lawyer argued that the state law’s Section 28 is not identical to the Penal Code’s 377A. Both laws also state different punishments. Hence, the application is frivolous – meaning that the case has no basis – and should be dismissed. He also added that Muslims in Malaysia are governed under two laws: general laws made by the Federal Government, and state laws which cover religious issues. But he did, however, note that under the Interpretation Act’s Section 59, a person can’t be charged twice for the same crime, if it’s a crime under two written laws. So technically a person who commits a crime under either federal law or state law could be charged in either court. (Note: It could mean that it doesn't matter which law you're charged under for the same offense. As long as you're only charged once. The judge's comment below will clarify this) Judge’s comment: The difference between the state’s law and the federal law is not a conclusive issue, as the main question is whether the state government had the power to create the law in the first place. Similarly, the judge gave the same view on the second argument. He interpreted Selangor’s lawyer as saying, it’s fine for someone to be prosecuted under Section 28, as long as he isn’t also charged under Section 377A of the Penal Code. But the argument did not cover whether the state government had the power to create the law in the first place. Argument 2 Selangor’s lawyer argued that the state has the right to make Islamic laws. Section 28 covers unnatural sex, and that is considered to be against the precepts of Islam. Judge’s comment: He agreed that Muslims in Malaysia are subject to two different laws. However, laws made by the states must first be constitutionally legislated – which means that state laws can’t clash with federal laws. TL;DR We’ve tried to explain the case as simple as possible, but we understand if it can still be a little difficult to follow. But in general, what happened is a man was charged for unnatural sex by Selangor’s Syariah court. He then went to the Federal Court and said the Selangor government’s law is unconstitutional. Basically, the state government had no right to make the law in the first place. Selangor’s lawyer gave a few arguments to the court on why they have the right to make the law. The judge thought the argument didn’t answer whether the state had the right to make the law under the Federal Constitution. The judge thinks the case is good enough to be argued at the Federal Court – the highest court in Malaysia. Update: The Federal Court has decided that Section 28 of the Syariah Criminal Offences (Selangor) is unconstitutional. Do note that this case doesn't mean Syariah laws won't be applied anymore in Malaysia. It just clarifies which areas Syariah laws can be applied on."
"3 things Malaysian employers should know before shutting down their company As the economy has been hit hard recently, you might have heard of many Malaysians losing their jobs in the last 2-3 months. While some companies have resorted to laying off staff in an effort to save costs, there are also others that have shut down completely. There may also be many companies that are considering closing for good at this point. If you didn’t already know, companies can’t just shut down as they like. In fact, there is a long list of laws that govern the process of shutting down a company. These laws can be found in different parts of the Companies Act 2016. As the laws are so extensive, we decided to break them up and cover them in a few articles. If you’re an employee, we’ve already written an article discussing what companies need to do for you when they decide to close down. [READ MORE: 3 things employees in Msia MUST be given if their company closes permanently] Now in this article, we’ll go over the basics that companies need to know before deciding to pull down the shutters for good. There are two ways to shut down a company Before you actually start the process of closing down your company, you should know that there are two ways this can be happen. There’s also a way for other people to ask for your company to be closed down, but we’ll talk about that later. For now, the two ways that you can close your company are: winding up striking off company from the Suruhanjaya Syarikat Malaysia (SSM) register Winding up is a longer process and can take up to a few years. However, it’s the more popular method as companies that have assets under their name will need to opt for this one. On the other hand, while striking off the company name from SSM’s register can also take awhile, it is a much cheaper option. But as we mentioned, you can only do this if your company has no assets. So, you’ll just be cancelling your company with no strings attached. Once you have decided which way works best for your company, you’ll need to make your way to an SSM office to start the process of shutting down. But before you go, you can read up on some key info on their website regarding both winding up and striking off. You’re not the only one who can decide to shut down your company Wait, what? But it’s YOUR company. Now, this part can be a bit confusing, but please bear with us. Under winding up, there are two ways your company can be wound up, and it largely depends on the financial condition of your company: voluntary winding up compulsory winding up Voluntary winding up means that the company itself decides that it does not want to operate anymore. But this can only be done if the company is not bankrupt. Meaning, they do have enough money with them. They can basically cite any reason for wanting to close the company EXCEPT for financial difficulties. But the company isn’t the only one who can use voluntary winding up. Creditors, also known as people the company owes money to, can also ask for the company to be shut down. However, this can only be done if the company is indeed in financial difficulties. Basically, the creditors ask for the company to shut down as they don’t want to finance them anymore. On the other hand, compulsory winding up is when the court gets involved. This is when someone, usually also a creditor, goes to court and starts a winding up claim against your company. Now, this doesn’t automatically mean your company has to shut down. The court will have to decide based on the claim made. If they decide in favour of the creditor, then you will have to shut down. Regardless of which method you choose to wind up, there are two requirements that have to be met before doing so. Previously, companies had to respond to a winding up claim within 21 days AND they had to have a debt of at least RM10,000. However, this has now been changed, and companies: have 6 months to respond to a winding up claim need to have a debt of at least RM 50,000 There’s an order of people you have to pay before fully shutting down Once the winding up has been approved by SSM, you’ll then need to sell your company assets. The money that you get from that will be used to pay off a list of people involved in the company. Section 527 of the Companies Act 2016 says that you need to pay people in the following order: secured creditors under a fixed charge (such as banks and other institutions which give you a loan) , and then preferential creditors: liquidators (people who oversee the whole winding up process) employees’ salaries other compensation for employees (termination benefits) paying off leave that was not taken by employees EPF, SOCSO and EIS contributions for employees taxes owed to the government And of course, they would also have to pay the shareholders of the company as well. But as you can see, shutting down a company is a long process as there are many parties involved. Fortunately, as we mentioned above, there is a now a change in law which allows companies to have more debt and time before being asked to close. This stricter requirement will make it tougher for creditors to start a winding up claim in court against a company. In turn, this may be able to save a number of companies in Malaysia from having to shut down."
"MACC can now fine the company AND employer for corruption...even if an employee did it Malaysians have been embracing so many new changes in 2020. Some don’t even need an introduction like...COVID-19. But let’s put this viral infection aside for now, as we’ll be seeing change on how Malaysian companies will operate to prevent another illness from becoming widespread: Corruption. Now, this new law does not mean there were no laws fighting against corruption in the first place. The 1MDB trial and Tabung Haji scandal are infamous cases, where the individuals behind it have been questioned over corruption in the companies. But that’s basically how the laws have worked so far when it comes to corruption-related matters: The individuals involved are in trouble, while the company where it all started from has no action taken against it. The Malaysian Anti-Corruption Commission Act 2009 (MACCA) only has laws to take action against people who are involved in the corruption scandal. But with a new law that will be implemented on the 1st June 2020, MACC will be able to find companies guilty—on top of the individuals involved. Some of you might now ask why MACC would want to go after companies as well, instead of those who committed the crime, alone. The reason behind this new law—which is better known now as Section 17A—is the government’s plan to encourage businesses to fight corruption, by placing measures to prevent corporate entities from taking part in illegal dealings. With May coming to an end soon, and this new law officially coming into effect on 1st June, let’s take a look at how it will affect companies and businesses in the next few days. The law applies to ALL companies, big or small Here’s something to note before we go into the details of Section 17A. All companies, whether a partnership, private or public company can be found guilty under this new section. The term used to classify all types of businesses in the Act is called a “commercial organization”. A company (commercial organization) is technically treated like a person in the Companies Act 2016. [READ MORE: Which Malaysian business type should you choose for your company?] Under Section 20 of the Act, a company is said to have a legal personality separate from its members. This means that a company exists as a legal entity (like a person) and is separate from its members like directors, employees and so on. So if someone from the company commits a wrongdoing while posing as the company, the company may be sued instead of its members. But this can be lifted under certain circumstances. Read the link below to know how: [READ MORE: Can a Malaysian company be Muslim? Here's the court case that gave us the answer] With that, here’s basically what Section 17A does, as stated in the MACC Act: “A commercial organization commits an offence if a person associated with the commercial organization corruptly gives, agrees to give, promises or offers to any person any gratification whether for the benefit of that person or another person with intent— a) to obtain or retain business for the commercial organization; or b) to obtain or retain an advantage in the conduct of business for the commercial organization” So apart from only making the individuals involved within the company guilty, this section also makes the commercial organization (the company) guilty for giving what in legal terms is known as ”gratification”. Gratification simply means anything valuable—whether it’s goods, a position, or even discounts. It somewhat becomes a bribe when it is given to ask someone to do (or not do) something that is supposed to happen. If you take away the legal technicalities, it basically means that if you give or take a bribe, you’re committing a crime. But if you were just a regular employee who broke one of the laws in the MACC Act—will you, your boss and your company get in big trouble? If the company is guilty, your boss is automatically guilty Previously, only the individuals who commit an offence stated in the MAACA can be found guilty for the crime. But as we mentioned earlier, Section 17A now makes any director, partner or manager of the company personally guilty for the offence committed by anyone in the company. For instance, if an employee had been taking part in an illegal business dealing, and his manager knew about it—the employee, manager and the company will be guilty, as stated under Section 17A(3). This is pretty much an extended liability on the company and its members—unless the director or manager can prove that the offence was committed without his knowledge. This essentially means, that the burden of proof that they are innocent lies with the directors or managers to show that they had no idea their employee had been part of an illegal business dealing, through the company. If the directors of the company want to prove that the company had not been in fault as well, Section 17A has a provision making it necessary for the company to have adequate policies, which could have prevented the employee from committing the crime. But if a company is found guilty, it can be fined a maximum penalty which is 10 times the sum of gratification (bribe) involved or RM1 million, based on which is higher. So how will this new law change things for Malaysian companies? Companies must have strong policies against corruption Several parties have already been urging for Section 17A to be implemented as promised by the government last year. But with this section coming into force, companies must prepare with adequate corporate governance procedures, to prevent themselves from committing crimes which will bring MACC to their doorstep. With so many procedures and policies that need to be followed by companies, it’s always best to look for professional advice (ie. a lawyer). If you’d like to know more on how the laws will be implemented or need general advice, you can always contact MACC on their hotline: 1-800-88-6000 or check out their site."
"Riza Aziz dilepaskan: Tapi tu tak bermakna yang dia tak bersalah atas pertuduhannya [Click here for English version] Boleh dikatakan majoriti daripada kita semua tahu tentang skandal membabitkan 1MDB dan usaha nak mendapatkan balik aset-aset badan itu. Setakat ini, sejumlah AS$322 juta atau sekitar RM1.3 bilion dah berjaya dikembalikan semula ke Malaysia. Bekas Perdana Menteri, Najib Razak yang menjadi suspek utama kes 1MDB masih lagi dalam proses perbicaraan, sebaliknya anak tiri beliau – Riza Aziz baru-baru ni dah menjadi tajuk utama media. Sebabnya, Riza dah dilepaskan dari 5 pertuduhan pengubahan wang haram bernilai hampir AS$248 juta dari dana 1MDB. Mahkamah memutuskan yang Riza dilepas tanpa dibebaskan atau bahasa Inggerisnya – discharge not amounting to an acquittal (DNAA). Tapi, keputusan tu disertai juga dengan perlunya Riza bersetuju untuk membayar AS$107 juta. Kami tahu mesti ada di antara anda yang tertanya-tanya apa dia dilepas tanpa dibebaskan (DNAA) ni? Adakah tu bermakna Riza memang dah tak bersalah dari sebarang pertuduhan terhadapnya sekarang? Walaupun mungkin ada dakwaan daripada pihak-pihak tertentu yang cuba membantah keputusan mahkamah atau mengaitkannya dengan soal politik, itu semua di luar pengetahuan kami. Jadinya, apa yang kami boleh bincangkan adalah tentang apa yang dimaksudkan dengan DNAA dalam kes Riza ni. Pertama sekali, kita semua kena tahu yang… Bukan sekadar bersalah dan tak bersalah je, yang ada dalam kes mahkamah Bila seseorang tu didakwa dengan kes jenayah di mahkamah, kita selalunya akan fikir tentang dua keputusan iaitu sama ada dia bersalah atau tak bersalah. Tapi sebenarnya, masih ada jalan tengah di mana seseorang tu boleh jadi masih bersalah, tapi pihak pendakwa raya buat keputusan untuk tak mendakwanya buat masa sekarang. Sebenarnya ada 3 keputusan iaitu: Tidak bersalah – Mereka dibebaskan dari dakwaan kesalahan mereka dan tuduhan terhadap mereka digugurkan. Tertuduh kini seorang yang tak bersalah dan boleh jalani kehidupan secara bebas. Bersalah – Mereka akan disabitkan dan dijatuhi hukuman atas kesalahan mereka. Hukuman itu boleh jadi denda, penjara, atau kedua-duanya Jalan Tengah – Inilah dia yang dinamakan sebagai dilepas tanpa dibebaskan (DNAA). Tertuduh dilepaskan sekarang. Tapi mahkamah masih boleh mendakwanya di kemudian hari. Satu lagi perkara yang kita kena tahu, DNAA ni bukan diputuskan oleh mahkamah, sebaliknya ia diminta oleh pendakwa raya kepada mahkamah untuk keputusan itu dibuat. Kalau anda tak tahu apa itu pendakwa raya, ini dia contoh ringkasnya. Pada asasnya akan ada dua peguam dalam satu kes. Satu peguam yang membela tertuduh, dan seorang lagi yang akan cuba berhujah bahawa tertuduh bersalah. Peguam pertama dipanggil sebagai peguam bela, manakala peguam kedua dipanggil sebagai pendakwa raya. Bila dah tahu apa yang pendakwa raya ni buat, jom kita kembali pada isu pokok. Sebenarnya, pendakwa raya ada hak untuk berhenti mendakwa tertuduh. Hal tu ada disebut dalam Seksyen 254, Kanun Prosedur Jenayah: (1) Pada setiap tahap pengadilan, sebelum keputusan penghakiman, Pendakwa Raya boleh, jika difikirkannya sesuai, memberitahu Mahkamah bahawa dia tidak akan mendakwa tertuduh lebih lanjut atas tuduhan tersebut dan… tertuduh akan dilepaskan dari yang sama… (3) Pelepasan tersebut tidak akan menjadi pembebasan kecuali jika Mahkamah mengarahkan sebegitu. Jadinya, sebelum mahkamah buat sebarang keputusan sama ada tertuduh bersalah atau tak, pendakwa raya boleh meminta supaya kes itu dihentikan seketika. Tapi, tertuduh tak akan dibebaskan daripada tuduhan terhadapnya dan hal ni bermakna, mahkamah masih belum kata yang dia tak bersalah. Tapi kenapa pula mereka buat macam tu? Sebenarnya, ada beberapa sebab perkara ni diambil, dan yang paling pentingnya adalah… Kita tak boleh mendakwa seseorang untuk jenayah yang sama dua kali Di bawah undang-undang Malaysia, kita tak boleh mendakwa seseorang dengan jenayah yang sama. Perkara ni dipanggil sebagai “double jeopardy”. Tapi, perkara ni cuma jadi kalau mahkamah dah memutuskan kes anda, sama ada didapati bersalah atau tidak atas sesuatu jenayah. Ini adalah hak asas kita semua, dan ia dinyatakan dalam Artikel 7, Perlembagaan Persekutuan. (2) Seseorang yang telah dibebaskan daripada sesuatu kesalahan atau disabitkan atas sesuatu kesalahan tidak boleh dibicarakan semula kerana kesalahan yang sama kecuali jika sabitan atau pembebasan itu telah dibatalkan dan perbicaraan semula diperintahkan oleh suatu mahkamah yang lebih atas daripada mahkamah yang telah membebaskan atau mensabitkannya itu. Keputusan sama ada anda bersalah atau tak bersalah sebenarnya tak menjadi masalah, selagi mana mahkamah dah memutuskan kes tersebut. Cumanya, ada pengecualian kalau mahkamah yang lebih tinggi mendapati yang keputusan tu salah dan membatalkannya atau dengan kata lain – membatalkan keputusan sebelumnya. Hal ini kemudiannya akan membawa kepada perbicaraan semula. Dalam masa sama, ada banyak sebab atau keadaan yang menyebabkan seseorang pendakwa raya tu meminta supaya DNAA dilaksanakan. Kadang-kadang tu sebab bukti tak cukup, atau siasatan tak lengkap dan mereka nak mengukuhkan bukti terlebih dulu. Jadinya, mereka akan ada kes yang lebih baik di masa akan datang. Dengan adanya DNAA juga, ia akan membenarkan pendakwa raya untuk mendakwa kembali terduduh dengan jenayah sama di masa akan datang. Masa tu, tertuduh tak boleh gunakan double jeopardy dan pertuduhan masih boleh dibicarakan di mahkamah. Jadinya, kalau mahkamah dah memutuskan sama ada Riza bersalah atau tak, dia tak boleh didakwa lagi dengan jenayah sama di masa depan. Tapi, disebabkan dia dapat DNAA, dia kemungkinan akan dibawa semula ke mahkamah, dengan tuduhan yang sama di masa akan datang. Riza mungkin dilepaskan sekarang, tapi ruang untuk mendakwanya semula masih terbuka."
"3 things employees in Msia MUST be given if their company closes permanently During this MCO period, we’ve seen many businesses take a hit due to a loss of income. Companies have taken several measures to stay afloat in this time, such as cutting employees’ salaries and even laying off some of their staff. But in some cases, the losses suffered by the company are so great that they’re forced to shut down altogether. You might have read in the news about businesses in Malaysia closing down during the MCO/CMCO. When a company in Malaysia is closing down, they can do it in two ways: winding up the company striking-off the company name from Suruhanjaya Syarikat Malaysia’s register Because the law on closing a business is complex, it would be impossible to discuss everything in one article. So for now, we’ll be looking solely at the winding up of a company, the method that is chosen when a company has assets under their name. We also won’t be going into the detailed process of winding up, either. Rather, we’ll be focusing on the employees in the process. More specifically, we’ll look into what a company has to do for its employees when they decide to call it quits. 1. Employee salaries have to be paid before other debts Assuming the winding up is done according to procedure, the company’s assets will then be sold and liquidated (turned into cash). This money will then be used to pay anyone the company owes money to, especially their shareholders and creditors. Understandably, part of that money would also be used to pay whatever salary is owed to you as an employee of the company. Previously, there was no real order of who was allowed to take their money first. This would have put employees at a disadvantage, especially if shareholders wanted to take what was theirs first. Things changed when winding up laws were enacted. Now, there is a list of who should be paid off first once the money from the sale of the companies’ assets comes in. The company will need to pay off its secured debts, followed by its unsecured debts. Examples of secured debts include bank loans and other assets that have been lent to the company. Once these are paid off, the unsecured debts will become priority. In fact, Section 527 of the Companies Act is literally titled ‘Priorities’, and it says: (1) Subject to this Act, in a winding up there shall be paid in priority to all other unsecured debts – (b) secondly, all wages or salary, whether or not earned wholly or in part by way of commission...not exceeding fifteen thousand ringgit or such other amount...within a period of four months before the commencement of the winding up; (c) thirdly, all amounts due in respect of worker’s compensation under any written law relating to worker’s compensation accrued before the commencement of the winding up So wait, who will be paid first in this list? That will be the people who oversee the whole winding up process, such as liquidators and auditors. But once they are paid, you as an employee are next in line. To reiterate, the order of payments looks like this: secured creditors such as banks → liquidators and auditors → employees 2. Your SOCSO, EPF and unused leave would also need to paid As an employee in Malaysia, you would know that you don’t bring home every single cent that you earn. Every month, some perfectly legal pay cuts such as SOCSO, EPF and EIS will be made to your salary. While these cuts are made to your own pay and put into funds for you to use later, your employer also has to contribute to these funds. Interestingly, the law does not allow them to stop this contribution…even during financial hardship. The same Section 527 that we mentioned above goes on to say: (e) fifthly, all amounts due in respect of contributions payable during the twelve months next before the commencement of the winding up by the company as the employer of any person under any written law relating to employees social security contribution and superannuation or provident funds… But retirement and emergency funds aren’t all. If you worked really hard and didn’t use up your leave, you will also be paid back for that. This can again be found in Section 527 where it says: (d) fourthly, all remuneration payable to any employee in respect of vacation leave, or in the case of his death to any other person in his right, accrued in respect of any period before the commencement of the winding up; 3. Employees who earn below RM2,000 will be given other benefits If you earn more than RM2,000, we’re really sorry but this section won’t apply to you. However, for those who do fall under that bracket, the Employment Act of 1955 comes to the rescue. Under that Act is a set of regulations known as the Employment (Termination and Lay-Off Benefits) Regulations 1980. Among other things related to termination of an employee, in Section 6, it also states how much an employee should be paid if they are terminated. This amount, however, varies as it depends on the number of years you have worked in the company. An important thing to note about these regulations is that they don’t apply if you yourself resigned, or if you were terminated due to retirement or misconduct. But in a case where the company is letting you go due to it shutting down, this would work for you. If you don’t come under the Employment Act, the law can’t help you much in this respect. However, it might be good to check your employment contract to see if there are any terms which state what you would get if you were terminated. Laws have been changed to save companies from winding up Previously, in order to be given a winding up notice by the court, a company had to have a debt of RM10,000 and only 21 days to respond to a winding up claim. To help more companies from being shut down during this period, this law was recently changed. Now, the company will need to have RM50,000 as debt and will be given 6 months instead of just 3 weeks to respond to a claim. This means that lesser creditors (those the company owes money to) can start a winding up claim against the company. [READ MORE: 5 regulations Malaysian companies DON'T have to follow during the MCO] But if it is inevitable that your company will shut down, it’s good for you as an employee to know your rights so that you can be better prepared in challenging times."
"5 perkara yang membolehkan pemilik kondo saman pihak pengurusan  [Click here for English version] Nota penting: Walaupun kami menyatakan “pengurusan kondominium” di dalam artikel ini, undang-undang ini juga terpakai pada pangsapuri, flat, mana-mana hartanah bertingkat dan juga hartanah dalam skim komuniti berpagar. Kalau anda tinggal di kondominium (kondo), kemungkinan besar anda akan berkongsi masalah dengan pihak pengurusan ataupun pemaju. Anda mungkin ada banyak perkara yang tak berapa berkenan di hati dan anda nakkan perkara tu diselesaikan dengan baik. Jadinya di sini, kami senaraikan 5 perkara yang membolehkan anda saman pihak pengurusan kondo. Di akhir artikel ini, anda akan nampak langkah-langkah yang diperlukan kalau anda nak saman pihak pemaju. Sebelum kita tengok pada senarai yang membolehkan kita saman pihak pengurusan tu, jom kita kenali dulu pihak-pihak yang terlibat, terutamanya siapa sebenarnya pihak pengurusan ni. Pemaju – inilah pihak yang beli tanah dan bina kondo anda di atasnya. Pada tahun pertama, mereka akan menguruskan hartanah anda. Badan Pengurusan Bersama (JMB) – pemaju akan mengadakan mesyuarat dengan penduduk kondo kira-kira setahun selepas rumah anda siap untuk anda pindah masuk. Lepas mesyuarat ni diadakan, pengurusan baru akan dibentuk dan JMB akan mengambil alih peranan menguruskan hartanah anda. Perbadanan Pengurusan (Management Corporation) – Sebaik saja selepas hak milik strata atau “strata title” dikeluarkan untuk unit-unit dalam kondo anda, Perbadanan Pengurusan ni akan ambil alih pengurusan. Kalau anda tak tahu apa dia hak milik strata ni takpe! Kami akan jelaskan dengan lebih terperinci nanti. Tapi secara mudahnya, hak milik strata ni diberikan kepada anda untuk memberitahu yang anda adalah pemilik tunggal rumah tu, dan untuk dapatkan hak milik ni selalunya mengambil masa sikit. Sebab itulah penting untuk kita tahu siapa yang menguruskan hartanah kita, supaya kita dapat pastikan mereka tu betul-betul bertanggungjawab. Sekarang ni, kita nak cakap pula tentang perkara yang macam mana membolehkan anda saman mereka ni: 1. Membiarkan hartanah anda buruk dan tak terurus Anda mungkin dah lama perasan yang kondo anda tu semakin tak terurus sejak kebelakangan ni. Dan disebabkan masalah ni terus berpanjangan – ia nampaknya dah membuatkan keadaan semakin tak selesa dan mungkin boleh mendatangkan bahaya pada hartanah anda. Kalau keadaan dah jadi sampai macam ni, selalunya orang Malaysia ni cuma akan mengeluh je. Tapi nasib baiklah ada Akta Pengurusan Strata 2013, sebabnya dari pergi ke pejabat pengurusan dan bertekak dengan orang di sana, anda sebenarnya boleh je untuk terus saman mereka sebab tak jalankan tugas dengan baik! Seksyen 48(1) dalam Akta menyatakan: Pemaju hendaklah, semasa tempoh pengurusan permulaan dan tertakluk kepada peruntukan Akta ini, bertanggungjawab untuk menyenggarakan dan menguruskan dengan sepatutnya bangunan atau tanah yang dipecah bahagi, dan harta bersama. Manakala, Seksyen 48(4) pula menyatakan: Mana-mana pemaju yang tidak mematuhi subseksyen (1) atau (3) melakukan suatu kesalahan dan boleh, apabila disabitkan, didenda tidak melebihi dua ratus lima puluh ribu ringgit atau dipenjarakan selama tempoh tidak melebihi tiga tahun atau kedua-duanya. Hal ni bermakna, kalau pihak pengurusan gagal menjalankan tugas mereka dan menjaga hartanah anda dengan sepatutnya, mereka boleh didenda sehingga RM250,000 atau dipenjara maksimum 3 tahun atau kedua-duanya. Ya betul, kesalahan ni serius. Sebenarnya, sebelum ni kami ada bincang tentang isu saman pengurusan kondo ni dengan lebih mendalam satu artikel, boleh baca di sini. 2. Lewat mengeluarkan hak milik strata Kalau anda tak tahu apa itu hak milik strata (strata title), benda pertama yang anda kena tahu adalah ia hanya diberikan kepada orang yang tinggal di bangunan dengan dua atau lebih tingkat dan hartanah di kawasan berpagar. Secara asasnya, ia adalah untuk pemilik rumah yang berkongsi tanah dengan pemilik rumah lain. Hak milik strata ni memberikan anda hak milik bahagian anda di seluruh hartanah, iaitu unit anda di seluruh kondo, dan sebab itulah ia juga kadang-kadang ia menimbulkan masalah juga. Sebabnya, dalam kes-kes tertentu – ada pemilik rumah yang ambil masa bertahun-tahun untuk nak dapat hak milik ni dan hal ni kemudiannya menimbulkan masalah lain pula. Kalau anda masih ingat, kami ada cakap pasal Perbadanan Pengurusan tadi yang tak boleh dibentuk selagi mana hak milik strata ni tak dikeluarkan. Jadinya, kalau anda masih tak dapat hak milik strata, aliran asal untuk pengurusan bertukar tangan tu akan terganggu. Masalah lain dengan tak dapatkan hak milik strata ni adalah kalau anda nak jual kondo anda tu, prosesnya akan lebih merumitkan berbanding kalau anda nak jual bila dah ada hak milik strata. Jadinya, ini antara isi penting yang kita kena tahu: Dalam Akta Hak Milik Strata 1985 ada dinyatakan di beberapa bahagian dalam Akta yang sebenaranya undang-undang mengkehendaki pihak pemaju mengeluarkan hak milik strata dalam tempoh 3 bulan selepas kondo anda tu siap. Maknanya, kalau mereka gagal buat macam tu, anda ada hak untuk ambil tindakan terhadap mereka. 3. Tak buat akaun penyelenggaraan dan kumpulan wang penjelas (sinking fund) Disebabkan pemaju adalah orang pertama yang menjadi pihak pengurusan, tugas mereka adalah untuk mewujudkan akaun penyelenggaraan dan kumpulan wang penjelas (sinking fund). Yuran dalam akaun penyelenggaran ni nanti akan digunakan untuk memelihara kawasan yang dikongsi antara penduduk kondo. Manakala, yuran dalam kumpulan wang penjelas pula akan digunakan untuk ubahsuai mana-mana bahagian kondo bila diperlukan. Seperti mana yang anda boleh nampak, yuran penyelenggaraan dan kumpulan wang penjelas ni mainkan peranan besar untuk memastikan keadaan kondo anda tu sentiasa terjaga dan selesa. [BACA LAGI: Why you should pay your maintenance fees and sinking funds] Seksyen 10(1) Akta Pengurusan Strata 2013 menyatakan: Pemaju hendaklah membuka satu akaun penyenggaraan berkenaan dengan setiap kawasan pemajuan dengan suatu bank atau institusi kewangan Dan Seksyen 11(1) pula menyatakan: Pemaju hendaklah membuka satu akaun kumpulan wang penjelas berkenaan dengan setiap kawasan pemajuan dengan suatu bank atau institusi kewangan Kalau pemaju anda gagal buat dua perkara penting ni, mereka boleh didenda maksimum RM250,000 atau dipenjara sehingga 3 tahun atau kedua-duanya. Tapi, perkara ni tak terpakai kepada pemaju je. Bila JMB dan Perbadanan Pengurusan ambil alih pengurusan, mereka juga tertakluk dalam undang-undang sama dan hal tu boleh didapati dalam Seksyen 23, 24, 50 dan 51 Akta Pengurusan Strata 2013. 4. Tak adakan AGM untuk bentuk pengurusan baru Seperti yang dikatakan di atas, pemaju mesti menyerahkan pengurusan kepada jawatankuasa yang baru dibentuk selepas sekitar setahun bertugas. Mesyuarat Agung Tahunan atau AGM kena diadakan untuk membincangkan sebarang masalah atau isu yang dihadapi oleh organisasi, dan semestinya memang penting untuk pengurusan perumahan untuk mengadakan AGM macam tu. Keperluan pengurusan perumahan untuk mengadakan AGM setiap tahun ni sebenarnya adalah syarat di bawah undang-undang sendiri. Seksyen 18 Akta Pengurusan Strata 2013 menyatakan yang pemaju adalah pengurusan pertama dan kena mengadakan AGM pertama. Kegagalan untuk buat macam tu boleh mengakibatkan hukuman yang berat. (1) Hendaklah menjadi kewajipan pemaju untuk mengadakan mesyuarat agung tahunan pertama bagi badan pengurusan bersama dalam tempoh yang dinyatakan dalam subseksyen 17(1). (2) Mana-mana pemaju yang tidak mematuhi subseksyen (1) melakukan suatu kesalahan dan boleh, apabila disabitkan, didenda tidak melebihi dua ratus lima puluh ribu ringgit atau dipenjarakan selama tempoh tidak melebihi tiga tahun atau kedua-duanya. * 12 bulan dari masa rumah anda tu siap untuk pindah masuk Kalau anda nak tahu, sekumpulan penduduk dari sebuah perumahan yang dikenali sebagai K Residence sebenarnya pernah bawa pemaju mereka, Duta Yap ke mahkamah sebab gagal bentuk JMB. Ada juga isu lain iaitu dana pengurusan dan penyelenggaraan yang didakwa dah disalah guna. Dalam masa sama, penduduk rasa sangat tidak senang kerana pengurusan baru yang tidak dibentuk walaupun rumah mereka dah sedia untuk pindah masuk lebih dari 12 bulan yang lalu. Oleh kerana kes ini masih berjalan, kami belum tahu macam mana kesudahannya. Tapi apa yang kita boleh ambil pengajaran, kita sebenarnya ada hak di bawah Akta Pengurusan Strata 2013. 5. Tidak menginsuranskan hartanah anda dari kerosakan Kebanyakan daripada kita ada polisi insurans kita sendiri. Malah, terdapat juga yang ada insurans untuk rumah mereka. Tapi tahu tak anda yang pengurusan kondo anda juga sepatutnya sediakan insurans untuk hartanah anda? Seksyen 93(1) Akta Pengurusan Strata 2013 menyatakan: Mana-mana orang atau badan yang mempunyai kewajipan atau bertanggungjawab di bawah Akta ini untuk menyenggarakan dan menguruskan mana-mana bangunan hendaklah menginsuranskan bangunan itu di bawah suatu polisi kerosakan dengan penanggung insurans yang berlesen mengikut Bahagian ini. Akta ni kemudiannya menyatakan polis kerosakan macam mana yang bangunan tu kena ada seperti “kebakaran, kilat, letupan, pecahan atau limpahan tangki air atau paip dan ribut”. Oleh itu, anda mungkin boleh menginsuranskan unit anda sendiri masa anda membeli polisi insurans rumah. Tapi, polisi kerosakan yang disediakan oleh pengurusan kondo pun sama pentingnya kerana ia merangkumi perkara-perkara yang lebih besar, seperti pendawaian dan paip di seluruh kondo. Kalau anda belum ada polisi insurans ni, bolehlah hubungi pejabat pengurusan dan dapatkan salinannya. Atau kalau pengurusan kata anda tak ada polisi insurans, bolehlah anda tunjukkan Seksyen 93 ni kepada mereka dan mungkin terus tunjuk artikel ni je. [BACA LAGI: 5 steps to take when you want to sue your condo developer in Malaysia]"
"Riza Aziz is discharged. But that doesn't mean he's innocent of his charges Most of us would be familiar with the 1MDB scandal, and the recovery efforts to get back the stolen funds. So far, US$322 million – which is roughly RM1.3 billion – has been recovered. Former prime minister Najib, the key suspect in the 1MDB case, is still going through trial. But it’s his stepson, Riza Aziz, that has been making the headlines recently. Riza Aziz was recently released from his five charges of laundering nearly US$248 million from the 1MDB funds. The court gave Riza what is called a ‘discharge not amounting to an acquittal’ (DNAA). But the deal came with strings attached: he needs to pay an agreed US$107 million to be granted the decision. We know some of you would wonder, what is a discharge not amounting to an acquittal (DNAA)? Does that mean Riza is innocent now? We do know there are juicier questions in this case. But we can’t comment if Riza’s DNAA is a fair deal, or cover the political drama surrounding the decision (sorry!). That is out of our depth, and we shall leave it to the political and law analysts out there. But what we can do is explain what the DNAA means for Riza’s case. At the very least, we can be slightly more informed of what’s going on in this case. First thing to know is... There’s more than just guilty and innocent in court cases When someone’s charged with a crime in court, we tend to think there are only two outcomes: either someone is guilty or innocent. But there is actually a middle path (of sorts), where someone could still be guilty, but the prosecutors decide not to charge him for now. So there are actually three outcomes: Innocent - They’re acquitted of their crimes, and charges against them are dropped. The accused is now an innocent man and can walk free Guilty - They will be convicted and sentenced for their crimes. This could be a fine, jail, or both Middle Path - This is DNAA. The accused is let go for now. But the courts can still charge him at a later date Do note that DNAA isn’t decided by the court. Rather, it’s the prosecutor who asks the court to give this decision for their case. In case you don’t know what a prosecutor is, let us give a simple example. There are basically two lawyers in a case. One lawyer who defends the accused, and one lawyer who tries to argue that the accused is guilty. The first lawyer is called a defense lawyer, the second lawyer is called an offence lawyer prosecutor. So now that we know what a prosecutor does, let’s get back on track. The prosecutor has the right to stop prosecuting the accused, for now. Under Section 254 of the Criminal Procedure Code: (1) At any stage of any trial, before the delivery of judgment, the Public Prosecutor may, if he thinks fit, inform the Court that he will not further prosecute the accused upon the charge and…(the) accused shall be discharged of and from the same...(3) Such discharge shall not amount to an acquittal unless the Court so directs. So before the court has made any decision on whether the accused is guilty or not, the prosecutor can ask to stop the case for the time being. But the accused will not have the charges against him cleared – meaning he’s still not declared innocent by the courts. But why would they do that? There are a few reasons, but the most important one is… You can’t charge someone for the same crime twice Under Malaysian laws, you can’t be charged again for the same crime. This is called double jeopardy. But this only applies if the court has decided on your case, as in whether you’re found to be guilty or innocent of the crime. This is our basic right, and is listed in the Federal Constitution under Article 7: (2) A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted. The verdict whether you’re innocent or guilty doesn’t matter, as long as the court has decided on the case. The only exception would be if a higher court thought that the decision was wrong and quashes it, basically cancelling the previous decision. This would then lead to a retrial. There are many reasons or circumstances why a prosecutor will ask for a DNAA. Sometimes it’s because the evidence is insufficient, or the investigation is incomplete and they would like to strengthen it first, so they would have a better case in the future. But no matter the reason, asking for a DNAA allows the prosecutor to charge the accuse with the same crime again in the future. The accused then can’t use double jeopardy and can still stand trial for their crimes. So if the court has decided whether Riza was either guilty or innocent, he can’t be charged again in court for the same crime in the future. But since he was given a DNAA, he may be brought to court again, for the same charges in the future. Riza might be released for now. But the option of charging him again is still open."
"Can LHDN force your family members to pay YOUR tax...if you die? Perhaps the age old saying “Nothing is certain except death and taxes” might be true after all. So, if you ever thought death would finally release someone from all monetary commitments, we can confirm it via this article, that it doesn’t. Let us explain better with a scenario. Imagine this: You’ve been happily married for almost 5 years until...your spouse suddenly dies from a heart attack. As tragic as this may sound, the loss of your partner brings you more pain, when you receive a letter from the Inland Revenue Department—or better known as LHDN—stating that you’re now responsible to pay for your partner’s taxes. Apart from feeling shocked and confused, you also have so many questions buzzing in your head on why YOU have to pay tax on behalf of your deceased partner. Now, this isn’t some scam or trick played by LHDN...as it is a legal requirement for you to do so. LHDN can legally collect tax even after someone dies Here’s something to take note of before we go on: The tax that needs to be paid, basically applies for individual taxes and not business tax. This tax is also not the same as an ‘inheritance tax’ (tax on property/money inherited) which does not exist in Malaysia. Now if someone dies, one of the first things you’d want to look into, is whether or not they have written a will. A will essentially contains information on how the assets of a person is passed down to their beneficiaries after their death. So if there is a will, the executor (person who “executes” the duties listed in the will), is responsible to pay any remaining taxes owed by the deceased, using the deceased person’s wealth. But if the deceased person died without a will, the next-of-kin (normally the spouse or children) are responsible to pay LHDN whatever amount of tax that has been unpaid by the deceased. Read the link below to know what to do if your partner dies without a will. [READ MORE: Can the Malaysian government take your property if you die without a will?] So once your spouse or family member has passed, and you’re now responsible for all their monetary commitments, you have the duty to inform LHDN about the death. Section 74 of the Income Tax Act 1967 states as such: “Where an individual dies in the basis year for a year of assessment, his executors shall be assessable and chargeable to tax for that year of assessment, for the following year of assessment and, whenever necessary, for any previous year of assessment in respect of the chargeable income...for any such year of assessment; and...they shall be assessable and chargeable to tax in like manner...as the individual would be assessed and charged to tax if he had not died.” The Act essentially states that the executor or next-of-kin shall be responsible and can be charged on behalf of the deceased person, as if he was still alive. LHDN will then conduct an assessment on the deceased person’s individual taxes and property within a period of 3 years from the day the death was informed to them. So assuming the deceased person had 3 sources of income—mainly from his job, the rental of his house and interest from a personal loan he gave out—LHDN will consider all of that as the income that shall be assessed. The executor/next-of-kin will be responsible for filing the taxes for the deceased, until all outstanding payments are settled. But there are certain leeways on how you can pay on behalf of a deceased person... LHDN allows payment by installments Now if you’re reading this, you’re obviously alive and have been paying your taxes (we hope). It’s important to note, that the form used to file taxes on behalf of a deceased person is called the TP form, which is pretty much the same as our BE/B form. The payments can be made at any LHDN office, online banking and at post offices. [READ MORE: Here's 5 common tax filing mistakes made by Malaysian taxpayers] So in the event you become responsible for someone else’s outstanding taxes, you can always make the payments by installments, as stated by LHDN. But if you fail to do so, LHDN can bring a civil suit to recover the outstanding sum owed to them. Section 106 of the Act states so, like this: “Tax due and payable may be recovered by the Government by civil proceedings as a debt due to the Government.” In other words, the taxes owed by the deceased person still counts and legal action will be taken to recover it. This can even include freezing the deceased person’s assets until the outstanding tax amount is paid. There is also a penalty imposed for late submissions of the TP Form, which is a 10% increase of any pending payment. As you can see, even in death you can’t escape the taxman. This is one spooky story indeed. So in order to avoid having to deal with a huge mess, LHDN urges the next-of-kin or executor of the deceased person, to check if there are any taxes that need to be paid. [READ MORE: 5 common Malaysian tax offences you don’t want to accidentally commit]"
"Covid-19: Hak individu terhadap rawatan perubatan THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect ASLEGAL’s position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article as it has not been verified by a practicing lawyer. oleh Mohd Zamre Bin Mohd Zahir | zamrezahir7@gmail.com Dalam perkara melibatkan kes perubatan, terdapat prinsip-prinsip yang perlu diperhalusi. Prinsip-prinsip tersebut antara lain membantu penyeliaan proses membuat keputusan perubatan dan menyelesaikan konflik yang terjadi antara pesakit, ahli keluarga dan kakitangan kesihatan termasuk doktor. Prinsip-prinsip yang dimaksudkan ini ialah prinsip-prinsip yang melibatkan empat prinsip etika perubatan yang dibangunkan oleh Beauchamp dan Childress iaitu prinsip autonomi, prinsip manfaat, prinsip tidak memudaratkan dan prinsip keadilan. Prinsip autonomi merupakan prinsip etika perubatan yang dibangunkan oleh Beauchamp dan Childress. Perkataan autonomi berasal daripada Greek daripada dua perkataan dasar iaitu auto dan nomos. Auto bererti “sendiri” dan nomos bererti “peraturan dan undang-undang.” Berdasarkan pengertian autonomi ini, prinsip autonomi memberikan ruang kepada individu untuk berfikir dan membuat keputusan, bertindak di atas asas pemikirannya sendiri, bebas membuat keputusan dan tidak bergantung kepada sesiapa. Setiap individu berhak dalam membuat keputusan kerana minda dan fizikalnya adalah miliknya. Kebebasan individu untuk membuat keputusan mestilah tidak dihalang oleh paksaan atau pengaruh tidak wajar daripada pihak lain. Dalam kes Re T (Adult: Refusal of Medical Treatment), Mahkamah Rayuan memutuskan bahawa walaupun setiap pesakit dewasa mempunyai hak dan kemampuan untuk menolak rawatan perubatan, anggapan ini boleh disangkal apabila terdapat faktor kekeliruan, tidak sedarkan diri, keletihan, atau kejutan yang mempengaruhi keputusan pesakit itu. Dalam kes ini, ibu pesakit yang merupakan penganut Jehovah’s Witnesses telah mempengaruhi keputusan anak perempuannya untuk menolak daripada dipindahkan darah ke dalam tubuh anaknya. Oleh itu, mahkamah memutuskan keengganan untuk tidak diberikan pemindahan darah bagi menyelamatkan nyawa pesakit adalah tidak dibenarkan. Doktor juga perlu mengambil kira sama ada keputusan pesakit telah dibuat secara bebas atau tidak. Doktor yang berhadapan dengan keengganan pesakit rawatan dalam keadaan yang mengancam nyawa seperti ini boleh merujuk kepada mahkamah. Batasan kepada prinsip autonomi adalah tidak membahayakan sebagaimana yang dibincangkan oleh John Stuart Mill. John Stuart Mill walau bagaimanapun tetap berpegang teguh bahawa setiap individu adalah bebas untuk bertindak tanpa mencampuri urusan orang lain termasuklah membahayakan orang lain. Ini bermakna batasan kepada prinsip autonomi adalah tidak membahayakan pihak lain. Dalam konteks Covid-19, ia merupakan penyakit berjangkit tanpa vaksin yang diketahui untuk mencegah penularannya. Penyakit berjangkit tanpa vaksin yang diketahui untuk mencegah penularannya mampu membahayakan pihak lain. Jika seseorang individu yang menghidap Covid-19, ia mampu menjangkiti orang lain tanpa mengira usia, jantina, pangkat, agama apatah lagi bangsa. Oleh itu, walaupun seseorang itu mempunyai autonomi untuk membuat keputusan berhubung dengan rawatan perubatannya, sama ada ingin meneruskan rawatan atau menolak rawatan perubatan, terdapat persoalan berkenaan dengan autonomi individu tersebut. Berdasarkan konteks tidak membahayakan pihak lain, individu tersebut haruslah menerima rawatan perubatan. Bukan sekadar itu, ia penting dalam konteks kesihatan awam. Pertubuhan Kesihatan Sedunia (WHO) menyatakan bahawa wabak Covid-19 di Wuhan pada akhir 2019 telah mencapai tahap pandemik global pada 11 Mac 2020. Oleh sebab Covid-19 suatu yang “the alarming levels of spread and severity,” WHO meminta pihak berkuasa mengambil tindakan segera dan agresif untuk menghentikan penyebaran virus tersebut. Setakat 12 Mei 2020, sebanyak 4,298,371 kes dilaporkan, 289,199 kematian dan 1,546,297 sembuh di dunia. Manakala di Malaysia, sebanyak 6,742 kes dilaporkan, 109 kematian dan 5,223 sembuh. Berdasarkan prinsip autonomi, setiap individu berhak mendapatkan hak kesihatan dan rawatan perubatan. Setiap individu berhak mendapatkan rawatan termasuk rawatan jika dia menderita akibat Covid-19. Undang-undang antarabangsa bagi hak asasi manusia menjamin setiap individu berhak mencapai tahap kesihatan yang tinggi dan mewajibkan pihak berkuasa mengambil langkah-langkah untuk mencegah ancaman terhadap kesihatan awam serta memberikan rawatan perubatan kepada mereka yang memerlukannya. Undang-undang hak asasi manusia juga mengakui bahawa dalam konteks ancaman terhadap kesihatan awam yang serius dan keadaan yang mampu menakutkan masyarakat dalam negara, batasan terhadap hak adalah wajar berdasarkan perundangan dan bukti-bukti ilmiah. Dalam penyelidikan yang lain bertajuk ‘Using public health law to contain the spread of COVID-19’ oleh Richard Griffith dalam British Journal of Nursing, 5 (29) hlm. 326-327 bertarikh 12 Mac 2020, beliau mendapati terdapat keperluan pertimbangan kuasa dari pihak para menteri dalam sesebuah kerajaan, pihak berkuasa kesihatan dan pihak berkuasa tempatan untuk meminimumkan penyebaran novel coronavirus dan penyakit-penyakit yang ditimbulkan daripadanya. Di Malaysia, terdapat Akta Pencegahan dan Pengawalan Penyakit Berjangkit 1988 (Akta 342) digubal untuk meminda dan menyatukan undang-undang berkait pencegahan dan pengawalan penyakit berjangkit yang berlaku dalam negara. Ia juga untuk mengadakan peruntukan atau peraturan berkenaan perkara yang berkaitan. Akta ini terpakai di seluruh negara, kepada semua rakyat Malaysia dan penduduk yang bermastautin atau berada di Malaysia pada masa ia dikuatkuasakan. Akta 342 adalah satu set undang-undang yang memberitahu kita apakah langkah-langkah yang boleh diambil semasa pandemik, dan apa yang berlaku jika kita ingkar dengan apa-apa perintah yang dibuat pada masa itu. Seksyen 24 dalam Akta ini menyatakan hukuman denda dan penjara sehingga dua tahun untuk kesalahan kali pertama, denda dan penjara lima tahun untuk kali kedua, dan denda tidak melebihi RM200.00 bagi tiap-tiap hari kesalahan itu berterusan. Dalam Seksyen 25, Ketua Pengarah atau mana-mana pegawai awam yang diberi kuasa olehnya bagi maksud ini secara bertulis boleh mengkompaun apa-apa kesalahan di bawah Akta ini atau mana-mana peraturan yang dibuat di bawah Akta ini yang telah ditetapkan oleh peraturan-peraturan sebagai boleh dikompaun dengan mendapatkan daripada pesalah itu sejumlah wang yang tidak melebihi RM1,000.00. Berdasarkan Seksyen 31 (1) Menteri boleh membuat peraturan-peraturan, bagi keseluruhan atau mana-mana bahagian Malaysia, termasuk lapangan terbang, pelabuhan, perairan pantai dan sempadan daratnya, bagi melaksanakan peruntukan Akta ini. Berdasarkan Peraturan-Peraturan Pencegahan dan Pengawalan Penyakit Berjangkit (Langkah-Langkah di dalam Kawasan Tempatan Jangkitan) 2020, memperuntukkan kawalan pergerakan dan perhimpunan. Bukan itu sahaja, seseorang warganegara atau pemastautin tetap Malaysia yang pulang dari luar negara hendaklah menjalani pemeriksaan kesihatan apabila tiba di Malaysia sebelum mendapatkan pelepasan imigresen di mana-mana pintu masuk dan hendaklah mematuhi apa-apa perintah yang dikeluarkan oleh pegawai diberi kuasa. Selanjutnya, mana-mana premis yang menyediakan perkhidmatan perlu boleh dibuka dengan syarat bahawa bilangan kakitangan dan pengunjung di premis itu berada pada tahap minimum. Sesiapa yang melanggar Perintah Kawalan Pergerakan boleh dipenjara sehingga 6 bulan, didenda RM1,000.00 atau kedua-duanya. Intihanya, dalam konteks Covid-19, setiap individu mempunyai hak terhadap kesihatan dan rawatan perubatan. Walau bagaimanapun, berkaitan dengan autonomi individu tersebut sama ada untuk menerima rawatan atau menolak rawatan timbul satu persoalan lain yang memerlukan kepada kajian lanjut. Contohnya, dalam situasi pemberian bantuan pernafasan CPR jika pesakit berhenti bernafas atau jantungnya berhenti berdegup, terdapat isu sama ada pesakit Covid-19 wajar diberikan bantuan tersebut atau tidak. Jika di negara barat, terdapat arahan yang disebut sebagai Do Not Resuscitate (DNR) yang disebut sebagai Larangan Resusitasi (LR) yang digunakan oleh doktor untuk tidak memberikan bantuan pernafasan CPR kepada pesakit Covid-19. Walau bagaimanapun, pengaplikasiannya memerlukan penyelidikan yang lebih lanjut dan bukti yang lebih tuntas. Bukan itu sahaja, teori bahaya daripada John Stuart Mill bersama-sama prinsip-prinsip etika perubatan wajar dikaji dengan lebih kritis dalam konteks pesakit Covid-19. Dalam konteks penularan Covid-19 di Malaysia, penulis ingin memberikan 3 pesanan penting iaitu: Duduk di rumah, just stay at home; Menjaga kebersihan diri pada setiap masa dan kerap membasuh tangan menggunakan air dan sabun secukupnya; Menjaga jarak antara individu sekurang-kurangnya 1 meter. Mohd Zamre Bin Mohd Zahir merupakan siswazah/calon PhD di Fakulti Undang-undang Universiti Kebangsaan Malaysia dan sedang melakukan penyelidikan dalam bidang undang-undang perubatan. Beliau boleh dihubungi melalui email: zamrezahir7@gmail.com"
"Here are 5 unexpected reasons why Malaysians were arrested for violating the MCO We’ve been under the MCO for close to two months now and recently, the Prime Minister announced a conditional MCO that will go on for at least another 3 weeks. Just as the MCO was about to start on March 18th 2020, a new set of regulations was passed to get people to comply with the MCO. These regulations are known as the Prevention and Control of Infectious Diseases (Measures Within The Infected Local Areas) Regulations 2020. While these regulations have had slight adjustments made to them over the weeks, the penalty for breaching the MCO has remained the same up to this point: a fine up to RM1,000 a jail sentence of 6 months, maximum both of the above PDRM and Angkatan Tentera Malaysia have set up roadblocks and are conducting checks all over the country to ensure that people are strictly following the MCO. Up to 30th April 2020 alone, they have arrested a whopping 22,4000 individuals for violating the MCO in some way or the other. While we can’t tell you why every single one of them was arrested, here are 5 of those cases that were widely reported. Two brothers-in-law went fishing for food Background: This happened in Sungai Siput, Perak at the start of April. It involved two men who did repair work for a living, and could not get any income during the MCO. Both their wives were also not employed. Due to this lack of income and hence food, these men decided to catch some fish at a nearby river to feed their families. However, while at the river, they were found by the police and arrested. Penalty: The pair said that they would serve jail time as they would not be able the pay the fine amounting to RM2,000. So, the Magistrate Court sentenced them to 3 months in jail. However, this decision was appealed and it went to the Taiping High Court. There, it was decided that they would do community service for 3 months instead, for 4 hours a day. They were also asked to report to the Sungai Siput police station every Monday during the MCO. A young couple met up to have cake together Background: On April 18, a university student from Subang baked a cake for her boyfriend and drove 800 metres from her house to meet him there. The boyfriend on the other hand, had driven a further distance to meet her—8km, to be precise. They were caught while having the cake in the car. Penalty: The two of them received different penalties. The student was fined RM800 and sentenced to a week of jail. She was told that she would need to spend another 2 months in jail if she failed to pay the fine. The boyfriend received a much harsher sentence: he had to pay a fine of RM1,000 and serve a jail sentence of 2 months. An 80-year-old uncle waited for free food Background: This took place in Tampin, Negeri Sembilan on April 11. An 80-year-old man was seen waiting at a restaurant near his house. When a police officer asked him to leave, he fell asleep on a table at the restaurant. But he wasn’t the only one waiting at the restaurant. His neighbour—also a senior citizen—was there as well. It was later discovered that the elderly man lives alone and has no source of income. He had come to the restaurant to collect his food, as the restaurant was providing free meals for the underprivileged. According to several reports, as for why he had suddenly fallen asleep on the table, it was because he has narcolepsy, a severe sleeping disorder. Penalty: Both the elderly man and his neighbour were fined RM1,000 each for being at the restaurant. The CFO of a local organization had said funds were being raised to pay off these fines, as both the elderly people are in no condition to pay up. However, at the time of the writing, we don’t know if the organization managed to raise the full amount needed. When questioned, the police chief of Tampin, Anuwal Abdul Wahab said that they had been fined as such because they were repeat offenders who had been warned several times prior to the incident. A student went to his friend’s house for an assignment Background: This incident happened April 3, at about 11:30pm. A 20-year-old university student had travelled to his friend’s house in Rawang to work an assignment. Where he had travelled from, or how far he had travelled has not been reported up to now. He was specifically charged for “deliberately being present in an area of infection without any logical excuse”. He was caught while travelling back to his home. Penalty: He was fined the maximum amount, which is RM1,000 by the Selayang Magistrate Court. The court also told him that he would have to serve a jail sentence of 3 months if he failed to pay the fine. A woman who was talking to her friends after buying food Background: On the evening of April 12, a single mother went out to buy some food for herself and her son. On the way back home, she had stopped to talk to some of her friends. They were found to be gathering at a staircase near a playground. She was initially told that she would be let off with a warning, but was later taken to the police station where a case was filed against her. Penalty: She was sentenced to 30 days of jail by the Petaling Jaya Magistrate Court. After spending 8 days in the Kajang Prison, she was asked to appear in the High Court in Shah Alam. There, after the judge took into consideration that she was a single mother and a first time offender, her jail term was replaced with a fine of RM1,000. The MCO is still in effect Most of the cases above were charged at the early stages of the MCO where the rules were more strict. As we know, many MCO rules have been relaxed and we have a little more liberty to move around more now. Because of this, we are now in what is known as a Conditional Movement Control Order (CMCO). However, this does not mean that there are no more laws in place to regulate our movement. As a matter of fact, the same laws STILL apply and violators can still be fined or jailed. Defence Minister, Dato’ Sri Ismail Sabri has said that if more and more people keep going against these laws, the CMCO might be changed back to the usual MCO, which means that we would have to follow stricter rules again like we did some weeks ago. While the Inspector-General of Police Tan Sri Abdul Hamid Bador has confirmed that the names of MCO violators would not be entered into the PDRM criminal record system, it’s still best to be responsible and follow these rules as closely as possible."
"Ini sebabnya syarikat boleh batalkan kontrak pekerjaan SELEPAS anda dah tandatangan [Click here for English version] Anda dah lama cari kerja dan dah banyak temuduga yang anda hadiri. Akhirnya, anda dapat panggilan dari syarikat dan mereka beritahu yang anda terpilih untuk jadi salah seorang kakitangan syarikat. Anda pun pergilah ke syarikat tu dan tandatangan surat tawaran kerja. Semuanya nampak baik je mula-mula, sampailah beberapa minggu lepas tu. Tiga minggu kemudian, anda dapat panggilan dari syarikat tadi dan kata – mereka tak boleh ambil anda bekerja disebabkan masalah kewangan. Anda yang mula-mula rasa gembira, bertukar sedih, terkejut dan tak tahu nak buat apa dengan situasi macam ni. Masa artikel ni ditulis, kita semua masih lagi berdepan dengan ancaman Covid-19 dan Malaysia berada di bawah Perintah Kawalan Pergerakan Bersyarat (PKPB). Kita juga banyak dengar pasal masalah kewangan yang dihadapi syarikat-syarikat, sampaikan ada syarikat yang terpaksa memberhentikan pekerja dan menarik balik surat tawaran kerja yang dah ditandatangani sebelum PKP bermula. Tapi selain dari kerana Covid-19 dan PKP, kita juga pernah dengar ada syarikat yang tarik balik surat tawaran kerja, walaupun takde apa-apa isu seperti masalah kewangan. Jadinya, perkara macam ni menimbulkan persoalan jugalah – sama ada boleh atau tak syarikat batalkan surat tawaran kerja atau kontrak pekerjaan yang dah ditandatangani? Sebelum kita bincang lebih lanjut, kita kena tahu dulu yang… Ada perbezaan antara surat tawaran kerja dan kontrak pekerjaan Mungkin perkara ni agak mengelirukan sikit, tapi takpe – kami cuba gambarkannya untuk anda: Senario A: Syarikat beritahu yang anda dah diambil bekerja. Mereka hantar surat tawaran untuk mengesahkan perkara tu. Surat itu cuma beritahu anda tentang jawatan dan tarikh mula bekerja. Ia juga kata kontrak pekerjaan rasmi dengan terma dan syarat yang lengkap hanya akan diberikan kepada anda nanti. Senario B: Syarikat beritahu yang anda dah diambil bekerja. Mereka minta anda tandatangan perjanjian rasmi yang mengandungi terma dan syarat berkaitan dengan pekerjaan anda. Anda pun tandatanganlah perjanjian tu. Jadinya sekarang, dalam Senario A, syarikat memaklumkan kepada anda secara hitam putih yang anda dah diambil bekerja dan perjanjian rasmi akan menyusul. Tapi dalam Senario B, anda dah diminta untuk tandatangan kontrak dan perkara tu menjadi tanda bermulanya hubungan sah/kontrak antara anda dengan syarikat. Anda sekarang terikat dengan terma dan syarat dalam kontrak, begitu juga dengan syarikat. Jadi inti utamanya adalah: Sehingga anda dan syarikat secara rasminya bersetuju untuk terikat secara sah dengan terma dan syarat, tak ada apa-apa yang boleh membuatkan mana-mana pihak menarik balik kenyataan mereka. Maka, inilah sebabnya kenapa anda tak boleh kata adanya persetujuan dengan Senario A, sebab masa tu anda masih tak masuk dalam mana-mana kontrak pekerjaan. [BACA LAGI: Can a company sue me in Malaysia if I turn them down after signing the letter offer?] Tapi cubalah kata yang anda dah tandatangan kontrak dengan semua terma dan syarat. Tu juga tak bermakna yang syarikat wajib ambil anda bekerja walau apa pun yang jadi sebabnya... Ia bergantung dengan macam mana kontrak anda tu kata Selain dari nyatakan tugas utama anda sebagai pekerja dan tanggungjawab majikan kepada anda, kontrak pekerjaan juga akan merangkumi beberapa perkara lain seperti: tempoh notis anda pemotongan gaji yang dibuat untuk caruman seperti KWSP dan PERKESO apa yang berlaku kalau kontrak itu harus 'ditamatkan' – sama ada anda atau syarikat tak akan terikat dengan kontrak lagi kerana pelbagai sebab Kalau kontrak tu datang dengan klausa tertentu yang membolehkan anda atau majikan ‘menamatkan’ kontrak, syarikat sebenarnya boleh menarik balik tawaran sebelum anda masuk bekerja. Selalunya, hal sebegini datang dengan klausa ‘pampasan’ – di mana syarikat kena bayar jumlah tertentu kepada anda kerana menamatkan kontrak yang dah dipersetujui. Kalau ada klausa macam ni, tapi syarikat tak bagi anda pampasan, makanya anda ada sebab untuk ambil tindakan kepada syarikat. Tapi macam mana pula kalau klausa macam ni takde, tapi tawaran anda tu tetap ditamatkan syarikat? Sebenarnya, ada prinsip undang-undang yang mungkin digunakan oleh syarikat untuk menamatkan kontrak anda tu dan perkara ni dikenali sebagai doktrin kekecewaan (doctrine of frustration). Bagaimanapun, dengan prinsip ni tak bermakna yang syarikat boleh tamatkan kontrak ikut suka hati mereka je. Ia mestilah datang dengan peristiwa yang tak dijangka dan di luar kawalan syarikat sehingga memaksa mereka menarik balik tawaran pekerjaan. Antara contohnya seperti syarikat ditutup atau syarikat dah melalui penyusunan semula secara besar-besaran dan tidak perlukan lagi jawatan anda tu. Kami akan terangkan secara lebih terperinci tentang hal ni di bawah nanti. Tapi, sekarang ia juga menimbulkan persoalan – boleh ke doktrin ni digunapakai dalam situasi seperti pandemik Covid-19? Kontrak pekerjaan boleh mengalami ‘kekecewaan’ disebabkan Covid-19 Kita semua sedia maklum yang Covid-19 ni bukanlah kejadian yang dijangka. Tapi apa yang syarikat kena buktikan kalau mereka nak gunakan kekecewaan ni sebagai sebab menarik balik tawaran pekerjaan? Buat masa sekarang, masih belum ada kes mahkamah berkaitan dengan kontrak pekerjaan yang dibatalkan kerana Covid-19. Jadinya, kami akan tengok kepada kes pekerjaan lama yang boleh bagi penerangan sikit tentang isu seperti ini: Dalam kes MHS Aviation Sdn Bhd v Zainol Akmar Mohd Noor [2001], hakim Mahkamah Perusahaan ada memetik satu kenyataan dari buku – ""Hubungan Industri dan Pekerjaan oleh Harvey"": ""Salah satu contoh penamatan oleh operasi undang-undang adalah doktrin kekecewaan: di mana, tanpa kesalahan salah satu pihak, terjadi beberapa peristiwa pengawalan yang tidak dapat diramalkan secara wajar pada saat kontrak itu dibuat dan yang membuat pelaksanaan kontrak lebih lanjut sama sekali mustahil atau sesuatu yang secara radikal berbeza dari apa yang ditawar oleh pihak-pihak, maka kontrak tersebut segera dibatalkan dengan undang-undang."" Dari petikan ni, dapat kita tengok beberapa perkara yang menjadi elemen utama kekecewaan dan pihak yang mahu menuntutnya (syarikat, dalam hal ini) harus membuktikan unsur-unsur berikut: tak ada pihak yang menyebabkan kekecewaan itu disengajakan kejadian yang tidak dijangka ini tak dapat diramalkan semasa kontrak [pekerjaan] ditandatangani tak mungkin kontrak itu boleh diteruskan/sifat kontrak telah berubah akibat – kesukaran kewangan, kematian, perang, wabak dll. Penting juga untuk kita tahu yang kekecewaan ni boleh digunapakai sebagai alasan untuk menarik balik kontrak pekerjaan sama ada untuk situasi Covid-19 atau tak. Tapi nampaknya, ia mungkin lebih mudah untuk membuktikan elemen kekecewaan masa Covid-19, lebih-lebih lagi bila syarikat terkesan dengan masalah kewangan. Akan tetapi, tu tak bermakna yang syarikat tak boleh tarik balik kontrak pekerjaan selepas Covid-19 atau PKP berakhir nanti – sebabnya apa yang mereka kena buat cumalah membuktikan adanya elemen kekecewaan tersebut. Anda masih boleh bawa kes ni ke Mahkamah Perusahaan Katakanlah yang anda tak dapat terima alasan syarikat menamatkan kontrak anda tu disebabkan Covid-19 atau sebagainya. Sebenarnya, anda masih ada hak untuk failkan tuntutan ke Mahkamah Perusahaan bagi dapatkan keadilan. Apa yang pasti, keputusannya nanti tu akan bergantung kepada merit kes – tapi anda masih ada hak untuk membela diri. Bagaimanapun, anda tak boleh failkan tuntutan ni sampailah PKP berakhir nanti – sebab Mahkamah Perusahaan ditutup. Dari apa yang dah diterangkan ni, ia juga menunjukkan betapa pentingnya untuk kita semua tahu apa yang terkandung dalam kontrak pekerjaan sebelum tandatangan. Pastikan yang anda tengok ada atau tak klausa kekecewaan dalamnya, supaya dapatlah anda berjaga-jaga sekiranya berlaku kejadian yang tak dijangka nanti. [READ MORE: 5 perkara asas yang perlu anda tahu apabila menandatangani kontrak]"
"Malaysia introduced 4 apps during MCO, but how safe is your data when you use it? As we enter new phases of the MCO/CMCO every other week, it’s been tough for some of us to keep up with all the updates that follow through. There have been certain restrictions on traveling and businesses operations—but also leeways to ease us into the CMCO that will be extended for another month. [READ MORE: 5 regulations that have been relaxed during phase 5 of the MCO] Now what better way to be on track, than to just...look it up on your phone? With more than 1.4 million Malaysians who applied for interstate travel permits and wanting to know about the latest COVID-19 updates—the government launched several mobile phone applications and sites to help us during these trying times. These apps are introduced to help us prevent COVID-19 from further spreading, by providing certain information to the public and authorities. The information that the app can provide include a person’s full name, identification number and even track their location/whereabouts! So if you’re thinking about going out for something important, you will need to give these apps the permission to keep track of your location. But this can give users a second thought: How safe is my info with the authorities? Now before we answer the burning question (that we hope to have ignited inside of you) let’s take a look at what some of these apps are and how they work. 1. MySejahtera gives you information about COVID-19 The MySejahtera app serves more than one purpose to manage this pandemic. This Malaysian-made app allows users to carry out their own health-checks on themselves and their families, provides information on the location of nearby clinics and explains the immediate action that needs to be taken if someone is suspected of having the infection. The self health-checks are carried out via a questionnaire, which will then provide results if a person is actually at risk of being infected by the virus or not. All you need to do is register your phone number or email address via MySejahtera’s website and you’re good to go! The app is available on most mobile devices and can be downloaded from the Apple Store, Google Play Store, and Huawei App Gallery. 2. Mytrace let’s you know if you’re near someone who’s infected Your bluetooth device might have a new purpose in life apart from connecting to your car/laptop because, the MyTrace app requires bluetooth activation! The app basically works by allowing ‘contact tracing’, if a person comes in contact with an infected person. For instance, if you’re out to buy food from a nearby mamak and you have the MyTrace app in your phone—the bluetooth in your phone can detect the distance and duration of contact with a COVID-19 positive person—assuming the person has downloaded the same app too. A recent update was also made, that stated the MySejahtera and MyTrace apps are now linked. So you can directly access MyTrace via the MySejahtera app. But you’ll still need to download both the apps for them to work accordingly. You’ll most likely benefit from the app at present as Khairy Jamaluddin stated, that the MyTrace app will be most useful once the MCO has been loosened or lifted...which is basically right now. 3. Gerak Malaysia lets you travel interstate This is probably the most popular app for the past week as most Malaysians have applied for interstate traveling during the CMCO period. The GerakMalaysia app essentially helps PDRM and the Health Ministry trace movement of Malaysians who travel within the country. Users can now register or apply for interstate travels using the app, which is available on the Apple Store, Huawei AppGallery and Google Play Store. The interstate travels started operating in this order last week: May 7: From KL to other states in the Peninsula. May 8: From Perak, Johor and Kelantan. May 9: From Perlis, Kedah, Penang, Melaka and Pahang. May 10: From Selangor, Negri Sembilan and Terengganu. In the Prime Minister’s latest announcement, the CMCO now gives leeway to couples working in different states, to finally meet. He also appealed to Sabah and Sarawak’s state governments to allow for this. So the interstate travel regulations that was initially allowed for work purposes, has been loosened slightly for couples to reunite during the CMCO. Permission to travel can be applied via the Gerak Malaysia app, or at the nearest police station. Now if you’re applying for interstate travels, the data collected by the app include the applicant’s full name, IC number, mobile number and address. The app also requires users to leave their location on during the traveling period. You can check out the FAQ on GerakMalaysia if you’d like to know more on how it works. 4. SElangkah tracks Selangorians who are out and about This one is specially for Selangorians. If you’ve FOMO because you don’t live in Selangor, we’re sorry but it’s probably for the best (judging from the high number of COVID-19 cases in the state). Now SElangkah isn’t actually an app, because it’s basically a QR code which is required to be displayed at all premises, including private and government buildings. Visitors who visit the premise should scan the QR code, where their mobile number will then be logged into the system with the timestamp from their visit. As you can probably tell by now, this app works like a visitors log. It helps businesses keep track of their guests on a daily basis. This way, if there is an infected person, the authorities can track the places where the infected person went, and do the necessary quarantine or sanitization measures. The QR Code can be downloaded by business owners at this website from May 5 onwards. So, if you happen to visit your local supermarket for instance, you’d be able to see the QR codes at the entrance, where you’ll be asked to scan the code via your mobile phone. Now that you know how these apps work and what kind of information you need to provide, we’ll answer that burning question we posed earlier, on whether it’s actually legal for these apps to store your personal info. How safe is your personal data with the government? Some of you might be wary of giving out your info. Not because you’re doing anything wrong (we hope), but because you might like having certain things private. In the terms and conditions laid down by the Malaysian Communications and Multimedia Commission (MCMC), particularly with regard to the GerakMalaysia app, the government and MCMC can only store and use the information provided up to 6 months after the MCO. In other words, your personal data is collected, but they’re not allowed to do anything they want with it. The Personal Data and Protection Act 2010 (PDPA) sets down several principles and regulations to protect the data of users. For instance, Section 9 of the PDPA binds authorities/companies to protect your data from being misused or disclosed without authorization. However, there are certain exemptions for several parties on the non-compliance of the PDPA—the Act mentions that the Federal Government and state governments may be exempted from the PDPA. This means that in some cases, the authorities CAN retrieve your info, if it’s considered important. Due to the current pandemic state we’re in, the collection of certain data can be said to be necessary at this point of time. However, there have been calls made to review the existing laws on data protection due to COVID-19 and the CMCO. Since we finally notice a gap in the law on data privacy, we might just end up having stricter privacy laws in the future."
"Azmin says businesses can sue state gov't for not following CMCO. But is this true? On Labour Day, our Prime Minister Muhyiddin Yassin announced the Conditional Movement Control Order (CMCO) starting on May 4, which allowed businesses across Malaysia to start operating again. With that news, some businesses were ready to operate again, as most of them had to endure a loss of income due to the MCO. But not all states have followed suit. So far, 6 states have decided to not adopt the CMCO; they either continued with the original stricter guidelines in MCO, or adopted a modified version. However, Senior Minister Azmin Ali has spoken up against the move, saying that industries could sue the State Governments for not letting them open. Now, if you’ve read AskLegal before, we’ve written about the many ways you could sue your developer/neighbour/employer/lover. But can you actually sue the State Government? To take that a step further, if you felt the MCO in the first place caused you to lose income, could you actually sue the Malaysian government? But before going into suing, let’s look into whether the state governments had the right to not adopt the CMCO in the first place. States can make their own laws Most of us would think that all the laws in the country are made by the Malaysian government. But that thought is only half true. How it works is like this: The Malaysian government AKA the Federal Government makes the big laws State Governments will make laws relevant to their state Municipals and districts can make smaller laws for their areas called by-laws. An easy way to think of it is: Imagine that our laws were a painting. The federal government makes big, broad strokes. The state government will add more refined strokes, while municipals will add tiny details to it. These law making powers are given to the different governments and are enshrined in the Federal Constitution. In case you don’t know, the Federal Constitution is the supreme laws of the country, and is the backbone that all of our laws are based on. In general, the state and federal government have the right to decide on different set of laws. But there are a few areas where it overlaps. According to Fahri Azzat, one of the lawyers we interviewed for this article: The Federal Government can make laws for areas listed in Schedule 9, List I of the Federal Constitution (FC). State Governments can make laws for areas listed in Schedule 9, List II and IIA. However, there are areas where both Federal and State Governments can make laws for, and that is contained in List III, Schedule 9 (of the Federal Constitution). Public health, sanitation and the prevention of disease falls under List III. That means both Federal and State have the power to make laws so long as they do not conflict with each other. – Fahri Azzat, lawyer, in an interview through email Basically, in the Federal Constitution, there are lists which tells us what areas each governments can make laws for. List I tells us what areas the Federal Government can make laws for. List II and IIA tells us what areas the State Government can make laws for. List III tells us what areas both governments can make laws for. We’ll skip what’s in List I and II and focus on the relevant one: List III. This is where the law making power between the federal and the state government overlaps. And the one to pay attention to in that list is public health, sanitation and the prevention of disease. This means that both the Federal and State Government can make laws in these three areas. As states do have powers to make laws related to public health, could they decide on their own measures to deal with the pandemic? States could choose not to follow the CMCO...sort of We’ve talked to two lawyers on this, and both of their opinions vary. The first lawyer, Fahri, finds that this issue is still undecided at this point. But he thinks that States can choose to not follow the Federal laws, but only if the States have made relevant laws in their state. According to Fahri: This is a difficult question to answer authoritatively at this point because the issue is not decided. My thinking presently is that States can choose not to follow Federal but only if they have made the relevant laws at State level first. States cannot choose to ignore Federal and do as they please without any legal basis. States have to pass laws to address the situation and as much as possible try not to conflict with Federal on significant/important areas. – Fahri In short, states will still have to follow Federal laws, and would need to pass their own laws to address the situation. But some states could have an issue with that, as most state governments don’t have any specific laws on dealing with the pandemic. So far, we’ve found that only Sabah and Sarawak have laws relating to this – each state has their own Public Health Ordinance. The Federal government, however, has laws to deal with the pandemic. They enacted the Prevention and Control of Infectious Diseases Act 1988 (PCID). Under this Act, a minister can make regulations to address the health pandemic. This is the Act that is used to enforce the MCO. But that doesn’t mean that states are wrong in not enforcing the CMCO, and allowing businesses to open again. According to Surendra Ananth, the second lawyer we interviewed, states can take actions which aren’t mentioned in the CMCO, as long as they don’t violate the regulations. According to Surendra: In short, the states cannot act inconsistently with the CMCO (but) they can take actions which are not specified in the CMCO, for example, limiting the operations of businesses. In not allowing certain businesses to be open, it can be argued that the states are not violating the CMCO, but merely complementing it for the purpose of public health. An example where a state would be acting inconsistently with the CMCO would be if the states allow for mass gatherings to take place where this is expressly prohibited under the CMCO. This the states cannot do in my view. – Surendra Ananth, lawyer, in an interview through email So by not allowing certain businesses to be open, the states aren’t going against the federal government. Rather, the move complements the CMCO, as it’s done to protect the public’s health. In general, the view seems to be that it’s still unclear, or that the state government aren’t breaking any laws you can sue them for. But, what if you do believe the state is wrong for not allowing your business to open? Could you file a lawsuit against them? Yes. You can ‘sue’ the government According to Fahri, you can. In fact, others have tried it before. Of course you can. Many have done so with varying degrees of success. If a government does you wrong, of course you can sue them. For example, if an ambulance knocks into your car and damages it. You can sue the government for that damage. – Fahri [READ MORE: If you get into an accident with an ambulance in Malaysia, are you automatically wrong? ] Despite it being possible, he noted that it can be a difficult task. When you’re dealing with the government, the odds are in the government’s favour. There are policies which will favour them a bit more, such as the Public Authorities Protection Act (PAPA), which only gives you 3 years to make a claim against them from the date of the incident. And not only that, you would need to comply with the Government Proceedings Act. However, when we asked him how we could potentially sue the government for it, he just advised that we not do it. In his own words: I recommend they hire a lawyer and pay them for that advice. I am sorry, this (explaining how to sue the government) is like free legal advice and best not attempted especially for a matter this challenging and difficult. – Fahri But. If you’re feeling adventurous, you can still do so. The proper way isn’t a lawsuit, though, as you’ll need to do something called a ‘judicial review’. This is basically asking the court to see whether the authorities did something wrong. In this case, whether the states were wrong in not following the CMCO. According to a third lawyer we interviewed, Gavin Jayapal: Insofar as Azmin Ali's statement is concerned, I believe that he is wrong to say that lawsuits could be filed. A lawsuit would be civil litigation. The proper avenue would be for Judicial Review proceedings to be initiated challenging the decisions of the respective State Governments, with a claim for damages attached. – Gavin Jay Anand Jayapal, lawyer, in an interview through email So it is possible to sue the state government for not following the CMCO. But whether you succeed or not, is a whole different question."
"Pekerja yang dibuang kerja boleh tuntut faedah insurans pekerjaan. Ini caranya [Click here for English version] Dah lebih sebulan kita menjalani Perintah Kawalan Pergerakan (PKP). Sekarang ni dah masuk Fasa ke-4 PKP dan masih banyak lagi perniagaan yang diarahkan tutup. Walaupun ada sedikit kelonggaran diberikan, bila lebih banyak sektor dibenarkan beroperasi, tapi sebahagian besar syarikat di Malaysia ni masih lagi belum dibenarkan beroperasi. Rentetan itu, mahu ataupun tidak – ia dah membawa kepada kehilangan punca pendapatan kepada syarikat-syarikat berkenaan. Tapi kerajaan tak la duduk diam je, pelbagai inisiatif dah perkenalkan untuk membantu aliran tunai syarikat-syarikat terjejas. Antaranya seperti bantuan PRIHATIN – subsidi upah perkerja. Namun, apa yang diperkenalkan tu mungkin tak cukup dan masih ada syarikat yang terpaksa juga memberhentikan pekerja mereka. Diberhentikan kerja ni memang benda yang menakutkan, lebih-lebih lagi susah nak dapatkan kerja baru masa PKP (atau lepas PKP) ni. Tapi nampaknya, korang boleh bertenang sikit bila tahu benda ni: kalau korang bekerja di sektor swasta, korang kemungkinan besar ada mendaftar dalam Sistem Insuran Pekerjaan (SIP) atau Employment Insurance System (EIS). Insurans ni bukan je akan bantu korang bertahan sampai dapat kerja baru, tapi juga akan bantu korang cari kerja. Dengar macam menarik kan? SIP lindungi perkerja yang diberhentikan kerja Sebenarnya, sebelum ni kami ada tulis pasal Sistem Insuran Pekerjaan (SIP) ni, dengan terangkan apa yang ia boleh buat. Kalau korang nak tahu gambaran umum tentang macam mana ia boleh tolong korang, boleh baca pautan di bawah ni. [BACA LAGI: Malaysia's new insurance system automatically deducts your salary but...for what?] SIP ni adalah skim atau sistem di bawah PERKESO yang dirangka untuk membantu pekerja-pekerja yang hilang pekerjaan. Di bawah skim ni, kalau korang hilang kerja, SIP akan sediakan faedah kewangan kepada korang berdasarkan gaji korang sebelum ni. Perkara ini disediakan di bawah Elaun Mencari Pekerjaan (EMP), di mana korang akan diberikan peratusan tertentu dari pendapatan sebelumnya, sampailah korang dapat kerja baru. Bukan tu je, skim ni juga akan bantu korang cari kerja baru, yang semestinya agak mencabar. Eh, skim ni korang dah daftar ke belum? Jangan risau, sebabnya kalau korang kerja di sektor swasta – korang selalunya memang dah mendaftar dengan skim ni. Kalau korang rasa tak pasti, korang boleh periksa slip gaji pada bahagian potongan bulanan tu. Bersama-sama dengan caruman KWSP dan PERKESO, ada satu lagi caruman iaitu ‘SIP Pekerja atau Employee EIS’. Inilah caruman korang kepada dana SIP. Caruman ni penting, sebab dana SIP ni berfungsi dengan potong peratusan gaji bulanan korang. Kalau korang rasa potongan gaji korang tu macam tak patut, baik korang fikirkan semula. Sebabnya, jumlah potongan untuk SIP ni sikit je iaitu sebanyak 0.2% dari gaji korang. Majikan juga kena bagi 0.2%, dari jumlah gaji korang. Maknanya, jumlah keseluruhan sebulan SIP ni cuma 0.4% dari gaji bulanan korang. Semua pekerja yang bekerja di sektor swasta berumur dari 18 ke 60 tahun dikehendaki menyumbang kepada dana insurans ni. Kadar carumannya pula dihadkan kepada RM4,000. Maksudnya, walaupun korang dapat gaji lebih RM4,000, korang cuma dikenakan caj 0.2% dari RM4,000 atau RM8. Untuk maklumat, SIP ni tak melindungi pekerja berumur 57 tahun ke atas yang tak pernah menyumbang kepada dana tu sebelum ni. Pekerja domestik, penjawat awam dan pekerja sendiri pun tak dilindungi di bawah SIP ni. Tapi, tu tak bermakna yang korang akan terus layak dapat faedah ni bila diberhentikan kerja. Sebabnya, korang kena... Periksa terlebih dulu, sama ada korang layak dapat SIP Sebelum kita pergi kepada jumlah faedah kewangan yang korang boleh dapat, lebih baik kita tengok dulu syarat yang diperlukan untuk korang terima faedah insurans ni. Seperti yang dah dikatakan tadi, pertamanya – korang mestilah pekerja sektor swasta dan buat caruman ke dalam SIP. Tapi bukan tu je, sebab punca korang hilang kerja tu pun sama penting bagi menentukan sama ada korang layak terima atau tak. Di bawah SIP, korang hanya boleh terima faedah ni, kalau korang hilang kerja disebabkan hal-hal berikut: Pembuangan kerja dan pertindihan Terima Skim Pemisahan Sukarela atau Bersama syarikat (VSS atau MSS) Penutupan tempat kerja kerana bencana alam Bankrap atau penutupan tempat kerja Pembuangan kerja konstruktif (syarikat korang langgar kontrak korang, sampai korang berhenti kerja) Peletakan jawatan disebabkan gangguan seksual atau ugutan di tempat kerja Peletakan jawatan apabila korang diarah melaksanakan kerja di luar skop yang membahayakan keselamatan Kalau korang hilang pekerjaan disebabkan perkara sebegini, korang layak terima faedah pengangguran. Tapi, ada situasi tertentu yang boleh membuatkan korang tak layak terima faedah SIP. Antaranya seperti: Dibuang kerja kerana salah laku Peletakan jawatan secara sukarela Bersara Tempoh kontrak perkhidmatan korang dah tamat Nampaklah di sini yang kalau korang layak, tak sia-sialah korang bayar 0.2% dari gaji tiap-tiap bulan tu. Tapi, kalau carumannya pun dah sikit, faedahnya nanti tu sikit juga ke? Sebenarnya, taklah macam tu sebab… Korang boleh dapat faedah pengangguran sehingga 80% daripada gaji korang Kalau korang hilang kerja dan memenuhi syarat yang diperuntukkan, korang layak terima faedah pengangguran di bawah SIP Elaun Mencari Pekerjaan (EMP). Namun, masih ada had untuk jumlah yang korang akan terima tu. Jumlah yang diberikan tu akan dihadkan pada gaji yang diandaikan sebanyak RM4,000. Jadinya, walaupun korang dapat gaji lebih daripada RM4,000, korang cuma boleh terima faedah dengan jumlah maksimum yang dibenarkan, iaitu RM4,000. Korang akan diberi elaun minimum selama 3 bulan dan maksimum selama 6 bulan. Jumlah yang diberikan tu adalah: Bulan pertama: 80% daripada gaji anggapan bulanan korang Bulan ke-2: 50% daripada gaji anggapan bulanan korang Bulan ke-3 & ke-4: 40% daripada gaji anggapan bulanan korang Bulan ke-5 & ke-6: 30% daripada gaji anggapan bulanan korang Jumlah ni akan dikira berdasarkan anggapan gaji bulanan korang, di mana berdasarkan gaji korang sebelum ni. Nampak macam mengelirukan juga – tapi takpe, ni contohnya. Katakanlah korang dapat gaji RM3,569 sebulan sebelum hilang kerja. Berdasarkan carta dari PERKESO, gaji bulanan anggapan korang adalah sebanyak RM3,550. Jadi, berdasarkan gaji itulah, jumlah faedah yang korang akan dapat setiap bulan: Bulan pertama: RM2,840 (80%) Bulan ke-2: RM1,775 (50%) bukan ke-3 & ke-4: RM1,420 (40%) Bulan ke-5 & ke-6: RM1,065 (30%) Tapi ada juga syarat tambahan untuk terus terima faedah ni. Sebaik saja korang dapat elaun bulan pertama, korang kena buktikan yang korang dah aktif mencari kerja baru, untuk dapatkan faedah untuk 2 ke 5 bulan berikutnya. Seterusnya, kita pergi ke bahagian paling penting iaitu macam mana nak mendaftar dan dapatkan faedah ni. Korang boleh mendaftar secara dalam talian Kalaulah korang diberhentikan kerja, korang bolehlah pergi ke laman sesawang PERKESO untuk mohon Elaun Mencari Pekerjaan (EMP). Tapi korang kena pastikan yang permohonan tu dibuat dalam tempoh 60 hari setelah hilang pekerjaan. Macam biasa, akan ada beberapa dokumen yang kena dibawa masa mendaftar. Maka, korang persiapkanlah: Salinan kad pengenalan Bukti kehilangan pekerjaan, contohnya surat penamatan kerja Salinan maklumat akaun bank Slip gaji untuk 6 bulan Lepas buat pendaftaran, korang akan diberitahu melalui e-mel sama ada permohonan korang tu diterima atau tak. Sebelum ni, kalau permohonan ditolak, korang boleh buat rayuan kepada Jemaah Rayuan Keselamatan Sosial (JRKS). Tapi disebabkan PKP, mungkin agak sukar untuk buat perkara tu. Makanya, kalau korang nak buat rayuan, korang boleh hubungi hotline PERKESO di 1-300-22-8000 atau e-mel kepada eis@perkeso.gov.my."
"M'sian landlords may not need to declare tax on rental income. Here's how it works Due to Covid-19, the past few months have been financially stressful for a lot of people. As many have lost their jobs and undergone massive pay cuts, the government has offered some help to make ends meet. Besides financial aid, the government has also allowed Malaysians to file their taxes a little later than the usual (the initial deadline this year was April). When the MCO first started, the Inland Revenue Board, better known as LHDN, announced that the deadline to file taxes had been extended by another 2 months—to June 30th 2020. [READ MORE: Here's 5 common tax filing mistakes made by Malaysian taxpayers] Besides your salary, you will also be taxed for other forms of income that you get. If you’re someone who gets an income from renting out your property, then this rental will also be included in your yearly taxable income. This has been stated in the law, and it can be found of Section 4 of the Income Tax Act 1967: Subject to this Act, the income upon which tax is chargeable under this Act is income in respect of— (d) rents, royalties or premiums; We’re not going to get into the nitty-gritty of how taxes work in this article, but if you’re a landlord, you probably already know that you need to declare your rental income to LHDN. Why? Because… Not declaring rental income is an offence There’s a whole list of types of income that you can be taxed for, and you can find them here. Most of us would know by now that evading tax is a crime and you can be in deep trouble for it. Section 113 of the Income Tax Act states: (1) Any person who— (a) makes an incorrect return by omitting or understating any income of which he is required by this Act to make a return on behalf of himself or another person; or (b) gives any incorrect information in relation to any matter affecting his own chargeability to tax or the chargeability to tax of any other person, shall...be guilty of an offence and shall, on conviction, be liable to a fine of not less than one thousand ringgit and not more than ten thousand ringgit and shall pay a special penalty of double the amount of tax which has been undercharged… Basically, if you don’t declare the accurate amount of income you’re receiving, you’ll be fined anywhere between RM1,000-RM10,000 AND pay double the amount of tax which you had failed to pay. The rest of the section is really long and we’ve not included it here, but it goes on to say that if you are found guilty of underpaying your taxes, you can also be made to pay a different penalty. According to the rest of the section, the Director General can also just ask you to pay the amount of the tax that you’ve failed to pay. In other words, it’s a slightly less heftier penalty. But...why are we talking about penalties? There may be this misconception that rental income is an investment instead of a taxable income. Because of this, many landlords have failed to include their rental income when submitting their tax forms. As we mentioned earlier, this is an offence. So if all this while, you weren’t aware that failing to declare your rental income is an offence, make sure to avoid getting in trouble this year. If you’re making losses, you don’t need to declare your rent So, you’re renting out your lovely condo in Bangsar and your tenant is paying his rent on time. But, over the last few months, you’ve had to get several repairs done to the house, and you realise that you’re spending more money than you earn from the rental. If this is the case with you and you’re actually not making any profit from your rental, then you don’t actually need to declare this as an income! This is just one scenario that we’ve given you, but we’ll explain further. Your taxable rent income is calculated on a net basis. In simpler words, it’s this equation: Monthly rent - permitted expenses = net rental income. Permitted expenses—such as repairs— are things that you need to spend on, like in the example we showed above. Other instances of permitted expenses would be insurance and quit rent/maintenance. So, to reiterate, only your net rental income will be taxed. If you had received RM24,000 as rental income in one year, but you spent RM26,000 on permitted expenses, this would be considered as a loss, and you won’t have to declare that RM24,000 as rental income for that year. But let’s say you did make a bit of profit… is there still some way you can get tax relief? If not a full exemption, you can still get other tax reliefs In 2018, the then Finance Minister announced this exemption as a way to get more people to rent out their homes at affordable rates. In order to get this 50% exemption, you needed to meet the following criteria: The property had to be a residential one (Sorry, office and mall space landlords!) You (the landlord) have to be a Malaysian and the property must be registered in your name The monthly rental that you receive must not be more than RM2,000. Take note that this discount can still apply if you have multiple properties, as long as the rent for each property is under RM2,000 There’s an actual legal tenancy agreement between you (the landlord) and your tenant. This agreement needs to be stamped by LHDN and it has to have taken effect on or after 1st January 2018. The property should have been rented anytime between 1st January 2018- 31st December 2018. However, while the initial proposal was to keep this exemption for 3 years (2018-2020), the plan was dropped and it was only allowed for 2018 tax claims. As unfortunate as this may sound, the government has announced other tax reliefs for 2020. For instance, landlords who reduce the rent for business premises by 30% or more during the Covid-19 pandemic would be eligible for additional tax deductions. For the full list of tax reliefs available for the year 2020, click here."
"5 regulations that have been relaxed during phase 4 of the MCO Believe it or not, we are now more than a month into the MCO. There have been biweekly extensions, with Muhyiddin foreshadowing that there will be another extension after the fourth phase. But Muhyiddin’s latest speech on May 1 was definitely a surprise for most Malaysians. During his Labour Day speech, he announced a relaxation of regulations, through the Conditional Movement Control Order (CMCO). Under the CMCO, almost all businesses in Malaysia were allowed to operate, as long as they abide by the standards of procedures (SOP) set down by the government. Not only that, people were actually allowed to go outside—and not just to buy necessities. We’re also to exercise and play non-contact sports like badminton, where the players maintain distance and don’t touch each other. But understandably, 5 states and potentially many more, have decided to not implement the CMCO, and continue with the original MCO. Still, whether your state is following the MCO or CMCO, there have been a few things that have been loosened slightly (though not fully loose, to roughly translate what Muhyiddin said). Let’s look at what are the changes now in Phase 4 of the MCO. 1. You can bring someone to teman you go shopping Previously, only one person per household was allowed to go out of the house to stock up on necessities. And even they had restrictions, as they were only allowed to travel within a 10km radius. There was some leeway to it, for example, if you were bringing your child to go and get vaccinated at a nearby hospital or clinic. [READ MORE: Malaysian parents can now take their children for vaccine shots during MCO ] This was changed in Phase 4, where you’re now allowed to go out in pairs. It was granted under the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No.4) Regulations 2020, which will be enforced until May 12. But this still had its own requirements: you’re only allowed to go out with a family member who stays in the same house, and only for necessities. The only exception is if you’re going to get medical treatment, and in that situation you’re allowed to go with anyone deemed necessary. Do note that the 10km distance limit is still enforced so you can’t go joyriding to the furthest possible kedai runcit. At first, Sabah and Sarawak did not apply the ruling immediately. However, both states eventually decided to adopt the ruling, so going out in pairs is now allowed nationwide. Update: The government has now allowed four people per car, as long as they’re all from the same household. 2. You can call your plumber and air con guy We know there are some of you out there have been dying to get some leaky pipes fixed during the MCO. And we don’t just mean that as an innuendo – previously tradesmen, especially independent repairmen weren’t allowed to operate during the MCO. Thankfully, the rules on this have been relaxed during phase 4 of this MCO. Now you can get your air-con repairmen as well as plumbers to do repair works in your house. The process is pretty simple, as you won’t need to sign up anywhere. You just need to provide the details of the contractors to your local police station. You would need to provide the name of the contractors, their contact details, and how many of them will be there for the repairs. And if you’re a tradesmen, do note that you don’t have to get MITI’s approval to start operating during the MCO. Previously, only contractors who were registered with the Construction Industry Development Board (CIDB) and have received approval from MITI were allowed to operate. However, Works Minister Fadillah Yusof recognised that many small-time contractors were not registered with CIDB. Works such as plumbing repair and servicing air-conds were also ‘too minor’ to require the registration and approval from MITI, saying that ‘There’s no need to go to MITI for such small works’. 3. Some sectors like construction can operate at full capacity During phase 3, the government has announced new sectors that are allowed to operate during the MCO. However, these sectors all came with restrictions. Most of them were only allowed to have at most 50% of their staff, with their operating hours restricted. Even then, they still needed approval from Miti (Ministry of International Trade and Industry) before they could even start. Starting from 29 April, all sectors that were approved to operate during the MCO, and were operating at half capacity, are now allowed to operate at full capacity. It doesn’t matter in which Phase you got the approval; as long as you have been approved to operate during the MCO, you are now allowed to operate at full capacity. However, if you’ve received an approval letter from Miti during Phase 1 or 2, you’re encouraged to reapply as you will be given a QR code starting from Phase 3. This QR code allows workers to easily get their permission letter checked by police at roadblocks. But that doesn’t mean you can operate the same way as before. There are strict guidelines on procedures that companies need to comply while operating. These include temperature measurement, safety equipment for workers, as well as routine disinfecting of common areas. Companies who don’t follow the guidelines stated in the SOPs will have their permits revoked immediately. And this could happen, simply because there will be taskforces who will conduct checks from time to time at the company’s premises. [READ MORE: More industries are allowed to open in phase 3 of MCO. Here’s what you need to know ] Do note that this is different than the announcement during the CMCO, which allowed all economic sectors to start operating. If your state has not adopted the new CMCO, and you did not get approval during any of the phases, you’re still not allowed to operate. 4. You can send your car for repairs If you’ve been youtubing how to fix minor issues in your car, you don’t have to worry about doing it anymore. Right now, you’re allowed to send your car for maintenance and repairs. It’s actually been allowed since Phase 3 of the MCO. However, you might have glossed over it when looking at the lengthy list of new sectors that are allowed to operate during that time. In the 17-page FAQ released by MITI, under the approved sectors listed in Appendix 1 on page 14, it’s stated that: Automotive industry (limited to exports of CBU, parts and components, as well as after-sale services, e.g., repair and maintenance) Right now, automotive industries are allowed to start manufacturing parts and components, as well as provide after-sale services. This means that your local workshop is now allowed to open and fix your car. Spare part suppliers are also allowed to operate. If you’ve noticed a part that said ‘limited to exports of CBU’, it just means that vehicle manufacturers can only build CBU (complete build-up) cars meant for export. It does not affect the manufacturing of spare parts, or the services related to it. 5. You can apply to travel between states Some of you may have returned to your hometown, hoping to spend time with your family during the MCO. However, most of you didn’t expect it to last for more than 2 weeks...or the 2 weeks after that. With some sectors opened up, some of you may need to return to the city to get back to your work. But it can be difficult as we aren’t allowed to travel between states. This restriction has been lifted now, and you can now apply for a permit to move across states. But this is only allowed for those who were stranded in their hometown and want to return to their work place. You are also allowed to do so if you were stranded away from your home during the MCO, and want to return back. To do that, you are required to apply for a permit through the Gerak Malaysia app. This app is available for both iOS and android phones. When signing up, you will need to supply your name, IC number, address and mobile number. Download link for iOS Download link for android The reason you would need the app is because of the location tracking. When you use it, you need to give the app permission to track your location. This way, there can be a location history of places you’ve been and people you met, in case you get infected by the virus. There is a time limit to your date of travel, so if you’re reading this...it might be too late. But in the future, you can always keep track by signing up for updates on Telegram from the Health Ministry and the National Security council. National Security Council telegram Health Ministry telegram Update: PDRM has released the allowed travel dates on their Facebook page. There is still time to sign up through the Gerak Malaysia app. However, if you don’t have a smart phone, you can download and print the form here. Travel dates: Returning from Kuala Lumpur – 7 May 2020 (Thursday) Returning from Perak, Johor and Kelantan – 8 May 2020 (Friday) Returning from Perlis, Kedah, Pulau Pinang, Melaka and Pahang – 9 May 2020 (Saturday) Returning from Selangor, Negeri Sembilan and Terengganu – 10 May (Sunday)"
"Malaysian parents can now take their children for vaccine shots during MCO  Most Malaysians have most likely adapted to staying at home now, since the MCO has been in effect for more than a month. This new reality we’re facing thankfully comes with some guidelines, which have been introduced subsequently by the government in every phase of the MCO. Since we’ve just entered Phase 4, there are some leeways introduced by the government which gives us ‘some’ freedom to move about—while still complying with the control order. Apart from being able to work at full capacity and go out to buy groceries in pairs, the Health DG announced that parents are actually allowed and encouraged to immunise (vaccinate) their children during the MCO period. Now the last thing anyone would want, is to spend a night in jail or pay a hefty fine for breaking the law set in the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) Regulations. So here’s what you can do to comply with the MCO and protect your child(ren) during the control order. There are certain SOPs you need to follow Unless there’s a medical emergency, you can’t simply take your child out on a joyride during the MCO. But circumstances such as immunisations are allowed, as long as you can prove it to the authorities. The Senior Principal Assistant Director at the Ministry of Health’s Family Health Development Division, suggests that parents make an appointment with the clinic before taking their child to one for their immunity shots. This can somewhat make the process fast and safe, especially during the COVID-19 pandemic. Now if you encounter a roadblock, ensure that you have your child’s immunisation record book to show the authorities the reason for your travels. This would act as proof as to why you’re out with your child during the MCO. Once you arrive at the clinic, there are medical SOPs the clinic needs to comply with for safety. This includes conducting a general screening on the parent and child. Medical staff are required to conduct a temperature check and ask questions about travel history and flu-symptoms to the parent(s) of the child. This is normally done before you’re allowed to enter the clinic with your child. If you and your spouse happen to take your child together to the clinic, take note that only one parent is allowed to accompany the child for his/her immunisation shot. As much as you’d want to avoid leaving your house at all costs, it is still important to follow up with you child’s immunisation check-ups to prevent other diseases from becoming widespread. The Chairman of Immunise4life stressed on getting children immunised despite the COVID-19 pandemic, as other diseases also pose a threat. Here’s how he put it: “The World Health Organisation (WHO) has recently issued a statement warning that disruption to routine immunisation activities, even for a short period of time, will raise the likelihood of outbreak-prone vaccine preventable diseases. These include measles, diphtheria, pertussis and so on.” – Datuk Dr Zulkifli, Chairman of Immunise4life. Malaysia encountered an outbreak of polio in Sabah, which is pretty much a comeback for the virus 27 years later. In order to avoid preventable diseases like this from happening again, MOH has decided to continue giving routine immunisation services during the MCO and COVID-19 pandemic. But what if you cannot take your child for his immunisation shots, can you be fined or jailed for that instead? There are no laws to immunise children Malaysia does not have any legislations on mandatory vaccinations for children. So, parents can actually refuse to have their children vaccinated, with no legal action taken against them. However, there may be other parts of the law that can make this illegal. Section 31 of the Child Act 2001 states: “Any person who...having the care of a child— (a) abuses, neglects, abandons or exposes the child in a manner likely to cause him physical or emotional injury or causes...him to be...neglected, abandoned or exposed...commits an offence and shall on conviction be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding ten years or to both.” So if you’re responsible for the child, and expose him to eminent danger—you can be fined up to RM20,000, imprisoned up to 10 years or both. However, there have been arguments that this is quite far-fetched, since the Act doesn’t specify vaccinations and no cases has been brought to court so far. [READ MORE: Malaysian parents can be sued for refusing to vaccinate their children. Here's why] But nevertheless, parents have the responsibility to care for the well-being of their children—which includes the health of the child. The Ministry of Health (MOH) also introduced the National Immunisation Programme to help us understand how immunisation works during the pandemic. Immunisation shots are available at all government clinics Children can receive up to 12 immunisation shots for free via the National Immunisation Programme (NIP). The immunisation shots are given at all government clinics at no cost, while private clinics may charge a fee. Parents who want their children to receive additional vaccines need to pay a certain fee at both private and government clinics. To make parents’ lives easier, MOH also introduced an immunity schedule/chart for as to when children will need to get their shots. The schedule lists down the 12 diseases that children can get immunisation shots, for free. Now if you’re worried about taking your child to government clinics during the COVID-19 pandemic, you should know that not all clinics are testing for COVID-19. You can find about which clinic does tests here, if you’re worried about the virus. However, the Health Ministry has ensured that precautionary measures are taken in order to prevent the widespread of COVID-19 among patients who come to government clinics."
"Boleh ke syarikat penerbangan tak nak bagi 'refund' sebab korang batalkan penerbangan?  [Click here for English version] Mahu atau pun tidak, kita semua kena terima hakikat yang dunia sekarang berdepan dengan ancaman wabak Covid-19. Dianggarkan lebih 2 juta penduduk dunia dah dijangkiti wabak ini, dengan 185 negara terkesan secara langsung dan terpaksa melaksanakan perintah berkurung. Ini bermakna, buat masa sekarang – orang dah tak dapat lagi melancong antara negara atau dalam negara sekalipun. Sekaligus, ia membuatkan sesiapa yang merancang perjalanan pada musim ni terpaksa membatalkannya, termasuk juga yang dah beli tiket penerbangan. Dalam masa sama, syarikat penerbangan dah menerima ribuan permintaan pembatalan penerbangan buat masa ni, sehingga ada syarikat yang memilih untuk buat bayaran balik (refund) kepada pelanggan mereka dengan kaedah lain selain tunai untuk mengurangkan kerugian. Antaranya termasuk memberikan baucar dan credit notes, di mana pelanggan akan dibayar balik dengan dengan baucar atau credit notes yang unik. Tapi ia hanya boleh digunakan untuk membeli tiket di syarikat penerbangan sama. Dengan kata lain, mereka tak boleh tukarkannya dengan wang dan gunakannya untuk benda lain. Dengan cara ni, pembayaran pelanggan tu tetap akan disimpan dalam syarikat penerbangan dan tak akan ada aliran keluar tunai yang besar. Sebenarnya, tak salah untuk syarikat penerbangan gunakan kaedah bayaran balik lain macam ni, tapi boleh ke mereka paksa korang terima baucar atau credit notes dan bukannya duit masa ancaman Covid-19 ni? Jawapan mudah: YA, mereka boleh Sebenarnya, hal ni berlaku di serata dunia, tapi lebih baik untuk kita fokus pada syarikat penerbangan Malaysia je. Dengan pertambahan orang yang tak ada pilihan lain melainkan dengan membatalkan penerbangan masing-masing sejak beberapa minggu lepas. Persatuan Ejen-Ejen Pelancongan dan Pengembaraan Malaysia (MATTA) ada menyuarakan pandangan mereka terhadap isu ini. Mereka menggesa syarikat penerbangan memberikan bayaran balik tunai kepada para pelanggan kerana kalau pelanggan cuma terima credit notes, notes tu tak boleh digunakan sekiranya syarikat penerbangan tu ditutup nanti. “...Mereka perlu membuat bayaran balik tunai terlebih dahulu bagi mengekalkan keyakinan rakyat dan ia adalah perkara utama untuk memulangkan bayaran daripada pelanggan bagi perkhidmatan yang tidak diberikan akibat keadaan semasa.” - Shazli Affuat Ghazali, Naib Presiden MATTA bagi penerbangan udara Mereka juga minta Suruhanjaya Penerbangan Malaysia (MAVCOM) untuk keluarkan kenyataan dalam masalah ni, supaya sekurang-kurangnya ada peraturan yang lebih tetap dan kena diikuti oleh syarikat penerbangan. Tak lama lepas tu, MAVCOM pun berikan maklum balas dengan kata – mereka akan beri beberapa kelonggaran kepada syarikat penerbangan dan biarkan mereka buat keputusan tentang macam bayaran balik tu akan dibuat kepada pelanggan. Mereka juga kata akan bagi syarikat penerbangan lebih masa untuk memproses bayaran balik, disebabkan terlalu banyak permintaan ketika ini. “Suruhanjaya juga menggalakkan pengguna untuk merujuk kepada laman web syarikat penerbangan masing-masing untuk memastikan terma-terma yang terpakai untuk permintaan pembayaran balik. Walaubagaimanapun, syarikat penerbangan boleh menggunakan budi bicara komersil masing-masing, sama ada untuk melonggarkan syarat-syarat tiket semasa pembelian bagi memanfaatkan pengguna.” - MAVCOM Jadinya dengan kata lain, syarikat penerbangan kena buat pembayaran balik kepada korang berdasarkan polisi pembayaran balik tiket korang tu. Tapi, jika perlu bertentangan dengan polisi itu - hal ni bermakna yang mereka boleh bagi korang credit notes dan mereka ada hak untuk melakukannya. MAVCOM kata keputusan ni dibuat kerana: keadaan ni jarang berlaku dan ia bukan kesalahan syarikat penerbangan ataupun pelanggan syarikat penerbangan perlu buat apa sahaja yang mungkin untuk mengelakkan syarikat dari ditutup - memberikan bayaran balik secara bukan tunai untuk mengurangkan kerugian akan menjadi salah satu cara Kami juga ada hubungi MAVCOM untuk periksa sama ada suruhanjaya tu ada buat kemas kini terhadap keputusan ni, tapi nampaknya mereka kata ia masih lagi sama. Bagaimanapun, mereka ada kata yang kepentingan pelanggan kena dilindungi setiap masa. Syarikat penerbangan masih lagi diharapkan dapat menyelesaikan setiap permintaan pembayaran balik dengan cara yang terbaik. Sekiranya ada pilihan yang lebih baik untuk mengembalikan wang pelanggan selain daripada credit notes, syarikat penerbangan kena melakukannya. Hubungi syarikat penerbangan untuk lihat apa lagi yang mereka dapat bantu Walaupun nampak macam tak berapa baik, tapi inti utamanya adalah: Cara pembayaran balik ni sebenarnya bergantung kepada polisi pembayaran balik syarikat penerbangan atau polisi baru yang diamalkan oleh syarikat penerbangan pada masa-masa yang sukar macam ni. Korang mungkin pernah dengar atau baca yang ada beberapa syarikat pernerbangan: bersedia buat pembayaran balik tunai sepenuhnya menawarkan beberapa pilihan bayaran balik batalkan pembayaran balik tunai sepenuhnya dan minta pelanggan untuk terima kaedah pembayaran balik secara bukan tunai Kalau syarikat penerbangan korang tawarkan credit note tapi korang tak nak terimanya, hubungilah mereka untuk tahu apa lagi kaedah pembayaran balik yang bersesuai dengan kehendak korang. Korang juga boleh bertimbangkan untuk buat aduan kepada pihak berkuasa lebih tinggi seperti MAVCOM kalau syarikat penerbangan tak nak bagi bayaran balik dalam tunai. Bila kami tanya mereka pasal ni, mereka beritahu kami supaya buat dulu aduan kepada syarikat penerbangan untuk tengok apa yang boleh diselesaikan secara dalaman. Cuma kalau syarikat penerbangan korang tu tak ikut polisinya sendiri dan menyalahgunakan kuasanya, korang bolehlah buat aduan kepada MAVCOM. Keadaannya berbeza, kalau ia bukan kecemasan global Perlu diingat yang kalau dalam keadaan lain, perkara ni dah pasti akan diselesaikan dengan cara berbeza. Kalau tak ada wabak dan tak ada ribuan orang yang membatalkan penerbangan pada masa yang sama, syarikat penerbangan dah semestinya tak boleh sebut pasal masalah kewangan sebagai alasan untuk tak nak bagi duit kepada korang. Dalam keadaan macam ni, syarikat penerbangan selalunya akan bagi pembayaran balik tunai sepenuhnya. Tapi seperti mana yang kita selalu diingatkan – sangat-sangat penting untuk korang periksa terma dan syarat pada tiket penerbangan sebelum buat pembelian. Sebabnya, dengan tahu dan faham, kemungkinan ia akan membantu korang mendapatkan duit korang balik."
"Here's why Msian companies can still cancel your job contract AFTER you sign it Note: This article was originally written in April 2020. You’ve been job-searching for months and attended more interviews than you can count. Finally, you get a call from your dream company telling you that you’ve been selected to join them. Elated, you make your way to their office the very next day to sign your offer letter. Everything goes well and you’re all set to join the company in a few weeks’ time. But three days later, you receive a call from the company telling you that they can’t hire you for now due to financial difficulties. You’re sad and shocked, and you’re not sure if there’s anything you can do about it. At the time of the writing, we’re in the midst of the Covid-19 pandemic and Malaysians are under the MCO. Due to financial strains, we’ve heard of companies retrenching staff and withdrawing offer letters— even ones that were signed even before the MCO started. But Covid-19 and MCO aside, employers have also withdrawn offer letters in times where there wasn’t a global emergency. Before we talk about the law on this and whether it’s any different during a pandemic, here’s something you should know... There CAN be a difference between offer letters and employment contracts This may be confusing to you at first, but we’ll illustrate it for you: Scenario A: The company tells you you’ve been hired. They send you an offer letter to confirm this. The letter only tells you your position and starting date. It says that an official employment contract with the complete terms and conditions will be given to you later. Scenario B: The company tells you you’ve been hired. They ask you to come in to sign an official agreement which lists all the terms and conditions pertaining to your employment. You sign it. Now, in Scenario A, the company is informing you in black and white that you have been hired, and that an official agreement will follow. But in Scenario B, you are asked to sign a contract immediately, and this would mark the start of a legal/contractual relationship between you and the company. You are now bound by the terms and conditions in the contract, and so is the company. The bottom line is this: Until you AND the company have officially agreed to being legally bound by a set of terms and conditions, there isn’t really anything that can stop either party from going back on their word. This is why it’s also possible for you to say no a job offer that you previously agreed to, until you officially enter an employment contract. [READ MORE: Can a company sue me in Malaysia if I turn them down after signing the letter offer?] But let’s say that you DID sign a contract with all the terms and conditions. While it may seem like the company has to hire you no matter what… it may not be the case. It depends on how your contract is worded Besides your main duties as an employee and your employer’s obligations to you, your employment contract will also cover some other stuff such as: your notice period pay cuts that are made to funds such as EPF and SOSCO what happens if the contract has to be ‘ended’—neither you nor the company will be bound by the contract anymore for various reasons If your contract comes with a particular clause which allows you or the employer to ‘end’ the contract, your company can withdraw the offer even before you join. Usually, this will come with another ‘compensation’ clause—that the company would need to pay you for terminating your contract. If your contract did have a clause like this but you weren’t compensated, you have a cause of action against the company. But, what if there isn’t such a clause in the contract but your offer was still terminated? There’s actually a legal principle which your company may have relied on to bring your contract to an end, and this is known as the doctrine of frustration. However, this principle doesn’t mean that they can revoke an offer however they like. There has to be an unforeseen event that was beyond their control which has led to them withdrawing your job offer. Some instances would be that the company has gone into liquidation, or the company has gone through a massive restructuring and there’s no need for your role anymore. We’ll explain this in detail below, but now the question is, can this doctrine apply to situations such as the current Covid-19 pandemic? Employment contracts can be ‘frustrated’ due to Covid-19 We know that Covid-19 is an unforeseen event. But what does a company need to prove if they decide to use frustration as a reason to withdraw a job offer during this time? There have been no court cases regarding employment contracts being cancelled due to Covid-19 yet, so we’ll look an older employment case to shed some light on the matter: In the case of MHS Aviation Sdn Bhd v Zainol Akmar Mohd Noor [2001], the judge in the Industrial Court quoted this from a book known as “Industrial Relations and Employment by Harvey”: “One instance of termination by operation of law is the doctrine of frustration: where, without the fault of either party, some supervening event occurs which was not reasonably foreseeable at the time when the contract was made and which renders the further performance of the contract either totally impossible or something radically different from what the parties bargained for, then the contract is forthwith discharged by operation of law.” From the quote, it can be seen that to rely on frustration, the party trying to claim this (the company, in this case) has to prove these elements: neither party caused the frustration deliberately this unforeseen event could not have been predicted when the [employment] contract was signed it is not possible for this contract to be continued/ the nature of the contract has changed—financial difficulty, death, war, plague etc. It’s important to note that frustration can be used as a defence to withdraw an employment contract for both Covid-19 and non-Covid-19 situations. It may be easier to prove frustration during Covid-19, especially since many companies have been affected financially. But this does not mean that companies cannot withdraw employment contracts once Covid-19 or the MCO is over— they only need to successfully prove the elements of frustration. You can still take your case to court So, let’s say that you’re not buying the company’s excuse of your contract being frustrated due to Covid-19 or some other reason. You still have the right to file a claim in the Industrial Court. The outcome of course, depends on the merits of the case—but you still have the right to be heard. However, you won’t be able to file a claim until the MCO is over as the Industrial Court remains closed until then. It’s also crucial to be aware of what exactly you’re agreeing to when signing an employment contract. Make sure to look out for any frustration clauses in it so that you would have a heads-up if things were to go bad due to an unforeseen event. [READ MORE: 5 things about employment contracts that every Malaysian gets wrong]"
"M'sian workers who are fired can now claim unemployment benefits. Here’s how [Klik sini untuk versi BM] Since the Movement Control Order (MCO) started, nearly 30,000 companies have shut down, while some companies were forced to downsize due to loss of income. The government tried to help companies with cash flow issues, through financial aids such as PRIHATIN that subsidises employee wages. But that might not be enough, and some companies might be forced to lay off their workers. The thought of being laid off can be scary, because it can be hard to find another job during the MCO. However, if you’re laid off during the MCO, you don’t have to panic right away. If you’re working in the private sector, you’re probably already signed up for the Employment Insurance Scheme (EIS). This insurance will not only help you stay afloat until you find a new job, it will also help you find a job. So what is it exactly? The EIS protects employees who are laid off We’ve written about the Employment Insurance Scheme (EIS) before that explains what they do. But if you just want a general overview of how they can help you, just keep on reading below. [READ MORE: Malaysia's new insurance system automatically deducts your salary but...for what?] The EIS, a scheme under Socso, is designed to help workers who have lost their jobs. Under this scheme, if you lost your job, EIS will provide you with financial benefits depending on your previous salary. This is provided under the Job Search Allowance (JSA), where you will be given a certain percentage of your previous income, until you find a new job. But that’s not all, as they will also help you in finding a new job, which can be a really challenging task during these times. Wait, but what if you don’t remember signing up for it? Don’t worry. If you’re working in the private sector, chances are you’re already signed up for it. If you’re not sure, check your payslip for the monthly deductions you’re supposed to contribute. Together with your EPF and Socso contributions, there should be one that says ‘Employee EIS’. This would be your contribution to the EIS fund. That contribution is important, because the EIS fund works by deducting a percentage of your monthly salary. In case you have retrospective anger at your cash taken away, think again. The contribution is a very miniscule amount: 0.2% of your salary. Your employer would also be expected to match that 0.2%, so the total amount paid is 0.4% of your monthly salary. All employees working in the private sector, aged between 18-60 years old are required to contribute to the insurance fund. The contribution rate is capped at RM4,000. So even if you earn above RM4,000, you’ll only be charged 0.2% of RM4,000, or RM8. Do note that the EIS does not cover workers above the age of 57 who have never contributed to the fund. Domestic workers, civil servants and the self-employed are also not covered under the EIS. But just losing your job doesn’t necessarily mean you qualify for these benefits. So make sure that you... Check first if you qualify for the EIS But before we go into the amount of financial benefits you receive, let’s look at the requirements needed for you to receive the insurance benefits. As mentioned, you must be a worker in the private sector, and have been contributing to the EIS fund. But that’s not all. The reason you lost your job is equally important to determine if qualify for it. Under EIS, you’re only allowed to receive benefits if you lost your job due to these reasons: Normal retrenchment and redundancy You accepted your company’s Voluntary or Mutual Separation Scheme (VSS or MSS) Your company closed down due to natural disasters Your company went bankrupt or closed down Constructive dismissal (your company breached your contract so you quit your job) You resigned due to sexual harassment or was threatened at your workplace You resigned because you were ordered to do something dangerous that isn’t in your job scope If you lost your job due to these reasons, then you’re eligible to receive unemployment benefits. But there are certain situations where you will not be eligible for the EIS unemployment benefits. These are: You’re fired due to a misconduct You resigned voluntarily You retired Your contract expired Okay, now that you know if you’re eligible, you must be glad you paid your 0.2% now. But since the amount is tiny, surely the payout is tiny too? Well, not really because… You can get up to 80% of your salary in unemployment benefits If you lost your job, and it falls under one of the acceptable reasons for it to happen, you are eligible to receive the unemployment benefits under EIS’s Job Search Allowance (JSA). But there are still limitations to the amount you will receive. The amount given will be capped at an assumed salary of RM4,000. So even if you earn more than RM4,000, you can only receive benefits for the maximum amount allowed, which is RM4,000. You will be given an allowance for a minimum of 3 months, and a maximum of 6 months. The amount given is: 1st month: 80% of your assumed salary 2nd month: 50% of your assumed salary 3rd & 4th month: 40% of your assumed salary 5th & 6th month: 30% of your assumed salary This amount will be calculated based on your assumed salary, which is based on your previous salary. If that sounds confusing, let’s give an example. Suppose you earned RM3,569 per month before losing your job. Based on this chart from Socso, your assumed salary will be listed as RM3,550. So based on that salary, the amount you will be given per month is: 1st month: RM2,840 (80%) 2nd month: RM1,775 (50%) 3rd & 4th month: RM1,420 (40%) 5th and 6th month: RM1,065 (30%) But there is also an added requirement to continue receiving the payment. Once you’ve received the first month’s allowance, you are required to prove that you’ve been actively searching for a job, in order to receive the next 2-5 months of benefits. Now that we know how to be eligible, and how much you can get, let’s go to the most important part: how to sign up for it. You can sign up for it online In case you were laid off, you can head to Socso’s website here to apply for the Job Search Allowance (JSA). But you have to make sure that you apply within 60 days of losing your job. As usual, there will be some documents to bring when signing up for it. So get these items ready: Your IC Proof of loss of employment (eg. termination letter) A copy of your bank account information Your payslip for the last 6 months After signing up, you’ll be notified through email if your application was accepted. Previously, if you were rejected, you could make an appeal to the Socso board. However, due to the CMCO, it might not be open right now. So if you’d like to make an appeal, you can contact Socso’s hotline at 1-300-22-8000, or email them at eis@perkeso.gov.my."
"5 regulations Malaysian companies DON'T have to follow during the MCO As we approach the end of Phase 3 of the MCO—and begin Phase 4, some of us might be anticipating to get back to our daily routine—while others might have already started working after the government announced some leeway for companies. We previously wrote about the new regulations certain industries must follow, if they’re allowed to operate during the MCO. [READ MORE: More industries are allowed to open in Phase 3 of MCO. Here’s what you need to know] Whether you’re part of the service sector that’s allowed to operate during Phase 3 or not, you don’t have to worry about having certain meetings or submitting documents to the Companies Commission of Malaysia (CCM) aka SSM in Bahasa Malaysia. CCM introduced several reliefs to help companies stay afloat during the COVID-19 pandemic. Now here are the main ones: 1. Companies have until June to pay outstanding fines CCM announced that they’ll be extending their “2020 Compliance Campaign of the Companies Act 2016” until 30th June 2020. This campaign was initially proposed to reduce the original fine rate imposed against companies—up to 90%. Some of the offences that will be discounted through this campaign include, the company’s failure to lodge their statement of accounts, hold general meetings or file their annual returns. But here’s something Malaysian companies must take note—not all companies are eligible for the reduced compound rates. In fact, CCM announced 3 situations where a company or its directors can be eligible to receive discounts on fines: If an ongoing (active) company updates the filing of their Annual Reports and Financial Statements as stated under the Companies Act 1965/2016. If an dormant (inactive) company has already applied to be striked-off from the registrar, as stated under the Companies Act 2016. The company secretary has already provided a written notice for the failure to provide feedback to CCM, as stated under the Companies Act 1965. The campaign was initially intended to run until 30th April 2020, but an extension has been given since most companies have ceased to operate during the MCO and the CCM counters aren’t open during this period. Now if you’re not sure about the status of any pending fines you’ve received from CCM, you can only check on this after the MCO ends—as CCM made an updated announcement recently. [READ MORE: Msians can work during the MCO despite not being in an essential service. Here's how] 2. Companies are given 3 months to file their accounts Apart from not giving fines, CCM also extended the time limit for companies to lodge their statement of accounts. Companies can now submit their account statements within 3 months post-MCO. Now if you’re wondering when companies are normally required to submit their statement of accounts, Section 259 of the Companies Act 2016 explains this: “A company shall lodge with the Registrar for each financial year the financial statements and reports required under this Act— a) in the case of a private company, within 30 days from the financial statements and reports are circulated to its members under Section 258’ b) in the case of a public company, within 30 days from its annual general meeting...” In other words, both private and public companies only have approximately 1 month to submit their financial statements to the authorities. Not doing so will carry a fine up to RM50,000—and if it’s a continuing offence, the company will be fined up to RM1,000 for each additional day. Which is why the 3 months extension would somehow be a great relief for companies during the MCO. However, the company must apply for a time extension and email CCM before 30th June 2020 to be granted this extension. This extension also applies only to companies with a financial year-end from September 2019 to up November 2019. 3. Companies have 30 days to submit statutory documents As we mentioned earlier, since most companies may not be able to submit important documents during this period, CCM is granting a 30-day moratorium from the last day of the MCO (fingers crossed it’s next Tuesday) —Update: Phase 4 will begin on the 29th April. This moratorium applies for statutory documents such as the submission of annual returns, updates on shareholder information and updating the business address of the company. You can read here to know about the other statutory documents that fall under the moratorium. Now, this is also in line with the “no fines” rule that CCM came up with, for companies that fail to submit documents before the deadlines. However, there are still some payments and documents that can be submitted online through some of CCM’s platforms such as MyData and EzBiz—you can check them out here. The moratorium is also automatically applicable for all companies, so you don’t have to apply for it or worry about being fined for late submissions. 4. Companies are temporarily protected from closing down With many companies affected by the MCO and the COVID-19 pandemic, some have already opted to close down due to massive losses. In order to avoid more businesses from doing so, CCM announced that they’ve re-defined what a company’s inability to pay debts is. So, only companies that owe more than RM50,000 instead of the previous RM10,000 are considered unable to pay debts. In other words, this now means that creditors (people the company owes money to) can only make a winding-up petition against a company—if the debt owed by the company is more that RM50,000. Companies also get additional protection, where they don’t have to respond to any winding-up actions within the 21-days—which is stated in the Act. Now, companies that are unable to pay their debts have an extended period to respond to any winding-up action up to 6 months. This helps companies restructure and stabilise their finances and can avoid facing legal action in court. CCM is expecting at least 1,500 companies to benefit from this initiative within the 6 months proposed period. 5. Directors can hold meetings later than planned With more companies and corporations adapting to the “Work from Home” (WFH) approach, AGMs and other general meetings too are being conducted virtually, online. Now Section 340(2) of Companies Act 2016 states that every public company must have their AGM within 6 months from its financial year end, and not later than 15 months from its last AGM. However, for big public corporations with thousands of shareholders and members, this might not be the easiest task to carry out. Therefore, CCM has granted a 3-month extension for AGMs to be held, after the end of MCO. Companies that want the extension must apply for it and will not be fined the RM100 fee during this period. CCM has also given guidelines on how to apply for the extension which you can find here. All applications must be made before 30th June 2020. With the percentage of new COVID-19 cases showing a downward trend, perhaps we might be able to go back to our daily routines very soon. But in the meantime, take note of these reliefs available to make your lives easier during the MCO period."
"Boleh ke pihak berkuasa paksa korang buat ujian saringan wabak? [Click here for English version] Ketua Pengarah Kesihatan, Datuk Dr Noor Hisham pada awal April lepas ada mengatakan yang ujian saringan COVID-19 akan dipertingkatkan di seluruh negara. Sehingga artikel ni ditulis, pihaknya dah mula menjalankan sekitar 3000 sampel ujian sehari di 18 buah hospital. Tapi, disebabkan peningkatan kes – maka usaha untuk mengesannya mula dipergiatkan lagi apabila Kementerian Kesihatan merancang untuk meningkatkan kapasiti ujian sehingga 16,500 orang sehari. Kebanyakan ujian ni dibuat terhadap mereka yang bergejala atau dah berhubung rapat dengan seseorang yang dah diuji positif COVID-19. Bagaimanapun, hal ni juga menimbulkan persoalan sama ada boleh ke pihak berkuasa paksa kita atau seseorang yang kita kenal buat ujian virus ni? Walaupun mungkin seseorang tu tak ada sebarang gejala atau tak pernah berhubung rapat dengan orang dah disahkan positif COVID-19. Selalunya pilihan tu terletak di tangan korang sendiri. Tapi, bila ia melibatkan pandemik global… Pesakit selalunya buat keputusan, tapi tidak dalam kes begini Untuk menjawab persoalan ni, kita kena tengok pada undang-undang kes UK dari tahun 1993. Dalam kes Airedale NHS Trust v Bland, mahkamah ada kata yang pesakit boleh buat keputusan sendiri bila ia melibatkan sesuatu yang melibatkan kesihatan mereka. Pada asasnya, pesakit ada hak untuk menolak rawatan atau ujian, dan ia mestilah dihormati, berdasarkan kepentingan mereka. Akan tetapi, dalam situasi macam ni – bila peningkatan kes pandemik global ni berlaku secara berterusan dan mengorbankan nyawa manusia setiap hari, prinsip yang diamalkan dalam kes UK tu tak boleh digunapakai lagi. Sebabnya, COVID-19 ni dah jadi ancaman kesihatan kepada masyarakat, dan ia bertentangan dengan undang-undang kita yang nak membendungnya dari terus menular. Seksyen 12, Akta Pencegahan dan Pengawalan Penyakit Berjangkit 1988 menyatakan: “Tiada seorang pun yang tahu atau mempunyai sebab untuk percaya bahawa dia menghidap sesuatu penyakit berjangkit boleh mendedahkan orang lain kepada risiko jangkitan melalui kehadiran atau kelakuannya di mana-mana tempat awam atau mana-mana tempat lain yang digunakan bersama-sama oleh orang selain anggota keluarga atau rumahnya sendiri.” Jadinya, kalau seseorang tu dah tahu yang dia ada virus, tapi masih lagi mendedahkan risiko kepada orang lain dengan pergi ke tempat awam misalnya – dia boleh didenda, dipenjara sehingga 2 tahun atau kedua-dua jika sabit kesalahan. Disebabkan itulah pihak berkuasa boleh jalankan tugas mereka. Pihak berkuasa boleh paksa korang buat ujian saringan Baru-baru ni, Ketua Pengarah Kesihatan ada buat kenyataan tentang 69 kes sporadik (jangkitan yang tak diramalkan) dah direkodkam dalam negara. Ini bermakna, asal usul jangkitan kepada mereka tu tak dapat diketahui dari mana. Dalam keadaan yang membimbangkan ni, maka salah satu cara nak mengawalnya adalah dengan buat ujian saringan kepada orang ramai, walaupun melalui cara paksa. Memandangkan Akta dah pun menetapkan menyebarkan virus sebagai satu kesalahan, makanya pihak berkuasa boleh paksa seseorang tu menjalani ujian saringan untuk kesan COVID-19. Seksyen 11(3), Akta Pencegahan dan Pengawalan Penyakit Berjangkit 1988 menyatakan: “...sah di sisi undang-undang bagi mana-mana pegawai diberi kuasa mengarahkan supaya mana-mana orang yang tinggal di dalam sesuatu kawasan tempatan jangkitan atau di dalam mana-mana bahagian… (b) diasingkan, diperhatikan atau diawasi selama tempoh yang ditetapkan mengikut hal keadaan; atau (c) dikenakan apa-apa langkah lain sebagaimana yang difikirkan perlu oleh pegawai diberi kuasa untuk mengawal penyakit itu. (4) Adalah sah bagi seseorang pegawai diberi kuasa menggunakan kekerasan, dengan bantuan atau tanpa bantuan, yang perlu dan menggunakan apa-apa cara yang mencukupi untuk memastikan bahawa apa-apa arahan yang dikeluarkan di bawah subseksyen (3) dipatuhi. Akta ni pada asasnya menyatakan yang pihak berkuasa ada hak undang-undang untuk menggunakan paksaan (mahupun kekerasan) kepada sesiapa yang tak patuh dengan langkah-lagkah yang mereka anggap perlu. Jadi, kalau korang disyaki ada virus, tak kisahlah kalau korang ada hubungan rapat orang yang dah disahkan, atau korang berada di zon merah, pihak berkuasa boleh paksa korang buat ujian saringan. Untuk maklumat, istilah “pegawai diberi kuasa” dalam keadaan ni adalah pegawai perubatan (macam doktor), pegawai kesihatan dan pihak-pihak berkuasa lain yang difikirkan sesuai oleh Menteri. Dengan itu, pihak berkuasa berhak untuk buat siasatan dan paksa seseorang tu buat ujian saringan – selagi mana Menteri Kesihatan bagi kebenaran untuk mereka buat sebegitu. Oleh itu, kalau korang rasa korang tak dijangkiti virus, tapi pihak berkuasa syak korang dan nak korang buat ujian saringan – jalan terbaiknya adalah korang berikan saja kerjasama dan buat pemeriksaan, dari kena denda atau penjara."
"If you lost your job during the MCO, here's what you need to know The whole world is currently panicking due to the Covid-19 pandemic. As this virus has spread all over the world and forced many countries to go into lockdown, national economies have been suffering and may suffer for months to come. As a result, many employers have had to let some of their staff go in order to keep their company afloat. This has also affected Malaysians, and we’ve seen some of our readers sharing their plight in our article comments as well. Now, we know that people can get fired for various reasons, but we’re going to specifically talk about being retrenched due to your company’s financial losses during Covid-19. So, if you’ve been asked to leave because the company isn’t doing too well at this point, here’s what you need to know. It’s not illegal to retrench staff Losing a job is a painful and scary experience, even more so during a time such as this. If this has happened to you, the first thing you may want to do is to get some sort of remedy under the law. But before you decide to take any action against your employer, you should know that companies ARE allowed to let go off their staff in difficult times such as this. Just before the Movement Control Order started, the Human Resource Ministry released a set of guidelines for employers to follow during Covid-19. These guidelines are frequently updated and you will be able to find the latest version on the Ministry’s Facebook page. In all versions of these guidelines, it was mentioned that employers who are retrenching their staff need to follow a few steps if they are doing so due to financial difficulties: Employers will need to ensure that all the criteria for retrenchment (which can be found here) are followed Employers will need to fill up a Borang Pemberhentian and file this with the nearest Jabatan Tenaga Kerja or Human Resource Ministry branch (This requirement is also needed for issuing paycuts) This report will need to be filed 30 days before you are retrenched. In other words, you’ll need to have sufficient notice that you’re being terminated So, laying off staff when it can’t be helped isn’t wrong it itself, but it has to be done with the right procedure. Failing to do so, or even firing you without a good reason can make them RM10,000 poorer for EACH staff that is fired. This is in accordance with Section 99A of the Employment Act 1955. Your company can’t fire you if they’re receiving government aid On 27th March 2020, the Prime Minister announced an economic stimulus package known as PRIHATIN, to help Malaysians cope financially during Covid-19. The package provides financial aid for various groups of Malaysians, but one of it is the subsidization of a portion of employees’ salaries. In other words, the government is ‘paying’ for each employee to be retained in the company. This way, the company would not need to cut salaries or even retrench anyone for as long as the payments were made. The government said that it would pay RM600 monthly per employee for 3 months, but this would only apply to: employees earning less than RM4,000 or companies that have made a loss of 50% or more since 1st January 2020 Then on 6th April 2020, the Prime Minister announced an additional stimulus package (PRIHATIN PLUS), and it was a bit more detailed than the previous one: Companies with more than 200 employees would be paid RM600 monthly per employee. However, the company could only claim this benefit for a maximum of 200 employees Companies with 75-200 employees would receive RM800 monthly per employee Companies with less than 75 employees would receive RM1,200 monthly per employee But there’s one rule that all employers must must abide by if they receive this aid: They CANNOT retrench their staff for 6 months (the 3 months where the wage subsidy is paid, and the next 3 months after that). So, if your boss has opted for this aid but has decided to let you go citing financial difficulties, you may have a good case against them in court for dismissing you without a valid reason. . You have more time to file a case in court now After reading this far, if you still strongly feel that you’ve been unfairly dismissed, then, you might want to take your case to the Industrial Court. Those wanting to file a claim for unfair dismissal are given 60 days from the time they are dismissed to do so, and this can be found in Section 20 of the Industrial Relations Act 1967: The Director General shall not entertain any representations under subsection (1) unless such representations are filed within sixty days of the dismissal This law has also been strictly followed in cases such as Fung Keong Rubber Manufacturing (M) Sdn Bhd v Lee Eng Kiat & Ors [1980] and Sim Kooi Soon v Malaysia Airline System [2005], where the judges said that there was “no escape clause” for it. But as we all know, with the MCO going on, courts cannot open as usual at this point. And at the time of writing, we don’t know exactly when the MCO will end and when court hearings will be allowed again. So, here’s the good news: The government has clarified in a set of FAQs that the 60 day limitation will only start from the time the MCO is lifted, and not from the day you were dismissed."
"More industries are allowed to open in phase 3 of MCO. Here’s what you need to know At the time of writing, it’s been more than a month since the Movement Control Order (MCO) has started. But for some of us, it might have seemed longer than that. During that time, our economy has been on a near standstill, with only a few essential services allowed to operate. Though other sectors which could operate from home, such as the media, kept on running (thank god we still have a job). However, others weren’t so lucky and have had to close shop during this time. But some sectors might be able to salvage their situation soon, as the government has announced a few new sectors that can operate in Phase 3 of the MCO. However, it’s not an immediate green light, as there are certain restrictions related to this. But first, let’s start with what sectors are allowed to be opened. Hardware, laundry and alternative medicine shops can now open In an FAQ released by the Ministry of International Trade and Industry (MITI), the government listed down the new sectors allowed to run during this time. Previously, barbershops, hair salons and optical shops were allowed to be open during Phase 3 of MCO. However, protests from the general public have caused those sectors to be removed from the list. Currently, the newly approved sectors allowed to operate during the MCO are: But even if your sector is included in the list, it doesn’t mean you can immediately operate because... Only companies in green zones are allowed to operate If you’re an owner or employee in the newly approved sectors, you might think that this means you’re automatically allowed to work. But hold that thought, because first you need to check your location. The announcement of the new sectors isn’t a blanket authorisation for them to operate immediately. Only sectors within the green zone are allowed to operate, and only after receiving approval from MITI. Do note that these new sectors are not considered ‘essential services’ – which are companies or businesses deemed important to run during these times, such as delivery services. They are just additional sectors allowed to open. Even if you’re in a green zone, you still can’t operate the same way as before the MCO happened. Companies are not allowed to run at full capacity. In general, companies will have a restriction on their operating hours, and their workforce needs to be reduced by 50%. It is slightly different for each sector, and you can check what are the restrictions specific to your industry at the registration page. These are just general guidelines. If you feel that you need more workers on hand, or would like to extend the operation hours, you can always apply with MITI to extend the operation hours, or to increase the workers available. And just like almost everything during the MCO... You can apply for approval online For the newly approved industries, they will need to apply online at MITI’s website, which you can find here. When you click to register at the page, there will be documents linked on the left side, where companies can download and read the guidelines they need to comply with during the MCO. It takes around 5 days for the application to be processed. If your application is rejected, don’t worry just yet because you can reapply, but do note that it will take another 5 days for your appeal to be processed. Do note that if your company has already received approval during phase 1 and 2 of the MCO, your approval letter is still valid, and you are still allowed to operate in phase 3. But you’re encouraged to reapply, simply because the new approval letters will come with a QR code, which will make verification faster when you’re checked by the authorities. It might seem tedious to reapply again, but getting faster verification is valuable, simply because the checks don’t just happen at roadblocks. According to the Standard Operations Procedure (General) on MITI’s website, the task force that patrols premises will be strengthened. This task force, which consists of PDRM, RELA, or other authorised agencies, can conduct checks at any time, to make sure that companies are following the required guidelines to operate during the MCO. But even before starting work, companies need to make sure that their workers are healthy and ready, as... Workers need to go through a Covid-19 screening first It might be tempting for companies to immediately start running to make up for lost time. But there are a few things employers need to do and setup before starting. In this time of coronavirus, they first need to make sure that none of their workers have contracted the virus. So employers would need to send their employees to get a Covid-19 screening before they operate. This can sound scary for the pockets, but the good news is that employers don’t need to pay for the screening, as Socso will foot the bill for the companies. The next one is pretty routine – employers would also need to check their employees temperature before they enter the workplace. This involves using the thermal scanner – that little gun people have been pointing at your forehead to check your temperature. The temperature readings will then have to be kept in the company records for at least 3 months. This is in addition to screening workers for any visible symptoms such as coughing or breathing difficulties. Employers would also need to go one step ahead besides just providing safety equipments. They would also need to sanitise the common areas such as lifts and toilets three times a day. And that may seem like a lot of work, but just know this... Do the work or you can’t work These steps are among some of the main guidelines companies need to comply with to operate during the MCO. These guidelines may seem extreme for some companies, and they might try to cut corners in order to save time or money. But doing so might just cause the whole company to be closed down. If authorities checking the premises finds that your company has breached the mentioned guidelines, your premise can be closed down immediately. Even worse, if your company is found to breach any guideline in the Prevention and Control of Infectious Disease Act, your approval letter will be revoked. If you feel that your company isn’t complying with the guidelines during the MCO, and is risking the employees health, you can report them to the police. You don’t need to call a specific hotline – just contact your local police station and they will guide you on what to do."
"We fact-check 5 social media posts that went viral during the MCO For the last two to three months, the one thing everyone hasn’t stopped talking about is Covid-19. With things getting more serious over the last few weeks, people are getting more concerned for themselves and their loved ones. And so especially during this MCO, perhaps out of concern (or perhaps out of boredom), Malaysians have been forwarding Covid-19 related messages without even checking whether or not they’re true. If you go through your own phone right now, you might find a whole lot of medically sketchy messages from a concerned uncle or aunty to not eat chicken meat because there’s coronavirus in it, or to sunbathe daily to kill the virus. Or you might also find some more logical-sounding ones such as that Covid-19 is actually airborne. But while some of them might make sense, how many of them are actually true? There have been so many viral WhatsApp forwards that have been going around, that it would be impossible to list them all here—but here are 5 of them that our team have personally come across and debunked. 1. Leave your letters in the mailbox for more than a day… to disinfect them Background: At the end of March 2020, this message went around Facebook and WhatsApp cautioning people to not touch any mail or packages given by a postman because a Poslaju worker had been tested positive for Covid-19. It also said to leave the item in the mailbox for more than a day, until the virus 'died’. Myth or truth: MYTH Fact check: Pos Malaysia quickly took to their social media to refute these claims, stating that none of their workers were infected in the first place. So, there was no reason for anyone to believe that the mail or packages they were receiving were contaminated. Popular myth-buster Sebenarnya.my also verified that this was merely a piece of fake news. But here’s the thing – even if a postman did get infected with the virus, another reason this message wouldn’t carry any weight is that the virus can live on surfaces for 3 days or more. While more research is being done one this, it seems that the survivability of the virus can vary depending on strain, type of surface, and environmental conditions So, leaving your letters in the mailbox to ‘disinfect’ them wouldn’t be as effective as simply washing and/or sanitizing your hands after removing the envelope. 2. Angkatan Tentera Malaysia helicopters are spraying pesticide from the sky Background: This one didn’t only go viral in Malaysia, but in several other countries as well. It went around on both Facebook and WhatsApp telling people to stay indoors because the military was going to ‘spray pesticide’ in the air to kill the coronavirus. Myth or truth: MYTH Fact check: Here are 3 things we can point out that make this message seem not very credible… Although the Covid-19 virus is an airborne pathogen, it is mainly transmitted through fluid from an infected person (such as when they sneeze, cough, or talk). If you’ve seen how water droplets travel after someone sneezes, it doesn’t actually go very far… it lands on other surfaces rather than hanging around in the air. This means that disinfecting the air may help in an enclosed environment, but not much in wide open spaces. However, research is still being done to determine how long the virus can survive in water droplets. Pesticide, which is what is mentioned in the message, is used to get rid of only pests and rodents. For viruses, disinfectants have to be used to kill them. The message mentions ‘helicopters’ at first, and ends with ‘the sounds of airplanes’—its information is inconsistent, which kinda puts doubts on its credibility. Angkatan Tentera Malaysia themselves have also debunked this piece of news through an official National Security Council (NSC) Telegram group. 3. Grab riders are spitting into Chinese customers’ food as payback for Covid-19 Background: The video above has been shared with multiple backstories. The video itself features a GrabFood rider stopping by the roadside with two other riders and opening the food carrier. There is a commentary (likely from the person recording) claiming that they were exchanging food items and other unsanitary behavior. After it was shared, many came up with their own theories and comments as to what was happening, including one Facebook user who claimed that Malay riders were spitting into the food that was ordered by Chinese customers as revenge for Covid-19. This was the version of the story that we received, btw. Myth or truth: MYTH Fact check: We reached out to Grab for their comments, and they told us that they’ve already addressed the issue in a Facebook group known as Rakan Grab MY, stating that the rider was likely rearranging the food in the carrier to prevent it from spilling. Grab added that safety and hygiene is a two-way concern. They have to ensure the safety of their riders and drivers as much as their customers, so they have provided their riders with a pack of masks that can be used while they’re on duty; along with discounts to redeem hygiene and health essentials within the Grab app itself, such as sanitizers, pharmacy vouchers and even medical insurance. But that’s not all. In a few Facebook posts that we came across, we saw a number of riders themselves taking measures to maintain optimum hygiene levels. Some sprayed sanitizer before putting on gloves, and some even wore double masks, as can be seen in this Facebook video. GrabFood Car (yes that’s a thing now) are also required to have containers to safely transport the food they’re carrying. 4. Garlic, rasam, eggs and [insert food here] can help fight Covid-19 Background: Even before Covid-19 became as serious as it today, people started forwarding messages which claimed that foods such as garlic, rasam, boiled eggs (and a long list of other ‘herbal’ foods) could prevent you from being infected by Covid-19. Myth or truth: MYTH Fact check: While these foods are known to have many benefits and the writer herself can’t live without rasam, the World Health Organization has an entire website debunking almost all of the wonderfoods being shared on social media, including durian, ice cream, and mango. However, we should note that some of these foods may help in the sense that a healthy diet would improve your immune system… but even that won’t automagically prevent you from getting infected. Also, don’t go baking yourself under the sun. Sunlight does not kill the virus. 5. The military is taking over Malaysia during the MCO Background: On the first day of the MCO (March 18th) a video showing some army tanks on the roads went viral. It’s not everyday that we see army tanks casually driving past us, so Malaysians assumed that there was going to be a state of emergency due to Covid-19. We do know that together with PDRM, Angkatan Tentera Malaysia are currently in charge of ensuring that the MCO is strictly followed by citizens. So, does that mean that the video is fake? Myth or truth: TRUE, BUT OUT OF CONTEXT Fact check: At the time this video was released, there was no plan to get the army involved in the MCO. It was only when the government felt that people weren’t co-operating with authorities did they ask the military to join the police. The tanks captured on video were returning to base in compliance with the MCO. This was later confirmed by the National Security Council themselves. So… this video isn’t exactly fake, but the army didn’t ‘take over’ the country and there currently is no state of emergency. Spreading fake messages can land you in jail If you had sent such messages to your family and friends, you most likely just wanted to alert them. Or you might have shared it for some laughs. Under the law, though, anyone who spreads fake news can get in some major trouble. The Fake News Act 2018 has been done away with, but there are other Acts that can still hold you responsible for spreading false information. Section 505(b) of the Penal Code – Anyone found guilty under this law can be jailed for up to 2 years fined, or both. But if the message that you sent out is harmless (like the garlic and rasam one), you’re pretty much safe. But remember, if you had deliberately sent these messages just to scare or cause panic, you’re most likely going to have the police knocking on your door. Section 233 of the Communications and Multimedia Act 1998 – This law applies to fake news spread via electronic networks and devices, such as your computers and phones. If you’re found guilty under this law, you can be jailed for not more than a year, receive a maximum fine of RM50,000 or both. So, whatever your intentions are for sharing, it’s a good idea to share only from trusted sources or to check how accurate the information is first; not just to prevent yourself from getting in trouble but also to not cause any inconvenience for other people. This writer couldn’t eat chicken for a week because her mother got a message in the family group chat that claimed chickens can carry the coronavirus -_- Here are a few links to help you get started on verifying information: Kementerian Kesihatan Malaysia Majlis Keselamatan Negara Sebenarnya.my Outbreak.my WHO Google"
"Here's how domestic abuse victims can report their abuser in Malaysia We’re officially into Phase 3 of the MCO, which is reflecting other pressing problems we’re facing as a nation. One such problem is the rise of domestic abuse cases—where Talian Kasih observed a 57% increase in calls during the current MCO. To briefly explain what Talian Kasih actually does, it’s a 24-hour hotline set up by the Ministry of Women, Family and Community Development—to help those struggling with emotional distress and social problems such as domestic violence. So with the rise in the number of domestic abuse cases, let’s take a look at some of the pre-existing laws and aids available to those who need help, or know someone who does. Domestic violence isn’t just physical violence Malaysia amended the Domestic Violence Act in 2017 to further strengthen the Domestic Violence Act 1994 (""DVA""). The amendments address certain issues that are more relevant in recent times. Now, if you’re thinking that the Act covers only married women who are abused by their husbands, this isn’t the case for the DVA. It includes all kinds of family relationships, regardless of gender. The Act also describes what exactly domestic violence can be, under Section 2 of the Act. This includes acts where the victim suffers from financial loss, fears for their safety, property or a third party—in a state of distress. The Act also includes any communication with the victim, with an intention to insult their modesty. In other words, if your spouse, or family member insults you through texts or even on Facebook, the law considers this as domestic violence. The punishments for domestic violence varies from jail term to fines—and this can even include offences punishable under the Penal Code. [READ MORE: 5 loopholes that Malaysian domestic violence victims no longer have to worry about] The amended Act has brought some significant changes to domestic violence cases in Malaysia. Now, here’s a guide on what victims can do if they experience domestic violence. There are protections available to the victim As clarified in the DVA, domestic violence doesn’t necessarily have to be physical harm. It can include emotional and financial distress too. Therefore, let’s take a look at 2 different domestic violence circumstances, and what you should do if you experience it. 1. If you need medical assistance In the event you’re physically abused and need medical assistance, you should get examined in a hospital first. Government hospitals have emergency rooms known as the One Stop Crisis Centres (OSCC). Our friends at Cilisos wrote an article about the OSCC, which you can read about here. Now the OSCC provides any sort of medical treatment—including emergency and trauma, psychiatric and gynaecology treatment. Medical evidence is also collected at the hospital, and victims can make a police report in the hospital itself. The police officer is then in-charge of all evidences and statements related to the abuse, and will file a case against the abuser if necessary. 2. If the domestic violence was not physical abuse In this circumstance, you can report this to the police by either calling, or visiting the station. Provide the police with detailed information such as the date and time of the domestic violence. Your report can be made in either Bahasa Malaysia or English. When reporting, you can apply for temporary protection, aka the Interim Protection Order (IPO). The IPO is meant to restrain the abuser from using domestic violence against the victim—before a police investigation is carried out. It basically provides temporary protection until further action can be taken against the abuser. The police officer will then give you a referral letter, which you need to take to the nearest Welfare Ministry office (Jabatan Kebajikan Masyarakat). The welfare officer will then accompany you to court to get the IPO. The procedure is rather straightforward and takes about a day to process the order. Once a case has been taken against the abuser, the victim can choose to apply for a Protection Order (PO), as stated under Section 5 of the DVA 2017 amendments. The PO prohibits the abuser from being anywhere near the victim, and is restrained from entering the victim’s house, workplace or even school. However, if the victim needs immediate protection from the abuser, the law also provides the emergency protection order (""EPO"")—which can be obtained within 2 hours. The EPO acts as a temporary safeguard before applying for an IPO, and can be obtained via Talian Nur or visiting the nearest Welfare office. If the abuser goes against this EPO (with or without using violence), he or she can face a jail sentence of up to two years and/or fine of up to RM5,000. So the victim does not need to head down to a police station to get the EPO, but can receive one from the welfare officer immediately. However, take note that the EPO only lasts for 7 days, and a police report must be done to receive an IPO for further protection. Here are some organizations that can help Since this MCO period has been extended until the end of April and mental health cases are expected to rise, here are certain measures you can take to curb any emotional distress and abuse you might be facing. As we mentioned earlier, Talian Nur’s hotline (15999) is available 24/7 to report any case of domestic and social abuse. In addition to domestic violence, child abandonment and abuse cases can also be reported through this hotline. PDRM is also lending a hand in curbing domestic violence via the Victim’s Care Centre under the criminal investigation department (D11)—for counseling services and professional care services for victims. And not forgetting the prominent organization: Women's Aid Organisation (""WAO"") which can be reached at 03 7956 3488/ 018 988 8058 through Whatsapp and even SMS."
"Korang boleh kena tindakan undang-undang, kalau menyanyi di balkoni rumah [Click here for English version] Nampaknya dah lebih dua minggu kita duduk diam-diam dalam rumah disebabkan pelaksanaan Perintah Kawalan Pergerakan (PKP). Mungkin ada yang selesa dengan keadaan ni dan rasa tak ada apa-apa pun kalau sepanjang masa duduk di rumah. Tapi ada juga yang dah mula rasa gelisah dan buat macam-macam untuk hilangkan kebosanan di rumah. Ada pelbagai cara kreatif kita nampak orang nak hilangkan bosan ni, antaranya macam main game, memasak, tengok movie, kemas rumah dan tak kurang juga ada yang berkaraoke dekat balkoni apartmen masing-masing. Bukan di Malaysia je, sebelum ni dah tersebar video tular di Itali bila mereka menyanyi dekat balkoni masing-masing masa dijalankan perintah berkurung. Boleh tengok di sini kalau tak tengok lagi. Walaupun benda ni nampak macam seronok dan memeriahkan suasana, mesti korang tak nak nyanyian korang terhenti sebab polis ketuk pintu rumah kan? Dan sebab itulah munculnya persoalan sama ada boleh ke kita menyanyi di balkoni masa PKP? Sesi karaoke korang tu boleh jadi kacau ganggu kepada jiran-jiran Kadang-kadang, walaupun kita tak perasan – tapi ada yang kita buat tu boleh menyakitkan hati jiran. Hal tu termasuklah seperti buat bising, masak masakan yang berbau kuat ataupun biarkan haiwan peliharaan buat kacau di halaman rumah jiran. Kalau benda-benda ni jarang-jarang berlaku, kemungkinan besar jiran taklah kisah sangat. Tapi, kalau gangguan tu selalu berlaku sampaikan mengganggu kehidupan harian jiran, korang mungkin dah lakukan kesalahan tort yang dikenali sebagai kacau ganggu persendirian (private nuisance). [BACA LAGI: What is a Tort?] Kacau ganggu ni adalah terma undang-undang bila mana korang mengganggu hak jiran untuk menikmati hartanah mereka dan ia mungkin menyebabkan bahaya. Ada dua jenis kacau ganggu iaitu kacau ganggu persendirian dan kacau ganggu awam. Tapi untuk artikel kali ni, kami cuma bagi fokus pada kacau ganggu persendirian, yang boleh berlaku sekiranya seseorang tu melakukan sesuatu yang mengganggu kita dari menikmati hartanah kita sendiri – atau senang kata: kacau ‘orang nak hidup selesa’. Untuk menang dalam kes kacau ganggu ni, jiran korang tu mesti kena buktikan sesi berkaraoke korang dekat balkoni tu (dalam situasi ni) sebagai tak munasabah dan menganggu jiran lain menikmati kehidupan mereka. Walaupun macam tu, menyanyi dekat balkoni sebenarnya bukanlah kesalahan jenayah. Sebaliknya, ia dah dilakukan dalam keadaan dan masa tertentu yang mana membuatkan jiran korang marah dan buat laporan terhadap korang. Tapi, ia juga bergantung dari balkoni macam mana yang korang menyanyi tu… Kalau duduk di kondo, undang-undangnya lain Disebabkan banyak sesi karaoke ni berlaku di apartmen dan kondominium, jadinya kami akan fokus kepada hartanah strata dalam artikel ni. Kalau korang tinggal di hartanah strata seperti apartmen/flat/kondominium/komuniti bersekuriti – korang tertakluk kepada undang-undang dan peraturan yang ditetapkan di bawah Peraturan-Peraturan Pengurusan Strata (Penyenggaraan dan Pengurusan) 2015. Dalam beberapa kes tertentu, korang juga terikat dengan kontrak sewaan/ kontrak perumahan - sama ada yang terdapat dalam Surat Ikatan Perjanjian Bersama atau Perjanjian Jualan dan Pembelian yang menjelaskan 'peraturan rumah' yang kena dipatuhi. Untuk kebanyakan hartanah strata, selalunya akan ada badan pengurusan – yang mana penduduk boleh bangkitkan sesuatu isu dan buat aduan. Badan pengurusan ni pula ada kuasa menguatkuasakan undang-undang kecil untuk melarang penduduk daripada membuat sebarang gangguan. [READ MORE: 4 sebab anda boleh disaman oleh pengurusan kondominium] Jadinya, kalau jiran korang tak suka korang menyanyi dan buat aduan kepada badan pengurusan, mereka boleh ambil tindakan terhadap korang seperti denda – dan bukannya bawa peguam atau masuk mahkamah. Tapi untuk jiran korang tu berjaya dengan tuduhan kacau ganggu terhadap korang tu, dia kena buktikan beberapa elemen dalam kesnya seperti: Ada gangguan terhadapanya untuk menikmati hartanahnya Gangguan tu bersifat tak munasabah Gangguan tu menyebabkan kerosakan terhadapnya (mungkin sampai buatkan telinganya berdarah) Kalau jiran korang tu boleh buktikan tiga elemen ni berlaku disebabkan korang menyanyi dekat balkoni, mereka mungkin boleh saman korang untuk duit. Tapi ada satu lagi perkara penting yang undang-undang kata tentang kacau ganggu. Gangguan itu mestilah berlaku akibat tindakan yang berterusan dan bukannya berlaku hanya sekali. Sekarang ni, macam mana pula kalau keadaan berubah – bila korang pula jiran yang jadi mangsa tu. Tak salah juga kalau ada kejiranan yang meriah (kadang-kadang la) Pada akhirnya, bukan undang-undang saja yang ada, tapi juga rasa timbang rasa sebagai masyarakat yang hidup berjiran. Sebabnya, dalam keadaan tertentu – kadang-kadang ada juga situasi saling faham memahami. Lebih-lebih lagi dalam keadaan tak dijangka ni, yang memerlukan kita semua untuk tinggal di rumah dalam tempoh yang lama. Jadinya, sebelum korang buat aduan terhadap jiran yang berkaraoke tu, mungkin lebih baik korang berbincang baik-baik dulu dengan mereka. Tapi, kalau dengan cara tu pun masih tak buatkan mereka insaf, korang boleh je buat aduan kepada badan pengurusan atau pihak berkuasa tempatan (cth: Majlis Bandaraya/Majlis Perbandaran) masing-masing. Kalau dah takde jalan diplomatik lagi, memang tak dapat dinafikan perlunya ada tindakan tegas. Tapi korang kenalah ada cukup bukti yang untruk mengatakan apa berlaku tu sebagai kacau ganggu. Akhirnya, mahkamah akan memutuskan sama ada jiran korang tu betul-betul melakukan kacau ganggu atau tak, berdasarkan fakta dan keadaan."
"Can airlines in Malaysia refuse to refund you for cancelling your flight? We’re currently experiencing a pandemic due to Covid-19, with close to 2 million being infected worldwide at the time of writing. With 185 countries being affected by this virus so far, many have gone into lockdowns. This means that people can’t travel from country to country, or even within the country for the time being. Naturally, those who had travel plans during this period would have to cancel their trips, and this would include those who wanted to travel by air. With airlines receiving thousand of flight cancellation requests at this time, some have opted to ‘refund’ their customers through other means besides cash to cut their losses. Some of these include vouchers and credit notes, which means that the customer would be paid back through a unique voucher or code, but it can only be used to buy a ticket within the same airline. In other words, they can’t exchange it for cash and use it for something else. This way, the customer’s payment would be retained within the airline and there wouldn’t be a huge outflow of cash. It’s not illegal for an airline to use other refund methods like this, but can they force you to accept credit notes instead of refunding your money back during Covid-19? Short answer: Yes, they can This has been happening all around the world, but let’s just focus on airline companies registered in Malaysia. With more and more people having no choice but to cancel their flight tickets in the last few weeks, The Malaysian Association of Tour and Travel Agents (MATTA) decided to voice their opinion on the issue. They strongly urged airlines to issue cash refunds because if customers only received credit notes, these notes can’t be used if the airline were to shut down. “...They must first payout cash refunds to restore public confidence and it is a matter of principle to return payments collected from customers for services not rendered due to the current circumstances.” - Shazli Affuat Ghazali, MATTA Vice President for air transportation They asked MAVCOM, which is the Malaysian Aviation Comission to issue a statement, so that there would at least be a more fixed rule for airlines to follow. MAVCOM did step in and in response to MATTA, said that they would give airlines some leeway and let them decide how to refund their customers. Besides that, they also said they would give airlines a little more time than the usual to process refunds, since there is an influx of them at this point. “The commission also strongly encourages consumers to refer to the website of respective carriers to ascertain the terms of any refund requests. The airline nevertheless retains a commercial discretion on whether to exceed the prevailing tickets terms in favour of the consumer,” - MAVCOM So, in other words, an airline would need to refund you based on the refund policy of your ticket. But if it was necessary to go against that policy — meaning that they will give you a credit note — they have the right to do so. MAVCOM said that this had to be decided this way because this is a rare situation that is neither the airline’s fault nor the customer’s airlines would need to do whatever they could to prevent the company from shutting down — issuing non-cash refunds to minimize losses would be one way We also called MAVCOM up to check if there were any updates to this decision, but they said that as of now, it still stands. However, they did say that the customers’ interests had to be protected at all times. Airlines are still expected to solve every refund request in the best way possible. If there are better options to refund the customer other than the credit note, the airline should go by that. Contact the airline to see how else they can help you While it does seem unfortunate, the bottom line is this: How you are refunded solely depends on the refund policy of your airline or any new policy the airline adopts in difficult times like this. You might have heard or read that some airlines that are: willing to fully refund in cash offering several refund options totally banning cash refunds and are asking customers to accept non-cash refund methods If your airline is offering you a credit note but you don’t want to accept that, contact them to find out if they’re able to accomodate your request for another refund method. You also might have considered complaining to a higher authority such as MAVCOM if your airline refuses to refund you in cash. When we asked them about this, they told us to file a complaint with the airline first to see if it can be resolved internally. Only if your airline is not following its own policy and abusing its powers should you file a complaint with MAVCOM. It’s different if there isn’t a global emergency It’s worth noting that in other circumstances, this would have to be decided very differently. If there was no pandemic and there weren’t thousands of people cancelling flights at the same time, airlines will not be able to cite financial difficulties as a reason to hold your money back from you. In a case like this, airlines would be expected to give you a full cash refund. In any event, it’s always important to the check the terms and conditions of your flight ticket before purchasing it, as this may be of some help to you in getting your money back."
"MCO violators will only be fined RM1,000. But can PDRM arrest you as well? [Update on 15/04/2020: For phase 3, MCO violators will now be arrested and charged in court, instead of being summoned.] We’re now three weeks into the movement control order (MCO), and most Malaysians have been pretty good at that. So far, we have a 97% compliance rate. Some of us might have adjusted to the stay at home lifestyle, but even the most introverted among us need to go out and pick up some groceries, or at least get some sunlight. But with us deep in phase 2 of the MCO, and soon entering phase 3, the police are starting to monitor our movements even further. In some states such as Selangor, the police are starting to increase the number of roadblocks. And with more roadblocks, that just means we’ll be more likely to meet a police officer when we go out. Now, if you’re a good, law abiding citizen, you probably wouldn’t mind about it. However, the police have now changed their policy in dealing with MCO violators. Previously, the police were operating on a soft and advisory mode, merely giving violators a stern warning and to head home. In phase 2, the police have turned on harsh mode, and strictly enforcing the MCO. This lead to more than 7,000 people being arrested since March 18 for violating the MCO. With such a high number of arrests in just 3 weeks, some of us might worry about what might happen if the police arrests you. But you likely don’t need to worry about it because... If you follow the rules, you’ll be fine In most cases, if you follow the MCO guidelines set by the government, the police would just let you through at roadblocks. Until April 28, there are restrictions on how we can move around during the MCO. In case you don’t know yet, right now you can’t leave the house unless you’re going out to buy food or necessities, or going to a clinic or hospital for medical treatment. You’re only allowed to travel up to 10km from your home, and you cannot be accompanied by another person, unless it’s really necessary. This was instituted in the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No.2) Regulations 2020. So to help enforce it, the police have recommended people to carry their utility bills with them. This way, if you are stopped at a roadblock, you can show the police the address on your utility bill as proof that you’re within the stipulated 10km radius. The only exception to this restriction is if you are working in an essential service, such as food delivery. But you will still need to get a letter from your employer stating that you are working in an essential service. Still, even if you accidentally (we hope) break the rules, chances are you won’t get arrested immediately because... You’ll probably get fined first Instead of the jail time, the authorities will now only give you a RM1,000 summons instead. The police decided to only give summons now due to fears that Covid-19 will spread within the prison population. This is allowed under Section 7 of the Prevention and Control of Infectious Diseases Regulations 2020, which lists a RM1,000 fine, prison time not exceeding six months, or both, for violating the MCO. When you’re caught, you will be brought to a police station where you will be issued the summons. This summons has to be paid within two weeks at any Ministry of Health office. Though if you’re unable to pay it, there is still the chance that you can do community service instead. Recently, two labourers were originally given three months of prison time for going fishing during the MCO. The high court then overturned the punishment, and sentenced them to three months of community service instead once the MCO is lifted. So no matter what, there are still other punishments that could happen before you’re arrested and thrown into jail. But that doesn’t mean it will never happen, because you have to remember that... The police can still arrest and imprison you If you remember, under the Prevention and Control of Infectious Diseases regulations, you can still be imprisoned. But with the enforcement of the RM1,000 summons instead, it is unlikely that you’ll be jailed for violating the MCO. Instead, there is another way to get arrested: if you try to stop the police doing their job. In the context of our MCO, this could mean not cooperating with the police officer who is trying to enforce the MCO. This can bring an even bigger punishment compared to the fine under the MCO. Under section 186 of the Penal Code: Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment for (up to)...two years or with fine ...(up) to ten thousand ringgit or...both. This isn’t new, however, as there are already previous cases during the MCO which are investigated under section 186. So you can still be imprisoned for violating the MCO, and be given an even heavier punishment, if you refuse to cooperate with the police. Know your rights Whenever you’re arrested, you have the right to a lawyer. This is enshrined in Article 5(3) of the Federal Constitution, which states that: “Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.” And even if you think that you can’t afford a lawyer, there are legal bodies that will help provide either pro bono (free) service, or at a subsidised rate. But if you feel that the police have done a misconduct, you can report them to the Enforcement Agency Integrity Commission (EAIC). If you don’t know what the EAIC do, we’ve written about them previously here. Basically, the EAIC’s job is to investigate any complaints or misconducts done by police officers. You don’t even need to go to the office, as you can lodge a complaint online. But as you can see, the chances of getting arrested now is really unlikely, due to the decision to impose a summons instead. So to not get arrested, it’s best to just follow the rules, be nice to the police, and stay at home."
"Tinggalkan rumah tanpa alasan munasabah masa PKP, korang boleh dipenjara! [Click here for English version] COVID-19 nampaknya masih lagi menghantui kita semua dan Perintah Kawalan Pergerakan masih lagi berjalan ketika ni. Seperti yang dimaklumkan, perintah ni yang pada mulanya berjalan dari 18 Mac hingga 31 Mac 2020 ni, kini akan dilanjutkan sehingga 14 April. Perdana Menteri, Muhyiddin Yassin pun dah merayu kepada rakyat Malaysia supaya mematuhi arahan perintah ni dan minta kita supaya duduk di rumah diam-diam. Kalau nak keluar pun, cuma untuk hal-hal tertentu je macam nak beli barang keperluan atau ada kecemasan. Perhimpunan melibatkan ramai orang juga diminta untuk dibatalkan, selain institusi pendidikan dan bukan perkhidmatan penting turut diarahkan tutup. Bagaimanapun, nampaknya macam masih ramai yang tak kisah sangat dengan arahan ni sebab ada je yang masih lagi berkumpul untuk makan dan balik kampung, sampai buatkan kesesakan lalu lintas. Boleh kata, ramailah yang marah dengan tindakan mereka yang tak bertanggungjawab ni. Tapi tahu tak kita apa yang kita boleh dan tak boleh buat sepanjang tempoh ni? Ini bukan perintah berkurung atau lockdown Sebelum kita masuk pada undang-undang, kita semua kena tahu dulu apa yang jadi ni sebenarnya bukanlah perintah berkurung atau lockdown. Masa Perdana Menteri umumkan Perintah Kawalan Pergerakan ni, ramai yang salah faham dan ingat yang ianya perintah berkurung. Sebenarnya, perintah berkurung ni berbeza dengan Perintah Kawalan Pergerakan. Negara yang berada di bawah perintah berkurung macam Itali, memerlukan rakyatnya berada dalam kediaman setiap masa dan kena ada slip kebenaran daripada polis setiap kali mereka keluar. Sebaliknya, kawalan pergerakan taklah setegas tu. Apa yang kita kena buat cuma duduk dalam rumah – tapi masih lagi dibenarkan pergi ke tempat-tempat berdekatan untuk beli makanan atau bekalan perubatan. Tapi, seperti mana yang diberitahu awal tadi, masih ada sektor tertentu yang terus dibenarkan beroperasi. Makanya, apa yang kita lalui ni bukanlah perintah berkurung sepenuhnya, dan kita juga dibenarkan untuk begerak ke tempat-tempat tertentu. Tapi.. masih ada peraturan-peraturan tertentu yang kita kena patuhi. Jadi, selain tak boleh keluar rumah sesuka hati, apa lagi yang kita tak boleh buat? Korang tak boleh balik kampung? Sebelum perintah ni bermula, ramai yang mula balik kampung dan masa tu masih tak ada lagi larangan spesifik terhadap pergerakan dalam negara. Disebabkan penutupan institusi pengajian, ramai juga pelajar-pelajar yang terpaksa pulang ke kampung dan keluarga masing-masing. Jadinya, semasa kita dinasihatkan tak bergerak antara negeri, PDRM masih lagi membenarkannya jika perlu. Lepas tu, sesiapa yang nak buat perjalanan antara negeri, mereka kena dapatkan borang kebenaran di balai polis berdekatan. Tapi cara ni dah buatkan orang ramai berkumpul di balai polis, sampaikan PDRM sendiri tak dapat nak kawal. Hal ni kemudiannya membawa kepada penarikan balik keperluan kebenaran dan semakin ramailah yang balik kampung. Pada 18 Mac 2020, kerajaan dah keluarkan peraturan baru yang dibuat oleh Menteri Kesihatan (kita akan bincang nanti). Di bawah peraturan baru ni, dah diputuskan yang pergerakan antara negeri tak dibenarkan sama sekali, kecuali dalam keadaan tertentu: Kematian ahli keluarga terdekat Ahli keluarga sakit tenat Rawatan perubatan diri sendiri dan ahli keluarga Lain-lain perkara atas pertimbangan ketua polis balai Kalau alasan nak bergerak antara negeri tu tak penuhi keadaan-keadaan ni, seseorang tu tak akan dapat kebenaran daripada pihak polis untuk melakukannya. Jadi, kalau korang balik kampung tu tanpa sebab munasabah dan tak dapat kebenaran daripada polis, korang dah melanggar Perintah Kawalan Pergerakan dan melanggar undang-undang. Tak ada lepak mamak, berkumpul majlis perkahwinan & pengebumian Kalau keluar makan sorang-sorang nampak macam tak bawa apa-apa mudarat kan? Tapi nampaknya perkara tu tak untuk dua minggu ni. Sebabnya, Kementerian Kesihatan Malaysia dah keluarkan senarai Soalan Lazim Ditanya (FAQs) yang memberi kita gambaran tentang apa yang dibenarkan dan tidak dibenarkan semasa perintah kawalan ni. Berdasarkan FAQs itu, restoran dibenarkan beroperasi seperti biasa, tapi hanya boleh untuk bawa balik makanan sahaja. Ini bermakna, korang tak dibenarkan untuk duduk dan makan dalam kedai, sebaliknya hanya boleh tapau makanan untuk dibawa balik. Selain tu, ada juga alternatif lain macam perkhidmatan penghantaran makanan seperti GrabFood dan FoodPanda. Seperti mana yang dikatakan di awal tadi, beberapa jam selepas perintah kawalan ni dilaksanakan –masih ada orang Malaysia yang makan di restoran dan kedai kopi. Kalau ditangkap buat macam tu, mereka ni boleh berdepan dengan dakwaan melanggar perintah kawalan. FAQs ni juga ada sentuh tentang majlis atau perhimpunan penting. Untuk majlis perkahwinan, hanya majlis kecil di kalangan ahli keluarga terdekat je dibenarkan. Tapi untuk resepsi perkahwinan yang selalunya melibatkan ramai tetamu adalah dilarang sama sekali. Tentang majlis pengebumian pula, walaupun majlis ini penting – masih ada lagi kawalan untuknya. Kalau yang meninggal tu bukan pesakit Covid-19, hanya keluarga terdekat sahaja yang dibenarkan. Untuk masyarakat muslim pula, beberapa ahli kariah masjid atau surau boleh tolong untuk menyempurnakan pengebumian itu. Tapi kalau yang meninggal itu mangsa Covid-19, tak ada sesiapa yang boleh datang dan jenazahnya pula akan diuruskan oleh kakitangan yang diberikan kuasa. Untuk tahu lebih terperinci lagi tentang apa yang tak dibenarkan dari 18 Mac sampai 14 April 2020, klik sini. Tapi muncul juga persoalan, apa akan jadi kalau kita langgar peraturan-peraturan yang dah ditetapkan ni? Korang boleh didenda dan dipenjara kalau ingkar perintah kawalan Sebenarnya, perintah kawalan ni sendiri adalah undang-undang yang dah berusia 53 tahun dan ia bukanlah baru je digubal. Akta Polis 1967 mengatakan pihak polis boleh mengarahkan orang Malaysia untuk berada di rumah jika perlu. Seksyen 31, dalam Akta menyatakan: (1) Seorang Pesuruhjaya atau seorang Ketua Pegawai Polis boleh, jika difikirkannya perlu untuk kepentingan keselamatan Malaysia atau keselamatan mana-mana bahagiannya atau untuk kepentingan ketenteraman awam, dengan perintah menghendaki, tertakluk kepada syarat atau pengecualian itu yang difikirkannya bermanfaat… ditetapkan dalam perintah itu supaya berada dalam rumah di antara waktu yang ditetapkan di dalamnya; Jadi, kalau ada kepentingan awam dan keselamatan, PDRM mempunyai kuasa untuk minta sesiapa saja berada di rumah...tapi dalam seksyen sama ada juga dinyatakan: (4) Tiada apa-apa perintah yang dibuat di bawah subseksyen (1) boleh berkuat kuasa berterusan lebih daripada dua puluh empat jam dari masa ianya dibuat: Ini kedengaran macam kita hanya perlu tinggal dalam rumah sehari je, kan? Selain itu, Perdana Menteri yang membuat perintah ni. Jadi kenapa PDRM yang terlibat? Sebenarnya, bahagian undang-undang ini datang dengan penafian, dan ia kata: Dengan syarat bahawa Menteri, pada atau sebelum tamat tempoh perintah itu, boleh mengarahkan supaya perintah itu hendaklah berkuat kuasa seterusnya bagi apa-apa tempoh lanjutan tidak lebih daripada empat belas hari sebagaimana dinyatakan olehnya dan, apabila dibuat apa-apa arahan sedemikian, perintah itu hendaklah berkuat kuasa seterusnya bagi tempoh lanjutan itu. Pada asasnya, Menteri mempunyai kuasa untuk melanjutkan perintah sehingga 14 hari, dan bahkan lebih jika diperlukan. Tugas polis di sini adalah untuk menguatkuasakan perintah itu dan memastikannya dipatuhi. Jadi, sekarang kita tahu dari mana datangnya perintah ni. Tapi apa akan jadi kalau kita ingkar dengan perintah ni? Akta Pencegahan dan Pengawalan Penyakit Berjangkit 1988 pula adalah satu set undang-undang yang memberitahu kita apakah langkah-langkah yang boleh diambil semasa pandemik, dan apa yang berlaku jika kita ingkar dengan apa-apa perintah yang dibuat pada masa itu. Seksyen 24 dalam akta ni menyatakan –hukuman denda dan penjara sehingga dua tahun untuk kesalahan kali pertama, denda dan penjara lima tahun untuk kali kedua, dan denda bagi tiap-tiap hari kesalahan berterusan. Tapi kerajaan dah keluarkan satu set undang-undang baru untuk Covid-19, yang dikenali sebagai Peraturan-Peraturan Pencegahan dan Pengawalan Penyakit Berjangkit (Langkah-Langkah Di Dalam Kawasan Tempatan Jangkitan) 2020. Di bawah peraturan ni, sesiapa yang melanggar Perintah Kawalan Pergerakan boleh dipenjara sehingga 6 bulan, didenda RM1,000 atau kedua-duanya. Jadinya, pastikanlah korang ikut peraturan-peraturan yang ditetapkan ni, dan pekalah dengan segala perkembangan yang diumumkan oleh kerajaan dari masa ke semasa."
"Can Malaysian authorities force you to get tested for viral infections? The Health Director-General, Datuk Dr Noor Hisham made a statement lately on the increase in testing for COVID-19, across the country. The test for the virus initally started with 3,000 tests a day at 18 hospitals. But due to the rapid rise in the number of cases, the Health Ministry expects to increase the testing capacity to approximately 16,500 people, on a daily basis. Now most of these tests are done on those who may have symptoms of COVID-19 or have been in close contact with someone who has been tested positive for the virus. We previously wrote an article on what Malaysians can do if they know someone who doesn’t want to get tested for the virus, despite having symptoms for COVID-19. [READ MORE: Here's what you can do if someone isn't revealing they're COVID-19 positive in Malaysia] But here’s a flipside to the scenario: What if the authorities force you or someone you know to get tested for the virus, despite not having any symptoms or not being in close contact with a COVID-19 positive person? The choice is normally yours, but not when it comes to this global pandemic. The patient normally decides, but not in this case To answer this, we need to look into a UK case law from 1993. In Airedale NHS Trust v Bland, the court stated that patients get to make their own decisions when it comes to something affecting their health. The patient basically has the right to refuse treatment or tests and this must be respected, based on their interests. However, in a situation like this—where a global pandemic has taken over and the number of people contracting the virus increases everyday, the principle adopted in the UK case cannot be applied in this situation. This is simply because, the COVID-19 virus is now a health threat to the society, which is going against the laws we have here to curb the spread of this virus. Section 12 of the Prevention and Control of Infectious Diseases Act 1988 states that this might potentially be an offence in Malaysia: “No person who knows or has reason to believe that he is suffering from an infectious disease shall expose other persons to the risk of infection by his presence or conduct in any public place or any other place used in common by persons other than the members of his own family or household.” If a person reasonably thinks he might be infected with the virus, and still goes on to risk others by moving in public places—he can be fined, imprisoned up to 2 years or both for the offence. So here’s essentially what the authorities can do on their side: The authorities can legally force you to get tested Recently, the Health DG made a press statement that 69 sporadic transmissions (unpredictable infections) have been recorded in the country. This means that the origin of the infection on those who had gotten it is unknown. As much as this can be alarming, the law can help prevent this by getting people tested for the virus...with force. Since the Act makes it an offence to spread the infection, authorities have the right to force someone to get tested for COVID-19. Section 11(3) of the Prevention and Control of Infectious Diseases Act 1988 states that: “...It shall be lawful for any authorized officer to direct any person or class or category of persons living in an infected local area or in any part... (b) to isolation, observation or surveillance, the period of which being specified according to circumstances; or (c) to any other measures as the authorized officer considers necessary to control the disease. (4) It shall be lawful for an authorized officer to use such force, with or without assistance, as may be necessary and to employ such methods as may be sufficient to ensure compliance with any direction issued under subsection (3).” The Act essentially says, that the authorities have the legal right to use force against anyone who doesn’t comply with the measures they think are necessary. So, if you’re suspected of having the virus, either due to close contact with confirmed cases, or you happen to be in a red zone, the authorities can then force you to get tested. Now the term “authorized officer” here specifies medical officers (such as doctors), health officers and any other authority that the Minister thinks fit. Therefore, the authorities have the right to investigate and compel someone to take the test—as long as the Health Minister gives them the green light to do so. So even if you think you might not have contracted the virus, but the authorities suspect and want you to get tested—it’s best to comply and get screened to avoid being in jail instead."
"How has the MCO affected you? Tell us in our Duduk Rumah Survey! CLICK HERE to take the Duduk Rumah Survey now! Unless you’ve been living under a rock (which is probably the safest place now tbh), we’ve been under a Movement Control Order (MCO) since March 18th. This was the government’s response to curbing the Covid-19 pandemic, as social distancing is an effective method for preventing the spread of the virus at large. April 1st marked the beginning of our second MCO phase, and stricter rules like a 10km travel radius and a 12-hour business and food delivery curfew have been put in place to flatten the curve and hopefully see the number of cases dwindle down. But the MCO has also changed life for many Malaysians… Most of us are making the best of the situation, trying out challenges that involve fancy whipped coffee, getting our groceries online, and showing off our latest culinary masterpieces on social media. While it might seem that the MCO isn’t too bad, there are also those facing mental health issues from the isolation, employees looking at job or pay cuts, or even the chicken rice uncle who’s likely to lose his literal rice bowl. Since we basically just described our own upsides and downsizes downsides in the paragraph above, we figured we weren’t the only ones going through this. And so, we partnered up with Cilisos and made a survey to see how all our readers are coping with the MCO: How many of you have more than enough food to eat? (Or worse, NOT enough?) How many of you have your jobs at stake? How many of you secretly break the MCO rules just to get a moment of sanity? How many of you have turned into Doraemon? Take the Covid-19 Duduk Rumah Survey now so you’ll get to see just how different – or same-same – you are vs everyone else. Plus, it’s not like you have anything else to do anyway so you might as well layan us la… CLICK HERE to take the Duduk Rumah Survey 2020 now! If you’d like a detailed analysis of these results, please contact our sales team at advertising@cilisos.my"
"大马人遇到刻意隐瞒自己有新冠病毒的人该怎么办? 新冠病毒至今已经夺走了37条人命，累计确诊病例达到2626。看着这些上升的确诊数字，我们现在还有另一个令人担心的问题：那就是有些病患在求医时蓄意隐瞒自己曾经与确诊病患接触的情报。 这种事件导致医院被迫关闭，医护人员恳请人民遵从医院所设定的规则和程序来避免更多的人感染新冠病毒。 试着想象这样的情况：行动限制已是第10天，你待在家一整天了。几乎每一分钟的过去，你都听到隔壁邻居在咳嗽。你不禁回想到隔壁邻居曾告诉你，两星期前他才从海外出差回来。 你很难不去猜测或怀疑他是不是染上了新冠病毒。更令人担忧的是，他时常到附近的市场购买日常的杂货。作为一位忧心的市民和邻居，你在想到底如何防止疑似帶病毒的人散播至更多人呢？尤其这位邻居也没去向医生求诊。 在我们知道该采取什么行动时，我们一起来看看法律对于这种刻意向有关人员隐瞒病情的人，有什么样做法？ 拒绝通知有关人员是一种罪行/犯罪 突然患病已经很可怜了，没有病患还会要因患病而坐牢。可是，还是有些大马人不愿意主动向医护人员透露，自己曾与身上可能有病毒的人接触过的事实。 根据报道这样的案件发生在吉打州，一家私人医院被迫关闭2天。就因那位妇人没有如实告知医护人员，自己曾经与确诊的亲戚接触过的实情。这种行为在 Prevention and Control of Infectious Diseases Act 1988 (管理传染性疾病的法律)下已算是一项罪行。第12条款说明了： “任何人都不可以在知道自己有或可能拥有传染性的疾病的情况下，让其他人曝入被传染的机率里。因为自身出现在公共场所或行为让被人承担被感染的风险。这里的公共场所不包括自己的家。” 任何觉得自己可能患有新冠肺炎的人不应该随便走动，尤其是公共场所。那样的行为会被罚款，甚至被判坐牢2年，或两者兼施。 现今，任何被确诊却不愿意遵守政府所定下的隔离规则的人，将会根据法律的条款受到惩罚。马来西亚刑事法典第271说明了： 在隔离的情况下还蓄意违规，感染着病毒到处走动的人。将被严谨给予处罚，入狱甚至达到6个月或付罚金，或两者兼施。 当一个人被给予隔离令的时候，通常都是因曾经接触过确诊的人。卫生部已有特定的指南来处理这些被病毒侵入的确诊者。以下是卫生部所提供的程序图表： 政府给出隔离令后，地方卫生部人员会联络你或是直接前往你的住所探望你。被隔离在家的人要连续13天(观察期)都受检验，至到你的检测结果呈阴性(没病毒了)才能离开自己的住所。 那么，在知道自己没有病毒的情况下，你得知有些人可能被感染了病毒。你能做什么呢？ 大马人必须向有关单位举报刻意隐瞒者 如果有些人已经出现了新冠病毒的症状，却不愿意寻求治疗—在法律上你是有责任把这件事举报给有关单位的。 Prevention and Control of Infectious Diseases Act 1988 (管理传染性疾病的法律)的第10条款说明： “任何处在有传染病的住家或公司里的成人，必须对传染病的存在有所警惕，在最短的时间内通知地方卫生部或政府的卫生机构或附近警察局或附近村长，有这种传染病的存在。” 这条法律最主要说明，如果你发现了任何人可能感染了新冠病毒，一定要向地方卫生部,政府的卫生机构,附近警察局或附近村长举报。举报的时机最好是越快越好，这样才能有效的防止病毒的传播至更多的人。 然而，如果你尝试‘帮助’ (故意隐瞒/ 隐瞒)那些已经患病的人，不劝导他们去寻求治疗的话，你有很大可能将面临坐牢2年或被罚钱的惩罚。所以最好的做法就是当你发现或怀疑谁可能感染了病毒的时候，尽快向有关单位举报或通知他们。 为了能更好地处理这类型的事件，卫生部门已提供了几条热线让民众拨打。所以当你发现任何已感染新冠病毒却没有寻求治疗的人，请你马上拨打以下热线。"
"Boleh ke penyewa dapat diskaun sewa masa perintah kawalan pergerakan? [Click here for English version] Ketika artikel ni ditulis, dah 19 hari rakyat Malaysia menjalani Perintah Kawalan Pergerakan (PKP). Perdana Menteri, Muhyiddin Yassin pun dah umumkan pelanjutan tempoh PKP sehingga 14 April 2020. Dalam tempoh ni, tak dapat dinafikan banyak perniagaan yang alami kerugian dan perkara ni sekaligus membuatkan para pekerja menghadapi kesulitan kewangan. Untuk meringankan beban rakyat, nampaknya kerajaan dah memperkenalkan beberapa inisiatif antaranya seperti diskaun bil elektrik sehingga 50% dan penangguhan bayaran pinjaman bank sehingga 6 bulan. Tapi masih ada juga komitmen kewangan bulanan lain yang kita kena bayar, contohnya macam sewa. Walaupun ada undang-undang yang boleh bantu kita semasa menghadapi keadaan tak dijangka, tapi persoalannya: adakah ia meliputi perkara seperti sewa? Untuk jawab persoalan ni, ia sebenarnya bergantung kepada cara macam mana perjanjian sewaan tu dibuat. Untuk gambaran yang lebih jelas, kita tengok dulu pusat membeli belah. Pusat membeli belah boleh ketepikan sewa kedai-kedai mereka Korang mesti ada terbaca berita yang melaporkan rangkaian pusat membeli belah seperti Sunway dan Tropicana dah membenarkan kedai-kedai yang beroperasi di dalamnya untuk tak bayar sewa masa PKP ni. Seperti mana yang kita tahu, mana-mana perniagaan sekalipun – pihak yang terlibat akan tandatangan kontrak ketika perjanjian dibuat. Dan di sini, mengetepikan sewa untuk kedai-kedai dalam pusat membeli belah sebenarnya memang ada dalam kontrak dan hal tu dikenali sebagai klausa force majeure. Force majeure ni membolehkan sesuatu kontrak itu diketepikan jika ia tak lagi berjalan disebabkan keadaan yang tak dijangka dan di luar kawalan pihak-pihak yang terlibat dalam kontrak. Akibat penularan COVID-19 dan pelaksanaan PKP ni – menunjukkan berlakunya keadaan yang tak dijangka. Di samping itu, untuk bergantung kepada klausa force majeure ni, korang kena buktikan yang ia mempengaruhi sifat kontrak, dan itulah sebabnya kontrak tak dapat dilaksanakan lagi. Dalam kes pusat membeli belah ni, sifat kontrak antara pemilik pusat membeli belah dengan penyewa adalah kedai tu kena beroperasi di dalamnya dan membuat keuntungan. Memandangkan perniagaan tidak penting dilarang beroperasi semasa PKP ni, ia masuk akal untuk sewa tu diketepikan disebabkan sifat kontrak tu tak terlaksana. Kontrak tu hanya akan bermula semula selepas PKP ni tamat dan perniagaan boleh berjalan seperti biasa. Tapi, perlu diingatkan juga yang tak semua kontrak sewaaan pusat membeli belah ada klausa force majeure ni. Jadinya, kalau macam tu – penyewa masih kena bayar sewa semasa tempoh yang sukar ni. Tapi ia berbeza dengan rumah kediaman Secara umumnya, tak seperti perjanjian sewaan pusat membeli belah, perjanjian sewaan rumah tak ada secara khusus sediakan keadaan tak dijangka (kalau perjanjian korang ada, tu kira bertuah). Seperti yang dikatakan di awal tadi, untuk pusat membeli belah, faktor utama penyewa sewa kedai adalah sebab nak jalankan perniagaan dan buat keuntungan. Jadinya, kalau mereka tak dapat jalankan perniagaan masa PKP, mereka tak penuhi kewajiban mereka di bawah perjanjian dengan pusat membeli belah. Tapi untuk perjanjian sewaan rumah, intipati kontrak tu hanya untuk korang tinggal dalam rumah dan bayar sewa bulanan untuknya. Kalau ada keadaan tak dijangka sekalipun, itu tak semestinya menghalang korang dari tinggal dalam rumah, lebih-lebih lagi masa PKP ni. Dalam artikel diterbitkan oleh The Star, peguam, Ong Yu Jian menjelaskan: ""Penyewa kediaman mungkin tidak dapat menghujahkan force majeure, kerana penyewaan mereka tidak dipengaruhi oleh PKP. Mereka masih boleh tinggal di rumah mereka. Kami tahu bahawa ketidakupayaan mereka untuk menjana wang bermakna kewangan mereka terjejas, tetapi ia bukanlah kesan langsung kepada penyewaan,"" Mengulang kembali apa yang dikatakannya: Agak mustahil untuk penyewa rumah bergantung kepada force majeure untuk diketepikan sewa atau ditangguhkan untuk beberapa bulan. Ini kerana, PKP ni tak menjejaskan sifat kontrak iaitu untuk tinggal dalam rumah dengan keluarga. Bagaimananapun, kalau tak ada klausa force majeure, ada satu lagi cara lain iaitu: doktrin kekecewaan (doctrine of frustration). Kekecewaan adalah prinsip umum di bawah undang-undang kontrak yang boleh membatalkan kontrak kalau ia menjadi mustahil untuk dilaksanakan. Force majeure sebenarnya adalah contoh yang tepat tentang klausa kekecewaan. Oleh itu, kalau tak ada klausa force majeure tertentu dalam perjanjian penyewaan, korang mungkin nak merujuk kepada prinsip umum itu sendiri untuk mendapatkan remidi. Tapi... benda ni taklah semudah yang dijangka. Dalam kes Guan Aik Moh Sdn Bhd v Selangor Properties Bhd [2007], Hakim Gopal Sri Ram ada letakkan 3 faktor yang harus dibuktikan untuk tuntutan kekecewaan berjaya. pihak-pihak dalam perjanjian itu tidak memasukkan klausa majeure force untuk keadaan yang tidak terduga (Covid-19, dalam hal ini) keadaan yang tidak dijangka tidak disebabkan oleh mana-mana pihak dalam perjanjian keadaan yang tidak dijangka mesti secara radikal mengubah perjanjian itu, sehingga tidak mungkin bagi pihak-pihak terlibat melaksanakan tugas di bawahnya Bagi Covid-19, dua faktor pertama boleh dibuktikan tanpa banyak masalah. Tapi faktor ketiga agak rumit sikit. Mahkamah kena diyakinkan yang korang berada dalam kesulitan kewangan serius, tak mungkin korang boleh bayar sewa dan tak ada cara nak memperbaiki keadaan korang tu. Tapi dalam kes Pacific Forest Industries Sdn Bhd & Anor v Lin Wen-Chih & Anor [2009], hakim ada kata: ""Kontrak tidak menjadi kecewa hanya kerana ia menjadi sukar untuk dilaksanakan. Sekiranya pihak tidak mempunyai wang untuk membayar hutangnya, ia tidak boleh dianggap mustahil untuk dilakukan kerana ia bukan kekecewaan."" Jadinya, dengan mengatakan adanya kesulitan kewangan sebagai alasan untuk tak bayar sewa mungkin tak akan membantu korang. Tapi, untuk orang yang betul-betul menempuh tempoh sukar, adakah ada jalan keluar untuk mereka? Tuan rumah boleh buat keputusan untuk ketepikan sewa Walaupun korang tak boleh paksa tuan rumah untuk ketepikan sewa masa PKP ni, tapi kalau tuan rumah korang tu baik hati nak membantu, dia boleh buat sendiri. Ini kerana, walaupun tak ada klausa dalam kontrak sewaan tentang keadaan tak dijangka, tuan rumah masih ada hak untuk ketepikan jumlah sewa tertentu masa PKP ni. Selagi mana, korang dan tuan rumah setuju dengan perkara tu, perjanjian sewaan tu boleh ditunda atau diketepikan sepenuhnya. Jadi, kalau korang betul-betul tak mampu nak bayar sewa untuk bulan ni, cubalah bincang baik-baik dengan tuan rumah supaya sewa tu diketepikan atau ditangguh sekurang-kurangnya beberapa bulan. Satu lagi, bagi perumahan awam – kerajaan ada hak untuk ketepikan sewa sebab merekalah tuan rumah. Contohnya, macam apa yang diumumkan oleh Menteri Besar Johor, bahawa kerajaan negeri tu tak akan kenakan apa-apa bayaran kepada penyewa Projek Perumahan Rakyat (PPR) dan Rumah Sewa Kerajaan (RSK) bermula April 2020 hingga September 2020."
"5 new updates Malaysians must take note during Phase 2 of the MCO Malaysians have been receiving numerous texts from the National Security Council (MKN), to know that what was initially supposed to be a two-week Movement Control Order is now being carried out for an entire month. Now this writer may or may not have lost track of time—but according to news sources and by counting days on the calendar we’re officially 20 days into the MCO as of today. So far, COVID-19 has claimed 61 lives and infected 3,662. With this worrying rise in the number of cases, we’re also facing another problem. While most of us are complying with the order by staying home, there have been several cases and reports on the non-compliance of the MCO by Malaysians. This just makes it harder to flatten the curve and will only lead to more positive cases in the coming weeks. In order to prevent this, the government has decided on stricter enforcement during the MCO. We have now kicked-off with Phase 2 of the MCO—basically an upgrade of the order—which can actually lead to severe punishments if the rules are broken. So here are some pretty important things you should know during second phase of the MCO: 1. Only 15 services are considered essential The government released a set of regulations to be followed during Covid-19, which are listed under the Prevention and Control of Infectious Diseases (Measures Within the Infection Local Areas) Regulations 2020. There are several services listed under the regulations, which are considered essential. So anyone who’s part of these essential services can continue performing their duties as usual during the pandemic. However in Phase 2 of the order, the government amended the regulations, and only 15 essential services are allowed to operate during the MCO. Some of this include—food, water, energy, communications and internet, security and defence, solid waste and public cleansing management, sewerage, healthcare, and transportation. Now there is a high chance this list would keep changing. There’s a clause in the regulation that states, the Minister has the right to approve more services to operate during the MCO. This will depend on the circumstances, as a service that is not essential now may be essential later (or the other way around). For instance, those under the agriculture and fisheries sectors are allowed to work during the MCO, as stated by Ismail Sabri yesterday. If you’re not part of the 15 essential services but you’re working during the MCO, the article below will tell you if you’re breaking the law or not. [READ MORE: Msians can work during the MCO despite not being in an essential service. Here's how] 2. Anyone coming from abroad are sent to quarantine centres Phase 2 of the MCO also established a mandatory 14-day quarantine order for Malaysians and visitors who return from abroad. This order does not just affect those who travel to Malaysia by flight, but also for those who travel by sea or land. For instance, if you or someone you know enters Malaysia from the Malaysia-Thailand border via a car, the government has ordered the individual to be quarantined immediately at any of the quarantine centres provided. At the moment, Malaysia has 107 quarantine centres for those who traveled to the country. The government is expected to open 551 quarantine centres soon as part of Phase 2 of the MCO. These quarantine centres are expected to accommodate up to 40,000 people in the event the number of cases increase. 3. There are time and distance limits to get food and groceries The second phase of the MCO also brings changes to the operation timings of grocery stores, restaurants and even food delivery services. The time limit has been set to 8am to 8pm everyday. If you’re considering to have your food delivered to your home, the same rule applies, as all delivery services can only operate until 8pm. As for takeaways, you’re only allowed to travel up to 10km from your home to buy food. The amended regulations say that this distance limit also applies to groceries and other necessities. So, you won't be able to do your grocery shopping at night. The only time this 10km restriction does not apply, is in the case of an emergency. The authorities have the discretion to allow someone to move beyond the 10km restriction set, if they are in a state of an emergency or have valid documents or evidence that show a need to travel further. 4. Face masks are sold at a fixed price From the time Covid-19 started, people have been frantically trying to get their hands on face masks. Due to the great demand for masks, they almost always end up getting sold out. To make things worse, several parties have started taking advantage of this demand by increasing the price of face masks. This led to fixing a ceiling price for face masks at RM1.50 per piece. The requirement to have a fixed price for face masks, is in accordance with the Price Control (Controlled Prices) Order 2009 and the Price Control (Maximum Pricing) (No.2) Order 2009. However, the government did make an announcement that the price will be reviewed from time to time. [READ MORE: Here's how Malaysians can report sellers who sell face masks at ridiculous prices] If you come across any local seller who’s selling face masks at a higher price, you can file a complaint with the Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna aka KPDNHEP. Besides face masks, you can check out their website for other price-controlled items during the MCO. 5. Vehicles can only move during certain hours The second phase of the MCO also sets restrictions to vehicle movement. Now this would depend on what type of vehicle is on the move, as different vehicles are allowed to move at different timings. For private vehicles owned by individuals, there is a 10km limit as mentioned earlier and only one person is allowed per vehicle. As for taxis and e-hailing services such as Grab car, the MCO set a daily operation limit—which is from 6am to 10pm. As for public transportation vehicles such as buses and trains, the operational hours are from 6am to 10am and 5pm to 10pm. Commercial vehicles used for logistics and delivering essential goods are allowed to operate from 7am to 7pm. Petrol stations also have new operation hours—as they can be opened from 8am to 8pm everyday. Now, what happens if you go against these regulations during the second phase of the MCO? You can end up in jail if you break the MCO orders The second phase of the MCO not only has additional regulations, but stricter enforcement as well. There have been approximately 3000 arrests made so far on those who have defied the MCO regulations. Most of these cases are being investigated under the Prevention and Control of Infectious Diseases Act 1988 and the Prevention and Control of Infectious Diseases Regulations 2020. Under Section (7)(1) of the Prevention and Control of Infectious Diseases Regulations 2020, it’s stated that: “Any person who contravenes any provision of these Regulations commits an offence and shall, on conviction, be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both.” The Act essentially states that anyone who fails to comply with the MCO will be fined not more than RM1,000, prison sentence of not more than six months, or both. So the best thing we can do now, is to comply with the MCO and the regulations that have started in Phase 2 by simply, staying at home. [READ MORE: What are your rights if you get arrested by the PDRM?]"
"大马人可以如何举报售卖天价口罩的无良商家 [Click here for English version] 自从2019新冠肺炎病毒的崛起，世界各地的人都开始大肆囤货，尤其这两样物品（除了厕纸）：口罩和消毒免洗洗手液。而大马人也不例外，也有着同样的举动。为了对抗病毒，购买口罩和消毒免洗洗手液的人也大幅增加了，导致这两样物品的需求量极速上升。这些物品到处都买不到了，而那些还有货的商家却纷纷涨价...涨了两倍甚至三倍。 口罩和消毒免洗洗手液作为抗疫必需品，即便涨价，人民还是愿意花钱购买。但人民可能无意间在助长这些无良商家的不良风气。继续向他们购买只会让他们把价钱炒的更高甚至天价。比如有些商家把一盒口罩卖上几百零吉。 这种现象对于消费者的我们相当无奈，不过好消息是有关单位已开始制止无良商家，并以开高价的罚单来惩罚这些可恶的行为。那么作为消费者的我们能做什么才能让这些无良商家绳之于法呢？在那之前，你可以·通过以下资讯清楚了解口罩和消毒免洗洗手液的正确售价。 口罩是统制品，免洗洗手液却不是 目前为止，政府只有对口罩定价了，可是消毒免洗洗手液却没有。因为它有分很多不同等级，所以要依据等级定价难免会比较困难。对于口罩的价位，必须遵从管制口罩价位的法律，Price Control (Controlled Prices) Order 2009 和Price Control (Maximum Pricing) (No.2) Order 2009。从2020年1月至3月，政府已无数次调整了口罩的价位，截至今，现在口罩的价位有如以上的图片。既然政府已经再次重新确定了以上不同口罩的价位，任何标价高于法定价位的商家就等于触犯了法律。 Price Control and Anti-Profiteering Act 2011，第11条款说明了： 任何不根据法定的价位或实时改变的价位，售卖或建议别人售卖统制品的人将被作为违规者。法定价记录在第4，5和7条款里面。 第18条款（同样的法律）说明了违规的罚金： 如果卖家是已注册的商家，初犯者最高罚金是RM500,000；再犯，最高罚金是RM1,000,000。 如果是独立，没有买卖生意的人，初犯者最高罚金是RM100,000或坐牢不超过3年，或两者兼施；再犯，最高罚金是RM250,000或坐牢不超过5年，或两者兼施。 很不幸地是这些法律对网路卖家是无效的。根据马来西亚药剂协会的主席(Malaysian Pharmaceutical Society) Amrahi Bruang, 在一篇文章里提到，网络卖家实在难被追踪，所以很难把他们绳之于法。可是！我们有个小建议/贴士：你还是可以把这些无良卖家向有关平台（比如脸书）举报，那么他们的帖文可能会被删除。 *鼓励身边的人或受害的人一起举报比较有效，让他们的帖文被脸书或其他网路平台更快速地删除 然而，不只卖家会受到法律的裁判，买家也可能遭殃：如果你购买了比法定价还要高的商品，你也其实在触犯着法律。Price Control and Anti-Profiteering Act 2011，第12条款说明了： 任何购买或鼓励别人购买，用更高的价位来购买已定价的任何统制品的人，将被视为违规者。法定价记录在第4，5和7条款里面。 消费者如果用比法定价更高的价钱购买商品的话，罚金是和以上（第18条）是一样的。唯一能让你辨明自己的理由就是-- 你真的不知道商家已把价位提高到超过政府法定的价位。你买的时候不知道自己买贵了，那么你可能不会被罚钱。假设你已经知道商家标高价钱（比政府定的价位）还要高，你还和他购买，那你很可能会被罚钱。 这时KPDNHEP可以拯救你 Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna (KPDNHEP), 也就是马来西亚国内贸易及消费人事务部。KPDNHEP是一个专门负责国内交易和管理消费者权利的政府机构。他们最主要目的是确保某些物品的售卖价位不超过已设定好的定价。这样大马人就不会被强迫付比平常价还要高的价钱来购买必需品。除了口罩，你也可以到他们的官网查看，还有哪些物品也是一样已经定价了。 当然这个机构也不只是控制物品的价位--他们也会向随意调高价钱的无良商家采取行动。所以，如果你发现周围有这种商家，你可以向KPDNHEP举报。你可以通过以下方式来投报： 拨打热线1-800-886-800 网上投诉系统 手机app 官方面子书 官方推特(Twitter) Whatsapp至019-2794317 确保你收集越多证据越好，比如卖家的个人资料或是照片，那样KPDNHEP才能方便调查你的案件。 商家可以限制你购买的份量 为了遵从政府定下的价位和确保货源充足，可以供应给全部人，有售卖口罩和消毒免洗洗手液的商家可以只是卖给你特定数量的商品。你可能注意到不少商家有贴着通告，通知消费者一人只能购买特定数量有关的商品--这些都是合法的行为。有名的网络购物平台Lazada在2月的时候也限制了消费者购买量。本地超级市场Mydin也整理了一系列的商品只让每人最多只能购买2个，其中也包括口罩和免洗手液。 即使你光临的商家没有类似的限制也不要大量地购买或囤货。我们大家都可以是理智和文明的人，请只购买你需要的份量。卫生总监诺希山指出健康的人无需戴口罩，只有生病的人或面对生病的人才需要戴口罩。大多前线服务者，尤其医护人员极度缺少口罩和其他防护品，所以我们应该尽责不多买。以确保真正需要的人有足够的资源。"
"Msians can work during the MCO despite not being in an essential service. Here's how As much as many of us love being at home, some of us are waiting for this MCO to end so that we can go back to work. All of us know that during this MCO, we’re not supposed to leave our homes unless necessary, and only those who work in essential services are allowed to go to their workplaces. However, there have been a number of people who have claimed that they’ve been made to go to work despite not being in an essential service. We got quite a few of these comments on our page: At first glance, it does seem like these employers are breaking the law for forcing employees to come to the office, unless of course, they’re in an essential service. But what exactly is an ‘essential service’? The first thing that would come to our minds are professions such as doctors and nurses, police and army officers as well as food and grocery outlets. But the definition of an ‘essential service’ is actually a lot broader than we think. The list of essential services isn’t really fixed Just as the MCO started, the government released a set of regulations to be followed during Covid-19, known as the Prevention and Control of Infectious Diseases (Measures Within the Infection Local Areas) Regulations 2020. Under these regulations, there’s a list of a services that are considered essential, and so anyone working under those can continue performing their duties as usual during the pandemic. Here’s the full list: We have an Industrial Relations Act 1967 (IRA) that also has a list of essential services. But since the 2020 Regulations are newer, we’ll have to go by the list of essential services in that one. This new list is significantly longer than the one in the IRA, and the government has added some new essential services, such as hotels and e-commerce to the list. If you look at number 22 in the image above, you’ll notice that the Minister has the right to approve more services to operate during the MCO. This will depend on the circumstances, as a service that is not essential now may be essential later. So, even if your line of work does not fall under the list of services you see above, if you’re currently going to work, it may be because your job is now considered to be essential, and your employer has obtained the permit for you to work during the MCO. Besides the permit from the government, your boss has to provide you with a letter of authorization from the company stating why you need to work. This letter is for you to show the police if you are stopped at a roadblock during the MCO. Basically, it’s not uncommon for certain professions to be working during this period, even if they usually are not essential. But the government has ordered that even those who can go to work should be well-protected. Employers of such services are supposed to minimise the number of employees they have in the office and provide hand sanitisers and face masks for them. But, what about other companies that totally can’t be considered as essential services—can they go to work if they really need to? Some staff can come to work on certain days only While many companies have resorted to working from home during the MCO, there may be some forms of work that are just impossible for employees to do from the comfort of their homes. One good example of this would be the finance and HR departments of companies, especially when it’s time for salary payouts. So, on March 30th 2020, the Human Resource Ministry said that you could to go work if you worked under these specific departments in your company. However, there are strict conditions to be met: only TWO staff members can enter the office you can only enter the office for ONE day at the end of the month (the 30th or 31st) your boss must give you a letter of authorization stating why you need to work for that day So, if you absolutely need to go in to the office, and your job is tied to keeping the company afloat, you are allowed to clock in. Just ensure that you meet the requirements above so that you don’t get caught breaking the law. If you’re being forced to work, make a police report If you’ve read this far and you’re being made to go to work (in your office) even though you: don’t belong to an essential service OR don’t need to go in to the office to process payrolls or other important functions don’t have a permit or letter of authorisation to work during the MCO It only means that your boss is breaking the law by not letting you work from home. Since the MCO began, the Home Ministry has reported that many employers have been misusing the term ‘essential service’ and issuing letters of authorization for their staff just to make them come to work. If this is what your boss has been doing, you’ll need to quickly get in touch with the police themselves to deal with the matter. Under the 2020 Infectious Disease Regulations, an employer who deliberately makes his staff come to the office when they’re not supposed to will be fined heftily or even jailed. Section 7 of the Regulations says: Any person who contravenes any provision of these Regulations commits an offence and shall, on conviction, be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both. But that section also goes on to say: If an offence is committed by a body corporate, any person who, at the time of the...offence was a director, manager, secretary or other similar officer of the body corporate or was purporting to act in any such capacity or was in any manner or to any extent responsible for the management of any of the affairs of the body corporate or was assisting in such management—(a) may be charged severally or jointly in the same proceedings with the body corporate. So, even if it was some other authority in your company that’s forcing you to work in the office, they can be penalised the same way. [READ MORE: Managers can be jailed for opening the office during the movement order in M'sia"
"Apa korang boleh buat kalau majlis kahwin dibatalkan kerana Perintah Kawalan Pergerakan? [Click here for English version] Ketika artikel ni ditulis, dah dua minggu lebih Perintah Kawalan Pergerakan (PKP) dilaksanakan di Malaysia. Tak dapat dinafikan juga ramai pihak yang terjejas akibat PKP ni, khususnya kepada para peniaga kecil, penjaja dan yang berkaitan. Selain tu, kepada yang dah merancang untuk mengadakan majlis pun terjejas sama – macam majlis perkahwinan yang terpaksa dibatalkan akibat PKP ni. Ini kerana, PKP dah melarang sebarang perhimpunan ramai, termasuklah untuk majlis perkahwinan, aktiviti keagamaan, majlis pengebumian dan sebagainya di sepanjang tempoh perintah ni. Tapi selalunya, persediaan untuk majlis-majlis besar macam perkahwinan ni ambil masa yang lama atau lebih kurang 6 bulan sebelum berlangsung. Antara persiapan tu termasuklah seperti tempahan tempat, tempahan persembahan, katering makanan dan sebagainya. Dan disebabkan majlis perkahwinan ni terpaksa dibatalkan sepanjang tempoh PKP, muncullah persoalan: boleh ke kita dapat bayaran balik (refund) atau tangguhkan tempahan yang dah dibuat tu? Pertama sekali, baca kontrak korang tu! Boleh dikatakan, sain atau setuju dengan kontrak ni dah jadi rutin biasa kita semua. Tapi biasanya, kita tak ada masalah sangat dengan pihak yang satu lagi sebab antara mereka dengan kita memang mampu penuhi perjanjian yang ada. Tapi disebabkan PKP yang melarang kita mengadakan majlis perkahwinan ni, kita terpaksa membatalkan kontrak yang dibuat dengan pihak lain tu. Walaupun begitu, perkara ni jadi bukan disebabkan salah kita atau pihak yang lagi satu tu. [BACA LAGI: In Malaysia you can get out of a contract if both sides made a mistake] Jadinya dalam situasi ni, tak ada mana-mana pihak yang bersalah. Tapi disebabkan keadaan yang tak dijangka dah berlaku, ia menjadikan pihak-pihak yang terlibat tak dapat memenuhi kontrak dan ini membuatkan kontrak tu menjadi – kekecewaan kontrak atau frustration of contract. Bagaimanapun, terdapat sesetengah kontrak yang ada klausa-klausa khas yang menyatakan sesuatu tugas tu tak dapat dilaksanakan kerana berlakunya sesuatu perkara yang tak dijangka. Dan perkara ni dikenali sebagai ‘Force Majeure’. Sesetengah kontrak lebih memahami dari yang lain Kalau kontrak korang ada yang disebut sebagai klausa ‘force majeure’, korang sebenarnya bertuah. Sebabnya, klausa tu bermaksud – kalau sesuatu yang tak dijangka berlaku, ia akan menghentikan semua pihak dari melakukan apa yang dah dipersetujui dalam kontrak, dan kontrak pula boleh dibatalkan. Tapi, klausa ni agak lebih membantu kepada para vendor atau penyedia perkhidmatan daripada pelanggan tu sendiri. Sebab itulah ia selalu ada dalam kontrak komersial kerana dah jadi perkara biasa yang pelanggan akan menyaman penjual/penyedia perkhidmatan dan bukan sebaliknya. Tapi oleh kerana kita berada dalam tempoh PKP yang disebabkan oleh pandemik COVID-19, kewajiban kontrak antara banyak pihak dah dibatalkan kerana PKP. Jadi dalam situasi macam ni, berguna juga korang periksa kontrak korang tu, untuk tengok sama ada atau tak klausa untuk keadaan tak dijangka macam ni. Klausa ‘force majeure’ ni kadang-kadang kita boleh nampak di bawah klausa penamatan perjanjian, di mana akan membantu untuk proses rundingan di masa akan datang. Klausa ni bertindak untuk mengecualikan apa-apa liabiliti jika pihak lain (vendor) yang membatalkan sebahagian daripada perjanjian untuk majlis atau kenduri korang. Tapi, kalau kontrak korang tu tak ada klausa ‘force majeure’, masih ada cara lain untuk selesaikan situasi ni. Kontrak korang kewcewa macam korang juga Katakanlah korang dah baca kontrak dan tak nampak apa-apa klausa yang bercakap soal keadaan tak dijangka (atau ‘force majeure’). Maknanya sekarang, kontrak korang tu dah jadi kecewa (frustration of contract) yang membuatkannya tak sah lagi. Kontrak boleh jadi kecewa ni bila kewajipan di bawahnya menjadi sama ada mustahil atau tak sah untuk dipenuhi kerana beberapa keadaan yang tak dijangka atau tak dapat dielakkan. Seksyen 57(2), Akta Kontrak menyatakan: Suatu kontrak untuk melakukan suatu perbuatan yang, selepas kontrak itu dibuat, menjadi mustahil, atau oleh sebab suatu kejadian yang pembuat janji itu tidak dapat mencegah, menjadi tidak sah, maka kontrak itu menjadi mustahil atau tidak sah. Akta ni pada dasarnya mengatakan bahawa, walaupun kontrak yang sah dah dipersetujui, tapi kalau peristiwa berikutnya membuat pelaksanaan kontrak itu tidak mungkin atau tidak sah, kontrak itu dipanggil sebagai 'kecewa'. [BACA LAGI: If a freak accident makes you break a contract, can you get sued under M'sian law?] Pada asasnya ada 3 syarat yang ditetapkan dalam kes Guan Aik Moh (KL) Sdn Bhd & Anor v Selangor Properties Bhd untuk membuatkan sesuatu kontrak tu menjadi kecewa: Acara (keadaan yang tidak dijangka) tidak dinyatakan atau diramalkan dalam kontrak. Acara (keadaan yang tidak dijangka) tidak diinduksi oleh mana-mana pihak. Acara (keadaan yang tidak dijangka) adalah sama sekali berbeza daripada apa yang dinyatakan dalam kontrak. Mungkin hal ni masuk akal jugalah kalau kita kaitkannya dengan situasi PKP sekarang. Kalau PKP bukan sesuatu yang korang atau pihak satu lagi jangka akan berlaku, dan PKP bukanlah mana-mana pihak yang menyebabkannya berlaku dan PKP lah yang melarang korang untuk buat himpunan ramai yang membuatkan korang terpaksa membatalkan kenduri kahwin. Makanya, korang dan pihak yang lagi satu tak dapat menjalankan apa yang ada dalam kontrak disebabkan ia mustahil di sepanjang tempoh PKP. Tapi, kalau mana-mana syarat yang disebutkan di atas tak ada, maka kontrak tu tidak boleh dikatakan kecewa. Jadi, persoalannya sekarang adalah, macam mana korang boleh mendapatkan bayaran balik atau meneruskan majlis korang tu di hari kemudian? Berunding semula dengan pihak lagi satu Kalau korang buat keputusan untuk tangguhkan dulu segala persiapan kenduri korang tu sehingga pendemik ni tamat, korang boleh pilih untuk berunding semula tentang terma-terma dengan pihak satu lagi. Dalam masa sama, ia juga berikan peluang kepada pembekal perkhidmatan seperti pengurusan dewan atau katerer makanan untuk memulakan rundingan semula terlebih dulu. Antara perkara yang mungkin boleh dibangkitkan semasa rundingan semula tu adalah tentang penamatan kontrak untuk tempoh masa atau memanjangkan masa untuk mempersiapkan acara kerana PKP. Bagaimanapun, kalau korang mempertimbangkan untuk membatalkan majlis kerana PKP, korang boleh dapatkan duit korang semula yang dah dibayar – selagi perkara yang dinyatakan dalam kontrak itu belum dijalankan. Hal ni kemungkinan besarnya akan melibatkan tuntutan mahkamah, di mana mahkamah boleh memerintahkan pihak lagi satu untuk membuat bayaran balik bagi kontrak yang dah jadi kekecewan kontrak. Jadi, kalau korang menghadapi masa yang sukar dan kena mengubah segala perancangan kerana PKP ni adalah lebih baik korang selesaikan isu ni di luar mahkamah je. Sebabnya, ini bukan salah korang atau pihak satu lagi tu, dan ia baik juga daripada terpaksa melalui proses mahkamah yang panjang. Tapi untuk yang terbaiknya, korang juga dinasihati untuk berbincang dengan peguam tentang hal ni sebab keadaan ini bersifat subjektif dan berbeza dari segi kes ke kes."
"Msian govt is subsidising workers salaries. Here’s how employers can sign up for it Note: Article has been updated to reflect the increase in the wage subsidy programme, announced on 6 April 2020. As we write this, Malaysia’s Movement Control Order (MCO) is now in the second week. The MCO has slowed our economy down, with the government estimating we would need 6 months to recover from it. Companies feeling the pinch might feel the need to cut costs. Right now, there are ways to reduce overheads, such as asking your landlord for a discount on your rent. However, if the cashflow in isn’t great, your employer might feel it’s necessary to start cutting your wages, or worse, fire you or one of your colleagues. But your employer might not need to resort to it just yet. To help with the financial issues companies are going through, the Prime Minister announced the Wage Subsidy Programme under PRIHATIN. If you’re reading this, you can probably sign up soon because... Your employer can sign up for it from 1 April The aim of the Wage Subsidy Programme is to avoid employees being fired and losing their income. To do so, the government will provide a subsidy between RM800-RM1200, depending on the number of employees in the company, for the next three months. This is an increase of the subsidy announced previously, which is RM600 per employee. Unlike a few other financial schemes under the PRIHATIN, it is not automatic and employers would need to register to be eligible for it. Employers can sign up at PERKESO’s website starting from 1 April 2020. Do note that registering on the first day may be difficult, due to the high number of visitors on the site. If you can’t access it in the day, we suggest trying it during off-peak hours such as late night or early mornings. It will potentially be a short wait for the payment, as the subsidy will be transferred to the employer’s account within 7 days of submitting the application. The amount given will also be based on the number of eligible employees, as not every employee would qualify for the subsidy. To qualify, the company and employee must meet these requirements: The subsidy is only for employees earning below RM4,000 The employees have been registered and contributed to the Employment Insurance Scheme (EIS) The company has seen a 50% decrease in income since 1st January 2020 The amount of subsidy given will be tiered depending on the size of the company. Do note that companies can only claim subsidies for up to 200 workers earning below RM4,000. Companies with more than 200 employees are given RM600 for each eligible employee. Companies with 76-200 employees are given RM800 for each eligible employee. Companies with less than 75 employees are given RM1200 for each eligible employee. Let’s give a quick example of how this works. Suppose a company has 250 employees, but only 180 employees earn below RM4,000. The company will be given a subsidy of RM600 x 180 = RM108,000 per month. This is assuming the workers have been registered to the EIS, and the company’s income has went down by 50% since January. But there’s one more requirement companies need to fulfill during these three months, which is that... Your boss can’t fire you or cut your wages When your employer signs up for the Wage Subsidy Programme, there are three things they cannot do: They cannot lay off workers They cannot force workers to take unpaid leave They cannot cut their workers wages Employees also must retain workers for six months – three months under the wage subsidy, then three months after that. This programme is an extension of the Employee Retention Scheme (ERS), which was introduced on 16 March. Within the ERS, the Human Resources Ministry has set out the punishments for not the following their guidelines. Employers who did one of the three things can be fined RM10,000 for each offence committed. If you feel that your employer has gone against the guidelines, you can make a complaint at the Human Resource Ministry by calling 03-8886 5192. [READ MORE: Here's how Malaysian employers might break the law during the COVID-19 outbreak] Other measures to help with cashflow issues Wages aren’t the only concerns for an employer. There are other costs in keeping a company running such as EPF contributions and electricity bills, and these all cost money. So besides wage subsidies, there are also other measures planned to help employers with cashflow issues during the MCO. EPF is introducing the Employer Advisory Services (EAS) programme on 15th April 2020. Under the programme, EPF will assess how a company is doing during the MCO, and offer customised plans for their EPF contributions. So if monthly payments of EPF contributions are starting to affect the cashflow, the company could potentially defer payment or have the payments staggered or restructured. Companies are also exempted from paying the Human Resources Development Fund (HRDF) fee for the next six months, beginning 1st April. It can be a small amount, as the levy is between 0.5%-1% of their employee payroll, but every cent counts right now. There is also a discount on electricity bills for six months starting from1st April to 30th September. Six industries directly impacted by the COVID-19 pandemic will be given a 15% discount. These industries are: Hotel operators Travel and tourism agencies Shopping complexes Convention centres Theme parks Local airline officers Other commercial, industrial and agricultural sectors not listed above will receive a 2% discount on their electricity bills. Hopefully, these measures will give us enough lift to stay afloat during the pandemic."
"Here's how Malaysians who have balcony karaoke sessions might be breaking the law Staying home for almost two weeks now might have made us get creative to kill boredom and fill all that time we have. Some might take this positively, and catch up on everything they’ve been wanting to do from the comfort of their homes. But there are also others (this writer included) who are being cooped indoors far too long...and do not remember what daylight looks like. Now whether we like it or not, the government has enforced the Movement Command Order (MCO) which has now been extended until the 14th April 2020. This was decided due to the high number of COVID-19 infection cases across Malaysia—which is continuously spreading. Now since we can’t hangout with our friends and have mass gatherings, some Malaysians decided to get creative during this partial lockdown, by holding balcony karaoke sessions from their apartment units. If you haven’t seen the viral video that mirrored Italians singing from their balconies during the COVID-19 lockdown—you can watch it here. Now we don’t want to be a killjoy, but the last thing we want is for PDRM to come knocking on someone’s front door, asking them to stop singing. So the question we have at hand is: Is it legal for Malaysians to sing from our balconies during the MCO? Your karaoke sessions can be a nuisance to your neighbours Sometimes, we might annoy our neighbours by doing certain things they may not like. Some of this include making noise, cooking something that smells foul or even letting your pet out to destroy your neighbour’s little garden. Now if it happens once in a while and isn’t significant enough to be complained about, your neighbour may choose not to make a big deal out of it. However, if the annoyance happens frequently and it bothers your neighbour’s daily life, then you might be committing a tort of private nuisance. [READ MORE: What is a Tort?] Nuisance is a legal term which means you’re interfering with your neighbour’s enjoyment in his property and it causes him some form of harm. There are 2 types of nuisances: private and public nuisance. For the purposes of this article, we are only looking at private nuisance, which occurs when someone does something which interferes with your right to enjoy your property—in other words, living in peace. To win an argument in court for a case of nuisance, your neighbour must be able to show that your balcony karaoke session (in this situation) is unreasonable, and is interfering with your neighbour’s enjoyment of his property. Now it obviously isn’t a crime to sing from your balcony with other neighbours. However, if it is done in a certain way or at a certain time, this can amount to nuisance—where your neighbour who hates your singing can report against you. But even this can depend on what kind of a balcony you’ve been singing from... If you live in a condo, there are different laws Since most of these karaoke sessions have happened in apartments and condos, we’ll be focusing on strata properties in this article. If you live in a strata property—such as, high rise apartments/ flats/ condominiums/certain gated and guarded landed properties—you’ll be bound by laws and regulations set out in the Strata Management (Maintenance & Management) Regulations 2015. In some cases your tenancy contract/housing contract— either the Deed of Mutual Covenants and Sales and Purchase Agreement will also spell out the ‘house rules’ that residents must follow. For most strata properties, there would normally be a joint management body, where residents can raise issues and make complaints. The management body basically has the authority to enforce by-laws to prohibit residents from creating nuisance. [READ MORE: 4 things your condo management can sue you for in Malaysia] So if your neighbour who doesn’t like your singing complains to the management body, they can take action against you by giving you a fine—instead of bringing in lawyers or going to court. But for your neighbour to be successful with his nuisance claim against your singing, he needs to prove the following elements in his case: There is an interference with the enjoyment of his property The interference was unreasonable The interference caused him damage (perhaps an earbleed in this circumstance) If your neighbour can prove these three elements happened because of your balcony karaoke session, they might be able to sue you for money. But here’s another important thing the law says about nuisance: The interference must be a result of a continuous action, instead of a one-off incident. So if you and your other neighbours only had one karaoke session, there isn’t much your sulky neighbour can complain about. But if this has happened more than once, certain measures can be taken against those who created the nuisance. Now what if the tables turn and YOU ARE that sulky neighbour! It’s okay to have lively neighbours (sometimes) At the end of the day, it’s not just the law that stands but it’s also the sense of community that neighbours should have with each other. For the most part there should be some sense of give and take, especially during an unexpected time like this—where we’re all going to have to stay at home for almost a month. So before you go off to complain about your neighbours’ and their karaoke sessions, perhaps it might help to amicably talk things through with them first. However, if you’re unable to convince them to stop their balcony karaoke sessions (assuming it happens regularly at odd hours), you can always lodge a complaint with the management body or with the local authorities (ie Majlis Bandaraya/ Majlis Perbandaran). If you’ve used up all diplomatic avenues, then of course there’s always the courts to resort to. But remember to collect enough evidence as you really need to prove nuisance to make your case! Ultimately, the courts will decide if something your neighbour created nuisance, based on the facts and circumstances."
"Can Malaysian tenants get a discount on rent during the MCO? At the time of writing, it’s Day 12 of the Movement Control Order (MCO). What was initially supposed to be a two-week order will now be carried out for a whole month. During this period, many businesses may not be making enough profit, and this may lead to employees going through some financial difficulty. So, to ease the financial burden of Malaysians, the government has implemented some measures, such as a 2% discount on electricity bills and a 6-month bank loan deferring plan (you can read the full list here). But there are also other monthly financial commitments that we will have to still pay for, such as rent. There are laws which can help us during unforeseen circumstances, but do they cover things like rent? Actually, it all boils down to the way your tenancy agreement is drafted. But to illustrate this, we’re first going to talk about… malls. Yes, malls. Malls can waive the rent for their outlets You may have come across several news articles that talked about how some mall chains, such as Sunway and Tropicana, have allowed outlets operating within them to not pay rent throughout the MCO. We know that in any business dealing, the parties involved would have to sign a contract to make the deal official. The fact that malls can waive the rent for its outlets is actually because in these contracts, there is something that is known as a force majeure clause. A force majeure clause will state that that a contract can be set aside if it no longer can be performed due to an unforeseen circumstance that is beyond the control of the parties to the contract. The Covid-19 pandemic—and the MCO that has been implemented as a result of it— is an example of an unforeseen circumstance. But besides that, to rely on a force majeure clause, you would have to prove that it affects the nature of the contract, and that is why the contract can’t be performed anymore. In the case of malls, the nature of the contract between the mall owner and tenant is for the tenant to operate an outlet in the mall and make profit from that. Since non-essential businesses cannot operate during the MCO, it would make sense for the rent to be waived since the essence of the contract has now been put on hold. The contract would then be ‘restarted’ once the MCO is over and businesses can operate as usual. It’s worth mentioning that not all mall tenancy contracts have a force majeure clause. So, in such cases, tenants would still need pay their rent during a difficult period. It’s different with residential homes Generally, unlike mall tenancy agreements, home tenancy agreements don’t specifically provide for unforeseen circumstances (if yours does, then lucky you!). As we mentioned earlier, for malls, the very reason tenants rent outlets in them is to run a business and make profit. So if they can’t run their businesses due to the MCO, they can’t fulfill their obligations under the mall tenancy agreement. But with a home tenancy agreement, the essence of the contract would just be for you to live in a home and pay a monthly sum for it. The unforeseen circumstance doesn’t prevent you from living in your home. In an article by The Star, lawyer Ong Yu Jian clarified this further: “Residential tenants may not be able to argue force majeure, because their tenancy is not affected by the MCO. They can still live in their house. We know that their inability to make money means their financials are affected, but it is not a direct effect on the tenancy,” So, to reiterate what he said: It would be almost impossible for a home tenant to rely on force majeure to have his rent waived or defer paying it for a few months because the MCO does not affect the nature of the contract: to live in that house with his family. However, if there is no force majeure clause, there is another way out: the doctrine of frustration. Frustration is a general principle under contract law which can totally cancel a contract if it becomes impossible to perform. Force majeure is actually a just specific example of a frustration clause. So, if there is no specific force majeure clause in your tenancy agreement, you may want to refer to the general principal itself for some remedy. But… this isn’t as easy as it sounds. In the case of Guan Aik Moh Sdn Bhd v Selangor Properties Bhd [2007], Judge Gopal Sri Ram laid down 3 factors that must be proven for a successful claim of frustration. the parties to the agreement mustn’t have included a force majeure clause for unforeseen circumstances (Covid-19, in this case) the unforeseen circumstance mustn’t have been caused by either party to the agreement the unforeseen circumstance must radically change the agreement, making it impossible for parties to perform duties under it For Covid-19, the first two factors may be proven without much trouble. But the third factor is where it gets a bit tricky. The court will have to be convinced that you are in such grave financial difficulty that is just impossible for you to pay your rent, and you have no way to remedy your situation. But in Pacific Forest Industries Sdn Bhd & Anor v Lin Wen-Chih & Anor [2009], the judge said: “A contract does not become frustrated merely because it becomes difficult to perform. If a party has no money to pay his debt, it cannot be considered impossible to perform as it is not frustration.” So, citing financial hardships as a reason to not pay your rent may not be of much help to you. But for people who really are having a tough time making ends meet, is there a way out? Landlords can still decide to waive the rent Although you can’t force your landlord to waive your rent during the MCO, if your landlord himself wants to help you out of the kindness of his own heart, he can. Even if there is no clause in your rental agreement which provides for unforeseen circumstances, your landlord still has the right to waive the rent for a certain amount of time. As long as you and your landlord both agree to this, the rental agreement can be put on hold or completely set aside. So, if you’re really unable to pay your rent for this month, try and talk to your landlord to see if you can have your rent waived, or at least deferred to a few months later. The government also has the right to waive rent for public housing, as they are the landlords for such houses. On 29th March 2020, the Menteri Besar of Johor announced that the state government would not charge any rent to tenants of the People’s Housing Project (PPR) and Government Rented Houses (RSK) in Johor from April 2020 to September 2020."
"Here's what you can do if someone isn't revealing they're COVID-19 positive in Malaysia COVID-19 has claimed 24 lives and infected 2,301 so far. With this worrying rise in the number of cases, we’re also facing another problem: Patients are not revealing about being in contact with someone who has tested positive for the virus. Now this has caused hospitals to shut down, and medical staff are urging people to comply with the regulations to prevent more positive cases from coming up. So imagine this scenario: You’re 10-days into the Movement Order and you’ve been staying at home all day. You can’t help but hear your neighbour cough every other minute. You also remember him telling you, that he went abroad for a business trip 2 weeks ago. You can’t help but wonder now if he might be infected with the virus. What’s more worrying is, he occasionally goes grocery shopping at a nearby market. As a concerned citizen and neighbour, you wonder if you can do anything to stop him from spreading any infection he might potentially carry—and isn’t seeking any treatment for it. But before we know what steps to take, let’s briefly look at what the law says if a person who is infected with COVID-19, does not reveal himself to the authorities. Refusing to inform authorities is a crime The last thing any sick person would want is to go to jail for being sick. However, there are some cases where Malaysians refuse to reveal that they might possibly have contracted the viral infection from someone who has it. Such a case was reported in Kedah, where a private hospital had to be shut down for 2 days, because a Malaysian woman did not reveal that she had been in contact with a relative who was tested positive for COVID-19. Now this is potentially an offence under the Prevention and Control of Infectious Diseases Act 1988. Section 12 of the Act states as such: “No person who knows or has reason to believe that he is suffering from an infectious disease shall expose other persons to the risk of infection by his presence or conduct in any public place or any other place used in common by persons other than the members of his own family or household.” Anyone who thinks that he might possibly have the COVID-19 infection should not simply move around, especially in public places. Doing so can carry a fine, imprisonment up to 2 years or both. Now if a person has been tested positive but refuses to follow the quarantine order given, the law has penalties for such cases too. Section 271 of the Penal Code states that: “Whoever knowingly disobeys any rule lawfully made...into a state of quarantine...or for regulating the intercourse between places where an infectious disease prevails and other places, shall be punished with imprisonment for a term which may extend to six months or with fine or with both.” If a person breaks the quarantine rule despite being asked to do he can be imprisoned up to 6 months, given a fine or both. When a person is given a quarantine order, this would most likely be due to the exposure to someone who has been tested positive for COVID-19. The Ministry of Health has certain guidelines on how to manage those who have been exposed to positive COVID-19 cases. Here’s a chart on what MOH will do: When given a quarantine order, the District Health officers would call or make surveillance visits to the person’s home. The person under quarantine would only be allowed to leave their home after being tested negative within a 13-day surveillance period. But if you’re not infected with COVID-19 but know someone who might be, what can you do? Malaysians are required to report them to the authorities If someone is showing symptoms of COVID-19, but is reluctant to seek treatment—you have the legal responsibility to report this to the authorities. Section 10(1) of the Prevention and Control of Infectious Diseases Act 1988 states that: “Every adult occupant of any house in which any infectious disease appears...or in the company of...shall, upon becoming aware of the existence of such disease, with the least practicable delay notify the officer in charge of the nearest district health office or government health facility or police station or notify the nearest village head of the existence of such disease.” The Act essentially says that anyone who is aware that a person might be infected with COVID-19 must inform the nearest District Health Office, government medical centres or the nearest police station. This should be done in the shortest span of time to prevent the disease from spreading to other people. If you try and “help” the person who’s already sick by not urging him to get medical treatment, you can be jailed up to 2 years, given a fine, or both. So perhaps it’s best to report or inform the authorities as soon as you suspect someone might be down with the infection. And to make things easier for us, the Health Ministry has set up several hotlines you can call, if you have any information about someone who isn’t seeking treatment despite having COVID-19."
"Bank Negara defers all loan payments for 6 months. Here’s how to find out if you qualify With the Movement Control Order being enforced, people have been ordered to stay home, while businesses have either temporarily closed, or have their employees work from home. Consequently, spending has gone down during this time, and so does the income stream for most people. But guess what: your bills and loans will still be there. In a move to help those affected by the COVID-19 outbreak (which is nearly everyone), Bank Negara Malaysia (BNM) has announced a six month deferment period on all loan repayments, except for credit card balances. This means that from April to September, you won’t have to pay your monthly bank loan instalments. But do note that this doesn’t mean 6 months worth of loan repayments have been forgiven (we wish so, too). You also don’t have to do anything to get your loans deferred, because... Your loans will automatically be deferred Under the moratorium (a fancy legal word meaning postponement of payment), all bank loans and financings, whether old or new, will be temporarily suspended for six months. If you or your small-to-medium business qualify for it, you don’t have to make payments during that time, and you won’t receive any penalties or late charges from doing so. Your CCRIS, or credit rating will also be unaffected by the deferment. To qualify, you have to fulfill two criterias: Your loans aren’t in arrears more than 90 days -- which means you haven’t missed a payment for more than 90 days as of 1st April The loan must be in Malaysian Ringgit So if you have defaulted on your loan, you might not be eligible for this. However, if your loan is on a Reschedule & Restructure (R&R) program, you are also automatically eligible. And the loan covers all personal loans, including car loans as well as home mortgages. This will apply to all banks, Islamic banks, as well as Development Financial Institutions (DFI) such as Bank Simpanan Nasional regulated by BNM. There is no word yet whether other financial institutions will follow suit and offer a deferment, but since it’s still early days, they might make an announcement so stay tuned. So as of now no, your friendly neighbourhood ah longs are not part of this program (yet). And you don’t have to apply to your bank for the loan deferment. As long as you fulfill the two criterias, your loans will automatically be deferred. Good news is that you won’t have to pay for your car and house for six months. The bad news is... Your interest will still pile up Despite your monthly payments being suspended, sadly, interest will still accumulate on your outstanding loan, and you will still need to continue your repayment after the six months is over. At the end, you will have two choices on continuing your payments: Pay slightly more for each monthly instalments Get an extension to your repayment length Both options are negotiable, so contact your bank on the best way to proceed. However, if your cash flow is doing fine during the MCO (email us your secrets), you can choose to opt out from postponing your loan payments. You can either notify your bank, or just continue your monthly payments. Outstanding credit card bills can be turned into loans We’ve mentioned before that credit cards will not be covered under the deferment program, so you will still need to continue your monthly payments, if there are any. However, if you’ve been facing financial difficulties and are unable to pay the outstanding amount for 90 days, your bank will convert the balance into a loan of not more than 3 years, with the interest capped at 13% per year. This loan will then be part of the deferment program, and only needs to be paid at the end of the moratorium. But this will only happen if you are unable to pay for 90 days. If you’re still paying your monthly credit card bills, your outstanding balance will not be converted into a loan. Your credit card will still be usable during this time, but only if you haven’t reached the credit limit, as your loan will now count towards it. At the end of the deferment period, the loan will then be added to your credit card’s minimum monthly repayment amount. According to Bank Negara, the deferment program is intended to provide Malaysians with a temporary financial relief during the financial slowdown. But the length of six months might make it seem that they foresee the effects to last way more than the two week four week MCO we are having right now. [Information sourced from Bank Negara Malaysia’s FAQ]"
"3 perkara yang pekerja Malaysia kena tahu kalau mereka bekerja masa kawalan pergerakan [Click here for English version] Disebabkan penularan wabak COVID-19 yang semakin membimbangkan, kerajaan dah mengisytiharkan Perintah Kawalan Pergerakan bermula pada 18 Mac lalu dan dijangka akan berakhir pada 31 Mac ni. Disebabkan perintah ni, ada syarikat-syarikat yang ditutup sementara – tapi tindakan tu masih lagi tertakluk di bawah Garis Panduan yang keluarkan oleh Kementerian Sumber Manusia. Kalau ada seseorang dah terkena dengan virus ni, dan korang nak tahu apa hak-hak korang – korang bolehlah baca artikel kami sebelum ni. Tapi untuk artikel kali ni, kami nak bincangkan tentang apa yang pekerja kena tahu, kalau syarikat mereka masih lagi belum faham dengan Perintah Kawalan Pergerakan dan korang masih lagi kena pergi kerja. Tapi sebelum korang tengok hak-hak korang tu, kami nak jelaskan dulu apa dia ‘perkhidmatan penting’ yang dikecualikan daripada mematuhi Perintah Kawalan Pergerakan ni. Perkhidmatan penting diperlukan untuk terus hidup Seperti mana yang diumumkan oleh Perdana Menteri, Muhyiddin Yassin – ada beberapa perkhidmatan yang dibenarkan untuk terus beroperasi sepanjang kawalan pergerakan ni. Antaranya adalah seperti air, elektrik, tenaga, telekomunikasi, pos, pengangkutan, minyak & gas dan Bomba. Bagaimanapun, bukan tu je sektor kerajaan dan swasta yang dibenarkan beroperasi sepanjang tempoh ini. Peraturan 2, Peraturan-Peraturan Pencegahan dan Pengawalan Penyakit Berjangkit (Langkah-Langkah Di Dalam Kawasan Tempatan Jangkitan) 2020 ada menyenaraikan segala perkhidmatan yang dibenarkan beroperasi sepanjang tempoh ini. Berikut adalah senarainya: Seperti mana yang kita nampak, senarai perkhidmatan ni memang diperlukan sebab ia penting untuk kehidupan seharian kita. Perkhidmatan penting ni pada asasnya adalah diuruskan oleh kerajaan atau apa-apa sektor swasta, dan gangguan terhadap perkhidmatan ni boleh membahayakan nyawa dan keselamatan rakyat Malaysia. Sekarang ni kita nak tengok pula Garis Panduan yang dikeluarkan oleh Kementeria Kesihatan Malaysia. Khususnya kepada pekerja-pekerja Malaysia yang bukan sebahagian daripada sektor perkhidmatan penting, tapi masih lagi menjalankan tugas diorang: 1. Syarikat boleh kurangkan gaji pekerja Dengan terlaksananya Perintah Kawalan Pergerakan sekarang, syarikat-syarikat sebenarnya dibenarkan untuk mengurangkan (pay-cuts) gaji pekerja mereka. Dalam garis panduan dari Kementerian Sumber Manusia, ada diterangkan macam mana syarikat boleh melaksanakan perkara ini secara sementara. Dalam masa sama, kementerian juga keluarkan Garis Panduan Pengurusan Pemberhentian Pekerja yang memerlukan majikan menyerahkan Borang Pemberhentian kepada Kementerian dalam tempoh 30 hari sebelum mengambil tindakan mengurangkan gaji pekerja. Borang tu boleh didapati di mana-mana pejabat buruh atau di laman web rasmi Kementerian. Tapi ambil perhatian: Tindakan ini hanya boleh dibuat kalau syarikat menghadapi kerugian kewangan akibat pandemik semasa. [BACA LAGI: Can Malaysian companies force you to take annual leave?] 2. Syarikat boleh kurangkan masa bekerja Kalau mengurangkan gaji pekerja tak dipilih oleh majikan, syarikat boleh mempertimbangkan tindakan untuk mengurangkan waktu bekerja harian. Seperti mana yang dinyatakan dalam bahagian 20, Tatacara Keharmonian Perusahaan, syarikat/majikan boleh mempertimbangkan untuk menghadkan waktu atau hari bekerja. Jadinya, kalau syarikat tak nak kurangkan gaji dan nak lindungi hak mereka, syarikat bolehlah pertimbang untuk melaksanakan peraturan-peraturan yang ada dalam garis panduan ni. 3. Majikan mesti cuba dan carikan pekerja kerja gantian Dalam garis panduan ni, ada juga disebutkan tentang syarikat boleh melaksanakan pemberhentian kerja sementara (lay-off) semasa Perintah Kawalan Pergerakan. Kementerian Sumber Manusia merujuk perkara ni kepada Tatacara Keharmonian Perusahaan, yang membenarkan penutupan sementara. Bagaimanapun, majikan mesti memastikan yang pekerja-pekerja mereka dibayar seperti biasa dan patut menyediakan bantuan untuk mencarikan pekerja itu pekerjaan sementara. Majikan juga dikehendaki mengisi Borang Pemberhentian kepada kementerian dalam tempoh 30 hari sebelum pemberhentian kerja sementara tu dilaksanakan kepada para pekerja. Kalau majikan gagal mengikuti garis panduan itu, mereka boleh berhadapan dengan penalti. Majikan akan kena denda kalau tak ikut garis panduan Mana-mana majikan yang gagal mematuhi Garis Panduan Kementerian Sumber Manusia, mereka boleh didenda sehingga RM10,000 bagi setiap kesalahan. Kementerian juga akan tubuhkan jawatankuasa pemantauan untuk memastikan setiap garis panduan dipatuhi majikan. Selain itu, jawatankuasa pemantauan ni juga akan memastikan nasib pekerja terbela dan merekodkan sebarang maklumat mengenai pemberhentian pekerja di seluruh negara. Dan kalau korang rasa majikan korang tu tak ikut apa yang dinyatakan dalam garis panduan masa pandemik ni, korang bolehlah buat aduan kepada Kementerian Sumber Manusia melalui talian hotline: +03-88865192 [BACA LAGI: If your boss refuses to pay you in Malaysia, what can you do?]"
"Here's how Malaysians can report sellers who sell face masks at ridiculous prices From the time Covid-19 started, people all around the world having been scrambling to get two things (besides toilet paper): face masks and hand sanitizers. And Malaysians have been doing likewise. To protect themselves against the virus, more and more people were buying masks and sanitizers, causing a great demand for these items. They ended up getting sold out in many places and shops that did have them started to increase their prices bit by bit... until they even doubled and tripled. Because masks and sanitizers are seen as essentials during Covid-19, people were willing to buy them anyway. But this didn’t help, because the prices ended up soaring to unbelievable amounts and some sellers were charging hundreds of ringgit for one box of face masks. Although this IS very frustrating for us users, the good news is that the authorities have been clamping down on such sellers and slapping them with hefty fines. But, what can we do as buyers to ensure that more and more of these sellers face the law? Before that, here’s what you need to know on the pricing of face masks and hand sanitizers itself. Face masks are controlled, but not hand sanitizers So far, the government has only set the prices for face masks and not for hand sanitizers. Hand sanitizers come in various grades and so fixing a specific price for them would be difficult. But for face masks, the requirement to have a fixed price is in accordance with the Price Control (Controlled Prices) Order 2009 and the Price Control (Maximum Pricing) (No.2) Order 2009. Since January 2020 up to now, March 2020, the government has adjusted the prices for face masks several times, but at the time of writing, the prices are as seen in the image above. And since the government has already fixed the prices for those type of face masks, selling them at higher prices than that would be against the law. Section 11 of the Price Control and Anti-Profiteering Act 2011 states: Any person who sells or offers to sell any price-controlled goods or provides or offers to provide any charge-controlled services or who collects deposit otherwise than in accordance with the prices or charges determined by the Controller under section 4, 5 or 7 commits an offence Section 18 of the same Act explains the penalty for such an offence. If a seller is a registered business, the penalty is a maximum fine of RM500,000 for the first offence and if they do it again, the maximum fine is RM1,000,000. But if it is just an individual seller who doesn’t own a business, the penalty would be a maximum fine of RM100,000 for the first time and if they commit the offence again, a maximum fine of RM250,000, or a jail term of not more than 5 years, or both. Unfortunately, this law doesn’t apply to online sellers. According to the President of the Malaysian Pharmaceutical Society (MPS) Amrahi Buang, in an article by Cilisos, online sellers are hard to trace which makes it difficult to enforce this law on them. But here’s a tip from us: you can still report sellers like this to the platform on which you found them and these sellers’ postings might then be removed. But sellers aren’t the only ones who will get in trouble: If you purchase fixed-price items at marked-up prices, you would also be committing an offence. Section 12 of the Price Control and Anti-Profiteering Act 2011 says: Any person who purchases or offers to purchase any price controlled goods or obtains or offers to obtain any charge-controlled services otherwise than in accordance with the prices or charges determined by the Controller under section 4, 5 or 7 commits an offence The penalty for this is exactly the same as sellers who sell price-controlled items at higher prices. The only defence to this would be if you genuinely had no idea that seller was charging you much more than the fixed price. But coming back to unscrupulous sellers, where do we go and who do we tell if we come across them selling face masks and hand sanitizers at ridiculously high prices? KPDNHEP to the rescue Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna, also known as KPDNHEP is the government body that is responsible for domestic trade and consumer rights. One of their key roles is to ensure that the prices of certain items are not above the fixed amount, so that Malaysians will not be forced to pay through their noses for essential items. Besides face masks, you can check out their website for other price-controlled items. But KPDNHEP’s job isn’t just to fix prices for items—they will also take action against sellers who sell these items at higher prices. So, if you notice such sellers, you can file a complaint with KPDNHEP. They can be reached via these channels: toll free number at 1-800-886-800 online complaint system app Facebook Twitter WhatsApp at 019-2794317 Make sure to get as much proof as you can for your complaint, such as images and details of the seller, so that it would be easier for KPDNHEP to investigate the case. Shops can limit how much you can buy To adhere to prices set by the government and to ensure that stocks are enough for everyone, those selling masks and sanitizers CAN only sell a certain amount per customer. You may have seen several shops put up notices that each customer can only buy X amount of masks or sanitizers or other disinfectants—this is perfectly legal. Popular e-commerce platform Lazada had set a restriction on how many masks each customer could buy back in February 2020. Local hypermarket Mydin also put up a list of items that could only be bought in 2 units per customer, and face masks and sanitizers were included in the list. Even if you go to a shop that doesn’t have such a restriction, make sure to be civic-conscious and only buy only what you need. Health Director General, Datuk Dr Noor Hisham Abdullah has also said a few times that not everyone needs to wear masks, but only those who are sick or dealing with sick people. Many of our frontliners, especially medical staff are running out of face masks and other protective gear, so we should do our part to ensure that those who really do need them, have enough."
"What can you do if your wedding was canceled due to the Movement Order in Malaysia? With the increase of Covid-19 cases, the CMCO (Controlled Movement Control Order) has recently been implemented in Klang Valley. This followed the CMCO placed on the whole of Sabah. Now this period is also pretty painful for some of us who’ve been in the midst of planning an event, such as a wedding—only to cancel it due to the CMCO. Under the current CMCO, weddings are not allowed. Planning a big event like a wedding or a party takes at least 6 months of preparation. These preps would include booking a location, hiring performers/band and food caterers for the event. If you’re someone whose plans are now locked up with you at home, you’d probably wonder if it’s still possible to get a refund or postpone the bookings made for your big day. So the question now is, can you postpone or cancel all bookings made due to the movement order? But first, read your contract! We sign or agree to contracts on a daily basis. Most of the time, we don’t face any problems with the other party because both sides are able to fulfill their part of the demand. Now with the whole Movement Order and the illegalities of having any form of celebration or events, we will most likely have to cancel the contracts made with other parties. However, this isn’t because we’re at fault or the other party had done something wrong—which led to the end of the contract. [READ MORE: In Malaysia you can get out of a contract if both sides made a mistake] So in this situation, where none of the parties are at fault—but an unforeseen circumstance took place, making the parties unable to fulfill their end of the bargain—the contract is said to be frustrated. However, some contracts have special clauses to state that the job cannot be performed due to a sudden, unexpected turn of events. The term for this clause sounds somewhat like a Harry Potter spell—and it actually has some magic to it if it’s invoked in your contract: Just say ‘Force Majeure!’ Some contracts are more understanding than others If your contract has something called a ‘force majeure’ clause, you're in luck. What the clause means is that, if there is something unexpected happened, that stops everyone from doing what was agreed in the contract, the contract can be cancelled Now this clause is somewhat more helpful for the vendor or service providers than customers itself. This is mostly because in commercial contracts, it’s a norm for customers to sue the seller/service provider, and not the other way around. But as we’re in the midst of the CMCO which is a direct result of the COVID-19 pandemic, contractual obligations between many parties are canceled due to it. So in a situation like this, it’s useful to check your contract to see if there is a clause that provides for these unforeseen circumstances. The ‘force majeure’ clause can sometimes be found under the termination clause of the agreement, which will help with the negotiation process in the future. This clause acts to exclude any liability if the other party (the vendor) cancels their part of the agreement for your kenduri or event. But if your contract does not have this ‘force majeure’ clause, there’s still another way you can resolve this situation. Your contract will be just as frustrated as you are Assuming you’ve read your contract and you do not see any clause that says your contract is ending due to unforeseen circumstances (aka the ‘force majeure’), your contract is now said to be frustrated, making it invalid. Contracts become frustrated when the obligations under it become either impossible or illegal to fulfill due to some unexpected circumstances that couldn’t be avoided. Section 57(2) of the Contracts Act 1950 states: “A contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.” The Act essentially says that after a valid contract has been entered into, if a subsequent event makes the performance of the contract impossible or illegal, that contract is said to be ‘frustrated’. [READ MORE: If a freak accident makes you break a contract, can you get sued under M'sian law?] There are basically 3 conditions laid down in Guan Aik Moh (KL) Sdn Bhd & Anor v Selangor Properties Bhd that need to be satisfied to make a contract (and the parties) frustrated: The event (unforeseen circumstance) was not stated or predicted in the contract. The event (unforeseen circumstance) was not induced by either party. The event (unforeseen circumstance) was completely different from what was specified in the contract. Perhaps this would make sense if we relate it to our current situation: If the CMCO was not something you or the other party expected to happen, and the CMCO was not something either party caused and the CMCO which prevents mass gatherings has now changed the whole point of the kenduri—which is to invite all your family and friends—then you or the other party can’t carry on with the contract as it is impossible to have it during the CMCO. Also, if any of the conditions mentioned above are missing, then the contract cannot be said to be frustrated. So the question now is, how can you get a refund or carry on with your event, at a later date? Re-negotiate with the other party If you’ve decided to put all your kenduri preps on hold until the pandemic is over, you can choose to re-negotiate the terms in your contract with the other party. Now there is also a chance for the service provider such as the hall management or food caterers to bring up re-negotiation first. Among the things that might be brought up during re-negotiation is the termination of the contract for a duration of time or for an extension of time to prepare for the event due to the CMCO. However, if you’re considering to cancel the event due to the CMCO, you can recover the money you’ve paid—as long as the performance stated in the contract is not carried out yet. This would most likely involve a lawsuit, where the court can order the other party to make refunds for the contract that has become frustrated. So if you’re going through this tough time and need to alter all your plans due to the CMCO, it makes good sense to deal with the other party outside of court first since it’s neither yours nor the other parties’ fault; either out of goodwill or to avoid lengthy court proceedings. It’s also best to consult a lawyer since these circumstances are subjective and differ on a case to case basis."
"Managers can be jailed for opening the office during the movement order in M'sia “Stay at home.” This is the message from our Prime Minister Muhyiddin Yassin, requesting Malaysians to abide by the Movement Control Order (MCO). His statement was in response to a number of Malaysians still seen hanging around eateries despite the nationwide order to stay indoors. According to a statement from the Defence Minister, only around 60% of Malaysians have heeded this order. But everyday Malaysians aren’t the only ones not heeding the message; there are some businesses that have decided to remain open, despite not considered essential. Currently, only a pre-approved list of businesses are allowed to run, with every other business required to either close temporarily, or work from home for the next two weeks. But companies might choose to stay open due to fears that profits and productivity might go down during this time, despite the potential fine and jail time from doing so. And these punishments could cause a bigger halt to your business than the two week isolation period. These penalties can be hefty, but before going into what could happen from businesses opening shop, let’s look at what are the businesses or industries allowed to run during the Movement Restriction Order. Only important industries are allowed to open In the Federal Gazette titled Prevention and Control of Infectious Diseases Regulations 2020, the government has stated that only essential services are allowed to be open during the Movement Control Order (MCO). These are services necessary to keep the country running such as healthcare, defence, electricity and water, telecommunications and transport. The gazette also allowed restaurants to be open, but are restricted to serving takeaway food to the diners, or through food delivery services such as GrabFood and FoodPanda. Other premises not included in the list can be opened, but they would need to get a written permission from the Director General of Health, and may be subject to restrictions that they see fit. Even then, all of the premises listed above are required to run at minimum personnel. In an FAQ released by the Domestic, Trade and Consumer Affairs Ministry, only staff who are necessary to operations will be required to come to work. Every other staff who are non-essential should be asked to work from home. Now, let’s see what happens if you still decide to open shop during this time. Employers can be jailed for opening the business If your company isn’t authorised to open during these times, you’re committing a crime and can be fined and jailed for it. In Section (7)(1) of the Prevention and Control of Infectious Diseases Regulations 2020, it’s stated that: Any person who contravenes any provision of these Regulations commits an offence and shall, on conviction, be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both. Basically, anyone who decides to open their business during this time, can be fined not more than RM1,000, prison sentence of not more than six months, or both. But if you’re part of a company, it’s not only the company that will be charged. Anyone involved in managing the company during the movement restriction will also be charged. In Section (7)(2), it’s stated that: If an offence is committed by a body corporate, any person who, at the time of the...offence was a director, manager, secretary or other similar officer of the body corporate or was purporting to act in any such capacity or was in any manner or to any extent responsible for the management of any of the affairs of the body corporate or was assisting in such management— (a) may be charged severally or jointly in the same proceedings with the body corporate There is a chance for the management to escape punishment, but only for two reasons: one, they either didn’t know it happened or didn’t authorise it; or, two, they tried their best to prevent it from happening. Our job now is to stay in Before the movement restriction was implemented on the 18th, there were questions from business owners who found the directive vague. They weren’t sure whether their business was still allowed to run during this time. However, in the past few days, nearly every major government agency, such as the Human Resource Ministry, has released an FAQ to address any questions we may have. At this point, there should be enough clarity whether a business should be open or not during the movement restriction. If you feel your employer is running the business illegally, you can contact the Home Minister’s Operation Room at 03-8886 8110, or 03-8886 8126. Alternatively, you can just call your nearest police station to make a report."
"Leaving your house without a good reason during Covid-19 can get you jailed in Malaysia Covid-19: the one thing that just about every person has been talking about. And in the last two weeks, we’ve seen a high spike in cases in Malaysia. So to help curb the spread of the virus, two days ago, on March 16th 2020, the Prime Minister announced a two-week movement restriction/control order. This order takes effect from today, March 18th until March 31st 2020. Malaysians have been asked to stay home and only go out for necessary supplies or emergencies. Mass gatherings have also been asked to be cancelled (more on this later) and learning institutions as well as offices, except for those providing essential services, have been ordered to close. It has only been a few hours since the order took effect and we’ve already been seeing news articles on how people are still gathering at eateries and even returning to their hometowns, causing massive traffic jams. Many of us are angrily calling these people out, but how do we know exactly what we can and cannot do in the next two weeks? It’s not a lockdown Before we get into the law, here’s what you need to remember: this isn’t a lockdown. As soon as the Prime Minister announced the movement control order, everyone started calling it a ‘lockdown’. But a lockdown is actually different from a movement control order. Countries that are currently under lockdown, such as Italy require people to stay indoors at all times and produce a permission slip from the police each time they go out. In contrast, the movement restriction order isn’t as strict. We are supposed to stay indoors, but we’re allowed to go to nearby places for food and medical supplies. And as mentioned above, certain sectors are still allowed to work. By the way this looks, what we’re going through isn’t as serious as a complete lockdown and it seems as if we are allowed to move around to a certain extent. But… there are still are some rules that we need to follow. So, besides going out to buy essential items, what else can we do? You can’t ‘balik kampung’ Before the order came into effect, people started making their way back to their hometowns the day before, as there was no specific prohibition against moving within the country. Together with higher learning institutions that paused all classes, some student dorms within these institutions also shut down, forcing students from other states to go back to their families. So, while we were advised against travelling within the country, PDRM did allow for it when necessary. Whoever needed to go back just had to get permission from the nearest balai polis. But this caused an influx of people at each station, and PDRM couldn’t keep up with it. This then lead to them removing the requirement for people to get permission before leaving their states, and more and more people started moving about. Then on 18th March 2020, the government released some new regulations made by the Health Minister (we’ll discuss this later). Under these new regulations, it was decided once and for all that interstate travel is totally not allowed, except in these circumstances: The death of a close family member Critical illness of a close relative The requirement of medical treatment, for themselves, or a close family member Other situations which will be weighed by the police Anyone else who wanted to travel interstate for other reasons would not get permission from the police to do so. So, if you’re still thinking of travelling to your hometown without an urgent reason AND without permission from the police, you’ll be going against the control order and breaking the law. No mamak sessions, no crowds at weddings & funerals Going out to eat alone may seem harmless, right? Well, not for the next two weeks. Kementerian Kesihatan Malaysia released a list of Frequently Asked Questions (FAQs) that can give us an insight into what is and isn’t allowed during this control order. According to the FAQs, restaurants are allowed to operate as usual, but only for takeaways. Meaning, you’re not allowed to sit there and eat, but you can tapau back home. Alternatively, you can have your food delivered to your doorstep via delivery services such as GrabFood and FoodPanda. As we mentioned earlier, hours after the control order came into place, many Malaysians were still seen eating in restaurants and coffee shops. If caught, they would also face punishment for going against the control order. The FAQs also cover important functions and gatherings and how to go about them. For weddings, small ceremonies among immediate family members are allowed. However, wedding receptions, as they typically would have a large number of guests, are prohibited. Funerals are painful events, but there are restrictions on these too. If the deceased was not someone who contracted Covid-19, only close family members are allowed. For Muslims, a few members of the mosque or surau can help with the funeral. But if the deceased with a victim of Covid-19, sadly, there will be no funeral, and the body will be disposed of by authorized personnel. For more detailed answers on what else isn’t allowed from March 18th – 31st 2020, click here. But now the question is, what happens if we go against any of these rules that have been set? You can be fined or jailed for going against the order The movement control order itself actually comes from a law that is 53 years old, so it didn’t just spring up overnight. The Police Act of 1967 states that the police can order Malaysians to stay indoors if needed. Section 31 of this Act reads: (1) A Commissioner or a Chief Police Officer may, if he considers it necessary in the interest of the security of Malaysia or any part thereof or public order, by order require, subject to such conditions or exemptions as he may deem expedient... to remain within doors between such hours as may be specified therein; So, if it’s in public interest and safety, PDRM has the right to ask everyone to stay indoors… but that very same section goes on to say: (4) No order made under subsection (1) shall remain in force for more than twenty-four hours from the making thereof: This sounds like we’re only supposed to stay indoors for just a day, right? Besides, it was the Prime Minister who made the order. So, why is PDRM in the picture? Well, this part of the law comes with a disclaimer, and it says: ...Provided that the Minister may, on or before the expiration of any such order, direct that the order shall continue in force for such further period not exceeding fourteen days as he may specify and, upon the making of any such direction, the order shall continue in force for such further period. Basically, the Minister has the power to extend the order up to 14 days, and even beyond that if necessary. The police’s role here would be to enforce the order and ensure that it is followed. So, now we know where the order came from. But what happens if we actually go against it? The Prevention and Control of Infectious Diseases Act of 1988 is a set of laws that tells us what measures can be taken during a pandemic, and what happens if we break any order made during that time. Section 24 of this Act states that the penalty for this would be a fine and two years of jail for the first time you go against the order, a fine and five years of jail for the second time, and a heftier fine for any subsequent breach. But the government has issued a new set of laws specifically for Covid-19, known as the Prevention and Control of Infectious Diseases (Measures Within The Infected Local Areas) Regulations 2020. And under these regulations, anyone who goes against a movement control order can be jailed up to 6 months, fined RM1,000 or both. So, make sure to do your part by following these rules closely, and also look out for any new updates that may be issued by the government from time to time."
"3 things Malaysian workers must know if they're working during the movement order With the sudden spike in the number of Malaysians down with COVID-19, the government announced the Restrictive Movement Order yesterday. The Order essentially acts to control and curb the rise in COVID-19 cases, by restricting movement and mass gatherings from 18-31st March. Now some companies have still not gone under the temporary closure—however this is subject to change once the Human Resource Ministry updates the guidelines. If someone in your company has already contracted the virus, and you want to know what are your rights—you can read this article we wrote previously. In this article we’ll look at what employees need to know, if your company isn’t observing the movement order (yet) and you still need to go to work. But before we look at some of your rights, we need to first make a distinction between jobs that are classified as “essential services”—which are basically companies that are exempted from complying with the movement order. Essential services are necessary for survival So the current Prime Minister Muhyiddin Yassin mentioned some of the services that need to be provided during the order. Some of it include water, electricity, energy, telecommunications, post, transportation, oil & gas and the Fire and Rescue Department. However, these are not the only government or private sectors that will be operating during this period. Regulation 2 of The Prevention and Control of Infectious Diseases (Measures Within the Infected Local Areas) Regulations 2020 lists down all the services that shall be provided during the period of the movement order. It’s a pretty long list, so please bear with us: As you can see, the list goes on to state every service that is important in our daily lives. Essential services are basically managed by the government or any private sector—and the interruption of these services would endanger life, health and safety of Malaysians. Now that we’ve got this out of the way, let’s look at some of the Guidelines given by the Human Resource Ministry, for Malaysian employees who are not part of the essential service sector, but are still working due to the nature of their job: 1. Companies can issue employees a pay cut With the current Movement Order we’re facing, companies may issue pay cuts to employees. The Human Resource Ministry issued guidelines on how companies can temporarily do so. The Ministry issued a Retrenchment Management Guideline (Garis Panduan Pengurusan Pemberhentian Kerja) that requires employers to submit a ‘Retrenchment Form’ (Borang Pemberhentian) to the Ministry within 30 days before the pay cuts are implemented. The form can be obtained from any labour office in Malaysia, or the official website. But take note: This action can only be followed if the company is facing financial loses due to the current pandemic. [READ MORE: Can Malaysian companies force you to take annual leave?] 2. Companies can implement shorter working hours If giving employees a pay cut isn’t the company’s way to go, companies can consider implementing shorter working hours instead. As stated under Part 20 in the Corporate Harmony Procedure (or better known as Tatacara Perusahaan Keharmonian), companies/employers can consider limiting the working hours or days. The regulations stated in the Guideline are in Malay, but it basically goes on to list some of the steps employers can consider taking to prevent lay-off or retrenchment. Here’s what it says: Limit overtime at work Reduce working hours in a week Reduce working hours in a day So in order to prevent pay cuts of employees and to protect their rights, companies can consider implying the regulations stated as per the Guideline. 3. Your boss must try and find you a replacement job The Guidelines also go on to say that companies can temporarily lay-off employees during the movement order. The Human Resource Ministry referred to the Corporate Harmony Procedure, which says temporary shut downs are allowed. However, employers must ensure that the employees are paid accordingly, and should provide assistance in finding the employees a temporary job. The employer is also required to fill in the ‘Retrenchment Form’ (Borang Pemberhentian) to the Ministry within 30 days before the temporary lay-off is applied to employees. Now if an employer fails to follow the Guidelines set, they would face some pretty hefty penalties. Employers will be fined for not following the guideline Any employer who fails to follow the Human Resource Ministry’s guidelines will be fined up to RM10,000 for each offence that was committed. The Ministry will also establish a monitoring committee to ensure compliance of the guidelines above. The aim of the monitoring committee is to ensure the fate of employees are not jeopardized and to record any information on the retrenchment of employees throughout the country. If you feel that your employer has not complied with the Guidelines above during this pandemic, you can always make a report to the Human Resource Ministry via their hotline: +03-88865192 [READ MORE: If your boss refuses to pay you in Malaysia, what can you do?]"
"In Malaysia, you can be fined AND jailed for not carrying your MyKad at all times You’re late for work...again. You somehow manage to get ready in 15 minutes. You’ve taken your laptop, your bag and even packed yourself a sandwich. Now it might feel like an achievement to get ready within minutes—But speed doesn’t always amount to efficiency as you might have forgotten essential things (such as your IC, keys and money) before you leave to work. Which leads to this: You’re stopped at a police roadblock just meters away from work. The police asks you to show him your license and IC when you realize...you only have your license with you! You stop to think that it might not be so bad—you could still get away with it because your license will be enough. Next thing you know, you’ve been slapped with a huge fine for not having your IC with you. So yes, it is an offence in Malaysia if you don’t carry your IC with you at all times. So let’s take a look at what happens if you commit the offence... You can be fined and jailed for leaving your IC behind It can be a bit of a hassle to carry so many things when you’re just heading to a nearby grocery store. But it might be a bigger hassle to fork out money to pay a hefty fine...just because you left your IC back at home. Section 6(2) of the National Registration Act 1959 says this: “Without affecting the power conferred by subsection (1), the regulations may provide with regard to...care and show identification card...the imposition of penalties for any offense the rules and penalties should not exceed fines for fifty thousand dollars or imprisonment for five years or both...” The Act essentially goes on to say that the regulations make it a requirement for Malaysians to show their ICs when asked for. Not being able to produce the IC when required carries a penalty not exceeding RM50,000, a 5 year jail sentence or both. But what happens if you lost your IC instead of leaving it behind at home? You can replace your IC and get a new one There are 2 ways you can lose your IC. One is due to your own carelessness and two, you might have been robbed. Now both these situations are dealt with differently in Malaysia. But both circumstances share the same first step: Make a police report. Now here’s where the distinctions come in play: 1. If you lose your IC due to your own carelessness If you lost your IC because you misplaced it somewhere, you don’t necessarily have to go to a police station to make a police report anymore. But take note, this only applies for non-criminal cases (where you were not robbed). PDRM has introduced the e-reporting portal for the ease of filing police reports for missing documents or things that do not have a criminal element involved. However, this portal is only available in Kuala Lumpur for now. Once you’re done filing the report, you can now visit any Jabatan Pendaftaran Negara (JPN) branch to apply for a replacement IC. Take a copy of your police report along when you want to do so. The police report should state the details on how you lost the IC and mention the details of the missing IC. But here’s something to note: You’ll be fined based on the number of times you lose your IC. Here’s how it works: 2. If you were robbed If your IC and other belongings were stolen, you’ll need to make a police report at the nearest police station. Your report will then be verified by JPN to confirm that you’ve been robbed—based on the details of your report. Once your report has been classified based on the circumstance, you’ll be exempted from paying a penalty to get a replacement IC. However, if you make a false police report saying that you’ve been robbed instead of carelessly losing your IC—you’ll be facing bigger penalties which includes a jail term. Section 182 of the Penal Code states: “Whoever gives to any public servant any information orally or in writing which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant to use the lawful power of such public servant to the injury or annoyance of any person...shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to two thousand ringgit or with both.” Making a false police report essentially carries a fine up to RM2,000, a 6 months jail term or both. Now some of you might wonder if there are other alternatives to carry your IC...without having to bring the original along. Can you carry a photocopy of your IC instead? As we mentioned earlier, not bringing your IC everywhere you go is an offence. Now some of us might take this as an opportunity to get creative with the way we carry our IC. One way you may have considered (or we assume you might) is by carrying a photocopy of your IC, instead of the original. If you thought about this, here’s what NRD’s public relations officer had to say: “It is therefore not advisable to carry a photocopy of your original IC around because it isn’t valid. Only a genuine IC will be able to identify the person,” – Jainisah Mohd Noor to TheStar (30/8/2007) So the only way you should carry your IC is by carrying the original one...even if you’re merely visiting the mamak next to your home."
"6 reasons Malaysians can be stopped from leaving the country You’re waiting in the Immigration queue at KLIA, and in just 2 hours, you’ll be off for your holiday to the Maldives. You’re so excited, that you can’t wait to be cleared by Immigration and be at your boarding gate. The queue is moving pretty fast, and before you know it, it’s your turn to have your passport scanned and stamped. But as the Immigration officer does this, he shuts your passport and tell you that you can’t go to the Maldives. Actually, you can’t leave the country at all. Bewildered that your holiday has ended before it even started, you tell him there must be some mistake. After all, you just got your passport renewed. But again, without an explanation, he tells you that you can’t board your flight to the Maldives You may not have gone through something like this, but it’s something that can happen to anyone. Before we get into the reasons why you can be barred from leaving Malaysia, it’s important for you to know that… You can be stopped without being given a reason The officer at the Immigration checkpoint is actually not obliged to tell you why you were stopped from leaving. You can, of course, ask for a reason, but they are not bound by any law to tell you exactly why you’ve not be allowed to leave. In a 2016 article by Malay Mail, the then Deputy Home Minister Datuk Nur Jazlan was quoted saying: ""We have the power to bar anyone from leaving the country. It’s the power given to the Immigration; we don’t need to explain why,"" He also went on to say that it is the Immigration Act 1959/63 that gives them the power to stop someone from leaving Malaysia. While this ‘power’ may seem pretty harsh, the good news is that you can challenge or appeal the decision to ban your departure from Malaysia, and this was confirmed by Datuk Sakib Kusmi when he was the Immigration Director General in 2016. Now that you know this basic rule on barring Malaysians from leaving the country, here are some reasons you can be stopped in the first place. 1. You didn’t pay your taxes Interestingly, it IS tax season as we write this article. For first-timers, filing taxes can be pretty daunting. According to Lembaga Hasil Dalam Negeri (LHDN), the body responsible for taxes, many Malaysians aren’t fully aware of how taxes work, or they don’t know what they can get taxed for. And this doesn’t only happen to those filing taxes for the first time. This may lead to many Malaysians filing their taxes incorrectly or not paying taxes at all. LHDN said that in 2018, a whopping 80,000 people had failed to pay their taxes for that year, and this is actually an offence under Section 114 of the Income Tax Act 1967. But Section 104 of the Act also says: The Director General… may issue to any Commissioner of Police or Director of Immigration a certificate containing particulars of the tax, sums and debts so payable with a request for that person to be prevented from leaving Malaysia unless and until he pays all the tax, sums and debts so payable… This means that if you don’t pay your taxes, a certificate that shows how much you owe can be issued against you, and this very certificate can be used to prevent you from leaving the country. But if you still try and leave the country, Section 115 of the Act says that you can be fined anywhere from RM200 to RM20,000 or be jailed up to 6 months, or receive both penalties. [READ MORE: 5 common Malaysian tax offences you don’t want to accidentally commit] So, we now know that not paying your taxes and then trying to leave the country before paying your dues are both offences. And speaking of offences, having committed a crime in the past can also be a reason to stop you from leaving the country. 2. You have a criminal record… or you’re out on bail Before we get into this, let’s draw a distinction between being out on bail and already having a criminal record. When you’re on bail, there’s an ongoing case against you, for which you’ll have to go to court whenever needed. On the other hand, if you have a criminal record, it means that you’ve done something in the past which you’ve already been penalized for. If you’re out on bail, you would not be allowed to leave the country until that ongoing case against you has been closed. A restriction like this is important, because In some cases, people try to escape to a different country instead of appearing in court. [READ MORE: What's life REALLY like when you're out on bail in Malaysia?] But even if you have already done your time, or paid the fine (depending on what kind of crime/offence it was), there can still be a restriction on you leaving the country. For example, if you’re on parole (you’re released earlier than the actual date due to good behaviour), PDRM or the court can still order you to remain in the country until a certain time. 3. You’ve broken the law in another country This point is a little bit different because it doesn’t involve you doing something illegal in Malaysia, rather it’s you being penalized for doing something illegal overseas as a Malaysian. So, in 2016, the then Immigration Director General said that even those who had overstayed their work visas overseas or committed a crime abroad would be prevented from leaving the country again as soon as they return to Malaysia. Regardless of whether they were deported back to Malaysia or whether they returned on their own, any bad record against them in another country would mean that would be barred from leaving Malaysia for 2 years. 4. You’ve been declared bankrupt If you are declared bankrupt, it means you have debts of at least RM50,000 and you’re unable to pay them. Either you can file a petition to the court to be declared bankrupt, or someone else who has lent you money can file this petition. The effect of this would be that you would have some relief from your debt, so you would not be hounded to pay them off immediately. However, another effect of being declared bankrupt is that you would be blacklisted for several things. One of them would be a ban on getting financial help from banks. But, besides that, you would also be banned from leaving the country until you are officially no longer a bankrupt. So, after you’ve managed to pay off some of the debts and loans (if any), you will have to wait for some time before applying to be removed from the bankrupt list. Only once this is approved can you freely travel overseas again. Speaking of loans, failing to pay your PTPTN loans back used to be a reason to ban Malaysians from leaving the country, but this was removed in 2018. 5. Insulting the government In 2016, the Immigration Department said that insulting the ruling government was also a reason you could be disallowed from leaving the country. According to them, if you are found guilty of this, you can be barred from leaving for 3 years. And if you insult the government while you’re overseas, the 3-year ban would start from the time you return to the country. The Immigration Department also said that it doesn’t matter what medium you use, be it in person or through social media, or anything else, you could be guilty of this as long as some ridicule towards the government was made. 6. Other reasons Immigration sees fit As we mentioned earlier, there is no exhaustive list of reasons as to why you can be barred from exiting Malaysia. But almost always, it will involve public policy, which means that the Immigration would do what is in the best interest of Malaysians and their safety. So, your passport can also be held back for other reasons that you might not hear of often. Some of them include travelling to Israel without permission, as well as losing your passport more than three times in a span of five years. In the case of the second example, you will only be issued a new passport after 2 years. You might not know whether you have been barred from leaving Malaysia until you reach Immigration, at which point it would be too late to make any changes to your plans. To make things easier, Jabatan Imigresen Malaysia allows you to check to see if there are any travel restrictions on you on their website. You can access the form here, and all you need to do is input your IC number to know if you can still go for that holiday to the Maldives."
"Do Malaysian influencers have to pay tax? When scrolling through your FB or Instagram timeline, you’ll probably come across an influencer’s post, probably an image of them at a beach resort somewhere, or promoting the latest health product. I mean, going to a new beach or mountain every week can be fun, and getting health products can be good, but...can they make a living from this? It’s possible, but you’ll need to reach a certain threshold of followers. According to SushiVid, an influencer marketing company, a micro-influencer with 10,000 followers can get an average of 5 campaigns a month. But it’s only when you reach macro-influencer level with over 100,000 followers are you able to make a living from it, as that’s when brands will collaborate with you to promote their products. But since influencers are just working on social media, not a traditional job with payslips at the end of each month, would they need to pay taxes too? If you earn enough, you have to pay tax To find out, we went to a workshop hosted by SushiVid and the Inland Revenue Board (LHDN) that teaches influencers how to pay taxes. Turns out, it doesn’t matter what your job is; as long as you earn RM34,000 per year (roughly RM2,888.33 per month) after EPF deductions, you need to file your taxes. And it’s not just about income you’ve received in cash. If you’re paid with products or holidays, then you would need to declare it as an income too. This type of payment from your client is known as payment in kind and is taxable. For example, if your client gives you a free holiday to their resort as payment, this is considered as your income. If some of us aren’t sure whether influencers need to pay taxes, turns out some influencers themselves didn’t know either. According to Eden See who joined the industry a year ago, “I didn’t know until today that influencers too have to pay taxes if they meet the criteria.” But not knowing about this won’t save you from getting into trouble, because… You can get fined for not filing your taxes If you earn above RM34,000 a year and you try to avoid paying your taxes, you can get into big trouble. Three times bigger, to be specific. Under Section 114 of the Income Tax Act 1967, those caught evading their taxes and not declaring their income can be fined 300% of the amount owed, in addition to a fine between RM1,000 and RM20,000. Under Section 114, it states that: “...Any person who wilfully and with intent to evade or assist any other person to evade tax...shall be guilty of an offence and shall, on conviction, be liable to a fine of not less than one thousand ringgit and not more than twenty thousand ringgit or to imprisonment for a term not exceeding three years or to both...” But just paying your taxes doesn’t mean you’re safe from fines—not following the proper steps can get you fined too. According to an LHDN spokesperson at the event, taxpayers tend to make mistakes when filing their taxes, especially for first timers, which leads to more fines. Malaysians being Malaysians, one of the most commonly made mistake is paying their taxes late. This is an offence under Section 103(3) of the Income Tax Act, and you’ll be fined 10% of your tax amount. And if you make consecutive mistakes, you can be fined for each one of them. For example, if you submitted your form late, filled your information wrongly, AND paid it late, all of the fines will add up. These are just some of the mistakes that could happen. But according to the spokesperson, most of these mistakes are avoidable, and LHDN are happy to assist, as their job is to “help taxpayers do their duty”. [READ MORE: Here's 5 common tax filing mistakes made by Malaysian taxpayers] The government is still trying to understand them Just like Grab and Airbnb, influencer marketing is a type of shared economy model that most people are familiar with. But despite everyone knowing about it, according to SushiVid’s CEO, Foong Yuh Wen, “it is still considered fairly new to the government to fully understand our form of business.” Holding the event helps the government get familiar with influencer marketing and is the next step to increase the market’s credibility, legitimising it as a profession. This is also a chance for the government to claim any lost taxes from undeclared income. But instead of going with a hardline approach, they decided to go with a “friendlier approach”. According to LHDN’s corporate services director, Hishamudin Mohamed, some of the younger generation do not know the importance of paying taxes. “So what we are doing is to provide that awareness to them so it will help them to come forward without being forced”, he said."
"Here's how Malaysian employers might break the law during the COVID-19 outbreak At the time of writing, there are approximately 129 reported cases of the COVID-19 (a.k.a coronavirus) outbreak in Malaysia. As the second wave of this global pandemic hits us, several companies have already started giving employees permission to work from home, and medical benefits to curb the spread of this virus. Now, the Human Resource Ministry has announced guidelines to companies and employers, on how to deal with employment issues—such as sick leaves and medical examinations—for their employees. So here’s a list of what the Guideline states, which your employer may not be complying with. 1. Employers can’t force employees to take leave Imagine this: You come to work one day, sniffling away due to your sinuses. But as soon as you enter the office, you notice that all your colleagues start staying away from you—as everyone is paranoid over the COVID-19 outbreak. Things then get worse when your boss asks you to take leave for the next 1 week, as a safety precaution. Now based on the guidelines by the Human Resource Ministry, your boss is not allowed to prevent you from coming to work, if you have not been given a quarantine order by a registered medical practitioner (a doctor). Basically, your boss cannot ask you to go home (even if you wanted to) because you might not exactly be down with the virus—which requires a quarantine order. However, this does not mean you can come in to work when you’re sick. Employers can still instruct unwell employees not to attend work by providing paid sick leave to them. As an employee, you’re entitled to medical leave if you’re not feeling well. Section 60F of the Employment Act 1955 states as such: “(1) An employee shall, after examination at the expense of the employer...be entitled to paid sick leave...where no hospitalization is necessary.” Every employee is entitled to a minimum of 14 days of sick leave per year (If you’ve worked less than 2 years). The total number of sick leaves you can take would increase over the years you work. [READ MORE: Can Malaysian companies fire you for taking too many MC?] 2. Employers must pay for medical expenses Employees who return from countries that carry a high number of COVID-19 cases, should also be examined (at the expense of the employer/company). The said employees are also entitled to sick leave under Section 60F of the Employment Act, as we mentioned earlier in the article. There are also some companies that go to the extent of setting travel advisories for their employees, to monitor the spread of the COVID-19. Companies can basically set internal policies such as getting employees to declare any travel plans to the company. Some companies are also enforcing the work-from-home policy if a particular employee has been to China. However, if your employer wants you to come to work during this period, he must ensure your safety and welfare at work. Section 15(1) of the Occupational Safety & Health Act 1994 states: “It shall be the duty of every employer and every self-employed person to ensure, so far as is practicable, the safety, health and welfare at work of all his employees.” The Act essentially states that the employer is responsible for the welfare of his employees and must take the necessary precautions to ensure the safety of his employees. This can even be done by conducting health checks on employees and sanitizing the workplace. Apart from that, your company must also bear the cost of your medical expenses if you come back from countries with a widespread of the outbreak. In the event you need to be hospitalized, you should check with your company if they provide hospitalization benefits for employees. 3. Companies can’t ask employees to use their annual leave It is illegal for employers to ask their employees to utilize their annual leaves, in the event they’re tested positive for the COVID-19. This is simply because, annual leaves are an employee’s right. Annual leaves are paid leaves which are stated under Section 60E(1) of the Employment Act 1955: “An employee shall be entitled to paid annual leave of— (a) eight days for...a period of less than two years; (b) twelve days for...a period of two years or more but less than five years; and (c) sixteen days for...a period of five years or more.” Based on the Act, the amount of days you get depends on how long you’ve been working for the company. These annual leaves are your right as an employee and can be taken for any reason. [READ MORE: Can Malaysian companies force you to take annual leave?] Any employer who forces their employee to take annual leave—in the event the employee has been given quarantine orders—is said to be going against the guidelines set by the Human Resource Ministry for the COVID-19 outbreak. Employers are also prohibited from considering the employee’s quarantine period as unpaid leave—which means the employee is entitled to his full salary. But if you feel you’ve been forced to take annual leave despite having a quarantine order, you can make a complaint to the Ministry of Human Resource on their site or call them on their 24-hour hotline: +603-8000 8000. But companies can still enforce their own policies too Now before you barge into your boss’ office and tell him he’s breaking the law, here’s something you should know. The Guidelines are merely recommendations set by the Human Resource Ministry to help curb the virus’ outbreak. However, some recommendations are part of the Employment Act, as mentioned earlier in the article. But there are certain things that can differ from one company to another—such as the travel declarations being made—as not all companies might require their employees to do so. So while these guidelines are not legally enforceable, companies are still obliged to ensure their employees are given the necessary hospitalization and sick leaves, if they need it. In the meantime, you can do your part to curb the virus from spreading by simply washing your hands for 20 seconds to these lyrics:"
"5个大马人对离婚常见的疑问 婚姻在我们的生活里是一个很珍贵经验，人人都希望自己的婚姻能够永远的持续下去。犹如其他情侣，众多伴侣抱着组织一个快乐的新家庭而步入婚姻的殿堂。也许几年后，你有了孩子，也开始投资了属于自己的产业。但你是否考虑过有一天突然你醒来发现你的婚姻再也走不下去了，那该怎么办？ 马来西亚政府的统计显示在2017年记录的离婚案件有49，965件，换句话说每小时就会至少有5个婚姻面临危机。现在的你可能在考虑着与你的伴侣离婚，可是就是因为你们生活中有太多的链接了，要处理起来可能会比较棘手。比如说家庭的财产，抚养权等等的问题。 那么，在马来西亚有关离婚的手续到底是怎么开始的？以下就是一般大众会问的有关问题，在我们开始前，请记得以下的资讯只适合用在公证的婚姻不适合用在回教式的婚姻。 1. ‘我该如何开始离婚的程序’ 非回教的婚姻是被马来西亚离婚法1976 [Law Reform (Marriage and Divorce) 1976] 所管理。离婚的第一步是向家庭法庭提出离婚，可以是单方面或是双方一起提出离婚的协议。 通常你必须结婚两年后才可以提出离婚（第50条条款）。设定这个条件是为了保护神圣的婚姻及鼓励已婚夫妇重修旧好。然而，在特殊情况下其一伴侣是可以在婚姻未满两年的情况下提出离婚，就像是其中一人因这个婚姻而承受了很大的痛苦和伤害的困境。举个例子，夫妇之间的言语争吵算是蛮普遍的现象，但如果言语的争吵又伴随着另一半施暴，拳脚交加伤害了对方，那这个就算是特殊情况。 离婚有两种： 双方联合提出：这种协议是双方都想离婚而且同意分开的条件。 单方面的提出：这种是发生在你想离婚可是你的伴侣不想离婚或相反。 双方联合提出的离婚是很直接的情况因为彼此都有共识离婚和没必要再去证明婚姻已破碎。只要双方都对抚养权和财产分配没问题，法庭都会准许离婚的决定。 单方面的提出相对地比较复杂因为你必须证明你的婚姻已经到了无可挽救的地步，比如以下其中一个情况： 通奸（与不是自己伴侣的人进行性行为） 不合理的行为 遗弃 （抛弃伴侣） 分居 证明了以上其中一项还不够，你和你的伴侣还必需参加婚姻辅导来谘商你们的婚姻是否真的只剩下离婚的选择。如果谘商后真的是如此，你将会得到一张婚姻辅导证书来申请离婚手续。详情可参考离婚法第106条款。 即使法官批了你的离婚申请也还不算是最终的判决。法庭会先给你一个暂时性的离婚证书（Decree Nisi）给你保留最后一次可以反悔的机会。3个月后，你可以正式申请把你的暂时性的离婚证书生效，批准后，你就算是永久性的离婚了。 2. ‘我们应该要怎么分财产’ 根据离婚法第76条款，在决定如何分配财产的时候，法官会考虑以下几个因素： 在购买产业的时候，你付出了多少资金和资源； 为了这个家庭的福利，你贡献了什么； 夫妇其中一方有没有为了这个家庭的福利而欠下了什么债务； 在这个家庭里有没有未成年的孩子（未达18岁） 如果是未婚前使用自己私人钱财所购买的产业呢？难道这些私人产业也要一起被分配吗？似乎不公平对吧？好问题。 当法官颁发离婚证书时，法官有权利把你们的资产分成3大类： 婚姻财产 （在双方结婚后一起共同拥有的资产）—例如：夫妇为了组织家庭一起购买的房产 非婚姻财产 （在双方结婚后单方面拥有的资产）—例如：自己用私人钱财购买的某公司的股份 其中一方的婚前所拥有的资产，可是在婚后资产的价值提升了—例如：婚前买的房子在婚后装修了使房子增值了 法官其实是没有一套固定的方法和程式来分配双方的财产。在法官考虑了所有有关的因素后，会尽量以公平公正的态度去下判决。可是， 有些方面的资产分配是预料之中：如果是婚姻资产，法官是会倾向于平分給双方。如果不是婚姻资产，前配偶将得到小部分的财产或事什么都分不到。 3. ‘我能不能向前配偶索取赡养费？’ 马来西亚离婚法第77条款指出法官可能要求男人在法庭上或离婚后提供赡养费給他的前妻。然而，女人也有可能被要求提供赡养费給她的前夫，但这只限于男人因健康因素（身体上或精神上）的影响而不能维持生计。 至于赡养费的金额，法官会慎重把双方各自的赚钱能力和财务需求纳入为考量的基准。除此之外，法官也会看夫妇结了多久的婚，妻子的年龄，家庭的生活水准和在婚姻里提供了多少财务上的支助给予妻子。 如果妻子婚后是家庭主妇，然后会因离婚而难以重回职场，法官会偏向于妻子而向另一方索取赡养费。即使妻子有稳定的工作和收入，也并不代表她没资格索取赡养费。可是相对于家庭主妇的立场，职场已婚妇女所得到的赡养费会比她们来的要少。 在法官判决赡养费的问题时， 法官也会观察这个婚姻的失败到底是谁给予的伤害最大。所以如果你是婚姻失败的罪魁祸首，那么你可能就不会得到那么多的赡养费。可是这也不代表只要你是无辜的受害者就会得到特别多的赡养费。赡养费的目的不是让你拥有的财富更多，而是让你有办法靠着赡养费来重拾你的生活恢复于正常生活的脚步。 如果领取赡养费的那一方被发现再娶或再嫁，赡养费将被法官停止发放（离婚法第82条款）。根据不同的情况，法官将保留至上的权力于更改赡养费有关的分配。 4. ‘我的孩子还能不能跟我一起住？’ 在决定孩子以后跟谁住的问题， 法官会考虑父母和小孩的意愿（如果小孩是可以清楚表达出自己独立的意见）。可是，最重要的基准还是优先考虑小孩的福利。这些问题都包含在离婚法第88条款。 对于孩子抚养的问题法官都有几个固定的法则： 法律上都假设小孩未满7岁都应该要跟随母亲比较好。当然，父亲也可以争取孩子的抚养权。只要他能证明孩子的福利会因为跟随母亲而影响或是母亲不是一位负责任的父母。 如果因为抚养权的改变而打乱了小孩的生活方式，法官都比较不会特别去改变谁该抚养孩子。比如说，如果母亲不管与孩子分开后或前都已经把孩子都照顾好，法官不会轻易就改变谁该抚养的问题，因为那样会为孩子带来不必要的生活困扰。 不是每一种错的行为都会影响谁来抚养小孩，只有那些真的影响孩子的利益的行为才会作为考量。通常，出轨的父母亲不会因此而自动失去了孩子的抚养权，那些没有合理的理由而抛弃家庭的父母亲比较可能会失去孩子的抚养权。 在讨论抚养权的问题时，法官会允许另一个家长来探望孩子。通常探望/相处的时间都是这样安排的： 交替周末 一半的学校假期 交替公共假期 重要的节日（生日，农历新年，母亲节） 5. ‘我需不需要支付孩子的赡养费？’ 根据离婚法第93条款，即使父亲才是主要承担孩子一切的家长, 法官也有权让父亲和母亲一起承担有关孩子的费用。母亲才是其次对孩子的费用有责任的，法官不能强迫性的要求母亲承担孩子的费用，除非她的财务能力允许。父母的职责是提供孩子资本的需求，比如衣食住所和教育。 根据不同的案例，真实的金钱数额将会由以下引述来判断： 父母的财务状况； 孩子的需求；和 夫妻离婚前的生活方式 通常，孩子的赡养费的要求将会在孩子18岁后结束（离婚法第95条款）。然而，法官也有权利让父亲支付孩子的大学费用。在最近的案例里Shantini Pillay a/p Narayanasamy Pillay v Kanna Dasan a/l Narianasamy [2018] MLJU 1199，法官下令让这名父亲承担孩子的大学费用但不包括硕士的费用。 最后，请记得咨询家庭律师的意见 离婚的过程是可能非常压力的和应该要去寻找专业的律师来讨论你的问题。没有一样的婚姻问题，每个婚姻的问题都不会有完全一样的解决方案。有了律师的专业意见，你会比较明白你现在的位置是什么和有什么选择可以做来解决你现有的问题。比如说，你可能不想要和你的伴侣闹上法庭，比较想要庭外和解，那样可以减少上法庭的费用和浪费过多的时间来解决问题。 你也可以考虑申请法定分居，不一定要离婚。法定分居代表你和你的伴侣在法律上是分居了，可是你们之间的婚姻还是有效。如果你不确定法定分居对你比较好，那你可以询问家庭律师的意见。"
"Boleh tak syarikat tukar deskripsi kerja korang... lepas korang sain kontrak? [Click here for English version] Cuba korang bayangkan situasi ni: Korang dapat jawatan Eksekutif Jualan di sebuah syarikat dan segalanya okey je selama 6 bulan korang bekerja di sana. Korang ada bos yang baik, dapat capai target bulanan, dan akhirnya korang mula rasa selesa dengan kerja korang tu. Tapi, semua tu mula berubah bila korang perasan yang korang sekarang mula buat kerja lain...atau lebih tepatnya, korang mula buat kerja di luar bidang tugas korang. Korang pun persoalkanlah hal tu kepada bos korang, tapi dia cakap – apa yang korang buat tu semuanya di bawah tugas korang sebagai Eksekutif Jualan. Tapi korang rasa lain macam jugalah, sebab setakat yang korang tahu, apa yang korang buat tu tak ada dalam kontrak pekerjaan. Apa yang lagi teruk, korang tak dibayar untuk buat semua tu. Jadinya, timbullah persoalan sama ada boleh atau tidak syarikat tukar deskripsi kerja korang selepas korang tandatangan kontrak? Seorang wanita pernah saman syarikatnya sebab perkara ni Untuk menjawab persoalan ni, kita kenalah tengok kes-kes yang pernah dibicarakan di Mahkamah Perusahaan. Salah satunya adalah kes Ng Bee Yoong v. Capital Development Sdn Bhd, di mana pekerja ni pada mulanya berkerja di bawah Petaling Garden Berhad (PGB). Dia kemudiannya dipindahkan ke anak syarikat PGB, iaitu Capital Development Sdn Bhd (syarikat yang Bee Yoong saman lepas tu). Pada tahun 2009 – Capital Development dan PGB dah menjadi anak syarikat milik penuh PNB Commercial Sdn Bhd. Setahun lepas tu, Bee Yoong dapat surat pertukaran yang memintanya menerima jawatan di syarikat lain milik PNB...dengan skop kerja yang berbeza sama sekali. Pada mulanya, dia bekerja sebagai Pengurus Hartanah di Capital Development dan kemudiannya dia ditawarkan berpindah menjadi Pengurus Jualan dan Hartanah di Hotel Sri Petaling KL iaitu syarikat di bawah PNB. Hal ni boleh dikatakan sebagai penurunan jawatan jugalah dari yang sebelumnya. Senang cerita, dia dah diminta supaya bertukar jawatan kepada jawatan baru yang dia tak layak untuknya. Jadinya, dia pun tolak tawaran tu. Tapi rupa-rupanya, syarikat ada rancangan lain kalau tawaran ditolak. Mereka pun buat keputusan untuk pecat dia sebab tak terima tawaran berpindah. Bagaimanapun, tindakan syarikat ni dah membuatkan berlakunya kes tuntutan mahkamah yang besar, sampaikan dia berjaya menang dan dapat RM173,990.40! Syarikatnya kata yang dia dipecat sebab Bee Yoong meninggalkan pekerjaannya tanpa memberi notis yang cukup, dan gagal membalas surat pertukaran yang diberikan oleh syarikat. Jadinya, bila pertikaian ni sampai ke mahkamah, ada 2 perkara yang perlu diputuskan. Mahkamah bersetuju dengan pekerja tu Dalam kes ni, Mahkamah Perusahaan ada 2 isu yang mereka kena bagi keputusan: Sama ada syarikat memecatnya secara tak adil di bawah pemecatan konstruktif. Sama ada tawaran pertukaran tu adil kepada pekerja. Jadinya, sebelum kita tengok dengan lebih terperinci tentang keputusan tu, kita kena tahu dulu apa dia pemecatan konstruktif ni. Secara amnya, pemecatan konstruktif terjadi bila majikan melanggar terma dalam kontrak pekerjaan, yang membawa kepada seseorang pekerja tu meletakkan jawatan atau dipecat. Tuntutan ke atas pemecatan konstruktif boleh dibuat di bawah Seksyen 20(1), Akta Perhubungan Perusahaan 1967, yang menyatakan – tak ada pekerja yang boleh ditamatkan pekerjaan mereka tanpa sebab dan alasan. “Apabila seorang pekerja, tanpa mengira sama ada dia merupakan seorang ahli suatu kesatuan sekerja atau sebaliknya, menganggap dia telah diberhentikan kerja tanpa sebab atau alasan yang adil oleh majikannya, dia boleh membuat representasi secara bertulis kepada Ketua Pengarah untuk pemulihan kerja pada pekerjaan lamanya; representasi tersebut boleh difailkan di pejabat Ketua Pengarah yang terdekat dengan tempat kerja di mana pekerja tersebut diberhentikan.” Berdasarkan undang-undang di atas, mahkamah dalam kes ni menyimpulkan yang pekerja berkenaan ada tuntutan di bawah pemecatan konstruktif. Mahkamah juga kata yang pemecatan tu dibuat tanpa sebab atau alasan yang adil. Pertukaran pekerjaan juga dianggap sebagai tak adil, sebab deskripsi kerjanya tak sama dengan apa yang ada dalam kontrak pekerjaan. [BACA LAGI: Can Malaysian law protect you if your boss forces you to resign?] Ini dia antara isi surat yang diterima mahkamah, iaitu pekerja berkenaan dah beritahu majikannya bahawa terma pertukaran dan jawatan semula tugasnya tu sebagai tak adil: ""Pertukaran yang dicadangkan itu adalah ke syarikat yang berbeza, untuk skop kerja yang cukup berbeza, dalam industri yang sama sekali berbeza.... Deskripsi kerja untuk jawatan Pengurus Jualan dan Hartanah secara khusus mengharuskan saya untuk memiliki kompetensi pendidikan sekurang-kurangnya Diploma/Ijazah dalam Pengurusan Hotel dengan sekurang-kurangnya 5 tahun pengalaman dalam kerja berkaitan. Anda tahu benar yang saya tidak mempunyai kelayakan atau pendedahan sedemikian..."" Apa yang ditunjukkan di mahkamah ni menggambarkan yang pekerja berkenaan sedar dengan pertukarannya tu tak adil, dan juga kontrak pekerjaannya tak pernah kata yang dia akan ditukarkan ke satu kerja yang skop tugasnya tu sangat berbeza. Jadinya, kalau korang pernah diberikan jawatan semula dan ia di luar skop tugas korang, ini apa yang korang kena tahu: Syarikat tak boleh paksa pekerja buat tugas baru Secara umumnya, syarikat mempunyai hak untuk memindahkan pekerja dalam lingkungan syarikat. Tapi dalam kes ni, syarikat yang terlibat adalah 2 syarikat yang berbeza dan skop kerja juga tak sama dengan apa yang disebut dalam kontrak pekerjaan. Makanya, majikan kena pastikan yang mana-mana pertukaran pekerja tu tak patut mengubah deskripsi kerja dalam kontrak pekerjaan secara ketara. Ia juga bukannya penurunan jawatan dan tak dibuat dengan niat jahat terhadap pekerja berkenaan. Kalau pekerja merasakan apa yang berlaku kepadanya tu sebagai pemecatan tak adil – sebab cuma tak terima pertukaran kerja atau skop kerja baru, korang bolehlah membawanya ke Mahkamah Perusahaan. Seksyen 30(5) Akta Perhubungan Perusahaan 1967 menyatakan: ""Mahkamah hendaklah bertindak menurut ekuiti, hati nurani yang baik dan merit penting kes tanpa mengambil kira bidang teknikal dan undang-undang."" Jadinya di sini, mahkamah akan mengambil kira kebajikan pekerja yang dah dipecat secara tidak adil tu. Tapi korang juga kena ingat, yang korang cuma ada 60 hari untuk memfailkan aduan selepas dipecat. Korang boleh semak cara melakukannya, di sini. Kalau mahkamah dapati korang dah dipecat secara tak adil, korang akan diberikan faedah-faedah tertentu. Antaranya seperti, tuntutan yang dinyatakan di bawah Peraturan Kerja (Faedah-faedah Penamatan dan Rentikerja Sentara) 1980. Bagaimanapun, terdapat juga syarikat-syarikat yang ada polisi-polisi dan peraturan dalam hal faedah-faedah penamatan ni. Jadinya, lebih baik korang periksalah dulu dengan syarikat masing-masing."
"Here are 4 things that used to be legal in Malaysia... but are illegal now If you were to trace back on how Malaysia's laws are what they are today, you'd have to look back at least 600 years into the past. During that time, our laws were shaped by so many influences such as religion, the Malacca Sultanate and even the British rule in Malaysia. Today, most of our settled laws today are largely influenced by British law, but some of our cultural customs have also made it into our law books. After we gained independence from the British, many laws were kept, but some were tweaked and even abolished because they weren’t relevant to us anymore. And so to fill in some of these legal gaps, we also created a few new laws of our own. For instance, there weren’t any laws on children smoking back then. While this may have been morally wrong, it couldn’t be said to be illegal… simply because there was no law against it. So, the Malaysian government eventually passed a law banning the sale and consumption of cigarettes by minors. There have been several changes like this over time, but let’s look at 4 specific laws that were changed some years ago. 1. Having your IC with you at all times If you’re a Malaysian, you’d most definitely have a MyKad, an identification card that has all your information stored in it. The MyKad was only introduced in 2001, so some of you might have also had the ‘old IC’ which existed before the MyKad. Now, this old IC came about in 1948, even before Merdeka! These ICs were issued during the emergency period, so it’s not difficult to see how important it was back then. But before this IC came about, the government still kept records of who was in the country, long before that. In 1895, there were separate laws that governed the births, deaths, burials, marriages and divorces that took place in Malaysia.This law operated under the Federal Council, a body created by the British to be in charge of Malaya’s laws. The task of managing registration laws were then passed on to the National Registration Department, or JPN as is it known today, when it was finally set up. This very law on registrations made it mandatory for births, deaths, marriages and divorces in the country to be registered. However, there wasn’t a penalty specified if someone didn’t have these documents with them all the time, especially the IC. This did change, though, and going out without your IC did become an offence. But it took a long time before you could get fined for not having your IC with you, because it was only in 1999, when the National Registration Regulations was passed. Under Section 25(1)(n) of these regulations, you can be fined up the RM 20,000 or jailed for a maximum of 3 years if you don’t have your IC on you when an abang or kakak polis asks to see it. If you’re wondering whether anyone has actually been caught under the law for this, the answer is yes. Here are some cases: a Sabahan man who could not pay the fine or bail money, so he was jailed for 6 months a single mother who was fined RM250 a man who just got out of jail was fined RM700 You can see that the penalty given varies from case to case, and a lot of it depends on the circumstances of when the IC was asked for. Also, it’s important to note that this law applies whether you just forgot to bring your IC along, or you just refuse to show it to the police officer. 2. Selling cigarettes to minors If you go to a mamak or basically any convenience store that sells cigarettes, you’d most definitely see the sign above behind the counters. We definitely wouldn’t want children to be smoking or even buying cigarettes for someone else, so a sign a like this does make sense. But some of our readers here may remember being sent to the shop by their parents to buy a packet or two for them. Shopkeepers didn’t usually say anything, and they would just sell it to the child without any reservations. And that’s because, up till about 26 years ago, there were actually no laws against selling cigarettes to a minor. So, only in 1994 was a law passed where the sale of cigarettes to anyone under the age of 18 became an offence. There’s no specific Act for this at the time, but a list of regulations regarding smoking was drafted in 1993, and this then took effect in 1994. These regulations were known as the Control of Tobacco Product Regulations 1993 and besides banning minors from purchasing cigarettes (and it being sold to them), it also banned the distribution of free cigarette samples and setting aside smoke-free zones, among other things. Unfortunately, a copy of these regulations is not publicly available, but you can see some of the changes made to it over the years here. Then later, this ban on the sale of cigarettes to minors was incorporated into the Food Act 1983. To clarify, the Food Act existed since 1983, but this ban on minors smoking was added only after 1994, and it can be found in Section 36(2) of the Act which says: (e) the prohibition against the sale to, or having in possession, buying, smoking or chewing by, persons below the age of eighteen years of tobacco products; The Act does not mention what the penalty is for parents who make their kids buy them cigarettes, but a shopkeeper who sells cigarettes to a child will be fined a maximum of RM10,000 or be jailed for a maximum of 2 years. The Act says that the same penalty applies to a child who smokes, but a minor may receive a different punishment, depending on the circumstances of the case. [READ MORE: In Msia children CAN be sent to jail, but only for certain crimes. Here's what they are] 3. “Kootu”/chit funds If you don’t know what this is, you’re too young we’ll give you a brief overview. Kootu is basically a money saving scheme where a group of people contribute an amount of money every now and then, and each member takes turns to spend the sum of money for their personal use. That way, everyone gets to enjoy a bigger sum of money although they only contributed a small share. Seems pretty harmless, right? Well, yes and no. Kootu was a practice that originated from India, but this practice was eventually followed by other ethnic groups in Malaysia. Friends in small communities saw kootu as a way to allow them to cover bigger expenses each month, while not having to take loans from banks. If they had to take loans, they would have to pay an interest as well. As time went by, what was an innocent practice among friends and neighbours turned into a business. People started setting up kootu businesses, and they were also charging a fee for it… which totally defeated the purpose of having a kootu fund. So, in 1970, Parliament passed the Kootu Funds (Prohibition) Act to stop kootu businesses from sprouting. Anyone found guilty of this was fined a maximum of RM5,000, or they could be sent to jail for a maximum of 3 years. Basically, it’s fine to have a kootu fund with your circle of friends but you can’t turn it into a business and you can’t charge an interest on the money. [READ MORE: What are ""kutu funds"" and why are they illegal in Malaysia?] 4. The use of pesticides Pesticides. We don’t think about them, and we probably don’t know that much about them. But it IS a known fact that pesticides are used to kill insects in plantations, and too much of it can have adverse effects on our health. Pesticides in themselves aren’t bad, and people have been using natural pesticides for thousands of years. But chemical pesticides were only invented around the start of World War II. We’re not sure when exactly chemical pesticides reached Malaysian soil as there are no proper records of it, but it is safe to say that they’ve been around for awhile. It was only in 1974 that strict laws on pesticides were introduced, through the Pesticides Act. Under this law, there was a restriction on how much pesticide could be used on food, and what pesticides were allowed in the first place. But not only that, this Act also states that those who manufacture, sell and even store pesticides need to have licenses for it. It’s a super lengthy Act, with laws for even how officials should deal with a case where someone has died from pesticide poisoning. So, good news, now you don’t have to worry about whether your chap fan veggies are safe to eat."
"4 women you didn’t know helped shape Malaysia and its laws We’ve been celebrating international women’s day for more than a century. But before it became the International Women’s Day, it was just a National Woman’s Day that started in the United States. In 1909, the Socialist Party of America celebrated National Women’s Day, in order to commemorate a strike by garment factory workers in 1908, mostly women, who protested the low wages, poor working conditions and sexual harassment they faced. A few countries in Europe started to celebrate it after that, such as Denmark, Germany, Switzerland and Austria. But it eventually reached international attention when the UN began celebrating it too in 1975. We’ve had a whole lot of influential women too, so for this year’s International Women’s Day, we look back at the women who helped shape Malaysian law into what it is today. 1. B.H. Oon Lim Beng Hong, better known as B.H. Oon, was the first Malaysian woman admitted into the British Bar in the 1920s. However, when she came back to Malaya, she couldn’t practice, as under the law women weren’t allowed to be admitted to the Bar. But the law was actually changed for her, allowing her to freely practice after that. This made her the first female lawyer in Malaya. However, there was a dispute whether this change was legal or not. It was only in 1935, after 8 years of uncertainty that it was finally decided that yes, the changes to the law were legal: women can officially practice law in Malaya. She also helped play a part in helping those affected by the war. When the Japanese invaded Malaya in the 1940s, she moved to Singapore, which was also invaded shortly after. There, Oon took the risky move of helping to smuggle letters to prisoners of war in Changi prison. When the British took back Malaya post-World War 2, they formed a Federal Legislative council. The council was set up to create the laws for Malaya, as one of the first steps for the British to grant independence. Only two women were appointed in the council, and Oon was one of them. She was a member from 1948 to 1955, and helped shape many of the laws we have today. Her achievements and contribution in her field was recognised by the British, who awarded her with the Order of the British Empire (OBE) in 1953. [READ MORE: Who was Malaysia’s first female lawyer?] 2. A. Chandramalar Chandra, as she prefers to be known, was never one to hide from the action. During her time leading the Anti-Vice Branch in the Penang police HQ—the first woman to head such a division—she was personally involved in the raids, where her team of 15 would raid up to 200 brothels or gambling dens a month in the 1970s. Sometimes she would literally lead the charge, kicking down locked brothel doors with just one kick (Her advice? Aim for the hinges) She also maximised her opportunities whenever possible. Raiding brothels required a warrant, which is stated in the Girls Act. However, drug raids didn’t, as raiding without a warrant is allowed under the Dangerous Drug Acts. Hence she tended to tag along with drug raids, as prostitution and drugs tend to go together. Her attitude made her efficient, but rubbed some of her superiors the wrong way, leading her to not getting a promotion for 17 years. However, a corruption charge against her during that time not only cleared her name, it brought her to the attention of the Inspector General. This lead to a series of promotions culminating with her as the Assistant Director for the Criminal Investigations Department. She retired as an assistant commissioner—the first non-Malay woman to achieve the rank. 3. Tengku Maimun In 2019, Datuk Tengku Maimun Tuan Mat became Malaysia’s first female Chief Justice (CJ), which is basically the country’s top judge. However, what brought her attention wasn’t the fact that she was the first female CJ; rather, it was her decision making and independence when judging over court cases, with some of them being landmark cases in Malaysian law. One of her highest profile cases is on deciding whether Muslim children born out of wedlock should be allowed to have their father’s surname. She decided that these children should be allowed to do that instead of using ‘bin Abdullah’, as children didn’t need to carry the stigma of being born as an illegitimate child. She was also involved in another case involving children, this time on the unilateral conversion of a child by a parent. A Buddhist man had appealed to the court, after his ex-wife had gained custody of their children, then converted them to Islam without his consent. Tengku Maimun reversed the decision to hand the children to the mother, and decided that for children to be converted to Islam, both parents must consent to it. And back in 2014, the late Karpal Singh, the renowned criminal lawyer, was charged for sedition. Two out of the three judges in his case found him guilty for it, except for one--Tengku Maimun. She voted to drop the charges against Karpal, as she thought he was just stating his legal opinion on a case instead of being seditious. Karpal was eventually acquitted posthumously in 2019, with his seditious charges dropped. [READ MORE: 5 things you need to know about Malaysia's first female Chief Justice] 4. P.G. Lim Tan Sri Lim Phaik Gan, better known as P.G. Lim, was one of Malaysia’s first female lawyers, as well as Malaysia’s first female ambassador, serving as the deputy representative to the United Nations. She’s known as a tough fighter, and was involved in many high-profile cases back in the day. In 1968, she defended 11 youths who were sentenced to death for collaborating with Indonesian militants during the Confrontation, as well as for possessing arms. She successfully secured a royal pardon for all the youths from the Sultan of Johor and the Sultan of Perak. [READ MORE: How do royal pardons work in Malaysia?] She was also involved in national policy which is still used today. When Parliament was suspended after the 1969 riots, she was one of the two women chosen to the National Consultative Council, which drafted the National Economic Policy, as well as the Rukunegara which we all still recite until today."
"In Msia children CAN be sent to jail, but only for certain crimes. Here's what they are When you think of serious crimes, you’d normally imagine a man (or woman) committing the crime—regardless of how small or big it is. Very rarely would we consider that a child can also be capable of committing crimes. Statistically speaking, there were approximately 4,569 criminal cases involving children in 2015 alone. These crimes varied from petty cases such as skipping school to more grave, serious ones like murder and drugs. Now here’s something you should know before we go further into the article: Children below the age of 10 cannot commit a crime in Malaysia. Yes, you read that right. This is simply because the law gives them complete immunity under Section 82 of the Penal Code, which says as such: “Nothing is an offence which is done by a child under 10 years of age.” This basically means, that a child younger than 10 is not required to attend any court proceedings for whatever crime he did. Now, there are some rules that the Malaysian law has laid out on how children can be punished for any crimes they do. But first, let’s establish who’s considered a child in the first place... Who is a child? If you consider yourself a child because you’re young at heart, you’d be pretty devastated to know that our Malaysian courts won’t agree with you. The Child Act 2001 applies only if an accused is a “child”. Section 2 of the Child Act specifically defines a person to be a “child” as: A person below the age of 18; and A person who’s 10 years old and above. As we mentioned earlier, children below 10 years old will not be tried in court for any offence. So the age group of children who can be tried in court for committing crimes are from 10-18 years old. After the age of 18, the child (technically a teenager now) will be tried in a normal court. [READ MORE: Why does Malaysia have different courts and what do they do?] Children are tried in a different court from adults. If a child is charged with a criminal offence, the Court for Children has criminal jurisdiction on ruling whether the child is guilty or otherwise. [READ MORE: Did you know Malaysia has a special court for CHILDREN who commit crimes?] However, there are some crimes where children cannot be tried in the Court for Children, because of the severity of the crime they’ve committed. Serious crimes are crimes punishable by death There are some cases, where children may be tried in a regular court for the seriousness of the offence committed. This happens if the child is charged with an offence punishable by death. It is expressly stated in section 11(5) of the Child Act 2001: “...the Court have jurisdiction to try all offences except offences punishable with death.” Basically, children who commit serious crimes such as murder, unlawful possession of firearms, drugs and kidnapping will be classified to be tried under normal courts. In fact, the Act also goes on to list down some of the serious crimes where children can be brought to a normal court. The interpretation is as below: “grave crime” includes— (a) the offences of murder, culpable homicide not amounting to murder or attempted murder; (b) all offences under the Firearms (Increased Penalties) Act 1971; (c) all offences under the Internal Security Act 1960 punishable with imprisonment for life or with death; (d) all offences under the Dangerous Drugs Act 1952 punishable with imprisonment for more than five years or with death; and (e) all offences under the Kidnapping Act 1961.” So if a child is caught for any of these crimes listed above, he can be brought to stand in a normal court, instead of the Court for Children and can be sentenced for the crime. But there are other important things that determine this... The Agong decides the sentence for the child For crimes that are not classified as grave crimes, the punishment differs for the child who commits it. Some punishments include probation, being sent to Henry Gurney Schools or paying a fine (by their parents, of course). However, jail sentences aren’t completely ruled out either. The age of the child also comes to play when being punished. Section 96(1) of the Child Act states: “A child under the age of fourteen years shall not— (a) be ordered to be imprisoned for any offence; or (b) be committed to prison in default of payment of a fine, compensation or costs.” Basically, a child below the age of 14 shall not be sent to prison. However, even if the child is above the age of 14...a jail sentence isn’t exactly the first choice of punishment either. The Act gives a leeway, where the child can be punished in other ways that are suitable for him. As we mentioned earlier, this could involve being sent to Henry Gurney, probation or a jail sentence—as the court thinks fit. However, it’s a whole different ball game if the crime committed by the child falls under the category of grave crimes. In Public Prosecutor v KK (2003) a minor was accused of killing his tuition teacher’s 11 year-old daughter. He stabbed her 20 times as he was provoked by the victim, who had apparently laid out the knives, daring him to hurt her. The child was tried in the High Court, as he was sentenced for committing a serious crime. The court upheld his conviction based on the law, as such: “I conclude that the provisions under s. 97 (2) of Act 611 is mandatory. When a court finds a child guilty and convicts him of an offense punishable by a death sentence, the court must order the child to be kept in prison for as long as the Yang di-Pertuan Agong or the King of the Government or the Head of State as the case may be...”—Ahmad Maarop J. The court found the boy guilty for the murder of the 11 year-old girl as crimes such as murder are tried under the normal court. The crime of murder carries the death penalty in Malaysia, but children cannot be punished under that sentence. Instead, the boy was sentenced to imprisonment, as construed by Section 97 of the Child Act: “In lieu of a sentence of death, the Court shall order a person convicted of an offence to be detained in a prison during the pleasure of— (a) the Yang di-Pertuan Agong if the offence was committed in the Federal Territory of Kuala Lumpur or the Federal Territory of Labuan; or (b) the Ruler or the Yang di-Pertua Negeri, if the offence was committed in the State.” The Act essentially says that a child cannot be given the death sentence, but will be imprisoned as per the discretion of the Agong. The child’s case will also be reviewed once a year and may be recommended to the YDPA for an early release from prison. [READ MORE: How do royal pardons work in Malaysia?]"
"Here are 3 things that can happen if someone reports you to PDRM It’s Saturday night and you’re at home with your family watching TV. Then you hear the doorbell ring. You think it’s the GrabFood delivery guy, but much to your surprise and utter confusion, you see two PDRM officers standing outside your door. They tell you that your neighbour has filed a police report against you because her cat is missing, and she believes you have done something to it, because you’re always chasing it away. So now, the two PDRM officers tell you that you must follow them to the balai polis so that they can ask you a few questions. You have no idea what happened to the cat, but you don’t want to go against their orders, so you just follow them. But you’re terrified because you don’t know what’s going to happen next. And you’re thinking that you might end up in jail. But here’s the truth: you won’t be jailed just because there’s a police report to your name. There’s a process that has to be followed before someone can be thrown behind bars, so let’s break it down. Not all reports will be investigated Police reports are filed for various reasons. We make police reports when someone hits our car or the car goes missing. And yes, police reports would also most likely be made if a pet is suspected to have been harmed or stolen. So, due to the very fact that police reports are made for a wide range of reasons, there can be a few outcomes of making a police report. But they can be narrowed down to these: The report will not be looked into, and it will be ‘dropped’, mainly because there was insufficient proof for the case, or the person making the report lied. This is known as ‘No Further Action’ (NFA). Your report is looked into investigated. But the investigations still don’t show that you were involved. You walk free. You report is looked into and investigated as well, there is some proof that you could have been involved, so you end up in court. And from there, they either find you guilty or not guilty. We don’t want to go into how a case is decided in court, because that’s not what this article is about. But we will tell you what is done after a report is made, and how a decision is made as to whether or not any further action is taken. Another separate but related point to note is that sadly, there’s nothing you can do about a report like this. Meaning, you can’t ignore the report or ask for it to be taken back. The best thing to do is to cooperate with the police. But don’t worry, if you are ever arrested, you’ll still have a set of rights guaranteed to you, which can be found in the Red Book. But the bottom line would be to just work together with the police until the investigations are complete. [READ MORE: Don't know your rights with the PDRM? Here's a cheat sheet to download] Now, let’s backtrack a little to what happens as soon as someone makes a police report against you. The country’s “head lawyer” will decide if the report should be investigated Here’s a fact that you may or may not have known: a police report can be made verbally or in writing. However, the police officer in charge will need to record this statement on paper and have the person made the statement sign it. So either way, this report will be documented. But investigations don’t start immediately after that. The police will send this documented report over to the Attorney General’s Chambers. In case you weren’t aware of who the Attorney General or AG is, he is basically the “chief of lawyers” of the country. So, the AG (or the lawyers in his chambers/department) will look at the details of report and decide whether the report should be investigated or not. They will have to look at all the facts in report and see if there’s enough evidence to go ahead and start a criminal case investigation against you. If there is, they will then get the police to ask surrender yourself at the police station. Alternatively, they will ask the court to issue a warrant to arrest you (an authorization to arrest). For more serious crimes, the AG’s Chambers can ask the police to arrest you without a warrant. But all this happens only if the AG’s Chambers are convinced that there’s actually a case against you. We mentioned above that another outcome of a police report is that there is no action taken on it. So, this happens when the AG or the lawyers under him are sure there is insufficient evidence to prove that you did the crime, or that the claim made by the person itself isn’t strong enough for a criminal investigation to be started. The police report against you will then be marked as ‘No Further Action’ (NFA). Let’s turn the tables for a minute and assume that you were the one making the police report. If the police told you that no further action can be taken against your report this isn’t the end of the road. You can appeal this decision, and you can read about this in the article below. [READ MORE: What can you do if the PDRM is not investigating your report?] Your name will still be in police “records” even if you’re found to be innocent Now, let’s say that investigations are started and the case goes to court. There, the judges decide that you are indeed guilty of the crime. If this happens, then it’s understandable that you would have a criminal record, and this record will be stored in a database. But even if you are said to be innocent, the police report that was filed against you will still be documented. PDRM has its own database of recorded cases, and this is where the report against you will be stored. In the event the case is reopened or new evidence is found, the police will able to retrieve the report from their database. So, its important to draw a distinction between a criminal record and police records. They are sometimes used interchangeably, but while a criminal record is a lifelong record of all the crimes you’ve done, police records refer to documents kept by the police as proof of reports made to them. The report cannot be withdrawn After reading through all this, you might have one question in mind: What if the report against me is taken back? For starters, a police report cannot be withdrawn. Once a “wrong” is reported, it is the duty of the police to investigate it and for the courts to penalize the person if needed. But let’s say there was a misunderstanding between the person who reported the case and you, and that misunderstanding has been resolved. Even in this instance, withdrawing a report will be almost impossible. The person, however, can write an application to the Public Prosecutor (criminal lawyer representing the country/government) asking that no action be taken against you. But take note that is just like an appeal, meaning the AG can allow it, or they can reject it and still ask the police to investigate the case. Again, it’s important to remember the distinction between a criminal record and police records as we mentioned above. So, if someone makes a police report on you but you were found to be innocent, you don’t have to worry even though the records of that report will still exist. This is because it doesn’t have any legal repercussions and you’ll still be able to get a job, buy property, and still live a normal life."
"Pramugari Malaysia ni dipecat sebab 'gemuk' DAN mahkamah setuju dengan syarikatnya [Click here for English version] Penafian: Syarikat penerbangan itu tidak pernah merujuk kepada pramugari tersebut sebagai 'gemuk'. Tapi, dia hanya memiliki berat badan yang berlebihan untuk seorang krew kabin. Kami menggunakan perkataan ‘gemuk’ untuk ilustrasi yang lebih baik tentang isu berkenaan. Tak kisahlah korang selalu atau tak kita naik kapal terbang, tapi apa yang pasti – kita semua tahu pasal pramugari/pramugara yang selalunya cantik-cantik dan segak-segak belaka. Selain dari memastikan para penumpang selesa dalam semasa penerbangan dan bantu mereka bila ada kecemasan, krew kabin ni juga sentiasa mengekalkan imej sepanjang masa mereka beruniform. Tapi rasanya, tak pernah pula kita terfikir yang imej mereka tu penting sangat, sampai boleh membawa kepada pemecatan. Tapi itulah yang jadi kepada seorang pramugari/penyelia penerbangan di Malaysia ni, apabila dia tak dipecat sebab tak cantik atau apa-apa, tapi sebaliknya kerana berat badan dia lebih… 700 gram. Syarikat penerbangan kata, tu memang dasar mereka Jadinya di sini, apa yang syarikat penerbangan tu buat bukanlah sebarangan je, tapi sebenarnya ia sebahagian dari dasar syarikat. Sebabnya, manual penjagaan untuk krew kabin adalah mereka sepatutnya berada pada 'berat optimum'. Berat ni diukur menggunakan Indeks Jisim Badan (BMI), yang mana keadaan seseorang tu dinilai melalui nisbah berat dan tinggi mereka. Jadi untuk kes ni, ketinggian pramugari tu adalah 160cm dan kalau ikut ukuran BMI untuk ketinggiannya tu – berat badan yang dia kena ada tak lebih dari 61kg. Mereka dah menimbangnya beberapa kali, dan berat terakhirnya pada April 2017 adalah 61.7kg, atau 700 gram lebih dari berat yang dibenarkan. Tak lama lepas tu, dia dah diberhentikan kerja dan alasan yang diberikan kerana dia tak mengekalkan imejnya seperti mana yang ditetapkan syarikat. Pada September tahun sama, dia dah bawa kesnya tu ke mahkamah dan mendakwa dirinya dah dipecat secara tak adil. Dakwaannya tu di bawah Seksyen 20(1), Akta Perhubungan Perusahaan 1967 yang menyatakan: “Apabila seorang pekerja, tanpa mengira sama ada dia merupakan seorang ahli suatu kesatuan sekerja atau sebaliknya, menganggap dia telah diberhentikan kerja tanpa sebab atau alasan yang adil oleh majikannya, dia boleh membuat reprsentasi secara bertulis kepada Ketua Pengarah untuk pemulihan kerja pada pekerjaan lamanya; Jadi pada asasnya, disebabkan dia merasakan dirinya dah diberhentikan kerja secara tak wajar dan adil, dia boleh memfailkan aduan kepada Ketua Pengarah Mahkamah Perusahaan. Dari situ, kesnya akan dirujuk untuk pendengaran di Mahkamah Perusahaan. Seksyen dalam akta ini juga menyatakan – kalau kesnya tu berjaya, dia boleh dapatkan kerjanya balik. Dalam hal ni, bagi kita semua ia mungkin nampak munasabah untuk dia bawa kesnya tu ke mahkamah. Sebabnya, memang jarang-jaranglah kita dengar orang kena pecat sebab lebih berat badan kan? Tapi… Mahkamah putuskan – tindakan syarikat penerbangan tu betul Korang mesti terfikir yang mahkamah akan buat keputusan memihak kepada pramugari tadi. Tapi rupa-rupanya, mahkamah buat keputusan memihak kepada syarikat penerbangan, dengan kata – dasar syarikat mesti dipatuhi. Bagi menjelaskan lagi keputusan tu, mahkamah memberikan beberapa sebab lagi kenapa keputusan itu dibuat: dasar syarikat itu tidak mendiskriminasi kerana ia terpakai kepada setiap orang, dan bukan hanya kepada penyelia penerbangan sahaja syarikat penerbangan itu dah memberikannya ""ruang dan peluang yang mencukupi"" untuk mencapai berat badan optimum, tapi dia gagal berbuat demikian (pada dasarnya, dia ada 18 bulan – sejak kali pertama menimbang berat sejak polisi itu dilaksanakan, sehingga masa dia dipecat – untuk menghilangkan 700 gram itu) dia dah terlepas beberapa jadual timbang berat sebelum ini dia dah bekerja dengan syarikat itu selama 25 tahun dan timbang berat ni dah selalu dilakukan dari masa ke semasa. Tapi dia tak pernah mengadu tentangnya, yang kelihatan seperti dia tak ada masalah dengan perkara itu Peguam pramugari itu ada berhujah yang 700 gram tu tak akan beri kesan terhadap kualiti kerja seseorang. Bagaimanapun, hakim-hakim kata yang syarikat penerbangan memang dah nyatakan sejak notis 2015 yang penampilan krew kabin adalah faktor yang sangat penting untuk pengalaman penerbangan penumpang-penumpang mereka. Sekali lagi, hakim menyebutkan – disebabkan pramugari tadi tak ada masalah dengan aktiviti menimbang berat ni sejak dari dulu lagi, ia tak memperlihatkan dasar syarikat itu sebagai tak adil. Maka akhirnya, pramugari tadi pun kalah dalam kesnya. Tapi bukan tu je… Dia juga tak boleh dapat kerja lain Selain dari hilang pekerjaan di syarikat penerbangan, pramugari tu juga tak ada peluang yang tinggi untuk mendapatkan peluang pekerjaan yang lain. Berdasarkan beberapa laporan berita, selepas dipecat dari syarikat penerbangan – dia dah diberikan peluang untuk menghadiri temuduga di syarikat lain. Tapi bila syarikat tu dapat tahu yang dia pernah kena pecat dan dianggap tak sesuai sebagai untuk tugas krew kabin, dia pun dinafikan jawatan baru. Ramai yang baca berita tu bersuara dan bagi sokongan kepadanya, termasuklah dari organisasi-organisasi tertentu. Ada juga persatuan pramugari-pramugara yang dikenali sebagai Kesatuan Kebangsaan Anak Kapal Kabin Penerbangan Malaysia (NUFAM). Bercakap tentang tindakan syarikat penerbangan terhadap pramugari itu, NUFAM berkata – yang ia sebagai “tidak berperikemanusiaan”. Mereka juga kata – “Keadilan dan hak asasi manusia telah mati sekali lagi”. Di samping itu, Women’s Aid Organization juga mengatakan ""kecewa"" terhadap apa yang terjadi kepada pramugari tersebut. Disebabkan kes ni pun baru je dilaporkan baru-baru ni, kami masih lagi tak tahu sama ada pramugari tu ada rancangan untuk ambil tindakan lanjut atas keputusan yang dibuat. Di bawah Seksyen 33B, Akta Perhubungan Perusahaan 1967, keputusan Mahkamah Perusahaan adalah muktamad (berbanding dengan mahkamah lain). Tapi masih terdapat beberapa kes di mana korang boleh buat rayuan ke Mahkamah Tinggi untuk menyemak keputusan itu. Hal ni dah pasti bergantung kepada fakta-fakta setiap kes dan sama ada pramugari tu boleh membuat rayuan atas keputusan mahakamah (dikenali sebagai semakan kehakiman) akan terpulang kepada Mahkamah Tinggi sendiri."
"If you sign contradicting Statutory Declarations in Malaysia, will you get in trouble? There has been a whole lot of political drama going on, which – at the time of writing – results in Tan Sri Muhyiddin Yassin being nominated as our 8th Prime Minister. But despite an apparent end to the drama, we’re beginning to see a teaser for a second season, with Pakatan Harapan declaring that they had 111 MPs signing a statutory declaration that supported Tun Mahathir as Prime Minister, with another three who verbally agreed to sign. We’ve already written an article on this, but the TLDR reason for this is because getting more than 50% of the 222 MPs in parliament to support you indicates that you have the confidence of most of the MPs. But this isn’t the first time a statutory declaration has become an important plot device. A few days before, PAS Deputy President Datuk Tuan Ibrahim Tuan Man claimed that PAS and UMNO had signed a statutory declaration supporting TS Muhyiddin as Prime Minister, which was denied by PAS’s secretary-general. Datuk Tuan Ibrahim later clarified that both parties eventually decided to call for parliament to be dissolved. So, the reason why the title of this article uses “You” instead of “Politicians” is because the use of statutory declarations aren’t limited to politics. You may have made one yourself at some point, such as when you buy a house under a housing scheme (more on this example later). And yes, you can get punished by the law if you make a false one but this also depends on the type of statutory declaration that has been made. Confused? Let’s start from the beginning, shall we? A statutory declaration is used as evidence… when there is no evidence The basic purpose for a statutory declaration (or SD) is to provide written proof to confirm something that either cannot be proven or involves too much work to actually prove. But SDs aren’t just regular written statements. The difference between this and a Facebook post is that it’s filed under oath (through a commissioner of oaths), and may be used in court. Examples incoming: Cannot be proven – You helped your brother flush the family goldfish down the toilet one night, and there are no witnesses. Because you feel bad, you make an SD that states the facts, who was involved, and that you were there. This can be used as evidence to ‘prove’ the crime that transpired that night, since there’s nothing else that does. Too much work – You’re buying a house under a scheme that gives a huge discount for first time housebuyers. Because the authorities cannot be background-checking every applicant’s assets, they ask you to sign an SD stating that you have never bought a house in your life. To ensure people don’t make false declarations, there’s an Act called the Statutory Declarations Act 1960. The Act goes on to provide penalties which are mentioned under Section 199 of the Penal Code: “Whoever, in any declaration made or subscribed by him...is bound or authorized by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false...touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.” In essence, the Act states that those who make a false SD will be charged for perjury (lying under oath) and can be jailed for up to 7 years. Before you start creating a list of “MPs that need to be thrown in jail for false statutory declarations” on Whatsapp though…. A false SD may not actually be “false”… We spoke to lawyer Fahri Azzat about the whole SD thing happening on the political front, and he said: “Depends on what they are affirming. If it's a preference, you look at the timing. If it is a question of fact (ie whether something did or did not happen), then you are vulnerable to being charged for affirming a false SD.” – Fahri Azzat What this means is that there are two “forms” of statements which you can make in an SD – a fact or a preference. A fact is pretty straightforward… if you declared (affirmed) in an SD that you are a first-time housebuyer, and there is a list of bank loans and documents showing that you have bought 3 other houses in the past (the conflicting fact), then you’ll likely be looking at perjury for making a false SD. However, a preference isn’t nearly as provable compared to a fact because, well, preferences change. If you somehow signed an SD declaring your love for My Little Pony, it would be true at that point in time. However, it’s also possible for you to move on to a different show and end up declaring your love for Naruto. In this sense, there is no conflict here and, if anything, you will just need to reaffirm that Naruto is your current preference at this point in time. So in the current political example, MPs could technically sign SDs in support of different people to be Prime Minister without necessarily getting in trouble for perjury. Instead, their most recent SD would be the one considered as “true”. Make sure YOU don’t sign a false SD! As mentioned earlier, statutory declarations aren’t limited to politicians or important people… it’s likely that you would encounter them as you progress through your stages in life. These are usually quite situational, but some employers may require you to provide an SD declaring your (lack of) criminal record, banks may require an SD saying you’re not a bankrupt before giving you a loan; and the list goes on. However, it’s more than likely that the Statutory Declarations we sign fall into the “fact” and “too much work” categories, so you might want to really make sure that what you’re declaring is the absolute truth."
"Just got the keys? Here are 5 things Msian developers must do for your new home You’ve just received a letter from your developer saying that the new home you purchased is now ready! You’re all excited to move in. But did you know that there are a few things you should take note of before you start living in a new home? Once your home is complete and you developer informs you about this, this is is known as a delivery of vacant possession notice. And under the law, you developer has to tick a few boxes off their list before they can hand you your new home. In your Sale & Purchase Agreement, you’ll be able to find what your developer needs to do before giving you your home as well as by WHEN you should receive your home. Here are some things to look out for after a vacant possession notice is issued to you: 1. Deliver your new home on time So, you find out that your home is now ready. But the next question to ask is… was it delivered on time? If your developer has successfully completed your home but it was delivered to you later than promised, you can take action against them. Your Sale & Purchase Agreement will state by when your home should be completed. But this time requirement can also be found in the Housing Development (Control and Licensing) Regulations 1989, where it says that your home needs to be delivered by: 24 months if it’s a landed property 36 months for strata property (condos, apartments, any high-rise homes and gated housing) So, if you find that your home has been delivered AFTER the time stipulated, you can sue them for breaching (breaking) their promise to deliver your home on time. Your Sale & Purchase Agreement will actually contain a line which gives you this right to sue. Of course, delays can happen for various reasons. If your developer took extra time to complete your home because of unforeseen circumstances, that delay can be excused IF you are willing to excuse it. But if you still want to claim compensation for it, you can. 2. Make sure your home has a Certificate of Completion & Compliance So, once your home is ready has been completed, a Certificate of Completion & Compliance will be issued for it. This certificate used to be known as a Certificate of Fitness for Occupation. An interesting fact about this certificate is that it is not issued by any Majlis Perbandaran (although, they used to be), but by the architects, engineers and draftsmen who worked on the construction of your home. Any one of these people is known as a principal submitting person. Under the law, these people have to fulfill certain duties before issuing your certificate. And this particular law can be found in Section 70(21) of the Street, Draining and Building Act 1974 which says: Before the issuance of a certificate of completion and compliance, it shall be the duties and responsibilities of the principal submitting person to- (a) supervise the erection of the building to ensure that the erection is in conformity with the approved plans and the requirements of the provisions of this Act or any by-laws made thereunder; (b) ensure that the building has been duly constructed and completed in conformity with the approved plans and the requirements of this Act or any by-laws made thereunder and that all technical conditions imposed by the local authority has been duly complied with; and (c) ensure that the building is safe and fit for occupation. This basically says that anyone who is a “principal submitting person” needs to declare that they had followed all the rules and regulations pertaining to your construction of your home. They would need to ensure that the house was built only following the building plan approved by your Majlis. This would also mean that they can only use materials that are approved for construction, and not low-quality materials. Only after they have confirmed all this can they issue this certificate for your home. [READ MORE: How does Malaysia ensure that its buildings are safe to use?] 3. Fix any defects in your home It goes without saying that if you buy something new, you’d want it to be in tip top condition. And of course, you’d want the same for your home, especially when you’re going to be living there and it needs to be safe. So, as soon as you get the keys to your home, make sure to do a thorough check of your entire home to ensure there are no cracks and other defects. If you do come across any, it’s best to take photographs as evidence to show your developer. But sometimes, some defects may not be visible to the naked eye. For this reason, you should get the help of a professional engineer or architect who will be able to point out other irregularities in your new home. Once you have identified all the defects, make a note of them in the Defect Complaint Form that your developer should provide you with. If your developer doesn’t fix these problems within 30 days of you sending in the form, you can send them an estimate quote of what the repairs should cost. But if you still don’t hear back from them after that, speak to your lawyer on how you can legally compel them to fix the defects in your home. [READ MORE: You now have more time to sue your developer in Msia for building defects. Here's why] 4. Make sure your electricity & water supply is working Once you’ve confirmed that there are no defects in your home, or you’ve already identified them and had them fixed, you’ll now need to make sure that the wiring and plumbing in your house work as well. This may sound like a really simple thing; electricity and water are something every home will have anyway. But the reason you should check it as soon as you get the keys is also so that you can identify major issues like leaky pipes and faulty switches. While they may seem minor at first, in the long run, they can be safety hazards as well. Anothe thing related to wiring would be your internet connection, something that has become a necessity for all of us. So, besides just pipes and switches, once you install your new Wi-Fi, make sure that it works in your area/for your unit as well. 5. Manage your property* *Take note that this only applies to strata properties. Based on the comments we get on our articles, we’ve noticed that a lot of our readers seem to have problems with their housing managements. So here’s what you need to know about the management set up by your developer and how they should help take care of your new home. In case you didn’t already know, your very first management will be your developer itself. But later, they will have to hand this role over to a newly formed management which will consist of people elected during the Annual General Meetings for your housing area. But just “forming” a management on paper will not be enough. Your management will have to actually fulfill a list of responsibilities that you can find under Sections 9 to 15 of the Strata Management Act 2013. But in short, your management will have to properly maintain your property using the maintenance and sinking fund contributions by you and the other residents. If you feel your developer isn’t managing your property as they should, you can file a complaint under the Strata Management Tribunal. And if they’re found guilty, they can be fined a maximum of RM250,000 or be jailed for a maximum of 3 years. [READ MORE: 5 things Malaysian condo owners can sue their management for]"
"Anwar claims to have formed a new gov't. Why does Malaysian law allow this? When we wrote this back in February 2020, there have been serious attempt was a successful attempt to change the current previous Malaysian government headed by current former interim former Prime Minister Tun Mahathir. There have been conflicting accounts on what actually happened behind closed doors. But regardless of what the true story is, the main goal is the same: someone is trying to get a majority of MPs to form a new coalition, and in effect create a new a government. This method is called creating a backdoor government. More recently, PKR President Anwar Ibrahim has attempted to pull a reverse card on the current government. He claims to have a ‘strong, convincing, formidable’ majority to form a new government, ousting the current Prime Minister Muhyiddin Yassin. However, he stated that this is not a backdoor government, and is merely restoring the PH government back into power. But creating a backdoor government is just an unofficial term used to describe this. There is no real definition of it listed anywhere. For this article, we asked Junian Yunus, a former political secretary, to help us understand this issue. And even people seasoned in politics find this definition unclear. To me the concept of a backdoor government is still hazy. There is no standard definition, or definitive definition. – Junian Yunus, former political secretary, answering through text interview But is this way of doing things actually legal? If you voted for a certain party, you might feel that it’s morally wrong for this to happen. But does the law agree with this sentiment? But first, let’s see how a backdoor government can be formed. There’s nothing wrong with going in the backdoor Let’s say there’s already a government in place. How would you get a new government in? It can change in several ways, and this is where the concept of backdoor comes in. To win Putrajaya, whether you enter it through the front or the back door doesn’t really matter. The most important thing is that you must have a leader, a person who the majority of MPs (Members of Parliament) support and have confidence in. When you think of a government, you think of the man at the top: the Prime Minister. He heads the government. He must be the one commanding the majority of the members of the Dewan Rakyat. – Junian One of the first ways is through a motion of no confidence, and how it works is pretty straightforward. During a Dewan Rakyat sitting, an MP just needs to get the majority of the MPs to support him, and to say that they don’t support the current Prime Minister. And the MP leading the motion can be anyone, but usually they are from the opposition. And a motion of no confidence is exactly that: the leading MP just needs people to vote or state they do not have confidence in the current leadership. But you don’t have to do it during a Dewan Rakyat sitting. In fact, changing your support to another MP could happen anytime at all. There are 222 members of the Dewan Rakyat, and you need a simple majority to form the government, which is 112. So whoever gets 112 or more gets to form the government. And this can happen anytime. Once you achieve this you can go over to istana and be sworn in as PM. – Junian [READ MORE: Why does Malaysia take so long to create or change laws] But all you need is the MPs support. And for them to voice support, they just have to declare it. They declare as clearly as they want to. It seems to be a trend now here that it’s done through statutory declaration. – Junian However, if the MP is a member of a party, then they can’t make their decisions by themselves. The MPs would have to follow their party’s decision. Which is why you have a party, because according to Junian, it is a “source of strength”. But if you’ve been following the news, you probably noticed that the Agong interviewed all 221 of the MPs on who they are supporting. Does the Agong actually need to hear the MPs support verbally, one by one? Actually Agong doesn’t have to do that. None has done it before him. It’s a clerical function. – Junian [READ MORE: Why is the Agong interviewing 221 MPs before electing a Prime Minister?] So what the Agong is doing is unprecedented. Forming a backdoor government, however, has happened before. Backdoor governments have happened before (and might happen again) Forming a backdoor government is completely legal, as currently there are no laws against it. There have been attempts before to make it illegal by making party hopping illegal. Sabah amended their state constitution in 1986 to make party hopping illegal. Any MPs wishing to switch parties would have to vacate their seats. Kelantan had also adopted a similar amendment in their state constitution before. However, all these amendments were made illegal in 1992, as they went against Article 10 of the Federal Constitution, which guaranteed the freedom of association. [READ MORE: There are no laws against party hopping in Malaysia. Here’s why ] And it might be too soon to say, but a backdoor government has never happened at a national level. [EDIT: It happened at a national level] [EDIT 2: It might happen again] However, it has happened at the state level a few times, most famously in Sabah. The exact scenario happened in the 1994 Sabah state election. Parti Bersatu Sabah (PBS), led by Joseph Pairin Kitingan, achieved a narrow victory over the Barisan National (BN) coalition, securing 25 seats to BN’s 23. However, their victory was short lived when almost all of the PBS MPs hopped parties to BN. Pairin was only Chief Minister for two days before he had to resign. The political term ‘katak’ was coined during this election, due to the mass exodus of PBS members hopping to BN. Despite it being legal, people have continued to speak up against party hopping. The late Karpal Singh, DAP’s former chairman, mooted an anti-party hopping law, requiring politicians to vacate their seat if they change parties. According to him, “Ethically, they should also quit the post as they were voted on a political affiliation of either Barisan Nasional or Pakatan Rakyat.” But forming a government is like playing a game: as long as you play by the rules, technically you’re not doing anything wrong. And in this game, the winner takes all."
"Are statutory declarations from UMNO MPs enough to remove our Prime Minister? Our political scene always seems to have new drama brewing – recently, Mahiaddin Yassin has declared that he is still our Prime Minister in a press conference last Wednesday, in response to Zahid Hamidi stating that UMNO has withdrawn their support for the Prime Minister. Mahiaddin previously held a slim majority of 112 in parliament, but with the withdrawal of at least 12 UMNO MPs, it’s possible that he has lost the simple majority. Zahid had also handed over to the Agong a few statutory declarations from MPs stating their withdrawal of support for Mahiaddin, with potentially more declarations coming in. Mahiaddin did not back down and stated that the Agong has consented to have a vote of no confidence in the next Dewan Rakyat meeting in September. But if our PM’s lack of support is proven during Dewan Rakyat or even earlier, we might end up with the same scenario back in February 2020, where the Agong interviewed all 221 MPs before selecting the new Prime Minister. Another repeating theme from that time: the use of statutory declarations by MPs to prove their support, or lack of support, for someone. But what are statutory declarations and are they really necessary? A statutory declaration is used as evidence… when there is no evidence The basic purpose for a statutory declaration (or SD) is to provide written proof to confirm something that either cannot be proven or involves too much work to actually prove. But SDs aren’t just regular written statements. The difference between this and a Facebook post is that it’s filed under oath (through a commissioner of oaths), and may be used in court. Examples incoming: Cannot be proven – You helped your brother flush the family goldfish down the toilet one night, and there are no witnesses. Because you feel bad, you make an SD that states the facts, who was involved, and that you were there. This can be used as evidence to ‘prove’ the crime that transpired that night, since there’s nothing else that does. Too much work – You’re buying a house under a scheme that gives a huge discount for first time housebuyers. Because the authorities cannot be background-checking every applicant’s assets, they ask you to sign an SD stating that you have never bought a house in your life. To ensure people don’t make false declarations, there’s an Act called the Statutory Declarations Act 1960. The Act goes on to provide penalties which are mentioned under Section 199 of the Penal Code: “Whoever, in any declaration made or subscribed by him...is bound or authorized by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false...touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.” In essence, the Act states that those who make a false SD will be charged for perjury (lying under oath) and can be jailed for up to 7 years. For a more in depth explanation, you can read about it here: [READ MORE: If you sign contradicting Statutory Declarations in Malaysia, will you get in trouble? ] So in this case, politicians are using SDs as written proof of who they currently support. But having an SD isn’t actually the most important thing, because all an MP has to do is actually...just declare it. They declare as clearly as they want to. It seems to be a trend now here that it’s done through statutory declaration. – Junian Yunus, former political secretary And the one who has to be informed of it is the Agong, because... The Agong has power to choose our PM Among the powers of the Agong is to appoint the Prime Minister formally. Article 40(2) of the Federal Constitution states this as: “The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say: (a) the appointment of a Prime Minister; (b) the withholding of consent to a request for the dissolution of Parliament;” Basically, this Article in the constitution states that the Agong can act in his discretion when appointing the next PM. The Comptroller (no, not a spelling error) of the Royal Household, further verified this for us: “What is being done by his Majesty is in accordance with the Federal Constitution which says that the Yang di-Pertuan Agong must appoint someone who enjoys the confidence of the majority,“ The Comptroller is basically referring to Article 43(2) of the Federal Constitution which says: (a) the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House...” This basically gives the Agong authority to choose the next PM but he can only do so if he reasonably believes the candidate has the confidence of the majority of the members in the Dewan Rakyat. So depending on how things turn out in the next few weeks, the Agong might need to do another round of interviews to find out who shall be the next Prime Minister. EXTRA NOTE: The Federal Consitution also says that if Mahiaddin chooses to dissolve Parliament, a general election must be held within 60 days from the date of the dissolution."
"A Msian stewardess was fired for being 'fat' AND the court agreed with the airline Disclaimer: The airline had never referred to the flight supervisor as being ‘fat’. She had merely exceeded the weight limit for cabin crew. We used the word ‘fat’ for a better illustration of the issue in the case. Whether or not you fly frequently, we all know that air stewards/ stewardesses are admired for having good looks. Apart from making passengers comfortable in a flight and assisting them in an emergency, the cabin crew are also expected to maintain a certain image whenever they’re in uniform. We wouldn’t, however, expect their looks to be taken so seriously to the point where it could get them…fired. But that’s exactly what happened to this flight attendant/ supervisor in Malaysia. She wasn’t fired for looking unpresentable or anything. But she ended up getting sacked because she was overweight...by 700 grams. The airline said it was their company policy So, the airline didn’t just think of some random reason to fire the flight supervisor. It was actually part of the company policy, specifically the grooming manual for cabin crew, that they were supposed to be at an ‘optimal weight’. This weight was measured using the Body Mass Index (BMI), where a person’s body fat is determined using their weight and height. The flight supervisor was 160cm tall, and so according to her BMI, for her height, she had to weigh nothing more than 61 kgs. They had weighed her several times, and at her final weigh-in in April 2017, her weight was at 61.7kgs, 700 grams heavier than the allowed weight. Shortly after that, her employment was terminated and the reason given was that she had not maintained her image per the company’s policy. Then in September of that year, she took the airline to court, saying that she had been unfairly terminated. She brought her claim using Section 20(1) of the Industrial Relations Act 1967 which states: Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment; So basically, because she felt she had been terminated without a proper or fair reason, she could file a complaint to the Director General of the Industrial Court. And from there, her case could be referred to be heard in the Industrial Court. This section of the law also states that if her case was successful, she could also get her job back. To most of us, it makes sense for her to take her case to court because…how often do we hear of people getting fired for being slightly overweight? The court said the airline was right You might have thought that the court would most likely decide the case in her favour. But, the court ended up siding with the airline, stating that the company policy should have been followed. But to further explain their decision, the court gave a few reasons as to why they decided the way they did: the company’s policy was not discriminatory because it applied to everyone, and not just to the flight supervisor alone the airline had given her “ample opportunities and chances” to get to the optimal weight, but she had failed to do so (basically, she had 18 months—from her first weigh-in since the policy was implemented, to the time she was dismissed—to shed the 700 grams) she has missed some of the previous scheduled weigh-ins she had been working with them for 25 years, and these weigh-ins had been done often over time. But she never complained about them, which looked like she had no problem with them The flight supervisor’s lawyers had argued earlier that an extra 700 grams could not affect someone’s performance at work. However, the judges said that the airline had already mentioned in a 2015 notice that their cabin crew’s appearance was a very important factor of their passengers’ flight experience. Again, the judge mentioned that since the flight supervisor did not have an issue with the weigh-ins all this while, it did not seem like this company policy could be seen to be unjust. So, the flight supervisor lost her case… and her job. But that wasn’t all. She also couldn’t get any other jobs Besides having lost her job with the airline, the flight supervisor also didn’t stand a very high chance in securing other job opportunities. According to several news reports, after the airline fired the flight supervisor, she was given the chance to attend an interview in another company for the role of a ground staff. But when the other company found out that she was terminated and was not considered to be ‘fit’ to lead a cabin crew, she was also denied this new role. Many who have read this news have been quick to speak up in support of her, and some of them are major organizations. There’s an association just for flight attendants, and they’re known as The National Union of Flight Attendants Malaysia (NUFAM). Speaking of the airline’s decision to fire her, NUFAM said that it was “inhumane”. They also added that “justice and basic human rights have died once more”. On top of that, the Women’s Aid Organization has also said that it was “disappointed” that the flight supervisor had been fired for this reason. As this case was just reported 5 days ago (at the time of writing), we don’t know yet if this flight supervisor is planning to take further action regarding the airline’s decision. Under Section 33B of the Industrial Relations Act 1967, the Industrial Court’s decision is final (as opposed to other courts). But there are some instances where a you can appeal to the High Court to take another look at the decision. This of course depends on the facts of each case and whether the flight supervisor can appeal this decision (known as a judicial review) will be up to the High Court itself."
"Abortions have always been legal in Malaysia BUT only for 2 reasons *Note: This article was updated on 28 June 2022. Just recently, the United States has overturned a law – Roe v Wade – which meant that abortions aren’t a protected right anymore there. The news has spread worldwide which might make some of us wonder: Do women have the right to abortion in Malaysia? As it turns out, even some of our medical practitioners aren’t sure what the answer is. Two years ago, a Malaysian girl’s artwork on legal abortion was making its rounds on social media. Here’s what it looks like if you’ve not come across it on your timeline: Now, this image became a topic of discussion on whether abortions are actually legal or not in Malaysia. A survey conducted by the Reproductive Rights Advocacy Alliance Malaysia (RRAAM), where 120 medical practitioners were polled, found that only 47% of these practitioners knew about the legalities of abortions. This evidently shows that not all Malaysians are aware of how our laws work in regard to abortions. So we decided to look at our laws on whether Malaysian women are allowed to have safe, legal abortions or not. Abortions are legal BUT with conditions The general rule for having an abortion is—it’s illegal for women, or anyone to do so. Section 312 of the Penal Code states as such: “Whoever voluntarily causes a woman with child to miscarry shall be punished with imprisonment for a term which may extend to three years or with fine or with both; and if the woman is quick with child, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine.” This Section basically states that anyone who tries to harm the (unborn) child by causing the mother to miscarry, is committing a crime. The offence carries a jail sentence up to 7 years, a fine or both. If the abortion was done before the woman’s 4th month of pregnancy then the jail term is up to 3 years—anything beyond the 4th month (meaning quick with child) the imprisonment is up to 7 years. Now, here’s where the exception in the law comes to light. If you look at the illustration we showed you right in the beginning, you’d notice a fine print there—which says abortions are legal under 2 conditions. Section 312 of the Penal Code has an explanation on when the law will work to sentence someone with the offence. The exception in this Section is explained as such: “This section does not extend to a medical practitioner registered under the Medical Act 1971 [Act 50] who terminates the pregnancy of a woman if such medical practitioner is of the opinion, formed in good faith, that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or injury to the mental or physical health of the pregnant woman, greater than if the pregnancy were terminated..” Might seem a lot to understand, but what it says is that under Section 312, there are two conditions that are considered exceptions for abortions. These are: Condition 1: If the abortion is done to save the pregnant woman’s life. If the abortion is done by a doctor who genuinely thinks the pregnant woman’s life is at risk due to her pregnancy, he can terminate the pregnancy. Section 88 of the Penal Code defines good faith (when the doctor can do this): “Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.” The Act basically states that if a woman gives consent to undergo the abortion, and the Doctor only does this in good faith—to ensure the woman does not lose her life—then the abortion can be carried out. Here’s another important thing to take note of: Abortions can only be carried out by medical practitioners aka doctors with a license. Anyone who calls themselves “doctor” must be qualified and duly registered under the Medical Act 1971 with qualifications recognized by the Malaysian Medical Council. [READ MORE: Do you need a medical license to call yourself a “doctor” in Malaysia?] Condition 2: The abortion is done to protect the mental and physical state of the woman If the Doctor believes that the pregnancy may harm the pregnant woman’s physical or mental state, the abortion can be carried out legally. The second part of the exception in Section 312 states this: “This section does not extend to a medical practitioner registered under the Medical Act 1971 [Act 50] who terminates the pregnancy of a woman if such medical practitioner is of the opinion, formed in good faith...injury to the mental or physical health of the pregnant woman, greater than if the pregnancy were terminated.” In the event the pregnant woman is undergoing physical or mental trauma, which can potentially cause her death—the doctor can abort the pregnancy. For instance, if the pregnant woman is a rape victim—and the doctor reasonably believes that the victim wants to undergo the abortion procedure due to mental health issues—the abortion is legal. So if these exceptions can be satisfied, the abortion is not illegal in nature. Help is available if you need it As much as help is available for Malaysians, remember the general rule: Abortion is illegal under Malaysian laws. Abortions are only allowed under the exceptions mentioned above in the Penal Code. There are organizations that advocate and aid Malaysian women in the area of reproductive health. One such organization is RRAAM. The RRRAM was formed by twelve organisations and individuals—some of them include the Women´s Aid Organisation (WAO), the Joint Action Group for Gender Equality (JAG), the Asia Safe Abortion Partnership (ASAP). RRAAM is available to answer queries and help out if you contact them at their hotline: +6 012-4772551. You can also check out their website for more information on safe abortions in Malaysia."
"In Malaysia, you can be fired AND jailed for submitting fake MCs. Here's how It’s finally Friday! But you’ve literally no motivation to get out of bed today. You think about the amount of paperwork you have to settle at work—which makes it worse for you to get ready in the morning. You finally make a decision to skip work and just enjoy yourself...by going to a theme park! All you need now is an MC from the nearest clinic and your plan becomes foolproof! You head to the office on Monday to submit your MC to your boss—but you see him react completely cold towards you. You hand him your MC, while he hands you a letter of termination at the same time. Your boss goes on to tell you that you’re fired for submitting a fake MC...as he saw you live-streaming yourself at the theme park on Friday. He adds on that there will be legal action taken against you for falsely handing in a MC. [READ MORE: Are Malaysian employers allowed to fire you for social media posts?] You wish you didn’t live-stream your holiday now, but it’s a tad bit too late. The question you might have now is: Can you be fired AND jailed for taking a fake MC(s) in Malaysia? Your company CAN fire you for misconduct We previously wrote an article on whether employees can take as many MCs as they want, or not (read here). You’re technically entitled to sick leaves, as it is the right of an employee to take leave when they’re unwell. Section 60F of the Employment Act 1955 states as such: “(1) An employee shall, after examination at the expense of the employer...be entitled to paid sick leave...where no hospitalization is necessary.” Every employee is entitled to a minimum of 14 days of sick leave per year (If you’ve worked less than 2 years). The total number of sick leaves you can take would increase over the years you work. The Act further states that you need to get an MC from the doctor in order to apply for sick leave. However, if you take MC without actually being sick—and your company comes to know about it, they can fire you for misconduct. Section 14 of the Employment Act 1955 states as such: Section 14 of the Employment Act (in part)“ An employer may, on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of his service, after due inquiry— (a) dismiss without notice the employee; (b) downgrade the employee; or (c) impose any other lesser punishment as he deems just and fit, and where a punishment of suspension without wages is imposed, it shall not exceed a period of two weeks.” Dismissal for misconduct requires no notice period under the Act. This means that your company can fire you if you commit a misconduct. But this can also depend on how severe the misconduct is. Misconduct is considered anything that goes against the terms of your employment: Your responsibilities towards your company. For the misconduct to be “severe”, the law says that it must be so serious that after investigation—the employer finds that your actions have damaged the relationship of good faith between you and the company. So the whole act of faking your MC can be said to have harmed your relationship with your company—which gives them the authority to fire you. Now losing your job isn’t your only worry if you forge MCs because… You can ALSO be fined and jailed for faking MCs In Nadimuthu V Public Prosecutor [1972], the employee, a railway worker from Sentul had falsely taken two MCs and was fined for under the Prevention of Corruption Act 1961 (now known as the Malaysian Anti-Corruption Commission Act 2009). The offence now falls under Section 18 of the MACC Act 2009, which states as such: “A person commits an offence...with intent to deceive his principal, any receipt, account or other document in respect of which the principal is interested, and which he has reason to believe contains any statement which is false or erroneous...and is intended to mislead the principal.” Basically, the Act says that anyone who misleads his “principal” (employer in this case) with false documents, is making an offence under the Act. The judge in the case further went on to say that MCs fall into the category of other documents: To my mind, such certificates must be construed as having come in the category of receipt, account, etc., and for purposes of section 4(c) of the Prevention of Corruption Act, 1961, the words ""other document"" shall include such medical certificates.--Justice Abdul Hamid. The employer, Nadimuthu was fined for the two fake MCs taken by him. Section 24(2) of the MACC Act goes on state that: “Any person who commits an offence under section 18 shall on conviction be liable to— (a) imprisonment for a term not exceeding twenty years; and (b) a fine of not less than five times the sum or value of the false or erroneous or defective material particular, where such false or erroneous or defective material particular is capable of being valued, or of a pecuniary nature, or ten thousand ringgit, whichever is the higher.” So apart from getting fired and being fined for the days you took the MCs, you can face a jail term up to 20 years and pay a fine based on the value of the offence. Perhaps it’s best to take MCs, ONLY when you’re at your worst state. 🤒 [READ MORE: Can you get fired for taking emergency leave in Malaysia?] [READ MORE: 5 types of leave in Malaysia (and if you will be paid when you take them)]"
"Can you get your money back if your uncompleted condo collapses in Msia? If you read the news on 14th February 2020, you might know about a condo that collapsed in Taman Desa. Portions of the condo, which was still being built, collapsed during the rain. Luckily, despite the damage, there were no casualties. But if you were one of those people who had bought a unit in that condo, you might think of these two things: whether you could opt out of the housing contract, and whether you would get the money you had paid for the condo back However, just because your condo collapsed, it doesn’t mean you have to forgo your new home altogether. In most cases of a collapsed condo, the project will go on and the condo will be reconstructed. But naturally, you might not want to live there for the fear of it being unsafe and you might want to ditch the whole idea of moving into the condo. So, can you end your housing contract and get all your money back? Or would you be without a new house and several hundred thousands ringgit poorer? You may walk away... if your developer agrees Before we continue, let’s clarify this: your housing contract, known as a Sales & Purchase Agreement (S&P), CAN be terminated. But it isn’t an easy process as it can only be done in certain situations. S&Ps are normally terminated when the entire project has been abandoned or the condo has been built so badly, that there’s no way anyone can live there, among other reasons. So, as you can see, these are some pretty serious situations, and even then, you’ll have to prove them if you want out of the agreement. But does your condo collapsing qualify as one of the reasons you can do away with your S&P? Speaking of the Taman Desa condo incident, a property lawyer, Salkukhairi Abd Sukor commented: ""...standard sales and purchase agreements did not provide for an automatic cancellation if a building under construction suffers a collapse."" But, he also went on to say: ""...if the developer of the Taman Desa project agrees to allow any buyer to cancel, both parties must enter into a termination and settlement agreement."" So, what he said is basically this: You can’t automatically cancel your contract if your condo collapses. However, you CAN get out of contract if your developer also agrees to it. But for that to happen, you and your developer will have to enter a termination and settlement agreement. Basically, it means that you both agree to end the housing contract and when that happens, all legal ties between you and them will be cut. Of course, just agreeing isn’t all, because there are still other conditions that will have to be met before you make your exit. There might be some penalty fee or time frame by which you could terminate the contract. But, this is different for each contract, and you’ll be able to find these conditions in your S&P itself. Now, let’s say that your developer does allow you to terminate the S&P. Does this now mean that the condo is off your hands and you can get back every single cent you paid? Well…no. Bad news: You’ll still have to pay your bank loan Wait, what?! Having to pay a loan for something you’ve washed your hands of certainly sounds ludicrous. It’s even worse when you have to pay hundreds and thousands of ringgit, which you’ll most likely pay in smaller sums for the rest of your life. But here’s the thing: The S&P that you signed was an agreement between you and the developer ONLY. So, when you ended that agreement, you severed ties with the developer alone, and not the bank. The role of your bank in this whole picture is just that of a financier. So, because they didn’t sign the S&P and only agreed to give you a loan, you will have to pay them what is owed to them. We spoke to a lawyer who further explained this to us, and he basically said this: Even if you terminate the S&P, you can’t get back the money you paid, and you’ll still need to continue paying the loan. So, you don’t have that new condo unit anymore, but you still need to work overtime to pay off that housing loan every month. Sounds like a nightmare, right? Well thankfully, the law does offer you some other options for relief. Good news: You can be compensated in other ways Remember how we said that the only parties to your S&P are you and your developer? So, you can’t get help from the bank but could actually get your dues from the developer itself! Your S&P works just like any other contract. If you’re not too sure of how contracts work, here’s a quick lesson. When you sign a contract with someone, you and that person have a legal duty to fulfill your responsibilities stated in that contract. So, in the case of your housing contract, you would have agreed, for example, to pay for the house. And your developer, on the other hand, would have agreed to complete the house as promised. This means that if your developer doesn’t build the house in a suitable condition or it was never built at all, they would be breaching (breaking) the contract or housing agreement. Because of this, you can sue them for not giving you what was promised. An important thing to note is, even if you have terminated the S&P and cut all legal ties with the developer, you still CAN sue them. You are allowed to cancel the S&P on the grounds that your developer breached the contract, and then sue them for exactly that reason. But you can’t just sue someone for ‘breaching a contract’ – you’ll have to sue them for something more specific. There is a long list of what you can sue someone for (and you should consult your lawyer to know exactly what action you can take against them), but here are some: Negligence If your condo collapses and it was very likely due to the developer’s carelessness, you’ll be able to hold them responsible. In order to sue someone for negligence, you’ll need to prove all of the following: the developer had a duty under the law to provide you with a safe and secure home, suitable for living (this can be proven by your housing agreement) the developer had failed to perform this duty due to their own fault (careless in choosing a contractor, materials etc.) the developer’s carelessness was the reason the condo had collapsed in the first place you had suffered some loss or harm due to the developer’s carelessness If your claim for negligence is successful, the court will give you monetary compensation, which is known as damages. But it’s important to note that you may not get 100% of your money back, as the sum of damages given to you will be decided by the court. Anticipatory breach An anticipatory breach is when someone’s actions show that they are not interested in fulfilling their part of the contract. One instance where you can sue your developer for this is if the construction of your condo is permanently stopped. For example, in the Taman Desa condo case, the developers have been issued a stop work order, meaning that no construction work can be done for the time being. So, we don’t know when reconstruction work will resume. But in the event that the project is halted forever, you will be able to sue the developers for an anticipatory breach. You’ll need to prove that the developer did something which proves that they do not wish to continue with the construction of the condo. If the project is scrapped, there is no way you will be getting your condo unit and so, the developer will not be able to give you your home as promised. If your claim is successful, you will receive damages for this as well. And just like for a negligence claim, the sum of damages you will receive is not fixed and is also decided by the court. No progress of work for 6 months or more There are cases where the developer actually abandons the project altogether. Meaning, there is no stop work order from the authorities but they don’t plan on continuing the project. Ever. If your condo has collapsed but there have been no reconstruction works done for 6 continuous months, you can sue the developer and get ALL the money that you’ve paid for back AND you can get out of paying the bank loan. Wait, didn’t we say that what’s paid is paid and you can never get it back? Well, the only exception to that is when the project is abandoned. Under Section 8A of the Housing Development (Control and Licencing) Act 1966, you can be free from your housing contract and you’ll be paid back all the money you spent on a house you’ll never get. You’ll have to meet these two conditions, though: the bank will have to allow you to stop paying the loan the Housing Controller (the body that governs all matters to do with housing) will have to certify that the developer has not done any work on the project for 6 months or more It’s important to note that you can sue your developer for more than one type of damage, depending on whether or not you can live in the condo after its collapse. Make sure to consult with your lawyer on the best way to claim for your compensation, so that even if you don’t get back all the money that you spent on the condo, you’ll at least be able to pay some part of the bank loan. [READ MORE: What can you do if your Malaysian developer abandons your property?]"
"Akta berita palsu dah dimansuhkan tahun 2019. Tapi kenapa masih ada yang ditangkap? [Click here for English version] Masa artikel ni ditulis, dah ada 22 kes koronavirus atau nama rasminya, COVID-19 disahkan di Malaysia. Tapi dalam masa sama, sementara ramai yang berjaga-jaga dan peka dengan berita semasa, banyak pula berita palsu yang disebarkan. Boleh dikatakan yang penularan berita palsu ni, terutamanya di media sosial lebih cepat berbanding dengan virus tu sendiri. Dan rasanya, korang semua dah baca atau dengar pasal penahanan beberapa orang individu kerana didakwa menyebarkan berita palsu. Lebih mengejutkan lagi, antara yang ditahan tu termasuklah seorang wartawan yang pernah menang anugerah. Pihak Suruhanjaya Komunikasi dan Multimedia Malaysia (SKMM) juga dah keluarkan kenyataan tentang penangkapan beberapa individu ni dan jelaskan tentang kesalahan mencipta atau menyebarkan berita palsu. Tapi apa yang menimbulkan persoalan sekarang adalah, bukan ke kerajaan sebelum ni dah mansuhkan Akta Anti-Berita Tidak Benar pada tahun lepas (2019)? Kalau akta ni dah dimansuhkan, macam mana pula masih ada yang ditangkap sebab sebarkan berita palsu pasal koronavirus? Masih ada undang-undang lain yang boleh digunakan Secara dasarnya, Akta Anti-Berita Tidak Benar ni adalah akta yang bertindak sebagai langkah pencegahan, untuk menghalang orang daripada menyebarkan maklumat yang salah kepada satu sama lain. Tapi definisi berita palsu boleh jadi luas sangat. Di bawah akta, berita palsu ditakrifkan sebagai apa-apa maklumat yang mempunyai potensi untuk diterima (dibaca, didengar atau dilihat) oleh masyarakat awam. Dengan kata lain, secara literalnya – apa sahaja boleh dianggap sebagai sebagai berita palsu jika ia diterbitkan atau dipaparkan kepada awam. Bagaimanapun, Akta ni kemudiannya dianggap sebagai tak adil, sampai akhirnya ia dimansuhkan pada tahun lalu. Walaupun begitu, selepas akta ni dimansuhkan – kita sebenarnya masih ada undang-undang yang boleh mencegah penularan berita palsu. Kalau kita merujuk penahanan seorang lelaki di Bangi baru-baru ni. Dia dah didakwa di bawah dua undang-undang berbeza kerana menerbitkan maklumat yang salah tentang koronavirus. Antara peruntukan yang digunakan adalah: 1. Seksyen 505(b), Kanun Keseksaaan “Barang siapa membuat, menerbitkan atau mengedarkan apa-apa kenyataan, khabar angin atau berita… Dengan niat hendak menyebabkan, atau yang mungkin menyebabkan, ketakutan atau kegentaran kepada awam, atau kepada mana-mana golongan awam supaya oleh yang demikian itu seseorang mungkin terdorong melakukan sesuatu kesalahan terhadap Negara atau terhadap ketenteraman...” Akta ni pada dasarnya untuk mencegah sesiapa pun dari menyebarkan maklumat tak sahih yang boleh menimbulkan kebimbangan di kalangan masyarakat. Sesiapa yang disabitkan dengan jenayah ni, boleh dipenjara sehingga 2 tahun, didenda atau kedua-duanya sekali. Bagaimanapun, ada pengecualian dalam Kanun Keseksaan ni: Kalau korang betul-betul percaya dengan kenyataan yang diterbitkan atau apa yang disebarkan tu sebagai benar, dan korang tak ada niat nak sebarkan berita palsu – korang boleh gunakan hujah ni untuk elak disabitkan kesalahan. 2. Seksyen 233, Akta Komunikasi dan Multimedia 1998 (1) Seseorang yang— (a) dengan menggunakan mana-mana kemudahan rangkaian atau perkhidmatan rangkaian atau perkhidmatan aplikasi secara sedar – (ii) memulakan penghantaran, apa-apa komen, permintaan, cadangan atau komunikasi lain yang lucah, sumbang, palsu, mengancam atau jelik sifatnya dengan niat untuk menyakitkan hati, menganiayai, mengugut atau mengganggu orang lain… Berbanding dengan peruntukan sebelumnya, Akta Komunikasi dan Multimedia 1998 lebih cenderung dalam hal berkaitan komunikasi, terutamanya menyasarkan penyebaran berita palsu melalui rangkaian internet/peranti elektronik. Sub-seksyen (3) dalam seksyen ni membawa kepada denda tak lebih RM50,000 atau penjara tak lebih 1 tahun atau kedua-duanya. Kalau orang yang sama ditangkap sekali lagi menyebarkan berita tak sahih, dia boleh didenda RM1,000.00 bagi setiap hari kesalahan itu diteruskan selepas pensabitan. Jadinya di sini, walaupun Akta Anti Berita Tidak Benar dah tak ada, masih ada undang-undang lain yang boleh digunakan untuk mendakwa penyebar berita palsu. Undang-undang ni akan digunakan oleh pihak berkuasa untuk mencegah orang ramai dari buat berita palsu yang seterusnya menimbulkan kebimbangan di kalangan masyarakat. Tapi, muncul juga persoalan… Macam mana nak tahu berita tu palsu atau tak? Masalah berita palsu ni bukan jadi di Malaysia je, tapi boleh dikatakan di seluruh dunia sekarang ni. Dengan adanya berita palsu ni, ia boleh menimbulkan rasa takut, salah faham, ataupun sampai mengganggu keamanan negara. Jadinya, mungkin cara terbaik untuk mengelakkan berita palsu (atau dapat masalah dengan undang-undang) adalah persiapkan diri korang sendiri. Kami ada temu bual Pengarah Eksekutif Forum Kandungan Komunikasi dan Multimedia Malaysia (CMCF), Mustaffa Fazil dalam satu artikel kami sebelum ni, yang gariskan dua langkah mudah yang sesiapa pun boleh buat: Cuba berfikiran waras dan luangkan masa untuk mempertimbangkan niat korang dan kemungkinan akibatnya Semak fakta melalui Google atau laman seperti Sebenarnya.my Dan dalam isu virus ni, sumber maklumat paling tepat mestilah dari Kementerian Kesihatan. Jadinya, korang boleh la semak maklumat di laman rasmi mereka atau melalui Pertubuhan Kesihatan Sedunia (WHO) untuk tahu kesahihan khabar angin yang sampai. Maka kesimpulannya, walaupun Akta Anti Berita Tidak Benar dah tak ada, kita sebenarnya ada undang-undang yang masih digunapakai untuk mencegah menularan berita palsu. Ini jadi ingatan kepada kita semua – sebelum Post atau Share sesuatu tu, fikirkanlah dulu kesahihan dan akibatnya. [BACA LAGI: Is there freedom of speech in Malaysia if you can get arrested for Facebook posts?]"
"Can a person's opinion be used as evidence in Malaysian courts? When we hear about someone being summoned to testify in court as a witness, our initial thought would be that a person is asked to come to court to testify what happened based on the case. So here’s the thing: That’s actually the general rule in Malaysia—where a witness is only allowed to testify facts and not give his opinion. Now the difference between a fact and an opinion is that a fact is a thing known or proved to be true whereas an opinion is a person’s personal judgment or belief on something. Perhaps this is best explained with a case that became a compulsive discussion among Malaysians. In the Muhammad Adib inquest—in which the fireman Muhammad Adib, had died while responding to an emergency call at a temple where a riot had broken out. The court accepted the theory put forward by the expert forensic pathologist on how Muhammad Adib sustained his injuries which eventually led to his death—as his theory was also supported by other evidence. This theory that was put forward by forensic pathologist is called an expert’s opinion. So in certain cases, a person’s opinion is necessary for a case. For instance, in cases where the victim has died and the cause of death comes into question, the courts would want to hear the opinion of medical or forensic experts as to what the cause of death actually is. So the question now is, how do courts accept opinions of people as evidence...without tainting the case? An opinion can be used as evidence...sometimes 1. Situations when it’s allowed Since the general rule is that opinion evidence is not accepted into court, the law has allowed special circumstances for when it can be applied. This is because there are certain areas which are out of the judge’s expertise where the nature of the evidence requires more in depth and technical knowledge. Section 45 of the Evidence Act 1950 specifically mentions the areas where an expert’s opinion would be allowed as evidence in court. These areas include: Foreign law Science or arts Identifying the genuineness of a person’s handwriting or Identifying fingerprints So cases that require medical opinion aren’t the only one that allows expert opinion. Cases where the court needs to identify someone’s handwriting or fingerprints would also allow an expert’s opinion be used as evidence. In the recent case involving the former prime minister, Najib Razak’s SRC corruption trial where he had recently requested for an Australian handwriting expert to verify his signatures on certain documents since Najib was disputing the authenticity of those signatures that was allegedly his on the documents. 2. Situations when it’s not allowed Here’s something to take note of: An expert’s opinion is only limited in cases which require special skills of the expert. In the Singaporean case of Ong Chan Tow v R (1963), a bus driver collided into a car while emerging from a minor side-road without stopping at the “Stop” sign which killed the driver. However, the bus driver stated that he had in fact stopped at the “Stop” sign and thought it was safe to proceed. To prove this, he called in a Motor Engineer and Insurance Assessor as his expert to give his opinion on how the accident happened. However, the court rejected the expert’s opinion as the evidence that was put forward was simple and straight forward for the court to decide themselves. This shows that only if the opinion of an expert is absolutely needed, then the judge will allow the opinion as evidence. The judge further found the bus driver liable due to the high amount of negligence shown during the accident. Now this isn’t the only factor to take into account...as it also depends on the person’s credibility. You have to be “legit” to give your opinion When an expert is called to court to give his or her opinion, there are certain requirements that needs to be met in order for his opinion to be taken seriously by the judge. Basically, the expert needs to be “legit”. But this doesn’t necessarily mean that he must be academically qualified. In the murder case of PP v Muhamed bin Sulaiman (1982), the only evidence connecting the accused with the killing was the evidence of a chemist that the bullet recovered from the body of the deceased was fired from the accused’s rifle. The court accepted the chemist’s opinion because although he had no academic training, he may have practical experience gained in the Department of Chemistry. The court went on to say: This is because while the expert must be ""skilled"", he need not be so by special study, he may be so by experience; and the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibility. So even if the expert is not qualified professionally, if he has sufficient experience in that particular field—he would be allowed to give his opinion in court. Though, while his opinion would still be accepted by the courts, the judge may trust it less as compared to someone who’s professionally qualified and trained in the field. Now here’s another interesting expert that may give opinions at courts: Gazetted experts are basically people whose appointment of their roles have been officially published publicly. An example is a digital forensic analysts being recognized as experts by the Malaysian courts under the Criminal Procedure Code. Non-experts are also allowed to give their opinion on certain areas specified under the Evidence Act 1950. Non-experts are people that do not have to be regarded as professional experts by the court in these areas. These areas are stated under: Section 47 – to identify the legitimacy of handwriting provided that the witness is acquainted with the person’s handwriting that is in issue. Section 48 – to give an opinion on the existence of any general right or custom. For example, the right of villagers in a village to use water from a particular well is considered a general right. So different areas or districts would have different rights or customs where only the people living there would know. Section 49 – to give an opinion on usages and tenets (a religious or philosophical principle or belief) etc Section 50 – to give an opinion on a particular relationship between people. But whatever it is, a person may only give his opinion as evidence on matters that are considered his expertise. For instance, a doctor won’t be allowed to give his opinion on the price of a stolen art exhibit. But being an expert isn’t enough for the judge to accept your opinion, because... It’s HOW they came up with that opinion that matters Whenever someone gives their opinion as evidence in court, it can’t be whipped up out of nowhere. Under Section 51 of the Evidence Act 1950, it’s stated that: Whenever the opinion of any living person is relevant, the grounds on which his opinion is based is also relevant. So being legit is not enough—the court would also look into how the particular witness formed his or her opinion and on what basis. As we mentioned earlier, the court doesn’t require an opinion if the court can decipher the issue by themselves. In Sim Ah Song v R (1951), the accused were arrested for assisting in carrying on a public lottery. The prosecution then called a police officer from the Gambling Suppression Branch as an expert witness who also had 3 years of experience as an assistant to a lottery ticket promoter. The police officer gave a detailed account of how the lottery system works and the court accepted this further stating that: ..a bare expression of his opinion has no evidential value at all. Unless he gives an explanation which supplies the understanding of the subject which the Court lacks, the Court is in no better position than it was before.. In this case the witness, after stating his qualifications to be regarded as an expert, explained how a Chap Ji Ki lottery is operated. And in the case of the staking slips (Exhibit P. 3) he explained (also in cross-examination), though not very clearly, what the writing on them meant. Thus his evidence was more than a bare expression of his opinion... This would mean that if a person is called to court to give his opinion on an issue, the court would want a detailed opinion and also one that is based on the knowledge he has gained in that area over the years. It could also be based on things like referring to any relevant research or experiments. The same was also felt by the court in Pacific Tins Consolidated v Hoon Wee Thim (1967), the defendants had two large ponds situated on an inclined valley for the purposes of dredge mining operations. There was a large breach between the two ponds which caused a violent outflow of water from the higher pond and caused significant damage to life and property in the low lying lands adjacent to the ponds. The defendants had called experts to court to determine what caused the breach in the ponds and whether they had done all they could to prevent it. In examining the expert’s opinion, the court had stated that: ...in all cases in which opinion evidence is receivable, whether from experts or not, the grounds or reasoning upon which such opinion is based may properly be inquired into. Where the opinion of experts is based on reports of facts, those facts, unless within the experts' own knowledge must be proved independently. This just shows how much the basis of the opinion is taken into account by the courts to ensure it isn’t based on any fictional sources. So if a doctor is giving his opinion on a certain disease in court, he can’t say that he formed his opinion because The Simpsons show predicted it. So while a person’s opinion is generally not admissible in court, the exceptions discussed above enables judges to have an understanding of an issue that is out of his or her expertise and would allow for the decision on the case to be made in a more fair and just manner."
"What happens to your case if a law firm shuts down in Malaysia? Imagine this: You’re involved in a lawsuit with your company. You hire a lawyer from a reputable law firm, and the lawyer representing your case is a pretty well-known person in the industry. The dispute goes on, and your lawyer seems to be doing a great job...until one day, you get an email from him stating that the law firm is no longer around—as the partners have split up. As a client whose case is still ongoing, you’re worried sick about what’s going to happen to your case—and the money you’ve already paid to the law firm. So in this article, we’ll be saving you from heartbreak and an empty pocket...and a bad lawsuit, in the event a law firm splits in Malaysia. The question now is, what happens to your case if the partners of the law firm decide to call it quits? But first, let’s briefly look into how law firms are formed. Some lawyers work alone, while others don’t If you’ve ever walked past a law firm signage, you would notice names like “Ali, Ah Chong, Muthu & Co”. These law firms may have more than one named partner, who has a certain amount of ownership in the firm. But there are also some law firms that are owned by just one, sole person who owns the entire law firm alone. Now if one lawyer runs his firm alone, he handles all of the cases by himself, and carries all of the firms profits and losses. But things are slightly different if more than one lawyer has interest over the law firm. This is known as a partnership. Section 3(1) of the Partnership Act 1961 defines a partnership as “the relation which subsists between persons carrying on business in common with a view of profit.” [READ MORE: Which Malaysian business type should you choose for your company?] In a partnership, as the name implies, the partners will share everything. But how each partnerships divide the case workload as well as the profits (or losses) differ based on their partnership agreement. But if the lawyers choose not to draft their own partnership agreement, the partnership would still be governed by the Partnership Act. So in the event the partners of the firm decide to split, what happens to their client’s case if they do so? [READ MORE: How to get legal aid in Malaysia] Lawyers cannot take their cases with them (sometimes) The reason behind the dissolution of a law firm can stem from a lot of things. Section 34-37 of the Partnership Act 1961, listed down some of the reasons why partnerships (including law firms) might dissolve—and this can include court orders, bankruptcy of the partners and death. These are normally unavoidable circumstances. Another situation is where any partner elects to dissolve the partnership by choice. Section 34(1) of the Act states: “(1) Subject to any agreement between the partners, a partnership is dissolved-- (a) if entered into for a fixed term, by the expiration of that term;… (c) if entered into for an undefined time, by any partner giving notice to the other or others of his intention to dissolve the partnership.” Assuming the Partnership agreement is silent on this, any partner may decide to dissolve the law firm at anytime. Section 39 goes on to state that the dissolution of a partner may be publicly notified by any partner. So what happens to your case then? In the event the partners of the firm decide to split up, the client may decide whether they still want the lawyer to take up the case (in the lawyer’s new firm) or they can opt to choose another lawyer. However, if the partnership agreement doesn’t allow for partners to take their cases with them, the partners cannot do so. We spoke to Dinesh Sadhwani, a practicing lawyer who explained this to us: “That would largely depend on what does the partnership agreement provide. If you see section 28 of the Contracts Act, it allows the partners to enter into certain restrain of trade undertakings (see in particular exception 2 under section 28). Assuming such restraints were agreed and provided for in the partnership agreement and depending on the scope of the restraints, this may prevent or limit (subject to certain reasonable limitations) the partners who are bound by those undertakings from carrying on practice post dissolution. The undertakings may include, amongst others, a restraint on soliciting (acting for) clients of the dissolved firm.” Basically, if the agreement made between the partners doesn’t allow them to represent a client after the firm has been dissolved, the partner may not be able to take up your case. Now to save you from a panic attack, read on. The Bar Council can step in! The Malaysian Bar has the power to take possession of the documents from the lawyers. Section 89 of the Legal Profession Act 1976 states as such: “Where— (a) a complaint is made to the Bar Council that there has been undue delay on the part of an advocate and solicitor in connection with any matter in which he or his firm has been instructed on behalf of a client or any matter which relates to the administration of a trust of which that advocate and solicitor is the sole trustee or co-trustee with one or more of his partners, clerks or servants;” Based on the Act, if someone makes a complaint on delays from the lawyer, the Bar Council will have the power to take over the lawyer’s documents. The Bar Council must make a notice in writing, asking the lawyer to give an explanation for the delays made. The lawyer in return, must explain himself within 21 days—and the Bar Council will decide if the reasoning is satisfactory. In the event the lawyer fails to give a satisfactory reason and the firm has dissolved, the case documents will be taken by the Bar Council. Alex Netto from Anton & Chen explained how this whole process works in the event the law firm dissolves: “The Bar Council act as custodians of the files. Sometimes, the volume of cases from a law firm can be heavy. In circumstances as such, the Bar Council will put up a notice to see if other lawyers want to take over the case. The (new) lawyer will then write to inform the client that he wants to take custody of the case files, and the client must reply if he consents or objects.” – Alex Netto as paraphrased by AskLegal. So the Bar Council will step in to resolve these problems in the event a law firm dissolves. The cases will be assigned to lawyers who want to take over, with consent from the client. Basically, there’s not much to worry about...unless your case exceeds the limitation period of 6 years. In civil cases, if you exceed the “expiration date” to bring a case, courts are generally reluctant to hear it. [READ MORE: Is there a time limit for you to sue someone in Malaysia?]"
"Can Malaysian companies cut your pay without giving you notice? It’s pay day, and you’re glad because you finally don’t have to be broke… for another few weeks at least. You have a whole lot of bills to pay but you’re also thinking of getting that Michael Kors bag you’ve been eyeing for months. You log in to your bank account to check your balance, and you realise that your salary for this month is a few hundred ringgits less than usual. You know that you didn’t take any days of unpaid leave this month, so maybe it could be an error made by the Finance department, right? You call them up but they tell you that no error was made. That IS your salary for this month. You’re confused, and your last resort now is to speak to your boss himself. You go over to his cubicle and he also tells you, that your salary was indeed deducted and so that’s all you’ll be receiving for the month. He tells you that your performance at work hasn’t been as good as it used to be, and for that reason, they cut your pay. It’s bad enough that you’re a few hundred poorer. But what’s worse is that you weren’t even informed of this earlier. Plus, you’ve just completed 3 new projects, so you don’t understand how you’ve been performing badly at work. Now the question is, can your boss actually cut your pay without telling you? Pay cuts themselves aren’t illegal Naturally, if you were doing the same amount of work each month, you would be expecting the same pay throughout. Unless of course, you got a promotion. Before you started working for your company, you would have signed an employment contract with them. One of the things you would have agreed on is your pay. Because of that contract, your boss will then have a legal duty to pay you that sum every month. If your boss cuts your pay for no reason, this means that they would not be keeping up to their part of the contract, and you would be able to sue them for this. But, your contract will also tell you that your employer can make “lawful deductions” from your salary. This means that your employer has the right to make certain cuts where necessary for monthly contributions like EPF & SOCSO, and a long list of other things that you can find in Section 24 of the Employment Act 1955. So, to get this straight, your pay CAN be cut sometimes. But this can only happen if these deductions must be the ones allowed by the law AND you are aware of these deductions But what if when you check your pay slip, you see that almost 40% of your pay has been slashed? Your boss doesn’t always need to give you notice There are some rare instances where the court has given an employer the green light to cut an employee’s pay without notice. Once such case is Norhayati Hussein v JW Marriott Hotel Kuala Lumpur [2017], where the employee had been on medical leave for 19 months. When she returned to work, she found that the company had assigned her to a lower position with a lower salary. Her pay had been cut by a staggering 50%. She filed a case in the Industrial Court for constructive dismissal, which is when company changes an employee’s scope of work, so as to force them to resign. The court, however, didn’t allow for the claim. The reasons given were that the employer had allowed the employee herself to decide when she wanted to come back to the company. As the employer had no idea when she was going to return and did not dismiss her the whole time, the employer was not unfair to her. Instead, they had done their best to give her another role that would fit in the company. Temporary cuts are allowed too Sometimes, a company may not be doing very well financially. So, to cut their losses, a company may deduct the employees’ salaries instead. This scenario actually takes place more often than we know, and one such case happened in 2001. In North Malaysia Distributors Sdn Bhd v Ang Cheng Poh [2001], the employers cut the employee’s pay on the premise that the economy wasn’t doing great. However, they promised the employee that once things got better, they would increase the salary back to what it originally was. But when the economy did recover, the company didn’t keep to their word. Instead, they asked the employee to sign a new contract agreeing to the current pay which was lower. This case also went to the Industrial Court and this time, the court said that the company had been unfair in not reinstating the previous salary. So, the bottom line is this, your pay can be cut for a certain period as long as you are okay with it. But if your boss promises to pay you your previous salary after a certain time, they’ll have to keep their promise. Here’s what you can do if your pay has been cut Basically, if your pay was cut but it wasn’t because of something you did or due to an economic crisis, you can take action against the company. The first thing to do would be to talk to your boss and Finance & HR departments to ensure that your cuts were not due to some error or miscommunication. But if they insist that they were right in cutting your pay, you can file a case in the Industrial Court for not doing their part in the employment contract. Section 30(5) of the Industrial Relations Act 1967 says: The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form. So, the Industrial Court will decide your case based on fairness and used the appropriate law to help the wronged party. There’s actually a law in the National Salary Consultative Council Act 2011 which states that an employer who does not pay his employees without a good reason is actually committing an offence. This can be found in Section 43 of the Act, which says: An employer who fails to pay the basic wages as specified in the minimum wages order to his employees commits an offence and shall, on conviction, be liable to a fine of not more than ten thousand ringgit for each employee. So, if your boss is shortchanging you for no valid reason, he’s going to end up paying a very, very hefty fine."
"Here's 3 situations to get your money back if your Valentine’s gifts are late in M'sia In today’s society, the celebration of Valentine’s Day has brought great benefits to businesses—particularly to florists and restaurants. And the practice of spending on a significant other is gaining popularity. A research in 2019 found that credit, debit and prepaid card transactions made from 11th to 14th February increased by 23% from 2016 to 2018, and spending on flowers itself soared by 104% since 2016. With that much spending which is automatically followed by a hectic schedule for sellers on this day—it’s logical to wonder what would happen if Valentine’s Day gifts are not delivered on time? If delivery is made AFTER Valentine’s Day, you CAN get a refund We all know Valentine’s Day is on 14th February—so gifts should naturally be delivered on that day. The most commonly-delivered gifts are bouquets or stalks of flowers. Now if the flowers arrive on 15th February or later, then you can demand (or even sue for) a refund. This is because the whole purpose of buying the flowers was to have them delivered on Valentine’s Day. The failure of your seller to meet this purpose makes your purchase practically meaningless.Therefore, you have a right to ask for a refund and refuse the flowers if the florist asks you to accept them. But here’s a situation: What if your florist plays dumb and says he didn’t know that 14th February was the delivery date for your Valentine-themed bouquet? And it’s not looking good for you if you have no proof of the delivery date you specified to them. Well, here’s some good news: You don’t have to set this obvious deadline after all because it is customary understanding that Valentine-themed gifts must be delivered ON Valentine’s Day. The judge in the case of Cheng Keng Hong v Government of the Federation of Malaysia had this to say about “customs” that don’t require written notices: “...This so-called practice, more correctly in law called trade usage or custom, may possibly form part of a contract although not expressly incorporated in the written agreement...” Basically, this means that there is no need to say out loud that the flowers must not be delivered on 15th February. It goes without saying that 14th February is the day to send any of these gifts. But take note: If you’re wondering if you can get a refund for late delivery timings on V-day, ie; the flowers arrived at 4pm instead of the scheduled 3pm—you won’t get the refund because it’s still delivered on Valentine’s Day. Now let’s see how the law works for gifts other than bouquets on Valentine’s Day...that may have not arrived on time. Gift idea 1: Order 400 roses for a grand proposal (but it’s delayed) Imagine this: You plan to propose to your girlfriend on Valentine’s Day, and you’ve decided to do it outdoors. Decorations have to be ready and presentable hours before the event, and the items have to arrive even earlier so there are no last minute blunders. You order 400 red and pink roses which are due to arrive 2 days before Valentine’s Day—giving you more than enough time to get the floral arrangements in order. But things don’t go as planned: Your flowers do NOT arrive on time! (1st Delay) You call up the florist, who ended up giving you some lame excuse, so you set a new due date—which is the morning of Valentine’s Day. If the roses still don’t arrive by then (2nd Delay), you can actually ask for a full refund. Now here’s something to take note of. You can only get a full refund if there are 2 delays or more, as set in the case of Mensa Mercantile v Eikobina (M) Bhd, “...time can only be made the essence of a contract by one party giving notice to the other subject to two requirements: (a) that the other party has been guilty of unreasonable delay; and (b) the time mentioned in the notice must be reasonable...” The judge in the excerpt above basically stated that even though the timing was not emphasised when you made your purchase, it CAN become important after the first delay, as you have set a second reasonable due date. But what if getting a refund isn’t enough for you and you want to be compensated further? The last thing any man would want is for a marriage proposal to go bad. But if a refund does not help resolve your issue, there is another thing you can do. Butttt...this would depend on who you are. If you’re a “VIP” who invited family, friends, business partners and acquaintances, and maybe even the press, then you may have a chance to demand a compensation for any embarrassment caused, due to the delays made by the florist who didn’t deliver the roses. This may sound pretty far-fetched but there actually is a Singaporean case that supports a claim for embarrassment and humiliation caused towards a person’s reputation. In James Yu v Raffles Hotel, the Singapore Court ordered the hotel to pay the club manager, James Yu, for the “mental distress” caused to him when the hotel didn’t serve enough food to feed the 220 wedding guests. This is simply because the distress undergone by him wasn’t something that could be easily compensated. This type of compensation claims only apply if you are a VIP who invited a lot of guests, and the hotel/seller’s mistake gave you “mental distress”. But if you’re not a VIP, there is almost no chance of being compensated for this. This is probably because the humiliation suffered does not reach the degree of mental distress, undergone by someone who wanted an extravagant celebration/event. So if you’re ever going to propose, perhaps it would be better to plan it at a large scale…for a larger compensation if things fail to go your way ;) So as we mentioned earlier, compensation is allowed—but only if the situation satisfies the criteria stated above. Now let’s take a look at another LOUD and proud way to express your love <3 Gift idea 2: Hire a choir on V-day (and they don’t make the pitch) Speaking of extravagant proposals, if you’re a hopeless romantic that happened to hire a band or a choir to perform for your lover, and to your horror these performers arrive late—what can you do? The law states that if a certain situation/event requires punctuality, and the seller/provider fails at being punctual—the buyer/customer can sue for a refund even with just ONE unmet deadline. The judge in Tan Ah Kian v Haji Hasnan said: “...time is the essence of the contract where from the nature of the contract or of its subject matter time must be taken to be of the essence of the agreement...” This essentially means that if the event is time sensitive, the performers must stick to the first (initial) deadline. An example of a tightly-scheduled event is a wedding. If you hire a choir to sing at your wedding, they must come at according to the time set, because the whole schedule could be sent into turmoil if they were late. If they do arrive late, you can get a refund because a delayed performance defeats the point of hiring them in the first place. As for compensation, as we mentioned earlier this depends on whether you’re a VIP who invited many guests, and the performers’ mistake caused you to suffer mental distress. If you fulfill these criteria, you are eligible to be compensated...otherwise you won’t be. The tapao note: Whatever happens, there are usually laws in place to help you get back your money for late delivery. But as always, it’s best to speak with your seller heart to heart first, before going lawyer to lawyer with them."
"4 sebab anda boleh disaman oleh pengurusan kondominium [Click here for English version] *Artikel ini hanya terpakai untuk hakmilik strata di Semenanjung Malaysia dan Wilayah Persekutuan Labuan sahaja. Hakmilik strata adalah seperti kondominium, apartmen, rumah pangsa, apa-apa hartanah berbilang tingkat dan komuniti berpagar. Kalau korang selalu baca artikel-artikel Asklegal, korang mesti pernah baca banyak artikel tentang menyaman pemaju dan pengurusan kondominium. Tapi tak hairanlah, kerana sebagai pengguna, kalau kita tak puas hati dengan pemaju atau pengurusan, kita mesti nak cari jalan untuk dapatkan pampasan dari mereka. Tapi, benda tu tak salah pun, sebab korang memang ada hak untuk saman pihak pengurusan kalau: Ada undang-undang tertentu yang membenarkan korang buat macam tu, atau Pihak pengurusan kondo korang tak tunaikan apa yang dah dijanjikan dalam kontrak antara korang dengan mereka. Tapi, saman-menyaman ni bukanlah hak eksklusif pengguna – sebenarnya pihak pengurusan pun boleh saman korang jika tak patuh dengan peraturan-peraturan yang dah ditetapkan. Dan ini dia antara sebab-sebab yang boleh membuatkan mereka bawa korang ke mahkamah. 1. Tak bayar yuran penyelenggaraan dan Kumpulan Wang Penjelas (Sinking Fund) Kalau korang lambat bayar yuran penyelenggaraan dan Kumpulan Wang Penjelas (Sinking Fund), korang biasanya akan diberi peringatan dari pihak pengurusan atas tunggakan tu. Peringatan tu mungkin diberi dalam bentuk surat amaran, ataupun senarai orang yang masih tak jelaskan bayaran yang dipampang di papan kenyataan. Dan kalau dah berbulan tak bayar pula, pihak pengurusan mungkin akan menyekat kad akses korang, atau lebih agresif lagi dengan mengunci (clamp) tayar korang. [BACA LAGI: Why you should pay your maintenance fees & sinking funds] Sebenarnya, kalau korang nak tahu – pihak pemaju dan pengurusan kondo memang diwajibkan buka akaun untuk kumpulan wang ni, dan korang pula wajib buat bayaran dalam akaun tu. Seksyen 25(1) Akta Pengurusan Strata 2013 menyatakan: Setiap pembeli hendaklah membayar Caj, dan caruman kepada kumpulan wang penjelas, berkenaan dengan petaknya kepada badan pengurusan bersama bagi penyenggaraan dan pengurusan bangunan atau tanah yang dicadangkan untuk dipecah bahagi kepada petak-petak dan harta bersama di dalam suatu kawasan pemajuan. Undang-undang di atas pada dasarnya beritahu yang korang kena bayar caj (yuran) kepada pihak pengurusan untuk petak korang (unit kondo). Dalam pada itu, Seksyen 34 dalam Akta yang sama juga kata – yang pihak pemaju boleh ambil tindakan terhadap korang kalau korang gagal membayar yuran-yuran yang ditetapkan. Banyak benda sebenarnya dalam akta ni, tapi ini versi ringkas akta ni: kalau korang tak bayar tunggakkan, pihak pengurusan perlu bagi korang notis korang diberi tempoh tak kurang dari 14 hari untuk bayar jumlah yang tertunggak tu, dan jumlah hari yang tepat akan dinyatakan dalam notis yang diberikan kepada korang kalau korang masih belum bayar selepas tempoh notis, pihak pengurusan boleh failkan kes terhadap korang penalti untuk kesalahan tak bayar ni boleh mencecah denda maksimum RM5,000 atau penjara 3 tahun atau kedua-duanya. kalau korang tetap tak bayar, korang boleh didenda setinggi RM50,000 untuk setiap hari yang korang tak bayar tu. Satu lagi benda penting yang korang kena tahu, yuran penyelenggaraan dan Kumpulan Wang Penjelas ni dua perkara berbeza dengan tujuan yang berbeza. Untuk yuran pertama, ia untuk menyelenggara tempat tu, sementara yang kedua pula digunakan untuk pembaikan utama kawasan hartanah. Disebabkan hal ni, pihak pengurusan akan ada dua akaun berasingan bagi setiap yuran dan korang pula kenalah bayar kedua-duanya. Dengan kata lain, kalau korang cuma bayar yuran penyelenggaraan dan bukan yuran Kumpulan Wang Penjelas, korang tetap akan dapat masalah. 2. Ubahsuai rumah tanpa kebenaran Korang mungkin mahukan ruang rumah yang selesa dan sedap mata memandang. Tapi, kalau korang tinggal di kondo atau mana-mana hartanah strata, sebelum buat apa-apa pengubahsuainan, korang mesti dapatkan kebenaran dari pihak pengurusan dulu. Korang kena dapatkan permit ubahsuai dari majlis tempatan dan lepas tu dari pihak pengurusan kondo pula. Lepas dah dapat lampu hijau daripada dua pihak ni, barulah korang boleh buat pengubahsuaian. Dalam masa sama, bukan semua kerja ubahsuai yang kita nak buat tu kena ada permit. Kalau korang cuma nak cat dinding atau pasang lampu baru di dapur, tu semua tak perlukan permit. Bagaimanapun, kalau korang nak runtuhkan dinding antara bilik atau besarkan balkoni, korang kenalah dapatkan kebenaran dari pihak pengurusan. Rasionalnya di sebalik semua ni bila di hakmilik strata adalah – korang dan jiran-jiran berkongsi blok yang sama, jadinya korang tak boleh ubah sesuka hati apa-apa ruang di luar rumah. Kalau korang nak cat balik koridor dengan warna lain atau tukar jubin dekat sana, dah terang-teranglah korang nak minta kena saman dengan pihak pengurusan. [BACA LAGI: Certain home renovations in Malaysia may not require permits. Here’s why] 3. Simpan haiwan peliharaan dalam kondo Sebenarnya, undang-undang tak kata dengan jelas sama ada korang boleh atau tak simpan haiwan peliharaan dalam kondo. Tapi apa yang dikatakan adalah – korang boleh simpan, kalau dibenarkan oleh pihak pengurusan. Seksyen 14, Peraturan Pengurusan Strata (Penyenggaraan dan Pengurusan) 2015 menyatakan – korang boleh simpan haiwan peliharaan dalam kondo dengan syarat haiwan tu tak mendatangkan kegusaran dan kacau ganggu kepada penghuni lain. Kalau haiwan peliharaan korang tu mengganggu orang lain, haiwan tu boleh dikeluarkan dari bangunan dan tindakan akan diambil terhadap pemiliknya. Bagaimanapun, peraturan ni tak terpakai untuk semua rakyat Malaysia, sebabnya cuma ada beberapa negeri je yang benarkan haiwan peliharaan di hakmilik strata. Akan tetapi, walaupun ada negeri yang ikut undang-undang ni, keputusan akhirnya masih jatuh kepada pihak pengurusan kondo. Sebab secara dasarnya, undang-undang memberikan hak kepada pihak pengurusan untuk buat keputusan sama ada nak benarkan atau tak haiwan peliharaan di hartanah korang. Melalui undang-undang ni, pengurusan juga boleh menetapkan jenis binatang yang boleh disimpan dan apa saiznya. Kalau pihak pengurusan kondo korang benarkan haiwan peliharaan, tapi undang-undang negeri pula tak benarkan – maknanya korang memang tak boleh simpan haiwan peliharaan di rumah. Ini kerana, undang-undang negeri mengatasi peraturan pengurusan dan kalau negeri tak benarkan pihak pengurusan benarkan korang simpan haiwan – makanya tak ada apa yang korang boleh buat. [BACA LAGI: Can you legally keep pets in Malaysian apartments?] 4. Langgar peraturan-peraturan pengurusan yang lain Disebabkan hartanah strata adalah ruang yang kita kongsi dengan penghuni lain, jadinya pihak kondo ada hak untuk melaksanakan peraturan-peraturan bagi memastikan setiap penduduk selesa. Seksyen 32(3), Akta Pengurusan Starata 2013 menyatakan: Badan pengurusan bersama boleh, melalui suatu ketetapan khas, membuat undang-undang kecil tambahan atau membuat pindaan kepada undang-undang kecil tambahan itu, yang selaras dengan undang-undang kecil yang ditetapkan... bagi mengawal selia kawalan, pengurusan, pentadbiran, penggunaan dan penikmatan bangunan atau tanah yang dicadangkan untuk dipecah bahagi kepada petak-petak dan harta bersama... Jadi ni maknanya, pihak pengurusan kondo boleh buat peraturan-peraturan baru atau meminda apa yang dah ada bila perlu. Mereka boleh jalankan peraturan ni kepada pelawat yang datang, program-program, penggunaan fasiliti dan termasuk juga macam mana korang patut sidai baju. Biasanya pihak pengurusan akan siarkan peraturan-peraturan ni di tempat yang orang senang nampak (macam papan kenyataan misalnya). Tapi, kalau korang tak berapa pasti atau tak tahu apa dia peraturan-peraturan yang ada di kondo korang, bertanyalah kepada pihak pengurusan. Sekurang-kurangnya, tak lah korang kena denda sebab langgar peraturan, kan?"
"Can you sue an airline in Malaysia for losing your luggage? Note: This law actually applies to any airline, Malaysian or foreign, as long as you had flown to or from Malaysia. After a long 12-hour flight, you’ve finally landed in KLIA. You’re missing your vacation in London already, and you’ve brought home a ton of mementos from your trip. It’s time to collect your bags and you’re so excited to get home so that you can give all these gifts to your family. You’re waiting and waiting… and waiting. 20 minutes pass, and most of the bags have been claimed by their owners. Another 20 minutes go by, and there are just 3 bags left on the conveyor belt – none of which are yours. Frustrated, you walk over to the nearest airport staff you see and tell them that your bag is not there. She then tells you that your bag might arrive later or worse, missing, as in it might have been accidentally put on another flight. You also realise that together with your gifts, you had a bunch of essentials like your clothes and chargers. You’re asked to file a complaint to the airline, but you’re not sure if getting your luggage back or receiving some compensation alone is enough. You might want to sue the airline for the inconvenience caused, but… can you? A man tried suing, but failed Someone actually did try suing Air Asia X for RM 11,700 back in August 2019. S.Ragindran had flown from Penang to Kuala Lumpur, and then from there to Melbourne. He arrived safely in Melbourne, but his luggage did not. And there was still no sign of it even after he returned to Penang. He made several queries to the airlines, but the luggage still couldn’t be located weeks after that. And it wasn’t a short wait—Ragindran’s actually been waiting for it since 2017. So, it actually took 2 years before he sued the airlines in 2019. According to his lawyer, the luggage had contained several valuables such as a watch and branded clothing, and that’s why he was suing for a hefty RM11,700. But Ragindran wasn’t just suing them for the lost luggage—he was suing them for the way they lost it. He sued the airline for negligence, which meant that he felt the airline had been careless, and that is why his luggage was missing. At first, the airline went by their compensation policy for lost luggage and offered him USD 200. They later increased this to USD 300, but Ragindran refused to accept this and carried on with the lawsuit. However, the court dismissed his claim. (We’ll tell you why below—it has something to do with T&Cs). But that’s not all. HE ended up having to pay AirAsia X RM 1,000 instead, to compensate for AirAsia’s time and cost spent for going through this case. So…judging from his case, suing doesn’t seem to be the best option here. But don’t worry, going to court isn’t the only way— there are still other routes to take. Complain to the airline… or to MAVCOM Ever notice how at the bag drop at airports, the person checking you in will stick tags with bar codes on your bag? That bar code is how your bag is tracked at every point. So, if your luggage is missing, the first people you’ll need to contact will be the airline itself, as they’ll be able to find out where your bag last was. When it happens, you’ll need to send a written complaint to the airline within 7 days from the time you land. But… what if days and weeks go by, and the airline still doesn’t get back to you? You don’t have to wait 2 years like the man in the case above. If they aren’t of much help to you and they don’t resolve your problem within 30 days of your complaint, you can go to the Malaysian Aviation Commission (MAVCOM). This commission was set up for take care of a whole range of matters in the aviation industry, including the safety and welfare of passengers. And a part of this is to ensure that customers get their luggage safely and on time. We took a look at MAVCOM’s website, and they actually encourage passengers to contact the airline first. But if you’re not happy with what the airline is (or isn’t) doing, you can file a complaint directly to MAVCOM, and you can find the form here. MAVCOM’s website also states that your airline MUST compensate you, even if you didn’t buy travel insurance. To back your claims and be fully compensated for all your losses, MAVCOM had also advised passengers to keep receipts of: things that you bought and packed into your luggage. If your bag is never found, they will have to add these items into the list of things you’re being compensated for. anything that you buy after your luggage is lost… to replace only what was lost, that is. If you needed to buy new clothes and toiletries because everything was in the luggage, your airline is supposed to compensate for all this, too. But sometimes the solution to deal with the issue starts way before—in the fine print, when you’re buying your plane ticket. Know the airline’s policy Each airline will have its own policy when it comes to lost or delayed luggage. This policy will be stated in the terms and conditions of your air ticket, so it’s super important to read the fine print before buying one. Airlines will usually compensate you monetarily if your luggage can’t be found by a certain period. How much they will compensate you and by when you will be compensated, depends on the airline as well. Remember when we said that Ragindran lost his case because of T&Cs? Well, in Ragindran’s case mentioned above, the case was thrown out because the airline could prove that it had already been stated in their terms and conditions that they would only pay a certain amount for lost luggage. While Ragindran said he had not been aware of this, the lawyer who represented AirAsia X said “...not likely as those buying AirAsia’s tickets online must click “agree” on the terms of conditions before the tickets could be purchased”. Basically, this means once you purchase your ticket, you agree to the terms and conditions set by the airline and you’re obligated to adhere to them. In the event that your luggage goes missing, the airline will deal with your case following their own policy. Again, you can take your case to MAVCOM if you feel there’s more that can be done to get your luggage back. And of course, there’s nothing to stop you from suing the airline. But whether you succeed in building a case against them is a different story altogether, especially when you’ll have to prove that the airline was indeed careless in handling your luggage. [READ MORE: 5 rights you didn’t know you had as an airline passenger in Malaysia]"
"Can Malaysian companies change your job description...after you sign the contract? [Klik sini untuk versi Bahasa Malaysia] Imagine this: You finally landed a job as a sales executive at a local company. Everything has been going great for almost 6 months—you have an amazing boss, you manage to reach your monthly targets and you’re finally getting comfortable in your position. But this didn’t last very long. You eventually find yourself doing other things...that are not even part of your job scope. You confront your boss about it, and he tells you that it’s all part of your position as a sales executive. But you have your doubts now since it was not what you signed up for in your employment contract. The worst part is, you’re not even getting paid for it! So the question now is, can your company change your job description after you signed a contract, with a different job description? A Malaysian woman sued her company for it To answer the question posed above, we’ll be looking at an Industrial Court case from 2012. In Ng Bee Yoong v. Capital Development Sdn Bhd, the employee was initially working under Petaling Garden Berhad (PGB). She was later transferred to a subsidiary of PGB, which was Capital Development Sdn Bhd (the Company she sued). Now somewhere in 2009, Capital Development and PGB became wholly-owned subsidiaries of PNB Commercial Sdn Bhd. A year later, the employee was given a letter of transfer, asking her to redesignate herself to a completely different job scope...in a completely different company under PNB. She was initially the Property Manager in Capital Development, and was offered a transfer, as a Sales and Property Manager in Hotel Sri Petaling KL, which is a company under PNB. This was somewhat like a demotion from her previous position as well. To sum this all up, the employee was asked to transfer from her current position to a new position which she wasn’t qualified for in the first place. So the employee decline the offer that was made. However, her company had different plans for her non-acceptance: They decided to fire her for not accepting the transfer—which led to this huge lawsuit that she ended up winning RM 173,990.40 from. The company’s argument for firing her was, that she had abandoned her job without giving substantial notice and failed to respond to the letter of transfer given by the company. So when the dispute came to court, 2 things had to be decided. SPOILER ALERT: The court agreed with the employee The Industrial Court found 2 issues that had to be decided on in this case: If the company had unfairly fired her under constructive dismissal. Whether the transfer offer was fair to the employee. Now, before we get into the details of the decision, let’s just briefly understand how constructive dismissal works. Constructive dismissal happens when the employer breaches an important term in the employment contract, which led to either the employee resigning or being fired. A claim of constructive dismissal can be made under Section 20(1) of the Industrial Relations Act 1967, which states that no employees shall be terminated without just cause and excuse: “Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment; the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed.” Based on the law above, the court in this case concluded that the employee had a claim under constructive dismissal. The court went on to say that the dismissal was done without a just cause or excuse. The transfer of the employee was considered unfair as the job description was not what her employment contract mentioned. [READ MORE: Can Malaysian law protect you if your boss forces you to resign?] Also, here’s an excerpt from a letter that was admitted in court, which shows that the employee had actually told her employer that the terms of the transfer and re-designation of her job, was unfair: “The proposed transfer was to a different company, to do totally different scope of work, in a totally different industry....The job description for the position of Sales and Property Manager specifically required that I must have the education competency of at least a Diploma/Degree in Hotel Management with at least 5 years related working experience. You know very well that I do not possess such qualifications or exposure...” This showed the court that the employee was aware of the unfairness in the transfer, and even went on to argue that her contract of employment never mentioned that she would be transferred to a totally different job scope. So if you’ve ever been re-designated to do something beyond your job scope, here’s something to take note of: Companies cannot force employees to take on a new role Generally, companies have the right to transfer employees within the company. But in this case, the companies involved are 2 separate companies and the job description was not what was stated in the employee’s contract of employment. Therefore, employer’s must ensure that any transfer of employees should not significantly change the job description in the employment contract, is not a demotion and isn’t done in bad faith towards the employee. And if you’re an employee who feels that you have been unfairly terminated for refusing to accept a transfer or new job scope, you may bring a case to the Industrial Court. Section 30(5) of the Industrial Relations Act 1967 provides: “The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.” Basically, the court will take into account the welfare of employees who have been unfairly dismissed. But keep in mind, you have 60 days to file a complaint after being dismissed. You can check out how to do so, with this guide. If the court finds that you have been unfairly dismissed, you’re entitled to certain benefits. Employees who have been unfairly dismissed are entitled to claims stated under the Employment (Termination and Lay-off Benefits) Regulations 1980. However, some companies have their own policies and regulations on termination benefits. So, it would be best to check with your company first."
"In 2006, this Dato sued for unpaid RM20m middleman fee from SG-JB bridge. He almost won. As Malaysians, it is not uncommon for us to hear about companies securing contracts through the backdoor, especially through a middleman, provided you offer them a financial “gift”. And these gifts don’t come cheap. As recently as August 2019, a World Bank survey from 2015 reported that the gifts are worth around 3.3% of the contract value. To put things into perspective, for a contract worth RM1mil, you would have to pay the middleman approximately RM33,000. And such “gift-offerings” are more widespread in our country than some of us dare to believe. The same World Bank survey also discovered that 51.4% of Malaysian companies are expected to offer gifts to secure government contracts. But what happens if a company that secured a government contract through a middleman, REFUSES to pay him afterwards? This exact scenario happened in the early 2000s, when Merong Mahawangsa Sdn Bhd, which won the RM640mil Johor-Singapore crooked bridge contract, refused to pay their middleman, Dato’ Shazryl Eskay his promised fee of RM20mil. Dato’ Eskay, embittered, went to court and sued Merong Mahawangsa for his “rightful” fees for securing the crooked-bridge project. This is the case of Merong Mahawangsa v Dato’ Shazryl Eskay bin Abdullah. The Dato’ bridged the...bridge project for Merong Mahawangsa This story began on 5th July 1996, when the then (and now) Prime Minister, Dr Mahathir Mohamad, proposed replacing the Johor Causeway with a crooked S-shaped bridge. The government was ready to pay RM640mil for this bridge project, which naturally attracted many companies to bid for it. But one company, Merong Mahawangsa, went the extra mile to secure this multimillion-ringgit project. Merong Mahawangsa approached Dato’ Eskay, who claimed to share good relationships with the government of that time. Dato’ Eskay promised to secure the bridge project on their behalf. All it took was a fee of RM20mil, which was roughly 3% of the project’s value. This was agreed upon and signed in a contract, but only IF he can secure the project. However, that wasn’t all that was written. There was also a specific clause in the contract which said that Dato’ Eskay will only be paid if the bridge project “remains valid and subsisting”. This essentially meant that the RM20mil should only be paid if the bridge project is ongoing until it is completed (please remember this clause, it’s important for later). Dato’ Eskay held up his end of the bargain, and managed to secure the project for Merong Mahawangsa. But as the preliminary construction works of the bridge began, Merong Mahawangsa did not pay out the RM20mil to Dato’ Eskay just yet. Merong Mahawangsa refused to pay Dato’ Eskay...because it’s illegal Before Dato’ Eskay got paid, things went downhill—the government terminated the crooked bridge project on 12th April 2006. But Merong Mahawangsa was not left hanging. On the contrary, the government paid them a hefty compensation of RM155mil for cancelling the project. However, Merong Mahawangsa refused to pay Dato’ Eskay his RM20mil fee. Furious, Dato’ Eskay filed a lawsuit against Merong Mahawangsa to claim his RM20mil. Why did Merong Mahawangsa refuse to pay? They had 2 reasons. First, they claimed that it was illegal to use Dato’ Eskay’s good relationship with the government to secure the project. Which can sound surprising, considering that was the reason they approached him in the first place. They referred to Section 24(e) of the Contracts Act 1950 which says, “24. The consideration or object of an agreement is lawful, unless…(e) the court regards it as immoral, or opposed to public policy...” Secondly, remember the clause we told you to remember earlier? In that clause, it’s said that Merong Mahawangsa would only have to pay the RM20mil fee IF the bridge project is continued until it’s completed. So, when the project was terminated, Merong Mahawangsa claimed that they had no obligation to pay Dato’ Eskay. So what did Dato’ Eskay have to say about this? He had 2 reasons why they had to pay him. First of all, the Dato’ said that the RM20mil deal with Merong Mahawangsa was only to get the project. Since he managed to get the government to take up Merong Mahawangsa’s tender, he earned the RM20mil and should be paid accordingly. Second, he said that Merong Mahawangsa had already benefitted from the RM155mil compensation from the termination of the bridge project. So, it was only fair to pay out the RM20mil promised to him. Their reasons were submitted to the courts and the judges had to decide who was right—or depending on your point of view, less wrong in this situation. They went to three courts...and got three different answers This case kicked-off in the High Court of Kuala Lumpur. But every time a decision was made, it was challenged, until the ultimate verdict was given by the Federal Court, the highest court of Malaysia. High Court The judge here decided that the contract was legal because there was not enough evidence to prove otherwise. He even went on to say that Dato’ Eskay was doing the public some good by securing this project for Merong Mahawangsa, since the bridge would have benefitted the general public if it had not been terminated. So the contract was legal, which means that the clause which said that the RM20mil only had to be paid if the bridge project was continued was also legal, valid, and must be followed. But since the project was terminated, the RM20mil fee didn’t have to be paid. Verdict: Merong Mahawangsa won Court of Appeal The decision was challenged, and brought to the Court of Appeal. Unlike in the High Court, the Court of Appeal did not consider the legality of the agreement at all (and was later criticised by the Federal Court for this mistake). Here, the judges said that there was a difference between the award of the project with the government and the project itself. The award of the project means getting the project for Merong Mahawangsa, whereas the project itself was Merong Mahawangsa’s construction of the crooked bridge. This means that the RM20mil fee was only for securing the project, and since Dato’ Eskay managed to get the project for Merong Mahawangsa as agreed, he should be paid regardless of whether the construction was later terminated. Verdict: Dato’ Eskay won Federal Court Again, the decision was challenged and reached the Federal Court. Ultimately, the judges agreed with Merong Mahawangsa that the agreement with Dato’ Eskay was illegal under Section 24(e) Contracts Act 1950, which says that contracts which go against public policy and welfare are illegal. This contract went against public policy and welfare because for Dato’ Eskay, “...to use his position and interest to procure a benefit from the Government, as the sale of influence engenders corruption and undermines public confidence in the government, which is inimical to public interest...” In short, Dato’ Eskay using his influence to secure the government project, in exchange for a fee, is an act of corruption. That makes the contract illegal, so they didn’t have to pay Dato’ Eskay. When the Federal Court Judges reviewed the decisions of the lower courts, they disagreed with the Court of Appeal about there being a difference between the award of the project and the project itself because these two were “intrinsically linked”. This meant that getting the project for Merong Mahawangsa was directly connected to Merong Mahawangsa’s construction of the bridge. There is no difference between the two. The Federal Court judges had more to say, “...we could not fathom how the illegal agreement could be upheld by the [High] court or how illegality could pass without a word of comment by the Court of Appeal…” Ultimate Verdict: Merong Mahawangsa won. They didn’t have to pay Dato’ Eskay the RM20mil fee. If you’re still not sure: using a middleman is illegal To sum things up, the multimillion-ringgit project was found to be procured by Merong Mahawangsa through unlawful means. When they hired Dato’ Eskay, who used his influence and good relationship with the government to secure it, their method went against public welfare and policy. The Malaysian government today has no intentions of reviving this crooked bridge project, and is reported to be looking into constructing a Johor Bahru-Singapore Rapid Transit System Link instead, which is said to be a more viable system to resolve the problem of traffic congestion."
"Failing to commit suicide in Malaysia is a crime...but why? In Malaysia, if you commit suicide – and fail – you might have more to deal with than your mental illness. A disabled man from Terengganu found out the hard way, when he was jailed six months for attempted suicide. This is because attempting suicide is a crime in Malaysia, under Section 309 of the Penal Code. But getting imprisoned for attempting suicide is actually a rarity. Although the law states that suicide is a crime, our police tend to not prosecute these cases. In fact, most attempted suicide cases will not be brought to court. Instead, the police will just mark it as ‘No Further Action’, as they do not want to add more stress to the person. Still, if the police tend to not prosecute these cases and prefer to show compassion instead, why is attempting suicide still a crime in Malaysia? Because the British outlawed it… and we followed their laws According to Section 309 of the Penal Code: Whoever attempts to commit suicide, and does any act towards the commission of such offence, shall be punished with imprisonment for a term which may extend to one year or with fine or with both. Basically, whoever tries to commit suicide will be fined and receive a maximum one year of imprisonment. But Malaysia didn’t decide on that law in the first place – our laws are actually based on British law, which was implemented back when we were still a British crown colony. But our laws weren’t a direct copy of British laws. The Penal code – which is basically a list of all criminal punishments in Malaysia – was actually based on the Indian Criminal Code. Back when India was colonised by the British, they adopted the British legal system. When the British came to Malaya, they thought that the version in India worked well enough and adapted it, but also added a little bit of the laws from Australia, another British colony. The Penal code isn’t the only law adopted, though. There are a number of laws made during the colonisation that is still used today, which was modified to suit the domestic law and current circumstances. There’s a slightly more in-depth version of how we got our laws, which you can read below. [READ MORE: Where does Malaysia get its laws from? ] In short, the British shaped the legal system of countries that they colonised. Since Malaysia followed the Indian Penal Code, which followed the British code, whatever is a crime there, is also a crime in Malaysia. This is why suicide is a crime in Malaysia. So...why did the English consider suicide a crime? Well, the answer comes from a higher place. Your soul can’t be saved if you commit suicide The reason lies in religion – specifically, Christianity and the English puritanical church a few centuries ago. Church ideas at the time were influenced by two Christian theologians and philosophers from different eras: Augustine of Hippo from the 4th century and Thomas Aquinas from 12th century. These two figures promoted the view that whoever intentionally took away the life given to them by their Creator showed that they utterly ignored the will and authority of God. This is because going against God jeopardises their chance at salvation, so the Church perceived suicide as a sin. Despite their views being accepted by the church, self-murder, as suicide was termed back then, only became a crime under common law in England in the mid 13th century. But before that, suicide was already condemned as a mortal sin in the eyes of the Church. There were serious consequences if the person was found dead by suicide. Not only will the church deny the deceased a Christian burial, but their family will also be stripped of their belongings, which will be handed to the Crown. And not only will they be denied a Christian burial, sometimes they won’t be buried at all. According to an article: “The decease will be carried to a crossroads in the dead of night and dumped in a pit, a wooden stake hammered through the body pinning it in place.” The church’s punishment towards those who attempted suicide was ruthless, and punished not only the deceased but also their surviving kin. Malaysian law is slowly catching up With time, the attitude towards suicide started to change. What was thought of as sinful before is now viewed as a cry for help. In 1958, the British Medical Association and Magistrate Association urged a ‘more compassionate and merciful outlook’ towards suicide. In the same year, a bill to decriminalise suicide was tabled in the British parliament; it was immediately signed by 150 MPs. A year later, the Church of England joined the calls for change. And three years after it was tabled, The Suicide Act 1961 was introduced which decriminalised suicide in England and Wales. People who commit suicide will no longer be punished. Other countries that adopted UK’s legal system are also following suit. India has passed the Mental Healthcare Bill in 2016, and enacted the Mental Healthcare Act in 2017. This Act aims to decriminalise attempted suicide and ensure the victims are offered an opportunity for rehabilitation. And last year, our favourite neighbouring country, Singapore, has also amended their law to decriminalise attempted suicide. It will be effective on 1 January 2020 as part of the Criminal Law Reform. Malaysia has also been catching up with the change in attitude towards suicide. In the past two years, the Malaysian government has worked towards decriminalising suicide cases, and actively studying ways to reduce the suicide rate. These changes in our laws could happen as early as mid-2020. The Health Ministry supported this decision, as it would remove the stigma on mental issues. “It is hoped that more people who are at risk will come forward to seek help (with the decriminalisation),” said the Health Ministry in a statement. Suicide is preventable. For those who need help or struggling with suicidal thoughts, you can call Befrienders at 03-7956 8144 or 03-7956 8145."
"Pada 2004, kerana nak bayar yuran pengajian, lelaki ni saman bapanya sendiri [Click here for English version] Kadang-kadang tu, memang biasalah kalau kita ada salah faham dan perselisihan dengan ahli keluarga kita. Mungkin kita merajuk dan tak nak bercakap dah dengan ahli keluarga lain. Tapi, kalau merajuk pun tak lama. Bila dah tiba masa, kita semua akan berbincang dan cari jalan untuk berdamai. Tapi, ada juga yang rasa tak semua benda boleh dibawa berbincang. Itulah yang terjadi kepada seorang lelaki dari Perak, yang buat keputusan untuk bawa kesnya ke mahkahmah dan saman bapanya sendiri. Kes saman-menyaman orang tu memang kita dah biasa dengar, tapi kes saman ahli keluarga sendiri? Yang ni memang unik sikit. Korang mungkin tertanya-tanya, boleh ke kita saman ahli keluarga kita sendiri? Ataupun, kes saman bapa sendiri ni hanyalah satu pengeculian? Jadinya, sebelum kitorang bercerita lebih lanjut pasal Dui Geng yang saman bapanya Woon Keat, lebih baik untuk kita jawab dulu persoalan... Di Malaysia, boleh ke kita saman ahli keluarga sendiri? Sebenarnya, undang-undang Malaysia tak halang korang dari saman sesiapa pun. Walaupun begitu, masih ada orang tertentu yang ada imuniti, seperti duta asing dan kerabat diraja. Tapi selain tu, undang-undang tak kata yang korang tak boleh saman ahli keluarga. Cuma masalahnya, kalau kita ada isu dengan ahli keluarga, ia biasanya tak ada asas undang-undang. Tapi, apa dia asas undang-undang ni sebenarnya? Kalau korang nak tahu, kes yang boleh dibawa ke mahkamah adalah sesuatu yang boleh menyebabkan tindakan undang-undang dan sesuatu yang pihak penyaman boleh mendapatkan remedi darinya. Remedi ni bermaksud, korang boleh dapatkan pampasan, sama ada wang ataupun harta benda. Dalam kes tertentu pula, ia juga boleh buatkan korang mengarahkan seseorang untuk buat sesuatu – seperti suruh jiran korang potong bahagian pokoknya supaya tak masuk laman rumah korang. Jadinya, kalau korang dan kakak korang bergaduh sebab masing-masing tak nak basuh pinggan lepas makan, undang-undang tak ada peruntukkan remedi untuk kes macam tu. Bagaimanapun, kalau korang dan adik beradik ada pertelingkahan pasal harta keluarga, kes macam ni boleh dibawa ke mahkamah. Sebabnya, undang-undang harta dan undang-undang amanah mungkin boleh bantu korang selesaikan masalah tu. Jadi, apa sebabnya Dui Geng ni nak bawa bapanya, Woon Keat, ke mahkamah? Dalam kes ni, ia bukan pasal masalah keluarga biasa, tapi melibatkan hal kewangan dan kewajiban sara diri. Oleh kerana hanya undang-undang yang dapat menolongnya, Dui Geng pun buat keputusan untuk bawa bapanya sendiri ke mahkamah. Dia nak bapanya bayar RM81,421 untuk kos pendidikannya Ibu bapa Dui Geng bercerai bila dia berumur 4 tahun, dan dia dibesarkan oleh ibunya. Masa diorang bercerai dulu, mahkamah putuskan yang bapanya, Woon Keat, kena bayar nafkah. Nafkah ni adalah belanja atau sara hidup untuk anak, seperti wang yang digunakan untuk makanan, pakaian, pendidikan, dan sebagainya. Pada mulanya, Woon Keat bayar nafkah sebanyak RM400 setiap bulan. Woon Keat juga seorang pemilik kilang di Gopeng dan dia tetap bayar nafkah tu sampailah Dui Geng berumur 18 tahun pada tahun 2000. Lepas bayaran tu tamat, Woon Keat ada minta Dui Geng datang dan bekerja di kilangnya. Dui Geng pun setuju dan mula bekerja masa berumur 19 tahun. Masa tu, Woon Keat bayar Dui Geng RM600 sebulan, sama seperti gaji yang dibayar kepada pekerja-pekerjanya yang lain. Tak lama lepas tu, Dui Geng pun menyambung pengajiannya. Tapi dia ada masalah – untuk tahun ketiga dan terakhir pembelajarannya, dia perlu melanjutkan pelajaran ke Nottingham Trent University, UK. Dui Geng telah membiayai sendiri yuran pengajian untuk dua tahun yang pertama, tapi lepas tu dia perlukan bantuan kewangan untuk tamatkan tahun akhir di UK. Bagaimanapun, disebabkan umur Dui Geng dah lebih 18 tahun, Woon Keat dah berhenti dari bagi dia duit, dan duit yang dia terima cuma gaji yang dia dapat dari bekerja dekat kilang bapanya tu. Untuk membayar yuran pengajiannya di UK, dia pun buat keputusan untuk ambil tindakan undang-undang terhadap bapanya, kerana inilah satu-satunya cara nak buatkan bapanya menolongnya. Dengan bantuan peguamnya, M Kulasegaran (sekarang ni Menteri Sumber Manusia), dia pun failkan kes tu di Mahkamah Tinggi Ipoh untuk buatkan bapanya tanggung pengajiannya. Kos yuran pengajian dan penginapannya tu berjumlah lebih dari RM81,000, dan inilah jumlah yang dituntut Dui Geng daripada bapanya. Mahkamah kata boleh saman...tapi lepas tu kata tak boleh Dui Geng failkan kes ni pada Januari 2004. Dia kata, walaupun umur dia dah lebih 18 tahun (22 tahun masa tu), bapanya masih lagi ada tanggungjawab untuk bayar nafkah kepadanya. Untuk menyokong hujahnya tu, peguamnya merujuk Seksyen 95, Akta Membaharui Undang-Undang (Perkahwinan dan Perceraian) 1976 yang menyatakan: “Kecuali jika sesuatu perintah mengenai penjagaan atau nafkah seseorang anak dinyatakan untuk mana-mana tempoh yang lebih singkat atau jika sesuatu perintah itu telah dibatalkan, perintah itu hendaklah tamat apabila anak itu mencapai umur lapan belas tahun atau jika anak itu dalam keadaan hilang upaya dari segi jasmani atau mental, perintah itu hendaklah tamat apabila keadaan hilang upaya itu terhenti, mengikut mana-mana yang terkemudian” Undang-undang ni pada asasnya nak beritahu yang ibu bapa kena bagi nafkah kepada anak mereka sampailah diorang capai usia 18 tahun. Tapi ada pengecualian, kalau anak berkenaan dalam keadaan kurang upaya dari segi jasmani atau mental, dan ia memerlukan ibu bapa memberikan nafkah dalam tempoh lebih panjang lagi. Tapi… bukan ke umur Dui Geng ni dah lebih 18 tahun, dan dia pun tak ada sebarang kecacatan. Macam mana pula dia boleh rujuk pada undang-undang ni? Dalam hal ni, peguamnya berhujah bahawa, jika seseorang terpaksa bergantung kepada orang lain untuk menampung kewangan mereka, ini boleh dikira sebagai kekurangan upaya mental dan fizikal. Memandangkan Dui Geng masih lagi belajar dan tak ada kerja, dia masih boleh bergantung kepada bapanya untuk menampung kewangannya. Mahkamah kemudiannya bersetuju dengan peguam Dui Geng, dan kata Dui Geng terpaksa bergantung kepada bapanya, dan dia ada asas undang-undang untuk menyaman Woon Keat. Itulah pengakhiran untuk pendengaran pertama, dan diorang boleh meneruskan kes diorang tu. Enam bulan lepas tu, pada Jun 2004, Dui Geng dan Woon Keat naik lagi ke mahkamah untuk pendengaran yang seterusnya. Tapi kali ni, selok-belok cerita ni berubah. Walaupun mahkamah sebelum ni kata yang Dui Geng ada asas undang-undang untuk saman dan boleh teruskan kes tuntutan mahkamahnya, kali ni mahkamah bagi keputusan yang lain pula. Dalam keputusan akhirnya, Mahkamah Tinggi Ipoh menyatakan bahawa undang-undang itu kekal sama sepertimana yang telah ditulis: Seorang anak yang berumur lebih daripada 18 tahun tidak boleh memaksa ibu bapanya untuk menampung kewangannya. Dui Geng juga tak boleh dianggap ada kurang upaya fizikal atau mental, walaupun dia masih lagi belajar. Akhirnya, mahkamah juga arahkan Dui Geng membayar kos guaman sebanyak RM3,000 kepada Woon Keat. Undang-undang sekarang dah berubah Bila kes ni diputuskan 15 tahun dulu (masa artikel ni ditulis), ia diputuskan bahawa ibu bapa yang membayar nafkah anak mereka tak diwajibkan untuk membayar kos pendidikan mereka. Tapi, hal ni masih lagi ada pengecualian, contohnya seperti dalam kes Karunairajah a/l Rasiah v Punithambigai a/p Ponniah, di mana seorang bapa dah berjanji untuk menampung kos pendidikan anak-anaknya, sampailah diorang tamat belajar. Mahkamah memutuskan, janji sebegitu tak boleh dimungkiri. Tapi dalam kes Dui Geng, Woon Keat tak buat janji macam tu, makanya – tak ada pengecualian yang boleh dibuat dalam kes tu. Dari masa tu sampailah tahun 2017, mahkamah Malaysia dah dengar banyak kes berkenaan ibu bapa yang enggan membayar kos pendidikan anak diorang setelah diorang berusia 18 tahun. Walaupun undang-undang itu masih lagi diikuti bulat-bulat dalam kebanyakan kes, ada juga kes-kes tertentu yang menuntut lebih belas ihsan dari yang telah ditetapkan. Jadinya pada tahun 2007, satu perubahan telah dicadangkan – untuk memastikan pendidikan anak-anak akan dibiayai sehinggalah mereka lulus pengajian, walaupun mereka dah berusia lebih dari 18 tahun: Pindaan seksyen 95 Akta Membaharui Undang-Undang (Perkahwinan dan Perceraian) 1976 menyatakan: Seksyen 95 Akta dipinda – (a) dengan memasukkan selepas perkataan ""ketidakupayaan fizikal atau mental,"" perkataan ""atau sedang mengikuti pendidikan atau latihan lebih lanjut atau lebih tinggi,""; dan (b) dengan memasukkan selepas perkataan ""berhenti daripada ketidakupayaan sedemikian"" perkataan ""atau penyempurnaan pendidikan atau latihan yang lebih tinggi"". Perubahan ni kemudiannya diterima Parlimen dan jadi undang-undang sah pada 15 Disember 2018. Dengan undang-undang ni, tanggungjawab ibu bapa tak lagi terhenti bila anak mereka berusia 18 tahun. Sebaliknya, ia berakhir apabila anak itu boleh mula berdikari, dengan kelebihan yang terbaik – pendidikan."
"A Penang man gave the best reason when he was caught selling erotic books in 1963... Every now and then we chance upon an interesting case that gives us the giggles for days, and this time we found one from over 50 years ago. The 1963 case of Mohamed Ibrahim v Public Prosecutor is basically about a man who was arrested for selling obscene books. But the interesting bits about this case are all the arguments put forward by the man when he was taken to court. Sadly for him, none of his arguments were accepted, and the judge shot them down one by one. And here’s a fun fact: This judge was Malaysia’s very first Chief Justice, YAA Tun Sir James Beveridge Thomson. Before we get into what arguments Mohd Ibrahim came up with, here’s some background on the man himself. He was a shopkeeper in Penang and he sold primarily books. Mohd Ibrahim couldn’t speak or read English, so he used the help of a clerk whenever he needed to understand something in English. He’d been working there for 11 years and everything seemed fine, until one fine day in September 1962… He claimed he wasn’t even selling the books On that morning, some police officers came to the shop with a warrant to search the place. During the sweep, they found a stack of books hidden under the counter, the very books that Mohd Ibrahim was arrested for. Together with the books, the police also found some receipts and invoices which indicated these books had been bought from a printing firm. The police then discovered that these books, titled the “Tropic of Cancer” were actually erotica. Under Section 292 of the Penal Code, Mohd Ibrahim had broken the law for selling these books, which were considered to be obscene material. Whoever— (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever … shall be punished with imprisonment for a term which may extend to three years or with fine or with both. The case was taken to the Magistrate Court where Mohd Ibrahim was found guilty and fined $200 ($ because the RM was only introduced in 1967). He appealed this decision, and then the case went to the Criminal Appeal Court. There, his lawyer contended that the books were not for sale, and so, Mohd Ibrahim couldn’t be found guilty as Section 292 of the Penal Code was specifically for the sale of obscene books. But the judge was quick to dismiss this argument because there was sufficient proof that the books were for sale: the receipts from the purchase of the book was proof that he had indeed bought it to be sold 100 copies were ordered, and there were only 65 left, indicating that 35 copies had been sold Mohd Ibrahim’s job in the shop was to sell books, so if the books were in his possession, it meant that he was going to sell them Now that the judge had dismissed this argument, Mohd Ibrahim had two more points of defence to tell the court... He didn’t believe the book was obscene in the first place Another one of Mohd Ibrahim’s arguments was that he didn’t think the book was even obscene. The judge obviously didn’t agree with this, and he referred to a “test of obscenity” to define what really was obscene. The test comes from the case of R v Hicklin [1868] where it was said: “The test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and whose hands a publication of this sort may fall.” -Lord Cockburn (pronounced ‘Co-burn’) Basically, for something to be considered obscene, it must have the tendency to corrupt society and its morals. Another reason the book had the tendency to corrupt the public was the fact that it was cheap. It was priced at only $3, which meant that it had the potential to reach a lot of customers and that even young people had access to the book. The judge went on to say the he himself read the book, and that there’s no way the book could be anything but… immoral. “I myself have read it and I would go so far as to say that I can discover nothing on which a reasonable Magistrate would be entitled to say it was anything but obscene.” With this argument now out of the window as well, Mohd Ibrahim could now only rely on that fact that he didn’t even know what the book was about. It didn’t matter that he didn’t know English The judge said that Mohd Ibrahim couldn’t be considered to be innocent just because he couldn’t read the contents of the book, and he went on to give a few reasons for this. 1. Knowledge/intention was not necessary Most crimes need to be proven with the existence of an actus reus and a mens rea. These respectively mean the act of the crime and the intention to do the crime. But sometimes, an intention is not needed. Just the very act of doing the crime will be enough to convict someone. This is known as strict liability. The judge said that Section 292 of the Penal Code, which is the sale of obscene books, is strict liability. So, it didn’t matter whether or not Mohd Ibrahim intended to sell the books to corrupt the morals of the public. The act of him selling the books in the shop was enough for him to be convicted. He added that the reason Section 292 exists is to protect the public from being exposed to the “corrupting influence of obscene books”. So, it was important to ensure that the law was followed to prevent this from happening. 2. He could have used someone else’s help to understand the book’s contents Mohd Ibrahim had often used the help of a clerk from a lawyer’s office whenever he needed to understand something in English. The judge then questioned him as to why he had not gotten his help, when he had done so most of the time. Another important point made was, since he was the only person who managed and sold books in the shop, it was his responsibility to know what exactly he was selling. 3. Ignorance of the law was no excuse Mohd Ibrahim’s lawyer argued that he could not have broken the law when he didn’t even know what he did was illegal, since he didn’t know what the book was all about. But the judge dismissed this, saying that someone cannot be excused just because they weren’t aware that they had broken the law. He said: “As in other matters, the individual citizen must exercise his own judgement as to what is and what is not lawful. And if he exercises it wrongly then he must face the consequences.” - Chief Justice Thomson So, it didn’t matter that Mohd Ibrahim didn’t understand English or think the book was not obscene. He had the means to find out what the book really was about. And so, the court threw out the appeal and Mohd Ibrahim was still convicted of selling obscene books. [READ MORE: In Malaysia, can you be punished for breaking a law you didn’t know exists?]"
"In Malaysia, you can charge a man for rape, but NOT a woman. Here's why Generally for rape cases, most of us would imagine a man committing the crime towards a woman. And this is mostly true as the victim is normally a woman and the perpetrator is a man. However, this isn’t exclusively the case, as men can also be sexually harmed by women. But here’s where we meet the underlying problem—sexual crimes on men are very much underreported due to reasons like embarrassment. Now we mostly hear news about men getting charged for raping or sexually assaulting someone. However, there are zero cases involving women who rape men in Malaysia. The reasoning behind this actually has something to do with how the law is worded. This led us to question if things worked the other way around for once. So, what happens if a woman committed sexual offences...towards a man or another woman? To answer that, let’s take a look at how the laws are made for these crimes. Only men can be charged for rape under Malaysian law Malaysian law defines rape under Section 375 of the Penal Code as, a man having sexual intercourse with a woman against her will or without her consent. Rape is typically punishable up to twenty years imprisonment with whipping. There are also 11 different scenarios specified in the Act— where if rape happens alongside these scenarios, the punishment can be extended up to thirty years in prison. Since the Penal Code already specifies that only men can be charged for committing the offence, this means that women cannot commit rape according to the Malaysian law. To affirm this, we asked Alex Netto, a lawyer to clarify things for us and here’s what he said: “ [This is] one that needs to be seriously explored in this country. Unfortunately at this moment, the Penal code provides for the perpetrator to be a man and the victim to be a woman.” – Alex Netto, Anton & Chen. Basically, for one to be charged for the offence of rape, penetration must occur to constitute sexual intercourse. In other words, only a man has the ability to rape a woman as stated in the Penal Code. So, how exactly does the law punish a woman who carries out a sexual offence towards men or other women? Women may be guilty of sexual assault, but not rape Not all is at loss here, because the female harasser may still get into trouble if the victim makes a police report. Action may be taken under section 509 of the penal code: ""Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture...intending that such word or sound shall be heard, or that such gesture...shall be seen by such person...shall be punished with imprisonment for a term which may extend to five years or with fine or with both."" Basically, sexual assault is a crime where anyone can be charged for it, regardless of gender. Those who are guilty of the crime can be sentenced to a maximum of 5 years imprisonment or shall pay a fine or both. However, if you’ve been harassed at your workplace by a female colleague, there are additional laws available to protect you for sexual harassment. Section 2 of the Employment Act 1955 interprets sexual harassment, in the context of employment as: ""―sexual harassment means any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment;"" Sexual harassment is defined very widely and can be anything from a look, a word, a touch. Alex explained that the Act can be interpreted extensively as no gender was specified: “Section 2 of the [Employment] Act does not provide gender and merely speaks of unwanted conduct of a sexual nature in broad terms.” – Alex Netto, Anton & Chen. He further went on to explain that Section 81B of the Employment Act states that employers have a duty to investigate into any sexual harassment complaint. The employer is bound to investigate within 30 days from when the complaint was made. So, an investigation is compulsory and has to be done by your employer. The actions taken by your employer can range from firing the female offender, suspending her, giving her a change of department and so on. You can also consider suing the female harasser under tort of sexual harassment. Sexual harassment has recently been made a tort in Malaysia (read more about tort law here) so you would be able to bring a civil suit for it. [READ MORE: Sexual harassment is not a crime in Malaysia. So what can victims do?] But in the context of criminal law, there still isn’t much that can be done to charge women for rape or sexual assault... NGO’s are pushing for better laws on sexual crimes Although we might have sufficient laws on sexual harassment at workplaces and civil action is now possible under tort, there is still a grey area on whether or not women who commit sexual crimes can be charged for the crime. Alex went on to say: To take this down the criminal path, that would require an initiative from the office of the Attorney General to get the ball rolling on this. – Alex Netto, Anton & Chen. So for anything to happen, the Attorney General will probably need to make changes to the existing laws. There have been calls already made to amend laws on sexual crimes in Malaysia. NGO’s such as the Women’s Aid Organization (WAO) and the All Women’s Action Society (AWAM) are among the organizations seeking for a change in laws pertaining to sexual crimes. Now if you're the victim, here are some steps you should take to report the crime: File a police report which may bring criminal charges or a civil suit against the female harasser. If the harassment happened at your workplace, bring it up to your HR department. If no action is taken, or if the harasser is the owner of the company, forward the complaint to the Ministry of Human Resources."
"Why is Indira Gandhi suing the current IGP for something the ex-IGP failed to do? If you’re one to closely follow the news in Malaysia, you would most likely know who Indira Gandhi is. She made headlines when she fought for the custody of her children who were converted by her ex-husband without her permission. Indira won the case after a 9-year legal battle and it seemed as if the chapter had finally been closed. But just recently, Indira made the front page of newspapers again. While she had managed to get two of her three children back, the youngest daughter was still with her father. The whereabouts of the child and her father and unknown till today. So, just a few days ago, on 27 January 2020, Indira’s legal representative said that she was going to sue the Inspector General of Police, Tan Sri Abdul Hamid Bador for RM100 million. The reason given was that he still has not located her missing daughter after all these years and so, he has failed to fulfill his duties. However, the first IGP who was told to locate her daughter was Tan Sri Dato’ Sri Khalid Abu Bakar and not the current IGP, Tan Sri Abdul Hamid Bador. So, why was Tan Sri Abdul Hamid Bador being sued? The IGP had a court order to follow If you’ve been following this saga closely, you might remember that there have been THREE IGPs who have been in charge of finding the Indira Gandhi’s daughter. After Indira Gandhi was given custody of her three children in May 2014, the Ipoh High Court then ordered the police to search for the girl and return her to her mother. As mentioned earlier, the IGP was Tan Sri Dato’ Sri Khalid Abu Bakar. An important thing to note here is at this point, there was no specific order made to the IGP to find the girl. It was a general order to the police force. The following month, the Ipoh High Court ordered the police again to find the girl, and to give the court monthly reports until she was found. The months went by and there was still no trace of Indira Gandhi’s daughter. She then filed an application to compel the IGP to search for her daughter and arrest her ex-husband. It was at this point that an order was specifically made to the IGP himself. This order was granted in September 2014, and it’s known as a mandamus order. A mandamus order is basically an order to compel a public official (such as police officer), to properly fulfill their public duties. Despite the order being secured, the IGP didn’t want to comply with the order. The reason was, although Indira Gandhi had custody of her children, her ex-husband was challenging that in court. And this brought more complications because now the secular courts AND syariah courts were involved. Fast forward to 2017, a new IGP was appointed: Tan Sri Mohamad Fuzi Haron. And this new IGP had to take up what was left to him by his predecessor. Then in 2018, the final court of appeal once and for all decided that Indira Gandhi’s children should remain with her. But up to that point, there was still no sign of her youngest daughter. So again, the court compelled the IGP to follow the mandamus order to find her. But eventually, he too left, and the third IGP in this case, Tan Sri Abdul Hamid Bador took over. Since there were three IGPs in the case, why was only Tan Sri Abdul Hamid Bador being sued? She’s ‘suing’ the role of the IGP, not the person This might sound a bit illogical at first, but think of it this way: In order to sue someone, you need to prove that that person had caused you inconvenience or harm in some way. If Indira Gandhi was going to sue the IGP personally, he would have had to do something unlawful outside the capacity of his job as a police officer. But in this case, she is taking him to court because he allegedly failed to perform his duties as a police officer. But then, you might wonder why she is suing the IGP and not any other PDRM officer. The answer is pretty simple and it can be narrowed down to two main points. Firstly, when a new IGP takes over, he would naturally take on the responsibilities left by the previous IGP – including any unsolved cases. So, for our current IGP, finding Indira Gandhi’s daughter would now be one of his tasks, Secondly, the IGP is the head of the PDRM, and so he would be responsible for the police force. The mandamus order was directed at the IGP, and while he would not be able to locate Indira Gandhi’s daughter all by himself, it would fall under his responsibility to ensure that PDRM as a whole keeps searching for her. ‘Piercing the corporate veil’, a principle used in company law can help explain this a little better. This principle is usually applied when you sue a company that has gone bankrupt, but we can still use the logic behind it. Under this principle, the shareholders or key people of a company can be held directly responsible for the company’s actions. A company that had gone bankrupt will not be able to pay you when you sue them, but you can hold the main people of the company responsible and make them pay instead. PDRM isn’t a company that can go bankrupt, but the takeaway from the principle is this: If you can’t sue a whole organization, you can sue someone who represents the particular organization. And most of the time, they are the figureheads of the organization. You can still sue a police officer personally, but it won’t be easy The PDRM is an organization of its own, but what if you want to take action against a specific officer? There’s no rule against this, but suing a police officer personally is pretty difficult. In the middle of this article, we mentioned that to sue someone, you’ll have to prove that the person themselves did something unlawful to you. In the case of a PDRM officer, they must have done something unlawful out of the scope of their job as a police officer. But what if you wanted to sue a police officer because you felt he wasn’t doing his job efficiently? For example, you had an emergency and called the police, but they got to you pretty late. In this case, they didn’t do anything unlawful outside the scope of their role, but they didn’t manage to get to you soon enough. So, can you sue a police officer for causing you emotional distress by arriving late? The UK case of Michael v Chief Constable of South Wales Police [2015] says that you can’t. It IS the job of the police to get to you soon, and they do have a cutoff time by which they would try to reach you. But they don’t owe you a duty of care specifically. Meaning, they can’t prioritize your case over everyone else’s. If they needed to tend to another emergency on the way, they have the right to do that, and you can’t take legal action against them for not getting to you sooner. Of course, if you can prove that they deliberately took a detour and got to you very late, that’s a different story altogether. [READ MORE: Can you sue the PDRM if they respond too late to your emergency call?] Indira Gandhi’s lawsuit IS targetted at the IGP himself but we need to take note of two important things here. One, she can do this because there’s a court order which she feels he has not complied with, and two, she’s suing him in his capacity as head of the police force. The IGP himself commented that the Home Ministry would look after the lawsuit. The fact that this Ministry is handling it and not the IGP himself proves that this is not a regular lawsuit between two people. It shows that Indira Gandhi is not suing Tan Sri Abdul Hamid Bador as a person, but as the Inspector General of Malaysia."
"M'sia abolished the Fake News law in 2019, so how did a man get arrested for it? At the time of writing, there are 7 confirmed cases of the coronavirus in Malaysia. With the recent outbreak of this virus across the globe, there are many different news sources that are spreading fake news about this pandemic. You can basically say that the news about the virus is spreading faster than the virus itself. In fact, a man from Bangi was arrested for posting fake news about the virus via his Facebook account. The Malaysian Communications and Multimedia Commission (MCMC) released a press statement about the arrest, and how it’s illegal to spread false information on social media which can amount to more arrests. Now if your memory is better than a law student’s, you might be able to recall how the government repealed the Anti-Fake News Act sometime ago in 2019. If the Fake News Act has been removed, how are the authorities still arresting people for posting about the coronavirus? [READ THIS TO KNOW ABOUT THE ABOLISHED ACT: Here's how you may get in trouble with Malaysia's (upcoming) Fake News law] There are other laws that still apply Here’s a brief explanation on how the old Act worked. The Anti-Fake News Act basically acted as a preventive measure, to stop people from spreading misinformation to one another. But the definition of fake news can be really broad. Under the Act, fake news is defined as any information that has the potential to be digested (read, heard, or viewed) by the public. In other words, literally anything can be considered fake news if it’s published or displayed to the public. However, the Act was considered rather draconian to the public—which brought it to an end last year. But although the Act has been removed, we have sufficient laws to prevent false information from spreading. For context, we’ll be referring to the story of the Bangi man who was arrested. He’s been accused under 2 separate laws for posting misinformation on the coronavirus: 1. Section 505(b) of the Penal Code: “Whoever makes, publishes or circulates any statement, rumour or report...with intent to cause, or which is likely to cause, fear or alarm to the public...where by any person may be induced to commit an offence against the State or against the public tranquillity.” The Act basically prevents anyone from circulating false information which can cause unnecessary fear to the general public. Those who commit this crime can be imprisoned up to 2 years, fined or both. However, there is an exception to this law in the Penal Code: If you genuinely believed that the statement you’re publishing or circulating is true, and you do not have the intent to post something that’s fake news, you can use it as a defence to avoid being accused. 2. Section 233 of the Communications and Multimedia Act 1998 A person who— (a) by means of any network facilities or network service or applications service knowingly— (ii) initiates the transmission of, any comment, request, suggestion or other communication which is obscene, indecent, false...in character with intent to annoy, abuse, threaten or harass another person...” The CMA 1998 narrows the means of communications, specifically targeting the spreading of fake news via network/electronic devices. Sub-section (3) of this Section carries a fine not more than RM50,000.00 or jailterm for not more than 1 year or both. If the same person is caught again for spreading misinformation, there’s a fine of RM1,000.00 for everyday the offence is continued. So despite not having a Fake News Act to sentence someone for spreading false information, these laws are used by the authorities to prevent people from creating an even more alarming situation than what it is at present. So the next question is... How can you tell whether the news is real or fake? Fake news is a problem not just in Malaysia, but in other countries as well. Fake news could potentially create fear, misunderstanding, or even disrupt peace. So perhaps the best way to prevent fake news (or getting in legal trouble for it) is to self-regulate. We interviewed the Communications and Multimedia Content Forum of Malaysia (CMCF), Executive Director Mustaffa Fazil in our previous article, and he outlined two simple steps that anyone can do: Employ common sense and take a moment to consider your intentions and the possible consequences Fact check through Google or sites like Sebenarnya.my The best source of information on the virus right now is from the Health Ministry. You can always check their official site or the World Health Organization (WHO) for accurate information on the outbreak. So although the Fake News Act is not in use anymore, we have sufficient laws to prevent someone from hitting the Post or Share button on social media. [READ MORE: Is there freedom of speech in Malaysia if you can get arrested for Facebook posts?]"
"Mak ayah boleh kena saman kalau tak nak vaksin anak. Ini sebabnya [Click here for English version] Tak lama dulu, kita dah dikejutkan dengan kes polio di Sabah, iaitu kes yang pertama setelah 27 tahun kita bebas dari penyakit tu. Boleh dikatakan yang Malaysia dah bebas dari polio ni selama hampir 3 dekat sampailah rekod tu terbantut baru-baru ni. Dalam keadaan kita berdepan dengan masalah ni, banyak pula salah faham orang Malaysia tentang vaksin, sampaikan munculnya golongan yang dikenali sebagai anti-vaksin. Sebenarnya, ada beberapa anggapan tentang macam mana virus ni kembali – antaranya sebab dengan adanya orang anti-vaksin yang suka gunakan hujah agama ataupun ubat tradisional. Dan disebabkan dengan peningkatan bilangan golongan anti-vaksin ni, kanak-kanak di Malaysia pun semakin berisiko untuk dijangkiti penyakit jika tak divaksinkan. Apa kata kita bayangkan satu senario yang korang mungkin boleh hadapi (kalau korang ada anak) dari pandemik semasa ni: Anak korang berumur 4 tahun dan baru je masuk pra-sekolah beberapa minggu lepas. Beberapa hari kemudian, dia demam dan badan jadi lemah sangat. Pemeriksaan mengatakan yang dia menghidapi polio. Korang pun terkejut, sebab dia dah dapat 3 suntikan setakat ni. Tapi Dr beritahu – yang penyakit tu berjangkit, disebabkan dia tak dapat semua suntikannya lagi. Korang pun buat keputusan untuk siasat dan dapat tahu yang ada anak orang lain dalam pra-sekolah sama pun ada polio juga. Virus tu merebak sebab kanak-kanak tu tak dapat apa-apa suntikan vaksin sebelum ni. Ada 2 benda penting yang korang boleh bagi perhatian dalam situasi ni: Kesejahteraan dan pemulihan anak korang Saman orang tak vaksin anak diorang tu – yang membuatkan anak korang sakit Secara asasnya, setiap ibu bapa diberikan tanggungjawab untuk menjaga anak diorang. Walaupun begitu, dalam keadaan tertentu – ada masanya juga seseorang tu boleh disaman sebab tak vaksin anak diorang. Perkara ni sebenarnya tak mustahil, tapi datang dengan beberapa syarat tertentu yang korang kena dipenuhi. Sebelum kita nak bincang lebih lanjut lagi tentang hal ni, kita kena pecahkan dulu apa yang patut, antaranya… Tak ada undang-undang yang wajibkan vaksin kepada kanak-kanak Apa yang kita semua kena tahu dulu, sebenarnya tak ada undang-undang yang mewajibkan pemberian vaksin kepada kanak-kanak. Tapi ada juga desakan dari pihak tertentu supaya diwajibkan vaksin ni kepada setiap kanak-kanak yang nak masuk sekolah. Secara asasnya, ibu bapa boleh menolak anak diorang dari terima vaksin, tanpa ada tindakan undang-undang terhadap diorang. Malah, tak ada juga sekatan untuk anak-anak yang tak divaksinkan dari pergi ke sekolah. Tapi, tindakan tu mungkin melanggar Akta Kanak-Kanak 2001, kerana Seksyen 31 menyatakan: “Mana-mana orang… yang mempunyai pemeliharaan seseorang kanak-kanak – (a) yang menganiayai, mengabaikan, membuang atau mendedahkan kanak-kanak… yang mungkin akan menyebabkannya mengalami kecederaan fizikal atau emosi atau yang menyebabkan...dianiayai, diabaikan, dibuang atau didedahkan… melakukan suatu kesalahan… boleh didenda tidak melebihi dua puluh ribu ringgit atau dipenjarakan selama tempoh tidak melebihi sepuluh tahun atau kedua-duanya Akta ini pada dasarnya menyatakan – kalau seseorang tu bertanggungjawab kepada seseorang kanak-kanak, tapi mendedahkannya dengan bahaya, dia boleh didenda sehingga RM20,000, dipenjarakan hingga 10 tahun atau kedua-duanya. Bagaimanapun, ada juga hujah yang kata peruntukan ni agak tak berapa kena kalau nak dibandingkan dalam isu vaksin. Sebabnya, Akta ni tak tetapkan vaksin dan tak ada kes yang dah dibawa ke mahkamah setakat ni. Tapi, kalau korang memang ibu bapa yang menjunjung undang-undang dan anak korang secara tiba-tiba diserang penyakit yang boleh dicegah oleh vaksin. Korang sebenarnya masih boleh mempertimbangkan saman terhadap ibu bapa yang tak mevaksinkan anak diorang tu – sebab kerana dioranglah anak korang pun berjangkit dan sakit. Dalam keadaan macam tu, korang boleh failkan tuntutan sivil di bawah tort kecuaian, atau secara ringkasnya – korang boleh tuntut duit dari ibu bapa yang anti-vaksin tu kalau anak korang jatuh sakit dari penyakit tu juga. [BACA LAGI: What is a tort?] Anda boleh saman orang anti-vaksin yang sebabkan anak anda sakit Mungkin kita boleh mula dulu dengan terangkan macam mana korang boleh saman orang anti-vaksin ni. Pertamanya, kita kena buat perbezaan antara tuntutan jenayah dan sivil. Di bawah undang-undang jenayah, tujuannya adalah menghukum pesalah dengan mengenakan hukuman (yang ditetapkan) untuk kesalahannya. Tapi dalam undang-undang sivil, korang boleh saman seseorang yang buat kesalahan dan diberikan pampasan atas kesalahannya tu. [BACA LAGI: What’s the difference between getting sued and getting charged in Malaysia?] Jadi dalam kes macam ni, korang boleh failkan saman terhadap orang anti-vaksin kerana menyebabkan anak korang sakit – dengan membawa tuntutan sivil dalam tort. Tapi untuk saman seseorang di bawah tort, korang mesti tunjukkan adanya perbuatan kegagalan untuk bertindak oleh orang anti-vaksin tu. Di mana, ia dah menyebabkan kerosakan/kecederaan terhadap korang atau anak. Dalam kes ni, orang anti-vaksin tu boleh dikatakan gagal bertindak (mevaksinkan anaknya) yang menyebabkan anak korang sakit. Ini dia kenyataan daripada seorang peguam di MalayMail yang mungkin menjelaskan lagi perkara ni: ""Jika ibu bapa gagal untuk mendedahkan maklumat bahawa anak mereka tidak divaksinkan dan berisiko untuk berjangkit atau menjangkitkan penyakit yang boleh dicegah oleh vaksin, dan juga gagal melakukan langkah-langkah untuk mengelakkan orang lain yang berisiko terkena jangkitan, mereka sepatutnya dianggap melanggar kewajiban mereka terhadap yang dijangkiti oleh kanak-kanak yang tidak divaksin "" – Ramesh Sivakumar to MalayMail. Terdapat kewajipan ‘duty of care’ (unsur di bawah Tort kecuaian) untuk ibu bapa memberikan vaksin kepada anak diorang. Jika ibu bapa gagal berbuat demikian, diorang mungkin melanggar tanggungjawab diorang untuk kedua-duanya, sama ada kepada anak diorang dan anak-anak orang lain. [BACA LAGI: What is negligence and how does it work?] Saman tu mungkin boleh, tapi sukar Sekarang ni, kita dah tahu yang sebenarnya kita boleh saman orang anti-vaksin ni kerana pengabaian. Tapi dalam masa sama, korang juga kena tahu yang bukannya mudah nak buktikan hal ni. Sebabnya, tak ada kes atau kes-kes sebegini pernah dibicarakan di Malaysia. Ini kerana, segala elemen pengabaian mesti dibuktikan untuk membolehkan kita menyaman ibu bapa yang anti-vaksin ni. Ini dia apa yang pensyarah kanan kata kepada MalayMail: “… Anda mestilah membuktikan secara spesifik kanak-kanak yang tidak divaksin itu menyebabkan anak anda sakit. Jika terdapat kemungkinan bahawa banyak kanak-kanak tidak divaksinkan dalam kes ini, maka menjadi sukar untuk dibuktikan... Ini mungkin mengakibatkan kerosakan yang anda alami dianggap terlalu jauh - yang bermaksud bahawa kerosakan itu tidak dapat diramalkan... bahawa keputusan ibu bapa tertentu untuk tidak memberi vaksin... ""- Daniel Abishegam to MalayMail. Dalam terma undang-undang, elemen unsur penyebab perlu dibuktikan, untuk menunjukkan bahawa kecuaian ibu bapa anti-vaksin tu memberi kesan kepada anak korang. Penyebabnya terbukti apabila terdapat hubungan yang kuat antara tindakan ibu bapa anti-vaksin yang tak mevaksinkan anaknya, menyebabkan anak korang menghidapi penyakit. Sekiranya hal ini terbukti, korang ada peluang untuk menang tuntutan mahkamah terhadap ibu bapa anti-vaksin tu. Untuk maklumat lanjut, ini dia artikel pasal fakta/mitos vaksin di Malaysia."
"In Malaysia, can you be punished for breaking a law you didn't know exists? Picture this: you’re out with your friends having a cigarette. Suddenly, a PDRM officer comes up to you telling you that you’ve committed an offence for smoking in a non-smoking zone. You’re then slapped with a hefty fine and you’re asked to appear in court in two weeks. You’re shocked, because you didn’t even know that it was a non-smoking zone and you had broken the law. You try and reason with the abang polis, but he tells you that an offence is an offence, and you’ll still have to appear in court. [READ MORE: What are your rights if you get arrested by the PDRM?] You then wonder if you can explain in court that it was a genuine mistake. So, the question is, can you get away with an offence or crime just because you didn’t know that it’s illegal? Ignorance ISN’T bliss The saying goes “ignorance is bliss” — what you don’t know can’t hurt you. But this doesn’t apply to the law. There’s a legal principle which says that because you didn’t know something was wrong, doesn’t mean you can get away with it. Let’s just call this the ‘ignorance of the law is no excuse’ principle. And this isn’t something new. It has actually been around since pretty much forever. It’s even been used during the heights of the Roman Empire in the 6th century BC! And they had their own term for it: ignorantia juris non excusat. Even without a translation, you can pretty much understand what it means – ignorance of a certain law isn’t an excuse to get away from it. It might seem unfair, especially if someone had zero intentions of doing something illegal. Like in the scenario above, you didn’t mean to smoke in a non-smoking zone, you just didn’t realise that you were in the wrong place. But there’s very sound reasoning as to why this principle is needed. If every single person used it as an excuse when they break the law, there would be two major problems. One, it would be misused and people would just get away scot-free. Two, it would be almost impossible to prove that someone didn’t know they were breaking the law, as you can’t prove someone’s thoughts or intentions. Another thing to note about this principle is that it applies to both crimes and minor civil offences. Basically, the weight of the offence doesn’t matter when it comes to this principle. Even if you had committed a very light offence and the law regarding it is obscure, the ‘ignorance of the law is no excuse’ principle won’t tip the scales in your favour. Foreigners are also not exempted As a Malaysian, you know that you cannot avoid paying a saman, just because you didn’t know you couldn’t park in that spot. So, you’re expected to know at least the basics of our country’s laws. But what if a tourist unknowingly broke a law during his stay here? At first glance, it might seem that they wouldn’t be penalised because...well, how are they supposed to know the laws of another country? Interestingly, the ‘ignorance of the law is no excuse’ principle applies to them as well. The case of Derek Victor Cawton & Another v Fatimah bt. Mohd Hashim [2015] confirms this principle. In that case, a British-Swiss couple had rented out a property in Kuantan. Unknown to them, the property was built on reserved land, which meant that the it could not be rented out to anyone, and doing so was basically a breach of the law. The couple had been dutifully paying their rent, but after some time the owner asked them to leave. When the case went to the High Court of Kuantan, the couple’s argument was that they had no idea that the home could not be rented out to them, and that they weren’t breaking the law since they had stayed there for a very short period. However, Judge Abdul Wahab Patail dismissed their argument and said that ignorance of the law, even by a foreigner, could not be accepted as an excuse. It is a basic principle of the English common law inherited here that ignorance of the law is not a defence or excuse be it for locals or foreigners, and of equity that the party seeking equity had done due diligence. Basically, foreigners visiting the country are also bound by the same laws as citizens, and they cannot say that they didn’t know the law. If you’re seeking equity (justice), you need to take reasonable steps to avoid breaking the law. In this case, the couple could have gone to the Land Office to find out if the home could be rented out to them or not. Now, this does sound like a lot of work, because it means we have to be super vigilant and find out if there are laws pertaining to everything we do. And that’s just impossible, right? Sometimes it can be an excuse The law always has a grey area where exceptions can be made. Sometimes, people are innocent victims of someone else’s mistake, and so the law gives room for a judge to bend the law a little when needed. There isn’t a hard and fast rule on what can be considered an exception to the rule, but it can be narrowed down to these: that there was no way you could have known about the law, OR someone else had made a mistake as to the law and you didn’t know about this mistake, OR the law was not made known enough, that you or anyone else could never have known about it It’s quite rare to see cases where the judge DID accept ignorance of the law as a valid excuse, but we managed to dig out two of them. Lim Chin Aik v Public Prosecutor [1962] is a Singaporean case, but since it was heard by the Privy Council, its judgment can be applied to Malaysian law as the Privy Council heard appeals from Commonwealth countries. Mr. Lim, the defendant, was an illegal immigrant in Singapore. Under the Immigration Ordinance of 1952, the government was required to issue a prohibition order against him to prevent him from remaining in the country. However, the government had not brought this prohibition order to Mr. Lim’s attention, and it was proven that they had not made any effort to let him know about it. The judge, Lord Evershed, said that the ‘ignorance of the law is no excuse’ principle could NOT apply in this case because nothing was done to allow Mr. Lim to find out about this prohibition order against him. In another case, Lau Cher Hian v Collector of Land Revenue Muar [1971], the State Authority wanted to take back the land that Ms. Lau’s home was built on. If she wanted to make an objection to this, she had 6 weeks from the time she was notified by the state authority. She did not know about the time limitation and so when she finally found out about it, she applied for a time extension. She lost the case when it first went to court, but the judge agreed with her when she appealed the case. The judge stated that the 6 week time limitation should have been stated clearly in the application form for land acquisitions by the government. This was not a case of ""indifference"" or an applicant sleeping upon his rights. The appellant had done all that she was advised by the notice to do. -Chief Justice Ong While she didn’t know about the law, she had done what whatever was required of her in the form of the land acquisition. It was not her fault that the time limitation was not printed on the form, and so she could not be said to be ignorant of the law. Make an effort to know the law It might be impossible for us to familiarise ourselves with every single law that the country has. We should at least know the basics, like don’t park in a towing zone, or don’t beat a red light. But, when it comes to more serious issues like some of the cases seen above, we might not be able to know every single law, especially when they are complex. In cases like this, it’s important to seek legal advice from your lawyer and to go to the relevant authorities before taking up a legal obligation like renting a house or buying a piece of land. If you do end up in trouble for unknowingly breaking the law, your lawyer will have to come up with a better excuse than just saying that you didn’t know it was wrong. You just might be able to get away with it, but ONLY if you can prove that there’s no way you or anyone else could have known of the law."
"In Malaysia, can you settle your lawsuit by having a trial by combat? In court, we expect things to be handled with words and wits, two parties pitting their intellect against each other. But what if instead of words, they decide to let their fists do the talking? Believe it or not, this scenario isn’t completely unheard of. Fighting to settle a dispute, or trial by combat, used to be a very real thing a few hundred years ago. Both parties will have a one time duel, and they will either fight themselves or nominate a champion to fight for their behalf. The last recorded case was from 1818 in the United Kingdom, in the case of Ashford vs Thornton. Thornton was accused of murder, and he decided to challenge his accuser to a trial by battle to settle it. It wasn’t a very bloody fight – his accuser didn’t show up, so Thornton won by default. However, the law was immediately buried next year, when the British parliament abolished it. But early this year, a man from the US attempted to resurrect the tradition — he challenged his wife to a trial by combat to settle their divorce dispute, but allowing her to nominate a champion in her place. The judge for the case has not decided whether to allow the proposal or not. So, is this actually allowed in Malaysia or do our laws say otherwise on settling things with your fists, and other pointy objects? Only if your court case is about who’s the best MMA fighter We decided to nominate a champion ask a lawyer, Fahri Azzat, on whether this is a legit option to settle legal disputes in Malaysia. So...can you? No. In fact, fighting is an offence unless it is a recognised sport like boxing or UFC. – Fahri Azzat, lawyer, answering through an email interview with ASKLEGAL. Sadly, a trial by combat isn’t an option (yet) in Malaysia. And the act of fighting by itself is a crime here. If two guys fight in a public place, then they are committing the offence of affray under Section 159 and Section 160 of the Penal Code. This is punishable with imprisonment of up to 6 months, or fine of RM1,000, or both. If you thought the punishment for fighting is heavy, bringing a weapon to a fist fight can land you in even more trouble than usual. This is because we aren’t allowed to carry weapons in a public area. Weapons are prohibited under the Corrosive and Explosive Substance and Offensive Weapons Act 1958. Under Section 6 of the Act: (1) Any person who in any public road or place carries or has in his possession...any offensive weapon otherwise than with lawful authority or for a lawful purpose shall be guilty of an offence There are only three reasons you’re allowed to carry a weapon in public: if you’re a policeman, a member of the armed forces, or you’re wearing it as part of a ceremonial dress. If you’re found carrying one without a good reason, you can be jailed between 5-10 years. And the definition of what is considered an ‘offensive weapon’ is really wide. According to Fahri: It is defined as including any instrument which if used as a weapon of offences is likely to cause hurt. That can potentially include anything, even a sharpened pencil, theoretically. – Fahri But what if both parties agree to carry it on, anyway? Would it be accepted if it’s part of their contract? [READ MORE: Can you legally carry weapons for self-defence in Malaysia?] Even if both parties agree, it’s still illegal What if both parties decide to solve their issue through a fight anyway? Say, they made a contract and said that they both have agreed to it, and the victor will win the case. Wouldn’t that just be similar to a sporting arrangement? Not so, according to Fahri. If they insist on battling out then I think any agreement they enter into agreeing to fight as a means of dispute resolution is potentially liable to be invalidated as being against public policy under the Contracts Act 1950, specifically under section 24(e). – Fahri What this means is if your contract included an agreement to fight the other party, as a way to solve your issues, your contract can be considered invalid. This is because under the Contracts Act, you can’t agree to do anything that is unlawful or against public policy and social norms. If it’s in the contract, then the contract is considered invalid. Even worse, if you still decide to carry out the fight, AND someone gets killed, you can be charged, even IF they agreed in the contract that death is an acceptable outcome. Then it is potentially an offence of murder under Section 302 of the Penal Code, or culpable homicide not amounting to murder under Section 304, or perhaps death by negligence under section 304A. – Fahri In short: don’t. Just. Don’t. But don’t worry. If you’re inclined to settle matters outside court, you still have other options. If it’s not violent, then it’s okay But just because you can’t fight things out, it doesn’t mean you can’t settle things through a competition. According to Fahri: Well, there are certainly other ways - arbitration or mediation aside from a civil suit in court. But there's no violence in that is there? If the gentlemen want to resolve it by winning a (competition) then they should enter into a contract to preserve that in an agreement. – Fahri So you can have a competition of sorts to decide your issue, as long as it’s not violent. [READ MORE: 5 ways to ""sue"" someone in Malaysia without going to court] But it’s fun to imagine a world where trials by combat is an option, especially if your lawyer can fight on your behalf. We asked Fahri what he thought it would look like, and here’s what he had to say. Except for a small band of very fit and healthy lawyers, I think many would immediately suffer because of lack of exercise, fitness and health. I imagine a great number of lawyers would be hurt and even suffer death or a fate worse than that. The medical business will certainly have a field day. Doctors will begin to love the legal profession and lawyers more. The fit and healthy lawyers skilled in martial arts or weaponry would dominate and earn loads of money. The skill of a lawyer will not lie in his mouth or mind anymore but in their hardened, muscled and skillful bodies which look aesthetically pleasing in promotional materials. – Fahri"
"Di Malaysia, anda boleh kena denda kalau pelihara haiwan ternakan di belakang rumah [Click here for English version] Memelihara haiwan dah jadi satu perkara yang cukup biasa di Malaysia ni. Paling kurang pun, mungkin korang atau jiran ada seekor haiwan peliharaan. Dengar salakan anjing dan meow kucing tu boleh dikatakan biasa je di kawasan perumahan. Tapi macam mana pula kalau dalam sesetengah keadaan, korang dengar bunyi ayam berkokok atau lembu ‘mengembu’. Ya, apa yang kitorang nak bincangkan kali ni adalah pasal haiwan macam lembu dan ayam yang sepatutnya ada di ladang dan bukannya belakang rumah korang. Sebenarnya, ada ayam di belakang rumah bukan satu benda pelik di Malaysia ni, dan kita mungkin rasa tak kisah sangat la – sebab ayam ni tak buat masalah sangat. Tapi nak atau tak, kita tak dapat juga lari dari tertanya-tanya – sama ada boleh ke tak buat macam tu? Persoalannya, boleh ke kita bela haiwan ternakan di belakang rumah, dan sah ke perbuatan tu di sisi undang-undang? Ia bergantung kepada majlis tempatan anda Sebenarnya, tak ada peruntukan undang-undang sesuai yang menyentuh isu menyimpan haiwan di rumah ni. Apa yang kitorang dapat cuma bergantung kepada undang-undang kecil majlis tempatan. Sesuai dengan namanya, undang-undang kecil ni adalah undang-undang yang digubal oleh majlis tempatan dan ia cuma terpakai di kawasan majlis tu je. Jadinya, sama ada untuk tahu tindakan ni sah atau tak, korang kenalah periksa dengan majlis tempatan korang seperti DBKL (Dewan Bandaraya Kuala Lumpur), MBPJ (Majlis Bandaraya Petaling Jaya) atau sebagainya bergantung kepada kawasan tempat korang tinggal. Jadinya, kitorang pun hubungi DBKL dan ini apa yang diorang kata: “Tak ada undang-undang tentang (binatang) ni sebenarnya. Kita guna undang-undang kacau-ganggu (nuisance) di bawah Akta Kerajaan Tempatan.” – Kata jurucakap DBKL kepada ASKLEGAL. Dari jawapan ni, kita boleh dapat tahu yang walaupun adanya majlis tempatan, masih lagi tak ada undang-undang spesifik tentang isu ni. Bagaimanapun, dikatakan yang memelihara haiwan ternak ni boleh jadi sebagai kacau-ganggu, dan pemiliknya boleh dikenakan tindakan di bawah Akta Kerajaan Tempatan 1976. Akta ni menyatakan kacau-ganggu sebagai: ""kacau ganggu"" ertinya sesuatu perbuatan, peninggalan atau benda yang menyebabkan atau mungkin menyebabkan bencana, kegusaran, kesalahan, kerosakan, bahaya atau kecacatan kepada deria penglihatan, bau atau pendengaran atau yang membencanakan atau berbahaya atau yang mungkin membencanakan atau berbahaya kepada kesihatan atau harta atau yang menjejas keselamatan atau hak penduduk umumnya. Makanya di sini, kalau haiwan berkenaan mula menjadi kacau-ganggu, untuk permulaannya pegawai majlis tempatan akan beri amaran kepada pemilik haiwan tu. Tapi, kalau pemilik tak mematuhi amaran tu, pemilik boleh didenda sehingga RM1,000 dan dipenjara sehingga tak melebihi enam bulan. Tapi jurucakap tu menambah, ini tak bermakna yang korang boleh simpan haiwan ternak di belakang rumah, disebabkan undang-undang tak nyatakannya secara spesifik. Walaupun begitu, 1 atau 2 haiwan pun boleh dikira sebagai kacau-ganggu, jadinya DBKL tak galakkan korang simpan haiwan ternak ni. Sebelum tu, kitorang nak beritahu korang juga yang sebenarnya ada satu undang-undang di KL yang diperuntukkan untuk lembu dan kerbau, yang dipanggil sebagai Undang-Undang Kechil (Lembu-Kerbau). Bagaimanapun, diorang kata undang-undang ni dah lama tak digunakan dan akan dimansuhkan tak lama lagi. Sekali lagi kitorang nak tegaskan, contoh di atas ni cuma terpakai di Kuala Lumpur je. Jadinya, kalau korang nak tahu sama ada boleh ternak ayam atau lembu di belakang rumah, hubungilah majlis tempatan korang untuk maklumat lanjut. Anda juga tak boleh buat kandang besar untuk pelihara haiwan-haiwan ni Untuk nak elakkan haiwan tadi dari jadi kacau-ganggu, korang boleh je bina kandang besar belakang rumah kan? Dengan mengharapkan haiwan-haiwan ni tak akan mengganggu jiran-jiran. Tapi sebenarnya, idea ni bukanlah baik sangat sebab dengan membina kandang, korang boleh dikenakan tindakan di bawah undang-undang. Sebabnya, di bawah Akta Perancangan Bandar dan Desa 1976 dah dinyatakan yang korang tak boleh buat aktiviti pertanian di kawasan kediaman, dan hal ni termasuklah ""pembiakan dan pemeliharaan ternakan."" Jadinya di sini, korang dah sah-sah tak boleh bina kandang di rumah korang. Kenapa pula? Bila sesuatu bandar dirancang, ada kawasan yang dah ditetapkan untuk kediaman, sementara ada juga kawasan untuk aktiviti industri dan pertanian. Maknanya di sini, korang tak bolehlah bina apartmen dalam kawasan industri, dan kes ni – korang tak boleh bina kandang di belakang kawasan rumah. Di bawah Akta Perancangan Bandar dan Desa 1976 dinyatakan: 18 (1) Tiada seorang pun boleh menggunakan atau membenarkan digunakan mana-mana tanah atau bangunan melainkan menurut rancangan tempatan. Dan ditegaskan lagi sampai korang boleh didenda, dibawah Seksyen 26: (1) Seseorang yang… (a) menggunakan atau membenarkan untuk digunakan mana-mana tanah atau bangunan yang berlanggaran dengan seksyen 18… melakukan suatu kesalahan dan boleh, apabila disabitkan, didenda tidak melebihi lima ratus ribu ringgit atau dipenjarakan selama tempoh tidak melebihi dua tahun atau kedua-duanya… Ha nampak tak kesannya? Makanya, lebih baik korang tak buat kesalahan ni. Senang-senang je kena denda sampai RM500,000.00 dan kena penjara sebab bela ayam je. Tapi, anda masih boleh simpan haiwan ni sementara waktu untuk tujuan keagamaan Macam mana kalau simpan haiwan ni untuk sementara waktu je? Contohnya masa Hari Raya Haji, ada sesetengah keluarga akan simpan lembu atau kambing di halaman rumah diorang untuk ibadah korban. Boleh ke? “Yang tu kena minta permit dari DVS (Jabatan Perkhidmatan Veterinar)” – Kata jutucakap DBKL Oleh itu, dalam keadaan tertentu memang dibenarkan untuk haiwan ternak ni disimpan di kawasan rumah dan dikorbankan – selagi mana korang dapat kebenaran dari DVS. Tapi setelah kita bercerita panjang tentang isu ni, kenapa kadang-kadang tu kita masih boleh nampak ayam berkeliaran di kawasan belakang rumah? Kemungkinan besar sebabnya kerana kurangnya penguatkuasaan ataupun jiran-jiran tak kisah sangat atau rasa terganggu dengan isu ni. Tapi kalau ayam tu mula masuk ke halaman rumah korang dan buat kerosakan – adalah lebih baik untuk korang hubungi majlis tempatan untuk selesaikan isu ni."
"Don't know your rights with the PDRM? Here's a cheat sheet to download If you’ve read any of our articles on police roadblocks, arrest, checking – anything related to the interaction between the public and the PDRM, really – you would have come across the term “Red Book”. The Red Book is essentially a cheat sheet containing all your basic rights as a Malaysian citizen, when interacting with the boys in blue. It was created by a lawyers group known as TANGKAP (Tindakan Anti Penyalahgunaan Kuasa Polis) and most commonly available as a download link from The Malaysian Bar’s website. As in the lawyers association, not the place to get a stiff drink. We’ve had several readers inform us that the link no longer works, so we’ve uploaded our copy which you can download… at least until it’s back up on the Malaysian Bar’s site. Oh yes, and it’s free and meant to be shared as widely as possible. Download the Red Book here (hosted on Google Drive)"
"5 reasons divorced parents may lose child custody in Malaysia [Note: This article applies only to non-Muslim divorces. Child custody for Muslims will be handled by the Syariah court] Divorce is an emotionally-draining process that no one ever wants to go through, and it’s not a rarity in Malaysia. In 2018 alone, there were 10,087 divorce cases between non-Muslim couples in Malaysia. And during the divorce proceedings, arguments can heat up when deciding who gets what from the marriage, and things just get messier when children come into the picture. But unlike property, which can be split 50/50, child custody is not just about being fair to the parents—the child has to be considered too. [READ MORE: How do Malaysian courts decide which parent gets child custody after a divorce?] In one of our previous articles, we gave an overview of child custody. Now to dive deeper into this topic, we’ll look into 5 reasons why one parent may not get child custody after a divorce. 1. If the child doesn’t want that parent Believe it or not, children can choose who to live with. This is because Section 88(2) of the Law Reform (Marriage and Divorce) Act 1976 prioritises a child’s needs above everything else. “In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child...” However, the children must be old enough to choose which parent they want to follow, as how Section 88(2)(b) of the Law Reform (Marriage and Divorce) Act 1976 puts it: “...the court shall have regard...(b) to the wishes of the child, where he or she is of an age to express an independent opinion.” How old is old enough? There isn’t a fixed age for this because the important thing is that the child can decide independently. This means that they must choose which parent to follow without being influenced by any outside party such as a family member. The case of Yong May Inn v Sia Kuan Seng shows how influence can make a parent lose the child. In this case, the children were three girls aged 12, 10 and 8, and they chose their father because their paternal family members taught them to hate their mother. Because of this, the judge decided that they were influenced to choose their father, and the girls were given to their mother instead. So, a child can choose, as long as they are not influenced by any family members. 2. If the parent sleeps with a married person Picture a situation where Ah Chong and Barbie have a child, and they subsequently divorce. After that, Ah Chong starts having an affair with Cindy who is still married. In this situation, Ah Chong MIGHT lose child custody. We say “MIGHT” because, truth be told, there is no fixed approach for this situation and judges decide this issue on a case-by-case basis. You get custody In the case of Goh Kim Hwa v Khoo Swee Huah, the father, who was staying with his mistress, was given custody over his son because: “...Gary, the eldest, without any hesitation, chose to be with the [father] as he considers that his future lies with him and he is content to keep the present arrangement...” This shows that despite the mistress’s presence, the fact that Gary chose to be with his father was a good enough reason for the court to allow the father keep him. You don’t get custody However, there are times when these parents lose child custody. One such situation is seen in the case of Wong Chen Foh v Lo Yu Kyau, where the mother, who was staying with a married man, could not keep her children because the judge said: “...in the interest of the infants they should be removed from their present undesirable and unsatisfactory environment.” Clearly, there are times when judges will decide that such situations are not conducive for the child. So, a parent can keep the children ONLY if the judge decides that the children’s interests is best protected by this parent. 3. If the children gets step-siblings or half-siblings The story of Cinderella may be closer to reality than you think, and judges take extra precaution to ensure that the children of divorced parents are not neglected by their stepparents as how Cinderella was. So if the parent remarries someone who already has a child, or gives birth to a new child from this second marriage, he might not be able to keep any children from the first marriage. To put this into context, let’s use the case of Manickam v Intherahnee to explain. Here, the father remarried and had a child with his new wife. Then, his son from his first marriage was given to his ex-wife because the judge said: “...care and attention of the natural mother can be reasonably expected to be superior to that of a step-mother, particularly one who has a child of her own and with every prospect of additions to the family.” Since a child’s welfare is the most important factor to consider, their feelings towards their stepparents and step-siblings is not taken lightly. And to ensure that sufficient care and attention is still showered over them even after the divorce, a half-sibling from the new marriage will be the reason this newly-married parent will lose custody. 4. Young girls are normally given to their mother Some readers might have instinctively known this, but here’s a case to confirm that. In Sivajothi a/p K Suppiah v Kunathasan a/l Chelliah, all three daughters (aged 4, 6 and 9) were given to their mother because the judge said: “...(a) the children being three young girls of tender age require the personal and intimate care of the mother as they grow up; (b) matters relating to puberty, problems relating to menstruation, physical, psychological and emotional changes can best be attended to by the mother and not by the father; (c) the mother's touch and physical proximity in time of illness; (d) there is no substitute for the natural love and affection of the mother...” Judges are more inclined to agree that there are certain things that a mother can give her daughters, which a father cannot. From a mother’s familiarity with female puberty to her personal touch in a young girl’s tough times, it is very often the case that a mother is the more suitable parent for her daughters. 5. If GRANDPARENTS are of a different religion In cases where both parents are dead, grandparents would be given child custody. We know that this isn’t choosing between parents per se but it is still a fight to keep the children so we decided to include it in this list. This scenario happened in the case of S Thaiyalnayagam v G M Kodaguda. Here, the Christian maternal grandmother and the Hindu paternal grandmother fought for child custody after the children’s parents died in an accident. The judge gave custody of the children to the Christian grandmother because they were brought up as Christians before their parents’ death. As sensitive as the issue is, having the same religion as the child may be the reason why one grandparent is more suitable than the other. The tapao note: The question of who the children should live with is a very delicate issue because a wrong decision can adversely affect their mental, emotional and psychological growth. So everything that will affect them will be considered and decided on a case-by-case basis in court to secure their best interests. [This article was written by referring to ‘Resolving Child Custody Disputes: The Law & Practice In Malaysia (2012)’ by Dr Mehrun Siraj]"
"5 things Malaysians must know before renting a space at shopping malls It’s the weekend. You’re out window shopping at a pretty popular mall, when you see a notice from a distance— “CHEAP SHOPLOT FOR RENT”. The signs are all there—this is your calling to finally start your own retail business! You look around and make a rough estimation on the number of people who shop in that mall during the weekday. You notice the mall is frequently visited by many customers, which makes it a great place to open up your very own clothing boutique. Without further hesitation, you head to the manager and ask for further info on renting a lot in the mall. Fast forward one month, you’re a proud owner of a new boutique in the mall. But your hopes and dreams almost popped, when you received a letter from management, asking you to make ADDITIONAL payments for renovation works done to your boutique. If you’re looking into renting space in a Malaysian mall, this article is specifically written for you. Starting a business would depend on numerous things (read this article to know which business is best for you)—but when it comes to setting up a business in a mall, there are several regulations and requirements you need to comply with first. So to make your life (and your dreams) turn into reality, here are 5 things you should know before opening a new business at a Malaysian mall. 1. Rent is calculated based on your monthly sales Here’s something you need to take note of first: Renting a mall space isn’t the same as renting office spaces or houses in Malaysia. One of the first things you’d have to do if you’re planning to rent a mall space, is to sign a contract/agreement with the mall management (a.k.a the landlord). This establishes a landlord-tenant relationship between you and the mall management. There are several things that will be laid down in the agreement—some include the monthly rent, opening hours of the mall and termination clauses (all which will be covered in this article).So when it comes to rates of rental charges in a mall, mall managements set rates according to certain factors such as, the location of the mall, size of the mall space and traffic flow of customers—to mention some. Rental rates are normally calculated based on monthly turnover rates (profits made). The rates are either calculated based on the percentage of the tenant’s gross turnover or this formula below: Base rent + Service charges + Promotion charges + % (e.g. 1%) of gross sales = Rental rates In non-financial terms, the monthly rental rate for mall spaces will depend on the monthly profits made (sales), any promotions carried out, the services offered and the minimum rent agreed by both parties. The mall management can also have access to the financial records of the tenants (ie: the receipts, invoices and audit reports). Now what happens if you don’t make profits because your outlet was closed? Well here’s some news: You can’t close your outlet, unless the mall management allows you to do so... 2. You might have to open your outlet everyday If you’re a frequent mall “visitor” aka kaki lepak, you’d notice how most of the shops in the mall (including the anchor tenant), open at the same time. So here’s the thing, tenants of the outlets in a mall are expected to operate their outlet according to the business hours set by the mall management. Most major malls, particularly in the Klang Valley are open 7 days a week from 10am to 10pm—including public holidays. So if a tenant does not follow the regulations set by the mall management, he will have to pay damages (monetary compensation) for breaking what’s been stated in the contract. [READ MORE: 5 basic things you should always do when signing contracts in Malaysia] 3. Tenants must make a deposit for renovation works Whether you decide to open a boutique or a restaurant—you’d definitely need to do some fit-out works to start your business. Apart from forking out money to pay contractors and buy the necessary equipment, there’s another party that you will be required to pay, too. Assuming that you made the right guess: It’s the mall management. It’s common for new tenants to modify and renovate the mall space. But this is usually done on a few conditions from the management. The new tenant would have to make a renovation deposit to the mall management and the revamping must be done within a specific time. Once the renovation is completed, the management will refund the deposit to the tenant. But if there are any penalties for the tenant, some mall managements deduct the amount from the tenant’s deposit. Here’s a clause we found that states as such: “Owner/Tenant shall pay to the Management the below mentioned deposit and abide to the following terms and conditions… i. Deposit Deductible for any sum of Outstanding Fees or Penalties - The Management reserves the right to deduct any sum from the fit out & renovation or move in/move out deposit collected to cover any outstanding fees or penalties...”—Jaya One’s Fit Out and Renovation Guide. Sometimes things may not always go as planned—Your contractor might need more time or you need to make some additional fittings which will prolong the completion on your outlet. In circumstances like this, there is a possibility for the management to give you penalties—unless you negotiate the clauses of your contract to avoid losses. [READ MORE: What can you do if your landlord doesn't return your deposit, in Malaysia?] 4. You can’t change the name of the outlet without permission One of the few things you’d need to think about when renting a mall space, is the name of the outlet. Generally, you’d need to check with Companies Commision Malaysia (SSM) first, to see if the name you chose for your company is available or not. SSM will then determine if the name is suitable, as per the rules under Section 26 of Companies Act 2016. The proposed name will be approved by the SSM if: The name available is not undesirable or unacceptable. – Which means, you can’t pick a name that will most likely offend anyone or any part of the community. The name cannot be identical/similar to an existing company. – No two companies can have the same name. A name that the minister has directed the Registrar of Companies not to accept for registration. – You can’t use names that are connected with the Royal families or international organizations such as “Asean” or “Nato”. The name you choose for your company should generally comply with the Act, but the ultimate decision shall be made by the Registrar of Companies, ROC for short. So before you decide to register your outlet with the mall management, you’d have to go through other authorities to approve your company name. [READ MORE: Can two companies register similar names in Malaysia?] Once you sort that out, you can apply to rent a mall space. But here’s something to take note of: Once you enter into a rental agreement with the mall management, you’re not allowed to change the name of your outlet without approval from the management—and authorities like SSM. 5. Closing your outlet might end the agreement Let’s assume the worse in this situation: Your business is failing and you’re in the midst of bankruptcy. You have no choice but to close your outlet to save yourself. But you’re not the only one who’s afraid of losing in this case. The mall management will be worried too—as they’re losing a tenant in their mall space. So in order to safeguard their interests, the management would set a clause in the contract—stating that an early termination of the agreement is a breach of contract. So if you end your agreement by closing your outlet for good, you will have to pay damages (monetary compensation) in the form of a rent—for the remaining term you didn’t occupy the mall space. However, the mall management would have to prove that they suffered losses when you closed down your outlet—and that the amount is reasonable. But here’s something to take note of: You can always negotiate with the management to avoid having to pay huge penalties. Most big malls now, are pretty open to negotiating the tenancy agreements. But it’s always best to check on the terms of your agreement before signing a contract in Malaysia. [READ MORE: What happens if you sign a contract without reading it in Malaysia?]"
"If you crash a test drive car in Malaysia, do you have to pay for repairs? Imagine this: Your car feels a bit old and you’re feeling a bit fancy. Time for something new. Feeling excited, you go to the dealership and take one of your favourite models for a test drive, with the salesperson sitting in the passenger’s seat chatting away. Everything’s going fine: the chair feels comfy, the handling’s perfect, you’re daydreaming of holding your partner’s hand while driving and...BANG!! You’re back to reality; you just rear ended another car. You haven’t even bought the car, and now you might have to pay for the repairs. Or do you? Are you responsible to pay for accidents during a test drive? Surprisingly, in some cases you don’t have to, because it depends on how big the damage is. You don’t have to pay for small damages Rejoice! If it’s minimal damage such as a scratch or a ding, the general rule is that the dealership will absorb the repair costs for minor accidents. We called up Proton, and their spokesperson told us that test drivers are usually covered under something called a fleet insurance. A fleet insurance is basically used for new, unregistered cars. If you’ve noticed, before you go on a test drive, the salesperson will photostat your license (or IC) and ask you to sign a form. They are actually signing you up temporarily for their insurance. This way, when an accident happens, regardless of who is at fault, the fleet insurance will cover for all small damages resulting from the crash. However, you need to take note that you do not sign a liability waiver instead. Because if you did, that means that the car repairs will be on you. When you sign a liability waiver, you’re basically saying that you’re taking the risk and responsibility from the dealership, and will pay for any damages that happen during the test drive. But don’t worry – liability waivers are quite rare, because dealerships wouldn’t want to discourage potential customers from taking their car for a test drive. So it’s important to always pay attention to any paperwork you sign before going on a test drive. However things work a little differently if you cause more than just a scratch... You’ll probably have to pay for big damages Here’s the not-so-fun part. If you got into a bigger accident—say, the car turned over, or one whole side of the car becomes completely damaged – the dealership will ask you to pay for the damages caused. And if you were thinking you could get away by telling the dealership that you’re unfamiliar with the car, it’s not exactly the best excuse. Whether it’s new or not, you are expected to be reasonably careful as an ordinary driver would be, as we can see in the case of KR Taxi Service Ltd & Anor v Zaharah & Ors whereby it was decided that: “...the defendant's duty, like that of any other road user, was to exercise reasonable care.” But like any other road accident, you’ll have to lodge a police report first. PDRM will then investigate to determine who is at fault for the accident. You should make sure you report it within 24 hours, as Section 52(2) of the Road Transport Act 1987 (RTA) states: “In the case of any such accident as aforesaid the driver of such motor vehicle…...shall report the accident at the nearest police station as soon as reasonably practicable...within twenty-four hours of such occurrence…” Once the investigation is complete, and if it’s determined that you’re responsible—your personal car insurance policy will kick in. Basically, the same rules will apply if you’re driving your own car or even a rental car. However, this would depend on how much insurance coverage you have for your current car. But if you never owned a car, and this was probably going to be your first (and you ended up crashing the test drive car at the start) you’d most likely have to fork out your own cash because you don’t have an existing car insurance policy. [READ MORE: Can you still report an accident to the PDRM after 24 hours have passed?] Now some of you might wonder, would things be the same if SOMEONE else hit the test drive car you were driving, instead? You won’t have to pay a single cent! If you weren’t responsible for the accident, unlucky you! You don’t have to pay for the repairs. There are two situations where the other parties will be responsible for the repairs: The other driver hits your car If it was the other driver’s fault, the dealership will handle the accident reporting and claims will be made against his own car insurance. But if the other driver has no insurance, the dealership will then resort to its own insurance for the repairs. And if you are hurt, you will have to treat your injuries through your personal car insurance or health insurance. In this case, your car insurance must have what we call a ‘UM’—uninsured motorist coverage. This coverage will insure you from injuries suffered in an accident caused by the uninsured driver. The test-drive car was faulty If all evidences point that the accident was caused by a vehicle defect, the dealership will be responsible for the repairs. Their insurance company will have to compensate for any injuries suffered by anyone involved in the incident. All in all, if ever you’re involved in any car accident, consult your insurance agent first before admitting fault. [READ MORE: How To: Handle a traffic accident in Malaysia]"
"Sejak 2012 Malaysia dah larang jual air zam-zam... apa puncanya? Selalunya, bila ada ahli keluarga, saudara mara, jiran tetangga atau rakan-rakan kita baru je balik dari tunaikan umrah atau haji, macam-macam buah tangan yang diorang bawa balik. Antara yang popular – mestilah kurma, kismis dan air zam-zam. Boleh dikatakan, yang bawa balik air zam-zam ni memang dah jadi kebiasaan dan tradisi masyarakat Islam di serata dunia. Tapi, bukan semua orang ada peluang nak pergi umrah atau haji, dan bukan selalu juga orang terdekat kita tunaikan ibadah-ibadah ni. Jadinya, kadang-kadang tu ada juga di antara kita yang beli air zam-zam dari kedai-kedai tertentu atau secara online yang banyak terjual. Walaupun macam tu, baru-baru ni kita ada dengar berita yang kerajaan sebenarnya dah keluarkan larangan penjualan air zam-zam. Seriusnya kesalahan jual air zam-zam ni sampaikan sesiapa yang menjualnya boleh didenda dan dipenjara jika sabit kesalahan. Perkembangan ni nampaknya menimbulkan persoalan juga tentang kenapa kerajaan buat macam tu? Tapi, sebelum kita bercerita lebih lanjut lagi, mungkin lebih baik untuk kita kenal dulu – apa dia air zam-zam ni dan kenapa air ni cukup istimewa kepada umat Islam. Air zam-zam dipercayai dah wujud sejak zaman Nabi Ibrahim lagi Berdasarkan sejarah, air zam-zam ni dipercayai dah wujud sejak sebelum datangnya Nabi Muhammad SAW lagi, iaitu ketika zaman Nabi Ibrahim AS. Diriwayatkan, Allah SWT memberi ujian kepada Nabi Ibrahim AS apabila mengarahkan baginda membawa Hajar (isteri baginda) dan anaknya, Ismail ke sebuah lembah tandus (yang dikenali sebagai Mekah sekarang) dan meninggalkan mereka di sana. Masa di sana, Hajar mencari air untuk menghilangkan dahaganya di antara Bukit Safa dan Bukit Marwah. Diriwayatkan dalam Sahih Bukhari, Hajar berulang alik dari dua bukit itu sebanyak 7 kali. Akhirnya, ketika berada di puncak Bukit Marwah – Hajar terdenagr satu suara yang rupa-rupanya datang dari malaikat Jibril yang berada dekat dengan tempat air zam-zam. Selepas itu Jibril mengais tanah dengan tumitnya (atau dengan sayapnya), sehingga keluar air yang memancar. Dan air itulah yang kita kenali sebagai air zam-zam sampai sekarang. Seterusnya berdasarkan hadis-hadis Nabi Muhammad SAW, terdapat banyak keberkatan air zam-zam ni sehinggakan ia dianggap sebagai sebaik-baik air di atas muka bumi. Makanya, air zam-zam ni menjadi cukup sinonim dalam kehidupan masyarakat Islam sehingga ke hari ni. Sumber air ini juga tak pernah kering sejak zama Nabi Ibrahim AS, sampailah sekarang. “Rasulullah SAW telah memberitahu kepada kita akan khasiat dan keutamaan air yang diberkati oleh Allah SWT ini… kita sebagai umat Islam perlulah mengamalkan amalan ini sebagaimana yang diamalkan oleh para sahabat dan ulama terdahulu.” – Dr Zulkifli Mohamad Al-Bakri, Mufti Wilayah Persekutuan. Tapi persoalannya sekarang, kenapa pula kerajaan Malaysia ambil keputusan nak larang air zam-zam ni dari dijual? Dan hal ni membawa kita kepada… Malaysia pernah kena tegur dengan Arab Saudi pasal air zam-zam ni Sebenarnya, isu larangan menjual air zam-zam ni bukannya perkara baru tapi dah dikuatkuasakan sejak tahun 2012 lagi. Buktinya, dari tahun 2012 sampailah sekarang, air zam zam bernilai lebih RM77,000 dah dirampas melalui pelbagai operasi penguatkuasaan. Walaupun begitu, sehingga tahun 2017 – penjualan air zam-zam ni nampaknya masih lagi berleluasa. Jadinya, pada tahun yang sama (2017) juga, Kedutaan Arab Saudi dah keluarkan kenyataan pasal isu ni. Dalam kenyataan tu, kedutaan Arab Saudi kata diorang dah lama perhatikan yang air zam-zam dijual secara meluas di sekitar Kuala Lumpur dan negeri-negeri lain-lain. Kenyataan tu menambah, pihak kerajaan Arab Saudi tak membenarkan eksport air zam-zam dan tindakan menjualnya boleh dianggap sebagai penipuan. Sebenarnya, kerajaan Arab Saudi pada dasarnya cuma membenarkan pengedaran air zam-zam secara percuma kepada jemaah haji dan umrah, serta pelawat untuk kegunaan sendiri sahaja dalam kuantiti yang terhad. Jadinya, menggunakan air zam-zam untuk tujuan komersial memang tak dibenarkan sama sekali. Selaras dengan ketetapan Arab Saudi ni, pihak kerajaan Malaysia pun meletakkan air zam-zam dalam kategori air mineral semula jadi dan ia termaktub di bawah Peraturan 360A, Peraturan-Peraturan Makanan 1985. ""Pengimportan air mineral semula jadi memerlukan lesen punca air KKM setelah mendapat pengesahan pihak berkuasa geologi dan hidrologi dari negara pengeksport. “Dalam hal ini, kerajaan Arab Saudi tidak mengeluarkan pengesahan berkenaan kerana air zam-zam tidak boleh diperdagangkan. Justeru, tiada pengedar atau syarikat yang telah mendapat lesen bagi pengimportan dan penjualan air zam zam.” – Datuk Dr Noor Hisham Abdullah, Ketua Pengarah Kementerian Kesihatan Malaysia. Dipetik dari BH Online. Dalam masa sama, kita juga kena tahu yang selain dari air zam-zam – kerajaan Arab Saudi juga melarang eksport lain seperti: Semua jenis susu bayi Pasir semula jadi dan pasir yang mempunyai mineral Ternakan dan kuda dari semua baka (jantan atau betina) Makanan ternakan seperti barli dan Sudanese sorghum Makanan ternakan ayam seperti jagung dan kacang soya Silinder gas dengan spesifikasi Syarikat Gas & Industri Nasional (GASCO) Jadinya, menjual air zam-zam di Malaysia dah diwartakan sebagai kesalahan dan Peraturan 397, Peraturan-Peraturan Makanan 1985 memperuntukkan: “(2) Mana-mana orang yang melakukan sesuatu kesalahan terhadap Peraturan-Peraturan ini yang mana tiada apa-apa penalti diperuntukkan oleh Akta apabila disabitkan boleh dikenakan denda tidak lebih daripada sepuluh ribu ringgit atau penjara selama tempoh tidak lebih daripada dua tahun.” Oleh itu, kalau korang tak nak kena denda atau penjara, elakkanlah dari jual air zam-zam ni kerana ia dah dikira sebagai melanggar undang-undang. Kemungkinan besar air zam-zam dipasaran tu adalah palsu Dalam isu air zam-zam ni, ada juga agamawan yang bagi pandangan. Mufti Perak, Tan Sri Dr Harussani Zakaria ada kata yang menjual air zam-zam – tetap salah di sisi syarak sebab pihak empunya (Arab Saudi) air itu tak membenarkannya. Manakala, Mufti Perlis, Prof Madya Dr Asri Zainul Abidin pula bimbang yang penjualan air zam-zam ni boleh menjadi eksploitasi agama untuk perniagaan. Tambah Asri, pihaknya sejak dari dulu lagi melarang sebarang jualan produk yang menggunakan nama Islam. Tapi apa yang pasti, ketika ini kerajaan Arab Saudi hanya membenarkan pemberian air zam-zam secara percuma dan menggunakan air ini untuk tujuan komersial adalah dilarang sama sekali. Malah, pada tahun 2018 sahaja, jumlah air zam-zam yang dipam di Arab Saudi mencecah lebih 8 juta liter dan jumlah itu dijangka akan terus meningkat di masa akan datang. Malah, kebanyakan syarikat penerbangan dunia (termasuk di Malaysia) – hanya membenarkan 5 liter air zam-zam dibawa oleh setiap jemaah haji atau umrah. Jadinya, kita sebagai pengguna berhati-hatilah dalam membeli sebarang air yang didakwa sebagai air zam-zam ni. Sebabnya, kemungkinan besar air zam-zam yang kita beli tu adalah palsu. Bak kata iklan-iklan kerajaan – jadilah pengguna yang bijak!"
"4 things your condo management can sue YOU for in Malaysia *Applicable to strata properties in West Malaysia and the Federal Territory in Labuan. Strata properties are condos, apartments, flats, any high- rise property and gated property. If you’re an ardent reader of AskLegal, you would have come across many articles of ours on suing your condo developer or management. A lot of the time, we’re unhappy with the way our property is being managed and we’d like to get some sort of remedy for it. You have the right to sue your condo management because either: i) A particular law allows you to do so or ii) Your management has not been fulfilling what was promised in the contract between you and them But here’s the thing: Your management can also sue YOU back for not complying with a lot of things as a resident in the property. So yes, the tables have turned. Here are some reasons they can take you to court instead. 1. Not paying your maintenance fees and sinking funds If you’re ever late in paying your maintenance fees and sinking funds, you would have gotten several reminders to pay your dues. Be it in the form of a notice or displaying a list of people who didn’t pay, your management will surely remind you to pay up. If someone doesn’t pay for months, the management might bar the person’s access card or even clamp their vehicle. [READ MORE: Why you should pay your maintenance fees & sinking funds] It’s actually a legal requirement for your developer and condo management to open accounts for these funds, and for you to contribute to the accounts. Section 25(1) of the Strata Management Act (SMA) 2013 states: Each purchaser shall pay the Charges, and contribution, to the sinking fund, in respect of his parcel to the joint management body for the maintenance and management of the buildings or lands intended for subdivision into parcels and the common property in a development area. The law above basically says that you are to pay your charges (fees) to your management for your own parcel (unit in the condo). Section 34 of the same Act goes on to say that your developer CAN take action against you for failing to pay. It’s pretty lengthy and tedious, but in essence, Section 34 says: if you don’t pay your dues, your management has to give you a notice you should have 14 days or more to pay the amount owed and the exact amount of days will be stated in your notice if you still haven’t paid after the notice period is up, your management can file a case against you the penalty for not paying up is a maximum fine of RM 5,000 or a jail term of 3 years, or both if you continue to not pay, you’ll be fined a maximum of RM 50,000 for EACH day that you don’t pay It’s important to note that maintenance fees and sinking funds are two separate things used for two separate purposes. The first is used for regular upkeep of the place while the second is used for major repair works. For this reason, your management will have a separate account for each and you’ll have to contribute to both. In other words, even if you pay your maintenance fees but not your sinking funds, you will still be in trouble with your management. 2. Renovating your house without their permission You might want to spruce up your place every now and then, but when you live in a condo or any other strata property, you’re going to need your management’s permission first. You’ll have to get a renovation permit from your local council and THEN the approval of your condo management before you start working on your place. The good news is that it doesn’t apply to every kind of renovation. Painting the walls of your own home or fixing new lights in the kitchen don’t require permits, since they are not major changes and they don’t alter the structure of your home. But in cases where you would want to break the wall between two rooms or extend the balcony, you would most certainly need to get the green light from your condo management. Your condo is a shared space between you and other residents in the block, so you can’t make any changes to or renovate any space outside of your home. If you paint the corridors a different colour or change the tiling there, you’re most definitely looking at a lawsuit from your condo management. [READ MORE: Certain home renovations in Malaysia may not require permits. Here’s why] 3. Keeping pets in your condo The law doesn’t explicitly say that you can’t have pets in a condo, but it does say that you can do so IF your management allows it. Section 14 of the Strata Management (Maintenance and Management) Regulations 2015 states that pets that are kept in condos (and other strata properties) should not be a nuisance or disturbance to other residents. If the pet is indeed disturbing others in the property, it can be taken away and action can be taken against the owner. This, however, does not apply to all of Malaysia because only some states allow for pets in strata properties. But while some states do follow this law, the final say is the condo management’s. Basically, the law gives your condo management the right to allow pets on your property. Through this law, your management can also stipulate what kind of animals you can keep in your home and even what size they should be. If your condo management allows for pets but your state law doesn’t, unfortunately, you’ll probably have to move to a landed property you just won’t be allowed to have your pet with you. This is because state law will prevail over management rules, and if the state doesn’t give your management the right to allow pets, then there’s nothing that can be done about this. [READ MORE: Can you legally keep pets in Malaysian apartments?] 4. Breaking any other management rules As a strata property is a space shared with other residents, so your condo has the right to implement rules to ensure that everyone gets to enjoy the property equally. Section 32(3) of the Strata Management Act 2013 states: A joint management body may, by special resolution, make additional by-laws or make amendments to such additional by-laws not inconsistent with the by-laws prescribed by the regulations...for regulating the control, management, administration, use and enjoyment of the building or land intended for subdivision into parcels and the common property… So, this means that your condo management can make new rules or amend the existing ones whenever needed. They can impose rules for visitors, functions, usage of facilities and even how you should dry your laundry. Condo managements usually display these rules somewhere visible enough for residents to see. But if you don’t know what your condo rules are, make sure to ask your management so you don’t end up getting sued for something you didn’t know you couldn’t do."
"3 reasons to sue your seller for late delivery in Malaysia Most of us have our fair share of experiences with late deliveries. It is annoying to get your stuff late, or even worse, getting cheated. We’ve written an article on what you could do if your online purchases turn out to be...disappointing. [READ MORE: Got cheated shopping online in Malaysia? Here are 4 ways to get justice (or a refund)] However, the solutions in that previous article was for smaller losses with smaller frustrations. The frustration is tenfold when you buy a RM100,000 Samsung TV or where you make a bulk purchase on behalf of your company. You have the right to be angry, because Netflix looks better on a big-screen TV and in terms of bulk purchases, company profits are at stake. You’d probably prefer to cancel and get refunded as soon as possible to buy your stuff elsewhere, instead of waiting for a delivery that may or may not arrive. But having your item arrive late isn’t enough to get you a refund. To do that, you’d need to show that it was very important to get your purchases on time. In order to show that time is important, you need to come within one of the three situations below. 3 reasons why punctual delivery is important The 3 reasons were given in the case of Tan Ah Kian v Haji Hasnan where the judge said, “...Firstly, time is of the essence of the contract where the parties expressly stipulate in the contract that it shall be so… Secondly time is of the essence of the contract where it was not originally stated to be so but has been made so by one party by giving reasonable notice to the other, who has failed to perform the contract, with sufficient promptitude… Thirdly, time is the essence of the contract where from the nature of the contract or of its subject matter time must be taken to be of the essence of the agreement...” Confused? Yeah, so were we. In human terms, the judge basically said that time is important when: the seller and buyer agreed in the contract that time is important; or when it is not agreed in the contract, but the buyer later notifies the seller that time is important and sets a second deadline; or the item you ordered can easily rot, like fruits. But even if you know that you can do this, cancelling your order shouldn’t be your first option. It is probably better to talk to the seller first before resorting to any extreme measures. But going down this route can be expensive in terms of legal fees, so the value of your purchase should also be considered. If a shirt costed you RM20, forking out hundreds or thousands of ringgit for legal fees for late delivery isn’t exactly ideal. But on the flip side, if you ordered a RM10,000 refrigerator, then it would be rational to sue and get refunded. In order to give a better understanding of these 3 situations, let’s look at each reason given by the judge in detail. 1. If the buyer and seller agreed in the contract that time is important This is the easiest reason to use to get a refund. If the contract with the seller has a clause like this: Time shall be of the essence of this Agreement, then you can cancel your order and get your refund for late delivery. It is very straightforward. If it’s there, then you can use this reason to get refunded; if it’s not there, then you’ll have to try using one of the other methods below. For example, if you ordered 3000 cheongsams for a CNY sale (just imagine you’re a very big company), then the contract would most likely contain a clause which says “Time shall be of the essence of this Agreement” because if you get it at anytime after CNY, it defeats your purpose of buying them in the first place. Due to this very reason, you are entitled to cancel your order if the delivery is late. If there is no such clause, then you can’t use this reason. 2. If delivery is delayed TWICE, you get a refund. For this reason, there must first be an unreasonable delay (delay without good reason) and you have notified the seller by writing to them to set a new delivery deadline. If it doesn’t arrive by the second deadline, you can cancel your order and demand a refund. This is because in the case of Mensa Mercantile v Eikobina (M) Bhd said, “...time can only be made the essence of a contract by one party giving notice to the other subject to two requirements: (a) that the other party has been guilty of unreasonable delay; and (b) the time mentioned in the notice must be reasonable...” Let’s say you ordered 1,000,000 lanterns for a CNY sale (imagine you are a very, VERY big company) and it was scheduled to arrive on 31st December but it did not arrive at that time. You give your seller a second deadline so that the lanterns reach you by 10th January (because you need to sell them before CNY). And if the delivery is late again, you CAN cancel your order and get back your money. But note that you must be quick to set the second deadline. In the case of Sharikat Eastern Plastics Industry v Sharikat Lam Seng Trading, the buyer (a company) took its own sweet time to notify the seller about the second deadline, causing the buyer to not be able to get a refund. But, the buyer in the case of Siah Kwee Mow v Kulim Rubber Plantation set a second deadline shortly after the delay and the buyer managed to get refunded. So if you don’t get those 1,000,000 lanterns, be quick in notifying the seller if you want to be refunded. 3. When it’s food or fruits, time is automatically important If you purchase things that can rot like fruits or vegetables, then it is understood that your purchase is time-sensitive and must arrive on time because let’s face it – no one is going to buy rotten fruits or stale food. As how the judge in the case of Tan Ah Kian (the case from the introduction paragraph above) put it, “...time is the essence of the contract where from the nature of the contract or of its subject matter time must be taken to be of the essence of the agreement...” The very nature of food, like the CNY mandarin oranges, is that it can rot if delivery is not punctual. So a wholesaler who buys 2000 crates of CNY oranges must get them on time and can cancel the order if delivery is late. The tapao note: It’s Malaysians nature to be patient and forgiving but we shouldn’t give too much leeway in life, especially when it comes to stuff we paid for. Again, as mentioned earlier, it’s probably best to talk to your seller first before suing them, as this can save you the hassle and fees of going through a lawsuit. Only if that fails, then you should take extreme measures."
"Boleh ke korang kena pecat kalau tahap kerja tak memuaskan? [Click here for English version] Dah 5 tahun korang kerja dengan syarikat yang sama. Boleh dikatakan yang korang memang dah berada dalam zon selesa dan tak pernah hadapi apa-apa masalah di tempat kerja… sampailah pada suatu hari ni. Korang masuk lewat ke pejabat (macam biasa) dan nampak surat korang diberhentikan kerja atas meja. Korang betul-betul rasa tak percaya yang korang dah dipecat! Lebih dari tu, korang sendiri tak tahu apa salah korang, sampai majikan ambil tindakan macam tu sekali. Korang pun ambil keputusan untuk luahkan rasa tak puas hati tu kepada majikan korang dan tanya dia kenapa korang dipecat, sedangkan korang tak buat salah pun. Masa tu majikan jawab – yang korang dipecat sebab gagal capai KPI bulan tu, selalu datang lambat dan ada ambil cuti tanpa maklumkan dulu kepada HR. Tapi sebabnya bukan tu je, majikan juga kata yang dia dapat banyak aduan pasal korang dari pekerja-pekerja lain dan pengurusan – yang akhirnya membuatkan syarikat ambil keputusan memecat korang. [BACA LAGI: Boleh ke anda dipecat sebab ambil banyak sangat MC?] Tapi korang tak boleh terima semua dakwaan tu. Korang kata yang pemecatan tu sebagai tak adil, terutamanya bila korang dah anggap syarikat tu sebagai rumah kedua korang sendiri. Tapi, semua tu tak bagi kesan sangat sebab… Syarikat memang boleh pecat anda kerana prestasi kerja teruk Secara umumnya, syarikat-syarikat boleh menamatkan perkhidmatan atau memecat pekerja yang prestasi kerja mereka teruk. Apa yang dikira sebagai prestasi kerja teruk ni termasuklah (bukan setakat yang dinyatakan di sini saja): Produktiviti yang rendah Kualiti kerja tak setanding Tak cekap bekerja Tak dapat memenuhi standard yang diperlukan Bagaimanapun, yang dinyatakan ni cuma sebahagian dari apa yang syarikat boleh gunakan untuk memberhentikan pekerja diorang. Tapi sebelum kita pergi jauh, ada satu lagi perkara yang korang kena tahu: Prestasi teruk ni tak sama dengan salah laku. Ini kerana, salah laku boleh jadi sebab seseorang pekerja tu tak datang kerja, buat gangguan seksual atau terlibat dalam jenayah (tapi tak terhad untuk hal-hal macam ni je). Mungkin undang-undang UK boleh terangkan dengan lebih lanjut pasal apa dia prestasi teruk di tempat kerja ni. Dalam kes Littlewoods Organisation Ltd. v L. N. Egenti [1976], mahkamah menyatakan: ""...mana-mana orang profesional...jika, dia dibawa ke notisnya bahawa pekerjaannya tidak menepati standard, dan jika dia tidak memperbaiki kualiti kerjanya dengan baik, dia mungkin menghadapi pemecatan. Itulah logiknya..."" Pada asasnya, seseorang pekerja yang tak menepati standard dan tak buat apa-apa untuk memperbaiki kualiti kerjanya boleh dipecat oleh syarikat kerana prestasi kerja yang teruk. Dengan kata lain, kalau korang dah bekerja dan kualiti kerja korang tu semakin berkurang – dan korang tak buat apa-apa untuk jadikannya lebih baik, korang boleh dipecat oleh syarikat. Tapi apa yang pasti, syarikat masih lagi kena ikut peraturan tertentu sebelum memecat seseorang di bawah undang-undang pekerjaan… Syarikat kena berikan peluang untuk anda berubah Tapi, walaupun dengan prestasi kerja yang teruk, majikan sebenarnya masih belum boleh memecat korang serta merta. Pertamanya, diorang kena berikan korang peluang untuk baiki prestasi korang dulu. Hal ni kita boleh rujuk pada kes IE Project Sdn Bhd v Tan Lee Seng [1987], di mana ada beberapa syarat yang perlu dipenuhi oleh syarikat sebelum memecat pekerja: “Majikan patut secara yang sangat perlahan untuk memecat pekerja atas alasan bahawa prestasi pekerja itu tidak memuaskan atau tidak dapat melakukan melakukan tugasnya… memberi amaran kepadanya tentang kebarangkalian… untuk dipecat atas alasan ini dan memberikannya peluang untuk memperbaiki prestasinya.” Ini adalah ringkasan tentang syarat-syarat yang ditetapkan dalam kes ini: Pekerja mesti diberikan notis atau amaran yang mencukupi tentang prestasi teruknya itu. Pekerja dah diberikan peluang/masa yang munasabah untuk memperbaiki prestasi kerjanya. Walaupun dah dapat notis dan peluang yang cukup, pekerja itu gagal memperbaiki prestasi kerjanya. Jadinya, kalau prestasi kerja korang tu teruk, pertama sekali yang syarikat kena buat adalah bagi korang amaran dan notis. Dalam amaran tu, syarikat mesti kena jelaskan dengan terang tentang apa yang diorang nak daripada korang dan apa yang korang perlu perbaiki. Dan lepas tu, diorang kena berikan tempoh masa yang munasabah untuk korang perbaiki prestasi kerja. Hanya selepas diorang bagi korang peluang ni dan korang masih gagal baiki prestasi, barulah syarikat boleh pecat korang sebab masalah prestasi kerja teruk. Alasan untuk langkah-langkah ni adalah – selain daripada belas kasihan, ia juga nak menunjukkan yang syarikat tak pecat korang secara semberono atau secara tidak adil. Oleh itu, syarikat ada bukti yang pemecatan tu dilakukan secara munasabah. Tapi, kalau korang rasa yang tindakan syarikat korang tu sebagai tak adil dan munasabah… Korang boleh saman syarikat di Mahkamah Perusahaan Jadinya, kalau korang rasa yang korang dah dipecat secara tak adil, korang sebenarnya boleh bawa kes ni ke Mahkamah Perusahaan. Seksyen 30(5), Akta Perhubungan Perusahaan 1967 (tiada terjemahan rasmi, diterjemahkan oleh Asklegal) menyatakan: ""Mahkamah hendaklah bertindak menurut ekuiti, belas kasihan yang baik dan merit penting kes tanpa mengambil kira bidang teknikal dan undang-undang."" Pada asasnya, mahkamah akan mengambil kira kebajikan pekerja yang dah dipecat secara tidak adil. Tetapi perlu diingati juga, yang korang cuma ada 60 hari untuk failkan aduan selepas dipecat. Korang boleh baca macam mana nak buat aduan tu di sini ini. Kalau mahkamah dapati yang korang dah dipecat secara tak adil, korang akan terima faedah-faedah tertentu. Ini kerana, pekerja yang dipecat secara tak adil berhak menuntut apa yang dinyatakan di bawah Peraturan Pekerjaan (Faedah-Faedah Penamatan dan Pemberhentian) 1980. Bagaimanapun, ada sebahagian syarikat yang ada polisi dan peraturan tersendiri dalam hal faedah penamatan perkhidmatan. Jadinya, lebih baik korang periksa dulu dengan syarikat masing-masing."
"Can you get fired for taking emergency leave in Malaysia? You wake up to some bad news on a Monday morning: Your uncle passed away. You also realise that today’s the day you need to submit your work report to your boss. You hate disappointing people—but here’s a situation where you’d have to choose between your job and family. In the end, you decide to attend your uncle’s funeral, instead of submitting your report. You inform your boss immediately via WhatsApp, saying it’s an emergency. He “blue-ticks” your message (read this article on how blue-ticks can get someone fired) and you consider his lack of response, a sign of acknowledgement. You arrive at work the next day and face your furious boss—who’s now waiting with a termination letter in hand...because you took leave without prior permission. You try and explain that you were on emergency leave but he refuses to listen. The question now is, can you be fired for taking emergency leave in Malaysia? Before we answer that, here’s something you need to know first... You might break your contract by taking emergency leave An employer-employee relationship is normally stated in a contract. The terms of the contract would include things like salary, working hours and the number of leaves employees can take. [READ MORE: 5 things about employment contracts that every Malaysian gets wrong] But this contract may be broken if either party breaches the contract. Section 15(2) of the Employment Act 1955 would apply when: “...An employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer, unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer...at the earliest opportunity...” Basically, if an employee is absent from work for more than 2 days, and does not inform his boss or have a reasonable excuse, he may be fired by the company. So if you take emergency leave for 2 days or more, you’re technically breaking your contract. But if you have a reasonable excuse to take emergency leave, your company cannot fire you easily. [READ MORE: My boss just fired me for no reason, what can I do now?] So what exactly amounts to a reasonable excuse, when taking emergency leave? You must have a real emergency! As an employee, you’re entitled to annual leaves and sick leaves. It’s common practice for employees to apply for annual leaves earlier. Sick leaves on the other hand, are similar to emergency leaves—as you never know when you’d fall sick. [READ MORE: 5 types of leave in Malaysia (and if you will be paid when you take them)] But here’s something you should take note of when taking emergency leaves: The reason behind your leave needs to be a REASONABLE one. Reasonable excuse for emergency leaves would depend on two things: 1. The nature of the emergency. 2. Whether the employee had tried to inform the superiors. In Sandran Perumal v Nestle Manufacturing (M) Sdn Bhd, the employee took 3 days of leave, claiming that he was facing an emergency. The said emergency turned out to be a land dispute between his family members—where the employee took leave without informing his company earlier. His superiors also did not approve of his leaves—and he was also told of the company policy on taking emergency leaves, which is: Employees must inform superiors within 48 hours either verbally or in writing. In this case, the employee only messaged his boss on the 3rd day of his emergency leave. His actions were considered a serious misconduct in the context of employment—even more, when this isn’t the first time he had taken leave without informing his superiors. So here’s what the court stated: “The relevant consideration therefore is whether the claimant, at that material time, had given sufficiently cogent reasons and information for any reasonable employer in similar circumstances to consider the same leave request to be of an emergency nature...” Basically, the court felt that the reason given by the employee for being absent did not seem to be an emergency in nature. (In other words, not a reasonable excuse). This is because, the problem at hand (the land dispute) had been going on for 2-3 months. There was nothing which gave rise to a sudden event that was unforseeable—which made the issue an emergency. But there are circumstances where employees have been fired although their excuse to take emergency leave was reasonable. And if this happens... You can sue your company...and your boss If you feel that you have been unfairly terminated for taking emergency leaves, you may bring a case to the Industrial Court. In the case of CK Lee & Associates v Goh Shaw Yuh—the employee tried to inform her boss that her father was sick, and needed to go on emergency leave. However, the company proceeded to fire her despite her trying to inform her bosses the reason behind taking emergency leave. In order to avoid firing employees unfairly, Section 30(5) of the Industrial Relations Act 1967 protects them as such: “The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.” Basically, the court will take into account the welfare of employees who have been unfairly dismissed. But keep in mind, you have 60 days to file a complaint after being dismissed. You can check out how to do so, with this guide. [READ MORE: Can Malaysian companies simply fire staff while they’re still under probation?] So if the court finds that you have been unfairly dismissed, you’re entitled to certain benefits. Employees who have been unfairly dismissed are entitled to claims stated under the Employment (Termination and Lay-off Benefits) Regulations 1980. However, some companies have their own policies and regulations on termination benefits. So, it would be best to check with your company first."
"5 times Malaysian doctors CAN reveal medical records without your consent Think of the last time you fell sick and went to see a doctor at a clinic or a hospital. Your doctor tells you that you have a pain in the ass haemorrhoids (touch wood x3) and the doctor scribbles illegibly on your medical record (or types the diagnosis into his computer). If your friend goes to the same doctor and your doctor tells your friend about your illness, there’s a good chance that you’ll feel embarrassed and hate your doctor for doing this, but did you know that it is illegal for a doctor to tell other people about your medical history/status? According to the first principle in the Confidentiality Guidelines published by the Malaysian Medical Council (MMC), “Patients have the right to expect that there will be no disclosure of any personal information, which is obtained during the course of a practitioner's professional duties, unless they give consent.” Any doctor who ignores this principle will be subject to disciplinary proceedings conducted by the MMC. Section 30 of the Medical Act 1971 states that, “The Council may, in the exercise of its disciplinary jurisdiction, impose any of the following punishments: (a) order the name of such registered person to be struck off from the Register; (b) order the name of such registered person to be suspended...; (c) order the registered person to be reprimanded; or (d) make any such order... ...and may, in any case, make such order as the Council thinks fit with regard to the payment of the costs ...” Generally speaking, medical records are confidential in Malaysia. And if doctors fail to keep yours a secret, they could lose their licence and will be forced to pay you for exposing your private medical record. However, the Confidentiality Guidelines gives a few situations that lets doctors release their patients’ medical records, even if the patient does not consent to it. 1. If the patient MIGHT be a criminal If you’re a suspect of a criminal investigation, your doctor will be forced to release your medical records to the police to identify the true criminal, without needing to inform you. Because there are not a lot of known Malaysian cases for this area of law, we’ll be using cases from the UK to explain. [READ MORE: Where does Malaysia get its laws from?] In the UK case of Hunter v Mann, two patients were suspected of stealing a car and was injured while making their escape. The doctor who treated them was asked by the police to release their medical profiles to identify whether they were involved in the car theft. When the doctor refused to release the records, he was found guilty under Section 168 of the Road Traffic Act 1972 which says: “(2)Where the driver of a vehicle is alleged to be guilty of an offence... ...(b) any other person shall if required as aforesaid give any information which it is in his power to give and may lead to the identification of the driver...” “(3) … a person who fails to comply with the requirement of subsection (2)(b) above shall be guilty of an offence.” So if you happen to fall from a tree while trying to steal your neighbour’s rambutans, the doctor who treats your injury MUST release your medical profile if the police asks for it to investigate the rambutan theft. 2. When the law says so This means that if a statute or a court asks for your medical records, your doctor CANNOT say get lost no. Statute A statute is basically any written law, like the Child Act 2001 or the Road Transport Act 1987. An example of a statute which compels doctors to release records is Section 10(2) of the Prevention and Control of Infectious Diseases Act 1988 which says, “(2) Every medical practitioner who treats or becomes aware of the existence of any infectious disease in any premises shall, with the least practicable delay, give notice of the existence of the infectious disease to the nearest Medical Officer of Health...” This means that medical practitioners must notify a Medical Officer of Health if they have a patient with an infectious disease. To put it in context, someone who is infected by the H1N1 virus must be referred to a hospital. If this is not done, the doctor who knew about this infection would be fined or jailed because Section 24 of the Prevention and Control of Infectious Diseases Act says, “Any person guilty of an offence under this Act for which no specific penalty is provided shall be liable on conviction- (a) ...a first offence, to imprisonment for a term not exceeding two years or to fine or to both; (b) ...a second or subsequent offence, to imprisonment not exceeding five years or to fine or to both; (c) ...a continuing offence, to a further fine not exceeding two hundred ringgit for every day during which such offence continues.” Court This is when a doctor is asked by the court to testify or give evidence about his patient. The Confidentiality Guidelines provide, “19. The practitioner shall disclose information if ordered to do so by a judge or presiding officer of a court...” In Public Prosecutor v Dato’ Seri Anwar bin Ibrahim & Anor, the prosecution asked Dr Fadzil to testify as a witness in court about his patient, Sukma who had a homosexual relationship with his adopted brother and business partner. It was legal for Dr Fadzil to speak about Sukma’s medical history because he was asked to do so by the court. In short, when the law wants it, the law will get it. 3. When it’s done for the patient’s own good The third situation where your consent is not needed is when your doctor sees that it is in the patient’s best interest to release his/her medical records. A common example can be found in the Confidentiality Guidelines is the situation of a terminal illness: “32...a practitioner may judge that it would be in a patient's interests that a close relative should know about the patient's terminal condition. In such circumstances information may be disclosed without consent.” So if you’re thinking of hiding a fatal illness from your mother to not worry her, know that your doctor will disregard your wishes and inform your closest family members about it. Another example is where medical status is released for the patient’s best interest is in situations of abuse: “33. If a practitioner believes a patient to be a victim of neglect or physical, sexual or emotional abuse and that the patient cannot give or withhold consent to disclosure, the practitioner shall give information promptly to a relevant person or statutory agency, where the practitioner believes that the disclosure is in the patient’s best interests...” If a doctor attends to patients who were beaten by their spouse, the doctor must report it to the authorities. The same duty to report applies to patients who were raped. In such scenarios, the doctor must tell the authorities about the abuse to protect the patient’s wellbeing. 4. When the doctor thinks you would’ve consented anyway Imagine that you are undergoing an operation, unconscious from anaesthesia. Suddenly, an emergency happens which requires immediate treatment or you’ll die. Your doctor cannot get you to sign a second consent form before treating you because you’re...well, unconscious. But if you think about it, even if you were awake, you would’ve consented to the treatment to save your own life anyway. This precise emergency situation is covered by the Confidentiality Guideline as well, which reads, “25. There will also be circumstances where, because of a medical emergency, a patient's consent cannot be obtained, but relevant information must, in the patient's interest, be transferred between health care providers.” Another example where you would have consented if your doctor asked you is in diagnosing your illness, “24…expressed consent would not be needed where a practitioner discloses relevant information to have a referral letter typed, or a practitioner makes relevant information available when requesting diagnostic investigations.” The doctors treating you might not have the expertise needed to cure you and must seek advice from a specialist. Of course, the doctors don’t need to ask for your permission before consulting specialists about the best treatment for you. We trust the doctors to cooperate and come up with the best treatment, just like how we trust Marvel Studios to produce an epic sequel to Black Panther (Subeditor: I’m still not convinced about that [Black Panther]). 5. When there is a risk to the public This doesn’t just cover infectious diseases like dengue fever but also mentally unstable people who may be dangerous to society. Because it is dangerous to have psychopaths walking on the streets, in the malls, at the parks... The MMC Confidentiality Guideline says, “34. Personal information may be disclosed in the public interest, without the patient’s consent...” In Tarasoff v Regents of California (Just as how we refer to UK for certain cases, the UK also refers to US in certain situations. A US case is used here because UK doesn’t have one with this level of craziness), the murderer told his psychiatrist about his intention to kill his ex-girlfriend, whom he ultimately killed. The judges decided that the psychiatrist was wrong to keep the murderer’s motives a secret because the right thing to do was to tell the police and/or the victim’s family about the murderer’s intentions. So, must psychiatrists tell the police about your delusions or frequent mood swings? Not really, no. Before doctors can do this, they must fulfil 2 requirements based on the UK case of W v Egdell, “The questions that needed to be asked were: (i) was there... a serious risk… (ii) would disclosure reduce the risk? "" Malaysia applies this law as well. If such a medical case appears in our country, the doctor can only release medical records which are relevant to investigating what made the patient dangerous to the public. For example, if a patient went around stabbing people because of delusions, the doctor can only release his medical records about the delusion and NOT about the patient’s anorexic history. The extent of disclosure allowed is only the information needed to protect the public. In a shorter explanation, you’d have to be a super obvious ticking time bomb before your doctor is allowed to tell anyone about your illness. So, doctors only release our medical records when they are forced to do so. As long as you’re not a suspected criminal and you don’t pose a serious threat to the people around you, your medical status will remain private and confidential."
"In M'sia, you can be fined for rearing farm animals in your backyard It’s not that uncommon for Malaysians to keep a pet. Chances are, either you or your neighbour would have one. But depending on where you live, instead of just hearing meows and woofs, you might start hearing cluck clucks and maybe even...moos? Yes, we’re talking about animals like cows and chicken, which probably belong more on a farm instead of the backyard. Having a chicken in the backyard isn’t such an outlandish scenario for Malaysians, and we might just accept it as how things are— just a chicken, no big deal, right? Still, we can’t help but think, Is keeping farm animals in a backyard actually legal, or have they fallen fowl of the law? It depends on your local council There actually aren’t any one size fits all law in Malaysia that covers keeping farm animals in your house. What we found out is that it depends on your local council’s by-laws. By-laws are small laws created by your local council, which applies specifically to your area. So to know whether it is legal or not, you’ll need to check with your local municipal council. For instance, DBKL (Dewan Bandaraya Kuala Lumpur) or MBPJ (Majlis Bandaraya Petaling Jaya). So for research, we called up DBKL and here’s what they had to say: “Tak ada undang-undang tentang (binatang) ni sebenarnya. Kita guna undang-undang kacau-ganggu (nuisance) di bawah Akta Kerajaan Tempatan.” – Spokesperson from DBKL through a phone interview So even with the municipal council, there aren’t any specific laws on it. However, as farm animals can become a nuisance, the owners will be charged under the Local Government Act 1976. In the Act, it describes nuisance as: “nuisance” means any act, omission or thing occasioning or likely to occasion injury, annoyance, offence, harm, danger or damage to the sense of sight, smell or hearing or which is or is likely to be injurious or dangerous to health or property or which affects the safety or the rights of the inhabitants at large. If the animals start to become a nuisance, the officers will first send a warning to their owners on it. However, if the owners don’t comply, they can be fined up to RM1,000 and jailed not more than six months. But the spokesperson stressed that this doesn’t mean you can keep farm animals behind your house, just because the law doesn’t specifically mention it. Even 1 or 2 animals can be a nuisance to your neighbours, so DBKL didn’t recommend keeping one. Also, bonus info: There is actually one specific law in KL covering cows and buffaloes, called the Undang-Undang Kechil (Lembu-Kerbau). However, they mentioned this law has long been disused and will be removed soon. Again, this example above only applies to Kuala Lumpur. So to be sure whether a chicken or cow has a place behind your house, contact your local municipal on it. You can’t just make bigger cages to keep the animals Okay...so to avoid the animals from being a nuisance, you can just build proper cages and a stable for it, can’t you? Can’t disturb the neighbours if the animals are kept in stables and cages (How big is your backyard???). But building structures for farm animals in the wrong area would bring you in trouble under a different kind of law. Under the Town and Country Planning Act 1976, you can’t do agricultural activities in a residential area, which covers the “breeding and keeping of livestock.” So you can’t build a stable behind your house. Why? When towns are planned, some areas are designated for residences, while some other areas are for industrial and agricultural activities. So you can’t build an apartment at an industrial area, or in this case, make a stable behind your house. Under the Town and Country Planning Act: 18. (1) No person shall use or permit to be used any land or building otherwise than in conformity with the local plan. And oh boy, this actually carries quite a hefty fine for it. Under Section 26: (1) A person who... (a) uses or permits to be used any land or building in contravention of section 18...commits an offence and is liable..to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both... So wow, a fine not more than RM500,000 or jailed for two years. Not worth it guys. You can keep them temporarily for religious reasons What about keeping farm animals temporarily? During Hari Raya Haji, some Muslim families might keep cows or goats in their compound in preparation for the korban ritual. Is that okay? “Yang tu kena minta permit dari DVS (Department of Veterinary Service)” – Spokesperson from DBKL So it’s okay to keep the farm animals for awhile, as well as to slaughter them, as long as you have the right papers from the DVS. Still, despite all the laws, why are there still chickens roaming behind houses? The reason is probably a lack of enforcement, as well as the neighbours not minding. If everyone is cool with it, and there are no issues, then there isn’t a problem. But if your neighbours bird starts flying over your fence, and you’re feeling the fear of the bird flu, don’t coop up your feelings and contact your local council."
"Can you get fined for smoking at a roadside food stall in Malaysia? The grace period on the smoking ban is over. Malaysians are now getting fined for smoking in eateries—where in just the first two days of 2020, over RM170,000 worth of fines were handed out to smokers and eatery owners. This led to some renewed interest in our article from last year, when the smoking ban was first introduced. This also brought questions from Malaysians, on whether the extention of restaurants (tables you see by the roadside that are part of a restaurant) and setting up roadside stalls with tables and chairs—can get people fined, if they smoke next to it. We decided to get to the bottom of this by contacting the Ministry of Health (MoH), and here’s what they had to say: You CAN be fined for smoking by roadside stalls and restaurant extensions As we mentioned earlier, our readers had questions on whether it’s possible to still smoke at roadside stalls or extensions to restaurants. We managed to get a spokesperson from MoH to shed some light into this matter: “...Food premises include the ones that sell food too. It does not just narrow down to restaurants, but it includes roadside sellers that sell food to people. The seller has to place a “no smoking” signage and comply with the ‘3m rule’...” –Spokesperson from MoH (paraphrased by Asklegal) Basically, the MoH has the authority to fine those who smoke by roadside stalls too. Both the stall owner and smoker will be fined for the offence—carrying a fine of RM250.00 for the first and second offence, and RM350.00 the third time. There is also a requirement for the seller to put up the “No smoking” sign at stalls, and smokers should follow the 3-meter distance rule. Also, if the roadside stall does not operate with a valid license, the local council will take action against the operator. The stall operator can actually be fined up to RM25,000 as stated under Section 70(12) of the Street, Drainage and Building Act 1974. As for restaurant extensions, the restaurant owner must comply with the 3-meter rule. However, MoH stated that eateries are not allowed to provide “designated smoking areas” nearby restaurants. But there’s an exception to this: MoH made it clear to us that if a restaurant extends the designated smoking area outside its premises, it is now the responsibility of the local council, and not MoH. In other words, MoH is only responsible for the smoking ban within 3-meters of the eatery. However, the local authorities have the right to issue fines if any law is broken by the owner of the eatery—including licensing. Some restaurants—particularly mamaks—practice putting out extra tables and chairs for customers out on the roads. There’s actually a law that allows the local council to confiscate the tables and chairs, as well as slap fines on the business. [READ MORE: 7 things people do at mamak shops you didn’t know were illegal] The Health Minister can make custom “no smoking” zones Regulation 22 of the Control of Tobacco Product Regulations allows the Health Minister to declare any building, premise, or place accessible by the public (or any part of these places) as a “no smoking” area. Section 36(2)(d) of the Food Act 1983, the minister has the power to: “...Without prejudice to the powers of the Minister to make regulations under this Act, the Minister may make regulations providing for all or any of the following: (d) the prohibition against smoking of tobacco products in specified buildings and the declaration of any place as a no smoking place and for notices to be placed at such place;...” In other words, the Minister can place any conditions as he thinks fit. As long as he puts a notification of his decision in the Federal Gazette, he can declare which areas should follow the smoking ban. There is a list of places which come under Regulation 11 of the Control of Tobacco Product Regulations 2004. Here are some of the places listed as “no smoking” zones in Malaysia: Entertainment centres, or theatres (does not include pubs, night clubs, or casinos during their operation hours) Any area of hospitals or clinics Public lifts and toilets Eating places or shops Public vehicles and public transport terminal These are just 5 out of 23 places that are listed in the Regulation, which you can read in our article here. If visitors don’t comply with the regulations, the property owners have the right to force visitors off the property. Which is why, it pays to pay attention as to whether private establishments have smoking rules of their own or not. More than one authority is involved It’s worth mentioning again, that MoH is clear on the extensions that are within their jurisdiction...and not. There are some regulations that fall under the local council’s control, instead of the Health Ministry. But as far as the smoking ban is concern, even if it’s an illegally placed extension of a restaurant—or an illegal roadside stall, the smoking ban will apply on both smokers and the owner of the eatery. If you do come across someone smoking at/nearby an eatery (and you’ve tried to stop them), perhaps the next best step is to make a report to the Health Ministry’s hotline at 603-8892 2530 or Whatsapp/Telegram: 010-860 8949."
"Anda sekarang boleh kena pecat sebab ""blue tick"" mesej WhatsApp syarikat [Click here for English version] Masa tengah tulis artikel ni, seorang penulis kitorang ada tanya sama ada WhatsApp ni betul-betul membantu syarikat berkomunikasi dengan lebih baik… atau lebih banyak bawa kes ke mahkamah. Sebabnya, sebelum ni kitorang ada tulis satu artikel pasal seorang pekerja Malaysia ni yang dipecat sebab keluar dari group WhatsApp syarikat – klik sini kalau nak baca. Sekarang ni, ada pula kes seorang pekerja kena pecat sebab blue tick mesej WhatsApp. Memandangkan WhatsApp sekarang ni dah jadi antara platform utama komunikasi, kebanyakan syarikat ada buat group WhatsApp dengan pekerja masing-masing ataupun kadang-kadang tu mesej diorang secara personal dengan aplikasi ni, sebagai alternatif emel. Seperti mana yang kita tahu, kegunaan blue tick dalam WhatsApp ni menandakan sesuatu mesej tu dah dibaca oleh orang yang menerimanya. Dalam konteks pekerjaan, ia mungkin nampak tak adil untuk seseorang pekerja tu dipecat sebab tak balas mesej majikan. Mungkin ada juga di antara kita yang akan kata – mengabaikan sesuatu teks mesej atau panggilan tu sebagai hak peribadi. Tapi, sebelum korang nak kata, apa yang pekerja tu alami sebagai tak patut, ada banyak lagi cerita di sebaliknya, sebab… Pekerja tu bukan je blue tick mesej majikannya Pada asasnya, mana-mana syarikat di Malaysia ni tak boleh pecat pekerja diorang sesuka hati je, kecuali kalau sebab kukuh untuk berbuat demikian. Dalam kes Megat Adzwan Shah bin Shamsul Anuar v Malaysia Professional Accountancy Centre, MyPAC (syarikat) dah memecat Megat (perkerja) bukan hanya sebab dia blue tick mesej majikan dia je. Boleh dikatakan yang kes ni jadi bukan disebabkan satu sebab je, tapi ada rangkaian peristiwa yang akhirnya menyebabkan dia dipecat, bila dia tak balas mesej majikannya. Sebenarnya, sejak awal lagi memang dah ada aduan tentang prestasi tak memuaskan dan salah laku di tempat kerja yang pekerja tu dah buat. Dua perkara ni dah cukup untuk membolehkan MyPAC menamatkan perkhidmatan pekerja itu. Antara sebab-sebab kenapa dia dipecat adalah: Sikapnya terhadap kerja tak memuaskan Dia selalu lewat datang kerja Dia gagal siapkan tugasan yang diberikan kepadanya Gagal memperbaiki kualiti kerjanya Pemecatannya bukan kerana dia tak balas mesej majikannya je, tapi juga disebabkan faktor-faktor lain. Syarikat juga ada bagi dia masa yang munasabah (3 bulan) untuk baiki prestasi kerjanya. Benda ni dibuat untuk membantunya jadi pekerja sepenuh masa, dapat pengesahan (confirmation) dari syarikat. Tapi, dia tak buat apa-apa kemajuan walaupun dapat tempoh lanjutan percubaan selama 3 bulan tu. Lepas tu, kontrak pekerjaannya dah ditamatkan oleh syarikat – yang kemudiannya diikuti dengan tuntutan mahkamah oleh pekerja berkenaan. Tapi, mahkamah setuju dengan tindakan syarikat memecatnya Seperti mana yang diberitahu di awal tadi, mana-mana syarikat boleh diambil tindakan kalau diorang memecat pekerja tanpa sebab yang munasabah. Dan disebabkan pekerja tu masih dalam tempoh percubaan, mahkamah kena pertimbangkan beberapa perkara untuk lihat sama ada pemecatan tu dibuat secara adil atau tak. [BACA LAGI: Boleh ke majikan pecat pekerja yang masih dalam tempoh percubaan?] Secara umumnya, syarikat tak boleh pecat pekerja diorang yang masih dalam percubaan, tanpa sebab munasabah. Seperti mana dalam kes – Mak Teck Mun v Ginova Marketing Sdn Bhd, di mana seorang pekerja ni dipecat sebelum tempoh percubaannya tamat. Dia kemudian saman syarikatnya tu, dan menang berdasarkan alasan yang ditetapkan oleh mahkamah: ""... pelantikan dalam tempoh percubaan selama enam bulan tidak memberi majikan hak untuk menamatkan perkhidmatan seseorang pekerja sebelum tempoh enam bulan tamat kecuali atas alasan salah laku atau alasan lain yang mencukupi, yang dalam hal itu juga perkhidmatan pekerja tetap boleh ditamatkan. Selepas tamat tempoh enam bulan, majikan boleh sama ada mengesahkan atau menamatkan perkhidmatannya, kerana perkhidmatannya didapati tidak memuaskan."" Walaupun begitu, secara asasnya – pekerja yang masih dalam tempoh percubaan, masih boleh dipecat kalau dia tak jalankan tugasnya dengan baik atau dah melakukan salah laku yang serius. Dalam kes blue tick ni pula, Mahkamah Perusahaan memutuskan bahawa pekerja itu tak melaksanakan tugasnya dengan baik, dan ia cukup untuk membuatkan dia dipecat. Tapi ini bukan satu-satunya sebab kenapa dia dipecat. Pekerja tu juga dikatakan ambil masa rehat yang lama dan tak bekerja 9 jam sehari seperti mana yang keperluan dalam pekerjaannya. Lebih parah lagi, pekerja tu juga ambil cuti tanpa rekod – yang membuat syarikat meragui kejujurannya… Syarikat dan mahkamah tak nampak alasannya sebagai… munasabah Sebenarnya, pekerjaan tu gagal datang ke tempat kerja pada 21 Julai 2017. Jadi, majikannya pun mesej dia guna WhatsApp, dan tanya sama ada dia akan datang kerja tak hari tu. Tapi, pekerja ni tak balas mesej tu, dan dakwa dia tak boleh balas mesej tu sebab dia sakit – acute gastritis. Dia lepas tu kata, yang dia salah letak telefon dia tu selama beberapa hari, setelah jauh sakit. Majikan dia yang rasa marah dan tak puas hati ni pun, tunjukkan screenshot WhatsApp di mahkamah, yang menunjukkan pekerja tu dah blue tick mesej majikannya pada hari kejadian. Bila bukti tu dibawa ke mahkamah, pekerja tu ubah pula versi ceritanya dengan kata – anak saudaranya yang main telefonnya. Ceritanya ni dah buatkan mahkamah cukup sebab untuk kata yang pekerja ni tahu di mana telefonnya di hari kejadian – dan membatalkan kenyataannya sebelum ni yang kata dia tak tahu di mana telefonnya tu. Mahkamah kemudian memutuskan yang pekerja itu mungkin tak jujur dengan kenyataannya, yang membawa kepada pemecatannya. Oleh itu, mahkamah bersetuju dengan keputusan syarikat memecat pekerja itu, atas alasan prestasi lemah dan salah laku - yang sebahagiannya disebabkan oleh kes blue tick tu. Blue tick WhatsApp boleh jadi bukti Read receipt di WhatsApp yang menjadi petunjuk sama ada seseorang tu dah mebaca mesej yang di hantar atau belum nampaknya boleh diterima di mahkamah sebagai bahan bukti. Mahkamah tinggi Malaysia meletakkan 2 kriteria dalam kes sebelum ini, yang mesti ada untuk kita mengguna mesej WhatsApp di mahkamah: Pihak yang mengakui teks WhatsApp sebagai bukti mesti memastikan mesej itu berkaitan dengan kes dan prosiding Bukti mesti dikemukakan dalam bentuk dokumen yang dihasilkan melalui komputer (iaitu, hendaklah disahkan mengikut Akta Keterangan 1950). Pada dasarnya, korang boleh menggunakan WhatsApp sebagai bahan bukti di mahkamah selagi ia sesuai dengan kriteria yang dinyatakan di atas. Dan walaupun bukan tanggungjawab undang-undang untuk korang membalas mesej majikan, tapi dah menjadi satu tindakan sopan biasa untuk korang membalas mesej penting. Atau… paling mudah pun korang pergilah ke Setting di WhatsApp korang, klik Account, Privacy dan lepas tu matikan Read Receipts untuk elakkan blue tick korang tu digunakan oleh syarikat sebagai bahan bukti di mahkamah."
"Here's 5 Malaysian laws you didn't know have started in 2020 So it might have already dawned upon Malaysians, that we’re not going to see flying cars this year. But this doesn’t mean change isn’t set to come. We actually came across some fresh new laws and amended ones that we’ll be seeing in 2020! The most prominent ones on social media right now, is the smoking ban in eateries and the ban on plastic straws. Here’s a brief intro on both regulations: The smoking ban was recently gazetted by the Health Ministry—carrying penalties up to RM10,000 or 2 years imprisonment if caught smoking at a restaurant premise. The plastic straws ban on the other hand, ensures traders and F&B operators limit the use of plastic straws. [READ MORE: 5 important things you need to know about Malaysia’s new no-smoking law] Now if you scroll through social media at least twice a day—you would have already seen headlines for both the laws mentioned above. So instead of knowing what we already know—let’s look at some other fresh, new laws this brand new decade has to offer us. Perhaps we should start with some good news first... 1. Minimum wages have been increased! Certain major states in the country will see an increase in minimum wages for it’s employees. To name a few, they include Selangor, Penang, Johor Bahru and Miri (you can read the full list here). The raise in minimum wage has been increased from RM1,100 to RM1,200 starting this year. The minimum wage is applicable to all employees (both private and public sectors) as stated in the Minimum Wages Order 2018. As for the not-so major towns, the minimum wage is at RM1,100 now, when it was previously RM1,050 before the amendment of the 2018 Act: “Paragraph 4 of the principal Order is amended by substituting...RM1,050 the word RM1,100...” The amendment lies in the minimum amount employees get. The amended Act also excludes domestic service providers (housekeepers, gardeners and child minders) from receiving the new minimum wages. Now speaking of children and “minding” them, we actually have a new law enforced for them in 2020. 2. Safety seats for children are now mandatory There were approximately 280,000 road accidents in the first half of 2019 alone… This gives us enough reason to protect children, especially when it comes to safety in vehicles. In fact, it has been statistically mentioned, that the use of child safety restraints reduces the risk of death by 60% –particularly for children below 4 years. Which is why this year, we will be seeing some stricter enforcement for children in vehicles. It’s now a compulsory requirement for child safety seats to be used in cars for children. The Malaysian Institute of Road Safety Research (MIROS) created a guidebook on how to install child seats, to help ease us through this new regulation.They’re also providing a seminar called the “Malaysia Child Occupant Safety Training Program” (MyCOSTP)—a one day course to further help Malaysians adapt to the law. (Click here for more details on the course). As for those of us who are children at heart, the law is pretty stern this year on the use of rear safety belts. The law on the use of rear safety belts are stated under Section 4A of Motor Vehicles (Safety Seatbelts) Rules 1978: “Subject to rule 7, every person in the rear seat of a motor vehicle to which rule 2A applies shall wear a safety seat-belt in the manner required by its nature and construction from 1 January 2009.” Although this law was made wayyy back—there was not much done to implement it...until now. The Road Transport Department (JPJ) has stated that drivers of cars will be fined if they have no rear safety seat-belts installed, and if a passenger who is sitting in a rear seat does not use his or her seat-belt, he or she will be fined instead. 3. There are stricter laws to prevent corruption Malaysians are no strangers to stories of Ministers and other authorities being charged for crimes involving corruption. You can read some of the links below if you’re inquisitive to know more: [READ MORE: A Malaysian judge reveals 4 ways corruption allegedly spread through the courts] [READ MORE: The case of suspected misconduct by 6 EC members during GE14 was dropped. But why?] In order to curb this, we’ll see a new clause taking effect via the Malaysian Anti-Corruption Act (MACC)—which now makes both companies and persons responsible for corruption. Previously, the law only prosecuted individuals for corruption. With this new amendment in the Act, it’s now possible to go after companies and partnerships that are classified as “commercial organizations” in the Act. [READ MORE: Types of businesses in Malaysia] Section 17A of the MACC Act is set to apply in June this year. The main purpose of the act is to punish anyone who commits a corrupt act in a company/business organisation. Here’s what the amended section states: “A commercial organisation commits an offence if the person associated with the commercial organization corruptly gives...promises or offers to any person any gratification whether for the benefit of that person...with intent— (a) to obtain or retain business for the commercial organization; or (b) obtain or retain an advantage in the conduct of business for the commercial organization” This new clause in the Act also carries a huge penalty—a penalty not less than 10 times the amount of gratification (sum from the corrupt activity) or jailtime not less than 20 years. 4. We’re now taxed for using digital services Recently, Google, Facebook and Adobe have announced that they will start charging users the tax for their paid services. So if you previously paid RM100 for any of these services—it will cost you RM106 (RM100 + 6% tax) starting January 2020. This is known as the 6% digital tax on foreign service providers—as announced in the 2019 budget. But here’s some good news which might save you money and a heartbreak: The tax only applies if you’re using a paid service from a foreign service provider. Here are some foreign service providers that are taxed this year: If you subscribe to Netflix you can’t get away from being taxed. But all the services you’re using are technically free from tax payments. Apps such as Facebook will remain free to be used. The digital tax will only apply if you’re paying for an advertisement on Facebook. The main purpose of this digital tax is to provide the government with potential extra revenue. The Royal Malaysians Customs Department (RMCD) confirmed that at least 126 foreign digital service providers have registered as of now. The reason behind the tax implementation, is give fair and balanced tax charges for both foreign and local providers. [READ MORE: In 2020, the Netflix Tax in Malaysia will affect more than Netflix, Facebook & Spotify] 5. Students can now protest...freely If you’re an avid AskLegal reader, you might still remember our article on the UM student who did a solo-protest against the Vice-Chancellor—or you can just read the link we’ve added. Now here’s what our law states with regard to protests: Protesting is a Constitutional right as per our Federal Constitution. Article 10 of the Constitution states as such: “(a) every citizen has the right to freedom of speech and expression...” However, uni students faced problems when the UUCA bill was passed in 2018. The Act initially prevented university students from actively participating in political activities on campus. But this year, the Act is set to be repealed—and will be replaced by a new Act soon. University students may have more freedom in participation in political activities that are legally construed by the Act."
"5 things Malaysian condo owners can sue their management for Note: Although we mention “condo management” throughout this article, this law also applies to apartments, flats, any high rise property and also gated properties in Malaysia. If you live in a condo, you would most likely have had your share of your problems with the management or developer. You’ve probably put up with a lot of things you aren’t happy about, and you might be sure if there’s anything you can actually do about it. But here we have 5 things that you may or not may have known you can sue your condo management for. At the end of this article, you’ll also find a link on steps to sue your developer. Before we get into the list of things you can sue your management for, let’s take a step back and look at who actually is the management. The developer – these are the people who bought the land and built your condo on it. For about the first year or so, they’ll be in charge of managing your property. Joint Management Body (JMB) – your developer is supposed to hold a meeting with the condo residents about a year after your home is to ready for you to move into. Once this meeting is held, a new management will be formed and the JMB will take over the role of managing your property. Management Corporation – Once strata titles are issued for the units in your condo, a Management Committee (MC) will take over the management. If you don’t know what a strata title is, no worries! We’ll explain it in detail below. But basically, a strata title is given to you to say that you are the sole owner of your house, and issuing this will usually take a little bit of time. It’s important for you to know exactly who is managing your property, so that you will be able to hold the right party responsible. Now that we’ve established this, let’s talk about some things you can sue them for: 1. Letting your property become run down You might have been putting up with a poorly maintained condo for awhile now. But, after awhile, what seems to be an inconvenience may become a hazard in your property. When things start to get difficult like this, we Malaysians are usually quick to complain. But thanks to the Strata Management Act 2013, instead of just going down to the management office and arguing with a worker, you can actually sue them for not doing their work! Section 48(1) of the Act states: A developer shall, during the preliminary management period and subject to the provisions of this Act, be responsible to maintain and manage properly the subdivided building or land, and the common property. Section 48(4) goes on to say: Any developer who fails to comply with subsection (1) commits and offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both. What this means is that, if your management fails to do their job and take care of your property as they should, they can be fined up to RM 250,000 or be jailed for a maximum for 3 years, or even both. Yes, it’s that serious. We’ve actually discussed suing a condo management for poor upkeep in depth in another one of our articles, which you can read here. 2. Delay issuing your strata title If you don’t know what a strata title is, the first thing to take note of is that it’s only given to people who live in buildings with two or more stories and landed properties in gated areas. Basically, it is for homeowners who share a piece of land with other homeowners. A strata title is issued to give you ownership of YOUR share in the whole property, i.e. your unit in the entire condo, and this is why it’s a big deal. In some cases, the title can take years to be issued to homeowners, but this has in turn, caused other problems. If you remember, in the intro, we said that a Management Corporation (MC) cannot be formed until the strata titles of a property have been issued. So, if you don’t get your strata title, the natural flow of how a management should change hands will be disrupted. Another problem with not getting your strata title is that if you wanted to sell your condo, the process would be much more complicated compared to if you were sell it with the title. Also here’s the most important bit: The Strata Title Act 1985 states in several parts of the Act that it’s actually a requirement under the law for your developer to issue your strata title within 3 months of the completion of your condo. So, if they’ve failed to do this, you do have the right to take action against them. 3. Not creating maintenance and sinking fund accounts Because your developers are the very first people to be your management, it’s their job to create a maintenance account and a sinking fund account. The fees in the maintenance account are used for the upkeep of areas that are commonly shared by the residents of your condo. On the other hand, the fees in the sinking funds account will be used to renovate any part of the condo whenever needed. As you can see, the maintenance fees and sinking funds play a huge role in ensuring that your condo is in tip-top condition. [READ MORE: Why you should pay your maintenance fees and sinking funds] Section 10(1) of the SMA 2013 states: A developer shall open one maintenance fund account in respect of each development area with a bank or financial institution. Section 11(1) of the SMA 2013 states: A developer shall open one sinking fund account in respect of each development area with a bank or financial institution. If your developer fails to do this, he may have to a maximum fine of RM250,000 or be jailed for a maximum of 3 years, or both. But this doesn’t apply to developers alone. When the JMB and MC take over as your management, they will also be subject to the same laws, and this can be found in Sections 23, 24, 50 and 51 of the SMA 2013. 4. Not having an AGM to form a new management As mentioned above, the developer will have to hand over the management to a newly formed committee after about a year of being in charge. Annual general meetings, or AGMs, are held to discuss any concerns or issued faced by an organization, and it would naturally be important for a housing management to hold such an AGM. The need for a housing management to hold a AGM every year is a requirement under the law. Section 18 of the SMA 2013 states that the developer, being the first management, needs to convene the first AGM. Failure to do so can incur a pretty heavy punishment as well. (1) It shall be the duty of the developer to convene the first annual general meeting of the joint management body within the period specified in subsection 17(1) * (2) Any developer who fails to comply with subsection (1) commits and offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both. *12 months from the time your house is ready to move into A group of residents from a housing known as K Residence actually took their developer, Duta Yap to court for failing to form a JMB. There were other issues, such as misconduct within the management and maintenance funds being misused. The residents, however, were very unhappy because a new management was not formed although their homes had been ready to move in over 12 months ago. As the case is still ongoing, we don’t know the outcome yet, but it sure is good to know that these residents are ensuring that they get their rights under the SMA 2013. 5. Not insuring your property against damage Most of us have insurance policies for things we consider priceless and usually, we buy these policies on our own. Some of us might have insurance for our homes too. But did you know that your condo management is also supposed to provide insurance for your property? Section 93(1) of the SMA 2013 states: Any person or body who has a duty or is responsible under this Act to maintain and manage any building shall insure such building under a damage policy with a licensed insurer in accordance with the part. The Act then goes on to clarify that a damage policy is supposed to insure your building against incidences like “damage by fire, lightning, and explosion” as well as “bursting or overflowing of water tanks and pipes”. So, you may be able to insure your particular unit itself when you buy your own home insurance policy. But a damage policy provided by your condo management is as important as it may cover a larger scope of things, such as the wiring and pipes in your entire condo. If you don’t currently have your insurance policy with you, make sure to pop by the management office and get a copy of it. Or, if your condo management doesn’t even have such an insurance policy, then you might have to show them Section 93 of the SMA 2013… and possibly the rest of this article. [READ MORE: 5 steps to take when you want to sue your condo developer in Malaysia]"
"In 2020, the Netflix Tax in Malaysia will affect more than Netflix, Facebook & Spotify Starting from 1st January 2020, the so-called “Netflix tax” will be implemented in Malaysia. This is a 6% digital tax on foreign service providers as announced in the 2019 budget. This is done in line with the Malaysian Sales Tax Act 2018 and Service Tax 2018, and will expand the scope of the Sales and Service Tax (SST) to cover foreign online-based service providers who before this paid 0% tax in Malaysia. Recently, Google, Facebook and Adobe have one by one announced that they will start charging users the tax for their paid services. So now, if previously you paid RM100 for any of their services, it will cost you RM106 (RM100 + 6% tax) come the new year. But looking at the list of companies, this might affect much more than your entertainment bills. The tax might cover almost everything online So which companies are to be affected? We look to see the exact definition. In the Service Tax Industry Guides, there are two requirements: they are foreign service providers who provide digital services. So let’s see what does digital service mean in the first place. Digital service is defined under Section 10 in the Guides provided by the Royal Malaysian Customs Department (RMCD) as: “...a service that is to be delivered through information technology medium with minimal or no human intervention from service provider"". So this would probably cover practically any online-based service we use. Next, we need to figure out who are the foreign service providers affected. Basically any company earning more than RM500K located outside Malaysia which provides the following digital services will fall under this scope: Categories of digital services Examples Softwares, applications, video games Adobe, Steam Music, e-book, films Spotify, Netflix Advertising on social media platforms, e-commerce sites Facebook, Amazon Search engines, social networks Google Custom Search Server hosting, database Google Cloud Internet-based telecommunications Skype Online training 360 Training Others (subscription to online newspapers, provision of payment processing services, etc) Daily Mail, Paypal So how will it affect Malaysian users? From the consumer’s perspective, the main concern will be on its impact on pricing. Currently, experts say the most likely scenario is that the cost of digital tax will be passed to Malaysian users. This can be seen when Google and Adobe have decided to charge their Google G Suite and Adobe Creative Cloud users respectively, as well as Facebook which charges for advertising on its platform. However, do note that the tax only applies if you’re using a paid service from a foreign service provider. To illustrate, if you subscribe to Netflix you can’t get away from this new SST. Otherwise if the service you’re using is free, you won’t have to pay tax for it. Using Facebook as an example, it will remain free to be used, but if you’re paying for an advertisement on it, there will be a 6% tax on the advertising service. Why are we paying for it? This digital tax will provide the government with potential extra revenue. The RMCD has confirmed that at least 126 foreign digital service providers have registered as of now. Those companies who evaded the tax will be fined up to RM50K or go to jail up to 3 years if found guilty under the new law. The earnings will likely be more than RM2.4bil a year, based on the Statistics Department’s survey that estimated Malaysia’s e-commerce income at RM398 billion in 2015. Not only that, according to our Deputy Finance Minister Datuk Amiruddin Hamzah, the tax is implemented to level the playing field between foreign and local online-based service providers. Previously, our local providers are already required to pay the 6% service tax in Malaysia, while foreign providers paid a grand total of 0%, so now the digital sector in our country will be more fair and balanced for the local ones. The consumers might not like the idea of this tax but even with the extra 6%, Malaysians are probably still going to continue to subscribe, Netflix and chill."
"Malaysian parents can be sued for refusing to vaccinate their children. Here's why [Note: This article was originally written in December 2019.] With the end of 2020 coming near, at least we have one good news: Pfizer announced that they have found a Covid-19 vaccine that’s 90% effective in trials. Once it’s approved, most of us would probably be happy to take it. But there will be challenges ahead, as there are some Malaysians who either doubt or are against vaccinations. When we wrote this article last year, there was a recent outbreak of polio in Sabah, which is pretty much a comeback for the virus 27 years later. Malaysia was previously polio-free for close to 3 decades, until their first case last year. Due to the misinformation of vaccines, we currently have our own strain of anti-vaxxers in the country. There are a number of presumptions on how the virus returned—with some parties pinning it to religion and alternative medication that are sold locally. And due to the rise in the number of anti-vaxxers, children are at risk of developing vaccine-preventable diseases. Now here’s a scenario you might encounter (if you have children) from this current, growing pandemic: Your 4 year-old started pre-school a week ago. 7 days later, he’s down with a terrible fever and weakened limbs. His diagnosis comes back, and he now has polio. You’re shocked, as he has already gotten 3 shots so far. But the Dr goes on to tell you that the disease is contractable, as he has not received all his shots yet. You decide to investigate this, and find out that other children in the pre-school are suffering from polio too—the virus was spread by a child who was not vaccinated. There are 2 things you can focus on in this situation: The well-being and recovery of your child Suing those who did not vaccinate their children—which got your child sick The former is definitely a given as it’s the responsibility of a parent to care for their child. The latter however—is a lesser known path—which may give room to sue someone for not vaccinating their child. This is actually possible, but comes with certain conditions that need to be fulfilled. Before we get to how it can be done, we need to break this news first... There are no legal requirements to vaccinate children So here’s the thing, Malaysia does not have any legislations on mandatory vaccinations for children. However, there were calls to make vaccinations a mandatory requirement for school-going children. Basically, parents can refuse to have their children vaccinated, with no legal repercussions taken against them. In fact. there are also no restrictions on their children going to school. However, this may be a breach of the Child Act 2001. Section 31 of the Act states: “Any person who...having the care of a child— (a) abuses, neglects, abandons or exposes the child in a manner likely to cause him physical or emotional injury or causes...him to be...neglected, abandoned or exposed...commits an offence and shall on conviction be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding ten years or to both.” The Act essentially says that if a person responsible for the child, exposes him to eminent danger—he can be fined up to RM20,000, imprisoned up to 10 years or both. However, there have been arguments that this is quite far-fetched, since the Act doesn’t specify vaccinations and no cases has been brought to court so far. But if you’re a law-abiding parent whose child is suddenly struck by a vaccine preventable disease, you can consider suing the parents of the non-vaccinated child—if YOUR CHILD falls sick from contracting a vaccine-preventable disease. In a circumstance like this, you can file a civil lawsuit under tort of negligence. To briefly put it, you can claim money from the anti-vaxxer parents if your child falls sick from the disease too. [READ MORE: What is a tort?] You CAN sue anti-vaxxers for making your child sick Perhaps we should start by explaining how you can sue anti-vaxxers. Let’s start by making a distinction between criminal and civil lawsuits. Under criminal law, the aim is to punish an offender by charging him for his offence. But in civil law you can sue the wrongdoer, and be compensated for his wrongdoing. [READ MORE: What’s the difference between getting sued and getting charged in Malaysia?] So in this circumstance, you can file a lawsuit against an anti-vaxxer for making your child sick—by bringing a civil lawsuit in tort. But to sue someone under tort, you must first show that there has been an act or omission (failure to act) by the anti-vaxxer, which caused damage/injuries to you or your child. In this case, the anti-vaxxer can be said to have failed to act (vaccinate his child) that caused the injury to your child. This statement by a lawyer to MalayMail might help clarify things: “If a parent fails to disclose that their child is unvaccinated and at risk of contracting or transmitting a vaccine-preventable disease, and also fails to take steps to avoid putting others at risk of infection, they ought to be held to have breached a duty to those who are infected by the unvaccinated child.” – Ramesh Sivakumar to MalayMail. There is a duty of care (an element under Tort of negligence) for parents to vaccinate their child. If parents fail to do so, they may be in breach of their duty of care to both, their child and other people’s children. [READ MORE: What is negligence and how does it work?] Suing is possible, but tough Now that we know it’s possible to sue an anti-vaxxer for negligence, we should also note that it isn’t the easiest thing to prove. For starters, there have been no cases or precedence of cases in this nature in Malaysia. This is because all the elements of negligence must be proven in order to sue an anti-vaxxer parent. Here’s how a senior law lecturer put it in an interview with MalayMail: “...You must definitively prove it was a specific unvaccinated child who caused your child to get sick. If there is a possibility that many kids are unvaccinated in this case, then it becomes difficult to prove...This may then result in the damage that you have suffered being considered to be too remote — meaning that the damage was not a foreseeable...that specific parents’ decision to not vaccinate...” –Daniel Abishegam to MalayMail. In legal terms, the element of causation needs to be proven, to show that the anti-vaxxer parent was negligent towards your child. Causation is proven when there is a strong link between the anti-vaxxer parents’ action of not vaccinating their child, caused your child to contract the disease. If this is established, there’s a chance to win the lawsuit against the anti-vaxxer parent. On a sidenote, here’s an article on facts/myths of vaccines in Malaysia."
"5 ways KLIA secretly keeps travellers safe...that are hidden in 'plane' sight If you were thinking of CCTVs being one of the 5 points when you clicked into this article, you’re absolutely right! But before you close this article and accuse us of clickbait, what’s interesting isn’t the fact that KLIA has security cameras – even your local kedai runcit has them nowadays – but rather how their entire CCTV system works. What’s even more interesting is that the awesome people at Malaysia Airports Holdings Berhad, the people who run 39 airports around Malaysia, took us on a tour of KLIA and showed off all their safety and security measures (which are covered in this article)...including backstage access into their security room! Okay so we actually got permission to take that ONE picture on the condition that we censor the screens for security reasons, but this picture only shows 28 out of 2160 CCTV units that we saw in their control room, or officially known as the Airport Operations Control Centre (AOCC). We don’t really need to tell you how CCTVs can help in improving and ensuring security, but what we can tell you is... 1. KLIA was the first airport in the world to have a SEPARATE network for CCTVs AOCC senior manager Zulkifli Sidek tells us that KLIA’s CCTV system was purposely designed to run on a separate network, so that it’ll continue to run even if the other systems at the airport experience a disruption. This may not sound like a big deal by today’s standards, but if you consider that this was all thought of in the early 90’s (construction of KLIA started in 1993) when we were still pointing at CCTVs and exclaiming “Mummy look, a camera!”… you can see why it’s considered pretty forward thinking. This is all achieved via a linked system called the Info Broker. The Info Broker is the first linked networking system that was later introduced to airports all around the world—and it originated from our very own KLIA. Zulkifli has two assistant managers under him and, alongside four other managers, work to ensure that someone is always on hand 24/7 if a situation arises. Basically, they have to coordinate with other agencies to not just ensure traveller safety, but also to ensure a smooth experience at the airport. Because an airport is essentially made up of different parties like Customs and Immigration (they’re not actually part of Malaysia Airports) handling different checkpoints, CCTVs give the AOCC a bird’s eye view of the airport and allows them to immediately inform these agencies if they need to open additional counters or to respond to an emergency. 2. KLIA has a radar that can detect a single grain of rice Takeoffs and landings are the most crucial part of the flying process, and A LOT of technology and effort goes into making sure these crucial stages take off (pun intended) without a hitch. An important part of this process is the runway itself. Runways have to be completely free of debris, as something as small as a loose stone can damage the aircraft, causing bent/broken fan blades, engine failure, fires, wing damage, and even a puncture on plane tires... and that’s what Malaysia Airports says is the least severe. The worst thing a loose stone can cause is an aircraft accident. Any airport around the world keeps runways clean through regular runway inspections (where the debris would be picked up by hand) or through a runway sweeper machine that, well, sweeps the runway. At KLIA, runway inspections are conducted at least 4 times a day. But KLIA has something that allows them to detect and remove debris the moment it ends up on the runway, and it’s called a ‘High-precision foreign object debris detection system’ (FODDS). Using something called linear cell radar technology, the 6 towers constantly scan Runway 2 (it’s not available on all runways yet) for foreign objects as small as a grain of rice. What surprised us about the towers was that they were shorter than we imagined, and situated pretty far from the runway – about 200 meters by our estimate. KLIA is the first airport in the world to use the commercialized version of FODDS, which was first developed in Japan. There’s also another feature that you’d always see, but probably never thought twice about – the blinking lights on the runway. This is what they actually look like at ground level These are called Aeronautical Ground Lightings (AGL), and are used somewhat like a visual aid by pilots during landing and takeoff. These lights are able to blink in specific patterns and colors to relay visual signals to pilots because, without AGLs, pilots may not be able to see the runway or identify the runway they’re supposed to use – especially at nighttime or bad weather. There is also an additional safety operation called the Instrumented Landing System (ILS) which uses radio signals to help pilots with the alignment and landing of the aircraft. If you look at the picture closely, the orange pillars behind aren’t lights, but transmitters used to receive and send flight data from the plane. Aside from the AGLs, there’s another familiar safety feature that you probably never gave a second thought about: Do you recall that covered bridge thingy that connects the plane to the airport? Well it’s called an aerobridge (we never knew it had a name!) and it isn’t just there to make sure you don’t walk in the hot sun or heavy rain. The aerobridge is actually there because walking on the tarmac is a huge safety hazard, and there’s a risk of passengers colliding with airport vehicles or even planes (if you really wandered off) . We asked Malaysia Airports if anyone had tried messing with the controls (since it looks so tempting) and they told us that the console is actually password-locked, and the aerobridge cannot be moved until the Operator retracts the auto-leveller—a device that measures the level of the plane and adjusts the aerobridge’s height to match it – because falling 2.7 meters isn’t the kind of trip travellers look forward to. 3. KLIA’s method of chasing birds out of the runway is surprisingly low tech...but it works! Unfortunately there are no aerobridges for wildlife, and these will occasionally end up on the airport runway. Some of the wildlife appearing on the KLIA runways are birds, bees, monitor lizards, and snakes; while Malaysia Airports tells us that other airports have encountered tortoises and even a chicken egg (!!), which may answer the question of which came first. Birds and other flying insects (like a swarm of bees) are the more common problems. Birds, for instance, can get sucked into the propellers of an aircraft and get disintegrated – although larger birds can bend or break the internal blades, causing potential power loss. If they happen to collide with the nose or body of the plane, the resulting dents can affect the aerodynamics of the plane or damage sensitive equipment such as the radar antenna. Insects collisions aren’t as damaging as with birds, but the resulting mess can disrupt the airflow over the plane’s wings; which increases fuel consumption. There’s also a chance of the little critters getting stuck in the plane’s pitot probe, which makes the plane unable to measure wind velocity. Prevention is the main part of keeping wildlife out, and there aren’t any gadgets for this…just common best practices like: Managing the grass, trees, and drainage in and around the airport Removing potential food sources (including the use of covered bins and aircraft waste chambers) Checking and repairing perimeter fences Removing wildlife roosting areas But what we found amusing was how they keep the birds out, and that’s by hanging CDs. Yep, that thing that you see being done at nasi campur places? It actually works! However, the birds get used to it after a while, so the CDs are swapped with wind spinners and other distractors every few months. In the event that wildlife actually enters the area, KLIA has a Standard Operating Procedure (SOP) on Wildlife Hazard Management. This involves informing the Wildlife Department, who will then tell them how to remove and contain the animal without harming it. The animal is then handed over to the Wildlife Department for proper release. When encountering such situations, the airline’s engineering personnel will remove the carcass of the animal and make a report to the airport. If the animal dies on the runway, its remains will be removed and the incident will be recorded. Unfortunately, Malaysia Airports declined to comment on the fate of the chicken egg. 4. KLIA’s fire trucks aren’t your regular fire trucks Basically, every airport needs to have an in-house fire and rescue service, and will not be allowed to operate without one. Section 33 of Civil Aviation Aerodrome Operation Regulation 2016 states: “(1) An aerodrome operator shall establish and provide rescue & fire fighting facilities in the aerodrome in accordance with any requirements as may be determined by the Director General.” Now, if you’ve played Red Alert, you’re probably thinking that the truck above looks like an undeployed Mobile Command Vehicle. What it actually is, is a fire truck. These things are specially built for airports and aircraft, and one of the highlights of it is the huge turret at the top that’s capable of piercing the body of a plane to extinguish any fires inside. Fun fact: the vehicles aren’t yellow for branding purposes—it’s actually because research has shown that red is actually less visible at night, and colors such as yellow and white actually reduce the chances of accidental collisions. These fire trucks can store up to 12,000 litres in their tank, and shoot them out as fast as 5,000 litres/min. In comparison, the BOMBA trucks we usually see can only store up to 3,600 litres. In fact, the Airport Fire and Rescue Services (AFRS) team told us that, in some situations, fires can be completely put out without the firemen leaving the vehicle. Best part, we got to take a ride in one and see it in action. But all this equipment isn’t just there to impress. The AFRS in KLIA also has a bunch of requirements that they need to comply with, such as: Managing 3 fire stations (one on every runway) Keeping to a 3-minute response time in cases of emergency Provide 24/7 service Undergo weekly training in their training facility AFRS also specially trains staff for airport emergencies. They don’t just have weekly training sessions, but also undergo annual competency tests called the Fuselage Mock-Up. AFRS ensures that staff are equipped with up-to-date knowledge on the different types of services provided by the department, as well as procedures for different types of planes. Besides firetrucks, the AFRS also has two other vehicles – a hazmat (hazardous materials) containment unit, and a mobile command post. During an emergency, all the top personnel from the various agencies will meet in the mobile command post, and be driven to the relevant area. There, they will be able to view what’s happening through a live feed from the AOCC (the CCTV camera guys) and engage directly with their personnel if needed. We asked off the record how much these vehicles cost, and suffice to say, any one of these are worth more than what the entire Asklegal staff can earn in a lifetime. But what if there comes a time for passengers to protect themselves instead? 5. KLIA has safety and emergency kits throughout the airport These are probably something that you’ll never really notice until you need one, and they’re actually strategically placed all over the main KLIA terminal, as well as klia2 (yeah, klia2 is a terminal, not a separate airport). However, before we get into the items in the picture, we’d like to start with something you’d never think of as a “safety feature” – Walkalators Walkalators are pretty much standard fixtures in airports nowadays, but have you ever wondered why we need what’s essentially a flat escalator? For most people, it’s to solve the first world problem of having to walk a long distances while carrying luggage. For children, it’s something fun to race against. But for Malaysia Airports, it’s actually a safety precaution because walkalators are helpful for people with heart or other medical conditions that can be triggered by excessive walking. In fact, they inform us that the International Air Transport Association (IATA) has regulations that require walkalators be installed if passengers have to walk beyond an acceptable distance. There are currently 67 walkalators in KLIA, and 42 in klia2. Defibrillators (AED) This device goes by many names: an AED, Defibrillator or a heart starter. If you play Left 4 Dead, it’s known as the “REZ ME PLEASE OMG!!!” The AED’s main function is to restore a person’s heartbeat by delivering electric shocks directly to the heart, and is a literal lifesaver in medical emergencies and zombie attacks. In fact, one was used to resuscitate a passenger who had a heart attack in the KLIA main terminal. But we have to say this now before you go on to try it the next time you’re at KLIA: The defibrillator is best used by someone with sufficient knowledge on how to use it, and the airport staff are trained to use it. The storage box itself is outfitted with a buzzer and strobe lights to prevent people from using it as a makeshift taser. Fire extinguishers While the fire extinguishers meet the Fire Department (JBPM)’s guidelines to renew the safety certificates each year, the AFRS (airport fire guys from the point above) conduct daily inspections of each unit – basically having to inspect more than 2,000 fire extinguishers every day. If you’d like to know how to use one, click here. This article will be outdated by 2020. Malaysia Airports is constantly upgrading their airports and, in our preliminary discussions before the tour even started, we were given some spoilers on upgrades that are coming to KLIA, which means that we’ll probably be arranging another tour in 2020. One of these improvements are for body screenings, where the airport would soon be fully outfitted with body scanners to make screening more efficient and comfortable for travellers. The body scanners will be using something called a ‘milimeter wave technology’ which is somewhat similar to taking pictures of passengers, and Artificial Intelligence is used to automatically mark the location of suspected contraband. Unlike metal detectors, body scanners can also detect non-metallic weapons, Improvised Explosive Devices (IEDs), and other explosives in liquid, gel, or powder form. The best part is, the process only takes 2 seconds. KLIA will soon be implementing something called a single token journey, where you’ll no longer be required to show your travel documents at every checkpoint. Instead, you’ll only need to show your documents and flight ticket once at the check-in counter and be issued a digital token which will then be used at all other checkpoints. Malaysia Airports says that it’ll take a passenger only 5-6 seconds to clear each checkpoint, which not only reduces the wait time but the queues as well. And don’t worry about losing the digital token – it’s your face. All you need to do is to step up to the auto-gate and look into the lens of the camera. We were told that this technology will later be expanded to allow passengers to create tokens from their phones, so you can use it for check-in as well! Not just that, as we have another update in 2020: KLIA 2 now has a new immigration arrival hall which is 2 times its previous size! There are approximately 58 counters opened with priority lanes for disabled passengers and families with young children. This will definitely reduce queuing time for passengers at the airport. On top of all the tech and gadgets used to ensure the safety and security of the airport, there are also continuous training measures like full scale emergency/fire evacuation of the airport (that includes real passengers) and disaster scenario simulations. This is where any disaster scenario – fires, plane crashes, terrorism, etc—that could happen at an airport is recreated, complete with crisis actors. We won’t go into too many details here as it’s something that you’d need to see to fully understand…and you’re in luck! Our cousins at Cilisos have filmed a terrorist attack scenario at their latest practice session in Langkawi International Airport; and that video should be out pretty soon. In essence, it’s actually quite mind-blowing to see the round-the-clock work that airports and the agencies that work with them put into ensuring that passengers are always kept as safe as possible without inconveniencing or scaring them. And we know there are many more measures, because these are only the ones that they allowed us to include in the article."
"If PDRM arrests you, do you have the right to remain silent? Picture this: you’re out having dinner with your friends and suddenly, a group of men in blue – PDRM – come up to you, informing you that you are under arrest. You’re too puzzled and terrified to say anything, so you quietly follow them to the police station. There, you’re taken to a room and interrogated about a robbery that happened in a housing area nearby. You’re innocent, but again, because you’re scared, you don’t know what to say to them. Then you suddenly remember this one line that you’ve heard in every Law & Order episode you’ve watched: “You have the right to remain silent. Anything you say can and will be used against you in a court of law”. But that’s a crime show in the US, and you’re in Malaysia. Does Malaysia have the same right for you to remain silent or does it say otherwise? If you’re arrested, you’ll always have your basic rights First and foremost, it’s important for you to know that you actually have a long list of rights if you’re ever arrested in Malaysia. Just because you’ve been arrested, it doesn’t mean you are going to be immediately thrown in a lockup and left to be helpless. After all, you are still a human being and the presumption of you being innocent until proven guilty exists. So, as a person who has been arrested, the law does provide you with certain rights. Some of them are: the right to ask why you have been arrested two telephone calls after you’re arrested (unless the police believe that the calls might be detrimental to the investigation, eg: you might plan a way out) a right to get a lawyer to fight your case You can find more on your rights by reading The Red Book, compiled by The Malaysian Bar. [READ MORE: What are your rights if you get arrested by the PDRM?] Under these rights, you’ll also find the right to remain silent. This right basically means that you are under no obligation to answer when the police interrogates you. This is a legal right, so if you’re ever forced to answer, you can just say that you’re merely exercising a right that belongs to you. For reference, let’s look at the case of Omar bin Daud v Public Prosecutor, where the accused, Omar, was caught during an undercover drug operation. During the trial, the Prosecutor (person building a case AGAINST you) asked why Omar had not said anything when he was told what he was arrested for. The judge who who was deciding the case disallowed the question, stating that Omar was basically exercising his legal right. He said: “I disallowed that question because, in my view, in electing to remain silent the accused was merely exercising a legal right and therefore no inference of guilt could be drawn against him.” - Judge Edgar Joseph Jr But, why do we have the right to silence in the first place? Naturally, if we were accused of something we’re innocent of, we would want to say something to defend ourselves. The interesting thing is, this is exactly why we need the right to remain silent. The right exists so that you don’t confess to a crime you didn’t commit It’s understandable if you were arrested and interrogated and didn’t say a word. However, what if you’re already being tried in court and you still don’t want to answer questions? Would it make sense to invoke your right to remain silent even at that point? Well, it depends on what questions you’re being asked. Let’s look at Section 112(2) of the Criminal Procedure Code to shed some light on the rationale behind this right. Such person shall be bound to answer all questions relating to the case put to him by that officer: Provided that such person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture. So, what it basically means is this: you should answer a question a police officer asks you UNLESS answering that question has a chance of making you look guilty or force you to accept the charges (accusation) against you. A simple example of such a question would be: Did you set fire to your office? A direct question like this that asks you whether or not you committed a crime has the chance of exposing you to a criminal charge, and so, you would be under no obligation to answer it. The right to remain silent is also in a way related to the right to a lawyer. Once you get a lawyer, your lawyer will advise you on what you should and shouldn’t say, so that you don’t land in any more trouble. If you remember well from all those crime shows you watched, along with the warning that the accused has the right to remain silent, you will also hear something along these lines: “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you”. The bottom line is this: the right to remain silent is given to you to protect yourself from being wrongly incriminated until you are able to speak to the lawyer who will handle your case. There are times where you will have to speak up We now know that Malaysian law allows you to remain silent from the time you are arrested and even when you are taken to court. We have seen this in Section 112(2) of the Criminal Procedure Code, and it can also be found in other laws such as Section 37A of the Dangerous Drugs Act 1952 and Section 75 of the Internal Security Act 1960. But sometimes this may not be an absolute right. For one, there are also some laws that expressly do not give you the right to remain silent, such as the Child Act 2001 and the Malaysian Anti-Corruption Commission Act 2009. If you have been arrested for committing a crime under these Acts, you will have to answer any question asked by a police officer or judge, even if it can incriminate you. The other thing to consider is that you may be at a disadvantage for choosing to stay silent throughout your arrest and trial. While you cannot be automatically considered to be guilty for choosing to be quiet, if you don’t defend yourself, there is a higher chance of you getting convicted since you are not refuting any claims. All the Prosecutor has to do is to prove the case against you beyond reasonable doubt (basically with no room for doubt, 100% true). If he is able to do so, and you didn’t say anything to defend yourself, you will most likely be convicted. So always remember, the reason for the right to silence is to ensure that you don’t end up telling the police the wrong thing, because whatever you say can be used against you. But when it is necessary, make sure you speak up for yourself."
"Malaysians CAN now be fired for ""blue-ticking"" company WhatsApp messages In the midst of writing this article, our writer isn’t sure if WhatsApp helps companies connect better or...creates more lawsuits. Previously, we wrote about how a Malaysian employee got fired for leaving her company WhatsApp group—click here to read. Now this time around, another employee was fired for blue-ticking his company’s WhatsApp messages. With WhatsApp being one of the most common means of communication, most companies create WhatsApp groups among employees—or personally message text them via the app, as an alternative to emails. The “blue-tick” feature on WhatsApp indicates that a message has already been read by the person on the receiving end. In the context of employment, it might now seem unfair for an employee to be fired for not replying his boss’ texts. Some of you might even say it’s a personal right to ignore texts or calls. Before you feel like Malaysian employee rights are draconian, there is more to this story than meets the eye… The employee didn’t just blue-tick his boss Companies cannot fire employees for the fun of it, UNLESS there’s a concrete reason to do so. In Megat Adzwan Shah bin Shamsul Anuar v Malaysia Professional Accountancy Centre, MyPAC (the company) fired Megat (the employee) for more than just blue-ticking his boss’s messages. In other words, you can simply say there was a chain of events that eventually led to him being fired, when he didn’t reply to his boss’ texts. Let’s look at some of the reasons that led to the last straw for the employee in this case. For starters, there were complaints about his poor performance and misconduct at work—which pretty much brought his employment at MyPAC to a halt. Among the reasons he was fired was: His attitude to his work was unsatisfactory He was frequently late to work He failed to complete a task given to him Failed to improve the quality of his work His dismissal from work was not just because he didn’t reply to the messages sent by his boss, but the other factors that added up to it. The company also gave him reasonable time (3 months) to improve his performance at work. This was done to help him become a full-time, confirmed employee in the company. However, he wasn’t making any progress despite getting an extension on his probation period. 3 months on, his employment contract was ended by the company—which was followed by a lawsuit from the employee’s end. [READ MORE: My boss just fired me for no reason, what can I do now?] But the court agreed with the company to fire him As we mentioned earlier, companies can be in breach if they fire an employee without a proper reason. And since this employee is still under probation, the court had to consider several things to see if the dismissal was fair. [READ MORE: Can Malaysian companies simply fire staff while they’re still under probation?] Generally, companies cannot fire an employee on probation, without a valid reason. Let’s take a moment to look at Mak Teck Mun v Ginova Marketing Sdn Bhd, where an employee was fired before his probation period ended. He then subsequently went to sue his company, and won the case based on these grounds set by the court: ""... appointment on probation for six months gives the employer no right [to] terminate the service of an employee before six months had expired except on the ground of misconduct or other sufficient reasons in which case even the services of permanent employee could be terminated. At the end of the six months' period the employer can either confirm him or terminate his service, because his service is found unsatisfactory."" Basically, an employee on probation can be fired if he does not perform his duties properly or is said to have committed a gross misconduct. In our current blue-ticks case, the Industrial court ruled that the employee had not performed his duties properly, which was enough to justify the dismissal. But this wasn’t the only reason he got fired. The employee also took loooong lunch breaks and didn’t work 9 hours a day which is a requirement in the course of his employment. To add more oil to the fire, the employee took an unrecorded leave—which made the company doubt his honesty… The company and court did not find his reasons...reasonable Basically, the employee failed to go to work on the 21st July 2017. His boss then texted him via WhatsApp, asking him if he was coming to work that day. The employee did not reply the message, as he claimed to have suffered from acute gastritis—which made him unfit to reply the text message. He further went on to say that he misplaced his phone for a few days, after falling sick. But here’s where the boss—like an angry girlfriend—decided to show the court screenshots which revealed that the employee blue-ticked his boss’ texts that day. When this piece of evidence was brought to court, the employee changed the version of his story, saying his nephew was playing with his phone. This gave the court enough to now think that the employee had an idea of where his phone was—striking out his claims that he had no idea where his phone was. The court then established that the employee may not have been honest and legitimate with his claims, which brought upon his dismissal. Therefore, the court agreed with the company’s decision to fire the employee on the grounds of poor performance and misconduct—which was partially due to him blue-ticking his boss’ texts. WhatsApp blue-ticks can be a proof of receipt The read receipt on WhatsApp is an indicator that someone has read the message sent. In fact, WhatsApp messages are also admissible in court as evidence. The Malaysian high court laid down 2 criterias in a previous case, that must be met in order to use WhatsApp messages in courts: The party that admits WhatsApp texts as evidence must ensure the messages are in relation to the case and proceedings The evidence must be submitted as documents produced via computer (ie; must be certified as per the Evidence Act 1950). Basically, you can use WhatsApp as evidence in court so long as it fits the criteria stated above. And although it isn’t a legal obligation to reply your boss’ texts, but it’s perhaps common courtesy to reply important messages. Or...you could just go to the Settings bar on your WhatsApp, click on Account then Privacy, and turn off your Read Receipts to avoid a lawsuit with your company :P"
"5 jenis cuti yang ada di Malaysia (dan anda akan dibayar kalau ambilnya) [Click here for English version] Salah satu benda paling best bila mula bekerja mestilah sebab dapat gaji! Disebabkan rasa teruja dapat kerja baru tu, korang pun periksalah kontrak pekerjaan dengan tengok gaji berapa, tandatangan dan tak pernah tengoknya lagi. Kalau korang tengok betul-betul pada kontrak tu, ia sebenarnya bukan nyatakan berapa gaji korang je, tapi juga termasuklah berapa korang kena bayar bila bercuti, cuti sakit, jumlah cuti tahunan dan sebagainya. Tapi korang tahu tak, kontrak pekerjaan tu kadang-kadang tak menggambarkan apa yang undang-undang nak? Tapi sebelum tu, jom kita tahu dulu macam mana “pekerja” ditafsirkan dalam undang-undang – Akta Kerja 1955. Akta ni menggariskan beberapa kriteria “pekerja”, tapi ada dua yang penting iaitu: Sesiapa yang upahnya tidak melebihi RM2,000 sebulan di bawah kontrak perkhidmatan dengan majikan; atau Mana-mana pekerja manual, tanpa mengira gaji bulanan, memasuki kontrak perkhidmatan dengan majikan, Satu lagi yang korang semua kena tahu adalah Akta Kerja 1955 ni hanya terpakai di Semenanjung Malaysia dan Labuan, manakala amalan pekerjaan di Sabah dan Sarawak dikawal oleh ordinan buruh masing-masing. Oleh itu, artikel ini cuma membincangkan mereka yang berada di bawah senarai perkhidmatan dalam Jadual Pertama Akta Kerja, dan yang hanya berada di Semenanjung Malaysia (dan Labuan). Dan sebab itulah, korang kena tengok baik-baik kontrak pekerjaan, untuk pastikan yang terma dalam tu, terutamanya tentang cuti sama atau lebih baik dari yang diperuntukkan dalam Akta Kerja. Sekarang ni, jom kita tengok cuti-cuti yang pekerja di Malaysia selalu ambil dan kalau korang berhak dapat upah sebab ambil cuti tu. 1. Cuti tahunan – berbayar! Sebagai seorang pekerja, korang berhak mendapat sejumlah cuti tahunan berbayar sebagai tambahan terhadap hari cuti dan cuti berbayar! Berdasarkan Seksyen 60E(1) Akta Kerja 1955, korang berhak mendapat cuti tahunan berbayar seperti mana yang dinyatakan di bawah: Bekerja kurang dari 2 tahun: Tak kurang dari 8 hari setahun. Bekerja antara 2 – 5 tahun: Tak kurang dari 12 hari setahun Bekerja untuk lebih 5 tahun: Tak kurang dari 16 hari setahun. Jadinya, korang mesti bekerja sekurangnya 12 bulan dengan majikan yang sama untuk dapat cuti tahunan. Dan kalau korang baru je bekerja dengan syarikat dan fikir nak tinggalkan kerja tu sebelum habis 12 bulan, jumlah cuti korang akan berdasarkan pro-rated mengikut bilangan bulan yang korang bekerja. Menggunakan jumlah 8 hari sebagai contoh, ini bermakna korang akan dapat 0.66 hari sebulan. Kalau korang tinggalkan syarikat lepas bekerja 6 bulan, korang akan dapat pro-rated 4 hari (0.66 x 6) cuti bulanan. Bagaimanapun, kalau korang bercuti tanpa izin majikan atau tanpa alasan yang munasabah untuk lebih 10% dari tahun bekerja, korang tak berhak mendapat cuti tahunan. Seksyen 60E Akta Kerja 1955 menyatakan (tak ada terjemahan rasmi, diterjemah oleh Asklegal): “...di mana seorang pekerja tidak hadir dari kerja tanpa izin majikannya dan tanpa alasan yang munasabah selama lebih daripada sepuluh peratus hari bekerja selama dua belas bulan perkhidmatan berterusan yang berkenaan dengannya haknya untuk cuti sedemikian terakru dia tidak boleh berhak mendapat cuti sedemikian."" Hal ni seterusnya membawa kita kepada “alasan munasabah” yang selalu kita guna… 2. Cuti sakit – berbayar! Sebaik mana pun korang bekerja, ada masanya korang akan rasa tak sihat dan kena berehat. Dengan adanya MC dari klinik panel (atau pengamal/pegawai perubatan berdaftar lain kalau syarikat korang tak ada klinik panel), korang berhak mendapat sejumlah cuti sakit dibayar bergantung kepada berapa lama korang dah bekerja untuk syarikat: Bekerja kurang 2 tahun: 14 hari setahun. Bekerja antara 2 – 5 tahun: 18 hari setahun. Bekerja untuk lebih 5 tahun: 22 hari setahun. Seksyen 60F(3) Akta Kerja 1955 menyatakan: ""Majikan hendaklah membayar pekerja kadar gaji biasanya untuk setiap hari cuti sakit itu dan seorang pekerja pada kadar gaji bulanan hendaklah dianggap telah menerima cuti sakitnya jika dia menerima dari majikannya gaji bulanannya, tanpa pengurangan berkenaan dengan hari-hari di mana dia berada di cuti sakit ... "" Di samping itu, Seksyen 60F(1)(bb) pula memperuntukkan yang korang berhak mendapat cuti sakit selama 60 hari dalam setahun, kalau korang perlu masuk ke hospital. Tapi, walaupun korang dah dapat MC, jangan lupa untuk maklumkannya kepada majikan yang korang tak dapat datang kerja hari tu. Kalau korang gagal berbuat demikian dalam tempoh 48 jam, korang akan dianggap tak hadir tanpa izin dan sebab munasabah – tak kisahlah ada MC atau tak. 3. Cuti umum – berbayar Seksyen 60D(1) Akta Kerja 1955 ada kata – sebagai seorang pekerja, korang berhak mendapat cuti berbayar untuk sebelas (11) cuti umum yang telah digazetkan (termasuklah Hari Kebangsaan, Hari Keputeraan Yang di-Pertuan Agong dan Hari Pekerja) dan mana-mana hari yang dijadikan cuti umum di bawah Seksyen 8, Akta Hari Kelepasan 1951 (macam cuti sebab memang menang sukan tertentu): “Menteri boleh, melalui pemberitahuan dalam Warta atau dengan apa-apa cara lain sebagaimana yang difikirkan patut, menetapkan, berkenaan dengan Semenanjung Malaysia, atau Wilayah Persekutuan atau, selepas berunding dengan Pihak Berkuasa Negeri, berkenaan dengan sesuatu Negeri, suatu hari untuk diterima sebagai hari kelepasan am...” Memandangkan sesetengah cuti di bawah Akta 1951 ni mungkin diumumkan secara mengejut, sesetengah majikan mungkin tak dapat ambilnya sebagai cuti umum kerana keperluan operasi atau urusan mustahak. Dalam kes ni, mereka boleh minta pekerja bekerja pada hari cuti umum dan beri hari lain sebagai ganti cuti umum yang berbayar. [BACA LAGI: Do I get extra pay if I work during a public holiday?] 4. Cuti bersalin – berbayar! Di bawah Bahagian IX (Perlindungan Bersalin) Akta Kerja 1955, setiap pekerja wanita berhak mendapat tidak kurang daripada 60 hari cuti bersalin berbayar berturut-turut kalau dia dah bekerja sekurang-kurangnya 90 hari untuk majikannya dalam tempoh 4 bulan yang membawa kepadanya tempoh berpantang. Sepanjang tempoh ini, pekerja wanita berkenaan berhak menerima elaun bersalin (yang pada asasnya gaji bulanannya) yang mesti dibayar tak lebih hari ke 7 dalam bulan itu. [BACA LAGI – Can Malaysian bosses fire you for being pregnant?] Akan tetapi, walaupun kerajaan ada umumkan untuk menaikkan cuti bersalin dari 60 hari ke 90 hari untuk sektor swasta, yang sekaligus membuatkannya sama dengan sektor kerajaan – Akta Kerja masih lagi belum dipinda untuk hal ini. Ini bermakna buat masa sekarang, majikan sektor swasta hanya boleh digalakkan untuk memberikan cuti bersalin selama 90 hari kerana pelaksanaannya masih lagi tak ketat, sehingga undang-undang itu diubah dan dilaksanakan. 5. Cuti sebab dipenjara atau mahkamah – tak berbayar! Kitorang betul-betul harapkan yang perkara macam ni tak akan berlaku kepada korang, tapi kalau korang tak datang kerja sebab kena tangkap atau kena datang ke perbicaraan mahkamah, korang tak boleh tuntut upah untuk cuti yang diambil. Berdasarkan Seksyen 23, Akta Kerja 1955: ""Upah tidak boleh dibayar kepada atau boleh diperolehi semula oleh mana-mana pekerja dari majikannya untuk atau atas sebab mana-mana hukuman pemenjaraan yang dilakukan olehnya atau untuk apa-apa tempoh yang dibelanjakan olehnya dalam tahanan... atau untuk atau disebabkan oleh apa-apa tempoh dibelanjakan olehnya untuk pergi, menghadiri sebelum atau kembali dari mahkamah selain daripada sebagai saksi bagi majikannya.” Ini pada asasnya bermaksud, pihak majikan tak perlu bayar upah kepada pekerjanya yang tak datang ke tempat kerja kerana dipenjara atau kerana dia kena pergi ke mahkamah, kecuali jika ia untuk mewakili majikannya. Gunakan, tapi jangan salah guna Walaupun Akta Kerja menjamin yang korang akan dapat juga upah bila bercuti untuk sebab tertentu, korang juga sebenarnya boleh dapat masalah kalau salah guna cuti-cuti yang dah diberikan. Tapi kalau korang baru je balik dari bercuti (dengan ambil cuti tahunan) dan dapati yang gaji korang tu berkurang, korang bolehlah berbincang dengan majikan kenapa jadi macam tu. Kalau dah berbincang pun masih tak jalan, korang boleh bawa masalah tu ke Mahkamah Perusahaan. [BACA LAGI: What can you do if your boss refuses to pay you?] [BACA LAGI: What can you do if your boss fired you for no reason?]"
"You now have more time to sue your developer in Msia for building defects. Here's why Most property owners have experienced this: you happily move into your new house/office but after a few years, cracks begin to form on your walls. So you call up a handy worker to have a look, and he tells you that the previous contractor did a poor job. Frustrated, you start ranting/complaining/cursing as he patches up the crack. Tough luck, if only the cracks appeared before I got the keys to the house, you think to yourself. There’s no way to sue my developer or contractor now. Actually, there was always a law which allowed you to sue for such cracks/defects. This law gives 6 years to sue your developer starting from the time the defect first formed. Note that the “6 years” mentioned is the age of the defect, NOT the age of your property. A newly implemented law has improved on this time limit by giving property owners an extra 3 years to sue if the original 6 years is ending. So if you find a 6-year-old defect here, you’d still have 3 years to sue. And it covers all types of properties, so this law has got you covered whether you own an apartment, a house, an office or any building for that matter. Sometimes you only discover the damage when it’s too late Previously, property owners could not sue if the defects were more than 6 years old, even if they only saw it for the first time. Section 6 of the Limitation Act 1953 says: “6. (1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued...” The 6-year period had certain issues because some defects (especially cracks) start internally and cannot be seen in the initial years. By the time it surfaces on the wall, the 6 years might have expired. To address this, Malaysia introduced Section 6A into the Limitation Act through the Limitation (Amendment) Act 2018. So if your home has a crack that is 6 years old today in 2019, then you would have until 2022 to sue (2019 + 3 years). But, just as how you would need specific ingredients to bake a cake, you’ll need to satisfy certain requirements before you can start suing. You need to see more than the cracks on the wall Before being able to sue for defects, you must first have two ingredients. Under Section 6A(4)(a) of the Limitation Act, it says: “...any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such action...” So the key elements are knowledge required and a right to bring such action. Knowledge required (i) you see it – This is when you see a crack, a plumbing problem, low water pressure etc; and (ii) you know who built/certified your property – This generally means the developer or contractor who built your place, or certified that it’s safe. If you bought the property from someone else, then you’ll have to find out who was in charge. But knowledge doesn’t just mean seeing the defect in your own house because Section 6A(4) of the Limitation Act goes on to say: “(b) “knowledge required ... means... ...(iii) ...knowledge which the plaintiff...might reasonably have been expected to acquire— (A) from facts observable or ascertainable by him; or (B) ...with the help of appropriate expert advice which is reasonable for him to seek...” So apart from seeing the defects, the law demands you to hire an expert to check your property if you suspect that there could be such defects. This means that if all of your neighbours are having plumbing problems, you are expected to get an expert to check the plumbing system in your house. If you don’t, the improved law will not give you an extra 3 years. Right to bring action The right to bring action simply means the right to sue. Since it’s a property defect, only the property owner can sue, which means that anyone who has his/her name in the land title. If you’re a tenant, inform your landlord about the defect so that s/he can take action. Does everyone get 3 years to sue? The answer is: like your relationship, it’s complicated. If you want to avoid the explanation, just skip right to the table below. Do note that the table just gives an estimation because calculating the exact amount of time is more tedious as it includes counting the months and days as well. If the defect is 3 years or below, it will follow the old law’s 6-year period. This means that you have a minimum of 3 years and up to a maximum of 6 years to sue, depending on the precise age of the defect. The reason that the old law still applies here is because you have more time to sue under the old law compared to the new law. The new law kicks in when the defect is 4-12 years old. You’ll have 3 years to sue if the defect is in this range. But the time you have left to sue decreases when the age of defect is more than 12 years. This is because Section 6A(3) of the Limitation Act says: “...no action shall be brought after the expiration of fifteen years from the date on which the cause of action accrued.” Basically, any defect which is 15 years old or older will not be entertained. Age of defect by year(s) How many years do you have to sue? <1 6 1 5 2 4 3 3 4-12 3 13 2 14 1 15 TOO LATE If you’re conned, you get more than 15 years Despite the 15-year limit, there are two exceptions. If the defects were hidden from you by fraud, or by mistake, you can sue even if you found it after 15 years. Section 29(2) of the Limitation Act provides that: “...the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake...” What is fraud? Fraud is when an expert found a defect in your house but hides it from you, and certified that everything is “good”. Because of this, you did not know about the defect at all. And what is a mistake? A mistake is when an expert checks your and your neighbour’s houses, then mistakenly gives you the report of your neighbour’s house instead of yours, which states that everything is fine when it is not. So in these two circumstances, even if you discovered the defect 30 years later, you are given 6 years to sue, starting from the time you find out about the fraud or mistake. So even if we have more time to sue, that doesn’t mean that we should take our time to do so. Consult a lawyer and let him/her walk you through the process."
"Can lie detector results of Anwar's accuser be used as evidence in court? In crime movies, if the police manage to arrest the suspect, you would most likely see him being interrogated after that. When the suspect doesn’t want to confess or share any information, the police might have to find other ways to get them to talk. Or, the suspect might deny the crime but the police need to ensure that he’s telling the truth. In some movies like these, the police would have to use a lie detector to see if the suspect is lying or being honest. He will be asked questions while attached to a lie detector machine that records these answers. If you haven’t seen one, this is what a lie detector (also known as a polygraph) looks like: Earlier this week, Anwar Ibrahim’s former research assistant, Yusoff Rawther, had taken a lie detector test. Yusoff had filed a police report some time back stating that Anwar had sexually assaulted him in October 2018. To further back up the claims in his police report, he underwent the test. Thus far, lie detector results have been used to help in police investigations. But, can these results be used as evidence in court? Before that, let’s take a look the criteria needed for evidence to be accepted. Evidence needs to be credible You might think that courts would be happy to accept any evidence presented to them if it would help them decide on a case in a more efficient way. But this actually isn’t true. There’s a whole statute (set of laws) that govern the subject of evidence in Malaysia. Under these laws, we can find that not everything presented in court can count as evidence. Section 5 of the Evidence Act 1950 states: Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. This sentence above might look super confusing to you, but it simply means this: Evidence accepted by courts must be actual facts about the incident AND it has to be relevant to the case. For example, say you are a witness of a crime and you’re giving evidence in court. When recalling the details of the crime, you cannot exaggerate or change the facts of the incident. You would tell it as it is, and this can be proven by a CCTV recording or something the suspect left on the crime scene. You would also have to give evidence that is relevant to the case at hand. You would not be talking about what you were planning to have for breakfast that morning. You might, however, explain why you were near the crime scene that day. Evidence can be given in many forms, such as a confession, a statement, a document and so on. But for it to be accepted as credible evidence by a court, it would have to satisfy the criteria stated above. So, can the results of a lie detector be counted as credible evidence? The law doesn’t really say anything about this Lie detector results are printed as graphs and this may be considered as physical evidence that is in the form of a document. For those of you who don’t know, lie detectors or polygraphs monitor changes in your heart beat, breathing and even perspiration rates. An increase or spike on any of these are meant to show nervousness which in turn, may point to guilt. But this is exactly the problem with it. While lie detectors have helped pinpoint criminals and complete investigations, there’s also a huge risk in assuming that if someone is nervous, they are guilty. A person can be nervous for various reasons and many studies have shown that lie detectors don’t really detect lies. They merely record changes in your body and behaviour and while this can help substantiate a claim that someone is or isn’t guilty, it cannot be solid evidence that the person is indeed guilty. On the other hand, just because there isn’t a spike or change in the readings, it doesn’t mean that someone is innocent. People have been able to manipulate a lie detector and so, lie detector results aren’t the best way to prove guilt or a lack of it. This is the reason that Malaysian courts have yet to allow lie detector results as evidence in court. This isn’t to say that they would totally refuse to accept it, but whether or not they want to is at their discretion. Although Yusoff Rawther was willing to take the lie detector test, his own lawyer said that Yusoff is aware that the results may not be used as evidence. Yusoff is also fully aware that similar to other forensic tests, there are no specific provisions of law which provide for the conduct of polygraph tests in criminal investigations, but believes that the availability of such technology within our jurisdiction should be put to use in this investigation to support his allegation, independent from the voluntary statutory declaration which he affirmed on Nov 19, 2019, -Haniff Khatri Abdulla, Yusoff Rawther’s lawyer So, even though there are no laws for now that state a court should or shouldn’t allow lie detector results during a trial, there is a chance that they might allow if the need arises or it is vital to the case. Lie detectors still stand a chance Although the current stance is that lie detectors aren’t solid evidence to be used in court, as mentioned above, the court can chose to accept it for a particular case if it sees fit. But that isn’t all. In October 2018, our Chief Justice, Tengku Maimum said several petitions/ proposals have been made to change the stand Malaysian law has on this matter. Studies have also been conducted to see whether lie detector results can be used as credible evidence in Malaysian courts and how this might change our current laws. While most legal systems around the world don’t easily admit lie detector results and some completely don’t accept them, some countries do think they are good enough to be used as evidence. Whether Malaysia will soon be on this list depends on what the legal arm of our government decides is best for the law of evidence in our country."
"Why is the statutory declaration (SD) on Najib and Anwar taken so seriously? If you’re reading this right now, then you’re probably no stranger to the recent accusation made against Najib Razak, in relation to the murder of Mongolian model Altantuya, that was made by Azilah—the person sentenced to death for killing Altantuya. But this isn’t the only accusation made on a politician, that came out of nowhere—Anwar Ibrahim was accused of sodomizing his former research officer, Yusoff Rawther a couple of weeks ago. Apart from the fact that they’re both politicians, Najib and Anwar share another similarity now: There were accusations made against them in the form of statutory declarations (SDs), accusing them for the crimes above. But this isn’t the first time a formal, written declaration sent the media into frenzy. You might remember how this one judge allegedly revealed how corruption spread through Malaysian courts via an affidavit. This is similar to that, but SDs come with a few differences... SDs are claims made...without evidence If you’re buying a house for the first time, you’d probably have to sign a statutory declaration. Think of it as written proof to confirm that you’re a first time house buyer. You can normally get this done through a Commissioner for Oaths. [READ MORE: What is a Malaysian Commissioner for Oaths and what do they do?] But SDs aren’t just regular written statements. The difference between this and a Facebook post is that its filed under oath, and may be used in court. Here’s how the President of the Bar Council put it: “A Statutory Declaration is commonly used to allow a person to declare something to be true for legal requirement when no other evidence is available. – Datuk Abdul Fareed Abdul Gafoor via The Star. Basically, it is used to declare a fact/statement, which has no proof to back up that it existed in the first place. To ensure people don’t make false declarations, there is even an Act called the Statutory Declarations Act 1960. The Act goes on to provide penalties which are mentioned under Section 199 of the Penal Code: “Whoever, in any declaration made or subscribed by him...is bound or authorized by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false...touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.” In essence, the Act states that those who make a false SD will be charged for perjury (lying under oath) and can be jailed for up to 7 years. So if the court finds Yusoff or Azilah to be lying in their SDs they can be charged for a crime. Now if you’re a lawyer or you happen to read our previous article on affidavits, you might be able to tell the difference between SDs and affidavits. But if you can’t, don’t sweat. Affidavits are basically sworn statements too—but the distinction comes to play on how it’s used. Affidavits can only be used in court to disprove facts made by the other party. Now that we know how SDs work, how exactly is this going to implicate Najib, Anwar or their accusers? The court can use the SD to charge Najib and Anwar Just because you made a SD, doesn’t mean it’ll be used in court. The court will decide if it wants to use the content in the SD to evaluate the case. So the current SDs that are pointed at Najib and Anwar may or may not be used prior to the investigation. The authorities will first look into both the SDs, to see if it can be used to help the ongoing investigations. If the information in the SDs are valid and can be submitted as proof, the authorities must investigate further to find any new evidence. As for now, there’s no legal action being taken YET on Anwar and Najib. However, Anwar Ibrahim has filed a civil suit claiming the SD against him was defamatory. So for now, the SDs will be investigated to prove its validity. However, if there is no strong evidence in either case, then the accusers Azilah and Yusoff can be charged with perjury—and the claims made in the SD will not apply."
"6 benda yang sebenarnya dilarang bawa keluar dari Malaysia! [Click here for English version] Cuba korang bayangkan senario ni – korang seorang pelajar Malaysia yang nak sambung belajar di luar negara. Korang risau nanti rindu dengan Malaysia, jadinya korang pun isilah beg korang tu dengan makanan-makanan dan barang-barang Malaysia. Korang tak tahu yang ada barangan ni sebenarnya dilarang dari dieksport, dan pegawai kastam pun tahan korang masa di lapangan terbang. Disebabkan adanya kemungkinan jadi senario macam ni, kitorang pun tengoklah Perintah Kastam (Larangan Mengenai Eksport) 2012 dan di sana banyak barangan yang kitorang jumpa dan tak sangka yang ia sebenarnya dilarang dari dieksport keluar dari Malaysia. Tapi sebelum bincang lebih lanjut, kita kena tahu dulu tentang... Siapa yang kawal import dan eksport di Malaysia ni? Di Malaysia, kita ada beberapa badan yang bertanggungjawab untuk mengawal apa je yang keluar dari negara. Dan salah satu badan utama tu adalah Jabatan Kastam Diraja Malaysia (KASTAM) dan Kementerian Perdagangan Antarabangsa dan Industri (MITI). Tugas utama diorang adalah mengawal import dan eksport di Malaysia dan ada kuasa untuk menyiasat, dan juga menahan sesiapa yang terlibat dalam jenayah penyeludupan masuk ke negara atau keluar dari negara. Terdapat 2 kategori kawalan barangan untuk eksport, iaitu: Barangan yang dilarang secara mutlak untuk dieksport ke semua negara, contohnya – telur penyu, rotan, senjata dan bahan berkaitanya, petroleum dan produk petroleum Barangan yang memerlukan lesen eksport dan tertakluk kepada kawalan kerajaan, contohnya ternakan dan produk ternakan, bijirin, mineral dan bahan toksik atau berbahaya. Akta Kastam 1967 dan Akta Perdagangan Strategik 2010 memperuntukkan penalti kepada kesalahan kawalan eksport ni. Akta Kastam menyatakan: “Hukuman penjara antara dua tahun dan penjara seumur hidup, bergantung kepada keseriusan dan jenis kesalahan... dan denda antara 10,000 ringgit dan 30 juta ringgit.” Dengan hukuman yang berat dan disebabkan tak nak kena penjara suatu hari nanti, jadinya kitorang akan senaraikan beberapa barangan larangan yang korang semua juga kena tahu. Dan mungkin kita boleh mula dengan… 1. Rotan Kalau korang jenis yang nakal dan selalu buat masalah masa kecil dulu, korang tahulah apa dia benda ni. Sebenarnya, rotan secara mutlaknya dilarang dari dieksport keluar dari Semenanjung Malaysia. Disebabkan permintaan tinggi terhadap rotan dari banyak negara termasuk Eropah, dari bahan mentah sehingga menjadi produk siap, seperti perabot, kraftangan dan sebagainya. Makanya, kerajaan memperkenalkan larangan ni bagi merangsang industri berasaskan rotan di Malaysia dan bagi meningkatkan penjualan produk rotan siap untuk dieksport dari negara ini. Dengan cara ni, ia menghalang penuaian yang tidak terkawal, dan mewujudkan pasaran untuk produk tempatan. Jadinya, ni tak bermakna yang perabot atau bakul berasaskan rotan tak boleh dieksport – tapi ia lebih kepada bahan mentah yang dianggap sebagai kesalahan untuk dieskport. 2. Kerang Mungkin sebab inilah harga Char Koey Teow dan Nasi Lemak Kerang asyik naik je setiap tahun. Tapi, kalau korang nak tahu sebab kenapa harga kerang ni mahal, ia sebenarnya kerana spesis ni semakin terancam. Berdasarkan kajian dari Institut Kajian Perikanan, 3 negeri pembiakan kerang utama dah terkesan dengan pencemaran, yang mengakibatkan kejatuhan tuaian yang ketara selama bertahun-tahun. Disebabkan hal itu, had eksport dah diperketatkan dan permit diperlukan untuk melakukannya. Berdasarkan Seksyen 40, Akta Perikanan 1985: (5) Suatu permohonan bagi permit untuk mengimport dan mengeksport apa-apa ikan hidup hendaklah dibuat mengikut Akta Perkhidmatan Kuarantin dan Pemeriksaan Malaysia 2011 Oleh itu, permit diperlukan untuk membawa kerang keluar dari Malaysia. Korang boleh buat permohonan permit tu dari Jabatan Perkhidmatan Kuarantin dan Pemeriksaan Malaysia. 3. Orkid Kalau korang ada girlfriend yang duduk di luar negara dan korang nak bagi bunga kepadanya, korang kena periksa dulu bunga jenis apa yang dilarang dari dieksport. Ada banyak tumbuhan yang dilarang untuk dieksport dari Malaysia, dan salah satunya adalah orkid. Larangannya ada di bawah Akta Kastam yang dibaca serentak dengan Seksyen 2(1), Akta Perdagangan Antarabangsa Mengenai Spesies Terancam 2008. Akta ini juga membawa kepada kesan yang lebih besar di bawah Seksyen 10 kerana kesalahan mengeksport spesis orkid yang dinyatakan dalam jadual: “Mana-mana orang yang mengimport atau mengeksport mana-mana spesies terjadual tanpa permit melakukan suatu kesalahan dan boleh, apabila disabitkan – (a) …didenda tidak melebihi satu ratus ribu ringgit bagi setiap haiwan, tumbuhan, atau bahagian yang mudah dikenali atau terbitan haiwan atau tumbuhan, spesies terjadual itu... atau dipenjarakan selama tempoh tidak melebihi tujuh tahun atau kedua-duanya;” Kalau korang tertanya-tanya “Kenapa orkid?”, ia dah semestinya disebabkan ada spesisnya yang dah berada dalam kategori terancam. Disebabkan hal itu, orkid tertakluk kepada hukuman berat, jika sesiapa didapati bersalah menyeludup tanaman ini keluar dari Malaysia. 4. Ayam Mungkin ada yang akan tanya, “Ni maknanya burger ayam pun tak boleh bawa keluar dari Malaysia ke?”. Sebenarnya, taklah macam tu dan larangan ni hanya merujuk pada ayam secara keseluruhannya atau bangkainya. Bukan saja Akta Kastam 1967 yang nyatakan hal ni, tapi juga dalam Seksyen 14(1), Akta Binatang 1953 yang menyatakan (tiada terjemahan rasmi, diterjemah oleh Asklegal): “Tiada seorang pun boleh mengeksport apa-apa haiwan atau bangkai apa-apa haiwan kecuali mengikut lesen bagi pihak yang dikeluarkan di bawah Akta ini dan mengikut syarat-syarat lesen itu dan apa-apa syarat sebagaimana yang ditetapkan.” Akta ini juga membawa hukuman di bawah Seksyen 14(3), di mana denda sebanyak RM500 atau penjara hingga 6 bulan atau kedua-duanya jika didapati bersalah. Dan tentu saja, ia juga bergantung pada sama ada negara yang korang nak pergi tu ada larangan tersendiri tentang perkara ni. 5. Pakaian dan peralatan ketenteraan Pakaian dan barangan ketenteraan, seperti – bahan nuklear, laser, navigasi, sensor dan peralatan avionik, memerlukan lesen/permit yang berkaitan untuk dieksport dari Malaysia. Akta Perdagangan Strategik 2010 merangkumi hal ini serta digubal untuk mengekang eksport dan penghantaran barangan ketenteraan strategik. Ia juga melindungi negara, kerana barangan berkaitan ketenteraan ni sangat sulit. Jadinya, untuk sebab keselamatan negara, korang tak boleh eksport alatan dan pakaian ketenteraan… walaupun ke negara jiran. Korang kena ada permit khas untuk eksport barangan ketenteraan, tapi proses permohonannya bergantung kepada sama ada korang adalah badan/orang yang relevan dan diiktiraf oleh Kementerian Perdagangan Antarabangsa dan Industri. 6. Gula dan beras Mungkin ada di antara kita yang terfikir nak bawa bahan mentah macam beras bila pergi luar negara, sebab rasa beras tu lebih sedap dari yang ada di negara luar. Tapi apa yang korang kena tahu, barangan ni sebenarnya dilarang dieksport keluar dari Malaysia. Bagaimanapun, sebagai mana ada dalam peraturan Kastam Malaysia, ia taklah dilarang sama sekali untuk eksport gula dan beras dari Malaysia. Korang boleh dapatkan permit untuk eksport gula dari Kementerian Perdagangan Dalam Negeri Dan Hal Ehwal Pengguna. Pautannya ada di sini. Untuk beras pula, Malaysia adalah negara ke-14 pengimport terbesar beras dunia. Disebabkan kekurangan beras tempatan di sini, sekatan eksport dah diperketatkan. Korang mungkin boleh sorok-sorok bawa putu piring masuk kapal terbang, tapi dah semestinya korang akan diberhentikan oleh pegawai kastam di negara yang korang pergi, bergantung kepada sekatan diorang. Bagaimanapun, kalau korang bawa pek gula dan tepung beras untuk buat putu piring dari awal, agak sukar sebenarnya untuk korang dapat lepas dari pemeriksaan kastam Malaysia tanpa ia dirampas. Kalau tak nak kena denda, baik anda periksa betul-betul barang yang dibawa Itulah apa yang kitorang dapat dekat Perintah Kastam (Larangan Mengenai Eksport) 2012. Kalau korang nak tahu lebih dan nak elakkan dari didenda dan kena penalti, pergilah periksa di laman Jabatan Kastam Diraja Malaysia dan Akta yang ada. Manakala, kalau korang nak eksport barangan ni atau hantarnya ke suatu tempat dengan jumlah yang besar, mungkin cara terbaiknya adalah dapatkan permit dari pihak berkuasa sebelum lakukannya. Kalau tak buat yang sepatutnya, berkemungkinan besar barang korang tu akan dirampas. Atau lebih buruk, korang mungkin akan dicaj atau dikenakan cukai sebagai penalti. Apa yang pasti, kalau korang eksport barangan ni secara komersial, kesnya dah tentu akan berbeza."
"Anda boleh saman jiran, kalau mereka buat 5 perkara menyakitkan hati ni [Click here for English version] Kadang-kadang tu, memang tak dapat dinafikan – kita ada jiran-jiran yang selalu je buat benda yang menyakitkan hati kita. Contohnya macam – main muzik kuat-kuat, buang sampah merata-rata atau biarkan kucing diorang jadikan halaman rumah korang tandas. Kalau benda macam tu jarang berlaku, kita tak kisah sangat, tapi kalau selalu je jadi – dan dah mula mengganggu ketenteraman hidup korang, sesiapa pun akan rasa tak puas hati kan? Dan hal macam ni lah yang dimanakan sebagai tort kacau ganggu persendirian (private nuisance). Sebenarnya, kalau benda macam ni jadi, korang boleh bawa jiran korang tu ke mahkamah. Tort ni secara asasnya adalah salah laku yang memberikan korang sebab untuk menyaman si pembuat salah. [BACA LAGI: What is a Tort?] Bila tindakan jiran korang tu boleh dikira sebagai kacau ganggu? Kacau ganggu sebenarnya adalah terma undang-undang. Terdapat 2 jenis kacau ganggu iaitu: kacau ganggu persendirian dan kacau ganggu awam. Tapi untuk artikel ni, kitorang cuma bagi fokus pada kacau ganggu persendirian, iaitu akan berlaku bila mana seseorang tu melakukan sesuatu yang mengganggu hak korang untuk menikmati hartanah korang (baca: menghalang korang tinggal di rumah sendiri dengan aman). Untuk menang kes terhadap kacau ganggu yang dilakukan oleh jiran, korang mesti tunjukkan apa yang jiran korang dah buat tu sebagai tak munasabah, secara berterusan menggangu kedamaian korang, dan boleh menyebabkan bahaya kepada korang. Ini apa yang buku teks undang-undang kata tentang kacau ganggu persendirian: Ia sentiasa menjadi persoalan sama ada gangguan terhadap keselesaan atau kemudahan cukup serius untuk menimbulkan gangguan. Perbuatan-perbuatan yang dikeluhkan sebagai menimbulkan gangguan, seperti suara, bau atau gegaran, biasanya akan menjadi tindakan yang sah, yang hanya menjadi salah dari keadaan di mana ia dilakukan, seperti waktu, tempat, sejauh mana atau cara pelaksanaan. – Clark & Lindsell tentang Torts (18 Ed.) Apa yang dimaksudkan di sini adalah – ada beberapa perkara tertentu yang jiran korang buat tu sebenarnya dibolehkan saja oleh undang-undang. Bagaimanapun, bila ia dilakukan dengan cara tertentu atau pada masa tertentu, ia mungkin boleh dianggap sebagai kacau ganggu jika ia mula secara serius mengganggu kehidupan korang. Atau lebih teruk dari tu, membuatkan korang mengalami tekanan emosi. Contohnya: Jiran korang Joe Chia ni kalau menyanyi memang teruk dan setiap kali dia buka mulut untuk menyanyi, memang sumbang betul suara dia. Di sini tak salah kalau korang tak pandai menyanyi dan tak salah juga kalau korang penyanyi yang teruk. Tapi, dia ni selalu menyanyi siang dan malam, sampai menggangu tidur dan kehidupan seharian korang. Dengan itu, ia dah menjadi kacau ganggu. Tapi, kacau ganggu oleh jiran ni tak terhad pada buka muzik kuat tengah malam je atau jiran korang ni vokalnya tak berapa bagus. Ia juga boleh jadi dalam bentuk bau, gegaran, asap, mahupun penglihatan. Sebenarnya, korang akan terkejut dengan apa yang dianggap atau dah dianggap oleh undang-undang sebagai kacau ganggu oleh jiran. Kami cuba selidik beberapa kes yang menarik untuk kita tahu. Dan ini dia 5 perkara yang rakyat Malaysia pernah bawa jiran diorang ke mahkamah kerana kacau ganggu dan menang. 1. Membakar barang sembahyang secara tetap dan kerap KES: Tunku Norella Suriani bt Tunku Yusoff & Anor v Kumpulan Sierramas (M) Sdn Bhd & Anor [2011] 9 MLJ 1 Dalam kes ini, wanita tersebut berjaya menyaman jirannya yang selalu buat pembakaran terbuka barang sembahyang yang membuatkan bau asap tak menyenangkan dan berbahaya. Mahkamah mendapati, tindakan itu sebagai kacau ganggu kerana ia bukan saja mengganggu wanita berkenaan di rumahnya, tapi juga menurunkan nilai hartanahnya. 2. Kamera CCTV yang menuju terus ke arah rumah jiran KES: Lew Cher Phow @ Lew Cha Paw & Ors v Pua Yong Yong & Anor [2011] MLJU 1195 Satu keluarga di Johor Bahru ni ada masalah dengan kamera CCTV jiran yang betul-betul diarahkan ke halaman depan dan bahagian belakang rumah diorang. Rasa seperti diintip oleh jiran, keluarga ni terpaksa lebarkan zink di sepanjang pagar untuk elakkan rumah dan aktiviti diorang dari diawasi secara berterusan oleh jiran. Keluarga ni juga terpaksa sentiasa tutup pintu dan tingkap, selain tak boleh hidup, makan dan tidur dengan aman. Hasilnya, diorang dah mengalami tekanan emosi, stress dan komplikasi perubatan. Mahkamah kemudiannya memutuskan yang tindakan jiran diorang itu sebagai pengawasan melampau yang melanggar hak privasi diorang. Hal ini pada dasarnya dianggap sebagai kacau ganggu. 3. Parkir kereta dengan cara menyusahkan orang lain KES: Lai Kong Loke & Anor v Ting See Leng [2017] 7 MLJ 548 Pada tahun 2017, seorang lelaki di Pulau Pinang dah bertindak menyaman jirannya yang selalu parkir kereta di depan rumah jirannya. Hal tu bukan je menyebabkan dia susah nak masuk ke dalam rumahnya sendiri, malah membuatkannya susah nak undurkan kereta untuk keluar dari jalan. Mahkamah memutuskan yang sikap jirannya itu sebagai sangat tak munasabah dan ia adalah kacau ganggu. [BACA LAGI: Apa anda boleh buat jika ada yang meletak kenderaan mereka di hadapan rumah anda?] 4. Bunyi bising pam air KES: Ong Koh Hou v Perbadanan Bandar & YBR Management Sdn Bhd [2009] 8 MLJ 616 Kes ni jadi bila ada seorang lelaki yang beli penthouse dan baru je pindah masuk. Dua minggu kemudian, dia terpaksa pindah keluar sebab tak tahan dengan bunyi bising pam air yang terletak di atas rumahnya. Dia kata, bunyi tu sama dengan bunyi mengetuk yang jadi secara berterusan dengan kekerapan dua kali setiap jam sepanjang hari. Dia saman pemaju dan pengurusan kondominium. Mahkamah dapati, mendengar bunyi bising secara berterusan dari pam air sebagai terlalu sukar nak ditanggung dan bunyi itu dianggap sebagai kacau ganggu. 5. Buat ubah suai sampai merosakkan hartanah orang lain KES: Chan Wing & Sons Realty Co Ltd v The Asia Insurance Co Ltd [1962] 1 MLJ 40 Dalam kes ini, pemilik bangunan rumah kedai yang berusia berabad dah menyaman pemilik plot tanah (defendan) kerana menyebabkan kerosakan yang serius terhadap harta benda diorang semasa menjalankan kerja-kerja pembinaan. Bukti menunjukkan – gegaran dari kerja pembinaan membuatkan dinding dan simen lantai rentak, selain struktur bangunan yang tak sekata. Tapi pihak defendan berhujah yang tu bukan salah diorang sebab bangunan tu memang dah tua pun. Bagaimanapun, hakim tak terima hujah tu sebab ia sekadar pendapat dan disebabkan bangunan tu dah tua, tu tak bermaksud yang ia tak patut dapat perlindungan undang-undang terhadap kacau ganggu. Macam mana nak berurusan dengan jiran yang bermasalah ni? Sekarang ni, sebelum korang saman jiran korang, apa kata cubalah dulu bersemuka dan berbincang dengan diorang. Sebabnya, bukan semua benda kita patut selesaikan di mahkamah, ada je benda yang boleh selesai dengan berbincang dan rundingan. Tapi, kalau dengan cara baik macam tu masih lagi tak jalan – bolehlah korang ambil tindakan dengan buat aduan kepada pihak berkuasa tempatan (macam: Majlis Bandaraya/Majlis Perbandaran). Di bawah Akta Kerajaan Tempatan 1976, pihak berkuasa tempatan bertanggungjawab membuat sebarang langkah perlu untuk menyelesaikan jenis-jenis kacau ganggu tertentu. Sesetengah isu yang pihak berkuasa tempatan ada kuasa untuk menguruskannya disenaraikan dalam Seksyen 81, akta sama dan ia termasuklah berkenaan dengan: Binatang yang disimpan di sesuatu tempat atau dengan cara yang dianggap sebagai kacau ganggu Tempat atau tadahan yang boleh menjadi tempat pembiakan makhluk perosak seperti nyamuk, lalat dan tikus Melepaskan asap atau debu yang berbahaya kepada kesihatan penduduk di kawasan kejiranan Tapi senarai ni tak lengkap, sebab pihak berkuasa tempatan diberi kuasa untuk menangani pelbagai lagi isu yang lebih luas. Kalau korang nak tahu lagi tentang skop kuasa dan tanggungjawab diorang, korang boleh rujuk semuanya dalam Akta. Sekiranya korang tinggal dalam hartanah berstrata (pangsapuri/apartmen/kondominium dan hartanah yang berpagar), korang kena kemukakan aduan korang kepada Badan Pengurusan Bersama (JMB) terlebih dulu sebelum pergi ke peguam. Pemilik dan penduduk hartanah berstrata terikat dengan undang-undang dan peraturan seperti dalam Peraturan Pengurusan Strata (Penyelenggaraan & Pengurusan) 2015, dan dalam sesetengah kes Surat Ikatan Perjanjian Bersama dan Perjanjian Jual Beli yang pada asasnya menghuraikan 'peraturan rumah' yang mesti dipatuhi oleh penduduk. Kalau korang dah letih dengan cara diplomatik, korang bolehlah bawa kes tu ke mahkamah sebagai cara penyelesaian. Tapi dengan pilih cara ni, korang kena pastikan dulu yang korang ada bukti cukup, sebab dengan itu jugalah ia akan menentukan nasib kes korang tu. Akhirnya, sama ada mahkamah menganggap apa yang jiran korang buat tu sebagai kacau ganggu atau tak, ia akan diputuskan berdasarkan fakta dan keadaan."
"Malaysian streetlamps are turning white. The reason is more complicated than you think A well-lit street at night is something that many of us take for granted, and it’s something we don’t really notice unless, well, unless they aren’t working. It’s only when you’re squinting in the dark that you realize how much of a difference that warm orange glow makes. But over the past year, you may have noticed a change in your neighborhood street lamps – they’re much brighter, and much whiter. These are a result of the government’s push to replace the old orange bulbs we’ve been using for decades, with newfangled LEDs (Light-Emitting Diodes). Specifically, the ministry that’s LED-ing the way in this initiative is MESTECC, the Ministry of Energy, Science, Technology, Environment and Climate Change. They’re basically the people who use science and technology to conserve the environment – such as fighting peat fires and haze – as well as innovating new methods for ecologically sustainable economic growth (aka eco-friendly ways to make money). As it turns out, a simple change in light bulbs can start a long chain of events that affect the environment – something we’ll get into later in this article. But don’t worry about missing out if the street lamps in your area are still orange, because... More street lights in Malaysia will be LED by 2020 This sounds pretty obvious but street lamps serve the function of lighting up an area at night for safety purposes, whether to spot road hazards or threats hiding in the darkness. There are also laws that require the local authorities to provide street lamps in all public areas, such as in Section 4(1)(d) of the Street, Drainage, and Building Act 1974: The local authority shall, so far as the funds at its disposal will admit, cause all public streets together with the footways thereof, whether covered by arcades or not, to be maintained and repaired and may— [...] (d) provide street lighting. There are a whole bunch of other laws and regulations that are related to street lights but, suffice to say, the government (whether federal or state) is responsible for providing, maintaining, and paying the electric bill (which comes from your tax money). In fact, very recently, MESTECC and the Ministry of Rural Development (KPLB) have collaborated on a project to provide 10,000 street lamps (which MESTECC tells us is now over 25,000) on village roads in Peninsula Malaysia. And yes, you guessed it…. they’re all LEDs. Meanwhile, as of June 2019, almost 60% of the 367,000 street lights under TNB in Peninsula Malaysia have been replaced with LEDs (hence why you’re beginning to see them more now), with plans to replace the remaining 40% by 2020. These changes aren’t just happening in Malaysia, but many countries have also started transitioning to LED street lights. MESTECC says that the LEDs used in these street lights are capable of cutting electric bill costs by 30% – 40%. If you consider that Penang alone paid RM13 million in street light electricity bills in 2017, the cost savings to the entire country would be pretty significant. And a lot of this falls down to how LEDs work compared to conventional fluorescent or incandescent bulbs. Have you ever wondered why street lamps are orange? Unless you’re familiar with advancements in lightbulb technology, you may think that lightbulbs still work the same way you learnt in school Kemahiran Hidup classes – the “Thomas Edison” incandescent lightbulbs with the curly filament that heats up and produces light. But in actuality, most homes (and street lights) nowadays use a completely different type of bulb broadly known as Gas-Discharge Lamps. Here’s a brief description of how they work: Incandescent lightbulb – Light is produced by superheating the filament inside the glass. Gas-Discharge Lamp – The gas inside the glass is heated until it’s hot enough to vaporize (turn into gas) another substance – usually mercury or sodium – also contained within the glass, to produce light. This is used in energy saving bulbs, fluorescent / pendaflour lights, and… you gassed guessed it: street lights. The bulbs used in street lights are called Sodium-Vapor Lamps which, as the name implies, contains metallic sodium as the the additional substance. It’s this sodium vapor that gives off the characteristic orange glow that we’re all familiar with. For years, sodium vapor lamps were the preferred choice to light the streets by governments all over the world because they were the most cost-efficient type of Gas-Discharge Lamps. Until LEDs happened. LED lights don’t involve the use of gas or vapor. Instead, it uses semiconductors to influence the movement of electrons from positively-charged to negatively charged areas (here’s the proper explanation). An “LED light” is basically a whole bunch of LEDs clumped together to shoot out light. The preference for LEDs become obvious when you consider the following factors: Energy wastage Because Gas-Discharge Lamps work by heating stuff up, much of the electricity is actually used to generate heat instead of the light that you actually want. This means that up to 80% of the electricity used in these bulbs are lost as heat. On the other hand, LEDs generate very little heat (about 5% of the electricity used), meaning that less electricity is needed to generate light. Loss of light One thing you may have noticed with traditional bulbs is that they generate light in an almost 360-degree radius. Because street lamps don’t need to light up the sky, the light needs to be ‘directed’ towards the ground using reflectors – this is why you’ll see reflective plates or coatings in the fixtures of orange street lights. However, having to direct the light also means that up to 50% of generated light never actually leaves the lamp fixture. LEDs can be configured to focus light in any direction, so no reflectors are needed, which means little to no light is lost. This means that you can use an LED light with less wattage (or even less bulbs in general) to light up the same space. Life span All bulbs will eventually stop working at some point in time. Sodium-Vapor Lamps have an estimated lifespan of 24,000 hours, which can be reduced in high-vibration environments (like near a main road). This means that local authorities not only spend more money in replacing bulbs, but also in manpower costs to maintain them. Industrial LEDs are estimated to last more than 100,000 hours. Environmental impact There are two parts to this – carbon emissions and mercury pollution. Despite moves towards renewable energy sources like solar, MESTECC tells us that Malaysia is still mostly powered by burning fossil fuels such as coal, oil, or natural gas; which increases our environmental impact in terms of carbon emissions and contributing to climate change. In this sense, until we have the technology and means to fully move to renewable energy, the most we can do to reduce our carbon footprint is by consuming less electricity – like switching to LEDs. You may not know this, but all Gas-Discharge Lamps in everyday use contain mercury, a toxic substance. But don’t panic just yet, the mercury is contained within the glass, which only becomes an issue when it breaks. Although the amount of mercury isn’t directly harmful if you happened break a bulb, it becomes a problem when we throw away our bulbs with our regular trash; where it will break during the waste disposal process. If you take into account the collective number of bulbs that are disposed, then the amount of mercury released into the atmosphere becomes less negligible. Here’s the thing though… burning fossil fuels also releases mercury and, until LED technology became more accessible, the energy-saving properties of Gas-Discharge Lamps were seen as a better alternative despite containing mercury themselves. This may be pretty obvious by now, but LEDs do not contain mercury. Here’s how you can make a difference at home… not just with LEDs MESTECC takes their commitment to the environment pretty darn seriously and we saw this first-hand when we visited them in their Putrajaya HQ, where we were served water in cups instead of plastic bottles. They said this is part of a conscious effort to eliminate single-use plastics in all government offices. Although this article can be seen as a plug for you to replace the lights in your house with LEDs, there’s something you should know – LEDs at this point cost more than energy-saving bulbs. However, the savings to your electricity bill and the environment over the long term will outweigh this initial cost. The other thing is that there are still some fixtures that still work better with traditional lights that shine in a 360 degree radius, such as lamps (it would be funny having a lamp which only shoots light upwards). Aside from LEDs, MESTECC has also started several initiatives that you may be able to participate in: RM40 electric bill rebate for Malaysians in the B40 income group (click here to check eligibility) Turn your house into a solar generator – The Net Energy Monitoring (NEM) scheme allows houseowners to sign a contract with TNB to install solar panels on their property. Any solar energy you don’t use will be sold back to TNB. More information here. 20% electric bill discount for eligible Taskas (more information here) And of course, try to recycle as much as you can. Since we’re on the topic of light bulbs, there are places that prepare special collection boxes to safely recycle light bulbs, like in Ikea outlets. We hope you found this article en-light-ening!"
"In Malaysia, you CAN get fired for bad performance at work. Here's why You’ve been working in the same company for almost 5 years now. It’s practically your comfort zone, and you’ve never faced any serious problems at work...until today. You arrive at work (late as usual) and see a termination of employment letter addressed to you on your desk. You can’t believe it—you’re fired! Even more, you don’t know what you did wrong to begin with. You decide to carry all that anger to your boss’ room and ask him why he decided to fire you for doing nothing! That’s when you got your answer. You did...nothing. You’ve failed to reach your targeted KPI for months now, you’re constantly late to work, and you take leave without informing HR. But that’s not all. Your boss goes on to say that there have been numerous complains about you from other employees and the management—which led to the company firing you. But you’re not going to accept that. You go on to argue that the termination is unfair, especially when you’ve already built a second home in the company. But here’s the thing... Your company CAN fire you for poor performance Generally, companies can dismiss or fire an employee for poor performance at work. What would amount to bad performance at work includes, but is not limited to: Low productivity Quality of work is not up to par Being inefficient at work Unable to meet the required standards These are just some of the grounds that can be brought by a company to dismiss an employee. But before we go further, here’s something you need to take note of: Poor performance is NOT the same as misconduct. Misconducts can amount to, but is not limited to absence from work, sexual harassment or committing a criminal offence. [READ MORE: Can Malaysian companies fire you for misbehaving after office hours?] [READ MORE: What can you do if you have been sexually harassed in Malaysia?] Perhaps this UK case law can help explain what poor performance is at a workplace. In Littlewoods Organisation Ltd. v L. N. Egenti [1976], the courts stated that: “...any professional man...would, if he was brought to his notice that his work was not up to standard, and if he did not improve the standard of his work sufficiently, he might be faced with dismissal. That was plain common sense...” Basically, an employee whose work is not up to standard, and does not do anything to improve his work is subject to dismissal for bad performance in a company. In other words, if you’ve been working for a while now and the quality of your work is going downhill—and you haven’t been doing anything to make it better, you can be fired by your company. But of course there are certain regulations that companies must follow before firing someone under Employment law… Your company needs to give you a chance to change But even with poor performances, your boss still can’t dismiss you immediately for it. First, they need to give you time and opportunity to improve. In the case of IE Project Sdn Bhd v Tan Lee Seng [1987], there are several conditions that need to be fulfilled by the company before firing an employee: “An employer should be very slow to dismiss upon the ground that the employee is found to be unsatisfactory in his performance or incapable of performing...warning him of the possibility...of dismissal on this ground and giving him an opportunity of improving his performance.” Here’s a summary on the conditions laid down in this case: 1. The employee must be given sufficient notice or warning about his poor performance. 2. The employee was given reasonable opportunity/time to improve his work performance. 3. Despite sufficient notice and opportunity, the employee failed to improve his work performance. So, if you were performing poorly, first, your company needs to give you a warning or notice. In that warning, your company must define clearly what they expect from you and what you need to improve. And after that, they need to give you a reasonable amount of time to improve your work. Only after they’ve given you a chance AND you failed to improve, then, and only then, can your company fire you for poor performance. The reason for these extra steps—besides just being compassionate—is to show that if your company fired you, it was done in an objective manner, and was not done unfairly. As it is, the company bears the burden of proof, to show that the dismissal of an employee on the grounds of poor performance was reasonable. Now, if you feel your company fired you without a good reason... You can sue your company in the Industrial Court Image from anneedwardstv.com So, if you feel that you have been fired unfairly, you may bring a case to the Industrial Court. Section 30(5) of the Industrial Relations Act 1967 provides: “The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.” Basically, the court will take into account the welfare of employees who have been unfairly dismissed. But keep in mind, you have 60 days to file a complaint after being dismissed. You can check out how to do so, with this guide. [READ MORE: My boss just fired me for no reason, what can I do now?] If the court finds that you have been unfairly dismissed, you’re entitled to certain benefits. Employees who have been unfairly dismissed are entitled to claims stated under the Employment (Termination and Lay-off Benefits) Regulations 1980. However, some companies have their own policies and regulations on termination benefits. So, it would be best to check with your company first."
"If your insurance agent in M'sia can't get 10/10 on this quiz, you may need a new one What comes to your mind when we say the words “insurance agent”? A writer from our sibling site Cilisos asked this in their Facebook group once, and here’s some of the… uh… nicer comments: Well, to be fair, there is some truth in these because we have some pretty annoying insurance friends to begin with *cough*Hi Marcus*cough* At the same time other stereotypes of insurance agents – like how your parents used to tell you that you’ll be an insurance agent if you don’t study – are outdated at best. Our friends at AIA have been actively trying to switch people’s perceptions about this particular stereotype. AIA gave us the chance to meet with a couple of trainer superstars, so we took the chance to find out just what kinda training they had to go through. For one, we learned that insurance agents actually have to sit through a bunch of exams to be certified. Not just that… … the passing rate for insurance-related exams is as low as 60%! What kinda exams, you ask? “CEILI, TBE, PCEIA*… these are just some of the industry requirements,” Azlin Kamarulzaman, an AIA Agency Leader tells us. “If you really want to be a life planner, then THAT is the first hurdle you need to overcome.” *Certificate Examination In Investment-Linked Life Insurance, Takaful Basic Examination, Pre-Contract Examination for Insurance Agents And, no… the only way you can pass these exams is through hard work and sweat “No under-table money, the conditions are very strict,” Franco Wong, an AIA Agency Trainer replied after we asked if there’s any chance of buying your way in. We were also told that anyone can take the insurance exams but, if you’re not smart or studious enough, you can pretty much forget about passing. OH. We should note that AIA doesn’t call their agents as ‘insurance agents’ - they’re called ‘Life Planners’, for reasons we’ll reveal at the end of the article. Coming back to exams, our trainers also tell us that you also have to be updated in areas such as medicine, finance, investment and law. “You need to know your stuff,” Azlin says. And we can imagine that too - as insurance agents help plan our lives, it would be irresponsible if they had no grasp on these things. So, seeing as we were in the presence of insurance experts (aaaand AskLegal may or may not have gotten their hands on the PCEIA sample exam questions by the Malaysian Insurance Institute), we wanted to challenge our readers to see how well they can score in our mini insurance agent quiz! These are general insurance questions and not specific to any insurance company or policy. Franco and Azlin helped with answering and providing explanations for these questions, so you can have a go at it to see how you compare to an insurance agent. Better yet, if someone approaches you to sign up for an insurance plan, test their abilities with this quiz! There’s actually so much more to insurance training than you think Actually, there’s a reason why we chose to write this article - and that’s because our friends at AIA are well aware of the negative perceptions towards a career as an insurance agent. Or, well, in AIA’s case, a Life Planner. They don’t want people to see their agents as pushy salespeople with no proper training or background - they want them to be seen as who they should be: intelligent, industry-certified Life Planners who actually add real value to the lives of the people they approach. But it takes a lot to change this mindset, so that’s why they have the AIA Elite Academy - a place where budding agents can receive all the training they need to be successful Life Planners themselves. (And, who knows, reach the ranks of Azlin and Franco) Thankfully, it’s not all professional exams and hard-core studying. “Soft skills are critical,” Azlin tells us. He adds that in his company, he has set up several training modules such as the ‘ABC’ training course, which focuses on the agents’ Attitudes, Business mindset, and Career mindset. “Malaysia really needs awareness about the concept of insurance,” Franco adds. To him, insurance just doesn’t seem like a priority in personal budgeting. “Retirement seems so far away to many 20-sometings. They’d rather spend RM5k on a phone instead of protecting themselves.” And perhaps with a realignment of what insurance agents are really trained to work, would help the public see insurance beyond its salesy facade. To find out more about the AIA Elite Academy, click here."
"In 2004, a Malaysian man sued his dad for not paying his school fees. Here's how it ended Pretty much all of us have had misunderstandings and disagreements with our family members. We might be highly irritated with them and not want to talk to them. Or, we might choose to talk to them about it and come to a mutual agreement on how to solve the problem. However, one man decided that talking wasn’t going to be enough. In order to get his father to comply with what he wanted, he decided to take the matter to court and file a lawsuit against him. Sure, people sue each other all the time—but suing your own family member is almost unheard of! You might be wondering if Malaysian law allows people to sue family, or this was just a one off case that was given an exception. So before we tell you the story of Dui Geng who sued his father Woon Keat, let’s answer this question: Can you actually sue a family member in Malaysia? Malaysian law doesn’t actually have a prohibition on who can sue who. Of course, there are some people who have immunity, such as foreign ambassadors and royals. But other than that, the law doesn’t specifically say that you cannot sue your own family member. There is, however, a problem with taking your own flesh and blood to court: Family issues don’t always have a legal basis or issue. But, what is a legal basis or issue in the first place? Basically, for a case to go to court, it has to be something that has a cause of action in law and something the person suing can get a remedy for. A remedy means you could get compensation such as money or property. Or, it could mean that you could order someone to do something—such as your neighbour cutting the top of their tree so it doesn’t grow into your garden. So, if you and your sister got into a verbal argument on who should do the dishes, this is something that the law cannot provide you a remedy with. However, say you and your sister got into a dispute over the family’s property, you can take this to court as the law of property and law of trusts may be able to help you find a solution. So, what was the reason that Dui Geng wanted to take Woon Keat to court? In this case, it wasn’t just a petty family feud, but it involved finances and monetary obligations. And because only the law could help him out, did this man decide to take his father to court. He wanted his father to pay RM81,421 for his education Dui Geng’s parents divorced when he was just 4 years old, and he was raised by his mother. When his parents divorced, the court decided that Dui Geng’s father, Woon Keat, would have to pay what is known as maintenance. Maintenance is basically child support, money that is used for the child’s food and clothes, education, and so on. Initially, Woon Keat was paying this maintenance, which was about RM400 every month. Woon Keat was a factory owner in Gopeng, and he continued to pay the maintenance until Dui Geng turned 18 in the year 2000. After the payments stopped, Woon Keat asked Dui Geng to come and work for him in his factory and Dui Geng agreed. By this time, Dui Geng was 19 and Woon Keat was paying him RM600 a month, which is what he was paying the rest of his factory workers. Some time later, Dui Geng went on to pursue his education in a university. In his final year, he needed to complete his education in Nottingham Trent University in the UK. The first two years of his education had been self-funded, but he needed financial support for that final year in the UK. However, since Dui Geng turned 18, Woon Keat stopped paying child support; the only monetary help Dui Geng received from him was the salary he was getting from working in his factory. Once Dui Geng went back to study, no more help had been given. When he had to complete his final year in the UK, he decided that legal action was the only way his father could be compelled to help him. With the help of his lawyer, M Kulasegaran (our current Minister of Human Resources) he filed a case in the Ipoh High Court to get his father to fund his education. The cost of tuition fee and accommodation would total up to over RM81,000, and this is how much Dui Geng needed from his father. The court allowed the son to sue. Then changed their mind. Dui Geng filed the case in January 2004. He said that although he was older than 18 years old (22 at that point), his father still owed a duty to pay maintenance for him. To strengthen this point, his lawyer relied on Section 95 of the Law Reform (Marriage and Divorce) Act 1976 which states: Except where an order for custody or maintenance of a child is expressed to be for any shorter period or where any such order has been rescinded, it shall expire on the attainment by the child of the age of eighteen years or where the child is under physical or mental disability, on the ceasing of such disability, whichever is the later. This law basically says that a parent who has been asked to pay maintenance by the court has to do so until the child turns 18. The only exception to this would be if the child had a physical or mental disability, in which case the parent would have to financially support the child for a longer period. But wait a minute… Dui Geng wasn’t under 18, and nor did he have a disability. So how could he rely on this law? His lawyer argued that if someone was involuntarily dependent on someone else for their finances, this would amount to a physical and mental disability. Since Dui Geng was still studying and did not have a job yet, so he could still rely on his father to support him financially. The court agreed with Dui Geng’s lawyer, stating that Dui Geng was involuntary dependent and that he had the legal basis to sue Woon Keat. That was the end of the first hearing, and they could continue with their case. 6 months later, in June 2004, Dui Geng and Woon Keat went to court again for another hearing. It’s at this point that things took a different turn. Although the court previously said that there was a legal basis for Dui Geng to sue and that he could proceed with the lawsuit, this time the court decided otherwise. In its final outcome, the Ipoh High Court said that the law stands as it is: A child who is above 18 cannot compel his parents to financially support him. Dui Geng could not also be considered to have a physical or mental disability even though he was still studying. In the end, the court asked Dui Geng to pay Woon Keat RM3,000 instead, to make up for the legal costs that he had incurred in those months. The law has now changed When the case was decided 15 years ago (at the time of writing), it was decided that a parent who had been paying for a child’s maintenance was not obliged to pay for their education. But there were exceptions— in the case of Karunairajah a/l Rasiah v Punithambigai a/p Ponniah, the father had expressly promised to pay for his children’s education until they completed it. The court ruled that a promise like that could not be broken. But in Dui Geng’s case, Woon Keat had not made any such promise and so, no exception could be made in that case. From that time up to 2017, Malaysian courts heard many cases on parents who did not want to pay for their children’s education after they had turned 18. While in some cases, the law was followed as it is, it was difficult to go by the book in other instances So in 2017, a change was proposed that would ensure a child’s education would be paid for until they completed it, even if they were above 18 years old: Amendment of section 95 of the Law Reform (Marriage and Divorce) Act 1976 Section 95 of the principal Act is amended – (a) by inserting after the words “physical or mental disability,” the words “or is pursuing further or higher education or training,”; and (b) by inserting after the words “ceasing of such disability” the words “or completion of such further and higher education or training”. This change was accepted by Parliament and it became official law on the 15th of December 2018. With this law, the parents responsibility doesn’t end when their child turns 18. Rather, it ends when the child could start taking care of themselves, with the best possible advantage—an education."
"Can Malaysian shops use ""limited time"" discounts to pressure you into buying? We’ve all been in the following situation – you’re window shopping at a mall and a promotor stops you. You tell them you are not interested in whatever spiel they have but right before you walk away, you hear them frantically going, “But wait sir. I have a special offer just for you”. Intrigued, you stay on. The offer does sound really awesome; for just 20 extra bucks a month, you get to triple your monthly data limit. However, like any other responsible adult, you would like some time to mull about the extra costs so you tell the promoter that you would think about it and get back to them. “Sure thing but the offer is only valid until tonight.” You stutter and say that it’s already 4.30pm but the promoter just shrugs his shoulder. Isn’t it illegal for them to do this? To bait you and tempt you? Let’s take a look at Malaysia’s consumer protection laws Some of you may not know that Malaysia actually has its own consumer protection law which is found in the Consumer Protection Act 1999 (“CPA 1999”). The CPA 1999 covers a wide area of issues such as making it illegal for businesses to present bait advertising or misrepresent things or even provide goods and services which are unsafe. Here’s the thing; it’s actually not illegal for them to tempt you a special offer that is for a limited time only. The eagle-eyed reader might have spotted that bait advertising is illegal under the CPA 1999 and wonder if that’s the same thing...it’s not. Bait advertising in the CPA 1999 relates to when a seller offers to supply goods which he has no intention of supplying. In our case, the seller has every intention to supply it but the catch is, you have a short time to say yes. You might wonder, how is it legal for them to “coerce” you into a deal? It goes back to basic contract law Contracts 101 tells us that in every arrangement, there is an offer that is accepted by that counter party and that creates a contract (remember, not every contract has to be written; there can be verbal contracts). An offer can come with a time limit. For example, the offer can stipulate that it will expire within a month’s time or a week or even an hour. If you fail to accept the offer within the time limit set, then the offer would have lapsed. In the telemarketer’s scenario, they would have made you an offer that comes with a time limit and you would have to accept the offer within the time stipulated. What happens if they fail to set a time limit? Without a time limit, an offer is only valid for a “reasonable time”. What is reasonable would depend on what is being sold or offered; you can’t disappear for a year and respond that you want to sign up for that plan. Now that you know it’s legal for them to tempt you, what can you do? Be a savvy consumer It’s easy to be tempted into buying more things than you need or signing up for packages that seem like a steal but are really more than you need. However, the question to really ask is, time limit on the offer or not, do you really need that thing you are eyeing or are you just pushed into buying it because of the time limit? On a side note, if you have truly been maligned by a seller, Malaysia has its own Consumer Tribunal where you can submit complaints and claims. You can go to one of their branches nearby, or if you prefer, you can even sign up and do it online."
"Kerana telur penyu...dua keluarga ni saman kerajaan Sabah [Click here for English version] Kadang-kadang, undang-undang tu boleh nampak macam hebat, lebih-lebih lagi bila ia bagi fokus dalam melindungi alam sekitar. Tapi, kadang kala kita juga terlepas pandang pasal amplikasi undang-undang tu terhadap masyarakat. Dan itulah yang berlaku di Sipadan, sebuah pulau di perairan Sabah. Pada tahun 2004, setiausaha kerajaan negeri dah keluarkan perintah kepada penduduk Sipadan untuk merobohkan semua struktur dan mengosongkan pulau itu. Tapi, ada dua keluarga asal yang tinggal di pulau tu, iaitu keluarga Abdul Rauf dan keluarga Haji Abdillah. Kedua-dua keluarga ni rasa tak puas hati dengan perintah tersebut. Tujuh tahun sebelum tu, sesiapa saja di Sipadan dah dilarang dari kutip telur penyu. Dah la tak boleh ambil telur penyu, sekarang ni suruh mereka keluar pula. Mereka pun rasa benda ni betul-betul tak adil dan melanggar hak mereka di pulau tu sebagai penduduk pribumi (pada asasnya, penduduk asli pulau). Jadinya, mereka pun ambil keputusan untuk saman kerajaan Sabah, dengan menuntut Hak Adat Bumiputera (NCR) yang mereka ada selama bergenerasi di pulau tu. Untuk faham lebih lagi pasal isu ni, mungkin lebih baik kita selak kembali sejarah... Mereka dah diberikan kebenaran sebelum Sabah jadi ‘Sabah’ lagi Menurut sejarahnya, Abdul Rauf dan Haji Abdillah ni adalah keturunan pegawai tinggi Kesultanan Sulu dulu. Pada tahun 1878, bila Sipadan diperintah oleh Kesultanan Sulu, antara komoditi yang paling menguntungkan di pulau tu adalah telur penyu. Sultan Sulu menguruskan hak mengutip telur penyu di pulau tu. Dalam masa sama, nenek moyang Abdul Rauf dan Haji Abdillah pun diberikan hak mengutip telur penyu di pulau tu. Hak ni kemudiannya diwarisi, dan mereka dah buat aktiviti tu sampailah tahun 1997. Tapi, aktiviti tu terhenti bila kerajaan isytiharkan pulau tu sebagai kawasan dilindungi di bawah Akta Kawasan Larangan dan Tempat Larangan 1959. Disebabkan mereka dah kutip telur penyu sejak berabad lamanya, mereka pun buat keputusan untuk tuntut Hak Adat Bumiputera (NCR) mereka ke mahkamah. Kesinambungan kehidupan keturunan mereka akan menjadi hujah utama dalam kes ni. Tapi sebelum tu, korang mesti tertanya-tanya apa tu Hak Adat Bumiputera (NCR) kan? Sebenarnya, NCR ni melindungi tanah Bumiputera dengan membenarkan mereka menuntut tanah tertentu sebagai milik mereka. Di Sabah, Hak Adat Bumiputera diiktiraf dan termaktub dalam Seksyen 15, Ordinan Tanah Sabah. Undang-undang ni berfungsi dengan mengiktiraf hak mereka untuk tinggal di sesuatu tempat, berdasarkan bukti yang mereka dah tinggal di sana selama beberapa generasi. Abdul Rauf dan Haji Abdillah kedua-duanya menuntut yang mereka ada NCR terhadap pulau tu, kerana mereka memenuhi syarat yang ditetapkan dalam Seksyen 15(d) dan (e) Ordinan Tanah Sabah iaitu kependudukan berterusan (tinggal di atas tanah) dan aktviti pertanian. (Tiada terjemahan rasmi, diterjemahkan oleh Asklegal). Hak Adat Bumiputera hendaklah diadakan – (d) tanah ragut di mana pihak yang menuntut bersetuju untuk ianya dikekalkan dengan bilangan lembu atau kuda yang mencukupi supaya tanah tidak terbiar (e) tanah yang telah ditanam atau dibina dalam masa tiga tahun; Untuk kes ni, kedua-dua keluarga buat keputusan untuk guna sejarah mereka mengutip telur penyu sebagai hujah bagi membuktikan tuntutan NCR mereka terhadap pulau tersebut. Mahkamah putuskan untuk gabungkan kedua-dua kes mereka dalam satu perbicaraan Pada asalnya, kedua-dua keluarga ni buat tuntutan mahkamah secara berasingan, tapi mahkamah tertinggi lepas tu buat keputusan untuk adakan pendengaran kes bersama – sebab hujah kedua-dua keluarga agak sama je. Kami akan asingkan penghakiman akhir dari mahkamah tertinggi kepada tiga perkara: Tuntutan kedua-dua keluarga tentang mengutip telur penyu, Tuntutan Abdul Rauf, Tuntutan Abdillah 1. Pertikaian tentang telur penyu Kedua-dua keluarga menuntut yang mereka dah gunakan tanah tu untuk aktiviti pertanian, iaitu mengutip telur penyu. Bagaimanapun, tuntutan mereka ditolak mahkamah, sebab Ordinan Tanah Sabah tak iktiraf mengutip telur penyu tu sebagai aktiviti pertanian. Dalam Seksyen 15(d) Ordinan Tanah Sabah, sesuatu tanah tu hanya boleh jadi NCR kalau ia digunakan untuk perladangan dan penternakan. Jadinya, kutip telur penyu dekat pantai bukanlah perladangan atau penternakan haiwan. Hak Adat Bumiputera hendaklah diadakan… (d) tanah ragut di mana pihak yang menuntut bersetuju untuk ianya dikekalkan dengan bilangan lembu atau kuda yang mencukupi supaya tanah tidak terbiar; Bagaimanapun, mereka hanya perlu penuhi salah satu dari kriteria NCR dalam Ordinan Tanah Sabah ni. Kedua-dua keluarga mendakwa mereka dah penuhi kriteria Seksyen 15(e) Ordinan Tanah Sabah, di mana NCR boleh diadakan jika berlaku kependudukan berterusan di tanah tersebut. Hak Adat Bumiputera hendaklah diadakan… (e) tanah yang telah ditanam atau dibina dalam masa tiga tahun; Tapi mahkamah tak setuju. Sebabnya, walaupun kedua-dua keluarga tu dah mengutip telur penyu sejak berabad, ia tak bermakna mereka menduduki pulau tersebut. Mahkamah memutuskan, tak ada bukti kukuh yang boleh menyokong tuntutan mereka tu. Mesti kena ada bukti yang lebih untuk menyokong tuntutan mereka itu. Rumusan: Ditolak Mahkamah kemudiannya lihat setiap bukti keluarga berkenaan secara berasingan, untuk pastikan sama ada mereka masih ada kes atau tak. 2. Tuntutan Abdul Rauf Abdul Rauf tak dapat bentangkan banyak bukti pasal keluarganya dah menduduki pulau tu secara berterusan selama tiga tahun, seperti mana yang dinyatakan dalam Seksyen 15(e) Ordinan Tanah Sabah. Hak Adat Bumiputera hendaklah diadakan… (e) tanah yang telah ditanam atau dibina dalam masa tiga tahun; Di sinilah tuntutan NCR Abdul Rauf gagal, sebab dia tak dapat buktikan yang dia tinggal di pulau tu selain dari dia duduk di situ sebagai pengutip telur penyu. Dia juga tak bina sebarang struktur tetap di atas pulau tu untuk sokong tuntutannya. Rumusan: Ditolak 3. Tuntutan Haji Abdillah Haji Abdillah bernasib baik sebab dia dapat buktikan yang keluarganya dah mewarisi ‘rumah warisan’ dan kebun kelapa dari nenek moyangnya. Kewujudan ‘rumah warisan’ dan kebun kelapa tu dapat membantu meyakinkan mahkamah tentang pendudukan berterusan telah berlaku. Haji Abdillah boleh buat tuntutan NCR sebelum pulau tu diisytiharkan sebagai Kawasan Dilindungi. Tapi, dia dah buat silap sebab tak daftar tanahnya tu dengan kerajaan negeri Sabah lebih awal. Jadinya, kerajaan negeri tak keluarkan apa-apa hak milik tanah yang kata tanah tu miliknya, dan hal ni dah buatkan tanah tu jadi milik negeri. Perkara ni ada di bawah Seksyen 84 Ordinan Tanah Sabah yang menyatakan, tanah yang tidak didaftarkan akan menjadi tanah negeri. Semua tanah yang belum dituntut atau tuntutannya telah ditolak, akan menjadi hak milik Kerajaan Status baru Pulau Sipadan sebagai kawasan dilindungi dah merumitkan lagi tuntutan Haji Abdullah. Ini kerana, Seksyen 9 Akta Kawasan Larangan dan Tempat Larangan 1959 menyatakan, Kerajaan Persekutuan kini mengawal semua aktiviti di pulau itu dan tak ada sesiapa pun dibenarkan berada di pulau itu tanpa kebenaran dari Kerajaan Persekutuan. Jadi, dia tak boleh tuntut pulau tu sekarang, sebab kerajaan negeri dah tak ada kuasa nak keluarkan hak milik kepadanya, sebab tanah tu milik Kerajaan Persekutuan. Mana-mana orang yang cuba memasuki atau berada di kawasan dilindungi atau tempat yang dilindungi dan yang gagal berhenti selepas dicabar sebanyak tiga kali oleh pegawai yang diberi kuasa boleh ditahan secara paksa, yang mana paksaan boleh jika perlu untuk memberi kesan penahanan itu yang mana boleh membawa kepada kematian Kita mungkin setuju yang hal ni nampak macam tak adil kepada keluarga-keluarga berkenaan yang kehilangan pendapatan dan tanah mereka. Jadinya, mahkamah buat keputusan yang keluarga ni perlu dapat pampasan. Rumusan: Rumit – Haji Abdillah boleh dapatkan NCR terhadap pulau, tapi dia kehilangan tuntutan NCR itu. Hanya satu keluarga yang dapat pampasan Pada akhirnya, mahkamah putuskan yang kedua-dua keluarga ni tak patut dapat apa-apa pampasan bagi kehilangan pendapatan mereka sebagai pengutip telur penyu. Hal ni mungkin nampak macam tak adil, tapi mahkamah buat keputusan yang ia tak masuk akal untuk bagi pampasan, bila penjualan dan pengambilan telur penyu dibuat secara tak sah di bawah Seksyen 87(4) Enakmen Pemuliharaan Hidupan Liar Sabah 1997. Mana-mana orang yang – (a) mengumpul atau mempunyai dalam miliknya apa-apa telur penyu (b) menjual mana-mana telur penyu, melakukan suatu kesalahan Hanya keluarga Haji Abdillah yang diberikan pampasan kerana kehilangan tuntutan NCR terhadap pulau, sebab dia dapat membuktikan yang dia dah tinggal di pulau tu. Keluarga Abdul Rauf pula tak dapat buktikan kes mereka, jadinya mereka tak dapat apa-apa. Akhirnya, kedua-dua keluarga ni keluar dari pulau dan dilarang dari ambil telur penyu. Walaupun dah tinggal di sana sejak berabad, mereka tidak dapat membuktikan sepenuhnya di mahkamah untuk memenuhi kriteria NCR. Haji Abdillah boleh buat tuntutan, tapi hilang secara teknikal sebab dia tak daftar tanahnya tu lebih awal. Apa yang menyedihkan, keluarga Abdul Rauf kena terima yang mereka tak dapat apa-apa pampasan. Keputusan itu mungkin nampak keras, tapi dengan perubahan masa, undang-undang juga akan berubah. Perubahan yang dimaksudkan untuk faedah jangka panjang mungkin menyebabkan kerugian jangka pendek. Oleh kerana keperluan untuk melindungi Sipadan sebagai kawasan dilindungi, undang-undang mungkin menyebabkan sesetengah kumpulan kehilangan mata pencarian mereka, dan dalam hal ini, bahkan tanah mereka yang dah bergenerasi. Sama ada ini betul atau tak, terpulang kepada korang semua untuk menilainya."
大马雇主可以因为你拿太多MC而解雇你吗？ [Click here for English version] 试着想：你把人生宝贵的8年都贡献给了你的工作。你很热爱你的工作，你也热爱你的公司….但是当你拿到等待已久的健康检查报告后，所有东西都在一夕之间都变了。因为你被确诊患上了胃癌。 你现有的选择是延长你的休假至6个月或辞职。然而急于庞大的医药费，辞职可能会更快的让你没命。这时，你的上司已另有计划准备给你。他本人亲自告知你，因情况所逼他没法不选择辞退你。他还补充，如果让你休长病假，公司将会因你的离职而损失惨重。 惊吓之余，你很好奇：上司因你患病而辞退你的行为是合法的吗？ 上司不能因为你拿病假而开除你 在马来西亚劳工法第60F条（Employment Act 1955) 文中指出: 作为一名员工，如果你身体真的感到不舒服，你是有权力申请病假。即使你没有住院，员工是可以享有薪病假的。 每个待在公司两年以下的员工，是有资格拿14天的病假。你为公司效劳越久（做越多年），你就有更多的病假可以申请，那是你的福利。只有医生批准的MC才能拿来申请病假。可是，不是每个人都可以那么容易拿到医生的MC。可能是因为clinic太远你去不到，也有可能你真的头很晕走不出家门去看医生。如果是这样的情况，老板是不可以炒掉你或对你采取任何行动。在劳工法里有提到，你还是可以在合理的情况下申请病假，就如所提的类似情况。 那如果你需要的MC不只是一天的话又该怎么办？ *老板奸笑 现在可以炒掉你了 终于* 答案是，老板还是不可以因为这样而炒掉你。马来西亚工业法第20条文 (Industrial Relation 1976)保护你以免被老板随便开除，里面指出如果你觉得老板没有给你合理或正当理由就开除你，你可以通过书写的方式来投诉你的不满。 所以假如你被诊断得了水痘或骨折—很明显的你需要不只是一天的休息，老板不能因为你生严重的病而开除你。只要你有医生的证明你都可以休息超过一天的。 那如果是短期都治不好的疾病呢？ 开除患病员工是最后选择 但也是一种选择 突然中风和瘫痪可能会让你没了工作。因为你很大可能不可以继续工作了，如果公司还继续支付你薪水，这样对公司也不公平。这时公司应该让判伤委员会来应付这些情况。公司可以以患病的理由开除你，但是他们必须调查你生病的原因。例如： 疾病的种类 在恢复期间的缺席次数 患病员工对于公司和其他员工的影响 患病员工的工作性质 在老板开除患病员工之前，这些只是其中几个该考虑的因素。切记，对于患病员工，开除是最后的选择不是首选。 在现有的案例里，有着不同的解决方案。比如在这个MHS Aviation Sdn. Bhd. v Zainol Akmar Mohd Noor，某员工在被诊断出心脏病后，被老板开除了。法官最后判开除无效，认为老板开除员工不是很公正。就因为员工有心脏病就认为是永久性疾病，没有更深入的去调查是什么种类的心脏病。心脏病有很多种，虽然都是会致命，但不是每一种都是永久的。有些是吃药、疗养了就会痊愈，可是这家公司的老板即没深入调查也没给患病员工时间恢复。所以只要员工是有可能恢复健康，就不需要开除他。 另一个案例Gopalakrishnan A/L Vasupillai v Goodyear Malaysia Berhad and Anor就是，公司以患病为理由开除了做了11年的员工，就因他膝盖严重受伤。法官的判决是公司应该手下留情，不应该马上开除生病的员工。因为公司是应该更有社会意识来考虑员工们的感受。只要员工还肯工作，就算是降职，老板就应该尝试提供员工其他的选择。 如果你觉得被老板开除的不合理，你可以…. 你可以起诉你的老板和公司 换句话说，如果你觉得老板因你生病就炒掉你很不公平，你可以到工业法庭投诉你的遭遇。马来西亚工业法第30(5)条文指出，法官都会公平公正的看待你的诉求。简单的来说，法庭会为被不公平对待的员工争取福利。但! 记得你只有60天的期限来举报。你可以浏览以下的官方网站来得知详情。 如果你被法官判老板不正当辞退你，你可以享有特定的福利。胜诉的员工可以在Employment (Termination and Lay-off Benefits Regulations)1980 来获得你应得的福利。然而，不同的公司有不同的合约条件，有些会在开除你后，提供你补助金。所以，最好的做法就是检查或是看清楚你和公司之间的合约。
"In Malaysia, can you withdraw your resignation letter after submitting it? Imagine this: One day, you get into an argument with your boss and, in an impulsive decision, you decide to quit. You send out an e-mail to your whole team, including your boss, saying you’re resigning. Within minutes, your boss sends you a reply saying he accepts your resignation. But the next day, once you’ve cooled down, you realise that the problem was a very petty one and you regret acting hastily. After all, this is your dream job and the pay is great! So you go up to your boss’ office to apologise and you tell him that you’d like to withdraw your resignation. But he declines your request, stating that you have officially resigned and have started serving your notice period. You’re in so much trouble because well, you just lost your job! You now want to know if there’s anything you can do to get your resignation—and crucially—your job back. A resignation that has been accepted cannot be withdrawn When you send a resignation letter, you’re basically asking for your contract with your company to be cancelled. We’re referring to the contract that your company hands you at the start of your employment. This contract is an agreement that will basically state that your company has hired you for a particular role. And once you’ve submitted the resignation and your boss has agreed to it, the contract will be cancelled and you can’t take your resignation back. Even if you tried to withdraw it as soon as possible, it still won’t help your case. In Chong Kok Kean v Citibank Berhad [2019], the employee, Kok Kean, had tendered his resignation on October 13th 2014. But four days later, he sent his employers, Citibank, another letter stating that he wanted to withdraw his resignation. The court decided that the resignation could not be withdrawn, even though the employee had tried to withdraw it within a short span of time. So, we now know that once accepted, a resignation can’t be taken back. So does that mean that if your boss didn’t accept your resignation, there might be a chance for you to withdraw it? That can get a bit complicated, because under the law, ‘acceptance’ can have a slightly different meaning. What exactly amounts to ‘acceptance’ of a resignation? When you send your resignation notice, you might think that only an official email or letter acknowledging it is considered as an acceptance.But what if your boss didn’t respond at all? Interestingly, even if you don’t receive an official response, your resignation can still be considered valid and effective. Let’s revisit the case of Chong Kok Kean v Citibank Berhad mentioned above again. In that case, the employers had not formally responded to Kok Kean’s resignation letter. However, the court decided that it didn’t matter that the employers had not responded to the resignation, as once the letter was sent in, the resignation was valid and could not be withdrawn. But wouldn’t you need an official letter to confirm it? Not really. See, in your employment contract, it will state what you need to do in order to resign. Typically, it will say you need to serve X months’ notice or pay the company a certain sum to the company. It would look something like this: “… termination by either party will require one (1) month written notice or payment of one (1) month salary in lieu of notice...” The key word here is notice. As long as you have sent your resignation in writing, that is enough to terminate the contract. Your boss doesn’t need to agree or even respond to your resignation. Once he is aware that you want to resign, that will amount to acceptance. This requirement is also stated and in the law and it can be found in the Employment Act 1955. Section 12 states: Either party to a contract of service may at any time give to the other party notice of his intention to terminate such contract of service. But despite you not being able to withdraw your resignation, there is still a chance that it could happen. That decision, though, would not be up to you. It depends on your boss. You can keep your job… if your boss agrees Just like how your boss has no right to prevent you from leaving once you’ve served your notice, you also have no right to prevent your boss from accepting your resignation. However, you can still keep your job IF your boss agrees to let you withdraw your resignation. So it needs both parties to agree. In the Industrial Court case of Sime Darby Bhd (Sime Darby Plantations- Hadapan Estate) v Khalid bin Abdul Rahman & Anor [1998], the employee had resigned due to some issues at work. He never attempted to withdraw the resignation. However, it was found that even if he did try to retract the resignation, it would not have been successful. The judge said: “...once a notice of resignation is given, the employment comes to an end on the expiry of the notice and cannot be unilaterally withdrawn save by mutual consent.” So, if your boss wants to let you continue working, he can. But at the same time, he still has the right to decline your request. Look out for what’s in your employment contract At the end of the day, it’s really important for you to know what your employment contract says about your rights as an employee. If, for example, your contract strictly states that you are not allowed to resign for the first 6 months, then you might have a chance to withdraw your resignation before you hear from your boss. However, if there is no such term is clause in your contract, you can’t take any legal action against him because no such thing was agreed upon. And even if you do bring your case to court, the general understanding is that your resignation can be withdrawn only if both you and your boss agree to it. So always be sure to know what your company policy is and read through your employment contract before signing on that line...as well as when signing your resignation letter."
"Kenapa ada peruntukan B. Inggeris dalam Akta Bahasa Kebangsaan? Ini fakta-faktanya Kalau korang ada ikut perkembangan semasa, korang mesti ada terbaca berita pasal keputusan Mahkamah Tinggi Pulau Pinang baru-baru ni yang menolak saman Parti Gerakan Rakyat Malaysia (GERAKAN) terhadap kerajaan persekutuan. Kisahnya, GERAKAN saman kerajaan sebab tak setuju dengan tindakan Kementerian Pendidikan memperkenalkan pembelajaran seni khat dan tulisan Jawi kepada pelajar Tahun Empat di sekolah vernakular. Bagaimanapun, Mahkamah tolak saman GERAKAN tu sebab Mahkamah dapati yang tulisan Jawi ni sebahagian dari Bahasa Melayu, yang juga adalah Bahasa Kebangsaan. Sebabnya, kalau rujuk Akta Bahasa Kebangsaan 1963/1967, walaupun dinyatakan tulisan untuk bahasa kebangsaan adalah tulisan rumi, tapi dalam masa sama – tak ada larangan untuk tulisan Jawi digunakan. Jadinya di sini, tahulah kita yang Akta Bahasa Kebangsaan ni penting, dan sebab itu jugalah mahkamah buat keputusan selepas merujuk Akta ini. Tapi... korang tahu tak, apa tu Akta Bahasa Kebangsaan, dan apa isi-isi penting dalamnya? Akta ni dipinda selepas 10 tahun kita merdeka Kalau kita tengok Perkara 152, Perlembagaan Persekutuan, memang dah jelas ditetapkan bahawa Bahasa Melayu adalah Bahasa Kebangsaan Malaysia. Tapi dalam masa sama, penguatkuasaan perkara ni tak lah dibuat secara menyeluruh lepas kita merdeka pada tahun 1957. Sebabnya, dinyatakan juga yang kedudukan bahasa Melayu akan dinaikkan peranannnya secara berperingkat selama 10 tahun selepas merdeka. Hal ni ada diungkapkan dalam Perkara 152 (2), Perlembagaan Perskutuan: “...selama tempoh sepuluh tahun selepas Hari Merdeka, dan selepas itu sehingga diperuntukkan selainnya oleh Parlimen, bahasa Inggeris boleh digunakan di dalam kedua-dua Majlis Parlimen, di dalam Dewan Undangan tiap-tiap Negeri, dan bagi segala maksud rasmi yang lain.” Jadinya, bila sampai pada tahun 1967, usaha nak memartabatkan bahasa Melayu sebagai Bahasa Kebangsaan mula disuarakan, khususnya di kalangan pejuang-pejuang bahasa dan pertubuhan-pertubuhan Melayu. Tapi, kerajaan masa tu tak berapa serius sangat dengan perkara ni, sampailah ia membuatkan ramai pihak marah sehingga terjadinya protes mahasiswa di Universiti Malaya (UM). Akhirnya, kerajaan pun akur dan meminda akta berkenaan yang kemudiannya dikenali sebagai Akta Bahasa Kebangsaan 1963/1967. Walaupun akta tu diluluskan oleh Parlimen pada tahun sama, tapi ia masih mengundang rasa tak puas hati ramai pihak. Sebabnya, cita-cita pejuang bahasa nak melihat bahasa Melayu menjadi sebagai bahasa rasmi tunggal nampaknya tak berjaya. Sebabnya, akta ni masih dibayangi dengan peruntukan yang membolehkan penggunaan bahasa Inggeris dan bahasa-bahasa lain. Reaksi ni juga dah membawa kepada protes besar-besaran di Dewan Bahasa dan Pustaka (DBP) pada 3 Mac 1967, apabila hampir 2,000 orang berhimpun membantah tindakan kerajaan. Perkara ini juga membawa kepada terusungnya ‘Keranda 152’ yang terinspirasi dari puisi Sasterawan Negara, Datuk Usman Awang. Bagaimanapun, akta ni tetap diteruskan dan kali terakhir ia dipinda adalah pada tahun 1994. Sehingga ke hari ni, ia menjadi rujukan utama bila kita bercakap soal Bahasa Kebangsaan. Sebenarnya, akta ni taklah panjang sangat dan cuma ada 11 Seksyen saja. Dan dalam banyak seksyen tu, mungkin ada fakta-fakta menarik yang kita boleh tengok, contohnya… 1. Bahasa Melayu adalah bahasa pengantar untuk segala urusan rasmi kerajaan Inilah mungkin antara peruntukan terpenting dalam Akta Bahasa Kebangsaan, yang kita semua kena tahu. Sebabnya, Seksyen 2, Akta ini menyatakan dengan jelas yang Bahasa Kebangsaan (bahasa Melayu) hendaklah digunakan bagi maksud rasmi. Hal ni diperkuatkan lagi melalui Pekeliling Perkhidmatan Bilangan 9 Tahun 2011 yang menjelaskan urusan rasmi kerajaan tu termasuklah – kenyataan rasmi, menyuarat rasmi, ucapan, taklimat, seminar dan sebagainya. Bagaimanapun, pekeliling ni masih bagi kelonggaran pada bahasa lain (seperti Bahasa Inggeris) untuk digunakan, contohnya kalau sesuatu majlis rasmi tu disertai orang bukan warganera atau delegasi luar negara. Tapi sebelum ni, Malaysia pun ada kontroversi bila Menteri Kewangan, Lim Guan Eng ada menggunakan bahasa Mandarin sebagai salah satu medium terjemahan kenyataan rasmi kerajaaan. Betul ke apa yang Guan Eng buat tu? 2. Akta ni membenarkan terjemahan kenyataan rasmi ke bahasa lain Menurut Guan Eng, kenyataan rasmi dari kementeriannya tu memang dikeluarkan dalam bahasa Melayu, dan hanya diterjemah ke bahasa lain jika perlu. Tambahnya, selalunya kenyataan rasmi dalam bahasa Melayu akan diterjemah ke bahasa Inggeris untuk kegunaan media antarabangsa dan cuma sekali sekala je akan diterjemah ke bahasa Mandarin kalau perlu. Sebenarnya, apa yang dilakukan oleh Guan Eng tu tak salah kalau kita rujuk Akta Bahasa Kebangsaan 1967. Sebabnya, Seksyen 3, Akta itu menyatakan: “Tiada apa-apa jua dalam Akta ini boleh menyentuh hak Kerajaan Persekutuan atau hak Kerajaan mana-mana Negeri untuk menggunakan apa-apa terjemahan dokumen atau perutusan rasmi dalam mana-mana bahasa lain bagi apa-apa maksud yang difikirkan perlu demi kepentingan awam.” Bagaimanapun, masih ada pihak yang anggap apa yang Guan Eng buat tak perlu sebenarnya sebab dah memadai sesuatu kenyataan rasmi kerajaan diterjemah ke bahasa Inggeris saja. Manakala bagi bekas Ketua Hakim Negara, Tun Abdul Hamid pula, apa yang penting – versi rasmi itu haruslah di dalam bahasa Melayu dan kemudiannya hanya boleh diterjemahkan ke bahasa lain jika ia untuk kepentingan awam. Kalau kita rujuk balik apa yang diceritakan di awal tadi, masa akta ni digubal ramai pihak yang rasa tak puas hati sebab ia masih dibayangi dengan bahasa Inggeris. Hal tu sebenarnya memang ada dalam Akta Bahasa Kebangsaan, sebab… 3. Bahasa Inggeris masih boleh digunakan dalam Parlimen dan Dewan Undangan Negeri Hal ni disebut dalam Seksyen 5, Akta Bahasa Kebangsaan yang menetapkan bahawa bahasa Inggeris dibenarkan di Parlimen dan Dewan Undangan Negeri (DUN). Dengan itu, seseorang Ahli Parlimen atau Ahli DUN (ADUN) dibenarkan untuk memberikan ucapan dalam bahasa Inggeris, tapi dengan syarat jika ia diizinkan oleh Yang Di-pertua Dewan. Ketika menjelaskan hal ni di Parlimen, Perdana Menteri pertama, Tunku Abdul Rahman ada kata – yang Seksyen 5 diwujudkan sebab nak memelihara demokrasi Parlimen dengan tujuan memberi peluang kepada ahli-ahli Parlimen yang masih lemah dalam Bahasa Melayu, untuk kemukakan pendapat masing-masing dengan jelas. Tapi pada tahun lepas, pihak DBP ada kata yang mereka akan ajurkan kursus bahasa Melayu kepada Ahli Parlimen. Jadinya, mungkin di masa akan datang dah tak ada masalah lagi untuk Ahli-ahli Parlimen kita berbahasa Melayu di Parlimen. 4. Bahasa Inggeris juga boleh digunakan dalam mahkamah Kalau tadi bahasa Inggeris boleh digunakan di Parlimen dan DUN, bahasa sama juga sebenarnya boleh digunakan di Mahkamah. Ini kerana, walaupun Seksyen 8, Akta Bahasa Kebangsaan menetapkan bahasa Melayu mesti digunakan dalam mana-mana prosiding mahkamah di negara ini (kecuali pemberian keterangan oleh seseorang saksi), masih lagi ada kelonggaran untuk bahasa Inggeris digunakan. Kita boleh tengok apa yang dinyatakan dalam Seksyen 8, Akta, iaitu: “… Dengan syarat bahawa Mahkamah boleh, sama ada atas kehendaknya sendiri atau atas permintaan mana-mana pihak dalam mana-mana prosiding dan selepas menimbangkan kepentingan keadilan dalam prosiding itu, memerintahkan supaya prosiding itu (selain pemberian keterangan oleh seseorang saksi) dijalankan sebahagiannya dalam bahasa kebangsaan dan sebahagiannya dalam bahasa Inggeris.” Perkara ni dibuat kerana nak memudahkan perjalanan mahkamah, sebab seperti mana yang kita tahu banyak istilah undang-undang ada dalam bahasa Inggeris. Tapi, bagi Pensyarah Kanan, Fakulti Undang-undang UKM, Dr. Ramalinggam Rajamanickam, kini dah tiba masanya untuk bahasa Melayu dimartabatkan sebagai bahasa mahkamah di Malaysia. Katanya, penterjemahan istilah-istilah undang-undang yang lebih tepat ke bahasa Melayu harus diusahakan, selain menerbitkan buku-buku dan penulisan rujukan undang-undang dalam bahasa Melayu. Oleh itu, dengan sendirinya nanti bahasa Melayu akan lebih mudah dan selesa digunakan dalam mahkamah, serta matlamat Akta Bahasa Kebangsaan untuk kegunaan bahasa di Mahkamah akan tercapai. [BACA LAGI: Pemartabatan Bahasa Melayu Sebagai Bahasa Mahkamah di Malaysia] Apa yang pasti, walaupun akta ni tak la terlalu panjang macam akta-akta lain, tapi akta ni tetap menjadi rujukan utama kalau kita nak berbincang soal Bahasa Kebangsaan. Bagaimanapun, masih ada orang yang merungut sebab akta ni tak peruntukkan sebarang implikasi perundangan untuk mana-mana pihak yang melanggarnya. Senang kata, tak ada hukuman macam denda atau sebagainya kalau kita melanggar peruntukan akta. Dan sebab itu jugalah… DBP nanti mungkin akan ada kuasa untuk denda korang Disebabkan banyak rungutan dan ada juga pihak yang kata DBP ni ‘tak ada taring’ dalam memartabatkan Bahasa Kebangsaan, makanya DBP kata yang pihaknya sedang dalam proses siapkan draf pindaan Akta Bahasa Kebangsaan yang dijangka siap sepenuhnya pada akhir tahun ni. Antara yang dimasukkan dalam draf tu adalah memberikan DBP kuasa dalam penguatkuasaan undang-undang berkaitan penggunaan Bahasa Melayu. ""Kita lihat sekarang ini dalam majlis-majlis rasmi kerajaan ada yang menamakan program kerajaan dalam bahasa Inggeris, umpamanya program Food Bank sedangkan ia ada namanya dalam bahasa Melayu iaitu Bank Makanan,"" – Datuk Abang Sallehuddin Abang Shokeran, Ketua Pengarah DBP. Dipetik dari Astro Awani. Tapi dalam masa sama, Abang Sallehuddin ada bagi jaminan yang DBP nanti tak akan jadi ‘Polis Bahasa’ tapi sebaliknya sebagai ‘Pendakwah Bahasa’. Sebab katanya, tugas dakwah bahasa lebih berkesan, kerana dengan cara tu kesedaran dapat dipupuk dan mewujudkan rasa tanggungjawab. Tapi dia masih tak menolak akan ada hukuman undang-undang sebagai jalan terakhir. Kesimpulannya, seperti mana yang dinyatakan oleh ramai pihak – Akta Bahasa Kebangsaan perlu diberikan nafas baru supaya ia kekal releven, apatah lagi kita telah merdeka dan mempunyai Bahasa Kebangsaan sendiri selama lebih 60 tahun. Memartabatkan Bahasa Kebangsaan tak bermakna kita memencilkan bahasa lain dan memang terbukti pun yang seseorang itu lebih mudah mengakses ilmu jika dia mengetahui pelbagai bahasa. Tapi untuk Bahasa Kebangsaan, kalau bukan kita yang memartabatkannya, siapa lagi?"
"Semua penceramah kena ada tauliah. Tapi kenapa ada yang dikecualikan? Di Malaysia ni, mendengar ceramah agama dah jadi rutin biasa untuk mereka yang pergi masjid dan surau. Kalau jarang pergi masjid dan surau pun, selalunya kita akan dengar ceramah melalui radio, tv atau Youtube. Tapi dalam keadaan kita suka mendengar ceramah ni, kita juga kadang-kadang ada dengar pasal penceramah yang ditahan pihak berkuasa agama. Antara berita terbaru yang kita dengar adalah tentang tindakan Jabatan Agama Islam Melaka (JAIM) menahan penceramah bebas, Ustaz Wan Ji Wan Hussin kerana didakwa mengajar tanpa tauliah. Kalau kita pergi lebih awal lagi pada tahun 2009, Mufti Perlis (masa tu bekas Mufti sebelum dilantik semula pada tahun 2015), Datuk Dr Asri Zainul Abidin atau Dr Maza juga pernah ditahan oleh Jabatan Agama Islam Selangor (JAIS) kerana dakwaan yang sama. Bila kita dengar cerita macam ni, kita dapat tahulah yang isu tauliah ni sangat penting di Malaysia. Tapi kenapa pula kena ada tauliah, dan macam mana sistem ni berfungsi? Pendakwah kena lulus ujian dan temuduga sebelum boleh dapat tauliah Seperti mana yang kita tahu, hal berkaitan agama Islam adalah di bawah bidang kuasa negeri, jadi soal tauliah ni pun di bawah kelolaan Majlis Agama Islam Negeri (MAIN) dan Jabatan Agama Islam Negeri (JAIN) masing-masing. Tapi, undang-undang, peraturan dan prosedur pasal tauliah ni boleh dikatakan lebih kurang sama je di antara negeri-negeri. Tapi kalau korang rasa tauliah ni ada satu jenis je, korang pun nampaknya silap. Sebabnya, tauliah ni ada beberapa jenis, yang antaranya: Tauliah berceramah Tauliah mengajar fardu ain Tauliah mengajar al-Quran Tauliah khas (contoh: Perbandingan Agama/Perbankan Islam/Motivasi) Kalau nak dapat tauliah ni, mana-mana pendakwah mesti buat permohonan di Jabatan Agama Islam Negeri (JAIN) masing-masing. Kalau di Selangor, mereka kena isi borang permohonan tauliah mengajar di pejabat JAIS atau muat turun di sini. Lepas borang itu dihantar, pemohon akan dipanggil ke pejabat JAIS untuk ambil ujian bertulis. Kalau lulus ujian bertulis, pemohon akan dipangil sekali lagi untuk jalani temuduga bersama – Bahagian Dakwah JAIS. Keputusan sama ada pemohon layak atau tak untuk dapat tauliah kemudiannya akan diputuskan oleh Jawatankuasa Tauliah Majlis Agama Islam Selangor (MAIS), lepas mereka puas hati dengan syarat-syarat dan tapisan keselamatan. Tempoh tauliah tu pula selama 5 tahun, dan permohonan pembaharuan tauliah kena dibuat 6 bulan sebelum tamat tempoh tauliah. Kalau buat permohonan lepas tarikh tauliah tamat, pendakwah tu kena buat permohonan baru dan ulang prosedur awal tadi. Tapi apa hukuman untuk orang yang sampaikan ceramah agama tanpa tauliah ni? Lain negeri, lain tauliah yang diperlukan Sebelum kita cerita pasal hukuman ni, ada satu perkara yang kita semua kena tahu. Sebenarnya, tauliah hanya terpakai untuk negeri yang pendakwah/penceramah tu dapat je. Contohnya, kalau dia dapat tauliah di negeri Selangor dan tak ada tauliah di negeri Perak, maknanya dia cuma boleh berceramah di negeri Selangor je, dan tak boleh di Perak. Kalau buat juga, dia berisiko ditahan kerana mengajar tanpa tauliah. Seksyen 108, Enakmen Pentadbiran Agama Islam (Perak) 2004 menyatakan: “Mana-mana orang yang mengajar agama Islam atau mana-mana perkara tentang agama Islam tanpa tauliah… melakukan suatu kesalahan dan apabila disabitkan boleh didenda tidak melebihi lima ribu ringgit atau dipenjarakan selama tempoh tidak melebihi tiga tahun atau kedua-duanya.” Bagaimanapun, ada negeri-negeri yang hukuman berbeza di antara satu sama lain, seperti denda RM5,000 atau penjara 3 tahun (Kedah, Pulau Pinang, Johor); RM3,000 atau penjara 2 tahun (Selangor); RM2,000 atau penjara setahun (Pahang) dan RM1,000 atau penjara setahun (Negeri Sembilan). Makanya, nak ataupun tak, setiap pendakwah tu mestilah mohon tauliah di negeri yang mereka nak sampaikan ceramah agama. Dapat tauliah di satu atau dua negeri tak bermakna mereka boleh beri ceramah di semua negeri di Malaysia ni. Bagaimanapun, dah dapat tauliah ni tak bermakna korang bebas beri ceramah macam tu je. Sebabnya, Jawatankuasa Tauliah masih ada hak untuk gantung atau tamatkan tauliah kalau pendakwah tu melanggar syarat-syarat yang telah ditetapkan. Antara syarat-syarat tu adalah: Memberi ceramah berdasarkan al-Quran dan al-Sunnah berdasarkan akidah Ahli Sunnah Wal Jamaah (Sunni). Berakhlak mulia dan tak terlibat dengan jenayah. Tidak memfitnah saudara Islam lain. Tak menyentuh mana-mana parti politik masa berceramah. Mematuhi undang-undang negara dan setiap garis panduan yang dikeluarkan oleh Majlis Agama Islam Negeri (MAIN) dan Jawatankuasa Tauliah. Tapi masih ada pendakwah yang dikecualikan dari dapat tauliah Walaupun kita nampak undang-undang pasal tauliah ni agak tegas, tapi dalam keadaan tertentu masih ada pengecualian diberikan. Kalau kita rujuk, Peraturan 22 dalam Peraturan-Peraturan Tauliah (Negeri Selangor 2008) ada orang yang dikecualikan dari mendapat tauliah. Antaranya adalah: Alim Ulama atau tokoh agama tempatan tertentu atau Alim Ulama atau tokoh agama luar negeri yang dijemput secara rasmi atau atas jemputan khas Kerajaan Persekutuan, Kerajaan Negeri, jabatan atau agensinya; Mufti-mufti Negeri dan ahli Jawatankuasa Fatwa Negeri-Negeri; Hakim-hakim Mahkamah Syariah dan Pendaftar Mahkamah Syariah Negeri-Negeri; Menteri atau ahli Majlis Mesyuarat Kerajaan Negeri yang bertanggungjawab dengan Hal Ehwal Islam atau Ketua Jabatan Agama Islam Negeri atau ahli Majlis Agama Islam Negeri-Negeri; dan Pegawai Hal Ehwal Islam atau pegawai Agama Islam Persekutuan dan Negeri, Pensyarah-pensyarah Fakulti Pengajian Islam Universiti-universiti tempatan atau Institusi Pengajian Tinggi Tempatan, Guru Agama Kementerian Pendidikan atau Guru Agama Jabatan Agama Islam Negeri. Tapi kalau kita baca di awal tadi, kita ada nampak yang bekas Mufti Perlis dan pensyarah universiti, Dr Asri tetap ditahan JAIS sebab tak ada tauliah. Macam mana pula tu kan? Menjawab persoalan ini, Exco Selangor, Datuk Dr Hasan Mohamed Ali masa tu kata, walaupun ada pengecualian – perkataan 'boleh' itu juga boleh menjurus kepada 'tidak boleh', bergantung kepada Jawatankuasa Tauliah. Pengarah JAIS, Datuk Muhammed Khusrin Munawi masa tu pula kata, walaupun ada pengecualian – mereka yang nak berceramah di Selangor tetap kena ikut prosedur tauliah yang ditetapkan. Tambahnya, Mufti Perak, Tan Sri Harussani pun pernah mohon tauliah di Selangor, walaupun dia seorang mufti. “Saya tidak nampak masalah dengan prosedur ini. Contohnya, Mufti Perak Tan Sri Dr Harussani Zakaria pernah buat permohonan kepada JAIS untuk menyampaikan ceramah di Selangor sebelum ini. Dengan bahasa mudahnya, jika seseorang nak masuk ke rumah orang lain, dia perlu beri salam dahulu, perlu ada adab, hormat kepada tuan rumah, bukan main masuk saja.” – Katanya, dipetik dari Bernama. Jadi di sini, kalau nak selamat, sesiapa saja yang nak sampaikan ceramah agama kenalah dapatkan tauliah dulu. Dalam waktu sama, pihak yang menjemput penceramah ni kenalah berhati-hati, dan pastikan dulu penceramah yang dijemput tu ada tauliah. Jawatankuasa masjid boleh digantung, kalau jemput penceramah tanpa tauliah Sebelum ni, JAIS ada keluarkan amaran kepada pengerusi, setiausaha serta ahli jawatankuasa masjid/surau supaya mematuhi undang-undang supaya tak jemput mana-mana penceramah yang tak ada tauliah. Manakala Sultan Perak, Sultan Nazrin Muizzuddin Shah pula memberi perkenan supaya pengerusi jawatankuasa masjid/surau yang membenarkan premis mereka digunakan untuk program parti politik dan ceramah tanpa tauliah, digantung tugas. Kalau kita rujuk Kaedah 33 dalam Kaedah-Kaedah Pegawai Masjid dan Jawatankuasa Kariah (Negeri Selangor) jelas dinyatakan bahawa MAIS boleh menggantung atau menamatkan jawatan pegawai atau anggota jawatankuasa masjid/surau sekiaranya mereka: (1) tak mematuhi arahan MAIS, JAIS atau kaedah-kaedah yang ditetapkan, dan (2) bertindak mencemarkan agama Islam. Oleh itu, pihak masjid dan surau kenalah berhati-hati kalau nak jemput mana-mana individu untuk sampaikan ceramah. Selain lebih selamat, ia juga dapat elakkan fahaman salah atau sesat dari disebarkan dalam kalangan masyarakat. Kalau korang duduk di Selangor, JAIS ada sediakan sistem yang membolehkan korang semak penceramah-penceramah yang ada tauliah, boleh semak di sini."
"Some of Grab's OKU drivers couldn't get their license despite passing the test. Here's why Unless you’ve ever gotten into an e-hailing car with an OKU driver before, you may be surprised to learn that there are disabled drivers working with various e-hailing companies in Malaysia. If some of the common reactions relayed to us by some of these drivers are true, then it’s probably safe to say that being driven around by a Person With Disabilities (PWD) driver is something outside our usual realm of experience: “Saya akan bagitau, saya ni pekak, tapi mungkin ada yang tengok muka dan tak percaya.” —Nor’Ain, Grab driver, speaking through a sign language interpreter. But there are more PWD drivers than you might think. Or at least, that’s what we felt when we attended Grab’s Grab for Good event, to celebrate their partners with disabilities. There, we met a gathering of more than 350 Persons With Disabilities (PWD) who are currently making a living through Grab, either as a driver or a delivery partner. We managed to speak to two PWDs currently driving with Grab and we found out that, with the introduction of the PSV regulations, they met an unexpected issue – some PWDs who underwent the whole regulation process later found out that they couldn’t collect their PSV license. If you aren’t familiar with this PSV thing, it’s basically a bunch of laws and regulations introduced by the government to ‘legalize’ the Malaysian e-hailing industry. We’ll get into the details a little later in the article, but let’s first address something else you might have been wondering about…. Can PWDs actually drive e-hailing cars? Is this allowed under the new PSV regulations? If you’re unfamiliar with the PSV issue, we’ve covered this topic many, many times before this. So if you’ve read some of them before, great, have a cookie and skip to the next paragraph. But if you haven’t, here’s a short primer on it: In many countries (Malaysia included), e-hailing companies have always operated within a grey area of the law. They’re kind of like a taxi, but without the licensing and regulations that taxis are required to have. So, in order to make e-hailing legal in Malaysia, our government made some changes to the Land Public Transport Act to include definitions and regulations for e-hailing vehicles. E-hailing drivers would need to meet these new regulations in order to get a license to operate, known as a Public Service Vehicle (PSV) license. The license essentially recognizes them as commercial drivers, earning money by driving passengers around – essentially similar to the license that taxi drivers have. [READ MORE: 5 things Grab customers need to know about Malaysia's new e-hailing law] Now, the thing about PSV licenses are: PWD drivers originally were NOT allowed to have a commercial driving license. This essentially made PWDs who earned a living from driving e-hailing cars unable to continue working as one. But Transport Minister Anthony Loke decided to be inclusive with the license, stating that they will amend the JPJ rules to allow PWD drivers to be e-hailing drivers. This was a progressive move as, according to a statement from Grab, Malaysia will be one of the few countries that grants a commercial license to PWDs. But when we spoke to some PWD drivers at the event, we found out that... Some PWDs were disqualified AFTER passing the test At Grab for Good, we spoke to Siti Fatimah, who was one of the first e-hailing drivers to get her PSV license. She is wheelchair bound since birth, and drives Grab part-time after work if she still has the energy. When it was announced that PWD drivers were allowed to get a PSV license, she – along with 209 other PWD drivers – became part of the first batch to receive it. But despite passing the test, she found out that she couldn’t collect her PSV license. “Walaupun saya dah lulus lesen tu, tapi saya tak boleh collect saya punya lesen. Saya tak boleh buat apa. Stop dekat situ.” — Siti Fatimah So… what happened here? As it turns out, PWD drivers with mobility difficulties (ie, wheelchair bound) faced different issues from those with hearing or verbal difficulties. Let’s start with mobility issues first. PWD drivers with mobility issues If you look at the back of your driving license, you’ll notice all the different type of letters and cars listed at the back. If you drive a car, you’d likely have a class D, which are basically for vehicles below 3.5 tons. Motorcycles are either B, B1 or B2, depending on the size. PWDs with mobility difficulties would be given an A (motorcyle) or A1 (motorcar) class license, which indicates that they drive cars that have been modified for their needs. So for example, wheel-chair bound drivers would have extra knobs added onto their steering wheel to allow them to control the brakes and acceleration. Unfortunately, A1 class licenses are not allowed to get a PSV license. This distinction was not made earlier to PWD drivers, which led many, like Siti Fatimah, to go through the whole process only to find out that they weren’t eligible for it in the first place. PWD drivers with hearing difficulties Unlike drivers with mobility difficulties, those with hearing or speech difficulties are not categorized under the A1 class as they don’t require modifications to their car in order to drive it. However, they faced a different set of problems, one of them being inconsistencies during the physical test. There were drivers who passed the fitness test to get their standard driving license, which is the D license. But when they went through the PSV process, they failed the physical test. Nor’Ain Azizan, a deaf Grab driver, knows a few of her friends who had to drop out because of this. “Bagi kami OKU yang pekak, ada juga doktor yang tak luluskan. Masih hold dulu status mereka. Kebanyakan mereka kena buat peperiksaan semula.” – Nor’Ain Azizan, speaking through a sign language translator. But she doesn’t want her friends to give up hope, and continually encourages them to go through the process until they receive their license. The realities of driving for PWDs There were other issues that have been highlighted in the past, such as a lack of specially-trained instructors and disabled-friendly driving centers, which created some difficulty for PWD drivers attending the mandatory PSV courses and the subsequent exam. But outside of the difficulties with the test, there are also daily difficulties that PWD drivers have to face with their conditions. Nor’Ain, who is deaf, continually faces issues driving on the road as she couldn’t hear when other drivers honk their horns, especially the ones tailgating her car. Kadangkala, kereta dia dah datang dekat sangat (di belakang)...memang kita cepat-cepat ke lane sebelah. Bila dia lalu dan pandang, memang marahlah. Tapi sabar jelah, nak marah pun macam-mana? Sebab saya memang tak dengar (hon) —Nor’Ain And once, when she got into an accident, the other driver immediately blamed her; saying that it must have been her fault since she was deaf. Biasanya kalau kemalangan tu, bila orang yang bukan pekak ni terus dia akan cakap saya salah, saya tak dengar, saya pekak. Tapi bila tengok kamera polis kan, sebenarnya dia yang salah. – Nor’Ain Meanwhile, Siti Fatimah sees Grab as a flexible way for her to earn an extra income because, besides her day job, she also has to deal with day-to-day issues of managing her household. Sebab kat rumah pun saya settlekan semua sendiri, saya takde pembantu. Jadi (selain kerja) saya pun kena fikir hal rumah lagi. – Siti Fatimah At the time of writing, Siti Fatimah is still waiting for the Ministry of Transport’s response on whether she can get her license in the future; as she has committed the time to complete the process, and even passed the test. But Siti Fatimah emphasises that PWDs don’t want sympathy or handouts, but rather to just have the means to improve their own situation. She hopes that the licensing issues can be cleared soon for her and other drivers in her situation. Beri kami solution, beri kami peluang, kami tak nak simpati, kami nak peluang tu. Kami nak peluang memandu Grab untuk menambah income. – Siti Fatimah But Grab is doing their best to support PWD drivers (and others!) Currently, e-hailing PWD drivers are supported by their respective companies. To make the regulation process easier for them, e-hailing companies have agreed to pay for their RM320 certification fees. But some of them have tried to further support their drivers, hoping to improve their experience on the platform. So they aren’t just looking to sponsor them, but rather to create situations and opportunities for PWDs to earn a better living. Grab is putting in additional effort by trying to get a better insight into their PWD drivers in order to increase their quality of life. To do that, they’ve appointed 16 driver or delivery partners to represent their community under the Driver Representative Committee (DRC). Since the representatives are from the community itself, they can give a better understanding of what their drivers need, and what could make their job easier on the platform. They’re also looking to help improve communication between deaf drivers and passengers in general. Some passengers don’t expect their driver to be deaf, and so might be unsure on how to communicate with them (such as with giving additional directions). While Grab already provides in-car flip cards (pictured above) to assist with communication, they are also looking into other solutions such as: In-app notification cards—This will notify the user of a driver-partner is deaf GrabChat as the default communication channel—This is the chat function that’s already available within the Grab app In-app communication guides—For passengers to better interact with the deaf drivers. You can find this soon in the in-transit feed, which will be an upgrade from the flip cards you can currently find in your ride They’re also looking to include PWD enterprises in their other services such as GrabPay and GrabFood, We checked opened our Grab app and found a banner highlighting PWD enterprises near us. Currently there are two of them delivering to our office, which are RC Deaf Mission and The Bassment. But this won’t be the only ones, as there will be plans to introduce more differently abled merchants into the system. And if you don’t know yet, GrabPay can even be used for transactions in real life, just like an e-wallet. They have included this payment option for a few differently abled merchants if you visit their restaurant. So if you’re the type who prefers to be cashless or have a running account in your Grab app, this can be a convenient way to pay, in addition to supporting the PWD merchants. But it’s not just drivers. They’re also looking to make things better for passengers with disabilities. Grab will be running monthly training sessions for driver-partners on the skills to help passengers with physical disabilities, such as those who are wheelchair bound. Currently, 85 drivers have been trained, but they plan to reach 1000 by the end of 2020. It’s all part of the process While the PSV regulations made e-hailing unquestionably legal, it also gave birth to some early teething pains that led to some misunderstandings with procedures and regulations. When new regulations that affects a whole industry – not to mention a very new one – are introduced, unexpected problems are bound to be...well...expected. Some setbacks, such as drivers dropping out due to not wanting to commit to going through the process of getting certified, can be considered an ‘expected’ problem. But for these PWD drivers, the lack of clarity on license classes and from medical examiners was an unexpected and, for them, a disheartening result. A few of the drivers we talked to, such as Nor’Ain and Siti Fatimah, enjoyed the fact that e-hailing is an option for them as they now have other avenues to earn an income. Previously, their job options were pretty limited, and they are excited to have one that doesn’t require them to be in an office doing menial work. But instead of waiting for things to change, some e-hailing companies such as Grab have started their own initiatives to help the PWD communities. By creating opportunities and establishing an infrastructure, they are now giving PWDs a chance to earn a better life on their own."
"Malaysian fathers may finally be getting paternity leave. Here's why it's taking so long Whether it applies to you or not, maternity leave is something that’s to be expected at any company in Malaysia. It’s pretty much one of the 5 types of leaves that must be provided by your employer under the Employment Act 1955 – and new mothers will be paid throughout the maternity leave period. However, as the name implies, it’s something that’s only available to mothers who have just given birth as a means to recover from childbirth, nurture the newborn, and bond with it. Meanwhile, fathers will have to apply for annual or unpaid leave if they want to spend more time with their new child. Enter the idea of paternity leave. Paternity leave is a concept that isn’t new at all. Other countries have implemented paternity leave in addition to maternity leave, and example being our neighbours in Singapore; who have implemented 14 days of paternity leave for its part-time and freelance workers. But what’s the situation like in Malaysia? Fathers are lucky if they get one day of leave Currently, there are no laws (whether the Employment Act 1955 or any other employment related laws) that state private sector companies must provide paternity leave. Any paternity leave being offered in private Malaysian companies are purely on their own volition, and it’s up to them to dictate any additional conditions.The only exception to this is the government sector, where fathers are given paternity leave up to 7 days – provided under the Pekeliling Perkhidmatan Bilangan 9 Tahun 2002. In contrast, maternity leave is compulsory, whether within the government or private sector. According to Section 37 of the Employment Act 1955, private sector employees are entitled to no less than 60 consecutive days of maternity leave. Though, those working in the public/government sector have extra perks, and are given 90 days of leave. While there have previously been numerous attempts to introduce paternity leave in Malaysia, this proposal has faced criticism — mostly from employers. The Malaysian Employers Federation (MEF) are concerned that implementing this law may incur higher costs and affect the productivity of the company if they were required to give paid leave for new fathers. Another one of the challenges was that male employees may actually be afraid to even take paternity leave (even if it was required) out of fear that their yearly performance review and any chance of increment or bonus may be affected. There’s also the element of traditional views on gender stereotypes, but that’s a whole other argument on it’s own. We talked to WAO Executive Director, Sumitra Visvanathan and her thoughts on this concern was that: “Let’s view productivity as work that comes out of satisfaction and happiness. Give him (the father) his 7 days, let him sort his family out, let him bond with his baby and he’ll come back to work as a happy man. And a happy man is a productive man.” So this means that, unless the laws are changed, new fathers in the private sector can only get “paternity leave” by applying for annual leave or unpaid leave. While companies cannot stop employees from taking annual leave, an employer can still reject an employee’s annual leave application if they feel that insufficient notice was given. That’s why there’s also emergency leave if your baby decides to come early and your employer shouldn’t be denying you an emergency leave for that reason. Don’t worry – Malaysian fathers may get paternity leave soon! Recently, the Women’s Aid Organisation (WAO) handed over a petition calling for 7 days of paternity leave to be implemented in Malaysia. They handed over this petition to the Minister of Human Resources, YB M. Kulasegaran and the Deputy Minister of Women, Family and Community Development, YB Hannah Yeoh, at the entrance of Parliament. The Minister of Human Resources and MP for Ipoh Barat, YB M. Kulasegaran, who was also present at the petition handover, stated that: “I think it’s very important because you need time to connect with your family (after the child’s birth) and it’s not going to be easy. So the length of time will definitely help and also bring about a stronger bond between the child and the father and also the mother who needs the father’s assistance at the material time.” Besides that, it could even prove to have a better work-life balance for fathers. When it comes to work-life balance statistics, Malaysia isn’t really at the top of the list. In fact, we’re at the bottom. According to a recent work-life balance index published by a technology company called Kisi, Kuala Lumpur was ranked the lowest among 40 other cities around the world when it comes to work-life balance. By providing paternity leave in addition to a male employee’s annual leave, this would increase their productivity and will to contribute even more to the company’s growth. And indirectly increasing their work-life balance as well. There have been opinions where it may also bridge the gender pay gap in Malaysia. This is because, as companies start to recognize the need for new fathers to be there for their child, this would facilitate mothers getting back to work quicker. This indirectly would have the effect of mothers spending less time out of work when both parents are given the opportunity to deal with their new roles and thus, bridging that pay gap. So while this idea has been introduced, it may take awhile before paternity leave in Malaysia becomes an actual thing; as YB Kula had stated that he would first have to raise this issue in cabinet. This means that the issue can only be debated during the current Parliament session or, if not, the next session in March"
"Do you need a medical license to call yourself a “doctor” in Malaysia? Everyone knows that the people you see when you get sick are called “doctors”. Sure, we call people with Phds “doctors” as well, but we don’t go to them to get treated. But we’re not concerned with PhDs. What we’re looking for is the distinction on what it takes to be a Dr (MD), the one that practices medicine and gives you MCs when you’re sick. However, since we’re Asians, it’s ingrained in us to look for alternatives such as traditional medicine specialist for herbal remedies and traditional treatments. Some of us might even trust them more than a regular doctor. So the question is: Is it legal for traditional medical practitioners to call themselves “doctors”? What you need to know is that both experts in modern medicine and traditional medicine have to be legally registered to practice, although they are allowed to use different titles under law. Only doctors qualified to practice modern medicine can be called “doctors” A person who calls themselves “doctor” must be qualified and duly registered under the Medical Act 1971 with qualifications recognized by the Malaysian Medical Council. There’s even a list of the exact medical degrees from universities all over the world that Malaysia recognizes, but even unlisted degrees can be approved separately by the Council. Under Section 33 of the Medical Act, it is illegal for anyone who is not registered as a doctor to: Pretend to be registered or qualified to practice medicine or surgery Take any title or name (like “doctor”), or do anything that misleads others to think that they are a qualified doctor Actually practice medicine or surgery Use the word “clinic”, “dispensary”, or “hospital” to describe where they work Use a symbol that’s designated for registered doctors to use only The penalty for doing so is a fine of up to RM2,000 for first offences, and up to RM5,000 and/or up to 2 years of jail for repeat offences. If the offence continues over a period of time, there’s an additional RM50 per day fine on top of that. [READ MORE - If your doctor has no license in Malaysia, here's what you can do] How do you tell if your doctor is really a doctor? Short of contacting the Malaysian Medical Council and checking with their registry, how do you tell if your doctor is legit? Doctors are referred to generally as “medical practitioners” in the law, and are required by Rule 33 of the Medical Regulations 2017 to state their practitioner registration number on all prescriptions, documents, and records relating to their practice. Failing to do so can result in disciplinary action from the Council. Other than checking on the documents mentioned, looking out for their framed up medical degree is another way to “check” since a recognized degree is one of the requirements for doctors to get their license. You might be wondering at point why we haven’t mentioned incidences of fake dentists like the case of Nur Farahanis, that’s because they’re not “doctors” and are regulated by a different law - the Dental Act 2018, which was drafted exactly because of these incidences of fake dentists. That covers modern medical doctors, but traditional medicine practitioners have to be registered as well. Traditional medicine practitioners cannot call themselves “doctor” Traditional medicine practitioners are recognized medical providers in Malaysia despite the existence of modern medicine. As stated in Section 34 of the Medical Act, these are those who practise: “...systems of therapeutics according to purely Malay, Chinese, Indian or other native methods...” Fun fact - One special exception that traditional practitioners are not allowed to treat is diseases of the human eye, which is stated in Section 34(2) - only certified “doctors” are allowed to. Don’t worry though, your spectacle shops are not doing anything illegal as testing your eyes and providing spectacles are exempted from this. But… Traditional practitioners can only go by the name of “practitioner” and cannot use “doctor” as their title. They need to be properly registered under the Traditional and Complementary Medicine Act 2016 in a recognized area of practice (to avoid abuse by people who invent their “own style”). Practicing in a non-recognized area carries a penalty of up to RM30,000 and/or up to 2 years of prison for first offences, and up to RM50,000 and/or up to 3 years of prison for repeat offences. Be wary of quack doctors who promise miracle cures This is where some quack doctors have gone around claiming strange concoctions and possibly illegal supplements will cure diseases of all sorts, like this tragic incident of a woman whose death might have been quickened by the quack doctor’s “treatments”. She had been offered chlorophyll water and bottles of supplements with labels that were either blacked out with marker pen or homemade, eventually leading to her death. [READ MORE - How do I know if medicine and cosmetics in Malaysia are safe to use?] All medical and cosmetic products in Malaysia must be registered with the Ministry of Health, which come with a Meditag hologram (the Ministry of Health has an app to help you check them). You can also search the list of registered medical products here to see if what you’re being offered is legit. There are a lot of drugs out there which hide under the name of “traditional” and “herbal” medicine by mixing real traditional and herbal medicine with illegal drugs - so it pays to be careful when dealing with any product out there. It’s a lot safer to get your medicine from legal healthcare providers (your reputable doctors, traditional practitioners, and pharmacists), as they are legally obligated to make sure they don’t stock illegal medicine, which could end up harming you. [READ MORE - Here’s why Malaysian pharmacies might refuse to sell you certain medicines"
"Rupa kondo nampak lain dari unit pameran. Boleh ke kita saman pemaju?  [Click here for English version] Korang masih ingat lagi tak satu video viral pasal seorang uncle ni tak puas hati dengan kondominium yang dia baru beli di kawasan KLCC? Punyalah marah uncle tu sampaikan dia sembur rumah tu dengan cat dan pecahkan jubin rumah. Semuanya kerana kualiti unit kondo yang dia beli tu, jauh sangat dari apa yang dijanjikan. Dan untuk kisah kali ni, masalah yang agak sama juga berlaku. Tapi, mereka taklah sembur cat atau pecahkan jubin, sebaliknya membawanya ke muka pengadilan. Kalau korang pernah pergi ke ekspo hartanah, korang mesti akan nampak macam-macam benda yang dijanjikan, dan kalau tengok brosur yang diberi, semuanya nampak cantik dan eksklusif macam ni: Disebabkan korang rasa kagum sangat, korang pun pergilah ke unit pameran dan tengok ciri-ciri rumah yang dijanjikan tu. Lepas tu, korang pun tandatangan Perjanjian Jual Beli (SPA), buat pinjaman dan lepas 4 tahun dapatlah korang duduk rumah idaman. Tapi lepas je 4 tahun, korang cuma dapat yang macam ni: Sebenarnya, inilah pengalaman sebenar yang dihadapi oleh dua orang yang kitorang temu bual – Michael dan Angela. Micheal beritahu, pada mulanya dia suka dengan ‘taman tergantung’ yang ditunjukkan dalam brosur, dan lepas tu dia pun beli unit di tingkat yang sepatutnya taman tu ada. Dengan rasa sedih dia beritahu, walaupun ‘taman tergantung’ tu masih ada – tapi orang mula gunakannya jadi tempat sidai baju. Sekarang ni, kalau korang berada di tempat Michael dan Angela – sama ada terlibat dalam membeli hartanah atau apa-apa dari Lazada sekalipun, korang mesti akan rasa tertipu sangat. Hal ni juga timbulkan persoalan, boleh ke kita saman pemaju yang buat kondo tu? Anda boleh saman, tapi ia sukar Sebelum tu, kitorang nak beritahu dulu yang nama Michael dan Angela ni bukan nama sebenar. Tuntutan mahkamah tu juga masih lagi berjalan, dan mendedahkan sebarang butiran sebenar mungkin akan menjejaskan kes mereka; dan kerana itu jugalah pihak pemaju tak dinamakan. Tapi menurut peguam Michael dan Angela, ada dua tuntutan yang mereka boleh buat terhadap pemaju kondo berkenaan, iaitu: 1. Melanggar Perjanjian Jual Beli Bila Michael dan Angela beli unit individu, mereka dijanjikan dengan beberapa perkara, seperti – setiap unit kondo akan ada 4 tingkap dan lantai porselin. Ini dinyatakan dalam Perjanjian Jual Beli (SPA) antara pembeli dan pemaju. [BACA LAGI: Have you ever bought a house in Malaysia and had no idea what you signed?] Bagaimanapun, apa yang Michael dan Angela dapat taklah seperti mana yang dinyatakan dalam SPA. Unit kondo mereka cuma ada 3 tingkap, jubin porselin bukannya jubin homogeneous – dan lebih dari tu, mereka dijanjikan taman tergantung yang diinspirasikan dari Marina Bay. Tapi, akhirnya cuma dapat kawasan merokok yang pokok di situ ditanam dalam pasu. Jadinya, Michael dan Angela pun saman pemaju sebab mereka dah melanggar kontrak perjanjian. 2. Memperdaya pembeli dengan brosur kondo eksklusif Dalam brosur pemaju, taman tergantung tu ditunjukkan sebagai sebahagian dari kemudahan kondo. Dan disebabkan apa yang ditunjukkan itu jugalah yang membuatkan Michael membeli unit kondo. Di bawah Seksyen 18, Akta Kontrak, salah nyata (misrepresentation) pada dasarnya adalah apabila seseorang memberitahu korang kenyataan yang tak benar, dan kenyataan tu membuatkan korang memasuki kontrak. Memandangkan Michael kagum sangat dengan taman-taman tergantung yang diiklankan dalam brosur, dia pun beli satu unit di tingkat yang sama dengan taman tergantung. Tapi bila kondo tu dah siap dibina, dan dia dapat tahu yang taman tergantung tak sama seperti mana yang dijanjikan – maka tindakan undang-undang diambil atas dakwaan salah nyata. [BACA LAGI: What can you do if you get cheated shopping online in Malaysia?] Seperti mana yang kami beritahu awal tadi, menyaman pemaju kerana melanggar SPA atau salah nyata sebenarnya bukan perkara mudah – lebih-lebih lagi kalau cuma dua orang je yang saman. Dan sebab itulah, Michael dan Angela buat keputusan untuk… Mereka dan 152 orang lain ambil tindakan saman pemaju Michael dan Angela pada mulanya kemukakan isu ni ke Badan Pengerusan Bersama (JMB) kondo. Tapi, lepas tu mereka sedar yang masalah pokoknya disebabkan oleh pemaju kondo. Bagaimanapun, menyaman pemaju bukanlah benda yang mudah. Itulah bila mana Michael dan Angela buat keputusan untuk cari pemilik unit-unit lain yang kongsi masalah sama dengan mereka. Mereka kemudiannya ambil tindakan undang-undang yang dikenali sebagai “class action suit”. Dengan cara ni, mereka buat keputusan untuk saman pemaju secara bersama dengan jiran-jiran atas perkara yang tak sepatutnya mereka dapat. Berdasarkan Perintah 15 Kaedah 12 Kaedah-Kaedah Mahkamah 2012, “class action suit” ni adalah: Pada mana-mana peringkat prosiding di bawah kaedah ini, Mahkamah boleh, atas permohonan plaintif… melantik salah seorang atau lebih defendan atau orang lain sebagai mewakili mereka yang defendan itu dibawa guaman untuk mewakili semua, atau semua kecuali seorang atau lebih, daripada orang itu dalam prosiding… pada menjalankan kuasa yang diberikan... Class action suit ni pada asasnya berlaku bila sekumpulan orang menyaman individu/syarikat secara bersama atas perkara tertentu. Kelebihan cara ni adalah, kos tuntutan akan dibahagikan secara bersama dan itu akan membuatkannya lebih murah, tapi dalam masa sama – lebih berkesan dengan bilangan orang yang lebih ramai. Bagaimanapun, menarik orang supaya menyaman syarikat pemaju besar ni bukanlah mudah. Ada masa tu, penduduk kondo sekitar 700 orang dan Michael terpaksa pergi dari rumah ke rumah untuk bagi risalah dan penerangan kepada mereka. Nasib baiklah, usaha mereka membuahkan hasil, bila enam bulan kemudian, mereka berjaya yakinkan 152 orang jiran untuk sama-sama kemukakan saman tu, dan kumpul RM7,000 dari setiap pemilik kondo untuk tampung yuran guaman. Mereka memfailkan kes terhadap pemaju untuk buat tuntutan kewangan. Pemaju kemudiannya cuba selesaikan pertikaian ni di luar mahkamah, bila mereka tawarkan RM6,000 kepada setiap penduduk untuk tarik balik saman. Hal ni pada mulanya nampak baik, tapi bila juruukur bangunan tentukan nilai semasa unit – tawaran itu dianggap sebagai menipu. Menurut Michael, harga pasaran kondo-nya di bawah RM400,000 selepas setahun, sedangkan dia membelinya dengan harga lebih RM500,000. Jadinya di sini, nampaklah kita yang menyaman pemaju adalah satu cara menuntut keadilan kepada penduduk yang dah diperdaya. Saman pemaju besar memang susah, tapi ia tak mustahil Walaupun tak ambil tawaran dari pihak pemaju, kita masih lagi tak dapat pastikan sama ada penduduk akan menang melawan pemaju ni. Akan tetapi, tindakan mereka ni masih lagi menunjukkan yang orang biasa juga boleh bersama-sama ambil tindakan undang-undang terhadap pemaju besar, kalau mereka rasa mereka dah dikhianati. Michael dan Angela beritahu kami, mereka buat ni bukan untuk diri mereka saja. Mereka berharap, pemilik rumah lain yang hadapi masalah sama juga supaya berani ke depan dan ambil tindakan terhadap pemaju, dengan cara yang betul. Proses menyaman pemaju mungkin nampak suah dan hampir mustahil – tapi class action suit nampaknya boleh membantu meringan beban pembeli rumah. Buat masa sekarang, Michael, Angela dan 152 penduduk lain dah memfailkan kes terhadap pemaju. Perbicaraan pertikaian ini dijangka akan bermula pada Januari 2020 tahun hadapan."
"Boleh ke kita tak bayar saman parkir di Malaysia? [Click here for English version] Kalau korang memang jenis yang selalu memandu, korang mesti pernah kena saman, walaupun sekali. Saman tu boleh jadi sebab parkir tak letak kupon, parkir bertindih, ataupun sebab guna telefon masa memandu. Kalau kena saman dengan majlis tempatan (macam: DBKL, MBPJ, MPSJ dan sebagainya) korang mesti rasa benda tu tak penting sangat. Tapi kalau kena saman dengan polis atau JPJ, cepat-cepat korang bayar saman. Nampaklah di sini kebanyakan rakyat Malaysia anggap saman dari majlis tempatan tu macam tak penting sangat. Tapi betul ke tindakan kita ni? Apa bezanya antara saman-saman ni? Majlis tempatan macam DBKL sebenarnya ada kuasa untuk keluarkan saman berkaitan dengan isu parkir dan kesalahan-kesalahan di bawah Akta Pengangkutan Jalan 1987. Contohnya macam, parkir di tempat yang salah, parkir dalam petak kuning di masa yang salah dan kegagalan memaparkan kupon parkir. Pegawai DBKL ada kuasa untuk kompaun sesiapa yang lakukan kesalahan ni, seperti mana yang diperuntukkan di bawah Seksyen 120 (e) Akta Pengangkutan Jalan 1987. “Seseorang pegawai pihak berkuasa yang berkenaan yang khusus diberi kuasa secara bertulis dengan nama atau jawatan bagi maksud itu oleh Menteri yang dipertanggungkan dengan tanggungjawab bagi kerajaan tempatan boleh mengikut budi bicaranya mengompaunkan apa-apa kesalahan terhadap Akta ini...” Oleh itu, pegawai dari mana-mana majlis tempatan sekalipun ada kuasa untuk saman korang atas sebarang kesalahan di bawah Akta Pengangkutan Jalan, tapi selalunya mereka saman korang disebabkan isu parkir. Manakala, JPJ pula bertanggungjawab untuk saman korang berkaitan dengan isu pendaftaran, lesen memandu dan kelakuan yang memberi kesan kepada pemandu lain. Contohnya seperti – korang tinggalkan kereta tanpa matikan enjin, memandu di laluan bas, atau gunakan font/saiz plat kereta yang salah. Sebenarnya ada empat kategori kesalahan memandu di bawah peraturan JPJ berdasarkan tingkah laku dan kenderaan korang, iaitu: Kategori 1 – Tindakan korang secara langsung menyebabkan kemalagan atau kesesakan jalan raya Kategori 2 – Korang berpontensi menyebabkan kemalangan Kategori 3 – Kenderaan korang ada isu teknikal yang boleh menyebabkan kemalangan, contohnya macam lampu rosak Kategori 4 – Sebarang kesalahan selain di atas, tapi tak menyebabkan kemalangan Untuk PDRM pula, badan keselamatan ni bertanggungjawab menjaga keselamatan masyarakat di atas jalan raya. Merekalah yang membendung sebarang tindakan bahaya macam – menggunakan telefon masa memandu, memandu di laluan kecemasan dan buat pusingan-U di tempat yang dilarang. Mereka juga selalunya keluarkan saman masa buat sekatan jalan raya dan musim trafik tinggi – terutamanya masa musim perayaan seperti Hari Raya. Kitorang sebelum ni ada tulis satu artikel untuk tolong korang kenal jenis saman yang macam mana korang kena dari PDRM. [BACA LAGI: 5 different types of saman that you can get for being a bad driver] Dan berbeza dengan pandangan umum masyarakat, korang sebenarnya tak boleh abaikan je saman dari majlis tempatan ni, sebab… Majlis tempatan sekarang ada hak untuk senarai hitamkan anda Pada tahun 2011, Akta Pengangkutan Jalan 1987 dah dipinda, di mana JPJ bekerjasama dengan majlis-majlis perbandaran seperti DBKL untuk menguatkuasakan pungutan denda. DBKL lepas tu akan rujuk pesalah trafik kepada JPJ untuk diambil tindakan. Jadinya, kalau korang fikir saman tu akan hilang macam tu je bila korang abaikannya, korang kena fikirkan sekali lagi. Sebab sekarang, walaupun korang ada satu saman tak berbayar, nama korang akan tetap ada dalam sistem. Jadinya, senang kata – kena saman dengan DBKL, samalah macam kena saman dengan JPJ. Tapi berita gembiranya adalah, selagi mana korang bayar saman, nama korang dibuang dari senarai. Dan berita buruknya, kalau korang abaikannya dalam masa 45 hari – nama korang akan disenarai hitam. Sebelum ni, kalau korang ada saman tak berbayar, DBKL akan tunda kereta untuk paksa korang bayar. Tapi, keputusan mahkamah terbaru kata – adalah salah untuk sita kereta milik pemandu yang tak membayar saman. Namun sekarang ni, DBKL dah boleh rujuk orang yang tak bayar saman kepada JPJ. Jadinya, korang kenalah bayar saman dekat DBKL untuk elakkan dipanggil ke mahkamah atau disenarai hitam. Selalunya, kalau dah disenarai hitam, korang mungkin tak boleh lagi memandu. Dan lebih serius lagi... Anda boleh dapat banyak lagi saman kalau ada disenarai hitam Masalah korang tak berakhir di situ saja. Sebabnya, bila nama korang dah disenarai hitam, korang tak boleh barukan cukai jalan dan lesen memandu. Tanpa ada dua benda penting ni, korang dah dikira memandu secara haram. Dengan kata lain, korang tak boleh memandu secara sah, selagi mana korang tak bayar saman. Hal ni penting sebab memandu tanpa cukai jalan dan lesen memandu adalah kesalahan trafik yang cukup serius. Kalau korang berani, korang boleh je bawa kereta korang tu, tapi kalau kena tangkap, korang kenalah berdepan dengan akibatnya. Ia pun bergantung dengan pihak mana yang tahan korang: Kalau ditahan oleh JPJ: Korang akan disaman ke mahkamah dan korang hanya boleh bayar saman di sana. Ni maknanya, korang kena lalui pendengaran (dan berpontensi kena ceramah) sebelum bayar saman. Kalau ditahan oleh PDRM: Jika korang ditahan masa sekatan jalan raya dengan cukai jalan yang tamat tempoh, mereka boleh saman korang. Jadinya, berhati-hatilah kalau nama korang disenarai hitam; pihak berkuasa tetap akan ambil tindakan terhadap korang. Korang boleh abaikannya, tapi tak boleh sorok Kalau korang terima saman mahkamah dari majlis tempatan, korang akan diberitahu bila tarikh mahkamah tu nanti. Korang mungkin fikir kalau korang tolak, nafi atau abaikan notis dari mahkamah, korang tak perlu datang ke pendengaran mahkamah. Tapi sebenarnya, sama ada korang terimanya atau tak, ia tak akan ubah tarikh mahkamah. Pendengaran tu akan tetap berjalan, walaupun korang tak ada di situ. Seperti mana dinyatakan di bawah Seksyen 53(1A) Akta Pengangkutan Jalan 1987: Jika orang yang kepadanya disampaikan notis... enggan menerima atau menafikan penerimaan notis itu, notis itu hendaklah dianggap telah disampaikan kepada orang itu pada tarikh penyampaian notis itu. Jadinya, tak kisahlah apa yang korang buat, tarikh pendengaran akan ditetapkan berdasarkan bila majlis tempatan hantar notis. Dan kalau korang tak datang, mahkamah boleh keluarkan waran untuk menahan korang, seperti mana diperuntukkan di bawah Sekseyn 52(2) Akta Pengangkutan Jalan 1987: Jika seseorang… gagal hadir dengan sendiri atau melalui peguam, maka... mahkamah boleh… mengeluarkan suatu waran bagi penangkapan pemunya berdaftar itu melainkan jika dalam hal suatu kesalahan yang boleh dikompaun, pemunya berdaftar itu telah dibenarkan untuk mengkompaun kesalahan itu dalam masa yang dinyatakan dalam notis itu. Dan kalau korang fikir nak tunggu bila ada program diskaun saman, korang kenalah fikirkan semula rancangan tu. Tempoh diskaun biasanya tak konsisten, sebabnya kerajaan tak pernah tetapkan masa tertentu untuk tu, sama ada setiap bulan, setahun sekali ataupun program tertentu. Yang terbaiknya, selesaikanlah saman korang awal-awal, sebabnya kerajaan pun cuma laksanakan denda minimum untuk saman yang tak dibayar. Jadi akhirnya, kalau korang nak berjimat dari simpan berkepuk saman sampai beribu ringgit, mungkin yang terbaik bayarlah saman korang lebih awal."
"Can online petitions actually change Malaysian laws? When we go on social media, you may have seen some online petitions. Some may be useful, though some are questionable at best. But have you ever wondered whether those online petitions actually work? Surprisingly, one online petition might actually become a law. Recently, the Women’s Aid Organisation (WAO) managed to hand over their online petition to the government. Their petition is on introducing 7 days of paternity leave in Malaysia. The petition was received in the right hands, which is YB M. Kula Segaran, Malaysia’s Human Resource Minister, who will propose the petition at parliament. But this isn’t that common, as it’s quite rare for the government to propose a petition in cabinet, even if they might acknowledge that it exists. But still, even if they do accept the petition, it’s still not a lock on that it will become a law. How does a petition become law? Before a petition becomes law, there are a still few steps that need to happen. First, they need to make a bill. A bill is basically the proposal to introduce a new law or make changes to an existing one, which is based on the petition. The bill provides the general structure and idea of how a law will look like – pretty much a first draft. And this bill will then go through these (extremely simplified) steps below before officially becoming a law. Dewan Rakyat – The bill will reach Dewan Rakyat for reading and debate which has three readings in total. They’re basically discussing whether they should implement this law or not. If they agree, it will then move forward to the next stage. Dewan Negara (Senate) – If the bill manages to reach here, they can’t reject it; they can only suggest changes to the bill. Yang Di-Pertuan Agong – And if all goes well, the Yang Di-Pertuan Agong must give his approval for the bill to become law in Malaysia. Announcement – Once the Agong approves, Parliament just has to announce that they have created this new law. But even if it never reaches the doors of parliament, petitions aren’t necessarily useless by themselves. [READ MORE: Why does Malaysia take so long to create or change laws? ] Even if it doesn’t become a law, it can still make a change. Currently, Malaysia does not have any official law or system to recognise public petitions in general. But, if a petition can get enough media attention, the policymakers might actually respond to it. A few of those include Tun Mahathir agreeing to relinquish the Education portfolio and Pakatan agreeing not to accept the membership of party-hoppers. According to political scientist Dr Wong Chin Huat, : “The online petition has risen up as it is a low-cost and easy-to-organize way to fight for a cause.” – Dr Wong Chin Huat, taken from the Star online. Now that everyone has a smartphone, information can spread rapidly through the internet. This would allow people to make their comments and opinions known easily online. “The mushroom of the online petition is a good thing, as people are taking ownership.” – Dr Wong. But even for policymakers, it can be difficult to change a law or even introduce new one, much less for ordinary citizens. Which is why some might see petitions as a way to express their opinions, hoping that it could reach the government. For some petitions, the goal might be to impact public policy and change the laws itself. But other petitions might just want to raise awareness or get extensive media coverage on their selected issue. But not all petitions are created equal Numbers aren’t everything though, because even if you have a lot of signatures on your petition, it doesn’t mean you will be heard. In 2018, fresh from leading Pakatan Harapan to victory in the elections, there was a petition nominating Dr Mahathir for the Nobel Peace Prize. The petition collected over 150,000 signatures, but nothing really came out of it (we’ll update accordingly when he wins). However, WAO’s petition for paternity leave only had about 40,000 signatures but managed to get proposed in Cabinet. So, in this case the number of signatures is not the ultimate barometer of success. According to Sumitra Visvanathan, WAO’s executive director, it takes more than numbers to get the government to recognise it. “We have the recognition and connections, we can’t do it on our own.” – Sumitra Visvanathan, Women’s Aid Organisation, speaking in an interview with Asklegal. But that doesn’t mean they have low support from the public. Two of their previous petitions, #WhenIwas11, which was a campaign against child marriage, and Hentikan Rogol Kanak-kanak (stop the state-sanctioned rape of children in Malaysia) both have collected over 150,000 of signatures. Both Sumitra and her organisation have the right knowledge and connection from years of experience. They are also recognised as an influential organisation due to their track record. This clout that they have allowed them to create other petitions that have received large public support. But that doesn’t mean that numbers don’t mean anything, because having some sort of traction is important for the government to pay attention to it. Notice me YB-kun Because for a petition to work, first you’ll need to get people to sign it. “It is a numbers game. The more people are involved, the more likely it is taken seriously. “ – Dr Wong Chin Huat, taken from the Star online. But while the number of people supporting the petition is vital, the person who created the petition and the subject matter is equally important too. So if you want your petition to be effective, use an organisation’s network to help on your cause. That way, you can have a bigger reach for more people to sign your petition as well. But if what you’re really going for is change, sometimes you don’t even need a petition. “You don’t always need a petition, you can do it even in your own company.” – Sumitra Visvanathan. You can fight for a good cause at your own capacity, such as paternity leave, by raising your concerns to top management. Get together with your other colleagues and tell your C-level that you guys would like to see policy reform. If there are more people raising the same concern, your company will be forced to address the concern. So, a petition is about the numbers, but with an organisation behind you, it would be more impactful. You can always start where you are but if you feel like you can’t do it alone, you can always support petitions created by different organisations, attend their event and sign the petition. Even they can’t do it on their own."
"Kalau mekanik baiki lebih dari sepatutnya dan tak beritahu kita, patut ke kita bayar? [Click here for English version] Katakanlah yang masa nak servis kereta korang dah sampai. Korang pun pergi ke bengkel, dan kata apa yang patut kepada mekanik di situ, sebelum pergi buat benda lain – sementara kereta korang diservis. Tapi tak lama lepas tu, korang dapat call dari bengkel yang kata ada masalah lain dengan kereta korang. Mereka kata korang kena bayar lagi RM500 sebab tambah bahagian yang kena diganti dan upah kerja. Korang pula duit dah tak berapa ada tengah bulan ni. Jadinya, korang pun beritahu tak payahlah baiki yang tambahan tu dan buat je apa yang diberitahu awal tadi. Semuanya nampak macam okey, sampailah korang nak ambil kereta korang balik… Masa inilah korang dapat tahu yang mekanik tu tak buat seperti mana yang korang minta dan dah buat pembaikkan tambahan tu. Korang pun rasa marah bila tengok bil sebab kena bayar lebih dari yang sepatutnya. Mereka pula tak nak bagi kunci kereta, selagi korang tak bayar. Sebenarnya, kes macam ni bukanlah baru, tapi dah biasa jadi di Malaysia ni. Menurut Tribunal Tuntutan Pengguna Malaysia (TTPM), pada tahun 2016 je, 85 kes penipuan oleh bengkel kereta dah direkodkan dengan jumlah sebanyak RM446,262.28. Malah, terdapat juga kes di mana ada penunggang motosikal yang dah dipalsukan tandatangannya oleh mekanik sebab nak tuntut lebih banyak pampasan alat ganti dari agensi insurans. Dan hal ini kemudiannya membawa kita kepada point… Bengkel dah buat salah dengan kes macam tu Untuk lebih tepat lagi, bengkel tu dah melanggar Seksyen 9(b), Akta Perlindungan Pengguna 1999 yang menyatakan: “Tiada seorang pun boleh melibatkan diri dalam perlakuan yang – mengelirukan atau memperdayakan… (kepada) orang ramai mengenai sifat,… atau kuantiti, perkhidmatan itu.” Dengan tak memberitahu korang (atau minta kebenaran korang) untuk tukar mana-mana bahagian dalam kereta – bengkel tu secara asasnya dah memaksa korang membayar bahagian dan upah yang sepenuhnya tak wajar. Mereka juga dah melanggar seksyen lain dalam akta sama iaitu – Seksyen 12(1)(b) yang menyatakan: “Seseorang adalah melakukan suatu kesalahan – jika sesuatu gambaran yang diberikan olehnya kepada seseorang pengguna mengenai harga yang padanya apa-apa barang atau perkhidmatan boleh didapati menjadi mengelirukan dan dia tidak mengambil langkah yang munasabah untuk menghalang pengguna itu daripada bergantung pada gambaran itu.” Tapi kalau ikutkan dari awal tadi, korang ada masalah lain – sebab pihak bengkel yang pegang kunci kereta, tak nak bagi balik selagi korang tak bayar. Jadi, apa yang korang patut buat? Sebelum korang panggil peguam dan ancam nak saman mereka, korang kena ingat – yang tindakan korang tu mungkin akan buatkan korang guna lebih banyak lagi duit dan masa dari sepatutnya. Kami taklah pakar sangat pasal kereta, tapi apa yang kitorang tahu – biasanya bil baiki ni taklah sampai lebih RM25,000 kan? Jadinya, ini antara pilihan yang korang boleh buat: Pilihan satu: Panggil polis Dengam buat macam ni, korang mungkin akan buat bengkel tu rasa cuak dan isu tu dapat selesai cepat sikit. Tapi tindakan ni pun tak berapa digalakkan sebab polis tak boleh tangani kes macam ni secara komprehensif sebab ia lebih kepada hal kontrak antara korang dan bengkel, melainkan kalau ia melibatkan jenayah. Pilihan kedua: Bayar mereka Bayar seperti mana yang mereka minta, dapatkan resit dan pergi ke Tribunal Tuntutan Pengguna (TTPM). Tapi dengan cara macam ni, ada kemungkinan mahkamah akan menyebelahi bengkel. Sebabnya, tindakan membayar tu boleh dianggap sebagai persetujuan – di mana menerima tanpa protes. Tapi, sebenarnya ada satu lagi pilihan yang korang boleh buat, iaitu… Tinggalkan kereta anda di bengkel dan buat tuntutan di TTPM Kalau korang tak pasti apa yang TTPM ni buat, korang boleh baca artikel yang kami tulis ni, tentang apa yang tribunal ni buat dan macam mana ia menolong orang yang buat tuntutan dari peniaga tidak bertanggungjawab. TTPM ni sebenarnya adalah sebuah badan bebas yang ditubuhkan di bawah Akta Perlindungan Pengguna 1999, untuk mendengar dan menentukan tuntutan yang difailkan oleh pengguna. Senang kata, ia mahkamah untuk pengguna. Jadi macam mana nak buat tuntutan ni? Mula-mula korang kena isi dulu Borang 1 yang boleh didapati secara percuma dari pejabat/cawangan TTPM atau secara muat turun di sini. Yuran RM5 kemudiannya akan dikenakan masa korang memfailkan tuntutan. Bila mereka dah proses permohonan tu, Borang 1 “kemudiannya akan disampaikan kepada peniaga.” Maknanya, seseorang akan hantar dokumen ni kepada mereka, untuk maklumkan tentang aduan korang. Lepas tu, tarikh perbicaraan akan ditetapkan oleh Tribunal. Masa inilah, bengkel akan buat keputusan sama ada nak selesaikan kes tu secara peribadi dengan korang atau tak. Kalau tak, mereka kena isi Borang 2 dan berikannya kepada korang untuk ke peringkat seterusnya: di mahkamah. Perbicaraan tu nanti tak ada peguam dan Tribunal akan dengar hujah kedua-dua pihak. Lepas berbicaraan selesai, tuntutan masih boleh diselesaikan secara baik antara dua pihak. Kalau mahkamah menyebelahi korang, korang akan dapat amaun tuntutan yang dilihat sesuai. Bagaimanapun, ada juga tuntutan yang ditolak, jadi janganlah fikir yang korang boleh dapat tuntutan korang tu 100%. Tapi, kalau tuntutan tu menyebelahi korang dan bengkel masih TAK NAK ikut, ia dah menjadi kesalahan jenayah – dan topiknya pun dah berubah. Untuk lebih selamat, selalulah minta sebut harga dulu Kadang-kadang, kita tak dapat tentukan bengkel mana yang kita nak pergi. Lebih-lebih lagi, kalau kereta kita rosak tengah jalan dan di luar kawasan kita. Jadinya, kita pun pergilah ke bengkel terdekat. Kalau mereka tu orang amanah, semua jadi baik je la. Tapi kalau tak, masalah yang menanti kita. Jadinya, sentiasalah minta sebut harga dulu dan bertegaslah tentang apa yang korang nak mereka buat. Tapi, selalunya bengkel pun tak dapat bagi sebut harga yang tepat, selagi mereka belum periksa kerosakan yang ada. Makanya, jadilah pengguna yang bijak, dan kalau perlu berunding – berbincanglah baik-baik dengan mereka. Siapa tahu dengan cara tu ia lebih memudahkan dan korang pun mungkin dapat diskaun nanti kan?"
"Macam mana 'body shaming' boleh buatkan anda dipenjara sampai setahun? Sekarang ni, boleh kata semua orang ada akaun media sosial, dan dari platform ini jugalah kita boleh berborak, sebarkan maklumat, luahkan perasaan, membawang dan sebagainya. Tapi, masalah juga timbul bila ada sesetengah pihak yang gunakan platform ni untuk memalukan orang lain, mengejek, menyebar fitnah, gangguan seksual, troll, body shaming dan sebagainya. Dengan kata lain, tindakan tak bermoral sebegini dinamakan sebagai BULI SIBER. Kalau korang ikuti perkembangan, mesti korang ada terbaca atau tonton satu rancangan TV baru-baru ni yang membincangkan isu buli siber. Rancangan tu menjemput tiga orang tetamu yang pernah jadi mangsa body shaming. Apa yang mengejutkan, Azfar iaitu salah seorang dari tetamu di situ mendedahkan – dia sendiri pernah jadi mangsa buli siber oleh seorang lagi tetamu dalam rancangan sama. Keadaan agak tegang jugalah bila dia cakap macam tu, sebelum dikawal semula oleh pengacara. Dari apa yang kita dapat tahu ni, nampaklah kita yang siapa saja boleh menjadi mangsa buli siber atau secara tak sedar menjadi pembuli siber. Hal ini jugalah yang berlaku kepada seorang remaja perempuan 16 tahun pada Mei lalu, yang dipercayai membunuh diri, selepas rakan-rakan media sosialnya mengundi supaya mendiang membunuh diri. [BACA LAGI: Encouraging someone to commit suicide is a crime in Malaysia....even by Instagram poll] Lebih mengejutkan, laporan Compritech pada tahun lepas (2018) meletakkan Malaysia di kedudukan ke-6 dalam kalangan 28 buah negara yang berdepan dengan buli siber. Kedudukan itu dah buatkan Malaysia di tempat ke-2 paling buruk di Asia, lebih baik berbanding India, tapi lebih buruk dari Arab Saudi, China, Korea Selatan dan Jepun. Dan bila bercakap soal buli siber ni, sebenarnya Malaysia tak ada undang-undang khusus tentangnya dan keadaan ini juga agak menyukarkan untuk kita mentakrifkan apa itu buli siber di sisi undang-undang. Bagaimanapun, itu tak bermakna yang pembuli siber ni boleh terlepas macam tu je, sebab masih ada peruntukan undang-undang yang boleh dikenakan terhadap mereka yang terlibat. Tapi, sebelum kita bincang lebih lanjut, kita kena tahu dulu yang... Si pembuli siber boleh jadi adalah rakan baik kita sendiri Apa yang membuatkan buli siber ni lain dengan buli fizikal adalah – mangsa buli selalunya tak tahu siapa yang membuli mereka itu. Sebabnya, pembuli selalunya bersembunyi di sebalik nama pengguna (username) dan kerana itu juga mereka berani nak menghina atau mengejek orang lain. Akan tetapi, kajian juga dapati yang buli siber lebih cenderung berlaku dalam kalangan rakan-rakan berbanding orang yang tak dikenali. Maknanya, ‘rakan’ tu boleh jadi – rakan baik, rakan sekelas, rakan sekuliah ataupun rakan sepejabat. Disebabkan penggunaan media sosial secara majoritinya dikuasai oleh orang muda, maka tak hairanlah bila mereka berada dalam golongan yang paling terdedah dengan buli siber. Contohnya, satu kajian pada 2017 mendedahkan – 66% daripada 712 orang pelajar di Universiti Tun Hussein Onn Malaysia (UTHM) yang ditinjau pernah menjadi mangsa buli siber. Dalam tinjauan lain oleh Tabung Kanak-Kanak Pertubuhan Bangsa-Bangsa Bersatu (UNICEF) pula dapati – 28 peratus atau tiga daripada 10 orang anak muda di Malaysia menjadi mangsa keganasan dalam talian, dengan 43 peratus daripadanya diterima melalui aplikasi pesanan peribadi di Facebook dan Instagram. Manakala, dari 5,000 orang yang ditinjau – 9 peratus (atau 457 orang) mengaku pernah menggunakan platform digital untuk mengganggu atau membuli orang lain. Antara bentuk tindakan yang boleh dianggap sebagai buli siber adalah: Mesej yang mengganggu dan mengancam (seperti mengejek, menghina dan memeras ugut) Memanjangkan/menyebarkan e-mel, foto atau video kepada orang lain Menanam kebencian terhadap orang lain meng­gunakan maklumat yang tak benar dan menghantarnya dalam talian Sexting (tindakan menghantar gambar, mesej atau video berunsurkan seksual) Memulaukan individu tertentu daripada sesuatu kumpulan internet dengan sengaja Troll sama ada dalam bentuk imej, ayat, video atau sebagainya yang mengandungi unsur menghina, memperlekeh atau mengejek seseorang. Akibatnya, mangsa buli siber akan menghadapi gangguan emosi, rasa rendah diri dan berisiko menghadapi masalah mental yang serius seperti kemurungan dan keinginan membunuh diri. Seperti mana yang dikatakan di awal tadi, Malaysia tak ada undang-undang khusus untuk buli siber. Jadi, apa undang-undang sedia ada yang boleh digunakan untuk menangani masalah ni? Ada undang-undang yang boleh buatkan pembuli siber dipenjara Disebabkan buli siber ni berkait rapat dengan isu komunikasi dan multimedia, maka antara akta terawal yang akan kita tengok mestilah Akta Komunikasi dan Multimedia 1998. Apa yang menarik, Seksyen 233(1) dalam akta ini ada sebut pasal kesalahan penyalahgunaan internet yang menyatakan: Seseorang yang – (a) dengan menggunakan mana-mana kemudahan rangkaian atau perkhidmatan rangkaian atau perkhidmatan aplikasi secara sedar – (i) membuat, mewujudkan atau meminta-minta; dan (ii) memulakan penghantaran, apa-apa komen, permintaan, cadangan atau komunikasi lain yang lucah, sumbang, palsu, mengancam atau jelik sifatnya dengan niat untuk menyakitkan hati, menganiayai, mengugut atau mengganggu orang lain; atau (b) memulakan suatu komunikasi dengan menggunakan mana-mana perkhidmatan aplikasi… dengan niat untuk menyakitkan hati, menganiayai, mengugut atau mengganggu mana-mana orang… melakukan suatu kesalahan. Jika disabit kesalahan di bawah seksyen ini, pesalah boleh dihukum di bawah Seksyen 233(3) akta sama iaitu boleh didenda tak lebih RM50,000 atau dipenjara tak lebih setahun atau kedua-duanya, dan juga boleh didenda selanjutnya RM1,000 bagi setiap hari kesalahan itu diteruskan selepas pensabitan. Kalau seseorang pembuli siber itu memfitnah pula, dia juga boleh didakwa di bawah Seksyen 499, Kanun Keseksaan kerana memfitnah orang lain (tiada terjemahan rasmi, diterjemahkan oleh Asklegal): Barang siapa, dengan kata-kata yang diucapkan atau dimaksudkan untuk dibaca atau dengan tanda-tanda, atau oleh representasi yang terlihat, membuat atau menerbitkan apa-apa perihal mengenai seseorang, yang bermaksud untuk membahayakan, atau mengetahui atau mempunyai sebab untuk mempercayai bahawa imput tersebut akan merosakkan reputasi dan juga boleh dikenakan denda orang itu, dikatakan, kecuali dalam kes yang kemudiannya dikecualikan, memfitnah orang itu Jika sabit kesalahan, pesalah boleh dipenjara sehingga 2 tahun atau denda atau kedua-duanya sekali. Disebabkan nilai denda tak dinyatakan, maka secara teorinya nilai itu adalah tak terhad dan bergantung kepada mahkamah. Selain tu, pembuli siber juga boleh didakwa di bawah Seksyen 503, akta sama kerana mengugut: Barang siapa mengugut hendak mendatangkan kepada seseorang apa-apa bencana kepada tubuh, nama baik atau harta orang itu, atau kepada tubuh atau nama baik seseorang yang orang itu ada kepentingan, dengan niat hendak menyebabkan orang itu melakukan apa-apa perbuatan yang dia tidak terpaksa di sisi undang-undang melakukan... adalah melakukan kesalahan secara jenayah. Jika sabit kesalahan, pesalah boleh dipanjara sehingga 2 tahun atau denda atau kedua-duanya sekali. Bagaimanapun, pada akhir tahun 2018 lalu, Kementerian Komunikasi dan Multimedia ada mencadangkan supaya Kanun Keseksaan dipinda bagi menangani kes buli siber. Tetapi dalam masa sama, Suruhanjaya Komunikasi dan Multimedia Malaysia (SKMM) akan bekerjasama dengan Polis Diraja Malaysia (PDRM) bagi melihat sama ada undang-undang sedia ada sudah mencukupi untuk menangani masalah buli siber. Jika tidak, pihak kementerian mungkin akan meminda undang-undang seperti mana yang dicadangkan sebelumnya. Lindungi diri anda dari buli siber Jika korang adalah mangsa buli siber atau korang tahu sesiapa yang menghadapinya, ambillah langkah-langkah keselamatan untuk menanganinya. Antara langkah yang korang boleh buat adalah seperti: Simpan bukti – ia boleh dalam bentuk teks mesej, e-mel, tangkapan skrin (screenshot) dan alamat IP mengikut tarikh dan masa. Suarakan masalah – kongsikan masalah ini kepada orang yang dipercayai dan dapat menolong korang menanganinya. Sekat – sekat akaun pembuli, walaupun selepasa mereka membuat akaun baru. Bertukar ke privite – kawal siapa yang dapat melihat post, gambar, dan sebagainya di akuan media sosial korang. Jangan bertindak balas kepada pembuli – abaikan si pembuli lebih, baik dari menimbulkan masalah lain dengannya. Selain itu, korang juga boleh kemukakan aduan kepada SKMM melalui aduan.skmm.gov.my jika berhadapan dengan pembuli siber. Akhirnya, walaupun Perlembagaan Persekutuan menjamin kebebasan bersuara, itu tak bermakna yang kita boleh berkata sesuka hati sehingga menyakiti dan membuli orang lain. Maka, gunalah media sosial dengan tertib dan jadilah pengguna yang bijak. Korang mampu mengubahnya…"
"Can photocopies of documents be used as evidence in Malaysian courts? Most of us would have photocopies of important documents such as certificates, or even receipts and important forms. But because photocopies are exactly that—carbon copies of the original document—we assume that they’re just as good as the original. It’s practically the original, right? But in official situations, it might not be enough. Take the recent acquittal of PKR vice-president Rafizi Ramli as an example. To give some context, Rafizi was sentenced to 30 months of jail in 2018 for leaking bank data from the National Feedlot Corporation (NFC). On appeal, the High Court judge reversed the decision and freed him on the basis that evidence against him were PHOTOCOPIES. According to the judge, the prosecution were legally obligated to use original documents as evidence. They had failed to do so, and couldn’t explain why the original document was unavailable. Hence, the photocopies provided by the prosecution were not accepted by the High Court and subsequently led to Rafizi’s acquittal. You might be puzzled how photocopies lead to him being freed, since the originals and photocopies are almost the same thing right? What matters is its content. However, it’s a different story with the courts. It’s not what’s inside that counts First, you need to know what type of document are you presenting. In court, documents used as evidence are divided into two types: public documents and private documents. Under Section 74 of the Evidence Act 1950, public documents are: (a) documents forming the acts or records of the acts of...(i) sovereign authority...(ii) official bodies and tribunals; and...(iii) public officers... (b) public records kept in Malaysia of private documents. But basically, public documents are usually documents which government officers give you or record for themselves, such as a police report or medical report. Usually, you can get a copy of it for your own personal record. So let’s say, you have a police report that you want to submit as evidence for your road accident claim. Do you send the photocopy or the printout that the police officer gave to you? The answer is neither, as only CERTIFIED TRUE COPIES of police reports are allowed to be used as evidence in court. In fact, if you read the printout of the police report, they were kind enough to give a warning at the bottom of the police report which translates as “This copy cannot be used for claims or trial in court. (Only for PDRM internal use).” Only the public officer holding the said public documents can certify it as a true copy. In the case of police reports, it is the officer in charge of the Police District. As for getting it certified, you should always contact the relevant Government Department for further information. After you have it certified, it should look something like this: So anything that comes from government officials must be verified before it can be accepted. But what about private documents? If it’s not legit, you must acquit On the other hand, a private document is basically anything that isn’t a public document. Under the Evidence Act 1950, it basically covers everything that isn’t mentioned in Section 74. 75. All documents other than those mentioned in section 74 are private. But the rules are nearly the same as private documents. In most situations, the courts are only allowed to accept original documents as evidence. But why the obsession, you may ask? This other court case, which involved an illegal public lottery, can help explain why. In the case of Pendakwa Raya v Chew Chai Xiang [2018], the court had to decide whether to accept photocopies of seized lotteries tickets. Unfortunately, the original tickets were damaged due to an oil spill, which made it illegible. In the end, the court didn’t accept the photocopies for three main reasons: First, by losing the original tickets as the best evidence, witnesses could not confirm whether the photocopy is indeed a true replica of the originals. Second, it led to ""the defence [losing] their fundamental rights to cross examine on exhibit P9A-D (original lotteries ticket)."" In other words, the defence lost their chance to inspect the original lotteries ticket. Thirdly, the oil spill was due to the prosecution's witness negligence. But what if you can check and verify that the original and the copy are the same? Can you use photocopies? The answer is still no, because the court will lose the chance to inspect the original document, and will always insist on getting the originals. This is necessary because now with Photoshop easily available, anyone with a little skill can fake documents easily. But that being said... Photocopies are still allowed (with conditions). Even if the court does prefer original copies, there are still times where photocopies can be used as evidence. The first step is proving that the photocopies are the true replicas of the original documents. This can be done in the form of expert witnesses or other pieces of evidence. In Section 65 of the Evidence Act 1950 there are scenarios where photocopies can be used as evidence.. Where the original document has been lost or destroyed. For example, you lost it in a fire. Where the original documents is not easily movable. For example, the documents are very old and it might fall into pieces if you try to move it from Ipoh to KL. For any other reasons that are not your fault. Assuming you are lucky (or unlucky) enough to be in the above 3 scenarios, the second step is explaining to the court of your situation and convincing it to accept the photostat. If you fail to do so, the courts are not allowed to consider the document at all. Failure to follow through with this might lead to a ground for appeal, which is exactly what happened in Rafizi's case. The prosecution in that case tendered photocopies of documents without explaining why, which is against Section 65 of the Evidence Act 1950. This led to the High Court's decision to acquit Rafizi, and explained that the correct course of action by the prosecution should be ""[calling] a witness to testify that a sufficient search for the original document of P4 was carried out, and offer an explanation as to how the original document was lost or could not be found."" Wait, some of you may ask. There’s one more guy! Isn’t there that one guy who can verify photocopies as well? Specifically... Can the person that chops my SPM documents certify it? The person you were thinking of is likely a Commissioners of Oaths. Aside from certifying your documents to apply for jobs or universities, they are also empowered to certify documents such as statutory declarations (sworn statements). Unfortunately, their powers doesn't extend to verifying photocopies for evidence in court. So the task of deciding whether to accept your photocopy as evidence is ultimately the responsibility of the judge. [READ MORE : What is a Malaysian Commissioner for Oaths and what do they do?] So if the reason that you don’t have the original document is not your fault, you can still use the photocopy. However, it may be difficult to prove that it is a true replica of the original document. Whilst this point may seem trivial, but as we can see from Rafizi’s acquittal, this can be a make or break point for your case."
"Kenapa cop hijau untuk kontrak ini boleh buatkan anda bayar sampai ribuan ringgit? [Click here for English version] Bila korang nak beli atau sewa hartanah, korang mesti perasan yang perjanjian tu sendiri datang dengan beberapa bayaran tambahan. Bayaran tu boleh jadi besar dan kecil, tapi selagi mana urusan tu boleh selesai, korang taklah fikir sangat. Bayar je la apa yang kena dibayar kan? Tapi untuk mereka yang menyewa, tak kisahlah korang tuan tanah atau penyewa, korang mesti perasan cop hijau dalam perjanjian. Nilainya boleh semurah RM10, tapi bergantung pada sewa bulanan korang, ia juga boleh jadi sampai RM1,000. Kenapa cop kecil dalam dokumen ni boleh mahal sangat? Sebenarnya, cop hijau ni memang diperlukan dalam perjanjian hartanah dan ia dipanggil sebagai duti setem. Duti setem ni sebenarnya adalah cukai yang dikenakan ke atas dokumen/suratcara yang ada kesan perundangan, komersial dan kewangan. Ia meliputi perkara-perkara seperti perjanjian sewaan, hak milik tanah dan juga polisi insurans. Senang kata macam bayar cukai pendapatan, tapi ia cukai untuk perjanjian. Lembaga Hasil Dalam Negeri (LHDN) pula adalah badan kerajaan yang kutip duti setem ni. Setem ni akan diberikan selepas korang buat pembayaran sebagai pengesahan. Maknanya, masa korang bayar cukai kepada kerajaan, korang juga sahkan kontrak. Kenapa setem dokumen ni penting sangat? Tujuan setem kontrak ni adalah untuk menyediakan perlindungan kepada orang yang menandatangani perjanjian, kerana dokumen tu nanti boleh diterima di mahkamah kalau berlaku sebarang pertikaian. Contohnya macam ni – tuan rumah nak korang keluar dari rumah lepas dua bulan korang menyewa. Tapi dalam perjanjian, dah dinyatakan yang korang boleh tinggal di rumah tu selama 2 tahun. Korang pun bawa masalah ni ke mahkamah untuk selesaikan pertikaian. Sama ada dokumen korang disetem (dicop) atau tak, akan buatkan keadaan yang cukup berbeza. Kalau disetem, dokumen perjanjian korang boleh digunakan sebagai bahan bukti di mahkamah. Tapi kalau tak disetem, kontrak korang tak boleh dibawa ke mahkamah sebagai bahan bukti. Ini kerana, Seksyen 52(1) Akta Setem 1949 menyatakan (tiada terjemahan rasmi, diterjemah oleh Asklegal): “Tiada suratcara yang dikenakan duti boleh diterima sebagai keterangan... melainkan suratcara itu telah disetemkan.” Jadinya, kalau korang tak setem perjanjian sewaan, korang tak boleh guna dokumen tu sebagai bahan bukti di mahkamah untuk melindungi diri korang. Walaupun begitu, kalau dokumen korang tak disetem, tu tak bermakna yang ia tak sah. Sebabnya, korang masih boleh serahkannya ke mahkamah, tapi dengan syarat kenalah disetemkan dulu, dan bayar sikit penalti sebab tak buat awal-awal. Lepas dah disetem dan urusan bayar penalti selesai, dokumen korang tu dah boleh diterima sebagai bahan bukti. Seksyen 53(1), Akta Setem 1949 menyatakan: “Apabila seseorang menuntut suatu suratcara di bawah seksyen 51 mempunyai undang-undang atau persetujuan pihak berkuasa untuk menerima keterangan dan mengakui suratcara itu sebagai keterangan mengenai pembayaran duti dan penalti, jika ada, dia hendaklah, dengan seberapa segera yang mudah, menghantar surat cara itu, bersama-sama dengan jumlah duti dan penalti, jika ada, yang dibayar berkenaan dengannya, kepada Pemungut ... Jadinya di sini, pihak hakim taklah ketepikan kes korang macam tu je, tapi dia akan sarankan korang supaya bayar duti setem dan penalti kepada LHDN terlebih dulu dan kemudian kembali ke mahkamah untuk teruskan kes korang. Berapa nilai penalti tu? Dalam Seksyen 47, Akta Setem 1949 menyatakan: “Menyimpan mana-mana peruntukan ekspres lain dibuat oleh Akta ini atau mana-mana Akta lain, apa-apa suratcara yang tidak disetem atau tidak mencukupi yang tidak menjadi suatu cek atau nota janji hutang yang dikeluarkan atau dibuat di Malaysia boleh disetem selepas pelaksanaan pembayaran duti tidak dibayar jika suratcara itu dibentangkan untuk disetem dalam masa tiga puluh hari dari pelaksanaannya jika dilaksanakan dalam Malaysia, atau dalam tempoh tiga puluh hari selepas … Ringkasnya, penalti akan dikenakan, kalau korang tak setem perjanjian korang dalam masa 30 hari selepas perjanjian ditandatangani. Penalti itu dinyatakan dalam Seksyen 47A akta sama iaitu: (a) RM25.00 atau 5% daripada duti yang berkurangan, yang mana lebih tinggi, kalau ia disetemkan dalam tempoh 3 bulan selepas masa untuk penyeteman; (b) RM50.00 atau 10% daripada duti yang berkurangan, yang mana lebih tinggi, kalau ia disetemkan selepas tempoh 3 bulan tetapi tidak lewat daripada 6 bulan selepas masa untuk penyeteman; (c) RM100.00 atau 20% daripada duti yang berkurangan, yang mana lebih tinggi, sekiranya ia disetemkan selepas 6 bulan selepas masa untuk penyeteman. Contohnya macam ni – korang tandatangan perjanjian sewaan pada 1 Julai dan 2 bulan lepas tu, korang ada pertikaian dengan tuan rumah pada 5 September. Korang dah lepas tempoh setem 30 hari. Ini bermakna korang jatuh dalam kategori (a), yang membuatkan korang kena bayar duti RM10, ditambah penalti 5% dari yuran asal atau RM25, yang mana lebih tinggi. Jadinya, korang kenalah bayar RM35. Kalau korang masih keliru, jangan risau sangat – bawa je dokumen korang tu ke LHDN, nanti mereka akan tolong korang kira nilai penalti. Semakin panjang masa sewa rumah, semakin tinggi anda kena bayar Kalau korang ada ejen yang uruskan perjanjian sewaan korang, mereka akan tolong korang uruskan hal ni dan tak perlulah korang sendiri kena pergi LHDN. Tapi, kalau korang tak ada ejen dan kena uruskan sendiri secara terus dengan tuan rumah, korang kenalah pergi ke pejabat LHDN sendiri. Bergantung pada berapa lama korang akan sewa rumah dan berapa bayaran bulanannya, nilai duti setem itu nanti akan berbeza. Contohnya, kalau korang sewa kondominium mewah dengan sewa bulanan RM10,000 untuk 2 tahun sewaan dalam perjanjian, nilai duti setemnya mungkin mencecah RM1,000. Tapi, korang tak perlulah kiranya sendiri, sebab kiraannya ni payah sikit. Bawa je perjanjian sewaan korang ke pejabat LHDN dan isi borang di sana. Nanti pegawai akan bantu korang selesaikan proses tu. Sebenarnya, ada beberapa lagi cara bayaran yang korang boleh buat, selain dari bayaran tunai di LHDN, antaranya: dapatkan setem hasil dari pejabat pos (kalau duti tak lebih RM500) kiriman wang (money order) dan wang pos (postal order) solicitor’s cheque atau draf bank Perbankan internet melalui STAMPS Korang juga boleh buat proses permohonan secara dalam talian (online) dulu. LHDN dah naik taraf sistem yang dikenali sebagai Sistem Frangki Digital. Lepas isi maklumat dalam talian, korang akan diberikan kod QR. Jadi, bila pergi ke pejabat LHDN nanti, korang hanya kena bawa perjanjian sewaan dan tunjukkan kod QR tu kepada pegawai bertugas. Pegawai tu nanti akan cop hijau atas perjanjian sewaan korang dengan menggunakan maklumat yang dah disimpan secara dalam talian tadi. Sampel 1 dikeluarkan dari penggunaan Sistem Frangki Digital baru, menggantikan cop merah dalam Sampel 2 bermula pada tahun 2011. Walaupun macam tu… Nak setem ni taklah susah sangat Lepas korang buat bayaran, terdapat beberapa jenis setem yang dikeluarkan oleh LHDN. Dokumen yang kena cop sebenarnya bukan satu cara je. Setem yang paling biasa adalah resit setem atau sijil setem, yang dikeluarkan secara elektronik oleh LHDN bila permohonan setem dibuat secara dalam talian melalui STAMPS. Tapi korang masih kena lampirkan salinan sijil setem tu dengan perjanjian sewaan sebagai bukti dan boleh dikemukakannya di mahkamah nanti sebagai bahan bukti. Satu lagi bentuk setem adalah setem yang dikeluarkan melalui penggunaan Mesin Frangki Digital seperti mana ditunjukkan dalam Sampel 1 (pada asasnya, mereka akan cop dokumen korang). Akhirnya adalah setem hasil, yang korang boleh dapat dari pejabat pos, yang warnanya biru tu. Kesimpulannya, korang kenalah pastikan dokumen korang tu ada duti setem untuk melindungi hak korang. Kalau korang ada sebarang kekeliruan tentang hal ni, hubungilah LHDN, sebab mereka sentiasa bersedia membantu kita semua."
"5 ways to ""sue"" someone in Malaysia without going to court Imagine this. You’re going for your routine dentist appointment and your dentist tells you that your wisdom tooth needs to be pulled. So he prepares the equipment for your tooth extraction but during the procedure, he pulls the wrong tooth! In pain, you decide to sue him for negligence. But you realise two things. One, going to court and hiring a lawyer can be expensive; and two, the process could be long and uncertain. This puts you off from wanting to sue him in the first place. Well, good news. In Malaysia, you don’t always have to go to court in order to get compensation, and sometimes you don’t even need a lawyer. This is because… You can appoint someone other than a judge to hear your case There are a few options to settle out of court, which lawyers would call as Alternative Dispute Resolution or ADR for short. These options to settle include negotiations, conciliation, mediation, arbitration and adjudication. These options were made available to help the overcrowding of cases in court. It’s like adding an express lane for 10 items or less at the supermarket. So cases that are less complicated and have a higher chance to be settled without a trial, can be settled. This would cause less congestion of cases in court. So while this makes your life easier by settling your case faster, it also makes the court’s life easier by reducing the backlog of cases. But these alternatives would apply to only civil cases and not criminal. That’s because you can’t really negotiate a crime that someone has committed. Furthermore, these out of court settlement methods are flexible – you don’t have to follow rigid court procedures. Most of the time, parties can set the rules and procedures that they would want to follow during these proceedings. We’ve also added a price rating to help gauge how expensive it is, using the ‘$’ sign. Lowest: $ Highest: $$$ 1. Negotiations Good for: EVERYTHING Price: $ Negotiations are basically an informal discussion solely between the two parties to come to an agreement, without needing a judge or mediator, or basically any neutral third party to oversee it. So if you have lawyers, they can act as your agents and will negotiate a settlement with each other. This method is probably the most basic of all the alternative methods available. Usually, when you do get a lawyer, the first thing they’ll try to do is to call the other party’s lawyer, and try to negotiate a settlement. Only when both parties don’t come to an agreement, then they will decide to proceed with the case in court. 2. Conciliation Good for: Divorce, employment disputes Price: $ Conciliation, on the other hand, will involve a third party who will makes suggestions to the parties to solve their issue. Think of him as a parent listening to their children argue, and making suggestions on how to solve their argument. So in this analogy, if one sibling kept on stealing the other’s toy, the parent will then suggest that maybe the solution is to keep the toy away from the sibling. This method is more common in employment cases and matrimonial disputes as both the Industrial Relations Act 1967 and the Law Reform (Marriage and Divorce) Act 1976 recognise conciliation as a method to solve disputes in these areas. 3. Adjudication Good for: Construction Price: $$ – $$$ Most of the time, adjudication is used in construction cases between the main contractor and their subcontractors, and involves the Construction Industry Payment and Adjudication Act 2012 (CIPAA). This works by having a third party make temporary decision for a contract dispute, and for cases that usually happen before the completion of the project or even while in the midst of terminating the contract. This process is usually super fast and the temporary decision that was given will be put in place until parties are finally able to resolve the issue through arbitration or litigation. 4. Mediation Good for: Family law & other civil cases Price: $ – $$ In mediation, it usually involves a neutral third party to solve the dispute between the two parties. This third party is known as a mediator and does not decide the outcome for the parties, but rather guides the two parties towards a settlement. Parties would be able to opt for mediation even before wanting to file their case in court. This particular alternative would be governed by the Mediation Act 2012. This looks similar to a conciliation where there is a third party involved, but it’s slightly different. In a conciliation, the third party would suggest solutions, and will sometimes be asked to give a settlement proposal. But in a mediation, the third party would not give suggestions—their goal is to find a common ground for both parties to agree on. You can choose your own mediator When it comes to choosing a mediator, parties are actually free to choose a mediator on their own. But if they can’t agree on who to pick, they can actually request the Malaysian Mediation Centre to appoint a mediator from their own panel for them. Most of the time in mediation, parties would be accompanied by their lawyers and the mediator would facilitate the discussions between both sides. Sometimes, the mediator would ask to speak to the parties alone without the interference of their lawyers. Mediation can be used in a lot of areas including family and workplace matters. Sometimes, when a suit has already been filed, and parties have not yet tried mediation, the judge himself would recommend mediation to the parties first to try to resolve their issue, without having to go for a full trial. However, if they still can’t settle their issue, then they would agree to go for a full trial with a judge. It’s cheaper and fair The perks of going for mediation is that it actually costs much less than going for a full trial and it’s even faster than litigation because court trials can be really lengthy—sometimes it even takes years. The fact that it’s a fair proceeding is also a plus point, because whoever the mediator is, he or she must most definitely be a neutral party. The law even requires them to disclose if they can’t be fair to the case. Under Section 7(7) of the Mediation Act 2012, before accepting any appointment, a mediator is required to disclose any information that would likely be seen to cause any biasness on his side. The closed setting and confidentiality is another advantage, as whatever admissions or confessions that are said during mediation can’t be used later on in court as evidence, should the mediation fail. Even communications that were said can’t be repeated in court later on. So security is pretty tight here. 5. Arbitration Good for: Mainly construction but can apply to other areas too Price: $$$ While it can be used for a variety of areas, arbitration is used mostly in construction disputes, and are governed by the Arbitration Act 2005.. This is the closest to having a judge without going to court. In mediation, parties are in control of the proceedings with the mediator just assisting the parties and suggesting options to reach a settlement. But in arbitration, the parties would choose a third party—known as the arbitrator—and he would decide who’s right and who’s wrong. The arbitrator’s decision is binding Sometimes if it’s a contractual dispute, there’ll be an arbitration clause in the contract between the two parties. This clause would usually state that should any dispute arise, both parties will resort to arbitration instead of litigation. But of course, even if there’s no arbitration clause or any prior agreement, parties can still choose to go for arbitration when the dispute happened. Once the arbitrator hears the argument of both sides, he would then make a decision. This arbitrator’s decision would then be known as an award and this award can be registered in the High Court and be enforced against the parties. Parties are free to choose who their arbitrator would be. Fun fact: you don’t have to be legally trained to be an arbitrator. Just someone who has the expertise or qualifications in the area of dispute, if that’s what the parties want. So while the arbitrator would act somewhat like a judge when deciding on the case of the party, at times arbitrators won’t have any legal background. While it can be very expensive, it is also very private One downside to arbitration is that it may sometimes be really, REALLY expensive. But sometimes that’s the price you would have to pay for the privacy. Remember that case how boom gates were made legal? Ever wondered how we came across that judgment? That’s because court judgments actually can be made available to the public. But in arbitration, unless agreed by the parties, no one would be allowed to publish or disclose any information, communication or awards that were made in those arbitration proceedings. This highlights the privacy of arbitration proceedings compared to filing your case in court, as court proceedings are usually open to the public and anyone can sit in and witness the trial. This could be very important especially for larger companies that wish to safeguard their reputations from public law suits and risk their shares taking a plunge. So before thinking of filing your claim in court right away, consider these other alternatives that are more private and even faster to solve your case. Cutting the stress of a lengthy legal battle would prove to be so much more worth it when you’re trying to avoid wrinkles."
"Oral sex is illegal in Malaysia because of an old British law against bestiality In Malaysia, talk about sex can be a huge taboo. So it’s no surprise when criminal sex scandals hit the news it is bound to get tongues wagging. And one of the biggest criminal sex scandals in Malaysia was Anwar Ibrahim’s sodomy cases. Yes, that’s right, cases, as in plural. Though most of us remember Anwar’s accuser as his former aid, Mohd Saiful Bukhari Azlan; Saiful was actually the second person to accuse Anwar of committing sodomy. Anwar’s first accuser was his wife’s driver, Azizan Abu Bakar. In that particular case, Anwar won his final appeal against the sodomy conviction on September 5, 2004. However, it was a different outcome in the 2nd sodomy case – where the Federal Court upheld the sodomy conviction. In the end, Anwar did get out of prison after he received a royal pardon post-GE14. But why are we rehashing old – but, interesting – news? Well, in both those cases Anwar was charged and convicted under a – then – little-known law under our Penal Code, Section 377, or more specifically, Section 377B. While most of us Malaysians call it the sodomy law, there is actually more to it than just that specific rule. While we can’t educate you on sex-ed, we can definitely help analyse Malaysia’s infamous sex law. This law is older than the British Empire As you all (should) know, Malaysia was once 'dijajah' by the British. So it’s no surprise that most of our laws are imported from the British. Now for a quick history lesson on Malaysia’s criminal laws. Back when the British were colonising the world, their biggest base in the Asian region was India. In fact, the British Empire had such a stronghold over India that it was known as the British Raj period. During that time, the British established a Supreme Court in India and created the Criminal Procedure Code 1861—which is the great grandfather of our crime laws. Now, back then, the British weren’t very organised with their laws — they didn’t have a single law that lists down all the criminal offences. Instead, they have a bunch of different laws that deal with different crimes and also common law (meaning decisions from past cases). So when the British created Indian’s Penal Code, they decided to be Marie Kondo and combined all the laws into a single Act – which is much easier. So, when it was our turn to adopt a criminal law system – which was before our independence – we based it on India’s Criminal Code, giving birth to the Malaysian Penal Code 1936. Because of this close connection, even now in Malaysian courtrooms, judges will refer to cases decided in India to explain our laws, or when lawyers go to court to defend their clients. So because the Indian law is based on British Law, basically we (Malaysia) are using British law. The same is also applies to Section 377. Though our law has been revised several times, Section 377 has been mostly left alone, and is similar with its colonial-era version. In short, the law is VERY OLD! Some animal ‘lovers’ took the term too far Section 377 which criminalises ‘unnatural offences’ is based on the British Buggery Act 1533. The section was mainly created to target sexual relations with an animal (aka beastiality) – which is a definite NO from lawmakers. Under this law, any sex with an animal – consensual or not – can be punished with a prison term of up to 20 years, plus whipping. Under Section 377 of our Penal Code, it states: Whoever voluntarily has carnal intercourse with an animal shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine or to whipping. But that isn't the end of what Section 377 contains... Now, the controversial sections within it — namely, Section 377A and Section 377B. Under these two sections, it is a crime to have anal and oral sex as it 'unnatural', regardless of whether a 'Yes' was given to the act. This was considered unnatural as back then, the British were VERY conservative – anythings besides penis-into-vagina straight-missionary-sex was considered ‘unnatural’. If you are caught and charged under Section 377A and 377B, you can be punished with prison for up to 20 years, plus whipping. The law clearly states that: 377A. Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature. 377B. Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping. So why is this controversial? First, it criminalises voluntary actions between two consenting adults. Even straight couples indulge in anal and oral sex when things get kinky under the sheets. The second reason is that activists believe that the section discriminates against the LGBTQ community. While the section does not explicitly target homosexual relationships, it does target sexual acts that are often associated with homosexual sexual relations. Therefore, under Section 377A and 377B, regardless of whether you are straight or gay, married or having fun, 'indulging' in anal or oral sex is a crime that carries prison time. So while your body might say yes, the law definitely says NO. No means no, but only if it’s a man For most of us, rape means a sexual assault against anyone regardless of who that person is. But under the Malaysian criminal law, the meaning of rape is very narrow. What we think rape is and what the law says is rape is very different. Under Section 375 of the Penal Code, rape is only when a man has sexual intercourse with a woman without consent. Seems simple right? But broken down in layman’s term, rape is only ‘rape’ when it involves a man raping a woman using his penis to penetrate her vagina. So if the victim is a man or the rape is done using an object, it is not considered rape. This specific definition of rape seems to make a lot of sexual abuse scenarios legal. But this is when Section 377C and 377CA comes into play. Under Section 377C, oral and anal sex (regardless of gender) without consent is a crime punishable with prison up to 20 years, plus whipping. Whereas, Section 377CA states that rape using an object into the anus or vagina can results in a prison term up to 30 years, plus whipping. The law states it clearly here: 377C. Whoever voluntarily commits carnal intercourse against the order of nature on another person without the consent, or against the will, of the other person, or by putting the other person in fear of death or hurt to the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping. 377CA. Any person who has sexual connection with another person by the introduction of any object into the vagina or anus of the other person without the other person’s consent shall be punished with imprisonment for a term of not less than five years and not more than thirty years, and shall also be liable to whipping. Essentially, what Section 377C and 377CA do is criminalises acts that are not considered as rape under Section 375 as ‘unnatural rape’. In essence, Section 377C and Section 377CA cover up the loophole left by Section 375 when it comes to defining what is and is not rape. Our law protec but it also attac Currently, we still criminalise sexual acts based on laws made centuries ago. And those laws carry harsh penalties despite the fact that sex has evolve A LOT since the early 1500s. However, on the flipside, Section 377 also helps victims and the authorities to punish perpetrators in sexual assault cases that – under normal circumstances – are not considered ‘rape’ under the narrow definition of the law. So the next time you want to get frisky in bed, keep in mind that what you might want to experiment with can land you in jail for a long time."
"In Msia, what happens if you report a crime years after it happened? Back in January of 2019, a monk in Segamat, Johor was detained by the police after two teenagers claimed that he had sexually abused them. The monk was alleged to have performed oral sex on them, and the teenagers, who could not stand it anymore, decided to report it to the police. Some of the abuse could have happened at least three years ago. This case is still under investigation based on the violation of Section 14(a) of the Sexual Offences Against Children 2017. And recently, a teenager also from Segamat, lodged a police report against a man who allegedly molested him when he was 12. The teenager is now 15 years old, and after years of suffering mental illness, has decided to report the case to the police. He claimed that it happened three years ago. Now, you might have noticed that both cases happened three years ago, and only recently were both cases reported. A lot of time may have passed between the event and the reporting, but you can still report it, because... There’s no time limit on reporting a case This means that you can report a crime even if the incident happened years ago. As per Section 107 of the Criminal Procedure Code, a police officer has a duty to accept any reports on any criminal offence committed within Malaysia. And no matter how long ago the crime happened, the police will still investigate it. According to Inspector Thong Ming Joon, an officer from Bukit Aman: “If there is sign of a crime, we will still investigate the case even if it happened years ago.” – Inspector Thong Ming Joon, through an email interview. Whether you’re reporting an old or a new case, the requirements are still the same. You need to provide information such as time, date, place and accurate facts, especially when reporting an old case. Do note that criminal cases are different than civil cases. For civil cases in Malaysia, there is a limitation period to file a case. Generally, the limitation period for a civil case is 6 years. [READ MORE: Is there a time limit for you to sue someone in Malaysia? ] However, it’s not uncommon for victims to not report their case immediately. Which can be a problem, because reporting the case late brings up its own issues. But reporting late can weaken your case First, the person who committed the crime could potentially escape if no one holds them accountable for their crime. Generally, police officers will only start an investigation after receiving a police report. So, if they did not receive one, they wouldn’t know that there is a potential crime that has happened. And it could weaken your case. According to Inspector Thong: “If the (report) was delayed, it could affect the evidence of the case. Chances of failing the case will be higher.” – Inspector Thong Ming Joon. So you can make a police report even years later, but the police officer might miss out on the golden timing to investigate the case. Also, as time passes, you might remember the details wrongly and mislead the police officer when investigating the case. And according to Inspector Thong, there are other reasons why people do not make a police report immediately. For petty crimes that involve small monetary losses, people tend to not make a police report immediately as they think it’s not worth the hassle. Moreover, people might not have the courage or think it’s not important to make a police report. Or worse, be reluctant to report cases that involve friends or family members. In short, if you want to seek justice, you should make a police report immediately or as soon as possible, even if it’s late. It’s cruel, but everyone will ask, “Why?” Your local police officer will probably ask you why. We spoke to Shalvin Kanvinchelvan, a criminal lawyer to clarify on this matter. He said: “The question of why arises. The element of making an unpremeditated police report would come in question, but this may be rebutted with strong reasoning.” – Shalvin Kanvinchelvan, Gerald Lazarus & Associates, through email interview. So, when you make your police report late, you are very likely to lose the credibility of your case. The Investigating Officer will question, why did you report it late, and why now. You might have a strong explanation why, but you would need your lawyer or a relevant authority to support your reasoning. And if your case went to the court, the defence lawyer from the other side might use this point to weaken your case. Make sure your facts are accurate Shalvin Kanvinchelvan also gives some general advice on what to do if you report your case late. “When in doubt, always seek help. Be certain of all facts, never assume and falsify information as you may then have to face consequences of giving false information...” – Shalvin Kanvinchelvan. So if you report your case, make sure that your facts are accurate. Even if you were a victim, making up extra facts to make your case sound stronger can get you into trouble for giving false information. As per Section 182 of the Penal Code: Whoever gives to any public servant any information orally or in writing which he knows or believes to be false, intending thereby to cause….such public servant to use the lawful power of such public servant to the injury or annoyance of any person… shall be punished with imprisonment for a term which may extend to six months or with fine extend to two thousand ringgit or both. In short, if your false information caused the police to investigate someone, and either harmed or even annoyed them, you could be fined RM2000, jailed up to six months, or both. So, if a crime did happen, people are encouraged to report it even if it happened years ago. But still, the best time to make a police report is right after the crime happened."
"Can Malaysian employers force you to sign a contract on the spot? So you’ve finally landed a job after months of looking for one—and you’re expected to start work tomorrow. Maybe it’s your lucky stars, or the company is just really desperate to hire someone. Anyhow, you’re just grateful you have a job now. You’re early to work the next day, and your employer gives you the contract of employment which he wants you to sign...instantly. Everything you want to know about the job is in the contract—but your employer doesn’t give you time to read it. Fast forward 3 months, and you realise your mistake when your leave application was disapproved. Your contract states that no employee can take leave for the first 3 months. The contract seems unfair, but you feel like it’s your fault for not reading it in the first place. But all this happened because you were never given time to read the contract. So the question is: How long does an employee have until he signs his employment contract? Well, this would depend on what your job scope is… Is the company looking to hire you ASAP? If you’ve been working for a while now, you’d know that every employer must provide employees with a contract offering the job. The employee in return, can choose to either accept or reject the offer. When you see a job posting online, the job available is an invitation to treat. If the employer provides you the job, he is making an offer. When you take the job, you’re technically accepting the offer. This agreement between you and your employer is legally binding. [READ MORE: Are all employees protected by labour laws in Malaysia?] Now, different companies have different means of employment. Some companies might only want part-time hires, while some look into longer periods of employment. Here’s a small, but important difference you need to note in employment contracts. There are two types of contracts: Contract OF service Contract FOR service In a contract OF service, both parties agree to have an employer-employee relationship. This applies to our usual full-time contracts and sometimes even part-time contracts. But a contract FOR service normally applies to freelance contracts. Most of the time, you’d see part-time employees being hired immediately due to the nature of the job. So, the contract between the company and employee may have to be signed on the first day of the job. [READ MORE: 5 things you should always do when signing contracts in Malaysia] Now that you know this, what happens if you’re forced to sign the contract without having time to read it first? Your employer can’t force you to sign a contract immediately If your employer timed a stopwatch for 30 seconds after giving you the contract, and takes it away from you the moment you sign it—your employer is said to have coerced (forced) you into signing the contract. Section 15 of the Contracts Act 1950 states: “Coercion” is the committing, or threatening to commit any act forbidden by the Penal Code, or the unlawful detaining or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. If you have been forced by your employer to sign the contract, you can get away from the contractual obligations IF you manage to prove it. You will need to prove that your consent was not freely given due to the time constraint. If you can prove this, you’ll escape the contract even if you signed it without reading. There are also times when the terms in the contract are unfair to one party. If this is the case, the contract will be considered unfair and becomes void. So if your employer writes a contract where you’re on the losing end, the courts will consider this as duress thus making the contract invalid. But this does not mean you should blindly sign whatever your employer gives you… Read the contract before signing it Most of us are aware that if we sign a contract, we’re bound to the terms of the agreement—whether or not we’ve read and understood it. An old UK case might help illustrate this better. In L’Estrange v F Graucob Ltd, Ms L’Estrange signed a contract with a company that supplies cigarette vending machines. Unfortunately, she failed to read the fine print in the contract that excludes any implied warranty (liability) for the company. The machine failed to work and she sued the company for the defective machine. But the UK Court did not favour Ms L’Estrange’s argument and stated this: “When a document containing contractual terms is signed, then, in the absence of fraud or misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not.” In Malaysia, the law also states similarly for contracts. Anyone who signs a contract is bound by the terms of the contract, even if they don’t read it. So unless and until you prove that you’ve been forced to sign your employment contract by the employer, you will be bound by the contract. [READ MORE FOR AN ALTERNATIVE OPTION: Is there a legal way to skip the notice period when you resign in Malaysia?]"
"Apa itu prima facie dan macam mana perbicaraan jenayah berjalan di Malaysia? [Click here for English version] Semua daripada kita mesti tahu secara amnya macam mana perbicaraan jenayah berjalan. Kita tahu yang pihak tertuduh akan ditanya di mahkamah sama ada dia mengaku bersalah atau tak. Kalau dia mengaku tak bersalah, maka perbicaraan pun bermula. Ini jugalah yang kita selalu nampak di media. Walaupun begitu, kalau korang ikuti perkembangan semasa pasal jurujual wanita yang dibebaskan dari tuduhan memandu secara melulu hingga menyebabkan kematian 8 orang remaja baru-baru ni. Korang mungkin tertanya-tanya dan rasa keliru tentang macam mana perbicaraan ni berfungsi, kerana terma yang digunakan oleh mahkamah adalah: “Majistret Siti Hajar Ali membebaskan... tanpa memanggilnya membela diri terhadap pertuduhan itu selepas pihak pendakwaan gagal membuktikan kes prima facie terhadap tertuduh di akhir kes pendakwaan.” – Dipetik dari Berita Harian, 28 Oktober 2019. Jadi muncul juga persoalan. Kenapa tertuduh kena “dipanggil” untuk membela diri sedangkan dia memang dah ada dalam mahkamah? Bukan ke membela diri tu memang kita kena buat bila didakwa dengan apa-apa jenayah? Tambahan lagi, apa dia kes prima facie ni? Bukan ke pihak pendakwa cuma kena buktikan kes terhadap tertuduh? Untuk menjawab persoalan ni semua, jom kita ambil lihat satu per satu dulu – bila mana korang mengaku tak bersalah dan minta dibicarakan. Perbicaraan dah berjalan… tapi tak seperti mana yang kita fikirkan Tak ada keraguan lagi yang korang akan pilih untuk mengaku tak bersalah dan ambil peluang untuk mulakan perbicaraan. Tapi perbicaraan ni bukan bermula terus macam tu je, pihak pendakwa dan pembela pun taklah terus berdebat mempertahankan hujah masing-masing. Sebenarnya, ia lebih kepada sivil walaupun ia jenayah dan setiap perbicaraan jenayah akan ikut langkah yang dah ditetapkan. Bila korang menegaskan diri korang tak bersalah dan minta dibicarakan, inilah masanya kes pendakwaan bermula. Ia kemudianya diikuti dengan kes pembelaan jika pendakwa berjaya meyakinkan hakim bahawa adanya prima facie, bahawa korang bersalah. Selepas itu, kedua-dua kes pendakwaan dan pembelaan akan beralih pula ke penghakiman akhir di mana hakim akan memutuskan sama ada korang bersalah atau tak (dan hukuman yang disertakan, jika ada). Kami akan terangkan setiap peringkat perbicaraan mengikut turutannya. Dan perkara pertama adalah; apa dia kes pendakwaan ni? Ia di mana pihak pendakwaan kemukakan semua bukti mereka terhadap anda Kes pendakwaan adalah apabila pendakwa raya mengambil tempatnya, bercakap dan mengemukakan kes pendakwaan terhadap korang sebagai tertuduh. Tugas mereka masa ni adalah untuk pastikan yang mereka ada semua bukti yang diperlukan untuk membuktikan setiap unsur kesalahan yang korang didakwa dengannya, bagi meyakinkan hakim bahawa adanya kes prima facie. Untuk buatkan korang lebih faham lagi, katakanlah yang korang dah didakwa di bawah Seksyen 302, Kanun Keseksaan kerana membunuh. Faktor kesalahan korang mudah je iaitu menyebabkan kematian orang lain dengan niat untuk menyebabkan kematian atau bahaya yang serius. Apa yang pihak pendakwa raya kena buat adalah, mereka kena buktikan yang seseorang tu mati dan koranglah yang menyebabkan kematiannya dengan niat untuk membunuhnya, atau paling kurang pun dengan niat untuk mendatangkan bahaya yang serius. Sebagai contoh: Ali didakwa membunuh. Pihak pendakwa mengemukakan kes mereka dan menunjukkan bukti seperti berikut: Ali didapati bertengkar dengan si mati beberapa jam sebelum kejadian Rakaman CCTV menunjukkan Ali meninggalkan kedai si mati dengan cara mencurigakan pada masa kematiannya Hakim dapati wujudnya prima facie bersalah dan minta Ali untuk membela diri Korang mesti tertanya-tanya, apa dia prima facie ni kan? Sebenarnya, prima facie bermaksud pada pandangan pertama (on its first appearance) dalam bahasa Latin. Dalam amalan undang-undang, apa yang membuktikan kes prima facie adalah apabila pihak pendakwa berjaya mengemukakan bukti bagi membuktikan wujudnya kesalahan itu, yang jika korang gagal menjelaskan sebabnya, ia akan menyebabkan korang didapati bersalah. Makanya, di sinilah kes pembelaan bermula. Kes pembelaan hanya akan bermula, kalau korang perlu membela diri Dalam perbicaraan jenayah, korang hanya dapat peluang untuk bercakap – sekiranya hakim buat keputusan yang pihak pendakwa berjaya buktikan kes prima facie terhadap korang. Kalau pendakwa gagal membuktikannya bahawa sejak awal lagi korang melakukan kesalahan itu, makanya hakim tak akan membenarkan korang masuk membela diri. Sebabnya, kalau gagal membuktikan prima facie, hakim mesti kena membebaskan korang. Dan inilah yang jadi dalam kes basikal lajak yang diceritakan awal tadi. Bagaimanapun, kalau hakim berpuas hati dengan pihak pendakwa dalam mewujudkan kes prima facie terhadap korang, maka korang akan diarahkan untuk membela diri. Ini jugalah yang berlaku dalam kes penuntut UPNM sebelum ini. Di akhir kes pendakwaan dalam kes pembunuhan itu, hakim mendapati bahawa, pihak pendakwa telah berjaya membuktikan tuduhan pembunuhan terhadap kesemua 18 orang tertuduh. Sebab itulah hakim arahkan mereka supaya membela diri dan dalam perbicaraan seterusnya, pasukan pembela 18 orang pelajar tu pula akan bentangkan hujah mereka. Dalam kes pembelaan, selalunya pihak pembela akan ketengahkan ruang-ruang kelemahan dalam kes pendakwaan, untuk mewujudkan keraguan munasabah. Keraguan munasabah ni penting dalam pembelaan, sebab di akhir nanti, untuk mensabitkan korang dengan jenayah, hakim mesti yakin, di luar keraguan munasabah, bahawa koranglah orang yang melakukan jenayah itu. Melihat kepada contoh kes Ali tadi, apa yang pembela mungkin akan buat adalah mencabar dakwaan bahawa Ali bertengkar dengan si mati dan dia meninggalkan kedai pada masa pembunuhan terjadi. Ini kerana, semua itu masih belum boleh membuktikan Ali sebagai orang yang membunuh si mati. Kes pembelaan akan ditutup – apabila hakim bersedia untuk memutuskan keputusan sama ada korang bersalah atau tidak. Kalau korang berjaya timbulkan keraguan menasabah, maka korang akan dibebaskan. Tapi, kalau korang gagal membuktikan keraguan munasabah, makanya… Hukuman akan dijatuhkan Kalau pembelaan kes tak menimbulkan keraguan munasabah dalam fikiran hakim, ini bermakna kes prima facie pendakwaan berjaya dan korang gagal menjelaskan kenapa pihak pendakwaan ada bukti mengaitkan korang dengan setiap unsur jenayah. Ini adalah bahagian di mana hakim akan putuskan hukuman korang, seperti yang ditetapkan dalam prinsip hukuman, yang kami tak ceritakan dalam artikel ni. Jadi itulah dia. Harapnya dengan artikel ni, korang fahamlah macam mana perbicaraan jenayah berjalan dan kenapa adanya arahan-arahan berbeza daripada hakim dalam pelbagai perbicaraan. Tapi apa yang pasti, hanya ada satu penghakiman akhir iaitu penghakiman sama ada korang bersalah atau tak dengan kesalahan jenayah yang disabitkan. Dan kalau korang nak tahu macam mana pula prosedur dari masa korang ditahan sehingga korang dihukum, kliklah sini."
"In Malaysia, how old must you be to sign a contract? Getting into a contract can be such a basic and common right, we don’t even realise we’re doing it. Contracts happen in our daily lives and it includes things such as buying a flight ticket. But the thing is, contracts aren’t just valid for everyone. In fact, the general rule for contracts is that you have to be 18 and over, as contracts entered into by children aren’t actually valid. Under Section 2 of the Age of Majority Act 1971, if you’re below 18 years old, you are still considered a minor in Malaysia, thus (most) contracts signed by you are invalid. You would first have to reach the ‘age of majority’—which is 18 years old in Malaysia—in order to sign a contract. This is included in Section 11 of the Contracts Act 1950. However, despite the laws mentioned above, there are actually 5 exceptions where a minor can get into contracts that would be valid and binding on them. These exceptions are… 1. Marriage contracts Minors are actually allowed to get married in Malaysia. This might not be that surprising for some of you, as we’ve seen this thing happen before. However, the law for that to happen isn’t that straightforward, as you will see. Under Section 10 of the Law Reform (Marriage and Divorce) Act 1976, the minimum age for a man and woman to get married in Malaysia is actually 18 years old. However, if a female minor has reached the age of 16 years and wishes to get married, she must first get a special marriage license granted by the Chief Minister. However, while the minimum age to get married is 18 years, under Section 12 of the Law Reform Act, if both the man and woman are below the age of 21, they have to first obtain the consent in writing of their fathers. However, this law applies to non-Muslims only. For Muslim marriages, it depends on each state’s Islamic Family Law Enactment—more commonly known as the Syariah law. So for example, in the Federal Territories, under the Islamic Family law (Federal territory) Act 1984 (IFLA 1984), the male must be at least 18 years old, while the female must be at least 16 years old if they want to get married. If they are below the minimum age but still want to get married, they must get consent in writing from a Syariah judge as provided under Section 8 of the IFLA 1984. So marriage contracts are in fact, binding on minors in Malaysia. Even promises to marry that have been made by the minor or by their parents on their behalf are valid as well. And under Section 4(a) of the Age of Majority Act 1971, nothing in this Act can effect the capacity of any person to act in the following matters, namely marriage, divorce, dowry and adoption. This means that even if you are a minor, you can still get married or divorced, as long as you’ve followed the rules— which is getting permission from the Chief Minister or a Syariah judge. [READ MORE: Is child marriage ACTUALLY legal in Malaysia?] 2. Employment contracts Minors can enter into employment contracts too. This is allowed and regulated under the Children and Young Persons (Employment) Act 1966 which states that any child or young person may enter into a contract of service and be employed. Though, they can’t be employers. The new Children and Young Persons (Employment)(Amendment) Act 2019 has also set a minimum age of 13 years old provided only light work is involved as seen under Section 2(2A) of the Act. But while this may seem to open up doors for some employers to take advantage of minors as cheap labour, minors are protected at the same time. This is because while minors are allowed to be employed, they cannot be sued for any damages or indemnity for breach of their employment contract as stated under Section 13 of the Children and Young Persons (Employment) Act 1966. [READ MORE: Is child labour illegal in Malaysia? You might be surprised.] 3. Scholarship agreements Under Section 4(a) of the Contract (Amendment) Act 1976, no scholarship agreements shall be invalidated on the ground that the scholar entering into such agreement is not of the age of majority. This means that as a minor, you can enter scholarship agreements to further your studies. While most scholarships are offered based on your SPM results, there are quite a number of scholarships that are offered based on UPSR or PMR PT3 results as well. For example, international school scholarships. Most scholarship agreements would have terms to be fulfilled such as maintaining certain grades and avoiding any misconduct. If these terms are not fulfilled, it could be seen as a breach of agreement or contract. So a minor can be held liable for breach of this contract for failing to fulfil the terms and can even be sued. [READ MORE: In the 1960's, this Malaysian scholarship student found a loophole to escape his bond...] 4. Contracts for insurance policies Minors are able to enter into insurance contracts such as life insurance policies. Under the Insurance Act 1996, if you are above 10 years old you would be able to own an insurance policy. BUT if you are below 16 years of age, you would require written consent from your parents to own the policy. Minors are allowed to enter insurance contracts because it’s considered in their best interests to protect him/herself. 5. Contracts for necessaries Under Section 69 of the Contracts Act 1950, a person who has supplied necessaries to a minor is allowed to be reimbursed by the minor. Necessaries basically means that goods that are necessary to the minor’s current condition in life. So if he’s hungry and he’s buying food from you, that food is considered necessary. But this doesn’t just affect basic human functions like hunger. To put it into perspective, let’s say you’re a minor and you ordered 12 dresses online. You opted for COD (cash on delivery) and you get excited waiting for your dresses to arrive. However when they do arrive, you refuse to pay and the online shopping site sues you to try to recover the money. The court would actually look at whether you have enough clothes in the first place. So if the court feels that there was no need for you to have extra clothing and that you already had enough clothes, you won’t be held liable. So if the goods that were sold to the minor were necessary to him or her at that time, then only would the contract be valid. While these exceptions seem to put children at risk of being sued for any breach of contract, it also plays a more beneficial role to them. This allows them the ability to purchase insurance policies and enter into scholarship agreements. At the same time, it also protects the person contracting with the child should the child breach any terms of the contract, so at least there’s a fair balance there."
"Must you really go to court to settle your saman? There can be a lot of confusion if you receive a traffic summons and how to settle it. Some things you might hear is that you would need to attend a court hearing to settle it, but then again, there are cases where you don’t. But you might wonder, can you just pay your summons and avoid your court hearing? Or, can’t you just go online and settle it? Because of this, some of you might think it’s too much trouble and just decide to ignore it. But it’s actually not that complicated. To know whether you need to go to court or not, it depends on… The type of summons you get The type of summons you get is based on the offence(s) that you committed. There are two types of offences, which are: Compoundable offence A compoundable offence means that you only need to pay the fine, and you don’t have to attend court. These are usually lighter offences, so setting it is a straightforward matter. Just see which category your offence falls under, then figure out how much you need to pay. You can check which category your offence falls under in this article: [READ MORE: 5 different types of saman that you can get for being a bad driver ] ​​​​​​Non-compoundable offence Non-compoundable offence means that in addition to paying the fine, you also need to attend a court hearing. These are usually major offences, and one example is driving without a valid driving license. So if the police caught you driving without a valid driving license at a roadblock, you’ll have to face the court to settle this. As per Section 26(1) of the Road Transport Act 1987: Except as otherwise provided in this Act, no person shall drive a motor vehicle of any class… on a road unless he is the holder of a driving licence authorizing him to drive… In short, no one is allowed to drive a car, motorcycle or truck without a driving licence. Also, as per Section 26(2) of the Road Transport Act 1987: ...shall be guilty of an offence and shall be on conviction be liable to a fine of not less than three hundred ringgit and not more than two thousand ringgit or to imprisonment for a term not exceeding three months or to both. Basically, whoever is caught driving without a valid driving licence can be fined between RM300-RM2000, imprisoned not more than 3 months, or both. And based on the police officer’s discretion, some might even seize your vehicle in addition to issuing you a court summons. In short, if you receive a non-compoundable summons, you need to attend to the court for a hearing. But don’t worry, because... Going to court isn’t that scary The court might seem like a sacred and unapproachable place, but it’s actually not as scary as you imagined. And the court process, known as a hearing, probably won’t even be that long. Because generally, hearing for traffic summons matter is short. And not only will the judge hear your case, this is also an opportunity for you to appeal (rayu) your summons. For example, if you think the fine is too much and you can’t afford it maybe because you’re a student, you can actually choose to go to court and plead with the judge to lower the fine. Or if you’re willing to pay in full, you just have to plead guilty, pay the amount, and your summons will be settled once and for all. If you do have to attend court, there are dress codes and rules to follow, which can be found here: [READ MORE: Six Things To Remember When Attending Court ] And sometimes, you might even end up not paying anything, because... You can appeal your summons If you have a good and valid reason, filing an appeal for your summons is possible. To do this, you can just email your appeal letter to the branch office, or to your municipal council’s official email address (if your summons is issued by them). But make sure to include any relevant information or evidence. They will then a look at it, and check if you have a valid case. For example, if you displayed your parking ticket but you were still issued a summons, if they think there was a mistake, they will then waive your summons. However, there are cases where people don’t receive a reply at all regarding their complaint. If you didn’t get a reply, you can go to the branch office near you and make a complaint. You could also file a case to the court and ask a lawyer to represent you in the court. It’s not a guarantee that you will win your case., but this is another way to appeal your summons. But generally you can appeal compoundable offence, and not non-compoundable offences. For example, if you’re an emergency lane abuser, you’re not allowed to appeal and you’ll be charged directly to court under Section 53 of the Road Transport Act 1987. The judge will then decide the fine after hearing your case. But basically, if it’s a minor offence that you can just pay up, then you don’t have to attend court. Just check what type of summons that you receive, as there are usually instructions stated on it and what you need to do."
"You can make an appeal if you lose your case in Malaysian courts. Here's how it works Let’s say you went to Subway to get the 6 inch sub sandwich but when you measured it, it was actually only 5 inches long (!!!). So you decide to sue Subway and initiate a law suit against them. But what happens if at the end of case, the judge didn’t decide in your favour and you lost your case? But court decisions, at least the first time, is not the absolute final judgement. If you think that the decision could be wrong or unfair, there’s one thing you can do, which is to file an appeal against that decision. Appealing against the decision basically means making a request that the court review the decision, and hopefully decide that you’re right. But if you want to get your case reviewed, there are a few requirements you have to meet to file an appeal. This is because the Malaysian court has a hierarchy, and where your case was heard will determine where your appeal would go to. But the very basic thing to keep in mind is... You have to ask a higher court to review your case Now from the court’s hierarchy above, only 3 of the highest courts has appellate powers. Which means that they have the power to hear appeal cases and change the decision if necessary. These courts are the High Court, the Court of Appeal and the highest of them all, the Federal Court—which is like the Godfather of courts. The two lowest courts, the Magistrates’ and Sessions cannot hear appeal cases, you can only start cases here. Which means if you lose your court case here, you have to get an appeal at a higher court. But the High Court, the one in the middle, is different. It has a dual function, as you can start cases here, and you can also appeal cases initiated in the lower courts, which is the Magistrates’ and the Sessions Court. Let’s see how the appeal process works, based on where you started your case. [READ MORE: Why does Malaysia have different courts and what do they do?] Appealing from the lower courts to the High Court If you’re appealing from the Magistrate or Sessions Court, your appeal would go to the High Court. Under Section 27 of the Courts of Judicature Act 1964 (CJA 1964), the High Court is allowed to hear appeals from these two lower courts. There is also a limit on the claim amount to see if you can appeal or not. Under Section 28 of the CJA 1964, if the amount claimed is RM10,000 or less, there can be no appeal. But there are two exceptions, which are Appeal on questions of law, which means you’re appealing on how the law was applied in your case. Child support and alimony payments in divorce cases, regardless of the amount. In order to begin the appeal process, you have to file a notice of appeal within 14 days from the date of the decision. In this notice, you have to state whether you’re appealing the whole decision from your case, or only part of it. Appealing from the High Court to the Court of Appeal Appealing to the Court of Appeal from the High Court has a different set of requirement, compared to appealing from the lower courts. Under Section 68 of the CJA 1964, there are three different types of appeal in this case being: Appeal as of right Appeal with leave of court No appeal 1. Appeal as of right This means that you do not have to apply for leave— which basically means asking permission from the court to appeal your case. You are automatically entitled to appeal to the Court of Appeal, but only if: the amount claimed is more than RM250,000 as provided under Section 68(1)(a) CJA 1964 or It’s an interpleader issue that went through a full trial as provided under Section 68(3) of the CJA 1964. What is an interpleader issue? The most basic, simplistic example of this is say you found a phone, and you put a message on Facebook asking for the owner to come forward. But TWO people came forward and claim that it’s theirs. The problem is, you don’t know who the real owner is. This, is an interpleader issue. 2. Appeal with leave of court This is where you have to ask for permission from the Court of Appeal first. If the Court of Appeal approves your request, then you can bring your appeal there. This applies to cases where: The amount that is being claimed is RM250,000 or less. The judgment is on costs only, which are extra expenses spent for your court case, e.g. filing fees, which is the fee you have to pay the court to file a case in the first place. If it’s a summary judgment of an interpleader proceeding instead of a full trial (a summary judgment is a judgment entered by a court without a full trial) But if your request for an appeal is not granted, that would be the end of the matter, as you can’t appeal this refusal to the Federal Court. 3. No appeal This is where you have no right to appeal to the Court of Appeal and these are in circumstances where: There was a consent judgment recorded between the parties. (A consent judgment is where two parties agree to a settlement to end a lawsuit and the terms of the settlement would be in a consent judgment) The judgment of the High Court is declared final in any written law. So if your case was under appeal as of right or appeal with leave of court, your notice of appeal must be filed within one month of the High Court decision. Appealing from the Court of Appeal to Federal Court For this stage of appeal, it involves even more requirements since you are appealing to the highest court in the country. There’s a two stage process under this type of appeal as you cannot appeal directly to the Federal Court right away. First, have to obtain a leave of court—which is asking for permission from the Federal Court to hear your appeal. If they do give you permission, only then would they hear your appeal in full. However, if they refuse your leave application, that’s that and it would be the end of the matter. Section 96(a) of the CJA 1964 sets out the requirements to be able to appeal to the Federal Court. An example is in the case of Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd [2011], where the basic prerequisites was that: The cause or matter must have been decided by the High Court in exercise of its original jurisdiction The appeal must be against the decision of the Court of Appeal The appeal must involve a question of law of general principle that has not been previously decided by the Federal Court before There is a good prospect of success in the appeal. The time limit to apply for leave to appeal to the Federal Court must be within 1 month from the decision of the Court of Appeal. And if the Federal Court grants the leave or permission for your appeal to be heard by the Federal Court, then the notice of appeal must be filed within the time period given by the Federal Court. So, appealing your case isn’t as straight forward as it sounds. It depends on many factors such as the amount being claimed in the law suit, which court you’re appealing to or from, and even whether your appeal is on a point of law."
"Boleh kena saman tak kalau menyamar jadi selebriti?  Mengikut laporan social media dan artikel online pada akhir bulan Oktober 2018, seorang lelaki di Kuala Lumpur telah menghadiri parti Halloween sebagai Datin Seri Rosmah Mansor. Lelaki tersebut bukan sahaja telah mendapat pujian malah tawa orang ramai manakala, di Singapura pula, seorang blogger bernama Xiaxue telah membuat satu video tutorial tentang macam mana hendak ‘jadi Rosmah untuk parti kostum’. Berbanding dengan sambutan yang diterima oleh “Rosmah” di KL, “Rosmah” versi Xiaxue telah mendapat kecaman orang lain bukan sebab dia warga Singapura, tapi kerana apa yang dia telah lakukan boleh dikatakan agak melampaui batas, malah ada yang tak sokong Rosmah pun tak setuju dengan tindakan Xiaxue. Apa yang membuatkan tindakan Xiaxue boleh kena marah dengan orang ramai? Jadi, adakah memakai kostum untuk menyamar selebriti salah di sisi undang-undang, dan bolehkah kita “disaman malu”? Untuk menjawab kesemua persoalan ini, kami telah bertemu dengan Azlan Abdul Razak – seorang peguam yang sekarang ni sedang mempunyai firma guamannya sendiri dan pernah menang kes saman fitnah yang berprofil tinggi. Azlan bermula dengan menyatakan... Istilah saman malu tak wujud, sebetulnya adalah saman fitnah Bagi yang mengetahui atau ada basic dalam dunia perundangan, perkara pertama yang bermain dalam minda mengenai kes-kes di atas ni mestilah defamation atau saman fitnah. Selalu kita akan dengar kes saman fitnah, atau nama glamournya di media “saman malu” ni antara artis-artis atau selebriti. Tapi sebenarnya ni tak tertakluk kepada mereka sahaja, sesiapa sahaja (ye rakyat marhain pun sama) boleh saman atau kena saman fitnah. Bila berbicara tentang defamation atau saman fitnah ni, ada dua perkara akan diketengahkan; iaitu ‘Libel’ yang bermaksud perkara yang dibuat secara lisan dan juga ‘Slander’ iaitu percakapan. Azlan berkata dalam dunia perundangan ia terbahagi kepada dua, iaitu tindakan sivil dan juga tindakan jenayah di bawah kanun keseksaan. Saman fitnah ni terjatuh dalam tindakan sivil katanya lagi, ini adalah kerana ia melibatkan antara satu pihak ke satu pihak manakala kanun keseksaan pula lebih kepada ketenteraman awam. Menurut Azlan lagi, “saman malu” sebenarnya tak wujud dan nama betulnya adalah saman fitnah. “Secara amnya kes defamation ni jatuh kepada civil action. Contohnya I nak saman you sebab you telah menyebarkan fitnah tentang I, dan fitnah you tu telah menjatuhkan reputasi I. Lagi satu pula is criminal charge atau kanun keseksaan, yang ni lebih kepada public order. Contohnya I buat cerita fitnah yang boleh menyebabkan satu negara ni kelam-kabut atau kecoh (Sic)” – Azlan Abdul Razak Untuk sesuatu perkara tu terbukti menjadi dakwaan fitnah kes tersebut hendaklah memenuhi tiga kehendak undang-undang iaitu: Perkataan atau percakapan yang disebarkan secara umum (senang cerita semua orang boleh dengar atau tau) Perkataan atau percakapan yang disebarkan tu ada ‘mangsa’ yang tertentu dan bukannya secara rambang Perkataan atau percakapan yang disebarkan khas untuk ‘mangsa’ tersebut mempunyai unsur fitnah Salah satu kes defamation yang kita boleh lihat balik adalah antara ahli politik Amanah dan UMNO iaitu antara Khalid Samad dan Hasan Ali. Dalam kes tersebut, Hasan Ali telah diarahkan oleh mahkamah untuk membayar ganti rugi kepada Khalid Samad kerana Hasan telah menyebarkan berita khas ditujukan kepada Khalid Samad yang didengari beberapa orang lain termasuk juga Khalid Samad. Percakapan yang dilemparkan oleh Hassan Ali mempunyai unsur fitnah mangatakan bahawa Khalid merupakan seorang pemimpin yang megkhianati Islam. Beza kena saman dan tidak, bergantung kepada unsur-unsur fitnah Berbalik kepada insiden “Rosmah”, salah satu sebab kenapa lelaki yang dress up sebagai Datin Seri Rosmah untuk parti Halloween tidak didakwa mungkin adalah kerana tak ada asas untuk dikenakan dakwaan. Tiada unsur fitnah mahu pun apa-apa perkara seperti tindakan atau percakapan yang boleh menjatuhkan maruah terhadap Rosmah, dengan melihat cara pemakaian lelaki tersebut boleh dikatakan tindakannya tu tak merosakkan imej Rosmah. Seperti yang dilihat kat dalam gambar di atas, cara pemakaiannya hanyalah normal. Malah beg tangan berjenama tu pun telah terbukti bahawa ia milik Rosmah. Walaupun beg tangan berjenama Bijan itu mungkin merujuk kepada hasil rampasan dari kediaman bekas Perdana Menteri Najib oleh pihak PDRM, ia tetap tak boleh dijadikan asas untuk lelaki tersebut dikenakan dakwaan saman fitnah. Menurut Azlan… “Mamat tu pakai beg tangan Bijan untuk menunjukkan Rosmah ada beg tangan yang mahal dan sepatutnya tak mampu dimiliki oleh seseorang yang berstatus seperti dirinya, tapi mamat tu masih tak boleh kena dakwa sebab realitinya pihak polis telah rampas beg tangan Bijan yang sebenar dari Rosmah. Walaupun ia menunjukkan yang Rosmah ada barang yang mahal, ia bukanlah fitnah kerana benda tu dah memang betul-betul jadi.” – Azlan Abdul Razak dalam temuramah dengan AskLegal Azlan juga berkata bahawa tak kisahlah benda tu memalukan macam mana pun, kalau perkara yang didakwa tu adalah benar maka ia tak boleh dijatuhkan sebagai defamation atau fitnah. Tapi ni berbeza pula dari kes XiaXue di Singapura. Antara perbezaan yang nyata antara kedua-dua “Rosmah” ni adalah make up dan baju. Xiaxue telah post video tentang cara-cara untuk dress up sebagai Rosmah. Perkara pertama dalam video dia adalah dengan mengenakan make up yang sangat tebal dan dengan sengaja membuat muka Rosmah berkerak dan pecah. Bab muka tu sendiri mungkin tak mencukupi untuk dakwa Xiaxue tetapi tindakannya untuk memakai baju banduan mungkin satu tindakan yang boleh dikatakan agak melampau. Malah Xiaxue juga telah membuat hidung palsu untuk ‘costume’ ni, tambahan lagi Xiaxue berkata bahawa hidung Rosmah macam sejenis seekor monyet dan ni boleh dijadikan sebagai satu alasan atau bukti yang boleh digunakan untuk saman fitnah. Semasa artikel ni ditulis, Rosmah telah pergi ke SPRM (Suruhanjaya Pencegahan Rasuah Malaysia) hanya untuk memberi keterangan dan bukannya dijatuhkan apa-apa hukuman undang-undang. Berdasarkan baju Xiaxue pakai untuk costume Rosmah, ia boleh dijadikan sebagai asas untuk menfitnah melainkan jika Rosmah dijatuhkan hukuman penjara. Jadi berdasarkan apa yang Azlan telah beritahu, Xiaxue memang boleh kena saman fitnah la tapi kenapa dia rilex je macam tak ada kena apa-apa? Ini adalah kerana untuk disaman oleh isteri bekas Perdana Menteri tu, Rosmah kena pergi Singapura dan failkan saman fitnah di mahkamah Singapura. Boleh je nak dress up tapi kena jaga tingkah laku Jika anda tengok video clip kat atas ni, anda mungkin hairan samaada pihak Elizabeth Tan akan dituduh menyamar anggota PDRM. Tapi kalau tengok betul-betul tak ada pun sebiji macam PDRM yang sebenar, warna je sama tapi lencana serta topi mereka adalah lain. Kalau macam tu tak dikira menyamar sebagai penjawat awam, dan tak memfitnah PDRM. Kalau nak dress up atau memakai kostum seperti selebriti untuk pergi ke parti Halloween atau company dinner boleh je tapi pastikan pakaian dan tingkah laku anda tak memalukan atau tak ada unsur fitnah terhadap karakter yang dipakai tu. Kalau tersilap langkah anda mungkin boleh dikenakan tindakan undang-undang tapi selain dari tu anda selamat. Selamat berpesta!"
"Why is Najib shocked he had to defend himself when he's already under trial? Most of us probably know, in the abstract, how criminal trials work. We know that you are asked before court whether you want to plead guilty or not and if you do plead not guilty, a trial commences. It really is something like what we see in shows all the time. However, if you have been following former Prime Minister Najib Tun Razak’s case, you might hear that he was “shocked” to enter defence. You might also be confused as to how trials really work because of the terms the court used such as: “...Najib Razak has been ordered...to enter his defence for seven charges...Justice Mohd Nazlan Mohd Ghazali made the order after ruling that the prosecution had proven a prima facie case against the Pekan MP.” – as published by The Star, 11 November 2019 [emphasis added] So wait a minute. Why is it that Najib had to be ordered to “enter his defense” when he is already in court? Why would he be shocked, when isn’t that the only thing we have to do if we are ever accused of a crime? Plus, what in the world is establishing a prima facie case? Isn’t the prosecution just supposed to prove their case against the accused? To answer all these questions, let’s take a few steps back to when you first plead not guilty i.e claim trial. Trial does start...but not in the way you think it does There is no doubt that should you choose to plead not guilty and take your chances via trial of the 99 dragons, trial does commence. However, it’s not an immediate battle zone of the prosecution slinging shots at the accused while his defence lawyer steps in the deflect the blows. It’s a lot more civil despite being criminal and every criminal trial follows a set pattern of steps. Upon asserting your innocence and claiming trial, what is known as the prosecution’s case begins. This is followed by the defence’s case if the prosecution manages to convince the judge that on a prima facie basis, you are guilty. It is when both the prosecution and defence’s cases close that the trial is ready for the final judgment of your innocence from the judge (and the accompanying sentence, if any). We will discuss each stage of the trial in the order it happens. First thing’s first; what is a prosecution’s case? It’s where the prosecution presents all their evidence against you A prosecution’s case is when the public prosecutor takes the stage, so to speak, and presents the case that the prosecution has against you, as an accused. Their job at this point in time to ensure that they have all the necessary evidence to prove every ingredient of the offence you are charged with to convince the judge that a prima facie case exists against you. To help you guys visualise this, let’s look at if you are charged under section 302 of the Penal Code i.e for murder. The ingredients for murder is simple; causing the death of another with the intention to cause death or serious harm. What the prosecution has to do now is prove that someone has died and you caused their death with the intention to kill them, or at the very least, with the intention to harm them seriously. For example: Ali is charged with murder. The prosecution presents their case and produces evidence showing the following: Ali was caught arguing with the deceased a few hours before A CCTV recording caught Ali leaving the deceased’s shop in a furtive manner at the time of death The judge finds that there has been a prima facie finding of guilty and asks Ali to enter his defence. At this point, you must be wondering what a prima facie case is. In short, prima facie means on the face of it or at first glance in Latin. In practice, what proving a prima facie case is when the prosecution has produced evidence to prove every ingredient of the offence, which if you fail to explain why, will result in you being found guilty. This is where the defence’s case begins. A defence’s case only starts if you have to defend yourself We know that sounds oxymoronic because if you’re charged with a crime, you definitely want to defend yourself. However, in criminal trials, you would only get your chance to shine (so to speak) if the judge decides that the prosecution has succeeded in proving a prima facie case against you. If the prosecution fails to prove, at a first glance, that it is very likely that you committed that particular crime, the judge is not allowed to order you to enter your defence. If there has been a failure to prove a prima facie case, the judge must acquit you. This is exactly what happened in the cyclists’ case mentioned above. However, if the judge is satisfied that the prosecution has managed to establish a prima facie case against you, then you would ordered to enter your defence. This is the exact situation that happened with the UPNM students awhile back. At the end of the prosecution’s case in that murder case, the judge found that at the face of it, the prosecution had managed to prove the ingredients of a murder charge against all 18 of the accused. This is why he directed them to enter their defence and the next time trial commences, the defence team of each of those 18 boys will take the stage. A defence’s case consists of poking holes in the prosecution’s case and more importantly, establishing reasonable doubt. Establishing reasonable doubt is the crux of a good defence because at the end of the day, in order for you to be convicted of a crime, the judge must be convinced, beyond reasonable doubt, that you were the one who has committed the crime. Looking at the example with Ali earlier, what a defence would do is probably adduce evidence to show that while Ali was arguing with the deceased and he did leave the shop at the time of the murder, all of this doesn’t prove that Ali was the one that ultimately killed the deceased; all it shows is that Ali had beef with the deceased. The close of the defence’s case is when the judge is ready to hand down his sentence; guilty or not guilty. If you manage to prove reasonable doubt, you would be acquitted. However, if you fail to prove reasonable doubt, then… The hammer falls If the defence’s case does not raise reasonable doubt in the judge’s mind, this means that the prosecution’s prima facie case stands and you would have failed to explain why the prosecution had evidence to link you to every ingredient in the offence. This is the part where the judge will hand down your sentence, as guided by the sentencing principles, which we won’t go into for the purposes of this article. So there you have it. We hope that this article has clarified how criminal trials work for you and how while there may be different orders given out by the judge at various points in the trial, there will only be one penultimate judgment i.e the judgment on whether you are found guilty for the crime you are charged with. If you want to know about how things work from the moment you are arrested until you are sentenced, click here."
分享前请三思! 5样大马人不该分享在社交网络的东西 [Click here for the English version] 社交网络就像你的阅历，陌生人都会先看你的社交网络平台来作为认识你的参考。 为了打造出让别人看起来你生活很美好的脸书（Facebook)或是Instagram，我们都在找寻着某些特别的时刻来保存在我们的社交网络，无论是一生人一次你偶遇最爱的明星，或是难得在具有异国风情的餐馆吃着精致料理的瞬间。有些人甚至把所有的生活细节都分享到社交网络，可是背后到底你分享的咨讯和照片是不是安全（尤其是小孩子的照片）又或者其实你分享的咨讯可能危害到别人和自己的人身安全，你有考虑过吗？ 多亏了现代的资讯发达，大众和有关部门都可以在社交平台上分享自己的遭遇；经验和方法，使大众对这些事情有所警惕。比如说，随意把自己的身份证和银行资料上传到社交网络平台是很危险的行为。当你拥有了这些基本的警惕，你便可以开始关注那些大家时常忽略的潜在法律和问题，那样的话可以加强你的危险意识。 所以，在这篇文章里，我们将探讨5个你经常看到的网络分享以及它们对你造成的潜在影响。 1. 名字和名誉 公然羞辱别人的文章或者是分享别人的八卦是脸书的一大常态，这些看热闹或用着’言论自由‘的名义来随意发文章的行为其实是非常冒险的。你知道吗？这些行为可能是在损坏别人的名誉，也称为毁谤。以上的行为在马来西亚可以归类为民事案件（可以告对方因双方不和）和刑事案件（诽谤是也算是犯罪）。 即使那个人是真的做了伤天害理或是真的罪不可赦，值得别人‘人肉搜索’他都好， 都不是最直接可以把他绳之以法的方法。伸张正义有许多方法，但公开他人的隐私在社交网络平台让大众公审绝对不是明智之举。因为网友只是普通人，他们只能帮你一起骂或者打抱不平，但实质上是做不到什么的。如果你的用意只是想要讲别人的坏话和故意说些什么（即使是真的）来破坏他们的名声，你将有很大可能会被判毁谤罪。更不用说你是散播不实的谣言。 更糟糕的是，被你点名的人是有权力向警察报案，并将你控告以及要求赔偿。这是因为在马来西亚刑事法典第499条文中指出，毁谤是一项罪行，严重的话是会坐牢的。有关案例我们从一些匿名告白的专页（Confession Page） 见到，就是学生在那个专页里散播另一个学生的谣言以换来的别的关注。 总的来说，对付这些键盘侠最好的方法将他们举报到警察和有关的单位。 2. ‘终于可以实现我梦寐以求的度假了！’的分享 你想去一个地方旅行很久了，细心地策划了你的行程然后终于存到了足够的旅费！要去旅行的日子慢慢的到来，就在当天你拿到了登机证，看着登机证的你，激动地迫不及待，想要拍一张登机证来分享你期待已久的此时此刻。 但是！但是！但是！（重要的事要说三次），基于人身安全考量，千万不要那么做。你会觉得，难道泄漏身份证上的资料不是更危险吗？登机证上看似普通的资料很容易让不怀好意的有心人或是骇客便于截取你的登机证来登陆你的账号而窜改你的资料。某些航空网站的页面很容易登入，输入几个在登机证上的资料就可以了。成功登入后，你的航班内容，包括出发时间；座位号码；甚至你的飞机票编码，都一览无遗。 如果你真的很想要分享你的登机证，一定要确保分享前你编辑过（马赛克或是用颜色涂掉）那些个人资料，尤其那些可以轻易让电脑软件容易读取的机票编码。当然如果只是朋友之间的分享是没什么要紧，但还是必须提防那些有犯罪意图的人利用你的资料来做坏事。 更不用说，如果你有打卡（check in）告诉大家你在哪里甚至在自己家打卡的习惯，让大家知道你不在家或是透露你现在所处，会让那些已经虎视眈眈你家很久的歹徒更容易针对你犯案。 3. ‘小明在。。。打卡’ 的动态 你们认为到处打卡是过度分享吗？ 如果你注重你的安全，最好不要在网络留下你日常生活的痕迹。你当然你有你的自由打卡；被实时追踪的权力，但当这样的行为会增加你被跟踪；追踪的风险，最好慎重选择你要分享的圈子（谁可以看到）将是一个明智的分享途径。 当部分的社交平台使用者开启手机或电脑定位服务时，似乎会公然地透露了自己的住家和工作地址。这点不要担心，只是在朋友之间的分享当然是安全的。但如果你把定位服务设定为公开，这样会让跟踪者和强盗，或是不怀好意的人方便以你来做为目标。 虽然我们都应该拥有自由分享事物的权力，可是必须小心和提防悲剧可能会发生，与其冒险和不顾一切地分享自己的隐私，适当地保留一些私人的数据也未尝不是一件坏事。如果本身是需要很积极经营社交平台的使用者，比如说网红，需要时常分享自己的实时位置，你可以考虑在和朋友私聊的情况下分享你的位置，或是与赞助厂商讨论，在你离开那个地方后才打卡。 4. ‘有兴趣的话pm我’ 的发文 社交网络平台都将很多东西都简单化了，包括创业或是开始自己的副业来提供商品给源源不断网络商机。很多人都曾在网络上拍卖过，只需简单的发几张照片，描述你要卖的东西和价钱，然后简短地补上一句：‘有兴趣的话pm我或是加我号码来知道详情’。 在马来西亚消费者权益保护法案（电子商务）2012中指出，如果你的网络生意是用以上的发文方式，可能会为你带来麻烦。早在2013年8月3日已经有这方面的管制条款，可是消费局给了一段蛮长的时间来让网络商家去调整和适应新的改变。 总的来说，现在的网络商家在提供商品列表和服务的时候必须附上以下的内容： 卖家的名字（无论是人名，店名或是公司名字） 商家注册的号码（如果有） 卖家或公司联络详情（电子邮件，电话号码，地址） 对你提供的商品或服务重点描述 商品或服务完整的价钱和费用（运送费，税等等） 付款方式 预计货到达的时间 除非你想要快速脱手你的东西而在社交网络平带进行一次性买卖，任何不实或者蓄意隐藏以上的内容的商家，都是一种罪状（如有遭遇这样的商家也可以通过热线1-800-886-800进行举报） 5. 上传小孩的照片的发文 为人父母的骄傲和喜悦，有谁能忍着不在自己的朋友圈分享小孩可爱的模样和与孩子相处欢乐的瞬间？相信大多数父母都曾经上传过类似的发文。 分享自己孩子的照片不是一种犯罪，但如果你不熟悉社交网络隐私设定的话，将很有可能危害到小孩的隐私权。在马来西亚，有些父母发现自己小孩的照片被滥用然后上传在色情网站上。如果小孩照片是在住家附近拍的话，手机的定位服务也可能将家里位置也标入照片。无意间透露了小孩子的所在地给可能尾随作案的色魔知道，是非常危险的。 在马来西亚的多媒体法（Communications and Multimedia Act 1998)中， 滥用孩童的照片是一项罪行。当孩童的身份被曝光，小小年纪称为受害者的那个伤害是就算再严厉的惩罚都弥补不了，受害者身心灵背负的压力和伤疤。伤害一旦造成了，就再也感觉不到网络和人身是安全的了。 再次提醒你，社交网络的隐私设定是非常有效和重要的。前妇女部长呼吁大众避免在网络分享家庭照，可是如果你真的很想上传家庭照，请切记要加倍小心。在还没让孩子正式使用社交网络时，你应该要教导孩子如何正确使用以及懂得怎么保护自己。恋童癖者使用哄骗小孩的招数千种百样，孩子不管身心灵都还是不够成熟的，难免会有点困难去分辨是非。 总来说，好好利用你的隐私设定和别轻易接受好友请求 最好保护自己的隐私的方法是限制游览权限，选择只让朋友可以浏览你的社交网络平台，个人资料和照片。为了有效的加强你的隐私权，首先你必须过滤你的好友请求然后只接受你认识的人。 一个很好的参考就是：只接受你在现实生活中认识的人。如果你的社交网络是帮助你扩大你际网络的工具，那么你可以尝试从他/她的社交平台中了解他们，以及加你好友的目的是什么。现今的社会也有很多人使用假账号来诈骗他人的钱财或是爱情陷阱。请大家也必须小心使用社交网络，我们都有责任营造更优质的网络社交环境。
"Did you know that you can actually file complaints against Malaysian lawyers? That’s it. You’ve just done it. You’ve just sunk your life’s savings into buying that first home of yours. Now, as a savvy AskLegal reader, you know that hiring a lawyer is always a good move when you are getting involved in legal transactions. You’re pretty sure you snagged a good lawyer because your guy is suave and charming and always ready to quip with a joke. Sometimes, it feels like you guys are actual bros instead of being in a client-lawyer relationship. Feeling at ease with your lawyer, you don’t doubt him for anything. One day, your phone starts buzzing. It’s the seller telling you the deal is off because you failed to pay the purchase price...but you did! You transferred RM500,000 to your lawyer for him to pay the seller. You rush over to your lawyer’s office only to have him tell you that all the money you paid was just for his legal fees. Now, you know that lawyers are expensive but they can’t be that expensive...right? But you don’t know what to do in this situation because you would usually hire a lawyer to demand an answer but what happens when the fraudster is a lawyer? The question you might have in mind is… Who watches the watchmen? We all know that when a legal problem crops up, we hire a lawyer to solve it. But the situation gets a little trickier when the cause of the legal problem is a lawyer. There is always the option of hiring another lawyer to take down that first lawyer (think of using a bigger bug to eat a smaller bug) but that can get expensive and you might actually be distrustful of lawyers from that bad experience. This is where the Advocates and Solicitors’ Disciplinary Board steps in. The Board is basically a body that is in charge of hearing complaints against lawyers made by laypeople like you and I who feel like the lawyer may have done something wrong. If the Board finds that the lawyer in question is indeed guilty of what he is accused of, the Board can take any of the following actions against him: Reprimand the lawyer Fine the lawyer up to RM50,000 Suspend the lawyer for up to 5 years Strike the lawyer off the Roll (what this means is that the lawyer is no longer an advocate and solicitor and cannot practice law) Order the lawyer to repay you the money you are entitled to e.g if he cheated RM10,000 from you, he can be asked to pay that RM10,000 back Before you get excited and sharpen your pen to furiously write down complaints, the main question is – what can you complain about? Complaints about snobby attitudes are well...not gonna make the cut Generally speaking, complaints can be submitted when a lawyer has committed a “misconduct” but what exactly counts as a misconduct? We all know that there are certain things that are certainly a no-no like stealing from your clients or bribing the judge but what about those issues that justttt skirt the edges of right and wrong? For example, what if the lawyer tells the judge that his client is sick when actually the client just overslept and is late to court? Does that count as a misconduct? Well, the starting point is actually section 94 of the Legal Profession Act 1976 (“LPA 1976”) which states that misconduct is the conduct or omission of an advocate and solicitor that amounts to “grave impropriety”. This can include many things such as being convicted of a criminal offence, using their office space as a showroom for ladies’ garment (there was seriously a case on this), or even doing something as simple as lying. Lawyers can also have complaints lodged against them if they fail to comply with the various ethical rules that the Bar Council has set out for them. These rules govern things like how a lawyer is to act, how his fees are to be calculated, and how he is to handle his client’s money. However, as wide as a misconduct can be, it is typically related to conduct which may bring down the reputation of the legal profession and is not a conduct that is proper for lawyers to engage in. This means that you can’t lodge a complaint against a lawyer simply because he is arrogant or if he has a superiority complex. Now that we’ve gotten the hard part out, the real question is… How do you file a complaint? The unofficial first step is to gather all your evidence. Think of it as a game of poker; one of the rules of the game is to have a poker face and not reveal your hand. The same goes for this (and almost every other life scenario, really). If you have suspicions that your lawyer has been untruthful towards you, start gathering evidence such as proof of payments, messages exchanged between the both of you that may shed light on your complaint on the sorts. After that, head towards the Disciplinary Board and fill up a simple form. The form needs to be completed with basic information such as your name and address, the name and address of the lawyer you are complaining against, the details of the complaint (here’s an example of how it looks like). You can also hire another lawyer to represent you in the complaint proceedings and if you do so, you would have to give the Board details of your new lawyer as well. You must submit the form with a processing fee. The fee is RM200 at the time of writing. Thirdly, you must also submit a statutory declaration. A statutory declaration is just a more formal way of making a declaration of your knowledge. The statutory declaration signed by you must be witnessed by a Commissioner of Oaths and basically just states that to the best of your knowledge, the details of the complaint you have submitted are true. You can check out a sample here. What happens after the complaint is filed? The hammers of justice come raining down – no, we kid. It’s a whole lot more bureaucratic than that. After your complaint is filed, the Board will evaluate your complaint to see if it holds water and if it does, it will proceed to issue a request to the lawyer you complained about to explain himself. If the Board is of the opinion that your complaint is baseless, they will proceed to dismiss it. Once the lawyer you complained about submits his response, you will be allowed to reply to it (if you like) and then the parties will appear before an appointed Disciplinary Committee to have a hearing of the complaint. This is where you will get a chance to question the lawyer, put your evidence forward, and basically make your case. If you manage to convince the Disciplinary Committee that the lawyer did commit the acts complained about, then the Committee will take necessary actions against the lawyer. Now, you might be thinking that while learning how to make complaints against lawyers is all well and good, prevention is always better than cure. So, the key question really is – how do you find a trustworthy lawyer in the first place? There’s no set formula actually Chances are, you would have hired your lawyer because you were already friends with the guy or because you knew him based off recommendations from family or friends. Most Malaysians wouldn’t know where to start looking for lawyers and it’s not like you can google reviews for lawyers like you do food. So, the only tip in this situation is to go in with both eyes open. Never take things for granted and never trust blindly. If you’re completely at a lost to start, you can use the Malaysian Bar’s Find A Lawyer page to find lawyers practicing within the state (read Penang, Selangor, etc. and not broke, depressed, or millennial) you are in."
"Can you sue Malaysian developers if your condo looks different from the show unit?  Remember the guy who spray-painted and hammer-smashed his own apartment in KLCC, when the unit he got was allegedly nowhere near as promised in the marketing material? This story entails a similar situation—but this time instead of a sledgehammer, he went with a judges’ gavel for justice. If you’ve ever passed by booths in a real-estate expo, promoting “your next dream home”, you’d expect to see a brochure with an exclusive model-house like this: You might find it impressive enough to make a visit to the show unit, learn about the other great features and...next thing you know: You’ve signed the SPA, taken a loan, and wishing the next 4 years would pass faster so you can get your keys. But 4 years later, you end up getting this: This is an actual experience shared by our two interviewees, Michael and Angela. In fact, Michael pointed out that he loved the hanging gardens in the brochure so much (pic above), that he specifically bought a unit on the floor where they were supposed to be. With a sad smile, he says that he still got his ‘hanging gardens’—people have started hanging their laundry there to dry. Now, if you’ve ever been in Michael and Angela’s situation—whether it involved buying property or even something on Lazada, you’d probably know what it feels like getting into a bad bargain. Most of the time... You can sue, but it’s tough We need to first clarify that Michael and Angela aren’t their real names. The lawsuit is still ongoing and revealing actual details may jeopardize their case; which is also the reason why the developer isn’t being named. But according to Michael and Angela’s lawyer, there are two claims they could make against the condo developer: 1. Breach of the Sale and Purchase Agreement When Michael and Angela purchased the individual units, they were promised several things. For instance, each condo unit was said to have 4 windows and porcelain flooring. This was stated in the Sale and Purchase Agreement (SPA) between the buyers and the developer. [READ MORE: Have you ever bought a house in Malaysia and had no idea what you signed?] However, what Michael and Angela got was not what their SPA stated. Their condo units had 3 windows instead of 4, porcelain tiles instead of homogenous tiles—and on top that, they were promised a Marina Bay inspired hanging garden, but ended up getting a designated smoking area with random potted plants around. So Michael and Angela sued the developer for breaching their contract of agreement. 2. Misleading the buyers with brochures of an exclusive condo In the developer’s brochure, the hanging gardens amounted to a representation of the amenities of the condo. And that representation actually made Michael buy the condo unit. Under Section 18 of the Contracts Act, a misrepresentation is basically when someone tells you an untrue statement, and that statement actually makes you enter the contract. And since Michael was so in awe with the hanging gardens that was advertised in the brochure, he even asked for a unit on the same floor as the hanging garden. But when the condo was finally built, and he discovered that the hanging garden is nothing like what he was promised—legal action was taken on the grounds of misrepresentation. [READ MORE: What can you do if you get cheated shopping online in Malaysia?] As we mentioned earlier, suing a developer for a breach on the SPA or misrepresentation isn’t exactly easy—especially if only two people are suing. Which is why Michael and Angela decided to take a leap of faith... They sued the developers with 152 other people Michael and Angela initially brought up this issue with the Joint Management body (JMB) of the condo. But then, they realised that the crux of the problem lied with the developers of the condo. However, suing a developer was not an easy thing to do. That is when Michael and Angela decided to find other unit owners who shared the same pain as they did. Their next course of action is known as a class-action suit. They decided to sue the developers along with their neighbours over the bad bargain that they’ve all gotten into. According to Order 15 Rule 12 of the Rules Of Court 2012 a class action suit is: “At any stage of proceedings under this rule, the Court may, on the application of the plaintiff...appoint any one or more of the defendants or other persons as representing whom the defendants are sued to represent all, or all except one or more, of those persons in the proceedings...in exercise of the power conferred...” A class action suit is basically done when a group of people sue an individual/corporation together over a particular matter. The advantage of a class-action suit is, the cost of the lawsuit will be divided among a larger number of people—thus making it cheaper, but much more substantial with a larger number of people. However, convincing people to sue a large development company isn’t easy. At that time, the number of occupants in the condo were approximately 700 people. Michael went knocking door to door, handing out flyers and talking to neighbours about suing their condo developer. Fortunately, their efforts paid off. Six months later, they managed to convince 152 neighbours to join their class action suit, and raised nearly RM 7,000 from each condo owner to cover the legal fees. They proceeded to file a case against the developers to make monetary claims against the developers. The developer then tried to settle this dispute out of court. They offered the residents RM 6,000 each to withdraw their suit. This initially seemed like a good bargain, but when the building surveyor determined the current value of the units—The offer was considered deceptive. According to Michael, the market value of his condo is less than RM400,000 after a year, despite buying it for more than RM500,000. So suing the developers will obviously give the aggrieved residents a bigger compensation amount. Suing bad developers is tough, but not impossible Despite not taking the developer’s side offer, there was also no certainty that the residents will win the case against the developers. As this case is somewhat an essence of David-Goliath, regular Malaysians too can join hands to sue big developers if they don’t get what they’ve been promised. Michael and Angela went on to tell us, that they’re not just doing this for themselves. They hope other home owners with similar problems take legal action against their developers, with proper efforts. The process of suing the developers may seem tough and almost impossible—but a class-action suit will definitely help ease the burden of aggrieved home buyers. At present Michael, Angela and the 152 residents have filed their case against the developers. The trial of the dispute is expected to start in January 2020."
"Ganggu meter TNB? Anda boleh didenda sampai RM1 juta [Click here for English version] Korang mesti ada kawan yang beritahu dia dapat jimat bil elektrik sampai ratusan ringgit, sebab pasang alat tertentu pada meter TNB mereka. Ada jugalah dia nasihatkan korang supaya buat benda sama untuk jimatkan bil elektrik. Kalau tak nak pasang apa-apa alat sekalipun, ada juga yang ubah suai meter supaya bacaan tu rendah. Mungkin korang ada terfikir – apa salahnya nak berjimat kan? Tapi, apa yang korang fikir tu sebenarnya salah dan mungkin akan buatkan korang dapat masalah lebih besar kemudiannya. Ini kerana… Anda boleh dianggap mencuri elektrik, kalau mengganggu meter TNB Korang mungkin terfikir yang mencuri ni cuma boleh jadi kalau korang secara haram sambung kabel untuk curi elektrik. Tapi rupa-rupanya, mengganggu meter TNB juga boleh dianggap sebagai mencuri. Sebabnya, dengan gangguan tu – ia akan menyebabkan meter menunjukkan penggunaan elektrik lebih rendah dari jumlah sebenar yang sepatutnya. Jadi, ia boleh dianggap sebagai mencuri elektrik. Tapi tak la korang akan terus kena tangkap lepas ganggu meter. Sebabnya, kalau TNB syak meter korang tunjukkan bacaan yang tak teratur, mereka akan siasat dulu kenapa hal tu jadi. Kalau mereka dapati yang korang dah ganggu meter tu, mereka akan buat laporan polis terhadap korang dan tukar meter yang diganggu tu dengan meter baru (yang korang kena bayarnya) supaya ia tunjukkan bacaan yang tepat. Mereka juga akan mula kira balik SEMUA caj terdahulu yang korang dah tipu dan keluarkan notis atau saman untuk jumlah caj yang belum dibayar. Tapi sebenarnya, bagaimana anda boleh dianggap bersalah kerana ganggu meter Kecederaan atau kerosakan akibat gangguan Di sinilah datangnya Akta Bekalan Elektrik 1990 (ESA 1990), yang memperuntukkan beberapa seksyen melibatkan aktiviti mengganggu meter. Sekyen 37(1), akta ini menyatakan: Mana-mana orang yang mengganggu atau melaraskan apa-apa pepasangan atau bahagiannya atau mengilang atau mengimport atau menjual apa-apa kelengkapan sehingga menyebabkan atau mungkin menyebabkan bahaya kepada nyawa atau anggota badan manusia atau kerosakan pada mana-mana kelengkapan atau harta lain adalah melakukan suatu kesalahan dan bagi setiap kesalahan sedemikian, apabila disabitkan, boleh dikenakan denda tidak melebihi satu juta ringgit atau penjara selama tempoh tidak melebihi sepuluh tahun atau kedua-duanya. Ini bermakna, kalau korang mengganggu meter elektrik korang dan ia ada kemungkinan akan menyebabkan bahaya dan kerosakan kepada harta benda atau orang, korang boleh didenda sehingga RM1,000,000 atau penjara 10 tahun atau kedua-duanya. Kalau korang menjual sebarang alat yang boleh mengganggu meter, korang juga boleh dikira bersalah di bawah seksyen ini. Selain dari dihukum kerana mencuri elektrik, mengganggu meter juga sebenarnya boleh membawa bahaya. Ini kerana, kalau korang menggangu meter, fius mungkin tidak berfungsi dengan baik dan boleh menyebabkan kebakaran. Makanya, korang di sini bukan saja membahayakan diri sendiri, tapi juga orang lain. Selain itu, kalau korang secara cuai menyebabkan kecederaan/kerosakan kepada orang lain atau harta benda kerana disebabkan gangguan pada meter, korang boleh didakwa di bawah Seksyen 37(2) akta sama. Di mana, korang boleh didenda sehingga RM100,000, penjara sehingga 5 tahun atau kedua-duanya. Tidak jujur menggunakan elektrik dan merosakkan meter Seksyen 37(3) menyatakan mana-mana orang: dengan curang mengambil, mengguna habis atau menggunakan elektrik atau mengubah pinda meter atau menghalang meter dari merekodkan bacaan tepat boleh didenda sehingga RM1,000, dipenjara sehingga setahun, atau kedua-duanya. Kalau korang lakukan kesalahan ni untuk kali kedua, korang boleh didenda sehingga RM5,000 dan tak lebih RM100,000, penjara sehingga 3 tahun atau kedua-duanya. Tapi, hukuman ni cuma untuk pengguna domestik yang selalunya adalah pemilik rumah. Untuk kes pengguna bukan domestik pula, mereka boleh didenda tak kurang RM20,000 dan tak lebih dari RM1,000,000, penjara sehingga 5 tahun, atau kedua-duanya. Tapi untuk kesalahan kali kedua pula, mereka boleh didenda tak kurang RM100,000 dan tak lebih RM5,000,000, penjara sehingga 10 tahun atau kedua-duanya. Pengguna bukan domestik ini selalunya adalah pemilik lot kedai dan pejabat. Selain itu, merosakkan atau mengalihkan meter juga boleh membuatkan korang didakwa di bawah Seksyen 37(14), iaitu boleh menyebabkan korang didenda sehingga RM50,000, penjara sehingga 2 tahun atau kedua-duanya. Membantu orang lain untuk mengganggu Walaupun korang tak ganggu meter elektrik korang, Seksyen 37B, ESA 1990 ada peruntukan untuk mereka yang membantu orang lain melakukan kesalahan di bawah akta ini. Maknanya, korang boleh dikira bersalah juga. Dan ia membawa hukuman sama seperti orang yang mengganggu meter, tapi hukuman penjaranya separuh dari peruntukan maksimum. Jadi, korang tahulahlah kan kesannya kalau tolong kawan buat benda ni. Tapi macam mana kalau syarikat atau penyewa rumah anda yang mengganggu meter? Seksyen 37A dalam ESA 1990 merangkumi kesalahan yang dilakukan oleh badan korporat termasuklah syarikat. Kalau sesuatu syarikat tu didapati mengganggu meter, seksyen ini menyatakan – mana-mana orang ketika itu yang bertindak sebagai pengarah, CEO, COO, pengurus, setiausaha atau pegawai serupa yang lain didakwa bersama dalam prosiding yang sama dengan syarikat itu. Kalau syarikat didapati bersalah, mereka hendaklah dianggap melakukan kesalahan itu melainkan jika mereka membuktikan kesalahan itu dilakukan tanpa pengetahuan atau persetujuan mereka, dan mereka telah mengambil semua langkah yang munasabah untuk mengelakkan kesalahan itu dari berlaku. Bagaimanapun, kalau korang tuan rumah yang sewakan rumah korang kepada penyewa, TNB ada bagi nasihat supaya pemilik buat perubahan penyewaan dengan tukar nama pada akaun bil sedia ada. Ini dibuat untuk elakkan pemilik berdepan dengan bil-bil tak berbayar kalau penyewa dah menggangu meter. Apa yang TNB boleh buat? Mereka sebenarnya boleh potong bekalan elektrik korang kalau mereka syak korang dah ganggu meter, seperti mana yang diperuntukkan dalam Seksyen 38(1), ESA 1990. Selain dari berdepan dengan dakwaan jenayah, TNB juga boleh failkan saman sivil terhadap korang seperti dalam Seksyen 38(3) dengan syarat mereka kena sediakan satu pernyataan bertulis di bawah Seksyen 38(4) yang mengandungi butiran berikut: amaun kerugian hasil atau perbelanjaan yang ditanggung oleh TNB cara pengiraan kerugian hasil dan butiran perbelanjaan; dan orang yang bertanggungan bagi pembayarannya Kalau mereka tak failkan tuntutan di mahkamah untuk menuntut kerugian, mereka hanya boleh tuntut kerugian berjumlah sehingga 6 bulan dari tarikh kesalahan dikesan. Disebabkan hal ini, ia memaksa mereka memfailkan saman sivil terhadap korang supaya mereka taklah hilang tuntutan kerugian maksimum yang ditanggung. Undang-undang melibatkan gangguan meter ni sebenarnya cukup tegas kerana bersebab. Walaupun ia bertujuan untuk menghukum mereka yang mencuri elektrik, ia juga bertujuan untuk menghalang sesiapa daripada membahayakan orang lain, dan menghalang kemalangan daripada berlaku, hanya kerana ada orang yang cuba menganggu meter mereka."
"Here's the law that Najib used to stop Tony Pua from talking about 1MDB With the 1MDB scandal blowing up over the past few years, many revelations have been made causing a few reputations here and there to plunder. Defamation suits which are meant to suppress fake allegations have been filed in an attempt to save those reputations. Such suits were when Najib Razak, the former PM who is accused of embezzling the 1MDB funds, filed a defamation suit against Tony Pua, the DAP MP, in 2017. Najib filed this suit claiming that Tony Pua had defamed him by making comments in a live video linking Najib to the 1MDB scandal that was uploaded on the internet. Najib had also filed for an injunction against Pua to prevent him from making similar comments and airing the video clip. Though, this injunction was recently set aside by the Court of Appeal. Yet, this wasn’t the only defamation suit filed in the 1MDB case. Najib had also filed another suit against Harakah and Harakahdaily, PAS’s official news portal. This time it was for an article they had published in 2015 which stated that he had allegedly abused the 1MDB fund. In addition to claiming damages, he also applied for an injunction to prevent the news portal from further publishing the article. He had of course filed these defamation suits as he maintained that he had no links to the 1MDB scandal, and that all these statements about him were false as they could not prove it conclusively. While the term injunction has been thrown around a lot in the 1MDB scandal, you might wonder what could this legal term actually mean and how do they work in such defamation suits. You can use injunctions to force someone to apologize For example’s sake, let’s suppose someone said some fake things about you, and you want them to stop saying it. So you sue them for defamation. But then, you also file for an injunction. An injunction is basically a court order to prevent or compel an act. So that means an injunction works in two ways: Prohibitory where it aims to forbid or restrain an act, or mandatory where it would force a party to carry out an act. In a defamation suit, a prohibitory injunction for example could prevent media from publishing any articles or videos that would be seen as defamatory to you. For a mandatory injunction, the court can compel whoever that has made the defamatory statement against you – whether a person or company – to retract their statement and issue a public apology. Though, mandatory injunctions are almost never granted before a trial unless it is an exceptional and extremely rare case. How urgently you need the injunction also determines the type of injunction being filed. This is split into two types being an interlocutory injunction or an interim injunction. If you don’t need it urgently, an interlocutory injunction would be granted before or during the trial. It is valid until the end of the trial where a final injunction then may be given. Applying for this injunction involves an inter-parte application which means that if you filed an application for this injunction, both you and the person you’re suing must be heard by the judge with regards to granting this application. If you do need it urgently, an interim injunction on the other hand would usually be granted instead and is valid for 21 days. The reason this is used for urgent cases is because the application for an interim injunction would be by an ex-parte application. Ex-parte means that while one party would be making the application, the judge would only need to consider your application alone without needing to hear the other party’s case. So the application process is much faster in a way compared to an inter-parte application which requires both parties to be heard by the judge. Judges don’t just give out injunctions In defamation cases, the courts would usually look at three requirements before establishing there was in fact defamatory statements made. These three requirements are: The statements made are defamatory in nature The statements referred to the person filing the defamation suit The statements were published or communicated to a third party or another person [READ MORE: In Malaysia, shaming someone on social media could land you in jail] But before the trial begins – to determine whether these statements were indeed defamatory – you can first file an application for an injunction to prevent the statement or video from going around even more. Though, how likely the courts are to grant these injunctions depends on whether you can meet the requirements of the injunction being applied for. There are two previous cases that help us decide on how the injunction is applied. The general rule of granting an injunction in defamation cases was set out in the case of The New Straits Press (M) Bhd v. Airasia Bhd where the Supreme Court had ruled that an injunction should not be granted in defamation cases where the Plaintiff has failed to prove that the Defendant’s statement is untrue. This would mean that in order to be granted an injunction, it is for you to prove that the statements made about you were false. Additionally, in the case of Ngoi Thiam Woh v CTOS Sdn Bhd & Ors, the court actually stated the general requirements in granting an injunction in defamation cases: That the statement is unarguably defamatory There are no grounds for concluding that the statement may be true There is no other defence which might succeed There is evidence of an intention to repeat or publish the defamatory statement However, courts are generally hesitant in granting injunctions in defamation cases. Even in these defamation cases, the requirements set out above for injunctions are much more different as compared to the requirements for the typical injunctions in general cases. While most defamation suits also includes a claim for monetary compensation, applications for injunctions are also filed most of the time. This is so because filing an injunction may act as damage control in a way, where it prevents someone’s reputation from being further tarnished. This is important because suppose that person has a business, his business could take a hard hit from negative false statements going around about him. Or it could even ruin someone’s employability. Sometimes you can just shake on it While injunctions are quite a common path to take in defamation suits, there are actually other alternatives one can look at. Instead of going through a trial and get an injunction, they can decide to settle the case out of court. So for example, you can come to an agreement with the person who made the defamatory statements about you, to retract their statement and issue a public apology. This type of settlement can be seen when the Primary Industries Minister, Teresa Kok, filed a defamation suit against Azawanddin Hamzah from Jaringan Melayu Malaysia (JMM). She filed the suit when Azwanddin made a comment stating that Teresa Kok was allegedly involved in the land dispute over the Seafield Sri Maha Mariamman temple. (This is the temple where the multiple riots happened which costed firefighter Muhammad Adib his life). The case did not go to trial as there was an out of court settlement between Teresa and Azwanddin, where Azwanddin agreed to publish a public apology within a week in The Star, Sin Chew Daily and Sinar Harian. He also had to retract his statement on his social media. However, Azwanddin did not follow through with the agreement, so Teresa is now bringing an action for contempt of court against Azwanddin for failing to comply with the terms of the settlement. Besides that, parties can also opt for a memorandum of understanding which is a formal agreement between the two parties. Although it’s not legally binding, it signifies the parties’ intention to follow whatever is laid down in the agreement and is based on trust between the two parties. More like a gentleman’s handshake, but in a more official way. So sometimes, claiming for monetary compensation isn't the main focus in defamation suits. Filing an injunction can be more important, as it can prevent someone’s reputation from being tarnished further."
"Is your M'sian company providing the best employment benefits? Here's how to determine If you’ve ever seen a comic or meme about office life, it usually portrays office employees as powerless peons earning money for a cold, uncaring corporate machine. There is a basis to this, however, as the early days of the industrial revolution saw many business owners taking advantage of workers through unreasonable working hours, underpayment, or simply being fired for no reason at all. But today, most countries have enacted laws to protect employees from exploitation, and Malaysia is no different. We introduced the Employment Act in 1955 to provide a list of guidelines that employers must follow to provide their employees with basic rights and care. While companies must follow the minimum requirements in the Employment Act 1955, they can also create company policies that exceed these requirements. One such company is Hewlett Packard Enterprise, or better known as HPE. While we normally associate Hewlett-Packard with consumer electronic products like laptops and printers, HPE is actually a separate company that provides IT solutions like servers, networking, and other back end services that ensures your computer is able to access websites, cloud services, and cat videos on the internet. HPE has been putting a lot of focus on the wellbeing and growth of their employees, many of which go beyond the minimum requirements. So here’s how you can tell if your employer is doing more than required by the law. 1. Giving you MORE than 8 days of annual leave Here’s the minimum number of annual leave days your employer needs to give you: 8 This is according to Section 60E(1) of the Employment Act 1955, which states (in part): “An employee shall be entitled to paid annual leave of—(a) eight days for […] a period of less than two years” However, these 8 days are the minimum only if you’ve been working with the company for less than two years…you actually get more leave days the longer you stay with the company as outlined in Section 60E(1): Less than 2 years: At least 8 days per year. Between 2-5 years: At least 12 days per year. For more than 5 years: At least 16 days per year. HPE provides a minimum of 15 days of annual leave for their employees. The number of leaves increase the longer you stay with the company. Now if taking leave isn’t your thing, some companies allow employees to carry forward the remaining days or receive cash compensation for the unclaimed days—but this would solely depend on the company policy. HPE’s policy allows employees to carry forward their remaining leaves to the next year. But there’s a limit to the leaves carried forward. Employees can only carry forward a total of 15 days of their annual leave, to the next year. And here’s the best thing about annual leaves: You can actually take them at any time, for any reason, and you’ll not have your salary deducted. However, a 2011 survey indicated that 65% of Malaysians don’t use up all of their leave days. It is also found that this trend is shifting in younger employees, with Gen-Y employees more willing to take personal leave time or go on ad-hoc holidays; and Gen-Z is no different – if anything, annual leave is even more important to them. 2. Giving MORE than 60 days of maternity leave (or to FATHERS) By law – specifically Part IX of the Employment Act – every female employee is entitled to at least 60 consecutive days of maternity leave; but this only applies if she has been with the company for at least 90 days, and within 4 months leading up to her confinement period (the period where a new mother rests indoors after giving birth). And like annual leave, maternity leave also paid in the form a maternity allowance, which is her regular monthly salary. However, there is no legal requirement for new fathers to receive paternity leave. This means that it’s up to companies to decide on paternity leave policies… or not at all. HPE provides both maternity and paternity leave to its employees. New mothers and fathers are provided up to 26 weeks (or 182 days) of paid leave, which: Can be taken at any time, following birth or adoption Can be taken continuously, or separated to 13 weeks each (if both parents are employees of HPE) Still allows the employee to receive their regular base pay (a.k.a paid leave) Applies to both full-time AND part-time employees If you’re planning to be a dad but not an HPE employee, there’s some good news on the horizon – The Human Resource Ministry recently made a proposal for male private sector employees to be given paternity leave…for 3 days. 3. Starting ‘wellness programs’ for employees As we mentioned earlier, it is not illegal for companies to have their own special policies. But due to the rise in health issues among employees, some companies adapted fitness/wellness programs to help overcome unhealthy lifestyles among employees. There’s little doubt that working in an office can lead to unhealthy lifestyles not just from stuff like bad eating habits or a lack of physical activity but, in some extreme cases, to using alcohol and drugs to cope with stress. This concern led to the Ministry of Human Resource issuing a Guideline on Dealing with Alcohol and Drug Abuse although, as the title says, it’s a guideline for companies to implement into their existing policies rather than required by law. Realizing the hazard caused by unhealthy lifestyles, and made certain initiatives for the well-being of their employees. HPE introduced the Wellness Fridays program, to focus on the mental and physical health of employees. Wellness Fridays are basically half days—HPE employees get to leave work 3 hours early on one Friday each month. This is to encourage employees to use the remaining time of the day to do something that improves their overall health. For some of us, this could include going to the gym or spending time with family and friends. The best part? It’s still considered a full workday, so it doesn’t affect your salary or annual leave. 4. Hospitalisation benefits and sick leaves Even the best employees fall sick from time to time. With an MC from your panel clinic, you may be entitled to a certain number of paid sick leaves depending on how long you’ve been working for the company. Based on the Employment Act, you’re entitled to sick leave if you’ve been: Employed less than 2 years: 14 days per year. Employed between 2-5 years: 18 days per year. Employed for more than 5 years: 22 days per year. If you need to be hospitalised, you’re entitled to 60 days of paid sick leave in total per calendar year. But don’t forget to inform your employer that you won’t be showing up at work. Now if you’ve ever had surgery or needed to be admitted in a hospital, you’d know all about the additional expense that can be incurred from the cost of medications alone. Most companies including AskLegal provides employees with a medical card—which gives us free medical treatment at a panel clinic (yay us!). Now this should not be confused with medical insurance, which is another type of benefit that some companies provide. At HPE, they introduced the myChoice Flexible Program. The program comprises of 13 benefits for employees, and it includes a medical program and Total Permanent Disability program (TPD) which is a life protection plan that covers employees. So if you work for a company that loves you in sickness and in health, you’d never have to worry about expensive medical bills...or not being able to work due to health issues. 5. Giving TRAINING to employees If you’re new to a company, there’s a chance you’re going to start off with a training session or orientation. This isn’t a legal obligation but simply because the company needs to show you the basics on how to get work done. But this isn’t the kind of training we’re referring to. What we’re referring to is the additional training to improve your skills or help you develop new ones. In fact, a survey conducted by JobStreet revealed that, apart from benefits and incentives, Malaysian employees also prioritised career development opportunities. One thing to note is that Malaysian law doesn’t make it an obligation for companies to train or advance their staff, unless it’s related to safety or other compliance matters. In fact, the Employment Act only covers Apprenticeships, where an apprentice is employed to be specifically trained in a certain skill or field for at least two years. This is different from internships, where the training is more generalized and for a much shorter time. HPE has a program for fresh grads that’s kinda like a middle ground between an apprenticeship and internship. The HPE Graduate Program lasts for a year, and is structured in a way that allows fresh grad employees to be directly involved with two projects within HPE. For instance, if you applied to be part of the Strategy and Planning team, your first project will be on strategy and planning, and your second project will be on management. Each project will last for 6 months, with a mentor and buddy system to guide you through the professional and social sides of the job. HPE also has a networking program for young employees called the...well… Young Employees Network. It basically allows young employees from different sectors within HPE to network and share knowledge not just among themselves, but with other HPE employees around the world, while also breaking down organizational barriers between higher management and new employees. You can read more about this here. The law sets a minimum standard, but companies can go beyond If you really think about it, you probably spend more time at work than anything else. As younger generations are placing more importance on work-life balance and additional benefits a job can offer, companies are beginning to take notice and adapt. HPE is just one example of how companies can go the extra mile in this regard, so if you’re out looking for a job, perhaps it’s a good idea to ask if the company provides the additional perks you’re looking for. But if the additional stuff isn’t important to you, then you should at least be aware of the bare minimum that your future employee must provide you. After all, the backbone of any organization are its employees."
"Can Malaysian universities take disciplinary action on students who protest? Recently, a University Malaya graduate did a solo demonstration demanding the resignation of the university’s vice-chancellor. Wong Yan Ke reportedly carried a placard on stage during the convocation ceremony—bearing the words “Undur VC” (Step down VC) and “Tolak rasis” (Reject the Racist) while receiving his scroll. UM condemned Wong’s solo protest but did not withhold his degree certificate, despite the accusations. Instead, UM lodged a police report against him for the protest. Now, this isn’t the first time we’re hearing news on protests, being taken part by uni students. Most of the time, protests are carried out in groups and not by one person...alone. So with the whole one-man protest being a hot topic among Malaysians—the question is, can the student be punished for protesting during his Convocation? But first, let’s clarify on how protests work under the law: Protesting is a constitutional right As we mentioned earlier, Malaysians are no strangers to protests. In fact, we have seen many over the years. Now, it should be noted that protesting is somewhat a Constitutional right. Article 10 of the Federal Constitution guarantees this: “(a) every citizen has the right to freedom of speech and expression...” Basically, a protest is an expression of a person’s disapproval towards something. For instance, if you’re unhappy with your boss, you may choose to express it by protesting outside the office for a day or two. Most of the time, protests are done in large numbers. There are no requirements on the number of protestors under the law. But if a protest is carried out by a large number of persons in a public place, the law under Peaceful Assembly Act 2012 must be complied. [READ MORE: How to organise a (legal) rally in Malaysia?] We spoke to Alex Anton Netto, who clarified how protests work in our previous article. Here’s how he put it: “A protest is the act of putting forth a strong objection. One need to also remember that the act of boycott (protest)...is something that is guaranteed under the Federal Constitution. Article 10 of the Federal Constitution guarantees Freedom of Expression…” – Alex Netto from Anton & Chen. There have been cases in Malaysia where issues involving Freedom of Expression had to be dealt with rather: delicately. As much as the Federal Constitution states our rights to freedom of expression—there are exceptions to it. Article 10(2) of the Federal Constitution states the exceptions to freedom of speech, which includes making a defamatory statement or inciting an offence. For instance, if you’re a threat to national security (which is an offence) or went around spreading lies about someone (Defamation), your right to freedom of speech might be ended. Now that we know this, can UM actually take legal action against Wong for carrying out a solo protest? You’ll be surprised to know that... Universities can’t stop students from expressing themselves Now, a university can only revoke or bar students based for some reasons. In this case, UM’s Law Society stated that a student can only be revoked if he fails to clear academic bills or committed dishonesty in his academics. Which can mean, that under UM’s policies Wong’s protest may not fall under gross misconduct. The Law Society went on to defend Wong, that he had only exercised his freedom of expression. The exceptions to freedom of expression may not apply as he did not incite any offence, including defamation. [READ MORE: Defamation laws in Malaysia] Students are allowed to exercise their freedom of expression in universities. Under Section 15(4)(b) of the Universities and University Colleges Act 1971 (UUCA): “(4) Notwithstanding subsection (3), a student of the University shall not be prevented from— (a) making a statement on an academic matter which relates to a subject on which he is engaged in study or research; or (b) expressing himself on the subject referred to in paragraph (a) at a seminar, symposium or similar occasion that is not organized or sponsored by any unlawful society...determined by the Board...to be unsuitable to the interests and wellbeing of the students or the University.” Basically, the Act states that students cannot be prevented from expressing himself on academic related matters at a seminar or any similar occasion. So long as the occasion is organised by a lawful society, the student who is protesting is not breaking the law. UM can make a police report, but not revoke Wong’s degree When you look at this solo protest situation from a legal perspective, Wong may not have breached his right to freedom of expression. However, the place and time he picked do protest is said to be unsuitable. Our Youth Minister, Syed Saddiq too stated that a Convocation ceremony is not the right occasion to carry out a protest. But protests are normally done to express thoughts/opinions to a larger audience. For instance, protesting during a campus holiday would seem impractical, if nobody is around to hear you. As much as freedom of speech is a constitutional right, there are laws which prevent the disruption of an official ceremony—such as the law against disrupting public peace in the Penal Code. As for now, the provisions under the UUCA makes it tough for students to be involved in politics. But the government has proposed a Bill to repeal the UUCA, and include student participation in political activities by 2020."
"Is it really okay if you don't pay your parking saman in Malaysia? If you drive, you’ve probably received a saman before. It could be from parking without a coupon, double parking, or even using a mobile phone while driving. But instead of paying it, you might decide to just stuff it into your glove box that is already overflowing with older samans and not pay it, because...why should you? You are an informed citizen. You’ve heard from your friends or family that summons from your city council AKA your Majlis Perbandaran’s (DBKL, MBPJ, MPM) is no big deal. Just ignore it. But make sure that you pay summonses from the traffic police and JPJ. That’s the only important one. Nothing bad will happen(lah) if you don’t pay the city council’s saman. But is it true? What’s the difference between these summonses? A local council like DBKL is responsible for issuing summonses with regard to parking lot issue and offences under the Road Transport Act 1987. Examples are illegal parking, parking at the yellow box at the wrong time and failing to display your parking coupon. The officer from DBKL is given the power to compound under Section 120(e) Road Transport Act 1987: An officer of the appropriate authority specially authorized in writing by name or by office in that behalf by the Minister charged with the responsibility for local government may in his discretion compound any such offence against this Act… Therefore, an officer from any local council has the power to give a summon under any offence in Road Transport Act, but realistically they mainly give summons on the parking issue. JPJ is responsible for summons regarding registration, vehicle licensing and conduct that affects other drivers. For example, leaving your car without shutting off the engine, driving on the bus lane, or using the wrong font or size on your number plate. There are four categories of driving offences under JPJ’s rules based on your behaviour and your vehicle: Category 1 – You directly caused an accident or traffic jam Category 2 – You could potentially cause an accident Category 3 – Your vehicle has technical issues that could cause an accident, such as a broken headlight Category 4 – Any offence besides the above but didn’t cause an accident PDRM is responsible for the safety of citizens on the road. They’ll curb dangerous acts such as using your phone while driving, driving on the emergency lane and making illegal U-turns. They usually issue summons during roadblock and high traffic season, especially during the festive season such as Hari Raya. We’ve written an article before to help you figure out which category your PDRM saman falls under. [READ MORE: 5 different types of saman that you can get for being a bad driver ] And contrary to popular opinion, you can’t just ignore your local council’s summons, because... Your local council now has the right to blacklist you In 2011, the Road Transport Act 1987 was amended, where JPJ collaborated with city councils such as DBKL to enforce the collection of the fine. So under that collaboration, DBKL will then refer traffic offenders to JPJ to take action on them. So if you think that a summon might magically disappear if you ignore it long enough, think again. Because now, even if you have ONE unpaid summons, your name will stay in their system. So in a sense, getting traffic summon from DBKL is the same as getting one from JPJ. The good news is, as long as you pay your summons, your name will be removed from the list. The bad news is, if you ignore it, within 45 days, bad things will happen—your name will be blacklisted. Previously, if you had unpaid summons, DBKL would tow your car to force you to pay up. But a recent court ruling has made it illegal to seize cars belonging to drivers with unpaid summons. But towing cars aside, DBKL can be considered sort of linked to the JPJ. Therefore, you should pay your DBKL summon to avoid going to court or getting blacklisted. The most common consequence of getting blacklisted is you might not able to drive anymore. And that’s not good because... You can get more saman if you are blacklisted Your problem doesn’t end there. Once your name is blacklisted, you can’t renew your road tax and driving license. These two things are necessary to drive legally. In a sense, they’re saying you can’t drive (legally) until you pay up. Because essentially, driving without a valid road tax and driving license is a serious traffic offence. If you’re daring, you can still drive your car while your name in the blacklist. But depending on who catches you doing it, two things can happen. If you’re caught by JPJ: You’ll be summoned to court, and you can only pay your fine there. Which means you’ll have to go through a hearing (and potentially a lecture) before paying your summons. If you’re caught by PDRM: If you’re caught at a roadblock with an expired road tax, they can issue you a summon for it. So be careful if your name’s on the blacklist; the authority will haul you down. You can ignore it but you can't hide it If you receive a court summons from your local council, you’ll be given a notice for the court date. You might think if you reject, deny or ignore the notice from the court, you won’t have to attend the hearing. But whether you accept it or not, it won’t change the court date. The hearing will happen even if you’re not there. As per Section 53 (1A) of the Road Transport Act 1987: If a person who has been served a notice… refuses to accept or denies receipt of the notice, the notice shall be considered to have been served to that person on the date of service of the notice. So no matter what you do, the hearing date will be set based on when your local council sent out the notice. And if you don’t attend, the court can issue a warrant to arrest you as per Section 53(2) of the Road Transport Act 1987: If any person… fails to appear in person or by counsel, then...issue a warrant for the arrest of that person unless, in the case of a compoundable offence, that person has within the period specified in the notice, been permitted to compound the offence. And in case you’re thinking of waiting for the discounts on summons to happen, think again. The discount period is actually not consistent, as the government has never set down a regular period, whether monthly or annually, to have the discount event. In fact, to encourage us to settle the summons early, the government has only implemented a minimum fine for unpaid summons. So ultimately, if you just want to save money right instead of piling up your summon until it reaches thousands of ringgit, it might be wiser to just pay it earlier."
"Can a Malaysian company be Muslim? Here's the court case that gave us the answer (Note: Article has been updated to include his acquittal from his Shariah case in Dec 2020) In 2012, Ezra Zaid was arrested by Jabatan Agama Islam Selangor (JAIS). His crime? Ezra’s publishing company, ZI Publications, published and distributed a banned book called ‘Allah, Kebebasan dan Cinta’. He was said to have committed a religious offence for distributing books deemed offensive to Islamic teachings. Since ZI Publications published and distributed a book that was banned, they will naturally get in trouble with the law for it. However, the law that they actually got in trouble with was the Syariah Criminal Offences (Selangor) Enactment 1995 which applies to Muslims only and not companies. So, because they charged Ezra personally since he is the director of the company, this created two arguments: Can the law go after directors of a company if it was the company that broke the law? [READ MORE: If a company in Malaysia fails, can I sue the directors?] If ZI Publications was charged under the Syariah Criminal Offences (Selangor) Enactment 1995 which only applies to Muslims, does that mean a company can be Muslim? While No.2 might sound a little silly on the offset, it does actually bring many legal implications to question. This is why it sparked a lengthy legal battle that recently reached a decision on September 25th 2019. It started out with a JAIS raid Back in May 2012, ZI Publications Sdn Bhd published a BM version of the book ‘Allah, Liberty and Love’ (Allah, Kebebasan dan Cinta) by Irshad Manji, a Canadian writer. This book was thought to be offensive to Islamic teachings. On the 24th May 2012, the Home Ministry announced that both the BM and English version of the book are banned. Now, when a company commits a crime, only the company can be charged for it. The exceptions would be in extreme circumstances, which we will discuss later. This is because a company is considered to be a separate personality than the directors or employees. So if there were any charges to be made in this case, it will be against ZI Publications, not the people behind it. But when the Jabatan Agama Islam Selangor (JAIS) found out about ZI Publications publishing and distributing this book, they had other ideas. JAIS’ charge against ZI Publication’s director JAIS raided ZI Publications’ office in Kelana Square just 5 days after the Home Ministry had issued the book ban. They also confiscated 180 copies of the BM book during the raid, and arrested the publication company’s director, Ezra Zaid. JAIS carried out the raid and arrest on the basis that Ezra Zaid had committed an offence under Section 16(1) of the Syariah Criminal Offences (Selangor) Enactment 1995 which reads as: Any person who- (a) prints, publishes, produces, records, or disseminates in any manner any book or document...which is contrary to Islamic Law; or (b) has in his possession any such book, document...for the purpose of...disseminating it, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both. They claimed he was guilty for publishing and distributing Allah, Kebebasan dan Cinta and for possessing 180 copies of the book. He was charged in the Syariah Court in March 2013, but pleaded not guilty to the charges and claimed trial. Ezra’s challenge against the Syariah charges his next part is quite complicated as it involves different law suits involving different laws. But here is the short version. In addition to dealing with the Syariah courts, Ezra also decided to challenge the charges in the civil court. There, he filed 3 separate civil law suits against JAIS and here are the outcomes: Using Syariah law to ban books that are against Islamic law is unconstitutional – Ezra lost Challenged the Home Ministry’s reason for banning the book – TBC JAIS’s raid, seizure, arrest and prosecution was illegal – Won (for now) For his first suit, the Federal Court dismissed it in 2018. They ruled that JAIS acted within their powers of enacting Section 16 and that the section was valid and not unconstitutional. For the second suit, the Federal Court allowed the Government to appeal to keep the ban on the book. The third suit, however, was recently decided by the Court of Appeal, and answered the question: Can Syariah laws apply to a company? Now get ready for the law explanation.. A company is technically a “person” What is a separate legal personality for companies? You might be wondering what separate legal personality actually means. Under Section 20 of the Companies Act 2016, it is stated that a company incorporated under the Act shall have a legal personality separate from its members. This basically means that a company exists as a legal entity on its own and is separate from its members like directors, employees and so on. [READ MORE: Sendirian Berhad companies exist today because this man won a lawsuit in 1893] So if you want to sue a company for any wrongdoing, you can only sue the company alone and not any of its members. Unless of course, this corporate veil is lifted as there are some circumstances where the members of the company such as the directors could be held liable as well. This could be in instances where directors use the company’s name to commit fraud or carry out illegal activities. The arguments in the Court of Appeal hearing We had the opportunity of interviewing Ezra’s lawyer, Fahri Azzat, on the points that were raised during the Court of Appeal hearing . One of the main points was that since the publishing and distribution of the book was done by ZI Publications Sdn Bhd, charges should be brought against the company instead and not on Ezra personally as the director of the company. This is because ZI Publications Sdn Bhd as a company possesses a separate legal personality. It was this argument of separate legal personality that was put forward in the Court of Appeal for Ezra Zaid’s case. They argued that as a director, Ezra did not commit any fraud or abuse the company’s name to conduct illegal activities, that requires for the corporate veil to be lifted and for him to be charged personally. They contended that the charges should have been brought against the company instead. That being said, their second line of argument was that as Ezra was not supposed to be charged, even if the charges are brought against the company, they won’t be valid. This is because these charges are for religious offences and companies cannot be held liable for religious offences. Ezra’s lawyer, Fahri Azzat, had stated that: So our argument was charging Ezra Zaid was wrong because firstly, those acts JAIS complains of were the act of the company, ZI Publications, and secondly, in the absence of any grounds for lifting the corporate veil, Ezra Zaid cannot and should not be made personally liable for acts of the company. A part of the argument was that a corporate entity cannot be charged in the Syariah Courts because they have no jurisdiction over a corporate entity because it is not a person who can profess the religion of Islam and cannot possess racial characteristics i.e. being a Malay. Since the charges here are based on religious offences under the Syariah Criminal Offences (Selangor) Enactment 1995, this raises the question: Can a company actually hold a religion and be charged for these religious offences? While a company is an entity on its own, it’s virtually impossible for a company to profess any religion. For religious offences under this particular law, it is expressly stated under Section 1(2) that this Enactment would apply to Muslims only. As companies cannot profess any religion or possess any racial characteristics like individuals, the Enactment would not apply to corporate entities. This would mean that even if the publication and distribution of the book were done by ZI Publications Sdn Bhd, the Syariah Criminal Offences (Selangor) Enactment 1995 wouldn’t apply on them as the company would not be considered Muslim. This is regardless of the religion the directors or other members of the company holds as the company is separate from its members using the separate legal personality. No, a company cannot have a religion On 25th September 2019, the court came to a decision: The Court of Appeal ruled in favour of Ezra Zaid. The court quashed his arrest and prosecution by the Selangor Syariah Prosecution Chief, in addition to awarding costs and damages for the mental distress Ezra had suffered throughout this whole ordeal. This in a way insinuates that the court had agreed with the arguments put forward by Ezra’s team of lawyers: a company cannot claim to have a religion. In September 2020, the court also rejected JAIS’s appeal, which means the decision stands. And finally, in December 2020, he was released and acquitted by the Shariah court. However, all copies of the book ‘Allah, Kebebasan dan Cinta’ will be seized and destroyed. But Ezra’s company wasn’t the only case. Back in 2019, Sisters In Islam (SIS) also ran into a similar situation where a fatwa was placed on SIS (which is registered as a company). Similarly, they challenged the Selangor Fatwa Committee on the basis that since they are registered as a company, the decisions of the Selangor Fatwa Committee would not apply to them. However, in this case, the judge actually said that because the company and directors of SIS are Muslim and that their activities are in relation to Islamic laws, the fatwa would still apply to them. While this case is related, it is also different from Ezra’s case because SIS is also directly involved with Islamic activities. Anyhow, SIS is planning to appeal the decision to the Court of Appeal (which is where Ezra won his case). Ezra’s issue was that he was wrongly charged for these religious offences when his company had carried out the publication and distribution of the banned book. Whereas in the SIS case, it was unique as the court had taken into account the religion of SIS’s directors and activities of the company as compared to Ezra’s case."
"5 perkara yang pekerja kena tahu sebelum lancarkan mogok terhadap syarikat [Click here for English version] Seperti mana yang kita semua dengar, Foodpanda baru-baru ni jadi perbualan ramai bila mana ‘rider’ penghantar makanan syarikat itu melancarkan mogok selama 3 hari. Ini kerana, mereka membantah skim bayaran baru yang diperkenalkan oleh platform penghantaran makanan itu, bila mereka dibayar berdasarkan jumlah penghantaran, dan tak lagi dibayar mengikut jam bekerja. Kerana secara amnya, penglibatan pekerja dalam mogok adalah salah di Malaysia. Jadi, persoalan yang timbul sekarang: Adakah rider Foodpanda ni akan dapat masalah nanti? Tapi, kita semua kena tahu dulu perbezaan yang ada dalam kontrak perkerjaan. Ada dua jenis kontrak iaitu: Kontrak perkhidmatan Kontrak untuk perkhidmatan Dalam kontrak perkhidmatan, kedua-dua pihak bersetuju untuk menjadikan hubungan mereka sebagai pekerja dan majikan. Ini terpakai kepada kontrak sepenuh masa dan juga kontrak separuh masa. Tapi kontrak untuk perkhidmatan pula berbeza. Sebabnya, ia terpakai pada kontrak freelance. Kontrak ini akan menjadikan seseorang yang bebas itu bersetuju memberikan khidmat mereka kepada pelanggan, dan tidak akan dianggap sebagai pekerja. Jadinya, dalam isu ni – ia bergantung pada kontrak apa yang rider Foodpanda telah buat dengan syarikat mereka. Kalau ia kontrak perkhidmatan, mogok yang dibuat tu sah di sisi undang-undang. Tapi kalau ia kontrak untuk perkhidmatan, mereka mungkin dah langgar undang-undang, sebab mereka tak dilindungi oleh akta yang berkaitan. Dan kalau ada di antara korang yang sekarang ni pernah terfikir nak buat mogok terhadap syarikat korang. Ini dia garis panduan umum yang korang boleh buat untuk mogok… secara sah. 1. Bentuk kesatuan sekerja dulu sebelum mogok Mula-mula sekali korang mestilah kena ada kesatuan sekerja. Kesatuan ni pula hanya boleh mengisytiharkan mogok sekiranya 2/3 ahli bersetuju untuk buat mogok. Pengundian rahsia akan dibuat untuk mendapatkan persetujuan, dan keputusannya mesti dikemukakan kepada Ketua Pengarah (Kesatuan Sekerja) dalam masa 7 hari. Jadi, kalau cuma korang seorang je yang tak puas hati dengan syarikat, korang tak bolehlah buat mogok sorang-sorang. Mogok ditakrifkan dalam Akta Perhubungan Perusahaan 1967 sebagai (tiada terjemahan rasmi, diterjemahkan oleh Asklegal): “...berhenti dari melakukan kerja oleh badan pekerja yang bertindak dalam gabungan atau di bawah pemahaman yang sama… bertujuan untuk menyebabkan apa-apa batasan, sekatan, pengurangan atau pemberhentian dalam pelaksanaan untuk keseluruhan atau mana-mana bahagian tugas-tugas yang berkaitan dengan pekerjaan mereka...” Jadi, kalau korang dan rakan-rakan sekerja tak puas hati dengan sesuatu, korang boleh pilih untuk melakukan mogok terhadap syarikat dengan membentuk kesatuan sekerja. Kesatuan ini adalah ejen tawar menawar tunggal untuk menyelesaikan masalah antara majikan dan pekerja. Pendaftaran kesatuan perlu dilakukan dalam masa 1 bulan dari tarikh pembentukan kesatuan. Permohonan tu pula mesti dibuat oleh sekurang-kurangya 7 orang ahli dan yuran RM30.00 akan dikenakan. Ahli-ahli juga kena serahkan salinan peraturan kesatuan sekerja, salinan minit dari mesyuarat pertama dan butiran para ahli. 2. Dapatkan kebenaran untuk buat mogok Artikel 10, Perlembagaan Persekutuan menyatakan, semua warganegara mempunyai hak untuk membentuk persatuan. Jadi dalam kes ni, pekerja boleh membentuk kesatuan sekerja, yang merupakan sejenis persatuan. Bagaimanapun, kalau mogok dijalankan oleh pekerja yang bukan sebahagian dari kesatuan sekerja berdaftar, mogok tu dianggap salah di sisi undang-undang. Seksyen 25(A), Akta Kesatuan Sekerja 1959 menyatakan: “Tiada kesatuan sekerja orang-orang kerja boleh mengisytiharkan sesuatu mogok, dan tiada anggota darinya boleh mogok, dan tiada kesatuan sekerja majikan boleh mengisytiharkan suatu tutup-pintu… sebelum tamat tujuh hari setelah menghantar kepada Ketua Pengarah...” Selain itu, setiap kesatuan sekerja juga kena berdaftar dengan Ketua Pengarah Kesatuan Sekerja (DGTU), sebelum mengambil bahagian dalam mogok. Kalau mogok tu dianggap sebagai tidak sah, setiap ahli akan didenda sebanyak RM2,000 atau penjara tak lebih satu tahun, atau kedua-duanya. Seperti mana yang ada dalam Akta Kesatuan Sekerja. 3. Kena tahu juga beza antara piket dan mogok Sebelum korang dan rakan-rakan buat keputusan nak tunjukkan rasa tak puas hati pada syarikat secara terbuka, korang kena tahu dulu sama ada korang nak buat piket atau mogok. Piket: Satu langkah di bawah mogok Dilakukan selepas waktu bekerja, di luar tempat bekerja. Selalunya dilakukan untuk memujuk pekerja lain berhenti dari bekerja. Tak boleh dilakukan dengan cara menakutkan atau menghalang pintu masuk ke tempat kerja. Mogok: Biasanya dilakukan oleh anggota-anggota kesatuan sekerja berdaftar Dianggap tidak sah sekiranya pertikaian itu telah diletakkan di bawah siasatan. Tidak sah sekiranya tidak dilakukan oleh kesatuan sekerja berdaftar. Jika pertikaian bukan sebahagian dari syarikat, maka kesatuan hanya sekadar menyokong mogok lain. Kalau piket atau mogok didapati tak sah, denda dan penjara boleh dikenakan. Seksyen 40(3) dan Seksyen 46, Akta Perhubungan Perusahaan 1967 membawa denda sehingga RM1,000, dipenjarakan tidak lebih setahun atau kedua-duanya. Seterusnya, bila korang buat keputusan untuk sertai jenis protes macam ni, dah mesti ada peraturannya. 4. Tulis pada syarikat yang anda akan bercuti Undang-undang memperuntukkan korang untuk memohon cuti, bila ia berkaitan dengan mana-mana kerja yang melibatkan kesatuan sekerja. Seksyen 6, Akta Perhubungan Perusahaan menyatakan: “Pekerja yang berhasrat menjalankan tugasnya… sebagai pegawai kesatuan sekerja hendaklah memohon secara bertulis kepada majikan untuk bercuti… yang menyatakan tempoh dan tujuan… cuti dipohon dan majikan hendaklah memberikan permohonan untuk cuti… semunasabahnya diperlukan untuk tujuan yang dinyatakan dalam permohonan itu...” Maknanya, walaupun korang ada pertikaian dengan syarikat, korang masih kena maklumkan kepada mereka kalau korang perlu bercuti dari bekerja. Ia mungkin nampak macam tak munasabah, tapi ia lebih baik dari dipecat sebab ambil cuti tanpa alasan yang kukuh. Walaupun undang-undang ni tak begitu terpakai untuk mogok, tapi kebanyakannya ia akan digunakan dalam perbicaraan kes di Mahkamah Perusahaan. Jadi, korang kena fikirkan juga akibat yang akan berlaku selepas mogok. Oleh itu, mohonlah cuti kalau korang kena mewakili kesatuan sekerja. Syarikat pula kenalah bagi pekerja mereka cuti bila ia melibatkan kesatuan sekerja. 5. Korang tak boleh dipecat sebab terlibat dalam mogok yang sah Selagi korang belum letak jawatan atas kerelaan sendiri, syarikat tak boleh pecat korang sebab terlibat dalam mogok yang sah. Kalau korang buat mogok dengan kebenaran dari Ketua Pengarah, ia dianggap sah di sisi undang-undang. Seksyen 10(2), Akta Perhubungan Perusahaan 1967 menyatakan: “Tiada majikan yang boleh mengisytiharkan tutup-pintu atau menamatkan perkhidmatan pekerja setelah kesatuan sekerja pekerja telah berkhidmat kepada majikan atau kesatuan sekerja majikan yang majikan tergolong...” Dengan kata lain, syarikat korang tak boleh pecat korang sebab menyertai mogok. Undang-undang kemudiannya menyatakan, syarikat tak boleh menutup tempat kerja atau menggantung pekerja yang mengambil bahagian dalam mogok sah. Jadi, kalau korang tersepit antara memperjuangkan hak korang dan kehilangan kerja, korang kena pastikan dulu sama ada mogok yang dijalankan tu sah atau tak. Kalau anda dipecat sebab sertai mogok sah, anda boleh saman syarikat Kalau korang dipecat oleh syarikat sebab terlibat dalam kesatuan berdaftar – korang boleh bawa hal itu ke mahkamah. [BACA LAGI: My boss just fired me for no reason, what can I do now?] Oleh itu, mana-mana pekerja yang merasakan diri mereka dipecat secara tak adil, mereka boleh minta kerja mereka dikembalikan. Seksyen 20(3), Akta Perhubungan Perusahaan 1967 menyatakan: “Di mana pekerja… menganggap bahawa dia telah diberhentikan tanpa sebab dan alasan oleh majikannya, dia boleh membuat perwakilan secara bertulis kepada Ketua Pengarah untuk dipulihkan bekas pekerjaannya...” Korang boleh memfailkan kes dengan Ketua Pengarah Mahkamah Perusahaan, dalam tempoh 60 hari pemecatan untuk mencabar pemecatan tersebut. Kalau mahkamah mendapati korang telah dipecat secara tak adil, korang akan menerima faedah-faedah tertentu. Selagi mana kesatuan sekerja tu berdaftar dan ada kebenaran dari Ketua Pengarah, tak ada banyak benda yang syarikat boleh buat untuk halang korang dari terlibat dalam mogok."
"Is it a crime to tailgate someone at the toll in Malaysia? We know all of you have been complaining about the latest social faux pas to hit our shores: the toll tailgaters. Naturally, we have to jump on the bandwagon as well. Now, when you’re watching videos of such tailgaters or perhaps, if you’ve had the misfortune of having one of them tail you, the first question that pops through your mind is: isn’t it illegal for them to do this? This question is of course followed by a stream of words that we can’t publish before the next question comes in – so be it if he doesn’t pay the toll, but what happens if he hits my car? [READ MORE: If you get into an accident with a police car in Malaysia, are you automatically wrong?] But first, let’s deal with what happens if he hits you, because we all know what you’re thinking about: if you get hit from the back, it’s automatically their fault. Well… It’s not automatically their fault if they hit you from the back This might be surprising, but old time readers of Asklegal may vaguely recall that we’ve debunked this legal myth wayyyy back in 2017. The starting point is this: Section 22 of the Malaysian Highway Code states that it is your fault if you collide with the car in front of you because you failed to maintain a distance of at least one car space at all times. The Act says something like this: “If you collide with the rear of a vehicle in front, it is your fault, because it means you have been following it too closely. Allow at least one cars length between you and the vehicle in front for every 10 mph (~15 kmh) of your speed for reaction and stopping time...” However, this is not conclusive proof of fault in all cases. It’s just a presumption that the law makes. If you don’t think it’s your fault you collided with the car in front because he braked suddenly, was driving recklessly, or any other factors that caused it, you must provide the evidence to the police while they are carrying out their investigations. From this, the judge will then decide who is liable in that particular accident: It can either be 100% your fault or the court can apportion liability. This means that the judge would decide that both parties in the crash were negligent, and will then split the liability on any percentage he sees fit: If you get 70% liability, the other party will be 30% liable. If you’re both at fault, the liability will be apportioned equally or 50% to each party. So for instance, it would mean that you would pay 70% of the damages while the other guy you hit would pay for 30% if the judge decides on negligence. [READ MORE: If you hit a car from behind in Malaysia, is it automatically your fault?] But in the toll gate scenario we would agree that in most circumstances, liability would be clear cut — the guy tailgating you and skipping the toll would be 100% at fault. However, if you choose to brake and “teach him a lesson” (we know some of you thought of it), then it may actually be partly your cross to bear. In other words, if you try to be Batman and impose vigilante justice, you might end up paying for it yourself. The best things to do in such situations is to focus on your own safety, note down the perpetrator’s car model and plate number, and report him to the police. After all, if you slam on your brakes, you never know if he would just commit a hit and run and then you would truly be wallowing in your vigilantism (and debt). Now, on to the meat of the matter: is skipping out on tolls illegal? It’s a big resounding...no-yes Here’s the thing: it’s not illegal for the way you think it is—i.e the failure to pay, but it is illegal for a whole host of other things. [READ MORE: 5 things you can claim if you get into a traffic accident in Malaysia] First and foremost, the Road Traffic Act 1987 makes it an offence for anyone to drive in a reckless and dangerous or careless and inconsiderate manner under Sections 42 and 43 respectively. If you’re a first time offender, you can be jailed for up to five years and/or pay up to RM15,000 in fines. It wouldn’t be that far of a leap to see how driving like a demon at tolls can be construed as driving in a reckless manner that disregards other road users. There is also a similar provision under Section 279 of the Penal Code, where rash driving that could likely cause harm to others is a criminal offence, that is punishable with up to six months in jail and/or up to a RM2,000 fine. Further to that, such drivers may even be considered as a public nuisance under Section 268 of the Penal Code. But it’s not a given that the offender will be punished under all three. The choice of what laws such drivers would be caught and punished under is a discretion that belongs to the Public Prosecutor. To find out more on what a Public Prosecutor does, click here. The moral of the story here is… Don’t be that guy We know that paying for tolls can take a hefty portion out of your monthly budget, but driving in a reckless manner is not the way to cut costs. Aside from rear ending someone and paying for the damage there, you could be charged for a multitude of offences. To add salt to that wound, imagine if you hit the toll gate instead; we cringe to think of the thousands you would have to fork out to then. If you are on the other end of the spectrum and want to guard against drivers like these, the only advice we can give you is to always be aware of your surroundings when driving. The often overlooked mirror when driving is the rearview and it would do you good to intermittently check it. Aside from that, invest in a dashcam and try to mark down the plates of such drivers so that the authorities can take the necessary action."
"If your abang mechanic does extra repairs without telling you, must you pay them? So let’s just say it’s time for your car’s routine service. You rock up to your usual workshop, tell them what needs to be done, then take off to run errands for the day, while your car gets serviced. But halfway through, you get a call saying that they’ve found another issue with your car. They quote you a price, say an extra RM500 for the additional parts and labour. However, it’s also mid of the month and you’re a bit short on cash. So you tell them not to do the additional repairs, and you’ll settle for what was discussed. Everything seems to be going as planned until you return to the workshop to pick your car up and... That’s when the bomb is dropped on you: The mechanics have gone and done exactly the opposite of what you wanted, and replaced the extra bits and bobs. Now, you’re stuck with a heftier invoice and a lot of frustration. You start to reason with them but to no avail because the work has already been carried out. Worse, they have your car keys and they won’t give it back to you until you pay them. Unfortunately, it’s not the first time a workshop has pulled off this stunt towards an unsuspecting customer. According to the Tribunal for Consumer Claims Malaysia (TPPM), a total of 85 cases of fraud by car workshop operators totaling RM446,262.28 were recorded in 2016. There’s even a case where a motorcyclist had his signature forged by mechanics in order to claim more compensation for spare parts from the insurance agency. How now, brown cow? But fret not because... The workshop is already in the wrong for this To be more precise, the workshop has breached Section 9(b) of the Consumer Protection Act 1999 which states that: “No person shall engage in conduct that in relation to services, is misleading or deceptive...(to) the public as to the nature...or quantity, of the services.” By not informing you (or even asking for your permission) what they’ve replaced on your car beforehand, the workshop has basically forced your hand into paying for parts and labour that is completely unwarranted. A double whammy for them is also the fact that they've violated another section of the same Act. Specifically, Section 12(1)(b) which states that: “A person commits an offence if an indication given by him to a consumer as to the price at which any goods or services are available becomes misleading and he fails to take reasonable steps to prevent the consumer from relying on the indication.” Trouble is, remember that they still hold your car keys and won’t give them back to you until you’ve paid up. So what do you do next? Now, before you go calling up a lawyer and threatening to sue them, just remember that it’s probably gonna cost you even more time and money to go down that route. We’re no experts on cars here but we reckon that the repair bill, as expensive as it is, is unlikely to breach RM25,000, right? That being the case, here are options on what you can do: Option one: Call the police. By doing this, you could spook the folks at the workshop and they might be willing to settle matters there and then. Otherwise, it’s not the most practical thing to do since it’s unlikely the police will be able to deal with it comprehensively—this is because it’s more of a contractual matter between you and the workshop, instead of a criminal matter. Option two: Pay them Pay them up in full, but keep the receipt and approach The Tribunal for Consumer Claims (TPPM). But by doing this, there’s always the chance that the court can rule in favour of the workshop. This is because the act of paying up could well mean the act of acquiescence—which means reluctantly accepting without protest. But there’s one more option you could go for, which is to... Leave your car at the workshop and lodge a claim with TPPM If you're unsure of what the TPPM does, here's a detailed article we wrote earlier on describing what is it exactly that they do and how they've come to help numerous consumers obtain their claims from unethical service providers. In short, the tribunal (TTPM) was established as an independent body under the Consumer Protection Act 1999 to hear and determine claims filed by consumers under said Act. In short, they’re kinda like a consumer’s court. So, how exactly do you make a claim? You can start by filling up Form 1 which can be obtained (for free) from the Tribunal’s office/branches or online via the e-Tribunal portal. A small fee of RM5 is chargeable upon filing. Once they’ve processed the application, the Form 1 “is then to be served, by the claimant on the trader.” Serving someone means sending them the document, to notify them of your complaint. Following that, a date for the hearing will be set by the Tribunal. At this point, the workshop may decide to settle matters with you personally. If not, they’ll have to fill up Form 2 and serve it back to you to take things to the next level: In court. During the hearing, no lawyers are to be present with only the Tribunal hearing and assisting both parties. Once the hearing is concluded, claims may still be settled amicably between both parties. If the court rules in favour of you, rest assured that you’ll receive the fair amount of claims as it sees fit. However, claims have also been dismissed so don’t go thinking that this is a way to get your claims back 100%. Last but not least, if the claim has been awarded in your favour and the workshop insists on NOT following through, well, that’s a criminal offence right there – but that's a whole other topic for a different day. At the end of the day, ALWAYS ask for a quote Sometimes, we don’t get to decide which workshop we want to visit. For instance, if your car breaks down in a different state, you have no choice but to go to the nearest workshop. If it's managed by trustworthy people, all the better. But if you suspect it's not, ALWAYS ask for a quote, and be very firm with what you want done to your car. To be fair, most workshops can’t give a proper quote until they’ve had a proper look at the car so just communicate clearly at all times. There’s also the possibility that all this boils down to a genuine misunderstanding. Should that be the case, try to negotiate with them and talk things through. Who knows? You might get a nice discount on the next oil change or set of tyres ;)"
"How two women on death row changed Malaysia's drug law When Alma Nudo Atenza, a then 38-year-old Filipino woman, was apprehended by the customs officer in the early hours of 19 August 2014 at KLIA, she must have thought this was the end for her. When her luggage was scanned at customs, the officer noticed something suspicious. They investigated and found that it contained nine handbags, each filled with four clear plastic packages hidden inside the back cover. Inside the packages, 36 in total, contained 2kg of methamphetamine. A month earlier, a Thai woman, was also apprehended. Then 22-year-old Orathai Prommatat was caught at Hotel Arena Star Luxury in Jalan Hang Lekiu, with 693 grams of cocaine hidden in the inside wall of her luggage bag. Both women were found guilty of possession and drug trafficking, and were sentenced to death. Both were charged under Section 37A of the Dangerous Drugs Act 1952, dubbed the ‘double presumption’. And both women would share the same appeal hearing 5 years later, where Section 37A was deemed unconstitutional, sparing them the death sentence. How the rule of double presumption functions We tend to assume that we are always innocent of a crime until proven guilty. Not so with drugs. If you’re caught with drugs and it has been proven in court, you’re presumed to be guilty unless you could prove otherwise. There are three sections of the law in play here for their conviction, and all three are based on presumption. Presumption is a legal construct that allows the court to presume certain facts, if it’s supported by other facts. For drugs, under Section 37(d) of the Dangerous Drugs Act, they only have to prove that you were in physical custody and in control of the bag. That will allow them to presume that you had knowledge of the drugs, which means you are in possession of it. For drug trafficking, presumption is based on the weight of the drugs. Under Section 37(da), if it’s above a certain weight, it’s presumed that you intend to traffic it. So for example if you have 2.5kg of cocaine and it was proven that you were found with it, that must mean you were aware of carrying it and that you wanted to traffic it. Under Section 37A, it is stated that: “Notwithstanding anything under any written law or rule of law, a presumption may be applied under this Part in addition to or in conjunction with any other presumption provided under this Part or any other written law.” As mentioned before, this double presumption allows the court to invoke the presumption of possession and trafficking of drugs to convict an accused. [Read more: It's not just the death penalty. 5 MORE things you need to know about Malaysia's drug laws] But things didn’t use to be that way. You can’t just apply double presumptions in drug cases. For a couple of years, at least. The case that pushed Parliament to create Section 37A Back in 1998, there was another case involving double presumptions, which prompted Section 37A to be created. In Muhammed bin Hassan v Public Prosecutor (1998), the accused was convicted of drug possession and trafficking in the High Court, under Section 39B of the Dangerous Drug Act 1952 by way of a double presumption under Section 37(d) and Section 37(da). He appealed all the way to the Federal Court. There, the judges decide that it was actually harsh and oppressive to automatically presume trafficking upon the presumption of possession. This was because of the difference in these two words: “deemed” under Section 37(d) and “found” under Section 37(da). Section 37(d) states that: “any person who is found to have...in his custody...any dangerous drug...until the contrary is proved, be deemed to have been in possession of such drug and... be deemed to have known the nature of such drug.” Whereas Section 37(da) states that: “any person who is found in possession of (drugs)...until the contrary is proved, to be trafficking in the said drug.” See the difference? One says deemed, one says found. It was due to this difference that the Federal Court went on to say that: The 'deemed' state of affairs in s 37(d) (ie deemed possession and deemed knowledge) is by operation of law and there is no necessity to prove how that particular state of affairs is arrived at. There need only to be established the basic or primary facts necessary to give rise to that state of affairs, ie the finding of custody or control…. On the other hand, the word 'found' in the opening phrase of s 37(da) connotes a finding after a trial by the court. This is a very simplified explanation of the meaning. For deemed, only basic facts are needed to presume that you were in possession of the drugs. Eg. you were caught holding 1kg of drugs. Hence, you are deemed to be in possession of it. For found, this basically requires a little bit more work. They can’t just catch you holding the drugs. It means the judge will have to go through every single evidence, and after going through a trial and are positive it’s yours, only then can you be found in possession of drugs. And that will allow them to presume you intend to traffic as well. But parliament had other ideas. After that case, there was difficulty in getting convictions of drug traffickers. This did not sit well in parliament. They decided to insert section 37A into the Dangerous Drugs Act 1952 to overrule the decision by the Federal Court in Muhammad Hassan v PP. This then allowed for double presumptions to be used and essentially said presumption of possession under Section 37(d) equals to presumption of trafficking under Section 37(da). After that, almost every case was read in that way. Presumption of carrying, equals presumption of trafficking, if it's beyond the right amount. This is how Alma Nudo and Orathai were convicted for their sentences. The authorities found that they had drugs, that the drugs were over the limit, and that means they wanted to traffic the drugs. Clear as day according to Section 37A. A matter of firsts and lasts, beginnings and ends Historical events demand larger than life characters. Enter Gopal Sri Ram. The first lawyer from a private firm to be appointed to the Court of Appeal, when everyone had to go through the ranks and serve at each level. He was retired but went back into private practice and is currently a defense lawyer. The defense lawyer, for Alma Nudo and Orathai. The people to convince were the bench of nine Federal Court judges including the Chief Justice, Richard Malanjum, a story maker, whose dissenting opinions is sometimes cited more than the judgement in his cases. This is his last case before retiring at the end of a 27 year career. Their two main grounds of appeal: Section 37A contravened the principle of separation of powers in the Federal Constitution Section 37A violated Articles 5 and 8 of the Federal Constitution First ground of appeal: Section 37A contravened the principle of separation of powers in the Federal Constitution Sri Ram argued that since the decision in Muhammad Hassan v PP had already declared that it was harsh and oppressive to be using the double presumption rule for Section 37(d) and Section 37(da), Parliament could not overstep their powers to interfere with the court’s decision and insert Section 37A into the DDA just to overrule the judges’ decision. Second ground of appeal: Section 37A violated Articles 5 and 8 of the Federal Constitution The second argument was that Section 37A actually violates Articles 5 and 8 of the Federal Constitution. Article 5 guarantees a person his right to life and personal liberty whereas Article 8 provides that all persons are equal before the law and entitled to the equal protection of the law. The argument was that while whoever is accused of a crime should be presumed innocent until proven guilty, Section 37A actually had an effect of reversing that rule where the burden is put on the accused to prove his or her innocence after being presumed guilty of possession AND trafficking drugs. The decision that changed future drug cases On the next day, the nine decided. Richard Malanjum, chief judge, read the decision. They went through the grounds of appeal and it was a unanimous decision. For the first ground of appeal, the Federal Court rejected the non separation of powers argument and held that the insertion of Section 37A into the DDA 1952 wasn’t to overrule the decision in Mohammad Hassan as it did not affect the outcome of that case. Parliament’s aim was only to generally alter the law AFTER that case based on that decision. So the court felt they were within their powers of altering the law and not overstepping the judicial powers. For the second ground of appeal however, the court actually agreed with the argument that Section 37A was in fact in violation of Articles 5 and 8 of the Federal Constitution. The judges decided that Section 37A, that convicted both Alma Nudo and Orathai Prommatat of drug trafficking, by virtue of possessing drugs, as unconstitutional. The gavel drops: Alma Nudo and Orathai are not guilty of trafficking; the death penalty is overturned. They are not dead women walking anymore. However, since they didn’t challenge their conviction of possessing the drugs, the two women are now just guilty of drug possession. The decision made headlines. While Parliament has not made any official changes to the DDA 1952 regarding Section 37A, this section may now be seen as a section that is unconstitutional in future cases from the decision in this case. Still, Alma Nudo and Orathai Prommatat aren’t free women. Alma still has to serve 18 years in prison and Orathai to serve 15 for possessing drugs. But the threat of the noose isn't hanging over them anymore. But unlike Orathai, by the luck of case name, Alma Nudo will live on in Malaysian courts, whether rightfully or wrongfully, in fame and infamy, as the case cited by future lawyers—the case of Alma Nudo Atenza vs Public Prosecutor, the precedent to interpret Section 37A of the Dangerous Drug Act 1952, which was in violation of Article 5(a) and 8 of the Malaysian constitution: the right to life and liberty; that we are all equal under the law, and we are all equally protected under the law. This article is cowritten by Tanusha and Ariff."
"Why could this green chop cost you thousands of ringgit? When buying or renting property, you’d probably notice that the agreement itself comes with a few extra fees. Some fees are large, some are small, but as long as the deal gets done, you probably won’t think too much about it. Pay what you have to pay. But for those renting, whether you’re the landlord or the renter, you’ll probably notice there is a green chop in the agreement. It could be as cheap as RM10, but depending on your monthly rent, you could pay nearly RM1,000. But then, why would getting such a small chop on your document cost so much? That little green chop is actually a necessary part for property agreements, and it’s called a stamp duty. Stamp duty is a tax duty that’s imposed on documents that have a legal, commercial and financial effect. This would cover things such as tenancy agreements and land titles, and even insurance policies. It’s sort of like paying income tax for income, but now you’re paying tax for an agreement. LHDN aka the Inland Revenue Board of Malaysia is the government agency that collects stamp duties. The stamp will be given after you made your payment as a verification. In short, you are paying tax to the government and verifying your contract at the same time. Why is stamping your contract important? The purpose of stamping your contract is to provide protection to the people who signed the agreement, as the document is now admissible for the court in case of a dispute. For example, your landlord wants to chase you out from the house after two months of renting his house. But, in the agreement, it stated that you can stay in the house for 2 years. You bring this matter to the court to settle your dispute. Now, whether your agreement is stamped or not makes a huge difference. With a stamp, it is safe to say your agreement can be used as evidence in court. Without a stamp, your contract cannot be submitted to the court as evidence. As per Section 52(1) of Stamp Act 1949: No chargeable instrument chargeable with duty shall be admitted in evidence...unless such instrument is duly stamped. So, if you didn't pay stamp duty for your tenancy agreement, you can't use your agreement as evidence in the court to protect yourself. But even if your agreement does not have a stamp, does not mean it’s invalid. You could still submit it to the court, but you now have to get it stamped, AND pay a slight penalty for not getting it done beforehand. Once that’s done, your document will now accepted as evidence. As per Section 53(1) of Stamp Duty 1949: When the person impounding an instrument under section 51 has by law or consent of parties authority to receive evidence and admits such instrument in evidence on payment of duty and penalty, if any, he shall, as soon as may be convenient, send such instrument, together with the amount of the duty and penalty, if any, paid in respect thereof, to the Collector… So, the judge will not set aside your case, he will suggest you pay your stamp duty together with the penalty to LHDN first then return to the court to continue your case. How much is the penalty? As per Section 47 of Stamp Act 1949: Save where other express provision is made by this or any other Act, any unstamped or insufficiently stamped instrument not being a cheque or promissory note drawn or made within Malaysia may be stamped after execution on payment of the unpaid duty if the instrument is presented for stamping within thirty days of its execution if executed within Malaysia, or within thirty days after… In short, a penalty will be charged to you if you did not stamp your agreement within 30 days after your agreement is signed. The penalty is stated in Section 47A Stamp Act 1949: (a) RM25.00 or 5% of the deficient duty, whichever is greater, if stamped within 3 months after the time for stamping; (b) RM50.00 or 10% of the deficient duty, whichever is greater, if stamped after 3 months but not later than 6 months after the time for stamping; (c) RM100.00 or 20% of the deficient duty, whichever is greater, if stamped after 6 months from the time for stamping; maybe imposed. For example, let’s say you signed your tenancy agreement on 1 July. Two months later, you have a dispute with your landlord on 5 September. You’ve already went pass the stamping period, which is 30 days. This means that you fall into category (a), which requires you to pay the original duty of RM10, plus a penalty of 5% of the original fee, or RM25, whichever is higher. Obviously, RM25 is higher, so in total, you would have to pay RM35. If this is confusing for you, don’t worry. Just bring your documents to LHDN, and they’ll assist you in figuring out the penalty. The longer you rent the house, you more you need to pay. If you have an agent who was dealing with your tenancy agreement, the agent will help you with this matter and save you the hassle from going to the LHDN do it by yourself. However, if you have no agent and you were dealing directly with the landlord, you might have to visit the office yourself. Depending on how long you’re renting the house as well as the monthly fees, the stamp duty fee would be different. For example, if you live in a luxury condo with a monthly rent of RM10,000, a 2 year tenancy agreement could cost you almost RM1,000. But you don't have to do the calculation yourself; the calculation is complicated. Bring along your tenancy agreement when going to the office and fill up some forms, the officer will assist you during the process. And there are many ways to pay for it. Besides cash at the LHDN office, you could: get revenue stamps from the post office (if the duty does not exceed RM500) money order and postal order solicitor’s cheque or bank draft Internet banking via STAMPS And you can even do the application process online first. LHDN has an upgraded system which is known as the Digital Franking Systems. After filling up your information online, you’ll be given a QR code. So when you go to an LHDN office, just bring your tenancy agreement and show the officer your QR code. Then the officer will give you a green stamp on your tenancy agreement using your information that’s stored online. Sample 1 is issued from using the new Digital Franking System, that is replacing the red stamp in Sample 2 starting from 2011. After all... Stamping is not that complicated After you’ve made your payment, there would be different forms of stamping issued by the LHDN. Getting a chop on your document isn’t the only way. The most common stamps are official stamp receipt or stamp certificate, which are issued electronically when the stamping application is done online via STAMPS. But do note that you have to attach a printed copy of the stamp certificate with your tenancy agreement as proof, to be able to submit it the court as evidence. Another form of the stamping is the Impressed stamp through the use of Digital Franking Machine as shown above in Sample 1 (basically, they just chop your documents). Lastly is the revenue stamp, which you could get from the post office, and is blue in colour. In short, make sure you pay your stamp duty on time to safeguard your rights. In case of confusion, you can always make a call to LHDN, and they are happy to assist you."
"By Oct 12, there may be even LESS e-hailing drivers in Malaysia due to extra govt requirements When the government first announced the PSV (Public Service Vehicle) regulations for the e-hailing industry (ie, your MyCars, Mulas, and Grabs) back in July 2018, it seemed to provide a solution to the legal status of e-hailing in Malaysia. In short, e-hailing would go from grey-area-and-possibly-illegal to 100% legal, as long as certain requirements were met. However, the news that followed was somewhat less than positive. You can skip to the next point if you’re already familiar with the backstory. For one thing, drivers and companies had only 3 months to complete the process, which involved a medical checkup, car inspection, training, and a written test. While it sounds like a pretty simple process on paper, the PSV process ran into some problems in relation to language barriers, cost, and long wait times for the training and exams – you can check out our previous articles for details: [READ MORE: 5 things e-hailing customers need to know about Malaysia's new e-hailing law] [READ MORE: We went undercover to get an e-hailing (PSV) license. Here's what we found out] All these factors led to estimations that 40% to 50% of e-hailing drivers may drop off from the market by the time the July 12th deadline hit, which would result in longer waiting times and (presumably) higher fares for customers. Then, the Transport Ministry extended the deadline to October 12th. But even with the extended deadline, most e-hailing companies still expected a drop in drivers. Grab for example, is providing regular updates on Grab drivers who have PSV certification… which currently stands at 38% or 57,000 drivers nation-wide. As other drivers move through the stages, it seemed that 78% of drivers (from Grab anyway) would be back in business in the weeks or months after the October 12 deadline. While this number is comforting, a very recent development may result a drop in numbers even higher than the 50% originally predicted. Because on October 4th, the authorities dropped a bombshell On October 4th – 8 days before the deadline – or 5 days if you exclude weekends – the Land Public Transport Agency (APAD) released a circular that listed down resolutions (official decisions or guidelines) on how PSV regulations should be followed and enforced. The circular also mentions that any company or driver that fails to follow these conditions risk getting their operating licence / eVP license suspended or revoked, fined, or have their vehicle confiscated. But according to the Malaysian e-Hailing Drivers Association (MeHDA), two ‘new’ requirements were introduced during the meeting between APAD, JPJ, and e-hailing operators, before the circular was released: Drivers are now required to have physical copies of the eVP Drivers need to change their vehicle category from individual private vehicle to e-hailing private vehicle So hang on… everyone’s been talking about PSV, but what’s eVP? Drivers must carry a PRINTED copy of their eVP with them eVP stands for e-hailing Vehicle Permit, and is pretty much the license that e-hailing drivers need in order to continue driving for their respective companies; kind of like how you need a driver’s license to drive a car. However, unlike your driver’s license, there was indication that the eVP would be a ‘digital license’ that would be incorporated into the driver’s app. Here’s a screenshot from Grab’s eVP help page: And here’s a screenshot from Mula’s help page: One thing to note is that eVPs are tied to the company you’re driving for. This means that if you drive for 3 different e-hailing companies; you will need to have 3 separate eVPs and show the eVP for the company that you’re currently driving for during an inspection. For now, it seems unclear if drivers would need to pick up their physical eVPs from their respective e-hailing compan(ies), as MeHDA mentions that “drivers will have problems picking up copies from their respective companies in such short notice”. However, Grab has recently posted instructions on how drivers can print out their own copies. UPDATE Oct 9th 2019: Transport Minister Anthony Loke has now clarified that it’s not compulsory for e-hailing drivers to print out their eVP: Anthony Loke stated that the eVP information is already in the MySIKAP system, which is a platform by JPJ that allows people to make online transactions involving vehicle and driver licensing. ""Printing it out is only for reference purposes. Their eVP number is already in the MySIKAP system. Drivers need not worry if they do not have the print-outs with them during the enforcement period."" – Anthony Loke, as quoted by The Star Online. So if you’re an e-hailing driver, it’s advisable but not required to have a printout based on the clarifications made by the Ministry of Transport. Drivers will need to change their vehicle category If you look at your car registration card, there’s a category for usage class (kelas kegunaan) which indicates what the vehicle is used for – this is usually Individual Private Vehicle (Persendirian) if it’s your personal car. When the initial plans for PSV registration was first announced, one of the requirements to get a permit was for all e-hailing drivers to change their usage class from Individual Personal Vehicle to e-Hailing Private Vehicle (AH). However, on May 7th, Transport Minister Anthony Loke reversed this requirement. “I have talked to the JPJ, and we have agreed to do away with this requirement. This means e-hailing drivers can still keep their vehicles as individual private cars.” – Anthony Loke, as quoted by The Star Online. And now it’s been re-reversed, so the (current) final word on the matter is that drivers MUST change their vehicle category to e-Hailing Private Vehicle in order to continue operating. The obvious downside to this new rule is that drivers will now have to go to JPJ, which will take up additional time and effort considering the short notice. Another possible downside is that these cars may fetch a lower value in the second-hand car market as they may be seen as commercial vehicles. We have reached out to JPJ and MeHDA for additional information on this (along with questions on whether road tax rates will be different), but have yet to receive a reply. A category change can only be done by bringing copies of the printed eVP, PSV license, car grant, and insurance to JPJ; and filling out the EH1 and K8 forms. UPDATE Oct 9th 2019: Drivers don’t need to change their vehicle category at JPJ Anthony Loke made two clarifications on this issue. The first is that e-hailing drivers won’t need to go to JPJ to change their vehicle category as the eVP information stored by APAD will automatically convert the code to AH (e-Hailing Private Vehicle) in MySIKAP. “[There] is no need for drivers or car owners to go to JPJ to make any changes, because the e-hailing vehicle permit information stored by the Land Public Transport Agency will automatically convert the code to AH in MySIKAP."" – Anthony Loke, as quoted by The Star. The second is that this AH code is for internal JPJ use so that personnel will know that the car is registered as an e-hailing vehicle when they check MySIKAP. This means that your car grant will still list it as a private vehicle instead of a commercial vehicle. ""The AH code is created only for JPJ administrative purposes and will be reflected in their MySIKAP records to state that the vehicle is used for e-hailing purposes.” – Anthony Loke, as quoted by The Star However, the fact still remains that... TL;DR – You will likely need to wait longer for your ride It would be quite obvious by now that drivers are quite literally the….driving….force behind the e-hailing industry. Although the clarifications from Anthony Loke may have lightened the situation, it will likely still take a while for a majority of drivers to get their eVPs. This means that, for the time being, you’ll likely have to wait longer or pay more to get a ride – especially during peak hours – or try your luck with multiple e-hailing apps in the hopes of getting the fastest/cheapest ride. According to the circular, there are 41 e-hailing companies currently operating in Malaysia. However, it’s also a fact that the PSV is necessary to ensure that you’ll be able to call for or provide rides in the future. Ride-sharing or e-hailing has been a legal sticky point for governments around the world. While some countries have passed laws to make this business illegal, Malaysia has gone the other way and passed laws to make it, well, legal. The changes made to the Land Public Transport Act has removed any ambiguity about the legality of e-hailing in the sense that getting into an e-hailing car is just as legal as stepping onto a bus. Not just that, other regulations put in place mean that you’re promised a minimum standard of service and safety whenever you step into one. So despite how the parties involved are trying to make the process as smooth as possible, the teething pains of introducing and enforcing new regulations will eventually trickle down past the laws and companies, and onto drivers and consumers. ""We are aware of the confusion it had caused, and I would like to apologise to the e-hailing drivers who had troubled themselves to go to JPJ offices [...]” – Anthony Loke, as quoted by The Star. We’ll only see the actual effects of PSV regulations on October 12th, but let’s hope that, just like teething pains, the discomfort is only a temporary stage before the e-hailing industry comes back with more bite."
"Boleh ke majikan pecat pekerja yang masih dalam tempoh percubaan? [Click here for English version] Bila anda mula bekerja di syarikat baru, biasanya anda akan lalui tempoh percubaan. Selalunya, tempoh ni di antara 3 hingga 12 bulan. Dalam tempoh percubaan ini, majikan anda boleh tengok sama ada anda sesuai atau tak. Dalam masa sama, anda boleh putuskan sama ada anda ingin terus bekerja dengan syarikat anda atau tak. Mungkin sebahagian daripada kita terfikir yang pekerjaan kita tu dijamin masa tempoh percubaan. Paling buruk pun, syarikat mungkin buat keputusan untuk tak ambil anda bekerja tetap lepas tempoh percubaan tamat. Tapi persoalannya: macam mana kalau anda dipecat sebelum tempoh percubaan anda tamat? Lebih teruk lagi, syarikat tak bagi apa-apa alasan tentang pemecatan tu dan anda sendiri pula yakin yang anda tak buat apa-apa kesalahan. Apa yang anda boleh buat kalau berdepan dengan keadaan macam ni? Sebelum kami jawab soalan tu, jom kita fahamkan dulu apa itu “tempoh percubaan”. Tempoh percubaan adalah untuk syarikat tentukan sama ada anda sesuai dengan mereka Sebenarnya tak ada undang-undang yang mentakrifkan apa itu pekerja percubaan, tapi secara umumnya – mereka ini adalah pekerja baru yang bekerja untuk tempoh tertentu, supaya syarikat dapat kenal pasti sama ada mereka ini sesuai atau tak untuk jadi pekerja tetap. Panjang tempoh percubaan ni bergantung sepenuhnya dengan kontrak pekerjaan. Tapi biasanya, tempoh tu dalam jangka masa 3 bulan ke 12 bulan. Ini contoh terma percubaan dalam kontrak kerja: ""Anda akan menjalani tempoh percubaan selama enam (6) bulan, dan pengesahan status tetap anda sebagai pekerja selepas tempoh yang disebutkan adalah bergantung kepada perkhidmatan yang memuaskan dari pekerjaan yang telah diberikan kepada anda"" Jadi, berdasarkan contoh di atas, anda akan jalani tempoh percubaan selama 6 bulan, yang mana dengan kata lain, anda dah pasti ada kerja dalam tempoh 6 bulan tu. Menurut Pusat Sumber Manusia Kebangsaan, selepas tempoh 6 bulan tamat, syarikat boleh sama ada: Mengesahkan anda, bermakna melantik anda sebagai pekerja tetap Melanjutkan tempoh percubaan anda, sebab mereka masih lagi perlukan masa untuk menilai sama ada anda sesuai atau tak untuk jadi pekerja tetap Tamatkan perkhidmatan anda, sebab mereka tak rasa yang anda sesuai untuk syarikat Jadinya sekarang, kita kembali pada soalan asal tadi: Boleh ke syarikat pecat anda sebelum tempoh percubaan tamat? Pekerja percubaan tak boleh dipecat tanpa alasan munasabah Bila bercakap soal pemecatan atau penamatan perkhidmatan, pekerja percubaan dan pekerja tetap ada hak yang sama. Dalam kes Mak Teck Mun v Ginova Marketing Sdn Bhd, seorang lelaki bernama Mak dah diambil bekerja oleh Ginova Sdn Bhd sebagai pekerja percubaan. Malangnya, dia dah dipecat sebelum tempoh percubaannya tamat. Dia kemudiannya ambil tindakan terhadap syarikat itu di mahkamah. Di akhir kes berkenaan, Mak diputuskan menang dan mahkamah menganugerahkannya pampasan untuk gaji yang sepatutnya dia dapat kalau dia tak dipecat. Menurut mahkamah, sebab kenapa Mak menang adalah: ""... pelantikan dalam tempoh percubaan selama enam bulan tidak memberi majikan hak untuk menamatkan perkhidmatan seseorang pekerja sebelum tempoh enam bulan tamat kecuali atas alasan salah laku atau alasan lain yang mencukupi, yang dalam hal itu juga perkhidmatan pekerja tetap boleh ditamatkan. Selepas tamat tempoh enam bulan, majikan boleh sama ada mengesahkan atau menamatkan perkhidmatannya, kerana perkhidmatannya didapati tidak memuaskan."" Dalam terma mudah, Mak di sini ada hak yang sama dengan pekerja tetap lain dalam syarikat dan dia tak boleh dipecat sebelum tempoh 6 bulan tamat, tanpa sebab munasabah. Tambahan lagi, mahkamah juga ada kata yang syarikat hanya boleh pecat Mak, sekiranya mereka rasa Mak tak sesuai jadi pekerja tetap SELEPAS tempoh percubaannya. Jadi dari kes di atas, kita dapat tahu yang syarikat mesti beri alasan munasabah kalau mereka nak pecat anda sebelum tempoh percubaan tamat. Tapi alasan macam mana yang dianggap diterima di mahkamah? Sebenarnya tak ada senarai lengkap tentang alasan tu, tapi secara umumnya ada 3 keadaan: Pekerja percubaan telah melakukan salah laku seperti gangguan seksual atau selalu datang lewat Prestasi kerja pekerja percubaan sangat rendah, dan ini bermakna dia tak melakukan tugasnya dengan baik Pekerja percubaan diberhentikan, kerana syarikat tidak mampu lagi menampung kos Jadi kalau alasan memecat anda tak ada kaitan dengan keadaan-keadaan seperti di atas, ini bermakna pemecatan itu adalah salah. Dalam kata lain, syarikat telah memecat anda secara tak sah. [BACA LAGI: My boss fired me for no reason, what can I do now?] Anda boleh ambil tindakan terhadap syarikat yang memecat anda secara salah Negara ni ada undang-undang, dan anda tak boleh kena pecat macam tu je. Ini kerana, undang-undang Malaysia melindungi hak-hak pekerja dengan beri mereka peluang untuk ambil tindakan terhadap syarikat. Menurut Seksyen 20 Akta Perhubungan Perusahaan, mana-mana pekerja di Malaysia (sama ada di Semenanjung atau Sabah dan Sarawak) boleh mengadu kepada Ketua Pengarah Perhubungan Perusahaan jika berdepan dengan keadaan dipecat secara salah. Aduan itu boleh dibuat di Jabatan Sumber Manusia terdekat, dan sebaik sahaja aduan dihantar kepada Ketua Pengarah, dia akan meyerahkannya kepada Menteri Sumber Manusia yang kemudiannya boleh merujuk perkara itu kepada Mahkamah Perusahaan. Di Mahkamah Perusahaan, anda akan diminta untuk buktikan yang anda dipecat secara salah oleh syarikat. Anda boleh buatnya secara sendirian atau diwakili peguam atau ahli kesatuan sekerja (jika ada)."
"Bank Negara's AKPK helps Malaysians manage their debts for free. Here's how it works You’re at that point in your life where your friends are a little jealous of you. You have a nice car, a big house, your own business, and awesome wife and kids. On the outside, you’re living the Malaysian dream. But here’s the thing: while things look good on the surface, behind the scenes you’re struggling. You took up loans for that house, car and business – and you’re struggling to pay it off. In such situations, things can spiral pretty far. And for someone struggling with debts, the worst thing that could happen to them is becoming bankrupt. Which basically means you’re broke under the eyes of the law. [READ MORE: How do bankruptcy proceedings work in Malaysia?] What happens if you can’t pay your debts? According to a study done, Malaysians earning RM 2,001 to RM 4,000 spend up to 55% of their income to pay off loan debts. Generally the types of loans taken are education loans, housing, car, and personal loans (with either your car or house as security). As mentioned earlier, the worst thing that could happen if you can’t pay your debts is that you become bankrupt. But before that happens, depending on the kind of debt you’re in, your creditors would first look to repossess the things you still owe payment for, such as your car or house. Once they take over your house and car, they can still sue you for money, if there’s a difference between the amount you borrowed and the value of your car and house. The banks right to sue you for money could apply to unsecured personal loans (meaning no house or car as security), PTPTN and credit card debts. And if the bank wins the case in court and you still can’t make your payments, the bank could then start bankruptcy proceedings against you, making you a bankrupt. But before things get to that stage, there are things you can do to prevent it. Bank Negara has set up an agency called AKPK (Agensi Pengurusan Kredit dan Kaunseling) to help people deal with their debts, and the first thing you should know is... AKPK helps people settle their debts FOR FREE, According to their AKPK’s website their main task is to... “...help individuals take control of their financial situation and gain peace of mind that comes from the wise use of credit” - AKPK They achieve this goal by providing two types of services: financial counselling debt management programme Since we’re focused on getting out of debts, we’ll discuss the debt management programme. The first thing you should know is that, under the programme, AKPK will create a new payment plan for all the debts you have with your banks. This programme usually starts with meeting up with an AKPK officer at their AKPK branch. During that meet up, the officer will calculate your financial commitments (basically how much you spend for everyday things and your loans). After that, the officer will proceed to come up with a new plan for your loans/debts. To secure you a new plan, AKPK will negotiate with your banks to restructure your loans. According to their website, AKPK will try to convince your banks to group your loans, and come up with one new payment plan. AKPK will then act as a middleman of sorts between you and the bank. So instead of paying it straight to the banks for your many different loans, you’ll have an agreement with AKPK, where you make payments to them and they will dispense the monies to your creditors. Do note that AKPK won’t reduce your debts in the process; you still owe what you owe. But what they’ll do is come up with a longer payment plan which could be easier for you to pay on a monthly basis. In addition to that, AKPK will also help you come up with a budgeting plan – so you may have to spend a bit more wisely (which means you may have to switch your boba sessions to teh-tarik). And to make sure you don’t incur any new debts, during the debt management process, you will have to cancel off your credit cards and to not take on any new credit facilities (like loans and credit cards). And if you’re thinking this service is going to be hard to apply for…. You can apply for their debt management programme online So if you’re looking to manage your debts, it’s not gonna be a hard process. You just have to go online and sign up for the programme. Afther that, you’ll be given a date to meet up with the AKPK officer and go through the process we mentioned earlier. But it’s important to point out that not everyone will be eligible for AKPK’s programme. There are actually certain eligibility requirements for the programme: you must not be bankrupt you’re not getting sued you have sufficient net disposable income (meaning you got enough spending money after paying taxes) your debts are not more than RM 2 million In addition to that, even if you are not in debt, you can still go to AKPK for financial counselling services. Basically this is where you go into AKPK for advice on budgeting and how to manage your money. You don’t need an appointment for this service, but AKPK has specific times for it:"
"Grab may be fined RM87 million for 'industry monopoly'. Here's what they (allegedly) did Grab recently came into the spotlight when the Malaysian Competition Commission (MyCC) announced that the company is now an anti-competitor in the e-hailing industry. MyCC also proposed to fine Grab for RM86.8mil, with a daily penalty of RM15,000 per day. If you’re still in the dark about what anti-competition is, perhaps this scenario can explain: You’ve subscribed to a local TV provider for 10 years now. You realize that each year, the subscription price keeps increasing. You try to look for other options, but there doesn’t seem to be any out there. So you have no choice but to keep paying for it, because it’s the only choice you have. Well this scenario isn’t made up, and it actually exists. This is known as a market monopoly. A market monopoly is somewhat similar to the monopoly game we used to play—you basically try to rule everyone, by buying over/owning as many things as you can—which is essentially what companies do when they dominate an entire industry...alone. But here’s how it really works in real life: The market monopoly is more than just a game As we explained earlier, a monopoly is when a company dominates a particular market. The company is said to have great control on the market, which indirectly gives them power to control and alter prices. But here’s a fact: Monopolies aren’t actually illegal in Malaysia. In fact, we have quite a number in the country. Telekom Malaysia’s high speed broadband and Astro are notable examples. Now, while monopolies aren’t illegal, they aren’t encouraged in a country either. So, for the monopolies that currently do exist, they are allowed to operate, as long as they don’t abuse their position by dominating in a particular industry. Our government has plans to bring in more players into different industries, to avoid having a single, dominant company controlling an entire industry alone. In fact, there are laws preventing companies from being solely dominant. Section 10 of the Competition Act 2010 states: “(1) An enterprise is prohibited from engaging, whether independently or collectively, in any conduct which amounts to an abuse of a dominant position in any market for goods or services...” Basically, a company is not allowed to abuse its power, by being the only player in a particular industry. The law even gives us examples of a company abusing its dominant position in a market: “...directly or indirectly imposing unfair purchase or selling price or other unfair trading condition on any supplier or customer; Limiting or controlling— (i) production; (ii) market outlets or market access; (iii) technical or technological development; or (iv) investment, to the prejudice of consumers; any predatory behaviour towards competitors...” TL;DR: A monopoly company that doesn’t misuse its position, and doesn’t put consumers or fellow competitors at a great disadvantage is perfectly legal. But who gets to decide if a company is abusing power in an industry? MyCC helps prevent monopolies Competition laws exists globally, and Malaysia’s version is stated in the Competition Act 2010. The Act was passed for 2 main reasons: To encourage healthy competition between companies in the same industry. To prevent companies from collaborating illegally. [READ MORE: Digi and Celcom are planning to merge. How will this affect their customers?] The Malaysian Competition Commission (MyCC) acts as the regulatory body to protect consumers from being abused by a monopoly. MyCC gets its powers from Section 40 of the Competition Act: “...the Commission may impose a financial penalty...or...may give any other direction as it deems appropriate.” The Act basically gives MyCC the authority to decide on how much to fine anti-competitive practices. They also have the power to instruct a monopoly to stop business, take steps to stop the monopoly from operating and give any other direction which is appropriate. So as you can see, they have a large scope to make decisions under Competition laws. But there’s one thing that keeps MyCC accountable for their actions. Under Section 40(3), they are required to publish the reason(s) as to why they want to impose fines or take action on a certain company. So in this grappling situation that Grab’s in, MyCC has stated the reason behind their decision. They found that Grab abused its position by imposing restrictive clauses on its drivers—preventing them from providing advertising services to Grab’s competitors. This has now restricted competition among other competitors in the e-hailing market. But how did that bring a fine amounting RM86.8 million? MyCC calculates fines based on a guideline MyCC’s power to impose a financial penalty is limited, and cannot exceed 10% of the company’s global revenue (money made). This is calculated based on the duration of their wrongdoing. It is explained in the Competition Act Guideline as such: “If the MyCC finds an infringement of the CA 2010, it may impose a financial penalty of up to 10% of the worldwide turnover of the enterprise for the period during which the infringement occurred...” Basically, if a company violates Competition laws for 5 years, the company’s turnover (income earned) for those 5 years will be calculated. However, if an offending company makes RM5 billion over a certain duration, MyCC can fine them for a maximum of RM500 million...ONLY. But MyCC can’t simply slap that maximum fine just because it wants to. The penalties are also considered based on dominance of the company: “If your business has a market share of above 60%, the MyCC takes the view that this is a strong indicator that your business holds a dominant position...but market share alone is not the only indicator of dominance...”—MyCC’s guidelines. But a dominant business isn’t just determined by the market share. Other factors include, the business’s actual competitors, potential competitors and economic regulations. [READ MORE: MYEG was fined RM9.34 million for breaking competition laws. Here’s what happened] What’s in for Grab? So just to refresh you on the details, Grab may be fined RM86.8million for violating Anti-Competition laws. They have 30 days from the day the fine was announced, to defend themselves from MyCC’s proposed decision. The RM86.8 million fine imposed, may increase or decrease based on the defence Grab provides to MyCC. As for now, Grab has stated that they’ve complied fully with the Competition Act. However, a daily penalty of RM15,000 will continue to run until Grab can successfully defend their statement."
"M'sians who are scared of flying get spot-checked more, and other weird airport stats If you’ve ever travelled with people that you know, you may notice that their behavior might change the moment they step into an airport. Your Manglish-speaking friend may suddenly acquire an American accent, or your usually calm sister may become a prickly ball of stress. And if you didn’t notice anyone acting differently, perhaps the one who changed is…. you. But theories aside, we started to wonder how Malaysians actually behave at airports – from toilet habits to security concerns – and so we teamed up with our friends at Cilisos and Soscili to run the first ever Malaysian Kaki Terbang Survey 2019 (Cilisos came up with this name, obviously). It’s essentially a snazzy name for an airport behavior survey that we conducted with Malaysia Airports (MAHB), the people who run 39 airports around Malaysia; most notably the Kuala Lumpur International Airport and its KLIA 2 terminal. Fun fact: KLIA 2 is actually a terminal and not a separate airport. Other fun fact: Most people think Malaysia Airports and Malaysia Airlines are the same company… they’re actually separate unrelated entities. Before we get into the fun stuff, here are the base results from the survey: Survey period: 14th August – 1st Sept 2019 Total respondents: 3113 Top locations: Selangor (34%), KL (23%), Sarawak (9%), Sabah (6%), Johor (6%)… but we had respondents from every state Top age groups: 21-29 (43%), 30-39 (31%), 40-49 (6%)… but we had respondents from every age group Gender identification: 62% female, 37% male, 1% others Now buckle up and put your seat in the upright position because fun stuff will be landing in 3...2... 1. Paranoid Malaysian travellers are MORE LIKELY to get spot-checked by airport security Generally, most Malaysian travellers (46%) think that they’re equally as safe in the airport as any public place, but 37% said they’ll be a little more cautious if a stranger started talking to them. What’s interesting here is that those who said they’re extra-cautious of everything around them were also stopped for random checks by airport security the most (63%) while those who said they were totally not concerned about safety were stopped the least (56%). This may also be pretty expected, but more men have reported getting stopped (62%) compared to women (56%). After filtering down the results by state, our survey indicates that you’d be more likely to get stopped if you’re from Terengganu (69%) although we’re pretty sure your state of origin won’t be known to security at the time. Overall though, a majority of Malaysians take these checks in good faith; with 58% understanding that security are just doing their job. That being said, a very insignificant percentage (less than 1%) said they would outrightly refuse to be checked. What’s perhaps funny/worrying about this is that the majority of this 1% would refuse by running away from the officer. DO NOT DO THIS! While it might sound amusing, running away from an officer may drastically escalate the situation and put yourself and others in danger. But beyond spotchecks and the usual security and immigration counters, there are a whole lot of under-the-hood methods that airports employ to ensure that guests are kept safe and comfortable. For instance, MAHB has something called a ‘High-precision foreign object debris detection system’ (FODDS) at KLIA that uses linear cell radar technology to increase safety on the runway. It can detect even the smallest objects – like a loose grain of rice – on the runway., as small debris can cause major damage to planes, causing bent/broken fan blades, engine failure, fires, wing damage, and even massive puncture on plane tires; and we’re the first in the world to be using this sort of radar after Japan. 2. The thing that annoys travellers the most are……..queue cutters We don’t like them at ATM machines, we don’t like them on the road, and we sure don’t like them at the airport. The top pet peeves listed are: People who cut queues (58%) Machines (Immigration autogates, self check-in, etc) that don’t work (40%) People who rush to board the plane before being called by the attendant (38%) In case you’re wondering why the percentages exceed 100% when added up, it’s because respondents could pick up to 3 annoyances. Speaking of queues, our survey showed that most Malaysians spend 11 – 30 minutes to get past immigration, with 56% preferring to use the autogate. On the other hand, 35% prefer to choose their options strategically, by analyzing which queue is moving faster before making a decision. There’s good news in the horizon in regards to queues though – our friends at MAHB say that they’re working to redesign the immigration checkpoint area at KLIA 2 terminal to address feedback that the current area doesn’t really cater to long queues and it has poor visibility from a distance. MAHB has added 8 new autogates at the arrival area of the KLIA Main Terminal, bringing the total to 28, with more coming in the near future. As for the KLIA 2 terminal, there are currently 30 autogates already in service. But beyond just increasing the number of terminals, MAHB is also working with partner airlines on implementing facial recognition technology to reduce queues and fast-track your way to the boarding gate. This is called a single token journey and we heard that MAHB will be piloting the initiative by the end of the year. The importance of making queues move faster and more efficiently is also reflected in our survey, as Malaysians picked fast immigration counters (66%) and clean toilets (60%) as the most important factors for a pleasant airport experience. Speaking of toilets… 3. The gender that’s more likely to wash toilet seats before using are…...men. Just like Area 51, the toilets of the opposite gender may be a place of mystery to many of us. Not being able to enter and observe, we can only imagine (or glean from movies) what toilets are like on the other side. This writer (who is male) was pretty surprised to find that men (34%) were more inclined to wash the toilet seat before use compared to women (31%). However, women (27%) were more inclined to line the toilet seats with tissue paper compared to men (24%). Overall, though, hygiene seems to be important to many Malaysians regardless of gender. 41% of Malaysians carry wet wipes and 28% carry sanitizers in their bags. Not just that, the toilet is usually the first stop for foreign visitors and paints the first impression of a country’s culture and cleanliness. This is why the condition of the airport toilets is one of the things strictly monitored under the Quality of Service framework by the Malaysia Aviation Commission (MAVCOM). There has been a massive toilet refurbishment exercise since 2017, with a goal of redesigning 132 passenger toilets. So far, 32 have been refurbished, and the reason why it takes so long is because airport toilets are made for heavy duty use, and piping systems have to be changed to accommodate the new designs. To keep toilets clean and comfortable, each toilet has one dedicated cleaner stationed there 24/7… but take note that this doesn’t mean you can do your business on the walls just because there’s someone to clean up after you – we’re (likely) not kidding about this as 2% claim that they clean toilet walls before using. This is why MAHB has also started a “Pay It Forward” campaign to remind users to leave the toilet clean and dry for the next user. Yes, it means that adults have to be reminded of basic toilet etiquette, which is both funny and sad if you think about it. 4. Penangites would rather drink free water than pay for food Most travellers would actually end up hitting the F&B outlets while waiting to board their flight. However, 33% pointed out that they would prefer to not spend more than what they would ordinarily pay at an outside branch. On the other end of that spectrum though, 25% said that money isn’t an issue when it comes to airport F&B. When we further broke down the data by state and income group, we found a couple of interesting things. In regards to income group, there’s a tie between the groups who said they won’t spend any money on F&B at all… and they’re on opposite ends of each other! Yup, the lowest income group (less than RM2k, 11%) and the highest income group (more than RM50k, 11%) are the least likely to find themselves at an airport cafe. We already gave this away in the header (belated spoiler alert) but Penangites are the most stingy economically observant of all the states and federal territories. 32% said they wouldn’t pay more at an airport compared to outside, while 12% would just get free water from the dispensers. The most willing to spend? Terengganu-ians. 42% of travellers from Terengganu said that money was no object when it came to food. 4. The most unfortunate thing that happens to Malaysians at an airport is…. getting lost While missing a flight can be considered a common unfortunate experience – 42% of Malaysians in our survey have missed at least one flight in their lives – a considerable percentage attributed the reason to loss, whether physically getting lost or losing an item/person. 31% have said that they’ve gotten lost in the airport, and 20% of this has resulted in missing a flight. A further 10% have lost a travel buddy, and 18% of them have missed flights while trying to locate their lost friend. While we didn’t include this as a selectable option (hence no percentages) a number of people told us that they’ve lost items at an airport before, with some of them also resulting in a missed flight. Most commonly lost items? Phones and ICs. While we can’t really help with lost belongings, there is a solution for the directionally challenged. If you are travelling via KLIA, you can download the MYAirports app that is available on Google Play or App Store to help you with way-finding and also to get real-time flight information. If mobile apps aren’t your thing, then the Airport Digital Directory at the terminal provides similar functions so that you will be able to get to your boarding gate in time without getting lost. On a less harrowing note, most Malaysians report their airport experience as ‘normal’ with nothing overly bad or exciting happening… but 27% have seen celebrities while 16% have seen couples fighting with each other. 9% have seen someone getting arrested, and 7% witnessing an actual fight. Airports are for flights not fights, okay! 5. First and Business class are more likely to sneak in contraband….and flirt When it came to naughty behavior at the airport, you’d likely be guilty of this top three: Checking out the hot flight staff (55%) Bringing in heavier luggage than allowed (55%) Secretly making fun of foreigners (33%) However, something of interest popped up when we compared these results against the type of flights they went for; because: Those who fly premium class on full service airlines are most likely to sneak in contraband (5%) and flirt with passengers (15%) and flight staff (9%) Those who buy premium seats on budget airlines are most likely to try sneaking in luggage that’s above their weight allocation (59%) Those who buy Economy class on full service airlines are most likely to make fun of foreigners (37%) Just a note though…. “contraband” may not necessarily refer to drugs, but stuff that won’t otherwise be allowed in by Customs. On the social side of things, 5% admitted to falling in love at the airport while 4% said they’ve hooked up with a fellow traveller. For the most part though, we generally keep to ourselves because, when we asked our respondents if they have struck up a conversation with someone cute at the airport, only 18% said yes while 36% have thought about it but never actually went through with the idea. The majority (46%) scolded us for asking that question. The following stat isn’t exactly naughty, but 11% admitted to putting on a fake accent when they’re at the airport and, strangely enough, most of them are single. Also, most Malaysians aren’t aware that KLIA has free parking Although a whopping 84% know that KLIA provides free WiFi (and computers), only 21% are aware that KLIA also provides 30 minutes of free parking. This basically gives you enough time to park your car to greet or send off a loved one, or to drop them off at the entrance. Either way, it beats stopping at the side of the road and getting chased off by security! As mentioned, MAHB is the company in charge of managing, operating, maintaining, and developing most of the airports in Malaysia. However, did you know that they also operate airports in other countries and are one of the largest airport operator groups in the world in terms of number of passengers handled? And speaking of huge volumes of people, no wonder why their strength lies in servicing their guests to make them happy. There are many things that people think fall under their jurisdiction (few open immigration counters, flight delays, etc) but, as it turns out, an airport is essentially dependent on many parties working together to provide a seamless experience. What they do is to provide the best possible airport infrastructure and facilities for the airlines and government agencies so that they can operate smoothly and, as a result, anyone can have a seamless journey with minimal queues and waiting times. For guests, this means providing a whole bunch of benefits that even we didn’t know about; such as wheelchairs and baby strollers that can be freely taken and used without the hassle of registering, letting guests freshen up with free shower facilities at KLIA2, and many private nooks and corners for you to relax or snooze on comfy long chairs. Some airports also have faux grass carpet areas, which we’re told is quite a hit among passengers. And finally, some stats that are too short to turn into full points: 10% bring their ‘bantal busuk’ to the airport… That’s almost as many of those who bring religious items and lucky charms. Overall, half of our respondents (51%) said that they wouldn’t put any more effort into dressing up for a flight as they would going to the mall. 49% will walk on the travelator because it’s faster. Those who hate walking the most (ie, standing on the travelator) are mainly from Pahang (34%). More than half of Malaysians go for the cheapest seats on a budget airline (52%). 15% would stock up on Christmas and birthday gifts from duty free shops… cos cheaper Most-purchased duty free items are chocolate (56%) and cologne/perfume (29%) Also, if you’ve done this survey and are among the 10% who think that KLIA offers free coffee and sandwiches, it’s a trap. However, there are actually some value-for-money places at the airport, if you know where to find them. For example, you can get a very generous serving of nasi campur with chicken and veggies at the KLIA main terminal food court (Level 2) for under RM10. Gateway@klia2, the shopping mall before the klia2 terminal, is also filled with a wide variety of F&B choices. Even convenience stores such as 7-Eleven and Mynews.com have sitting areas just incase you are craving for a bowl of piping hot instant noodles before you fly."
"Tampered with your TNB meter? You can get fined up to RM1mil You’ve heard from your friends that they’ve recently been saving over hundreds of ringgit on their electricity bill simply by installing a device on their TNB meter. They recommend this device to you too and for a while, you even entertain the idea. Nothing wrong with saving money, right? You look into it and discover other ways people have tried to save on their electricity bills. Like your friends, some tried putting on devices on their meters. Some experienced ones even meddled with the wires connected to the meter in order to show a lesser reading. But believe it or not, as tempting as it sounds, you can get into a whole lot of trouble for trying to even tamper with your TNB meter. This is because… Tampering with your TNB meter is considered electricity theft You would think that electricity theft only happens if you illegally hook a cable into an electric line to steal electricity. But tampering with your TNB meter can be considered as theft. Since tampering will show a lower usage than the actual amount being shown, it can be seen as stealing electricity. But it won’t be long before you get caught because if TNB suspects that your meter is showing irregular readings, they wouldn’t think twice to investigate. If found that you have actually tampered with your meter, they could file a police report against you and change your tampered meter to a new one (which you have to pay for) in order to show the current accurate readings. They would then start calculating ALL the back charges that you’ve been escaping and issue you with a notice or summons for those unpaid back charges. But how can you actually be liable for tampering with your meter Injuries or damages caused by tampering This is where the Electricity Supply Act 1990 (ESA 1990) comes into place. There are a few sections under the ESA 1990 that deals with meter tampering. Under Section 37(1) of the ESA 1990: Any person who tampers with or adjusts any installation or part thereof or manufactures or imports or sells any equipment so as to cause or to be likely to cause danger to human life or limb or injury to any equipment or other property commits an offence and for each such offence shall, on conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding ten years or to both. This would mean that if you have tampered with your electricity meter and would likely cause or have caused damage to property or people due to it, you could face a fine up to a whopping RM1,000,000 or imprisonment up to 10 years or both. Even if you sell any devices that would aid in the tampering of meters, you could also be liable under this section. Not only does it aim to punish those who steal electricity, but tampering meters can actually be really dangerous. This is because if you attempted to tamper the meter, the fuse may not operate properly and can even cause a fire. So you’re not only endangering yourself, but others as well. This is one event you wouldn’t want to see sparks fly. Even if you had negligently caused damage to any person or property by tampering with your meter, you could be held liable under Section 37(2) of the ESA 1990 and may face a fine up to RM100,000, imprisonment up to 5 years or both. Dishonestly using electricity or damaging your meter Section 37(3) further provides that any person who: dishonestly abstract, consumes or uses electricity or alters the meter or prevents the meter from recording its accurate reading could face a fine of up to RM1,000, imprisonment up to a year, or both. Though, if it’s your second offence under this section, you could instead be liable to a fine up to RM5,000 and not more than RM100,000, imprisonment up to 3 years or both. But these punishments are only if you’re a domestic user which are usually house owners. In cases of non-domestic users however, you could be liable to a fine not less than RM20,000 and not more than RM1,000,000, imprisonment up to 5 years, or both. But if it’s your second offence, you could instead face a fine not less than RM100,000 and not more than RM5,000,000, imprisonment up to 10 years, or both. Non-domestic users are usually those who are shop and office lot owners. Damaging or removing your meter could land you in trouble as well under Section 37(14) as you may be liable to a fine up to RM50,000, imprisonment up to 2 years or both. Assisting another to tamper Even if you didn’t tamper your own meter, Section 37B of the ESA 1990 provides that if you assist another person to commit an offence under the ESA 1990 such as tampering, you would be liable too. You could be punished with the same punishment as the one who actually tampered with the meter, but any term of imprisonment is at most half of the maximum term. So you might want to skip helping a friend out on this one. What if a company or your house tenant tampered with the meter? Section 37A of the ESA 1990 covers offences by a body corporate which includes companies. If a company was found to have tampered with the meter instead, this section provides that any person who at the time was a director, CEO, COO, manager, secretary or of other similar positions may be charged together in the same proceedings with the company. If the company is found guilty of the offence, it shall be presumed to be guilty of the offence unless they prove the offence was committed without their knowledge or consent and that they had taken all reasonable steps to prevent the offence from taking place. However, if you are a landlord who has rented out your house to your tenant instead, TNB has advised that owners should perform a change of tenancy by changing the name on the existing bill account. This is to avoid facing claims for any unpaid bills if your tenant has tampered with your meter. What can TNB do? They can actually disconnect your electricity if they suspect you have tampered with your meter as provided under Section 38(1) ESA 1990. Besides facing criminal charges, TNB can also file a civil suit against you as per Section 38(3) provided that a written statement under Section 38(4) is given containing particulars such as: the amount of loss of revenue or expenses incurred by TNB the manner of calculation for the loss and expenses and the person who is liable for payment If they don’t file a claim in court to claim the losses, they would only be able to claim for losses amounting up to 6 months from the date the offence was discovered. In a way, this compels them to file a civil suit against you so that they won’t miss out on claiming the maximum losses incurred. The laws surrounding meter tampering is actually really strict for a reason. So although it aims to punish those who steal electricity, it also aims to keep people out of harm’s way by preventing accidents from happening due to people attempting to tamper with their meters."
"How do Malaysian courts decide which parent gets child custody after a divorce? Note: The information in this article applies to civil marriages and not Islamic marriages. Click here for our article on divorce in Islamic marriages. So you’re married to the love of your life. The both of you have 3 children, a cat and a great relationship. But your happily ever after comes to a halt, when your husband/wife suddenly sends you...a divorce notice. Since you were not expecting this, you take some time to digest everything and finally decide on a joint petition. The divorce proceedings start, and you mutually discuss property division. But there’s one thing that you both can’t seem to agree on: who gets custody of your children? But first, let’s briefly look at what child custody is… You can have sole custody or share it So custody is broken down into 2 parts: Sole custody: Where only one parent is the guardian of the child(ren). Joint-custody: Both parents are equal guardians of the children. Custody depends on the petition that’s made in the divorce. In a normal divorce proceeding, there will be 2 parties. The party who wants the divorce is known as the Petitioner. The other party is called the Respondent. The Petitioner will state their demands in a “service of petition”—the service can include custody of children. If the Respondent is unhappy with the Petitioner’s demands, they can file to challenge the petition. The court will then consider who the child shall live with, based on the petition. The wishes of the parents and the child (if the child is old enough to choose who he wants to stay with) will be considered. But the most important principle that the courts will look at is: The well-being of the child. If you want sole custody of your children, you will need to prove several things first. This can include showing that your ex-partner might be unfit to have custody. For instance, if your wife is mentally unstable, the court can change the petition, and give you sole custody. [READ MORE: 5 common questions Malaysians will ask about divorce law] You can have custody over your children for a while Well, you can’t have custody on your child forever. Section 95 of the Law Reform (Marriage and Divorce) Act 2017 states: “...It shall expire on the attainment by the child of the age of eighteen years or where the child is under physical or mental disability, on the ceasing of such disability...or completion of such further or higher education...whichever is the later.” Basically, your children can only be under your custody until they turn 18. But this is an exception if the child has a mental/physical disability, or is furthering his/her studies. Also, you will be given custody of your children based on their needs. Section 88(4) of the Act states: “Where there are two or more children of a marriage, the court shall not be bound to place both or all in the custody of the same person but shall consider the welfare of each independently.” The court decides on the well-being of each child, separately (assuming there’s more then one child). The court will adopt certain principles when deciding child custody: 1.The life of a child should not be disrupted from the change of custody. If one parent has been taking care of the child before and after separation, the court may not change custody. This might unnecessarily disrupt the environment of the child. 2. The lifestyle of the parents will be relevant only if the welfare of the child is affected. For instance, if a parent is caught having an extra marital affair, his action does not automatically disqualify him from having custody. 3. It’s better for a child aged 7 and below to be with his or her mother. If the child is an infant, the court would prefer if the child was under his mother’s custody—as stated in the Guardianship of Infants Act 1961. But if the father can show that the mother is an unsuitable parent, he gets custody instead. In Amar Kaur Ram Singh v Najar Singh Sagar Singh (1991) the mother, has a history of suicidal tendencies and behavioral issues. The court rejected her application to have sole custody, as she was mentally unstable. The welfare of the children was put first by the court, and the father had sole custody over the children. [READ MORE: To get a divorce in Malaysia, you need to prove at least 1 of 4 things…] That’s basically how custody works for human children. But what if you have a fur-child instead? Your fur-baby is considered property Pets are considered property under Malaysian law. The court will treat your pet in accordance to division of property under Family Law. Just think of it as another furniture or household item...but this one breathes. Section 76(2) of the Law Reform (Marriage and Divorce) Act 1976 this below: “...the court shall have regard to— (a) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets;” Basically, the court will look into several things before dividing property: Whether the property was acquired from the marriage, or not. How much did each party contribute for the property. Who your cat likes more. So if your ex-husband bought your pet cat, but you’ve been taking care of it for the past 5 years—the court may give you “custody” over your fur-child. [READ MORE: If I divorce in Malaysia, do I automatically get half the property?] Remember to consult a family lawyer In case you missed the note in the beginning, custody differs from one family to another. No two marriages are the same. Each case will be decided based on its own facts. There are a lot of things the courts need to consider, before giving custody of children to parents or guardians. Which is why, it’s always best to consult a lawyer when it comes to child custody and property division in a divorce. With a lawyer’s advice, you will have a better understanding of your position. and what are some of the options you have in resolving your issues."
"5 things Malaysian workers need to know before striking against their company Note: This article was originally published in September 2019, and updated on 5 August 2022. Grab and Foodpanda recently came to light as the employees — particularly the riders — decided to strike for 24 hours against their companies. The strike, which is called a “Food Delivery Blackout” is meant to protest against their low compensation, as the riders would need to complete more deliveries to meet their target. Now employees being involved in strikes is generally illegal in Malaysia. So the question now is: Will these delivery riders get into trouble for striking as well? It is important to note this small but major difference in employment contracts first. There are two types of contracts: Contract OF service Contract FOR service In a contract OF service, both parties agree to have an employer-employee relationship. This applies to our usual full-time contracts and even part-time contracts. But a contract FOR service is different.This applies to freelance contracts. This contractor here would be an independent one who agrees to provide a type of service to the client, and would not be considered as an employee. So, it depends on what kind of contract the riders have with the company. If it’s a contract of service, the current strike may be legal. But if it’s a contract for service, they might be breaking the law, as they are not covered by the relevant acts. But if you are planning to strike against your company, here’s a general guideline on how you can do so legally. 1. Create a trade union before striking A trade union can only call for a strike if 2/3 of the members agree to strike. A secret ballot will be used to get the consent and must be submitted to the Director-General within 7 days. So if you’re the only person who’s unhappy with your company, you can’t exactly strike about it...alone. Striking is defined in the Industrial Relations Act 1967 as: “...cessation of work by a body of workmen acting in combination...under a common understanding...to continue to work or to accept employment, and includes any act or omission...intended to...any limitation/restriction...in the performance or execution of the whole or any part of the duties connected with their employment;” So, if you and your colleagues are unhappy with something, you can choose to strike against the company by forming a trade union. Trade unions are sole bargaining agents, that solve problems between employers and employees. The registration must be done within 1 month of the formation of the union. The application must be made by at least 7 members, and a fee of RM30.00 will be charged. The members should also submit a copy of the rules of the trade union, a copy of the minutes from the first meeting and the particulars of the members. 2. Get permission to strike Article 10 of the Federal Constitution states, that all citizens have the right to form associations. In this case, workers can form trade unions, which is a type of association. However, if the strike is conducted by workers who are not part of a registered trade union, the strike is considered illegal. Section 25(A) of the Trade Union Act 1959 states: “No trade union of workmen shall call for a strike, and no member thereof shall go on strike, and no trade union of employers shall declare a lock-out...before the expiry of seven days after submitting to the Director General...” All trade unions must register themselves with the Director-General of Trade Unions (DGTU), before taking part in a strike. If the strike is considered illegal, every member will be liable to a fine of RM2,000.00 or jail-time not exceeding one year, or both, as per the Trade Unions Act. 3. Know the difference between picketing and striking Before you and your colleagues decide to publicly show your disapproval towards your company, you should first figure out if you want to picket or strike. Picketing: One step below striking. Done after working hours, outside of workplace. Normally done to pursuade other workers to stop working. Should not be conducted in an intimidating way, or obstructs the entrance of the workplace. Striking: Normally conducted by members of a registered trade union. Considered illegal if the dispute is already under investigation, Illegal if not conducted by a registered trade union If the dispute isn’t part of the company, and the union is just in support of another strike. If the picketing or strike is found to be illegal, fines and jail time will follow. Section 40(3) and Section 46 of the IRA 1967 carry a fine up to RM1000.00, imprisonment not more than one year or both. The regulations will follow through, once you decide which type of protest you want to take part in. 4. Write to your company that you’ll be absent The law requires you to apply for leave, when it comes to any work involving trade unions. Section 6 of the Industrial Relations Act states: “A workman intending to carry out his duties...as an officer of a trade union shall apply in writing to his employer for leave...stating the duration of and the purposes...leave is applied for and the employer shall grant the application for leave...is reasonably required for the purposes stated in the application...” Although you’re in a dispute with your company, you still need to inform them if you need to be absent from work. Now, this might not make much sense, but it’s better than getting fired for taking leave, without a good reason. But this law does not apply so much to strikes, but mostly for the hearings of the case in the Industrial Court. Think of it as the consequences that follow after the action (the strike). So apply for leave if you have to represent the trade union. The company in return, should grant the employee leave for matters involving trade unions. 5. You cannot get fired for participating in a legal strike Unless you resign on your own will, your company cannot fire you for taking part in a legal strike. If you strike with permission from the Director General, it is considered legal. Section 10(2) of the Industrial Relations Act 1967 states: “No employer shall declare a lock-out or terminate the services of a workman once a trade union of workmen has served on the employer or a trade union of employers to which the employer belongs...” In other words, your company cannot fire you for being part of a strike. The law further states, that the company cannot close-down the place of work or suspend employees who are part of a legal strike. So if you’re ever stuck between fighting for your rights and losing your job, just remember to check if the strike is legal or not in the first place. If you get fired for striking legally, sue your company If your company fires you for being part of a registered union—you can bring the case to court. [READ MORE: My boss just fired me for no reason, what can I do now?] Any worker who feels that he has been unfairly fired, can request for his job back. Section 20(3) of the Industrial Relations Act 1967 states: ""Where a workman...considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment..."" You can file a case with the Director General of the Industrial court, within 60 days of dismissal to challenge your dismissal. If the court finds that you have been unfairly fired, you’re entitled to certain benefits. As long as the trade union is registered and there’s permission from the Director General, there isn’t much your company can do to stop you from taking part in the strike."
"What's life REALLY like when you're out on bail in Malaysia? In many movies that we’ve seen, it’s always the rich bad guy who gets arrested by the cops and gets someone to bail him out. But then right after that, he goes on to have wild party in Ibiza and somehow just gets away with his crime altogether. While it may seem like the usual scene in movies, it’s not the case in reality. In fact, it’s quite far from it. The term bail has been commonly used be it in movies or in real life. Bail is basically getting someone to pay money to get you out of jail after you’ve been arrested. Though, this release is temporary till your case goes on trial and if you’re found to be guilty, back you go into the cells! Yet, while many of us only have an impression of what being on bail is like from movies, here’s what it’s really like. But first...what is bail? Usually if you’re charged with a crime, you would have to stay in jail until the day of your trial. In some situations, the law will allow you to go home during this period. Essentially, bail is the temporary release of an accused person who is awaiting trial in exchange for money. In case you didn’t know what an accused person is, this is the stage where they are charged with a crime but not yet tried in court. This would mean that they have just been accused of a crime and are still presumed to be innocent unless proven guilty in court. Though, you will need someone to post your bail on your behalf because you cannot do it yourself. This is because the person who posts your bail (aka the bailor) has the additional duty to make sure you actually show up in court. However, bail cannot be posted for every offence. There are some situations where you are automatically given the right to be released on bail, some situations where you absolutely can’t be granted bail or situations where the judge gets to decide whether to grant it to you or not. This all depends on the type of crime that you have been charged with. This then can be divided into 3 different categories: 1. Bailable Offences Bailable offences are offences where an accused person must be allowed to be given bail as of right as provided under Section 387 of the Criminal Procedure Code (CPC). This means that courts are not allowed to deny bail for bailable offences. These offences are often minor ones and carry lighter punishments. An example would be assault under Section 352 of the Penal Code. 2. Non-bailable Offences Non-bailable offences are offences where generally bail is not allowed but the judge has the choice whether to grant it or not as seen under Section 388 of the CPC. They are usually offences which are more serious in nature. Getting bail depends on a few factors such as: whether the offence committed is punishable by death or life imprisonment whether there are reasonable grounds to believe the accused is guilty or not whether the accused is under the age of 16, a woman or has any illnesses. 3. Unbailable Offences Unbailable offences however, are offences where bail is absolutely not allowed and the court has no say in the granting of it either. These offences are usually at the height of serious ones. One example would be drug trafficking under Section 39B of the Dangerous Drugs Act 1952 which carries the death penalty. [READ MORE: In Malaysia, you can pay bail to go home instead of going to jail. Here's how it works] The judge can place additional conditions on you The Criminal Procedure Code doesn’t really say that a judge can impose conditions on your bail/release, but past court cases have said that it can be done. But of course, judges can’t simply impose conditions on bail like that. It’s only in certain situations that they can do so. These conditions can only be imposed in non-bailable cases where the judge is allowed to decide if an accused should be out on bail or not. For bailable cases, where bail is already a given right, no conditions can be imposed. The most important term though is that you absolutely have to attend all court dates given to you if you’re out on bail. This is regardless of whether you have committed a bailable or non-bailable offence. The court could also order for an electronic monitoring device to be attached to you as provided under Section 388A of the CPC. This actually applies to both bailable and non-bailable offences. So while conditions generally can’t be imposed on bailable offences, this section allows for the court to choose whether or not to order an electronic monitoring device to be attached to an accused person no matter if it’s a bailable or non-bailable offence. One thing the judge might take into consideration is how much of a flight risk you are and whether you have the resources to leave the country. That being said, your passport may be seized to prevent you from leaving the country. There have been cases where the accused’s passport have been seized as seen in Zulkiflee bin Hj Hassan v PP [1987] 2 MLJ 527 and in the even more recent Zahid Hamidi’s corruption case. As the former deputy prime minister is facing multiple charges of money-laundering, criminal breach of trust and corruption, he was released on bail and had his passport seized. However, he had recently appealed to the court to get his passport back for him to be able to perform umrah. The court rejected his appeal stating that while the performance of umrah is highly recommended during the fasting month, it is not compulsory. The prosecution also added in that while the government does not intend to prevent one from performing his religious obligations, the former deputy prime minister is facing very serious charges and shouldn’t be allowed to leave the country. Though, there have been cases where not one but multiple and even stricter conditions have been imposed in order for bail to be granted. In the case of PP v Dato Balwant Singh (No.1) [2002], an 80 year old lawyer (being Dato Balwant Singh) was charged for the murder of a despatch rider after shooting him with his gun. The conditions that the court had imposed on him were such as: to surrender his firearm and the licence relating thereto to the police immediately passport to be surrendered to the court to report to the police once in two weeks to remain indoors from the hours of 6pm-8am not to be present at any open public place or attend any public functions except for religious and family activities not to leave Kuala Lumpur and Petaling Jaya without the leave of court But restrictions aren’t the only thing they can do to you because…. Your bail can be cancelled even after being released The court can actually cancel your bail in certain situations for both bailable and non-bailable offences. While the CPC does not specifically state for the cancellation / revocation of bail for bailable offences, the case of Wong Kim Woon v PP [1999] 5 MLJ 114 held that bail can be revoked for bailable offences if a vital term has been breached. In this case, the accused had failed to appear in court on a date that was given and so had breached a vital term of his bail. The court then had revoked his bail. So the courts may revoke bail in bailable offences provided that the accused is first given a chance to explain on why the bail granted should not be cancelled/revoked. So you probably wouldn’t want to skip your court date to catch up on your Netflix shows. For non-bailable offences however, Section 388(5) of the CPC allows the Court to cancel the bail at any time. Besides non-compliance of bail terms, it could also be due to any factors that would jeopardize the case such as the harassing and tampering with witnesses. This was alleged in the case of Phang Yong Fook v PP [1988] 1 MLJ 267 where the accused was charged with criminal breach of trust. The prosecution had applied for the bail to be cancelled on the basis that the accused was harassing witnesses. Though the application to revoke the bail was set aside as there was not enough evidence. So yes while bail gives you the opportunity to live a somewhat normal life while waiting for your trial to begin, it doesn’t work the same way in the movies where you could be soaking up the sun and partying in Ibiza. You could though be soaking up crime movies or tv shows on Netflix and imagining you were living that movie bail life."
"Boleh ke anda dipecat sebab ambil banyak sangat MC? [Click here for English version] Cuba bayangkan situasi ni: Anda dah dedikasikan hidup anda selama 8 tahun untuk pekerjaan anda. Anda bukan je suka dengan kerja anda, tapi juga syarikat tempat anda bekerja. Namun, semuanya berubah bila anda disahkan menghidapi kanser perut. Anda sekarang kena buat pilihan, sama ada – ambil cuti selama 6 bulan atau berhenti kerja. Tapi bila pertimbangkan kos rawatan, berhenti kerja dah pasti bukanlah jawapannya. Tapi di sebalik dilema ni, rupa-rupanya bos anda dah ada rancangan lain. Dia hubungi anda dan kata – dia tak ada pilihan lain, selain dari memecat anda. Dia kata – syarikat akan alami kerugian kalau mereka biarkan anda asyik ambil cuti sakit je nanti. Rasa kecewa dan terkejut dengan kenyataan tu, anda pun terfikir: Boleh ke syarikat pecat pekerja, masa mereka sedang sakit? Majikan tak boleh pecat anda kerana ambil MC Sebagai seorang pekerja, anda berhak mendapat cuti sakit sekiranya tidak sihat. Seksyen 60F Akta Kerja 1955 menyatakan (tiada terjemahan rasmi, diterjemahkan oleh Asklegal): “(1) Seorang pekerja hendaklah, selepas pemeriksaan atas perbelanjaan majikan… berhak mendapat cuti sakit berbayar… di mana tiada kemasukan ke hospital diperlukan.” Setiap pekerja juga diberikan cuti sakit minimum sebanyak 14 hari setahun (jika anda bekerja kurang dari 2 tahun). Jumlah cuti sakit tu akan meningkat berdasarkan berapa lama anda bekerja. [BACA LAGI: 5 types of leave in Malaysia (and if you will be paid when you take them)] Akta ni seterusnya menyatakan yang anda kena dapatkan MC daripada doktor untuk memohon cuti sakit. Tapi ada juga kemungkinan yang anda tak boleh dapatkannya (sebab masalah jarak dan sebagainya). Dalam kes macam ni, majikan masih tak boleh pecat atau ambil tindakan terhadap anda. Sebabnya, anda berhak ambil cuti sakit dalam keadaan yang munasabah. Tapi, macam mana kalau anda perlukan cuti sakit lebih dari sehari? Jawapannya, majikan anda masih tak boleh pecat anda. Sebabnya, Seksyen 20, Akta Perhubungan Perusahaan 1967 melindungi pekerja dari dipecat secara tak adil (tiada terjemahan rasmi, diterjemahkan oleh Asklegal): ""Di mana seorang pekerja ... menganggap bahawa dia telah diberhentikan tanpa sebab atau alasan oleh majikannya, dia boleh membuat perwakilan secara bertulis kepada Ketua Pengarah untuk mendapatkan semua kerjanya ..."" Jadinya di sini, kalau anda sakit sebab kena cacar air atau patah tulang – dan perlu cuti lebih dari sehari sebab nak tunggu sembuh, majikan anda tak boleh memecat anda macam tu je. Sebabnya, anda masih ada hak mendapat cuti sakit dengan MC dari doktor. [BACA LAGI: Can Malaysian bosses fire you for being pregnant?] Tapi, macam mana untuk penyakit yang tak boleh disembuhkan? Memecat pekerja yang sakit adalah pilihan terakhir, tapi itu masih lagi pilihan Kalau anda diserang strok atau lumpuh, ia dah pasti akan menghalang anda dari bekerja. Situasi ni juga jadi tak adil untuk syarikat dan majikan, kalau mereka terus menggaji anda sebagai pekerja. Jadi dalam situasi sebegini, konsep Medical Board Out akan digunapakai. Majikan dibenarkan untuk memberhentikan pekerja mereka kerana alasan perubatan jika mereka boleh kemukakan faktor-faktor berikut: Sifat atau jenis penyakit yang dialami oleh pekerja. Tempoh ketidakhadiran semasa tempoh pemulihan. Impak ketidakhadiran kepada syarikat dan pekerja lain. Sifat kerja pekerja yang sakit. Ini cuma beberapa faktor yang majikan perlu buktikan, sebelum menamatkan kontrak pekerjaan anda. Tapi apa yang kita semua kena tahu, memecat pekerja mestilah jadi pilihan terakhir. Ini kerana, mahkamah pernah mencadangkan alternatif melalui kes undang-undang. Dalam kes MHS Aviation Sdn. Bhd. v Zainol Akmar Mohd Noor, seorang pekerja bernama Zainol Akmar dah dipecat selepas dia disahkan menghidapi serangan jantung. Mahkamah kemudianya buat keputusan yang pemecatan tu tak adil. Ini kerana, syarikat tak buat sebarang soal selidik tentang penyakitnya, dan terus anggap yang penyakit Zainol tu kekal, tanpa berikannya masa untuk pulih. Mahkamah juga kata, perlu adanya keseimbangan antara kebimbangan syarikat dengan pemulihan pekerja. Kalau pekerja boleh sihat semula dan kembali bekerja, tak ada sebab untuk dia dipecat. Dalam kes lain: Gopalakrishnan A/L Vasupillai v Goodyear Malaysia Berhad and Anor, pekerja ini mengalami kecederaan lutut berulang. Dia kemudiannya diberhentikan atas alasan perubatan, walaupun dah bekerja di syarikat tu selama 11 tahun. Hakim dalam kes ini menyatakan: “Majikan dalam kes ‘medical boarding out’ diharapkan bertindak secara munasabah… dengan kewajiban kesedaran sosialnya, dan harus menawarkan pekerjaan alternatif kepada pekerja itu, walaupun ia mungkin pekerjaan dengan bayaran lebih rendah...” Pada asasnya, majikan patut mencuba dan menyediakan alternatif untuk pekerja mereka yang sakit. Ia mungkin melibatkan penurunan pangkat, selagi mana pekerja sanggup untuk terus bekerja. Tapi, kalau anda pernah dipecat secara tak adil… Anda boleh saman majikan dan syarikat anda Jadi, kalau anda rasa telah dipecat secara tak adil hanya kerana anda sakit, anda sebenarnya boleh bawa kes ni ke Mahkamah Perusahaan. Ini kerana, Seksyen 30(5) Akta Perhubungan Perusahaan 1967 menyatakan (tiada terjemahan rasmi, diterjemahkan oleh Asklegal): “Mahkamah hendaklah bertindak mengikut ekuiti, hati nurani yang baik dan merit penting kes tanpa mengambil kira bidang teknikal dan undang-undang.” Pada asasnya, mahkamah akan mengambil kira kebajikan pekerja yang dah dipecat secara tak adil. Tapi apa yang anda kena ingat adalah, aduan tu mesti dibuat dalam tempoh 60 hari selepas dipecat. Anda boleh tengok macam mana prosedurnya dalam garis panduan ini. [BACA LAGI: My boss just fired me for no reason, what can I do now?] Kalau mahkamah dapati yang anda telah dipecat secara tidak adil, anda akan menerima manfaat-manfaat tertentu. Pekerja yang dipecat secara tak adil berhak menuntut apa yang dinyatakan di bawah Peraturan Kerja (Faedah-faedah Penamatan dan Rentikerja Sentara) 1980. Bagaimanapun, ada sesetengah syarikat yang mempunyai polisi dan peraturan mereka sendiri tentang faedah penamatan kerja. Jadinya, apa yang terbaik – periksalah dengan syarikat anda dulu."
"Ini hak-hak anda sebagai pekerja asing di Malaysia Kalau anda ditahan oleh mana-mana Pihak Berkuasa Malaysia, ada beberapa peraturan dan undang-undang yang anda dan pihak berkuasa perlu patuhi. Berikut adalah panduan tentang apa yang anda perlu lakukan ketika ditangkap dan ditahan, bersama dengan hak-hak anda sebagai pekerja asing di Malaysia. 1. Bawa dokumen asal anda bersama Bawa pasport atau kad UNCHR anda bersama. Pastikan ia adalah dokumen asal. Jika pasport anda di imigresan untuk diperbaharui, bawa salinan (fotokopi) dan surat daripada majikan anda yang menjelaskan alasannya. Jika diberhentikan oleh pihak berkuasa, perkenalkan diri anda dan jelaskan mengapa anda berada di Malaysia (sama ada untuk bekerja atau bercuti). Jika pihak berkuasa itu adalah pegawai polis, ambil maklumat ini: Nama atau nombor pegawai berkenaan Jenis uniform yang dipakai oleh pegawai berkenaan – (ini untuk kenal pasti pihak berkuasa mana yang terlibat) 2. Jika anda diberhentikan oleh pihak polis Mana-mana pegawai penguatkuasa boleh memberhentikan anda di tempat awam. Tapi, penahanan selalunya dilakukan oleh pegawai polis. Cuma dalam keadaan tertentu, Ketua Kampung ada kuasa untuk menahan anda. Tanya mereka dengan sopan, kenapa mereka menahan anda. Minta dengan sopan supaya pegawai itu menunjukkan identitinya (Kad Polis) Kad berwarna biru adalah untuk inspektor dan ke atas. Berwarna merah pula bermaksud pegawai itu digantung tugas dan dia tak ada kuasa terhadap anda. (Dalam situasi begini, lebih selamat untuk anda pergi dari situ). Warna lain untuk dikenal pasti: Kad Kuning: Di bawah pangkat Inspektor Kad Putih: Polis simpanan Selepas menahan anda, mereka mesti menghantar anda ke Balai Polis berdekatan secepat mungkin. Pegawai polis boleh menahan anda tanpa waran untuk jenayah serius. Tapi kalau jenayah itu kurang serius, mereka mesti mempunyai waran tangkap. 3. Soalan-soalan yang pegawai polis boleh tanya Pihak polis sebenarnya boleh bertanya sebarang soalan yang mereka rasakan releven. Ini adalah 3 soalan yang biasanya ditanya: Boleh saya lihat dokumen asal? Apa nama penuh anda? Apa alamat penuh anda? Jika anda rasa tak selesa untuk menjawab soalan-soalan selain di atas, anda ada hak untuk berdiam diri. Jika polis tak menahan anda, anda boleh pergi dari situ. (Perhatian: Kadang kala, dengan berdiam diri, ia juga berisiko menambahkan lagi tekanan) Tapi, kalau anda diminta untuk ikut polis ke balai, anda mesti ikut mereka kerana ia adalah prosedur standard. Tapi anda masih boleh tanya – mengapa anda dibawa ke balai. 4. Butiran yang perlu diberikan SELEPAS ditahan Apa yang anda harus berikan kepada polis adalah: Nama penuh anda (seperti yang ada dalam pasport) Nombor pasport anda Butiran majikan anda, dan; Butir-butir kenalan dan saudara mara yang boleh dihubungi. 5. Anda boleh hubungi orang yang anda percaya, jika anda ditangkap atau ditahan Anda sebenarnya ada hak untuk menghubungi saudara terdekat, kedutaan negara, peguam atau mana-mana NGO seperti Tenaganita. Anda boleh menghubungi Tenaganita di talian hotline 24 jam mereka: Hotline 1: +6012 335 0512 Hotline 2: +6012 339 5350 Pastikan juga anda sediakan maklumat kepada orang/agensi yang anda hubungi: Lokasi semasa anda (cth: balai polis, tempat tahanan, etc) Nama pegawai penyiasat Masa dan tempat ditahan PERHATIAN: Mungkin lebih mudah hubungi kawan dan minta dia hubungi Tenaganita. Anda hanya boleh ditahan maksimum selama 14 hari. Selepas tempoh itu, anda mesti dibawa ke mahkamah untuk didakwa, jika anda didapati terlibat dalam jenayah. Jika anda didapati bersalah, anda mungkin akan ditahan lebih lama lagi di Pusat Tahanan, sehingga anda dihantar pulang. 6. Jika pemeriksaan badan dijalankan Pihak polis hanya boleh menjalankan pemeriksaan badan dalam 2 situasi: Bila mereka mengesyaki adanya bukti jenayah Selepas anda ditahan Anda ada hak untuk minta pemeriksaan badan dilakukan secara tertutup, dan secara profesional. Jika anda seorang wanita, pemeriksaan itu mestilah dilakukan oleh pegawai polis wanita. 7. Keselamatan barangan anda semasa ditahan Barangan peribadi anda seperti telefon bimbit, dompet dan sebagainya, mestilah diserahkan kembali kepada anda, sejurus selepas anda dibebaskan. Polis mesti membuat rekod dan meletakkan semua barang peribadi anda dalam penjagaan yang baik. Buat nota barangan peribadi anda yang telah diserahkan kepada polis. 8. Minta jurubahasa di mahkamah Jika anda tak faham apa yang dikatakan oleh pegawai polis atau dakwaan yang dibacakan di mahkamah, anda mesti beritahu perkara itu dan minta penterjemah/jurubahasa. Jangan mengaku bersalah di mahkamah, jika anda tak faham pertuduhan. Mintalah untuk bercakap dengan peguam atau NGO seperti Tenaganita. Anda boleh menghubungi Tenaganita di talian hotline 24 jam mereka: Hotline 1: +6012 335 0512 Hotline 2: +6012 339 5350"
"Here are your rights as a migrant worker in Malaysia If you are stopped by any Malaysian Enforcement Authority, there are certain rules and regulations that you and the authorities must follow. Here’s a guide on what to do during arrest and detention, along with your rights as a migrant worker in Malaysia. 1. Carry your original documents with you Carry your passport or UNCHR card with you. Make sure it is the original document. If your passport is at immigration for renewal, carry a photocopy and a letter from your employer explaining the reason. If stopped by the authorities, introduce yourself and explain why you are in Malaysia (work or leisure purpose). If the authority is a police officer, take note of: The officer’s name/number The type of uniform worn by the officer(s) – (this is to check which authority is involved) 2. If you are stopped by the police Any enforcement officer can stop you in public. Arrests would normally be done by police officers. Only in some circumstances, the Head of the village has power to arrest you. Ask them politely why they are arresting you. Ask politely for identification (Police Card). Blue card ranks are for inspector and above. Red card means the Officer is suspended and has no authority over you. (In this situation, it’s safe to walk away) Other colours to identify: Yellow Card: Below the rank of Inspector White Card: Reserve police After arresting you, they must send you to the nearest police station immediately. Police officers can arrest you without a warrant for serious crimes, if it’s a less serious crime, they must have an arrest warrant. 3. Questions the police can ask The police can ask you any question that they think is relevant. Here are 3 common questions asked: Can I see your original documents? What is your full name? What is your full address? If you’re not comfortable answering any other question apart from the above, you have the right to remain silent. If the police does not arrest you, you can walk away. (Note: Sometimes by remaining silent, there may be the risk of further forms of pressure) But, if you’re asked to follow the police to the station, you must follow him/her as it is the standard procedure. But you can ask politely on why you’re being taken to the station. 4. Details to provide AFTER being arrested You should provide the police with: Your full name (as stated in your passport) Your passport number Details of your employer and; Any contact details of relatives and family. 5. You can call someone you trust if you’re arrested or detained You have the right to request to call your close relatives, the embassy of your country, a lawyer or any NGOs such as Tenaganita. You can contact Tenaganita via their 24-hour hotline numbers: Hotline 1: +6012 335 0512 Hotline 2: +6012 339 5350 Make sure you provide the following information to the person/agency you’re calling: Your current location (eg: police station, detention centre, etc.) Name of the Investigation officer Time and place of arrest NOTE: It may be easier to call a friend and ask him to contact Tenaganita. You can only be detained for a maximum of 14 days. After that period, you must be brought to court to be charged, if you’re found to be involved in a crime. If found guilty, you may be detained longer in a Detention Centre until you’re deported. 6. If a body search is conducted The police can only conduct a body search on you in 2 situations: When they suspect there’s evidence of a crime After you’ve been arrested. You have the right to ask for the search to be done in private, and in a professional manner. If you are female, the search must be done by a female police officer. 7. The safety of your belongings during arrest Your personal belongings such as your phone, wallet etc. must be returned to you once you have been released. The police must make a record and put all your personal belongings in safe custody. Make a note of your personal belongings that have been handed to the police. 8. Ask for a translator in court If you do not understand the police officer or the charge being read to you in court, you must indicate so and ask for a translator. Do not plead guilty in court if you don’t understand what the charge is—ask to speak to a lawyer or NGO such as Tenaganita. You can get in touch with Tenaganita via their 24-hour hotline numbers: Hotline 1: +6012 335 0512 Hotline 2: +6012 339 5350"
"Kalau tukar rumah jadi Airbnb, kamu boleh didenda Majlis Perbandaran [Click here for English version] Korang mesti pernah dengar pasal Airbnb atau pernah guna perhidmatan ni. Secara mudahnya, Airbnb adalah satu laman web yang membolehkan orang ramai senaraikan rumah mereka, dan orang yang berminat pula boleh tempah rumah tu untuk jangka masa pendek. Konsep Airbnb ni agak sama dengan hotel, cumanya dari sewa satu bilik, korang boleh sewa keseluruhan rumah atau unit kondominium dengan harga yang berpatutan. Maknanya, korang bolehlah buat duit lebih dengan Airbnb ni. Walaupun begitu, masih ada berita baik dan buruk pasal laman web ni. Berita baiknya, Airbnb tak menyalahi undang-undang Malaysia dan korang boleh je iklankan rumah korang di laman webnya. Yang buruknya pula, pihak berkuasa tempatan dan pengurusan kondominium ada kuasa untuk denda korang sebab buat perniagaan Airbnb. Tapi, kalau ia tak menyalahi undang-undang, kenapa pula pihak berkuasa tempatan boleh denda korang yang terlibat dengan Airbnb? Sebabnya, Airbnb hanya sah di beberapa negeri Mari kita mula dengan pandangan luas dulu. Sebenarnya, tak ada undang-undang spesifik di Malaysia pasal Airbnb ni. Bagaimanapun, sahnya Airbnb diterangkan oleh Kementerian Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan, bahawa Airbnb adalah transaksi dalam talian dan perjanjian di antara tuan rumah dan pelancong. Pada dasarnya, ia hanyalah satu persetujuan antara dua pihak yang dihubungkan melalui laman web dan saling bersetuju untuk menyewakan hartanah mereka untuk beberapa hari. Tapi, walaupun tak ada undang-undang Persekutuan terhadap Airbnb ini, ia sebenarnya dikawal selia oleh kerajaan tempatan di setiap negeri. Contohnya, kerajaan negeri Sabah dah tetapkan yang semua unit/rumah Airbnb sebagai menyalahi undang-undang. Bekas Pembantu Menteri Pelancongan Kebudayaan dan Alam Sekitar Sabah, Datuk Pang Yuk Ming mengatakan: “Airbnb adalah (dianggap) perniagaan, tetapi jika pangsapuri dibina sebagai harta kediaman, ia tidak boleh digunakan untuk tujuan komersil. Dewan Bandaraya Kota Kinabalu telah mengambil langkah yang betul (melarang Airbnb),” – Datuk Pang Yuk Ming, katanya dipetik dari New Straits Times. Jadinya, sebab utama di sebalik pengharaman Airbnb di Sabah ni adalah untuk melindungi industri hotel dari perkembangan pesat Airbnb. Bagaimanapun, baru-baru ni ada juga laporan yang kata – kerajaan negeri sedang menimbangkan untuk merangka semula garis panduan mengawal selia trend baru ini. Walaupun kebanyakan negeri masih lagi belum mengharamkan Airbnb secara terang-terangan, namun, pihak berkuasa tempatan yang lain di seluruh Malaysia ada juga perkenalkan cara-cara baru untuk mengawal selia – sewa jangka pendek di Malaysia ini. DBKL sebagai contoh, menggalakkan pemilik hartanah untuk mendaftarkan kediaman mereka secara dalam talian. Kalau korang merancang nak sewakan rumah bertanah (landed property) untuk Airbnb, pendaftarannya agak mudah. Tapi, kalau rumah korang hartanah strata… halnya mungkin agak rumit sikit. Malah, dengan pembinaan pesat kondominium di sekitar Lembah Klang, DBKL dah mewakilkan kuasanya kepada pengurusan kediaman dalam hal peraturan – terutamanya untuk hartanah strata (seperti kondominium dan pangsapuri). [BACA LAGI: The difference between strata title vs individual title] Pengurusan kondominium sekarang boleh tetapkan ""peraturan rumah"" kepada pemilik hartanah Kalau korang ada unit kondominium dan rasa korang ada segala hak dengannya, korang kena fikirkan semula. Sebab, walaupun korang pemilik unit tersebut, korang masih terikat denngan “peraturan rumah’” tertentu yang ditetapkan oleh pihak pengurusan kondominium. Kesemua kondominium, pangsapuri dan kemuniti berpagar ada undang-undang strata yang bertindak ke atas mereka – yang mana memberikan pihak pengurusan kuasa untuk menetapkan peraturan dan kaedah tertentu kepada pemilik unit. Ini kerana, hartanah strata selalunya datang dengan kemudahan sama seperti – kolam renang, rumah kelab dan gim yang dikongsi oleh semua penghuni bangunan. Di samping kuasa yang diwakilkan dari pihak berkuasa tempatan, kuasa pengurusan kondominium juga dinyatakan di bawah Seksyen 32 (3) Akta Pengurusan Strata 2013: “Badan pengurusan bersama boleh, melalui suatu ketetapan khas, membuat undang-undang kecil tambahan atau membuat pindaan kepada undang-undang kecil tambahan itu, yang selaras dengan undang-undang kecil yang ditetapkan oleh peraturan-peraturan... bagi mengawal selia kawalan, pengurusan, pentadbiran, penggunaan dan penikmatan bangunan atau tanah yang dicadangkan untuk dipecah bahagi kepada petak-petak dan harta bersama, termasuk kesemua atau mana-mana perkara yang berikut.” Seperti yang dinyatakan di atas, DBKL dah mewakilkan kuasanya kepada pihak pengurusan untuk mengawal selia kondominium dengan undang-undang kecil. Tapi, disebabkan kuasa juga disebut dalam akta ini, maknanya – walaupun korang tinggal di luar KL, undang-undang masih terpakai kepada korang. Jadi pada asasnya, pihak pengurusan kondominium mempunyai hak membuat undang-undang kecil untuk menghalang pemilik dari jadikan unit mereka kepada Airbnb. Tapi, macam mana mereka kenakan peraturan ini kepada pemilik unit? Kamu boleh didenda sehingga… RM200 Selain boleh kenakan undang-undang kecil, pihak pengurusan juga ada kuasa untuk kenakan denda kepada pemilik rumah yang melanggar undang-udang kecil tersebut. Hal ini berdasarkan Seksyen 32(3)(i) dalam Akta yang menyatakan: “Pengenaan denda yang tidak melebihi dua ratus ringgit terhadap mana-mana pemunya petak, penghuni atau jemputan yang melanggari mana-mana undang undang kecil.” Berdasarkan Akta ini, pihak pengurusan kondominium ada hak untuk mendenda tuan rumah atau tetamu yang datang tak lebih dari RM200 kerana melanggar undang-undang kecil. Tapi, ada perkara menarik pasal undang-undang ni. Sebabnya, ia hanya benarkan pihak pengurusan saman korang SEKALI SAJA untuk kesalahan itu. Perkara ni boleh kita jumpa dalam kes – Verve Suites Mont’ Kiara Management Corp v Salil & Ors. Mahkamah di sini menjelaskan, pihak pengurusan kondominium tak boleh mendenda pemilik unit setiap hari atas sebarang pelanggaran undang-undang kecil. Senarionya macam ni – korang sewakan unit untuk Airbnb selama 3 hari, sedangkan pihak pengurusan tak benarkan perkara itu. Bila mereka dapat tahu, mereka pun denda korang RM200, untuk setiap tiga hari tu. Kalau hal macam ni jadi, pihak pengurusan nampaknya dah lakukan kesalahan sebab mendenda melebihi jumlah yang ditetapkan oleh undang-undang. Sesetengah daripada kita mungkin terfikir nak ambil kesempatan dari undang-undang ni dan tutup kos denda dengan terus sewakan unit kondominium melalui Airbnb. Kalau korang ada terfikir nak buat macam ni, korang juga kena tahu yang mahkamah boleh halang korang dari buatnya lagi (dengan berikan injunksi) yang mungkin menghalang korang dari mengendalikan Airbnb selama sekurang-kurangnya 7 hari – itu pada dasarnya penghakiman yang diberikan oleh mahkamah dalam kes ini. Jadinya, mungkin cara yang terbaik yang korang boleh buat adalah periksa dulu dengan pihak berkuasa tempatan dan pengurusan kondominium sebelum tukar unit korang jadi Airbnb. Kalau semuanya okey, bolehlah korang iklankan unit korang tu untuk disewa oleh pengguna Airbnb! [BACA LAGI: Have you ever bought a house in Malaysia and had no idea what you signed?] [BACA LAGI: Can condo managements in Malaysia be sued for letting your condo become run down?]"
"Can Malaysian companies fire you for misbehaving after office hours? Most of us believe this: what we do outside of work is our business, not our company’s business. We just have to be responsible from the time we clock in till we clock out. But what if you did something bad? Maybe you got into a fight and it was recorded and shared online. Or you got drunk and smashed up the bar. Or worse, both. But hey, you think, at least you didn’t do it at work. Then, to your surprise, your boss fires you. Somehow, the video of you going crazy outside work reached your boss. He tells you that he has no choice—you’ve damaged the company’s reputation. You argue that it’s unfair as you didn’t commit the misconduct during work. Your boss refuses to listen and you find yourself jobless and cashless now. But can you really be fired for misconduct after work in Malaysia? You can be fired if you damage the company’s name If an employee did something illegal after working hours, companies have the right to take action. According to the executive director of Malaysian Employers Federation: “Even if the misconduct is outside office hours, and outside company premises, it doesn’t really matter, the company can take action because it brings disrepute to the company.” – Datuk Shamsuddin Bardan, MEF. [READ MORE: Is there freedom of speech in Malaysia if you can get arrested for Facebook posts?] Companies can only fire an employee if they can show that the company’s reputation is also at stake. For instance, if you wore your company shirt and committed a crime—your company too might come under the light. The company must prove on a balance of probabilities, if their good name is affected or not. In Perwira Habib Bank Bhd v Yusoff bin Zakaria (1995), the court stated that dismissal depends on two things: The nature of the employee’s job The misconduct in question In this case the employee, a bank manager, was engaged in an illegal get-rich scheme outside office hours. Since he was a senior branch manager, the court held that the employer’s decision to fire him was valid. His conduct was not only disrupting his day-to-day job, but also putting the company’s reputation at stake. So, a misconduct after work can get you fired. But does your boss have to notify you beforehand? Your boss can fire you immediately You might think that your boss will give you some sort of notice before firing you. But there is no need to give an employee notice before firing him for misconduct. Section 14 of the Employment Act 1955 states this: “(1) An employer may, on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of his service, after due inquiry (a) dismiss without notice the employee;” But before dismissing an employee, the company must give valid reasons behind the firing. Not all misconducts warrant a termination. The company must establish that it was a serious misconduct before firing an employee. Basically, if you put the company’s reputation at stake—you can be fired. Here’s a non-exhaustive list of valid reasons to be fired: Dishonesty (cheating) or stealing at work Sexual harassment Intoxicated or being under the influence of illegal drugs Prolonged absence from work without leave Committing criminal offences ie. assault or bribery Apart from this, less serious misconducts might be dealt with differently. So, what happens if you’re fired for a less serious one? You can sue your boss and your company Your boss must give you a fair reason for firing you. This is called termination with ‘just cause and excuse’. If your boss fires you for no reason, or a less serious reason—you can bring your case to court. [READ MORE: My boss just fired me for no reason, what can I do now?] Any employee who feels that he has been unfairly fired, can request for his job back. This is stated under Section 20(3) of the Industrial Relations Act 1967: ""Where a workman...considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment..."" You can file a case with the Director General of the Industrial court, within 60 days of dismissal to challenge your termination. If the court finds that you have been unfairly fired, you’re entitled to certain benefits. Employees who have been unfairly fired are entitled to claims stated under the Employment (Termination and Lay-off Benefits) Regulations 1980. However, some companies have their own policies and regulations on termination benefits. Perhaps, it’s best to check with your company on policies and...try not to get into any mischief after work ;)"
"Your company not paying your EPF? Here’s what you can do You got a new job and everything’s going great. You’re settled in, the pay’s pretty good, and you can finally save up for that new house in Bangsar that you’ve been eyeing. You hear that you can actually use your EPF Akaun 2 to finance the house, so you check how much you’ve accumulated so far and…... It’s so much lesser than it’s supposed to be. You check with KWSP and find out that, your company hasn’t been contributing their part into your EPF fund. But you’re not the only one as there are many cases of companies doing this. So, what can you actually do? Before we get into that, let’s understand what is required of an employer with regard to your KWSP fund. All companies must pay EPF for their employees Basically, all employees and employers are required to contribute to their respective EPF funds aka KWSP funds. Section 43(1) of the Employees Provident Fund 1991 (EPF Act 1991) states that: “Subject to the provisions of section 52, every employee and every employer of a person who is an employee within the meaning of this Act shall be liable to pay monthly contributions on the amount of wages at the rate respectively set out in the Third Schedule. How do you know if you qualify for EPF contribution? When we look at the EPF act, the qualification to get EPF is actually broader than we’d expect. Under Section 2 of the EPF Act 1991: “A person who is employed under a contract of service or apprenticeship. The contract of service or apprenticeship can be written or verbal, expressed or implied.” So even a verbal agreement between you and your employer would be a valid employment contract. As long as it is understood to be a contract of service, you would qualify for EPF contribution. At the end of the day, it’s still safer to have a written hard copy of your employment contract. [READ MORE: Is an unwritten promise legally binding?] Perhaps it is important to note a small, but major difference in employment contracts. There are two types. Contract OF service Contract FOR service They may sound similar, but it makes a big difference to your contract. In a contract OF service, both parties agree to have an employer-employee relationship. In this arrangement, the employee agrees to be of service to their employer. This applies to our usual full-time contracts and even part-time contracts. But a contract FOR service is different. This is more of a client-contractor type of relationship where the contractor here would be an independent one who agrees to provide a type of service to the client and would not be considered as an employee. This applies to freelancer / freelance contracts. To qualify for EPF contribution, your employment contract must be one that is a contract OF service as required by the law stated above. [READ MORE: Are part-time promoters protected by labour laws in Malaysia?] For part-timers, you have to earn more than RM10 per hour in order to qualify for EPF contribution but do ensure that your contract is a contract of service. So if you’re employed under a contract of service, regardless if you are a full-timer or part-timer, you and your employer are required to contribute to your EPF fund. What are the mandatory EPF contributions? While every employer and employee must make EPF contributions, the employer must make the monthly payment on or before the 15th of every month. The mandatory contribution required varies depending on the employee’s salary. If you’re below the age of 60 and you’re earning above RM5,000.00 per month, you’re required to contribute 11% of your monthly salary while your employer would be required to contribute 12%. On the other hand, if you’re below the age of 60 and you’re earning RM5,000.00 and below per month, your’re still required to contribute 11% of your monthly salary but your employer would be required to contribute 13% instead. If you’re an employee who is above the age of 60, you generally don’t have to contribute to your EPF but your employer MUST contribute 4% of your salary regardless of how much your salary is. What if your employer hasn’t been paying your EPF? Right of the bat, if you do find out that your employer hasn’t been paying your EPF, your employer can be charged. Under Section 43(2) of the EPF Act 1991: Any employer who fails to make contribution on or before the 15th of every month shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine not exceeding ten thousand ringgit or to both. This essentially means that your employer can either be jailed up to 3 years, fined not more than RM10,000, or both. However, the punishment is different for larger companies where, instead of one single employer, you may instead have multiple directors, partners, or associates. In this situation, they may face bankruptcy, have their assets confiscated, and have their passport confiscated. There have been instances where employers would deduct your EPF contributions but not actually make any payments to your account (essentially stealing from you). If this happens, and if they’re found guilty of it, they can be jailed for up to 6 years and/or fined up to RM20,000 under Section 48(3) of the EPF Act .In addition to that, employers would also be liable to pay late payment charges and dividend to the Fund under Section 45 of the EPF Act 1991 for unpaid outstanding contributions. This is like paying a late penalty or a fine. How do you file a complaint? If you suspect your company hasn’t actually been contributing to your EPF fund, you should always first check your pay slip and your EPF account if contributions were and have been made on time. The easiest way is to check your salary slip, where your deductions and your employer’s contributions will be recorded. If your company doesn’t give you a salary slip, that’s an offence as well under Section 42(1) EPF Act 1991! But as we mentioned, some employers have made deductions without actually depositing anything into your account, so it’s probably best that you check your EPF account balance every once in a while. You can do this by logging on to your i-Akaun on the KWSP website or their mobile app which is available on both the Google Play Store and App Store. You could also walk in to any one of the KWSP branches for assistance with your EPF account. As you can see, the laws surrounding the contribution of EPF by employers are relatively strict. If you do face such a situation of your employer not contributing to your EPF fund, you can always file a complaint by: Filling it on their website itself, Calling their hotline at 03-8922 6000 Walking in to any one of their branches – A list of their branches can be found HERE. So always remember to keep checking your EPF account to ensure your EPF contribution is being credited every month."
"Can Malaysian companies fire you for taking too many MC? Imagine this: You’ve dedicated 8 years of your life to your job. You love your job, you love your company...but things weren’t the same after you got your medical test results. You’ve been diagnosed with stomach cancer. You have a choice now to take extended leave for 6 months—or to quit your job. But considering the medical costs, resigning would probably kill you faster. However, your boss has other plans for you. He calls you up and says that he has no choice but to fire you. He adds on to say, that the company will suffer losses if they let you go on sick leave. Shocked, you wonder: Is it legal for your boss to fire you when you’re sick? Your boss can’t fire you for taking MC As an employee, you’re entitled to medical leave if you’re not feeling well. Section 60F of the Employment Act 1955 states as such: “(1) An employee shall, after examination at the expense of the employer...be entitled to paid sick leave...where no hospitalization is necessary.” Every employee is entitled to a minimum of 14 days of sick leave per year (If you’ve worked less than 2 years). The total number of sick leaves you can take would increase over the years you work. [READ MORE: 5 types of leave in Malaysia (and if you will be paid when you take them)] The Act further states that you need to get an MC from the doctor in order to apply for sick leave. But there may be circumstances where you can’t get one (if distance is a problem for instance). If that’s the case, your boss still cannot fire you or take action, because you’re entitled to take sick leave under reasonable circumstances. But what if you need to be on sick leave for more than a day? Well bad news for your boss, he can’t fire you for it either. Section 20 of the Industrial Relations Act 1967 protects employees against unfair dismissals: “Where a workman...considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment…” So if you’ve been diagnosed with an illness such, as chicken pox or a broken bone—and you need more than just a day to recover from it, your boss cannot fire you for it. You’d still be entitled to sick leave with a MC from the doctor. [READ MORE: Can Malaysian bosses fire you for being pregnant?] But how does it work for illnesses that you can’t recover from? Firing a sick employee is the last option, but still an option Having a stroke or being paralysed might put you out of employment. This can be unfair to your boss and your company as well to keep paying you as their employee. So in situations like this, the ‘Medical Board Out’ concept applies. Employers are allowed to terminate their employees due to medical reasons if they can establish certain factors: The nature or type of illness suffered by the employee. The length of absence during the recovery period. The impact of the absence to the company and other employees. The nature of the sick employee’s job These are just some of the factors an employer must prove, before terminating the contract with his employee. Firing an employee should always be the last option. Which is why, the courts have suggested alternatives via case laws. In MHS Aviation Sdn. Bhd. v Zainol Akmar Mohd Noor, the employee, Zainol Akmar, was dismissed after he was diagnosed with acute inferior and posterior myocardial infarction a heart attack. The court decided that the dismissal was unfair. The company did not make any inquiries into his illness, and just assumed that Zainol’s illness was permanent, without giving him time to recover. The court stated that there needs to be a balance between the employer’s company concerns and the employee’s recovery. If the employee can recover and come back to work, there is no need to dismiss him. Here’s another case: In Gopalakrishnan A/L Vasupillai v Goodyear Malaysia Berhad and Anor, the employee suffered from a recurring knee injury. He was terminated on medical grounds, despite working at the company for 11 years. The judge in this case stated: “The employer in medical boarding out cases is expected to act reasonably...with its obligations of social consciousness, and should attempt to offer an alternative employment to the employee, even though it might be a lower paying job...” Basically, the employer should try and provide alternatives to the sick employee. This can even include a demotion, as long as the employee is willing to still work. But if you’ve ever been fired unfairly... You can sue your boss and your company So, if you feel that you have been unfairly terminated for being sick, you may bring a case to the Industrial Court. Section 30(5) of the Industrial Relations Act 1967 provides: “The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.” Basically, the court will take into account the welfare of employees who have been unfairly dismissed. But keep in mind, you have 60 days to file a complaint after being dismissed. You can check out how to do so, with this guide. [READ MORE: My boss just fired me for no reason, what can I do now?] If the court finds that you have been unfairly dismissed, you’re entitled to certain benefits. Employees who have been unfairly dismissed are entitled to claims stated under the Employment (Termination and Lay-off Benefits) Regulations 1980. However, some companies have their own policies and regulations on termination benefits. So, it would be best to check with your company first."
"Kena tipu beli barang online? Ini langkah untuk dapatkan keadilan dan duit balik [Click here for English version] Korang mesti pernah nampak post orang tak puas hati sebab kena tipu dengan peniaga dalam talian (online) di media sosial. Ceritanya macam biasalah, bila dah bayar, tunggu punya tungu, barang tak sampai-sampai. Bila kena tipu macam ni, semua orang mesti rasa sakit hati. Tapi masalahnya, masih ramai di antara kita yang tak berapa faham atau tak tahu macam mana nak berdepan dengan kes-kes sebegini. Tapi nasib baiklah, ada kaedah-kaedah yang korang boleh cuba untuk dapatkan duit korang balik. Namun, sebelum kita pergi ke kaedah-kaedah tu, seperti mana yang kita tahu, ada banyak cara orang berbelanja dalam talian. Tapi, kami kali ni cuma bagi fokus pada dua cara berbelanja dalam talian je, iaitu: Membeli terus dari platform dalam talian: seperti Lazada atau Shoppee. korang selalunya akan minta bayaran balik (refund) korang boleh bawa tindakan ke mahkamah tuntutan kecil korang boleh buat aduan kepada Tribunal Tuntutan Pengguna korang boleh buat laporan polis Membeli dari penjual bebas yang menggunakan laman pihak ketiga: seperti Facebook Marketplace atau Mudah korang boleh bawa tindakan ke mahkamah tuntutan kecil korang boleh buat aduan kepada Tribunal Tuntutan Pengguna korang boleh buat laporan polis Jadinya, jom kita mula dulu dengan cara beli dari platform dalam talian dan benda pertama yang korang kena tahu adalah… 1. Kamu boleh dapat bayaran balik dari platform dalam talian Sebenarnya, agak mudah bila kita beli barang dari platform dalam talian, sebabnya mereka dah ada terma dan syarat sendiri. Jadi, apa yang kita kena buat untuk dapatkan duit kita balik adalah ikut apa yang dah dinyatakan dalam terma mereka. Contohnya, dia kata macam ni: ""Jika Penjual gagal untuk menghantar Barang mengikut Kontrak atau dalam waktu yang munasabah, Pembeli hendaklah, dengan memberikan notis bertulis kepada penjual, berhak untuk menuntut tindakan dalam masa yang ditetapkan selepas itu dan masa yang ditetapkan itu hendaklah tidak kurang dari 14 hari. Jika penjual gagal berbuat demikian dalam masa yang ditetapkan, Pembeli berhak untuk menamatkan Kontrak dan menuntut bayaran balik berkenaan dengan Barang yang tidak dihantar.” – Contoh terma dan syarat dari platform dalam talian. Tapi, macam mana kalau platform ni tak menghormati terma dan syarat mereka? Di sinilah kita akan ambil jalan undang-undang untuk dapatkan duit kita balik. Walaupun kemungkinan besar platform ni akan menghormati polisi mereka, keadaan mungkin agak berbeza dengan penjual bebas yang iklankan produk mereka di Facebook Marketplace atau laman media sosial mereka. Jadinya, pilihan di bawah ni lebih berkaitan dengan penjual bebas, tapi ia juga boleh digunakan untuk platform membeli-belah dalam talian jika perlu. 2. Mahkamah Tuntutan Kecil – RM5,000 Kalau korang pilih cara ni untuk dapatkan duit korang balik, korang secara teknikalnya akan saman penjual dalam talian yang dah melanggar kontrak. Bila cakap pasal kontrak, korang mesti terfikir, kontrak ni dokumen yang agak rumit dan ia perlukan tandatangan korang. Sebenarnya, kontrak juga merangkumi situasi mudah seperti beli dan jual. Bila korang setuju bayar penjual sebagai tukaran barangan yang akan dihantar, ia dikira sebagai kontrak. Jadi, kalau penjual tu gagal bagi barang yang dah dibeli, ini bermakna dia dah melanggar kontrak. Oleh itu, kes macam ni boleh dibawa ke mahkamah tuntutan kecil. Sesuai dengan namanya, mahkamah ni hanya kendalikan kes di bawah RM5,000. Prosedur mahkamah ni pun senang je dan korang tak payah ada peguam. Sebenarnya, kami pernah terangkan pasal prosedur nak mulakan kes di mahkamah tuntutan kecil sebelum ni, korang boleh klik pautan di bawah kalau nak baca. [BACA LAGI: How to file a claim in a small claims court] Jadi, sebaik sahaja korang ikut prosedur untuk memulakan kes, ini adalah perkara paling penting yang korang kena tunjukkan kepada hakim: Pertama, korang kena buktikan adanya kontrak antara korang dan penjual. Korang boleh buktikan hal ini, dengan tunjukkan screenshot teks antara korang dan penjual, atau cetak pengesahan pesanan. Kedua, korang kena buktikan yang penjual tak hantar barang kepada korang. Sebagai contoh, korang tunjukkan screenshot teks korang yang tanya penjual mana barang korang, atau dengan kegagalan penjual untuk tunjukkan resit pos. Tapi, seperti mana yang kitorang kata tadi, mahkamah tuntutan kecil hanya dengar kes yang kurang RM5,000. Jadi, kalau barang korang lebih dari nilai tu, korang boleh buat aduan kepada… 3. Tribunal tuntutan pengguna – RM25,000 Tribunal Tuntutan Pengguna Malaysia (TTPM) ni sebenarnya macam mahkamah juga, tapi ia diwujudkan untuk satu tujuan je, iaitu menangani pertikaian antara pembeli dan penjual. Nilai yang diuruskan oleh tribunal ni pula kurang daripada RM25,000. Kelebihan TTPM ni, selain ia menguruskan kes di bawah RM25,000, ia juga ada prosedur yang mudah nak diikuti. Apa yang korang kena buat adalah – isi borang dalam talian di sini dan bayar yuran pemprosessan RM5.00. Lepas tu, korang kena hantar dokumen tertentu kepada penjual, untuk maklumkan kepadanya yang korang dah buat aduan. Kemudianya, TTPM akan tetapkan tarikh pendengaran. Masa dekat TTPM nanti, akan ada orang yang uruskan kes dan jadi pengantara menyelesaikan kes antara korang dan penjual. Kalau korang dan penjual tak dapat setuju dengan penyelesaian yang ada, keputusan akan diberikan dan ia mungkin termasuklah meminta penjual memulangkan semula duit korang. Kalau korang tertanya-tanya sama ada korang boleh buat aduan kepada TTPM jika nilai barang kurang RM5,000, jawapannya YA. Malah, korang mungkin lebih suka dengan pilihan ni, sebab TTPM memang diwujudkan untuk masalah-masalah yang macam ni. Selain tu, untuk mahkamah tuntutan kecil, korang kena pergi ke mahkamah untuk isi borang, tapi untuk TTPM, korang boleh isi melalui dalam talian je. 4. Korang boleh buat laporan polis Sebelum kita teruskan dengan kaedah keempat ni, kami nak beritahu dulu yang korang mungkin tak akan dapat duit korang balik, tapi apa yang korang akan dapat adalah keadilan kalau buat laporan polis. Tapi dalam masa sama, korang masih ada hak untuk saman penjual atau buat aduan ke Tribunal Tuntutan Pengguna. Jadi, satu perkara yang kita kena tahu pasal penjual dalam talian yang penipu ni, mereka sebenarnya dah buat jenayah di bawah Seksyen 415, Kanun Keseksaan. Undang-undang ini secara amnya mengatakan, penjual yang berniat untuk menipu sejak dari mula lagi dan tak pernah ada niat hendak menghantar barang tu kepada pembeli, sebenarnya dah melakukan jenayah. Ini contoh, supaya korang boleh faham lagi. Ali buat iklan yang dia jual telefonnya dengan harga RM500 Ali dan Muthu setuju dengan jualan itu, dan Muthu pun masukkan RM500 ke akaun Ali Ali tak hantar telefon itu kepada Muthu ……. Muthu buat laporan polis terhadap Ali ….. Kalau ternyata Ali tak pernah bermaksud nak jual telefon tu, dan tawaran tu semua sebab nak ambil duit Muthu (atau orang lain) – Ali dah melakukan jenayah penipuan. Kalau ternyata Ali sebenarnya memang nak jual telefon tu, tapi lepas tu tukar fikiran – ia bukan jenayah, tapi melanggar kontrak. Dalam situasi Ali cuma melanggar kontrak, perkara paling mudah yang dia boleh buat adalah pulangkan balik duit yang dah dibayar tu. Kalau dah buat macam tu, tak jadi isu lagi la untuk mereka berdua. Tapi, kalau Ali tak pulangkan balik duit, macam mana PDRM buat keputusan – sama ada si penjual tu ada niat nak menipu? Sebenarnya mudah je polis nak siasat, tapi pihak yang mengadu kenalah tolong pihak polis dengan berikan bukti yang dia dah buat macam tu kepada orang lain juga sebelum ni. Atau tunjukkan teks antara korang dengan dia. Tapi, kalaulah PDRM tak dapat buat apa-apa sebab ia bukan jenayah, korang masih ada hak untuk saman atau buat aduan kepada TTPM. Tapi sekali lagi kami beritahu, kalau buat laporan polis, korang mungkin dapat keadilan, tapi tidak duit korang balik. Prosedur ni hanya berfungsi kalau korang tahu identiti penjual Dari semua prosedur yang diberitahu ni, ia sebenarnya hanya boleh berfungsi kalau korang kenal identiti penjual. Ada kemungkinan penjual dalam talian tu guna profil palsu bila nak iklankan barang mereka. Jadinya, kalau tak ada maklumat penting macam tu, agak sukar untuk tindakan diambil. Tambahan lagi. mungkin ada di antara korang yang pernah beli barang dari penjual luar negara atau platform luar negara (seperti – Amazon, Ebay dan sebagainya). Sama macam di atas, ia agak sukar nak ambil tindakan terhadap mereka, sebab mereka ni di luar bidang kuasa mahkamah dan PDRM. Bagaimanapun, kalau korang berdepan dengan keadaan macam ni, cara terbaik masih lagi buat laporan polis. Dan sebagai langkah awal, kita kenalah sentiasa behati-hati dalam setiap langkah kita, terutamanya bila membeli belah dalam talian. Oleh itu, sebaiknya pastikan dulu penjual tu ada reputasi yang baik dan butirannya boleh kita tengok dan nampak sah."
"Ini kisah macam mana Genting lawan Fox dan Disney untuk bina taman tema mereka [Click here for English version] Bila Genting tutup taman tema popular mereka pada September 2013, ia disambut dengan gembira. Bukan sebab kita benci dengan Genting, tapi sebab kita teruja dengan taman tema yang akan menggantikannya nanti. Ia adalah taman tema antarabangsa 20th Century Fox pertama di dunia! Pada mulanya, ia dijangka akan dibuka kepada orang ramai lepas tiga tahun, iaitu pada 2016. Tapi, kalau korang pernah pergi ke Genting sejak beberapa tahun kebelakangan ni, korang mesti perasan yang pembukaan taman tema ni dah ditangguhkan sejak 2016 lagi. Dan pada tahun ni, taman tema tu masih juga dalam pembinaan. Apa puncanya taman tema ni lambat sangat nak siap? Isu mata wang dan Fox rasa menyesal Bila 20th Century Fox dan Genting Malaysia buat perjanjian pada tahun 2013, semuanya macam terus-terang je. Mengikut perjanjian ini, Genting akan dapat hak guna tajuk-tajuk blockbuster Fox untuk permainan dan tarikan mereka. Fox pula akan dibayar yuran lesen tahunan dan royalti. Ini bermakna, kita nanti boleh nampak permainan yang dibina berdasarkan ‘Ice Age’, ‘Planet of the Apes’ dan ‘Life of Pi’. Tapi masalah lewat ni bermula bila adanya isu kewangan. Pada 2016, nilai Ringgit Malaysia (RM) terlalu lemah untuk rancangan ni diteruskan, jadi pembukaan taman tema terpaksa ditunda ke 2017. Pelaburan Genting pada asalnya sebanyak US$300 juta, tapi disebabkan nilai RM yang lemah, Genting kena tambah US$61 juta pada pelaburan asal. Kemudiannya, Fox pula rasa menyesal lepas buat rundingan dengan Genting. Sebabnya, mereka sedar yang mereka boleh minta lebih lagi dari yang sebelumnya. Fox menyesal dengan dua perkara: pertama, perjanjian itu tidak termasuk bahagian penjualan tiket; dan kedua, mereka rasa perjanjian tu di bawah harga pasaran. Malah, mereka juga ada terfikir nak batalkan perjanjian dengan Genting tu. CEO Fox, James Murdoch ada kata yang dia nak melabur dalam taman tema kepunyaan Fox sendiri, dari bagi lesen IP kepada Genting. Tapi, Fox tak boleh batalkan perjanjian tu, sebab dalam Memorandum Perjanjian mereka, satu-satunya cara Fox boleh membatalkan perjanjian adalah kalau Genting terlepas tarikh akhir (deadline). Jadi, untuk paksa rundingan semula dibuat, Fox buat taktik-taktik untuk melewatkan projek tu. Mereka buat macam tu pada Genting, supaya Genting terlepas tarikh akhir, dan mereka bolehlah tengok balik Memorandum Perjanjian. Bagaimanapun, Genting kata kelewatan tu bukan salah mereka. Genting kata mereka dah ‘kerja bersungguh-sungguh untuk buka taman tema tu secepat mungkin’, tapi Fox sedaya upaya nak projek tu ditangguhkan. Antara yang Genting dakwa Fox buat adalah: Fox kata Genting menggantikan salah satu vendor pilihannya kepada salah satu vendor Fox yang kurang memenuhi syarat Fox minta Genting tukar tema permainan 'Independence Day' kepada 'Percy Jackson'. Bila dah siap dibina, Fox minta Genting tukar balik ke ‘Independence Day’. Fox sentiasa buat komen yang samar tanpa memberi arahan yang tepat Semua permintaan Fox ni memakan masa Genting dan kesannya, pembukaan taman tema ditangguhkan. Tapi hal ni jadi lebih rumit lagi bila… Disney beli Fox, dan tak mahu taman tema dekat dengan kasino Masa semua hal ni jadi, Walt Disney tengah dalam proses nak ambil alih Fox. Bila Disney masuk, objektif mereka tak lagi nak buat rundingan kontrak semula, tapi nak tamatkan dan tarik diri dari perjanjian perlesenan sepenuhnya. Seperti mana yang kita semua tahu, Disney sentiasa konsisten dengan strategi jenama ‘mesra keluarga’ dan mereka juga melobi menentang pembukaan kasino berhampiran dengan taman tema Disney. Jadi, pembukaan taman Fox yang bersebelah dengan kasino Genting dah bertentangan dengan jenama mereka. Dan kalau taman tema ni siap, ia juga akan bersaing dengan taman tema Disney yang dah sedia ada di Asia. Fox lepas tu keluarkan notis, yang kata Genting dah terlepas tarikh akhir, dengan harapan dapat tamatkan kontrak. Genting rasa hal ni ‘konsisten dengan niat Disney nak tamatkan perjanjian’. Bagaimanapun, Genting dapati Disney dan Fox tak ada alasan yang kukuh untuk tarik diri dari perjanjian tu, dan dah melabur RM3.1 bilion dalam taman tema Fox. Jadi pada November 2018, Genting memfailkan saman RM4.2 bilion terhadap Disney dan Fox kerana melanggar dan mengganggu kontrak. Mereka bercadang nak kuatkuasakan semua hak mereka di bawah perjanjian, dan menuntut kos pelaburan taman tema tersebut. Tuntutan mahkamah Genting terhadap Fox dan Disney Untuk nak ringkaskan isu ini, kami ketengahkan hujah-hujah antara Genting vs Fox & Disney. Hujah Genting: Berdasarkan Memorandum Perjanjian, Genting boleh menamatkan kontrak atas apa-apa sebab, kalau mereka bayar yuran penamatan. Tapi, Fox hanya boleh tamatkan perjanjian atas keadaan tertentu, terumatanya kalau terlepas tarikh akhir. Hujah Fox: Genting dah terlepas tarikh akhir, terutamanya kegagalan mereka untuk buat ‘soft open’ taman pada Jun 2018. Ini memberi mereka hak untuk menamatkan kontrak. Genting lawan balik dengan kata: Tarikh akhir ‘soft open’ tu mustahil dicapai, sebab mereka kena bukanya dalam masa 30 hari dari notis. Ini mustahil, kerana kelewatan tu disebabkan oleh Fox sendiri, dan berbulan diperlukan untuk pemeriksaan keselamatan sebelum mereka boleh buat ‘soft open’. Genting juga nafikan yang Fox ada alasan untuk menamatkan perjanjian, dan Fox juga bertanggungjawab serta harus berkongsi apa-apa ganti rugi akibat penamatan. Tambah Genting, tindakan saman tu diambil sebab Fox dah melanggar kontrak dan melanggar perjanjian yang tersirat niat baik dan adil. Dengan kata lain, Fox dan Disney memang berniat nak melewatkan projek, dengan harapan mereka boleh buat rundingan semula atau batalkan perjanjian dengan Genting. Fox pula: Walt Disney dan 20th Century Fox menegaskan yang tuntutan mahkamah tu sepenuhnya tanpa merit dan menolak tuntutan berkenaan. Mereka mendakwa Genting yang salah, kerana mereka telah gagal untuk memenuhi tarikh akhir dan piawaian kualiti yang disepakati dalam perjanjian itu dari masa ke semasa. Lepas tu, Fox dan Disney memfailkan tuntutan balas terhadap Genting kerana melanggar kontrak. Jadi sekarang ni, mereka dah bertembung antara satu sama lain. Boleh ke keadaan kembali baik? Ya. Genting dan Disney selesaikan masalah di luar mahkamah Walaupun banyak masalah yang jadi, Genting tak mahu taman tema tu dibazirkan macam tu je. Lebih-lebih bila RM1 bilion dah dilaburkan. Menang atau kalah, mereka rancang nak teruskan je taman tema tu tanpa ada jenama, dan bukanya bila dah siap nanti. Kami tak tahulah macam mana benda ni akan jadi, sebabnya permainan-permainan tu berdasarkan IP Fox. Selepas berbolak-balik antara Genting dan Disney, ada satu tempoh senyap antara keduanya. Sebab, kedua-dua pihak cuba selesaikan isu ni di luar mahkamah. Berdasarkan kenyataan pada 25 Julai 2019, Genting Malaysia ada buat pengumuman yang mereka dah selesaikan semua pertikaian antara mereka di luar mahkamah. Kedua-dua pihak juga bersetuju untuk tolak semua tuntutan dan tuntutan balas undang-undang mereka yang belum selesai. Sebahagian dari penyelesaian itu, kedua-dua pihak dah berdamai dan masuk ke perjanjian baru. Di bawah perjanjian baru ini, Genting dibenar menggunakan harta intelek Fox dan bukan Fox. Genting juga setuju dapatkan nama baru untuk taman tema, dan bukannya 20thCentury Fox World lagi. Jadinya, semua pihak dapat apa yang mereka nak. Genting dapat taman tema dan Disney dapat lindungi strategi jenama mesra keluarganya. Dan kita pula, akhirnya dapat bersuka ria di taman tema tu nanti. Lebih teruja lagi, taman tema Genting ni dijangka akan dilancarkan pada tahun 2020!"
"Is it illegal to be part of a boycott in Malaysia? There have been recent calls for the boycott of non-Muslim products in Malaysia, and to prioritize Muslim-made products. A proposal was made by the Islamic Consumers Association of Malaysia for halal certificates to be issued in the native language of product manufacturers. This was proposed to encourage people to buy Muslim-made products and to easily identify them in the market. Several bodies such as the Muslim Consumers Association of Malaysia (PPIM) and the Malaysian Chambers of Entrepreneurs also called for the ban on non-Muslim products that used Jawi wordings on their packaging. This has now become a nationwide topic of discussion, as government bodies and our Prime Minister denounced the act of boycotting these products. But this isn’t the only case of boycott that has happened in Malaysia. In 2018, there was a boycott against European products as the EU wanted to ban palm biodiesel in 2021. Local oil palm holders boycotted against EU’s decision to ban palm oil. This then led us to questions on boycotts and how they work. For instance, can someone be charged for boycotting certain products in Malaysia? And, what happens a person refuses to buy certain products made by a particular individual/company? But before we go into the details, let’s briefly look at what a boycott is in the first place. Boycotts are not the same as protests We’ve seen quite a number of protests and boycotts in Malaysia. Some of the famous ones would be BERSIH rallies and the recent anti-ICERD rally. But the difference between protests and boycotts is somewhat small, as it depends on how they’re conducted. We spoke to Alex Anton Netto from Anton & Chen to clarify on how protests and boycotts work: A protest is the act of putting forth a strong objection whereas a boycott is the act of abstaining to associate with a particular body, organization or company. The act of boycott in itself is an expression of protest. – Alex Netto via email reply to Asklegal. Basically, a protest is an expression of a person’s disapproval towards something. For instance, if you’re unhappy with the way your company treats its employees, you may choose to express it by protesting outside the office for a day or two. Boycotts on the other hand, are slightly different. It’s an expression of refusal, or to avoid something that you dislike. Let’s assume you dislike drinking bubble tea (due to the high sugar content). If someone offers you one, you refuse and say you won’t drink it because it’s harmful. This technically means, you’re boycotting bubble tea as you’ve expressed your dislike towards it. Similarly, refusing to buy certain products from a certain group is a form of boycott too. The question in return will be: Is it illegal to do so? [READ MORE: 5 points about ICERD that Malaysians are disagreeing over] Boycotts aren’t illegal unless it poses a threat For starters, boycotts in itself are not illegal. There are many reasons why people boycott or even protest against something. But, it’s not wrong to boycott against a group of people or a certain product. In fact, it can be considered to be a Constitutional right to boycott or protest in Malaysia. Article 10 of the Federal Constitution guarantees this as follows: “(a) every citizen has the right to freedom of speech and expression...” Basically, we all have the right to voice out and express our disapproval in different ways—including boycotts. However, the legality of boycotts would take a U-turn if it disrupts public safety and order. [READ MORE: How to organise a (legal) rally in Malaysia?] Article 10(2) of the Federal Constitution states the exceptions to freedom of speech. Some of it includes making a defamatory statement or inciting an offence. Here’s an example: If you went around saying untrue things about someone (Defamation) or posed a threat to national security (which is an offence), your right to freedom of speech might be brought to an end. So TL;DR boycotting a certain product in Malaysia, may not be an offence under the Federal Constitution. As much as we are free to exercise our Constitutional rights, the choice is ours to decide based on facts."
"Is it legal to convert a house into a temple in Malaysia? While most of us are pretty tolerant with our neighbours—some things they do can be a nuisance, like when they watch TV loudly. But in some circumstances, the things they do can even be...illegal. Now, just assume your neighbour renovated his house recently. It didn’t seem like much at first—it was probably just an additional room or shed in his front yard. But 2 months after the renovation, you notice that there is a structure that looks like a temple in his compound and frequent visitors come to his house weekly, for religious ceremonies. You try and close one eye over this issue, but the frequent visits from devotees and the excessive noise is starting to get out hand. So you might wonder: is it legal for your neighbour to transform his house into a place of worship? Before we look into that...let’s establish what amounts to a place of worship. It is a place of worship if it is open to public Most religions in Malaysia have different places of worship, such as a mosque, a church or a temple. These buildings can be distinguished from their structure, which is iconic to each religion. But what if the religious activities are performed in an ordinary house, and prayers are conducted on a daily basis with people coming to visit the premise as a place of worship? This judgement from the case of United Hokkien Cemeteries Penang v The Board of Majlis Perbandaran Pulau Pinang would help shed some light: “As a place of worship, it must be public. No difficulty needs arise in this regard...it is also open to those members of the public who would avail themselves of the facilities it has to offer.” – Chang Min Tat, Federal Court Judge. Based on the case, property can be classified as a place of worship if it is open for public. So a temple, mosque or church does not necessarily have to look like one. So long as people come and go, and there are prayers and religious ceremonies being conducted in the premise, it’s considered a place of worship. [READ MORE: Is it illegal to block your neighbourhood road with a kenduri tent?] So does this mean your neighbour is free to convert his house into public property i.e; a temple? There are no laws to stop building a place of worship There are technically no laws that disallow people from building a temple, mosque or church. This is because the Federal Constitution upholds freedom of religion under Section 11(3): “(3) Every religious group has the right— (a) to manage its own religious affairs; (b) to establish and maintain institutions for religious or charitable purposes; and (c) to acquire and own property and hold and administer it in accordance with law.” Basically, we have the freedom to practice our own religion and the Constitution states that it’s NOT unlawful for someone to build and maintain a place of worship. So long as the religious group or person can manage the premise, there is very little you can do to stop them. So to prevent people from abusing the law or building a place of worship at home, there are additional laws to stop them from doing so. House owners must comply with the local housing plan There are certain regulations set by the local authorities. The developer of an estate and the owner of the property must abide by these regulations. Section 18 of the Town and Country Planning Act 1976 states the following on the use of land and buildings: “(1) No person shall use or permit to be used any land or building otherwise than in conformity with the local plan.” Basically, if your property is classified as a house, and is not meant for commercial purposes—carrying out any other activity besides what it’s meant for is an offence under the Act. Those who break the law will face a jail sentence up to 2 years, a fine up to RM 500,000.00 or both. The Street, Drainage and Building Act 1974 defines and differentiates a temple and a house as such: Place of public resort (Place of worship): “A building...used either ordinarily or occasionally as a church, chapel, mosque, temple or other place where public worship is or religious ceremonies are performed...to be used either ordinarily or occasionally for any other public purpose...” Dwelling house (Residential property): “A building or tenement wholly or principally used, constructed or adapted for use for human habitation...” So if your neighbour uses a residential property aka his home for any other purpose besides living in it, he will be fined an additional RM25,000.00 and served a nuisance order or an abatement order by the court, as stated under the Act. [READ MORE: 5 annoying things your Malaysian neighbours do that you can sue them for] You can stop them with just one complaint As much as you want to maintain the bond you have with your neighbours, there can be certain things that can push you to a point of no return. So, you might want to take action before your neighbour’s house becomes the next popular place of worship in your area. The Local Government Act 1976 provides that local authorities have the power to take necessary steps to resolve certain types of nuisances and non-compliance of property. This means, you can always lodge a complaint with your local authority (i.e. Majlis Bandaraya, DBKL, MBPJ) via their websites or call their available hotlines which are also provided on their sites. [READ MORE: If you want to sue someone in Malaysia, what happens if they ignore you?]"
" Malaysian women are charged 'pink tax' for toiletries. Here's what it's about So, we assume most women might be aware of this but for all the men out here reading this article, imagine this situation: Your wife just asked you to buy her a razor. You agree to get her one during grocery shopping. As you walk down the isle for toiletries in the supermarket to look for a female razor, you’re taken aback when you realize it’s two times more expensive than your regular men’s razor! When you see closely at some of the other products in the isle, you notice that razors aren’t the only thing that costs more. Brand X’s women’s deodorant costs more than the regular one. This also applies to tampons and pads in the isle. So now you ask yourself: Aren’t most of these overpriced, gender based products, targeted specifically on women? Well, this is basically what the ‘pink tax’ is. Women and the ‘pink tax’ ‘Pink tax’ is not exactly a real tax. It is an unofficial name placed on the extra price women have to pay for certain products. It could refer to a real tax, such as the Government imposing a tax on women’s sanitary products (ie; GST). It could also refer to the extra price manufacturers place on women’s products. There are 2 general components for pink tax: 1. It’s a term for Government imposed tax on women’s sanitary items (ie: SST)—for pads, tampons and pantyliners. Malaysian women previously had to pay a 6% tax on sanitary products. These items were listed under the “Beauty and Health Products” category in the GST regulations. For women’s products, we have what is called an inelastic demand. So in a basic supply or demand scenario, when the prices go up, the demand goes down: That’s called an elastic demand. But in an inelastic demand, price go up and the demand stays the same. So women would still buy these goods whether or not the price increases, because it’s a necessity. But the GST was repealed in 2018, and replaced by SST, where taxes on sanitary products were reduced to zero—in other words pads, tampons and other sanitary products aren’t taxed anymore. Women’s sanitary products are now classified under the Miscellaneous Manufactured Articles, in the Sales and Services Tax as stated below: Malaysia isn’t the only country that imposed pink tax on women. Countries such as the United Kingdom and India add sales tax anywhere from 5% to 10% for tampons and sanitary pads as they’re considered non-essential. #syukurlahmalaysiamasihaman But the government isn’t the only one seeing pink on taxes here… 2. It’s a gender-pricing strategy imposed by manufacturers/producers to charge women more for certain products. If you compare women’s products to other generic products, it is most likely more expensive. The difference would lie on the extra tweaks made to the ingredients or the packagings are slightly different to appeal to women more. And manufacturers use the extra ingredients to justify the price increase. So in this sense, pink tax can also refers to companies that charge higher prices for gender targeted products as compared to general products which is equivalent. But this doesn’t just affect women now. Manufacturers have noticed that men are also willing to pay extra for gender specific products. For instance, men’s facial cleansers sometimes cost more than a females. Basically, if a product appeals more to a particular gender, the prices are hiked up as there is demand. Now that this affects both genders... You vote with your purse...or wallet But as we mentioned earlier, pink tax is not just a tax imposed by the Government, but it is also a gender based price system. As much as the government has exempted women’s sanitary products from being taxed (as it is a necessity), there is little that can be done with manufacturers. To keep things simple, there aren’t many laws to stop manufacturers from overcharging for certain products. For instance, you can buy a regular shampoo for a much cheaper price, as compared to a shampoo of the same composition—which comes with a small modification thus making you pay a premium price. Before you conclude that capitalism is taking it’s course at a rapid pace, there are regulations set for manufacturers, such as the Consumer Protection Act, when it comes to setting prices. But if the prices are set within the said limitations, the decision making lies on the consumer herself. So, this is where she gets to decide on whether the female razor makes any difference and helps shave better, or the whole pink tax idea is just a whole lot of stool that requires a REGULAR stool softener."
"Gaji anda di bawah paras minimum? Majikan anda boleh didenda Isu majikan membayar gaji terlalu rendah kepada pekerja merupakan isu yang sering diperkatakan di negara Malaysia. Pada pembentangan Belanjawan 2019, kerajaan telah mengumumkan kenaikan gaji minimum ke RM1,100 bagi pekerja di seluruh negara berkuatkuasa 1 Januari 2019. Perkara ini merupakan satu berita gembira bagi pekerja kerana perkara ini sedikit sebanyak membantu dalam mengurangkan kos sara hidup seharian mereka. Walaubagaimanapun, realitinya masih ramai majikan yang gagal mematuhi paras gaji minimum yang ditetapkan kepada pekerja mereka. Wujudkah tindakan undang-undang yang boleh diambil kepada majikan anda? Kadar gaji minimum sentiasa meningkat Tapi sebelum tu, ada beberapa perkara asas mengenai gaji minimum yang anda perlu ketahui. Perundingan Gaji Negara 2011 (Akta 732) yang menetapkan kadar gaji minimum dalam negara Malaysia dikaji sekurang-kurangnya sekali setiap dua tahun. Dasar gaji minimum dijalankan oleh kerajaan dengan beberapa objektif utama iaitu: Memastikan keperluan asas pekerja dan keluarga mereka dapat dipenuhi. Memberikan perlindungan sosial yang mencukupi kepada pekerja-pekerja. Mengurangkan kebergantungan negara kepada pekerja asing yang tidak mahir. Sebelum pengumuman yang terbaru mengenai kenaikan gaji minimum dibuat, undang undang Perintah Gaji Minimum 2016 telah digunakan sebagai dasar penetapan gaji minimum bagi pekerja di Malaysia. Dalam Perintah Gaji Minimum 2016, kadar gaji minimum bulanan ditetapkan pada kadar RM1,000 sebulan bagi pekerja di Semenanjung Malaysia dan RM920 bagi pekerja di Sabah, Sarawak dan Labuan. Tapi gaji minimum ini telah dikaji, dan pada 2019 telah ditetapkan... Satu negara, satu gaji minimum Berkuatkuasa pada 1 Januari 2019, Perintah Gaji Minimum (Pindaan) 2018 telah dikuatkuasakan dan dengan ini, Perintah Gaji Minimum 2016 dibatalkan. Kadar gaji minimum ini sama untuk pekerja di seluruh Malaysia, berbanding dengan Perintah Gaji 2016, di mana pekerja di Semenanjung Malaysia mempunyai gaji minimum yang lebih tinggi. Tapi, perintah ini tidak terpakai untuk pekhidmat domestik seperti penjaga rumah, tukang masak, tukang kebun dan jaga. Dalam perintah ini, kadar gaji minimum yang perlu dibayar adalah seperti jadual berikut: Bagi kadar gaji pekerja yang dibayar hanya berdasarkan upah mengikut kerja, berat tan, dan sebagainya, kadar gaji bulanan yang perlu dibayar kepada pekerja itu hendaklah tidak kurang dari RM1,100.00. Tapi, bagaimana kalau majikan gagal membayar pekerja di bawah paras gaji minimum? Denda dikira untuk setiap pekerja Majikan anda boleh didenda, dan denda itu dikira bagi setiap pekerja yang gagal dibayar gaji minimum. Di bawah Seksyen 43 Akta Majlis Perundangan Gaji Negara 2011 (Akta 732): Majikan yang tidak membayar gaji pokok sebagaimana yang dinyatakan dalam perintah gaji minimum kepda pekerjanya melakukan suatu kesalahan, dan boleh, apabila disabitkan, didenda tidak melebihi sepuluh ribu ringgit bagi setiap pekerja. Penalti untuk ketidakpatuhan bagi undang-undang ini adalah seperti jadual berikut: Tahu yang majikan buat kesalahan tu satu hal. Tapi nak pergi mana kalau nak buat aduan? Kalau anda tak dibayar, Kementerian akan mendengar Sebagai seorang pekerja anda perlu sentiasa peka terhadap undang-undang yang melindungi hak anda tidak kira dari segi kebajikan, kesihatan dan juga dari segi pembayaran gaji anda. Jika anda rasa majikan anda tidak mematuhi gaji minimum ini, anda mempunyai dua pilihan bagi membuat aduan iaitu: Membuat aduan terus ke Jabatan Tenaga Kerja berdekatan dengan anda dengan membawa butiran lengkap mengenai aduan yang ingin dibuat Membuat aduan terus ke laman web Kementerian Sumber Manusia di sini. Pastikan butiran aduan yang mengandungi butiran seperti berikut bagi memudahkan proses siasatan aduan dijalankan. Maklumat yang perlu disediakan dan diisi lengkap bagi setiap aduan adalah: Nama Jenis Pengadu No Kad Pengenalan Tajuk aduan Jantina Butiran aduan Alamat Aduan terhadap Bahagian/Jabatan/Agensi Negara/Negeri/Daerah Tindakan yang telah diambil pengadu Telefon/emel Tindakan yang dikehendaki dari Kementerian Sumber Manusia Pekerjaan Majikan anda mungkin boleh dikenakan tindakan undang-undang kerana tidak membayar gaji minimum kepada anda, namun anda sebagai pekerja harus mempamerkan perkhidamatan dan komitmen yang terbaik bagi majikan anda, agar industri pekerjaan di Malaysia bukan sahaja melalui gaji minimum yang dibayar, tetapi menghasilkan kualiti yang terbaik bagi perkhidmatan yang diberikan."
"Can Malaysian companies simply fire staff while they’re still under probation? When you start out at a new company, typically you’ll go through a probation period. This usually last for 3-12 months. Think of this as a trial period: the company can see if you’re a good fit for them; but also for you to decide whether you want to stay on. And some of us might think that our job is guaranteed during the probation period. The worst thing that could happen is the company deciding not to hire you permanently. But, surprise: what if you get fired before the end of your probation period? And worse, your company doesn’t even give you a reason for the firing and you’re sure you did nothing wrong. What can you do then? Well before we answer that question, let’s first understand what is a “probation period”. Probation periods are for companies to determine if you’re a good fit Well there aren’t any laws defining what a probation staff is, but generally they are new employees working for a certain period of time, so that a company can assess if they’d be a suitable fit for them permanently. The duration period for probation would depend entirely on your employment contract. But more often than not, it usually ranges from a period of 3 months to 12 months. And this is what a probation term in an employment contract could look like: “You will be on probation for a period of six (6) months, and the confirmation of your permanent status as an employee after the mentioned period is dependant upon satisfactory service of the work you have been assigned” So based on the above example you’d be on probation for 6 months, which in other words mean, you definitely have a job for that 6 months. According to the National Human Resources Centre, at the end of that 6 months, your company can either: Confirm you, basically making you a permanent employee Extend your probation period because they need more time to see if you’d be a suitable permanent staff Terminate you because they don’t think you’d be suitable for their company Now back to the earlier question, can the company fire you before the probation period ends? Probation staff can’t get fired without proper reasons When it comes to dismissals or getting fired, probation staff and permanent staff enjoy the same rights during their employment. In the case of Mak Teck Mun v Ginova Marketing Sdn Bhd, a man named Mak was hired by Ginova Sdn Bhd on probation. Unfortunately, he was terminated by his company before his probation ended and he sued the company in court. At the end of the case, Mak won and the court awarded him money for the salary he was supposed to get if he wasn’t fired. According to the court, the reason why Mak won was as follows: ""... appointment on probation for six months gives the employer no right [to] terminate the service of an employee before six months had expired except on the ground of misconduct or other sufficient reasons in which case even the services of permanent employee could be terminated. At the end of the six months' period the employer can either confirm him or terminate his service, because his service is found unsatisfactory."" In simpler terms, Mak had the same rights as any other permanent employee in his company and he couldn’t be fired before the 6 month period without valid reasons. In addition to that, the court also said that the company could only fire Mak if they didn’t feel like making him a permanent staff AFTER his probation period. So from the case above, we know that your company must give you a valid reason if they wanna fire you before your probation period. But what type of reasons will be considered valid by the courts? Well there isn’t an exhaustive list, but generally there are 3 circumstances: The probation staff committed a misconduct like sexual harassment or always coming in late The probation staff is performing poorly, which means he isn’t doing his job well The probation staff is retrenched, which means that the company can’t afford to keep him So if a company’s reason for firing you does not fall into any of these circumstances, it would amount to a wrongful dismissal, which means that your company has fired you unlawfully. [READ MORE: My boss fired me for no reason, what can I do now?] You can take action against the company for wrongfully firing you It’s not the end of the road for you if you’ve been wrongly fired. This is because Malaysian law protects employees by giving them them an avenue to take action against against the company. According to Section 20 of the Industrial Relations Act, any employee in Malaysia (whether Peninsula or Sabah and Sarawak) can complain to the Director General of Industrial Relations for situations of wrongful dismissal. Your wrongful dismissal complaint to the Director General can be made at the nearest Human Resources Department, and once the complaint has been transmitted to the Director General, he would pass it to the Human Resources Minister who may then refer the matter to the Industrial Court. At the Industrial Court you’d be asked to prove your case for wrongful dismissal against the company and you can do it alone or be represented by a lawyer or a member of a trade union (if available)."
"5 Fatwa Pelik Yang Pernah Diputuskan Di Malaysia, Dan Sebab Sebenar Di Sebaliknya Seperti mana yang kita semua ada baca atau dengar, Mahkamah Tinggi Kuala Lumpur baru-baru ni menolak semakan undang-undang oleh Sister In Islam (SIS) bagi mencabar keputusan Jawatankuasa Fatwa Selangor yang mengisytiharkannya sesat dan menyeleweng dari ajaran Islam. Mahkamah buat keputusan tu sebab Mahkamah Sivil tak ada bidang kuasa memutuskan permohonan tu dan ia sepatutnya dibuat di Mahkamah Syariah. Kalau kita tengok definisi yang diberikan oleh tokoh ulama Islam, Dr Wahba al-Zuhaili, fatwa dimaksudkan sebagai jawapan yang diberikan oleh seorang mufti untuk sesuatu perkara yang berlaku apabila diajukan soalan kepadanya. Tapi dalam konteks undang-undang Malaysia, pengeluaran fatwa kena ikut prosedur tertentu, dan perlu diwartakan. Kalau tak diwartakan, fatwa tu kekal sebagai pendapat mufti dan hanya sebagai rujukan hukum semata-mata. Selain tu, kita juga ada Jawatankuasa Majlis Fatwa Kebangsaan yang ahlinya terdiri daripada semua mufti negeri, pakar-pakar muslim dan tokoh-tokoh profesional. Tapi disebabkan hal ehwal Islam ni diletakkan di bawah bidang kuasa negeri, jadinya setiap negeri juga ada Jawatankuasa Fatwa masing-masing. Maknanya di sini, tak semestinya keputusan Majlis Fatwa Kebangsaan akan diterima oleh negeri, dan setiap negeri juga tak semestinya akan ada fatwa yang sama. Tapi tak dapat dinafikan, kadang-kadang tu ada juga fatwa-fatwa yang dikeluarkan agak kontroversi atau pelik dalam pandangan masyarakat. Walaupun macam tu, mesti ada penjelasan di sebaliknya kan? Mungkin kita boleh mula dengan… 1. Yoga dan poco-poco Pada tahun 2008, Majlis Fatwa Kebangsaan dah mengharamkan yoga kepada umat Islam, kerana senaman itu dikatakan mengandungi unsur-unsur fizikal dan spiritual yang bertentangan dengan syariat Islam. Yoga turut dikatakan, terdapat unsur-unsur mentera dan pemujaan dalamnya dan juga berkait rapat dengan ajaran Hindu. Bagaimanapun, Mufti Perlis, Dr Asri Zainul Abidin tak berapa setuju dengan keputusan tu dan nasihatkan keputusan tu janganlah kaku sangat. “Majlis Fatwa jangan hanya mengharamkan saja tapi berilah alternatif. Banyak lagi amalan-amalan sukan yang diambil dari budaya lain seperti tai chi, judo, taekwando. Semua sukan ini bukan asal usul Islam tetapi diamalkan kerana ianya baik untuk kesihatan.” – Dr Asri Zainul Abidin, dipetik dari mStar. Sehingga ke hari ini, dah ada beberapa negeri yang terima fatwa ini, seperti – Melaka, Kelantan, Pahang, Perak, Sarawak dan Wilayah Persekutuan. Dah habis pasal isu yoga, timbul pula isu pengharaman tarian poco-poco. Sebabnya, pada tahun 2011, Jawatankuasa Fatwa Negeri Perak dah menfatwakan tarian poco-poco sebagai haram. Perkara ini diumumkan oleh Mufti Perak, Tan Sri Harussani Zakaria dengan alasan – tarian tu mempunyai unsur kepercayaan Kristian dan pemujaan roh. Selain Perak, Selangor pun keluarkan fatwa pasal isu poco-poco ni, tapi taklah sampai mengharamkannya, sebaliknya ia masih boleh dilakukan kalau tak bercanggah dengan garis panduan hiburan Islam. Walaupun macam tu, Majlis Fatwa Kebangsaan tak terima fatwa Perak dan kata tak ada halangan untuk buat tarian poco-poco (selagi tak langgar garis panduan hiburan Islam). Pengerusinya, Prof Emeritus Tan Sri Dr Abdul Shukor Husin masa tu kata, kalau ia tak melanggar garis panduan Islam dan baik untuk kesihatan, maka ia tak dihalang. Dr Asri Zainul Abidin (masa tu bekas Mufti Perlis) pun kata tak ada keperluan nak haramkan poco-poco, sebaliknya hukum tarian tu adalah harus sahaja. Tapi Harussani tetap dengan pendiriannya dan kata Perak tak akan tarik fatwa berkenaan. “Tidak akan tarik balik… benda dah haram, benda dah sesat buat apa mesti nak tarik balik? Haram tetap haram dan orang yang mengamalkannya boleh bawa kepada syirik.” – Harussani, dipetik dari Perak Today. 2. Pokemon Go Beberapa tahun lepas, tak dapat dinafikan yang permainan Pokemon Go jadi macam wabak dalam masyarakat dunia. Orang Malaysia pun tak terlepas dari main permainan trending ni. Dalam masa sama, banyak juga kita dengar pasal kejadian kemalangan jalan raya sebab ramai yang leka sangat main permainan ni. Jadinya, pada tahun 2016, Jawatankuasa Perundingan Hukum Syarak Wilayah dah mengeluarkan fatwa mengharamkan Pokemon Go. Menurut Mufti Wilayah Persekutuan, Dr Zulkifli Mohamad al-Bakri, Pokemon Go dan Pokemon tak dibenarkan untuk umat Islam berdasarkan nas (al-Quran dan hadis) dan juga faktor maslahah (kebaikan) dan kemudaratan yang berlaku. Fatwa ini dikeluarkan setelah meneliti keburukan permainan itu dan keputusan-keputusan yang dibuat oleh Dr. Yusuf al-Qaradhawi, Majlis Ulama Tertinggi Arab Saudi, Universiti al-Azhar dan beberapa negara yang mencegah permainan itu. “Ini selari dengan kaedah Sadd al-Dzari’ah (menutup pintu-pintu menuju kerosakan). Kami syorkan pilihlah bentuk permainan yang mencergaskan minda, tidak melalaikan, dan juga tiada unsur khurafat yang mengarut.” – Dipetik dari Pejabat Mufti Wilayah Persekutuan. Pengharaman ni kemudiannya dapat reaksi ramai pihak, sama ada yang menyokong atau membantah. Majlis Fatwa Kebangsaan lepas tu kata, tak ada keperluan untuk majlis tu bersidang membincangkan isu tersebut. Tapi, Majlis Fatwa Kebangsaan menyokong keputusan fatwa Wilayah Persekutuan. Lepas tu, ada beberapa negeri yang turut sama mengharamkan Pokemon Go iaitu seperti Pahang dan Kedah. 3. Ratu Cantik Fatwa tentang menyertai pertandingan ratu cantik dan menganjurkannya memang dah lama ada dan banyak kontroversi yang melingkarinya. Sebagai contoh, Fatwa Negeri Selangor dah mengharamkan wanita Islam dari menyertai apa-apa pertandingan ratu cantik sejak tahun 1995 lagi. Pengharaman ratu cantik ni pernah jadi kontroversi pada tahun 1997 bila Jabatan Agama Islam Selangor (JAIS) dah menahan tiga orang gadis Melayu-Islam yang menyertai pertandingan ratu cantik Miss Malaysia Petite 1997. Kontroversi ni dah menimbulkan krisis antara Mufti Selangor masa tu, Tuan Guru Ishak Baharom dengan kerajaan pusat, bila kerajaan pusat masa tu anggap penahanan tiga remaja berkenaan sebagai keterlaluan. Akibatnya, Ishak dah ditamatkan kontraknya sebagai Mufti Selangor pada Oktober 1997. Boleh klik sini kalau nak baca lagi terperinci. Pada tahun 2013, kes yang agak sama sekali lagi jadi, bila empat gadis Muslim dah digugurkan dari senarai akhir pertandingan ratu cantik Miss Malaysia World 2013. Mereka digugurkan dari pertandingan tu selepas dapat kritikan daripada Mufti Wilayah Persekutuan, Datuk Wan Zahidi Wan Teh yang kata penyertaan mereka tu sebagai ‘berdosa’. Hal ni sebenarnya jadi, sebab sejak tahun 1996, fatwa tentang ratu cantik memang dah diwartakan di bawah Akta Pentadbiran Undang-Undang Islam (Wilayah Persekutuan). Akibatnya, bahagian penguatkuasaan Jabatan Agama Islam Wilayah Persekutuan (JAWI) dah buka kertas siasatan terhadap keempat-empat peserta tersebut mengikut Seksyen 7, Akta Kesalahan Jenayah Syariah (Wilayah-Wilayah Persekutuan) 1997, kerana menghina agama Islam. Tapi, lepas tu mereka buat permohonan maaf rasmi kepada JAWI dan kata mereka tak ada niat nak menyinggung perasaan masyarakat Islam dan agama mereka sendiri. Buat masa sekarang, majoriti negeri di Malaysia dah menfatwakan penyertaan ratu cantik oleh orang Islam dan menganjurkannya sebagai haram. 4. BERSIH 3.0 Seperti mana kita tahu, sebelum PRU-14, beberapa siri Perhimpunan BERSIH dah diadakan, dengan menyaksikan BERSIH 5 pada tahun 2016 sebagai yang terakhir sehingga artikel ni ditulis. Salah satu Perhimpunan BERSIH yang orang selalu ingat, mestilah BERSIH 3.0 yang dilaporkan bertukar huru-hara bila mana penunjuk perasaan melanggar penghadang polis sebab nak masuk ke kawasan larangan di Dataran Merdeka, dan ada juga kereta polis yang diterbalikkan. Disebabkan kes itu, Majlis Fatwa Kebangsaan dah memutuskan bahawa – haram kepada umat Islam dari menyertai perhimpunan atau demonstrasi yang bertujuan tak baik, melanggar undang-undang, mencetuskan huru-hara dan kekacauan dalam negara. Menurut pengerusinya, Prof Emeritus Tan Sri Dr Abdul Shukor Husin, umat Islam yang menyertai demonstrasi macam tu kena insaf dengan perbuatan mereka. Hasil dari keputusan Majlis Fatwa Kebangsaan ni, ramailah pihak yang rasa tak puas hati terutamanya di kalangan para pemimpin Pakatan Rakyat. Mereka kata, keputusan majlis fatwa tu berat sebelah dan bertentangan dengan gambaran sebenar Perhimpunan BERSIH. “Majlis Fatwa harus lihat dari semua sudut pandangan bukan hanya dari satu pandangan sahaja dan mereka harus lihat siapa yang cetuskan huru-hara dalam perhimpunan BERSIH 3.0.” – Tuan Ibrahim Tuan Man, Ketua Penerangan PAS. Dipetik dari Selangorkini. Bagaimanapun, Timbalan Menteri di Jabatan Perdana Menteri, Datuk Dr Mashitah Ibrahim masa tu menafikan yang Majlis Fatwa Kebangsaan ada keluarkan fatwa mengharamkan BERSIH 3.0. Jelasnya, ia cuma nasihat dari majlis fatwa tentang penglibatan umat Islam yang bertindak sebagai perusuh jalanan yang boleh membawa kerosakan dan musibah kepada negara. 5. Bank susu ibu Disebabkan kepentingan susu ibu terhadap tumbesaran bayi sangat penting, maka ramai di kalangan ibu-ibu yang memilih untuk memberikan susu ibu kepada bayi mereka dari menggunakan susu formula. Keperluan terhadap penyediaan susu ibu ini juga dah menyebabkan bank susu ibu mula diperkenalkan di Washington pada tahun 1910. Idea tu kemudiannya dibawa ke Eropah, negara-negara Asia dan sampailah ke Malaysia. Tapi bila idea ni sampai ke Malaysia, ia nampak macam tak berapa diterima dan tak berapa praktikal sebab ia berkait langsung dengan perspektif Islam. Jadinya, pada tahun 2011, Majlis Fatwa Kebangsaan dah membincangkan isu ini. Akhirnya, majlis fatwa memutuskan – penubuhan bank susu adalah haram, kerana penubuhan bank susu ibu boleh mendatangkan kemudaratan kepada nasab atau keturunan. Hal ini kerana, penubuhan bank susu ibu ni berkait rapat dengan syarat-syarat pengharaman perkahwinan. Sebabnya, mana-mana bayi yang menyusu dengan seorang wanita atau lebih akan menjadi adik beradik susuan dan perkahwinan mereka adalah diharamkan. Susuan tu tak kisahlah dari melalui penyusuan secara langsung dari payudara atau penyusuan secara tak langsung. “...memandangkan penubuhan bank susu boleh mengakibatkan percampuran nasab dan membawa umat Islam terjebak dalam keraguan dan perkara yang haram, dan keperluan penubuhannya juga tidak berada dalam keadaan darurat sehingga mengancam maslahah awam, Muzakarah bersetuju memutuskan bahawa penubuhan bank susu adalah tidak diharuskan.” – Majlis Fatwa Kebangsaan. Bagaimanapun, masih ada pandangan-pandangan dari tokoh Islam dan pertubuhan Islam tertentu yang kata penubuhan bank susu ibu ni sebagai harus dan bukannya haram. Setiap fatwa tu, ada sebab dan latarnya yang tersendiri Sebenarnya, banyak lagi fatwa-fatwa yang agak kontroversi dan menarik perhatian ramai, contohnya macam – isu pengharaman filem ‘The Message’, isu rokok dan vape, penggunaan bulu babi dan sebagainya. Namun apa yang pasti, setiap fatwa yang dikeluarkan ni adalah hasil dari persoalan-persoalan yang wujud di kalangan masyarakat. Tapi, ada juga kadang-kadang tu fatwa-fatwa yang dikeluarkan masih lagi diperdebatkan atau disalah tafsir oleh sesetengah pihak. Tapi kalau kita perhatikan betul-betul setiap fatwa yang dikeluarkan (sama ada dari peringkat kebangsaan atau negeri), ia selalunya datang dengan penerangan panjang lebar dan dah mengambil kira pandangan dari al-Quran, hadis serta pandangan para ulama muktabar. Jadinya, sesuatu fatwa tu bukanlah senang-senang je nak diputuskan. Dan seperti mana yang dah dinyatakan di awal tadi, setiap negeri mempunyai jawatankuasa fatwa masing-masing, jadi janganlah korang pelik kalau dapat tahu ada fatwa-fatwa berbeza di antara negeri-negeri Malaysia. Fatwa-fatwa ni pula kemudiannya kena diwartakan, supaya ia boleh dikuatkuasakan. Sebab itulah ada peruntukan undang-undang di setiap negeri pasal – kesalahan memberikan pendapat yang bertentangan dengan fatwa, dan sesiapa yang melanggar fatwa pula boleh didakwa di bawah kesalahan menghina pihak berkuasa agama. Akan tetapi, kalau kesalahan melanggar fatwa itu dibuat di luar sempadan negeri yang mewartakannya, maka tindakan menurut undang-undang tidak boleh diambil kepada individu tersebut. Oleh itu, boleh dikatakan yang institusi mufti dan fatwa ni sebenarnya adalah salah satu institusi penting di negara ini. Cumanya, kekeliruan di kalangan masyarakat harus diatasi bila melibatkan berbezaan fatwa di antara negeri atau kebangsaan."
"5 steps to take when you want to sue your condo developer in Malaysia Disclaimer: The laws stipulated in this article may not be applicable to East Malaysia. You can’t fix everything in life. There are some situations that require professional advice or services. For instance, if you need to remove your appendix through surgery you would most likely get a surgeon to do it. Similarly, if you needed legal advice or someone to represent you in court, you would hire a lawyer to do the job for you. This is simply because a lawyer would have the knowledge and experience to do so. But what if we told you that there are some instances where you need to represent yourself in court without a lawyer? This rare occasion happens when you want to sue the developer of your property (more on this later). Section 110 of the Strata Management Act 2013 (MCA) states that you cannot be represented by a lawyer unless there are complex legal issues which would require you to have one. So if you own an apartment, condo or live in a gated community⁠ (strata property)—and it is not properly managed or there are defects to it and want to sue, you have to do it on your own. [READ MORE: Can condo managements in Malaysia be sued for letting your condo become run down?] Now don’t freak out, here’s a step-by-step guide on how to bring a case against your developer or condo management in Malaysia. Step 1: File a case in the Tribunal court...if the house is yours So if you’re renting the property and want to bring an action against the Management Committee or even the developer, we have bad news as you might not be able to do so. This is because Section 107 of the MCA has a list on who can bring an action to the Tribunal. The list includes purchasers, developers and the joint management body of a Strata property. However, there is an exception under Part (h) of the Section, where a tenant can possibly lodge a complaint and bring up a case if the Tribunal allows them to do so. [READ MORE: How is a normal Malaysian court different from a Tribunal court?] So if you fall into any of the categories stated above, you can start to file a complaint by filling Form 1. The form basically contains the particulars of your claim and costs RM100.00 for residential claims (such as sinking funds and maintenance) and RM200.00 for commercial/industrial claims. The RM100.00 or RM200.00 is a one-off payment for the forms and you need to make several copies of them. If there is more than one person that you want to make claims from, you need to make an additional copy for each of them. As a claimant, your responsibility would be to file 4 copies of Form 1 to the Tribunal to get it signed and sealed by the Secretary of the Tribunal. Once that is done, you can proceed to the next important step... Step 2: Serve the notice to the Respondent So Form 1 should be served to the other party who you want to make the claim from (aka the Respondent), within 14 days after getting it signed and chopped by the Secretary. Apart from postal services, you can also send the notice to the Respondent via email or other electronic means. But take note, you need to send the notice within 30 days from the day it was issued by the Tribunal or it will be considered invalid. And now you wait for a maximum period of 2 weeks for a reply from the other party. If they don’t reply read step 4—but if they do, keep reading on... [READ MORE: Living in a Malaysian apartment - who is responsible when things get broken?] Step 3: The respondent needs to respond back This is where the other party can counterclaim (fight back) your claims. This can be done via Form 2 which looks something like this: This form basically provides the Respondent’s side of the story. So if the Respondent admits to the claims being made, he has to state why he is doing so. If he were to dispute the claim, he would have to state it under Form 2 as well. The particulars in Form 2 for the counterclaim will have to be signed and authorised by the Respondent or his company (if it is a corporate body that is being sued). So, if you become the respondent party, you would have to pay a filing fee as well, which is similar to what is paid by the Claimant party. If it is a residential claim, the fee comes up to RM100.00, whereas commercial and industrial claims would be RM200.00. This Form will then be signed and dated by the Secretary accordingly. Now, if the respondent counterclaims your complaint, you would have to file Form 3 to specify your claims to contradict the respondent’s statement. Form 3 carries a fee of RM50.00 for residential claims and RM100.00 for commercial/industrial claims. Now, the next part is where your lawyer-ing skills will come to play... Step 4: The negotiation/hearing process Once the claims have been filed, the Secretary will then issue EITHER one of these notices: Form 4: The notice of hearing along with the date, time and venue of the hearing. Form 5: The notice of negotiation which includes the date, time and venue of negotiation. Note: You either get a notice of hearing OR a notice of negotiation (not both). So the hearing or negotiation process is where the Tribunal would decide on the dispute and compensate any party if necessary. This is where you can bring any witnesses, documents or records to support your claim. The hearing and negotiation processes are similar, but have a few slight differences. In the negotiation process, if either party fails to appear on the day of the negotiation, the Tribunal will still make a decision based on the claims and counterclaims made. As for hearings, the parties will need to submit their supporting evidences to Tribunal. This can be done in two ways: Oral hearing – Done in front of the President of the Tribunal as there may be witnesses present. Submission of documents – Submit the relevant documents and evidences which don’t require witnesses Once the process is complete, the Tribunal will make a decision based on the evidences. Step 5: The Tribunal will issue an award So once the dispute has been settled and the parties have reached a certain agreement, the Tribunal will record the settlement under Form 6. Based on the agreement, an award will be given. An award is basically the decision made by the tribunal in the dispute settlement proceeding. It might either be given to you from the settlement that was recorded under Form 6 for negotiations.— or the Tribunal can also do so under Form 11 for hearings as such: But here’s another important thing to note, if you’re representing yourself at this Tribunal, you can only make claims up to RM250,000.00 in awards. So, if the compensation that you’re looking for exceeds this amount, the Tribunal cannot handle your case and you’ll have to engage a lawyer for advice. Also, if any party fails to comply to the award given by the Tribunal, Section 123 of the SMA 2013 carries a jail sentence not exceeding 3 years, a fine up to RM250,000.00 or both. If the offence is continued, the law imposes a fine up RM5,000.00 for each day the offence is continuously carried out. However, if your claim does not exceed RM250,000.00 and you want to know further, you can check out the Housing and Local Government Ministry’s site which provides the contact info and location of Strata Tribunals across Malaysia."
"Sebelum adanya Tanah Melayu, filem dah ditapis. Sejak bila peraturan ni wujud? [Click here for English version] Secara umumnya, tujuan utama undang-undang penapisan (censorship law) adalah untuk melindungi masyarakat dari elemen-elemen negatif dalam media. Perkara yang nak ditapis tu mungkin boleh jadi seperti – seksualiti songsang, keganasan berlebihan dan juga ajaran agama yang menegelirukan. Mungkin ada di antara kita yang anggap undang-undang ni berkait rapat dengan nilai-nilai timur kita. Tapi jangan terkejut pula bila dapat tahu yang peraturan ni sebenarnya dah digubal sejak kita belum merdeka lagi. Malah, peraturan tu sendiri bukan kita yang cipta, tapi sebenarnya ia digubal oleh pihak British masa mereka menjajah Tanah Melayu. Dan sebab kenapa mereka buat macam tu adalah… British bawa undang-undang penapisan untuk lindungi… diri mereka sendiri Sejak sebelum British datang dan menjajah negara ni, kita memang dah ada pelbagai jenis hiburan seperti wayang kulit, mak yong, main puteri dan sebagainya. Persembahan teater ini berdasarkan cerita-cerita hikayat dan rakyat masyarakat tempatan masa tu. Disebabkan hal itu juga, tak ada sebarang peraturan yang dibuat terhadap persembahan-persembahan ni, kerana ia dipersembahkan untuk hiburan dan sesuai dengan norma budaya masyarakat kita. Tapi semuanya mula berubah bila British mula menjajah Tanah Melayu. Masa mereka berada di sini, persembahan tradisional ni tak berapa sesuai dengan citarasa Inggeris, terutamanya di kalangan para askar British. Jadinya, teater Inggeris mereka dibawa masuk ke sini untuk menghiburkan pegawai-pegawai dan askar British di Tanah Melayu. Bersekali dengan teater itu, mereka juga bawa masuk peraturan penapisan (censorship regulations) ke Tanah Melayu. Tapi benda ni bukan baik sangat sebenarnya, sebab kalau korang nak tahu – British adalah antara negara yang mempunyai peraturan penapisan paling ketat di dunia. Ia berdasarkan nilai-nilai yang ditetapkan oleh kelas atasan yang fikir mereka ni tahu apa yang terbaik untuk semua orang. Dan inilah puncanya kenapa Enakmen Teater 1895 diperkenalkan. Enakmen ini mengawal selia persembahan teater di bawah kategori tertentu seperti isi kandungan, moral pelakon, masa persembahan dan faktor keselamatan bangunan yang teater itu akan dipersembahkan. Bila filem mula dihasilkan, kebanyakan filem-filem ni diimport masuk dari Hollywood dan orang Inggeris tak berapa suka dengan tema-tema yang dipaparkan. Contohnya, watak wanita digambarkan dengan lebih bebas dan ada juga filem yang dianggap merosakkan status orang putih. Untuk seiring dengan peredaran masa, peraturan panapisan pun mula berkembang dengan merangkumi kedua-dua medium – teater dan filem. Filem ditapis dengan bagi polis menontonnya dulu Pada mulanya, peranan penapisan ditugaskan kepada pihak polis yang dianggap sebagai penjaga moral masyarakat. Sebahagian daripada tugas mereka adalah, mereka akan mengawasi persembahan teater. Polis boleh buat macam tu sebab mereka diberikan hak untuk masuk dalam mana-mana persembahan teater dan berkuasa untuk menghentikannya kalau persembahan tu dianggap tak bermoral. Hal ni sebenarnya berdasarkan budi bicara mereka sendiri sebab tak ada garis panduan jelas yang mereka boleh ikut. Dengan kebanjiran kemasukan filem, tugas nak tapis filem ni jadi terlalu banyak sampaikan polis tak cukup tangan nak kendalikannya. Jadinya, tugas rasmi penapisan diperkenalkan di bawah Ordinan Teater 1908, Enakmen 1917. Orang pertama yang dilantik (secara sementara) untuk tugas ni adalah seorang lelaki British bernama F. Neville Piggott, yang kemudiannya diikuti oleh dua orang lagi pegawai penapis sementara. Pada tahun 1920, mereka akhirnya dapat melantik pegawai penapis filem tetap secara rasmi, iaitu T.M. Hussey. Dia ni sebenarnya bekas askar yang mula bekerja dekat Ibu Pejabat Polis Negeri-Negeri Selat di Singapura sebagai Pegawai Penapis. Tugasnya tu memerlukan dia jadi sangat rapat dengan sensitviti masyarakat, untuk membantunya memahami apa yang boleh dan tak boleh dipertontonkan kepada orang awam. Ironinya, dia jadi terlalu masuk dengan budaya kita, sampaikan dia mula mengharamkan filem-filem British yang dibawa masuk sebab filem-filem tu dianggap terlalu “Barat” untuk masyarakat kita. Ini membuatkan dia dianggap sebagai anti-British dan autokratik. Dia juga rajin sangat dengan kerjanya. Mana taknya, dia dikatakan dah ditugaskan untuk mengawal selia lebih 4 juta kaki filem! “Pada tahun 1932, lelaki malang ini terpaksa memeriksa tak kurang dari 4,577,700 kaki filem, dan bukan hanya perlu menapis semua ini, tetapi juga setiap pengiklanan yang disertakan – treler, poster dan sebagainya.” – Dipetik dari Braddell (The lights of Singapore). Dia ni memang suka sangat dengan kerjanya, sampaikan dia tak nak bersara masa umur 50 tahun dan buat permohonan untuk sambung bekerja. Permohonan dia tu diterima dan dia sambung kerja untuk beberapa tahun lagi. Dilaporkan, dia bekerja selama 22 tahun, sedangkan pada mulanya dia sepatutnya pegang jawatan tu selama 3 tahun je. Legasinya masih hidup sampai sekarang, dan dia boleh dikatakan Bapa Penapisan Filem Malaysia dan Singapura. Tapi, keadaan ni mula berubah bila Jepun menjajah Tanah Melayu. Tak ada orang nak tengok filem Jepun :( Seperti mana yang kita semua tahu, Jepun mula menjajah Tanah Melayu pada tahun 1942 dan berakhir pada 1945. Tempoh ni jadi masa yang cukup sukar untuk rakyat Tanah Melayu masa tu. Bila perang ni jadi, industri filem tempatan pun mula terbantut dan masa tu tak ada sebarang filem yang dihasilkan. Bila nak isi kekosongan tu, Jepun pun bawa filem-filem mereka ke pawagam. Tapi, filem Jepun tak dapat sambutan sebab orang Tanah Melayu lebih suka tengok filem Barat. Jadinya, Jepun haramkan semua filem luar dari ditayangkan (kecuali dari Jepun), dengan harapan orang akan tengok filem mereka. Tapi, masih juga tak ramai orang nak tengok filem Jepun. Maka, Jepun pun buat keputusan benarkan filem-filem dari India, khususnya filem Hindustan masuk ke Tanah Melayu. Filem Hindustan ni dapat kelonggaran sikit sebab ia dianggap kurang mudarat dari filem-filem Barat. Selain tu, filem China juga diharamkan, sebab ada perang antara Jepun dan China masa tu. Disebabkan kerajaan Jepun yang kawal industri filem, mereka pun tetapkan garis panduan dan peraturan. Semua pengedaran filem dan teater diletakkan di bawah kawalan Eiga Haikyusha aka – Syarikat Pengedaran Filem Jepun. Syarikat ni buat filem-filem yang sebarkan propaganda Jepun dan mana je panggung yang terselamat dalam peperangan digunakan untuk menyiarkan filem propaganda atau filem Jepun saja. Usaha ini untuk menjadikan orang Tanah Melayu mengamalkan budaya mereka yang dipanggil sebagai Niponisasi. Untuk bantu usaha ni, ada 2 kategori atau “genre” filem yang dibuat oleh Jepun: Bunka Eiga Gejiko – badan propaganda kerajaan yang hanya akan menyiarkan berita dan filem pendidikan. Filem-filem ini direka untuk menekankan semangat Jepun, patriotisme mereka, kecemerlangan Angkata Tentera Jepun, industri ringan dan berat Jepun, reputasi kemahiran pengurusan Jepun, mempercepatkan pembinaan semula wilayah yang dijajah dan membina konsensus bahawa Asia bebas dari penjajahan. Filem-filem popular Jepun – filem-filem yang dibikin untuk membuatkan orang Tanah Melayu terbiasa dengan budaya Jepun. Mereka buat filem-filem ini dengan memperlihatkan keunggulan kehidupan keluarga Jepun, keharmonian dalam sistem sosial Jepun, kemodenan tamadun Jepun tanpa mengorbankan budaya tradisional mereka, seni dan muzik, menghormati orang tua dan kesetian mereka kepada negara dan Maharaja Jepun. Bagaimanapun, tak lama lepas tu, Jepun kalah dalam Perang Dunia Kedua dan British kembali ke Tanah Melayu. British cuba buang propaganda Jepun, jadi mereka buat garis panduan umum. Hal-hal yang digariskan adalah: Kaum dan agama (apa sahaja yang boleh menyebabkan ketegangan dalam masyarakat pelbagai budaya) Babak seksual (secara umumnya macam kebogelan, terutamanya badan wanita) Tahyul dan mitos (sihir menyeramkan yang boleh membuatkan orang kebal) Keganasan (kaedah baru membunuh orang) Kalau benda-benda ni korang dengar macam familiar, ada betulnya sebab… Lembaga Penapis Filem Malaysia masih gunakan peraturan ini sampai sekarang. Pada masa tu, British juga buka jawatan Pegawai Penapis kepada orang tempatan. Ini bermakna, orang tempatan pun boleh belajar pasal penapisan filem, dan ia buatkan peraturan tu lebih sesuai dengan dengan budaya kita. Ia juga buatkan orang kita belajar pasal penghasilan filem dan media. Tapi lepas Tanah Melayu merdeka dari British, kita lepas tu buat badan penapisan filem kita sendiri. Bagaimanapun, ia cuma bertahan selama 9 tahun, sebab ia disemak semula pada tahun 1966. LPF akhirnya diperkenalkan pada tahun 1966 Pada tahun 1965, Singapura dah disingkirkan dari Persekutuan Malaysia dan bentuk negara sendiri. Jadi, Malaysia masa tu kena tubuhkan lembaga penapisan dengan peraturan dan garis panduan sendiri. Dan sebab itulah, Lembaga Penapisan Filem Malaysia (LPF) ditubuhkan pada tahun 1966. Semasa dalam tempoh itu, Radio Televisyen Malaysia (RTM) turut ditubuhkan. Pada mulanya, ia hanya siarkan filem tempatan dan rancangan TV, tapi kemudiannya mula ditambah dengan filem-filem luar. Lepas beberapa tahun dan peningkatan penonton, beberapa lagi saluran mula muncul macam TV3 dan NTV7. Bagaimanapun, dengan perkembangan moden TV, lebih banyak lagi filem dan rancangan luar masuk ke Malaysia. Ini bermakna, saluran tempatan tak dapat nak menampung kemasukan tu dan beban kerja pun mula meningkat. Kesannya, ahli LPF mula bertambah untuk isi kekurangan tu dan jadilah ia sebagai pertubuhan besar yang kita boleh nampak sekarang ni. Pada tahun 1998, ASTRO pun mula wujud di Malaysia. Astro jadi penyedia TV berbayar dominan di negara ni sampailah HyppTV masuk dalam industri. LPF lepas tu pandang ke arah Astro sebagai garis panduan ketika cuba memodenkan peraturan penapisan program-program TV. Dengan perkembangan industri media dan filem, LPF juga turut berkembang. Pada 2012, ia mempunyai lebih daripada 75 ahli dan mereka ni bertindak secara terus di bawah Bahagian Kawalan Penapisan Filem dan Penguatkuasaan, Kementerian Dalam Negeri. Maka sehingga ke hari ni, LPF bertanggungjawab dalam menapis segala penyiaran yang ada di Malaysia. Kalau sesuatu filem atau drama tu tak ikut piawaian yang ditetapkan, ada dua je kemungkinan – penyiarannya ditapis atau dilarang siar sama sekali."
"Boleh ke polis periksa phone korang tanpa sebab kukuh? [Click here for the English version] Kita di Malaysia ni, nampak polis buat sekatan jalan raya tu benda biasa je, sebab kita tahu yang operasi tu dibuat atas alasan-alasan tertentu. Dan salah satunya nak kesan kesalahan trafik (macam cukai jalan tamat tempoh atau bawa kereta tanpa lesen memandu). Tapi kadang-kadang tu, ada juga polis buat sekatan sebab tengah cari orang (selalunya penjenayah). Selain tu, korang kena tahu yang sekatan jalan ni bukan satu-satunya cara untuk polis cari orang atau periksa barang orang. Walaupun perkara macam tu normal terjadi, sebenarnya polis boleh je menghentikan dan periksa korang yang tengah berjalan di tempat awam. Tapi diorang tak bolehlah buat macam tu je, kerana diorang mesti kena ada sebab kukuh untuk berbuat macam tu. Jadi, kalau tiba-tiba korang lalui situasi macam ni, bila polis menghentikan korang dan periksa korang, korang mungkin ada beberapa soalan tentang hak-hak korang kan? Walaupun ada di antara kita yang tak pernah hadapi situasi macam ni, kitorang nasihatkan korang baca juga aktikel ni untuk langkah berjaga-jaga. Sebab, barangan peribadi yang diperiksa bukan je wallet, baju dan sebagainya, tapi ada juga keadaan bila mana polis periksa phone korang. Jadi persoalannya di sini… boleh ke polis periksa barangan peribadi korang (terutamanya phone) tanpa apa-apa sebab? [BACA LAGI: Is the PDRM allowed to search your body without a warrant?] [BACA LAGI: Legal Mythbusters: Can the PDRM check your phone for political messages at a roadblock?] Jawapannya YA...dan TIDAK Kalau korang keliru, sebenarnya tak ada jawapan betul atau salah dalam persoalan ni. Jadinya, kita mungkin boleh tengok Akta Polis untuk tahu dengan lebih jelas tentang hal ni. Berdasarkan Seksyen 24, Akta Polis 1967, ia menyatakan: (1) Mana-mana pegawai polis boleh – (a) memberhentikan dan menahan mana-mana orang – (i) yang dilihatnya sedang melakukan apa-apa perbuatan atau ada dalam miliknya apa-apa benda; atau (ii) yang dia ada alasan yang munasabah bagi mengesyaki sedang melakukan apa-apa perbuatan atau ada dalam miliknya apa-apa benda; yang baginya lesen, permit atau kebenaran yang diperlukan di bawah mana-mana undang-undang yang berkuatkuasa… Secara asasnya, akta ni menyatakan yang pegawai polis berhak menghentikan dan memeriksa seseorang (tanpa menahannya) kalau pegawai tu ada sebab munasabah untuk percaya yang seseorang tu bertindak dalam keadaan yang mencurigakan. Biasanya, pemeriksaan rawak ni dilakukan secara tak formal oleh polis. Pegawai polis mungkin akan tanya beberapa soalan tentang diri korang dan minta kad pengenalan untuk tujuan pengesahan. Tapi, bila ia libatkan pemeriksaan barangan peribadi macam phone, hal macam ni hanya boleh dilakukan dengan kehadiran pegawai berpangkat Inspektor dan lebih tinggi, seperti mana yang disebut dalam BUKU MERAH. Tapi, kalau mudah dan normal sangat untuk polis periksa phone korang, apa akan jadi dengan hak perlembagaan dan kebebasan bersuara kita? Hurm, ada perkataan keramat di sini dan ia adalah “munasabah”. Seperti mana yang dikatakan di awal artikel, kalau polis tak ada sebab untuk mengesyaki korang dan periksa phone, diorang tak akan buat macam tu. Berdasarkan Seksyen 116, Kanun Prosedur Jenayah (tiada terjemahan rasmi, diterjemahkan oleh Asklegal), menyatakan: (1) Bila mana pegawai polis yang membuat siasatan polis menganggap bahawa pengeluaran apa-apa dokumen atau benda lain adalah perlu untuk menjalankan suatu penyiasatan terhadap apa-apa kesalahan yang dia diberi kuasa untuk menyiasat dan ada sebab untuk mempercayai... pegawai itu boleh menggeledah atau menyebabkan geledah dibuat untuk perkara yang sama di mana-mana tempat. (2) Pegawai itu hendaklah, jika sesuai, melakukan carian sendiri."" Berdasarkan Akta, seseorang pegawai tu hanya boleh melalakukan geledah barangan peribadi seseorang, seperti phone, bila mana ia sesuai untuk dilakukan. Macam inilah, cuba korang bayangkan ada serbuan dekat bar atau kelab malam yang jalankan aktiviti haram. Polis masa tu ada sebab munasabah untuk mengesyaki seseorang dan kena dapatkan lebih maklumat dari phone orang tu. Kalau ada bukti yang kukuh, pihak polis ada kuasa/hak penuh untuk buat macam tu, selagi mana pencarian tu dijalankan mengikut undang-undang. Tapi, kalau kamu rasa polis dah bertindak melebihi kuasanya… Kalau korang rasa polis dah bertindak salah terhadap korang, korang boleh menulis kepada diorang atau kemukakan aduan secara online di platform polis di sini. Pihak berkuasa pun manusia juga, jadi ada kebarangkalian diorang mungkin lakukan kesilapan masa menguatkuasakan undang-undang. Tapi masalahnya, kadang-kadang ia boleh buatkan masyarakat rasa hak diorang dah dilanggar. Mungkin, penyelesaian terbaik untuk hal macam ni adalah korang tengok apa yang pegawai tu buat dengan phone korang, masa dia tengah periksa. Korang boleh berdiri dekat dengan pegawai tu dan perhatikan apa yang dia buat. Dalam masa sama, bagilah kerjasama kepada polis kalau diminta berhenti atau tunjukkan phone. Kalau polis tak jumpa apa-apa yang mencurigakan, korang boleh je beredar. Tapi keadaan akan cukup berbeza kalau korang ditangkap, dan polis geledah barangan peribadi korang lepas tu. Untuk pertanyaan/penyelesaian berhubung dengan hak korang, korang boleh buat aduan di Suruhanjaya Integriti Agensi Penguatkuasaan (EAIC). EAIC adalah sebuah badan yang ditubuhkan untuk mengawal selia dan menyiasat aduan yang dibuat terhadap pegawai dan badan kerajaan. Tapi, ada juga perbincangan yang kata, EAIC akan digantikan dengan Suruhanjaya Bebas Aduan dan Salah Laku Polis (IPCMC) dalam masa terdekat."
"Boleh ke kita saman ambulans sebab datang lambat? [Click here for the English version] Cuba korang bayangkan kalau korang tu pesakit atau ahli keluarga pesakit yang mustahak sangat nak pergi ke hospital. Ambulans memang datang, tapi… Masa tengah jalan tu, pemandu dapat tahu yang minyak kena isi, jadi ambulans tu pun singgahlah ke stesen petrol lepas je isi minyak, tiba-tiba ambulans tu kemalangan pulak dengan lori pemandu ambulans dengan pemandu lori dua-dua tak puas hati – bergaduh, dan pergaduhan tu ambil masa satu jam! diorang pun pergi balai polis dan buat report! Korang dengar cerita ni macam kelakar? Tapi inilah yang berlaku dekat Kuching awal bulan lepas dan lebih malang lagi, pesakit tu terpaksa menunggu beberapa jam sampai meninggal dunia sebelum sempat tiba ke hospital. Kejadian ni dah membangkitkan kemarahan masyarakat dan ramai yang minta supaya tindakan diambil terhadap penyedia perkhidmatan ambulans tu. Tapi tak ke korang tertanya-tanya pasal standard respon ambulans untuk sampai ke destinasi? Kalau ikut standard antarabangsa, masa respons yang ditetapkan adalah antara 10 hingga 15 minit, tapi di Malaysia pulak boleh menjangkau 45 minit. Hal ni boleh dikatakan sesuai dengan fakta bahawa hanya terdapat 0.28 ambulans untuk setiap 10,000 orang, tapi dah tentu, itu tidak boleh jadi alasan kukuh, terutamanya bila melibatkan soal hidup dan mati. Jadinya, boleh ke korang ambil tindakan terhadap ambulans yang lambat sampai? Ini apa yang kitorang dapat tahu. Kamu boleh saman syarikat ambulans Kalau ada orang yang buat salah pada kita atau buatkan kita kerugian, kita mesti nak bawa orang tu ke mahkamah atau dengan kata lain—saman diorang. Perkhidmatan ambulans sebenarnya ada tanggungjawab terhadap kita untuk sampai dengan cepat dan bawa kita ke hospital tepat pada masanya. Kalau diorang gagal penuhi tanggungjawab tu dan korang dapat mudarat darinya, korang sebenarnya boleh saman diorang di mahkamah. Kalau tuntutan korang tu berjaya, mahkamah akan gantung perkhidmatan ambulans tu dan korang akan diberikan pampasan berbentuk wang ringgit. Penyedia perkhidmatan ambulans sebenarnya boleh dibahagikan kepada 3, iaitu: ambulans hospital kerajaan, ambulans swasta dan ambulans dari badan kebajikan atau organisasi bukan berasaskan keuntungan (non-profit organization). Pengetahuan ni penting, sebabnya korang tak boleh saman diorang semua. Kalau ambulans tu datang dari hospital kerajaan, korang tak boleh saman hospital tu sendiri. Sebabnya, hospital tu sendiri bukan badan rasmi. Ini kerana, kesemua hospital kerajaan berada di bawah kelolaan pihak kerajaan, dan korang sebenarnya akan menyaman kerajaan Malaysia. Walau bagaimanapun, Kementerian Kesihatan Malaysia (KKM) akan menjadi salah satu pihak yang meneliti kes korang untuk mengetepikan sebarang pelanggaran. Untuk yang lain pula, kalau ambulans tu datang dari penyedia perkhidmatan swasta, korang boleh saman penyedia tu sendiri, sebab tak macam hospital kerajaan, penyedia perkhidmatan ni satu badan yang sah. Jadinya, ambulans kerajaan dan swasta boleh disaman… tapi macam mana pula dengan ambulans dari badan kebajikan dan badan bukan berasaskan keuntungan? Ada ambulans yang tak boleh disaman Ada dua contoh di mana korang tak boleh saman perkhidmatan ambulans: 1. Ambulans dari penyedia perkhidmatan kebajikan Ada ambulans yang disediakan oleh badan kebajikan dengan percuma. Kalau ambulans tu dihantar untuk tolong korang sabagai pertolongan atau dari badan kebajikan, korang tak boleh ambil tindakan undang-undang terhadap diorang. Sebabnya, diorang cuma tolong korang dan diorang tak ada tanggungjawab macam apa yang ada pada ambulans biasa. Selain tu, korang juga tak boleh minta diorang bertanggungjawab sebab badan kebajikan takde banyak ambulans macam yang hospital kerajaan dan swasta ada. Sebab tu, perkhidmatan ambulans diorang takde di banyak tempat dan mustahil untuk diorang sampai ke sesuatu tempat tu dalam masa yang singkat. Bila korang telefon 999, aduan korang selalunya akan dihubungkan kepada ambulans kerajaan atau swasta. Untuk nak dapatkan perkhidmatan ambulans dari badan kebajikan pula, korang kena hubungi diorang secara terus. Antara perkhidmatan ambulans percuma yang dijalankan oleh pihak kebajikan adalah: Puteri Malaysia Ambulance St. John Ambulance Malaysian Red Crescent Society 2. Tak ada kaitan kuat antara ambulans yang datang lambat dengan kemudaratan dialami pesakit Memang betul kerja ambulans ni datang untuk ambil korang secepat yang mungkin… tapi masih ada beberapa perkara yang diorang berkemungkinan besar tak bertanggungjawab, walaupun korang bawa diorang ke mahkamah. Ia bukan isu hidup dan mati – sementara ambulans dijangka akan sampai dalam masa beberapa minit, keutamaan sebenarnya diberikan kepada pesakit yang betul-betul parah, yang tahap kesedarannya dah lemah dan dalam keadaan yang betul-betul serius. Tak buat apa-apa untuk selamatkan keadaan – kalau masa tu ada peluang untuk dapatkan bantuan atau doktor rawat korang dulu, korang mungkin takde kes yang kuat. Kalau penyedia perkhidmatan ambulans boleh membuktikan yang diorang terlambat sebab keadaan di luar kawalan diorang. Contohnya macam: masalah pada alamat atau maklumat yang diberikan atau terpaksa berdepan dengan kesesakan lalu lintas yang teruk. Ambulans yang datang lambat tak bagi apa-apa kemudaratan kepada korang – kalau ambulans datang lambat, tapi keadaan korang sebenarnya taklah serius sangat. Korang boleh dikatakan takde kes dengan penyedia ambulans. Korang cuma boleh ambil tindakan terhadap diorang kalau korang dapat mudarat sebab ia datang lambat. Pada dasarnya, perlu ada hubungan yang kuat antara kelewatan ambulans dengan kemudaratan yang dialami. Ini dikenali sebagai penyebab. Dan kalau takde penyebabnya dapat dibuktikan, korang tak boleh minta pihak penyedia ambulans bertanggungjawab. Tak ada apa-apa halangan untuk korang bawa kes ke mahkamah, tapi kemungkinan besar korang tak akan ada kes yang kuat, atau hakim akan tolak (membatalkan) tuntutan korang tu. Dalam kes tertentu, ambulans yang datang lambat boleh jadi jenayah Walaupun mungkin ada yang nak saman ambulans yang datang lambat, tapi kadangkala tak perlu kerana ada sebab-sebab tertentu yang boleh buatkan ambulans yang datang lambat dianggap sebagai jenayah. Contohnya macam kes di Kuching yang kitorang ceritakan di awal artikel tadi. Pemandu ambulans tu dah didakwa di bawah Seksyen 43 Akta Pengangkutan Jalan 1987, kerana memandu dengan tak cermat dan tak bertimbang rasa. ...hendaklah dihukum denda tidak kurang daripada empat ribu ringgit dan tidak lebih daripada sepuluh ribu ringgit dan boleh juga dipenjarakan selama tempoh tidak melebihi dua belas bulan. Pemandu tu didakwa atas kesalahan ni sebab dia sengaja menangguhkan masa untuk bawa pesakit ke hospital tepat pada masanya. Sengaja di sini tak bermakna dia memang nak buat benda tu, tapi lebih pada keadaan yang mana dia tahu apa akibatnya kalau dia tak cepat bawa pesakit ke hospital, tapi dia masih lagi pilih nak melambatkan masa. Jadinya, kalau korang berada dalam situasi macam ni dan korang rasa pemandu tu tak fikir pun pasal kepentingan bawa korang ke hospital tepat pada masanya, korang bolehlah buat laporan polis. Polis akan dapatkan maklumat yang cukup, siasat dan dakwa pihak terlibat dengan peruntukan undang-undang yang sewajarnya."
"Can you stop beauticians from recording your facial in Malaysia? It has been a hectic week. The only thing you look forward to now is your monthly spa session at your favourite local spa centre. Everything seemed as per usual during your treatment. The cool sensation of the facial mask tingles your skin, the cucumbers over your eyes were soothing—it was all relaxing until...you hear the beautician “explain” the procedure of the treatment you were undergoing. Hmm...funny how she has never done that before. Once your session ended, you check your phone and see a message from a friend saying she saw you getting your facial done—on Facebook! You immediately ask the beautician whether she took any pictures of you while you were undergoing treatment. She admits, saying that your facial treatment was livestreamed on their Facebook page to thousands of followers. (NOTE: The law applies similarly for any form of recording: videos, photos, livestream etc.) Now, you’re both shocked and angry because firstly, she never got your permission to record you and second, thousands of people would now know the secret to your radiance and beauty—okay, maybe the latter isn’t much of a concern. Here’s a little backstory on how this article came about: One of our readers actually faced a similar situation and asked us if she could do anything about it. So this led us to find out if it is legal for beauticians to take pictures or videos of their customers during treatment? There are no laws stopping someone from taking pictures Generally, there are no laws in Malaysia prohibiting that person from taking pictures of you—in public. However, it’s important to note that this excludes any picture or video that might be humiliating or insulting to you. If someone takes a lewd picture to humiliate or make you look bad, they can be charged under Section 509 of the Penal Code which states the following: “Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard...or intrudes upon the privacy of such person, shall be punished with imprisonment for a term which may extend to five years, or with fine, or with both.” So if this happened in a beauty centre (ie; a spa, beauty parlour, salon etc.) and the beautician takes any pictures/videos that can damage your reputation or humiliate you, then you have the right to sue them. [READ HERE: Can you legally stop someone from taking photos of you in Malaysia?] But what if it was just a normal video of you being given a facial treatment—and the beautician takes the video where she explains the treatment procedure to a live audience? Well, so long as it is done with your consent, there is no issue here. However, even if the beautician does not get your permission and filmed you, she’s still NOT AT FAULT...legally. Now, before you stop visiting spas and beauty centres altogether, you might want to read on. The beautician may record your facial but... While Malaysian law recognises our right to privacy, suing someone for an invasion of privacy is slightly more difficult. The victim would need to prove an extra element, such as humiliation, harassment, or damage to someone’s reputation for any action to be taken. If the spa centre or beautician posts any pictures or videos of you during your treatment and you feel that it might potentially damage your good name, then you may have grounds to sue them for defamation or for insulting your modesty (as mentioned above). But if you cannot prove the 2 grounds stated above, the beautician technically did not commit any wrongdoing—as she did not physically intrude your privacy. In other words, there are no specific laws on the invasion of privacy in Malaysia. Most cases involving privacy relies on previous court decisions (precedence). So, if you want to sue the spa centre for taking pictures or videos of you and posting them on their social media page, chances of you to do so would be slim—unless you have endured some kind of trauma or humiliation which came from invasion of privacy. [READ MORE: There's no law against upskirt recording in Malaysia. So what can we do?] Now, this does not mean there are no regulations stopping spas and its workers from filming you... Beauty centres have a set of guidelines to follow In 2013, the Ministry of Domestic Trade, Co-operatives and Consumerism (KPDNKK) came up with some guidelines for the beauty industry in Malaysia. Those who work as beauticians, beautician, beauty consultants and spa therapists among others, are bound to these regulations. The Guidelines state the general and prohibited services that can be offered in beauty centres. It also includes the Code of Ethics that need to be followed by beauticians or aestheticians in the industry. Part 7.1(iv) states the following on taking photos and videos of customers: “All beauty therapists shall abide by the Code of Ethics and good practices...obtain consent from clients before taking pre and post photography as evidence of effectiveness of treatments. No picture of clients may be used for advertising or publicity purposes unless the prior consent of clients is obtained...” The code of ethics basically states that beautician must get permission from their client before and after treatment. If they fail to do so, customers have the right to make a complaint to KPDNKK on their site or call their hotline: 1-800-886-800. But just to be extra cautious, it is always good to inform the beautician on what you do and do not allow during the treatment. Some centres ensure their clients sign a contract before undergoing any procedure. Perhaps it would help to read through the terms and look out for relevant clauses that involve photography and customer reviews."
"In M'sia, can you sue someone for breaking a contract if your name isn't mentioned in it? Your friend just gifted you this amazing holiday package that takes you on a week long trip to the Bahamas, complete with a five-star hotel and complimentary spa treatments. Excited, you apply for leave from your company and buy flight tickets to the Bahamas. As you step foot into the hotel, you notice that it is most definitely not a 5-star accommodation. As the holiday progresses, you feel worse and worse. Not only was your room dirty but the spa treatments were basically a random hotel worker rubbing onion slices all over your body. Feeling cheated, you decided to sue the company that sold the package to your friend only to be told that you can’t sue because you were not part of the contract…? What does that even mean? If you were enjoying the contract, you were obviously part of it...right? Contracts are “private” We don’t mean private in the sense that you can’t show the contract to anyone else but we are referring to the concept of privity of contract. Privity of contract basically means that you can only sue or be sued if you are a party to the contract. Any other person who is not a party of the contract cannot sue or be sued on the contract even if the contract was actually entered into to benefit them. Let’s check out some examples to illustrate this point: Ali entered into a contract to buy Abu’s house. Either Ali or Abu can sue and can be sued on this contract. Ali entered into a contract to buy Abu’s house for Ali’s daughter. Either Ali or Abu can be sued on this contract. Ali’s daughter cannot sue or be sued on this contract. The easiest real life example we could give you guys is how parents enter into contracts with driving schools to provide driving lessons to their kids. The kids are not a party to the contract but they are the ones benefitting from it. However, if a breach of contract happens through either the kid’s, the school’s, or the parents’ fault, the only parties that can sue or be sued on the contract are the parents and the school. Likewise in our earlier scenario, you cannot sue on the holiday package because it was made between your friend and the company. But hang on, where did this whole idea of privity come from? It started when these English parents wanted to give their kids some money Way back in ye olde England in 1861, two young kids were about to get married. The overjoyed parents, realising that the millennials of the 19th century had a rough time ahead, entered into a contract where the father of the bride and groom agreed to give the happily married couple some money. The father of the bride, however died before paying the money and similarly, the father of the groom died before being able to sue on the contract. Realising that the baby boomers won again money was unpaid, the groom proceeded to sue the bride’s father’s estate for the money. The courts argued that the son’s action would not succeed because to be able to sue on a contract, consideration for the promise must move from him and he must be a party to the contract. While the contract was made to benefit him and his wife, this was not a sufficient reason to allow him to sue on the contract. This was the decision in the case of Tweedle v Atkinson and has been one of the cornerstones in contract law for eons. While the UK has moved on to create exemptions for this strict rule, Malaysia adopted it strictly in the case of Kepong Prospecting Ltd v Schimdt. The adoption of the rule of privity without any provisions in the Contracts Act 1950 has created some problems as you can probably guess that many contracts are entered into daily with the idea of providing benefits for a third party Before you start frantically rewriting all your contracts to include your uncle, aunt, third wife, neighbour’s dog, neighbourhood cat, etc calm down because… A general strict rule gives birth to exceptions Given the potential harshness of this strict rule, the courts in Malaysia have come up with several ways to workaround it so let’s deal with them in turn. The agency principle The agency principle is basically when there is a principal (something like a big boss) and agent (the underling) relationship. The agent then enters into contracts on behalf of the principal. Technically, this makes the principal a third party to the contract who is then unable to sue or be sued on the contract. An example of common principal-agent relationships can be seen through sales agents that make sales on behalf on the company. In the case of The Golf Cheque Book Sdn Bhd v Nilai Springs Bhd, the courts said this: “But it is central to the doctrine of privity of contract that the parties to the contract are contracting on their own behalf and not as the agent of some third party, be that third party a disclosed or an undisclosed principal. Because it is a well established principle that agency is an exception to the privity doctrine.” Basically, the courts said that the doctrine of privity doesn’t apply when you enter into a contract on someone’s behalf. Collateral contracts Collateral contracts are basically contracts that exist alongside the main contract and its existence is dependent on the main contract. Collateral contracts can exist anywhere so it is pretty hard for us to give a definite example of it but a collateral contract may exist if for example, you signed a contract to buy a house. After signing it, you notice some cute garden gnomes and ask the seller if he would throw them in and he says yes. Voila, collateral contract. In the case of Oriental Bank Bhd v Uniphoenix Corp Bhd, the courts stated that collateral contracts can be the exception to the privity rule. The reasoning behind this goes as follows – if the promisor to the main contract promises the third party that he will perform his obligations under the main contract, then a collateral contract exists. A failure to perform the contract then becomes a breach which the third party can sue on. However, in order for the collateral contract to be enforceable, the third party must have provided consideration under the contract as well. You can read more about considerations here. Trust Some of you may have come across trusts. To explain it briefly, a trust is when someone gives another person property to hold on behalf of a third party. They are commonly used to hold monies for charitable organisations or for parents to benefit their minor children, who are not old enough to contract yet. For example: Ali has been diagnosed with cancer. He wants to give his house to his son but he is only 3 years old. Ali gives his house to Abu to hold on trust for his son. If there is a trust, then the third party is able to sue the parties to the trust if they breach the trust. However, the intention to create a trust is a paramount consideration for the courts to allow this to circumvent the privity rule. While these exceptions exist, they are pretty limited and rather confined to specific scenarios. With that being said, now that you guys know that such a thing exists, you can alwayssss Look for a lawyer We know that this is the trite phrase that we always throw out but in law, no one shirt fits everyone. While the rules of privity prevent you from directly enforcing the contract, there may be ways to ensure that you are not left without a cure. For example, there is something known as an interveners application where you are allowed to “intervene” in a legal action if you can prove to the court that your rights would be affected by the outcome of the case. At the end of the day, unless you are incapacitated (for example, you are too young to contract), it might be best to contract as yourself."
"Got cheated shopping online in Malaysia? Here are 4 ways to get justice (or a refund) “SCAM ALERT!” You may have seen Facebook postings which begin with those words, and they usually have the same tune. Someone bought something online for cheap, and they didn’t receive their item. It’s a frustrating situation to be in, especially because there’s a possibility that you’re left without your item and your money. But fortunately, there are some relatively user-friendly methods to get your money back. But before we get to those methods, we acknowledge that there are many ways you can shop online, but we’ll only be focusing on the following two types of online shopping: Buying directly from an online platform; like Lazada or Shoppee. you usually can ask for a refund you can bring an action in the small claims court you can make a complaint at the Consumer Affairs Tribunal you can make a police report Buying from an independent seller using a third party site; like on Facebook Marketplace or Mudah you can bring an action in the small claims court you can make a complaint at the Consumer Affairs Tribunal you can make a police report We’d start with the most straightforward one which is the online platform, and the first thing you need to know is… 1. You can get a refund from the online platform Things are pretty direct when we buy items from online platforms because they have their own terms and conditions. So all we have to do to get our money back is basically follow what’s stated in their terms. For example it may say something like this: “If Seller has failed to deliver the Goods in accordance with the Contract or within a reasonable time, the Buyer shall, by serving a written notice to the seller, be entitled to demand performance within a specified time thereafter and such specified time shall be no less than 14 days. If the seller fails to do so within the specified time, the Buyer shall be entitled to terminate the Contract and claim a refund in respect of the undelivered Goods.” – Sample terms and conditions from an online platfrom But what if the platform doesn’t honour their terms and conditions? This is where we go into the other legal options that you can take to get your money back. While chances are likely that established online shopping platforms will honour these policies, the same may not be said for independent sellers advertising their wares on Facebook Marketplace or their own social media pages. So, while the options below are more in relation to independent sellers, they can be applicable to online shopping platforms as well. 2. Small claims court – RM 5,000 If you’re choosing this option to get your money back, you’d be technically suing the online seller for a breach of contract. This is because, while we may think that contracts are these complicated documents that you sign, it also covers simple buy-and-sell situations. So when you agree to pay the seller money in exchange for the seller to send you the item, it amounts to a contract – if the seller fails to give you the item, he’s breaching the contract. So you’ll be taking this action in the small claims court, and the court got its name because it only handles claims less than RM 5,000. In addition to that, the court procedures are easy enough for for anyone to use with no lawyer required. We’ve actually covered the procedures to start a case in the small claims court before, and you can click on the link below to find out more. [READ MORE: How to file a claim in a small claims court] So once you’ve followed the procedures to start your case, these are the most important things to show the judge: First, you’d have to prove that there’s a contract between you and the seller. You can do this by providing a screenshot of the texts between you and the seller, or a print out of the order confirmation. Secondly, you’d have to prove that the seller didn’t send the item to you. For example by screenshots of you texting the seller asking for your item; or by failure of the seller to show a postage receipt. Oh and as we’ve mentioned, the small claims court can only hear claims less than RM 5,000. So if your item does cost more than that, you can make a complaint at... 3. Consumer Affairs Tribunal – RM 25,000 A Consumer Affairs Tribunal (CAT) is kinda similar to a court, but it’s built for the sole purpose of handling disputes between buyers and sellers where the claim is less than RM 25,000. So why would you want to choose this option instead? Well besides the CAT being able to handle claims less than RM 25,000, it has really easy procedures to follow. All you would have to do is fill up the online form here, and pay the RM 5.00 processing fee. After that you may have to send certain documents to seller informing him you’ve made a complaint, and then the CAT will set up a date for the hearing. At the CAT there will be someone in charge of your case, and what they’d do is help mediate a settlement between you and the seller. In the event that you and the seller can’t settle it among yourselves, a decision will be given – which may include asking the seller to return your money. If you’re wondering if you can make a complaint to the CAT if your item costs less than RM 5,000, the answer is YES. In fact, you may prefer this option as the CAT is meant to handle situations like these. Plus compared to the small claims court where you’d actually need to go to court to fill up the form, at the CAT you can just do it on your laptop. 4. You can also make a police report Before we go on, we’d have to emphasise that by making a police report you will not get your money back but you’d get justice. And you should know, even if you do make a police report, you still have the right to sue the seller or make a complaint at the Consumer Affairs Tribunal. So one thing we’d have to consider against an online seller, is the fact that he may actually be committing a crime of cheating under Section 415 of the Penal Code. The law basically illustrates that a seller who intended to cheat you from the start and never intended to deliver the item to you, commits a crime. Here’s an example which may help to understand the section: Ali advertises that he’s selling his phone for RM500 Ali and Muthu agree on the sale, and Muthu sends RM500 to Ali’s account Ali doesn’t send Muthu the phone -------- Muthu makes a police report against Ali -------- If it turns out that Ali never intended to sell the phone, and the whole offer was to take Muthu (or anyone else’s) money – Ali is commiting the crime of cheating If it turns out that Ali actually wanted to sell the phone but changed his mind later – It’s not a crime, but a breach of contract In the latter situation where Ali only breaches the contract, the easiest thing for him to do is to actually return the money. And if that’s the case, that wouldn’t be an issue for you. But if Ali doesn’t return the money, how’s the PDRM gonna decide whether the seller intended to cheat you? Well it’s not gonna be easy for them, but what you can do is assist them by providing proof that he has done this to other buyers before, or less likely he texted you saying “HAHAHAHA, you got cheated!”. If however the PDRM can’t do anything because it’s not crime, remember you still may have the right to sue or make a complaint at the CAT. And we have to emphasise again, if you do make a police report, you might get justice but you may not get your money back. These procedures only work if you know the identity of the seller So all these methods that we’ve listed will only work if you know the identity of the seller. It is possible that sometimes online sellers may use fake profiles when advertising goods – in such cases without the real name of the seller, it’s difficult to take action. In addition to that we may also have to consider the fact that it’s possible to buy items from foreign sellers and foreign platforms (Amazon, Ebay, etc). Similar to above, it’s gonna be close to impossible to take action against them, because they’re out of the jurisdiction of the courts and PDRM. Nevertheless even if you’re in such circumstances, it’s probably best to make a police report just in case. And as a pre-emptive measure, it’s always prudent to remain careful when online shopping. Thus, it’s best to make sure that the seller has good reviews and his details are available and seems legit."
"Polis lambat sangat sampai...boleh ke kita saman? Bila korang berada dalam keadaan bahaya dan rasa tak selamat, benda pertama yang korang akan fikir mesti nak call polis – dengan harapan diorang akan sampai dalam beberapa minit dan buat semuanya selamat balik. Tapi macam mana kalau diorang tak datang tepat pada masanya? Kalau korang ni jenis tak pernah call polis, cuba bayangkan senario ni: Masa tengah tunggu bas, tiba-tiba ada pergaduhan terjadi berdekatan dengan korang. Korang nampak kumpulan tu ada senjata macam parang dan dapat rasa pergaduhan tu boleh jadi lebih buruk, dan akan membahayakan orang sekeliling. Korang pun buatlah tindakan sepatutnya dan terus call polis. Tapi lepas beberapa minit korang tunggu, sorang polis pun korang tak nampak. Kalau korang berada dalam situasi macam ni, korang mesti ingat yang polis akan datang secepat mungkin lepas korang call 999. Sebabnya, tugas polis ni memang untuk jaga keamanan kan? Tapi untuk banyak sebab, polis kemungkinan tak dapat sampai seperti mana yang kita harapkan. Tapi bukan sekadar kalau korang rasa polis datang lambat. Inilah dia yang dikatakan masa relatif (subjektif), iaitu korang mungkin rasa yang masa tu bergerak perlahan sangat bila korang berada dalam keadaan panik atau bahaya; tapi sebenarnya pergerakan masa tu normal je. Untuk itu, tujuan artikel ini adalah, kita nak lihat masa sebenar yang polis ambil untuk sampai ke sesuatu tempat (atau kejadian). Jadi, adakah PDRM akan datang sebaik je terima panggilan atau diorang ada had masa untuk sampai kepada korang? PDRM patut datang dalam tempoh masa 8 minit Sebenarnya, PDRM ada tempoh masa yang memerlukan diorang bertindak balas terhadap sesuatu panggilan dan sasaran tu adalah dalam tempoh 8 minit. Walaupun ia bukanlah undang-undang yang dah tertulis, tapi ia menjadi sebahagian daripada Prosedur Operasi Standard (SOP) dan Rancangan Malaysia ke-11 iaitu untuk menurunkan kadar jenayah dan meningkatkan keselamatan awam. Pada tahun 2015, masa yang disasarkan adalah di bawah 10 minit. Kesannya, tinjauan yang dijalankan menunjukkan bahawa penurunan dalam masa tindak balas memberi hasil yang yang positif. Bagaimanapun, masa sasaran dalam SOP ni kadangkala agak sukar untuk dicapai kerana beberapa sebab. Antaranya adalah: jarak antara balai polis dengan lokasi pemanggil maklumat yang diberikan pemanggil tak cukup jelas balai polis kurang kakitangan Dalam satu artikel dari Channel News Asia pada November 2018, dilaporkan lebih 500 dari 791 balai polis di negara ni mengalami kekurangan kakitangan. Benda ni jadi masalah besar kerana walaupun PDRM nak hantar bantuan segera, diorang mungkin tak cukup kakitangan untuk respons kes-kes kecemasan lain. Tapi tak kiralah apa sebabnya, keselamatan atau nyawa seseorang tu mungkin dipertaruhkan, jadi soalan yang masih tinggal… Boleh ke PDRM disaman sebab datang lewat? Bila je kitorang sebut “saman” atau “tindakan undang-undang”, apa yang sebenarnya kitorang rujuk adalah sesuatu yang dipanggil sebagai tort. Korang boleh baca artikel kitorang kat bawah, tapi secara asasnya, tort adalah salah laku yang bukan kesalahan jenayah, di mana korang boleh tuntut pampasan (biasanya dalam bentuk wang). Terdapat banyak jenis tort yang berbeza-beza, tapi untuk kes polis datang lambat, ia kemungkinan besar akan jatuh dalam kategori tort kecuaian. [BACA LAGI: Did you know you can be taken to court for something that is NOT a crime?] Untuk tentukan sama ada kelewatan terhadap sesuatu panggilan tu sebab kecuaian atau tak, kita kena belajar sikit pasal undang-undang kecuaian. Undang-undang pasal kecuaian didapati daripada set kes-kes mahkamah yang lalu, bukan undang-undang yang diluluskan oleh Parlimen. Pendek kata, kalau seseorang dikatakan cuai, dia mestilah... kena ada kewajiban terhadap korang dia dah melanggar tanggungjawab korang mesti dapat kemudaratan hasil dari pelanggaran tanggungjawab orang tu Tapi di sini ada juga plot twist – polis tak ada tanggungjawab penjagaan terhadap korang. Ini mungkin tak masuk akal, tapi biarkan kitorang jelaskan dengan lebih terperinci. Polis sebenarnya ada tanggungjawab umum kepada semua orang, bukan kepada korang je. Ini bermakna, semua panggilan yang polis dapat tu penting, dan memberi keutamaan untuk satu je panggilan adalah tak adil. Berdasarkan kajian kitorang, setakat ni tak ada lagi rakyat Malaysia yang saman polis sebab datang lambat. Tapi, ada kes Michael v Chief Constable of South Wales Police [2015] di UK yang mungkin boleh bagi korang idea kalau korang terfikir nak cuba. Kisahnya, seorang wanita Joanna Michael dah call polis dan bagitau yang teman lelakinya nak bunuh dia. Panggilan dia tu dijawab dan dipindahkan ke balai polis berdekatan. Balai polis yang pertama dah kategorikan panggilan Joanna ni sebagai mustahak. Tapi bila panggilannya tu dipindahkan kepada balai polis berdekatan, operator tu tak kata yang ada orang nak bunuh Joanna. Ini menyebabkan balai polis kedua kategorikan panggilan Joanna ni kurang satu level dari mustahak. Jadinya, masa polis sampai ke rumah Joanna, dia dah ditemui mati. Keluarga Joanna kemudiannya bawa polis ke mahkamah, dan tuduh polis melakukan kecuaian sebab tak hantar bantuan secepat mungkin. Tapi Mahkamah Agung memutuskan yang polis tak cuai. Ada dua sebab kenapa: Sebab takut disaman, polis mungkin akan datang kepada orang tertentu dulu, dan ini tak adil kepada orang ramai secara keseluruhan. Kalau ramai orang tak puas hati dengan kepantasan polis respons panggilan diorang, ramai yang akan saman polis dan mesti akan berlambak tuntutan. Ini akan buatkan bebanan kewangan pada polis. Oleh itu, kalau korang nak saman polis macam apa yang keluarga Joanna buat, tuntutan korang tu berkemungkinan besar tak akan berjaya kerana polis tak ada kewajiban terhadap korang sorang. Selain tu, ada juga tempoh masa yang kita semua perlu ambil kira. Seksyen 2 Akta Perlindungan Pihak Berkuasa Awam 1948 menetapkan sebarang tuntutan terhadap pegawai penguatkuasa mesti dibuat dalam tempoh 3 tahun dari waktu kejadian. Apa yang korang boleh buat, kalau tak boleh saman? Kalau korang tak boleh atau tak mampu nak saman, pilihan terbaik yang korang ada adalah buat aduan dekat Ibu Pejabat Polis Daerah (IPD). Kalau mereka tak buat apa-apa tindakan, korang boleh bawa aduan tu ke Suruhanjaya Integriti Agensi Penguatkuasaan (EAIC). Diorang akan mendengar apa-apa aduan terhadap pegawai penguatkuasa yang gagal jalankan tugas dengan baik. Nak tahu lebih lagi pasal apa yang EAIC ni buat dan macam mana nak buat aduan: [BACA LAGI: M'sian authorities have to investigate if their officers mess up. But what if they don't?] PDRM sebenarnya sedar dengan masalah ni dan tengah ambil langkah-langkah menambah baik masa tindakan balas diorang. Mereka juga memperkenalkan apps melaporkan jenayah yang lebih cepat dan mudah. Ini dapat menolong mangsa yang tak boleh bercakap (contohnya) dan akan membantu mengelakkan ketidaktepatan dalam maklumat kerana talian yang tak jelas. Disamping tu, PDRM telah diperuntukkan lebih banyak kenderaan, supaya kereta ronda polis boleh sampai lebih cepat lagi. Kereta-kereta ni juga dilengkapi dengan teknologi yang membolehkan mereka berkomunikasi lebih baik dengan operator panggilan serta pemanggil sendiri. Tapi kalau korang berada dalam keadaan yang korang rasa PDRM kena bertanggungjawab, berundinglah dengan peguam korang dan cari cara terbaik untuk melakukannya."
"Can Malaysian companies force you to take annual leave? So it’s CNY end of this week. Because of the MCO, you can’t balik kampung this year. So you decide not to take any additional leave and save them for another time. Later during the day, you receive an email from your boss asking you and your colleagues to take 2 EXTRA days off (on Monday and Tuesday). But he tells you to use your annual leave – which you’ve been wanting to save for personal reasons. And at the end of the email, there’s a fine print saying, “Annual leave is compulsory”. Feeling confused, you can’t help but wonder now…if it is legal for your boss to force you to take annual leave? But here’s something you should know first... You’re entitled to annual leaves When you sign your contract, you would have noticed the different kind of leaves stated in your contract (includes annual leaves, sick leave, public holidays etc.) So, annual leaves are paid leaves which are stated under Section 60E(1) of the Employment Act 1955: “An employee shall be entitled to paid annual leave of— (a) eight days for...a period of less than two years; (b) twelve days for...a period of two years or more but less than five years; and (c) sixteen days for...a period of five years or more.” Based on the Act, the amount of days you get depends on how long you’ve been working for the company. These annual leaves are your rights as an employee and can be taken for any reason. You would be pleased to know that you do not actually have to inform your boss on why you want to take annual leave. Perhaps this is best explained by a Malaysian judge: Annual leave is usually taken for personal reasons. It is intended for leisure, enjoyment and travel. It should not be enforced on the employee merely to suit the Company’s convenience. – Harun Hashim J. in Dunlop Malaysian Industries Bhd vs Dunlop Industries Employees Union (1982) Now that you know this...what happens if your employer forces you to “take a break”? [READ MORE: 5 types of leave in Malaysia (and if you will be paid when you take them)] If you don’t want to take leave, you don’t have to take leave It might feel like a dream come true if your boss asks you to take a day off or two from work. However, forcing an employee to take a day off may not be legal in Malaysia. We managed to clarify this with the Malaysian Human Resource Ministry, and here’s what they had to say: “...An employer cannot force his employee to take annual leave on the...employer’s own accord.” – email translated by AskLegal.my So, you’re entitled to your annual leaves. This is completely different from unpaid leaves where you don’t get paid for it. Perhaps this case would help illustrate the statement above better: In Kesatuan Pekerja-pekerja Continental Tyre PJ Malaysia Sdn Bhd v Continental Tyre PJ Malaysia (2015), Continental forced their workers to take annual leave during a plant shut down. However, Continental did not pay the workers their wages to go on leave. Basically, they were forced to take unpaid leave (which is illegal). The court decided that Continental had the right to shut down the plant, but did not have the right to force their workers to take annual leave during those days. Therefore, the company was ordered to either: Pay the workers for the days they had not been paid; or, Grant them 2 days of annual leave from the date of the court decision. Now, if you’re to planning to sue your company (if they have ever forced you to take annual leave), perhaps you should also know a little bit about your boss’ powers... Your boss can reject your leave application As much as annual leaves are our rights as employees, we still have to be reasonable while applying for one. So this is what happened in Azinah binti Aziz v Overseas Assurance Corporation (Malaysia) Berhad, where the court decided that an employee cannot take his/her annual leave whenever he/she feels like it. Azinah brought up a case against her company for dismissing her because she took leave without the company’s approval. The court then stated, that although she has been working in the company for 20 years, but the company has the right to dismiss her if she takes leave without approval from her boss. Taking a day off without consent from your boss is classified as a case of serious misconduct. So this means, employers have the discretion to reject leave applications – but only if: Insufficient notice was given to take annual leave. The annual leave application did not comply with the company policy. Other employees are going on leave during that period. There is urgent work that needs to be completed and the employee needs to be at work. So before applying for leave, the best thing to do is to just check with your boss or the HR in your company first. As for your rights, if you feel you’ve been forced to take annual leave or you’re unsure about a certain employment-related matter, you can make a complaint to the Ministry of Human Resource on their site or call them on their 24-hour hotline: +603-8000 8000. But before doing so, it’s probably best to talk to your employer first, and find a solution both of you can agree on. [READ MORE: If your boss refuses to pay you in Malaysia, what can you do?]"
"Pada 1947, Tanah Melayu hampir ada Perlembagaan yang berbeza dengan sekarang  [Click here for English version] Walaupun tak semua dari kita tahu Perlembagaan Persekutuan dengan terperinci, tapi sebagai rakyat Malaysia kita tahu tentang kepentingannya. Ini kerana Perlembagaan Persekutuan adalah undang-undang tertinggi di negara ni. Walaupun dah lebih 60 tahun Perlembagaan ni wujud, ia tetap kekal releven sampai hari ni, hinggakan Parlimen sendiri tak boleh luluskan undang-undang yang bertentangan dengan Perlembagaan Persekutuan, kecuali untuk beberapa pengecualian. [BACA LAGI: Where does Malaysia get its laws from?] Pada hari ni, Perlembagaan Persekutuan adalah satu-satunya dokumen yang dirujuk untuk menjadi asas segala undang-undang dan hak-hak sebagai rakyat Malaysia. Tapi, korang tahu tak yang… Kita hampir ada Perlembagaan yang cukup berbeza dengan sekarang? Tapi, sebelum kita tengok perbezaan antara Perlembagaan tu dengan Perlembagaan Persekutuan yang ada sekarang, kita kena faham dulu latar belakang politik dan sosial lepas Penjajahan Jepun, dan apabila British kembali mentadbir Tanah Melayu. Bila mana British masih mentadbir ""Keburukan orang British selama dia menjajah Tanah Melayu, dia mengaut harta benda dalam Tanah Melayu ini. Tanah Melayu masa itu penuh kaya dengan hasil.” – Zainuddin Andika, ahli PKMM. Lepas tamatnya Perang Dunia Ke-2 pada 1945, kesan dari perang itu menyebabkan kebangkitan semangat inginkan kebebasan, dan kebencian rakyat terhadap British mula membuak. Propaganda pro-kemerdekaan mula menjadi bacaan masyarakat dan semangat tu semakin bertambah bila revolusi kemerdekaan Indonesia berjaya. Dalam kerancakkan mengejar kemerdekaan, sebuah parti politik ditubuhkan iaitu – Parti Kebangsaan Melayu Malaya (PKMM). Tak lama lepas tu, satu lagi parti dibentuk yang dikenali sebagai Malayan Democratic Union (MDU) di Singapura (sebahagian dari Tanah Melayu masa tu). Dalam usaha British nak mengaut sumber Tanah Melayu untuk membiayai peperangan dan memulihkan negara tu lepas perang, British menjalankan dasar pecah dan perintah, bagi mengelak sebarang pemberontakan rakyat. Dengan sebahagian besar Eropah hancur akibat peperangan, British betul-betul nak pegang Tanah Melayu dan antara penyelesaian yang dicadangkan pada 1946 adalah untuk membentuk Malayan Union. Seperti mana kita tahu, Malayan Union ni ditentang hebat oleh orang Melayu, sebab ia akan menghapuskan kuasa Raja-Raja Melayu, isu kerakyatan dan meneruskan pentadbiran British di Tanah Melayu. Hal ni membawa kepada protes besar-besaran dan pembentukan Pertubuhan Kebangsaan Melayu Bersatu (PEKEMBAR), atau lebih dikenali sebagai United Malays National Organisation (UMNO). Pada mulanya, PKMM berkerjasama dengan UMNO untuk menentang Malayan Union, tapi kemudiannya PKMM dan sekutunya mula bergerak secara berasingan dari UMNO. Ini kerana PKMM mahukan kemerdekaan penuh dan mereka menerima sokongan kuat daripada masyarakat tani dan golongan pekerja. Jadinya, British kena pilih dengan pihak mana mereka nak bekerjasama. Sebab, British tak nak konflik yang jadi dalam gerakan kemerdekaan Indonesia terjadi pula di Tanah Melayu. Oleh kerana sikap UMNO yang lebih mesra dengan British berbanding PKMM yang agak radikal, akhirnya British memilih UMNO untuk membincangkan tentang pemansuhan Malayan Union. Rundingan antara British dan UMNO akhirnya membawa kepada cadangan pembentukan Perlembagaan untuk Persekutuan Tanah Melayu menggantikan Malayan Union. Cadangan ini kemudiannya jadi Perlembagaan Persekutuan 1948, yang seterusnya digubal balik oleh Suruhanjaya Reid sampailah jadi Perlembagaan Persekutuan 1957 yang kita ada sampai ke hari ini. PKMM tak senang dengan Perlembagaan UMNO/British, jadi mereka buat yang lain Walaupun kejayaan UMNO menamatkan Malayan Union disambut baik oleh sesetengah pihak, tapi masih ada yang tak rasa macam tu. “Sudah tentu kami menganjurkan satu penentangan... Ini satu lagi percubaan untuk mengembalikan gabenor penjajah, tetapi di bawah nama yang lain.” – Lim Kean Chye, pengasas bersama Malayan Democratic Union. Tak mahu adanya lagi Malayan Union 2.0, kumpulan ni bentuk satu barisan bersatu – merangkumi PKMM, MDU dan beberapa lagi kumpulan lain, yang diketuai oleh Tun Tan Cheng Lock (yang kemudiannya bentuk MCA). Dengan ni lahirlah Majlis Tindakan Bersama Seluruh Tanah Melayu atau All Malayan Council of Joint Action (AMCJA), satu pakatan politik dianggotai semua kaum, yang pertama di Malaysia. AMCJA lepas tu datang dengan cadangan perlembagaan mereka sendiri yang dikenali sebagai – Perlembagaan Rakyat Tanah Melayu (Perlembagaan Rakyat). Perlembagaan ini melindungi hak-hak rakyat seperti – pilihan raya, kebebasan bersuara dan berpersatuan, pentadbiran sendiri dan perpaduan kaum. AMCJA seterusnya buat keputusan untuk lancarkan ‘hartal’ (mogok/protes) pada 20 Oktober 1947, dan ia dapat sokongan besar-besaran dari rakyat. British pun mula rasa kurang selesa dengan tindakan AMCJA ni, jadi mereka luluskan Ordinan Pertubuhan dan gunakan Pendaftar Pertubuhan untuk mengharamkan dan melumpuhkan ahli-ahli AMCJA. Dan tindakan tu menjadi tanda berakhirnya AMCJA dan Perlembagaan Rakyat. Makanya, UMNO dan sekutunya terus memperjuangkan kemerdekaan pada tahun 1950-an dan akhirnya pada 1957, kita pun diisytiharkan merdeka. Tapi mesti ada di antara korang yang nak tahu pasal apa yang AMCJA ni perjuangkan kan? Kami tak dapat la tulis panjang lebar dekat sini, tapi korang boleh tonton dokumentari – “10 Tahun Sebelum Merdeka” karya Fahmi Reza. Dalam dokumentari tu ada cerita pasal AMCJA dan Perlembagaan Rakyat. Dan soalan yang timbul adalah… Apa bezanya antara cadangan AMCJA dengan Perlembagaan Persekutuan? Walaupun kami buat perbandingan antara cadangan AMCJA dan Perlembagan Persekutuan, perbandingan ni bukan nak kata mana yang lebih baik. Ini kerana, cadangan Perlembagaan Rakyat Tanah Melayu (Perlembagaan Rakyat) mewakili senario ideologi yang tak pernah direalisasikan. Manakala, Perlembagaan Persekutuan adalah hasil rundingan dan kompromi antara mereka yang terlibat dengan British (termasuk juga pindaan-pindaan yang dibuat selepas itu). Cukuplah nak kata yang kami lihat hal ni dari segi sejarah, sebab kita sendiri tak tahu apa versi Perlembagaan Rakyat yang akan diterima pakai (atau apa yang akan jadi) kalau ia diterima dulu. SINGAPURA Perlembagaan Persekutuan Dah tentu kita tahu apa yang jadi pada Singapura dalam Perlembagaan Persekutuan. Asalnya, tak ada Singapura atau Sabah dan Sarawak dalam Perlembagaan Persekutuan. Tapi, Akta Malaysia 1963 dah buat perubahan penting dalam Perlembagan Persekutuan, bila mana Singapura, Sabah dan Sarawak membentuk Malaysia. Tapi bila Singapura disingkirkan, Perlembagaan diubah sekali lagi, dengan Akta 59/1966 yang memansuhkan Singapura sebagai negeri dalam Perlembagaan (lihat Artikel 1 Perlembagaan Persekutuan). Perlembagaan Rakyat Seksyen 1 dalam Perlembagaan Rakyat menyatakan Singapura sebagai sebahagian dari Persekutuan Tanah Melayu, dengan AMCJA berhujah tak ada sebab untuk mengecualikan Singapura dan dari segi sejarah, Singapura sangat dekat dengan Tanah Melayu. TERMA MELAYU Perlembagaan Persekutuan Artikel 160(2) Perlembagaan Persekutuan mentakrifkan terma “Melayu” sebagai seseorang yang beragama Islam, berbahasa Melayu secara lazim dan menurut adat Melayu. Ia nampak mudah difahami dalam konteks moden hari ini. Perlembagaan Rakyat Perlembagaan Rakyat menggunakan istilah Melayu untuk semua warganegaranya. AMCJA dibentuk dengan percampuran kaum dan agama, dan tak mentakrifkan terma ‘Melayu’ seperti mana hari ini. Seksyen 2 dari Perlembagaan Rakyat mengatakan setiap warganegara Tanah Melayu dipanggil sebagai ‘Melayu’. Perlembagaan Rakyat juga ada postscript yang kata terma ‘Melayu’ sebagai warganegara tak ada sebarang implikasi agama. KEDUDUKAN ISTIMEWA ORANG MELAYU Perlembagan Persekutuan Artikel 153 Perlembagaan Persekutuan menyatakan tentang ‘kedudukan istimewa’ orang Melayu. Ia menyediakan tindakan afirmatif untuk orang Melayu dan anak negeri Sabah dan Sarawak, seperti yang dinyatakan: “Yang di-Pertuan Agong hendaklah menjalankan fungsinya di bawah Perlembagaan ini dan undang-undang persekutuan mengikut apa-apa cara yang perlu untuk melindungi kedudukan istimewa orang Melayu dan anak negeri mana-mana antara Negeri Sabah dan Sarawak”. Ia juga digunakan dalam memperkenalkan Dasar Ekonomi Baru (DEB) pada 1971 selepas berlakunya peristiwa hitam 13 Mei 1969. Hal ini sebenarnya agak kompleks sikit dan korang mungkin boleh klik sini untuk baca. Perlembagaan Rakyat Walaupun tak ada kedudukan istimewa seperti dalam Perlembagaan Persekutuan, Perlembagaan Rakyat melindungi agama Islam dan adat istiadat Melayu seperti mana yang termaktub dalam Seksyen 29. Ia menyatakan, hanya terdapat majlis dan persatuan Melayu dan Islam sahaja yang akan ditubuhkan untuk menjaga serta mencadangkan sebarang perkara berkaitan hal ehwal orang Melayu/Islam kepada Parlimen. Lebih menarik, Perlembagaan Rakyat juga menyatakan tentang pembentukan “Majlis Kaum” yang berperanan mencegah diskriminasi dan menggalakkan perpaduan kaum. Selain itu, majlis itu juga akan menganalisis setiap Rang Undang-Undang yang diluluskan di Parlimen bagi memastikan ia adil untuk semua kaum. Majlis ini juga dipisahkan dari Parlimen untuk mengelakkannya dari berat sebelah, dan ahli-ahlinya terdiri daripada semua kumpulan etnik utama termasuk Eropah, Arab, Yahudi dan Orang Asli. HAK DAN KEBEBASAN RAKYAT Perlembagaan Persekutuan Artikel 5 – 13 Perlembagaan Persekutuan menjamin hak-hak berikut: Hak untuk hidup, bebas, pendidikan, harta dan kesamarataan, Tiada perhambaan atau undang-undang retrospektif, Kebebasan berpersatuan, bersuara, berhimpun dan beragama. Bagaimanapun, kebebasan ni datang dengan beberapa pengecualian. Sebagai contoh, Akta Perhimpunan Aman menetapkan beberapa syarat supaya sesuatu perhimpunan itu sah di sisi undang-undang. Ada juga Akta Hasutan 1948 yang boleh digunakan untuk menyekat kebebasan bersuara. Selain tu, Perlembagaan juga memasukkan peruntukan yang boleh menyekat kebebasan peribadi dalam situasi tertentu, seperti Artikel 149 Perlembagaan Persekutuan yang membenarkan Parlimen untuk melanggar kebebasan asas yang dijanjikan dalam Perlembagaan semasa menghadapi krisis nasional. Contohnya adalah Akta Keselamatan Dalam Negeri (ISA) yang dah dimansuhkan dan Akta Kesalahan Keselamatan (Langkah-Langkah Khas). Perlembagaan Rakyat Andai kata Perlembagaan Rakyat kekal dan tak diubah dari cadangan asal, skop kebebasan asasi adalah lebih luas. Seksyen 6 – 18 Perlembagaan Rakyat menjamin hak peluang yang sama, kesaksamaan di sisi undang-undang, kesaksamaan jantina, kebebasan bersuara, penerbitan, berhimpun, agama dan pergerakan. Serta jaminan perbicaraan yang adil, hak kepada harta, gaji minimum, penjagaan di usia tua, hak untuk beriadah, untuk mendapat pendidikan, bercuti untuk semua pekerja, hak untuk membantah dan hak petisyen kepada Majlis Kaum untuk mendapatkan bantuan. Dalam Perlembagaan Rakyat, semua kebebasan asasi ini diberi tanpa syarat. KUASA PERSEKUTUAN Perlembagaan Persekutuan Perlembagaan Persekutuan menetapkan garis panduan untuk kerajaan persekutuan dan kerajaan negeri. Parlimen ditugaskan untuk menggubal undang-undang berkaitan dengan ‘persekutuan’ (bajet, pelancongan dan sebagainya), manakala Dewan Undangan Negeri pula menggubal undang-undang ‘negeri’ (tanah, cuti negeri dan sebagainya). Kedua-dua dewan ini ada pemimpinnya, iaitu PM bagi persekutuan dan MB bagi negeri. Mereka juga ada barisan kabinet masing-masing. Terdapat juga isu 'bersama' (utiliti, penjagaan kesihatan, dan sebagainya) yang diputuskan oleh kedua-dua dewan (persekutuan dan negeri). Tapi, Perkara 75 menyatakan jika terdapat percanggahan pendapat, keputusan persekutuan mengatasi negeri. Perlembagaan Rakyat Dalam Perlembagaan Rakyat, kerajaan Persekutuan diberikan lebih kuasa, jika dibandingkan dengan Perlembagaan Persekutuan. Parlimen dalam versi ni akan ada seorang Ahli Parlimen untuk setiap 45,000 warganegara. Tapi kita kena ingat, tahun 1947 tu Tanah Melayu cuma ada 5 juta penduduk saja, berbanding dengan 31 juta penduduk sekarang. Kalau diikutkan versi ni, hari ni kita akan ada lebih 600 orang Ahli Parlimen di Malaysia (dibandingkan dengan 222 kerusi sekarang). Perlembagaan ini tak sebut langsung tentang dewan undangan negeri, jadi mungkin ia mengikut sistem satu parlimen seperti yang ada di Britain, dan tak ada kerajaan negeri. Parlimen akan memilih Perdana Menteri dan ahli kabinetnya, yang dipanggil sebagai Majlis Persekutuan. Sama ada AMCJA atau UMNO, apa yang penting adalah… Kita akhirnya berjaya kecapi kemerdekaan. Apa yang kita kena tahu dan ingat baik-baik adalah, walaupun kedua-dua pihak berbeza pandangan – masing-masing mahu membebaskan negara ini dari penjajah, dan mencari halatuju yang terbaik untuk rakyat. Dan kedua-dua pihak bermula di tempat yang sama, dengan merangka undang-undang asasi untuk negara ini. Dan kami tak bergurau bila kami kata yang undang-undang tu sendiri dah meresap masuk dalam semua aspek kehidupan kita. Sekali lagi, apa yang ditulis ni bukanlah nak kata idea mana yang lebih baik atau tak baik. Tapi ambillah ia sebagai coretan menarik sejarah Malaysia yang tak selalu diperbincangkan. Zaman akan terus berubah, tapi sejarah tak akan berubah dan akan kekal sebagai pedoman dan tauladan."
"Here's how the British created the censorship laws for Malaya that’s still in use today The purpose of censorship laws has always been to protect our society from negative elements in the media, such as deviant sexuality, excessive violence and even misleading religious teachings. But with its focus on TV and films, you’d think that our censorship laws were a recent-ish thing, created mainly based on our traditional Asian values. But surprisingly, these regulations were enacted a long time ago, before we were even called Malaya. And we didn’t even create it. It was actually enacted by the British when we were under their rule. And the reason they did it? The British brought censorship laws to protect… themselves Way before the Brits invaded us, we had our own form of entertainment such as ​​​​​​wayang kulit, mak yong and main puteri. These theatrical performances were based on our local fables and folklore. Naturally, there were never really any regulations placed on them as they were made for our own entertainment and suited our cultural norms. But all that changed when the British invaded Malaya. While they were here, our traditional theatrical performance were not really suitable for the English soldiers that were stationed here. So, they brought over their English theatre to entertain their guards and together with theatre, they also brought over their censorship regulations. Here’s a not-so-fun fun fact for y'all: Britain has one of the most draconian censorship regulations in the world. It is based on values set by the upper class who think that they know what’s best for everyone. And that’s how the Theatre Enactment 1895 was first established. They regulated theatrical performances under specific categories such as content, actor’s moral, show time and safety factors of the building that the performance would be taking place in. When films were first being produced, it was vastly imported in from Hollywood and the Brits weren’t too happy with the themes portrayed. Women were being depicted as mavericks and some films undermined the white man’s social status. To keep up with time, censorship regulations had to evolve to cover both theatre and motion pictures. Movies were censored by letting police watch it At first the censorship role was assigned to the police who were regarded as the moral guardians of our society. As part of their job, they would oversee all theatrical shows. They had the right to enter any public or theatrical performance and stop any show deemed immoral. This was on their own discretion as there were no clear guidelines for them to follow or base their judgements on. With the influx of films, the task of censoring films became way too much for the police to handle. So, an official censor role was created under the Theatre Ordinance 1908 Enactment 1917. The first ever person to be appointed (on a temporary basis) was a British man named F. Neville Piggott. He was followed by two other temporary censors. In 1920, they finally hired an official permanent film censor officer, T. M. Hussey. He was a former soldier who began working in the Straits Settlement Police Headquarters in Singapore as an Official Censor. The task required him to be very familiar with cultural sensitivities of citizens which would help him understand what are the big no-nos when it comes to public viewing. Ironically, he became too intuned with our culture that he started banning British films that were imported in because they were too “Western” for our society. This prompted backlash that he was too Anti British and autocratic. Hussey was possibly one of the most hardworking people out there. He was reportedly assigned to regulate over 4 million feet of films. “ During 1932, this unfortunate gentleman had to sit through no less than 4,577,700 feet of films, and not only had to censor all of this but also every piece of advertising matter which accompanied it – trailers, posters, stills and so forth.” as mentioned by Bradley This man loved his job so much that he refused to retire at 50 and reappealed to continue working. His appeal was accepted and continued working for many more years to come. He worked for a total of 22 years when he was only supposed to hold the position for 3 years. His legacy lives on till today whereby he’s now known as the Father of Film Censorship in Malaysia and Singapore. Yeap! Just like how our past Prime Ministers had Bapa something something, Hussey’s like our very own Bapa of Film Censorship. But things took a turn for the worse when the Japanese invaded us. No one wanted to watch Japanese movies :( As we all know, Malaya was invaded by the Japanese from 1942 to 1945 and it was possibly one of the worst times for Malayans. When war broke out, the blooming local film industry was completely destroyed; they were no longer able to make any films during this period. During the occupation, the Japanese brought their own films into the cinema. However, Malaysians preferred watching Western films. So, the Japanese government banned all foreign films except Japanese ones, hoping the locals would watch their films. But it backfired as not many locals went to watch it. Therefore, the Japanese government decided to allow films from India, especially Hindustan films, to be screened because they were regarded as harmless entertainment. However, Chinese films were still banned due to the war between Japan and China at that time. As the Japanese government controlled the film industry, they set up their own guidelines and regulations. All film distribution and theatres were under the control of the Eiga Haikyusha aka the Japanese Film Distribution Company. They made films to spread Japanese propaganda, and whatever theatres that survived the war were used to screen propaganda or Japanese films only. This effort to make Malayans used to their culture was called Nipponisation. To help with this efforts, there were 2 categories or “genres” of film made by the Japanese; Bunka Eiga Gejiko – a government propaganda body which only showed news and educational films. The films are designed to emphasize the spirit of the Japanese, their patriotism, the excellence of the Japanese Army, Japan’s light and heavy industry, the reputation of Japanese management skills, the speed of reconstruction of their captured territories and build the consensus that Asia that was free from colonialism. Japanese popular films – films that were made to get Malayans accustomed to Japanese culture. They made films showing the superiority of Japanese family life, the harmony in the social system of Japan, the modernity of Japanese civilization without sacrificing traditional Japanese culture, art and music, respect for the elders, and their loyalty to the country and to their Emperor However, soon after that, the Brits won back Malaya and they tried to undo the Japanese propaganda, so they created a general guideline. The areas of concern specified in the guidelines are: Race and religion ( anything that could cause tension in a multicultural society) Sexual scenes ( like nudity in general especially women’s body) Superstition and myths ( spooky magic that could make people invincible) Violence (new methods of killing people) If this sounds familiar to you, it’s because our Lembaga Penapisan Filem Malaysia still uses these regulation till today. During that time, the Brits also opened up the Official censor role to locals. This meant that locals could get involved in learning about film censorship, making it easier for regulations to be adaptive to our culture. It also allowed locals to learn more about film production and media. But after Malaya got their independence from the British, we formed our own official body for film censorship. However it only lasted for about 9 years as the LPF had to be revised again in 1966. LPF was finally established in 1966 In 1965, Singapore left the Malaysian Federation to become an independent country. So with this fresh start, Malaysia had to establish their own censorship board with their own rules and regulations. And that’s how, ladies and gentlemen, the Lembaga Penapisan Filem Malaysia (LPF) was established in 1966. During this phase, the Malaysian National Televisyen System (RTM) was also established here. In the beginning, they only broadcasted local movies and TV shows, but added foreign films soon after. Soon after, when viewership increased, channels like NTV7 and TV3 also established themselves. However, as we evolved towards modern TV, more and more foreign films and shows were imported. This meant that our local channels couldn’t accommodate that influx anymore; the workload increased tremendously. Following this ripple effect, the LPF members began to grow in numbers to keep up with the workload and they became the large establishment that we know today. In 1998, ASTRO, a satellite television provider, began broadcasting in Malaysia. Astro established itself as the dominant pay TV provider up until HyppTV came into the picture. The LPF looked towards Astro for guidance when it came to modernising censorship regulations on TV programmes. As the media and film industry expanded, so did the LPF. By 2012, there were more than 75 members and they were acting directly under the Film Censorship and Enforcement Division under the Ministry of Home Affairs. And the rest, as they say, is CENSORED."
"Is the Malaysia government really stopping people from making Tongkat Ali products? Tongkat Ali has been used for ages as an energy supplement, or more famously as an aphrodisiac, all the way from Malaysia to Cambodia. Traditionally, it was consumed by boiling the roots then drinking the mixture, but now you can get 3-in-1 tea mixtures, canned drinks, or even pill supplements. For the modern versions, whether you prefer Alicafe or Tongkat Ali, if you read the contents, most would mention that it contains ‘Tongkat Ali extracts’. So for something so easily available and used everywhere in the region, it can be surprising to know that the Malaysian government has patented Tongkat Ali extracts. But first, we’ll start with Biotropics Malaysia, a producer of Tongkat Ali products and a subsidiary of Khazanah, and their warning notice for other makers to stop creating their patented product. Biotropics warned other Tongkat Ali makers about their patent On the 31st of July 2019, Biotropics issued a warning notice in The Star’s print edition. In the notice, Biotropics stated that they are the sole licensee of the patent number MY-134867-A. This patent covers bioactive fractions in Tongkat Ali for new scientific uses. The patent is jointly owned by the Malaysian government and the Massachusetts Institute of Technology (MIT) The reason for the warning notice? Some unnamed companies were making Tongkat Ali products that infringed the patent; they didn’t have the license to do it. Biotropics is the sole licensee of the patent, granted to them by the Malaysian government through the Ministry of Energy, Science, Technology, Environment, and Climate Change (MESTECC). They warned the other companies to stop, or they will sue. Under Section 36 (1) and (2) in The Patent Act 1983: (1) ...the owner of a patent shall have the following exclusive rights in relation to the patent: (a) to exploit the patented invention; (b) to assign or transmit the patent; (c) to conclude licence contacts. (2) No person shall do any of the acts referred to in subsection (1) without the consent of the owner of the patent. Only the patent owner and the licensee can ‘exploit’ the patent, as well as the process to create it. Under Section 36 (3) (a) and (b): (3) ...“exploitation” of a patented invention means any of the following acts...: (a) when the patent has been granted...: (i) making, importing, offering for sale, selling or using the product; (ii) stocking such product for...offering for sale, selling or using; (b) when the patent has been granted in respect of a process: 36 (i) using the process; (ii) doing any of the acts...in paragraph (a), in respect of a product obtained directly by means of the process. As the sole licensee, only Biotropics can create, sell, and stock their shops with the patented product. Additionally, they warned other makers that if they falsely claim that they too have a patent on their commercial product, they are committing a crime. Under Section 64 (1) of The Patent Act: (1) Any person who falsely represents that anything disposed of by him for value is a patented product or process commits an offence and...is liable on conviction to a fine not exceeding fifteen thousand ringgit or to imprisonment for a term not exceeding two years or to both. Is this true? Does the Malaysian government, and only their licensee, Biotropics have the right to create and sell Tongkat Ali products? By patenting the process and the contents, would that technically mean you’ve patented the plant? First things first, let’s be clear: Malaysia didn’t actually patent ‘Tongkat Ali’ They did not patent the plant. Under the Patent Act 1983, Section 13 (1) (b): “13. ...the following shall not be patentable…(b) plants or animal varieties or...biological processes for the production of plants and animals…” You can’t just patent anything you want. We asked a lawyer, Dinesh Sadhwani, on this Tongkat Ali matter. “...as you may see from Section 13 of the Patents Act, certain things cannot be patented. Also, don't forget that, in order to obtain a patent, the idea must satisfy certain criteria especially the novelty test. These would be some of the safeguards or hurdles the law has in place for a patent applicant ⁠— Dinesh Sadhwani in a reply through email. Under Section 14 (1) and (2) (a) in The Patent Act on Novelty: (1) An invention is new if it is not anticipated by prior art. (2) Prior art shall consist of – (a) everything disclosed to the public, anywhere in the world, by written publication, by oral disclosure, by use or in any other way, prior to the priority date of the patent application claiming the invention; They haven’t patented the traditional way of processing or using Tongkat Ali, as that isn’t a novelty. You can cook it, steam it, boil it, broil it, bake it, saute it, turn it into a cream or even a pill. You can even claim that your product makes husbands last in bed for 3 days straight, all day, all night, call your doctor so he can take a picture of it! (This is a joke, don’t do it. You can’t make claims if you can’t back it up) None of that is infringing the patent. But didn’t they patent the extracts? Wouldn’t that mean we can’t make any Tongkat Ali product, as they contain the patented extracts? To understand it, we need to think smaller. Microscopic, even. But first, we need to know what the claim is on. What exactly did the Malaysian government patent? Biotropics clarified their patent after getting backlash on their previous notice. ""While the patent does involve Tongkat Ali, the...Patent was granted...to new scientific uses relating to Tongkat Ali and is not for Tongkat Ali itself...the patent does not cover any traditional knowledge nor does it cover traditionally known claims...such as tonic , energy, sexual performance or blood circulation either in supplements, food and beverage forms found in stores. — Biotropics statement, Malaysiakini. From the patent itself, you can read their claims on the last 2 pages. They basically claimed three things: The content: Selected fraction from the composition, which increases testosterone creation, testosterone release, sperm count and sperm motility The method: A method for isolating a bioactive component from an aqueous extract of Eurycoma longifolia, comprising preparing an aqueous extract of Eurycoma longifolia, and isolating the bioactive component by a chromatographic method The new usage: The use of the composition...in the manufacture of a medicament for treating sexual dysfunction or male infertility by any of increasing testosterone synthesis, increasing testosterone release from cells, increasing sperm count, or increasing sperm motility. Unless you’re a chemist, this might sound really confusing. The terminology and processes can be hard to understand, and not readily available in one place. So we turned to a source where specific experts gather—Reddit. Thanks /u/cedar_goose for the chemistry lesson! Disclaimer: This is a simplified version so there might be a small margin of error; but you can get a general idea of how it works. If you're planning to make your own Tongkat Ali extract, do not read this. First, they prepared an “aqueous extract” of Tongkat Ali. This just means that water was used to remove the desired chemical compound from the plant. It’s like putting tea leaves in a cup of water; after awhile, the tea compounds dissolves in the cup. Because the compounds dissolves in water, it’s called an “aqueous extract”. Next, the aqueous extract will be separated into different compounds using a technique called column chromatography. This technique is used to separate a sample that contains many different compounds. It consists of column which contains fine powders of silica, and you put your sample in the column (with solvent) and let it pass through the silica and come out via a tap at the bottom of the column. Through this process, ""fractions"" are collected—this is when a few mL of the liquid is collected in separate vials or tubes, and you keep collecting it in new vials over and over again. The sample will come out of the column and be collected at different times, which is how you purify your desired product. For example, the first 10 fractions collected might not have anything, the following 3 might have an undesired compound (which you will discard), the following 5 might have your desired product (which you combine together and keep), and the last 8 might contain nothing. They discovered that the fractions they collected are bioactive. Bioactive means that when consumed, the fraction causes biological activity inside the body. They tested the extract on rats, and they found that it increases testosterone synthesis, testosterone release from cells, sperm count, and sperm motility. So what Malaysia have patented is: The bioactive components; the method of isolating the bioactive components; and its new scientific use: to treat sexual dysfunction or male infertility by increasing testosterone release and sperm count. This is why Biotropics said their patent is for new scientific uses. Under Section 14 of The Patent Act, their invention is considered new if it hasn’t been used in such a way before. They did not claim it had the traditional uses mentioned before. Theirs is a new product with new uses. In short: it’s a novelty. Which means that… Traditional makers are safe, but Biotropics need to prove their claim on other makers The problem would lie with more modern manufacturers, especially ones that may use similar methods, or claim that their products increases testosterone and sperm count. But it’s not as simple as them just saying someone infringed their patent and they’ll immediately win their case. Biotropics still needs to prove that other Tongkat Ali producers have infringed their patent. Under Section 60 (1) of the Patent Act 1983: (1) If the owner of the patent proves that an infringement has been committed or is being committed, the Court shall award damages and shall grant an injunction to prevent further infringement... So product makers found guilty will have to pay up and shut up shop. But the burden of proof is always on the claimant. Because if they can’t, then the claim has no tongkat to stand on."
"If your bank closes down in Malaysia, what happens to your money? The concept of money has evolved throughout the past 40,000 years, from pretty shells and precious minerals in the Bronze Age to the digital numbers that you see in your banking app when payday arrives. But keeping very closely behind the evolution of money is another form of evolution – how to keep your money safe. It really wasn’t that long ago when the highest form of security for your cash was to literally sleep on it or hide it in a freezer (cold hard cash, amirite?), and this eventually moved to the idea of keeping it in banks or investments. But the thing is, this isn’t 100% safe either as investments can be lost and banks can also become bankrupt if the economy tanks or when customers panic and withdraw their deposits en-masse (called a bank run). So just like how you’d get an insurance policy in case something bad happens to you, this is where the concept of an ‘insurance policy’ for your bank account comes in. If you have a bank account, listen to the radio, or read some of our previous articles; there’s a pretty high chance you would have come across PIDM or Perbadanan Insurans Deposit Malaysia. From reading the comments on our previous articles, we sort of got the idea that while most people know what PIDM is, they aren’t exactly sure of how the coverage actually works. So we thought it would be interesting to compile these comments and get an answer for them… straight from PIDM. The easy part: What does PIDM actually do? In case you haven’t been paying attention to the ads, here’s a quick introduction to get you up to speed. PIDM is an agency formed under the Malaysia Deposit Insurance Corporation Act 2011 (MDIC Act 2011) to promote the stability of the financial system in Malaysia by insuring your bank deposits and insurance policies/Takaful certificates in the event a PIDM member bank or insurer goes bankrupt. These two forms of coverage are known as: DIS (Deposit Insurance System) – Coverage for your bank deposits, if your bank is unable to return that money to you. Protection is limited to RM250,000 per depositor, per member bank. TIPS (Takaful and Insurance Benefits Protection System) – Coverage for your Takaful certificates and insurance benefits, if the Takaful operator or insurance company is unable to honor the benefits covered under your insurance policy or Takaful certificate. Protection is up to RM500,000 or more depending on the type of benefits, so click here for the full list of benefits protected by PIDM. Oh, and this coverage is free and automatically provided by PIDM! So, that’s the easy part. For the more advanced stuff, we’ll be focusing on the bank deposit (DIS) questions to keep things less confusing. Let’s start with the most common question we see in the comments…. 1. My bank told me they’re not insured…? As of today, PIDM covers 92 member institutions – 42 member banks and 50 insurer members – meaning that most, but not all, banks are members. Member banks are all commercial and Islamic banks defined under Section 36 of the Malaysia Deposit Insurance Corporation Act 2011 as follows: “...licensed under the Banking and Financial Institutions Act 1989 [Act 372], the Islamic Banking Act 1983 [Act 276], the Financial Services Act 2013 or the Islamic Financial Services Act 2013 after the commencement of this Act, shall be deemed to be a member institution from the date it is granted the licence.” … and are automatically required to be members of PIDM, regardless of whether it’s a local bank or a foreign bank operating in Malaysia. PIDM provides a list of member banks here, so to answer the question in the screenshot above; Bank Muamalat is a PIDM member while Bank Rakyat is not because – FUN FACT – Bank Rakyat is a development financial institution regulated under a different Act called the Development Financial Institutions Act 2002. If you want to know whether your bank is a member ban of PIDM, the easiest way is to refer to the member bank list linked above, or you can look out for the PIDM sticker placed at the entrance of their branches. Pro tip – you can also ask your bank! 2. I have RM300k. Does this mean I need to open TWO bank accounts? To the person with RM100 billion in their account – can we be your friend? We’re assuming that the question is a hypothetical one but, jokes aside, yes – you can split your money across different accounts and/or banks to maximize your coverage. PIDM explains that there are three ways to do this… 1. Open accounts in different banks “PIDM's protection is applied separately per depositor per member bank. If you have RM250,000 with Bank A and RM250,000 with Bank B, the amount protected is RM500,000 if both Bank A and B become bankrupt.” – PIDM Yup, if you have RM1 million, you could open deposit accounts in four banks to fully protect the amount. However, do take note that this applies to separate banks and not bank branches. Currently, 42 commercial and Islamic banks are member banks of PIDM (full list here) 2. Open different types of accounts within the same bank “To receive separate protection, you can open different types of deposit accounts within one bank. For example, apart from an individual savings account, you can also open joint-name accounts, [and others]” If you aren’t too keen on the idea of having 4 different banking apps on your phone to manage your massive moolah, you can actually open different types of accounts within the same bank. For example, your million Ringgit can be split into: an individual account (in your own name), a joint account with your spouse, a trust account for your son, and a trust account for your daughter … within the same bank to be fully protected. Click here to check out the different categories of deposit accounts. 3. Open a conventional and an Islamic banking account within the same bank “You can also opt to open both a conventional and an Islamic account with your bank to enjoy separate protection from PIDM.” Just to clarify, if you have RM250k in a regular savings account and RM250k in a Islamic savings account within the same bank, you’re also covered for a total of RM500k. Click this link for examples of how the coverage will work. 3. Will I be charged by PIDM every time I deposit money or take a loan? So, PIDM reiterated to us that their mandate is to protect deposits, not loans. It’s a frequent point of confusion because accepting deposits and providing loans are a bank’s main business. “Let’s take a moment to think about the mechanics of a loan – if a bank goes bankrupt, the bank does not “owe” you any money so there’s no such thing as “protection” here. But if you have a bank deposit account, you would want to be assured that you can get back your money if the bank goes bankrupt, so this is where PIDM comes in.” While comparing PIDM protection to insurance is a good way to get the understanding across, it’s not entirely the most accurate. This is because, while you need to sign up for a policy and pay premiums to an insurance company for protection, PIDM’s coverage is free and automatic. “The protection is automatic and free – no sign-ups or fees required. We will also not ask for your personal and/or financial details.” In other words, if you ever receive a call or message asking you to verify your personal details or pay a fee to PIDM, you can confidently tell the caller where to deposit their lies (hint: it’s a place where the sun don’t shine) because it’s definitely a scam. Similarly, if someone tells you that you need to make a payment to PIDM to protect your bank deposits, loan, or investment; that’s a scam as well. [READ MORE: Asked to pay for PIDM protection? That’s a scam!] The money that PIDM will use to pay you actually comes from the member institutions themselves. Basically member banks and insurer members pay annual premiums/levies to PIDM, which then goes into funds that will be used to make payments to you when needed. On that note... 4. Will PIDM protect my Amanah Saham, or against robberies/cyberattacks? The quick answer to this is no, as PIDM only protects your money if a member bank goes bankrupt. So it’s mainly for deposits saved with its member banks and does not cover investments. In cases of fraud, scams, natural disasters, fire, robbery, or a cyber-attack on your bank, the payment will come from the bank itself, and is dealt with on a case-by-case basis. As a reference though, here’s a list of products that fall under PIDM’s protection (again, under the conditions that a bank goes bankrupt and within the RM250k per depositor limit) Savings accounts Current accounts Fixed deposits Islamic deposit accounts (e.g. wadiah deposit) Bank drafts, cheques, and any other payment instructions/instruments made against a deposit account You will enjoy PIDM’s protection for these products whether they’re denominated in Ringgit or foreign currencies. And, here’s what’s NOT protected: Deposits not payable in Malaysia Interbank money market placements Negotiable instruments of deposit and other bearer deposits Repurchase agreements Unit trusts (such as Amanah Saham), stocks, and shares Gold-related investment products/accounts and Islamic Investment accounts To be on the safer side, you can always check with your bank to see if PIDM protects your deposit. According to PIDM, a member bank must inform you whether or not your deposit is eligible for the deposit insurance protection before you place your money with them. Member banks would also have a list of deposit products that are eligible for deposit insurance protection displayed in their premises or websites. 5. Wait… how will PIDM return my money? Cheque ah? This question was actually asked by one of our interns after we published our first article on PIDM, and we… had no idea. As it turns out, there is little action that needs to be taken from the customer’s side – you don’t need to apply, make a report, or open a new bank account somewhere else. “You do not need to make a claim. PIDM will announce how and when reimbursement of insured deposits will be made. PIDM will base its reimbursement on the depositor records obtained from the member bank. It is important to keep your record updated at your bank” PIDM will make payments on insured deposits to customers if a winding up (going out of business) order has been made in respect of a member bank. They will reimburse the insured deposits as soon as possible, and no longer than three months from the date of the winding up order. In such a scenario, PIDM will make public announcements to notify depositors on how and when the payment of insured deposits will be made. They will also make communications channels – including its call centres and website – available for you to find out the status of you insured deposits. Bonus: Why does PIDM even need to advertise themselves? This question popped up way too often for us to leave out, and the response is: “Firefighters are called to protect the public in emergency situations. These days, firefighters have expanded their role to be more involved with the community. They raise awareness, conduct fire safety checks and communicate fire prevention and other safety messages to the public. PIDM’s role is very much similar to that of the firefighters’ but within the context of the financial system.” Other than the protection it offers, PIDM is pretty big on educating the public in financial literacy. Their Facebook Page is a channel for you to ask your burning questions on PIDM protection. They’re always open to more questions, so let us know if you have any more (don’t forget, they cover Takaful and insurance benefits as well) and we might do a part 2. Otherwise, you can always call their toll-free line at 1-800-88-1266 or visit their website linked here."
"How Genting fought Fox and Disney to build their theme park When Genting closed down it’s famous outdoor theme park back in September 2013, it was greeted with excitement. Not because we hated Genting; it was because the theme park would be replaced with the first ever Fox-branded theme park in the world (how exciting!). It was initially expected to be opened to the public three years later, in 2016. However, if you’ve been to Genting in the recent years or heard from the news, you might have realised that the theme park’s opening has consistently been delayed since 2016. It’s now 2019, and the theme park is still under construction. So, what is delaying us from going on the Alien vs Predator rides? Currency issues and Fox felt buyer’s remorse When 20th Century Fox and Genting Malaysia entered into an agreement in 2013, things seemed pretty straightforward. Genting will have the rights to use Fox’s blockbuster titles for their rides and attractions. This meant that we could’ve seen rides based on ‘Ice Age’, ‘Planet of the Apes’, and ‘Life of Pi’. In exchange of this, Fox will be paid an annual license fee and royalties. But the first delay was due to financial reasons. The theme park’s original 2016 opening was postponed to 2017, as Ringgit Malaysia was too weak to proceed. Genting’s original investment was US$300 million, but due to Malaysia’s currency getting weaker, Genting would need to add an extra US$61 million to their original investment. But then, Fox had that feeling of regret after negotiation, when they realise they could’ve asked for more. In short, Fox had seller’s remorse. Fox regretted two things: One, that the deal did not include a share of the gate sales. Two, they felt the deal was below market value. They even thought about cancelling the agreement. James Murdoch, Fox’s CEO, commented to others in the company that he wanted to invest in a Fox-owned theme park, rather than licensing their IP to Genting. But Fox could not cancel the agreement. In their Memorandum of Agreement, the only way that Fox could cancel the deal is if Genting missed the key deadlines. So, to force a renegotiation, Fox started to do a few delay tactics. They did this so Genting would miss their deadlines, and they could relook at the Memorandum of Agreement. Genting claimed that the delays weren’t their fault. They claimed to have “worked feverishly to bring the theme park to life ASAP”, but Fox fought Genting at almost every turn to delay the project. Some of the things Genting claimed Fox did was: Fox insisted that Genting replace one of its preferred vendors to one of Fox’s less qualified vendor Fox asked Genting to change an ‘Independence Day’ themed ride to ‘Percy Jackson’. After it was completed, Fox asked Genting to change it back to ‘Independence Day’, which Genting did, from scratch. Fox constantly made vague comments without providing precise direction All of Fox’s requests costed Genting a lot of time, and consequently, the opening was delayed. But things were further complicated when… Disney buys Fox, doesn’t want the theme park near a casino As all this was happening, Walt Disney was in the process of acquiring Fox. With Disney coming into the picture, their objective was no longer renegotiation of contract, but to terminate and back out from the licensing deal completely. As many know, Disney have always kept a “family-friendly” brand strategy, and they have been lobbying against the opening of gaming facilities near Disney parks. So, the opening of the Fox theme park next to Genting’s casinos would go against their branding. And if the theme park was completed, it would also compete with Disney’s existing theme parks in Asia. Fox then issued a default notice, basically saying that Genting have missed their deadlines, in hopes of terminating the contract. Genting felt that this was ""entirely consistent with Disney wanting to kill the deal"". However, Genting held that Disney and Fox had no valid ground to pull out from the agreement, and had already invested RM3.1 billion into the Fox theme park. So in November 2018, Genting filed a RM4.2 billion lawsuit against Disney and Fox for breach and interference of contract. They intend to fully enforce their rights under the agreement, and to claim for the cost of investment into the theme park. Genting’s lawsuit with Disney and Fox For simple narrative purposes, we decided to do a highly dramatic, blow-by-blow reenactment of Genting VS Fox & Disney’s arguments, if it was a wrestling match. Fight! Genting argument, jab punches: According to the Memorandum of Agreement, Genting can terminate for any reason, if they pay a termination fee. Fox can only terminate based on specific circumstances, especially missing key deadlines. Fox argument, uppercut: Genting has missed deadlines, especially their failure to “soft open” the park by June 2018. This gave them the rights to terminate the contract. Genting dodge and counter-attack: The “soft open” deadline was impossible to meet, as they had to open it within 30 days from the notice. This is impossible given the delays caused by Fox, and the months of stress testing and safety checks required before they could soft open. Genting gets the mic and talks on the top ropes: Genting denies that Fox had grounds to terminate the agreement, and that Fox is responsible and should share any damages caused by the termination. Genting jumps down and body slams: Genting sues Fox for breach of contract, and breach of the implied covenant of good faith and fair dealing, among others. In other words, Fox and Disney intentionally caused the delay, hoping that they could renegotiate or cancel the agreement with Genting. Fox gets back up, picks up a metal chair, crowd goes wild: Walt Disney and Twenty First Century Fox asserts that the lawsuit was “entirely without merit” rejected the claim. They argued that the blame is on Genting and Genting alone, as they have failed to meet the agreed-on deadlines and quality standards set forth in the agreement time after time. Fox and Disney hit Genting with the chair: Fox and Disney filed a counter claim against Genting for breaching the contract in the first place. Now that they’re suing and countersuing each other, will things get better? Yes. Genting and Disney settled out of court Despite all that, Genting didn’t want the theme park go to waste, especially after investing RM1 billion into it. Win or lose, they planned to go ahead with an unbranded theme park, and to open it once it’s completed. We’re not sure how that would’ve worked, especially since the rides are based on Fox’s IP. But it would be interesting to go on rides that tried to avoid copyright issues, such as ‘Cold Era’ or ‘Bercy Jackson’. After the back and forth between Genting and Disney, there was a period of silence, as both parties tried to settle this outside of the court. A statement published on 25th July 2019 took the world by surprise, as Genting Malaysia announced that they have settled all disputes against each other outside of court. Both parties agreed to dismiss all claims and counterclaims in their pending legal action. As part of the settlement, the parties have reconciled and enter into a new agreement. Under this new agreement, Genting is allowed to use both Fox and non-Fox intellectual properties. Genting also agreed to get a new name for the theme park, instead of using the original “20th Century Fox World”. So all parties got what they wanted: Genting got their theme park, Disney gets to protect its family-friendly brand strategy. And we, the theme park goers, finally get to go on the new rides. Win-win-win. But hold your horses for a little bit longer, as Genting’s theme park is expected to launch sometime in 2016 2019 2020 (FINALLY!)."
"Malaysian travelers - How do you entertain yourself at the airport? Tell us in our survey! [Click here to take the Kaki Terbang Survey 2019!] When you think of airports, you think of it as a place that you have to go to if you’re flying somewhere. But airports also serve a different function as a ‘front door’ – it’s a tourists’ first impression of a country (as well as their last, when they leave) and a sign of home for returning citizens. So in this sense, your experience at an airport can pretty much set your mood – whether positively or negatively – before you even get to the hotel! But because so many people from so many cultures and backgrounds end up congregating at airports, it can cause us to develop some pretty strange behaviors that you’d probably not see anywhere else; such as preferring to rush out of a plane to be the first to use the toilets versus holding everything in and hoping to find an emptier toilet down the line. Airport operators can sometimes use this information to improve traveller experience, which leads us to… Our first ever survey on airport behaviors and preferences! Together with our site siblings Cilisos and Soscili, we’re running our first ever Kaki Terbang Survey 2019 – which is basically an airport behavior survey but with a much catchier name – with our travel buddies, Malaysia Airports. Just to clarify, Malaysia Airports isn’t the same as Malaysia Airlines, which is the company that operates the planes. Malaysia Airports is the company that’s in charge of operating, managing, maintaining, and developing 39 airports around Malaysia, including the KL International Airport which includes the KLIA main terminal and KLIA 2. Yup, KLIA 2 is actually a terminal and not a separate airport #TIL As Malaysia Airports is one of the largest airport operator groups in the world in terms of number of passengers handled, it comes to no surprise that their strengths lie in keeping large volumes of people happy – which is why we’re curious to know stuff like: What pet peeves you have to endure at airports Whether you’ve done anything naughty (but not illegal) while waiting for your flight If you have a particular toilet strategy before you take off or when you get off the plane ….and more! So take our Kaki Terbang Survey now, and we’ll let you know how similar or different you are from the average Malaysian. Survey closes September 1 2019! Click here to take the Kaki Terbang Survey 2019"
"Kes yang buatkan pintu berpalang sah di sisi undang-undang [Click here for English version] Sejak kebelakangan ini, kejadian pecah masuk dan kecurian dah mencatatkan peningkatan dari tahun ke tahun. Mungkin disebabkan hal ini, permintaan terhadap hartanah dalam komuniti berpagar (GACOS) semakin meningkat. Kalau sesuatu kawasan perumahan tak ada fasiliti seperti itu, selalunya para penduduk akan bentuk skim keselamatan sendiri. Ini termasuklah memagar kawasan, meletakkan pintu berpalang (boom gate) dan upah pengawal keselamatan di pintu masuk utama. Tindakan macam ni nampaknya berikan kesan yang efektif, di mana kejiranan yang mempunyai pintu berpalang mencatatkan penurunan kadar jenayah ketara dalam tempoh dua tahun. Tapi, walaupun pintu berpalang ni struktur biasa di kawasan perumahan, ada komuniti ni terkejut bila dapat tahu yang peraturan pasal pintu berpalang ni rupa-rupanya masih samar. Kejiranan yang alami situasi itu adalah… Hal ni dialami oleh beberapa kejiranan di sekitar Petaling Jaya. Pada Ogos 2013, Persatuan Penduduk (RA) ada dapat arahan daripada Majlis Bandaraya Petaling Jaya (MBPJ) yang minta mereka robohkan pondok pengawal dan pintu berpalang di kawasan masing-masing. Rupa-rupanya, daripada 181 RA, hanya 18 yang buat permohonan untuk bina pondok pengawal. Manakala, yang lain tu semuanya tak dapat kebenaran dari MBPJ atau dengan kata lain – tak sah. Tapi, demi nak jaga keselamatan masing-masing, RA tetap biarkan pintu berpalang berfungsi. MBPJ sebenarnya cuba berkompromi dengan RA bukan strata pasal isu ni, dengan minta mereka buka pintu berpalang tu pada hari siang supaya jalan awam boleh diakses. Ini kerana, di bawah Seksyen 46(1) Akta Jalan, Parit dan Bangunan 1974, sesiapapun tak dibenarkan meletakkan halangan, tanpa kebenaran daripada pihak berkuasa. Dan di bawah akta sama, pihak polis boleh secara fizikal mengalihkan halangan itu. [BACA LAGI: Strata title vs individual title - how does it affect Malaysian landowners?] Seperti mana yang kita boleh nampak, kedudukan undang-undang pintu berpalang ni agak payah sikit. Walaupun mereka dapat kebenaran untuk menggunakannya, mereka terpaksa bukanya masa siang. Malah, ada juga pintu berpalang yang dirobohkan pihak berkuasa. Pada Oktober 2013, penduduk tiga kawasan di PJ dah dikejutkan dengan kedatangan pihak MBPJ, yang datang untuk merobohkan pintu berpalang dan halangan di kawasan mereka. Disebabkan hal ini, penduduk lepas tu dalam keadaan berhati-hati masa nak buat sebarang langkah keselamatan, seperti mana yang ditetapkan oleh MBPJ. Seperti yang dikatakan oleh seorang Presiden Persatuan Penduduk: ""Persatuan Penduduk (RA) sentiasa bimbang tentang akibat undang-undang memasang pintu berpalang untuk tujuan keselamatan di banyak tempat,” kata Presiden Persatuan Penduduk Taman Seputeh, Dr Balaeswaran Poobalasingam. Dipetik dari Rakyat Post. Tapi sejak Au Kean Hoe failkan tuntutan mahkamah supaya dirobohkan pintu berpalang di kawasan perumahannya, mahkamah dah buat keputusan yang tak lagi samar. Ini kenapa pintu berpalang boleh jadi sah di sisi undang-undang Kisahnya begini, bila Au Kean Hoe berpindah ke D' Villa Equestrian, di sana memang dah ada dua pintu berpalang dan pondok pengawal yang beroperasi. Para penduduk pun dah setuju sebulat suara – sesiapa yang tak bayar yuran bulanan keselamatan dan penyelenggaraan kena buka pintu berpalang tu sendiri tanpa dibantu oleh pengawal keselamatan yang bertugas. Lepas dengar pasal tu, Au okay je dan bayar seperti mana yang dikatakan. Dia juga dipilih sebagai sebahagian dari Persatuan Penduduk (RA) dan dalam masa sama jadi bendahari. Semuanya berjalan lancar, sampailah dia terpengaruh dengan komuniti dan akhirnya dia berhenti dari bayar yuran keselamatan sebab anggap pintu berpalang sebagai kacau ganggu dan halangan di sisi undang-undang. Tapi, hal ni dah buatkan dia jadi ganjil sebab dia seorang je yang tak bayar yuran keselamatan dan penyelenggaraan. Jadinya, dia kena buat semuanya sendiri (macam buka pintu berpalang) bila nak masuk kawasan perumahan. Dia kena buat benda tu setiap hari, termasuk bila saudara-maranya datang, dan ini dah buatkan dia rasa sakit hati. Satu hari, dia buat keputusan untuk lalu je pintu berpalang tu sampai ia bengkok. Jadi, dia bolehlah masuk tanpa susah-susah keluar dari kereta dan buka pintu berpalang. Dia lepas tu tak boleh sabar lagi, dan saman Persatuan Penduduk supaya pondok pengawal dan pintu berpalang tu dirobohkan. Persatuan Penduduk lepas tu lawan balik dengan dakwa Au berhutang ganti rugi sebab pintu berpalang bengkok, yuran keselamatan tertunggak dan minta dia berhenti dari ganggu RA dan pengawal keselamatan bila lalu depan pondok pengawal. Seorang yang kalah, semua RA untung Keputusannya, Mahkamah Tinggi tolak tuntutan Au, dengan membenarkan tuntutan RA menuntut ganti rugi kerosakan pintu berpalang dan memerintahkannya supaya tak ganggu ahli RA dan pengawal keselamatan. Au tak puas hati dengan keputusan ni, dan buat rayuan di Mahkamah Rayuan. Tapi tak jalan juga, sebab Mahkamah Rayuan mengekalkan keputusan Mahkamah Tinggi. Au masih rasa tak puas hati. Dia pun bawa kes ni ke Mahkamah Persekutuan. Persoalan undang-undang yang dibawanya adalah pondok pengawal dan pintu berpalang dianggap sebagai halangan di bawah Seksyen 46(1) Akta Jalan, Parit dan Bangunan 1974. Bagaimanapun, lima panel hakim memutuskan pintu berpalang di kawasan perumahan tak dianggap sebagai halangan di sisi undang-undang kerana dia sendiri tak pernah dinafikan akses sama sekali. Tentang aduan Au yang kata dia tak selesa sebab terpaksa angkat pintu berpalang tu sendiri. Ia hanya dianggap sebagai aduan tentang kesulitan dan bukannya halangan. Saman Au terhadap Persatuan Penduduk (RA) D’ Villa Equestrian pun akhirnya ditolak sama sekali oleh Mahkamah Persekutuan dan nampaknya Au tak dapat capai matlamatnya. Bagaimanapun, kes ni dah menetapkan peraturan tentang pagar berpalang yang sekarang ni sah dan selaras dengan Akta Jalan, Parit dan Bangunan 1974, Akta Perancangan Bandar dan Desa 1976, dan Akta Kerajaan Tempatan 1976. Masih ada keperluan untuk berunding dengan MBPJ pasal peraturan-peraturan sedia ada, tapi apa yang pasti dah diputuskan bahawa: pintu berpalang kini sah di sisi undang-undang."
"5 ways our Malaysian childhood snacks can be illegal now Remember those days back in primary school? After the bell rings, you’re released from school, finally, and flock to the pakcik lori outside. You’ll look at his collection of candy, and pick out your favourite. Everyone had their favourite. Some liked the candy that coloured your tongue purple or blue or green. Some enjoyed the cigarette candy, because pretending to smoke makes you feel oh so adult. Or, if you like variety, just go to the uncle who could make you a drink, any drink you want, just pick from the hundreds of syrup he had (okay it was more like ten, but it felt like a hundred back then). But now that you’re older and a bit responsible, you might think: Did I really put all that in my mouth? I mean, it was yum, but judging from the taste and weird colours it had, wouldn’t it be full of chemicals we shouldn’t consume? You’re right on the chemicals. In fact, one of your childhood candy (find out which one below) was banned back in 2008 for containing melamine. But having dangerous chemicals that sound like a floor cleaner is just one from our list. Read on below on the 5 ways your favourite childhood candy can be banned. 1.They can ban it for looking like cigarettes The Ghost Smokes candy doesn’t just look like a cigarette—it can even be ‘smoked’ like one. There was a viral video going around showing school kids in uniform doing just that. This similarity with real cigarettes is why the candy has been banned. Despite not containing any forbidden ingredients, the Deputy Health Minister, Dr Lee Boon Chye, stood firm on the Ministry’s decision to ban the product. According to him, the product mimics smoking and could encourage children to take up the habit in the future. This decision is in line with the purpose of the Food Act 1983. Under Section 34: “The Ministry may make regulations for the better carrying into effect the purposes and provisions of this Act, and in particular and without prejudice to the generality of the foregoing, for all or any of the following matters: (r) to prohibit or regulate the sale, advertisement or importation or exportation of any food” So, even though there is no mention of candy looking like cigarettes specifically, the ban was implemented to carry the law’s purpose, which is to protect the public against health hazards. 2. It’s illegal to have toys inside Remember Tora? The one with the small blue box and the ciplak Doraemon. If you were lucky, your parents would let you buy this. If you weren’t lucky, you would sneak out and buy it from the rotiman. Tora is special, not because of the chocolate inside, which is just okay only. But we all know why you bought it: there’s a toy inside! How cool is that?? Candy AND a toy?! Take my money! It didn’t even matter that the toy was cheap; there was a thrill in finding a new toy in every box. But having a toy in your food can be illegal. Technically. Under Section 36 of The Food Regulations 1985, it is illegal to put things in food such as toys or coins. “36. Toys, coins, etc. not to be placed in food (1) There shall not be placed in food for sale or in packages of food, any toy, coin or other article.” Shouldn’t Tora be illegal then? You’re pretty sure you bought a box, or ten. But just to be clear, what we mean is a toy directly inside your food. So, if you have to bite through your chocolate to get to your toy, it is illegal. Luckily, our favourite candy with bonus toys, such as Kinder Joys, Ding Dang, and Tora, are still being sold in Malaysia, as the toy is not actually place inside the candy, but in a different package separate from the chocolate. One candy that violates this law is the Kinder Surprise Egg. The toy is placed in a capsule within the Kinder chocolate egg. Despite being in another container, technically it is placed inside the food. So, not surprisingly, the Kinder Surprise is banned in Malaysia. But when the day comes where we reduce plastic packaging, and putting the toy in the chocolate is the latest cost saving measure, it will be ILLEGAL. But until then, Tora will datang lagi. 3.There are banned substances in it In 2008, the White Rabbit candy from China, was banned in Malaysia. I’m sure everyone remembers the candy, and back then we even ate the clear plastic-ish thing covering it (don’t worry mum, it’s edible!). So was it banned because of the clear plastic-ish thing, and my mum was right not to eat it? Surprisingly, no. The ban was because of a food additive inside of the candy called melamine. There was a health scare in 2008, when milk from 22 dairy companies in China contained dangerously toxic levels of melamine. In high doses, melamine can cause kidney stones and kidney failure. The White Rabbit candy was confiscated as it contained melamine, which was 50 times the permitted level. Under Section 38 of The Food Regulations 1985 if a food is found to have more than the permitted level, the authorities have the power to confiscate the food. “38. (2) No person shall import, prepare or advertise for sale or sell the food additive...in a proportion greater than the maximum permitted proportion specified…” The candy was eventually allowed back onto the shelves, as White Rabbit now only uses imported milk powder from New Zealand to reassure consumers. 4. The label is misleading Do you notice that all the candy have really catchy names and colourful designs, but really average descriptions? Let’s look at Choki-choki for instance Look at how big the label and logo is. But look carefully. See the description of its contents? It’s just written as “Chocolate paste”. Why is the description so bland? When it comes to labelling the products, there are certain words which they could not use, as it may mislead people on the contents. According to Section 18 of The Food Regulations 1985, one of the restricted word is ‘pure’. “18.(2) No label which describes any food shall include the word ""pure"" or any other words of the same significance...” The Health Ministry also added an Amendment in Regulation 388, to expand the list of words that cannot be used. This includes word such as “Gold”, “A+”, “Plus”, “Premium”, “Platinum”, “Pro”, “Advance”, “Super”, “Complete”, “Balance”, “Unique” and “Protect”. Basically they restricted any marketing weasel words. So, for example, Choki-choki can only be sold as the boring “chocolate paste”. But if they decided to call it “Pure Gold A+ Chocolate Paste”, it can be banned. Which would explain why without the nice designs, we are literally just buying “Chocolate paste” in a tube. But as a kid, even if you can’t eat ‘pure chocolate’, the candy will still give you pure joy. 5. It’s too unhealthy for the canteen Back then, our old school makcik canteen probably didn’t care too much about what is healthy or unhealthy. As long as it sells, they’re fine with it. But with the rise of obesity and increasing health awareness in school, our favourite candies might be removed from the canteen shelves. In fact, the Education Ministry has already set guidelines on foods to be banned under the Healthy School Canteen Management Guide. Under this guideline, our candy is technically not allowed in canteens. The list includes sweets and candies; and foods with toys, which are basically the summary of our childhood. But despite the guideline, there are still issues in implementing it, as it’s still available in bookshops and koperasi’s in schools. “I have visited many schools in Kuala Lumpur and saw the school koperasi (cooperative) and book shops still selling junk food,” - William Huee, President, Association of School Canteen Operators, in a statement to The Star. Despite our parents warning us we’ll lose our teeth eating it, we eat it anyway, because who doesn’t like sweets? But if the guidelines on junk food in school is fully implemented, our children might have a future without these iconic snacks. If that happens, all we will have to tell them is just a sweet (literally) memory of childhood."
"Kena ada permit sebelum boleh sembelih haiwan korban. Dan 4 lagi fakta yang anda kena tahu Rasanya, baru je hari tu kita sambut Hari Raya Aidilfitri, sekarang ni dah nak sambut Hari Raya Aidiladha pula. Berbeza dengan Aidilfitri, Hari Raya Aidiladha lebih sinonim dengan ibadah haji dan ibadah korban. Sebab itu jugalah, ada orang panggil hari raya ni sebagai Hari Raya Haji atau Hari Raya Korban. Bagi yang menunaikan haji, bermula pada 9 Zulhijjah ni mereka akan berwukuf di Padang Arafah dan seterusnya akan melaksanakan tawaf di Kaabah, saie dan sebagainya. Bagi yang tak tunaikan haji pula, biasanya mereka akan jalankan ibadah korban dekat kawasan masing-masing. Di Malaysia ni, antara haiwan yang popular dikorbankan mestilah lembu dan kambing. Kadang-kadang tu ada juga yang korbankan unta atau kibas, tapi jaranglah berlaku. Walaupun ibadah korban ni dah biasa dilaksanakan di Malaysia, tak dapat dinafikan masih ada persoalan dan fakta yang kita mungkin tak tahu atau terlepas pandang. Dan antaranya adalah… 1. Tak boleh sembelih haiwan korban kalau tak ada permit Menurut statistik Jabatan Perkhidmatan Veterinar (JPV) sampai Jun 2019, permintaan stok bekalan lembu untuk penyembelihan Hari Raya Korban mencecah sebanyak 48,048 ekor, manakala kambing dan biri-biri sebanyak 35,940 ekor. Permintaan ni dijangka bertambah, sehingga sehari sebelum Hari Raya. Seperti mana yang kita tahu, kebanyakan aktiviti korban ni nanti akan dijalankan di tempat awam seperti di kawasan masjid dan surau. Tapi korang tahu tak yang penyembelihan di luar rumah penyembelihan hanya boleh dibuat kalau dapat permit daripada JPV? Berdasarkan Kaedah 5(1) Akta Binatang 1953, Kaedah-Kaedah Binatang (Kawalan Penyembelihan) 2009, dinyatakan: Kecuali sebagaimana yang diperuntukkan dalam Kaedah-Kaedah ini, tiada seorang pun boleh menyembelih atau menyebabkan disembelih apa-apa binatang kecuali di rumah penyembelihan diluluskan atau rumah penyembelihan dilesenkan. Manakala, dalam Garis Panduan Penyembelihan Ternakan Korban terbitan JPV pula kata – mana-mana pihak (sama ada pengurusan atau individu) yang nak buat penyembelihan di luar rumah penyembelihan kena dapatkan Sijil Kesihatan Veterina, Akuan Kebenaran Pindah dan Permit Penyembelihan Luar. Ketiga-tiga dokumen ni boleh didapati dari Pusat Veterinar Kecil, Pejabat Veterinar Daerah, Ibu pejabat Perkhidmatan Veterinar Negeri dan Rumah Sembelih Jabatan. Tujuannya adalah untuk memastikan haiwan tu diuruskan dalam keadaan yang betul, bersih, tak berpenyakit dan selamat dimakan. Malah, pada tahun ni seramai 317 pegawai JPV ditugaskan untuk membuat pemeriksaan veterina di seluruh negara sepanjang musim Aidiladha. 2. Ibadah korban cuma boleh dijalankan dalam tempoh 4 hari Menurut pandangan majoriti ulama, hukum melaksanakan ibadah korban ni adalah sunat muakkad (sunat yang dituntut) bagi setiap individu yang mampu. Tapi bila memilih haiwan yang nak dikorbankan, ia mestilah cukup umur seperti mana yang ditetapkan. Secara ringkasnya, ia adalah: Unta – 5 tahun Lembu – 2 tahun Kerbau – 2 tahun Kambing – 2 tahun Biri-biri – 1 tahun Kalau haiwan tu masih tak cukup umur, korang tak boleh jadikannya haiwan korban. Kalau buat juga, korban korang tu dikira tak sah. Selain itu, haiwan yang nak dikorbankan tu juga mestilah tak cacat, macam – kaki tempang, buta, cedera, kurus sangat, berpenyakit dan sebagainya. Penyembelihan pula mestilah dibuat pada Hari Nahar (10 Zulhijjah) dan Hari Tasyrik (11 sampai 13 Zulhijjah). Jadinya, korban tak sah kalau dibuat sebelum 10 Zulhijjah atau lepas 13 Zulhijjah. Satu lagi yang kita kena tahu, walaupun dah masuk 10 Zulhijjah, korban masih tak boleh dibuat, sebelum selesainya Solat Sunat Aidiladha. “Penyembelihan dilakukan apabila berlalu masa dua rakaat solat sunat Hari Raya Adha serta bacaan khutbah. Sebagai contoh: Masa yang ditetapkan untuk solat sunat Hari Raya pada jam 8.30 pagi dan selesai pada jam 9.30 pagi. Maka waktu berkorban bermula pada jam 9.30 pagi.” – Dipetik dari JAKIM. Dalam masa sama, kebenaran dari JPV untuk menyembelihan haiwan korban di luar rumah penyembelihan juga hanya dibenarkan dalam tempoh 4 hari ni. Tapi bila dah korbankan haiwan, mesti nak agihkan daging tu kan. Sebenarnya, ada syarat-syarat tertentu untuk agihkan daging korban, dan boleh ke bagi daging korban kepada orang bukan Islam? 3. Ada fatwa negeri yang benarkan orang bukan Islam terima daging korban Menurut Mufti Wilayah Persekutuan, Datuk Dr. Zulkifli Mohamad al-Bakri, ada beberapa cara pembahagian daging korban yang boleh diamalkan, antaranya: Disunatkan orang yang lakukan korban ambil 1/3 dari daging korban untuk dirinya dan sedekahkan 2/3 lagi kepada golongan fakir miskin. Atau, orang yang lakukan korban ambil 1/3 daging korban, agihkan 1/3 lagi kepada fakir miskin dan 1/3 bakinya sebagai hadiah kepada golongan kaya (macam saudara mara dan jiran tetangga). Tapi bagi sedekah 2/3 kepada fakir miskin lebih baik dari bagi kepada orang kaya. Lebih dituntut lagi, sedekahkan kesemua bahagian daging korban dan cuma ambil sikit je sekadar untuk ambil berkat. Amalan ni lebih baik sebab tak mementingkan diri sendiri dan mengikut sunnah Nabi Muhammad SAW. Tapi, boleh ke daging korban tu diberikan kepada orang bukan Islam? Dalam hal ni, ada dua pandangan iaitu boleh dan tak boleh. Bagi pandangan Imam Syafie (Mazhab Syafie yang diamalkan di Malaysia) hukumnya adalah haram. Bagaimanapun, masih ada ulama besar lain yang kata hukumnya ‘harus’, seperti Imam Abu Hanifah (Mazhab Hanafi) dan Imam Ahmad bin Hanbal (Mazhab Hanbali). Sesuai dengan kedudukan Malaysia yang amalkan Mazhab Syafie, ada negeri macam Johor yang berpegang dengan pandangan tak boleh beri daging korban kepada orang bukan Islam. Tapi, kalau daging tu dah dimasak dan nak dihidangkan kepada rakan-rakan termasuk yang bukan Islam, ia dibolehkan. “Namun dalam masalah agihan daging korban, hendaklah didahulukan kepada masyarakat Islam setempat yang memerlukan. Sekiranya terdapat lebihan daging yang tidak dikehendaki oleh masyarakat Islam dan dalam masa yang sama terdapat kafir dzimmi yang miskin yang dikenali dengan sifat baik dan ramahnya dengan masyarakat Islam, maka bolehlah daging korban sunat tersebut diberikan kepada mereka atas konsep dakwah...” – Dipetik dari keputusan Jawatankuasa Fatwa Negeri Johor (24 Ogos 2016). Mufti Perak, Tan Sri Dr Harussani Zakaria pula baru-baru ni keluarkan fatwa yang daging korban tak harus diberikan kepada orang bukan Islam. Tapi dalam masa sama, masih ada fatwa negeri-negeri lain yang membenarkannya, macam Sabah dan Perlis. Fatwa Negeri Perlis menyatakan: “Daging korban tatawwu’ ( korban sunat) adalah sunat dimakan oleh orang yang berkorban, diberi hadiah dan disedekahkan kepada fakir miskin. Adapun untuk orang kafir di Malaysia, maka hukumnya adalah Harus akan tetapi keutamaan adalah kepada golongan fakir miskin di kalangan orang Islam.” – Jawatankuasa Syariah Negeri Perlis (2 Januari 2003). Lepas kita bincang pasal pembahagian ni, ada juga persolaan pasal... 4. Boleh ke kita jual daging korban? Sebenarnya, hukumnya adalah haram untuk orang yang melakukan korban atau warisnya menjual daging korban tersebut. Haram jual tu bukan je daging, tapi juga termasuk kulit, bulu dan apa sahaja yang ada daripada haiwan korban itu. Tapi, untuk daging korban yang dah disedekahkan pula, daging korban tu menjadi milik sepenuhnya si penerima. Jadinya, si penerima tadi bebas nak buat apa je dengan daging tu, sama ada – jual, lelong atau hadiahkannya kepada orang lain. Dalam isu beri daging korban sebagai upah kepada penyembelih dan pelapah pula, hukumnya sama iaitu haram. Ini kerana, ia boleh dihukum jualan, sebab kedudukannya sebagai upah. “Hukum sembelihan korban sama seperti hukum sembelihan haji di mana daging dan kulitnya tidak boleh dijual juga tidak boleh diberikan kepada penyembelih dan pelapah sedikitpun daripadanya.” – Dipetik dari Pejabat Mufti Wilayah Persekutuan. Oleh itu, pihak masjid atau surau dinasihatkan supaya sediakan peruntukan untuk upah tukang sembelih dan mereka yang sertai ibadah itu. Dalam masa sama, kita juga selalu dengar pasal haiwan-haiwan korban yang ditaja oleh pihak-pihak tertentu. 5. Apa status haiwan korban yang ditaja? Benda ni timbulkan persoalan sebab seperti mana yang kita tahu, ibadah korban ni untuk individu. Tapi, kita selalu je dengar pasal haiwan-haiwan korban yang ditaja oleh pertubuhan tertentu, kerajaan negeri/pusat, syarikat dan sebagainya. Sebenarnya, ia dikira sebagai haiwan sumbangan sahaja. Ini kerana, entiti macam pertubuhan, kerajaan negeri/pusat dan syarikat tu bukanlah individu. Tapi, pihak yang menerima haiwan korban tu pula yang menjadi pe­milik haiwan tersebut. Maka pihak penerima haiwan seperti masjid sewajarnya menguruskan haiwan tersebut sebagai haiwan korban. Caranya dengan menawarkan haiwan korban kepada para jemaah surau atau masjid dengan bayaran tertentu. Kalau masjid pula yang menaja haiwan korban, ia masih sama iaitu ahli kariah masjid dinamakan untuk haiwan-haiwan yang akan dikorbankan tu. Dr Zulkifli al-Bakri berkata, lebih utama dan baik kalau nama-nama tu terdiri dari kalangan fakir miskin. Dalam pada itu, muncul juga persoalan tentang macam mana kalau haiwan korban tu adalah hasil sumbangan daripada orang bukan Islam? Dr Zulkifli perpandangan, hukumnya boleh sebab ia dikira sebagai hibah (pemberian hadiah) dan Islam tak larang Muslim terima hadiah daripada orang bukan Islam. “Makanya kita katakan di sini bahawa hukum menerima lembu korban hasil sumbangan daripada bukan Islam adalah harus dan dibolehkan.” – Dipetik dari Pejabat Mufti Wilayah Persekutuan. Walaupun ibadah ni dilakukan dengan semangat, tapi kita juga kena jaga adab Salah satu hikmah ibadah korban ni dilaksanakan adalah, ia memupuk semangat kerjasama dan bergotong-royong di kalangan masyarakat. Masa inilah, jiran tetangga dan kariah berkumpul dan saling bantu-membantu antara satu sama lain. Tapi tak dapat dinafikan ada juga kes-kes yang tak diingini berlaku masa aktiviti ni berjalan. Empat tahun lepas, kita dilaporkan tentang seorang wanita cerdera parah akibat ditanduk lembu korban. Malah, ada juga kes seorang lelaki maut kerana ditanduk lembu korban. Jadinya, kes macam ni dah beri kita isyarat tentang pentingnya aspek keselamatan dalam aktiviti korban. Oleh itu, diharapkan semua yang akan menyertai aktiviti ni nanti supaya utamakan keselamatan masing-masing. Selain tu, sebelum ni, Mufti Pulau Pinang, Datuk Dr Wan Salim Wan Mohd Noor ada nasihatkan orang ramai supaya tak ‘memviral’ gambar gelagat haiwan korban kerana bimbang menimbulkan salah faham serta tanggapan negatif di kalangan masyarakat. Jadinya, bersempena hari baik dan bulan baik ni, eloklah kita semua menjaga adab dan sensitiviti masyarakat. Dan ASKLEGAL juga ambil kesempatan ni untuk mengucapkan – SELAMAT MENYAMBUT HARI RAYA AIDILADHA!"
"Malaysian women CAN sue their husband's mistress for ruining the marriage This article is about civil marriages in Malaysia and does not include Islamic marriages. Click here for our article on divorce in Islamic marriages. Imagine this: You come home after a tiring day from work, take off your heels and walk towards the living room. Inside, you hear your husband of 10 years giggling and talking to someone on the phone – in a rather flirty manner. You even hear him call the other person “baby” (you’re pretty sure he doesn’t call his mother that). You decide to interrogate him but he says it’s just a friend whom he’s meeting for lunch tomorrow. Well,there’s nothing wrong with meeting friends, but you feel something wrong inside; you can’t help but have your doubts about it. So, you decide to follow (stalk) him and to your shock, you see him at a restaurant holding hands and kissing...another woman! As much as you want to cry for 3 days straight, you muster enough courage to make an appointment with a lawyer – because you can’t live with that lying, cheating, unfaithful husband of yours anymore. You also can’t help but wonder if you can get back at that good-for-nothing woman by sending her to jail for ruining your happily ever after. Here’s where your lawyer gives you two pieces of advice: 1. You can initiate divorce proceedings against your husband for committing adultery. 2. You cannot charge his lover for seducing your husband and sending her to jail. You’re okay with his first advice, but does this mean his lover is going to get away with what she has done? You can’t charge her, but you can sue her As much as you would want to see the adulteress (your husband’s lover) in jail, this might not be possible as the law does not charge women for seducing someone else’s husband. You might also be surprised to know that it’s only a crime if a man seduces a married woman for cheating on her spouse. This is explained under Section 498 of the Penal Code as follows: “Whoever takes or entices away any woman...to be the wife of any other man...with intent that she may have illicit intercourse with any person...shall be punished with imprisonment for a term which may extend to two years or with fine or with both.” Basically, the Act states that a man whom the wife of another man cheats with, would be charged with a crime for seducing her. This offence carries a 2 year jail sentence, a fine or both. For further clarification, we spoke to Choo Dee Wei, a lawyer from Messrs Dee, Netto, Fatimah & Ng. Here’s what he had to say: “From the wordings of Section 498 it would appear that it is an offence (only) for the man. The penal code isn't so much confined to adultery. It would seem wider as it is enticing (seducing)” – Choo Dee Wei to AskLegal. In other words, you can’t send your husband’s lover to jail for seducing him, BUT you can sue her for adultery under a different law... Make her pay for it Here’s something you should know – you can only sue your husband’s lover after you’ve established a case against him first. Once that’s done, you can make a petition against her in the civil court. This is stated under Section 58(1) of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) as follows: “On a petition for divorce in which adultery is alleged...the party shall make the alleged adulterer or adulteress a co-respondent, unless excused by the court on special grounds from doing so.” His lover is referred to as a co-respondent under the Act, in the event of adultery. Once the court thinks there is sufficient evidence against her, she can be sued for damages (monetary claims) – if the court thinks it’s fit to do so. And as we mentioned earlier, there is one important thing you should do before suing the homewrecker… You need to file for a divorce against your husband There are 4 grounds for divorce in Malaysia, and one of it is adultery. Under a Malaysian case law, adultery is defined as voluntary sexual intercourse between a married person and a person of the opposite sex, where either person is married. But before you throw your husband’s things out, take note that you have to prove beyond reasonable doubt (evidence beyond mere suspicion) that adultery has been committed by your partner with someone other than his/her spouse (a.k.a you). However, proving this can be problematic, because it’s rarely that convenient to catch your spouse in bed with another person. So, the courts rely on something called circumstantial evidence to conclude that adultery has taken place. But do take note, that the law on adultery isn’t limited only to husbands being sued. If the wife is caught cheating, her husband can sue her in court as well. To get an idea, here’s a non-exhaustive list of the type of evidences that the court would look at when a claim of adultery is being made: 1. Pictures of the husband and his lover spending their time together 2. The birth of a child where the husband had no access to the wife during possible period of conception (in situations where the husband alleges adultery against his wife) 3. Contracting STD’s from the extra-marital affair 4. Proof of receipts or luxurious gifts presented by the cheating spouse to his/her lover 5. Birth of an illegitimate child to the husband’s lover [READ MORE: To get a divorce in Malaysia, you need to prove at least 1 of 4 things…] [READ MORE: 5 common questions Malaysians ask about divorce law] You can sue both ways, but charge one way Basically, you can sue your husband/wife for adultery and claim for damages. But when it comes to charging someone for seducing a married person, the law states that only men can be found guilty for the crime, while women cannot be charged for seducing a married man (as explained in the first para). [READ MORE: What’s the difference between getting sued and getting charged in Malaysia?] Now before you start arguing about equal rights, you’ll be happy to know that there have been calls for Section 498 to include both men and women for enticement. This controversial law has sparked many debates on whether its fair and equal to everyone. Perhaps, we’ll just have to wait and see if the Parliament repeals or amends the law for seducing a married woman. But for now, your only option would be to sue your husband’s lover – or pelt eggs on her car (this is still a crime, don’t actually do it). [READ MORE: In Malaysia, a woman can't get charged for adultery...here's why]"
"Selamat ke Muslim minum boba dengan sijil halal negara luar? [Click here for the English version] Sekarang ni bukan lagi rahsia yang bubble tea atau boba dah jadi minuman yang cukup POPULAR. Boleh dikatakan rakyat Malaysia tak mengenal umur, jantina, kaum dan agama, semuanya suka dengan minuman trendy ni. Tapi di sebalik semaraknya perniagaan boba, ada dua francais boba yang dah mencetuskan kontroversi baru-baru ini kerana status halal mereka yang masih lagi kabur. Dengan kata lain, masyarakat Islam Malaysia mungkin tak boleh minum minuman ni dengan yakin. Pada masa sama, ada juga kontroversi lain baru-baru ni melibatkan bir 0% alkohol. Apa sebenarnya yang kecoh sangat ni? Jadi, jom kita mula dengan isu yang mudah dulu, dan ia adalah pasal bir 0% alkohol. Kalau korang nak tahu, JAKIM dari awal lagi dah kata, mana-mana produk yang ada perkataan “beer” (atau “bir”) tak akan diberikan sijil halal, tak kisahlah ia mengandungi alkohol atau tak. Hal ini selaras dengan garis panduan yang melarang mana-mana produk dengan nama “tidak halal” seperti bah kut teh atau bacon dari menerima status halal bagi mengelakkan kekeliruan kepada masyarakat Muslim. Walau bagaimanapun, hal yang agak sama juga nampaknya melibatkan bubble tea, dan ia pun buatkan kita tertanya-tanya: macam mana pula susu, teh dan bebola kanji ubi ni boleh jadi tak halal? Pada awalnya, isu ni muncul bila seorang pengguna Facebook bangkitkan kebimbangannya pasal perniagaan Xing Fu Tang dan The Alley yang mungkin tak ada sijil halal. Pengguna ni tunjukkan yang francais ni tak tersenarai dalam laman web Jabatan Kemajuan Islam Malaysia (JAKIM). Benda ni dah dapat reaksi hebat dari netizen yang komen dan kongsi, sampaikan The Alley keluarkan satu kenyataan. The Alley menjelaskan yang mereka masih lagi menunggu sijil halal dari JAKIM, manakala Xing Fu Tang pula kata mereka sebenarnya ada sijil halal dari Majelis Ulama Indonesia (MUI) yang juga merupakan pertubuhan Islam antarabangsa yang diiktiraf oleh JAKIM. Perkara ni kemudiannya dah bawa dua lagi persoalan lain… Kalau makanan tu tak ada babi, adakah ia masih selamat untuk dimakan? Adakah sijil halal dari negara lain membuatkan ia halal di Malaysia? Mari kita jawab soalan yang pertama dulu. Tanpa alkohol atau khinzir, tak bermakna ia halal Selalunya ada salah faham tentang halal, terutamanya di kalangan rakan-rakan bukan Muslim kita tentang makna “no pork” (tanpa khinzir). Sebenarnya, penerangan halal lebih luas lagi, di mana halal itu sendiri dalam bahasa Arab bermakna – dibenarkan di bawah undang-undang Syariah. Di Malaysia, peraturan tentang halal ada ditetapkan di bawah Perintah Perihal Dagangan (Takrif Halal) 2011, dan ia selaras dengan hukum syarak atau undang-undang Syariah. Halal ditakrifkan sebagai: Ia tak mengandungi bahagian atau benda dari haiwan yang dilarang atau tidak disembelih mengikut hukum syarak. Tidak mempunyai najis seperti darah Tidak memabukkan Tidak memudaratkan kesihatan Tidak mempunyai mana-mana bahagian anggota manusia Tidak bersentuhan dengan apa-apa alat atau permukaan yang dicemari najis Oleh kerana itu, ketiadaan sijil halal masih menjadi isu di kalangan umat Islam, sebab walaupun tak mengandungi daging babi atau lemak babi, masih ada keraguan tentang adanya pencemaran semasa dalam proses pembuatan. Maka, tujuan halal JAKIM adalah untuk memastikan yang sesuatu tu menepati standard dari pembuatan dan logistik, dari kilang sampailah masuk ke mulut kita. Hal ni berkaitan dengan isu pensijilan dari negara lain juga. Walaupun JAKIM mengiktiraf sijil halal dari negara-negara lain, ia mungkin lebih kepada produk yang dihasilkan dan dibungkus di negara-negara terbabit. Ini berbeza dengan kedai-kedai makan, kerana melibatkan penyediaan produk yang dari awal lagi menggunakan bahan mentah. Malah, JAKIM dah jelaskan yang premis tu tak akan disahkan halal, selagi ia belum diakui oleh JAKIM atau JAIN (Jabatan Agama Islam Negeri) tanpa mengira apa-apa keadaan sekalipun: ""Bahagian ini menegaskan bahawa premis makanan yang menggunakan bahan mentah atau ramuan yang telah dipersijilkan halal tidaklah bermaksud ia boleh memperihalkan premis makanan tersebut sebagai telah dipersijilkan halal. ""Melainkan hendaklah diperakukan halal oleh JAKIM atau Jabatan Agama Islam Negeri (JAIN) selaku pihak yang berautoriti dalam Pensijilan Halal Malaysia.” – JAKIM, dipetik dari kenyataan di halaman Facebook JAKIM. Seperti mana yang kita boleh nampak, banyak faktor yang dipertimbangkan untuk sesuatu makanan tu jadi halal, selain dari tak mengandungi daging babi dan alkohol. Bila ada percanggahan antara label dan isi kandungan sebenar, dapatlah kita faham kenapa masyarakat Muslim nak ia diperjelaskan, supaya sebarang kekeliruan tu dapatlah dielakkan. Tapi kadang-kadang, kamu mungkin kena buat keputusan sendiri Walaupun dah dinyatakan secara hitam dan putih, tapi masih ada lagi keadaan samar di antara apa itu halal dan haram. Berdasarkan kajian dari Kolej Universiti Islam Malaysia, di bawah tafsiran Syariah, terdapat dua konsep tambahan untuk menentukan sama ada makanan tu halal atau haram, iaitu masbooh dan makruh. Masbooh – sesuatu makanan tu tidak jelas status hukumnya sama ada ia halal atau haram. Keraguan ini mungkin datang dari pembuatan atau bahan-bahannya. Jika ada keraguan, maka ia dikira sebagai masbooh. Makruh – dalam kata lain, ia adalah makanan yang tak haram, tapi tak digalakkan kerana boleh menggalakkan kita mengambil benda yang tak halal. Oleh itu, masyarakat Muslim digalakkan untuk menjauhkan diri dari apa-apa yang makruh. Ini melatih mereka untuk mengawal diri masing-masing, supaya lebih senang mengelak dari terambil benda yang haram. Walaupun keyakinan tu ada dan kita lebih selesa bila tahu sesuatu makanan dah diiktiraf halal oleh JAKIM, masih ada lagi konsep caveat emptor, yang mana pengguna masih bertanggungjawab memeriksa kualiti barang yang dibelinya. Dengan kata lain, kalau korang ragu-ragu, buatlah pilihan yang lebih baik."
"Is it legal for people to ask for donations at kopitiams? Let's play a game. Suppose three people approached you at a kopitiam while you're having dinner. All three of them say that they are from so and so charity, would you be so kind and give a donation? But stories of syndicates pretending to be a charity start going through your head. You don’t want to be conned, but you’re also a bleeding heart and want to give. So you try to figure them out before forking out money. All three are well dressed, fresh faced, and optimistic as usual. Clean clothes, clean intentions. All three have brought proof to convince you that they are legitimate, honest-to-god-cross-my-heart-and-swear-to-die real charity, and your money will go to some sick children or stopping turtles from eating the millions of straws we threw away thanks to our boba addiction. This is their proof. Pay attention to it: we’ve bolded and coloured it for easy reading. Mr A He pulls out a folder and shows you a very clear, convincing, perfectly laminated with no air bubbles a certificate of registration under the Registrar of Society (ROS), signed by The Government itself. He then gives an Obama-esque ‘We can do it’ speech about what they do, and tells you their website you can check out yourself, www.realcharity.com.my. You check and the website exists, which matches the details he mentioned before. Mr B Mr B pulls out his ROS certificate. But that’s just par for the course. He does one better: he pulls out a brochure for you, filled with every single effort your donation could do if you would just hand them a nice, sizable donation in multiples of 10. A picture says a thousand words, but the twenty pages of pictures and newspaper cutouts scream: Will You Look At Those People We've Helped, We're A Real Legitimate Charity Sir Or Madam. You swear soft, melancholic music plays as you flip through it. Mr C So Mr C shows his certificate from ROS too. Then he starts to fumble through his pockets. Top, sides, both back pockets, till he remembers what he needs is shoved deep in his left pocket, wedged underneath his oversized smartphone. He pulls out a folded piece of paper, frayed at the edges and worn out where the folds crease. It's a permit from Polis Diraja Malaysia (PDRM), saying his charity is authorised to ask for donations. There’s also a smudge of chili sauce at the bottom. Eww. He hands it to you to read, followed by a bright smile. Who do you trust? No peeking for the answer. The correct answer is: Show/Hide Mr. C 10 points if you guessed it right, and another 10 points if you guessed because of the permit from PDRM! But why would the police permit be the determining factor? Wouldn't having proof such as a website, track record, and soft melancholy music in a brochure show more effort and legitimacy than just a paper from PDRM? This is because… Only organisations with a permit from PDRM can collect street donations Believe it or not, Mr C and his frayed out permit from PDRM is the only one allowed to do it. Under the House to House and Street Collections Act 1947, a person who solicits donations on the streets, public places or places of business (eg. a kopitiam), must obtain a license from the police in order to collect donations. In the legalese, it says under Section 3(1): “Subject to the provisions of this Act, no collection shall be made unless...a licence for the promotion thereof are satisfied.” So slick Mr A with his polished speech, and Mr B with his sob inducing brochure, are actually breaking the law. Under the same Act, in Section 3(3), unless they have a permit to ask for donations, they can be either be fined not more than five thousand ringgit, imprisoned not more than two years, or both. (Note: We know some of you might wonder how a legit police permit for soliciting donation looks like. We’ve contacted PDRM on this, and shall update the article promptly when we get to secure a copy.) Surprisingly, this fact tends to fly under the radar, since there are still people going around asking for donation and receiving it, without having a permit. Back in 2015, our former Inspector-General of Police (IGP), Tan Sri Khalid Bakar, has even made a statement on it to Bernama, responding to questions about street solicitors collecting donations for Palestine. “Individuals or organisations wanting to collect donations for humanitarian fund have to obtain permit from the Royal Malaysia Police (PDRM) before doing so.” —Tan Sri Khalid Bakar to Bernama. So everything should be clear now, right? The law spelled out that you need a permit, and the ex-IGP himself has stated the same. Then you hear the sound of coins dropped into a slot: another challenger appears. A teenager wearing a songkok and baju melayu is going around asking for donations in the coffee shop. Unlike the previous three, this one didn’t have a brochure. All he has is a converted biscuit tin, with a small slot cut through the metal lid, and a printed out sign saying, “DERMA MEMBINA MASJID KAMPUNG BETUL”, pasted on the front. You want to speak up and ask him for his police permit, but he points out a small fine print under the DERMA sign which says: “Religious organisations asking for donations is under the jurisdiction of the state’s religious body.” Is that true? Yes. Islamic charities are under the state’s religious body Technically, it’s true. Organisations or committees collecting donations to help out the Muslim community is under the jurisdiction of the state’s Syariah law, which differs from state to state, depending on the Majlis Agama Islam Negeri. Let’s use Selangor’s laws on this as an example. Under Section 106 (1), Enactment No. 1 of 2003, the Majlis may give a license to a person or body to collect money or charitable contributions to support the promotion of Islam, or the benefit of Muslims. So this could be the typical mosque building donation drive, and can even extend to collecting donations for Muslims in other countries such as Palestine. So can we donate to this nice, songkok wearing guy at the coffee shop? Not quite. The Majlis may have authorised them to collect donations, but there is a limitation: They are not allowed to ask for donations on the streets. If you went through Section 106 itself (god bless you), you might notice that there is no mention of where they are allowed to collect donations. The former Director General of JAKIM, Datuk Othman Mustapha, has come out with a statement to clarify on this. In a statement to Utusan Malaysia, he stated that they aren’t allowed to ask for donations in public places. This covers going from house to house, shopping malls, night markets, restaurants and other such places. This is a requirement set up by each state’s Majlis, and if they don’t follow it, their license can be revoked. They are only allowed to ask for donations from corporate figures, government agencies or private institutions. Listen to your Hati All of these requirements for permits, license, and restrictions on where we can ask for donations is for a good reason. Malaysia is one of the most giving countries, and people with criminal intent can see us as easy pickings. The safest option is still to send your donations directly to the organisation itself. Most of Malaysia’s NGOs and their contact details are listed on Hati.my. That way, you’ll never have any doubts where your money would end up at."
"If your bank closes down in Malaysia, what happens to your money? The concept of money has evolved throughout the past 40,000 years, from pretty shells and precious minerals in the Bronze Age to the digital numbers that you see in your banking app when payday arrives. But keeping very closely behind the evolution of money is another form of evolution – how to keep your money safe. It really wasn’t that long ago when the highest form of security for your cash was to literally sleep on it or hide it in a freezer (cold hard cash, amirite?), and this eventually moved to the idea of keeping it in banks or investments. But the thing is, this isn’t 100% safe either as investments can be lost and banks can also become bankrupt if the economy tanks or when customers panic and withdraw their deposits en-masse (called a bank run). So just like how you’d get an insurance policy in case something bad happens to you, this is where the concept of an ‘insurance policy’ for your bank account comes in. If you have a bank account, listen to the radio, or read some of our previous articles; there’s a pretty high chance you would have come across PIDM or Perbadanan Insurans Deposit Malaysia. From reading the comments on our previous articles, we sort of got the idea that while most people know what PIDM is, they aren’t exactly sure of how the coverage actually works. So we thought it would be interesting to compile these comments and get an answer for them… straight from PIDM. The easy part: What does PIDM actually do? In case you haven’t been paying attention to the ads, here’s a quick introduction to get you up to speed. PIDM is an agency formed under the Malaysia Deposit Insurance Corporation Act 2011 (MDIC Act 2011) to promote the stability of the financial system in Malaysia by insuring your bank deposits and insurance policies/Takaful certificates in the event a PIDM member bank or insurer goes bankrupt. These two forms of coverage are known as: DIS (Deposit Insurance System) – Coverage for your bank deposits, if your bank is unable to return that money to you. Protection is limited to RM250,000 per depositor, per member bank. TIPS (Takaful and Insurance Benefits Protection System) – Coverage for your Takaful certificates and insurance benefits, if the Takaful operator or insurance company is unable to honor the benefits covered under your insurance policy or Takaful certificate. Protection is up to RM500,000 or more depending on the type of benefits, so click here for the full list of benefits protected by PIDM. Oh, and this coverage is free and automatically provided by PIDM! So, that’s the easy part. For the more advanced stuff, we’ll be focusing on the bank deposit (DIS) questions to keep things less confusing. Let’s start with the most common question we see in the comments…. 1. My bank told me they’re not insured…? As of today, PIDM covers 92 member institutions – 42 member banks and 50 insurer members – meaning that most, but not all, banks are members. Member banks are all commercial and Islamic banks defined under Section 36 of the Malaysia Deposit Insurance Corporation Act 2011 as follows: “...licensed under the Banking and Financial Institutions Act 1989 [Act 372], the Islamic Banking Act 1983 [Act 276], the Financial Services Act 2013 or the Islamic Financial Services Act 2013 after the commencement of this Act, shall be deemed to be a member institution from the date it is granted the licence.” … and are automatically required to be members of PIDM, regardless of whether it’s a local bank or a foreign bank operating in Malaysia. PIDM provides a list of member banks here, so to answer the question in the screenshot above; Bank Muamalat is a PIDM member while Bank Rakyat is not because – FUN FACT – Bank Rakyat is a development financial institution regulated under a different Act called the Development Financial Institutions Act 2002. If you want to know whether your bank is a member ban of PIDM, the easiest way is to refer to the member bank list linked above, or you can look out for the PIDM sticker placed at the entrance of their branches. Pro tip – you can also ask your bank! 2. I have RM300k. Does this mean I need to open TWO bank accounts? To the person with RM100 billion in their account – can we be your friend? We’re assuming that the question is a hypothetical one but, jokes aside, yes – you can split your money across different accounts and/or banks to maximize your coverage. PIDM explains that there are three ways to do this… 1. Open accounts in different banks “PIDM's protection is applied separately per depositor per member bank. If you have RM250,000 with Bank A and RM250,000 with Bank B, the amount protected is RM500,000 if both Bank A and B become bankrupt.” – PIDM Yup, if you have RM1 million, you could open deposit accounts in four banks to fully protect the amount. However, do take note that this applies to separate banks and not bank branches. Currently, 42 commercial and Islamic banks are member banks of PIDM (full list here) 2. Open different types of accounts within the same bank “To receive separate protection, you can open different types of deposit accounts within one bank. For example, apart from an individual savings account, you can also open joint-name accounts, [and others]” If you aren’t too keen on the idea of having 4 different banking apps on your phone to manage your massive moolah, you can actually open different types of accounts within the same bank. For example, your million Ringgit can be split into: an individual account (in your own name), a joint account with your spouse, a trust account for your son, and a trust account for your daughter … within the same bank to be fully protected. Click here to check out the different categories of deposit accounts. 3. Open a conventional and an Islamic banking account within the same bank “You can also opt to open both a conventional and an Islamic account with your bank to enjoy separate protection from PIDM.” Just to clarify, if you have RM250k in a regular savings account and RM250k in a Islamic savings account within the same bank, you’re also covered for a total of RM500k. Click this link for examples of how the coverage will work. 3. Will I be charged by PIDM every time I deposit money or take a loan? So, PIDM reiterated to us that their mandate is to protect deposits, not loans. It’s a frequent point of confusion because accepting deposits and providing loans are a bank’s main business. “Let’s take a moment to think about the mechanics of a loan – if a bank goes bankrupt, the bank does not “owe” you any money so there’s no such thing as “protection” here. But if you have a bank deposit account, you would want to be assured that you can get back your money if the bank goes bankrupt, so this is where PIDM comes in.” – PIDM While comparing PIDM protection to insurance is a good way to get the understanding across, it’s not entirely the most accurate. This is because, while you need to sign up for a policy and pay premiums to an insurance company for protection, PIDM’s coverage is free and automatic. “The protection is automatic and free – no sign-ups or fees required. We will also not ask for your personal and/or financial details.” – PIDM In other words, if you ever receive a call or message asking you to verify your personal details or pay a fee to PIDM, you can confidently tell the caller where to deposit their lies (hint: it’s a place where the sun don’t shine) because it’s definitely a scam. Similarly, if someone tells you that you need to make a payment to PIDM to protect your bank deposits, loan, or investment; that’s a scam as well. [READ MORE: Asked to pay for PIDM protection? That’s a scam!] The money that PIDM will use to pay you actually comes from the member institutions themselves. Basically member banks and insurer members pay annual premiums/levies to PIDM, which then goes into funds that will be used to make payments to you when needed. On that note... 4. Will PIDM protect my Amanah Saham, or against robberies/cyberattacks? The quick answer to this is no, as PIDM only protects your money if a member bank goes bankrupt. So it’s mainly for deposits saved with its member banks and does not cover investments. In cases of fraud, scams, natural disasters, fire, robbery, or a cyber-attack on your bank, the payment will come from the bank itself, and is dealt with on a case-by-case basis. As a reference though, here’s a list of products that fall under PIDM’s protection (again, under the conditions that a bank goes bankrupt and within the RM250k per depositor limit) Savings accounts Current accounts Fixed deposits Islamic deposit accounts (e.g. wadiah deposit) Bank drafts, cheques, and any other payment instructions/instruments made against a deposit account You will enjoy PIDM’s protection for these products whether they’re denominated in Ringgit or foreign currencies. And, here’s what’s NOT protected: Deposits not payable in Malaysia Interbank money market placements Negotiable instruments of deposit and other bearer deposits Repurchase agreements Unit trusts (such as Amanah Saham), stocks, and shares Gold-related investment products/accounts and Islamic Investment accounts To be on the safer side, you can always check with your bank to see if PIDM protects your deposit. According to PIDM, a member bank must inform you whether or not your deposit is eligible for the deposit insurance protection before you place your money with them. Member banks would also have a list of deposit products that are eligible for deposit insurance protection displayed in their premises or websites. 5. Wait… how will PIDM return my money? Cheque ah? This question was actually asked by one of our interns after we published our first article on PIDM, and we… had no idea. As it turns out, there is little action that needs to be taken from the customer’s side – you don’t need to apply, make a report, or open a new bank account somewhere else. “You do not need to make a claim. PIDM will announce how and when reimbursement of insured deposits will be made. PIDM will base its reimbursement on the depositor records obtained from the member bank. It is important to keep your record updated at your bank” PIDM will make payments on insured deposits to customers if a winding up (going out of business) order has been made in respect of a member bank. They will reimburse the insured deposits as soon as possible, and no longer than three months from the date of the winding up order. In such a scenario, PIDM will make public announcements to notify depositors on how and when the payment of insured deposits will be made. They will also make communications channels – including its call centres and website – available for you to find out the status of you insured deposits. Bonus: Why does PIDM even need to advertise themselves? This question popped up way too often for us to leave out, and the response is: “Firefighters are called to protect the public in emergency situations. These days, firefighters have expanded their role to be more involved with the community. They raise awareness, conduct fire safety checks and communicate fire prevention and other safety messages to the public. PIDM’s role is very much similar to that of the firefighters’ but within the context of the financial system.” Other than the protection it offers, PIDM is pretty big on educating the public in financial literacy. Their Facebook Page is a channel for you to ask your burning questions on PIDM protection. They’re always open to more questions, so let us know if you have any more (don’t forget, they cover Takaful and insurance benefits as well) and we might do a part 2. Otherwise, you can always call their toll-free line at 1-800-88-1266 or visit their website linked here."
"The strange story of why two families sued the Sabah government over... turtle eggs Sometimes, laws can look great, especially one focused on protecting the environment. But what we sometimes miss is how it affects the inhabitants within that place. This is what happened in Sipadan, an island off the coast of Sabah. In 2004, the state secretary issued an order to the inhabitants of Sipadan to demolish all structures and to vacate the island. There were two native families staying at the island; one family was headed by Abdul Rauf, the other by Haji Abdillah. Both families weren’t happy with this order. Seven years before that, everyone on the island was barred from collecting turtle eggs. Now they can’t even stay there. They felt that this is unfair, and infringed on their rights on the island as natives (basically, the original inhabitants of the island). So they sued the Sabah government, by claiming the Native Customary Rights (NCR) that they’ve had for generations on the island. To understand this, we will need to go back in time... They were given permission before Sabah was even ‘Sabah’. Historically, both Abdul Rauf and Haji Abdillah are descendants of high ranking officers of the Sultanate of Sulu. Back in 1878, when Sipadan island is ruled by the sultanate of Sulu, the most profitable commodity that can be harvested on the island are turtle eggs (the boba shops of that century). The Sultan of Sulu managed the rights to collect turtle eggs on the island, by granting the rights himself. Abdul Rauf and Haji Abdillah’s ancestors were both granted the rights to collect turtle eggs. The right is heritable, and they have been doing it up until 1997, when the government declared the island as protected area under The Protected Areas Order 1959. Since they have been collecting turtle eggs for centuries, they decided to bring up their native customary rights to the court. This continuation of their forefather’s livelihood will be the main argument for their case. Now, you might wonder what is Native Customary Rights (NCR)? The NCR protects the native’s land by allowing them to claim the land as their own. In Sabah, the Native Customary Rights is recognised and enshrined in Section 15 of The Sabah Land Ordinance. The law works by recognising their right to stay, based on evidence that they have been staying there for generations. Abdul Rauf and Haji Abdillah both claimed that they have NCR over the island, as they fulfilled the conditions set out in Section 15(d) and (e) of The Sabah Land Ordinance that is continuous occupation (staying on the land) and agriculture activity. “ Native customary rights shall be held to be – (d) grazing land that the claimant agrees to keep stocked with a sufficient number of cattle or horses to keep down the undergrowth; (e) land that has been cultivated or built on within three years;” For this case, both families decided to use their turtle egg collecting history as the argument to establish their NCR claim on the island. The court decided to combine both their cases into one trial To summarize, the families filed separate lawsuits but it is only at the highest court that decided to have a joint hearing for both families – basically hearing both cases together – since their arguments to claim their NCR are similar enough. We’ll break the final judgement from the highest court into three separate points: Both families turtle egg claim, Abdul Rauf’s claim; and Haji Abdillah’s claim. 1.The turtle egg dispute Both families claimed that they have used the land for agriculture activity, that is collecting turtle eggs. However, the families claims were rejected by the court, due to the fact that The Sabah Land Ordinance doesn’t recognise collecting turtle eggs as agriculture activity. In Section 15(d) of The Sabah Land Ordinance, it only recognises that land used for farming or rearing animals can only be established as NCR. As you might know, collecting eggs on the beach is not farming or rearing animals. “ Native customary rights shall be held to be ...(d) grazing land that the claimant agrees to keep stocked with a sufficient number of cattle or horses to keep down the undergrowth;” However, they only needed to fulfill one of the requirements of the NCR in The Sabah Land Ordinance, to establish NCR. Both families claimed that they have fulfilled Section 15(e) of The Sabah Land Ordinance, where NCR can be established if you have continuously occupied the land. “ Native customary rights shall be held to be ...(e) land that has been cultivated or built on within three years;” But the court disagreed. Just because the families were collecting eggs there for centuries, it doesn't mean that they occupied the island. The court decided that it is insufficient to support their claim that they have continuously occupied the island. There must be more evidence to support their claim. Conclusion: Rejected The court then looked into each family’s evidence separately, to decide whether they still have a case. 2. Abdul Rauf’s claim Abdul Rauf was not able to provide more evidence that his family have continuously occupied the island for three years, as per the requirement in Section 15(e) of The Sabah Land Ordinance. “ Native customary rights shall be held to be ...(e) land that has been cultivated or built on within three years;” This is where Abdul Rauf’s NCR claim fails as he could not prove that he stayed on the island other than his occupation as turtle egg collectors. He did not have any permanent structures set up on the island to support his claim. Conclusion: Rejected 3. Haji Abdillah’s claim Fortunately for Haji Abdillah, he was able to prove that his family has inherited a ‘rumah warisan’ and a coconut orchard from his ancestors. The existence of the ‘rumah warisan’ and the coconut orchard helped convinced the court that the requirement of continuous occupation has been established. Haji Abdillah could have made his NCR claim before the island was declared as a Protected Area. However, he made a mistake by not registering his land to the Sabah state government earlier. The state government did not issue any land titles to confirm that he owns the land, which means the land now belongs to the state. This would come under Section 84 of The Sabah Land Ordinance, which states that the land that are not registered would become the state’s land. “ All land which has not been claimed or the claim to which has been rejected shall become absolutely the property of Government.” The new status of Sipadan Island as a protected area complicates Haji Abdillah’s claim. Due to Section 9 of The Protected Areas Order 1959, the Federal Government now controls all activities on the island and no one is allowed to be on the island without the permission of the Federal Government. He cannot claim the island now because the state government has no power to issue any land titles to him as the land now belongs to the Federal Government “ Any person who attempts to enter or who is in a protected area or a protected place and who fails to stop after being challenged three times by an authorized officer so to do may be arrested by force, which force may if necessary to effect the arrest extend to the voluntary causing of death.” We might all agree that it is unfair for the families to lose their main income and their native land. So did the courts, who decided that the families should receive some compensation. Conclusion: Complicated – Haji Abdillah could have NCR claim over the island but he lost the NCR claim. But only one family received compensation In the end, the court decided that the two families should not get any compensation for their loss of income as turtle egg collectors. It may seem unfair, but the court decided that it doesn’t make sense to give compensation, when the sale and consumption of turtle eggs were made illegal by Section 87(4) of The Sabah Wildlife Conservation Enactment 1997. “ Any person who – (a) collects or has in his possession any turtle egg (b) sells any turtle egg, commits an offence.” Only Haji Abdillah’s family was given compensation for their loss of NCR claim on the island, as he could prove that he had stayed on the island. Abdul Rauf’s family could not prove their case, and so they did not receive anything. In the end, both families are now off the island, and barred from collecting turtle eggs. Despite having lived there for centuries and having a claim, they weren’t able to fully prove it in court to fulfill the requirements of NCR. Haji Abdillah could have made a claim, but lost on technicality, because he didn’t register his land before this. Sadly, Abdul Rauf’s family had to accept that they will get no compensation. The ruling may seem harsh, but with the change of time, laws will change too. Changes intended for long term benefits can sometimes cause losses in the short term. Due to the need to protect Sipadan as a sanctuary, the law might cause some groups to lose their livelihood, and in this case, even their generational land. Whether this is right or wrong, that is up to you to decide."
"Your Majlis Perbandaran can fine you for turning your house into an Airbnb You might have heard of Airbnb or even tried it before. Airbnb is basically a site where people can list down their homes, and potential “lodgers” can book the property according to their needs during their short stay. The concept is similar to a hotel, but instead of booking just one room, you can now book an entire house or condo at an affordable price. So, if you do have an extra house and want to make passive income out of it, we have good news...and bad news. The good news is, Airbnb is not illegal in Malaysia and you can always advertise your home on the site. However, the bad news here is your local authorities and condo management have the authority to fine you for running an Airbnb business. But if it’s not illegal, why can the local authorities fine you for running an Airbnb? Because Airbnb is only legal in some states Let’s start with the bigger picture first. There are actually no specific laws in Malaysia in regard to Airbnb. However, the legality of Airbnb is explained by the Urban Wellbeing, Housing and Local Government Ministry, where Airbnb is said to be an online transaction and an agreement between a host and a traveller. Basically, it is just an agreement between two parties who connected via a site and have mutually conformed to let out/rent the property for several days. But take note, although there are no Federal laws acting upon Airbnb, it is currently being regulated by the local government in each individual state. For instance, the state government in Sabah has deemed all Airbnb units/homes to be illegal. The former Sabah Assistant Tourism, Culture and Environment Minister, Datuk Pang Yuk Ming states the following on the legality of Airbnb: “Airbnb is (considered) a business, but if an apartment is built as residential property, it cannot be used for commercial purposes. Kota Kinabalu City Hall has taken the right step (to ban Airbnb),” – Datuk Pang Yuk Ming to New Straits Times. So, the main reason behind this Airbnb ban in Sabah is to safeguard the hotel industry from the fast growing Airbnb. However, there have been recent talks by the state government where they’re reconsidering to draft guidelines for to regulate this new trend. Although most states have not outrightly banned Airbnb, other local authorities across Malaysia have come with new ways to regulate short term rentals in Malaysia. DBKL for instance, encourages property owners to register their residential properties online. If you’re planning to rent out your landed property for Airbnb purposes, registration is pretty straightforward – but if your house is a strata property...things might get slightly complicated. So, due to the mushrooming of condominiums all across Klang Valley, DBKL delegated its powers to residential managements when it comes to regulations – particularly for strata properties (like condos and apartments). [READ MORE: The difference between strata title vs individual title] Condo managements can now set “house rules” on property owners If you own a condo unit and think that you have all the right over your property...think again. Despite owning the unit, you will be bound to certain “house rules” that are fixed by the condo management. All condominiums, apartments and gated communities have strata laws acting upon them – which gives power to the management to set certain rules and regulations on the property owners. This is because strata properties normally come with common facilities such as swimming pools, clubhouses and a gym which is shared by all the residents in the building. Besides the delegated powers from local authorities, the condo management’s power is also stated under Section 32(3) of the Strata Management Act 2013: “A joint management body may, by special resolution, make additional by-laws or make amendments to such additional by-laws not inconsistent with the by-laws prescribed by the regulations...for regulating the control, management, administration, use and enjoyment of the building or land intended for subdivision into parcels and the common property...” As we mentioned earlier, DBKL has delegated its powers to condo managements to regulate by-laws. But since the powers are also mentioned here in this Act – even if you lived anywhere else besides KL, the law still applies to you. So basically, your condo management has the right to make these by-laws (internal regulations) to stop owners from converting their unit into an Airbnb. But how exactly can they impose these rules to the owners of the units? You can be fined...RM200 Besides being able to impose by-laws, the management also has the authority to impose fines on owners who break any of the by-laws made by the management. This is stated under Section 32(3)(i) of the Act as follows: “Imposition of fine not exceeding two hundred ringgit against any parcel owner, occupant or invitee who is in breach of any of the by-laws” Based on the Act, the condo management has the right to fine the host or the guest not more than RM200 for breaking the by-laws. Now, here’s an interesting fact about the law – it allows the management to fine you ONLY ONCE for the offence. This was found in the case of Verve Suites Mont’ Kiara Management Corp v Salil & Ors. The court here clarified that the condo management cannot fine the unit owners on a daily basis for any breach of the by-laws. So, let’s say you let your condo out for an AirBnb rental for 3 days, despite knowing about the prohibition on AirBnb. Your condo management committee finds out and fines you RM200 per day, over the course of 3 days. If this happens, then the management is at fault for exceeding the maximum fine amount that has been imposed by the law. Some of you might now take this as an opportunity to game the system and cover the cost of the fine by bringing guests over to rent your place via Airbnb. If you were cunning enough to think this way, you should know that the court can stop you from doing so (by giving an injunction) which might prohibit you from operating the Airbnb for at least 7 days – that was basically the judgement given by the court in this case. So, perhaps the best thing to do is to check with your local council and the condo management first before you convert your unit into an Airbnb. But if it’s all good on their side, good luck in starting your new venture as an Airbnb host in Malaysia! [READ MORE: Have you ever bought a house in Malaysia and had no idea what you signed?] [READ MORE: Can condo managements in Malaysia be sued for letting your condo become run down?]"
"Korang tak boleh saman pemilik kucing, sebab... tak ada undang-undang terhadap kucing [Click here for English version] Di dunia ni, ada dua jenis haiwan yang selalunya dipelihara, iaitu kucing dan anjing. Sebaliknya, terdapat lebih dari dua jenis undang-undang yang ada di Malaysia. Sebahagian dari undang-undang ni boleh dikatakan berterus terang je, tapi ada juga yang bersifat umum dan kadang-kadang tu agak pelik. Sebelum ni, kami ada tulis satu artikel pasal undang-undang ganjil di Malaysia, yang kalau korang dengar pun rasa kelakar. Tapi, sebenarnya undang-undang tu memang wujud dan kebanyakannya korang boleh dapati dalam Akta Kesalahan-Kesalah Kecil 1955. Kalau korang periksa Akta ni, korang akan nampak undang-undang pelik macam menunggang gajah atas jalan raya dan memandu babi ke arah jalan awam yang dianggap sebagai kesalahan. Mungkin hal ni jadi disebabkan undang-undang ni memang dah lama dan tak pernah dipinda sejak tahun 1955 lagi. Jadi, masa kitorang tengah tengok Akta ni, kitorang kenal pasti sesuatu yang agak pelik. Sebab, adanya undang-undang dalam Akta yang bercakap pasal – lembu, kuda, babi dan termasuk juga anjing untuk kesalahan seperti merosakkan harta benda atau membahayakan orang lain. Tapi… tak ada pula undang-undang pasal kucing! Sebabnya, kucing tak berguna (sorry...) Secara ringkasnya, Akta Kesalahan-Kesalahan Kecil 1955 adalah akta yang memperuntukkan hukuman untuk kesalahan-kesalahan kecil. Dan bahagian khusus yang kita nak tengok di sini adalah Seksyen 9 Akta yang menyatakan (tiada terjemahan rasmi, diterjemahkan oleh Asklegal: ""Sesiapa yang menjadi pemilik atau orang yang menjaga mana-mana kuda, lembu, biri-biri, kambing atau babi membenarkan haiwan itu berkeliaran di mana-mana jalan awam atau mana-mana harta awam atau persendirian boleh didenda tidak melebihi satu ratus ringgit dengan setiap haiwan ... "" Pada dasarnya, Akta ni menyatakan bahawa apa-apa kerosakan yang dilakukan oleh kuda, lembu, biri-biri, kambing atau babi terhadap harta awam/swasta akan didenda tidak lebih dari RM100, atau apa sahaja jumlah yang difikirkan sesuai oleh mahkamah. Seperti mana dikatakan di awal tadi, Akta ini ada undang-undang untuk anjing. Lebih menarik, ia bukan dalam satu seksyen je, tapi dalam tiga seksyen: Seksyen 6: Anjing berlari ke arah orang – Jika anjing mengejar orang, kenderaan atau haiwan lain. Seksyen 7: Tanggungjawab pemilik anjing – Jika anjing menyebabkan bahaya pada orang atau merosakkan harta benda Seksyen 8: Membiarkan anjing menyerang atau menakutkan seseorang [BACA LAGI: If your dog bites a robber in Malaysia, can you get sued or taken to jail?] Dengan semua undang-undang terhadap anjing ni, ada satu haiwan popular yang tak ada peruntukan undang-undang iaitu kucing. Jadi persoalannya sekarang, kalau ia tak ada dalam undang-undang, adakah ni bermaksud kucing (dan pemiliknya) kebal dari sebarang undang-undang? Mungkin penerangan dari peguam, Fahri Azzat boleh bantu kita memahami hal ni dengan lebih baik. Kata Fahri: Saya fikir kucing biasanya ditinggalkan (dari Akta) kerana ia bukanlah binatang ternakan (beasts of burden) atau binatang berburu (beasts of hunt). Ia dipelihara semata-mata untuk keseronokan (dan mungkin sikit untuk kawalan tikus). Jadi, sedikit undang-undang dikenakan kepadanya. –Fahri Azzat, emelnya kepada Asklegal. Dalam erti kata lain, ia mungkin ada kaitan dengan untuk apa kucing itu digunakan. Oleh kerana ia adalah haiwan domestik, dan tak ada apa-apa tujuan lain dipelihara melainkan kerana kecomelannya – maka, ia tak dikelaskan dalam Akta kerana kurang kegunaan komersial. Jadi, adakah ni bermakna kucing bebas dari sebarang tanggungjawab undang-undang, dan korang pun mula pandang tinggi dengan kedudukannya? Tak juga, sebab kamu sebenarnya masih boleh saman pemilik kucing Kalau ia adalah kesalahan di bawah undang-undang Persekutuan – dalam kes ni, di bawah Akta Kesalahan-Kesalahan Kecil, maka korang akan dibawa ke mahkamah dan kena bayar denda jika didapati bersalah. Tapi disebabkan kucing tak tersenarai dalam Akta ni, pihak berkuasa tak boleh mendakwa pemilik kucing di bawah Akta Kesalahan-Kesalahan Kecil, tapi memfailkan tuntutan mahkamah masih lagi boleh dibuat - yang biasanya dipanggil lawsuit. Untuk lebih tepat lagi, korang masih boleh saman pemilik kucing kerana kerosakan harta benda atau kecederaan fizikal akibat kucing mereka. Terdapat banyak jenis tort, tapi untuk kucing, ini 2 contohnya: Kacau gangggu persendirian (private nuisance): Kucing jiran masuk dalam kawasan korang, buang air dekat seluruh halaman dan rosakkan rak kasut baru korang. Rasa marah, korang pergi ke rumah jiran dan minta dia bagi ganti rugi atas kerosakan yang kucing dia dah buat, tapi dia tak mahu berbuat demikian. Kecuaian: Kucing jiran cakar korang bila korang cuba halaunya dari kawasan korang. Korang sekarang kena dapatkan suntikan rabies dan korang nak jiran korang bayar untuknya. Secara asasnya, korang masih boleh saman pemilik kucing dalam dua keadaan ni. Kalau korang nak saman seseorang kerana kerosakan harta benda atau kecederaan fizikal disebabkan oleh kucing mereka, ini apa yang Fahri kata: Seorang pemilik haiwan peliharaan bertanggungjawab atas kerosakan yang disebabkan haiwan peliharaannya dalam tort di bawah common law (undang-undang am). Jadi dia boleh didakwa di mahkamah sivil kerana kerosakan harta benda yang disebabkan oleh kucingnya.” – Fahri Azzat Tapi kelemahan cara ni adalah, ia dah pasti membuatkan korang berbelanja lebih untuk saman. Dan oleh kerana saman memerlukan wang yang banyak dan memakan masa, sesetengah orang mungkin tergoda untuk meracun atau curahkan air panas ke atas kucing tu. Tapi, inilah dia undang-undang yang kucing pun termasuk… Menyakiti kucing (atau apa-apa haiwan lain) akan menyebabkan kamu dipenjara Sebenarya ada je kes ekstrem di mana orang sanggup racun haiwan peliharaan jiran mereka. Kalau korang rasa menyakiti haiwan ni boleh menyebabkan haiwan tu tak masuk kawasan korang lagi, korang silap. Sebabnya, koranglah yang akan bertanggungjawab di bawah Akta Kebajikan Haiwan 2015. Akta ni secara dasarnya mengawal semua aktiviti yang melibatkan haiwan melalui Lembaga Kebajikan Haiwan. ""Penganiayaan terhadap haiwan "" ditakrifkan di bawah Seksyen 29 Akta seperti berikut: “(1) Mana-mana orang yang – (f) menyebabkan, memperoleh atau, sebagai pemunya, membenarkan mana-mana haiwan dikurung, diangkut, diangkat atau dibawa dengan apa-apa cara atau kedudukan yang menyebabkan haiwan itu mengalami kesakitan atau penderitaan yang tidak sepatutnya Jadi, kalau korang menggunakan perangkap atau meracun mana-mana kucing yang masuk ke dalam kawasan korang, korang akan diklasifikasikan sebagai pendera haiwan di bawah Akta. Pesalah akan dikenakan denda antara RM20,000 hingga RM100,000 dan/atau dipenjara 3 tahun. Dalam erti kata lain, korang tak boleh ""menghukum"" kucing dalam apa jua cara kerana ada undang-undang yang melindunginya dari dicederakan. [BACA LAGI: 5 undang-undang baru yang meningkatkan tahap perlindungan haiwan di Malaysia] Ini dia bonus points untuk pemilik kucing: Terdapat beberapa tanggungjawab asas yang boleh korang ambil untuk pastikan kucing korang tak menjadi gangguan kepada jiran-jiran – seperti menjaga kucing korang di bawah pengawasan yang betul bila biarkan ia keluar dan latihlah kucing korang tu. Juga, kadang-kadang tu jalan terbaik adalah korang biarkan je lah bila kucing jiran masuk kawasan korang. Tutup tingkap, pintu dan pagar untuk elakkan kucing liar dari masuk. Kalau korang sakiti kucing liar dengan apa cara sekalipun, korang dikira masih melanggar peruntukan dalam Akta Kebajikan Haiwan. Tapi, kalau rak kasut korang rosak atau kucing jiran menyerang korang dengan cakarnya, jangan teragak-agak untuk berbincang dengan jiran korang tentangnya."
"The lawsuit that made neighbourhood boom gates legal in Malaysia In recent years, crime incidences such as break-ins and snatch thefts have escalated tremendously over the years. The market is now on high demand for properties within a gated and guarded community (GACOS). And if there isn’t such facility to begin with, residents of the housing area would take upon themselves to organise some form of security. This includes fencing up the area, placing boom gates and a guard house at the main entrance. It showed effective results, as neighbourhoods who have had boom gates set up saw a significant drop of crime within just two years. But despite boom gates being a common structure in housing areas, they were surprised to find out that the rules on boom gates was a pretty grey area. The neighbourhood that established how grey the law was This was experienced by a few neighbourhoods around Petaling Jaya. In August 2013, Residents’ Association (RA) in the area received orders from the Petaling Jaya City Council (MBPJ) to take down the guard booths and boom gates in their area. As it turns out, out of the 181 RA, only 18 have applied to set up their guard booths. The rest were considered illegal. However, the RA’s continued to keep the boom gates up for their own safety. MBPJ tried to compromise with non-strata RA’s on this issue, by asking that the boom gates be lifted during the day so that public road remains accessible during the day. This is because under Section 46(1) of the Street, Drainage and Building Act 1974, you can’t put down obstructions, without permission from authorities. And under that same law, the police can physically remove the obstruction itself. [READ MORE : Strata title vs individual title - how does it affect Malaysian landowners?] As you can see, the legality of boom gates can get complicated. Even when they had approval to set it up, they had to open it during the day. Some of them even had their boom gates and barriers dismantled. In October 2013, residents in three PJ residences were surprised by a visit from MBPJ, who came to dismantle the boom gates as well as obstructions in the area. Due to this, residents are now wary about setting up their own security measures, as MBPJ has the last say on what is allowed. In the words of one RA’s president: “Residents Associations (RA) have always been worried about the legal repercussions of putting up boom gates for security purposes in many places,” said Taman Seputeh Residents Association president Dr Balaeswaran Poobalasingam to the Rakyat Post. But ever since Au Kean Hoe’s lawsuit to remove his neighbourhood’s boom gate, his court decision turned this grey area into a black and white matter. How boom gates became legal In the beginning when Au Kean Hoe moved in to D’ Villa Equestrian, there were already two boom gates and a guard house in operation. The residents unanimously agreed that those who do not pay the monthly fee for security and maintenance charge would have to open the boom gate themselves without the assistance of the security guard on duty. After hearing that, Au was okay with it and paid as told. He was then elected as part of the Residents’ Association (RA) and became the treasurer at one point in time. Everything went well until he fell out with the community and he eventually decide to stop paying for the security fee as the boom gates were a nuisance and an obstruction in law. However, he was the odd one out as he was the only one who did not pay for the security and maintenance charge so he had to do self-service entrance to the housing estate. He had to do it everyday including the times when his relatives come to visit his house which made him infuriated. One day, he just decided to drive through the boom gate until it was sufficiently bent so that his car could just pass through without having to leave the car and lift it up. He then decided enough is enough, and sued the Residents’ Association for an order to have the guardhouse and boom gates to be demolished. The Residents’ Association counter claimed, saying that he owes damages for the bent boom gate, overdue payment for security charges and to stop him from harassing the RA and the security guard when passing through the guard house. One man’s loss, every RA’s gain High Court dismissed Au’s claim, but to his surprise, the court allowed RA’s claim which includes a claim for damage to the boom gate and a restrained order to stop him from harassing the committee members and the security guard. He did not like the decision so he made an appeal to the Court of Appeal. Again, they stood by the High Court’s decision. Au was not happy with the results. He thought the Federal Court would be in his favour after all that he had gone through so he brought the matter to the highest court in Malaysia. The question of law he was arguing is that the guard house and boom gate is an obstruction under S46(1)(a) of the Street, Drainage and Building Act 1974. The five judges decided that having the boom gates at a housing area is not considered an obstruction in law as he was never once denied access at all. His complaint is that he is inconvenienced because he had to lift the boom gate himself. In short, this means that Au’s complaint is a complain of inconvenience and not of obstruction. Au’s suit against D’ Villa Equestrian Residents Association was ultimately dismissed by the Federal Court, and he achieved the exact opposite he went in to the fight in the first place. However, this case set a precedent where boom gates are now authorised structures under the Street, Drainage and Building Act 1974, the Town and Country Planning Act 1976, and the Local Government Act 1976. There would still need to be a negotiation with the MBPJ on regulations, but it’s finally decided: boom gates are legal."
"Is it safe for Muslims to consume boba with a foreign halal certificate? It’s no secret that bubble tea or, boba as it’s affectionally known now, is incredibly POPULAR. Malaysians seem to have no problem enjoying these chewy treats regardless of age, gender, race, or religion. However, as sweet as the boba business looks from afar, two boba milk tea franchises in particular have actually come under fire for the ambiguity surrounding their product’s halal status. In other words, Muslims in Malaysia may not able to actually consume such drinks. At the same time, there was an additional halal controversy involving the recent launch of a 0% alcohol beer. Let us spill the “tea"" on the controversies that has gotten everyone buzzing… What’s all the fuss actually about? So let’s start with the easy one first. In regards to 0% alcohol beer, JAKIM has already stated that anything containing the word “beer” will not be eligible for halal certification, regardless of whether or not it contains alcohol. This is due to guidelines prohibiting any products with “non-halal” names such as bacon or bak kut teh from getting Halal status in order to not confuse Muslims. However, things are less clear-cut when it comes to bubble tea, like how can milk, tea and tapioca balls be considered haram to begin with? Basically the fuss started when a Facebook user raised concerns that the famous Xing Fu Tang (henceforth herewith referred to as XFT) and The Alley outlets may not be halal certified. The user highlighted the fact that these franchises weren’t actually listed in the website of the Jabatan Kemajuan Islam Malaysia (JAKIM). The massive backlash whereby netizens were furiously commenting and even sharing the particular post prompted The Alley to release a statement. They clarified the they were actually still waiting for their halal certification from JAKIM, while Xing Fu Tang clarified that they are actually halal certified by Majelis Ulama Indonesia (MUI) which is an international Islamic body recognised by Jakim This now leads to another two questions... If it doesn’t contain pork, is it still okay to be consumed? Does a Halal certification from another country make it Halal in Malaysia? The first question is easy enough to answer. No alcohol or pork doesn't mean it’s Halal For our non-Muslim readers here, there’s a common misunderstanding that Halal means “no pork”. The actual definition is much more elaborate. So what halal means in Arabic is that it’s allowed under Shariah law. Malaysia has halal regulations under the Trade Description (Definition of Halal) Order 2011, which is synced with the Shariah law. What is defined as halal is: It shouldn’t contain prohibited animals or meat that isn’t slaughtered in the shariah way. Was not injured during slaughter and doesn’t contain najs (impurities) such as blood and feces Doesn't intoxicate you Does not contain human parts Is not dangerous to health Did not get in contact with any tools or surfaces contaminated with najs So for Muslims, the absence of a halal certificate is an issue because despite the ingredients specifying that it doesn’t contain pork or lard, there can still be doubts that there might be contamination during the manufacturing process. The purpose of JAKIM’s Halal certification is to ensure that the standards are kept throughout the manufacturing and logistics process, essentially from the factory to your mouth. This relates to the issue of certification from a different country as well. While JAKIM recognizes Halal certifications from foreign countries, it may pertain more to products that are manufactured and packaged in those countries This would be different for food outlets, which involves more factors such as preparation of products from scratch using raw materials. In fact, JAKIM has clarified that a premise will not be Halal certified unless it was certified by JAKIM or JAIN (state religious department) regardless of circumstance: ""Bahagian ini menegaskan bahawa premis makanan yang menggunakan bahan mentah atau ramuan yang telah dipersijilkan halal tidaklah bermaksud ia boleh memperihalkan premis makanan tersebut sebagai telah dipersijilkan halal. ""Melainkan hendaklah diperakukan halal oleh JAKIM atau Jabatan Agama Islam Negeri (JAIN) selaku pihak yang berautoriti dalam Pensijilan Halal Malaysia.” – JAKIM, in a statement on their official Facebook Page “This department emphasizes that eateries that use raw materials or ingredients that are Halal-certified doesn’t automatically imply that the eatery itself is Halal-certified Unless [they are] certified by JAKIM or the State Religious Departments, as they are the relevant authorities for Malaysian Halal certification.” – Translated by Asklegal As we can see, there is much more to the halal-ness of food, besides not having any pork and alcohol. In times where there can be discrepancies between the label and actual ingredients, it is understandable for Muslims to want to clarify any potentially misleading information. But sometimes, you may have to make that decision yourself Despite things being laid down in black and white, there is a grey area between what’s halal and haram. According to Kolej Universiti Islam Malaysia, under the interpretation of Shariah, there are two additional concepts to define food that’s neither halal nor haram: masbooh and makruh. Masbooh means that food that you doubt it’s halal-ness. The doubts could be from the manufacturer or the ingredients. As long as there are any doubts whatsoever, it would fall under masbooh. This is because touching something that’s haram could cancel your ablution for prayers, which is the Muslim ritual of cleansing yourself before praying. Makruh, on the other hand, is food that is technically not haram, but is strongly discouraged because it can encourage you to consume non-halal things. Muslims are generally encouraged to avoid anything makruh, simply because it exercises your self-control, making it easier to avoid anything haram in the future. While it is definitely more comforting to know that your food is certified by JAKIM, the concept of caveat emptor comes in whereby its on you as a consumer to be wary of discrepancies within a product, and its up to you to find out if the business is halal certified or not. Or if you’re okay with eating there regardless. In other words, if you’re in doubt, throw it out."
"What can you do if your landlord doesn't return your deposit, in Malaysia? It’s been a great couple of years in that bachelor pad of yours. At times your door gets stuck, your washing machine sounds like a thousand whales dying, and your landlord can be a bitttt erratic but it has been a great run nonetheless. As you are preparing to move out, you wrap all up all your duties as a tenant; cleaned the house, repaired all the small damages you caused. Then, you drop a line to your landlord asking for your two month deposit back. He says he is on holiday so you will get it when he comes back. You shrug and move on. A couple months later and your deposit is still unreturned. You are getting frustrated, your texts and calls go unreturned. You’re starting to think that you’re never getting your deposit back but...is there anything you can do about it? Well, before we do that, let’s look into what you should do when renting a house. You must sign a tenancy agreement Some of you may choose to live life on the edge and shake on a gentleman’s agreement. While 9/10 times that might work without issues, the tenth time might put a real wrench in you. Even if you’re not looking to get into a 20-page agreement for a simple house rental, you should always make sure that the some terms are clearly laid out such as: How long you are renting the place for How much is the monthly rent When do you have to pay the rent by How much the deposit is The above points are the bare minimum that you should have when renting a house. Even if the “agreement” is just a piece a paper you sign with the realtor, you should make sure that these terms are clearly laid out. In addition to that, a step further for the purposes of today’s article is to make sure that you clarify what your deposit is used for, when you would get it back, and what are the circumstances in which you might lose the right to get it back. For example, most Malaysians would be familiar with what is commonly known as the “2+1 deposit”. A 2+1 is not a term for burger Ramly double tambah cheese but it is actually a term to indicate that you would be paying two months’ deposit plus an additional month. The two months deposit would be used to safeguard the owner against any damage that you may cause to his house. For example, if you decide to thrash the house and abscond into the night, the landlord may use the two months deposit to repair the damage. The additional month (or sometimes half a month), is used as a utilities deposit. This safeguards the landlord against any unsettled bills that you may have with TNB, for example. Most times, the landlord would be entitled to forfeit your deposit if you have caused damage to the house that is not from normal wear and tear (this means normal damage like small scratches are alright but if you leave a 12-foot gouge in the door then he can forfeit your deposit) or if you have failed to pay your bills. However, do bear in mind that a forfeiture does not mean that your landlord can keep every penny of your deposit as of right. He can only forfeit as much as is necessary to rectify the damage or pay the outstanding bills. For example, if your deposit is RM3000 and the cost to repair the gauge is RM500 while your outstanding bills are RM200, your landlord must return you the balance RM2300. Now that we have gotten the basics out of the way, let’s look at what you can do if your landlord doesn’t want to return your deposit. The first option is to sue A savvy AskLegal reader would put two and two together and think that when there is an agreement and a breach of its terms, there would be an action for breach of contract. For you new folks out there, a breach of contract is lawyerspeak when someone refuses to act the way they agreed to in the agreement. In law, this gives you a right to sue them. However, many of you would realise that lawyers don’t come cheap. On top of paying for their fees, you also have to pay the court system things like filing fees for filing your documents and the sorts. This, in a lengthy dispute, can amount to tens of thousands. Unless your deposit outweighs your lawyer’s costs, you might just write it off as bad luck and return home to rant on Facebook. If you are curious to read more on how to sue someone in Malaysia, click here. Before you get dismayed and think that this article is of zero use, we would like to introduce you to method number two; the small claims procedure which, wait for it, doesn’t require a lawyer. Here’s a catch though... You can only use it if your claim is RM5,000 and below What the small claims procedure is is this – if your unreturned deposit does not exceed the sum of RM5,000, all you have to do is fill up some forms and hand it to the court for you and the court will then issue a summons for your landlord to appear before a judge. This procedure can be found in Order 93 of the Rules of Court 2012. We have written about it in detail in this article here but as a quick recap, here’s what you have to do: Make sure that your claim does not exceed RM5,000 Go to a local Magistrates Court (for an article explaining what a Magistrates Court is, click here) Fill in the form (you can ask for help from the court’s clerks or a lawyer) Attach any evidence you may have (this is not necessary but the more proof you have, the easier it is for the court to grant you what you are claiming for) Send a copy of the form to your landlord (make sure you do this via AR Registered post and keep a copy of the acknowledgement to prove to court that you have sent it) Show up at court on the fixed date (you are not allowed to be represented by a lawyer in a small claims procedure) Do bear in mind that your landlord is allowed to contest (basically fight or argue against) your claim. However, so long as you have all your evidence in order, you should have no problems getting the court to rule in your favour. If you’re confused about what counts as evidence, it’s basically anything to show the court that you paid the sums you are claiming for, it was paid as a deposit, and you have not done anything to warrant a forfeiture of that deposit. Usually this would take the form of your tenancy agreement (hint, hint), any bank transaction slips, and proof that all your bills are settled and/or the house is undamaged. Should the Magistrate agree that your landlord is not supposed to keep your deposit, he will be ordered to return it. If he refuses to comply with the court order, the court can even issue a warrant for his arrest or issue what is known as a writ of seizure and sale (which allows court officials to seize your landlord’s items and sell it off in order to pay what he owes you). [READ MORE: If someone borrows money and doesn’t pay you back, Malaysian law can help] We know that some of you may be groaning over the fact that the small claims procedure is only limited to claims of RM5,000 and below but it would seem like the small claims procedure is meant to make the court system more accessible and generally speaking, the larger the claim, the more difficult it is. At the end of the day, regardless of whether you are hiring a lawyer or tackling the DIY claims form, you must remember to do one small thing: Document everything. Every. Thing. To avoid situations where your landlord and you argue over whether you left that burnt mark on the counter, always remember to take pictures of your house when you first move in. Focus on defects and bring them to your landlord’s attention. Take pictures again as you’re moving out. Then, save everything to a cloud based storage drive so that your landlord and you can easily solve the whodunnit question if anything is damaged. Other than that, always remember to clarify how long it would take for your deposits to be returned after you move out. Logically speaking, the deposit for the condition of the house should be returned as soon as your landlord checks the house while the utilities deposit would be return as soon as your last month’s bill is cleared. Last but not least, it’s best to get everything down in writing; while unwritten contracts are enforceable, it’s always clearer in writing. [READ MORE: Is it safe to write your own DIY contract in Malaysia (or sign one)?]"
"You can't fine a cat owner in Malaysia because...there are no laws against cats There are basically two common types of animals that are kept as pets – dogs and cats. However, there are more than just 2 types of laws that we have here in Malaysia. Some laws are rather straightforward, while others tend to be just plain...weird. Previously, we wrote an article on some of the weirdest Malaysian laws that we’ve come across – as funny as this may sound, it is actually true and most of them can be found in the Minor Offences Act 1955. If you briefly checked out the Act, you’d find some pretty strange laws that were included in it, such as riding an elephant down the street or driving a pig to a public road is an offence. Perhaps, this has something to do with the fact that this law is pretty old and has never been updated since 1955. So, while we were looking at the Act, we realised something strange. There are laws mentioned in the Act for cattles, horses, pigs and even dogs for offences such as property damage and harming anohter person. But...there were actually no laws on cats! It’s because cats are useless (sorry) So to briefly explain what the Minor Offences Act 1955 is about, it specifies punishments for small crimes. And the specific part we’re looking at here is Section 9 of the Act that states as such: “Whoever being the owner or person in charge of any horse, cattle, sheep, goat or pig allows such animal to stray upon any public road or upon any public or private property shall be liable to a fine not exceeding one hundred ringgit in respect of each animal...” Basically, the Act states that any damage done by horses, cattle, sheep, goats or pigs on public/private property will be asked to pay a fine not more than RM100, or whatever the amount the judge in court considers fit. As we mentioned earlier, the Act has laws for dogs. But not just one Section, but three: Section 6: Dog running at a person – If the dog chases after a person, vehicle or other animal. Section 7: The responsibilities of a dog owner – If the dog causes harm to a person or damages property. Section 8: Letting the dog loose to attack or scare someone. [READ MORE: If your dog bites a robber in Malaysia, can you get sued or taken to jail?] With all these laws on dogs, there were none on the other most popular domestic animal – cats. So the question now is, if it doesn’t exist in the law, does this mean cats (and its owner) are immune from any laws? Perhaps this will be understood best with an explanation given to us by lawyer Fahri Azzat. Here’s what he had to say: I think cats were generally left out (from the Act) because they aren't exactly beasts of burden or beasts of hunt. They were kept purely for pleasure (and perhaps a bit of rat check). So little direct law is applicable to them. – Fahri Azzat via an email reply. In other words, it might have something to do with what cats are used for. Since they are mostly domestic animals, and do not really serve any purr-pose besides looking cute – they were not classified in the Act due to their lack of commercial use. So, does this really mean cats are free from any legal responsibilities, and you will have to start worshiping them from now? Not really, you can actually still sue the cat owner If it is a crime committed under Federal laws – in this case, under the Minor Offences Act, then you’ll be taken to court and would need to pay a fine if found guilty. But since cats are not listed in the Act, the authorities cannot charge the owner under the Minor Offences Act, but can file a lawsuit instead. To be much more precise, you can still sue a cat owner for property damage or physical harm caused by the cat. There are many different types of torts, but for cats, here are 2 examples: Private nuisance: Your neighbour’s cat enters your compound, poops all over the lawn and destroys your brand new shoe rack. Furious, you go over to your neighbour’s, asking him to compensate for the damage done by his cat, but he refuses to do so. Negligence: Your neighbour’s cat scratches you when you were trying to chase it out from your compound. You now need to get a rabies shot and you want your neighbour to pay for it. Basically, you can still sue a cat owner in these two circumstances. If you’re looking into suing someone for property damage or physical harm caused by his/her cat, here’s what Fahri had to say: A pet owner is liable for the damage his pet causes in tort under common law. So he can be sued in the civil courts for property damage caused by his cat. – Fahri Azzat, lawyer But the downside to this is, it would probably cost you a lot more to sue. And since suing may cost you a lot more money and is time consuming, some of you might be tempted to poison or pour hot water on the cat instead. But here’s a law that actually includes cats... Hurting the cat (or any other animal) will land you in jail There have been extreme cases of people poisoning their neighbour’s pets. If you think hurting the animal might stop it from coming into your compound, you will be held responsible under the Animal Welfare Act 2015. The Act basically regulates all activities involving animals via the Animal Welfare Board. “Animal cruelty” is defined under Section 29 of the Act as follows: “(1) Any person who— (f) causes, procures or, being the owner, permits any animal to be confined, conveyed, lifted or carried any animal in such manner or position as to subject such animal to unnecessary pain or suffering;” So, if you use a trap or poison any cat that finds its way into your compound, you will be classified as an animal abuser under the Act – Offenders will have to pay a fine between RM20,000 and RM100,000 and/or 3 years of imprisonment. In other words, you cannot “punish” the cat in any way as there are laws protecting it from being harmed. [READ MORE: These 5 laws from Malaysia's new Animal Welfare Act will make life better for animals] Here’s a bonus point for cat owners: There are a few basic responsibilities that you can take when it comes to making sure your cat does not become a nuisance to your neighbours – like keeping your cat(s) under proper supervision when letting it out and training your cat(s). Also, sometimes it’s best to just close an eye when your neighbour’s cat comes into your compound. Keep your windows, doors and gates locked to avoid stray cats from getting inside of your compound – If you hurt the stray cat in any way, you will still be offending the Animal Welfare Act. But, if your shoerack gets wrecked or your neighbour’s little furry friend attacks you with the claws of Hades, do not hesitate to take a meow-ment to talk to your neighbour about it."
"Got a legal problem? Here's how to find the right type of lawyer in Malaysia You’re looking around for a lawyer. But when you type ‘lawyer’ into Google, you’ll find that they come under different names: advocate, barrister, attorney, and solicitor (just to name a few). And you might not be sure which one applies to your situation. You don’t know if your problem is civil or criminal, or even know what those words mean To help you start with finding the right one, we’ve broken them down into different categories and the areas of law that they cover. 1. The litigator – to sue or get sued Litigation is when one party sues another party to defend or enforce their legal rights. A litigation lawyer protects your interests when there is a dispute, whether it is civil or criminal. They will work to maximise your chances of getting a favourable outcome. A litigation lawyer will also prepare you for self-representation. This is when you need to be present in court, maybe for a cross examination. They will brief you depending on your needs and circumstances of the case, as well as what to reveal and what to conceal to the opponent parties. There are mainly two areas that are covered by litigators : Civil cases A civil lawyer will have to be familiar with a wide range of laws, as a civil lawsuit covers many different areas such as personal injury, employment, family, finance, immigration and landlord/tenant agreements. But the main concern is usually the recovery of money or reclaiming property on your behalf. They know how to make your case look more favourable for your side. For instance, if you were physically injured by another party, a civil lawyer will advise you to take photos of your injuries as soon as possible. This is because he knows that in civil disputes, the worse an injury looks, the stronger your case will be. Your lawyer can advise you on how much money certain injuries and emotional strain can be worth in a case like this. This means that you won’t have to settle for a lesser payment than what you deserve. Criminal cases The process of criminal litigation is different. Their clients are those accused of a crime (wrong doer) or the accuser (person making the police report). There are two types of criminal lawyers: prosecutors and defense lawyers. Prosecutors work on behalf of the accuser and present their case against the defendant. Defense lawyers, on the other hand, represent the accused and work to protect his client's interests. As a defendant, you will have two choice of defense lawyers. If you can afford it, you can hire a private defense lawyer for your case, if you believe that this will ensure the best outcome for your case. If not, you can look for a public defender. Public defenders are defense lawyers that work for the government, and represent those who cannot afford to hire private counsel. Whether you have a public defender or private lawyer, their goal is the same: they will argue for your behalf in court and advise the best way to go in order to reduce your punishment/fine. In fact, going in and out of court can be an emotionally taxing experience, so your lawyer will help you prepare mentally and emotionally for what may happen during a trial. 2. The conveyancing lawyer – for your property needs Are you planning on buying or selling property and you are unsure of the procedures involved? This is where a conveyancing lawyer comes in. They will advice you on going through the process of buying or selling a property, rentals, land joint ventures and securing bank loans. Property transactions almost always involve a mountain of paperwork to handle, as well as dozens of people to liaise with, from mortgage brokers to real estate agents. The average person might not be prepared to deal with all these. Conveyancing lawyers probably already know most of the people you have to deal with, and how best to deal with each of them. Their clients are usually those who deal with large transactions such as banks, property buyers and sellers, land owners and developers. But they also serve individuals looking to buy a single home or apartment. Conveyancing lawyers can either be on the sellers or the buyers side, and also serve as guarantors during transactions. For instance, let’s say Ali wants to sell his house to Govin. Instead of Ali and Govin just shaking hands and exchanging money, there would be paperwork to be resolved and large sums of money transferred to confirm the change of ownership. Their lawyers will then work to ensure that the right amount of money is transferred, and that all the necessary papers are signed and exchange of ownership is confirmed. 3. The commercial lawyers – for your business deals A commercial lawyer deal with issues relating to business transactions. This includes drafting client agreements, negotiating employment contracts or writing purchase agreements. Disputes can come up throughout the transaction, and they can help you handle it or even avoid it altogether. The branches of commercial law mainly deal with business and financial transactions which include corporate law, intellectual property law and tax law. Corporate law lawyer Some might say that commercial and corporate lawyers are the same, but they cater to different levels of businesses. For example, commercial lawyers advise matters for small businesses. However, if you own a corporation, you’ll likely find yourself consulting mostly with a corporate lawyer. Corporate matters includes shareholders disputes, mergers, compliance issues and lawsuits. The corporate lawyer focuses on securing your transactions and negotiations. They ensures that all the transactions complies by the law, and will warn you of any potential breaches your company might do. Intellectual property lawyer In this digital age, copying and sharing information illegally is much easier now. If you’re a digital artist, chances are if you put up your artwork online, it can be surprising to see your artwork appear on a T-shirt or an album cover without your permission. Worse, not only are you not paid for it, you aren’t even credited anywhere. All that hard work, and someone is reaping all the benefit. An Intellectual Property (IP) lawyer will help you to deal with your design being reused or copied without your consent or compensation. They will show you how to protect your work, and how to bring a case against those infringing your rights. But IP is not just related to creative artworks such as designs, patterns or songs. They also work on matters relating to patents for medicine ingredients, or even trade secrets on how your restaurant prepares its food (the recipes). In Malaysia, Intellectual Property Corporation of Malaysia (MyIPO), is the official body that provides protection for an IP, and responsible for the administration and development of an IP. An IP lawyer will help deal with MyIPO to secure the rights of your creation, as well as help you in cases where your copyrights is infringed. Tax law lawyer ""I didn't know"" is not an excuse if you accidentally infringed a tax law. Tax laws change frequently and it is your responsibility to keep up with it. Hiring a tax lawyer can be your insurance against ignorance, and keep your business far away from a dreaded audit. An audit happens when the income tax officer raids your premises IF they discover suspicious financial transactions. The thing is, sometimes the suspicious transactions is just mistakes in paperwork on your side, instead of any attempt to evade the law. So, the tax lawyer will ensure that the mistakes are avoided to prevent any fine imposed on you If you plan to start a company with employees, then a tax lawyer will guide you on issues related to withholding taxes and more. You might also enjoy tax relief or deductions that you wouldn’t have known when a tax lawyer managing your income tax. For individuals, tax lawyers use charitable deductions and various tax planning structures to reduce the burdens of the total income taxes that you are required to pay. Remember, the government has its troops of tax law and procedure specialists, and they won’t be shy to throw the book at you to recover unpaid taxes. 4. The human rights lawyer – if your rights have been violated As its name suggests, a human rights lawyer will help to investigate, assess, and defend you in matters relating to human rights. They can help you if you’ve been discriminated against based on your race, religion, gender or disability. For example, an employer can't decide to not hire you based solely on race or religion.It can also involve things such as a dress code at work. Your employer might not allow you to wear something that covers your head, and this rule applies to everyone at the company. But if you wear, say, a turban or burqah for religious reasons, they might have to let you dress differently. In Malaysia, The Human Rights Commission of Malaysia or SUHAKAM is the national human rights institution to promote human rights education, advise on legislation, and conduct investigations into human rights violations. In general, human rights lawyers tend to be passionate advocates of human rights issues, and some have become prominent media figures such as Ambiga Sreenevasan. [[ READ MORE: Is child marriage actually legal in Malaysia? ]] 5. The sports lawyer – for finalizing a sports deal This is a very new area of law in Malaysia, but popular in other countries with a developed sports scene like the US, Australia and UK. Sport lawyers are involved in the legal aspects of sports which includes sponsorship contracts, athlete’s welfare and rules of the sport. Their clients are companies looking to use sports as a marketing tool or advertisements for official sponsorship of stadiums. For instance, if you hire a corporate attorney, will they have experience negotiating with sports leagues and league business models? Do they know the importance of having date controls over your stadium or arena? A typical corporate lawyer doesn’t always understand the politics involved with everyday league affairs, and therefore, cannot advise on how to draft the league’s governing documents. Like most areas of law, the sports law practice is unique and takes specific industry knowledge to avoid future problems and misunderstandings. The right lawyer can make your experience a good or a bad one Once you've made the decision to hire a lawyer, the next step is to pick a specific lawyer to handle your legal matter.Choosing a lawyer is like choosing any product or service, where the wise consumer conducts thorough research beforehand. Getting a second or even third opinion is important, to make sure you are making the most informed decision. Lawyers will even recommend their clients to seek a second opinion. But always keep in mind that the most expensive lawyer does not necessarily equate with the most qualified lawyer."
"Korang boleh dipenjara kalau cetak duit palsu. Tapi kalau dapat, nak bagi pada siapa? Rasanya, ramai di antara kita yang dah tengok satu video viral, pasal sorang peniaga online ni kantoi kat FB live. Kisahnya, dia ni nak promosikan produk-produk dia, sambil tunjukkan berkepuk-kepuk duit RM100 atas meja. Tapi tiba-tiba, dia terambil pulak ‘duit yang masih tak dipotong’ dan tak bercetak di bahagian belakang. Pecahlah tembelang, sebab rupa-rupanya semua tu duit palsu! (Boleh tengok imej atas). Sebenarnya, ni bukan kali pertama kita dengar kes duit palsu ni dan antara kes terbaru, bila polis baru-baru ni menahan dua orang beradik di Kemaman, Terengganu sebab mencetak duit palsu RM100. Pada awal tahun ni pula, ada seorang bakal pengantin ni sanggup cetak duit palsu, sebab terdesak nakkan duit. Disebabkan kes macam ni selalu je jadi, nampaknya ia juga menimbulkan tanda tanya kepada kita semua. Dan mungkin antara soalan yang muncul dalam pemikiran kita… Boleh ke kita cetak duit macam tu je? Jawapannya – TAK BOLEH. Sebabnya, berdasarkan Akta Bank Negara 1958 (dipinda 2009) dah dinyatakan dengan jelas yang – tak ada sesiapapun dibenarkan mencetak atau menghasilkan semula duit Malaysia tanpa kebenaran Bank Negara Malaysia (BNM). Seksyen 27A, Akta ni menyatakan (tiada terjemahan rasmi, diterjemahkan oleh Asklegal): “Kecuali dengan kebenaran Bank, tiada seorang pun boleh, dalam apa-apa saiz, skala atau warna, menggunakan apa-apa gambar atau apa-apa lukisan atau reka bentuk yang menyerupai apa-apa wang kertas atau wang syiling atau sebahagiannya, dalam mana-mana iklan atau pada apa-apa barang dagangan atau produk yang orang itu mengeluarkan, menjual, mengagih atau mengedarkannya. Kalau korang melanggar Seksyen 27A ni, korang boleh dihukum di bawah Seksyen 51(6), yang jika sabit kesalahan boleh didenda sehingga tak lebih RM5,000. Jadi, macam mana nak dapatkan kebenaran dari BNM ni? Sebenarnya, BNM ada keluarkan Garis Panduan Penghasilan Semula Mata Wang Malaysia yang senaraikan beberapa prosedur dan syarat-syarat yang kena dipatuhi. Antaranya, sesiapa yang nak hasilkan semula duit Malaysia (kertas atau syiling) untuk tujuan pengiklanan atau sebagainya, diorang kena hantar permohonan bertulis kepada BNM. Diorang juga kena lampirkan sampel duit kertas/syiling yang nak dihasilkan tu bersama surat permohonan. Selain tu, ada juga beberapa syarat yang korang kena ikut masa menghasilkan semula duit tu, antaranya: Saiz duit kertas tak boleh sama dengan saiz asal. Penghasilan semula mestilah tak mengganggu imej YDP Agong. Tandatangan Gabenor dan frasa ""Wang Kertas Ini Sah Diperlakukan Dengan Nilai"" pada duit tu mesti dihapuskan dengan lipatan, percetakan lebih atau beberapa kaedah lain. Ia mesti dicetak di satu bahagian sahaja supaya tak nampak macam duit tulen. Perkataan ‘SPECIMEN’ atau ‘CONTOH’ mesti ada di atas kertas duit penghasilan semula, termasuk juga untuk paparan di media elektronik/internet. Tapi, tu tak bermakna yang BNM akan luluskan permohonan korang walaupun korang dah ikut semua syarat yang ditetapkan. Sebabnya, BNM masih lagi akan tolak permohonan tu kalau tujuannya melibatkan: Alkohol, rokok atau apa-apa yang sewaktu dengannya Perkara yang tak senonoh, macam keganasan atau pornografi Kandungan bersifat politik Melanggar kepentingan awam Nampaknya, kalau nak dibandingkan dengan kes viral tu, dia cuma ikut satu peraturan je – tak cetak bahagian belakang duit palsu. Hal ni seterusnya membawa kita kepada… Korang boleh dipenjara kalau cetak atau simpan duit palsu Kes duit palsu ni bukanlah jenayah ringan dan hukumannya dah diperuntukkan dalam Kanun Keseksaan, dari memalsukan, memiliki, sampailah menggunakannya. Sebagai contoh, Seksyen 489A, Kanun Keseksaan dah memperuntukan hukuman penjara sampai 20 tahun dan denda kalau korang terlibat dalam aktiviti memalsukan duit. Selain tu, kalau korang menggunakan duit palsu tu, sedangkan korang tahu yang ia palsu, korang boleh disabitkan di bawah Seksyen 489B, Kanun sama yang memperuntukkan (tiada terjemahan rasmi, diterjemahkan oleh Asklegal): Sesiapa yang menjual kepada, atau membeli atau menerima daripada, mana-mana orang lain, atau mengedar atau menggunakannya sebagai tulen, apa-apa yang palsu atau mata wang palsu atau not bank, mengetahui atau mempunyai sebab untuk mempercayai yang sama dipalsukan atau palsu, akan dihukum dengan penjara selama tempoh sehingga dua puluh tahun, dan juga akan didenda. Malah, korang juga boleh dihukum di bawah Seksyen 489C kerana simpan duit palsu, sedangkan korang sedar dan tahu yang ia adalah palsu: Sesiapa yang memiliki dalam milikannya apa-apa yang palsu atau mata wang palsu atau not bank, mengetahui atau mempunyai sebab untuk mempercayai yang sama dipalsukan atau palsu dan bercadang untuk menggunakan sama seperti yang tulen atau yang boleh digunakan sebagai tulen, hendaklah dihukum dengan penjara untuk tempoh yang boleh sampai sepuluh tahun. Maknanya di sini, kesalahan menggunakan atau memiliki duit palsu, hanya boleh didakwa kalau korang sedar dan tahu yang duit tu palsu. Tapi, kalau korang dah sedar yang korang dapat duit palsu, apa yang korang boleh buat? Korang kena cepat-cepat buat laporan polis Inilah langkah yang paling disyorkan bila korang dapat duit palsu, selain dari panik atau simpan je duit palsu tu. Malah, BNM juga ada bagi panduan yang korang boleh buat kalau dapat duit palsu: Lambatkan orang yang bagi korang duit palsu tu dan perhatikan rupa parasnya, termasuk dengan siapa dia datang dan apa nombor pendaftaran kenderaan diorang. Jangan tulis, potong atau edarkan duit palsu Kendalikan duit tu dengan terhad (contoh: korang boleh masukkannya dalam sampul atau plastik). Tulis segala maklumat yang korang dapat seperti – macam mana boleh dapat, siapa yang bagi, di mana dan bila korang dapatnya. Bawa duit palsu tu ke balai polis terdekat dan serahkannya kepada pihak polis, lepas buat laporan. Selain tu, korang juga kena tahu yang BNM tak terima duit palsu dan ia juga tak boleh diganti! Berhati-hati, dan persiapkan diri korang dengan pengetahuan Cuba korang bayangkan, korang ni peniaga, tapi tiba-tiba, ada pulak orang bagi duit palsu kepada korang. Dah la korang rugi, korang juga dapat masalah hasil tindakan jenayah orang tu. Walaupun pepatah ada kata – “Malang tu tak berbau”, tapi tak salah untuk kita berwaspada dan berjaga-jaga kan? Dan antara yang korang boleh rujuk adalah panduan terbitan BNM untuk mengesan ketulenan duit Malaysia. Antaranya, duit kertas tulen ada cetakan intaglio atau kesan cetakan di beberapa bahagian duit yang ada rasa timbul masa disentuh. Contohnya macam, potret YDP Agong dan perkataan “Bank Negara Malaysia”. Selain tu, kalau kita lihat duit di bawah cahaya – potret watermark YDP Agong ada kesan 3D dan nombor nilai duit tu pun jelas kelihatan di bawahnya. Tapi kitorang tak dapatlah nak beritahu semuanya secara terperinci, dan korang boleh klik sini atau di sini kalau nak baca panduan dari BNM. Apa-apa pun, korang semua berhati-hatilah dengan keadaan sekeliling dan jangan leka sangat bila dapat duit terus masuk dompet. Cuba korang tengok dulu duit tu baik-baik, dan kalau rasa lain macam je, cuba kenal pasti ketulenan duit tu, berdasarkan panduan BNM."
"Syarikat Sdn Bhd wujud hari ni, sebab seorang tukang kasut disaman pada tahun 1893 [Click here for English version] Bila korang bangun pagi, produk apa yang korang selalu gunakan? Apa yang pasti, ada di antara produk tu yang diperbuat atau diimport oleh syarikat Malaysia yang ada perkataan “Sendirian Berhad” (Sdn Bhd). Mesti korang pernah tertanya-tanya: Apa makna Sdn Bhd ni? “Sendirian Berhad” bermaksud syarikat tu milik persendirian (Sendirian), dan mempunyai apa yang dikenali sebagai “liabiliti terhad” (Berhad). Perkara ni datang dari kenyataan bahawa mana-mana syarikat dengan “Berhad” dianggap sebagai “orang” oleh undang-undang. Eh kejap. Macam mana pula syarikat boleh jadi orang? Dalam undang-undang syarikat, perbadanan (corporation) adalah apa yang kita panggil sebagai entiti undang-undang yang berasingan (separate legal entity). Pada asasnya, syarikat dianggap sebagai “orang” dalam undang-undang dan ia ada hak dan liabiliti tersendiri. Sebaliknya, “liabiliti terhad” adalah konsep yang menjadikan pemegang saham syarikat “Berhad” tak bertanggungjawab terhadap hutang dan obligasi syarikat. Liabiliti maksima diorang adalah terhad kepada berapa banyak duit yang diorang bayar untuk beli saham diorang dalam syarikat – dan inilah dia di mana ‘Berhad” tu berasal. Kalau korang rasa nak tahu lebih banyak lagi tentang hal ni, maklumat terperincinya ada dalam artikel kitorang sebelum ni: [BACA LAGI - If a Malaysian company that owes you money goes bankrupt, can you sue the boss to get it?] Entiti undang-undang berasingan pula adalah peratura lama yang masih digunakan dalam undang-undang syarikat kita sampai sekarang ni. Seperti mana yang dinyatakan dalam Seksyen 20, Akta Syarikat 2016: Sesuatu syarikat yang diperbadankan di bawah Akta ini ialah suatu pertubuhan perbadanan dan hendaklah – (a) mempunyai keperibadian undang-undang yang berasingan daripada keperibadian anggotanya; dan (b) terus wujud sehingga syarikat itu dikeluarkan daripada daftar. Tapi ada cerita di sebalik macam mana peraturan sebegini datang. Walaupun kita ada peraturan, tapi peraturan taklah selalunya difahami oleh semua orang, bahkan oleh hakim-hakim sendiri. Dan hal inilah yang sampai membuatkan berlakunya pertikaian pada tahun 1893 – dalam kes Aron Salomon v Aron Salomon and Company, Limited. Aron Solomon, si tukang kasut Aron Solomon adalah seorang rakyat UK, yang berdagang kulit dan pembuatan kasut untuk jualan. Dia ni jenis yang ada perniagaan keluarga, dan perniagaannya dah lalui turun naik. Tapi, bukan mudah nak sara isteri, dengan 5 orang anak. Walaupun macam tu, Aron Salomon dapat uruskan perniagaannya tu sampai berjaya dan bolehlah dia tampung keluarganya dan buat modal perniagaan. Lepas tu, dia ambil keputusan nak bentuk syarikat dengan liabiliti terhad oleh saham bersama keluarganya pada akhir Julai 1892. Akta Syarikat 1862 masa tu, perlukan sekurang-kurangnya 7 orang untuk memiliki sebuah syarikat bersama, jadi dia ada cukup ahli keluarga untuk buat macam tu. Lepas semua kerja urusan rasmi dah selesai, maka lahirlah – “Aron Salomon and Company, Limited” Tapi, beberapa urus niaga lepas tu dah menimbulkan kekeliruan. Ringkasnya, Aron Salomon dah jual perniagaannya kepada “Aron Solomon and Company, Limited” – yang mana boleh dilakukan kerana konsep entiti undang-undang berasingan yang kita dah bincang di awal tadi. Mesti korang keliru kan? Nak lebih faham, siapa miliki siapa, cuba tengok di sini: Ada dua “orang” – Solomon dan “Aron Salomon and Company, Limited” (kitorang akan panggilnya sebagai “Syarikat” je lepas ni) Salomon + saham keluarganya sendiri dalam Syarikat Salomon juga ada perniagaan barangan kulit dan kasut Salomon jual perniagaan kulit dan kasutnya kepada Syarikat En. Salomon (orangnya, bukan syarikat) dapat saham istimewa dari Syarikat yang disebut sebagai ""debentures"" sebagai balasan untuk perniagaan kulit dan kasutnya. Debentures ni istimewa sebab sesiapa yang memilikinya akan dapat keutamaan terlebih dulu dari semua pemegang saham dan pemiutang untuk dapat duit diorang balik kalau Syarikat tu bankrap. (Ini penting untuk apa yang akan jadi seterusnya) Tapi sayangnya, tak ada yang kekal selamanya Menggunakan debentures sebagai cagaran, Aron Salomon dapatkan pinjaman dari seorang lelaki bernama Edmund Broderip, dengan kadar bunga 8 peratus. Tapi disangkakan panas sampai ke petang, rupanya hujan di tengah hari. Sebabnya, berlaku pula kemelesatan dalam jualan kasut, sampai buatkan Salomon gagal bayar hutang kepada Broderip. Jadinya, pada September 1893, hanya setahun lebih Syarikat lepas disatukan, “Aron Salomon and Company, Limited” dah dilikuidasikan (liquidated) untuk bayar balik hutang-hutangnya. Kalau korang tak biasa dengar perkataan dikuidasikan ni, ia sebenarnya bermaksud kesemua barangan milik syarikat dijual untuk membayar hutangnya, dan lepas tu syarikat ini tak akan wujud lagi. Masalahnya bermula di sini. Seorang pelikuidasi (liquidator) dah dilantik oleh pemiutang untuk mengendalikan hutang dan memastikan pemiutang dapat balik duit diorang. Bagaimanapun, banyak jumlah hutang yang masih belum terbayar. Ingat lagi dengan “debentures” yang Salomon ada? Salomon lepas tu tebus debentures-nya (yang bagi keutamaan kepadanya) dan bayar balik hutang kepada Broderip, dengan selesaikan pinjaman tu. Akhirnya, lepas tu cuma ada baki £1055, sedangkan pemiutang lain masih kena dibayar balik dengan jumlah keseluruhan £7733. Tak puas hati dengan keadaan tu dan nak balik duit diorang, pemiutang yang masih tak dibayar dapatkan pelikuidasi tadi untuk saman Salomon atas nama Syarikat. Diorang mendakwa debentures tu dikeluarkan untuk menipu pemiutang, sedangkan duit yang pergi ke Broderip dan Salomon sepatutnya dibayar kepada pemiutang yang masih belum dibayar. Dari sinilah, benda tak baik jadi kepada Salomon bermula. Tuntutan tu dah dirayu… sebanyak 2 kali Untuk kali pertama, kes ni dibicarakan di Mahkamah Tinggi. Hakim masa tu setuju dengan pelikuidasi dan kata yang Salomon cuma buat Syarikat supaya dia boleh jalankan perniagaannya dan dapatkan semua keuntungan tanpa ambil risiko. Diorang percaya yang Salomon dapat debentures tu melalui penipuan – bila mana pelikuidasi menuduh Salomon jual perniagaan jualan kulit dan kasutnya tu pada harga yang sangat tinggi. Jadi, Salomon lepas tu dah diperintahkan untuk bayar pemiutang dengan duitnya sendiri. Salomon rasa tak puas hati dengan tuduhan tu dan buat rayuan kes. Tapi ia cuma sia-sia. Mahkamah Rayuan pun fikir yang Salomon dah menyalahgunakan keistimewaanya memiliki liabiliti syarikat terhad. Diorang kata yang dia menyalahgunakan nama ahli keluarganya untuk memenuhi keperluan 7 orang pemegang saham, jadi dia bolehlah buat syarikat di bawah kawalannya, sementara dia bersembunyi dari bayar hutang kepada pemiutang. Mahkamah Rayuan kemudiannya juga memerintahkan Salomon supaya bayar hutang Syarikat. Tapi ada satu lagi rayuan yang dia boleh buat, iaitu ke mahkamah tertinggi UK (Supreme Court) yang dahulunya dikenali sebagai House of Lords, sebelum keputusan akhir diputuskan dan Salomon dah mestilah dapat masalah besar kalau kena bayar hutang Syarikat yang banyak kepada pemiutang. Dia bertuah, bila didapati yang Mahkamah Tinggi dan Mahkamah Rayuan dah melihat undang-undang secara salah. Salomon dapat keadilannya pada tahun 1896 Banyak betul kita dah bincang pasal kes ni, tapi hakikatnya, apa yang jadi adalah bila mana hakim-hakim dalam Mahkamah Tinggi dan Mahkamah Rayuan tak memahami undang-undang dengan betul, dan diorang juga datang dengan kesimpulan yang salah. Kalau korang ingat dari awal, Mahkamah Rayuan dah buat kesimpulan yang Salomon hanya menggunakan ahli keluarganya sebagai boneka untuk memenuhi keperluan 7 pemegang saham, dan ada tuduhan mengatakan nilai perniagaan kulit dan kasutnya yang tinggi perlu disiasat. Mahkamah Agung dapati bukti menunjukkan yang keluarga Salomon tahu apa sebenarnya yang berlaku dan setuju nama diorang digunakan. Apa yang lebih penting, Akta Syarikat 1862 pada masa tu tak anggap aturan macam ni melanggar undang-undang. Pasal harga tinggi untuk perniagaan kulit dan kasut, harga tu sebenarnya tak penting, sebab selagi Syarikat tidak dibohongi dan bersedia membayar harga, maka tidak ada penipuan. Dari situ, Mahkamah Agung memutuskan yang “Aron Salomon and Company, Limited” memang “orang” berasingan, dan ia sendiri bertanggungjawab untuk hutangnya, bukannya Salomon. Ia mungkin kedengaran adil dan baik untuk Salomon, tapi macam mana dengan pemiutang yang terpaksa terima – diorang menanggung kerugian wang yang banyak? Pada ketika ni, mungkin korang akan bertanya… Kenapa pemilik syarikat dibenarkan untuk menghadkan liabiliti diorang? Bila orang buka syarikat, diorang selalunya akan laburkan modal untuk jalankan syarikat tu. Jumlah modal tu pula tak dapat ditentukan sangat, tapi kebanyakannya jumlah duit tu bukan semua orang boleh keluarkan macam tu je. Di sinilah di mana syarikat dengan liabiliti terhad datang. Ada yang kata – Sdn Bhd ni macam polisi insurans. Contohnya, korang perlukan RM200,000 untuk bentuk satu syarikat dengan kawan korang. Korang berdua boleh kumpulkkan duit bersama-sama untuk tu. Dan kalau ada masalah nanti, korang cuma akan hilang duit yang korang peruntukkan untuk syarikat (jumlah duit yang korang sanggup risikokan), tak lebih dari tu. Kalau korang dipaksa keluarkan seluruh modal sendiri untuk tanggung kerugian, korang mungkin akan habiskan segala simpanan korang dan jadi bankrap. Lebih penting lagi, kalau timbul masalah serius, korang dan kawan korang (rakan niaga) mungkin kena bayar hutang gunakan wang simpanan dan mungkin juga terpaksa jual rumah dan kereta. Kalau macam itulah risikonya nak buka syarikat, maka tak akan ramailah yang akan buka syarikat. Dengan hanya ada beberapa buah syarikat, dah pastilah akan bagi kesan ekonomi dan peluang pekerjaan secara keseluruhannya. Untuk selesaikan masalah ni, penggubal undang-undang buat keputusan untuk bagi jalan kepada korang, dengan pastikan kalau perniagaan pertama korang gagal, korang tak payah bayar hutang yang banyak tu dari poket sendiri. Jadi itulah sebabnya syarikat juga dikenali sebagai “orang”. Ia adalah cara untuk mengendalikan perniagaan korang, sambil memastikan kalau ada benda tak jadi seperti yang dirancangkan, simpanan dan harta peribadi korang taklah jadi taruhan. Inilah sebab utama kenapa sesetengah orang lebih suka tubuhkan syarikat Sdn Bhd, dan bukannya pemilik tunggal atau perkongsian. [BACA LAGI - Which Malaysian business entity should you set up for your business?]"
"To protect the Orang Aslis, the Malaysian Government sued... itself?  Note: This article was originally written in July 2019, and updated in June 2021. As Malaysians, most of us love durian but did you know that your love for durians may be depriving the Orang Asli of their customary land (Tanah adat)? In case you haven’t heard about the thorny dispute between a durian plantation company and the Temiar Orang Asli tribe, here’s a brief background. The tribe has been fighting against commercialised logging and land encroachment for 7 years involving the durian plantation company. Until this year, when the Federal Government decided to step in to sue the Kelantan State Government due to the loopholes in their laws that don't protect the Orang Asli communities in Kelantan. The requirement for State Governments to protect their indigenous peoples actually came from an earlier lawsuit that happened in 2002, where the Selangor government lost a suit against the Temuan tribe for trespassing their customary land. This became a landmark case that is still referenced till today within Malaysian courts. We’ll briefly cover the details at the end of this article, but let’s start with the case of the Temiar tribe and the durian company... It started when the durian company sued the Temiars For many years, the Temiar community in Kelantan has had their way of life interrupted by loggers, who often encroach on their land. After putting up with these practices for a while, the straw that broke the camel’s back was a project by a company called M7 Plantation Berhad, a company setting up a “Durian Valley” project in Gua Musang, Kelantan. The Temiar tribe in Pos Belatim, Kelantan started setting up blockades to stop logging companies from encroaching their land, even at the cost of preventing their own villagers from getting access to clean water or urgent medical care. This blockade got quite a lot of media coverage, and that coverage only increased when M7 Plantation Berhad started tearing it down. Not just that, the company also sued the Chairman of the Jaringan Kampung Orang Asli Kelantan for illegally putting up the blockade. According to M7 Plantation, they had a permit from the Land Use Permit granted to them from the Kelantan government in 2008. However, their suit was thrown out by the High Court of Kota Bharu based on technicalities. M7 Plantation Berhad failed to bring forth proof that the Kelantan Government or its agents gave them permit to conduct any kind of commercial activity, including logging or planting durian trees. With that judgment, the Temiar Orang Asli had won the case and they’re now legally allowed to put up the barricade to stop loggers from coming in. But this wasn’t the only result from the lawsuit. The attention given to this case highlighted a loophole in the Kelantan State Laws that didn’t recognize customary land rights for the Orang Asli of Kelantan. The Federal Government took notice and…. The Federal Government decided to sue the Kelantan government The durian lawsuit brought to light that Kelantan does not have any customary rights for their natives. This makes it hard for the Orang Asli living there to establish any legal rights over their customary land as there aren't any to begin with. “In Kelantan customary land for Orang Asli does not exist. It is not found in the state land laws and it has never been gazetted as such” said by PAS Secretary- General, Takiyuddin Hassan to Free Malaysia Today. Earlier this year, the Federal government has decided to file a suit against the Kelantan government for failing to recognise customary land rights for the Temiar tribe and other aborigines within their state. So as a brief explaination, there are actually two governments in Malaysia: State Government (Dewan Undangan Negeri) – Creates and enforces laws within a particular state Federal Government – Creates and enforces laws for the entire country The Federal Government has the power to make and govern laws made under the Parliament whereas the State has power over laws made during Legislative Assemblies. The Federal Government’s powers or decision can most definitely affect the State government if there are many discrepancies found in any State laws because the Federal government has bigger law making powers as compared to the State Government. So when the Federal Government took the Kelantan Government to court, it was, in a way, suing itself. But why can’t the Federal Government just force the Kelantan government to change their laws instead of suing them? Well, they can technically ask the State Government to come up with a law that protected the Orang Asli, but it would take some time – meaning that the Temiar community could face another trespassing issue in the near future. According to Attorney-General Tommy Thomas (who filed the lawsuit), the purpose of the lawsuit was to give legal recognition of the Temiar’s land rights. and to provide an injunction (a legal order to stop something) to prevent other parties from trespassing on their land in the future…until Kelantan fixes the loophole. The Kelantan State government is looking to strike out the suit and the hearing would be held on the 21st of July 2019. Update on 3 June 2021: The Court of Appeal has ruled that the Federal Government has no legal standing to sue on behalf of the Temiar Orang Asli. The judge stated there are no provisions in the Federal Constitution that allowed the Federal Government to do so. However, there is nothing stopping the Temiar tribe from suing the Kelantan government. But before this case happened, there was another influential case where the Temuan tribe sued the Selangor government. In 2002, The Temuan tribe went up against the Selangor government Just to prevent any confusion, our earlier points were about the Temiar tribe in Kelantan. This point is about the Temuan tribe in Selangor. It all started when the Selangor State government encroached onto the Temuan tribe land to build the Nilai-KLIA highway that links to the Kuala Lumpur International Airport. They were told to vacate within 14 days and any retaliation would result in them being forcibly removed. Many of the tribesmen’s crops and dwellings were destroyed and they were paid compensation for the destruction. But here’s the thing, while they were paid for their destroyed crops and homes, they weren’t actually paid for the land itself. The Selangor authorities insisted that the Temuan has no legal right over the land even though they’ve been living there for over a century. The Temuan disagreed and, with the help of the Centre for Orang Asli Concerns and the Bar Council, got a team of lawyers to represent them on a pro-bono basis and sued the Selangor State Government. Without going into every detail of the case, the main point of contention came down to two laws – The Land Acquisition Act 1960 and the Federal Constitution. Essentially, the problem faced by the Temuan was that they weren’t able to actually prove that the land belonged to them; since it was just passed down over the generations according to their customs. This is commonly referred to as ‘customary land’. However, the Land Acquisition Act actually included customary land in their definition for ‘land’. Section 2 of the Land Acquisition Act 1960 (in part) 2 (1) In this Act, unless the context otherwise requires- (...) ”land” means alienated land within the meaning of the State land law, land occupied under customary right and land occupied in expectation of title; Additionally, Article 13 of the Federal Constitution states that no person should ever be deprived of their own property and any deprivation of land should be compensated. Article 13 of the Federal Constitution (right to property) (1) No person shall be deprived of property save in accordance with the law. (2) No law shall provide for the compulsory acquisition or use of property without adequate compensation. So to cut a long story short, both these laws ‘proved’ that the land taken by the Selangor Government was actually Temuan land, and that they should be compensated for it. TL;DR…. they won. This was the first case in which the Orang Asli sued the (state) government over the encroachment of their land, and became a landmark case used as a reference for future customary land encroachment cases… like the Temiar in Kelantan."
"5 changes Undi18 will bring to Malaysia  (other than lowering the voting age) For most of us, 21 is considered the age that signifies “maturity”. To mark our first step into adulthood, some of us would opt to take on bigger responsibilities in life – such as starting your first job, pursuing a degree...or deciding the political fate of your country. But this changed for the latter because on Tuesday, Malaysia made history once again when Members of the Parliament mutually agreed and voted to lower the voting age for Malaysians to 18. The Bill was proposed to basically make some minor (but crucial) changes in our Federal Constitution – specifically on 4 clauses (more on this later). Right now, the Bill has passed the first stage where it received 211 out of 222 votes – that’s two-thirds of the majority in the Dewan Rakyat. However, the Bill will still need to go through two other stages before becoming the Federal Law. Before we go into the the changes of the Bill, let’s briefly take a look at how they made it happen... It all started off as a Bill The Bill we’re referring to here is a parliamentary Bill. A bill is basically a proposal to introduce a new law or make changes to existing ones. It gives a general idea/structure of how the law would look like after the amendments/proposal. In other words, it’s pretty much a first draft to introduce a law. If only passing the law was as easy as waking up one day and deciding to change the voting age for Malaysians. There are actually 3 stages that our Federal Bill has to go through: First Stage: The Bill needs to go through the Dewan Rakyat, where 3 readings will be conducted – followed by a voting session. Second Stage: The Bill will be presented at the Dewan Negara to act as a check and balance and can propose amendments to the Bill. Third Stage: A Royal Assent must be given to the Bill in order for it to become the law. [READ MORE: Why does Malaysia take so long to create or change laws?] So, before you immediately jump the gun and declare that you are eligible to vote at anytime, take note that the process is rather lengthy – the law will only come into force when it is published in the Federal Gazette, after gaining the royal assent from the YDPA. The Bill will then take its final form and be known as an Act of Parliament. Now that you know this piece of information and you can flaunt your political literacy to your family and friends, let’s look at 5 key elements Malaysian youngsters need to know about this new Voting Age law in Malaysia... 1. If you’re 18, you have the right to vote So, let’s start off by stating the obvious here. The aim of the Bill is to refine the Federal Constitution, specifically under Article 119. The Article currently states: “(1) Every citizen who — (a) has attained the age of twenty-one years on the qualifying date...is entitled to vote in that constituency in any election to the House of Representatives or the Legislative Assembly...” The Bill proposes to amend Article 119 that specifies the voting age of “twenty-one years” by replacing it with “eighteen years”. The reasoning behind the amendment on the voting age was highlighted by Tun Mahathir as such: “(Compared to now) Information comes in many forms. They (the youth) can read the books, watch movies, follow websites and much more to gain wider knowledge...” – Tun Mahathir for Astro Awani. Tun M also stated that he considered Malaysian youths as “partners” in nation-building, and should be given an opportunity to be involved in the voting process. So, with great power, comes great responsibility. Which leads us to the next question...where and how do you register to vote? 2. You can register online first before the automatic registration process begins Gone are the days where we had to queue up and register to become a voter in Malaysia. With the new amendments being made to the Constitution, youngsters can now register online as voters, as the Election Commission has launched a site for this called MySPR Daftar. All you have to do is to register your personal details and upload your MyKad image onto the site. Once you’ve been verified, you’ll be sent a verification email and required to activate your account via TAC code. So, the changes being made to the Federal Constitution, specifically under Article 119(4)(b) is for the following: ‘“Qualifying date” means the date on which a person applies for registration as an elector in a constituency, or the date on which he applies for the change of his registration as an elector in a different constituency...in accordance with the provisions of any law relating to election” While we use the term “voting age”, the Constitution refers to it as the Qualifying Date. Qualifying date here is the date a person applies to be recognised as a voter in Malaysia – in conjunction with the Constitution. The amendment will be made to replace the conditions to apply for registration as a voter and the new “qualifying date” will now be 18 instead of 21. But this isn’t the only perk of voting at a younger age... 3. Your 18 year old’s can now become MP’s Most of the MP’s or politicians we see are normally older people – say 35 and above. However, this changed after GE-14 where youth leaders as Syed Saddiq and Prabakaran were elected to be part of the cabinet. With this new amendments being made, there is a higher likelihood that we will see even younger people being Members of the Parliament! This is because, the Bill now suggests changes to the Constitution which will qualify a person to become an MP in the Dewan Rakyat at the age of 18, and not 21. So there is a chance for you to beat the record, which is now being held by Prabarakan, who’s the youngest MP – aged 22. If the standard of an MP is too high and you want to start somewhere smaller – you can now also become a legislative state assembly member aka DUN. The necessary amendments are being made under Section 5 Schedule 8 of the Federal Constitution, to replace the age limit to 18 for state government members as well. Now, this could be a pressing concern, as some of you might wonder if youngsters who can’t decide what to watch on Netflix, would be able to make decisions that involve the future of the country. Well, don’t worry the Government got this figured out as well ;) 4. There is an education program for young voters The government has also proposed a program to educate the public on voting. The program specifically targets youth and will be implementing the Voter Education Program which was introduced somewhere in 2017. The program aims to help young voters understand Malaysia’s electoral process, and answer issues that were raised during the previous election last year. The program will be conducted by the Election Academy (APR) via the Election Commission. Right now, there aren’t any clear methods on how the programs will be conducted. But from what Tun Mahathir stated, it will most likely be conducted by trained lecturers and coaches and will be held in secondary schools/higher learning institutions across Malaysia. 5. There will be approximately 3.5 million new voters for GE-15 So in the last GE, we saw a rise in the number of young Malaysians who voted and played their part to make a change. But with the new amendments being made to the Constitution, the Government estimates the number of voters will increase to 22.7 million by GE-15 as compared to 14.9 million registered voters in 2018. However, this does not mean all Malaysians are aware of their right to vote and on how to exercise that right. Due to this, there have been talks on including a law to make voting compulsory in Malaysia. Although this was not mentioned in the Bill, there is a possibility for it to be included in the Second Stage of passing a Bill, which will be done in Dewan Negara. [READ MORE: 10 legal ages in Malaysia you probably didn't know about] [READ MORE: 5 MORE minimum ages in Malaysia you probably didn't know about]"
"5 kisah penyamaran pegawai penguatkuasa yang korang kena tahu Kalau kamu semua jenis yang selalu buka media sosial, mesti ada dengar berita pasal tindakan penguatkuasa Majlis Perbandaran Segamat (MPS) yang menyamar jadi pekerja kedai makan sebab nak tangkap orang Islam yang makan secara terbuka di bulan puasa. New Straits Times melaporkan, dua orang penguatkuasa tu menyamar jadi tukang masak dan pelayan. Tapi tak lama lepas tu, MPS dalam satu kenyataan menafikan laporan NST dan kata YDP-nya tak buat kenyataan seperti mana yang dipetik media. Selain dari penafian tu, MPS juga kata yang penguatkuasaan terhadap orang tak puasa berada di luar bidang kuasanya. Tapi di sebalik perdebatan tentang isu penguatkuasa menyamar ni, sebenarnya banyak lagi situasi-situasi tertentu yang membabitkan penyamaran pegawai-pegawai penguatkuasa. Dan antaranya adalah… 1. Pegawai JPJ menyamar jadi penumpang bas ekspres Salah satu berita yang kita tak nak dengar, tapi selalu dengar bila tibanya musim perayaan adalah kemalangan jalan raya. Keadaan bertambah parah bila ia kadang-kadang tu sampai membawa maut. Salah satu kemalangan yang paling tragik adalah pada 13 Ogos 2007, bila 22 orang penumpang bas ekspres maut akibat terbabas di Lebuh Raya Utara-Selatan (PLUS). Lepas tu, berlaku lagi beberapa kemalangan melibatkan bas ekspres, terutamanya pada musim perayaan. Salah satu faktor utama punca kemalangan ni adalah akibat dari kelalaian pemandu bas yang memandu secara berbahaya, memandu secara mengantuk, tak ikut undang-undang dan sebagainya. Oleh itu, untuk nak pastikan para pemandu bas ni memandu dalam keadaan baik, pihak Jabatan Pengangkutan Jalan (JPJ) dah memperkenalkan operasi penyamaran. Dalam operasi ni, pegawai JPJ akan menyamar sebagai penumpang untuk pantau kelakuan pemandu bas. Dan untuk tahun ni, 30 pegawai JPJ Selangor akan menyamar sebagai penumpang bas ekspres bagi sepanjang Operasi Sempena Perayaan Hari Raya Aidilfitri (HRA) 2019. Pengarah JPJ Selangor, Nazli Md Taib berkata, penyamaran tu akan dilakukan setiap hari di beberapa destinasi di Selangor bermula 29 Mei sampai 13 Jun. “Kita akan tempatkan anggota JPJ dalam bas secara samaran untuk melihat dan memastikan pemandu bas tidak melakukan kesalahan antaranya pandu melebihi had laju, menghisap rokok dan menggunakan telefon bimbit ketika memandu. Apabila kesalahan dibuat pemandu, anggota atau pegawai JPJ yang membuat samaran dalam bas boleh mengarahkan bas untuk berhenti di kawasan Rehat dan Rawat (R&R) berhampiran dan mengeluarkan saman kepada pemandu atau saman akan dikeluarkan kepada pemandu sebaik bas berkenaan tiba di lokasi terakhir iaitu di terminal.” – Katanya dipetik dari Berita Harian. Selain dari mengesan kesalahan-kesalahan membabitkan pemandu bas, penyamaran ni juga bawa penemuan lain macam mengesan ‘ulat tiket’. Jadi boleh dikatakan, penyamaran ni adalah “serampang dua mata”. Tapi selain dari penyamaran sebegini, ada juga penyamaran yang melibatkan tempoh masa tertentu. Dan itulah yang dibuat oleh… 2. Pegawai Jabatan Agama menyamar jadi ahli kumpulan ajaran sesat Seperti mana yang kita tahu, penularan ajaran sesat kadang-kadang boleh menimbulkan kegusaran dan masalah dalam masyarakat. Malah, ada juga kumpulan-kumpulan ajaran sesat yang bagi ancaman kepada keselamatan negara macam kes Ajaran Tuhan Harun suatu ketika dulu. Oleh itu, bagi membendung penularan ajaran sesat ni, ia menjadi tugas pihak berkuasa agama negeri untuk mengenal pasti pihak mana yang mendokong dan mengorganisasikan ajaran itu. Kalau kita lihat Enakmen Jenayah Syariah (Selangor) 1995 sebagai contoh, ada peruntukan khas di bawah Seksyen 7, Doktrin Palsu yang membolehkan seseorang tu didenda dan dipenjara kerana membawa ajaran sesat. Tapi nak kesan aktiviti ajaran sesat ni bukannya senang, sebab kena ada banyak kajian dan risikan. Oleh itu, antara apa yang cuba dibuat oleh Jabatan Agama Islam Selangor (JAIS) adalah, pegawai-pegawainya akan menyamar jadi sebahagian daripada ahli kumpulan ajaran yang disyaki sesat tu, untuk tengok sendiri sama ada ajaran tu bercanggah atau tak. Hasil dari penyamaran dan risikan tu kemudiannya akan dibawa ke Jawatankuasa Panel Akidah yang dipengerusikan oleh Mufti, untuk menentukan kedudukan ajaran tu. Tapi JAIS tak la terus tangkap atau buat serbuan, mereka selalunya akan buat sesi kaunseling dan akan berdialog dengan mereka dulu. Setakat tahun 2017, 39 ajaran sesat dah dikesan di Selangor, dan 19 daripadanya masih bergerak aktif. Tapi macam mana pula dengan pihak polis? 3. PDRM terkenal dengan penyamaran Cawangan Khas-nya Salah satu unit yang tekenal dan penuh rahsia dalam PDRM adalah Cawangan Khas atau Special Branch (SB). Unit ni memang terkenal dengan kepakaran risikannya sejak zaman sebelum merdeka lagi. Menurut buku “Malaya’s Secret Police 1945-60: The Role of the Special Branch in the Malayan Emergency” oleh Leon Comber, tugas sebenar SB adalah menyelinap masuk ke dalam kumpulan musuh dan mengumpulkan maklumat. Contohnya, masa zaman darurat, SB dah buat penyamaran dalam Min Yuen (sebuah gerakan komunis) untuk mencari maklumat dan apa je usaha subversif yang mahu dilakukan oleh komunis. Malah, melalui penyamaran ni juga, ramai ahli komunis yang berjaya dipengaruhi supaya meninggalkan perjuangan komunis. Dalam buku – Misi Rahsia Pasukan F (tulisan Azian Aziz) pula, Cawangan Khas ada menubuhkan satu pasukan yang dikenali sebagai ‘Pasukan F’ pada Mac 1971. Antara cara siasatan utama diorang adalah dengan gunakan teknik penyamaran. Biasanya, pasukan ni akan menyamar sebagai orang kampung ataupun pencari rotan untuk mengesan komunis. Hasilnya, Pasukan F berjaya membunuh sembilan pengganas komunis di hutan Kulim, Kedah dan berjaya halang cubaan untuk menghidupkan semula aktiviti pengganas komunis di Malaysia. Bagaimanapun, di zaman moden ni, SB dah tak tertumpu kepada aktiviti komunis lagi, tapi kepada ancaman lain macam pengganas. Sebagai contoh, Bahagian Anti Keganasan, Cawangan Khas Bukit Aman dah melakukan risikan dan pemerhatian terhadap kumpulan Islamic State (IS) sejak bertahun-tahun. Kesannya, banyak aktiviti pengganas dan rancangan diorang dapat ditumpaskan. Dalam perkembangan lain, baru-baru ni, sebuah parti politik di Sabah dah bertindak menghalang SB dari datang ke sidang media mereka. Pemimpin kanan parti tu kata, kalau SB nak datang, mereka kena beritahu identiti dan tak boleh menyamar sebagai wartawan. Akan tetapi, Ketua Polis Negara, Datuk Seri Abdul Hamid Bador menyifatkan tindakan parti tu sebagai “kebudak-budakan”. Jelasnya, kehadiran polis ke sesuatu majlis adalah untuk memastikan keamanan serta kelancaran majlis tanpa sebarang kekecohan. “Sebenarnya, tidak kira Cawangan Khas (SB) atau bukan SB, kehadiran mereka itu untuk memastikan ketenteraman dan keselamatan, itu sahaja… Katalah sewaktu buat sidang media, mereka keluar hujah yang menyakitkan hati atau berlaku kekecohan, kalau ada polis lebih mudah dapat jamin keselamatan.” – Abdul Hamid Bador, dipetik dari Berita Harian. Tapi macam mana pula dengan hak pengguna yang selalu kena tipu ni? Dan hal ni membawa kita ke point seterusnya… 4. Pegawai Perdagangan Dalam Negeri menyamar untuk kesan peniaga perdaya pengguna Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna (KPDNHEP) ditubuhkan pada 27 Oktober 1990, iaitu sebuah kementerian yang berperanan untuk menjaga kepentingan dan hak-hak pengguna. Dalam masa sama, kementerian ni juga ada Bahagian Penguatkuasaan-nya sendiri yang bertanggungjawab menguatkuasakan undang-undang perdagangan dan melindungi hak-hak pengguna. Oleh itu, pasukan ni dah terlibat dalam pelbagai operasi membenteras aktiviti tak bermoral para peniaga. Dan apa yang pasti, siasatan tu juga kadang-kadang melibatkan aktiviti penyamaran pegawai-pegawainya. Sebagai contoh, pada tahun lepas, penguatkuasa KPDNHEP dah bertindak menyamar sebagai pelanggan dalam operasi untuk menyerbu dua premis dipercayai menjual barangan tiruan. Hasilnya, KPDNHEP dah merampas pelbagai barang tiruan bernilai RM5,150, dan menahan dua lelaki berusia 29 dan 44 tahun masing-masing dipercayai pemilik kedua-dua premis berkenaan. Selain tu, KPDNHEP pun bertindak menyamar di beberapa kompleks membeli-belah, macam Kota Raya, Low Yat Plaza dan Kompleks Pertama untuk memantau penjualan barangan tiruan. Tapi rupa-rupanya, operasi KPDNHEP tak terhad kepada para peniaga je. Sebab pada Mac lalu, ada anggota KPDNHEP yang menyamar sebagai penonton wayang dan akan tahan orang yang merakam filem di pawagam. Kaedah ni adalah sebahagian dari Operasi Hak Cipta Membanteras Kegiatan Rakaman Dalam Panggung Wayang KPDNHEP. Itu belum masuk lagi penyamaran bila tibanya musim perayaan seperti memantau harga barangan, tindakan peniaga yang menyorokkan barangan atau menjual barangan melebihi harga yang ditetapkan. 5. SPRM menyamar untuk uji tahap integriti pegawai penguatkuasa Menurut Timbalan Ketua Pesuruhjaya (Operasi) SPRM, Datuk Seri Azam Baki, aktiviti ‘wang perlindungan’ masih lagi berleluasa di kalangan pegawai penguatkuasa di negara ni. Berdasarkan risikan pihaknya, seorang pengusaha rumah urut tak berlesen membayar antara RM1,000 hingga RM10,000 kepada pelbagai agensi penguatkuasa. Malah, beberapa orang awam seperti samseng kawasan dan PR (orang penghubung) kepada pegawai penguatkuasa turut terlibat mengutip wang rasuah secara bulanan. Bagi membendung aktiviti ni dan nak menguji tahap integriti pegawai penguatkuasa, SPRM dah menjalankan operasi secara penyamaran di beberapa negeri bagi menahan pihak-pihak yang terlibat. “Hello! sudah bagi salam pada Abang Long kawasan?” – Kata seorang lelaki kepada pegawai SPRM yang menyamar. Dipetik dari NST. Hasilnya, dalam Op Jejak dan Op Kota Raya yang dilancarkan SPRM dengan kerjasama Jabatan Imigresen tahun ni, SPRM dah menahan 14 orang, termasuk 7 orang pegawai agensi penguatkuasa dan tiga orang awam sebab terlibat melindungi pusat-pusat urut haram. Bagaimanapun menurut Azam Baki, didapati agensi-agensi terlibat masih lagi tak ambil iktibar dengan perkara macam ni. Selain tu, sejak kebelakangan ni, SPRM juga jalankan operasi penyamaran ketika berlangsungnya pilihan raya kecil – macam di Pilihan Raya Kecil (PRK) Cameron Highland. Pegawai-pegawainya yang berpakaian biasa akan menghadiri pelbagai acara serta kempen untuk buat pemantauan awam. Perkara ni dibuat untuk memastikan ada atau tak elemen rasuah terjadi sepanjang tempoh PRK tu. Sebenarnya, operasi penyamaran ni adalah sebahagian dari pendekatan siasatan baru yang diperkenalkan oleh SPRM untuk mengoptimumkan penyiasatan dan pengunaan pakar. Antara lain yang akan diperkenalkan oleh agensi tu adalah termasuk siasatan berasaskan perisikan, pengesanan aset, penyiasatan berasaskan analisis kewangan dan sebagainya. Namun begitu, mesti ada di antara kamu semua yang tertanya-tanya sama ada memang boleh atau tak pegawai penguatkuasa melakukan penyamaran. Dan hal ni akan membawa kita ke point seterusnya… Bukti dari operasi penyamaran boleh diterima di mahkahmah Sebenarnya, dalam banyak operasi penyamaran – istilah “risikan” selalu digunakan. Sebagai contoh, PDRM mengatakan – Cawangan Khas-nya menjalankan tugas selaras dengan apa yang diperuntukan di bawah Seksyen 3(3), Akta Polis 1967. Tertakluk kepada Akta ini, Pasukan hendaklah diguna khidmat di dalam dan di seluruh Malaysia (termasuk perairan wilayahnya) bagi memelihara undang-undang dan ketenteraman, mengekalkan keamanan dan keselamatan Malaysia, mencegah dan mengesan jenayah, menangkap dan mendakwa pesalah dan mengumpul risikan keselamatan. Mengulas hal ni, peguam Arik Zakri berkata, secara umumnya cara mengesan dan pencegahan jenayah sama sahaja di semua agensi penguatkuasa. Dan apa yang lebih penting adalah – kalau sesuatu bukti tu relevan untuk sesuatu pertuduhan, ia boleh je diterima di mahkamah, walaupun cara bukti itu dikumpulkan tidak menepati prosedur yang betul. Tambahnya, kita juga perlu tahu bahawa pemberi maklumat ada kekebalan, seperti mana yang diperuntukkan dalam Akta Perlindungan Pemberi Maklumat. Malah, akta ni merangkumi semua agensi penguatkuasa. ""Bukti yang didapati secara tidak mengikut undang-undang boleh diterima dengan syarat ia berkaitan dengan pertuduhan itu. Prinsip umum ini tertakluk kepada beberapa pertimbangan yang perlu dibuat oleh Mahkamah, contohnya prinsip supaya kesan prejudis (kemudaratan) tidak melebihi nilai probatif sebarang bahan bukti tersebut.” – Arik Zakri, katanya kepada Asklegal. Tambahnya, ada juga akta seperti – Akta Dadah Berbahaya 1952 yang membenarkan pihak polis memintas hubungan telekomunikasi dan bertindak sebagai agen provocateur iaitu menyamar sebagai orang tengah atau pembeli dalam sesuatu penjualan dadah supaya dapat memerangkap pesalah sindiket. Hal ni diperkuatkan dengan keputusan Mahkamah Persekutuan pada 2010, apabila mahkamah memutuskan bahawa kaedah penyamaran adalah sah untuk membendung aktiviti pengedaran dadah selaras dengan Seksyen 40A, Akta Dadah Berbahaya 1952. Selain tu, kita juga boleh lihat Seksyen 114, Akta Keterangan 1950 berkenaan dengan anggapan mahkamah. Mahkamah boleh menganggap – (e) bahawa tindakan kehakiman dan tindakan rasmi telah dilaksanakan mengikut aturan; Menurut Arik, dari seksyen ini – ia jelas mengatakan tindakan agensi kerajaan itu dianggap telah dijalankan dengan betul, sehingga ia boleh dibuktikan sebaliknya. Oleh itu, sama ada tindakan penyamaran itu betul atau salah, ia masih lagi diperdebatkan. Ini kerana, ia sekali lagi membawa kita kepada sifat bukti itu sendiri. Kalau bukti tu releven, ia masih lagi boleh diterima di mahkamah. Tapi, apa yang pasti adalah… Awak boleh dipenjara kalau menyamar jadi penjawat awam Walaupun penguatkuasa boleh menyamar untuk buat siasatan, kamu semua sebagai masyarakat awam tak boleh menyamar jadi penjawat awam untuk apa-apa sebab sekalipun. Ini kerana, dah jelas bahawa menyamar sebagai penjawat awam adalah kesalahan di bawah Seksyen 170, Kanun Keseksaan; Sesiapa yang berpura-pura memegang apa-apa jawatan tertentu sebagai penjawat awam, mengetahui bahawa dia tidak memegang jawatan itu, atau dengan palsu mempersembahkan mana-mana orang lain yang memegang jawatan itu, dan dalam apa-apa watak yang diandaikan melakukan atau cuba untuk melakukan apa-apa perbuatan di bawah jawatan itu, hendaklah dihukum dengan penjara selama tempoh yang boleh sehingga dua tahun atau denda atau dengan kedua-duanya. Oleh tu, janganlah nak gatal-gatal nak menyamar jadi polis, JPJ – etc. Lagi satu, bila kamu semua nak buat perkara yang melanggar undang-undang tu, fikirkanlah masak-masak akibatnya. Sebab… siapa tahu mungkin ada mata yang memerhati?"
"Can Malaysian restaurants legally stop you from bringing outside food? Let’s say you decided to save some money. You decide to pack food for lunch instead of eating outside. However, you don’t want to be left out from socialising with colleagues during lunch. You bring your ‘tapau’ food to the restaurant where your colleagues are eating, and you see a “NO OUTSIDE FOOD ALLOWED” sign. You ignore it because you’ve done this before but nothing happens. But, this time the waiter decides to shoo you out. This leaves you humiliated and you wonder, “Can restaurants actually stop you from bringing outside food?” What can the restaurants do if you bring outside food? Restaurants are generally quite reasonable. First, they might just tell you that you cannot bring outside food. Next, they might charge you for bringing outside food. Only in extreme cases, they will kick you out. Can they actually kick me out? Yes, they can. According to Fahri Azzat, a lawyer friend of ours, the restaurant has the right to kick you out. Even though there are no laws that specifically prevents people from bringing outside food, it is important to note that restaurants are private property and owners of private property can impose their rules on others. So, when you enter their premise, it means that you are bound by their rules. Here’s Fahri’s explanation for it: “All restaurants are private property. Owners or possessors of property can grant admission (or in legal parlance, license) to someone to enter their land. In granting permission, they can impose conditions under which you do so.” -Fahri Azzat in an email reply to Asklegal Basically, their restaurant, their rules. So, if a restaurant has a strict formal dress code, then you will have to follow suit. What if you were to buy a drink in their restaurant and eat your homemade food. Does this means that the restaurant has to serve you? The answer is it depends, as some restaurants will allow it and some which won’t allow it. You might think the restaurant is just thinking about the bottom line when they do this, and they only want you to buy their food and drinks. But there is a bigger reason for this rule. They don’t want to be responsible if you get food poisoning It’s not that they are afraid that you will sue them. They are not liable for the outside food. This falls on to the place where you got the food. This can be found in section 13(1) of The Food Act 1983, where it is an offence to prepare food that is dangerous to human health. 13. (1) Any person who prepares or sells any food that has in or upon it any substance which is poisonous, harmful or otherwise injurious to health commits an offence and shall be liable, on conviction, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both. What they are afraid of is the potential PR nightmare that this might cause. You might get sick from the outside food, but if you were to throw up at the premises, people might think that it is caused by their food. As Fahri explains: “ The restaurant will not be liable. The supplier or provider of the food that was brought into the restaurant will be liable. However, the restaurant may look bad to others because a 'customer' looks as if they were ill because of the food eaten in the restaurant.” Can the restaurant fine/kick you out for bringing outside food? As mentioned before, restaurants are private property and you are bound by their conditions when you are on their premises. Some restaurants might charge you for it but it would depend on how strict the restaurant enforces the policy. Some might just ask you to leave the restaurant. If you choose to stay even when they ask you to leave, you are potentially trespassing in their premises. In Fahri’s words: “If you infringe the restaurant regulations, they can say you did not meet the conditions of entry and eject you. If you refuse, you would have trespassed on the premises.” By remaining on their premises, you are committing a “criminal trespass” under section 441 of The Penal Code. 441. Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property; or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”. And you can be fined up to a maximum of RM3000 and/or jailed a maximum of 6 months under section 447 of The Penal Code. 447. Whoever commits criminal trespass shall be punished with imprisonment for a term which may extend to * six months or with fine which may extend to *three thousand ringgit or with both. At the end of the day, it is best to follow the restaurant’s rules and regulations. The ‘No Outside Food Allowed’ is more than just an economical reason. They don’t want to look bad when you get sick from eating outside food in their restaurant. Ask the restaurant first if you could join your colleagues but remember that no means no."
"Can Malaysian law protect you if your boss forces you to resign? So you’re a pretty decent employee. You show up for work on time, meet your performance goals, and generally won’t give anyone a reason to fire you. But one day, you really got on the wrong side of your boss. So wrong, in fact, that he makes it a personal vendetta to get rid of you. Now, your boss is smart enough to know that he can't fire you at his whims and fancy because you can take him to court, so he tries to be sneaky about it by making life absolutely unbearable at work that you literally have no choice but to resign. Perhaps he holds back your salary for a while, or he changes your job scope so you’re nothing more than an overglorified office boy with a senior management title. You see through his little scheme, but he’s the boss and you’re just a lowly employee… what power do you possibly have to challenge him? Well, there actually is a power that’s higher than he is… It’s called Constructive Dismissal In simple terms, constructive dismissal happens when you are forced to leave your job because your employer breaches an important term of your employment contract. Constructive dismissal is a common law concept (i.e. derived from court decisions), and it applies to Peninsular Malaysia, Sabah and Sawarak. The Industrial Relations Act 1967 and Employment Act 1955 are the common laws workers have to depend on to sue their employers. These two pieces of legislation are silent (meaning that nothing is specifically stated) on the definition of constructive dismissal. However, a claim of constructive dismissal can be made based on Section 20(1) of the Industrial Relations Act 1967 which states that no employees shall be terminated without just cause and excuse: “Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment; the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed.” The specific factors that amount to constructive dismissal are quite broad to explain, so here are a number of real life cases that would give you a better idea of what it generally entails: The employer transferred the employee to a position of lesser responsibilities that were incompatible with the employee’s original job role and status (basically not the job they were hired to do) – Watertec (Malaysia) Sdn Bhd v Lee Yoke Peng [2003] 1 ILR 866 The employer refused to pay the employee’s salary on time (after the period stated in the employment contract) – Lee Cheong Company Sdn Bhd v Lim Suw Koong [2003] 2 ILR 135 Falsely accusing an employee of misconduct – Citec International Sdn Bhd v Selvaraja N Gandhi [2003] 2 ILR 691 – Of course, this doesn’t automatically mean that you can start suing your boss for constructive dismissal because he or she gave you one hard day at work, or refused to give you that 20% raise you were asking for. The key in differentiating what is and isn’t constructive dismissal will depend on whether the following 2 main factors are proven. The 2 things you need to prove before you sue Malaysian courts have generally recognized two main elements an employee needs to satisfy (meet) in order to sue for constructive dismissal: Is what your employer doing a breach of your employment contract? Does your employer’s behavior amount to a serious breach of your employment contract? – Examples such as sexual harassment, a failure to pay your salary and downgrading your job scope will generally be seen as sufficient to satisfy this first element. Did you leave your job immediately after your employer's unacceptable conduct? – This requirement will be satisfied if you resign immediately because you simply cannot stand your employer's conduct any longer. So if you decide to ""hang in there"" despite your boss's unreasonable conduct, then your claim for constructive dismissal may fail. Before we move on, let’s be clear of who exactly you’ll be bringing to court for constructive dismissal. We have used the word “employer” and “boss” loosely but, in a legal context, you’ll be suing the party that you entered the employment contract with….essentially the name that appears on the contract. For example, if Imaginary Company Sdn. Bhd hires you to be a personal assistant for En. Bigwig, you’ll be suing Imaginary Company Sdn. Bhd. even though it’s En. Bigwig that’s making your office life a living hell. This is because Imaginary Company Sdn. Bhd. is considered a legal entity (like a ‘separate person’) under law that ‘signs’ the employment contract with you, and the manager’s behaviour will be attributed to the company. Similarly, if En. Bigwig hired you out of his own pocket, then he’ll be the one you sue. So… how do you start suing (and what can you ask for)? Assuming that the 2 elements mentioned above have been/can be proven, this is roughly what the process will be like: First, you will need to either go to an office of the Industrial Relations department or write to the Director General of Industrial Relations (more info here) within 60 days of you leaving/getting dismissed. Next, the Director General of Industrial Relations will try to get you and your employer to come to a mutual agreement (conciliation). If this doesn’t work, then the Director General of Industrial Relations will refer the case to the Minister of Human Resource, who may then refer it to the Industrial Court. This is where you and your employer will have to argue out your case and get a decision. The common options for remedies (compensation) an employee may ask for are reinstatement of job and monetary compensation. But since it’s likely that the employer-employee relationship is pretty sour at this point, it’ll be unlikely for the employee to get their job back. So it’s much more common to see financial compensation in these cases. At the end of the day, employers and employees each have a role to play to make work enjoyable. While you do have certain rights as an employee, not every challenge or scolding means your boss is trying to get rid of you – it could really just be a tough period at work or that you messed up. So it might be best to see what’s happening from a big picture perspective, relook at your employment contract, weigh your options, and make a decision from there. Just like work."
"Why does Malaysian Immigration keep arresting foreign cosplayers? If you are an avid fan of costume play (better known as cosplay), or have been following the news closely, you might be aware of the recent news where Malaysia arrested 3 Japanese woman and a Spanish man for participating in a cosplay festival. This is not the first time foreign cosplayers have been arrested, as something similar happened back in March where foreign participants were arrested at a different cosplay festival. But it’s not just cosplayers who get arrested at these events. In late June 2019, American pop singer, Maggie Lindemann was arrested halfway through her show and detained for just under 24 hours in the KL Immigration office. So what do the cosplayer and pop singer incidents have in common? Well, in the case of the recent cosplay arrests, the justification given by the immigration authorities was that the cosplayers did not have the proper permit to perform in public: “They came into Malaysia on tourist visas, but they were dressed up and performing without permission.” – Mohamad Shukri Nawi, senior Immigration official, as quoted by Channel News Asia via AFP In other words, they were here on tourist visas, which is the main issue because... You can only do certain things with Tourist Visas Just to clarify the terminology, a visa is a document stating that you have permission to enter the country, while a social visit pass is the Immigration stamp you get on your passport. For purposes of this article, we will be using both terms interchangeably. Most countries usually list what you can and cannot do on a tourist visa, and Malaysia is no different. The Immigration Department’s website lists the following things a foreign visitor can do with a social visit pass: Social visit Visiting relatives Tourism Journalism / Reporting Meeting / Conference Business Discussion Factory Inspection Auditing Company Accounts Signing Agreement Carrying out a survey on investment opportunities/setting up factory Attending Seminars Students on goodwill missions or taking examinations at a university Taking part in sports competitions Other activities approved by the Director General of Immigration But what’s a strict no-no is being employed (regardless of whether you’re paid or unpaid) while entering Malaysia under the social visit pass. This can also be found under Regulation 39(b) Immigration Regulations Act 1963 which is a breach of the pass, permit or border passes conditions. Upon conviction, it is punishable by a fine of up to RM1,000 and/or imprisonment of not exceeding six months. So the question is… what does a foreign talent need if they want to perform in Malaysia without getting an encore performance in an Immigration lockup? Foreign performers need to apply for a Professional Visit Pass (PVP) A PVP is a temporary pass issued to a foreign national with desirable professional qualifications or specialist skills to enter Malaysia for business and professional visits, for a short period of not exceeding twelve months. And the applicant must be outside of Malaysia at the time of application. The following type of working roles may qualify for PVP as stated in the Immigration Department’s website: Stage Artist – singer, musician, dancer, concert, theatre, circus, acrobatic, silat, magician and opera (Buddhist, Hindu, and others) Non-Artist – stage management and screen play filming activities – documentary, interview, fiction, entertainment, and commercial advertisement or other related filming activities of foreign filming production company in Malaysia. Live Performance/Shows – in hotel, entertainment outlets, Trade Centre, Cultural Centre, Stadium and other suitable place. Promotional Activities by artist – indoor or outdoor performance, album and films promotion and product promotion excluding alcohol and tobacco products. A PVP application must be made to the Malaysian Immigration Department by a Malaysian company that is acting as a sponsor. The process might take about seven to fourteen working days to be sorted. But… are cosplayers ‘performers’? So if you read the list of roles above, you may have noticed that cosplay is not even included in any of the above categories. In response to the recent arrests, Geek Summit (the organiser of the event) posted a statement on Facebook stating, among other things, that the arrested cosplayers did not perform on stage, and that the authorities had no choice but to arrest them due to a false report that had been made While the issue of the report is a separate matter between the organisers and the authorities, it perhaps can be an important reminder for future participants and organisers to look into getting a Professional Visit Pass – just to be on the safe side."
"5 things Grab customers need to know about Malaysia's new e-hailing law Before we get into the law and regulation stuff, let’s talk about something called proprietary eponyms. It’s actually something that we do every day, when we use brand names to refer to a generic product – like when you go to a pharmacy to buy panadol (paracetamol) or when you google (web/internet search) the lyrics to the latest Shawn Mendes song. It’s instantly recognizable, and anyone will know exactly what you’re referring to. So when it comes to calling up cars on an app in Malaysia, you don’t tell your friends you’re calling up an e-hailing vehicle or a ride-sharing vehicle…. you tell your friends that you’re calling a Grab. Essentially, this is a long-winded way to explain why we used ‘Grab’ in the title when it actually refers to any company in Malaysia that provides e-hailing services. This leads us to the upcoming laws and regulations that the Ministry of Transport has introduced to regulate the e-hailing industry. As a quick summary, Transport Minister Anthony Loke announced in July 2018 that e-hailing drivers and taxi drivers will fall under the same regulations by July 12th 2019. This mainly involves something called a PSV (Public Service Vehicle) license that came with certain requirements that drivers and companies would have to fulfill. While it looks like the regulations would only affect companies and drivers, they may actually have an effect on customers as well. We worked with Grab to come up with a list of changes that can be expected once July 12th comes about. 1. E-hailing will be 100% legal in Malaysia It may be a little hard to imagine that e-hailing was illegal, since we’ve been using them without much of an issue over the past 6 years. However, e-hailing companies such as Uber first came about as disrupters to the long-established taxi industry and rode along a grey area of the law. This is mostly due to how laws define public transport vehicles (ie, busses and taxis), which usually excludes privately owned vehicles; and you can be fined between RM1,000 – RM10,000 and/or jailed for up to a year under Section 16(5) of the Land Public Transport Act for using your car as a taxi without a license. Locally, illegal taxis are known Prebet Sapu. So governments around the world have addressed the e-hailing issue in one of two ways: Introducing or enforcing laws to make e-hailing outright illegal, or; Introducing or changing laws to make e-hailing legal Malaysia has chosen to go with the second option, where the government has updated the Land Public Transport Act to include definitions and regulations for e-hailing vehicles. On one hand it removes any ambiguity about the legality of e-hailing in the sense that getting into a Grab car is just as legal as stepping onto a bus. On the other hand, it also means that you’re promised a minimum standard whenever you step into one. 2. Your ride will be safer than before The safety of their customers and drivers have been a huge priority for Grab, and this is reflected not just in terms of various features within the app such as an emergency SOS button and driver reporting features; but also under-the-hood policies that drivers must follow to continue driving for them. These policies include a code of conduct for drivers (covering how drivers should behave, vehicle maintenance, dress code, etc.), data and privacy protection, and a zero tolerance policy towards sexual harassment. However, most of these were implemented as part of company policy, meaning that it isn’t standard across all e-hailing companies. But this is due to change as the Ministry of Transport also introduced two sets of regulations for the industry, which will be enforced by the Land Public Transport Agency (APAD). The Garis Panduan Bagi Pemandu Perkhidmatan Kenderaan Perkhidmatan Awam Kelas Teksi, Kereta Sewa, Teksi Mewah Dan Kenderaan E-Hailing outlines the requirements for a driver to qualify for a PSV license, such as health checks, background checks, and attending training sessions. [READ MORE: Here’s what e-hailing drivers need to know about getting their cars checked at PUSPAKOM] In addition, the Garis Panduan Perkhidmatan E-Hailing di bawah Perniagaan Pengantaraan outlines requirements for the industry as a whole. Some highlights are: Mandatory requirement for e-hailing apps to include an emergency function which sends a distress call to 999 and the driver and passenger’s emergency contacts. Cars older than 3 years must undergo a PUSPAKOM inspection Registration of driver AND passengers via MyKad (or passport for foreign passengers) Requirement for e-hailing apps to allow passengers to book rides for other people Requirement for cars to have driver, passenger, vehicle, and third party insurance While it can be pointed out (as in Grab’s case) that most e-hailing companies have already implemented some, if not all, of these before the regulations came about; the difference is that these features/requirements are now an absolute must instead of an optional addition. Because a driver without a PSV license won’t be able to get on the app in the first place, you can be assured that you’re stepping into a compliant vehicle with full insurance coverage every time. 3. But you may need to wait longer to get a ride While these new regulations would result in a better and safer experience, the flipside is that you may have trouble getting a ride – simply because there will be less drivers on the road. There are currently about 300,000 e-hailing drivers (from Grab and other companies) in Malaysia, of which 75% are part-timers. Because of this, the time, effort, and cost of complying with these new regulations may just cause a majority of them to drop out altogether. The Malaysian E-hailing Drivers Association (MeHDA) estimates that the drop-out rate would be 50%, while some other companies have projected a range between 30% – 40%. It also goes without saying that the regulations may also become a barrier for new drivers keen on signing up. [READ MORE: We went undercover to get a PSV license. Here’s what we found out] Grab tells us that this drop in available drivers may result in an increase in waiting time which, in minutes, means that you may need to wait for up to 6.36 minutes instead of the current average of 2.76 minutes. And because there will be less e-hailing cars on the road, MeHDA estimates that high demand surcharges could cause up to a 50% increase in fares, depending on how each company chooses to apply them. 4. Good news though, it may be a temporary thing Across the industry, e-hailing companies are coming up with ways to manage the driver drop-out problem by making the process easier for drivers and/or absorbing the cost of getting a PSV license. As an example Grab is now offering drivers the option to take the PSV training course online (versus signing up for the same course at a driving school), working with PUSPAKOM to make mobile inspection vehicles available at selected locations, absorbing many of the costs involved (about RM425 in total), and developing new insurance packages for drivers. Similarly, MyCar also provides an online PSV training course and subsidies on the medical check-up. While we won’t know what the actual drop-out rate would be like on July 12th, you may need to plan your e-hailing trips a little earlier in advance – just in case. 5. It affects ALL e-hailing companies While this may seem to be a pretty obvious point, we’ve noticed a number of comments in our previous PSV-related articles saying “Oh, if Company A is going to do this, I’ll just use Company B instead”. For instance, here are a couple of comments on our article explaining the requirement for passengers to send a photo of their MyKad to the e-hailing company for registration purposes: Because this is the first time the industry is being subject to government regulations, it can be a little hard differentiating between a company initiative and a MOT regulation if you aren’t following the PSV developments. For the most part though, you will be subject to the same requirements or its effects regardless of which e-hailing app you decide to go with."
"Here's why slimming product ads will now need the approval from the Ministry of Health As most of us already know that besides good food, Malaysia is also well known for having one of the highest obesity rates in the world. It is also human nature to look for shortcuts – which is why, a lot people resort to slimming pills and products to lose weight within a short and unbelievable span of time. Right now, there are so many different local health products in the market, particularly slimming products that are being advertised all over Facebook and Instagram. Most of the time, the quality of these products are questionable. Here’s a little backstory to help you understand the severity of this situation better... Sometime in 2007, a Malaysian woman died due to kidney and heart problems after consuming slimming pills for approximately 5 months. Her death caused several bodies to put a stop to this billion dollar industry, which is growing rapidly in Malaysia. There are certain parties that have been working hard to ensure these hazardous slimming products are regulated properly across the country. Last week, our writers from ASKLEGAL were invited by the Communications and Multimedia Content Forum of Malaysia (CMCF) to conduct an interview with their Executive Director, Mohd Mustaffa Fazil Mohd Abdan. He gave some valuable insight on the key amendments that were being made to the Content Code this year. Now, before you start panicking about this “new” Code, let’s take a look at something first... What is CMCF and the Content Code? Here’s a brief overview – CMCF is a body set up under Section 213(2) of the Communications and Multimedia Act 1998 (CMA). Its membership comprises of industry players such as Internet Service Providers, advertisers, and content creators. Some of you might confuse CMCF with the Malaysian Communications and Multimedia Commission (MCMC). Which is why it’s worthwhile to note that they’re both completely separate bodies that work hand in hand to regulate content that Malaysians create and share across electronic mediums such as social media, TV, radios and other online platforms. So, one of CMCF’s major functions is to come up with the Content Code (which was created in 2004), to provide certain guidelines, standards, and practices for industry players to follow. As we all know, the internet is constantly growing and changing. In order to evolve with the current trends and technology, the Content Code needs to be amended to suit the needs of Malaysians. There are actually 4 major amendments that are being made in the Code (we’ll explain the other 3 in brief later) but in this article, we’ll be focusing on advertising slimming products in Malaysia and how the Content Code is being amended to regulate this. So how exactly is the Content Code going to do this? Slimming pills need to be medically approved before they can be advertised To make this easier, let’s categorize slimming products based on how they work. There are two types of categories for slimming products: Slimming products that can be ingested: Pills, herbal teas & liquid/powder formulas. Slimming products that are offered as services: Laser treatments, massages, heat induced treatments The Content Code highlights the first category, which is the ingestion of slimming products. The second category which encompasses slimming services are regulated differently, and have separate licensing regulations expressed by the Medicine Advertisements Board (MAB). However, this isn’t the same for advertisements of slimming products that are consumed because most of the time, they are sold online on Facebook and Instagram by local vendors/agents. And in most cases, some of these products may not even have proper permits and can be injurious to health. The last thing you want is to end up having serious health issues which can even lead to death due to the consumption of these products. Therefore, to prevent more people from falling into this “lose weight in 30 days” trap, the best way to go about is by regulating the Code to ensure all slimming ads that require ingestion will now need to be permitted by the Medicines Advertisements Board. So, how exactly does the Content Code apply here? How do the regulations work? Perhaps the amendment will be understood best if we looked at the unamended version first, which is stated under Part 4.0 of the Specific Guidelines (xviii)(q): “Advertisements for products or services coming within the recognised character of, or specifically concerned with the following are not acceptable: (q) Slimming products, whether it is used orally or physical application.” The proposed amendment in the Content Code is still stated under the same para in the Code but...has an added extension to it: “Advertisements for products or services coming within the recognized character of, or specifically concerned with the following are not acceptable… (q) Slimming products/whether it is used orally or physical application unless approved by the Medicine Advertisements Board, Ministry of Health Malaysia (K.K.L.I.U.) ...” Basically, the amendment in the Code provides that any advertisement for slimming products will now have to be validated by the Malaysian Medicine Advertisements Board (MAB) before being advertised by any party. Online business advertisers who sell health products, particularly slimming products will now have to apply for the KKLIU from the MAB, and medicines need to be certified with the “MAL” registration number before being advertised. Here’s an example of what you need to look out for before consuming any type of medication: Now, let’s just say you’re scrolling through your Facebook feed, and you come across an advertisement that does not comply with the Content Code and the MAB. You can actually make a complaint directly to CMCF on their site to inform them about the illegal advertisement being circulated on the internet. If an advertisement does not comply with the regulations of the Content Code, the seller/advertising agent can be punished under Para 8.1 of the Content Code which carries a fine up to RM50,000.00, a written a formal reproval and/or removal of the illegal advertisement posted on the account. But let’s just say you **occasionally buy slimming/beauty products from an Instagram page, does the Code state any penalties that will affect you? You decide what’s best for you The main reason behind the amendment of the Content Code, particularly for slimming products is to boost consumer confidence. Once the advertiser of any slimming/health product gets the relevant permit, follows the guidelines set by the Medicine Advertiser’s Board and complies with the Content Code, the product will be considered legal and safe to be bought and consumed. The Content Code actually emphasizes less on legal sanctions/punishment and more on disciplinary action because it focuses a lot on self-regulation instead. For instance, we are normally urged to do our own research before sharing fake news on Whatsapp or WeChat. This is because, at the end of the day, we have the power to decide if something is worth sharing or not. [READ MORE: Is there freedom of speech in Malaysia if you can get arrested for Facebook posts?] So, if you were to see an ad on Instagram about a slimming pill that assures you that you will lose weight in 3 days – and on the other side you know someone who hits the gym regularly for 2 years until he/she could see results, which one makes the most sense to you? Well, the law cannot regulate common sense. And generally, we should all be able to rationalize between something that sounds too good to be true and something that seems realistic. The Content Code just acts as a guideline, and a starting point to self-regulation among Malaysians. Perhaps this was best explained by Mr Mustaffa himself during the interview: “Consumers must take, or learn to take greater responsibility for your own product purchasing decisions, for your own good. This is the start of fostering good, personal self-regulation practices” – Mohd. Mustaffa Fazil Mohd Abdan, Executive Director. Now, some of you might feel that there’s more that can be done to improve the Content Code and that the changes made isn’t enough... You can add your own 2 cents CMCF wants to hear from the members of the public on how they can further improve on the amendments that are being made to the Content Code. This does not just apply to advertisements on slimming products, but there are also 3 other issues that are addressed in the amendments as well. As we mentioned earlier in the article, there are 4 main amendments (including the advertisements on slimming products) which are subject to amendment in the Code, like: How the Malaysian Film Censorship Board classifies content. – The current classifications are 18+, PG13 and so on... Allowing public and private TV broadcasters to schedule classified programmes at relevant timings. – Eg: 18+ movies scheduled after 11pm. Increasing privacy requirements via the Malaysian Personal Data Protection Act 2010. Advertising slimming products and services with the approval of the Ministry of Health. – which was discussed in this article. Most of the time, we complain or comment on a new law or regulation once it has been passed and is set to apply. This is a rare opportunity as the public now has the chance to give suggestions for the amendments being made to the Code. And as consumers, it’s probably safe to say that we know best on what we need and what we don’t. Now you can be part of this by simply visiting CMCF’s site and participating in the Content Code Public Consultation Exercise. This exercise is done to gather as much input from Malaysians on how they want to improve their experience on electronic medium and the internet. The due date to send your suggestions is on the 14th July 2019! So, here’s the link to help you get started!"
"Malaysia nak jadikan dadah bukan lagi jenayah. Maknanya, ia dibenarkan ke? [Click here for English version] Korang mungkin ada terbaca berita baru-baru ni bila Malaysia dikatakan nak ke arah tak menjenayahkan (dekriminalisasi) pemilikan dadah untuk kegunaan peribadi. Hal ni diumumkan sendiri oleh Menteri Kesihatan, Dr Dzulkefly Ahmad, yang mengatakan: “Malaysia akan memulakan dasar pembawa perubahan (game-changer) yang penting untuk mendekriminalisasi penagih dadah dan ketagihan. ""Ini tidak sepatutnya disalahtafsirkan untuk melegalisasikan (membenarkan) dadah, dan saya sekali lagi menegaskan bahawa dekriminalisasi TIDAK bermakna kita melegalisasikan dadah.” – Dr Dzulkefly Ahmad, dipetik dari The Star Online, 27 Jun 2019, diterjemahkan oleh ASKLEGAL. Pada korang yang rasa macam keliru sikit tentang isu ni, sebenarnya dekriminalisasi atau tidak menjenayahkan ni bermakna kerajaan akan memansuhkan hukuman jenayah, tapi dalam masa sama ia tak bermaksud yang dadah akan dibenarkan di sisi undang-undang. Kalau korang baca berita yang kitorang rujuk tadi, korang akan dapat maklumat yang lebih terperinci lagi dan sebab-sebab kenapa kerajaan ambil langkah tu. Tak la macam gambar kat atas tu, bila korang selamba je hisap ganja atau lalok kat KLCC. Tapi dalam masa sama, korang mesti terfikir yang langkah ni macam tak masuk akal je, sebab kalau ia bukan lagi jenayah, bukan ke tu maknanya yang ia akan… jadi sah di sisi undang-undang? Korang tak akan masuk penjara, tapi korang masih boleh dihukum Untuk lebih faham pasal isu ni, kitorang tanya peguam Fahri Azzat untuk jelaskan perbezaan antara dekriminalisasi dan legalisasi, serta macam mana kerajaan akan ubah undang-undang ni. Sebenarnya, ada dua kategori kesalahan yang korang boleh lakukan. Pertamanya adalah salah laku awam (sivil), macam memandu laju di jalan raya atau melanggar kontrak. Kesalahan macam ni selalunya akan membuatkan korang didenda atau kena bagi pampasan kepada pihak satu lagi. Keduanya pula adalah salah laku jenayah yang jauh lebih serius dan boleh menyebabkan hukuman keseksaan, macam penjara, sebat atau hukuman mati. Berdasarkan dari penjelasan ni, kita boleh nampak perbezaan antara dekriminalisasi dengan legalisasi. Legalisasi – Ia bukan kesalahan sivil atau jenayah. Korang tak boleh dihukum kerananya, sebab korang tak langgar apa-apa undang-undang. Dekriminalisasi – Ia bukan lagi kesalahan jenayah, tapi ia masih kesalahan sivil. Korang masih melanggar undang-undang dan masih boleh dihukum, cumanya korang tak akan berdepan dengan hukuman keseksaan, macam penjara, sebat atau mati. Jadi, dalam konteks pemilikan dadah, Fahri menerangkan seperti berikut: “Dekriminalisasi bermakna kesalahan memiliki dadah tidak akan dihukum dengan hukuman keseksaan seperti penjara dan sebat. Ini tidak bermakna yang ia bukan kesalahan – ia adalah kesalahan sivil yang bertentangan dengan kesalahan jenayah. Kesalahan sivil biasanya dihukum dengan denda dan mungkin rampasan barang itu. Ia seperti didakwa atas kesalahan lalu lintas, berbanding kesalahan ‘pengedaran dadah’ (trafficking) atau ‘pemilikan dadah’ (possession) sekarang. Legalisasi adalah apabila dadah kini sah digunakan. Maksudnya, tidak ada sebarang kesalahan – sama ada sivil atau jenayah.” – Fahri Azzat, katanya kepada ASKLEGAL. Untuk nak nampak gambaran yang lebih jelas lagi, undang-undang semasa (di bawah Seksyen 12(3) Akta Dadah Berbahaya) menghukum pemilikan dadah dengan denda sehingga RM100,000 atau penjara sehingga 5 tahun. Sebaliknya, dekriminalisasi untuk kesalahan sama, korang mungkin akan didenda dengan jumlah tertentu dan dadah korang akan dirampas (bukannya dipenjarakan). Bagaimanapun, kena ambil maklum yang sekarang ni masih tak ada butiran khusus pasal hukuman tu lagi – dan kita cuma akan tahu bila kerajaan buat pengumuman perubahan tu nanti. Tapi, sebelum korang buat keputusan nak tambah simpanan ganja atau buat parti dengan undang-undang baru ni, ada satu perkara yang korang patut tahu… Korang masih boleh dipenjara (atau lebih buruk) sebab mengedar dadah Kalau korang perasan, Menteri Kesihatan sebenarnya bagi kenyataan yang spesifik. Daripada cakap ‘tidak menjenayahkan pemilikan dadah’, dia juga ada kata yang kerajaan akan tidak menjenayahkan pemilikan dadah untuk kegunaan peribadi (self administration). Ini kerana, sebenarnya ada tiga ‘kategori’ kesalahan dadah: Kegunaan peribadi (Self administration) Pemilikan dadah (Possession) Pengedaran dadah (Trafficking) Jadinya, ini bermakna – hanya dadah untuk kegunaan peribadi yang akan tidak dijenayahkan (kitorang akan cakap pasal pemilikan dadah dalam bahagian seterusnya), tapi mengedar dadah masih lagi kesalahan jenayah yang boleh membawa hukuman mati. Soalan seterusnya adalah, macam mana polis boleh tahu, apa yang korang nak buat dengan dadah tu? Lagipun, kalau polis nak dakwa korang dengan kesalahan mengedar dadah lepas jumpa 4kg ganja bersama korang, korang boleh je beritahu yang ganja tu untuk stok sepanjang minggu kan? Jawapannya, ia bergantung kepada berat dadah bersama korang tu, dan apa yang dipanggil sebagai anggapan (presumption). Korang mesti perasan dengan laporan berita rampasan dadah, selalunya jumlah dirampas tu sampai ke berat miligram. Hal ni sebenarnya tak la pelik sangat, sebab itulah cara diorang menentukan apa yang korang tengah fikir (niat) guna dadah tu untuk apa. Inilah dia ‘anggapan’. Sebabnya, Seksyen 37, Akta Dadah Berbahaya ada menggariskan senarai syarat dan berat dadah yang boleh menjadi janayah pengedaran dadah. Kalau korang dah buat seperti mana yang disenaraikan, pihak berkuasa boleh anggap yang korang ada niat nak jual dadah. Sebagai contoh, Seksyen 37(da) meletakkan aras berat pemilikan ganja (kanabis) pada kadar 200 gram. Jadinya, disebabkan berat ganja korang 4kg dan lebih tinggi dari yang ditetapkan, pihak berkuasa boleh menganggap yang korang berniat mengedar ganja dan dakwa korang dengan kesalahan jenayah walaupun korang betul-betul memang takde niat nak jual. Kalau nak tahu lebih terperinci lagi pasal macam mana anggapan tu berlaku, boleh baca artikel kitorang di link bawah ni. [BACA LAGI: 5 Things you need to know about Malaysia’s drug laws] Jadinya, dah jelas yang mengedar dadah memang dilarang sama sekali… tapi macam mana pula dengan dadah untuk kegunaan peribadi dan pemilikan dadah? Kitorang… sebenarnya belum tahu tahu macam mana kerajaan akan ubah undang-undang ni nanti Sekali lagi diingatkan, sampailah perubahan undang-undang ni diluluskan, tak ada cara kita nak tahu apa yang akan diubah atau hukuman macam mana yang akan diperkenalkan. Malah, kita juga tak pasti sama ada semua dadah akan tidak dijenayahkan atau yang tertentu je. Bagaimanapun, kalau korang rasa nak tahu macam mana diorang akan ubah undang-undang ni nanti, kitorang ada tawarkan beberapa andaian ilmiah dengan bantuan Fahri. Andaian #1: Kegunaan peribadi dan pemilikan dadah disatukan bersama dan tidak dijenayahkan Simple je, kegunaan peribadi boleh didefinisikan sebagai pemilikan dadah untuk kegunaan sendiri, manakala pemilikan dadah didefinisikan sebagai berada dalam keadaan memiliki dadah. Seperti mana yang korang nampak, ada perbezaan yang nipis sangat antara keduanya, jadi ada kemungkinan yang bahagian dalam Akta Dadah Berbahaya untuk kedua-duanya akan diubah atau dimansuhkan (dikeluarkan). ""Kedua-dua kepemilikan dan kegunaan peribadi berjalan seiring. Ia nampak macam tak betul untuk tidak menjenayahkan yang satu tetapi tidak yang lain. Itulah sebabnya saya perlu melihat Seksyen 6 dan 15 Akta Dadah Berbahaya bersama-sama. Bagi kedua-dua peruntukan ini, kerajaan boleh mengehadkannya (menetapkan jumlah maksimum dadah atau mengurangkan hukuman) atau memansuhkannya.” – Fahri Azzat. Andaian #2: Keluarkan beberapa dadah dari klasifikasi 'dadah berbahaya' Jadual pertama dalam Akta Dadah Berbahaya pada dasarnya menyenaraikan bahan-bahan yang penggubal undang-undang dah klasifikasikannya sebagai berbahaya. Oleh itu, ini bermakna kalau kerajaan buat keputusan untuk tak menjenayahkan kegunaan peribadi untuk beberapa bahan, diorang boleh keluarkannya dari Jadual. Menggunakan ganja sebagai contoh: ""Sekiranya mereka mahu dekriminalisasi (tidak menjenayahkannya), itu bermakna yang mereka mengiktiraf ganja bukan dadah yang berbahaya. Jadi bagi saya, ia tidak sepatutnya menjadi sebahagian daripada akta itu. [Jadi mereka boleh] meminda Jadual Pertama, mungkin Bahagian I dan II, untuk memansuhkan ganja."" Fahri lepas tu bergurau dengan kata – mungkin bahan-bahan ni masih boleh dikawal dengan menyenaraikannya di bawah undang-undang baru: “Mungkin mereka perlu datang dengan Akta lain lepas keluarkan ganja dari Akta Dadah Berbaya dan memasukkannya dalam Akta Dadah Tidak Berbahaya 2019. Haha.” Tapi sekali lagi kitorang ingatkan yang ni cuma nak bagi korang gambaran je macam mana proses tak menjenayahkan tu akan jadi nanti. Bila tiba masanya nanti, mungkin cara, prosedur dan hukumannya berbeza sama sekali seperti yang disebut di atas. Jangan pergi jalan-jalan bawa dadah! Selagi mana Parlimen belum luluskan undang-undang baru atau pinda Akta Dadah Berbahaya sedia ada, undang-undang lama masih lagi berkuatkuasa. Ini maknanya, kalau korang kena tangkap dengan apa-apa dadah berbahaya, korang akan didakwa dengan kesalahan jenayah di bawah Akta dan mungkin akan dipenjara. Atau mungkin…. lebih teruk dari tu."
"5 different types of saman that you can get for being a bad driver  Most of us are aware that road traffic laws are normally regulated by local authorities such as Polis DiRaja Malaysia (PDRM) and Jabatan Pengangkutan Jalan (JPJ). The system is there to enforce traffic rules and to reduce traffic accidents. So if you drive on a regular basis, there’s probably a chance that you’ve been pulled over by the cops because you decided to take a risk and shave a few minutes off your driving time by beating a red light, or gotten stopped at a roadblock because you completely forgot to renew your road tax. But whichever the case, this would always result in a fine which you’ll have to pay. If this isn’t bad enough, you can also be at risk of losing your license once and for all. However, ever wondered how the authorities determine how you get punished? Well, the short answer is that, rather than to have a separate punishment for each type of offence, they’ve group most of the traffic offences you could possibly commit into five categories – each with its own type of punishment There are actually two different types of summons that are normally issued by the PDRM, namely POL. 257 and POL. 170A. POL. 257 is used when you’re caught red-handed POL. 257 are summons that are issued in instances where you’re caught doing the offence on the spot such as going against a “NO ENTRY” sign, using the mobile phone when driving, or stopping at a busy highway without a valid reason. The list can go on and on, so to make life easier, these offences have been categorised into four major categories that range from offences that are life threatening to the ones that are less severe (does not directly contribute to harm or public safety). First category offences The offences listed under this category are known as non-compoundable offences. This means that they are the primary cause of accidents which jeopardises the safety of other road users, or create traffic jams. Some offences under this category are : Using the emergency lane without a legitimate reason Using mobile phone while driving Overtaking vehicles from the left Overloading passengers in a vehicle Imagine this situation, you are driving back from a club after having a drink or two, and you’re so unlucky to get pulled over by the police and positively tested for driving under the influence, you will be found guilty of drunk driving and actually be fined a total amount of RM300. [READ MORE : What are Malaysia's laws on drinking and driving?] While drunk driving is listed in the above as RM300 in summons, however under Section 45(1) of the Road Transport Act 1987, the fine could go up to RM1000 and also carry a jail term of not more than three months for first conviction. In the case of a second or subsequent conviction, the offender would have to pay a fine between RM2000 to RM6000 and liable to imprisonment for up to 12 months. So, if you really need a ride home after a long night of partying, you can always opt for carpooling or call for a Grab. This option is definitely safer than taking the risk... just saying. Second category offences These are offences which can possibly contribute to accidents and jams, but not as directly as in first category offences. Some examples of these include : Running a red light Stopping inside a yellow box junction Cutting traffic queue Making illegal U-turn The punishment for those who break the laws in the second category will have to pay a fine of RM 150 if paid within the first 15 days, RM200 between 16 to 30 days, and RM300 if paid between 31-60 days. There can sometimes be an overlap between first and second category offences, and this will usually be up to the officer to decide depending on the actual circumstances that got you caught in the first place. Third category offences As for this category, you might want to take a good look at the maintenance of your car as this area is all about the physical condition of your car. This can involve the roadworthiness of your car – proper working brakes, side mirrors, and working headlights – to driver-related mistakes such as having working headlights but forgetting to turn them on. In this category, the penalty for the offence is RM100 if you (manage to) pay within 15 days, escalates to RM150 if paid between 16 to 30 days, and a maximum of RM250 if paid between 31-60 days. Fourth category offences These are, generally speaking, the ‘least severe’ offences because they don’t directly contribute to accidents, but are against the law all the same. Some examples of these are not displaying ‘P’ stickers and driving without a valid license. However, if you are fine with a fine, you have to pay a penalty of RM70 if paid within 15 days, RM120 between 16 to 30 days, and RM150 between 31-60 days. So while not putting a P sticker doesn’t make you any better or worse a driver, you can still be fined RM70 because you’re required by law to display it as a probationary driver. POL. 170A is alllll about parking POL. 170A is basically summons that are issued via post or placed on the vehicle when the driver is not present. This includes Automated Awareness Safety System (Awas), vehicle double parking, and parking without paying or displaying coupon ticket. You might have “good excuses” to break the law like you are only running the red light at 3AM in the morning because there is no other cars on the road, or you double parked outside of the boba shop to feed your bubble tea addiction. However, all these honest mistakes of yours might cost you a fortune, which is a maximum of RM300 in fine. What happens if you don’t pay the fine? Now that you know how traffic offences somewhat works and the amount of fines you can be liable for, it may not matter in the end because you’ll be thinking….. “Saman need to pay one ah? Pay later got discount right?” However, this might not always be true as fines do increase over time. And if you think no legal action will be taken against you, you’re so wrong. JPJ can always send you a letter to go to court for a hearing and, if you are trying to be cheeky and ignore them, you might be blacklisted until the case is resolved. This might result in an unpleasant experience the next time you go to the nearest JPJ office to renew your driving license or road tax. You have to make an appearance before the Magistrate to have your summons released from the blacklist. After that, you can then proceed to settle the outstanding amount and renew your license or road tax. In the worst case scenario, if you avoid paying summons issued by PDRM, it could result in an arrest warrant being issued, and the warrant can only be cancelled by the court that issued it or if you get arrested. Hence, to avoid being blacklisted, all motorists can settle their outstanding summons through the PDRM or JPJ payment counter (or whichever issued you the summons), Pos Malaysia branches all over the nation, or Online through MyEG’s website. Or, you can avoid all these in the first place by being a law-abiding driver. Drive safe, guys!"
"Does Malaysian law allow your ex-company to sue you AFTER you resign? During your childhood, if you broke something and didn’t want your parents to find out, your first move would have been to just try and hide the mess – or run away from it. And most of the time, your parents would somehow know about it and punish you for whatever you tried to run away from. If only we could do the same in adulthood, right? Let’s look at two examples of situations where one can mess up in adulthood – particularly when you’re in the workforce. Situation 1: You committed a white collar crime by stealing a small but significant sum of money from your office. Situation 2: You accidentally erased the whole database of clients from the company’s server and the company is going to face losses soon. So, in these two very messy situations, an average adult’s next move would have been quite similar to what the child version of him/herself would have done – which is, to hide your mistake, or...run away from the mess. This, in the working world is now known as: Resign before your employer can fire or take legal action against you. It might sound like a good idea, but what if we told you...that your employer can still sue you AFTER you resign from your job? Yes, companies have the right to sue their ex-employees One thing should be noted here, it’s not normal for companies to go after their ex-employees once they’ve resigned from the job. But, there are some circumstances where they might decide to do so. This will normally result from a serious misconduct or action, which becomes detrimental to the company and they suffer major losses. It also depends on the type of misconduct or mistake that was made, because if the mistake made is a civil wrongdoing, then the company will sue the ex-employee. If it is a criminal misconduct on the other hand, the company brings a charge against the ex-employee who committed the criminal offence. [READ MORE: What’s the difference between getting sued and getting charged in Malaysia?] So, we’ve listed down several reasons for one to get sued/charged by their company after resigning from the job: Revealing the company’s trade secrets Committing theft or fraud Breaching the employment contract Not fulfilling duties during employment Resigning without giving sufficient notice But take note, these are only some reasons to get sued by your ex-company and there can actually be many more. One thing however, is certain: Companies will only sue ex-employees for committing serious offences. There are many different kinds of action that can be taken by an employer when it comes to suing an ex-employee. In cases of theft or fraud, the ex-employee might face criminal charges. But in cases involving a breach of contract or when an employee revealed the company’s trade secrets after resigning, the employer may sue for a breach of fiduciary duty (ie; natural duties of an employee towards the employer & company). If you’re not already aware, all employees are bound to something called a duty of loyalty aka fiduciary duty that is owed to the company and the employer. But this is not always stated in paper or written down. But some companies will ensure their employees sign what is known as a non-disclosure agreement (NDA) – A contract stating your relationship with the company is private and confidential. But what if you genuinely made a careless mistake or started a new business, using the knowledge and skills you learnt from your ex-company? It can’t be illegal to use the knowledge and skill you learnt from a previous job in a new one, right? Perhaps this case law can shed some light... [READ MORE: 5 things about employment contracts that every Malaysian gets wrong] [READ MORE: What qualifies as ""confidential information"" in Malaysia?] The Federal Court case that saved us all Here’s an example of a case which focuses on revealing the company’s trade secrets, which is one of the main reasons one can get sued by his/her ex-boss. In Dynacast (Melaka) Sdn Bhd & Ors v Vision Cast Sdn Bhd & Another (2016), the Federal Court was in favour of the employee even though he signed a NDA with his previous company. To briefly illustrate the story, the company was suing Mr Cheok (their ex-employee) for misappropriating information and sending it over to another competing business. However, the Federal Court here dismissed the company’s claims as the contract never specified a time limit for the ex-employee to keep the information confidential. This means that, although your boss sues you after you resign, it doesn’t necessarily mean you’re at fault in the first place. But this is different if the company has enough evidence to show that you have maliciously done something, resigned on purpose and caused them significant losses. The main idea here is that, as an ex-employee, you still have the right to defend yourself and will not be held responsible just because the company sued you after you’ve resigned – as what happened in the Dynacast case. Now, some of you might wonder, does this mean you cannot resign from your job even if you gave the company proper notice? You can actually resign your job at ANY TIME Your boss can’t stop you from resigning from your job (nor can you stop him from firing you). So, if you really want to resign, you must turn in your notice of resignation, before leaving the job. Section 12(1) of the Employment Act 1955 states: “(1) Either party to a contract of service may at any time give to the other party notice of his intention to terminate such contract of service…and shall be determined by a provision made in writing for such notice in the terms of the contract of service, or, in the absence of such provision in writing...” Basically, you need to give a notice at least 4 weeks or 12 weeks, depending on the duration you’ve worked, before you leave the company. This can be done at any time, unless your contract states otherwise. But if you resigned without giving sufficient notice, or after doing something illegal in the company, this does not mean that you’re free to go. The company still has a right to sue you, after considering if it is worth doing so to an ex-employee who left the job. And as an employee, you have the right to defend yourself in situations where your ex-company takes legal action against you – so long as you have enough evidence to prove that you did not commit a wrongdoing or breached your fiduciary duty as an employee. [READ MORE: My boss just fired me for no reason, what can I do now?] [READ MORE: Can Malaysian employers stop their ex-staff from joining a competitor?]"
"Ini cara buatkan seseorang tu didenda RM500k sebab bakar sampah secara terbuka Kita mesti pernah rasa sakit hati dengan perangai jiran yang suka sangat bakar sampah kat luar rumah. Disebabkan tindakan diorang tu, habis kawasan rumah kita berasap dan berjerebu. Bayangkan, bila keluar rumah, benda pertama yang korang dapat – terhidu bau asap! Disebabkan hal macam ni selalu jadi, maka tak mengejutkanlah bila dilaporkan terdapat lebih 3000 kes pembakaran terbuka berlaku pada bulan Mac 2019 je. Maknanya, bukan korang je yang pernah alami hal macam ni. Tapi…wujud ke undang-undang yang menghalang pembakaran secara terbuka? Korang tak payah risau! Sebabnya, Malaysia dah ada undang-undang yang mengharamkan pembakaran secara terbuka. Kerajaan sebenarnya dah menguatkuasakan Akta Kualiti Alam Sekeliling 1974 yang korang boleh guna untuk ajar jiran korang yang degil tu. Di bawah Seksyen 29A(1) akta ni, ia dah nyatakan – tak ada sesiapa pun yang dibenarkan atau boleh menyebabkan pembakaran terbuka di mana-mana premis. Dan sesiapa yang melanggar Seksyen 29A(1) ni, diorang boleh didakwa di bawah Seksyen 29A(2), di mana jika sabit kesalahan akan didenda tak lebih RM500,000 atau penjara tak lebih 5 tahun atau kedua-duanya! Ya! nilai RM500,000 tu cukup tinggi dan takde sesiapa yang nak ambil risiko bayar denda dan kena penjara sampai 5 tahun kan? Tapi… kenapa masih ada yang berani buat pembakaran secara terbuka, walaupun undang-undang dah sediakan hukuman berat? Menteri Tenaga, Sains, Teknologi, Alam Sekitar dan Perubahan Iklim, Yeo Bee Yin dalam temubual bersama The Straits Times kata, Jabatan Alam Sekitar (JAS) rupa-rupanya tak cukup alat untuk jalankan penguatkuasaan. Sebab katanya... “Hanya dua atau tiga minggu yang lalu, saya sedar yang JAS tidak ada kereta pun untuk jalankan penguatkuasaan. Ini mengarut! Dan, mereka juga tidak ada peralatan yang cukup”. – Yeo Bee Yin untuk The Straits Times. Penalti terhadap kesalahan ni juga sebenarnya dah boleh dianggap cukup tinggi dan tak perlu diubah. Bayangkan, inilah sebabnya kenapa penting sangat untuk korang buat laporan kalau ada sesiapa yang bakar sampah secara terbuka. Bukan je korang buat laporan terhadap jiran, korang juga dapat mengelakkan perkara ni dari berlaku dengan peguatkuasaan yang betul. Tapi, macam mana kalau kita dituduh walaupun bukan kita yang buat? Kalau korang didakwa terlibat dengan kes pembakaran terbuka dan korang berdepan dengan tuduhan di bawah Seksyen 29A, sebenarnya ada beberapa kelonggaran dalam akta sama di bawah Seksyen 29C, yang menyatakan: “… adalah menjadi pembelaan jika orang, pemunya atau penduduk premis membuktikan – bahawa pembakaran terbuka itu berlaku di luar kawalannya atau tanpa pengetahuan atau pembiaran atau persetujuannya. Jangan risau! Apa yang korang kena buat adalah, korang kena buktikan yang korang dah ambil semua langkah berjaga-jaga untuk mengelakkan diri dari melakukan jenayah di bawah Seksyen 29C. Lagi satu, kena ingat ni – kita tak bersalah sehingga terbukti bersalah. Adakah ni bermakna, pembakaran terbuka untuk tujuan keagamaan juga diharamkan? Persoalan baru pun muncul bila kita bincang pasal hal ni. Adakah bakar duit neraka atau colok juga diharamkan kat Malaysia. Rupa-rupanya taklah macam tu, sebab Jabatan Alam Sekitar dah buat beberapa pengecualian yang membenarkan pembakaran terbuka untuk tujuan tertentu; Pembakaran tanah pertanian berpenyakit Pembakaran terbuka dari aktiviti keagamaan atau kebudayaan (colok, duit neraka, pooja dan sebagainya) Pembakaran mayat Untuk tujuan barbeku atau memanggang (aktiviti riadah barbeku dan sebagainya) Flaring (untuk tujuan mengekstrak minyak) Walaupun macam tu, setiap anggota masyarakat sepatutnya cari jalan untuk meminimumkan pencemaran udara. Sebagai contoh, untuk barbeku, korang boleh je guna pemanggang elektrik dan bukannya arang. Untuk acara keagamaan atau kebudayaan pula, korang boleh bakar colok dan joss paper dalam relau tertutup dengan sistem penapisan yang baik dan bukan di tempat terbuka. Bagaimanapun, hanya disebabkan pembakaran untuk tujuan keagamaan dibenarkan, ini tak bermakna yang larangan dari Jabatan Alam Sekitar kita boleh abaikan macam tu je. Sebabnya, ada perkara-perkara tertentu yang masih lagi dilarang sama sekali di bawah Akta Kualiti Alam Sekeliling 1974, seperti: Sebarang pembakaran terbuka di atas tanah gambut Pembakaran terbuka dalam lingkungan 30km radius Lapangan Terbang Antarabangsa Kuala Lumpur (KLIA) Jadi, ni dia persoalan seterusnya. Kepada siapa kita boleh laporkan kejadian ni? Kalaulah kes ni jadi dengan tak terkawal, sampai boleh membahayakan diri dan orang sekeliling, korang patut hubungi Jabatan Bomba dan Penyelamat Malaysia. Tapi, kalau ia cuma pembakaran sampah yang dah lama mengacau kehidupan korang dan buatkan kawasan rumah korang berasap. Korang bolehlah buat laporan kepada majlis tempatan (Majlis Perbandaran) atau Jabatan Alam Sekitar melalui hotline diorang. Ini kerana, portal rasmi JAS sendiri mengesahkan yang di bawah Seksyen 29A Akta Kualiti Alam Sekeliling – bukan JAS je yang ada kuasa untuk siasat kes sebegini, tapi ada juga beberapa badan lain yang diberikan kuasa, seperti: Jabatan Bomba dan Penyelamat Malaysia Polis Diraja Malaysia Majlis tempatan (Majlis/Dewan Bandaraya dan Majlis Perbandaran) Dengan kemudahan ni, nampaknya lebih mudah untuk korang buat laporan sebab banyak jabatan yang terlibat. Nombor Majlis Perbandaran masing-masing dan hotline Jabatan Alam Sekitar boleh disemak kat sini."
"Malaysia wants to decriminalize drugs. Does this mean you can smoke weed in public? *Article originally written on 2 July 2019 Recently, the United Nations have voted to officially recognise cannabis as a medicine. It’s probably a high-ly anticipated news for some, but it’s still considered as a banned drug for non-medical use under United Nations law. There’s no news yet on whether Malaysia would adopt a similar law, but there is a chance that our drug laws might change sometime in the future. Back in 2019, you might have read in the papers that Malaysia is looking towards decriminalising drug possession for personal use. This was announced by our former Health Minister, Dr Dzulkefly Ahmad, who had this to say: “Malaysia is about to embark on a significant game-changer policy of decriminalisation of drug addicts and addiction. ""This is not to be mistaken for legalising drugs, and I again categorically emphasise that decriminalising does NOT mean that we are legalising drugs,"" – Dr Dzulkefly Ahmad, as quoted from The Star Online, 27 June 2019 [emphasis added] Essentially, the minister is saying that decriminalising means that the government would be removing criminal penalties but, at the same time, this doesn’t mean that drugs would be legalised. You can read the news report linked above for more detailed information as well as the reasons they’re doing this, but unlike the image above – it doesn’t mean you can walk around KLCC smoking a blunt or swinging a bag of Molly in your hand. At this point, you might be thinking that this doesn’t make sense because, if it’s not a crime then doesn’t that make it……..legal? You don’t have to go to jail, but you can still get punished for it In order to make more sense of this, we spoke to lawyer Fahri Azzat to clarify the difference between decriminalization and legalization, as well as how the government may change the laws to reflect this new direction. As a super simplistic explanation, there are actually two categories of wrongdoing that you can commit. The first is a civil wrongdoing, such as speeding on the highway or breaking a contract. These usually results in a fine or giving some sort of compensation to the other party. The second is a criminal wrongdoing (basically, a crime) which is a lot more serious and can result in penal punishments such as a prison sentence, whipping, or death sentence. So following this line of thought, we can now begin to see how decriminalization as legalization can be different: Legalization – It’s not a civil or criminal offence. You cannot be punished for it because you didn’t break any laws. Decriminalization – It’s no longer a criminal offence, but it’s still a civil offence. You’re still breaking the law and can still be punished, just that you won’t be facing penal punishments like prison, whipping, or death. So in the context of drug possession, Fahri explains it as such: “Decriminalising means that the offence of drug possession will not be punished with penal punishments such as prison and whipping. It does not mean that it is not an offence - it is a civil offence as opposed to a criminal offence. Civil offences are usually punished with fines and maybe confiscation of the stuff. It's like being charged for a traffic offence now instead of 'drug trafficking' or 'drug possession' offence. Legalisation is when drugs are now legal to use. That means, there is no offence whatsoever - whether civil or criminal.” – Fahri Azzat, in an interview with ASKLEGAL To help you visualise this better, the current law (under Section 12(3) of the Dangerous Drugs Act) punishes drug possession with a fine of up to RM100,000 or up to five years in prison. In contrast, decriminalization would mean that, for the same offence, you may be fined a certain amount and have your drugs confiscated (instead of getting jail time). However, it’s important to note that there are no details on the specific punishments yet – we’ll only know for sure if/when the government announces the actual changes. Before you decide to reap the ganja-ran of these new rules by stocking up on drugs or holding a pot party, there’s one more thing you should know... You can still go to jail (or worse) for drug trafficking If you noticed, our former Health Minister was rather specific with his words. Instead of just saying ‘decriminalising drug possession,’ he said the government would be decriminalising drug possession for personal use. This is because there are actually three ‘categories’ of drug offences: Self-administration (for personal use) Drug possession Drug trafficking So, this means that only self-administration will be decriminalized (we’ll talk about drug possession in the next section), but drug trafficking will still be a criminal offense that can land you with a death sentence. The next question is, how would the police know what you intend to do with the drugs? After all, if the police charge you with drug trafficking after finding 4kgs of ganja on you, you can always argue that you’re just a very heavy pot smoker stocking up for the long weekend...right? Well, the simple answer is that it all boils down to the weight of the drugs you were caught with, and something called presumption. You might have noticed that reports of drug busts always mention the amount of drugs seized down to the last miligram. That’s not an odd police flex but it’s just how they determine what you were thinking (intention) of using those drugs for. This is where presumptions come in. Section 37 of the Dangerous Drugs Act outline a list of conditions and weight of drugs that would constitute the crime of trafficking drugs. If you check enough boxes, the authorities can then presume that you had an intention to sell the drugs. For example, Section 37(da) puts the threshold for ganja (cannabis) possession at 200 grams. So because your 4kg of ganja far exceeds that threshold, the authorities can presume that you’re trafficking cannabis and charge you for the crime even if you truly-genuinely-cross-your-heart intended to smoke it all yourself. If you want more details on how presumptions work, check out the link below. [READ MORE: 5 Things you need to know about Malaysia’s drug laws] So we know for sure now that drug trafficking is a strict no-no… but what about self administration and drug possession? We…. really don’t know how they’re going to change the law yet Again, until the changes to the laws have been passed, there’s no real way of knowing what these changes will be or what kind of punishments will be introduced. In fact, we don’t even know for sure if ALL drugs will be decriminalized or just specific ones. However, if you’re curious about how they’re going to change the law, we can offer some educated guesses with Fahri’s help. Guess #1 : Self administration and drug possession are lumped together and decriminalized. Very simply, self administration can be defined as possessing drugs to use it for yourself while drug possession can be defined as being in possession of drugs. As you can see, there seems to be a very thin difference between the two, so there’s a possibility that the sections within the DDA for both may be changed or repealed (removed). “Both possession and self-administration go hand in hand. It seems silly to decriminalise one but not the other. That's why for me they have to look at Sections 6 and 15 of the DDA together. For both these provisions, the government can either limit it (prescribing a maximum amount of the drug or reducing the punishments) or repeal it.” - Fahri Azzat Guess #2 : Remove some drugs from the ‘dangerous drugs’ classification The First Schedule of the Dangerous Drugs Act is basically a list of substances that lawmakers have classified as, well, dangerous. So this means that, if the government decides to decriminalize the private use of only a few substances, they can just remove them from the Schedule. Using cannabis as an example: “If they want to decriminalize that, it means they recognize that cannabis is not a dangerous drug. So for me, it should not even be part of the act. [So they can] amend the First Schedule, probably Parts I and II, to remove cannabis.” Fahri then jokes that perhaps these substances can still be controlled by listing them under a new law: “Maybe they need to come up with another Act after they remove cannabis from the DDA52 and incorporate a NDDA2019 - Non-Dangerous Drugs Act 2019. Haha” Again, this is just to give you an idea of how they might go around the decriminalizing process. If or when the time comes, the actual method, procedures, and punishments may be completely different from what’s mentioned above. Don’t go around carrying drugs yet! Until and unless Parliament passes a new law or amends the existing Dangerous Drugs Act, the old laws are still in force. This means that if you are caught with any amount of dangerous drugs on you, this would be a criminal offence under the Act and you may be sent to prison. Or worse."
"Can the PDRM check your phone...without a valid reason? It’s pretty common for the PDRM to set roadblocks and this is normally done due to several reasons – such as when there is an operation to prevent traffic offences (like having an expired roadtax or driving without a license)...or if they’re looking for someone (most likely a criminal). However, take note that roadblocks aren’t the only time PDRM stops to search someone and their belongings. Although that is the most common situation, the police can actually stop and search you even when you’re just walking in public. But of course, it’s not as easy as it sounds because, they must have a valid reason to do so in the first place. So, if you’re one of the unlucky ones who have been stopped and searched, you might have a few questions about your rights in these situations. Even if you think you’re the luckiest person in this world because you’ve never been stopped by our abang polis before, we suggest you continue reading this article just to be on the safe side. Personal belongings include things such as your wallet, clothing and in more recent cases, the PDRM has been checking people’s mobile phones too. So the question here is...can the police go through your personal belongings (especially your phone) without any reason? [READ MORE: Is the PDRM allowed to search your body without a warrant?] [READ MORE: Legal Mythbusters: Can the PDRM check your phone for political messages at a roadblock?] [UPDATE] The answer is both yes...and no Most of the time, these random checks are done informally by the police. The officer might just ask you questions about yourself and for identification cards for verification purpose. However, when it comes to checking personal belongings such as your phone, this can only be done in the presence of an officer ranked Inspector and above, as mentioned in the RED BOOK. If it was as easy and normal for the PDRM to go through your phone, what happens to your constitutional right and freedom of speech? Well, there is a safe word here and it is to be “reasonable”. As we mentioned earlier in the article, if the police have no reason to suspect you and go through your phone, they won’t do so. According to Section 116 of the Criminal Procedure Code: “(1) Whenever a police officer making a police investigation considers that the production of any document or other thing is necessary to the conduct of an investigation into any offence which he is authorized to investigate and there is reason to believe...the officer may search or cause search to be made for the same in any place. (2) That officer shall, if practicable, conduct the search in person.” Based on the Act, an officer can only search through someone’s personal belongings such as a phone, when it is practical to do so. Imagine a situation where there is a raid at a bar or a nightclub carrying out illegal activities. The PDRM now reasonably suspects a person and needs to retrieve more information from his/her phone. When there is strong evidence, the police have all the authority/right to do so as long as the search is lawfully conducted. [UPDATE] PDRM can now only check phones belonging to suspects and individuals involved in ongoing investigations: There has been an update made by the Home Ministry, that the PDRM will not search/confiscate handphones from the public, unless they’re suspects or those involved in an ongoing case/investigation. But what if you feel like PDRM has acted beyond their powers... If you ever feel like you have been wronged by the PDRM, you can always write to them or file a complaint on their online platform here. Enforcement authorities are human too, so it’s possible that they may have made a mistake when trying to enforce the law. The problem here is, sometimes this can cause citizens to feel like their rights have been violated. Perhaps, the best solution to this is to watch what the officer does with your phone during a search. You can always stand close by and observe as well as cooperate with the PDRM in the event you are stopped and asked to show your phone. If the police does not find anything suspicious, then you’re good to go. However, this situation would be entirely different if you were arrested, and the police goes through your personal belongings after that. For further queries/solutions pertaining to your rights, you can always take your complaint to the Enforce­ment Agency Integrity Commission (EAIC) too. EAIC is basically a body which was set up to regulate and investigate complaints made against government officials/bodies. However, there are talks that the EAIC will be replaced by the Independent Police Complaints and Misconduct Commission (IPCMC) in the near future."
"Penulis kita menyamar untuk dapatkan lesen e-hailing (PSV). Inilah pengalamannnya Pada Julai 2018 lepas, Kementerian Pengangkutan ada umumkan peraturan baru untuk industri e-hailing, dan salah satunya adalah pemandu tak kira dari mana-mana syarikat sekalipun (sama ada Grab, MyCar atau sebagainya) kena dapatkan lesen PSV. Usaha ke arah ni bertambah lagi pada April 2019, bila maklumat yang lebih terperinci dah diumumkan dengan tarikh akhirnya ditetapkan pada 12 Julai ni. Lepas tarikh tu, pemandu e-hailing yang takde lesen PSV tak boleh jadi pemandu di mana-mana syarikat e-hailing. Keperluan nak dapatkan lesen ni sebenarnya nampak macam senang je. Dan korang cuma kena ikut aturan ni: Dapatkan pemeriksaan kesihatan di klinik yang diluluskan Buat pemeriksaan kereta dekat PUSPAKOM kalau umur kereta lebih 3 tahun Daftar dan datang kursus di sekolah memandu terpilih Ambil ujian berdasarkan kursus Dapat lesen Kalau korang pemandu e-hailing sepenuh masa yang tak mulakan lagi proses ni, kitorang nasihatkan korang mulakan cepat. Sebabnya, kitorang yang mulakan proses ni pada 8 Mei pun, dah dijadualkan untuk ambil ujian pada 30 Mei. Andaikanlah yang kitorang lulus percubaan pertama (dan yang lain-lain), maknanya masa yang kitorang ambil untuk keseluruhan proses ni adalah selama 23 hari. Ini dia pecahan masa dan kos berdasarkan pengalaman penulis kitorang. Tapi ambil maklum juga yang kos ni mungkin lebih rendah untuk sesetengah syarikat e-hailing sebab ada yang bagi subsidi, selain tu – milage korang pun mungkin berbeza. Kitorang buat pemeriksaan kesihatan… dua kali Masa diambil: 2 hari Kos: RM20 (lebih rendah kalau syarikat e-hailing ada subsidi) Nak cari klinik panel mana yang boleh buat pemeriksaan ni senang je… cari je kat Google dan nanti korang akan nampak senarai klinik yang disediakan syarikat e-hailing. Kebanyakan klinik ni ada tetapkan masa bila pemandu boleh buat pemeriksaan, dan benda ni kadang-kadang boleh menyusahkan sikit pemandu yang ada kerja sepenuh masa. Kitorang pula dapat klinik yang tetapkan masa sesuai dengan jadual kerja kitorang . Tapi, bila kitorang sampai sana, diorang beritahu yang masa tu doktor bertugas takde. Jadinya, tak ada cap syarikat untuk sahkan laporan perubatan. Kitorang lepas tu diminta datang sekali lagi esoknya pada masa makan tengah hari. PROTIP: Telefon klinik dulu sebelum korang pergi Pemeriksaan kesihatan ni terdiri dari pemeriksaan air kencing, penglihatan, tekanan darah dan ujian penafasan; diikuti konsultasi bersama doktor dengan beberapa soalan lain dalam borang JPJ L8A (boleh dapat kat klinik atau download kat sini). Seluruh proses ni ambil masa kurang dari sejam. Umur kereta kitorang pulak tak sampai 3 tahun, jadinya kitorang tak payah pergi PUSPAKOM, tapi korang boleh baca prosesnya kat artikel ni: [BACA LAGI: Ini apa yang pemandu Grab kena tahu bila buat pemeriksaan kereta di PUSPAKOM] Kitorang sampai merayu dengan sekolah memandu supaya benarkan kitorang masuk kuliah Masa diambi: 17 hari Kos: – Lepas kitorang Google senarai pusat memandu yang tawarkakan kursus latihan PSV, kitorang pun hubungi pusat yang terdekat untuk daftar… walaupun banyak di antaranya yang engage. Lepas menderita (mungkin 45 minit) dengar bunyi ~du du~, akhirnya kitorang dapat berhubung dengan satu sekolah memandu kat PJ. Wanita yang angkat telefon tu kata kursus PSV dah penuh untuk 2-3 minggu akan datang. Kitorang lepas tu pun dapat tahu yang kebanyakan sekolah memandu kat Lembah Klang ni cuma buat sesi latihan PSV sekali je seminggu, sebab itulah ramai yang ada dalam senarai menunggu. Tapi wanita tu baik sebab tawarkan kitorang masuk slot pertama yang ada kosong – dalam masa dua minggu lagi. Tapi kitorang pulak tolak dan kata akan cuba kat akademi lain. Rupa-rupanya, tu idea yang buruk! Ia ambil masa dua hari untuk kitorang telefon sekolah-sekolah lain dekat kawasan Lembah Klang; dan semuanya kata yang slot diorang dah penuh untuk beberapa minggu. PROTIP: Kalau korang kena tunggu bawah 3 minggu, TERIMA JE Akhirnya, kitorang terpaksa call balik sekolah pertama yang tawarkan slot tadi. Lepas merayu, wanita tu masukkan kitorang dalam slot asal yang ditawarkan sebelum tu. Tapi tunggu, sebab ada plot twist. Masa tunggu sesi kitorang, tiba-tiba Kementerian Pengangkutan kata yang pihaknya benarkan syarikat e-hailing jalankan sesi latihan PSV secara online (e-PSV). Kursus-kursus online ni akan disediakan oleh syarikat e-hailing masing-masing, yang mana ada juga pilihan kursus e-PSV ni dibuat secara percuma. Contohnya, Grab sekarang jemput pemandu-pemandu diorang untuk ambil latihan online secara percuma. Tapi, korang masih lagi kena buat pemeriksaan kesihatan dan pemeriksaan PUSPAKOM (kalau berkenaan). PROTIP: Kalau syarikat korang ada kursus e-PSV, AMBIL JE Kitorang tak tahu benda ni masa tu, tapi sekali lagi, ia akan buatkan artikel ni kurang menarik. Kuliahnya taklah seperti mana yang kitorang fikirkan Masa diambil: 6 jam (tempoh kuliah) Kos: RM149 (lebih rendah kalau syarikat e-hailing ada subsidi) Pada hari tu, kitorang datang awal untuk sesi pukul 8:30am, tapi disebabkan ada yang datang lewat, sesi tu pun dimulakan lebih lambat dari yang dijadualkan. Tapi benda tu pun membantu juga, sebab sempatlah kitorang berkenal-kenalan dengan pemandu-pemandu lain, macam ada sorang Datuk ni jadi pemandu Grab sebab dia dah bosan uruskan perniagaan dan nak banyak keluar dari pejabat. Bila kuliah mula pukul 9am, kitorang kira ada 51 orang yang datang. Kuliah ni mula dengan penyerahan Buku Panduan Pelatih, booklet yang ada semua maklumat yang akan diajar dalam kuliah. Boleh kata yang benda ni nota asas untuk persediaan ujian PSV. Kitorang juga kena sahkan kehadiran dengan buat imbasan cap ibu jari, dan diorang juga banyak kali ingatkan supaya buat imbasan tu lepas habis kuliah. Kalau tak, kehadiran tu jadi tak sah. PROTIP: Jangan lupa imbas ibu jari korang LEPAS kuliah! Kuliah ni hanya dijalankan dalam Bahasa Malaysia, dan ia dipecahkan kepada 4 modul; dengan beberapa aktiviti dan role-playing: Pengenalan tentang industri teksi Keusahawanan, teknologi, dan perancangan kewangan Khidmat pelanggan Undang-undang dan garis panduan (modul kegemaran kitorang) Mungkin disebabkan jangkaan awal kitorang yang berbeza, kitorang sebenarnya agak terkejut bila penekanan modul tu berpusat kepada industri teksi. Dari satu sudut, ia nampak nak ajar pemandu e-hailing dengan perkara-perkara asas pasal memandu kenderaan perkhidmatan awam, dan satu sudut lagi, untuk bagi pemandu teksi idea menggabungkan perkhidmatan e-hailing ke dalam perniagaan diorang. Walaupun kitorang taklah terangkan semua kandungan kuliah ni secara terperinci, tapi ada satu bahagian menarik yang kitorang nak beritahu – slide motivasi pasal keusahawanan yang jadikan Robert Kiyosaki’s Rich Dad Poor Dad sebagai rujukan. Benda ni lawak la juga sebab syarikat dia tu dah bankrup tahun 2007, termasuklah banyak kritikan terhadap nasihat kewangannya (sebahagiannya haram). Selain tu, ada juga beberapa slide (yang salah satunya kitorang guna untuk feature image) ambil pemandu teksi Jepun sebagai penanda aras perkhidmatan terbaik. Kitorang juga diberitahu yang pemandu e-hailing kena ikut kod pakaian yang sama macam pemandu teksi, macam – kasut tertutup dan seluar hitam, dengan pilihan baju yang ‘sesuai’. Tiga kali kitorang berehat, termasuk satu untuk makan tengah hari, dan kitorang pun imbas ibu jari untuk kali terakhir pada pukul 6pm. Kitorang tak tahu bila kitorang boleh ambil ujian Masa diambil: 1 jam peperiksaan, 7 hari menunggu Kos: – (termasuk yuran kuliah) Lepas kuliah, ada di antara kitorang yang tanya staff kat sekolah memandu tu kalau diorang boleh tempah hari tertentu untuk buat ujian. Tapi staff tu kata, disebabkan terlalu ramai pelajar, jadi sekolah akan hubungi diorang bila ada slot kosong nanti. Dengan kata lain, kitorang tak tahu bila kitorang akan ambil ujian tu. Pada pukul 1.30pm – 29 Mei, kitorang dapat mesej WhatsApp dari sekolah, beritahu kitorang yang ujian tu akan dijalankan pada 30 Mei, pukul 8 pagi. Maknanya, diorang bagi masa tak sampai 24 jam untuk kitorang buat persediaan. Nak-nak lagi bila tarikh tu hari Khamis dan kitorang pun kena kerja hari tu. Kitorang juga diingatkan untuk bawa pen biru bersama dengan IC asal dan lesen memandu. PROTIP: Bawa pen biru, IC dan lesen memandu Ujian tu ada 60 soalan pelbagai pilihan dengan markah lulus 48/60, dan ia cuma ada dalam Bahasa Malaysia. Kitorang tak akan bincang pasal soalan-soalan tu, atas faktor undang-undang, tapi apa yang kitorang nak beritahu – Robert Kiyosaki ada muncul dalam soalan tu. Kita mungkin akan kehilangan 100,000 pemandu e-hailing pada 12 Julai ni Secara keseluruhannya, kitorang takde isu sangat dengan kandungan kursus sebab maklumat yang diberikan tu mungkin berguna untuk merapatkan jurang antara perkhidmatan teksi dan perkhidmatan e-hailing. Tapi proses tu yang nampak macam menghalang, lebih-lebih lagi kepada pemandu e-hailing separuh masa. Terutamanya pasal kos, tempoh menunggu yang kadang-kadang tak menentu, dan kekeliruan dengan proses. Hal ni nampaknya ada disuarakan juga oleh pemandu e-hailing lain dan ia juga menunjukkan kadar kegagalan yang tinggi bagi ujian PSV. Akibatnya, Persatuan E-Hailing Malaysia ada menganggarkan yang separuh dari 200,000 pemandu e-hailing Malaysia mungkin akan tarik diri selepas 12 Julai ni. Untuk pelanggan pula, ia dah pasti akan menambahkan masa menunggu dan tambang: “Jika hanya ada beberapa sahaja mereka di jalan raya kerana gagal mendapatkan lesen PSV sebelum tarikh akhir, maka tambang pasti akan naik. Semasa waktu puncak, pasti tidak akan ada pemandu yang mencukupi dan masa menunggu juga akan menjadi lebih lama. Pengguna kami pasti marah.” – Mohd Faizul Ezmin, wakil Dacsee, dipetik dari New Straits Times. Kitorang pun tak pasti kalau perjalanan 23 hari kitorang tu normal ke tak (jangan ragu-ragu, beritahu kitorang kat bahagian komen), tapi mungkin usaha yang dilakukan oleh Kementerian Pengangkutan dan syarikat e-hailing untuk mengurangkan kos dan perkara yang kena dilalui boleh menggalakkan pemandu memulakan proses ni. Seperti kata pepatah, di mana ada kemahuan, di situ ada jalan... betul tak?"
"Here’s how you could attend any court case in Malaysia (even the 1MDB trials). It looks like a lot of people have always had interest in watching exciting live court trials, just like in the movies and TV shows or maybe the ongoing 1MDB trials implicating our former Prime Minister and his wife has peaked your interest in Malaysian judicial proceedings? It looks like it could be one of the most exciting court trial that’s garnering up to 7000 pages worth of documents and possibly up to 60 witnesses, well guess what? You can actually just literally walk into a courtroom and watch a trial.. Section 15(1) of the Court of Judicature Act 1964 states that all court hearings, for civil and criminal cases in Malaysia shall be open to the public, especially if its advantageous to the interest of justice, public safety, public security or other sufficient reason to do so. Section15(1) of the Court of Judicature Act 1964 The place in which any Court is held for the purpose of trying any cause or matter, civil or criminal, shall be deemed an open and public court to which the public generally may access: Provided that the Court shall have the power to hear any cause or matter or any part thereof in camera if the Court is satisfied that it is expedient in the interest of justice, public security or proprietary, or for other sufficient reason to do so. So, you’re actually legally allowed to attend any court trials that you’re interested in. Unlike your day to day TV shows where you have reruns, real courtroom trials have a pretty strict schedule but how would you know which cases are scheduled to be heard in court soon? Where can you find the court schedule? Well, for one, you could refer to the official website of the Office of Chief Registrar Federal Court of Malaysia, where you could click on their “cause list” option and search through their database for hearings held in specific courts either by the group, category or through hearing date. You should probably however, note that even though, court hearings are scheduled at a specific time and date, there could also be changes made to the schedule due to unforeseen circumstances and the hearing date or time could be postponed. For those updates, you would be advised to go to the designated court and get the updated schedule for that case. However if you’re unsure about the schedule the Kehakiman website recommends that you get there by 8.30am. Certain courts are not actually open to the public. Despite Section 15(1) of the Court of Judicature Act 1964, the Malaysian Judiciary has imposed certain exceptions to the rule whereby cases involving minors or sexual offences are closed to the public. This is for the protection of privacy of the minor and any sexual abuse victims. Section 12(3) of the Childs Act 2001 clarifies that no one else except the officers or members of Court, the minor on trial, witnesses, parents or guardians of the child, anyone else directly involved in the case or anyone determined by the Court, can be present during the hearing. Section 12(3) of the Childs Act 2001 No person shall be present at any sitting of a Court For Children except- Members and officers of the Court; The children who are parties to the case before the Court, their parents, guardians and witnesses, and other persons directly concerned in that case; and Such other responsible persons as may be determined by the Court. You would be able to go for any court hearing except for those involving minors or cases involving sexual crimes whereby the identity of the victim is protected by the law. [READ MORE: Did you know that Malaysia has a special court for CHILDREN who commit crimes? ] So… what should you actually wear to court? Since you’re now able to attend any civil or criminal hearing in Malaysia, what are you actually permitted to wear in court as per court etiquette rules. Men are advised to wear long sleeve white or plain shirt with tie and dark coloured slacks paired with formal black shoes. Women are recommended to wear white or plain long sleeve collared blouse with long ( below the knee) skirts also paired with formal black shoes. You’re also allowed to wear your tudung or religious turban in court. However, there are certain no-nos in court, whereby you're not allowed to wear; short pants or mini skirts jeans slippers helmet sunglasses informal jackets made out of leather, denim and others bright coloured clothing with full jewellery If you’re caught wearing any of the prohibited items, you would not be allowed into the courtroom. You also can't misbehave in court. So now, you’re in one of the courts in Malaysia, waiting to watch a particular hearing, what is considered proper Malaysian Court etiquette? Well for one, you should be in the courtroom early. You should also make sure that all of your mobile and electronic devices are switched off and you aren’t allowed to record anything whether through video or audio. It is also important that you rise and bow when the Judge or Magistrate enters or leaves the courtroom. Children are also not allowed in courtrooms unless you’re instructed by the Court to bring your kids, however, you would definitely have to make sure that they do not interrupt ongoing proceedings. You are also required to be silent and to give your full attention while the hearing is underway, it would be disrespectful towards members of the court if you were to leave the courtroom midway through the hearing. Please bring your IC or passport (if you’re not a Malaysian citizen) for identification purposes. By defying rules on etiquette set by the Malaysian Judiciary, you could be held to be in contempt of court. Contempt is when your acts are against the dignity or authority of the court. Section 13 of the Courts of Judicature Act 1964 clarifies that the 3 main courts in Malaysia has the power to punish any form of contempts (though the law doesn't specify what can amount to contempt). Section 13 of the Court of Judicature Act 1964 The Federal Court, the Court of Appeal and the High Court shall have the power to punish any contempt of itself. Needless to say, it would be better for you to be on your best behaviour and not go around pretending you’re Phoenix Wright by shouting “Objection!” while in court. Malas to go to court? You can bring the court to you! Well, not everyone has the time or actually want to sit for hours in court but you’re still interested in knowing the accurate judgement of certain cases, the Malaysian Judiciary has launched a website whereby all judgements and orders of all proceedings are open to the public online, except for cases involving minors or sexual offences. The Supreme Court in India has ruled to allow live streaming of their court proceedings to encourage court transparency and this is also implemented in many other countries such as UK, South Africa, Canada, New Zealand, Australia, Brazil, Germany and China. However, since we do not have that option her, judgement.my is our next best thing."
"Here's how a 'non-Muslim' religious group sued JAIS in court and won the case [Klik sini untuk versi Bahasa Malaysia] Many of us would have heard of the name JAIS before but, if you have no idea who they are, they are the government body that handles all Islamic religious affairs in the state of Selangor. Jabatan Agama Islam Selangor’s main role is to keep the Muslims in Selangor faithfully in check and to ensure that they are practicing their faith as they should. It would make a lot of sense, then, for JAIS to sue a Muslim in court or for a Muslim to take JAIS to court in cases of dispute. But if you told someone that JAIS was taken to court by a group that is considered to be non-Muslim, they might start looking a little confused since – as just mentioned – JAIS is supposed to look after Muslims only. But in 2014, a group of people known as Ahmadis, belonging to the Ahmadiyya movement took JAIS to court in a case now known as Maqsood Ahmad & Ors v Ketua Pegawai Penguatkuasa Agama & Ors,. Despite the name, Islamic officials in Malaysia do not consider Ahmadis to be Muslims, so what exactly happened? To understand the whole story better, let’s take a quick history lesson on this group of people. Who are the Ahmadis in the first place? The Ahmadis didn’t originate from Malaysia or any part of the Middle East, instead they came from the Northern Indian state of Punjab. In 1898, a man named Mirza Ghulam Ahmad founded the movement. It started off with a small following, but today there are around 20 million members worldwide. In Malaysia alone it is estimated that there are 2,000 - 5,000 of them. While there isn’t any solid proof of this, it has been said that the first Ahmadi reached Malayan shores in 1906. Just 19 years later in 1935, a man named Maulana Ghulam Husain arrived in Singapore as an Ahmadi missionary to Singapore and Malaya and that is how the movement is thought to have spread in here. So, this group’s history dates back to over a hundred years ago and it has spread all over the world, but the thing is... They’re not considered to be Muslims in most countries As mentioned above, the Ahmadis themselves claim to be a part of Islam, but the majority of Muslims around the world do not agree with them. Remember we mentioned that the founder of the movement was a man named Mirza Ghulam Ahmad? While this man’s teachings were being spread, at some point he claimed that HE was the Prophet and Messiah that was spoken of. He also said that several parts of the Quran were referring to him. Obviously, this did not sit well with many because it seemed to be blasphemy against God. Despite the fact that many didn’t agree with Mirza Ghulam Ahmad, many of his followers stayed by his side and the movement kept growing. When it reached Malaya, there were no issues at first. But it didn’t take long for people to point out that this faith seemed to be different from ‘mainstream’ Islam. In 1953, in the presence of the then Sultan of Selangor and a few Ulamas, JAIS determined that Ahmadis were unbelievers. In other words, they were not Muslim. Then in 1959 and later in 1970, two plots of land were allocated by the Menteri Besar of Selangor for Ahmadis to bury their dead. This meant that they could not bury a body in a normal Muslim cemetery. In addition, Tunku Abdul Rahman allocated several plots of land for them in Kampung Nakhoda, Batu Caves. And so, a small community of Ahmadis continued to live and practice their beliefs in Malaysia. But it was only in 1998 where a proper ruling was issued as to the status of Ahmadis. This ruling (known as a fatwa) declared that the Ahmadis would be considered as people who had left Islam and would be treated as such. The Jawatankuasa Undang-undang Fatwa Negeri Selangor (Islamic Legal Consultative Committee) of Selangor stated in a Gazette that: 1. Ajaran Qadiani adalah satu ajaran yang menyalahi dari ajaran Islam yang sebenarnya. Pengikut-pengikut ajaran Qadiani ini telah dihukumkan kafir oleh ulama-ulama Islam serata dunia. 2. Jabatan Agama Islam Selangor telah menghukumkan kafir kepada pengikut-pengikut Qadiani [...] Two years after that, some amendments were made to that ruling which further clarified the status of the the Ahmadis: If an Ahmadi married a Muslim under Muslim law, that marriage can be dissolved. An Ahmadi father could not be his daughter’s guardian (known as wali) in her marriage ceremony Ahmadis did not have a right of succession nor could they inherit a property as per Muslim law Malay Ahmadis could not have have any special economic privileges that the Constitution had granted to Malays So, for decades now, the Ahmadis were not considered Muslims. Keep this point in mind because it’s the crucial fact that came into focus when… JAIS arrested 38 Ahmadis in 2014 One Friday afternoon on the 11th of April 2014, JAIS went into the premises of the group in Batu Caves and arrested 38 of its members. Of the 38, three of them were children. When this happened, the group was performing Friday prayers in their centre. JAIS arrested them, saying that the group did not have the right to pray in a place that was a not a mosque. But that wasn’t all. The group had also not obtained written permission to conduct prayers in such a place. JAIS said that the group had committed an offence contrary to Section 97 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 which says: (1) No person shall, without the permission in writing of the Majlis, erect any building to be used or use or cause to be used any building for purposes which may only be carried in or by a mosque. (2) Any person who contravene the provisions of the subsection (1) shall be guilty of an offence and shall on conviction be liable to fine not exceeding three thousand ringgit or to imprisonment for term not exceeding one year or to both. Basically, the Ahmadis had conducted their Friday prayers in their centre, when it should have been done in a mosque, and this was an offence. JAIS then issued a Letter of Agreement and Bond to the Ahmadis which said that they must appear before the Syariah court. But what happened was…. The case was heard in the High Court instead of the Syariah Court Very simply putting it, there were two main points that were debated: Whether the case should be heard in the Syariah court Whether JAIS had any jurisdiction over the Ahmadis The Bond that was issued by JAIS said that the group was to appear in the Syariah court because naturally, that would be the court that would hear any issues relating to Islam and Muslims. But the case never made it there. The Ahmadis filed for a judicial review against JAIS’ demand for them to go to the Syariah court. A judicial review is basically reviewing or reconsidering a legal decision. The judicial review was approved and the case was sent to the High Court. The logic was simple: Since the authorities didn’t consider them to be Muslims, there was no need to for them to go the Syariah court. Instead, they should be tried as non-Muslims. When the case was finally heard in the High Court in July 2018, Judge Vazeer Alam delivered the judgment which essentially said that JAIS had no right to interfere in the matters of the Ahmadis. The reason given was the same as when the judicial review was approved. The Ahmadis aren’t considered to be Muslims, so it didn’t matter where they prayed. Therefore, JAIS had no right to tell a “non- Muslim” group where they can or cannot pray. And not only did the Ahmadis win the case, but JAIS was ordered to pay RM 25,000 to them as well. JAIS wasn’t too happy about this and appealed the decision. The case was then heard again in May 2019 in the Court of Appeal. The lawyers for JAIS argued that JAIS did have the authority to investigate and conduct checks on them since some of them had “Muslim” stated on their ICs. But the lawyers who represented the Ahmadis said that the ruling (fatwa) that declared the group as non-believers should prevail since it was an official ruling. At the time of writing, the Court of Appeal’s decision is still pending. What’s next for the Ahmadis? So the High Court decided that JAIS has no jurisdiction or authority over the followers of the Ahmadiyya movement, but that’s as far as it goes. It doesn’t change their status and they are still considered to be a religion that is outside of Islam. This means that they are a separate religion and Section 11 of the Federal Constitution will apply to them. (1) Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it. (4) State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. In other words, the followers of the Ahmadiyya movement are free to practice and profess to be a part of it. They’re just not allowed to spread their teachings among mainstream Muslims in the country."
"Macam mana 'kumpulan agama' ni saman JAIS dan menang?! [Click here for English version] Di Malaysia ni, majoriti umat Islamnya berpegang kepada Ahli Sunnah Wal Jamaah (ASWJ) atau dikenali juga sebagai Sunni. Secara asasnya, ASWJ adalah golongan yang berpegang kepada al-Quran, sunnah Nabi Muhammad SAW, para sahabat baginda dan pandangan majoriti ulama. Kedudukan ASWJ ni cukup penting di Malaysia, sebab dari segi perundangan dan fatwa semuanya berlandaskan pegangan ni. Sebab itulah, apa-apa je ajaran yang tak selaras dengan ASWJ selalunya akan difatwakan sebagai menyeleweng dan sesiapa yang mengamalkannya boleh didakwa di bawah kesalahan ‘Doktrin Palsu’ dan ‘Menghina Pihak Berkuasa Agama’ kerana melanggar fatwa yang dah ditetapkan. Tapi tak semua pihak setuju dengan perkara ni dan hal ini jugalah dah membuatkan satu kumpulan ni bertindak menyaman pihak berkuasa agama. Pada tahun 2014, sekumpulan pengikut Ahmadiyah dah memohon semakan undang-undang terhadap Jabatan Agama Islam Selangor (JAIS) di Mahkamah Tinggi. Tapi sebelum kita bercerita lebih lanjut lagi, rasanya lebih baik untuk kita kenal dulu apa dia Ahmadiyah ni… Ajaran ni sampai ke Malaysia sejak lebih 110 tahun dulu Berdasarkan kajian sejarah, ajaran Ahmadiyah ni sebenarnya berasal dari India dan ia diasaskan oleh seorang tokoh bernama – Mirza Ghulam Ahmad yang dilahirkan pada tahun 1835 di Qadian, India. Disebabkan dia lahir di Qadian, maka ajaran ni juga dikenali sebagai Qadiani. Fahaman ni dikatakan bermula bila Mirza terkenal sebagai seorang pendebat Islam yang hebat dan banyak berdebat dengan mubaligh-mubaligh Hindu dan Kristian. Dalam masa sama, dia juga mula ada ramai pengikut dan jadi seorang tokoh agama. Pada tahun 1891, Mirza dah isytiharkan dirinya sebagai al-Masih dan tak lama lepas tu sebagai Nabi pada tahun 1901. Pengakuan Mirza ni cukup bertentangan dengan akidah majoriti umat Islam – yang percaya Nabi Muhammad SAW sebagai Nabi terakhir. Seperti yang dijangka, tindakan Mirza ni dapat kecaman hebat daripada ulama-ulama Islam India, sampai jadinya peristiwa mubahalah (perakuan sumpah) antara Mirza dan ulama hadis – Maulana Sanaullah Amritsari pada 1907. Setahun lepas peristiwa tu, Mirza dah diserang penyakit taun dan akhirnya meninggal dunia di Lahore (sekarang di Pakistan) pada 26 Mei 1908. Tapi kematian Mirza tak menguburkan ajarannya tu, sebab dianggarkan Ahmadiyah masa tu dah ada lebih 200,000 orang pengikut! Disebabkan pengikutnya yang ramai tu, tak mustahillah ajaran ni berjaya tersebar di seluruh dunia, termasuklah ke Tanah Melayu/Malaysia. Dikatakan, Ahmadiyah sampai ke Tanah Melayu pada tahun 1906 melalui Sher Muhammad Khairuddin, seorang anggota polis dari India yang bertugas di Selangor. Selain tu, ada juga yang kata ajaran ni bertambah berkembang lagi bila Ahmadiyah bergerak secara aktif dalam gerakan dikenali sebagai The Muslim Mission yang berpusat di United Kingdom (UK). Gerakan ni kemudiannya terbitkan majalah Islamic Review yang penerbitannya turut sampai ke Tanah Melayu. Antara tokoh yang langgan majalah ni termasuklah Zainal Abidin Ahmad atau Pendeta Zaaba. Tapi sehingga ke hari ni tak dapat dipastikan sama ada Zaaba sedar atau tak yang majalah tu sebenarnya majalah rasmi Ahmadiyah. Akhirnya, muncullah kumpulan yang mengamalkan fahaman ni di beberapa tempat seperti di Jeram, Klang dan Kampung Nakhoda di Batu Caves. Maka bermulalah pertapakan Ahmadiyah di Tanah Melayu/Malaysia. Tapi, kemunculan fahaman ni taklah mudah diterima, sebab… Ahmadiyah kemudiannya difatwakan sebagai ‘keluar dari Islam’ Pada tahun 1953, pengikut-pengikut Ahmadiyah di Jeram, dah dibicarakan di Istana Kuala Lumpur di hadapan DYMM Sultan Selangor bersama dengan beberapa orang ulama dan JAIS. Hasilnya, JAIS dah menghukum pengikut Ahmadiyah sebagai kafir dan dah keluar dari Islam (murtad). Diorang juga diminta untuk bertaubat dengan mengucap dua kalimat syahadat. Disebabkan hal tu juga, lepas merdeka, Menteri Besar Selangor dah sediakan dua plot tanah di Selangor sebagai tanah perkuburan khas untuk pengikut-pengikut Ahmadiyah. Konflik antara Ahmadiyah dan ASWJ juga dah membuatkan Perdana Menteri Pertama, Tunku Abdul Rahman masuk campur. Sekitar tahun 1963, Tunku dah sediakan beberapa lot tanah untuk komuniti Ahmadiyah di Kampung Nakhoda, Batu Caves. Di situlah, kemudiannya komuniti Ahmadiyah dirikan bangunan dan sebagainya. Dalam masa sama, pada tahun 1975 – Majlis Fatwa Kebangsaan dah buat keputusan yang Ahmadiyah adalah ajaran yang diharamkan. Lepas tu, Jawatankuasa Undang-undang Fatwa Negeri Selangor pun buat keputusan yang sama iaitu Ahmadiyah terkeluar dari ajaran Islam pada 1998, dengan menyatakan: 1. Ajaran Qadiani adalah satu ajaran yang menyalahi dari ajaran Islam yang sebenarnya. Pengikut-pengikut ajaran Qadiani ini telah dihukumkan kafir oleh ulama-ulama Islam serata dunia. 2. Jabatan Agama Islam Selangor telah menghukumkan kafir kepada pengikut-pengikut Qadiani... Pada tahun 2000, pindaan dah dibuat dalam fatwa Selangor, iaitu: Perkahwinan pengikut Ahmadiyah boleh dibubarkan dengan pengesahan Mahkamah Syariah mengikut Seksyen 46, Enakmen Undang-Undang Keluarga Islam Selangor 1984; Pengikut Ahmadiyah tak boleh jadi wali dalam akad nikah anak perempuannya; Pengikut Ahmadiyah tak boleh mewarisi harta peninggalan kerabat-kerabat Muslimnya; dan Pengikut Ahmadiyah tak berhak untuk mendapatkan apa-apa keistimewaan yang diperuntukkan kepada orang Melayu. Dari tahun 1975 sampai 2013, boleh dikatakan majoriti fatwa di negeri-negeri seluruh Malaysia dah memfatwakan Ahmadiyah sebagai ajaran yang terkeluar dari Islam. Hinggalah pada tahun 2014, apabila… JAIS serbu pengikut Ahmadiyah dan… diorang cabar JAIS di Mahkamah Kes ni bermula pada hari Jumaat, 11 April 2014, bila pegawai-pegawai penguatkuasa JAIS dah bertindak menyerbu sebuah premis yang digunakan oleh pengikut-pengikut Ahmadiyah di Jalan Batu Caves. Premis tu digunakan oleh diorang sebagai tempat tunaikan solat. Serbuan tu dibuat kerana diorang didakwa tak ada kebenaran bertulis untuk gunakan premis tu bagi perkara-perkara yang hanya boleh dilakukan di/oleh masjid (berdasarkan Seksyen 97, Enakmen Pentadbiran Islam Selangor). Kesannya, 39 orang di premis tu dah ditahan. Diorang kemudiannya diberikan ‘Surat Perjanjian dan Jaminan’ yang menghendaki diorang datang ke Mahkamah Syariah untuk dibicarakan. Jadinya, pengikut-pengikut Ahmadiyah ni pun rasa tak puas hati dan buat permohonan semakan kehakiman untuk mencabar JAIS di Mahkamah Tinggi. Kes ni juga dikenali sebagai – Maqsood Ahmad & Ors v Ketua Pegawai Penguatkuasa Agama & Ors. Dalam perbicaraan tu, Mahkamah dah menyemak kembali beberapa hal berkaitan dengan Ahmadiyah termasuklah Tindakan JAIS menghukum pengikut Ahmadiah sebagai bukan Islam pada tahun 1953 Fatwa Selangor yang diwartakan pada 1998; dan Pindaan fatwa tu pada tahun 2000 Selain tu, Mahkamah juga merujuk satu kes di Kedah yang jadi pada tahun 1983 – Abdul Rahim bin Haji Bahaudin v Chief Kadi, Kedah. Dalam kes tu, Rahim dah mohon semakan mahkamah tentang kuasa Kadi untuk mengambil tindakan terhadapnya iaitu seorang pengikut Ahmadiyah. Mahkamah lepas tu buat keputusan yang Kadi Kedah tak ada kuasa terhadap Rahim disebabkan keputusan Majlis Agama Negeri Kedah yang dah mewartakan fatwa bahawa Ahmadiyah bukan Islam pada 1981. Ini kerana, Rahim dianggap sebagai bukan Islam dan dia tak boleh didakwa di Mahkamah Syariah. Hal ini jugalah berlaku dalam kes di Selangor. Pada 6 Julai 2018, Mahkamah Tinggi Shah Alam dah membuat keputusan yang Ahmadiyah tak tertakluk di bawah bidang kuasa pihak berkuasa agama negeri (JAIS) kerana ajaran tu dah lama difatwa sebagai bukan Islam. Selain tu, keputusan tu juga dibuat atas beberapa faktor seperti: Fatwa Selangor menyatakan pengikut Ahmadiyah sebagai bukan Islam, maka dengan itu, pihak Ahmadiyah tak perlu dapatkan kebenaran MAIS untuk gunakan premis berkenaan sebagai tempat ibadat. Kerana definisi masjid berdasarkan Enakmen Pentadbiran Islam Selangor adalah tempat solat untuk orang Islam. Kewujudan komuniti Ahmadiyah di Selangor dah diketahui sejak sebelum merdeka lagi, dan diorang pun dah diberikan tanah khas. Papan tanda ‘Qadiani bukan Islam’ juga terpampang di depan Baitussalam (pusat Ahmadiyah di Kampung Nakhoda). Tiada bukti yang tindakan diorang menyewa premis tu untuk beribadat dah mengganggu ketenteraman awam. Tambahan lagi, Seksyen 74, Enakmen Pentadbiran Agama Islam Selangor 2003 menyatakan: (1) Tiada keputusan Mahkamah Rendah Syariah, Mahkamah Tinggi Syariah atau Mahkamah Rayuan Syariah boleh melibatkan mana-mana hak atau harta seseorang bukan Islam. Jadinya, jelas yang Ahmadiyah tak boleh didakwa di Mahkamah Syariah, sebab diorang dah pun difatwakan keluar dari Islam. Maka, Ahmadiyah sekarang dianggap sebagai kumpulan agama dan ada kebebasan untuk amalkan kepercayaan mereka tu selaras dengan Perkara 11, Perlembagaan Persekutuan: (3) Tiap-tiap kumpulan agama berhak – (a) menguruskan hal ehwal agamanya sendiri; (b) menubuhkan dan menyenggarakan institusi-institusi bagi maksud agama atau khairat; dan (c) memperoleh dan mempunyai harta dan memegang dan mentadbirkannya mengikut undang-undang. Bagaimanapun, penyebarannya masih lagi boleh disekat, selaras dengan Perkara 11(4), Perlembagaan Persekutuan: Undang-undang Negeri dan berkenaan dengan Wilayah-Wilayah Persekutuan Kuala Lumpur, Labuan dan Putrajaya, undang-undang persekutuan boleh mengawal atau menyekat pengembangan apa-apa doktrin atau kepercayaan agama di kalangan orang yang menganuti agama Islam. Tapi, dalam keadaan tertentu masih ada yang boleh didakwa Walaupun Ahmadiyah sekarang ni boleh mengamalkan kepercayaan diorang secara bebas, tapi tu tak bermakna fahaman-fahaman lain pun boleh buat benda yang sama. Ini kerana, Ahmadiyah dah difatwakan sebagai terkeluar dari Islam dan berbeza dengan ajaran-ajaran lain yang difatwakan sebagai menyeleweng dari ASWJ seperti Syiah, Al-Arqam, Ayah Pin dan sebagainya. Jadinya, diorang ini masih boleh didakwa di bawah undang-undang syariah di negeri masing-masing. Malah, sehingga Januari tahun lepas, kerajaan Malaysia dah mengesan 17 ajaran baru yang didakwa menyeleweng dari ASWJ. Oleh itu, bagi korang yang nak tahu lebih pasal fatwa-fatwa yang dah dikeluarkan, korang boleh semak di sini. Kepada yang ada rasa ragu-ragu atau ada kemusykilan pasal isu agama pula, korang boleh je buat pertanyaan atau rujukan di Jabatan Agama/Jabatan Mufti di negeri masing-masing atau melalui portal JAKIM. Lebih-lebih lagi sekarang ni semuanya berada di hujung jari je."
"5 facts about the waste dumping crisis in Malaysia that you probably didn't know Recent news has emphasised the possibility that Malaysia may have a mounting issue with other developed countries in regards to them dumping their waste here. Malaysia and the Philippines, have been in dispute with Canada regarding the excessive amount of plastic waste that has been dumped here. Many other developed countries have also dumped their wastes across countries in Southeast Asia. With more than 100,000 tonnes of plastic waste being imported from the US alone this year, Malaysia became the world’s largest importer of plastic waste. Here are a few facts that you may not have been aware of regarding the crisis that Malaysia is facing right now. Malaysia wants to return waste back to Canada. Headlines on the news have been updating almost weekly regarding Malaysia’s dispute with Canada. So what’s really going on? Due to the excessive waste dumping in Malaysia, Minister of Energy, Science, Technology, Environment and Climate Change,YB Yeo Bee Yin has decided to take preemptive action by returning 3000 tonnes of plastic waste back to 14 countries of its origin, one of them being Canada. However, a spokesperson from the Canadian Environment and Climate Change Department, initially claimed that the Canadian government has no plans to take back the waste from Malaysia. It’s important to note that Canada was also in dispute with the Philippines in April 2019, with President Rodrigo Duterte threatening to wage war against Canada if the waste was not taken back by them. But they eventually agreed to take back the waste and the travel ban was lifted. Canada’s dispute with the Philippines prompted Malaysia to stand firm on their decision as well, and since the Canadian government has agreed on taking back waste from Philippines, it would only be fair for them to do the same with the plastic waste that has been dumped here as well. Canada eventually agreed to take back the waste and they have also implemented policies to completely ban some single-use plastic by 2021. But… what actually prompted Malaysia to take on nearly 50% of the waste around the globe? 1. China stopped taking the world’s plastic waste. China used to dominate the waste recycling market in the world and they were basically taking on more than half the world’s plastic waste which was nearly 9 million metric tonnes of plastic scrap. Due to China’s drastic levels of air pollution, which exceeded global standards set by World Health Organisation, they’ve decided to take steps to cut the level of pollution in their country, one of them being the ban on 24 types of wastes scraps and this sent the world scrambling to find alternatives for waste management. The ban basically caused a disarray in the cycle of waste management around the world which prompted ships carrying tonnes of plastic waste to China to be redirected to other countries across Southeast Asia, such as Vietnam, Malaysia, Philippines and Thailand. This leads to how Malaysia became China’s substitute by importing more than 700,000 tonne of plastic waste this year alone.​​​​​​ But… why are illegal factories mushrooming everywhere? 2. The recycling industry is extremely lucrative. Since most of the waste have been transferred here, both legal and illegal waste recycling factories have started mushrooming all across Malaysia, making it extremely hard for government officials to regulate each one of them based on both international and national standards. Due to the large volumes of plastic scrap getting shipped to Malaysia, the plastic recycling industry has become extremely profitable, earning up to billions in a year. Environment Minister, YB Yeo has acknowledged that the plastic recycling industry would have possibly earned up to RM3.5 billion in 2018 alone. Another source has quoted that the recycling industry is worth 30 billion locally while worth 600 billion globally. Minister of Housing and Local Government,YB Zuraida Kamaruddin, who’s actually the in charge of waste management in Malaysia, has also revealed that the government would not want to miss out on a billion-dollar business opportunity. While they have plans to look further into it, they’re also trying to implement strict rules in the process. But how does the illegally imported waste slip through our borders? 3. The waste is shipped by illegal operators As we explained earlier, the recycling industry is immensely profitable, which subsequently leads to an increase in illegal recycling companies that are trying to profit from this industry. However, our government has been trying their best to shut down illegal recycling companies, but despite the effort the factories have recently opened up again. How do they get away with importing so much waste? Well, for one, some of the household waste is mislabelled as “plastic recyclables” then shipped to be dumped here. As mentioned above, Canada was in dispute with the Philippines for the excess of this illegal waste that has been “mislabelled” but they’ve already agreed to take the waste back. And here’s what they do to non-recyclable waste that they aren’t able to profit from… 4. The waste is dumped into the rivers or burnt. Research done by Greenpeace Malaysia revealed that most of the recycling facilities in Malaysia contain extremely high amounts of imported plastic waste that will eventually be burned openly or dumped at poorly regulated sites. For instance, in the Pulau Indah industrial zone, the illegal factories have been said to openly burn waste that cannot be recycled, causing the residents nearby to complain about the health complications that they have had to face. Whereas in Kuala Langat, over 40 factories were found to be operating illegally and 30 of them were shut down after residents living nearby complained about the open burning that caused health problems. [READ MORE: Here’s how you can get someone fined RM500k for burning their trash outside] While the Malaysian government is taking measures to crack down on these illegal factories, they’re also finding a way to get rid of the waste that’s already here. 5. Malaysia plans to return most of the trash back to its origin countries. In order to nip the crisis in the bud, Malaysia has agreed to return nearly 60 containers with almost 3000 tonnes of waste back to Canada, US, Japan and the UK. Importers would be legally responsible under the Environment Quality Act 1974 if they do not take back their waste within 14 days. Section 34B clarifies that no one is allowed to dispose or give permission to the disposal of waste; or receive or give permission to receive waste on land or into Malaysian waters. It also specifies that anyone who is guilty of breaching this Act would be facing a fine not exceeding RM500,000 or imprisonment for a period not exceeding 5 years or both. Section 34B of the Environmental Quality Act 1975 ( in part) 1) No person shall - a) place, deposit or dispose of, or cause or permit to place, deposit or dispose of, except at prescribed premises only, any scheduled wastes on land or into Malaysian waters; b) receive or send, or cause or permit to be received or sent any scheduled wastes in or out of Malaysia; or c) transit or cause or permit the transit of scheduled wastes, [...] 4) Any person who contravenes this section shall be guilty of an offence and shall be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a period not exceeding five years or to both. YB Yeo has also assured that the ministry has imposed a freeze on the import of plastic waste categorised under HS Code 3915 which concerns the management and registration of imported plastic waste. Malaysia could cooperate with other countries to solve this crisis. The Basel Convention plays a huge role in regulating waste disposal by other countries in Malaysia. They’ve has been a part of this Convention since 1993. At the 14th Basel Convention held in 2019, Malaysia negotiated for certain amendments to be made in regards to the movement of plastic waste whereby certain categories of unrestricted plastic waste would require a “prior informed consent” (PIC). In other words, a special consent form has to be approved from the importing country before the plastic waste is allowed to be transferred to that particular country. This change could immensely reduce the amount of plastic waste being imported into Malaysia, as well as any other country affected by this. Under the amendments made during the Basel Convention, it was decided that any country could ship back the waste to countries of its origin. This would mean that Malaysia would not be in breach of the Convention if we were to do the same."
"Apa yang korang boleh buat kalau tuan rumah korang tak bayar yuran penyelenggaraan? [Click here for English version] Kitorang tahu korang mesti pernah baca banyak artikel pasal penyewaan (tenancy) dekat Asklegal atau mana-mana website lain. Biasanya, artikel-artikel tu ditulis berdasarkan sudut pandang tuan rumah atau untuk faedah diorang sendiri. Tapi jarang pula kita nampak artikel-artikel yang ditulis untuk manfaat pihak penyewa. Dan baru-baru ni, kitorang dah terima satu mesej dari seorang pembaca yang ceritakan isu dia dengan tuan rumah. Dia beritahu kitorang yang tuan rumahnya tak bayar yuran penyelenggaraan (management fees). Daripada ceritanya ni, dia boleh dikatakan bayar sewa on time setiap bulan, tapi tuan rumah pulak buat hal bila tak bayar yuran penyelenggaraan. Disebabkan masalah tu, sekarang kad akses dia berisiko akan disekat. Jadinya macam biasa, bila penyewa tak bayar sewa atau berkelakuan tak munasabah, korang akan ada cara yang sah di sisi undang-undang untuk halau diorang atau paksa diorang untuk bayar. Tapi sekarang, macam mana pula kalau tuan rumah sendiri yang tak jalankan tanggungjawab diorang? Sebelum kitorang bagi jawapan, ada benda penting yang korang kena bagi perhatian dulu… Ini semua ada kaitan dengan perjanjian sewaan Kalau korang nak tahu sama ada memang betul tuan rumah korang yang kena bayar yuran penyelenggaraan, salah satu caranya adalah korang kena tengok balik perjajian sewaan tu. Biasanya, bila kita berbincang pasal hak dan kewajipan yang berkaitan dengan tanah, korang kena tengok undang-undang tanah. Bagaimanapun, bila pasal penyewaan pulak, bendanya berbeza sikit sebab sewaan bermula dan berakhir berdasarkan perjanjian, ini bermakna ia pasal undang-undang kontrak dan bukannya undang-undang tanah. Jadi, kalau penyewa nak tahu pasal hak yang diorang ada, diorang kena tengok perjajian sewaan (a.k.a kontrak). Makanya, kalau penyewa nak tahu sama ada tuan rumah tu salah atau tak, sebab tak bayar yuran penyelenggaraan, diorang kenalah tengok balik perjanjian sewaan yang ditandatangi dulu. Kalau dalam perjanjian tu kata – tuan rumah yang kena bayar yuran penyelenggaraan, jadinya korang mungkin ada hak untuk suruh tuan rumah korang bayar yuran tu. Korang juga boleh ambil tindakan terhadap tuan rumah untuk minta diorang bayar. Sebab itulah, penting sangat untuk korang baca betul-betul kontrak/perjanjian sebelum sewa mana-mana rumah atau bilik. Dan dinasihatkan juga untuk korang semua pastikan segala terma penting ada dalam perjanjian dan ia juga disebut dengan jelas. Sebab tu lah, lebih baik jangan cuba-cuba buat atau DIY perjanjian penyewaan. [BACA LAGI: Is it safe to write your own contract in Malaysia? (Or sign one)] Bagaimanapun, kontrak tak boleh merangkumi semua keadaan dan kadang-kadang tu, kontrak hanya didiamkan dalam hal-hal tertentu. Sebenarnya, ada juga sewaan yang takde syarat-syarat bertulis - dalam erti kata lain, ia adalah perjanjian tak rasmi. Dalam kes macam ni, tak ada cara nak kata siapa yang ada hak kontrak untuk bayar yuran penyelenggaraan. Tapi jangan la risau sangat, sebab… Undang-undang kata – tuan rumah yang kena bayar yuran penyelenggaraan Seperti mana yang kita tahu, semua kediaman high-rise ada badan pengurusan yang menguruskan premis. Diorang dapat buat benda tu sebab adanya yuran penyelenggaraan dan kumpulan wang pelepas (sinking funds). Yuran-yuran ni selalunya dikenakan kepada pemilik rumah (tuan rumah) dan bukannya penyewa. Oleh tu, kalau perjanjian sewaan tak dipandang, undang-undang menyatakan tuan rumah yang kena bayar yuran penyelenggaraan. Kalau tuan rumah tak bayar, pihak pengurusan ada hak untuk ambil tindakan undang-undang terhadap tuan rumah. Berdasarkan Seksyen 25(1) Akta Pengurusan Strata 2013: “Setiap pembeli hendaklah membayar Caj, dan caruman kepada kumpulan wang penjelas, berkenaan dengan petaknya kepada badan pengurusan bersama bagi penyenggaraan dan pengurusan bangunan atau tanah yang dicadangkan untuk dipecah bahagi kepada petak-petak dan harta bersama di dalam suatu kawasan pemajuan.” Jadinya, kalau korang ada tuan rumah yang tak bayar yuran penyelenggaraan, apa yang korang boleh buat adalah maklumkan kepada pihak pengurusan pasal masalah tu. Beritahu diorang yang korang tu penyewa dan tuan rumah korang pula tak bayar yuran penyelenggaraan. Pihak pengurusan lepas tu akan ambil tindakan terhadap tuan rumah korang. Dan diharapkan diorang tu baik hati lah, dengan tak sekat kad akses korang. Atau alternatif lain, kalau korang tak ada masa, kesabaran iman dan duit… Korang boleh saman tuan rumah sebab langgar kontrak Kitorang tahu untuk sesetengah orang, saman ni tak lah sesuai sangat dan ia selalunya jalan terakhir untuk selesaikan masalah. Tapi, ada satu lagi benda yang korang boleh buat sebelum saman tuan rumah korang. Korang boleh je berhenti dari bayar sewa. Tapi tindakan ni juga tak berapa sesuai dan boleh keruhkan lagi hubungan korang dengan tuan rumah yang dah sekian keruh. Jadinya sekarang, berbalik pada cara yang satu lagi iaitu saman. Sebabnya, tuan rumah korang mungkin dah langgar kontrak dengan tak bayar yuran penyelenggaraan. Bila dia dah langgar kontrak, maknanya dia dah bagi sebab untuk disaman. Jadi, kalau penyewa ambil keputusan nak saman, dia mungkin boleh dapat dua benda dari tindakan tu – (1) duit atau (2) pilihan untuk batalkan kontrak dan dapat duit. Mahkamah nanti akan terlebih dulu putuskan sama ada pembayaran yuran penyelenggraan oleh tuan rumah ni terma penting atau terma kurang penting dalam perjanjian. Kalau mahkamah putuskan yang ia tak penting sangat, mahkamah akan bagi korang duit berdasarkan kerugian yang korang alami. Tapi, kalau mahkamah putuskan ia terma yang penting pula, penyewa ada pilihan untuk batalkan perjanjian, berpindah, dan tuntut ganti rugi kalau korang alami apa-apa kerugian."
"We went undercover to get an e-hailing (PSV) license. Here's what we found out  Back in July 2018, the Transport Ministry announced new regulations for the e-hailing industry, with one of the major requirements being that drivers irrespective of company (whether Grab, MyCar, or others) are required to have a PSV license. Things fell into full swing in April 2019, with more details on requirements being announced ahead of the July 12 deadline; afterwhich unlicensed drivers will no longer be able to drive for any e-hailing company. The requirements to getting the license is pretty straightforward. You should, in order: Get a medical check-up at an approved clinic Get your car checked at Puspakom if it’s more than 3 years old Sign up and attend a course at a selected driving school Sit for an exam based on the course Get license If you’re a full-time e-hailing driver who hasn’t started the process yet, we suggest you do it soon – we started on May 8th and were scheduled to take the test on May 30th. Assuming that we passed on the first attempt (more on that later), this means that the entire process took us 23 days. Here’s the time and cost breakdown based on our writer’s experience. Do note that the costs may be lower as some e-hailing companies provide subsidies and, needless to say, your milage may vary. We went for a medical checkup…. twice Time spent: 2 days Cost: RM20 (lower if the e-hailing company has subsidies) Finding a panel clinic that’s authorized to perform a check-up was easy enough… a Google search gave us several lists provided by e-hailing companies. Most of these clinics also specify allocated times that drivers can perform their checkups, which can make it a little tricky for drivers who hold full-time jobs. We found a clinic whose allocated hours coincided nicely with our work schedule but, when we got there, we were informed that there was no authorized doctor on duty at the time – there was no company stamp to certify the medical report. We were asked to return the next day at lunchtime. PROTIP: Call the clinic before you go The medical checkup consisted of urine, eyesight, blood pressure and respiratory tests; followed by a consultation with the doctor to follow through with some other questions presented in the JPJ L8A form (available from the clinic or downloadable here). The entire process took just under an hour to complete. Our car was under 3 years, so we didn’t have to go for a PUSPAKOM inspection, but you can read more about that process in a separate article [READ MORE: Here’s what e-hailing drivers need to know about getting their cars checked at PUSPAKOM] We had to beg a driving school to let us attend the lecture Time spent: 17 days Cost: – After (again) Googling a list of driving centers that offer the PSV training course, we started calling up centers that were closest to us to register…except that most of their phone lines were continuously engaged. After what seemed like an eternity of torture (maybe 45 minutes in reality) listening to the ~du du~ connecting tone, we finally got through to a driving school in PJ. The lady who answered informed us that they were fully booked for the next 2-3 weeks. We found out later that most schools in the Klang Valley hold only one PSV training session a week, which may explain the long waiting list. The lady was nice enough to offer to squeeze us into their first available slot – which was in two weeks – but we declined thinking that we would have better luck at another academy. Bad idea. Making calls in between work obligations, it took us another two days to call other schools in the Klang Valley area; and each told us that they were fully booked for the next few weeks. PROTIP: If the waiting time is under 3 weeks, TAKE IT Eventually, we had to sheepishly call up the first school to see if that slot they offered us was still available. After a small amount of groveling, the lady squeezed us into the original slot that she offered us. But wait, there’s a plot twist. While waiting for our session, the Ministry of Transport allowed e-hailing companies to conduct the PSV training sessions online (e-PSV). These online courses will be provided by the respective e-hailing company, who also have the option of making e-PSV courses free. For instance, Grab is now inviting drivers to take their training online, free of charge. You’ll still need to take the medical check-up and PUSPAKOM inspection (if applicable) though. PROTIP: If the company you drive for has a e-PSV course available, TAKE IT We didn’t know this at the time but, then again, it would have made for a much less interesting article. The lecture wasn’t what we thought it would be Time spent: 6 hours (lecture duration) Cost: RM149 (lower if the e-hailing company has subsidies) We arrived bright and early for the 8:30am session, but late arrivals resulted in the session starting later than scheduled. In a way, this worked out for us because it allowed us to socialize and meet some of the other drivers, such as a Datuk who became a Grab driver because he got bored running his business and wanted to get out of the office more. When the lecture started at 9am, we counted 51 people in attendance. The lecture started with the distribution of the Buku Panduan Pelatih, a booklet which contains all the information covered in the lecture. Essentially, this is your CliffNote in preparation of the PSV test. We also had to mark our attendance by scanning our thumbprints, and the school put a lot of effort into reminding everyone to scan their thumbs after attending the lecture, otherwise the attendance would be void. PROTIP: Don’t forget to scan your thumbprint AFTER the lecture! The lecture, only conducted in BM, is mainly broken down into 4 modules; with activities and role-playing integrated: An introduction to the taxi industry Entrepreneurship, technology, and financial planning Customer service Laws and guidelines (our favorite module, to nobody’s surprise) Perhaps due to differing expectations on what a lecture for e-hailing drivers should be like, we were quite surprised at how much the modules were centered around the taxi industry. On one hand, it seemed like it was intended to teach e-hailing drivers the basics of driving a public service vehicle and, on the other; to ease taxi drivers into the idea of incorporating e-hailing services into their line of business. While we won’t go through the contents of the lecture in detail, one fun/interesting part that we want to highlight is a motivational slide about entrepreneurship that referenced Robert Kiyosaki’s Rich Dad Poor Dad, which we thought was pretty funny since his company filed for bankruptcy in 2007; along with other criticisms of his financial advice (some of which are illegal). Another was a series of slides (one of which is used in our featured image) using Japanese taxi drivers as a benchmark of excellent service. We were also told that e-hailing drivers have to follow the same dress code as taxi drivers – closed-toe shoes and black slacks, with an open choice of a ‘sensible’ shirt. A total of three breaks were called, including one for lunch, and we scanned our thumbs for the final time at 6pm. We didn’t know when we could sit for the test Time spent: 1 hour exam, 7 day wait Cost: – (Included in lecture fees) After the lecture, some of us asked the staff at the driving school if we could book a specific day for the test. We were told that, due to the overwhelming number of students, the school will call us when a slot is available. In other words, we had no idea when we’ll be sitting for the test. On May 29th at 1:30pm, we received a Whatsapp message from the school informing us that our exam was on May 30th at 8am, literally giving us less than 24 hours to prepare for it – bearing in mind that it’s a Thursday and we still had our regular day job. We were also reminded to bring a blue pen along with our original IC and driving license. PROTIP: Bring a blue pen, IC, and driving license The test consists of 60 multiple choice questions with a passing mark of 48/60, and is only available in Bahasa Malaysia. We won’t discuss the questions for obvious legal reasons, but would like to point out that Robert Kiyosaki does make an unexpected appearance. We may lose 100,000 e-hailing drivers by July 12th Overall, we didn’t really have an issue with the content of the courses as the information presented may come in useful in bridging the gap between old-school taxis and e-hailing services. However, it seems that the biggest hurdles that may prevent drivers from going through the process – especially part-time drivers – are logistical, especially in regards to the cost, long and sometimes unpredictable wait times, and confusion in terms of the process. This seems to be echoed by other e-hailing drivers, who also pointed out the high failure rate for the PSV test. As a result, the Malaysian E-hailing Drivers Association estimates that half of the 200,000 e-hailing drivers in Malaysia may opt out after the July 12th deadline. For customers, this may result in higher waiting times and fares: “If there are fewer of them on the road due to failure to get the PSV licence before the deadline, then the fares will surely go up. During peak hours, there won’t be enough drivers available and the waiting time will also be much longer. Our users will be angry for sure.” – Mohd Faizul Ezmin, Dacsee representative, as quoted by New Straits Times. We aren’t sure if our 23-day journey was the norm or the exception (Feel free to let us know in the comments), but perhaps the efforts made by both the Ministry of Transportation and e-hailing companies to reduce the cost and effort required can be encouraging for drivers to start the process. As the saying goes, when there’s a wheel, there’s a way…. right?"
"TNB surcharge - Can you get your money back if you have already overpaid?  Last month, residents all over the country started noticing a sudden surge in their electricity bills and, at the time of writing, over 14,000 reports have been made to TNB. TNB acknowledged the billing problems and CEO Amir Hamzah Azizan mentioned there were several reasons behind the surge, for instance; some account holders were billed longer than the usual 30-day cycle cases of old and faulty TNB meters replacement of new meters an increase in consumer’s usage, and; human error where data was logged wrongly. If your bill has been affected as well, there are several avenues as to how you could lodge a complaint. Firstly, what should you do if you notice an error in your bill? If you’ve noticed a surge in your electricity bill in the past month, you should actually recheck your bill via TNB’s website or through their MyTNB app . You might discover that your online bill may not be identical to your printed bill. If the amounts are different, you can call their Careline at 15454 or email them at tnbcareline@tnb.com.my where you can get clarification about the possible discrepancy in your bill. However, TNB actually recommends that you print your online bill and bring it along with your printed bill to any Kedai Tenaga closest to you to get a confirmation on the error made. This is because only the personnel at Kedai Tenaga are authorized to access your usage data. Once you’ve gotten a confirmation of a discrepancy, you would be able to lodge an official report. Can you get your money back if you’ve already paid? If you’ve already paid for the surge, you would be entitled for a refund as TNB is bound by the Electricity Supply Act 1990 under Section 9C(1)(c). Under the authority of this Act, TNB would have to comply to guidelines set by the Energy Commission on the standards of performance for their services towards customers which also includes any procedures of compensation in the case there is a breach. Section 9C 1(c) of the Electricity Supply Act 1990 (in part) 9C. (1) The Commission may, from time to time, issue codes, guidelines or directions on such standards of performance of supply and services to be implemented by a licensee including procedures for— [...] (c) procedures for the compensation of consumers in case of a breach of the standards of performance or a breach of any ofthe licensee’s obligations under the Act; and [...] In other words, you’re legally entitled to a refund or compensation of some sort. However, if you did not receive any feedbacks or refunds after making an official complaint, you can lodge a report to the Energy Commission via the microsite that was launched to provide consumers multiple steps to lodge a complaint. Now, can TNB be held legally responsible for the negligence? Even though TNB may not have purposefully overcharged or intended for an error to happen, they can still be held legally responsible. It’s kinda like how, in a car accident, you will still be fined if you were the one who caused the accident, even though you had no intention to do it. So in TNB’s case, they can be fined for failing to meet consumer requirements, and for negligence. According to YB Yeo Bee Yin, TNB was deemed to be in breach of Section 9C (1) whereby they have failed to meet consumer requirements by failing to provide a smooth service due to the discrepancies in consumer’s electricity bills which caused the surge. The section details particularly that TNB would have to follow the Energy Commission’s guideline to; reasonably meet consumer’s requirements. handle consumer complaints and disputes As of 31st May 2019, YB Yeoh Bee Yin has confirmed that TNB would face a penalty even after they’ve provided compensation under Section 37 (15) of the Act for breaching Section 9C(1) where they would face a fine not exceeding RM25,000Section 37 (15) of the Electricity Supply Act 1990 (in part) 37. (15) Any person- found guilty of any offence against this Act for which no penalty is expressly provided shall, on conviction, be liable to a fine not exceeding twenty five thousand ringgit and, in the case of a continuing offence, to a fine not exceeding five hundred ringgit for every day or part of a day during which the offence continues after conviction. However, there would also be an additional RM500 penalty for each day they fail to provide compensation to a consumer. TNB has extended their hours to enable customers to lodge complaints. TNB has assured that the operational hours for Kedai Tenaga has been extended from 8am – 6pm, from Monday to Saturday with the exception of public holidays to handle customer queries and complaints. Here is the list of operational hours for all the Kedai Tenaga across Malaysia. The TNB Careline operative hours have also been extended from 7am – 11pm every day including public holidays with the exception of Sunday. [READ MORE: 5 consumer rights you didn’t know you had in Malaysia]"
"Kalau 'ex' anda dedahkan gambar lucah korang, boleh ke dia disaman? [Click here for English version] Sebagai rakyat Malaysia – kebogelan awam (public nudity) atau atau apa-apa benda yang lucah (macam imej bogel) adalah satu perkara yang taboo dan sensitif dalam masyarakat. Ini kerana, ramai di antara kita yang sedar dengan kesan undang-undang terhadap tindakan yang macam tu. Tapi sebelum bincang lebih lanjut, kita juga kena tahu perbezaan antara kebogelan awam (public nudity) dengan kebogelan peribadi (private nudity). Kebogelan awam (public nudity) – Secara mudahnya boleh diterangkan dengan satu kes yang jadi pada Mac lepas. Bila mana seorang wanita transgender dah bertindak berjalan/menari dalam keadaan berbogel di Kuala Lumpur. Benda ni dah buatkan ramai yang marah dan ada juga yang ambil gambar wanita tu. Gambar tu kemudiannya mula tular di internet dan akhirnya memaksa polis ambil tindakan yang sewajarnya. Kebogelan peribadi (private nudity) – Kal ni boleh jadi contohnya bila seseorang tu hantar gambar ‘nakalnya’ kepada kekasihnya. Walaupun kita tahu yang benda ni boleh menyalahi undang-undang, tapi masih ramai yang buat. Dan hal ni membawa kita kepada dua situasi. Macam mana kalau korang kongsi gambar lucah korang sendiri? Macam mana kalau korang kongsikannya dengan seseorang dan… orang tu bocorkan pulak? 1. Bila korang hantar gambar lucah di WhatsApp, adakah korang dah langgar undang-undang? Kalau pihak berkuasa dapat tahu, korang akan berdepan dengan masalah. Ini kerana, secara umumnya, memaparkan apa-apa je imej korang yang tak senonoh adalah satu idea yang teruk sebab ia boleh digunakan terhadap korang di mahkamah nanti sebagai bahan bukti. Jadinya, tak kiralah korang post gambar tu di mesej peribadi WhatsApp, atau dekat akaun peribadi media sosial korang, korang masih lagi boleh didakwa di bawah Seksyen 292, Kanun Keseksaan kerana mengedar dan memiliki bahan pornografi. Seksyen 292 Kanun Keseksaan (Tiada terjemahan rasmi, diterjemah oleh Asklegal): “Sesiapa sahaja – (a) menjual, membolehkan disewa, mengedar, mempamerkan secara terbuka atau dengan apa cara memasuki peredaran atau untuk tujuan jualan, sewa, pengedaran, pameran awam, atau peredaran membuat, menghasilkan atau memiliki dengannya apa-apa buku lucah, risalah, kertas, lukisan, representasi, atau figura atau apa-apa sahaja objek lucah lain… boleh dihukum dengan penjara selama tempoh yang boleh sampai tiga tahun atau dengan denda atau kedua-duanya..."" Dalam kata lain, Akta ni merangkumi kedua-duanya sama ada gambar tu dipamerkan secara awam atau peribadi, yang mana boleh membuatkan korang dipenjara sampai tiga tahun, didenda atau kedua-duanya. Tambahan lagi, Suruhanjaya Komunikasi dan Multimedia Malaysia (SKMM) iaitu badan kebangsaan yang mengawal dan menyelia industri komunikasi dan multimedia di Malaysia, boleh mendakwa korang di bawah Seksyen 233(1), Akta Komunikasi dan Multimedia 1998, yang menyatakan: (1) Seseorang yang – (a) dengan menggunakan mana-mana kemudahan rangkaian atau perkhidmatan rangkaian atau perkhidmatan aplikasi secara sedar – (i) membuat, mewujudkan atau meminta-minta; dan (ii) memulakan penghantaran, apa-apa komen, permintaan, cadangan atau komunikasi lain yang lucah, sumbang, palsu, mengancam atau jelik sifatnya dengan niat untuk menyakitkan hati, menganiayai, mengugut atau mengganggu orang lain… melakukan suatu kesalahan. Akta ni mengawal penggunaan kemudahan rangkaian atau perkhidmatan rangkaian yang digunakan secara salah. Jadi, kalau korang ada hantar gambar-gambar lucah di laman media sosial atau fikir benda tu okey sebab saja je nak tunjuk gambar separuh bogel… korang boleh didakwa di bawah akta ni. Jika sabit kesalahan, korang boleh didenda tak lebih dari RM50,000.00 atau dipenjara setahun atau kedua-duanya bergantung pada budi bicara mahkamah. Ini bermakna, menghantar apa-apa je benda lucah adalah satu kesalahan, walaupun korang hantarnya kepada pasangan atau post di akaun peribadi media sosial korang. Jadi, ini membawa kita ke jawapan untuk soalan kedua… 2. Macam mana kalau pasangan/bekas pasangan bocorkan gambar lucah korang? Menghantar gambar lucah diri korang kepada pasangan – yang ada potensi untuk jadi bekas pasangan/kekasih suatu hari nanti – adalah satu risiko kerana gambar-gambar tu nanti boleh memakan diri korang. Jadinya, kalau ada gambar-gambar lucah korang tersebar di internet dan korang nak sekatnya dari beterusan, SKMM boleh sekat gambar/video tu dari boleh diekses oleh orang awam. Cumanya, korang kena buat laporan dulu untuk membolehkan ia disekat. Korang lepas tu boleh mulakan posiding undang-undang terhadap ‘ex’ korang yang post gambar-gambar tu. Ini kerana, sesiapa yang membocorkan gambar lucah orang lain boleh didakwa di bawah Seksyen 292 Kanun Keseksaan. Akta ni pada dasarnya terpakai untuk kedua-duanya sama ada pemilikan dan pengedaran bahan pornografi. Seperti yang dinyatakan di awal tadi, ia boleh membawa hukuman sehingga tiga tahun penjara, denda atau kedua-duanya jika didapati bersalah. Selain tu, bekas pasangan korang yang edarkan kandungan pornografi (gambar lucah korang) juga boleh dikenakan dakwaan tambahan di bawah Seksyen 211(1) Akta Komunikasi dan Multimedia 1998 iaitu: “Tiada pemberi perkhidmatan aplikasi kandungan, atau orang lain yang menggunakan perkhidmatan aplikasi kandungan, boleh memberikan kandungan yang sumbang, lucah, palsu, mengancam atau jelik sifatnya dengan niat untuk mengacau, mendera, mengugut atau mengganggu mana-mana orang...” Kesalahan ini membawa denda tak lebih RM50,000.00, penjara sehingga setahun atau kedua-duanya kerana mengedarkan kandungan yang menyinggung perasaan. Tapi walaupun SKMM boleh menyekat gambar korang dari diekses orang awam, ia tak bermakna yang ia akan terus hilang dari internet. Ini kerana, ada satu kes dikenali sebagai “The Fappening” yang berlaku beberapa tahun lepas. Kalau korang tak pernah dengar pasal benda ni, ia sebenarnya adalah kejadian di mana koleksi hampir 500 gambar bogel pelbagai selebriti (kebanyakannya wanita) dah dipaparkan di internet akibat isu keselamatan iCloud. Ini adalah kes pencerobohan privasi peribadi yang besar, dan kebanyakan gambar-gambar tu masih lagi beredar di internet. Jadi, sejauh mana ia selamat untuk korang post gambar di media sosial? Penyelesaian terbaik adalah dengan pencegahan Seperti mana yang orang selalu cakap – “mencegah tu lebih baik dari mengubati”. Oleh tu, ada beberapa langkah yang boleh diambil untuk elakkan perkara tak baik jadi kepada korang. Dan hal ni terpakai kepada semua, tak kiralah korang pakai Android atau IOS. Korang boleh tetapkan kata laluan di telefon korang sebagai langkah permulaan. Tapi cara ni tak la menjamin keselamatan yang sepenuhnya. Jadi, ibu bapa pun kena mainkan peranan dengan pantau aktiviti-aktiviti yang anak diorang buat di internet. Sebabnya, ada kes kanak-kanak hantar gambar lucah kepada orang dewasa sebab dah ‘di-groom’ untuk buat macam tu. Kalau korang tak dengar pasal ‘child grooming’ atau pengantunan kanak-kanak sebelum ni, ia adalah tindakan penyalahgunaan di mana seseorang buat hubungan emosi untuk mengeksploitasi seorang kanak-kanak dengan cara seksual. Hal ni boleh dilakukan secara langsung oleh orang, atau melalui atas talian. Oleh itu, kerajaan Malaysia dah meluluskan Akta Kesalahan-Kesalahan Seksual Terhadap Kanak-Kanak 2017, di mana Seksyen 12 dalam Akta ni menjadikan aktiviti pengantunan kanak-kanak oleh orang dewasa sebagai satu jenayah. Di samping itu, kerajaan kini dah memperkenalkan pendaftaran pesalah seks kanak-kanak dengan menyenaraikan lebih 3,000 pedofilia untuk membendung jenayah ini. Tapi bila ia sampai pasal isu keselamatan secara amnya, mungkin cara yang terbaik adalah hindari diri korang dari menghantar apa-apa gambar yang tak senonoh. Sebab, kita tak tahu siapa yang akan dapat gambar-gambar tu nanti. Jadinya, kalau tiba-tiba nanti telefon korang kena curi atau hilang dan maklumat peribadi korang (termasuk gambar) dah diedarkan kepada orang lain. Lebih baik korang baca artikel kitorang ni untuk dapatkan pencerahan dan melindungi diri korang. [BACA LAGI: How to avoid identity theft if your phone gets lost or stolen in Malaysia]"
"Here's how you can get someone fined RM500k for burning their trash outside.  We’ve all been pretty irritated by that one particular neighbour who keeps burning his trash outside, making your housing area all hazy and smoggy. Imagine heading out of your house and the first thing you could smell is the smoke from his burning pile of trash. Unsurprisingly, with the rampant increase in cases reported whereby there were over 3000 cases in March 2019 alone, you’re definitely not the only one going through this. But… are there any existing laws that prohibits open burning? Fret not! Malaysia has a pretty stringent law that actually strongly prohibits open burning. The government has enforced the Environmental Quality Act 1974 which is basically your best possible chance to actually take action against that annoyingly stubborn neighbour of yours. Under Section 29A (1) of the Act which clarifies that people are not allowed to permit or cause open burning on any premises and whoever defying Section 29A(1) would be convicted under Section 29A(2) whereby they’d be liable to a fine not exceeding RM500,000 or jailed for no more than 5 years or… BOTH! Yeap! RM500,000 is A LOT of money and no one would want to risk getting caught if such heavy fines and a lengthy time in prison is imposed right? But then again, why are open burning cases still on the rise even with such heavy penalty? Minister Yeo Bee Yin from the Ministry of Energy, Technology, Science, Climate Change and Environment has said, in an interview with The Straits Times, that the Department of Environment has been found to be under equipped to regulate enforcement as she was quoted saying, “Only two or three weeks ago, I realised that the DoE doesn't even have cars to conduct enforcement. That's ridiculous! And, they don't even have enough equipment”. The penalties on those who are found guilty were also deemed to be high enough and there was no need for a reform. Imaginably, this is why it’s actually important for you to report anyone who has been burning their garbage outside, not only would you be reporting that uninformed neighbour of yours, you would also be highlighting the slew of possible reoccurrences that could be prevented with proper enforcement. But, what if I get accused even if I didn’t do it? Oops! If you end up seeing yourself at the other end of the spectrum where you’re accused of open burning and you’re facing charges under Section 29A of the Act, there are some leeway within the Act under Section 29C whereby: “… it shall be a defence if the person, owner or occupier of the premises proves- that the open burning occurred outside his control or without his knowledge or connivance or consent. Don’t worry! All you would need to do, would be to prove that you’ve taken all reasonable precautions to avoid committing such a crime, under Section 29C. After all, we’re all innocent until proven guilty. Does this mean that open burning for religious purposes would get banned? Yikes! Does this mean that burning hell notes or incense sticks are banned in Malaysia too? Well, as stringent as this law may seem, there are some exceptions that the Department of Environment has made that allows certain types of open burning notably; Burning of diseased agricultural land Open burning from religious or cultural activities ( incense sticks, hell notes, Indian poojas, etc..) Cremation Barbecue or grilling purposes ( Aye, looks like Saturday night barbecues are still on after all) Flaring ( for the purpose of extracting oil) Even though, the law excludes certain types of open burning, you could be mindful by finding ways to minimise air pollution. For instance, during barbecues you could use an electric grill instead of a charcoal based burner. As for religious or cultural events, you could burn your incense sticks and joss papers in a closed furnace with a proper filtering system instead of out in the open air. However, just because burning for religious purposes are still allowed does not mean that the prohibitions set by the Department of Environment should be ignored. There are certain things that are still big no- nos under the Environmental Quality Act 1974 such as : Any kind of open burning on peat soil Open burning anywhere within 30km radius of the Kuala Lumpur International Airport So, here’s the real deal, WHO can you actually report the incident to? In case, if the fire is uncontrollable and you or anyone else around you are at risk of getting hurt, you should definitely contact the Fire and Rescue Department Malaysia. However, if it’s just the basic garbage ‘bonfire’ that’s been bothering you for a long time and has probably shrouded your housing area with its own personalised haze, you could report it either to your local council (Majlis Perbandaran) or the Department of Environment via their hotline. The official portal of the Department of Environment verifies under Section 29A of the Act that the Department of Environment are not the only ones who’re able to investigate, many other departments are also authorised to conduct investigations, specifically: Fire and Rescue Department Malaysia Royal Malaysian Police local councils ( Majlis/Dewan Bandaraya and Majlis Perbandaran) This makes reporting such incidences easier since there are more departments you could seek help from. The numbers to your respective Majlis Perbandaran and the hotline for the Department of Environment is linked right here."
"PERHILITAN wants to improve wildlife protection laws, and they want your suggestions! A few days into June 2019, social media was abuzz with the news of a sun bear that was spotted in a condo in Kuala Lumpur. Rewind a few days before that incident, and you might remember reading the news of three elephants that were poisoned in Johor. Rewind again to a whole month before that, and you might also recall seeing pictures circulating on Facebook of a dead clouded leopard that looked like it had been shot in the head. Most of us who read these news would have naturally felt very upset and angered. Some of us would have even questioned whether the authorities are doing anything about this and whether our wildlife conservation laws are strict enough. PERHILITAN, which is the Department of Wildlife and National Parks in Peninsular Malaysia agrees that those laws AREN’T good enough. And so, they announced that they wanted to amend Malaysia’s wildlife laws, but they didn’t want to do it alone. While they will be incorporating changes suggested by other government agencies and NGOs, they also want to hear ideas from lay people or anyone who has an interest in wildlife conservation. If you want to give your suggestions right away, click on this link and scroll to the bottom where you’ll see a space for comments. Leave your comments and suggestions there. The deadline is on the 14th of June 2019. Otherwise, read on to see what limitations PERHILITAN are facing with the current laws, and what they’re hoping to change. There’s a LOT to change, so first thing to do is... Out with the old, in with the new The current Wildlife Conservation Act 2010 has 136 sections it in. Out of that, PERHILITAN has said that it will be amending 78 sections and adding 10 new sections to the Act. So, this is definitely a massive revamp. But, why such a drastic change? PERHILITAN says that currently, the Act has not done much to prevent the extinction of certain species nor has it stopped or significantly reduced illegal wildlife trade. The main objective of the amendments is to bring about laws that can actually do something about these issues before it is really too late. So, parts of the Act that don’t seem to be effective or are redundant will be removed and certain laws that should exist but don’t, will be added into the Act. Many changes have been suggested in PERHILITAN’s consultation paper, but some were highlighted and reiterated by the department. They mostly involve... Heavier punishments and heftier fines In its recommendations for change, PERHILITAN mentioned that the Act does not stipulate punishments or penalties for many types of illegal activities involving wildlife. Even if the are penalties, they don’t seem to be serving their purpose well. Here are some of them: 1. Unable to arrest offenders without a warrant Almost all offences in the Wildlife Conservation Act come with a jail term, because they are mostly serious offences (like poaching or hunting). The problem lies in how long the jail term is. If a jail term is only for a year or two, PERHILITAN officers (or the police) are unable to arrest the offender without a warrant. Only if the jail term for that particular offence is for 3 years and more can an officer arrest the offender on the spot. The majority of the offences in the Act come with only a year or two of jail sentence, and this results in many offenders running scot-free because officers cannot get a warrant to arrest them immediately. PERHILITAN’s suggestion is to increase the jail term for all offences to a minimum of 3 years, so that more offenders can be caught. 2. Current laws don’t deter repeat offenders For cases like poaching and the selling of wildlife, the current penalties don’t seem to be doing much in preventing people from doing them again. An example given in the consultation paper was of some foreign poachers who had attempted to smuggle elephant tusks and tiger bones. These poachers had been fined RM 250,000 and given a jail tern of 2 years in 2013. Just 4 years later, they had again tried to smuggle elephant tusks and were given an option of paying a fine of RM 100,000 or serving a jail sentence of one year. They were able to evade jail time by paying the fine. This goes to show that people aren’t afraid to repeat the same offences when it comes to illegal wildlife trade because the laws seem to be pretty lenient. PERHILITAN wants the penalties for serious offences like this to be strict enough that people would not dare to break these laws again and again. 3. Harder to control the spread of disease This may not apply to animals that live in forests per se, but it’s more for owners of exotic pets. These animals sometimes carry viruses or other diseases with them and it often goes unnoticed till the later stages. These diseases can also spread to other animals and human beings and by that point, it is often much harder to control and cure. At present, there is no law against owners of exotic pets who fail to care for their pets by vaccinating them. PERHILITAN suggests that there should be a penalty on such careless owners, especially if the public’s safety is a stake. 4. No punishment for those who falsify documents It must be noted that owning exotic pets in itself isn’t a crime, owning them without a license is. From 2013-2018, PERHILITAN issued 21,369 licences to people who wanted to own exotic pets. But a large number of people have been said to have illegally obtained their licenses or have falsified their permits. This makes it hard for PERHILITAN to go after them because: it’s hard to tell which documents have been falsified there are NO laws against people who falsify licenses and permits In its recommendations, PERHILITAN says that the revamped Act should include a penalty for such people. An example given by them was the International Trade in Endangered Species Act 2008. In this Act, falsifying documents is an offence and the penalty is a fine of one thousand ringgit, a seven year jail term, or both. PERHILITAN says that if this Act has a law against falsifying documents, there’s no reason the Wildlife Conservation Act shouldn’t have one. No more getting off the hook easily Another issue faced by PERHILITAN is that they cannot catch everyone in the illegal wildlife trade. The Act makes it an offence to illegally own these animals or to remove them from their habitats sale. There is no mention or any sort of penalty for people who promote or advertise the sale of these animals as these people do not necessarily breed these animals themselves. Because of this, PERHILITAN is unable to do anything about Instagram or Facebook accounts who advertise the sale of these animals. They can only sit back and watch, and that of course, must be extremely frustrating. These ‘middle men’ are the ones who actually play the most important role, because without them, most people would not know where to buy these animals from. So PERHILITAN is suggesting that a law should be created that would enable them to catch people who advertise the sale of exotic pets. This way, more people in the illegal wildlife trade will be held responsible and it would be harder for the trade to thrive. Better mediums to reach out for help PERHILITAN says that a lack of ways to reach them makes it harder to catch poachers or to rescue animals. Currently, the fastest way to reach them is via their hotline, and this alone does not suffice. So, they’ve suggested for social media to be another avenue for people to reach them. They do have Facebook and Twitter accounts, and these should be utilized by public more because: people can report an issue with a click of a button this may also help protect the person’s privacy the person can include photo or video evidence, which would be impossible to do via the hotline this will help PERHILITAN monitor cross- border activities, as most poachers are from neighbouring countries Here’s how you can help change the Wildlife Act Now that we’ve seen all that’s wrong with the current Wildlife Conservation Act, we know that something has to be done before it’s too late. As we mentioned earlier, PERHILITAN wants your input and suggestions on how the Act can be further improved. So if you own a pet, or you just love animals on the whole, your ideas will be of much help! Click on this link and scroll to the bottom where you’ll see a space for comments. Leave your comments and suggestions there. The deadline is on the 14th of June 2019 so if you’re reading this and there’s still time left, head over and do your part!"
"Boleh ke korang tebang dahan pokok yang masuk kawasan rumah korang... dan ambil buahnya? [Click here for English version] Rasanya macam dah lama pokok mangga jiran korang tu tumbuh di sebalik pagar rumah korang. Sebenarnya, dah lama dah korang bersabar dengan hal ni, sampailah korang rasa sakit hati sebab pokok tu dah menghalang pandangan korang dan juga membahayakan. Masa inilah korang tertanya-tanya sama ada korang boleh dapat masalah tak – kalau korang tebang dahan-dahan pokok yang menjuntai masuk kawasan rumah korang tu. Selain tu, pokok tu juga berbuah banyak dan ada yang jatuh dalam kawasan korang. Korang pun lepas tu rasa macam nak bagi balik buah-buah tu kepada tuannya. Tapi dalam masa sama, boleh tak korang ambil buah tu untuk diri sendiri? Benda ni mungkin dengar macam remeh je dan undang-undang macam tak ada kaitan langsung dengannya. Tapi… Sebenarnya, ada undang-undang pasal hal ni Bila dahan pokok jiran korang membesar dan masuk ke dalam kawasan korang, ia dikenali sebagai “overhanging branches”. Sebenarnya, kebanyakan negara di dunia ni ada undang-undang pasal overhanging branches. Di Australia contohnya, setiap negerinya ada undang-undang berbeza tentang isu ni. Di Malaysia pula, hal ni melibatkan undang-undang kacau ganggu persendirian (private nuisance). Ini kerana, dahan pokok yang membesar sampai masuk ke dalam kawasan korang tu dikira sebagai kacau ganggu. Secara takrifnya, kacau ganggu adalah gangguan yang menyalahi undang-undang dengan penggunaan tanah. Terdapat tiga elemen kacau ganggu persendirian, yang mana semuanya kena dipenuhi – kalau korang nak jiran korang tu bertanggungjawab: Plaintif (korang) pemilik tanah atau mempunyai hak untuk mendudukinya; Defendan (jiran korang) sebenarnya dah bertindak dengan cara yang mengganggu kesenangan plaintif dan gunaan hartanah miliknya; dan Gangguan defendan cukup ketara dan tak munasabah. Jadi, dengan membiarkan pokok diorang membesar sampai masuk ke dalam kawasan korang, diorang mungkin bertanggungjawab terhadap ganggu kacau persendirian kalau dahan-dahan yang berlebihan tu memberi kesan terhadap suasana dan keadaan rumah korang. Kalau ia menimbulkan risiko keselamatan pula, ia menambahkan lagi memungkinkan untuk jiran korang bertanggungjawab. Tapi macam mana pula kalau korang tak suka pokok tu tumbuh ke dalam kawasan korang sebab ia cuma menghodohkan dan merosakkan pemandangan dari rumah korang? Dalam hal ni, undang-undang mengatakan… Kalau dahan tu menjuntai masuk kawasan korang, ia dikira korang punya Jadi, walaupun korang tak saman jiran korang sebab buat kacau ganggu persendirian, korang masih boleh buat sesuatu pasal dahan-dahan tu atau buah-buah yang jatuh dalam kawasan korang. Ada beberapa kes pasal hal ni di banyak negara dan cuba kita tengok yang paling dekat dulu. Pada pertengahan tahun 2016, Mahkamah Tinggi Singapura ada buat perbicaraan kes antara dua jiran. Seorang wanita ni dah biarkan pokoknya tumbuh sampai ke halaman jirannya dan dahan-dahan tu pula membahayakan jirannya, terutamanya sebab ada anak-anak kecil di rumah. Bila jirannya upah orang untuk potong pokok tu, wanita tadi halang jirannya dengan cabut kunci dari kren yang digunakan untuk memotong pokok tu. Mahkamah lepas tu buat keputusan yang jirannya ada hak untuk tebang mana-mana dahan yang masuk dalam kawasannya dan wanita tadi bersalah sebab menghalang diorang dari berbuat demikian. Ada satu lagi kes yang dah lama sangat berlaku iaitu pada tahun 1894. Kes ni dikenali sebagai Lemmon v Webb dan Mahkamah England memutuskan: Seorang jiran boleh menebang dahan-dahan yang memasuki tanahnya tanpa memberi notis kepada pemilik pokok itu dengan syarat dia boleh melakukannya tanpa memasuki tanah orang lain. Jadi, korang sebenarnya boleh je tebang mana-mana dahan atau ranting yang masuk kawasan korang (atau ambil buah-buah yang tumbuh dari dahan-dahan tu). Tapi… Korang tak boleh ambil apa-apa je yang tumbuh di atas kawasan jiran korang Jadinya, bila sesuatu tu tak lagi ada dalam kawasan korang, korang takde hak untuk buat apa-apa dengannya. Sebab, ia tak lagi menyebabkan sebarang halangan terhadap hartanah korang. Apa je yang ada dalam kawasan jiran korang tu hak diorang dan kalau korang keluarkan apa je yang ada kat sana, korang boleh disaman sebab menceroboh. Seperti mana yang dah dikatakan dalam kes Lemmon tadi… kalau korang nak buat sesuatu, ia mestilah “tanpa memasuki tanah orang lain”. Makanya, tindakan panjat pagar dan curi buah dalam kawasan jiran korang juga akan dikenali sebagai mencuri, sebab ia adalah hartanah orang lain. Korang mesti tak nak kena tangkap mencuri, sebab hukumannya berat kan? Kita tak cakap pasal denda kecil, tapi ia boleh melibatkan hukuman penjara! Sesetengah pokok adalah milik kerajaan Hampir semua kawasan perumahan ada pokok-pokok yang tumbuh berhampiran dengan laluan pejalan kaki atau di kawasan luar rumah. Dan salah faham yang biasa jadi adalah, disebabkan ia tak tumbuh dalam kawasan mana-mana rumah – tak ada sesiapa yang miliki pokok-pokok tu dan sesiapa pun boleh ambil buah atau bunganya. Tapi ramai mungkin tak tahu bahawa mana-mana tumbuhan yang tumbuh di ruang awam adalah milik Majlis Perbandaran di kawasan tu. Jadi, mengambil apa-apa bahagian dari tumbuhan atau pokok tu sebenarnya salah dan ada penalti untuknya, dan ia berbeza dari majlis bandar ke majlis bandar. Maka secara asasnya... kalau korang ambil atau potong mana-mana bahagian pokok, pastikan yang ia berada di atas hartanah korang. Kalau tak, sebaiknya korang tak kacau pokok-pokok ni dan biarkanlah ia hidup dengan aman."
"What disabilities must you have to legally park in a OKU parking spot? In Malaysia, like most countries, designated disabled spots are reserved for disabled drivers who have a valid disabled permit. We’re pretty sure everyone is more than familiar with the concept of disabled parking spots in Malaysia – larger than average parking spaces with a sign depicting a person sitting in a wheelchair painted on it. Unfortunately, we may also be familiar with seeing cars that have no disabled stickers parked in them or, worse, someone with no visible disabilities getting in or out of the car. While there have been civic-conscious Malaysians who have confronted the drivers of these cars, the usual response is either to be asked to mind their own business or to move away from the lot because they’ve been called out. There have also been some misunderstandings on what kind of OKU (yes, there are different categories) are allowed to park in these lots, as evidenced by a letter from a person with a mentally-disabled child being told that the lots were only for people with wheelchairs. So… Who’s actually allowed to use disabled parking lots? At the base of it, a driver requires 2 things to use a OKU parking spot: An OKU sticker (displayed on the vehicle) An OKU card (to be produced on request or displayed in the car) However, it should be mentioned, that not all disabilities are physical, and there are separate categories for those mental disabilities as well. The OKU card is issued by the Social Welfare Department (JKM) upon a medical examination by a government medical officer who will then state the nature and type of the disability, as well as whether the disability is temporary or permanent. This also means that not everyone with an OKU card may be issued with an OKU sticker. [READ MORE: What can the Kad OKU be used for, and how do you get one?] The OKU sticker is only distributed by the Road Traffic Department (JPJ) upon completing the process and submitting documents required by the department. The conditions for application for the OKU stickers as laid down by JPJ are as stated below: Application may be submitted by the registered owner, beneficiary, or representative of the organization/association. Vehicle registered under the name of the disabled persons possessing OKU Card with the reference number that starts with ' PH ' (disabled persons with physical disability) or ' CA ' (old OKU Card reference number issued by the Social Welfare Department in Sarawak) or; The vehicle has been registered under code uses IT (vehicles for disabled people) or; A vehicle owned by organization/association of the disabled who have registered /received confirmation from the Department of Welfare. However, some municipal councils also provide free OKU stickers, but the same requires must be met. It’s best to call or check your local council’s website to see if this is available for you. What happens if you park on a disabled parking spot when you are not disabled? For council-controlled parking spaces (basically public parking areas), disabled parking spaces can ONLY be used by a vehicle displaying an OKU sticker. The local authorities have the right to issue summonses to cars parked on the disabled parking spots without the said OKU stickers. Section 48(2) of the Road Transport Act 1987 allows police officers or road transport officers or any appropriate authority to clamp the car that is parked in an obstructive manner or tow it away to another location. So, if you ever come across someone parking on a disabled parking spots without a OKU sticker, you may give the police/JPJ/the local authority a call and make a complaint about the obstruction. A similar rule would generally apply for disabled parking lots located inside government and private buildings. However, this can be a little more discretionary as the building management or security guards may allow able-bodied drivers with disabled passengers to park in the disabled parking spaces. When you have no valid excuse for parking in a disabled spot, your vehicle may be clamped. In private parking situations, complaints can be made to the security personnel or the car park/building management. Selfishness is not a disability In order to enable persons with disability to live independently and participate fully in a wholesome and fulfilling life, Malaysia has showed its commitment by becoming one of the first signatories to the United Nations Convention on the Rights of Persons with Disabilities and Optional Protocol in 2007. Malaysia has since actively been attempting to make accessibility easier for persons with disabilities, primarily when it comes to toilets and car parks. However, it’s also apparent that not all of us understand the importance of reserving those facilities to those with disabilities, especially parking spots. Coupled with accusations of lax enforcement, some members of the public may be tempted to take matters in their own hands by confronting drivers or recording/taking pictures of the offending vehicles. While it’s an exercise on civic consciousness, it might also be a good idea to keep in mind that it’s an offence to provoke someone into a fight or damage their vehicle. If you’re putting up a picture or a video, it’s also a good idea to avoid adding negative descriptions that may defame the character of the driver – for example, you can just say “look at this car taking up an OKU spot” instead of “idiots like these got no education and beat their children” [READ MORE: In Malaysia, shaming someone on social media could land you in jail] After all, it’s never a good thing to see a good deed punished."
"Inilah garis panduan JPN untuk mengelakkan ibu bapa dari memberi nama pelik kepada anak... [Click here for the English version] Boleh tak korang bayangkan kalau nama korang – Durian atau Rambutan? Tapi itulah nama dua orang adik beradik dekat Kedah ni bila mak ayah diorang bagi nama buah durian dan rambutan dekat diorang. Walaupun nama diorang tu dieja berbeza – Durian dieja jadi Dhury Yan dan Rambutan dieja jadi Rambutt’an. Tapi ia tetap sama sangat dengan nama buah, dan itulah yang membuatkan netizen kaitkan dengan buah-buahan tempatan, sebab bunyinya yang agak sama. Baru-baru ini juga seorang pemuda tular di Twitter setelah memuat naikkan gambar kad pengenalannya. Dalam gambar tersebut, boleh dilihat namanya bercampur Melayu-Jepun. Secara undang-undangnya, bukanlah satu kesalahan menamakan seseorang tu dengan nama buah atau nama Jepun. Tapi Jabatan Pendaftaran Negara (JPN) dah tetapkan garis panduan/peraturan yang menghalang nama-nama yang boleh menyinggung dan tak sesuai. Seksyen 16, Akta Pendaftaran Kelahiran dan Kematian 1957 ada menyebut: Jika pada pendapat Pendaftar bahawa nama kanak-kanak yang diminta untuk dicatatkan ke dalam suatu daftar kelahiran itu adalah tidak menyenangkan atau tidak diingini, dia hendaklah merujuk perkara itu kepada Pendaftar Besar dan Pendaftar Besar boleh menyebabkan nama itu didaftarkan atau tidak didaftarkan sebagaimana yang difikirkannya patut. Secara asasnya, Pendaftar ada kuasa dan upaya untuk tolak nama yang tak diingini dan nama tu tak akan diterima oleh pihak pendaftaran seperti mana dalam akta. Jadi, kitorang buat keputusan untuk cari jenis-jenis nama yang JPN tak akan terima dan ini dia senarai kriteria nama-nama yang tak akan diterima di Malaysia. 1. Nama yang dilarang sama sekali Teruk sangat ke nama-nama ni, sampaikan dilarang sama sekali digunakan kat Malaysia? Ini senarai sebab disebalik larangan tu: Nama yang boleh bawa makna menyinggung – Contohnya, nama Woti yang bawa maksud hubungan seks, ia adalah dilarang sama sekali digunakan. Nama yang ada singkatan perkataan – Kalau korang ada rancangan nak bagi nama anak korang dengan gabungan nama lain, tapi lepas tu korang sedar yang nama tu panjang sangat nak muat kat IC. Dan korang pun buat keputusan ‘pendekkan’ dengan huruf macam ABCD, maka JPN tak akan terima nama tu. Nama yang merujuk profesion tertentu – Walaupun ada mak ayah yang nak anaknya jadi Doktor atau Jurutera bila besar nanti, tak bolehlah bagi nama anak korang dengan gelaran DR atau IR. Ini semuanya dilarang. Gelaran yang dianugerahkan oleh kerajaan – Bagi nama anak korang dengan gelaran, Dato’ Sri atau Tan Sri yang hanya boleh dianugerahkan oleh kerajaan juga dilarang sama sekali. Jadi, kalau korang pernah jumpa orang yang namanya Sial atau Bola Besar… mesti diorang rasa terbeban sangat, lebih-lebih lagi kalau diorang tu lelaki. Nama-nama yang bawa makna menyinggung juga boleh buatkan orang yang memanggil macam menghina. Manakala nama-nama dengan gelaran atau merujuk profesion tertentu pula boleh menimbulkan kekeliruan dan melanggar undang-undang. 2. Nama yang tak sesuai untuk seseorang Pernah ke kita jumpa orang yang namanya Hitler dekat tempat kerja kita atau kat mana-mana majlis? Rasanya macam tak pernah. Ini lah mungkin antara maksud “tak sesuai” dalam memberi nama di Malaysia. Terdapat juga nama-nama lain yang dikelaskan sebagai tak sesuai di Malaysia macam: Nama haiwan – Monyet, Lipan, Babi dan Ular. Kejadian alam – Hujan, Batu, Angkasa dan Panas. Nama dari angka – 007 atau kosongkosongtujuh, K9. Sebenarnya, terdapat peningkatan bilangan orang yang nak tukar nama asal diorang di Malaysia disebabkan nama tu tak sesuai dengan diorang. Nama-nama yang tak sesuai ni merujuk kepada nama-nama yang mungkin tak sesuai dengan jantina tertentu, atau boleh merujuk kepada haiwan, cuaca atau menamakan seseorang berdasarkan nombor/digit. 3. Nama-nama dari gelaran keturunan Korang mesti pernah dengar nama orang yang bermula dengan Syed/Syarifah, Wan atau Nik dekat Malaysia. Jadinya, untuk gunakan gelaran ni dalam nama-nama diorang, diorang mesti dapatkan kebenaran dari pihak berkuasa dan kena buktikan yang diorang memang dari keturunan yang bawa gelaran tu. Barulah diorang boleh menggunakannya. Ini antara cerita disebalik nama – nama seperti Syed/Syarifah. Dikatakan mereka ni berasal dari keturunan Nabi Muhammad SAW. Nama Megat pula berasal dari keturunan Megat Terawis, Bendahara pertama Perak. Manakala Wan adalah berasal dari singkatan ‘Pahlawan’ dan bermula dari bangsawan Perak. Jadi, kalau korang tak ada kaitan dengan ‘Wan’, maka tak bolehlah korang guna nama keturunan yang berasal dari keturunan tu. Sama juga kalau korang perempuan yang ada gelaran dalam nama, anak korang tak boleh warisi nama tu walaupun diorang sebahagian dari keturunan sama. 4. Nama yang tak sesuai dengan bahasa lain Disebabkan kebanyakan masyarakat Malaysia ni bilingual atau multi-lingual, kita kadang-kadang tu boleh faham perkataan-perkataan yang bawa maksud tak baik dalam bahasa tertentu. Benda macam ni boleh jadi kalau seseorang tu tak tahu konteks makna namanya dalam bahasa lain. Jadinya, ini tiga kategori bahasa utama di Malaysia yang antaranya dikelaskan sebagai nama tak sesuai: Bahasa Melayu – Zaniah (pelacur), Khinzir (babi), Ketiak dan Kemek. Bahasa Mandarin/Hokien – Ah Chaw (ular), Khiow Choo (bongkok) dan Chow Tow (kepala berbau). Bahasa Tamil – Kalavani (pencuri), Karrupasamy (dewa hitam) dan Motayyan (lelaki botak). Jadinya, lebih baik korang tahu dulu makna nama yang korang pilih sebelum buat apa-apa keputusan, sebabnya ia mungkin kedengaran tak baik dalam bahasa lain. 5. Nama tak boleh lebih dari 80 aksara JPN juga ada buat pengumuman tahun lepas yang diorang terhadkan nama – tak lebih 80 aksara supaya ia muat ditulis dalam IC. Kalau korang tertanya-tanya pasal rekod nama terpanjang di Malaysia, ia dipegang oleh seorang kanak-kanak perempuan yang bernama Princess Aura Nurr Emily Amara Auliya Bidadari Nawal El Zendra Mohd Sufian. Nama ni ada 63 aksara dan 12 perkataan! Jadi, dengan peraturan terbaru ni, aksara yang dihadkan termasuklah nama bapa dan perkataan “Bin/Binti” dalam IC. Sila ambil perhatian – jarak antara nama tu pun dikira sebagai aksara tau! Sebab di sebalik peraturan ni adalah untuk mengurangkan impak negatif kepada kanak-kanak, bila diorang nak isi borang atau isi nama pada kertas peperiksaan sekolah. Tapi peraturan ni tak bermaksud nak menghukum seseorang sebab nama yang dah diberikan kepada diorang. Sesiapa yang ada nama melebihi 80 aksara akan diberi kad pengesahan yang akan mengesahkan nama diorang tu tak sesuai dengan MyKad. Tapi jangan risau, nama korang tak akan buatkan korang kena saman Jadi, ada nama yang panjang atau bawa makna yang tak baik bukanlah bermaksud seseorang tu buat salah di Malaysia. Asasnya, JPN bagi kebebasan penuh kepada ibu bapa untuk bagi nama kepada anak-anak diorang, selagi mana ia selaras dengan peraturan. Kalau kedua-dua ibu bapa setuju untuk namakan anak diorang dengan nama tertentu, tak ada peraturan tegas yang kata diorang tak boleh. Ia juga mengikut budi bicara pendaftar sama ada nama tu boleh diterima atau digunakan. “Keputusan untuk pemberian nama kepada kanak-kanak adalah bergantung sepenuhnya kepada ibu bapa atau pemaklum kelahiran itu. Nama yang diberikan oleh ibu bapa bergantung kepada individu itu dan adalah subjektif. Ibu bapa yang ingin menamakan anak mereka dengan nama yang tidak digalakkan dan pihak JPN akan menasihatkan mereka akan ketidaksesuaian nama yang dipilih terlebih dahulu.” – Kenyataan JPN dipetik dari Projekmm. Bagaimanapun, kalau korang tak suka dengan nama korang atau nak tukar nama, ada prosedur dan langkah-langkah yang korang kena ambil untuk daftar balik nama korang di JPN. Dan korang kena bersumpah yang perubahan tu dibuat kerana kehendak korang sendiri. Kalau itulah kesnya, cara terbaik adalah berhubung dengan JPN atau layari laman web diorang untuk tahu prosedur tukar nama di Malaysia. Di mana, ada beberapa kategori yang disenaraikan berdasarkan umur seseorang."
"Boleh ke kita bayar zakat terus kepada asnaf dan tak kepada pusat zakat? Bila tiba je bulan Ramadan, selain dari berpuasa – semua orang Islam akan menunaikan zakat fitrah. Kewajiban zakat ni memang penting dalam Islam, sampaikan ia menjadi rukun Islam yang keempat. Sebenarnya terdapat dua jenis zakat dalam Islam, iaitu zakat fitrah dan zakat harta. Zakat fitrah diwajibkan kepada setiap orang Islam, tak kiralah diorang tu – tua atau muda, lelaki atau perempuan, kaya atau miskin. Manakala, zakat harta pula terbahagi kepada beberapa kategori seperti – zakat pendapatan, zakat perniagaan, zakat wang simpanan, zakat pelaburan, zakat KWSP, zakat emas & perak, dan zakat takaful. Berbeza dengan zakat fitrah, zakat harta hanya diwajibkan kepada orang-orang yang layak. Kewajiban zakat ni datang dari Allah SWT sendiri melalui banyak ayat dalam al-Quran, dan salah satunya seperti: “Wahai orang-orang yang beriman, keluarkan zakat sebahagian daripada hasil usaha kamu yang baik-baik dan sebahagian dari apa yang kami keluarkan dari bumi untuk kamu.” – Surah Al-Baqarah: 267 Seperti mana yang kita selalu nampak, sekarang ni kuanter zakat ada dekat mana-mana dan tak terhad di pejabat zakat atau masjid je. Kita boleh nampak kuanter zakat dekat – pasar raya, pasar malam, pejabat-pejabat kerajaan, kuanter zakat bergerak, dan malah boleh bayar zakat secara online. Tapi masalahnya sekarang ni, ada pulak pihak-pihak tertentu yang tak nak bayar zakat dekat institusi zakat. Namun sebelum tu, jom kita tahu dulu masalah yang berbangkit dan apakah salah faham yang jadi dalam hal ni. Zakat bukan hanya untuk fakir dan miskin je Sebenarnya, dalam peraturan zakat, orang-orang yang layak terima zakat digelar sebagai asnaf. Terdapat lapan golongan yang termasuk dalam kategori asnaf iaitu: Orang fakir (al-fuqara’) Orang miskin (al-masakin) Amil (pengutip zakat) Orang yang baru memeluk Islam (muallaf) Hamba (al-riqab) Orang berhutang (al-gharimin) Orang yang berjuang di jalan Allah (fisabilillah) Musafir yang berada dalam perjalanan (ibn sabil) Jadinya, zakat bukan hanya untuk orang fakir dan miskin je, tapi juga untuk golongan-golongan lain. Sebab itulah, ibu tunggal, anak yatim, orang kurang upaya (OKU) atau sebagainya tak terima zakat. Diorang cuma boleh terima zakat kalau tergolong dalam 8 golongan ni. Contohnya macam – anak yatim yang miskin atau ibu tunggal yang berhutang. Dan bila bercakap dalam konteks Malaysia, seperti mana yang kita tahu, urusan berkenaan dengan agama Islam terletak dalam bidang kuasa negeri dan bukannya persekutuan. Hal ni termasuklah zakat yang diletakkan di bawah Majlis Agama Islam Negeri (MAIN). Secara umumnya, Majlis (bagi pihak sultan/YDP Agong) berkuasa memungut zakat daripada setiap orang Islam yang layak dan membuat peraturan-peraturan yang berkaitan dengannya. Sebagai contoh, kita boleh rujuk dalam Seksyen 86, Enakmen Pentadbiran Agama Islam (Negeri Selangor) 2003. “Majlis hendaklah berkuasa memungut zakat dan fitrah daripada setiap orang Islam yang kena dibayar di dalam Negeri Selangor mengikut Hukum Syarak bagi pihak Duli Yang Maha Mulia Sultan.” Atau Seksyen 74, Enakmen Pentadbiran Agama Islam (Negeri Melaka) 2002. “Majlis berkuasa memungut zakat dan fitrah yang kena dibayar oleh tiap-tiap orang Islam di dalam negeri Melaka mengikut Hukum Syarak bagi pihak Yang di-Pertuan Agong.” Walaupun dah ditetapkan dalam undang-undang, tapi nampaknya institusi zakat sekarang ni berdepan dengan cabaran. Sebab, apa pihak-pihak tertentu yang tak nak bayar zakat melalui institusi yang diiktiraf. Dan hal ni membawa kita tentang masalah… Wujudnya rasa tak percaya dengan institusi zakat Dalam satu kajian yang dah dijalankan, didapati ada beberapa sebab kenapa seseorang tu pilih untuk bayar zakat terus kepada asnaf dan tak nak lalui institusi zakat. Antara faktor-faktornya adalah: Malas nak bayar di kuanter zakat Anggap institusi zakat tak cekap dalam mengagihkan zakat Tak yakin dengan institusi zakat Rasa lebih puas tunaikan zakat sendiri tanpa lalui institusi zakat Unsur-unsur negatif dikaitkan dengan institusi zakat mempengaruhi diorang Sebab bagi diorang, walaupun pusat-pusat zakat terima zakat sampai berjuta-juta, tapi masih ada fakir – miskin dekat luar sana. Dan hal ni seolah-olah yang duit zakat tu tak sampai kepada orang-orang yang memerlukan. Jadinya, diorang pun ambil keputusan untuk bayar zakat terus kepada asnaf dan tak nak lalui pusat zakat. Sebenarnya, hal ni dah lama diperbincangkan oleh para ulama Islam. Sebab, ada ayat al-Quran khusus yang membincangkan pasal siapa yang berhak mengutip zakat. Ayat tu adalah: “Ambillah (sebahagian) dari harta mereka menjadi sedekah (zakat), supaya dengannya engkau membersihkan mereka (dari dosa) dan mensucikan mereka (dari akhlak yang buruk);...” – Surah al-Taubah: 103 Perkataan “ambillah” dalam ayat ni ditujukan kepada pemerintah, supaya diorang mengutip zakat dan ia juga menggambarkan yang zakat menjadi sebahagian daripada tanggungjawab negara. Melalui pemerintah, barulah zakat diagihkan kepada asnaf-asnaf yang memerlukan. Dan seperti mana yang diterangkan tadi, zakat di Malaysia perlu melalui institusi zakat yang dah ditetapkan di setiap negeri. Jadinya muncul persoalan, sama ada boleh ke kita bayar zakat terus kepada asnaf, tanpa melalui pemerintah? Bukan ke ia dah melanggar hukum? Menjawab hal ni, ulama-ulama Islam dah berbincang panjang lebar dalam memberikan hukum. Sebahagian ulama dalam Mazhab Maliki mewajibkan zakat diserahkan kepada pemerintah, sekalipun pemerintah tu zalim. Manakala, bagi Mazhab Hanbali pula, seseorang tu boleh tunaikan zakat sendiri (tanpa melalui pemerintah), tapi kalau pemerintah tu mengagihkan zakat tepat kepada orang yang layak, maka seseorang tu kena bayar zakat kepada pemerintah. Tapi macam mana pula dengan Malaysia? Kita boleh didenda kalau bayar zakat kepada pihak yang tak dilantik MAIN Disebabkan masalah ni menjadi perdebatan ramai pihak, jadinya pada tahun 2006, Muzakarah Jawatankuasa Fatwa Kebangsaan kali ke-76 dah menetapkan hukum membayar zakat secara bersendirian, tanpa melalui institusi zakat. Muzakarah tu memutuskan hukumnya – masih sah kalau zakat tu diserahkan kepada asnaf yang layak, tapi dalam masa sama tetap berdosa. Sebabnya… “… tetapi perbuatan melanggar peraturan dan undang-undang pemerintah dalam perkara kebaikan adalah berdosa. Ini kerana dalam Islam patuh dan taat kepada pemerintah atau ulil amri dalam perkara kebaikan adalah wajib” – Muzakarah Jawatan Kuasa Fatwa Kebangsaan kali ke-76. Akan tetapi, walaupun Majlis Fatwa mengatakan hukumnya sah, tapi di sisi undang-undang ia masih dilihat sebagai satu kesalahan di majoriti negeri-negeri di Malaysia. Kalau kita tengok Seksyen 21, Enakmen Jenayah Syariah (Selangor) 1995, ia menyatakan: Mana-mana orang yang wajib membayar zakat atau fitrah tetapi – (b) enggan membayar atau dengan sengaja tidak membayar zakat atau fitrah itu melalui amil yang dilantik, atau mana-mana pihak lain yang diberikuasa, oleh Majlis untuk memungut zakat atau fitrah, adalah melakukan suatu kesalahan dan apabila disabitkan boleh didenda tidak melebihi lima ribu ringgit atau dipenjarakan selama tempoh tidak melebihi tiga tahun atau kedua-duanya. Walaupun begitu, sehingga ke hari ni, kita masih belum dengar kes-kes yang melibatkan kesalahan bayar zakat terus kepada asnaf didakwa di mahkamah. Antara puncanya mungkin kerana beberapa negeri di Malaysia dah menerima keputusan Majlis Fatwa Kebangsaan (contohnya Selangor) bahawa membayar zakat secara bersendirian adalah sah, tetapi berdosa. Tapi dalam keadaan tertentu, ada juga orang-orang tertentu yang dibenarkan mengagihkan zakatnya sendiri tanpa melalui pusat zakat. Contohnya adalah di Wilayah Persekutuan. Ini kerana, Pusat Pungutan Zakat Wilayah Persekutuan ada tawarkan skim khas berupa wakalah (beri semula bayaran zakat kepada pengeluar zakat) untuk membayar sendiri kepada asnaf. Tapi syaratnya, nilai zakat yang ditunaikan tu mestilah besar: “Zakat yang melebihi RM10,000 sebagai contoh boleh dianggap sebagai jumlah yang besar. Sekiranya zakat dalam jumlah sedemikian, maka sebahagiannya bolehlah dibuat agihan sendiri dan sebahagian yang lain perlu ditunaikan ke pihak yang berwajib.” – Pusat Pungutan Zakat MAIWP. Bayarlah zakat, untuk kepentingan dan kebajikan masyarakat Tak seperti zakat fitrah yang diwajibkan kepada semua orang Islam, zakat harta hanya diwajibkan kepada orang yang layak. Sekarang ni semuanya semakin mudah bila institusi zakat juga dah sediakan kalkulator untuk korang kira zakat harta. Jadi, tak payahlah korang pening kepala nak kira macam mana. Malah, korang juga boleh dapat rebat ke atas cukai pendapatan korang, kalau korang berzakat. Maknanya, semakin tinggi kadar zakat yang ditunaikan, semakin banyak juga rebat yang akan diberikan kepada pembayar zakat tersebut dari dikenakan cukai pendapatan. Selain tu, zakat juga sebenarnya dah banyak membantu masyarakat di Malaysia ni dalam memperbaiki hidup dan kebajikan diorang. Kebajikan tu pula, bukan untuk orang Islam je, tapi juga kepada orang bukan Islam. Contohnya, Perlis jadi negeri pertama yang membenarkan orang bukan Islam menerima zakat. Malah, Mufti Perlis, Prof Dato’ Dr Mohd Asri Zainul Abidin pun ada bagi penjelasan kenapa zakat sepatutnya diberikan kepada pemerintah (pusat zakat/MAIN) dan tak sepatutnya dibuat secara sendirian. “Perkara ini menjadi perbincangan para ulama, tetapi hukum asalnya hendaklah kita membayar zakat kepada pemerintah. Sebabnya, amil zakat kena tengok keseluruhan (pihak mana yang layak). Mungkin disebabkan kita kenal seseorang yang miskin tu, maka kita bagi zakat kepadanya. Tapi, sebenarnya ada lagi yang miskin, tapi tak dapat (zakat). Tapi jika diberikan kepada amil melalui pemerintah, maka pemerintah akan lihat keseluruhannya. Maka semua yang layak (dapat zakat) akan dapat yang sepatutnya. ” – Dr Asri Zainul Abidin, Mufti Perlis."
"By July, you need to register your MyKad to use Grab (or any e-hailing app) Over the past 6 years, ride sharing services have changed the way we use public transportation, from hailing taxis to just calling a car up on our phone via a mobile app. But here’s the thing, while we might consider a GrabCar or MyCar a form of public transportation, the law doesn’t. This is mostly due to how laws define public transport vehicles (ie, busses and taxis), which usually excludes privately owned vehicles. So, the emergence of ride sharing (also called e-hailing) companies around the world have become a problem for governments who either respond by introducing or enforcing laws that make the service outright illegal, or to change or introduce new laws that make them legal. Malaysia is parked in the second category, where the government has updated the Land Public Transport Act to include definitions and regulations for e-hailing vehicles. While these regulations remove any legal ambiguity about ride sharing, it also introduces regulations that require inspections and checks on drivers and their vehicles in order to qualify for a license – kinda like taxis. But these new regulations don’t only cover drivers; passengers also have some new regulations to follow. You’ll need to register by uploading a picture of your MyKad or Passport Much of the regulations involving drivers are to ensure the safety of passengers when using ride sharing services. However, Transport Minister Anthony Loke also mentioned that, to ensure the safety of drivers, passengers will also need to verify their identity by uploading a picture of their IC or passport (for foreigners) in order to use a ride sharing app: “For the safety of e-hailing drivers, passengers are required to upload valid identification card or passport details when they register.” – Anthony Loke, as quoted by The New Straits Times There are two sets of guidelines that regulate the industry, but the one relevant to this article is the Garis Panduan Perkhidmatan E-Hailing di bawah Perniagaan Pengantaraan, with the Land Public Transport Agency (APAD) responsible for enforcing these guidelines. Section 5.1 lays down the minimum requirements companies must include in their app, which include having a function to register drivers and passengers: Section 5.1 of the Garis Panduan Perkhidmatan E-Hailing di bawah Perniagaan Pengantaraan (in part): Setiap pemohon LPP dan pemegang lesen LPP hendaklah mempunyai applikasi e-hailing dengan spesifikasi minima seperti berikut: (a) fungsi pendaftaran pemandu dan penumpang [...] Section 5.2 then specifies that the details required for registration are full name, a valid copy of your MyKad/passport, and phone number. Section 5.2 of the Garis Panduan Perkhidmatan E-Hailing di bawah Perniagaan Pengantaraan (in part): Bagi fungsi pendaftaran pemandu dan penumpang pada perenggan 5.1(a), maklumat-maklumat berikut hendaklah dipohon: [...] (b) salinan Kad Pengenalan (bagi pemandu dan penumpang yang berwarganegara Malaysia) atau Pasport (bagi penumpang yang bukan warganegara Malaysia) yang sah [...] But if you’re feeling fidgety about putting up your IC online or rolling your eyes at the inconvenience of taking your MyKad out of your wallet, some ride-sharing companies have come up with other alternatives... Grab gives you the option to upload a selfie instead Grab has been working on incorporating facial recognition technology into the passenger verification requirements, which essentially means that you can take a selfie instead of a picture of your MyKad or passport. This is currently being rolled out to Grab customers in stages, so you will receive a notification on your phone soon. According to Grab, unless further verification is needed down the line, this will be the only selfie you need to take. You won’t need to worry about drivers or merchants (ie, for GrabFood) viewing your selfie as well – it’ll only be used to verify your identity and assist the authorities in the event of a crime or emergency – and is separate from your user profile picture. It’s also interesting to note that, in 2018, Grab and Microsoft entered into a 5 year collaboration on technology projects; which include facial recognition with built-in AI. Grab has also provided instructions for taking a selfie, in case you need it. But whether a selfie or a MyKad photo, your privacy will be protected either way since… There’s already a law that stops companies from sharing your personal info The Personal Data Protection Act (PDPA) is an existing law that prevents companies from collecting or sharing your personal information without your permission, at the cost of a heavy fine and possible jail time. Not just that, it makes it compulsory for companies to take preventive measures to secure your information from being leaked, stolen, or hacked. The key part of the PDPA in relation to this article is the Security Principle (Section 9 of the PDPA). It basically binds companies to protect your data from being misused or disclosed without authorization. Not just that, it also requires that the company must guarantee that they provide sufficient security to protect your data from hackers as well as from their own employees. Section 9(2) of the Personal Data Protection Act 2010 : Where processing of personal data is carried out by a data processor on behalf of the data user, the data user shall, for the purpose of protecting the personal data from any loss, misuse, modification, unauthorized or accidental access or disclosure, alteration or destruction, ensure that the data processor— (a) provides sufficient guarantees in respect of the technical and organizational security measures governing the processing to be carried out; and (b) takes reasonable steps to ensure compliance with those measures The PDPA already applies to how ride sharing companies already manage the private information you’ve previously given them when you registered, so the same protection will be extended to your MyKad/passport/selfie as well. Passengers can be assured that their selfie will only be used for one-time verification purposes, and like all personal data on Grab, is securely protected under Malaysia’s Personal Data Protection Act (PDPA). – Grab press release, April 11 2019 So, for the most part, uploading a photo of your MyKad is unavoidable regardless of which ride sharing company you decide to go with; but at least there are laws and practices in place to prevent that information from falling into the wrong hands."
"Boleh ke kita didakwa kerana tak Solat Jumaat sebab Covid-19? KEMASKINI 13 Jan 2021: Solat Jumaat dan solat fardu di beberapa negeri yang kini dalam tempoh PKP dihadkan kepada ahli jawatankuasa masjid dan surau sahaja. Di Sabah, menurut kenyataan dari JHEAINS, ahli kariah wajib melaksanakan solat fardu Zohor untuk menggantikan solat Jumaat di rumah masing-masing. __________________________________________________ Seperti mana yang kita dapat nampak dan perhatikan, pada setiap hari Jumaat umat Islam di seluruh dunia akan berkumpul di masjid untuk menunaikan Solat Jumaat. Suruhan menunaikan Solat Jumaat ni sebenarnya datang dari al-Quran sendiri, iaitu melalui Surah al-Jumuah ayat 9 yang bermaksud: “Wahai orang-orang yang beriman! Apabila diserukan azan untuk mengerjakan sembahyang pada hari Jumaat, maka segeralah kamu pergi (ke masjid) untuk mengingati Allah (dengan mengerjakan Solat Jumaat) dan tinggalkanlah berjual-beli (pada saat itu); yang demikian adalah baik bagi kamu, jika kamu mengetahui (hakikat yang sebenarnya)” Disebabkan statusnya sebagai solat yang diwajibkan, maka kalau seseorang tu meninggalkannya, ia dah dikira sebagai berdosa dan salah dari segi hukum agama. Tapi rupa-rupanya, Malaysia dah lama ada undang-undang tentang kewajiban Solat Jumaat ni dan korang sebenarnya boleh dihukum kalau tak tunaikan Solat Jumaat. Tapi undang-undang ni hanya terpakai kepada golongan lelaki Islam je, sebab kefarduan (kewajiban) Solat Jumaat ni cuma dikhaskan kepada golongan lelaki. Korang boleh didenda sampai SERIBU RINGGIT dan DIPENJARA sebab tak tunai Solat Jumaat Seperti mana yang diketahui, Malaysia mengamalkan dua sistem undang-undang iaitu sivil dan syariah. Disebabkan hal berkaitan dengan agama Islam berada di bawah kuasa negeri, maka setiap negeri mempunyai undang-undang syariahnya tersendiri dan kadang kala tu berbeza di antara satu sama lain. Setiap kes syariah pula akan dibicarakan di Mahkamah Syariah. Kesalahan syariah ni ada pelbagai, macam - minum arak, tak puasa, berzina, tak bayar zakat, mempersendakan Quran dan termasuklah kesalahan tak tunaikan Solat Jumaat. Tapi bila dikaji, peruntukan kesalahan tak tunai Solat Jumaat ni ada juga yang berbeza-beza dari setiap negeri. Contohnya, kalau kita tengok Seksyen 20, Enakmen Jenayah Syariah Selangor 1995, ia ada menyatakan: “Mana-mana orang lelaki, yang baligh, yang tidak menunaikan sembahyang Jumaat di masjid dalam kariahnya tiga kali berturut-turut tanpa uzur syarie atau tanpa sebab yang munasabah adalah melakukan suatu kesalahan dan apabila disabitkan boleh didenda tidak melebihi satu ribu ringgit atau dipenjarakan selama tempoh tidak melebihi enam bulan atau kedua-duanya.” Peruntukan dengan isi yang sama juga dikongsi oleh beberapa negeri lain macam – Johor, Negeri Sembilan, Melaka, Pulau Pinang, Terengganu dan Wilayah Persekutuan. Tapi ada juga peruntukan syariah di negeri-negeri tertentu yang menetapkan hukuman berbeza macam: Kelantan – Denda tak lebih seribu atau penjara tak lebih satu tahun. Pahang – Denda tak lebih RM50 dan penjara tak lebih 7 hari. Kedah – Denda tak lebih RM100 dan penjara tak lebih sebulan. Tapi buat masa sekarang, cuma negeri Sarawak yang tak ada peruntukan untuk kesalahan tak menunaikan Solat Jumaat. Tapi jangan korang ambil kesempatan pulak ye. Solat Jumaat tu tetap wajib tau. Lepas kita dah tahu pasal undang-undang kesalahan syariah tak tunai Solat Jumaat ni, kita juga mesti nak fahamkan maksud peruntukan kan? Sebabnya, hampir dalam setiap peruntukan undang-undang Solat Jumaat, ada terma-terma yang kita tak berapa faham. Macam – baligh, uzur syarie dan kenapa pula kesalahan tu dikira bila kita tinggalkan Solat Jumaat sebanyak 3 kali berturut-turut? Ada sebab di sebalik syarat peruntukan undang-undang tu Sebenarnya dalam Islam ada empat sumber rujukan utama iaitu al-Quran, hadis/sunnah, ijma’ dan qiyas. Berdasarkan empat rujukan inilah, sesuatu hukum tu ditetapkan kepada setiap umat Islam. Ini makna satu persatu rujukan tersebut: al-Quran – Kitab suci umat Islam dan merupakan wahyu Allah kepada Nabi Muhammad SAW. Hadis/sunnah – Perkara-perkara yang berkaitan dengan Nabi Muhammad SAW, termasuk perkataan, perbuatan dan pengakuan baginda. Ijma’ – Persepakatan seluruh tokoh-tokoh ulama dari umat Nabi Muhammad SAW, selepas kewafatan baginda pada sesuatu zaman, terhadap sesuatu hukum. Qiyas – Membandingkan perkara yang tidak dinyatakan hukumnya dalam al-Quran dan sunnah dengan perkara yang ada dinyatakan hukumnya dalam al-Quran dan sunnah. Dalam isu kesalahan tak tunai Solat Jumaat, seseorang tu boleh dikenakan tindakan bila dia tak uzur syarie, tapi dia tetap juga tinggalkan Solat Jumaat. Uzur syarie ni bermaksud keuzuran yang diiktiraf dalam agama sehingga membolehkan seseorang tu tak buat perintah agama macam – solat, puasa dan sebagainya. Contoh keuzuran tu pula adalah seperti – hujan lebat, tak sihat, bermusafir dan sebagainya. Tapi alasan-alasan tu mestilah munasabah dan kalau tak munasabah – seseorang tu masih lagi wajib tunaikan perintah agama, dan dalam kes ni menunaikan Solat Jumaat. Seterusnya pula adalah baligh. Baligh ni boleh ditakrifkan sebagai satu peringkat dalam hidup korang di mana tubuh badan korang berubah dari seorang kanak-kanak ke seorang dewasa. Disebabkan majoriti umat Islam Malaysia bermazhab Syafie – kebanyakan ulama mazhab ni berpandangan umur baligh bagi wanita dan lelaki adalah 15 tahun. Kalau kita rujuk peruntukan untuk negeri Pahang dan Kedah, memang dah ditetapkan yang umur wajib solat Jumaat adalah 15 tahun, sesuai dengan pandangan Mazhab Syafie. “Mana-mana lelaki yang berumur lima belas tahun atau lebih tidak menunaikan fardhu Jumaat di masjid mukimnya adalah melakukan suatu kesalahan dan apabila sabit boleh dihukum denda tidak lebih daripada lima puluh ringgit atau penjara tidak lebih daripada tujuh hari.” – Seksyen 135, Enakmen Pentabdiran Ugama Islam dan Adat Resam Melayu Pahang 1982. Untuk perkara ketiga, peruntukan undang-undang syariah yang ada dalam setiap negeri menetapkan yang ia hanya jadi kesalahan bila seseorang lelaki tu tinggalkan Solat Jumaat sebanyak tiga kali berturut-turut. Benda ni yang agak menimbulkan persoalan, sebab kenapa pula kena tunggu tiga kali berturut-turut? Sebenarnya, syarat ni datang berdasarkan hadis Nabi Muhammad SAW: “Barangsiapa yang meninggalkan Solat Jumaat tiga kali kerana meringan-ringankannya, Allah akan mengunci hatinya,” – Hadis riwayat al-Tirmidzi. Oleh itu, boleh disimpulkan yang peruntukan undang-undang ni hanya dikhaskan kepada pesalah ‘tegar’ je, dan kalau seseorang tu tinggalkan Solat Jumaat tapi bukan untuk tiga kali berturut-turut, dia masih lagi tak tertakluk dalam peruntukan undang-undang yang ditetapkan tu. Sebab itu jugalah… Tak ada kes melibatkan kesalahan ni dibicarakan di mahkamah...sampailah tahun 2019 Tapi apa yang menariknya, sampai ke hari ni kita tak dengar satu pun kes melibatkan kesalahan tak tunai Solat Jumaat dibicarakan di Mahkamah Syariah. Malah dalam satu kajian yang dilakukan oleh Jabatan Kehakiman Syariah Malaysia, dari tahun 2004 sampai 2008, dapati tak ada satu pun kes berkaitan isu ni dibicarakan di Mahkamah Syariah. “Mereka yang tidak cukup tiga kali (tak tunai Solat Jumaat) tidak boleh dikenakan sebarang tindakan mengikut peruntukan sedia ada… inilah elemen yang paling sukar sekali untuk dipenuhi bagi maksud penguatkuasaan kesalahan ini.” – Jurnal Hukum. Disebabkan oleh kekangan yang dinyatakan itu, maka sampai ke hari ni kita masih belum dengar kes tak Solat Jumaat dibicarakan di sekeliling kita. Walaupun macam tu, ia tak bermakna yang kes ponteng Solat Jumaat tak berlaku, sebab kita ada je dengar kes macam tu jadi dan dilaporkan media. KEMASKINI: Sehinggalah tahun 2019, buat pertama kalinya kes membabitkan tak tunai Solat Jumaat dibawa ke Mahkamah Syariah. Enam orang lelaki telah ditahan atas kesalahan tersebut dan dibicarakan di Mahkamah Rendah Syariah Hulu Terengganu. Seorang dari tertuduh yang merupakan bapa kepada anak dua dikenakan hukuman penjara sebulan dan didenda RM2,500. Lima lagi tertuduh yang masih bujang dikenakan hukum penjara sebulan dan denda RM2,400. Dalam keadaan tertentu Solat Jumaat masih boleh dibatalkan Walaupun Solat Jumaat ni adalah wajib bagi setiap lelaki muslim, tapi dalam keadaan tertentu ia masih lagi boleh dibatalkan dan diganti dengan Solat Zohor. Hal tu boleh kita lihat bila negeri Perlis memutuskan yang Solat Jumaat di negeri tu dibatalkan dan diganti dengan Solat Zohor. Perkara ni dibuat bagi membendung penularan wabak Covid-19 yang semakin membimbangkan. Bagaimanapun, hal ni masih tertakluk dalam bidang kuasa Jabatan Mufti dan kuasa Ketua Agama Islam Negeri (Sultan/Raja). Sebab itulah, kita boleh tengok ketika PKP 1.0 – sementara Perlis membatalkan Solat Jumaat, majoriti negeri lain tetap melaksankannya. Contohnya seperti Kedah dan Terengganu yang kata Solat Jumaat masih diteruskan, tapi dengan syarat-syarat tertentu macam – khutbah dipendekkan dan jemaah disaran mengambil wuduk di rumah. Tapi, kalau ada majikan yang tak benarkan Solat Jumaat, tindakan tegas akan diambil Sebenarnya, walaupun tak ada undang-undang khusus yang mewajibkan majikan memberikan pelepasan waktu kepada para pekerja mereka untuk tunaikan Solat Jumaat. Tapi, tindakan majikan menghalang pekerja Islam dari menunaikan Solat Jumaat juga tak boleh diterima kerana ia seolah-olah menafikan hak pekerja berkenaan. Oleh itu, kerajaan dah terbitkan satu Garis Panduan Menunaikan Solat Dalam Waktu Kerja untuk rujukan majikan dan pekerja. Dalam garis panduan tu, Kementerian Sumber Manusia dah menetapkan pelepasan waktu sekurang-kurangnya 20 minit untuk solat lima waktu dan 1 jam 30 minit untuk Solat Jumaat bagi pekerja menunaikan solat. Sebab itulah Menteri Sumber Manusia, M Kula Segaran di Parlimen sebelum ni ada tegaskan supaya para majikan kena benarkan pekerja mereka tunaikan solat fardu dan Solat Jumaat. “Majikan perlu beri masa kepada pekerja untuk menunaikan solat. Jika ada majikan yang ingkar, laporan boleh dibuat kepada pihak kementerian dan tindakan tegas akan diambil. Saya janji mengenai perkara ini. Tiada alasan dalam hal ini.” – Katanya dipetik Astro Awani. Jadinya, lepas garis panduan ni dikeluarkan, maka diharapkan takde lagi masalah pasal majikan yang tak benarkan pekerja tunaikan solat fardu atau Solat Jumaat. Sebagai sebuah negara yang mengamalkan toleransi, maka isu-isu sebegini sepatutnya tak lagi berbangkit."
"The case of suspected misconduct by 6 EC members during GE14 was dropped. But why? GE14 was historic because for the very first time, we had a change in government. But many of us who were eagerly waiting for the results remember that it took a very, very long time before it was released. There were accusations made that the Election Commission (EC) was deliberately delaying the results. They were also accused of several other things such as rigging the elections in certain parts of the country and preventing voters from joining the queue to vote by a certain time. While we most probably would have heard of these same accusations in previous GEs, it actually got more serious in GE14 because... Six EC members were accused of misconduct And it didn’t stop at them just being accused because people wanted to take action against them. The 6 EC members are: Tan Sri Othman Haji Mahmood Dato’ Md. Yusop Haji Mansor Datuk Haji Abdul Aziz Khalidin Haji Sulaiman Haji Narawi Dato’ Bala Singam Karupiah Dato’ Leo Chong Cheong Bersih filed a complaint saying that these EC members had breached their duties in ensuring fair elections which would otherwise be known as misconduct. Bersih claimed that the misconduct happened before and during the elections and the major ones were: gerrymandering, which is basically manipulating the boundaries of a constituency so that one party is seen to have more votes taking too long to count the ballots, as the results were still slowly being announced even at 4-5 am having the election day on a weekday instead of a weekend sending out the ballots for the postal voters overseas late, so that they would not be able be vote These were serious allegations, and so a proper and thorough investigation needed to be conducted and so... A tribunal was then set up to investigate On October 17th 2018, it was said that a tribunal would be set up to investigate the case. A tribunal is an independent body appointed by the Yang di-Pertuan Agong set up to investigate and recommend actions to be taken. The Attorney General’s chambers announced that five retired Federal Court judges would be sitting as the panel for the tribunal. As mentioned, the Agong is the one who appoints these these judges to be on the panel and this right to appoint comes from Section 125 (4) of the Federal Constitution. The tribunal appointed under Clause (3) shall consist of not less than five persons who hold or have held office as judge of the Federal Court, the Court of Appeal or a High Court In other words, the 5 ex-judges that were appointed had to have worked as judges in the Federal Court, Court of Appeal or High Court. The ex-judges who were chosen to sit in this tribunal are: Tan Sri Steve Shim, Tan Sri Jeffrey Tan Kok Wha, Tan Sri Zaleha Zahari, Tan Sri Suriyadi Halim Omar, and Datuk Prasad Sandosham Abraham. So the panel had been finalized and all seemed to be going well until... The six EC members resigned even before the tribunal heard the case Apart from appointing the judges, the Agong has the power to “fire” these EC members if the allegations made against them were true. And this power is found in Section 114 of the Federal Constitution: (3) A member of the Election Commission shall cease to hold office on attaining the age of sixty-six years or on becoming disqualified under Clause (4) and may at any time resign his office by writing under his hand addressed to the Yang di-Pertuan Agong, but shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court. A judge can be removed from office for reasons such as bribery, impartiality and conflict of interest. The same grounds are applied the removal of an EC member. So, the Agong would have to go by this law if he wanted to dismiss an EC member from office. But there was no chance of the Agong deciding on anything because the case took a turn before the tribunal was even formed. As mentioned earlier, on October 17th 2018 the government started the process of setting up the tribunal for the case. But what happened was, just ONE day later, five of these members announced their resignations. At that point, only one of them, Datuk Bala Singam was still in office. But just a little after a month later, on November 27th, he announced that he was going to resign as well. These resignations were not immediate, though… they were effective from January 1st 2019. The question at that point was: could the investigation still go through? The tribunal was finally formed on December 5th 2018, but the resignations of the EC members were effective almost a month later. Could the tribunal still treat them as employees of the EC? The dates mentioned here became a very big part of the tribunal decisions because it helped determine whether or not they were a part of the EC when the tribunal was formed. Naturally, a person might have to be fired for breaching his or her duties. But what do you do when they were no longer even a part of that organization? In this case, was there a point in this tribunal continuing the investigations? The story gets more interesting because it was said that since these EC members were resigning (and not getting fired), they would be getting their pensions. Bersih who had filed a complaint against them in the first place stated that these EC members should not be given their pensions (at least not until their names were cleared). This whole news of these EC members resigning was not well- received, especially by the Attorney General, Tommy Thomas. “The resignation of the six Election Commission (EC) members was a deliberate move to frustrate a tribunal set up to investigate their misconduct while in office.”- Tommy Thomas, Attorney General as quoted by The Star But the tribunal decided to still hear the matter on the scheduled date and when they did... The tribunal decided that they will not be investigating the matter When the tribunal convened on May 24th 2019, they wanted to decide whether the case should even be investigated in the first place. So the main point was, did these EC members have to be investigated since they were not a part of the EC anymore? They focused on whether the investigation would have any benefit or would it just end up being academic and by extension, whether it was worth spending money, time and energy for something that would be academic. ""The fundamental question today is this: Is it in public interest or indeed national interest to spend so much time energy and expense in going through potentially the whole cumbersome and objective exercise merely to seek the removal of the six commissioners?” – Tan Sri Steve Shim as quoted by Malay Mail The decision was a 3-2 majority. Meaning, three of the five judges decided that the matter did NOT have to be investigated, while the other two felt that it should. But this isn’t the end Bersih was naturally dissatisfied with the decision made. In a press release that was done on the same day the tribunal convened, Bersih stated that the decision sent out a wrong message that public officials could escape any kind of liability just by resigning. “If the Tribunal had decided to proceed, the panel and the public would have had the opportunity to hear evidences of how these EC members have committed gross electoral misconducts and violations of the Federal Constitution that have denied Malaysians a free and fair election during GE14.” – taken from Bersih’s press release Another person who definitely isn’t happy about the decision our Attorney General, Tommy Thomas. [READ MORE: What does an Attorney General do?]. AskLegal got to join other reporters as Tommy Thomas shared his thoughts where he reminded us that the tribunal only made recommendations. This means that their decision cannot be seen has legally binding and that there may be other paths that can be considered. As such, he said that he will be making 5 recommendations to the Agong but didn’t specify what they were."
"Is it illegal to be an atheist in Malaysia? The Rukun Negara is something all of us had to say every Monday morning during our school assemblies. But how many of us actually understood what was being said, instead of just repeating a bunch of words after the Head Prefect? In case it’s been too long since you saw it, we’ll just remind you that the very first of the five Rukun Negara is “kepercayaan kepada Tuhan”, which translates to “belief in God”. Many of us do have religions and faithfully practice them, while many of us don’t believe in the existence of a higher power. But… what if we fall in the second category? Does the Rukun Negara have any legal bearing on us? Before we get to that, let’s just remember that… Freedom of religion is guaranteed This goes without saying, that while Malaysia is a country with a Muslim majority, people of other faiths can practice their religions freely. This is in the Federal Constitutions and it can be found it Sections 3 and 11 of the Federal Constitution. Section 3: (1) Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation. Section 11: (1) Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it. So, the freedom to practice one’s religion is guaranteed by the law, but the Federal Constitution is silent as to whether freedom to practice a religion also means freedom to NOT practice a religion. Since it’s not in the law, and the Rukun Negara tells us to have belief in God... Does atheism go against the Federal Constitution & Rukun Negara? In November 2017, a Deputy Minister in the Prime Minister’s Department Datuk Dr Asyraf Wajdi Dusuki had said that atheism was unconstitutional. Unconstitutional means it is’t in line with the country’s constitution. He said that atheism was a threat to the religious beliefs of not only Muslims, but of other faiths as well. “We need to understand, that in the Malaysian context, our Federal Constitution states that freedom of religion is not freedom from religion. - Datuk Dr Asyraf Wajdi Dusuki as quoted by The Star. He went on to say that by not having any religion, an atheist was going against both the Rukun Negara and Federal Constitution. A few days after the Deputy Minister had made this statement, a group of lawyers said that he was wrong in saying that atheism in Malaysia was unconstitutional. In short, their arguments were: The Federal Constitution guarantees freedom of religion under Article 11, and this includes the freedom not to believe The Federal Constitution also guarantees the right to life and personal liberty under Article 5. This would include the right not to believe in a religion Freedom of religion does not mean it is compulsory for everyone to have one Atheism does not mean no religion. It means not believing in a deity, a theos or God. Buddhism in its strictest sense does not involve a belief in a god As for the promotion of atheism, it is part of freedom of expression, which is under the Federal Constitution’s Article 10(1)(a), which is the freedom of speech, assembly and association. The lawyers also pointed out that the Rukun Negara is not a law in itself. It is known as a national philosophy and a guide for Malaysians to live by. But there is no penalty for “breaching” the Rukun Negara, so an atheist cannot be said to be breaking the law by not having a faith. The same goes for the Federal Constitution. There is no mention of atheism in it, and there certainly can’t be a punishment for something that doesn’t even exist. Also, something that is unconstitutional isn’t necessary illegal. You must have some religion on paper When it comes to official matters, like obtaining a birth or death certificate, or getting a Malaysian IC, one HAS to indicate a religion on the registration or application form. If you leave it blank or write “tiada agama” (no religion), your application will be rejected. Or they might not even want to take a look at it. We called up JPN just to verify this with them, and they also confirmed that all applications for certificates or identification cards MUST have a religion on it. It’s perfectly fine to change your religion, but that must be reflected in your official documents. There may be some very unique circumstances where JPN may allow you to leave the “agama” section blank, but these are very few in number. Most people still have to list some religion in that section. So, other than compelling you to have a religion on paper, can bodies like JPN take any serious action against you? Once again, because there is no specific law against atheism, they can’t. So isn’t illegal, it’s just not recognized So all in all, it isn’t a crime or something that warrants a penalty if someone doesn’t profess a religion. Yes, he or she might have a hard time when dealing with official matters, but that’s as far as it goes. So it’s fine if you don’t want to practice a particular religion, but you must legally belong to a particular faith. Professing atheism might be a moral wrong for some, but what is and isn't a moral wrong is for the courts to decide. And up to now, no court has decided that atheism is a moral wrong. It must be remembered that all these laws only apply to non- Muslims in Malaysia. For Muslims who renounce their faiths and identify as atheists, the laws of apostasy under Syariah law will apply to them."
"Di Malaysia, korang boleh dipecat sebab keluar group WhatsApp pejabat. Ini sebabnya Boleh dikatakan, WhatsApp sekarang ni dah jadi antara alat komunikasi paling biasa dan efektif di kalangan kita semua. Sebabnya, siapa yang guna SMS lagi sekarang ni kan? Walaupun begitu, kadang-kadang banyak sangat perbualan WhatsApp atau group WhatsApp pun boleh bagi kesan kepada kualiti hidup kita. Malah sekarang ni dah jadi trend untuk syarikat-syarikat untuk buka group WhatsApp sendiri untuk majikan dan para pekerja. Benda ni dibuat untuk mudahkan komunikasi antara ahli syarikat – tak kiralah untuk syarikat besar atau syarikat kecil macam… Asklegal. Walau bagaimanapun, sorang pun tak boleh nafikan yang group WhatsApp ni kadang-kadang boleh jadi amat menjengkelkan, terutamanya bila mesej kerja masuk selepas waktu bekerja, atau masa kita bercuti. Jadi soalannya di sini, boleh ke korang keluar group WhatsApp syarikat tanpa beritahu orang atasan dan rakan sekerja korang? Pekerja Maxis ni sebenarnya dah buat! Untuk soalan di atas tadi, jawapan terbaik yang kitorang boleh berikan adalah dengan satu kes Mahkamah Perusahaan baru-baru ni, Thilagavathy A/P Arunasalam v Maxis Mobile Sdn Bhd (Award No. 1050 of 2019, 27 March 2019). Pada asasnya, kes ni timbul bila ada sorang pekerja ni dah dibuang kerja sebab tinggalkan dua group WhatsApp syarikatnya sebab... dia nak pergi bercuti. Ini latar belakang kisah kenapa hal ni terjadi. Thila (bekas pekerja) adalah Eksekutif Jualan dan Perkhidmatan Maxis, di mana dia dikehendaki hantar Laporan Jualan dan Perkhidmatan Harian melalui WhatsApp kepada pengurus cawangannya. Jadinya, dia pun dimasukkan ke dalam dua group WhatsApp – satu dengan Pengurus dan Penyelia dan satu lagi dengan pekerja-pekerja lain. Ketua Cawangan juga ada beritahu kepada semua pekerja yang diorang kena maklumkan kepadanya dulu kalau diorang nak keluar dari mana-mana group WhatsApp pejabat. Bagaimanapun, Thila tinggalkan satu dari group WhatsApp ni tanpa dapat kebenaran dari orang atasannya. Dalam pembelaannya, dia beritahu yang dia tak tahu pasal dasar syarikat yang kena beritahu pengurus cawangannya dulu sebelum keluar dari group. Disebabkan itu adalah kesilapan pertamanya, dia dah diberi amaran dari pengurus cawangan dan hal tu kembali normal semula, sampailah… Dia buat sekali lagi! Untuk kali kedua ni, dia bukan keluar dari satu group je, tapi dari kedua-dua group dan dia maklumkan kepada satu dari group ni (nota: bukan pengurusnya) yang dia pergi bercuti dan perlukan ketenangan minda dari hal-hal kerja. Dia juga gagal hantar Laporan Jualan dan Perkhidmatan Hariannya untuk beberapa hari. Ini membuatkan Maxis ambil langkah serius terhadap Thila. Dia dah diminta bagi penyata 'tunjuk sebab' (pada dasarnya satu pernyataan bertulis yang menyatakan kenapa tindakan tatatertib tak perlu diambil terhadapnya). Tapi, Maxis dapati alasan-alasannya dalam penyata tunjuk sebab tu tak munasabah, disebabkan lagi dia dah dimaklumkan pasal perkara ni dan diminta beritahu pengurus cawangannya sebelum keluar dari group chat. Selain tu, dia juga sedar dan tahu yang Laporan Jualan dan Perkhidmatan Harian memang normal dihantar melalui group WhatsApp oleh para pekerja. Disebabkan perkara ni, dia dah dipecat oleh Maxis kerana salah laku dan sikap tidak bekerjasama dengan syarikat. Jadi, Thila pun rasa tak puas hati dengan pemecatan tu dan kata Maxis bertindak tak adil terhadapnya. Dia kemudiannya buat keputusan untuk saman Maxis, dan bawa kes ni ke Mahkamah Perusahaan, yang mana dia minta dua benda: Dia nak Maxis kembalikan balik jawatannya sebagai Eksekutif Jualan dan Perkhidmatan. Dapat pampasan sebab ditamatkan pekerjaan secara tak adil. [BACA LAGI: How is a normal Malaysian court different from a tribunal court?] [BACA LAGI: My boss just fired me for no reason, what can I do now?] Tapi, mahkamah setuju dengan Maxis Oleh itu, dalam kes pemecatan yang tidak adil ni, Mahkamah perlu tengok beberapa perkara sebelum membuat penghakiman. Dalam kes Thila, Maxis dah buat dua pertuduhan yang menyebabkan penamatan perkhidmatan Thila: Ia adalah kegagalannya sendiri untuk beritahu Pengurus Cawangan sebelum keluar dari group WhatsApp (dua kali) Dia gagal hantar Laporan Jualan dan Perkhidmatan selama sekurang-kurangnya 7 hari Jadinya mahkamah kena kenal pasti sama ada tuduhan yang dibuat oleh Maxis tu benar dan ada tak bukti untuknya. Juga, kalau betul-betul dia bersalah, mahkamah kena pertimbangkan sama ada hukuman untuknya terlalu keras atau tak. Jadinya, dalam penghakiman tu, mahkamah dapati yang tuduhan Maxis adalah berasas berdasarkan bukti-bukti yang dikemukakan. Maksudnya di sini, kes ni mungkin akan jadi penanda aras untuk setiap group WhatsApp syarikat lain kerana… Keluar dari group WhatsApp syarikat dah sama macam langgar dasar syarikat sekarang ni Secara asasnya, ia dah melanggar dasar syarikat bila seseorang pekerja tu keluar dari group WhatsApp atau apa-apa je jenis ruangan chat, bila dah dinyatakan secara jelas yang diorang tak sepatutnya buat macam tu. Dalam kes ni, Pengurus Cawangan dah bagi amaran kepada pekerja bila dia keluar group buat kali pertama. Mahkamah kemudiannya buat kesimpulan yang Pihak Penuntut telah melanggar kewajibannya untuk menghormati dan dah melanggar syarat pekerjaannya dengan syarikat. Mahkamah nampaknya dah merujuk kepada kes Kamala Loshanee Amabalavanar v Jaffnese Co-Operative Society (1998) untuk kendalikan kes ni. “Dalam penghakiman saya, salah laku yang lalu adalah faktor yang relevan untuk dipertimbangkan. Sekiranya terdapat pengulangan tindakan yang serupa dengan salah laku, kesan kumulatif boleh membenarkan pemecatan... Oleh itu, Pengerusi Mahkamah Perusahaan ada hak untuk mengambil salah laku yang lalu sebagai pertimbangan yang bersesuaian untuk tujuan menentukan hukuman yang bersesuaian untuk salah laku berikutnya.” – Dipetik dari Donovan and Ho. Dalam kata lain, salah lakunya yang lepas, macam keluar group WhatsApp lebih dari sekali dan kegagalannya bagi alasan yang munasabah untuk tindakannya tu, dah membuatkan Maxis cukup justifikasi untuk memecatnya. Tapi apa yang kita kena tahu, ia bukan sebab dia keluar dari group WhatsApp je yang telah buatkan Thila dipecat. Tapi dia juga dengan sengaja melanggar kontrak pekerjaannya apabila dia gagal menghantar Laporan Jualan dan Perkhidmatan Harian dalam group tu juga. Mahkamah Perusahaan selanjutnya memerhatikan: ""Syarikat ... berhak untuk memberikan semua arahan yang munasabah dan undang-undang mengenai cara kerja penubuhan itu harus dijalankan dan jika arahan mereka itu dilanggar dan pekerja seperti Penuntut bertindak dengan cara yang tidak sepatutnya... oleh sebab itu kepatuhan atau tingkah laku yang tidak berasas adalah salah laku yang seriu ... ""- Dipetik dari Donovan and Ho. Oleh itu, mahkamah menyatakan bahawa kedua-dua perbuatannya, pasal keluar group WhatsApp dan tak hantar laporan adalah satu kesalahan serius, dan munasabah bagi Maxis untuk memecatnya. Jadi, kalau korang nak elakkan diri daripada pergi ke mahkamah dengan Syarikat korang, mungkin jalan terbaiknya adalah dengan… Semak dengan bos korang dulu, sebelum keluar dari group WhatsApp syarikat Keluar dari group WhatsApp mungkin tak la nampak macam kesalahan yang serius sangat, terutamanya bila kita tengoknya dalam konteks komersial. Bagaimanapun, ada beberapa syarikat yang gunakan media sosial atau group chat untuk bincang hal-hal penting, yang ada kaitan dengan syarikat – di kalangan majikan/pekerja. Kalau syarikat korang dah nyatakan dengan jelas yang group WhatsApp adalah alat komunikasi rasmi di syarikat, sebaiknya janganlah korang keluar dari group tu tanpa bagi apa-apa sebab yang munasabah. Kalau alasan korang tu dianggap tak munasabah oleh syarikat, korang boleh dianggap dah lakukan kesalahan serius dan tak mustahil korang akan dipecat kerananya. Jadi, kalau korang memang nak elakkan diri dari diganggu lepas waktu kerja atau masa korang bercuti, mungkin korang boleh cuba dan mute group chat syarikat korang tu. ;)"
"In Malaysia, you CAN get fired for leaving your company's WhatsApp group. Here's why WhatsApp is probably the most common, effective way to communicate these days. Because, who even SMS-es anymore, right? But sometimes, having too many conversations or WhatsApp groups can affect your quality of life as well. It’s a common trend now, for companies to create WhatsApp groups among employers and employees. This is done to ease communication between the members of the company – whether in a huge MNC or a small company like...AskLegal. However, one can’t deny that this can sometimes get pretty overwhelming, especially when work messages come in after working hours, or when you’re on a holiday. So the question here is, can you leave your company WhatsApp group without informing your superiors and colleagues? A Maxis employee actually did it! The question above is best answered with a recent Industrial Court case, Thilagavathy A/P Arunasalam v Maxis Mobile Sdn Bhd (Award No. 1050 of 2019, 27 March 2019). Basically, the case came up when the employee was dismissed for leaving two of her company WhatsApp groups because...she wanted to go on a holiday. Here’s a short background story on what exactly happened. Thila (the ex-employee) was employed by Maxis as a Sales and Services Executive, where she had to send daily sales and service reports via WhatsApp to her branch manager. She was then added into two WhatsApp groups – one with the Managers and Supervisors, and another with all the other employees. The Head of Branch also informed all the employees that they will have to notify him if they intend to leave any of the company WhatsApp groups. However, Thila left one of the Whatsapp groups’ without the permission from her superiors. In her defence, she stated that she was not aware of the company policy stating that she had to inform her branch manager. Since it was a first time mistake, she was let off with a warning from the branch manager and things were back to normal again until… She did it...again! This time however, she left BOTH the company WhatsApp groups and had informed one of the group chats (take note: not her manager) that she was going on holiday and needed a peace of mind away from work. She also failed to send in her Daily Sales and Services reports for several days. This led to Maxis taking serious action against her. She was asked to give a ‘show cause’ statement (basically a written statement stating why no disciplinary action should be taken against her). But, Maxis found her reasons in the show cause statement to be rather unreasonable, as she was already been alerted about this and was asked to inform the branch manager before exiting a group chat. Also, she was very much aware that the Daily Sales and Services reports are normally sent via WhatsApp chat groups by the employees. Due to this, she was dismissed by Maxis for misconduct and uncooperative attitude towards the company. So, Thila was unhappy with the dismissal and claimed that it was unfair for Maxis to do so. She then decided to sue them for it, and brought the matter to the Industrial court where she asked for two things: She wanted Maxis to reinstate her to her former position as a Sales and Service executive. Get compensated for the unjust termination of her employment. [READ MORE: How is a normal Malaysian court different from a tribunal court?] [READ MORE: My boss just fired me for no reason, what can I do now?] But then, the court agreed with Maxis So, in cases of unfair dismissal, the Court has to look into several things before making a judgement. In Thila’s case, Maxis made two allegations that had contributed to the termination of her employment: It was her failure to inform the Branch Manager before exiting the WhatsApp groups (twice) She failed to send the Daily Sales and Service Reports for at least 7 days. The Court now has to identify if the allegations made by Maxis is true and whether there is proof. Also, if she is indeed at fault, the court will have to consider if the punishment for her (ie; the dismissal) is too harsh or not. So, in the judgement of the award, the court found that Maxis’ allegations were true based on the evidences given. Which means, this might just be the case to set a benchmark for every other company WhatsApp group because... Exiting a company WhatsApp group is similar to breaking company policy now Basically, it is a breach of the company policy when an employee exits a WhatsApp chat group or any kind of chat space for that matter, when it has been expressly mentioned that they shouldn’t do so. In this case, the Branch Manager had already given the employee warning when she left the group for the first time. The court concluded that the Claimant had breached the implied duty of mutual respect and had breached her terms of employment with the Company. The court relied on the case of Kamala Loshanee Amabalavanar v Jaffnese Co-Operative Society (1998) to address all of that: “In my judgement, past misconduct is a relevant factor to be taken into consideration. If there is a repetition of similar acts of misconduct the cumulative effect may justify dismissal...Thus the learned Chairman of the Industrial Court was right to take the past misconduct as a relevant consideration for the purpose of determining the appropriate punishment for the subsequent misconduct.” In other words, her past misconducts such as leaving the WhatsApp group more than once and not being able to give a good reason for it, has given Maxis enough justification to fire her. But do note, it wasn’t just the gesture of leaving the WhatsApp group alone that had caused her dismissal. She had also willfully breached her employment contract when she failed to send in the Daily Sales and Service Reports in the group chat as well. The Industrial Court further observed: “The Company… [is] entitled to give all reasonable and legal directions regarding the manner in which the work of the establishment should be conducted and if their directions are flouted and workers such as the Claimant behave in an insubordinate manner... therefore such obedience or insubordinate behaviour is a serious misconduct…” – as quoted by Donovan and Ho. So, the court stated that both her conducts, in relation to leaving the WhatsApp groups and not submitting the reports has amounted to a serious misconduct, and it was reasonable for Maxis to fire her. Therefore, if you want to avoid going to court with your Company, maybe it’s best to... Check with your boss before leaving the company WhatsApp group Quitting a WhatsApp group may not seem like a very serious offence, especially if it’s in a commercial context. However, there are some companies that use social media or chat groups to discuss important, company related matters among employers/employees. If your company has clearly stated that the WhatsApp group is the official form of communication in your company, it’s best not to leave the group chat without giving a valid reason for doing so. If your reason for leaving is considered unreasonable by the Company, it can amount to a serious misconduct and you can be fired for it. So, if you really want to avoid being bugged after working hours or when you’re on a holiday, perhaps you can try and just mute your company chat group for a year instead. ;)"
"In Malaysia, can you cut your neighbour's tree if it grows into your compound… and steal its fruit? [Klik sini untuk artikel Bahasa Malaysia] So it’s been awhile since your neighbour’s mango tree has been growing over your fence. You’ve been putting up with it all this time but it’s starting to get irritating because the branches are obstructing your view AND they are a hazard. You’re sitting there wondering if you might get into trouble if you cut those branches. Also, many of the mangoes seem to be growing over your fence and they’re falling into your compound. You feel that you should give them back to your neighbour. But… can you actually take the fruit for yourself? This may sound like something petty and like something that can’t have a law of its own but…. There actually is a law for this When branches of your neighbour’s tree are growing into your compound, these are known as overhanging branches, so it’s actually a thing. Most countries do have laws against overhanging branches. In Australia, each state has different laws for it. In Malaysia, it is the law of private nuisance that is applied… because well, having something growing into your compound is a nuisance. Private nuisance is defined as the unlawful interference with the use and enjoyment of land. There are three elements to private nuisance, all of which must be satisfied if you are to hold your neighbour accountable. The plaintiff (you) owns the land or has the right to possess it; The defendant (your neighbour) actually acted in a way that interferes with the plaintiff's enjoyment and use of his or her property; and The defendant's interference was substantial and unreasonable. So by letting their tree grow into your compound, they might be liable for private nuisance if the overhanging branches majorly affect how you use your home. If it poses a safety risk, they will most likely be liable. But what if you don’t like the tree growing into your compound because it just looks ugly or it’s ruining the view from your home? The law also says that... If it hangs over your compound, it’s yours So, even if you can’t sue your neighbour for private nuisance, you might still be able to do something about those branches… or all the fruit that’s been falling into your veranda. There have been several cases on this subject in many countries, but let’s look at something closer to home first. In mid 2016, the Singaporean High Court had to decide on a case between two neighbours. One woman had let her tree grow into her neighbour’s yard and the branches had become a hazard, especially because there were little children in the house. When the neighbour hired people to cut the tree, the woman prevented the neighbour from doing so by removing the key from the crane that was used to cut the tree. The court held that the neighbour had all the right to cut any branches that were over her compound and the woman was in the wrong for preventing them from doing so. Lemmon and Webb is another case, albeit reaaaally old, cuz this happened in 1894. The English courts held that: A neighbour could cut back branches overhanging his property without giving notice to the owner of the tree provided he could do so without entering the other’s land. So you CAN cut parts of a tree that grow into your compound (or take any fruits that grow on these branches) but... You can’t take anything that grows over your neighbour’s compound So once something is no longer within your compound, you no longer have the right to do anything about it, because it’s no longer causing any obstruction on your property. Anything that is within your neighbour’s compound is theirs and if you remove anything from there, YOU can be sued for trespassing their property. Like it was said in Lemmon’s case above… if you want to do something about the obstruction, it must be “without entering the other’s land”. So, climbing over the fence to steal fruit that grows on your neighbour’s compound would amount to theft, because it’s your neighbour’s property. And you certainly don’t want to be caught for theft because the penalty for that is pretty heavy. We’re talking jail time and stuff. Some trees belong to the government Almost all housing areas have trees growing near the pavements or outside the homes. And a common misconception might be, that since they’re growing in no particular house, no one really owns them and anyone can take any fruit or flower on it. But a lot of people might not know that any plant that grows in a public space belongs to the Majlis Perbandaran of the area. So taking any part of such a plant or tree is actually illegal and the penalty for it varies from town council to town council. So the bottom line is… if you’re gonna remove any part of a tree, make sure it’s on your property. If it isn’t, it’s best to just steer clear and leaf if alone."
"AirAsia wanted to sue KLIA2 but ended up suing the Aviation Commission... wait, what? In mid May 2019, it was announced that AirAsia and its sister company AirAsia X were going to take MAVCOM to court. AirAsia wasn’t going to sue MAVCOM in court. Instead it was filing a judicial review against MAVCOM, but we’ll explain what this is about in a bit. If you have no idea who MAVCOM is, they’re the Malaysian Aviation Commission. Their main role is to handle matters related to civil aviation from an economic and commercial stand. So it’s part of their job to also take complaints from airline users as well as resolve disputes within the aviation industry. So what exactly happened for AirAsia to want to take them to court? Well, it actually didn’t start with MAVCOM, but with the company that manages klia2. In 2015, AirAsia sued Malaysia Airports This is when AirAsia sent a letter of demand to Malaysia Airports Holdings Berhad, the company that owns most of the airports in Malaysia. The lettter had said that AirAsia was going to take legal action against Malaysia Airports Holdings Berhad (MAHB) because it had suffered a huge loss due to MAHB’s actions. AirAsia operates only in klia2 and it said that because klia2 was poorly maintained, AirAsia had lost a large number of customers. And as a result, it had suffered losses of almost RM409 million. The letter stated: “MAHB has failed and/or breached its contractual duties and duty of care which has caused AirAsia to suffer and continue to suffer losses as a result of MAHB’s breach”. But Malaysia Airports didn’t just sit back and listen to all these allegations. So what happened next was... Malaysia Airports sued AirAsia back (!) One of the things AirAsia was unhappy about was the high passenger service charge (PSC) fee that was being imposed on them. To them, this was also one of the reasons that their number of passengers had decreased. AirAsia stopped collecting this PSC fee from its customers as they felt that klia2 was so bad, that it didn't warrant the PSC fee. So, AirAsia had stopped paying the PSC fee to Malaysia Airports after some time (it amounted to around RM 7 million a month). Because AirAsia wasn’t paying their monthly dues, Malaysia Airports sued Air Asia instead for non-payment. Malaysia Airports said that it wasn’t them, but MAVCOM who decided the PSC fee amount, so there was nothing they could do about it. Malaysia Airports were merely collecting the fee, and Air Asia was obliged to pay them that fee. But this wasn’t all... AirAsia’s top executives were sued by Malaysia Aiports for defamation. The latter claimed that a lot of remarks made as well things posted about them were very untrue, and that it was tarnishing their image. But this didn’t end here because... Then, AirAsia sued Malaysia Airports… again (!!) By now, the legal battle between the two had been going on for about four years, and neither party wanted to admit defeat. Remember we mentioned that in 2015, Air Asia had asked for RM 409 million in damages from Malaysia Airports? Well, they still hadn’t received the money for that. So in May 2019, AirAsia sent Malaysia Airports a notice saying that they were going to take legal action again. They reiterated the same concerns that were mentioned in the earlier letter of demand in 2015. AirAsia stressed again that they had suffered a big loss because klia2 was not as good as it should be. “These include cancellations and loss of revenue from multiple runway closures, apron defects, damage to two aircraft due to malfunctions in MASSB’s infrastructure and sensors, a fuel line rupture at klia2 Pier P, internet outages and loss of customers,” -Taken from the notice served by AirAsia to Malaysia Airports So now, AirAsia still wanted to claim this amount back from Malaysia Airports. But they didn’t want to go to court at this point. Instead, they wanted to settle the matter via mediation, which is an out of court settlement. Mediation and arbitration are two types of out of court settlements which most big corporations use because there are some benefits to it which traditional courts may not have. For example, out of court settlements give parties a lot of leeway and freedom to agree on a dispute on their own terms. So, AirAsia’s notice to Malaysia Airports basically stated that they were claiming RM 480 million worth of damages this time (more than in the 2015 letter) and they wanted to do this via mediation. All mediation cases have a mediator, and in this legal saga, MAVCOM was to be the mediator. And then, Air Asia “sued” MAVCOM (!!!) So as mentioned, MAVCOM, being the Aviation Commission, was supposed to resolve the dispute between AirAsia and Malaysia Airports. It is a requirement for disputes in the aviation industry to be first resolved through mediation. However, Malaysia Airports had rejected going into any mediation proceedings with AirAsia. When mediation or other forms of dispute resolution methods fail, MAVCOM is still supposed to step in and settle the dispute between the two parties. This is actually a legal requirement, as it can be found in Sections 74 and 75 of the Malaysian Aviation Commission Act 2015. Section 74: (1) Any dispute between two or more providers of aviation services regarding any matter under this Act shall first be resolved through mediation. (2) Notwithstanding any provision in the Mediation Act 2012 [Act 749] to the contrary, the parties shall resolve the dispute through mediation within a period of thirty days or such longer period as the Commission may approve which shall not exceed sixty days. Section 75: If the parties to the dispute fail to resolve the dispute through mediation within the time specified under subsection 74(2), the Commission shall commence to decide on the dispute. However, MAVCOM actually refused to decide on the dispute between the two. There haven’t been any solid reasons given as to why MAVCOM has done so, but AirAsia is taking them to court to challenge this refusal to decide. AirAsia contends that because it’s a statutory duty, in other words, a legal duty, MAVCOM cannot escape from it. But remember we mentioned that they were filing for a judicial review against MAVCOM’s decision instead of suing them? You might be wondering why... Filing for a judicial review means you challenge a decision made in court. So in this case, AirAsia wants to challenge MAVCOM’s decision instead of directly holding them accountable. A judicial review means that the decision of certain body will reconsidered by the courts. However, it’s not the rights or wrongs of the decision is that looked at, but the way in which the outcome was reached. So, the courts will only look at how MAVCOM came to their decision, and based on that, it can be upheld (maintained) or overturned (changed)."
"Boleh ke kita rakam polis bila diorang tahan kita dekat sekatan jalan raya? Artikel ini diterjemahkan dari bahasa Inggeris. For the English version, click here. Boleh dikatakan, bila kita nak buktikan sesuatu atau nak guna sesuatu yang boleh dijadikan bukti, benda pertama yang kita buat adalah ambil phone dan mula rakam atau tangkap gambar. Benda inilah yang paling mudah dibuat untuk simpan bukti yang akan sokong dakwaan kita nanti. Kalau korang rasa dalam keadaan masalah atau bahaya, korang juga mungkin akan rakam kejadian yang jadi, supaya korang boleh buat laporan nanti. Sejak dua menjak ni, kitorang sebenarnya ada dapat soalan yang tanya sama ada merakam anggota polis yang tahan korang dekat highway atau sekatan jalan raya tu salah di sisi undang-undang? Kitorang pun ditanya sama ada anggota polis dibenarkan atau tak suruh korang berhenti dari merakam. Tapi, sebelum kita tengok perkara ni dengan lebih mendalam lagi, mungkin bagus juga untuk korang tahu yang… Tak ada undang-undang yang larang korang rakam sesiapa di tempat awam Sebenarnya, tak ada undang-undang di Malaysia ni yang menghalang seseorang tu dari tangkap gambar atau rakam video orang lain di tempat awam. Tapi dalam masa sama, dah jelas dan terang yang korang tak boleh ambil gambar berunsur lucah atau apa-apa yang boleh menjejaskan reputasi seseorang. Bagaimanapun, undang-undang tak ada halangan untuk korang ambil gambar/rakam orang di tempat awam. Disebabkan tak ada larangan, dengan kata lain, korang boleh merakam seseorang tu selagi korang tak bertindak melampaui batas. Seksyen 509 Kanun Keseksaan menyatakan: Barang siapa dengan maksud hendak mengaibkan kehormatan seseorang, menyebut apa-apa perkataan, membuat apa-apa bunyi atau isyarat, atau menunjukkan apa-apa benda, dengan maksud supaya perkataan atau bunyi itu didengar, atau supaya isyarat atau benda itu dilihat oleh seseorang itu, atau mengganggu kesantunan seseorang itu, hendaklah diseksa dengan penjara selama tempoh yang boleh sampai lima tahun, atau dengan denda, atau dengan kedua-duanya. Jadi, kalau korang ambil gambar atau video yang ada unsur tak baik atau lucah terhadap seseorang, ia satu kesalahan serius dan korang mungkin boleh dipenjara 5 tahun atau didenda atau kedua-duanya sekali. Tapi, macam mana kalau seseorang tu dah menyakiti kita secara lisan/fizikal atau bagi ancaman kepada kita? Korang mesti nak rakam diorang untuk dijadikan bahan bukti bila buat laporan polis nanti kan? Sekali lagi, undang-undang tak kata apa-apa pasal ni. Jadinya, tak ada halangan untuk korang dari merakam seseorang dalam kes yang macam ni. Dengan syarat, korang tak mengganggu privasi seseorang tu atau buat rakaman berunsur tak baik terhadap diorang. Ia bukan hanya melibatkan seseorang yang mengambil gambar/video orang lain yang tak sesuai. Tapi ia juga termasuk kalau korang stalk seseorang dan ambil gambar dia. Itu pun dianggap sebagai gangguan dan pastinya TAK BOLEH sama sekali. [BACA LAGI: Can you legally stop someone from taking photos of you in Malaysia?] Polis tak terkecuali dari benda ni Walaupun polis biasanya dilihat sebagai pihak berkuasa yang lebih tinggi, tapi tak ada undang-undang yang menghalang korang daripada merakam diorang. Jadinya, kalau korang ditahan masa sekatan jalan raya atau dekat mana-mana je dengan polis, dan korang rasa tindakan tu tak wajar, korang boleh rakam segala percakapan/urusan korang dengan pegawai polis tu. Bagaimanapun, benda ni tertakluk dengan tiga syarat ni: 1. Tindakan merakam tu tak mengganggu pegawai polis menjalankan tugasnya Kalau pegawai polis tu menjalankan siasatan atau tengah buat sesuatu yang penting, korang tak patut rakam diorang kalau ia boleh mengganggu keseluruhan siasatan. Kalau rakaman boleh mengganggu pegawai berkenaan daripada menjalankan tugasnya, dia ada hak untuk minta korang berhenti dari merakam. Sebagai contoh, kalau korang ditahan pada lewat malam dan pegawai polis tu nak periksa kereta korang, korang tak boleh halang diorang dari buat begitu dan tindakan korang yang merakam tak boleh mengganggu proses pemeriksaan. Kalau korang ganggu juga, diorang boleh minta korang berhenti dari merakam. 2. Korang patut beritahu pegawai polis tu yang korang nak rakam Daripada keluarkan phone korang dan terus rakam polis tu, cara yang lebih baik adalah maklumkan dulu yang korang nak rakam perbualan antara korang dan diorang. Cara ni lebih baik dan berbudi bahasa. Walaupun, korang tak perlukan kebenaran daripada diorang, tapi lebih bagus kalau korang bertindak sopan. 3. Jangan fitnah polis Kabanyakan video melibatkan pegawai polis ni muncul kat media sosial dan dari situ jugalah kita tahu pasal benda ni. Korang juga mungkin nak kongsikan video yang korang rakam dekat akaun media sosial korang. Tapi kalau korang nak buat macam tu, sebaiknya perkongsian tu tak ada sebarang komen. Menambah apa-apa ulasan atau kesimpulan yang lain mungkin akan timbulkan masalah kepada korang dan korang mungkin akan dianggap sebagai dah memfitnah pihak polis. Jadi, kalau korang kongsi, pastikan apa yang dikongsi tu adalah fakta tentang apa yang sebetulnya terjadi. Jadi, katakanlah yang korang dah ditahan dan korang rasa ia tak wajar, dan korang pun rakamlah keseluruhan kejadian tu. Korang mungkin akan tanya… Boleh ke rakaman digunakan sebagai bahan bukti di mahkamah? Cubalah kita bayangkan senario ni, ada seorang pegawai minta korang bagi rasuah atau dakwa korang buat benda yang korang tak buat. Dalam kes macam ni, korang mesti nak laporkan perkara ni kepada pihak berkuasa kan? Tapi dalam masa sama, korang kena juga ada beberapa bukti supaya korang ada kes kuat terhadap polis yang dituduh. Jadi soalannya, kalau korang ada rakaman yang polis tu minta rasuah, boleh ke korang gunakannya di mahkamah? Untuk jawab soalan ni, kita kena tengok Akta Keterangan 1950. Seksyen 3 dalam akta tu mengatakan, apa saja “dokumen” boleh digunakan sebagai keterangan di mahkamah. ""keterangan"" termasuklah – (a) semua pernyataan yang dibenarkan atau dikehendaki oleh mahkamah sebelum itu oleh saksi-saksi yang berhubungan dengan perkara-perkara yang difikirkan oleh siasatan: pernyataan sedemikian disebut keterangan lisan; (b) semua dokumen yang dikeluarkan untuk pemeriksaan mahkamah: dokumen sedemikian dipanggil bukti dokumentari; Tapi, apa sebenarnya ""dokumen""? Bahagian 3 juga menyatakan: “dokumen” ertinya apa-apa hal yang dinyatakan, diperihalkan, atau bagaimana jua pun digambarkan, atas apa-apa benda, bahan, barang atau artikel, termasuklah apa-apa hal yang terkandung dalam cakera, pita, filem, runut bunyi atau apa jua pun peranti lain, dengan menggunakan – (b) apa-apa rakaman visual (sama ada imej kaku atau bergerak); (c) apa-apa rakaman bunyi, atau apa-apa jua pun rakaman elektronik, magnetik, mekanikal atau rakaman lain dan walau bagaimana jua pun dibuat, atau apa-apa bunyi, dedenyut elektronik, atau apa jua pun data lain; Jadi, pada dasarnya, apa-apa rakaman, sama ada audio atau visual, mahupun imej masih dianggap sebagai bukti yang boleh dibawa ke mahkamah. Bagilah kerjasama kepada abang dan akak polis kita Ya betul, mahkamah akan terima rakaman sebagai keterangan bukti yang boleh digunakan di mahkamah. Tapi, korang semua mesti ingat, bila korang rakam percakapan dan urusan korang dengan pegawai polis, pastikan korang tetap sopan dan berbudi bahasa. Sebab, kalau korang berkelakuan kasar terhadap anggota polis, korang mungkin boleh dianggap membawa ancaman keselamatan kepada diorang. Jadi ingat, selalulah bersikap berhemah dan mesra."
"Ini apa yang pemandu Grab kena tahu bila buat pemeriksaan kereta di PUSPAKOM [Click here for English version] Masa Pilihan Raya Umum ke-14 (PRU-14) tahun lepas, antara janji kempen Pakatan Harapan (PH) adalah menegakkan hak pemandu e-hailing (macam Grab, myCar dan sebagainya), tapi dalam masa sama tak mengetepikan hak para pemandu teksi. Cuba nak tunaikan janji dan buat keseimbangan, Menteri Pengangkutan, Anthony Loke ada buat pengumuman yang pemandu e-hailing dan teksi sekarang ni akan diletakkan dalam peraturan sama bermula pada 12 Julai 2019 ni. Ini bermakna, semua pemandu e-hailing dan teksi kena dapatkan lesen Kenderaan Pengangkutan Awam (PSV), buat pemeriksaan kesihatan dan hantar kereta diorang buat pemeriksaan berkala. Bagaimanapun, tindakan ni dah mendatangkan pandangan berbagai, sama da ia baik ataupun tak. Tapi pada 14 April lepas, kitorang dah dijemput ke sidang media PUSPAKOM, dan CEO-nya Mohammed Shukor ada bagi penjelasan pasal prosedur pemeriksaan kereta. Dia juga kata hal ni dilakukan untuk pastikan kualiti perkhidmatan dan tolak dakwaan bahawa ia membebankan. “Ini bukan untuk membebankan pemandu e-hailing, ini adalah kelebihan untuk semua” – kata CEO PUSPAKOM, Mohammed Shukor kepada ASKLEGAL. Ada banyak maklumat berguna yang diberikan dan kitorang tak dapatlah nak beritahu semuanya kat sini. Tapi kalau korang nak tahu juga, korang boleh rujuk slide dari PUSPAKOM dekat website diorang. Dan jangan risau, kitorang ada rujuk beberapa page dari slide tu untuk dipersembahkan dalam artikel ni. Berbalik pasal e-hailing, PUSPAKOM beritahu kitorang – terdapat sekitar 200,000 kenderaan e-hailing kat luar sana, dan… Korang boleh buat pemeriksaan kereta pada mana-mana hari (Isnin sampai Ahad) Sebelum kitorang beritahu korang yang PUSPAKOM ni mungkin akan dapat kemasukan kereta secara besar-besaran sebab nak buat pemeriksaan, kitorang nak beritahu dulu yang PUSPAKOM bukanlah sebuah agensi penguatkuasaan. Ia sebenarnya cuma satu badan yang menjalan pemeriksaan kenderaan. Dalam kata lain, tugas PUSPAKOM adalah memperakui kereta korang tu layak, dan kalau tak layak – pihak JPJ akan buat penguatkuasaan. “PUSPAKOM adalah sebuah syarikat pemeriksaan kenderaan dan bukan merupakan penguatkuasa atau pembuat undang-undang. PUSPAKOM prihatin dengan kesesuaian kenderaan melalui pemeriksaan kenderaan yang selaras dengan Akta Pengangkutan Jalan 1987 dan kepatuhannya terhadap standard dan peraturan berkaitan lain.” – Jabatan Komunikasi & Khidmat Pelanggan PUSPAKOM. [BACA LAGI: IS YOUR CAR SAFE TO BE DRIVEN ON MSIAN ROADS? THIS RM50 PUSPAKOM CHECK WILL TELL YOU] Sejak rakyat Malaysia diperkenalkan dengan aplikasi e-hailing yang membuatkan kita mudah pergi “ke sana ke mari”, industri e-hailing nampaknya terus berkembang. Pada tahun lepas sahaja, pihak berkuasa pengangkutan tempatan dah meluluskan permit kepada 11 syarikat e-hailing baru. Ini yang buatkan PUSPAKOM menjangkakan kira-kira 200,000 kenderaan e-hailing akan berada di jalan raya. Dan memandangkan kerajaan akan menguatkuasakan peraturan-peraturan baru untuk e-hailing ni tak lama lagi (12 Julai ni, dah dekat dah pun!), korang fikir pemandu-pemandu e-hailing yang sibuk tu ada masa ke untuk ikut? Malah, pemeriksaan baru PUSPAKOM juga diperlukan oleh peraturan baru ni. Tapi PUSPAKOM beritahu kitorang – dari 1 April sampai 10 April, cuma 35 dari 200,000 pemandu yang buat pemeriksaan kenderaan diorang. Dan kalau korang tertanya-tanya “macam mana PUSPAKOM akan uruskan semua 200,000 kenderaan ni?”, PUSPAKOM beritahu kitorang bahawa diorang ada kapasiti yang cukup untuk menguruskannya. Buat masa sekarang, PUSPAKOM ada lebih dari 50 pusat operasi di serata negara, dan untuk mengendalikan sejumlah besar kereta e-hailing, mereka dah buat perkara – perkara berikut: 18 pusat pemeriksaan dibuka 7 hari seminggu 10 pusat pemeriksaan dibuka 6 hari seminggu 19 pusat pemeriksaan dibuka 5 hari seminggu, tapi dengan 2 jam masa tambahan dari jadual biasa harian. Memperkenalkan pusat pemeriksaan bergerak Kalau korang adalah salah seorang pemandu e-hailing yang nak ambil peluang dengan masa operasi baru PUSPAKOM ni, korang boleh klik kat sini untuk tahu pusat PUSPAKOM mana yang sesuai dengan masa dan memudahkan korang. Jadi, selain kita tahu yang diorang ni ada sumber untuk mengendalikan semua kereta ni, diorang juga beritahu kitorang… Proses pemeriksaan cuma ambil masa 60 minit je Untuk orang Malaysia macam kita ni yang guna kereta untuk pergi balik kerja, kita cuma pergi PUSPAKOM kalau kita beli/jual kereta terpakai. Kalau korang pernah buat benda ni, proses tu dikenali sebagai pemeriksaan tukar milik. Untuk pemandu e-hailing dan kereta diorang, proses pemeriksaannya lain sikit sebab korang tak tukar milik kenderaan dengan sesiapa. Tapi proses pemeriksaan yang dijalankan akan memastikan kereta iu sesuai untuk tujuan membawa penumpang secara komersial. Jadi ini bermakna, PUSPAKOM akan periksa sama ada brek kereta berfungsi dengan baik, ada cermin gelap yang melanggar peraturan tak dan sebagainya. Ada juga sedikit pemeriksaan tambahan macam untuk meletakkan iklan pada kereta. Kitorang tak boleh nak lalui semua proses dan beritahu semuanya pada korang, tapi carta aliran pemeriksaannya korang boleh akses kat sini dan ada carta yang korang boleh tengok kat bawah. Hanya kereta berusia lebih 3 tahun yang kena diperiksa Pada sesiapa yang nak maklumat tambahan, TAK semua pemandu e-hailing dan kereta diorang kena lalui pemeriksaan PUSPAKOM, sebab kitorang diberitahu yang ia cuma untuk kereta berusia lebih 3 tahun. Terdapat beberapa jenis pemeriksaan kereta 'di atas 3 tahun' ni (dan ada yuran yang berbeza). Kalau korang nak gambaran ringkas pasalnya: Pemeriksaan awalan dengan yuran RM75 Pemeriksaan semula kalau pemandu gagal pemeriksaan awalan. Yuran tambahan RM25 Pemeriksaan berkala untuk memastikan kenderaan itu layak untuk perkhidmatan setiap tahun. Yurannya RM55 Tapi, kalau korang nak lebih lagi maklumat pasal jenis-jenis proses pemeriksaan, ia ada dalam page 12 slide kalau korang nak tengok. Oh! satu lagi, mesti ada di antara korang yang terfikir proses ni akan ambil masa yang lama. Jangan risau, PUSPAKOM dah buat jaminan yang proses ni hanya akan ambil masa 60 minit, dan ini akan membawa kita ke point seterusnya… Korang boleh guna aplikasi Seperti mana yang kitorang beritahu di awal artikel, penekanan keperluan pemeriksaan baru ni – tak bermaksud nak bagi beban kepada pemandu e-hailing. PUSPAKOM juga yakin yang ia akan beri manfaat kepada semua pihak, sebab semua orang akan tahu yang kenderaan membawa diorang berada dalam keadaan baik. Kalau korang betul-betul fikir pasal benda ni, korang mesti tak mahu Grab yang bawa korang tu tiba-tiba berhenti tengah jalan kan? Dan selain memperkenalkan waktu operasi baru di beberapa pusat PUSPAKOM, diorang juga ada aplikasi yang korang boleh gunakan untuk tetapkan temujanji. Aplikasi tu dipanggil sebagai MyPUSPAKOM. Dengan guna aplikasi ni, korang bolehlah elak dari beratur panjang sebelum kereta korang diperiksa. Walaupun PUSPAKOM dah bersedia nak menguruskan 200,000 buah kereta, korang mesti tak nak buat pemeriksaan ni last minute, lebih-lebih lagi nak elakkan beratur dan tunggu lama."
"Encouraging someone to commit suicide is a crime in Malaysia....even by Instagram poll On May 13th 2019, a teenager committed suicide by jumping off the 3rd floor of a shop lot. Her death made global headlines because she had run a poll on Instagram asking her followers whether she should “L” or “D” which presumably stood for “live” and “die”. It was reported that 69% voted for “D”. Many who read the news were naturally angry and shocked, and this news also got the attention of our lawmakers. Ramkarpal Singh, a lawyer and Bukit Gelugor’s MP has said that those who voted for the girl to die should be held responsible. But is encouraging someone to commit suicide actually illegal in Malaysia? The upfront answer is that it’s possible because... Suicide itself is a crime in Malaysia A person who has already committed suicide obviously cannot be punished, so this law was enacted for people who attempted suicide, but survived it. Malaysia’s laws on suicide can be found in the Penal Code. Section 309 of the Penal Code states: Whoever attempts to commit suicide, and does any act towards the commission of such offence, shall be punished with imprisonment for a term which may extend to one year or with fine or with both. If a person has survived a suicide attempt, he or she will be sent to the hospital if needed, but once they recover, they’ll have to face trial in court. If found guilty, they may be sent for counselling and therapy and possibly given a jail sentence. While several Ministers have asked for this law to be removed, at the time of writing, the law is still in effect. Encouraging someone to commit suicide is also a crime There are many instances where you can be considered an accomplice or accessory to a crime even though you didn’t help to commit it. For instance if someone were to tell his friend how to murder his wife, he would be an accomplice to the murder even though he didn’t kill his friend’s wife. Similarly, for suicide, there is an actual law directly stating that it’s a crime to encourage someone to kill themselves. So, when Ramkarpal Singh said that he wanted those who voted for the girl to die to be held responsible, he wasn’t just simply saying it out of anger, because there actually IS a law for it. Section 306 of the Penal Code states: If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine. ‘Abet’ means to assist someone. In this case, it would be assisting someone in carrying out the act of suicide or to encourage/push them to commit suicide. However, in the case of this Sarawakian girl, another law in the Penal Code will apply because she is a minor. This can be found in Section 305 of the Penal Code which states: If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide shall be punished with death or imprisonment for a term which may extend to twenty years, and shall also be liable to fine. So because the girl was a minor, a harsher sentence can be imposed on those who had voted for her to kill herself. It should be pointed out that even if the authorities press charges against those who voted for her killing herself, it doesn’t mean they are automatically guilty. Some of them might have valid arguments when they go to court, for example, not knowing what “D” in the poll stood for. What may seem harmless, can be deadly In many countries, such as the UK, New Zealand, Australia and Ireland, attempting suicide is not a crime, however, encouraging or assisting someone to commit suicide is. An example would be the case of an Australian named Graham Morant who had encouraged his wife, Jennifer to commit suicide. He had even taken her to a hardware store to purchase the items she later used to take her own life. Graham was charged with two crimes and sentenced to 10 years in jail. This was under Section 311 of Queensland’s Criminal Code Act 1889: encouraging someone to commit suicide and also aiding/assisting them to do so. The only difference between these countries and Malaysia is that in Malaysia, suicide attempts themselves are criminal acts. But in each case, no matter which country, the judge won’t immediately slap a jail sentence and fine on someone who is found guilty. The circumstances and facts of the matter will be the deciding factor for the sentence given. As social media users, we have to remind ourselves that behind accounts that post suicidal thoughts or messages, there are human beings like ourselves who have problems. If you come across such a message, it might be best to send them a message asking if they’re okay. In more serious cases like that of the Sarawakian girl, it’s best to inform the authorities as soon as you see it. For those of you who are going through depression and need someone to talk to, feel free to reach out to Befrienders at the numbers below:"
"Singapore's Fake News law is 553% longer than Malaysia's. What are the differences? Recently, Singapore passed the Anti-Fake News law which has garnered quite a bit of global attention...but not in a good way. It has been predicted that this will further lower Singapore’s already low Press Freedom ranking (as mentioned by Cilisos) – Where their current position is 151 out of 180. Malaysia on the other hand has jumped 22 places this year and we’re currently at #123! Yay us! So, how exactly did we move up and what led to Singapore’s downfall when it came to this? Basically, the Singaporean government introduced their Anti-Fake News Act recently. And if you don’t already know, Malaysia is currently in the talks of repealing (removing) the Act in our country, which was previously enforced by the former Government. The Malaysian Act came about mainly because the former Prime Minister, Najib Razak stated that the Anti-Fake News Act protects Malaysia from security threats. However, this changed when the new Government took over and we’re currently still trying to repeal it, despite Dewan Negara rejecting the repeal of the Anti-Fake News Act. Now that you know this, you’d probably be wondering, why is Malaysia running away from the Anti-Fake News Act while Singapore is embracing it? Malaysia wanted it to prevent disharmony So, the previous government introduced the Anti-Fake News Act (AFNA) in 2018 to tackle the spreading of fake news among Malaysians – which then led to a lot of backlash as matters such as press freedom was at stake. There were also arguments on whether or not it was even necessary for the government to enact a new Act while there were already existing Acts such as the Sedition Act and the Communications and Multimedia Act 1998. [READ MORE: Here's how you may get in trouble with Malaysia's Fake News law] So, if you’re wondering what exactly this Act defines, fake news is all forms of feature such as visuals, audio recordings or any other form that is capable of suggesting an idea via social media that is wholly or partially untrue. But the question now is, how do they classify something as unreal? The definition stated in the Act is somewhat broad, but there are some examples laid out in the Act to help people understand what exactly it is. The Act outlines 8 sample scenarios under Section 4(3), which illustrates how someone can get into trouble with the law. (You can see them here) Also, besides getting in trouble for sharing an untrue news/fact, the Act also states that you can also get in trouble for being the source of the fake news. The current stand of the Act remains uncertain because of the rejection by Dewan Negara. So, since we’re still 50-50 about it...what’s happening in our neighbours’ side? Singapore wants the Act to prevent disharmony As we mentioned earlier, Singapore joined the bandwagon and has now implemented the Protection from Online Falsehoods and Manipulation Act (Pofma) due to several reasons. Here’s what their PM had to say: If we do not protect ourselves, hostile parties will find a simple matter to turn different groups against one another and cause disorder in our society. – PM Lee Hsien Loong , as quoted by the South China Morning Post. So, the Singaporean government’s main concern is the fear of disruption of harmony and the law protects the multiracial city from any “exploitation”. However, the country is receiving some backlash due to this, because two things might happen: The government now has the power to dictate news in the country. Press freedom will be tied down. With all that being said about Singapore’s new law, we went through both the Acts and found several differences that makes Singapore’s law different from Malaysia’s Anti-Fake News Act... Some key differences between the two Acts In other words, they’re same same, but different (Just like our nasi lemak and...then there’s theirs). But apart from the differences in the names of the Acts, there are also a few additions to the Singaporean Act that made a significant difference from ours. The Punishment Singapore: Among the proposed measures are the penalties in the Act. POFMA carries a jail sentence up to 10 years and a fine of S$ 1 million, depending on the severity of the case. Malaysia: (we’re nowhere close to Singapore’s fine lah) Section 4 of the Malaysian Anti-Fake News Act states: “(1) Any person who...maliciously creates, offers, publishes...any fake news or publication containing fake news commits an offence and shall on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding six years or to both…” – paraphrased by Asklegal. In other words, if anyone “maliciously” creates or publishes fake news, they will be sentenced to a jail term of 6 years (previously 10 years), a fine not more than RM500,000.00 or both if found guilty. Law on “Bots” Bots are basically social agents that communicate autonomously on social media. In this case, the Singaporean government wants to prevent bots from influencing a particular court of discussion and/or the opinions of the public. Singapore: The Singaporean Fake News Act has an extensive list on Bots when it comes to posting fake news. (3) Where an inauthentic online account or a bot is used — (a) to communicate in Singapore the statement mentioned in subsection (1); and (b) for the purpose of accelerating such communication, The person is guilty of an offence under the subsection shall be liable on conviction – Malaysia: There are no laws on online bots and fake accounts, but the Act focuses on individuals and organizations that commit the crime. The power to decide what is real and what isn’t Singapore: The government set up a body called the “Competent Authority” which is basically a government elected authority (a group of people) who have been appointed to decide what a fake news is and what’s not. Malaysia: The Act states that a Minister will be appointed and will be given the power and the responsibility on the law when it comes to deciding what a fake news is and isn’t. Tun M critizised Singapore...and Singapore replied Basically, both the Prime Ministers couldn’t see eye to eye in this matter. They were basically counter arguing their thoughts on the countries respective Fake News Acts during a press conference last month. Here are some quotes from the conference: Tun Mahathir: ""When we have a law that prevents people from airing their views, we are afraid the government itself may abuse the law, as what has happened with the previous government...We do not want any government, this one and the succeeding ones, to make use of the law for the government itself to create and tell fake news in order to sustain themselves.” – Tun Mahathir as quoted from New Straits Times. Lee Hsien Loong: ""The French have done so, the Germans have done so, and the Australians have just done something similar...Singapore has to do it, and we had a long process with a select committee which deliberated on it for almost two years.” – Lee Hsien Loong as quoted from New Straits Times. Based on that, it’s pretty clear that there are two schools of thought here regarding this matter. However, it should be taken into account that fake news is a serious problem. This is because, if is it left and un-monitored, fake news can potentially cause fear, misunderstandings and disrupt peace in a country. While these distinctions sort of make it look like the Acts are very different from each other, we must note that the aim and reason for the Act is to prevent fake news from spreading across the internet. But at the end of the day, perhaps the best way to prevent fake news or getting into any legal trouble with AFNA, it’s best to take a step back and consider your intentions and the consequences that come along with it. Limiting press freedom also has its negative effects, so perhaps there is no right or wrong in this situation but we could limit fake news by checking on the legitimacy of the news first. P.S. – just a friendly reminder, as much as the current government is trying to repeal the Act, the Anti-Fake News Act is still very much active in Malaysia, and can get you into trouble for any fake news publication on the internet. So, be wise and be nice. :)"
"4 perlaksanaan hudud yang selalu kita salah faham Sejak kebelakangan ni, isu hudud kembali lagi kedengaran bila negara jiran kita – Brunei mengumumkan pelaksanaan hukuman rejam terhadap pesalah zina dan homoseksual. Sebenarnya, Brunei dah pun mengenalkan hukuman hudud atau “Perintah Kanun Kesalahan Jenayah Syariah” pada tahun 2013. Tapi ia hanya mula dilaksanakan pada 2014, untuk kesalahan-kesalahan tertentu. Bagaimanapun, baru-baru ni nampaknya Brunei dah menarik balik pelaksaan rejam selepas ia mendapat bantahan hebat di peringkat global. Tapi, hukuman lain seperti potong tangan terhadap pencuri masih diteruskankan dan ia dah menjadikan Brunei sebagai satu-satunya negara di Asia Tenggara yang mengamalkan undang-undang syariah di peringkat kebangsaan. Tapi sampai ke hari ni, tak kiralah dari kalangan orang bukan Islam atau orang Islam sendiri, ramai yang masih lagi terkeliru dengan hudud. Oleh itu… Apa hudud tu sebenarnya? Pada asasnya, hudud adalah salah satu cabang dari Undang-Undang Jenayah Islam/Syariah, iaitu: Qisas – Hukuman balas untuk kesalahan membunuh dibalas dengan bunuh dan mencedera dibalas dengan mencedera. Tapi kalau membunuh dengan tak sengaja dan mencedera dengan tak sengaja, hukumannya adalah denda (atau diyat). Hudud – Hukuman berdasarkan al-Quran dan Hadis (kata-kata/perbuatan Nabi Muhammad SAW). Khas untuk kesalahan zina, minum arak, tuduh orang berzina (Qazaf), murtad (keluar dari Islam), mencuri dan merompak. Takzir – Hukuman yang takde dalam al-Quran dan Hadis, diserahkan kepada undang-undang sedia ada dan hakim. Hukuman boleh jadi macam penjara, buang daerah dan sebagainya. Jadinya di sini, undang – undang Islam tak terhad pada hudud semata-mata dan ia juga boleh menerima pakai undang-undang sedia ada. Berkenaan dengan hukuman untuk kesalahan hudud pula: Berzina – Sebat 100 kali untuk yang belum kahwin dan rejam untuk yang dah kahwin. Tuduh orang berzina (qazaf) – 80 kali sebat kalau tak bawa saksi. Mencuri – Potong tangan kalau ada pengakuan atau ada 2 saksi. Merompak – Kalau membunuh masa merompak hukumannya bunuh. Merompak dengan merampas harta orang lain, hukumannya potong tangan dan kaki. Minum arak – Sebat 40 kali. Murtad – Bertindak keluar dari Islam, hukumannya bunuh. Bila kita dengar hukuman-hukuman ni, tak dapat dinafikan yang ia nampak kejam dan ganas untuk kita, mahupun sesetengah pihak. Tapi sebenarnya, hukuman-hukuman ni tak mudah nak dilaksanakan dan banyak syarat yang kena dipatuhi. Contohnya… 1. Orang miskin yang mencuri TAK BOLEH dihukum hudud Untuk kes mencuri, hukuman hududnya adalah potong tangan. Tapi hukuman ni tak boleh dijalankan terhadap kanak-kanak dan orang gila. Malah, ada beberapa situasi yang menghalang hudud dari dilaksanakan seperti: 1. Kecurian berlaku dalam kalangan ahli keluarga Contoh: Isteri curi duit suami, anak curi duit ayah atau adik curi barang abang. 2. Mencuri sebab terpaksa atau nilai barang yang dicuri terlalu kecil Contoh: Seseorang tu mencuri sebab miskin/takde pendapatan/ada pendapatan tapi tak cukup atau nilai barang tu kecil sangat. 3. Mencuri harta awam (sebab semua orang termasuk si pencuri ada hak dengan harta tu) Contoh: Curi penutup besi longkong, kabel elektrik, balak dan sebagainya. 4. Kecurian jadi sebab kelalaian kita Contoh: Kita letak barang yang berharga tu dekat merata-rata tempat atau tempat yang tak selamat. Disebabkan kelalaian kita tu, barang kita dicuri. Selain tu, antara perkara paling penting untuk melaksanakan hukuman hudud (potong tangan) bagi kesalahan mencuri adalah bila adanya pengakuan dari pesalah atau ada dua saksi. Pihak berkuasa juga dilarang dari memaksa suspek dari mengaku. Tapi kalau cukup bukti dan suspek masih tak mengaku dia masih lagi boleh dihukum. Cuma hukumannya bukan hudud, tapi takzir. Hukuman takzir juga dikenakan untuk kesalahan curi harta benda awam yang kita ceritakan tadi. 2. Bukan semua yang murtad dihukum bunuh Satu lagi jenis hukuman kontroversi melibatkan hudud adalah hukuman mati terhadap kesalahan murtad atau keluar dari agama Islam. Murtad boleh jadi dengan cara masuk agama lain, atau isytiharkan diri tak lagi beragama Islam. Bagi bekas Naib Presiden Kesatuan Ulama Dunia – Abdul Hadi Awang, hukuman bunuh terhadap kesalahan murtad tak boleh dilakukan macam tu je, sebab ada lagi syarat-syarat yang kena dipatuhi. Sebab katanya – hukuman mati hanya dilaksanakan kalau orang yang murtad tu mengancam keselamatan negara atau bertindak memusuhi Islam. Kalau dia tak buat benda-benda di atas ni, maka hukuman mati tak boleh dijalankan. Memetik ulasan dari Mufti Perlis, Prof Madya Dr Asri Zainul Abidin pula, beliau kata – pada masa dulu tak ada sempadan negara dan kesalahan murtad boleh dianggap sebagai pengkhianatan (treason). Ini kerana, seseorang yang murtad tu boleh pergi kepada musuh dan mendedahkan rahsia umat Islam. Tapi pada hari ni, dah ada sempadan negara dan hukuman mati dah tak lagi praktikal menurut sebahagian ulama. Hal yang sama dikongsikan oleh pemikir Islam, Dr Taha Jabir al-Alwani yang kata – terdapat 12 ayat dalam al-Quran yang membicarakan pasal murtad, tapi tak disebut satu pun hukuman duniawi yang patut dikenakan kepada pelaku tersebut. Selain tu, ada juga pandangan yang pelaku murtad tu akan diberikan peluang untuk bertaubat sebelum hukuman dijalankan. Ada ulama yang kata beberapa hari dan ada pula yang kata sepanjang hayat. Macam mana pula dengan hukuman sebat dalam hudud? 3. Tangan perotan tak boleh diangkat lebih dari ketiak Ada beberapa kesalahan dalam hudud yang dihukum sebat iaitu minum arak, berzina dan menuduh orang berzina (qazaf). Bagaimanapun, terdapat persoalan macam mana hukuman ni dijalankan dan adakah sebat tu seperti mana hukuman sebat dalam undang-udang sivil ada. Sebenarnya, hukuman rotan dalam hudud taklah seperti yang diamalkan di penjara tu. Sebabnya, ada beberapa syarat yang perlu dipatuhi seperti: Rotan yang digunakan tak terlalu berat atau terlalu ringan. Ketika sebat dilaksanakan tangan perotan tak boleh diangkat hingga nampak ketiak dan tak boleh lebih tinggi dari kepala perotan. Kalau pesalah yang akan dihukum itu sakit, maka hukuman akan ditangguhkan. Jika berlaku ketelanjuran dalam sebatan macam luka, maka pesalah boleh dapatkan pampasan. Hukuman sebat untuk kesalahan minum arak dikecualikan untuk wanita mengikut Mazhab Hanafi. Malah, Imam Syafie (Mazhab Syafie) menggariskan secara spesifik bahawa bahagian muka, kemaluan, rusuk serta bahagian-bahagian lain yang boleh mendatangkan risiko adalah dilarang untuk disebat. Di zaman Khalifah Umar al-Khattab hukuman sebat juga dijalankan dengan cara… “Saidina Umar al-Khattab (Khalifah Islam ke-3) pernah menghukum sebat seorang pesalah di zamannya. Beliau berkata kepada tukang sebat: ""Sebatlah dia dan jangan diangkat tanganmu sehingga ternampak ketiak."" Ketika Umar melihat pukulan agak kuat daripada sepatutnya, beliau berkata: ""Kamu tidak menghukum tetapi membunuhnya.'' 4. Pesalah zina digalakkan bertaubat, dari dihukum Dalam isu zina pula, pelaku zina tak digalakkan mengaku kesalahan, sebab menutup aib (keburukan) diri itu lebih utama. Malah, lepas diorang mengaku pun, diorang ni diberikan peluang untuk bertaubat. Dalam sejarahnya, Nabi Muhammad SAW sendiri pernah menolak dari menghukum pesalah zina yang mengaku sendiri. Kisahnya, seorang lelaki ada datang berjumpa Nabi dan mengaku yang dia dah berzina. Tapi Nabi berpaling muka dari lelaki tu dan tak mahu melayannya. Tapi dia tetap datang berjumpa dengan Nabi dan minta supaya dihukum, dia datang jumpa Nabi 4 kali. “Nabi kemudiannya menemui kaum lelaki itu, dan bertanya adakah dia ini waras? Kaumnya kata ya – dia tidak gila. Keesokan harinya lelaki ini datang lagi minta supaya dia dihukum. Setelah itu barulah Nabi menghukumnya,” –Hadis riwayat Bukhari, diceritakan oleh Mufti Perlis, Dr Asri Zainul Abidin. Melalui hadis ni, dah jelas bahawa Nabi tak mahu menghukum orang yang melakukan zina sebab ia dilihat sebagai aib (keburukan) yang sepatutnya ditutup. Seperti mana yang kita diberitahu, hukuman untuk kesalahan zina untuk yang belum kahwin (100 kali sebat) dan untuk yang dah kahwin (rejam). Tapi hukuman ni juga diperdebatkan oleh para ulama Islam. Ini kerana, diorang berpendapat hukuman antara kedua-dua ni macam tak padan dan perbezaannya sangat jauh. Sebabnya, kalau kita tengok pelaksanaan hukuman sebat 100 kali, ia boleh dikata cukup ehsan sampai tak boleh mencederakan. Tapi tiba-tiba ada pula hukuman yang cukup jauh berbeza iaitu rejam. Disebabkan hal ni, ulama besar al-Azhar, Imam Abu Zahrah ada kata yang hukuman rejam ni bukan datang dari Islam. Sebab katanya, al-Quran hanya kata hukuman untuk zina – 100 kali sebatan dan bukannya rejam. Pandangan Abu Zahrah kemudiannya disokong oleh ulama masyhur seperti Mustafa al-Zarqa dan Dr. Yusuf al-Qaradawi, cuma mereka kata hukuman rejam yang pernah dijalankan (di zaman dulu) tu adalah takzir dan bukannya hudud. Maknanya, ia hukuman yang ada pada zaman tu, dan pemerintah boleh saja menukar hukuman tu dengan cara yang lain. Mengulas hal ni, Mufti Perlis, Dr Asri pernah mencadangkan kepada Kelantan kalau nak laksana hudud – supaya terima pandangan ni dan hukuman kepada penzina yang dah berkahwin bukannya rejam, tapi hukuman lain yang tak memperlihatkan Islam ni sebagai agama yang ganas dan tak berperikemanusiaan. Selain tu, proses pembuktian hudud juga cukup ketat sebab memerlukan 4 orang saksi atau pengakuan pesalah untuk kes zina dan qazaf. Tanpa 4 orang saksi atau pengakuan suspek, hudud tak boleh dijalankan. Untuk kes rogol pula, walaupun takde 4 orang saksi, siasatan polis, ujian DNA dan pemeriksaan doktor masih boleh diterima pakai. Cuma hukumannya bukan hudud, tapi takzir. Tapi dalam banyak keadaan, pelaksanaan hudud kadang-kadang tak seperti yang dituntut Walaupun pelaksanaan hudud bukanlah mudah dan banyak syarat yang perlu dipatuhi, tapi kita juga dilihatkan dengan pelbagai negara yang gagal dalam melaksanakan hudud seperti yang dituntut. Hal ini jugalah yang jadi di Pakistan. Disebabkan undang-undang hudud negara tu perlukan 4 orang saksi untuk kes zina, ramai di kalangan wanita yang teraniaya akibat jenayah rogol. Contohnya macam kes Jehan Mina pada tahun 1981 yang dah dirogol, tapi dia pula yang dihukum sebat 100 kali sebab mengandung anak luar nikah. Malah tindakan melulu dari anggota masyarakat terhadap pelaku murtad pun banyak kali berlaku di sana. Negara Sudan pula melaksanakan hukuman syariah pada tahun 1991. Tapi terdapat banyak kelemahan dalam pelaksanaannya termasuklah dalam satu kes ni. “...tertuduh pada asalnya mengadu dirogol oleh dua orang lelaki semasa mengumpul kayu. Dia adalah seorang janda dan kehamilannya menyebabkan beliau disabitkan atas jenayah zina di mahkamah tinggi dan mahkamah rayuan.Setelah tiga tahun menghabiskan tempoh dalam penjara, beliau akhirnya dibebaskan oleh mahkamah agung kerana tidak ada bukti untuk menangkis tuduhan rogol yang dikemukakan oleh beliau, sedangkan lelaki yang merogolnya langsung tidak diapa-apakan.” – Dipetik dari terbitan Majlis Agama Islam Selangor (MAIS). Afghanistan juga melaksanakan hukuman hudud seperti potong tangan, tapi pelaksaannya tak dapat diterima dan bertentangan dengan syarat-syarat yang ditetapkan. Ia termasuklah laporan bahawa ada insiden di mana pesalah tak diberikan apa-apa pertolongan atau bantuan perubatan setelah tangan diorang dipotong. Di Arab Saudi pula, menurut sumber – kesalahan hudud di sana tak dikanunkan. Maka terserah kepada hakim-hakim untuk laksanakan atau tak. Hakim-hakim itu hanya melaksanakannya terhadap orang luar (pendatang). Seorang Profesor Syariah yang melihat hukuman potong tangan di Arab Saudi berkata cara orang ramai bersorak dan memaki hamun pesalah bukanlah cara Islam – Tun Abdul Hamid, bekas Ketua Hakim Negara. Selain hudud, KEADILAN itu sebenarnya lebih utama Sistem Syariah dan Sistem Sivil di Malaysia secara asasnya boleh duduk bersama, tapi tidak secara setaraf. Ini kerana, peruntukan telah pun ditetapkan di bawah Kanun Keseksaan (Penal Code) dan kalau Hudud hanya dilaksanakan untuk orang Islam je, maka ia dah melanggar Perlembagaan Persekutuan – Perkara 8 yang menyebut tentang kesamarataan dan keadilan di sisi undang-undang. Selain tu, pelaksanaan hudud juga memerlukan perancangan yang cukup teliti, sebab kalau tersilap langkah ia dibimbangi akan menganiaya pihak yang tak bersalah. Kalau nak dilaksanakan pun, pandangan mana yang akan diambil? Sedangkan kita boleh nampak ramai ulama yang membahaskan isu ini. Tapi disebalik hudud yang kita perkatakan ni, ada satu lagi konsep yang lebih tinggi dan penting untuk dimartabatkan. Ia adalah KEADILAN. “Jika isu pengagihan kekayaan dan kekuasaan gagal diuruskan dengan baik, keadilan jenayah terutamanya yang membabitkan harta akan gagal berfungsi dengan baik juga. Sebab itulah, tidak cukup jikalau kita percaya hanya dengan hudud dan qisas semua masalah masyarakat akan selesai.” – Hazman Baharom, dipetik dari bukunya; Perihal Keadilan:Tinjauan Wacana Keadilan Moden."
"4 perlaksanaan hudud yang selalu kita salah faham Sejak kebelakangan ni, isu hudud kembali lagi kedengaran bila negara jiran kita – Brunei mengumumkan pelaksanaan hukuman rejam terhadap pesalah zina dan homoseksual. Sebenarnya, Brunei dah pun mengenalkan hukuman hudud atau “Perintah Kanun Kesalahan Jenayah Syariah” pada tahun 2013. Tapi ia hanya mula dilaksanakan pada 2014, untuk kesalahan-kesalahan tertentu. Bagaimanapun, baru-baru ni nampaknya Brunei dah menarik balik pelaksaan rejam selepas ia mendapat bantahan hebat di peringkat global. Tapi, hukuman lain seperti potong tangan terhadap pencuri masih diteruskankan dan ia dah menjadikan Brunei sebagai satu-satunya negara di Asia Tenggara yang mengamalkan undang-undang syariah di peringkat kebangsaan. Tapi sampai ke hari ni, tak kiralah dari kalangan orang bukan Islam atau orang Islam sendiri, ramai yang masih lagi terkeliru dengan hudud. Oleh itu… Apa hudud tu sebenarnya? Pada asasnya, hudud adalah salah satu cabang dari Undang-Undang Jenayah Islam/Syariah, iaitu: Qisas – Hukuman balas untuk kesalahan membunuh dibalas dengan bunuh dan mencedera dibalas dengan mencedera. Tapi kalau membunuh dengan tak sengaja dan mencedera dengan tak sengaja, hukumannya adalah denda (atau diyat). Hudud – Hukuman berdasarkan al-Quran dan Hadis (kata-kata/perbuatan Nabi Muhammad SAW). Khas untuk kesalahan zina, minum arak, tuduh orang berzina (Qazaf), murtad (keluar dari Islam), mencuri dan merompak. Takzir – Hukuman yang takde dalam al-Quran dan Hadis, diserahkan kepada undang-undang sedia ada dan hakim. Hukuman boleh jadi macam penjara, buang daerah dan sebagainya. Jadinya di sini, undang – undang Islam tak terhad pada hudud semata-mata dan ia juga boleh menerima pakai undang-undang sedia ada. Berkenaan dengan hukuman untuk kesalahan hudud pula: Berzina – Sebat 100 kali untuk yang belum kahwin dan rejam untuk yang dah kahwin. Tuduh orang berzina (qazaf) – 80 kali sebat kalau tak bawa saksi. Mencuri – Potong tangan kalau ada pengakuan atau ada 2 saksi. Merompak – Kalau membunuh masa merompak hukumannya bunuh. Merompak dengan merampas harta orang lain, hukumannya potong tangan dan kaki. Minum arak – Sebat 40 kali. Murtad – Bertindak keluar dari Islam, hukumannya bunuh. Bila kita dengar hukuman-hukuman ni, tak dapat dinafikan yang ia nampak kejam dan ganas untuk kita, mahupun sesetengah pihak. Tapi sebenarnya, hukuman-hukuman ni tak mudah nak dilaksanakan dan banyak syarat yang kena dipatuhi. Contohnya… 1. Orang miskin yang mencuri TAK BOLEH dihukum hudud Untuk kes mencuri, hukuman hududnya adalah potong tangan. Tapi hukuman ni tak boleh dijalankan terhadap kanak-kanak dan orang gila. Malah, ada beberapa situasi yang menghalang hudud dari dilaksanakan seperti: 1. Kecurian berlaku dalam kalangan ahli keluarga Contoh: Isteri curi duit suami, anak curi duit ayah atau adik curi barang abang. 2. Mencuri sebab terpaksa atau nilai barang yang dicuri terlalu kecil Contoh: Seseorang tu mencuri sebab miskin/takde pendapatan/ada pendapatan tapi tak cukup atau nilai barang tu kecil sangat. 3. Mencuri harta awam (sebab semua orang termasuk si pencuri ada hak dengan harta tu) Contoh: Curi penutup besi longkong, kabel elektrik, balak dan sebagainya. 4. Kecurian jadi sebab kelalaian kita Contoh: Kita letak barang yang berharga tu dekat merata-rata tempat atau tempat yang tak selamat. Disebabkan kelalaian kita tu, barang kita dicuri. Selain tu, antara perkara paling penting untuk melaksanakan hukuman hudud (potong tangan) bagi kesalahan mencuri adalah bila adanya pengakuan dari pesalah atau ada dua saksi. Pihak berkuasa juga dilarang dari memaksa suspek dari mengaku. Tapi kalau cukup bukti dan suspek masih tak mengaku dia masih lagi boleh dihukum. Cuma hukumannya bukan hudud, tapi takzir. Hukuman takzir juga dikenakan untuk kesalahan curi harta benda awam yang kita ceritakan tadi. 2. Bukan semua yang murtad dihukum bunuh Satu lagi jenis hukuman kontroversi melibatkan hudud adalah hukuman mati terhadap kesalahan murtad atau keluar dari agama Islam. Murtad boleh jadi dengan cara masuk agama lain, atau isytiharkan diri tak lagi beragama Islam. Bagi bekas Naib Presiden Kesatuan Ulama Dunia – Abdul Hadi Awang, hukuman bunuh terhadap kesalahan murtad tak boleh dilakukan macam tu je, sebab ada lagi syarat-syarat yang kena dipatuhi. Sebab katanya – hukuman mati hanya dilaksanakan kalau orang yang murtad tu mengancam keselamatan negara atau bertindak memusuhi Islam. Kalau dia tak buat benda-benda di atas ni, maka hukuman mati tak boleh dijalankan. Memetik ulasan dari Mufti Perlis, Prof Madya Dr Asri Zainul Abidin pula, beliau kata – pada masa dulu tak ada sempadan negara dan kesalahan murtad boleh dianggap sebagai pengkhianatan (treason). Ini kerana, seseorang yang murtad tu boleh pergi kepada musuh dan mendedahkan rahsia umat Islam. Tapi pada hari ni, dah ada sempadan negara dan hukuman mati dah tak lagi praktikal menurut sebahagian ulama. Hal yang sama dikongsikan oleh pemikir Islam, Dr Taha Jabir al-Alwani yang kata – terdapat 12 ayat dalam al-Quran yang membicarakan pasal murtad, tapi tak disebut satu pun hukuman duniawi yang patut dikenakan kepada pelaku tersebut. Selain tu, ada juga pandangan yang pelaku murtad tu akan diberikan peluang untuk bertaubat sebelum hukuman dijalankan. Ada ulama yang kata beberapa hari dan ada pula yang kata sepanjang hayat. Macam mana pula dengan hukuman sebat dalam hudud? 3. Tangan perotan tak boleh diangkat lebih dari ketiak Ada beberapa kesalahan dalam hudud yang dihukum sebat iaitu minum arak, berzina dan menuduh orang berzina (qazaf). Bagaimanapun, terdapat persoalan macam mana hukuman ni dijalankan dan adakah sebat tu seperti mana hukuman sebat dalam undang-udang sivil ada. Sebenarnya, hukuman rotan dalam hudud taklah seperti yang diamalkan di penjara tu. Sebabnya, ada beberapa syarat yang perlu dipatuhi seperti: Rotan yang digunakan tak terlalu berat atau terlalu ringan. Ketika sebat dilaksanakan tangan perotan tak boleh diangkat hingga nampak ketiak dan tak boleh lebih tinggi dari kepala perotan. Kalau pesalah yang akan dihukum itu sakit, maka hukuman akan ditangguhkan. Jika berlaku ketelanjuran dalam sebatan macam luka, maka pesalah boleh dapatkan pampasan. Hukuman sebat untuk kesalahan minum arak dikecualikan untuk wanita mengikut Mazhab Hanafi. Malah, Imam Syafie (Mazhab Syafie) menggariskan secara spesifik bahawa bahagian muka, kemaluan, rusuk serta bahagian-bahagian lain yang boleh mendatangkan risiko adalah dilarang untuk disebat. Di zaman Khalifah Umar al-Khattab hukuman sebat juga dijalankan dengan cara… “Saidina Umar al-Khattab (Khalifah Islam ke-3) pernah menghukum sebat seorang pesalah di zamannya. Beliau berkata kepada tukang sebat: ""Sebatlah dia dan jangan diangkat tanganmu sehingga ternampak ketiak."" Ketika Umar melihat pukulan agak kuat daripada sepatutnya, beliau berkata: ""Kamu tidak menghukum tetapi membunuhnya.'' 4. Pesalah zina digalakkan bertaubat, dari dihukum Dalam isu zina pula, pelaku zina tak digalakkan mengaku kesalahan, sebab menutup aib (keburukan) diri itu lebih utama. Malah, lepas diorang mengaku pun, diorang ni diberikan peluang untuk bertaubat. Dalam sejarahnya, Nabi Muhammad SAW sendiri pernah menolak dari menghukum pesalah zina yang mengaku sendiri. Kisahnya, seorang lelaki ada datang berjumpa Nabi dan mengaku yang dia dah berzina. Tapi Nabi berpaling muka dari lelaki tu dan tak mahu melayannya. Tapi dia tetap datang berjumpa dengan Nabi dan minta supaya dihukum, dia datang jumpa Nabi 4 kali. “Nabi kemudiannya menemui kaum lelaki itu, dan bertanya adakah dia ini waras? Kaumnya kata ya – dia tidak gila. Keesokan harinya lelaki ini datang lagi minta supaya dia dihukum. Setelah itu barulah Nabi menghukumnya,” –Hadis riwayat Bukhari, diceritakan oleh Mufti Perlis, Dr Asri Zainul Abidin. Melalui hadis ni, dah jelas bahawa Nabi tak mahu menghukum orang yang melakukan zina sebab ia dilihat sebagai aib (keburukan) yang sepatutnya ditutup. Seperti mana yang kita diberitahu, hukuman untuk kesalahan zina untuk yang belum kahwin (100 kali sebat) dan untuk yang dah kahwin (rejam). Tapi hukuman ni juga diperdebatkan oleh para ulama Islam. Ini kerana, diorang berpendapat hukuman antara kedua-dua ni macam tak padan dan perbezaannya sangat jauh. Sebabnya, kalau kita tengok pelaksanaan hukuman sebat 100 kali, ia boleh dikata cukup ehsan sampai tak boleh mencederakan. Tapi tiba-tiba ada pula hukuman yang cukup jauh berbeza iaitu rejam. Disebabkan hal ni, ulama besar al-Azhar, Imam Abu Zahrah ada kata yang hukuman rejam ni bukan datang dari Islam. Sebab katanya, al-Quran hanya kata hukuman untuk zina – 100 kali sebatan dan bukannya rejam. Pandangan Abu Zahrah kemudiannya disokong oleh ulama masyhur seperti Mustafa al-Zarqa dan Dr. Yusuf al-Qaradawi, cuma mereka kata hukuman rejam yang pernah dijalankan (di zaman dulu) tu adalah takzir dan bukannya hudud. Maknanya, ia hukuman yang ada pada zaman tu, dan pemerintah boleh saja menukar hukuman tu dengan cara yang lain. Mengulas hal ni, Mufti Perlis, Dr Asri pernah mencadangkan kepada Kelantan kalau nak laksana hudud – supaya terima pandangan ni dan hukuman kepada penzina yang dah berkahwin bukannya rejam, tapi hukuman lain yang tak memperlihatkan Islam ni sebagai agama yang ganas dan tak berperikemanusiaan. Selain tu, proses pembuktian hudud juga cukup ketat sebab memerlukan 4 orang saksi atau pengakuan pesalah untuk kes zina dan qazaf. Tanpa 4 orang saksi atau pengakuan suspek, hudud tak boleh dijalankan. Untuk kes rogol pula, walaupun takde 4 orang saksi, siasatan polis, ujian DNA dan pemeriksaan doktor masih boleh diterima pakai. Cuma hukumannya bukan hudud, tapi takzir. Tapi dalam banyak keadaan, pelaksanaan hudud kadang-kadang tak seperti yang dituntut Walaupun pelaksanaan hudud bukanlah mudah dan banyak syarat yang perlu dipatuhi, tapi kita juga dilihatkan dengan pelbagai negara yang gagal dalam melaksanakan hudud seperti yang dituntut. Hal ini jugalah yang jadi di Pakistan. Disebabkan undang-undang hudud negara tu perlukan 4 orang saksi untuk kes zina, ramai di kalangan wanita yang teraniaya akibat jenayah rogol. Contohnya macam kes Jehan Mina pada tahun 1981 yang dah dirogol, tapi dia pula yang dihukum sebat 100 kali sebab mengandung anak luar nikah. Malah tindakan melulu dari anggota masyarakat terhadap pelaku murtad pun banyak kali berlaku di sana. Negara Sudan pula melaksanakan hukuman syariah pada tahun 1991. Tapi terdapat banyak kelemahan dalam pelaksanaannya termasuklah dalam satu kes ni. “...tertuduh pada asalnya mengadu dirogol oleh dua orang lelaki semasa mengumpul kayu. Dia adalah seorang janda dan kehamilannya menyebabkan beliau disabitkan atas jenayah zina di mahkamah tinggi dan mahkamah rayuan. Setelah tiga tahun menghabiskan tempoh dalam penjara, beliau akhirnya dibebaskan oleh mahkamah agung kerana tidak ada bukti untuk menangkis tuduhan rogol yang dikemukakan oleh beliau, sedangkan lelaki yang merogolnya langsung tidak diapa-apakan.” – Dipetik dari terbitan Majlis Agama Islam Selangor (MAIS). Afghanistan juga melaksanakan hukuman hudud seperti potong tangan, tapi pelaksaannya tak dapat diterima dan bertentangan dengan syarat-syarat yang ditetapkan. Ia termasuklah laporan bahawa ada insiden di mana pesalah tak diberikan apa-apa pertolongan atau bantuan perubatan setelah tangan diorang dipotong. Di Arab Saudi pula, menurut sumber – kesalahan hudud di sana tak dikanunkan. Maka terserah kepada hakim-hakim untuk laksanakan atau tak. Hakim-hakim itu hanya melaksanakannya terhadap orang luar (pendatang). Seorang Profesor Syariah yang melihat hukuman potong tangan di Arab Saudi berkata cara orang ramai bersorak dan memaki hamun pesalah bukanlah cara Islam – Tun Abdul Hamid, bekas Ketua Hakim Negara. Selain hudud, KEADILAN itu sebenarnya lebih utama Sistem Syariah dan Sistem Sivil di Malaysia secara asasnya boleh duduk bersama, tapi tidak secara setaraf. Ini kerana, peruntukan telah pun ditetapkan di bawah Kanun Keseksaan (Penal Code) dan kalau Hudud hanya dilaksanakan untuk orang Islam je, maka ia dah melanggar Perlembagaan Persekutuan – Perkara 8 yang menyebut tentang kesamarataan dan keadilan di sisi undang-undang. Selain tu, pelaksanaan hudud juga memerlukan perancangan yang cukup teliti, sebab kalau tersilap langkah ia dibimbangi akan menganiaya pihak yang tak bersalah. Kalau nak dilaksanakan pun, pandangan mana yang akan diambil? Sedangkan kita boleh nampak ramai ulama yang membahaskan isu ini. Tapi disebalik hudud yang kita perkatakan ni, ada satu lagi konsep yang lebih tinggi dan penting untuk dimartabatkan. Ia adalah KEADILAN. “Jika isu pengagihan kekayaan dan kekuasaan gagal diuruskan dengan baik, keadilan jenayah terutamanya yang membabitkan harta akan gagal berfungsi dengan baik juga. Sebab itulah, tidak cukup jikalau kita percaya hanya dengan hudud dan qisas semua masalah masyarakat akan selesai.” – Hazman Baharom, dipetik dari bukunya; Perihal Keadilan:Tinjauan Wacana Keadilan Moden."
"Fun Fact: Malaysian law limits how many people you can borrow money from at one time If you’re lucky enough to have never encountered a “friend” like this, imagine being in this situation: Your friend needs to borrow a large amount of money – say RM10,000 – without going to the bank or loan sharks. He’s already tried approaching a few friends, but quickly found that there aren’t many people willing or able to part with such a large sum of money, 10 years of friendship or not. So, he comes up with a brilliant solution…by borrowing RM500 from 20 friends…and you’re one of them! But did you know that doing so is actually illegal? It’s called illegal deposit-taking Normally, friendly loans are not regulated by any law, except if there’s a contract that you and your friends might have agreed upon. [READ MORE - 5 ways to protect yourself when lending money to friends in Malaysia] But there’s a broadly phrased law in the Financial Services Act 2013 (FSA) which covers accepting “deposits”, which you’ll need a license to take, like what banks and insurance companies need. The FSA normally only regulates financial institutions and payment systems, but like we’ll see below, it can also cover for situations where someone tries to game the system and gets up to no good. We normally understand “deposit” to mean a certain amount of money we put with the bank that we can take back later. The legal definition includes those kind of situations – but the full version of the definition actually covers a lot more: Section 136 of the Financial Services Act (in part, emphasis by Asklegal): “......“deposit” means a sum of money or any precious metal or precious stone, or any article or thing as may be prescribed by the Minister, on the recommendation of the Bank, accepted, paid or delivered on terms under which it will be repaid or returned in full, regardless whether the repayment or return is by way of instalments, with or without interest or any other consideration in money or money’s worth, either on demand or at a time or in circumstances agreed by or on behalf of the person making the payment or delivery and the person accepting it…...” In short, this means if a person accepts money, precious metals, or precious stones, that will be later returned to the owner – that’s considered deposit-taking. It doesn’t matter if the repayment includes interest, or whether it’s paid in full or by installments. Immediately you might see that there are a lot of problems with this broad definition - like, how about security deposits that many companies use, in real estate for instance? This is where the long list of exception to this law come in… Some transactions are exempted from the definition of “deposit” Sometimes, laws are worded very broadly to be designed as a “catch-all” provision, sometimes because it’s a particularly sensitive area that the government can’t afford to have loopholes around (like financial regulation in our current case). There are 3 general exceptions: Deposit payments under a contract for property or services that is refunded if the deal doesn’t go through (like a booking deposit you pay to show genuine interest) Security deposits (like if you rent something expensive and the deposit will be used to cover any damage you cause) Transactions in certain circumstances, or by certain people, set out in Schedule 2 of the FSA Prepare to get a long list of different types of exceptions from Schedule 2. Ready? Let’s go. Money paid is not considered a “deposit” when it’s paid to: The Government Bank Negara A statutory body or local council A co-operative society that has approval of the Malaysia Co-operative Societies Commission, and Bank Negara A farmer’s organization or fishermen’s association Your related or associate corporations Another person under debentures Another person to subscribe to company shares or certain interests in a company Approved issuers of electronic money Another person in a friendly or family setting, where the number of people paying this person does not at any time exceed ten. There are a few more exceptions to “deposits” that apply when certain institutions pay money out, such as moneylenders, but we won’t go into them in detail here. You can find the complete list of exceptions for reference in Schedule 2 of the FSA. The 10 person limit is probably an arbitrary number imposed by the law as they need to watch out for illegal schemes, such as pyramid schemes like JJPTR that happened a while ago, as well as an incident where two men took over RM5,000 for investment illegally. You might also be familiar with a practice called “wang kootu” or a kuutu fund. These funds can also fall under illegal deposit-taking when the number of participants are over 10. [READ MORE - If you lost money in a pyramid scheme in Malaysia, can you get your money back?] [READ MORE - What are ""kutu funds"" and why are they illegal in Malaysia?] So, while it is possible to get someone who owes you money in trouble under this law... There is a much easier way to get your money back You might ask who would enforce such a law since friendly loans are not under the control of any authority. How do you even find out how many people someone has borrowed money from? It’s probably relevant only when the 10 people are close-knit enough to exchange notes and figure out that the borrower is up to something, and choose to report the borrower for illegal deposit-taking. Though, if you’re really just trying to get your money back from someone, the far easier solution to make them pay up is probably filing a small claims procedure with a Magistrate Court. Find out how you can do so with as little as filling up a form and an application fee of RM10 at our article linked below. [READ MORE - If someone borrows money and doesn't pay you back, you can file a small claims procedure]"
"Digi and Celcom are planning to merge. How will this affect their customers? Note: This article was originally written in May 2019. So a few days ago, you might have heard of the news that Digi and Celcom are going to merge to become the largest telco provider in Malaysia. This news led to Digi and Celcom users wondering how they would be affected by the change. While customers of these telcos will definitely face changes with regard to services, there are also changes that will take place from the legal aspect. Whether you’re aware or not, you actually have contracts with your telco providers, which came into effect from the time you started using your mobile number. So now, Digi and Celcom users would have to have new user contracts with the merger. But these telco users have also asked whether Digi and Celcom could easily become one new company, and if this is even legal. It’s common for companies in the same industry to compete with each other to get the most revenue in the market, so it might not make sense for two competitors to simply just...merge. How does competition in an industry work in the first place? Every country has their own “competition laws” and Malaysia’s can be found in the Competition Act 2010. This Act was passed to encourage healthy competition between companies in the same industry and to prevent companies from collaborating illegally. So… why is this Digi-Celcom thing even an issue? Companies merging to become one may seem like a totally harmless thing. But in reality, you as a consumer may be at the losing end. Picture this scenario: Bell and Swan are two separate cosmetic companies, but they’re two large companies. At some point, they decide to merge and become one. Now, Bell and Swan might have catered to different types of consumers and have had very different prices. If consumers had no other option to buy cosmetic products from any other company, they would just end up buying from them, even after they merge. But when Bell and Swan merge, they would probably have the same prices and services and might combine their products. For consumers, this would mean that they would have to pay whatever the price that has been set or buy whatever product this new merger company sells. All because now, instead of two companies to choose from, there’s only one… So, competition laws basically exist to protect consumers from having to buy items at higher prices and having lesser options to choose from. When there are several companies in one industry, the competition in that industry becomes healthy. But when there is just one company that dominates a particular industry, that company is said to be a monopoly. [READ MORE: MYEG was fined RM9.34 million for breaking competition laws. Here’s what happened.] What’s a monopoly and is it even allowed? As mentioned above, a monopoly is when a company dominates a particular market and they have great control on that market – which also means that they have the power to control prices. Monopolies in themselves aren’t illegal in Malaysia and there are actually quite a number in the country. Telekom Malaysia’s high speed broadband and Grab are two good examples. But while they aren’t illegal, they aren’t encouraged either. The government had stated that they intend to bring in more players into various industries, so that there will be a lesser chance for single, dominant companies to control the whole industry themselves. Malaysia isn’t the only country that has done this. In the early 1980s, the US government made a monopoly telephone service split its services into separate companies. Bell Operating Companies was under the control of AT&T Corporation and they were both providing services for local and long distance calls. The split caused them to operate as two separate companies, with one providing local call services, while the other provided long- distance call services. So, for the monopolies that currently do exist, they are allowed to operate, as long as they don’t abuse their position as the dominant one in a particular industry or market. Section 10 of the Competition Act 2010 states: (1) An enterprise is prohibited from engaging, whether independently or collectively, in any conduct which amounts to an abuse of a dominant position in any market for goods or services. Examples of abusing a dominant position would include: directly or indirectly imposing unfair purchase or selling price or other unfair trading condition on any supplier or customer; limiting or controlling— (i) production; (ii) market outlets or market access; (iii) technical or technological development; or (iv) investment, to the prejudice of consumers; any predatory behaviour towards competitors So for as long as a monopoly company doesn’t misuse their position in the industry and doesn’t put the consumers or fellow competitors at a great disadvantage, they’re perfectly legal. So no, the merging of the two telcos isn’t against the law The CEO of Axiata Group Bhd (Celcom’s parent company) has assured that the merger between Digi and Celcom will not be a monopoly. A company in a market or industry must have at least 50-60% of the market share for it to be considered dominant. It has been estimated that the new merger company between Digi and Celcom will only have a 35% share of the market. “This is a converged industry, with mobile going into fixed line and fixed line going into mobile. From that point of view, we make up only one-third of the mobile business pie,” - Tan Sri Jamaludin Ibrahim, CEO of Axiata Group Bhd So while Digi and Celcom are two big players in the telco industry at this point, the merger itself will not put consumers at a disadvantage. There are still several other telcos that consumers can choose from, which means that there will still be a healthy competition within the telco industry. Of course, this is going by the premise that they strictly abide by Malaysian competition laws. In a few years down the road, if the merger follows unhealthy practices that may affect other players in the industry, they will most likely get into a lot of trouble. What’s in it for Digi and Celcom users? Mergers might seem beneficial to the company due to the fact that their revenue will increase, but there are advantages for consumers too. Two companies merging might mean better service and performance due to increased staff, and this would mean that consumers will be served better. A merger that forms a totally new company, like what Digi and Celcom plan to do, will also be able to come up with a new line of products. As ironic as this may sound, this will actually improve competition, since now consumers have more options to choose from."
"If you can't smoke in a plane, why do AirAsia flights still have ashtrays? If you’re a frequent flyer, occasional flyer – or even if you’ve never been on flight before, you’d probably still be familiar with some of the basic rules to follow when boarding a plane. Some of it are as normal as wearing a seat belt during take-off and landing, not bringing certain types of food/beverages into the flight and...the no smoking on board rule. But before we go any further, take note that the no smoking rule does not just apply to AirAsia aircrafts, but to every other aircraft for both domestic and international destinations. If you’ve been observant enough and have a knack for noticing details, you might have also seen ashtrays in the aircraft toilets. So, our curiosity led us to go on board and take off to discuss on why flights have ashtrays in lavatories (toilets), when smoking itself is banned on an aircraft? Perhaps a little backstory on why smoking was banned on board in the first place might help clear this out… How did this ban come about? This might sound crazy to some of you, but there was actually a time when people could smoke 35,000 feet up in the air! Well, you obviously can’t do this anymore, but it was pretty common back in the 50’s and 60’s. So, if it was fine back in the day, why can’t we do it now? Perhaps this is best explained with a tragic story that happened in 1973. A flight from Rio de Janeiro to Paris had to make a crash landing because a fire started off mid air, because a cigarette was thrown in the rubbish bin in the toilet. 123 passengers died and only 11 people survived the crash. This led to several international bodies pushing to stop in-flight smoking as it was not just hazardous to second-hand smokers, but it also poses a threat to cause fire on board. The smoking ban first came about 28 years ago, when the United States banned smoking on domestic flights. Malaysia on the other hand, was a little late to catch up with the rest of the world as we still had smokers up until 1999! But a few years down the road, the smoking ban was finally implemented on almost every flight. So, if you’re wondering now, how come ashtrays are still part of an aircraft if the law states that it’s illegal to smoke on board in the first place? It’s a safety precaution The Federal Aviation Administration (FAA) from the US made a list of the minimum requirements of equipment for planes, which includes an ashtray, which is a legal requirement in every aircraft. But these regulations are only concerning American aircrafts, so how about our homegrown MAS and other planes that land in Malaysia? We managed to get some input from the Malaysian Aviation Commission (MAVCOM) and were told that it is actually a legal requirement for all Malaysian airplanes to have an ashtray on board too. The law pertaining to this is stated under the Civil Aviation Regulations 2016, particularly under Section 100(1) and (2) as such: (1) Smoking shall be prohibited in a Malaysian aircraft. (2) For the purpose of subregulation (1), “smoking” includes smoking using a battery-powered portable electronic device such as e-cigarettes, e-cigs, e-cigars, e-pipes, personal vapourisers, electronic nicotine delivery system or any other similar devices. Basically, the Act states that smoking in all forms, including e-cigarettes aka vaping is prohibited in a Malaysian aircraft. We also found out that the reason why ashtrays have to be part of a plane (it’s normally placed in the toilet or even by the seats) is because it acts as a safety precaution. Let’s look at two scenarios to understand this better: Scenario A: A passenger who is a chain smoker gets a strong urge to smoke while he’s traveling via flight. It is an 8-hour long journey from Kuala Lumpur to Sydney. He then decides to take a few puffs discreetly in the toilet. When he’s done, he realises that there’s no ashtrays provided in the aircraft and decides to dispose his smokey little secret by throwing the cigarette bud in the rubbish bin. Next thing you know, highly flammable things such as tissues catch fire due to the bud, and the plane is forced to make an emergency landing which is potentially a life or death experience. Scenario B: Now imagine the smoker taking a quick smoke in the aircraft lavatory, and he stubs his cigarette in an ashtray that’s provided in the aircraft toilet. This can avoid the whole plane from blowing up or catching on fire, right? So, ashtrays are there to prevent fires or mishaps from happening eventhough it is an offence to smoke in a flight. But there would always be that one person who wants to be badass and tries to break the law. Which might leave you wondering... Does this mean you can still smoke in a plane...and get away with it? It is pretty much established that smoking is highly prohibited on flights. So, if you were to still take a quick puff in the lavatory of the airplane and think that it’s okay as long as you’ve safely extinguished the fire in the ashtray provided...think again. Section 206(2)(a) of the Civil Aviation Regulations 2016 states: “(2) Any person who contravenes any provision specified in Part B of the Third Schedule commits an offence and shall on conviction be liable – (a) where the person is an individual, to a fine not exceeding twenty-five thousand ringgit or to imprisonment for a term not exceeding one year or to both..” Basically, the Act states that any person who commits the offence of smoking as specified under the Act shall be liable to a fine not more than RM25,000.00 or a jail term not exceeding one year, or both. So, before you think it’s okay to smoke in a plane because your flight journey is going to take up to 13 hours and your body is already feeling the symptoms of nicotine withdrawals, you might want to think about the fine and jail sentence that comes along with the offence...which is definitely not worth the quick puff. All in the name of safety Some regulations are set by the Aviation authorities in order to avoid any tragedies from happening on flights. As much as ashtrays are provided to prevent people from causing a fire, it does not justify that smoking in a plane is okay. Second-hand smokers may be affected by the smoke as well. In most instances, there are more than a 100 passengers on board, including children. Perhaps, smokers could use a nicotine patch to control withdrawal symptoms during long flight journeys, which also helps someone to eventually quit smoking. This way, you could kill two birds with one stone, if that’s what you’re looking for as well."
"Certain home renovations in Malaysia may not require permits. Here's why Be it building a wall, redoing the tiles or extending our porch, almost all of us would have had our homes renovated at some point in time. It seems like a pretty simple and straightforward thing, but did you know that renovating a house has laws that govern it, too? While it is very common, renovating means that you will be altering some part of your house and this will: change the whole look of the surroundings affect how others are able to use the property For this reason, a part of the Street, Drainage and Building Act 1974 lays down the laws on what’s allowed and what’s not when it comes to renovations. There’s a process to be followed before you start renovation works in your home and failing to follow that process might result in: you getting fined the renovation getting demolished the next buyer facing troubles, in case you decide to sell your house So if you were to start renovation works on your home without going by the set rules… don’t be surprised if someone from your Majlis Perbandaran comes knocking on your door because... You may need a permit to start renovating The very first part of the process would be obtaining a permit from your Majlis Perbandaran. To clarify, not all renovations require permits but we will explain that in detail below. But let’s talk about why a permit is needed in the first place. You may think, it’s my house and my land, so why do I need to follow specific laws for it? While you may own your piece of land, the land that is around your house may belong to your neighbour or even the Majlis Perbandaran itself. This can be determined in the grant of a land where the clear boundaries of a piece of a land are already stated. So a permit is mostly needed for two things: 1. To ensure that you don’t build on someone else’s land As mentioned above, some of the land around your house may belong to someone else. You share a boundary with your neighbour and if you happen to for example, build a wall that extends into their compound, that would make your renovation illegal. Land that is outside your compound belongs to the Majlis Perbandaran. And this includes the roads, pavements and even the ground on which trees outside your compound may grow. So if you want to widen your veranda and it extends onto the main road, you would be building on the town council’s land, which is also illegal. To prevent this from happening, a permit has to be issued to confirm that you are only building or renovating on your land. 2. To make sure that safety standards are met This goes without saying. But permits are also needed to ensure that whatever renovation is done will not be a hazard to anyone in the area. Illegal renovations that are poorly done can cause injuries or even death to anyone in the area. This is why the proposal of the renovation that you give to your Majlis must have a detailed description of who the renovator is and what exactly he plans to do. If a particular design is dangerous, the Majlis will reject your permit. It all depends on what kind of property you live in To make this simpler, we’re going to break this part down into strata-titled properties (condos and apartments) and landed properties. Condominiums and apartments If you live in a condo/apartment, you’ll have to get a letter of authorization from your property management. The management has the right to reject your application if it doesn’t meet the guidelines set by the management. This is subjective because it depends on what kind of rules your condo/apartment has set for renovations. In most places, you’ll have to pay a deposit to the management which will be refunded after the renovation, provided no part of the property was damaged in the process. Landed properties Stricter laws apply to landed properties because in these cases, the Majlis Perbandaran of each town is involved. For landed properties, you will need to draw up a plan of your proposed renovation and submit it with a specific fee to the Majlis. Again, the Majlis can reject the proposal if it doesn’t meet specific guidelines. Some very minor renovations don’t require permits, but because there’s no specific list as to what requires permits or authorizations, it’s best to check with your Majlis before proceeding with anything. If there’s no permit needed, then you’re good to go. But if you’re told that a permit is required, it’s best for you to submit a plan of your renovation together with the fee so that you don’t get in trouble later. Majlis can “undo” your renovation Each town council has different laws with regard to renovations, which is why it’s always best to check with your local town council before starting on any work. While their basic guidelines might generally be the same, certain things like fees, fines and grace periods are usually different. Your Majlis Perbandaran has the right to demolish or break any renovation that is illegal or was done without their permission. As mentioned above, you are not allowed to build on another person’s land. So, if your neighbour complains that part of your new wall has actually been built on their land, the Majlis has the right to ask you to tear it down if your neighbour’s claims are proven to be true. If the Majlis does the demolishing work for you, they will pay for the cost of that first, and you will have to reimburse them later. But in the event that the Majlis forced you to stop renovation or tore down what you already built, BUT you actually had a valid and legal permit to renovate (and it was mistakenly thought that you didn’t)… then the Majlis is supposed to compensate you. Section 33 of the Street, Drainage and Building Act 1974, sub section 5: Local authority to pay if erection lawful (5) If such projection, encroachment or obstruction has been lawfully made, the local authority shall pay the expenses of the removal or alteration thereof and make reasonable compensation to every person who suffers damage by such removal or alteration and, if any dispute arises touching the amount of such compensation, the same shall be ascertained in the manner hereinafter provided. So basically, if your renovation was perfectly legal but the Majlis had made an error and said it wasn’t, and that caused your renovation works to be undone or halted, you must be paid back for your losses. But what if some town council officers show up at your place and you tell them... “But I didn’t even know it was illegal!”… Well… you wouldn’t automatically get in trouble. The majority of the cases of illegal renovations are people who had bought homes that had already been renovated by previous owners. If you genuinely had no idea that the extension of your balcony that was done years ago was done without a permit, you wouldn’t automatically be slapped with a hefty fine. Your Majlis Perbandaran will most likely give you time to apply for a permit, provided the balcony meets the safety standards set by them. For example, in 2016, Majlis Perbandaran Subang Jaya came up with a way for homeowners to “legalize” their home renovations retrospectively. Which means, homeowners who had previously done renovations to their homes without permits could now obtain permits to make their renovations perfectly legal. This also applied to people who had bought homes they didn’t know were illegally renovated. And they wouldn’t be fined for this even though technically, they had breached the law before this. However, at the end of 2018, MPSJ ended the scheme and anyone who had applied after that would be fined. The scheme had positive responses due to the fact that there were a large number of people who had done illegal renovations to their homes and they now could remedy the issue. This also helped people who wanted to sell their homes, as the next buyer wouldn’t have to worry about having to pay a fine for something they didn’t do. If you end up buying a home from a previous owner, it’s best to check that everything is legal, if there have been any renovations done to the house. Also, make sure to obtain any certificates or permits from the previous owners to keep as proof, just in case the need arises for you to produce them to the authorities."
"5 perkara yang korang kena tahu tentang Ketua Hakim wanita pertama Malaysia Buat kali pertamanya dalam sejarah badan kehakiman Malaysia, seorang wanita dilantik sebagai Ketua Hakim Negara. Nampaknya, hakim tertinggi di Malaysia ialah Datuk Tengku Maimun Tuan Mat, dan beliau dilantik menjadi Ketua Hakim Negara ke-16, selepas bekas Ketua Hakim Negara Tan Sri Richard Malanjum bersara. Secara rasminya, Tengku Maimun dah mengangkat sumpah sebagai Ketua Hakim Negara di hadapan YDP Agong pada 6 Mei lalu. Tapi sebelum kitorang bercerita lebih terperinci lagi pasal Ketua Hakim baru kita ni, jom kita fahamkan dulu apa yang Ketua Hakim buat dan kenapa jawatan ni penting untuk negara. Siapa itu Ketua Hakim? Ketua Hakim Negara ni sebenarnya adalah ketua sistem badan kehakiman Malaysia dan ia dicalonkan oleh Perdana Menteri. Pelantikan tu pula kemudiannya akan disempurnakan oleh Yang Di-Pertuan Agong. Peranan Ketua Hakim ada ditakrifkan dalam Perlembagaan Persekutuan, di bawah Artikel 122(1): “Mahkamah Persekutuan hendaklah terdiri daripada seorang yang dipertua Mahkamah (yang digelar ""Ketua Hakim Negara Mahkamah Persekutuan""),” Seperti mana yang kitorang jelaskan pada awal tadi, Ketua Hakim adalah ketua badan Kehakiman. Tapi peranan dan fungsi Ketua Hakim lain daripada Peguam Negara (AG) sebab diorang bekerja di cabang kerajaan yang berbeza. Dengan kata lain, Ketua Hakim adalah ketua pada semua mahkamah dan ada “seniority” terhadap semua hakim. Ketua Hakim juga bertanggungjawab menghubungkan antara badan Kehakiman dan Kerajaan apabila ia melibatkan dasar dan amalan. [BACA LAGI: Malaysia has a new Chief Justice… But what does he do?] Jadinya, kita boleh kata yang Tengku Maimun ni hakim kepada seluruh hakim dekat Malaysia. Dengan itu, jom kita tengok lima fakta menarik tentang Tengku Maimun… 1. Beliau bermula sebagai pesuruhjaya kehakiman Tengku Maimun adalah lulusan dari Universiti Malaya (UM) pada tahun 1982 dan mula dilantik sebagai pesuruhjaya kehakiman pada 2007. Beliau kemudiannya dinaikkan pangkat sehingga menjadi salah seorang hakim Mahkamah Persekutuan pada November tahun lepas. Tapi, apa sebenarnya yang perlu dilakukannya untuk dilantik jadi Ketua Hakim? Sebenarnya, ada 3 syarat untuk dilantik sebagai Ketua Hakim Negara Malaysia: Pertamanya, korang mestilah warganegara Malaysia. Korang mesti jadi peguam yang pernah kendalikan kes di mahkamah-mahkamah tinggi ATAU menjadi ahli perkhidmatan kehakiman sekurang-kurangnya selama 10 tahun. Korang mesti dilantik oleh YDP Agong (atas nasihat Perdana Menteri, selepas berunding dengan Majlis Raja-Raja). Sejak Malaysia mendapat kemerdekaan pada tahun 1963, 15 hakim dah menjawat jawatan ini, dan kali ni buat kali pertamanya seorang wanita dilantik sebagai Ketua Hakim. Tapi sebenarnya, ada lebih lagi daripada sekadar syarat-syarat yang Tengku Maimun dah penuhi untuk dilantik sebagai Ketua Hakim. Sejak Januari 2013, Tengku Maimun dah jadi salah seorang hakim dalam pelbagai kes berprofil tinggi di Mahkamah Rayuan dan Mahkamah Persekutuan. Salah satu sebab kenapa beliau terkenal adalah kerana… 2. Beliau terkenal dengan keputusannya yang tegas dan kebebasannya dalam badan kehakiman Bekas Presiden Majlis Peguam Malaysia, George Varughese ada kata: “Yang arif dikenali dengan keputusannya yang tegas, cara kehakiman yang sempurna dan yang paling penting kebebasannya. Pelantikan Yang Arif sangat baik, terutamanya untuk reformasi badan kehakiman.” – This Week in Asia Jadi, disebalik memenuhi 3 syarat yang membuatkannya sebagai Ketua Hakim wanita pertama Malaysia, terdapat beberapa lagi penghakiman yang pernah dibuat oleh Tengku Maimun, sehingga ia menjadi keputusan penting dalam badan kehakiman Malaysia. Antaranya adalah… 3. Kes Akta Hasutan melibatkan mendiang Karpal Singh Karpal Singh atau dikenali sebagai Tiger of Jelutong, adalah seorang peguam jenayah terkenal di Malaysia, dan dia dah didakwa di bawah Akta Hasutan 1948 berhubung kenyataan akhbarnya dan baru je dibebaskan dari tuduhan tu pada Mac 2019. Ketua Hakim kita, Tengku Maimun adalah satu-satunya hakim yang bagi penghakiman berbeza (penghakiman berbeza dari hakim – hakim lain), di mana beliau mengekalkan dan mahu mengetepikan dakwaan terhadap Karpal Singh, dengan berkata: “Mahkamah Tinggi telah gagal melihat pembelaan diri perayu secara bebas” kenyaatan Tengku Maimun, dengan menambah bahawa kenyataan Karpal adalah semata-mata pandangannya tentang kepentingan awam. – The Star. Ini hanyalah salah satu daripada keputusan tegas dan pendirian bebas yang pernah dibuat oleh Tengku Maimun. Sebab, satu lagi kes penting yang pernah didengar oleh Tengku Maimun adalah … 4. Tentang penukaran agama kanak-kanak di Malaysia Ini adalah kes penukaran agama yang dirayu oleh seorang lelaki beragama Buddha, bila mana dua orang anaknya dah di-Islamkan oleh ibu mereka. Ibu anak-anak ini dah memeluk Islam terlebih dulu, dan kemudiannya mendapat hak jagaan anak-anak, dan dia seterusnya menukar agama anak-anaknya tu kepada Islam tanpa kebenaran bapa diorang. Jadi, bila si bapa buat rayuan di Mahkamah Rayuan, Tengku Maimun membenarkan si bapa membatalkan keputusan Mahkamah Tinggi, yang sebelum tu memberikan hak jagaan kepada bekas isteri. Mahkamah juga beri hak penjagaan penuh dua kanak-kanak tu kepada bapanya, dan mengisyitiharkan sijil perakuan agama Islam anak-anak diorang sebagai terbatal dan tak sah. Dari keputusan kes ini dan menjelaskan alasan kehakiman Tengku Maimun, maka sekarang ni dalam undang-undang Malaysia, ibu bapa kena bagi persetujuan diorang bila nak mengubah agama anak-anak diorang kepada Islam. Selain tu, penghakimannya lain yang paling menonjol juga adalah melibatkan kes berkaitan dengan undang-undang kanak-kanak/jagaan kanak-kanak. Pada tahun 2015… 5. Beliau putuskan anak tak sah taraf masih boleh bernasabkan nama bapa Tengku Maimun adalah salah seorang hakim yang telah buat keputusan penting untuk kes anak pasangan beragama Islam yang dilahirkan secara luar nikah supaya dibenarkan berbin/binti nama bapa mereka. Mahkamah dalam keputusan tu seterusnya menyatakan Jabatan Pendaftaran Negara (JPN) tak terikat dengan perintah fatwa atau agama yang dikeluarkan oleh Jawatankuasa Fatwa Kebangsaan yang membuat keputusan anak luar nikah tak boleh dinasabkan kepada lelaki yang menyebabkan kelahirannya atau kepada sesiapa yang mengaku menjadi bapa kepada anak tersebut. Ini kerana, kebajikan kanak-kanak menjadi pertimbangan utama dan mahkamah merasakan bahawa kanak-kanak itu tidak sepatutnya membawa stigma dengan dikenali sebagai anak tak sah taraf dalam masyarakat. Dari pegawai undang-undang ke Ketua Hakim Dengan itu, Tengku Maimun memang terkenal dengan keputusannya yang tetap dan tegas, terutama sekali dalam kes-kes yang melibatkan kanak-kanak. Beliau yang memulakan kerjaya sebagai pegawai undang-undang di Lembaga Pembangunan Kelantan Selatan (KESEDAR) pada 1982 dan setelah 37 tahun dalam kariernya, akhirnya sekarang beliau menjadi Ketua Hakim wanita pertama Malaysia. Malah, Tengku Maimun sejurus selepas mengangkat sumpah jawatan ada berkata - yang beliau kini berdepan dengan cabaran untuk mengekalkan keyakinan rakyat dan menguruskan persepsi negatif umum terhadap badan kehakiman. Jadi nampaknya, kita akan dengar banyak lagi tentang beliau dalam mengendalikan kes-kes berprofil tinggi setelah beliau diberikan kepercayaan sebagai Ketua Hakim ke-16 Malaysia."
"Najib's lawyers tried to stop the media from reporting his case. Here's why it failed There are three current issues that are constantly being shared/discussed on social media at the moment – first in rank being the Avengers Endgame (You can start posting spoilers now), Game of Thrones and...the Najib trial. So, to give you an update with regards to his case, we actually came across his latest case report. If you’re wondering what a case report is, it’s actually NOT the same as a news report – which is what we see on social media or news pages everyday. A case report is a document that explains a judgement in-depth or the specific arguments in a particular case. You can normally find case reports on a subscription engine called Lexis Nexis (but you’ll need to subscribe to it and it comes with a fee). Since some of you may not have access to the case report in relation to the Najib Razak trial, we’ll briefly explain it to you here in this article. The report was concerning a gag order that Najib applied for at the start of his hearings. Now, some of you might remember the news about Najib not wanting the media and the general public to discuss the merits of his case. But on a separate note, there was also news that Najib wanted a live telecast of his money laundering trial. But what exactly did he mean with both the statements? Najib wanted people to report on his trial...fairly Najib was basically against all forms of reporting that was not speculative and he wanted the trial to be fair. Criminal courts in Malaysia have the power to give out fines, jail sentences, whipping and various other orders. The power of the court comes from the Federal Constitution itself, specifically under Article 126, which allows the court to try someone for contempt. Here’s an example: The court will issue a gag order (it’s a legal order by a court or government, restricting information or comment from being made public or to a third party) If someone decides to talk about Najib’s case merits, they can be found liable for the crime of contempt (not following the court order). So, when Najib’s lawyers requested for the gag order, the court had to determine if they could do so in his case and prevent the media from reporting or discussing the ongoing case. You can see this in the application for the gag order itself that is stated as such: “any person who shall publish and/or cause to be published in the media, to wit any broadcast and/or other communication in whatever form which is addressed to the public at large or any section thereof, any words, comments, discussions and/or statements, which would suggest, conclude or infer that Dato’ Sri Mohd Najib bin Hj Abd Razak has undertaken any of the acts outlined in the four (4) charges in the Proceedings, as annexed in annexure A hereof and/or is guilty of the offences outlined therein, shall be liable to being punished for contempt of this Honourable Court.” - Dato Sri Najib v PP But take note that, Najib isn’t trying to stop all forms of news or media from reporting his case. In fact, his legal team told the court that they’re totally fine with an unbiased reporting of the case. In other words, they were okay with reports which did not speculate the outcome of the trial before he was proven to be innocent or guilty. The judge also stated this in the beginning of the case: “The accused said he was not against reports and articles which were fair, factually accurate, published contemporaneously and made in good faith” - Dato Sri Najib v PP So now that we’ve cleared what Najib wants and does not want, let’s establish something else. At the end of the day, the media and public can report whatever they want, but the court will be decide on the judgement based on the merits of the case. But there is a reason behind why might have wanted the gag order is mostly because... Jury and judges can be influenced by the media Consider this, it’s highly likely that an average Malaysian would follow up on the updates of Najib Razak’s case. But now, imagine if you were a witness in this high profiled case, and you come across news or speculations that may change your mind on the day of the case hearing. So, the lawyers in Najib’s case worried that the witnesses might read an opinion piece about the case and that opinion piece could become a speculation on whether he’s guilty or not - and this in turn could influence the witness and what he says in court later: “The accused contended, inter alia, that if there was unrestrained discussion in the media, including the social media, about the charges and the trial, there was a substantial risk that he would not have a fair trial as not only witnesses but the trial judge as well might be unconsciously affected by what they had seen, heard and read” – Dato Sri Najib v PP Based on the excerpt above, Najib wasn’t just worried about witnesses getting influenced by the media, he was also worried that the trial judge would be influenced by the suggested reports or news too. In the US, there have been cases being thrown out due to media influences in the jury. In Malaysia, there was a time when we had the jury system too – a prominent case here is the Mona Fandey trial. However, it became the last of it’s time as there was too much influence on the jury from the media. [READ HERE: Malaysian courts got rid of the jury system in 1995 because of a...bomoh??] Due to this, Najib’s lawyers were concerned that either the witnesses or the judges could be potentially influenced based on the speculations and news. However in the end, the courts decided not to give Najib Razak the gag order that he wanted, but they did leave us with something important… Najib’s case can now be used as reference for other cases seeking a gag order Despite Najib’s application for a gag order failing, his case can now be used as a reference for those who may need a gag order in the future. Basically the court stated that if such an application were to be successful, they have to show media reporting/discussions, that would result in a risk of having a fair trial and that there was no other option to remedy that, other than getting a gag order: “An applicant for such a gag order, however, had the burden of showing that the threat of a real and substantial risk of serious prejudice to the administration of justice was immediate, that no other alternative remedies were available to him and that the granting of a gag order was proportionate with reference to the competing interests of free speech and the risk of prejudice to a fair trial” - Dato Sri Najib v PP So, as much as it’s important for the press be able to freely report on court cases, we have to remember one thing here…everybody deserves a right to a fair trial and Najib is still innocent until proven guilty. Speculations and fake allegations have the potential to jeopardize the trial, and therefore, a gag order can be allowed in some circumstances, and vary from a case to case basis."
"5 things you need to know about Malaysia's first female Chief Justice For the first time in the history of Malaysia’s judiciary, a female Chief Justice was appointed – making her the top judge in the country. Datuk Tengku Maimun Tuan Mat is the 16th Chief Justice of Malaysia, after the retirement of our former Chief Justice, Tan Sri Richard Malanjum. Based on an official statement from the Prime Minister’s Office, the swearing in ceremony and handing over the letter of appointment before the Agong will be notified after receiving the Agong’s consent. But before we go into the details about our new CJ, let’s briefly understand what a Chief Justice does and why this role is important for the country. Who is a chief justice? So, a Chief Justice is the head of the Malaysian judiciary system and is nominated by the Prime Minister of the country. The appointment is then further instated by the Yang-Di Pertuan Agong (the King). The role of a Chief Justice (CJ) is defined by the Federal Constitution, under Article 122(1): “The Federal Court shall consist of a president of the Court (to be styled “the Chief Justice of the Federal Court”),” As we explained earlier, the Chief Justice (CJ for short) is the head of the Judiciary. The roles and functions of a CJ differ from an Attorney General (AG) mainly in that they work in different branches of the government. In other words, the Chief Justice is the head of all courts and has seniority over all the judges. The CJ is also in-charge of liaising between the Judiciary and the Government in matters involving policies and practices. [READ MORE: Malaysia has a new Chief Justice… But what does he do?] I guess you can say she’s basically the judge of all judges in Malaysia. With that, now let’s look at five interesting facts about Tengku Maimun… 1. She started off as a judicial commissioner Tengku Maimun graduated from the University of Malaya in 1982 and was first appointed as a judicial commissioner in 2007. She then rose up the ranks to become one of the justices in the Federal Court last November. So, what exactly did she have to go through in order to be appointed as a CJ? There are actually 3 requirements to become the Chief Justice in Malaysia: Firstly, you must be a Malaysian Citizen. You must have been a lawyer handling cases in higher courts OR become a member of the judicial service for at least 10 years. You must be appointed by the Agong (on advice of the Prime Minister, after consulting the Conference of Rulers) Since Malaysia got it’s independence in 1963, fifteen judges had held the top judicial post in Malaysia, and this is the first time in all these years where a woman has been appointed as a CJ. But there was more than just these requirements that she fulfilled to be appointed as the CJ. Since January 2013, Tengku Maimun has sat as one of the judges in multiple high-profile cases in the Court of Appeal and the Federal Court. One of the reasons why she’s prominent is because... 2. She’s well known for her sound decisions and independence in the judiciary The former Malaysian Bar president George Varughese stated: “Her Ladyship is known for her sound decisions, impeccable judicial temperament and most of all her independence. Her Ladyship’s appointment augurs well especially for the reform of the judiciary.” – This Week in Asia So, besides fulfilling the 3 requirements which made her the first female Chief Justice in Malaysia, there are several notable judgements made by Tengku Maimun which became landmark decisions in Malaysia’s judiciary. One of it is… 3. The Sedition Act case involving the late Karpal Singh Karpal Singh also known as the Tiger of Jelutong, was a renowned Criminal lawyer in Malaysia, who was charged under the Sedition Act 1948 over a press statement issue and was recently acquitted from the charges in March 2019. Our Chief Justice, Tengku Maimun was the only judge who gave a dissenting judgement (a differing judgement from the other judges) where she upheld and favoured to set aside Karpal Singh’s charges, and stated: ""The High Court has failed to look at the appellant's defence independently,"" Tengku Maimun stated, adding that Karpal's statements were merely his legal opinion of public interest. – The Star.com.my This is just one of the times our female CJ had stood firm on her decision and gave an independent stand. Another notable case heard by Tengku Maimun is... 4. On the unilateral conversion of children in Malaysia This is a case of a unilateral conversion which was appealed by a Buddhist man, whose two children were converted to Islam by their Muslim mother. The mother of the children converted herself to Islam first, and later obtained custody of the children where she subsequently converted them without the permission from their father. So when the father appealed to the Court of Appeal, CJ Tengku Maimun granted the father to reverse the High Court ruling, which had previously given custody to his ex-wife. The court had also given the father sole guardianship of his children and declared that the certificates of the conversions were null and void. Just to side track a little on this, and explain the legal reasoning behind Tengku Maimun’s judgement, it is now in the Malaysian law that both parents must give their consent when converting their children to Islam. For some reason, most of her prominent judgements involved cases related to child laws/child custody. In 2015... 5. She decided that illegitimate children can still carry their father’s name Here, Tengku Maimun was one of the judges who stood by the landmark decision for cases of Muslim children who are conceived out of wedlock and decided that they should be allowed to carry his/her father’s surname. The court in that decision further stated that the National Registration Department (NRD) is not bound by the fatwa or religious orders issued by the National Fatwa Committee when it comes to deciding on the surname of the child that is conceived out of wedlock. This is because the child’s welfare is the paramount consideration and the court felt that the child did not deserve to carry the stigma of being known as an illegitimate child in the community. From legal officer to Chief Justice With that, Tengku Maimun has indeed lived up to her sound and firm decisions, which is particularly seen in cases involving children. She started off as a legal officer in the Southern Kelantan Development Board (Kesedar) in 1982 and 37 years into her career, she is now the first female CJ of Malaysia. So, it looks like we will be hearing more from her in other high profile cases once she’s officially sworn in as the 16th Chief Justice, after receiving the royal assent from the King."
"Is it illegal to record the PDRM when they stop you at a roadblock? Most times, when we want to prove something or use something as evidence, the first thing we would do is to take out our phones and start recording or snapping pictures. Obviously, this would be the easiest way to obtain evidence to back up our claims. If you feel you might be in trouble or danger, you might also want to record the incident so you can make a report later. For quite some time, we have received questions asking if it’s illegal to record a policeman if he stops you at a highway or a roadblock. We’ve also been asked whether a PDRM officer is allowed to demand for you to stop recording them. But before we get to the crux of the issue, it might be useful for you to know that… There’s no law that prevents you from recording someone in public There are actually no laws in Malaysia that prevent anyone from taking pictures or video recordings of another person in public. Obviously, you cannot take pictures of people that are obscene or ones that may damage their reputation. But besides that, the law is silent as to whether one can record another in public. Since there is no prohibition, in other words, you can record someone as long as you are within your limits. Section 509 of the Penal Code states: Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes upon the privacy of such person, shall be punished with imprisonment for a term which may extend to five years, or with fine, or with both.” So if you take obscene pictures or videos of someone, it’s a very serious offence and you may end up in jail for 5 years or you might have to pay a fine… or BOTH. But what if someone verbally or physically abuses you or threatens to hurt you? You might want to record them to use it as evidence if you make a police report. Once again, the law is silent on this issue. So, there are no restrictions on you recording someone in this instance as well. The bottom line and key point is that you don’t intrude on someone’s privacy or make obscene recordings of them. It doesn’t just have to involve someone taking inappropriate photos/videos of another. Even if you stalk someone and follow them around taking pictures of them, that would amount to nuisance and is definitely a huge NOPE. [READ MORE: Can you legally stop someone from taking photos of you in Malaysia?] The police aren’t exempted from this While the police are seen as a higher authority, there is also no law that prevents you from recording them. So if you are stopped at a roadblock or anywhere else by them and you feel it’s not justifiable, you are allowed to record the whole exchange between you and the police officer. However, this is subject to three conditions: 1. The act of recording must not interfere with the police officer performing his duties If the police officer is conducting an investigation or is in the middle of something crucial, you should not record them if it can temper with the whole investigation. If your recording may distract or disrupt the officer from performing his duties, he has the right to ask you to stop recording. So for example, if you are stopped late at night by an officer and he wants to check your car, you cannot prevent him from doing so and the act of recording the officer shouldn’t get in the way of the inspection. If you do disrupt the police officer from discharging his duties, he has the right to stop you from recording. 2. You should inform the police officer that you wish to record him Instead of just taking out your phone and recording the police officer immediately, it’s best to let him know that you will be recording the conversation between him and you. This is more of something done out of courtesy. You don’t need to expressly get their permission, but it’s always best to be polite. 3. Don’t defame the police Most of these recordings of police officers do end up on social media and that’s how we come to know about them in the first place. You may want to share your recording on your social media accounts, too. But if you do decide to share it, it’s best to do so just as it is without any comments. Adding any other commentary and inferences might just land you in trouble and you may be said to have defamed the police. So if you share, make sure to share the facts of what happened only. So let’s say you did get pulled over and felt it was unwarranted, and so you recorded whole incident, you might now ask... Can the recording be used as evidence in court? Let’s say, in that scenario, the officer asked you to pay a bribe or wrongly accused you of something. In instances like this, you may want to report the matter to the higher authorities. Obviously, you will need some sort of evidence to have a strong case against the cop in question. So the question is, if you had recorded the police officer asking for a bribe, can this be used in court? To answer this question, we look at the Evidence Act 1950. Section 3 of the Act states that anything that is a “document” can be used as evidence in court. “evidence” includes— (a) all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry: such statements are called oral evidence; (b) all documents produced for the inspection of the court: such documents are called documentary evidence; But what exactly is a “document”? Section 3 also states: “document” means any matter expressed, described, or howsoever represented, upon any substance, material, thing or article, including any matter embodied in a disc, tape, film, sound-track or other device whatsoever, by means of— (b) any visual recording (whether of still or moving images); (c) any sound recording, or any electronic, magnetic, mechanical or other recording whatsoever and howsoever made, or any sounds, electronic impulses, or other data whatsoever; So basically, any recording, be it audio or visual, or even just still images are considered to be evidence that can be brought to court. Be kind to your abang (and kakak) polis So yes, the courts will accept the recording as evidence that can be used in court. However, remember that when you record your conversation with the police, it’ll be wise to remain polite and courteous, because if you’re harsh or violent with the police officer, that may amount to you posing a threat to the safety of the police officer. So remember, always be civil and cordial."
"Budak 6 tahun saman kerajaan Malaysia pada 2014. Ini apa yang terjadi... [Click here for the English version] (Kemaskini 27/09/2019: Selepas 11 tahun menanti, akhirnya Yu Sheng Meng berjaya menerima surat kelulusan kewarganegaraan daripada Kementerian Dalam Negeri. Yu diberikan kewarganegaraan di bawah Perkara 15A Perlembagaan Persekutuan yang memberikan kuasa khas kepada Kerajaan Persekutuan untuk mendaftarkan sesiapa di bawah umur 21 tahun sebagai warganegara. Ikuti perjalanan berliku Yu dalam artikel kami ini.) Masa kanak-kanak, banyak di antara kita yang tak sabar nak jadi dewasa, sebabnya kalau dah dewasa boleh buat apa je yang kita suka. Tapi bila terkenang masa jadi budak-budak dulu, kadang – kadang tu nak kembali pun ada. Masa tu hidup taklah susah sangat dan semua benda boleh menceriakan kita. Tak la macam sekarang, ada banyak tanggungjawab. Sebagai kanak-kanak, korang tak tahu pun macam mana undang-undang berjalan, semuanya macam biasa je. [BACA LAGI: Can a child sue or be sued?] Tapi hari ni, kitorang nak beritahu korang pasal budak 6 tahun yang sebenarnya dah saman orang. Orang tu pulak bukannya sembarangan, tapi Kerajaan Malaysia! Kes budak ni dikenali sebagai YSM v Ketua Pengarah Pentaftaran Negara dan ia sebenarnya kisah yang agak merumitkan. Tapi takpe, kitorang akan cuba sedaya upaya untuk kaitkan kisah ni dengan korang semua dengan cara yang terbaik. Dia dilahirkan di Malaysia, tapi dia bukan rakyat Malaysia Seperti yang diceritakan, kes ni dikenali sebagai YSM v Ketua Pengarah Pendaftaran Negara. YSM tu – budak lelaki yang dipersoalkan dan pihak yang satu lagi adalah Jabatan Pendaftaran Negara atau JPN. Jadinya, kes ni adalah antara seorang budak lelaki dan JPN. YSM adalah singkatan nama sebenar budak lelaki tu dan atas permintaan peguamnya, kitorang akan merujuk YSM sebagai Kevin dan bapa angkatnya sebagai Paul. Semuanya bermula bila Kevin dilahirkan di Pulau Pinang pada 2008 dari bapanya seorang rakyat Malaysia dan ibunya seorang rakyat Indonesia (kedua-duanya tak berkahwin), dan ini dinyatakan dalam sijil kelahiran Kevin. Tak lama lepas tu, tanpa alasan yang diketahui, ibu bapanya buat keputusan untuk berikan Kevin sebagai anak angkat. Jadinya, bila umur Kevin 4 bulan, seorang lelaki dikenali sebagai Paul dah ambil Kevin sebagai anak angkat dan sijil kelahiran baru pun diberikan kepadanya. Masalah mula timbul bila Paul perasan yang sijil kelahiran tu catatkan Kevin sebagai penduduk tetap dan bukannya warganegara. Disebabkan Kevin bukan warganegara, dia juga boleh dianggap sebagai kanak-kanak tak bernegara (stateless). Dalam kes macam ni, PR tak boleh jadi warganegara, yang bermaksud selain daripada dibenarkan menetap secara sah di sini, dia tidak akan diberikan apa-apa dokumen pengenalan yang sepatutnya. Contohnya, dengan takde IC dan passport – Kevin tak boleh miliki apa-apa dan tak boleh keluar dari negara ni. Dia juga tak boleh dapat pendidikan formal dekat mana-mana institusi yang diiktiraf. Tapi yang mungkin lebih menakutkan adalah dia tak jadi rakyat untuk mana-mana negara. Secara undang-undang, dia tak ada tempat yang diboleh panggil sebagai tempat asalnya. Untuk ramai orang, kewarganegaraan adalah sebahagian daripada identiti dan menjadi rakyat untuk sesuatu negara memberikan korang hak-hak dan keistimewaan tertentu. Kalau Kevin jadi orang tanpa negara untuk seumur hidupnya, satu cabaran sukar akan menantinya. Maka, Paul tahu yang dia tak boleh biarkan benda ni macam tu je. Nampaknya dia perlu buat sesuatu yang sepatutnya, dan dia dah ambil apa yang logik dibuat, iaitu… Paul saman JPN bagi pihak Kevin Tapi tunggu kejap… kalau kes ni antara Kevin dan JPN, kenapa pula Paul yang saman bagi pihak Kevin? Memanglah, sah-sah mustahil Kevin tu boleh datang sendiri ke mahkamah, sebab itulah Paul (orang dewasa) yang juga rupanya seorang peguam lakukan tindakan ni bagi pihak Kevin. Tapi dalam sepanjang kes tu, apa saja yang dikatakan oleh mahkamah diarahkan kepada Kevin sendiri dan bukannya kepada Paul. Jadi taklah clickbait sangat bila kitorang kata - budak 6 tahun saman kerajaan… Kes ni bermula di Mahkamah Tinggi pada 2014, yang masa tu Kevin berumur 6 tahun. Tapi harapan diorang nak dapat berita baik, berkecai sama sekali. Ingat lagi tak bila kitorang kata ibu bapa Kevin sebenarnya tak berkahwin? Inilah yang jadi punca masalah. Mahkamah Tinggi kata disebabkan Kevin dilahirkan dari ibu bapa yang tak berkahwin, dia dah jadi anak tak sah taraf. Seksyen 17, Jadual 2, Bahagian III Perlembagaan Persekutuan kata – kriteria untuk jadi warganegara Malaysia adalah seseorang tu mesti lahir dari pasangan yang berkahwin. Kalau dia anak tak sah taraf, kewarganegaraanya akan diambil berdasarkan warganegara si ibu yang melahirkan. ""Bagi maksud Bahagian III Perlembagaan ini rujukan kepada bapa seseorang atau kepada ibu bapanya, atau kepada salah seorang ibu bapa, adalah berkaitan dengan orang yang tidak sah dianggap sebagai rujukan kepada ibunya ..."" Ini tak terpakai dalam kes Kevin sebab ibu bapa kandungnya tak berkahwin dan juga ibunya tak diketahui. Tapi, kenapa pula status perkahwinan jadi masalah sekarang, sedangkan Kevin dah jadi anak angkat Paul secara sah? Mungkin kebanyakan daripada kita akan kata yang hujah ni baik dan Kevin sepatutnya dapat kewarganegaraan Malaysia sebab dah jadi anak angkat orang Malaysia. Sebenarnya, hujah inilah yang digunakan oleh peguam Kevin, tapi mahkamah kata – jadi anak angkat tak bagi apa-apa kesan pada kewarganegaraan Kevin. Dalam Perlembagaan Persekutuan, makna “ibu bapa” secara tegas merujuk kepada ibu-bapa kandung dan bukannya ibu-bapa angkat. Jadi, status perkahwinan Paul atau kedudukan diorang sebagai warganegara Malaysia tak bagi apa-apa kesan. Mahkamah kata lagi, tak ada apa yang boleh ubah fakta bahawa Kevin dilahirkan daripada ibu bapa yang tak berkahwin. Hakim Asmabi Mohamad kata: Akta Pengangkatan 1952 (Akta 257) berhubung dengan hak dan kawalan ibu bapa angkat yang mempunyai anak angkat. Bagaimanapun, perintah pengangkatan tidak sama sekali memberi status kewarganegaraan kepada plaintif. Ini disebabkan oleh fakta bahawa ada undang-undang tertentu, Perlembagaan Persekutuan, yang menangani isu mengenai kewarganegaraan supaya apa-apa perkara mengenai kewarganegaraan harus dibaca dan ditafsirkan dalam empat sudut Perlembagaan Persekutuan. Oleh itu, kuasa yang berkaitan dengan kewarganegaraan hendaklah diberikan kepada Kerajaan Persekutuan dan Menteri Dalam Negeri ... Jadinya, mahkamah buat keputusan dan kata pengangkatan tak bagi sebab untuk Kevin dapat kewarganegaraan. Tapi ada lagi drama pasal cerita ni: walaupun sebelum kes mahkamah bermula… Mahkamah kata diorang bukan orang terbaik untuk putuskan perkara ni Apa yang Kevin dan Paul lalui ni memang dah susah, tapi lepas bawa kes ni ke mahkamah, Mahkamah Tinggi pula kata yang kes ni bukan untuk diorang bagi keputusan. Malah, Paul diberitahu tindakannya membawa kes tu ke mahkamah pada masa itu adalah penyalahgunaan proses mahkamah. Tapi bukan mahkamah nak buat jahat atau tak nak dengar kes. Sebabnya, mahkamah tak ada kepakaran untuk dengar kes pasal kewarganegaraan. Mahkamah kata kerajaan lebih bersedia untuk memutuskannya. Ini kerana, kerajaanlah yang ada akses dengan maklumat dan rekod berkaitan dengan seseorang yang mana mahkamah tidak semestinya ada. Fikirlah macam ni: Kalau korang ada laptop Acer yang nak kena dibaiki, secara teknikalnya korang boleh je bawa laptop tu ke kedai baiki laptop Dell. Walaupun laptop dapat dibaiki, tapi korang dah pasti boleh dapat yang lebih baik kalau bawa laptop korang tu ke pusat pembaikan Acer. Sebabnya, Acer lebih tahu pasal masalahnya dan tahu cara nak baiki Acer berbanding Dell. Jadi, kalau kerajaan adalah pihak yang boleh buat keputusan kes Kevin, dan ia juga yang menafikan kewarganegaraan Kevin, maknanya kat sini Kevin tak ada jalan lain? Hakim kata, kalau kerajaan tolak permohonan warganegara, pihak tu boleh merayu keputusan ni kepada Menteri Dalam Negeri. Bagaimanapun, sekali menteri dah buat keputusan, keputusan tu adalah muktamad dan tak boleh lagi dirayu. Masa baca kes dan penghakiman Kevin, kitorang dapati tak ada rayuan yang dibuat kepada Menteri mengenai keputusan JPN. Sebaliknya, Paul dan Kevin langsung pergi ke mahkamah. Kalau diorang menang kes tu kat mahkamah, ia akan jadi berita baik untuk kes-kes lain macam yang Kevin lalui. Kalau undang-undang berubah kerana keputusan kes Kevin, itu akan jadi satu ukuran atau kriteria baru tentang macam mana kes-kes kanak-kanak tanpa kerakyatan akan diputuskan. Keadaan Kevin berubah ke? Kalau tak dapat kerakyatan tu dah cukup mengganggu, lepas permohonannya ditolak dua kali, Kevin juga terpaksa bayar ganti rugi kepada JPN: RM1,000 untuk kali pertama dan RM4,000 untuk kali kedua. Lebih malang, masa kes masih dalam pendengaran pada 2016, Paul meninggal dunia akibat leukemia. Tapi syukurlah, bila rakan kongsi firma undang-undang Paul, Encik Tan ambil Kevin sebagai anak angkat dan meneruskan perjuangan Paul. Sekarang ni, dah 3 tahun sejak keputusan Mahkamah Tinggi, tapi nampaknya perjuangan tu belum berakhir. Nak tahu sama ada Kevin masih ada peluang untuk perjuangkan kesnya, kitorang ada hubungi peguamnya untuk dapatkan perkembangan kes. Diorang beritahu kitorang yang Mahkamah Rayuan dah tetapkan pendengaran kes pada akhir April 2019. Berdasarkan keputusan Mahkamah Rayuan, keputusan akan dibuat sama ada kes tu perlu dibawa ke Mahkamah Persekutuan atau tak. KEMAS KINI: Jadi Mahkamah Rayuan sudahpun mendengar kes ini pada 25hb April 2019. Tapi selepas itu, Mahkamah itu bercadang untuk memberi Kevin dan peguamnya serta JPN dan peguam mereka sikit masa lagi. Ini supaya Kevin dan JPN boleh mencapai satu kesepakatan antara mereka mengenai isu ini. Kevin dan JPN perlu hadir ke Mahkamah Rayuan sekali lagi pada 20hb Jun 2019 dan pada kali ini, mereka harus memaklumkan status kesepakatan mereka kepada mahkamah. Banyak lagi kes macam Kevin di Malaysia Kes Kevin ni bukanlah baru dan banyak lagi kes yang agak serupa dan diberikan alasan yang sama bila dibawa ke mahkamah. Beberapa minggu lepas, satu kes ni dah dapat perhatian ramai. Rachel Sia, seorang remaja 19 tahun dari Sarawak juga seorang rakyat tanpa negara walaupun dia dilahirkan di Malaysia. Bezanya dengan kes Kevin adalah Rachel jadi anak angkat pasangan suami isteri, tapi Kevin jadi anak angkat seorang lelaki bujang. Sekali lagi, ini tak membantu Rachel sebab tak ada sorang pun yang dapat buktikan ibu bapa kandungnya berkahwin. Dan kerana itu, dia tetap anak tak sah taraf dan sampai sekarang tak ada IC, passport dan macam-macam lagi. Dia juga tak boleh keluar dari Sarawak. Contoh lain pula adalah kes MJA v AL. Kes ni juga agak serupa dengan Kevin, tapi bezanya – dia dibesarkan oleh ibu bapa kandung dan tak pernah jadi anak angkat. Pada mulanya, dia dianggap sebagai anak tak sah taraf sebab masa dia dilahirkan, ibu bapanya belum lagi berkahwin. Bagaimanapun, rayuannya untuk dapatkan status warganegara dah dibenarkan walaupun ibu bapanya belum berkahwin masa dia dilahirkan. Ibu bapanya kemudian berkahwin dan dia bukan anak tak sah taraf lagi."
"Can Malaysia create a law to make movie spoilers illegal? There are basically two things you can spoil for people right now. Number one, the final season of Game of Thrones was released yesterday and two, the Avengers: Endgame is screening in cinemas. If you’re one of those people who didn’t take a day off to watch the movie – you deserve to be employee of the year. But the worst part about being employee of the year is hearing or seeing spoilers of your favourite movie from other people who have already watched it. Despite all the effort you put in to avoid people and the spoilers...You overheard two people talking about how your favourite character dies in the movie (NO THIS IS NOT A SPOILER) and describe the scene in detail while you were taking a dump in the office toilet...Thor-ific! Right now, you’re probably both disappointed and angry. Anyone in your shoes would be. So you’re thinking now, after 10 years of waiting for the Endgame, only for it to be ended by two people who discussed the movie and spoiled it for you, is there a possibility to sue someone for saying/posting spoilers in Malaysia? But before that, let’s clarify something… There is a difference between spoilers and movies recorded in the cinema If you were to record a movie in the cinema and posted videos clips of the movie on your Instagram story or Facebook live, this is an offence and you can be charged for this. As for spoilers on the other hand, there aren’t any laws on whether someone can be sued for posting or revealing the plot of a movie in Malaysia. For the act of recording movies in the cinema, there is a provision under the Copyright Act 1987. Section 43(A) of the Act states: “Any person who operates an audiovisual recording device in a screening room to record any film in whole or in part shall be guilty of an offence and shall on conviction be liable to a fine of not less than ten thousand ringgit and not more than one hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.” Based on the Act, anyone who attempts to record a movie in the cinema will be liable for an offence, and the Act carries a sentence of one year imprisonment and/or a fine between RM5,000 up to RM50,000. And yes, this includes any kind of device which also applies to your phone as well. Also, in order to prevent people from committing this crime, cinemas may arrange their staff to monitor the audience. If someone is caught trying to record a movie, the cinema has the authority to kick them out. Recently, a group was caught for recording the Avengers: Endgame in the cinema. But the authorities just gave them a warning and instructed them to erase all the recordings in their phones first and were subsequently released. However, this doesn’t mean there have never been cases of people being sued for posting spoilers in other countries. For instance, a site called The Spoiling Dead faced a lawsuit against the producers of The Walking Dead for posting spoilers of the series and predicting scenes before it got released. Now that that has been established, how likely is it for Malaysians to sue those who post spoilers? What’s the stand for spoilers in Malaysia? Spoilers aren’t actually harmful and are far from crimes like a physical assault on someone or damaging another person’s reputation. We spoke to a lawyer, Mr Fahry Azzat who advised us on this matter as such: “I think any law that tries to restraint discussing a movie is likely to be a restriction on our freedom of expression. Furthermore, I don't think movies are going to impose a condition to say you cannot discuss it after the movie is over. In fact, that is precisely what they want us to do - so it creates social proof.” Freedom of expression is constituted under Article 10 of the Federal Constitution as follows: “(a) every citizen has the right to freedom of speech and expression;” So, those who do post spoilers can always depend on what has been stated under the Federal Constitution which means, there is pretty much very little that can be done to stop someone from posting or talking about movie spoilers. Also, the most that can happen to the person who hasn’t watched the movie is to feel disappointed or angry. And these emotions suffered do not constitute to a recognised psychiatric injury, which is an area to sue someone under the law of Tort. In other words, there are no laws protecting one’s desire to remain uninformed. Which now leaves you with only one choice… Go into hiding until you watch the movie Recently, there was news circulating on the internet about a boy who got beaten up for revealing the finale of the Endgame. As much as spoilers can be frustrating to hear or see, violence is definitely not the best way to prevent someone from keeping a secret. This will just get you to face a lawsuit yourself...which is pretty far fetched from just watching the movie and enjoying it. Perhaps the best solution for those who want to avoid movie spoilers is to just use the internet and social media lesser, which results to lesser disappointment. Also, to those who think it’s okay to post them (technically it is okay) but it’s best to follow the Bro Code here – which is to be a little more considerate for the others who have yet to watch the new movie. Or, you could do something like what this one Netizen did if you really need to discuss the movie with other fans:"
"5 things you must get, if your flight from KLIA is delayed If you don’t fly alot, an airport can be quite an exciting and interesting. But if let’s you fly a lot for work/business, an airport can be a really uncomfortable place to be in especially if your flight gets delayed. You paid a lot of money for a punctual service, anything less can feel extremely inconvenient. Well you don’t have to fret too much if you’re in that situation, because MAVCOM and the Aviation Consumer Protection Code of 2016 have come up with certain rights for such delays. Oh, and these rights would also be applicable to all flights to and from Malaysia (not just KLIA). So here are some of your rights and privileges if you ever have a delayed flight… 1. If your flight is delayed for 2 hours or more... A two hour flight can go really fast if there’s in-flight entertainment on board. But if there’s nothing to do other than looking out the window, and constantly making space to allow other people to go to the toilet, the two hour flight can feel like an eternity. Now imagine if you have to wait in the airport for two hours with nothing to do, it’s probably gonna be equally as frustrating. Nevertheless, if you have a flight from Malaysia that’s delayed for more than that time, you have a right to certain amenities. So if you have 2 hour or more delay you can expect: free food and drinks limited phone calls most importantly wifi access Thus with the free wifi you can probably entertain yourself by streaming a movie, without using up your own data. 2. If your flight is delayed for 5 hours or more... Here you can probably use the wifi to watch 2 movies instead As the delays get longer, you’re supposed to get compensated more. Given that a 5 hour delay would mean a very uncomfortable time sitting on airport chairs, here’s what you’re supposed to get: A free stay at a hotel A free ride to that hotel So yupp you don’t have to worry about back aches sitting in metal chairs, you’d get a comfy bed to rest in while you wait to get back on your flight. 3. If your flight is cancelled... This probably sounds like the worst case scenario. But a cancelled flight doesn’t mean that you won’t get to your destination unless you buy another ticket, or you won’t get refunded if you just head home. This is because: You can get your money refunded OR You can hop on their next flight at no additional cost Basically you’re not gonna have to worry about paying extra for a new ticket or not reaching your destination, it only means that you’ll be reaching slightly later. Which in itself comes with a set of problems, like… 4. If the delay caused you to miss a connecting flight... This would be a situation where let’s say you’re travelling from KL to London via Singapore, but because of a delay in KL you’re gonna miss your connecting flight in Singapore. Well according to MAVCOM, you would have some rights depending on the scenario. Scenario 1 Scenario 2 You fly from KL to Singapore using ABC Airlines. And for your connecting flight from Singapore to London, you use another ABC Airlines flight too You fly from KL to Singapore using ABC Airlines. But for your connecting flight from Singapore to London, you use another airline called XYZ Airlines So in both scenarios your flight from KL to Singapore was delayed, and because of that you missed your connecting flight from Singapore to London. For scenario 1, ABC Airlines must give you another flight from Singapore to London with no added costs. But because in scenario 2 you used a different airline for the connecting flight, ABC Airlines wouldn’t have to do anything to get you to London – because you used a different airline. 5. You can get money if a EUROPEAN flight is delayed... Before we explain this point, there may be some extra compensation for certain international flights. But this would depend on where the flight is going to, where the flight is from, and the country in which the airline is based. So there’s probably different compensations you can get, depending on the country’s compensation policies. We obviously can’t go every country’s policies, so our focus for today is going to be...Europe. Now we’re gonna exit the ambit of Malaysian laws a little bit, and dip our toes into the realm of European law. This is because in Europe, if a flight is delayed they wouldn’t just get food and other physical necessities, they’d actually get money. And if you’re asking why are we discussing this if you’re probably not European, it’s because Malaysians still can get this compensation for delays if: You fly with a European airline from Malaysia to a European country Your flight is from a European country to Malaysia, and it could be from a European or non-European airline So if you’re ever in one of those situations, and you’re wondering how much money you’d get for the delay: There are circumstances where airlines wouldn’t need to compensate for delays It’s all right and good when the airlines have to give us internet, calls, food, and a bed when a flight has been delayed. But sometimes, a delay can be more than just an annoying inconvenience. Imagine if you’ve booked a flight to go for an overseas business meeting to secure an RM1 million deal, and because of the delay you didn’t get the deal. Shouldn’t they compensate you for such a missed opportunity? Well the short is answer is NO, but there are some legal reasons behind it. First you’d have to understand that when a flight is delayed, it’s reasonable to expect that a passenger would need things like food and bed. However under contract law, someone who breaches a contract (like not providing a timely flight) must compensate a passenger who suffer losses. BUT, they only need to compensate for losses that can be expected. If we were to refer back to the RM1 million deal example, the airlines couldn’t reasonably expect you to suffer such losses. In addition to that, everything that we mentioned here, about the rights to meals and all, it would only be applicable if the delay was caused by the fault of the airline itself. According to MAVCOM, the airlines wouldn’t need to compensate passengers for delays caused by “extraordinary circumstances” like very bad weather."
"Here's why China won't allow Malaysia to back out from the ECRL agreement There are quite a number of hot topics being talked about in Malaysia at the moment. Some of you might be hyped about the release of Avengers: Endgame *no spoilers please* while the others might be following up with the latest updates of the ECRL project, which doesn’t seem to have an...endgame. This is because the debate on whether or not it will go on seems like it’s...Endless. In this article, we’ll be looking into the reason behind why there is no end to the negotiations being made with China, and whether Malaysia can legally come out of this billion dollar contract. Perhaps, the ECRL agreement is best understood by laying out a chain of events on what has been happening so far... The timeline of the ECRL agreement So for a brief intro on what this is all about, let’s start with what exactly is the ECRL project in the first place. ECRL is short for East Coast Rail Link and is a double track railway link connecting Port Klang to Kota Bahru. The project is being segmented into three phases and the first two have already been initiated. As much as the railway link can benefit a lot of people – mostly for those who live on the East Coast of Peninsular Malaysia, the project comes with a very (this is somewhat an understatement) expensive price. Here’s the timeline of how the project came about, in simplified terms: Nov 1 2016: Where a contract agreement was signed between the former Barisan Nasional government and China Communications Construction Company (CCCC) to build the 688KM track linking Port Klang to Pengkalan Kubor in Kelantan. May 3 2017: The former government then topped up an additional RM1.28 Billion to extend the tracks from Wakaf Bharu to Pengkalan Kubor. May 13 2017: Malaysia then signed a supplementary agreement with CCCC for a second phase of the project for RM9 Billion. August 23 2017: The government later approved on the upgrading of the ECRL for a double tracking project with costs an additional RM10.5 Billion. March 20 2019: After the general elections and the new government was formed, Prime Minister Tun Mahathir suspended the construction work and later stated that the the project will continue after the project negotiation on the price was finalized with China. March 22 2019: Tun Daim, the chairman of the Government Advisory Council said that Malaysia was expected to finalize the ECRL agreement with cost savings more than RM10 Billion. April 12 2019: The government announced the ECRL project would resume with a new alignment of tracks from Kota Bahru to Port Klang. Based on the timeline above, the ECRL project has been an on and off thing (like a toxic relationship) for almost three years now. So this was finally negotiated a few weeks ago by both, Malaysian and the Chinese government and they agreed to reduce the initial estimated price of the project, RM65.5 Billion to RM44 Billion for the first two phases of the project. Despite the reduction, we still have a major problem as the price of construction for the project is still too expensive for the country to afford. So, some of you may now question, why didn’t the government just cancel the contract with China? Is it possible to cancel the ECRL contract? There is evidence released by the Wall Street Journal and the Sarawak Report, stating that the ECRL project is a coverup of the 1MDB funds that the former Prime Minister has been charged with. However, until a court case can be brought against Najib Razak on the matter, this is somewhat just a speculation. [READ MORE: Noh Omar said stealing isn't wrong until you're caught...here's why he may not be wrong] If an element of foulplay is proved, the current government can show that there is a mistake as to the subject matter of the contract itself. In this circumstance, if Malaysia wants to leave the ECRL project due to any miscalculations, then there is a possibility that there has been a mistake in the contract. For instance, if both parties make a mistake in the contract agreement, the contract can be said to be void (ineffective) and will not bind the parties. However, since there is lack of evidence at the moment to prove the foulplay, the case is different. Only one party wants to come out of the contract now or has made a mistake on the matter of facts. This is known as a unilateral mistake in the contract. Section 23 of the Contracts Act 1950 states as such: “A contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to a matter of fact.” In other words, the Act states that if the mistake is made by only one person, the contract will not be void. So, the government will still have to carry on with the contract and honour it. [READ MORE: In Malaysia you can get out of a contract if both sides made a mistake] If not for the allegations, would it still be possible for Malaysia to come out from the deal? Unfortunately, we’ve already stepped in too deep Basically, the chances of Malaysia stepping out of the deal is slim due to several reasons. Firstly, the former Prime Minister has paid somewhat like a downpayment to China for the project, which can be said to be an offer to contract with China. An estimated amount of RM20 billion has already been paid by Najib Razak and the former cabinet, which is almost 20% of the cost of phase one of the ECRL project. Further, if Malaysia still went on to cancel the contract, then the government will have to come up with at least RM20 billion as a payment of penalty. If you look at this in legal terms, cancelling a contract unilaterally will put the party who cancelled it in a position to rectify their mistake and pay compensation to the other party. Also, the penalty for scrapping the ECRL project is a huge amount, which leaves us with no other options, but to go ahead with the project. [READ MORE: If you sign a contract in China (or any country), can you still sue in Malaysia?] But the longer the delay, the more expensive it becomes The keyword here is interest. The longer the negotiation process takes, the more expensive the interest becomes. However, there have been negotiations lately between China and Malaysia to trade raw materials such as palm oil to reduce the cost of the ECRL project. With that, perhaps there isn’t much of an option to come out of the ECRL contract as it has been already complied with and, the termination of it will only lead to more debts for the country. As this matter is still a grey area on whether or not we can lower the cost of the ECRL, perhaps there might be a chance for further price negotiations or trade/investments when the Prime Minister visits China for the Belt-Road Initiative conference."
"Can guide dogs be taken out to public places (LRT, KTM, malls)? In 2014 a blind man named Stevens Chan made the local news because he brought in Malaysia’s first service dog from China called Lashawn . And just to explain, a service dog is one that’s trained to help disabled people out. So for example, Lashawn who’s a service dog for the blind (a.k.a guide dog) helps his owner Stevens to navigate crowds and cross the streets. But Stevens and Lashawn didn’t didn’t just make the news for being the first service dog in the country, they also tried a social experiment by going about in public to visit malls and use public transportation. Unfortunately, they weren’t successful with their experiment as they weren’t allowed in certain malls, buses and taxis. So what this social experiment actually showed is that there’s a lack in certain regulations for disabled people which would’ve made their lives a little bit easier. But as we mentioned, what happened to Stevens and Lashawn was in 2014. Five years have passed, and we have to ask….have things changed? Are service dogs allowed in malls and streets? Generally when it comes to bringing out a service dog on the streets, the same rules that applies to dogs in general would apply to service dogs. Thus, there’s not much difference walking a service dog on a street or your pet. So first, the rules that would apply for bringing a service dog out on the street would depend on your local council - basically your DBKL, MBPJ , etc. So if we were to take the streets of KL as an example, Section 8C of the Licensing of Dogs and Kennel Establishment (Federal Territory of Kuala Lumpur) By-laws 1991 would be the regulation to look at. And it simply says that a dog can be brought out in public as long as it’s leashed and muzzled, and you can’t let the dog pee and poop everywhere (and if it poops, you gotta clean it up). But for service dogs it’s not too much of a worry cause they poop according to command. So now that we’ve handled the matter on the streets, you’d have to know that things are a little bit different when it comes to shopping malls. We couldn’t find any specific laws and rules about bringing dogs into shopping malls, so we contacted the Malaysian Association of the Blind for some info: “Shopping malls are like private property, so they can regulate who enters the premises and how people enter the premises” - Malaysian Association of the Blind in a phone conversation with ASKLEGAL In essence, the reason why there aren’t rules regulating this matter is because although a mall is open to the public, it’s no different than a private house, because the owner of the premises can sorta decide who can enter and who can’t. Which is why it was technically legal for malls to deny entry for Stevens and Lashawn. But it’s not all sad, because this also means that there are malls who can decide to allow guide dogs and there are some in Malaysia like Jaya One (which is dog friendly in general) and Sunway Pyramid (which allows guide dogs). Are service dogs allowed on public transportation? It’s quite common in other countries to see pets on trains and buses, but the same can’t be said for Malaysia. There are a few reasons for this, it may be because some people are afraid of dogs, or it may be against people’s religious teachings, and the transportation operators could be worried of having to clean up after the dog. But of course as we mentioned earlier, it shouldn’t be a problem for service dogs as they’re trained to poop and pee on command. So whether or not a service dog can be allowed on public transportation is a difficult question to answer, especially because the matter is confusing. This is because SPAD’s (the guys that regulates public transportation) chairman said that there should be no reason to disallow guide dogs on public transportation. In fact KTM actually agreed and said that they’d follow any ruling SPAD makes on the matter. On the flip side, RapidKL didn’t seem too keen as their spokesperson told the news that they won’t be allowing guide dogs on their services: “It is unlikely we will revise the conditions, as they were based on our licence issued by the minister of transport in line with the Train Act 1991 and the Train Regulations (Passenger and Person’s Behaviours) Act 1996..We need to consider the potential reactions of 800,000 daily passengers.” – RapidKL Spokesperson as reported by The Malay Mail But now here’s the thing, SPAD was the guys who regulates public transportation and the operators would have to follow whatever they say. However they were disbanded, so basically their statement was as good as having no statement at all. A balance between public interest and the needs of the disabled In the end the answer to whether or not a service dog can be brought out in public is, it depends. If you were to bring it out on the streets, you’re gonna have to follow the rules provided for by your local council As for malls, it all depends on whether the owners are okay with it And for public transportation, it would depend on the particular operator Also although SPAD is gone, they’ve been replaced by APAD. And although they’ve not made a statement on the matter, perhaps when the issue comes to light again, they’d make a ruling that would strike a proper balance between the needs of the disabled and the general public."
"Can the Malaysian government take your property if you die without a will? Note: This article was originally written in April 2019. Will-writing has been around for the longest time and has been a practice in many cultures. However, many don’t like talking about wills and death because they feel it might bring bad luck. Many people also don’t write wills till they reach a much later stage in life because a common misconception is that, wills are written by people who are old and are on their deathbeds. But this is far from the truth. In fact, anyone who has property should write a will so that the property will pass on to the right people after the owner passes away. But there are many instances where a person passes away without writing a will because they die suddenly or because they didn’t know the importance of writing a will. Writing a will is important because a will describes and lists who gets to legally own the property of a deceased person. When a person dies without a will, it is usually very difficult to decide who gets the property. There are laws that govern property that have been left by someone without a will and these can be found in the Distribution Act 1958. It must be noted that this law only applies to non-Muslims in Peninsular Malaysia and Sarawak. So if you don’t come under this category, you will most likely have to follow the intestacy laws of Sabah or Sharia law. There’s actually a term for someone who dies without a will. He or she will be said to have died intestate. So, what happens to a person’s property in cases like this? Since there’s no list of who legally gets the property, a common question that is asked is… Can the government take the person’s property? One may assume that just because there’s no will and so no list of who legally can take the property, the property may go to the government. But the lack of a will doesn’t mean that the property will automatically go to the government. In most cases of a person dying intestate, the property of the deceased will pass on to the family. Obviously, it will start with the immediate family members: The order is: spouse children parents If the deceased doesn’t have a spouse, children and parents, then the property will pass on to his extended family. While siblings aren’t actually considered to be extended family, they come in fourth in terms of priority. After them, come extended family members such as: grandparents uncles and aunts granduncles and grandaunts ...and so on and so forth. But in cases where there really are no surviving family members, or no one comes forward to claim the property, the government has the power to legally take the property. Some time ago, an article was released on the statistics of unclaimed assets by families of those who have died intestate. At that point, it was a whopping RM 60 billion. The reason behind this would be extreme cases where the deceased has no family at all. Meaning, none of the above mentioned people are alive or they cannot be traced. So it is only in this instance where the government can take a deceased person’s property. But what if there are family members but no will? So the good news is, if the family members are around, then the government can’t get involved. The law has already decided on how the property will be distributed. A list of how much each family member gets can be found in the Distribution Act 1958. Here’s the list of shares that everyone will get: “Issue” in the table above refers to the child of the deceased or his or her grandchildren. In the glossary of the Distribution Act 1958, it says: “issue” includes children and the descendants of deceased children; But the child must be legitimate, or else he or she will not be able to get the property of the deceased. Section 3 of the Act says: In this Act, unless the context otherwise requires— “child” means a legitimate child and where the deceased is permitted by his personal law a plurality of wives includes a child by any of such wives, but does not include an adopted child other than a child adopted under the provisions of the Adoption Act 1952 [Act 257]; As mentioned earlier, only if the above people aren’t around, will the property be passed on to other members of the family. But wait! The property can’t be passed on just like this. Since the passing of property is a legal issue, there’s a procedure to be followed and this itself can take a good two to five years. So the first thing that will be done is... The courts will create a ‘will’ for the deceased So firstly, the family will have to get a lawyer to help them with this. The lawyer will then apply to the court for a document that allows someone to manage the property. Once the document is given, the people who are in charge of it will give the property to the family members. This is just in summary and the process is actually pretty length. You may wonder what the need is for this document... So there was no will at the time of the person’s death, but it is important for there to be some sort of documentation to facilitate the distribution of his or her property. The only people who are empowered to do this are the Malaysian courts. So, once a person’s death certificate is shown, the court will issue what is known as a letter of administration. Just like a will, this document will list all the assets and property of a person. Until this document is issued, the assets of the deceased will be frozen. Next, two executors will be appointed. Their job would be the “execute” the duties listed in the letter of administration. The main role of the executors is to handle the legal affairs of the deceased and one of it would be to manage their assets. In most cases, the executors are people known to the person but occasionally, the court may appoint people who are totally unrelated to the person. As mentioned above, who gets a share of the property and how much each person gets would already be ascertained. So now, the executors will have to make sure that each person successfully gets their share. But before that, the executors will have to check if the deceased had any debts. If there are, then they would have to pay it off first before giving any property to the family members. The executors have the right to do this because the property will first be transferred to the names of the executors by the courts first. And then from there, the executors will have to transfer the property to the respective family members. This doesn’t include your EPF and insurance policies Property can be divided into tangible and intangible property. Money falls under the second category. However, not all money can be listed as property in a will or letter of administration. Most of you readers would already be contributing to EPF and have insurance policies, in which case you would know how these things work. At the start, you would already have nominated some names of people who can receive the money from your EPF and insurance after you. Since there are already nominees to your EPF and insurance, there cannot be another list of names of people who can benefit from the same thing. So, a will or a letter of administration cannot list EPF or insurance as property nor can there be a list of people who will benefit from it. This part applies to both Muslims and non-Muslims alike. Once again, it’s important to note that other than for EPF and insurance, the rest of the laws discussed above only apply to non-Muslims in Peninsular Malaysia and Sarawak."
"Are VPNs illegal in Malaysia?  There are many reasons to get a VPN. You may have heard of companies using it for security reasons or individuals who decide to get one to protect their personal information and browse through the net safely. To give you a brief explanation on what it is, a VPN (Virtual Private Network) is basically a service that enables the user to access the internet safely and privately by routing the connection through a server and hides any actions made online. The purpose of it is to encrypt communications between two networks, thus making it a secure platform. So, if a VPN gives so much emphasis to security and data protection, there is a chance for it to be illegal due to the lack of government supervision. Now, this might raise a question in some on whether having a VPN is a crime...or not? Before we dwell further, let’s clarify something first… How does a VPN work? If you already know what a VPN is, you can skip the info below. Since we at Asklegal are only well versed in the area of law (and not IT), we’re going to try make this as simple/non geeky as possible to explain how a VPN works. In order to understand what a VPN is, it’s best to explain what a DNS is in the first place. A DNS (Domain Name System) is like the phonebook of the Internet. Perhaps this is best explained with an example. If you were browsing through Facebook on your laptop and you see this in your browser/search bar: https://www.facebook.com – that is known as the domain name of the site. The DNS basically translates the domain names into IP addresses on the browser to load your internet searches. So, just imagine the DNS as being a different route to get to a website. A VPN on the other hand is a safe and secure net service which redirects the IP address via an encrypted tunnel. The main difference between DNS and VPNs are, the DNS does not conceal your data and your searches on the Internet while the VPN does. Instead the DNS just changes your laptop/phone’s “route” which lets you access blocked content such as...for your happy private time *cough*. Disclaimer: Asklegal is not teaching you how to access illegal sites on your devices. So, if the VPN is so secure and private to the extent that the government cannot lurk into your personal information and work, is it actually legal in Malaysia? Yes, VPNs are legal in Malaysia Unlike China, VPNs are not banned in Malaysia. So, VPNs in itself are perfectly legal. The main purpose of a VPN is to provide security and privacy for data and information. Companies use it to to protect their trade information and the employees can connect to internal data centres to access the company’s network resources. However, what you do with a VPN is the main question here. For instance, if you used a VPN for illegal purposes, such as downloading child porn, that is highly prohibited and you will be committing an offence. Section 233(2) of the Multimedia and Communications Act 1998 states: A person who knowingly – (a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or (b) permits a network service or applications service under the person’s control to be used for an activity described in paragraph (a), commits an offence The Act basically states that anyone who uses a network service or facility for improper purposes will be committing an offence and shall be liable to a fine not more than fifty thousand ringgit or a jail term not exceeding one year or both. But there are no consequences of using a VPN in Malaysia as it is not illegal by itself. So how can you use your VPN safely and not break the law in Malaysia? Do your research before your pick a VPN The Malaysian Communications and Multimedia Commission (MCMC) has blocked up to 1174 illegal sites in Malaysia by blocking the website’s DNS to curb illicit activities such as child porn. Internet service providers that are recognised in Malaysia such as TM, Maxis and Digi support the use of VPN’s in the country so long as it is being used with accordance to the law. So, as long as you use your VPN responsibly, it is not illegal. However, take note that there are VPNs out there that violate their services by selling user data to authorities without your permission. These are normally the free VPNs that are readily available but the downside is, they come with an expensive risk. Perhaps, it’s best to do your own research when you decide to get a VPN that suits your needs and complies with the regulations."
"What can you do if your landlord doesn't pay maintenance fees in Malaysia? [Klik sini untuk versi BM] We’re sure you may have come across tenancy articles on Asklegal or other sites. Usually articles on tenancy are written from the POV of the landlord or for their own benefit; very rarely articles are written for the benefit of a tenant. Well, recently one of our readers actually sent in a message highlighting an issue she has with her landlord. She basically told us that her landlord isn’t paying the management fees... As you can see from her story, she’s a tenant who’s almost always payed her rent on time, but given that the landlord isn’t paying the mentioned fees, she’s at risk of getting her access card blocked. So usually when tenants don’t pay rent or behave in an unwanted way, you find a legal way to evict them or pressure them to pay. But now, what happens if the landlord isn’t performing their duties? Before we answer that, it’s important to note… It’s all about the tenancy agreement If you wanna know if your landlord is legally required to pay the maintenance fees, one way you can find out is by looking back at the tenancy agreement. Usually when discussing rights and obligations related to land you’d look at land law. However when it comes to tenancies, things are a little different because tenancies start and end according to tenancy agreements, they derive their legalities from contract law not land law. So if a tenant wants to know what rights they have, they have to look at the tenancy agreement (a.k.a contract). So if a tenant would like to know if a landlord is wrong when he doesn’t pay maintenance fees, all the tenant has to do is look back at the agreement. If the tenancy agreement says that the landlord must pay maintenance fees, they voila you may have an enforceable right against the landlord – meaning you can legally take action against the landlord to pay up. Which is why, it’s very important to look at your contract/agreement before getting into the tenancy. It’s advisable to make sure all the important terms exist in the agreement and most importantly they’re clearly worded too. Thus, it's probably best not to try and DIY a tenancy agreement. [READ MORE: Is it safe to write your own contract in Malaysia? (Or sign one)] However because a contract can’t encompass every single circumstance, sometimes a contract can be silent on the matter. Actually there are even tenancies with no written terms – in other words it’s an informal unwritten tenancy agreement. In such cases, there’s no way to say who has the contractual right to pay maintenance fees. But still fret not because… The law says landlords must pay maintenance fees As some of us already know, all high-rise houses would have a management body to maintain the premises. And they have the money to do so because of the existence of maintenance fees and sinking funds. These fees are almost always charged to the house owner (landlord) not the tenant. Thus if a tenancy agreement is silent on the matter, the law dictates that landlords pay the maintenance fee. If the landlord doesn’t do so, the management would have rights to take legal action against the landlord. Following Section 25 (1) of the Strata Management Act 2013: “Each purchaser shall pay the Charges, and contribution to the sinking fund, in respect of his parcel to the joint management body for the maintenance and management of the buildings or lands intended for subdivisions into parcels and the common property in a development area” So if you’re a tenant who has a landlord not paying maintenance fees, what you can do is inform the management about your situation. Tell them you’re a tenant and your landlord is the one not paying maintenance fees. What could happen next is, the management will take legal action against the landlord. And hopefully if they’re nice enough, they won’t punish you by blocking the access card. Or alternatively, if you have the time, patience and money… You can sue the landlord for breach of contract We know for may people, suing is not really convenient and it’s almost always a matter of last resort. One thing you can consider before suing your landlord for not paying the maintenance fees, is to actually stop paying rent until your landlord pays the fees. However, this method is also extreme and it could just sour the already sour relationship a tenant has with the landlord. So now back to the other extreme option of suing, because there’s a possibility that a landlord may be breaching the tenancy agreement by not paying maintenance fees, he would be breaching a contract giving the tenant a right to sue. So if a tenant sues, he may be able to get one of two things – money, or option to cancel the contract and get money. The court will first have to decide whether the payment of maintenance fees by the landlord is an important term or less important term of the agreement. If the court decides that it’s not so important, the court can only give you money based on losses you’ve suffered. If the court decides the term is important, the tenant would have the option of cancelling the agreement, move out, and claim damages if he suffered losses."
"Here's JPN's guidelines to prevent people from giving weird names for their children Note: This article was originally published in 2020. [Klik sini untuk versi BM] Can you imagine being called Durian or Rambutan as your official name?? A sibling duo from Kedah were named after two local fruits – the durian and rambutan. Although their names are spelled differently – Durian was spelled as Dhury Yan and Rambutan as Rambutt'an, it resembled so much to the name of the fruits that made netizens relate to the fruits more as it sounded alike. More recently, a Twitter user went viral after uploading a picture of his Mykad. In the picture, you could see that his name was a mix of a Malay and Japanese name. Legally speaking, it is not an offence to name someone after a fruit or with a Japanese name, but the National Registration Department (NRD), better known as Jabatan Pendaftaran Negara (JPN) in Malay has set out an extensive guideline/rules to restrict naming people with offensive or unappealing names. Section 16 of the Births and Deaths Registration Act 1957 states: Where it appears to the Registrar that the name of a child sought to be entered in a register of births is objectionable or undesirable he shall refer the matter to the Registrar-General and the Registrar-General may cause such name to be registered or not to be registered as he shall deem fit. Basically, the Registrar has the authority and power to object a name that is undesirable and the name will not be accepted for registration as per the Act. So, we decided to find out what are the types of names that JPN does not accept and here is a list with no particular order on the criterias listed for names that aren’t allowed in Malaysia. 1. Names that are absolutely prohibited How bad can a name be that it had to be absolutely, unconditionally forbidden from being used in Malaysia? Here’s a list of some reasons behind it: Names that carry an offensive meaning – For example, the name Woti which means sexual intercourse is forbidden from being used. Names that are an abbreviation of a word – So if you plan to give your child a name from a combination of other names, and then realised it’s too long for the IC and decide to “shorten” it with alphabets such as ABCD, the National Registration Department may not accept this. Names that refer to a particular profession – As much as Asian parents want to their children to become Doctors or Engineers someday, giving your child the title DR in his/her registered name is forbidden. Titles bestowed by the Malaysian government – Giving your child the Dato Sri, Datin or Tan Sri title that can only be granted by the government is also not allowed. So, if you ever come across someone by the name of Sial or Bola Besar...they really must be having it hard, especially if it’s a guy. Names that carry offensive meanings are derogatory to the person who is being called by the name, while names with titles in front or refers to a particular profession can be misleading as well as it goes against the law. 2. Names that are unsuitable for a person What are the odds of meeting someone with the name Hitler in your workplace or a party? Almost none. Perhaps this has something to do with the “unsuitability” of the name being given to someone in Malaysia. There are also other names that have been classified as unsuitable in Malaysia such as... Animal names – Monyet, Lipan, Babi and Ular. Natural occurrance – Hujan, Batu, Angkasa and Panas. Names after numbers – 007 or zerozeroseven, K9 There has been an increase in the number of people wanting to change their birth names in Malaysia due to the fact that it may be unsuitable for them. Unsuitable names refer to names that may not suit a particular gender, or can even refer to an animal, the weather or naming someone after numbers/digits. 3. Names of those from special lineage You may have heard of names of people that start with Syed, Syarifah, Wan or Nik in Malaysia. So in order to incorporate these titles in their name, one has to get permission from the authorities and will have to prove their lineage to the descendants who carry the title in their names in order to be able to use it. Here’s a little backstory on some of the names, such as Syed/Syarifah. It is said to be from the descendants of the Prophet Muhammad and the name Megat comes from the descendants of Megat Terawis, the first Bendahara of Perak. As for Wan, it is actually the short of ‘Pahlawan’ and started from a Perak noble. So if one does not have a connection with another ‘Wan’, it is less likely that the person can use the ancestry name of those from the descent. Also, if a woman carries the title in her name, the child cannot inherit the name despite being part of the lineage. 4. Names that are unsuitable in a different language Since most Malaysians are either bilingual or multi-lingual, we may understand certain words that carry an offensive meaning in a particular language. For instance, this may happen if it is the name of another person who may not know the context of the meaning of his/her name in your mother tongue. So let’s break it down to the three categories of languages most prominent in Malaysia to classify some of these unsuitable names: Malay Language – Zaniah (Prostitute), Khinzhir (pig), Ketiak (armpit) and Kemek (squashed). Mandarin/Hokkien Language – Ah Chaw (snake), Khiow Choo (hunchback) and Chow Tow (smelly head) Tamil Language – Kalavani (Thief), Karrupusamy (black god), Sigappi (fair woman) and Motayyan (bald man) So perhaps it’s best to find out what the meaning the name you like carries before making a decision, as it may sound offensive in a different language. 5. Names cannot be more than 80 characters JPN also announced last year, that there will be a character limit to names as you cannot fit more than 80 characters in the Malaysian Identification Card (IC). If you were wondering, the record holder for the longest name in Malaysia is a girl named Princess Aura Nurr Emily Amara Auliya Bidadari Nawal El Zendra Mohd Sufian. That’s basically 63 characters and 12 words altogether! So in the new regulation, the character limit also includes the father’s name and the “Bin/Binti” that is registered in the IC. Take note that even the spaces in between the names are also counted as characters. The reason behind this regulation is to reduce the negative impact on a child, when he/she has to fill up forms or even examination sheets in schools. But the regulations are not meant to penalize someone because of their given name. Those with names exceeding 80 characters would be given a verification card confirming that his/her name does not fit the MyKad. But don’t worry, your name won’t get you sued So, having a long name or something that carries a funny meaning does not make a person liable for an offence in Malaysia. In fact, JPN gives parents the full liberty to name their children as per their wishes but the regulations stated must be complied with. If both parents agree to name their child with a particular name, there is no hard and fast rule stating that they can’t. It is also at the discretion of the registrar on whether or not the name is acceptable to be used. “The decision to name a child lies fully on the parents or the birth informer. The name given by the parents is subjective and depends on the individual. Parents who want to name their child with undesirable or objectionable names will be advised by the NRD on its unsuitability before registration,” – NRD statement – from ProjekMM via Cilisos. However, if you’re not happy with your name or you want to change it, there are procedures and steps you can take to re-register your name with the JPN and take an oath to confirm that the changes you want to make is done at your own will. If that’s the case, it’s best to get in touch with JPN or browse through their site on the procedures to change names in Malaysia, where several categories are listed down according to the age of a person."
"Did you know the PDRM can't arrest you if you enter an embassy?	 The founder of Wikileaks, Julian Assange was finally arrested last week by the British police. He has been wanted by enforcement authorities throughout the world for 7 years until his arrest, but the weird thing is the police and the whole world knew exactly where Julian Assange was – the Ecuadorian Embassy in London. But despite that, they didn’t arrest him until last week. The British police didn’t wait 7 years to get Assange because they were incompetent or lazy, it was because of various legal reasons which apply throughout the world. In fact, Malaysia had a similar situation when... North Korean officials hid in the North Korean Embassy 2 years ago, Kim Jong Nam (the brother of North Korean leader Kim Jong Un) was assassinated in KLIA 2. During the investigations for the assassination, PDRM wanted to question two North Korean officials named Hyon Kwan Song and Kim Uk Il. The PDRM knew that they were in the North Korean Embassy, but they couldn’t do anything to arrest them just like how the British police couldn’t do anything to arrest Julian Assange. Actually in the end, the North Korean duo ended up fleeing back to North Korea without the knowledge of the PDRM. In fact, on what may be a slightly unrelated note, there was a similar incident involving Anwar Ibrahim in 2008. He wasn’t avoiding the PDRM, but he sought refuge from the Turkish Embassy when he received death threats. He only came out after being satisfied that his safety would be assured. Now given that Anwar felt safe in the Turkish Embassy from attackers and the North Korean duo felt safe from the PDRM itself, what’s so special about these embassies anyways? Why can’t the PDRM just go in and do their job??? Embassies enjoy immunity from the law You may have seen it on TV, where embassies are referred to as foreign soil. While that may be the easiest way to explain why police can’t enter embassies, it’s not technically correct. The truth is an embassy is under the jurisdiction of the country that they’re in, it’s just that the laws of that country won’t apply to the premises of an embassy. According to the Vienna Convention on Diplomatic Relations, the law says: Article 29: ”The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity” Article 22: “1.The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. 2.The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. 3.The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.” This convention explains the mechanisms of this immunity thing better, because in addition to saying that embassies are immune from the law, the diplomatic staff also enjoy the same immunity. In fact the convention is so strict, it says that the host country cannot enter an embassy for any reason at all. So if we were to use an example, the North Korean embassy in KL is technically on Malaysian soil, but Malaysian laws just don’t apply to it and Malaysians can’t simply enter the premises. Thus, PDRM can’t go in an embassy to arrest or conduct searches and even our Bomba can’t enter the premises to put out a dangerous fire – unless they were given permission to do so. And we get it, this whole idea of diplomats having immunity may sound weird, because they can technically commit crimes and escape, but… Embassies and diplomats need the immunity to do their job Diplomats and embassies act as a representative of their respective countries to the host country. So the North Korean Embassy KL is basically representing the North Korean government in Malaysia. To do their job properly as representatives, the host government cannot interfere with these representatives; hence the immunity. This legal immunity doesn’t just extend to entry and arrest, but to the documents and belongings of the diplomats. Which is why, even if the police were invited to enter the embassy, they can’t confiscate the stuff in there. In fact, they cannot even intercept items en route to the embassy, which is why embassies use “diplomatic bags” to avoid the inspection of customs and police. And yes, while these immunities are needed for diplomats to work, people have abused it before. The diplomatic bags that we mentioned before, have been used before to transport illicit items like drugs. In fact, things have gotten even more sticky when diplomats are directly involved with crimes itself. On May 2014, a Malaysian diplomatic staff was alleged to have sexually assaulted a woman in her home and he couldn’t be arrested. Fortunately, the Malaysian government sent him back to New Zealand with his immunity revoked. Thus, this whole immunity thing isn’t a perfect system since it’s open to abuse. But because diplomats need to do their job, the immunity must be there. However fret not about the potential of abuse because a diplomat’s government can revoke his immunity, allowing the host state to arrest him."
"How is a normal Malaysian court different from a tribunal court? Disagreements happen all the time. It can be over something as trivial as who does laundry for the week, or things can turn ugly real quick where sometimes, a minor disagreement can lead to violence or even...murder! It’s a pretty obvious fact that murdering someone or inflicting violence is a criminal offence and you will be charged for in the court for it, where criminal proceedings will then commence upon you. [READ MORE: Why does Malaysia have different courts and what do they do?] Besides criminal cases, other cases are sometimes heard out of court due to a variety of reasons. This could be because court proceedings can take a very long time, are quite expensive and cases are generally not private as anyone can watch a proceeding. This does not apply to divorce proceedings and hearings involving children. But in situations where two companies want to settle a dispute while taking care of their good name, they would resort to settling the dispute outside of court instead. But take note that this does not just apply to companies alone. Even YOU can bring someone else or your company to – what is known as a tribunal, if you feel your rights have been infringed in any way. For cases involving dismissal or small claims are urged to be referred to in Industrial courts first instead of Civil courts to prevent a backlog of cases in the court of law. Now, imagine this scenario. You decide to sue your company for unfairly dismissing you (firing you) without giving you any notice on the termination of your employment or compensate you for it in any way. You don’t have enough money to hire a lawyer, and now you are wondering if there are any other options left for you to sue the company (and your boss) for all the bad luck that has landed upon you. Perhaps this can be best explained by introducing what a tribunal is in the first place... Is a tribunal a type of court? A tribunal is basically a body established to settle certain types of dispute. Tribunals may resemble courts as they are administrative and have someone who takes up the role of a judge to hear the case, but it is not recognised as a court that will have to follow the standard judicial system. Tribunals are not heard by judges to begin with, and you can be represented by anyone who has the capacity to do so...including yourself. In other words, there are no rigid rules or procedures in a tribunal, as compared to what a court of law has. Cases are dealt with in a somewhat flexible and informal manner, and most of the time, the remedies awarded come at a faster rate to the parties seeking for it. You can settle this in what is known as an arbitration proceeding, conciliation, or mediation. Normally, these disagreements are settled in Industrial courts or a Labour Court which isn’t an actual court as mentioned earlier, but the cases are heard by a Director or Chairperson as stated in the Industrial Relations Act 1967 and the Employment Act 1955, accordingly. Among the types of cases heard are unfair dismissals of employees, trade disputes and minimum wage complaints made by employees. You may now ask, if you don’t need a lawyer to represent you in tribunals to settle out of court matters relating to industrial disputes for example, who speaks on your behalf? The party who represents the aggrieved person may either be: An officer or an employee of the trade union One of the workers in the company or; A lawyer can represent the aggrieved person with the permission of the Chairperson hearing the case For most cases involving unfair dismissal, the case is heard by the Chairperson who sits in the tribunal alone. However, in trade disputes, the case can be heard as a panel comprising of the Chairperson, the employer’s representative and the employee’s representative. Once the case has been heard, the Chairperson/panel will be required to give an “award” to the aggrieved party which is basically the remedy for the dispute brought to the court. How does an award work? No, you do not get an actual award for bringing up a case in the Industrial/Labour court. An award in this sense refers to the decision made by the tribunal in the dispute settlement proceedings. The Industrial Court of Malaysia’s website even displays the full awards that have been awarded to the parties who have had their dispute resolved by the body. So, a tribunal award is actually similar to a judgement in a court of law, and if the losing party fails to comply with the award, serious action can be taken on the party that fails to pay. Section 56(3) of the Industrial Relations Act 1967 states: Any person who fails to comply with an order of the Court under subsection (2) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding one year or to both and a further fine of five hundred ringgit for every day during which such offence continues. So, if your employer fails to compensate you or does not comply with the award, he/she will be liable to a fine not more than RM2,000.00 or a jail sentence not more than one year or both. The tribunal court will enforce the penalties after making an order to the party to comply to the Act or rectify any terms in the award if it seems unjust. However, not everyone complies with awards given by the tribunal courts on time or may even try to avoid paying the compensation that is supposed to be paid to the aggrieved party. In circumstances as such is when the court of law a.k.a civil courts will come and join in the fun. Enforce the award in the high court if they fail to pay you An award of a tribunal court is actually deemed to be final and conclusive. But if either party has a problem with it or has discovered an error of law in the award, it can be challenged at the High Court to either set it aside or enforce it. But this can only be done once it has gone through the Tribunal court for non-compliance or any errors, and is done within two years with the discretion of the Minister. Although this process may sometimes force the aggrieved party to fork out some extra cash to proceed with a hearing in the High Court, it must be noted that all cases that require an alternate remedy needs to be heard by judges in the High Court to enforce an award or set it aside if necessary. If the High Court summons the losing party to pay you the compensation owed, the losing party must comply or will be sentenced in the court of law. So, if the High Court seems to have more power on enforcement, why do you bring the case to the Industrial courts in the first place? So which court gives better remedies? For starters, Industrial courts do not require any costs to be paid upfront to start a procedure. As we mentioned above, you can even represent yourself in an Industrial court or get a representative from the trade union. However, this is rather subjective as every case is unique in its own way and should be dealt with on a case to case basis. And take note, if you intend to sue someone for other legal matters such as defamation or negligence, perhaps a better remedy will be granted to you if you bring the dispute to the High Court as these are not matters inclusive in the Employment Act or the Industrial Relations Act. The Industrial court deals more on matters of reinstating an employee back in his former position in a company or compensating the employee if the former is not practical. Only if the losing party does not comply with the award given by the Industrial court and you now wish to initiate the enforcement of the award in the High court, then the civil courts might be able to help. But if you’re still unsure on whether or not your problem will be heard in an Industrial Court or you need to take it to a civil court, perhaps it’s best to get in touch with a lawyer who would be able to advice you based on your circumstances."
"The Malaysian government was sued by a 6 year old in 2014. Here's what happened (Update on 27/09/2019: After an 11 year wait, Yu Sheng Meng finally received a letter approving his citizenship from the Home Ministry. Yu was granted his citizenship under Article 15A which provides special powers for the federal government to register anyone below 21 years old as a citizen. Follow the twists and turns of Yu’s journey in this article.) As kids, a lot of us couldn’t wait to grow up and be adults mainly cuz of the million things we get to freely do. But remember when you were a child and everything was just perfect in its own way? Life was so carefree and fun, and no one imposed anything on you. Unlike now, you weren’t legally responsible for anyone or anything (you had no legal capacity). A child has no idea how the law works, let alone on what the law IS. [READ MORE: Can a child sue or be sued?] But today we’ll tell you about a 6-year-old who actually sued someone… and not just anyone but the Government of Malaysia! The case of this young boy is known as YSM v Ketua Pengarah Pendaftaran Negara and it’s a pretty complicated story, but we’ll do our best to relate it to you in the best possible way. He was born in Malaysia, but he isn’t a Malaysian… As mentioned, the case is called YSM v Ketua Pengarah Pendaftaran Negara. For those of you who don’t know how case citations work, YSM is the boy in question and the other party is the National Registration Department, or JPN as we know it. Therefore, the case is between the boy and JPN. YSM is an abbreviation of the boy’s actual name and at the request of his lawyers, in this article we will refer to YSM as Kevin and to his adoptive father as Paul. It all started when Kevin was born in 2008 in Penang to a Malaysian father and Indonesian mother (the two of them unmarried), and this was stated in his birth certificate. Shortly after for reasons unknown, his parents decided to give him up for adoption. So when Kevin was four months old, a man named Paul adopted Kevin and a new birth certificate was issued to him. The trouble started when Paul realised that in the birth certificate, it was stated that Kevin was a permanent resident instead of a citizen. For Paul and Kevin, this was really bad news, because if Kevin didn’t get his citizenship, he would be considered to be a stateless child. In this case, the PR cannot be converted to a citizenship, which means that other than being legally allowed to live here, he would not be given any other proper identification documents. For example, not getting a Malaysian IC or passport would mean that he would not be able to legally own anything nor can he leave the country. He would also not be able to get formal education in any recognized institution. But perhaps the most harrowing one of all would be that he would belong to NO country. Legally, he would have no place to call home. For many, their nationality is a part of their identity and belonging to a particular country gives someone certain rights and privileges. If Kevin was going to be stateless for the rest of his life, it was going to an incredibly tough journey ahead. And so, Paul knew that he couldn’t just let things be. Seeing that he needed some other way out of this mess, he did what any sensible person would do… Paul sued JPN on Kevin’s behalf But wait a minute… if the case was between Kevin and JPN, why was Paul suing on his behalf? Obviously, it would be impossible for Kevin himself to file a case in court, which is why Paul, an adult who also happened to be a lawyer did so on his behalf. But throughout the case, whatever the court said was directed at Kevin himself and not towards Paul. So it’s definitely not clickbait when we said that it was a 6-year-old who sued the government... The case began at the High Court and by then, it was 2014 and Kevin was six years old. They might have gone to court hoping to get a remedy to their problem but once again, this family received bad news. Remember that we said that Kevin’s birth parents were unmarried? Well, this was the root of the problem. The High Court said that because Kevin was born to unmarried parents, he was an illegitimate child. Section 17, Schedule 2, Part III of the Federal Constitution says that one of the criteria to get Malaysian citizenship is that the person must be born to a married couple. If the child was illegitimate, he or she would take on the citizenship of the birth mother. “For the purpose of Part III of this Constitution references to a person’s father or to his parent, or to one of this parents, are in relation to a person who is illegitimate to be construed as references to his mother...” This could not apply in Kevin's case because his birth parents weren’t married and also because his mother was no longer in the picture. But, why did their marital status matter when now, Kevin had already been adopted by Paul and was legally Paul’s child? To most of us, this argument would be a sound one and we probably would say that Kevin should get Malaysian citizenship as he’s now been adopted by a Malaysian. In fact, this was the argument used by Kevin’s lawyers but the Court said that the adoption had no effect on Kevin’s citizenship. In the Federal Constitution, the meaning of “parent” was strictly limited to birth parents only and not adoptive parents. So, Paul’s marital status or the fact that he was a Malaysian didn’t matter at all. The court said that none of that could change the fact that Kevin was born to unmarried parents. Judge Asmabi Mohamad said: ...the Adoption Act 1952 (Act 257) relates to the right and control an adopted father has over his adopted child. However, the adoption order does not at all confer the status of citizenship on the plaintiff. This is due to the fact that there is a specific law, the FC, which deals with the issue concerning citizenship so any matters concerning citizenship should be read and construed within the four corners of the FC. The power relating to citizenship must therefore be vested to the federal government and Minister of Home Affairs... So the courts put their foot down and said that the adoption was no reason to give Kevin citizenship. But here’s another bit of drama to the story: even before the court case began… The Court said they weren’t the best people to decide on the matter What Kevin and Paul were going through was bad enough, but after finally making it to court, the High Court actually said that this matter wasn’t for them to decide on. Paul was told that bringing the case to court at that point was an abuse of process of the court. But this is not because the court wanted to be mean or because it just didn’t feel like hearing the case. The issue was that, the court didn’t have the expertise to hear matters on citizenship. The court said that the government is better equipped to decide on them. This is because it is the government that has access to information and records pertaining to a person which the courts would naturally not have. Think of it this way: If you have an Acer laptop that needs to be repaired, you could technically still take it to a shop that repairs Dell laptops. While your laptop might be successfully repaired, you probably would have gotten a better job done in an Acer repair centre because Acer would have better knowledge on how Acer laptops work compared to Dell. So, if the government was the one who could decide on Kevin’s case and it was them who had denied him citizenship, did this mean that there was no recourse for him? The judge said that if the government rejects an application for citizenship, the aggrieved party can appeal this decision to the Minister of Home Affairs. However, once the Minister has made his decision, that decision is final and it cannot be appealed. While reading up on Kevin’s case and judgment, we noted that there was no appeal made to the Minister with regard to JPN’s decision. Instead, Paul and Kevin had gone straight to the court. Had they won the case when they took it to court, it would have been great news for other cases such as Kevin’s. If the law was changed because of how Kevin’s case was decided, that would have set a new yardstick or criteria for how cases on stateless children would be decided. Have things changed for Kevin? If not getting citizenship is upsetting enough, after having his application rejected twice, Kevin also had to pay damages to JPN on two occasions: RM1,000 for the first time and RM4,000 for the second. And unfortunately, while the case was still being heard in 2016, Paul passed away after battling with leukemia. Thankfully, his legal firm partner, Mr. Tan adopted Kevin and continued to pursue the matter for him. It has been 3 years since the High Court’s decision, but the battle isn’t over. Eager to know if Kevin will have another chance at fighting his case, we contacted his lawyers for some updates on the case. They informed us that the Court of Appeal is set to hear the case once more at the end of April 2019. Based on the Court of Appeal’s verdict, a decision will be made as to whether the case should be taken to the Federal Court next or not. UPDATE: So the Court of Appeal heard the case on the 25th of April 2019, but they have given Kevin and his lawyers as well as JPN and their lawyers some more time to come to an agreement on the issue among themselves. The parties are supposed to update the court on the outcome of their meeting and status of their agreement when they meet again on 20th June 2019. There are many more Kevins in Malaysia Kevin’s case isn’t a rare one and many similar cases have been given the same reasons when the case is taken to court. A few weeks ago, a case like Kevin’s made headlines. Rachel Sia, a 19-year-old Sarawakian is also a stateless person despite being born in Malaysia. The main difference between Rachel’s case and Kevin’s is that Rachel was adopted by a married couple, unlike Kevin who was adopted by a single man. Again, this did not make a difference to Rachel’s legitimacy because no one could prove that her birth parents were married. And because of that, she is deemed illegitimate and till date does not have a Malaysian IC and passport and so, she cannot travel out of Sarawak. As a contrasting example, we have the case of MJA v AL. The facts of this case are also almost similar to Kevin’s but the only difference is that she was raised by her biological parents and was never given up for adoption. At first, she was said to be illegitimate because at the time of her birth, her parents were not married. However, her appeal for citizenship was allowed because although her parents were unmarried at the time of her birth, they subsequently got married and so, she was not deemed to be an illegitimate child anymore."
" Here's what Grab drivers need to know about getting their cars checked in PUSPAKOM [Klik sini untuk versi Bahasa Malaysia] During the 14th General Elections in 2018, the Pakatan Harapan campaign promised that the rights of e-hailing (like Grab, myCar, etc) drivers will be upheld without neglecting the rights of taxi drivers. Trying to keep their promise and strike that balance, Transport Minister Anthony Loke announced that e-hailing drivers and taxi drivers will now fall under the same regulations by the 12th of July 2019. This would mean that all drivers (whether e-hailing or taxi) will have to get a Public Service Vehicle (PSV) licence, go for health screenings, and send their cars for regular inspections. Nevertheless, we know that some of you may be in conflict as to whether this is gonna be a good or bad move. But on Sunday, we were invited by PUSPAKOM for a press conference, and their CEO Mohammed Shukor Ismail explained the car inspection procedures and also ensured the public that this is done to sure quality of services, as opposed to it being a burden. “This isn’t meant to burden e-hailing drivers, this is an advantage for all” – PUSPAKOM CEO Mohammed Shukor Ismail;translated from BM by ASKLEGAL There are quite a lot of information given to use and we can’t display all of it here, but if you want, there’s a slide on PUSPAKOM’s website you can refer to. And don’t worry, we’ll refer to the necessary pages of the slides in our article. So back to e-hailing business, PUSPAKOM told us that there’s an estimated 200,000 e-hailing vehicles out there, and…. You can inspect your car any day of the week (Monday to Sunday) Before we tell you what PUSPAKOM is doing to handle this potentially large influx of drivers coming in for inspection, we thought it’s best to inform you that PUSPAKOM isn’t an enforcement agency. They’re basically a body tasked with conducting vehicle inspections. In other words, PUSPAKOM certifies that your car is roadworthy, if your car isn’t worthy JPJ does the enforcement. “PUSPAKOM is a vehicle inspection company and isn't an enforcement authority nor lawmaker. PUSPAKOM is concerned with the roadworthiness of the vehicle through vehicle inspection that’s in accordance with the Road Transport Act 1987 and its compliance of other related standards and regulations.” – PUSPAKOM Communications & Custoner Service Department [READ MORE: IS YOUR CAR SAFE TO BE DRIVEN ON MSIAN ROADS? THIS RM50 PUSPAKOM CHECK WILL TELL YOU] Ever since Malaysians were introduced to easy-to-use e-hailing apps where we can Grab a ride easily, the e-hailing industry has only kept growing – in fact last year, local transportation authorities approved permits for 11 new e-hailing companies last year. This seems to have resulted in an estimated number of 200,000 e-hailing vehicles driving on our roads according to PUSPAKOM. And given that the government is gonna enforce some new regulations for e-hailing soon (July 12 guys! That’s not far away!), you’d think the e-hailing drivers would be busy trying to get themselves compliant with the regulations. Unfortunately for the new PUSPAKOM inspections required by the new regulations, PUSPAKOM told us that between April 1st and April 10th only 35 out of the 200,000 estimated drivers have done this inspection. And if you’re thinking “how’s PUSPAKOM gonna handle all 200,000 vehicles ?”, PUSPAKOM told us they have more than enough capacity to handle it. Currently PUSPAKOM has more than 50 operation centres nation wide, and to handle to the vast numbers of e-hailing cars, they’ve done the following: 18 inspection centres are open seven days a week 10 inspection centres are open six days a week 19 inspection centres are open 5 days a week, but with 2 extra hours added to their normal schedule everyday setting up mobile/moving inspection centres If you’re one of the e-hailing drivers who’d like to take advantage of this new operating hours by PUSPAKOM, you can click the link here to see which PUSKAPOM centre will suit your schedule and convenience. So, in addition to letting us know they have the resources to handle all these cars, they also told us…. The inspection process will only take around 60 minutes For the average Malaysian who has a car for driving to and back from work, we would’ve visited PUSPAKOM centres if we privately bought/sold a used car. If you’ve done so before, the process is known as a transfer of ownership inspection. Now for the e-hailing drivers and their car, the inspection process would be a little bit different since they wont be transferring their cars to anyone. The inspection process would be conducted to make sure that the car is roadworthy for the purposes of driving passengers commercially. So this would mean that PUSPAKOM would check whether your brakes are working properly, there’s no illegal tint on your car, etc. There’s a little bit extra inspection requirements by PUSPAKOM like for the placing of adverts on the car. We can’t go through all of these processes and checks for you, but there’s an inspection flowchart you can access here and there’s a chart you can look at below. Only cars more than 3 years old need to be inspected For some added information, NOT all the e-hailing drivers and their cars would have to be subject for this PUSPAKOM inspection, because they told us it’s only for cars more than 3 years old. There’s a few types of inspections these ‘above 3 years old’ cars would have to go for (and they have different fees), and if you want a brief overview of it, there’s: An initial inspection with a payable fee of RM75 A re-inspection should the driver fail the initial inspection. The fee for this would be an extra RM25 Subsequent inspections annually to ensure the vehicle is roadworthy every year. The fee for this is RM55 But if you want more information on the different types of inspection processes, it’s on page 12 of the slides if you wanna view it in full: Oh and if all these webs of information are making you think, “gosh that’s gonna take up a lot of my time”, PUSPAKOM assured us that the whole process would only take about 60 minutes, which brings us to our next point... You can use an app As we’ve mentioned in the beginning of the article, PUSPAKOM emphasised this new inspection requirements aren’t meant to be a burden toward e-hailing drivers. They ensured that this would be beneficial for all parties, as everyone would know that their ride will be a roadworthy one. If you really think about it, you wouldn’t want your Grab ride to suddenly stall halfway now would you? Oh, and besides amping up the working hours of certain PUSPAKOM centres, they told that there’s an app you can use to book an inspection appointment called MyPUSPAKOM. Using this app, you may be able to avoid long queues while waiting for your inspection. Although PUSPAKOM is prepared to handle these 200,000 cars, you probably wouldn’t want to get your inspection done at the last minute, to avoid long queues and waiting periods."
"Betul ke Malaysia haramkan 'Android box'? Ini apa yang SKMM kata Smart Android TV Box, Videocon, XiaoMi MiBox dan banyak lagi nama. Itulah dia Android Box yang ada di sekeliling kita sekarang ni. Tapi nampaknya kita tak boleh suka sangat, sebab benda ni mungkin tak boleh digunakan lagi di Malaysia tak lama lagi. Ini kerana, kerajaan ada rancangan nak haramkan penggunaan Smart TV box ni diseluruh negara. Rancangan ni dah menimbulkan perbincangan yang hangat di kalangan masyarakat, selain yang suarakan rasa tak puas hati. Ini kerana, diorang tak nampak keperluan kenapa nak diharamkan Android Box ni. Kalau ada di antara korang yang masih blur pasal apa dia Android Box (atau dikenali sebagai Smart TV kadang-kadang). Android Box ni sebenarnya lebih kepada peranti yang berhubung dengan TV untuk korang tengok movie. Ia bagi korang akses dengan banyak aplikasi berbeza, yang korang boleh akses melalui Play Store korang. Ia juga membolehkan korang melayari internet, baca berita, beli barang atas talian, dan termasuk juga hantar email. Tapi semuanya tu dibuat pada skrin yang lebih besar. Kalau peranti ni banyak gunanya dan bawa lebih banyak kebaikan dari keburukan, kenapa pula kerajaan nak haramkan? Dan apa pula yang akan jadi pada korang kalau korang dah ada Android Box ni? Apa sebab di sebalik pengharaman ni? Jawapannya… kita ada berita baik dan berita buruk. Berita baiknya… tak semua Android Box diharamkan. Berita buruknya pula, tak semua Android Box ada sijil yang diperlukan oleh Suruhanjaya Komunikasi dan Multimedia Malaysia (SKMM). Disebabkan benda ni agak mengelirukan, penjelasan SKMM mungkin dapat membantu. Kitorang pun hubungi SKMM untuk dapatkan maklumat pasal benda ni, dan jurucakap tu beritahu kitorang – sebenarnya Android Box tu sendiri tak diharamkan. Sebabnya, ia cuma peranti biasa yang berhubung dengan pelbagai aplikasi berbeza dalam talian. Tapi, kalau sambungan kabel/satelit antarabangsa yang tak dibenarkan berhubung dengan Android Box tu, barulah ia dikatakan sebagai menyalahi undang-undang. Dengan kata lain, kalau Android Box tu dihubungkan ke sambungan kabel yang TAK datang dari sambungan talian darat Malaysia atau sambungan WIFI yang diiktiraf, maka ia melanggar peraturan SKMM. Benda lain yang membuatkan sesuatu Android Box tu diharamkan adalah, bila ia tak dapat pengiktirafan dari Institut Piawaian dan Penyelidikan Perindustrian Malaysia (SIRIM). Ini bermakna, ia tak boleh digunakan di negara ni. SIRIM dah dilantik sebagai badan kawal selia yang diberi kuasa untuk menguji dan meluluskan penggunaan Android Box yang sampai ke negara ni. Jadi, kalau Android Box tu tak ada sijil/logo SIRIM, ini bermakna ia adalah peranti tak sah dan haram. Ini kerana, kandungan Android Box haram boleh melanggar undang-undang harta intelek, terutamanya Akta Hak Cipta. Pihak SKMM dan Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna (KPDNHEP) dah menjejaki Android Box haram ni, sebab kebanyakan darinya menyediakan laman strim haram kepada orang ramai untuk menyiarkan filem, dokumentari dan berita. Jadi, kalau korang sekarang ni ada Android Box dan korang tak pasti sama ada ia sah atau tak, maka persoalan yang muncul adalah… apa akan jadi kalau korang ditangkap ada Android Box dengan rangkaian haram? Macam mana kalau Android Box korang tu tak sah? Jadinya, kalau korang boleh strim lebih dari 3000+ saluran dengan Android Box dan korang boleh pulak tengok filem yang baru je keluar wayang dekat rumah, maka ada kemungkinan yang korang boleh didakwa di bawah Seksyen 239, Akta Komunikasi dan Multimedia 1998. Menurut akta tersebut: Seseorang yang – (a) menggunakan apa-apa kelengkapan atau peranti tidak standard; (b) ada dalam milikannya apa-apa kelengkapan atau peranti tidak standard yang dia tahu atau ada sebab untuk percaya merupakan suatu kelengkapan atau peranti tidak standard bagi maksud memasang, mengerjakan, mengendalikan atau menggunakan kelengkapan atau peranti itu; Makanya, memiliki Android Box yang tak memenuhi piawaian SKMM dan kalau rangkaiannya berhubung dengan sumber yang haram, korang boleh didakwa di bawah akta ni. Jadi, kalau korang ada Android Box dan korang tahu yang ia berhubung dengan rangkaian tak sah, atau korang buat sesuatu yang tak sah dengannya, pihak berkuasa boleh datang dan tahan korang. Ia sama je macam korang muat turun filem cetak rompak atau software haram dalam laptop. Ia tak membuatkan laptop korang tu haram, tapi apa yang korang buat tu sebenarnya yang salah. Tapi persoalan lain pun muncul juga, macam mana kalau korang jual Android Box ni, dan dengan larangan yang ada sekarang, apa yang akan jadi pada korang? Ya benar, jual Android Box pun sebenarnya diharamkan Kalau nak tahu pasal sah di sisi undang-undang ni, ia dinyatakan dalam dua akta iaitu Akta Komunikasi dan Multimedia 1998 dan Peraturan-Peraturan Komunikasi dan Multimedia (Standard Teknik) 2000. Di bawah Peraturan 16(1), Peraturan-Peraturan Komunikasi dan Multimedia 2000 menerangkan larangan terhadap penjual yang secara haram mengedarkan Android Box dalam peraturannya sebagai: Tiada seorang pun boleh menggunakan, menawarkan untuk menjual, menjual atau ada dalam miliknya dengan tujuan untuk menjual apa-apa kelengkapan komunikasi; (b) yang tidak diperakui sebagaimana yang dikehendaki oleh Peraturan-Peraturan ini; Peraturan ni bagitau pasal larangan terhadap apa je peranti yang tak memenuhi peraturan, dan ni termasuklah Android Box sekali. Hukuman terhadap kesalahan menjual Android Haram ni dah diceritakan dalam satu laporan media baru-baru ni. Bila sepasang suami isteri dah ditahan sebab menjual Android Box yang tak memenuhi piawaian SKMM. Diorang dah didakwa di bawah Seksyen 239 Akta Multimedia dan Komunikasi kerana mengguna, memiliki atau membekalkan peranti tak standard (Android Box), yang membawa hukuman penjara tak lebih dua tahun dan denda tak melebihi RM100,000.00 atau kedua-duanya. Pastikan Android Box korang tu sah Buat masa sekarang ni, SKMM dah menyekat lebih dari 246 laman web yang menyediakan penyiaran haram, dan tengah menahan para pengedar dan penjenayah Android Box haram ni. Seperti mana keinginan korang nak akses berbagai saluran dan rangkaian dalam satu peranti yang harganya berpatutan, melihat kesan dan akibatnya sama juga penting sebenarnya. Muat turun konten tak sah dan strim melalui Android Box yang tak ada kelulusan juga boleh membahayakan. Sebab, ada di antara peranti android ni boleh digunakan sebagai alat intipan untuk mengumpul data-data peribadi korang, yang boleh digunakan untuk keuntungan komersial. Pelaksanaan pengharaman ini juga boleh mengekang aktiviti cetak rompak dan menghentikan pelanggaran undang-undang hak cipta. Mungkin, jalan terbaik untuk korang adalah dengan pastikan Android Box korang tu sah, yang bukan je ia lebih bagus, tapi juga menyelamatkan korang dari… dipenjara."
"Are android boxes illegal in Malaysia? Here's what MCMC had to say *Article originally written in April 2019, and updated in May 2021. Smart Android TV Box, Videocon, XiaoMi MiBox, i-Boite etc etc. An Android box goes by many names, and you might have one yourself, But back in 2019 the government had considered banning these Smart TV boxes for good. Luckily for us, the government decided against banning it. Instead, they banned servers that streamed illegal content through an Android box. More recently in May 2021, the Intellectual Property High Court has declared that selling and distributing TV boxes that provides unauthorised access to copyrighted works is now considered a copyright infringement. In case you don’t know, an Android Box (also known as Smart TV) is more than just a device you connect to your TV to watch movies. It gives you access to a lot of different apps from the Play Store. You can also browse the internet, read the news, do some online shopping and even send emails – all on a bigger screen. If this device has so many uses and seems to bring more benefit than harm, why did the government consider banning it back then? . The device itself isn’t illegal We called up the MCMC regarding this matter, and the spokesperson told us that it isn’t the Android box itself that is illegal. After all, it’s just an ordinary device that connects to several different apps online. However, if an unauthorised cable connection/international satellite is connected to the Android box, then that it is said to be illegal. In other words, if an Android box is connected to a cable connection that is NOT from a Malaysian landline connection or a recognised WIFI connection, then it goes against the MCMC regulations. Another thing about illegal Android boxes are, if it doesn’t carry the Standard and Industrial Research Institute (SIRIM)’s approval, it cannot be used in the country. SIRIM has been appointed as the authorised regulatory body to test and approve the use of Android boxes that have been coming into Malaysia. So, if an Android box doesn’t have a SIRIM cert/logo then it is an unauthorised, illegal device. So, this brings us back to the reason why they are actually illegal. This is simply because the contents of these illegal set-up boxes go against intellectual property laws, particularly the Copyright Act. The MCMC along with the Ministry of Domestic Trade and Consumer Affairs have been tracking down these illegal Android boxes as most of these provide illegal streaming sites for the public to screen movies, documentaries and news over the set-top box. So if you currently own an Android box and you’re unsure of it’s legalities...the question now will be, what happens if you are caught with an Android box with an illegal network? What if your Android box isn’t legal? If you’re using your Android box to stream illegal content, then there is a possibility for you to be liable under Section 239 of the Communications and Multimedia Act 1998. The Act states: A person who — (a) uses any non-standard equipment or device; (b) has in his possession any non-standard equipment or device that he knows or has reason to believe is a non-standard equipment or device for the purpose of installing, working, operating or using the equipment or device; Therefore, having an Android box that does not meet the standards of the MCMC and if the network connection is being outsourced from a different line, you can be liable under the Act. So, if you do own an Android box but you’re aware that it is connected to illegal network or you do something illegal with it, the authorities can come after you. It’s similar to how when you download pirated movies or illegal softwares on your laptop, which doesn’t make the laptop by itself illegal, but what you do with it is. With that being established, what if you also sold Android boxes and with the bans imposed now, how would it affect you? Well, the answer is pretty obvious because, if a person who owns the illegal device can potentially face legal action, someone who sells it would most definitely be in a lot of trouble as well. So yes, selling Android boxes are illegal too Legally, this is stated in two separate Acts, the Communications and Multimedia Act 1998 and the Communications and Multimedia (Technical Standards) Regulations 2000. The law under Regulation 16(1) of the Communications and Multimedia Regulations 2000 explains this prohibition against sellers who illegally distribute the Android boxes in the regulation as: No person shall use, offer for sale, sell or have in his possession with a view to sell any communications equipment - (b) which is not certified as required by these Regulations The Regulation states the prohibition of any device that does not comply with the regulations, and this would apply to Android boxes as well. These laws are regularly enforced, and as we can see, can come with a hefty penalty. Back in February 2021, a company director faced six charges for having six Android boxes that could access content from Astro for free. She was fined RM5,000 for each charge (RM30,000 total) and could face a month’s jail for each charge if she couldn’t pay the penalty. Back in 2019, a couple was arrested for illegally distributing (selling) Android boxes that did not meet the regulations set by the MCMC. They were then charged under Section 239 of the Multimedia and Communications Act for the unlawful use, possession or supply of non-standard equipment/device aka Android boxes, which carries a sentence of less than two years imprisonment, a fine not exceeding RM100,000.00 or both. Update: It’s now a copyright infringement Now, sellers and distributors can also be charged under the Copyright Act 1987 for copyright infringement. According to a declaration by the Intellectual Property High Court in KL, selling and distributing TV boxes that provide unauthorised content to copyrighted work is considered a copyright infringement. In plain English: if you’re selling or distributing an Android box that provides pirated streams on it, you can be charged under the Copyright Act 1987. Under Section 37 of the Act, the guilty party can be ordered to do things such as: pay damages to the copyright holder (lost revenue due to the illegal stream) an injunction (to stop selling and distributing illegal TV boxes) pay statutory damages (a set amount of payment, eg. RM25,000 per pirated movie but not more than RM500,000 in total) account of profits (basically handover the illegal profits to the copyrights owner), and; anything the court deems fit as compensation So basically, in addition to paying a fine for each illegal Android box, they’ll also be ordered to pay damages (court ordered payments) to the copyright holders. Ensure your Android box is certified The MCMC has blocked up to 246 illegal servers thus far, and is in the midst of arresting the distributors or perpetrators of these illegal Android boxes. As much as we want to access a variety of channels and networks in just one device at an affordable price, looking at the bigger picture is just as important. Illegally downloading pirated content or streaming them via an unauthorised Android box can be dangerous, as some of these Android devices could be used as spying tools to collect personal data and other details, which could be used for commercial gains. The ban is also to be implemented to curb piracy activities and to stop the infringement of copyright laws. Perhaps, the best way is to ensure your Android box is a certified device, which will not only save you big bucks...but probably also a jail term."
"Here's 5 common tax filing mistakes made by Malaysian taxpayers  ​​​​​​It’s that time of the year again where most Malaysians will be rushing to complete their income tax claims from the previous year. This can be a rather daunting experience for some of us as we probably have no idea on where to even start. What’s worse is, you can make a mistake or forget to declare something—which carries some pretty serious consequences. Before we look at some of the ways you might end up paying MORE than what you will for your taxes—let’s look at some updates to tax payment in 2020. If you didn’t already know, your Employees Provident Fund (EPF) contributions are actually tax-deductible up to RM4,000. This basically means you may be taxed for your EPF contributions in Malaysia. But starting April 2020, the employees’ contribution rate to EPF will be reduced from 11% to 7%—as part of the Economic Stimulus Package that was announced by the previous government. Now this might bring some changes to tax payments made for EPF contributions, but if you’d like to stick to the 11% rate, you’ll have to fill in Borang KWSP 17A (Khas 2020)—that will only be made available on EPF’s website in the near future. Now that we’ve caught up with the updates, let’s take a look at what happens if you try and avoid paying your taxes: You’ll be fined 300% more than what you owe Evading taxes or not declaring it is an offence punishable with a fine of RM1,000 up to RM20,000 on top of an additional 300% of the amount you tried to avoid in the first place. Needless to say, that’s probably more than the amount you’ll be taxed in the first place. Section 114 of the Income Tax Act 1967 states: “...Any person who wilfully and with intent to evade or assist any other person to evade tax...shall be guilty of an offence and shall, on conviction, be liable to a fine of not less than one thousand ringgit and not more than twenty thousand ringgit or to imprisonment for a term not exceeding three years or to both...” So anyone who tries to avoid paying tax will be guilty of committing an offence, carrying the penalties mentioned earlier. The Tax Act also goes on to list some methods of evasion, whereby making a false statement or entry can make you liable under the Act. So it’s best to try and avoid any sort of mistake at all costs when it comes to filing your taxes. [READ MORE: 5 common Malaysian tax offences you don’t want to accidentally commit] A good starting point to note is, if your annual income is less than RM34,000 you’re not required to pay any tax. But if you do earn enough to be taxed and now the deadline to file your taxes are getting closer, we decided to list out five common mistakes tax payers may make in Malaysia. 1.Not having your documents handy To those of you who plan to file your taxes via e-Filing, here’s a tip on what are the documents you’ll need to be prepared with while filing your taxes online: Income details/statements – EA form, dividends rental, pension, royalties, etc. Reference details – MyKad, Passport, Marriage, or Tax number. Your EPF statement Receipts/Invoices – To claim for reliefs, rebate, & exemptions. The e-Filing method is one of the easiest ways to file your taxes, since most things are already automated for you and it helps save time and energy. But of course, if you like to do things the old school way, there is no harm doing it the manually either. Regardless of how you plan to file your taxes, one thing needs to be there – your pin number. For first time tax payers, the Inland Revenue Board of Malaysia, or better known in Malay as the Lembaga Hasil Dalam Negeri (LHDN) has made it a requirement to get the pin before starting your tax filings. The pin can be obtained from the nearest LHDN office or the Urban Transformation Centre (UTC). Also, there are no charges or payments that need to be made to obtain the pin. Once you’ve gotten your pin, you can proceed to log into the e-Filing form and fill in your personal details. And for those of you who’ve been filing taxes every year and may have forgotten your pin or passcode, you can choose to either retrieve it via email by just following the procedures on the site or call up the LHDN headquarters. 2. Filling in the wrong EA form There is a possibility for tax payers to make a mistake on filing the EA form because there is not one but...several different EA forms that differ with your source of income and residential status. The deadlines vary with accordance to the type of form you fill in. Most of the time, Malaysians are required to fill in forms that fall under (1) and (2). So, here’s a list to help you understand which category might apply to you: Those who own and run a business – Form e-B/B: Deadline 30th June 2019 Employers who run a company/business – Form e-E: Deadline 31st March 2019 Partnerships – Form e-P: Deadline 30th June 2019 Those who do not run a business and are employed – Form e-BE/BE: Deadline 30th April 2019 Non-residents who are employed and/or run their own business – Form e-M/M: Deadline 30th June 2019 Those who are experts or specialize in a certain skill – Form e-BT/BT: Deadline 30th April 2019 Non-residents experts or specialize in a certain skill – Form e-MT/MT: Deadline 30th June 2019 The non-residents forms apply to foreigners who do not have a Malaysian citizenship/permanent residence but reside and work in Malaysia. With all these different forms, one can sometimes get confused on which one would be the most suitable. If you ever do stumble upon this issue, you can always call up the LHDN hotline number: 1-800-88-5436. 3. Not knowing what your tax reliefs and deductions are Before we go on, it’s important to clarify that there is a slight difference between an income tax deduction and an income tax relief. An income tax deduction is a result of gifts and donations to charitable organisations or Government organisations. For example, if you donated RM5,000.00 to an orphanage to raise funds, only 7% of your chargable income will be deducted from your overall annual income. However, do note that there will need to be a documentation of evidence to prove that the transactions took place. This can be via receipts and invoices, for example. A tax relief on the other hand is when your obligations to pay tax are either reduced or eliminated entirely. Most taxpayers are entitled to an exemption on their tax returns, which reduces the amount you have to pay in your tax filings. However, tax reliefs are subjective and can vary an individual basis. Below are some of the exemptions given to tax payers: So, another reason why filing your taxes online is somewhat better is because...most of it is automated on the site! All you have to do is declare the right thing and know what your reliefs/deductions are in order to avoid paying more. For instance, you could have spent on your education or bought a new wheelchair for your ailing grandma. The extensive list for this is laid out in the official Inland Revenue Board Of Malaysia’s site for reference. 4. Not paying any outstanding balance Sometimes, we may have missed out something while filing up our taxes and this might cause a sense of anxiety in some. However, it isn’t too late to pay the Inland Revenue Department even after submitting your taxes. But take note: This is different from NOT declaring your taxes in the first place, as mentioned earlier. So let’s just say you have two jobs and one of it happens to be a contract based job. You only remembered this after filing your taxes, and now you’re wondering if you can still declare it. There is still a chance for you to do it as soon as you can. So in circumstances like this where you have an outstanding payment to make, you can always settle it by paying through FPX (online banking), at the nearest ATM or over the LHDN counter. But, what if you have overpaid your taxes? This is also yet another reason why we’re urged to file taxes earlier as you can receive any refunds earlier too (if you have any). Also, when you file your taxes via the e-Filing method, the Inland Revenue Department would directly deposit any refunds that are available directly into your bank account. The refunds are usually credited within 30 days after the income declaration is made. So it’ll be like getting money ang pau from the LHDN...only thing is...it’s still your money. *Cries internally* 5. Misplacing receipts for income tax declaration We never know how important getting a receipt is until you have to file your income taxes. Section 82A(1) and (2) of the Income Tax Act actually requires us to keep our receipts for at least 7 years. Remember how we talked about tax reliefs/deductions earlier and on how it’s important to keep our receipts, which will come in handy when you’re declaring your taxes? The receipts are basically proof that you’ve performed the transaction and you are eligible for the relief that you’re supposed to get. Further under Section 119A of the Act, the offence of not keeping paper records for 7 years is a criminal offence, which carries a sentence of one year imprisonment and/or a fine of RM300.00 – RM10,000.00. So, it’s best to just keep your important receipts for as long as possible just in case you make a mistake somewhere down the line. This is simply because there isn’t a timeline for certain tax offences and the tax officials can come after you way after you’ve filed your taxes too. So in cases as such, keeping receipts as proof can be a way to show that you may have made an honest, genuine mistake and you can avoid being criminally charged. The LHDN actually does a random audit check once in a while to check on the proof of the claims. In circumstances like that, receipts and documented evidences come in handy. Start filing early and save the headache Basically, the golden rule is to start on your taxes as soon as possible. Think of it as, doing your assignments and having to submit it on the deadline...and you still want that A Grade. It’s almost the same when it comes to taxes. Missing the submission deadlines can lead to a very heavy penalty with a fine not less than RM200 but not more than RM20,000 or a jail term not exceeding six months or both. Therefore, submit your tax returns to the LHDN by 30th April (for manual filing) and 15th May via e-Filing for individual tax calculations. For those who carry out businesses, the deadline is 30th June. If you’re reading this article after the tax season...we hope you’ve filed your taxes correctly for this year, but do take note of all the common mistakes that may happen for your future reference. So, get started early and happy taxing! :)"
"Noh Omar said stealing isn't wrong until you're caught...here's why he may not be wrong In a recent parliamentary sitting, a BN politician named Noh Omar gave an analogy that caught everyone’s attention and the ridicule of netizens. In fact, his statement caught our attention too, but it’s not for the reasons you think. Here’s the quote: “Stealing is not wrong, only when you are arrested it becomes wrong. Riding a motorcycle without a helmet is not wrong, only when the police arrest you it becomes wrong.” – Noh Omar during a parliamentary sitting It’s easy to understand why people would immediately label this statement as ‘not making sense’. A crime is wrong, and a person who committed a crime is a criminal. But here’s the thing, some law students may disagree with these people and somewhat agree with Noh Omar. This is because if a law student were to analyse Noh Omar’s statement in-part or as a whole, they’ll actually notice some legal basis according some of the legal theories and concepts they’ve studied. In fact a name that may come to mind to law students would be Hans Kelsen, and he suggested... Criminal law doesn’t say a criminal is a criminal Before we discuss this point, we’d like to point out that we’ll be discussing only half of Noh Omar’s statement first, “stealing is not wrong”. Sometimes in the final year of law school, a student may have to study a subject called jurisprudence. Some law students hate it and some law students love it, but in essence the subject discusses certain theories as to the nature of law itself. There are two major opposing thoughts in the field called natural law and positivism. Natural law in simple terms basically dictates that a law is not a law if it doesn’t have a sense of morality to it. In other words, law must reflect the morality of society. For example, a famous natural law philosopher once described the law as: “Law: an ordinance of reason for the common good, made by him who has care of the community.” – Thomas Aquinas So for someone who agrees that morality and law go hand in hand, may disagree with part of Noh Omar’s statement that “stealing is not wrong” – because obviously, stealing is an immoral act. But on the other side of the spectrum, positive law philosophers think that law and morality are two separate things (although they may influence each other) and law is just a law. One of these philosophers we mentioned earlier was an Austrian man named Hans Kelsen. If some people were to interpret the theories and works of Kelsen, they may say that he would agree with Noh Omar when he said that “stealing is not wrong” or stealing is immoral. Or to be more accurate he may not care about whether stealing is wrong/immoral when discussing the law. For Kelsen, when he studied the nature of law, he put every external factor out of window – whether it was morality or politics, he focused on the law itself Using that method he noticed one thing, once you cut the fat around everything surrounding the law, you’d learn that laws aren’t directed at people to do or not do something, but it’s directed at judges to punish someone if he does something, that does against the law. In other words, Kelsen says that a law wouldn’t say don’t steal because it’s wrong, and if you steal you’ll punished, it would say if someone is caught stealing, the punishment would be so and so. And guess what? If you see the law against theft in our penal code, it seems to indicate that! Section 379 of the Penal Code: “Whoever commits theft shall be punished with imprisonment for a term which may extend to seven years or with fine or with both” Notice how it’s worded without it not asking you to not do something, but it’s saying what will happen to you if you did that? Yupp, that’s exactly why Kelsen said what he said. But mind you this is just a theory, and there are tons of other legal theories out there – in fact as we’ve mentioned, we even had to cut Noh Omar’s statement in half to make this point. So we understand why you may disagree with this point. But now we shall continue to look at his statement as a whole for our next legal concept, and this is where law students or anyone else would have little disagreement. Everyone is innocent until proven guilty Sometimes you may see reported cases where a criminal was caught red handed. In such cases, it’s super obvious that he committed the crime. Now the question is, if it’s so obvious he committed the crime, why must he go to court and not just throw him in prison to save money and time? This is because in Malaysia and throughout most of the world, there’s a legal concept that applies to criminal justice systems called the ‘presumption of innocence’. This concept basically says that a suspect is innocent up until if the prosecution can prove he’s guilty beyond a reasonable doubt. Basically the prosecution has to prove his guilt, while the defence may only need to raise doubts when necessary. In the end it’s the judge who decides which side he wants to lean towards. So if you look at this way, the judge is the one who is responsible for enforcing the law; this is when we go back to Kelsen who suggested that laws are directed at judges. This is done to ensure that an innocent person doesn’t get unfairly punished for something he didn’t do. And to emphasise this point, perhaps a quote from a person more famous than Kelsen would be in order. Benjamin Franklin once said once said: “Better a hundred guilty men go free, than one innocent person suffer” We know some of you may be thinking that the idea of a 100 potential criminals roaming around is scary. But it seems to highlight the whole point for the reasoning behind this presumption. But nevertheless, we still have to go back and ask…. Is Noh Omar correct? Well it depends how you wanna view it. Because when it comes to legal theories and concepts there are tons of them out there. There are philosophers and scholars who seem to go against the principles of Kelsen, like Thomas Aquinas. Even those who agree with Kelsen may differ with how to interpret his work and theories. So if Noh Omar’s right or wrong, it totally depends on how you view the law itself. But if you really wanna take it down to the core, just think about this… We may break the law on a regular basis, whether it’s double parking, driving without the seatbelt on, or even sneaking a cigarette at the mamak – but assuming you weren’t caught, is it still wrong? Let us know in the comments."
"Can your Majlis Perbandaran stop people from putting annoying flyers on your car? So you decide to make a quick visit to the bank to withdraw money. It starts raining, so you rush back to your car and turn on the engine. As soon as you put on the wipers, you see bits and pieces of paper being shredded all over your windscreen. It’s ANOTHER flyer that has been clipped on your wiper with hopes that you’ll read it. As much as flyers/brochures are very informative, it can sometimes be a nuisance especially when it is placed on your windscreen or the handle of your car door. And when it rains, the paper shreds into pieces, incurring you an expense to wash your car or it can mess up the roads or pavements. So if you’ve had enough of this and now you’re wondering if it is legal to place flyers on cars in the first place you should know that... 1. Not all advertisements need a permit There are only several types of advertising that would require a permit first before being advertised. For instance, banners, billboards, balloon advertising and buntings need a permit from you local council before they’re put up and about. When it comes to putting flyers on cars that are parked, the laws and rules are rather flexible. To be more straightforward, there are no legislations that cover this area. However, there is a chance for it to be considered illegal if a particular housing community does not allow advertising in their residential area and file a complaint to the local council to discontinue or ban any form of advertising in the locality. For instance, it has been more than ten years since the Bukit Bandaraya Residents Association have been actively keeping their area free of illegal advertisements. A spokesperson from the association stated: “We are totally against the display of bunting, whether legal or illegal, in our housing area.” And besides just buntings, it is learnt that the association is also very much against any kind of advertising that would have a bad impact to the surrounding of the area. But this does not mean that those who distribute/advertise by setting up buntings or placing flyers on car windscreens are violating any law. If the residential association does not permit advertising in their area, then the local council can take an action against the advertisers. However, if it is being done in a public area where there are no grounded rules that states that it isn’t permitted, then there is not much that can be done to stop the flyers from being distributed. So if you are an entrepreneur and wish to advertise your business in a locality...where can you apply for this permit? From the local council, of course! Image from mpjasin.blogspot Every district in Malaysia has its own local council that helps enforce laws made by the Government (ie; DBKL, MBJB, MBPP). So, if you are a “victim” to these flyers being shoved on every part of your car, regardless of where you park, you can actually file a complaint with your local council over the nuisance that these flyers/advertisements make. The local council has the power to take action against illegal advertisements that are being circulated in a particular area. The powers of the local council is stated under Section 102(C) of the Local Government Act 1976 as follows: “In addition to the powers of making by-laws expressly or impliedly conferred upon it by any other provisions of this Act every local authority may from time to time make, amend and revoke by-laws in respect of all such matters as are necessary or desirable... (c) to regulate, license, restrict, prevent or remove the exhibition of advertisements;” The Act basically states that the Local Council has the right to remove or prevent any advertisements that go up around the localities that it governs. The offence of putting up illegal advertisements around the city carries a fine of RM 2,000.00 if done without a permit from the Local Council. If you’re looking into advertising, we checked with the Petaling Jaya Municipal Council (MBPJ) and the Kuala Lumpur City Hall (DBKL) on this matter. We were told that you can get these forms directly from their office, depending on which area you want to advertise in. For example, Majlis Pembandaran Petaling Jaya (MBPJ) already has the application form on their site to make it easier for people to apply. Although it’s not stated anywhere in the law or local council rules on whether advertising with flyers on cars are legal or not, it should not be taken for granted as there are other things at stake. It does more harm than good There is only so much a local council can do to prevent illegal advertisements across the country. One of the downfalls of advertising with brochures/flyers is that it isn’t environmentally friendly. It is both a waste of paper as a natural resource and most of the time, people tend to throw away the flyers on the road (without even reading them). The Manjung Municipal Council in Perak came up with a pretty creative way to dispose illegal banners. They introduced a program called the Local Agenda 21 (LA21) where illegal banners were collected from all around the city and were made into reusable bags, and stationary cases. So if you do see a flyer on your car windscreen someday, instead of just crushing it and throwing it where you stand, perhaps it would be better to just recycle it. At least this will ensure cleanliness and reduce the damage that is already being done."
"Kim Jong Nam's killer was only jailed for 3 months for the murder...here's why North Korea is one of the few countries in the world that has a nickname, the Hermit Kingdom. One of the few communist nations that are left on earth, this nickname was bestowed upon them because they are known to close themselves up to other countries. But up until a couple years back, did you know Malaysia had a pretty good relationship with North Korea? Yupp, we actually had a North Korean Embassy in KL, a North Korean restaurant, and we even took in North Korean labour. But like how some K-Dramas end, that good relationship we had came to a pause when North Korean secret agents allegedly used a Vietnamese (Doan) and Indonesian (Aisyah) woman to assassinate, Kim Jong Nam the brother of North Korean leader Kim Jong Un. According to the PDRM, the North Korean agents involved managed to flee back to North Korea but the Vietnamese and Indonesian women were apprehended and charged with murder. When they were arrested they claimed that they din’t know, that it was a murder plot, they claimed they were hired to perform a prank for a tv show. This was the start of a series of plot twists, because... They let the Indonesian woman go free As we mentioned earlier both suspects were charged under Section 302 of the Penal Code for murder, because they committed the same crime against the same person. But somehow only Aisyah (the Indonesian woman) was released. Because reasons for her release was not clear, the decision drew wide speculation. Some say that the Indonesian government used diplomatic channels to convince the Malaysian government to release Aisyah, and some say President Jokowi wanted to use her release as a plus point for the upcoming general elections. Nevertheless until an official reason is given, the speculations are what it is...speculations However what isn’t speculation is that the Attorney General has the powers to release Aisyah. This is mentioned in Article 145 (3) of the Federal Constitution which says that Attorney General has the authority to stop prosecuting whoever he wants. Article 145(3) of the Federal Constitution: “The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.” Thus according to this law, the Attorney General doesn’t need to give reasons for his decision, but the general takeaway is; it is legal. But Doan was sentenced to prison Doan (along with Aisyah) was charged with the crime of murder, but the judge reduced Doan’s charge to voluntarily cause hurt by dangerous weapons or methods which is a crime under Section 324 of the Penal Code. And instead of facing trial, Doan pled guilty to that crime and the judge subsequently sentenced her to 3 years and 4 months imprisonment. However here’s where it gets weird, although she’s sentenced to more than 3 imprisonment, she will probably be released next month. The reason for why her sentence is peculiar is because the judge considered the time Doan spent in remand. You see, before Doan was found guilty and sentenced, she had to be detained by the authorities in jail while she was waiting for trial. She was arrested on the 15th of February 2017 and her sentence was given on the 1st of April 2019, so that’s about more than 2 years in detention already. So all the court is doing is subtracting that time she was detained with the sentence given to her; she only serves the remainder. It’s not uncommon for a court to take into account time spent in remand under consideration. For example in the United States, there was a case involving a woman named Louise Woodward who was found guilty of involuntary manslaughter. She was arrested on 5th February 1997 and and her sentence during appeal on 10th November of the same year was given – 279 days in prison, which was the same amount of time she spent detained while waiting trial. The court decided also she should be freed immediately, as her sentence is to run since the date of arrest. Yes there are a lot of unanswered questions There’s this saying in law that “justice must not just be done, but justice must be seen to be done”, which basically means just because it’s legal it’s not enough, decisions must seem fair. This reasoning can resonate with how Aisyah was released because, we don’t really know why she was released and why Duon wasn’t released. Of course it would be better if the government had told us why such decision was made, but given how sensitive and complicated this whole matter is (on an international level, as well), we probably must wait a bit until we can hear the full story from our government."
"Can Malaysia exit any International Treaty that we sign...because we don't like it? Recently the Malaysian government has courted quite a bit of criticism by considering the signing of two international treaties – ICERD and The Rome Statute. ICERD drew criticism because it may have affected certain special privileges, and the Rome Statute may have affected matters concerning royalty. [READ MORE: 5 things you should know about Malaysia's signing of the Rome Statute] [READ MORE: 5 points about ICERD that Malaysians are disagreeing over] We actually ended up singing one treaty, the Rome Statute on 4th March 2019. But somehow on 5th April 2019 (today at the time of writing), Tun M decided to pull out from the treaty because: “There seems to be a lot of confusion about the Rome Statute, so we will not accede...this is not because we are against it, but because of the political confusion about what it entails, caused by people with vested interests” – Prime Minster Tun Mahathir at a press conference We’re not the only one to do it in the region, in fact the Philippines was in process of withdrawing from the Rome Statute while we were signing it. But here’s the thing, with ICERD things aren’t really a problem because we didn’t sign the law in first place – but with the Rome Statute we did; can we simply withdraw from it? If you were to think of it as a contract: if you don’t sign it, you don’t have to worry about it. But if you do sign it, you can’t simply pull out without consequences. So this begs the question...can we simply withdraw from an international treaty? Most treaties have an exit provision Treaties are basically agreements between nations that eventually becomes law. So if let’s say a bunch of countries agree that if one of them gets attacked, the rest of them must help that country; thus if a country really gets attacked, all of them must help. Similarly, the Statute of Rome is a treaty that prevents signatory countries from committing certain war crimes, and if they do, the people responsible must face the International Criminal Court. But now given that the Malaysian government has signed the law and agreed that it applies to them, can we choose to suddenly say “it doesn’t apply to us anymore” just like how Duterte did it? Well we just did, so the answer is YES. This is because, the Rome Statute has an exit/withdrawal provision. Article 127 (1) of the Rome Statute says: “A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.“ This basically means that when Malaysia suddenly decided that they don’t wanna follow the Rome Statute, they must notify the leader of the United Nations. And then after one year the withdrawal would be effective. It’s not just limited to the Rome Statute by the way, there are other treaties that Malaysia can exit or withdraw too. Take as an example, the Paris Agreement which is a treaty followed by many countries (including Malaysia) to fight climate change - if Malaysia wants to exit this treaty, they just have to follow the steps in Article 28 and voila, the law no longer applies to us. However we can’t exit or say we don’t wanna follow certain laws just to suit our purposes because... Not all international laws are escapable Just like how an average Malaysian citizen can’t suddenly decide that the Penal Code won’t apply to him, Malaysia (or any other country) can’t exit/withdraw certain international laws, such as... TREATIES WHICH DON’T HAVE EXIT MECHANISMS As we mentioned earlier, treaties like the Rome Statute or the Paris Agreement has a section in them which specifies a method in which countries can withdraw from the treaty. On the flip side, there are certain treaties that DON’T say how a country can withdraw from it. In such cases, reference must be made to the Vienna Convention on the Law of Treaties which is an international law explaining how treaties work. According to Article 56 of the Convention, if a treaty doesn’t say how a country can withdraw from it, a country can’t escape the treaty UNLESS: It’s decided there’s evidence showing that the parties actually intended an exit mechanism By looking at the treaty as a whole, parties can presume an exit mechanism exists So for example a treaty like the International Covenant on Civil and Political Rights it was decided that a country can’t simply pull out from such a law. In fact when North Korea tried to withdraw from this treaty by notifying the UN’s leader, it was held that they couldn’t. JUS COGENS Jus cogens is defined as peremptory norms, which basically means nothing unless you have a degree in political science. But for the rest of us without a degree in political science, what it basically means is, there are certain unwritten rules in international law that countries must follow no matter what. So jus cogens basically prohibits genocide, maritime piracy, enslaving in general (to include slavery as well as the slave trade), torture, returning refugees to where they came from and wars of aggression. And even if countries try to create a treaty that let’s say allows slavery, torture, etc; that treaty would be illegal because Article 53 of the Vienna Convention on the Law of Treaties says that, countries can’t make treaties that goes against these peremptory norms. Thus, this is another example of international laws that Malaysia can’t simply choose not to follow one day. Why do we need international laws in the first place? The international arena is a difficult arena to navigate. While countries need each other to survive and exist, they still may want to do things their own way. That’s why some laws exist to allow this co-operation, and some laws exists so that we don’t end up blowing each other up to smithereens. And you can see this from the examples we showed earlier. There are some important laws that all countries must follow no matter what, and then there are those laws which allow some form escape. This method allows a country to be able to adapt both politically and internationally, which is what Malaysia did. When the local sentiments showed lack of support we didn’t sign ICERD, and we withdrew from the Rome Statute."
"If your husband or wife mysteriously disappears, can you claim their insurance, EPF, etc? The unexpected death of a husband or wife can be a harrowing experience for the surviving spouse. Whether on a personal level or in cases where it’s covered in the news, a lot of focus is placed on the emotional aspect – the anguish, sadness, sometimes anger that the surviving spouse is experiencing. However, a report by the Malaysian Insight on the disappearance of Pastor Koh and Amri Che Mat, allegedly victims of “enforced disappearance” by Bukit Aman, presented an interesting question from their wives: While this article isn’t the right (or sensitive) response to that particular question, it is an important one. Legally speaking, a person is considered a “widow” when their spouse is recognized as being deceased through a Death Certificate issued by the National Registration Department (NRD). A Death Certificate is only issued after a qualified medical examiner has examined the body and filled out the paperwork to prove that the body is, beyond a doubt, no longer living. So in situations such as the disappearances mentioned, incidents where people are swept away by floods, or even when planes disappear; you can kinda see where we’re getting at… a Death Certificate cannot be issued when there’s no body to examine. And if the person cannot be legally declared dead, it also means that their assets (properties and bank accounts) cannot be transferred over to their families, EPF and insurance money cannot be released, and wills cannot be executed – which can create huge financial burdens for the surviving family members. Of course, this isn’t a dead end… there is a solution to this, but it’s a pretty roundabout one. The person can be PRESUMED dead To establish what we mentioned in the introduction, the criteria that the presence of a body is absolutely necessary for a Death Certificate to be issued can be found in Section 18 of the Births and Deaths Registration Act 1957 which states (in part): Subject to the provisions of this Part, the death of every person dying in Malaysia and the cause thereof shall be registered by the Registrar in any registration area ... Provided that where a dead body is found [...] However, there is something called a presumption of death, which means that although there’s no body to prove the person has died, there are enough factors or indirect (circumstantial) evidence indicating there’s a high chance the person is no longer alive. As an example, if a tsunami hits a beach resort where Ali is staying (and hotel records prove it) and no one is able to find or contact Ali in the months or years after the tsunami, it wouldn’t be far off to presume that Ali had died and his body carried off by the waves. A presumption of death is done through the High Court, who will issue an order declaring that the person is legally presumed dead. So yes, there is a way around it, but it still won’t be as fast as you might think, because... The Court will presume the person is dead after... 7 years This 7-year wait comes from Section 108 of the Evidence Act 1950, which states: When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. What this means is that, if the people close to the missing person (ie, family, friends, employer) haven’t heard from them in 7 years, anyone who believes the person is still alive will have to provide proof of their claim. In other words, the court has “automatically” presumed the person to be dead. So unless the surviving family members decide to challenge this (by claiming the person is alive), they can apply for a declaration of death order from the court. However, if the family members don’t want to wait 7 years, they can attempt to convince the High Court that the person is dead. To make sense of this, we first have to look at Section 107 of the Evidence Act: When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. So in a way, this is the opposite of the earlier point, where the court assumes that the person is still alive and it’s up to the family members to prove that they aren’t. Needless to say, you’ll need to consult a lawyer about this as getting the court to agree is highly situational since proving someone is dead is just as hard as proving they’re still alive, if there’s no body or other forms of hard evidence as proof. That being said, there are incidents that also warrant the government to make such a declaration. For example, 10 months after the disappearance of MH370, the Malaysian government officially declared that all passengers and crew were presumed dead – which means that the courts will not question an application even if it’s filed under the 7-year period. Once the order has been obtained, there’s one thing left to do. After getting the order, you need to notify the NRD Essentially, the objective of obtaining the order is so that the NRD can update the status of the person from alive to presumed dead in their registry. This is kinda like a replacement to a Death Certificate in normal circumstances. The NRD’s website has a very detailed explanation of the process, but it can be summarized down to: Make sure your name appears in the court order Get an original copy of Form JPN.LM02 (Peninsula) or Form B (Sabah) or Form III (Sarawak) from the NRD office – copies or printed versions are not accepted Bring an original and copy of your IC (or other identification document) Bring the deceased person’s IC Submit the application and documents at the state capital NRD office, or at Putrajaya It’s best if you refer to the information on the NRD’s website, but bear in mind that there are different sections for Peninsula Malaysia | Sabah | Sarawak and slight differences in documentation requirements. Special thanks to Fahri Azzat for his help with this article"
"5 pengalaman masa kita membesar... yang boleh jadi penderaan kanak-kanak Berdasarkan statistik dari Jabatan Kebajikan Masyarakat Malaysia (JKM), 14 kes penderaan kanak-kanak dilaporkan berlaku setiap hari di Malaysia. Kalau korang rasa angka ni cukup besar, ia masih tak cukup lagi, sebabnya angka ni cuma untuk kes-kes yang dilaporkan dan kita semua percaya masih ada banyak kes yang tak dilaporkan. Secara umumnya, ada tiga undang-undang utama yang melindungi kanak-kanak dari penderaan iaitu – Kanun Keseksaan, Akta Kesalahan-Kesalahan Seksual Terhadap Kanak-Kanak 2017 dan Akta Kanak-Kanak 2001. Tapi masalahnya di sini, bila muncul je perkataan “Penderaan Kanak-Kanak”, ramai yang terbayangkan benda tu sebagai keganasan fizikal yang serius atau penderaan seksual. Tapi korang jangan terkejut kalau dapat tahu yang Akta Kanak-Kanak 2001 juga merangkumi beberapa hukuman dan praktik yang kita alami masa kecil dulu. Maknanya, apa yang mak ayah kita buat dulu… mungkin boleh dikategorikan sebagai penderaan kanak-kanak. Tapi sebelum korang nak salahkan mak ayah korang dengan tuduhan buat penderaan sebab diorang rotan korang dulu, undang-undang juga sebenarnya ambil kira faktor lain macam tahap keterukan dan kekerapan (berapa kali ia berlaku). Jadinya, jom kita tengok apa yang Akta Kanak-Kanak ni lindungi sebenarnya… 1. Pukul dan rotan anak (kena rotan… senang cerita) Kalau korang membesar kat Malaysia, peluang korang kena kena rotan dengan mak ayah dan cikgu tu dah jadi satu kewajiban. Dalam kebanyakan keluarga Asia, hukuman macam ni dilihat lebih efektif untuk didik anak-anak pasal disiplin. Tapi sebenarnya, jenis hukuman macam ni boleh dianggap sebagai penderaan kanak-kanak mengikut Seksyen 31 Akta Kanak-Kanak 2001. Seksyen 17(2)(a) Akta Kanak-Kanak juga menjelaskan apa tu penderaan fizikal: (17) “seseorang kanak-kanak – (2)(a) dicederakan dari segi fizikal jika ada kecederaan yang substansial dan boleh dilihat pada mana-mana bahagian tubuh kanak-kanak itu akibat pengenaan kekerasan atau agen yang bukan tidak sengaja kepada tubuh kanak-kanak itu yang didalilkan dengan, antara lain, laserasi, kontusi, lelasan, parut, patah atau kecederaan tulang yang lain, dislokasi, seliuh, pendarahan, pecah viskus, luka terbakar, melecur, hilang atau berubah kesedaran atau fungsi fisiologi atau gugur rambut atau gigi; Jadinya, kalau korang pukul anak korang dengan rotan atau hanger (atau apa-apa je) dan kesannya meninggalkan lebam, tanda dan parut ke atas badan, ini bermakna anak korang tadi dah didera berdasarkan Akta Kanak-Kanak. Kalau korang didakwa dan didapati bersalah, korang boleh didenda sampai RM50,000 dan/atau dipenjara 20 tahun. Contohnya macam kes – seorang ibu dipenjara 30 tahun dan didenda RM100,000 sebab selalu pukul anak perempuannya yang berumur 12 tahun dan anak lelakinya berumur 10 tahun dengan tangan dan objek-objek lain. 2. Tinggalkan anak sorang-sorang kat rumah dan dalam kereta Mesti ada masa yang korang rasa agak payah sikit nak bawa anak-anak korang ikut sekali ke mana je korang pergi. Jadinya, kadang-kadang tu ada masa korang terfikir nak tinggalkan diorang sorang – sorang dekat rumah atau dalam kereta bila korang kena buat sesuatu yang penting dan cepat. Sebenarnya, undang-undang tak tetapkan umur minima yang membolehkan seseorang kanak-kanak tu ditinggalkan sendirian di rumah. Tapi, kalau korang tinggalkan anak sendirian dalam keadaan yang membahayakan dan tanpa sebab munasabah, korang boleh dapat masalah berdasarkan Seksyen 33 Akta Kanak-Kanak. Sebabnya, seksyen ni ada peruntukan tentang “membiarkan kanak-kanak tinggal tanpa pengawasan”. Kalau didapati bersalah, korang boleh didenda sebanyak RM5,000 dan/atau dipenjara tak lebih 2 tahun. Ada satu insiden yang berlaku pada Oktober 2018, bila seorang wanita ni didakwa di bawah Seksyen 33 Akta Kanak-Kanak lepas dia tinggalkan anak saudaranya yang berusia 6 tahun sendirian di rumah selama dua jam tanpa pengawasan munasabah. 3. Mengabaikan anak korang Pertamanya, ini bukan ulangan point yang tadi. Nak jelaskan sikit pasal perbezaan antara kedua-dua point ni, point yang kedua tadi menjelaskan pasal kanak-kanak yang tak diawasi dalam tempoh masa yang tak lama, tapi yang ni pula adalah pasal kanak-kanak yang diabaikan (fizikal atau emosi) untuk jangka masa yang lama. Sebagai contoh, ada ibu bapa yang hidupnya cuma nak cari duit je untuk bagi kehidupan yang selesa kepada anak-anak diorang. Tapi dalam masa sama, terleka daripada luangkan masa dan bagi perhatian kepada anak-anak. Perkara macam ni boleh dianggap sebagai mengabaikan kanak-kanak. Maknanya di sini, pengabaian tu bukan hanya bermaksud tak bagi makan, tempat berteduh atau pakaian je – tapi juga termasuk tak bagi anak-anak sokongan emosi yang secukupnya. Kalau benda ini menyebabkan kanak-kanak tu mengalami masalah mental atau tingkah laku, macam anxiety atau kemurungan, ia boleh dikira sebagai penderaan kanak-kanak di bawah Seksyen 31 Akta Kanak-kanak: (31) (1) mana-mana orang, yang merupakan orang yang mempunyai pemeliharaan seseorang kanak-kanak— (a) yang menganiayai, mengabaikan, membuang atau mendedahkan kanak-kanak itu dengan cara yang mungkin akan menyebabkannya mengalami kecederaan fizikal atau emosi atau yang menyebabkan atau membenarkannya dianiayai, diabaikan, dibuang atau didedahkan sedemikian Kalau korang didapati bersalah, korang boleh didenda sehingga RM20,000, dan/atau dipenjara 20 tahun. 4. Mengancam dan memalukan anak-anak korang Memang jadi perkara biasa untuk korang marah atau menjerit kepada anak-anak. Dah pasti yang marah tu taklah menyalahi undang-undang. Bagaimanapun, kalau korang terlebih sangat, sampai memalukan atau mengancam diorang, sampai buatkan diorang alami masalah mental atau emosi yang serius itu boleh jadi kesalahan. Sebabnya, Akta Kanak-Kanak ada peruntukan untuk kesalahan penderaan emosi kanak-kanak. Walaupun akta ni tak secara khusus menyatakan bahawa penderaan lisan adalah sejenis penderaan kanak-kanak, tapi ia melarang seseorang tu daripada menyebabkan kanak-kanak mengalami gangguan emosi. Seksyen 17(2)(b): (17) “ kanak-kanak itu ialah – (2)(b) dicederakan dari segi emosi jika ada gangguan yang substansial dan boleh dilihat pada fungsi mental atau emosi kanak-kanak itu yang didalilkan dengan, antara lain, kecelaruan mental atau tingkah laku, termasuk keresahan, kemurungan, penyendirian, kelangsangan atau perkembangan lambat Setakat ni, tak ada kes macam ni dilaporkan di Malaysia (yang kitorang boleh cari) di mana ibu bapa dikenakan tindakan kerana penderaan lisan terhadap anak-anak. Tapi ada kes yang mana seorang bapa dah melakukan penderaan emosi kepada anak perempuannya dengan ugut untuk tamatkan hubungan bapa-anak atau halau dia keluar dari rumah, kalau anaknya tu tak ikut peraturannya. Bila anak perempuannya tu (sekarang dewasa) buat terapi sebab kemurungan dan keyakinan diri yang rendah, apa yang dikesan adalah masalah tu berpunca daripada penderaan emosi oleh ayahnya dulu. 5. Tak laporkan kes penderaan kanak-kanak Mungkin korang pernah hadapi situasi dekat pasar raya bila nampak ada ibu bapa yang pukul anak diorang, dan korang sendiri rasa macam keterlaluan dan di luar tatacara disiplin. Tapi, macam juga orang lain, korang cuma tengok je apa yang jadi, dan lepas tu…. tinggalkan je. Ada beberapa sebab kenapa korang buat macam tu, antaranya mungkin korang tak nak terlibat atau korang tak tahu yang ianya tu penderaan kanak-kanak (sekarang korang takde alasan lagi, sebab dah baca artikel ni). Sama ada korang patut buat laporan atau tak, itu bergantung kepada apa peranan korang dan jenis penderaan macam mana yang terlibat. Tapi di bawah Akta Kanak-Kanak, melaporkan kes yang disyaki melibatkan penderaan fizikal atau emosi adalah diwajibkan kalau korang adalah: Doktor Ahli keluarga Pengasuh kanak-kanak Kegagalan dari berbuat demikian boleh membuatkan korang didenda sehingga RM5,000 atau penjara tak lebih dari 2 tahun. Akan tetapi, kalau korang bukan dari yang di atas, tak ada kewajipan undang-undang untuk korang buat laporan. Bagaimanapun, korang dikehendaki buat laporan kalau ia melibatkan penderaan seksual, termasuk pengantunan kanak-kanak (child grooming) tak kiralah apa hubungan korang dengan mangsa. Sekalipun korang cuma orang awam yang berjalan kaki dan nampak perkara tu jadi, korang boleh didenda sehingga RM5,000 sebab tak melaporkannya. Jadi, macam mana nak buat laporan? Apa kita anggap sebagai ibu bapa yang baik, biasanya mempengaruhi bagaimana kita membesar, dan peluangnya cukup tinggi untuk kita mengalami sendiri sekurang-kurangnya satu dari empat point yang disenaraikan ni. Walaupun undang-undang dah jelas bagitahu yang memukul secara fizikal tu menyalahi undang-undang, tapi kenyataannya masih ramai ibu bapa yang pukul anak-anak diorang sebagai cara nak ""mendisiplinkan"" atau ""tunjuk rasa sayang”. Tapi perbezaan utama antara cara disiplinkan anak yang betul dan penderaan adalah tahap kesannya dan berapa kerap ia berlaku. Lebih mudah faham perbezaan tu dapat kita nampak antara kawan-kawan di sekolah, terdapat yang ada tanda rotan biasa dan ada juga yang lebam sampai warna ungu. Secara asasnya, masyarakat sepatutnya laporkan apa je kes penderaan kanak-kanak walaupun takde kewajiban undang-undang untuk melakukannya. Ini antara cara korang boleh buat aduan kalau tahu atau ternampak kes penderaan kanak-kanak. Melalui Talian Nur – 15999 Melalui hospital – Bawa kanak-kanak tu ke hospital berdekatan dan laporkannya di Jabatan Kecemasan/Jabatan Pesakit Luar kalau korang syak berlakunya kes penderaan. Melalui polis – Buat laporan polis terhadap suspek, atau hubungi 999"
"Boleh ke kita saman kerajaan, sebab tak tunaikan manifesto pilihan raya? Bila ada je pilihan raya, setiap parti politik (atau gabungan) selalunya akan buat manifesto iaitu senarai perkara yang diorang nak buat kalau diorang dipilih. Kalau korang tak pernah nampak manifesto pilihan raya sebelum ni, ni dia rujukan manifesto Pakatan Harapan dan Barisan Nasional pada PRU-14 lepas. Lepas Dr Mahathir buat ucapan pada Ogos 2018, ia menunjukkan yang kerajaan cuma capai 21 dari 60 janji manisfesto diorang dalam tempoh 100 hari (baca ucapan penuh di sini). Ramai orang yang nampak perkembangan ni sebagai kegagalan kerajaan melaksanakan janji dan sekaligus kerajaan telah memungkiri manifesto diorang. Walaupun ada perdebatan sama ada janji tu memang dah dilanggar atau dalam progres, tapi ada juga keadaan yang mana masyarakat sendiri minta supaya kerajaan langgar janji manifesto. Contohnya, bila diorang buat petisyen supaya Dr Mahathir ambil portfolio Menteri Pendidikan. Hakikatnya, semua orang tak dapat terima bila janji-janji manifesto tak ditunaikan, terutamanya bila janji-janji tu jadi antara sebab utama kenapa kita undi diorang ni. Jadi persoalannya sekarang, adakah kerajaan terikat secara undang-undang untuk ikut manifesto lepas diorang dipilih? [BACA LAGI - How do you sue the government if they make a mistake?] Jawapan ringkas: Tidak, manifesto tak terikat secara undang-undang Walaupun kita dah terbiasa dengan masyarakat yang anggap manifesto sebagai ‘janji’, ia sebenarnya lebih kepada kenyataan niat – sebab di sana tak ada sebarang kontrak antara parti politik dan masyarakat. Secara asasnya, kontrak terjadi apabila: Seseorang berjanji sesuatu dengan kepada orang lain. Orang lain itu menerima dan menawarkan janji lain sebagai balasan. Ia tidak boleh melibatkan hal-hal yang menyalahi undang-undang, dan mesti dikuatkuasakan dalam undang-undang. Perkara yang tak boleh dikuatkuasakan termasuk perkara yang terkandung dalam Seksyen 25-31 Akta Kontrak 1950, contohnya, terma dalam kontrak pekerjaan yang menyatakan bahawa seseorang tu tak boleh menyertai pihak pesaing selepas meninggalkan syarikat untuk jangka waktu tertentu. [BACA LAGI- Can Malaysian employers stop their ex-staff from joining a competitor? Tanpa perjanjian bersama yang disampaikan kepada kedua-dua belah pihak, dan niat untuk kedua-dua belah pihak terikat dengan undang-undang, di sana tak ada sebarang kontrak. Jadi, korang sebenarnya tak boleh saman kerajaan sebab tak tunaikan janji manifesto. Manifesto biasanya hanya diumumkan oleh parti politik - tidak ada upacara di mana penyokong akan datang untuk menandatanganinya dan berikrar akan mengundi diorang. Oleh itu, tanpa mendapatkan komplikasi undang-undang kontrak di sini, korang boleh anggap yang manifesto sebagai kewajipan moral sahaja. Ia mungkin buat korang kecewa, bila tahu yang ia cuma rancangan parti politik, yang mungkin akan berubah dari masa ke semasa kerana sebab tertentu. Jadi, ada ke jalan nak paksa kerajaan tunaikan janji diorang? Jawapannya sekali lagi tak boleh. Sebenarnya sebelum ni, ada je orang yang pernah cuba nak saman kerajaan sebab tak tunaikan janji manifesto, tapi kalah. Jadi di sini, kitorang ceritakan serba sedikit pasal kes tu, dan kenapa keputusannya macam tu. Salah satu kes yang ada kaitan dengan perkara ni adalah kes Kerajaan Negeri Selangor & Lain v Murtini bt Kasman & Lain-Lain (tak ada dalam online untuk tatapan umum). Ceritanya bermula bila beberapa orang wanita dari Persatuan Ibu Tunggal Selangor dah ambil keputusan untuk saman Kerajaan Negeri Selangor pada 2012. Diorang buat macam tu sebab Pakatan Rakyat masa tu tak tunaikan janji manifesto diorang pada 2008 untuk beri elaun bulanan kepada setiap ibu tunggul di Selangor. Tuntutan diorang ni didasarkan pada ""jangkaan yang sah"" atau “legitimate expectation” bahawa diorang akan terima elaun daripada kerajaan negeri kerana manifesto tu. Tapi lepas tu, mahkamah berpandangan yang kerajaan tak terikat secara sah untuk ikut manifesto 100%, kerana: Manifesto tu dijanjikan oleh parti politik sebelum diorang dipilih untuk tarik sokongan, yang mana berbeza dari janji-janji formal atau kenyataan yang dilakukan oleh kerajaan. Parti politik dan kerajaaan adalah dua badan yang berasingan. Kalau korang rasa tak masuk akal yang parti politik tak sama dengan kerajaan, korang sebenarnya tak berseorangan. Kerajaan tak wujud sampai masa diorang dibentuk selepas pilihanraya, dan sementara parti politik membuat janji, diorang hanya dapat kuasa untuk penuhi janji-janji tu bila diorang menjadi pemerintah. [BACA LAGI - Who runs Malaysia after Parliament is dissolved for an election?] Pada masa tu, ahli-ahli kerajaan tak akan 100% datang dari parti politik yang mula-mula merancang untuk bekerjasama; ahli-ahli ni akan berbeza, gabungan dan pakatan terbentuk mungkin juga boleh berpecah. Jadinya, agak mustahil untuk kerajaan yang dibentuk akan bersetuju dengan setiap janji manifesto. Dan tu belum lagi kita pertimbangkan keadaan ekonomi, nilai-nilai sosial, dan pandangan awam yang semuanya boleh berubah pada setiap masa janji akan dilaksanakan, dan maklumat baru yang mungkin akan muncul. Sebagai contoh, kalau korang sebagai kerajaan tiba-tiba dapat tahu negara ada hutang bertimbun, korang mungkin kena timbang semula peruntukan belanjawan yang korang dah janjikan, sebabnya korang tak ada lagi duit sebanyak yang mana korang fikir boleh belanjakan. Tak ada yang sokong setiap janji yang dibuat oleh parti politik Hakim dalam kes Kerajaan Negeri Selangor tadi merujuk kepada satu kes Inggeris – Bromley London Borough Council v Greater London Council and another. Hakim Inggeris dalam kes berkenaan, membuat keputusan yang manifesto tak sepatutnya diikut sampai macam kitab suci. Bila sesuatu parti tu dapat kuasa, diorang patut mempertimbangkan janji-janji diorang berdasarkan merit sekali lagi, sama ada ia praktikal dan adil untuk dilaksanakan, dan sama ada akan ada kelemahan besar dengan berbuat demikian. Mengikut contoh yang ada dalam kes tu, ia boleh menjadi idea yang tak baik untuk menyediakan subsidi pengangkutan seperti yang dijanjikan dalam manifesto, kalau kerajaan pula terpaksa menaikkan cukai untuk membiayai subsidi. Perkara lain yang berbangkit adalah, rakyat mengundi parti secara keseluruhan dan bukannya keseluruhan manifesto. Korang mungkin ada tak bersetuju dengan satu dua janji manifesto, tapi tetap menyokong parti berkenaan. Korang mungkin terpengaruh dengan beberapa janji, tapi orang lain juga terpengaruh dengan beberapa janji yang lain. Sesetengah orang pula, mungkin tak terpengaruh sama sekali. Apa yang rakyat Malaysia boleh buat dengan janji yang tak tertunai ni? Hurmm, korang sentiasa boleh hubungi Ahli Parlimen korang atau undi parti lain dalam pilihan raya akan datang. Tapi kalau undi parti lain pun masalahnya tetap sama, tak ada jaminan yang diorang akan tunai janji. Lebih-lebih lagi kalau korang tak ada banyak pilihan nak pilih mana yang lebih baik."
"Can two companies register similar names in Malaysia? So you decided to open up a cafe in your local town. You found the perfect location in a busy area, hired a couple of baristas and of course – you gave a nice fancy name for your restaurant – StarParks. Business is good for about 6 months and you have at least 10 hipsters coming in to get their lattes before class. Then one day, you see a restaurant right across the street with a similar name to your cafe! But this one is called StarCarts! Outraged, you decide to file a complaint to the Suruhanjaya Syarikat Malaysia (SSM) that someone has copied your company name. But to your shock, because of a mistake made by the Registrar, you get a letter back from SSM asking YOU to change your company name. StarCarts has also existed even before your company came up! So it appears as if you ‘copied’ their branding and company name and you can now be potentially sued. Since opening up a business is pretty common now and is fast-growing in cities – this article will focus on one of the first things you should look into when it comes to setting up your own business in Malaysia...which is a name for your new venture. But first, let’s clarify a few things... Are all businesses a company? For starters, companies and businesses are two different things. A company is a type of business, but not all businesses can become companies. For instance, sole proprietorship and partnerships (your kedai runcit or burger stalls) are governed by the Registrar of Businesses. Companies and Limited liability partnerships (ie; SDN BHD or BHD) are governed by the Registrar of Companies. You can also differentiate a company from other businesses as it is a separate legal entity – Which means, a company can sue and can be sued. Also, take note that any type of business unit will still be controlled by the Suruhanjaya Syarikat Malaysia (SSM) in compliance with the Companies Act 2016. So, we’ll be focusing on companies in this article. If you want to know more on the characteristics of the different businesses, read the article below: [READ MORE: Which Malaysian business type should you choose for your company?] So before you decide to register your company... Check if the name you choose is available You can’t simply think of giving your company a name just because you like it. If the name sounds similar to another existing company, your company can be sued for this. A few years ago, a Malaysian cosmetics company called Sefarra was said to have copied the name of the an international cosmetic chain, Sephora. (To those of you who don’t know Sephora, the company sells ‘atas’ make up and body products.) So whether or not Sefarra has done something wrong or has not complied with the rules in the SSM, this would depend on the rules stated in the law under the Companies Act 2016. Section 26 of the Act states that the name of the company will only be approved if: The name available is not undesirable or unacceptable. – Which means, you can’t pick a name that will most likely offend anyone or any part of the community. The name cannot be identical/similar to an existing company. – So our Malaysian version of Sephora may face trouble with SSM here. A name that the minister has directed the Registrar of Companies not to accept for registration. – You can’t use names that are connected with the Royal families or international organizations such as “Asean” or “Nato”. The name you choose for your company should generally be complied with the Act, but the ultimate decision shall be made by the Registrar of Companies, ROC for short. The Registrar has the power to decide and determine if the name referred to the criterias to name a company is unacceptable or similar to the already existing company. So this brings us to… Who has to change the company name first? Well, the answer is pretty straightforward. The Company that would most likely have to change its name would be the one who came in second...after the existing company. There is also a possibility where if you copy a brand name or logo, you may be infringing the Trademarks Act 1976 and legal action can be taken against you. So, if Sefarra came first, Sephora would have to change the company name, and vice versa. This is why it’s always best to apply to the Registrar first to check on the availability of the name as stated under Section 27(2) of the Companies Act 2016: “(2) If the Registrar is satisfied that the proposed name is a name which is not subject to subsection 26(1), the Registrar shall confirm the availability of the proposed name.” Once the Registrar is satisfied that the proposed name does not go against any of the rules stated in the Act, your fancy company name is good to go. However, there are instances where the Registrar of Companies may have overlooked the identical/similar names, and the companies would have already been operating in Malaysia for many years. Would it be possible to sue the Registar then? Based on the Act, there aren’t any grounds to take legal action against the Registrar, but either party can now seek to either change the company name and then later on, sue for the losses incurred. So now, there are two choices when it comes to changing a name if the SSM or the other existing company thinks there is a similarity or the name is going against what is stated in the law. And, you can either you do it voluntarily or...you’ll be forced to change it. 1. Voluntary change of name. This is stated under Section 28 of the Act, whereby the company can change it’s name on its own accord. The procedure is rather simple, and it only requires three things. Step 1: Make an application for the change of name in the prescribed form from the Registrar of Companies. Step 2: Call for a General Meeting and pass a ‘special resolution’ with the other members once it has been approved by the Registrar. Step 3: Lodge all documents that will be required to be given to the Registrar within 30 days of the special resolution. The prescribed fee for a voluntary change of name is RM100.00 and once the Registrar is satisfied that the new name complies with the Act, the name shall be registered to replace the former company name. Also, a change of name does not mean the company can avoid all legal obligations that it previously had. For example, ABC SDN BHD changed its name to XYZ SDN BHD recently. Although the name of the company is now different, all legal proceedings will still be continued as per normal. If any party goes against the requirements of the Section is said to have commited an offence, and shall be liable to a fine not exceeding RM50,000.00. 2. Compulsory change of name. The only time the Registrar will force a company to change its name is when it does not match the requirements listed in the Act. Section 29 of the Companies Act 2016 states that if the Registrar believes that the name of the company should not have been registered in the first place, the Registrar will send a notice to the Company to change it’s name within 60 days or longer if the Registrar deems fit. The court will also intervene if a company comes to court seeking a remedy if another company has copied off it’s name and brand establishment. The existing company can then sue for the losses suffered from the other company that has caused the existing company to make huge losses. However, this is not always the case. A Federal Court decision favoured a local restaurant named McCurry when McDonald’s Malaysia sued them for trademark infringement. Therefore, the courts still have the last say when it comes to matters pertaining to this. With all that said, maybe it’s always best to... Check to see if your company name complies with ROC rules Some names might sound catchy or you might think it would be an advantage to improve your business if the name of your company is similar to an existing company. However, there are a lot of legal repercussions that can be taken if you choose to use a common/popular brand name. It only costs RM50.00 to check and reserve a name with the ROC. Starting a company may not be all that easy. It requires a certain amount of knowledge when it comes to legal matters and procedures. In any case, its always best to reach out to professional advisers ie; lawyer, company secretary, auditor, tax consultant, etc; before making major decisions to avoid unexpected problems and losses."
"Macam mana sekumpulan 'paintballers' ni ubah undang -undang dengan bawa PDRM ke mahkamah Bila kerajaan memperkenalkan atau gubal sesuatu undang-undang, selalunya akan ada pihak atau komuniti yang secara tak langsung akan terjejas, atau tak setuju dengannya. Kita selalunya akan nampak rasa tak setuju ni disuarakan di media sosial, yang lepas tu mesti dapat tarik banyak komen, like dan share… tapi jarang sekali perubahan tu berlaku. Walaupun ada beberapa undang-undang yang diubah kerana lobi awam, macam kurangnya undang-undang terhadap aktiviti child grooming (Akta Kesalahan-Kesalahan Seksual terhadap Kanak-Kanak), tapi masih ada beberapa isu yang mungkin tak cukup orang terlibat untuk berjaya melobi perubahan. Ini bermakna, satu-satunya pilihan yang korang ada adalah bertindak menyaman kerajaan di mahkamah untuk buatkan diorang ubah undang-undang tersebut. Disebabkan menyaman seseorang (lebih kurang kerajaan) melibatkan banyak usaha, masa dan kos; korang kenalah ada semangat dedikasi yang tinggi bila pilih cara ni. Jadi, kitorang ada berborak dengan satu kumpulan yang berjaya saman kerajaan dan ubah undang-undang – tapi diorang ni bukanlah NGO atau kumpulan hak asasi manusia…. tapi merupakan sebuah kumpulan pemain paintball. Semuanya bermula apabila… Senapang paintball diharamkan pada 2013 Pada masa dulu, orang yang buat penyelidikan dalam hutan perlukan cara yang cepat dan berkesan untuk menandakan pokok – pokok dengan cat. Jadi, diorang perkenalkan alat yang bentuknya seakan-akan macam senapang untuk membolehkan diorang tembak paintball untuk tujuan tu. Tapi, benda tu dipanggil sebagai paintball marker dan bukan senapang paintball. Dan bila masa berlalu, ada pula orang yang dapat idea, kalau paintball ni boleh digunakan untuk aktiviti menembak sesama sendiri dalam sukan. Maka lahirlah sukan paintball. Idea sukan ni tak ambil masa lama untuk sampai ke Malaysia, dan Malaysia mula menjadi hab paintball terbesar di rantau ini. Menurut Tunku Alizan (Timbalan Presiden Persekutuan Paintball Malaysia) yang kitorang temubual, dia mengatakan: “Pra tahun 2013, industri paintball di Malaysia berkembang pesat. Terdapat banyak taman paintball di serata Malaysia. Orang ramai dengan mudah boleh masuk dan bermain dengan rakan-rakan mereka.” – Tunku Alizan, Timbalan Presiden Persekutuan Paintball Malaysia, katanya kepada ASKLEGAL Walaupun jarang sesuatu yang baik tu akan berakhir, tapi nampaknya ia berlaku kepada komuniti paintball di Malaysia. Pada sekitar November 2013, PDRM dah buat keputusan untuk mengklasifikasikan paintball marker sebagai senjata api, dengan meletakkannya di bawah Akta Senjata 1960. Hal ni bermakna, undang-undang akan menganggap paintball marker tak ada beza dengan pistol, dan itu juga bermaksud: Pemain paintball tak boleh memiliki paintball marker. Kalau diorang nak juga , diorang kena dapatkan lesen senjata api – sama seperti memiliki senjata api normal (yang tak mudah untuk diperolehi). Taman paintball pun kena mohon lesen untuk simpan paintball marker. Diorang mesti kena ada gudang senjata untuk simpanan senjata ni, mirip seperti gudang senjata di pangkalan tentera dan balai polis. Untuk sesiapa yang dah beli dan ada paintball marker sebelum pengumuman PDRM, diorang dikehendaki menyerahkan alat ni ke balai polis terdekat. Korang mesti terfikir yang diorang ni boleh je mohon lesen untuk terus simpan paintball marker tu kan? Tapi, benda ni bukanlah perkara mudah, sebab lesen tu sebenarnya susah nak dapat. Tunku Alizan beritahu kitorang, PDRM buatkan pemain paintball lebih susah untuk dapatkan lesen. Malah, bila kitorang buat kaji selidik, kitorang dapati yang PDRM ada kata yang diorang tak akan layan permohonan lesen untuk individu. [BACA LAGI: Here's how to legally own a firearm in Malaysia] Kalau korang rasa pemilik paintball marker dapat banyak masalah, pemilik perniagaan paintball lagi teruk. Sebabnya, diorang tak dapat beroperasi tanpa lesen, dan syarat perlesenan tu pula cukup ketat; sebagai contoh, syarikat tu mesti ada modal berbayar (paid-up capital) RM400,000. Kalau kita guna analogi bola sepak pula, benda ni tak ada beza dengan buka pusat futsal dan tiba-tiba kita dapat tahu yang bola futsal tu haram dan perniagaan mesti ada lesan untuk perkara itu. Ini juga bermakna, secara difinisinya tak ada sesiapa dibenarkan masuk ke taman paintball dan bermain paintball menggunakan tapak itu. Sebabnya, menurut Tunku Alizan, sementara korang kena memiliki lesen senjata untuk memiliki sesuatu senjata api, korang juga kena ada permit bawa & guna untuk menggunakan senjata api. Jadi kepada yang masuk taman paintball untuk main paintball, diorang perlukan permit membawa dan menggunakannya untuk menyewa paintball marker dari taman. Tindakan daripada PDRM ni secara terang tak diterima baik oleh komuniti paintball, terutamanya bila perniagaan diorang yang terhenti sedikit demi sedikit. Tunku Aliza dan pemain paintball yang lain nampaknya tak faham sebab kenapa paintball marker ni dianggap sebagai senjata api - terutamanya bila ia tidak membawa maut sama sekali. “Paintball marker tidak membawa maut. Tidak ada rekod paintball marker pernah menyebabkan kematian” – Tunku Alizan, katanya kepada ASKLEGAL Bagaimanapun, kebanyakan pemain paintball tetap mematuhi undang-undang walaupun tak bersetuju, dan sedar yang diorang ada kekuatan dengan membentuk Persekutuan Paintball Malaysia (MPF). Diorang juga aktif berhubung dengan PDRM dan Kementerian Dalam Negeri untuk mengubah kedudukan undang-undang paintball marker ni. Apa yang mengejutkan, kementerian bersetuju dengan diorang dan kementerian juga kata yang paintball marker tak sepatutnya dianggap sebagai senjata api. Tapi malangnya, berita baik tu berakhir macam tu je, bila undang-undang tu tetap kekal sama dan PDRM masih ada kuasa untuk rampas dan menahan sesiapa yang mempunyai paintball marker secara haram. Dari tahun 2013 sampai 2019, terdapat beberapa laporan orang yang ditangkap kerana jenayah ni, dan ada juga taman paintball yang diserbu dan peralatan diorang pula disita oleh PDRM. Tapi semuanya berubah, bila terjadinya satu peristiwa... Polis serbu sebuah taman paintball di Cyberjaya Pada sekitar April 2018, PDRM dah buat serbuan ke sebuah taman paintball yang dimiliki oleh EAS. PDRM dah menemui beberapa paintball marker dalam premis tu dan bertindak merampasnya. Tapi apa yang membuatkan serbuan ni penting adalah bila EAS kemudiannya ambil keputusan untuk bawa PDRM ke mahkamah dan bukannya biarkan benda tu berlaku macam tu je. Perkara pertama yang diorang buat adalah cari peguam yang sanggup ambil kes ni. Jadi, Tunku Alizan hubungkan EAS dengan seorang peguam bernama Art Harun, yang namanya mungkin korang kenal. Tapi Art tak ambil kes ni sorang-sorang – dan dia bentuk satu pasukan. Dia kemudiannya dekati dua peguam lain – bernama Fahri Azzat dan Shanmuga yang dia anggap akan berkongsi alasannya untuk ambil kes tu. “Kami ambil kes itu kerana kami (Shanmuga dan saya) diminta oleh Art Harun (Pengerusi SPR sekarang) ketika dia masih dalam praktik dan kami fikir isu itu menarik.” – Fahri Azzat, katanya kepada ASKLEGAL Tapi ada halangan lain yang pasukan ni hadapi… Art Harun lepas tu dilantik pula jadi pengerusi Suruhanjaya Pilihan Raya dan terpaksa berhenti dari melakukan amalan undang-undang. Bagaimanapun, Fahri dan Shanmuga ambil keputusan untuk teruskan juga kes dan diorang tetap mahu tolong Tunku Alizan. Eh kitorang lupa nak beritahu, sebenarnya Tunku Alizan ni bukan je Timbalan Presiden Persekutuan Paintball Malaysia, tapi dia juga adalah seorang peguam. Walaupun dia bukan sebahagian daripada pasukan perundangan dengan Fahri dan Shanmuga, dia dah berkhidmat sebagai penghubung antara undang-undang dan paintball. Ini caranya macam mana diorang menang kes Jadi, ini adalah hujah-hujan yang Fahri beritahu kitorang yang dia gunakan dalam mahkamah: Senapang paintball tak sepatutnya diletakkan di bawah Akta Senjata 1960 kerana ia tak mematikan – Akta Senjata hanya tertakluk pada senjata yang membawa maut. Akta Senjata telah digubal pada tahun 1960-an supaya senjata api boleh dikawal oleh kerajaan. Disebabkan senapang paintball hanya diperkenalkan pada sekitar tahun 1970-an, Akta Senjata tidak mungkin melibatkan senapang paintball. Senapang paintball bukanlah senjata tiruan (objek yang nampak macam senjata betul, tapi tak boleh menembak peluru), sebab ia kelihatan berbeza dari senjata sebenar. Dengan menggunakan hujah-hujah ini dan mungkin beberapa yang lain, akhirnya mahkamah bersetuju dengan diorang. Mahkamah Tinggi kemudiannya mengisytiharkan yang paintball marker tak sepatutnya dianggap sebagai senjata api dan juga mengarahkan PDRM untuk pulangkan balik kesemua paintball marker yang dirampas kepada EAS. Secara ringkasnya, kes ni berjaya mentakrifkan semula apa itu “senjata” dalam undang-undang, dan paintball marker tak lagi dianggap sebagai “senjata”. Lebih penting lagi, diorang berjaya ubah undang-undang yang dah berkuat kuasa selama 6 tahun. Orang biasa pun boleh ubah undang-undang… dengan usaha Ramai daripada kita yang beranggapan bahawa undang-undang hanya boleh diubah oleh ahli politik atau di parlimen je. Tapi macam mana kalau kita diberitahu yang orang biasa pun boleh ubah undang-undang? Antara contoh yang terbaru adalah tort gangguan seksual, yang mana diperkenalkan apabila seorang lelaki bertindak menyaman seorang wanita yang menuduhnya melakukan ganggguan seksual (dan kalah). Begitu juga dengan membenarkan palang sekuriti di pintu masuk kawasan perumahan, yang diperkenalkan setelah seorang lelaki bertindak menyaman persatuan penduduk perumahannya (dan kalah). Dan sekarang, pasal membenarkan penggunaan paintball marker, bila sebuah syarikat menyaman polis dan menang. [BACA LAGI: Malaysians can now sue for sexual harassment thanks to a case involving...coconuts?] [BACA LAGI: Can neighbourhood guards block roads in Malaysia?] Jadi, dengan risiko yang sentiasa akan ada, korang boleh mengubah undang-undang selagi mana korang sanggup untuk berkorban masa, tenaga dan wang untuk melakukannya… dan terima sebarang kemungkinan, yang tak semestinya seperti mana yang korang harapkan."
"Ambik Kau was an April Fool prank to copy content from other sites - which also got copied Recently, you might’ve seen an article about Malaysian women’s boobs being 2nd smallest in the world, or perhaps a corpse found in a dam, or even 10 reasons why Malaysians no longer believe in Mahathir? Some are real, but we can’t tell you which ones are, because we didn’t really check. We just copied them off other sites onto a WordPress site and domain we set up in about 4 hours called AmbikKau.com WHY DID Cilisos/Soscili/RojakDaily/SoyaCincau/Asklegal DO THIS!? So, sites like ours, Rojak Daily, Soya Cincau and AskLegal have long been known in Malaysia for original content. We don’t repurpose, we don’t copy, and we sure as heck don’t make up stuff. And to be honest, there aren’t that many of us around anymore – sites that don’t just repurpose content or news. Our original articles and videos have been shared, and copied so many times that we can’t even begin to count them, so we thought we’d send a big… On top of that, it hurts each time one of our well-researched articles loses out to “Survey about Malaysian boobs”. So we wanted to show people how simple it can be to build traffic, and how it means little if you don’t particularly like the site you read it on. Also, it was an experiment for us, to tell our writers for the first time in their professional lives…. “Hey, y’know all that stuff we told you about being a good writer? Throw that out the window for 5 days” – Asklegal Editor So one of the first things we learnt in this experiment was… It took us 10 minutes to write each article. Some people who saw the prank commented how much effort we put into this year’s prank. Wellllll…. Typically an article on CILISOS, SoyaCincau or AskLegal would take 2-5 days to write. Why? Well first we need to see what new information we can unearth, then we verify our sources, and write something that can entertain, while hopefully giving you some insight or education into the topic at hand. So for AmbikKau, we just dropped all that nonsense. This was what AmbikKau looked like after being live for 4 days on April 1st Yep. Most of these articles were copied the same way these sites have copied from us before. E.g. Malaysia Today – Copy the entire text, delete the last paragraph and put a link saying “Read the rest of the article on Malaysia Today!” The Coverage – Small rewrites, basically just changing some lines, adding some jokes, and stopping ourselves from correcting the grammatical errors. MALAYSIA CHRONICLE – Take our content, make the TITLE SOMETHING SENSATIONAL AND CAPS THE SH** OUT OF IT! With these rules (and a few more from less frequent offenders), each of our publications wrote 15 articles (3 articles per writer, 45 mins of their time), which initially resulted in 60 articles per day on Ambik Kau. So after one day, the site already looked like it had been around for ages! In 7 days, we generated more than 200 articles,and in our writers’ spare time. Imagine if people were doing this in their full time! “OMG Boss, I love writing for Ambik Kau! It’s so easy and liberating!” – ASKLEGAL writer who asked to remain anonymous because Arjun likes his privacy. To be honest, our aforementioned SoyaCincau.com AI Bot, CV Control, could’ve done pretty well. If it was real 😉 And one of those articles actually went viral, and was then “covered” by other sites. So stay with us… this is gonna get confusing. Amazingly, this post about Malaysian chesticles was the first post we ever uploaded to AmbikKau. We found this piece of news on The Coverage, which they took from a “study” done overseas. It goes viral, generating 23,000 views in 24 hours, with thousands of shares. And then, the inevitable happens. 10 hours later… World of Buzz mysteriously launches this old piece of news as well. It goes viral for them too – 13.6k shares (you might say they stepped on our booby trap)! The MalayMail covered it too! But then some readers pointed out that the article is based on a fake piece of research (which we knew, cos y’know… we check our sources… usually), so they published this… Without removing the original article (although to be fair, they put a one-line edit to tell you it’s a hoax). Sadly, this one doesn’t go viral (196 shares only), which is also illustrative of the problem with social news these days – the truth isn’t quite as attractive. So we also copied their correction (which used our featured image, so we used their feature image, boom!) and published it as our own, cos why not? Ironically, World Of Buzz has a plugin that prevents you from copying their articles – no worries though… we just saved the webpage as a PDF, open in Google Docs, and voila! WHY MALAYSIAN SITES DO DIS!? Actually, out of the 200 articles we published, only 9 of them got more than 1000 views. But hey, if it only takes 10 minutes to write an article, you can keep trying until you hit gold… What’s gold? Well according to science, our brains are wired to love sensationalism. And it’s not a new thing. “A psychological study from 2003 analyzed front-page news stories dating from the 1700s all the way on up to 2001. The study found that regardless of the time period, stories about death, injury, robberies and murder dominated the front-page headlines.” – Why Sensationalism Sells, ScienceLine.org Better yet if you don’t have the limitations of good journalism. To be honest, we were surprised how successful this little experiment came off. In 5 days, we actually Got 50,000 page views with minimal effort Reached 134,000 people with our Facebook page, more than half of whom interacted or clicked on our links. Received an advertising enquiry Received a complaint from an NGO about the boob article That advertiser one surprised us too. But maybe it shouldn’t have. Many advertisers do look at the overall pageviews of a website, even though that has little to do with the actual traction the brand can get. Cos these days, we just click on anything on social media, and share it. So if a site set up in 4 hours can get 50k views in 5 days, how long would it take to develop an ‘audience’ of millions? So what can we do about this? Well the responsibility lies with… YOU! You need to start thinking about what content you’re sharing, and clicking on, and also caring where it came from – some sources are better than others. And kudos to our readers, this was one April Fool’s prank they saw straight through (a lot of our other ones got em though) And we’re actually super-touched that they did. Because they hold us to a higher standard. They know we wouldn’t go down that road (except for laughs and commentary), and to be honest, we felt really really crappy publishing some of these articles (almost all of us anyway – looking at you, Arjun). Because that’s why our 5 sites were created. To keep you informed, to create conversations that hold us together rather than splitting us apart, and to find the closest thing to the truth. Even if that means lying to you… once a year. Happy April Fools UGAIZ!"
"Malaysia has a new sex offenders registry, here's how you can use it It’s not really easy to tell if someone has a criminal record in Malaysia. Take for example someone who went to jail for laundering money, he could probably go through the rest of his life without people knowing that he was former convict. Even if he’s applying for a job, unless the application form says so, he doesn’t need to declare he’s been to jail. Now all that may change for….convicted child sex offenders. Deputy Minister Hannah Yeoh recently announced that the Ministry of Women, Community and Family Development has come up with a sex offender registry which will be up and running on April 1st. This concept of a sex offender registry maybe new to some, but it’s basically a list containing the names of sexual offenders (the list may also contain their locations as well as the the exact crime they committed). This sort of system isn’t new and the western world has had such systems in place already for years. The need for a sex offender registry wasn’t new in Malaysia. In fact, there were calls for this system years ago when serial-rapist Selva Kumar returned back to Malaysia from Canada. So we don’t know how our new sex offender registry is gonna work compared to other countries, but before we get there... Here’s how the Malaysian system works Despite the fact that the system is 2 days old only, there’s already some information available about the registry. According to reports, the list already contains the names of 3,000 child sex offenders, and the list is updated from 2017 to February 2019. In addition to that, Deputy Minister Hannah Yeoh added that this list will be available to people running organisations where they’d have to hire employees that work with children on a daily basis. So if let’s say a school is hiring a new teacher or even a canteen cook, the employer can use the system to check if the person has a sex crime record. “Those who want to send their children to daycares, or schools looking to hire new teachers, simply have to provide the individual’s IC number to the Social Welfare Department.” – Deputy Minister Hannah Yeoh reported by The Malay Mail And although the system is technically not available to the general public, parents can use the system if they have a valid reason – like hiring a new babysitter. So if you’re a principal looking to hire a new history teacher or a parent looking to hire a babysitter, here’s how to use the registry: Get the IC of the person you’d like to check Head to the state/district Social Welfare Department and give the IC number there\ If you visit a state Social Welfare Department, you’d get results instantly. If it’s a district one, you’d have to wait up to 5 working days You’d also have to explain why you’re performing the check If they accept your explanation, they’d give you the result If the person has not committed a sexual crime against a child, you’d get a letter stating “no records”. If there is a record, the letter will say “further checks by JKM” Aside from having to go to JKM the process is pretty easy and straightforward. But why not just put the system online? In the US anyone can check online In 1994, when a 7 year old girl named Megan Kanka was raped and murdered by a neighbour who had a previous sex crime record. As a result of her death, her parents believed that it could’ve been avoided had they known that there was a sexual offender in the vicinity Believing that there’s some merit for parents to know if there are sex offenders around their children, the federal government passed Megan’s law. This law required every state to have a sex offender registry made available to the general public. So basically, whenever a sexual offender moves into an area the local state authorities must notify the neighbourhood. And while Megan’s law dictates that the state must let their locals know there’s a sex offender living nearby, each state gets to choose how much info is accessible to the public (for example, some states may not reveal the exact crime that was committed). As a result of Megan’s Law, concerned parents have access to two types of systems. The first is run by the Department Of Justice called NSOPW, and there are a few privately run registries available like familywatchdog. The systems are fairly straightforward and works something like this: Visit the website you prefer Key in the name and/or address of the area you want to check The website will show whether the particular person has a criminal record or whether there are sex offenders in your area There’s no perfect system If we were to compare the US’ and Malaysia’s sex offender registry, the US clearly wins in terms of convenience. In the US, all you need to do if you wanna use the system is get on your phone/laptop. You don’t need to have a reason to use the system and you can do it in the comfort of your own home. In Malaysia, you’d have to find the Social Welfare Department and provide reasons for why you wanna conduct a check – which can be quite a hassle. But the so called convenient American system isn’t all rainbows and butterflies, it has its fair share of criticisms. While the US sex offender registry may be open and accessible, it comes along with some concerns of privacy. In other words, having such an open system could infringe the privacy of the former sex offender. In such cases, the matter isn’t just for the sake of privacy but to allow the offender to continue living his life after serving his sentence. But at the same time there are those who argued back saying the safety rights of residents should trump a sex offender’s right to privacy. Whatever side of the argument you’re on, you’d have to know that the Malaysian sex offender registry isn’t one of a kind. In fact, most countries which has a sex offenders registry limits the public’s access to the system. For example Canada and South Africa has a sex offender registry that’s only accessible by enforcement authorities and sometimes institutions that work with children. So for now, perhaps we can give the new Malaysian sex offender registry a chance. If there are drawbacks, it’s best to hope that the government makes changes to it."
"Introducing Ambikkau - Malaysia's first AI-powered social site by Asklegal, Cilisos, RojakDaily & SoyaCincau  KUALA LUMPUR, 1ST APRIL 2019 – The shift in Malaysian online media consumption and advertiser priorities towards websites that focus on fast viral content has resulted in an unexpected partnership – online portals RojakDaily, Cilisos, SoyaCincau, Soscili, and Asklegal are excited to announce the launch of AMBIKKAU.COM, a new social content aggregator news site. In just three days after a soft launch on 28th March 2019, the site has already garnered 40,000 pageviews, as a dual-language social news site for Malaysians to get their daily fill of: Lifestyle news current trends tech news & insights sociopolitical insights legal info & education A few short years ago, Cilisos, SoyaCincau, RojakDaily and AskLegal were trailblazers in the “new wave” of online media, gaining a following for their unique approaches to content in their respective areas of focus. However, in the past year, they’ve noticed a trend of traffic moving towards fast, sensationalist articles. Advertisers have followed suit, looking for ever more highly trafficked sites, to post their ads to the widest audiences. AmbikKau was idealized as a solution to the problems above, leveraging on our existing strengths with a focus on fast turnaround and guaranteed virality. In 3 days since launch, the site has already garnered 40,000 views. Existing writers are being used from each parent site have been trained to focus on speed and efficiency in writing – maximizing reach at any cost. Soon though, AmbikKau might not even need writers, with SoyaCincau’s proprietary AI-based writing technology, CV Control, which finds content online, and instantly writes an article with minimal human intervention. SoyaCincau Editor-in-Chief Amin Ashaari explains how it all came about, “It’s a numbers game, high traffic wins quality. And clients are ok with that too, all they want is numbers, so we’re seeing if CV Control can generate results faster than any real journalist.” The name Ambik Kau was coined by Cilisos Editor-in-Chief, Chak Onn Lau who describes the inspiration as, “We wanted our readers back, so we have to ambik your attention, ambik your time, ambik your loyalty, and most importantly, we have to ambik kau.” Soscili’s editor, Iqbal Fathki, echoed his sentiments, saying ““Tak ingat senang camne. Entah ngapa kerja cam bangang sebelum ni nak tulis panjang panjang” UiHua Cheah, Editor of Asklegal.my, emphasizes the importance of adapting to change: “Cockroaches and dinosaurs once existed together, but only one survived extinction through adaptation and evolution. If we hold on to traditional definitions of ‘fluff content’ and ‘journalism’, what we’re really asking ourselves is…do we want to be a dinosaur, or a cockroach?” RojakDaily head Amresh Jessey sees Ambik Kau as the new future of Malaysian media, “It’s like Captain Planet. In the darkest hour, five separate elements that combine to create something new, powerful, and exciting. But you always gotta have Heart.” For more of the coverage that sets the world abuzz, visit ambikkau.com or at facebook.com/ambik99"
"If your ex leaks your nudes, can you sue them under Malaysian law? As Malaysians, public nudity—or nudity at all for that matter is a taboo and it isn’t something we encourage in our society. Since most of us are aware that there can be legal repercussions taken against someone who decides to ‘bare it all’, let’s briefly go through the difference between public nudity and private nudity first. Public nudity is best explained with a story that happened sometime ago. A transgender woman was seen walking/dancing in the streets of Kuala Lumpur, naked. This sparked an outrage amongst the locals who saw and took pictures of the woman. The pictures then went viral on the internet which led to the police taking action over the case. Private nudity on the other hand is when we send our lover(s) a naughty picture or two...and most of the time, we get away with it. Although we know this is somewhat illegal (but still do it anyway) perhaps it’s best to explain this by posing two situations. What if you shared your own nudes yourself? What if you shared it with your significant other and...they leak it? 1.When you send nudes on communication platforms, are you breaking the law? If the authorities do come across it, you can end up in a lot of trouble. Posting any obscene pictures of yourself in general, is definitely a bad idea as it can be used against you as evidence in court. So if you do post a naughty picture or two as a private message on Whatsapp, or it was posted on your private social media account, you can still be charged under Section 292 of the Penal Code for distributing and possessing pornographic material. The Act states in part: “Whoever— (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever..shall be punished with imprisonment for a term which may extend to three years or with fine or with both..” In other words, the Act covers both public and private exhibition of pictures which can lead to a jail sentence up to three years, a fine or both. Further, the Malaysian Communication and Multimedia Commission (MCMC) which is the national body that controls and regulates the communications and multimedia industry in Malaysia, can charge you consecutively under Section 233(1) of the Communications and Multimedia Act 1998 which states by part: “(1) A person who— (a) by means of any network facilities or network service or applications service knowingly— (i) makes, creates or solicits; and (ii) initiates the transmission of, any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person…commits an offence” The Act governs the improper use of network facilities or network service. So, if you do send lewd pictures on your social media page or think it’s okay to post a picture of yourself semi-nude just to show off your new tattoo...you can get charged under the Act which carries a fine not more than RM50,000.00 or a jail term of one year or both depending on the court’s discretion. This means, sending nudes in the first place is an offence even if you merely sent it to your partner or posted it on your private social media account. So this brings us to answer the second question... 2.What if your partner/ex-partner leaks your nudes? Sending obscene pictures of yourself to your partner—who can potentially become your ex someday, is a risk as your pictures can be used against you. For instance, netizens were recently brought to attention to a Telegram group that is spreading women's photos without their consent. The group better known as V2K shares pornographic videos and photos from different sources. Now if you do come across a situation where lewd images of yourself are now circulating on the internet (or groups like this) and you want to block it immediately, the MCMC will block the images/videos from being accessed further by the public. You’ll have to lodge a report first in order for them to block it. You can later initiate legal proceedings against your ex for posting these pictures. Anyone who leaks out nudes of another person can be charged under Section 292 of the Penal Code as well. The Act applies for both possession and distribution of pornographic material with a jail sentence up to three years, a fine or both if found guilty. Further, your ex-partner who distributed the pornographic content (obscene pictures of you) can also be additionally charged under Section 211(1) of the Communications and Multimedia Act 1998 which states in part: “No content applications service provider, or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person…” The Act carries a fine not more than RM50,000.00, sentenced to one year imprisonment or both for the prohibition or distribution of the offensive content. As much as the MCMC ensures the pictures are blocked from being accessed by the public, this does not mean it will be completely off the internet for good. A good example would be of “The Fappening” that happened several years ago. If you’ve not heard of it, it was actually an event where a collection of almost 500 private nude pictures of various celebrities, mostly women, were posted on the internet due to a security issue on iCloud. This was a major invasion of personal privacy, and most of the pictures are still being circulated in the internet. So how safe is safe when it comes to posting pictures on social media? The best solution is through prevention It’s always better to be safe than sorry. There are some measures that can be taken to prevent any mishaps from happening, and these apply whether you’re using an iOS or Android. You could try setting passwords to your phones for starters. However, there are ways to still go around it as it is not entirely secure. Parents should also monitor their children’s activities on the internet. There are cases of children sending nudes to adults because they have been ‘groomed’ to do so. If you haven’t heard of ‘child grooming’ before, it is an act of abuse where a person builds an emotional connection to exploit a child in sexual ways. This can be done in person or even online. Therefore, the Malaysian government passed the Sexual Offences Against Children Act 2017, where Section 12 in the Act makes it a crime for any adult to groom a child. Additionally, the Government has now launched the child sex offenders registry with 3,000 paedophiles listed in the report to curb this offence towards children. But when it comes to the issue of safety generally, perhaps the safest measure is to just avoid sending explicit pictures, because you never know who can get his/her hands on them. If you do come across a situation where your phone gets stolen or your personal information is being distributed by someone else (including photos) read this article for further information on how you can protect yourself. [READ MORE: How to avoid identity theft if your phone gets lost or stolen in Malaysia]"
"Can ambulances in Malaysia be sued if they arrive late? Imagine if you were a patient or the family member of a patient who needed to get to the hospital urgently. The ambulance arrived, but on the way to the hospital it realises that it needs to refuel and stops at a petrol station as it’s about to leave the petrol station, it meets with an accident with a lorry the lorry driver and ambulance driver end up arguing, and this goes on for an hour they proceed to the police station to make a report! Think this sounds ludicrous? This actually happened in Kuching at the beginning of the month and unfortunately, the patient who was made to wait for hours while these events unfolded passed away before he got to the hospital. This sparked outrage and many were asking what sort of action could be taken against the ambulance service provider. But have you wondered what the standard response time is for an ambulance to arrive? The international standard response time is 10-15 minutes and in Malaysia it can go up to 45-60 minutes. This can be partly attributed to the fact that there are only 0.28 ambulances for every 10,000 people, but of course, that cannot be a valid excuse, especially when it’s a matter of life and death. So, can you take any action if an ambulance takes forever to get to you? Here’s what we found out. You can sue the ambulance company If someone has wronged us and caused us a great loss as a result, we would most likely want to take them to court, or in other words, sue them. An ambulance service has a legal responsibility towards you to get to you quickly and to get you to a hospital on time. If they fail to fulfill that responsibility and you have suffered great harm as a result, you can sue them in court. If your claim succeeds, the court will hold the ambulance service to be negligent and you will be given compensation in the form of money. Ambulance service providers can be divided into 3: government hospital ambulances, private ambulances and ambulances from charities or non- profit organizations. This is important to know, because you may not be able to sue all of them. If the ambulance comes from a government hospital, you will be unable to sue the hospital itself. The hospital is not a legal body by itself. Because all government hospitals are under the government, you would actually be bringing a claim against the government of Malaysia. However, the Ministry of Health of Malaysia will be the one that looks into your case to rule out any foul play. On the other hand, if it was an ambulance from a private service provider, you can sue the service provider itself because unlike a government hospital, a private service provider is a legal body. So government and private ambulance providers can be sued… but what about ambulances from charities or non- profit organizations? Some ambulances cannot be sued There are two instances where you can’t sue an ambulance service: 1. The ambulance is from a charitable service provider Some ambulances are sent by charitable organisations for free. If the ambulance that sends you help does so out of goodwill or it’s from a charitable organization, you will not be able to take any legal action against them as they are just helping you and they don’t owe you the same duty as a regular ambulance would. Another reason you can’t hold them is responsible is because charitable organizations do not have as many ambulances as hospitals or private ambulance services. Due to this, they may not be in many locations and it would be impossible for them to reach you within minutes. When you dial 999, you will almost always be redirected to a government or private ambulance. To get the services of a non- profit ambulance, you would have to call them directly. Some free ambulance services that are run by charities are: Puteri Malaysia Ambulance St. John Ambulance Malaysian Red Crescent Society 2. No strong link between ambulance arriving late and harm suffered by patient So yes, an ambulance’s job is to get to you as soon as they can… but these are a few instances where they will very likely not be held responsible if a claim was brought to court. It’s not a life and death issue – while ambulances are expected to get to you in minutes, the priority will be for cases where the patient is in excruciating pain, their vitals signs are poor or when their condition is really serious. Nothing else was done to make the situation better – if there was a chance for you to call for more help or for a doctor to get to you first, you might not have a very strong case. If the ambulance service provider can prove that they were late due to circumstances beyond their control. Some examples would be: the address or information given or there was a bad traffic jam The ambulance arriving late didn’t cause you any harm – if the ambulance arrived really late but you weren’t in a serious condition, you will not have a case against the ambulance service provider. You can take action against them only if you suffered serious harm as a result of them arriving late. In essence, there has to be a strong link between the delay by the ambulance and the harm that was suffered by you. This is known as causation. And if no causation can be proven, unfortunately, you will not be able to hold the ambulance service responsible. There’s nothing to stop you from still taking your case to court, but it’s very likely that you will not have a strong case, or the judge will reject (strike out) your claim. In some cases, arriving late can also be a crime While suing is what most people might want to do, there are some instances where an ambulance arriving late can also be considered a crime. The case in Kuching that we mentioned at the beginning of this article is a good example. The ambulance driver has been charged under Section 43 of the Road Transportation Act 1987, which is careless and inconsiderate driving. …with a fine of not less than four thousand ringgit and not more than ten thousand ringgit and shall also be liable to imprisonment for a term not exceeding twelve months… The driver was charged with this offence because he deliberately delayed getting the patient to the hospital on time. Deliberate here doesn’t mean that he did it on purpose, rather that he knew what the consequences of him not rushing to the hospital were, but he still chose to do it. So if you were in this position and you strongly felt that the driver didn’t think it was important to get you to a hospital on time, you can make a police report. The police will gather enough information, investigate and charge the responsible person accordingly."
"Can the Malaysian government declare darurat because of a pandemic? When we use the term “State of Emergency”, more likely than not you’d conjure up images from your sejarah textbooks about the communist insurgency. Presumably, you’d be recalling those black and white pictures of road blocks, people moving into the new villages and soldiers doing patrols. And on 12 January, the Agong has declared a state of emergency until August 1. Well this time it’s not because of communists terrorising our jungles, but it’s due to the coronavirus. When this article was originally written in February 2019, emergency was also considered. But at that time, it was because of the heat. Weather at that time was on the hot side and according to a report by NST, the government can consider declaring a state of emergency if the temperature exceeds 40°c. If that did happen back then, it wouldn’t be the first time a state of emergency was declared due to dangerous weather, because an emergency was declared in 2013 due to haze. Now given that a state of emergency can be declared for reasons varying from commies to weather, here are 4 things you need to know... 1. An emergency starts with a proclamation by the YDPA According to the Federal Constitution a state of emergency starts with a declaration by the YDPA, because Article 150 of the Federal Constitution says: “If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.” This basically means that the YDPA can declare a state of emergency if he feels that the nation may experience some sort instability. In this case, it’s the rising number of Covid-19 cases. But a state of emergency can’t simply be declared, because Article 150 must be read with Article 40(1): In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister This means that the YDPA declares the state of emergency, but only after he has been advised to do so by the government. And once that is done and a state of emergency has officially been declared…. 2. Laws can be passed instantly Normally when the government wants to do something, they have to make a law. This law making process is long and tedious and can sometimes take months, but if we were to simplify the process, it goes something like this: The government proposes a law to parliament Parliament debate the issues with regards to the proposal Parliament MAY make changes to the proposal Parliament votes on the law and gets it passed if they want to [READ MORE: How are laws made in Malaysia] Unfortunately during an emergency, the government may not have the luxury of time and laws have to be passed quickly. Which is why during an emergency the government can pass instant laws called ‘ordinances’. Under Article 150 (2B), ordinances can be passed through the YDPA and it will have the same power as an ordinary act of parliament (or in simpler terms, a law). An example of such an ordinance was enacted when a state of emergency was declared during the May 13 Riots. To quell the unrest from the incident, the Emergency (Public Order and Crime Prevention) Ordinance 1969 was created for the purposes of arresting and detaining people without a warrant and trial. In other words... 3. These ordinances can infringe human rights Article 5 of our Federal Constitution prevents the authorities from detaining you willy-nilly, because they’d need to get permission from a judge. But during an emergency, an ordinance can be made even though it goes against Article 5 – the Emergency (Public Order and Crime Prevention) Ordinance 1969 mentioned earlier is of point. And it’s not just limited to rights against wrongful detention, the government can make ordinances going against other rights. But of course, whether or not ordinances will infringe constitutional rights depends on the situation at hand. Because if a state of emergency is declared for a pandemic, an ordinance for detaining people may be unnecessary. Usually for health emergencies, ordinances will be enacted to ensure the federal government can remedy the situation swiftly. 4. A state of emergency doesn’t last forever Because the purpose of a state of emergency is to restore order to chaos, it doesn’t last forever. In other words, there’s a life span to a state of emergency. Once order has been restored to the nation, the government can advise the YDPA to revoke his declaration of a state of emergency. In addition to that if Parliament decides that a state of emergency is no longer needed, they can vote to remove the state of emergency as well – returning the country’s governing system to the status quo. In fact, some people may have actually gone through a state of emergency and not even know it. In 1966, because of a power struggle between the Sarawak government and the federal government, a state of emergency was declared; but it was only officially revoked in 2011."
"Why does Malaysia take so long to create or change laws?  If there ever was a generalized but true statement to be made, it would be that almost everything we do on a daily basis is rooted in law, whether from renting an apartment (Contracts Act) to reporting your neighbors for abusing their pet (Animal Welfare Act). However, you may also have noticed that these laws can sometimes take ages to change or be introduced; such as a law against workplace sexual harassment, for example. So if there’s an issue of strong public concern, why can’t the government just quickly make a new law to address the problem? Without looking into arguments of political will, the base answer is simply because any proposals to introduce or change (amend) a law has to go through the Parliament, the Senate, and the Agong before it can be accepted. While we may sorta-kinda know this from reading the papers, let’s track how an idea or discussion makes the journey to become an actual law that affects millions of Malaysians. It all starts with a Bill A Bill is basically the proposal to introduce a new law or make changes to an existing one. It provides the general structure and idea of how the law will look like – pretty much a first draft. The content and principle of the Bill will be framed in this stage and it involves extensive discussion and negotiation among the parties who have an interest on the Bill, and those who will be affected (or represent those who will be affected) such as the government, NGOs, public interest groups, and so on. There are generally three types of Bills: Public Bills They concern matters affecting the general public interest such as crime and taxation. Both the government and a Private Member of Parliament can propose a Public Bill. The phrase private member refers to MPs who are not Ministers and not in the Cabinet. Hadi Awang’s Bill to amend the Syariah Courts Criminal Jurisdiction Act 1965 (RUU355) is an example of a Public Bill initiated by a Private Member. However, Public bills dealing with taxation and expenditure (aka Money Bills) only can be initiated by the government. So, the annual Federal Budget and The Bills on the Sales and Service Tax (SST) can only be initiated by the government because they are related to monetary issues. Public Bills are the most common type of Bills in Malaysia. Private Bills They deal with matters of private or local concern. This type of Bill is proposed by any private individuals, associations, or NGOs outside of the Parliament. Hybrid Bills This is self-explanatory. It is a mix of Public Bill and Private Bill. It involves issues of public interest which also affect the interest of some private individuals. If you look at the image above, the drafting and discussion of a Bill is part of the pre-parliamentary process, so it hasn’t even reached the hard part yet, which are the 3 levels of approval needed in order to turn it into a law. Once all parties are satisfied with the Bill, it goes to…. Level 1: Dewan Rakyat (House of Representatives) Dewan Rakyat is the lower chamber of Parliament. It is comprised of members representing their own federal constituency (Members of Parliament – MPs) elected during the general election. In other words, they are the elected representatives that speak for us at the federal level. Those whom we vote during a general election will sit in the lower house of Parliament. First Reading If it is a Government Bill, the related Minister will present the Bill to the House. The title of the Bill will be read and no debate will be held at this point. The Bill is then circulated to all Members of Parliament. Everyone in the House will get a copy of the Bill. It should also be mentioned that the Parliament usually meets (convenes) 3 times a year, so there is a priority list for hearing Bills, and not all Bills can be read during that particular seating. Second Reading Debates and discussion in relation to the contents of the Bill will be hosted. Members of Parliament can raise questions regarding the Bill or contribute suggestions. The Minister who proposed the Bill will then reply to the points raised by the Members. Members are required to vote at this stage to determine whether the Bill should move forward to the next stage. Committee Stage A Bill will be committed either to a Committee of the Whole House or to a Select Committee on the Bill. Committee of the Whole House means that all of the MPs in Dewan Rakyat are allowed to take part in the debate and to vote on the Bill’s contents. Whereas, a Select Committee is a group of selected MPs, that sit together in order to scrutinise and investigate the Bill. They would gather evidence from various ministers and officials, including the public and relevant organisations outside Parliament. Extensive debates will the take place and amendments can be made on the Bill. Votes will be taken to decide whether the particular proposed amendment by the Committee should be allowed or not. Third Reading Final debate on the Bill will be conducted. No substantive (major) amendments are permitted. A voting session will be held. Generally, a Bill will pass this House if it attains a simple majority vote, which is 51% of the total votes in the House. The Bill will then forwarded to Dewan Negara. Level 2: Dewan Negara (Senate) Dewan Negara is the upper chamber of the Parliament. Its members are appointed by Yang di-Pertuan Agong on the advice of Prime Minister and State Legislative Assemblies. It acts as a check and balance for the Dewan Rakyat. However, the Dewan Negara has no power to reject a Bill if they are not satisfied with the it. Dewan Negara can only propose amendments to the Bill and it must be agreed to by Dewan Rakyat. The question you may have is – what happens if Dewan Rakyat chooses not to adopt the proposed amendments? Article 68 of the Federal Constitution gives Dewan Rakyat the authority to bypass Dewan Negara in order for the Bill to reach the final stage of the parliamentary process. Dewan Rakyat can re-introduce again the Bill in the next parliamentary session (usually one year time period) and if it is not passed in Dewan Negara without amendments again, then it is automatically passed to the next level, which is the Yang di-Pertuan Agong. Level 3: Almost there! The Yang di-Pertuan Agong (YDPA) must nod his head! For a Bill to become law, royal assent must be obtained. Article 66(4) of the Federal Constitution provided that YDPA shall grant his assent to the Bill in 30 days: “The Yang di-Pertuan Agong shall within thirty days after a Bill is presented to him assent to the Bill by causing the Public Seal to be affixed thereto.” If YDPA does not consent to the Bill in 30 days, the Bill will automatically become law (Article 66(4A) of the Federal Constitution): “If a Bill is not assented to by the Yang di-Pertuan Agong within the time specified in Clause (4), it shall become law at the expiration of the time specified in that Clause in the like manner as if he had assented thereto.” We’ve finished all the levels in Parliament, but here’s one final step... People must know about the new law The law will generally come into force when it is published in the Federal Gazette after gaining royal assent (Article 66(5) of the Federal Constitution). The Bill will become law after the royal assent has been obtained, but in order for it to be in force (to be applied), the law must be published. The rationale behind the publishing of the law is that the law should be made known to the public in order for the public to be aware of the law in place which might affect them. It is also important to note that after gaining a royal assent, the Bill now changes into its final form and it will be known as an Act of Parliament. But there are other ways to “change” the law Although the parliamentary process is the most common way that laws get introduced and changed, there is another way that this can sorta-kinda be done; and that is through the courts. There have been many cases where laws were clarified or changed simply because one party decided to sue. A recent example is the legalization of paintball guns, where they are no longer considered illegal because a paintball company brought the PDRM to court, and won. [READ MORE: Here's how a group of paintballers changed Malaysian law by bringing the PDRM to court] However this can also be a double-edged sword, because losing the lawsuit may get you the exact opposite of the change you wanted. Examples of these are the legalization of boom gates in residential areas because an unhappy resident sued his Resident’s Association for putting up the boom gates and lost; and the introduction of the tort of sexual harassment because a man sued his ex-colleague for accusing him of sexual harassment and lost. The Sexual Offences Against Children Act was passed in 2017 within a short period of time in the Parliament. Now, the Government has launched the child sex offenders registry with 3,000 paedophiles listed in the report to curb this offence towards children. So perhaps, it depends on how important the law is and this will determine how fast the law needs to be passed. [READ MORE: Malaysians can now sue for sexual harassment thanks to a case involving...coconuts?] [READ MORE: Can neighbourhood guards block roads in Malaysia?] For a better idea of how the courts are involved in this, take a look at our article here: READ MORE: Where does Malaysia get its laws from?]"
"Jika sewa tidak dibayar, adakah tuan rumah berhak pecah masuk rumah penyewa? Pernahkah anda dalam senario di mana anda terlupa membayar sewa, dan tuan rumah ingin masuk ke dalam rumah untuk menuntut sewa tertunggak, adakah anda rasa privasi anda terganggu? Sebagai tuan rumah pula, anda hanya ingin mengambil tindakan bagi sewa bulanan yang tertunggak! Di Malaysia, terdapat pelbagai isu yang pernah timbul antara tuan rumah dan penyewa, dan kadang-kadang menjadi terlalu besar sehingga terpaksa membabitkan tindakan undang-undang dan mahkamah. Sebagai penyewa, apakah reaksi anda apabila tuan rumah masuk ke rumah tanpa izin? Sebagai tuan rumah pula, adakah anda akan dikenakan tindakan undang-undang sekiranya anda terpaksa meceroboh masuk ke rumah sewa anda tanpa izin penyewa? Adakah tuan rumah memerlukan keizinan untuk masuk ke rumah yang diberi sewa? Sebenarnya, terdapat undang-undang yang wujud bagi tuan rumah, yang boleh membuatkan anda memerlukan keizinan untuk masuk ke dalam rumah yang diberi sewa. Terdapat dua undang-undang yang melibatkan tuan rumah iaitu Seksyen 2(b) Akta Kontrak 1950 (Pindaaan 1974) dan Seksyen 7(2) Akta Relif Spesifik 1950. Seksyen 2(b) Akta Kontrak 1950 (Tiada versi BM rasmi; diterjemahkan oleh Asklegal): Sesuatu perjanjian yang dikuatkuasakan oleh undang-undang adalah kontrak. Dari undang-undang ini, secara ringkasnya sesuatu kontrak akan wujud sekiranya kedua-dua pihak telah mencapai persetujuan dan undang-undang mengiktiraf hak serta tanggungjawab kedua belah pihak yang terlibat dalam persetujuan itu. Dalam situasi ini, undang-undang ini akan melibatkan kontrak perjanjian sewa yang ditandatangani oleh pihak tuan rumah dan penyewa atau dikenali juga sebagai tenancy agreement. Jika dinyatakan dengan jelas dalam perjanjian sewa ini bahawa tuan rumah tidak berhak untuk masuk ke dalam rumah penyewa tanpa keizinannya, selagi mana penyewa tidak melanggar mana-mana syarat perjanjian sewa yang telah ditetapkan, tindakan undang-undang boleh diambil terhadap tuan rumah. Syarat perjanjian ini kebiasaannya akan digunakan oleh penyewa bagi melindungi hak privasi mereka terutamanya jika tuan rumah dan penyewa adalah berlainan jantina. Walaupun begitu, seperti yang dinyatakan dalam kontrak perjanjian sewa, jika didapati atau disyaki penyewa melakukan sesuatu yang boleh melanggar kontrak perjanjian, tuan rumah berhak untuk masuk ke dalam rumah bagi mengambil tindakan terhadap penyewa. Sekali lagi diingatkan, syarat-syarat perjanjian ini perlu dinyatakan dengan jelas dalam perjanjian yang ditandatangani, untuk mengelakkan salah faham dan juga tuan rumah mungkin didakwa menceroboh! Seksyen 7(2) Akta Relif Spesifik 1950: Jika sesuatu harta tak alih spesifik telah disewakan di bawah sesuatu penyewaan, dan penyewaan itu ditamatkan atau telah berakhir, tetapi penghuni itu masih terus menduduki harta itu atau sebahagian daripada tanah itu, orang yang berhak kepada milikan harta itu tidak boleh menguatkuasakan haknya untuk mendapatkan harta itu kembali terhadap penghuni itu melainkan dengan prosiding di mahkamah. Bagi undang-undang ini secara ringkasnya, tuan rumah dilarang mengusir penyewa, menukar kunci atau apa- apa tindakan lain tanpa perintah mahkamah. Walaupun begitu, terdapat segelintir penyewa yang mengambil kesempatan kepada tuan rumah dengan menggunakan akta dan undang-undang ini dan enggan keluar dari premis yang disewa walaupun gagal membayar ansuran bulanan atau telah tamat tempoh penyewaan dalam perjanjian sewa. Susah la macam ni. Ada tak cara jaga hak sebagai tuan rumah, dan juga hak penyewa? Pasti anda tertanya-tanya bagaimana untuk memastikan hak peribadi penyewa terjaga, dan hak tuan rumah terbela pada masa yang sama? Sebenarnya perkara ini boleh diselesaikan dengan perjanjian sewa yang jelas menerangkan hak tuan rumah dan juga hak penyewa. Berikut merupakan perkara yang perlu diambil berat oleh pihak tuan rumah dan juga penyewa. Dari sudut hak tuan rumah Nyatakan dengan jelas dalam perjanjian yang anda akan memberi notis atau pemberitahuan awal kepada pihak penyewa jika anda ingin membuat pemeriksaan berkala terhadap rumah anda. Tuan rumah berhak memasuki rumah yang diberi sewa jika terdapat bukti yang kukuh bahawa penyewa telah melanggar perjanjian yang telah dipersetujui. Dari sudut hak penyewa Pastikan anda menyimpan salinan perjanjian sewa yang telah ditandatangani dan sudah dimatikan setem Sebelum menandatangani perjanjian sewa pastikan anda memahami isi kandungan perjanjian dan jika terdapat keraguan tentang syarat perjanjian, buat rundingan secara baik dengan tuan rumah. Untuk maklumat lanjut mengenai perkara yang perlu dilakukan sebelum anda menandatangani mana-mana kontrak di malaysia, baca lebih lanjut di sini: [BACAAN LANJUT: 5 Perkara Asas Yang Anda Perlu Tahu Apabila Menandatangani Kontrak ] Untuk rujukan lebih lanjut mengenai hak lain-lain bagi penyewa yang boleh dimasukkan dalam perjanjian sewa, bolehlah baca artikel kami di sini (Bahasa Inggeris) Negara Malaysia tak ada rujukan undang-undang penyewaan yang lebih lengkap ke? Menurut artikel yang ditulis di Utusan Malaysia oleh Datuk Salleh Buang iaitu bekas Peguam Persekutuan di Jabatan Peguam Negara, Malaysia masih belum mempunyai akta sewaan kediaman yang lengkap kerana akta yang sedia ada wujud adalah umum, ringkas dan tidak memperincikan secara lengkap tentang hak kepentingan tuan rumah mahupun penyewa. Negara-negara maju di sekitar dunia rata-ratanya mempunyai penguatkuasaan undang-undang yang lebih teliti dan khusus bagi akta sewaan kediaman dan dari pendapat beliau, Akta Sewaan Kediaman 2006 di Ontario Kanada adalah akta yang lengkap yang melindungi kepentingan hak tuan rumah dan juga penyewa. Namun, sehingga akta sewa kediaman yang lebih komprehensif digubal di Malaysia, penyelesaian kepada isu ini sebenarnya bermula dari komunikasi yang berkesan antara tuan rumah dan penyewa. Bagi memastikan keselamatan dan privasi penyewa tidak terganggu jika memerlukan tuan rumah untuk memasuki rumah, maklumkan kepada penyewa terlebih dahulu atau pastikan tuan rumah bertindak dengan pengetahuan pihak berkaitan seperti pihak berkuatkuasa, pihak pengurusan kediaman (jika dalam kondo atau apartmen). Pihak penyewa juga digalakkan melakukan rundingan dengan saksi dari pihak penyewa untuk mengelakkan salah faham dan ketidakadilan berlaku. Jika kedua-dua pihak dapat mencapai kata sepakat, hak kedua-dua pihak akan tetap dilindungi tanpa sebarang isu."
"5 Malaysian court cases that got postponed...for the weirdest reasons Recently, the news about a Malaysian lawyer who fractured his wrist while playing with his pet dog went viral on social media. Due to the accident, the lawyer had to postpone the trial of his case to a further date. Well this isn’t the first time a case was postponed in the country. It can happen for many reasons and cases don’t always get heard on the dates that were set for hearing/trials. We found a few interesting reasons for cases to be postponed in Malaysia...but before that, let’s clarify something first. Only a judge has the right to postpone cases Before we go into whether judges can do so, one thing should be highlighted here: The term adjourn technically means ‘postpone’ and is widely used in the Malaysian courts. And both the words mean the same thing. So, a judge cannot simply postpone a case for the sake of it. This can only be done by the law and is stated under Section 259(1) of the Criminal Procedure Code which states that the absence of a witness or any other party shall be done based on reasonable grounds as mentioned in the Act: “If, from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial the Court may, by order in writing, from time to time, postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable...” So the law basically gives the power to the Magistrate to postpone a particular case when it is fit to do so. An application to postpone a case has to be done by writing and signed by the Magistrate. Now that we know which part of the law allows cases to be postponed...here is a list of cases/situations where the judges have used his/her power to postpone cases (in no particular order) 1. A judge didn’t like a lawyer’s red tie You could say the judge was seeing red over this case. So what happened was... Somewhere in the year 2007, a lawyer was asked to remove his red necktie because the Magistrate did not like the colour of the tie. Halfway through the proceedings the Criminal case was halted and subsequently postponed. The magistrate judge was then said to have retired to her chambers. If you were wondering, there is General Circular for lawyers which lays down the dress code for appearing in court. For men: A dark or preferably black trousers and shoes with white/pastel coloured shirts are allowed. Ties should also be of plain and and darker colours. For women: It is somewhat similar to the colour code adhered by men. So, they are only allowed to wear black trousers/skirts with a white/pastel coloured shirt and black court shoes. Scarfs should also be of similar colours. The lawyer in the red tie (that’s what we have decided to call him now) had then filed a complaint with the Senior Sessions Court Judge of Johor Bahru. Perhaps, you can say first impressions do have a lasting impact to some people. In this case, the Magistrate had a certain colour preference for the lawyers who represent cases in her court. 2. The accused person needs time (and a lawyer) While a person does not technically need a lawyer to represent him/herself in court, it would still be hard to do conduct/navigate a case without a lawyer. There have also been circumstances where the courts do give a certain duration of time to a person to find a lawyer, before appearing in court. In situations like this, the accused person may need his case to be postponed due to several reasons: The accused person is seeking a new lawyer because his previous lawyer has been discharged. The accused has appointed a new lawyer and he/she now needs time to familiarise him/herself with the client’s case. However, the court’s decisions would depend on whether it is reasonable to give an adjournment. For example, in the case of Por Choo Aik [1993] –Por Choo Aik was charged for cheating someone with an amount of RM 2,400.00. On top of being accused for a crime, he was also found to be at fault for appointing a lawyer at the very last minute. He literally hired a lawyer on the day of the hearing and then came to court seeking to postpone the case. The courts did not allow him to postpone his case as the fault was mostly on his side. As you can see, courts have grant for postponement before. But they don’t always do so for every case. In a case like the above, the courts have to make a firm decision when dealing with an application of adjournment. So it all boils down to whether the courts find the reasoning behind the purpose for adjournment – a valid one or not. So this brings us to the next situation… 3. Several cases were being heard at the same time Five stateless people who were looking to get a citizenship in Malaysia had their case postponed by the Federal Court. They were basically children adopted by Malaysians, children born to a foreign mother, and also those who had issues relating to legitimacy of a child. The reason behind the postponement of the case is simply because the Federal court wanted the lawyers to come up with a common set of questions for all the cases. This meant that the cases will be dealt with together in one hearing and will be given a single judgement. Since this would require more time and each case had to be dealt with on a case to case basis, the adjournment was granted. 4. The trial of Najib Razak With DS Najib Razak’s charges in court being the talk of the town, let’s walk down the chronology of events on the number of times his hearing/trial was postponed. But before we do so, let’s briefly understand the basis of the charges he is currently facing – He faces a total of 42 charges, including seven charges over the SRC International which amounts to RM42 million. For the matter of postponement and adjournment, we’ll be focusing on the SRC charges where the former Prime Minister’s case had been applied to be adjourned in 2019. Below is a summarized version of the chain of events that have unfolded following the former Prime Minister’s charges: Here are three applications of postponement were made by DS Najib’s lawyers and were granted by the courts: The former Prime Minister’s case was postponed because his lawyer’s pet dog fractured his lawyer’s wrist and he was medically unfit to conduct the trial. DS Najib’s case was to be transferred by the prosecution from the Sessions Court to the High Court. But DS Najib realised that there was a procedural misunderstanding that took place. Therefore, the Court of Appeal allowed DS Najib’s application to postpone his trial until further notice. DS Najib’s lawyers’ had filed for an application to postpone the case that has been taken to the high court, as he was appealing on some minor matters which went up to the Federal Court, where the outcome had to be given first. The application was then successful in the Court of Appeal. For all three applications, there was proper reasoning behind the reason to postpone and the courts did not see any deliberate “foulplay” to postpone the cases. 5. The investigation is incomplete This reason is seldom granted for postponement. This can sometimes mean that the incomplete investigation is because the Prosecutor (person who is against the defendant) has yet to charge the accused for a crime. In the case of PP v Tan Kim San the accused person, Mr Tan had committed a criminal breach of trust – which means he dishonestly swindled money/property from someone else. When the case came up for trial, the prosecutors wanted the case to be postponed as the investigation was not done completely. And in situations as such, the Magistrate has a duty to acquit the accused person as stated under Section 173(g) of the Criminal Procedure Code 2012 as stated below: “Nothing...shall be deemed to prevent the Court from discharging the accused at any previous stage of the case if for reasons to be recorded by the Court it considers the charge to be groundless...” Based on the Act, this may be unfair and create injustice towards the accused person who has not even been found guilty for a crime yet. Normally, there will be extra documents that needs to be brought to court by the authorities and a postponement is necessary in circumstances such as tracing a witness or collecting extra documents (a medical/chemist report). The courts may consider this to be reasonable and can grant an adjournment under these terms. It may now be easier to postpone cases Previously, the former CJ had mentioned that postponing cases will only be granted to lawyers in situations of “death or near death”. However, the current Chief Justice Tan Sri Richard Malanjum has gone by to say that cases shall only be postponed in circumstances where a reasonable and proper reasoning is given. So, reasonable circumstances will depend on a case to case basis. And this would depend on whether the courts allow and grant the application of postponement."
"5 things you should know about Malaysia's signing of the Rome Statute “The Rome Statute”. You would have seen this term quite a bit on our local news headlines. Basically, the Malaysian government was planning to adopt this “Rome Statute”, and there were people who disagreed with it. Nevertheless, the government went through with it and signed the document. To clarify, the Rome Statute is a piece of international law that creates an international judicial body known as the International Criminal Court (ICC). So any country who signs the Rome Statute basically agrees to recognise the powers of the ICC. So now in addition to having our local criminal courts, you could say Malaysia now has an international criminal court as well. And given that the way our local courts work is difficult to understand, it would only be worse trying to understand the mechanisms of an international court. So here are the important things you need to know about it... 1. The ICC can only prosecute four types of crimes The objective of the ICC is to punish those who commit the most serious international crimes and war crimes. So NO, you won’t be seeing your local snatch thief standing in the docks of the ICC facing trial. In fact even with war crimes or crimes of international proportions, the ICC is limited with regard to what types of crimes they can hear. According to Article 5 of the Rome Statute, the ICC only has jurisdiction for the following crimes: Genocide: which is any crime intended to destroy a particular race, nationality or religious group. Crimes against humanity: this one has a long list of examples which you can see for yourself here. But in essence it concerns some sort of systemic attacks against a civilian population. Examples include enslavement, apartheid, murder, rape, etc. War crimes: this would be acts that go against normal rules of war. This is also a long list – but it includes bombing schools and hospitals, torturing prisoners of war, using biological weapons etc. Crimes of aggression: this basically means starting a war Now that you know that there are only four crimes the ICC can hear… 2. A case always begins at The Office of the Prosecutor The ICC has an Office of The Prosecutor (OTP), which is similar to our Attorney General’s (AG) Chambers. So in Malaysia if a prosecutor believes someone has committed a crime, they will charge them in court and try their best to prove that a suspect is guilty. What the OTP does is similar (they try to prove people are guilty in the ICC), but they have some differences and a little bit of extra duties. So while in Malaysia our AG has absolute powers to start prosecutions in our local courts, the OTP does not have such broad powers in the ICC. The OTP can only start prosecutions when: a country who has signed the Rome Treaty asks them to do so the United Nations Security Council asks them to do so or the OTP starts prosecution by themselves; according to their own discretion In addition to what was stated above, the OTP also has an added duty to conduct investigations. They would send investigators out (usually to the countries concerned) with the intention to collect evidence for trial – these evidences would usually be in the form of documents by a government and witness statements. If the OTP decides that there’s enough evidence to prosecute, they will ask an ICC judge to issue an arrest warrant or summons to appear (basically a formal request asking the suspect to appear for trial at the ICC). Once the suspect is in court, trial will begin where the judge hears both sides’ evidence and comes up with a verdict. 3. The ICC can only hear crimes by signatory countries If anyone commits a crime in Malaysia, they can face trial in our local courts. Even if he’s from Egypt and happens to snatch someone’s bag in Malaysia, he can still face the judgement of our local courts. However things are very different with the ICC. Even with those 4 crimes we mentioned that the ICC are allowed to hear, not everyone who commits such a crime can face trial at the ICC. This is because Article 12 of the Rome Statute says that, the ICC can only hear cases involving those four crimes if: it is committed by a citizen of a country who has signed the Rome Statute it is committed in the territory of a country who has signed the Rome Statute That one important element seems to suggest that the ICC only has jurisdiction if the crime somehow involves a country that has signed the Rome Statute. So given that Malaysia has signed the Rome Statute, we shall illustrate these points with a hypothetical example for better understanding: Scenario 1 Ah Chong (a Malaysian) and Rezki (an Indonesian) start a civil war in Malaysia. During the war they both attempt to wipe out the local Indian population in Selangor (genocide). Scenario 2 Ah Chong (Malaysian) wages war against Russia and invades the territory. During the war Ah Chong uses biological weapons in Moscow (war crime). Following scenario 1, both Ah Chong and Rezki can be prosecuted in the ICC because they both committed a crime in a country that has signed the Rome Statute – this is regardless of the fact Indonesia is not party to the law, because Rezki still committed the crime within Malaysian borders. As for scenario 2 even though Russia isn’t a party to the Rome Statute, Ah Chong can still be brought to the ICC because he’s a citizen of a country that has signed the Rome Statute. So now if you’re wondering what would happen to Ah Chong and Rezki if they’re found guilty by the ICC... 4. The ICC can sentence people to prison A criminal court is basically useless if they don’t have the powers to punish. Which is why just like other criminal courts, the ICC has the powers to punish someone if they’re found guilty. According to Article 77 of the Rome Statute, the ICC an give out 2 sentences if they find a suspect guilty: a prison sentence not exceeding 30 years a prison sentence for life For life sentences, the ICC can’t simply hand out that punishment; they can only do so after deciding that the gravity of the crime is extreme. So now that we know that the ICC can hand out prison sentences, the next question you may have is “Where do these guilty fellows go to jail?”. Well in Malaysia things are pretty straightforward, because people who are found guilty in our local courts get sent to one of our local prisons (Sungai Buloh Prison for example). However, with the ICC things are not as straightforward. If the ICC is detaining someone who’s awaiting trial (not found guilty yet), they will be kept in the Scheveningen Prison in Netherlands for remand. And as for those who are found guilty by the ICC, they will be sent to prison in a country who’s promised the ICC that they will keep him imprisoned. Usually this would be a country who has signed the Rome Statute as well. 5. There’s almost no immunity from the ICC Under the Rome Statute, no one is immune from prosecution unless they’re under the age of 18. This basically means, anyone and everyone over the age of 18 can be prosecuted by the ICC. This has been a point of contention in Malaysia, because this would mean that our YDPA could be subject to the jurisdiction of the ICC. To further emphasise why this is important, locally our YDPA cannot be subject to the jurisdiction of our Malaysian courts, this is due to a concept called royal immunity. Nevertheless, Wisma Putra has confirmed that immunity of our YDPA can’t be affected by the signing of the Rome Statute, for the following reasons: According to Article 40 of the Federal Constitution: the YDPA can only carry out his duties on the advice of the Prime Minister although technically the YDPA is the commander in chief of the armed forces, the armed forces is technically under the control of the government there are other countries with monarchs who have signed the Rome Statute; Belgium, Cambodia, Denmark, Japan, Jordan, Lesotho, Liechtenstein, Luxembourg, The Netherlands, Norway, Samoa, Spain, Sweden and the United Kingdom [READ MORE: Iktiraf Statut Rom gugat kuasa YDP Agong? Ini yang kita kena tahu...] “In our constitutional monarchy system and according to Article 40 of the Federal Constitution, the duties of the YDPA are performed based on the advice of the Prime Minister” – Minister of Foreign Affairs Datuk Saifuddin Abdullah If it doesn’t work out we can come out of it It was reported by the Washington Post 3 days ago that Filipino President Rodrigo Duterte has pulled the Philippines out from the ICC’s jurisdiction. Critics apparently believe he did so to avoid being investigated by them for his war on drugs. Nevertheless the reasons, it shows that it is possible for Malaysia to come out of the ICC if things somehow don’t work out. Also given that Malaysia’s diplomatic stance has always been neutral and non-confrontational, we don’t need to worry about the ICC anytime soon as well."
"4 kanak-kanak hilang setiap hari di Malaysia, ini  yang kita boleh lakukan tentangnya... Dari tahun 2012 sampai 2017, terdapat 482 kes kanak-kanak bawah umur 12 tahun dilaporkan hilang di Malaysia. Dengan mengambil statistik pada tahun 2017 pula, boleh dikatakan purata 4 orang kanak-kanak hilang untuk setiap hari di negara ni. Bagaimanapun, angka ni termasuk dengan kes-kes lain macam – remaja lari dari rumah, kanak-kanak yang diculik untuk tebusan, pemerdagangan kanak-kanak, ataupun eksploitasi seksual. Walaupun ada di antara mereka ni yang balik dalam keadaan selamat, tapi ada juga yang sampai sekarang masih lagi belum ditemui. Kes kehilangan kanak-kanak selalunya dapat perhatian utama dari pihak berkuasa. Sebab itulah, bila ada je kes, kita akan nampak polis umumkan kes tu di NUR Alert melalui Facebook atau laporan berita. NUR Alert ni sebenarnya satu sistem amaran awal untuk kes kanak-kanak hilang yang berumur 12 tahun dan ke bawah. Baru je pada Isnin lepas (4 Mac), PDRM buat pengumuman NUR Alert tentang seorang kanak-kanak 3 tahun, Nur Aisyah Aleya Binti Abdullah yang dilaporkan hilang. Bagi yang nak tahu, NUR Alert ni diperkenalkan melalui Dasar Perlindungan Kanak-Kanak Negara, yang mana dasar ni diperkenalkan oleh Malaysia sebagai pengiktirafan kepada Konvensyen Mengenai Hak Kanak-Kanak Pertubuhan Bangsa-Bangsa Bersatu (CRC). Matlamat NUR Alert ni adalah untuk memastikan kanak-kanak berumur 12 tahun dan ke bawah dilindungi dari sebarang eksploitasi, keganasan dan pengabaian, melalui hantaran makluman untuk penguatkuasaan, media dan agensi penyiaran. Melalui cara ni, Polis akan terima maklumat daripada masyarakat untuk membantu usaha pencarian kanak-kanak yang hilang tu. Maknanya, semakin ramai yang membantu, semakin cerah peluang kanak-kanak tu dijumpai dalam keadaan baik dan selamat. Jadi, kita dah jelas tentang fungsi NUR Alert, tapi kita juga nak tahu macam mana dan bila sistem ni bermula? Ada kisah tragik di sebaliknya… NUR Alert sebenarnya adalah singkatan dari National Urgent Response (NUR) Alert. Tapi lebih awal dari tu, ia dinamakan sebagai National Urgent Response Information Network (NURIN) sebelum dipendekkan. Nama awal ni datang lepas berlakunya kes penculikan dan pembunuhan tergempar melibatkan seorang kanak-kanak 8 tahun, Nurin Jazlin pada tahun 2007. Setahun lepas tu, pakcik Nurin dan sekumpulan blogger dah mencadangkan idea supaya diperkenalkan sistem sedemikian. Diorang dah menghantar kertas cadangan kepada Menteri Wanita, Keluarga dan Masyarakat, Datuk Seri Shahrizat Abdul Jalil. Akhirnya selepas tiga tahun, sistem NUR Alert diperkenalkan dan mula dilaksanakan. Selain tu, pengenalan NUR Alert sebenarnya berdasarkan satu program yang berjaya di Amerika Syarikat (AS), “AMBER Alert”. Sistem ni dapat nama dari peristiwa hitam penculikan dan pembunuhan seorang kanak-kanak berumur 9 tahun, Amber Hagerman, di Arlington, Texas, pada tahun 1996. AMBER Alert juga adalah akronim bagi America’s Missing Broadcasting Emergency Response. Menurut seorang Professor Madya Keadilan Jenayah, Universiti Nevada, Timothy Griffin, sistem AMBER Alert setakat ini mencatatkan 20% kadar kejayaan dalam menyelesaikan kes penculikan kanak-kanak sejak diperkenalkan pada tahun 1996. Walaupun tak ada banyak maklumat tentang kejayaan NUR Alert, tapi seperti mana yang kita tahu, pihak berkuasa sentiasa cari jalan untuk tambah baik sistem sedia ada. Pada tahun 2016, PDRM dah bekerjasama dengan Facebook untuk memperkembangkan lagi NUR Alert melalui platform Facebook. Pada bulan lepas, PDRM dah berkerjasama pula dengan GRAB, untuk dapatkan kerjasama daripada pemandu-pemandu dan penumpang Grab dalam usaha pencarian kanak-kanak hilang. Tapi, ada satu lagi inisiatif NUR Alert yang melibatkan kita semua... Ini caranya untuk korang dapat notifikasi NUR Alert dengan cepat… Pada 1 Mac 2019 lepas, Suruhanjaya Komunikasi dan Multimedia Malaysia (SKMM) ada mengumumkan yang NUR Alert akan turut disalurkan melalui Multimedia Messaging Service (MMS) ke phone kita. Dekat MMS tu nanti, akan ada gambar dan identiti kanak-kanak yang hilang. Tapi, korang mesti subscribe servis ni dulu secara percuma, seperti mana yang ditunjukkan di bawah. Kebanyakan daripada kita selama ni, selalu buat tindakan sendiri dengan kongsi berita pasal kanak-kanak hilang di media sosial. Walaupun media sosial boleh dikatakan sebagai salah satu platform penyebaran maklumat yang cepat, tapi kadang-kadang maklumat yang dikongsikan tu mungkin tak tepat atau dah lapuk. Lagi satu, walaupun kita ada niat yang baik, tapi kalau maklumat yang dikongsikan tu tak tepat, ia juga boleh menambahkan lagi masalah. Bukan je maklumat palsu yang mengelirukan, ia juga boleh membawa pada suasana panik – macam insiden melibatkan Pusat Membeli-belah 1 Utama ni: Masa juga jadi antara faktor kritikal bila adanya kes kanak-kanak hilang. Berdasarkan Pusat Kebangsaan Kanak-kanak Hilang dan Dieksploitasi Amerika Syarikat (NCMEC), 48 jam pertama lepas seseorang kanak-kanak hilang adalah waktu paling kritikal untuk mana-mana kes sekalipun. Oleh itu, antara cara terbaik untuk membantu adalah dengan subscribe sumber rasmi, yang maklumatnya disahkan dan dikemaskini. Sebab itulah kalau kita dapat maklumat dari MMS NUR Alert lebih baik, sebab ia lebih pantas dan efisien. Kita kena lakukan banyak lagi untuk terus berjaga-jaga Malaysia sebenarnya ada undang-undang yang tegas untuk kesalahan menculik – sesiapa yang didapati bersalah menculik boleh berdepan dengan hukuman mati atau penjara seumur hidup dan sebatan (Seksyen 3, Akta Penculikan 1961). Tapi pencegahan je tak cukup, memandangkan kes penculikan masih lagi berlaku. Ini maknanya, kita semua tetap kena berjaga-jaga. Macam kisah NUR Alert – Nur Aisyah Aleya yang kitorang ceritakan di awal tadi. Dua hari lepas maklumat tu disebarkan, kita dikhabarkan dengan pengakhiran tragik Nur Aisyah. Berdasarkan siasatan awal, sepasang suami isteri dah ditahan bagi membantu siasatan, bila mereka disyaki meninggalkan mayat Aisyah di Hutan Gunung Raya, selepas kanak-kanak tu mengalami sawan ketika mandi. Kisah tragik Nur Aisyah berakhir dengan kesedihan, tapi hakikatnya masih ramai lagi kanak-kanak yang dilaporkan hilang di Portal Rasmi Kanak-Kanak Hilang PDRM. Ini menunjukkan yang NUR Alert bersangkutan dengan hal hidup dan mati. Jika lebih ramai masyarakat yang berjaga-jaga, mungkin kita dapat elakkan tragedi sebegini dari berulang. Jadinya mulai sekarang, korang boleh minta kenalan korang untuk mendaftar dengan NUR Alert. Kalau korang nampak muka yang agak familiar atau aktiviti mencurigakan, korang patut hubungi Talian NUR/KASIH – 15999 atau nombor spesifik yang disiarkan dalam setiap edaran NUR Alert."
"Iktiraf Statut Rom gugat kuasa YDP Agong? Ini yang kita kena tahu... Sejak beberapa hari ni, kecoh pasal isu Malaysia menandatangani Statut Rom (Rome Statute), bila ada pihak yang kata Statut Rom ni boleh mengganggu gugat bidang kuasa Yang Dipertuan (YDP) Agong dan Raja-Raja Melayu. Antaranya adalah Tunku Mahkota Johor (TMJ), yang kata – institusi raja akan tergugat bila mana YDP Agong boleh diheret ke Mahkamah Antarabangsa. Bagaimanapun, kenyataan baginda dah dinafikan oleh Wisma Putra dan Perdana Menteri – Tun Dr Mahathir Mohamad. Makanya, Malaysia sekali lagi berdepan dengan isu kontroversi, selepas kerajaan membatalkan usaha meratifikasi ICERD beberapa bulan lalu. Ini kerana, sesuatu tu boleh menjadi kontroversi dan sensitif bila ia dikaitkan dengan institusi raja dan hak istimewa orang Melayu. Oleh itu, sebelum kita bercerita dengan lebih panjang lagi, mungkin lebih baik untuk kita tahu dulu latar belakang dan sejarah Statut Rom yang diperdebatkan ni. Perjanjian ni muncul untuk mengadili jenayah kejam sesebuah negara Statut Rom atau dikenali sebagai Statut Rom Mahkamah Jenayah Antarabangsa adalah satu triti (atau perjanjian) rasmi antara negara-negara untuk menubuhkan Mahkamah Jenayah Antarabangsa (ICC). Perjanjian ni diperkenalkan pada tahun 1998 dan dah dikuatkuasakan pada Julai 2002. Sehingga Mac 2019, terdapat 124 negara yang dah menjadi negara pihak (state party) perjanjian antarabangsa ini. Statut Rom sebenarnya muncul sebagai respon kepada dua tragedi besar yang jadi pada akhir tahun 1990-an iaitu Penghapusan Etnik Rwanda (1994) dan Jenayah Perang Bosnia (1995). Kerana itu jugalah Perkara 6 sampai 8 Statut Rom memperuntukkan bidang kuasa ICC cuma untuk membicarakan empat jenayah antarabangsa utama, iaitu: Penghapusan etnik (genocide). Jenayah terhadap kemanusiaan. Jenayah perang. Jenayah pencerobohan. Jadi… konflik antara jiran dan rumah tangga tak termasuk dalam mahkamah ni. Berdasarkan rekod, sehingga ke hari ni, 10 daripada 11 kes ICC hanya membabitkan negara-negara Afrika dan hanya satu yang bukan iaitu Georgia ketika berlakunya konflik South Ossetia pada tahun 2008. Tak kiralah Ketua Negara atau Komander Tentera, semuanya tertaluk dalam ICC Kalau kita lihat Perkara 27 dalam Statut Rom, ia memperuntukkan bahawa Ketua Negara negara pihak sebagai tertakluk kepada bidang kuasa ICC. Tapi ia bukan terhad kepada Ketua Negara sahaja, sebabnya Perkara 28 pula menyentuh tentang Komander Tentera. (a) Seorang Komander Tentera atau orang yang bertindak sebagai komander ketenteraan adalah bertanggungjawab terhadap jenayah di dalam bidang kuasa Mahkamah yang dilakukan oleh pasukan di bawah arahan dan kawalannya… Menurut Statut Rom lagi, sebarang imuniti dan kekebalan yang diperuntukan kepada mereka juga tak akan terpakai kalau mereka dibicarakan di ICC. Bagaimanapun, menurut pakar undang-undang dari Universiti Sains Islam Malaysia (USIM), Dr Fareed Hassan, bidang kuasa mahkamah ni tertakluk kepada Prinsip Saling Melengkapi (Complementarity Principle) yang mana pihak berkuasa tempatan atau mahkamah sesebuah negara akan terlebih dulu menyiasat/mendengar dan memutuskan sama ada kes-kes tu termasuk dalam jenayah ditetapkan ICC. Kalau pihak berkuasa tempatan atau mahkamah dalaman negara tersebut tak mampu atau tak mahu (unable or unwilling) menyiasat atau mendengar kes-kes jenayah yang empat itu, barulah ICC akan bertindak. Maknanya di sini, bila benda macam tu jadi, pihak ICC boleh minta pihak berkuasa negara terbabit bekerjasama untuk tangkap dan serahkan mereka yang disyaki lakukan jenayah ke ICC. Tak kiralah mereka tu Ketua Negara atau Komander Tentera seperti mana yang termaktub dalam Bahagian Kesembilan, Perkara 87 Statut Rom. 1. (a) Mahkamah mempunyai kuasa untuk membuat permintaan kepada Negara Pihak untuk bekerjasama. Permintaan itu hendaklah melalui saluran diplomatik atau mana-mana saluran lain yang sesuai sebagaimana yang ditetapkan oleh setiap Negara Pihak selepas pengesahan, penerimaan, kelulusan atau penyertaan. Selain tu, menurut Perkara 120 Statut Rom, perjanjian ni tak membenarkan mana-mana peruntukan yang ada di dalamnya dihadkan penggunaan oleh negara-negara pihak, tak macam perjanjian – perjanjian antarabangsa lain yang membenarkan perkara sebegitu dibuat. Jadi, setiap peruntukan yang ada dalam Statut Rom kena dipatuhi oleh negara-negara pihak, dan tak ada pengecualian. Tapi… macam mana dengan bidang kuasa YDP Agong? Tergugat ke? Kalau kita merujuk Perlembagaan Persekutuan, dah dinyatakan dengan jelas bahawa YDP Agong adalah Ketua Negara dan Pemerintah Tertinggi Angkatan Tentera. Polemik yang timbul sekarang ni adalah sama ada Statut Rom boleh menggugat bidang kuasa YDP Agong. Berdasarkan jawapan dari Wisma Putra, walaupun Malaysia melakukan jenayah terkutuk seperti yang dinyatakan dalam perjanjian, peranan YDP Agong tetap tak akan disentuh kerana beberapa faktor: Artikel 40, Perlembagaan Persekutuan - Yang di-Pertuan Agong adalah seorang Raja Berperlembagaan. Semua tugas-tugasnya di laksanakan atas nasihat perdana menteri/kabinet. Artikel 41, Perlembagaan Persekutuan - Yang di-Pertuan Agong merupakan pemerintah tertinggi bagi angkatan tentera persekutuan. Yang di-Pertuan Agong tidak diberi kuasa untuk mengisytihar perang. Negara-negara pihak lain yang mempunyai Raja Berperlembagaan turut terima Statut Rom seperti: Belgium, Kemboja, Denmark, Jepun, Jordan, Lesotho, Liechtenstein, Luxembourg, The Netherlands, Norway, Samoa, Sepanyol, Sweden dan United Kingdom. Malah, seorang pengamal undang-undang, Mohd Khairul Azam juga kata, menerima Statut Rom tak akan menggugat peranan YDP Agong. Sebabnya, Malaysia bukanlah sebuah negara kuasa ketenteraan dan dasar luar Malaysia selama ni adalah sentiasa ambil pendekatan berkecuali dalam apa je konflik dunia. Tambahnya lagi, Angkatan Tentera Malaysia di bawah pemerintahan YDP Agong juga tak ada kecenderungan untuk buat apa-apa konflik atau menggunakan kuasanya untuk tujuan tertentu secara tiba-tiba. Seorang lagi pengamal undang-undang, Lukman Sheriff pula kata, Peguam Negara boleh berhujah bahawa tentera bukan di bawah kawalan ‘efektif’ YDP Agong. Walaupun benar YDP Agong adalah Ketua Turus Angkatan Tentera, tapi Peguam Negara mungkin berhujah bahawa angkatan tentera adalah di bawah kawalan efektif eksekutif. Oleh itu, Statut Rom tidak akan membuatkan YDP Agong tertakluk kepada Mahkamah Antarabangsa dan ia juga nampaknya tak bercanggah dengan Perlembagaan. Malaysia dapat banyak manfaat dengan terima perjanjian ni Sebagai sebuah negara yang menentang jenayah perang dan penindasan, Malaysia nampaknya akan menerima pelbagai manfaat apabila menjadi negara ahli untuk Statut Rom ni. Antaranya adalah seperti: Meningkatkan martabat negara di peringkat dunia sebagai negara yang komited menegakkan keadilan dan mempertahankan undang-undang antarabangsa. Melambangkan kesungguhan negara dalam meningkatkan perpaduan bersama-sama masyarakat antarabangsa dengan membawa pelaku-pelaku jenayah antarabangsa ke muka pengadilan. Malaysia sekarang boleh merujuk kepada pendakwa ICC di bawah Artikel 13(A) Statut Rom mengenai jenayah-jenayah antarabangsa yang dilakukan oleh mana-mana pihak jika perlu. Malaysia sekarang boleh bersuara lebih lantang menentang negara-negara yang melakukan penghapusan etnik dan jenayah perang di persidangan tahunan negara-negara ahli. Malaysia sekarang layak mencalonkan rakyatnya sebagai hakim, pendakwa dan pendaftar serta jawatan-jawatan lain di pejabat pendakwa dan pejabat pendaftar ICC."
" How to legally disown a family member in Malaysia...with just 2 steps Recently, a famous Malaysian politician/lawyer permanently disowned his son and granddaughter by publishing it in a newspaper article. We received many questions with regard to this including whether it is legal to do so. The main question would be, why do some people opt to publish their personal family issues for the whole world to see, when they can settle this internally? The reasons can vary from something as personal such as, simply disliking your family member, or it could even be due to more serious issues – like your family member may be involved with crimes or owes money to several loansharks. The latter is something that may affect other family members, who will be then burdened to live with the negative implications for the rest of their lives. However, did you know you can do it permanently with just two steps?? We consulted a Family lawyer regarding this issue, and were told that there are no laws that cover disowning another human being. In other words, there are no laws on abandoning/cutting-off a family member. Instead of laws, there are procedures which can be followed if a family member is becoming too tough to handle. However, take note that this differs in Syariah laws. The matter needs to be taken to court and it shall be complied with Syariah rules and regulations. It is best to consult a Syariah lawyer on matters pertaining to this, as only the courts have the authority to decide on the rightful judgement. But in civil law, there are certain judicial proceedings that can be taken to legally disown a family member. This article will be focusing on civil laws in Malaysia, which apply to non-muslims. So, how exactly can you do this in Malaysia? Step 1: Write a letter You can begin by writing an official letter which is to be read and signed by both parties before it can be legitimised. (In other words, this means the letter needs to be approved and complied by the parties that sign it.) The letter will serve as a notice for the permanent act of disowning your family member. But it isn’t as easy as this all the time. Sometimes, one of the parties (normally the family member who’s getting disowned) may refuse to sign the letter – or worse, the individual cannot be found. When this happens, the next best thing to do is to lodge a police report. There are also circumstances where the families of those who owe money to loansharks are often targeted to pay back the debts left by their family member. This would be another reason why it’s best to lodge a police report to put a stop to the harassment. So, if your family member and you have cooperatively signed the letter – or even if things did not go smoothly...initiate step 2. Step 2: Make a public announcement By public announcement, we mean advertising. But there are some exceptions to this. You can’t simply update your Facebook status stating you want to cut ties with your family member – with 3 people liking it. So, when it comes permanently disowning someone, there is a specific method as to how you can do so. Online social media platforms, such as Facebook, WhatsApp and Instagram will not be enough. Basically, the idea is to make it public, and indefinite. And the best way to do so is to publish it is on a local newspaper. Newspapers differ from social media posts in the sense that, once you’ve printed it on the papers as an article, there are literally no chances on going back on your words. We managed to speak to a spokesperson from the Malaysian Chinese Association Headquarters (MCA) and were told that publishing your decision to disown a family member in newspapers give the general public awareness towards the severing of ties between family members. Hire a lawyer for any legal proceedings. So whether you end things on good terms or not, you may wonder if you could remove a person’s name from a family will (If there is one.) Some families write a will with a certain amount of money/property to be given to the beneficiaries (family members) to receive upon their deaths. However, if there is no will and the family member who has been disowned comes back to contest for the inheritance, this could be a problem. If the person who wrote the will is still alive, it is best to amend the will immediately; before or even after publishing the disinheritance on the newspapers. However, if the maker of the will has passed away, and the estranged family member of yours comes back for his/her share in the will, the best thing now is to consult a lawyer to ensure all legal proceedings and property distribution are taken care of. [READ MORE: Are Malaysian Family Trusts Only for Rich People?]"
"Here's how a group of paintballers changed Malaysian law by bringing the PDRM to court Whenever the government introduces or updates a law, there’s always a chance that a group or community that will be indirectly affected in a bad way, or simply just disagree with it. We’ll usually see these disagreements being voiced out in social media, where it’ll attract a bunch of comments, likes, and shares…….but very rarely any actual change. While some Malaysian laws have been changed due to public lobbying, such as the lack of laws against child grooming (Sexual Offences Against Children Act), there are some issues that may not have enough people involved to successfully lobby for change. This means that your only option would be to sue the government in court to get them to change the laws. Because suing someone (much less the government) involves a lot of effort, time, and cost; you’d have to be pretty darn dedicated to make a change using this option. We spoke to one such group who successfully sued the government and changed the law but, here’s the thing – they weren’t an NGO or a human rights group……they were a group of paintballers. It all started because... Paintball guns were made illegal in 2013 Well back in the day, people doing research on forests needed a fast and effective way to mark trees with paint. They came up with gun-like machines which shoot out paintballs for that purpose, hence why those devices are called paintball markers and not paintball guns. And probably as time went by, someone probably realised that it would be a great idea to shoot these paintballs at each other people for sport. Then voila, the sport of paintball was born. The idea of such a sport spread around quite a bit, and it wasn’t long before it reached Malaysia. It also didn’t take very long for Malaysia to become the biggest paintball hub in the region. And according to Tunku Alizan (the Deputy President of the Malaysian Paintball Federation) who we interviewed, had this to say too: “Pre-2013, the paintball industry in Malaysia was booming. There a lot of paintball parks around Malaysia. People could easily walk-in to the parks and play a game with their friends” – Tunku Alizan the Deputy President of the Malaysian Paintball Federation in an interview with ASKLEGAL Although not all good things come to an end, but it kinda did for the Malaysian paintball community. Somewhere around November 2013, the PDRM decided to classify paintball markers as firearms putting it under the jurisdiction of the Arms Act 1960. Which meant the law would treat a paintball marker no different than a Glock handgun which meant: Individual paintballers can’t own paintball markers. If they really want to, they must obtain a firearm licence – similar to owning a normal gun (which is not easy to obtain). Paintball parks also had to apply for licences to keep paintball markers too. They must have an armoury to store these weapons, similar to armouries in military bases and police stations. For those that have bought and owned a paintball markers before this PDRM announcement, they were required to hand over their markers to the nearest police station. And while you may think that these guys would only need to apply for a gun licence to keep their markers, there’s a catch 22 because not only is the licence hard to get, Tunku Alizan told us that the PDRM made it harder for paintballers to get a licence. In fact while doing our research we found out that PDRM said they will not entertain individual application for licences. [READ MORE: Here's how to legally own a firearm in Malaysia] If you think paintball marker owners had it bad, it was worse for businesses. They couldn’t operate without a licence, and the licensing requirements were strict; for example companies must have a paid-up capital of RM 400,000. If we were to use a football analogy, this would be no different than opening a futsal centre and then suddenly finding out that futsal balls are illegal and businesses must have a licence for it. This also meant that, by definition no one is allowed to walk into a paintball park and play paintball using the park’s markers. Because according to Tunku Alizan, while you need a gun licence to own a particular firearm, you’d need a carry & use permit to use a firearm. So those who enter into paintball parks to play paintball, they technically need a carry and use permit to rent the markers from the park. These actions by the PDRM were obviously not taken well by the paintball community, especially businesses (which also meant livelihood) were halted for a bit. Tunku Alizan and other paintballers didn’t seem to understand the reasoning behind why paintball markers were considered firearms – especially because they’re not lethal at all. “Paintball markers are not lethal. There has been no records of a paintball marker causing death ever” – Tunku Alizan in an interview with ASKLEGAL Nevertheless most paintballers abided by the law despite the disagreement, and realising that there’s strength in numbers formed the Malaysian Paintball Federation (MPF). They also actively communicated with the PDRM and the Ministry of Home Affairs to change the legal position of paintball markers. To their surprise, the ministry did agree with them and they actually said that paintball markers shouldn’t be considered firearms. But unfortunately that’s where the good news ended, the law remained the same and the PDRM still had powers to confiscate and arrest those who owned the markers illegally. From 2013 to 2019 there were reports of people getting arrested for such crimes, and paintball parks getting raided and having their equipments seized by the PDRM. But in the end, the last straw that broke the camels back was... The PDRM raided a paintball park in Cyberjaya Somewhere around April 2018, the PDRM raided a paintball park owned by EAS. The PDRM found paintball markers on the premises and they confiscated them. But what made this raid important is that EAS actually decided to take the PDRM to court instead of just letting things be. The first thing they had to do was to find a lawyer willing to take on their case. So Tunku Alizan connected EAS to a lawyer named Art Harun, whose name you might find familiar. But Art didn’t go at it alone – wanting to form a team, he approached two other lawyers named Fahri Azzat and Shanmuga whom he thought would share his reasons for taking on the case. “We took on the case because we (Shanmuga and I) were asked to come in by Art Harun (the present EC Chairman) when he was still in practice and we thought the issue was interesting.” – Fahri Azzat in an interview with ASKLEGAL But another obstacle had to be faced by this legal dream team...Art Harun was appointed as the chairman for the Election Commission and had to quit legal practice. Nevertheless, Fahri and Shanmuga decided to soldier on – and they still had the help of Tunku Alizan. Oh, and Tunku Alizan isn’t just the deputy president of the Malaysian Paintball Federation, he’s also a practicing lawyer. Although he wasn’t part of the legal team with Fahri and Shanmuga, he served as a bridge between the law and paintball. Here’s how they won the case So these are the arguments that Fahri told us he used in court: Paintball guns shouldn’t fall under the Arms Act 1960 because they aren’t lethal – the Arms Act only covers lethal guns. The Arms Act was enacted during the 1960s so that firearms can be regulated by the state. Because paintball guns were only made around the 1970s, the Arms Act couldn’t have intended to cover paintball guns. Paintball guns aren’t even imitation guns (objects that look like real guns, but don’t actually fire bullets), because they look distinctly different from a real gun. While you might be thinking that these are pretty obvious arguments, it must be said that a bullet-point summary doesn’t reflect the lawyer’s skill and ability to present them – just like how you can’t expect a film critic to direct a successful film. And in the end, the court agreed with them. The High Court declared that paintball markers shouldn’t be considered as firearms and also ordered the PDRM to return the confiscated paintball markers back to EAS. In short, this case managed to redefine what “Arms” were in the law, and that paintball markers were no longer considered “arms”. Shorter still, this means that they managed to change a law that had been in effect for 6 years. Regular people can change the law….with some effort Many of us may be under the impression that laws can only be changed by politicians or in parliament. But what if we told you that regular Malaysians have changed the law on a regular basis? Some recent examples are the tort of sexual harassment, which was introduced when a man sued a woman for accusing him of sexual harassment (and lost), the “legalization” of security boom gates in neighborhoods, which was introduced when a man sued his neighbourhood RA (and lost)… and now the legalization of paintball guns, when a paintball company sued the police (and won). [READ MORE: Malaysians can now sue for sexual harassment thanks to a case involving...coconuts?] [READ MORE: Can neighbourhood guards block roads in Malaysia?] So at the risk of sounding cringey, you CAN change the law as long as you’re willing to put in the time, effort, and money to do it… and accepting the possibility that it might not go the way you want it to. After all, like we’re always reminded when we leave a automated parking lot:"
"5 experiences every Malaysian child grew up with... that can be child abuse [The image above taken from the Kee’s World series. Read the rest on Star2] Based on the Welfare Department’s statistics, 14 child abuse cases happen in every day in Malaysia. If you think this is a high number, a disturbing thought we can add is that these are only reported cases – there may be others that are unreported. Very generally, there are three main laws that cover child abuse… the Penal Code, the Sexual Offences Against Children Act 2017, and the Child Act 2001 that deals with the overall welfare of a child. But here’s the thing – whenever the term “Child Abuse” is used, the first image that comes to mind would be serious physical violence or sexual abuse. However it may surprise you to know that the Child Act 2001 covers some of the common punishments and practices we grew up with – meaning they may actually fall under the definition of child abuse. But before you start accusing your parents of child abuse because they chased you around with a rotan as a child, the law actually takes into account other factors such as severity and persistency (how often it happens). So let’s let’s take a look at what the Child Act actually covers in regards to... 1. Beating and bruising a child (aka Kena Rotan) If you grew up in Malaysia, chances are you have been disciplined by your parents or teachers through some form of corporal punishment (spanking, caning, etc). In most Asian families, corporal punishment is seen as the most ‘effective’ way to discipline a child. However, this form of punishment could amount to child abuse under section 31 of the Child Act 2001. Section 17(2)(a) of the Child Act explains physical abuse as follows: (17) “A child is – (2)(a) physically injured (abused) if there is substantial and observable injury to any part of the child’s body as a result of the non-accidental application of force... that is evidenced by… a laceration, a contusion, an abrasion, a scar, a fracture or other bone injury, etc.” So, if you hit your child with a rotan or hanger (or anything else) and it leaves bruises, marks, or scars on his/her body, this is child abuse under the Child Act. If you’re found guilty of the offence, you’ll be liable to a fine up to RM 50,000, and/ or 20 years imprisonment. For example, a mother was sentenced to a total of 30 years jail and fined RM 100,000 for regularly beating up her 12-year old daughter and 10-year old son with her bare hands and other objects. 2. Leaving a young child alone at home or in the car It may be hard to let your children follow you everywhere you go. So sometimes, you may be thinking of letting them alone at home or in the car when you need to do something very quickly. The law does not provide a minimum age to leave a child alone at home, but if you leave a young child alone when it is dangerous or unreasonable to do so, you can get into trouble under section 33 of the Child Act for “leaving a child without reasonable supervision”. You can easily be fined up to RM 5,000 and/or imprisoned up to 2 years. An incident happened in October 2018, where a woman was charged under section 33 of the Child Act when she left her 6-year old niece at home alone for approximately two hours without reasonable supervision. 3. Neglecting your child No, this isn’t a repeat of the previous point. As a very simplified explanation of the difference, it’s that point #2 involves the child being unsupervised for a short period of time; while this point involves the child is being neglected (physically or emotionally) over a long period of time. As an example, there may be parents that focus purely on earning money to provide a better standard of living for their children, at the cost of spending time and giving attention to them. This can be considered a form of neglect as neglecting a child not only means that you refuse to give a child food, shelter, or clothes – it also means that you do not give them sufficient emotional support. If this causes the child to suffer from a mental or behavioral issues such as anxiety or depression, it is a form of child abuse under section 31 of the Child Act: (31) (1) Any person who, being a person having the care of a child— (a) abuses, neglects, abandons or exposes the child in a manner likely to cause him physical or emotional injury… commits an offence If you were found guilty, you will be liable to a fine up to RM 50,000, and/ or 20 years imprisonment. 4. Threatening and humiliating your child It’s pretty common to scold and yell at your kids. Of course, scolding by itself isn’t illegal. However, if you have gone too far with the humiliation or threats towards your child, and it causes them to suffer from substantial mental or emotional disorders, you can be liable for emotionally abusing your child under the Child Act. The Act does not specifically state that verbal abuse is a type of child abuse, but it does prohibit a person from causing a child to suffer from emotional injuries. Section 17(2)(b) explains ‘emotional injury’ as: (17) “A child is — (2)(b) emotionally injured if there is substantial and observable impairment of the child’s mental or emotional functioning that is evidenced by… a mental or behavioural disorder, including anxiety, depression, withdrawal, aggression or delayed development” There have not been any Malaysian cases (that we could find) where a parent has been charged for verbally abusing a child, but there is a case where a father is said to have emotionally abused his daughter by threatening to end their father-daughter relationship or to kick her out of the house if she refused to follow his instructions. When the daughter (now an adult) sought therapy for depression and low self-esteem, it was determined that many of her psychological issues stemmed from her father’s emotional abuse. 5. Not reporting suspected child abuse Perhaps you may have encountered a situation in a mall, where a parent is beating their child in a way that made you question if it went beyond the boundaries of discipline. But, like many other people who may have also seen it happening, you just…..walked away. There may be many reasons that this might happen… perhaps you don’t want get involved, or you didn’t know it was child abuse in the first place (though you have no excuse now that you’ve read this article). Whether or not you’re legally obliged to make a report depends on what your role is, and what kind of abuse is involved. Under the Child Act, reporting suspected physical or emotional abuse is mandatory if you are a: Doctor Family member Child care provider Failing to do so can make you liable for a fine up to RM 5,000 or imprisonment up to 2 years. However, if you are none of the above, there’s no legal obligation for you to make a report. However, you are legally required to make a report if it involves sexual abuse (which includes grooming) regardless of your relationship to the victim. Even if you’re just a regular member of the public who happened to be walking by and witnessed the event, you can be fined up to RM5,000 for not reporting it. How do I make a report? What we consider good parenting is usually influenced by how we grew up, and chances are pretty high that we’ve experienced at least one of the first four points above. Although the law is clear that physically hitting is unlawful, in reality a lot of parents still hit their children as a form of “discipline” or “tough love”. But the main difference between proper ‘discipline’ and child abuse is the severity and how often it happens- basically the difference between you see a friend at school with light cane marks and another with large purple welts. The general public should report child abuse cases although there are no legal requirements to do so. Here are some ways where you can report any child abuse case if you come across one: Via Talian Nur – Dial 15999 Via Hospital – Bring the child to the nearest hospital and report to the Emergency Department/ Outpatient Department that you suspect the child has been abused Via Police – Make a police report on the suspected abuse, or call 999"
"Are Muslim tourists bound to khalwat rules in Malaysia? For most tourists who come into Malaysia, sharing an accommodation is quite a common thing to do as it doesn’t make sense to rent two rooms when you can share one. However, Muslim tourists may run into a problem with sharing rooms because of Malaysia’s Khalwat laws, that prohibit Muslims of opposite genders from being in close proximity to one another in private or secluded areas. So because this is a Malaysian law that applies to Malaysian Muslims, you may be wondering….does it apply to non-Malaysian Muslims as well? Yes, khalwat laws can apply to foreigners as well. There are cases of foreigners being caught for Khalwat in Malaysia, but most of the time, they are Muslims who have been in the country for a longer period – mostly on a work permit. Before we go further, let’s establish several things first. Syariah laws governs the offence of khalwat and this differs in each state. We’ll be using the Selangor Syariah laws as a point of reference as a basis here, but the laws for most states don’t differ so much as well. But if you want to be sure, we’ve linked 3 other states here – Johor, Pulau Pinang, and Perak for your reference. Khalwat carries the meaning ‘close proximity’ as we mentioned above. The offence carries a maximum prison term of two years. Also, the Federal Law and Islamic Laws are two different things. So take note, that Khalwat is a “state crime” and is not governed by any statute in the Malaysian criminal law. We’ll be referring to the definitions for khalwat in the Syariah Criminal Offences (Selangor) Enactment 2003, where the procedure to raid a place and sentence someone for syariah offences is laid out under Section 11: “(1) Any - (a) man who is found together with one or more women, not being his wife or wives or mahram; or (b) woman who is found with one or more men, not being her husband or mahram, in any secluded place or in a house or room under circumstances which may give rise to suspicion that they are engaged in an immoral act shall be guilty of an offence… As a summary of Section 11, it’s considered Khalwat if the following factors are present: A guy and girl must be involved They must be caught in a secluded place They must not be husband and wife, or family members They must be alone under suspicious circumstances So if you’re a tourist planning to travel in Malaysia, don’t start booking multiple rooms yet because... The hotels will protect your privacy. In most cases, tourists who visit Malaysia for a short period of time, are rarely affected by this. For the most part, travelers don’t need to worry because hotels are bound by the Personal Data Protection Act 2010, which protects the privacy of guests from any authorities. Religious authorities are prohibited from obtaining the name list of guests in a hotel. This is stated under Section 8 of the Act which states: “Disclosure Principle Subject to section 39, no personal data shall, without the consent of the data subject, be disclosed” Therefore, hotels cannot simply give out personal information such as the details of the guests who have lodged in. The extent of Section 8 is explained in Section 39 of the Act whereby, personal data and information can only be disclosed at the consent of the individual involved. Disclosure can only be made under certain circumstances such as, when there is a court order, or if its purpose is to prevent/detect a crime. So, although you can rest assured that your hotel may not report you, what if you get into trouble and the best way to get out of it is to deny you’re Muslim. What if you deny being Muslim even if you are one? If you think you can get away from trouble by saying you’re a non-Muslim...you should know that this is an offence and that there is a law for it. You can be guilty of the offence under Section 5 of the Syariah Criminal Offences (Selangor) Enactment 1995 which states that: “Any person who declares himself to be a non-Muslim so as to avoid any action from being taken against him under this Enactment or any other Enactment in force in this State shall be guilty of an offence and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both.” The offence carries a hefty fine of less than RM 5,000 or jail term not exceeding 3 years or both. However, there are steps which can help you if you are ever caught for a state crime as such in Malaysia. If you get into trouble, find a Syariah lawyer. People have been mistakenly charged for crimes they did not commit, and have had legal action taken against them. This is common and can happen in any country. But in this case, it’s best to get a Syariah lawyer as Khalwat cases can only be brought up in Syariah courts, and not civil courts. This is because these matters are dealt with differently by each state. If you feel that your rights have been infringed or if you have any questions with regards to state laws in Malaysia, we have included the link here for you to find a Syariah lawyer. If you’re wondering if you can be caught for Khalwat if you’re a non-Muslim traveling with a Muslim friend... [READ MORE: Can a non-Muslim get in trouble for khalwat in Malaysia? ]"
"4 children go missing every day in Malaysia, here's what you can do about it... From 2012 to 2017, there have been 482 cases of children under 12 going missing in Malaysia, with 2017 statistics showing that an average of 4 children go missing each DAY. Although these numbers include teenagers who have run away from home, these statistics also include children who have been kidnapped for purposes of ransom, child trafficking, or sexual exploitation – with some never returning alive or even found at all. Missing children are generally a high priority for the authorities, so whenever a young child goes missing, you’d find that the police issuing something called a NUR alert on Facebook or the news. The NUR Alert is basically an emergency early warning system for missing children in Malaysia aged 12 and below. Just last Monday (4th March), PDRM had announced a NUR Alert for a missing 3 year old girl named Nur Aisyah Aleya Binti Abdullah. The NUR Alert basically comes under the National Child Protection Policy and Action Plan, which is a policy created by Malaysia in acknowledgement of the United Nations Convention for the Rights of Children (CRC). The aim of a NUR Alert is so every child aged 12 years and below receives protection from exploitation, violence and neglect through alerts that are sent out to enforcement, media and broadcasting agencies. The police rely on tip-offs by members of the public to help find the missing child – the more people on the lookout, the better the chances of finding the child safe and sound. Seems then that the purpose of NUR Alerts are clear – but how and when did it all start? There’s a tragic history behind it... It stands for National Urgent Response (NUR) Alert, but it was initially named National Urgent Response Information Network (NURIN) before it was shortened. The initial name for the system points to how it started following the shocking kidnapping and murder of eight-year-old Nurin Jazlin back in 2007. The idea for such a system was first proposed by Nurin’s uncle and a group of bloggers who presented a proposal in 2008 to then Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil. In 2011, three years after it was first proposed, the system was finalized and begun implementation. Our NUR Alert system is actually based of the successful “AMBER Alert” program in the United States, which similarly was named after the kidnapping and murder of 9 year old Amber Hagerman (in Arlington, Texas) back in 1996. The AMBER Alert is also an acronym for America’s Missing : Broadcasting Emergency Response. According to Timothy Griffin, Associate Professor of Criminal Justice at the University of Nevada, the AMBER Alert system has a 20% success rate for the recovery of abducted children since it’s inception in 1996. There isn’t much information on how successful our NUR alerts have been, but what is clear is that our authorities are constantly looking to improve upon it. In 2016, PDRM partnered up with Facebook to help spread NUR alerts on Facebook. Then just last month, PDRM teamed up with GRAB to rope in Grab drivers and passengers in the search for missing children. But the latest initiative involving NUR alerts is one that involves us all... Here’s how you can be notified of a NUR Alert immediately… On 1st March 2019, the Malaysian Communications and Multimedia Commission (MCMC) announced that NUR Alerts will also be made via Multimedia Messaging Service (MMS) to our phones and would contain the image and identity of the missing child. But, you’ll first have to subscribe to this free service and it is shown how you may do so below. Most of us have been sharing news of missing children by ourselves on social media should we come across it. While social media may be a good way to spread information quickly, the information we share could be wrong or outdated. And though we may share it with good intentions, sometimes spreading such inaccurate information can do more harm than good. Not only is false information misleading, it can lead to a false panic as well – like this incident involving 1 Utama Shopping Center : Time is also critical factor when it comes to missing children since according to the US National Center for Missing and Exploited Children (NCMEC), the first 48 hours after a child has gone missing are the most critical for any case. Perhaps the best way to go about it would be to subscribe to an official source where information is verified and updated immediately. Which is why the new MMS push-notification service for NUR Alerts by our mobile service providers would be the FASTEST and most EFFICIENT way for us to be notified when a child has gone missing. We need to do more by keeping a lookout... It matters to note Malaysia does have tough laws on kidnapping – anyone found guilty of kidnapping could face the death penalty or life in prison with whipping (Section 3 of the Kidnapping Act 1961). Yet deterrence alone doesn’t seem to be enough since the kidnapping of young children continues to happen – which means we need to stay vigilant. Remember the NUR Alert of Nur Aisyah Aleya we mentioned at the beginning of this article? Well just a couple of days after the alert was publicized, it was announced the search for Nur Aisyah had come to a tragic end. According to initial investigations, a couple arrested in relation to the case confessed they had dumped the child’s remains in the Gunung Raya jungle area after the child suffered a seizure while bathing. The search for Nur Aisyah may have come to a sad conclusion, but many young children remain listed on PDRM’s Official Portal for Missing Children. It goes to show that NUR Alerts are a matter of life and death. If more people were keeping a lookout, maybe we could prevent the next tragedy. You can start by urging people you know to sign up for the NUR Alerts. If you spot a familiar face or suspicious activity, you should contact the Talian NUR/ KASIH hotline at 15999 or the specific number included in every NUR Alert."
"Can condo managements in Malaysia be sued for letting your condo become run down? The weather’s perfect and you’re thinking of going for a swim. You get to the pool, all ready to jump in when you notice that the pool looks disgusting. Is that moss? You then decide to go back to your home, and you remember that you have to take the stairs because the lifts aren’t working. As you walk up, you notice that the walls look like they haven’t been painted in 50 years. You’ve been paying your maintenance fee and sinking funds religiously, but now your beautiful condo is the most dreary looking one in the area. We often hear of stories like this. Managements push residents to pay their dues on time. Residents then end up paying hefty sums each month, but a lot of the time they don’t get what they pay for. If you can relate to this, you also may have wondered if you can do something about it, other than just complaining to the management. Firstly, it’s important to know what exactly you’re paying for. Maintenance fees are used for the upkeep of common areas and facilities, such as the pool and gym. The sinking funds, on the other hand, are used to refurbish the property whenever necessary. Your condo management must perform certain duties It’s your condo management’s job to ensure that your condo looks presentable and that its main facilities function well. They must also ensure that the place is safe to live in. If there’s moss growing all over your walls or if half the lights in the lobby don’t work, your condo management is responsible to fix the issue. Or if there’s a guard house in your condo but you never see a guard, your condo management is shirking from its duty of keeping the residents safe. The Strata Management Act 2013 is the law that governs matters pertaining to maintenance of condos, apartments, flats and gated and guarded communities. Section 21 (1) of the SMA 2013 lists all the duties of the a condo management. Some of them are: (a) to properly maintain and manage the building or land intended for subdivision into parcels and the common property, and keep it in a state of good and serviceable repair (i) to do such other things as may be expedient or necessary for the property maintenance and management of the buildings or lands intended for subdivision into parcels and the common property. If you’re wondering what “parcels” up there means, those are the individual units in a condo. So the next time the guy at the management office tells you it’s not his job to get someone to change the torn net in the badminton court, tell him to look at Section 21. After reading all this, you may be wondering if you can choose not to pay anything to your management because they aren’t doing their job. You can’t. You are under a legal duty to pay up and this can be found in Section 25(1) of the SMA 2013. If you fail to pay, your management could sue you instead. [READ MORE: Why you should pay your maintenance fees and sinking funds.] What exactly can your monthly dues be used for? The law has a specific list of what your maintenance fees and sinking funds can be used for. Your condo management is also obliged to create separate accounts for these payments. Failure to do this will incur a hefty penalty under the SMA 2013. We’re talking a huge fine and maybe even jail time! Section 23 (3) of the SMA 2013 lists in detail the things that the maintenance fees is solely to be used for. As the list is pretty descriptive and long, here are the main ones: (a) maintaining the common property in good condition on a day-to-day basis; (b) paying the expenses incurred in providing cleaning services for the common property, security services and amenities for the occupiers of the building; (f) carrying out inspection of all electrical wiring systems of the common property and replacing or repairing any faulty wiring systems, if any; Section 24 (2) lists the things that the sinking funds must be used for. Some of them are: (a) the painting or repainting of any part of the common property; (c) the renewal or replacement of any fixture or fitting comprised in any common property; (d) the upgrading and refurbishment of the common property; Common property, as seen above, are the parts of your condo that are shared by all the residents. Some examples are the floors, the stairs and parking lots. In short, your condo management can use the maintenance fees and sinking funds only for the purposes of beautifying your condo or making it a more comfortable place to live in. Using the funds for something else can amount to a misuse of funds. So now, what do you do if the management slacks and your money seems to be going to waste? You CAN sue your condo management So, just like how your condo management can sue you for not paying your maintenance fees and sinking funds, you can also sue them for failing to perform their duties. Section 17 (3) of the SMA 2013 states: The joint management body can sue and can be sued. But before you sue, you need to know exactly who you’re suing. There are actually many layers to your condo management. You would have come across names such as Joint Management Body (JMB) and Management Corporation (MC). These are the people you can sue. They are the ones who make all the decisions pertaining to the upkeep of your place. What about the people running the management office? They’re doing just that: running the management office. They have been put there by the JMB or MC to carry out their duties on their behalf. What’s the difference between the JMB and the MC? The JMB exists only for as long as the strata titles haven’t been transferred to the purchasers or in simpler words, till you have received the title to your property. Once the strata title has been transferred, the JMB will be dissolved and the MC will be formed. The MC has the same duties as its predecessor, which can be found in Section 59 (1) of the SMA 2013. Just like the JMB, Section 39 (3) of the Strata Titles Act 1985 states that the MC may sue and be sued. As long as the JMB or MC has failed to perform their duties, they can be sued. Who you sue just depends on whether you have received the title to your property or not. It’s important to note that going to court is always your last option and when you can’t get help through other means. There’s a Strata Management Tribunal which you can bring your claims to. The Tribunal can hear disputes involving tenants who don’t pay fees or managements that don’t perform their duties. A detailed list of the types of disputes that the Tribunal can hear is in Schedule 4 of the SMA 2013. The claims that are brought to the Tribunal cannot exceed RM 250,000. You can go to court only if you have NOT taken your claim to the Tribunal before, or if the Tribunal struck out your claim or it was withdrawn. Your condo management isn’t responsible for everything You can only sue your condo management for something that comes under their duties and responsibilities. Things that need to be fixed within your own house, such as a leaky pipe in your kitchen is your responsibility, and not your management’s. However, if the walls in your home are damp because the water tank above you is leaking, your condo management will have to take care of that. As long as they come under the duties of the management and it’s for the common use of all residents, you’re good to go. Don’t like the pattern of the tiles on your corridor? You’ll just have to live with that. Or find a new place. [READ MORE: Living in a Malaysian apartment – Who is responsible when things get broken?]"
"6 things you didn't know are illegal to take out of Malaysia This article talks about commercial export of goods – But let’s imagine this scenario, where you’re a local student leaving Malaysia to study abroad. You’re so worried you’ll miss Malaysia that you made sure your bag was stuffed with all the local delicacies and Malaysian household items you could think of, like...rattan baskets. Little did you know there are instances where some of the items could be prohibited from being exported, and you’ve been stopped by the customs officers at the airport. So, we happen to look through the Customs (Prohibition of Exports) Order 2012, and came across several unexpected things that are illegal from being exported out of Malaysia. But before that, let’s clarify something… Who controls imports and exports in Malaysia? So, we have several bodies that are in-charge of what goes out of the country. The main bodies are the Royal Malaysian Customs Department (RMCD), and the Ministry of International Trade and Industries. (MITI) Their main job is to control the imports and exports in Malaysia, and have the authority to investigate and even arrest in the event of crimes such as smuggling items into the country or sending them out. There are 2 categories of controls on items for export: Items that are absolutely prohibited from being exported to all countries, for example turtle eggs, rattan, arms and related materials, petroleum and petroleum products; and Items that require an export licence and are subject to government control, for example livestock and livestock products, grains, minerals and toxic or hazardous materials. The Customs Act 1967 and the Strategic Trade Act 2010 provide the penalty for violation of export controls. The Customs Act states: “A jail sentence of between two years and life imprisonment, depending on the severity and type of offence... and a fine of between 10,000 ringgit and 30 million ringgit.” With punishments that severe and since we don’t want to end up in jail someday, we’ve listed down a few prohibited items for you to take note of too. So, here is our list with no particular order... 1. Rattan aka rotan This is probably a good answer as to why we have been disciplined pretty well as we were growing up. Rattan is absolutely prohibited from being exported out from Peninsular Malaysia. Due to a high demand for rattan in many countries including Europe, which would manufacture the raw materials into finished products, such as furniture, craftwork, etc. The ban was imposed to stimulate rattan-based industries in Malaysia and to increase the sales of finished rattan products to be exported from the country.This prevents uncontrolled harvesting , and creates a market for local products. So, this does not mean rattan furniture or baskets cannot be exported – but its more of the raw material that are taken into account when it comes to illegal exports. 2. Cockles Maybe this is why the price of Char Koey Teow has escalated over the years. But the reason behind why cockles have become expensive is rather sad. Based on a research done by the Fisheries Research Institute, the 3 main cockle breeding states were affected by pollution, which led to a sharp drop in harvest over the years. Due to this, limitations on exports have been tightened, and a permit needs to be obtained before doing so. Based on Section 40 of the Fisheries Act 1985: (5) An application for a permit to import and export any live fish shall be made in accordance with the Malaysian Quarantine and Inspection Services Act 2011. Therefore, a permit is needed to bring out cockles from Malaysia. You can apply for one from the Malaysian Quarantine and Inspection Services for one. 3. Orchids So, if your girlfriend lives abroad and you want to send her flowers on Valentines Day, you might want to check on what kind of flowers are subject to export prohibitions. There are lots of plants that are prohibited from being exported from Malaysia, but this one caught our attention. The odd inclusion here was orchids. The Customs Act is read concurrently with Section 2(1) of International Trade in Endangered Species Act 2008. This Act also carries a hefty sum under Section 10 for the offence of exporting any orchid species that is stated in the schedule: “Any person who imports or exports any scheduled species without a permit commits an offence and shall, on conviction, be liable- (a) where such person is an individual, to a fine not exceeding one hundred thousand ringgit for each animal, plant, or readily recognizable part or derivative of the animal or plant...or to imprisonment for a term not exceeding seven years or to both;” If you’re wondering “Why orchids?”, it’s probably because certain species’ are endangered. Therefore, they’ve become subject to these heavy penalties if anyone is found guilty for smuggling this plant from Malaysia. 4. Poultry Some of you might ask, “Does this mean a chicken sandwich cannot be brought out from Malaysia on flight?” – Don’t feel bad for asking, one of our writers did as well. You’re not alone. To clarify, this doesn’t apply to chicken sandwiches or canned chicken slices , but rather refers to whole chicken/its carcasses. The Customs Act 1967 isn’t the only Act that states this, but so does Section 14(1) of the Animals Act 1953. It states: “(1) No person shall export any animal or the carcass of any animal except in accordance with a licence in that behalf issued under this Act and in accordance with the conditions of such licence and such conditions as may be prescribed.” The Act carries a punishment under Section 14(3) where a fine of RM 500 or imprisonment for up to 6 months or both shall apply, if found guilty. And of course, this also depends on whether the country you travel to has its own restrictions on this. 5. Military clothing and equipment Military wear and items – ie; nuclear materials, lasers, navigation, sensors and avionic equipment – require relevant licenses/permit to be exported from Malaysia. The Strategic Trade Act 2010 (STA) covers this area and was enacted to curb exports and shipment of strategic military items. This also protects the country as military related items are highly confidential. So for national security reasons, you cannot export these gadgets and outfits to...let’s say your aunty in Singapore. You’ll need a special permit to export military items, but the process of application would depend on whether you are a relevant body/person which is recognised by the Ministry of International Trade and Industries. 6. Sugar and rice Some of us might even go to the extent of considering to pack raw materials such as rice, because you don’t know if it’ll taste as good abroad as it does back home. The sad news is, these items are prohibited from being exported from Malaysia. However, as per the Malaysian Customs rules, it’s not entirely illegal to export sugar and rice from Malaysia. You can obtain a permit to export sugar from the Ministry of Domestic Trade, Co-operatives and Consumerism. Link attached here. For rice on the other hand, Malaysia is the 14th biggest rice importer in the world. Due to a shortage of homegrown paddy here, export restrictions have been tightened. You might be able to sneak your favourite putu piring into the flight, but you’d probably be stopped by customs officers in the country you’re landing, depending on their restrictions. However, if you were carrying bags of sugar and rice flour to make your putu piring from scratch, it’s highly doubtful if you’d be able to pass through the Malaysian customs officers without it being confiscated. Remember, just because you can take it out...doesn’t mean you can bring it in. That’s pretty much what we found out from reading the Customs (Prohibition of Exports) Order 2012. If you’re interested to know more and to avoid heavy fines and penalties, do check out the Royal Malaysians Customs site and the Act that has a non-exhaustive list. If you’re really keen on exporting these items or need to send it elsewhere in big amounts, perhaps it’s best to get a permit from the authorities before doing so. The best case is, your item would most likely be confiscated. And the worse case would be if you’re charged or taxed heavily as a penalty. And of course, if you’re exporting these items commercially, the case is completely different."
"Boleh ke simpan haiwan peliharaan dalam apartmen? [Link here for the English version: Can you legally keep pets in Malaysian apartments? ] Kalau korang tinggal di flat, kondominium atau apartmen, dah jadi perkara biasa bila peraturan pengurusan kediaman melarang korang dari memelihara haiwan peliharaan. Diorang buat macam tu sebab risau kalau nanti akan ada masalah bising, bau dan sebagainya yang akan menggangu jiran-jiran dan penghuni lain. Tapi macam mana kalau korang memang tetap nak simpan haiwan peliharaan yang korang dah anggap sebagai keluarga? Kami dapat beberapa soalan daripada pembaca yang sebenarnya keliru sama ada haiwan peliharaan ni dibenarkan di bangunan kediaman mewah. Ada juga berita dan laporan beberapa tahun lepas yang kata korang sebenarnya dibenarkan untuk ada haiwan peliharaan. Tapi, ada juga pemilik rumah yang kata haiwan peliharaan tetap dilarang di kondominium dan apartmen. Inilah yang membuatkan ramai keliru, kerana… Jawapannya bergantung pada daerah mana yang korang tinggal Di bawah Akta Pengurusan Strata 2013, pihak berkuasa tempatan mempunyai kuasa untuk meluluskan peraturan sama ada boleh atau tak menyimpan haiwan peliharan dalam bangunan strata. Untuk lebih faham, bangunan strata termasuklah bangunan mewah (kondominium, apartment, flat) dan berpagar dan kawasan komuniti yang dikawal. Ini bermakna majlis-majlis tempatan yang berbeza boleh mempunyai peraturan yang berbeza tentang isu memelihara haiwan peliharaan di bangunan strata. Kami juga ada hubungi beberapa pihak berkuasa tempatan di Lembah Klang untuk dapatkan peraturan diorang. Majlis tempatan yang membenarkan: Dewan Bandaraya Kuala Lumpur, Majlis Perbandaran Subang Jaya Majlis tempatan yang tak benarkan: Majlis Bandaraya Petaling Jaya, Majlis Perbandaran Ampang Jaya, Majlis Perbandaran Kajang Walaupun macam tu, bukan semua jenis haiwan peliharaan dibenarkan. Sebagai contoh, kalau korang tinggal di Kuala Lumpur, peraturan hanya membenarkan korang memelihara anjing kecil tertentu, macam – Miniature Pinscher, Bichon Frise, Pekingese, Papillon, Poodle (Toy), Japanese Chin, Maltese, Pomeranian, Chihuahua. Kalau korang tak pasti sama ada haiwan peliharaan korang tu dibenarkan ke tidak, korang bolehlah cuba hubungi majlis tempatan korang untuk tahu lebih lanjut. Tapi, walaupun majlis tempatan benarkan korang simpan haiwan peliharaan dalam kondo, prosesnya tak semudah yang korang fikirkan. Misalnya, DBKL beritahu kitorang yang korang kena dapatkan lesen untuk haiwan peliharan korang. Bagaimanapun, korang mesti kena dapatkan kelulusan bertulis dari pengurusan kondo masing-masing dulu, sebelum boleh buat permohonan. Kalau pengurusan kondo masih berkeras tak benarkan korang ada haiwan peliharaan, korang boleh cabar larangan tu dalam Tribunal Pengurusan Strata (SMT). Korang boleh buat permohonan tu di sini. Bila cabaran tu berjaya, tribunal akan keluarkan peraturan pengurusan yang melarang korang dari memiliki haiwan peliharaan tu. Walaupun begitu, tak semua pihak boleh bawa tuntutan tu ke tribunal. Contohnya, kalau korang cuma penyewa di hartanah tu, korang mungkin tak boleh bawa isu ni untuk tindakan lanjut. Korang boleh dapatkan maklumat yang lebih lagi dalam artikel kitorang ni: [BACA LAGI: Bolehkah pihak pengurusan kondo di Malaysia masuk dan sita harta benda kepunyaan kita?] Ada dua lagi syarat… Walaupun korang diberikan kebenaran simpan haiwan peliharaan dalam unit rumah, kena ingat juga yang ia datang dengan tanggungjawab. Undang-undang kecil 14, Jadual Ketiga Peraturan-Peraturan Pengurusan Strata (Penyelenggaraan dan Pengurusan) 2015 dah menyenaraikan tanggungjawab yang korang MESTI ikut. Kalau tak, korang berisiko kehilangan lesen kalau pengurusan kondo buat laporan terhadap korang. 1. Haiwan peliharaan korang mesti tak buat gangguan atau menyakitkan hati orang Ia cukup mengganggu kalau haiwan peliharaan korang buat masalah kepada orang lain dan rosakkan kebahagiaan diorang. Sebagai contoh, haiwan peliharaan akan buat gangguan dan menyakitkan hati (annoyance) bila: Kerap buat bising macam menyalak Menyebabkan kerosakan kepada harta benda, macam mencakar dinding atau rosakkan tanaman bunga Menyebabkan bau yang mengganggu kawasan awam macam lif dan tangga Berjalan atau tidur di kawasan orang lain Jatuhkan tong sampah Kalau haiwan peliharaan buat gangguan dan menyakitkan hati penduduk lain, korang boleh diminta untuk keluarkan haiwan peliharaan korang tu dari bangunan di bawah undang-undang kecil 14 (2) Peraturan-Peraturan Pengurusan Strata 2015. Jika korang gagal buat macam tu, pihak pengurusan boleh ambil apa-apa tindakan untuk keluarkan haiwan peliharaan tu dari bangunan. 2. Haiwan peliharaan korang mestilah tak menyebabkan sebarang risiko kepada keselamatan dan kesihatan pemilik rumah lain Korang mesti pastikan yang haiwan peliharaan korang tak mendatangkan bahaya terhadap orang lain. Contohnya, haiwan peliharaan korang mesti tak bawa sebarang penyakit yang boleh merebak kepada orang lain. Korang juga kena pastikan haiwan peliharaan korang tak agresif. Kalau anjing korang menyerang, menggigit, mengancam atau mencederakan orang lain tanpa provokasi, lesen anjing korang boleh ditarik balik dan korang kena keluarkannya dari kawasan bangunan tu. Korang juga mungkin akan kena saman, sebab haiwan peliharaan korang dah menyebabkan kecederaan orang lain. [BACA LAGI: 6 common things some Malaysian pet owners do - that are actually illegal!] Jadilah tuan yang baik Dengan ada lesen, tak bermakna korang boleh abaikan tanggungjawab sebagai pemilik haiwan. Masih ada lagi beberapa perkara asas yang korang kena ikuti, terutamanya bila korang tinggal di kondominium berkepadatan tinggi. Di sana terdapat beberapa tanggungjawab asas sebagai pemilik haiwan peliharaan, tak kiralah di mana korang tinggal. Sentiasa bersihkan najis haiwan korang Vaksin haiwan peliharaan korang Latih haiwan perliharaan korang Simpan haiwan perliharaan korang di bawah pengawasan yang betul masa berjalan-jalan"
"Can you go to jail for lying on your resume in Malaysia? The Star has recently highlighted the story of a man in Singapore who used fake qualifications to get jobs at 38 different companies over 4 years. The man was sentenced to 11 months' jail, and fined $1,600 (RM4,817) for his crimes. Thing is, people getting hired based on lies on their resumes are a global problem that could happen even in top companies. Yahoo US also parted ways with its CEO after just 4 months when it was discovered he lied about his second degree in computer science. Which makes us all wonder… what could happen if you were to lie on your resume or fake qualifications here in Malaysia? Well a report suggests only 25% – 41% of Malaysian employers conduct background checks to verify a job applicant’s educational or employment history. So perhaps we were to be *cough* “inspired” by all the recent scandals on fake degrees and lie on our resumes or job interviews into that new job/promotion. After all, what’s the worst that could happen? These people had the same idea… Some Malaysians who tried to fake it... Back in 2016, a story of a ‘Dr Pharmacist’ circulated– a 28 year old “Datuk Seri Dr” who claimed to be a doctor and pharmacist, was admitted as a life-member of the Malaysian Pharmacist Society (MPS) and as a member of other medical associations. Long story short, after people were duped of their money it was discovered he faked his education credentials and personal information so was never a real doctor at all. If you think that this story of “Dr Pharmacist” is bad enough, a lady in the UK worked for more than 20 years as a doctor before it was discovered she lied about her degree. Also in the case of Azman Idrus v SGA Services [2015] , the employee had applied for the position of “Admin, Human Resources and Legal Advisor” at SGA Services. During the job interview he presented himself as a qualified lawyer with experience, and continued to do so whilst working with the company. Almost 3 years later, after having repeatedly been asked to provide proof, Mr. Azman was unable to do so and confessed to faking it. He was fired and went on to sue for “unfair dismissal” only for the courts to decide he was validly fired. Kinda reminds you of Mike Ross from the TV show Suits doesn’t it? So what would happen is… You could be FIRED...obviously. If you lie on your resume or interview, you misrepresent yourself to employers. Our courts have in many cases repeated that misrepresentation is a just cause and excuse for dismissal (means its a valid reason to fire you). Remember the case of the fake lawyer we mentioned above, here’s what the judge said : “Misrepresentation is a form of misconduct which may lead to the dismissal of the employee, particularly where an employer hired an employee based on the belief that he had a particular qualification needed for a job.” - Judge in Azman Idrus v SGA Services (M) Sdn Bhd [2015] 2 MELR 722 But it isn’t just lying about qualifications, lying about job experience, past salaries and working knowledge could also get you in trouble – as seen in Khoo Kim Loang v. Kim Siah Electric (2018). In this case Mr. Khoo was fired just 3 days after getting hired when it was discovered he had completely made up job experiences and pay slips from a company that doesn’t exist. He tried to challenge his firing but the courts compared his resume to the one in an earlier case also involving him [Khoo Kim Loang v. Shock Media Studio (2018)] . The court found Mr.Khoo had used an almost similar fake resume in both cases, and once again highlighted that Mr. Khoo’s dishonesty was a valid reason for his quick termination. And if you think you’re safe because you’ve been with your company for many years, think again. In Kamaruddin Beedin v Indah Water Konsortium [2014], Mr. Kamaruddin included a fake certificate when he applied for a promotion in the company and was then fired. When Mr. Kamaruddin sued for unlawful dismissal, but the court found it was fair to fire him although he had been with the company for 12 years ! It could also get worse…much worse. When you specifically fake education qualifications, things could get even more dramatic if your employers are extra salty and decide to lodge a police report. Just so nobody gets confused, there are 3 different kinds of degrees that could get you in trouble. But only 1 of them is illegal for now. Degree from an unrecognized college. Fake degree from a fake college. Fake degree from a real college (illegal since it’s known as forgery). Forgery – Fine and/or up to 2 years jail The act of forging a college degree is basically like printing fake money. You could be charged under Section 465 and 471 Penal Code for forgery. (or even under Section 468 with up to 7 years jail – forgery for cheating). [ READ MORE : Some degrees aren't recognized in Malaysia, but they aren't fake. Here's how it works…] Cheating – Fine and whipping with between 1 to 10 years jail. In more extreme cases, you could also be charged for cheating under Section 420 Penal Code like in the case of the Universiti Sains Malaysia (USM) lecturer who faked his Phd. In this case, a 51 year old man applied to be a lecturer at USM using forged qualifications from the UK and US. By the time his lies were discovered, it had caused USM to lose nearly RM 200k in losses for having paid his salary. You’ll also find it harder to get jobs in the future… Legal consequences aside, lying on your resume could also severely damage your professional reputation especially in the age of social media and digital job platforms. News travels fast so when future employers find out you’ve been dishonest previously, chances are they are going to swipe left on you faster than your ex on Tinder."
"Malaysian soldiers sometimes go to war without guns...here's why If you’ve watched the movie PASKAL last year, you may remember a scene where a soldier was on a military mission with no weapons. In that scene, the soldier was engaged by militants, and had a hard time trying to fight back – since he had no weapons. It was literally a case of bringing nothing to a gun fight. The scene wasn’t based on fiction, but it was a dramatisation of a military mission in Angola. And just like in the film, Malaysia sent our soldiers there for missions without weapons. But why would Malaysia do such a thing in the first place, especially when it would be dangerous to do so? Well it wasn’t because they were incompetent (nah, they’re one of the best in the region) or under budget, but they were they were ordered to do so. Which basically means it was an active decision to send our troops unarmed. And here’s why Malaysia did such a dangerous thing in the first place... We sent them to keep the peace If we were to use the words “military mission”, we’d probably conjure up images in our heads of patriotic soldiers defending the country from a villainous invading force – these missions would involve fire fights, tanks, and fighter jets blowing up buildings. But, this isn’t always the case. As we’ve mentioned before, sometimes soldiers are even ordered not to carry weapons on missions. Such missions are known as peacekeeping missions, and it basically defines itself – they’re military missions for keeping the peace or creating the peace. And it’s purpose isn’t the only distinguishing factor of peacekeeping military missions, but what peacekeeping soldiers wear are very different from normal soldiers. Normally, soldiers wear camouflage uniforms which allows a soldier to blend into the environment. That’s why soldiers wear green in the jungle or they wear brown-ish colours in the desert – blending into the environment with the help of such unique colour blends and patterns helps soldiers avoid detection by the enemy. But in peacekeeping missions, soldiers are required to always wear bright blue berets or helmets. Why? So that they’re easily identified. But isn’t that counter intuitive since the enemies can spot them? Well not exactly, because these soldiers aren’t always sent to fight... ...they are sent for 4 types of missions: Observation missions. These are basically missions where soldiers are tasked to only observe what’s going on and report it back. This would be like when a country just got out of war and they’re having elections for a new leader. The peacekeeping soldiers would observe what’s going on (whether there are commotions in the polling centres, or maybe there are some corruption going on), and then report it back to the UN. Bufferzone missions. These are missions where the peacekeeping soldiers act as buffers between two opposing factions. They are basically acting as a very passive referee in essence. Rebuilding missions. This would be where peacekeeping soldiers have a more active role. In addition to observing and reporting, they are tasked with helping to rebuild the country. So missions could include helping a country to set up new security forces, build infrastructure etc. Peace enforcement missions. Here’s where things get heated up. In these type of missions, instead of maintaining peace which is existent, soldiers are tasked with actively trying to create peace. But out of all these 4 missions, soldiers are only sent without weapons for observation missions. --- remember the Angola mission we told you about at the beginning? That was an observational peacekeeping mission, that’s why the soldier we mentioned earlier (Leftenant Commander Anuar) wasn’t carrying any weapons. We also send our forces for peacekeeping missions with weapons We don’t always send our troops for missions without weapons. We do send our troops for missions which aren’t merely observational. In such missions our troops are allowed to carry weapons for protection and to conduct missions. But they can only use their weapons according to well established rules of engagement. For example according to International Humanitarian Law principles, attacks are only allowed against military objects (buildings, equipments and/or soldiers), and if you wanna know more about these rules, just read this guidebook here. Oh and sometimes in the case of peacekeeping, the rules of engagement could depend on what the United Nations says. Malaysia has actually sent our troops for armed peacekeeping missions before. In 1993, Malaysia sent soldiers from our Royal Malay Regiment to Somalia. The mission was called the United Nations Operation in Somalia (UNOSOM II), and it’s purpose was to restore order in Somalia because of a civil war. To achieve that purpose, American soldiers conducted a mission to capture a warlord, and during that attempt the American soldiers were pinned down. Fortunately for the American troops, our soldiers from the Royal Malay Regiment was at a base nearby – and they were sent into the middle of a fire fight to rescue them. To give you an idea of how dangerous that mission was, we actually lost one soldier named Corporal Mat Aznan due to a strike by a rocket propelled grenade. If you’re thinking “Eh wait, this story sounds familiar”, it’s probably because it was the plot of the movie Black Hawk Down. The movie while may be a cinematically well directed film, but it drew criticisms from Malaysians – especially because our rescue efforts and sacrifices were not depicted in the film."
"Korang ambil dadah masa bercuti, boleh ke polis tangkap korang bila korang balik? This article was originally written in English. Click here to read it. Bercuti boleh dikatakan sebagai antara perkara yang cukup bermakna. Dengan bercuti kita boleh pergi ke negara-negara lain dan rasa pengalaman berbeza dari segi budaya, makanan dan kadang-kadang juga undang-undang. Perbezaan undang-undang tu pulak kadang-kadang boleh sampai kepada kebenaran menggunakan dadah. Mengambil contoh Amerika Syarikat, baru-baru ni beberapa negeri di negara itu (seperti Colorado) dah membenarkan penggunaan ganja untuk rekreasi – dan kepada yang ‘kaki stone’ tu, ni mungkin jadi antara 101 sebab kenapa diorang nak melawat negara Uncle Sam tu. Sekarang ni, kalau korang ada perasaan nak tahu pasal ganja, korang mungkin nak pergi ke Calorado. Sebabnya, di sana keadaan lebih selamat dan pihak berkuasa Amerika juga tak akan tangkap korang sebab ambil benda tu. Tapi, macam mana pula kalau korang balik ke Malaysia nanti? Boleh ke PDRM tahan korang yang dah ambil dadah di negara yang membenarkannya? Errr… ya… mereka boleh Secara asasnya, terdapat beberapa kesalahan dadah di Malaysia, dengan menyaksikan pemilikan dan pengedaran dadah sebagai salah satu kesalahan serius (mengedar boleh membawa hukuman gantung). Tapi, di sana terdapat juga kesalahan kecil dadah macam pemberian dadah kepada diri sendiri yang mana membolehkan korang dikenakan tindakan, walaupun korang ambil dadah tu di luar negara. Menurut Seksyen 15 Akta Dadah Berbahaya: (1) Mana-mana individu yang – (a) mengambil, memberikan dadah untuk dirinya atau menyiksa orang lain, bertentangan dengan seksyen 14 untuk memberikan pada dirinya apa-apa dadah berbahaya yang dinyatakan dalam Bahagian III dan IV Jadual Pertama; atau (b) dijumpai di mana-mana premis yang disimpan atau digunakan untuk apa-apa maksud yang dinyatakan dalam seksyen 13 mana-mana dadah berbahaya yang boleh digunakan atau dihisap atau sebaliknya digunakan olehnya, adalah bersalah atas suatu kesalahan terhadap akta ini dan apabila disabitkan boleh didenda tidak melebihi lima ribu ringgit atau dipenjarakan selama tempoh tidak melebihi dua tahun. Jadi, berdasarkan seksyen ini, sesiapa yang menggunakan dadah akan didapati bersalah melakukan kesalahan, dan tak disebut di situ sama ada ia hanya terpakai kalau korang melakukannya di Malaysia. Tapi kalau korang buat benda tu di luar negara, macam mana diorang boleh tahu? Kalau diorang tanya, korang boleh je cakap yang korang pergi Colorado sebab nak mendaki Rocky Mountains kan? Mereka boleh dapatkan ujian air kencing Jadi inilah antara jalan paling logik untuk PDRM dapat tahu sama korang ambil dadah atau tak. Mereka boleh je minta korang buat ujian air kencing. Menurut Seksyen 13 Akta Penagihan Dadah (Rawatan dan Pemulihan) 1983, PDRM dibenarkan untuk mengambil ujian air kencing korang, kalau korang disyaki mengambil dadah. Tapi, PDRM terlebih dulu mestilah kena tahan korang dan letakkan korang dalam jagaan sebelum ujian air kencing tu diambil. Jadi, kalau korang baru je balik dari Amsterdam dan pakai baju yang ada kata “#LEGALIZE”, PDRM dah tentu akan syak korang ambil dadah. Jadi, diorang mungkin akan tahan korang dan minta orang kencing dalam cawan. Lebih baik tengok je pemandangan Jadi, kalau korang tak rancang nak pergi buat selama-lamanya dan masih nak balik ke Malaysia, pilihan yang paling tepat adalah jauhkan diri dari bereksperimen kalau korang takut kena tangkap masa balik nanti. Bagaimanapun, kalau korang berada dalam keadaan diminta untuk kencing dalam cawan oleh pihak berkuasa. Ketahuilah hak-hak korang dan balas dengan sopan. Korang tak boleh tolak ujian dadah tanpa sebab yang munasabah, jadi tanya kepada pihak berkuasa tu sama ada korang boleh berunding dengan peguam dulu sebelum korang kencing dalam cawan yang diserahkan."
"You can't legally kick out a bad housemate - but Malaysian law gives some other options Last January, a Malaysian girl who lived in Bandar Sunway shared her horrible experience regarding her housemate on Facebook and the post went viral. Her scary housemate kept all her rubbish and a dog in her room for a year and a half which as expected, resulted in a foul smell and cockroach infestation in the house… Your story may not be as extreme as this, but, do you have this one annoying housemate that has gone too far in leaving his/ her mess everywhere and causing nuisance to other tenants? The kind of person who leaves piles of unwashed dishes on the sink everyday, never clean up the rubbish, plays loud musics in the midnight and not showering for a few weeks…. You may have tried to talk to him/her many times but still, nothing changes. And worse, the housemate is dead set on staying and refusing to move out. So, what can you and other housemates do? Can all of you reach an agreement and kick this tenant out of the house? No. Only a landlord can ‘kick’ a tenant out A tenancy agreement is a contract signed between the tenants and the landlord. It covers all the rules that each party should follow during the term of tenancy. A tenancy agreement will normally include a clause explaining who can terminate the contract. In most situations, only a landlord can end a tenancy if the tenant fails to fulfill the duties under the contract. Here are a few common clauses highlighting the duties of a tenant: “Tenant is responsible to keep the Rental Property clean, sanitary, and in good condition” “Tenant must not to do anything at the Property (including the playing of excessively loud music) which is a nuisance or annoyance or causes damage to the Property or adjacent or adjoining Property or neighbours” “Tenant should get permission from the landlord in advance regarding any overnight guest in the Property” So, if your housemate fails to be a responsible tenant, the landlord will have the right to end the tenancy and ask him/ her to move out. However, this right does’t extend to other tenants staying in the same property: If you sign separate tenancy agreement with the landlord, you do not have the right to end another housemate’s contract. The reason is simple- The contract is between the housemate and the landlord, not you. If all tenants (including you and the problematic housemate) enter into one agreement with the landlord, then all of you have a collective responsibility in maintaining the house. The landlord may remove all tenants if one of you causes problems. You do not have the right to evict a co-tenant. But, if you are a lead tenant and you rent part of the property to other sub-tenants, depending on your contract, you may have the right to terminate a sub-tenant’s agreement. So, unless there is a sub-tenancy contract that provides you the right to evict the tenant, you do not have the right to kick out any other tenants, however annoying the person is. But what if your landlord doesn’t do anything or refuses to remove the housemate? There are other ways to remove a terrible housemate Now you know that you cannot legally kick your housemate out. However, here are a few things that you can do: 1. Inform your tenancy agent or building management As mentioned, your landlord is the only person who can kick out a tenant (unless there’s a sub-tenancy agreement) so your options are quite limited if the landlord s uncooperative. In this situation, the best option you have is to make a complaint to the tenancy agent (if you went through one) and/or the management if you’re living in an apartment. But this is only to apply extra pressure to the landlord to take action – neither the agent nor the management can “force” him to take action. However, if your landlord still refuses to end the tenancy agreement of the bad housemate, then you may need to request ending your tenancy earlier and move out. 2. In extreme cases, you can call the police If your housemate has turned hostile and you feel that your safety is at risk, you can call the police. For example, you can make a report when your housemate: Threatens you with violence Makes racial or sexual harassment Causes severe damage to the property These are all criminal offences and can be charged in the court. So, if you housemate committed one of those, you can call 999 or go to the nearest police station and file a report. You can sign a housemate agreement The best way to deal with a messy housemate is not to have one at the first place. However, not everyone is lucky enough to stay with their friends or afford a place to themselves. Most of the time, you need to take the risk to live with strangers. To avoid future conflicts, you can sign a housemate agreement with other tenants in the same unit. It is basically an agreement which sets out the “house rules” (such as cleaning and garbage disposal, noise level, food and groceries). So, instead of discussing the rules orally, you can actually put the rules into writing and get all the tenants to sign it – making it a contract of sorts. While there’s a chance it may not be legally enforceable, it at least stands as proof that something was done to ensure that everyone in the house pulled their weight. However, you have to make sure that everyone signs it, and that the “contract” is written clearly and fairly. Here are some tips to get you started: [READ MORE: Is it safe to write your own contract in Malaysia (or sign one)?]"
"A RCI will investigate the corruption in Malaysian Courts. But what is a RCI? A senior Court of Appeal judge (Justice Datuk Dr Hamid Sultan Abu Backer) recently revealed some shocking insights into the alleged misbehavior of judges and the corruption in our courts. You could read more about it here in our previous article. [ READ MORE : A Malaysian judge reveals 4 ways corruption allegedly spread through the courts ]. Justice Hamid informed his lawyer that he is also prepared to discuss the contents of his affidavit in more detail only in the presence of an RCI. And it looks like he got his wish since Prime Minister Dr. Mahathir announced plans to set up a Royal Commission of Inquiry (RCI) to investigate the authenticity of Justice Hamid’s claims against the judiciary. So… What is an RCI? Royal Commissions are public inquiries formed to look into serious matters of public importance and controversy. It’s a statutory body (an organization given its power’s by Parliament) found in monarchies like Saudi Arabia, United Kingdom, Canada, Australia and here in Malaysia. RCI’s in Malaysia are formed by the Yang di-Pertuan (often on the advice of the Prime Minister) under the Commissions of Inquiry Act 1950 , and may examine any topic such as the conduct/ management of any : federal officer; department of public service public institution (like the courts) Or any other matter considered for public welfare. (except Islamic or Malay customs matters, & Item 10 matters in Sabah & Sarawak State List). An RCI’s job scope – basically who, what, and how much it could investigate within a certain issue, would be stated in a document called the Terms of Reference (TOR). Members of RCI’s in the past included up to 5 people and consisted of retired judges, lawyers, doctors and/or other members of the public deemed suitable to examine the issue at hand. For now, the members of the RCI that will inquire into the judiciary and its TOR have yet to be announced. It matters to note that RCI’s are a relative rarity, but RCI’s have previously been established over diverse issues such as BNM’s forex losses, the death of Teoh Beng Hock and the collapse of a ferry terminal in Penang. It’s ‘business as usual’ for the courts despite an RCI With Justice Hamid’s affidavit mentioning judicial interference and corruption among other things, naturally some people involved in legal cases right now might be concerned. The Attorney General (AG) Tommy Thomas has assured everyone in a Media Release that all courts in the country would continue to function as normal whilst the RCI conducts its inquiry. The Media Release also highlighted how this isn’t the first RCI involving the judiciary. In 1988, two Tribunals were set up to examine allegations of misconduct by 6 Supreme Court judges (now renamed Federal Court). Then later in 2007, an RCI was set up to investigate a leaked video clip involving a prominent Malaysian lawyer (V.K. Linggam) seen to be influencing the appointment of senior judges. In both these instances the courts carried on with business as usual. In lawyer-speak, the postponement or delay of a case is called adjournment. The Media Release also emphasized that there wouldn’t be an automatic or blanket adjournment of all cases and noted that during previous RCI’s no adjournments were entertained. Think of it this way, it would be outrageous to temporarily close down the entire police force just because some officers are accused of corruption. Similarly, the courts must continue the important task of dispensing justice since delays in legal cases could bring about severe economic (delay in receiving money owed) and social consequences (e.g. difficult for parties to carry on with their lives). Are criminals given a “get out of jail free” card if a judge is proved corrupt? As we’ve mentioned in our previous article on Justice Hamid’s affidavit, the allegations mention interference in cases by a “Hit Squad” of judges and also specific meddling in cases such as the trial of Anwar Ibrahim, the Indira Gandhi conversion case and the sedition trial of Karpal Singh. So is it possible that cases involving judicial interference will be revised? It seems pretty obvious that just because a judge were to be proved corrupt, doesn’t mean criminals he had sentenced over the years are automatically released. Similarly, all civil cases the judge had previously decided on can’t be automatically undone because to do so would be to “throw out the baby with the bathwater”. Lawyers we spoke to said the main factor for courts to re-examine a case is dependant on parties involved to challenge or appeal previous decisions. Parties should also have sufficient proof to convince a fresh panel of judges that the previous judge has made a serious error or fresh evidence has come to light. Another complication could arise. All courts generally have powers to re-examine previous decisions of lower courts but since the Federal Court is the highest court - who will re-examine its previous decisions? Here is where things can get confusing. Rule 137 of the Rules Of The Federal Court limits any other rule from stopping the Federal Court in helping to prevent injustice or abuse of the court process. Basically, Rule 137 is a rule that allows the Federal Court to bypass the other rules if that’s needed to ensure that justice is being served: Rule 137 of of the Rules of the Federal Court “For the removal of doubts, it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.” An article by Edmund Bon points out some conflicting uses of Rule 137 – like in the case of Simpang Empat where the Federal Court found it could review its own decisions but just days later in the case of Panflex Sdn. Bhd, the court held it could not review its previous decisions. Finally, it’s also important to note that parties aren’t generally allowed to sue judges (as per Section 14 of the Courts of Judicature Act 1964) so as to allow judges to perform their jobs without fear or favor of repercussions. However, it has been suggested that the immunity doesn’t apply if it can be proved judges acted in bad faith or are involved in criminal acts such as corruption – so it may be possible. [ READ MORE : Can judges get sued if they make a mistake in Malaysia? ] It’s the RCI’s job to only advise, not enforce. Think of the RCI like a doctor – He’ll check your health and suggest that you should stop smoking, but can’t actually force you to stop smoking. Similarly, the best an RCI can do is present its findings and provide recommendations in it’s report, but it eventually depends on the government and other parties to take meaningful action. The last judicial RCI into the V.K. Linggam clip resulted in the ban on V.K. Linggam from practicing as a lawyer and a creation of a Judicial Appointments Commission (JAC) but lacked any criminal charges against all involved. Some parties implicated by the (V.K. Linggam) RCI tried to challenge the report via the courts (through a judicial review), but failed. The judge decided that an RCI’s findings are not reviewable, and said : “ The Commission merely investigates and does not decide. Its findings and recommendations are not binding on anybody, not even the Government. “ – Federal Court in 2011, 6 MLJ 490 It’s beyond the job scope of any RCI to play judge, jury and executioner. It’s a similar situation with many RCI’s around the globe to only advise based on it’s findings, since that is often the mechanism of a public inquiry."
"Here's how to legally own a firearm in Malaysia Handguns, revolvers, shotguns and rifles, these are some of the type of firearms. They can be considered cool pieces of machinery to some and for some they’re nothing more than dangerous machines meant to kill. If you’re the kinda person who finds that guns are cool, you may have actually thought of owning one. But it’s not news that owning a gun in Malaysia is not easy and probably even impossible. Unlike America, you can’t go to your nearest convenience store and ask “Where’s the gun aisle ah?”. If you must know, owning a gun isn’t entirely impossible per se, because Malaysian law does provide for methods in which you can legally own a gun and we’re here to tell you how it works. Oh, and if you’re getting excited because you think you’re gonna be happy owner of a new Glock handgun...we should tell you early that you may have a better chance finding Jho Low. You need a licence to own a gun in Malaysia In Asklegal we don’t normally talk about the laws of other countries, but for the legal point we’re gonna make we have to. In America, there’s a legal right for their citizens to bear arms. This means that the American government can’t take steps to stop people from owning a gun. However in Malaysia there’s no right to own a gun, which means that our government can do what it takes to stop/limit ways in which we can own guns. According to Section 3 of the Arms Act 1960: “...no person shall have in his possession, custody or control any arms or ammunition unless he is the holder of an arms licence...” So basically NOBODY in Malaysia is allowed to own a weapon or bullets unless he has a license for it. But if you’re really stubborn and go ahead with illegally getting a gun, be prepared for at jail sentence for about 7 years and a possible fine of up to RM10k. Now, assuming you love the comfort of your own home as opposed to the destitute situations of a Malaysian prison, if you want a gun you want to own it legally. Thus, next question becomes...how do you get this license? You just have to send a form to the PDRM If you want a passport, you apply for one from the Immigrations Department. If you want a gun license, Section 4 of the Arms Act 1960 says that you must make an application to the Chief Police Officer of the state you’re in. So if you’re living in Johor for example, your application must be addressed to the Johor Chief of Police. For extra deets on this application, all you need to do is fill up a form which you can get on the PDRM website. And as for the criteria and stuff, we found out a couple of things from the FAQ portal and the forms itself: There are 4 main purposes for owning a firearm – to protect your farm from pests, to protect yourself and property, sports (you’re a member of a shooting club for example), and hunting To be eligible for the license you need to be – 18 years or above, no mental illness, and no previous criminal record If you fall into these criteria and you’ve filled up the necessary forms and prepared other necessary documents, all you have to do is pass these documents to the District Police Headquarters that oversee your area. By the way, if you’re going “Hey! I fit these criteria and I have the necessary purpose to own a gun”, we have to tell you that… Getting the license approved is extremely difficult You probably have a better chance emulating Freddie Mercury’s vocal range than actually getting a gun license approved. Our friends at Cilisos actually wrote an article on gun licenses, and from there we found out that the approval process can take years – and the likeliness of the application getting approved is also difficult. But fret not if your application is rejected in the end, like everything in life there’s a back up plan. If you’re application has been rejected by the State Police Chief, you can always appeal to the Inspector General of Police – and if that also fails, you can appeal to the Home Ministry."
"Can you legally keep pets in Malaysian apartments?  If you live in flats, condominiums, or apartments, it is quite common that the management rules prohibit you from having pets. They may be concerned about the noise, smell, or other problems that your pet may cause to the neighbors and other residents. But what if you really wanted to have a pet as part of your family? We got some questions from our readers who are confused about whether pets are allowed in high-rise buildings. There are news and reports that published few years ago suggesting that you can legally keep pets, but owners claim there are still condo or apartment rules prohibiting them from doing so. This can be confusing because... The answer depends on which district you are staying Under the Strata Management Act 2013, the local authority has the power to pass regulations regarding the keeping of pets in strata buildings. For clarification, strata buildings include high-rise buildings (condos, apartments, flats) and Gated and Guarded Communities. So, this means that different local councils may have different rules that regulate the keeping of pets in high-rise buildings. We contacted a few local authorities in Klang valley to find out their rules: Local councils that allow: Kuala Lumpur City Hall, Subang Jaya Municipal Council Local councils that DON’T allow: Petaling Jaya City Council, Ampang Jaya Municipal Council, Kajang Municipal Council However, not all pets are permitted. So, for example, if you are staying in Kuala Lumpur, the rules only allow you to have certain small dogs- Miniature Pinscher, Bichon Frise, Pekingese, Papillon, Poodle (Toy), Japanese Chin, Maltese, Pomeranian, Chihuahua. If you are not sure whether your pet is allowed, you may need to contact your local council for inquiries. Even if the local council law allows you to have pets in condo, the process is not as straightforward as you might think. For instance, DBKL told us that you will need a licence for your pet. However, to get that licence, you have to get written approval from your condo management. If your condo management insists that you cannot have pets, you will have to challenge the management rules in the Strata Management Tribunal (SMT). You can make your own application to the Tribunal here. Upon successful challenge, the tribunal may remove the management rules which prohibit you from having pets. However, it should be noted that not all parties can bring a claim to the tribunal. For example, if you are only renting that property, you might not be able to bring an action. You can get more information in our article here: [READ MORE: Can the condo management in Malaysia really enter my unit and take my property?] There are two more requirements... Even though you may have permission to keep pets in your unit, just remember that there are responsibilities that come with it. By-law 14, Third Schedule of the Strata Management (Maintenance and Management) Regulations 2015 lists down responsibilities that MUST be followed, otherwise you could still lose your license if the condo management lodges a report against you: 1. You pet must not cause any nuisance or annoyance It is a nuisance when your pets unreasonably disturbs other people’s use and enjoyment of their property. For example, your pet is causing nuisance or annoyance when it: Consistently makes noise, such as barking Causes damage to property, like scratches the wall or digs flowerbeds Causes offensive odour on public areas such as lifts and stairs Crawls upon or sleeps on other people’s property Turns over garbage containers If your pet causes nuisance or annoyance to other residents, you can be asked to remove your pet from the property under by-law 14(2) of the Strata Management Regulations 2015. If you fail to do so, the management can take whatever action to remove your pet from the building. 2. Your pet must not cause any risk to the safety or health of other home owners You must make sure that your pet does not cause harm to any other people. For example, your pet must not carry any disease which can be spread to others. You also need to make sure that your pet is not aggressive- If your dog attacks, bites, threatens or injures a person without provocation, your dog licence will be revoked and you have to remove it out of your property. You may also get sued if your pet injures other people. [READ MORE: 6 common things some Malaysian pet owners do - that are actually illegal!] Be a good furparent Having a licence doesn’t mean that you can neglect your responsibility as a pet owner. There are still some basic courtesies that you have to follow, especially when you are living in a high density condo. There are a few basic responsibilities as a pet owner, regardless of where you are staying: Always clean up your pet’s waste Vaccinate your pet Train your pet Keep your pet under proper supervision when having a walk"
"We asked PDRM if they're arresting everyone with a gang tattoo. Here's what they said Last year, PDRM made a statement that people who have certain tattoos will be arrested—as it might represent illegal gangs in the country. Not just that, there’ll be a punishment of up to 3 years in prison, or up to RM5,000 in fines if found guilty. Recently, a bookseller from Penang was arrested (and later released) for having a swastika tattoo (卍) on his back. Many people still view tattoos as a sign of trouble or gang affiliation, but the judge in this case said that there are other things the police will look into, before arresting someone for a tattoo. So if you happen to have a particularly fierce dragon tattoo or worse—a tattoo that coincidentally looks like a gang symbol (more on this later)—will you actually be putting yourself at a risk of being arrested? Now before you limit your next tattoo choice to Pokemon or derpy Freddy Mercury, you should know that… There is a specific criteria for “gang tattoos”. Let’s clarify two things first. Firstly, a gang tattoo is meant to show allegiance or identify your association to a particular gang… kinda like how you would wear a Manchester United jersey to signify that you’re a MU fan. This means that it’s something that is specific and should be distinguishable from regular tattoos. Secondly, the law that applies to gangs in this context is the Societies Act 1966, as a gang can be considered a society (kinda like a group or club). The Societies Act considers a gang to be an unlawful society, which also makes being a member of a gang illegal. Section 43 of the Act states: “Any person who is or acts as a member of an unlawful society...shall be guilty of an offence and shall be liable, on conviction, to imprisonment for a term not exceeding three years or to a fine not exceeding five thousand ringgit or to both.” This means that if you have any connection with a gang, you’ll be liable under this Section and can be imprisoned not up to 3 years or a fine not more than RM 5,000. There has been a case where 3 men with heavy tattoos were arrested under this Section for alleged membership with an unlawful society in Kedah. It’s not just tattoos as well. You can also get in trouble if you’re caught with materials (like flags, banners, or badges) that contain gang symbols under Section 50(3) of the Act: (3) Any person or society who displays any flag, symbol, emblem, badge or other insignia which has not been approved by the Registrar...shall be guilty of an offence and shall be liable, on conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding *three thousand ringgit. So, how would you know what gang symbols look like? Here are some examples of gang symbols that have been shared by the police: In case you were wondering, the police can actually conduct a body search if they have reason to suspect that you’re up to no good. Unfortunately, this also means that the officer can check your tattoos if they happen to resemble a gang symbol. But don’t worry, you’ll likely not be getting into trouble because... The PDRM will investigate before they make an arrest So what if you happened to come across a bad tattoo artist, made an unfortunate tattoo decision, or, simply by just pure coincidence, end up with a tattoo of two interlocking coins similar to the one for Gang 04 above? Does that mean you’ll be calling your lawyer from the lockup anytime soon? Well, not really. We called the Dang Wangi District Police HQ and PDRM’s D-7 Vice and Secret Societies unit, and both told us that an investigation will have to be conducted before they actually make an arrest. So if the police do suspect you for you tattoo, they’d conduct an investigation which basically includes taking down your details, investigating if you have any connections to these gangs, and only making an arrest if you have actual connections or links to the gang. If you’re cleared, you’ll be good to go (to make a cover-up tattoo appointment)."
"If you do drugs on a holiday, will the PDRM catch you when you're back? Vacations are really awesome, you get to visit another country with different cultures, food, and sometimes laws. And sometimes different laws could mean legalised drugs. Take America as an example, recently certain states there (like Colorado) have made the use of recreational marijuna legal – giving Malaysians 420 extra reasons to visit the country. Now you may be curious about this whole marijuana thing, and may want to go to Colorado to try it out. You may also be thinking it’s safer to do it in America, because the American authorities wouldn’t arrest you for it, and you may actually be right. However, what if you come back to Malaysia? Can the PDRM arrest you for doing drugs in a country where it’s legal? Errr...yes, yes they can There are a few drug offences in Malaysia, with possession and trafficking being the serious ones (trafficking is the one that can get you hung). But there are other minor drug offences like self-administration which you can be charged for if you consume drugs overseas. According to Section 15 of the Dangerous Drugs Act: (1) Any person who— (a) consumes, administers to himself or suffers any other person, contrary to section 14 to administer to him any dangerous drug specified in Parts III and IV of the First Schedule; or (b) is found in any premises kept or used for any of the purposes specified in section 13 in order that any such dangerous drug may be administered to or smoked or otherwise consumed by him, shall be guilty of an offence against this Act and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years. So basically according to this section, anyone who uses drugs will be guilty of an offence, and there’s no mention that it only applies if they did it in Malaysia. But then if you did it overseas, how are they gonna know? If they ask, you can just say you went to Colorado to hike the Rocky Mountains right? Well… They may ask you for a urine sample So this is probably the most logical way the PDRM can find out if you actually took drugs. They get you to do a drug test by peeing in a cup. According to Section 3 of the Drug Dependants (Treatment and Rehabilitation) Act 1983, the PDRM is allowed to conduct a urine test on you if he suspects you’re a drug user. The PDRM however must first detain you and take you into custody before doing the urine test. So if you’ve just come back from Amsterdam and you’re wearing a shirt that says “#LEGALIZE”, the PDRM probably has proper grounds to suspect you’re a drug user. So they may detain you and then ask you to pee in a cup. It’s better to just see the sights So if you’re not planning to go away forever and you’re gonna return back to Malaysia, it’s best to stay away from experimenting if you’re scared of getting caught back home. Nevertheless if you’re in a situation where you’re asked to pee in a cup by the authorities, know your rights and respond politely to them. You can’t refuse to do a drug test without a reasonable excuse, so politely ask the authorities if you can consult with a lawyer before you pee in a cup. [READ MORE: If the PDRM asks you to do a urine test, can you say no?]"
"Think you know the legal age for everything in Malaysia? Try this quiz! Many things change over time, and that includes our laws – what used to be legal at age 18 when we were younger, may no longer be the same today. Back in the day, some of us couldn’t wait to be old enough to legally do certain things, like drive a car to impress our dates or buy beer for a party. Of course, if you were a bad boy/girl, you probably never cared about the age limit anyway... ……..but do you at least know them? With all that talk about changing the ages for smoking and voting, there are actually a whole lot of other things that require a minimum age. For the full answers, you could check out our articles listed below. But remember – there’s no legal age for cheating! [READ MORE : Legal ages for almost everything in Malaysia Part 1] [READ MORE : Legal ages for almost everything in Malaysia Part 2] Image screencapped from YouTube. Check out the video here"
"5 MORE minimum ages in Malaysia you probably didn't know about... Growing older is mandatory, growing up is optional. We explore more legal ages to supplement our previous article on the legal ages for everything in Malaysia. If you missed out on Part 1, click here. CRIMINAL RESPONSIBILITY This basically means that a child below the age of 10 can’t be convicted of murder or any other crimes. Why? The presumption of ‘doli incapax’ (also known as the defence of infancy) – a child is presumed too young to understand the consequences of their actions or distinguish between ‘right and wrong’. In Malaysia, this age-old common law presumption is engraved in statute under Section 82 of Malaysian Penal Code and Article 2 of the Child Act 2001. For Syariah criminal offences, Article 2 and 51 of the Syariah Criminal Offences (Federal Territories) Act 1997 indicates it will not be an offence if done before the age of puberty (baligh). However, these act may only apply to Muslim children in Federal Territories, and since Islamic laws could vary depending on the state, we can’t say if the same standard applies in each state. FIREARM Obtaining the permit to own a gun in Malaysia is a lengthy and difficult process with stringent conditions. Under our gun laws, the minimum age to obtain the permit starts at 18. However a person above 16 (but below 18) may get one if the State Police Chief finds “exceptional circumstances” for you to need to own a gun. – Section 5(2) Arms Act 1960. BUSINESS If you’re eager to start your own start-up as a private company (sdn. bhd.), take note that among Suruhanjaya Syarikat Malaysia’s (SSM) requirements under company law include a company director aged minimum 18 years old. – Section 196(2) Companies Act 2016. GDL / PSV LICENSE A Goods-Driving-License (G.D.L) is a driving license for drivers of commercial vans and lorries to transport company goods. The minimum age to obtain one is 21 years old. – Section 56(2) Road Traffic Act 1987. A Public-Services-Vehicle (P.S.V) license on the other hand, is a requirement for bus and taxi drivers to transport people. The minimum age to obtain it is also 21 years old – Section 39 (3) Road Traffic Act 1987. Take note that starting from July 2019, ride-hailing drivers (like Grab) will require a PSV license. RETIREMENT ​ At age 60, our birthday suits will require regular ironing (cuz of the wrinkles, get it?) Lame jokes aside, the Minimum Retirement Age 2012 (MRA 2012) sets the retirement age at 60 years old for private sector employees. But wait don’t panic, there’s more to it ! This minimum retirement age of 60 just means that your employers can’t terminate you before age 60 on the excuse of retirement (even if its in your contract).Your employer may also extend the retirement age within their company, since age 60 is just the MINIMUM age and not a compulsory retirement age. And you, as an employee, can choose an optional retirement if its in your contract or a collective agreement. – Section 6 MRA 2012. There’s also a whole list of exceptions (that’ll be too long to include here) under Schedule 2 of the MRA 2012 on who and what types of work this Act applies to. If you’re curious about the retirement age for government employees, age 60 (since 2012) is actually the maximum age to work before mandatory retirement. By the way, did you catch Part 1? READ MORE : Legal ages for everything in Malaysia Part 1"
"10 legal ages in Malaysia you probably didn't know about... “ Age is a just a number and jail is just room”, is a common term. You think you know the age limit for most things, but do you really? CHILD / MINOR In Malaysia a minor is someone who has not reached the ‘age of majority’. The ‘age of majority’ is above 18 years old under the Age of Majority Act 1971. Similarly, the definition of a “child” in the Child Act 2001 is a person under 18 years old. You may notice later the definition of a child could vary according to the statutes. However, the definition of a “minor/child” in the 2 acts above is taken as the general definition unless otherwise stated. For one example, a minor is GENERALLY not capable of signing a contract, as per Section 11 Contracts Act 1950. Rather than mention a specific age, the Contracts Act 1950 simply refers to the ‘age of majority’. RIDING MOTORCYCLES Ever see someone dressed in a school uniform riding a motorcycle and wonder if its legal? Well the legal age to get your hands on a motorcycle license is 16 years old. – Section 39 (1) Road Traffic Act 1987. DRIVING MOTORCARS If you’ve been ‘driving’ your parents crazy wanting to start driving their cars, its age 17 and above to hold a motorcar license. – Section 39 (2) Road Traffic Act 1987. ALCOHOL Too bad for you Gen Z people,the legal drinking age is now 21. The legal age for drinking alcohol was 18 years old until December 1st, 2017, with new amendments (Regulation 361 and Regulation 386A) to the Food Regulation Act 1985 coming into effect. SMOKING As we can see from Section 13 Control of Tobacco Product Regulations 2004 under the Food Act 1983, the legal smoking age at the time of writing this article is still 18 years old and has been since 1994. Back in 2017, the Ministry of Health under BN leadership had plans to increase the legal age for smoking to 21. For now, the current Pakatan Harapan government has introduced new smoking bans at eateries but is yet to follow up on plans to raise the legal smoking age. If and when they do so, we will update this article accordingly. VOTING At present time, Article 119 (1) of the Federal Constitution still sets the voting age at 21. The Cabinet had already decided on lowering the voting age from 21 to 18. However, the present government would still need to secure a two-thirds majority in Parliament before amendments to the Constitution can be made for it to legally take effect.When that happens, we’ll be sure to update it here. [UPDATE] The Bill was passed with a majority vote (211 out of 222 parliamentary seats) on July 16 2019. This means that by the next election, the voting age will officially be 18 instead of 21. WORK Malaysia does have strict laws on child labour however certain types of work are permitted for a “child (below 15)” or “young persons (aged 15-17)” under the Children and Young Persons (Employment) Act 1966. You may read more on this topic and find the 4 types of work a child is permitted to do here in our article on child labour. We’ve listed the age as 15 in our infographic above since the conditions for “young persons” to work are less restrictive as compared to the limited types of work a “child” is permitted to do, and can be found in Section 2(3) of the Children and Young Persons (Employment) Act 1966. SEX Listen up, boys and girls.The legal age to give consent (permission) to sex is 16 years old. Having sex with anyone younger than 16 years old, may be statutory rape even if he/she said yes. – Malaysian Penal Code (Act 574), Section 375. MARRIAGE The legal age for marriage has been a contentious issue recently. For Non-Muslims throughout Malaysia, if your parents give you permission then the legal age of marriage is 18 for men and women. However, the age may be reduced to 16 for women if the Chief Minister grants you a license. If your parents don’t give permission, the both of you would have to wait until the age of 21 to marry - Section 12 Law Reform (Marriage and Divorce) Act 1976. For Muslims, the laws relating to marriage age differ depending on an individual’s state Islamic laws. Selangor became the first state to standardize the marriage age for Muslim men and women to 18, but an application may be made to the Syariah court to marry if you’re underage. READ MORE : Is child marriage actually legal in Malaysia? Have you also read Part 2? CLICK HERE : Legal ages for everything in Malaysia Part 2"
"Bolehkan anda membeli alat mainan seksual di Malaysia? Sempena Hari Kekasih (Valentine’s Day) yang lalu, mungkin ada di antara kita yang mencari hadiah bermakna untuk kekasih masing-masing. Biasanya pada Hari Kekasih, hadiah yang biasa diberikan adalah seperti coklat, bunga ataupun barang kemas. Tetapi, kemungkinan pada tahun ini pula anda mungkin ingin memberi hadiah berbeza, hadiah yang boleh menghangatkan situasi dalam kamar. Dan, hadiah jenis apa yang sanggup menggegarkan situasi dalam kamar (bateri tidak disertakan)? Biarlah dibeli untuk kegunaan peribadi ataupun hadiah gurauan kepada rakan anda yang hobinya melayan komik anime, ia bukannya rahsia bahawa alat mainan seks ini senang di cari kat Google ataupun kedai di pusat membeli-belah. Tetapi soalannya, jika nak melawat laman web lucah pun perlu tukar DNS, bagaimana pula dengan membeli alat mainan seks? Adakah membeli benda tersebut sah dalam sisi undang-undang? Haram jika anda memiliki barangan yang tidak senonoh Kami sebenarnya mendapat banyak soalan tentang kesahihan alat mainan seks daripada pembaca Asklegal, dan kami telah mengambil masa yang agak lama untuk membentang artikel ini kerana tiada banyak maklumat yang ada berkenaan perkara ini. Tetapi jangan risau ya, kami ada terjumpa satu rang undang-undang yang bersesuaian dengan perihal ini. Menurut Seksyen 292(a) Kanun Keseksaan (dalam bahagian dan diterjemahkan oleh Asklegal): Sesiapa yang– (a) Menjual, menyewakan, membahagi-bahagikan, menunjukkan secara awam, atau dengan apa-apa cara mengedarkan, atau bagi maksud menjual, menyewakan, membahagi-bahagikan, menunjukkan secara awam atau mengedarkan, membuat, mengeluarkan atau ada dalam miliknya apa-apa buku, risalah, kertas, rajah, lukisan, gambaran atau patung lucah atau apa-apa jua benda lain yang lucah; ....hendaklah dihukum dengan penjara selama tempoh yang boleh sampai tiga tahun, atau dengan denda, atau dengan kedua-duanya. Seksyen ini mengulangi istilah “lucah” berkali-kali dan bagi tujuan topik ini apa yang perlu anda ketahui adalah – undang-undang menyatakan bahawa ianya haram untuk memiliki apa-apa objek lucah. Sesiapa yang ditangkap memiliki objek lucah boleh dihukum penjara sehingga tiga tahun dan/atau didenda. Jadi soalan cepu emas di sini adalah, adakah mainan dewasa boleh dikategorikan sebagai barangan lucah? Untuk menjawab soalan ini, kita perlu ketahui maksud lucah/tidak senonoh. Berdasarkan undang-undang dari UK dan Malaysia, objek lucah/tidak senonoh terdiri daripada objek yang boleh merosakkan atau memesongkan akhlak awam. Secara amnya, orang awam menganggap objek-objek ini sebagai menyinggung hati dan menjijikkan. Namun, pandangan awam dan undang-undang terhadap definisi ini mungkin berbeza dari segi definisi. Sebagai contoh, kebanyakan rakyat biasa di Malaysia mungkin menganggap koew teow goreng cheese sebagai sesuatu yang menyinggung hati dan menjijikkan, tetapi ini tidak bermaksud pihak berkuasa akan menyerbu restoran yang menghidangkan masakan ini. Jadi untuk memastikan jika definisi undang-undang terhadap objek lucah boleh digunakan ke atas mainan dewasa, kami menghubungi Fahri Azzat, seorang peguam, untuk mendapatkan pendapat beliau. Fahri berpendapat bahawa mainan dewasa tidak termasuk di bawah seksyen ini kerana ianya tidak dipasarkan atau dibuat untuk tujuan lucah/tidak senonoh. “Saya rasa bahawa ianya tidak harus dimasukkan di bawah seksyen ini kerana alat mainan seks tidak dibuat dan dipasarkan untuk tujuan lucah/tidak senonoh...[kerana] lucah/tidak senonoh didefinisikan sebagai sesuatu yang menyinggung hati dan menjijikkan di bawah piawai moral dan tatasusila yang diterima umum”. [Namun begitu] ianya boleh digunakan sebagai bukti jika ianya digunakan untuk tujuan lucah/tidak senonoh. – Fahri Azzat melalui temu ramah dengan Asklegal Fahri juga menyarankan bahawa mainan sebegini boleh digunakan sebagai bukti jika ianya digunakan dalam perlakuan yang lucah/tidak senonoh, seperti memuat naik video atau gambar anda ketika menggunakan mainan dewasa ataupun memperkosa seseorang dengannya. Walaupun ada yang berhujah bahawa beberapa jenis buah-buahan dan sayuran boleh digunakan untuk tujuan ini (ya kami tahu apa yang bermain dalam fikiran anda), tetapi dalam kes ini, adalah amat sukar untuk memakan bukti seperti mainan dewasa. Perihal kamar seharusnya dirahsiakan Jawapan muktamad yang boleh kami berikan dalam persoalan ini adalah seperti berikut: perkara sebegini harus dijadikan rahsia peribadi. Seperti yang kami nyatakan sebelum ini, mainan dewasa bukannya barangan pasaran gelap – ianya dijual atas talian dan juga di kedai rantaian penjagaan kesihatan yang namanya sama dengan nama teman akrab Sherlock Holmes (pandai-pandailah Google ya). Jika ianya dibeli di atas talian, anda mungkin juga perasan yang barangan ini akan dihantar melalui pakej dengan cara bungkusan yang tidak mendedahkan bahawa ianya alat mainan seks. Kami juga pasti jika anda membelinya di kedai biasa, anda akan diberi beg plastik. Dalam erti kata lain, tiada siapa yang akan tahu bahawa anda membeli mainan dewasa. Jadi adalah selamat untuk kami katakan bahawa anda boleh membeli mainan dewasa, melainkan anda berhajat untuk berlawan pedang dengannya. Satu pengecualian di sini adalah jika anda membelinya dari luar negara, di mana kemungkinan pihak Kastam akan membuka bungkusan untuk tujuan pemeriksaan – barangan anda mungkin dirampas atau (lebih teruk lagi) anda mungkin terpaksa menjelaskan kepada mereka apa tujuan anda membeli Bad Dragon."
"4 dakwaan oleh Hakim Mahkamah Rayuan yang mendedahkan korupsi dalam sistem perundangan [Click here for English version] Anda mungkin sudah sedia maklum tentang berita hangat yang membabitkan pengakuan Hakim Mahkamah Rayuan, Datuk Dr. Hamid Sultan Abu Backer yang mendakwa bahawa terdapat salah laku di antara hakim-hakim dalam sistem perundangan Malaysia berhubung dengan: Tuntutan mahkamah oleh anak perempuan Karpal Singh Perbicaraan kes liwat Anwar Ibrahim Perbicaraan penukaran agama anak Indira Gandhi kepada agama Islam Salah guna dana awam; dan ........Makanan Itali??? Apa hang kata tadi? Mungkin apa yang anda ketahui tentang dakwaan ini tidak masuk akal, melainkan anda telah pun membaca kesemua 63 muka surat dokumen berkenaan yang kini sedang tular di laman sosial – tetapi jangan bimbang, kami di Asklegal sedia membantu anda. Berikut adalah sedutan dari kisah tersebut: Anak perempuan Karpal Singh, iaitu Sangeet Kaur Deo, telah membuat tuntutan mahkamah terhadap Ketua Hakim Negara (kira macam ketua semua hakim la tu) Richard Malanjum bagi tujuan mendapatkan pengisytiharan atau deklarasi (kenyataan rasmi dari mahkamah) bahawa Ketua Hakim Negara gagal dalam melindungi integriti sistem penghakiman (sistem perundangan) pada perbicaraan hasutan ke atas ayahnya pada tahun 2009, serta maklumat kepada siasatan dalaman yang dilakukan ke atas kes Karpal Singh dan Indira Gandhi. Pada dasarnya, beliau mendakwa bahawa perbicaraan tersebut tidak dijalankan dengan adil (campur tangan perundangan) dan menyoal kenapa Ketua Hakim Negara membuat keputusan untuk menggantung siasatan ke atas perbicaraan ayahnya pada November 2018. [BACAAN LANJUT: Malaysia kini mempunyai Ketua Hakim Negara yang baru....tetapi apakah tugas beliau?] Di sinilah peranan Tuan Hakim Hamid bermula. Menurut latar belakang beliau yang terkandung dalam afidavit, beliau adalah Hakim Mahkamah Rayuan dan dalam tempoh kerjayanya, telah menulis buku rujukan yang dikenali sebagai Siri Undang-Undang Janab. Agak menghairankan di sini juga adalah beliau juga menyatakan dirinya sebagai seorang tukang masak dan pemilik restoran yang berkaliber, khususnya kebolehan beliau menyediakan nasi briyani untuk 10 ribu orang, dan mendakwa bahawa jika beliau didapati tidak jujur, mengamalkan rasuah, atau tidak berkebolehan, beliau bersedia untuk melepaskan kerjaya penulisan dan membuka rangkaian restoran Janab’s Briyani House. Dalam erti kata yang lain, dia ni.... Atas permintaan Sangeet Kaur, Datuk Dr. Hamid Backer kemudiannya memfailkan afidavit yang menyokong kenyataan Sangeet, dan ianya menyerlahkan beberapa kejadian di mana hakim-hakim tidak menjalankan tugas mereka dengan sempurna, atau sudah sedia maklum dengan apa yang berlaku namun tidak berbuat apa-apa mengenainya. Kami akan memberi rujukan kepada bahagian-bahagian dalam dokumen tersebut yang digunakan dalam artikel ini dan anda boleh memuat turun afidavit tersebut di sini jika anda ingin membacanya. Sejauh manakah kebenaran dakwaan ini? Mungkin anda boleh menerima semua dakwaan ini sebagai benar – sebab dia ni kan hakim yang dah banyak merasa asam garam hidup, kan? – jawapan untuk ini adalah buat masa ini, semua dakwaan ini tidak semestinya benar sehinggalah siasatan telah dijalankan, namun ianya juga mungkin sesuatu yang kukuh. Kesemua ini bergantung kepada pemahaman maksud afidavit. Afidavit merupakan satu kenyataan bersumpah yang menyatakan isi kandungan atau kejadian yang dialami oleh penulisnya dan dipercayai sebagai sesuatu yang benar-benar berlaku (ataupun juga dikenali sebagai “fakta”). Perbezaan di antara afidavit dan kenyataan Facebook atau surat tidak bertanda tangan adalah afidavit merupakan satu kenyataan yang dibuat atas sumpah, di mana jika ianya didapati mengandungi kenyataan palsu, penulisnya boleh dipenjarakan sehingga 3 tahun ataupun didenda. Asasnya, jika anda menipu dalam afidavit, anda memberi kenyataan palsu; di mana ianya merupakan satu jenayah. Seksyen 191 Kanun Keseksaan – Kenyataan Palsu (Tiada terjemahan rasmi; diterjemah oleh Asklegal): Barang siapa yang terikat di sisi undang-undang oleh suatu sumpah, atau oleh apa-apa peruntukan undang-undang yang nyata supaya menyatakan hal yang sebenar, atau yang terpaksa di sisi undang-undang supaya membuat suatu akuan atas apa-apa perkara, membuat sesuatu kenyataan yang palsu, dan yang ia sama ada ketahui atau percayai sebagai palsu, atau yang ia tidak percaya sebagai benar, adalah dikatakan memberi keterangan palsu. Perlu juga diingati di sini bahawa kenyataan seterusnya dalam artikel ini tidak semestinya satu fakta ataupun sesuatu yang benar dalam apa jua cara sekalipun. Tuan Hakim Hamid telah bersumpah bahawa kenyataannya adalah benar, namun masih belum dipastikan sama ada ianya betul-betul benar atau tidak. Satu lagi perkara yang perlu kami jelaskan di sini adalah Ketua Hakim yang dimaksudkan di sini tidak dinamakan, dan mungkin juga ianya merujuk kepada beberapa individu kerana 9 orang hakim telah menjawat jawatan ini sejak tahun 1994. Tuan Hakim Hamid juga merujuk kepada individu ini sebagai “ARLC”, iaitu singkatan kepada “Antagonist of Rule of Law and Constitution”. Semua ini bermula dengan makan tengah hari Itali Kami tak pasti jika individu yang terlibat mengikut gaya siri TV The Sopranos apabila membuat perjumpaan makan tengah hari, namun Tuan Hakim Hamid menerangkan bahawa, sebulan sebelum PRU14, beberapa orang hakim termasuk beliau dan seorang hakim tinggi mengadakan perjumpaan makan tengah hari di sebuah restoran Itali. Pada masa ini, kesemua hakim-hakim ini berbincang tentang kemungkinan mereka akan dilucutkan jawatan ataupun menghadapi tribunal jika Pembangkang (Pakatan Harapan) memenangi pilihan raya. Walaupun tidak dinyatakan sama ada kes khusus yang diperbincangkan semasa perjumpaan, Tuan Hakim Hamid mengimbas kembali dalam afidavitnya bahawa beberapa keputusan kes berunsur politik dan perlembagaan yang sensasi melibatkan campur tangan kuasa-kuasa luar. Berikut adalah beberapa rumusan kes: Anwar Ibrahim – pada masa rayuan kes Anwar, panel hakim (koram) yang terlibat sering diberitahu apa yang perlu mereka lakukan [49B]. Beliau juga mendakwa bahawa Mahkamah Rayuan “mengepikan” (“brushed aside”) persoalan sama ada Anwar diberi perbicaraan yang adil sebelum ini kerana pihak pendakwaraya gagal membuktikan kes mereka [100]. Indira Gandhi – Kes Indira Gandhi merupakan satu cabaran kepada Perlembagaan, sama ada kes-kes yang membabitkan pertukaran agama Islam harus didengari oleh Mahkamah Syariah atau Mahkamah Sivil. Datuk Dr. Hamid mendakwa bahawa Ketua Hakim menegur [91] dan bertindak berang [92] ke atasnya kerana memberi keputusan yang memihak kepada Mahkamah Sivil. Karpal Singh – Sebelum keputusan rayuan kes hasutan Karpal Singh diumumkan, koram yang terdiri dari 3 hakim terdahulunya membuat keputusan untuk membebaskan tertuduh (membuang semua tuduhan). Tetapi seorang hakim tinggi memanggil mereka dan memerintahkan mereka untuk mengekalkan tuduhan [50], di mana ianya menjadi keputusan muktamad yang diumumkan. Apa yang penting tentang perjumpaan di restoran Itali ini adalah ianya merupakan satu sesi pengakuan rasa bersalah di mana ianya rata-rata membuktikan bahawa semua campur tangan yang dinyatakan di atas benar-benar berlaku. Bagi Tuan Hakim Hamid, semua ini sudah cukup bagi memulakan satu Suruhan Jaya Siasatan Diraja (Royal Commission of Inquiry – RCI) untuk menyiasat tingkah laku beberapa hakim ini dan juga perlaksanaan yang menjejaskan integriti sistem perundangan...dan perihal ini pernah disuarakan beberapa kali. Hakim diberikan kenaikan pangkat kerana mereka merupakan graduan dari institusi tertentu Malaysia mengamalkan sistem perundangan di mana, dalam istilah yang ringkas, ianya berdasarkan tata tingkat dengan Mahkamah Persekutuan diletakkan di peringkat yang tertinggi. Anda boleh meneliti perihal ini di sini, tetapi apa yang nyata di sini adalah hakim-hakim dilantik berdasarkan beberapa kriteria seperti bilangan kes yang diadili, kualiti pengadilan yang diberi dan kelayakan. Ianya sama dengan sebuah syarikat di mana pekerja diberi kenaikan pangkat berdasarkan prestasi kerja mereka. Tetapi seperti yang berlaku dalam mana-mana syarikat, masalah mungkin timbul apabila pekerja diberi kenaikan pangkat berdasarkan kecekapan mereka dalam mengampu boss – dan Tuan Hakim Hamid mendakwa bahawa perkara sebegini berlaku dalam badan kehakiman. Berdasarkan cakupan skrin (screenshot) di atas, Tuan Hakim Hamid menjelaskan bahawa ada beberapa hakim yang diberi kenaikan pangkat kerana mereka menghadiri institusi pengajian yang sama ataupun mereka menurut perintah hakim-hakim yang berpangkat lebih tinggi dari mereka. Oleh itu, sekurang-kurangnya 80% hakim dalam temph pimpinan ARCL terdiri dari graduan institusi pengajian tinggi atau khidmat yang sama [25]. Sebaliknya, hakim-hakim yang enggan menurut perintah ARLC tidak diberi kenaikan pangkat [41-45] atau dihasut untuk menukar keputusan kes [103-107]. Wujudnya “hit squad” yang terdiri dari hakim-hakim untuk “membunuh” undang-undang Yang ini bukan cerita rekaan kami. Rupa-rupanya ada sekumpulan hakim yang diberi nama jolokan “Hit Squad” yang tugasnya membuat keputusan mahkamah yang menyebelahi kerajaan terdahulu. Sebagai penjelasan, dalam kes mahkamah yang lebih tinggi, kes-kes ini diadili oleh panel yang terdiri dari tiga orang hakim yang akan membuat keputusan berdasarkan undi majoriti – sama seperti sistem juri di US tetapi di sini ianya terdiri dari hakim dan bukannya orang awam. Ini bermakna, berdasarkan teori, setiap hakim yang terlibat dapat memantau sesama sendiri, dan ini akan memberikan keputusan pengadilan yang adil dan saksama. Panel hakim ini dikenali sebagai koram. Apa yang terjadi di sini adalah koram ini “diatur” dengan penglibatan hakim-hakim “Hit Squad” dari permulaan perbicaraan. Walaupun masih belum jelas sama ada hakim-hakim ini hanya menurut arahan ataupun kelihatan seakan membuat keputusan tertentu, implikasinya di sini adalah keputusan kes seseorang tertuduh sudah pun ditentukan dari awal, dan ini bergantung kepada budi bicara kerajaan terdahulu dan bukannya kepada fakta, undang-undang, ataupun perbahasan yang dibentangkan di mahkamah – di mana ianya akan membawa kepada keputusan yang tidak adil. Mahkamah dipergunakan sebagai khidmat pemindahan wang Tuan Hakim Hamid menerangkan bahawa beliau tidak selalunya ditentang oleh hakim-hakim tertinggi kerana keputusan kesnya yang tidak memihak kepada kerajaan terdahulu...beliau juga ditentang apabila keputusan beliau memihak kepada kerajaan terdahulu. Ini adalah kerana kerajaan terdahulu dituduh mengambil kontrak dengan pihak yang dikaitkan dengan ahli politik (seperti syarikat yang dimiliki oleh individu yang mempunyai hubungan politik) tanpa niat untuk mematuhi/melaksanakan perjanjian-perjanjian ini, dan seterusnya menamatkan kontrak. Pelantikan politik ini seterusnya akan memfailkan saman terhadap kerajaan atas sebab melanggar kontrak dan akan menerima pampasan selepas itu. Walaupun ianya agak biasa untuk sesetengah pihak untuk memfailkan saman sebegini, namun ianya terpulang kepada mahkamah untuk memastikan bahawa kontrak tersebut adalah adil dan boleh dilaksanakan. Jika tidak ianya akan dianggap sebagai satu tipu muslihat. Masih keliru? Cuba lihat contoh berikut: Katakanlah anda dan majikan anda membuat perancangan untuk menggelapkan duit syarikat dengan membuat tuntutan palsu – anda akan membuat tuntutan ini dan majikan anda akan meluluskannya. Nampak senang kan? Tetapi masalahnya di sini adalah anda perlu pastikan bahawa tuntutan ini tidak memberi tanda-tanda amaran kepada bahagian kewangan syarikat. Ini bermakna perancangan anda haruslah dibuat dengan canggih dan teliti, ataupun anda perlu pastikan bahawa individu yang terlibat dengan bahagian kewangan amat memahami keadaan ataupun dia memang tak tahu buat kerja. Kononnya lah. Tuan Hakim Hamid menerangkan bahawa piawaian yang tinggi diperlukan untuk kes-kes pelanggaran kontrak yang berhubung dengan kerajaan kerana ianya melibatkan dana awam, dan menyoal adakah pengadilan yang berakhir dengan pembayaran pampasan kepada syarikat-syarikat ini adalah disebabkan oleh hakim-hakim yang kurang arif dengan undang-undang yang terlibat, ataupun kerana ada u(n)dang di sebalik batu. Jadi, apa yang kecoh sangat tentang hal ini? Memang nampak macam karangan budak jurusan undang-undang tahun satu yang cuba menerangkan sebab kenapa dia pilih jurusan tersebut, tetapi harus juga kita terangkan bahawa tugas badan kehakiman adalah untuk menterjemah dan menggunakan undang-undang tanpa campur tangan atau rasa bimbang terhadap balas dendam adalah satu aspek penting dalam mana-mana kerajaan setiap negara. Kami bertemu dengan Fahri Azzat, seorang peguam untuk mendapatkan hujahnya mengenai kemungkinan kesan JIKA afidavit ini terbukti benar: Ia akan melemahkan integriti dan reputasi badan kehakiman negara kita. Ia akan melemahkan kepercayaan umum terhadap kebolehan mahkamah dalam menegakkan keadilan. Rasuah dan korupsi mungkin berlaku di peringkat tertinggi sistem perundangan Ianya akan mengesahkan segala kecurigaan dan ketidakpercayaan bahawa sesetengah hakim dan kes diatur tanpa mengikut bukti dan undang-undang. Akhirnya, ia akan mewujudkan kelemahan dalam keselamatan negara kerana hakim-hakim yang tidak jujur boleh diugut. Namun artikel ini tidak merangkumi semua perkara yang diketahui oleh Tuan Hakim Hamid. Dalam afidavit beliau, Tuan Hakim Hamid hanya memberi maklumat ringkas yang hanya akan dijelaskan dengan menyeluruh olehnya jika Suruhan Jaya Siasatan Di Raja ditubuhkan. Ada juga maklumat tambahan dan kes yang tidak kami bincangkan di sini, seperti hakim-hakim dipengaruhi dengan tawaran pekerjaan dalam sektor timbang tara selepas mereka bersara [124] dan keputusan yang tidak memihak kepada Pembangkang terdahulu sebagai satu kriteria untuk kenaikan pangkat [69]. Sekali lagi, anda mungkin perlu membaca afidavit ini untuk mendapatkan gambaran yang lebih jelas, dan ini sudah tentu dengan andaian bahawa apa yang terkandung dalamnya adalah benar. Pada masa ini, Badan Kehakiman pula telah membuat laporan polis berkenaan tuduhan yang dibuat dalam afidavit Tuan Hakim Hamid. Namun, pada 22hb Febuari, Dr. Mahathir telah menyatakan bahawa kerajaan telah bersetuju untuk menubuhkan Suruhanjaya Siasatan Diraja (RCI) bagi menyiasat dakwaan ini. #BriyaniKeranaBenar"
"Here's how a British king's divorce in 1527 gave Malaysia the Sedition Act in 1948 If you clicked in to read this, it’s likely that the Sedition Act needs no introduction. It’s been part of our laws before Malaysia was even an independent country, and has been mired in controversy for just about as long. In more recent developments, it was supposed to have been abolished back in 2012 under the BN government (where it was instead amended) and, now, the current PH government have announced their intention to abolish it during the next parliament seating in March 2019. So although it’s pretty common knowledge that the Sedition Act came from the British, what you may not know is that it took over 400 years and two continents before it arrived in the shores of Malaya in 1948. So let’s hop into our imaginary Delorean and take a trip to England in 1527, when… King Henry VIII wanted a divorce The gist of the story is that King Henry’s wife wasn’t able to bear him a male heir, so he turned his attention to Anne Boleyn, one of his wife’s ladies-in-waiting and main character of blockbuster movies and Netflix specials. Although getting a divorce is pretty common nowadays, it was a strict no-no in King Henry’s time when England’s religious affairs were under the purview of the Catholic church. The eventual solution to this problem is for England to break away from the Catholic church and establish the Church of England in 1534, which led to a series of conflicts between Catholics and Protestants (the Church of England) now known as the English Reformation. So you might be thinking that this would be a really good time for someone to introduce a Sedition Act to put a stop to all these conflicts, right? Well… it actually took them almost 150 years to come up with that idea. Even before Henry VIII’s time, there was already a law to prevent high treason in the form of the Treason Act 1351. In simple terms, acts of high treason would be words or deeds that showed disloyalty towards the King and other members of the royal family. When King Henry became the head of the Church of England, he introduced the Treasons Act 1534, with clear instructions to make any opposition to his position as head of the Church punishable by death. Then, because the English Reformation continued to seed conflicts and spill over to a series of civil wars, it was only in 1660 that King Charles II drafted the Sedition Act 1661 to ""compass, imagine, invent, devise, or intend"" a levying of war.” The difference between both Treasons Acts and the Sedition Act is that the Treasons Acts required someone to actually commit an act before action can be taken against them (such as by waging war); while the Sedition Act 1661 lowered the criteria to include planning and discussion. But the biggest difference here is the requirement of intention – which is to say that the authorities must first prove that someone had intention to commit sedition before they can be punished. So since one of the controversies about the Malaysian Sedition Act is that proving intention is not a strict requirement for the authorities to take action, where did this change come about? Well for that, let’s hop back into the Delorean and head to 19th century India, where the British had expanded their wings of colonialism but were facing… Strong anti-British sentiments in India By the time British rule in India exchanged hands from the East India Company to the British government in 1858, anti-British sentiments were a boiling point. Just the year before that, the Indian Rebellion of 1857 sparked off many battles across India and led to heavy casualties on both sides. So tasked with stopping a bunch of rebellions, the British government (also known as the British Raj) decided to bring in their old friend… the Sedition Act, which was introduced in 1870 via Section 124A of the Indian Penal Code, with one very important change. Remember how the English Sedition Act 1661 required the proving of intention to commit sedition? Well, the Indian version removed that requirement. One of the key figures in India to be charged for sedition under this new provision was none other than Mahatma Gandhi in 1922. This is where we get a little closer to home, because India wasn’t the only colony that was causing problems for the British... Malaya didn’t want the Malayan Union (plus, communists!) At the end of World War II, the British had a bit of a PR problem when they resumed rule over Malaya after the Japanese left. If you remember your school history books, it was largely due to the British surrendering to the Japanese after the Battle of Singapore. At first, they tried to introduce a new administrative system called the Malayan Union, and when that didn't work out they made some changes and reintroduced it as the Federation of Malaya. By now, many people had grown tired of having the country being repeatedly conquered and colonised by one empire after another, so they fled to to the jungles and fought against the colonial government in a series of events that we know today as the First Malayan Emergency. The British saw a need to introduce Sedition laws to curb the rebellion, so a move was started in June 1948 and came into force (took effect) in July as the Sedition Ordinance 1948. While it’s not entirely certain, it’s likely that the Sedition Ordinance was heavily inspired by the Indian version of the law. Although there’s a video that explains this in greater detail, it’s also worthwhile noting that parts of our Criminal Procedure Code were taken from the Indian version as well. Like in India, the Sedition Ordinance also did not require proving intention. [READ MORE: Where do Malaysian laws come from?] During the period of the Second Emergency against the Communists, the Sedition Ordinance 1948 was revised and rebranded into the Sedition Act 1948 in 1970 and the rest, they say, can be read from Wikipedia. Will the Sedition Act become….ancient history? So, hopping out of the imaginary Delorean, you might be wondering what happened to the Sedition Act in modern times? However, it’s still used in India, where the Indian government has earned criticism for using the Sedition act against writers, journalists, and human rights activists for expressing criticism against the state. Although the Indian parliament has considered amending the law to make a distinction between legitimate criticism and those that incite violence, a 2018 report suggested that the government may be looking to further strengthen the law instead. It's also still used here in Malaysia, where the previous government has earned criticism for also using the Sedition act against writers, journalists, and human rights activists for expressing criticism against the state. Although the BN government promised to remove the law, then-PM Najib said that it would be strengthened instead. As previously mentioned, the current PH-led government has also voiced their intention to amend or remove the law. The UK abolished their sedition law in 2009. This article is co-written by Uihua and Joshua"
"Can Malaysian websites sue for plagiarism? We find out after our article was ""stolen"" Recently, local media site World of Buzz found itself in a world of buzz when the Malaysia subreddit placed a one-month ban on all WOB content after deciding that they breached Reddit’s policy against self promotion. You can read more about it here, but essentially the moderators made the decision after investigating claims that World of Buzz was using fake accounts to share their content and to defend the site against criticism. News of this ban surfaced even more criticism, most notably claims from an ex-employee and an ex-intern – with allegations that leg day was skipped when it came to practicing journalistic integrity: “I was immediately told that I had a strict KPI to follow, 3-5 articles a day ... If you remotely know how news reporting and video production works, you’ll know that this is practically impossible. Hence, why so many articles they publish are basically rip-offs of some other news source.” – World Of Buzz ex-intern, quoted from Reddit “[T]hese writers [...] have to scour everywhere for the most gossip-filled content that would appease the makcik2 bawangs out there, despite not having properly sourced for its legitimacy.” – ex-Content Lead, quoted from Reddit This segues into an incident last year, where we called out several media sites for allegedly stealing our article on kenduri tents. And this year, we don’t even need to use “allegedly” because our writers found themselves on World of Buzz’s feature image for an article which contained ‘similar’ facts with the one we posted a few days ahead of them: As you can see in the image above, we called them out for it and the image was taken down. Now this issue can be seen from two main angles: The first is on a personal note, as our writers did not consent to their faces being used on another site—and second, if media sites can repost something posted by other sites in the first place. So the interesting question here is, would it be possible to sue other sites for plagiarism, if our content/work gets stolen? No, we can’t sue anyone for “stealing” our work :( Well, more accurately, we can file a lawsuit but there’s a pretty high chance we’ll be losing the case. This is because the site didn’t exactly copy-pasta our articles, which would amount to plagiarism. Let’s briefly take a look at what our copyright laws actually say. In Malaysia, the law that governs this area is the Malaysian Copyright Act 1987 and protection is given to any piece of work that is regarded to be original, so long as it is expressed in written/tangible form. Plagiarism isn’t legally defined in the Malaysian law—however it is widely understood that producing a document without the original creator’s permission can amount to a copyright infringement. However, it’s not plagiarism if you were ‘inspired’ by a certain work, but made sufficient efforts to make it original in its own right; as explained in Section 7(3) of the Act: “(3) A literary, musical or artistic work shall not be eligible for copyright unless— (a) sufficient effort has been expended to make the work original in character; and (b) the work has been written down, recorded or otherwise reduced to material form.” So to bring it back to this current drama, the easiest claim of plagiarism will be thrown out the courtroom window...if we plan to sue someone for using our images or writing similar content. Now if another media site published similar articles with similar angles within hours of ours, we actually can’t sue people for copying of facts (Yes, this is a fact). Facts aren’t entitled to copyright laws, so statements like “Water freezes at zero Celsius” or “Trees produce oxygen” or “It would be ironic if someone steals this article” are factual statements that cannot be copyrighted. So although it’s highly coincidental that World of Buzz wrote was suddenly inspired to write about employment laws out of the blue and decided to use a similar image—they referenced rules and facts that can be found in Malaysian law. So how can sites protect their content? Well, if we’re looking purely at written content posted on websites, it’s not going to be easy. While there are steps to file copyright protection for your work, it means that you’ll need to do it for every article that you publish—an impossible task if you publish once (or more) a day. However, there are other creative ways that other sites have taken to hit back at content stealers. One example is myth debunking website Snopes.com, who put up a fake article about the origin of the song Sing a Song of Sixpence. This “information” later “inspired” other sites to write it as fact without citing Snopes as the source; and even found its way into a card game – effectively proving that these companies took content without attribution and didn’t bother verifying their information. Rest assured though, Asklegal will never (and can’t) do such a thing as we spend a lot of time making sure that our content is as accurate as possible. Instead, the best option available for most websites is really to name and shame, either as a reminder to give credit where its due; or for the satisfaction of making sarcastic jabs at them...like what this site did. As an additional fact, while the Malaysian Copyright Act does provide some exception for situations where content can be reproduced for purposes of reacher review or reporting, it states that this must be accompanied by acknowledgement of the original source. Section 13(2) of the Malaysian Copyright Act 1987 (emphasis by Asklegal): “(2) Notwithstanding subsection (1), the right of control under that subsection does not include the right to control— (a) the doing of any of the acts referred to in subsection (1) by way of fair dealing including for purposes of research, private study, criticism, review or the reporting of news or current events: Provided that it is accompanied by an acknowledgement of the title of the work and its authorship, except that no acknowledgment is required in connection with the reporting of news or current events by means of a sound recording, film or broadcast;” TLDR; content creators may be less mad if you at least gave them credit. So why is Asklegal making a mountain out of a molehill? If you were to ask anyone in digital publishing how much of a problem content theft is, it’s likely they’re going to tell you that it’s a common problem (here’s an example from Cilisos). If they say otherwise, check their laptop keyboards for signs of extreme wear and tear on the Ctrl, C and V keys. Legalities aside, it appears that World of Buzz made a public apology and one on subreddit over the issues involving the media company. As much as we’re flattered to be part of another site’s post or get our work ‘quoted’ due to the legitimacy done on the research—we still feel sense of dejection to see 3 days of work being taken by someone else in 3 minutes."
"Can Malaysians sue the government if they don’t follow their election manifesto? Whenever there is an election, each of our political parties (or coalitions) usually draw up an election manifesto - a list of things they want to do if they get elected. If you happen to be someone who has never seen an election manifesto before, here are Pakatan Harapan’s and Barisan Nasional’s for reference. After a speech Dr Mahathir made in August 2018 showing that the government managed to achieve 21 of its 60 manifesto promises within 100 days (read the full speech here), many people took this to mean that the government had failed to deliver and had therefore broken their manifesto. While there is some debate on whether certain promises have been broken or are merely “in progress”, there have even been times where citizens themselves have urged the government to break their manifesto - such as when they petitioned for Dr Mahathir to take up the portfolio of Education Minister. It never feels good when manifesto promises are broken, especially when the promises were a big reason why you supported them in the first place. So actually, is the government legally bound to follow their manifesto after getting elected? [READ MORE - How do you sue the government if they make a mistake?] Short answer: No, manifestos are not legally binding While we are used to people referring to manifestos as “promises”, they are actually more like just a statement of intention - because there is no contract between the political party and the people. In basic terms, a contract forms when: A person promises something to another person The other person accepts and offers another promise in return It must not involve illegal matters, and must be enforceable in law Things that are not enforceable include the matters covered in Sections 25-31 of the Contracts Act 1950, which for example, includes the term in your employment contract stating you can’t join competitors after leaving the company for a certain period of time. [READ MORE - Can Malaysian employers stop their ex-staff from joining a competitor? Without the mutual agreement communicated to both parties, and the intention for both parties to be bound by law, there is no contract. So, you can’t actually sue the government for broken manifesto promises. Manifestos are usually only announced by a political party - there is no ceremony where supporters will come forth to sign it and pledge their vote. So without getting into the complications of contract laws here, you can think of a manifesto as merely a moral obligation. It might disappoint you less to think of it as the political party’s outline of plans they have, which might have to change over time due to one reason or another. So is there a way to force the government to keep their promises? We can’t. Some people have tried to sue the government in the past for going back on their manifesto promises, but lost. Below we’ll give you a breakdown of the case and why it was decided that way. The one case we have on this matter is State Government of Selangor & Another v Murtini bt Kasman & Others (not available online to the public). Some women from the Selangor Single Mothers Association had decided to sue the Selangor government in 2012 because the Pakatan Rakyat coalition broke their 2008 manifesto promise to give a monthly allowance to single mothers in Selangor. Their claim was based on “legitimate expectation” that they would receive the allowance from the government because of the manifesto. The court held that governments should not be legally bound to follow their manifesto 100% because: The manifesto is promised by a political party before they are elected to attract support, which are different from solemn promises or statements made by a government. A political party and the government are two separate bodies. If it doesn’t make sense to you that the political party is not the same as the government, you’re not alone. The government doesn’t exist until they are formed after the election, and while political parties make the promises, they only get the power to fulfill those promises once they become the government. [READ MORE - Who runs Malaysia after Parliament is dissolved for an election?] By that time, members of the government are almost never 100% of whom the political party initially planned to work with; members will differ, coalitions and alliances are formed and broken. So it may become impossible for the formed government to agree to each and every manifesto promise. And this is before we even consider that economic conditions, social values, and public opinion can all change by the time each promise goes to implementation, and new information may come to light. To use a familiar example, if you as the government suddenly discovered a huge pile of debt, you may have to reconsider the budget allocations you promised because you no longer have as much money as you thought you could spend. No one supports every single promise made by a political party The judges in the Selangor government case relied upon an English case as authority - Bromley London Borough Council v Greater London Council and another. The English judges decided that manifestos should not be followed exactly as they are like gospel. When a party comes to power, they should consider their promises on merit again, and must consider how circumstances have changed in the present case, whether it’s practicable and fair to implement, and whether there will be big disadvantages in doing so. To follow the example used in that case, it could be a bad idea to provide transport subsidies as promised in a manifesto if the government would be forced to raise taxes to fund the subsidies. The other point brought up was that the people vote for a party overall, not the entire manifesto. You may not agree with every single item in the manifesto and still support the party. You might be influenced by a few in there, but other people are influenced by different promises. Some people might not be influenced at all. What can Malaysians do about broken manifesto promises then…? Well, you could always reach out to your MP, or vote differently come the next election. The problem with voting in another party though, is that you don’t have any guarantee that they will fulfil their promises either, especially if you have limited options for who you can pick in the first place."
"A Malaysian judge reveals 4 ways corruption allegedly spread through the courts [Klik sini untuk versi Bahasa Malaysia] By the time you’re reading this, you would have read the explosive news about how a Court of Appeal Judge named Datuk Dr Hamid Sultan Abu Backer did a whole bunch of mic drops in relation to alleged misbehavior by judges within the Malaysian court system, which is linked to: A lawsuit by Karpal Singh’s daughter Anwar’s sodomy trial Indira Gandhi’s child conversion to Islam trials Misuse of public funds; and ……..Italian food??? Wait, what? Unless you read the entire 63-page document that’s making its way around social media, there’s a chance nothing you’ve been reading about this whole saga makes any sense – but that’s what we’re here for. Here’s the gist of the story: Karpal Singh’s daughter, Sangeet Kaur Deo, is suing Chief Justice (kinda like the head of all Malaysian judges) Richard Malanjum in order to get a declaration (an official statement from the court) that the CJ failed to protect the integrity of the judiciary (the court system) during her father’s 2009 sedition trial, as well as information on an internal probe that the judiciary had conducted on the Karpal Singh and Indra Gandhi trials. Essentially, she’s claiming that the trials weren’t fairly conducted (judicial interference) and questioned why the CJ decided to suspend investigations into her father’s trial in November 2018. [READ MORE: Malaysia has a new Chief Justice...but what does he do?] This is where Justice Hamid comes in. According to his background included in the affidavit, he’s currently a judge in the Court of Appeal and, over the years of his practice, written reference books which our law-practicing readers will know as the Janab Law Series. Oddly enough, he also highlighted his prowess as a master cook and restauranteur, notably his ability to prepare nasi briyani for 10 thousand people, and claims that if he were found to be dishonest, corrupt, or incompetent, he would give up his writing career and open up a Janab’s Briyani House chain of restaurants. In other words, you might say he’s... At Sangeet Kaur’s request, Datuk Dr Hamid Backer filed an affidavit in support of her claims, by highlighting several incidents where judges weren’t properly doing their jobs, or were aware of what was going on but didn’t do anything about it. In short, he wrote it to backer up. We will make references to parts of the document used in the article and, in case your Whatsapp service has been down the past few days, you can download the affidavit here if you want to read the entire thing yourself. But how true are these claims? While it may be very easy to immediately accept the contents of the affidavit as true – after all, he IS a judge so he must have seen things, amirite? – the answer at the time of writing is that nothing is true until further investigation, but there may be some weight to it. This comes from understanding what an affidavit is. An affidavit isn’t what happens when you put Redoxon into water (that’s an effervescent). Rather, an affidavit is a sworn statement documenting points or events that the writer experienced and believes to be true (or what most people will call a “fact”). The difference between this and a Facebook post or an anonymous letter is that an affidavit is filed under oath, meaning that you can be jailed up to 3 years and possibly fined for lying in an affidavit. Basically, if you lie in an affidavit, you’re giving false evidence; which is a crime. Section 191 of the Penal Code – False evidence: Whoever, being legally bound by an oath, or by any express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false, or does not believe to be true, is said to give false evidence. So it’s very important to note that the following points in this article cannot be taken as a fact or truth by any means. It’s what Justice Hamid has sworn to be truth, but whether or not it’s actually true remains to be established. [Update – On February 21st, Dr. Mahathir confirmed that the government will be setting up a Royal Commission of Inquiry (RCI) to investigate the allegations] Another thing that we should clarify is that the CJ mentioned in the incidents has not been identified by name, and may even refer to different people since there have been 9 Chief Justices since 1994. Justice Hamid refers to him/her as “ARLC”, which is a shortened nickname for “Antagonist of Rule of Law and Constitution”. 1. It all started with an Italian lunch It’s unclear whether or not those involved had The Sopranos in mind when setting up their lunch appointment, but Justice Hamid mentions that, about a month before GE14, several judges including a top judge and himself met for lunch at an Italian restaurant. Over lunch, the judges discussed their concern that they would be removed from their jobs or be subject to a tribunal if the Opposition (Pakatan Harapan) won the election. Although it’s not mentioned if any specific cases were discussed over the Italian lunch, Justice Hamid recounts in his affidavit several high profile political or constitutional cases where outside powers interfered in court decisions. Here are a few in summary: Anwar Ibrahim – During Anwar’s appeal, the panel of judges (coram) involved in the case were regularly told what to do [49B]. He also claims that the Court of Appeal “brushed aside” questions of whether Anwar was given a fair trial in the first place since the prosecution were not able to prove their case [100]. Indira Gandhi – The Indira Gandhi case was a constitutional challenge on whether cases related to Islamic conversion should be heard in Syariah or Civil courts. Datuk Dr. Hamid claims that the CJ reprimanded [91] and threw tantrums [92] at him for ruling in favor of the Civil courts Karpal Singh – Before the decision on Karpal Singh’s appeal against his sedition conviction was announced, the 3-judge coram initially voted in favor of acquittal (to dismiss the charges). However, a top judge called them and asked to uphold the conviction (keep the charges) [50], which was the final decision that was announced. The importance of the Italian lunch discussion is that it was basically a confession relating to guilt that such interferences did happen. To him, this should be grounds to start a Royal Commission of Inquiry (RCI) into the behavior of some judges as well as some practices that compromises the integrity of the legal system… something that he had been pushing for some time. 2. Judges were promoted because they went to the right school Malaysia has a court system that, in simple terms, is based on a hierarchy with the Federal Court being at the top of the food chain. You can read more about the court system here, but suffice to say that judges are also chosen to move up the court system based on criteria such as number of judgments, quality of judgments, and qualifications. In a way, the court system is similar to a company where employees are promoted based on how well they perform. But like in any company, problems may arise when employees are promoted based on their relationship with their bosses – and that’s what Justice Hamid claims is happening within the courts. From the screenshot above, Justice Hamid is essentially saying that some judges were promoted either because they happened to attend the same school or because they simply followed what other top judges asked them to do. As a result, at least 80% of judges from ARLC’s time came from the same university or service [25]. On the flipside, judges who refused to follow ARLC’s instructions weren’t promoted [41-45] or were harassed to change their judgments [103-107]. 3. There was a “hit squad” of judges to assassinate... the law We didn’t make that up. There’s apparently a group of judges nicknamed Hit Squad that would make judgments that favored the past government. To give you an idea, in the higher courts, cases are heard by a panel of three judges who will make decisions based on a majority vote – kinda like the US jury system but with judges instead of civilians. In theory, each judge can keep the other in check, and this should result in a fairer trial. The panel of judges are called a coram. What happens here is that the coram is “fixed” by inserting Hit Squad judges from the get-go. While it’s unclear whether these judges simply followed instructions or were seen to be more likely to make certain decisions, the implication here is that the person on trial is already predisposed to win or lose their case depending on what the previous government wanted the narrative to be, rather than any fact, law, or argument presented in court – basically resulting in an unfair trial. 4. The courts were used as a money transfer service Justice Hamid mentions that he didn’t always earn the disapproval of top judges because he ruled against the past government… he also earned disapproval when he ruled in support of the past government. This is because the past government would allegedly get into contracts with political nominees (such as companies owned by people with political connections) with no intention of honoring/carrying out these agreements, and terminate the contract. The political nominee will then sue the government for breach of contract and receive compensation in return. While it’s perfectly normal and acceptable for parties to sue over a breach of contract, it’s also up to the court to ensure that the contract was fair and enforceable in the first place. Otherwise, it would be considered fraud. If you’re still confused at how this works, here’s a different example: Let’s say you and your boss hatched a scheme to extract money from your company by filing a bunch of false claims – you’d make the claims, and your boss will approve them. While it sounds easy enough, there’s a problem with this plan… you’ll have to make sure that it doesn’t raise any red flags in the finance department. This means that your plan must be extremely sophisticated, or you’re sure that the person in charge of finance is extremely understanding or not very good at their job. Allegedly. Justice Hamid argues that a higher standard is required when looking into breach of contract cases involving the government as it involves public funds, and questions if previous judgments that ended up in payoffs to these companies were a result of judges not being familiar with this aspect of the law, or that some form of hanky-panky was involved. So… why is this such a big deal? At risk of sounding like a first-year law student’s essay on why they chose to study law, the judiciary’s role in interpreting and applying the law without interference or fear of retaliation is an important part of any country’s government. We spoke to lawyer Fahri Azzat, who summarized the possible repercussions IF the affidavit is true: It severely undermines the integrity and reputation of our local judiciary It weakens the people’s faith in the ability of the courts to do justice Corruption may be occurring in the highest of judicial offices It confirms the suspicion and distrust that some judges and cases were fixed and decided not on evidence and law Finally, creates a national security vulnerability because these corrupt judges can be blackmailed. But this article doesn’t contain all of what Justice Hamid claims to know. In his affidavit, Justice Hamid left a whole bunch of teasers for information that he’ll only reveal if Royal Commission of Inquiry (RCI) takes place. There’s also additional information and cases that we left out to keep this article (somewhat) concise, such as judges being influenced by post-retirement job opportunities in arbitration [124] and that making judgments against the then-Opposition being a criteria for promotion [69]. So again, you may want to read the affidavit for yourself to get a fuller picture. Of course, assuming that everything contained in it is true. At time of writing, it’s been reported that the judiciary has filed a police report over the allegations made in Justice Hamid’s affidavit. However, as mentioned earlier, Dr. Mahathir also confirmed that the government will be setting up an RCI to investigate his claims, soooo……. #BriyaniKeranaBenar ?"
"PAS and Sarawak Report sued each other in court. Here's why they dropped the case For a little backstory, the Sarawak Report published a story stating that RM90 million was given to top PAS leaders to get their support for BN and UMNO. Hadi Awang, the President of PAS, filed a libel suit (basically claiming that the story written was not true) against the owner of the Sarawak Report, Clare Rewcastle-Brown in a British court. But it didn’t end there, because Clare counter-sued (sued him back) claiming that Hadi conspired with Najib to discredit her website. Then in a turn of events which can only be describe as potong stim, both parties agreed to settle the matter of court. With most of the settlement terms being secret, the only thing we know about it is – Allegedly no one has to pay any cost, meaning they each cover their own court filing fees, their lawyers fees, etc. But this fact has been disputed by the Sarawak Report recently. Hadi and Clare agreed to take back all the allegations made in court. Speaking of potong stim, if you’re reading this article for news or thoughts on the Hadi v Clare saga, this is it. Essentially, the outcome is as if neither party sued the other at all. However, what we can do for the rest of the article is to tell you how out of court settlements work, and whether or not you should offer or take one if you were suing someone or getting sued yourself. Offering to settle may be cheaper and faster than going to court Although both the person suing (plaintiff) or the person getting sued (defendant) can offer to settle out of court, more often than not it’s usually defendant. But you might be asking yourself why anyone would do something so silly – after all, if you win, you may end up not paying anything at all (as a defendant) or getting the full amount you asked for (as a plaintiff). Well, think of it as hedging a bet… if you aren’t 100% sure that your investment is going to pay off, you might put in half of your life savings rather than going all in. So in the context of a lawsuit, if a defendant feels like his chances of losing are high, a settlement could be a cheaper and faster option. For a plaintiff, it could be a faster option to get money than waiting for a long time for the trial to finish. Usually this is an example of how a settlement offer works: John sues Mary for RM10 million. Mary realises she’s gonna be broke if she loses. Mary offers John RM5 million to settle the matter once and for all, instead of going through lengthy trials and waiting for judgement. So yeah, in a sense it’s cheaper for Mary if John accepts the offer because, don’t forget, the longer the trial lasts, the more expenses you’ll incur (lawyer fees, court fees, travel, etc) But it has to be emphasised that John (the plaintiff) has no obligation to accept the settlement/offer. Some people may have the desire to go through the whole trial for personal reasons – perhaps if he believes he’ll win the case at the end and get more money, or it could be a question of proving that he was right #beranikeranabenar. So…. does that mean John has absolutely nothing to lose by rejecting the settlement offer? Not really. There are a few ways John can get penalized for rejecting, even if he wins the case. One obvious penalty is that the court may ask Mary to pay him less than what he asked for (or worse, what Mary offered to pay him out of court). Another possible penalty is that John may end up paying more for his legal fees. This is because, in a lawsuit, the court usually asks the loser to foot the cost of the winner’s legal fees (lawyer fees, court filing fees, etc). However, the court also has the power to decide how much must actually be paid. In continuation of the John and Mary saga… John rejects Mary’s RM5 million offer John wins the case, but the court awards him only RM4 million John spent RM100k on legal fees The court asks Mary to pay John RM20k to cover his legal costs. Although he’s the winner, John is RM1,080,000 poorer than if he had taken Mary’s offer There are several technicalities that we won’t get into for this article, but the takeaway message is that you cannot expect a full payout even if you win a case. So now if you’re thinking that an offer to settle out of court may be the best course of action, do know that... You must make the offer before the court gives judgement If you’re gonna tell your asian parents some bad news, timing matters. Similarly, when you’re making an offer to settle, timing is very important too. An offer to settle will only be valid if it’s done within a certain time period. According to Order 22B Rule 2 of the Rules of Court, an offer to settle can only be made between two events – namely after a court action has started and before the court actually gives out final judgement. The reasoning behind it is extremely simple – there’s no point offering to settle after final judgment because um….the court already settled it. So if you’re thinking that this is probably the most economical way to handle a court case, don’t jump the gun just yet. Remember, always follow the advice of your lawyer first."
"Taking photos of buildings in Malaysia isn't illegal because of this copyright law Nowadays, it’s almost unheard of to go on a holiday without taking a bunch of photos and videos for your social media friends and followers to enjoy and be envious over. However, it may come as a surprise to know that different countries have certain restrictions on photo-taking.... From fairly obvious ones like Budapest law requiring permission from people who end up in your pictures, to oddly specific ones like not photographing the Eiffel Tower at night. So that leads to…. What about Malaysia? You have automatic permission to take photos in public spaces Generally, we have the all-clear to take photographs in public in Malaysia. Why? Simple, we don’t have any laws saying you can’t. That is of course, as long as you’re not committing a crime in doing so, like harassing someone. [READ MORE - Can you legally stop someone from taking photos of you in Malaysia?] That being said, there shouldn’t be anything wrong with taking a picture in front of an iconic building, right? Actually, there’s one thing wrong with that - under Malaysian law, the building is copyrighted. Building designs qualify as “artistic work”, just like drawings and photos It might surprise you, but it’s clearly stated in Section 3 of our Copyright Act 1987 that: “ “artistic work” means— (a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality; (b) a work of architecture being a building or a model for a building; or (c) a work of artistic craftsmanship,” - emphasis added The requirement for the building design to qualify for copyright in Malaysia is in Section 10(2)(b) of the Copyright Act - the building just needs to be built in Malaysia, or be an artistic work that’s incorporated into a building’s design. Being a copyrighted work, only the copyright holders are allowed to reproduce it in any material form as long as the copyright exists, which includes replica models of the building. [READ MORE - How does copyright law work in Malaysia?] But the reason why we don’t get into trouble for photographing buildings on a daily basis is that... Malaysia has an exception for works displayed permanently in public The reason why you and I consider it ridiculous to be fined and jailed for photographing KL Tower is because Section 13(2)(d) of the Copyright Act restricts the copyright holder from controlling: “the reproduction and distribution of copies of any artistic work permanently situated in a place where it can be viewed by the public;” - emphasis added So for example, an advertisement on a billboard is not permanently situated there - it can always be changed. But a building is quite permanent since you can’t just decide to take it down one day like deleting a social media post (unless you demolish it of course). This kind of law is generally known as a freedom-of-panorama clause in copyright law, which allows the public to freely take pictures of buildings. And actually, not every country has a freedom-of-panorama clause. One of these countries is France, as mentioned earlier. A famous example is the Eiffel Tower, which is legal to take photos of in the day time because the copyright has expired on it, so it’s in the public domain. But the design of the lights on the tower at night was installed in 1985, and copyright lasts in France until 70 years after the creator’s death. So unless you’ve gotten permission, it’ll only be legal to take pictures of the Eiffel Tower at night 70 years after the designer dies. But there hasn’t been a court case for the Eiffel Tower - yet… If you’ve actually taken a picture of copyrighted buildings before in France, don’t worry too much. Unless you’re commercially exploiting the photo for profit, the SETE (“Société d’Exploitation de la Tour Eiffel” or the Society for the Exploitation of the Eiffel Tower) doesn’t have a lot of reason to send you a Letter of Demand, or take you to court. It’s just not worth the trouble, but they still have the right to do so. [READ MORE - Thinking of suing someone in Malaysia? Consider sending them a Letter of Demand instead.] [READ MORE - 5 things Malaysians keep getting wrong about copyright laws]"
"Is it legal to buy sex toys in Malaysia? Valentine’s day is here, and it means time to shop for a meaningful gift for your significant other. You’ve bought the usual chocolates, flowers, jewelry in the previous years, so this time you wanna be a little different and spice it up. And what would be spicier than a gift that would generate a buzz during private time in the bedroom (batteries not included)? So whether it’s for private use or a gag gift for that one bachelor friend who spends too much time watching anime, you’d find in a google search that not only are these adult toys being sold openly on online trading platforms; but there are actual physical stores in shopping malls selling them as well. But given the fact that Malaysia is strict enough on enforcing decency that you can’t even legally access adult websites in Malaysia without changing your DNS, would it actually be legal to buy and own these adult toys? It’s illegal to own obscene objects The legality of buying adult toys have been asked by our readers a lot, and the reason why it took a while to write this article is because there isn’t much information on the matter. But fret not, we did find one law that may fit the bill. According to Section 292 (a) of the Penal code (in part): “Whoever— a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever;... ...shall be punished with imprisonment for a term which may extend to three years or with fine or with both. This section reiterates the term “obscene” quite a bit and for the purposes of our topic all you should know is that – the law says that it’s illegal to own an obscene object. And those caught owning obscene objects may be liable to three years in jail and/or a fine. So now the buzz-worthy question would be, are adult toys considered obscene objects? To answer that question, we must first know what “obscene” actually means. Following case laws from UK and Malaysia, obscene objects are those that have a tendency to deprave and corrupt public morals. Basically, objects that the masses would find offensive and disgusting. However, the problem with this definition is that the law and the public may have very different views of what is actually means. For example, most true blue Malaysians may consider cheese char kuey teow to be the lowest depth of depravity and corruption, but it doesn’t mean the police are going to be raiding the shop anytime soon. Thus, to find out if this legal definition of obscene objects would apply to adult toys, we contacted lawyer Fahri Azzat for his opinion. Fahri is of the view that an adult toy will not come under this section because it’s not made with the primary purpose of being obscene. “I don't think it should come under the section because a sex toy is not made with the predominant purpose of being obscene...[because] obscene is defined as offensive or disgusting by accepted standards of morality and decency”. [However] it can become evidence if used for an obscene act or image. – Fahri Azzat in an interview with Asklegal However, Fahri cautions that the toy may still be used as evidence if you used it in an obscene act. Examples can include posting videos and pictures of yourself using them, to violating someone with them. While it can be argued that this can also extend to certain fruits and vegetables (we know what you’re thinking), it would be a lot harder to eat the evidence in this regard. What happens in the bedroom, should stay in the bedroom If there’s one solid answer that we can give you in regards to this question, it’s to keep things discrete and private. As we mentioned earlier, adult toys aren’t exactly hush-hush black market material here – they’re sold online and in a popular personal care chain which shares a name with Sherlock Holmes’ partner. With online stores, you’ll always see a note mentioning that the packaging is discreet; and we’re pretty sure that you’ll be asked if you want a plastic bag if you buy it from the physical shops. In other words, it’s gonna be very difficult to tell you’ve got a naughty toy in there. So it’s generally safe to say that, unless you go around doing lightsaber fights with your new toy, you’re gonna be okay. The only exception to this is if your toy is shipped from overseas, as there’s a likelihood that Customs will open it for inspection – you may end up with a confiscated toy or (arguably worse), explaining to the Customs officer what you’re planning to do with a Bad Dragon."
"Some degrees aren't recognized in Malaysia, but they aren't fake. Here's how it works... [This article was originally written in February 2019.] With the popularity of online education and international distance-learning courses booming, the fake education industry is also more prosperous than ever. The news is abuzz recently with a deputy minister having an alleged “fake degree” from Cambridge. Except it has nothing to do with the highly esteemed University of Cambridge in the UK, rather its from a similarly named Cambridge International University in the US (their website was hacked recently so we linked it to a cached version). The US Cambridge International University is suspected of being a “diploma mill”, meaning a fake university in the business of creating fake qualifications. The faculty members consist of images believed to be taken off the internet which include a model from a dating site and a US pastor accused of drug use and homosexual sex scandals. But before you breathe a sigh of relief because your (or anyone else’s) degree is from a actual physical college or university, hold that breath because there have been instances where graduates have returned home from real schools, only to find that their degrees aren’t recognized in Malaysia There’s a difference between a fake degree and an unrecognized one Instead of buying a bogus degree (or Diploma, Masters, or Ph.D) and faking it through life, you actually studied hard only to graduate and find out your qualification isn’t recognized. An unrecognized qualification isn’t fake though, it simply means that your course hasn’t met the standards or processes required in its origin country or in Malaysia. However, the lack of recognition or accreditation could be a warning sign your qualification is from a fake institution. So firstly, be sure to check if your course is recognized by relevant authorities in its country. For example, If you’re pursuing a qualification from the US, it’s best to verify if the college’s accreditation agency is approved by the Council for Higher Education Accreditation (CHEA) or the U.S. Department of Education. But wait a minute, just because a course is recognized abroad doesn’t mean it’s recognized in Malaysia. In Malaysia, courses and higher education institutions have to be accredited by the Malaysian Qualifications Agency (MQA). According to Section 81 of the Malaysian Qualifications Agency Act 2007 (Act 679) the MQA’s job is to... [...] establish and maintain a national register known as the “Malaysian Qualifications Register” in such form and manner as may be prescribed containing programmes, qualifications and higher education providers accredited under this Act. Basically, the MQA ensures that programs or qualifications must meet the Malaysian Qualifications Framework, which you can take a look at in the link provided. And if you’re thinking that you’re safe because your university is famous, think again. For example, back in early 2012 a major private university launched a homegrown law degree which at the time was yet to acquire an MQA accreditation (it was later accredited in 2014, item no. 67). Since an MQA recognized degree is required to eventually become a practicing lawyer, law students who pursue unrecognized courses can’t join legal practice. So how do you check if your course is accredited? Head over to the MQA website to search for your college/university under the relevant category, then look at the list of accredited courses to find yours. What if you can’t find your college or course on the website? Don’t panic just yet. Perhaps your college/course is in the process of full accreditation, so you may check here if your college or university has a provisional (temporary) accreditation. In 2017, students of a private college in KL protested over their college’s lack of MQA accreditation. The MQA later clarified that the college had a provisional accreditation since the whole process requires the first batch of students to reach their final year of study. Why does accreditation matter? Well, the MQA’s website lists a number of reasons, but we’ll focus on the two major ones. First, it serves as trusted quality assurance for you and your employers and facilitates the credit transfer process if you decide to further study locally or abroad. Second, an MQA recognized qualification is needed to work for the government (civil service) or in certain industries. As mentioned earlier, some professions (like lawyers) may require an MQA accredited qualification in order for you to do your professional papers or enter the industry. Of course, an unrecognized qualification isn’t the end of the world – you could still secure jobs in the private sector (since employers have discretion) or if you’re planning to be self-employed. However, faking your qualifications and lying on your resume could get you into trouble. Stay tuned as we’ll elaborate on this (and examine some local cases) in a separate article coming soon!"
"Bolehkah anda menghalang jalan dengan khemah kenduri di kawasan perumahan? Sebagai rakyat Malaysia, ramai daripada kita sudah pasti pernah menghadiri rumah terbuka yang dianjurkan oleh jiran-jiran kita, terutamanya semasa musim perayaan. Biasanya, sebuah khemah akan didirikan di hadapan rumah untuk majlis perkahwinan, upacara pengebumian dan apa-apa jenis majlis yang diadakan di rumah atas sebab-sebab peribadi. Kebanyakan masa, khemah-khemah ini mengambil separuh, ataupun seluruh kawasan perumahan di hadapan rumah yang mengadakan majlis tersebut. Soalan ini mungkin bermain dalam fikiran anda, iaitu, adakah penubuhan khemah di kawasan perumahan adalah sah dari segi undang-undang...ataupun tidak? Jawapannya adalah, ia tidak sah, namun boleh dilakukan. Anda mungkin keliru dengan pernyataan tersebut. Jadi, mari kita membahagikan penjelasan ini kepada dua perkara utama. Tindakan menghalang jalanraya adalah salah dari segi undang-undang Di bawah Seksyen 46(1)(a) Akta Jalan, Parit Dan Bangunan 1974, ia merupakan satu kesalahan untuk mendirikan dan menyelenggara sesesuatu halangan di tempat awam. “(1) Mana-mana orang yang – (a) membina, menegakkan, mendirikan atau menyenggara atau membenarkan dibina, ditegakkan, didirikan, atau disenggara sesuatu tembok, pagar, susur, tiang atau apa-apa himpunan sesuatu benda, atau halangan lain, di mana-mana tempat awam;” Akta tersebut menyatakan bahawa penubuhan apa-apa jenis bahan yang boleh menghalang kawasan awam dianggap suatu kesalahan. Anda bertanggungjawab untuk kesalahan tersebut, di mana anda boleh ditangkap tanpa waran atau didenda tidak melebihi RM500. Sekiranya kesalahan ini berterusan, denda akan ditingkatkan, sabitan kali kedua atau kali kemudian didenda tidak melebihi RM1,000. Walau bagaimanapun, terdapat suatu pengecualian yang diberikan kepada peraturan ini untuk halangan sementara pada hari kebesaran, dsb. “(4) Tiada apa-apa jua dalam subseksyen ini boleh menghalang pihak berkuasa tempatan daripada membenarkan apa-apa binaan sementara di sesuatu tempat awam atau penggunaan sementara mana-mana bahagian sesuatu tempat awam pada hari kebesaran dan upacara.” Ini bermaksud, bahawa Akta ini memberikan kuasa kepada pihak berkuasa tempatan untuk membenarkan orang awam menubuhkan khemah di hadapan rumah mereka semasa majlis, perayaan ataupun upacara. Jadi soalan seterusnya adalah, di manakah anda boleh memohon permit? Mestilah memohon kepada pihak berkuasa tempat anda! Setiap daerah di Malaysia mempunyai dewan tempatan sendiri (sbg contoh: MBPJ, MBJB, MBPP) yang menguatkuasakan undang-undang yang diluluskan oleh kerajaan. Oleh itu, apabila mendirikan sebuah khemah untuk majlis di rumah anda, anda sebaiknya mendapatkan permit daripada majlis tempatan kawasan perumahan anda untuk mengelak daripada melanggar undang-undang...ataupun pihak berkuasa tempatan pula yang akan menghadiri kenduri anda – dengan saman. Kami telah dapatkan informasi daripada dua pihak berkuasa tempatan, iaitu Majlis Perbandaran Kajang dan Dewan Bandaraya Kuala Lumpur mengenai perkara ini dan telah diberitahu bahawa anda boleh mendapatkan borang-borang ini terus daripada pejabat berkenaan, bergantung pada kawasan yang anda tinggal. Sebagai contoh, Dewan Bandaraya Kuala Lumpur (DBKL) sudah mempunyai borang permohonan di laman sesawangnya untuk mempermudahkan permohonan untuk mendirikan khemah. Permohonan hendaklah dilakukan dua minggu sebelum majlis untuk diberi kebenaran. Namun, anda mungkin masih tertanya-tanya, ”Mak cik Rosmah adakan kenduri untuk anaknya hari tu tak dapat permit pun...” dan ini mungkin berlaku kerana… Jiran-jiran tidak mempunyai masalah dengan pendirian khemah untuk majlis Pada akhir hari, undang-undang bukan semuanya, tetapi semangat kejiranan harus dipupuk. Jadi, satu cara yang bagus adalah dengan memaklumkan kepada jiran-jiran sama ada anda telah mendapatkan permohonan/permit daripada majlis perbandaran. Dengan itu, jurucakap Majlis Perbandaran Kajang telah menjelaskan secara puitisnya “[Meminta permit] bukan sesuatu yang amat penting, tapi baguslah kalau dapat permit. Tapi kena ingat, rambut semua orang hitam tapi hati lain-lain” Dan beritahulah jiran tetangga jika ada majlis yang akan dibuat dan laluan jalan perlu ditutup. Kebanyakkan jiran biasanya okay je dengan ini. Satu idea yang baik adalah untuk mengingatkan tetamu supaya lebih prihatin apabila meletakkan kereta di kawasan kejiranan dan elak daripada membuat bising pada waktu-waktu tertentu...dengan kecualian jika seluruh kejiranan juga berada di kenduri tersebut."
"MYEG was fined RM9.34 million for breaking competition laws. Here’s what happened. On 24 January 2019, news surfaced that MY E.G. Services Berhad (MyEG) had lost their judicial review case at the High Court, and the court upheld the fine of a whopping RM9.34 million by Malaysia Competition Commission (MyCC). We Malaysians generally know that certain companies in Malaysia enjoy business conditions not unlike monopolies, but we rarely hear of them getting punished out of nowhere. What happened here? They were fined for anti-competition business practices MyEG was penalized by MyCC back in 24 June 2016 for abusing its dominant position in the market. They actually appealed the case to the Competition Appeal Tribunal, where they also lost, before sending an application for judicial review to the High Court - which they lost as well. [READ MORE - How to take Malaysia's government to court if they mess up?] But when does a company have a dominant position in the market? Our Competition Act defines a dominant position as: “a situation in which one or more enterprises possess such significant power in a market to adjust prices or outputs or trading terms, without effective constraint from competitors or potential competitors;” Basically, it’s when they have enough influence that they can manipulate prices and business dealings, which their competitors have little power to stop. The law also notes in Section 10(4) that the amount of market share a company commands does not decide whether it has a dominant position or not. For example, a conglomerate company with a flour mill division that has only 20% market share might still be dominant because it has a lot of cash and influence from its other businesses. Which still leaves the question: what did MyEG do that was considered an abuse of their dominant position? They made it harder to renew PLKS insurance with their competitors MyEG’s subsidiary company, MyEG Commerce, had a contract with RHB Insurance to act as their insurance agent. One of the products they sold was insurance policies mandatory for the renewal of Pas Lawatan (Kerja Sementara) required by foreign workers (PLKS). Nothing wrong at this point. Thing is, MyEG provided automatic verification only for policies bought from RHB Insurance on their platform, making renewal much faster for them. If customers bought insurance from companies other than RHB Insurance - MyEG required additional verification, which of course made renewal more troublesome. As a consumer, you’d go for the RHB option almost every time. Why take more trouble than you need to, right? This is exactly the pressure placed on consumers to choose RHB Insurance over all others, helping MyEG profit over everyone else. This is an abuse of dominant position under Section 10(2)(d)(iii) of the Competition Act 2010, which makes it an offence to: “harm competition in any market in which the dominant enterprise is participating or in any upstream or downstream market;” There are plenty of other situations that are considered like controlling the input and output of resources in an industry, price predation, and many more, but we’ll cover them another time as we can’t get into all of them here. You can find some details about the case in MyCC’s press release from MyEG’s first appeal over here. But how did MyCC calculate RM9.34 million as a penalty? While it’s great and all that we’re preserving a competitive business environment in Malaysia, where did MyCC pull that number out from for the financial penalty to MyEG? How MyCC came up with that number is not exactly declared. What MyCC is declared by law in Section 40 of the Competition Act, but it gives them quite wide powers to decide on how much to fine anti-competitive practices. For example, they are given the powers to: Require that the offending practices are stopped immediately Specify steps that must be taken by the offending company to stop the offending practices Impose a financial penalty Give out any other direction as deemed appropriate As you can see, they have a wide area of discretion in what decisions they can make, which helps them stay flexible to the kind of situation they’re handling, but can be potentially abused. One mechanism that keeps MyCC accountable is the requirement in Section 40(3) that they have to publish the reasons for each decision they take against anti-competitive practices. Their power to impose a financial penalty is only limited in that it cannot exceed 10% of the global revenue of a company over the period of their wrongdoing. So, if an offending company made RM5 billion over a period of time, MyCC can fine them for an absolute maximum of RM500 million. Of course, MyCC can’t slap the maximum fine just because it wants to, and has guidelines for how it determines the total financial penalty. According to The Edge Markets, MyEG’s fine contained a RM307,200 financial penalty, and daily penalties of RM7,500 per day running from 7 October 2015 to 22 January 2019 (RM9.03 million). The daily penalty will continue to run until MyEG rectifies the situation with their PLKS renewal platform."
" Adakah motosikal memerlukan insuran untuk dapatkan cukai jalan? Memang tepat untuk mengatakan bahawa motosikal adalah sejenis mod pengangkutan yang cepat dan mudah. Malah, secara amnya ramai sedar bahawa menunggang motosikal tidak begitu selamat. Ia amat berbeza dengan kereta yang mempunyai rangka besi serta beg udara untuk mengelakkan kesan hentaman, manakala penunggang motor pula akan terdedah kepada kesan kemalangan jalan raya yang lebih teruk. Selain kemalangan, ada juga malapetaka lain yang boleh mencederakan penunggang moto. Menurut suatu laporan oleh Majlis Pencegahan Kecurian Kenderaan (VTRC), motosikal merupakan kenderaan yang mempunyai kadar kecurian yang paling tinggi di Malaysia. – 6,502 motosikal berbanding 4,472 kereta pada tahun 2016. Oleh sebab membonceng motosikal boleh mengakibatkan masalah yang lebih kronik, dikatakan lebih mahal, serta boleh membawa maut; sekarang, anda mungkin terfikir akan kebaikan yang boleh didapati jika penunggang motosikal akan mendapati apa-apa manfaat, untuk mengatasi masalah-masalah yang dijelaskan di atas apabila mereka memohon insuran. Serta, apakah kelebihan memohon insuran untuk motosikal berbanding dengan penunggang kereta. Malangnya, menurut Loanstreet dalam siaran akhbar semasa pelancaran sistem pembelian cukai jalan dan insuran atas talian, jumlah besar penunggang motosikal di Malaysia tidak mempunyai insuran lebih kurang 9.5 juta. Ini merupakan satu masalah sebab… Anda boleh dipenjarakan jika ditangkap menunggang motosikal tanpa cukai jalan dan insuran Menunggang motosikal melebihi had laju boleh mendatangkan denda saman lebih kurang RM150 – RM300, selain itu menunggang motosikal tanpa cukai jalan serta insuran boleh mendatangkan hukuman penjara. Loanstreet menyatakan* Seksyen 90 Akta Pengangkutan Jalan merupakan undang-undang yang dirujuk dengan insuran kenderaan, dan seksyen tersebut menyatakan bahawa menunggang motosikal tanpa insuran merupakan kesalahan yang boleh didakwa. Jika ditangkap, anda boleh disaman jumlah yang tidak melebihi RM1000 ataupun dipenjarakan tidak melebihi 3 bulan. Tambahan pula, Loanstreet juga mengatakan bahawa tanpa polisi insuran motosikal yang sah, JPJ tidak akan mengeluarkan cukai jalan untuk motosikal tersebut. Dan jika anda membuat keputusan untuk mengambil risiko menunggang motosikal anda tanpa cukai jalan, bersedialah untuk disaman lebih kurang RM 3000 jika ditangkap. Jadi, jika anda penunggang motosikal yang suka makan di restoran-restoran yang atas, bersedialah untuk makan nasi bujang untuk beberapa bulan. Oh dan jangan lupa ya, jika anda didapati tiada insuran dan merupakan pihak yang bertanggungjawab dalam suatu kemalangan, anda perlu membayar kos kemalangan tersebut, bukan pihak insuran yang perlu menanggung kos tersebut. Ya, kami faham benda alah insuran ini agak mengelirukan, ini disebabkan kerana insuran bukannya mempunyai suatu jenis sahaja, tetapi... Terdapat 3 jenis insuran motosikal Apabila berbincang tentang hal liputan insuran, anda mungkin tersempak dengan perkataan-perkataan seperti “insuran pihak ketiga”, “insuran kebakaran dan kecurian”, dan “insuran komprehensif”. Perkataan-perkataan ini agak sukar difahami, namun usah risau sebab kami akan menerangkan istilah-istilah ini – sebab sebagai penunggang moto, ia amatlah penting untuk anda mengetahui jenis-jenis perlindungan insuran yang ada. Jadi, jenis insuran pertama yang akan dibincang adalah… JENIS INSURAN MOTO JENIS LIPUTAN INSURAN PIHAK KETIGA TUNTUTAN KOS DARIPADA ORANG YANG ANDA LANGGAR INSURAN PIHAK KETIGA SERTA KEBAKARAN DAN KECURIAN 1.TUNTUTAN KOS DARIPADA ORANG YANG ANDA LANGGAR 2.KOS YANG DISEBABKAN KEBAKARAN ATAU KECURIAN KEPADA MOTO ANDA KOMPREHENSIF 1.TUNTUTAN KOS DARIPADA ORANG YANG ANDA LANGGAR 2.KOS YANG DISEBABKAN KEBAKARAN ATAU KECURIAN KEPADA MOTO ANDA 3.KOS KEROSAKAN KEPADA MOTO ANDA DISEBABKAN KEMALANGAN 1. Insuran Pihak Ketiga Apabila dilihat daripada aspek dating, “pihak ketiga” merupakan lelaki hensem yang awek anda mengurat secara rahsia. Namun, dengan topik insuran kenderaan pula, “pihak ketiga” merujuk kepada orang yang anda langgar dalam suatu kemalangan. Insuran ini sebenarnya merupakan sejenis bantuan kewangan yang agak murah, tetapi dengan liputan yang paling sedikit. Secara amnya, insuran ini hanya akan membayar kos perbelanjaan terhadap orang yang dilanggar. Insuran jenis ini tidak akan menganggung kos memperbaiki motosikal anda. Andaikanlah bahawa anda seorang penunggang moto dan terlanggar kereta orang lain secara tidak sengaja, dan orang tersebut mengalami kecederaan serta keretanya mengalami kerosakan yang teruk; jangan risau, sebab insuran akan bayar segala kos perubatan dan pembaikian kenderaan pihak tersebut. 2. Insuran Pihak Ketiga Serta Kebakaran dan Kecurian Insuran yang ini hampir sama dengan insuran pihak ketiga, tetapi ia mempunyai kelebihan yang berbeza sedikit. Insuran ini akan menanggung kos perubatan dan pembaikian kenderaan orang yang anda melanggar, dan juga akan meliputi kerugian yang anda akan menanggung jika motosikal anda terbakar atau dicuri. 3. Insuran Komprehensif Ini merupakan “bapa segala insuran”, kerana insuran ini mempunyai liputan yang terbanyak berbanding dengan dua insuran yang telah diterangkan tadi. Seperti “insuran pihak ketiga”, insuran ini akan menanggung kos perubatan serta pembaikian kenderaan pihak yang anda terlanggar. Seterusnya, dengan “insuran pihak ketiga + kebakaran dan kecurian”, kos kerugian yang disebabkan kebakaran atau kecurian kepada motosikal anda juga akan ditanggung dan diliputi dalam pakej insurans ini. Apa yang agak unik and melainkan insuran ini daripada yang lain adalah, insuran ini memberi liputan untuk kos perbaikkan moto anda juga. Jadi, andaikanlah motosikal anda dilanggar (simpang malaikat 44 ia tak berlaku), kos untuk memperbaiki enjin, cover set, dan lain-lain akan ditanggung juga! Nak insuran? Dah boleh beli guna smartphone Pada zaman dahulu, jika nak dapatkan insuran atau cukai jalan yang baru, kenalah cari ejen insuran atau mengunjungi penjual kenderaan. Nasib baik, perkara seperti itu mungkin akan lebih jarang berlaku sekejap lagi. Ini sebab sekarang, kita dah boleh dapatkan dokumen-dokumen ini atas talian. Untuk kali yang pertama di Malaysia, Loanstreet telah melancarkan sistem baharu dimana anda boleh membeli insuran serta cukai jalan atas talian. Faedah-faedahnya juga tidak berakhir di sini sahaja, ini kerana dalam sistem Loanstreet anda boleh mengubahsuai polisi insuran anda. Jadi, katakanlah anda takut kalau motosikal anda akan terosak akibat bencana alam, ataupun pembonceng anda akan tercedera dalam kemalangan, anda bolehlah menambahkan liputan ini dalam polisi insuran anda. Jadi sekarang, apa yang anda perlu lakukan adalah, buka laptop ataupun smartphone anda, dapatkan maklumat geran motosikal anda dan insuran lama, serta sistem perbankan atas talian atau kad kredit/debit, lawati laman web ini, dan tekan “GET QUOTE”. Jika anda menekan pautan ini, anda juga akan menolong Asklegal membuat duit sedikit jika anda membeli insuran (jangan risau tiada kos tambahan yang akan ditambahkan untuk anda pula), jadi kami ingin mengucapkan ribuan terima kasih atas jasa anda yang mulia ini. Jika anda tidak mempunyai insuran, dan ingin menunggang motosikal secara sah, ini adalah cara yang paling senang untuk manfaat anda."
"Is it illegal to block your neighbourhood road with a kenduri tent? As Malaysians, most of us have attended our neighbours’ rumah terbuka during festive seasons. Tents are also pitched during weddings or funerals –basically any kind of function which is held at home for personal reasons. Most of the time, these tents take up half, or almost the entire road on the street. Now, this may lead to an important question which would have been running in most of our minds for a very long time, on whether setting up tents in a neighbourhood is actually legal...or not? The answer to that question is, it isn’t legal, but it can be. As confusing as this may sound. Let’s break it down into two main parts for some clarity. It is actually illegal to obstruct roads. Under Section 46(1)(a) of the Street, Drainage and Building Act 1974, it is an offence to erect and maintain an obstruction in a public place. “(1) Any person who — (a) builds, erects, sets up or maintains or permits to be built, erected or set up or maintained any wall, fence, rail, post or any accumulation of any substance, or other obstruction, in any public place...” The Act says that setting up any kind of substance that will obstruct a public area is considered to be illegal. You can actually be liable for this as an offense, whereby you may be arrested without a warrant or asked to pay a fine up to RM500. In the case of a subsequent conviction, the fine goes up but not exceeding RM1,000. However, there has been an exception given to this rule for temporary obstructions during festivals, etc. “(4) Nothing herein shall prevent the local authority from allowing any temporary erections in any public place or the temporary use of any part of a public place on occasions of festivals and ceremonies.” This means that the Act allows the local authorities to permit the public to set up tents in front of their homes during any occasions or ceremonies. So the next question is, where do you apply for a permit? From your local council, of course! Every district in Malaysia has its own local council that helps enforce laws made by the Government (ie; MBPJ, MBJB, MBPP). So when it comes to setting up tents for functions in your home, it is best to get a permit from your local council in order to avoid breaking the law or having the local authorities crashing your kenduri. We checked with the Kajang Municipal Council and the Kuala Lumpur City Hall on this matter and have been told that you can get these forms directly from their office, depending on which area you live in. For example, Dewan Bandaraya Kuala Lumpur (DBKL) already has the application form on their site to make it easier for people to apply. It also takes approximately two weeks for the application to process, so it’s best to do it around that duration and ahead of your function. But you’re probably thinking to yourself. “I’m pretty sure my neighbour didn’t apply to have that 3-day funeral...” and that may largely be because… It’s okay if your neighbours are fine with it At the end of the day, it’s not just the law that stands but it’s also the sense of community that neighbours should have with each other. For the most part there should be some sense of give and take, especially for unexpected affairs such as a funeral or your son’s shotgun marriage – with the understanding that your neighbours may do the same in the future. So perhaps it all comes down to being considerate by informing your neighbours even if you’ve already applied for permission from the municipal council. As the spokesperson from the Kajang Municipal Council poetically puts it: “[Meminta permit] bukan sesuatu yang amat penting, tapi baguslah kalau dapat permit. Tapi kena ingat, rambut semua orang hitam tapi hati lain-lain” And perhaps, it may also be a good idea to remind guests to be considerate when it comes to stuff like parking and noise...unless the entire neighbourhood is also at the party."
"5 perkara yang anda tidak dapat tuntut jika terlibat dalam kemalangan di Malaysia Kita harap senario ini tak berlaku, tetapi jika anda terlibat dalam kemalangan di Malaysia, satu perkataan yang biasa didengari adalah “Tuntutan”. Pada asasnya, tuntutan dalam senario kemalangan merangkumi tuntutan ganti rugi daripada orang yang melanggar kereta anda, atau daripada insurans orang tersebut. Namun begitu, terdapat lagi satu jenis tuntutan yang anda boleh lakukan, iaitu…tuntutan mahkamah dimana anda menyaman pihak yang menyebabkan kemalangan tersebut. Perkara ini biasanya berlaku apabila pihak yang bersalah menyebabkan kerugian yang melampaui apa yang insurans mereka mampu biayai. Contohnya, liputan insurans pihak bersalah mungkin dapat membiayai kis membaiki kereta anda, tetapi ia tidak dapat menanggung kos rawatan perubatan anda jika anda mengalami kecederaan. Jika anda dalam situasi seperti ini, anda ataupun ahli keluarga anda perlu menyaman mereka di mahkamah dan tuntut perbelanjaan tersebut. Bagaimanapun, anda harus maklum bahawa hanya terdapat beberapa perkara yang anda boleh tuntut daripada pihak yang telah melanggar anda di mahkamah. Hakim tidak akan membenarkan anda untuk membuat tuntutan terhadap segala perbelanjaan, kerana terdapat batas terhadap apa yang boleh dituntut dalam sesebuah kes mahkamah – terutamanya dalam kes kemalangan kenderaan bermotor. Jadi, antara perkara-perkara yang anda tidak dapat tuntut selaku seorang mangsa kemalangan adalah.... 1. Kos rawatan di hospital swasta Secara amnya, jika anda mendapatkan rawatan di hospital kerajaan, anda boleh tuntut jumlah penuh perbelanjaan anda di situ. Tetapi, jika anda mendapatkan rawatan di hospital swasta, mahkamah tidak akan membenarkan anda untuk menuntut kos belanja tersebut – kecuali jika anda mempunyai alasan yang munasabah. Oleh itu, kalau anda bermati-matian ingin mendapatkan rawatan di hospital swasta dan anda ingin pastikan ia munasabah, kita boleh lihat justifikasi yang diberikan dalam kes Chai Yee Chong v Lew Thai. Dalam kes ini, Chai telah menyaman majikannya (Lew) kerana dia telah mengalami kecederaan ketika bekerja. Dia telah mendapatkan rawatan di hospital swasta dan cuba untuk menuntut kos perbelanjaanya daripada Lew. Namun begitu, mahkamah telah memutuskan bahawa dia tidak boleh menuntut kos untuk rawatan di hospital swasta kecuali atas sebab-sebab yang berikut: Hospital kerajaan tidak menyediakan rawatan yang diperlukan Anda memerlukan rawatan segera dan terdesak untuk ke hospital swasta Hospital kerajaan tidak mempunyai alatan atau doktor pakar yang diperlukan Dalam erti kata lain, anda tidak lah boleh pilih hospital yang paling mahal dan mewah untuk mendapatkan rawatan kerana tujuan anda ke hospital adalah untuk sembuh. 2.Kos perubatan tradisional Bagi sesetangah orang, apabila mereka demam atau dijangkiti selsema, mereka akan memilih untuk menggunakan perubatan tradisional daripada perubatan moden. Sama seperti ubat, realiti yang anda terlibat dalam kemalangan merupakan sesuatu yang pahit untuk ditelan, dan sesetengah orang mungkin inginkan perubatan tradisional untuk merawat kecederaan mereka. Bagaimanapun, jika anda memilih pilihan itu, anda harus tahu bahawa mahkamah mungkin tidak akan membenarkan tuntutan anda untuk perbelanjaan tersebut. Mengikut undang-undang, anda tidak boleh tuntut kos belanja perubatan tradisional. Walaupun pandangan ini tidak begitu popular, undang-undang sebenarnya merupakan entiti yang memahami kerana terdapat beberapa pengecualian di mana mahkamah boleh membenarkan tuntutan kos belanja bagi perubatan tradisional. Merujuk kepada kes Seah Yit Chen v Singapore Bus Service, Cik Seah berlanggar dengan sebuah bas ketika menunggang motosikal, dan memerlukan pembedahan tulang belakang, pembedahan plastik, dan beberapa rawatan lain untuk merawat kecedaraan yang dialami akibat kemalangan tersebut. Memandangkan kemalangan tersebut disebabkan oleh si pemandu bas, Cik Seah menyaman syarikat bas tersebut untuk kos rawatan hospitalnya dan juga untuk Perubatan Tradisional Cina (PTC) yang diambilnya. Mahkamah memutuskan bahawa seseorang itu tidak dapat tuntut kos rawatan traditional kecuali jika: Ianya munasabah untuk mendapatkan rawatan tersebut Rawatan tersebut dilakukan setelah mendapatkan nasihat daripada sumber boleh dipercayai Malangnya, mahkamah tidak menganggap bahawa rawatan PTC Cik Seah memenuhi kehendak di atas, jadi dia cuma dapat tuntut kesemua kos rawatannya...kecuali untuk PTC. 3. Kehilangan pendapatan jika anda telah mencapai umur persaraan Sebelum kita mengakaji undang-undang ini, kami ingin terangkan bahawa undang-undang ini bukan merujuk kepada seseorang yang telah bersara, tetapi seseorang yang telah mencapai umur bersara daripada pandangan undang-undang kerana kadangkala, ada orang yang masih bekerja selepas umur persaraan tersebut. Dalam situasi yang paling buruk, sebuah kemalangan bukan sahaja menyebabkan kecederaan, tetapi kecederaan itu amatlah serius sehingga menyebabkan mangsa terpaksa berhenti bekerja. Kami berharap situasi ini tidak akan berlaku kepada anda, tetapi kalau ianya berlaku, jangan risau kerana undang-undang membenarkan anda untuk menuntut pendapatan yang anda telah hilang dan akan kehilangan. Walau bagaimanpun, terdapat had terhadap tuntutan tersebut, dan ianya bergantung kepada umur penuntut. Menurut Seksyen 28A(2)(c)(i) Akta Undang-undang Sivil, seseorang tidak dibenarkan untuk membuat tuntutan kehilangan pendapatan serkiranya dia berumur 55 tahun dan ke atas. Misal katanya, apabila seseorang yang telahpun berhenti bekerja pada umur 55 tahun terlibat dalam kemalangan, dia tidak dapat menuntut kehilangan pendapatan pada masa akan datang kerana dia tidak lagi mempunyai pendapatan ketika itu. Perkara yang sama terpakai jika seseorang itu masih bekerja tetapi berumur 60 tahun (sudah menjangkau usia persaraan di sisi undang-undang), di mana dia tidak dapat tuntut kehilangan pendapatan yang akan datang. 4. Kehilangan pendapatan daripada punca haram. Sama seperti apa yang dibincangkan di atas, kali ini ianya bukan faktor umur, tetapi anda tidak dapat tuntut kehilangan pendapatan jika pendapatan anda datang daripada sumber yang tidak sah di sisi undang-undang. Dalam kes Chua Kim Suan v Government of Malaysia, Chua terlibat dalam kemalangan maut. Keluarga mendiang menyaman kerajaan Malaysia untuk pampasan bersama dengan pendapatan yang mendiang sepatutnya peroleh jika dia masih hidup. Namun begitu, Chua menjalankan perniagaan teksi yang tidak sah dan ianya tidak dapat dituntut. Kalau anda terlibat dalam kemalangan yang menyebabkan anda cedera parah dan tidak dapat bekerja, tetapi anda penjual DVD cetak rompak, anda mungkin akan menghadapi kesukaran untuk meyakinkan hakim bagi membolehkan anda menuntut kehilangan pendapatan. 5. Wang untuk kesakitan dan penderitaan....ketika anda tidak sedarkan diri Mungkin untuk anda kesakitan yang paling perit anda hadapi adalah apabila terlanggar kaki di bucu meja, dan walaupun kesakitan itu mungkin menyeksakan, kesakitan daripada kecederaan kemalangan adalah jauh lebih perit. Disebabkan itu undang-undang Malaysia membenarkan mangsa kemalangan menuntut wang bagi kesakitan dan penderitaan yang dialami akibat daripada kecederaan kemalangan. Tetapi, perkara tersebut juga mempunyai had tertentu. Jika kita lihat kes Lim Poh Choo, Lim mengalami kecederaan ketika menjalani sebuah prosedur perubatan akibat daripada kecuaian staf hospital. Lim cuba untuk tuntut ganti rugi terhadap kesakitan dan penderitaan yang dia terpaksa alami dariapda kecuaian tersebut. Apabila mahkamah mengutuskan perkara tersebut, mereka mengatakan bahawa mangsa hanya boleh menuntut untuk kesakitan dan penderitaan sekiranya dia dalam keadaan sedarkan diri. Pada dasarnya, mahkamah hanya akan memberikan ganti rugi jika mangsa sedar akan kesakitan yang dialami dan dapat merasakannya. Tuntutan hanyalah untuk mengembalikan anda kepada keadaan kewangan anda sebelum kemalangan, bukan untuk menjadikan anda kaya Kalau anda rasa ianya tidak adil apabila anda tidak dapat membuat tuntutan terhadap beberapa perkara, hal ini sebenarnya ada sebab. Tuntutan kemalangan berada di bawah tort kecuaian. Oleh itu, jika seseorang mengakibatkan kemalangan akibat cuai, dia harus memberikan ganti rugi kepada mangsa dengan tujuan untuk meletakkan mangsa kembali ke posisi kewangan yang asal seolah-olah kemalangan itu tidak berlaku. Ini tidak bermakna mangsa patut diberikan pampasan atau manfaat yang berlebihan. Kiranya, ini adalah cara mahkamah memastikan bahawa keputusan kehakiman adalah adil. Jika anda rasa jumlah asal yang diputuskan oleh mahkamah tidak adil bagi anda, anda masih boleh membuat rayuan kepada mahkamah yang lebih tinggi."
"Malaysia is the first in the world to start property crowdfunding.... but what is it? Remember when you were younger and you made that little sketch in your drawing book imagining what your first home would look like? And now that you're all grown up, are you a proud houseowner or a struggling millennial who can't seem to afford a house despite working very hard and laying off on the avocados? If you got the avocado reference, you’ll likely also be familiar with the concept of crowdfunding – where entrepreneurs with big dreams but small dollars attempt to get their seed funds from the public via sites like Kickstarter, GoFundMe, or IndieGogo. So, if someone can successfully get funded to make a potato salad, you might be wondering if you could get crowdfunding for…..your dream home? Well, it seems that someone in the Malaysian government had a similar idea (for houses, not the potato salad). It is known for a fact that one of the biggest housing problem in Malaysia is not availability, but affordability, which is why the, during the tabling of Budget 2019 in November, the federal government announced that it will introduce a ""property crowdfunding"" platform to help Malaysians buying their first homes. This initiative, said to be the first of its kind in the world, is dubbed as FundMyHome and was launched by PM Tun Mahathir in November 2018. Before you get too excited, it’s important to note that FundMyHome is very much at its initial stage, and this article will only cover basic information that’s currently available to help you understand the scheme (while the writer attempts to understand it herself) in its current form. What is FundMyHome? FundMyHome is basically a platform that allows you to ""buy"" your first home which you can occupy for 5 years with a one-time payment of 20% of the purchase price while the remaining 80% will be contributed by an investor (or investors). So, if you are seriously thinking about owning a home, you can choose a house from a list of participating homes on their site, buy a home for only 20% of the purchase price and legally own the home for the next 5 years. The 20% can be financed through regular means such as a bank loan, your savings, or withdrawals from your EPF account. In a nutshell, the scheme allows investors to assist Malaysians in owning a house, and is aimed at allowing first-time homebuyers to fully utilise a property for 5 years without having to worry about rent or loan repayments. But… what happens after 5 years? You might be wondering why investors would put their money into helping you buy a house (other than the goodness of their hearts, possibly), and this part will answer that question. As mentioned in the earlier point, once you have paid the 20% of the purchase price, you will become the legal owner of that house for 5 years. Once the 5 year period has lapsed, you can either choose to sell the house, keep it, or rollover on the FundMyHome scheme for another 5 years! Since property prices usually go up with time, you will get the 20% of the increase in value if you choose to sell the house. On the other hand, if you plan on staying in the house after 5 years, you may need to top up that initial 20% value to match the new price of the house. As for the investors, they have three options: Stay on as an investor Sell their 80% share to other investors or institutions Sell their 80% share back to you (the homebuyer) So in theory, it should be a win-win situation for everyone involved. But how will it protect homebuyers? Currently, the FundMyHome scheme does not come under any regulations yet. However, since the property crowdfunding scheme is expected to come into effect by the first quarter of 2019, the Securities Commission (SC) will be reviewing the details of the proposed structure for the property crowdfunding platforms and lay down a set of requirements that such alternative homeownership schemes should fulfill. We will update this article when that happens. In the meantime, iMoney has covered the financial part in greater detail, and you can also look at FundMyHome’s site for more information (and available properties)."
"What are ""kutu funds"" and why are they illegal in Malaysia? Kutu funds are an informal funding and saving schemes Traditional kutu funds among friends and family are legal in Malaysia according to the Registrar of Societies Malaysian law aims to make promoting kutu funds illegal, and also if the kutu funds are done for profit It’s basically a monetary funding scheme for savings and quick cash. Some of you may popularly know it as “main kutu”, “duit kutu”, or less popular locally as “tontine”, or “chit fund”. Whatever you call it, you may have seen your friends form such funds in school, or even heard about your parents and their friends getting involved in similar funding schemes. However before writing this article, we found out that that there’s quite a significant number of people who may not know what duit kutu is. So we think it’s best to explain what this “kutu fund” is all about. So for those who don’t know what it’s about, we hope this example will help: Let’s imagine a scenario involving Ali and 4 other fellas: Ali and 4 friends collectively decided to come up with both a better savings plan for themselves, and an easy and fast way to get a big lump of cash fast. So they all pool in RM1,000 each per/month. So for each month they would have collected RM5,000. If one of them needs that RM5,000 immediately for the month, he/she would have to bid for it. So if let’s say Ali really really needs to buy a new TV worth RM4,200, he can tell the group, “I will take the RM5,000 pool of cash, and I am willing to take RM4,200 only”. If no one bids to take the pool money for a lower price, Ali can get the pool money – and the balance RM800 will be distributed equally among the other 4 fellas (so Ali basically paid interest of RM800 for pool money). Now this will go on monthly. Ali and the other 4 fellas would still have to pool in RM1,000 for the subsequent months, until they all have personally contributed RM5,000 into the pool. We would love to TLDR this example for you, unfortunately this scheme is not the easiest to summarise. But nevertheless here’s the first thing you should know about kutu... Traditional kutu funds are legal in Malaysia So apparently there are two types of kutu funds, the traditional type and the business type (which we will discuss later). In the meantime, the kutu funds that your friends and family are involved in is probably the traditional type. Meaning, when they get involved with the fun no one makes a profit. According to the Registrar of Companies (ROC): ""Skim wang kutu tradisional biasanya dianjurkan atas dasar kemasyarakatan dan kepercayaan dalam kalangan jiran tetangga, sahabat handai, saudara-mara atau rakan kerja bagi tujuan mengumpulkan wang mengikut keperluan masing-masing tanpa sebarang keuntungan bagi mana-mana individu,"" Here the ROC actually confirmed that the traditional kutu funds are basically legal because they are done based on community values and trust. But, the moment someone tries to make a profit via these funds... It may be illegal Now this is where we get down to business...kutu business. According to Section 3 of the Kootu Funds (Prohibition) Act 1971(in part): “It shall be unlawful for any person to carry on the business of promoting kootu funds and any person who carries on such business shall be guilty of an offence...” From the reading of this section, the law makes 2 types of kutu activities illegal: Running a kutu business Promoting a kutu fund/business Right now you’re probably thinking that kutu funds are done among friends and families, so how come suddenly the law is talking about kutu businesses.? Well, while in Malaysia kutu is almost always an informal/traditional thing, in other countries like India kutu funds can be a business. In India, there are laws which allow for kutu companies to legally pop up. These businesses basically provide a kutu platform for their participants in return of a fee. So in Malaysia, the law seems to try and prevent such business transactions from happening. And to make sure it really doesn’t happen... The law also makes it illegal to promote kutu funds. But for this part of the section, the wording is quite vague, so it’s quite hard to pinpoint exactly what kinda “promotions” the law wants to prohibit. But we’re sure you’ve come across certain social media posts or messages promoting kutu funds, and in such situations if they’re trying to make a profit, they might be skirting the law. So if you’re doing kutu among friends, its fine... But if you and friends make a profit, the ROC or the PDRM may go after you. The reason behind why the law is quite careful is because sometimes people run away with the money. In essence, the law basically wants to prevent innocent people from losing a big chunk of their hard earned money. So if you know of a business or people who’s doing something that resembles a kutu fund, you can probably let the Registrar of Companies know – so that they can investigate and take the necessary actions. However, if it’s a traditional kutu fund and if there’s probably some cheating going on or someone ran away with the money, it’s therefore prudent to make a police report."
"Do motorcycles in Malaysia need insurance to renew their road tax? While it can be a very convenient way to get through our horrendous traffic jams, motorcycles are not the safest way to travel. Unlike cars with metal frames and airbags to minimize the impact of a crash, motorcycle riders absorb most of the damage during an accident. But accidents aren’t the only risks that Malaysian bikers face. According to reports from the Vehicle Theft Reduction Council, motorcycles were the most stolen vehicles in Malaysia – 6,502 motorcycles compared to 4,472 cars in 2016. So given that motorcycle riding can be an expensive, painful, and sometimes even deadly affair; you’d think that motorcyclist may perhaps benefit more from having insurance than their car-driving counterparts on the road. But here’s the thing – at the launch of their new online insurance and road tax purchasing platform, Loanstreet mentioned that a significant portion of motorcycles aren’t insured….which also means that they have no road tax. Numbers-wise, that roughly equals to 9.5 million uninsured motorbikes in 2018. This could be a problem because... You can go to jail for riding motorcycles without road tax and insurance While speeding on your bike may get you a pretty hefty fine (around 150 – 300 ringgit to be exact), riding your motorcycle without road tax and insurance can actually land you in a jail cell. Loanstreet told us that Section 90 of the Road Transportation Act is the governing section for road tax and insurance, and it says that it’s illegal to ride your motorcycle without those documents. If you’re caught riding without insurance, you may actually be liable to a fine not exceeding RM1000 and/or jail term not exceeding 3 months. In addition that, Loanstreet mentioned that without an active insurance policy JPJ won’t issue you a road tax in the first place. And if you decide to take the risk and ride on without the road tax, be prepared for a fine that can go up to RM3000. So if you’re a motorcyclist millennial who likes avocados, you may have to switch to nasi bujang for a couple of months if you’re caught riding without a road tax. And on top of that, it also means that if you were at fault in an accident, you’d have to pay for the damages out of your own pocket. But the topic of insurance itself can be pretty confusing, because it doesn’t actually refer to a one-size-fits-all product or policy. In fact... There are 3 types of insurance With regards to insurance coverage, you’ve probably heard of terms like “third party insurance”, “fire and theft insurance”, and “comprehensive insurance”. They are basically jargons with bombastic upperclass words. But we’re here to demystify these terms for you, because as a rider it’s important for you to know what these terms mean. We’ll explain each type below, but here’s a table for quick reference: TYPE OF MOTORCYCLE INSURANCE TYPE OF COVERAGE PROVIDED THIRD PARTY INSURANCE DAMAGE TO THE OTHER FELLA DUE TO ACCIDENT THIRD PARTY FIRE AND THEFT INSURANCE 1.DAMAGE TO THE OTHER FELLAS VEHICLE DUE TO ACCIDENT 2.LOSS TO YOUR OWN BIKE CAUSED BY THEFT AND FIRE COMPREHENSIVE 1.DAMAGE TO OTHER FELLA DUE TO ACCIDENT 2.LOSS TO YOUR OWN BIKE CAUSED BY THEFT AND FIRE 3.DAMAGE TO YOUR OWN BIKE DUE TO ACCIDENT So the first type of coverage we’re gonna cover is... 1. Third party insurance In relationship terms, a “third party” is that person you’re hitting it on with that’s not your girlfriend or boyfriend. In terms of motor vehicular insurance, a “third party” is the person you hit with your motorcycle. So third party insurance is the cheapest type of motorcycle insurance with the least coverage. Essentially, it covers claims by those who you’ve hit in an accident ONLY. It does not cover the damages to your own motorcycle. Therefore if let’s say you got into an accident with a car and damaged his bumper and lights and he had to go to a hospital to get his wounds sorted out, you don’t have to burn holes in your pockets to pay him – the insurance company will cover the costs. 2. Third party fire and theft So this one is similar to the basic third party insurance. Meaning it covers the costs of the repairs and medical expenses of the fella you hit. But, this one has a little extra benefits for you. It actually covers losses to your bike due to theft or fire. Thus if your bike gets stolen or gets burnt down, this type of insurance has you covered. 3. Comprehensive Insurance This one is basically motorcycle insurance on steroids. Like “third party insurance”, this one covers the cost of repairs being claimed by the person you hit. Next, like the “third party fire and theft insurance”, this would also cover losses you suffer if your bike gets stolen or burnt down. Now what makes this insurance coverage different is the fact that it covers repairs to your bike! So if you get into an accident with someone and your bike is damaged, you may not need to pay for the repairs. Convinced you need insurance? You can do it right now from your phone! Once upon a time, you’d have to contact an agent or go to a vehicle dealer to renew your road tax and insurance. Fortunately, that may be in the past because, for the first time ever, Loanstreet has developed an online platform where motorcyclists can easily renew their road tax and insurance online. Not just that, you can also customise your insurance with some pretty cool add ons. So let’s say you’re worried about your motorcycle getting damaged from natural disasters or you’re worried your pillion rider would get injured, you have the option to add that type of coverage. All you need to get started is your laptop or smartphone, information on your motorcycle grant and insurance cover note, and some form of online banking or credit card (or MCash), visit this page here, click “GET QUOTE” and then follow their easy steps. If you use the link provided, you’ll also be helping Asklegal out as we’ll be getting a small commission from your transaction (at no additional cost to you, of course). If you’re riding uninsured, this is the easiest way to go legit. Remember, when there’s a wheel, there’s a way….. and you have two of ‘em."
"If a Malaysian court asks you to show up as a witness, can you say no? So you’ve received an official letter from the court, stating that you have been summoned to be a witness in court because your colleague has been fired recently. (Disclaimer: This is just an example. There are various reasons to be called to court as a witness and some of them are covered here.) However, you have just finalised your vacation plans to Bali during the time of the proceedings, and this letter cannot get in the way of your plans – or can it? First off, let’s establish the situation you have at hand. You’ve most likely been served a writ of subpoena. (Pronounced as se-pee-nah.) Okay, take a step back, breathe. Does this mean you have to cancel your vacation plans just because your colleague messed up? Or is it possible to tell the court that you’ve booked a holiday? If you’re wondering now on what exactly is a subpoena and how is it going to affect you...and also if can you choose to ignore it (Like how you would normally ignore all your problems in life?) keep reading on! Let’s take a look at several things beforehand.. What is a subpoena? A subpoena is a type of summon issued by the court, which requires the person named in it to either – Give evidence in court – In this type of subpoena, there can even be two names mentioned in one writ. The people named are to be present at court on the day of the proceeding. Produce relevant documents pertaining to the case – This is different when it comes to documents, where only one name should be stated in the subpoena. The person mentioned does not necessarily have to be present for the proceedings, but the documents should be. Or a combination of these two. Fun fact: You also get paid a certain amount if you go to court! This differs on a case to case basis. Most of the relevant information has been covered in this article, however, if you’re looking for something extra on subpoenas, check out Order 38 Rule 14 of the Rules of Court 2012 where recent amendments have been made to the Rules of Court 2012. Now that we know a subpoena isn’t some kind of an Italian dish, let’s now address the main question… Can you ignore it? (And save your vacation?) Unfortunately, you can’t. If you do not attend court after being served a subpoena, the court has all the right to issue you an arrest warrant. Yes, you can get arrested for not attending court as a witness. However, there are some circumstances where the courts have set it aside, such as when the case can still go on without a witness having to appear in court. An example of a case law is Wong Sin Chong & Anor v Bhagwan Singh & Anor [1993] 2 AMR 3351; [1993] 3 MLJ 679, SC, it was mentioned in the case that although the parties can choose who to produce in court as a witness, the court has the right to refuse it. Most importantly, no useful purpose could be obtained from the attendance of the witness in Court. If this happens, then the subpoena can actually be set aside. So what do you do when you receive one? Firstly, identify the type of subpoena you’ve received – whether you are asked to give evidence, produce documents or both. If you’re asked to produce documents, make full copies of the relevant documents and ensure it is produced on the day of the trial. (Remember, it’s okay if you don’t come, but your documents must.) If your subpoena states the former, and you have to be present to give evidence, ensure that you are there on time and follow the court etiquette for the proceedings to go on smoothly. To wrap things up; firstly, a subpoena is just part of a legal procedure and it is not as scary as it sounds. Also, do take note of the court etiquette and what is needed from your side to help the courts in the proceedings. [READ MORE: IS IT SCARY BEING A WITNESS IN A MALAYSIAN COURT?]"
"If your vehicle gets damaged by a pothole in Malaysia, can you sue the government? [Article originally published on 25 January 2019] If you drive, it has almost certainly happened to you before - either lots of potholes were on the oncoming road, and you had to swerve and squirm to avoid them, or you’re casually cruising and then you get a sudden jerk with a loud “BONK” from hitting a pothole in the road at full cruising speed, followed by mental images of the damage to your suspension. Many Malaysians have gotten so used to the sight of potholes that go unrepaired, we don’t even bat an eye anymore. Most of us haven’t had any serious pothole incidents; sure, the undercarriage and suspensions got bunged up a little, but nothing that’ll total the car has ever happened right..? Well, motorcycle riders have it worse, potholes can make them lose their balance and even veer out of control. Some riders have not been so fortunate, and have lost lives and limbs due to pothole accidents, such as some members of the group Ikatan Sillaturahim Brotherhood, who fix potholes at night because they found the authorities were slow about it. Which brings us to the main question of this article - can you sue the government for vehicle damage and personal injuries if a pothole causes an accident? Potholes are the responsibility of the local government Our public roads are constructed and maintained by the local government, as per the Street, Drainage and Building Act 1974: “The local authority shall, so far as the funds at its disposal will admit, cause all public streets together with the footways thereof, whether covered by arcades or not, to be maintained and repaired…” – emphasis added You’ll want to take note that this is separate from highways which may have their own operating companies, and private roads which are owned by other companies, or even strata titles. You and your lawyer will have to find out where to make your accident claims, but for the purposes of this article, let’s assume that you’re going after the government. Okay, so if it’s the government’s responsibility, they can be liable for negligence if they don’t perform their duty, right? The government has had funding issues for road repairs, but roads aren’t going to repair themselves. Lives could be lost and vehicles could be damaged, so can you sue the government for neglecting this responsibility? [READ MORE - The law of negligence was created by...a Scottish snail] Yes, you can! You’ll find this right to sue the government in Section 5 of the Government Proceedings Act 1956: “Subject to this Act, the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent……” - emphasis added That bit of legalese basically means that the government is liable for what its officers do in in the same way that an actual person would have to take responsibility for their actions. But hold your horses, just because you have a right to sue the government, doesn’t mean that you can sue for just anything - you still have to fulfill the criteria for that particular legal action you want to file. For example, negligence is a type of tort case, which requires you to show proof of the losses that you want to claim from the other party (in this case, that’s the government). [READ MORE - What's a tort? Can eat one ah?] But the government has a get-out-of-trouble card The other bummer you’re about to hear is that the government has a law that works like an exclusion clause built into the Government Proceedings Act - in Section 7. “.....no proceedings, other than proceedings for breach of contract, shall lie against the Government on account of anything done or omitted to be done or refused to be done by the Government or any public officer in exercise of the public duties of the Government.” An exclusion clause is basically a line that excludes certain responsibilities by someone, which is usually used in contracts. In this case, the government is saying that unless they breached a contract, you can’t sue them for anything done within their public duties, whether it was something they did, didn’t do, or refused to do. [READ MORE - Here's how exclusion clauses work in Malaysia] But that’s not the whole story, Section 7(3) says that the government still has to take responsibility where they are negligent or have trespassed upon someone’s property: “Nothing in this section shall prevent the bringing of any suit for damages or compensation arising out of negligence or trespass in the execution of any works of construction or maintenance undertaken by the Government in the exercise of the said public duties.” - emphasis added In fact, in 2015, someone successfully sued the Penang government for a pothole accident after appealing the decision twice. Here’s what happened. It started with a 1.4m and 1.6m pothole… Back in 2009, one Raymond Cheah Soon Sing was riding his motorcycle to work on Jalan Perusahaan, Bukit Minyak, in Penang. He’d suddenly gone over two gigantic potholes one after another, measuring 1.4m and 1.6m in diameter. The sudden lurches threw him off his bike, injuring him and badly damaging his property. He filed a lawsuit against the government almost 3 years later, only about a month away before the time limit to sue. [READ MORE - Is there a time limit for you to sue someone in Malaysia?] To cut a long story short, Raymond Cheah lost his case in the Magistrate Court and High Court, before finally winning it at the Court of Appeal. Here are the key reasons why the judges decided to award him compensation: The road’s maintenance is in fact the Penang government’s responsibility The huge potholes had caused another accident previously The government did not place warning cones or signs to warn road users of the potholes The witness for the Jabatan Kerja Raya (JKR - Public Works Department) said that the JKR inspected roads twice a month and would have noticed the potholes Related to (4), the government knew about the potholes a long time before the accidents ever happened The JKR’s witness also agreed that in not repairing the road, the government was negligent In fact, the judge delivering the judgment for the case, Vernon Ong, pointed out that the government knew that the road was a busy one where a lot of heavy vehicles passed. Therefore, they had no excuse for not repairing the potholes. “Of particular significance is the defendants’ stated position that the public road in question is a busy thoroughfare used by heavy vehicles including lorries, buses and prime movers. Given the defendants’ stand, it is incumbent upon the defendants to conduct regular inspections and effect timeous and prompt repair to the pot holes to reduce the risk of danger to road users.” Read Raymond Cheah’s full case report here. Report potholes to your local council, and make sure they repair them! It’s the responsibility of the local government to take care of the roads and make sure there are no potholes to endanger road users. Your local council may have its own initiative to make sure potholes are repaired. For example, the Selangor government uses Waze to keep track of pothole reports, and gets them fixed within 5 days. If in case you’ve been especially unlucky, the Ikatan Silaturahim Brotherhood we mentioned above has a legal aid program to help victims of pothole accidents get compensation from the government as well."
"Is this blindfolded statue in front of the courts doing the ""Bird Box Challenge""? You’ve probably seen a similar statue or image on TV if you’re a fan of courtroom dramas like ‘Law & Order’. And if you’ve been avidly following social media trends, you’d find that the ‘Bird Box Challenge’ from Netflix’s latest horror movie ‘Birdbox’ is all the buzz right now. So if you’re not already familiar with it, the ‘Bird Box Challenge’ involves performing specific or daily activities whilst blindfolded. Is it a mere coincidence then that a statue of a blindfolded lady often depicted with a sword in one hand and a balance/scale (or ‘dacing’ as we Malaysians call it) on the other, graces many court complexes around the world? Was she doing the ‘Bird Box Challenge’ before it was mainstream? Or could all this common symbolism point to a more sinister hidden plot at hand, as conspiracy theorists would like us to believe, demonstrating perhaps the Illuminati or other secret organisations global monopoly over the court system? Let’s not get carried away, we explore her identity below. Who is she? The Origin Story. She was a Goddess. It’s starting to sound like a superhero movie isn’t it? Well the great ancient civilizations of the Egyptians, the Greeks and the Romans each had a goddess devoted to the concept of justice for all. The Egyptians worshiped the Goddess Maat, whose many roles included serving as the final judge in the afterlife. The Greeks named their goddess of fairness “Themis” (one of Zeus wives) who presided justice over the Gods, while her daughter, Dike, had power over human justice. The Romans treated their goddess, Justitia (or Iustitia in Latin) as a symbolic personification of justice rather than a deity. Through the ages, these goddesses evolved into a towering figure seen in our courts and legal institutions representing justice in all its glory. She’s known to us today commonly as ‘Lady Justice’. She represents 3 major elements of justice If Thor were to be the God of Hammers (pun intended), would ‘Lady Justice’ be the Goddess of Scales? Not quite. Let’s take a look at some of her distinctive features and what they mean. BLINDFOLD - Somewhere around the 16th - 17th Century, ‘Lady Justice’ began appearing in a blindfold. The blindfold represents impartiality, and shows us that justice will be applied regardless of our money, power, race, religion or any other social class. Whilst the blindfold is a common feature on statues across the world, it isn’t necessarily present on every Lady Justice statue. SWORD - Back in the day, a sword demonstrated authority and meant justice is immediate and final. It’s also said that the ‘double-edged sword’ represents not only the enforcement of the law but the defense of innocent parties as well. SCALES - The scales (‘dacing’) seems to have evolved into a universal symbol of fairness,and as we mentioned above, dates back all the way to ancient Egypt. From a legal perspective, Lady Justice’s scales symbolize the weighing of evidence between parties during the judicial process. Where is she in Malaysia? For some reason, we’ve been hard-pressed to find a statue or image of Lady Justice here in Malaysia. However, the elements of justice that she features are universal and can be seen all around us. As we Malaysians all know, the ‘dacing’ that Lady Justice features is also the logo of a prominent local political party. If you know the reason why ‘Lady Justice’ can hardly be seen in Malaysia, reach out to us and we’ll add it into the article."
"Why are Malaysians getting charged both airport tax and departure tax in 2019? If you remember Budget 2019, you know that there were a lot of benefits and tax changes in there. One of the things announced for this year included a new type of tax - departure tax which is to be paid at airports before embarking on a flight. While we all know that the government needs money to fund itself and run projects, some of us remember that we already have an airport tax which we pay for when buying flight tickets. So you might be thinking… Isn’t it a bit much for the government to tax the same thing twice?! Actually... Airport “tax” is not collected by the government The airport tax we normally hear about is actually not a “tax” at all, and is called a Passenger Service Charge (PSC) that is paid to Malaysia Airports Holdings Bhd (MAHB) to keep our airports running. They’re mandated by the law to collect certain fees for things like landing charges, airport vehicle charges, and of course - the Passenger Service Charge. It’s covered in a piece of regulation called the Malaysian Aviation Commission (Aviation Services Charges) Regulations 2016, which is a “sub-law” under the Malaysian Aviation Commission Act 2015 (MAVCOM Act). MAVCOM (the government body in charge) announced a small change in the charges on their website in November 2017, which is accurate at the time of writing, but future changes are announced through the Federal Gazette. In essence, the PSC is broken into two parts: the passenger service charge itself, and; a smaller security charge. These charges are different for domestic flights, flights within the ASEAN region, as well as international flights outside of ASEAN. But, they are standard across all airports in Malaysia as well, which Tan Sri Tony Fernandes has taken dispute to... AirAsia refuses to collect the full PSC charge for MAHB You may already recognise the term “Passenger Service Charge” from the news because of a longstanding feud between AirAsia and MAHB about how much PSC should be collected. AirAsia’s position is that klia2 has vastly different facilities from KLIA, and so their PSCs should be different as well. They’ve been refusing to collect the full PSC charge of RM73 on international flights at klia2, and instead collect the original RM50 which they consider fair to customers. Technically speaking, AirAsia is not doing anything outright “illegal” to collect a smaller sum because according to the Malaysian Aviation Commision (Aviation Services Charges) Regulations 2016, it’s MAHB’s responsibility to collect the fare. But AirAsia could face penalties under the MAVCOM Act as what they are doing can be seen as anti-competition. MAHB is now suing AirAsia for the full PSC payment, which we’ll have to wait and see how that goes. That being covered, what about the new “departure tax” announced in Budget 2019? Departure tax is paid to the government Transport Minister Anthony Loke has explained that the upcoming departure tax is separate from the PSC. The main reasons for the tax are stated as to encourage domestic travel, and raise money for the government. The departure tax will apply to all travellers leaving Malaysia, standing at a proposed RM20 to ASEAN countries, and RM40 to non-ASEAN countries. It has not yet been implemented, and will only take effect from 1 June 2019 But wait, part of what MAHB earns from the PSC also goes to the government While we can think of the PSC as a service charge imposed by the airport management, as with most things in life, it’s not as straightforward. According to this news report, the acting CEO of MAHB, Raja Azmi Raja Nazuddin, had stated that about 11.8% of MAHB’s earnings are paid to the government as part of its user fee. So the PSC actually benefits the government as well, albeit it’s through taking a percentage from MAHB. As for the longstanding dispute between AirAsia and MAHB, we’ll have to see how the lawsuit turns out, and whether the government will decide to to resolve the issue through intervention, by amending the Aviation Service Charges."
"Can the PDRM stop and search your car without setting up a roadblock? Note: This article was originally posted in 2019. We recently came across a Facebook post where someone described an interesting encounter she had the police. Here’s what happened: While we love our men in uniform, it can be a pretty scary and cumbersome thing to go through. And if you’re the kinda person who tends to say “What about my rights?!” a lot, you probably got a little riled up while reading that story. But, situations like this begs a few important questions. “What are the powers of the police?”, “What are my rights in such situations?”, and most importantly “Can the police legally search my car like that”. We’re here to tell you… The PDRM can search your car like that When enforcement authorities want to do something (like stop and search someone, or enter into a private residence), they can only do so if the law permits. If there’s no law allowing it, they’d be acting beyond their powers – basically acting illegally. So with regards to police searching vehicles, there’s actually a law on the matter. Following Section 24(1)(b) of the Police Act 1984: “Any police officer may— …stop and search without warrant any vehicle or vessel which he has reasonable grounds for suspecting is being used in the commission of any offence against any law in force…” Therefore it’s quite safe to say that the police can legally search your car, but they must have reasons to suspect that your car was involved in a crime. So for example if the PDRM received info that a red Myvi was the get away car in a robbery and you drive a red Myvi, they may have legit grounds to search your car. This basically means that, it’s best to politely ask the officers why they’re searching your car. Also at the same time while you ask them that question, they’re probably gonna ask you some questions too. According to the RED BOOK (a book containing basic rights of citizens when dealing with the PDRM), in a normal situation the PDRM can only ask you for your “name and address”. You’re not obliged to answer any other question. However if you’re car is being searched because they’re investigating a crime, they may want to ask you questions and take down your statements. In such situations, Section 112 of the Criminal Procedure Code says that you must answer all the questions the PDRM asks you – unless your answer may expose you to a criminal offence (if you wanna find out more about what this means, click our link below). [READ MORE: Can the Malaysian Police legally search your car at a roadblock?] But if you still feel you’ve been wronged Enforcement authorities are humans too, so it’s possible they can mistakes when trying to enforce the law. The problem is, sometimes this can cause citizens to have their rights violated. So what you can do is stand near your car and watch how the officers conduct the search. More likely than not, the officers itself would ask you stand nearby. But of course the situation is different if they arrest you. So if you ever feel like you have been wronged by the PDRM, you may not have to worry so much because they have an online platform for complaints. All you have to do is file in your complaint here."
"5 common questions Malaysians will ask about divorce law  Marriage is a precious experience in our life and we would expect it to last forever. Like lots of couples, you and your partner enter into marriage, with the hopes of starting a new happy family. Few years later you have children and you start to invest in your properties. But what if one day you wake up and realize that your marriage is not working out anymore? Government statistics show that 49,965 divorces were reported in Malaysia in 2017, which means at least five marriages break down every hour. You now thinking of getting a divorce, but because many parts of your life are now shared with your spouse, things can get pretty complicated especially coming to family assets, maintenance, and custody. So, how does the divorce law in Malaysia work? Below are some common questions that you may ask, but before that, please note that the information provided in this article applies to civil marriages and it does not apply to Islamic marriages. Click here for our article on divorce in Islamic marriages. 1. “How do I even start a divorce process?” Civil (Non-Islamic) marriages in Malaysia is governed by the Law Reform (Marriage and Divorce) Act 1976 (“LRA”). Divorce can be ‘petitioned’ to a family court by either one partner, or both partners in a marriage. In general, you can only file a divorce petition after 2 years of marriage (Section 50, LRA). The reason of this requirement is to protect sanctity of marriage and to encourage reconciliation between married couple. However, the law allows the courts to consider divorce petitions before the two-year limit if one partner is suffering from “exceptional circumstances or hardship”. For example, verbally quarrels between couples may be seen as a common thing (since all couples argue), but it would fall under exceptional hardship if the quarrels frequently involve one partner physically beating up the other. There are two types of divorce petitions: Joint petition- Where both of you want to divorce and agree on the terms of separation Single divorce petition- Where you want to divorce and your partner doesn’t, or vice versa Joint petitions are relatively straightforward because you do not have to prove that the marriage has broken down. The court will allow the divorce as long as both parties agree to divorce and arrangements have been made for maintenance and custody. However, single divorce petitions can get a little more complicated because you must show that the marriage has “irretrievably broken down” based on one of four grounds: Adultery Unreasonable behaviour Desertion Separation Not just that, you and your partner will be required to attend marriage counselling in order to determine if divorce is the only solution. If this is the case, you will be given a certificate that allows you to file the divorce petition. You can read more about this in Section 106 of the LRA. [READ MORE- To get a divorce in Malaysia, you need to prove at least 1 of 4 things...] Even the court allows your divorce, the divorce is not final yet.. the court will first grant you a temporary declaration of divorce called “Decree Nisi” which allows you to cancel the divorce before it is final. After 3 months, you can make an application to make the decree absolute, after which you can be considered as “permanently divorced”. 2. “How do we divide the property?” This aspect of divorce can be pretty technical, so we have an article explaining it in further detail here. Under Section 76 of the LRA, when deciding how the property should be divided, the court will consider the following factors: How much work or money you contributed towards the acquiring of the property; Contribution you made to the welfare of the family by looking after the home or caring the family; Any debts owing by either party which were for the family’s benefit; The needs of any minor children (age below 18) But what if the property was bought with your own money or before the marriage? Then it wouldn’t be fair to share that, would it? Great question. When granting a decree of divorce, the court has the power to order the division of 3 kinds of assets: Matrimonial Property (Assets acquired during the marriage by joint efforts) – Example: The family home bought jointly by both partners Non-matrimonial Property (Assets acquired during the marriage by sole effort of a party) – Example: Stocks or shares in a company which you purchased by your own money Assets owed by one party before the marriage and it was largely improved during the marriage – Example: A house that you bought before marriage which was renovated after marriage and its value increases There is actually no set rules or formula as to how the court will divide the assets. The court will try to reach a fair and just decision in each case after considering all the factors. However, there are some things you can expect: If it is matrimonial property, the court is likely to lean towards an equal split. But if it is non-matrimonial property, the court may give a much smaller share to your ex-partner, or nothing at all. Again, more information can be found in our standalone article here: [READ MORE: , If I divorce in Malaysia, do I automatically get half the property?] 3. “Can I get alimony from my ex?” Section 77 of the LRA provides that the court may order a man to pay maintenance to his ex-wife during court proceedings and after the divorce. However, a woman may also be ordered to pay maintenance to her ex-husband ONLY if he is incapable of earning a livelihood by reason of mental/ physical injury or ill health. In determining the amount of maintenance, the court will consider primarily the earning capacity and financial needs of you and your ex-partner. The court will look at the duration of marriage, age of wife, standard of living of the family, and financial support provided to the wife during the marriage. For instance, if the wife was a home-maker during the marriage and would have difficulty seeking employment upon divorce, the court will generally make an order of maintenance in favour of the wife. When a wife is employed and has reasonable income, this does not mean that she is not entitled to any maintenance from her ex-husband. The court may grant a reduced amount of maintenance based on her other needs. When deciding how much maintenance to award, the court will also look at how much you contributed towards the breakdown of your marriage. So, you may get a lower amount of maintenance if you had substantially caused the breakdown of your marriage. However, this does not mean that you will get maintenance which is more than necessary if you are an ‘innocent party’. The purpose of maintenance is not to enrich you but to allow you to carry on with your normal life. The right to maintenance stops if the spouse is living in adultery or if he/ she remarries (section 82, LRA). The court has wide power to change the maintenance order from time to time upon proof of change of circumstances. 4. “Will I get to keep my children?” In deciding with whom the child will live with, the court will consider the wishes of the parents and the wishes of the child (if he/ she is able to express an independent opinion). However, the utmost important principle is the well-being of the child, not the parents. This is covered under section 88 of the LRA. There are also some principles that the court will adopt when deciding child custody: The law presumes that it is better for a child below the age of 7 years to be with his or her mother. Having said so, a father can still get the custody of a young child if he can show that the mother is an unsuitable parent and it will damage the child’s welfare if he’s living with the mother. The court is reluctant to disrupt the life of a child by a change of custody. For example, if a mother has been taking good care of the child before and after separation, it is unlikely for the court to change the custody as this may cause unnecessary disturbance to the child. The conduct of the parties is relevant only when the welfare of the child is affected. Generally, an extra marital affair does not automatically disqualify a parent from having custody, but a parent who for no good reason abandons the family may fail to get custody. When making an order for custody, the court may provide the other parent the rights to visit the child. Frequently made orders in relation to access/ visitation are: Alternate weekends One half of school holidays Alternate public holidays Important festivals or celebrations (eg. Chinese New Year eve, Father’s Day, child’s birthday) 5. “Will I need to pay child maintenance?” Under section 93 of the LRA, The court has the power to ask both father and mother to pay or contribute to the maintenance of the children, although the primary obligation to maintain a child belongs to the father. The mother has a secondary obligation, as the court may only ask her to contribute maintenance if she has enough financial means. The duty of parents is to provide the children with basic necessities such as accommodation, clothing, food and education. Based on decided cases, the actual monetary amount is assessed based on: The financial means of the parents; The needs of the child; and The lifestyle of the parties during the marriage Generally, the order for maintenance ends when the child reaches the age of 18 (section 95, LRA). However, a court may order the father to pay for the child’s tertiary education. In a recent case of Shantini Pillay a/p Narayanasamy Pillay v Kanna Dasan a/l Narianasamy [2018] MLJU 1199, the court ordered the father to pay for his child’s tertiary education but this does not extent to the funding of postgraduate studies. Finally, remember to consult a family lawyer Divorce proceedings can be very stressful and it is always best to consult a lawyer. No two marriages are the same and each case has to be decided on its own facts. With lawyer’s advice, you will have a better understanding of your position and what options you have in resolving your issues. For example, you may wish to reach a settlement with your spouse rather than battling the issues in an open court, which is likely to be more lengthy and expensive. Depending on your case, you may also want to consider getting a judicial separation instead of a divorce. Judicial separation basically means that you and partner are legally separated, but the marriage is still subsisting. If you are not sure if judicial separation will be a better option for your case, please contact a family lawyer for further information."
"Malaysia now has regulations for digital assets. Here’s how they work. Malaysians got a sudden announcement on 14 January from the Ministry of Finance that a new law would come into effect the very next day, regulating digital currencies and tokens (digital assets), as well as their exchange platforms and other related activities. It’s the new Capital Markets and Services (Prescription of Securities) (Digital Currency and Digital Token) Order 2019, a copy of which you can find published on the Federal Gazette (linked above) in both BM and English. This kind of short notice doesn’t happen often, and many laws actually have a grace period to help people adapt. Some probable reasons are that there are concerns behind terrorist funding, and more relevantly, there are a lot of scams around digital currencies and tokens which often get presented as an Initial Coin Offering (ICO) linked to a reputable organisation or company. This new law doesn’t overwrite Bank Negara’s policy on digital currencies and tokens If you’ve been following news in this field for a while, you might be aware that Bank Negara previously issued a policy on digital currencies. It stated that digital currencies like Bitcoin are not recognized as money, and digital currency exchanges (people operating platform where digital currency transactions happen) would have certain reporting obligations to Bank Negara. [READ MORE - Are digital currencies considered money in Malaysia?] This previous policy still takes effect, but the main difference is that while digital currencies and tokens are still not recognized as money or legal tender, a big portion of them now fall under “securities” in Malaysia, much like a company’s shares, debentures, units in a mutual fund, etc. Basically these would be financial instruments used to represent something of value that people can own. There are some criteria for whether a digital currency or token falls under the new law If a digital currency falls within these criteria, it will be considered a security: It’s traded in a place or facility where offers to buy, sell, or exchange are made regularly An owner of the digital currency expects a return on its value It’s not issued or guaranteed by any government body or central bank (like Bank Negara) A digital token is a bit more complicated because it’s commonly used as an alternative to company shares, which bypasses a lot of requirements, like having a prospectus for investors. The new law also declares digital tokens to be securities if they fulfill the following: An owner received the digital token in exchange for something of value The contributions from each owner of the digital token, and the income on them, are pooled The income on the digital token is generated from a business The owner expects a return on the value of the digital token The owner doesn’t have day-to-day control over the management of the business involved The digital token is not issued or guaranteed by any government body or central bank All issuers and platforms for digital currencies and tokens must follow securities regulations So, digital currencies and tokens will be regulated as securities from now on, but what exactly are those regulations…? For one, issuers of digital currencies and tokens will need to get a Capital Markets Services License under Section 58 of the Capital Markets and Services Act 2007 (CMSA) in order to carry out “regulated activities”. The penalty for not doing so is a fine of up to RM10 million and/or up to 10 years in prison. There’s a complete list of regulated activities under Schedule 2 of the CMSA along with details of what exactly each one covers; briefly, they are: Dealing in securities (which now includes digital currencies and tokens) Dealing in derivatives (types of financial instruments) Fund management Advising on corporate finance Investment advice Financial planning Dealing in private retirement schemes There is still no framework for how the new regulations will work On the other hand, it’s not clear exactly how the new regulation will be implemented and enforced, partly because the definition of a “security” normally refers to government-issued or company-issued shares and bonds - digital assets are not mentioned here. Operators of stock exchanges like Bursa Malaysia normally need to get approval from the Minister of Finance in order to operate. But digital currency and token exchanges are not “stock exchanges”, so they’re technically not covered by our Capital Markets law so far. There is no framework in place yet to properly enforce and implement these regulations, so again, we have to wait and see what laws will get changed and what systems are put in place. The Ministry of Finance has stated that they see potential in digital assets and their underlying technologies. But for something so prone to abuse for personal gain and criminal activity, it needs to be regulated a lot more to be viable as a integral part of everyday transactions. A new announcement from the Securities Commission of Malaysia has barred digital asset exchanges from taking on new investors, and are only allowed to withdraw or transfer existing client money – at least until 1st March when they require licenses to operate and new regulations are in place. All ICOs in Malaysia are also suspended, and all investor money must be returned."
"Here's how we can improve regulations for Sexual Harassment Whistleblowers THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect ASKLEGAL's position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article. by Hwa Yang Jerng | Linkedin In Malaysia, talk of a Sexual Harassment Act (of law) has been bandied around by various bodies, hitting the press over 2017 and 2018. As of November 2018, this has not yet been tabled in Parliament *sic*. However, we already have Act 711, the Whistleblower Protection Act, which points complaint about improper conduct in general to ""enforcement agencies,"" under a so-called ""no wrong door,"" policy. These are relevant, and they can be improved. Problem statement The problem I would like to raise about a ""no wrong door,"" policy is that there remains a general sense among powerless citizens that the enforcement agencies are ""all wrong doors."" This remains especially true of sexual harassment. This is evident when complaints about bad behaviours of citizens and corporations are sent to the unregulated networks of social media, where they take on great momentum, resulting in extra-judicial chaos, and mass-media organisations which have graciously take on the responsibility of coordinating a response from enforcement agencies. In the interest of emboldening the public to increase its volume of complaints, while ensuring that complaints are processes in an orderly fashion, I briefly propose an improvement to the whistleblowing protocol for improper conduct in general, to be cooperatively regulated by the federal government, and civil society. Act 711 can be extended to include three things. Solution statement First, a formal and independent Commission of Complaints, with a commissioner of complaints, should be created, with minimal cost and staffing, to administer the two items below. Second, a protocol. It seems like a double-blind architecture would work best, the sort of thing commonly used to reduce prejudice in scientific data collection, via anonymity. Types of parties: Improper People, Complainers, Collecting Agencies, Reporting Agencies, Enforcement Agencies Improper People are those accused of improper conduct. Complainers are whistleblowers, the people making the complaints. Collecting Agencies would be responsible for taking named, and anonymous complaints, and collecting them in a regular format, while hiding the identity of Complainers, keeping Complainers updated on the status of their complaints, and advocating for complaints to be dealt further along the chain. Lawyers' offices are suited for this role. Reporting Agencies would be responsible for consolidating anonymised complaints from Collecting Agencies, and coordinating a response from Enforcement Agencies. Lawyers' offices are also suited for this role. Enforcement Agencies, as already assumed by Act 711, are the specialised agencies which handle law enforcement of various subsets of the law. Third, a blockchain. Technology has recently graced us with this marvel designed to keep track of things so that they are never lost, easy to find, and always checkable, by anyone, at any time. All complaints should be consolidated on a blockchain upon arrival at the Commission of Complaints, and the maintenance of the blockchain should be assigned to the Commission. Public access to certain types of information on the blockchain should be updated in real-time: the identities of all Collecting Agencies and Reporting Agencies, the number of complaints and the type of complaints that have arrived at Collecting Agencies, and the current ticket status of each complaint as it is passed through the protocol, for example. [All of this mirrors how court cases are tracked on a court docket, but here we are talking about complaints which have not yet become court cases.] That's all. I want to keep this brief. Thanks for reading. Hwa Yang Jerng (Jerng to friends) is a software developer, armchair analyst, programmer, and cafe entrepreneur. He’s a fan of integrating tech with governance (or at least, sharing these ideas for the purposes of further discussion). You can read his other thoughts here."
"Regret buying something? Here are 5 ways Malaysian law allows you to ‘undo’ it Have you ever been so enticed by a discount, an enthusiastic salesperson, or a deal so good that it was impossible to pass up? How many times did you regret the purchase afterwards? That’s what you’d call experiencing a case of “buyer’s remorse” - which, if you’re unfamiliar with the term, refers to the regret of spending your money on something, especially if it was a big sum or if you didn’t really need it. While you’ll have to accept the fact and move on if you were sold the item by legit means, you can actually invalidate the purchase if one of the following situations applies to you. They involve contract law and cover situations where either the contract is automatically invalid, or you’ll have the option to “avoid” the contract’s obligations because you were not negotiating in a fair position. 1. You were lied to about the product or service In this case, you find out you’d been deceived by the seller. That power bank you bought contains lots of powder, not power! If you bought an item because you were tricked by the seller, the contract for your purchase is “voidable” by you - you now have the right to invalidate it by getting an exchange or a refund. The legal term here is “fraud”, which is a word most people will be familiar with, but it carries specific meanings in law under Section 17 of our Contracts Act 1950: Saying that something untrue is a fact, but knowing it’s not true Actively concealing a fact from the other person (like hiding the fact that a device is actually broken); Making a promise with no intention of keeping it; Any act to deceive a person, and Any act or omission that the law specially declares as fraudulent Since we’re talking about real life here and not just legal theories, having the right to void a contract doesn’t mean that you’ll always be able to follow through on it. A reputable store has much more to lose if their staff lies to you about a product, and they are also more answerable to a police report, unlike fraudsters who can run away without a trace. The lesson here is to be careful about “wandering merchants” who peddle cheap stuff at the roadside but may not be around to entertain our complaints when we come back to return their fake or defective merchandise. The same goes for sellers on second hand goods websites and unestablished online vendors, whom you don’t know if you can trust or track down. 2. The seller gave you some wrong information by mistake The second scenario still involves getting the wrong message from the seller, but he’s genuinely mistaken. An example would be when the shopkeeper thinks that a laptop comes with a HDMI port, when it actually doesn’t. This is called “misrepresentation” and its legal definition includes: Saying that something is true, although it is not. But you believe it is true, although you don’t really have proof of that. An honest breach of duty which misleads the other party, that gives an advantage to yourself in negotiations (like mistakenly interpreting the fine print for a customer) Causing the buyer to make a mistake about the item they’re going to buy (covers a lot of general scenarios like saying “this hair dryer has a cold setting” when it actually doesn’t) Like with situations of fraud above, you also have the right to avoid the contract if you bought something under a misrepresentation. Misrepresentations may also include some “sales tactics” covered by our Consumer Protection Act 1999, which sellers are not allowed to use. [READ MORE - 5 common sales tactics used in Malaysia that are actually illegal] 3. Both you and the seller didn’t know that the item was no longer available Simply put, this refers to those moments of bad luck when an item was actually no longer available to sell, but not even the owner knew about it yet. An example situation is where you agree to buy a horse from your friend, but it turns out that the horse dropped dead when you both signed the contract, although both of you didn’t know of the fact. Under Section 21 of the Contracts Act, in these cases, the law considers the purchase “void” - which means it’s unenforceable by law. The law calls this a “mistake”, but don’t be fooled by the word - it actually only refers to mistakes of fact, not opinion. If that confused you, basically the “mistake” you made must have one correct answer only (it’s an objective matter). If there are two possible correct answers, or if it depends on your perspective (it’s subjective), then it doesn’t qualify as a “mistake” So if I promised to sell you some sacks of rice in my warehouse, but they were actually barley, then it would be considered a “mistake” by law. But if I bought a car from you, and thought it was worth a lot more than it really is (an opinion), then this will not be considered a “mistake”. 4. It became impossible or illegal for the seller to uphold his deal with you What happens if you bought tickets to a concert but the venue burns down before the actual day? Your contract to buy those tickets gets “frustrated” (just like you). Contracts become frustrated when the obligations under it become either impossible or illegal to fulfill later on through some unexpected circumstance that couldn’t be avoided. For example, if that same concert venue was burned down by one of the performers to avoid the show, then the contract does not become frustrated. [READ MORE - If a freak accident makes you break a contract, can you get sued under M'sian law?] A frustrated contract follows the rule in Section 57(2) of our Contracts Act and becomes “void”, just like with a “mistake”: “A contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.” 5. The seller is your superior, and they took advantage of you So imagine your boss calls you in to talk about that promotion you’ve asked for. Midway through, he mentions that his wife has started selling healthcare products and “it would be nice of you to show your support” by paying for a facial package that you don’t want or need. No one likes being pressured or tricked into buying something. Even more so when that person is someone you’re supposed to be able to trust. Malaysian law also provides another scenario where you can get out of a contract - undue influence. This makes the contract “voidable”, as mentioned before: cancellable at your choice. Undue influence is a situation where the seller is in a position to dominate your will, and they used that position to obtain an unfair advantage over you. Think of your elders, advisors, and bosses here who could threaten you or be...very persuasive. A contract can be set aside particularly for cases where the seller: Holds real or apparent authority over you, Has a fiduciary relationship with you (relationships where you have to act in utmost good faith for the other person’s benefit like employer-employee, agent-principal, the trustee of a will, etc.) Made a deal with you when your mental capacity was affected temporarily or permanently by age, disease, or stress In essence, this part of law exists to give an escape route to people who might get taken advantage of by others who have authority over them. In short: Don’t buy stuff in the heat of the moment Bargains are really attractive, especially when it’s exactly what you’ve been looking for. However, some of us are also so enticed by the idea of a good deal that in the moment, we don’t think things through and end up making a purchase we regret later on. As much as we have the legal right to reverse some of these transactions in the manners listed above, it still can be a lot of trouble to get it settled. Best to prevent what you can, and only solve what you can’t. You might be wondering though, with all the “no exchange” and “no refund” policies going around, can you even void the contract and go get an exchange or refund? (Is this article even useful at all?) What’ll probably surprise you is that a lot of these policies are outright illegal… [READ MORE - 5 ways you can (possibly) get around a no refund policy in Malaysia"
"90% of Malaysians don't sign this important contract before they get married. Alright, just to be completely clear, this article is about prenuptial agreements which are not required for marriage, and the 90% mentioned in the title may not be entirely accurate, but based on the sources we found here and here, the numbers may not be too far from there. Although this article is mainly about civil marriages and not Islamic marriages, it has been stated by the Malaysian Bar Council that Muslims can also sign prenups now! So, to our fellow readers who want a deeper insight on divorce in Islamic marriages, click here. Or..you can just continue reading to find out more about what exactly a prenup is in this article! [READ MORE: Things to know when signing a contract] For starters lets take a look at… What is a prenuptial agreement? A prenuptial agreement is actually a contract entered into prior to marriage. It defines the terms which help determine how much money and assets that are to be divided in the event of a divorce. Several things can be laid down in a prenup:- The division of any property and assets. Alimony payments for child maintenance. Guardianship of children. (if any) Prenuptial agreements are more prominent in cases of second marriages and so on, particularly as to whether they can protect the interests of the parties and any children that are involved from the marriages. Are prenuptial agreements valid in Malaysia? It actually is! Or more accurately the law doesn’t specifically say if it is illegal either. Under Section 56 of the Law Reform (Marriage & Divorce) Act 1976 (hereafter the 1976 Act), parties may refer to agreements with regards to matrimonial proceedings to the High Court of Malaya. However, the validity of the prenup is still subject to the court’s discretion. So long as it does not contradict to any section in the 1976 Act, the courts will consider the prenup and uphold the agreement based several factors, such as the conduct of the parties and the absence of duress or fraud. Here is an excerpt of Section 56 of the Act (in part): “ Provisions may be made by rules of court for enabling the parties to a marriage, or either of them, on application made either before or after the presentation of a petition for divorce, to refer to the court any agreement or arrangement made or proposed to be made between them… if any, in the matter as it thinks fit.” So, if you have already tied the knot with the love of your life and you think reading on is an unnecessary waste of time, hold up! Because there is still a chance to prep yourself! As the Malay saying goes, “Sediakan payung sebelum hujan.” – In the form of a POST-nuptial agreement. Wait, there’s a POST-nuptial agreement? Post-nuptial agreements are also known as agreements made after marriage. These type of agreements are more commonly seen in Malaysian courts. They sometimes comprise of Deeds of Separation and Maintenance Agreements made after getting into a marriage. There are perks to post-nuptial agreements as well. Some of it are: To define the property/assets. – Whether they are held jointly or individually. To establish and divide debt settlements – Who takes responsibility in settling debts incurred. To establish maintenance of ex-spouses/children – How much is allocated for spouses and custody of the children can is laid down. Upon death – How much is allocated to parties and an update of any will or future estate plannings. Of course, at the end of the day, the courts still have full power to decide if they want to take the agreements into consideration, as stated under Section 76 of the 1976 Act: (1) The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or the sale of any such assets and the division between the parties of the proceeds of sale. As much as the topic of divorce is rather dark and bleak...and rather unromantic, but one should not just look at prenuptial/post-nuptial agreements as something that is made to anticipate a divorce. There are so many good reasons to consider making prenuptial agreements with your significant other; such as to minimize any risk of unexpected financial claims, or to circumnavigate any mishaps such as death, on how to distribute or manage assets if it happens. Unless you have read all our articles on writing contracts, it’s best you consult a family lawyer for a prenup. You might want to avoid any backfire from a badly worded or invalid contract, so it’s always best to get professional help!"
"In Malaysia you can get out of a contract if both sides made a mistake People inevitably make mistakes every day. After all, nobody’s perfect, right? But when it comes to contracts, ‘mistakes’ are a whole different ball game. Just to be clear, not reading or understanding a contract before you signed it is a mistake on your part, but NOT in the eyes of the law – you’ll still be bound by the contract and will have to follow through with whatever horrible terms you agreed to. You can read this for further information. The ‘mistake’ we’re talking about is a genuine error in regards to the item or subject in the contract. Here’s an example – Someone puts an iPhone 5s up for sale, and you signed a contract to pay for the phone by instalment even though you don’t actually know what an iPhone 5s looks like. But as you’re showing off your brand new iPhone 5s to your friends, one of them points out that it’s actually an iPhone 5. You immediately scream “SCAM!” but as it turns out, the seller is an old uncle who also can’t tell the difference. So does that mean you can cancel the contract? Well, there’s a pretty high chance that you can, since it’s a... Mistake made by both parties While you might think that something as important as a contract should be mistake-free, they will inevitably pop up from time to time. This is why Section 21 of the Contracts Act 1950 allows agreements to be voided (cancelled) if both parties made a mistake related to a fact essential to the agreement – which is basically the reason why you’re signing the contract in the first place. Here’s how Section 21 is worded: Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void. In order to come within the scope of this provision, two requirements have to be fulfilled: The mistake must be made by both parties of the contract where both parties are wrong about the subject of the contract. The mistake must be related to something (fact) that’s important for the agreement to happen. For example, if you’ve entered a contract to buy a double-story house house for RM2 million, the fact that it’s a double story house and the fact that RM2 million will be given in exchange for the house are both important. The contract cannot happen if neither of these elements exist. There are generally TWO categories of mistakes that can be made by both parties, which we’ll look at below: 1. When both parties made a mistake about the existence of the subject This applies when both parties do not know that the subject of the agreement has ceased to exist or has never existed when the contract was signed. For example, you entered a contract to buy a puppy poodle from someone who’s poodle had just given birth. However, as you and the seller are signing the agreement at the kopitiam, the puppy poodle unexpectedly dies. Since both you and the seller were unaware of the puppy poodle’s death when the contract was signed, the contract will no longer be valid. 2. When both parties made a mistake on the identity of the subject For this situation, we’re gonna use our earlier “iPhone example”. As a recap, the seller has an iPhone 5 he wants to sell, but he thinks it’s an iPhone 5s. When you bought it from him, you thought you were buying a 5s too. Because BOTH the parties here made a mistake on the “identity” of the subject matter, the contract would be covered by Section 21 of the Contracts Act 1950 – making the contract invalid. There’s no mistake, if….. 1. Only one fella makes a mistake a.k.a unilateral mistake If you noticed our earlier examples when mistakes are made, they’re mistakes made by both parties. However, if the mistake is made by only one person, the contract wouldn’t be void. In such situations, Section 23 Contracts Act 1950 provides that the contract still stands: A contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to a matter of fact. So if we were to revisit the iPhone example. If the iPhone seller knows that he’s selling you an iPhone 5 but you thought you were buying an iPhone 5s, there will be no mistake and the contract will still be valid. 2. You both make a mistake as to the law We have covered situations where mistakes were made and the mistakes had to with facts, basically people getting their facts wrong. However when people get the law wrong, there’s no such a thing as a mistake. In the case of Seck v. Wong & Lee (1940), Mr. Seck asked Mr. Wong (who was an architect) for some architectural drawings. After being given the drawings, he paid Mr. Wong RM500 for it, because he thought he was legally bound to do so, when in fact he was not. So he tried to sue Mr. Wong for the money back, because they made a mistake as to law. Unfortunately for Mr. Seck, the court said that he can’t get his money back because a mistake as to the law wouldn’t make a contract void. But weirdly enough, this ruling would apply to mistakes people make on Malaysian law. So that means if a mistake is made on foreign law, the contract would still be valid. You get back what you’ve given, and you return what you received We’ve been talking about how a contract becomes void if there’s a mistake. But we realise you’re probably going “Okay la contract void, but so what?”. Well, the contract will no longer exist, and the Contracts Act 1950 will allow you to get your money back! Woohoo! But before you celebrate you can’t keep the item you’ve received and get your money back, you must return back the item you’ve received. This is basically how the courts try to put you guys back to the position as if the sale didn’t happen."
"Betul ke bercucuk tanam di luar pagar rumah salah di sisi undang-undang? Sudah menjadi satu benda yang normal untuk kita melihat tuan rumah bercucuk tanam di depan rumah mereka dan kebiasaanya tumbuh-tumbuhan tersebut tak melangkaui ke jalan raya atau jalan tar dan hanya berada di atas bahu jalan sahaja. Tapi persoalannya di sini adakah ia salah di sisi undang-undang memandangkan ia telah pun melebihi dari tanah tuan rumah. Kalau dibenarkan, siapa yang perlu tuan rumah tersebut meminta kebenaran? Jiran-jiran atau / dan pihak kerajaan? Dalam artikel ni kami akan membincangkan isu tersebut, jom kita lihat apa kata undang-undang… Undang-undang kata boleh tapi ada syarat Secara am-nya tuan rumah boleh menghubungi pihak Majlis Perbandaran tempatan mereka untuk sebarang modifikasi atau bercucuk tanam di sekitar kawasan rumah. Undang-undang dan garis panduan ni pula telah ditulis oleh pihak Jabatan Perancangan dan Desa (PLAN) dan Kementerian Perumahan dan Kerajaan Tempatan. Menurut garis panduan yang telah dikeluarkan: “Undang-Undang Kecil 18 (UUK18) di bawah Undang- Undang Kecil Bangunan Seragam 1984 (UKBS 1984) membenarkan sesuatu bangunan yang telah siap dan mempunyai sijil fitness diubahsuai tertakluk kepada dua keadaan berikut, iaitu; a) pengeluaran permit oleh PBT ke atas pelan lakar yang dikemukakan sebagai memberi kebenaran untuk menjalankan kerja ubahsuai yang dipohon; atau b) PBT meluluskan pelan-pelan yang dikemukakan oleh PSP dan setelah kerja-kerja ubahsuai siap, CCC akan dikeluarkan.” – Kementerian Perumahan dan Kerajaan Tempatan. Jadi agaknya semua dah tau tuan rumah boleh buat modifikasi rumah tapi kena ikut peraturan yang telah ditetapkan. Tapi takkan nak tanam pokok cili pun kena ada sijil? Menurut PLAN, garis panduan yang dikeluarkan mereka untuk bercucuk tanam dan pengubah suaian di lorong belakang rumah hendaklah di baca sekali dengan Akta Perancangan Bandar dan Desa 1976 (Akta 172), Akta Jalan, Parit dan Bangunan 1974 (Akta 133) dan Undang-Undang Kecil Bangunan Seragam (UKBS), 1984. Dengan berkata sedemikian, PLAN membenarkan tuan rumah untuk bercucuk tanam dengan beberapa perkara yang perlu dipatuhi. Yang pertama sekali ia hendaklah mematuhi garis panduan keselamatan api dari Undang-Undang Kecil Bangunan Seragam (undang-undang tersebut telah diselaraskan dan wajib diguna pakai untuk semua negeri). Senang cerita pengubah suaian yang dilakukan tidak menyebabkan kebakaran merebak dan memudahkan untuk orang melarikan diri jika berlaku kebakaran. Yang kedua pula adalah aspek kebersihan, diikuti dengan kesendirian (privacy), tanpa menghiraukan keselamatan, dan juga mengambil kira tentang kemesraan pengguna lain. Undang-undang ni dipatuhi oleh semua pemaju rumah, jadi semua tanah kosong kat depan rumah landed tu tuan rumah boleh bercucuk tanam lah? Sebenarnya tak juga kerana… Jenis tanaman dan lokasi penanaman juga main peranan Satu laporan dari Berita Harian berkata tanah rizab yang perlu digunakan oleh kerajaan untuk tujuan tertentu dan kepentingan orang ramai tak boleh digunakan dengan sesuka hati. Tapi ni tak semestinya tuan rumah langsung tak boleh nak tanam apa-apa, mengikut budi bicara pihak berkuasa sebenarnya boleh je kita nak tanam tumbuh-tumbuhan janji ia tidak membahayakan orang sekeliling dan tidak berbentuk monopoli. Menurut PLAN, pemilihan tanaman untuk lorong belakang rumah perlulah dipilih dengan betul, kalau ada orang tanam tumbuhan yang memberi ruang kepada penjenayah untuk masuk ke rumah atau menyorok maka ia tak dibenarkan. Hanya pokok yang berketinggian maksimum 1 meter sahaja boleh. “Pemilihan dan susunan tanaman/pokok bersesuaian perlu diberi perhatian bagi mengelak wujudnya suasana terlindung atau gelap yang mana boleh memberi ruang kepada kejadian jenayah.Hanya tumbuhan renek (shrub) yang berketinggian kurang daripada 1 meter dibenarkan. Contoh tanaman yang sesuai adalah seperti melur(jasminum sambac), heliconia(heliconia spp) dan siantan (ixora cocinea)” – Jabatan Perancangan Bandar dan Desa Semenanjung Malaysia Kementerian Perumahan dan Kerajaan Tempatan Jangan ada yang gatal tangan nak tanam pokok durian kat tengah bandar, nanti ‘durian runtuh’ lagi banyak masalah yang akan timbul. Tapi tu untuk rumah landed, macam mana pula rumah apartmen dan kawasan berpagar atau gated community? Untuk rumah macam tu, mereka ada polisi dan standard operating procedur (SOP) mereka tersendiri. Bagi yang taktau skim rumah berstatus strata atau gated community adalah bangunan atau tanah dibahagikan kepada tuan tanah/rumah yang ramai,dan ditadbir bawah satu badan swasta yang kena ikut undang-undang yang telah ditetapkan oleh kerajaan. Senang cerita macam rumah kondo, tapi rumah landed pun ada juga macam ni. Pihak kerajaan yang menggubal undang-undang untuk rumah strata tersebut terletak di bawah Akta Pengurusan Strata 2013 (Akta 757) “9. (1) Tertakluk kepada peruntukan Akta ini, pemaju hendaklah, semasa tempoh pengurusan pemaju, bertanggungjawab untuk menyenggara dan menguruskan dengan sepatutnya mana-mana bangunan atau tanah yang dicadangkan untuk dipecah bahagi kepada petak-petak dan harta bersama” – Akta 757 Nak tahu lebih lanjut tentang strata, boleh tekan kat sini. Kalau apartmen dan rumah strata polisinya lain sikit Kami telah menemubual dua orang yang sedang bekerja dalam industri perumahan swasta ni. Najib yang merupakan seorang eksekutif bangunan di Lembah Klang berkata bahawa polisi bangunan dikuatkuasakan oleh beberapa badan dari pentadbiran bangunan, penduduk, dan juga kerajaan. “Polisi bangunan dikuatkuasakan oleh Joint Management Body (JMB) or Management Corporation (MC) di bawah house rules. House rules di approve oleh COB (Bahagian Pesuruhjaya Bangunan) dan hanya boleh di kuatkuasakan atau dibentangkan di dalam meeting dan mendapat kelulusan penduduk bangunan tersebut dalam majoriti vote or poll. House rules tak boleh merepek dan kene ikut guideline COB jugak. contoh pets, bunyi music, pokok tanaman, etc2” – Najib, Building Executive Antara isu yang terdapat dalam polisi bangunan adalah hal-hal mengenai bercucuk tanam manakala isu-isu yang sering menjadi keutamaan adalah binatang-binatang yang mungkin akan tertarik dengan tumbuhan yang diletakkan di kawasan apartmen. Untuk mengetahui lebih lanjut tentang jenis tumbuhan yang dibenarkan, penduduk hendaklah menguhubungi pihak pentadbiran bangunan. “Refer dengan building management/PMA yang akan refer houserules dan juga JMB/MC approval. Jenis dan jumlah boleh dimention dalam houserules as long tidak mengganggu laluan orang lalu lalang dan tidak jadi tempat pembiakan nyamuk/insects.” – Najib, Building Executive Kenyataan yang sama telah diberikan oleh Aida yang bekerja dengan sebuah syarikat kontraktor binaan terkemuka di Kuala Lumpur. Berpandukan polisi yang telah dikuatukuasakan, ada sesetengah bangunan langsung tidak membenarkan sebarang penanaman atau penggunaan pasu di dalam bangunan. “Sesetengah common area tak boleh kena kacau oleh penghuni. Macam contoh, letak pasu kat depan rumah. Sebab kat depan rumah tu kira sebagai common area dan yang tu bukan hak milik penghuni tapi hak milik management. Kalau ikut undang-undang, tuan rumah patut tau layout rumah mereka dan kalau tanah tu bukan hak milik meraka, sepatutnya tak boleh kacau” (Sic) – Aida, Property Developer” Mereka berdua berkata bahawa beza pentadbiran beza polisi dan yang penting penghuni perlu mendapat kebenaran dari pihak management dan polisi tersebut hendaklah tertakluk kepada house rules yang dipersetujui oleh Joint Management Body (JMB), Management Corporation (MC), dan juga COB. Duduk bandar tak semestinya tak boleh bercucuk tanam Berdasarkan temu ramah kami dan apa yang tertulis dalam undang-undang, tuan rumah boleh tanam pokok kat depan rumah dan ia mestilah tak mengganggu orang lain dari segi keselamatan, keselesaan, dan paling penting berpandukan budi bicara jiran-jiran dan pihak berkuasa tempatan. Tapi jangan dengar kata kami bulat-bulat! Anda digalakkan untuk menghubungi kerajaan tempatan untuk mendapatkan kepastian. Kalau nak berkebun secara agresif mungkin tuan rumah boleh apply permit seperti inisiatif yang dibawakan oleh pihak berkuasa tempatan (tak semua tempat ada). Seorang penduduk di Shah Alam yang telah kami temuramah berkata, kawasan kejiranan mereka telah apply lot tanah untuk berkebun di dalam bandar. Pertama sekali ia perlulah mendapat persetujuan dari jiran-jiran dan kemudiannya menghubungi MBSA (pihak berkuasa tempatan) untuk mendapatkan surat rasmi. “Setakat ni kami telah bayar dalam RM3500 untuk tanah dan bukan kami je ada, jiran-jiran lain pun terlibat sekali. So kami share la tanah tu untuk berkebun. Pihak MBSA ada buat inisiatif untuk berkebun kat bandar, dorang just tanam sayur-sayuran je.” – Miya, Shah Alam Sebenarnya macam di Shah Alam, pihak berkuasa tempatan MBSA telah membuat beberapa program Kebun Komuniti. Secara ringkasnya tinggal di bandar bukanlah alasan untuk tidak berkebun bagi sesiapa yang berminat. Dan memandangkan pihak majlis perbandaran mempunyai kuasa untuk mengubal undang-undang kecil, perlaksaan untuk bercucuk tanam terletak di bawah budi biacara mereka yang perlu diikuti dengan undang-undang ditetapkan oleh pihak Kementerian. “Undang-Undang Kecil merupakan suatu undang-undang yang dibuat di bawah bidang kuasa pihak berkuasa tempatan. Pihak berkuasa tempatan seperti Majlis Perbandaran Ampang Jaya (MPAJ) boleh dari semasa ke semasa membuat, meminda atau membatalkan undang-undang kecil mengikut perkara yang diingini bagi kawasan pentadbiran pihak berkuasa tempatan tersebut.” – Akta Kerajaan Tempatan 1976 (Akta 171) dan Akta Jalan, Parit dan Bangunan 1974 (Akta 133) Kepada sesiapa yang tengah bercucuk tanam tu, selamat maju jaya!"
"What do you think about Malaysia's smoking ban? Take our survey!  It’s been almost two weeks since the nationwide ban on smoking in public areas has come into effect, and it’s been generating a lot of heated discussions from smokers and non-smokers. Take a look at the comments section of our smoking article for an example. Because it usually takes a while to see the results or effect of a law (especially a nationwide one that affects so many people), we want to know what you think of the smoking ban now that you’re experiencing it first-hand – is it what you thought it was going to be? Do you see areas where it can be improved? Let us know in the survey below! Click here if you’re having trouble with the form below Loading..."
"How will the Malaysian government limit the term of the Prime Minister? Some time back, the ruling Pakatan Harapan coalition announced plans to limit the tenure of the Prime Minister, Menteri Besar, and Chief Minister to two terms, in contrast to the current system that allows the post to be held by the same person for an unlimited number of terms. However, this is easier said than done, since the post of Prime Minister is created and defined by the Federal Constitution; appointed by the Yang di-Pertuan Agong (YDPA) as per the rule in Article 43(2). So in order to change this, they’ll need to change the Federal Constitution. But changing the Federal Constitution isn’t as simple as changing any other law. It’s the supreme law of the country - the backbone that all our laws are based on. It provides for all sorts of rules for how the country works, covering basic rights like making slavery illegal, freedom of speech, freedom of religion, and even how citizenship is earned. So in order to change it…. You need a two-thirds majority in Parliament to agree To make a direct change to the Federal Constitution, Parliament needs to pass a Bill stating the amendments they want to make, as they would usually do with any other law. But, this isn’t like changing any other law, the big condition they require is at least two-thirds of MPs’ support towards that change. If you paid attention in History or Malaysian Studies classes, you may already know this, but here’s the actual Article for reference. Federal Constitution - Article 159(3) “A Bill for making any amendment to the Constitution…...shall not be passed in either House of Parliament unless it has been supported on Second and Third Readings by the votes of not less than two-thirds of the total number of members of that House.” - emphasis added Some amendments are exempted from this requirement, like any changes that are merely incidental when Parliament changes another law (for example, if one day we can tell Artificial Intelligence (AI) to say things, and Parliament drafts a new law to regulate AI, the meaning of “freedom of speech” might be modified to include that scenario), but this is the general requirement that must be met. That’s why it’s such a big deal for a political party to command a two-third majority in Parliament - it becomes a lot easier to push Constitutional amendments through. There’s an exception if the amendments affect Sabah and Sarawak Sabah and Sarawak get a lot of special treatment in our constitution (more on that another time) due to the agreements struck to form Malaysia. One of these special positions they have is that any amendments to the Constitution that affect the status of Sabah or Sarawak must be agreed to by the Yang di-Pertua Negeri of Sabah and/or Sarawak (not to be confused with the YDPA). These matters include: The citizenship of people born before Malaysia Day and right to equal treatment The powers of the High Court of Sabah and Sarawak and how they operate The power of Sabah or Sarawak to make its state laws and authority to enforce them. Financial arrangements between Malaysia as a whole and Sabah/Sarawak Religion in the State, and the use of any language in the State or in Parliament The special treatment of Natives To clarify, the original question of limiting the PM’s term in office probably won’t apply to these exceptions. But returning to that issue… Parliament will probably amend Article 43 to limit the PM’s term Currently, the only clear situation where the Prime Minister would lose their position is when he no longer commands the confidence of a majority of Members of Parliament (MPs). In that situation, the PM must either request for the Yang di-Pertuan Agong to dissolve Parliament, or tender the Cabinet’s resignation (the government’s collection of ministers, which includes himself). This generally happens if the Dewan Rakyat passes a motion of no confidence, or if the government’s budget cannot be passed. The government is currently studying the Constitution to know for sure what amendments need to be changed. Until then...we wait to see what develops."
"Will you get in trouble if you saw a serious crime but 'buat tak tahu'? Imagine yourself in the following situations: You hear a woman screaming from your neighbour’s apartment. When you look out from your window, you see your neighbour kicking and beating his wife One a night when your neighbour went out for dinner, you see a man with a knife breaking into your neighbour’s house You witness your friend selling and taking drugs in a nightclub You walk on a street, and out of a sudden you see a man robs a handbag from a lady, who fells onto the floor and cries for help It doesn’t take a policeman to know that a crime is being committed in the scenarios above. But what if you decided it was none of your business and ignored it… pretending that nothing happened? While it may be morally and socially irresponsible, could it also be illegal? So, are you legally required to report a crime which you are aware of? Yes, but only limited to certain serious crimes. To look at this question in more detail, we need to look at the Criminal Procedure Code (‘the CPC’). Section 13 of the CPC imposes a duty on the public to give information about certain crimes that we are aware of. The public is also required to give information about any unnatural death or death by violence, or about any body of any person being found dead. A list of crimes has been listed down under Section 13, and here are some examples: Waging war against the Yang di-Pertuan Agong, Ruler, or Yang di-Pertua Negeri Possessing weapons or missiles at riot Murder Kidnapping or abducting Exploiting any person for the purpose of prostitution Rape Incest Buggery with animal Carnal intercourse without consent Incites a child to an act of gross indecency Theft with preparation of causing death or hurt in order to commit theft Extortion Robbery House trespass in order to commit an offence punishable by death or life imprisonment Housebreaking by night Of course, this isn’t the full list and some crimes may have different levels of severity; but it should give you a pretty good idea of what kinds of crimes warrant reporting. What if you failed to report the crime? If you are aware of any person committing these offences, you are legally required to immediately report the incident to a police officer, unless you have reasonable excuses for not doing so. A ‘reasonable excuse’ could be very subjective as it largely depends on the specific circumstances of the case. For example, not reporting the crime because you’re afraid that your violent neighbour will set fire to your house (or worse) may be seen as a more reasonable excuse than not reporting a crime because you didn’t want to be late for work. When you are legally bound to give information about the crime but you purposely refuse to do so, you can be charged with “intentional omission, by a person bound to inform, to give information of an offence” under section 202 of the Penal Code. If you were found guilty of the offence, you may face imprisonment up to 6 months or fine up to RM 2,000, or both. The CPC is not exhaustive in providing the list of crimes that require you to report. The obligation to report is also stated in some other legislations, for example: Duty to report bribery transactions (section 25 of the Malaysian Anti-Corruption Commission Act 2009), failing to do so will be imposed a fine less than RM 1,000 or imprisonment up to 10 years, or both. Duty to report sexual offences against children (section 19 of the Sexual Offences Against Children Act 2017), failing to do so shall be liable to a fine up to RM 5,000 Suffice to say, it might be a good idea to make a police report regardless, since... You never know when your report may prevent or solve a crime The case of Kitty Genovese is often used as an example of the Bystander Effect, where everyone assumes someone else will take responsibility for making a report… leading to no report actually being made. Kitty Genovese was robbed and stabbed outside her apartment door and screamed for help as she was left bleeding on the doorstep. More than 30 people heard her screams (some even looked out their windows) but no one called the police or went to help. Because of this, the robber felt brave enough to return 10 minutes later to stab and rape her. None of the witnesses got in trouble for not reporting the incident, but the question to ask is… would she be alive if someone did? Therefore, you never know how much impact you can make by making a police report. There are a few ways that you can report a crime: Go to the nearest police station Call 999"
"Anthony Loke wants to change the way your child goes to school in 2019 Unless you’re one of the lucky kids whose parents dropped you off and picked you up from school, there’s a high chance you would have either taken a school bus or the “driver uncle/auntie” – one of those private cars that would send and pick you up from school just like a regular school bus. Everything was fine, nothing went wrong, right? There’s a common perspective that private cars are better than school buses, in the sense that they’re safer and less crowded (so the driver would technically know when a child is missing). However, this isn’t necessarily the case, simply because these private cars aren’t registered to ferry schoolchildren, and aren’t bound by the rules and regulations that registered schoolbuses have to follow. For example, you could make a complaint against an irresponsible schoolbus driver, but it’s not the same when it comes to a private car as it’s not operating as a registered business or bound by any regulations for safety and sufficient practices. While some of you are scoffing at the point about buses having regulations (have you seen how bad some of them are??), you’re not alone! Current Transport Minister Anthony Loke has acknowledged the problem of bus shortages, and how unregistered drivers are basically filling in that gap. The transport ministry is coming up with a solution to this in 2019, but more on this later. But in order to understand this further, let’s take a look at... Rules and practices that already exist. Currently, there are several regulations and schemes that have already been established for schoolbuses, and were previously enforced by the Land Public Transport Commission (SPAD). However, there has been a bit of a shakeup in that department as SPAD has been reformed as the Land Public Transport Agency (APAD). At the time of writing, there is no website available for APAD, and the SPAD website is temporarily unavailable. But until further developments are made, let’s take a look at the existing practices and rules that may ensure the safety and legality of registered school vehicles. First off, did you know that your child is automatically protected via an insurance policy if you sent him/her on a registered school bus? Yup, children who take registered schoolbuses are eligible for the School Children Insurance Coverage Scheme (SCICS). Now this is somewhat reassuring to parents who are dependent on public transportation for children. Also, school bus operators need to be registered with SPAD, and are obligated to undergo the Industrial Code of Practice (ICOP) safety programme in order to ensure the driver and vehicle used is safe on the roads. ICOP has established several objectives: More regular checks on the drivers and operators. Drivers must undergo intensive training given by trainers. Buses and minivans will undergo regular servicing. Bus operators must manage risks and maintain a record of the risk data If you’re looking for deeper insight, the codes of practice are listed under the Occupational Safety and Health Industry Code of Practice for Road Transport Activities 2010. So what’s in store for 2019? Remember how we mentioned at the beginning of the article that Anthony Loke acknowledged the schoolbus problem in Malaysia? Here’s how severe it is – There are only 14, 080 registered school buses, and approximately 3.94 million school students in the country (that’s way too many students for so few buses!) Right now, the Transport Ministry is looking into a more organized transportation system, which may involve the registration of private driver uncle/auntie cars. Although these are still in the works, there’s one clarification that should be made… parents sending their own kids to school won’t be required to register or follow any of the current or upcoming guidelines."
"Can our Yang DiPertuan Agong resign, and who's next in line? 2018 was a year of a lot of firsts for Malaysia. We had the first change of government since independence, and even the first female Deputy Prime Minister. Well 2019 didn’t start off too differently because it kinda started off with another first – the abdication of our Yang di-Pertua Agong (‘abdication’ is a fancy way of saying a royal resigned from the throne). On the 6th of January 2019, our YDPA DYMM Sultan Muhammad V of Kelantan shocked the nation by abdicating the throne. Because it was the first time such an incident happened in our country, there has been a peak in speculations and questions regarding our monarchy. Therefore some of you are probably curious about this whole resigning/abdicating thing and if you are one of those fellas, the first thing you may want to know is…. Our Federal Constitution allows the YDPA to resign Although, it’s the first time in Malaysia in which our YDPA has abdicated the throne, that’s not the case in other countries with monarchies. In fact somewhere around 1936 the king of England at that time, King Edward VIII abdicated. In order to make his abdication legit, he had to do a couple of things which included signing some official documents, and enacting a law called His Majesty's Declaration of Abdication Act 1936. Similarly in Malaysia if our YDPA wants to abdicate the throne, there has to be a law which allows for abdication and the processes that give affect to it. If you look at Article 32(3) of our Federal Constitution, it says: “The Yang di-Pertuan Agong shall be elected by the Conference of Rulers for a term of five years, but may at any time resign his office by writing under his hand addressed to the Conference of Rulers...” So basically our YDPA has to serve on the throne for 5 years, but he can resign before that 5 year term is up. And if our YDPA does choose that option, all the YDPA has to do is write a resignation letter addressed to the Conference of Rulers. Okay now you probably know that our YDPA can legally resign, but we realise that our explanation may have brought up more questions for you. So if you’re going “The YDPA only serves for 5 years? I thought kings rule throughout their life?” and “What’s the Conference of Rulers?”…. Our YDPA is actually elected Our monarchy in Malaysia is significantly different than other monarchies. Usually Kings or Queens rule until death or resignation and then the next in line takes over (usually the eldest child of the monarch), but in Malaysia our YDPA is elected. If you’re thinking “Where got we elected our YDPA one? I don’t remember voting for him”, it’s because the citizens don’t take part in the election process. The election is actually conducted and decided by the Conference of Rulers, which is a body made out of all the state monarchs. Also to avoid further misconceptions, a ruler who wants to be the next YDPA wouldn’t need to campaign and convince the other state rulers. The election process isn’t like our general election where we vote for a parliamentary candidate. There’s a queue system the Conference of Rulers follow, and they just elect the next ruler in line for the throne. So who’s next in line for the queue? Well the queue is based on the first 9 state rulers who became YDPA, and it looks like this: Yamtuan Negeri Sembilan Sultan of Selangor Raja of Perlis Sultan of Terengganu Sultan of Kedah Sultan of Kelantan Sultan of Pahang Sultan of Johor Sultan of Perak Following this list because our former YDPA is a ruler from Kelantan, the next in line for the throne would be the Sultan of Pahang. But until he’s elected... Our deputy-YDPA will take over the royal duties Now that our ex-YDPA has resigned, it doesn’t mean we’re Agong-less. There’s actually a deputy YDPA who will take over the duties of the YDPA until the next in line is elected. During Sultan Muhammad V’s tenure as YPDA, his deputy was Sultan Nazrin of Perak. So in the mean time until the next YPDA is elected, Sultan Nazrin will take over the everyday duties of the YDPA. So he will advise and be advised by our Prime Minister, dissolve Parliament if necessary and give consent to any laws enacted in Parliament. [READ MORE: Wait what, Malaysia has a deputy-Agong?]"
"If a lawyer refuses to take your case in Malaysia, what can you do? The chances of you getting into a situation where you may have to sue someone can be quite low, but it’s not entirely impossible. Touch wood but, it’s possible you can get into a minor accident, get cheated in a contract, or have an annoying neighbour who won’t stop playing the drums at midnight. If you’re faced with such a situation, you’re probably gonna need a lawyer to advise you on your rights and worse comes to worst – help you navigate the intricacies of litigation (basically to sue them lah). If really die-die you can’t solve your problem and you must sue, the first thing you have to do is contact your lawyer or find one to take your case. You may think that any lawyer would be happy to jump on the case because, money. But what if you end up in a lawyer’s office, you pour your heart out about the legal troubles you’re in, and then he says…...“I’m sorry man, I can’t take your case” ? A Malaysian lawyer must accept every case, kinda Before we get into what our Malaysian lawyers are supposed to do, it’s probably best to analyse how the British lawyers handles cases that come to them – because most of our legal practices come from there anyways. So in the United Kingdom there’s this thing called the “cab rank rule”. It’s aptly named after those taxi lines you may have experienced in taxi stands. You know, where you must hire the first taxi in line and that taxi driver must take you too? Similarly in UK, a lawyer must take the first case that comes to him and he can’t say NO. Now taking things back home, Malaysia has a similar rule which has a slight variation. The law says that a Malaysian lawyer must take every case too but….he kinda can say no if he has a proper excuse. Unfortunately, we don’t know what would amount to a proper excuse and who decides what’s a proper excuse – because the law is worded quite vaguely. And if you don’t believe us, you can check out Rule 2 of the Legal Practice and Etiquette Rules (LPPER) 1978: “An advocate and solicitor shall give advice on or accept any brief in the Courts in which he professes to practise at the proper professional fee dependent on the length and difficulty of the case, but special circumstances may justify his refusal, at his discretion, to accept a particular brief.” Thus, while lawyers sorta kinda can refuse a case if he has a good excuse, there are actually situations where he MUST REFUSE your case. This would be scenarios where… He can’t do his job professionally Despite the jokes which depict lawyers as greedy for money and evil, lawyers are actually encouraged to behave with integrity and impartiality. This is because in addition to being your lawyer, they’re also an officer of the court – which means when they handle your case, they must do so carefully to ensure a fair administration of justice. They basically, can’t simply do anything to win. So to ensure that lawyers behave, they aren’t allowed to take cases where… The lawyer is EMBARRASSED This is not a situation where your lawyer happens to feel shy with you. It’s an actual term used in Rule 3 of the LPPER, which says that a lawyer would be embarrassed if: he has a personal relationship with his potential client or he has a personal relationship with the defendant he has a personal relationship with a potential witness in the case While you’d think having a family member as your lawyer would be really awesome (maybe even cheap), that’s not always case. If you really think about it, you wouldn’t want your father in-law as your lawyer to help out with your divorce proceedings right? On the flip side, if let’s say your wife is a lawyer and you wanna sue your neighbour for playing the drums at midnight, she can’t take your case. While she may go all out to win the case, it may not gel well with her responsibility to be impartial – because she may no longer act professionally when the matter could be quite personal. The reasons behind it is quite technical but to give you an idea, it’s like how a teacher shouldn’t mark her own daughter’s exam paper. The lawyer has to change sides Using the same drummer-neighbour example, let’s say you hire a lawyer who’s unrelated to you (ie no personal relationship). During the trial, you get mind blown because his skills could put Harvey Specter to shame. Unfortunately, the drummer also notices this and offers to pay your lawyer more money to switch sides. Luckily, this won’t happen because of Rule of 5 LPPER : “An advocate and solicitor who has at any time advised or drawn pleading or acted for a party in connection with the institution or prosecution or defence of any suit, appeal or other proceedings shall not act, appear or plead for the opposite party in that suit, appeal or other proceedings.” This rule basically says that a lawyer can’t represent a party if he has already advised the opposite party. Using our example, the drummer would have a lawyer who knows your side of the case too well, and this gives him an unfair advantage. The lawyer is either a witness in your case or he’s too busy to appear in court as lawyer Errr, this one is pretty self-explanatory. If the lawyer you wanna hire is gonna be a witness in your case, he can’t accept your case. And if he doesn’t have time to appear for your court dates, he shouldn’t accept your case too. If you feel like your lawyer wrongly rejected your case, you can complain We may have angled our points in the context of suing someone (civil suits), but getting denied by a lawyer can happen in criminal matters too. But in such cases, you’ll always have the option of going for legal aid. [READ MORE: How to legal Aid] As you can see from the rules we laid down for you, it’s a little vague. Sometimes if a lawyer rejects a case, it may be uncertain if he was actually following the rules. But if you’re ever in such a situation, don’t worry because you can make a complaint to the Bar Council Disciplinary Board. Whenever a lawyer breaks a rule in the LPPER he may come under the jurisdiction of the Disciplinary board, so if he rejects the case wrongly the Board can actually take action. So if that’s what you think you should do, you can actually follow the steps for it here."
"5 things you can't claim if you get into an accident in Malaysia If you’ve gotten into an accident in Malaysia (touch wood), a word you’d be very familiar with is “Claim” – basically claim-ing damages from the person who hit your car, or from their insurance. However, there’s actually one other kind of claim that you can make… a claim when you’re suing that person in court, more professionally known as a court claim. This usually happens when the person who hit you causes damage beyond what their insurance will pay for. For example, their insurance might cover the cost of fixing your car, but it will not cover the cost of the 5 years of physiotherapy you’ll need to fix your broken legs caused by the accident. This is where you or your family members need to sue them in court and claim for these expenses. [READ MORE: How do you even start suing someone in Malaysia?] However, you should know that there are only certain things you can claim from the guy who hit you in court. A judge wouldn’t let you claim for anything under the sun, because there are limits to what you can claim for in a court case – particularly for motor vehicle accidents. So one of the many things you can’t claim for as an accident victim is... 1. Private hospital expenses General rule is that if you receive your medical treatment in the government hospital, you can claim for the full amount you spent there. However if you seek treatment in a private hospital, the court would not allow you to claim for those expenses – unless it’s justified. So if you die-die wanna get treatment in the private hospital and you wanna make sure it’s justified, the case of Chai Yee Chong v Lew Thai actually provides what the justifications are. So in this case, Chai sued his boss because he suffered work related injuries. He went to a private hospital and tried to claim for the costs from Lew. However, the court said that he can’t claim for private hospital treatment unless: The government hospitals don’t have the treatment Due to the urgency of the situation, you had to go to a private hospital The government hospital didn’t have the necessary equipment or specialist doctors So yeah, this means that you can’t choose the most expensive and luxurious hospital to get treatment, because the whole point of your hospitalisation should be to get healed. 2. Traditional medicine expenses For some when they have the common fever or flu, instead of taking the usual paracetamol or antibiotics, some people may opt for a good dose of traditional remedies. No shade on which type of medicine you prefer (conventional or traditional), Similarly, because the reality of getting injured in an accident can be a hard pill to swallow, there are those who may want to opt for traditional remedies to treat their injuries. However if you do choose that option, be aware that the court may not be on your side when you try to claim for those expenses. Under the law if you seek traditional medicine treatment, you cannot claim for those costs. But contrary to popular belief, the law is quite an understanding entity. Because there are some exceptions where the court will allow to claim for expenses incurred via traditional medical treatment. In the case of Seah Yit Chen v Singapore Bus Service, Ms. Seah collided with a bus while riding a motorcycle, and required spinal surgery, plastic surgery, and a bunch of other treatments to fix the injuries caused by the accident. Since the accident was caused by the bus driver, Ms. Seah went on to sue the bus company for her hospital treatments as well as the Traditional Chinese Medicine (TCM) treatments that she took on the side. The court said while people can’t claim for traditional treatments, they could do it if: it was reasonable to seek such treatment the treatment was sought after being given reliable advice to do so Unfortunately, the court didn’t think that Ms. Seah’s TCM treatments fit the criteria above, so they awarded her the cost of all her medical treatments…..except the TCM. 3. Loss of wages if you’re of the retirement age Before we get into the nitty-gritty details of this law, we would like to point out that the law isn’t referring to the fact that someone has retired, but the fact that someone has reached the legal retirement age. Because sometimes people do work past the retirement age. In a worst case scenario an accident may not just cause an injury, but the injury could be so serious that the victim may have to stop working. Touch wood that it doesn’t happen to you, but if it does, fret not because the law allows you to claim for the salaries you have lost and are going to lose. However there are limits to those claims, and the limit lies with the age of the claimant. According to Section 28A(2)(c)(i) of the Civil Law Act, a person wouldn’t be allowed to claim for lost salaries if they’re 55 years old or above. So if let’s say someone who stopped working at the age 55 gets into an accident, he can’t claim for future salaries he’s gonna lose, because he’s not earning a salary anymore anyways. The same would also apply to someone who is working but he’s 60 years old (past the legal retirement age), which means he can’t claim for the loss of future salaries. 4. Loss of wages from an illegal source Similar to what was mentioned above but instead of age, you can’t claim for loss of salary if you’re salary comes from an illegal source. In the case of Chua Kim Suan v Government of Malaysia, Chua got into a fatal accident. His family sued the government for compensation, which included the salary he was supposed to get should he be alive. Unfortunately because Chua was operating an illegal taxi business, they couldn’t claim for those earnings. So if you get into an accident which caused you a serious injury which prevents you from working, and your work involves selling pirated Blu-Rays – you may have a hard time convincing a judge to award you money for lost salary. 5. Money for pain and suffering….while you were unconscious You may think that the worst thing that could happen to your body is stubbing a toe on a table leg and while that pain can be excruciating, the pain of accident injuries can definitely be way worst. That’s why our Malaysian law allows accident victim to claim money for the pain and suffering experienced due to accident injuries. But even for these there are limits. In the case of Lim Poh Choo, Lim suffered injuries during a medical procedure due to the medical negligence of the hospital’s staff. Lim tried to claim for the pain and suffering experienced from the negligence. When the court decided on that matter, they pointed out that pain and suffering can only be claimed if the victim was conscious. In essence, the court would only award damages if a victim was both aware of the pain and felt it. The claim is to reset your position, not to make you rich Well if you’re thinking it’s unfair that you can’t claim for certain things, there’s actually a legal reason behind it. Accident claims come under the tort of negligence. Thus when someone causes an accident via negligent behaviour, they must compensate their victims to put them in a financial position as if the accident didn’t happen. [READ MORE: What is a tort?] But this doesn’t mean that victims should be overcompensated or over enriched. It’s basically the courts way of making sure judgements are fair. But if you do feel the judgement sum you received isn’t fair, you can always appeal the decision to a higher court. [READ MORE: Why are there many courts in Malaysia?]"
"Are Malaysian employers allowed to fire you for social media posts? Imagine going to work one morning, as usual. Nothing out of the ordinary happens until you get to the office, where you are promptly told to pack your things and leave within the next 24 hours because… you’ve just been fired. The reason? A controversial social media post you put up over the weekend has apparently gone viral, and some people are calling for all sorts of terrible and nasty things to happen to you. You might already be familiar with the cases of “Edi Rejang” and Caryn Yean losing their jobs over silly things they said that went viral on social media. While the things they did were wrong and can be punished by law, this was all done outside of their jobs. So do their employers have a right to fire them over social media posts in the first place…? Your employer can fire you if your post affected them Normally, employers are only allowed to fire you over what happens in the workplace, not anything done during your personal time. But say, if you did something silly in your personal time, and your employer’s reputation was affected, then they have reason to fire you. This would mean situations like if you were representing your employer (being an ambassador, or public face of the company), or you were speaking on behalf of the company. At the same time, you could still legally get punished if your conduct during personal time is regulated by company’s policy, especially if you are a very visible type of employee like the C-suite (CEO, CFO, etc) or a representative. The types of conduct that are prohibited by the company and their consequences could be specified under your employment terms, which would then be good enough justification for you to get suspended, face demotion, or even lose your job (depending on the contract terms). Most of us don’t openly claim to be from Company X and represent them in our free time, but hey, we live in an age of social media where it’s pretty commonplace to state where you work on your profile. It’s probably difficult to draw the line here because while you are saying “I work here” on your profile, it may not always mean “everything I say now is tied to my work”. But at the same time, this kind of information is easy to get over the internet, and tie you back to your workplace. But your actions must be “severe” enough Okay, maybe you accidentally involved your employer in your social media flame war - now what…? Good for you (and bad for your employer) - there’s still another condition required to dismiss you, which is that your misconduct was severe enough to justify it. Dismissal for misconduct requires no notice period under Section 14 of our Employment Act 1955, unlike if it was a termination according to your employment contract. Section 14 of the Employment Act (in part) “An employer may, on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of his service, after due inquiry— (a) dismiss without notice the employee; (b) downgrade the employee; or (c) impose any other lesser punishment as he deems just and fit, and where a punishment of suspension without wages is imposed, it shall not exceed a period of two weeks.” [READ MORE - 5 things about employment contracts that every Malaysian gets wrong] But how do you define “severe” in the first place? Well, misconduct is considered anything that goes against the terms of your employment - your responsibilities. For that to be “severe”, the law says that it must be so serious that after investigation, the employer finds that your actions have damaged the relationship of good faith between you and the company. For example, if you’ve taken advantage of your position in the company to steal some money, it will be difficult to trust you moving forward. Since the misconduct we’re talking about here is social media, doesn’t that automatically affect your employer’s reputation since everything is so visible? Here’s where public opinion can be a problem When a company’s employee goes viral for the wrong reasons, dealing with the employee in the “wrong” way can further cost the company their reputation. If the public thinks that the employee deserves to lose their job, it’s difficult for the management to decide between doing the right thing by law, or losing business because the public didn’t agree with your decision and are now boycotting you. The law is the law, and it’s not something which “mob justice” can simply twist. To use an extreme example, just because a lot of people think a snatch thief deserves to die, doesn’t mean it’s now okay to beat him to death - it’s still murder. That being said, a big reason why laws change at all over time is still because of public opinion, such as when sexual harassment became recognized as something you can sue for. [READ MORE - Sexual harassment is not a crime in Malaysia. So what can victims do?] While most of us will agree that racism and insulting the Agong are wrong and should have consequences, it doesn’t always mean that the appropriate punishment is to fire them. Many acts that abuse our freedom of speech are actually recognized as crimes under the Penal Code, and offenders can be charged for that separately from whether or not they deserve to lose their job. What if your employer wasn’t justified in firing you? There’s no one-size-fits-all approach. Smoking in a clerical office might not be that serious, but it’s certainly life-threatening at an oil and gas plant. If you challenge your dismissal in court, they usually favour employees a little more and will consider whether your punishment was fair for the mistakes you made. They usually won’t allow firing an employee to be the go-to solution, and instead advocate lesser punishments like suspension when the misconduct is not that serious. If you’ve been wrongly fired, we discuss certain remedies you may be able to get in another article of ours linked below. [READ MORE - My boss just fired me for no reason, what can I do now?]"
"5 perkara penting yang perlu anda ketahui tentang undang-undang baru larangan merokok Dengan kenaikan cukai barangan tembakau yang dilaksanakan pada November 2018 dan larangan merokok di premis makanan yang akan berkuat kuasa pada tahun 2019, nampaknya Malaysia akan mengikut jejak langkah negara-negara jiran seperti Thailand dan Singapura dalam mengawal ketat undang-undang dan peraturan merokok. Mungkin sudah tiba masanya ia berlaku, jadi dengan undang-undang baru ini dan juga penguatkuasaan yang lebih ketat, anda mungkin juga tertanya-tanya – bagaimana kita akan tahu di kawasan manakah undang-undang larangan merokok akan dikuatkuasakan? Sebenarnya bukan senang untuk memperoleh dokumen berkenaan kawalan tembakau, kerana ianya di bawah Kawalan Hasil Tembakau 2004, yang merupakan kawalan yang diwartakan di bawah Akta Makanan 1983. Anda mungkin boleh merujuk kepada sebahagian sahaja daripada pindaan terbaru dalam Peraturan Kawalan Warta Kerajaan Persekutuan, tetapi dengan bantuan peguam-peguam kami, kami dapat memperolehi salinan terbaru (tidak dicetak untuk rujukan umum). Kita akan meneliti senarai lengkap di bawah untuk rujukan (petua: tanda bukukan (bookmark) artikel ini!) 1. Ada 23 kawasan larangan merokok Senarai panjang ini termaktub di bawah Peraturan 11 Kawalan Hasil Tembakau 2004. Menteri Kesihatan juga telah menjelaskan bahawa larangan ini juga berkuat kuasa ke atas vape dan shisha melainkan produk yang tidak mengandungi nikotin kerana dalam definisi undang-undang kita, “merokok” adalah “menyedut dan menghembus asap apa-apa hasil tembakau dan termasuklah memegang atau mempunyai kawalan ke atas apa-apa hasil tembakau yang bernyala”. Dengan ini, di bawah adalah senarai kawasan larangan merokok umum di Malaysia: Pusat hiburan dan pawagam (tidak termasuk pub, pusat disko, kelab malam atau kasino semasa waktu operasi mereka) Mana-mana kawasan hospital dan klinik Lif dan tandas awam Kedai makanan dan kedai berhawa dingin Kenderaan awam dan terminal pengangkutan awam Lapangan terbang Semua kawasan premis kerajaan Semua kawasan bangunan yang digunakan untuk perhimpunan (selain dari bangunan persendirian dan kediaman, atau tempat awam) Semua kawasan institusi pengajian atau institusi pengajian tinggi Semua kawasan prasekolah Bas sekolah Semua tingkat yang mempunyai kaunter perkhidmatan di bangunan yang tersenarai dalam Jadual Dua Semua kawasan pusat membeli belah Semua kawasan stesen minyak Semua kawasan stadium, kompleks sukan, pusat kecergasan dan gimnasium Semua kawasan rumah ibadah atau tempat awam Semua kawasan perpustakaan Semua kawasan pusat internet Semua kawasan latihan Khidmat Nasional Semua tempat kerja berhawa dingin yang mempunyai sistem penghawa dingin berpusat Semua kawasan rehat dan riadah di dalam bangunan, taman permainan atau taman, dan semua kawasan dalam lingkungan 3 meter dari tempat-tempat ini. Semua taman awam, kecuali tempat letak kereta awam terbuka Semua menara pemerhatian, kawasan perkhemahan, jambatan berkanopi dan 5 meter dari pintu masuk/keluar jambatan berkanopi (taman negara dan taman negeri) Semua “kawasan” seperti yang tertera di atas juga termasuk semua kawasan di persekitarannya yang dilingkungi oleh sempadan tepat-tempat tersebut, dan termasuk jarak sejauh 3 meter dari semua kawasan bumbung tetap yang bersambung dengan bangunan utama. Pesalah akan dikenakan denda sehingga RM10,000 atau dipenjarakan sehingga 2 tahun. Bangunan yang tersenarai dalam Jadual Dua (untuk senarai no.12 seperti di atas) adalah: Bank atau institusi kewangan Telekom Malaysia Berhad Tenaga Nasional Berhad Pos Malaysia Berhad Untuk semua tempat persendirian, pemiliknya boleh menetapkan syarat masuk seperti “dilarang mengambil gambar” atau contoh semasa iaitu “dilarang merokok”. Jika pelawat mengingkari syarat-syarat ini, pemilik mempunyai hak untuk mengusir keluar pelawat tersebut – jadi perhatian harus diberi jika sesuatu kawasan persendirian menetapkan larangan merokok. [BACAAN LANJUT – Bolehkan anda menghalang seseorang dari mengambil gambar anda di Malaysia?] (artikel Bahasa Inggeris) 2. Kementerian Kesihatan boleh menetapkan “kawasan larangan merokok” yang khusus Peraturan 22 Kawalan Hasil Tembakau juga membenarkan Menteri Kesihatan untuk mengisytiharkan mana-mana bangunan, premis atau kawasan yang boleh dikunjungi oleh orang awam (atau mana-mana bahagian dalam kawasan ini) sebagai kawasan larangan merokok. Beliau juga boleh menetapkan syarat untuk semua kawasan ini atas budi bicaranya, selagi keputusan beliau diwartakan dalam Warta Kerajaan Persekutuan. Versi atas talian warta ini boleh didapati di sini. Jika anda tertanya-tanya apa yang tertera dalam warta ini, anda juga boleh membaca warta mengenai kawasan larangan merokok yang terdahulu di sini. 3. Larangan merokok di semua tempat makan akan berkuat kuasa mulai 1 Januari 2019 Timbalan Menteri Kesihatan Lee Boon Chye menerangkan bahawa menjelang tahun 2019, larangan merokok akan berkuat kuasa di semua restoran berhawa dingin dan tidak berhawa dingin, kedai kopi, pusat penjaja terbuka dan penjaja jalanan. Perokok perlu berada sekurang-kurangnya 10 kaki (3 meter) dari semua kawasan di atas sekiranya mereka ingin merokok. Apa yang perlu anda ketahui adalah anda boleh melaporkan premis-premis yang tidak memberhentikan pelanggan mereka dari merokok kepada pihak berkuasa. Pemilik premis boleh dikenakan denda sehingga RM3,000 atau dipenjarakan sehingga 6 bulan jika mereka gagal mempamerkan tanda “Dilarang Merokok”, dan mereka juga boleh didenda sehingga RM5,000 atau dipenjarakan sehingga 1 tahun jika mereka tidak mengambil langkah untuk menghentikan pelanggan mereka dari merokok dalam premis. Untuk mengetahui bagaimana anda boleh membuat laporan dan bagaimana peraturan ini akan dikuatkuasakan.… 4. Masih belum jelas bagaimana peraturan ini akan dikuatkuasakan Jika anda belum sedia maklum, undang-undang berkenaan rokok pernah diketatkan dan kawasan larangan merokok tambahan pernah diwartakan sebelum ini; taman awan dan beberapa kawasan di taman negara ditambah sebagai kawasan larangan merokok pada tahun 2017. Namun, kebanyakan orang tidak pernah mengetahui penggubalan undang-undang ini kerana peraturan ini tidak dikuatkuasakan sepenuhnya. Kami masih belum pasti bagaimana peraturan ini akan dikuatkuasakan pada tahun 2019, tetapi ianya mungkin melibatkan “pegawai berkuasa” seperti yang termaktub dalam Akta Makanan 1983, yang mengatakan bahawa mereka adalah: “mana-mana pegawai perubatan atau mana-mana penolong pegawai kesihatan persekitaran dari Kementerian Kesihatan atau dari pihak berkuasa tempatan, atau mana-mana orang yang berkelayakan, yang dilantik oleh Kementerian untuk menjadi pegawai berkuasa...” Ini juga termasuk pegawai dari Kementerian Kesihatan, dan juga pegawai dari majlis tempatan. ini juga dijelaskan melalui kenyataan Kementerian Kesihatan bahawa seramai 5,000 orang pegawai Kementerian Kesihatan sedia ada akan memikul tanggungjawab untuk memantau premis. Masih belum pasti jika polis akan terlibat dalam penguatkuasaan ini, tetapi anda boleh melaporkan segala aduan kepada semua pihak berkuasa yang dinamakan di atas. 5. Ada 6-bulan tempoh ihsan (grace period) Walaupun larangan akan berkuat kuasa, namun hukuman untuk merokok di kawasan larangan (denda RM10,000 atau penjara sehingga 2 tahun) tidak akan berkuat kuasa menjelang 1hb Januari 2019. Menurut Timbalan Menteri Kesihatan Dr. Lee Boon Chye, 6 bulan pertama selepas larangan berkuat kuasa adalah tempoh ihsan (grace period) untuk mendidik perokok. Tapi...ini tidak bermakna pegawai berkuasa tidak mempunyai kuasa untuk menghukum pesalah. Perokok yang masih degil akan didenda serta merta jika mereka enggan bekerjasama dengan pegawai terlibat. Walaupun orang ramai dan pemilik perniagaan tidak boleh menguatkuasakan peraturan dengan sendiri (selain menegah perokok dari merokok), mereka masih boleh membuat laporan melalui talian Kementerian Kesihatan di 03-8892 4530."
"What happens to a company if it’s guilty of a crime in Malaysia? We’re all quite familiar with what happens to a person when they are convicted of a crime - they get fined and/or put into jail. Even when a person commits a corporate crime like graft, they get punished the same way like this director who stole RM18.9 million from companies he was in charge of. Malaysians are familiar with companies themselves being up to no good, like Lynas. More recently, our government is pressing criminal charges against investment bank Goldman Sachs for its involvement in the 1MDB scandal, which is a company. But how do you charge an entire company with a crime, instead of the individuals responsible? Does that even make sense? Even if you find the company guilty, how do you put a company in jail? You can’t exactly throw their logo, company files, or their building into jail, so shouldn’t you go after the people in the company instead? Yes, you’d go after the people acting on behalf of the company, but you would still include the company as one of the “criminals” for a few reasons we’ll explore below. The company is better at taking responsibility Put simply, making the company take responsibility is more efficient. It has more money to pay fines than a person, it’s much harder for a company to “run away”, and as you’ll see later, going after the company can also make its directors responsible automatically. When an employee commits a wrongdoing, lawyers will want to go after their company alongside the employee because of a rule called “vicarious liability” - which refers to the fact that because the company is in charge of the employee and the employee is under orders, the company will have to take responsibility. But, if the employee didn’t follow their orders, then the company is not responsible. For example, if a bus driver lets another person drive when they’re not supposed to, and then bus crashes, then the bus driver is solely responsible - the company is not involved. To put simply, if the employee was acting outside of their duties, whether they were off-duty or disobeying orders, then the company doesn’t take any responsibility. [READ MORE - If a worker hurts you by accident in Malaysia, do you sue him or his boss?] There’s a rule that makes the people in charge of the company responsible A company can’t actually do things without people to be its brains, arms, and feet. Under certain principles of law, you can actually hold the people who were acting on behalf of the company responsible for a criminal offence. This isn’t enshrined in any particular law in our country, although some of our laws do specifically make the directors, agents, and officers of a company personally liable for crimes related to terrorism, like in Section 87 of our Anti-money Laundering, Anti-terrorism Financing And Proceeds Of Unlawful Activities Act 2001. Generally speaking, a company is considered a separate legal entity, like a different “person” from the people who work for it - but the law will also not allow this to be abused. There’s a legal practice of “lifting the corporate veil” in certain cases to make sure justice is done. For example, if a company’s director decided to use the company to cheat its shareholders, you can actually bypass the company and hold the director directly responsible if he was using the company as a convenient “shell” or “shield”. Similarly, you could hold employees of the company responsible as well if they were the decision maker behind the crime. On top of that, the directors, being in charge of the company, may have to justify that the crime: Happened without their permission/They were not in on it They took all reasonable measures within their power to prevent the crime from happening [READ MORE - How is a company considered a ""person"" in the law?] But how is a company punished if it’s guilty of a crime? A company’s punishments work quite differently from normal people since we’ve already established that you can’t send a company jail. Instead, there are a few other types of punishments that are used: Fines Reprimands (just a warning) Suspension of trading or delisting (for public companies) Dissolution (company is forced to close down) When you have a situation where directors or employees are responsible together with the company, you can still give jail terms to the actual people, while you fine the company. Take how Goldman Sachs was charged by Malaysia - our government is looking to slap Goldman Sachs with huge fines, but the jail time that they want to impose will be served by the people in charge who acted for the company. If a company wrongs you, but it’s not a criminal offence (one that concerns the country where the government steps in), you may still be able to bring a civil action (dispute between individuals) against the company and even it’s directors under certain cases. You can read more about that in our other article linked below. [READ MORE - If a company in Malaysia fails, can I sue the directors?]"
"Can you sue if someone breaks a pinky promise in Malaysia? As kids, the most solemn promise we could make to one another is a pinky promise. To break it would mean death probably some social shunning or intense Asian parent disappointment. However, as we got older, pinky promises became verbal promises which became written contracts after reading AskLegal articles. However, you know from our articles that (most) verbal contracts are actually legally enforceable but just a taddd more difficult to prove in court. With this, our editor had the brilliant idea to wonder...are pinky promises legally enforceable? The answer will shooketh you because... [READ MORE: What happens when you sign a contract without reading it in Malaysia?] Pinky promises ARE enforceable We know some of you might find this incredulous while others might be busy ringing up Johnny from Standard 5 to ask him if he remembers pinky promising you his limited edition Spiderman comic. To quell that incredulousness (or give you the legal knowledge to put Johnny in his place), let’s look at the Contracts Act 1950 (""CA 1950"") to find out what makes an agreement and what turns that agreement into a legally binding contract. Section 10 tells us what turns an agreement into a legally binding contract and to sum it up for your guys, it’s these following points: Free consent Consent is defined in section 13 and section 14 of the CA. There is basically free consent when parties to the contract agree to the same thing in the same way and there aren’t any factors such as fraud or misrepresentation that could affect it. Competency Competency is defined in section 11: “Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.” In summation, competency to contract is found in two things: Being an adult (above 18) Having a sound mind (not suffering from any mental illnesses at the time of contracting) Unfortunately, this means that that pinky promise with Johnny when you were 11? Not enforceable because kids can’t enter into contracts (other than for necessaries which won’t be discussed in this article). Lawful consideration/object In the UK, consideration is known as the “badge of enforceability” for contracts. It basically means that without consideration, a contract is not enforceable. On the bright side, things aren’t that stringent in Malaysia where consideration isn’t the be all, end all for contracts. Consideration basically happens when at the request of the party to the contract, you agree to do something or not do something for the contract. Considerations are then considered lawful if they don’t break any law, is not to do anything illegal, and so on. This means that if you hire a hitman to kill someone, the contract becomes is void because it is illegal to conspire to murder. Aside from the above, the law also looks at whether all parties to the pinky promise actually had the intention to create legal relations. Generally speaking, if you are in a social context, the law will presume that you didn’t have the necessary intention. This is the reverse in commercial situations where the law will presume that you had the necessary intention. However, the one thing you must keep in mind is... How difficult it is to prove a pinky promise If you think about it, pinky promises are nothing but verbal promises sealed with a lil twist of the pinky and since we’ve already told you that verbal contracts are enforceable...this means that pinky promises are too. However, they run into the same problems as verbal contracts do. Pinky promises will be difficult to prove in court because there is no proper evidence for you to submit to the judge about the terms that were agreed upon or that the promise even exists in the first place. Legally speaking, there is no one container of how a contract should look like. The law looks at whether the promise contains the above points and moves from there. However, given how hard it can be to prove that someone said something, our parents’ advice of always having things in black and white is a useful one to live by. Plus, certain contracts such as ones relating to land matters can only be in writing for it to be enforceable. For now, be ye equipped with new legalese, go forth and only make pinky promises with disclaimers. [READ MORE: Is it safe to write (or sign) your own contract in Malaysia?] [READ MORE: How to not fall off your page when reading a 50 page contract in Malaysia]"
"5 types of leave in Malaysia (and if you will be paid when you take them)  One of the best things about starting work is the joy that comes with earning money! So you get all excited about your new job, you check the employment contract that is handed to you for the salary amount, sign it and probably never look at it again. Here’s the thing... We all know that our employment contracts will show how much we are going to be paid, including during holidays, sick leave, the number of annual leave we are entitled to and so on, but did you know that sometimes, your employment contract may not reflect what the law provides? But first, lets quickly go through how an “employee” is defined by the law – in this case the Employment Act 1955. The Act outlines several criteria of an “employee”, but two important ones are: Anyone whose wages does not exceed RM2000 per month under a contract of service with an employer; or Any manual worker, regardless of monthly pay, entering into a contract of service with an employer, One thing to note is that the Employment Act 1955 only applies in Peninsular Malaysia and Labuan, whilst the employment practices in Sabah and Sarawak are governed by their respective labour ordinances. This article therefore only covers those who fall under the list of services in the First Schedule of the Employment Act, and are based in Peninsular Malaysia (and Labuan). So if your salary is over RM2,000, you may be thinking that you’re NOT covered under the Employment Act…..and you’re right. This discussion is worthy of another article of its own, but suffice to say, this is where you’ll need to look at your employment contract to make sure that the terms regarding leave are similar to if not better than what is provided in the Employment Act. Now let’s look at the leaves you as an employee in Malaysia would normally take and if you are also entitled to wages DURING these leaves, you know, while you’re making that epic road trip with your friends happen or while lying alone on the couch with a bowl of hot chicken soup and a runny nose! 1. Annual leave – Paid! As an employee, you are entitled to a certain number of PAID annual leave days in addition to your rest days and paid holidays! According to Section 60E(1) of the Employment Act 1955, you are entitled to paid annual leave as stated below: Employed less than 2 years: Not less than 8 days per year. Employed between 2-5 years: Not less than 12 days per year. Employed for more than 5 years: Not less than 16 days per year. So, you must have been working for at least 12 months with the same employer in order to become entitled to annual leaves. On the other hand, if you’ve just joined the company and thinking about leaving the employment before completing 12 months of continuous service, your number of leave days will be pro-rated according to the number of months you’ve been working with the company. Using the base 8 days as an example, it means you’ll get 0.66 days per month served. This means that if you are leaving the company after working for 6 months, you’ll be entitled to 4 days (0.66 x 6) of pro-rated annual leave. However, if you’re absent from work without your employer’s permission or a reasonable excuse for more than 10% of the working year, you’ll not be entitled to annual leave. Section 60E Employment Act 1955 (in part): “...where an employee absents himself from work without the permission of his employer and without reasonable excuse for more than ten per centum of the working days during the twelve months of continuous service in respect of which his entitlement to such leave accrues he shall not be entitled to such leave.” This leads us to everyone’s favorite “reasonable excuse” for missing work... 2. Sick leave – Paid! Being that even the best employees will fall sick from time to time, it wouldn’t make sense for you to be penalized for an illness. With an MC from a panel clinic (or other registered medical practitioners/officers if your company doesn’t have a panel clinic), you may be entitled to a certain number of paid sick leaves depending on how long you’ve been working for the company: Employed less than 2 years: 14 days per year. Employed between 2-5 years: 18 days per year. Employed for more than 5 years: 22 days per year. Section 60F(3) of the Employment Act 1955: ”The employer shall pay the employee his ordinary rate of pay for every day of such sick leave and an employee on a monthly rate of pay shall be deemed to have received his sick leave pay if he receives from his employer his monthly wages, without abatement in respect of the days on which he was on sick leave...” In addition, Section 60F(1)(bb) provides that you are entitled to 60 days of paid sick leave in total per calendar year if you need hospitalization. While getting an MC is a must, don’t forget to inform your employer that you won’t be showing up at work. If you fail to do this within 48 hours, you will be considered absent without permission or reasonable excuse – MC or not. 3. Public holidays – Paid! Section 60D(1) of the Employment Act 1955 tells you that, as an employee, you are entitled to paid holidays on eleven of the gazetted public holidays (which include the National Day, the birthday of Yang di-Pertuan Agong, and Worker’s Day) and any other day appointed as public holiday under Section 8 of the Holidays Act 1951 (yes, this is where our favourite celebration of victories in major sports events comes in). Section 8 of the Holidays Act 1951: The Minister may, by notification in the Gazette or in such other manner as he thinks fit, appoint, in respect of Peninsular Malaysia, or the Federal Territory or, after consultation with the State Authority, in respect of a State, a day to be observed as a public holiday or a bank holiday in addition to, or in substitution for, any of the days mentioned in the Schedules and thereupon this Act shall, in Peninsular Malaysia, or in the Federal Territory, or in the State in respect of which a day is appointed to be observed as a holiday as aforesaid, be applicable to such day in the same manner as if the said day had been mentioned in the First Schedule or the Second Schedule, as the case may be. Since some of the holidays under the 1951 Act may come as a surprise, some employers may be unable to observe them as public holidays due to operational requirements or urgencies. In this case, they can require employees to work on the public holiday and grant a different day as a paid public holiday in substitution. [READ MORE: Do I get extra pay if I work during a public holiday?] 4. Maternity leave – Paid! Under the Part IX (Maternity Protection) of the Employment Act 1955, every female employee is entitled to not less than 60 consecutive days of paid maternity leave if she has worked at least 90 days for her current employer within the 4 months leading up to her confinement period. During this period, the expecting mother is entitled to maternity allowance (which is basically her ordinary monthly salary) that must be paid no later than 7th day of the month. [READ MORE – Can Malaysian bosses fire you for being pregnant?] Even though the previous government announced an increase in maternity leave from 60 days to 90 days for the private sector – which puts it on par with the government sector – the Employment Act has yet to be changed to reflect this. This means that, for now, private sector employers can only be encouraged to provide 90 days of maternity leave as there won’t be a strict implementation of the new minimum period until the law is actually changed and brought into effect. 5. Absence due to imprisonment or court – Unpaid! We REALLY hope this doesn’t become applicable to you, but if you are absent from work because you’ve been arrested or required to attend a court proceeding, you may not be able to demand wages for the leave taken. According to Section 23 of the Employment Act 1955, “Wages shall not become payable to or recoverable by any employee from his employer for or on account of the term of any sentence of imprisonment undergone by him or for any period spent by him in custody...or for or on account of any period spent by him in going to, attending before or returning from a court otherwise than as a witness on his employer’s behalf.” This basically means, an employer will not have to pay the wages of an employee who is absent from work due to being imprisoned or because he/she is required to attend in court... unless if it is on behalf of the employer. Use it but don’t abuse it Although the Employment Act (in Peninsular Malaysia anyways) ensures that you’ll get paid for not working in many reasonable circumstances, you may also find yourself in trouble if you abuse some of these entitlements! But if you came back from a holiday (which you applied annual leave for) and find your pay docked, you might want to first start by discussing it with your employer - it could just be a misunderstanding. If that doesn’t work, you can take your problem to the Industrial Court. [READ MORE: What can you do if your boss refuses to pay you?] [READ MORE: What can you do if your boss fired you for no reason?]"
"There are no laws against party hopping in Malaysia. Here’s why If we mention the phrase, “party hoppers”, you might be confused but if we mention the word, “katak”, you would immediately associate it with Malaysian politics. The ‘frogs’ here refer to Members of Parliaments (MPs) or state legislative assemblymen who defect or quit their party after an election and subsequently either pledge themselves to another party. Party hopping has serious repercussions as it may deprive people from having the party they voted for in power. A recent case of this can be seen when a total of 36 members from UMNO Sabah announced their departure and allegiance to Parti Warisan Sabah, the current Sabah State government, and the recently elected Pakatan Harapan Federal Government. Our Prime Minister has made it clear that those who defected are welcome to join Pakatan Harapan provided they support the coalition and have clean records. But hang on...aren’t there any laws to prevent party hopping? Some states used to have anti-defection law You might be aware that our country has its own constitution which is known as the Federal Constitution of Malaysia. But do you know that every state in Malaysia also has its own constitution? Yes, they are known as State Constitutions and they serve as the highest law in their respective state. In fact, Article 71 of the Federal Constitution recognises and guarantees the State Constitutions. However, it also provides that any provision in the State Constitution must comply with the Federal Constitution. In other words, the Federal Constitution is more superior than the State Constitution. The Federal Constitution is the supreme law in Malaysia. We have found examples of two States which have passed State Constitutions that prevents party hopping. The first is Penang’s State Consitution which was proposed to be amended back in 2012 to include anti-hopping provisions. Clause 1 of the Bill provides that a state legislative assemblyman who has been elected as a candidate of a particular political party must vacate their seat if they quit the party, or is expelled from the party. Article XXXIA of the Kelantan Constitution (a copy of it is unfortunately not available online) also provides a similar provision where if any state assemblyman resigns or is expelled from their political party, they shall not continue to be a member of the State Legislative Assembly and they have to give up their seat. In short, this means that a re-election is required: “If any member of the Legislative Assembly who is a member of a political party resigns or is expelled from, or for any reasons whatsoever ceases to be a member of such political party, he shall cease to be a member of the Legislative and his seat shall become vacant.” With all these laws in place, why does party hopping still happen then? Some of you might notice that we mentioned that the states used to have these laws... They don’t anymore because they are unconstitutional In the case of Dewan Undangan Negeri Kelantan v Nordin Salleh [1992] 1 MLJ 697, the courts held that the anti-defection law under Article XXXIA of the Kelantan Constitution is unconstitutional because it contravened the freedom of association provided under Article 10(1)(c) of the Federal Constitution. Let’s take a look at what Article 10(1)(c) says: “Subject to Clauses (2), (3) and (4)...all citizens have the right to form associations.” While Article 10 provides Malaysians with the freedom to join or leave any association, this right, like all other rights, is not absolute. Article 10(2) and (3) empowers Parliament to pass restrictions on the freedom of association if it is for the interest of security, public order, morality, labour or education. Some of you may be confused now. If the Federal Constitution allows restrictions on the freedom of association, why did the courts rule that the anti-hopping provisions are unconstitutional? This is because even though the freedom of association can be restricted, this can only be done by the Parliament, and not the State Legislative Assembly. In short, only the Federal Parliament can pass the anti-hopping law by way of amending the Federal Constitution. The State Legislative Assembly has no power to pass such law. Where does this leave us? While we may have mixed feelings about party hopping, the law is pretty clear here. Only Parliament can enact anti-hopping laws, which can restrict our right to freedom of association. An ex-Federal Court judge, Datuk Seri Gopal Sri Ram opined that even an amendment to the Federal Constitution to enact anti-defection law will not succeed because the freedom of association is one of the fundamental freedoms under Part 2 of the Federal Constitution. This means that Parliament is not allowed to create any amendments which would have the effect of limiting any of the fundamental freedoms mentioned under Part 2. Theoretical arguments of the law aside, our Prime Minister has made it clear that no anti-hopping law will be passed but it appears that issue will be one that is always up for debates as veteran politician Lim Kit Siang has shown by campaigning for it 40 years ago."
"Can Malaysian banks help if you’ve transferred money to the wrong account? You’re on your usual online banking platform, managing your money as usual, making a few transfers. You’re so used to it, you’re on autopilot and just want to get it over with. But as you complete that last transaction, you find yourself staring blankly at the screen for a few moments. The realization slowly dawns upon you that you’ve just made a huge mistake. You made that last money transfer to the wrong account number… OH S**T… What can you do now…? You can’t exactly invalidate that transaction because: You don’t have a contract with that account holder which could protect your rights You transferred the money of your own free will A simple, yet endlessly frustrating situation. We don’t currently have the option to undo transactions with major banks, and by transferring that money, it’s no longer in your name, and therefore also out of your control. You have 2 options here: 1. Get your bank to help ask the account holder to return the money No one wants to lose their money to a silly mistake like keying in the wrong account number. Bank numbers aren’t given out sequentially, so you will almost never get someone else’s account if you mistyped one number. But if it actually happens, talk to your bank and get their help contacting the account holder. Unfortunately, you will need the account holder’s consent to reverse the transaction because technically speaking, it’s now under their name - the bank can’t simply force transfer it back if the money has reached their account. Now, you still rightfully own the money, which is highlighted in the next header, but the the bank doesn’t have the power to enforce this right for you for legal reasons. As for what you need to do, the procedures can vary from bank to bank, and you might need to lodge a police report depending on what needs to be done. CIMB bank in particular has advised customers before to get a police report for them to facilitate the correction. 2. Get a lawyer to help you retrieve the money If for one reason or another the previous method doesn’t work, you may have to get a lawyer’s help. You’ll be invoking an area of law called trust law. There’s a legal protection called a “constructive trust” that takes effect under a weird “separate but not really separate” area of law called equity. In very basic terms, the law recognizes that the legal ownership of the money may have passed to the person you mistakenly transferred to, but the beneficial ownership of the money still remains with you. Beneficial ownership is like the right to benefit from that thing you own, and it didn’t transfer because you didn’t intend for the other person to get your money. This beneficial ownership is the very reason why you have a right to reclaim your money in the first place. So while when you reclaim your money, the other account holder can freely consent, you still have a right to sue that person under constructive trust to get your money back. The thing is, suing someone is expensive to the point you’ll probably lose less money if you just let it go, so firstly, you only want to engage a lawyer if you’re having trouble getting the money back, and secondly, you’ll still want to get your lawyer to convince the other guy to settle privately before considering escalating to a full-blown lawsuit. Triple check when you’re transferring money! All this is really just extra trouble and as the saying goes: prevention is better than cure. It’s best to be extra careful when transferring money by checking the account number, the name that appears, and if you need to, use the verification methods provided by most banking platforms before confirming the transfer."
"Is it illegal to carry work equipment in your car in Malaysia? In a good number of jobs, you carry goods around as part of your work. This doesn’t necessarily only mean the transporting professions who ferry products across large distances, you might carry some tools and equipment in your car to make sure you can get things done, such as if you’re a videographer carrying camera and lighting equipment. Keep imagining being that videographer. You’re driving on the highway to your next shoot location, and you get stopped by the police. They inspect your car, find your equipment, and they SAMAN you! Wait what - why…?? You need a license to carry goods around in your vehicle You might be wondering at this point: “What on earth did I do wrong? What’s so illegal about carrying camera equipment around??” It’s not hanging out of your car or endangering other road users, so why did you get a summons? Well, there is nothing wrong with it - if you have a goods vehicle license. Remember the company address you see on the side of lorries and trucks, complete with a black imprint stating their weight limit like this? That’s something they get under the Commercial Vehicles Licensing Board Act 1987 (CVLBA), which requires them to get a license to transport goods around. This doesn’t just apply to trucks hauling loads of Yakult or furniture on board. It applies to anyone who is carrying around equipment as part of their profession as well, whether you’re driving a lorry, trailer, or a car. We’ve had this law for a long time, and here are the rules behind how exactly it works. There are 2 types of licenses for goods vehicles The two licenses are carrier’s license A and carrier’s license C. License A let’s you use the vehicle to carry goods for hire or reward (meaning you’re being paid for them) in connection with a trade or business where you are a carrier of goods. License C let’s you use the vehicle to carry your own goods for a trade or business of yours. You cannot use this license to deliver goods unless you sold them to someone and are delivering. In short, you need license A for a transportation lorry, and you need license C to carry your work equipment in your car regularly. You’ll also note that this definition also means you will not need to apply for a license if you are bringing home Ikea furniture, or even if you happen to be bringing a ladder over to a friend’s house to help them out - you only need a license to carry stuff in connection with a trade, profession, or business of yours. There are some exceptions which clarify that you won’t need a license for certain trade/business activities: Collecting or delivering goods that you bought, sold, used, or let on hire purchase Collecting or delivering goods which will undergo a process or treatment Carrying goods in a vehicle as a manufacturer, agent, or dealer to conduct product demonstrations Equipment that’s ordinarily carried around in a car (like a car wrench and jack) There are also some other exceptions you can find under Section 34 of the CVLBA, such as police cars, ambulances, funeral cars, and towing vehicles. You might need to record a few metrics to get your license renewed These licenses can last up to 7 years before you need to renew. You’ll want to apply for the renewal before the date of expiry or risk losing your license. And according to Section 21A of the CVLBA, you’ll also want to keep track of some metrics when using your goods vehicle as part of some documents required for the license renewal: Your audited financial statement A performance report of the previous year for The total number of passengers carried The total number of operation and revenue mileage The total actual number of trips the vehicle has made The estimated number of vehicles required for you to provide efficient service for a route Certain conditions can be attached to your goods vehicle license The CVLBA contains conditions for the licenses they grant (such as for public service vehicles as well), but we’ll only cover the ones for goods vehicles here. The Commercial Vehicle Licensing Board can grant you a license with any of the following conditions as they please: Your vehicle shall or shall not be used in specific areas, or between specific places, or at specific times Your license might only let you drive the vehicle in certain areas but not anywhere outside them You can only carry certain types of goods You shall or shall not carry goods for specific people Maximum delivery, loading/unloading charges you can impose The maximum weight of your vehicle Taking special precautions when you carry explosive, inflammable, poisonous, dangerous, or foul-smelling goods (durians maybe…?) You may also need to carry your goods vehicle licensing on board for verification at all times. You can get a goods vehicle license from SPAD If you’re an operator of any vehicle that would qualify as a “goods vehicle”, it’s best you go get your license pronto. A man carrying tools for his profession was stopped and issued a court summons on 21 November 2018 - he was taken by surprise as he didn’t know that the CVLBA even existed. But now that you’ve read this article, you won’t. The penalty for not having a goods vehicle license is stated under Section 34: between RM1,000 and RM10,000 in fine, and/or up to 1 year in prison. Currently, Malaysians can obtain a goods vehicle license from the Land Public Transport Commission (Suruhanjaya Pengangkutan Darat Awam) or simply, SPAD. They have a list of guidelines for license applications at their website here, though applications are only processed over their physical counters (here’s a list of their regional offices as well). But you may have read news that our Prime Minister Tun Dr Mahathir Mohamad has terminated SPAD, whose functions will be absorbed into the Road Transport Department (JPJ), so this structure will probably change in the near future (if it hasn’t already). In any case, their respective websites have not been updated to reflect any changes in the system. If you’ve gotten your goods vehicle license recently and the process was different from what we have here, do let us know so we can share the update."
"Why do companies need to tender bids for procurements in Malaysia? Some of you may have heard the word “tenders” being thrown around. Whether it is in a restaurant or in a formal business setting, you would probably recognise this word. Today, we’re going to be looking at tenders in a business setting (while eating tenders). To break it down for you, tenders are basically delicious chicken bites offers to carry out certain projects such as construction work or supplying raw materials that other businesses can bid on.The list is really endless because tenders can be submitted for any kind of projects. Broadly speaking, there are two types of tenders; government and private. If the list is endless, you must wonder how to get your hands on all those offers for tenders and bid on them. Well...ASKLEGAL actually has our own tender notification site. But before we get into that, we figure you’re here because you’re already interested in tenders, so why not help us out with a little survey? Loading... Before we dive into the laws and regulations covering tenders, let’s take a look at what’s the difference between government and private tenders? Plot twist – one is for the government We know what you’re probably thinking. The obvious difference is in the name itself. Government tenders get you government projects while private tenders get you projects from that particular company. Aside from this stark difference, there is also the fact that government tenders are subject to greater scrutiny given the fact that it involves taxpayers’ money and may attract waste, fraud, and corruption. We will look into these principles and standards in the next point. Private tenders are similarly subject to the overarching principles in the process of tendering but the companies themselves would be responsible for setting up the exact terms and regulations for tendering to them. This brings us to the question of… How does the tender process work? Widely speaking, the tender process varies from government and private, with different companies have different processes too. With this being said, the following is a breakdown of how it usually works: An advertisement to receive offers for the tenders is placed in newspapers or websites A specific deadline is given to submit your tender The tenders are evaluated The decision is announced Most of you old hats in the industry may know this like the back of your hand but the real question is… Are you aware that AskLegal actually curates and compiles all advertised tender notices? This saves you the hassle of purchasing multiple papers and flipping through it every morning. Our tender site is accessible here and you can sign up to receive notifications for tenders in your area of interest as well search for tenders. Another plus point, is that it also allows you to select which categories of tenders you would like to view. What laws come into play? There are a bunch of laws such as: Financial Procedure Act 1957 Government Contracts Act 1949 Treasury Directives and Circular Letters Federal Central Contract Circulars However, aside from these laws, there’s a second plot twist. The most important “law” in the tender process is not actually a law per se. It is known as the public procurement regulation. This regulation is basically a list of things to bear in mind while the government vets through the tenders that they accept. Several of these core principles are: Public accountability Transparency Value for money Open and fair competition Fair dealing All public bodies would be subject to this procurement regulation. For example, check out MCMC’s Procurement Code of Ethics Handbook. Now, private companies are not strictly subjected to the public procurement regulations but from what we can find, it seems that they practice this as well. For example, check out Sime Darby’s tender policies. As for the laws and circulars, while private companies are not directly affected by it, they would be bound indirectly if they choose to deal with the government. However, there is an additional piece of legislation that binds both public and private bodies indiscriminately. Bid rigging is a big no-no A huge problem with the tendering process is when bid rigging happens. Bid rigging is when the company offering the tendering bid colludes with a tenderer in order to give him the project. For example: Government Body A wants to build a new office. The officer in charge puts out advertisements looking for tenders. He gets many tenders from various companies. After looking through them, he calls his friend, the director of Company AZ. He tells his friend how to structure his tender in order to be the most attractive tenderer. Government Body A awards the contract to Company AZ as a result of this. Bid rigging is an offence for both public and private bodies under the Competition Act 2010. Specifically, section 4(3) of the Act says: “Without prejudice to the generality of subsection (1), a horizontal agreement between enterprises which has the object to...perform an act of bid rigging is deemed to have the object of significantly preventing, restricting, or distorting competition in any market for goods or services.” This means that Malaysia views bid rigging as something that would affect competition in Malaysia’s free market. Adherence to this is enforced by the Malaysian Competition Commission. Now that you have a general overview of which laws and regulations in Malaysia cover the tender process, you can put your best tender forward, so to speak. Plus, don’t forget that if you’re at a lost as to how to search for these tender advertisements, just sign up for our tender notification site and kick back."
"Thinking of suing someone in Malaysia? Consider sending them a Letter of Demand instead. Have you ever found yourself in a situation where: Someone damaged your property or badly injured you, and is refusing to pay compensation? Someone you gave a loan to isn’t paying you back? A client has not been paying up? Or... False rumours were spread about you, and they could end up permanently affecting your reputation? Depending on how cooperative they were, you may have already settled the matter with them. But if they haven’t been responsive (or worse, giving you a hard time), then you start having to consider the last resort - suing them in court for a long drawn lawsuit. You really don’t want to do that because it drains a lot of your time and money, not to mention the suspense of awaiting the outcome for months or even years. No need to fret, because you actually have another option before resorting to a full blown legal proceeding. It can be a “DIY” solution, but may not work in all situations, and you may need a lawyer’s backing if the other party isn’t taking you seriously. You can send them a Letter of Demand (LoD) A Letter of Demand is usually sent as a formal request for the recipient to meet some demands, like to pay money that is owed, or to rectify a wrong that was committed - this will be your debts owed, breaches of contract, defamatory statements, etc. Although we can technically send LoDs by ourselves, we usually do this through our lawyers because well, let’s just say that the threat of legal action is a powerful persuasive tool. [READ MORE - How does defamation work in Malaysia?] Sometimes, you need to send an LoD as a requirement before suing someone. For example, if you’ve made a friendly loan to a friend without specifying a repayment date, you need to send an LoD stating that the loan is now due (but you don’t have to if you’ve agreed upon the repayment date beforehand). [READ MORE - If someone borrows money and doesn't pay you back, you can file a ""small claim procedure""] But speaking in practical terms, the main reason you want to send a Letter of Demand before considering legal action is to give the other guy a last chance to resolve the matter privately. People generally prefer to avoid litigation since it takes a toll on body, mind, and bank account alike. What’s more, in cases where lies have been spread to damage your reputation, you’re not really looking for financial compensation, but an apology and for them to retract their statement and “heal” your reputation. Sending that LoD is infinitely better in this case. So all in all, you’re really sending the LoD for your own sake as well. The backup plan with your LoD is to use it as evidence in court that you’ve attempted to settle the issue outside of court, but for one reason or another, the other party has refused to comply. This can actually strengthen your case if the matter comes to a court battle - so even in the worst case scenario, sending that LoD will help your position. You might be wondering if you can avoid paying legal fees for the Letter of Demand, especially if your case is too small to spend big bucks on, but also too big to ignore. Well, you might want to know that... You don’t always need a lawyer to send an LoD Sending an LoD can sound like solemn official business that involves sending a formal letter that’s properly formatted (and it is), but it isn’t too complicated to execute by yourself. You can probably get by writing your own LoD for smaller claims, like simple debts to be paid up and small defamation cases, but keep the option of engaging a lawyer open as you may not know what to include for more complex claims. The thing you need to keep in mind is that an LoD you send by yourself obviously carries less weight than if you got a lawyer to do it, and you may also not fully understand how strong your claim is (so you also may not know what you can or should demand). If the other party does not take your LoD seriously, getting a lawyer to back your words up can do wonders. Here’s a rough idea of what you should include in a Letter of Demand: Your identity, your lawyer and their law firm (if you have one) The contact details of yourself or your lawyer (so the recipient can acknowledge your letter and perhaps even comply) A summary of your claim and the facts behind what led to it A list of payments and/or actions you demand of the recipient A reasonable deadline for the recipient to comply with your demands Make a clear, unambiguous statement of actions you will take if the recipient does not comply (like filing a lawsuit) Copies of bills, invoices, financial statements, and any other documents that will prove and back up your claims (DO NOT send the originals!) Other general tips are to keep your letter polite, make sure your points are clear and precise, and only to make threats you are prepared to follow through on. Make a copy of your letter before sending it out, and please, please don’t harass the recipient even if you are in the right as you can sabotage your own case with that. Okay, you might feel that it’s good to know how to send an LoD, but maybe you’re a little concerned about what if the reverse happens and you receive an LoD instead. What should you do then? Whatever you do, don’t ignore a Letter of Demand Some of us may think that if the sender can’t follow through on their Letter of Demand (or even if the allegations towards us are untrue), it should be safe to ignore the letter, right? You’d best not! The law on this matter is pretty clear thanks to the case of Small Medium Enterprise Development Bank Malaysia v Lim Woon Katt that happened in August 2016. The Court of Appeal in the case decided that failing to respond to a Letter of Demand will weaken your case if it goes to court. To be fair, not responding to an LoD is not automatically an admission of fault, but ignoring it can cost you when the court is deciding whose version of events is more credible. If you’ve been wrongfully accused in an LoD, you can and should send a prompt denial to defend yourself, especially if it involves commercial transactions. In any case, what you should do after receiving a Letter of Demand can be summarized in the following steps: Keep and make copies of the LoD Clarify anything unclear and ask for further details from the sender a) Get a lawyer and dispute the claim OR b) Comply with the letter’s demands OR c) Negotiate the terms of a gentler settlement on a “without prejudice” basis Negotiating on a “without prejudice” basis basically allows you to negotiate the settlement without making an admission of fault - which will help preserve your right to defend yourself if the case still ends up in court later on. Having a lawyer’s advice here can help a lot. Remember - a settlement is better than a court battle If you ever have to send a Letter of Demand, keep an open mind towards negotiations from the recipient. You may not like them very much and you may not even be on speaking terms, but a settlement deal is always going to be better than dragging out the matter in court Even if you’re offered a lower compensation than you wanted, it can be advisable to accept it if it’s still reasonable - you probably end up losing less than if you went through with a lawsuit anyway. The point of the Letter of Demand is to make sure you get compensated and the situation is rectified, and not to escalate things unless absolutely necessary."
"Malaysian Majlis Bandarayas can now enforce traffic laws. Here’s what you need to know Malaysia actually has some pretty good laws, like the relatively new animal welfare law, and progressive consumer protection laws. The problem many Malaysians have with our system is the lack of enforcement, especially when it came to how GST was implemented (you probably still have the wrong idea of how it works). Good news, it looks like we’re taking a step forward in this regard for our traffic laws, with amendments to the Road Transport Act 1987 (RTA) on 11 December 2018. You can find the list of amendments on a list of laws Parliament will debate (or have already debated) here. Generally speaking, they’re stepping up how our traffic laws can be enforced. Here’s what you need to know about the changes. 1. Local councils can now appoint their own traffic wardens With the amount of traffic issues going around in the country, the traffic police probably can’t keep up by themselves. So our government is getting the local councils (better known as dewan bandaraya or majlis perbandaran) to enforce traffic laws too. They passed an amendment to Section 3(4B) of the RTA that reads: “The Mayor of a City Council, the President of a Municipal Council or the Chairman of a Municipal Council may appoint such number of persons in the service of the City Council or the Municipal Council as he considers necessary or expedient for the purposes of this Act to be traffic wardens and may, after consultation with the Inspector General of Police, prescribe uniforms for such officers.”. - emphasis added This means that local councils across the country can each have their own team of traffic wardens to enforce traffic laws. There’s a restriction added to Section 4 as well, stating that the local councils shall not enforce traffic laws outside their own area - so Kuala Lumpur’s traffic wardens aren’t allowed to enforce traffic in Petaling Jaya, and so on. Their uniforms have yet to be determined, which may or may not be similar to those of our current traffic police. 2. They can also deregister and tow away abandoned vehicles Previously, the RTA specified that vehicles could only be deregistered if they fell under these conditions: “...not worthy of repair due to serious accidents, old age or other causes or where the chassis number thereof has been tampered with;” The new amendments now give local councils the power under Section 65 of the RTA to move any vehicles that obstruct, endanger, or inconvenience road users. They’re allowed to either order the owner to move it, or tow it themselves to a more suitable place. This includes the 60,000 abandoned vehicles nationwide that have been lying all over cities with the local council unable to do anything about them. A specific procedure to first deregister abandoned vehicles will be put into place, which will give local councils the authority to deal with them, but will also make sure that the vehicles’ will not be physically disposed, but still have their registrations tied up in the Road Transport Department’s database. 3. Tinted glass above the legal limit will be charged a fee instead of being illegal Yes, we now have to completely rewrite our old article about tinted glass laws. What used to be outright illegal will probably be changed to be regulated by the Road Transport Department, where tinting above the legal limit will require approval, and be subject to a fee. At least you won’t get hauled to court or jail over dark windows anymore…? To allow for people with medical conditions, there will also be an exception for people who need darker tinted windows (like those with cataracts). One more thing… A little mentioned amendment to Section 120 of the RTA also removes the discretion of traffic enforcement departments to compound offences - which means they may no longer have the power to just ask you to pay a fine, instead of issuing you a court summons. To issue a fine instead, the traffic enforcers must first get the consent of the Public Prosecutor (currently still also known as the Attorney General) in writing. [READ MORE - What does the Attorney General of Malaysia do?] A fine you can just go pay for, but a court summons is something you’ll have to attend a court session for where you will be brought in front of a judge to answer for your heinous crime traffic offence. Expect to have to take leave on the court appearance date, and possibly hire a lawyer to help you with a mitigation plea (to get a lighter sentence), or at least get you a fair penalty. Failing to appear can have dire consequences like getting a warrant for your arrest issued by the judge. [READ MORE - What is the difference between a summons and a warrant in Malaysia?]"
"Does the PDRM use police line-ups... like in TV shows? If you enjoy good crime movies or dramas, you’ve probably come across a scene of a police line up. You know, where the police gets a bunch of similar looking suspects to stand in a line, and they ask a witness to point out the person who committed the crime. In fact, this whole police line up thing was a such big part of crime based movies that an award winning movie called the Usual Suspects used it as their movie poster. With police line-ups being such a huge part of American police dramas, you may end up thinking that it’s purely an American practice. But here’s the thing – the PDRM also uses police line ups to help them solve crimes, but with two major differences. The first is that over in Malaysia, it’s known as an ‘identification parade’. The second difference there are real-life consequences when a witness identifies the wrong person. This is why the police (and our criminal justice system as a whole) is wayyyyyy more careful with how they handle line-ups and will only resort to it if... They’re unsure of the criminal’s identity Sometimes the PDRM faces problems when investigating a crime, and a common problem is when they’re unsure of the criminal’s identity. They may arrest someone based on physical descriptions given by witnesses but, in order to make sure that they have the right person, they may call the witness(es) back to identify the suspect via a line up/identification parade. But if you were ever to be called in as a witness, you might be wondering what would happen if you identified the wrong person? Good news is that there are several safeguards in place. Police procedures might change with time and circumstances but, according to guidelines discussed in a recent research journal (published in 2018), the police have to ensure that: there are at least 10 suspects in the line up, and they must look similar to each other you must be asked if you have any objections to the suspects in the line up the whole line up process must be as objective for you as possible they can’t show you photographs or give you any verbal/written descriptions before the line up and you MAY have to touch the person you think is the suspect This is to ensure that you make a decision based entirely from your own recollection and not from external influences. But even when all these steps are taken, it’s still possible to point out the wrong suspect. So, another safeguard is put in place: Judges are VERY careful when using identification evidence Before a judge decides whether someone is guilty or not, he will have to look at all evidence. If he’s gonna put someone in jail, he has to be absolutely certain the person committed the crime. Basically, if the judge thinks “I’m very sure he did the crime, there’s no other explanation”, then he may go on to give a guilty verdict. But, if he has doubts, like “It’s possible he did it, but then again...”, he must let the person go free. Sometimes, in a criminal case, the majority (or even entirety) of the case can hinge on a witness’s line up identification. As we mentioned earlier, this can be problem because the wrong person can be pointed out. To prevent such a mishap from happening, the courts in England and Wales addressed the problem in an appeal case called R v Turnbull (1976). We won’t go into the details of the case, but what happened was that the defendants (those accused of the crime) claimed that the witness was mistaken when pointing them out in an identity parade. The questions raised in this trial led to a set of guidelines for such situations known as the Turnbull warning. So now, if a judge is presented with a case where most of the evidence is from a police line up he has to do the following: Warn himself to be cautious when deciding the case Be aware of why he needs a warning (eg a witness can be mistaken) Examine the circumstances of how the identification was made If the quality of the identification is good he can use the evidence to decide whether to convict or not If the quality is bad, he may have to disregard the evidence These things are not just done within the judge’s mind like a mantra, he also has to mention it in his judgement (if not, no one would know if he followed the guidelines). But just to be absolutely sure that the wrong person doesn’t go to jail, there’s a THIRD safeguard in place... You can appeal if you think the process was flawed There’s this one local case called Jaafar bin Ali v PP, where the accused (Jaafar) was found guilty of attempted murder, mainly based on witnesses identifying him from a police line up. However, it was later shown that the process was flawed because the police showed witnesses pictures of Jaafar beforehand. But even when this was brought up, the judge went on to find Jaafar guilty of attempted murder. Jaafar’s lawyers then appealed the decision to the High Court, arguing that the previous judge convicted Jaafar despite the flawed identification process. In other words, they were arguing that the judge didn’t follow the Turnbull principles. The High Court agreed, and set Jaafar free. [READ MORE: Why does Malaysia have different courts and what do they do?] So unlike what you see on TV, actual mechanisms have been put in place to ensure a police line up happens properly in the real world… and not just in Malaysia. The police have their set of procedures to follow, the courts have their principles of caution, and if those two don’t work out – there’s always an appeal to a higher court."
"Tabung Haji dilanda masalah. Apa akan terjadi kepada wang deposit anda? [Artikel asal dalam Bahasa Inggeris. Click here for English version] Sejak beberapa minggu kebelakangan ini kedudukan Tabung Haji semakin tidak menentu. Laporan demi laporan (berita) menyerlahkan masalah kewangan mereka, di mana ianya merupakan satu isu besar kerana mereka menguruskan dana milik rata-rata 9.3 juta Muslim Malaysia. Rumusan masalah mereka adalah berikut: Salah guna dana Melanggar peraturan akaun sendiri Mengisytiharkan dividen secara tidak sah Kemudian tersebar pula berita bahawa pada 30hb November 2018, Lembaga Tabung Haji telah membuat dua laporan polis terhadap bekas pihak pengurusannya atas dakwaan salah guna dana di bawah Yayasan Tabung Haji, dan salah perwakilan yang dibuat berkenaan penjualan pegangan Tabung Haji ke atas PT TH Indo Plantations. Tidak lama selepas itu, laporan Straits Times pula mendakwa bahawa Tabung Haji memalsukan akaun untuk mewajarkan pembayaran dividen (hibah) sebanyak RM2.7 juta pada Februari 2018. Tetapi semua yang berlaku sekarang bukannya permulaan kepada masalah dalam Tabung Haji. Pada tahun 2015, Bank Negara telah mengirim surat kepada Tabung Haji, menyatakan bahawa Tabung Haji perlu menguruskan risiko mereka dengan lebih baik kerana ia memiliki lebih liabiliti dari harta. Ringkasnya, mereka berhutang wang lebih dari yang dimiliki. Situasi pada tahun 2015 tidaklah begitu tenat, di mana Tabung Haji ketika itu memiliki harta bernilai 98 sen untuk setiap liabiliti bernilai RM1. Namun..... Prestasi Tabung Haji menjadi semakin teruk ketika ini Bank Negara tidak mengawal selia Tabung Haji, jadi semua amaran yang diberi tidak diendahkan oleh Tabung Haji. Setakat 5hb Disember 2018, dianggarkan bahawa Tabung Haji hanya memiliki 80 sen harta untuk setiap RM1 hutang mereka. Ini bermakna jika setiap Muslim ingin mendapatkan kembali wang mereka dari Tabung Haji hari ini, mereka hanya akan mendapat 80 sen untuk setiap RM1 yang dilabur – jadi mereka akan kehilangan 20% wang simpanan mereka. [BACAAN LANJUT – 3 cara Bank Negara mengawal ekonomi yang mungkin kita tidak pernah ketahui] Kebanyakan rakyat Malaysia sekurang-kurangnya mengiktiraf Tabung Haji sebagai satu dana yang membantu rakyat Muslim tempatan untuk menyimpan wang bagi membantu mereka mengerjakan umrah ke Makkah (Haji), di mana ianya adalah satu rukun penting yang harus dikerjakan oleh setiap umat Muslim sekurang-kurangnya sekali dalam jangka hayat mereka. Jadi persoalannya di sini adalah apakah Tabung Haji sepatutnya lakukan dengan semua wang ini, dan adakah kedudukan kewangan mereka sekarang boleh membenarkan rakyat Malaysia Muslim mengerjakan ibadah Haji mereka, lebih-lebih lagi jika dipertimbangkan bahawa tempoh menunggu adalah lebih kurang 89 tahun pada tahun 2017. Mari kita lihat apa kata undang-undang mengenai operasi Tabung Haji. Lembaga Tabung Haji merupakan satu syarikat Menurut undang-undang, Lembaga Tabung Haji (Lembaga) adalah sebuah badan korporat (syarikat) yang ditubuhkan di bawah Akta Tabung Haji 1995. Aktiviti mereka terbahagi kepada tiga cabang utama, iaitu pengurusan Haji, pengurusan simpanan dan pelaburan. Lembaga boleh menerima simpanan dari mana-mana Muslim yang mempunyai kerakyatan dan bermastautin di Malaysia, dan simpanan ini harus dibuat atas dua sebab sahaja, iaitu: Simpanan untuk tujuan mengerjakan ibadah Haji Simpanan untuk pelaburan atau semua urusan lain yang dibenarkan oleh Lembaga Dana ini tidak hanya terdiri dari simpanan dari rakyat Malaysia Muslim (keuntungan tidak boleh diperoleh melalui simpanan), tetapi terdiri juga dari: Bantuan, derma, hadiah dan sumbangan kepada Lembaga Wang yang diperoleh dari pelaburan dan pinjaman Wang yang diperoleh dari projek, agensi, skim dan perniagaan yang dibuat melalui Tabung Haji Hartanah, pelaburan dan pelbagai jenis sumber pendapatan yang dimiliki oleh Lembaga Di bawah undang-undang, Lembaga hanya boleh menggunakan dana ini untuk tujuan: Membayar penyimpan yang ingin mengeluarkan simpanan mereka Membayar balik pinjaman dan perbelanjaan Membayar tenaga kerja mereka Semua perbelanjaan yang melibatkan pengurusan dana dan pelaksanaan pelaburan Memberi pinjaman dan wang pendahuluan kepada pegawai dan pekerja Lembaga seperti mana yang dibenarkan oleh undang-undang Ada juga tuduhan dibuat di mana sebanyak RM22 juta dari dana di bawah Yayasan Tabung Haji disalurkan kepada aktiviti yang berunsurkan politik, dan jika ianya benar, ini tidak dibenarkan. Tetapi harus kita beri perhati di sini – kebanyakan rakyat Muslim yang menyimpan wang dari hasil titik peluh mereka tidak menyedari akan masalah kewangan Tabung Haji kerana sejak tahun 2012, Tabung Haji membayar dividen yang berterusan kepada mereka. Tetapi apa masalahnya jika dividen diberi kepada mereka? Lembaga boleh membayar dividen....hanya jika mereka memiliki dana yang secukupnya Seksyen 22 Akta Tabung Haji menyatakan bilakah Lembaga Tabung Haji boleh mengumumkan dividen untuk penabung. Ia menyatakan bahawa Lembaga, atas budi bicara mereka, boleh mengumumkan dividen; di mana ianya akan diluluskan oleh Menteri yang bertanggungjawab ke atas Tabung Haji. Tetapi sebelum itu, Lembaga harus mematuhi 3 syarat: Harta dana mesti tidak boleh kurang dari jumlah hutang. Perkiraan ini dibuat dengan anggapan bahawa wang penyimpan mesti dipulangkan dengan serta merta Lembaga harus memiliki dan menyelenggarakan Dana Rizab Dana Rizab mesti memiliki wang yang bersamaan atau lebih dari jumlah wang penyimpan + dividen yang diumumkan (Dana Rizab ≥ Wang Penyimpan +Dividen) Jika kita teliti apa yang kita faham setakat ini, nampaknya ada sesuatu yang tidak betul berlaku kepada akaun Tabung Haji, kerana mereka mengalami kerugian wang. Pada masa itu juga, terdapat beberapa masalah pengendalian perakaunan yang timbul dari laporan audit mereka. Laporan Ketua Audit Negara juga mendapati bahawa Tabung Haji mengubah peraturan perakaunan mereka setiap tahun, termasuk mengubahnya sebanyak dua kali pada tahun 2017. Dalam pada itu, kita hanya boleh tunggu dan lihat apakah sebab ini semua berlaku selepas siasatan yang dilakukan sekarang selesai. Persoalan besar sekarang adalah – apa akan berlaku kepada wang anda dalam Tabung Haji jika senario terburuk berlaku dan adakah ianya akan memberi kesan kepada peluang anda untuk menunaikan ibadah Haji? Dana Tabung Haji dijamin oleh Kerajaan Jika anda ada membuat simpanan dalam Tabung Haji, jangan bimbang kerana Seksyan 24 Akta Tabung Haji menyatakan bahawa jika Tabung Haji tidak dapat membuat bayaran untuk pengeluaran anda, kerajaan akan memberi pinjaman kepada Tabung Haji untuk membayar anda. Walaupun ianya satu berita baik, Tan Sri Zeti Akhtar Aziz membuat kenyataan bahawa “jaminan kerajaan” akan mempengaruhi kewangan kerajaan. Dan, jika anda bertanya-tanya dari manakan kebanyakan wang diperoleh, maka jawapannya adalah: dari pembayar cukai. Namun begitu, masih ada harapan lagi untuk Tabung Haji. Satu rancangan perubahan telah dibentangkan oleh pengurusan baru Tabung Haji dan ini termasuk mengasingkan pengurusan Haji daripada pengeluaran simpanan, supaya pengeluaran simpanan boleh diselenggarakan oleh Bank Negara. Di samping itu, penubuhan Special Purpose Vehicle pula akan mengambil alih pelaburan yang tidak menunjukkan prestasi baik dan akan memulihkannya dalam beberapa tahun ini."
"Malaysian law sometimes allows you to kill your attackers in self-defence - but when? You may have heard of incidents where people have gotten their homes broken into, and they killed the intruder, but are arrested, and maybe even sentenced to jail for murder. Such was the case where a lot of netizens came to the defence of a Zulkifli Ismail, cafeteria owner who had supposedly defended his property from two robbers, killing one of them in the process. Why is that, huh? But the truth got stranger after investigations and fact finding - it turns out the two “robbers” in Zulkifli Ismail’s case were just scrap metal hunters who were unarmed, and Zulkifli actually snuck up behind them with a machete, slashed one, and stabbed the other, before chasing them over 70 metres. Witnesses also testified that they saw the deceased scrap hunter raise his hands and plead for Zulkifli to stop hurting him, but was ignored. It didn’t help Zulkifli’s case either that he lied about injuring the two scrap hunters by accident, because the investigations showed the victims’ stab wounds were inflicted on purpose. While your first impression might have been that Malaysia has weird laws which side the criminals, there’s a pretty good reason why our laws limit the right to self-defence. Okay, we didn’t use a good example because Zulkifli took things too far, and the scrap metal hunters were not exactly robbing him (even though they might have trespassed onto private property) - but how should we Malaysians conduct ourselves if we have the misfortune to have our homes broken into? What if the only way to fend off an attacker is to kill him? We often joke about inviting the robbers to tea and letting them have anything they want, but in reality, our laws actually provide situations where you’re allowed to go as far as kill the person threatening you - if necessary. We have a right to self-defence, but it’s not absolute Our right to self-defence comes from Section 96 of the Penal Code, which states that anything you do in self-defence will not be considered a crime - which is where our belief that we can legally harm a robber comes from. But we can’t exactly go around abusing the rule by calling everything we do “self-defence”. Robbing a bank and saying you’re “defending yourself from poverty” will probably not stand as a good excuse. We’ve covered the details of how our self-defence laws work in a previous article, which we’ve linked below. We recommend reading it before you continue with this article to get a full picture. If you’re looking for a more practical guide, check out our piece on how you can protect yourself from burglars in Malaysia. [READ MORE - Why do some Malaysians get arrested for killing robbers in self defense?] [READ MORE - How to protect your home from burglars in Malaysia] Returning to the topic of killing in self-defence, different rules apply for when you’re defending people, and when you’re defending property, as we’ll highlight below. Killing your attackers is justifiable if you’re avoiding death or serious injury Your right to self-defence goes as far as causing the death of your attacker if one of the following scenarios happen: 1. You’re defending against an assault that will probably kill you The rule here is that if an attack that puts you in reasonable fear that getting hit by it would cause death. The complex definition there is important because you must have good reason to think the attack was going to be a deathblow. So for example, if you were paranoid and thought someone who tapped you on the shoulder was a murderer - you don’t have the right to self-defence here; but if a robber came at you with a fake knife, you can still defend yourself if you mistook the knife as a real one. 2. You’re defending against an assault that will probably cause “grievous hurt” “Grievous hurt” has a specific meaning under Section 320 of the Penal Code. Basically, it covers injuries which could affect you permanently, or could take a long time to heal. 3. The attacker has the intention of committing rape, is acting upon “unnatural lust” (meaning things like sodomy or oral sex), or intends to kidnap or abduct someone These are pretty straightforward, but these crimes may carry more specific criteria under the Penal Code which you can refer to here. For example, the definition of “rape” in Malaysia is worded so that a woman cannot “rape”, and a man cannot be “raped”. 4. Someone is going to be trapped in a way where they can’t contact the police This one covers the nightmare scenario of being brought to an unknown location and locked up, tied up so you can’t escape or call the authorities. *** Keep in mind that these scenarios are only situations where it’s acceptable if was absolutely necessary for you to go that far, and you should keep the restrictions on self-defence we’ve mentioned above in mind. If you ever have to raise these defences in a criminal court, note that as the person raising the fact that you were acting in self-defence, you have to produce evidence to prove one of the above criteria (to prevent abuses where a person can kill another then play victim). As for property, these are the rules… When you’re defending your property, your right to self-defence extends to causing the death of the attacker when: 1. It’s a robbery A “robbery” happens according to law when someone steals something while causing or threatening death or injury. We’ve covered the difference between a robbery and a theft in a previous article. 2. They broke into a house at night The crime here is called “housebreaking” which involves breaking into a house through a passage not normally used by people (like through the roof), or through a locked passage (like breaking the locks on the door). 3. They’re committing arson on a building where people live, or where property is being kept Malaysia doesn’t actually record the crime of “arson”, but it comes under the category of “mischief”, which means causing wrongful loss to a person through destroying property, or reducing its value or usefulness. The legal term for “arson” here is “mischief by fire”. 4. Property is being stolen, damaged, or broken into such that it will cause death or grievous hurt This is a really broad law but an extreme example of this is if robbers break into a building with guns, threatening to shoot everyone. This isn’t a free pass to kill thieves and robbers At the risk of sounding like a broken record, we have to stress the point that killing your attacker should only be a last resort when you absolutely have to do so. The law does not permit us to simply kill any intruder. They could simply be lost, and maybe even mentally unsound. The law imposes these kinds of limits to make sure it is not open to abuse where people can invite others to their home, and then kill them off, claiming that person “broke in”. In situations where you may find a need to defend yourself, how much force is reasonable to use for self-defence really depends on the situation, if you can call the police or call for help, it’s probably better instead of confronting the perpetrator and getting involved in an unnecessary, risky scuffle where you could get seriously hurt."
"DBKL wants all nightclubs to close at 1am...but can they? The last thing that you want on a Friday night out is having the bartender shout “WE’RE CLOSING!”. But wait a minute, it’s only 1am and you were just getting into the party mode! This is probably the scenario that everyone was worried about when they announced that entertainment outlets in Kuala Lumpur would have to close by 1am starting 2019. Before you start worrying about planning post-1am house parties next year, you can take a chill pill first. Federal Territories Minister Khalid Samad explained throughly what the announcement actually entails. He said that not all bars and clubs will be closing at 1am. He pointed out the fact that some entertainment outlets only have a licence to operate until 1am, but they remain open way past that hour. So yeah, they’d just be enforcing those licensing terms. But then this begs the question, is it only limited to clubs in KL? And aren’t clubs supposed to open till super late anyways? They can regulate closing hours for clubs and bars Well, closing hours for entertainment outlets are usually enforced on a state by state basis by the respective local authorities. However since the closing hours for Kuala Lumpur went viral recently, we’ll be focusing on KL for this article. But first it’s important to know that in Malaysia and most countries, a government/local authority can’t simply order individuals/business do anything. If they want to do so, they must be given power to do so by the law. Similarly when ordering entertainment outlets to close at a certain time, they can only give such directions if the law allows it. The Customs Department and DBKL work hand-in-hand with regards to enforcement of the sale of alcohol and operations at entertainment outlets.To get a better understanding of how it works, we got in touch with an officer from DBKL who told us the following: “The customs department decides the closing hours of these outlets and DBKL enforces these closing hours” – A DBKL officer over a telephone conversation with ASKLEGAL So the law that gives legal power to Customs in deciding the closing hours comes from the Excise (Sale of Intoxicating Liquors) Regulations 1977 (unfortunately, not available on a public domain), and they provide 3 different types of licenses with different closing hours. The first license is called... A First Class Public House Licence If you’re wondering what a public house is, it’s commonly known as a pub. Legally, according to Section 35 of the Excise Act, a public house is any outlet that sells liquors or beers to be consumed in the premises. What DBKL told us is that this is the only liquor license that’s being given out at the moment, and these outlets are usually given operating hours until 12am. Second Class Public House and Third Class Public House License To find out what’s the difference between a First Class Public House License and these ones, we found a document from the Kuala Langat Local Authority which defines a 2nd class and 3rd class Public House as coffee shops. So it’s basically kopitiams which don’t just sell coffee and beer, but liquors like whiskeys and brandys. However during our conversation with DBKL, they told us that licences for these type of public houses aren’t given anymore. But for reference sake, these establishments have to close between the hours of 9pm and 10pm. Wanna remain open longer? Get an entertainment licence Yes DBKL did say that the latest closing hour is 12am, but some of these places have applied for an extension as an entertainment outlet. That’s why they are given extra hours to operate, but of course it’s illegal to stay open past these hours. So yeah, as we’ve mentioned before not all entertainment outlets will be closing at 1am. Only the ones with licence to open until 1am will have to close. So yeah, if there’s a little party left in you, all you probably need to do is head out to an outlet with a later closing hour in their licence. And if you suddenly see DBKL rushing into your favourite club to enforce the closing hours, don’t worry it’s not an offence for you to be in the club. Also if you’ve been drinking, remember to do so responsibly and don’t get behind the wheel."
"Tabung Haji is in trouble. What happens to the savings of 9 million Malaysian Muslims? [Klik sini untuk versi Bahasa Malaysia] The past few weeks have not been great for Tabung Haji. News report after news report came out highlighting their troubled finances, which are a big deal because they manage the money of about 9.3 million Malaysian Muslims. The summary of their troubles is this: Misuse of fund money Breaking their own accounting rules Illegally declaring dividends News came out about Lembaga Tabung Haji lodging two police reports against its former management on 30 November 2018 over misuse of fund money under Yayasan Tabung Haji, and misrepresentations made regarding the sale of Tabung Haji’s stake in PT TH Indo Plantations. Not long after that, a Straits Times report alleged that Tabung Haji faked its accounts to justify paying RM2.7 billion in dividends (hibah) in February 2018. But these incidences weren’t the beginning of Tabung Haji’s troubles - in 2015, Bank Negara sent Tabung Haji a letter saying that Tabung Haji needs to manage its risk better because it had more liabilities than assets. In plainspeak, this means that they owe more money than they have. The situation in 2015 wasn’t as bad, with Tabung Haji having 98 cents of assets for every RM1 in liabilities. However... Tabung Haji is doing much worse today Bank Negara does not regulate Tabung Haji, so unfortunately, their warning was ignored. As of 5 December 2018, it’s estimated that Tabung Haji only owns 80 cents for every RM1 they owe. This means that if every Muslim wanted their money back from Tabung Haji today, they’d only get 80 cents for every RM1 they had put in - so they’d all lose 20% of their savings. [READ MORE - 3 ways Bank Negara controls our economy that you probably haven't heard of] Most Malaysians would, at the very least, recognize Tabung Haji as a fund that helps local Muslims save up to perform their pilgrimage to Mecca (Hajj), which is an important event that all Muslims must do at least once in their lifetime. So the question now is, what is Tabung Haji actually supposed to do with all this money, and whether their current financial situation will still allow Malaysian Muslims to perform the Hajj, considering that the estimated waiting period is 89 years in 2017. Let’s look at what the law says about how Tabung Haji operates. Lembaga Tabung Haji is a company The Lembaga Tabung Haji (Lembaga) is what the law calls a body corporate (basically a company), that is set up under the Tabung Haji Act 1995. Their activities are broken down into 3 main areas - Hajj management, deposit handling, and investment. The Lembaga can receive deposits from any Muslim who is a citizen and is living in Malaysia, and those deposits shall be for two reasons only: Savings towards taking a pilgrimage to Mecca Savings for investment or any other purposes permitted by the Lembaga The funds doesn’t only contain deposits from Malaysian Muslims (the money couldn’t grow otherwise), but also includes: Grants, donations, gifts, contributions towards the Lembaga Money earned through investments and from loans Money earned from any project, agency, scheme, or business set up through the Tabung Haji Property, investment, and all sorts of income that the Lembaga owns By law, the Lembaga is only allowed to use the funds for: Paying depositors who want to withdraw their funds Repaying their loans and expenses Paying their workforce Any expenses in managing the fund and carrying out investments Granting loans and advances to officers and servants of the Lembaga as permitted by law There were allegations that RM22 million of funds under Yayasan Tabung Haji had been directed towards politically-inclined activities, which if true, is not allowed. But here’s the thing - many Muslims who’ve been depositing their hard-earned money into Tabung Haji may have been completely unaware of Tabung Haji’s financial situation because Tabung Haji has been paying a steady dividend to their depositors since 2012. But what’s so wrong about paying dividends? The Lembaga can only pay dividends...if it has enough money The laws for when Lembaga Tabung Haji can declare dividends to their depositors is under Section 22 of the Tabung Haji Act. What is says is the Lembaga can declare dividends at their discretion, which will be approved by the Minister in charge of Tabung Haji. But before doing that, the Lembaga must fulfill 3 conditions: The assets of the fund must not be lower than its total debt. This calculation is done under assumption that depositors’ money must be returned to them right away. The Lembaga must have a Reserve Fund maintained The Reserve Fund must have money equal to or more than the total depositors’ money + declared dividend (Reserve Fund ≥ Depositors’ Money + Dividend) If we strictly follow what we know so far, it looks like something is up with Tabung Haji’s accounts, since they are clearly losing money. There were also problems revealed in their auditor’s report with their accounting practices. Our Auditor General’s report found that Tabung Haji had been modifying its own accounting rules every single year, and even changed it twice in 2017. We’ll need to wait for the outcome of investigations to know exactly what’s up. Now for the big question - what happens to your money in Tabung Haji if the worst case happens and will it affect your chance of going for Hajj? Tabung Haji’s funds are guaranteed by the Government If you have money with Tabung Haji, fear not, because Section 24 of the Tabung Haji Act says that if Tabung Haji can’t pay you for your withdrawals, the government will lend money from the Consolidated Fund to Tabung Haji to pay you. Section 24(1) of the Tabung Haji Act 1995 “If any expenditure of the Lembaga in relation to withdrawals by depositors cannot be met out of the Fund or the Reserve Fund it shall be charged on and payable out of the Consolidated Fund.” While it’s great that Tabung Haji depositors won’t risk losing their savings, Tan Sri Zeti Akhtar Aziz had brought up that this “government guarantee” would affect the government’s finances. And where does the government get most of its money from? Taxpayers. The guarantee doesn’t solve any problems for Tabung Haji, because they would owe a ton of money to the government for a while. But there’s hope on the horizon. Tabung Haji’s new management has a turnaround plan for the fund which includes separating the Hajj management operation from deposit-taking so that the deposits can be regulated by Bank Negara. There will also be a Special Purpose Vehicle set up to take over Tabung Haji’s underperforming investments and improve them over a few years."
"Can Malaysian condo managements block your access card if you don't pay your fees? You’re really excited; the family and friends are all here for the housewarming in your brand new house. As you usher them into the lobby, you stride confidently to the lifts and tap your card. “BEEP” Funny, it rejected your card. Must be a system error. You try again and… “BEEP” As you feel your temper rise, your friend suddenly laughs and asks if that is your name and unit on...a list of defaulters. You rush over and realise that your name is up on the list of people who have failed to pay the management charges. You sheepishly realise that you did forget to pay your charges but they have no right to deactivate your access card...right? Actually, they are allowed to do that Before we delve into why and how they are allowed to do that, let’s take a couple steps backwards and look at what you’re supposed to pay to your condominium’s management committee. Generally speaking, there are a few charges that would become due and payable to the management: Sinking fund – basically a fund that is used for big projects to maintain the property like repainting the building Maintenance fund – basically a fund for small and constant projects like cleaning the pool [READ MORE: Living in a Malaysian apartment – who is responsible if things get broken?] Section 12(5) of the Strata Management Act 2013 (“SMA 2013”) provides that as purchasers of the house, you would have to pay the management within 14 days of receiving the notice from them and if you fail to do so, then the Strata Management (Maintenance and Management) Regulations 2015 (“SMR 2015”) defines you as a defaulter. Regulation 6 SMR “a defaulter is a proprietor who has not fully paid the Charges or contribution to the sinking fund in respect of his parcel or any other money imposed by or due and payable to the management corporation under the Act at the expiry of the period of fourteen days of receiving a notice from the management corporation.” Now, as a defaulter, the Regulation allows the management to take certain steps against you and this can include your family members or anyone you rent the property out to. In summary, this is what the management can do: Prepare and display a list of defaulters together with their unit numbers and amount owed Deactivate your access card without prior notice and charge you maximum RM50 to reactivate the card Require you to sign in to the building if your card is deactivated Suspend your use of the common property, including any car park lots that have been assigned to you Under Regulation 6(2), the management is also allowed to charge you interest on the amount you owe them, starting from the end of the 14 days and extending until the date you pay up, at 10% per annum or any rate that the management decides on: “If any sums remain unpaid by the proprietor at the expiry of the period of fourteen days...the proprietor shall pay interest at the rate of ten percent per annum on a daily basis or at such rate as shall be determined by the management...until the date of actual payment of the sum due.” At this point of time, you may be despairing because you owe them a lot and they can do all these things which can make life a tad...unpleasant. However, you don’t have to fret too much because… The law allows instalment payments Regulation 6(6) of the SMR allows the management to enter into instalment agreements with you to allow you to settle outstanding debts. These agreements would be on the terms that the management would deem fit. For example, it may be a term of the agreement that if you pay your instalments diligently, the management will not deactivate your access card. Suffice to say, it’s not the end of the road to not be able to pay your management charges. However, it would be best to take the honest approach and deal with the management on an upfront basis if you have any problems in paying them. [READ MORE: Can the condo management in Malaysia really enter my unit and take my property?]"
"Malaysians are the fattest in Asia. And this survey will tell you why. A few years ago, news came out that Malaysians were the fattest people in Asia. So couple weeks back, the chubby chonks at Cilisos ran their first ever ‘Jaga Diri’ survey where they asked Malaysians just how fit they were. This survey made its rounds over to the Asklegal office, which got our attention since we’ve always tried to be more fit ourselves (law is a heavy subject!) With thanks to our friends at Fitness First, the results are in! Before we run you through the findings, here are some preliminary info: Survey period: 3rd Sept – 18 Sept 2018 Total respondents: 3,779 Top 5 locations: Selangor (40.2%), KL (25.6%), Penang (7.5%), Sarawak (5.2%) and Johor (4.1%)… but there were respondents from each state Top 3 relationship status: Single (58.8%), in a relationship (21.6%), and married without kids (6.5%) Top 3 age groups: 21-29 year olds (40.7%), 30 -39 year olds (23.2%), 18-20 year olds (14.2%)… but we had respondents from all age groups even 60 and above. Gender breakdown: Male (52.6%), female (46.7%), others (0.7%) Ok ready? Lift (off)! 1. 17.5% of men sign up at fitness centres to… look at hotties! Well actually, girls do it as well! Just not as many (6.1%)... or perhaps guys are just more forward about their, uhm, intentions. Funny thing is, it could even be a motivation… because our survey showed that the No. 1 goal of Malaysians when they work out, regardless whether guy or girl, is to look lean and slim. If you’re there to oogle, err… just do it discreetly. Most importantly, DON’T HARASS THEM! “Creepy people hitting on me” was one of the top 10 annoyances of Malaysians who go to fitness centres. Anyway, don’t worry too much about these fellas cos they’re only the minority! Why? Because… 2. … most men go for the equipment (72.1%) while women go for the classes (52.4%). From our data, it pretty much seems like Malaysian men prefer doing things on their own, like using dumbbells or cable machines… while women prefer someone else guiding them or participating in group fitness classes. In fact, more women (24.3%) than men (10%) said that they prefer having a personal trainer to guide them! If you didn’t know already, Fitness First is pretty much the expert in all of these. They have the largest number of personal trainers and group exercise instructors, and 1,500 different classes a week so you can choose one that suits your need at any time. If you prefer doing your own thing, they also have a wide range of equipment, including those with newer technology and weird names like SkillMill, Torque Tank, SkiErg – more than enough for you to click here to know more. Anyway, that’s pretty much it for what men and women like. But what about annoyances? The top pet peeve for women is seeing sweat-drenched equipment (38.2%), while men said it’s people leaving equipment lying around (57.8%). Disregarding gender, the top 3 biggest annoyances in fitness centres are… People who leave weights/equipment lying around (46.2%), Equipment hoggers (39.8%) People who spend more time on their phones than working out (38.5%)! 3. Taking the lift to Level 3? Better make sure nobody is around to see you… Everyone has their own little threshold of the number of stairs they’re willing to walk up instead of taking the lift. We should know… Asklegal is on the 5th floor! On the survey though, most of our respondents (33.3%) said 3 flights of stairs! So if you’re going to level 1 or 2, maybe it would be a better idea to just walk. Even though most of you ALREADY know that it’s a good habit to walk up the stairs, here’s some additonal motivation - Fitness First personal trainer, Wai San says that you can burn up to 15 calories by walking up ONE flight of stairs. Considering 1 pisang goreng is about 117 calories, maybe it wouldn’t be a bad idea to take the stairs more often just to offset some of that 4. Can you do more than 18 FULL pushups? Congrats, that’s more than the average Malaysian Going into the specifics, we also found that the average number of full pushups for men is 25, and 11 for women. Now push-ups are not just to impress people… they’re actually really good for many muscle groups, so even if you don’t have the time or space for a full workout, it wouldn’t hurt to do push-ups when you wake up or before you sleep. But trainer Wai San warns that a lot of us don’t actually know the proper technique for a pushup. The chances of you getting injured increases if you have bad form, and skyrockets if you add more weight. If possible, just ask an expert or take advantage of the many resources available online on how to do it right. 5. The older you are, the MORE motivated you are to exercise Respondents who said that “nothing is an obstacle for them to exercise” were mostly those above 50 years old (52.2%). There were only 13.8% respondents who were 17 or younger. Overall our data also showed that older folk exercise to FEEL good, while younger folk exercise to LOOK good. In fact, the younger you are, the more goal-oriented you are. Younger people have more challenge-driven goals in life, like running marathons, triathlons and overcoming personal fears. Older people mainly exercise so they don’t need to depend on others to help them. That’s also probably why our survey showed that they REALLY jaga diri baik -baik…. all these uncle-aunties-ahpoh-ahkongs typically do more stretches, eat more supplements, eat more vegetables, and eat less fatty foods. And it shows! Fitness First personal trainer Zec Lau said that he knows of a 65-year-old old-timer who could bench press 50kg, while the Asklegal staff only know how to approach the bench. #lawjoke 6. 97.1% of Malaysians said that they NEED veggies in their food! Surprisingly, an overwhelming majority of our respondents told us that they NEED to eat vegetables! 54.9% of them said that they need it in EVERY meal, 27.7% said at least once a day, and 14.5% said few times a week. The other 2.9% just found veggies gross and crossed them out of their diet. Perhaps they’ve decided that high moral fibre was enough. On another note, can you guess what are some of Malaysia’s favourite tea-time snacks? The top 3 are: Biscuits (43.9%), fruits (30.7%), and… ……… LEKOR! KUIH! GORENG PISANG! Local delicacies la basically. (21.9%) This is an Asklegal and Cilisos favourite, since we keep running into them at the pisang goreng stall. Thankfully, most of us feel some sort of guilt if we eat a lot of unhealthy food. Majority (36%) would exercise and eat something healthy the next few meals, while 10.1% would exercise to punish themselves and 13.5% would make sure their next meals are healthier. Trainer Zec suggests: “Drink more water, increase your fibre intake and exercise more. The key here is to keep your metabolism running.” And we’re pretty sure he doesn’t mean moral fibre. 7. Hmm…. Not sure why but more Chinese-speakers (19.1%) wanna be big and muscular Abang Sados! Despite the fact that popular term ‘Abang Sado’ is in BM, we found that it was actually the least popular among our BM-speaking respondents (7.8%)! Overall, we found that being bulky and muscular isn’t the No. 1 goal on everyone’s minds… it’s looking lean and slim. While that’s not a bad thing, there are actually a number of misconceptions surrounding building muscles. “Many women think that building muscles will make them look like a muscular man. Men, on the other hand, only focus on upper body instead of lower body,” Trainer Wai San tells us. Muscles aren’t for vanity… it actually for HEALTH. “Building muscle is really important because the muscles help hold your bones to support your body better,” she adds. 8. 24.2% of women actually consider shopping as… exercise?! If you’ve ever thought that walking around shopping malls for 4 hours is a form of exercise, well, you’re not alone. In fact, 15.9% of men also agree with this! Say what you will, but a study in the UK found that British women burn as much as 15,000 calories yearly by shopping. Unfortunately, a lot of it goes to waste because 33% of them snack while they shop. Go figure. On a somewhat-related note, more women (39.63%) also felt that house chores were a form of exercise compared to men (24.32%). A clean house and glistening biceps? Not a bad deal actually. 9. Wanna live like rich people? Have more healthy habits in life. So we looked through the differences between higher-income earners (monthly household income of RM15k and above) and lower-income earners (RM3k and below) and here’s what we found. More higher-income earners seem to practice healthy habits – they meditate more, take more supplements, eat clean, drink at least 8 cups of water, and eat their meals on time. That’s probably why more of them consider themselves to be either ‘very healthy’ or ‘healthy’ compared to those who don’t earn as much. Oh, unsurprisingly, they’re also the ones who track their fitness levels with a tracker. We also found that they’re generally more independent than lower-income earners, as more of them can work out without gym buddies. But here’s the thing... you don’t need to be rich to be healthy. You just gotta cultivate healthy habits in your life, and be motivated enough to STICK to them. Research says that it takes 21 days to form a new habit… so before 2018 comes to a close, why not pick up a good habit? (Good ones like doing daily push-ups, sleeping earlier and making wiser choices with your food) 10. Malaysians have all sorts of funny excuses NOT to exercise First off… can you guess the top 3 reasons to why Malaysians don’t exercise? *drum rolls* No motivation! Lazy! (51.32%) No time (40.92%) No teman to exercise with them (33.98%) When we pried further, we also found that there were some other p-r-e-t-t-y interesting responses: Besides some funny ones, it was kinda sad to read comments about being judged and feeling shy… but you know what, often times it’s just in our own heads. A lot of people who go to fitness centres – yes, even the good-looking ones – are more conscious of THEMSELVES rather than the people around them. Working out ultimately benefits yourself, so why deny yourself that opportunity to live a healthier life just because of what others may think? But if you ever needed the help to get fitter, now’s the time Everyone has ‘that moment’ when they realise that a change is needed in their lives. But sometimes, like in the point above, our own insecurities, fear, disadvantages, situations or habits make it almost impossible for us to progress. That’s precisely what our friends at Fitness First want to help you with. If fitness is part of your 2019 New Year’s resolution, Fitness First has a first joiner’s promotion where new sign-ups will enjoy a start-up fee of RM 0. Yup, you read that right – it’s a ZERO. The promotion only runs till December 31st 2018, so why not arrange a free trial to test them out for yourself? Check it out here!"
"5 butiran berkenaan ICERD yang dipertikaikan oleh rakyat Malaysia [Artikel asal dalam Bahasa Inggeris. Click here for English version] Sejak kebelakangan ini, topik yang hangat diperbincangkan oleh seluruh lapisan masyarakat negara kita adalah ICERD – International Convention on the Elimination of All Forms if Racial Discrimination (Konvensyen Antarabangsa Penghapusan Diskriminasi Kaum). Ringkasnya, ICERD adalah konvensyen (atau persetujuan) oleh Pertubuhan Bangsa-Bangsa Bersatu yang bertujuan untuk memupuk kesetaraan kaum di segenap lapisan masyarakat antarabangsa, namun apa yang berlaku di sini adalah sebaliknya kerana kebanyakan ahli politik dan rakyat Malaysia berbahas sama ada Malaysia harus menandatanganinya atau tidak. Komen-komen di artikel tempatan mungkin dapat memberi gambaran kepada anda tentang sokongan atau bantahan terhadap ICERD, tetapi rumusan yang terbaik berkenaan ini adalah mengenai status Artikel 153 Perlembagaan Persekutuan dan status Islam sebagai agama rasmi Malaysia. Satu petisyen yang menentang ICERD di Change.org menggariskan beberapa kemungkinan yang didakwa akan berlaku jika Malaysia menandatanganinya: Ini disusuli pula dengan laporan berita yang mengatakan bahawa Perdana Menteri Tun Mahathir memberi kenyataan bahawa perlaksanaan ICERD di Malaysia adalah mustahil, rancangan untuk mengadakan perhimpunan anti-ICERD di Kuala Lumpur pada 8hb Disember, dan berita-berita lain yang boleh mengelirukan pihak yang tidak arif akan usul ini. Jadii, kami akan cuba menerangkan topik ini dari asasnya, bermula dengan – apakah itu ICERD, dan apakah tujuan rasminya. [BACAAN LANJUT: Bagaimana untuk menganjurkan perhimpunan yang sah di Malaysia] TERKINI: Pada 23hb November, kerajaan mengumumkan bahawa ia tidak akan meratifikasikan ICERD. 1. Undang-undang diperkenalkan atau diubah Seperti yang dibincangkan sebelum ini, ICERD merupakan perjanjian antarabangsa; ia menyediakan rangka kerja yang terdiri dari syarat yang harus dipatuhi negara yang telah menandatanganinya. Ini bermakna peruntukan (“undang-undang” dalam ICERD) hanya sah di Malaysia selepas kerajaan menandatangani dan meratifikasikannya – ‘ratifikasi’ bermaksud menjadikannya sah dan diiktiraf secara rasmi. Selepas satu-satu negara menandatanganinya, mereka kemudian harus mengkaji semula undang-undang dan dasar yang sedia ada untuk memenuhi keperluan ICERD di mana seperti yang dicadangkan melalui namanya, bertujuan untuk menghapuskan diskriminasi kaum. Artikel 2(1)(c) Konvensyen Antarabangsa Penghapusan Diskriminasi Kaum (tiada terjemahan asal, terjemahan oleh Asklegal) Setiap negara ahli harus mengambil langkan berkesan untuk mengkaji semula dasar kerajaan, nasional dan tempatan, dan mengubah, membatalkan atau memansuhkan mana-mana undang-undang dan peraturan yang memberi kesan dalam membentuk atau mengekalkan diskriminasi kaum di mana sahaja ianya wujud; Tanggungjawab utama negara-negara yang telah menandatanganinya (dirujuk sebagai State Party (Negara Ahli) dalam dokumen tersebut) boleh didapati di dalam Artikel 2 ICERD, di mana rumusannya adalah seperti di bawah: Tidak menyokong atau mempertahankan diskriminasi mana-mana individu atau kumpulan Mengubah atau membatalkan undang-undang sedia ada yang mewujudkan atau menyokong diskriminasi kaum Memupuk atau mencadangkan langkah-langkah yang membawa kepada penyatuan kaum Mengambil langkah khas untuk membangunkan atau/dan melindungi kaum tertentu dengan tujuan memberi kesetaraan kepada mereka. Sebagai contoh, selepas Australia meratifikasikan ICERD pada tahun 1975, Parlimen Australia meluluskan Akta Diskriminasi Kaum untuk menepati kewajipan baru ini. 2. Semua rakyat akan mendapat hak pendidikan yang setara (dan perkara-perkara lain) Sebahagian daripada langkah menghentikan diskriminasi kaum adalah setiam orang diberi jaminan hak yang setara. Ini bermakna beberapa hak “asas” mesti diberi kepada semua rakyat dengan setara Artikel 5 Konvensyen Antarabangsa Penghapusan Diskriminasi Kaum (dalam bahagian – tiada terjemahan asal, terjemahan oleh Asklegal): Untuk mematuhi kewajipan asas seperti yang termaktub dalam Artikel 2 Konvensyen, Negara Ahli harus mengharamkan dan menghapuskan semua bentuk diskriminasi kaum dan menjamin hak yang sama kepada semua orang, tanpa mengira kaum, warna kulit, kewarganegaraan atau etnik asal, dengan kesetaraan di bawah undang-undang, terutamanya dalam menikmati hak-hak berikut… Artikel 5 seterusnya menggariskan hak-hak berikut, termasuk 5(d)(vii) – Hak untuk berfikir, bersuara hati dan agama 5(d)(v) – Hak untuk memiliki hartanah dan semua yang berkaitan dengannya 5(e)(v) – Hak untuk mendapatkan pendidikan dan latihan Ini juga mungkin merupakan usul utama yang menjadi perbahasan hangat tentang keputusan Malaysia dalam isu ICERD. 3. Ungkapan kebencian (hate speech) akan disenaraikan sebagai satu jenayah Ungkapan kebencian (hate speech) secara umumnya adalah ucapan atau kenyataan yang menyerang seseorang kerana mereka berbeza dari segi kaum, agama etnik atau faktor lain. Bagi ICERD, ungkapan kebencian terikat dalam konteks kaum. Jadi selain dari menggalakkan negara ahli untuk menghapuskan undang-undang yang mendiskriminasikan kaum, negara ahli ICERD juga perlu membentuk atau mengamalkan undang-undang yang menyenaraikan pengarangan, penyampaian dan dukungan ungkapan kebencian sebagai satu jenayah. Artikel 4(a) Konvensyen Antarabangsa Penghapusan Diskriminasi Kaum (tiada terjemahan asal, terjemahan oleh Asklegal) Harus mengisytiharkan bahawa semua jenis idea berasaskan keagungan dan kebencian kaum, hasutan terhadap diskriminasi kaum dan semua jenis keganasan dan hasutan terhadap semua kumpulan kaum atau kumpulan perseorangan dari warna kulit atau etnik, atau bantuan yang diberi kepada semua jenis aktiviti yang berasaskan perkauman, termasuk dari segi kewangan, sebagai satu kesalahan di bawah undang-undang; Ini juga termasuk mengatur dan menyertai kumpulan atau perhimpunan yang menggalakkan perkauman, di mana ianya dianggap sebagai melanggar undang-undang. Namun sesetengah negara menghadapi masalah apabila berdepan dengan pilihan di antara kebebasan bersuara dan pengharaman ungkapan kebencian. Sebagai contoh, apabila mahkamah di Norway mendakwa seorang individu Neo-Nazi atas kesalahan ucapan berbaur perkauman terhadap masyarakat Yahudi atas sebab kebebasan bersuara – ianya diputuskan bahawa tindakan ini bertentangan dari peruntukan ICERD. Tetapi persoalannya, siapakah yang memantau ICERD? Jawapannya.… 4. Satu badan bebas memastikan bahawa negara ahli mematuhi ICERD Yang in boleh buat otak anda bengkak sedikit. Perlaksanaan ICERD dipantau oleh Jawatankuasa Penghapusan Diskriminasi Kaum (Committee on the Elimination of Racial Discrimination) atau lebih dikenali sebagai....CERD. Ya betul, ICERD dipantau oleh CERD #samatapitaksama. Ringkasnya, CERD terdiri dari kumpulan pakar bebas yang memantau perlaksanaan dasar oleh negara ahli dan menyemak aduan yang dibuat oleh individu dan kumpulan terhadap negara mereka. Artikel 8 Konvensyen Antarabangsa Penghapusan Diskriminasi Kaum (dalam bahagian – tiada terjemahan asal, terjemahan oleh Asklegal): Satu Jawatankuasa Penghapusan Diskriminasi Kaum (dirujuk sebagai Jawatankuasa) yang terdiri dari lapan belas pakar yang bermoral tinggi dan diiktiraf akan dibentuk melalui pengundian yang adil oleh Negara Ahli dari rakyat negara mereka.… Negara ahli perlu memberi laporan kepada CERD setahun selepas menandatangani perjanjian, dan sekali setiap dua tahun atau jika diminta. Jika anda ada membaca pautan Akta Diskriminasi Kaum Australia di butiran 1 di atas, ia sebenanya merupakan laporan bagaimana pihak berkuasa Australia “akhirnya bersetuju untuk memberi kerjasama” dan mematuhi CERD terhadap kelewatan mereka memberi laporan dan beberapa kekurangan dalam perlaksanaan ICERD mereka; di mana ini termasuk beberapa perunduran dalam Akta Diskriminasi Kaum dan kekurangan lain dalam kesetaraan kaum. Baca di sini. Jika sesetengah kumpulan atau individu merasakan bahawa hak mereka dilanggar atau tidak diutarakan dengan betul oleh kerajaan mereka (atau pihak berkuasa), mereka juga boleh membuat rayuan kepada CERD – tetapi ini hanya boleh dilakukan sekiranya mereka sudah ketandusan semua jalan penyelesaian yang lain. Jika kita mengimbas kembali butiran 3 di atas berkenaan kes ungkapan kebencian di Norway, masyarakat Yahudi yang terlibat hanya mengutarakan kes mereka kepada CERD setelah kes berkenaan dirujuk sehingga ke Mahkamah Tinggi Norway, di mana mahkamah tersebut tidak memihak kepada mereka. Jadi apakah akibatnya jika CERD mendapati ada berlakunya pelanggaran? Amnya, CERD akan mengeluarkan laporan menggariskan sebab mereka dan akan memberi cadangan untuk memperbaiki keadaan. Namun dalam sesetengah kes seperti kes pertelagahan di antara dua negara yang tidak dapat mencari jalan penyelesaian, maka Mahkamah Keadilan Antarabangsa (International Court of Justice) akan terlibat (Artikel 22) dan mereka akan mempertimbangkan laporan CERD dalam penentuan kes. Jika anda berminat, bacaan lanjut boleh didapati di sini. Negara yang menandatangani perjanjian ICERD amnya akan diletakkan di bawah pantauan dan piawai yang lebih tinggi, di mana ia akan memberi kesan terhadap beberapa objektif antarabangsa seperti keahlian agensi PBB atau majlis/badan. Sebagai contoh, Amnesty International mencadangkan persetujuan Australia untuk memenuhi CERD berkait rapat dengan penyertaan negara tersebut ke dalam Majlis Hak Asasi Manusia Pertubuhan Bangsa-Bangsa Bersatu (UNHCR). 5. Negara ahli tidak perlu mematuhi ICERD 100% Walaupun secara logiknya mana-mana negara yang menandatangani perjanjian ICERD dikehendaki mematuhi semua dasarnya, namun ianya tidak benar. Perjanjian ini membenarkan kelonggaran kepada negara ahli untuk menyatakan sebab yang mengelakkan mereka dari memenuhi semua dasar ICERD, dengan syarat sebab-sebab ini mematuhi objektif ICERD. Kesemua sebab ini digariskan di bawah Koleksi Pakatan Bangsa-Bangsa Bersatu, seperti contoh: Amerika Syarikat – Membenarkan “ungkapan kebencian” sebagai sebahagian hak Perlembagaan untuk bersuara (Freedom of Speech) Emiriah Arab Bersatu – “Penglibatan Emiriah Arab Bersatu dalam Konvensyen ini tidak sama sekali melibatkan apa bentuk usaha untuk membentuk atau mengiktiraf hubungan dan pakatan dengan Israel” (ungkapan asal diterjemah dari Bahasa Inggeris) Thailand – Tidak terikat untuk menterjemahkan atau menggunakan dasar ICERD diluar peruntukan undang-undang dan Perlembagaan Thailand. Dalam konteks tempatan, Badan Guaman Malaysia menerangkan bahawa Artikel 1(4) memperuntukkan “langkah khas” untuk sesetengah kumpulan supaya mereka diberi bantuan tambahan atas sebab memberikan peluang yang setara kepada mereka. Namun begitu, ini harus dihentikan sekiranya objektif tersebut tercapai: Artikel 1(4) Konvensyen Antarabangsa Penghapusan Diskriminasi Kaum (tiada terjemahan asal, terjemahan oleh Asklegal): Langkah khas harus diberi atas sebab memberi peluang setara kepada sesetengah golongan kaum atau kumpulan etnik atau individu yang memerlukan bantuan ini untuk memastikan bahawa kumpulan atau individu ini dapat menikmati atau melaksanakan hak asasi manusia yang setara dan kebebasan asas ini tidak akan dilihat sebagai diskriminasi kaum; dengan syarat langkah-langkah ini tidak akan, sebagai akibat, membawa kepada penyelenggaraan hak yang berlainan kepada kumpulan kaum yang lain dan langkah khas ini juga harus dimansuhkan selepas objektif tercapai. Ini seterusnya disebut lagi dalam Artikel 2(2) (dalam bahagian – tiada terjemahan asal, terjemahan oleh Asklegal): Negara Ahli akan, dalam keadaan yang membenarkannya, mengambil langkah khas, dari segi sosial, ekonomi, kebudayaan dan lain-lain bidang, untuk memastikan kemajuan dan bantuan yang cukup kepada kumpulan kaum dan individu yang berkaitan dengannya, dengan tujuan menjamin hak dan nikmat hak asasi manusia dan kebebasan asas yang setara... Namun begitu, kita masih belum pasti sama ada ini akan memainkan peranan dalam kehendak pihak yang menentang ICERD kerana.… Masih belum jelas jika Malaysia akan mengamalkan ICERD Sebenarnya ini bukan kali pertama ICERD menjadi tumpuan kerajaan, kerana kerajaan pimpinan BN sebelum ini pernah memberi pertimbangan terhadapnya, dua kali iaitu pada tahun 2011 dan 2015. Dengan adanya hujah dari semua pihak, masih belum pasti lagi jika Malaysia akan meninggalkan senarai 14 negara yang belum lagi menandatangani pakatan ini. TERKINI: Walaupun Kerajaan Malaysia telah pun mengumumkan bahawa ia tidak akan meratifikasikan, Perhimpunan Anti-ICERD masih lagi dijalankan Jika anda ingin tahu lebih lanjut tentang kesahihan Perhimpunan Anti-ICERD, bacalah artikel mengenai perhimpunan di sini."
"Macam mana nak mengadakan ""rally"" berdasarkan undang-undang Malaysia? This article was translated from English. For the English version, please click here. Warga-warga Malaysia memang kenal sangat dengan hal-hal berkenaan demonstrasi, protes, perhimpunan, rally, dan sebagainya sejak kebelakangan ini. Dari perhimpunan BERSIH ke perhimpunan anti-ICERD yang menjelang, warga-warga Malaysia telah berhimpun di jalanan ibu kota kita. Di samping itu, anda mungkin telah membaca berita di mana pihak berkuasa telah memberi kebenaran untuk perhimpunan anti-ICERD diadakan pada hujung minggu ini. Isu ini membawa kita ke soalan yang amat penting – macam mana nak anjurkan rally yang berdasarkan undang-undang dan apa faktor-faktor yang akan diambil kira oleh pihak berkuasa sebelum mereka memberi kebenaran mereka? Sebelum kita jawab soalan tersebut, jom kita lihat apa maksud “rally”. Ia macam perhimpunan besar Kalau kita merujuk Cambridge Dictionary, perkataan “rally” ini membawa maksud public meeting of a large group of people, especially supporters of a particular opinion. Kalau diterjemahkan kepada Bahasa Malaysia, ia bermaksud mesyuarat awam dengan kumpulan yang besar, terutamanya penyokong-penyokong kepada sesuatu pendapat. Mengikut definisi ini, ia bermaksud bahawa kecuali keluarga anda mempunyai beratus-ratus orang, masa berjumpa bila balik kampung tu, bukan dianggap rally. Hak untuk berhimpun diberi kepada warga Malaysia melalui Artikel 10 Perlembagaan Persekutuan: “Tertakluk kepada Fasal (2), (3) dan (4)...semua warganegara berhak untuk berhimpun secara aman dan tanpa senjata...” Kepada pembaca AskLegal yang setia, pasti anda dah sedia tahu bahawa hanya kerana suatu hak diberi, tidak menjadikannya mutlak. Oleh sebab itu, Malaysia mempunyai satu lagi akta yang mentadbir macam mana perhimpunan boleh diadakan di Malaysia. Akta ini dikenali sebagai Akta Perhimpunan Aman 2012 (“APA 2012”). Seksyen 3 memberi kita definisi yang lebih mendalam kepada perkataan “perhimpunan”: “”perhimpunan” ertinya suatu perhimpunan sesuatu bilangan orang yang disengajakan dan sementara di sesuatu tempat awam, sama ada atau tidak perhimpunan itu diadakan di suatu tempat tertentu atau bergerak” Dengan ini, kita sudah maklum dengan definisi perhimpunan, jom kita lihat pula apa langkah-langkah yang perlu diambil untuk menganjurkan perhimpunan di Malaysia. Notifikasi kepada pihak berkuasa wajib diberi Di bawah seksyen 9 APA 2012, pihak penganjur sebarang perhimpunan wajib memberi notifikasi tentang perhimpunan tersebut kepada Pegawai yang Menjaga Daerah Polis (“PDP”) sepuluh hari sebelum perhimpunan itu hendak diadakan. Walau bagaimanapun, terdapat sesetengah jenis perhimpunan yang tidak wajib dinotifikasikan kepada PDP dan ianya terdiri daripada: perhimpunan yang diadakan di tempat perhimpunan yang ditetapkan melalui Gazette oleh Menteri Hal Ehwal Dalam Negeri perhimpunan keagamaan perhimpunan pengebumian majlis perkahwinan rumah terbuka semasa perayaan pertemuan keluarga hari keluarga yang dianjurkan pihak majikan mesyuarat tahunan pertubuhan/persatuan Ketika artikel ini ditulis, kami tidak dapat mencari mana-mana tempat perhimpunan yang telah diwartakan oleh Menteri. Oleh itu, nampaknya, sebagai peraturan umum, setiap perhimpunan memerlukan pemberitahuan kepada pihak PDRM. Satu perkara yang wajib dinotakan ialah seksyen 9 hanya memerlukan pemberitahuan kepada pihak PDRM dan seksyen ini tidak memberi kuasa kepada PDP untuk membenarkan atau tidak membenarkan sebarang perhimpunan. Ini bermaksud semua yang diperlukan untuk suatu perhimpunan diadakan ialah untuk memberi pemberitahuan kepada pihak PDRM dan bukan meminta izin. Tambahan pula, seksyen 14 menyatakan bahawa pihak PDRM perlu memberi respons mereka kepada sebarang pemberitahuan dalam tempoh lima hari dan kalau mereka gagal memberi respons, maka perhimpunan yang anda ingin anjurkan boleh diadakan sepertimana yang dicadangkan. Seksyen 14(2) APA: “Jika Pegawai yang Menjaga Pegawai Daerah tidak memberikan respons terhadap pemberitahuan itu mengikut subseksyen (1), perhimpunan itu hendaklah diteruskan sebagaimana yang dicadangkan dalam pemberitahuan itu” Oleh itu, nampaknya pihak polis tidak mempunyai kuasa untuk menghalang sebarang perhimpunan dari diadakan dan dari logik ini, maknanya setiap perhimpunan yang hendak diadakan adalah sah dari sisi undang-undang. Tetapi… Mereka boleh mengenakan syarat dan sekatan Walaupun pihak PDRM tidak boleh menolak cadangan anda untuk berhimpun, mereka mempunyai kuasa untuk memberitahu anda macam mana perhimpunan itu boleh diadakan. Di bawah seksyen 15(1), pihak polis berkuasa untuk mengenakan sebarang sekatan atau syarat kepada cadangan perhimpunan anda untuk memastikan keselamatan atau ketenteraman awam, termasuk perlindungan hak dan kebebasan orang lain (yang tidak terlibat dalam perhimpunan itu). Sekatan dan syarat ini boleh dikenakan terhadap tarikh, masa, tempat perhimpunan, kelakuan peserta perhimpunan, sebarang sensitiviti budaya/sejarah, dan juga meliputi pembayaran kos pembersihan akibat perhimpunan tersebut. Terdapat juga subseksyen yang luas untuk membolehkan PDP mengenakan sebarang sekatan/syarat yang beliau berpendapat perhimpunan tersebut memerlukan. Sebagai ilustrasi, jom kita lihat contoh dibawah: Ali bercadang untuk menganjurkan perhimpunan di Jalan Bukit Bintang. Dia memberitahu PDP bahawa perhimpunan tersebut akan berlangsung pada hari Sabtu, pukul 1pm, dan perserta-peserta perhimpunan tersebut akan sebanyak 500 orang. Dia juga memberitahu pihak PDP bahawa dia akan menggunakan megaphone semasa perhimpunan tersebut dan akan bergerak dari Jalan Bukit Bintang ke Jalan Sultan Ismail. PDP memberi respons kepada Ali dan mengenakan syarat/sekatan bahawa Ali hanya boleh mengadakan perhimpunan tersebut pada hari Khamis, pukul 2pm, dengan 200 peserta tanpa penggunaan megaphone di Jalan Sultan Ismail sahaja. Contoh sebenar yang berlaku dalam tahun 2017 ialah bila pihak PDRM mengubah lokasi satu perhimpunan oleh kerana lokasi yang dicadangkan tidak mampu menyokong bilangan peserta dan setelah menerima beberapa aduan daripada penduduk-penduduk kawasan tersebut. Tetapi, jangan risau sebab anda boleh mengemukan rayuan kepada sekatan/syarat yang dikenakan dalam tempoh 48 jam selepas menerima sekatan tersebut dan hak ini boleh ditemui dalan seksyen 16: “Mana-mana penganjur yang terkilan dengan pengenaan sekatan-sekatan dan syarat-syarat di bawah seksyen 15 boleh, dalam tempoh empat puluh lapan jam selepas dimaklumkan mengenai sekatan-sekatan dan syarat-syarat itu, merayu kepada Menteri” Soalan seterusnya yang anda mungkin ada ialah...apa yang akan berlaku sekiranya anda tidak mematuhi Akta Perhimpunan Awam? Anda mungkin akan menjadi penjenayah Di bawah Akta Perhimpunan Awam, pihak penganjur (anda dalam situasi ini), akan melakukan suatu kesalahan jika anda gagal untuk memberi pemberitahuan kepada PDP. Selain dari itu, sekiranya pihak PDP mengenakan syarat kepada perhimpunan anda, anda perlu memastikan bahawa anda memberitahu peserta-peserta perhimpunan tentang syarat tersebut kerana ia merupakan satu kesalahan untuk tidak mematuhi syarat tersebut. Kalau perhimpunan itu menyalahi undang-undang, hanya pihak penganjur (anda) akan melakukan kesalahan di bawah APA 2012. Namun, pihak peserta boleh melakukan kesalahan jenayah jika mereka tidak mematuhi Kanun Keseksaan (tiada terjemahan rasmi). Maknanya, jika anda merupakan peserta perhimpunan, ini tidak memberi alasan kepada anda untuk melakukan sebarang kesalahan semasa menghadiri sebarang perhimpunan. Di sini lah kita akan melihat seksyen 142 Kanun Keseksaan: “Sesiapa yang menyedari bahawa mana-mana perhimpunan ialah perhimpunan yang menyalahi undang-undang dan dengan sengaja menyertai perhimpunan tersebut merupakan peserta perhimpunan yang menyalahi undang-undang” [tiada terjemahan rasmi] Maksud seksyen ini ialah walaupun ia tidak menyalahi APA 2012 untuk menjadi peserta perhimpunan haram, ia salah dari sisi Kanun Keseksaan. Secara kesimpulannya, kesalahan-kesalahan sebagai penganjur dan peserta adalah seperti berikut tetapi ia harus dinotakan bahawa senarai di bawah tidak lengkap dan cuma terdiri daripada kesalahan yang tertumpu untuk tujuan artikel ini. Penganjur Gagal memberitahu PDP – kesalahan di bawah seksyen 9(5) APA Gagal mematuhi sekatan/syarat yang dikenakan – kesalahan di bawah seksyen 15(3) APA Melakukan perbuatan jenayah – kesalahan di bawah Kanun Keseksaan dan mana-mana undang-undang lain Peserta Gagal mematuhi sekatan/syarat yang dikenakan – kesalahan di bawah seksyen 15(3) APA Menjadi peserta perhimpunan haram – kesalahan di bawah seksyen 142 Kanun Keseksaan Melakukan perbuatan jenayah – kesalahan di bawah Kanun Keseksaan dan mana-mana undang-undang lain Tetapi, penyelesaian kepada hal ini senang sahaja… Patuhi je lah undang-undang Walaupun kesalahan-kesalahan di atas macam sangat menakutkan, ia memang tidak. Ini kerana semua yang diperlukan dari anda ialah untuk memberi pemberitahuan kepada PDP dan menjadi individu yang bertimbang rasa apabila menyertai sebarang perhimpunan. Ia juga penting untuk ingat bahawa walaupun anda mungkin berjuang untuk tujuan yang penting, perhimpunan anda masih akan menjadi gangguan kepada kehidupan orang lain di kawasan itu dan ia adalah baik untuk mengurangkan kesan-kesan perhimpunan anda terhadap mereka. Perkara-perkara kecil seperti memungut sampah sendiri dan tidak menyebabkan kerosakan kepada persekitaran anda amat penting. Jika anda berfikir anda boleh menganjurkan sebarang jenis perhimpunan sahaja, seperti perhimpunan bermain pisau atau berlaga ayam, kita nak menarik perhatian anda ke seksyen 141 Kanun Keseksaan kerana seksyen ini mengharamkan sebarang perhimpunan dengan peserta melebihi lima orang sekiranya tujuan am mereka adalah untuk melakukan perbuatan jenayah."
"How to organise a (legal) rally in Malaysia Malaysians are no strangers to rallies and as a matter of fact, we have seen many in the recent years. From BERSIH rallies to the upcoming anti-ICERD “thanksgiving” rally, Malaysians have been pouring into the streets. You may have read recently that the authorities have given the organisers of the anti-ICERD rally the green light to host their rally this weekend. This brings us to the question of how you can get permission to host your own rally and what the authorities take into account when giving their green light. Before we dive into that, let’s take a look at what a “rally” is first. It’s a large get-together According to the Cambridge Dictionary, a rally is a public meeting of a large group of people, especially supporters of a particular opinion. Unless your family numbers in the hundreds, chances are any family reunion you have would just be considered a gathering and not a rally. In turn, rallies are also known as assemblies and in Malaysia, the right to freedom of assembly can be found in Article 10 of our Federal Constitution which says: “Subject to Clauses (2), (3) and (4)...all citizens have the right to assemble peaceably and without arms...” [Just to clarify arms refer to weapons and not the body parts you are using to hold your phone and read this article] Many of you savvy AskLegal readers may know that just because a right is given does not make it absolute. For example, you can read our two articles on free speech and the right to defend yourself from robbers. This is where we throw in the next legislation which governs the hows, whys, and whats of getting together in Malaysia. The legislation is known as the Peaceful Assembly Act 2012 (“PAA 2012”). Section 3 of the Act gives us further definitions into what is an “assembly”: ““assembly” means an intentional and temporary assembly of a number of persons in a public place, whether or not the assembly is at a particular place or moving” [emphasis added] Now that we’ve gotten the definition of rallies/assemblies out of the way, let’s take a look at how you can apply to host an assembly in Malaysia. You need to notify the big boys first Under section 9 of the PAA 2012, the organisers of any assembly would have to notify the Officer in Charge of the relevant Police District (“OCPD”) ten days before the assembly is due to take place. However, there are certain kinds of assemblies that don’t require you to notify the PDRM and they are divided into: assemblies held at a designated assembly area gazetted by the Minister of Home Affairs religious assemblies funeral processions wedding receptions open houses during festivities corporate family day general meetings of societies/associations It is to be noted that at the time of writing, we were unable to find if there are any areas that have been gazetted by the Minister so it seems like as a general rule, assemblies would require notification to the PDRM. It is to be noted that the section only requires notification and it does not place the power of authorisation in the hands of the PDRM. This means that all that is needed is for an assembly to be notified and not for permission to be obtained. As a matter of fact, section 14 tells us that the police have to respond within 5 days of receiving your notice and a failure to respond means that the assembly gets to go on as how you proposed it to be. Section 14(2) PAA: “If the Officer in Charge of the Police District does not respond to the notification in accordance with subsection (1), the assembly shall proceed as proposed in the notification.” Therefore, it appears that the police have no powers to say ""no"" to an assembly and by this logic, if they can’t say no, technically every assembly is legal. But there is a catch. They are allowed to impose restrictions While they can’t say no to your proposal, what the police can do is tell you how the assembly is to be carried out. Under section 15(1), the police are empowered to impose restrictions in the name of security, public order, and protecting the rights and freedoms of other people (who are not part of the assembly). These restrictions encompass matters such as when, where, and how the assembly is to be held, the conduct of the participants, religious/historical considerations, and even payment of clean up costs. There is also a broad, all encompassing subsection that allows the OCPD to impose any other restrictions that he deems necessary for the assembly. To show you how this works, let’s take a look at a quick example: Ali decides to host an assembly on Jalan Bukit Bintang. He notifies the OCPD that the assembly will be held on Saturday at 1pm and tells them that he expects a turnout of 500 people. He further tells them that he would be using megaphones during the assembly and would march from Jalan Bukit Bintang to Jalan Sultan Ismail. The OCPD tells Ali that he can host his assembly on Thursday at 2pm with only 200 people and it is to be confined at Jalan Sultan Ismail with no megaphones allowed. A real life example of this happened back in 2017 when the PDRM moved the location of a proposed rally after realising that the initial area was insufficient to support the number of participants and after several complaints from residents in the area. However, before you fret, these restrictions can be appealed within 48 hours of you receiving them and this right is found in section 16: “Any organizer aggrieved by the imposition of restrictions and conditions under section 15 may, within forty-eight hours of being informed of the restrictions and conditions, appeal to the Minister.” Now that you know how to go about organising a legal rally, the main question is...what happens if you don’t comply with the Peaceful Assembly Act? You might be a criminal Under the PAA 2012, the organiser (which is you in this case), would be guilty of an offence if you fail to notify the police of your proposed assembly. Aside from that, if the OCPD provides you with any other restrictions, you would have to ensure that you inform your participants of the restrictions as it is an offence to not adhere by those restrictions. A careful reading of the Peaceful Assembly Act seems to indicate that if the assembly is illegal, only the organiser (you) would get in trouble. However, the members of the illegal rally can still run foul of the law if they commit other criminal acts that can be found in the Penal Code. If you’re not an organiser, this doesn’t give you an excuse to go crazy because there is someone else to take the blame for you. This then brings us to section 142 of the Penal Code: “Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.” This section means that while it is not illegal to be a member of an illegal rally under the PAA, it is illegal under the Penal Code. If we had to sum it up for you guys, this is how the offences might play out. Do note that list below is not exhaustive but the offences are focused on for the purposes of this article. Organisers Failure to notify the OCPD – offence under section 9(5) PAA Failure to adhere to restrictions from the OCPD – offence under section 15(3) PAA Doing criminal acts – offences under the Penal Code and any other law Participants Failure to adhere to restrictions from the OCPD – offence under section 15(3) PAA Being a member of an unlawful assembly – offence under section 142 Penal Code Doing criminal acts – offences under the Penal Code and any other law However, at the end of the day, the solution to this is pretty simple. Just play by the book While the offences above may sound scary, it really isn’t so. This is because all that is needed to avoid falling on the wrong side of the law is to notify the OCPD of your assembly and then be a civic minded individual when participating in the assembly. It is also important to remember that while you may be fighting for a worthwhile cause, your assembly would still be a disruption to the lives of others in that area and it would be best to minimise your impact on them. Small things like picking up after your own trash and not causing damage to your surroundings goes a long way. Before you think that this gives you the licence to host any kind of assembly, like a knife fighting assembly or a rally of people dressed as characters from My Little Pony/Zootopia, let’s draw your attention to section 141 of the Penal Code because this section makes an assembly of five or more persons illegal if their common purpose is to commit criminal acts. Other than that, happy (legal) rallying!"
"7 laws Malaysian businesses need to follow, but don’t always  Malaysians generally know that when you open a business, there are a lot of rules and regulations that you need to follow. When the Raj Banana Leaf incident with washing plates in potholes happened, we were reminded (or informed for the first time) that food and beverage businesses need to get their food handlers vaccinated for typhoid and send them for training. While this highlighted the infringement of one little-known rule, little do most of us know that some businesses are busy breaking the rules elsewhere, pretty much all the time. Not all of these are outright “crimes” which they can get in trouble with the government for, but some businesses may assert rights that they don’t actually have. The most widespread is probably right inside your employment contract… 1. Your ex-employers can’t stop you from competing against them Employment contracts often include a section called something along the lines of “non-competition” or “restriction of trade”, which will go something like this: “After the termination of employment for any reason whatsoever, the employee shall not for a period of 12 months from the date of termination carry out any business of any nature that is similar in nature to or is in competition with the employer.” It’s called a non-competition clause, and what it wants is to make sure you don’t join or start a business that competes with them. Since you’ve been working with your ex-employer for some time and presumably have picked up some tricks of the trade, they probably don’t want you bringing that over to a competitor. But…is this contract term legal? Yes, and no. The non-competition clause is, in most cases, more bark than bite - it’s not illegal for your employer to put it into the contract, but it also has no effect in Malaysia due to Section 28 of our Contracts Act 1950, which says: “Every agreement by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, is to that extent void.” Businesses still put this clause in their employment contracts as a safeguard, just in case anyone has any smart ideas about setting up a competing business to take advantage of them. In Malaysia, these non-competition clauses normally only work between business partners. So don’t be fooled, you can join whatever business you want after leaving your previous boss. What you can’t do is take away sensitive data like client details away from your employer, which would be considered “trade secrets” that you should not be using after resigning. Doing so could get you in trouble for breach of confidential information, and yes, your ex-employer can sue you for that. [READ MORE - What qualifies as ""confidential information"" in Malaysia?] You can get the details about non-competition clauses at our previous article below: [READ MORE - Can Malaysian employers stop their ex-staff from joining a competitor?] 2. Shops are not allowed to charge extra when you pay by card We’ve all been there before: you go to a store to get some supplies or a new gadget, and when you’re paying at the counter, the cashier informs you that there is a 2% surcharge for paying by credit card. And you’ve probably asked at some point: Are they even allowed to do that…? Whether or not it’s allowed depends on the merchant agreement between that shop and their bank which provides their credit services. Truth be told, the agreements usually specifically state that shops are not allowed to impose an extra charge on customers for paying by card. Shops that do so are actually in violation of their contract with their bank, and the bank has the right to terminate their services. You can report offending shops either to their bank (which you can see from the receipt you get after paying), or to Bank Negara by calling 1300-88-5465, or sending your complaint to bnmtelelink@bnm.gov.my [READ MORE - Is it legal for Malaysian shops to charge you extra for paying by card?] 3. Getting customer contact details with tactics that violate the PDPA Here’s a telemarketer tactic you might have encountered: A gym calls you out of the blue to offer you membership promotions, and you don’t even know how they got your number. You later find out that a friend of yours was offered coupons in exchange for listing the contact details of two friends. This is illegal according to our Personal Data Protection Act 2010 because they did not get your permission to collect and use your contact details - they got your friend to cough it up. It’s technically not illegal for them to ask for your contact details, but it becomes illegal the moment they store your data and use it. [READ MORE - How does the Personal Data Protection Act work?] If this kind of scenario ever happens to you, you don’t go after your friend, but know that you can report these companies to the Department of Personal Data Protection. [READ MORE - Can friends ""refer"" your contact to companies without your permission in Malaysia?] 4. Simply claiming something is “limited edition” You see this pretty much anytime there’s a promotional campaign going on and a company is giving away some gifts and prizes for your participation: “Limited time only” “While stocks last” “Only 200 units left” Guess what? Only one of those slogans is legal. Section 15 of the Consumer Protection Act 1999 states clearly that it’s illegal to call something “limited” unless there’s a maximum amount available, or it’s only available for a short period of time. Further, consumers must be shown clearly exactly how many are available, or exactly how long the goods will be available. Companies which hide this information can be punished with a fine up to RM250,000 (RM500,000 for repeat offences), and individuals can be fined up to RM100,000 or 3 years of prison or both (RM250,000 and up to 6 years for repeat offences). [READ MORE - 5 common sales tactics used in Malaysia that are actually illegal] 5. Having unreasonable no-refund policies Common as no-refund policies are, most consumers don’t know that a majority of them are actually illegal for companies to impose, especially when they are without a good reason. The Consumer Protection Act 1999 has some laws covering what’s called “unfair contract terms”, which can include an unreasonable no-refund policy. They could apply in a variety of situations where the shop has to give you a refund, such as when you were given the wrong size of shoes, or if a no-refund policy applies to items on sale rather than just to underwear (that’s acceptable for hygiene purposes), or even when you are cancelling an ongoing membership (they have to refund the remaining months, by law). You can file any complaints of no-refund policies with the Domestic Trade, Cooperatives and Consumerism Ministry (KPDNKK) over here, or file a claim with the Tribunal for Consumer Claims Malaysia. [READ MORE - 5 ways you can (possibly) get around a no refund policy in Malaysia] 6. Playing music in their store without proper licensing We don’t even think about this or question it on an everyday basis - businesses play music to attract customers and provide atmosphere, and that’s about it. But actually, they need to get a license from the artists to use that music, especially because they’re running a business (and not using it for non-profit reasons). This isn’t the kind of license like getting a business permit from the government, but is more of the fact that the music is copyrighted - that is to say, owned by some people like the artist and the recording company, and you need to “buy” the permission to use the music from them. Normally, a business owner would need to get a license from each and every artist whose songs they play. This can feel really tiresome and hassling, but the other option is to risk copyright lawsuits. Some business owners might not have even realized that they need to get licenses in the first place, but they should correct that situation as soon as they can, because “I didn’t know” is not an acceptable excuse in court. Fortunately, there are licensing bodies like Music Rights Malaysia and Soundtrack Your Brand, which act like a central licensing agency so that businesses won’t have to contact so many different artists to license songs. [READ MORE - Is it illegal for Malaysian shops to play music without a license?] 7. Treating workers who are actually “part-time employees” as “freelancers” instead You may have worked as a freelance promoter before, and were used to the notion that you would be paid a fixed amount each day. Maybe you’d get an allowance, and you don’t have any EPF or SOCSO contributions - pretty standard and normal, right? Except, this arrangement is actually illegal according to our labour laws. According to the legal criteria, a lot of “freelance promoters” actually qualify as employees because they are usually given rules and orders to follow, a sales script to adhere to, and generally have little control over how and when they do their job. If a company hires a promoter but treats them as a freelancer instead of as an employee, they could be taken to the labour court by the employee and forced to pay a few months salary as compensation for early termination, depending on the arrangement (the conditions can be a bit too complicated to explain simply). They’d also be liable for not paying EPF, SOCSO, as well as EIS for the promoter, and therefore be committing other offences… If you ever need to hire freelancers, it’s best to check whether the job scope you require falls under employment or freelancing to avoid any trouble later on. Similarly, if you’re a freelancer, you might want to know if your job description falls under part-time employment. [READ MORE - How do you tell if someone is considered a freelancer, or an employee?]"
"5 Langkah untuk mendapat bantuan guaman di Malaysia Hampir semua aspek aktiviti-aktiviti harian mempunyai unsur undang-undang. Ini bermakna terdapat kemungkinan yang anda akan menghadapi masalah undang-undang, dan anda akan memerlukan bantuan seorang peguam. Malangnya, perkhidmatan seorang peguam bukannya percuma, dan mungkin tidak dimampui. Oleh sebab itu, Malaysia mempunyai badan-badan yang memberikan perkhidmatan guaman secara percuma ataupun yang bersubsidi. Tujuan badan-badan sebegini ditubuhkan adalah untuk memastikan agar semua orang mempunyai peluang untuk mendapat bantuan guaman jika diperlukan. Anda boleh membaca artikel berkenaannya di sini. Langkah 1: Tentukan jika kes anda ialah kes sivil atau kes jenayah Jika kes anda membabitkan PDRM dan pendakwa raya awam, ia biasanya adalah kes jenayah. Jika anda didakwa oleh seseorang individu, maka biasanya kes anda merupakan kes sivil. Anda perlu menentukan sama ada kes anda merupakan kes sivil ataupun kes jenayah kerana ia akan menentukan mana satu badan bantuan yang boleh menerima kes anda. Langkah 2: Pilih badan bantuan guaman Malaysia mempunyai 3 badan bantuan guaman. Ketiga-tiga badan ini memberikan bantuan untuk situasi yang berbeza, dan mempunyai syarat-syarat kelayakan yang berbeza: Jabatan Bantuan Guaman Malaysia (JBG): Mereka mengendalikan kes-kes jenayah di mana tertuduh sudah mengaku salah. Tujuan mendapat bantuan guaman dalam situasi sebegini adalah untuk mendapat hukuman yang lebih ringan. Mereka juga mengendalikan beberapa jenis kes sivil yang tertentu. Badan Peguam Malaysia (BPM): Mengendalikan kebanyakan kes jenayah dan kes sivil. Perbezaan antara JBGM dan BPM adalah BPM akan mengambil kes anda tidak kira anda mengaku salah ataupun tidak. Yayasan Bantuan Guaman Kebangsaan (YBGK): Mengendalikan kebanyakan jenis kes jenayah kecuali kes yang melibatkan hukuman mati. [Untuk maklumat lanjut tentang fungsi badan-badan ini, sila baca artikel ini: Apa yang boleh kamu buat jika kamu tak mampu mengupah peguam?] Langkah 3: Duduki ujian kelayakan Eh, ujian ini bukan macam peperiksaan sekolah! Ujian kelayakan ini adalah untuk menilai situasi kewangan anda bagi menentukan sama ada anda layak untuk mendapat bantuan guaman atau tidak. Anda boleh mengambil ujian JBG secara dalam talian (online). Namun, keputusan ujian dalam talian ini tidak muktamad. Tetapi untuk ujian kelayakan BPM dan YBGK, anda perlu hadir ke pejabat mereka untuk mengisi beberapa borang bagi menentukan kelayakan anda. Langkah 4: Buktikan anda mempunyai kes yang sah Sebaik sahaja anda lulus ujian kelayakan kewangan, anda mungkin perlu menduduki satu lagi ujian untuk menentukan jika kes anda sah atau tidak. Ujian ini dikenali sebagai ujian merit. Sesiapa yang ingin mendapatkan bantuan guaman daripada JBG dan BPM perlu mengambil ujian tersebut. Tetapi YBGK tidak mepunyai syarat untuk menduduki ujian merit, kerana YBGK percaya bahawa anda mempunyai hak untuk mendapatkan bantuan guaman dalam semua kes jenayah. [Ujian-ujian ini dibincangkan secara terperinci di sini: Apa yang boleh kamu buat jika kamu tak mampu mengupah peguam?] Untuk menyenangkan bebad badan-badan tersebut, anda perlu membawa beberapa dokumen penting seperti kad pengenalan, slip gaji, laporan polis dan dokumen-dokumen lain yang berkaitan dengan kes anda. Jika anda tidak pasti tentang dokumen-dokumen yang perlu dibawa, anda boleh hubungi badan bantuan guaman untuk pengesahan. Langkah 5: Ikut arahan dan nasihat peguam yang diberi kepada anda Langkah-langkah yang telah dibincangkan adalah bertujuan untuk memastikan bantuan diberi kepada mereka yang benar-benar memerlukannya. Jika anda layak untuk mendapatkan bantuan guaman, ikut nasihat peguam yang mewakili anda – hadir ke mahkamah apabila anda disuruh, bawa dokumen-dokumen yang diperlukan dan sebagainya. Ini akan memastikan bahawa kes anda akan berjalan dengan lancar supaya anda berpeluang untuk mendapatkan keputusan yang adil dan saksama."
"An ex-reporter shares the danger of being a social worker... and why she stayed Thank you to Nadea Melissa from Kuching, Sarawak for allowing us to use her photos for our feature image! If you’ve walked down a typical city street in Malaysia, it would be common to see a disabled man or a homeless family begging on the streets. You may have also come across someone who has been a victim of domestic violence, or at least saw something in the news about it. When you chance upon people in those situations, we understand it can be quite hard to emotionally digest such things. In fact, some of you may even have the desire to help these people but you don’t even know what to do. You may not even have the time and money to stop and smell the roses, let alone stop and help someone in need. While it’s encouraged to do lend a helping hand once in awhile, you don’t have to beat yourself up if you can’t. Fortunately, Malaysia has a bunch of NGOs and a Department of Social Welfare whose objectives are to do just that, help those in need. And they do this through their network of employees called social workers. If you haven’t heard of social workers in Malaysia before, it’s probably because not much light is given to their work or existence. This is why we got in touch with one of the Woman’s Aid Organization (WAO) social workers named Vivian (not her real name). She told us about how she got into the career and what her experiences were like. So the first thing we noticed when we met Vivian was….. She wasn’t like how we imagined her If you were told to imagine a “social worker”, you may conjure up images of social workers you’ve seen in movies or TV shows like Law & Order. We’re willing to bet, you imagined a woman who wears bland suits, holds briefcases, and has a pretty boring hairstyle. In fact if we asked you to try harder and imagine her personality, you’d probably say she’s strict, emotionless and by the book. Well before we met Vivian, we were guilty of expecting someone exactly like that too. But to our surprise, she wore an outfit fit for laidback conversation at a cafe and her personality could only be described as bubbly. Our conversation started off by exchanging pleasantries before she went into how she got into social work. The beginning of her story seemed pretty relatable, because her current job as a social worker wasn’t relevant to what she studied in college. Vivian actually studied journalism and worked as a reporter covering some pretty high profile court cases (Teoh Beng Hock and Anwar Part 2, just to name a few). Fast forward 4 years, Vivian ended her stint in the media and decided to take a leap into the realm of social work. Knowing that she lacked experience in the area, Vivian gave up having a salary and chose to work as unpaid intern for WAO. While no wages may have meant less online shopping sprees, it didn’t really put her off. In fact, after her internship she went on to do her postgraduate studies and continued volunteering for WAO as a crisis support officer. Only later, Vivian took on the role as a full-time salaried employee for WAO. When we asked her how she persevered through the whole experience, she told us it was because WAO allowed her to work in an area she was passionate about….domestic violence. She told us: “In Malaysia, people still think that women are the property of men after marriage…...that’s exactly how domestic violence happens, because one party thinks they’re more powerful than the other.” – Vivian, a social worker with WAO, in an interview with ASKLEGAL With that reason in her holster, Vivian persevered and moved up the ranks to eventually become a full-time salaried social worker. But like any job, it wasn’t all rainbows and butterflies, because she had her own set of challenges. She deals with clients that don’t feel safe One of the many challenges for Vivian as a social worker, is dealing with the emotional state of her clients. Due to the violence and fear her clients have experienced, they come to her feeling unsafe. Thus she says, her job isn’t always complete when her clients are safe, but when they’re in the mindset where they feel safe. To give you an idea of how challenging that is, Vivian told us about one client who was stalked by a physically abusive ex-boyfriend. Her client, ended the relationship thinking that the terror would stop, but she couldn’t have been more wrong. Her ex followed her, and he followed her everywhere she went. She sought WAO for help, and WAO assigned the case to Vivian. Throughout the whole handling of the case, Vivian noticed that her client was in an extreme state of fear. She said that her client had a few safe places to go to, but she insisted on staying at the WAO shelter. Vivian understood that staying in a place described as a “shelter” seems like the best option for someone coming out of a traumatic experience, but that’s not always the case. Their shelters sometime experience overcrowding which can be quite stressful. Plus according to Vivian, staying in a shelter can result in their clients feeling institutionalised. So what Vivian prefers to do instead, is actually work together with her clients by empowering them, and she does so by informing them of their rights and the steps they can take to overcome their situations and fears. Vivian added: “Fear is a tool used by these perpetrators against their victims to gain control. Once we overcome the fear together through empowerment, then we’ve achieved our goal” Sometimes she doesn’t feel safe herself The only time we may experience fear in the office, is when our boss sees the open Facebook tab in our browser. But for Vivian the fear can sometimes get a little more intense, because the fear from her clients sometimes gets to her. She told us that in her line work, she may have to be involved in hostile situations to help her clients out. And one such hostile situation she got into was when she helped the stalking victim we mentioned earlier. She mentioned that, while she was trying to get her client out of her stalking fiasco, she ended up being followed by the stalker himself. Yikes! Vivian said that the scariest part wasn’t being followed but because she knew what he was capable of doing. She added that the fear got to her so badly, that she contacted her family to watch out for the stalker too. She showed her family pictures of him and she made sure they stayed vigilant. And if you think the horrific stories stopped there, Vivian told us about another unrelated incident where her car was doused with petroleum and smashed up. What was extra scary was, Vivian didn’t know who did it and her car was parked outside the WAO shelter…...and the shelter’s location is supposed to be top secret. Fortunately now, Vivian told us she’s no longer scared about the prospects of entering into such dangerous situations. In light of the dangers that are inherent when doing social work, NGOs like the Malaysian Association of Social Workers (MASW) and even WAO provide training to their staff and members. They’d basically ensure that people like Vivian not just feel safe, but know what to do to keep themselves safe. According to Vivian to ensure that someone knows she’s trouble, WAO has provided her and other social workers with a panic button – which sends their locations back to WAO, who would then inform the police. But that’s not all that’s ensuring Vivian’s safety, because she has taken steps by herself to overcome her fears and in that process she came to a realisation: “I realised I had to empower myself first. Because if I live in fear too, how am I gonna help the people I work with?” With all that experience under her belt now, Vivian hopes that she can be more than a social worker and... Pursue a career in policy activism At the beginning of our conversation, Vivian told us that she hopes to get into policy activism. However she realised that she would have needed some hands on experience as a social worker. Vivian realised that before she could decide on what policies would benefit victims of domestic violence, she had needed to work with them on a personal level first. If you’re feeling a little inspired by Vivian’s story and you’re thinking that social work is something you’d wanna get into, you probably could give the NGO of your choice a call. If you don’t have the necessary academic background there are courses in social work that you can take, but nevertheless for now you could always start out as a volunteer or intern."
"In Malaysia, a woman can't get charged for adultery...here's why Almost every country has a set of peculiar laws. If you were to look at our neighbours down south, they have laws prohibiting the chewing of gum. But if you really want to, you don’t have to look too far because Malaysia has quite a bunch of them too, and today we’ll be looking at one. Malaysia has a law that criminalises adultery. If you’re surprised about this, it’s probably because you think the law is interfering with a private matter. If you’re not surprised, it’s probably because you think our laws preserve our traditional values. But the weird part isn’t the fact that we have a law that criminalises adultery, it’s how it’s enforced and who get charged. If you’re thinking it’s the spouse that did the cheating, you’re wrong because….. Only the one seducing a wife gets charged It wouldn’t be uncommon to think that if there’s a criminal law discouraging adultery, it would punish the cheating spouse. But according to Section 498 of our Penal Code, the law will punish the person outside of the marriage. Basically, the person who the spouse cheats with would get charged. That’s not all that’s laid out in the section and things get a little bit more peculiar, because the elements of the crime are as follows: The outsider entices or takes away a woman, who he knows is married to someone else he has the intention to get her to have sexual relationships outside her marriage So it’s not simply an outsider who cheats with a spouse who gets charged, it has to be an outsider who cheats with someone’s wife, and he can still get charged even if the wife consents to the cheating. Then what about a person who gets into an adulterous relationship with someone’s husband, can they get charged under Section 498 too? Well the answer is NO because... The law only protects the rights of husbands If you remember, quite some time back Malaysia was colonised by the British and they basically created some of our laws, the Penal Code included. During that period, the legal position of women were a little different because wives were considered the property of their husbands. A British judge called Sir William Blackstone summed up this notion by pointing out: By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; In less posh English, Sir William Blackstone is trying to say that a woman loses her legal existence the moment she gets married as she now comes under the protection of her husband. To have an insight as to how this concept would apply to recent cases, we’d have to take a look at India since they have a similar Section 498 in their Penal Code. In the case of Alagmir v The State Of Bihar, the prosecution charged a man under Section 498 for getting into a relationship with someone’s wife and living with her. While the court gave their judgement, they actually also took the time to explain the purpose of Section 498 and acknowledged it didn’t fit with modern times. The court said that Section 498 intended to protect the rights of the husband from his custody and control of his wife. But the court did concede that it’s indeed inconsistent with modern notions regarding the status of women and marriage, but it was still the duty of the court to apply whatever laws that are still in power. Malaysia doesn’t really prosecute these crimes anymore Because the matters involved in Section 498 are quite private in nature, the Attorney General’s office has been quite reluctant to prosecute such crimes. In fact, those who may have a complaint under this law would have to hire their own lawyer and conduct a private prosecution. This is where the court actually allow individuals to conduct prosecution themselves for certain less-serious offences, with the permission of the court. In addition to that, there are actually NGOs calling for the abolishment of this law on the grounds that it doesn’t fit with our values today. But until Parliament decides to repeal this law, it’s still technically a crime to “entice a wife”"
"5 annoying things your Malaysian neighbours do that you can sue them for Sometimes, your neighbours may do things that can really annoy you such as playing their music too loudly or letting their cats (all 9 of them) use your garden as a toilet. Neighbour peskiness administered in small, occasional doses may (or may not) be written off as mere trifling inconveniences. However, when done so frequently that it starts to interfere with the enjoyment of your life on your property, then it may just be the case that your neighbours are committing a tort of private nuisance. Good news is, you can bring them to court for it. A tort is basically a wrongdoing that gives you a reason to sue the wrongdoer. [READ MORE: What is a Tort?] When does your neighbour’s nonsense become a nuisance? Nuisance is not just something that your mother calls you, it’s also a legal term. There are 2 types of nuisances: private and public nuisance. For the purposes of this article, we are only looking at private nuisance, which occurs when someone does something which interferes with your right to enjoy your property (read: preventing you from living in your own house in peace). To successfully argue a case of nuisance against your neighbour, you must be able to show that what your neighbour is doing is an unreasonable, continuous interference with your enjoyment of your property which causes you some form of harm. Here is what a law textbook has to say about private nuisance: It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. The acts complained as constituting the nuisance, such as voice, smells or vibration, will usually be lawful acts which only become wrongful from the circumstances under which they are performed, such as time, place, extent or the manner of performance. - Clark & Lindsell on Torts (18th Ed.) What this means is that there are certain things which your neighbours do that may be perfectly fine by the law. However, when done in a certain way or at a certain time, it may amount to nuisance if it starts to seriously interfere with your life or worse, cause you emotional distress. For example: Your neighbour Yew Kan Seng is a horrible singer and every time he opens his mouth to sing, he croaks like a toad. It’s not illegal to sing, it’s not illegal to be a bad singer either. But when he starts to sing at the top of his horrible voice day and night, interfering with your sleep and daily life in a way that is intolerable, then it becomes a nuisance. That being said, nuisance by neighbours is not limited to loud music from late night partying or your neighbour’s lack of vocal talent. It can also be in the form of smells, vibrations, smoke and even sight. In fact, you’d be surprised by what the law considers and has considered to be a nuisance by neighbours. We dug up some cases that you might find interesting. Here are 5 things Malaysians have actually brought their neighbours to court for and won. 1. Regular and frequent open burning of prayer items Case: Tunku Norella Suriani bt Tunku Yusoff & Anor v Kumpulan Sierramas (M) Sdn Bhd & Anor [2011] 9 MLJ 1 A lady successfully sued her neighbour for regularly carrying out open burning of prayer offerings which gave out unpleasant and noxious smoke smells. It also caused smoke and ashes to be blown to her house. The court found that this amounted to nuisance as not only did it interfere with the lady’s enjoyment of her house, it also reduced the value of her property. 2. Pointing CCTV cameras such that it focuses directly on neighbour’s house Case: Lew Cher Phow @ Lew Cha Paw & Ors v Pua Yong Yong & Anor [2011] MLJU 1195 A family in Johor Bahru took an issue with their neighbours’ CCTV cameras which were pointing directly at their front courtyard and the back portion of their house. Feeling like they were constantly being spied on, the family had to erect zinc sheets along the fence to prevent their house and activities from continuous surveillance by their neighbour. The family also had to constantly keep their doors and windows shut. They were unable to live, eat and sleep well. As a result, they suffered from emotional distress, strain and medical complications. The court found the neighbour’s actions to be overt surveillance which violated the family’s right to privacy, and was essentially a nuisance. 3. Parking in an obstructive manner Case: Lai Kong Loke & Anor v Ting See Leng [2017] 7 MLJ 548 In 2017, a man in Penang sued his neighbour for regularly parking his car in front of his neighbour’s house. Not only did the way his neighbour parked prevent him from entering his own house, it also made it difficult for him to reverse his vehicle out of the driveway. The court decided that the neighbour’s behaviour was most unreasonable and amounted to nuisance. [READ MORE: What can you do if someone parks in front of your house?] 4. Having a noisy water pump Case: Ong Koh Hou v Perbadanan Bandar & YBR Management Sdn Bhd [2009] 8 MLJ 616 A man bought a penthouse and moved in. 2 weeks later, he moved out because he could not tolerate the noise of a defective water pump from the unit located above his. The man claimed that the noise was akin to a banging sound which occurred persistently at a frequency of twice every hour throughout the day. He sued the condominium developer and management. The court found that having to constantly put up with the banging sounds of the water pump was too much to bear and therefore considered the noise to be a legal nuisance. 5. Carrying out renovation works which damaged neighbouring property Case: Chan Wing & Sons Realty Co Ltd v The Asia Insurance Co Ltd [1962] 1 MLJ 40 It should come as no surprise to members of civilised society that if you damage someone’s property, you pay. In this case, owners of a couple of century old shop-house style buildings sued the owners of a neighbouring plot of land (the defendants) for causing serious damage to their property while carrying out construction works. Evidence showed that the vibration from the constructions works caused the walls and cement floors to crack and the structure of the building to misalign. The defendant argued that none of this was their fault as the building was very old. However, the judge did not buy that argument as the judge was of the opinion that just because a building is old doesn’t mean it does not deserve legal protection against nuisance. How to deal with your unneighbourly neighbours Now, before you go off in a hurry serving lawsuits on your neighbours, always attempt to amicably talk things through with them first because remember: If not even a smile as bright as Spongebob’s is able to convince your neighbour to behave more neighbourly towards you, you can always lodge a complaint with the local authorities (ie Majlis Bandaraya/ Majlis Perbandaran). Under the Local Government Act 1976, local authorities are responsible for taking necessary steps to resolve certain types of nuisances. Some issues that local authorities have the power to deal with are listed in section 81 of the Act and they include dealing with: animals kept in a place or in a way that is considered to be nuisance accumulation or deposit which is likely to become a breeding place for flies/ mosquitoes/ rats giving off of smoke or dust which is harmful to the health of the residents in a neighbourhood Note that the list above is non-exhaustive as local authorities are empowered to deal with a much broader range of issues. To understand their scope of powers and responsibilities better, please refer to the Act. If you live in a stratified property (high rise apartments/ flats/ condominiums/certain gated and guarded landed properties), you should always raise your complaints to your joint management body first before going to the lawyers. Owners and residents of stratified properties are bound by laws and regulations such as the Strata Management (Maintenance & Management) Regulations 2015, and in some cases the Deed of Mutual Covenants and Sales and Purchase Agreement which basically spell out the ‘house rules’ that residents must follow. If you’ve exhausted all diplomatic avenues, then of course there’s always the courts to resort to. Should you have to go down this road, remember to collect enough evidence as that could either make or break your case! Ultimately, whether the courts deem something your neighbour does a nuisance will be decided upon the facts and circumstances."
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"Bagaimana mendapat kembali wang yang anda pinjamkan kepada kawan anda Anda mungkin pernah meminjam wang kepada rakan anda tetapi mereka gagal mengembalikannya. Kadangkala, jumlah tersebut adalah kecil sehingga kita boleh menghalalkannya, tetapi kadangkala jumlahnya agak besar. Anda mungkin juga ingin mendapatkan kembali wang anda atas dasar prinsip. Mungkin tidak berbaloi untuk menggunankan perkhidmatan guaman yang mahal untuk menuntut kembali wang daripada rakan anda, terutamanya jika wang yang dipinjamkan berjumlah kecil, tetapi tahukah anda bahawa anda boleh menuntut hutung tanpa menggunakan bantuan peguam dengan tiga langkah yang mudah? Ini dikenali sebagai prosedur tuntutan kecil dan ianya tertakluk kepada Perintah 93 Kaedah-Kaedah Mahkamah 2012. Jika anda berminat untuk membaca versi artikel ini yang lebih lanjut, anda boleh klik sini. Prosedur tuntutan kecil hanya boleh digunakan untuk pinjaman yang tidak melebihi RM5,000. Langkah 1: Dapatkan Borang 198 dari Mahkamah Majistret Ianya bermula dengan mengisi borang yang boleh diperoleh di mahkamah. Maklumat yang perlu diisikan adalah seperti berikut: Isi nama (plaintif) penuh anda, nombor kad pengenalan dan alamat terkini. Isi nama (defenden) penuh peminjam, nombor kad pengenalan dan alamat terkini mereka. Nyatakan jumlah wang yang ingin dituntut. Nyatakan butiran tuntutan seperti bila kejadian ia berlaku, kenapa kejadian berlaku dan sebagainya. Jika anda mempunyai bukti pinjaman seperti slip transaksi bank ataupun pesanan teks. isikan butiran yang berkenaan seperti nombor transaksi. Tandatangan borang berkenaan dan sertakan 4 salinan kepada Pejabat Pendaftaran bagi Mahkamah Majistret Kelas Dua bersama bayaran RM10. Pejabat Pendaftaran akan meletakkan meterai Mahkamah ke atas 4 salinan borang itu dan mengisikan tarikh pendengaran. Walaupun anda boleh mendapatkan nasihat peguam ketika mengisi borang ini, anda tidak boleh mendapatkan perwakilan peguam semasa pendengaran kes. Dapatkan senarai Mahkamah Majistret di sini. Langkah 2: Poskan borang yang tel dilengkapkan dan termeterai Setelah borang tersebut dimeterai, anda perlu menghantarnya kepada alamat si peminjam melalui pos berdaftar ataupun dengan tangan. Adalah penting untuk anda menghantar borang tersebut melalui dua kaedah yang dinyatakan di atas kerana ianya termaktub di bawah undang-undang. Hal ini adalah untuk memastikan bahawa anda telah melakukan semua yang diperlukan dan si peminjam mendapat notis tentang tarikh pendengaran kes. Langkah 3: Hadir ke mahkamah pada tarikh yang ditetapkan Ini adalah langkah terakhir dan langkah yang amat penting kerana sekiranya anda tidak hadir ke mahkamaha maka saman anda boleh dibatalkan oleh mahkamah, ataupun mahkamah boleh memihak kepada pihak defendan (jika dia membuat tuntutan balas (counterclaim)). Mahkamah juga akan memerintah anda menanggung kos si peminjam. Selain daripada itu, anda mesti hadir untuk mempersembahkan kes anda kepada mahkamah dan menyertakan bukti kepada hakim untuk mengukuhkan kes anda (seperti slip transaksi bank dan sebagainya). Anda juga mesti hadir untuk mendapat kembali wang anda. Jika keputusan mahkamah memihak kepada anda maka adalah penting untuk anda hadir bagi mendapatkan keputusan tersebut supaya anda boleh menguatkuasakannya. Itulahtiga langkah mudah untuk menuntut wang yang anda pinjamkan kepada rakan anda. Seperti yang kita kelaskan di atas, jika anda perlukan maklumat lanjut, sila bacanya di sini."
"Can Malaysian shops make you spend a minimum amount to use credit cards? Image credits to National Pharmacy at 163 Mont Kiara, who most definitely don’t impose a minimum purchase amount. There are many alternatives to cash these days. First, we have the traditional credit cards. Then, we have the e-wallets, the QR payment methods and the list goes on and on with technology developing faster than ever. Given how there are so many cash alternatives, you forgot to withdraw money for your date but didn’t bother doing it because that’s what cash alternatives are for. The date goes swimmingly well and dinner turns into desserts. When you finally call for the bill, you just whip out your credit card only to have the waiter go, “Sorry sir. Credit cards are only for RM100 and above.” You bluster, not wanting to lose face in front of your date but the waiter stands firm. Minimum spending amounts are necessary before they accept your credit card. As you fret about it, your date pulls the bill over and pays it. You’re embarrassed. What’s the point of pushing forward cash alternatives if they are going to make you spend more? Actually... They can’t impose a minimum transaction amount You may be surprised to learn this because minimum transaction amounts are so common in Malaysia that no one bats an eye at it. As a matter of fact, Malaysians are so used to it that we rarely quibble about it with the retail store owners, usually just pulling out some cash or resorting to our friends to help chip in. However, some digging around revealed that the credit card companies such as Visa and Mastercard actually have rules that are meant for the merchants to adhere to. They are known as scheme rules and all retailers would have to comply with them. For example, under the Visa Core Rules and Visa Product and Service Rules which was last updated on 13 October 2018 states the following: “All participants in the Visa system are subject to and bound by the Visa Charter Documents and the Visa Rules, as applicable based on the nature of their participation and geography.” Now that we know the retailers are bound by these rules, let’s skip down to Rule 1.5.5 where it says: “A Merchant must not establish a minimum or maximum Transaction amount as a condition for honoring a Visa Card or Visa Electron Card.” To break it down, what this rule means is that a retailer is not allowed to stop you from using your card even if you are only paying for RM1. The same rules can be found in the Mastercard rules (this downloads a copy of the rules), last updated on 28 June 2018 which contains the same prohibition to retailers under Rule 5.11.3. The rules don’t explicitly mention whether these rules apply similarly for debit cards but given how debit cards are also defined as Visa and Master products, it would be a fair assumption to make that retailers similarly can’t impose minimum amount transactions before you can use your debit cards. Now that you know they are not allowed to do this, the next question is, what can you do when retailers still impose minimum amounts? You can lodge a complaint to Bank Negara Bank Negara has an app known as BNM MyLink (Google PlayStore and Apple Store) which allows consumers to lodge complaints through if they have dealt with any retailers who impose a minimum transaction amount. Bank Negara also provided a detailed instruction on how to lodge a complain here. It’s important to note that you may need to get the following details from the retailers: Name Address Acquiring bank (which bank is servicing that shop) Bank Negara can also be contacted through their Facebook page here. So now if you are ever caught in such a tussle, you would know what to do but do try not to take it out on the employees there because they are just enforcing company policy. [READ MORE: Is it legal for Malaysian shops to charge you extra for paying by card?]"
"Can security guards keep your MyKad or driving license? We can all probably agree that the major bane of entering housing areas/ condominiums/ apartments as visitors is the inconvenience of being asked to produce our MyKad’s or driving licenses by security. Sometimes, security may even hold onto our MyKad’s or driving licenses in exchange for visitor passes. This is such a common practice that very few of us stop to question if security guards even have the right to inspect and retain our identification documents in the first place. Instead, we just give them our IDs without giving it much thought. But… what does the law have to say? The law cannot be clearer in relation to security guards holding onto MyKad’s and only returning them upon a visitor exiting the premises: security guards do NOT have the right to withhold visitors’ MyKad’s under any circumstances (we’ll talk about driver’s licenses later in the article). It’s a big NO- NO. The law can be found in the National Registration Regulations 1990 (Amendment 2007). Unfortunately, we can’t link you to the latest version of the Regulations as it is not available online. You will need to have subscription to a legal database to access the latest version. So note that what you see in the linked document may differ from the Regulations discussed in this article. Regulation 8A makes it an offence for unauthorised personnel to hold onto your MyKad. Anyone found guilty of this offence can potentially face up to 3 years in prison and/or a fine of up to RM 20,000. Regulation 7 explicitly states that only certain officers are allowed to inspect the identity of a person and request the person to produce his/her MyKad for inspection. These officers include: registration officers (of the National Registration Department of Malaysia aka JPN) police officers customs officers members of the Armed Forces on duty public officers authorised by the Director General So this means that only officers in the list above are allowed to detain a person’s MyKad. Even so, they can only do this if they have a reason to suspect that the person’s identity is false. On 16 November 2018, the Royal Malaysia Police (aka PDRM) issued a Facebook statement confirming that security guards do not have the right to retain your MyKad. Can security guards record your MyKad details? Most of us would be familiar with the process where security guards would ask to see our MyKad’s and take down our details in a log book. As explained above, under Regulation 7 security guards are not even allowed to conduct checks on your identity, let alone request for any kind of identification documents. However, in the broader interest of security, the Ministry of Home Affairs released a circular back in 2007 authorising security guards to request for visitors’ identification documents for inspection and record purposes. That being said, they must return the identification documents to you immediately. The ban on withholding MyKad’s remains absolute. TL;DR: Asking for MyKad for inspection/ to record details = OKAY Retaining MyKad= NOT okay What about driving licenses? We asked the PDRM about driving licenses, but we have not received a response. We will update as soon as we receive a reply. However, with reference to the circular released by the Ministry of Home Affairs, it seems like your driving license is also considered to be an identification document. Therefore, it may be safe to assume from the circular that just like MyKad’s, security guards are only allowed to ask for your license in order to record your details, but they must return your license immediately after. What if security insists on holding onto my ID? If a security guard attempts to withhold your identification documents from you (be it your MyKad, driving license or passport), you should explain to them that they cannot do so under the law. However, it is worthwhile to bear in mind that there really is no point kicking up a fuss as security guards are just carrying out instructions. Whatever the situation, always know that you have a right to refuse to let security hold onto your MyKad, or anyone else for that matter. If they still insist, you should ask to speak to a person in charge such as the security supervisor/ residents’ committee/ condominium joint management body. As a last resort, you can always make a police report. [READ MORE: What (legal) powers do security guards in Malaysia have?]"
"Stalkers in Malaysia are not getting arrested by the police... but why?  Before we take you to the nitty gritty aspects of stalking, let’s imagine the following scenario: Your phone rings… You check the caller ID and are at your wit’s end when you see that it is yet another unknown number. You block the number on instinct. You reach for your keys and head out. The moment you step out of your house, your phone beeps with an incoming message: “It’s late.Where are you going? By the way, nice dress.” You feel a sickening lurch in your stomach and quickly take stock of the surroundings. You notice his car sitting in the far corner of the street outside your house. You immediately go back into the house, locking all your doors. This guy has been stalking you for the longest time, following you around, leaving these messages, watching your every move. You feel trapped and violated… You finally decide that enough is enough and you call the police. When they arrive, you relate your ordeal to them, only to have the police say: “There is nothing we can do because he hasn’t committed any crimes.” That’s right, it isn’t a crime to stalk someone in Malaysia Stalking is commonly understood to be the unwanted persistent following or spying of a person. As far as that definition goes, Malaysian laws do not recognise stalking as a crime. The definition of stalking can be quite technical as the acts of stalking are non- exhaustive, but for a more comprehensive definition of stalking, click here. Stalking doesn’t only happen between spouses/ ex spouses/ intimate partners. It is also possible to be stalked by complete strangers. You would probably be surprised by the fact that stalking is not prohibited by law but did you know that there have been calls to criminalise stalking in Malaysia and that the campaign to make stalking a crime actually began as early as back in 2013? So, it’s been 5 years… why is stalking still not a crime? ASKLEGAL spoke to Tan Heang Lee, Communications Officer of the Women’s Aid Organisation (WAO), who told us: “Back in 2013-2015, multiple women’s groups came together and worked with the Attorney General’s Chambers and other parties to criminalise stalking. Unfortunately, things didn’t go through so we are now trying to revive the conversation to make stalking illegal.” [emphasis added] The Joint Action Group for Gender Equality (JAG), a coalition of 13 gender equality NGO’s to which WAO is a party, has been tirelessly pushing for anti-stalking laws in Malaysia. “Currently, there are no laws on stalking in Malaysia. So if someone follows you around or regularly shows up at your workplace, it is not a crime unless that person harms (or threatens to harm) you. This is problematic because by the time harm is done it’s too late.” – Heang Lee, [emphasis added] For detailed stalking statistics in Malaysia, read WAO’s statement here. No law = No protection Without stalking laws, someone could be continuously following you around and making you feel unsafe but yet nothing can be done about it. Further, there is nothing to prevent stalkers from causing further harm. HOWEVER, while following a person around is not a crime, there are certain things that stalkers may do that are considered crimes under current laws. Here are just some examples (note that this list is non-exhaustive): Communications and Multimedia Act 1988 Under Section 233 of this Act, it is an offence to send annoying, abusing, threatening or harassing messages to another person. Computer Crimes Act 1997 It is an offence to install tracking devices and/or hack into someone’s computer or online accounts under Section 3 of this Act. Penal Code It is a criminal offence to do anything to insult the modesty of another and/or intrude upon the privacy of another under Section 509 of the Penal Code. Assaulting someone (even something as simple as a slap counts) or attempting to assault is also a Penal code offence. Domestic Violence (Amendment) Act 2017 Committing any form of violence against a spouse amounts to domestic violence, which is an offence under this Act. Note that following a spouse around to stalk him/her is not considered a form of domestic violence- the current position is essentially the same with non- married partners. So.. if there are all these other laws, why do we still need a specific law to prohibit stalking? Because prevention is better than cure You may recall the fairly recent murder-suicide incident involving a man and his ex-wife at a law firm in KL. The man had reportedly stalked his ex-wife multiple times prior to gunning her down. Unfortunately, this wasn’t an isolated incident. In 2013, another Malaysian man stalked his ex-wife before hiring gangsters to chop her thumb off: These real life incidents tell us that stalking often precedes more violent forms of crimes such as serious physical attacks and even murder. To drive home the point further, take this scenario for example: SCENARIO 1 Every morning without fail, Robert stalks Madonnna as she commutes to work. He says nothing nor does anything to her. All he does is follow her to the building where she works. Madonna is terrified that he might hurt her one day, but there is nothing the police can do. Robert isn’t committing any crimes by just following Madonna around. SCENARIO 2 One day, Robert decides to do something different. He stalks Madonna to work as usual, but this time he starts running towards her with a knife while yelling “I’m going to kill you!” and stabs her. He has committed a crime by stabbing her. To further explain the above scenarios: Scenario 1: Robert following Madonna is not a crime even though Madonna feels threatened Scenario 2: Robert stabs Madonna and this is a crime but...it’s too late now The above scenarios are exactly why we need to have laws that allows stalkers to be arrested before they can go on to do any actual or further harm. [READ MORE: A Malaysian stalking victim tells us why the PDRM couldn’t help her] For now, what should you do if you’re being stalked? Although the police cannot arrest stalkers merely for following you around, it may still be worth making a police report as you never know which crimes may have been committed in the course of stalking. In Malaysia, there are 2 types of police report that can be filed: action report cover report An action report requires the police to investigate a case. On the other hand, a cover report is made just to put the case on record without asking the police to take action. “Our advice would be to make a police report regardless of how the case proceeds. Just making that police report could potentially be a deterrent against stalkers.” – Heang Lee [emphasis added] Always remember that no matter how bad the situation is, you’re never alone. Even though stalking is currently not a crime, victims of stalking can also reach out to WAO for additional assistance through the following channels: Hotline: 03- 79563488 (Mon to Sat 9am-5pm; extended hours on Tues, Wed and Fri 7-10pm) SMS/ Whatsapp: 018- 988 8058 (24 hours) On top of that... You can help change the law Jurisdictions like California (since 1990), UK, India and Singapore have passed laws to criminalised stalking. If you’re in support of Malaysia doing the same, WAO recommends informing our lawmakers by: Tweeting the law minister @Liew_Vui_Keong Sharing this article with the hashtag #makestalkingacrime Also, if you’ve ever been a victim of stalking, you may also want to consider sharing your story to help others find the strength to overcome their situation."
"A Malaysian stalking victim tells us why the PDRM couldn't help her When someone mentions the word “stalking”, you are likely to imagine a woman in a dark parking lot with a guy walking behind her. Some people might think that it’s romantic while others might find it creepy and some people might find it comedic. This all depends on the context but for an actual victim, it’s a horrific experience that they would never want to relive. The Women’s Aid Organisation (“WAO”), a Malaysian NGO, estimated that over 250,000 domestic violence victims were stalked by their abusers. Do bear in mind that the estimates given by WAO only covers domestic violence victims, which in the Malaysian context means spouses. However, stalking can encompass non-intimate relationships as well, going all the way to the point of having complete strangers stalk you. This means that the actual numbers for stalking is likely to be much higher than 250,000. What’s even more frightening is the lack of laws criminalising the act of stalking. You read that right, it is not illegal to stalk someone in Malaysia. While there are laws that criminalise acts that typically accompany stalking, these laws require some form of harm to occur first before action can be taken. It requires the stalking situation to escalate before the victim has methods to de-escalate it. For an example, it’s an offence to attempt murder under Section 307 of the Penal Code. Imagine how angry people would be if this offence was taken away and the police can only act once the would be murderer successfully murders someone. We’ve covered the technical aspect of the law and the efforts that certain NGOs have been putting in to criminalise stalking, which you can read about here. To highlight why criminalising stalking is important, WAO arranged an interview where we spoke to Alicia, a victim of stalking. The names in this story have been changed for privacy purposes. First, he rescued her “He was charming and knowledgeable, it felt like he was trustable.” – Alicia, stalking victim, in an interview with ASKLEGAL Alicia appears to be in her thirties. We exchanged pleasantries and she seemed extra alert; as if she was expecting something to happen. The interview started off intense, with Alicia telling us how she met Kevin. Prior to this stalking incident, Alicia was a well-known and respectable figure in her industry. She rubbed shoulders with Malaysia’s elite and had their trust. This was when Kevin approached her with what seemed to be well meaning advice. He exposed the shady dealings of the company that she was heading and showed her how the company set her up to take the fall should anything go wrong. At that point, Alicia looked into it and realised the magnitude of what was going on. She quickly exited the company and, due to the heads up that Kevin gave her, Alicia thought that he was a trustworthy person. Whatever his motive was for giving her that information, their bond was forged. She found him to be a trustable man, respectable and convincing. It didn’t hurt that he was reputable and well-spoken. They started dating and established a company together to run a cause that Alicia felt passionately for. On the business end, things went well (they were even sponsored by a government-linked company). However, on the dating end, Alicia started to pick up signs that alerted her to the fact that Kevin might not be what he seems on the surface. Then, the emotional abuse started Kevin would always think that Alicia is cheating on him and find it reasonable to monitor her every move. He would even go to the extent of dictating that she is not allowed to sit next to another guy...even on flights. Alicia describes this side of Kevin as delusional. This soon escalated to violence...but not at her. “In the beginning, this was how he was. He would tell me that he can’t hit me but he can hit himself. So he would bang his head on the steering wheel, use his shoe to hit his head. I didn’t buy it because I don’t believe in violence.” – Alicia, [emphasis added] Alicia says that in the beginning, he wouldn’t assault her but he would throw things in her direction, for example, throwing a printer at her while they were in a client’s office. She described this behaviour as him trying to assert his power over her, to intimidate her. If you think that Alicia should have read the signs because they are that clear well, she did but the only problem was… She thought she was alone and felt ashamed As expected from the pattern of abuse, Kevin soon started to physically abuse Alicia. He would blame her for saying the wrong things and then make a complete 180 and apologise for his behaviour. Present at the interview was also Alicia’s social worker who explained to us that this is how the cycle of abuse works: “The cycle of abuse is for the abuser to build the tension, abuse the victim, and then apologise for it.” – Alicia’s social worker There were many incidences where Kevin physically abused Alicia and left her with blurred vision or multiple bruises. All these incidences made her desperately seek for a way out but the problem was Alicia thought that she was alone and there was nobody that she could turn to. She also felt ashamed over the marks that he would leave on her body, going to the extent of hiding her face from her mother and telling everyone that she fell down. Alicia started avoiding him, even leaving for an extended trip back home to escape from the situation back home. However, it seemed like the things she did to avoid him only served to incense him. At this time, Kevin’s started behaving more and more irrationally, stalking her, and even going to the extent of scaling her apartment walls just to get a glimpse of her. But this isn’t the worst of it... His stalking went into overdrive Things got to the point where in one instance, Alicia would even stop telling anyone what her plans were. But he somehow always found out. For instance, as she was leaving a business appointment that she had told no one about, she opened the door and...Kevin was right there. He tried shoving his way but she quickly slammed the door shut and informed the manager that her stalker is here. The manager graciously allowed her to stay in his room while she called the police. On top of her emotional ordeal, Alicia was worried for her life and it didn’t help when Kevin started writing her “love notes” which he convinced the receptionist to keep passing to her. He would also stalk her friends and social worker in a bid to scare them off and cut off her contact to anyone else, making him the only person to turn to. If that isn’t creepy enough for you, here’s another story. In order to avoid Kevin, Alicia changed her jobs. When we spoke to her, she had already gone through 5-6 jobs in about 3 years. Somehow, Kevin managed to track her down each time, sending her messages that indicate that he knew what she was up to at that exact moment. “He would send me messages that showed that he knew my work schedule. Telling me that I must be heading home now because my meeting has ended. He even showed up at my workplace once and I ran from him. I also found out that he bribed the security guard at my apartment to inform him of my whereabouts.” – Alicia, [emphasis added] The severity of it forced Alicia into hiding where she basically jumped around houses for awhile and wouldn’t leave her home without friends or family. If you’re thinking that she should have called the police and let them deal with Kevin, you’re not wrong. The police were called multiple times but… Nothing came out of it. Alicia sought help from the police many times and even went together with her social worker but the responses that they received were rather...lacklustre. Alicia recalls the first time she sought police protection: “We were just done having a meal and I wanted to leave but he refused to let me go...he took away my car keys. So, I started walking to the closest police station. When I reached the station, I approached an officer and told him what has been going on. At that point, Kevin entered the station and I cowered behind the officer because I was terrified. Kevin told the officer that I was crazy and spewing nonsense and that he was my boyfriend. Upon hearing this, the officer turned around and told me to settle the problem with Kevin. He refused to intervene despite the fear I was showing because he claimed that this is a domestic issue.” [emphasis added] Aside from this incident, there are also several things that the police have told Alicia and her social worker when they approached them for help: “He (Kevin) obviously love you so much, why do you want to leave him?” “We can’t do anything because we have to follow procedures.” “Did you have sex with him? How many times did you have sex with him?” “This is a domestic issue that you should mediate with me. We can’t intervene.” Before you start blaming the police, we have to highlight that stalking is a tricky issue to navigate. As mentioned at the start of this article, following someone around is not a crime even though it may cause emotional and mental harm such as distress and fear. Exacerbating this is the fact that without laws criminalising stalking, it’s quite difficult to bring about a change in mentality. [READ MORE: Malaysia has NO LAWS on stalking...but here’s how you can change things] Despite this, Alicia and WAO persevered. They painstakingly compiled every single correspondence that Kevin ever sent and sent it over to the police in order to substantiate their case. After reviewing the documents and realising that severity of the issue, the police followed up on the matter and even called Kevin in for interviews. However, given how there were no laws on stalking, Kevin could still continue to stalk Alicia and he once even threatened to kill her: “It was said in the middle of a very normal setting; in a mall, with people around us. He (Kevin) looked at me while smiling and calmly said, “There is no point in you running, you know I will find you and I will kill you”, this was the chilling part; that he was able to say it so calmly.” – Alicia [emphasis added] The good news is after countless switching between jobs and houses, Alicia appears to have avoided him... But she is always on the lookout It took leaving her industry, 2 years, and about 3-4 job changes for the incessant messages to taper off. She still gets them every once in awhile but for the most part, the horizon seems clear. Alicia explains that she does not feel fulfilled in her current job because it’s not her true calling but she does what she must in order to continue on with her life. We asked if she is worried about ever bumping into him again and she tells us that: “I am always on the lookout for him. Everywhere I go, I scan the people there. I scan the streets for his car. If I notice his car’s make and model, the first thing I do is check the number plate. I am always ready to carry out the steps that I rehearsed with my social worker if I ever bump into him. The first thing to do is to get away from him. Get somewhere public. Then I call her, I call the police. I once saw him in a shopping mall. I recognised him immediately from the shape of his back and the shirt he was wearing. I turned around and left the mall. I was lucky he didn’t spot me.” Listening to her relate her experience to us was harrowing enough; we can’t imagine the strength needed for her to agree to this interview with us, to replay memories that are best left untouched. However, she agreed to share her story with us with hopes that the government would see fit to introduce laws that would criminalise stalking and protect people like her. She hopes that by sharing her story, she would be able to help other stalking victims understand that they are not alone. Help can be found from the various NGOs across the country, this includes the Joint Action Group that WAO is a part of. To contact WAO for assistance or further information: Hotline – 03 7956 3488 Whatsapp (24 hours) – 018 988 8058 If Alicia’s story has given you a clearer picture on the state of stalking in Malaysia and you would like to see a change in the laws, make your voice heard by: Tweeting our current Law Minister @Liew_Vui_Keong Sharing this article with the hashtag #makestalkingacrime Sharing your stalking stories with us in the comments We ended the interview by asking Alicia how she would describe Kevin now and she said: “A monster.”"
"Is it a crime to pass the VIP lane without a security check in Malaysian airports? If you’ve been keeping up with the latest political drama, you might be familiar with the sandals incident involving Dewan Negara (Senate) president Tan Sri S.A. Vigneswaran. On the night of 14 November, he’d apparently been stopped by officers stationed at the VIP lanes of the Kuala Lumpur International Airport (KLIA) for not following the dress code, and the security recording also shows he proceeded into the VIP lobby area without a proper security check. There was some political squabble after that which we won’t get into, but the last we know is that the airport management lodged a police report against Vigneswaran. Selangor police chief Comm Datuk Mazlan Mansor has confirmed that the case is being investigated under the Protected Areas and Protected Places Act 1959 (PAPPA). Most of us may not even know what rules VIP lanes have before this, much less that we had a law covering it at all. Are these rules just airport policies, or is breaching them an actual crime? Here’s what the PAPPA contains about airport VIP lanes. Airport VIP lanes have special security measures imposed by law Airport VIP lanes are apparently designated as one of many “protected places” and “protected areas” in Malaysia under Sections 4 and 5 of the PAPPA. They sound like almost the same thing, but they differ mainly in that “protected places” are where unauthorized people are not allowed to enter, but “protected areas” cover areas where a person’s movements and actions are controlled as long as they’re within the area. In short, you could take it that: “Protected places” = “Authorized Staff Only” places and exclusive areas, like a VIP lounge “Protected areas” = the area past the security scanners and customs The PAPPA says that the Minister of Transport can issue an order to declare an area as “protected” if special security is needed in that area. This order operates differently from most regulations issued by the government, which are usually published in the Federal Gazette for public viewing before they can take effect (like smoking regulations). Instead, the Ministry will only notify people who need to know, like the people at airports who will be enforcing security. Breaking the rules in protected places is a crime Any person in those areas must comply with directions given by authorized officers as to where they can go and any other regulations on their behaviour. Authorized officer also have the power to detain and search people who enter protected spaces. If anyone fails to comply with these directions, they can be kicked out by authorized officers, and/or be charged with a criminal offence. Locations like airports are quite clearly designated as “protected” because security is a big concern in these places, so while any failure to follow the rules in these cases could be as small as a misunderstanding, it could also involve national security… Anyone who fails to comply with the rules behind “protected areas” and “protected places” can be found guilty of an offence, which makes them liable for up to 2 years in jail and/or a fine of RM1,000. Always cooperate with airport security We all appreciate the value of feeling safe at airports, and also when we’re finally on our flight. That assurance is made possible with stringent measures to check for potential threats, and it comes with cooperating with security personnel to make sure everything is in order. In line with that, offences under the PAPPA are considered “seizable” and “non-bailable”, which basically means that offenders can be arrested without a warrant, and normally, the person stays in lockup while waiting to appear before a court, and they’re not allowed bail. [READ MORE - How does bail work in Malaysia?] A further interesting trivia is that if someone tries entering a “protected area” or “protected place” and refuses to cooperate 3 times, the officers on guard are allowed to kill them… PAPPA - Section 9 “Any person who attempts to enter or who is in a protected area or a protected place and who fails to stop after being challenged three times by an authorized officer so to do may be arrested by force, which force may if necessary to effect the arrest extend to the voluntary causing of death.” For the most part, this is not something most of us will ever encounter, but it’s hard not to appreciate of the gravity of the situation here because this power is rarely ever given in our laws - even to the police. [READ MORE - When can you perform a citizen's arrest in Malaysia, and how do you do it?]"
"5 things Malaysians share on social media, but shouldn’t Whether it’s a once in a lifetime experience meeting a celebrity you admire, or eating out at a fancy place where the food looks so beautiful it shouldn’t be eaten - we all look for the great moments in life to feature on our social media, even as some of us may choose to filter all of the lows out. But everyone also has concerns about how they and their family (especially the kids) should be staying safe online - are we oversharing our lives on social media these days? Thanks to constant reminders and public service announcements from our banks, we no longer need some Captain Obvious to save the day and inform us that we shouldn’t share our IC or banking information online. While that may be the case, we can keep ourselves safer by looking out for some legal and, especially, security issues that are often overlooked or ignored. In that regard, we’re highlighting 5 common types of posts you see shared on social media, and how they are either illegal, or could compromise your online safety. 1. The Name n’ Shame You probably didn’t expect to see that shame posts, as common as they are on Facebook, are something people should think twice before posting and even sharing. The reason? What you are sharing could be considered defamation - both recognized as a civil wrong (private dispute between two people, aka a lawsuit) and a criminal offence in Malaysia. But even if that nasty person you encountered truly deserves to be called out and punished, there is a better way to bring justice than to publicize incidents on Facebook - reporting them to the authorities. If your intention is merely to shame and bring ruin to their reputation, then you could actually be held liable for defamation - even more so if what you were spreading turns out to be untrue. Usually, this gives the person you’ve shamed the right to sue you for compensation, but they also have the right to make a police report, as defamation is listed as a crime under Section 499 of our Penal Code - which is exactly what happened to some university students who were spreading rumours about another student. So…the better thing to do about these !@#$% people is to report them, who in your books might include inconsiderate double parkers and people who book parking spaces by standing in them. [READ MORE - How does defamation work in Malaysia?] 2. “Off for my dream vacation!” posts You’ve finally put aside enough money and carefully planned your next vacation! (or balik kampung to mengundi). The day of your flight approaches and when you finally get your boarding pass, you may be tempted to celebrate this occasion by snapping a picture of the boarding pass and sharing it on social media. Except you shouldn’t do it… for safety reasons. Because while your personal documents like your IC contain information that is clearly more sensitive, even innocent details on your boarding pass can help a hacker gain access to your booking details and even modify them. Some airlines only require a few details from your boarding pass for you to access their bookings menu online. Upon access, anyone can see details like your departure time, seat number, and even your ticket number and frequent flyer info. If you do have to share your boarding pass online, make sure you always blur out all the sensitive details, as well as any barcodes, which can be easily read with software available online. Sure, this information is quite harmless when kept among friends, but anyone who might have criminal intentions also gets to plan very nicely around this information. This is not to mention any burglars who might plan a break-in, knowing full well you are off on a retreat, especially if you have a habit of checking-in at your home address... 3. “Bobby has checked-in at…” posts Would you say that checking-in your location wherever you go is oversharing? If you value your safety, it might be best not to leave a public trail of your daily routine online. Of course you have every right to share your location...but if it opens you up to a risk, it’s best to be prudent about whom you share your routine and habits with, especially if your exact location can be tracked down in real time. Some social media users apparently share their exact home and work addresses publicly when they check-in using location services. Yet again, while this information is usually safe among friends, sharing it publicly is probably not very safe given that stalkers, robbers, and other unsavory people can also use it to target you. While some of us believe we have the right to post what we want (who does it even harm right?), taking precautions is better than taking a risk we don’t have to. If you’re the kind of social butterfly who frequently shares their location, you could consider only sharing it in private messages with friends, or maybe only mark the place after leaving it. 4. “PM me if interested!” Online platforms make so many things easier, including starting your own side-business supplying goods to others. A lot of us have sold items on social media before, where we usually put up a post advertising what we have, the price we’re offering, and a short sign-off: “PM me for more details”. If you used that kind of post for your online business, it could have gotten you into trouble with the Consumer Protection (Electronic Trade Transactions) Regulations 2012 since 3 August 2017. The law was actually in place since 1 July 2013, but the Consumerism Ministry gave traders a grace period to adapt. It basically says that online sellers need to include the following information when listing their products and services: a) The name of the seller (whether a person, business, or company name) b) The business or company registration number (if any) c) The contact details of the seller or business (e-mail, telephone number, address) d) Descriptions of the main characteristics of the goods or services provided e) The full price of the goods or services, including transportation costs, taxes, etcetera f) The methods of payment accepted g) Any terms and conditions attached h) The estimated delivery time Unless you’re making a one-off sale like an item you want to get rid of, hiding any of this information from customers is an offence (which you can report by calling 1-800-886-800). 5. Posting photos of the kids Pride and joy of parents, who could resist sharing the cute and funny moments with their young children among friends? Not many. It’s not exactly a crime to share pictures of your own children online, but it can be a concern especially if you’re not familiar with how to safeguard their privacy by tweaking the privacy settings on social media posts. Some Malaysian parents have actually found pictures of their infant children uploaded to pornographic sites. And if photos taken around the home have location tags on them (which will indicate where they were taken), it may give away where the child lives to sexual predators out there. Misusing photos of children is certainly recognized as a crime under the Communications and Multimedia Act 1998, but when the damage is done and the child is exposed, bringing the people responsible to justice may not return the feeling of safety. Once again, the privacy settings on your social media account are ever useful here. Our former Women, Family and Community Development Minister recommended keeping kids’ photos entirely off the internet, but if you wish to share them, do exercise extreme caution online. You should also teach your kids how to safeguard themselves online from the day they start using social media, as predators use all sorts of tactics, and kids are that much more vulnerable. In short, use your privacy settings well and don’t simply accept friend requests! With many safety issues on social media, the best way to control who has access to your information is by limiting access to your friends only. But for that to be effective in the first place, you have to be very selective about who you accept to be friends on social media! A good guideline is to only accept people whom you know in real life; but if you use social media to expand your network, make sure you can look into who they are and what they are contacting you for. There are a lot of incidences of “catfishing” on social media where some people use a fake online identity to con people of their hearts and their money, often by gaining access to compromising pictures and then blackmailing their victims."
"5 points about ICERD that Malaysians are disagreeing over [Versi Bahasa Malaysia di sini] Lately, the latest topic on everyone’s lips (and keyboards) is ICERD – the International Convention on the Elimination of All Forms of Racial Discrimination. Briefly put, ICERD is a convention (or treaty) by the United Nations that aims to promote racial equality throughout the international community, which is oddly doing the opposite as both politicians and regular Malaysians argue over whether or not Malaysia should sign it. While reading the comments in a local news article would give you an idea of the arguments in support and in opposition to ICERD, perhaps the best summary of the concerns are in regards to the status of Article 153 of the Federal Constitution and the status of Islam as Malaysia’s state religion. A petition against ICERD on Change.org lists down possible consequences if Malaysia became a signatory: Coupled with news report about PM Mahathir stating that implemantation in Malaysia would be impossible, plans for an Anti-ICERD rally in KL on December 8th, and other news links that would confuse anyone who’s late to the party; we’re going to scale things back a little and start from the basics – What ICERD is, and what it’s meant to do (on paper). [READ MORE: How to organize a legal rally in Malaysia] UPDATE: On November 23rd 2018, the government announced that they will not be ratifying ICERD. 1. Laws are introduced or changed As mentioned earlier, ICERD is an international treaty; it provides a framework of conditions for countries to follow if they choose to sign it. This means that the provisions (the “laws” within ICERD) can only apply to Malaysia after the government signs it and ratifies it – ‘ratify’ meaning to make it officially valid or recognized. After a country signs, they must then review their existing laws and policies to meet the requirements set by ICERD which, as evidenced in the name itself, is to eliminate racial discrimination. Article 2(1)(c) of the International Convention on the Elimination of All Forms of Racial Discrimination Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists; The main responsibilities of a signatory country (referred to as State Party in the document) can be found in Article 2 of ICERD, summarized as: Not supporting or defending discrimination by any person or party Change or remove existing laws that create or support racial discrimination Introduce laws or take actions to end racial discrimination Encourage or introduce measures that bring races together Take special measures to develop and/or protect some racial groups with the purpose of guaranteeing them equality As an example, after Australia ratified ICERD in 1975, the Australian Parliament passed the Racial Discrimination Act in order to satisfy these new obligations. 2. Every citizen will have equal rights to education (and other things) Part of ending discrimination is to ensure that everyone is guaranteed equal rights. This essentially means that certain “basic” rights need to be available to every citizen on an equal basis. Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (in part): In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights... Article 5 then outlines a whole bunch of these rights, including 5(d)(vii) – The right to freedom of thought, conscience and religion 5(d)(v) – The right to own property alone as well as in association with others 5(e)(v) – The right to education and training This is perhaps the main focus of contention regarding Malaysia’s signing of ICERD. 3. Hate speech will be criminalized Hate speech is generally defined as speech that attacks someone for being different, whether by race, religion, ethnicity, or other factors. For ICERD, hate speech is mostly confined to the context of race. So, in addition to encouraging nations to do away with racially discriminatory laws, ICERD also requires signatory countries to adapt or adopt laws that would make it a crime to create, share, or support hate speech. Article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; This also extends to making groups or gatherings that promote racial hatred illegal… and participation a criminal offence, of course. However, certain countries had a tough time balancing freedom of speech and the prohibition of hate speech. For example, when Norwegian courts acquitted a known Neo-Nazi for a racially charged speech against the Jewish community on the grounds of freedom of speech – it was later decided that this action violated the provisions of ICERD. But wait, who decided this? Well, that brings us to the next point… 4. An independent organization keeps signatory countries in check Okay, this is going to be a little confusing. The implementation of ICERD is governed by the Committee on the Elimination of Racial Discrimination, or…. CERD. Yup. CERD oversees ICERD. #icerdwhatyoudidthere Basically, CERD is made up of a group of independent experts that monitor the implementation of policies by signatory countries and reviews complaints by individuals or groups against their countries. Article 8 of the International Convention on the Elimination of All Forms of Racial Discrimination (in part): There shall be established a Committee on the Elimination of Racial Discrimination (hereinafter referred to as the Committee) consisting of eighteen experts of high moral standing and acknowledged impartiality elected by States Parties from among their nationals... In essence, signatory countries are required to submit a report to CERD one year after signing, then every two years or when requested. If you clicked on the link to Australia’s Racial Discrimination Act in Point 1, it’s actually a report about how Australian officials “finally agreed to cooperate” and meet CERD over an overdue report and certain shortcomings in their implementation of ICERD; which includes some backtracking on the Racial Discrimination Act and other shortcomings in regards to racial equality. Here’s the link again. If a certain racial group or individual feels their rights have been infringed and not properly addressed by their nation’s government (or authorities), they can also make an appeal to CERD – but this can only happen if they’ve exhausted all local avenues. To bring back the Norwegian hate speech case from Point 3, the affected Jewish communities only brought the case to CERD after the case had gone all the way to the Norwegian Supreme Court, which didn’t decide the case in their favor. So what are the consequences if CERD finds a violation? In general, CERD will issue a report outlining their reasons and provide recommendations to fix the problem. However, in certain cases such as unresolved disputes between two countries, the International Court of Justice may get involved (Article 22) and consider CERD’s findings in deciding the case. In the interest of space, you can read an example here. For the most part though, signing ICERD puts a country at a higher level of standards and scrutiny, which may affect certain international objectives such as membership to UN agencies or councils. As an example, Amnesty International suggested that Australia’s agreement to meet CERD was related to the country’s inclusion into the United Nations Human Rights Council. 5. Countries don’t have to follow ICERD 100% While it’s logical to assume that signing ICERD means that a country will have to follow each provision to the letter, it’s not actually the case. The treaty provides some leeway for signatory countries to state reservations that prevent them from adopting it on a full scale, as long as these reservations don’t violate the objectives in the first place. The reservations are listed in the United Nations Treaty Collection, and some examples are: The United States of America – Allows “hate speech” as part of a Constitutional right to freedom of speech The United Arab Emirates – “The accession of the United Arab Emirates to this Convention shall in no way amount to recognition of nor the establishment of any treaty relations with Israel.” Thailand – Not obligated to interpret or apply ICERD provisions beyond the confines of Thai Constitution and law In the local context, The Malaysian Bar pointed out that Article 1(4) allows “special measures” for certain groups to be given additional protection for the purpose of putting them on an equal playing field. However, this should be discontinued once that objective has been achieved: Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved. This is again mentioned in Article 2(2) (in part) : States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms... However, whether or not this will play a role in addressing the concern of parties who are opposing ICERD remains to be seen, since... It’s still unclear whether Malaysia will adopt ICERD Incidentally, this isn’t the first time ICERD has come to the government’s consideration, as the previous BN-led government had looked into it twice – in 2011 and 2015. With debates coming in from all sides, it’s not certain whether Malaysia will leave the list of 14 countries that have not signed the treaty. UPDATE: Despite the announcement that the government won’t be ratifying ICERD, the Anti-ICERD Rally will still be talking place If you’re curious whether the Anti-ICERD rally is legal or not or if you’re considering to attend the rally, and you wanna know if it’s legal to attend, read our article on rallies here. Co-written by Arjun & UiHua"
"Malaysian law does not recognise refugees...so who are these people? Malaysia has always had conversations regarding refugees. In the 1980s, we had them with the Vietnamese. Currently, we have them with the Rohingyas. In many of these situations, especially with the Rohingya, it’s always been whether we should allow them into the country. However, a lot of these arguments are based on personal sentiments because legally speaking... There is technically no such thing as “refugees” in Malaysia Before we delve into that, let’s clear up some terms for you guys. There are essentially four terms that can be divided into two wide groups: Supported by their home government – expatriates, migrants Not supported by their home government – asylum seekers, refugees What these terms mean are as follows: Expatriate – someone who doesn’t live in their own country but we have come to associate this term with Westerners Migrant – someone who moves away from his home country for work, study, or family and still enjoys the protection given from his government back home Asylum seeker – someone who is not yet given a refugee status but is seeking asylum (protection) from other countries Refugee – someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The definition of a refugee comes from the United Nations’ Convention Relating to the Status of Refugees 1951 (“Refugee Convention”) and at this point, you may be confused because if the UN has given a proper definition of refugees then why isn’t there such a thing in Malaysia? Well, it’s because...Malaysia did not ratify (sign) the Convention. Let’s take a quick look into international law to understand what a convention is and what does it mean to ratify one. The UN is basically an intergovernmental organisation that passes conventions or treaties that are meant to provide for a plethora of things including but not limited to promoting human rights. While Malaysia is a member of the UN, the Malaysian government did not sign the 1951 Refugee Convention. This means that the Malaysian government did not agree to take part in UN’s Convention to provide for refugees. In addition to not signing the treaty, Malaysia similarly does not have laws in place to recognise and provide for refugees. TLDR; technically refugees don’t exist in Malaysia because there are no laws that give them that recognition. It’s the equivalent of going to a mamak and asking for sashimi; it doesn’t exist. While you may think that this is just lawyers and their play on words, there is actually a significance importance that stems from this lack of recognition of refugees. They are treated as illegal immigrants A migrant is someone who moves away from their country for many reasons. An illegal immigrant is someone who may move away for the same reason but they do it without the proper documentations or through the proper channels. A refugee fleeing from their home country in panic would definitely not being using the proper channels and most of the time, they leave with only the clothes on their back. Therefore when they arrive in Malaysia, they would be entering the country undocumented and would be regarded as illegal immigrants under the Immigration Act 1959/63. As “illegal immigrants”, the refugees are mostly stuck in limbo. They are unable to work or study locally as they possess the necessary papers for it. Aside from that, these refugees are also at the risk of detention and deportation. Which leads us to stories of the horrors that they would have to face in the detention centres: “Those who had been detained say they did not get adequate food, water or healthcare, that many inmates developed skin and lung infections, and the sick are usually not isolated, leading to the spread of contagious diseases.” – as quoted from Reuters, 30 March 2017 As a matter of fact, the refugees aren’t even legally considered refugees until they have registered with the United Nations High Commissioner of Refugees (“UNHCR”). The process of this registration is exceedingly slow due to the huge number of asylum seekers coming into the country. However, registration is probably the best form of protection that these refugees would be able to get as it gives them a form of identification document to show to the authorities if they are stopped. Before you rejoice over this form of protection, do note that... They can still be deported The identification document does not stop a refugee from being deported; it may just help them from getting detained. “UNHCR identity documentation provides a level of protection which may reduce the risk of arrest...” – quoted from the UNHCR site as of 16 November 2018 The official UNHCR site mentions that the issuance of the UNHCR card is to indicate that the bearer of the card is under the protection of the UNHCR. Aside from reducing the risks of arrests, it will also provide the refugee with limited access to healthcare, education, and other services provided by UNHCR and its partners. You might be left wondering why Malaysia doesn’t have any laws to safeguard the rights of these refugees but the good news is… This might change The recently elected Pakatan Harapan government has promised to ratify the 1951 Refugee Convention in their manifesto. Under Promise 59 of the manifesto: “The Pakatan Harapan Government will also ratify the 1951 International Convention on Refugees so that refugees who escape from war-torn countries and arrive in Malaysia are given proper assistance” – as quoted from the Pakatan Harapan Manifesto Whatever your position is on the refugee position in Malaysia, having a set of laws in place would allow for a more cohesive approach as opposed to the current status quo where things are left in limbo."
"Is it illegal for Malaysian shops to play music without a license? If you’re not already sitting in your favourite cafe right now, you probably remember the experience in the back of your mind. The smell of coffee (or tea), the right atmosphere to your liking, and that background music of tunes you love. The drinks aside, a big part of why you love being there in the first place might actually be the kind of music they play, setting just the kind of atmosphere you enjoy. What you might not know is that you’re listening to the sounds of...thievery. Businesses need to buy a license from the music creators You might already know that music is copyrighted material and is owned by the people who created that music together. So, if anyone else wants to use the work, the creators have to be paid a licensing fee to “buy permission” to use the work, and reward the creators for their creation as well. [READ MORE - How does copyright work in Malaysia?] Our copyright laws outline certain situations, called “fair use”, when the public is allowed to use copyrighted material, such as for critique and educational reasons. But businesses clearly use music for commercial purposes, so unless the business composed and played that music by themselves, the copyright holders need to be paid. You can find out more about “fair use” in our other article linked below. [READ MORE - Is Instagramming movies in the cinemas considered ""fair use""?] Normally, a music playlist will consist of songs from various artists and labels; which means that, by extension, you would need to get a license from each and every copyright holder whose work you play in your premises. You would be committing copyright infringement and be subject to legal action otherwise. [READ MORE - Is stealing ideas illegal in Malaysia?] It can be really troublesome to get the rights for every song you want to play in your cafe, but there’s actually an easier way to handle this. You can just get a license from Music Rights Malaysia Music Rights Malaysia (MRM) acts like a central body which is supposed to make sure the right creators get paid when their work is used. They’re empowered under Section 27A of the Copyright Act as a “licensing body” - essentially taking care of licensing for their members. You can find a list of their tariffs for at their website, but here’s a direct link to their prices for 2017-2018. They have different rates for different sizes of businesses, from airplanes, to hotels, cafes, karaoke centres, and even concerts and road shows. You may want to check which artists MRM represents, though, as you can still get in trouble if you’re using copyrighted material from creators who they don’t cover. If you need to find out more about licensing with them, you find their list of FAQs here, or contact them directly. You might not need a license from MRM if you’ve already paid another licensor A lot of people may not realize that it’s illegal to play songs from personal streaming services like Spotify and YouTube for public events (unless you fall into the “fair use” exceptions, which we’ve covered here before). This means that even though you have a Spotify subscription for example, their terms clearly state that your Spotify is for personal use only, and you need to use another service called Soundtrack Your Brand if you want to play music in public. If you’ve paid a creator directly for licensing fees to use their work, you may not need to get another license from MRM - because you’ve already paid the creator what’s due, it wouldn’t make sense to make you pay the same fee again. However, this only applies if you only use material from the creators you’ve actually paid. So for example, if you’ve only paid to use Lady Gaga’s songs, you should not play anything from other musicians without getting a separate license for them. On the other hand, if you want to save on costs and also avoid any legal trouble, you could consider looking for royalty-free music online, which you won’t have to get copyright licenses for."
"Macam mana menguruskan kemalangan trafik di Malaysia 1. Tentukan jika anda mengalami sebarang kecederaan. Tentukan jika anda mengalami sebarang kecederaan atau pendarahan. Hubungi ambulans jika anda memerlukan bantuan perubatan dan jika boleh, buat pertolongan cemas ke atas diri sendiri sebaik mungkin (lebih baik jika anda miliki peti pertolongan cemas yang lengkap dalam kereta anda). Jika ada sebarang benda asing yang tercucuk di mana-mana bahagian badan anda, jangan sekali-kali mengeluarkannya kerana ia boleh menyebabkan pendarahan yang lebih teruk. 2. Periksa adakah persekitaran tempat kemalangan selamat Ambil perhatian terhadap persekitaran dan pemandu lain yang terlibat sebelum meninggalkan kenderaan anda. Jika anda berada dalam keadaan berbahaya ataupun ada kumpulan perusuh yang mendekati anda, anda dibenarkan di bawah undang-undang untuk mempertahankan diri sendiri dengan melarikan diri ke balai polis yang terdekat untuk membuat laporan (dan tak payah berhenti). [BACAAN LANJUT – If I get into a car accident, can I go to the nearest Balai Polis instead of stopping? (artikel Bahasa Inggeris)] 3. Ambil gambar kerosakan pada semua kenderaan terlibat, dan kecederaan yang ditimpa oleh semua pihak Langkah pertama yang perlu diambil adalah memastikan bahawa semua pihak terlibat selamat. Jika ada pihak yang cedera, maka pihak ambulans perlu dihubungi dengan segera. Bergantung kepada situasi, ambil gambar kawasan kemalangan SEBELUM mengalihkan kenderaan anda ke bahu jalan. Tetapi janganlah ambil risiko bila mengambil gambar jika kawasan kemalangan nampak tidak selamat. Anda harus mengambil SEMUA gambar kenderaan yang terlibat (pastikan nombor pendaftaran kereta nampak jelas dalam gambar), dan juga gambar kecederaan yang ditimpa oleh pihak terlibat. Pastikan anda mencatat masa dan lokasi kemalangan. Nota: jika kemalangan yang dialami nampak serius (contohnya, kedua-dua kereta musnah), hubungi pihak polis dan tunggu sehingga mereka sampai. 4. Alihkan kenderaan anda ke bahu jalan Apabila mengalihkan kenderaan anda, pastikan lampu kecemasan dipasang semasa anda mengalihkan kenderaan ke bahagian paling kiri jalan (ataupun lorong kecemasan). 5. Kongsi maklumat dengan pemandu-pemandu lain Pastikan maklumat di bawah dikongsi dengan pemandu-pemandu lain yang terlibat dalam kemalangan: Nombor pendaftaran kereta Jenis, warna dan tahun keluaran kereta Nama, alamat dan nombor telefon pemandu Nama, alamat dan nombor telefon pemilik kenderaan (jika ianya berbeza dari pemandu) Nombor kad pengenalan dan lesen memandu pemandu kenderaan terlibat Ambil juga maklumat penyaksi di tempat kejadian jika boleh. 6. Buat laporan polis dalam masa 24 jam Sila ke balai polis berhampiran yang mempunyai cawangan trafik untuk membuat laporan. Biasanya ia merupakan ibu pejabat daerah, namun anda mungkin perlu pastikan balai polis yang terletak di lingkungan tempat kejadian. Anda mesti membuat laporan polis walaupun anda tidak mahu menuntut insurans untuk memastikan tuntutan pihak ketiga tidak diberi kepada mereka yang menukar cerita. Jika anda mempunyai alasan munasabah untuk tidak melaporkan kemalangan dalam masa 24 jam (misalnya anda berada di hospital disebabkan kecederaan), pihak polis tetap menerima laporan anda. [BACAAN LANJUT – Bolehkan anda membuat laporan kemalangan kepada PDRM selepas tempoh 24 jam?] 7. Hubungi pihak insurans anda dan buat tuntutan jika perlu Ada 4 jenis tuntutan yang boleh anda buat: Tuntutan OD (Own Damage) – tuntutan terhadap kenderaan sendiri melalui polisi insurans anda Tuntutan KFK (Knock For Knock) – tuntutan terhadap kenderaan sendiri melalui polisi insurans anda tanpa menjejaskan NCD (Diskaun Tiada Tuntutan/Non Claim Bonus) Tuntutan Pihak Ketiga (Third Party) – tuntutan terhadap pihak yang terlibat dalam kemalangan bagi kenderaan anda Tuntutan Pihak Ketiga Untuk Kecederaan (Third Party Bodily Injury) - tuntutan terhadap pihak yang terlibat dalam kemalangan bagi kos perubatan Ada syarat tertentu yang perlu anda patuhi bagi setiap jenis tuntutan. Sila hubungi pihak insurans anda melalui talian telefon, atau hubungi wakil insurans anda untuk bantuan. [BACAAN LANJUT – If you're hit by a driver with no insurance, this Malaysian agency can help... for FREE (artikel Bahasa Inggeris)]"
"If someone confesses to a crime in Malaysia, why must they still go to court? In a dimly lit interrogation room, a suspect sits on an uncomfortable metal chair while two police officers ask him a series of questions. They’re playing the good cop/bad cop routine, hoping they’ll get information for a murder investigation. As the hours pass by, the suspect finally breaks and says “ It was me, I did it”. He has confessed to the crime. While it’s common to think that after the confession, the next step is to chuck the suspect into jail and throw away the keys – basically case closed. The reality is actually more than different, because a confession may not be enough to find the suspect guilty in court. Under Malaysian law, a confession is merely a piece of evidence to be used against him, and it has to be weighed against all other evidences. A confession therefore, is not really different from from a murder weapon with the suspect’s fingerprints all over it. Only once the court decides that all the evidence is enough to prove the man’s guilty, then he can be sent to prison. So for a confession to be used in court….. The confession must be admissible under the law When it comes to presenting evidence in court, not all evidence will be allowed in court. Take for example a murder case involving a stabbing. The prosecution can’t simply present any random knife in court, they’d have to present the murder knife itself. It’s similar with confessions too, because not all confession statements will be admissible unless it falls under Section 17 of the Evidence Act which says: “A confession is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence.” The section simply states that a confession is nothing more than a suspect saying he admits to committing the crime. So if a suspect says: “I confess…...that I really love my girlfriend: = It’s NOT A CONFESSION “I confess that I was at the murder scene, but I was only standing there” = It’s NOT A CONFESSION “I confess I killed him, by stabbing him with a knife” = CONFESSION But as you may already know, even if a statement can be considered to be a confession under the law, the law usually has exceptions. A confession can’t be used if…. The confession was not obtained properly The exceptions we’re about to discuss exists to protect the rights of suspects, and also to make sure that the PDRM don’t abuse their powers. Because although a confession may just be a piece of evidence, it can carry quite amount of weight in relation to guilt. So these exceptions exist to ensure that a confession comes out willingly from a suspect, and it’s obtained very carefully. The first instance which would make a confession unusable is where... There was an inducement, threat, or promise To make sure a confession is given willingly and truthfully, there are certain things the PDRM can’t do. Under Section 24 of the Evidence Act, the PDRM can’t threaten, induce, or make a promise to the suspect to get a confession. This is because, it may result in the suspect confessing just to avoid harm or get an “easy way out”– which means the confession is at risk of not being true. This provision was applied in the case of PP v Naikan, where a man confessed to shooting a woman because he mistook her for a pig (don’t ask why, we couldn’t find out why either). During the questioning, he confessed, after being told “You had better tell the truth”, and the court said that was enough to become a threat. Therefore, his confession couldn’t be used. The confession was obtained as a result of OPPRESSION Malaysian law prohibits the use of a confession in court, if it was obtained as a result of oppression. I’m sure you would’ve seen in terrorism movies, interrogators using torture methods to obtain information from terrorism suspects. Unfortunately, using such methods isn’t just cruel but it can result in the suspect giving information just to avoid more harm – and again, the information may be at risk of being false. Following the case of PP v Dato Mokhtar Hashim, which involved an interrogation for a murder case which took extremely long hours, the court held that the long hours amounted to oppression. The court further said that oppression will be where the interrogation saps the free will of the person. So it doesn’t necessarily mean someone has to get beaten up, because depriving someone of food and interrogating him for hours would be enough. The confession was given to an officer below the rank of Inspector This provision has less to do with protecting the rights of the suspect, and more to do with ensuring appropriate conduct by the PDRM. Section 25 is pretty straightforward and it says, if a confession was given to a lower ranked officer (for example, a Sergeant), it can’t be used later in court. However if the confession was given to a police officer ranked Inspector or above, it can be used as evidence. The confession was given while in custody When a person is arrested or brought to the police station and then later confesses during an interrogation, the confession can’t later be used as evidence. If there’s an intention to use a confession of someone under police custody, they have to do so according to Section 26 which states: “...no confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence of a Sessions Court Judge or Magistrate, shall be proved as against that person.” So technically a confession of someone while in police custody can be used in court, but that confession has to be made in the presence of a Magistrate or Sessions Court Judge. A confession doesn’t always mean someone’s guilty Simply put, a confession is a strong piece of evidence and that’s why it’s allowed in to be used in our courts against a suspect. However, because a confession is capable of putting someone in jail – our laws ensure that confessions are obtained following strict procedures. If these procedures aren’t followed, a confession could be worthless as it can’t be used in court. In essence, it’s not always the case that if someone confesses to a crime, that person is guilty. A confession must be given voluntarily and freely."
"Bolehkah anda membuat laporan kemalangan kepada PDRM selepas tempoh 24 jam? Kami di sini meminta pembaca membayangkan pengalaman ngeri automotif seperti mengalami kemalangan langgar-lari, dan dilanggar kereta yang tidak memiliki insurans. Sekarang, cuba bayangkan sesuatu yang lebih teruk. Bayangkan anda berdepan dengan kemalangan jalan raya di mana anda cedera parah sehingga anda terpaksa dimasukkan ke dalam wad hospital selama beberapa hari. Tentu anda akan berfikir langkah seterusnya, iaitu membuat laporan polis. Semua orang tahu bahawa anda perlu membuat laporan polis dalam tempoh 24 jam setelah kemalangan berlaku. TETAPI, anda cedera parah dan tidak boleh membuat laporan – adakah pihak polis akan menerima laporan polis jika anda hadir ke balai polis setelah beberapa hari? Untuk menjawab persoalan itu, kita perlu meneliti undang-undang yang mengatakan bahawa laporan polis harus dibuat selepas kemalangan jalan raya. Anda MESTI melaporkan semua kemalangan jalan raya dalam tempoh 24 jam Undang-undang yang mengatakan bahawa laporan polis perlu dibuat terletak di bawah Seksyen 52(2) Akta Pengangkutan Jalan 1987 (APJ): “Dalam hal sesuatu kemalangan seperti yang tersebut dahulu pemandu kenderaan motor itu dan, jika terdapat lebih daripada satu kenderaan motor, pemandu tiap-tiap kenderaan motor itu, hendaklah melaporkan kemalangan itu di balai polis yang berhampiran sekali dengan seberapa segera yang semunasabahnya praktik dan dalam mana-mana hal dalam tempoh dua puluh empat jam selepas berlakunya kejadian itu...” – penekanan diberi. [BACAAN LANJUT – Kalau korang langgar kereta dari belakang, memang automatik salah korang ke?] Mungkin anda tidak sedar tetapi ada definisi khusus untuk “kemalangan” di bawah undang-undang: “”kemalangan” ertinya suatu kemalangan atau kejadian di mana kerosakan atau kecederaan dilakukan terhadap mana-mana orang, harta, kenderaan, struktur atau binatang;” – penekanan diberikan. (Fakta menarik – atas sebab yang tidak diketahui, kucing tidak dikira sebagai “binatang”.) Jika anda punya alasan munasabah, tak apa kalau lambat membuat laporan Tegasnya, Seksyen 52(2) mengatakan bahawa laporan polis mesti dibuat walaupun kemalangan yang berlaku adalah yang kecil. Ia juga dianggap sebagai satu jenayah jika kemalangan tidak dilaporkan, seperti mana termaktub di bawah Seksyen 119(1) APJ. Seksyen tersebut agak panjang dan teknikal, tetapi ringkasnya ia mengatakan bahawa jika anda tidak mempunyai alasan yang sah untuk tidak mematuhi APJ, anda dikatakan melakukan jenayah. Untuk kesalahan pertama, anda boleh dihukum denda sehingga RM2,000 atau dipenjarakan sehingga 6 bulan, dan untuk ulangan kesalahan yang sama, anda boleh dihukum denda maksimum RM4,000 atau/dan dipenjarakan sehingga 12 bulan. Namun begitu pihak polis tidaklah begitu kejam terhadap anda jika anda lambat membuat laporan polis. Mungkin anda mengalami kesukaran untuk bergerak, atau mungkin anda masih lagi terkejut dengan apa yang telah terjadi, ataupun anda mungkin masih tidak sedar diri dan sedang terlantar di hospital – pendek kata, jika anda cedera dan tidak mampu untuk membuat laporan polis dengan serta merta, ianya satu alasan munasabah. Ingat bahawa Seksyen 119(1) mengatakan bahawa ianya adalah satu jenayah jika anda lakukannya “tanpa alasan yang sah”, jadi jika anda punya alasan yang sah dan tidak dapat membuat laporan dalam masa 24 jam, pihak polis bersedia untuk membantu. Sebagai contoh, rakan penulis ini pernah lambat dua hari dalam membuat laporan polis, dan polis menerima alasan “trauma”nya. Satu lagi perkara....“settle” secara persendirian tidak diiktirafi oleh undang-undang Ramai di antara kita tidak melaporkan kemalangan kecil yang tidak mengakibatkan kecederaan dan kerosakan besar. Walaupun ianya biasa dilakukan, sebenarnya ia melanggar undang-undang jika anda cuba “settle” kemalangan (walaupun ada kontrak bertulis). Jika anda berhadapan dengan situasi di mana anda cuba berunding dengan pemandu terbabit, tetapi mereka menolak rundingan di saat akhir dan cuba mendapatkan wang dari anda, ia mungkin bukan satu “alasan yang sah” untuk membuat laporan selepas tempoh 24 jam. Pendek kata, pemandu yang satu lagi masih boleh membuat laporan polis setelah anda berdua sudah “settle” perkara ini – dan anda perlu berdepan pula dengan polis. Jadi adalah lebih baik jika anda membuat laporan polis untuk melindung anda dari tuntutan pihak ketiga di mana ceritanya boleh dipusing-pusing. Lebih-lebih lagi, anda tidak patut menyelesaikan kemalangan yang lebih besar daripada calar-calar kecil, melainkan anda mempunyai kepercayaan penuh terhadap pemandu yang satu lagi (tapi sejak bila kita percaya sangat orang yang kita tak kenal?). Ianya menyusahkan sebab anda mungkin akan diberi saman dan mungkin juga akan hilang Diskaun Tiada Tuntutan (“No Claim Bonus”), tetapi ianya lebih baik dari diugut untuk membayar ganti rugi kenderaan satu lagi. Lagipun, jika laporan polis tidak dibuat, pihak yang satu lagi tetap boleh membuat laporan mereka dan membuat tuntutan terhadap anda, dan dalam kes ini, anda memiliki peluang tipis untuk membela diri anda."
"What’s the difference between getting sued and getting charged in Malaysia? When someone gets on the wrong side of the law, you usually hear either one of two words used to describe what’ll happen to them - they either get “sued”, or get “charged”. For example, MP Chong Chieng Jen got “sued” by the Sarawak government, and DS Najib Razak got “charged” with money laundering. You see these terms all the time but you also might not know what’s the exact difference between them. What types of wrongdoings would you get sued for and what would you get charged with? Here’s 5 main differences between the two. 1. Suing is for civil cases, and charging is for criminal ones You only sue someone for what’s called a civil wrong - which includes torts like negligence and breach of contract. On the other hand, a person gets charged for a crime - which is generally more serious like injuring people, breaking-in, cheating someone… [READ MORE - What is a tort, can eat one ah?] [READ MORE - Zahid Hamidi was CHARGED with money laundering.... But what does ""charged"" mean?] You can see the main difference between civil and criminal wrongs as this: civil wrongs involve getting compensation for disputes, injury, and/or damages between two people criminal wrongs are considered committed against the public or even the country - it’s deemed serious enough that your actions might threaten the general public if you’re not stopped. As for why they are two different systems in the first place, it’s because… 2. One compensates victims, while the other punishes offenders When you sue someone in a civil case, it’s usually to get compensation for a wrong they did you, for example, if you find a snail in your drink, you’d sue the manufacturer for negligence. The focus here is on “compensate”, meaning that the wrongdoer will have to pay you for any losses or costs you had to fork out - what the law calls “restoring you to your previous position” (as if the wrongdoing didn’t happen). Criminal cases are more about maintaining a stable society by punishing offenders, and deterring other people from offending. It’s about stopping people who are threats to society, and showing a strong message that certain behaviours are unacceptable. For example, we lock rapists up and hang murderers to make sure they don’t continue harming others, and to deter other people from committing rape and murder. Criminal laws have severe punishments because they work as a deterrent from committing crime. To use a ridiculous example, we might have a lot more murderers out there if the maximum punishment for murder was only a RM50 fine. The government is the one that amends and updates the punishments for crimes from time to time, which brings us to the fact that… 3. Only the government can charge people with crimes (but you can still sue those people) One pattern you’ve probably noticed is that pretty much anyone can sue, but only the police can arrest a person and bring them to court to be charged. What happens after an arrest is that the police investigate and look for evidence to be brought to the Public Prosecutor - who is also the Attorney General. He has a lot of Deputy Public Prosecutors who act in his name, so he doesn’t actually have to personally charge every criminal suspect in Malaysia. The Public Prosecutor gets to decide whether a case should be brought against a suspect. [READ MORE - Who is the Attorney General and what does he do?] [READ MORE - How do criminal trials happen in Malaysia?] Some wrongdoings have both a criminal and civil factor, and so you might both make a police report AND file a lawsuit against the offender. For example, if someone breaks into your house, you would make a police report for house-trespass (a crime under Section 442 of our Penal Code), and you could also sue the burglar for trespass to your property (but only theoretically, since you are unlikely to get any money out of him). 4. They have different standards of proof required Whether you’re making a claim for compensation, or finding someone guilty of a crime, you’ll need enough evidence to prove your case. Because of the difference in severity, civil and criminal cases require different standards to be proven. In civil cases, you only need to prove your case to win a “balance of probabilities”. This means you only need to prove that your version of the story is more likely to be correct, or closer to the truth (this doesn’t mean that you can make stuff up). If you’re the one suing, you also hold the burden of proof (the responsibility to prove something) - because you can’t go around accusing people of cheating you unless you can prove it. For criminal cases, a case needs to be proven “beyond a reasonable doubt” since we’re talking about a slapping someone with a huge fine, a criminal record, and not to mention jail time. You could see “beyond a reasonable doubt” as being so certain that you’d happily bet your life savings. The burden of proof would lie with the prosecution (the government) as all suspects are considered innocent until proven guilty. 5. The penalties for getting charged are usually worse than being sued The person losing a civil case has to pay compensation for injuries and damages they may have caused. In most cases, they’ll not end up having to pay more than what the damage cost (although they may also have to cover the victim’s legal fees). They might also get an injunction slapped on, basically stating they’re not allowed to do certain things. For example, if they were sued for playing electric guitar solos late at night, the injunction will say that they’re not allowed to do so in future. As we’ve mentioned, crimes are usually dealt out by the government, and involves fines, maybe community service, jail time, and the death penalty for extreme cases. Although generally paying compensation is not as bad as criminal punishments, there are exceptions such as where expensive property is damaged, like... if a building collapses because the architects were careless. Another example where extremely high compensations are paid out is in defamation suits of high profile individuals, like when Tan Sri Vincent Tan sued some journalists for defamation, and was awarded RM7 million as compensation - because he stands to lose that much more from a stained reputation. [READ MORE - How does defamation work in Malaysia?] [READ MORE - If you win a lawsuit in Malaysia, how do you make sure you get paid?] You cannot really run away from being charged, or sued Not just criminals run away from the law, people who know they are about to be sued are known to run away, change their addresses and phone number, and probably move to another state (usually bankrupts). This is because, to sue someone, you need to personally serve them court documents called originating processes (writs or originating summons), which can be difficult if they don’t want to found. But running away doesn’t help them, because you can use what’s called substituted service to tell them that you’re suing. If they fail to turn up after that, you can actually get a “default win”. [READ MORE - If you want to sue someone in Malaysia, what happens if they ignore you?]"
"Is it safe to write your own contract in Malaysia? (Or sign one)  A couple weeks back, we got a message from a reader asking for help with a contract he signed. Here’s the scenario (not their real names): Amir rented a room from John, the main tenant. John wrote the tenancy agreement, which they both signed. The contact was supposed to last 6 months – the period which Amir intended to stay. Unfortunately, John had move out one month before the contract ended, which also forced Amir to move out; remember that John isn’t the landlord here… he’s the “master tenant”. Amir wondered if he could get some compensation out of the premature ending of this agreement, and he found another tenancy agreement that stated that a tenant would be paid to 2 months rent as compensation if a landlord cancelled the contract. This all looked promising until we saw a picture of the contract that Amir signed: Just to make it clear, this article isn’t about sub-letting or tenancy agreements, rather, we’ll be looking at how contracts work and why you should be careful when writing or signing a DIY one. We’re using Amir’s tenancy agreement as a sample contract for purposes of discussion, so you can try to spot problems in the image above if you want to take a crack at it yourself. If you’re thinking that this contract isn’t valid because it’s handwritten on a school exam pad, well, we got news for you... A handwritten contract IS totally valid! Very generally, any agreement between two or more parties can be considered a “contract”. This extends to verbal agreements, agreements written on a napkin… even a pinkie promise can be counted as a “contract”. This is explained much more authoritatively in Section 10(1) of the Contracts Act 1950: All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. By this definition, you actually enter into contracts every day without knowing it. For example, if you order a roti canai for breakfast, a contract is formed when you request for the roti canai (the lawful object), which is given to you in exchange for money (the lawful consideration). If that’s the case though, why do people still insist on going through the hassle of preparing and signing contracts instead of pinkie-promising their way through life? This due to two main reasons: The law requires some contracts to be put in writing A written (or recorded) contract prevents a He-Said-She-Said situation when things go sour But even if you had it written down, a contract that’s badly-worded or ambiguous can still be problematic. This brings us to the fun part... Why Amir’s contract is a “bad” contract In order to see how a badly-written contract can cause problems down the line, we sent Amir’s contract (with his permission) to practicing lawyer and Asklegal contributor Dinesh Sadhwani to point out some obvious issues. Before you say it, yes – a lot of this will sound like nit-picking. Understandably, some of you might roll your eyes and mumble something about lawyers purposefully making life complicated, but it’s also worthwhile keeping in mind that a contract doesn’t matter when things are going smoothly… it only matters when things go wrong. If John didn’t have to move out, the contract would have quietly expired without an issue and this article would never be written. 1. “ Rental per month is RM450/= ” From the contract, we know that Amir is obligated to pay RM450/month in order to live in the space. However, it doesn’t mention WHEN he needs to pay it. “A contract is all about the certainty of the subject matter. The more certain it is, the more enforceable.” – Dinesh This means that, without a specific time frame, a sneaky tenant could delay payments to any time within the month without violating the contract. Here’s how most contracts will lay out rental terms: Having said this, it doesn’t mean that you’ll be continuously trolled by your tenant just because you forgot to specify the payment period. The Contracts Act provides a stipulation that, if no specific time is specified, the performance of the promise (in this case paying rent) must be done within a reasonable time frame. Section 47 of the Contracts Act 1950 – Time for performance of promise where no application is to be made and no time is specified: Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time. However, given the subjectivity, this still begs the question (and can trigger an argument) as to what constitutes ""reasonable time"". 2. “ Damage to furnitures n mattress will forfeit from deposit “ No landlord (or master tenant in this case) wants to have their stuff broken, so most tenancy agreements would include a clause that fixtures need to be taken care of. In this case, Amir has to take care of the furniture and mattress during the time he’s living there, or risk losing his deposit. While this sounds fair enough, the devil is again in the details: If you read the contract closely, the forfeiture of the deposit seems to be very specific i.e. in respect of damage caused to the furniture and mattress. The phrase ""furniture"" may be sufficient to cover cupboards, chairs, desks and the like, but there may be other items in the room which are arguably not covered by this definition (e.g. glass window or heater for the shower). The question that can arise is who will be responsible if, for example, the glass window breaks or the heater malfunctions not due to the tenant's fault. - Dinesh But it doesn’t end here. Even for the items specifically mentioned (the furniture and mattress) as being within Amir’s responsibility, the question will arise as to what will happen if, for example, Amir was given an old mattress that falls apart the first time he sleeps on it. The landlord will obviously try to push the responsibility/liability to Amir (“It’s in the contract!”), even though it wasn’t due to Amir’s fault or negligence. Amir could counter-argue that it’s an implied warranty that the mattress will be in good condition – but again, there is no clear-cut answer and can become a point of argument. This, by the way, is also why tenants are always asked to inspect the fixtures before they sign a tenancy agreement. 3. “ Tenant need to maintain cleanliness of the common bathroom “ Along with taking care of the fixtures, Amir also has to keep the common bathroom clean for the comfort of everyone who uses it. If he doesn’t, he’ll be…be… what? “The contract doesn’t say what happens if the tenant breaches this part of the agreement. “ – Dinesh Dinesh clarifies that it can be argued that the cleaning service charge of RM15/month in the next line is the implied penalty, but it can be pretty contentious due to the wording, since there’s no clear connection between the two. In other words, this is the equivalent of a TV show trope where one character says “You’d better do it, or else.” and the other character cockily replies “Or else what?”. TLDR; Whether you’re signing or writing a DIY contract, it’ll be to your best benefit to write down the obvious to avoid any problems in interpretation down the line, even if it’s something that would make sense without being said. Does this mean you always need to hire a lawyer to write a contract? Despite everything you’ve just read, the answer to this is actually no. Other than writing your own contract, you can also use template or sample contracts downloaded from the internet. At the end of the day, it’s the responsibility of both parties to discuss and properly understand the terms before signing. [READ MORE: What happens if you sign a contract without reading it?] Dinesh provides some general tips to keep in mind: READ the contract! – Once signed, a contract is legally binding – and claiming that you “didn’t know” or “didn’t understand” cannot be used as an excuse. Don’t be afraid to ask for changes – You can always negotiate and/or suggest changes if you find certain terms unfair or unfavorable, as long as you haven’t signed it. Remember that your ability to negotiate is also determined by bargaining power. Get a third party to look through the contract – A neutral third party may spot problems or loopholes that you missed out. You can also get a lawyer to go through it for a nominal fee. Don’t DIY the important stuff – If the agreement is going to involve a lot of money or a long period of time where situations might change… you’ll probably want to leave the contract writing to the pros. Don’t fully trust a sample from internet or a template – These may still contain clauses that are unrelated or may be from a different country altogether. Lastly, don't assume or accept that there are ""standard"" contracts - despite what anyone might tell you. “ Contracts are usually assumed or accepted by laypersons as standard because the majority of us lack bargaining power to negotiate the typical significant contracts we sign (real estate purchases, car purchases, bank loans, etc). The fact is that, unless the law says that a contract must have (or cannot have) certain terms or must follow a certain format, there is nothing to stop the parties from negotiating and drafting or amending a contract however they want. This is a fundamental principle under contract law – freedom of contract.” – Dinesh If you think reading contracts will give you a brain aneurysm, Dinesh has written a cheat sheet to help you read them easier and impress your friends and family: [READ MORE: How to not fall off your chair when given a 50 page contract in Malaysia]"
"Can Jho Low actually get immunity from his alleged crimes? Many of us have been following the 1MDB saga with bated breaths. As a matter of fact, the articles covering this issue are too many to be linked and a simple Google search leads to an explosion of news. For this article though, we will be focusing on the latest development where Jho Low has approached Malaysia to request for immunity in return for him coming back to Malaysia. The first question that might pop into your mind is what is immunity and how do you get one? It’s a get out of jail card You would probably be familiar with immunity when we put it this way – the scene in the movies where the criminal “cuts a deal” with the figure in authority. This “deal” is usually him getting a lighter sentence or getting off completely in return for useful information that he will provide to the authorities. However, there are actually a few types of immunity: Legal immunity from prosecution – in return for information, the informer will not be prosecuted for his crimes Diplomatic immunity – diplomats in certain countries get immunity from being prosecuted in the country they are stationed in Parliamentary immunity – where Parliamentary members are given immunity for things that they say in Parliament. This is through the Houses of Parliament (Privileges and Powers) Act 1952 The immunity that Jho Low is looking for is legal immunity from prosecution. If he does manage to get it, he would be let off scot free (which is why our PM isn’t inclined to offer him immunity) or be given a lighter sentence. However, the catch here is that... Malaysia doesn’t have legal immunity from prosecution...anymore ASKLEGAL spoke to Fahri Azzat, a practicing lawyer in KL who told us that: “There is no concept of legal immunity in Malaysia anymore. Previously, only the Sultans had full legal immunity from criminal prosecution and civil claims.” Basically, back when the concept of legal immunity existed in Malaysia, it only existed for the royal families in Malaysia but this was removed in 1993 when our Federal Constitution was amended. In current times, immunity only exists when...you whistleblow. This protection is specifically provided for under section 9 of the Whistleblower Protection Act 2010: “Subject to subsection 11(1), a whistleblower shall not be subject to any civil or criminal liability or any liability arising by way of administrative process, including disciplinary action, and no action, claim or demand may be taken or made against the whistleblower for making a disclosure of improper conduct.” However, this protection is not absolute and can be removed if under section 11(1) if the whistleblower participated in the improper conduct he disclosed, the complaint was frivalous, or so on. This means that legally speaking, the immunity that Jho Low is looking for does not exist as explained by our PM:s ""I'm quite sure the kind of incentive he would readily accept is that he would not be prosecuted … But we can't do that. It's against the law. The law does not provide for what American law provides, plea bargaining and all that,"" – Dr. Mahathir, as quoted from Straits Times, 15 June 2018 If you are wondering why Jho Low does not qualify as a “whistleblower” under the Act, there are no definite answers. However, it may be possible that Jho Low does not qualify as a whistleblower due to the conditions set out under the Act as he is allegedly the main suspect in the investigations. If you’re thinking that this is the end of the road for him and all we have to do is arrest him, it is not. The AG can still choose not to prosecute him “There can be de facto immunity in the sense that the Attorney General will not prosecute that person for policy reasons.” – Fahri Azzat Some of you may be familiar with who the Attorney General (also known as Public Prosecutor) is and what he does. For those who are not, here’s one of our articles where we covered the powers and duties of an AG. The power we want to focus on today is specifically the power to prosecute. Under Article 145(3) of the Federal Constitution, the AG has the power to start, continue, or discontinue any legal proceedings. For criminal matters, this will be read together with section 376 of the Criminal Procedure Code which says: “The Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code.” To summarise it, what it means is that the AG has the discretion to prosecute. The decision to charge someone with a crime and what crime to charge him with is something that is purely within the purview of the AG. Therefore, while legal immunity is not a concept that exists in Malaysia, there can be as Fahri mentioned, de facto immunity through the use of prosecutorial discretion. TLDR; if our AG agrees to not prosecute Jho Low in return for whatever information he may possess, it achieves the same effect as the concept of legal immunity. So...what’s happening now? Actually, as of now, nothing is happening. We won’t know what the government would decide to do once Jho Low is located and arrested. However, for now, this is what Malaysian law says about immunity."
"What happens when you commit a crime aboard a Malaysian plane? If you’ve ever taken a flight, you know that security can be quite strict. They make you remove your electronics from the bag, they don’t allow you to carry liquids above 100ml, and sometimes if they’re being really careful they may even ask you remove your shoes. This is all done to make sure that no one commits a crime while it’s in flight. Malaysian airport scanners. Image from MAHB But here’s the thing...if a crime happens on the ground – at the airport or before the plane has taken off – you can be pretty certain that the PDRM would get involved and you’ll have to go through the Malaysian courts if you get charged. But what if the plane has already taken off and is flying over a different country? To illustrate our point, let’s take a fictional assault scenario on a fictional Malaysian flight: An Air Azia flight takes off from KLIA en route to Phuket,Thailand. Air Azia decides to use their Indonesian registered aircraft for this flight. Peter, an Irish national on the flight, gets irritated by the passenger next to him decides to throw a punch. He then accidentally punches a Filipino crew member. Now let’s say Peter is caught, which country will be responsible for punishing him? It follows the plane’s country of registration According to the general rule under international law, Peter will be punished by the country in which the plane is registered. So according to our example, it would be Indonesia. This general rule came from a piece of international law called the Tokyo Convention, which was drawn up to solve the jurisdictional problems which arose when crimes are committed on a plane – which Malaysia has signed and adopted parts of it under local law. Under Section 3(1) of the Aviation Offences Act 1984, the law provides: Any act or omission taking place on board a Malaysian-controlled aircraft while in flight elsewhere than in or over Malaysia which, if taking place in Malaysia, would constitute an offence under the law in force in Malaysia, constitutes that offence. This rule clearly makes it easier for countries to decide who gets to punish the offender, because all they have to do is pass the offender to the country in which the plane is registered. However, like with most rules…. There are always exceptions State security If you remember the hijackings during September 11 2001, a crime on board an aircraft can have a huge impact within the borders of a nation. Under Articles 4(a) and (c) of the Tokyo Convention, a country can interfere with a plane no matter where it’s from, if it jeapordizes their national security. So if let’s say an Indian registered plane gets hijacked by a British person and he wants to crash into our Twin Towers, the general rule dictates that India would have jurisdiction over the matter. But because Malaysia’s security is at stake, we would have jurisdiction. The laws of the criminal and victim’s country may apply This exception would be based on two legal principles. The first one allows a country to have criminal jurisdiction over their own citizens if they commit a crime anywhere on Earth. However, not all countries adopt this principle in their legal system. But, if you’re looking for an example you don’t have to look to far because our Section 127A of the Criminal Procedure Code allows the PDRM to arrest Malaysians who have committed crimes abroad and then entered back into Malaysia. The second principle, allows a country to prosecute anyone (no matter what country they’re from), if they commit a crime against their own national. This is known in the legal realm as the ‘passive personality’ principle and is adopted by France. Which means, if a Japanese man kicks a French national in South Korea, the French technically has a right to prosecute. So, to allow for these principles to apply when a crime happens on a flight, the Tokyo Convention permits a state to claim jurisdiction if the criminal or victim is their own citizen. Article 4(b) states the following: A Contracting State which is not the State of registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board except in the following cases: (b) the offence has been committed by or against a national or permanent resident of such State; To illustrate how the law would apply on a flight – if a Malaysian man punches a Singaporean man on an international flight, technically both Malaysia and Singapore would have the authority to prosecute the Malaysian. Thus, two countries would have jurisdiction over the crime, which means…. Sometimes countries just need to work together Because the exceptions allow more than one country to have jurisdiction to prosecute, this can result in diplomatic clashes. To avoid all of this, international channels like negotiations and extradition agreements would be used. In 1988, extradition was used to punish the perpetrator of the Lockerbie incident. This event concerned a Libyan national bombing an American registered plane over a Scottish town called Lockerbie. After negotiations and pressure from the United Nations via sanctions, Libyan authorities extradited the criminal over to the Scottish police. Although the criminal wasn’t on board the flight when he committed the crime, we can still see how difficult the extradition processes are. [READ MORE: What's extradition, and is it hard to bring a Malaysian criminal back from overseas?] So to make things easier when extraditing someone who committed a crime on a plane, Malaysian law has Section 4 of the Aviation Offences Act 1984 which says that Malaysia must return the criminal to the country in which the plane is registered. In a way we have avoided diplomatic intricacies, because all we have to do is follow our local laws."
"Apa akan terjadi jika tuan rumah menjual rumah yang disewakan kepada anda? This article was translated from English which can be found here. Membeli rumah dalam situasi ekonomi sekarang adalah amat sukar jadi kebanyakan dari kita terpaksa menyewa rumah. Namun menyewa rumah boleh datang dengan masalah-masalah tertentu seperti mendapatkan rumah yang terbaik yang mempunyai kemudahan lengkap dan dimiliki oleh tuan rumah yang baik. Nasib menyebelahi anda dan anda berjaya mendapat rumah yang terbaik dan setakat ini anda telah tinggal di sana selama 6 tahun. Beberapa bulan selepas anda memperbaharui perjanjian sewa rumah untuk dua tahun yang akan datang, tuan rumah memberitahu anda bahawa anda perlu berpindah kerana dia telah menjual rumah tersebut kepada orang lain. Soalan utama ialah – Bolehkah tuan rumah memerintahkan anda untuk mengosongkan rumah? Ianya bergantung kepada apa yang tertera dalam perjanjian anda. Perjanjian sewa rumah yang ditulis dengan baik selalunya mengandungi kewajipan dan tanggungjawab yang dipersetujui dan harus dilaksanakan oleh tuan rumah dan penyewa rumah sepanjang perjanjian tersebut. Untuk mengelakkan anda dari diusir keluar oleh tuan rumah, anda perlu bergantung kepada beberapa fasal (“clauses”) yang tidak membenarkan pemilik menjual rumah tersebut sepanjang tempoh perjanjian, ataupun jika rumah tersebut dijual, ia hanya boleh dijual jika anda boleh terus menyewa rumah tersebut di bawah syarat perjanjian yang dibuat oleh anda dan tuan rumah. Selain dari fasal-fasal di atas, perjanjian tersebut harus mengandungi fasal pemberhentian awal yang boleh menjadi garis panduan kepada anda dan tuan rumah sekiranya tempoh perjanjian ditamatkan pada masa yang lebih awal. Untuk mengenali bagaimana rupa ketiga-tiga fasal ini, berikut adalah beberapa contoh (dalam bahasa Inggeris): “In the event the Landlord shall be desirous of selling the Said Premises prior to the expiration of the term hereby created, the Landlord hereby covenants, undertakes and agrees that such sale shall be subject to this tenancy and shall procure the Purchaser to continue with the terms and conditions of this Agreement in lieu of the Landlord.” “In the event that this Agreement is terminated before the expiration of the Term of this Agreement by the Landlord due to whatsoever reason non attributable to the Tenant which shall include but not limited to the Landlord early termination of the Tenancy Agreement, the Landlord hereby undertakes and agrees to refund or cause to refund to the Tenant within seven (7) days thereof the Security Deposit and any sum already paid to the Landlord pursuant to this Agreement, and further pay a sum equivalent to the Security Deposit to the Tenant as agreed liquidated damages, without prejudice to any right of action or remedy of the Tenant in respect of any breach of the Landlord pursuant to this Agreement, failing which the Landlord shall pay interest at the rate of eight (8) % per annum on such sums which has not been duly paid/refunded to the Tenant, calculated on a daily basis, and thereafter, this Agreement shall be null and void and neither party shall have further claim against the other, save for antecedent breaches” Jika fasal-fasal ini disertakan dalam perjanjian anda, maka anda tidak perlu bimbang jika tuan rumah mengusir anda, kerana anda boleh mendapatkan ganti rugi daripada tuan rumah anda. Selain itu, atas persetujuan kedua-dua pihak, anda boleh menandatangani deed of novation. Dokumen ini akan ditandatangani oleh anda (sebagai penyewa), tuan rumah dan pembeli rumah. Ringkasnya, dokumen ini akan menyerahkan hak dan liabiliti tuan rumah di bawah perjanjian sewa rumah kepada pembeli rumah. Ini akan menjadikan pembeli rumah tersebut sebagai tuan rumah yang disewa oleh anda, dan dia akan menjadi orang yang perlu anda hubungi untuk semua perihal sewa rumah. Jika anda memiliki perjanjian sewa rumah yang lengkap, maka anda tidak perlu bimbang. Tetapi jika perjanjian tersebut tidak lengkap atau tidak wujud sama sekali, maka anda mungkin akan berdepan dengan beberapa masalah yang akan menyusahkan anda. Tiada perjanjian = masalah besar Walaupun undang-undang Malaysia memberi pengiktirafan kepada perjanjian-perjanjian lisan, situasi sebegini boleh menimbulkan kekeliruan apabila terma-terma perjanjian tidak ditulis dengan jelas. Kalau sebarang pertikahan timbul di mahkamah, ia akan menjadi situasi di mana sebarang hujah yang diperkenalkan akan dalam bentuk “he say, she say”. Tetapi, jangan risau sebab ini tidak bermakna bahawa anda akan diabaikan begitu sahaja. Jika anda mempunyai perjanjian lisan, anda perlu memberi bukti kepada mahkamah bahawa anda diperuntukkan hak-hak di bawah perjanjian lisan anda dengan tuan rumah dan berharaplah yang tuan hakim akan memberikan anda hak kepada ganti rugi sekiranya tuan rumah membatalkan perjanjian sewa beli sebelum tarikh akhir perjanjian. Jika anda tidak dapat meyakinkan mahkamah bahawa anda mempunyai perjanjian sah yang mengatakan anda memiliki hak tinggal di rumah tersebut, sila bersedia untuk menitiskan air mata sedih kerana dalam situasi ini, tiada jalan penyelesaian untuk anda. Jika anda memiliki perjanjian tetapi syaratnya tidak jelas, maka mahkamah boleh memutuskan jalan penyelesaian melalui peraturan ‘contra proferentum’. Peraturan ini membolehkan hakim mentafsirkan sebarang fasal yang tidak jelas dalam bentuk yang tidak memihak kepada sesiapa yang menulis fasal tersebut. Sebagai contoh, jika tuan rumah menyediakan perjanjian tersebut dan terdapat fasal yang tidak jelas, maka mahkamah akan mentafsirkan fasal tersebut dan memastikan bahawa ianya memihak kepada anda dan bukannya tuan rumah. Untuk menjawab soalan seperti mana yang tertera dalam tajuk artikel ini.... Ada kemungkinan anda boleh diusir keluar Jika tuan rumah membuat keputusan untuk menjual rumahnya dan seterusnya mengarah anda untuk mengosongkan rumah dan tidak menandatangani deed of novation, maka anda terpaksa mengosongkan rumah tersebut, walaupun di sini sebenarnya ia bukan perintah untuk mengosongkan rumah tetapi pemansuhan perjanjian. Namun begitu, seperti pelanggaran perjanjian yang lain, anda tidak akan dibiarkan begitu sahaja. Bergantung kepada keadaan, anda boleh mendapat kembali deposit anda dan sedikit bayaran ganti rugi atas segala kesulitan. Dan jika anda tidak dapat mencapai kata putus dengan tuan rumah, maka bersedialah untuk mengupah seorang peguam."
"Wait what, Malaysia has a Deputy Yang di-Pertuan Agong? On 2 November 2018, it was announced that the Sultan of Perak, Sultan Nazrin Shah, would take over the functions of the Yang di-Pertuan Agong (YDPA) from 2 November until 31 December. It isn’t exactly the end of Sultan Muhammad V’s term yet, so why exactly does Sultan Nazrin Shah need to step in as YDPA? He’s the Timbalan Yang di-Pertuan Agong, and is filling in since the Comptroller of the Royal Household for Istana Negara officially announced that Sultan Muhammad V would be resting following medical treatment. It’s not everyday that you see the “Deputy Agong” fill in for the YDPA, so many Malaysians were quite surprised to learn that there was such a role at all. The position of Timbalan Yang di-Pertuan Agong is actually written into Article 33 of our Federal Constitution, which, while important, is unknown to most Malaysians. Here’s a brief rundown of the Timbalan YDPA’s functions. The Timbalan Agong fills in when the YDPA “goes on leave” Also called the Deputy Supreme Head of the Federation, the Timbalan Yang di-Pertuan Agong enjoys the privileges and performs the functions of the Yang di-Pertuan Agong when he is “away from office”. This basically refers to any situation where the YDPA is ill, is away from Malaysia, or for any other reason cannot fulfill his official role. Kind of like any office position where you have a deputy role filling in for the head role when they’re not available. Article 33(1) of the Federal Constitution (in part) “There shall be a Deputy Supreme Head of the Federation (to be called the Timbalan Yang di-Pertuan Agong) who shall exercise the functions and have the privileges of the Yang diPertuan Agong during any vacancy in the office of the Yang di-Pertuan Agong and during any period during which the Yang di-Pertuan Agong is unable to exercise the functions of his office owing to illness, absence from the Federation or for any other cause…” A key limitation here would be that the Timbalan YDPA is not supposed fill in if the actual Agong will be away for less than 15 days, unless it is necessary for the Timbalan to do so (like if there is an urgent matter that needs tending to). When acting for the YDPA, the Timbalan is also subject to the limitations of power upon the YDPA (called “disabilities” in the Constitution), such as that the YDPA is not allowed to engage in commercial enterprise. How is the Timbalan selected? Just like the YDPA himself, the Timbalan Agong is also elected by the Conference of Rulers (Majlis Raja-Raja), which is basically a council of our Sultans where they decide on certain official matters like religious matters, consenting to Parliament’s laws, granting royal pardons, and even discussing certain national policies like immigration policy. And, like the YDPA, the Timbalan also holds his position for a term of 5 years, but if he is elected during the term of a YDPA’s rule, he will only be Timbalan for the remainder of that time. So if Sultan ABC was made Timbalan while the YDPA is in the final year of his term, Sultan ABC’s time as Timbalan will only last for another year. But he’s not next-in-line One other rule is that if the YDPA’s office is emptied for any reason, the Timbalan does not automatically become the YDPA, unlike the way the Deputy Prime Minister or a Vice President takes over if their principal is away. Article 33(3) of the Constitution states that: “If during the term for which the Timbalan Yang di-Pertuan Agong was elected a vacancy occurs in the office of the Yang di-Pertuan Agong his term shall expire on the cessation of the vacancy.” Which means that if the current YDPA leaves his position, the Timbalan loses his position as well. The election process by the Conference of Rulers takes place where a new YDPA and Timbalan YDPA will be chosen instead."
"Behind the Badges: 4 types of Police you see everyday in Malaysia From the police officers clad in navy blue uniforms that we usually see patrolling the streets and the ones regulating traffic flow, to the cops that we see at malls and train stations (you know, the ones we can’t help but wonder if are actual cops). We all know that police officers are very much present throughout our communities, but have you ever stopped to wonder how many types of police officers there are in our country? While everyday people like us may tend to refer to our police force with the blanket term, well, police, the Royal Malaysia Police is actually comprised of multiple units. Here’s a general overview of the main types of police officers that you may see on a daily basis and their specific functions and scope of powers. 1. Regular Police (General Operations Force) This is probably the standard image of a police officer that most of us would conjure up in our minds at the mention of the word “police”. Uniform: They are dressed in navy blue headgear, collared button up tunic shirts and cargo pants. Their headgear may vary from peaked caps (like the one in the photo) to bowler hats and berets. The headgear is decorated with a silver emblem of the police force. A badge is worn above the right breast pocket with a name tag below it followed by a silver identification number tag. A ribbon is worn above the left breast pocket, whilst a “Bersedia Berkhidmat” badge hangs from the left breast pocket. Their rank is indicated by the insignia worn on their right sleeves. [Click here for more detailed information on the uniforms of the General Operations Force] Duties and Powers: The general duties of police officers are encapsulated within section 20 of the Police Act 1967. The list is relatively long, so here’s a part of it: (a) apprehending all persons whom he is by law authorised to apprehend; (b) processing security intelligence; (c) conducting prosecutions; (d) giving assistance in the carrying out of any law relating to revenue, excise, sanitation, quarantine, immigration and registration… Basically, they are responsible for catching the bad guys, combating crime, protecting us, maintaining order in society and everything else in between. Under sections 24- 28 of the Police Act 1967, they can: stop and detain persons stop and search vehicles and aircrafts request you to produce your licence/ identification card/ permits set up road blocks regulate the playing of music in public places Of course, this is just a very general picture of the General Operations Force. The duties and powers of individual officers vary according to rank and occasion. [READ MORE- Can the Malaysian Police legally search your car at a roadblock?] 2. Auxiliary Police aka Polis Bantuan Appointed under section 47 of the Police Act 1967 by the Inspector-General of Police (IGP), auxiliary police officers serve as an additional support unit to the Royal Malaysia Police and they are stationed at places where regular police officers don’t usually operate such as banks, shopping malls and private and government buildings. Although appointed by the IGP, auxiliary police officers are employed by the owner of the place where they are stationed for duty. For example, Shopping Mall Satu First employs auxiliary police officer Sam to beef up their security. Shopping Mall Satu First pays Sam a salary and is therefore Sam’s employer. As long as Sam takes a salary from Shopping Mall Satu First, Sam’s area of duty is Shopping Mall Satu First. Uniform The overall getup of their uniforms is similar to the uniforms of regular police officers, except that they wear a “Polis Bantuan” badge on their left sleeves. They are also usually seen wearing berets instead of peaked caps. Duties and Powers According to Paragraph 21 of The Police (Auxiliary Police) Regulations 1970, the duties of auxiliary police officers are: Patrol and surveillance Crowd control Protecting and escorting property of the employer Crime prevention Arresting offenders Apart from functioning as an additional support unit to the regular police force, auxiliary police officers are often employed to empower security guards with their police powers, especially the power to carry and to use firearms. Auxiliary police officers are allowed to carry and use firearms under Paragraph 22, but this power is limited in 2 ways: they only have this power when carrying out their duties at their employer’s premises they can only carry and use firearms that are licensed under their employer’s name Auxiliary police officers effectively act as their regular police counterparts and therefore hold the same powers. The only difference is that they only operate within a fixed and localised area, that is their employer’s premises. Paragraph 22 states that sufficiently trained auxiliary police officers are even allowed to exercise special powers of investigation with the permission of the IGP under certain circumstances. Special powers of investigation include: questioning witnesses conducting searches inspecting evidence [READ MORE- What Powers do the Auxiliary Police (Polis Bantuan) have in Malaysia?] 3. Traffic Police These guys are from the Royal Malaysia Police Traffic Unit, one of the two traffic law enforcement agencies in Malaysia (the other one being the Road Transport Department or Jabatan Pengangkutan Jalanraya (JPJ)). You may want to note that JPJ officers patrol our roads and set up road blocks as well. Do not confuse them with the traffic police as they are both distinct and separate. Although both JPJ officers and regular police officers have navy blue uniforms, JPJ officers do not have the Royal Malaysia Police emblem on them. Uniform Their black and white uniforms set them apart from the other types of police officers around. Navy blue caps, Sam Browne belts (leather belts that are diagonally strapped from shoulder to waist) and riding boots are all part of their ensemble. Duties and Powers As per section 21 of the Police Act, their responsibilities include: regulating, controlling and diverting traffic maintaining order on public roads and streets preventing obstruction of roads They also patrol the roads to ensure the general safety of public. Here’s a couple of traffic police officers lending help to an elderly whose car broke down mid journey: Like regular police officers, traffic police officers have the power to stop and search persons and vehicles. They also have the right to ask you for identification. And as you probably already know, they also set up road blocks and issue traffic summons. Yeap, they can be your best friends in times of need and they can also potentially be your biggest nightmares. You’re probably also wondering if they have the power to arrest people. The answer yes. Under section 112 of the Road Transport Act 1987, they can arrest anyone for: reckless or dangerous driving causing death by reckless or dangerous driving driving (or being in control of a vehicle) under the influence of drugs or alcohol [READ MORE- 5 Things you didn’t know could get you in trouble with the Malaysian traffic police] 4. Marine Police (Marine Operations Force) We did say that this would be a list of the types of police officers that you might see on a daily basis, and unless you live by the sea or out at sea, chances are you’d rarely see marine police officers around. However, we thought they deserve an honorary mention given the recent surge of kidnapping cases in Sabah waters. Uniform Again, their uniforms closely resemble the uniforms of regular police officers. However, they sport sky blue berets instead of navy blue ones. In the photo above, the front two officers are probably regular police officers as indicated by the male officer’s navy blue beret and the female officer’s navy blue hijab. Marine police officers also wear the Marine Operations Force badge on their left sleeve. Their crest looks like this: Functions The marine police are the ones patrolling our shorelines and fighting criminal activities perpetrated at sea such as smuggling of contrabands and fuel, trafficking of persons, piracy and cross border abduction. Some of their main operations also involve cracking down on illegal clearing of mangroves and illegally caught seafood. They work closely with the Royal Malaysian Navy and the Malaysian Maritime Enforcement Agency (MMEA). While the navy and MMEA patrol the open seas, the marine police operates closer to coastlines. Now that you’re more woke bout the different types of police... Of course, the composition of the Royal Malaysia Police is much more complex than what this list reflects. There’s also the Air Wing Unit, the Federal Reserve Unit and the Counter Terrorism Units, just to name a few. It’s always helpful to know about the different components of the Royal Malaysia Police and their powers and responsibilities (at least the ones you’re likely to encounter in your day to day life) so that you know what your rights are in the event you are confronted with an officer. Next time you see a police officer, don’t forget to thank them for their service to our country! [READ MORE- Can Malaysian plainclothes police stop or arrest you?] [READ MORE- Can the Malaysian Police enter your house without a warrant?]"
"5 important things you need to know about Malaysia’s new no-smoking law (Update: The grace period, originally covering the first six months of 2019, was extended all the way to December 2019. This was termed as a one year educational period for eatery owners and smokers to get used to the smoking ban at restaurants. But come January 2020, the Health Ministry offered no more grace. In the first two days of the decade, over RM170,000 worth of fines were handed out to smokers and eatery owners.) With the increased taxes on tobacco products coming up in November 2018, as well as a ban on smoking at all eateries coming up in 2019, it looks like Malaysia is following our neighbours like Singapore and Thailand suit in tightening our smoking laws and regulations. It probably was only a matter of time before it happened, so with these new rules coming into place and probably stricter enforcement, you might be asking - How do we know where smoking is prohibited in the first place? It’s actually not that easy to come by our tobacco regulations, as they are actually under the Control of Tobacco Product Regulations 2004, which is a regulation written under our Food Act 1983. You’ll only find some of the more recent amendments to the Control Regulations on our Federal Gazette, but thanks to help from our lawyer friends, we managed to get an updated copy (which is unfortunately not publicly available). We’ll go through a complete list below for easy future reference (protip: bookmark this article!). 1. There are 23 places where smoking is prohibited Yes, it’s a long list of places - they come under Regulation 11 of the Control of Tobacco Product Regulations 2004. The health minister has clarified that this ban will include vaping and shisha unless they contain no nicotine because our legal definition of ""smoking"" reads as ""inhaling and expelling the smoke or vapour of any tobacco product, and includes the holding of or control over any ignited, heated, or vaporized tobacco product"". With that, here’s the list of general “no smoking” areas in Malaysia: Entertainment centres, or theatres (does not include pubs, discotheques, night clubs, or casinos during their operation hours) Any area of a hospital or clinic Public lifts and toilets Eating places or shops Public vehicles and public transport terminals Airports Any area of government premises Any area of a building used for assemblies (other than private or residential buildings, or in a public place) Any area of an educational institution or higher educational institution Any area of a nursery School buses Any floor with a service counter in buildings listed in the Second Schedule Any area of shopping complexes Any area of petrol stations Any area in stadiums, sports complexes, fitness centres, or gyms Any religious building or public place Any area of a library Any area of internet cafes Any area of National Service training grounds Any air conditioned working spaces with a centralized air conditioned system Any rest and recreational areas in buildings, playgrounds, or gardens, and the area within 3 meters of that place Any public parks, except an open public car park Any observation towers, camp site, canopy bridges, and 5 meters from the entrance/exit of the canopy bridge (national parks and state parks) The “area” of a place mentioned above also includes the surrounding area of the place within its borders, and also includes a distance of 3 meters from any permanent roof connected to the main building. Offenders can be fined up to RM10,000 or be imprisoned for up to 2 years. The buildings that fall under the Second Schedule (for item 12 mentioned above) are: Banks or financial institutions Telekom Malaysia Berhad Tenaga Nasional Berhad Pos Malaysia Berhad As for private property, the owners may also set conditions for entry like “no photography” or the present example of “no smoking”. If visitors do not comply with those conditions, the property owners have the right to force visitors off the property - so it pays to pay attention to whether private establishments have smoking rules of their own. [READ MORE - Can you legally stop someone from taking photos of you in Malaysia?] 2. The Health Minister can also make custom “no smoking” zones Regulation 22 of the Control of Tobacco Product Regulations also allow the Health Minister to declare any building, premise, or place accessible by the public (or any part of these places) as a “no smoking” area. He can place any conditions on these zones as he sees fit, as long as he puts a notification of his decision in the Federal Gazette, the online version of which you can find here. If you’re curious how the notifications look like, you can find some of our past declarations of non-smoking areas on the Gazette as well. 3. Smoking will be banned at eateries nationwide starting 1 January 2019 Deputy Health Minister Lee Boon Chye has stated that, come 2019, smoking will be illegal in all air conditioned and non-air conditioned restaurants, coffee shops, open-air hawker centres, and even street stalls. Smokers will have to be at least 10 feet (3 meters) away if they feel like having a puff. These changes have yet to be gazetted, which currently means two things - they don’t take effect yet, and we don’t yet know what the written laws for this look like. We’ll update this article when the law comes into force. The changes were gazetted under the Control of Tobacco Products (Amendment) Regulations 2018. Previously, only air-conditioned eateries were non-smoking areas. Now, the air-conditioned term has been removed, and any eatery is considered a non-smoking area. First time offenders of the smoking law will be fined RM250. What you might also want to know is that you can report the premise owners if they don’t stop customers from smoking. The owners can be fined up to RM3,000 or be imprisoned for up to 6 months if they fail to put up “No Smoking” signs, and they can also be fined up to RM5,000 or be imprisoned for up to 1 year if they don’t take steps to stop people from smoking at their premises. As for who you can make reports to and how exactly these regulations will be enforced… 4. It’s not yet clear how enforcement will take place Offenders will now be fined (Update: The no-smoking ban has been fully enforced in 2020. As mentioned in the opening, RM170,000 worth of fines was handed out in just 2 days.) If you weren’t aware before this, we’ve actually tightened our laws on smoking and added more restricted areas over the years; with public parks and certain areas of national parks last added to the list of no-smoking areas in 2017. However, these regulations were never properly enforced before this, which is probably why most people have never heard of these legal amendments. We don’t yet know how the regulations will be enforced in 2019, but they’ll probably involve the people who are currently called “authorized officers” in our Food Act 1983, who are defined as: “any medical officer of health or any assistant environmental health officer of the Ministry of Health or of any local authority, or any suitably qualified person, appointed by the Minister to be an authorized officer…” So this would include the officers from the Ministry of Health, as well as officers from your local council. This is also further clarified by the Health Ministry’s statement that their existing 5,000 officers will take on the duty of monitoring establishments. Whether the police will be part of the enforcement is uncertain, but for now, know that you can lodge reports of offenders to the authorities mentioned above. 5. There’s a 6 month 12-month grace period Unlike the ban, the punishment for smoking in a prohibited place (RM10,000 fine or up to 2 years in jail) won’t take effect immediately come January 1st 2019. According to Deputy Health Minister Dr. Lee Boon Chye, the first 6 months after the ban takes effect will serve more as a grace period to educate smokers. (Update: This was extended for another 6 months, until end of December 2020.) However, this doesn’t mean that enforcement officers have no authority to punish you – they totally do. Stubborn smokers can be penalized on the spot if they refuse to cooperate with officers. Although members of the public and businesses can’t enforce the rules on their own (other than asking misbehaving smokers to stop), they can make a report to the Health Ministry’s hotline at 03-8892 4530."
"If you bought a haunted house in Malaysia, do you call the Ghostbusters... or a lawyer? Congratulations, you just bought your first house! Sure, it’s a little run down because it’s a second-hand house… the lights turn on by themselves every now and then (faulty wiring) and you feel this cold chill every time you walk in (save money on air conditioning) but, hey, it was within your budget and it’s a house that you can call your own. As you’re about to fall asleep in your cosy new bed, you feel this distinct tap on your shoulder, so you automatically turn around only to realize…. You’re living alone. At this point, everything starts falling into place. It’s not faulty wiring or excellent ventilation….. your house is haunted. From the safety of a brightly-lit mamak, you start considering your options – should you sell the house at a loss? Attempt to exorcise the house of its spiritual tenants? Or….. try to sue the guy who sold you the house for not telling you that it’s haunted? Now obviously this is easier said then done, because you’re left with two almost impossible things to prove to a judge: That ghosts exist That ghosts exist in YOUR house But in the spirit of Halloween, let’s see if there’s any way you can take the case to a Malaysian court... There might be 2 legal ways to do it If you do a search on on this, you’re likely to find the case of Stambovsky v. Ackley aka the Ghostbusters Ruling, where someone had managed to successfully sue on the basis of buying a haunted house. However, this is also an American case and, except in very exceptional circumstances, cannot be applied to Malaysian law. Interestingly enough, America also has certain laws in place that requires sellers to reveal that their property is haunted (or “emotionally defected”). Unfortunately, this is also not applicable in Malaysian law. As you might know, there are many common links between Malaysian law and those in the UK and India; which is why Malaysian judges may use UK or Indian cases as a point of reference in court. However, there haven’t been any cases from these countries (that we could find, anyway) where a homeowner successfully sued on the basis that he was sold a haunted house. So, just to give us a ghost of a chance of arguing this out, we looked into the American cases to see what basis of law they argued on, and how that may apply to us here in Malaysia. This pointed us to two laws: Breach of contract Misrepresentation Let’s look at breach of contract first, since it’s gonna be pretty brief. Breach of contract This is where you argue that the seller breached the sale and purchase agreement for the house. Usually, such an agreement will state that the house will be given to the buyer in good condition. So if there are physical defects (cracks, leaks, faulty fixtures, etc) – you probably can get compensation from the previous owner (seller). However, unless you somehow convince the seller to include it in the contract, chances are pretty high that your agreement won’t mention that the house will be ghost free, so even if you manage to prove a haunting it wouldn’t be a breach of contract. In other words, don’t get your hopes up looking for compensation because a poltergeist playing with your light switches wasn’t part of the contract. In effect, your chances are higher if you argue based on misrepresentation They didn’t tell you the house has a dark history While it’s hard to prove a haunted house, it’s a (somewhat) smaller stretch to prove that a house has a….. unclean history. Misrepresentation is basically when someone tells you an untrue fact and it induces you to enter into the contract with them, covered under Section 18 of the Contracts Act. Malaysian law places a responsibility on sellers to disclose the correct facts about the house to buyers, because telling incorrect facts can result in a lawsuit. That means that while a seller can say “no” when you ask if a house is haunted, it’s different if you ask if someone was murdered in the house, or if anyone had died in it. So if you bought a house and came across a newspaper report that an entire family was massacred there, chances are you might be able to sue the seller for misrepresentation (assuming you asked about people dying there in the first place). However, the extent of legal responsibility also depends on one crucial thing – who is making the statements to you. This is because the law is easier on a private owner selling a house, and stricter on realtors. Owners – less strict If you bought the house directly from the owner, the law of misrepresentation would not be as strict on him. Essentially, an owner doesn’t have a duty to tell you everything about the house. This is based on an established legal principle called caveat emptor which translates to Let the Buyer Beware. The implication of this principle is that it’s up to you, the buyer, to protect yourself from risks. In the case of Sykes v Taylor-Rose (2004), the house seller didn’t tell the buyer that the house was previously the scene of a gruesome murder. When the new owner sued him, the court agreed that the seller had the right to withhold that information, because it is the duty of the buyer to ask questions and not for the seller to tell the buyer everything. In other words, if you don’t ask the uncomfortable questions; you have no one to blame but yourself when the walls start dripping blood. However, this may be different when dealing with professionals. Realtors – more strict Realtors are what most of us call “Property Agents” (although there’s actually a difference) – they are licensed and trained to sell or rent out houses on behalf of the owners. Because of their extra knowledge, they’re considered professionals and the law places a greater responsibility as compared to Uncle Chong who puts his up for sale on Mudah. Therefore, realtors must disclose certain facts, and they can’t stay silent about it. There’s actually a Malaysian case that involved misrepresentation by a realtor, although unrelated to the paranormal. In the case of Nepline Sdn Bhd v Jones (1995), a company (Nepline) rented a property through a realtor (Jones). However, Jones failed to tell Nepline that the house they rented was about to be sold by a bank because the owner didn’t pay his bank loans. So Nepline sued Jones for not telling them that crucial bit of information before they signed the contract. Here. the court stated there was a difference between a professional and a layman (or friends) giving advice. As a realtor (a professional), Jones was bound to to disclose important facts to Nepline and not stay silent about it. Here’s what the court said: “I must admit that is a far cry from the facts in this case. Because, here, while I have no doubt that a fiduciary relationship between the Appellant (N) and the Respondent (Estate Agent J) did exist, what happened here was not an active misrepresentation, not even a careless mis-statement as in the Hedley Byrne case. Here, it was non-disclosure. “This is not a case of a friend telling another friend that there is a house for rent. This is a case of a professional firm, holding out to be a professional with expertise in its field, earning its income as such professional. They know that people like N would act on their advice. Indeed, I have no doubt that they would hold out to be experts in the field and are reliable. It would be a sad day if the laws of this country recognise that such a firm, in that kind of relationship, owes no duty of care to its client yet may charge fees for their expert services. “In the circumstances, I think I am fully justified in taking the view that J in this case owed a duty to N to disclose that there was a foreclosure proceeding pending. I think the provision of s. 3 of the Civil Law Act 1956, especially the proviso thereto, allows me to do so”. [emphasis added] So TLDR, while a private home owner isn’t required to tell you certain facts about the house, a professional realtor would. But either way... It’s not gonna be easy to prove a haunting As mentioned, the points in this article are as hypothetical as the existence of the Babadook. Even if the points above give you the legal ground to start a lawsuit, it’s again going to be difficult to provide evidence of a haunting unless you somehow convince the supernatural entity in your house to testify as a witness in court. By which, you may as well ask it to pay rent. So to avoid buying a haunted house in the first place, it might be better for you to do some research and ask not just the seller/agent/realtor about the history of the house; but the neighbors as well. There’s a chance they may know more, and be more willing to talk about it too. In other words, it may be best to avoid putting yourself in this scenario in the first place regardless of the laws that are in place. After all, having certain rights doesn’t mean you need to exorcise them."
"5 beliefs Malaysians have about the death penalty...that are wrong If you’ve ever flown into Malaysia, you would’ve heard an announcement saying Malaysia punishes drug trafficking with the death penalty. For tourists, that’s essentially their first encounter with the fact that Malaysia has a death penalty, and that drug offences are taken very seriously. But for Malaysians, it’s a familiar reminder of what we’ve been taught for years through the news and anti-drug posters. These aren’t empty threats either. As of February 2017, 1,100 people have been sentenced to death in Malaysia. In 2016, Amnesty International ranked Malaysia 10th in the world for the usage of the death penalty. This all might come to a change as Law Minister Liew Vui Keong announced that the government will look into abolishing the death penalty. This could be a shake-up to our justice system, as the announcement showed that Malaysians are quite polarized on the issue – with some celebrating the announcement, while others are disagreeing with the idea. While your personal beliefs or morals may dictate where you stand on the issue, it’s also important to have an informed opinion based on how the death penalty actually works. So, we’ll be going into some common misconceptions or “myths” that many Malaysians believe are true about the death penalty, starting with… Myth 1: The moment you get sentenced, there’s no way out – FALSE If you’ve seen courtroom movies, you know that an accused has to go through a court trial. When the trial ends, and if a guilty verdict is passed the accused will receive a sentence/punishment. It should be noted that, the case doesn’t always end there are two ways to avoid serving that sentence: Appeals Royal pardon Very briefly, if you’re not satisfied with the decision of the trial, the first thing you can do is appeal the decision to a higher court, which would be the Court of Appeal following Article 121 (1B) of the Federal Constitution. Then, even if you don’t manage to escape the sentence there, you’ll still have a “second” chance to appeal to the Federal Court. After the Federal Court, you would lose all avenues to escape the death penalty via our courts system. Article 121 (1B) of the Federal Constitution (in part) : ...the Court of Appeal shall have the following jurisdiction, that is to say— (a) jurisdiction to determine appeals from decisions of a High Court If the courts system doesn’t work out, there’s also another glimmer of hope in getting a Royal Pardon. This is where the Agong or or one of the state Sultans exercise their ability to “forgive” you – meaning that you can have your sentence reduced to life imprisonment or be let off entirely. However, unlike an appeal, there is no inherent right or process for your case to be considered when it comes to Royal Pardons. [READ MORE: How do Royal Pardons work in Malaysia] Myth 2: You get hanged very soon after sentencing – FALSE After the judge sentences you to death, you wouldn’t be immediately whisked off to the gallows. As we mentioned, you still have a right to appeal against it. Due to the high number of cases that judges have to juggle with, this would mean that convicts may have to wait an extremely long time in death row. In fact, a death row inmate interviewed by Malaysiakini stated that he has been waiting 7 years for his sentence to be carried out! However, this may not necessarily be a comforting thought, because you’d be literally spending every day with a noose over your head. A former prison executioner revealed that inmates are only informed about their execution date 24 hours beforehand. Myth 3: If you get caught with drugs, you will get the death penalty – FALSE Based on the messages in anti-drug posters, you may think that anyone caught with drugs would end up meeting the noose. Well, we have noose news for you – that’s not necessarily the case. Only the offence of drug TRAFFICKING carries the punishment of death under Section 39B of the Dangerous Drugs Act 1952. There are a wide variety of drug offences that don’t result in the punishment of death – the main ones being drug possession and drug use. The difference between the three is actually a pretty complicated topic which we’ve covered in a separate article, but the law basically makes an assumption of what you intend to do with the drugs based on how much (weight) of the drugs you were caught with. For example, if you were caught with 10kg of marijuana, it’s more likely that you were going to sell it (trafficking) rather than keep for personal use. [READ MORE: 5 More things you didn’t know about Malaysia’s drug laws] The punishment for drug possession can range from a fine to life imprisonment, while drug use or self-administration can net you a fine up to RM 5000 and/or up to 2 years in prison. Either way, it’s probably preferable to a death sentence. Myth 4: The death penalty only covers drugs and murder – FALSE Another popular misconception Malaysians have is, the death penalty is the sentence for drug trafficking and murder ONLY. But that’s actually not the case, as there are around 15 other offences which carries the sentence. It’s a relatively long list, but it can be categorized into national security offences, firearm offences, kidnapping offences, etc. Here’s a more detailed list: Offences against the person of the Yang di-Pertuan Agong, Ruler or Yang di-Pertua Negeri – Section 121A Penal Code Committing terrorist acts – Section 130C Penal Code Abetment of mutiny within Malaysian Armed Forces, if mutiny is committed in consequence thereof – Section 132 Penal Code Abetment of suicide of child or insane person – Section 305 Penal Code Attempt to murder while under a life sentence– Section 307(2) Penal Code Kidnapping or abducting in order to murder – Section 364 Penal Code Hostage-taking resulting in death – Section 374A Penal Code Rape resulting in death – Section 376(4) Penal Code Gang-robbery with murder – Section 396 Penal Code Discharging a firearm in the commission of a scheduled offence – Section 3 Firearms (Increased Penalties) Act 1971 Being an accomplice in case of discharge of firearm – Section 3A Firearms (Increased Penalties) Act 1971 Offences in security areas for possession of firearm, ammunition and explosives – Section 57(1) Internal Security Act 1960 Consorting with person carrying or having possession of arms or explosives in security areas – Section 58(1) Internal Security Act 1960 Abduction, wrongful restraint or wrongful confinement for ransom – Section 3(1) Kidnapping Act 1961 Waging war against the Agong – Section 122 Penal Code Myth 5: The death penalty will deter people from committing crimes – FALSE When the court sentences a criminal, the objective isn’t only to ensure that a criminal gets punished. The court would also want the sentence to be heavy enough, that it discourages others from committing the same crimes or, more simply put, that knowing you could be killed for murdering someone would make you think twice about doing it. Well, in recent years,both the BN- and Pakatan-led governments have been leaning towards the conclusion that this isn’t working. In 2012, Home Minister Hishamuddin Hussein stated that the death penalty failed to act as a deterrent. For reference, police statistics revealed that, from 1990 to 2011, the number of persons arrested for drug trafficking increased from 744 to 3,845. Just recently, Law Minister Liew Vui Keong also expressed doubt on the effectiveness of the death penalty as a deterrent: “But I feel we cannot be convinced that hanging them as the form of capital punishment will serve as an effective prevention in certain cases.” – Liew Vui Keong, as quoted by The Malay Mail What’s going to replace the death penalty? Of course, getting rid of the death penalty doesn’t mean that prisoners on death row will be set free. Rather, their sentences will be changed to life imprisonment or imprisonment for life. While these two terms look like they mean the same thing, they’re actually quite different – which you can read more about here: [READ MORE: What happens if Malaysia abolishes the death sentence?] However it should also be noted that the government will only looking into this when Parliament reconvenes, so for the time being, the death penalty is still in effect."
"What happens if Malaysia abolishes the death sentence? *Article originally published in 2018, updated to reflect current events. Back in 2018, Malaysians were abuzz over the government’s decision to abolish the death penalty for all crimes punishable with the death sentence in Malaysia. Prior to this decision, the previous government agreed to abolish the mandatory death sentence for drug trafficking (read more here) but the government back then planned on taking it a step further by abolishing the death penalty entirely. While it may not be abolished entirely just yet, recently the government has agreed to abolish the mandatory death penalty allowing judges to have discretion in choosing the sentence. You may have wondered what would happen to the convicts who are currently on the death row and what punishments would replace the death penalty but before we delve into that, let’s take a look as to what abolishing the death sentence would really mean by looking at the crimes that are punishable by hanging. [READ MORE: 5 beliefs Malaysians have about the death penalty...that are wrong] There are currently 17 crimes punishable with the death sentence While we may be most familiar murder and drug trafficking, there are actually more crimes that are punishable with capital punishment and we’re going to lay them out for you guys. It is important to note that while we may have 17 crimes punishable by hanging, some are defined as mandatory death sentences while others are discretionary. The difference between these two is that with the mandatory death sentence, the judge must sentence the offender to death if he is found guilty. With the discretionary death sentence, he has to power to decide whether to sentence the offender to death or to a lesser sentence; the judge is given discretion. There are 17 crimes that are punishable with hanging, ranging from mutiny to gang robbery with armed weapons but here are 3 to illustrate how the death sentence works. Murder Murder is found in section 300 of the Penal Code and the punishment is listed in section 302: “Whoever commits murder shall be punished with death.” The word “shall” in the section means that there is no discretion given to the judge; he must sentence the offender to death if he is found guilty. One of the most famous convicted murderers was none other than Mona Fanday and you can read more about her trial here. If you think that her name sounds vaguely familiar, it’s because Mona Fanday was the famous bomoh who was convicted of killing a politician and her life’s story was even converted into a movie. Drug trafficking Drug trafficking is made a crime under the Dangerous Drugs Act 1952 and in section 39B(2): “Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death.” As you can tell, the word “shall” is similarly used in this section which indicates that the death sentence is mandatory. However, some of you may be surprised to learn that the death sentence was not always mandatory for drug trafficking. The law was amended in 1983 as a by-product of the government’s war against drugs (read more here). The abolishment of the mandatory death for drug trafficking was approved last year and this is in part, due to how not much is needed to find a person guilty of drug trafficking. [READ MORE: Why does Malaysia want to give a lighter sentence to drug traffickers?] Waging or attempting to wage war or abetting the waging of war against the Yang di-Pertuan Agong, a Ruler, of Yang di-Pertuan Negeri Many of you won’t be familiar with this crime but it is found in section 121 of the Penal Code which reads: “Whoever wages war against the Yang di-Pertuan Agong or against any of the Rulers or Yang di-Pertua Negeri, or attempts to wage such war, or abets the waging of such war, shall be punished with death or imprisonment for life, and if not sentenced to death shall also be liable to fine.” The death sentence here is mandatory and some may remember this crime from the prosecution of members of Al-Maunah way back in 2001. It is clear that the death sentence is only reserved for the most serious of crimes. So, the question that would be running through your mind is, what’s going to happen to these convicted offenders then? They will probably be in jail for life The government has stated that instead of the death sentence, the punishment for these crimes would either be life imprisonment or imprisonment for life. The difference between these two similar phrases is: Life imprisonment means that the offender would have to serve at least 30 years in prison before getting released Imprisonment for life means that the offender would spend the rest of his life in jail [READ MORE: How does a Malaysian judge decide what punishment to give to a criminal?] At the end of the day, regardless of the punishment that is decided upon, Malaysian laws have always upheld the principles of punishing an offender in accordance with the law and it takes into account various factors such as the severity of the crime and its rampancy."
"The Malaysian government can now sue citizens for defamation. But what's the big deal? When the words “criticize the government” are mentioned in Malaysia, the knee-jerk response may be “sure kena sedition” based on past incidents over the years. However, you might not expect the government to lawyer up and sue you for hurting the government’s reputation! Like how the Sarawak State Government sued Chong Chieng Jen (MP for Stampin at time of writing) for defamation back in 2012, after he published a press statement alleging that under the rule of the then Sarawak government, RM11 billion of the people’s money had disappeared into a “black hole”. If you were following this case back then, you’d know that the the Kuching High Court decided back in April 2014 that governments in Malaysia are not allowed to sue people for defamation because of a certain principle in common law. Common law is in essence a unified system for judges to make judicial decisions back in the UK, which we’ve adopted here in Malaysia. The principle in question comes from a UK case known as Derbyshire County Council v Times Newspapers Ltd, which is often referred to simply as the Derbyshire Principle. Our courts have used the Derbyshire Principle before In the UK case, Times Newspaper had published articles that questioned the legitimacy of Derbyshire County Council’s investments in a pension fund - so Derbyshire County Council sued. Spoiler alert: the court decided that governments should not have the right to sue anyone for defamation - although corporations and individuals in the government can still do so as long as it doesn’t involve their official standing. For example, a government servant can sue if someone spreads false rumours about their personal life, but they can’t sue a person for criticizing their practices. [READ MORE - 3 ways you can get in LEGAL trouble for insulting Malaysian politicians] The problem the court saw was that a government is democratically elected, and should be open to public criticism. If governments were allowed to sue people for defamation, there would be a bar on the people’s freedom to express their criticism, and the media would have to self-censor to avoid risking lawsuits. Returning to the case between the Sarawak government and Chong Chieng Jen, the Sarawak government were not satisfied with the decision that they didn’t have the right to sue, so... The Sarawak government asked the Courts to reconsider… The defamation suit against Chong didn’t end back then, because the Sarawak government appealed to our Court of Appeal in 2016. The appeal got the previous decision reversed, meaning to say that governments ARE allowed to sue for defamation in Malaysia because we have a written law that overwrites the Derbyshire Principle. The court even added that Chong should automatically be found liable for defamation as it was a previously decided matter. Chong naturally wasn’t happy with that decision so he appealed against the appeal to the highest court of the land - the Federal Court. This long-drawn case finally came to an end on 27 September 2018 as the Federal Court dismissed Chong’s appeal, agreeing with the Court of Appeal that the government is allowed to sue for defamation - although they said the Court of Appeal was wrong in not giving him a chance to defend himself. What comes next might surprise you, because our courts have agreed with and applied the Derbyshire principle before! When the former Pahang Menteri Besar, Adnan Yaakob, went after Utusan Melayu for defamation in 2014, his case was dismissed because of the Derbyshire Principle. This happened yet again when Lim Guan Eng sued Perkasa, New Straits Times, and Utusan Melayu in 2016 - the case was stuck out because it was held that the government has no right to sue for defamation. Apparently, the interpretation of law was different in the Sarawak government’s case, which brought up a local law that conflicts with the Derbyshire Principle. The Malaysian law that cancelled the Derbyshire Principle That law was the Government Proceedings Act 1956, which states in Section 3 that: “Subject to this Act and of any written law where the Government has a claim against any person which would, if such claim had arisen between subject and subject, afford ground for civil proceedings, the claim may be enforced by proceedings taken by or on behalf of the Government for that purpose in accordance with this Act.” - emphases added That chunk of legalese basically says that the government is allowed sue for anything that a regular person would be able to sue for. The Court of Appeal detracted from the Derbyshire Principle and went in favour of this law because our Civil Law Act 1956 states although we apply the common law of the UK in Malaysia, we can only do it in areas where we don’t have our own written laws covering the subject. Therefore, since we have Section 3 of the Government Proceedings Act, it can overwrite the Derbyshire principle. So why were the other politicians not allowed to sue? The second thing you’re wondering is probably why the outcome was different for Adnan Yaakob and Lim Guan Eng, even though our laws didn’t magically change overnight. Well, if there’s one takeaway you should get from this article, it’s that the law is usually not clearcut. One of the law’s broad aims is to solve injustice, so judges will sometimes take a “what’s the purpose of these laws?” approach in coming to their legal decisions, rather than just taking the law literally. This comes from a UK case called Smith v Hughes from 1960. Six prostitutes were caught soliciting their services through windows and a balcony. There was a problem finding them guilty of soliciting because the law at the time said that it is an “offence to solicit a prostitute on the street or a public place”. The inside of a building is clearly not a public place, but the court still found them guilty by interpreting the law to see what kind of mischief it was trying to stop - the advertising of prostitutes. Let’s take the Derbyshire Principle as well - the reason it was created was to prevent the government from stifling criticism by suing everyone left right and centre. But if the problem to be solved is that people are throwing wild accusations about the government to discredit them, the Courts may decide to place emphasis on the Government Proceedings Act instead; or maybe even consider differentiating that the government cannot sue for criticism, but are allowed to in the case of unfounded rumours. Before your imagination runs wild, we should clarify that this doesn’t mean you can be sued by the government just for criticizing them, because a claim for defamation has pretty specific criteria to be successful. For example, you can’t successfully sue for defamation if what was said is in fact the truth, or merely fair comment on the matter (more on the criteria in our article linked below) [READ MORE - How does defamation work in Malaysia?] In other words, just because the government has the right to sue you, doesn’t mean that they will be successful in doing so - just like how if you have the right to sue a person, you still don’t know whether you will actually win the case. But it’s not over yet The Federal Court returned the case between the Sarawak Government and Chong Chieng Jen back to the High Court, to decide once and for all whether Chong will be held responsible for defamation. The reason why the decision to allow the government to sue Chong was heavily criticized by legal commentators like the Malaysian Bar Council is ultimately related to the question of freedom of speech. However, like with most other laws, Parliament has the option of amending the Government Proceedings Act if they decide that this law is no longer relevant to the times and should be updated. The case is currently still ongoing, and we will update this article when a decision has been made."
"Zahid Hamidi was CHARGED with money laundering.... But what does ""charged"" mean? Malaysians have recently been buzzing over the latest news – our former Deputy Prime Minister’s and current serving UMNO president’s arrest by MACC. Subsequent to his arrest, you may have read that he was charged with 45 charges of money laundering involving RM72 million and for accepting bribes amounting to RM42 million. While our heads are reeling from the amount of money that is involved, some of you may be left wondering as to what is a charge? You see it being used in news reports all the time, for example: “A man was charged with the murder of his wife who was found dead and stuffed in a suitcase.” “A chief cashier has been charged with theft and criminal breach of trust for siphoning money from the bank he was working at.” While you may be able to infer that when someone is charged, something legal is happening against him, you may not know what goes down exactly. The first thing you gotta know is… A charge is meant to inform In a nutshell, it can be said that the purpose of a charge is to: Inform you of the crime you are being brought to trial for The relevant law involved The punishment you may receive if found guilty The particulars of your crime like the date, the time, the method This goes to the root of making sure that each accused person has a fair trial. If they don’t know what they are being charged with, they wouldn’t be able to defend themselves properly and would therefore, not be able to receive a fair trial. It also means that just getting charged with a crime does not mean that you are guilty of it. This is because... A charge happens when there is enough evidence We’ve covered articles on what happens when you get arrested, does it mean that you are guilty, and the remand process. If you’re wondering when does a charge come in, the process probably looks something like this: Arrest – Remand (to allow for further investigation) – Police gathers sufficient evidence – Police submits evidence to Public Prosecutor – Public Prosecutor brings a charge against you A charge will only be brought against you if the Public Prosecutor (also referred to as the Attorney General) believes that there is sufficient evidence to charge you with the crime and it can only be brought by the Public Prosecutor (or his Deputies) due to the powers that are given to them. [READ MORE: What does the Attorney General in Malaysia do?] How a charge is to be drafted can be found in the requirements listed in sections 152, 153, and 154 of the Criminal Procedure Code (“CPC”). There are even forms of charges found in Form 27 of the CPC. Section 153 reads: “The charge shall contain such particulars as to the time and place of the alleged offence and the person, if any, against whom or the thing, if any, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.” A properly drafted charge will also allow you to prepare your defence because you would know what you’re going up against. If we were to give you a layman example, a charge is like your opponent showing you his cards so that you can know what to defend yourself against in order to facilitate a fair fight. Let’s illustrate how this works: Ali was arrested for committing theft. After investigating, the police compiles the evidence for the Public Prosecutor. The Prosecutor decides that the evidence is enough to bring a charge. The charge mentions that the crime was committed on a Sunday (21 October), near KLCC, at around 12pm-2pm. As Ali is reading the details of the charge, he realises that he can prove that he wasn’t around KLCC at the time because his friend took an Instagram Live Video of him at the exact time, attending a party...all the way in Sungai Buloh. As a matter of fact, the law says that… A wrong charge is okay but a misleading charge is not Section 156 of the CPC tells us that a charge that contains errors in the particulars may still be valid provided that it doesn’t mislead the accused. What error misleads an accused would depend on the facts of the case but generally speaking, it can be things like quoting the wrong section or bringing the accused to trial for a different victim than he was charged with. For example, in the case of Lim Beh, the accused was charged with “offending the Opium Regulations”. The court ruled that because the charge was so vague and didn’t inform Lim Beh of the exact crime that he is being charged with, the error is so serious that the charge was invalid. However, if there are errors which are not enough to mislead the accused, then the courts can use their powers to rectify those errors (read more about it here). Then the trial can proceed like normal and the judge’s judgment won’t be affected by it because of what section 422 says. Section 422 CPC (in part): “Subject to the provisions contained in this Chapter no finding, sentence or order passed or made by a Court of competent jurisdiction shall be reversed or altered on account of— (a) any error, omission or irregularity in the complaint, sanction, consent, summons, warrant, charge, judgment or other proceedings before or during trial, or in any inquiry or other proceedings under this Code” [emphasis added] TLDR; if there is anything you can take away from this article, it’s that being charged does not mean that you’re guilty of a crime and a charge is just like an appetiser; it kicks things off."
"What happens if you accidentally kill someone in a road accident in Malaysia? It’s late at night. You’re driving fast along the roads leading to your home because you’re pretty sure that no one would be around at this time. As you near the last turn to your house, you feel a bit...reckless. You decide to hit the accelerator instead of slowing down and blaze through the turning. Your moment of exhilaration turns into horror as you notice that your neighbour is walking across the road. You slam on your brakes but...it was in vain. You are terrified and panicking because you killed him and the only word that is racing through your mind is “murder” but at the same time, you keep telling yourself it is not murder because you didn’t do it on purpose. So what is it? It’s not murder but... While it’s not a crime under our Penal Code, we have to look at section 41 of the Road Transport Act 1987 (“RTA 1987”) says the following: “Any person who, by the driving of a motor vehicle on a road recklessly or at a speed or in a manner which having regard to all the circumstances (including the nature, condition and size of the road, and the amount of traffic which is or might be expected to be on the road) is dangerous to the public, causes the death of any person shall be guilty of an offence...” In short, section 41 says that if you cause someone’s death by driving in a reckless manner or at a dangerous speed, you would have committed an offence. This offence carries three punishments: Imprisonment between 2 – 10 years A fine between RM5,000 – RM20,000 Suspension of your driving licence for at least 3 years (at least 10 years after the first offence) Aside from the above punishment, the court will also order for the particulars of your conviction to be endorsed on any driving licence that you would hold in the future. Even if you don’t cause death, section 42 makes it an offence for you to drive in a reckless and inconsiderate manner. As a matter of fact, you don’t even need to be reckless, as the law states that carelessness is similarly an offence. To illustrate, reckless is something you do knowing full well of the consequences while careless is when you have done everything to cover it up but inevitably missed out on a crucial factor. For example, reckless is when you know your parents hate tattoos but still get one done in an obvious spot but careless is when you have done everything possible to cover it up but you accidentally lifted your shirt up too high once. If you’re curious, in determining what counts as reckless, speeding, or inconsiderate, the law looks into various factors such as the following: Amount of traffic on the road Nature of the road (the law doesn’t clarify this but we assume this is related to the purpose of the road) Condition of the road Size of the road Paying reasonable consideration to other road users Some of you readers might have noticed that even if someone causes death through reckless driving multiple times, he can still get his licence back at some point. If you’re thinking that it’s not harsh enough... The government is driven to give out lifelong bans According to the Malaysian Institute of Road Safety Research, the year 2016 alone recorded 7,152 deaths due to road accidents. The total number of road accidents? A staggering 521,466 where 80.6% is caused by human error. Given the fact that these numbers are pretty high and increasing yearly, our current Transport Minister has proposed to impose a lifelong ban on drivers who cause death through their reckless driving. “This means that after three years, it is possible for these drivers to drive again. I feel this punishment is not strict enough. If you cause the death of other people on the road, you should be banned from driving for the rest of your life,” – Transport Minister Anthony Loke, as quoted from The Star, 9 October 2018 However, this amendment is a mere proposal as of now. The suggestion would have to be researched and studied before a formal proposal is made to Parliament for it to be debated. In the mean time, regardless of the punishment that may exist, it is always prudent to drive in reasonable and responsible manner that accounts for the wellbeing of every other road user. This avoids pointless deaths such as the one that recently happened in the hit and run in Cyberjaya (the men involved are similarly being investigated for causing death through reckless driving)."
"How to sell a car on your own in Malaysia It’s been ten years, your car is old and the engine coughs louder than that next door uncle. If that’s the case, you’re probably considering selling your car to buy a new, shiny one. However, you’re probably aware that it’s not an easy process and you don’t know how to even start. Well if you are in that predicament, we’re going to provide a step-by-step guide for you to follow! So for a problem free DIY car-selling process, the first thing you gotta do is…. Step 1: Find out how much your car is worth Before you actually start the process, you need to evaluate the financial value of your car. This is due to the fact that, you may have a harder time getting a buyer if you overprice your car and you may lose out if you under-price your car. Imagine if your 2 year old Myvi is worth RM35k and you advertise it at RM45k, we’re sure potential buyers may look for other sellers. If you sell it at RM25k we’re sure buyers will be lining up to buy your car, but you’re gonna lose out on a few thousand ringgits. What you can do to make sure you’re selling your car at a proper rate, is to search for advertisement of cars similar to yours and see the going rate. Make sure when searching for these advertisements, that the cars in those ads are not just the same model, but of the same year and condition. If let’s say you have a Myvi manufactured in 2013 and accident free, search the prices for the similar description. Other things to take into consideration are – modifications, how fabulous your number plate is (eg BBB 8888), and the fact that your car is well-maintained and accident free. Oh, and don’t forget Malaysian buyers are more likely to go “boleh kurang ah?”. Thus, it might help to bump the price up slightly. [READ MORE: Will modifying your car affect the resale value? We look at 7 popular trade-in myths] Step 2: Make sure that people know your car is for sale You can inform your friends to inform their friends that you’re selling your car, and hope that someone is interested. You can also advertise that your car is ‘for sale’ in the newspapers or a suitable online portal. When dealing with the potential buyers, be super careful and beware of scammers. Make sure that during test drives you sit next to the potential buyers so that they don’t drive your car away or steal things in your car. Step 3: Take your car for inspection This step is compulsory because PUSPAKOM has to determine a few things before your car is transferred to the seller. They have to basically see if your car is safe to drive on the road and whether your car is legal. When it comes to determining the legality of your car, they will make sure your car isn’t cloned. If you are wondering what a ‘cloned’ car is, we can illustrate with an example – if let’s say you have a Proton Wira with the plates JCA 7163, there are fellas who will use what may be another stolen Wira but with the same plates. Next, PUSPAKOM will also have to determine if there are no illegal modifications to your vehicle before you sell it off. So if you have an illegal tint for example, remove it before you go for the inspection. To get all of this checked out, head over to PUSKAPOM to make an inspection appointment and pay the appropriate fee. There will be a different fee if your buyer is getting a loan for the car. Step 4: Transfer ownership of the vehicle to the buyer Finally, your last step is to make sure the car legally belongs to the buyer now. This means making sure ownership transfers from you to the buyer. Of course it’s advised that you make sure you get paid up first before you legally transfer the car to the buyer. This process will be done at the Jabatan Pengangkutan Jalan (JPJ), and this will require the attendance of both you and the buyer. All you have to do is fill up a transfer of ownership form and do a fingerprint scan to confirm your identity and…..voila! If these four steps seem a little tedious….. There is an easier way to do this Choosing the DIY route to sell your car may result in two issues: The hassle – because you’re gonna be running around to different places (JPJ, PUSPAKOM, etc). The unfamiliarity – because you’re gonna be doing paperwork you’ve never done it before. Even if you do consider going to a secondhand car dealer, you probably wont know which one to trust and who would give you the best price. But then there’s Carsome and their web based platform which practices a 100% transparent bidding process, so you can avoid the worry of getting cheated. On top of that their requirements are pretty easy. All you have to do is set up an appointment for a car inspection and you can even scan your fingerprint there without going to JPJ. On another plus note, Carsome is offering you a free quotation today. All you have to is fill up the form below, click send, and lust over new cars (no seriously, it’s that easy)."
"How does whipping work as a punishment in Malaysia? If you grew up in a typical Malaysian household, there’s a high likelihood that the ultimate punishment you can receive for misbehaving is the rotan. Caning seems to be the punishment of choice – be it in the home, schools, or even prisons. But unlike the red welts you’d receive from being caned by a parent or teacher, a caning sentence by law (also known as whipping) can be a lot more……..severe. If you’re not squeamish, there’s a whipping video that you can watch here. Also unlike being caned by your parents, caning in the judicial sense is a lot more regimented in the sense that it’s only available for certain crimes (with a set number of strokes), and a person would have to be tried and found guilty in the court of law before the caning can be carried out. When discussing caning in the legal sense, it’s important to note that the punishment is different in when carried out under Islamic law and when it is not. We’ll go through the differences in greater detail over this article but, suffice to say, the whipping punishment is different in the case of the two Muslim women sentenced to six strokes of whipping for musahaqah (sexual acts between women) and a man who was sentenced to two whipping strokes for sexually abusing a baby. The first is in accordance with Syariah criminal law, while the second is under non-Islamic criminal law. For the purposes of this article, we will refer to Syariah criminal law as the Syariah law and non-Islamic criminal law as the criminal law. So let’s start with the basics, which is… The laws that apply to caning We won’t be going into the specifics of which crimes are punishable with caning, but rather to provide a general understanding of how criminal law and Syariah laws apply. Similarly, we won’t go into much detail on why there are separate laws but as a brief mention, this has something to do with the Federal Constitution (the highest law in our country). Criminal law Under criminal law, we have two important laws to look at with regards to whipping. The first is the Penal Code which is the law that describes the types of offences in our country and their corresponding punishments. The second is the Criminal Procedure Code which regulates how criminal trials are supposed to be conducted, how punishments are to carried out, and basically it has something to do with the procedural aspects of criminal law. In essence, these laws are equally applied throughout the country and take precedence over other laws (State or Syariah) unless otherwise stated. For example, if you committed a murder in Johor and ran to Ipoh, you can be arrested and brought to court in Ipoh; where you’ll be charged under the same law and face the same punishment as you would in Johor. Syariah law In contrast, Syariah laws apply only to Muslims and these laws are enacted and enforced by each individual State via the State Legislative Assembly (Dewan Undangan Negeri) using the Syariah Criminal Offences (Federal Territories) Act 1997 as a base model. What this means is that each State has their own Act to regulate Syariah criminal offences within their State and these Acts are based on the Federal Territories Act. For example, Selangor has the Syariah Criminal Procedure (State of Selangor) Enactment 2003 while Perlis has Syariah Criminal Procedure (Perlis) Enactment 2006, and so on. Each State’s Act on Syariah criminal offences is regarded as the Syariah “Penal Code” as they list down the numerous offences and corresponding punishments derived from Syariah. Now that you know the first difference, the laws that apply, let’s move on to difference number two which is… You are whipped differently We’ve covered the kinds of punishments you can receive under the law for committing a crime in a separate article (read more here) but as a quick summary, there are 6 different kinds of punishments that can be given out to people convicted of crimes: Death sentence Whipping Imprisonment Police supervision Fines and compensation Good behaviour bonds Now that you know this, let’s zoom into whipping under criminal law and under Syariah law Criminal law How whipping is carried out is in accordance with the Criminal Procedure Code through procedures laid down in sections 288-290. The main points are as follows: The maximum number of strokes is 24 (10 if you’re between 18-21 years old) The diametre of the rattan shall not exceed 1.27cm No whipping is to be carried out on women, males sentenced to death, or any male over 50 years old (unless he has committed a sexual offence) The Medical Officer must certify that the offender is fit to whip Section 289 reads: “No sentence of whipping shall be executed by instalments, and none of the following persons shall be punishable with whipping: (a) females; (b) males sentenced to death; (c) males whom the Court considers to be more than fifty years of age, except males sentenced to whipping under section 376, 377c, 377ca or 377e of the Penal Code.” Syariah law Section 125 of the Syariah Criminal Offences (Federal Territories) Act 1997 is the main provision to refer to because as you remember, other States use this Act as a base model. The main points are as follows: Both males and females can be whipped (but whipping for pregnant women is postponed) The diametre of the rattan shall not exceed 1.25cm The Medical Officer must certify that the offender is fit to whip The person executing the sentence must be an adil and mature person The whipping rod is to be used with average force without cutting the offender’s skin Whipping can be done on all parts of the body except the face, head, stomach, chest, or private parts As you can see, there are several differences between whipping under criminal law and whipping under Syariah law. The first is that women can be whipped under Syariah law but not under criminal law. The second is that whipping under Syariah law has to be carried by an “adil and mature person” while there is no such requirement under criminal law. Aside from that, whipping done under the criminal law is inflicted on the buttocks and is known to cut and scar an offender for life while whipping under Syariah law does not cut the skin and can be done on other parts of the body other than the buttocks. With all these differences, there is one key similarity in that… Both forms of whipping can be done in public if the court allows it Under section 268 of the CPC and section 123B of the Syariah Criminal Procedure (Sabah) Enactment 1993, the law allows for the court to direct where the whipping is to take place once an offender has been punished. This means that the law allows for offenders sentenced under criminal law and Syariah law to be whipped in public if the court directs for the whipping to be carried out that way. However, it is rare for criminals to be whipped in public as the whipping is often times a severe and bloody affair. On the other hand, we have seen offenders sentenced under Syariah law being whipped in public because Syariah law dictates that the whipping is not to cut the offender’s skin. Besides that, as explained by the Perak Mufti in the recent caning of two women in Terengganu, the purpose of caning under Syariah is to teach and deter others from such actions. However an important point to note is that only Sabah has the provision that allows the court to dictate the place for the whipping to be carried out. The same provisions cannot be found in the Syariah Criminal Procedure (State Of Penang) Enactment 1996 and Section 126 of Syariah Criminal Procedure (State Of Selangor) Enactment 2003. At the end of the day, it can be said that whipping under Syariah law and criminal law are pretty different and understanding these differences can help shape public perception when these sentences are meted out."
"Can you park in reserved spaces after business hours in Malaysia? Have you ever run into situations where you got into an argument with someone who was doing something illegal, but couldn’t really shore up your point of view because...you don’t exactly know the law which makes what they were doing illegal? We’ve covered a few such wrongdoings that everyone kinda knew were against the law but couldn’t back it up, such as booking a parking spot by standing in it, and treating “part-time promoters” as freelancers (they’re apparently considered employees by our labour laws!). And now, we’ve recently received a request from a reader to look into the laws behind reserved parking spaces on public roads – the ones with the red lines – that are making some Malaysians see red. So these are definitely legal as they’re rented from the local municipal council…. But are they actually reserved 24/7, or is there only a certain time when the spot is booked by renters? Rented parking spaces are only reserved during fixed times If you didn’t know better, the natural assumption when you see a parking space with red lines might be that it’s reserved for 24/7 for as long as the parking space is being rented from the local authorities. But in reality, there are “operating hours” for these reserved parking spaces, which can vary depending on the local authorities. For example, the Kuala Lumpur City Hall’s (DBKL) reserved parking spaces are rented out only from 7:30am to 6pm, Mondays to Saturdays - they are free for all after 6pm, on Sundays, and on public holidays. But don’t go assuming every locality has the same rules for reserved parking spaces, because areas like Subang Jaya have much longer hours allowed, as you can see from the infographic below (correct as of 27 July 2017). These regulations may be subject to change from time to time as local councils may decide, so it’s wise to keep yourself informed by checking with your local council about the reserved times in your area. Renters can be fined for blocking reserved parking spaces beyond designated hours Now, if a business owner who’s renting a parking space decides to deny the public access outside of the designated hours, you can report the incident to your local council. It’s an offence since they’re reserving the parking space beyond the allowed time, where, for example, the compound in Subang Jaya in RM80; whereas in Kuala Lumpur, the fine can come under two different laws, resulting in either a fine of RM100, or RM4,000. What’s more, they can also be fined under another laws, depending on which one the authorities want to use (for example, they might decide use the law with a more severe punishment for repeat offenders). For this, we have Section 46 of the Street, Drainage and Building Act 1974, which covers certain scenarios for the offence of “obstruction”. In particular, we’re looking at the sub-provision 46(1)(e): Section 46(1) - Street, Drainage and Building Act 1974 (in part) “Any person who…… (e) deposits or causes to be deposited timber, scrap iron, derelict vehicles or any part thereof, waste materials or other article or thing in any public place;... shall be guilty of causing an obstruction and may be arrested without warrant…” You can see quite clearly that putting any goods like chairs, tyres, and bins in front of a parking space can be considered obstructing a public place. The penalty for this offence is a fine of up to RM500, and up to RM1,000 for repeat offences. A DBKL official has confirmed that this law has been used to fine errant business owners in the past. This also applies to businesses that book regular parking spaces with tyres, cones, or other obstructions, which brings us to…. What about non-reserved spaces that get blocked off? The same laws and penalties above would apply to business owners who “reserve” public parking spaces (the yellow box ones), particularly food and beverage outlets which put their equipment like stalls, tables, and chairs in a few spaces in front of their establishments, or car repair workshops. This is also listed as an offence under “obstruction” because of Section 46(1)(d) of the Street, Drainage and Building Act 1974: “(Any person who)...deposits or causes to be deposited any goods, article or thing used for or in connection with his trade in any public place;... shall be guilty of causing an obstruction and may be arrested without warrant…” As with the previous scenario, you should report these businesses to the authorities to have action taken against them. [READ MORE - 7 things people do at mamak shops you didn’t know were illegal] But don’t take the law into your own hands! When dealing with the rampant parking issues, it can be difficult to keep one’s cool and patience, especially since this problem only seems to get worse over time as the number of cars on the road increase. But even though you now know the law is on your side, it must also be stressed that the real world may not work in the same way. Depending on the situation, it may just be better to move on and call the relevant authorities rather than leaving your unattended car as a huge target of revenge – you may not want to win the battle but lose the war. Situations where reserved parking spaces have been taken illegally (or an angry notice superglued to a parked vehicle) have escalated far beyond the actual parking itself; much like the one between Cheah Jeng Yeh and Sasha Farina Mohd Shapie, where they damaged each other’s cars, and even ended up with a full-blown criminal case where both were brought to court to be tried. This applies for any other parking dispute as well, like when you get blocked by a double-parked car, which can test our patience – but keep yourself on the right side of the law and call for the local authorities to tow the car away if the driver can’t be contacted. [READ MORE - If you hit a double parked car in Malaysia, who's wrong?] In short, what looks like the “easy decision” in exacting sweet punishment may end up costing you much more down the line, so it pays to keep the rage in check and make the smarter decision instead - getting the authorities to do the punishing for you."
"Did you know the PDRM are allowed to sell stuff they confiscate from criminals? Off and on, you’ll see news reports where the PDRM or other enforcement authorities would showcase items confiscated from crime busts – items ranging from drugs to luxury watches to….live tortoises. This leads to the next question of, where do they keep all this stuff? Like, they can’t be lying in a storeroom in Bukit Aman somewhere….right? Obviously there’s a pre-allocated place to catalogue and store everything but, if you consider the sheer amount of items confiscated over the years, it either sounds like a housekeeper’s nightmare or the best party venue ever. Regardless, even the most spacious of storerooms need to be cleaned out every once in a while, so how do they do it? Well…. Yup, the PDRM’s Narcotics Division is auctioning off seized (confiscated) property from various drug busts and investigations. Before you ask, the drugs aren’t up for auction – they’re selling off luxury items and jewelry confiscated from drug-related crime suspects. For reference, this follows Section 10(5) of the Dangerous Drugs (Forfeiture of Property) Act 1988 which allows items that have been confiscated to be forfeited (permanently confiscated) if the Court finds that they were “illegal property” – basically bought using illegal drug money. These auctions happen on a nearly annual basis, although it isn’t the only way they get rid of confiscated items…. There are actually 3 ways they can get rid of confiscated stuff Different crimes involve different laws so, to keep things simple, it’s best to go along the understanding that if a law allows the seizure (confiscation) of property, it will also provide guidelines on how to get rid (dispose) of it. The general reason for this is because items can take up too much space, cost too much to maintain, risk being stolen, or spoil/die. Permission to dispose of these items can come from the Courts, the Public Prosecutor, a Minister, or an officer in charge; again depending on the law in question. As an example, the Section 407A(1) of the Criminal Procedure Code states: Notwithstanding any other provisions, the Public Prosecutor may apply to the Court for the disposal of any articles specified in subsection (2) at any time. While there may be some exceptions (like with wildlife, for example), disposal methods can be narrowed down to returning it to the owner, selling it, or destroying it. Let’s take a look at each in a little more detail. 1. Returning the item to the owner As mentioned earlier, there’s a difference between seizure and forfeiture. Very simply, a seized item is temporarily confiscated (and can be returned) while a forfeited item is permanently confiscated. An easy example is that if the police busts a TV robbery gang, the stolen TVs seized during the operation will eventually be returned to their rightful owners, who will be notified and asked to claim their property. This is in contrast to drugs seized during a bust, where the court will order a forfeiture of the contraband… in a way making it the “property” of the Government. Usually though, the laws provide a time frame to claim these seized items (usually 3 months), after which it will become forfeited and possibly disposed using the other two methods. As an example: Section 414(1) of the Criminal Procedure Code 414. (1) If within three months from the publication of a notification under subsection 413(3) no person establishes a claim to such property and if the person in whose possession the property was found is unable to show that it was legally acquired by him, the property may be sold on the order of the Chief Police Officer. This may sometimes also extend to suspects or convicted criminals, where items seized from them can be returned if they aren’t directly related to the crime. However, this is a pretty complex topic that’s best left for another article. 2. Destroying the item If an item is illegal or dangerous, the only option available for disposal is pure and total destruction. This is usually reserved for stuff like drugs, illegal/pornographic media, and so on. While burning used to be a popular option, it can be considered environmentally unfriendly, not to mention the risk of accidentally getting people high off fumes. These days, drugs and other paraphernalia are disposed in waste management centers as scheduled waste in accordance with the Environmental Quality Regulations 2005 3. Selling an item Using the police auction above as an example, the Dangerous Drugs (Forfeiture of Property) Act allows seized property to be sold in a public auction: Section 26(5) of the Dangerous Drugs (Forfeiture of Property) Act (in part) : Where the movable property seized is liable to speedy decay or deterioration, or is property which cannot be maintained without difficulty, or which it is not practicable to maintain, and which cannot be dealt with under subsection (2), a senior police officer may sell or cause to be sold the same by public auction or in such manner as may be practicable... A question you might be wondering is… where does the money go? Although the Dangerous Drugs (Forfeiture of Property) Act doesn’t specify it, the Criminal Procedure Code does: Section 414(2) of the Criminal Procedure Code – Procedure where no claim established: (2) If within six months from the publication of the notification no person has established a claim to the property, the ownership of the property or, if sold, the net proceeds of it shall then pass to and become vested in the Government of the State in which that property was seized. As mentioned, there are many laws that cover the disposal of seized items, but it can be generally assumed that the profits from the sale would go to the government. So….wanna buy a watch? If you’re looking for some good deals on watches and other sorts of bling bling, the current auction is from 8am to 1pm on Thursday (Oct 18) at Foyer A, Ibu Pejabat Polis IPK Kuala Lumpur. You can view the full rules and conditions as well as list of items on auction here, or see them in person from 9:30am – 1pm on Thursday. Some things to note are that items are sold as-is, and the department is will no longer be responsible for the goods once they’re sold. You can place a deposit of 5% (or a maximum of RM1,000) via bank draft or postal order and make the full payment within 7 days – so no need to carry along huge bags of cash."
"What can you do if a Malaysian developer doesn't finish building your house on time? In life, it’s always nice to own new things, whether it may be a new phone or a new car or even...a new house. However, while you usually have to wait a few hours or days for a new phone or car, a brand new house from the developers can take years since they’re building it from scratch. But since you really want to be a homeowner with a new house, you decided to take that leap of faith. The developer assures you will get your new house within 2 years which would be perfect for you and your new spouse. You sign the contract andddd you wait. Months pass, the developer sends you a letter saying that due to certain reasons, they can’t meet deadline. You are annoyed but you and your new spouse camp it out in your parents’ house and wait some more and wait and wait and wait... You’re beyond annoyed now and now you’re starting to wonder, when are the developers suppose to cough up the keys anyway? The law has a set timeline for developers We know that we always tell you that there is no such thing as a “standard contract” but when it comes to buying houses from developers, the government saw fit to step in and create a “standard contract” in order to protect homebuyers from unscrupulous developers. We’ve covered this in another article and you read more about it here. As a quick explanation, generally speaking, there are two types of “standard contract”: Schedule G for landed properties such as bungalows, terrace houses, etc with individual titles Schedule H for high-rise properties such as apartments, condominiums, landed properties with strata titles, etc As you can tell, the standard contract that you’re signing depends on the type of title your house comes with. In turn, the standard contract prescribes the time for the developer to hand you the keys to your new house. This is known as delivery of vacant possession. For individual titles, the time for delivery of vacant possession can be found in Schedule G: “Vacant possession of the said Building shall be delivered to the Purchaser in the manner stipulated in clause 24 herein within twenty-four (24) calendar months from the date of this Agreement.” [emphasis added] This means that the developer must hand the keys to your house by or before the expiry of 24 months if you purchased a house with an individual title. For houses with strata properties that fall under Schedule H, the clause reads the same with the exception of the delivery of vacant possession being 36 months. Now that you know that there is a set time, the next question is, can they actually extend this timeline like in the scenario we gave you above? Only the government can extend the timeline The Housing Development (Control and Licencing) Regulations 1989 (“HDR”) allows for the Minister of Urban, Wellbeing, Housing, and Local government to issue an extension of time if there are special circumstances or if the developer faces hardship in complying with the deadline. It appears that the law leaves the decision of whether or not to allow an extension of time in the hands of the government but in a recent case of Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan and another v Ang Ming Lee and 34 others, the courts ruled that before the government decides to extend the time for delivering vacant possession, the purchasers’ point of view must be heard first. If their point of view is not heard, then any extension of time is considered invalid. The courts said the following: “Authorities are in abundance to support the view that the courts will imply into the statutory provision a rule that the principle of natural justice should be applied...As the rights of the purchasers to claim damages in the event of delay would be adversely affected or even extinguished by the exercise of such discretionary power, it is our judgment that the purchasers must be given an opportunity to be heard prior to any decision made...” – Court of Appeal in Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan [emphasis added] TLDR; the time cannot be extended unless there are special circumstances and your views have been heard. Some of you may have noticed that the decision the judges made was also affected by the fact that your right to damages would be affected. This means that... You can get money if the developer is late If your parcel is delivered late, you can only rant about it on Facebook but if the keys to your house are delivered late then you get...money (known legally as damages). This is similarly provided for in the clauses in Schedule G and H. We won’t replicate the clauses here but the essence of the clause are the following points: Developer fails to deliver vacant possession within the time period specified Developer to pay you liquidated damages (known as “LAD”) The damages are calculated on a day to day basis from the date you were supposed to receive the keys to the date you actually receive them The rate is 10% per annum of the purchase price of the house To sum it up, if the developer hands over the keys to your house late, you would be able to receive compensation for the delay and the formula for determining the damages is already provided for in the standard contract. The provision of a standard contract helps make things clear for both you and your developer; you know when you’re going to get your property and they know how much they have to pay if they are late. In addition, the courts have shown in the case mentioned above that they are willing to help push forward the government’s aim of protecting homebuyers. [READ MORE: What can you do if your Malaysian developer abandons your property?]"
"“Tertuduh dari Ipoh ditahan reman” – tetapi apakah makna reman? Baru-baru ini kami menerima satu soalan dari pembaca ASKLEGAL yang berbunyi: Adakah polis mempunyai hak untuk menahan anda jika anda belum dituduh secara rasmi untuk sesuatu jenayah? Mari kita lihat contoh situasi berikut: anda sedang bersuka ria dengan kawan-kawan anda di kelab malam, minum dan berdansa, macam biasa, dan anda semua tidak melakukan apa-apa aktiviti yang salah. Tiba-tiba semua lampu kelab menyala, rupa-rupanya ada serbuan polis! Tata kala polis sedang memeriksa kad pengenalan setiap pengunjung, mereka terjumpa beberapa pil berhampiran anda, dan lantas mereka menahan anda untuk siasatan lanjut. Anda dimasukkan ke dalam lokap namun anda masih lagi tenang menghadapi situasi anda sudah banyak baca artikel di AskLegal dan anda tahu anda akan dibebaskan dalam masa 24 jam. Malangnya pada jam yang ke 20, pegawai polis memberitahu anda yang mereka akan membawa anda ke mahkamah untuk mendapatkan perintah tahanan selama seminggu terhadap anda. Contoh yang ringkas dan mudah ini akan membantu anda memahami apakah itu tahanan reman, tetapi sebelum kita kaji dengan teliti, mari kita lihat beberapa perkara asas. Apabila abam polis menyoal kita, ianya bukan semestinya bermaksud mereka menangkap kita Perkara pertama yang harus kita ingat adalah bukan semua interaksi kita dengan polis akan berakhir dengan penangkapan. Seksyen 15 Kanun Prosedur Jenayah (“KPJ”) menjelaskan situasi di mana tangkapan boleh berlaku: “Apabila pegawai polis atau orang lain hendak menangkap orang ia hendaklah menyentuh atau mengurung badan orang yang hendak ditangkap itu, melainkan jika ia menyerahkan dirinya melalui percakapan ataupun tingkah lakunya.” Umumnya, tangkapan boleh berlaku dalam 3 situasi: Apabila PDRM menyentuh anda Apabila PDRM mengurung anda Apabila anda menyerah diri kepada PDRM Jika mereka hanya menyoal anda, ini tidak bermakna mereka menahan anda. Tambahan pula, anda mempunyai hak untuk mengetahui sebab anda ditahan secepat mungkin di bawah seksyen 28A KPJ. Ada juga hak-hak lain yang perlu anda tahu jika anda ditahan. [BACAAN LANJUT – Apakah hak anda jika anda ditahan PDRM?] [BACAAN LANJUT – Bagaimana anda tahu yang anda ditahan oleh PDRM?] Jika anda ditahan, PDRM hanya boleh menahan anda sehingga 24 jam untuk tujuan membantu dan melengkapkan siasatan mereka. Di penghujung 24 jam tersebut, jika pihak polis merasakan yang anda tidak bersalah, mereka mesti membebaskan anda. Namun ada juga situasi di mana anda boleh ditahan lebih dari 24 jam dan di sinilah mahkamah akan mengeluarkan perintah tahan reman. Perintah tahan reman boleh diberi sehingga 14 hari Perintah tahan reman boleh diberi jika pihak polis berpendapat bahawa siasatan tidak boleh dilengkapkan dalam masa 24 jam. Dalam situasi ini, pihak polis akan membawa anda ke hadapan Majistret sebelum berakhirnya tempoh 24 jam dan mengemukakan petisyen kepada mahkamah untuk perintah tahan reman. Jadi, perintah tahan reman boleh diberi oleh Majistret untuk membolehkan PDRM meneruskan siasatan mereka. Selain itu, perintah tahan reman hanya boleh dibuat untuk menahan si tertuduh dalam kes jenayah dan bukannya saksi sepertimana dalam kes PDRM v Audrey Keong. Seksyen 117(1) membolehkan perintah tahan reman diberi: “Apabila seseorang ditangkap dan ditahan dalam kurungan, dan nampaknya penyiasatan tidak dapat dihabiskan dalam tempoh 24 jam sebagaimana yang ditetapkan oleh seksyen 28, dan ada sebab-sebab untuk mempercayai bahawa tuduhan atau maklumat itu adalah berasas, maka hendaklah pegawai polis yang menjalankan penyiasatan itu dengan segera menghantar satu salinan catatan harian yang ditetapkan kemudian kelak mengenai kes itu dan bersama-sama itu juga hendaklah menghantarkan orang yang tertuduh itu di hadapan Majistret itu.” Tempoh reman bergantung kepada budi bicara Majistret tetapi garis panduan asas adalah seperti di bawah. Jika kesalahan tersebut boleh membawa hukuman sehingga 14 tahun penjara, maka Majistret boleh memberi dua perintah tahan reman; perintah pertama tidak boleh melebihi 4 hari dan perintah kedua tidak boleh melebihi 3 hari. Ini bermakna jumlah hari anda boleh ditahan reman adalah selama 7 hari untuk kesalahan itu. Jika kesalahan tersebut boleh membawa hukuman melebihi dari 14 tahun penjara, maka Majistret boleh memberi dua perintah tahan reman; perintah pertama tidak boleh melebihi 7 hari dan perintah kedua tidak boleh melebihi 7 hari. Ini bermakna jumlah hari anda boleh ditahan reman adalah selama 14 hari untuk kesalahan itu. Tetapi kenapa perlu reman dua kali? Ini adalah kerana perintah pertama dibuat apabila pihak polis membawa anda ke hadapan Majistret apabila siasatan tidak boleh dilengkapkan dalam masa 24 jam pertama. Perintah kedua dibuat bila perintah pertama berakhir apabila pihak polis merasakan bahawa mereka memerlukan lebih banyak masa untuk menjalankan penyiasatan terhadap anda. Ia perlu diingatkan bahawa sebelum perintah reman dikeluarkan, pegawai penyiasat mesti memberi satu salinan catatan harian kes (“investigation diary”) kepada Majistret. Ini diberi dalam seksyen 119 dan kegagalan dalam melampirkan catatan harian kes akan menjadikan sebarang perintah tahanan reman salah di sisi undang-undang seperti mana yang disebut dalam kes Re The Detention of Leonard Teoh Hooi Leong. Catatan kes harian adalah semua nota oleh pegawai penyiasat seperti tarikh permulaan siasatan, tempat-tempat yang telah dikunjungi dan kenyataan semua keadaan seperti mana yang ditentukan olehnya semasa siasatan dibuat. Catatan siasatan harian akan membantu Tuan Majistret untuk membuat keputusan sama ada perintah tahan reman harus diberi atau tidak. Tetapi jika anda fikirkan bahawa anda boleh diikat jamin oleh keluarga atau rakan anda, hajat tersebut mungkin tidak kesampaian kerana.... “Ikat jamin bergantung kepada syarat reman” Ikat jamin (“bail”) adalah “kebenaran” yang diberikan oleh pihak mahkamah untuk si tertuduh pulang sementara menunggu perbicaraan. Apabila perintah ikat jamin diberi, anda perlu membayar sejumlah wang kepada mahkamah dan jika anda gagal hadir ke mahkamah untuk perbicaraan, maka wang tersebut tidak akan dikembalikan. Pemberian ikat jamin juga bergantung kepada jenis kesalahan dan budi bicara mahkamah. [BACAAN LANJUT – Apa itu ikat jamin?] Namun ikat jamin hanya boleh diberi kepada beberapa jenis kesalahan dan ianya juga bergantung kepada perintah tahan reman. Ini bermakna jika anda boleh diikat jamin apabila anda dituduh melakukan kesalahan, hak ikat jamin hanya akan berkuat kuasa selepas tempoh tahanan reman. Dalam kes Duis Akim ianya diterangkan bahawa tertuduh tidak boleh diikat jamin ketika dia ditahan reman. Dalam erti kata lain, walaupun anda berjaya mendapat perintah ikat jamin, anda masih lagi perlu menunggu sehingga tempoh perintah tahan reman berakhir sebelum anda dibebaskan. Sebelum anda mengamuk, ingat bahawa perintah tahan reman bertujuan untuk membantu pihak polis dalam siasatan. Jika anda dibebaskan dengan ikat jamin ketika siasatan masih lagi dijalankan maka ianya sukar bagi mereka untuk membuat dan melengkapkan siasatan. Ini belum lagi diambil kira jika anda benar-benar bersalah. Manalah tahu, anda boleh mengambil peluang ini untuk memusnahkan semua bukti yang boleh mengimplikasikan anda dengan jenayah tersebut. Kalau itu kesnya, maka tak bergunalah perintah tahan reman. Jadi itulah dia kawan-kawan, jika anda rasa anda ditahan secara tidak sah, anda boleh mengemukakan saman sivil terhadap kerajaan tapi anda harus ingat bahawa jika polis menahan anda dengan cara yang tidak sah di sisi undang-undang ataupun menahan anda dengan tidak sah, ini tidak akan mempengaruhi perbicaraan jenayah yang mungkin akan melibatkan anda. Dalam kes ini, anda hanya boleh mengemukakan saman terhadap kerajaan (atau pakai ilmu sihir hitam). (Ataupun, upah seorang peguam)"
"How to protect yourself from robbers in Malaysia For many Malaysians, the last thought on our minds rightttt before we drift off is...did I lock the door? This is a fear that all Malaysians live with – the fear of a robber entering our house. This is also why many of us splurge on security grilles and some even buy baseball bats for protection. However, one question gnaws at the back of our minds always – how far can we go to defend ourselves? We’ve read it in the papers, the cases of Malaysians being arrested for defending their homes during an invasion. For example, a man in Johor was arrested for allegedly killing an armed robber who broke into his home. Does this mean that Malaysia punishes the good guys for standing up to the bad guys? The short answer to this is no because you do have the right to defend yourself but this must be done in accordance with the limits of the law. We’ve covered this issue in detail in another article but we’re going to give 5 steps that you would hopefully bear in mind if you are ever (touch wood) faced with such a situation. It would be best for you to read the article linked below first before tackling this article because it provides a more in-depth explanation on the law. [READ MORE: Why do some Malaysians get arrested for killing robbers in self-defence] Step 1: Know the law We know this sounds redundant and we’re not saying memorise the law but it’s important to understand the nuances of the sections that give us the right to self-defence. The relevant laws can be found in sections 96 – 106 of the Penal Code. This right to defence may extend to even allowing you to cause death if you’re ever in a situation of rape, robbery, kidnapping, arson, and so on (section 100). However, there are conditions for this right to apply as explained in section 97: “Every person has a right, subject to the restrictions contained in section 99, to defend...” The question then is what are the restrictions in section 99? While section 99 contains 4 exceptions, but for the purposes of this article, only two apply. Therefore, the right to self-defence when dealing with robbers does not apply when: There is time for you to seek help from the police You use more force than is necessary to defend yourself These two restrictions are explained in greater detail here but some quick examples: If you spot a robber lurking around your house and decide to confront him instead of taking that time to call the police, you may not be able to plead self-defence If you confront a robber with a knife and he surrenders but you continue stabbing him, you may not be able to plead self-defence We would like to point out that examples are very broad and it’s hard to determine when and if self-defence would apply because it’s application is dependent on the facts of each individual case. Step 2: Prepare your line of (right) defences Now that you know what the law says about self-defence, you can prep for emergency situations. For example, you can always remember to keep your doors and windows securely locked. Invest in some good home security systems because prevention is better than cure. Aside from that the following steps might be useful to implement: Have a plan for when emergency strikes that everyone in your household should know e.g the children should run to the bedroom in the corner to hide and so on Keep (legal) self-defence weapons in easily reached areas and make sure you remember where they are. By legal, we mean that weapons that the courts are more likely to regard as reasonable force than not. For example, it’s better to attack with a pepper spray (which are legal, read more here) rather than a machete. Know the numbers to emergency services such as: Police and ambulance – 999 Fire department – 994 Civil defence – 991 Do remember that sometimes the illusion of security can sometimes be better than security itself. So, in preparing your line of defences, try to make your home seem like a really bad target to burgle and that may go some ways in helping you. However if you ever find yourself in a home invasion situation then you need to know the next step. Step 3: Assess the situation We know this might be a hard advice to comply with but...always try to keep your cool. If there is an armed robber in your house, it might be best to give in to his demands in order to keep you and your family safe. Do not act rashly or try to be a hero. Try to take into consideration everything that is at stake before acting. Step 4: Keep your cool If you feel like you have no choice but to attack the robber in order to defend yourself, remember not to add in a few more kicks and punches (or worse) after the robber has been subdued because that might go beyond the definition of reasonable force. Once you have subdued the robber, it would be best to secure him and the entire situation. By this, we mean removing all weapons from his reach, tying him up, and placing him under guard. Step 5: Call the police and your lawyer While making sure that the robber is immobilised, call the police and inform them of the emergency. While waiting for their arrival, don’t try to hide evidence of the fight or scuffle but leave everything as it is while placing a call to your lawyer. Chances are, if you have acted to your best ability in accordance to the law, the police might not even press charges but it would be best to have your lawyer beside you to guide you through the entire process. Plus, it would help minimise any fear or lost feelings that you may have while navigating the legal system. These 5 steps may not be applicable every time in every single scenario but it’s a decent platform to start from. If you have any other tips that you would like to share with us, do drop us a comment. Once again, we recommend reading the article linked below in detail to better understand the nuances behind the law on self-defence. [READ MORE: Why do some Malaysians get arrested for killing robbers in self-defence]"
"How to avoid identity theft if your phone gets lost or stolen in Malaysia Whether left behind in the bathroom or having the phone snatched from their hands at a sidewalk (both happened to this writer’s friends btw), we all know someone who’s had their phone lost or stolen – or even personally experienced this ourselves. Off-hand, you might just assume that your poor phone is probably being sold or salvaged for parts… but you may want to think again. We’ll bet that at the time you’re reading this, your phone is logged in to your email and social media accounts at the very least. This means that if the person who found or stole your phone has more ambitious intentions than just selling it, you’ll be in for a whole lot of headaches and heartaches. Basically, this means that someone with access to your phone also has access to all the information and accounts stored in it. In other words, contact information can be copied and sold, photos can be compromised, social media and email accounts can be hijacked, and so on to the point that, perhaps, even arresting the hijacker and retrieving the phone cannot undo the damage caused. While we could go into the laws on how this might be illegal and what punishments the thief/hijacker can face, what’s more important is noting that, for the most part, the damage is already done. Thankfully there are some measures that can be taken to prevent this from happening, and these apply whether you’re on iOS or Android. 1. Use a pin-protected lockscreen While nothing beats the convenience of instant access to your phone, a lockscreen will provide the first line of defense. It’s important to note that lockscreens can be quite easily bypassed regardless of iOS or Android (Google it), so it’s more of delaying access rather than an all-and-out solution. If you’re on Android, note that using a Pin is way more secure than using a Pattern. In fact, someone is 64% more likely to figure out a patten code after seeing you do it once, compared to 11% on a Pin code. Of course, this won’t be as relevant if you use a fingerprint scanner or Face Unlock. Either way, the reason you want to delay someone from accessing your phone is because… 2. You can remotely Lock/Wipe/Locate your phone Both Apple and Google have released official apps to help you manage a lost or stolen phone – Find My iPhone for iOs and Find My Device for Android. For the most part, phones will come with the apps pre-installed, but make sure you have them set up and activated! Essentially, the moment you realize that your phone is missing, you’ll have to: Get access to another phone or computer. From the browser, access the desktop version of the app – Android link here | iPhone link here Sign in to your Google / iCloud account. You can also login to the app from another phone if the owner gives permission. Here, the features slightly differ from iOS to Android, but both essentially allow you to do the following: See your devices’ current location – If you’ve misplaced your phone Make your device play a sound and display a message – If you’ve misplaced your phone or want to annoy the thief Lock your device and log out of important accounts – To be used if you think your device is still retrievable Wipe your device – This is the “nuke” option. Activating this will completely erase data on your phone and restore it to factory settings One thing to note is that some of these features may not work if you have disabled certain features like GPS or if the phone is in power-saving mode. However, remote locking or wiping will take effect as long as there’s a data connection (or once data is reconnected). If you’re able to locate your phone and want to get it back, notify the police and ask them to escort you – don’t do it alone! It’s best that you enable these features on your phone and take a moment to familiarize yourself with them – just remember that testing the Wipe function will actually wipe your phone so don’t say we didn’t warn you! Also, if you’re borrowing someone else’s phone or laptop, don’t forget to log out. 2a. Encrypt your phone Encryption may sound super technical (and it is) but, for purposes of this article, you can consider it an optional delaying tactic. The idea behind this is that the person who finds/steals your phone may turn it off so you can’t remotely track them. An encrypted phone will add another barrier between their grubby fingers and your private information when they turn the phone on again. On an iPhone, encryption is automatically enabled the moment you’ve set up your PIN number/Touch ID. It’s recommended that you enable the option to wipe the device after 10 failed attempts to unlock it. On Android, encryption is not usually enabled by default. Because there are many versions of Android in the market, some manufacturers may not include this feature or may rename it. Usually though, it can be found under the Security settings. 3. Change your passwords ASAP If someone has access to your phone, they can just as easily change your passwords to lock you out of your own accounts. If that happens, you’re either going to say goodbye to your emails/friends/followers, or begin the arduous task of reclaiming your accounts by confirming your identity. Changing passwords will immediately log you out of the particular account. Remember to do this for your email accounts as well, because a hijacker can easily tap “Forgot Password” to regain access! Also, no matter how forgetful you are, NEVER note down your bank account PINs or online banking passwords on your phone! 4. Tell everyone that you lost your phone Feel free to rant and gripe about your lost phone or the state of Malaysian society to your contacts – but the main point is to give them a heads-up that there could be someone else using your accounts, and they should ignore any messages or requests for the time being. Unsuspecting family members or friends can unwittingly end up parting with sensitive information or be scammed out of their money. Prevention is better than cure Again, the law can only go as far as retrieving your physical phone or give you the satisfaction that justice is delivered if the thief gets arrested. But the law cannot get your accounts back or completely remove any photos or information leaked online. As an example, hundreds of private photos of celebrities that were leaked online in the 2014 iCloud security hack (also called The Fappening) remain online and discoverable to this day despite numerous takedown requests and even a lawsuit against Google to remove them from their search engine. So just like how you’d take measures to prevent someone from robbing your house, the same can be done to your phone following the steps above. As an additional security note, it’s also a good idea to perform a factory reset on your phone before you discard, sell, or send it in for repairs. If you’re selling an iPhone or iPad, log out of Apple ID before you do a factory reset, and remove the device from your list of trusted devices on iCloud, otherwise the legitimate buyer won’t be able to use it."
"Can friends ""refer"" your contact to companies without your permission in Malaysia? There are some things is life that can be considered unsolvable mysteries, such as the JFK assassination, alien abductions, and…. How the heck that telemarketer got your phone number?? Most of them are from your banks, or might be trying to sell you insurance, but have you ever been called by a company which you’ve never done business with before? Where on earth did they get your number from eh? Bigger mystery! [READ MORE - How do I use the Malaysian PDPA to stop telemarketers from calling me?] There’s a possibility some of these guys got your details through data breaches like the time personal details behind 46.2 million Malaysian numbers were offered on the Lowyat forums. But the real cause might not even be something that serious. You might just find that what happened was a friend of yours recently gave your contact details to a company as a referral, in exchange for some free products or services… [READ MORE - Are Malaysian Telcos responsible for the Lowyat data breach? Can we sue them?] You might not like your friend sharing your number without your permission, but is there any legal action you can take? And do you go after your friend, or the company? Your friend is probably off the hook Most countries don’t have any laws about giving out a person’s contact details, and Malaysia is no different. So...your friend probably won’t get into any legal trouble (unfortunately…) It’s not like there aren’t safeguards in place to protect our personal information, but while we have the Personal Data Protection Act 2010 (PDPA) in place to protect our personal information, this law only applies to people and companies that collect personal information...in relation to commercial transactions only. So the PDPA will not apply to your friend unless he makes a living out of giving your number to other people, or gave your personal details out as part of a business transaction. But, if your friend somehow has enough of your information to sign you up for a membership (as a prank maybe), that could end up as a case of “cheating by personation” under Section 416 of the Penal Code - basically it’s pretending to be someone else in order to get a person to do something. Otherwise, contact details are generally seen as free and open for people to obtain. But...the company that got your contact is not allowed to use it While your friend probably doesn’t use your contact details to do business, the company that got your details is a collector of personal data for commercial purposes - to get and maintain customers. The company can certainly use your friend’s details since they were freely given, but the company can’t use your contact information unless you consented to it. Personal Data Protection Act 2010 - General Principle (in part) “A data user shall not…...process personal data about a data subject unless the data subject has given his consent to the processing of the personal data…” This means it’s illegal for them to call you, since they didn’t exactly get your permission to collect or use your data. There are 7 principles in the PDPA which protect your personal info, among which, you’re supposed to know if your contact details were being collected, what info exactly was collected, and exactly what the company wants to use it for. In essence, companies that operate in Malaysia need your permission to collect and use your information. Personal Data Protection Act 2010 - Section 30(1) “An individual is entitled to be informed by a data user whether personal data of which that individual is the data subject is being processed by or on behalf of the data user.” In usual cases where you’re applying to open an account with a service provider, these notifications will normally be in the fine print of your registration forms and/or contract. But if you’re not informed in one way or another, the company could get into big trouble, with fines of up to several hundred thousand ringgit depending on the severity of the offence. You can learn more about how the PDPA works in our article linked below. [READ MORE - How do I use the Malaysian PDPA to stop telemarketers from calling me?] You can report offending companies to… If an unauthorized company has gotten their hands on your contact info without your knowledge, you can (and should) report them to the Department of Personal Data Protection. You can either file a report at their website, or send them an email. Detail the incident as clearly as you can, and attach any files or pictures you may have to help their investigation (for example, if the unauthorized company reached out over email). The same goes for if you suspect your personal details were sold illegally (and not traded by your friend for a coupon). On the off chance that you’ve suffered losses (whether reputational, financial, harassment, etc.) from your information being misused, you can also seek compensation through the courts - contact your lawyer to see what can be done."
"How To: Make sure your friends pay back their I.O.U.s in Malaysia So you have or are thinking about giving a loan out to someone. Understandably, you may have doubts, thinking: “how do I know if they can pay back?” That’s the number one nightmare when you give a loan of any size to friends or family. While you may be prepared to write off small amounts like RM10, the story changes when thousands of Ringgit are involved. What can you do to get your money back then? Here are some steps you could take to protect yourself when giving a loan to friends and family. 1. Record your loan in a document or agreement If you’re going to give a friendly loan, the very first thing you should consider for your legal protection is to get a loan agreement (a contract). If that sounds like too much to go through (especially if you need to consult a lawyer), the least you can do for yourself is to get a promissory note (or I.O.U.) written in your favour. This makes sure that you have documented evidence that the loan exists in the first place. You should include details like how much the loan is for, what are the terms of repayment (lump sum, or by installment, etc.), or what happens if they fail to repay you. Even a simple handwritten note will do it - as long as the necessary details are there it’s enough proof that your loan is real, no need for anything official. There’s a guide for writing promissory notes on WikiHow you can refer to. 2. Always keep evidence of the money transfers You’ll want to keep any and all evidence that can prove that you passed your friend money. This will be your text messages, email, bank slips, receipts - anything recorded that can prove that money really changed hands between you two. This will help you prove your side of the story in case you have to bring the matter to court. Make sure you keep this evidence even if you have a contract. Although the contract proves you had an agreement, it doesn’t prove that the money was actually transferred! 3. Consider charging interest on late payments Depending on how you see it, a controversial way to encourage timely repayment is to charge interest. According to case law at the time of writing, it’s not outright illegal to charge interest on a friendly loan, although the courts reserve the right to strike out any unfair interest charges for cases that get brought before them. (No, this does not make you an Ah Long as long as you don’t make these loans all the time to make money) [READ MORE - Are you allowed to charge interest for loans to friends and family in Malaysia?] Some people choose to charge interest on the entire loan, and also charge a penalty for late payments. Others only charge interest on late payments. It’s up to you in the end, and this is just an option to consider. 4. You can file a small claims procedure (no lawyer required) If the amount you loaned out is less than RM5,000. You can file what is known as a small claims procedure to bring your case to court - just fill out a form and pay RM10, no lawyer needed. Keep in mind that for higher sums, you’ll need a lawyer’s help to sue for your money. Check out our guide on how to make a small claim in the Magistrates Court. For a more detailed run-through of how it works, you’ll want the link below: [READ MORE - If someone borrows money and doesn't pay you back, Malaysian law can help] 5. Only lend what you can afford to never see again This almost goes without saying - you should avoid lending out more than you can afford to lose, even to people you trust with you life. Anything could happen and there are so many reasons why they might end up not being able to repay you (such as accidents and tragedies). To be prudent, don’t leave your financial security to chance - even if you never get your money back, make sure that you are financially secure, and your lifestyle isn’t affected."
"Banyak masalah buat kerja freelance kat Malaysia? Kontrak dapat membantu anda Jika anda seorang pekerja lepas (freelance) ataupun kenal sesiapa yang buat freelance, mungkin anda dah dengar banyak cerita ngeri tentang perihal kerja ini, dari kisah hanya dibayar wang ehsan dengan alasan “menambah pengalaman” atau dapat “exposure” sehinggalah kerja yang bertimbun tanpa bayaran...dan lain-lain pasal yang dah bosan didengar. Menurut tanggapan umum, pekerja lepas (freelancers) bukan pekerja untuk sesebuah syarikat dan dengan itu, tidak tertakluk kepada undang-undang pekerjaan. Oleh itu ramai yang menganggap bahawa sebagai serorang freelancer, apa saja pengupah mahu, anda kena ikut saja. Ini sebenarnya tidak benar dalam semua kes, kerana (bergantung kepada situasi) kerja “freelance” boleh tertakluk di bawah “penggajian” (employment) menurut definisi undang-undang. Kalau demikian, anda mugkin boleh mengemukakan saman terhadap pengupah anda di bawah undang-undang pekerja dan diberi pampasan. [BACAAN LANJUT – Bagaimana freelancer di Malaysia dilindungi di bawah undang-undang] Tetapi sebaliknya, freelancer juga dapat mentakrifkan hak dan tanggungjawab mereka dengan menulis kontrak dengan pengupah, dan bukan sahaja secara perjanjian lisan. Kontrak boleh memberi perlindungan undang-undang kepada anda Jika anda seorang freelancer dan bukannya seorang pekerja di bawah undang-undang, maka semua perselisihan yang bakal berlaku bergantung kepada kontrak anda dengan pelanggan anda – dan rata-rata ini tidak dibuat oleh kebanyakan freelancer. Kontrak tidak akan dapat menyelesaikan semua masalah, tetapi kebanyakan masalah am yang bakal dihadapi freelancer boleh diselesaikan dengan kontrak yang sah. Kontrak boleh juga menerangkan cara satu-satu masalah yang bakal timbul boleh diselesaikan, dan jika benar-benar diperlukan, anda ada rekod persetujuan apabila anda ingin membuat prosedur tuntutan kecil. [BACAAN LANJUT – Anda boleh membuat prosedur tuntutan kecil untuk menuntut bayaran dari pelanggan] Anda tidak semestinya mengupah peguam untuk menulis kontrak, tetapi anda masih harus bersetuju dengan pengupah tentang pelbagai syarat utama dan merekodkannya dalam “black and white”; kalau perbualan melalui e-mel atau SMS pun lebih baik daripada tiada bukti langsung. Syarat utama di sini bermaksud syarat seperti jumlah bayaran, cara pembayaran dibuat (sebagai contoh: sekali bayar ataupun ansuran), dan skop kerja. Dengan itu, mari kita lihat beberapa contoh yang boleh anda sertakan dalam kontrak freelance anda untuk mengelakkan kesulitan. 1. Syarat bayaran Menyelesaikan: Pengupah tak bayar mengikut masa, atau tak bayar langsung. Juga boleh digunakan untuk persetujuan jadual pembayaran. Syarat bayaran menjelaskan jumlah dan tarikh bayaran yang perlu dibuat. Di sinilah anda boleh menetapkan jika anda akan dibayar mengikut jam atau kadar rata. Sesetengah pihak juga menetapkan syarat seperti bayaran pendahuluan ataupun bayaran ansuran untuk memastikan yang mereka memiliki wang yang mencukupi untuk meneruskan pekerjaan. Sebagai contoh, jika anda diupah untuk menerbitkan sebuah video korporat, menyewa lokasi penggambaran mungkin menelan perbelanjaan yang tinggi, terutamanya jika ia melibatkan lokasi komersial seperti litar lumba. Bayaran pendahuluan membolehkan anda menjalankan kerja tanpa menanggung kos yang besar dari poket sendiri. Jika anda memerlukan sebarang permintaan khas berkenaan bayaran, syarat bayaran boleh digunakan untuk membuat permintaan ini. Contohnya seperti kaedah bayaran (cek atau transaksi bank). 2. Hak milik projek Meyelesaikan: Membuatkan projek lebih fleksibel. Mengelakkan perselisihan tentang hak cipta projek. Soal ini selalu dipandang ringan, tetapi ia amat penting dalam sesetengah kes. Hak milik projek boleh mempengaruhi banyak perkara seperti penggunaannya, kos projek, sehingga individu yang berhak menggunakannya. Jika anda dengan pelanggan anda tidak memberi apa-apa spesifikasi, ada undang-undang yang berkuat kuasa secara automatik berkenaan hak milik sesebuah projek. Seksyen 26 Akta Hak Cipta 1987 menyatakan bahawa jika anda seorang pekerja ataupun diupah oleh seseorang, maka majikan atau pelanggan menjadi pemilik projek: “jika sesuatu karya— (a) telah ditempah oleh seseorang yang bukannya majikan pencipta karya itu di bawah suatu kontrak perkhidmatan atau perantisan; atau (b) yang tidak ditempah sedemikian, dibuat dalam masa bekerjanya pencipta karya itu, maka hak cipta itu hendaklah disifatkan sebagai dipindah milik kepada orang yang telah menempah karya itu atau kepada majikan pencipta itu, tertakluk kepada apa-apa perjanjian di antara pihak yang berkenaan yang menolak atau mengehadkan pindah milik tersebut.” – penekanan ditambah oleh ASKLEGAL Ayat terakhir tu bermaksud jika perlu, anda boleh bersetuju dengan pelanggan bahawa anda akan menjadi pemilik projek. Anda kemudiannya boleh melesenkan penggunaan projek tersebut kepada mereka (anda menjual hak menggunakan projek kepada mereka). Dalam masa yang sama, anda boleh menetapkan syarat seperti tujuan projek ini boleh digunakan dengan tempoh penggunaan (contohnya, hanya untuk promosi Krismas tahun ini). Pekara ini sangat bergantung kepada jenis projek dan industri, jadi anda perlu berunding syarat-syarat ini dengan pelanggan anda. Kami juga ingin sarankan di sini bahawa jika anda ingin menggunakan sesebuah projek untuk portfolio anda, anda tidak boleh berbuat demikian sesuka hati jika pelanggan anda memiliki hak ciptanya. Anda perlu menyatakan hasrat ini di dalam kontrak anda dengan pelanggan anda, dengan syarat projek itu akan digunakan untuk portfolio sahaja. Dalam pada itu, jika anda risau yang nama anda tidak digunakan sebagai karyawan projek, bergembiralah kerana anda dilindungi oleh Seksyen 25(2) Akta Hak Cipta secara automatik. [BACAAN LANJUT – Apa itu hak cipta dan bagaimana ia berfungsi?] 3. Klausa pampasan Menyelesaikan: mMmbebaskan anda daripada tanggungjawab (liabiliti) jika berlaku kemalangan dan kejadian yang tidak dapat dielakkan Klausa pampasan (indemnity clause) merupakan satu syarat di dalam kontrak yang mengehadkan tanggungjawab (liabiliti) anda. Dalam kerja freelance, anda mungkin perlu mengehadkan liabiliti anda untuk kejadian yang tidak dapat dijangka. Bayangkanlah jika anda membuat promosi karnival di mana tarikan utamanya adalah pertunjukan gajah. Bila pertunjukan bermula, baru anda sedar yang gajah tu dah hilang (macam mana tu?), dan di luar sana, pemegang tiket sedang menunggu dengan rasa marah dan kecewa. Anda pasti tidak mahu terperangkap dalam situasi sebegini – lagipun ia bukannya salah anda. Mari kita lihat satu contoh kes sebenar yang melibatkan penjenamaan semula (rebranding) Tropicana. Siapa yang tak kenal jus buah oren yang dikenali dengan nama “Tropicana Twister” ini? Pada tahun 2009, Tropicana melaksanakan penjenamaan semula yang bernilai USD35 juta untuk memperbaiki bungkusan produk mereka. Tetapi malangnya ia gagal mendapat sambutan dan mengakibatkan kejatuhan jualan sebanyak 20% (kira-kira USD30 juta). Bayangkanlah jika anda bertanggungjawab atas kegagalan ini. Anda tidaklah akan mengadapi masalah sebesar ini tiap hari, namun kejadian yang tidak dijangka seperti ini merupakan satu sebab klausa pampasan tu adalah penting. Tetapi ingat, anda masih lagi bertanggungjawab ke atas kegagalan akibat kecuaian anda – dikenali sebagai melanggar “tugas penjagaan” (duty of care) dalam undang-undang. Pendek kata, ia merujuk kepada tugas anda untuk mencapai piawaian kerja yang munasabah, dan mengambil langkah untuk mengelakkan masalah. 4. Skop kerja dan garis masa (timeline) Menyelesaikan: Mengelakkan skop kerja lain ditambah masuk tanpa pampasan (scope creep) dan melaraskan jangkaan antara anda dengan pelanggan terhadap jumlah kerja yang boleh dilaksanakan dalam jangka waktu yang ditetapkan Jika anda pernah berdepan dengan pelanggan yang selalu menambah kerja demi kerja dengan alasan “sikit je kan?”, anda sudah semestinya biasa dengan penambahan skop kerja yang meningkat. Anda telah mengenakan bayaran yang telah ditetapkan untuk sesuatu skop kerja, jadi bila kerja yang telah diselesaikan sering dihantar balik untuk tambahan dan pemindaan sepanjang sebulan, anda pastinya rasa tidak sedap hati. Anda mungkin juga mula berasa benci dengan pelanggan pada ketika itu, dan ini mungkin merosotkan hubungan kerja di antara anda berdua. Di sinilah kontrak memainkan peranan penting dengan membantu menyatakan skop kerja yang harus dilakukan sebelum kerja dimulakan: Kita akan buat XYZ dengan harga ini, tetapi jika anda ingin ABC juga, kami gembira membantu tetapi kami akan mengenakan bayaran tambahan. Sesetengah pihak juga mengehadkan jumlah pindaan yang boleh dibuat – kelebihannya di sini ialah anda akan mendapat maklum balas sekali gus, dan permintaan untuk pindaan tidak diterima berulang kali. Anda juga pasti biasa dengan pelanggan yang menetapkan garis masa (timeline) yang tidak munasabah: iklan TV yang lengkap dalam masa tiga hari atau yang sewaktu dengannya. Anda boleh menetapkan garis masa kerja jangkaan di dalam kontrak supaya bersefahaman dengan pelanggan. Bukan sahaja anda mengehadkan masa untuk sesuatu projek, tetapi pelanggan anda mungkin berasa lebih selesa bekerja dengan anda jika anda telus dengan mereka (adalah baik jika anda berikan mereka progress update dari masa ke semasa). 5. Apa yang akan berlaku jika ada penangguhan Menyelesaikan: isu tanggungjawab bila berlaku penangguhan yang tidak dijangka (misalnya jika keutamaan pelanggan berubah). Juga melindungi anda jika pelanggan “hilang” atau MIA. Satu masalah besar yang sering dihadapi freelancer adalah apabila mereka mendapat projek, telah menyiapkannya, dan bila tiba masanya projek tersebut bakal dipersembahkan kepada pelanggan, baru perasan pelanggan tu dah “hilang”. Kadang kala pelanggan cuma ada keutamaan lain yang lebih penting dan mereka hanya boleh menumpukan perhatian kepada projek anda pada masa yang lain, di mana ianya tidak membawa implikasi terlalu teruk, (selain membuang masa anda...) tetapi ada juga situasi di mana mereka gagal menghubungi anda selama beberapa bulan walaupun anda sudah cuba berhubung dengan mereka – dan kemudiannya projek tersebut lenyap dari ingatan. Tapi apa jadi dengan semua kerja yang telah disiapkan...? Lambat laun anda pun sudah menerima hakikat yang anda mungkin tidak akan dibayar. Nasib...nasib... Oleh kerana itu, anda harus membekalkan peruntukan dalam kontrak yang menerangkan apa yang akan berlaku jika berlakunya penangguhan projek. Sebagai contoh, anda mungkin boleh menyatakan jika pelanggan tidak berhubung dengan anda sehingga lebih dari 2 minggu: Anda akan menutup projek dan mencari kerja lain; Bayaran untuk projek perlu dibuat; Anda akan menghantar semua kandungan projek yang telah siap kepada mereka; Pelanggan boleh menghubungi anda untuk meneruskan projek ketika bersedia. Ini menggariskan apa yang akan berlaku jika senario di atas berlaku, dan pelanggan anda telah pun bersetuju dengannya melalui tandatangan dalam kontrak. Jika pelanggan yang tidak jujur memaksa anda meneruskan kerja, kontrak yang telah ditandatangani boleh melindungi anda. Dan jika anda tidak dibayar, anda boleh membuat tuntutan kecil seperti mana kita telah bincangkan sebelum ini. Kontrak tersebut boleh menjadi bukti yang pelanggan berhutang dengan anda jika senario yang paling teruk berlaku dan pelanggan anda jatuh muflis atau hilang untuk apa-apa alasan lain. Jika anda memerlukan kontrak yang sah..... Anda mungkin tidak akan mampu untuk mengupah peguam untuk membuat kontrak terutamanya jika anda hanya membuat kerja-kerja yang kecil, tetapi kepentingan perlindungan anda dari segi undang-undang tidak berubah . Untuk memparafrasakan kenyataan beberapa ahli perniagaan kepada penulis ini: anda tidak perlukan kontrak jika semuanya berjalan lancar, ianya untuk melindungi anda jika sesuatu yang tidak diingini berlaku. Dengan adanya bukti perjanjian anda dengan pelanggan, ia akan membantu anda dalam membuat sebarang tuntutan jika perlu. Walaupun kontrak boleh ditulis dengan bentuk bahasa yang biasa digunakan, ianya perlu ditulis dengan jelas dan tidak mengelirukan. Panduan dari WikiHow ini mungkin akan dapat membantu anda jika anda ingin menulis kontrak dengan sendiri. Namun begitu, ada kebaiknya anda mendapatkan nasihat peguam berkenaan apa-apa kontrak untuk memastikan anda tidak tertinggal apa-apa yang penting di dalamnya. Satu lagi pilihan adalah menggunakan laman seperti And Co., mereka mempunyai semua yang anda perlukan sebagai freelancer dari invois sehinggalah kontrak yang boleh diubah mengikut kehendak anda. Anda juga boleh melawat laman seperti TheContractShop untuk memenuhi keperluan anda sebagai seorang freelancer. Dan sudah semestinya anda mungkin bertanya “Kalau pelanggan tak nak tandatangan, macam mana? Bodohlah artikel ni!!!!”. Jawapan kami? Jangan terima projek itu. Jika pelanggan enggan berunding dan menandatangani kontrak, apa kemungkinan yang mereka ini jujur?"
"How to perform a citizen's arrest in Malaysia NOTE: The staff at Asklegal volunteered to pose for the images shown in this article. We needed a reason to get off our swivel chairs. When we use the term “citizen’s arrest” we hope you don’t think, “Citizen’s arrest? Are you trying to say if I want to arrest someone, I must be a Malaysian?”. Well, although we use the term “citizen’s arrest”, we actually mean ‘private civilian arrest’ where a non-police officer arrests someone for a crime. We are sure you have imagined the heroic moment where you see a pretty lady getting her handbag snatched, and you Usain Bolt towards the thief and catch him. But, in the DC hero-like moment when you apprehend the thief, did you know you may have performed a citizen’s arrest? With a citizen’s arrest you have to make sure you are following the legal procedures properly, if not you may be breaking some laws. So here’s a simplified reference to how a Citizen’s Arrest can be performed according to Section 27 of the Criminal Procedure Code. If you would like to read a more detailed explanation on the laws surrounding citizen’s arrest you can do so here. Step 1: Don’t try to be Batman unless necessary This is less of a step and more of a precautionary measure, because you are not a hunky billionaire who can fight crime with an expensive kevlar suit and a Batmobile. If you are like the writer of this article, you probably have on a discounted H&M t-shirt and takes the LRT to get around. If that’s the case, don’t try to be a hero unless it’s extremely necessary. Trying to arrest a criminal can be dangerous and it can result in you getting hurt and possibly trouble with the law. But, if you really have to make an arrest…. Step 2: Make sure the crime is committed “in your view” You will only have the powers to arrest, if the crime is committed “in your view”. So, if we were to take things literally it would mean that the crime should have been perceived with your senses of sight (ie, you saw the thief trying to take the bag from the woman). However in the Malaysian legal system, it could also mean a crime happened “in your opinion” (ie, you didn’t see the thief taking the bag, but you seem him running away with a bag and a woman shouting “CURI!”). Step 3: Make sure the crime committed is serious What me mean by a serious offence is whether the crime is seizable or unbailable. To demystify these legal jargons, we will go at it one by one. For unbailable offences, it actually means a crime where you can’t get bail. For seizable offences, they are basically crimes where the minimum punishment is at least 3 years. If you want a more fleshed out explanation of seizable offences and examples of such offences, you can check out our article here. In the mean time, for the purposes of this article you can arrest a person if you see him committing a murder or stealing a bag. But, don’t tackle someone to the ground for littering and start shouting “YOU ARE UNDER ARREST!” Step 4: Arrest the person According to Section 15 of the Criminal Procedure Code, this is how you should perform an arrest: You should hold or restrict the body of the person you’re arresting (tie them up if you need to) If the person resists arrest, you can use all means necessary to restrain them If you don’t have handcuffs, you can actually get some rope to tie him up. However, this doesn’t mean you can simply practice your karate moves on him unnecessarily. You can only use those moves in self-defence, if he tries to fight you or hurt others. But even that you have do it proportionately – ie, you probably can’t kill him or put him in a coma. The force you use must be proportionate to the threat he poses. [READ MORE: Why do some Malaysians get arrested for killing robbers in self defense?] Step 5: Bring the criminal to the police station or police officer After you pat yourself on the back for succeeding in a realistic game of “police and thief”, you obviously have to do something because you can’t keep the thief to yourself. According to the law, you have to hand him over to a policeman or a police station. We understand, that the thief might be reluctant to tag along with you while you actively search for a policeman or head over to a police station. Fret not, because all you need to do is call the police and tell them what happened –they will come to you and re-arrest him."
"Apa anda boleh buat jika ada yang meletak kenderaan mereka di hadapan rumah anda? Hari dah lewat, ­­anda sedang mengemudi kereta anda pulang ke rumah dari kerja, dan jam ketika itu menunjukkan pukul dua belas tengah malam. Sedang anda memandu masuk ke kawasan perumahan anda dengan berhati-hati, anda menyumpah kerana banyak kereta di kiri dan kanan anda yang diletak secara berbahaya di tepi jalan. Anda terfikir, kenapalah mereka tak letak kereta di perkarangan rumah mereka, kan banyak tempat. Kenapa perlu menyusahkan orang lain? Akhirnya anda hampir sampai ke rumah anda tetapi anda tersentak seketika. Rupa-rupanya ada sebuah kereta yang diletak betul-betul di hadapan pagar masuk rumah anda! Anda menghampiri kereta tersebut. Tiada pemandu di dalam dan tiada nombor telefon ditinggalkan. Rasa marah menyelubungi anda. Kini anda terpaksa mencari tempat letak kereta yang lain dan tambahan pula, anda kena membuka pintu pagar anda dengan berhati-hati supaya kereta yang diletak di hadapan pagar masuk anda tidak mengalami apa-apa kerosakan. Anda melepaskan satu jeritan yang cukup kuat, kesian anjing-anjing jiran terbangun dari tidur nyenyak mereka. Kemudian anda bersumpah untuk mencari satu jalan penyelesaian bagi masalah tempat letak kereta ini. Jika anda pernah berada dalam situasi sebegini ataupun jika anda tidak dapat memandu masuk ke jalan yang dihalang kenderaan lain, anda pastinya terfikir apa yang boleh anda lakukan (penyelesaian yang sah di sisi undang-undang ya!)? Yang pertama, adakah meletak kereta sebegitu salah di sisi undang-undang? Sudah pasti ianya salah! Kita akan merujuk kepada Akta Pengangkutan Jalan 1987 (“APJ 1987”) untuk topik ini. Di bawah Seksyen 48(1) APJ 1987, mana-mana pemandu yang meletakkan kenderaan mereka dengan cara yang menyusahkan orang lain atau yang menghalang pengguna lain melakukan satu kesalahan dan boleh dihukum denda sekurang-kurangnya RM1,000 dan/atau penjara sekurang-kurangnya satu tahun. Seksyen 48(1) APJ 1987: “Jika mana-mana pemandu sesuatu kenderaan motor menyebabkan atau membenarkan kenderaan motor itu dihentikan di mana-mana jalan dalam apa-apa kedudukan atau apa-apa keadaan atau apa-apa hal keadaan yang mungkin menyebabkan bahaya, galangan atau kesusahan tidak berpatutan kepada pengguna jalan yang lain atau kepada lalu lintas, dia melakukan suatu kesalahan dan apabila disabitkan boleh didenda tidak kurang daripada satu ribu ringgit dan tidak lebih daripada lima ribu ringgit atau dipenjarakan selama tempoh tidak kurang daripada satu tahun atau kedua-duanya.” Jadi jika anda terperangkap dalam situasi di mana kereta diletak bersepah di persekitaran rumah anda atau anda pernah berada dalam situasi di mana pagar masuk rumah anda dihalang oleh kereta lain, jangan risau kerana dalam situasi ini, andalah pemenang di sini. [BACAAN LANJUT: Salah siapa kalau saya langgar kereta yang ‘double park’?] Persoalannya, bagaimana anda boleh mengalih kenderaan tersebut? Pihak berkuasa sebenarnya boleh menunda kereta tersebut Seksyen 48(2) APJ 1987 membenarkan pegawai polis atau pegawai pengangkutan jalan (rasa-rasanya masa ini lah pihak JPJ akan campur tangan) ataupun mana-mana pegawai majlis perbandaran untuk mengapit (“clamp”) kenderaan yang menghalang lalu lintas ataupun menundanya (“tow”) ke kawasan lain. Seksyen 48(2) menyatakan bahawa: “...boleh mengapit roda kenderaan motor itu atau mengalihkan atau menyebabkan supaya dialih kenderaan motor itu ke mana-mana jalan lain atau mana-mana lokasi atau tempat lain sebagaimana yang dinyatakan dalam suatu notis dan ditinggalkan di situ atas risiko pemunya.” Ini bermakna ada jalan bagi anda menyelesaikan masalah anda dengan menghubungi pihak polis/JPJ/majlis perbandaran supaya mereka boleh datang dan mengalih kenderaan yang diletak secara haram. Pepper Lim, seorang penulis log sesawang (blog writer) di sini pernah menghadapi situasi di mana jirannya meletak kereta di hadapan pintu pagar masuk rumah Pepper setiap hari untuk sepuluh bulan Pepper membuat aduan dengan MBPJ dan mereka kemudiannya menghantar seorang pegawai untuk memberi saman kepada pemandu kereta tersebut. Bagus kan? Kerana siapalah yang nak letak kereta merata-rata kalau kena bayar saman kan? Tetapi bukan untuk pemandu kereta di atas. Dia meneruskan perbuatannya sehingga saman yang terkumpul di atas namanya meningkat sehingga ke RM1,000. Pegawai di MBPJ kemudiannya menasihatkan Pepper untuk membuat laporan polis. Walaupun polis tidak menunda kereta pemandu tersebut, namun satu sesi lawatan polis adalah cukup untuk memberhentikan tabiat buruk pemandu terlibat. Tetapi kita faham yang ada di antara kita tidak mahu menghubungi pihak polis untuk menyelesaikan masalah ini kerana ianya menyusahkan dan bakal juga mewujudkan ketegangan di antara anda dan jiran anda. Oleh itu ada beberapa cadangan yang boleh anda ambil sebelum memanggil polis. Cuba berbincang dan berunding dengan pemilik kenderaan tersebut. Jika dia enggan berunding, anda boleh menghubungi pihak majlis perbandaran untuk mempertimbangkan hal ini. Jika kesemua di atas gagal, maka anda boleh membuat laporan polis terhadap pemandu tersebut berdasarkan seksyen 48 APJ 1987. Mungkin ada di antara kita yang teringin sangat untuk mengambil langkah yang lebih agresif seperti mencalar atau memecahkan tingkap keretanya. Tetapi kita harus ingat yang tindakan ini salah di sisi undang-undang dan kita langsung tidak mengesyorkan tindakan sebegini, sebaliknya adalah lebih baik jika anda mengambil langkah yang lebih wajar. Tetapi apa yang boleh anda buat jika kereta terbabit diletakkan di dalam perkarangan rumah anda, jauh dari jalan raya awam? Anda masih boleh membuat laporan polis Sesiapa yang meletakkan kenderaan mereka di perkarangan rumah anda dengan sengaja mungkin akan didakwa di bawah Akta Kesalahan Kecil 1955 (“AKK 1955”) atau Kanun Keseksaan di atas sebab melanggar masuk (“trespass”). Anda masih boleh membuat laporan polis kerana ia melibatkan harta persendirian anda tetapi ia bergantung kepada pihak polis (dan tahap tindakan melanggar masuk tersebut) jika tindakan diambil ataupun tidak. Di bawah AKK 1955, jika sesiapa memasuki perkarangan rumah dengan sengaja tanpa alasan yang munasabah, mereka akan disabitkan bersalah di bawah Seksyen 22 dan boleh didenda sehingga RM50. Seksyen 22 AKK 1955 (tiada terjemahan asal): “Barangsiapa, tanpa alasan yang munasabah, melanggar masuk dengan sengaja ke dalam perkarangan rumah atau premis, ataupun sebarang hartanah, atau sebarang bot atau kapal....dan tidak dengan itu dalam kesemuanya di atas mengakibatkan sebarang kerosakan, ataupun tidak, dalam pendapat Majistret, mengakibatkan kerosakan yang lebih dari nominal, akan tertakluk kepada denda tidak lebih dari lima puluh ringgit.” Kami faham bahawa denda lima puluh ringgit ini bukannya besar terutamanya pada zaman ini tetapi kuasa laporan polis (dan bila munculnya kelibat abam polis) sudah cukup untuk menakutkan si peletak kereta yang paling degil. Kesimpulannya, semua yang dinyatakan di atas bermakna.... Anda tidak perlu membuat apa-apa yang salah di sisi undang-undang Kami tahu yang anda semua di sana suka bergurau bila tiba masa bercakap mengenai mencalar atau memecahkan tingkap kenderaan yang diletak dengan tidak betul. Namun jangan sekali-kali melakukannya kerana ianya salah di sisi undang-undang walaupun ianya sangat memuaskan. Lagipun, kenapalah anda perlu berbuat begitu jika masalah ini dapat diselesaikan dengan menghubungi pihak berkuasa?"
"Malaysian law doesn't protect wives from getting raped by their husbands...here's why Many people think of rape as being just one thing but, legally speaking, there are many facets of rape and how it is defined. As of late, Malaysia has been amping up its game with regards to enhancing the laws on sexual offences against children and similarly, talks are now underway to reconsider Malaysia’s position on underage marriage. We’ve covered articles on both issues and you can read about it here and here. However, laws regarding marital rape is one of the trickier issues as it has been debated for awhile without a way to come to a proper resolution. On the surface of the argument alone, the two major problems with is that: Malaysia’s laws do not criminalise marital rape. This means that it’s not rape if a husband has non-consensual sex with his wife. The law only recognises men as the perpetrators and women as the victims; not the other way around As you can see, marital rape is a pretty convoluted issue so for today’s article, we’re only going to discuss number (1) because number (2) is wayyyy beyond the reach of this article. Marital rape has long arms in history but, to kick things off, let’s look at the definition of rape in Malaysia. The crux of rape is “lack of consent” Rape is, generally speaking, defined as a type of sexual assault that involves sexual penetration without the consent of the other. While there are variations of what is rape depending on the country’s definition, the crux of it lies in the lack of consent. Yes, we said ‘lack of consent’ three times because it is that important and it is the crux of it. In Malaysia, the definition of rape can be found in section 375 of the Penal Code (in part): “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions...” The descriptions are pretty long and not in today’s discussion but to give some examples, a man is said to commit rape when he has sexual intercourse with a woman against her will, without her consent, putting her in fear, etc. It also covers statutory rape (sex with someone 16 years and below; read more here). But if you read through the entire list in section 375, you may have noticed that it only references “man” and “woman”, which you think would include “husband” and “wife”. However, it doesn’t because of the exception to section 375: “Exception—Sexual intercourse by a man with his own wife by a marriage which is valid under any written law for the time being in force, or is recognized in Malaysia as valid, is not rape.” The exception to this exception is if the wife is living separately and has commenced divorce proceedings – for example, if a wife has obtained an injunction restraining sexual intercourse, or a Muslim woman living separately from her husband during the period of iddah. This means that, long story short, marital rape is not a concept that exists in Malaysian law. However, this concept is not purely Malaysian and actually has deep roots in how women have been viewed over time. Historically, wives were considered their husbands’ ‘property’ Before you get up in arms about this, do note that this piece of history is merely to provide a background as to how the law came into place. This archaic notion is best summed up by a famous 18th century jurist, Sir Matthew Hale in his book The History of the Pleas of the Crown, where he said: “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” – Sir Matthew Hale, The History of the Pleas of the Crown (1736) [emphasis added] In millennial English, this means that Sir Matthew said that husbands cannot be guilty of rape against their wives because by entering into a marriage, the wife has given her consent to her husband and this consent cannot be taken back. TLDR; marital rape was not a concept that existed because marriage was taken to mean lifelong consent for sex. Widely speaking, this was the basis for not criminalising marital rape. It is very important to note that what Sir Matthew Hale said was indicative of the time he was living in; where women were viewed as their husband’s property upon marriage and it’s not unchangeable. The law has since progressed from viewing women as mere property and on the most part, both men and women are equal in the eyes of the law. The UK has similarly criminalised marital rape in the groundbreaking case of R v R in 1991 when the judge said: “The common law is, however, capable of evolving in the light of changing social, economic and cultural developments. Hale's proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail...marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale's proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable."" – Lord Keith, R v R (1991) [emphasis added] Basically, what Lord Keith said is this – while Sir Matthew’s words were indicative and right of the time he was living in, the common law can always evolve according to changes in society. Therefore, with all the changes that UK has undergone, women are no longer viewed as property and marriage is now understood to be a partnership between equals. The next question is… Where does Malaysia stand in this? The Malaysian government has engaged in many discussions through several committees that were set up specifically to review laws on marital rape. Despite this, marital rape has not been criminalised for (in summary) 3 reasons: Cultural considerations Religious considerations Language barrier However, wives who are physically hurt or threatened by their husbands can still seek help from the authorities because of section 375A which reads: “Any man who during the subsistence of a valid marriage causes hurt or fear of death or hurt to his wife or any other person in order to have sexual intercourse with his wife shall be punished with imprisonment for a term which may extend to five years.” [emphasis added] This means that while raping your wife is not a crime, hurting her/another person with the purpose of making her have sex with you is. Aside from section 375A, protection is also given through the Domestic Violence Act 1994 (read more here). For further information or help, you can contact the following numbers: AWAM: 03 7877 0224 | telenita@awam.org.my Women’s Aid Organisation: 03 7956 3488 | 018 988 8058 | womensaidorg@gmail.com"
"7 things Malaysians forget to do after they get into a traffic accident Traffic accidents are no fun, paying for repairs and medical bills can just as painful as any injuries you may get. Regardless, accidents happen. You’ve heard general tips and tricks all around you, maybe even gotten into a few accidents yourself…but you might not know that some of those tips actually get you into more legal trouble instead of preventing them. So, what ARE you supposed to do when an accident happens? 1. Always check yourself for injuries Assuming you’re still conscious, the very first thing to do after impact in a traffic accident is to check yourself for any injuries. Objects in your car and fragments of metal, glass, and plastic could have been flying around, and you may not even realize that you’re bleeding. If any foreign objects are stuck in your body, do not try to remove them without medical attention as it could hurt yourself more and make you bleed out faster. Call for an ambulance if you need to, and do what you can to give yourself some first aid. It helps a lot to keep a well-stocked first aid kit in the car for these emergencies. 2. Check your surroundings before exiting your car If you were lucky enough to come out uninjured, the last thing you want is to come out of your vehicle and get beaten up by the other driver, or even an angry mob out to get “revenge”. As much as we detest these incidents, they have been known to happen where some members of the public make assumptions about what happened and then get aggressive, going after even innocent bystanders. Always be aware of your surroundings before exiting your vehicle. If you are in immediate danger from other drivers involved in the accident, or an angry mob, you are allowed by the law of self-defence to escape to the nearest police station to make a report. [READ MORE - If I get into a car accident, can I go to the nearest Balai Polis instead of stopping? 3. Take pictures of the damage to all cars, and injuries Before anything else, make sure everyone is okay and call for an ambulance if anyone is hurt. Contrary to popular belief, you actually want to come out and take pictures of the accident scene BEFORE you move your vehicles to the side of the road. That is of course, unless it’s dangerous to do so and you don’t have a choice. Other than substantiating the damages and injuries to claim for compensation, you may need the photographic evidence to prove who was at fault. Moving the vehicles affects the evidence of the accident, and could mean the difference between proving it was another driver’s fault, and getting the blame pinned on you. For example, if a driver caused the accident because he suddenly coasted between traffic lanes, it might be important to snap a picture of the the way the accident happened, which would prove that the driver was careless. Without the proof, anyone could just as easily be blamed and you’d have a “he said, she said” deadlock on your hands. You should take pictures of all damage sustained by EACH vehicle involved in the accident (make sure the registration number of each vehicle is clearly visible), as well as any injuries the people involved have. Be sure to note the time and location of the accident. That being said, having a dashboard camera can go a long way in helping to document the events leading up to the crash, especially in if you’re caught in a hit-and-run situation (such as by recording the license plate number). Note: If the accident is serious (eg. both cars are totaled), call the police and wait for them to arrive. 4. Keep your hazard lights on when moving your vehicles to the side of the road If they’re still functional (and assuming no one is trapped in a car), you may want to consider moving your vehicles over to the left-most lane (or the emergency lane) of the road so you won’t hold up traffic. You’ll want to move slowly and keep your hazard lights on as a warning to approaching traffic - the last thing you want now is another collision. If you couldn’t (or didn’t) take pictures of the damage before moving the vehicles involved, now is the time to do so. 5. Get the details of the other driver(s) and any witnesses After getting your vehicles out of the way, meet with the other drivers involved in the accident to exchange details. You’ll want to record the following: Vehicle registration number Vehicle model, colour, and model year Driver’s Name, Address, and Phone Number Vehicle Owner’s Name, Address, and Phone Number (if different from the driver) Driver’s IC number and Driving Licence number. Technically, you are not obliged to hand over your NRIC or driver’s license (only certain government officers can demand them), but you are still required to exchange information according to Section 52(1) of the Road Transport Act 1987, and exchanging identification cards is the simplest way to verify your identities. What you can do is simply take a picture of the other driver’s ID, or jot don their details – but you are not allowed to keep their IC or driver’s license (and vice versa). If you can, approach some witnesses and ask for their contact information as well. It might just help you prove your case. [READ MORE - Are security guards allowed to take your IC or license for safekeeping?] 6. Never admit fault until the insurance claims are settled This doesn’t mean that you come out of your vehicle being rude and start bullying the other driver. What this means is that you should not say anything claiming or denying responsibility…mostly for insurance reasons. There are 3 big reasons for this: You could be only partiality at fault. The law has certain rules for determining responsibility, and there’s something called contributory negligence, which basically means that you and the other driver(s) share the blame for the accident in a certain proportion. You could also be not at fault at all! For example – a lot of people mistakenly believe that hitting a vehicle from behind means it’s automatically your fault - it’s not always true. It makes life difficult for your insurance company when making claims later, especially if you weren’t really at fault in reality. Claiming it’s your fault is like an admission of guilt, and it becomes easy to push the blame to you without actually finding the truth. [READ MORE - If you hit a car from behind in Malaysia, is it automatically your fault?] [READ MORE – If a car hits a motorcycle in Malaysia, is it automatically the car's fault?] 7. Always make a police report within 24 hours You’re probably asking at this point: can we settle the accident privately instead? Technically speaking, there’s no law that says you can’t – but you take certain risks by doing so, because you are required by Section 52(2) to report all accidents to the police: “In the case of any such accident as aforesaid the driver of such motor vehicle…...shall report the accident at the nearest police station as soon as reasonably practicable and in any case within twenty-four hours of such occurrence…” - emphasis added. It’s actually not advisable to privately settle accidents, because the other party can still back out of the deal and make an insurance claim against you - and you’ll have no proof to defend yourself. What’s more, they can still make a police report against you too… You could consider settling and avoiding all the hassle if the damage is limited to only a few scratches, but generally speaking, you should still make a police report (even if you’re not claiming insurance) to protect yourself from surprise third party claims who may twist the story against you. [READ MORE – If you're hit by a driver with no insurance, this Malaysian agency can help... for FREE] To make the report, you’ll want to head over to the nearest police station with a traffic police division to make your report. It’s usually the district’s HQ, but you may have to find out which one it is for your area. By the way, if you have a valid reason for not making a report within 24 hours (like being injured in the hospital), the police will still accept your report. [READ MORE – Can you still report an accident to the PDRM after 24 hours have passed?] And never fall for “kind” tow trucks offering to help There are sometimes two trucks that will stop and offer help to you out of nowhere after an accident. Never ever let them tow your car (they might also try to get you to sign some documents - never sign anything) as they are known to later extort money from you in the form of “towing fees”, “release fees”, “drop-off fees”, all while taking your car hostage to get you to pay. SAYS has a well-documented account of one such incident over here. Have any more questions or heard of more tips that we didn’t cover here? Let us know in the comments below, or on our Facebook page and we’ll see what we can do."
"Asked to pay for PIDM protection? That's a scam! So you’re in your office one day and you get a call from a private number. You’re kinda prepared for a scam because of all the coverage you’ve been reading about the PDRM or Macau scams, but you pick up anyway; knowing fully well that they can’t scam you ‘cause you #woke. As the line connects, the person on the other end identifies themselves as a PIDM officer. You’re suddenly shook, so you ask: “Wait, don’t you mean PDRM?” “No, PIDM” You may vaguely recall hearing their name on the radio or seeing their logo in your bank, something about insurance. One thing leads to another, and you agree to sign up for PIDM protection. Congratulations, you’ve just been scammed. Yup, with the general public getting wise to their tactics, scammers have now moved on to impersonating the PIDM, or Perbadanan Insurans Deposit Malaysia. Before we head into how these scams work though, let’s take a look at what the PIDM actually does. PIDM works to protect you Chances are, you would have heard PIDM’s ad on the radios recently (you can check out all their advertisements here if you haven’t) so you would have a working idea of what PIDM is but let’s break it down in detail for you guys. The easiest way to think of PIDM is as an insurance for your bank deposit and insurance benefits. But wait, does that mean that PIDM is an insurance company? Nope. PIDM is a government agency that administers two protection systems: the Deposit Insurance System (“DIS”) and the Takaful and Insurance Benefits Protection System (“TIPS”). The DIS protects the deposits you place in PIDM member bank against any loss in the event of the bank’s failure (such as bankruptcy) for up to RM250,000 per depositor per member bank. If you would like to read more about how your deposits are protected, click here. On the other hand, TIPS protects you, as an insurance policy holder or a takaful certificate holder, from the loss of your benefits in the event that your insurer is unable to honour your policy. For example, if your insurer goes bankrupt and is unable to pay your medical bills, PIDM will step in. Depending on your takaful certificate or insurance policy, PIDM protects your eligible takaful or insurance benefits up to RM500,000 or more. For more information on the various coverages, click here. This protection from PIDM is also automatic, meaning that you don’t even need to sign up for it. It takes effect the moment your bank account, takaful certificate, or insurance policy is activated. Sure or not? Nothing good ever comes free, right? If PIDM functions like an insurer, won’t I need to pay premiums to them? Well, you would be happy to know that... PIDM never takes money from the public Protip: If someone asks you to pay for PIDM protection then it’s a scam for sure. Scams involving PIDM can take on one of four forms: You are asked to pay a fee for PIDM protection PIDM’s protection is always free and automatic for the public. As a matter of fact, PIDM’s member institutions (banks, takaful operators and insurance providers) are the ones required to pay PIDM annual levies and premiums which go into funds that would be used to reimburse your deposits, takaful and insurance benefits if they go bankrupt. For the full list of PIDM’s members, click here for member banks and here for insurer members. Money lenders asking you to pay for PIDM protection before they give you your loan The key thing here is: PIDM does not cover loans. And again, if you hear the word ‘payment’, you know that this is one thing you cannot trust. Your bank account has been hacked, and you need to transfer your money to keep it safe while PIDM reimburses you for your loss There is an actual account of this scam and you can read more about it here. PIDM will only reimburse you in the event of the failure of your bank or insurer. This means that your protection from PIDM only kicks in when your bank or insurer fails and closes down after it becomes bankrupt. They do not protect you against scams. Foreigners are shown a false certificate The certificate (like the one shown above) claims to be issued by the Malaysia Deposit Insurance Corporation (which is what the PIDM is known as internationally). To reinforce the above points, we spoke to PIDM and they told us this: “The protection is automatic and free – no sign-ups or fees required. We will also not ask for your personal and/or financial details.” – PIDM, in email reply to ASKLEGAL In addition to your protection being automatic, another important thing to note is that if you ever qualify for a reimbursement, this is also automatic. You don’t need to make a claim because PIDM will announce how and when the reimbursement would be made. TLDR; if you ever get a call from the PIDM, it’s probably a scam. Which means that if “PIDM” calls... You call the real PIDM instead The moment you get a call from “PIDM”, tell them that you will contact them back via the official channels which are: Hotline – 1800 88 1266 Email – info@pidm.gov.my IMPORTANT NOTE – DO NOT USE WHATEVER CONTACT DETAILS THAT THE CALLER GIVES TO YOU. If the actual PIDM confirms that you have been a target of a scam, proceed to lodge a report with Bank Negara as well as the police. All in all, always remember the important steps when dealing with a potential scammer: Never divulge personal and/or financial details when not dealing in person Never accept their offer to transfer a call to another institution such as the police Never rely on numbers given by the caller; do your own research Always take control of the conversation by asking for their details and requesting to meet in person Don’t be intimidated – remember if they are really there to help you, they wouldn’t be pressing you to make hasty decisions or preventing you from communicating with family, friends, or the police Try to keep your cool – remember that it’s always okay to ask for a few moments to compose yourself If you have been a victim of a scam involving the PIDM, do contact them at the given numbers and lodge a report to safeguard your own details."
"Are you allowed to charge interest for loans to friends and family in Malaysia? Everyone has their difficult times with money. It can be embarrassing, and you don’t really want to trouble your friends or family, but when trouble strikes, they are the closest people to you, which makes them the first ones you turn to in times of need. So… you might go to them to take out a friendly loan. [READ MORE - Can I sue someone who promised to marry me (but doesn't) in Malaysia?] But on the flipside, when you’re the one lending the money to family and friends… you do a double take, and you’ll probably doubt your decision for a long time - because while you want to help someone dear to you, and you trust them…you don’t want to risk losing that money forever, or worse, ruin the relationship if they can’t pay you back. One (controversial) way to encourage repayment is by charging interest. Depending on how you see it, charging interest may not make you look like a nice person, but it can protect you if you couldn’t really afford to part with your money, but you still wanted to help your family or friend out. You might even consider only charging interest IF they pay late. But, that’s assuming you’re allowed to charge interest in the first place. Do you need a moneylender license to charge interest on loans? In everyday life, you usually only see interest being charged by: Banks (or licensed moneylenders), Businesses for late payments, and… Loan sharks, aka Ah Longs. [READ MORE - 5 ways legal moneylenders in Malaysia are different from Ah Longs] You’re not a bank, and you’re not a licensed moneylender either - so would that make you an Ah Long…? At first glance, there are no written laws specifically stating you can’t charge interest on a friendly loan, but the Moneylenders Act 1951 defines “moneylending” as: “...the lending of money at interest, with or without security, by a moneylender to a borrower;” Before 2011, the law was different and it was in fact illegal to charge interest on loans without a moneylender’s license - but no longer. The law used to define a “moneylender” as: “...any person who lends a sum of money to a borrower in consideration of a larger sum being repaid to him.” So if say, you’re genuinely helping a friend out, and you charge them 3% annual interest to cover the cost of the money (losing out on fixed deposit returns, for example), you would have been considered an unlicensed moneylender! But this position in law is no more. Since 2011, the Moneylenders Act has been amended, and a new definition came into effect, which reads: “...any person who carries on or advertises or announces himself or holds himself out in any way as carrying on the business of moneylending, whether or not he carries on any other business;” In this new scenario, you would need to actually be operating a moneylending business to fall under this law (like Ah Longs), otherwise, you’re not subject to the requirements of the Moneylenders Act. One thing you need to note is that, because of Section 10OA of the Moneylenders Act, if you charge interest on any loans, you need to make sure you can prove that you are not carrying out a moneylending business - otherwise, you could be slapped with an offence under Section 5 which carries a fine up between RM250,000 to RM1,000,000 and/or up to 5 years in jail (you also get whipped for repeat offences - sounds fun eh?). But a Malaysian case also says friends should not charge interest… We actually have a Court of Appeal case reported in 2007 (Tan Aik Teck v Tang Soon Chye) where a judge decided on what a “friendly loan” in Malaysia means: “A friendly loan is a loan between two persons based on trust. They may be an agreement such as an I.O.U. or security pledged to repayment but most important there will be no interest imposed.” - emphasis added So that means that you can’t charge interest, right? Er, not exactly, because in 2016 a High Court case (Menta Construction Sdn Bhd v SPM Property & Management Sdn Bhd & Anor) decided that generally speaking, you shouldn’t charge interest on a friendly loan, but you still can if you want - although you’ll hold the burden of proving you’re not trying to profit from the loan like a moneylending business would. If your case ever gets brought to court, the court will reserve the discretion to reduce or strike out the interest if they decide that it is exorbitant or unjust (you can still get your principal sum back as long as you can prove that the other guy owes you money). It’s worth keeping in mind that the High Court for the 2016 case is lower in rank than the Court of Appeal that decided upon the 2007 case, so this position in law may not be settled, and may change in future. Therefore… you should make your own decision as to whether you really want to charge a close friend or family member interest on a loan. You might want to support their personal needs or a business, you could also make it a formal loan between two people who happen to be close, or it could even be an investment you make for which you expect a return. Whichever arrangement you prefer, you should make it clear from the beginning in an agreement between the both of you. Not charging interest at first and then later wanting a profit share or interest payment if they become successful is great step...for spoiling your relationship forever. There are safeguards you can take when making friendly loans Some experienced friends of this writer have a different way of supporting their close ones in need: by offering to pay for daily expenses instead of giving an outright loan. But if you’re not comfortable with that type of arrangement (it might be bigger commitment than a loan), conventional wisdom says to never lend big sums of money to friends and family - because you should value the relationship more than the money. If you are going to loan money at all, the safe thing to do is to only lend what you can afford to never see again. Even then, always document the friendly loan to make sure you can legally enforce the loan and recover your money later on (just in case). If you’ve made friendly loans to people in the past, you could still enforce the loan because any form of documentation, including emails and text messages can be enough to prove that the other person does in fact owe you money - you don’t always need a formal document. If you do have someone who owes you less than RM5,000 and has been ignoring your calls, you can actually get them to pay up through a small claim procedure. We have a guide on how to do this at the link below. [READ MORE - How to get money back from your friends in Malaysia]"
"Is it illegal to give someone a house because ""you love them"" in Malaysia? Imagine you are a struggling millennial who doesn’t buy avocados but can’t seem to afford houses anyway. As you’re moping around your parents’ house one day, your mum waves you over and says this magic sentence, “Mummy is going to give you my house for free because I love you so much.” The screaming starts in your mind as your brain goes into overdrive, “FREEEEE HOUSEEEEEEE” followed by images of the bags of avocados that you can now buy. But wait a minute. Your law student friend once told you that to enforce a contract, you must give something in return...does this mean that you actually have to pay your mama market price? What happens if (god forbid), mama falls into a coma before the contract is formalised and signed – Does that mean yo’ mama’s declaration of love can no longer get you that free house, and you’ll have to wait till she wakes up? If you want to read the technical aspects of the law, skip to the last point but for now... Natural love and affection can count in certain cases General rules in law always comes with exceptions because nothing is absolute (other than this contradicting statement) and the exceptions are found in section 26: “An agreement made without consideration is void, unless— it is in writing and registered (a) it is expressed in writing and registered under the law (if any) for the time being in force for the registration of such documents, and is made on account of natural love and affection between parties standing in a near relation to each other; or is a promise to compensate for something done (b) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or or is a promise to pay a debt barred by limitation law (c) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.” We know that that quote is pretty daunting but let’s break it up into the three exceptions: Natural love and affection The first exception applies when the contract is made because both parties have natural love and affection for each other and the contract is made in writing and registered according to the law. You would commonly see this reason being cited in contracts regarding the transfer of land between family members. This is because while contracts can be verbal, contracts regarding land must be made in writing. This part answers the two questions that were posed in our introduction, yes, love and affection can be sufficient consideration but you must get it in writing and register it. In the land transfer form as shown above, this would usually be written as “pemberian kasih sayang”. We would be covering how land is transferred in Malaysia in a separate article so stay tuned for that. A promise for something already done If the promise is one made to compensate someone for something they have already done (also commonly known as past consideration). The easiest example for this can be found in this really old English case of Lampleigh v Braithwaite back in 1615. In this case, the Braithwaite was sentenced to death for murder. He then asked Lampleigh to help him obtain a pardon from the king. Lampleigh managed to get this pardon and the Braithwaite gratefully said that he would give him £100 for his efforts... but never paid up. So, Lampleigh sued. Bratwurst Braithwaite tried to argue that technically, since Lampleigh obtained the pardon last time, his promise to pay was without consideration so the contract is void. Sneaky, amirite? However, even back in the 17th century, judges were sneakier. They decided that since Braithwaite asked for Lampleigh to get the pardon, this counted as a consideration, albeit past. Guess what? Malaysia is all for past considerations too, so they are valid in our country as well. Paying a debt barred by limitation To kick things off, limitation in law means the period of time in which you can bring your claim. For example, if you want to sue someone for breaching a contract, you must bring the action within 6 years. A failure to bring the action within the time limit means that you would lose that right. However, when you promise, in writing, to pay a debt that can no longer be enforced in law because the time limit has passed, this contract is valid. To cut the kerfuffle out, it means that if you give a written promise to pay someone and you fail to do it, you can be sued on that promise even though in usual circumstances, the time for bringing the action has already passed. At the end of the day, this basically means that… Love is valid but only in very limited situations We are sorry to burst your bubble but love does not conquer all. The best note to end this article on is to always ensure that your contracts are properly drawn up with all the right requirements in place. It is also important to understand that there is no one contract for everyone; each scenario has its own quirks and differences that make it very risky to use a standard contract. In other words, always consult a qualified lawyer or – at the very least – be good friends with one. If you are still reading, let’s dive into the technical aspects of the law. The technical part To understand the technicalities of the law, let’s take a look at the basics of contract. Long time readers of AskLegal would understand that a contract isn’t only effective when it is in written form. As a matter of fact, anything can be a contract as long as it fulfills four requirements: There must be an intention to create legal relations There must be an offer There must be acceptance of the offer There must be consideration These requirements come from the common law but are codified in various sections in our Contracts Act 1950 (“CA 1950”). For the purposes of today’s article, let’s zoom into something called ‘consideration’. Consideration in law does not mean to act in a considerate manner or be considerate, like opening doors for old ladies. The simplest non-legalese way we could explain it is in this manner – ’Consideration’ (in law) is what you give in return. The legal definition of it is found in s. 2(d) CA and it basically says: “when, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise” Basically, for a contract to be valid, there must be give and take and a contract without consideration is void. However, while the law holds that a contract without consideration is a void contract (which means that it cannot be enforced in law), the courts will not look at the adequacy of the consideration. This is reflected in a first year law student’s mantra, “Consideration must be sufficient but need not be adequate”. It basically means that the courts won’t determine if the consideration is actually the actual value of the contract. To further compound the understanding for this, let’s look at some scenarios: Ali tells Ah Chong that he will give him his car for free. Ali and Ah Chong sign a contract. Ali then changes his mind. Ah Chong cannot sue Ali because there is no consideration. Ali tells Ah Chong that he will sell him his brand new BMW for RM5000. The BMW is actually worth RM300,000. Ali and Ah Chong sign a contract. Ali then changes his mind. Ah Chong can sue Ali because while the consideration is not adequate, it is sufficient. This is because although the price paid is way below market value, consideration (money for car) was still exchanged between parties. However, there will be situations where a grossly inadequate consideration will raise alarms for the judges because it quite possibly points at some form of fraud or malicious doing by one of the parties but that is an issue for another article. It’s pretty hard to give a definite example of what amounts to grossly inadequate as it varies from situation to situation but if we had to hazard a guess, a contract stating that you are buying Mr. A’s house for 2 large McDonalds’ meals may fall into that category. With this, you guys would understand that the consideration forms a cornerstone of contracts and allows it to be enforceable in law and love is the smallest exception to the widest general rule."
"Ini sebab kerajaan Malaysia tidak boleh mengubah undang-undang perkahwinan bawah umur This article was translated from English and you can read the English version here. Isu perkahwinan bawah umur sedang hangat dibicarakan oleh rakyat Malaysia sejak ianya menjadi perhatian umum apabila laporan mengenai seorang warga Malaysia yang berkahwin dengan seorang kanak-kanak warga Thai berumur 11 tahun di Selatan Thailand tersebar luas. Ini disusuli pula dengan berita mengenai perkahwinan yang melibatkan seorang kanak-kanak berumur 15 tahun di Kelantan. Golongan ‘netizen’ pula menunjukkan rasa tidak puas hati apabila TPM Wan Azizah mengatakan bahawa kerajaan persekutuan tidak memiliki sebarang kuasa untuk campur tangan dalam hal perkahwinan bawah umur, di mana kenyataannya dipetik seperti mana di bawah: ""Mereka telah berkahwin dengan izin Mahkamah Syariah, jadi kita perlu mematuhinya kerana ia mengikut peraturan negeri,"" TPM Wan Azizah, dipetik dan diterjemah dari The Malay Mail, 18 September 2018 Mungkin anda kini berasa berang dan merasakan bahawa semua ini tidak masuk akal kerana maklumlah, mereka kan kerajaan, mereka boleh buat perubahan, mereka boleh menggubal undang-undang. Sabar sejenak ya, kerana banyak lagi yang perlu kita bicarakan mengenai hal ini. Sebelum itu, harus kita tekankan di sini bahawa kedua-dua kes kahwin bawah umur ini adalah berlainan kerana salah satunya melibatkan kanak-kanak warga Malaysia yang berkahwin di Kelantan dengan izin hakim Mahkamah Syariah manakala kes yang satu lagi melibatkan kanak-kanak warga Thai yang berkahwin di Thailand. Maka artikel ini akan memberi tumpuan kepada kes perkahwinan bawah umur yang berlaku di Kelantan kerana ianya tertakluk di bawah undang-undang Malaysia. Soalan pertama di sini adalah..... Siapa yang membuat keputusan berkenaan perkahwinan bawah umur? Kita pernah menulis artikel yang menjawab soalan – adakah perkahwinan bawah umur sah di sisi undang-undang dan anda boleh bacanya di sini. Menurut Akta Umur Majoriti 1971, seorang kanak-kanak didefinisikan sebagai individu yang berumur kurang dari 18 tahun. Oleh itu, dengan simpulnya, perkahwinan bawah umur di Malaysia adalah sah namun begitu kanak-kanak ini bukan semestinya semuda seperti yang anda tengah fikirkan. Ia harus juga dijelaskan di sini bahawa perkahwinan bukan Muslim adalah di bawah perundangan undang-undang sivil manakala perkahwinan Muslim adalah di bawah undang-undang Syariah. Bukan Muslim – 16 tahun dan ke atas (dengan kebenaran) Untuk perkahwinan bukan Muslim, ianya tertakluk di bawah undang-undang sivil iaitu Akta Membaharui Undang-Undang (Perkahwinan dan Perceraian) 1976. Undang-undang ini menyarankan bahawa mana-mana perkahwinan di antara dan dengan individu berumur kurang dari 18 tahun adalah tidak sah. Namun, wanita yang berumur di antara 16 dan 18 tahun boleh berkahwin jika Ketua Menteri memberi kebenaran. Secara ringkasnya, ia bermaksud bahawa wanita berumur di antara 16 dan 18 tahun boleh berkahwin dengan kebenaran Ketua Menteri. Ini bermakna umur minimum untuk perkahwinan bukan Muslim adalah 16 tahun. Muslim – akil baligh dan ke atas (dengan kebenaran) Umat Muslim pula adalah tertakluk di bawah undang-undang Syariah negeri. Ini bermakna mereka tertakluk kepada undang-undang Syariah yang berlainan, bergantung kepada negeri di mana mereka menginap, manakala warga bukan Muslim pula tertakluk kepada satu undang-undang yang sama di seluruh Malaysia. Sebagai contoh, undang-undang Syariah untuk Wilayah Persekutuan terkandung dalam Akta Undang-Undang Keluarga Islam (Wilayah-Wilayah Persekutuan) 1984, manakala Enakmen Undang-Undang Keluarga Islam (Negeri Pulau Pinang) 2004 adalah untuk negeri Pulau Pinang, Enakmen Undang-Undang Pentadbiran Keluarga Islam 1985 adalah untuk negeri Terengganu dan seterusnya untuk semua negeri-negeri lain. Namun begitu, setiap negeri mempunyai had umur yang sama untuk berkahwin: Lelaki boleh berkahwin jika mereka berumur 18 tahun dan ke atas Wanita boleh berkahwin jika mereka berumur 16 tahun dan ke atas Perkahwinan dengan and antara umat Muslim yang dibawah umur-umur yang tertera di atas adalah sah sekiranya individu tersebut mempunyai tanda-tanda fizikal akil baligh dan perkahwinan tersebut dibenarkan oleh hakim Mahkamah Syariah. Secara ringkasnya, ia bermaksud bahwa lelaki di bawah umur 18 tahun dan wanita di bawah umur 16 tahun boleh berkahwin dengan kebenaran hakim Mahkamah Syariah. Ini bermakna tiada umur minimum untuk perkahwinan bagi umat Muslim. Kenapa kerajaan tidak boleh menukar undang-undang? Menurut pandangan umum, jika undang-undang digubal oleh kerajaan, maka mereka boleh menukarnya seperti mana pertukaran dibuat dari GST kepada tiada GST kepada SST. Jadi mengapa TPM Wan Azizah mengatakan bahawa kerajaan tidak boleh campur tangan? Perlembagaan Persekutuan menjadi halangan Ini tidak bermaksud bahawa Perlembagaan Persekutuan membenarkan perkahwinan bawah umur. Sebelum kita berbincang dengan lebih mendalam, harus kita faham bahawa kita mungkin menganggap bahawa kerajaan merupakan satu entiti sulung, namun secara teknikalnya kerajaan Malaysia terbahagi kepada Kerajaan Persekutuan dan Kerajaan Negeri masing-masing. Kedua-dua Kerajaan Persekutuan dan Kerajaan Negeri boleh menggubal undang-undang. Kerajaan Persekutuan menggubal undang-undang untuk seluruh Malaysia dan semua negeri secara amnya mematuhi undang-undang ini. Jika Kerajaan Negeri menggubal undang-undang yang bercanggah dengan undang-undang Persekutuan, maka undang-undang Negeri adalah tidak sah. Akan tetapi ada sesetengah perkara di mana Kerajaan Negeri diberi kuasa untuk menggubal undang-undang berkaitan perkara tersebut, dan ini tidak boleh dikawal oleh Kerajaan Persekutuan. Sebagai contoh, Kerajaan Negeri Perak mungkin boleh mengharamkan Upin dan Ipin tetapi Kerajaan Negeri Selangor mungkin boleh membenarkannya; dan tiada undang-undang Persekutuan wujud untuk ini (setahu kita la). Satu lagi contoh yang lebih praktikal adalah dengan cara Kerajaan Negeri Selangor memberi subsidi air kepada Selangor tetapi inisiatif ini tidak dilakukan di negeri-negeri lain. Untuk memahami bagian undang-undang ini, mari kita lihat Bahagian VI Perlembagaan Persekutuan yang berbincang tentang pembahagian kuasa undang-undang dan seterusnya kita akan beri tumpuan kepada Artikel 74: “Hal Perkara undang-undang persekutuan dan Negeri 74. (1) Tanpa menjejaskan apa-apa kuasa untuk membuat undang-undang yang diberikan kepadanya oleh mana-mana Perkara lain, Parlimen boleh membuat undang-undang mengenai apa-apa perkara yang disebut satu persatu dalam Senarai Persekutuan atau Senarai Bersama (iaitu Senarai Pertama atau Ketiga yang dinyatakan dalam Jadual Kesembilan). (2) Tanpa menjejaskan apa-apa kuasa untuk membuat undang undang yang diberikan kepadanya oleh mana-mana Perkara lain, Badan Perundangan sesuatu Negeri boleh membuat undang undang mengenai apa-apa perkara yang disebut satu persatu dalam Senarai Negeri (iaitu Senarai Kedua yang dinyatakan dalam Jadual Kesembilan) atau Senarai Bersama.” Artikel 74 mengatakan bahawa Parlimen (yang di bawah Kerajaan Persekutuan) boleh menggubal undang-undang untuk semua perkara yang tersenarai di bawah Senarai Pertama dan Kelima Jadual Sembilan manakala Kerajaan Negeri boleh menggubal undang-undang yang tersenarai di bawah Senarai Kedua Jadual Sembilan. Jadi mari kita lihat pula Jadual Sembilan. Sesetengah perkara adalah untuk keputusan Kerajaan Negeri sahaja Senarai di bawah Jadual Sembilan adalah panjang lebar untuk kita bincangkan di sini jadi rumusannya (berserta dengan contoh gambar rajah) adalah: Kerajaan Persekutuan – menggubal undang-undang berkenaan pertahanan negara, kewarganegaraan, pelancongan dan sebagainya. Umumnya, semua perkara utama yang memberi kesan kepada seluruh warga Malaysia. Kerajaan Negeri – menggubal undang-undang berkenaan hak milik tanah, hal ehwal Islam seperti perkahwinan, zakat dan sebagainya. Umumnya, semua perkara yang berlainan, bergantung kepada negeri. Kepada semua pembaca yang peka, anda mungkin perasan bahawa hal ehwal Islam yang berkaitan dengan perkahwinan terletak di bawah kuasa Negeri dan ini bermakna setiap negeri diberi kuasa untuk menggubal undang-undang yang mentadbir perkahwinan umat Muslim. ASKLEGAL bertemu dengan Fahri Azzat, seorang peguam Syariah yang mengesahkannya: “Di bawah Perlembagaan Persekutuan, Kerajaan Persekutuan memiliki bidang kuasa khusus untuk menggubal undang-undang untuk sesetengah perkara, begitu juga dengan Kerajaan Negeri. Ada juga perkara di mana kedua-dua kerajaan boleh mengawalnya. Walau bagaimanapun, bila ianya berkaitan dengan perkara yang berhubung dengan hal ehwal Islam – keluarga, undang-undang peribadi dan sebagainya – ianya merupakan hak Kerajaan Negeri dan bukannya Kerajaan Persekutuan, untuk menggubal undang-undangnya.” – Fahri Azzat, peguam Syariah, melalui temu ramah dengan ASKLEGAL (penekanan diberikan) Apabila dipendekkan ceritanya mengenai pengagihan kuasa perundangan dan semua yang berkaitan – Parlimen (Kerajaan Persekutuan) tidak boleh menggubal undang-undang yang di bawah bidang kuasa Kerajaan Negeri kerana Perlembagaan memberi peruntukan tersebut dan Perlembagaan Persekutuan merupakan undang-undang paling tinggi di Malaysia. Dengan itu, undang-undang Islam terletak di bawah kuasa Negeri, di mana jika Parlimen menggubal undang-undang yang tidak membenarkan perkahwinan bawah umur, ini mungkin akan bercanggah dengan Perlembagaan dan mengakibatkan konflik. Fahri menjelaskannya seperti di bawah: “Parlimen tidak boleh menggubal undang-undang yang di bawah kuasa khusus Negeri. Ini hanya boleh dilakukan oleh Kerajaan Negeri. Kerajaan Persekutuan boleh menggubal undang-undang yang tidak membenarkan perkahwinan bawah umur tetapi ini mungkin akan bercanggah dengan perlembagaan. Mereka hanya boleh menggubal undang-undang sedemikian untuk kawasan-kawasan Wilayah Persekutuan – iaitu Putrajaya, KL dan Labuan. Maka dengan itu undang-undang boleh digubal dan perkahwinan bawah umur boleh diharamkan di kawasan-kawasan Wilayah Persekutuan.” Sebab itulah kenyataan TPM Wan Azizah yang menyebut bahawa rakyat harus mengikut undang-undang dan peraturan Negeri adalah benar; isu perkahwinan bawah umur ini mempunyai banyak pertimbangan yang bertindih di antara satu sama lain. Adakah ianya kesudahan bagi isu ini? Tidak sama sekali, kerana..... Beberapa Kerajaan Negeri sedang mengkaji semula undang-undang mereka Sultan Selangor telah mengumumkan bahawa baginda menyokong usul untuk meningkatkan had usia perkahwinan untuk umat Muslim kepada 18 tahun. Ini adalah penting kerana Sultan merupakan ketua agama Islam di negeri jajahan mereka dan sokongan mereka akan memastikan bahawa perbincangan mengenai usul ini akan diteruskan dan seterusnya berpotensi untuk mengubah undang-undang di negeri tersebut. Selain dari Selangor, Kerajaan Negeri Serawak juga ingin mengkaji semula undang-undang mereka untuk mengelakkan perkahwinan bawah umur. Sebaliknya, Kerajaan Negeri Sabah pula mencadangkan penurunan umur perkahwinan kepada 14 tahun untuk mengutamakan pandangan Islam terhadap perkahwinan bawah umur. Kerajaan Persekutuan sedang berusaha dengan Jabatan Kemajuan Islam Malaysia (JAKIM) dan Menteri Besar setiap negeri untuk memberi cadangan dan mendapatkan sokongan dalam meningkatkan usia perkahwinan untuk umat Muslim. Satu perkara baik yang bangkit di tengah-tengah kontroversi isu perkahwinan bawah umur yang dilaporkan baru-baru ini adalah ianya memaksa Kerajaan Persekutuan dan Kerajaan Negeri untuk mengkaji semula dan mengambil kira pendapat umum mengenai perkara ini. Pengalaman lalu telah mengajar kita bahawa undang-undang berubah mengikut peredaran zaman dan pendapat semasa. Contoh terbaik adalah dengan pengharaman penggunaan straw plastik yang akan dilaksanakan hasil dari sentimen awam. Walau bagaimanapun, seperti yang dinyatakan oleh TPM Wan Azizah, dan seperti yang kita sudah sedia maklum, isu ini bukannya satu isu yang mempunyai penyelesaian mudah."
"If the PDRM asks you to do a urine test, can you say no? Imagine you’re driving home one Friday night and you encounter a police roadblock. You’re thinking it’s probably a drunk driving operasi so you’re prepared to wind down the window and answer a question so the officer may smell your breath. Sure enough, the policeman gestures for you to wind the window down…..and hands you a pee test cup. Another similar scenario may arise when you’re walking down the street one night in a Bob Marley shirt that your friend got you from Jamaica, and a police car pulls up and stops you. After checking your IC and asking you some basic questions, the policeman….asks you to follow him back to the station for a pee test. Both these scenarios illustrate what a pee test may be used for, which will be covered later in this article. But if this actually happened to you, you may be thinking about a long rant on Facebook about police profiling and abuse of authority. Another thought that may cross your mind is…. Can you say “no”? The PDRM have powers to get you to do a urine test There are two reasons why the police would want you to do a urine test: They suspect you are driving under the influence of alcohol (ie, your breath smelt like mojitos) They suspect you are consuming illegal drugs (ie, your eyes were bloodshot red). There are no set rules on how the PDRM may suspect that you’re under the influence, but it can be said that they must provide a good reason based on your observable condition or behavior. The powers for the PDRM to conduct these urine tests come from 3 different laws, namely: Section 45C of the Road Transport Act Section 31A of the Dangerous Drugs Act Section 3 of the Drug Dependants (Treatment and Rehabilitation) Act 1983 These sections basically reiterate the same thing which is, the PDRM can legally ask you to do a urine test, and if you refuse to comply without REASONABLE EXCUSE – you can be found guilty of an offence that may net you with a stay in prison and/or a fine. In other words, the only to avoid the urine test is if you have a reasonable excuse. Unfortunately, the law has not actually defined what amounts to a reasonable excuse; you could probably tell the police officer that you would do it after contacting your lawyer first. The PDRM must follow certain procedures Technically although the PDRM can legally ask you to do a urine test, they can’t just simply hand you a cup and tell you to take a leak. There are certain procedural rules and requirements to be followed first. These rules also vary depending on whether they are being used to catch drunk drivers or illegal drug users. Driving under the influence of alcohol When it comes to the PDRM testing for alcohol, the first thing that comes to mind wouldn’t be a urine test – it would be a breathalyzer (or referred in the Road Transport Act as a “breathanalyzer”) Section 45C of the Road Transport Act mentions that a urine test can only be conducted under the following conditions: There is no breathalyzer available or; You cannot do a breathalyzer test for medical reasons The same section also mentions that the urine test must be conducted in a police station or hospital FYI, if you are thinking of just driving off and ignoring the police… DON’T. Not following the instructions of a police officer asking you to stop your car is an offence under Section 26(2) of the Police Act 1967, unless it’s a plainclothes officer without a valid ID. [READ MORE: Can Malaysian plainclothes police stop or arrest you?] Illegal consumption of drugs While you would have to be in a car to get urine tested for alcohol, the PDRM can stop you almost anywhere for a urine drug test. It doesn’t matter if you’re driving, walking in a public place, or vigorously doing the robot in a club. The laws regarding pee tests for drugs are also not as straightforward as with alcohol. For drugs, the laws and procedures are different depending on what law you get arrested under. There are two laws in question here: Section 31A of the Dangerous Drugs Act covers a wide range of offenses which include possession (of drugs and/or paraphernalia), smuggling, manufacture of drugs, and others. In other words, you have to be arrested under the Dangerous Drugs Act before you can be asked to do a pee test. A common example is; if the PDRM finds a pack of weed in your car, they can arrest you and ask for a pee test. Section 3 of the Drug Dependants (Treatment and Rehabilitation) Act 1983 allows a police officer to conduct a urine test if they have good reason to suspect you of being a drug user. Under this law, the PDRM must detain and take you into custody before you can be asked to do a pee test. A possible scenario is, if you were questioned after walking out of a known drug dealer’s house, and the policeman notices your pupils were dilated and your replies didn’t make sense. This gives the officer reasonable suspicion to believe that you are on drugs. Mind your Pees and Q’s While the police have every right to get you to undergo a urine test, they also have to follow the procedures laid down according to law. This means that for the most part, they aren’t asking you to pee into a cup for the fun of it – not to mention that you’re at risk of getting into further trouble if you refuse. But because this situation involves law enforcement, sometimes procedural mistakes may be made – which results in you feeling like your rights have been infringed. In such a situation; try to remember the name of the officer involved, his police ID number, and the facts of the situation you were subjected to. You can then politely inform the officer concerned you would like to contact your lawyer. When you do communicate with your lawyer, relay the information above to him or her, and they should be able to advise you accordingly."
"Here's why the Malaysian government said they can't do anything about child marriages Artikel ini telah diterjemahkan kepada Bahasa Malaysia. Untuk versi Bahasa Malaysia, klik sini. Malaysians have recently been in heated debates over the issue of child marriages. This issue was first highlighted when a Malaysian man married an 11 year old Thai girl in Southern Thailand and again resurfaced after news broke on the marriage of a 15 year child in Kelantan. Netizens were thrown into an outrage when DPM Wan Azizah said that the federal government does not have the jurisdiction to intervene in this child marriage and she was quoted in the following manner: “But they were married by the Shariah court, so you have to also abide [by it] because it is also state regulations,” – DPM Wan Azizah, as quoted from The Malay Mail, 18 September 2018 If you’re frothing at your mouth now and thinking that this doesn’t make sense because they’re the government, they can change things, they make the laws, calm down and hang on tight because we’re about to take you for a ride. Before we do, we would like to highlight that these two child marriages are slightly different because one involves a Malaysian child, married in Kelantan, with the permission of a Syariah judge while the other involves a Thai child, married in Thailand. Therefore, this article would focus on the child marriage that recently happened in Kelantan as it involved the application of Malaysian laws. The first question is... Who makes decisions on child marriages? We have written an article on the legalities on child marriages and you can read more about it here. A child in Malaysia is legally defined in the Age of Majority Act 1971 as anyone who is below the age of 18. Therefore, to summarise things, child marriages in Malaysia are legal but these children may not be as young as what you’re imagining them to be. It also has to be pointed out that non-Muslims marriages are governed by the civil law while Muslim marriages are governed by Syariah law. Non-Muslims – 16 years and above (with permission) For non-Muslims, marriages are governed by the civil law via the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”). The law provides that any marriage between or with those who are under 18 years old would be void. However, the exception is that women who are under 18 but above 16, can get married if the Chief Minister agrees to such a marriage. TLDR; women who are between the ages of 16 – 18 can get married if the Chief Minister agrees. This means that the minimum age for non-Muslims to get married is 16. Muslims – puberty onwards (with permission) Muslims are governed by each State’s Syariah laws. This means that while non-Muslims have a “set” law throughout Malaysia, Muslims may be subject to differing laws, depending on which State they are in. For example, Islamic law can be found in the Islamic Family Law (Federal Territories) Act 1984 for the Federal Territories of Malaysia but you can also find Syariah law in the Islamic Family Law (State of Penang) Enactment 2004, Administration of Islamic Family Law (Terengganu) Enactment 1985, and the list goes on for all the states in Malaysia. However, with this being said, it appears that the marrying age for each state remains the same: Males can marry if they’re 18 and above Females can marry if they’re 16 and above Anyone below the ages of 18/16 with physical signs of puberty must obtain permission from a Syariah judge TLDR; males below 18 and females below 16 require a Syariah Judge’s permission to marry. This means that there is technically no minimum age for Muslims to marry. Simplifying it, child marriages in Malaysia can only happen if someone in authority (Chief Minister or Syariah Judge) has given their permission for it to take place. Why can’t the government change the law? The general public opinion is leaning towards the thought of if laws are created by the government, the government can just change the law. We have seen this happening when there was a change from GST to no GST to SST. So, why did DPM Wan Azizah say that the government cannot intervene? The Federal Constitution stands in the way No, we’re not saying our Federal Constitution legitimises child marriages. Before we delve deeper into this point, it has to be pointed out that while we may view the government as one entity, the Malaysian government, technically speaking, is divided into the Federal government and the respective State governments. Both the Federal government and all the State governments are allowed to enact laws. The Federal government enacts law for the entirety of Malaysia and generally speaking, the states follow these laws. Should the State enact a law that conflicts with Federal law, the State law is void. However, there are certain matters in which the State governments are given autonomy to enact their own laws, and these are areas which the Federal government cannot legislate on. For example, the state of Perak may ban Doreamon but Selangor may allow it; no Federal laws exist on this point (that we can find). Another more practical example is how the State of Selangor subsidises water for Selangor but this initiative is not found in any other state. To understand this divide in legislation, let’s take a look at Part VI of the Federal Constitution that talks about the distribution of legislative powers and zoom in to Article 74: “Subject matter of federal and State laws 74. (1) Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule). (2) Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.” Mumbo jumbo legalese aside, Article 74 tells us that Parliament (ran by the Federal government, so to speak) is allowed to enact law with respect to the matters listed down in the First and Third List of the Ninth Schedule while the State governments may enact law with respect to the matters listed down in the Second List of the Ninth Schedule. This all points to one direction – a trip to the Ninth Schedule. Some things are just up to the State governments to decide The list in the Ninth Schedule is long and painful but as a quick summary and a few illustrative examples: Federal government – gets to make laws on defending the country, internal security, citizenship, tourism, etc. Basically, the big stuff that affects almost all Malaysians to almost the same degree State governments – gets to make laws on land ownership, Islamic matters such as marriage, zakats, etc. Basically, the stuff that is open to variation depending on which part of Malaysia you come from Eagle-eyed readers would have caught on that Islamic matters relating to marriage falls under the State purview and this means that the individual State gets to decide on how Muslim marriages are to take place. ASKLEGAL spoke to Fahri Azzat, a Syariah lawyer who confirms the same: “Under the Federal Constitution, the Federal government has exclusive jurisdiction to make law over certain matters and the State too. There are matters where both can legislate. However, where it relates to matters concerning Islam - family, personal law, etc. - that is a matter for the State to enact laws - not Federal.” – Fahri Azzat, Syariah lawyer, in an interview with ASKLEGAL (emphasis added) Long story short on the whole distribution of legislative power and all that is this – Parliament (Federal government) cannot make laws which fall under the purview of the State because the Constitution says so and the Constitution is meant to be the supreme law of the land. Since Islamic law falls under the State control, this means that even if Parliament enacts a law criminalising child marriages, this may give rise to constitutional issues. Fahri explained it in the following: “Parliament cannot make law that is exclusively within the jurisdiction of the State. It is up to each State has to amend their laws. The Federal government can possibly enact a law criminalising child marriage but constitutional issues may arise from that. They can only make law on this for the Federal Territories - Putrajaya, KL and Labuan. So they can immediately enact a law and ban underage marriage for FTs.” This is why DPM Wan Azizah was not wrong in saying that Malaysians similarly have to abide by State regulations; the nuances behind this issue on child marriage runs deep and is a blend of many overlapping considerations. If you’re thinking that this means that this is the end of the road, it’s not because... Some states are reviewing their laws The Sultan of Selangor has announced that he gives his support to increase the marrying age for Muslims in Selangor to 18 years old. This is pretty important because Sultans are the heads of Islam in their respective States and their vote would go a long way in encouraging dialogue on child marriage and potentially changing their State’s laws on it. Aside from Selangor, the Sarawak State government is also looking into amending their customary laws in order to prevent child marriages. On the flip side, Sabah is looking into proposals that support lowering the marrying age to 14 years old in order to prioritise Islamic views on child marriages. The Federal Government are approaching the Malaysian Islamic Development Department (JAKIM) and the Chief Ministers of each State in order to propose and garner support for increasing the marrying age for Muslims. If there’s one good thing that came out of the two recent child marriage controversies, it’s that it’s forcing both the Federal government and State governments to review their positions on this matter and take into account the public’s opinion on it. As history has always shown, the law changes to match current day sentiments and opinions. The best example of this would be the upcoming ban on the use of plastic straws due to public sentiments. However, as DPM Wan Azizah said, and as you now understand, the matter is not that simple."
"How to get legal aid in Malaysia There may be a moment in your life where you get into some legal trouble. Usually, when you are in such situations a lawyer would come in handy. However lawyers are not free, and their services may be expensive for some people. Fortunately, Malaysia has certain legal bodies which actually provides legal aid for free or a subsidized rate, so that everyone can have access to legal assistance when needed. You can also read our full article on the subject here. Note that Malaysia has 3 bodies providing legal aid (The Bar Council, Legal Aid Department, and the National Legal Aid Foundation). These 3 bodies provide legal aid for different types of situations, and have different requirements for who would qualify for legal aid. Step 1: Determine if your case is criminal or civil Usually if your case involves the PDRM and a public prosecutor, more likely than not it will be a criminal matter. If a normal private person is suing you, more likely than not it is a civil matter. So, why would you need to know what type of case you are involved in? It is because, you need to know which legal aid body will take your case. Step 2: Choose a legal aid body There are 3 legal aid bodies to choose from in Malaysia: Legal Aid Department(LAD): The generally handle criminal cases where the accused has pleaded guilty. So they would come in and help you get a lighter sentence. They also handle certain civil cases. Bar Council(LAC): Handles most criminal and civil cases. One main difference with the LAD, is that the Bar Council may take your case even if you plead not guilty in court. National Legal Aid Foundation(YBGK): Handles any criminal cases, except those that involve the death penalty. [If you want to find out more about what each bodies do, check out our article: What to do if you can’t afford a lawyer in Malaysia] Step 3: Sit for the qualification test This test isn’t like those you used to sit for in school. These examinations are taken so that these legal aid providers can decide whether you qualify for legal aid. The test would basically be done to gauge your financial status. The LAD actually allows you take an online test to see if you do qualify. However, you should know that the online test is not the final test. As for the LAC and and the YBGK, they require you to walk-in and fill out some forms to determine your eligibility. Step 4: Show that you have a legit case Once you pass the test for financial eligibility, you may have to sit for another test. This test would have nothing to do with your financial status, but more with your case. In essence, these legal aid bodies want to determine whether your case is legit or whether it’s worth their time taking it. The LAC and LAD employs a means test to determine this. YBGK on the on the other hand, does not employ a means test, because they believe it is your right to have a lawyer in a criminal case. [We explain more about what these tests are about here: What to do if you can’t afford a lawyer in Malaysia] To help them make a decision, it is advised you bring necessary documents like your IC, pay slips, police reports, and other documents related to your case. If you are not sure which documents would be related to your case, you can call up the relevant legal aid body to clarify. Step 5: Follow the advice and instructions of your provided lawyer The steps previously mentioned exist to make sure those who truly deserve assistance get the help they need. When you do qualify for legal aid, follow the advice of your appointed lawyers – go to court when they tell you, bring whatever documents they may need, etc. This would surely make the task of your lawyer easier and it would increase your chances of making sure there is a fair outcome from your case."
"What’s “illegal alcohol” according to Malaysian law, and what makes it dangerous? Except for religious or personal reasons, you probably enjoy a stiff drink from time to time, having a relaxing time with friends and family - so the last thing you want is someone getting sick because you bought illegal alcohol. These illegal alcohols are usually really cheap unknown brands, or might look like a super cheap deal on your favourite brand from some dodgy-looking shop. The problem with these bargains is as with many things: what looks too good to be true usually is. This was exactly what happened to 51 men as of 5pm on 18 September 2018, who had consumed the alcohol brands Mandalay Whiskey, Kingfisher Beer, and Grand Royal Whiskey which were bought from several stores in Klang Valley. Health director-general Datuk Dr Noor Hisham Abdullah expects more cases as other people who bought those brands come in for treatment. But uhh… What makes an alcohol “illegal” in the first place? Illegal alcohol is toxic and can kill you The main problem with a lot of cheap alcohol is that they are homebrewed or made by unlicensed distilleries. This is because they either manufacture toxic alcohol, or refill and repackage well known brands with either a cheap version or just a mixture of water, alcohol, and fragrances. The chemical in question added to those brews is methanol, a type of alcohol that is sweeter than the usual ethanol alcohol we find in alcoholic beverages, but also extremely toxic. Methanol is actually naturally found in fruit juices (because of a chemical called pectins that are found in certain fruits), and distilled spirits like beer, whiskey, and wine. But there is only so little methanol in, say apple juice which has about 0.2%, so 250ml of apple juice would only contain 0.5ml of methanol - hardly anything at all. Even an average wine may only contain between 0.0041% to 0.02% methanol. For reference, legit alcohols from breweries will contain trace amounts of methanol, while distilleries do as their name suggests and distil the methanol out of their drinks. The problem begins when you drink enough to reach the average lethal dose for methanol, which is about 2ml per kg of your body weight. So if you were 50kg, you would need to drink 100ml of methanol to die from it - which is...200 litres of apple juice…That’s more than double the amount of fluid you have in your body right now. In other words, illegal alcohols contain much higher amounts of methanol, which can cause headaches, dizziness, and even blindness among other symptoms, and of course, death as well. There are regulations for how alcohol is made and what it contains Our Food Regulations 1985 have details on how each type of alcoholic drink should be made, and what types of chemicals are permitted inside them. There are also some specifications for what products can be called, for example, wine can only be labelled “wine” if it complies with the regulations on what a wine should contain, and a wine can only be called “sparkling” if the carbon dioxide bubbles were only from its fermentation (and not added later on). Anyone who sells food or drinks which don’t comply with the Food Regulations 1985 commits an offence under Section 14 of the Food Act 1983: “Any person who sells any food which is not of the nature, or is not of the substance, or is not of the quality (as specified under this Act and any regulation made thereunder) of the food demanded by the purchaser, commits an offence...” The penalty is up to 5 years in prison and/or a fine. Since we’re talking about the toxic methanol as well, Section 13 can apply as well, which involves the selling of food that is poisonous, harmful, or otherwise injurious to health. The penalty under this section is much higher at up to a RM100,000 fine and or up to 10 years of jail. We technically could involve Sections 13A(2) and Section 13B as well, but that’s a bit too much detail to get into. Basically, they involve selling food that is unfit for human consumption, and selling adulterated food respectively (mixed with substances that aren’t supposed to go in). But how do you tell if it’s illegal without drinking it? Incidents of “bootleg” alcohol which contain toxic substances are a persistent problem, Indonesia also faced this issue where almost a hundred people died from drinking the cheap stuff. There’s no surefire way to tell how much methanol a drink contains without sending it to a lab for analysis, but it’s not that difficult to identify dodgy items and avoid them. Only buy your alcohol from reputable dealers like major supermarkets, and licensed retailers (online ones as well). Look out for strange “discounts” on well known brands. You’re not going to find a legit RM50 Hibiki whiskey out there. Check the labels for mistakes and irregularities like typos, slanted labels, bits of glue hanging off the edges, and creases. These will be telltales signs of an illegal repackaging operation. Another big flag is the seal on the bottle. The caps and/or corks should be sealed tight and intact, and have a duty-paid hologram stamp from Malaysian Customs. Tampered bottles will have caps that look like they’ve been opened before or might not even match the bottle. If you’re familiar with what a drink should smell and taste like, look out for strange aromas that smell like detergent or petrol, and differences in taste. Return any of these bottles you encounter, and/or report them to the Ministry of Domestic Trade and Consumer Affairs."
"How to get money back from your friends in Malaysia This is a situation that we are all privy to – we have loaned money to friends only to have problems trying to get it back later. Sometimes it’s a small amount that can be written off, or it may be a large amount, or it could simply be a matter of principle. Hiring a lawyer can be equally as expensive but you can actually get your money back without involving lawyers using these 3 simple steps. This is known as a small claims procedure and it can be found in Order 93 of the Rules of Court 2012. If you are interested in reading a more detailed version of this article, click here. Do note that this procedure only applies to loans which do not exceed RM5,000 because the law has defined small claims as such. Step 1: Get Form 198 from your local Magistrate Court Kickstarting the process is as simple as filling up a form that is readily available from the court. In a nutshell, the information that you have to fill in are as follows: Fill in your (Plaintiff) full name, IC number, and current address Fill in the borrower’s (Defendant) full name, IC number, and last known address State the exact amount you are claiming for State the particulars of your claim e.g when it happened, why it happened. If you have proof of money borrowed such as bank in slips, text messages, etc include details on that as well such as the transaction number and so on. Sign the form and hand over 4 copies to the Registry of the Second Class Magistrate together with RM10 The Registrar will then affix the Court’s seal on the forms and set a hearing date for you. While you may consult a lawyer when filling up the form, you cannot be represented by the lawyer during the hearing. You can find your local Magistrates Court in this list here. Step 2: Post out that filled and sealed form After the form has been sealed, you have to send it to your borrower either in person or via registered post only. It is important to only use either of these methods because it is prescribed by law to ensure that you have done all you can to bring your claim and the hearing date to your borrower’s attention. Step 3: Show up in court at the given date This is a pretty important final step as if you fail to show up, the court can dismiss the action or they can even make an order in favour of your borrower (if he has submitted a counterclaim) and make you pay for the costs he has incurred in defending himself against your claim. Aside from losing by default, it is also important to show up in order to present your case to the court and show the judge the necessary proof to back up your claim (this is where the bank in slips and so on come in). Third, it is also important to show up to...get your money. If the court decides to rule in your favour then it would be important to show up in court to get the judgment so that you would know how to enforce it. There you have it folks. 3 easy steps to get your money back and as mentioned, if you want the detailed version, click here."
"Can the PDRM stop you from calling your lawyer? It’s late. You’re driving home and all of a sudden, you see a police road block in front of you. You assume that it’s some kind of operasi because of how late it is but...they gesture for you to pull over. You sigh and pull over, pulling out your licence. As you wind your window down, the officer tells you to step out of the car. You are confused because it’s never escalated to this point. As you step out, the police tell you that they are placing you under arrest and taking you back to the station. You sputter your innocence and start to panic but wait...your best friend is a lawyer! You whip out your phone and ask to call your lawyer but the police tell you that you can’t do that and lead you away. To kick start our discussion on can they do this, the first thing to know is… You have rights even when arrested by the PDRM We have covered these rights in detail in another article here but as a brief overview, the rights you are entitled to under the Criminal Procedure Code (“CPC”) are: The right to remain silent The right to be informed of the true grounds of your arrest The right to a lawyer The right to communicate with relatives or friends The right to appear before a Magistrate within 24 hours of your arrest (weekends are a different story though, you have to wait until the court reopens on Monday) These are the five essential rights that you would have when arrested and they can be found in section 28, section 28A, and section 112 of the CPC respectively. For the purposes of this article, let’s zoom into the right to a lawyer in section 28A: “A police officer shall, before commencing any form of questioning or recording of any statement from the person arrested, inform the person that he may...communicate or attempt to communicate and consult with a legal practitioner of his choice.” In essence, the section tells us that before the police questions you, they must inform you that you can contact your lawyer. Aside from that, they must also reasonable time for your lawyer to come and for you to have a consultation with him (section 28A(4)). Aside from giving reasonable time to your lawyer to consult with you, the officer must also defer questioning until after the consultation and provide space and facilities for you to consult with your lawyer. In essence, if you are ever arrested, you can request for time to contact your lawyer and then wait for him to save the day. With that being said, before you lift your pitchfork and scream for blood… The police can delay giving you your right to see a lawyer The keyword here is that they can only delay it but they cannot deny it. Section 28A(8) tells us that a police officer can prevent you from seeing your lawyer if they believe that by doing so, it would result in these scenarios: You giving information to your accomplice for them to avoid arrest Destruction of evidence Intimidation of witnesses Aside from all these scenarios, the police can also delay your right to a lawyer if they think that it is paramount to question you as quick as possible in order to ensure the safety of other persons. This is how the section reads: “The requirements under subsections (2), (3), (4), (5), (6) and (7) shall not apply where the police officer reasonably believes that— (a) compliance with any of the requirements is likely to result in— (i) an accomplice of the person arrested taking steps to avoid apprehension; or (ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or (b) having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should not be delayed.” Once they believe that the threat of the scenarios above happening have passed, then they must allow you to call your lawyer. In addition to all this, the authorisation to delay your right to a lawyer can only be given by a policeman not below the rank of Deputy Superintendent of Police. In summation… The right to a lawyer is always there Even if you have been arrested for heinous crimes, the police can only delay you the right to a lawyer for as long as it takes them to ensure that you won’t divulge information to protect your accomplice, destroy evidence, intimidate witnesses, or harm the safety of others. This is because everyone is always presumed innocent until found guilty and are entitled to proper legal representation. If you feel like your rights have been infringed, you can always bring a civil suit (sue) but this is very case dependent and you should probably consult a lawyer before taking further action."
"How To: Handle a traffic accident in Malaysia 1. Check yourself for injuries Check for wounds and bleeding. Call an ambulance if you need medical assistance, and do what you can to give yourself some first aid (it helps if you’ve kept a well-stocked first aid kit in the car). If any foreign objects are stuck in your body, do not remove them as you could bleed out faster. 2. Check your surroundings to see if it’s safe Be aware of your surroundings and the other drivers involved before stepping out of your vehicle. If you are in immediate danger from the other drivers or an angry mob gathering, you are allowed by the law of self-defence to escape to the nearest police station to make a report instead of stopping. [READ MORE - If I get into a car accident, can I go to the nearest Balai Polis instead of stopping?] 3. Take pictures of the damage to all cars, and injuries to people Before anything else, make sure everyone is okay and call for an ambulance if anyone is hurt. Depending on the situation, try to take pictures of the accident scene BEFORE moving your vehicles to the side of the road. Of course, you shouldn’t take unnecessary risks if the scene is dangerous. You should take pictures of all damage sustained by EACH vehicle involved in the accident (make sure the registration number of each vehicle is clearly visible), as well as any injuries the people involved have. Be sure to note the time and location of the accident. Note: If the accident is serious (eg. both cars are totaled), call the police and wait for them to arrive. 4. Move your vehicles to the side of the road When moving your vehicles, make sure to keep your hazard lights on as you pull over to the left-most lane of the road (or the emergency lane). 5. Exchange details with the other driver(s) Meet with the other driver(s) involved. Make sure to exchange the following details with all drivers involved: Vehicle registration number Vehicle model, colour, and model year Driver’s Name, Address, and Phone Number Vehicle Owner’s Name, Address, and Phone Number (if different from the driver) Driver’s IC number and Driving Licence number. Also take down the details of any witnesses if you can. 6. Go make a police report within 24 hours Head over to the nearest police station with a traffic police division to make your report. It’s usually the district’s HQ, but you may have to find out which one it is for your area. You should still make a police report even if you’re not claiming insurance to protect yourself from surprise third party claims who may twist the story against you. If you have a valid reason for not making a report within 24 hours (like being injured in the hospital), the police will still accept your report. [READ MORE – Can you still report an accident to the PDRM after 24 hours have passed?] 7. Contact your insurance provider and make a claim if needed There are 4 main types of insurance claims you can make: Own Damage Claim (claiming for own damage through your own insurance policy) Own Damage Knock for Knock (claiming your own insurance for damage to your vehicle, without losing your No Claim Discount) Third Party Property Damage Claim (claiming against the other driver for damage to your vehicle) Third Party Bodily Injury Claim (claiming against the other driver for medical costs) There are specific conditions that you may need to meet for each type of claim. Contact your insurance provider through their hotline, or reach out to your insurance agent for help. [READ MORE – If you're hit by a driver with no insurance, this Malaysian agency can help... for FREE]"
"Apa akan terjadi jika anda ditangkap ketika mengunjungi rumah urut haram? Artikel ini diterjemahkan daripada Bahasa Inggeris. Click here for the English version. Kita di Malaysia memang suka mengunjungi rumah urut, dari rumah urut yang terkenal di pusat membeli-belah sehinggalah rumah-rumah urut kecil yang bersepah di sekitar kawasan Bukit Bintang. Persoalannya, apakah yang akan terjadi jika kita ditangkap ketika mengunjungi rumah urut haram? Ada dua jenis rumah urut haram: Rumah urut yang tidak memiliki lesen yang sah Rumah urut yang menawarkan perkhidmatan yang tidak dibenarkan di sisi undang-undang. Dalam senario pertama, anda mungkin tidak akan ditahan kerana ianya merupakan masalah pelesenan di antara pemilik rumah urut dan pihak berkuasa, cuma ianya mungkin akan mengganggu sesi urut anda, oleh itu, kita akan mengkaji kes rumah urut yang menawarkan perkhidmatan yang tidak dibenarkan di sisi undang-undang. Apakah jenis perkhidmatan yang tidak dibenarkan di sisi undang-undang? Tiga jenis situasi yang bakal dihadapi pengunjung yang ditangkap di rumah urut haram adalah pelacuran, dadah dan perkhidmatan seks sejenis. Bagi pelacuran, anda boleh dipenjarakan tidak lebih dari satu tahun atau didenda jika anda didapati meminta atau menggunakan perkhidmatan tersebut. Seksyen 372B Kanun Keseksaan bagi tujuan pelacuran: Barang siapa yang mencari langganan atau mendesak bagi maksud persundalan atau mana-mana maksud perbuatan lucah pada mana-mana tempat hendaklah diseksa dengan penjara selama tempoh tidak melebihi satu tahun, atau denda, atau dengan kedua-duanya. [READ MORE: Adakah pelacuran haram di Malaysia? Jawapannya agak mengejutkan] Bagi dadah, ianya agak mengelirukan, kerana ia bergantung kepada apa yang anda lakukan dengan dadah tersebut, berapa banyak yang anda miliki dan banyak faktor lain. Anda boleh didakwa mengedar, memiliki atau menggunakannya di bawah Akta Dadah Berbahaya 1952. [READ MORE: Lima fakta yang perlu anda tahu tentang undang-undang dadah di Malaysia] Jika anda tertanya-tanya apakah yang akan berlaku jika anda ditangkap mengunjungi spa yang menawarkan perkhidmatan seks sejenis, ianya jatuh di bawah Seksyen 377A Kanun Keseksaan dan anda boleh dipenjarakan untuk tempoh tidak melebihi 20 tahun: Mana-mana orang yang melakukan perhubungan seks sengan seseorang lain dengan memasukkan zakarnya ke dalam dubur atau mulut seseorang itu dikata melakukan persetubuhan yang bertentangan dengan aturan tabii. Apa akan terjadi jika anda ditahan? Selepas ditahan, anda mungkin akan dibawa ke balai polis untuk siasatan lanjut. Anda hanya boleh ditahan untuk 24 jam dan dalam masa itu anda boleh menghubungi rakan, ahli keluarga atau peguam anda. Jika anda meminta khidmat peguam, pihak polis mesti memberikan masa yang munasabah untuk anda berjumpa dengan peguam untuk membincangkan kes. Ini diterangkan di dalam seksyen 28A(2) dan 28A(4) Kanun Prosedur Jenayah (“KPJ”): Seksyen 28A(2) KPJ: (2)Setelah seseorang itu ditangkap, sebelum pihak polis memulakan sebarang penyoalan dan rakaman, orang yang ditangkap berhak kepada perkara-perkara berikut- (a) berkomunikasi atau cuba berkomunikasi dengan keluarga atau rakan untuk memaklumkan dimana dia berada; dan (b) berkomunikasi atau cuba berkomunikasi dan berunding dengan peguam pilihannya. Seksyen 28A(4) KPJ: Sekiranya orang yang ditangkap meminta untuk berunding dengan peguam, pegawai polis hendaklah membenarkan peguam tersebut berjumpa dengan orang yang ditangkap ditempat tahanannya. Jika pihak polis tidak dapat melengkapkan siasatan mereka dalam masa 24 jam, maka anda boleh ditahan untuk tempoh yang lebih lama jika majistret mengizinkan tempoh lanjutan (atau dikenali sebagai reman). Ini terkandung dalam seksyen 117(1) KPJ, dengan garis panduan mengenai tempoh tahan reman tapi topik ini akan dibincang dalam artikel lain. Selepas semua ini berlaku dan bergantung kepada bahan bukti, pihak polis boeh mendakwa atau membebaskan anda. Apa kata jikalau saya berada di situ untuk khidmat urut yang asli? Jikalau anda berada di rumah urut haram dengan tujuan mendapatkan khidmat urut yang asli atau anda tidak tahu apakah itu “urut batin” (betul ke ni?) yang ditawarkan oleh rumah urut yang sering anda kunjungi, anda masih boleh ditahan semasa serbuan polis. Ya betul! Pihak polis tidak perlu menangkap anda semasa anda melakukan jenayah ataupun bersedia untuk melakukan jenayah di rumah urut. Anda hanya perlu berada di dalam premis. Ini adalah kerana walaupun kita arif dengan kenyataan “tidak bersalah sebelum terbukti” (“innocent until proven guilty”), pihak polis masih boleh menahan anda sebagai orang yang disyaki. Anda masih lagi tidak bersalah setelah ditahan dan kenyataan tersebut hanyalah untuk perbicaraan mahkamah, selepas siasatan polis dilakukan. AskLegal bertemu dengan seorang peguam hak asasi manusia dan jenayah yang menyatakan bahawa.... “Apa yang diperlukan untuk tangkapan adalah syak munasabah. Biasanya jika anda dijumpai di rumah urut haram yang menyediakan perkhidmatan yang tidak dibenarkan di sisi undang-undang semasa serbuan polis dalam keadaan yang menunjukkan bahawa anda ada meminta perkhidmatan yang tidak dibenarkan atau dijumpai memiliki barang yang tidak dibenarkan, pihak polis boleh mendakwa yang mereka mempunyai syak munasabah untuk menahan anda” – Dinesh Muthal, dalam satu temu ramah dengan AskLegal Penggunaan syak munasabah (“reasonable suspicion”) untuk menahan orang yang disyaki (dikenali sebagai tangkapan tanpa waran) lazimnya digunakan untuk ‘kesalahan boleh ditangkap’ (“seizable offence”). Kesalahan boleh ditangkap disenaraikan di bawah Jadual Pertama KPJ, dan semua kesalahan seperti yang diterangkan di atas adalah kesalahan yang boleh ditangkap. Seksyen 23(1)(a) KPJ memberi kuasa kepada polis untuk membuat tangkapan tanpa waran: “Mana-mana juga pegawai polis atau penghulu boleh tanpa waran ataupun perintah daripada Majistret menangkap – (a) mana-mana orang yang terlibat dalam sebarang kesalahan yang dilakukan di mana-mana jua dalam Malaysia yang mana ia adalah kesalahan boleh ditangkap di bawah sebarang undang-undang yang berkuatkuasa dalam bahagian Malaysia itu dalam mana ia telah dilakukan, atau terhadap sesuatu aduan yang munasabah yang dibuat, atau maklumat yang boleh dipercayai telah diterima atau wujudnya syak yang munasabah di mana orang itu telah terlibat....” Jadi, berdasarkan syak munasabah, pihak polis boleh menahan anda jika anda berada di dalam rumah urut haram semasa serbuan polis dibuat walaupun anda tidak mempunyai niat tersirat. Apa yang boleh saya buat untuk mengelakkan tangkapan? Lebih baik jika anda melawat rumah urut yang terletak di dalam pusat membeli-belah terkenal kerana lazimnya mereka mempunyai lesen yang sah dan tidak menawarkan khidmat yang tidak dibenarkan. Satu lagi cara untuk mengelakkan serbuan polis adalah dengan memastikan lesen yang sah dipamerkan di tingkap atau kaunter rumah urut. Anda masih boleh melawat rumah urut yang mencurigakan jika ianya masih tempat pilihan anda kerana seperti yang telah dijelaskan di atas, jika anda ditangkap ia tidak bermakna anda bersalah. Anda hanya perlu bertanya kepada diri sendiri sama ada ia berbaloi ataupun tidak. [READ MORE: Jika anda ditahan PDRM, adakah is bermakna anda bersalah?]"
"If you get an allergic reaction from restaurant food in Malaysia, can you sue? If you have a food allergy, or know someone with one, you already know how troublesome it can be to buy food from anywhere. For groceries, you’ve got to check every ingredient on food labels, and check the trace ingredient warnings that go “may contain nuts, dairy products, and wheat” before buying anything. Then, when eating out, you have to check with the waiters (who sometimes don’t know) about the ingredients. Even then, you could still risk an allergic reaction because of cross-contamination when utensils are not properly cleaned between uses. In light of common food allergies like nuts, shellfish, and egg - it seems fair that people who sell food should warn customers, right? Because of the hospitalizations and even deaths that can occur, in Europe, there are regulations that require restaurants and supermarkets to tell their customers when food contains any of 14 common food allergens. Now for the million Ringgit question: does Malaysia have a similar law? No, and you might not even be able to sue them Imagine having an egg allergy. You know you definitely have to avoid most pastries, but you somehow also get an allergic reaction when eating a new type of fried chicken, because they glaze their chicken with...egg wash. Maybe it’s only a mild reaction, but your airway could also be closing up and you now need to be rushed to the hospital. That’s unfortunately the case for people with food allergies when they don’t know exactly what is going into the food. It’s actually dangerous to eat out. As for whether you can successfully sue a restaurant if you get a reaction from their food, there haven’t been any reported cases, so it’s unclear what the outcome would be. Currently, case law in Malaysia only recognizes negligence in allergy cases where medicine is involved, for example, if a doctor prescribed an antibiotic that a patient is allergic to without checking the patient’s medical history. [READ MORE - The law of negligence was created by... a Scottish Snail] Food handlers at Food & Beverage establishments DO need to adhere to lots of safety and hygiene regulations, but giving allergen warnings is NOT one of them. [READ MORE - What can Malaysian authorities do against dirty restaurants besides closing them down?] Yes, you’ll still find that some shops (especially international brands) do label their food with potential allergen warnings, but it’s not mandatory for them to do so, unless they sell pre-packaged food... Food packages need to include 5 allergen warnings Thankfully, groceries and pre-packaged food (like box meals you find in cafes and convenience stores) are required to have allergen warnings on them according to Regulation 11(1)(ea) of the Food Regulations 1985: “... if the food contains ingredients known to cause hypersensitivity, the ingredients shall be declared on the label;” These ingredients are designated in Regulation 11(5) as: cereal containing gluten including wheat, rye, barley and oat; nut and nut product including peanut and soybean; fish and fish product; milk and milk product (including lactose); and egg and egg product. “Hypersensitivity” in this case means more than just allergies, and would include lactose intolerance from milk products. Only 5 types of common allergens are listed here, but it’s a pretty good start seeing that this law has not been updated for a long time. If you ever have the misfortune of eating something which contains one of the above BUT was not properly labelled, you can make a complaint to the Ministry of Health through their online portal here, or you can make a call to the Food Safety and Qualify Division at 03 8883 3553. Here are some (practical) precautions you can take Firstly, if you’re in favour of an update to our food laws, you can write a letter to the Member of Parliament (MP) of your constituency to express your views and concerns. Our friends at CILISOS have a guide on how to do so over here. In the meantime, since there is no duty for restaurants to tell you what their food contains, the first precaution people with food allergies can take is to always ask whether the meals contain any allergens. If the waiter doesn’t know, ask for someone who can verify. The second is especially vital for people who have severe reactions, or rarer allergies that few people think of like chocolate and even chilli (like this writer): You can keep some antihistamine pills from your doctor or local pharmacy on standby (you may need a doctor’s prescription for some types). These basically counteract your allergic reaction, and might just save your life. According to a pharmacist friend of ours, it’s best to take the antihistamine before a risky meal instead of after since there is a delay in the effect: “Antihistamines are best taken before any potential allergies. Your body produces histamines during an allergic reaction, which is basically your body overreacting and harming itself. The antihistamines block their production so that your allergy will not trigger."" With food allergies, you can never be 100% sure because you don’t know if an ingredient was used in the wok used to cook your meal and not washed properly, and restaurants may modify recipes to include unexpected ingredients - which could include what you’re allergic to."
"Can you still report an accident to the PDRM after 24 hours have passed? We ask you readers to imagine a lot of automotive nightmares, from the distress of getting a hit-and-run, to the heartbreak of getting hit by a car with no insurance. Today, how about imagining something even worse? Imagine getting into a traffic accident where you’re so badly injured you have to be hospitalized for a few days (god forbid). And now turn your thoughts to what you have to do next - make a police report. Everyone knows that you have to make a police report for a traffic accident within 24 hours of the incident. BUT, you’re also badly injured and can’t make it - will the police still take the report from you if you can only go to a police station a few days later? To answer that, we first have to look at the exact law which creates our duty to report accidents. You MUST report ALL traffic accidents within 24 hours The piece of law about reporting traffic accidents is in Section 52(2) of the Road Transport Act 1987 (RTA), which states that: “In the case of any such accident as aforesaid the driver of such motor vehicle…...shall report the accident at the nearest police station as soon as reasonably practicable and in any case within twenty-four hours of such occurrence…” - emphasis added. [READ MORE - If you hit a car from behind in Malaysia, is it automatically your fault?] You probably wouldn’t realize but there’s actually a specific definition for an “accident” in the law: “ “accident” means an accident or occurrence whereby damage or injury is caused to any person, property, vehicle, structure or animal;” - emphasis added. (Fun fact: cats are not counted as “animals” in this case for some strange reason.) But it’s okay if you have a good reason for being late So, Section 52(2) basically says that strictly speaking, even the most minor of traffic accidents must be reported. And yes, it is deemed a crime to not report an accident, which is provided under Section 119(1) of the RTA. It’s rather lengthy and technical, but basically says that if you don’t have a lawful excuse for not complying with the RTA, then you’ve committed a crime. The penalty for a first offence is up to RM2,000 or up to 6 months in jail, and for repeat offences, the penalty goes up to a maximum of RM4,000 and/or up to 12 months in jail. But, the police do not blindly penalize you for making a late report as there are pretty common reasons you might not be able to do so on time. You might have difficulty moving, you might be in shock for a while, or you could even be out cold and recovering in a hospital - the point is, it’s okay if you were hurt and weren’t able to make a police report immediately. Remember that Section 119(1) states it’s only a crime if you do it “without lawful excuse”, so if you have a valid reason for not making the report on time, the police are actually happy to accommodate. As an example, this writer’s friend once made an accident report 2 days late, and the police accepted her explanation of “trauma” for the delay in her report. [READ MORE - What can you do if no action was taken on your police report in Malaysia?] One more thing… Settling privately is not exactly legal Many Malaysians choose not to report minor accidents where no one got hurt and the vehicle damage is minimal. Although it’s a commonly used method, this actually isn’t a legally recognized way to settle an accident (even if you’ve written a contract for it). If you get into the dreaded situation where you were negotiating with the other driver, but they decided to back out at the last minute and maybe even start demanding money, it’s not clear whether this scenario is recognized as a “lawful excuse” for making a report after the 24 hour limit. In short, the other driver can still make a report even after “settling” with you - and you will have to deal with the police. So, the safe thing to do is to still make a police report to protect yourself against 3rd party claims where the story may be spun against you. More so, you should avoid settling accidents bigger than a scratch unless you’re absolutely certain you can trust the other driver (which is almost never). It’s troublesome, you might get fined, and you might even lose your insurance No Claim Bonus/Discount, but it can sometimes be better than being extorted for money to repair the other driver’s vehicle - not to mention if you don’t make a report, they could file a report and make a claim against you anyway, and you’d have little chance of defending yourself."
"Why do you sign a ""standard contract"" when buying a house from Malaysian developers? If you have read our articles on contracts, you may have seen a common trend where we tell you that strictly speaking, there is no such thing as a “standard contract”. What we mean by this is that one general contract template, cannot be used for everyone. This is because every scenario or situation would always be different and it is best to get a tailor made contract for yourself. However, as it turns out there is one exception to this – when you buy a house from Malaysian developers. The sale and purchase agreement that you sign is always a standard contract; you sign the same contract as someone who buys an apartment in Kota Bahru. You may think that something fishy is going on here but this is actually the reversed. In this particular instance, standard contracts were created to protect buyers. This is because... Purchasers used to get ripped off [READ MORE: What can you do if your Malaysian developer abandons your property?] Back before the government decided to step in and implement standard contracts for home purchasers from developers, we used to see situations where the certain unscrupulous developers would take advantage of purchasers because they were in a better position to negotiate. If you are wondering why the developers would be in a better position to negotiate, think of it in this way – the developers were basically the big guys who were able to negotiate the terms of the contract and they knew that if you wanted to buy their house, they are the only sellers (think of monopoly). Aside from that, many purchasers were also left in the lurch because their housing projects would be abandoned by the developers. Due to all these problems, the government decided to enact the Housing Development (Control and Licensing) Act 1966 (“HDA 1966”) in order to protect the buyers from unscrupulous developers. As a matter of fact, in the groundbreaking case of SEA Housing Corporation Sdn Bhd v Lee Poh Choo, the judge said this: “...that Act, though silent as to the possibility of contracting out, nevertheless is manifestly passed for the protection of a class of persons who do not negotiate from a position of equal strength, but in whose well-being there is a public as well as a private interest."" [emphasis added] The HDA 1966 read together with the Housing Development (Control and Licensing) Regulations 1989 (“HDR 1989”) gave birth to… A bunch of different “standard contracts” If you are wondering why there are a bunch of different standard contracts when the word “standard” kinda implies that it is set, it is because the HDA and HDR came up with different standard contracts for different kinds of titles. For example, if you bought an apartment from a developer and it comes with a strata title, the contract that has to be used is found in Schedule H. Generally speaking, you would probably come across the following schedules only: Schedule G – for individual titles e.g bungalows, terrace houses, semi-detached houses etc. Schedule H – for strata titles e.g apartments, condominiums, gated and guarded communities etc. While most of the terms in both these kinds of contract are similar, there are certain differences that we will flag out to you guys over a series of articles. Aside from that, while this may be a standard contract, the terms can still be changed, subject to the developer providing reason and obtaining approval from the Controller of Housing. Each of these Schedule contains a contract that has terms that are meant to protect homebuyers and we will explain it in separate articles. At the end of the day, while we may have explained that standard contracts do exist, they exist only because the government saw fit to step in and protect homebuyers."
"Salah siapa kalau saya langgar kereta yang ‘double park’? Kamu mesti pernah terserempak dengan frasa ‘double parking’. Ia adalah suatu cara letak kereta yang biasa digunakan di Malaysia, terutamatanya di kalangan orang yang malas nak cari parking. Mesti ramai orang yang berpendapat tentang cara letak kereta yang tak bertimbang rasa ini, dan selalunya orang akan berpendapat negatif tentang isu ini. Jika kamu masih ingat, 3 tahun dulu terdapat suatu kejadian di mana sebuah trak 4WD merempuh sebuah Myvi yang ‘double park’. Walaupun, agak kelakar untuk tengok situasi seperti itu, tetapi bukan semua yang mampu (bukan sebab kesian, tetapi sebab dompet) atau berani untuk membuat apa yang permandu trak lakukan. Biasanya, dalam situasi tersebut kita bergantung kepada telinga orang yang double park untuk mendengar hon yang kami tekan secara berterusan. Tetapi, bayangkanlah jika kamu berang seperti pemandu trak yang disebut tadi, atau pun semasa anda mengundur kereta anda tidak nampak kereta yang double park. Siapa yang salah jika anda sengaja/tidak sengaja melanggar kereta double park? Sebab walaupun anda melanggar kereta itu, kereta yang ‘double park’ tak patut letak kereta seperti itu, betul? Sebenarnya, ia masih salah anda Tak kisalah sama ada sengaja atau tidak, anda masih bersalah dalam situasi ini. Mari kita lihat contoh senario di mana anda melanggar kereta tersebut dengan sengaja. Mungkin anda tidak berpuas hati dengan jawapan ini sebab…...ORANG TU DOUBLE PARK! DIA YANG MELAKUKAN KESALAHAN JALAN RAYA DULU! Namun perkara sebegini tidak akan dipandang ringan di sisi undang-undang. Jika anda melanggar kereta yang ‘double park’, anda akan didakwa di bawah LN166/59 Peraturan 10 Kaedah-kaedah Lalu Lintas Jalan 1959 (tertidur semasa memandu atau gagal mengawal pergerakan kenderaan), di mana anda akan dikenakan denda sebanyak RM300. Malangnya, kita tidak menjumpai salinan ini di atas talian (online). Ingat tak pemandu lori yang kita sebut di atas? Dia pula didakwa di bawah Seksyen 43(1) Akta Pengangkutan Jalan 1987, yang mengatakan bahawa: “Seseorang yang memandu suatu kenderaan motor di jalan tanpa kecermatan dan perhatian yang sepatutnya atau tanpa pertimbangan yang munasabah terhadap orang lain yang menggunakan jalan itu melakukan suatu kesalahan....” Dia boleh dihukum denda dari RM4,000 hingga RM10,000 dan dipenjarakan sehingga tidak lebih dari 12 bulan. Sebaliknya jika ia berlaku dengan tidak sengaja (kemalangan), ianya masih lagi salah anda berdasarkan anggapan yang ada masih banyak ruang untuk anda bergerak dan mengelak ataupun anda boleh melihat kenderaan tersebut. Namun ia juga bergantung kepada keadaan dan juga budi bicara pihak polis untuk membuat keputusan. Eh tunggu - kereta yang ‘double park’ itu pun bersalah juga! Jangan bimbang saudara saudari sekalian, kerana mereka pun bersalah juga. Menurut Ketua Trafik Kuala Lumpur SAC Mahamad Akhir Darus, bukan sahaja kereta tersebut akan ditunda, mereka juga akan dikenakan denda sebanyak RM300. Tambahan pula, ia tertakluk di bawah Seksyen 48(1) Akta Pengangkutan Jalan 1987 yang menyatakan: “Jika mana-mana pemandu sesuatu kenderaan motor menyebabkan atau membenarkan kenderaan motor itu dihentikan di mana-mana jalan dalam apa-apa kedudukan atau apa-apa keadaan atau apa-apa hal keadaan yang mungkin menyebabkan bahaya, galangan atau kesusahan tidak berpatutan kepada pengguna jalan yang lain atau kepada lalu lintas, dia melakukan suatu kesalahan.” Ini bermakna sesiapa yang memberhentikan kenderaan mereka di sebarang jalan raya dengan cara yang berbahaya atau yang menyusahkan pengguna lain boleh dikenakan denda dari RM1,00 hingga RM5,000 atau hukuman penjara tidak melebihi satu tahun atau kedua-duanya sekali. Jika halangan ini melibatkan pegawai awam (pegawai polis, pegawai pengangkutan jalan dsb.), Seksyen 48(2) Akta Pengangkutan Jalan membenarkan pihak berkuasa mengapit (clamp) kenderaan yang menghalang. Peruntukan seterusnya dalam Seksyen 48 memberi maklumat terperinci mengenai kaedah tundaan dan pengapitan kenderaan yang diletak secara tidak sah. Seksyen 48(1) dan (2) adalah khusus untuk sesiapa yang ‘double park’. Jadi apa yang perlu anda buat jika kenderaan anda dihalang oleh kenderaan lain yang ‘double park’? Jadi apa yang perlu anda buat jika kenderaan anda dihalang oleh kenderaan lain yang ‘double park’? Janganlah sekali-kali melanggar kereta yang ‘double park’ kerana anda akan didapati bersalah. Hubungi sahaja majlis perbandaran tempatan (DBKL, MBPJ, dsb.) ataupun polis trafik supaya mereka boleh menunda kenderaan tersebut. Pastinya ada persoalan seperti “Macam mana kalau pihak berkuasa ambil masa yang lama untuk bertindak?” Dalam temu ramah yang sama, Ketua Trafik Kuala Lumpur SAC Mahamad Akhir juga menerangkan yang beliau faham akan keluhan awam, tetapi undang-undang harus ditegakkan. Beliau menambah bahawa orang awam tidak harus bertindak dengan sendiri dan mereka harus membenarkan pihak penguatkuasa menjalankan tugas mereka. Pendapat yang sama diberi oleh seorang anggota polis yang ditemu ramah kami di ASKLEGAL (yang enggan memberi namanya) untuk artikel ini: “Orang ramai ingin hidup dengan selesa, tetapi mereka kadang kala tidak mengendahkan keselesaan orang lain, secara sengaja ataupun tidak. Fenomena ini (double parking) bukannya baru, tetapi telah meningkat berlipat ganda sejak sepuluh tahun kebelakangan ini. Ini mungkin juga merupakan petunjuk yang menandakan masalah yang lebih dan ini harus dibahaskan. Dalam pada itu, orang awam disarankan supaya tidak bertindak mengikut emosi dan seterusnya merosakkan kenderaan yang ‘double park’ tersebut. Sebaliknya, mereka harus bergantung kepada pihak berkuasa untuk mengambil tindakan” – pegawai polis yang ditemu ramah ASKLEGAL Dan, jika anda ’double park’ kenderaan anda, sekurang-kurangnya tinggalkan nombor telefon anda di papan pemuka (dashboard) kereta. Ianya dapat membantu mengurangkan kesengsaraan pemilik kereta yang ingin memandu keluar dari petak tempat letak kenderaan mereka."
"Malaysia tidak mempraktikkan sistem juri sejak tahun 1995 gara-gara seorang ... bomoh? [Artikel asal ditulis dalam Bahasa Inggeris. Click here for English version.] Pastinya kita telah menyaksikan banyak adegan mahkamah yang hebat di filem-filem Hollywood seperti To Kill A Mockingbird, The Wire, Arrested Development, Philadelphia dan Primal Fear. Dan pastinya anda ingat akan 12 panel juri di mahkamah yang terdiri dari orang awam, di mana pihak pembela akan bertungkus lumus meyakinkan mereka yang si tertuduh tidak bersalah, dan selepas diselingi oleh latar belakang musik yang penuh dramatik (dan kadangkala melampau), salah seorang juri tersebut akan mengumumkan yang si tertuduh itu bersalah. Ataupun tidak. Mungkin anda tertanya-tanya jika kita mengamalkan sistem juri ini di mahkamah Malaysia (tanpa musik ya), dan jawapannya ialah mahkamah Malaysia tidak menggunakan sistem juri. Sebaliknya, semua keputusan mahkamah dilakukan oleh hakim kes. Dan, apa yang lebih menarik lagi di sini adalah kita PERNAH menggunakan sistem juri sebelum ia dimansuhkan pada sekitar tahun 90an. Harus kita ingat yang sistem juri tidak digunakan untuk tujuan dramatik. Sistem juri digunakan sebagai satu tanda yang sistem demokrasi juga dipraktikkan di mahkamah dengan membenarkan orang awam melibatkan diri dalam sistem perundangan jenayah supaya si tertuduh dapat dihakimi oleh orang awam yang setaraf dengannya. Samalah seperti rakan karib anda menilai anda. Jadi, kenapa sistem juri tidak lagi digunakan di Malaysia? Ini sebenarnya ada kaitan dengan satu kes sensasi, melibatkan seorang bomoh dan ahli politik.... Kes bunuh Mona Fandey yang sensasi satu ketika dahulu Sebelum sistem juri dihentikan, terdapat banyak perbincangan tentang pemansuhan sistem tersebut. Kes bunuh yang kita akan bincangkan merupakan kes terakhir dimana sistem juri digunakkan…..dan kes ini merupakan faktor utama sistem juri dihentikan. Maznah Ismail, atau lebih dikenali sebagai Mona Fandey, pernah berhajat untuk menjadi penyanyi ternama, tetapi hajatnya tidak begitu tercapai. Namun , dia masih berpeluang untuk menerbitkan satu album yang ditaja sendiri yang berjudul Diana. Selain itu, dia juga merupakan seorang penari balet air di zaman mudanya. Kalau nak tahu, balet air ini lebih kurang sama dengan sukan renang berirama. Mona Fandey kemudian meninggalkan dunia hiburan untuk menjadi seorang bomoh. Tentunya anda semua sedar kerjaya ini juga dikenali sebagai dukun ataupun pawang. Biasanya, bomoh terkait dengan perubatan tradisional, dan ilmu sihir. Di antara pelanggan-pelanggan Mona, terdapat ahli politik dan golongan masyarakat atasan. Mona Fandey juga pernah mendakwa yang suatu ketika dahulu, dia pernah membekalkan tangkal atau azimat kepada beberapa ahli politik dari salah sebuah parti politik yang dikenali umum. Mazlan Idris, seorang ahli politik yang bercita-cita tinggi….merupakan ahli Dewan Undangan Negeri Batu Talam, Pahang. Beliau telah berjumpa dengan Mona Fandey, kerana beliau ingin menggunakan bantuan ghaib untuk meningkatkan kerjaya politiknya. Lantas, Mona bersama-sama dengan suaminya, Mohd Affandi Abdul Rahman dan pembantunya Juraimi Hussin, berjaya memujuk Mazlan untuk mengambil bahagian dalam satu upacara “menunggu wang jatuh dari langit”. Mona Fandey mengarah Mazlan Idris baring diatas lantai dengan matanya tertutup sambil menunggu wang jatuh dari langit. Tetapi yang jatuh bukannya wang, tetapi sebilah kapak. Mazlan Idris kemudiannya dipancung dan badannya dikerat dan sebahagian dari kulitnya disiat. Mayatnya ditemui dipotong kepada 18 bahagian dan ditanam berhampiran rumah Mona Fandey. Sehari selepas pembunuhan itu, Mona Fandey keluar membeli-belah di Kuala Lumpur, dan kemudiannya membeli sebuah Mercedes-Benz serta menampilkan wajah baru. Pihak polis menemui mayat Mazlan pada 2hb Julai 1993, dan sejurus selepas itu, Mona, suaminya, dan Juraimi ditahan polis. Mereka didakwa dan dibicarakan di Mahkamah Tinggi Temerloh oleh seorang hakim dan panel juri seramai 7 orang. Mahkaman Tinggi Temerloh mendapati yang mereka bertiga bersalah dan menjatuhkan hukuman gantung sampai mati. Kes ini kemudiannya dirayu di Mahkamah Persekutuan tetapi rayuan ini ditolak dan hukuman mati disahkan. Lebih-lebih lagi, Lembaga Pengampunan Pahang juga tolak rayuan mereka untuk pengampunan dan akhirnya hukuman mati dilaksanakan ke atas mereka bertiga di Penjara Kajang pada tahun 2001. Perbicaraan kes ini mendapat liputan media yang amat luas di dalam dan luar negara. Ramai pula yang mengenali Mona Fandey sebagai bomoh daripada seorang penyanyi. Faktor kes yang sensasi ini menjadi salah satu sebab utama sistem juri dimansuhkan di Malaysia (Kes ini dibawa ke Mahkamah Tinggi pada tahun 1993 dan sistem juri dimansuhkan pada tahun 1995). Kes yang sensasi amat merbahaya kerana pihak media yang melaporkan kes-kes ini boleh mempengaruhi keputusan pihak juri. Ini boleh membawa kepada keputusan mahkamah yang tidak adil, seperti mana yang boleh dilihat dalam kes Aileen Wuornos di mana pihak media telah memberi laporan yang amat negatif terhadapnya. Pihak pendakwa pula, mengambil kesempatan ini untuk membina kes yang lebih memberat sebelah untuk mereka. Pendedahan media ini juga boleh berlaku sebelum pemilihan juri. Bagaimana sistem juri dijalankan di Malaysia sebelum ia dimansuhkan? Berikut adalah pandangan Hakim terkenal di UK, Lord Denning mengenai sistem juri (yang kita terjemahkan): Dua belas orang yang dipilih secara rawak merupakan satu perwakilan umum orang ramai yang merentasi semua aspek kemanusiaan. Jika panel juri dipilih secara rawak, keputusan mereka boleh dikatakan satu keputusan yang diwakili oleh orang awam. Tambahan pula, bilangan juri yang besar boleh menolak pilihan yang tidak adil, dan ini akan mengekalkan sistem yang demokratik. Di Malaysia, sistem juri hanya digunakan dalam kes yang khusus – iaitu kes yang membabitkan hukuman mati mandatori (seperti kes pengedaran dadah dan kes bunuh). Ini berlainan dari sistem juri di Amerika Syarikat, di mana tertuduh yang didakwa dalam kes yang boleh membawa hukuman penjara lebih dari 6 bulan berhak mendapat perbicaraan yang diadili oleh panel juri. Sistem juri yang ada di Malaysia dulu, biasanya diwakili oleh 7 orang juri. Sesiapa yang berumur lebih dari 21 tahun layak menjadi juri. Pengecualian diberikan kepada mereka yang mengalami sakit mental dan yang kurang upaya (buta, pekak, dsb.). Sekiranya anda dipilih untuk menjadi juri, anda diwajibkan untuk menjalankan tugas ini, melainkan anda mempunyai alasan yang munasabah. Tapi apa kata jika anda rasa yang anda tidak mempunyai masa untuk MENJALANKAN KEWAJIBAN ANDA SEBAGAI SEORANG RAKYAT MALAYSIA sebagai ahli juri? Sebenarnya tiada masalah…….cuma bersedialah untuk didakwa di bawah Seksyen 174 Kanun Keseksaan (tiada terjemahan Bahasa Malaysia): “Barangsiapa, yang di bawah perintah undang-undang untuk hadir, secara persendirian atau melalui wakil, pada tempat dan masa yang ditetapkan untuk saman, notis, perintah atau deklarasi, tindakan dari mana-mana penjawat awam, mengingkari arahan untuk menghadirkan diri pada tempat dan masa yang ditetapkan, atau meninggalkan kawasan di mana dia perlu hadir sebelum tempoh di mana dia perlu berada di kawasan tersebut, boleh dihukum...” Sesiapa yang didapati bersalah, boleh didenda sebanyak RM2,000 ataupun dipenjara selama 6 bulan maksimum, ataupun kedua-duanya sekali. Jika kita lihat pada dasarnya, juri harus menilai kesemua bukti dan fakta kes yang dipersembahkan...selepas itu, hakim akan mengarahkan juri untuk memutuskan sama ada yang tertuduh bersalah atau tidak. Untuk mencapai suatu keputusan, panel juri ini akan berbincang perihal ini dalam kamar bicara (bukan kamar tidur ya!). Adakah anda berpendapat bahawa ia lebih baik untuk orang awam (seperti saya dan kamu), untuk memutuskan jika seseorang itu bersalah atau tidak? Ataupun anda rasa ia lebih baik untuk seorang hakim (yang walaupun berpengalaman, mungkin tidak memahami cara hidup orang awam...sebab biasanya hakim orang atas)? Sistem juri ini ada kelemahannya Satu masalah utama dengan sistem juri ini adalah pendedahan panel juri kepada liputan media, terutamanya jika ia membabitkan kes berprofil tinggi. Ini boleh menyebabkan perbicaraan yang tidak adil kerana panel juri mungkin sudah pun terpengaruh dengan liputan media, dan ini mungkin juga akan menjejaskan penilaian mereka. John Maude QC (Hakim British) pernah meluahkan pandangan beliau tentang sistem juri di akhbar Daily Telegraph: Sistem juri mengambil masa yang panjang dan menelan belanja yang tinggi Panel juri tidak arif tentang undang-undang secara profesional dan kurang berpengalaman dalam sistem perundangan jenayah Panel juri mungkin khuatir untuk memikul tanggungjawab ke atas hukuman mati yang mungkin akan dijatuhkan ke atas tertuduh Sesetengah pihak yang dipilih mungkin tidak mahu menjadi juri kerana ia adalah satu tugasan yang wajib dilakukan Sesetengah juri mungkin akan memberi keputusan dengan tergesa-gesa dengan alasan mahu mempercepatkan proses Anda boleh membaca tentangnya dengan lebih lanjut di sini. Sekitar tahun 1994-1995, Kerajaan Malaysia telah merenungkan idea memansuhkan juri…..dan dalam proses tersebut telah mengemukan beberapa alasan. Salah satu alasan, adalah panel juri tidak arif tentang sistem perundangan dan mudah terpengaruh dengan emosi dan pandangan umum. Parlimen juga telah membincangkan untuk memberhentikan sistem juri ini, dan Kementerian Kehakiman telah memetik beberapa faktor daripada hujahan Parlimen….yang akhirnya membawa kepada sistem juri dihentikan secara muktamad. Menurut Menteri Kehakiman faktor-faktor tersebut adalah: panel juri mudah yakin dengan hujah pihak pembela, juri berkeberatan untuk hadir melaksanakan tanggungjawab menjadi juri, dan kebanyakan juri tidak mahu memikul tanggungjawab memberi hukuman mati kepada pesalah. Kes Stephen Young merupakan satu contoh bagaimana sistem juri boleh membawa kesan buruk. Stephen Young disabit bersalah membunuh pasangan yang baru berkahwin di Wadhurst, East Sussex, England. Dia dihukum penjara seumur hidup di bawah perbicaraan menggunakan sistem juri. Pihak juri tersebut, telah menggunakan papan ouija (permainan papan datar) untuk membuat keputusan. Setelah mahkamah diberitahu tentang ini, mereka mengarah untuk melakukan satu perbicaraan semula. Bukan Malaysia sahaja yang memansuhkan sistem juri. Boleh dikatakan bahawa tiada sistem yang sempurna – ia bergantung kepada apa yang terbaik untuk negara dan sistem perundangan. Sesetengah negara di Asia masih menggunakan sistem juri. Hong Kong yang merupakan bekas jajahan British mempraktikkan sistem perundangan yang sama dengan British, dan menggunakan sistem juri. Jepun pula mengimplementasi sistem ini pada tahun 2009. Namun begitu, sistem juri dimansuhkan di India dan Singapura (dan juga Malaysia). Ada juga perbincangan berlaku untuk mengembalikan sistem juri di Malaysia pada tahun 2012, tetapi tidak kesampaian. Setakat ini, pemansuhan sistem juri masih lagi berkuat kuasa."
"If the PDRM calls you to the station, must you really go? Generally, you equate seeing policemen as something bad happening – either you’ve been in an accident, a victim of a crime, or you were caught doing something you weren’t supposed to do. One time, the police decided to call you in to record your statement because you witnessed an accident happening but you couldn’t fit them in your schedule so you decided to blow them off. You even toss away the formal letter that they sent you. As you are relaxing at home, you hear a knock on your door and...it’s the police with a warrant for your arrest? You are flabbergasted and protest your innocence but they tell you that they are arresting you because you failed to show up to provide your statement when requested. But wait. Arrests can only be made on those suspected of committing a crime; not failing to show up...right? [READ MORE: How do I know if I'm getting arrested by the PDRM?] [READ MORE: What are your rights if you have been arrested by the PDRM?] Actually, the police can ‘compel’ you to come to the station To understand what we mean by compel, we have to make reference to the Criminal Procedure Code (“CPC”). Section 111 states the following: “(1) A police officer making an investigation under this Chapter may by order in writing require the attendance before himself of any person who from the information given or otherwise appears to be acquainted with the circumstances of the case, and that person shall attend as so required. (2) If any such person refuses to attend as so required that police officer may report such refusal to a Magistrate who may thereupon in his discretion issue a warrant to secure the attendance of that person as required by such order.” To break it down, section 111 is the section that gives the power to the police to call you in if you are a witness for anything that they are required to investigate and if you refuse to attend, the police can report you to the Magistrate who may then issue a warrant. This “call” would typically be done in writing (which also helps you differentiate from scammers and the actual police). Generally speaking, when the police officer uses section 111, they are issuing a summon for you to come to the police station. As explained in the case of Karpal Singh v PP, a failure to respond to a summon means that a warrant can be issued for your arrest (this is also codified in section 111(2)). This means that section 111 actually applies in the scenario that we gave you in the introduction; you must show up when the police calls you in and any failure to do so, can result in a warrant for your arrest. The next question you may have is, what can the police do when you show up? You can be examined by the police A section that goes hand in hand with section 111 is section 112 because after giving the police the power to summon you to the station, section 112 empowers them to question you. In addition to empowering the police to question witnesses, section 112 is also where you would find your privilege against self-incrimination. In other words, if you are a hardcore fan of criminal television, you may be more familiar with this phrase as, “you have the right to remain silent and anything you say can and will be used against you”. In part, section 112 reads: “(1) A police officer making a police investigation under this Chapter may examine orally any person supposed to be acquainted with the facts and circumstances of the case and shall reduce into writing any statement made by the person so examined. (2) Such person shall be bound to answer all questions relating to the case put to him by that officer: Provided that such person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture. (3) A person making a statement under this section shall be legally bound to state the truth, whether or not such statement is made wholly or partly in answer to questions.” [emphasis added] In essence, the police has the power to examine you as a witness and you are bound to answer the questions truthfully but you may exercise your right to remain silent if your answer may actually implicate you. At the end of the day, it’s as simple as... If the PDRM calls, you go If the police calls you in, it would be best to respond. Besides, your information may actually be a valuable part of the investigation and help the police nab that serial underwear thief, who knows. On a more serious note, be wary of telephone calls claiming to be from the PDRM; it may actually be a scammer trying out the Macau scam on you (read more here). Always verify who is calling, never divulge personal information over the phone, and ask an in-person meet. TLDR; if the police calls you to the station, you go. If the police starts giving out personal details online, you ask for their name, ID number, and station then drive there to verify if the call is a genuine one. [READ MORE: If you have been arrested by the PDRM, are you guilty?]"
"If the religious authorities knock on your door for khalwat, must you let them in? NOTE: In an earlier version of this article, we made an error in not realizing that the definition of “seizable offence” in Syariah and Federal law are different, leading to a wrong conclusion. We apologize for the mistake and this has been corrected in the current version. Special thanks to Qamar Ali for pointing this out. In our last article, we discussed what jurisdiction the religious authorities have over Malaysians when it comes to khalwat. As a summary, according to the law, the religious authorities would only have authority over Muslims and they have no jurisdiction over non-Muslims. [READ MORE: Can a non-Muslim be guilty of khalwat in Malaysia?] In this article, we will be discussing on the enforcement-related parts Syariah law, with khalwat as a primary example of a Syariah offence (or “crime”). Because, to investigate or make arrests for khalwat offences, the religious authorities would need to enter into private places to do so. Just like in the movies, the police would have to follow the law and get a warrant to enter into people’s houses….the same procedures apply to the religious authorities. There are laws governing how religious authorities in Malaysia conduct raids – but before we get to that, we will briefly explain what this khalwat law is all about to give you the whole picture. You can skip the point below if you aren’t keen on the background info. Each state has their own Syariah laws We’ve covered this in greater detail within our previous article, but here’s a quick introduction/refresher. Two things you should know – first, each state has their own criminal syariah offences legislation – though all of them are worded very similarly. So this means khalwat is a crime governed by individual states (ie it’s a “state crime”). In other words, Johor would have the Syariah Criminal Offences (Johor) Enactment, Selangor would have the Syariah Criminal Offences (Selangor) Enactment, and so on. To explain the legal definition of khalwat, we will refer to Selangor syariah law as a reference throughout the article (because we can’t show you all the 14 laws). The Syariah Criminal Offences (Selangor) Enactment 1995 states (in part): “(1) Any - (a) man who is found together with one or more women, not being his wife or wives or mahram; or (b) woman who is found with one or more men, not being her husband or mahram, in any secluded place or in a house or room under circumstances which may give rise to suspicion that they are engaged in an immoral act shall be guilty of an offence... From this, we can see that 4 things must exist for there to be a khalwat offence. We will lay down briefly these 4 things for you, but if you want to get more depth please refer to our last article. So, here are the four things: A guy and girl must be involved They must be caught in a secluded place They must not be husband and wife, or family members They must be alone under suspicious circumstances Anyway, back to the main question on raids by the religious authorities…. They don’t need a warrant for khalwat Before we go on further, it best to understand this – khalwat is the offence and the raids are the procedural mechanism to enforce syariah law. This is because the offence of khalwat is laid out in the Syariah Criminal Offences (Selangor) Enactment, but the procedure to raid a house to catch someone for a syariah offence is laid out in Section 11 of the Syariah Criminal Procedure (State of Selangor) Enactment 2003. When it comes to raids, Section 11 provides the following powers to religious authorities: If they have an arrest warrant, they can lawfully enter a house to catch that person If they don’t have an arrest warrant, they can only lawfully enter the house to arrest someone that has committed a seizable offence So, for point 1 it basically means that if the religious authorities get an arrest warrant from a judge, they can lawfully enter into a house to perform a raid. However for seizable offences, they do not need to get an arrest warrant from a judge to lawfully perform a raid. It’s important to note that a seizable offence in Syariah is different from federal (“regular”) law. In regular law, Section 2 of the Criminal Procedure Code defines a seizable offence as a crime that carries an imprisonment of 3 years. In Selangor Syariah law, Section 2 of the Syariah Criminal Procedure (State of Selangor) Enactment 2003, seizable offences are defined as those which carry a punishment of at least 1 year imprisonment according to a Selangor Government Gazette issued in 2003. In the context of khalwat, this means the religious authorities CAN arrest an offender without a warrant, and also perform the neccessary raids to affect the arrest, since khalwat carries a maximum prison term of two years – making it a seizable offence. Section 18 of the Syariah Criminal Procedure (State of Selangor) Enactment 2003 also outlines other exceptions which allow the religious authorities to make an arrest without a warrant, such as if the crime is happening in front of them, or if there’s already a warrant out for someone’s arrest. Again, these may differ from state to state. We want to point out that while private residences can be pretty straightforward, there’s a pretty interesting tidbit when it comes to hotels The Malaysian Association of Hotels stated that hotels have an obligation to comply with the directions of religious authorities, in a sense where they actually would have to bring the religious officers to the room they want to raid. However the hotel cannot show the religious authorities the name list of those staying in the hotel, because that information is protected by the Personal Data Protection Act 2010. Get a syariah lawyer if you feel your rights are infringed February last year, a married couple sued JAKIM for a khalwat raid that resulted in injuries and wrongful detention despite showing proof they were married. Just like with regular non-religious enforcement, there may be times when mistakes are made and/or legal procedures aren’t followed – which leads to you being accused of something you didn’t do, or have your rights infringed upon. Whichever the situation, just like in “regular” law, you can get a Syariah lawyer to advise or argue the case for you. The Jabatan Penghakiman Syariah Malaysia provides a list of Syariah lawyers by state through their E-syariah portal. Note: You can just select the state to view the full list"
"Can a non-Muslim get in trouble for khalwat in Malaysia? Even if we don’t know the religious or legal technicalities behind it, we’d know from the occasional news reports that Khalwat involves unmarried Muslim couples getting in trouble with the religious authorities after being caught in compromising situations. A recent example of this is the report of a couple in Kedah caught for khalwat when the local religious authorities conducted raids throughout the state. While we’ll go through the legal technicalities of what Khalwat actually is later in the article, we’ll first answer a question that we get asked quite a fair bit – if an unmarried Muslim and a non-Muslim were caught in a hotel room during a raid, can the non-Muslim be caught for khalwat? And the answer to that is... No, a non-muslim cannot get caught for khalwat Yup. Basically, a non-Muslim cannot be caught for khalwat, even if the non-muslim was caught together with a muslim. Why is this the case? This is because khalwat falls under the jurisdiction of Syariah matters – and Syariah matters can only be dealt with in the Syariah court – and the Syariah courts only only have jurisdiction over Muslims as stated in the notes of our Federal Constitution: Notes (List II – State List) of the 9th Schedule of the Federal Constitution (in part): “...the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam...” You can see this being put to practice in Syariah court cases. For example, in the case of Syarie Prosecutor v Muhaizad bin Ahmad Mustapha (2010), a Muslim man and a Christian woman were caught by religious authorities on suspicion of khalwat. In the end, only the Muslim person was brought to court and convicted. However, there have also been rare situations where non-Muslims were wrongly brought to court for Khalwat. For example, a Christian woman from Indonesia was found guilty of khalwat by the Penang Syariah Court. She was later found not guilty when she appealed against the decision, as it turned out that the religious authorities mistakenly thought she was Muslim. So in essence, if you are a non-Muslim, you cannot get into legal trouble with the religious authorities for khalwat. But if you’re wondering what Khalwat actually is, we’ve dedicated the rest of the article to explain it; starting with... Each state has their own khalwat laws For the sake of general understanding, it can be said that Islamic laws in Malaysia are governed and enforced by state. This means that these laws (known as enactments) are created by State Assemblies (Dewan Undangan Negeri), and not the Federal Parliament. [READ MORE: Where do the Syariah courts get their power from?] The difference between federal laws and state laws are as such: Federal laws apply throughout Malaysia – For example, if you committed murder (a federal crime) in Johor and ran off to Perlis, the police can arrest you in Perlis and charge you in any Malaysian High Court Syariah laws are applied within its respective state – For example, if the crime of khalwat is committed in Selangor, the offender(s) can only be tried in a Selangor Syariah Court. To clarify, there aren’t exactly 14 DIFFERENT khalwat laws. It’s just that each state has their own criminal syariah offences legislation...but all of them are worded very similarly. So Johor would have the Syariah Criminal Offences (Johor) Enactment, Selangor would have the Syariah Criminal Offences (Selangor) Enactment, and so on. But what is khalwat? When it comes to criminal offences, it’s kinda like identifying a “pizza”. In order for something to be recognized as a pizza, you need the dough, sauce, and toppings. You miss out on one of the ingredients, you don’t have a pizza. It’s the same thing with khalwat, there would be a few “ingredients” that are needed to complete the offence, and if one “ingredient” is missing…..you don’t have the offence of khalwat. So to find out the “ingredients” of khalwat...we’ll use the Selangor Syariah Criminal Offences (Selangor) Enactment 1995 as an example (since we’re sure you won’t want to read all 14 of them). This enactment states: “(1) Any - (a) man who is found together with one or more women, not being his wife or wives or mahram; or (b) woman who is found with one or more men, not being her husband or mahram, in any secluded place or in a house or room under circumstances which may give rise to suspicion that they are engaged in an immoral act shall be guilty of an offence and shall be liable on conviction to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both.” From this, we can see there are basically 4 “ingredients” to this crime. We will discuss each one below: Ingredient one: At least two persons of different genders must be involved. Let’s see how this works in the three scenarios below Scenario 1 Two men sitting in their dorm room doing an assignment. – NOT khalwat Scenario 2 Two women hanging out in their house alone, getting their nails done. – NOT khalwat Scenario 3 A man and a woman sitting on a couch in an apartment, just watching Netflix – POSSIBLY khalwat In essence, those who would have to worry about khalwat are couples or any two people or more people of different genders. But as you read on, you will find out that just because a girl and guy are together it isn’t always khalwat. The ingredients must be complete. Ingredient two: The male and female person must be caught in a secluded place The second ingredient requires a couple to have some form of privacy. The law requires that the man and woman must have been alone in a secluded place. This means a couple technically can’t be caught committing khalwat if they are walking in a crowded mall, but a couple who were caught in a house or hotel room alone is at risk of being guilty for committing khalwat. Ingredient three: The man and woman must not be husband and wife, or have a close family connection. So, for the first ingredient we learnt that a man and a woman MUST be involved to form the offence of khalwat. This however, may bring in complications as spouses and family members could be at risk of getting into trouble with the authorities. This is where the third ingredient comes in. According to the enactment, it’s not khalwat if the other person is a spouse or someone with a mahram relationship. For reference, mahram is – simply put – a list of family relationships recognized in Islam. To give you a few examples to help you figure out how it would work Husband and wife = NOT khalwat Brother and sister = NOT khalwat Boyfriend and girlfriend = POSSIBLY khalwat You and a friend of the opposite gender = POSSIBLY khalwat Ingredient four: You must get caught under suspicious circumstances. To complete our khalwat pizza, the fourth ingredient requires a couple to be caught under suspicious circumstances. What counts as ‘suspicious circumstances’ will be determined on a case-to-case basis. For example, Boyfriend and girlfriend renting a house, and living together as a live-in couple. – VERY LIKELY khalwat A man and woman alone in a house, having coffee over a business discussion. – UNLIKELY khalwat This is to prevent two people who are together for innocent (non-sexual) purposes from getting into trouble because, at the end of the day, khalwat exists to prevent the sin of zina (pre-marital sex or adultery) from happening. You may need to get a Syariah lawyer Just like with regular non-religious enforcement, there may be times when mistakes are made and/or legal procedures aren’t followed – which leads to you being accused of something you didn’t do, or have your rights infringed upon. Whichever the situation, just like in “regular” law, you can get a Syariah lawyer to advise or argue the case for you. The Jabatan Penghakiman Syariah Malaysia provides a list of Syariah lawyers by state through their E-syariah portal. Note: You can just select the state to view the full list So, another question you might have is, what do you do if suddenly you get a knock on your door and you hear “Jabatan agama, tolong buka pintu”? Well we would love to give you the answer here, but unfortunately the legalities of the religious authority’s right to enter into private property requires a bit more discussion which we’ve covered in the article below: [READ MORE: If the religious authorities knock on your door, must you let them in?]"
"5 perkara asas yang perlu anda tahu apabila menandatangani kontrak Sebelum masuk kerja, kita kena tandatangan kontrak pekerjaan. Beli kereta baru? Tandatangan dulu kontrak sewa beli. Kalau beli rumah pun, kena tandatangan perjanjian pinjaman perumahan. Sedar atau tidak, menandatangani kontrak itu semudah menandai kotak “Saya Setuju” ketika bersetuju dengan perjanjian atas talian (online). Ada kala, namanya berlainan seperti “kontrak”, “persetujuan” atau “perjanjian bersama”, tetapi di Malaysia ia semua dikawal di bawah Akta Kontrak 1950. Tetapi untuk kontrak atas kertas, kita kadangkala diarah untuk membuat benda-benda yang tak masuk akal, seperti menandatangani setiap muka surat untuk setiap salinan kontrak yang sama. Buat sakit tangan je. Ingat pen murah ke? Kita sentiasa buat benda-benda kecil yang kita tak faham ketika menandatangani kontrak, namun benda-benda kecil ini ternyata sangat penting untuk memastikan kesahihan kontrak tersebut. Sebagai permulaan, mari kita lihat salah satu asas bagaimana kontrak berfungsi..... 1. INGAT tandatangan! (dan catat tarikhnya) Dahlah namanya “tandatangan kontrak” tapi percayakah anda ada kalangan yang terlupa menandatangani kontrak mereka? Namun begitu, walaupun anda terlupa untuk menandatangani kontrak, kontrak tersebut masih boleh berkuatkuasa. [BACAAN LANJUT – Boleh tak saya saman seseorang yang berjanji untuk mengahwini saya (tetapi gagal)?] Kalau anda nak tahu, kontrak sebenarnya tidak perlu ditandatangan untuk menjadikannya sah! Hanya dengan perbualan di kedai mamak, anda dah boleh memeterai kontrak yang sah di sisi undang-undang. Tanpa berbincang panjang mengenai istilah undang-undangnya: kontrak adalah satu set cadangan di mana dua individu boleh berunding sehingga bersetuju dengannya. Untuk membuat satu cadangan, kedua-dua pihak harus menawarkan sesuatu untuk satu sama lain: Akta Kontrak 1950 – Seksyen 2(a) “apabila seseorang menyatakan kesediaannya kepada seseorang yang lain untuk melakukan atau menahan diri daripada melakukan sesuatu, dengan maksud atau memperoleh persetujuan orang itu untuk berbuat sesuatu atau menahan diri daripada berbuat sesuatu itu, maka bolehlah dikatakan bahawa orang itu membuat cadangan.” Kita selalu memilih untuk menandatangani kontrak daripada membuat persetujuan lisan kerana persetujuan lisan tidak memberikan kita apa-apa jaminan, dan ianya sukar untuk membuktikan kata-kata seseorang tanpa merakamkannya dalam apa jua bentuk. Kaedah yang lebih mudah untuk membuktikan kewujudan kontrak ialah dengan kedua-dua pihak menulis dan menandatangan di atas kertas – ini adalah sesuatu yang sering kita lakukan sehingga kita tidak sedar kenapa kita berbuat demikian. Kita juga sering mencatat tarikh bila kita menandatangani kontrak, selalunya di tepi atau bawah tandatangan kita. Tarikh merupakan butir penting dalam kontrak, terutamanya jika kontrak tersebut sensitif dari segi masa dan anda memerlukan tarikh yang tepat untuk permulaan kontrak. Sebagai contoh, jika anda menyewa rumah dari seseorang, anda perlu mencatat tarikh di dalam kontrak. Kalau tak, siapa tahu bila anda mula menyewa rumah tersebut - 15hb Mei 2018 atau 15hb Mei 2015? Tiba-tiba pula anda boleh dituduh tidak membayar sewa bulanan selama tiga tahun sebab tiada bukti bila anda mula menyewa rumah. Mungkin ini tidak akan berlalu kepada anda, tapi bayangkan jika anda membuat pinjaman kewangan pada bulan Mac, tetapi jika anda gagal mencatat tarikh permulaan pinjaman tersebut, anda mungkin disalahsangka membuat pinjaman pada bulan Februari dan sudah terlewat sebulan untuk bayaran bulanan. Jadi sila pastikan anda tandatangan dan catat tarikhnya dalam kontrak. Sesetengah kontrak ada menyatakan tarikh kuatkuasa di dalamnya, di mana ia bermakna itulah tarikh bermulanya kontrak tersebut, tetapi tiada ruginya kalao anda masih mencatat tarikh selepas menandatangan. 2.Jangan tandatangan sebarang draf kontrak Kadang kala, anda mungkin memerlukan kontrak yang ditulis khas kerana kontrak “standard” yang sedia ada tidak dapat menunaikan keperluan anda. Dalam situasi ini, peguam anda atau peguam rakan niaga akan menulis draf kontrak, di mana ini akan dikaji dan disemak sebelum ditandatangani kedua-dua pihak. Jika anda belum memuktamadkan kontrak, jagan sekali menurunkan tandatangan anda pada sebarang bentuk draf kontrak yang anda hantar atau terima. Jika anda berbuat demikian, anda mungkin akan menghadapi masalah jika ingin membuat pembetulan kontrak, kecuali jika anda sudah mencapai persetujuan dengan rakan niaga. Seksyen 4(2) Akta Kontrak 1950 menyatakan bahawa: Komunikasi penerimaan adalah lengkap:- (a) - terhadap pencadang, bila komunikasi penerimaan itu telah dimasukkan ke dalam perjalanan pengiriman kepadanya, di mana ianya berada di luar kuasa penerima. (b) - terhadap penerima, bila komunikasi penerimaan itu telah sampai kepada pengetahuan pencadang. Ini bermakna bahawa: Jika anda menandatangani sesuatu kontrak dan menghantarnya kepada rakan niaga, kontrak tersebut akan menjadi sah sejurus selepas pihak itu menandatanganinya. Jika anda menerima sesuatu kontrak dan menandatanganinya, kontrak tersebut akan menjadi sah jika pihak yang satu lagi mendapat tahu bahawa anda sudah menandatanganinya. Bergantung kepada cara anda berkomunikasi, anda mungkin tidak akan menghadapi apa-apa isu jika anda menandatangani draf kontrak kerana pihak satu lagi tidak akan menandatanganinya. Tetapi adalah lebih baik jika draf kontrak tidak ditandatangan langsung kerana katakanlah anda sepatutnya perlu membayar RM10,000 tetapi kesilapan berlaku di mana draf mengatakan anda perlu membayar RM100,000 dan kedua-dua pihak telah menandatangani draf kontrak tersebut, maka banyak masalah mungkin dihadapi. Harus diingati bahawa anda masih lagi boleh membatalkan draf kontrak dengan membuat dan menandatangani kontrak baru – tetapi ianya bergantung kepada setakat mana pihak yang satu lagi boleh dipercayai, jadi adalah lebih baik anda pastikan anda tidak terperangkap dalam situasi ini. 3.Pastikan anda baca semua lampiran Sudah tentu semua orang pernah menandatangani kontrak atas talian (online). Salah satu contohnya adalah terma dan syarat perkhidmatan Apple – kebanyakan dari kita sudah tentu tidak membacanya dan terus menekan “Saya Setuju” (“I Agree”). Mungkin sebab kontrak tu terlampau panjang, tetapi kebanyakannya sebab kita tak faham pun isi kandungannya! [BACAAN LANJUT – Apa akan terjadi jika anda menandatangani kontrak tanpa membacanya di Malaysia?] [BACAAN LANJUT – Bagaimana untuk menempuh cabaran membaca kontrak sepanjang 50 muka surat?] Apabila anda menandatangani kontrak yang melibatkan penerimaan perkhidmatan, ia selalunya akan melibatkan “Dasar Privasi” (“Privacy Policy”) – di mana syarikat terbabit akan menggunakan data persendirian anda dan melindungi hak persendirian anda, ataupun menetapkan “Terma dan Syarat” (“Terms and Conditions”), lebih kurang seperti peraturan tambahan untuk kontrak anda. Lampiran yang berserta terikat dengan kontrak anda, tidak kira sama ada anda membacanya atau tidak. Jadi adalah lebih baik jika anda faham akan semua kandungannya. Alasan “saya tak baca pun, jadi tiada kaitan dengan saya” tidak akan diterima di mahkamah kerana selagi kesemua dokumen ini diberi kepada anda, anda dianggap telah membacanya. Lampiran ini mungkin diserta berasing kepada anda oleh rakan niaga untuk rujukan, tetapi ia juga boleh diberi sebagai pautan (link), seperti mana yang dilakukan untuk kontrak atas talian (online) – jadi jangan terpedaya dengan kontrak yang nampak ringkas di internet. Pastikan anda faham kesan dari segi undang-undang dan praktikal dalam kontrak anda dan jangan setakat bergantung dengan apa diterangkan oleh pengedar dokumen (bukannya sebab mereka nak tipu anda tetapi mungkin mereka salah, sebab mereka sendiri pun tak faham!). Simpan satu salinan lampiran yang disertakan sebagai rujukan. Jika ada sebarang perselisihan atau anda ada pertanyaan mengenai kontrak anda, anda tahu di mana anda boleh rujuk untuk mengetahui hak dan tanggungjawab anda dan rakan niaga. 4. Sentiasa minta satu salinan kontrak Ada sebab praktikal mengapa anda perlu meminta salinan kontrak: anda perlu tahu apa yang telah anda tandatangani supaya anda ada rekod hak dan tanggungjawab anda dalam kontrak. Bagaimana anda melaksanakan tanggungjawab yang tidak diketahui? Tentu nampak mengarut jika anda terpaksa menghafal kesemua kandungan kontrak juga! Jika anda tidak diberi satu salinan kontrak, maka anda perlu memintanya kerana dari segi undang-undang, rakan niaga anda tidak diwajibkan memberi salinan kepada anda. Mungkin anda mempercayai mereka, tetapi mintalah satu salinan sebagai langkah berjaga-jaga. Jika hanya satu pihak memiliki kontrak, ada potensi penipuan boleh berlaku. Sebagai contoh, pihak yang tidak jujur mungkin boleh menukar terma kontrak tanpa memberitahu anda, ataupun merangka kontrak yang berbeza dan menampilkan muka surat di mana anda telah tandatangani pada kontrak baru tersebut. Jika perselisihan berlaku dan anda tidak memiliki salinan kontrak, anda tiada bukti untuk mengesahkan yang kontrak yang mana tulen. Jika anda perlukan bukti apabila berlaku perselisihan mengenai kontrak, anda perlu memastikan bahawa kontrak anda adalah yang asli ataupun salinan yang disahkan. Jika kontrak anda adalah salinan “asli”, ini bermakna anda menerima salah satu dari dua salinan yang telah ditandatangani. Ini untuk menepati keperluan yang digariskan dalam Akta Keterangan 1950 (Seksyen 61-65), yang kita tidak dapat membincangkan secara terperinci di sini. 5.Tandatangan semua muka surat dalam kontrak Agak leceh untuk kita meneliti setiap muka surat kontrak, tetapi ianya disyorkan oleh peguam atas beberapa sebab: Anda perlu pastikan yang anda menerima kesemua muka surat kontrak. Rakan niaga menerima pengiktirafan yang anda telah membaca dan memahami kontrak. Jika ada barisan atau muka tambahan yang ditambah tanpa kebenaran anda, ia tidak akan mengandungi tandatangan anda, dan anda boleh tunjukkan bahawa anda tidak bersetuju kepada istilah tersebut Tandatangan dalam semua muka surat kontrak adalah amat penting terutamanya jika anda tidak menerima salinan kontrak – seperti dalam kes kontrak yang ditandatangani dengan pembekal khidmat (service provider) internet dan pelan internet telefon bimbit. Tetapi jangan bimbang, anda akan dapat perlindungan di bawah Akta Perlindungan Pengguna 1999 yang menjaga isu berkaitan kontrak yang tidak adil. Rumusannya, kontrak yang tidak adil adalah kontrak yang memberi tekanan, atau yang membebaskan pengedar dari tanggungjawab besar, dan apa sahaja yang terlalu menyusahkan anda. Perlindungan ini wujud kerana kontrak perkhidmatan selalunya dalam bentuk standard dan anda tidak dapat berunding mengenainya. Ia kadang kala rumit dan anda perlu mendapatkan penjelasan dari jurujual (di mana maklumatnya mungkin kurang tepat), dan pembekal khidmat (service provider) mempunyai hak untuk menukar terma dan syarat bila-bila masa tanpa memberitahu anda. Contohnya dasar “no refund” yang kurang adil dan menetapkan terma yang mengarut – kebanyakannya adalah tidak sah di sisi undang-undang. [BACAAN LANJUT – 5 cara anda (mungkin) boleh mendapat wang “refund”] Sentiasa baca dan memahami kontrak anda Apabila anda menandatangani kontrak, lebih baik untuk faham kontrak tu yang akan ditandatangani, dan senario dalam setiap kemungkinan. Mungkin anda terfikir untuk tidak membaca sesetengah bahagian dan terus bersetuju dengan perjanjian, tetapi kontrak menggariskan semua hak undang-undang dan tanggungjawab yang perlu anda tahu jika perselisihan berlaku. Ambil masa untuk membaca dan memahami setiap bahagian kontrak – sesetengah kontrak mungkin mengandungi terma yang mengambil kesempatan terhadap anda, di mana anda boleh berbincang mengenainya dan mungkin juga tidak bersetuju untuk menandatangani bahagian tersebut sehingga ia digubal. Minta bantuan peguam jika perlu, terutamanya jika ia melibatkan kontrak penting seperti pembelian hartanah dan perniagaan."
"If my landlord sells the house I am renting in Malaysia, what happens to me? Buying a house in this current economical climate is pretty darn difficult so most of us have resorted to renting a place. However, renting comes with its own set of problems as well such as finding that perfect house that has a great landlord and facilities. As luck would have had it, you scored a perfect house and have been staying there for the past 6 years. A couple months after renewing your lease for another 2 years, your landlord suddenly tells you that you have to scoot because he sold the house to someone new. The main question is – Can your landlord just kick you out? It all depends on this one magical thing – what your contract says. A properly drafted contract would usually contain the obligations and promises that both the landlord and tenant make to each and other would have to fulfil during the term of the tenancy. Specifically to prevent your landlord from kicking you out, you would have to rely on the clauses that provide that your landlord is not supposed to sell the house during the term of the tenancy or that any sale can only happen subject to you continuing to rent the house with the terms that you and your landlord agreed on. In addition to these clauses, the contract would also contain an early termination clause that could provide a guideline for how you and your landlord are supposed to act if the rental comes to an end earlier than agreed. To recognise how these three different clauses look like, here are some examples as follows: “In the event the Landlord shall be desirous of selling the Said Premises prior to the expiration of the term hereby created, the Landlord hereby covenants, undertakes and agrees that such sale shall be subject to this tenancy and shall procure the Purchaser to continue with the terms and conditions of this Agreement in lieu of the Landlord.” “In the event that this Agreement is terminated before the expiration of the Term of this Agreement by the Landlord due to whatsoever reason non attributable to the Tenant which shall include but not limited to the Landlord early termination of the Tenancy Agreement, the Landlord hereby undertakes and agrees to refund or cause to refund to the Tenant within seven (7) days thereof the Security Deposit and any sum already paid to the Landlord pursuant to this Agreement, and further pay a sum equivalent to the Security Deposit to the Tenant as agreed liquidated damages, without prejudice to any right of action or remedy of the Tenant in respect of any breach of the Landlord pursuant to this Agreement, failing which the Landlord shall pay interest at the rate of eight (8) % per annum on such sums which has not been duly paid/refunded to the Tenant, calculated on a daily basis, and thereafter, this Agreement shall be null and void and neither party shall have further claim against the other, save for antecedent breaches” If these clauses are in your contract, then you don’t have to worry about anything because if your landlord chooses to evict you, you would be entitled to sue for damages. Alternatively, if everyone involved in the transaction agrees, you can sign what is known as a deed of novation. This agreement would be signed by you (as the tenant), the landlord, and the person who bought the house. In essence, what the novation does is to transfer your landlord’s rights and liabilities under the rental agreement over to his buyer. Basically, this turns the buyer into your new landlord and he would be the guy you look for to deal with rental issues. Essentially, with a well written rental agreement, you are pretty covered on all ends. However, things get a little iffy if the contract is not well written or worse, when there is none at all. No contract = tough times While contracts can be unwritten, things get a bit confusing when the terms are not written down clearly. Your rights would not be clearly spelt out and the arguments in court will usually devolve into a “he say, she say” situation. However, this does not mean that you would be left with no avail. The key in situations where a contract doesn’t exist is to convince the court that you were promised certain rights under the contract and hope that the judge sees fit to give you damages if your landlord decides to terminate your tenancy early. If you are unable to convince the court that you have a contract to reside in the house for a certain time, then welp. You may very well be left without a solution. If you have a contract but the terms are not worded clearly, then the courts may resolve any ambiguity by relying on the contra proferentum rule. This rule basically allows the judges to interpret any ambiguously worded clause against the maker of the clause. For example, if your landlord is the person who prepared the contract and the clauses are ambiguous, the courts will apply the interpretation that favours you over your landlord. To answer the question in the title of this article, the long and short of it is… Eviction is entirely possible If your landlord decides to sell and boot you from the house as opposed to signing a deed of novation, then you can be evicted despite what your contract says. Though technically speaking, it is not strictly an eviction but more a termination of the contract. However, with that being said, like any other breach of a contractual term, you wouldn’t be left high and dry. Depending on the circumstances, you would most probably be able to recover your deposit and a lil’ extra to compensate you for your troubles. If you can’t come to an agreement with your landlord, you might need to start shopping around for a lawyer."
"What qualifies as ""confidential information"" in Malaysia? You’ve seen those letters and documents bearing the label “Private and Confidential” on the cover, especially at the office or with banks. This is a pretty standard warning sign that, if you revealed the information or opened it without authorization, you can get into trouble. You don’t know exactly what type of trouble, but you hope you never find out (but we’ll tell you anyway at the end of the article). But what if there isn’t a label, or if the information was conveyed through words (which you obviously can’t paste a label on)? Unless you were the one setting the confidentiality policy, you’ve probably had times where you couldn’t tell if something was being told to you in confidence. You might even have gotten into trouble for revealing something you didn’t know you were supposed to keep secret. Is information about a project confidential just because it was from a private meeting with your boss? What about the customer database labelled “Confidential” but the whole company can access freely? Before we confuse you, you should know that this is different from “confidential information” in the sense of “official secrets” held by government servants, which is covered by our Official Secrets Act. More on point is the TeaLive case between Loob Holdings and La Kaffa, where Loob Holdings broke the franchise agreement and continued to use La Kaffa’s confidential information as its own - you can read more about in our article linked below. [READ MORE - Will Tealive need to close their shops in Malaysia?] As to what “confidential information” means in a more general sense, well, there’s no hard and fast answer. Here’s why: There are no written laws about confidential information This hardly means that we have no laws on it, but whether it’s an employer, a client, a supplier, a business partner - the way confidential information is protected will largely depend on the contract you sign. You’ll generally have a clause defining exactly what “confidential information” means in your contract, how long it will be confidential, and so on. In layman definitions, we understand confidential information as: “Privileged communication shared with only a few people for furthering certain purposes, such as with an attorney for a legal matter, or with a doctor for treatment of a disease. Receiver of confidential information is generally prohibited from using it to take advantage of the giver.” - emphasis added One conclusion you can gather from that is that not everything that people say is “confidential” is actually “confidential”. In law, the rules are usually defined to very technical degree in your contract, like in this example of a Non-Disclosure Agreement (NDA). They come from some specific rules which determine if a set of information is really confidential: 1. The info must be restricted It’s said that Coca-Cola stores their 100+ year-old carbonated drink recipe in a security vault in Atlanta; while KFC stores their “11 herbs and spices” recipe in a vault in their Louisville headquarters - both being things most people can only dream of getting their hands on. While you don’t have to reach their standard of security and protection, you do have to put in proper measures to safekeep your trade secrets, tech advantage, operations and processes - anything that puts you ahead of the competition. For example, if you’ve unnecessarily disclosed too much info too many people, or you’ve let employees freely access the customer database without any form of security or controls, you’ll have a hard time proving that the information was confidential in the first place. Also, what you want to protect as a “trade secret” must not be available in the public domain. This means that any information that is already known by others cannot be considered “confidential”. To use KFC as an example, you can’t call “ how to fry a chicken” confidential information unless you use a special procedure that no one else in the world knows about; but the exact proportion of “11 herbs and spices” they use is something only KFC knows, so it qualifies as confidential. A parallel to this is that when employees leave, they are still bound to keep their previous employers’ confidential information a secret, such as trade secrets, operation methods, and customer databases. But, they can freely use the skills and knowledge from their previous jobs. [READ MORE - Can Malaysian employers stop their ex-staff from joining a competitor?] 2. It was reasonably clear that the information was confidential Imagine you’re told the details to an upcoming grand-scale project, and you excitedly mentioned it to your team over lunch. Next thing you know, you’re getting told off because it was confidential and you should have kept it to yourself. Wait what, how were you supposed to know it was confidential in the first place?? This is why information only qualifies as confidential if one of the following conditions are met: You were expressly told that it is confidential (eg. verbally, or through a label on the document saying “Private and Confidential), or The circumstances you were given the information came with an obligation to keep it a secret, or A reasonable person who received information in that situation would have thought that the information was confidential “Reasonable person” here means an ordinary person, who may not have specific experience or expertise. So, if the only way to know if something was confidential is through a “standard practice” that somehow no one bothers to mention, that information might not qualify as confidential. What if I have a legal duty to expose the information? There are situations where you could be compelled by the law to reveal confidential information, such as through testimony in court, and whistleblowing on illegal dealings like corruption. In such cases, you can freely disclose the information as you’re required to, but only as far as necessary (it’s not a free pass to leak everything out). [READ MORE - What type of protection do whistleblowers get in Malaysia?] Most confidentiality contracts will also include a provision on what should happen when you’re forced to reveal confidential information by law. In most cases, this involves informing the other party that you’ve been compelled by law to reveal the information, and that you only reveal what is absolutely necessary. So what kind of trouble can I get into? If someone reveals confidential information entrusted to them, they can be sued by the owner for losses caused by the revelation. It’s called an action for breach of confidence, and you’d claim for things like loss of profits, damage to reputation, and so on. But that’s actually not very useful - if your secret recipe got leaked, it’s out there for good and no amount of monetary compensation will undo that. Your best bet to protect any confidential information you have is through prevention, not a lawsuit. You could restrict access to the information, control who can use the information, and clearly outline liabilities in your contracts with employees, suppliers, sub-contractors, and business partners. An example of a commonly signed contract is the Non-Disclosure Agreement which we’ve mentioned above, which outlines the rights and responsibilities of parties with regard to how confidential information should be exchanged and protected (including what happens should there be a breach of confidence)."
"5 apps by the Malaysian government that are actually useful In this day and age, (almost) everything has an app for it. Need to check your bank accounts? Here’s an app for it. Need to buy some groceries? Another app. Even changing your tyres can be done via an app. With that being said, many of us don’t realise that the Malaysian government actually has produced a bunch of apps which you can find on this site. There are a lot of apps there but most of them are not really useful for the general public and some are not updated. Given how many apps there are, we took the time to go through them and ask you guys on Facebook to recommend the apps you like. We found 5 apps that are pretty useful and here they are, ranked in no particular order. 1. MyEG – for drivers What the app does – Check summons, renew road tax, and insurance Who it is for – For everyone who has a car/who drives Download links – iOS (not available) | Android This app allows you to renew your road tax or auto insurance and allows you to check summons from the PDRM or JPJ. In addition to that, you can also check out the delivery statuses for things such as your application for a maid’s permit. We decided to take the app for a swing by checking out how many summons we have. All you have to do is enter your IC number and the app will show you how many summons you have from JPJ or PDRM. When listing down your summons, the app also tells you what offence you committed (for example, speeding or obstruction of traffic) and when and where it happened. It also gives you an option to pay your summons through the app, saving you the hassle of driving out to pay it. Unfortunately, we couldn’t find an iOS version of it but Android users can rejoice. 2. EPF – for workers What the app does – Provides your EPF balance, monthly contributions, and how much withdrawals can be made Who it is for – For everyone who works Download links – iOS | Android Back in the good old days, employees typically placed their trust in their employers to faithfully make the EPF contributions monthly. The only way to check your balance and to know how much you can withdraw would be to head down to your closest EPF branch, which is a pretty huge hassle for the working folks because the only time EPF would be open when be when they are at work. After that, EPF allowed their members to check their account via their online website and now we have the app! The EPF i-akaun app gives you a breakdown on your Account 1 and Account 2 balance, allows you to nominate your beneficiaries, and even lets you know what you can withdraw your money for. The app similarly makes it easy for you to track the monthly contributions made by yourself and your employer. Aside from EPF i-akaun, there is also an app for employers called e-caruman that allows you to use the app to make the monthly EPF contributions for your employees (iOS and Android) and MyPesara which an app that is similar to EPF i-akaun but for pensioners (iOS and Android). 3. iKepoh – for everyone What the app does – Allows you to make various complaints such as road damage, pest infestation, blocked drains to your local authority Who it is for – For anyone, really Download links – iOS | Android No, seriously – the government came up with an app called iKepoh and its purpose is to...let you submit complaints about issues regarding damaged roads, pest infestations, open burning and many more. This app immediately pinpoints your current location, let’s you upload pictures of the issue at hand, and even allows you to write notes on the issue. The app was developed by the Ministry of Housing and Local Government and while we had no complaints to send over, we are running on the assumption that your complaint would be directed to the local authorities who would then investigate your complaint and take any necessary action. 4. myTNB – for those who crave power What the app does – Allows you to view and pay your TNB bills and view your electricity consumption Who it is for – For anyone who owns a house Download links – iOS | Android We know that some of you may say that TNB is not strictly government, but they are a government-linked company. However, many of us equate them as being an arm of the government and see them as one and the same. Regardless of the difference, the app is pretty useful and it even links you to this page, which allows you to list down your household applications and get a rough estimate of how much electricity you are using monthly plus the cost. The app allows you to view your bills and pay them as well. It also has an appliance calculator that shows you how much electricity your household appliance uses. 5. Pos Malaysia – for shopaholics What the app does – Allows you to track parcels on the go, find the closest post office, and calculate the cost for mailing Who it is for – For anyone who sends and receives mail a lot Download links – iOS | Android Similarly, Pos Malaysia is not a government body but it is government-linked and admittedly, a huge part of our daily lives. It used to be a situation where we wouldn’t know when we would get our parcels, then it became having to load the website and manually key in the longgggg tracking number to find out where your parcel is. Now, with the Pos Malaysia app, you would be able to easily scan your barcode and avoid having to key in the tracking number. Aside from that, you even get to enter your desired location to find out the closest post office to you. The outlet finder would also list down the working hours, contact number, and manager of the particular branch.The Pos Malaysia app even has a calculator for you to calculate the cost of sending a letter, parcel, etc to a domestic location or an international one. Honourable mentions As a special mention, Price Catcher is another app (iOS and Android) that is worth looking at. It’s an app that pinponts your location and then lists down the price of groceries around, allowing you to make a comparison and pick the best price for you. Unfortunately, it didn’t make the cut in the above 5 apps because the choices are pretty limited. Aside from that, we also have the apps mentioned above for e-caruman and MyPesara. Hopefully you guys would find the above apps as useful as we have. Let us know what you think in the comments!"
"Apa maksud 'Pilihan raya kecil' dan bila ia diadakan? Pada tiga minggu lepas, satu pilihan raya kecil (PRK) telah diadakan bagi kawasan DUN Sungai Kandis dan akan disusuli oleh dua lagi PRK bagi kawasan DUN Balakong dan DUN Seri Setia yang akan dilaksanakan secara serentak pada 8hb September 2018. Tapi pernahkan anda terfikir, kenapa PRK perlu diadakan sedangkan PRU14 baru sahaja berlangsung tiga bulan yang lalu? Secara umumnya, pilihan raya kecil bermaksud pilihan raya yang diadakan untuk mengisi satu atau beberapa kekosongan kerusi di Parlimen atau Dewan Undangan Negeri oleh sebab-sebab yang timbul selain daripada pembubaran Parlimen atau DUN. Untuk rujukan, ketiga-tiga PRK diatas diadakan atas sebab yang sama, iaitu kematian para penyandangnya. Tafsiran ini adalah sama seperti mana yang dinyatakan menurut Peraturan 2 Peraturan-peraturan Pilihan Raya (Perjalanan Pilihan Raya) 1981. Jadi, selain daripada sebab kematian wakil rakyat, artikel ini akan menerangkan 5 sebab kenapa sesuatu PRK diadakan di Malaysia untuk pengetahuan para pembaca. 1. Peletakan jawatan Jarang sekali kita dengar ada wakil-wakil rakyat di Parlimen/DUN yang meletakkan jawatan mereka secara sukarela – Kali terakhir perkara ini berlaku adalah pada tahun 2014 yang mana Tuan Lee Chin Cheh telah meletakkan jawatan beliau sebagai ADUN Kajang melalui surat pelepasan keahlian DUN Selangor yang diberikan kepada Speaker Parlimen. Dari segi undang-undang, senario ini adalah selaras dengan prosedur yang dinyatakan di bawah Perkara 68 Undang-undang Tubuh Kerajaan Selangor 1959. Di peringkat Persekutuan pula, hal ini juga turut diperuntukkan di bawah Perkara 51 Perlembagaan Persekutuan yang boleh digunakan oleh ahli-ahli Parlimen. Peruntukannya adalah seperti berikut: Pelepasan keahlian oleh ahli-ahli 51. Seseorang ahli mana-mana satu Majlis Parlimen boleh melepaskan keahliannya melalui surat yang ditandatangani sendiri olehnya yang ditujukan, jika dia seorang ahli Dewan Negara, kepada Yang di-Pertua Dewan Negara, atau jika dia seorang ahli Dewan Rakyat, kepada Yang di-Pertua Dewan Rakyat. Maksudnya, mana-mana Ahli Parlimen boleh melepaskan jawatan mereka dengan memberikan surat yang ditandatangani sendiri kepada Speaker Dewan Rakyat (bagi Ahli Dewan Rakyat) atau Speaker Dewan Negara (bagi Ahli Dewan Negara). Apabila seseorang Ahli Dewan Rakyat melepaskan jawatannya, beliau juga hilang kelayakan untuk bertanding untuk kerusi Parlimen dalam tempoh lima tahun bermula dari tarikh peletakan jawatan beliau. Isu ini nyata dijelaskan di bawah Perkara 48(6) Perlembagaan Persekutuan. Jadi, setelah perletakan jawatan, kerusi Ahli Dewan Rakyat tersebut akan diisytiharkan kosong dan satu pilihan raya kecil akan diadakan oleh pihak Suruhanjaya Pilihan Raya (SPR) bagi memberi ruang kepada para pengundi di kawasan tersebut untuk memilih wakil rakyat yang baharu. 2. Desakan untuk meletakkan jawatan Anda pasti telah mendengar cerita tentang beberapa Ahli Parlimen yang dipilih semasa PRU14 yang didesak untuk meletakkan jawatan atas sebab tindakan keluar parti (atau lebih dikenali sebagai ‘lompat parti’). Dalam konteks ini, keputusan Ahli Parlimen untuk melompat parti dianggap tidak sihat dan tidak disokong kerana mereka telah dipilih oleh para pengundi di kawasannya atas kapasiti parti politiknya berbanding kapasiti individu. Namun begitu, Parlimen tidak mempunyai kuasa untuk menghalang tindakan melompat parti dan di samping itu, tiada sebarang undang-undang yang melarangnya yang telah diisytiharkan sah. Ini boleh dilihat dalam kes Dewan Undangan Negeri Kelantan & Ors v Nordin bin Salleh & Anor, di mana kerusi DUN Kelantan milik Nordin dan seorang lagi telah diisytiharkan kosong atas tindakan mereka keluar parti. Ini kerana tindakan mereka dianggap bertentangan dengan Perkara 31A Undang-undang Perlembagaan Tubuh Kerajaan Kelantan, yang memperuntukkan mana-mana ADUN yang keluar parti hendaklah ditamatkan keahlian DUN-nya. Mahkamah Agung (sekarang dikenali sebagai Mahkamah Persekutuan) telah membuat keputusan untuk mengisytiharkan Perkara 31A sebagai tidak sah. Ini kerana ia bertentangan dengan prinsip kebebasan berpersatuan yang dijamin oleh Perkara 10(1)(c) Perlembagaan Persekutuan, yang merangkumi hak seseorang warganegara untuk menubuhkan, menyertai, dan keluar daripada mana-mana pertubuhan secara bebas. Tuntasnya, mana-mana wakil rakyat yang keluar partinya bolehlah sekadar didesak oleh ahli bekas partinya ataupun para pengundinya untuk meletakkan jawatan sahaja. Seandainya wakil rakyat itu akur dengan desakan tersebut dan melepaskan jawatannya, barulah pilihan raya kecil akan diadakan bagi mengisi kekosongan kerusi Parlimen/DUN yang ditinggalkannya. 3. Hilang kelayakan Semasa memegang jawatan Ahli Parlimen, mana-mana wakil rakyat tersebut boleh hilang kelayakan atas macam-macam faktor. Perlembagaan Persekutuan turut menyenaraikan sebab-sebab kehilangan kelayakan mereka dan antara intipati hal tersebut yang dinyatakan di bawah Perkara 48(1) adalah seperti berikut: Tidak sempurna akal/Menjadi gila Menjadi bankrap Memegang jawatan yang mempunyai pendapatan (seperti perkhidmatan awam) Tidak memberikan penyata perbelanjaan pilihan raya seperti yang dikehendaki oleh undang-undang selepas dicalonkan untuk menjadi Ahli Parlimen/ADUN atau menjadi agen pilihan rayanya Disabitkan dengan mana-mana kesalahan oleh mahkamah dan menerima hukuman penjara setahun ke atas/lebih daripada RM2000 & tidak mendapat pengampunan bebas Mendapat/Menggunakan hak kewarganegaraan asing/luar Malaysia Selain daripada Perlembagaan Persekutuan, perlembagaan-perlembagaan negeri juga ada menyatakan sebab-sebab kehilangan kelayakan yang sama seperti di atas – iaitu terpakai ke atas ahli-ahli DUN. Contohnya, Undang-undang Tubuh Kerajaan Negeri Sembilan dan Negeri Selangor juga menerangkan keadaan-keadaan yang menyebabkan seseorang ADUN negeri tersebut hilang kelayakan menurut Perkara 50(1) [Negeri Sembilan] dan Perkara 64(1) [Selangor]. 4. Pemecatan jawatan Seterusnya, sukar sekali untuk kita dengar ada wakil rakyat yang dipecat daripada perkhidmatannya. Setakat ini, ada beberapa orang ahli Parlimen hanya digantung tugas oleh sebab ketidakpatuhan mereka terhadap arahan Speaker ataupun Peraturan Mesyuarat. Hal ini adalah kerana tiada sebarang peruntukan khas yang jelas membenarkan Parlimen/DUN memecat mana-mana ahlinya selain daripada menegur, hukuman penjara, denda ataupun gantung tugas berdasarkan Seksyen 9 dan 29 Akta Majlis Parlimen (Keistimewaan dan Kuasa) 1952. Jika dibandingkan dengan Parlimen United Kingdom, Dewan Rakyatnya diberi kuasa untuk memecat mana-mana Ahli Parlimen sebagai sebahagian daripada keistimewaan Parlimennya. Walaupun tiada sebarang hubung kait yang jelas antara Parlimen Malaysia dengan Parlimen UK, sebenarnya Parlimen negara kita juga turut mempunyai bidang kuasa yang sama sebagaimana Parlimen UK. Menurut Seksyen 32(1) Akta Majlis Parlimen (Keistimewaan dan Kuasa) 1952: Privileges and immunities of the House of Commons to be enjoyed by the House and members thereof 32. (1) Save as is otherwise expressly provided by this Act, the House and the members thereof respectively shall hold, enjoy and exercise such and the like privileges and immunities, and powers relating thereto as are held, enjoyed and exercised by the Commons House of the Parliament of the United Kingdom and by the members thereof and also such privileges, immunities and powers as are from time to time defined by any law of Malaysia but not exceeding those at the commencement of such law held, enjoyed and exercised by the Commons House aforesaid and by the members thereof respectively whether such privileges, immunities or powers were so held, possessed or enjoyed by custom, statute or otherwise. Terjemahan tidak rasmi bagi Seksyen ini adalah seperti berikut: Keistimewaan dan kekebalan Dewan Rakyat United Kingdom untuk dinikmati oleh Parlimen dan ahli-ahli yang daripadanya 32. (1) Kecuali sebagaimana yang selainnya diperuntukkan dengan nyata oleh Akta ini, Parlimen Malaysia dan ahli bahagiannya masing-masing hendaklah memegang, menikmati dan menjalankan apa-apa dan sebagainya keistimewaan dan kekebalan, dan kuasa-kuasa berkaitan dengannya kerana memegang, menikmati dan dilaksanakan oleh Dewan Rakyat Parlimen United Kingdom dan oleh ahli-ahli daripadanya dan juga apa-apa keistimewaan, kekebalan dan kuasa sebagaimana yang dari masa ke semasa ditakrifkan oleh mana-mana undang-undang Malaysia tetapi tidak melebihi yang terdapat di permulaan undang-undang sedemikian memegang, menikmati dan dilaksanakan oleh Dewan Rakyat United Kingdom tersebut dan oleh ahli-ahli yang daripadanya masing-masing sama ada apa-apa keistimewaan, kekebalan atau kuasa adalah Jadi diadakan dimiliki atau dinikmati oleh adat, statut atau selainnya. Maksudnya, Parlimen Malaysia boleh mengguna pakai setiap keistimewaan dan kuasa yang dimiliki oleh para ahli Dewan Rakyat UK (House of Commons) dan Parlimennya. Oleh sebab itulah, jika Parlimen UK mempunyai kuasa untuk memecat Ahli Parlimennya yang dipilih menerusi pilihan raya, Parlimen Malaysia juga sebenarnya mempunyai kuasa yang sama untuk memecat mana-mana ahlinya walaupun tindakan ini kelihatan tidak demokratik dan lantaran itu, kuasa ini jarang sekali digunakan olehnya. 5. Kematian Akhir sekali, seperti yang dinyatakan di permulaan artikel ini, terdapat tiga orang ADUN Selangor yang meninggal dunia disebabkan oleh kesakitan tubuh badan dan kemalangan jalan raya selepas mereka dipilih sebagai wakil rakyat semasa PRU14. Boleh dikatakan bahawa inilah sebab utama PRU diadakan. Menurut seorang pakar perlembagaan iaitu Prof Shad Saleem Faruqi, sejak tahun 1959 hingga 2016, seramai 45 orang Ahli Parlimen telah meninggal dunia ketika masih dalam perkhidmatan yang disebabkan oleh penyakit, kemalangan jalan raya, nahas pesawat atau helikopter dan dibunuh. Dari segi undang-undang, Perkara 66(1) Undang-undang Tubuh Kerajaan Selangor 1959 iaitu Perlembagaan Negeri Selangor memperuntukkan: Kesan kematian, kehilangan kelayakan dan larangan pencalonan tanpa persetujuan 66. (1) Jika seseorang ahli Dewan Negeri meninggal dunia atau hilang kelayakan untuk menjadi ahli Dewan itu, maka kerusinya hendaklah menjadi kosong. Maksudnya, kekosongan boleh berlaku apabila terdapat kematian mana-mana wakil rakyat dak PRK akan diadakan untuk memilih wakil rakyat yang baru. Kesimpulannya – jom mengundi (sekali lagi)! Secara holistiknya, ia dapat dikatakan bahawa pilihan raya kecil selalunya akan diadakan untuk mengisi kekosongan kerusi tersebut atas sebab-sebab yang dibincangkan di atas. Hal ini adalah signifikan untuk memastikan suara masyarakat tempatan yang terjejas boleh dibawa oleh wakil baru yang dipilih melalui PRK di Parlimen atau DUN. Oleh sebab itulah, pilihan raya kecil mempunyai kepentingan yang setaraf dengan pilihan raya umum; maka rakyat mestilah menganggap tugasan turun mengundi itu sebagai satu tanggungjawab penting yang perlu ditunaikan."
"What is a patent, and how do you get one in Malaysia? If you’ve written a book, you get a copyright to protect it. If you’re designing a logo for your company, you’ll apply for a trademark to make sure no one imitates it. And if you’ve invented a machine that makes perfect coffee every single time, you’ll want a patent on that. These are all types of what we call “intellectual property”, which is a pretty accurate name because they are things that come from the mind which you can own, just like a house. If you’ve ever heard about patents before, it’s probably been in medicine, engineering, or technology. Probably one of the best known incidents of patents appearing in the news is when Apple sued Samsung for infringing on their “Slide to Unlock” patent. The case spanned back from 2011 and was finally settled in 2017. We’ve written about both copyright and trademarks before (which you’ll find linked below), but patents are in a higher category by themselves because of how difficult they are to get, and how rich they can potentially make you... [READ MORE - What’s a copyright and how do you get one?] [READ MORE - Here's how Malaysian trademark law protects YOU from getting conned] So, what exactly is a patent and what makes it so difficult to obtain? A patent is an exclusive license to use an invention Take your perfect-coffee machine. After all those resources you poured into developing this wonderful invention, you’d want to benefit from it - most commonly by mass-producing them and selling at a profit. But you can’t afford to have some smart guy buy your machine, reverse-engineer the science, and make a copy of it! They’d be freeloading on the work - YOUR hard work. This is why we have patents to protect inventions, so that inventors can benefit from the fruits of their labour - for the limited period of 20 years, subject to you paying an ever-increasing annual fee. Think of it as having a title deed for your invention, just like with real estate. As a patent owner, you get the exclusive rights under Section 36 of the Patents Act 1983 to: Exploit your patented invention To assign any rights of your patent to others To form license contracts for your patent “Exploit” in this case means to use your invention commercially, by selling, stocking, and using it in the case of a product. But if your invention is a process (for example, the Haber process for manufacturing ammonia), you get exclusive right to use the process, and the right to sell the product of your process. In both cases, you’re basically getting a temporary monopoly on your invention in exchange for your contribution to improving the world. Before you get too excited and start building an lab to tinker away in, you should know that… Not all inventions can be patented To get one of your creations patented, it needs to qualify as an “invention” according to the law first. Section 12(1) - Patents Act 1983 “An invention means an idea of an inventor which permits in practice the solution to a specific problem in the field of technology.” - emphasis added So in short, your invention has to solve a problem, and not be for fun. Next, your invention needs to qualify as patentable: Section 11 - Patents Act 1983 “An invention is patentable if it is new, involves an inventive step and is industrially applicable.” - emphasis added The bolded words are extra criteria unto themselves, because legal definitions are snobbish pretty specific that way: “New”, means it’s not anticipated by “prior art”, which in a simple sense means current knowledge and state of technology. If something has an “inventive step”, it would not be obvious to a person with ordinary skill in the a prior art. For example, your perfect-coffee machine qualifies if it uses a special heat regulator that other people have not been able to develop. “Industrial application” is more straightforward - if your invention can be made or used in any kind of industry, then it is “industrially applicable”. Even then, certain inventions are not patentable, usually it’ll be because it’s intangible, or because it’s too broad to be under the control of one person (imagine getting sued for having the same coloured living room as another person): Discoveries, scientific theories, and mathematical methods Plant or animal varieties, or biological processes for producing plants or animals (but this does not include man-made organisms or their products) Methods for doing business, performing mental acts, or playing games Treatment and diagnostic methods for treating humans and animals by surgery or therapy So you can’t patent a math theory like the Fibonacci sequence, but you can still write books about it, which will be protected under copyright. To use a different example, although you can’t patent the colour “ruby red”, you can patent the process of manufacturing “ruby red” paint which you’ve discovered. Does a patent apply worldwide? Nope! Patents only apply regionally, so if you want to sell your perfect-coffee machine in Malaysia and Singapore, you’ll need to apply for a separate patent for each country. There’s an international convention called the Paris Convention for the Protection of Industrial Property which makes the application smoother. Most importantly, if you’ve applied for a patent in a country that signed the Paris Convention, you get priority for 12 months to file that same patent in any other country that also signed. There’s also an alternative method through what’s called the Patent Cooperation Treaty (PCT) which you can apply through to get your patent recognized in all countries that are party to the PCT. So you won’t have to file a separate patent with every single country in the world if you want to take your invention international. You can find out more about how the PCT works at the World Intellectual Property Organization here. Here’s how to apply As with any other form of intellectual property in Malaysia, you’ll be filing an application with MyIPO (Intellectual Property Corporation of Malaysia) to get something patented. You’ll need: Your name and address (or your company’s) The name and address of the inventor A description of the invention, attached with any necessary diagrams and drawings At least one claim Payment of filing fees The application process usually takes about 12 months for a regional patent (specific to one country), and can take up to 30 months for an international application using the PCT. There are a few examinations of your patent that need to happen before you can get your invention patented (the patent office actually needs to write a report stating why you should or should not get the patent). For more information on patents and other forms of intellectual property in Malaysia, you can visit MyIPO’s website over here."
"Malaysians can now sue for sexual harassment thanks to a case involving...coconuts? Since late 2017, the #metoo movement has swept across the world. This movement is basically about victims of sexual harassment, hashtagging the phrase to indicate that they too have been sexually harassed before. Both men and women, whether of superstar standing or your average neighbour, has participated in this movement and it has led to the exposè on several powerful moguls, most noticeably, Harvey Weinstein and Kevin Spacey. In Malaysia, the #metoo movement has swept across the Twittersphere, articles have been written about the sexual harassment that have happened in the workplace such as journalists or doctors. But most of these conversations seem to be taking place overseas, so does that mean that Malaysia is behind in addressing sexual harassment, at least in the workplace? Well, not really because, first off, workplace employees are already protected by the Employment Act 1955; which you can read about here. Not just that, in 2016, the court addressed the issue head-on by introducing the tort of sexual harassment into the justice system, which basically allows victims to sue their harassers. Long time AskLegal readers would be familiar with what a tort is but as a quick refresher, you can click here. While this was a huge step in itself, what makes the story even more interesting is that it involved a conversation about coconuts, and that it all started because the harasser sued the victim. She was sued for complaining about him Back in 2009, the alleged victim, Asmah Haji Mohd Nor, and her alleged harasser, Mohd Ridzwan Abdul Razak, were both employees of Lembaga Tabung Haji. Asmah was a senior manager who reported to Ridzwan, the General Manager of the Risk Management Department. On 29 July 2009, Asmah lodged a complaint to the Chief Executive Officer (“CEO”), alleging sexual harassment from Ridzwan. As a result of this complaint, the company set up a committee to inquire into the complaint and the investigations took place from 1 September 2009 to 16 September 2009. The investigation found that there was insufficient evidence to warrant any disciplinary action but the Human Resources Department decided to issue a strong administrative warning to Ridzwan. Asmah then applied to transfer to another department in the company. However, Ridzwan was aggrieved by the complaint and decided to...sue Asmah for defamation. Among other things, Ridzwan claimed that the complaint had affected his reputation and standing as a good Muslim, as a senior member of the company, and it led to his contract not being renewed by the company. Before suing Asmah, Ridzwan actually lodged a complaint with the company and requested the company to take action against Asmah for lodging her sexual harassment complaint without proof. However, no action was taken by the company and on 9 December 2011, he decided to sue Asmah for defamation, a declaration that he had not sexually harassed her, and damages. Basically, he said that Asmah defamed him and because of this, he wanted money and a statement from her stating that he did not sexually harassed her. In return, Asmah counterclaimed for damages for the sexual harassment that she faced and relied on a psychiatrist report to explain the repercussions of the harassment on her. At this point of time, we bet that many of you are wondering what were the actions that led to the sexual harassment complaint. Things went a little...(coco)nuts Before we kick this point off, we would like to point out that all these quotes were taken directly from the Federal Court judgment on this case. If we told you that you could use coconuts to measure a man’s virility, you would probably laugh us off and call us Nutlegal. But this was one of the things that Ridzwan told Asmah and we quote: “Kalau you nak tahu ‘benda’ lelaki tu berfungsi ke tak ikut orang- orang tua, ikat ‘benda’ tu dekat tali. Tali tu sambungkan dengan buah kelapa. Kalau buah kelapa tu terangkat, maksudnya ‘benda’ tu ‘good’. “Sexual graph of a person, men after 50 is no use. Kalau 20 it shoot up. 30 graf turun. When 40, it shoots up again” As a literal translation for you guys, the statement reads: “According to the elderly, in order to find out if a man’s genitals are working, you have to tie it to a string, connected to some coconuts. If the coconuts are lifted, it means that the genitals are ‘good’. The sexual graph for men shows that men after 50 are useless. While men are in their 20s, the graph shoots up, goes down in the 30s and shoots up again in the 40s.” If you are thinking that this is just some harmless office banter...this wasn’t the only comment he made to her. He made more comments such as: “F**k you” “Kalau cari husband cari yang beragama, bertanggungjawab, macam I’, ‘You kena buat sembahyang istikharah dan kalau you mimpi, you akan berjimak dengan orang tu” “Ingat tak seorang Cina masa di Bank dulu? Kalau you pergi meeting, you kena tebalkan muka, you kena ada strong “ball” “F-*-*-K” (was the appellant’s laptop password)” “ANOTHER SOB, TYPICAL HOMEBREED” “I AM BEGINNING TO HATE VERY MUCH THESE HOMEBREED, WORST THAN KHINZIR” “You nak kahwin dengan I tak, I banyak duit tau” “Would you prefer married man” “You ni selalu sangat sakit. You kena kahwin tau. You nak tak laki orang” At this point, some of you may still think that this is harmless office banter but when Asmah was caught in this situation as a subordinate and was exposed to such statements on a regular basis, it actually caused her psychiatric harm. Asmah was diagnosed with major depression from Ridzwan’s sexual harassment. While it seems like most of us would agree that the above does count as sexual harassment, there was one big problem… There were no laws on sexual harassment While the Employment Act does cover sexual harassment in the workplace, at the point when Asmah brought her counterclaim for sexual harassment, there was no law that allowed sexual harassment victims to bring the case to court. If no law exists, it meant that you technically can’t sue on it. We know that this is confusing but think of it in this way – TLDR; it’s all internal with no external remedy. What we mean is while the Employment Act does provide that employers have to take steps to investigate your complaints, it similarly places all the power in the hands of your employer. There is a small alternative of making a complaint to the Director General of Labour but the Director General can only direct your employer to conduct the investigations. The Federal Court in Asmah’s case similarly highlighted this issue: “We need also to highlight a few concessions made by parties, namely that in Malaysia the tort of sexual harassment at the time of filing of the action did not exist, nor any legislation had been promulgated on the law of sexual harassment prior to the Employment (Amendment) Act 2012 (Act A1419), which came into force on 1 April 2012. This Act included an amendment to include Part XVA into the Employment Act 1955 (Act 265). This amendment provided for the manner in which employers should deal with complaints of sexual harassment at the place of work ie, it puts the employer to task. This amendment unfortunately did not address the rights and liabilities of the harasser and the victim.” - Suriyadi Halim Omar FCJ, Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor [emphasis added] Before this case happened, all sexual harassment complaints are dealt with by the employer alone and their decision would be the end of the road. So why is this case so important? Well, the thing is, as mentioned, Ridzwan sued Asmah for defamation and she made a counterclaim for sexual harassment. The Malaysian law at that point didn’t have a way to deal with it, so... The judges ‘created’ a new law We are glad to report that the courts decided to step in and engage in “judicial activism”. Some quick explanation is needed here – generally speaking, the only body that is allowed to create new laws is Parliament; the judiciary is only supposed to apply the law that has been passed by Parliament. However, there are situations where judges have been known to create laws in order to suit the needs of changing societal perceptions and mores. This is commonly known as the system of judicial precedent and you can read more about it here. Basically when the Federal Court agreed to engage in judicial activism, it means that they agreed that it was necessary to step in and create a new law – the tort of sexual harassment: “After mulling over the matter, we arrived at a decision to undertake some judicial activism exercise and decide that it is timely to import the tort of harassment into our legal and judicial system, with sexual harassment being part of it.” – Suriyadi Halim Omar FCJ, Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor This means that you can now sue for sexual harassment! The importance of this case is that it is now possible for Malaysians to sue for sexual harassment and not be limited by the Employment Act. In addition to that, you would now be able to bring your case to the courts as opposed to leaving the matter in your employer’s hands alone. As a TLDR; our laws are now much capable of handling the nuances of sexual harassment complaints and have been ‘updated’ to address current needs."
"In Malaysia, does CSI evidence really prove that someone committed a crime? Earlier this week, we were invited to an event at Kidzania Kuala Lumpur for their Kidz & Tech event in collaboration with Google Malaysia. So you might be wondering what a children’s theme park has to do with law… and that’s what we were wondering as well. Then, we saw that two of the events involved forensic science – fingerprint dusting and UV light evidence – and the first thing that came to mind was… When CSI: Crime Scene Investigation came out in the 2000’s, it was, like, the coolest thing ever. CSI investigators got to play with cool gadgets, they were respected by the regular ‘beat’ cops, and used brawn to chase down and catch the suspect after using their brains to ID them. Best of all, Crime Scene Investigation is based on real science that’s used in real-world criminal investigation! The popularity of the series led to what’s called the CSI Effect, where the show (and spinoffs) caused a spike in students taking up Crime Scene Investigation and Forensic Science courses, eager to put on a pair of sunglasses after making a case-related pun. But this is where TV and real life starts to splinter, as students soon found out that the job isn’t nearly as glamorous as seen on TV – with some schools even publishing differences between the show and the actual job. The CSI Effect also affected real-life investigators, who were now tasked with explaining to both the police and juries (in the US) that forensic evidence isn’t needed for every case – one juror apparently complained that the investigators didn’t do a good job as they “didn’t dust the lawn for fingerprints” – or that computers don’t instantly spit out DNA test results (it can take months). So if you (like us back then) based your impressions of CSI evidence on a TV show, you may be disappointed (or perhaps relieved) to know that… CSI evidence doesn’t PROVE you committed a crime Let’s take a look at two example scenarios: Scenario 1 A man is found covered in stab wounds is found in a KL alleyway. On a discarded bottle near the body, investigators find fingerprints that are traced to John; who works in a nearby bank. Scenario 2 A man is found covered in stab wounds in his apartment. Investigators find a muddy shoeprint on the floor that doesn’t match any shoes belonging to the victim. They also find a bottle with fingerprints that are traced to John, who works in a nearby bank. From CCTV footage, they find that the victim made a big cash withdrawal through John. They also find that John owns a pair of shoes matching the prints. A knife with traces of the victim’s blood was found in a trash can close to John’s house. This is a pretty simple (if not convenient) example, but the point here is that the authorities would have a much harder time establishing a case against John in Scenario 1 compared to Scenario 2. Why? Because evidence is actually broken down into two subcategories – circumstantial evidence and its brother, direct evidence. In order to convict someone, we’ll also need to look into their cousins relevant facts and facts in issue as well. We won’t go into the law on this, but you can refer to Sections 5 – 9 of the Evidence Act 1950. So let’s break it down using the two scenarios above as a reference. Relevant facts and facts in issue are used to establish a case Facts in Issue – Things that need to be established to directly show the judge that the crime was committed by the suspect Simply put, this is the backbone of the case. In order to charge John with the crime, the prosecution needs to establish a “checklist” of things to prove, such as The death of the victim had taken place The victim’s death came as a result of something John did John had the intention to do something that resulted in the death of the victim This is where the Relevant Facts will come in. Relevant Facts – Things that don’t directly show the judge that the suspect committed the crime, but can be used to support the Facts in Issue To simplify this, you can think of a Relevant Fact as a motive. In Scenario 1, it can definitely be proven that a death had taken place, but there’s no link between John and the victim other than the bottle In Scenario 2, the prosecution can argue that the death was caused by John’s motive was to rob the victim of the cash he’d just withdrawn So now you might be thinking… these are not facts, these are theories! Well, this is where evidence comes in. Evidence is used to further support the Relevant Facts and Facts in Issue Direct Evidence – As the name suggest, this evidence directly proves a Fact in Issue or a Relevant Fact Usually, this would be testimonial from someone who directly witnessed the crime taking place or a recording of it. However, both scenarios don’t contain any direct evidence. So this means the prosecution will have to rely on circumstantial evidence Circumstantial Evidence – Does not prove a Fact in Issue, but can prove a Relevant Fact by allowing the judge to connect the dots This is the fun part. In Scenario 1, the bottle can be used as circumstantial evidence to show that John was at or at least close to the crime scene; but it cannot show when he was there, or that he had committed the crime. In essence, the prosecutor can only show that the bottle and John connected at some point, while John’s defense lawyer could argue back that the only crime John is guilty of is littering. However, in Scenario 2, the CCTV footage can be used to show that John knew the victim had a lot of cash and he could have gotten the victim’s address from bank records. While the rest of the circumstantial evidence (the shoes, bottle, and knife) doesn’t conclusively show that John plunged the knife, it shows that someone with John’s fingerprints who also owns the same pair of shoes John owns had been at the apartment and, after killing the victim; happened to discard the murder weapon close to John’s house. With so much circumstantial evidence being linked back to John, there are only two conclusions that can be made – either John is the unluckiest man in the word; or he was the murderer. The reason why so many crime shows feature circumstantial evidence is simply because... it’s more dramatic. As the person watching the show, it’s fun to see how the dots are finally connected to finger the bad guy out. Compare this to direct evidence where say, 10 witnesses saw John stabbing the victim as a CCTV captures the entire event. Of course, cases in real life can be a lot more convoluted than this and in many instances these evidences and facts can overlap. To get a better idea, you can check out two real cases that we’ve previously covered: Sunny Ang – Sunny Ang was charged with the murder of his girlfriend who went missing after a dive trip in Sentosa, Singapore, in 1963. This case relied almost purely on circumstantial evidence as her body was never found. Although the trial took place in Singapore, it affected how Malaysian courts handled murder cases where bodies were missing or destroyed. Noritta Samsudin – A still-unsolved murder where circumstantial evidence caused the court to acquit (find not guilty) the suspect even though he turned himself in to the police, and DNA evidence showed he was at the crime scene. So… don’t believe everything you see on TV! Being a parent to young children can sometimes confront us with hard decisions – should we educate our kids to be more realistic about how the world works – to be able to tell the difference between TV and reality, or when someone is trying to cheat or bamboozle us – at the cost of childhood innocence? Or should we just let kids be kids and hope they’ll slowly learn along the way? Or is there a way to bridge the two? Since it’s the school holidays, you could bring your kid(s) over to Kidzania where they’ll be able to participate in fun, educational activities based on science and technology such as drones, augmented reality, and Google’s Be Internet Awesome workshop that teaches kids the fundamentals of being safe online through interactive games. But perhaps more interesting (to us) is that Kidzania actually has activities that incorporate government procedures such as a police station, LHDN “branch”, MBPJ “city council”, jail, and a courthouse… all presented in a fun, kid-friendly way, of course. You can find more information on Kidzania here."
"Why would a lawyer ask you to plead guilty to a crime in Malaysia? If you’ve watched (usually American) courtroom dramas like Suits or Law and Order, you’d usually come across a scene where the judge asks the suspect “How do you plead”, in which the suspect would either plead guilty or not guilty. But you may also be surprised to know that this also happens in our own Malaysian courts – in real life! So now you know that a suspect is given the opportunity to plead guilty in real life, it happens across different legal systems, and your lawyer might advise you to do it. The questions that may come to mind is – What idiot in their right mind would plead guilty? What’s the point of having a lawyer if they’re gonna ask you to plead guilty? Well, for one thing, pleading guilty doesn’t automatically mean you’re guilty – The court is basically asking you whether you’re going to admit or deny responsibility of the crime you’re being accused of. One of the few reasons why your lawyer may ask you to plead guilty is because there is a chance that you would get a lighter sentence. [READ MORE: If guilty, you don't have to serve your full sentence in Malaysia because.... Discounts] On TV, pleading guilty usually means it’s a cut to the police station with the detectives talking about the case over coffee just before the credits roll; but in real life, it’s actually a lot more complicated than that. In real life, A lot of caution is applied when it comes to a guilty plea, because there is a risk that you may have unknowingly signed away your right to a fair trial. This is because... There is no trial if you plead guilty Under Section 173(b) of the Criminal Procedure Code, the court must make sure you understand the consequence and nature of a guilty plea as there are two very important consequences that may come as a result. The first consequence is that you will lose your right to appeal. This basically means that once you plead guilty, you cannot bring your case to a higher court to argue that you were innocent. This was laid out in the case Gabriel v PP, where Gabriel pleaded guilty to theft and was sentenced to prison and a fine. He later tried to appeal to the High Court but was rejected because… well, he pleaded guilty. The second consequence is that there will be no trial. So usually the trade-off is that, for saving the courts the time and money of putting you through a trial, the judge MAY give you a lighter sentence in return. However this is not 100% certain, as the judge may still give you a maximum sentence. [READ MORE: How does a judge decide what punishment to give a criminal?] An example of this was the case of Lee Weng Tuck v PP, where Lee was charged with drug trafficking – a crime which is punishable with the death penalty if found guilty. Although he pleaded guilty, he was made to understand that the judge could still give him the death sentence, even though the death sentence wasn’t mandatory. It’s either guilty or not guilty, no buts In lawyery terms, a guilty plea by the accused has to be unreserved, unqualified, and unequivocal, as per Section 173(b) of the Criminal Procedure Code. In normal human speak, this basically means when you plea, it has to be without conditions and exceptions. To illustrate, when the court asks you to plead, you cannot go “errr...I plead guilty, but...”. There are actually those who tried to plea with conditions, and this is how the courts approached the matter. In the case of PP v Cheah Chooi Chuan, Cheah hilariously stated he would plead guilty if the complainant (the person who accused him of the crime) slaughtered a chicken in court. What made it even more hilarious (unless you’re with PETA) is that the complainant actually went through with it. The chicken was slaughtered in the compound of the court and Cheah went on to plead guilty. Fortunately for the integrity of the law, when the case was revised, the court decided it was not a proper guilty plea for the reasons stated in the first paragraph. A similar plea (no animals harmed this time) was given by the accused in PP v Margarita B Cruz. Here Margarita (burrrp) was charged with unlawful possession of passports. When the court asked Margarita to plead, she actually pleaded guilty, but went on to add that her two friends told her to keep the passports. Despite the plea, the court went on to convict her. Margarita appealed her case and said that her plea of guilty was not unconditional, and it should not have been accepted in the first place. You may still get asked questions When you plead guilty, you actually would not immediately be found guilty. The prosecution will be asked to state brief facts of the case and tender some evidence. So what exactly are brief facts? The courts actually took the opportunity to explain the meaning of ‘brief facts’ in the case of Lian Kian Boon. The case itself isn’t as interesting as those highlighted above, but the main point is that the court defined brief facts as those facts necessary to establish the charge, and those facts which the prosecution can prove”. So for example if you were charged for murder, the prosecution would have to prove that you killed the victim and you intended to do so. They would probably have to state that you stabbed the victim, and you actually had some ill will towards the victim from before. Once the brief facts are given to the court, the court will then ask whether you admit to those facts given by the prosecution. If you do, the court can then record a conviction and then sentence you accordingly. If you don’t, the court must set the case down for trial. You can actually cancel your guilty plea In the earlier mentioned case of Lee Weng Tuck (the drug trafficking one), Lee actually tried to withdraw his guilty plea with the excuse that he wasn’t feeling well and he didn’t know the punishment for the crime was death. The question the court had to decide on was basically – Can a guilty plea be withdrawn? The court actually decided Yes – An accused can withdraw a guilty plea, but it’s not a 100% confirmed thing. It’s entirely up to judge to allow or reject a guilty plea withdrawal. Sometimes you still need a lawyer to plead Usually when you’ve messed up enough to be facing charges in court, you’ll expect yourself to be accompanied by a well suited up (in Malaysia’s case, robed up) lawyer. But if you are gonna admit to the crime (via a guilty plea), why would you need a lawyer? The need for a lawyer was illustrated in the case of Low Hiong Boon v PP which concerned a trainee nurse who was charged with killing of a baby. Low didn’t actually kill the baby directly, but the facts were that she was careless enough to allow the baby’s mother to administer an excessive amount of medicines to the baby. If you think the facts are confusing and may involve an element of science, you aren’t the only one. In such situations, it is best that the accused have a lawyer when she pleads, to understand the legal and factual complexities of the case better (and that is what the court decided)."
" Does a Malaysian with mental illness NEED to be put in a mental hospital? Unless you’re spectacularly #woke, when you think mental illness or mental health problems, the first word that comes to mind would likely be psycho, gila, or Tanjung Rambutan – followed by a dark, high security mental asylum. You’ve got the flickering lightbulbs, skittering cockroaches, and token straitjacketed fellows muttering to themselves in padded cells… aaand we’ve basically described Arkham Asylum. But here’s the thing – In 2015, the Ministry of Health reported that roughly 3 out of every 10, or 29.2% of adult Malaysians suffer from mental health problems. So here’s the question… if that’s the case, then why aren’t we seeing 3 out of 10 people running around naked, talking to themselves, or screaming obscenities at a tree? In reality, these actions are actually symptoms of psychotic disorders such as schizophrenia and dissociative identity disorder (what we used to know as “split personality”); which only affects 1% of the population. The majority are actually “invisible” disorders such as anxiety and depression, also called Common Mental Disorders (CMD). So to put things in perspective, it would be highly unlikely for someone to be committed to a mental institution for a CMD, so this article will be focused on psychotic disorders, or people who are found to be insane. Common psychotic symptoms include hallucinations and delusions. But hmm, how do you even decide if a person is “insane” in the first place? What is “insane”? This isn’t directly related to the article, but it’s interesting to know that the word (and definition) of “insane” changes depending on whether you’re a doctor, lawyer, or a member of the public. For the most part, we’ve addressed public perception earlier, so let’s focus on the medical and legal views. For doctors – in this case mostly Clinical Psychologists and Psychiatrists – the word “insane” can be considered an outdated and inaccurate term. Rather, specific diagnosis of a mental disorder is given. These conditions are documented in books such as the Diagnostic and Statistical Manual of Mental Disorders (DSM) and the International Classification of Diseases (ICD). We may joke that reading such lengthy books would drive you insane, but the medical community relies on such texts to help diagnose mental diseases. However, the word “insane” is still used in law, although the actual term used by Malaysian lawyers is “unsoundness of mind”. The legal definition of “insane” comes from the M’Naughten Rules, a classic case from the UK, and is commonly used as a criminal defence. This is mentioned in Section 84 of the Penal Code: 84. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. This basically means that a defense lawyer could argue that their client was insane when they committed the crime, meaning that they didn’t understand what they were doing and/or that they didn’t understand that what they were doing was wrong. Of course, this would need to be backed up by evidence, facts, and even medical reports. You can read more about this here: [READ MORE: How does an insanity plea work in Malaysia?] So… how does someone get admitted to a mental hospital? Malaysian law has changed considerably over time with regards to mental health. Historically, the Lunatic Ordinance of Sabah 1951, Mental Health Ordinance Sarawak 1961, Mental Disorders Ordinance of 1952 used to govern this for Sabah, Sarawak, and Peninsular respectively. These laws have now been unified under the Mental Health Act 2001 which came into power under the Mental Health Regulations 2010, and govern both sides of the country today. So lets say someone you know becomes off their knocker – do they actually get rounded up and hauled off to be locked up…? Don’t worry, they won’t. Section 8 of the Mental Health Act 2001 gives us the various ways a person can be admitted into a psychiatric hospital. Some of them are obvious, such as voluntarily going for it, or being transferred from a different hospital. However, hospitals also have legal power to detain and admit psychiatric patients without their consent, and it is given in Section 10 – Admission of involuntary patient into psychiatric hospital. The section itself is rather long, but the gist of it is that it can be done in two ways: A relative makes an application (via a form) to the Medical Director asking to admit them for a psychiatric illness; or An application is made by a doctor due to the extent of their disease, or for the health and safety of themselves (or others). But that’s not all. A practicing Doctor will also examine the person in question within 5 days of the admission. Some other requirements in Section 10 include: - Two different medical practitioners must examine the patient - The two examinations cannot be done by the doctor who recommended the detention - One of the examinations must be done by a qualified psychiatrist - The patient must be lawfully discharged if there is no further reason to detain them So basically, lots of hoops to jump through, lots of boxes to tick. This hopefully means that the people who are admitted involuntarily are not held in a hospital unfairly. Are there laws protecting mental patients after admission? So you might have seen how badly mental patients have been treated in movies but, in real life, it’s not easy to get away with patient abuse in hospitals. First and foremost, our article on the Bolam Test explains the standard of care for medical professionals. Basically, a doctor is expected to act with a general standard of competency that other doctors can meet – and should this not be met, the practitioner can be legally liable. It’s basically the professional version of your mom and dad going: “Why your sister get straight A but you cannot?”. So what happens when patients ARE mistreated? Section 86 of the Mental Health Act 2001 – Ill-treatment of patient (2) A person who ill-treats or wilfully neglects a mentally disordered person who is in his custody or under his care and protection commits an offence. This basically makes it illegal for any care staff to mistreat a mental patient. This is where the Bolam Test comes in, and is used as a standard to determine if the a patient has been mistreated or not. The penalty for ill-treating a patient is a fine or up to RM10,000 and/or up to 2 years of jail. Don’t be afraid to seek help! While things have improved in recent years, mental patients back in the day were prone to various forms of mistreatment in the view of “curing” them. Some old-timey treatments included isolation, blood-letting, lobotomy, and drilling holes in the skull. Fortunately, public opinion, medical advancements, and the law itself have evolved to help take care of those in need of mental healthcare (although there’s still much more to be done). But now, help and proper treatments are readily available so it might make you feel a little safer about sending a loved one who may be suffering from psychotic illness to get treatment. If you ever need to report a case of hospital abuse (whether for mental patients or otherwise), this reporting guide from the Malaysian Medical Council could help you out. It’s also worthwhile to mention again that mental health issues like CMDs are becoming increasingly common, and there shouldn’t be a stigma attached to it. If you need more information, help, or just someone to talk to; organizations like Relate Malaysia or Befrienders can help. Relate – Website | Contact form | Facebook messenger Befrienders – Website | Hotline : 603-79568145"
"Did you know Malaysia has dangerous atomic materials? These guys keep us safe RADIOACTIVE DEVICE MISSING. The headlines on the local newspapers seem like the beginning of an action movie, and with words like “dirty bomb” being thrown around, the recent news of a missing radioactive device has been quite a concern to Malaysians. While we may not have Tom Cruise rappelling down a building or hanging off a plane to find the device and save us, the PDRM have been searching for the missing device – assisted by a special agency that was established to deal with radioactive and/or nuclear concerns in Malaysia. But they don’t hold guns, they hold geiger counters They are known as the Atomic Energy Licensing Board (AELB). Just like how we have the JPJ to handle road- and vehicle-related matters, the AELB deals with nuclear and radioactive matters. The AELB has been around since 1968, and they are basically tasked with making sure that people comply with the Atomic Energy Licensing Act 1984, which governs how people use radioactive and nuclear materials. If we could simplify the main tasks of the AELB, it would be as such: Giving out licenses to those who can deal with radioactive/nuclear materials. Making sure those who deal with radioactive materials are actually being careful/following protocols. Using their expertise, knowledge and experience to find a radioactive device if it goes missing If you take it a step further, the AELB is basically tasked with preventing Malaysians from being victims of radioactive poisoning and, in a worst case scenario, a nuclear explosion. Unfortunately, we couldn’t find any legislation regarding the use of bottlecaps in a post-fallout universe. If you are wondering why the PDRM is involved with radioactive matters since it should be under the AELB’s jurisdiction, we can use an earlier incident to explain that since… This is not the first time AELB was required to assist the PDRM Last year alone, the AELB was involved in 2 incidents, one of which was the high profile assassination of Kim Jong-nam at KLIA 2. The other involved the theft of a radioactive device similar to the one that recently went missing. With regards to the similar device which went missing in Klang, the AELB along with the PDRM conducted the search and investigation for the device because, in such situations, criminal elements like theft and terrorism may be involved – which are under the jurisdiction of the police. So, the PDRM will use their detective and policing skills while the AELB would use their knowledge and expertise in radioactive/nuclear matters. For example, while the PDRM goes around questioning witnesses, the AELB will be helping them out with radioactive detecting devices. As it turns out,.workers from a company stole 2 radiography projectors containing iridium-192 (which is the same radioactive material in the recent incident) which can be used to manufacture a dirty bomb. For reference, a dirty bomb is basically a regular bomb with radioactive elements added. It won’t create a nuclear explosion, but the radiation would contaminate an area similar to a nuclear fallout – just a lot smaller in scale and severity. Fortunately, the thieves weren’t overly ambitious when they stole the device. The iridium wasn’t exactly stolen for the iridium – It was actually stolen for the lead casing surrounding it, which the thieves sold for scrap metal after dumping the radioactive substances it contained into a trash can in Shah Alam. While it’s definitely a much better outcome than being put in a bomb, it has very deadly consequences as residents would have been at risk of radiation poisoning. At the end, the AELB advised residents to undergo blood test. To add to their busy 2017, the AELB and other agencies were called in to inspect the premises of KLIA 2 after the assassination of Kim Jong-nam, the half-brother of North Korean leader Kim Jong Un. Kim Jong-nam was believed to have been assassinated using the nerve agent VX. If you are wondering why the AELB was called in to help with a matter which involves murder, it’s because they were tasked with ensuring that KLIA 2 was safe from contamination. According to former IGP Tan Sri Khalid, there was a chance that radioactive waste could be present after the VX nerve agent was used. This is because VX works similar to a radioactive bomb (or “dirty bomb” described earlier) where it could contaminate a certain area. . The AELB makes sure that radioactive materials are in the right hands Despite the exotic (and maybe dangerous) sounding name, iridium-192 is actually a commonly used substance in Malaysia. For example, the iridium that was stolen in Klang was used for controlling the quality of the welding of pipes in the oil and gas industry. Aside from that, you’d also commonly come across radioactive substances being used in the medical industry, such as X-Ray machines. As you might expect, the AELB controls the ownership and movement of these materials in the country. Assuming that you wanted to buy some depleted Uranium rods online and found someone actually willing to sell it, you may not even be able to get it across the border. This is because Malaysia has Radiation Portal Monitoring equipment to detect any movement of radioactive materials into the country. More importantly, anyone bringing these substances into the country requires a licence. The licensing process is controlled by the AELB. In essence, the AELB determines who can deal with and own radioactive or nuclear materials. This power is given via Section 12(1)(b) of the Atomic Energy Licensing Act 1984 which states: “No person shall deal in, possess or dispose of any radioactive material, nuclear material, prescribed substance or irradiating apparatus unless he is the holder of a valid license issued by the appropriate authority for such purpose and as specified in the license.”. Even if someone managed to get a licence to own radioactive material, the AELB actually has control over how they deal with the radioactive material they own. While logic might tell you that you can freely use something you own, this doesn’t apply here. For example, the owner of a radioactive device cannot simply lend his radioactive device to his friend. There’s also a law governing how owners can transfer or discard their radioactive material. Section 26 of the Atomic Energy Licensing Act 1984 says: “No person shall dispose of or cause to be disposed any radioactive waste without the prior authorization in writing of the appropriate authority.” Although the word dispose here may seem like “throwing away”, it could also actually mean disposing it to someone else. In the nuclear world, when you own a radioactive substance and you don’t want it anymore, you cannot just throw it in the bin. You actually need to give it to those who know how to dispose of these materials properly. So, if you want to transfer or sell radioactive material to someone else...you would need authorization from the AELB. Usually, you can only transfer radioactive materials to those who have license to own radioactive materials. So if someone wants to transfer some iridium-192 to their buddy, they’ll need a licence, their buddy needs a licence...and the transfer of the material would require authorization from the AELB. This is to make sure the AELB actually knows where the radioactive materials are in the country, because these are dangerous substances which can cause harm to quite a significant section of the population. AELB is the only agency keeping us safe from radiation At the end of day, the AELB is not exactly the most famous government agency in Malaysia...but they sure are an important one. Take for example, the Fukushima incident which has potential harmful consequences. The AELB is the only Malaysian agency preventing such a thing from happening here, and in the event something goes wrong...they are there to make sure the dangers are contained. So with the knowledge that AELB has a a lot on their plate, you can assist the AELB with their current hunt for the missing radioactive device. If you have any information regarding the missing device you can contact the local police station or contact the investigating officer ASP Yong Meng Heng at 019-5753399. If you come across something resembling the device, keep a safe distance away and do not attempt to touch or move it."
"TNB stopped a power pylon project in Pahang that angered villagers. Here’s what happened Imagine living in a chalet up in the mountain forests, away from the bustling city, away from all the concrete and steel. And then one day, you wake up to find the very thing you want to avoid, right outside your chalet. A power pylon in all its power-carrying glory, except the forest isn’t fine like in the picture above, it’s more like… sand and dirt instead of trees and rivers - more like this: This was what happened near the village of Janda Baik, Pahang; where one of TNB’s power pylon projects - the 500kV Bentong South-Lenggeng Transmission Line Construction Project - went wrong and damaged the forests, causing landslides and drying rivers. The residents’ livelihoods were also affected, and they have been strongly protesting the project for a long time. Before you go around shooting nasty comments at TNB, let’s evaluate the root problem - if you’ve ever had your power cut for one day, you’d know how important it is to have an uninterrupted supply of electricity. However, until someone finds Tesla’s supposedly lost plans to wirelessly transmit electricity, we’re stuck with receiving juice through cables. And that requires pylons to channel power from the source to your house - and these pylons sometimes have to be built through forests and mountains (and sometimes close or through housing areas). But at the same time, TNB obviously can’t be given full freedom to bulldoze through everything in the name of uninterrupted power supply as it would be...an abuse of power (ba-dum pishh). In all seriousness, they can’t because... They need to pass some tests first On 14 August 2018, there was a meeting between TNB officers and Villagers Association of Janda Baik, as well as the Resort Owners Association (who have affected chalets there), up in Janda Baik itself. Representatives from the Department of Environment Malaysia, and the Forestry Department Peninsular Malaysia were also present, along with the state representative (ADUN) of Ketari herself, Young Syefura Othman. This writer decided to tag along after contacting Ashari Shuib, a committee member of the Resort Owners Association. Here’s what we learned: Undertaking an infrastructure project obviously isn’t as simple as finding a piece of land and starting construction, you’ve got to get approvals from the state government first (because they’re in charge of land administration), and you have extra processes to go through if you’re building in a forest - even more so if it’s a forest reserve. We don’t have the exact process for a company like TNB to set up an infrastructure project, but one of the things they need is an EIA and an EMP from the Department of Environment before their project proposal can be sent to the authority in charge - in this case, the State Executive Council (Majlis Mesyuarat Kerajaan Negeri - MMKN) - for approval. We’ll get to what those acronyms mean below: EIA - Environmental Impact Assessment Well, the name is self-explanatory - the EIA is a report that needs to be prepared in development projects through the Department of Environment , whether it’s mining, housing, or utility projects. It’s a planning tool that evaluates the risks to the environment of a project, and details mitigation measures to be taken. So if a project would destroy an entire forest, the EIA will raise a red flag to tell you that the project is a bad idea, so you’ll have to figure out how to minimize the environmental impact of the project before it even takes off. The thing to note about this report is that the Department of Environment is merely assessing the project and providing information to help the authorities decide whether to approve the project or not. The actual approving authority is the Federal or State Government authorities in charge, so the Department of Environment doesn’t actually have any say in the matter. You can read more about how the EIA works here. EMP - Environmental Management Plan Despite the cool-sounding name that reminds many people of “electromagnetic pulse”, which also uses the short form “EMP”, it’s actually another document that contains the plan for how the EIA’s objectives will be attained. It contains everything from short and long-term strategies, who’s in charge, how the situation will be monitored… It’s a bit like an operation manual for how the development project’s environmental impact will be managed over time. You can find more information about for the EMP works at the Department of Environment’s Guidance Document for EMPs. There’s also a sample EMP report you can look at here, as well as a skeleton for what should be included in a typical EMP report. In short, TNB would need to survey their planned power pylon alignment and go through the required processes, before submitting their proposal to the MMKN for approval. After all that, they can get a license to proceed with the construction. While it may sound simple on paper, it wasn’t as straightforward in actual application because... TNB actually went through a few options to make everyone happy Being in Pahang, TNB’s project near Janda Baik was approved by the Pahang State Government (a process that ran from 2008 up to 2017). According to what we gathered from the dialogue session, there were a few pylon alignments proposed which didn’t go through for several reasons. Alignment 1 - cuts across the border of Janda Baik, but also goes across several rivers flowing into Janda Baik Shown in pink in the diagram above. Janda Baik’s villagers didn’t like this one obviously, seeing the risks it posed to their land. TNB took this into consideration and looked for alternatives. Alignment 2 - direct route across the forests, but cuts across multiple structures This alignment goes from the start of the pink line, and cuts directly across Janda Baik, and does not go around the village. TNB explained that they did some surveillance using drones to find alternative routes. This one was the most direct, and would have saved them an estimated RM5-10 million in costs (less pylons required). But this route involved cutting across some 50 or so structures, and they have a standard practice to avoid existing infrastructure when building - so this was a no-go. Alignment 3 - alternative proposed by Janda Baik citizens Show in green in the diagram above. This one was a middle-ground suggested by Janda Baik’s citizens, that TNB took up and surveyed, but was ultimately dropped because the viable route ran too close to multiple counts of existing infrastructure, including the Karak Highway. There was also the concern of the project crossing into Selangor, which were too close to another network of rivers, but would also further complicate the project approvals. There was a big controversy on this alignment because the villagers say they know multiple ways the pylons could cross nearby a flat expanse of land and close to a farm - easier to work with than mountainous forests. We, being legal article writers and not land surveyors nor residents of Janda Baik, couldn’t verify what the lands are actually like or what are the best decisions to make. From the above, the State Government had approved Alignment 1, for reasons that were not discussed during the dialogue session we attended. In oversimplified terms, the State Executive Council told TNB to cut across Janda Baik’s border and risk damage to the environment. The EIA and EMP addressed and minimized those environmental risks, and with that in mind, the project went forward and loggers were called in the clear the land needed for the pylons. This, is where things got complicated… TNB followed the EIA, but the loggers they hired didn't Okay, legal technicality time. The problem here was that for some reason, the logging contractors working for TNB violated the EIA’s requirements, but the loggers are not subject to the EIA in the first place, it only binds TNB. So, since TNB hired the loggers, TNB should be held responsible, right? It wasn’t clear at the meeting whether TNB would actually be held responsible. But normally, you’d think of something called “vicarious liability”, under which TNB could be held responsible for the loggers’ actions, because TNB hired them (and TNB could then countersue the loggers for doing a bad job). [READ MORE - If a worker hurts you by accident in Malaysia, do you sue him or his boss?] So we had a responsibility deadlock where TNB didn’t violate any rules, but they were stuck with the consequences of the loggers’ actions (who are not bound by the EIA). Perhaps it will be decided that TNB was in fact responsible for the loggers’ conduct and will be penalized, maybe only the loggers will be punished - but we don’t know how the regulations behind that will play out for now. We’ll update with any developments when we hear them! But why was it so difficult to figure out who was at fault? The short answer is: bureaucracy. It turns out that the controls on logging activities don’t come under the jurisdiction of the Department of Environment - that’s the Forestry Department’s purview. This means that if the Department of Environment tried to intervene, they would be charged with abuse of power and be answerable to the Malaysian Anti-Corruption Commission. Even then, the Forestry Department’s role also looked like just an advisory one; the final decision still rested with the State Executive Council (MKKN) - which has already stepped down and released all responsibility (they did not send a representative to the dialogue session on 14 August 2018). So in a way, it’s hard to point the finger of blame when the hand doesn’t exist. The temporary resolution was this... As rowdy as the dialogue session got, there was a good exchange of views and concerns facilitated by ADUN Young Syefura Othman, and fortunately, a resolution was agreed upon that: TNB would pause all construction works until further notice. A committee of Janda Baik residents will convene with TNB representatives as well as ADUN Young Syefura to discuss a new pylon alignment, which will be proposed directly to the Federal Government (Parliament). TNB will resume the project only after the new approval. Restorative works would be undertaken by the Department of Environment to repair the environmental damage caused by the loggers. It’s great to see that the government is willing to listen to the people’s concerns in this manner. Whichever pylon alignment is going to get approved, it’s going to be between Malaysians getting better electricity infrastructure, and the people’s wishes will be heard - so we guess this means… Power to the People?"
"What can you do if you have been sexually harassed in Malaysia?  In every office place, there’s bound to be some dirty jokes or innuendos thrown around. Most of the time, you laugh along when it happens because you acknowledge it as office banter. However, there may be certain jokes that make you feel uncomfortable, or your boss may ‘jokingly’ ask you to share a room with him in a way that makes you want to run away from that company. Often times, you feel confused about speaking out because...does that count as sexual harassment? Sexual harassment at the workplace is a difficult thing to navigate. If you are being sexually harassed by your superior, you feel like there is no avenue for you to speak out. If it comes from a colleague, you may feel like you would be branded as a troublemaker. In both situations, you would probably feel uncomfortable or even unsafe at your workplace. With this in mind, ASKLEGAL sat down with Amirul Izzat, a lawyer attached with Donovan and Ho, who deals with employment matters – including sexual harassment – to find out more on how sexual harassment complaints can be made and how they are dealt with when it happens at work. To kick us off… What is sexual harassment? Prior to certain amendments that took place in the law in 2012, the only thing that employees could rely on is the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace. However, this Code does not have any force of law (this means that it has no legal effect) and merely lays out a guideline for companies which they can choose to follow or ignore. In 2012, the government amended the Employment Act 1955 (“EA 1955”) and came up with a new part dealing with sexual harassment. Now, section 2 of the Act defines sexual harassment as: “sexual harassment means any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment” Amirul explains that the Code also divides sexual harassment into two categories - sexual coercion and sexual annoyance: “The definition of sexual harassment under Article 4 of the Code actually divides sexual harassment into 2 categories but this Code is merely used as a guideline and has no force of law. The two categories that can be found in Article 4 are sexual coercion and sexual annoyance. Sexual coercion is sexual harassment that results in some direct consequence to the victim’s employment. For example, the victim would be offered a promotion or job benefits in return for sexual favours. On the other hand, sexual annoyance is conduct which is offensive, hostile, or intimidating to the recipient. Basically, it is conduct that creates a bothersome working environment that a recipient has to tolerate. This typically manifests between employees.” – Amirul Izzat, employment lawyer As a TLDR; sexual harassment is defined very widely and can be anything from a look, a word, a touch. Now that we’ve established the boundaries, let’s move on to next big question. How are sexual complaints investigated by companies? Section 81B of the EA states that employers have a duty to investigate into any sexual harassment complaint within 30 days from when the complaint was made. However, Amirul points out that as of now, the Employment Act does not provide a guideline as to how these investigations are to be carried out. On the other hand, Article 15 of the Code states that employers must have a separate complaint or grievance procedure to deal with sexual harassment complaints as normal procedures are unsuitable to deal with complaints of a sexual nature. However, once again, there is no exact guideline for how the separate complaint procedure is to be implemented. Basically, the EA provides the timeline for when the complaint has to be investigated but neither the EA nor the Code state how the company is supposed to deal with it. “Guidelines for the conduct of the investigation are being discussed at the Ministry level but have yet to be passed. As such, employers are currently given free reign as to dictate the process in which these complaints are being investigated and handled, so long as they adhere to the general rules of natural justice.” - Amirul Izzat The general rules of natural justice are that each party has a right to be heard – the accused similarly has a right to know who is accusing them, and they have a chance to present evidence in support of themselves. What if nothing is done or you are not happy with the decision? If you have lodged a complaint with your employer and no action has been taken, section 81D of the EA 1955 provides that a complaint can be lodged to the Director General of Labour who will then direct the employer to conduct an inquiry and then submit a report to the Director General within 30 days. In the event that the harasser is the owner of the company (like in a Sdn. Bhd.), a complaint can be made directly to the Labour Department. Click here for more information on making a complaint. On the other hand, if you are unhappy with the decision of the investigation, Amirul says that: “If an employee is unhappy with the employer’s inquiry outcome, they may file a complaint to the Director General on the sexual harassment incident, wherein the Director General may upon assessment of the complaint direct the employer to re-inquire into the complaint.” - Amirul Izzat But what if you’re still unhappy with the outcome of the new investigation, after the complaint to the Director General? If an employee is unhappy with both decisions, it is possible that the employee could deem themselves constructively dismissed on the basis that the employer has failed to provide a safe working environment and state that the investigation into the complaint was done in bad faith” – Amirul Izzat This means that you may be able to claim constructive dismissal because your employer failed to provide you with a safe environment. Constructive dismissal is when your boss does not outright fire you but because of how he acts, it might actually be an unfair dismissal. You can read more about it here. However, this is fact-dependent and you would have to check with your lawyer to find out if you would fall under this category. Will the company ensure your safety during the investigation? “Companies have to balance the need for confidentiality against the right of the accused person to defend themselves. Complaints should only be on a “need to know” basis. In some warranted situations, the company may suspend the accused employee to prevent them from interfering with the investigations / tampering with witnesses.” – Amirul Izzat, employment lawyer [emphasis added] While maximum confidentiality has to be ensured, this has to be balanced against the right of the accused harasser to defend themselves or even confront their accusers, if the complaint is deemed frivolous or done in bad faith. Amirul gave us an example where if the accused person doesn’t know who they allegedly harassed, it would make it difficult for them to defend themselves. To sum up the procedural aspects of a sexual harassment complaint, it can be said that while there are no set guidelines on how to handle a sexual harassment complaint, it must be given utmost confidentiality and must adhere to the principles of natural justice plus those who are unhappy with the decision can appeal it. At this juncture, some of you may envision that all the complainants would be women but… The law does not distinguish by gender ASKLEGAL asked Amirul if there were statistics for how many complaints came from men. Unfortunately, he didn’t have any but he did tell us that: “It is a misconception that only females are victims of sexual harassment, or that only men are the offenders. The law of sexual harassment does not distinguish by gender” - Amirul Izzat Generally speaking, many of us fall into the trap of thinking that only women are victims and only men are the aggressors. The law on sexual harassment does not make this distinguishment; it covers any sexual harassment done to any gender by any gender. To give an example of a woman as the aggressor, we have the recent 2018 case of Shamani Devi Chendra Chekheran v Shangri-la Hotels and Resorts where a woman was found guilty for sexually harassing her male superior through Facebook and SMSes. The court ruled that her postings and messages sent to him could cause sexual annoyance and the vulgar, sexually explicit words were offensive and clearly amounted to sexual harassment. To illustrate how wide the definition of sexual harassment is, these were the terms/phrases that the court ruled as sexual harassment: “thank you for signing the letters for the trip...mmmmuax!!!” “[that he was] staring at the ass [of another agent]” “U R MY UBBIE Always and FOREVER!!!” In addition to that, she had also sent messages asking her superior if he was having an affair with anyone and that she couldn’t help thinking of sex whenever she looks in her superior’s eyes. While some of us may be surprised that things like that happen, this is only the tip of the iceberg. For example, there was recent outrage over the story of medical housemen being sexually harassed by a senior doctor who attempted to kiss, hug, and laid on innuendos to his junior doctors, medical officers, and specialists. Oh, and one more thing... If all else fails, you can sue Sexual harassment has recently been made a tort in Malaysia (read more about tort law here) so you would be able to bring a civil suit for it. Aside from that, you can also lodge a police report as it is a crime under our Penal Code. If you think that you have been sexually harassed, do speak to your Human Resource Manager and/or a lawyer."
"3 legal questions about the ""arrest"" of Jho Low's ""Equanimity"" yacht - Answered! Ah… You’re cruising on the blue seas on a luxury ship, enjoying the spoils of life with a cool salty breeze in your hair. You’re relaxed, without a care in the world, off to some island you read about where you’ll go diving soon. Except, that ship is the Equanimity yacht, which was actually wanted by the US Department of Justice (DoJ) before they suspended their own legal proceedings give Malaysia the opportunity to deal with it - since the DoJ also said the yacht was bought using Malaysian government money. You probably won’t get in trouble just for being on board though, unless you’re Jho Low himself, who is wanted for his connections to the 1MDB financial scandal. What most Malaysians will find curious is that the yacht was not “confiscated” by the Malaysian government, but “arrested” instead. In fact, there was even a warrant of arrest issued by a court even we haven’t heard of before - the Admiralty court. Let’s start off with that answer and get to two more questions you might have about the legal workings behind the “arrest” of the Equanimity. 1. How do you “arrest” a yacht? We’re using the phrase “arrest a yacht” so often it’s starting to sound normal. But let us assure you, it’s not normal to arrest inanimate objects - you usually “confiscate” them. First, we’ve got to look at how Malaysia got the right to control the yacht in the first place, since it was actually being brought in by the US DoJ at first. The Equanimity came under Malaysian control through two agreements between countries, called Mutual Legal Assistance (MLA) treaties. The MLA treaty basically is an agreement between two countries to provide each other with help in criminal investigations and proceedings where they can - such as handing over a luxury yacht purchase with illegal money. Our Attorney General, Tommy Thomas, stated that Malaysia’s MLA treaties with the U.S. and Indonesia (actually a treaty with ASEAN nations) were activated to bring the Equanimity back here. [READ MORE - What does the Attorney General do?] This invoked a branch of law called “admiralty law”, which is basically the law of the sea. And one of the things you can do under it is arresting ships. You can find a summary of how our laws about ship arrests work here, but in the case of the Equanimity, we arrested it because our government is claiming it belongs 1MDB, and not Jho Low. It’s like that our court issued the warrant of arrest under Order 70, Rule 4 of our Rules of Court 2012. There was a little bit of complication before this though, because the first arrest of the Equanimity by the Indonesian authorities in February was void on technical grounds (meaning they didn’t follow the proper procedure to arrest the ship). After that, they arrested the ship again in July after receiving a request for legal assistance from the U.S. - through Indonesia’s own MLA treaty with the US, which made it a valid arrest. [READ MORE - The Low Yat ""thief"" was another ""technical error"" case] 2. How do you prove that the Equanimity belongs to the Malaysian government? The answer to this is actually pretty complicated because it involves something called a “constructive trust”. We’ve covered the basics of “trusts” in an earlier article of ours, but to put it in extremely simple terms: it’s a way the law works to protect property rights. [READ MORE - What is a “trust”?] Normal trusts are commonly formed in scenarios like where you one day declare that “I will now create a trust for my grandkids so they will be financially secure after I die”. You’d then set up a “trust fund” using your assets through the proper legal procedures so that your descendents can enjoy the benefits, but can’t do something silly like sell off your assets for a quick buck. But “constructive trusts” work differently - they’re not formed when a person says so, but when a wrongdoing has happened - like if someone stole your money and bought something with it. This is a workaround that English law invented because there were issues when someone stole money and went to buy something else with it, like a car. Without the concept of a “constructive trust”, there were 3 major problems with the law before that: That person stole cash from you, but he now has no cash after buying the car You also can’t take the car from him - because he owes you cash, not a car The legal registration of the car is to his name, not yours The “constructive trust” was created to prevent this kind of injustice, which made sure that the person who stole your money has a “constructive trust” in your favour - think of it as the guy safekeeping the car for you. So, if Jho Low really bought the Equanimity using the Malaysian government’s money, the law creates a “constructive trust” which makes sure that the yacht will still belong to the Malaysian government. In legal speak, we say that Jho Low will hold the Equanimity “on trust” for the Malaysian government. Of course, you would still have to prove that the money was in fact taken illegally, like through following a paper trial of transactions - this process is called “tracing”. 3. Is the Malaysian government even allowed to sell the yacht? According to The Star, Attorney General Tommy Thomas has stated that the sale is allowed under maritime laws. We’re not exactly sure how maritime law is involved, as sources for it are also pretty difficult to get a hold of - so all we know for now is based on news reports The Star further notes that the government has started legal proceedings to sell the Equanimity, where the Malaysian government and some 1MDB-linked companies are asserting ownership over the yacht. “We, the plaintiffs, assert that the yacht is in constructive trust to us, because our monies were used. “Of course, if and when there’s a contest by Jho Low or anyone else, they will have to assert that it’s theirs,” - Tommy Thomas as quoted by The Star The AG has said that the ship can be sold even before the litigation clears up, because it’s permitted under admiralty law. If there’s a “real owner” of the Equanimity, they’re supposed to come forth and assert their ownership at this point, but, even if the Equanimity really belongs to someone else, it’s still fair (enough) for them because they can still claim the monies gotten from the sale. One lawyer has also commented on how the legal proceedings would go for the sale of the yacht. Both the Attorney General and the lawyer did not mention any legal sources for reference though. We’ll be looking out for updates and are also waiting to hear from our lawyer friends for further clarification. Got more questions about the case? Ever had that feeling when a legal issue comes up in the news and there’s a big hoo-hah, but you don’t really know what’s really going on because you don’t know the law behind it? A lot of people were puzzled by what went on during Najib Razak’s arrest as well, and had questions, which we’ve answered in this article below. [READ MORE - 5 legal questions you might’ve had about Najib’s arrest - answered!] If you have any legal questions about how the law behind the Equanimity’s arrest works, send them to us through our Facebook page (or in the article comments), and we’ll do our best to answer them!"
"5 things you can claim if you get into a traffic accident in Malaysia Usually when an accident happens, you’d end up doing one of two things – either making a police report and filing an insurance claim, or settling privately with the other driver. However, these usually only apply when the damage is to the car itself. If other circumstances come into play – say if you were injured and unable to work, then you might have to take the case to court. So let’s say you were involved in such a scenario, and the court actually agrees with your side of the story and it is the other guy’s fault. You want some money because he has caused you some losses. So, what can expenses can you legally claim? Before we go to the 5 things you can claim, it should be worth knowing that you can only legally claim those expenses which was directly caused by the accident. So, let’s say the accident damaged your car, but your car radio is working fine, you cannot later claim for a new Kenwood radio. We’ve also updated this article with answers to some questions regarding the recent RapidKL incident, where a bus hit a number of vehicles along Jalan Ampang while being chased by motorcyclists. So back to the main point, the things you can legally claim are as such... 1. Medical expenses If let’s say you suffered injuries from an accident and you went for treatment at a government hospital, the law says you can claim for those expenses. In the case of Chai Yee Chong v Lew Thai (2004) which concerned a victim who suffered injuries from a work accident, the court stated that treatment received in a government hospital can be claimed. However if treatment was received in a private hospital, the court stated that the victim must justify it. So for example, if let’s say the treatment you require is not available in a government hospital, you can claim for the treatment you received in a private hospital. In addition to claiming medical expenses in a government/private hospital, you actually can claim for expenses incurred from receiving traditional medicine treatment. The case of Seah Yit Chen v Singapore Bus Company(1978), concerned an accident victim who sought traditional medical treatment. When deciding if the victim could claim such expenses, the court stated that traditional medicine can be claimed provided that it was sought upon reasonable advice. So for example, if your medical doctor told you that you can go for acupuncture to cure the sore muscles from an accident, the court would probably allow you to claim it. 2. Cost of care Let’s say your accident has left you in a condition where it is difficult to take care of yourself. You may need someone to take of care of you, and you may also need some degree of supervision. To claim for cost of care, you have to show that cost of care is required as decided in the case of Yang Salbiah & Anor v Jamil Bin Harun(1981). In this case, the victim was left in a vegetative state after a bus accident. The court required that the victim show evidence that she needed nursing care. So let’s say you broke your pinky in a car accident and you hired a nurse to look after you, you probably would not be able to claim cost of care. However if you are paralyzed from the waist down, you probably have a proper chance of being awarded cost of care. So, let’s say you didn’t hire a nurse or a caretaker. Let’s say you have a family member willing to look after you instead for free, can you still claim since you are not spending a single cent? The answer is yes! In the case of Housecroft v Burnett(1986), the court actually allowed a wife to claim money for the care provided by her husband. How would the court quantify such an amount? They decided to use the market value of such care. The next question now would be, how long can you claim for cost of care? So let’s say you need 5 years to recover, you can claim the cost of care 5 years. However in situations where someone needs care for the rest of his life, reference should be made to the case of Bujang Bin Mat v Lai Tzen Hai(2004). In this case, a formula was given by the court as follows: (Life expectancy) - (Age at the time of accident) ÷ 3 So, if let’s say the court decides your life expectancy is 70 and you were 40 during the accident, you can claim cost of care for the following years: (70 – 40) ÷ 3 = 10 years 3. Loss of future earnings As mentioned earlier, sometimes an accident may result in an injury so serious that you cannot work for sometime, or forever. You need a salary to survive, so can you claim money for the damages? The answer is yes, but there are certain conditions to satisfy. First, as stated in Section 28A of the Civil Law Act 1956 you must be under 55 years old. Meaning, if you are 56 the claim would fail. In the same section, you have to in good health before the accident. Meaning, you should not have any medical conditions before the accident which would have caused you to lose your job anyways. Finally, the same section says that you must have been receiving earnings by your own labour or gainful activity. Meaning, you cannot be an Ah Long and then claim for the losses of not being able to make money from illegal loans. So once you have satisfied these 3 requirements, the amount you can claim is of course the salary you have been receiving during the time of the accident. However the case of Tey Chan & Anor v South East Asia Insurance Bhd(1993), stated certain deductions must be made. Here, the court deducted expenses incurred in earning the income. So let’s say you are earning RM3000/mth, the court will deduct the money you have used for parking, fuel, etc(stuff you spend to go to work and stay at work). Finally the next important question would be, how many years/months worth of salary can I claim? If your injury caused you to stop work for 2 years, you can claim for those 2 years. But, as mentioned earlier you can have an injury which lasts for a lifetime. In such cases reference must be again made to Section 28A, which says that it would all depend on your age. If you are below the age of 30 at the time of accident, you can claim 16 years worth of salary. However, if you are between the ages of 31 and 54, a formula would apply: (55 - age during accident) ÷ 2 So if let’s say you were 40 during the accident, you can claim for salaries lost for the following number of years: (55 - 40) ÷ 2 = 7.5 years 4. Pain and suffering It is common knowledge that the injuries caused by an accident can actually result in pain. Though it may be tough to quantify pain and suffering, the courts have done it before. In the earlier mentioned case of Yang Salbiah & Anor v Jamal Bin Harun, the court awarded RM70000 to the victim who suffered abrasions, contusions and ended up in a vegetative state. It was also stated in the same case, that you can only claim for pain and suffering while you are conscious. I mean, you can’t feel pain if you are not conscious right? 5.Property damage If you do get into a car accident, there is a 99.99999% chance that your car would get damaged too. Sometimes, like in the case of Motor & General Insurance Sdn Bhd & Ors v Pok Siong Kok & Ors(1988) your insurance may compensate you lesser than expected. In such cases, how would the court quantify such matters? In Pok Siong Kok, the victim’s car suffered a total loss, and the court awarded him with the market value of the car at the time of the accident. To illustrate, let’s say you bought a brand new Axia. 2 years later, you meet with an accident and your car suffered a total loss. The court will award you the price of a 2 year old Axia. Update based on the recent RapidKL bus incident We’ve had some readers asking how the incident involving the RapidKL bus would affect damage claims. While we can’t comment specifically on the incident itself (as it’s still being investigated) we’ve included two scenarios to address the questions above – basically what you can do if the vehicle doesn’t belong to the driver that hit you, and what happens if the driver of the vehicle that hit you is unconscious or passes away. You can get the driver’s boss to pay up This may not apply in every scenario but, if the vehicle that hit you belongs to a company or someone running a business, you can claim the damages from the company itself. However, the catch is that you can only do this if the accident occurred while the driver was on duty/working. An example of a scenario where this would be applicable is where there your car gets hit by a delivery van while the van is doing deliveries. The law which allows such a claim is called vicarious liability. The concept allows the boss of a negligent worker to be liable for the carelessness done by the worker during the course of his work. [READ MORE: If a worker hurts you by accident in Malaysia, do you sue him or his boss?] Things are again slightly different of you were to be hit by an ambulance or a government vehicle, which we’ve individually covered in the articles below: [READ MORE: Who do you sue if a police car hits you?] [READ MORE: Who do you sue if an ambulance hits you?] You can still make a claim, even if the driver passed away or goes into a coma While this may bring about questions of morality, respectfulness, or being considerate; these are perhaps best left for the people involved to decide on. From the legal perspective itself, you can actually get compensation from the person who caused the accident even if the above happens. Let’s start off with what happens if the person passes away According to law, although a person is dead, their estate survives. The estate is basically the properties and rights of the deceased. Under Section 8(1) of the Civil Law Act 1956, you can still take or continue a civil suit against a deceased person. However, there is a time limit – You would have to start suing 6 months after the grant of representation has been extracted. This would be when the court gives someone the legal right to administer the estate. So once you have started the case within the time limit, you can sue the estate as per normal and claim all the things mentioned earlier. In a situation where someone dies as a result of getting hit, the reverse is also possible: [READ MORE: If a careless driver killed someone, can the victim's family sue for financial support?] In the event the person who caused the accident didn’t die but fell into a coma instead, you could still make a claim. While there are several ways this can be resolved, a more common scenario would be that the family may have to appoint a representative (usually also a family member) who will then hire a lawyer on behalf of the comatose driver. Try not to get into an accident, but if you do... In essence, we can see that the Malaysian court system is quite fair when it comes to compensating victims of a traffic accident. Victims are clearly able to get compensation for almost all expenses they incur due to the accident. This shows the court’s effort to return victims to the position as if the accident never happened."
"If you win a lawsuit in Malaysia, how do you make sure you get paid? Unfortunately, your neighbour had the sudden desire to become a master violinist. To further add to your misery, he practices after 10pm and his vionin-ing sounds like a cat being dragged through a sea of angry dogs. You did what you must, and sued him to stop and get damages for the suffering of having to listen to his awful violin (more like violent) rendition of ‘Despacito’. You went through the harrowing process of hiring a lawyer and a trial... and you won! [READ MORE: How do you even start suing someone in Malaysia?] So now your neighbor not only has to stop annoying you with his music, but he also has to pay you money in compensation. At the same time, you should know that just because the judge declares you the winner of the case and hits his gavel, it does not mean the money will be directly transferred to you. The person you sued has to actually pay up, or you have to take steps to get him to pay up. So, here are some of the methods to get your money... 1.You can take the defendant’s stuff and sell it off One method to get your money, is to get permission from the court to claim certain properties of the defendant and then sell it off. This method is known as a Writ of Seizure and Sale (WSS).So how do you get your money this way? You can apply for a WSS via Order 45 Rule 12(1) of the Rules of Court, which states: “(1) A writ of seizure and sale shall be in Form 84 (for movable property) or Form 85 (for immovable property).” The WSS would then command the PDRM (known as the Court Sheriff) to seize and sell the property of the defendant, and then the proceeds would go to you. In essence, how this works is….let’s say the person you sued has valuable belongings in his house (ie jewellery), the sheriff would come in and seize it and then you can sell it off. 2. If someone owes him money, you can collect that debt Let’s say that you sued Ali and won. You know that Abu actually owes Ali some money. You can actually compel (or force) Abu to pay that money to you instead of to Ali. You can do so via a procedure called Garnishee Proceedings. This is governed by Order 49 Rule 1(1) of the Rules of Court which states: “...any other person within the jurisdiction (who is referred to as “the garnishee” in this Order), is indebted to the judgment debtor, the Court may, subject to the provisions of this Order and of any written law, order the garnishee to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor from the garnishee, or so much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.” This method of enforcement can also be used when a defendant has money in a bank account, and you would wanna direct the bank to pay you that money. There are however some prohibitions which apply. One of it is you cannot take up garnishee proceedings against the government. So let’s say you sued Daniel and won. The government owes Daniel some money for a project he did for the government. You cannot compel the government to pay the debts to you. This prohibition is laid out in Section 35 of the Government Proceedings Act 1956. Also, in Raymond Michael v D&L Finance Bhd the winner of the case tried to garnishee the salaries of the person he sued. However, the court decided the winner of a case is not allowed to initiate garnishee proceedings against salaries/wages. 3.You can sell the defendant’s shares and take the money This method is known legally as a Charging Order. Let’s say the defendant you sued owns some shares in a company. You can actually charge the shares. This would mean that, the defendant cannot actually do anything with those shares until he has paid your debts. If let’s say he does not pay your debts within 6 months, you can ask the court to sell those shares for you and take the money. This works similar to a charge on your house after taking a bank loan to buy your house. The bank places a charge on your house and then if you stop paying, they can ask the court to sell off your house and take the money. 4.If all else fails, you can initiate bankruptcy proceedings If it is still difficult to get your money using the methods mentioned previously or the proceeds you got is not enough, you may be able to initiate bankruptcy proceedings. This is of course assuming the defendant cannot cover his debts or he committed an act of bankruptcy. Before you start calling up your lawyer to declare the person you sued a bankrupt, the sum owed to you should be at least RM50,000. In addition to that, there are certain procedures you have to follow before the court can actually declare the debtor as a bankrupt. Once those procedures are followed and the debtor still cannot pay his debts, then the court may declare the debtor as a bankrupt. Once the defendant is declared a bankrupt, the Director General of Insolvency(DGI) will have control of his properties, which will be used to pay of the defendant’s debts. But you have to understand you may not get all your money, as the DGI will have to use the properties to pay other creditors (people the debtor owes money to). You can read more about bankruptcy in another of our articles below. [READ MORE: How does bankruptcy proceedings work in Malaysia] But, don’t wait too long! It is best advised that you don’t dilly-dally trying to get your money. The law wouldn’t protect your rights if you choose to “sleep on your rights”. You should know, there is a time limit if you want to enforce the court’s judgement. This means, you gotta get that money within a certain time period. Section 6(3) of the Limitation Act suggests that, after 12 years you are time barred from enforcing the judgement (ie cannot suddenly force the defendant to pay up). Even if you don’t wait as long as 12 years, waiting 6 years or come with problems. Firstly if you wait 6 years, you cannot straightaway get your money, you must ask the court for permission to enforce your judgement. So if you need to get your money, hurry up."
"In the 1960's, this Malaysian scholarship student found a loophole to escape his bond... Let’s start with a sad fact of life – nothing comes free (except your mama doing your laundry). For example, if you are a student who took a PTPTN loan, you would be required to pay it back. On the flip side, lucky kids who snagged a scholarship would usually be required to work x number of years with the company/body/government who gave you that scholarship in order to pay them back. This is known as a bond. While job safety is a great thing to have in this economical climate, sometimes the bond might be restraining us from greener pastures so we find ways to break the bond but can’t seem to ever find a loophole out of it. But back in 1960s Malaysia… One guy found an epic loophole Let’s first take you guys back to the heyday of P. Ramlee movies and coincidentally, the time a young Malaysian was sent off to complete his education, courtesy of the Malaysian government. Back in the 60s, a young fella by the name of Gurcharan Singh was given a scholarship contract by our government. The terms of the contract was that in return of the government sending young Gurcharan to be trained in the Malayan Teachers’ Training Institution, he would return and work for the government for 5 years. We would like to highlight that the judgment did not mention Gurcharan’s age but from the arguments presented, we deduced that he was a minor at the time of signing the contract with the government. Gurcharan ended up being sent to England for his training (hang on to this nugget, it is important later on) and upon his return, he served the government for 3 years 10 months before resigning. This meant that there was a balance of 1 year 2 months which was unserved, contrary to their initial agreement. The government then sued Gurcharan for $11,500 for his training. The $ sign is used because our dear old RM didn’t come into existence until 1993. In his defence, Gurcharan argued that firstly, the contract entered into between him and the government was void on the basis that he was still a minor at the time of contracting. In the alternative, he also argued that in the event the contract is valid, the claim for $11,500 was excessive because he had served the government a substantial portion of what was agreed on. A minor is basically legal speak for children and the age of majority (adult) is above 18 years old in Malaysia through the Age of Majority Act 1971. If you are brushing this off as a “the court will always side with the government”, we have news for you… He actually won that argument To give some background before we delve into this rather ingenious argument, the law recognises that parties are free to contract for whatever it is in howsoever a way. With this being said, there are certain things that are illegal to contract for example, if you enter into a contract to murder someone, that contract would be void. Other examples include contracting for something that is impossible to perform or contracting with those who are mentally incapable of entering into contracts. For the purposes of today’s storytelling, let’s focus on those who are mentally incapable. Legally speaking, mental capacity refers to the capacity to enter into contracts and the law deems that those who don’t posses such mental capacity would be those who are mentally disabled or...children. Section 11 of the Contracts Act 1950 (“CA 1950”), it says: “Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.” Section 11 basically means that children are not competent to contract. Any contract entered into with a child is automatically void i.e the law will not recognise its existence. We know that the penny is furiously dropping for all you guys out there who are struggling with student loans and/or bonds but before we all get too excited and tell the gomen to suck it, let’s take a look at what happened in that court case because, while he may have won that argument... He lost another argument Aside from the argument given above, there was actually another point for the judges to consider. The argument here is that the scholarship contract is a contract to provide necessaries for a minor. To explain this argument, let’s take a look at section 69 of the CA: “If a person, incapable of entering into a contract, or anyone whom he is legally bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person.” The general rule is that any contract made with minors is void but an exception to this rule is when the contract is to provide the minor with necessaries. What is defined as a necessary depends on the situation. Food would definitely be necessary but a fancy waistcoat might not be. In reference to an old English case of Chapple v Cooper, the judge saw fit to define education as a necessity. Therefore, when the government argued that the scholarship contract is one to provide necessities, the judge agreed with them. However, the battle is not over yet because Gurcharan argued that while education may be a necessity, sending him to England was excessive. Remember how we told you that the contract was entered into to send Gurcharan to the Malayan Teachers’ Training Institute but he was sent to England instead? This was the basis for him arguing that the action was excessive because he could have been similarly educated locally. However, the judge disagreed and said this: “In this connection, I am of the considered opinion that the decision to send the infant to England and not to a local training institute does not, per se, take the provision out of the class of necessaries. The decision that was taken was - undoubtedly made on a variety of factors, for example, availability and suitability and in the absence of any evidence that pearl or diamond buttons were supplied, I find myself unable to accept the contention of learned Counsel for the defence.” – Justice Chang Min Tat, High Court Ipoh [emphasis added] There were more technical arguments that were considered such as how the liability wasn’t contractual based but based on statute through section 69 and the courts also considered the liabilities of Gurcharan’s sureties but to avoid confusion, we will stick to the bare bones of it. So in a tumultuous turn of events, the government won the case but they were not awarded the full amount they claimed because the courts reasoned that as Gurcharan had already spent about 3 years working for them, the government could only get back an equivalent portion of what they had spent on educating him (about $2,300). If some of you guys are reading this and thinking that you could cheat the system better, we hate to bring you more bad news because… The law is now different Specifically, new amendments were added to the Contracts Act through the Contracts (Amendment) Act 1976 where section 4 provides that: “Notwithstanding anything to the contrary contained in the principal Act, no scholarship agreement shall be invalidated on the ground that- (a)the scholar entering into such agreement is not of the age of majority...” This means that you can no longer use the argument of being an “infant” to avoid performing your end of the contract for scholarships. In addition, section 5 also sets out the exact amount that you would be liable for in the event you breach the contract. Well, folks. At the end of the day, if you budding scholars want to use this argument, we’re sorry to tell you that the scholar ship has sailed."
"What can you do if your Malaysian developer abandons your property? Buying a house is never an easy decision. It’s a lot of research, money, time, and that ultimate leap of faith to plunk down tens of thousands for a downpayment. It’s worse when you are buying a brand new home from a developer because you have to wait a few years before you get the keys to your property. Plus, buying from a developer involves a major leap of faith because you have heard tons of horror stories about abandoned projects and thieving developers. With that in mind, Malaysian law has stepped up to create laws that would protect buyers who buy houses from developers. There are many safeguards that have been created for home purchasers and we will be covering one right per article. To kick things off, let’s take a look at how… You can “kill” the contract if the developer doesn’t work Drawing its roots from Terminator-esque movies, section 8A of the Housing Development (Control and Licencing) Act 1966 (“HDA 1966”) reads as follows: “Notwithstanding anything contained in any agreement, a purchaser shall at any time be entitled to terminate the sale and purchase agreement entered into in respect of a housing development which the licensed housing developer is engaged in, carries on, undertakes or causes to be undertaken if — (a) the licensed housing developer refuses to carry out or delays or suspends or ceases work for a continuous period of six months or more after the execution of the sale and purchase agreement; (b) the purchaser has obtained the written consent from the end financier; and (c) the Controller has certified that the licensed housing developer has refused to carry out or delayed or suspended or ceased work for a continuous period of six months or more after the execution of the sale and purchase agreement.” Breaking down that immensely long paragraph, it basically says that if you have purchased a house from a developer who has failed to carry on construction for at least 6 continuous months, then you would be allowed to terminate the contract provided that you fulfil two requirements. The first is that you must obtain a written consent from the end financier (the bank that gave you the loan) and the Housing Controller must certify that the developer has refused to carry out construction for at least 6 months. The purpose of creating this unilateral right of termination is to ensure that you, as a purchaser, would be able to avoid getting trapped with continuing a contract which wasn’t being upheld by the purchaser. It basically avoids the scenario where purchasers would have to continue paying for their housing loan despite the development being abandoned. However, as a purchaser, having this right is important but what is more important is whether you would get back the money you have paid. Anything paid to the developer is 100% returnable The good news is, unlike the usual termination of contracts, a termination of a sale and purchase agreement under section 8A entitles you to a full refund. “In the event that the purchaser exercises his right to terminate the sale and purchase agreement under subsection (1), the licensed housing developer shall within thirty days of such termination refund or cause to be refunded to such purchaser all monies received by the licensed housing developer from the purchaser free of any interest.” Basically, the developer must refund you everything you have paid because of the sale and purchase agreement, without deducting any interest, and it must be done within 30 days. A failure on the developer’s end would mean that they have committed an offence under section 8A(5) and they can be punished with a fine up to RM250,000. Some of you may think that having this right down in the law is kinda pointless because you know that if the developer doesn’t develop, it’s a breach that you can sue on anyway. However, having this down in writing makes things clearer and gives homebuyers a definite right to rely on when faced with such difficulties."
"Apa akan terjadi dengan wang anda jika bank di Malaysia dirompak atau jatuh muflis? [Artikel asal dalam Bahasa Inggeris. Click here for English version] Tembak menembak! Orang menjerit sana sini! Juruwang bergegas mengisi wang ke dalam beg! Pergh...ini dah macam cerita Polis Evo 2 (eh kejap!). Apa-apa pun, kalau kita dah banyak tengok filem aksi, kita mungkin dah arif bagaimana rompakan bank berlaku. Di Malaysia lazimnya perompak guna parang, bukan pistol, tapi kesudahannya tetap sama. Lagipun tengok sahaja baru-baru ini, apabila seorang lelaki melangkah masuk ke dalam bank dan, dengan bersahaja, mengambil keluar RM600,000 selepas mendakwa yang dia seorang juruteknik. Tak perlu keganasan. Lagi ‘cool’ kalau boleh buat macam Ocean’s 11. Jikalau bank dirompak, mereka takkan ‘tutup kedai’. Yang lebih menakutkan adalah jika bank jatuh muflis. Dan walaupun kebarangkalian ini berlaku amat rendah, ia pernah berlaku di negara lain dan juga di Malaysia. Apabila sesebuah bank menunjukkan tanda-tanda ia dalam kesusahan dan orang awam mendapat berita mengenainya, maka ‘bank run’ akan berlaku. Bank run merupakan situasi di mana kesemua orang yang mendepositkan wang mereka di bank tersebut cuba untuk mengeluarkan wang beramai-ramai sehingga bank tersebut tidak dapat menampung permintaan mereka. Ini pernah berlaku di Malaysia pada tahun 1999 di mana pelanggan MBf Finance cuba mengeluarkan wang berjumlah RM17 billion dan Bank Negara terpaksa membantu bank tersebut. Artikel ini tidak bertujuan mengajar anda cara-cara merompak bank dan melepaskan diri tanpa dikesan (kalau penulis artikel ni tahu macam mana, dah lama dia buat lepas tu beli bot mewah dan lari pergi Bahamas daripada buang masa duduk kat pejabat tulis artikel demi artikel), tetapi artikel ini akan cuba menjawab persoalan yang tidak terlintas di fikiran kita semasa menonton filem aksi merompak bank – adakah pelanggan yang telah mendepositkan wang mereka ke dalam bank yang dirompak atau muflis mendapat pampasan? Kalau anda semakin bimbang, jangan risau kerana kita di Malaysia ada Perbadanan Insurans Deposit Malaysia (“PIDM”). Mereka ini memang hebat kerana... PIDM akan memberikan anda wang jika apa-apa yang tidak diingini terjadi kepada bank anda. PIDM berfungsi di bawah Akta Perbadanan Insurans Deposit Malaysia 2011 (“PIDM 2011” – tiada versi BM rasmi) dan bertindak dalam memastikan kestabilan kewangan dengan menginsuranskan wang deposit anda. Ini bermakna jika wang anda hilang kerana bank anda dirompak atau jatuh muflis, PIDM akan membayar balik duit yang telah anda depositkan ke dalam bank tersebut. Namun ada beberapa perkara yang harus anda faham berkenaan skim insurans PIDM ini. Yang pertama adalah anda tidak perlu berbuat apa-apa untuk mendapatkan insurans ini. Berlainan dengan skim insurans kereta, rumah, kesihatan dan lain-lain, PIDM menjamin wang deposit anda secara automatik sejurus selepas anda memasukkan wang tersebut ke dalam bank ahli PIDM. Jadi apa maksud bank ahli ini? Seksyen 36 PIDM 2011 mengatakan bahawa bank ahli adalah bank yang dilesenkan di bawah salah satu dari empat Akta di bawah: Akta Bank dan Institusi-institusi Kewangan 1989 Akta Bank Islam 1983 Akta Perkhidmatan Kewangan 2013 Akta Perkhidmatan Kewangan Islam 2013 Rata-ratanya, semua bank yang beroperasi di Malaysia adalah bank ahli. Ini termasuk bank luar negara yang beroperasi sebagai anak syarikat di Malaysia (kalau bank anda adalah bank luar negara yang mempunyai cawangan di Malaysia, maka mereka berkemungkinan adalah bank ahli). Jika anda tertanya-tanya jika bank ini boleh melucutkan keahlian mereka, maka jawapannya adalah tidak. Bank yang telah diberi lesen di bawah salah satu dari empat Akta di atas telah pun menjadi ahli sejurus selepas mereka diberi lesen. Seksyen 36 PIDM 2011 (sebahagian; tiada versi BM rasmi): “...yang dilesenkan di bawah Akta Bank dan Institusi-Institusi Kewangan 1989 [Akta 372], Akta Bank Islam 1983 [Akta 276], Akta Perkhidmatan Kewangan 2013 atau Akta Perkhidmatan Kewangan Islam 2013 selepas mula berkuatkuasanya Akta ini, hendaklah disifatkan sebagai suatu institusi anggota dari tarikh ia diberikan lesen.” – Diterjemah oleh ASKLEGAL Jadi anda tidak perlu bimbang tentang senario di mana bank anda cuba melucutkan keahlian PIDM mereka secara senyap dan kemudiannya anda tertipu kerana tidak mendapat pampasan PIDM apabila mereka jatuh muflis. Muncul pula persoalan penting yang anda semua pastinya tertunggu-tunggu jawapannya... Berapa nilai pampasan saya? Jawapan: Satu perempat juta ringgit! Ya, anda boleh diberi pampasan sehingga RM250,000. Nampaknya semua pembaca dah mula terbeliak memberi tumpuan, tetapi tunggu ya, kita kena lihat aspek teknikalnya. Perkara pertama yang perlu anda tahu adalah wang deposit dijamin sehingga RM250,000 bagi setiap pelanggan bagi setiap bank ahli. Ini termasuk wang deposit dan faedah yang anda mungkin peroleh. Contohnya, jika jumlah deposit anda adalah RM250,000 dan faedah terkumpul pula adalah RM30,000, jumlah maksimum yang boleh anda terima sebagai pampasan PIDM adalah RM250,000, bukannya RM280,000. Namun jangan risau jika akaun anda berasingan dalam bentuk akaun biasa dan akaun perbankan Islam, kerana jumlah had pampasan adalah berbeza. Ini bermakna jika anda memasukkan RM250,000 ke dalam akaun biasa dan RM250,000 ke dalam akaun perbankan Islam, anda akan diberi perlindungan insurans sebanyak RM500,000. Ini terkandung di dalam seksyen 42(1) PIDM 2011: “...secara berasingan menginsuranskan kategori deposit yang berikut yang diletakkan dengan institusi anggota: (a) deposit Islam; dan (b) deposit konvensional.” Selain itu, jika anda jenis yang menyimpan wang di beberapa bank, senyumlah sedikit kerana had pampasan adalah berasingan bagi setiap bank. Ini bermakna jika anda menyimpan RM 250,000 di Bank A, RM150,000 di Bank B dan RM150,000 di Bank C, maka anda akan dijamin oleh insurans deposit PIDM dan akan dibayar pampasan sejumlah RM550,000 jika ketiga-tiga bank anda dirompak atau jatuh muflis sekali gus. Tetapi, deposit berasingan di cawangan berlainan untuk bank yang sama akan dikira bersama dan jumlah maksimum yang boleh anda tuntut dalam kes ini adalah RM250,000 (kalau ada hati nak tipu sistem, jangan ya). Jika anda seorang jutawan dan memiliki ratusan ribu di dalam bank dan ingin membeli insurans tambahan untuk deposit anda, sayangnya anda tidak boleh berbuat demikian. Dalam kes ini, jika bank anda jatuh muflis, anda boleh cuba menuntut wang dari pihak yang akan membubarkan aset bank (Liquidator - pihak yang dilantik untuk mengagihkan aset syarikat yang jatuh muflis kepada si pemiutang). Jika anda memiliki akaun bersama dengan ahli keluarga atau ada membuka akaun lain seperti akaun perniagaan di bank yang sama, PIDM memberi perlindungan yang berasingan kepada akaun-akaun tersebut. Ringkasnya, akaun deposit yang dilindungi secara berasingan adalah: Akaun bersama (Joint Account) – Akaun bersama mendapat perlindungan insurans deposit secara berasingan asalkan rekod bank ahli menyenaraikan nama pemegang-pemegang akaun. Akaun amanah (Trust Account) – Benefisiari kepada sesuatu amanah mendapat perlindungan insurans sehingga RM250,000 daripada akaun amanah tersebut JIKA pemegang amanah (“trustee”) menyenaraikan kepentingan mereka dengan amaun yang dihutang kepada mereka dalam rekod bank. Amaun ini adalah berasingan daripada insuran yang melindungi deposit individu mereka. Akaun perniagaan milikan tunggal, perkongsian, praktik profesional dan akaun syarikat. Contoh ini menjelaskan perlindungan insurans deposit secara berasingan bagi pendeposit yang memegang beberapa akaun dalam sesebuah bank ahli: Jika anda keliru dengan contoh di atas, inilah penjelasannya. Contoh di atas menunjukkan bahawa Ahmad ada lima akaun berasingan di dalam satu bank. Jenis akaun merangkumi akaun simpanan persendirian, dua akaun bersama, satu akaun perkongsian dan satu akaun perniagaan. Oleh kerana PIDM membenarkan tuntutan berasingan untuk jenis-jenis akaun di atas dan Ahmad memiliki lima akaun berbeza, maka dia akan diberi perlindungan sebanyak RM250,000 untuk setiap akaun. Adakah ini bererti anda dilindungi dari semua aspek? Tidak semestinya. PIDM 2011 menyatakan bahawa produk yang dilindungi di bawah skim insurans deposit dan produk yang tidak dilindungi olehnya. Ini dinyatakan di bawah seksyen 41 PIDM 2011 (agak panjang juga ya, jadi boleh skip untuk penjelasan yang lebih mudah): “...termasuklah— (i) suatu draf bank, cek kembara, surat kredit bayar dahulu, kiriman wang atau surat cara lain yang seumpamanya… (ii) cek atau surat cara atau arahan lain yang seumpamanya... (iii) deposit mata wang asing; atau (iv) apa-apa liabiliti atau surat cara kewangan sebagaimana yang ditentukan oleh Perbadanan, tetapi tidak termasuk... (A) suatu deposit yang tidak kena dibayar di Malaysia; (B) suatu deposit pasaran wang; (C) suatu deposit surat cara boleh niaga dan apa-apa deposit pembawa yang lain; (D) suatu perjanjian beli semula; (E) suatu deposit yang kena dibayar oleh anggota penerima deposit dalam perjalanan perniagaan perbankan Labuannya yang dijalankan di bawah Akta Perkhidmatan Kewangan dan Sekuriti Labuan 2010 [Akta 704] atau perniagaan perbankan Islam Labuannya yang dijalankan di bawah Akta Perkhidmatan Kewangan dan Sekuriti Islam Labuan 2010 [Akta 705]; dan (F) apa-apa liabiliti atau surat cara kewangan yang lain sebagaimana yang ditentukan oleh Perbadanan; Apa benda ni? Jangan bimbang, Asklegal kan ada. Di bawah adalah senarai produk yang dilindungi dan yang tidak dilindungi: Apa yang dilindungi: Akaun simpanan dan semasa Deposit tetap Deposit mata wang asing Produk berstruktur konvensional yang prinsipalnya dijamin Akaun deposit Islam Draf bank Cek Arahan atau instrumen pembayaran lain yang dibuat terhadap akaun deposit. Apa yang TIDAK dilindungi: Produk berstruktur konvensional yang prinsipalnya tidak dijamin Deposit yang tidak boleh dibayar di Malaysia Deposit pasaran wang antara bank Instrumen deposit boleh niaga (NIDs) Deposit pembawa lain Perjanjian pembelian semula Produk pelaburan Unit amanah Akaun berkaitan emas Juga adalah lebih baik jika anda bertanya bank anda jika jenis deposit dilindungi oleh mereka. Menurut PIDM, bank ahli mesti memberitahu anda jika deposit anda layak mendapat insurans sebelum anda berurusan dengan mereka. Bank juga harus memiliki senarai lengkap produk yang layak mendapat insurans deposit dan ianya mesti dipaparkan di premis mereka. Sebagai contoh, lihat senarai yang dipaparkan di laman Maybank di sini. Bank di Malaysia memang selamat tetapi.... … tak salah juga kalau anda ingin mengambil langkah-langkah berwaspada. Langkah yang paling mudah adalah melalui pempelbagaian (diversification); sama ada dengan bank, jenis produk yang anda pilih, ataupun jenis pelaburan. Pempelbagaian akan melindungi pelaburan dan kewangan anda jika sesuatu yang tidak diingini berlaku, jadi anda tidak perlu risau jika salah satu daripadanya mengalami kemerosotan. Anda harus ingat bahawa anda tidak perlu membuat tuntutan jika bank anda jatuh muflis di Malaysia kerana pihak PIDM akan membuat pengumuman mengenai cara-cara membuat tuntutan. Anda boleh melawat laman PIDM di sini atau menelefon mereka melalui talian 1-800-88-1266 untuk mendapatkan keterangan lanjut. Selamat maju jaya dan mulai sekarang jika anda sibuk berbincang dengan rakan-rakan anda mengenai siri rompakan bank yang terbaru di Malaysia, anda bolehlah berlagak sedikit dengan pengetahuan kewangan yang anda peroleh dari kami di sini."
"3 ways Bank Negara controls our economy that you probably haven't heard of Question - What bank in Malaysia doesn’t have ATM machines? Bank Negara Malaysia. However, you’ve heard them release policies and statements about financial issues, like their position on cryptocurrencies, and the Inter-operable Credit Transfer Framework (ICTF) that took effect in July. They do this on authority as the Central Bank of Malaysia - but what does that mean? What exactly do they do that is different from other banks? [READ MORE - Is Bitcoin legal in Malaysia?] [READ MORE - Bank Negara’s policy on FREE bank transfers is actually about...paying with QR codes?] Bank Negara is… a company Bank Negara Malaysia, also known as the Central Bank of Malaysia, was established under the Central Bank of Malaysia Act 1958 as a “body corporate”. There’s since been a new law written, the Central Bank of Malaysia Act 2009 (CBMA), which continues to provide for Bank Negara’s existence. A “body corporate” is basically a company which has what we call “separate legal entity”. This means that legally speaking, the company becomes a “person” and can do almost anything a real person can. Bank Negara is just like normal banks in the sense that it operates like a company, even though you won’t see “Sendirian Berhad” behind its name. [READ MORE - If a Malaysian company that owes you money goes bankrupt, can you sue the boss to get it?] As to the question of who owns Bank Negara... we don’t know, because there’s no list. Bank Negara is a pretty powerful body corporate though. It has quite a few functions listed under Section 5 of the CBMA, but they fall under 3 major categories… 1. Monetary Policy The interest rates at your bank fluctuate over time - those rates move according to the interest rates set by Bank Negara - also known as the “Overnight Policy Rate” (OPR) defined in their monetary policy. The goal of Bank Negara in setting a monetary policy is to maintain price stability, while taking the state of the economy into account. They do this through a Monetary Policy Committee set up by Section 23 of the CBMA, which consists of Bank Negara’s Governor, the Deputy Governors, and between 3-7 other members who will either be directors or officers of the Bank. They decide on monetary policy together and publish a monetary policy statement roughly every 2 months (which you can keep track of here). After that, the Bank can choose to implement the monetary policy by these further measures (other than setting the interest rate): Issuing financial securities, but no more than the amount of foreign reserves (non-Malaysian assets) they own They can buy, sell, and redeem their own financial securities Requiring financial institutions to hold reserves with Bank Negara Exercise certain powers to transact with financial assets as per Section 75 of the CBMA Make financial transactions involving currencies, securities, precious metals, or other commodities or financial instruments Basically, they’re balancing the economy and keeping it healthy by setting the price of money itself (which is the interest rate). 2. Financial Stability What “financial stability” means isn’t defined in the CBMA, but a “risk to financial stability” is in fact defined in Section 29 as: “... a risk which in the opinion of the Bank disrupts, or is likely to disrupt, the financial intermediation process including the orderly functioning of the money market and foreign exchange market…” “...affects, or is likely to affect, public confidence in the financial system or the stability of the financial system.” In order to keep that stability, Bank Negara can request any supervisory authority or government agency of Malaysia to submit information on: Any financial institution Any other financial service provider Any other person that Bank Negara thinks might be a risk to financial stability Any related corporation of the above Once they get that information, Bank Negara can also take measures under Section 31 to protect financial stability, such as controlling the amount of any type of risk people can take, or even issue orders to banks and the general public to take measures which will protect them from risks to financial stability. For example, if Chimpanzee Bank takes on a lot of high risk assets like, say…sub-prime mortgage securities (hint hint), Bank Negara can choose to issue an order telling Chimpanzee bank to reduce their exposure to those high risk assets. In the worst case scenario where a financial institution goes bankrupt, Bank Negara can also, under Section 32 of the CBMA, provide liquidity assistance (loans) to those financial institutions, and even buy up that financial institution’s shares. 3. Control Foreign Exchanges If you’ve never heard of the “Yen Carry Trade”, it was basically an “easy money” tactic that involved borrowing Yen from Japan at a very low interest rate, and reinvesting that money in the US where interest rates were higher and you would get a nice return - basically borrowing money for almost free and then earning interest from another country. This caused many problems for Japan back when they didn’t have capital controls - to prevent currency from flowing out of the country uncontrollably and devaluing the currency. One of Bank Negara’s responsibilities is to prevent exactly that, so they are empowered through Section 43 of the CBMA to issue: “... rules, codes, standards, principles or guidelines for the purposes of regulating, developing, or maintaining orderly conditions or the integrity of, the money market, the foreign exchange market or the market for the derivatives related to the currencies, securities and other financial instruments traded in these markets.” Under Section 214 of the Financial Services Act 2013, no one can make a transaction under Schedule 14 without the written approval of Bank Negara, which are basically transactions where foreign currencies and/or gold enter Malaysia, and where the Ringgit exits Malaysia. There are further rules in the Foreign Exchange Administration rules of Bank Negara, which you can refer to at Bank Negara’s website. They also have a list of Frequently Asked Questions if you have any specific questions about financial rules and regulations. Bank Negara stabilizes our economy If at the end of all that you’re still having trouble figuring out what Bank Negara does, you can think of them as the people who control the thermostat of the Malaysian economy - like the guy with the air conditioner remote in your office. He’s got to make sure the temperature isn’t too cold, nor too hot, so you’ll be reasonably comfortable and know what to expect in times to come. If it’s raining outside, he’s got to turn up the temperature to make sure everyone doesn’t freeze, and so on. If you’d like to learn more about how the Central Bank functions in an economy, Ray Dalio’s great video about ""How The Economic Machine Works"" contains information about the role the Central Bank plays in an economy."
"What does the Speaker in Dewan Rakyat actually do? [This article was originally written in Bahasa Malaysia. Klik sini untuk versi BM] You may have heard of the Parliament of Malaysia being refered to one of the most important governmental institutions in Malaysia, playing a crucial role in passing federal laws which are usually named ‘Acts’ (or Akta in Malay). But what we refer to as ‘Parliament’ is actually comprised of three components. According to Article 44 of the Federal Constitution, the three main elements of the Parliament are: Yang di-Pertuan Agong (YDPA); Dewan Negara; and Dewan Rakyat. Based on this Article (as in Article 44, not the one you’re currently reading), the power to make laws lies upon the Parliament which uses a bicameral system (dual house) that comprises of House of Senate (Dewan Negara) and House of Representatives (Dewan Rakyat). The Dewan Rakyat is also dissolved before every General Election to make way for a new set of MPs as voted for by the People. [READ MORE: More to the point of the article (the one you’re currently reading), the Dewan Rakyat operates under a set of rules called the Standing Orders of the Dewan Rakyat (SO). Order 1 of the SO states that when the Dewan Rakyat commences its meeting for the first time after an election, their first task is to appoint a Yang di-Pertua Dewan, or commonly known as the Speaker. As such, YB Datuk Mohamad Ariff Md Yusof, former Judge of the Court of Appeal was appointed as the Ninth Dewan Rakyat Speaker of the 14th Malaysian Parliament, succeeding Tan Sri Pandikar Amin Mulia. The appointment of the Speaker is important because he or she is responsible for a very specific set of duties... What are the duties of Dewan Rakyat Speaker? YB Datuk Mohamad Ariff Md Yusof. Image from NST Generally, Tuan Yang di-Pertua Dewan / Speaker acts like a moderator who chairs and regulates the Dewan Rakyat meeting. There are several powers granted to him in order to ensure the efficiency of the meeting session and obedience towards the regulations among the Members of Parliament (MPs) as prescribed under the Standing Orders (SO). Among the powers of the Dewan Rakyat Speaker are: 1. Allowing the use of English during the meeting If you watch videos of parliamentary sessions, you’ll sometimes hear an MP saying – ”Dengan izin Tuan Speaker, we need to ...” It means that, if any MP who wants to speak English during the session, he has to obtain permission from the Dewan Rakyat Speaker by at least saying the words stated above before continuing his speech. According to Order 8 of the Standing Orders (SO): 8. The official language of the House shall be Bahasa Malaysia, but Tuan Yang di-Pertua may permit the use of the English Language. This is because Bahasa Malaysia, as the national language, is prioritized for use in government administration. 2. Refuse to allow any motion submitted to him In this context, a ‘motion’ typically refers to a formal proposal. During a session, MPs may end up making numerous motions or suggestions; which would be pretty daunting if not time-consuming. So it makes sense that not all motions raised before the speaker will be accepted or executed (carried out). Order 18(7) of the SO states that the Speaker has power to refuse to allow any motion proposed by any MP for the following reasons: The MP is using it as an opportunity to speak to the House The matter has already been discussed and clarified by the government If it contravenes (goes against) any Standing Orders This is to ensure that time is efficiently spent according to the Order Paper (Aturan Urusan Mesyuarat) – basically the schedule or timetable of the day. 3. Allow MPs to ask supplementary questions When parliament is in session, MPs are given the opportunity to ask a Minister questions on urgent or pressing issues in in a specially allocated period called Question Time. Sometimes, an MP may be unclear with an answer or statement given, so there’s also an allocation to ask Ministers or Deputy Ministers additional questions (‘supplementary questions’) – but there are rules. According to Order 24(3) of the SO: 24. (3) Tuan Yang di-Pertua may allow not more than three supplementary questions to be put for the purpose of elucidating any matter of fact regarding which an oral answer has been given… In short, an MP can only ask up to 3 supplementary questions which have not been answered yet, and it has to be related to an answer already given. An example would be if a minister had answered a question about the fishing industry, an MP cannot ask a supplementary question about the rising crime rate. The rules also prevent sneaky MPs from combining several questions as one. Generally, the Speaker vets through these questions to avoid turning Question Time into a debate or prolonged discussion as per Order 24(4) of the SO: (4) A question shall not be made the pretext for debate Speaker also has the power to suspend any MP from his service! Recently, Bukit Gelugor MP YB Ramkarpal Singh was ordered to leave the Dewan Rakyat, with his service suspended for two days due to his failure to comply with the Speaker’s order to withdraw his remarks made during the session. In such, YB Ramkarpal has the dubious honor of being the first MP to be thrown out and suspended under the 14th Malaysian Parliament. But does the Speaker actually have the power to throw out and suspend MPs? According to Order 44(2) of SO: 44. (2) The Chair shall order any member whose conduct is disorderly or whose acts are in contempt of the House or who continues to disregard the authority of the Chair to withdraw from the House for a period not exceeding ten days and such member shall immediately withdraw from the House. If the meeting adjourns before the end of such period, the remainder of the period shall be brought to the next meeting, unless Parliament is earlier dissolved, if the Chair does not determine the period for the member to withdraw, such period shall be deemed to be two days inclusive of the day of the incident. Based on this provision, yes – the Speaker has the power to order any MP who fails to comply with related Standing Orders to leave the House and suspend his service for up to 10 days if stated; or for two days if the period is not stated by the Speaker. This includes the day the MP was ordered to leave the House. If the Speaker thinks that this action is not sufficient, he can also suspend an MP for a longer period of time with the assent (agreement) of the majority of MPs through procedures described under Order 44(3) of SO. So… how is the Dewan Rakyat Speaker appointed? Looking at his duties and powers, the Dewan Rakyat Speaker is important as to ensure the efficiency and sustainability of the Parliament. Therefore, the nominees that will be chosen must fulfill the criteria stated under Article 57(1) of the Federal Constitution. In simpler words, Dewan Rakyat Speaker nominees can be chosen among the MPs or any Malaysian citizen who is eligible to contest in the federal election (for Parliamentary seat) which is, generally, someone who is at least 21 years of age and not disqualified from running in the election. If the Speaker is not an MP, he or she must take an oath before the House, and be regarded as one of its members by virtue of Article 57(1A) of the Federal Constitution. In terms of electing the Speaker, some of the conditions prescribed under Order 4 of SO are as follows: An MP must have the consent of the candidate(s) before submitting their name. The names must be submitted to the Secretary of the House at least 14 days before the first meeting begins. During the nomination session, an MP will orally propose the candidate’s name. If there’s agreement, this proposal will be seconded (supported). No debate or discussion is allowed. If there’s only one candidate who has been seconded, he or she will be declared as Speaker without question. If there’s more than one candidate, the MPs will need to vote by written ballot. In a way, this is something that Parliament and house parties have in common – a good speaker can really make a difference."
"5 things about employment contracts that every Malaysian gets wrong So here’s a question - how many of you actually FULLY read your employment contract? Chances are that most of you probably skipped to the part about your pay and annual leave before signing the next few years of your life away as an indentured servant gainful employee. But at the risk of sounding like a broken record, you should always read your contracts and do your best to understand what they mean. Surprises aren’t very nice when it comes to the terms of your employment - you don’t want to assume your resignation notice period is 1 month, only to find out that it actually says 3 months in your contract. [READ MORE - What happens if you sign a contract without reading it in Malaysia?] The trouble is your contract is not always straightforward, and you’ll need to know some of the laws that work alongside it to fully understand what’s going on. Here’s 5 points about your employment contract that are not what they seem - and could end up seriously misleading you! 1. Your ex-employer can’t stop you from working with a competitor company after resigning Unless you’ve never read your employment contracts (or you’ve never had a job), you probably know that there’s a clause about “non-competition” or “restriction of trade”. It’ll read something like this: “After the termination of employment for any reason whatsoever, the employee shall not for a period of 12 months from the date of termination carry out any business of any nature that is similar in nature to or is in competition with the employer.” [READ MORE - Can Malaysian employers stop their ex-staff from joining a competitor?] Depending on your contract, it may be written to cover the time during your employment as well. While it’s not a crime to put this term into a contract, these non-competition clauses are not enforceable in Malaysia because of Section 28 of our Contracts Act 1950 (although there are exceptions for agreements with business partners): “Every agreement by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, is to that extent void.” This doesn’t mean that you can set up a competing business against your employer, or use your employer’s clients to set up your own business, as you still have what’s called “fiduciary duties” to your employer. It basically means that you have a relationship where you have a duty to act for your employer’s best interests, and if you act against it, you are said to have breached your fiduciary duties. 2. There are ways to skip your resignation notice period This isn’t an easy way round or a way to game the system. It more because of a little known fact: you can negotiate changes to your employment contract even after signing it. If for one reason or another you need to leave your job before you can finish serving your notice period, you can actually skip the notice period by negotiating to get it waived with your employer. (Pro-tip: building a healthy working relationship with your boss helps a lot here.) Using your outstanding leave to offset the notice period is usually also an option, failing which... there’s always the last resort of paying the penalty for resigning without notice. [READ MORE - Is there a legal way to skip the notice period when you resign in Malaysia?] 3. Having an “employment contract” doesn’t always mean you’re an employee When you get approached by a company and you sign an employment contract, you are an employee; and when you get an offer to be a “freelance” or “part-time” promoter for a few days, you are a freelancer - right? WRONG. Contrary to what you might be used to, those “freelancer promoter” jobs you might have done time to time might actually be employment - legally speaking. If it was legally considered employment, it means that you should be paid EPF, SOCSO, and EIS for those few days of work. [READ MORE - 5 things Malaysian employers pay on top of your monthly salary] There are a few factors that the laws looks at to determine whether a person is really an employee or a freelancer, but whether you have a contract is not one of them. In fact, you can still be considered a freelancer even if you signed a document called “employment contract” - the effect of that document is more important than what you call it. You can read more about it in our article linked below. [READ MORE - What makes a person an employee or a freelancer in Malaysia?] 4. Not all employees are protected by our Employment Act Surprise surprise, you might not have known that our Employment Act 1955 defines “employees” as those who earn below RM2,000 per month, or those who are engaged in certain services, like manual labour or being a domestic servant (you can find a complete list in the First Schedule of the Employment Act). The Employment Act contains some provisions protecting employee rights, like minimum rest days, the minimum notice period for termination of employment, the right to be paid on time, etc. But, if you’re not considered an “employee” within the definition given, those protections will not apply to you. Instead, you’ll be looking to your employment contract to see what rights and responsibilities you have. So always read your contracts and fully understand what you’re getting yourself into, more so for your employment contract. This is even if you fall within the meaning of “employee” in the Employment Act, because although you have rights, it can be a hassle to go about enforcing them since you’ll be taking your boss to court. [READ MORE - If your boss refuses to pay you in Malaysia, what can you do?] [READ MORE - Is it legal for my boss to make me work on a Malaysian public holiday?] 5. You can be sued if you turn down a job after signing the offer letter If sending as many job applications as you can sounds like an attractive job-hunting strategy to you, just make sure you don’t hastily sign and return offer letters before you make your final decision. Each of those offer letters you’re getting could be valid contracts, and if you sign one, you can be sued for not taking the job. [READ MORE - Can a company sue me in Malaysia if I turn them down after signing the letter offer?] As mentioned, not all offer letters you receive are valid contracts, like those which do not list down the terms of your employment, or those which contain a term saying that the offer letter is subject to another contract or further negotiation. So unless you know for sure that the offer letters are not valid contracts, don’t go signing them to “book” the position - the company can stand to lose time and money (which they can sue you for). But relax, just because you can be sued doesn’t mean you will be. The company can only claim nominal damages (just a token sum) from you unless they suffered losses from your failure to follow through with the offer letter (like recruitment costs and time needed to headhunt another candidate, etc). While you might not be sued in the end, it’s still best to be prudent about signing because you don’t want to build a reputation for disappearing on companies and breaking contracts left right centre. Always read AND understand what you’re signing Imagine thinking that you aren’t allowed to work in the same industry for a year after leaving a company, only to find out later than you were misled, and you didn’t really need to respecialize to get another job. We like the idea of lifelong learning and all, but you could have avoided a very unnecessary struggle if you knew sooner. If the idea of reading contracts full of confusing legal jargon tastes bad to you, you can ask your the HR department to clarify and explain the contract (don’t take “this one don’t need to know” or “too complex to explain” for an answer). You can also check out our guide to reading a 50 page contract without falling off your chair. [READ MORE - How to not fall off your chair when given a 50 page contract in Malaysia]"
"What can you do if the PDRM is not investigating your report? If you are a victim of a crime or a witness of a crime, the first thing you usually do is go to the police station and make a report. But what happens next? What would the PDRM do after receiving the report? In 2016, more than 100,000 crimes were reported to the PDRM. This begs the question, do the police actually investigate all crimes reported to the them and, perhaps more importantly, are they obligated to investigate all crimes reported to them? The answer in essence depends on what information you have given the PDRM or, in other words... It depends on the type of crime you reported First up, we don’t realistically expect everyone to know exactly what type of crime they’re reporting – what’s important is that crimes get reported. However, this information comes in useful to understand why the police may decide to not proceed with investigations. A report made to the PDRM is commonly known as a First Information Report (FIR), and it is governed under Section 107 of the Criminal Procedure Code. Under this section, the PDRM has a legal obligation to receive information of any offences committed. They’re is also duty bound to transcribe your verbal report into writing and read it back to you. Now that you have reported a crime to the PDRM, must they immediately start investigating? As mentioned above, it depends on the type of crime you reported. With regards to this topic, the type of crimes can be classified into two: 1. Non-seizable offence Non-seizable offences are usually crimes that carry a punishment less than 3 years. An example of such a crime would be assault under Section 357 of the Penal Code, which carries a punishment of up to 1 year imprisonment. For these offences, the police have a choice whether to investigate or not. If they choose not to investigate the offence, Section 108(1) of the Criminal Procedure Code states that the PDRM must refer you to a Magistrate, who may then decide what to do with the case. If the police choose to investigate the offence, Section 108(2) of the Criminal Procedure Code says that the PDRM must first obtain an Order To Investigate from the Public Prosecutor (PP) first. This is where the public prosecutor filters out complaints which are legit against those which are more trivial in nature. 2. Seizable Offence Seizable offences are usually those which carry a punishment of 3 years and above. An example of such a crime would be kidnapping under Section 363 of the Penal Code, which carries a punishment of up to 7 years imprisonment. Upon receiving information of such an offence, Section 110(1) of the Criminal Procedure Code states that the PDRM shall first send the FIR to the PP (unless the crime concerned doesn’t require reporting to the PP). Then, the PDRM can proceed to the scene of the crime and do the necessary investigations. So, from this provision alone we can see that the law requires the PDRM to actually investigate the crime reported. However, it should be noted that there are exceptions allowing the police to not investigate the crime. These would be when: The report is given against a named person, and the case is not serious. There are insufficient grounds to proceed. Section 110(2) of the Criminal Procedure Code states that if the PDRM chooses not to investigate, they must actually state their reasons for not doing so. If you’re wondering how you’d know if your report is being investigated or not… You can actually ask for the status of your report Section 107A of the Criminal Procedure Code states that a person who has made a FIR can request to know the status of their report. All you have to do is go to the same police station where you made the police report and make a request with the Officer in Charge of the Police Station( OCS). The same section also provides that the PDRM is required to provide the status of investigations of seizable offences if the period of 4 weeks has lapsed. In the event you have made a request for a status update but the PDRM has fails to respond accordingly, you can actually report this to the PP. All you would have to do is send a written complaint to the Prosecution Division of the Attorney General’s Chambers. The PP will then direct the PDRM to give him the report status, and he may then give the report directly to you or ask the PDRM to do so. [READ MORE: What can you do if no action was taken on your police report?] Another scenario that may arise is that the police investigates your report, but decides to not take any further action. The Attorney-General’s website provides other reasons as to why no action will be taken with regards to your case, such as a lack of evidence (ie witnesses are not available) or not being able to locate the suspect While you can make an appeal to the PP on why your case is worth further action, the PP ultimately has absolute discretion to make that final call. More information on how to appeal here. You can also make a complaint to the EAIC If let’s say you feel the police have been irresponsible or careless in handling your case, another avenue you have is to make a complaint with the Enforcement Agency Integrity Commission (EAIC). The EAIC is a government body empowered to investigate complaints against certain public officers who may not follow procedures required from them – in this situation, not investigating a crime or not giving the report status to a complainant. There are several ways to file a complaint, the most convenient being: Via email – aduan@eaic.gov.my Website – e-Aduan Phone call – 03-8880 5651 / 5627 / 5625 Check out our full article on the EAIC’s jurisdiction (21 government agencies) as well as documents/materials that you need to prepare when making your report. [READ MORE: M'sian authorities have to investigate if their officers mess up. But what if they don't?]"
"Tertuduh kes bunuh di Malaysia didapati tidak bersalah kerana... bau badan [Artikel ini diterjemah dari Bahasa Inggeris. Click here for English version] Yang ini biasa kita dengar: pembunuhan berlaku untuk menyembunyikan jenayah lain. Selalunya mangsa dibunuh untuk menyembunyikan jenayah lain yang serius, seperti rogol. Banyak kes sebegini dilaporkan di Malaysia, dari kes sensasi pembunuhan Canny Ong yang diculik dari Bangsar Shopping Center – mayatnya ditemui dibakar di Jalan Klang Lama – sehinggalah kes bunuh Nurin Jazlin (masih belum selesai), yang dipercayai mangsa gangguan seksual. Kes bunuh Canny Ong telah pun selesai, dan tidak ada sesiapa pun yang dituduh membunuh Nurin Jazlin, muncul pula satu lagi kes melibatkan seks dan bunuh yang belum selesai walaupun seorang individu telah didakwa dan dibawa ke mahkamah. Inilah kes Noritta Samsudin, seorang eksekutif syarikat di mana mayatnya ditemui oleh rakan-rakan serumah, diikat di dalam bilik, dan di mana pertikaian utama kes ini merupakan .... bau badan busuk, lelaki setinggi 6 kaki, dan tertuduh yang menyerah diri? Hebat kan cerita ini? Banyak andaian yang dibuat dalam kes ini oleh itu kita akan tumpukan perhatian kepada fakta kes yang dipersembahkan di mahkamah. Mari kita lihat dengan lebih lanjut. Bau badan busuk, mayat yang diikat dan bayang-bayang seorang lelaki Noritta Samsudin merupakan wanita warganegara Malaysia berumur 22 tahun. Dia tinggal di bilik yang disewa dari sepasang suami isteri dan bekerja sebagai eksekutif syarikat di Kuala Lumpur. Pada 5hb Disember 2003, lebih kurang pukul 4:30 pagi, dua rakan serumahnya (Kenneth dan Nor Azora) menemui mayat Noritta selepas pulang dari kelab malam. Kalau kita fikir sejenak, agak menakutkan juga jika kita sendiri menemui mayat dan tambahan pula, mayat tersebut dijumpai dalam keadaan yang menggerunkan. Mari kita siasat kisah di sebalik penemuan ini. Apabila rakan-rakan serumah Noritta pulang, mereka agak hairan kerana semua lampu rumah terpadam. Mungkin anda akan terfikir bahawa ini tak beberapa hairan kerana waktu menunjukkan pukul 4:30 pagi dan Noritta mungkin telah memadamkan semua lampu sebelum masuk tidur; tetapi Noritta, Kenneth dan Azora telah bersetuju untuk sentiasa meninggalkan lampu ruang makan terpasang sebelum meninggalkan rumah. Selepas mereka berdua membuka kunci pintu dan melangkah masuk, Kenneth dan Azora mengesan bau badan yang kurang menyenangkan di pintu masuk, dan bau ini menyerbak ke bahagian koridor sehingga ke ruang makan. Selepas memasuki rumah, Kenneth mengunci pintu utama dan menggerapai ke bilik tidur bersama-sama Azora. “Reaksi Nor Azora terhadap bau badan tersebut menunjukkan bahawa arwah dilawati seseorang. Menurutnya, ia merupakan kali pertama dia berdepan dengan bau yang mual itu.” – Penjelasan Mahkamah Tinggi berkenaan keterangan rakan serumah – dipetik dari fakta (facts) keputusan Mahkamah Tinggi, diterjemah oleh ASKLEGAL Ketika Kenneth sibuk membuka pintu bilik tidur, Azora ternampak bayangan seorang lelaki di kanan tetapi mengendahkannya kerana dia mengandaikan bahawa Noritta ada membawa tetamu ketika itu berdasarkan bau badan yang busuk itu. Apabila mereka masuk ke bilik, Azora bertanya kepada Kenneth jika dia ada ternampak sesiapa berdiri di luar tetapi Kenneth menjawab tidak dan merasakan bahawa Azora cuma terbayangkan benda lain. Kalau anda sudah menonton filem Dukun, inilah masa anda menjerit, “ORANG MINYAK!” Azora membuat keputusan untuk mencari lelaki berkenaan. Dia bergegas ke ruang dapur dan ruang tamu tetapi tidak menjumpai sesiapa. Kemudian dia tersedar bahawa pintu depan rumah terbuka, dan dia tahu yang Kenneth telah pun mengunci pintu tersebut sebelum mereka berdua beredar ke bilik tidur sebelum ini. Dengan rasa kurang senang hati, Azora memanggil Kenneth dan kedua-duanya memanggil Noritta tetapi tiada balasan diterima. Kenneth kemudiannya bergegas keluar untuk memanggil pengawal keselamatan kerana mereka mengesyaki bahawa rumah mereka di pecah masuk. Tata kala Kenneth keluar untuk memanggil pengawal keselamatan, Azora sedar yang pintu bilik Noritta terbuka sedikit. Dia menjenguk dan kemudiannya memasang lampu bilik Noritta, dan mendapati biliknya berselerak, sambil melaung nama Noritta, Azora melucutkan selimut yang meliputi Noritta dan...menjumpainya terlantar di katil. “Noritta ditemui mati dengan kepala ke bawah tilam yang terletak di atas lantai biliknya. Kepalanya diserkup dengan sarung bantal yang diikat, dan kedua-dua tangan diikat dengan wayar elektrik di belakang, dan kakinya juga diikat dengan wayar elektrik dan baju dalam. Dia dijumpai dalam keadaan berbogel tetapi ditutupi dengan cadar ketika ditemui buat kali pertama” – Penjelasan Mahkamah Tinggi berkenaan keterangan rakan serumah – dipetik dari fakta (facts) keputusan Mahkamah Tinggi, diterjemah oleh ASKLEGAL Azora panik dan meluru keluar menghala ke tingkap biliknya untuk memanggil Kenneth yang berada di pondok pengawal. Pada ketika itu dia ternampak seorang lelaki yang berjalan ke arah pondok pengawal sambil mengenakan kemeja. Azora menyangka bahawa lelaki tersebut adalah lelaki yang sama dijumpainya di dalam rumah dan menjerit kepada lelaki itu untuk berhenti dengan menyatakan “Bastard, stop. I think you are a killer”. Azora kemudian bergegas ke bawah dan dia bersama-sama dengan Kenneth dan seorang pengawal keselamatan cuba mencari lelaki tersebut namun gagal. Kenneth dan ketua pengawal keselamatan kemudiannya memasuki bilik Noritta dan memanggil namanya tetapi tiada balasan diterima. Dia membuka ikatan sarung bantal yang menyelubungi kepala Noritta dan menjumpai mukanya dililit dengan sarung bantal peluk, menutupi mulutnya. Kenneth membuka ikatan ini dan sejurus selepas ikatan itu tertanggal, sehelai tuala muka berbentuk bola jatuh dari mulut Noritta. Kenneth cuba membangunkan Noritta tetapi gagal dan dia kemudiannya menghubungi polis. Nampaknya Noritta adalah mangsa rogol dan bunuh ataupun ... permainan seks yang tidak menjadi. Polis memulakan siasatan mereka dan... Pada satu hari, tertuduh melangkah masuk ke balai polis Pihak polis mengumpul beberapa bahan bukti seperti: 3 sampel air mani berbeza dari tilam 11 helai tisu dengan kesan air mani di dalam bekas sampah Kesemua peralatan yang digunakan untuk mengikat Noritta Dari semua bahan bukti yang terkumpul, polis menjumpai beberapa sampel DNA, satu daripadanya milik Noritta dan selainnya milik dua lelaki yang berbeza. Lelaki yang menyerah diri adalah Hanif Basree Abdul Rahman, seorang jurutera awam berumur 36 tahun dari Shah Alam. Jika anda tertanya-tanya, ya, salah satu sampel DNA adalah miliknya. Hanif kemudiannya didakwa di mahkamah atas tuduhan membunuh Noritta. “Bahawa kamu pada 5.12.2003 di antara jam 1.30 pagi hingga 4.00 pagi di...Kuala Lumpur, telah melakukan bunuh terhadap Noritta binti Samsudin, KP: 810211- 02-5166 dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 302 Kanun Keseksaan yang boleh dihukum di bawah seksyen yang sama.” – dipetik dari fakta keputusan Mahkamah Tinggi, diterjemah oleh ASKLEGAL Apabila kes ini dibicarakan di mahkamah, satu perkara penting diketengahkan oleh pihak pendakwa raya sebagai keterangan berdasarkan keadaan (circumstantial evidence) sebagai bukti yang Hanif bersalah, iaitu sebelum Hanif menyerah diri kepada pihak polis, dia telah membotakkan kepala dan memotong semua kukunya. Timbalan Pendakwa Raya memberitahu mahkamah bahawa ini membuktikan bahawa Hanif cuba memusnahkan semua bukti yang boleh menghubungkannya dengan Noritta. Mereka juga menyatakan bahawa Hanif ada bertanya jika bukti DNA boleh menghubungkannya dengan bilik Noritta pada malam kejadian. Menurut keterangan mahkamah saksi-saksi pihak pendakwa raya – iaitu pengawal-pengawal keselamatan bertugas di kondo tersebut: Hanif sering berkunjung ke kondominium Noritta dan selalunya balik bersama Noritta sekitar pukul 2 pagi. Pada hari kejadian, Hanif memasuki kondominium sebelum pukul 1 pagi dan kemudiannya mereka nampak Hanif dan Noritta berbual dengan dua pasangan orang keturunan Melayu yang berada di dalam sebuah kereta Perodua Kancil di kawasan luar kondominium ketika itu Mereka tidak nampak Hanif meninggalkan kondominium pada hari kejadian Mungkin anda terfikir yang ianya mustahil untuk mengingat kembali siapa yang keluar masuk kondominium tersebut sebab Hanif semestinya tampil sebagai seorang warga Malaysia biasa kan? Sebenarnya tidak kerana ketinggian Hanif setinggi 6 kaki bukannya ketinggian biasa seorang warga Malaysia. Dua saksi yang memberi keterangan terhadap Hanif dan bukti DNA. Sangkutlah nampaknya si jurutera kita ni. Kita pun sudah sedia maklum dari siri-siri TV yang bukti DNA tidak boleh dipertikaikan dan boleh meletakkan tertuduh di tempat kejadian, dan seterusnya dia boleh didakwa. Kita pun dah banyak kali tonton di TV adegan penyiasat menjumpai sehelai rambut dan dia kemudian memasukkannya ke dalam beg bukti. Tetapi hakikatnya, apa makna semua bukti ini menurut undang-undang? Undang-undang terbahagi kepada keterangan terus dan keterangan berdasarkan keadaan Menurut undang-undang sivil dan jenayah, beberapa perkara perlu dibuktikan untuk mewujudkan dakwaan dan punca kejadian. Ini dikenali sebagai fakta isu (Facts in issue) dan ini merupakan komponen utama dalam kes. Sebagai contoh, dalam kes bunuh Noritta, pihak pendakwa raya perlu membuktikan bahawa: Kematian Noritta telah berlaku Kematian Noritta berpunca atau hasil daripada sesuatu yang dilakukan oleh Hanif Tindakan dibuat dengan niat untuk menyebabkan kematian ataupun menyebabkan kecederaan badan yang boleh membawa kepada kematian Selain dari fakta isu, pihak pendakwa raya boleh juga membangkitkan fakta relevan (relevant facts) yang boleh memperkukuhkan fakta isu. Fakta relevan yang dibangkitkan oleh pihak pendakwa raya adalah motif cemburu. Mereka mendakwa bahawa Hanif membunuh Noritta kerana dia cemburu yang Noritta rapat dengan lelaki lain. Fakta relevan boleh membantu untuk membuktikan fakta isu tetapi ia bergantung kepada pengaruhnya. Kita sekarang ada keterangan yang boleh membuktikan fakta isu ataupun fakta relevan, keterangan yang boleh membuktikan kedua-dua isu ini terbahagi kepada dua jenis; keterangan terus (direct evidence) dan keterangan berdasarkan keadaan (circumstantial evidence). Keterangan terus di sini membuktikan secara langsung fakta isu/relevan, manakala keterangan berdasarkan keadaan agak rumit sedikit – fakta isu/relevan tidak dibuktikan secara langsung tetapi ia lebih bersifatkan kesimpulan. Jika dakwaan dibuat berdasarkan keterangan berdasarkan keadaan, ianya perlu membuat kesimpulan kukuh kepada mahkamah yang Hanif melakukan jenayah tersebut. Dan jika ada penjelasan lain yang munasabah diberi oleh keterangan berdasarkan keadaan, maka mahkamah tidak boleh menyabit. Keterangan kes bunuh Noritta boleh dibahagikan kepada: Kenyataan pengawal yang menunjukkan bahawa Hanif berada di dalam apartmen pada masa kejadian, tetapi tidak menunjukan yang Hanif membunuh Noritta. Keterangan ini merupakan keterangan berdasarkan keadaan. Bukti DNA menunjukkan yang Hanif ada melakukan hubungan seks dengan Noritta sebelum dia dibunuh tetapi ia tidak meletakkan Hanif sebagai orang terakhir yang melakukan hubungan seks dengan Noritta walaupun Hanif mengaku yang dia dan Noritta mempunyai hubungan seksual dan dia ada berjumpa dengan Noritta sehari sebelum dia dibunuh. Jadi keterangan ini juga merupakan keterangan berdasarkan keadaan. Tambahan pula mahkamah mendapati bahawa kedua-dua pengawal keselamatan memberi kenyataan yang berlainan dan mereka juga mengubah cerita mereka beberapa kali. Kenyataan pertama mereka mengatakan bahawa mereka nampak Hanif di apartmen tetapi ianya sehari sebelum pembunuhan berlaku. Mereka mendakwa yang mereka dalam keadaan panik ketika itu dan gagal mengimbas kembali apa yang berlaku tetapi mahkamah juga mendapati yang kenyataan mereka bercanggah dengan pakaian yang dikenakan Hanif dan Noritta: “Mahkamah ini telah melihat dan mendengar kenyataan kedua-dua saksi ini dan mendapati bahawa kesahihan keterangan mereka amat mencurigakan terutamanya untuk membuktikan keterangan yang penting ini dan dengan itu menolak kenyataan mereka” – Mahkamah Tinggi dalam kes Pihak Pendakwa Raya v Hanif Basree Abdul Rahman Seperti yang kita lihat, asas keterangan pihak pendakwa raya terletak kepada kenyataan kedua-dua saksi ini yang didapati tidak benar. Dan walaupun keterangan yang diberi boleh diterima, ia hanyalah keterangan berdasarkan keadaan dan di sini, kenyataan dari kedua-dua rakan serumah Noritta bercanggah dengan kenyataan kedua-dua pengawal keselamatan. Rakan-rakan serumah Noritta menyatakan bahawa mereka kenal Hanif dan mereka tidak pernah tercium bau badan yang busuk darinya. Selain itu, Azora juga menyatakan yang lelaki yang dia nampak pada malam itu berkulit lebih gelap dari Hanif. Berdasarkan semua kenyataan ini, mahkamah memutuskan bahawa.... Hanif bukan pembunuh Noritta Ya betul! Mahkamah membuat keputusan untuk membebaskan Hanif atas empat sebab: Mereka mendapati kenyataan kedua-dua pengawal keselamatan yang menjadi saksi tidak boleh dipercayai Bau badan busuk yang tidak dapat dijelaskan Tiada bukti yang menyatakan bahawa Hanif merupakan orang terakhir melakukan hubungan seks dengan Noritta Wujudnya DNA kedua milik lelaki tidak dikenali Kita sedia maklum dengan kesahihan kenyataan pengawal keselamatan tetapi apa yang lebih menarik di sini ialah pihak pendakwa raya tidak dapat menerangkan kewujudan DNA kedua milik lelaki tidak dikenali. Makhamah menyatakan bahawa berdasarkan bagaimana tangan dan kaki Noritta diikat selepas di bunuh dan bagaimana DNA milik lelaki yang tidak dikenali dijumpai pada wayar elektrik dan baju dalam yang digunakan untuk mengikatnya, maka kemungkinan tinggi orang terakhir yang bersama Noritta adalah lelaki tersebut. “...Pihak pendakwa raya tidak dapat membina kes prima facie yang mengatakan tertuduh bertanggungjawab atas kematian mangsa berdasarkan bukti saintifik, satu-satunya bukti yang ada. Ia juga tidak dapat membuktikan yang tertuduh merupakan orang terakhir bersama-sama mangsa. Sebaliknya, Mahkamah Tinggi mendapati yang individu yang dikenali sebagai Lelaki Tidak Dikenali 1 berkemungkinan tinggi merupakan orang terakhir tersebut” - Mahkamah Tinggi dalam kes Pihak Pendakwa Raya v Hanif Basree, Penekanan dan terjemahan oleh ASKLEGAL Menurut mahkamah, berdasarkan semua di atas, pihak pendakwa raya gagal menubuhkan kes prima facie (kes asas) dan dengan itu membebaskan Hanif dari tuduhan membunuh. Ya....pembunuh Noritta masih lagi bebas Malangnya, kes Noritta sudah menjadi kes lama. Lelaki yang tidak dikenali itu tidak dijumpai atau dikenalpasti. Berdasarkan fakta kes yang menyatakan bahawa tiada tanda-tanda pecah rumah dan pergelutan dengan Noritta, kemungkinan besar dia mengenali si pembunuh. Anda mungkin terfikir bahawa semua ini mungkin akibat dari aktiviti katil yang tidak menjadi (ini juga di hujah oleh pihak pembangkang), tetapi apa yang dapat kita lihat di sini adalah bukti menunjukkan bahawa tuala yang disumbat ke dalam mulut Noritta mungkin menyebabkan Noritta tertelan lidahnya dan ini boleh menyebabkan saluran pernafasannya tersumbat. “... disebabkan oleh tuala muka yang disumbatkan ke mulut Noritta, ia boleh menyebabkan kematian kerana apabila benda ini dimasukkan dengan paksa, lidah akan didorong ke belakang dan menyebabkan saluran pernafasan tersumbat...pandangan bahawa kematian ini dilakukan dengan sengaja...” – dipetik dari keterangan doktor yang menjalankan bedah siasat ke atas Noritta dalam keputusan Mahkamah Tinggi, diterjemah oleh ASKLEGAL Mungkin kes ini akan terus menjadi misteri."
"Will you get in trouble if you report a bribe that you paid in Malaysia? You’re in the car, stopped and staring out at a police officer who’s asking for your ID. Maybe you broke a traffic law and got pulled over, or maybe you were busted for something like making out in the car. Either way, you’re in trouble with the law now… [READ MORE - So you got caught by the PDRM for making out in public... What now?] The officer tells you the details of your offence, and right when they’re about to write you a summons, they drop that dreaded line: “how you want to settle?”. Unless this is your first time in Malaysia, you’d recognize that as code for asking for a bribe You don’t exactly like corrupt authorities, but you’re also worried that the officer might try something that’ll get you in deeper trouble. Stuck between a rock and a hard place, you pay the bribe. You know you’ve broken the law because bribery is a crime, yet you know the right thing to do is to report the misbehaving officer because... Malaysia Baru… right? Now you’re stuck between a harder rock and a harder place - will reporting that you paid a bribe get you in trouble for paying a bribe? Not reporting a bribe is ALSO a crime Both accepting (or asking for) a bribe, and offering a bribe are crimes under the Malaysian Anti-Corruption Commission Act 2009 (MACCA): Section 16 - MACCA Offence of accepting gratification “Any person who by himself, or by or in conjunction with any other person— (a) corruptly solicits or receives or agrees to receive for himself or for any other person; or (b) corruptly gives, promises or offers to any person whether for the benefit of that person or of another person, any gratification as an inducement to or a reward for, or otherwise on account of— (A) any person doing or forbearing to do anything in respect of any matter or transaction, actual or proposed or likely to take place; or (B) any officer of a public body doing or forbearing to do anything in respect of any matter or transaction, actual or proposed or likely to take place, in which the public body is concerned, commits an offence.” A “gratification” basically refers to anything valuable, whether it’s goods, a position, or even discounts. And a gratification becomes a bribe when it is given to ask someone to do (or not do) something that will happen, or is supposed to happen. If you take away the technicalities, this basically means that if you give or take a bribe, you’re committing a crime. You want to report the officer for asking for a bribe in the first place, but… you don’t want to get into even more trouble with the law either. You’re stuck with a legal mess in any case because the MACCA also makes it a crime to not report a case of corruption. Section 25(3) of the MACCA says that any person who is asked for a bribe and does not report the incident can be fined up to RM10,000 and/or be imprisoned for up to 2 years. So what can you do then? Could you get protection under the Whistleblower Protection Act 2010? You could be protected as a whistleblower - under certain conditions The Malaysian Anti-Corruption Commission (MACC) is one of the recognized government authorities that you can whistleblow to, which means that they can give you protection as a whistleblower from legal liabilities and disciplinary action, not to mention your identity is kept a secret as well. It’s a highly criticized law that’s the centre of why Rafizi Ramli got into trouble for exposing the National Feedlot Corporation. [READ MORE - What type of protection do whistleblowers get in Malaysia?] Because of some shortcomings, whether or not you qualify for whistleblower protection depends on which of the following scenarios you fall under… 1. You were asked for a bribe - you didn’t pay If you were approached by a government officer with a ruse like “how you want to settle?”, and you refuse, then you’re in the clear to make a report any one of 7 enforcement agencies, which includes the MACC. You witnessed a case of corruption, and you’re reporting it - straightforward example. 2. You were asked for a bribe - you paid up This is where things get complicated. Sure you weren’t the one who was offering the bribe, but the current law states that whistleblower protection must be revoked by the enforcement agency if you were involved in the corruption you are reporting. Since you were a party to the bribery, you won’t qualify for whistleblower protection. 3. You offered a bribe - you… die properly lah Needless to say, this is different from the above scenarios because you’re not going to report anyone, you’re actually the mastermind for this incidence of corruption… It’s worth noting that Section 52 of the MACCA states that you won’t be automatically considered as an accomplice to the corruption just because you were a part of it. So to take an example, if you were threatened or otherwise coerced into giving a bribe, the law does not immediately think you’re guilty of corruption, and gives you the benefit of the doubt - there still needs to be proof that you were a willing participant in the bribery. The whistleblower law has been proposed for reform You may have found yourself in a difficult situation with an officer before, choosing to take the safer way out by complying with a request for a bribe (and maybe feeling dirty afterwards). Unfortunately the current law doesn’t allow you to step forward about the incident without getting into a lot of trouble yourself. Ex-Bar Council President Christopher Leong has argued that it’s better to make the revocation of whistleblower protection optional, because well, it’s better to let one whistleblower go free rather than let a case of corruption go unreported instead. It’s one of those bad laws we’re stuck with for now until it gets reformed. Kepong’s MP Lim Lip Eng has mentioned it as a law he wants to table a motion for, and it’s also in Pakatan Harapan’s manifesto as a law in need of reform under their new government. If you want to suggest laws for reform, you can write a letter to the Member of Parliament from your constituency with your concerns and requests. They’re elected to best represent your views and protect your interests, so it’s vital that you let them know what you want for this country."
"So you got caught by the PDRM for making out in public... What now? The story goes the same way most of the time – a couple in a park or a car, just somewhere quiet and alone. And then one of you decides to engage in, you know. Couple-like behaviour. Carpe diem. All of a sudden there’s the dreaded knock on the window, a blinding beam from a flashlight, and (sometimes) righteous throat clearing. Party-time’s over. You’ve just been busted by the cops for indecent behavior. The big questions here are, what constitutes indecent behavior in the first place; and is it actually illegal? With regards to indecent acts, it might seem a little difficult to figure out what is acceptable and what is not. Is kissing okay? How about hugging? How about public displays of affection so… affectionate, it’ll make your grandmother cringe? It’s not an easy question to answer, but we will look at a case a little later to help understand what is thought of as decent, or not. So let’s break this down into the specific sections starting with... Is it actually illegal? The short answer is yes – Acts of public indecency will get you in trouble with the law. This article we’ve written covers a similar topic, which explains indecency with regards to public nudity. It goes more in depth with regards to the laws governing indecent acts. But for the purposes of this article, let’s assume it’s something more ‘conventional’, like kissing and hugging. Most laws require you to have been indecent with intention for another person to see it, as stated in Section 509 of the Penal Code and Section 28(e) of Minor Offences Act 1955. Flashers come to mind as a suitable example. However, there is a possible exception here. If you did your best to scope out a secluded spot for some truly private time because your parents are home and the walls are thin, you may still be charged under Section 294(a) of the Penal Code which states: “Whoever, to the annoyance of others— (a) does any obscene act in any public place…shall be punished with imprisonment for a term which may extend to three months or with fine or with both.” In which case, your intention is irrelevant and you might still be in trouble. This is further clarified by lawyer Fahri Azzat from legal firm Fahri & Co. explains: “294(a) is a strict liability offence that does not require intention to be proved. It means that if you did it then it’s an offence. You do not have to “intend” to do it.” - Fahri Azzat, in interview with ASKLEGAL Of course, this leads to the next question: What is “public”? The general versus legal understanding of ‘public’ is not very different. Public areas include but are not limited to theatres, parks, footways, roads. Some of these places are defined in the Minor Offences Act 1955, for example : “place of public resort” means any place licensed under any written law in force in Malaysia relating to theatres and includes an amusement park; “public footway” means any footway made or set apart for the use or accommodation of foot passengers over which the public have a right of way; “public road” includes every road, street, bridge, passage, footway or square over which the public have a right of way... What this means is that arguably, most places that aren’t in a building or completely secluded can be reasonably justified to fall within the ambit of “public”. And now for the part that you’ve probably been wondering about since the start of the article – What’s “indecent”? We left this for last since indecency is tricky business, in that it can be quite subjective. See, I might think it’s perfectly decent to run naked down Petaling Street screaming profanities. However, most Malaysians probably won’t agree with me, nor do they wish to see me (or anyone) running naked down Petaling Street screaming profanities. Same with kissing, hugging, and other public displays of affection. The point is, that what is decent to you may not be decent to someone else! To understand the meat (no pun intended) of the argument, lets have a look at the case of Ooi Kean Thong & Siow Ai Wei v DPP 2006 [FC], which some of you may remember as it generated a lot of discussion on public morality and decency back in 2006. In short, a local couple were found behaving in a “disorderly” manner (kissing and hugging under a tree in a park) and charged under Section 8(1) of the Parks (Federal Territory of Putrajaya) By-Laws, 2002 which states: No person shall behave in an indecent manner in any park. They were convicted (found guilty) but appealed against the ruling. This case generated a huge discussion on the line between decent or indecent, and how it’s enforced; two examples being a letter published in Malaysiakini, and a media statement by Bandar Kuching DAPSY Deputy Chief Member of Parliament Chong Chieng Jen who asked: “Where is the limitation of these legal enforcement of morality? Will it come a day where shaking hands with an opposite sex or even sitting too close, for example within 3 feet, will also be deemed indecent by some over-zealous moral-cum-law enforcers?” – Chong Chieng Jen, as quoted from his media statement. The takeaway from this is that defining indecency can be a rather tough affair with no clear black-or-white answer, and it may perhaps be advisable to be more conscientious when out in public. But what if you get asked for duit kopi? Okay so lets set the scene: You and your, let’s say, “close friend” get caught for, let’s say, “hanging out” in a park… if you know what we mean. You’re nervous, knees weak and palms are sweaty, spine’s spaghetti whilst getting lectured by scary men in uniforms about your bad behavior. Actually, most of them aren’t really all that scary, and you’re more likely to get a sound warning and be asked to leave. But what if you get asked for a bribe? Let’s be clear. If you’ve been caught performing acts that can be justified as being indecent (like literally with your pants down) you may very well be in legal trouble. However, it doesn’t mean that you should pay a bribe either for reasons that we’ll get into in an upcoming article. Instead, you should note down which agency/department the officers are from, and lodge a report. If there was no action taken, you may also be able to make a follow-up complaint against the agency or department with the Enforcement Agency Integrity Commission (EAIC), a body that’s been set up to receive and investigate public complaints about any enforcement officers or agencies that misbehave. Reports can be made several ways: In person – At their HQ in Putrajaya Via email – aduan@eaic.gov.my Website – e-Aduan Phone call – 03-8880 5651 / 5627 / 5625 Snail mail – Addressed to their HQ (in the link above) For more information about the agencies/departments under their jurisdiction as well as things you’ll need to prepare, check out our article here. So there you have it. The best answer to this problem is don’t get caught don’t do it! Despite what you or I may believe is decent or fair, it seems wiser to simply do what you need to do in private, away from potential trouble."
"Apakah tugas Speaker Dewan Rakyat sebenarnya? Parlimen Malaysia merupakan salah satu institusi penting dalam sistem pemerintahan negara kita. Badan perundangan ini berfungsi untuk meluluskan undang-undang di peringkat Persekutuan/negara yang biasanya dipanggil Akta (atau Act dalam Bahasa Inggeris). Menurut Perkara 44 Perlembagaan Persekutuan, tiga unsur penting yang menjadi komponen Parlimen adalah: Yang di-Pertuan Agong (YDPA); Dewan Negara; dan Dewan Rakyat. Berdasarkan Perkara ini, kuasa untuk membuat undang-undang peringkat negara adalah terletak pada Parlimen yang mengguna pakai sistem dwidewan (dua dewan/bicameral) yang dinamakan Dewan Negara dan Dewan Rakyat. Setiap kali setelah Pilihan Raya Umum diadakan dan Dewan Rakyat mula bersidang, terdapat satu acara penting yang mesti diselesaikan sebelum sidang dewan dimulakan iaitu pelantikan Yang di-Pertua Dewan, ataupun lebih dikenali sebagai Speaker. Pada dua minggu yang lepas, YB Datuk Mohamad Ariff Md Yusof, mantan Hakim Mahkamah Rayuan telah dilantik sebagai Speaker Dewan Rakyat Kesembilan bagi Parlimen Malaysia ke-14 yang menggantikan Tan Sri Pandikar Amin Mulia setelah Dewan Rakyat dibubarkan pada April lepas bagi memberi laluan kepada pesta demokrasi Malaysia yang dikenali sebagai Pilihan Raya Umum. Pelantikan beliau telah menimbulkan pelbagai isu yang sangat memerlukan penerangan asas dari segi undang-undang untuk difahami oleh setiap rakyat Malaysia. Apakah tugas-tugas Speaker Dewan Rakyat? Secara umumnya, Tuan Yang di-Pertua/Speaker Dewan Rakyat berfungsi seperti moderator yang mempengerusikan dan mengawal selia mesyuarat Dewan Rakyat. Terdapat banyak bidang kuasa yang diberikan kepada beliau bagi memastikan kelancaran sesi mesyuarat dan pematuhan peraturan oleh Ahli-ahli Dewan seperti yang termaktub dalam Peraturan-peraturan Majlis Mesyuarat Dewan Rakyat (PMDR) atau Standing Orders of the Dewan Rakyat. Antara bidang kuasa Speaker Dewan Rakyat adalah: 1. Membenarkan penggunaan Bahasa Inggeris semasa Dewan bersidang Semasa sidang mesyuarat berlangsung, kadang-kadang kita akan terdengar beberapa orang Ahli Dewan akan mengucapkan – “Dengan izin Tuan Speaker, we need to ....” Maksudnya di sini, jika terdapat mana-mana ahli Dewan yang ingin berhujah dalam Bahasa Inggeris, beliau mestilah mendapatkan kebenaran daripada Speaker Dewan Rakyat dengan sekurang-kurangnya mengucapkan frasa sedemikian sebelum menyambung hujahnya dalam bahasa berkenaan. Menurut Peraturan 8 PMDR: 8. Bahasa rasmi Majlis ialah Bahasa Malaysia, tetapi Tuan Yang di-Pertua boleh membenarkan penggunaan Bahasa Inggeris Hal ini adalah bertepatan dengan hasrat memartabatkan kedudukan Bahasa Melayu/Malaysia sebagai Bahasa Kebangsaan yang mesti diutamakan dalam urusan rasmi pemerintahan negara. 2. Menolak sebarang usul yang dikemukakan kepadanya Menurut Kamus Dewan Edisi Keempat, usul bermaksud pendapat yang dikemukakan untuk dibincangkan sebelum dipersetujui atau diterima. Semasa sidang Dewan Rakyat, sudah pasti ramai ahli-ahli Dewan yang bersidang akan membawa macam-macam usul/cadangan untuk penambahbaikan perjalanan Mesyuarat. Dalam hal ini, tidak semua usul/perkara yang dibangkitkan akan diterima oleh Speaker untuk diambil tindakan. Secara rumusannya, Peraturan 18(7) PMDR menyatakan bahawa Speaker Dewan Rakyat mempunyai kuasa untuk menolak sebarang usul yang dibawa oleh mana-mana ahli Dewan atas sebab-sebab: Ahli Dewan berkenaan hanya ingin mengambil ruang untuk bercakap semasa mesyuarat Persoalan yang dibangkitkan telah dibincangkan dan diterangkan oleh pihak Kerajaan Usul tersebut adalah bercanggah dengan mana-mana Peraturan Mesyuarat. Hal ini adalah penting untuk memastikan sidang Parlimen berjalan dengan lancar mengikut Aturan Urusan Mesyuarat yang ditetapkan pada hari tersebut. 3. Membenarkan ahli-ahli Dewan mengeluarkan pertanyaan tambahan Semasa sesi soal jawab antara pihak Kerajaan dengan ahli-ahli Dewan yang lain, sudah tentu akan ada dalam kalangan mereka yang kurang jelas dengan jawapan yang diberikan oleh mana-mana anggota Kabinet. Oleh sebab itu, mereka boleh meminta Menteri/Timbalan Menteri yang berkenaan untuk memberikan penerangan dengan lebih jelas bagi menjawab persoalan yang dikemukakan. Menurut Peraturan 24(3) PMDR: 24. (3) Tuan Yang di-Pertua boleh membenarkan ahli-ahli mengeluarkan tidak lebih daripada tiga pertanyaan tambahan bagi setiap pertanyaan, bagi maksud menerangkan apa-apa butir perkara yang telah diberi jawab lisan... Rumusannya, setiap pertanyaan tambahan yang ingin dikemukakan mestilah tidak melebihi tiga soalan tetapi setiap pertanyaan tersebut mestilah berkaitan dengan jawapan yang diberikan oleh Menteri/Timbalan Menteri yang berkenaan dan belum pernah dijawab oleh beliau sepanjang sidang Parlimen pada tahun tersebut di samping pertanyaan tersebut mestilah tidak menggabungkan beberapa soalan tambahan. Namun, masa yang diberikan oleh Speaker untuk setiap pertanyaan tambahan hendaklah tidak melebihi 30 saat dan Menteri atau Timbalan Menteri diberi masa dua minit 30 saat untuk menjawab soalan-soalan tambahan yang dikemukakan kepadanya. Speaker berkuasa menggantung mana-mana Ahli Parlimen daripada perkhidmatannya! Pada minggu lepas, Ahli Dewan Rakyat bagi Parlimen Bukit Gelugor, YB Tuan Ramkarpal Singh telah diarahkan keluar dari Dewan dan digantung tugasnya selama dua hari atas kegagalan beliau untuk mematuhi arahan YB Speaker Dewan Rakyat untuk menarik balik kenyataan yang dikeluarkannya semasa sidang Dewan. Situasi ini telah menjadi isu hangat apabila beliau (YB Ramkarpal) telah mencatatkan rekod sebagai Ahli Parlimen pertama yang diarahkan keluar dan digantung setelah Parlimen Malaysia Ke-14 mula bersidang! Dari sudut undang-undang, adakah Speaker berkuasa untuk bertindak sedemikian? Menurut Peraturan 44(2) PMDR: 44. (2) Pengerusi hendaklah memerintah mana-mana ahli yang berkelakuan tidak senonoh atau melakukan perbuatan yang menghina Majlis Mesyuarat atau terus tidak mengendahkan kuasa Pengerusi keluar dari Majlis Mesyuarat bagi tempoh tidak melebihi sepuluh hari dan ahli tersebut hendaklah dengan serta-merta keluar dari Majlis Mesyuarat. Sekiranya mesyuarat berakhir sebelum tamat tempoh sedemikian, maka baki tempoh itu hendaklah dibawa ke mesyuarat yang akan datang, melainkan jika Parlimen dibubarkan sebelumnya. Jika Pengerusi tidak menentukan tempoh ahli diminta keluar, tempoh tersebut hendaklah disifatkan sebagai selama dua hari termasuk hari kejadian berkenaan. Berdasarkan peruntukan ini, Tuan Yang di-Pertua Dewan Rakyat mempunyai bidang kuasa untuk mengarahkan mana-mana ahli Dewan Rakyat yang gagal mematuhi peraturan Dewan yang berkaitan di atas keluar dari Dewan dan menggantung perkhidmatannya selama 10 hari atau kurang jika dinyatakan tempohnya atau selama dua hari jika tempoh tidak dinyatakan termasuk hari ahli Dewan tersebut diarahkan keluar. Sekiranya Speaker berpendapat bahawa tindakan ini tidak memadai, beliau boleh menggantung perkhidmatan seseorang ahli Dewan Rakyat untuk tempoh yang lebih lama dengan persetujuan majoriti ahli-ahli Dewan Rakyat menerusi prosedur yang dinyatakan di bawah Peraturan 44(3) PMDR. Jadi… bagaimanakah Speaker Dewan Rakyat dilantik? Pelantikan Yang di-Pertua Dewan Rakyat adalah penting bagi menjamin kelancaran dan kelangsungan institusi Parlimen di negara kita. Oleh sebab itu, calon-calon yang dipilih mestilah memenuhi kriteria yang dinyatakan di bawah Perkara 57(1) Perlembagaan Persekutuan bagi merealisasikan hasrat ini. Dalam bahasa yang lebih mudah, calon-calon Speaker Dewan Rakyat boleh dipilih dalam kalangan ahli Dewan Rakyat atau mana-mana rakyat Malaysia yang layak bertanding dalam pilihan raya Persekutuan (bagi kerusi Parlimen) iaitu seseorang yang telah mencapai umur 21 tahun dan tidak hilang kelayakannya untuk bertanding. Tetapi, jika Speaker dilantik dalam kalangan bukan ahli Dewan Rakyat, beliau hendaklah mengangkat sumpah di hadapan Dewan Rakyat dan dianggap sebagai salah seorang anggota Dewan Rakyat berdasarkan Perkara 57(1A) Perlembagaan Persekutuan. Selain itu, Peraturan-peraturan Majlis Mesyuarat Dewan Rakyat juga menerangkan cara pelantikan Speaker yang merupakan perkara pertama yang hendaklah diselesaikan apabila Dewan Rakyat memulakan persidangan setelah berlangsungnya Pilihan Raya Umum atau jawatan itu menjadi kosong seperti yang dinyatakan dalam Peraturan-peraturan berikut: Peraturan-peraturan mesyuarat pertama selepas pilihan raya 1. Pada hari mula-mula diadakan mesyuarat Majlis selepas Pilihan raya ... maka Setiausaha hendaklah membacakan Pemasyhuran Seri Paduka Baginda Yang di-Pertuan Agong memanggil mesyuarat dan kemudian daripada itu urusan-urusan yang hendak dijalankan pada hari itu termasuklah— (a) Memilih Tuan Yang di-Pertua; (b) Tuan Yang di-Pertua mengangkat sumpah mengikut seperti yang dibentangkan dalam Jadual Keenam dalam Perlembagaan; Dari segi aturan pemilihan Speaker pula, antara intipati/gist syarat yang dinyatakan di bawah Peraturan 4 PMDR adalah seperti berikut: Nama-nama yang ingin dicalonkan oleh mana-mana Ahli Dewan Rakyat mestilah mendapat persetujuan daripada calon tersebut. Nama-nama tersebut mestilah dikemukakan kepada Setiausaha Dewan Rakyat sekurang-kurangnya 14 hari sebelum mesyuarat pertama bermula. Ketika sesi pencalonan, seseorang ahli Dewan Rakyat yang berkenaan hendaklah mencadangkan nama tersebut secara lisan dan diikuti dengan sokongan tanpa sebarang perbahasan/perbincangan. Sekiranya hanya seorang yang dicalonkan, Setiausaha Dewan hendaklah mengisytiharkan nama calon tersebut bahawa beliau telah dipilih atau sekiranya terdapat lebih daripada seorang calon, maka pemilihan akan dilakukan menerusi undi bersurat (menyatakan pilihan menerusi kertas undi) dalam kalangan ahli Dewan Rakyat. Kesimpulannya, Tuan Yang di-Pertua/Speaker Dewan Rakyat mempunyai banyak bidang kuasa dalam melaksanakan tanggungjawabnya semasa sidang Parlimen. Pelantikan seseorang yang berkelayakan dan berkaliber adalah sangat penting bagi mengawal selia urusan mesyuarat Dewan Rakyat dan kelakuan ahli-ahlinya dengan lebih berkesan berasaskan Peraturan-peraturan Majlis Mesyuarat Dewan Rakyat."
"What should you do if you find fake money in Malaysia? Whenever we get our change back after buying something, we rarely (if ever) look through each note and coin to ensure they’re genuine... unless there’s something obviously “off” about them. Most of the time, we only realized that we’ve been passed a dud note when a cashier spots it or when the ink rubs off on our sweaty hands. This applies to coins as well, something that this writer recently found out. I happened to receive a fake 50 Sen coin, which only became obvious after I noticed some imperfections. See if you can tell the difference: There are actually details missing from the Bunga Raya on the right-hand coin, and there are weird bumps all over the coin – not to mention the minting (print) of the coin is also lopsided. On the back, the details on the Wau of the right one are either missing or incorrect – notice especially how the star in the middle seems lazily drawn. You can’t see it in the picture, but the front of the right-side coin is also chipped, revealing a dull, dark surface underneath (something that doesn’t happen with genuine coins). The question that came next inspired this article – we all know that counterfeit money is illegal, but since you weren’t the one printing money, will you still get in trouble for having fake Ringgit on hand? Yes, but only if you knew they were fake You’ve probably heard that bitter joke that “you think I print money is it?” quite often. Well, some people out there actually do print fake banknotes, and they’re worthless if you ever receive them. Bank Negara’s position is that counterfeit banknotes have no value and therefore cannot be exchanged for a replacement, so you should always check any banknotes you receive to be genuine. While you can actually bring defaced GENUINE notes (those that have been scribbled on, damaged, or are just old) to be exchanged for value, counterfeit notes could land you in trouble instead. You can’t just pass it on and let someone else deal with the problem either – Section 489B of the Penal Code states that if you try using banknotes that you know or have reason to believe are forged, you will be punished with up to 20 years of prison and a fine: “Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency note or bank note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine.” Merely owning them can land you in trouble as well under Section 489C, but you still have to know or have reason to believe the banknotes are forgeries. “Whoever has in his possession any forged or counterfeit currency note or bank note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment for a term which may extend to ten years.” This means that no, you won’t get in trouble if you didn’t know your banknotes were counterfeit. So, say you managed to detect a forgery amongst your money - what should you do? Seal the forgeries and hand them to the authorities If you ever receive a counterfeit banknote, take down a detailed account of how you got the banknotes - who gave them to you, where and when the incident happened….. Bank Negara recommends that you delay the person who gave you the forged banknotes (if you can). Do your best to remember how they looked like, as well as any companions they have, or vehicles they are using. This might just give the police a lead on the counterfeiters. As for how to handle the forgeries, don’t write on, cut, or reuse them. Instead, avoid handling them with your bare hands as much as possible (Bank Negara suggests using an envelope or plastic cover - but don’t use ang pow, okay?). Take those forgeries to a police station as soon as you can, and lodge a report. If the suspected forgeries turn out to be genuine banknotes, you’ll get them back. How do you tell if a banknote is fake? Under Section 62 of the Central Bank of Malaysia Act 2009, only Bank Negara has the authority to issue Malaysian currency, whether in notes or coins. For Ringgit to be minted (what we call the making of money), it has to be by or under the authority of Bank Negara. The way Bank Negara protects the issuing of currency is not just with a law, it takes practical measures - by making the Ringgit extremely difficult to copy correctly. One of the most obvious features of a Ringgit note is that it’s printed on high quality cotton paper. What comes a close second is probably the watermark of the Yang di-Pertuan Agong that becomes visible when you hold the banknote under a light (forgeries like to have it printed on top instead). Bank Negara has a set of guidelines here which you can use to identify genuine notes from forgeries. Take note of the note’s characteristics and any telltale signs - they are usually quite obvious, like missing details on the pattern, the colours looking weird, or the Agong’s head being lopsided… If you’re not sure if your notes are genuine or not, a bank can help you verify their authenticity (some security features of the Ringgit require a magnifying glass or UV light to verify)."
"5 soalan lazim mengenai penahanan Najib - terjawab! [Artikel ini diterjemah dari Bahasa Ingeris. Click here for English version] Di satu tengah hari yang indah pada 3hb Julai 2018, tatkala anda sedang melawan rasa mengantuk di tempat kerja selepas melantak nasi daun pisang, anda mungkin terbaca berita tergempar mengenai Dato Seri Najib Razak yang ditahan Suruhanjaya Pencegahan Rasuah Malaysia (SPRM). Kalau dilihat dari satu sudut, kes ini sepatutnya disiasat dari dahulu lagi tetapi dari sudut yang lain pula, banyak persoalan yang timbul dari segi perundangan. Salah satu persoalan yang timbul di peringkat awal adalah tindakan pasukan petugas khas 1MDB yang bertindak menahan Najib walaupun ianya di luar bidang kuasa mereka, di mana ini dijelaskan sebagai salah faham dan pihak SPRM lah yang menahan DS Najib. Tetapi anda mungkin ada persoalan lain yang lebih penting berkenaan bekas Perdana Menteri dan apa yang berlaku seterusnya, seperti isu beliau dibenarkan pulang selepas ditahan. Kami di sini akan cuba memberi penjelasan dari sudut undang-undang dan kami berharap yang anda akan memperoleh pencerahan setelah membaca artikel ini. Jadi, mari kita lihat di bawah: 1. Kenapa DS Najib dibenarkan pulang setelah ditahan? Apabila anda ditahan, anda sebenarnya belum disabitkan bersalah atas apa-apa tuduhan – bukti yang cukup dan kukuh diperlukan dan anda juga akan diberi peluang untuk membela diri. Mahkamah di Malaysia terlibat dalam banyak kes jadi secara lazimnya perbicaraan dijalankan setelah beberapa bulan dari tarikh anda ditahan. Jika anda ingin pulang ke rumah untuk meneruskan kehidupan sementara menunggu tarikh perbicaraan daripada meringkuk di penjara, anda perlu membayar wang ikat jamin. Senang kata, wang ikat jamin ini merupakan satu bentuk “deposit sekuriti” yang membolehkan tertuduh dibebaskan buat sementara waktu sementara menunggu tarikh perbicaraan. [BACAAN LANJUT – Bagaimana saya tahu saya boleh mendapat ikat jamin?] Kesalahan yang disabitkan ke atas DS Najib merupakan kesalahan yang tidak boleh di ikat jamin – di mana ia sebenarnya bermaksud tiada jaminan yang ianya boleh diberi, tetapi boleh diberi atas budi bicara mahkamah. Anda boleh baca perihal ikat jamin ini di artikel di atas. Wang ikat jamin ini memastikan yang anda akan hadir di mahkamah pada tarikh perbicaraan, di mana wang ini tidak akan dikembalikan jika anda gagal hadir. Tetapi timbul pula persoalan jumlah wang ikat jamin. Wang ikat jamin untuk Najib ditetapkan pada kadar RM1 juta setelah dibahas oleh peguam kedua-dua pihak, dengan “dua penjamin (surety)”. Penjamin ini merupakan pihak yang akan memberi jaminan atas ikat jamin anda. Menurut peguam Najib Tan Sri Dr Muhammad Shafee Abdullah, penjamin Najib di sini merupakan anak lelaki dan perempuannya. Anda boleh baca dengan lebih lanjut tentang peranan penjamin di artikel di bawah. [BACAAN LANJUT – Bolehkan saya mendapatkan kembali wang ikat jamin setelah membayarnya di mahkamah Malaysia?] 2. Apa maksud “salah guna kuasa” yang disabitkan ke atas DS Najib? Berbalik kepada tuduhan yang dibuat ke atas DS Najib – beliau dituduh melakukan 3 kesalahan pecah amanah dan 1 kesalahan salah guna kuasa, jadi mari kita mulakan dahulu dengan salah guna kuasa. Kita sering berpendapat yang kita faham akan maksud salah guna kuasa – yang bererti “mendapatkan kelebihan di mana ianya tidak adil untuk pihak lain, dengan menggunakan kuasa yang diberi kepada kita”. Dari segi undang-undang, salah guna kuasa dijelaskan di Seksyen 23(1) Akta Suruhanjaya Pencegahan Rasuah 2009, yang digelar sebagai “kesalahan menggunakan jawatan atau kedudukan untuk suapan”. “Mana-mana pegawai badan awam yang menggunakan jawatan atau kedudukannya untuk apa-apa suapan, sama ada bagi dirinya sendiri, saudaranya atau sekutunya, melakukan suatu kesalahan.” Suapan ini boleh didapati dalam beberapa bentuk iaitu wang, jawatan atau kuasa, pelepasan dari hutang dan tanggung jawab, diskaun, bonus, perkhidmatan, bantuan dan lain-lain. Hukuman bagi salah guna kuasa adalah penjara sehingga 20 tahun dan denda sebanyak tidak lebih dari 5 kali jumlah suapan atau RM10,000, yang mana lebih tinggi. DS Najib dituduh atas kesalahan salah guna kuasa kerana beliau dituduh menyalahgunakan kedudukannya sebagai Perdana Menteri untuk menerima rasuah berjumlah RM42 juta, di mana dia diberi jaminan untuk mendapatkan pinjaman berjumlah RM4 billion dari Kumpulan Wang Persaraan (KWAP – ini berbeza dari KWSP/EPF ya) kepada SRC International Sdn Bhd bagi pihak Kerajaan Malaysia. 3. Apakah itu “pecah amanah jenayah”? “Pecah Amanah Jenayah” pula ditakrifkan dalam Seksyen 405 Kanun Keseksaan (Tiada versi BM rasmi). “Barang siapa, yang dengan apa-apa cara telah diamanahkan dengan harta, ... dengan curangnya menyalahgunakan, harta itu atau menjadikannya bagi kegunaannya sendiri, atau dengan curang menggunakan, atau melepaskan harta itu dengan melanggar apa-apa arahan undang-undang yang menetapkan cara bagaimana amanah itu kena disempurnakan, ... atau dengan bersengaja membiarkan mana-mana orang lain berbuat demikian itu, adalah melakukan “Pecah Amanah Jenayah”. – penekanan dan terjemahan oleh Asklegal Ini bermaksud jika anda diberi kuasa ke atas sebarang harta, dan anda menggunakannya untuk kepentingan sendiri ataupun menyalahgunakannya maka anda melakukan “pecah amanah jenayah”. Hukumannya adalah penjara tidak lebih dari 10 tahun dengan sebatan, dan anda juga berkemungkinan akan didenda. DS Najib dituduh melakukan 3 pecah amanah jenayah kerana RM4 billion yang dipinjam dari KWAP berlaku ketika beliau menyandang jawatan Perdana Menteri, Menteri Kewangan dan Penasihat Emeritus SRC International. 4. Peguam Najib meminta perintah larangan (gag order) media dikeluarkan – apa benda tu? Peguam DS Najib, Muhammad Shafee telah memohon perintah larangan sementara (interim gag order) untuk mengelakkan pihak media (tradisi, digital dan sosial) dari membincangkan “merit kes” – iaitu segala fakta dan bukti kes dan apa sahaja yang memberi andaian bahawa DS Najib bersalah ataupun tidak. Namun begitu, perintah interim ini hanya sah sehingga 8hb Ogos, d mana selepas itu satu perintah larangan media yang rasmi mesti dipohon. Perintah larangan media ini juga dikenali sebagai “perintah sekatan” (suppression order), dan ini tidak banyak diperbincangkan dalam undang-undang Malaysia. Perintah ini biasanya adalah perintah yang diberi mahkamah untuk mengehadkan siaran maklumat . Perintah ini juga sering digunakan untuk memastikan pengadilan kes berlaku dengan adil dan saksama dengan memastikan publisiti kes tidak menyebabkan spekulasi liar dan juga andaian. Perbincangan mengenai kes yang belum dibaca di mahkamah sering mengakibatkan kejadian yang tidak diingini, contohnya di mana seorang ibu warga Australia disalah tuduh membunuh anak perempuan kecilnya selama 32 tahun oleh pihak media dan orang awam. Bantahan awam dan spekulasi media juga turut mempengaruhi perjalanan tugas pasukan forensik kes tersebut di mana mereka telah membuat kesilapan seperti menyangkakan kesan susu coklat dan serbuk tembaga sebagai “kesan darah”. Rumusan – jika tanggapan terhadap satu-satu kes menjadi tidak terkawal, individu yang terlibat mungkin tidak dapat membuat keputusan yang objektif dan mengadili kes tersebut dengan adil dan saksama. Maka perintah larangan media dilaksanakan untuk mengelakan ketidakadilan. 5. Bolehkah DS Najib dilindungi dari tindakan undang-undang kerana beliau bekas Perdana Menteri? Oh, tidak sama sekali! Semua individu, termasuk Yang di-Pertuan Agong harus mematuhi undang-undang. Banyak spekulasi timbul kerana pada tahun 2016, Tun Mahathir menfailkan saman terhadap Datuk Seri Najib Razak bagi tort salah laku dalam jawatan awam (misfeasance in public office) yang (pendek kata) membawa maksud penyalahgunaan kuasa. [BACAAN LANJUT – Tort tu pebenda? Boleh makan ke?] Tun Mahathir menuduh DS Najib menghalang siasatan yang dilakukan ke atas skandal 1MDB. Akan tetapi, mahkamah telah menolak kes ini atas sebab bahawa hanya “pegawai pentadbiran awam” boleh di saman atas kesalahan ini, dan Tun Mahathir tidak boleh memfailkan saman ke atas Najib kerana Najib bukannya “pegawai pentadbiran awam” dalam konteks undang-undang. Beberapa pegawai perundangan tidak bersetuju dengan kenyataan ini, tetapi buat masa ini kita tidak akan mengkaji kedudukan DS Najib sebagai “pegawai pentadbiran awam” dari segi undang-undang. Tetapi untuk tujuan penjelasan, kata kunci di sini adalah “SAMAN”. Tuntutan mahkamah (lawsuit) Mahathir terhadap Najib merupakan kes “sivil” (di antara dua individu, juga dikenali sebagai ‘tuntutan mahkamah’), tetapi Perdana Menteri Malaysia masih lagi tertakluk di bawah undang-undang jenayah (kerajaan boleh mendakwanya) tidak kira jika dia merupakan “pegawai pentadbiran awam” ataupun tidak. Dengan ini, Tun Mahathir telah membuat kenyataan yang kerajaan merancang untuk meminda kod etika kerajaan sedia ada yang akan membolehkan menteri dan ahli parlimen diklsifikasikan sebagai “pegawai pentadbiran awam” – di mana mereka boleh disaman di mahkamah atas sebab salah laku. Jangan sebar andaian kes – ia cuma akan mengeruhkan keadaan Dengan ini kami berharap anda sudah diberi penjelasan yang lengkap tentang undang-undang yang terlibat dalam penahanan Najib, dan di sini kami juga berharap yang anda boleh beri pendekatan yang baru terhadap kes ini. Kes DS Najib akan disebut di mahkamah pada Fabruari 18-28, Mac 4-8 dan Mac 11-15. Cuma ingatlah bahawa semua yang diperbincangkan di sini adalah hanya undang-undang yang terlibat dalam kes ini, dan bukti untuk kes ini belum lagi dipersembahkan di mahkamah. Oleh itu perbincangan mengenai merit kes ini boleh mengakibatkan kes sub judice, di mana jika ini berlaku ia boleh mengganggu perbicaraan kes. Jika ini berlaku, mahkamah akan terpaksa membebaskan Najib sama ada dia bersalah atau tidak. [BACAAN LANJUT – Apa itu “sub judice”?]"
"Is there a legal way to skip the notice period when you resign in Malaysia? One. Entire. Month. You’ve submitted your resignation, but that’s the time you have to wait before you can move to a new employer. Why? Because it’s stated in your current employment contract. If you’re just looking for a new opportunity elsewhere, or it was because of something logistical like you’re moving to another state, then you might miss your boss and colleagues. But if you resigned because you don’t like your work environment, it can feel like forever……. If you’re a senior staff in the company, your notice period might be even longer - like 3 months. But sometimes, circumstances could force you to leave before you can serve the notice period - is there a way to legally skip the notice period if you really need to? Here are a few options you can consider. 1. Negotiate to get your notice period waived Something you might not have realized about contracts is that you can negotiate changes even after you’ve signed it. There’s even a provision on what happens if you alter your contract under our Contracts Act 1950 in Section 63, which states that if you and the other party agree to alter your contract, then the old contract will no longer take effect: “If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.” All you have to do is come to an agreement with your employer to make a change to your contract, or agree with them to waive the notice period (which is also allowed under Section 12 of the Employment Act 1955, if it applies to you). [READ MORE - Are part-timers considered employees or freelancers?] It goes without saying that this method works better if you have a good working relationship with your managers and bosses. Giving a notice period before resigning is commonly used as a leeway so employers can prepare the paperwork, do the proper handovers of your portfolio, as well as look for a replacement for your role. It really depends on whether your employer is able to say “yes” to letting you go earlier, but there’s no harm asking - if you don’t ask, you’ll never know. Failing that, you could also ask to... 2. Offset your notice period with leave This method isn’t usually going to let you skip your entire notice period, but it can shorten it by a lot. A lot of you will be pretty familiar with offsetting your notice period with outstanding leave, and may see it as “standard practice”, but it’s actually not automatic, and must be agreed to by both you and your employer to happen. [READ MORE - Is it legal for my boss to make me work on a public holiday?] People use two main arrangements for this: You and your employer both agree that you will use your remaining X days of leave to offset your notice period You and your employer agree that you will not offset your notice period with your leave, but your employer will pay you extra for the outstanding leave you have (ie. if you have 10 more days of leave, your employer will pay you an extra 10 days of wages, but you must serve your full notice period) There are certain situations where you might not be paid for outstanding leave, usually in cases where your employer provides alternative leave structures that could be abused without regulation. Some of you might also ask if you can apply for unpaid leave to offset your notice period - well, that works the same way as your employer waiving your notice period, and since the unpaid leave still needs to be approved by your boss, there’s no real difference between the two. If even that’s not enough, you might want to consider the drastic approach… 3. Pay the penalty for resigning without notice If you really ABSOLUTELY have to, and the options above don’t work for you, you might have to opt for the last resort - paying the penalty. Your employment contract contains a clause that tells you how early of a notice you need to give before you resign. It’ll usually be under a header saying “termination” or “end of employment” or something similar. That clause will cover both the notice period and an alternative method of ending your employment - it’ll read something like this: “Either party may terminate the employment by serving ___ months notice, or ___ months’ pay in lieu of notice.” This means that either you or your employer can end your employment by serving the notice, or by paying the other person X months of pay. It’s probably not the smartest financial decision you could make, but if you absolutely have to leave the company and nothing else works, just know that this option is there. Sometimes, your new employer might offer to buyout your notice period, which means that they will pay the penalty for you to be released early - which is good news for you because it means your new employer really wants you on board immediately. Again, the “don’t ask, don’t know” rule applies here - if your new employer wants you to come in as soon as possible, don’t be afraid to bring up your notice period and see if they want to buy it out. If you’re being mistreated by your company… We all hope for the ideal workplace, where we’re treated fairly and get to grow in the ways we want - but life isn’t always fair and sometimes you have to deal with overwhelming problems in the workplace. In those situations, you might have another option besides resigning - you could sue for “constructive dismissal”. Constructive dismissal is where you don’t get fired, but the work environment was made difficult for you to perform in, which leads to you resigning. Bullying, threats, and leaving you out of the loop on projects are some examples which could be considered as constructive dismissal - basically it involves things that are a big hindrance to getting your job done. As an example, the case of Justin Maurice Read v Petroliam Nasional Berhad (Petronas) on constructive dismissal actually involved the employee getting attacked by a manager, and his work locker was broken into. If you do have to file a constructive dismissal claim, properly document incidents at your workplace, and keep in mind that you only have 60 days to file a claim. You can learn more about how to file for constructive dismissal in our article linked below. [READ MORE - My boss just fired me for no reason, what can I do now?]"
"Kereta dilanggar oleh pemandu tak berinsurans? Agensi ini dapat membantu dengan PERCUMA [Artikel ini diterjemah dari Bahasa Inggeris. Click here for English version] Cuba bayangkan – anda memandu dan sedang menghampiri lampu merah. Anda mengenakan brek dengan perlahan sehingga kereta anda berhenti. Namun apakan daya, kereta di belakang anda gagal untuk berhenti dan terus melanggar anda. Oleh sebab itu, kereta anda rosak teruk dan lebih-lebih lagi, anda mengalami kecederaan di bahagian leher dan tulang belakang. Kebanyakan dari kita beranggapan yang kita boleh “menuntut insurans dari pemandu” atau dengan lebih tepat lagi, membuat tuntutan kecederaan peribadi pihak ketiga dengan syarikat insurans pemandu yang menyebabkan kemalangan. Dengan itu, anda pun mengupah peguam untuk membuat tuntutan kecederaan. Tetapi bagaimana jika si pemandu yang mengakibatkan kemalangan tidak memiliki insurans atau tidak memiliki perlindungan insurans pihak ketiga? Dalam kes sebegini, peguam mungkin akan menasihatkan anda untuk memfailkan saman terhadap pemandu tersebut. Ini bermaksud pemandu itu akan membayar kos ganti rugi dari poket sendiri ataupun terpaksa berdepan dengan perintah mahkamah jika gagal berbuat demikian. Namun, ini bergantung sama ada pemandu tersebut mampu membayar kos ini, dan tambahan pula proses ini akan mengambil masa yang panjang dan menelan perbelanjaan yang tinggi. Dalam situasi sebegini, anda mungkin boleh meminta bantuan MIB. MIB yang kita maksudkan adalah Motor Insurers’ Bureau, atau pun dalam Bahasa Malaysia, Biro Insurans Motor (BIM) – silalah ke akhir artikel ini untuk mendapatkan maklumat tentang bagaimana untuk menghubungi mereka jika anda memerlukan bantuan mereka dengan segera. Sebelum itu, mari kita lihat apakah itu “insurans pihak ketiga”, jika anda masih tidak faham istilah itu. Perihal insurans motor Dalam konteks insurans kenderaan, ada tiga pihak yang terlibat: Pihak pertama – Pemegang polisi insurans (yakni pemilik kenderaan); Pihak kedua – Syarikat insurans motor; dan Pihak ketiga – pemandu yang terbabit dalam kemalangan, yang menuntut insurans dari pihak pertama. Jika anda memiliki kenderaan, anda sudah sedia maklum yang anda perlu membeli polisi insurans motor sebelum memandu kerana jika tidak, anda boleh didakwa di bawah Seksyen 26 Akta Pengangkutan Jalan 1987 yang membawa hukuman maksimum 3 tahun penjara dan/atau denda sehingga RM1,000. Di sinilah istilah “insurans pihak pertama” dan “insurans pihak ketiga” banyak digunakan. Ada dua jenis polisi insurans yang anda boleh beli, iaitu: Perlindungan menyeluruh/komprehensif (insurans pihak pertama) – Seperti yang jelas pada namanya, polisi ini menyediakan perlindungan yang menyeluruh kepada anda dan pemandu yang terbabit. Perlindungan menyeluruh yang asas merangkumi tuntutan kehilangan atau kerosakan kepada kenderaan anda, kematian atau kecederaan kepada pemandu yang terlibat dan juga kerosakan kenderaan pemandu terlibat. Perlindungan pihak ketiga (insurans pihak ketiga) – Polisi ini memberi perlindungan kepada pemandu lain yang terbabit melalui tuntutan kematian atau kecederaan, dan kerosakan kepada kenderaan mereka; tetapi tuntutan tidak boleh dibuat untuk kenderaan anda. Mungkin anda tertanya-tanya kenapa ada yang ingin mengambil polisi ini. Ini adalah kerana insurans pihak pertama tidak merangkumi kenderaan lama. Untuk tujuan artikel ini kita akan menumpukan perhatian kepada dua jenis polisi ini. Jika anda ingin tahu lebih lanjut tentang polisi lain, anda boleh bacanya di sini. Ada dua jenis tuntutan insurans motor Mari kita tumpukan perhatian kita kepada cara untuk membuat tuntutan insurans pihak pertama dan pihak ketiga. Tuntutan pihak pertama Tuntutan ini dibuat oleh dua pihak: anda dan syarikat insurans. Katakanlah anda terlanggar pokok, syarikat insurans akan menanggung kos membaik pulih kenderaan anda. Selain itu, polisi insurans jenis ini akan melindungi anda dalam situasi di mana anda terlibat dalam kemalangan dengan kenderaan lain di mana ianya bukan akibat kecuaian anda. Ini dikenali juga sebagai ‘own damage knock-for-knock’ dalam istilah insurans. Tuntutan ini amat mudah dibuat berbanding dengan tuntutan pihak ketiga seperti yang akan anda baca di bawah sebentar lagi. Ianya mudah dan cepat untuk membuat tuntutan dengan syarikat insurans anda kerana semuanya diuruskan oleh mereka. Anda hanya perlu menghubungi agen insurans anda dan anda akan diberi alamat bengkel panel terdekat untuk baik pulih kenderaan anda. Namun begitu, tuntutan pihak pertama lazimnya hanya memberi perlindungan untuk kenderaan pemegang polisi. Oleh itu, tuntutan ini tidak termasuk apa-apa kecederaan yang anda alami. Di sinilah anda perlu merujuk kepada tuntutan pihak ketiga. Tuntutan pihak ketiga Untuk tuntutan ini, anda membuat tuntutan dengan syarikat insurans pemandu yang melanggar kenderaan anda dan oleh sebab itu, pegawai insurans anda tidak boleh membantu anda dengan tuntutan ini. Untuk ini, anda perlu diwakili oleh peguam kerana kes tuntutan sebegini boleh menimbulkan persoalan siapa yang bersalah dalam kemalangan yang terjadi di mana ianya mungkin perlu diselesaikan di mahkamah. Tetapi jika dua pihak terbabit dalam kemalangan, syarikat insurans manakah yang akan menanggung kos kemalangan tersebut? Ini bergantung pula kepada pihak mana yang bersalah. Untuk mengenal pasti pihak ini, kedua-dua pihak perlu melaporkan kemalangan di balai polis berhampiran (adalah baik untuk melaporkan kemalangan ini di balai polis cawangan trafik) untuk membuat keterangan dan pihak yang bersalah akan dikenal pasti melalui kedua-dua laporan ini. Maka adalah penting untuk membuat laporan polis sejurus selepas kemalangan berlaku. Mari kita ambil contoh berikut – No Pah King dan Wai Bang Mi mengalami kecederaan akibat kemalangan dan kedua-duanya mempunyai perlindungan insurans komprehensif. No Pah King didapati bersalah kerana dia memandu keluar dengan tergesa-gesa dari kawasan larangan meletak kereta. Oleh itu, syarikat insurans No Pah King akan menanggung kos ganti rugi Wai Bang Mi, dan Wai Bang Mi pula akan membuat tuntutan dengan syarikat insurans No Pah King. Tetapi jika pihak ketiga (pihak yang bersalah) tidak memiliki insurans, kesnya berlainan sekali dari di atas. Walaupun pihak yang bersalah akan dikenakan denda maksimum RM1,000 atau/dan dipenjarakan maksimum 3 bulan, ini langsung tidak akan menanggung kos gantirugi anda. Tetapi syukur dengan adanya MIB, anda boleh menuntut perlindungan kecederaan dengan mereka, walaupun pihak ketiga tidak memiliki insurans. Anda tidak memerlukan peguam pun MIB ditubuhkan hasil usaha kerjasama Kementerian Pengangkutan, syarikat-syarikat insurans Malaysia dan MIB sendiri. Ianya bertujuan untuk membantu mangsa kemalangan yang tidak bernasib baik, di antaranya memberi bantuan kewangan kepada mangsa kemalangan yang tidak dapat membuat tuntutan dari pihak ketiga kerana mereka tidak memiliki polisi insurans. Dan walaupun ianya dikenali sebagai ‘Motor Insurers’ Bureau of West Malaysia’, mangsa dari Negeri di Bawah Bayu dan Bumi Kenyalang (Sabah dan Sarawak lah!) juga boleh membuat tuntutan dengan MIB. Anda boleh mendapatkan maklumat lanjut tentang tuntutan ini di sini, tetapi di bawah adalah rumusan dari apa yang diperoleh di laman sesawang tersebut: Anda mesti membuat tuntutan dalam masa 3 tahun dari tarikh kemalangan Jika anda diwakili peguam yang ingin mengemukakan saman, peguam tersebut mesti memaklumkannya kepada MIB 30 hari sebelum mengemukakan saman. Perlindungan hanya diberi kepada kecederaan akibat dari kemalangan. Tiada perlindungan diberi untuk kerosakan kenderaan. Harus diingat bahawa bayaran dibuat oleh MIB mengikut budi bicara mereka dan jumlah bayaran ditentukan oleh mereka sendiri. Maka anda mungkin tidak akan mendapat jumlah yang penuh seperti yang boleh dituntut dari polisi insurans pihak ketiga, tapi ini lebih baik dari tak dapat satu sen pun, kan? Jika anda ingin membuat tuntutan secara terus dengan MIB, pastikan anda bersedia dengan dokumen-dokumen seperti surat yang menerangkan kemalangan yang berlaku, laporan polis anda dan pihak ketiga, laporan perubatan dan sebagainya, kerana dokumen-dokumen ini diperlukan semasa membuat tuntutan. Bagaimana untuk membuat tuntutan dengan MIB? Untuk membuat tuntutan dengan MIB, sila hubungi mereka di alamat pejabat iaitu Wisma Piam, No. 150-3, Jalan Tun Sambanthan, Brickfields, 50782, Kuala Lumpur ataupun di talian telefon +60322747395. Kemalangan merupakan satu pengalaman yang amat membebankan. Selain dari trauma dan tekanan, banyak perkara yang perlu kita buat selepas sesuatu kemalangan untuk membuat tuntutan peribadi. Oleh sebab itu, amat penting jika kita arif tentang hak dan khidmat sedia ada untuk membuat tuntutan berdasarkan situasi. Dan berhati-hati di jalan raya ya."
"Malaysian criminals go to different courts depending on their crime. Here's how it works If you are a long term follower of AskLegal, you would know that the law is (widely speaking) divided into civil law and criminal law. Criminal cases are when a person commits a crime and the government takes action against them. On the other hand, civil cases are for private lawsuits like you suing another party for breach of contract or when you sue your boss for breaching employment regulations. We covered how there are many different courts in the civil system and what it means in a previous article. Like how there is a court hierarchy for civil cases, a similar hierarchy exists for criminal cases but it works in a slightly different manner. Before we kick things off, a note to bear in mind is that we won’t be covering the Syariah courts or Native courts in this article. If you’ve read our civil courts article, you might get a slight feeling of deja vu because the civil system and the criminal system are both… Based on the same hierarchy Similar to how the civil system works, the hierarchy is meant to facilitate hearings and ensure that the system works well. The courts of first instance and appellate courts make up the system of criminal courts. Courts of first instance Courts of first instance are where the offender is brought in before the court for the first time. These courts are divided into the Magistrates Court, the Syariah Court, and the High Court. Appellate courts Appellate courts are where appeals from the courts of first instance are heard. While like the civil courts, they can only hear appeals from the lower courts, the appellate courts in the criminal cases have the power to listen to cases and make decisions to avoid injustices, in very limited cases. We will discuss this in greater detail below. The appellate courts are made up of the High Court, the Court of Appeal, and the Federal Court. With this quick breakdown in mind, let’s dig deeper into the respective courts. Magistrates Court and Sessions Court The Magistrates Court’s jurisdiction can be found in the Subordinate Courts’ Act 1948 (“SCA 1948”). There are two kinds of Magistrates, a First Class Magistrate and a Second Class Magistrate. The difference between them lies in their jurisdiction powers; their hearing jurisdiction and sentencing jurisdiction. A Second Class Magistrate’s jurisdiction can only be found under section 88 and section 89. In section 88, it is stated that a Second Class Magistrate can only hear cases (hearing jurisdiction) where the offences are punishable with a maximum term of imprisonment not exceeding 12 months or a fine or a combination. While they can hear such offences, the punishment that they can pass (sentencing jurisdiction) cannot exceed 6 months’ imprisonment and/or RM1,000 fine. A First Class Magistrate, on the other hand, has greater powers. In section 85, a First Class Magistrate can hear cases where the offences are punishable with a maximum term of imprisonment not exceeding 10 years and/or fine. As for sentencing them, these Magistrates can sentence them up to 5 years in prison, RM10,000 fine, and/or 12 strokes of the whip. Aside from these “normal” powers, the First Class Magistrates are allowed to exceed their sentencing jurisdiction in two situations: When the law provides for it – for example, the Magistrate is allowed to give out heavier sentences under the Dangerous Drugs Act 1952 When the accused is a repeat offender – the Magistrate is then allowed to punish the accused with the full punishment provided under law. For example, if the offence is punishable with 20 years imprisonment, then Magistrate can impose the full 20 years on the accused The Sessions Court has a higher jurisdiction compared to the Magistrates Court and can hear any offence except those punishable with the death sentence and can pass any sentence except the death sentence. The multi-faceted High Court The High Court in criminal trials wears many hats. It can be a court of first instance, or an appellate court, or even a court that supervises and revises decisions made by the lower courts. The High Court can be a court of first instance because under section 22 of the Courts of Judicature Act 1964 (“CJA 1964”), the High Court can hear any offence and pass any sentence, including the death sentence. Appeals from the lower courts, on the other hand, happen by virtue of section 26. What technically sets the High Court aside from the other courts of first instance and appellate courts is the fact they have supervisory and revisionary powers. Section 35 reads: “In addition to the powers conferred on the High Court by this or any other written law, the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts...” If you are thinking that supervisory and revisionary powers mean that the High Court has the power to supervise and revise the decisions made by the lower courts, you are right. When the High Court realises that an injustice has been caused in the lower courts either through an error in law or through “indolence of those in authority” (as quoted from the case of Hari Ram Seghal), the High Court can step in rectify (revise) the error to ensure that justice is done. This revisionary power can take place any time, even through an informal complaint. For example, in the case of Re A Juvenile, the High Court exercised this power when an unsigned letter alleging jury bias was slipped under the door of a High Court judge. Supervisory powers, on the other hand, happens when the High Court reviews decisions that have been made in the lower courts, for example, supervising whether everything was done in accordance with the law and set criminal procedures. Finally, we are left with the last two courts. The courts of pure appeal When it comes to the Court of Appeal and the Federal Court, these two courts only listen to appeals from the 3 other courts. However, if an appeal comes from the Magistrates Court, it can only be heard in the Court of Appeal if it is a question of law and not a question of fact. To make this clear, let’s take a look at this example: Ah Tan was found guilty of theft in the Magistrates Court. Ah Tan wants to appeal against the question of fact of whether he was at the scene of the crime. The High Court comes to the same finding as the Magistrates Court. Ah Tan can no longer appeal on this question to the Court of Appeal. Ah Tan was found guilty of theft in the Magistrates Court. Ah Tan wants to appeal against the question of law of how theft is defined. The High Court comes to the same finding as the Magistrates Court. Ah Tan can appeal this question to the Court of Appeal. The appellate process deserves its own article because it has a tons of procedures but to end this with a little teaser, the Federal Court has an inherent power to correct any injustice and...we will discuss this further in the next article."
"5 really basic laws that (if followed) will truly make us ""Malaysia Baru"" Whatever your political allegiances, most – if not all – Malaysians are well aware that 2018 is a year that will forever be remembered in the annals of our nation’s history, that being the switch of government for the first time in 60+ years. For many (especially on social media), this came with a rejuvenated sense of hope for transparency and better governance – all encapsulated in the catchy tagline of “Malaysia Baru”. What we might forget, however, is the fact that the task of shaping this ‘Malaysia Baru’ doesn’t rest only in the hands of the government. The truth is, we all have a role to play in shaping our country on a daily basis, and this means that we have to reflect largely on our own actions everyday before telling others what to do. For starters, if there is one simple thing that we can all do to help build ‘Malaysia Baru’, it would be ensuring that we do a better job of following our local laws. That includes the smaller, seemingly mundane laws which many of us overlook or forget amidst our busy lifestyles – or worse still, are not even aware of to begin with, leading to the sarcastic tagline ‘Malaysia Baru, mentaliti lama’. What follows below is a list of five laws that you may have forgotten/overlooked/ignored about over the years, but are still very much in effect regardless of which political party is in charge. 1) Inconsiderate driving You may be in a rush to get to that lunch meeting in KL, and you may feel that swerving in and out of traffic or making sudden turns without turning on your signal light is entirely acceptable. The law reminds us, however, that this certainly isn’t the case. In fact, Section 43 of the Road Transport Act 1987 specifically lists careless and inconsiderate driving as an offence against the law. A person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for another persons using the road shall be guilty of an offence... “Careless and inconsiderate” can be a pretty wide term, but some examples of people charged under this section of the law includes taking corners at speed, bad overtaking resulting in an accident, and ramming through other cars. The penalties? A fine between RM4,000 and RM10,000, imprisonment for up to 12 months, or both. Not just that, repeat offenders are at risk of having their driving license suspended while “P” license drivers may get their license revoked on the first offence. Of course, inconsiderate driving is just one aspect of the law. Other sections that deserve some mention include dangerous driving and drunk driving, to common annoyances like double parking, standing to “chup” parking spots, or the ever-popular cutting queue at junctions. 2) Bribery Unfortunately, bribery is something that doesn’t really need an introduction as it’s something that’s present in almost all levels of society, from high profile political cases to giving “duit kopi” when pulled over by the cops – which explains why our country still fares poorly in the eyes of the Corruption Perception Index as of 2017. While it’s illegal for the authorities themselves to ask for or accept a bribe, evidenced by the recent action that was taken against a traffic police officer, you’d be keen to know that that bribery isn’t a crime for only the accepting party. The one who gives the bribe is equally punishable in the eyes of the law, as seen below: Section 21 of the Malaysian Anti-Corruption Commission Act 2009 – Bribery of officer of public body (In part): Any person who offers to an officer of any public body … any gratification as an inducement or a reward … commits an offence … Section 21 is pretty long as it lists down the “conditions” that would constitute a bribe, but the gist is that if the exchange gives you an advantage over someone else or causes an officer to do something that’s contrary to their duty, it probably counts as a bribe. The punishment? Imprisonment for a maximum of 20 years, along with a fine of at least five times the amount of the bribe or a minimum of RM10,000, whichever is higher. So, as tempting as it may seem to bribe your way out of trouble with traffic police through some duit kopi, remember that you’ll just be contributing RM50 to the overall state of corruption. Otherwise, think about the magnitude of the punishment that you are risking instead. 3) Spitting Been hacking and coughing away since morning, and finally ready to relieve yourself of that blob of phlegm that just dislodged itself from your throat? Afterall, it’s not healthy to swallow it, and no one’s going to mind a green gob on the pavement or in the grass, right? Indeed, spitting may seem like a natural thing to do; afterall it’s not like you can ask your body to stop producing phlegm or saliva. But while it can be pretty unattractive seeing it done in public places (not to mention stepping on it), it can be worse when you’re working in contact with food – like this durian seller who was caught spitting on the fruits he was selling. While it sounds like a pretty outdated law, the Minor Offences Act 1955 actually makes spitting a punishable offence. Section 15 (1) (d) of the Minor Offences Act 1955 – Miscellaneous Nuisances – Spitting (in part) : Any person who— spits in any coffee shop, eating house, school premises or public place or in any trolley-bus, omnibus, railway carriage or other public conveyance or in or near any public road…. But of course the law isn’t totally inconsiderate to your bodily functions as it provides an exception if the spitting is done in a container specifically provided for that purpose (like a spittoon) or into any drain. Other than that, you might be looking at a really hefty fine of RM100. Yeah, you might laugh because you’ve had casual dinners that cost more than that, but try imagining someone’s thick gob of phlegm stuck to your shoe as you’re walking to the cafe. Also, it’s apparently fine to swallow your own phlegm. 4) Littering Malaysians certainly have a wonderful sense of humour when it comes to littering. Wherever there is a sign saying ‘No Littering Here!’, one can almost always find piles of trashed heaped below, as if in mockery of instructions or simply in rebellion. Need we say more? (Image Credit: TallyPress) If you do get caught doing so however, or littering in any public place for that matter, the joke may be on you. Section 47 of the Street, Drainage and Building Act 1974 elaborates that littering in any public place is an offence against the law, regardless of whether the litter consists of simple pieces of paper or large packets of food. It also includes irresponsibly leaving behind pieces of rubbish in a public place after you having finished using them, such as canned drinks or bottles of water. Getting caught for littering may land you with an arrest, along with a maximum fine of RM500 for your first offence and RM1000 for each subsequent offence. If that doesn’t deter you, remember that littering can also be deadly and harmful to others, especially when it is done from places that are high above the ground – as seen during the recent death of a young boy who was struck by an office chair that was thrown out of a flat unit. Check out our full article on littering laws here: [READ MORE: Asklegal’s rubbish article] 5) Illegally sticking posters If there’s one thing all Malaysians are familiar with, especially those of us who live in cities, it would be the omnipresent posters and stickers on signboards, pillars, walls, and even under flyovers advertising anything from quick loans to cheese massages. For those of you who prefer the Queen’s English, these are also referred to as ‘Bills’, as in the “Post no bills” signs you sometimes see on walls. Unless you’re involved in these businesses or have a full time job pasting them up, there’s a really low chance that you’d get in trouble for this. However, we’ve chosen to include this point because it’s a bigger eyesore then public smoking (arguably) – though you can read about the 2017 regulations on smoking in public here. Back to topic, affixing stickers, posters, or any other attachments to the surfaces of property without permission to do is illegal. This holds in the case of both public and private property, as Section 15(2) of the Minor Offences Act 1955 tells us. Property, in this case, refers to: Section 15(2) of the Minor Offences Act 1955 – Affixing bills or otherwise defacing property, etc. (In part): … “property” includes any building, wall, road, fence, tree, lamp standard, lamp or telephone post, traffic sign and notice board. Under this law, a conviction brings a maximum fine of RM1000, imprisonment for a maximum of one year, if not both. There are several other laws that apply to the companies that put up these posters, which we’ve covered in a separate article. [READ MORE: If Ah Long ads are illegal, why do we keep seeing them?] “But the gomen also don’t enforce...” Whenever we publish an article like this, there’ll always be comments about how the laws are useless because they aren’t enforced by the authorities in question. However, enforcement can sometimes be seen as a two-way street. While we should expect our authorities to properly do their jobs, it’s also partially our responsibility to report errant officers and to not be enablers by offering them bribes. [READ MORE: What can you do if the authorities don’t investigate a complaint against their officers] But perhaps something can also be said about needing punishment as a motivator to do (or not do) something which should generally be done out of consideration or plain ol’ civic consciousness whether #its2018 #malaysiabaru or any catchphrase that gets popular on social media :)"
"Adakah perkahwinan antara dewasa dan kanak-kanak dibenarkan di Malaysia? [Artikel asal dalam Bahasa Inggeris. Click here for English version] Baru-baru ini, isu perkahwinan kanak-kanak sudah menjadi bualan hangat selepas laporan mengenai perkahwinan antara seorang lelaki Malaysia yang berumur 41 tahun dengan seorang kanak-kanak perempuan Thai yang berumur 11 tahun telah dilangsungkan di Selatan Thailand. Isu tersebut turut mendapat perhatian para Menteri dan wakil rakyat, termasuklah YAB Timbalan Perdana Menteri, Dato’ Seri Dr Wan Azizah Wan Ismail – yang juga merupakan Menteri Pembangunan Wanita, Keluarga dan Masyarakat – yang menyatakan bahawa perkahwinan mereka adalah bertentangan dengan Enakmen Undang-undang Keluarga Islam. Walau bagaimanapun, insiden ini bukanlah satu perkara yang baharu dan satu-satunya yang berlaku di negara kita. Hakikatnya, Penang Institute, sebuah badan pemikir tempatan telah melaporkan sebanyak lebih kurang 9000 perkahwinan kanak-kanak telah dilangsungkan antara tahun 2010 hingga 2015, melibatkan 6,268 orang Islam dan 2,775 orang bukan Islam. Sebagai rujukan, seorang kanak-kanak didefinisikan dalam Akta Umur Dewasa 1971 sebagai seseorang yang belum mencapai umur 18 tahun. Sebelum kita meneruskan perbincangan lanjut dalam rencana ini, di sini kami ingin menegaskan bahawa artikel ini adalah berkenaan status undang-undang mengenai perkahwinan bawah umur di Malaysia, bukannya sebuah ulasan tentang isu terbaharu atau perkahwinan kanak-kanak secara umumnya. Tetapi sebelum kita berbincang dengan lebih mendalam, pertamanya, satu isi penting yang perlu kita fahami ialah… Orang-orang Islam dan bukan Islam mempunyai sistem undang-undang perkahwinan yang berbeza Bagi memudahkan pemahaman dalam konteks artikel ini, undang-undang perkahwinan bagi orang-orang Islam dan bukan Islam dapat dibahagikan kepada dua jenis seperti yang berikut: Orang-orang Islam – Enakmen-enakmen Undang-undang Keluarga Islam – Undang-undang ditentukan oleh Negeri (berbeza bergantung pada negeri tersebut) Orang-orang bukan Islam – Akta Memperbaharui Undang-undang (Perkahwinan dan Perceraian) 1976 – Undang-undang ditentukan oleh Parlimen (pemakaiannya adalah selaras di seluruh negara) Ringkasnya, hal ini bermaksud undang-undang perkahwinan bagi orang-orang bukan Islam adalah bersifat jelas dan mudah; mengikut Akta Membaharui Undang-undang (Perkahwinan dan Perceraian) 1976, dan terpakai ke atas semua orang bukan Islam di mana-mana negeri seluruh Malaysia. Parlimen boleh meminda (mengubah) sesetengah perkara dalam undang-undang ini jika perlu dan, jika diluluskan, akan terpakai di seluruh negara. Perkara ini juga boleh dirujuk sebagai undang-undang Sivil. Namun, hal ini tidak bersifat jelas dan mudah bagi undang-undang perkahwinan orang-orang Islam yakni Undang-undang Keluarga Islam diluluskan oleh Negeri. Anda boleh memahami hal ini dengan lebih lanjut dengan membaca hasil kajian ini, tetapi yang paling utama ialah, model asas bagi undang-undang yang akan mengawal selia perkahwinan orang-orang Islam telah dibangunkan pada tahun 1984 dalam bentuk Akta Undang-undang Keluarga Islam (Wilayah-wilayah Persekutuan) 1984. Tetapi, Perlembagaan Persekutuan kita juga telah memberikan kuasa kepada setiap negeri untuk meminda dan menguatkuasakan sesetengah Seksyen dalam model asas ini seperti yang diperlukan. Pada hakikatnya, setiap Dewan Undangan Negeri akan mengubah suai sesetengah peruntukan undang-undang bagi memenuhi keperluan sosial dan/atau agama orang-orang Islam di negeri mereka. Di sini anda boleh mendapati perbezaan versi undang-undang tersebut, sebagai contoh: Enakmen Undang-undang Keluarga Islam (Negeri Selangor) 2002 Enakmen Undang-undang Keluarga Islam (Negeri Pulau Pinang) 2004 Enakmen Undang-undang Pentadbiran Keluarga Islam (Negeri Terengganu) 1985 Ordinan Undang-undang Keluarga Islam (Negeri Sarawak) 2001 Di sebalik prinsip perundangan yang dinyatakan di atas, adakah kedua-kedua undang-undang ini membenarkan kanak-kanak bawah umur untuk berkahwin? Kedua-dua undang-undang tersebut membenarkan kanak-kanak untuk berkahwin, tetapi dalam keadaan yang tertentu Kita akan berbincang dengan lebih lanjut mengenai hal ini, tetapi sebagai perbandingan ringkas: Orang-orang bukan Islam (Undang-undang Perkahwinan Sivil) Lelaki yang berumur bawah 18 tahun tidak dibenarkan untuk berkahwin Perempuan yang berumur bawah 18 tahun boleh berkahwin dengan kebenaran Menteri Besar/Ketua Menteri Negeri tersebut Perempuan yang berumur bawah 16 tahun tidak dibenarkan untuk berkahwin Orang-orang Islam (Undang-undang Keluarga Islam) Lelaki yang berumur bawah 18 tahun tidak dibenarkan untuk berkahwin Perempuan yang berumur bawah 16 tahun tidak dibenarkan untuk berkahwin Seorang Hakim Mahkamah Syariah boleh membenarkan perkahwinan bagi mana-mana kanak-kanak di bawah umur ini Seperti yang dinyatakan, bagi orang-orang bukan Islam, Akta Memperbaharui Undang-undang (Perkahwinan dan Perceraian) 1976 adalah terpakai di seluruh negara dan peruntukan yang mengawal selia perkahwinan bawah umur boleh didapati dalam Seksyen 10 Akta ini: 10. Mana-mana perkahwinan yang berupa sebagai diupacarakan di Malaysia adalah tidak sah jika pada tarikh perkahwinan itu salah satu daripada pihak-pihak berumur di bawah lapan belas tahun melainkan jika, bagi seseorang perempuan yang telah genap umur enam belas tahun, pengupacaraan perkahwinan itu telah dibenarkan oleh suatu lesen yang diberi oleh Ketua Menteri di bawah subseksyen 21(2). Jika anda kurang jelas mengenai peruntukan ini, Seksyen 21(2) seperti yang dirujuk di atas menyatakan: 21. (2) Ketua Menteri boleh, menurut budi bicaranya, memberikan suatu lesen di bawah seksyen ini membenarkan pengupacaraan sesuatu perkahwinan walaupun pihak perempuan kepada perkahwinan itu berumur di bawah lapan belas tahun, tetapi dalam apa-apa hal pun tidak boleh memberikan lesen itu sebelum perempuan itu berumur genap enam belas tahun. Apabila dibaca bersama, secara asasnya, Akta ini menyatakan bahawa jika seorang lelaki itu belum mencapai umur 18 tahun semasa perkahwinan dilangsungkan, perkahwinan tersebut tidak akan diiktiraf di sisi undang-undang. Had umur ini juga akan terpakai kepada para perempuan kecuali mereka telah mendapat kebenaran (dalam bentuk lesen yang dikeluarkan) oleh Menteri Besar/Ketua Menteri Negeri mereka. Walaubagaimanapun, kebenaran ini terhad kepada umur 16 tahun sahaja. Tambahan pula, undang-undang juga mewajibkan mereka untuk mendapatkan restu daripada ibu bapa mereka untuk berkahwin sekiranya mereka belum mencapai umur 21 tahun. Bagi orang-orang Islam pula, Seksyen dalam Akta/Enakmen Undang-undang Keluarga Islam berkenaan umur minimum untuk perkahwinan kelihatan sama antara satu negeri dengan yang lain. Contohnya, Seksyen 8 dalam kedua-dua Akta Undang-undang Keluarga Islam (Wilayah-wilayah Persekutuan) 1984 dan Enakmen Undang-undang Keluarga Islam (Negeri Kelantan) 2002 menyatakan perkara yang sama, yakni: Umur minimum untuk perkahwinan 8. Tiada sesuatu perkahwinan boleh diakadnikahkan di bawah Enakmen ini jika lelaki itu berumur kurang daripada lapan belas tahun atau perempuan itu berumur kurang daripada enam belas tahun kecuali jika Hakim Syarie telah memberi kebenarannya secara bertulis dalam hal keadaan tertentu. Dalam erti kata lain, pasangan lelaki mestilah berumur 18 tahun manakala pasangan perempuan mestilah berumur 16 tahun bagi memastikan perkahwinan mereka sah di sisi undang-undang, tetapi seorang Hakim Mahkamah Syariah boleh memberi kebenaran kepada mana-mana pasangan yang belum mencapai umur minimum tersebut untuk berkahwin. Perkahwinan untuk menjaga kepentingan kanak-kanak tersebut? Satu perkara yang mungkin anda perasan ialah kedua-dua jenis undang-undang ini tidak menerangkan kriteria yang jelas bagi membolehkan kanak-kanak bawah umur berkahwin – undang-undang Sivil menggunakan istilah “menurut budi bicara” manakala Undang-undang Keluarga Islam pula menyatakan “dalam hal keadaan tertentu” – dan memberikan kuasa kepada Menteri Besar/Ketua Menteri atau Hakim Mahkamah Syariah untuk membuat keputusan mengenainya. Apabila hal tersebut masih boleh diperdebatkan atas ketakjelasannya, perkara ini membolehkan kedua-dua pembuat keputusan untuk mengambil kira sebab-sebab kebenaran perkahwinan tersebut dimohon; di samping mempertimbangkan situasi sosial dan budaya semasa sebelum membenarkan atau menolak permohonan pasangan berkenaan. Namun, penting juga untuk dinyatakan di sini bahawa Jawatankuasa Fatwa Kebangsaan yang bersidang (bermesyuarat) pada tahun 2014 juga telah memberi jawapan kepada persoalan perkahwinan kanak-kanak bagi orang-orang Islam. Ia membuat kesimpulan bahawa perkara ini hanya boleh dibenarkan jika perkahwinan tersebut adalah untuk kepentingan terbaik buat kanak-kanak itu. Selain itu, mereka juga menyatakan bahawa pihak-pihak berkuasa mestilah mengehadkan syarat perkahwinan kanak-kanak dan memastikan setiap prosedurnya dipatuhi. Jika anda masih kurang jelas, Fatwa merupakan satu keputusan tentang sesuatu hukum agama (yang belum pernah diputuskan lagi) berdasarkan nas al-Quran, hadis, dan sumber hukum lain yang diputuskan oleh Mufti (pakar undang-undang Islam) dan ulamak lain mengenai isu-isu semasa. Definisi ini juga boleh ditemui dalam Seksyen 34(1) Akta Pentadbiran Undang-undang Islam (Wilayah-wilayah Persekutuan) 1993: 34. (1) Mufti hendaklah, atas perintah Yang di-Pertuan Agong, dan bolehlah, atas kehendaknya sendiri atau atas permintaan mana-mana orang yang dibuat melalui surat yang ditujukan kepada Mufti, membuat dan menyiarkan dalam Warta suatu fatwa atau pendapat atas apa-apa persoalan yang belum diselesaikan atau yang menimbulkan pertikaian mengenai atau berhubungan dengan Hukum Syarak. Jadi, atas kepentingan ini, Fatwa yang dikeluarkan ini dilihat sebagai salah satu cara untuk menjawab persoalan perkahwinan kanak-kanak berasaskan perhatian kepada situasi sosial dan budaya pada tahun 2014. Dari sudut pandang undang-undang Sivil pula, beberapa undang-undang telah diperkenalkan yang boleh dianggap sebagai secara sedikit demi sedikit mengambil kira kepentingan kanak-kanak seperti Akta Kesalahan-kesalahan Seksual Terhadap Kanak-kanak 2017 untuk melindungi kanak-kanak daripada serangan pemangsa seksual dan pemujukan halus untuk mendapatkan kepercayaan mereka sebelum melakukan mana-mana kesalahan seksual seperti yang dinyatakan dalam Akta ini. Kesimpulannya, inilah kedudukan undang-undang mengenai isu ini yang berkuatkuasa pada masa kini sehingga ada perubahan secara spesifik yang berkaitan dengan perkahwinan kanak-kanak (sama ada orang Islam atau bukan Islam) dilakukan."
"5 legal questions you might’ve had about Najib’s arrest - answered! One typical hot afternoon on 3 July 2018, you were probably getting sleepy from the weather, trying to stay awake and make progress on your work, when you got the news that Datuk Seri Najib Tun Razak had been arrested by the Malaysian Anti-Corruption Commission (MACC). On one hand, it felt like a case long overdue to be investigated, but on the other hand, there was a lot of confusion about what was going on in legal terms. One of the first concerns to pop up was that the 1MDB task force arrested Najib even though they had no power to do so, although this was later clarified as a miscommunication and the MACC was the one that did the actual arresting. But you probably had other, more pressing questions about our ex-Prime Minister’s arrest and what happened thereafter, like why he was allowed to go home after being arrested. We’ll try to give you a better background on the law behind what happened. Hopefully, you’ll understand his case a little more by the time you finish reading. Let’s get straight into it: 1. Why was Najib allowed to go home after getting arrested? When you get arrested, you’re not actually proven guilty of anything yet - there still needs to be enough evidence and you will be given the chance to stand trial. The courts have a lot of cases to go through, so very often you can only stand trial months after you’ve been arrested. What lets you go home and resume your life instead of waiting in prison is “bail”. Simply speaking, bail is the payment of a “security deposit” in exchange for a temporary release from police custody until the court trial. [READ MORE - How do you know if you can get bail?] The offences Najib was charged with were “non-bailable” - which actually only means that bail is not guaranteed, but can still be granted at the discretion of the court. You can find out more about how that works in our article linked above. Then comes the question of the amount of the bail, which is meant to make sure you attend court - or your money gets forfeited. Najib’s bail was set at RM1 million after some back and forth between the lawyers, with “two sureties” - which was a word you probably didn’t understand. A surety is basically a guarantor for your bail, also called a “bailor”. Najib’s two sureties were his son and daughter, according to his lawyer Tan Sri Dr Muhammad Shafee Abdullah. You can read more about what a bailor does in another one of our articles about bail linked below. [READ MORE - Can you get your bail money back after paying it to Malaysian courts?] 2. What is this “abuse of power” that Najib was charged with? Moving on to his charges - Najib was charged with 3 counts of criminal breach of trust, and 1 count of abuse of power. Let’s start with abuse of power. We usually think we have a decent idea of what “abuse of power” means - something along the lines of “abusing your position or rank to get an advantage that’s unfair to others”. Legally speaking, abuse of power is defined in Section 23(1) of the Malaysian Anti-Corruption Commission Act 2009, called “Offence of using office or position for gratification”. “Any officer of a public body who uses his office or position for any gratification, whether for himself, his relative or associate, commits an offence.” The gratification can take any form, including money, a position or rank, forgiving a loan or obligation, discounts, bonuses, services and favours, etc. The punishment for abuse of power is up to 20 years of prison, and a fine of not less than 5 times the value of the gratification or RM10,000, whichever is higher. Najib was charged with “abuse of power” because he was accused of misusing his position as the Prime Minister to receive a RM42mil bribe, for which he guaranteed a loan of RM4 billion from Kumpulan Wang Persaraan (KWAP, which is different from KWSP/EPF) to SRC International Sdn Bhd on behalf of the Malaysian Government. 3. And what’s “criminal breach of trust”? Now for “criminal breach of trust”, which is defined in Section 405 of the Penal Code. “Whoever, being in any manner entrusted with property, …... dishonestly misappropriates, or converts to his own use, that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, …... or wilfully suffers any other person so to do, commits “criminal breach of trust”. – emphasis added Basically it means that if you’re put in control of any property, and you use it for yourself or against any instructions on how you should use the property, you commit a “criminal breach of trust”. The punishment is up to 10 years in prison with whipping, and you might be fined as well. Najib was charged for 3 counts of criminal breach of trust, because that RM4 billion loaned out by KWAP happened under his care as Prime Minister, Finance Minister, and Advisor Emeritus of SRC International. 4. Najib’s lawyer requested a gag order on the media - what’s that? Najib’s lawyer Muhammad Shafee applied for an interim gag order to prevent the media (traditional, digital, or social) from discussing “the merits of the case” - which refers to any facts and supposed evidence of the case, basically anything that makes assumptions about his guilt or innocence. The interim order will only operate until 8 August upon which there will be an application for an official gag order. A gag order is sometimes known as a “suppression order”, which unfortunately has not been discussed a lot in Malaysian case law. It’s basically an order given by a court to restrict the release of information. They are sometimes used to try and ensure a fair trial in criminal proceedings, by making sure the publicity doesn’t lead to wild speculations and assumptions. Discussions about a case pending trial have sometimes led to disastrous results, such as one Australian mother being wrongly accused of murdering her baby daughter for 32 years by the media and the public. The outcry and speculation even led the case's forensic team to mess up grandly - in their clouded judgment, they mistook chocolate milk stains and some copper dust for “baby blood”. TL;DR - if the perception towards the case is far too twisted, the people involved in the case may not be able to make objective decisions and come to a fair judgment. A gag order is sometimes used to make sure that doesn’t happen. [UPDATE] The High Court recently dismissed the gag order application on grounds that existing laws are already available: ""Those who overstep (in reporting) risk action being taken – such as contempt of court – and these remedies are readily available … I find the application unsustainable. I dismiss this notice of motion."" – Justice Mohd Nazlan Mohd Ghazali, as quoted by The Star. Essentially, what this means is that the media are free to report/discuss the case, but can get into trouble if they do it irresponsibly. Muhammad Shafee (Najib’s lawyer) confirmed that they will be filing an appeal to the Court of Appeal – basically to convince them to disagree with the High Court’s decision and establish the gag order. 5. Is Najib really immune to criminal action because he was the Prime Minister? Quick answer is “no”. Generally, no one is above the law, not even the Yang di-Pertuan Agong. The reason why a lot of rumours came up about this was because Tun Mahathir sued DS Najib back in 2016 for the tort of “misfeasance in public office” - which put simply, means a wrongful use of power. [READ MORE - What’s a tort? Can eat one ah?] You see, Tun Mahathir alleged that Najib had interfered with the probes into 1MDB’s financial inconsistencies. But, the court threw Mahathir’s case out, saying only a “public officer” can be sued for misfeasance, and that he could not sue Najib because Najib was not considered a “public officer” in law. Some legal authorities disagreed on that decision, but for now, we won’t get into the details of whether Najib is in fact a “public officer” in the law. But for the purposes of explaining this point, the keyword here is “SUE” Mahathir’s lawsuit against Najib is what you’d call a “civil” case (between two persons, commonly called a ‘lawsuit’), but whether or not the Prime Minister of Malaysia is a “public officer”, he is still subject to criminal law (where the government comes after you) like everyone else. That being said, Mahathir has said that the government plans to make amendments to the government’s code of ethics, which will make all ministers and members of Parliament “public officers” - which allows them to be sued for misfeasance. Don’t spread any rumours about the case - it makes things worse Now that you (hopefully) have a clearer look into the laws behind Najib’s arrest, you might be able to see the case’s future developments with new eyes. Najib’s case is tentatively set for mention on February 18-28, March 4-8, and March 11-15. Keep in mind that this is just the law behind his case, and any actual grounds for proving him guilty or innocent have yet to be presented in court. Avoiding discussing the merits of the case can help prevent a case of sub judice, which may very well jeopardize the entire trial - if that happens, the court will have no choice but to let Najib go free regardless of actual guilt or not. [READ MORE - What exactly is “sub judice”?]"
"Adakah Tealive akan gulung tikar? Ini cerita dia dari mula... [Artikel ini diterjemah dari Bahasa Inggeris. Click here for English version] Sesiapa yang gila bubble tea mesti ingat waktu Chatime mula-mula masuk Malaysia dulu, semua orang pun beratur panjang macam nak tuntut BR1M. Tapi sekitar Febuari 2017, Chatime tiba-tiba hilang dan Tealive pulak yang keluar. Sebenarnya drama sinetron antara pemberi francais yang berasal dari Taiwan (La Kaffa International Co Ltd) dan juga pemegang francais Malaysia (Loob Holding Sdn Bhd) ni dah mendapat liputan luas oleh media, di mana La Kaffa mendakwa Loob telah melanggar kontrak francais kerana tidak membuat bayaran dan juga menggunakan bahan mentah yang tidak diluluskan. Tak lama lepas tu, La Kaffa tamatkan perjanjian francais dan Loob tukar semua nama kedai mereka kepada Tealive - maka rakyat Malaysia dapatlah kembali menikmati bubble tea yang terlebih dan mahal terlebih gula. Tapi drama ni tak berakhir kat situ je. Baru-baru ni, Mahkamah Rayuan telah meminta Tealive agar memberhentikan operasi mereka, atau dalam kata lain, kena gulung tikar.…. tetapi datang lagi plot twist – Makhamah Persekutuan pula membenarkan Tealive beroperasi seperti biasa. Jadi sekarang, Tealive dibenarkan beroperasi secara sah di Malaysia. Macam mana benda ni mula berlaku? Yang tu kita akan cover dalam artikel yang lain sebab panjang ceritanya. Jom kita cerita daripada awal permulaan drama antara Tealive dengan Chatime… Harapkan pagar, pagar makan francais Pada tahun 2011, La Kaffa melantik Loob sebagai pemegang francais Chatime, dan mereka menandatangani persetujuan francais. Seperti mana-mana francais, pemberi francais akan memberikan hak untuk mengusahakan sesebuah perniagaan menggunakan jenama dan konsep yang dimiliki oleh mereka. Contoh francais antarabangsa yang dibawa masuk ke Malaysia adalah KFC, McDonald’s dan The Coffee Bean. Kalau korang nak baca dokumen penghakiman Mahkamah Rayuan, boleh klik terus di sini. Bila dah jadi pemegang francais, mereka akan dapat bantuan daripada pemilik jenama yang asal. Tapi mereka juga kena patuh kepada persetujuan francais dan undang-undang francais iaitu Akta Francais 1998. Secara ringkasnya, mereka tak boleh menyalahgunakan harta intelek pemegang francais, membuka bisnes dengan produk yang sama, mahupun menggantikan bahan-bahan tanpa kebenaran daripada pemberi francais. Dan inilah sebabnya La Kaffa mendakwa Loob kat mahkamah. Ada dua perkara yang perlu diperhatikan di sini, iaitu: Persetujuan francais antara La Kaffa dan Loob yang dipanggil sebagai Regional Exclusive Representation Agreement (RERA) Seksyen 27 dalam Akta Francais 1998 Halaman 15 daripada dokumen penghakiman mengulang kembali sebahagian daripada persetujuan francais yang menyatakan bahawa Loob tidak dibenarkan untuk terlibat dalam apa-apa aktiviti komersil yang sama atau menyerupai apa yang dibuat dalam kedai francais. Persetujuan francais ini turut menyatakan yang larangan ini masih terlaksana walaupun setelah persetujuan francais tersebut ditamatkan. Jika persetujuan ini dilanggar, Loob perlu membayar denda kepada La Kaffa, termasuklah US$10,000 bagi setiap persetujuan yang dilanggar beserta beberapa peratus daripada hasil jualan bulanan mereka. Korang boleh baca senarai bayaran penuh pada halaman 36 dokumen penghakiman tersebut. Pada masa yang sama, seksyen 27 dalam Akta Francais 1998 menyatakan yang pemegang francais perlu memberi jaminan kepada pemberi francais bahawa mereka tidak akan terlibat dalam sebarang perniagaan yang sama sepanjang tempoh francais dan sepanjang dua tahun selepas tamatnya atau perbehentian awal bagi persetujuan francais tersebut. Tapi walaupun dengan arahan yang jelas daripada kedua-dua dokumen ni, macam mana boleh Tealive tiba-tiba muncul sebulan lepas kontrak Chatime ditamatkan, dan macam mana mereka boleh terus beroperasi? Mahkamah Tinggi tak suruh Loob untuk berhenti jual bubble tea… Kami ada sebut pasal Mahkamah Rayuan pada bahagian awal artikel ni. Ini kerana La Kaffa terpaksa buat rayuan atas keputusan Mahkamah Tinggi yang sebelumnya, di mana La Kaffa minta dua perkara: Perintah larangan (mahkamah mengarahkan seseorang untuk tidak berbuat sesuatu) - Untuk menghentikan Loob daripada mengusahakan Tealive atau apa-apa perniagaan yang menyerupai Chatime Perintah mandatori (mahkamah mengarahkan seseorang untuk berbuat sesuatu) - Loob harus memulangkan kembali kesemua maklumat dan dokumen sulit berkaitan Chatime kembali kepada La Kaffa Untuk nak mudah sebut, lepas ni kami akan panggil La Kaffa sebagai ‘Chatime’ dan Loob sebagai ‘Tealive’ di sepanjang artikel, supaya tak berbelit lidah. Mahkamah Tinggi telah memberikan perintah mandatori, yang membolehkan Chatime mendapatkan kembali dokumen sensitif mereka, tapi tidak memberikan perintah larangan. Salah satu sebab kenapa Mahkamah Tinggi bersetuju dengan alasan Tealive adalah kerana perintah larangan boleh memberi kesan terhadap periuk nasi 800 pekerja serta pelbagai pihak ketiga sepeti pembekal, pegawai bank, dan tuan tanah. Tambahan lagi, pihak hakim berpendapat bahawa jumlah yang Tealive perlu bayar kepada Chatime dah kira cukup la untuk selesaikan kes ni. Kalau korang baca dokumen penghakiman, bila baca bab perintah larangan dan perintah mandatori yang diminta oleh Chatime, korang mungkin akan jumpa perkataan ‘injuction’ (injuksi) dan bukannya ‘order’ (perintah). Buat pemahaman, kedua-dua istilah ni lebih kurang sama je. Tapi kalau korang nak penerangan terperinci, boleh baca kat sini. …Tapi Mahkamah Rayuan suruh! Oleh kerana tak puas hati dengan keputusan Mahkamah Tinggi, Chatime buat rayuan dan kes ni pergi ke Mahkamah Rayuan. Di sini, Mahkamah Rayuan ambil pandangan yang berbeza daripada Mahkamah Tinggi dan bersetuju dengan Chatime - dan mengurniakan perintah larangan. Sebab-sebab utama mereka adalah: Kontrak dan undang-undang menyatakan larangan Mahkamah Rayuan menyatakan yang kedua-dua persetujuan francais dan Akta Francais 1998 menyatakan yang pemegang francais (Tealive) tidak boleh mengendalikan perniagaan yang sama selepas menghentikan persetujuan francais. Wang sahaja tidak mencukupi Mahkamah Rayuan sedar yang persetujuan francais ada menyatakan pampasan jika ianya dilanggar termasuklah US$10,000 bagi setiap kesalahan (walaupun ianya masih belum dibayar oleh Loob kerana kes ini masih lagi berlanjutan). Namun Mahkamah Rayuan turut menyatakan bahawa, walaupun pampasan diberikan, ia tidak bermakna mahkamah perlu terus membenarkan seseorang berbuat sesuatu yang pada asalnya tidak sah di sisi undang-undang. Mereka tidak setuju dengan alasan ‘impak negatif’ dari Tealive Mahkamah Rayuan menyatakan Loob telah melanggar kedua-dua persetujuan francais dan Akta Francais 1998, oleh itu impak negatif yang boleh terjadi kepada pihak-pihak yang berkepentingan (pekerja, pegawai bank, tuan tanah dsb) bukanlah sebab yang munasabah untuk tidak mengeluarkan perintah larangan. Jadi adakah Tealive perlu ditutup? Secara ringkasnya, keputusan Mahkamah Rayuan ini bermakna Tealive harus menghentikan operasi mana-mana cawangan mereka serta sebarang saingan kepada Chatime - jika Tealive tidak mematuhi perintah ini mereka boleh dianggap sebagai menghina mahkamah, dan boleh didenda atau dipenjarakan. Walau bagaimanapun, Tealive dikatakan ingin memohon penggantungan perlaksanaan bagi keputusan Mahkamah Rayuan serta ingin memohon kebenaran untuk memfailkan rayuan kepada Mahkamah Persekutuan. Mungkin ada yang bertanya, kalau Tealive ingin membuat rayuan, adakah perintah larangan masih terlaksana? Bolehkah mereka terus menjalankan perniagaan? Di sinilah datangnya penggantungan perlaksanaan, yang biasanya dipohon oleh pihak yang kalah, untuk memohon agar arahan/keputusan tidak dilaksanakan terlebih dahulu. Dalam kes ini, Tealive memohon kebenaran untuk menangguhkan buat sementara, keputusan daripada Mahkamah Rayuan yang mengarahkan Tealive menutup semua kedai mereka. Sewaktu artikel ini ditulis, Mahkhamah Persekutuan membenarkan Tealive beroperasi seperti biasa sebagaimana yang ternyata pada awal artikel ini. Kami akan buat follow-up dengan artikel baru sebab artikel ini dah cukup panjang, kan? Namun kes ni juga akan diselesaikan di Singapore Sebenarnya apa yang berlaku di mahkamah Malaysia hanyalah sebahagian daripada perbalahan undang-undang antara Chatime dan Tealive. Seperti yang dinyatakan di awal artikel, sebab asal perbalahan ini berlaku adalah kerana Chatime mendakwa yang Tealive (Loob) telah melanggar persetujuan francais; yang membawa kepada tamatnya persetujuan tersebut. Perbalahan asal ini masih belum selesai, dan ia tidak akan diselesaikan di Malaysia, tapi di Singapore. Dalam persetujuan francais ada menyatakan bahawa kedua-dua parti bersetuju untuk menyelesaikan masalah secara arbitari di Singapore. Arbitari berlaku apabila dua pihak bersetuju untuk membiarkan pihak ketiga yang bersifat neutral untuk menyelesaikan masalah bagi mereka. Dalam kata lain, ia bagaikan menyaman seseorang di mahkamah am, tetapi dalam kapasiti swasta (dalam hal ni di Singapore International Arbitration Centre) di mana kes dan penghakimanan boleh dijalankan secara persendirian. (Tapi di bawah undang-undang Malaysia, kebenaran untuk menyelesaikan hal ini di panel arbitari perlulah diberikan oleh mahkamah terlebih dahulu, sebab tu la Chatime tak bawa hal ni ke Singapore terus)."
"If you sign a contract in China (or any country), can you still sue in Malaysia? So you’re running a business and you just landed your first major client! The deal would give you a huge payday and you eagerly draft up the contract and pass it over to your client. The thing is, the client refuses to sign. Instead, he insists that the contract should be governed by the laws of his country...which is not Malaysia. You feel uncomfortable agreeing to having your contract governed by the laws of a foreign country because you have no idea how their laws work and worse...what if your client doesn’t pay up? Does that mean that you have to fly all the way there, find a local lawyer, and sue in their country’s court? Actually, hang on a minute… do contracts even say what country’s laws are used? Yes, and they’re known as ‘governing law’ or ‘choice of law’ clauses This clause can be found in every contract out there. Contracts in Malaysia usually have Malaysian law as the governing clause and the clause reads something like this: “This agreement shall be governed by and construed in accordance with the laws of Malaysia.” But we don’t blame you for missing this part out as most of us either don’t bother or are so intimidated by the fancy lawyer words that we sign contracts without properly reading them. Just be aware though... you’re still bound to whatever you signed, and you can’t use “I didn’t understand what I was signing” as an excuse when things go sour. [READ MORE: What happens if you sign a contract without reading it?] However, if you have international clients or work with international companies, you may find yourself signing contracts which apply laws of foreign countries. This leads you to the ultimate question of whether you can sue in Malaysia if the deal turns south – and we don’t mean Singapore. In order to answer this question, we have to look at 3 things: Section 23 of the Courts of Judicature Act 1964 (""CJA 1964"") The choice of law clause Which is the forum conveniens? This list probably won’t make sense now, so let’s take a look at that they mean individually... Section 23 of the CJA 1964 allows Malaysian courts to judge the case Section 23 basically gives the Malaysian High Courts the jurisdiction to listen to any civil matter if either of the following is fulfilled: Cause of action (reason for suing) arises within the court’s jurisdiction Defendant’s (person you’re suing) resides or has a place of business within the court’s jurisdiction The facts of the case happened within the court’s jurisdiction The land in dispute is within the court’s jurisdiction If you want to see the official version, Section 23 of the CJA 1964 reads: “...the High Court shall have jurisdiction to try all civil proceedings where— (a) the cause of action arose; (b) the defendant or one of several defendants resides or has his place of business; (c) the facts on which the proceedings are based exist or are alleged to have occurred; or (d) any land the ownership of which is disputed is situated, within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court.” This means that if you fulfil any of the four requirements above, the court has the jurisdiction (authority) to listen to your case and judge on it. In its simplest form, having jurisdiction is like having the power to decide or hear the dispute. The higher up the court, the greater jurisdiction they have. It’s like how a Level 5 Pokemon only has the power to battle Levels 1-5 but a Level 100 Pokemon can battle Levels 1-100. The next question is this – if someone uses the law of another country (choice of law clause), will this remove the Malaysian court’s jurisdiction? A choice of law cannot remove a court’s jurisdiction The only thing that can grant (and by extension of that, remove) a court’s jurisdiction is section 23. The moment your case fulfills any of the requirements in section 23, jurisdiction is established. A choice of law clause cannot remove the court’s jurisdiction, and this was the decision in the case of Elf Petroleum v Winelf Petroleum. This means that a local Malaysian court can listen to a case even if the contract says that the law of China (for example) is to be used. Hang on though...how would Malaysian lawyers and judges know Chinese law? The answer can be found in the decision of American Express International Banking Corp v Tan Loon Swan which tells us that when Malaysian courts have to form an opinion or judge on a matter of foreign law, they can rely on section 45 of the Evidence Act 1950. Section 45 is basically an Act that allows the court to rely on expert evidence in order to form an opinion on foreign law. “When the court has to form an opinion upon a point of foreign law...the opinions upon that point of persons specially skilled in that foreign law...are relevant facts.” This means that if Chinese law is the governing law, then the courts will call an expert on Chinese law. If the contract at hand uses Singaporean laws, then an expert on Singaporean laws will be called in. Now, to summarize, everything up to this point has told you that: Malaysian courts have the jurisdiction as long as section 23 is fulfilled This jurisdiction extends to cases which have foreign laws as their choice of law But here comes the plot twist…. Malaysian courts can decline to hear your case because it is not “convenient” Basically, this can be summed up as just because they can, doesn’t mean that they will. This is where forum conveniens comes in. This phrase is Latin for convenient or appropriate forum. It is very important to note that contrary to what the phrase indicates, forum conveniens relates to the issue of appropriateness and it is not an issue of the courts passing the buck to another court for their own convenience. How it works in practice is this – while Malaysian courts might have the jurisdiction to hear a case, they might decline to exercise this jurisdiction if there is a more appropriate forum out there to judge on the matter. For example, if both Malaysian and English courts have the jurisdiction but both your opponent’s and your business is situated in London, the Malaysian courts will likely defer to the English courts. The shipping case of The Spiliada says that if there is another tribunal with competent jurisdiction where the case can be tried more suitably for the interests of parties and the ends of justice, the court can decline to exercise its jurisdiction. We know this sounds confusing so let’s take a look at the case of American Express Bank Ltd v Mohamed Toufic Al-Ozeir which gives you the blow-by-blow for cases like that: The first thing is to bear in mind that the issues of jurisprudence (it sorta means legal system) and forum conveniens are separate Once the court’s jurisdiction is established, then the court will look at the issue of forum conveniens to decide whether or not to deal with the case If you are the plaintiff (person suing) in the case, then you must prove why Malaysia is the most appropriate forum conveniens before the court will allow you to proceed If you are the defendant (person getting sued) in the case, then in order to stay the proceedings (basically hit pause), you must prove the greater appropriateness of the alternate forum At the end of the day, what this basically means is this… You should probably call a qualified lawyer Going back to our first and second points, the only thing that can give a court jurisdiction is in section 23 CJA and a choice of law clause cannot oust (remove) the court’s jurisdiction once it has been established by section 23. This means that if you want to sue in Malaysia, you can on the condition that the facts of the case fulfils the requirements we laid out above and Malaysia is the most convenient forum. As always, remember to hit a lawyer up (as in consult, not physically hit) for more advice because while the law is clear, the application of it in can be difficult and convoluted based on the actual circumstances of the case and the contract you signed. Also, always read your contracts. [READ MORE: How to not fall off your chair when given a 50-page contract]"
"Can Malaysian MPs get in trouble if they discuss sensitive issues in Parliament? The first parliament session under the new government was met with considerable excitement during it’s first day on July 16, and we’re not referring to the Opposition’s walkout protest. This first session would also be an unprecedented one as the previously long entrenched government and opposition have swapped sides in our Houses of Parliament for the first time. As such, heated debates are expected to take place as the new government revisits our current laws in their attempts to revamp the system. However, regardless of whichever parties are in power, MPs cannot do this without frank and open discussions. We take a look at the concept of parliamentary privilege and how it would help MPs create better laws. How did this privilege come about? Long story short, the concept of parliamentary privilege came from the UK. Historically, our country has drawn most of its law from the UK and not surprisingly, as we’re a Commonwealth country. This particular privilege is said to date as far back (at least in writing) as the year 1689, written on a piece of paper called the ‘Bill of Rights’ along with other civil liberties which later became law in UK. The Bill of Rights was introduced at that point in time because the UK Parliament was fighting for independence from the Monarch (the King). Back then, whatever the King said was pretty much law, so the ‘Bill of Rights’ introduced the Supremacy of Parliament and the individual (that’s you) over the King, regular schedule for parliamentary sessions, and free speech; amongst other things. Click here and here if you’d like to delve further into the history. For the purposes of this article, when we say ‘Parliament’ we are referring to the Dewan Rakyat, also known as the lower house in the Parliament. So what kind of privilege does an MP in Malaysia get? In Malaysia, the privilege is found in Sections 3 and 7 of the Houses of Parliament (Privileges and Powers) Act 1952 reproduced as follows: Freedom of speech and debate​​​​ 3. There shall be freedom of speech and debate or proceedings in the House and such freedom of speech and debate or proceedings shall not be liable to be impeached or questioned in any court or tribunal out of the House. This means that a court (such as High Court or Federal Court) or tribunal cannot question the validity of anything said by MPs in the Parliament. So if an MP decides to hurl ‘Yo Momma so fat’ insults at another MP, the court cannot, technically speaking, call into question the validity of those statements. Immunity of members from civil or criminal proceedings for anything done or said before the House 7. No member shall be liable to any civil or criminal proceedings, arrest, imprisonment, or damages by reason of any matter or thing which he may have brought by petition, bill, resolution, motion, or otherwise, or have said before the House or any committee. This means MPs pretty much cannot be arrested or sued for tabling motions (aka proposing a new law or changes to a current law), saying something disagreeable, and so on. Reading both those sections together, you can see the privilege MPs have when it comes to the discussions they may have… and it’s pretty wide. Why is this necessary and when can it be used? As mentioned, the Parliament is where our country’s laws are made, so the topics discussed can be wide-ranging. It makes a lot of sense if MPs are able to debate frankly on issues that would otherwise be considered sensitive to discuss outside the halls of Parliament. [READ MORE: Where does Malaysia get its laws from?] With regards to when and where, it is obvious that this privilege is restricted to MPs while Parliament is in session, and within the walls of the Dewan Rakyat. So basically, you (or an MP) can’t barge into the Dewan Rakyat during lunch break, scream a racist statement or a Yo’ mamma joke, and claim parliamentary privilege. As an example, this privilege does not even extend to press conferences and comments made to the press in the Parliament lobby, as evidenced when Rafizi got arrested for when he disclosed classified documents linked to 1MDB to the press in the Parliament lobby. Things might’ve been different if he disclosed them in a parliamentary session. But since the Public Accounts Committee at that time had yet to conclude its report on 1MDB to present to Parliament, Rafizi could’ve courted contempt of the House under section 9(m) of Houses of Parliament (Privileges and Powers) Act 1952 too. The boundaries of this privilege is why some MPs may occassionally challenge another member to repeat what they said outside Parliament, as the very same remarks could open them to a defamation suit, as when Lim Guan Eng dared Shabudin Yahaya to accuse him again of committing corruption and when Ahmad Husni Mohamad was challenged by Anwar’s then ex-lawyer to repeat his sodomy allegation against Anwar. But there are exceptions to this #privilege… As per Articles 63(2) and (3) of our Federal Constitution, most things can be discussed in Parliament unless they fall under Article 63(4). Article 63(4) then refers you to Article 10(4), which basically says that in the interest of national security or public order, Parliament can pass a law prohibiting the questioning “of any matter, right, status, position, privilege, sovereignty or prerogative” on the issues of: Citizenship (Part III of the Constitution), The use of national language (Article 152), Reservations of quotas for Malays and natives of Sabah and Sarawak (Article 153), or Ruler’s sovereignty (Article 181) To put this in an example, let’s use Bahasa Malaysia, which is our national language as per Article 152 of the Federal Constitution. Let’s say there’s a scenario where public debate to abolish BM as the national language has Malaysians divided to the point of hostility, so the Parliament passes a law that makes it an offence for anyone to call for the abolition of the Malay language in order to maintain public order. Then, an MP decides to do exactly that (i.e. call for the abolition of the Malay language in the Parliament). If he is charged for committing the offence, it is here that the privilege would not protect him. Before you protest and say that’s unfair, this doesn’t mean that MPs cannot discuss these topics, as it will be wholly dependent on whether any laws have already been passed to prohibit the questioning of such matters. If they aren’t any, MPs are free to discuss such issues. Article 63(4) also says that the privilege would not protect MPs if they’ve made seditious remarks or speech. As to what is considered seditious... well that’s another topic for another day. An example of this was when Nurul Izzah was arrested by the previous government for allegedly seditious remarks made when questioning the Federal Court’s decision when she read out her father’s speech in Parliament. Another point to note is that MPs can get themselves into hot soup if they advocate for the abolition of the constitutional position of the Agong or the State Rulers under Article 63(5). Reproduced as follows: (5) Notwithstanding Clause (4), no person shall be liable to any proceedings in any court in respect of anything said by him of the Yang di-Pertuan Agong or a Ruler when taking part in any proceedings of either House of Parliament or any committee thereof except where he advocates the abolition of the constitutional position of the Yang di-Pertuan Agong as the Supreme Head of the Federation or the constitutional position of the Ruler of a State, as the case may be. However, as this article has mentioned, MPs can still discuss or question the conduct of the Rulers, just as long as they do not advocate for the abolition of their positions. Why not watch your MPs in action? Although parliamentary privilege may make MPs feel like they’re invincible, they can be liable for some things they say in Parliament. However, it is only in very specific situations where the limitations can be enforced. This gives MPs the freedom to discuss without fear of being penalised thus helping them – in theory – to create, amend and repeal laws more effectively. So if you have any issues that you want the Parliament to table and discuss, please bring them up to your local MP. And if you’d like to watch your MP in action, RTM has a dedicated Parliamen channel that live streams parliamentary sessions accessible here."
"Malaysia has a new Chief Justice… But what does he do? After the appointment of a new Attorney General - Tommy Thomas, Malaysia is also getting a new Chief Justice in Tan Sri Richard Melanjum, who will be Malaysia’s first ever Chief Justice from East Malaysia. But wait, what’s the difference between the Attorney General and the Chief Justice? You’d probably have heard of an Attorney General in the news, but this might be the first time you’ve heard of the Chief Justice in a while. We’ve covered the role of the Attorney General - who is basically the government’s head lawyer - in an earlier article... [READ MORE - What does the Attorney General of Malaysia do?] So what about the Chief Justice? The Chief Justice is the Head of Malaysian Judges The role of the Chief Justice (CJ) is defined by our Federal Constitution itself, under Article 122(1): “The Federal Court shall consist of a president of the Court (to be styled “the Chief Justice of the Federal Court”), ......” The Federal Court is the highest ranking court in Malaysia. And following that, the CJ is the highest ranking judge of the judiciary in Malaysia. The judiciary refers to the court system and judges - the interpreters and guardians of law in a country. The CJ’s functions differ from the Attorney General (AG) mainly in that they work in different branches of government. The AG advises the government on legal matters, and brings forth criminal cases to be prosecuted; while the CJ is the head of the judges (a bit like their General Manager) - who will be hearing and judging those criminal cases, as well as any other court case in the country. [READ MORE - What are the different ranks of courts in Malaysia?] [READ MORE - Can judges get sued if they make a mistake in Malaysia?] You’d be right to think that not every Tom, Dick, and Harry can become the CJ, so what qualifies you? The CJ is hand-picked by the Agong There are 3 things required to become the Chief Justice, which get progressively harder to fulfill: Be a Malaysian Citizen - difficulty level: easy Have been a lawyer who handles cases in the higher courts OR a member of the judicial and legal services for 10 years - difficulty level: hard Be appointed by the Agong (on advice of the Prime Minister, after consulting the Conference of Rulers) - difficulty level: ??? If that last point confused you, basically the Agong is advised by the Prime Minister on who should be appointed as the Chief Justice, then the Agong consults the Conference of Rulers before making a decision. After being appointed, the CJ takes an oath provided in the Sixth Schedule of the Constitution: “I, ..................................................., having been elected (or appointed) to the office of ............................do solemnly swear (or affirm) that I will faithfully discharge the duties of that office to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution.” The CJ is consulted on for certain matters related to the judiciary, one of the most important among them being who gets to become a judge. The CJ helps the PM choose judges Every judge of the Superior Courts (the Federal Court, the Court of Appeal, and the High Court) of Malaysia is appointed following the procedure in Article 122B(1). They’re appointed by the Yang di-Pertuan Agong, acting on the advice on the Prime Minister - but only after consulting the Conference of Rulers. But when those judges are appointed (other than the Chief Justice himself), the Prime Minister also has to consult the Chief Justice before proceeding… That’s one extra step more complicated than how the Chief Justice is appointed, so don’t worry if your head spun at that - we’ll try to break it down further: PM = Prime Minister CJ = Chief Justice CoR = Conference of Rulers PM wants to appoint a judge → PM consults the CJ → PM then advises the Agong → the Agong consults the CoR → Agong appoints the judge There’s actually a Judicial Appointments Commission set up to recommend candidates to the Prime Minister, but we won’t get into that detail for now. The Prime Minister, or the Chief Justice after consulting the Prime Minister, can also recommend the Agong to remove a judge of the Federal Court. Usually this will be on grounds of misconduct or inability due to a mental or physical illness. The CJ also sits in the Special Court, which tries cases involving royalty If you’ve ever wondered if the royals of Malaysia are above the law - you have your answer now. We actually have a Special Court set up through Article 182 of the Federal Constitution, which is set up to hear trials involving the Yang di-Pertuan Agong, or the Ruler of a State for any crime committed, as well as any civil proceedings (if for some reason the Agong trespasses on your private property and you want to sue him, for example). The only bar is that no legal action can be taken against the Agong or a Ruler unless the Attorney General consents to it (as per Article 183). The judges who comprise the Special Court are the Chief Justice, the Chief Judges of the High Courts (of Malaya, and of Sabah and Sarawak), and two other judges with experience in the Federal Court or a High Court, who are appointed by the Conference of Rulers. Having a high position means… a lot of approvals come from the CJ.. Not only is the CJ involved in the appointment and dismissal of judges, they may also be in charge of decisions like the appointment of Commissioners for Oaths, the appointment of members to the Judicial and Legal Service Commission, even choosing substitute judges to the Federal Court if not enough judges are available. As the CJ, you have to do all of that on top of your usual duties as a judge in the Federal Court. [READ MORE - What is a Malaysian Commissioner for Oaths and what do they do?] Our newly appointed Chief Justice, Tan Sri Richard Malanjum has proposed that the panel of judges in the Federal Court should be selected based on a balloting system - the selection is currently left completely up to the Chief Justice (which can look biased and unfair). In the spirit of not letting the Chief Justice hold too much power, he’s also said he will be adopting a new way of managing the judiciary, by giving the top 4 judges (the Chief Justice, the Court of Appeal President, the Chief Judge of Malaya, and the Chief Judge of Sabah and Sarawak) equal power and responsibility for policy and management of the judiciary."
"Bolehkah anda membawa senjata untuk mempertahankan diri? [Artikel asal dalam Bahasa Inggeris. Click here for English version] Semenjak kecil lagi, kita dinasihatkan untuk menjaga diri kita: “jangan ikut orang yang kita tak kenal”, “jangan keluar bersendirian pada waktu malam”, “jangan masuk lorong gelap”... ada juga yang dinasihati menyimpan senjata dalam kereta – manalah tau kan? Tetapi apakah senjata yang kita boleh bawa untuk tujuan mempertahankan diri? Bukankan sesetengah senjata ini haram? Bergantung kepada jenis senjata, sama ada pisau, kayu ataupun pistol, anda mungkin boleh ditahan jika membawa senjata-senjata ini. Jadi persoalannya adalah bagaimana untuk melindungi diri kita dari ancaman dan undang-undang? Pertama, ada senarai senjata yang tidak dibenarkan sama sekali Harap maklum bahawa pemilikan senjata api adalah salah di sisi undang-undang melainkan anda memiliki Lesen Membawa dan Mengguna di bawah Akta Senjata 1960. Rakan-rakan kami di CILISOS ada menulis artikel mengenai cara-cara mendapatkan lesen di sini. Kita ada undang-undang berkenaan senjata yang tidak dibenarkan di bawah Akta Bahan-Bahan Kakisan dan Letupan dan Senjata Berbahaya 1958. Selain dari namanya yang panjang, akta ini menyenaraikan senjata yang tidak boleh dibawa oleh orang awam, kerana ianya berbahaya. Senjata-senjata ini tersenarai di bawah Jadual 2, iaitu (secara ringkasnya): ‘Flick knife’ – Pisau yang mengeluarkan bilah secara automatik melalui kuasa pusat putaran atau dengan menekan butang, spring dan sebagainya pada gagang pisau. ‘Gravity knife’ – Pisau yang mengeluarkan bilah dari gagang atau sarung melalui tekanan graviti. Alat sebatan/libasan (whip) – Diperbuat daripada rantai basikal atau motosikal, atau seumpamanya. Semua jenis buku lima (knuckleduster). Semua jenis bilah yang boleh disembunyikan (concealed) atau alatan lain yang berupaya digunakan untuk menghiris atau menikam. ‘Bearing scraper’ – Pisau dengan tiga mata yang tajam dan hujung yang runcing. Kapak kecil. Senjata yang dikaitkan dengan agama atau kepercayaan – Sebarang pedang, keris, parang atau pisau yang padanya tertulis atau terukir sebarang perkataan, ayat atau gambaran yang berkaitan dengan sesuatu agama atau kepercayaan. Sebarang jenis pedang atau parang yang kebiasaannya digunakan sebagai senjata dan bukan untuk tujuan pertanian, kegunaan rumah atau taman bercucuk tanam. Lembing dan mata lembing. Panah-silang (crossbow). Senjata elektrik – Patrolite, Stun Gun, Taser, Control Club atau peralatan seumpamanya, yang berkuasa bateri atau dari apa-apa juga sumber tenaga. Panjang cerita, senarai ini mengharamkan senjata yang tidak mempunyai kegunaan lain selain dari mencederakan orang. Hukuman jika disabit bersalah membawa senjata yang dilarang adalah di bawah Seksyen 7(1) iaitu penjara selama 5 hingga 10 tahun. Jadi adakah senarai senjata yang boleh digunakan untuk mempertahankan diri? Adalah salah membawa apa-apa yang boleh mencederakan orang sebagai senjata Di sinilah garis sempadan di antara salah dan tidak salah agak kabur sedikit. Seksyen 6(1) Akta Bahan-Bahan Kakisan dan Letupan dan Senjata Berbahaya 1958 menyatakan bahawa adalah salah membawa senjata untuk kegunaan menyerang (offensive weapon) di khalayak ramai tanpa kebenaran di bawah undang-undang. Jika anda didapati bersalah maka anda boleh dipenjarakan dari 5 hingga 10 tahun dengan sebatan. Tetapi apakah itu senjata untuk kegunaan menyerang? Seksyen 2 (tiada terjemahan Bahasa Malaysia) mengatakan bahawa: “..segala peralatan yang boleh digunakan untuk menyerang seseorang, di mana ia boleh mengakibatkan kecederaan” Ini bertentangan dengan sesetengah andaian di mana undang-undang menyatakan bahawa pisau di bawah 3 inci dibenarkan. Kenyataan undang-undang amat luas untuk mendakwa sesiapa yang membawa apa-apa barang yang mungkin boleh digunakan sebagai senjata, tetapi ianya kurang jelas dari segi apa yang salah dan tidak. Jika mahu, skin komputer pun boleh digunakan sebagai senjata, kan? Tetapi jangan bimbang, kerana apa yang jelas di sini adalah... Alasan untuk anda menggunakan “senjata” tersebut Undang-undang menyatakan bahawa anda mesti membawa senjata yang boleh digunakan untuk tujuan menyerang dengan kebenaran (lawful authority) atau tujuan (lawful purpose) dibawah undang-undang. Misalnya, jika diperiksa semasa sekatan jalanraya, kita harus buktikan yang kita membawa kayu hoki kerana kita bermain hoki; ataupun membawa bokken (katana kayu) kerana kita mempraktikkan seni mempertahankan diri kendo. Apa yang boleh dikira ‘lawful’ atau dibenarkan di bawah undang-undang? Seksyen 6(3) menyatakan bahawa anggota tentera, polis, ataupun pegawai kerajaan yang memerlukan senjata boleh membawa senjata di bawah undang-undang. Senjata juga boleh digunakan sebagai pakaian untuk upacara rasmi. Selain dari pengecualian di atas, anda harus mempunyai alasan yang munasabah untuk membawa senjata. Sebagai contoh jika pekerjaan anda melibatkan penggunaan peralatan yang berbahaya. Kalau anda membawa pisau tajam yang dibalut dalam bonet belakang kereta kerana anda seorang tukang masak, mungkin ianya dibenarkan tetapi bersedialah untuk beri penjelasan jika anda seorang akauntan yang menyembunyikan sebilah parang di bawah tempat duduk kereta. Jadi… bolehkah anda membawa apa-apa untuk mempertahankan diri? Membawa senjata untuk tujuan mempertahankan diri masih lagi salah di sisi undang-undang. Ini adalah kerana tiada pengecualian diberikan untuk alasan mempertahankan diri di bawah Akta Bahan-Bahan Kakisan dan Letupan dan Senjata Berbahaya 1958. Namun anda mungkin diberi pengecualian jika pekerjaan anda melibatkan risiko yang tinggi untuk diancam (seperti peguam), pekerjaan anda melibatkan anda banyak memandu dan bekerja di waktu malam, ataupun apa-apa keadaan yang meletakkan anda di bawah risiko tinggi. Ada banyak cerita di forum Lowyat di mana ada yang dilepaskan oleh pihak polis setelah ditahan kerana memiliki senjata di dalam kereta selepas penjelasan diberikan tetapi lazimnya anda harus memastikan bahawa: Senjata yang dibawa bukannya di bawah Jadual 2 Akta. Anda mempunyai kebenaran di bawah undang-undang. Ianya bukan bertujuan untuk mencederakan sesiapa. Anda tidak berada di kawasan berkadar jenayah tinggi ataupun tempat yang disyaki ketika membawa senjata tersebut. Mari kita lihat kes Kamarusham Bin Zakaria v Pendakwa Raya [2017], di mana Kamarusham dijumpai membawa sebilah pisau di bawah sebuah jambatan di Kelantan pada pukul 11 malam oleh pihak polis. Dia telah pun menjalani hukuman selama 9 bulan di penjara, tetapi ianya dinyatakan bahawa undang-undang bertujuan untuk mengelakkan penggunaan senjata untuk tujuan melakukan jenayah berat. Walaupun ia masih lagi salah untuk membawa senjata yang berbahaya, tetapi para hakim membebaskan Kamarusham kerana keadaan (circumstance) menunjukkan bahawa dia tidak bertujuan menggunakan pisau tersebut untuk kegiatan jenayah. Seperti mana yang dimaklumkan oleh hakim: “Ini bukannya situasi di mana pedang katana dijumpai di bonet belakang kereta yang dibawa olehnya dengan penumpang lain, di mana jika dalam kes ini, ianya boleh diandaikan bahawa dia dan rakan-rakannya baru kembali dari bergaduh; ataupun parang yang penuh dengan kesan darah, atau pedang panjang yang dijumpai padanya ..... walaupun apa yang salah di sini adalah sebilah pisau kecil yang dijumpai di dalam kocek seluarnya yang bertujuan untuk mempertahankan diri sendiri.” – terjemahan dan penekanan diberi oleh ASKLEGAL Anda boleh mempertahankan diri sendiri sekiranya ia sah di sisi undang-undang Kesimpulannya, janganlah bawa apa-apa senjata yang berbahaya jika anda tidak boleh berbuat demikian. Mungkin sebilah parang sesuai digunakan di kebun rumah, tapi cubalah beri alasan yang munasabah jika anda ditangkap menyembunyikannya di bawah tempat duduk kereta. [BACAAN LANJUT: Kadang kala, polis menahan orang yang melindungi diri dari perompak...kenapa?] Polis berhak menahan dan mencari jika anda ditemui dalam situasi yang mencurigakan, jadi jika anda benar-benar perlu membawa sesuatu dengan tujuan mempertahankan diri, pastikan yang ianya sah di bawah sisi undang-undang. Dan jika anda mempunyai alasan yang munasabah untuk membawa sebilah parang, pastikan yang anda lakukannya di siang hari, bukannya pada malam-malam buta."
"What happens to your reward points when a company shuts down in Malaysia? Look inside your wallet and you’ll probably find some stamp cards from your favourite food and beverage outlets. Even if you don’t like keeping any of those, you’re still probably a user of reloadable cards like the Touch ‘n Go service, and maybe Starbucks as well. It’s sometimes difficult to imagine big, well known brands failing, but no company is too big to fail. Some of you are probably old enough to remember the time when people claimed the Lehman Brothers “couldn’t fail” - but look where they are now... Or to take a recent scenario, look at how TeaLive might be forced to cease all operations because of a dispute with Chatime. So what happens if say, a company closes down, and you have a point card from their loyalty program? Does it mean that all your stamps and points are now worthless? What happens to the RM200 balance on your reloadable card? In other words… Can you still get your money back? Broadly speaking, as a customer, you might transact with a company in one or more of these ways: You pay, and you get your item You collect stamps or points, which you can use to redeem rewards You pay to get credits with that company, which you can use later (eg. reloadable cards and e-money) You pay a deposit as security, which will be refunded later - like if you’ll be borrowing the company’s property (eg. bike sharing services and portable wifi services) You wouldn’t have a dispute for number 1 because even if the company disappears, you’ve already gotten what you paid for. But can you still get your money back in the other scenarios? We’ll break them up into 3 categories below. 1. Reward stamps and points Can you get it back? – No Most businesses adopt a loyalty program to encourage first time customers to return and, like the name says, to reward loyal ones. Like their product? Even better since you get some extra value now and then. As a frequent customer, those rewards are as good as cash to you - but could you exchange your stamps and points for cash if the company closed down? No. There’s not much you can do other than try to redeem them before the company actually closes down. You’d be correct to say that these promotions were promised to you by the company, but the promotions are also just add-ons which you didn’t pay for, which means it’s not mandatory for them to give you the rewards. Legally speaking, the reward system of the stamps and points might not form a binding contract either. As per Section 26 of the Contracts Act 1950, contracts need to have what the law calls “consideration” - which is basically a promise to do something in return for the other person doing something as well. Think of it as there must be an exchange of A for B. Because you’re being given a reward system for nothing in return, no contract is formed and the company has no obligation to make good on it. If you look on the reverse side of these cards, there is also usually a term stating that the company has the right to revoke or change the promotion as they see fit, without informing you. It typically reads something like this: “The management reserves the right to alter, revise, or revoke any part of this promotion to its discretion, without prior notice.” The outcome of that is pretty clear - they can choose to cancel the promotion at any time, and you can’t really stop them. 2. Reload credit Can you get it back? – Yes On the other hand, the story goes a lot differently with reloadable cards where you top up credit on the card to use later (like Touch ‘n Go), because you’ve actually paid money in exchange for those credits. So in this case, there IS a valid contract and the company actually owes you money if they shut down. This comes from the area of contract law called “frustration”, which happens when a contract becomes impossible to carry out (nothing to do with the feeling you get when your favourite team loses). It’s given force in Malaysia through Section 57(2) of the Contracts Act: “A contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.” - emphasis added You can read more about how the frustration of contracts work in our dedicated article about it. Basically, a contract becomes frustrated when what is supposed to be done becomes impossible or unlawful to do, which in turn makes it void (no longer takes effect). [READ MORE - How does a contract get frustrated?] The best example for this situation is where, let’s say you have an e-payment card from a coffee chain called Setarbuccs. After a few years in business, Setarbuccs closes down - but you still have RM100 pre-loaded on their card. It’s now impossible for you to spend your card balance, so your contract with Setarbuccs is frustrated (like you). As for the consequences of the contract becoming void, we look to Section 66 of the Contracts Act: “When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under the agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.” - emphasis added This means that since Setarbuccs got money from you for the card balance, they’ll need to refund it if they close down. 3. Security Deposits Can you get it back? – Yes Talking about deposits can be quite confusing, mainly because we make deposits for many different reasons. There’s the deposit that works like a booking fee, called an “earnest deposit”, and then there’s the security deposit, which is an amount paid as security just in case you run away, or fail to pay up. You’re probably most familiar with security deposits being used in tenancy agreements when you rent a room or apartment. [READ MORE - Renting in Malaysia? Here are 5 common legal problems you can easily avoid] Now that we’re talking about security deposits specifically, you probably use a service or two where you need to pay a security deposit. These are usually for services where you need to use something that belongs to the company - like oBike’s bicycles, and the wifi devices you can rent for overseas use. Consider this: if a company that collected a security deposit from you closes down, do they need to return your deposit? The answer is a pretty obvious “yes”, but what if the company can’t pay it back for some reason? Turns out, that company may have just committed a breach of trust. A “trust” is a legal construct where basically you pass your property to someone else, with instructions to use it for a specific purpose. A prime example of this is in wills - a trust is formed by the deceased, giving someone the power to distribute their property to their descendents. [READ MORE - How do trusts work in Malaysia?] A security deposit works along those lines, usually alongside a contract. The contract will state certain conditions when your deposit can be forfeited, like if you don’t pay the utility bills, or making sure you return their wifi device. Specifically, the company is holding onto the money to make sure you fulfill your contractual obligations. Unless you forfeit your deposit, THE MONEY STILL BELONGS TO YOU, so the company must keep the deposit in a separate account, and cannot use that money. To sum it up: If you did not forfeit your security deposit, it must be returned to you when your contract ends. The company is not allowed to touch the money because it doesn’t belong to them. What if they won’t or can’t pay me back? It’s never good news when you hear that the credits you’ve paid REAL money for are now worthless - especially if they went bankrupt. We suggest consulting a lawyer if you need to reclaim big sums, but for anything below RM5,000, you might have an easier way through filing a small claim in the Magistrate Court. [READ MORE - Here's how you file a small claim proceeding in Malaysia] If you have a reloadable card with a bankrupt company, you might not be first in line to collect that debt from them. But in case of security deposits, you might actually get first dibs - because that money never belonged to the company in the first place, so they had no right to use it at all. Each situation is unique and even one small detail in the contract can matter, so it’s best to consult a lawyer if you need to better understand the situation and your options."
"Is child marriage ACTUALLY legal in Malaysia? Recently, the issue of child marriage became a renewed topic of discussion after reports of a marriage between a 41-year old Malaysian man and an 11-year old Thai girl was solemnized in Southern Thailand. The debate even got the attention of ministers and lawmakers, with Deputy Prime Minister Datuk Seri Dr Wan Azizah Wan Ismail – who is also the minster of Women, Family and Community Development – saying that their marriage is void according to Islamic Family Law Enactment. However, while this is the most recent incident, it isn’t the only one. In fact, local think tank Penang Institute reported that nearly 9,000 child marriages took place between 2010 and 2015, involving 6,268 Muslims and 2,775 non-Muslims. For reference, a child is defined in the Age of Majority Act 1971 as someone under the age of 18. Before we continue with the article, it’s important to first state that this article is about the legal status of underage marriage in Malaysia, not a commentary into the recent incident or child marriage in general. But before going into the specifics child marriage, one core point we first need to understand is that… Muslims and non-Muslims have different marriage laws For easy understanding within the context of this article, marriage laws for Muslims and non-Muslims can be broken down as such: Muslims – Islamic Family Law enactments – laws set by state (different depending on state) Non-Muslims – Law Reform (Marriage and Divorce) Act 1976 – laws set by Parliament (same across the country) So what this means is that marriage laws for non-Muslims is pretty straightforward; it follows the Law Reform (Marriage and Divorce) Act 1976, and applies to any non-Muslim in any state across Malaysia. The Parliament can change (amend) certain points of this law if needed and, if passed, will apply across the board. This is also referred to as civil law. However, it’s a little less straightforward when it comes to Muslims as Islamic Family Law is enacted by state. You can read the background of how this came about here, but essentially, the “base model” for the laws that would govern Muslim marriages was developed in 1984 in the form of the Islamic Family Law (Federal Territories) Act 1984. However, the Federal Constitution also gave each state the power to change and selectively enforce certain sections of this “base model” as needed. Effectively, each state’s State Legislative Assembly (Dewan Undangan Negeri) will adjust certain points of the law to fit social and/or religious requirements of the Muslims in their state. This is why you would find different versions of the law, for example; Islamic Family Law (State of Selangor) Enactment 2003 Islamic Family Law (State of Penang) Enactment 2004 Administration of Islamic Family Law (Terengganu) Enactment 1985 Islamic Family Law (Sarawak) Ordinance 2001. But all that being said, do both laws allow for an underaged child to get married? Both laws allow children to marry, but under special circumstances We’ll go into the details later, but as a quick comparison: Non-Muslims (Civil marriage law) Males below the age of 18 are not allowed to marry Females below the age of 18 can marry with the permission of the Chief Minister of the state Females below the age of 16 are not allowed to marry Muslims (Islamic Family law) Males below the age of 18 are not allowed to marry Females below the age of 16 are not allowed to marry A Syariah court judge can allow the marriage of any child under these ages As mentioned, for non-Muslims, the Law Reform (Marriage and Divorce) Act 1976 applies across the board, and laws covering underaged marriage can be found in Section 10 of the Act: 10. Any marriage purported to be solemnized in Malaysia shall be void if at the date of the marriage either party is under the age of eighteen years unless, for a female who has completed her sixteenth year, the solemnization of such marriage was authorized by a licence granted by the Chief Minister under subsection 21(2). In case you’re wondering, Section 21(2) referred above states: 21. (2) The Chief Minister may in his discretion grant a licence under this section authorizing the solemnization of a marriage although the female party to the marriage is under the age of eighteen years, but not in any case before her completion of sixteen years. So read together, the Act basically states that if a male was under the age of 18 at the time the marriage took place, the marriage will not be recognized in the eyes of the law. This age restriction will also apply to females unless they’ve gotten permission (in the form of an issued license)from the Chief Minister from their state, although the cut-off age would be 16 years old. As a side note, the law also makes it compulsory for either party to get permission from their parents to marry if they haven’t reached the age of 21. On the other hand, for Muslims, the section of the Islamic Family Law Act regarding marriageble age appears to be the same regardless of state. As an example, Section 8 of both the Islamic Family Law (Federal Territories) Act 1984 and the Islamic Family Law (Kelantan) Enactment 2002 state the same: Minimum age for marriage 8. No marriage may be solemnized under this Enactment where either the man is under the age of eighteen or the woman is under the age of sixteen except where the Syariah Judge has granted his permission in writing in certain circumstances. In other words, a male has to be 18 years of age and a female has to be 16 in order to be legally married, but a Syariah court judge can give permission for either gender who has yet to reach this age to marry. It should be for the child’s benefit…? So one thing you may have noticed is that both laws don’t specify the exact criteria in which an underaged child can marry – the civil laws use “at his discretion” while the Islamic Family law says “in certain circumstances” – and leaves this decision to the Chief Minister or the Syariah judge. While it can be argued that this can be vague, it also allows the decision-maker to take into account the reasons for that particular marriage; along with current social and cultural considerations before allowing or disallowing it. However, it’s also worth noting that the National Fatwa Committee answered the question of child marriage for Muslims in a 2014 Fatwa, which concluded that it can only be allowed if the marriage was the best interest of the child. Additionally, they also specified that the authorities restrict the conditions of child marriage and ensure that procedures are being followed. If you’re wondering, a Fatwa is an Islamic legal ruling that’s decided by a Mufti (Muslim jurist) and other religious scholars for current issues based on Islamic sources such as the Quran and Hadith. This definition is also found in Section 34(1) of the Administration of Islamic Law (Federal Territories) Act 1993: 34. (1) The Mufti shall, on the direction of the Yang di-Pertuan Agong, and may, on his own initiative or on the request of any person made by letter addressed to the Mufti, make and publish in the Gazette, a fatwa or ruling on any unsettled or controversial question of or relating to Islamic Law. So in that essence, this Fatwa can be seen as a way to address child marriage based on social and cultural concerns in 2014. On the civil side, certain laws have been introduced that can be seen as progressively taking the interests of the child into consideration, such as the Sexual Offences Against Children Act 2017 which protects children against the recent concern of sexual predators and child grooming. But until any changes specifically pertaining to child marriage (whether Muslim or non-Muslim) are made, this is the current legal position on the issue."
"Will modifying your car affect the resale value? We look at 7 popular trade-in myths Ever heard a myth or two about selling used cars in Malaysia? “Repair and polish your car first to get a better price” “Cars with Wilayah plates sell for more” “Bring your car directly to a dealer for a better deal”, and so forth... But how true are these claims actually? What if you took the time and trouble and then got the same price as your friend who didn’t do any of these? We asked you to send us any myths about selling cars that you’ve heard of, and we selected 7 of the most interesting myths (we’ll be in contact with you submitters soon!). To find the answers, we approached someone with a lot of first hand experience on second hand cars - Carsome MY (who have also sponsored this article). Carsome makes it easy to sell your car! Most of us aren’t car experts, so when we want to sell a car, we go to a few dealers to get a comparison - just to see if we can get a better price or second opinion (or third, or fourth..). This usually takes an entire day (or even longer), and it’s exhausting! Carsome can cut all that out for you. You can rest assured that you’re being offered a fair price because they offer you two ways to sell your car: Sell your car to them on the spot Put your car up for bidding to get the best price possible Did we mention that they also get all the paperwork settled for you? You can check their FAQ if you’d like the details on how they work, but it can be as simple as dropping by their shop, and then walking away with the money. All you have to do is book an appointment and go to one of their centres for a free inspection. So back to the topic at hand, let’s look at some widely believed car selling myths with the inspectors at Carsome to see if they are actually true. 1) Japanese cars retain value better than other cars - TRUE You’ve probably heard this so often that it’s one of the reasons you own or considered buying a Toyota or Honda. If you bought a Japanese car with the view of selling it at a good price later, you’re in luck - this myth holds true! “Japanese cars are one of the top automotives in the world in terms of technology. And Malaysia has a good supply of spare parts for Japanese cars too.” - Carsome MY Okay, Japanese cars get better value as second hand cars in Malaysia - but...how good of a deal do you get? We asked Carsome for a rough price comparison and here’s what they said: “For example, a BMW 3 series car will devalue much more after 5 years: RM259k brand new, RM95k after 5 years - a depreciation of 63%. A Toyota Vios devalues much slower: RM80k brand new, and RM50k after 5 years - depreciating only 37.5%.” But aha, is there a difference between a 9 year old Toyota and a 10 year old one, since they hold their value so well? Actually... 2) There’s a big difference between the value of a 9 and 10 year old car - TRUE You’d think that cars drop in value by roughly the same amount each year, but nope! Apparently, a car’s value tends to drop by A LOT once it reaches 10 years of age. The reason is not really anything to do with the physical condition of the car, but is more to do with getting a loan for it. “Yes, cars 10 years or older are much harder to get loans for, and the interest rates are normally higher – that’s why used car dealers tend to offer lower amounts for these cars.” – Frankie, Head of Inspectors at Carsome MY As an example, these are the MyVi EZI’s estimated prices for different years of manufacture (at time of writing): 2010 MyVi EZI (8 years old) - RM 18,000 2009 MyVi EZI (9 years old) - RM 16,000 2008 MyVi EZI (10 years old) - RM 12,000 In essence, it’s a lot harder to sell cars above 10 years old because few buyers can get a loan for them, so they go for a much lower price. 3) Modifications and accessories can affect the value of your car - TRUE The best part about owning your own car for some people is the ability to modify it to your personal tastes and style. Be it sports rims, flashy decals, or even eyelashes for your precious ride, expressing a part of yourself on something you drive everyday can feel really good. Except, your mods and decorations might not be appreciated by the next buyer, which can mean a reduction in your selling price. “They’re bad as car dealers may not like non-original parts, and it’s harder for dealers to find buyers who will appreciate the same modifications. Depending on the brands of accessories, you may get a slightly higher price if you’re using premium brands, otherwise it has no effect on the car price.” – Frankie, Head of Inspectors at Carsome MY This means that if your sports rims really suit your car and make it look that much more appealing, you could actually get a better price for your car (it doesn’t matter if the rims were original). Looks like mods don’t really have a consistent effect on the price, so you’ll have to get your car valued to find out exactly. Now we come to an interesting part of this myth - what if your car has illegal modifications like over-tinted windows and retrofitted HID lights? Well, we found out that illegal mods don’t affect the price because they will be removed by the car dealer. That being said, it’s obvious but worth noting that this won’t keep you out of trouble for the illegal mods while you’re still using the car! 4) Keeping the plastic wraps on the interior parts gets you a better price - FALSE We weren’t sure how many people have heard of this one, but we could kinda imagine the logic behind the myth: if you don’t take the plastic wraps off the seatbelts and the sleek dashboard, you get a “brand new” feeling, and it sort of implies you’ve not really used those parts - good for the next owner, right? Well… We asked Carsome and they said “No, it doesn’t affect the price.” Okay… We dug a little deeper and found out that a damaged interior will affect the resale value, and this goes as far as scratches. So while you won’t get a bonus for keeping the plastic wraps on, you might as well leave them on if it helps you take care of your car’s interior. The interior is usually not too difficult to take care of unless you’ve spilled things like hot drinks in there, but the effect on your car’s value can be pretty big when it comes to the more serious type of damage - accidents. 5) Cars that have been in bad accidents fetch a lower price, even after repairs and part replacements - TRUE If you’re unfortunate enough to get into a car accident, it’s bad enough that you have to get the car repaired, and might even need to foot a medical bill - you still have to face a possible decrease in the resale value of your car. For any accident at all, your car gets devalued for the damage done. But hey, a scratch on the paintjob won’t devalue your car that much. If you can get it patched up nicely, it might not even count. But on the flipside of things, particularly bad accidents will cost your car value permanently, even after you’ve done repairs and replacements. But what makes an accident “bad”? The inspectors at Carsome had a pretty specific criteria for that: “ ‘Bad’ is when you damage the chassis structure of your car, or anything that dents the front as deep as your front tyres.” – Frankie, Head of Inspectors at Carsome MY For the car dummies like this writer, the chassis structure is the bare skeleton of the car that everything else is attached to, like the picture below. So an accident that breaks your headlights won’t cost you as much as damaging the chassis. Think of it as comparing a cut on your arm to breaking your backbone. As for what is a dent “as deep as your front tyres”, imagine getting your car hit directly on the front. A bad dent crushes the front until it is level with your front tyres - like that: In a sense, you could summarize it like this: as long as the parts which are important to the core function of your car (ie. to safely move from one point to another) got damaged, it’s considered a bad accident. 6) License plates with “unlucky” numbers fetch a lower price – TRUE If you’re the superstitious sort, you know that certain numbers are taboo while others are going to bring you good luck and bless you forever. There are those plates with numbers that sound ominous especially in Chinese dialects. There’s the license plates with the number 4, which sounds like “death” in Cantonese and Hokkien, so Chinese Malaysians tend to stay far away from them. Then there are also the oddly specific combinations like “5354”, which actually sounds similar to “neither dead nor alive” in Cantonese. On the flip side, the number 3 is considered lucky because it sounds like “life” in Cantonese, and the number 8 sounds like “prosperity” in Cantonese as well – both of them sure feel better than having four “death”s on your license plate following you everywhere you go. In the end, do these numbers really affect the number the dealer will quote you? Sometimes. According to Carsome’s inspectors, the number usually doesn’t matter for lower value cars, but it does make a difference for higher value cars if the license plate is not attractive. On the other hand, a nice license plate will actually add value to your car. “A good number plate like ‘WWW 1’ will add value to your car if you decide to sell them together.” Speaking of which, what about the letters on your license plate – do those matter? And since we’re talking about customizing the license plate, does your colour choice matter as well? Turns out – they do. 7) Certain license plates and colours get better prices - TRUE This is probably one of the most popular myths, with waaay too many versions out there. Some people think that license plates from certain states fare better than others, for one reason or another. Ivan here has heard Penang plates are better, some say KL ones - so which plates are the real champion here? a) KL license plates get the best prices You read it right, KL license plates apparently command the highest prices. Some of us might think that city-folk are busy people and drive around a lot more - so their car mileages would be higher, which should fetch a lower price. Yes, it’s true that buyers want to get cars with lower mileages. This might sound crazy to you, but it’s exactly why KL cars are sought after - they are usually only driven within the city, which means short distances, which translates to a lower mileage on average. “Those from states like Johor, Kuantan, Pahang, Terengganu, Kelantan, and Penang tend to get lower prices because they generally have high mileage and are flood-prone states.” – Frankie, Head of Inspectors at Carsome MY It might look like non-city folk are getting the short end of the straw here, but floods can severely damage a car. Generally speaking, the worst condition cars to come in for inspection at Carsome are those that have been through floods. Unfortunately, flood damage is also very obvious, and inspectors can spot telltale signs like stains on the seats even after customers have cleaned up their cars. b) Are certain colours better for resale value? Then, there’s the other aspect of a car that people love to pick and choose – colour. Some of us might pick colours like deep red, apple green, and the occasional hot pink to stand out from the crowd of silver, black, and white cars. But if resale value is one of your top concerns when picking a car, you might be better off getting a common colour. Silver, black, and white cars actually pack a better price than other colours. This is mostly because a majority of people still prefer these colours over the rest. When more people want these colours, demand goes up, and so the price follows. “Most Malaysian prefer to buy cars with the colours white, black, and silver - so it’s easier to find a buyer. Other colours such as blue, yellow, and red are not as popular, which can lower the car price.” Bonus - You can get a better price if you buy a meal for your car inspector! Yes, apparently some customers have tried this before. This one is confirmed “false” by Carsome, okay? ;) Otherwise, some of these techniques might be effective at optimizing the resale value, but you may hesitate to use them because it gets in the way of your enjoyment of the car. So if there’s one rule you follow, let it be this: stay accident-free and keep your mileage low. “Always drive safely. You’ll minimize your chances of an accident, which is the important factor not only for your car value, but also for your own safety.” If you’ve got a car you’re thinking of selling soon, how about getting an idea of your car’s value from Carsome? You can book a free inspection with them by filling the form below – with no obligation to sell!"
"Bolehkah korang didakwa kalau tengok porn kat Malaysia? [Artikel asal dalam Bahasa Inggeris. Click here for English version] Budak-budak lejen yang pernah duduk asrama zaman kolej dulu mungkin tahu yang memiliki video lucah adalah satu kesalahan besar. Kalau kantoi dengan warden bukan je malu, tapi boleh kena buang universiti! Tapi itu undang-undang asrama, macam mana pulak dengan undang-undang negara? Hah, inilah yang AskLegal nak bincangkan, sebab soalan ni lah paling banyak ditanya oleh para pembaca. Sebelum tu kita kena tahu dulu, apa yang dikira sebagai ""porn"" kat Malaysia? Nampaknya undang-undang kita takde pengertian khas bagi pornografi, tapi kita ada pengertian bagi ""obscene objects"" atau ""bahan lucah"". Seksyen 292 Kanun Keseksaan ada menyebut ""obscene objects"" yang melingkupi pelbagai jenis bahan termasuklah buku, DVD, dan video klip. Jadi, berita yang hot sekarang berkaitan dengan pihak PDRM memiliki program yang boleh memantau pengguna yang melayari laman lucah. Ia sebenarnya digunakan untuk membendung masalah pornografi kanak-kanak – Malaysia merupakan negara yang paling banyak mengakses pornografi kanak-kanak di Asia Tenggara. Kenalah kata bahawa pornografi kanak-kanak adalah dilarang sama sekali dan merupakan jenayah yang serius. Tapi bagaimana kalau korang tonton pRon yang “biasa” saja? Dalam artikel ni, kami cuma akan membincangkan perlakuan MENONTON porn secara online. Jadi ini tak termasuk perbuatan merakam, membuat, mengedar, menjual, ataupun berkongsi porn, semua tu termasuk dalam rang undang-undang lain yang membawa hukuman berlainan; yang kami harap korang tak terfikirpun untuk terlibat sama. Banyak lagi kerja kat luar sana yang boleh bawak manfaat kepada jiran tetangga. OK semua dah clear kan? Jadi jom kita mula dengan porn jenis retro, yang selalu kita transfer pakai pen drive zaman kolej dulu… Adalah satu jenayah untuk ""memiliki"" bahan lucah Kat sini kami sertakan satu klausa di bawah Seksyen 292 Kanun Keseksaan dalam Bahasa Inggeris (Kanun Keseksaan atau Penal Code tak diterbitkan dalam BM): (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever; Macam-macam aktiviti yang disebut dalam klausa di atas, tapi mungkin yang paling ramai buat adalah ""has in his posession"" iaitu memiliki sebarang bahan lucah termasuklah majalah, gambar, DVD, dan klip video. Tapi undang-undang ni nampaknya hanya terlaksana bagi bahan lucah yang korang 'simpan' – misalnya bila korang klik “save” dan download – dan bukan yang korang tengok kat Internet. Kalau didapati bersalah, korang boleh disaman hingga RM10 ribu, dipenjara hingga 3 tahun, atau kedua-duanya. Bukan tu je, Akta Penapisan Filem 2002 turut menyebut pornografi sebagai satu kesalahan: 5. (1) Tiada seorang pun boleh: (a) ada atau menyebabkan dirinya ada dalam milikan, jagaan, kawalan atau pemunyaannya… apa-apa filem atau bahan publisiti filem yang lucah atau yang selainnya bertentangan dengan kesopanan awam. Akta ni lebih menumpukan kepada bahan lucah dalam bentuk filem. Pesalah boleh disaman daripada RM 10 ribu ke RM 50 ribu, dipenjara hingga 5 tahun, atau kedua-duanya sekali. Kalau korang ingat, satu kes yang melibatkan Akta ini pasal ""Trio Datuk T"" yang menunjukkan video lucah seseorang yang menyerupai Datuk Seri Anwar Ibrahim. Pesalah-pesalah semuanya kena bayar saman (sebab tak nak masuk penjara). Satu lagi kes yang femes berlaku pada tahun 2016, di mana ""sex blogger"" Alvin Tan dan gelfren dia meletakkan gambar lucah kat blog mereka. Kedua-duanya didakwa dibawah Akta ni tapi dibebaskan pada tahun yang sama. Jadi korang tau yang korang boleh disaman atau dipenjara kalau korang kantoi sorokkan DVD porn bawah tilam korang. Tapi macam mana pulak kalau korang stream terus daripada laman web, contohnya yang hujung perkataannya sama bunyi dengan Abu Lahab? Tengok porn online, secara teknikalnya, tak boleh didakwa Setakat ni, memang takde undang-undang tentang perlakuan menonton porn secara online. Tapi apa yang kita ada adalah Kod Kandungan Komunikasi dan Multimedia Malaysia, dan juga laman web yang disekat oleh Suruhanjaya Komunikasi dan Multimedia Malaysia (SKMM). Kod Kandungan ni agak luas liputannya, daripada porn ke sebarang bahan yang mengandungi bahasa kasar, termasuklah dalam iklan. Jom kita tengok apa yang dinyatakan tentang pornografi: Sebarang pemaparan kegiatan seks yang pada pertimbangan orang bersifat eksplisit dan; pornografik adalah dilarang sama sekali. Ini termasuklah sebarang bentuk kandungan yang menyerupai pornografi. Maknanya pornografi tak boleh ditonton secara offline sekalipun. Walau bagaimanapun, ini hanyalah kod tatalaku, bukannya Akta yang diluluskan di Parlimen, jadi kiranya korang masih tak melanggar undang-undang. Kod ni turut menyatakan salahlaku bagi pornografi kanak-kanak, dan macam klausa kat atas tadi, adalah “dilarang sama sekali”. Tapi kesalahan ni bukan setakat ada dalam Kod Komunikasi ni je, tapi adalah sebuah jenayah serius di bawah Akta Kesalahan-Kesalahan Seksual Terhadap Kanak-Kanak 2017. Pornografi kanak-kanak memang salah di sisi undang-undang dan kalau didapati bersalah boleh dikenakan hukuman denda, penjara, dan rotan. Satu lagi perkara yang boleh dibuat oleh kerajaan adalah menyekat laman web. Sejak sekitar tahun 2000, SKMM telah menyekat macam-macam jenis laman web, bukan setakat laman pornografi je, tapi juga laman web yang berbaur ‘hasutan’, laman perjudian, dan laman cetak rompak. Contohnya laman web bagi game “Fight of the Gods” pun pernah kena sekali. Pendek cerita, janganlah download Nak diringkaskan, ini dua perkara yang boleh berlaku pada korang dari segi undang-undang: Korang boleh didakwa kalau korang ditangkap memiliki bahan lucah. Majalah lucah, gambar atau video yang tak senonoh dalam komputer atau smartphone korang, termasuklah yang korang tangkap sendiri waktu berasmara-dana tu. Tak kisahlah kalau komputer/smartphone/iPad tu korang punya ke tak, tapi kalau korang ditangkap dengannya, memang padah. Kalau korang tengok porn secara online, secara teknikalnya korang tak melanggar sebarang undang-undang dunia. Undang-undang bukan dunia, itu lain cerita. Sebarang benda yang berkaitan dengan pornografi kanak-kanak memang salah, dunia mahupun akhirat. Sebelum kitorang tamatkan artikel ni, ada beberapa statistik yang agak… menarik untuk direnungkan dan ditermenungkan. Malaysia dapat tempat ke-8 bagi “negara dengan tempoh sesi paling lama” yang menonton porn secara online, manakala wanita Malaysia pulak dapat tempat ke-7 di dunia yang menonton porn guna smartphone/tablet. Kalau nak detail lagi, bandar dengan tempoh sesi paling lama dekat Pornhub.com pulak adalah Kuala Terengganu dan Kota Bahru. Akhir kata, daripada korang lihat porn, apa kata korang lihat ke dalam hati dan bermuhasabah tentang diri sendiri."
"Cop petak parking dengan berdiri di dalamnya - salah ke dari segi undang-undang? [Artikel asal dalam Bahasa Inggeris. Click here for English version] Pernah tak korang pusing dalam mall, letih pusing tiga-empat tingkat, dan akhirnya nampak parking kosong. Tapi bila korang sampai je, tiba-tiba ada sipolan yang berdiri (atau duduk, atau baring, atau buat handstand, apa-apa la) kat situ untuk cop parking. Dengan kuasa Mordor, akan menghukummu. Gambar dari YouTube. Benda ni bukan orang Malaysia je yang buat, tapi adalah perangai sejagat. Ada sesuatu insiden kat New York, viral cerita seorang lelaki yang baru je nak masuk parking, tiba-tiba ada sorang perempuan berlari untuk cop parking tu, mak dia siap join lagi. Macam apa yang mamat tu cakap, (alih bahasa secara kasar) “Ini parking untuk kereta, bukan parking untuk perempuan lah!” Lelaki tu akhirnya mengalah sebab banyak kereta tunggu kat belakang, tapi nasib baiklah ada perempuan lain yang baik hati offer parking dia. Kalau kita pun, mungkin takde masa nak layan. Biarlah bertekak sampai berbuih mulut pun, kalau orang tu tak nak blah nak buat macam mana ye tak. Tapi korang tau tak… ada undang-undang khas yang ditulis untuk situasi macam ni. Cop petak parking memang satu kesalahan Tapi kalau main cop tiang takpe. Gambar dari The Vocket. Cop parking ni bukan je menyusahkan orang lain, tapi boleh membawa bahaya kat diri sendiri. Katakanlah driver tak nampak korang berdiri kat petak tu dan terus masuk, tak ke bahaya? Ada satu kes ekstrim kat KL bila seorang emak suruh anak dia tunggu selama 90 minit untuk cop parking, tengah-tengah panas pulak tu! Berdiri untuk tempah petak parking memang dinyatakan sebagai satu jenayah di bawah Seksyen 50(3) Akta Pengangkutan Jalan 1987. Bahagian “gangguan dan desakan menyalahi undang-undang” ni menyatakan: “Jika mana-mana orang melainkan dengan kuasa yang sah, berada di atas mana-mana jalan atau di mana-mana tempat letak kereta bagi maksud mendesak mana-mana orang lain berkenaan dengan penjagaan atau pencucian sesuatu kenderaan motor, atau bagi maksud mengarahkan mana-mana pemandu sesuatu kenderaan motor berkenaan dengan meletakkan kereta di atas jalan atau di tempat itu, dia melakukan suatu kesalahan.” Seperti apa yang korang boleh baca, undang-undang ni pun terpakai buat orang yang offer nak jaga atau cuci kenderaan korang. Dan oleh kerana undang-undang ni tak menyatakan sebarang tempat tertentu, ia boleh diguna pakai kat tempat awam mahupun premis peribadi (contohnya shopping mall). Di bawah Seksyen 119, biasanya penalti untuk kesalahan ni adalah denda sehingga RM2 ribu atau penjara sehingga 6 bulan. Kesalahan berulang boleh didenda sehingga RM 4 ribu dan/atau penjara 12 bulan. Sebagai update, pihak PDRM juga mengesahkan maklumat ini di Facebook: Jadi apa yang korang boleh buat? Haha... #taklawakpunAskLegal. Gambar dari The Inquirer. Biasanya bila benda ni jadi, ada dua perkara yang mungkin korang terfikir nak buat… (tak termasuk bertekak sampai berbuih mulut): Drive perlahan-lahan ke petak parking untuk takutkan orang yang cop parking tu Viralkan gambar atau video kat media sosial Tapi kedua-dua benda ni tak digalakkan sebenarnya, sebab… Drive perlahan-lahan ke petak untuk takutkan orang tersebut Perbuatan menghalang orang lain daripada parking mungkin satu jenayah, tapi melanggar orang dengan kereta pun jenayah jugak. Kalaupun korang tak steamroll dorang sekalipun, perbuatan menakut-nakutkan orang lain boleh disabitkan di bawah Kanun Keseksaan (tiada penterjemahan online) Seksyen 503 – kesalahan menakutkan secara jenayah: “Barang siapa mengugut hendak mendatangkan kepada seseorang apa-apa bencana kepada tubuh, nama baik atau harta... dengan niat hendak menyebabkan kegentaran kepada orang itu… adalah melakukan kesalahan menakutkan secara jenayah.” Viralkan gambar/video kat media sosial Zaman sekarang ni, apa-apa benda pun boleh jadi viral. Tapi melainkan korang tau apa yang korang buat, korang mungkin boleh melanggar undang-undang lain. Sebagai contoh, memalukan orang kat media sosial boleh dikira sebagai jenayah. Jadi daripada upload gambar tu kat Facebook, baiklah korang upload kepada pihak berkuasa yang berhampiran, sebabnya… [BACAAN LANJUT – Mengutuk orang di laman sosial boleh mangakibatkan masa dalam penjara] Korang boleh buat laporan dan buatkan mereka disaman Gambar dari Astro Awani. Oleh kerana korang dah tau yang main cop parking ni dikira sebagai jenayah, korang boleh buat laporan ke Jabatan Pengangkutan Jalan (JPJ). Mungkin ada antara kita yang tak berapa yakin sama ada pihak berkuasa ni buat kerja ke tak, tapi sekurang-kurangnya kita tunaikan tanggungjawab kita dulu sebagai rakyat. Antara cara untuk buat laporan ke JPJ (dengan gambar/video) adalah: Hantar Whatsapp ke 011-511 5252 Hantar emel ke aduantrafik@jpj.gov.my Telefon 03-8886 6412 Pastikan gambar/video tersebut ada tunjuk nombor plet pesalah, termasuklah kesalahan dorang. Korang juga perlu sertakan: Maklumat peribadi korang (termasuk IC) Lokasi Tarikh dan masa Nombor plet Keterangan tentang perkara yang berlaku Kalau orang lain kena, korang pun boleh backup dia jugak Lepas ni, kalau benda ni berlaku kat korang, mungkin korang boleh slow talk dengan siapa-siapa yang cop parking tu pasal undang-undang ni. Sambil dapat parking, sambil mendidik. Tak pun kalau ia terjadi kat orang lain, korang boleh back up dorang tanpa mengira bangsa, agama, atau parti politik apa yang dorang sokong. Barulah muhibbah. Jadi jangan lupa bookmark artikel ni untuk dipamerkan sekiranya situasi ni berlaku. Tak pun print terus Akta Pengangkutan Jalan Seksyen 50(3) dan bawa bersama korang ke mana saja. :p"
"5 basic things you should always do when signing contracts in Malaysia You sign an employment contract to accept your job, a hire purchase contract to buy your car, and a loan agreement to buy your house... Whether we realize it or not, we sign contracts all the time, even to get something as simple as checking the “I agree” box when signing up for an online service. They’re often called by slightly different names: contract, agreement, mutual covenant… but in Malaysia they are all governed by the Contracts Act 1950. But for contracts on paper, you get asked to do some things that seemingly don’t make sense, like putting an initial on every page on two (or more) copies of the same contract. But why would you do that other than to boost pen sales and give you carpal tunnel? We do little things when signing contracts that we don’t always understand the reason for, but they can be quite important when it comes to making sure that the contract works. To start, we need to begin with one of the foundations of how contracts work… 1. Remember to sign! (and put down the date) It’s so obvious that it seems silly to mention, but people have been known to get caught up and forget to sign their contracts. But did you know that even if you don’t sign, the contract can still take effect? [READ MORE - Can I sue someone who promised to marry me (but doesn't)?] It might surprise you to know that actually, signing the contract is not absolutely necessary for the contract to be valid! You can actually form a legally-binding contract over coffee and conversation. To cut out having to explain a whole bunch of legal terminology: a contract contains a set of proposals, which two people can agree to. To make a proposal, you just have to offer to do something, in exchange for the other person doing something else: Contracts Act 1950 - Section 2(a) “when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to the act or abstinence, he is said to make a proposal;” The reason why we sign contracts instead of relying on words of honour is, well, words aren’t exactly the best guarantee, and it’s very difficult to prove exactly what a person said without recording it in one form or another. The easiest way to prove that a contract exists is pulling out a piece of paper with two signatures on it - something we practice so much that you might not have known why we do it in the first place. You also usually put down the date when you sign a contract, usually next to or below your signature. This is yet another underappreciated detail when we sign contracts. It’s usually more important when your contract is time sensitive and you need a definite date when the contract started operating. For example, if you’re renting an apartment from someone, you need to put a date to when the contract takes effect. Without a date, who can say for sure that you rented this apartment on 15th May 2018, and not 15th May 2015? Suddenly, you could get accused of owing 3 years of rent because no one can prove for certain when you started renting. That isn’t the most likely example that could happen to you, but maybe you can imagine the kind of situation where you apply for a loan in March, but because you didn’t put a date down, here comes a dispute on whether you actually applied in February and your instalment is already 1 month late. So always make sure you sign off and date those contracts. Some contracts will state an “effective date” somewhere in them, which means that’s the date the contract will come into effect, but it doesn’t hurt to date the contract when you sign either way. 2. Do not sign any drafts of the contract Sometimes your arrangement requires a customized contract because the “standard template” that’s usually used just isn’t suitable. In these situations, you’d usually get either your lawyer or their lawyer to draft a contract, which would be reviewed and revised before you sign it. If you’re not actually finalizing what the contract should be yet, you should not put your signature on any drafts you send or receive. Doing so would amount to accepting the contract, and you might run into issues changing it later on unless you come to an agreement with the other party. Section 4(2) of the Contracts Act states that: “The communication of an acceptance is complete— (a) as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor; and (b) as against the acceptor, when it comes to the knowledge of the proposer.” This means that: If you signed the contract and sent it out, it binds you the moment the other party signs it. If you received the contract and sign it, it binds you when the other party knows that you’ve signed. Depending on how you’ve structured your communications, signing a draft might not be an issue because the other party won’t be signing it anyway. But it’s best to play safe and not sign any drafts at all - if you were supposed to pay RM10,000 but a typo made the contract say RM100,000 instead, you have a binding contract on your hands if the other party signs it, and that could put you through unnecessary hassle. To be clear, you can still write a new agreement with the other party to get the old draft rescinded (basically means “cancelled”) - but because you don’t know how cooperative the other party will be, it’s best not to let yourself land in this situation in the first place. 3. Make sure to read every attachment Pretty much everyone these days has signed some sort of contract online. A prime example is Apple’s terms of service - most of us just skip the text and click “I Agree” right at the end. Partly it’s because there’s just so much to read, but mostly it’s because we wouldn’t understand it even if we did. [READ MORE - What happens if you sign your contract without reading it in Malaysia?] [READ MORE - How to not fall off your chair when given a 50 page contract in Malaysia] When you sign contracts that involve receiving some sort of service, they usually involve a “Privacy Policy” - which is how the company plans to use your personal data and protect your privacy, or a set of “Terms and Conditions” which are like additional rules to your contract. These attachments to your contract are binding upon you, whether you read them or not. So it’s best to make sure you understand what you’re getting yourself into. The argument that you didn’t read it and therefore it doesn’t apply to you doesn’t stand well in court because as long as you were provided with the documents, it’s assumed that you should have read them. The attachments could be a separate bundle of documents that the other party must provide to you for reference, but it can also be provided to you in a link, like for online contracts (so don’t get fooled by how simple it can look to sign up for something online). Make sure you understand the legal and practical consequences of your contract and not just rely on what the dealer is explaining to you (they might have it wrong, not to cheat you but because they don’t know any better). Keep a reference of the additional documents apply to your contract. If any disputes do come up or you have any questions about how something works under your contract, you’ll know where to look for answers, as well as the rights and responsibilities you and the other party have. 4. Always ask for a copy The practical reason to ask for a copy of any contracts you sign is this: you need to be informed of what you’ve signed so you have a record of your rights and responsibilities in the contract. How would you fulfill a duty if you don’t know what that duty is? It would be ridiculous if you had to memorize exactly what you signed. If you’re not given a copy of your contract, you should ask because, legally speaking, the other party is not required by law to furnish you with a copy. While that might be totally fine if have complete trust in the other party, but otherwise it’s best to play safe. If only the other party has the contract, there’s always the potential for fraud. As an example, a dishonest person might change the terms on the contract without telling you, or might print an entirely different contract and just attach it to the page with your signature. If a dispute arises and you don’t have a copy, you don’t have many ways to prove that the contract was not the original. In case you need to prove any facts in a contractual dispute, you should make sure that your copy of the contract is either an “original”, or a certified photocopy. If the contract is an “original”, it means you received one of the 2 copies of the contract which were both signed. This is to comply with some requirements in the Evidence Act 1950 (Sections 61-65), the details of which we’ll not get into for this article. 5. Sign every page of the contract It’s a pain to flip through that thick contract and sign on every single side, but this move is actually recommended by lawyers for a few reasons: You make sure that you’ve received the entire contract The other party gets an acknowledgement that you have read and understood the contract If any extra lines or pages are added without your permission, those won’t have your signature, so you can easily show that you did not agree to them Signing every page is doubly important in cases where you never get a copy - which is usually the case when you sign contracts with service providers like for your internet and mobile phone plans. But not to worry, you actually have certain protections under the Consumer Protection Act 1999, which deals with unfair contract terms. In summary, unfair terms are any terms that are oppressive, or release the dealer from too many responsibilities, and generally anything that makes life extra difficult for you. These protections exist because these service contracts are often in standard form and you don’t get a chance to negotiate, they can be complex and you have to rely on the attendant’s explanation given to you (which may or may not be accurate), and the service provider is very often allowed to change the terms of service as they please. One example is those no refund policies that sound pretty unfair or even ridiculous - a lot of them are actually illegal. [READ MORE - 5 ways you can (possibly) get around a no refund policy] Always read your contract and make sure you understand When you sign a contract, it’s best to make sure you understand exactly what you’re signing, and what would happen in case certain scenarios pop up. It might be tempting to skip reading everything and just get the agreement settled, but the contract outlines your legal rights and responsibilities, which you’ll need to know if a dispute pops up. Take the time to go through each part and get at least a rough overview - some contracts can have really cutthroat terms that you should bring up, and possibly even refuse to sign until they are changed. Consult a lawyer if you have to, especially with high value contracts like for property and business."
"Why does Malaysia have different courts and what do they do? You should probably know that Malaysia has a court system with different types of courts that handle every case under the sun. Pick up a newspaper and you’ll see someone being charged in the High Court, appealing in the Federal court, or appearing in the Magistrates’ court. However, have you ever wondered how or who decides which cases go to which court? Is there a ballot system, lucky draw, or a first come first serve? Well, actually, a court hierarchy exists with specific rules on what cases can be brought to which courts. For the purposes of this article, we will be focusing on the civil courts system and not the criminal court system (which will be dealt with in a separate article). For reference, the civil system is basically about private law suits where you sue someone. The criminal system is when someone charged with a crime is tried in court to determine his innocence or guilt. Also, we won’t be including the Syariah or Native Courts in this article. To kick things off… Everything comes with a...hierarchy The court systems are built in a hierarchal system in order to facilitate the hearing of cases and any appeals against them. Beyond having a hierarchy, the courts are also divided into courts of first instance and appellate courts. Courts of first instance Courts of first instance are where matters are heard for the first time. Courts which fall under this category are the Magistrates’ Court, Sessions Court, and High Court. Appellate courts Appellate courts hear matters on appeal from the courts of first instance and only have the power to listen to appeals. This means that they only listen to matters already decided instead of deciding on new points or deciding on findings of fact. There are limited exceptions to this general rule but we will take a look at them later on in this article. The courts which fall under this category are the High Court, Court of Appeal, and Federal Court. Yeah, we know that the diagram doesn’t answer many questions but with that picture in mind, let’s dive into the respective jurisdictions of each court to better explain it. Magistrates’ Court and Sessions Court The Magistrates’ Court’s jurisdiction can be found in the Subordinate Courts’ Act 1948 (“SCA 1948”) and it is divided into First Class Magistrates and Second Class Magistrates. According to section 90 and 92 of the SCA, the First Class and Second Class Magistrates have the powers to listen to claims amounting up to RM100,000 or RM10,000 respectively. As a reminder again, this article only covers civil and not criminal cases. Aside from that, the Magistrates also have the power to deal with what is known as small claims procedure. Avid AskLegal readers would remember the small claims procedure is basically a procedure that allows you to recover debts up to RM5,000 without a lawyer and you can read about it here. The Sessions Court on the other hand, has a jurisdiction to listen to cases where the amount or value of the subject matter in dispute are up to RM1,000,000. However, the Sessions Court is given unlimited jurisdiction for cases involving motor-vehicle accidents, and they cannot decide on cases which involve disputes about land titles. If this sounds confusing, here are some examples: Ali and Abu enter into a contract. Abu breaches the contract and Ali sues him for damages amounting to RM900,000 Ali can sue Abu in the Sessions Court. Ali was crossing the road when a car driven by Abu knocks him down. Ali sues Abu for various claims, amounting to RM2,000,000 Ali can sue Abu in the Sessions Court Ali owns a piece of land that Abu has stayed on for 20 years. Ali tells Abu to move because he is a squatter. Abu claims that Ali’s father gave permission to Abu to stay there in return for clearing the land. Ali cannot sue Abu in the Sessions Court. Now, if you are confused about why the Magistrates Court and Sessions Court are listed in the alternative, the answer is simple. If your claim exceeds the Magistrates’ Court’s jurisdiction, then you have to sue your opponent in the Sessions Court. The same idea applies if your claim exceeds the Session Court’s jurisdiction – you then have to sue in the High Court. The High Court is a little special because… The High Court has unlimited power! No, seriously. The High Court has unlimited civil jurisdiction and is technically considered “higher ranking” than the Magistrates’ Court and Sessions Court, which are both known as inferior courts. This isn’t a jab at their ego because the terms are established by our Federal Constitution. Article 121 reads: “There shall be two High Courts of co-ordinate jurisdiction and status, namely— (a) one in the States of Malaya, which shall be known as the High Court in Malaya...and (b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak...and such inferior courts...” Unlimited civil jurisdiction doesn’t mean that the High Court can do whatever they like. They must, of course, act in accordance with the law and pass out appropriate judgments. What unlimited civil jurisdiction means is that they don’t have a limit as to the value of claims they can decide on. If Ali wants to sue Abu for running him over with his car, setting his RM2,000,000 mansion on fire and refusing to vacate his land, he can sue Abu in the High Court. This means that if your claim exceeds both the Magistrates and Sessions Court jurisdiction, you start your case in the High Court. This is why the High Court is a court of first instance. On the other hand, if you started your case in the Magistrates or Sessions Court, you have the right to appeal to the High Court provided you pass the requisite test for appeal (we will cover this in another article). This makes the High Court an appellate court as well. You may have also noticed that the High Courts are split into “Malaya” and “Sabah and Sarawak”. This is because the jurisdiction is split between Peninsula Malaysia (High Court in Malaya) and East Malaysia (High Court of Sabah and Sarawak) – meaning that you cannot transfer your case from Ipoh to be heard in Kuching, for instance. This brings us to our two last courts which are… The purely appellate courts Pure appellate courts mean that the Court of Appeal and Federal Court do not listen to cases brought to court for the first time. They only listen to appeals from the High Court or the Court of Appeal (for the Federal Court). This means that you can’t sue someone in the Court of Appeal or Federal Court but you can only appeal to the Court of Appeal or Federal Court after starting the court process in any of the courts we mentioned above. For instance, if you’re bringing a fresh lawsuit against Ah Kok for scratching your car, you cannot start in the Court of Appeal or Federal Court. However, if Ah Kok isn’t happy with the Magistrates’ Court decision that he should pay you RM5,000 to fix the scratches, he can make an appeal to either of these courts. We will cover more about the appellate process in a separate article but for now, we hope this article gave you some insight into how court systems work in Malaysia!"
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"What’s the difference between theft and robbery in Malaysia? If someone broke into your house in the middle of the night and stole your TV, you might tell people that “A THIEF entered my house last night” or “A ROBBER entered my house last night” - both sound correct. The most obvious thing both thieves and robbers have in common is that they steal things from others and, for the most part we use the terms as if they mean the same thing. However, if you say “snatch robbers” or “bank thieves”, it sounds kinda weird. So this leads us to the question of whether there’s any difference between a robber and a thief - in the legal sense at least. The words “thief” and “robber” have similar meanings, but legally speaking, the difference between them involves proving a few “ingredients” to the crime, and has to consider some extra factors like the person’s intention, and whether there was “extortion” (which means something pretty specific in law). We’ll get to these elements one by one below, but first, let’s look at the dictionary for the baseline difference between a “thief” and a “robber”. A simple Google search tells us their dictionary definitions: Thief - a person who steals another person's property, especially by stealth and without using force or threat of violence Robber - a person who steals another person’s property by force or threat of force In short, a thief tries to remain unseen and goes quietly while a robber might come at you armed with weapons as a threat. But while the dictionary keeps the difference to just the threat of force, the law has to look at a few more things. [READ MORE - Does ""burglar"" mean something else as well?] You need to prove they had bad intentions Imagine picking a lost wallet off the floor, intending to look for the owner. At the worst timing possible, the owner comes running towards you from afar, screaming “GIVE MY WALLET BACK YOU THIEF”. While you can easily clear up the misunderstanding with the owner in this scenario, the law can’t afford to make those kinds of mistakes - because well, prison isn’t a fun place to be in, so they need to be REALLY sure that the person they’re imprisoning is actually guilty. This is why the law has to prove that a person had the intention to commit a crime before they can be proven guilty. [READ MORE - Here’s what has to happen before someone is pronounced “guilty” in Malaysia] To this effect, the definition for “theft” in our Penal Code is as follows in Section 378. The first thing you might notice is that unlike the dictionary definition, the legal definition doesn’t mention anything about thieves trying to be stealthy, or not using violence: “Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.” - emphasis added. According to the definitions in the Penal Code, if someone does something “dishonestly”, they’re doing it with the intention of causing “wrongful gain” or “wrongful loss” to a person. Basically, it means doing something illegal that takes property away from its rightful owner. The element of consent is pretty straightforward - if you didn’t let me take your umbrella, but I took it, then I stole your umbrella. But there’s a pretty interesting illustration in the Penal Code about when you have a friend’s implied consent to use their things: if you took a book from a friend’s bookshelf without their permission, you won’t have committed theft if you have an understanding that “sure, borrow whatever you like, but be sure to return it”. Now that we’ve gone through a way-too-long explanation of theft, you should find it easier to understand what robbery is because... Robbery is just a type of theft It’s true! It’s what Section 390(1) of our Penal Code says: “In all robbery there is either theft or extortion.” - emphasis added. We already know what theft is, so what’s the legal definition of “extortion”? We’ve got to look at Section 383 of the Penal Code for that: “Whoever intentionally puts any person in fear of any injury to that person or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extortion”.” In simple English, that translates to threatening to injure a person to make someone give you something valuable. So, what makes theft or extortion turn into a robbery? Violence. Penal Code - Section 390(2) “Theft is “robbery”, if, in order to commit theft…... the offender, for that end, voluntarily causes or attempts to cause to any person death, or hurt, or wrongful restraint, or fear of instant death, or of instant hurt, or of instant wrongful restraint.” - emphasis added. As you can see, the defining trait of robbery is causing death or injury, or threatening someone with death or injury. But hmm, extortion already involves threatening someone with injury, so what makes it different from robbery? Penal Code - Section 390(3) in part “Extortion is “robbery”, if the offender, at the time of committing the extortion, is in the presence of the person put in fear and commits the extortion by putting that person in fear…” In short, extortion is a separate but pretty serious crime as well, but you would call an extortion that’s happening in person a “robbery” instead. The punishment is also higher for robbery To summarize the above: Theft = Dishonesty + Taking something that you’re not allowed to Extortion = Threat + Making someone give you something Robbery = Theft + Violence OR Extortion + Threatening them in person In a sense, thieves get a lighter punishment because while they’re trying to take away what’s not theirs, they didn’t decide to threaten people and put their lives in danger. Theft is punishable under Section 379 of the Penal Code with up to 7 years of prison and/or a fine. Repeat offences get punished with another round of imprisonment, as well a fine or whipping. Extortion gets it a little more serious under Section 384 at up to 10 years, or a fine, or whipping, or any two of those punishments. And robbery gets a punishment of up to 14 years in prison, which can include a fine or whipping as well. Now that you know what laws apply to thieves and robbers, you might have also wondered what’s the difference between “murder” and “manslaughter” - which we’ve covered in another article here. [READ MORE - What’s the difference between murder and manslaughter in Malaysia?]"
"5 sebab korang harus mengelakkan jual beli kenderaan dengan skim Sambung Bayar [Artikel asal dalam Bahasa Inggeris. Click here for English version] Membeli kereta baru memang mahal. Selain daripada harga kereta itu sendiri, terdapat banyak lagi kos-kos lain yang harus dipertimbangkan. Bukan setakat downpayment je tinggi, malah korang juga nak kena fikir kos-kos penyelenggaraan, insurans, road tax, dan juga kos minyak! Pengangkutan awam memang sedia ada sebagai pilihan, tapi bukannya praktikal untuk semua orang. Dah kira pon semua-semua kos tadi tu, mestilah korang mencari cara nak memiliki kereta tanpa membebankan poket… Yang sering dipilihi tu membeli kereta terpakai lah (second hand). Tapi kena ingat juga, ada segelintir masyarakat tak layak untuk mendapatkan pinjaman bank. Sebab tu ada yang memilih jalan yang lebih mudah dan menarik iaitu sambung bayar. Skim sambung bayar biasanya cam ni... Sambung bayar kenderaan ni kebiasaannya kerana penjual kereta masih lagi membayar pinjaman kepada bank, tetapi mahu menjual kenderaan kepada orang lain. Mereka tidak mahu melalui proses jual beli yang makan masa dan dorang pun mungkin memerlukan wang tunai dengan segera. Pembeli dalam sambung bayur juga untung sebab tak perlu membayar harga penuh kenderaaan - hanya perlu deposit yang rendah dan meneruskan bayaran bulanan untuk penjual kereta. (sebab tu la dipanggil “sambung bayar”) So misalnya, penjual “menjual”’ kereta kepada pembeli, dan pembeli menyambung bayar pinjaman pemilik tersebut kepada pihak bank. Tapi korang kena ingat, walaupun penjual tu serahkan kenderaan kepada pembeli, kenderaan tu tetap berdaftar atas name penjual. Penjual biasanya akan meminta sejumlah deposit daripada pembeli, dan mereka akan menandatangani kontrak, ataupun sekadar bersalam tanda setuju. Tapi pihak yang sambung bayar tidak dilindungi oleh undang-undang Mana-mana kontrak yang ditandatangani dalam urusan sambung bayar tidak dapat dikuatkuasakan kerana pihak bank kebiasaanya meletakkan syarat dalam kontrak pinjaman yang diberikan – bahawa pembeli tidak boleh menjual kereta tersebut tanpa persetujuan mereka. Malah persetujuan salam (handshake) juga tidak dilindungi oleh undang-undang, so jadi masalah kalau salah satu pihak mungkir janji. Inilah sebabnya kaedah sambung bayar ni biasanya digunakan di antara kawan rapat dan keluarga je. Walau bagaimanapun, ia masih tidak digalakkan, kerana terdapat 5 risiko yang harus korang hadapi. 1. Sambung bayar tu haram Persetujuan sambung bayar dinyatakan sebagai haram di bawah Seksyen 38 - Akta Sewa Beli 1967 (tiada penterjemahan rasmi); “Setiap orang yang, melalui pelupusan atau penjualan mana-mana barang yang dirangkumi dalam sesuatu persetujuan sewa beli, atau melalui penyingkaran barangan tersebut, atau melaliu kaedah-kaedah yang lain, menipu atau cuba menipu pemilik melakukan suatu kesalahan” – diterjemahkan oleh ASKLEGAL Apabila korang membeli kereta secara sewa beli (hire purchase), pihak bank adalah pemilik sah kereta sehingga korang menjelaskan bayaran pinjaman sepenuhnya. Jadi korang sebenarnya tidak berhak pun untuk menjual kereta tersebut melainkan korang mendapta keizinan daripada bank. Kesalahan ni membawa denda maksimum RM30,000 atau penjara sehingga 3 tahun atau kedua-duanya sekali. Undang-undang inilah yang menyebabkan kontrak sambung bayar tidak berkesan. Kontrak ni dipanggil void ab initio (tidak sah dari permulaan). Mengikut Seksyen 24 dalam Akta Kontrak 1950, kontrak yang melibatkan sesuatu yang haram dari segi undang-undang tidak boleh dikuatkuasakan. 2. Penjual bertanggungjawab jika pembeli kereta berhenti membayar pinjaman Kenderaan dalam persetujuan sambung bayar masih dianggap sebagai hak milik penjual. Jadi, jika pembeli gagal membayar ansuran, penjual tu yang kena tanggung segalanya. Lebih buruk lagi, ia mungkin menjejaskan credit score korang yang akan mempengaruhi peluang mendapat pinjaman satu hari nanti. Selain itu, jika terdapat saman yang dikeluarkan kepada pembeli apabila menggunakan kenderaan tersebut, penjual juga yang kena. Bukan setakat itu je, malah lebih tragis lagi kalau pembeli tak bayar, tapi tak nak pulangkan kereta juga… 3. Penjual tak boleh buat laporan polis juga Betul tu. Sebab penjual tu dah serahkan kenderaan kepada pembeli secara sukarela. Tak boleh lagi membuat laporan kenderaan dicuri sebab definisi kesalahan mencuri di dalam Kanun Keseksaan (tiada penterjemahan rasmi) Seksyen 378 kita adalah: “Barang siapa, yang bermaksud hendak mengambil dengan curangnya apa-apa harta yang boleh dialih daripada milik mana-mana orang dengan tiada kerelaan orang itu, menggerakkan harta itu dengan tujuan hendak mengambilnya,adalah dikata melakukan kesalahan mencuri.” Jadi pembeli di bawah persetujuan sambung bayar tidak mengambil kenderaan secara tidak jujur. Dan penjual sendiri secara relanya telah memberi kenderaan tu kepada pembeli, jadi dia tidak sama sekali boleh melaporkan “kehilangan” kereta itu. Tapi apa yang korang mungkin boleh buat ialah melaporkan kes tersebut sebagai penipuan, seperti yang dinyatakan oleh Menteri Hal Ehwal Dalam Negeri sebelum ini. Korang boleh dilindungi dibawah Kanun Keseksaan Seksyen 420 - Penipuan dan penganiayaan yang membabitkan penyerahan harta. Sebagai contoh, seorang individu ingin mengguna kaedah sambung bayar untuk membeli motor korang dengan deposit RM1,000, tetapi kemudiannya dia tidak membayar langsung pinjaman korang tu. Untuk pembeli pula, ada beberapa perkara yang harus dipertimbangkan iaitu… 4. Pembeli mungkin takkan dapat hak milik kereta dengan sah Ini mungkin dah jelas kepada korang, tapi pembeli sambung bayar tidak dilindungi oleh insurans jika hak milik kenderaan itu bukan atas nama mereka. Satu solusi adalah pembeli boleh meletakkan nama mereka sebagai pemandu kedua di dalam polisi insurans. Walau bagaimanapun, terdapat satu lagi perkara yang harus dipertimbangkan oleh pembeli – apa jadi jika penjual kenderaan meninggal dunia sebelum hak milik dipindahkan. Kenderaan tersebut akan diwarisi oleh keluarga pemilik. Kereta tersebut adalah hak milik bank selagi pinjaman belum habis dibayar. Selepas pinjaman habis dibayar, hak milik kereta akan jatuh kepada penjual kerana ianya didaftarkan atas nama mereka. Apabila mereka meninggal dunia dan tidak dapat mengalihkan hak milik kepada pembeli, pihak keluarga mereka akan mendapat hak milik secara automatik. Jika ahli keluarganya datang menuntut kenderaan yang disambung bayar, pembeli tidak mempunyai pilihan lain selain menyerah balik kenderaan. 5. Banyak kes sambung bayar melibatkan kenderaan klon Terdapat pembeli yang kena masalah di bawah skim sambung bayar selepas mengetahui bahawa kenderaan yang dibeli tu kenderaan klon. Seorang doktor dari Alor Setar menjadi mangsa penipuan pada tahun 2015. Kereta klon ini mungkin diubahsuai dengan chasis pendaftaran palsu (mungkin juga tidak didaftarkan) dan plat nombor palsu, serta road tax palsu. Mangsa biasanya hanya mengetahui bahawa kereta mereka diklonkan setelah ditahan oleh JPJ atau apabila memperbaharui cukai jalan sendiri (dan bukan melalui “ejen” mereka). Kenderaan yang tidak didaftarkan boleh disita oleh JPJ sebelum dilelong oleh mahkamah. Sebagai pemilik kereta, korang juga boleh didakwa di bawah Seksyen 7 Akta Pengangkutan Jalan 1987 kerana memiliki kereta yang tidak didaftarkan, dan boleh didenda di antara RM2,000 dan RM10,000. Kereta klon telahpun wujud sejak tahun 1980-an menurut seorang pengedar kereta Carsome. Korang boleh baca lebih mengenai kereta klon di artikel CILISOS ni. Beli lah kereta dari pengedar yang sah Simpulan undang-undang sambung bayar ni satu je: kalau kita mengabaikan tanggungjawab di bawah undang-undang, kita takkan dapat hak dan perlindungan yang diberikan oleh undang-undang juga. Tidak kira berapa lumayan sambung bayar, dalam jangka masa panjang, masalah dan kos yang bakal dihadapi adalah risiko yang tidak sewajar. Susulan kes doktor Alor Setar yang tertipu itu, pengarah JPJ Kedah telah menyarankan orang ramai untuk membawa kereta yang ingin dibelikan ke Puspakom atau JPJ untuk permeriksaan. Menurutnya lagi, sangatlah sukar untuk orang awam mengenalpasti kereta itu tulen atau tak dengan hanya melihat luarannya."
"Will Tealive need to close their shops in Malaysia? The Malaysian courts say no. This article was co-written by Dinesh Sadhwani, a practicing advocate and solicitor of the High Court of Malaya; and UiHua, Asklegal editor. You bubble tea lovers out there may remember a time when Chatime was the hottest place to be, with lines forming faster than outlets could open. And then, a really weird thing happened - Chatime disappeared overnight, and a new brand called Tealive took their place. Well, actually it wasn’t really weird because the dispute between the Taiwan-based Chatime franchisor (La Kaffa International Co Ltd) and the Malaysian franchisee (Loob Holding Sdn Bhd) was widely covered by the press, with La Kaffa accusing Loob of breaching their franchise agreement by allegedly withholding payments and using unapproved raw materials. Long story short, La Kaffa terminated the franchise agreement and Loob rebranded all their stores into Tealive - and the Malaysian thirst for 30% sweet / 10% ice bubble milk tea was quenched. But in the background, a legal drama was bubbling up and, in the most recent development, Tealive was asked by the Malaysian Court of Appeal to cease operations – basically to close shop. Tealive The story is pretty twisty, so let’s start with how the legal drama began in the first place... There is no “fren” in franchise If this article was a bubble tea, the detail level will only be 60% as we’re only focusing on the major facts and arguments that led to the current scenario. If you’d like the full details, you can read the full court judgement here. In a nutshell, La Kaffa appointed Loob as a Chatime franchisee in 2011 and, as per normal practice, entered a franchise agreement for this purpose. We will discuss franchise law in more detail in another article soon but, in a gist, if you are appointed as a franchisee, it would usually mean that you have been granted a right by the brand owner / franchisor to operate a business using the brand and concepts owned and developed by the franchisor. As an example, KFC, McDonald’s and The Coffee Bean are some of the globally famous brands which are franchised in Malaysia. What makes a franchise different from setting up your own business is that, while you have the support of the franchisor in aspects of branding and product expertise, you’re also bound by the rules of the franchise agreement and law – in this case the Franchise Act 1998. In general, it means that you cannot freely do things like misuse the franchisor’s intellectual property, open a side business with an identical product, or replace ingredients without prior approval from the franchisor. So if you’ve ever wondered what the difference was between Chatime and Tealive – this is essentially the reason La Kaffa took Loob to court. There are two points of focus here: The franchise agreement between La Kaffa and Loob – called the Regional Exclusive Representation Agreement (RERA) Section 27 of the Franchise Act 1998 Page 15 of court judgment reproduces a portion of the franchise agreement, which states that Loob is not permitted to engage in any commercial activities that are identical or similar to those done in the franchised stores. The franchise agreement further states that this prohibition applies even after the franchise agreement is terminated. In the event that this isn’t followed, Loob will have to pay certain penalties to La Kaffa, including US$10,000 per breach of agreement as well as a certain percentage of their gross monthly sales. You can see the full list of payments on page 36 of the judgment, but, suffice to say, it could amount to a lot of money. On the other hand, section 27 of the Franchise Act states that a franchisee is required to guarantee to a franchisor that they will not engage in a similar business during the franchise term and for two years after the expiration or earlier termination of the franchise agreement. So if you put both these points together, the next question will be why did Tealive spring up a month after the Chatime contract was terminated, and why have they been in operation all these years? This is where it gets interesting. The High Court didn’t ask Loob to stop selling bubble tea... Note that we mentioned the Court of Appeal in the beginning of the article. That’s because La Kaffa had to appeal against an earlier decision made by the Malaysian High Court. To quickly break it down, La Kaffa asked the High Court for two things: A prohibitory order (court orders a person not to do something) – To stop Loob from operating Tealive or any other business similar to Chatime. A mandatory order (court orders a person to do something) – Loob has to return all confidential information and documents related to Chatime back to La Kaffa. For the sake of simplicity, we’re referring to La Kaffa as “Chatime” and Loob as “Tealive” for the rest of the article. You’re welcome. The High Court granted the mandatory order, which means Chatime were entitled to get their sensitive stuff back, but didn’t grant the prohibitory order. One of the reasons was that the High Court agreed with Tealive’s argument that the prohibitory order would negatively affect the livelihood of over 800 employees as well as various third parties such as suppliers, bankers and landlords. Also, the judge was of the opinion that the damages that Tealive would need to pay Chatime would make up for this. By the way, if you’re reading the judgement yourself, you may find that when referring to the prohibitory and mandatory orders Chatime asked for, you’ll sometimes find the word “injunction” used instead of “order”. Very simply, an injunction is a type of order and, for purposes of easy understanding, you can take them to mean the same thing. Otherwise, read more on injunctions here. ...But the Court of Appeal did! So, not happy with the High Court’s decision, Chatime appealed and the case went to the Court of Appeal. Here, the Court of Appeal took a different view from the High Court and agreed with Chatime – and granted the prohibitory order. Their key reasons were: The contract and the law says no The Court of Appeal said that the franchise agreement and the Franchise Act both state that the franchisee (Tealive) cannot carry on a competing business after terminating the franchise agreement. The creation of Tealive was, on the face of it, in contravention of the prohibition (doing something despite not being allowed to do it) under the franchise agreement and the Franchise Act. Money doesn’t cure everything The Court of Appeal acknowledged that the franchise agreement provided for compensation in the event of a breach of the competition restriction (i.e. US$10,000 for each breach + others mentioned earlier) – though it’s noteworthy that this is merely what is specified in the franchise agreement and has not been paid by Loob yet as the dispute is ongoing. Having said this, the Court of Appeal said that, although compensation is provided, it does not mean that the court should allow someone to continue doing something that they aren’t legally allowed to do in the first place. They didn’t agree with Tealive’s “negative impact” claim The COA basically said that, on the face of it, Loob’s conduct is in breach of both the franchise agreement and the Franchise Act, so the potential negative impact on stakeholders (employees, bankers, landlords, etc) is not a justifiable reason for not granting the prohibitory order (which is the opposite of what the High Court thought). Does this mean Tealive will have to close down? In short, the legal implication of the Court of Appeal’s decision is that Tealive will have to immediately cease to operate their outlets and any other businesses that may be in competition with Chatime – if Tealive does not comply with the court’s order, they could be held in contempt of court. Contempt of court basically means that someone is interfering with the administration of justice, and can be fined or jailed. However, it has been reported that Tealive intends to apply for a stay of the Court of Appeal’s decision and also for leave to appeal to the Federal Court against the Court of Appeal’s decision to grant the prohibitory order. A leave to appeal is pretty straightforward – it basically means that they’re asking for permission to appeal against the Court of Appeal’s decision. If leave to appeal is granted, the appeal will be heard by the Federal Court. Some of you may be wondering – since Tealive intends to appeal, will the prohibitory order still apply? Can they still remain open? This is where the significance of applying for a stay comes in. A stay application is usually made by a party who has lost a case to request for the order / decision to not have effect yet, usually until the losing party has exhausted its appeal rights. In this case, Tealive is seeking permission to “hit the pause button” on the Court of Appeal’s order for them to stop operations. At the time of writing, there is no update on whether either have been granted. the Court of Appeal rejected the stay application, meaning that Tealive cannot operate while waiting for the Federal Court (if they followed through with this), for the reasons already explained in the update section of this article. But there’s another part to this story – taking place in Singapore! One point to bear in mind is that the Malaysian court proceedings are just one part of the legal battle between Chatime and Tealive. As mentioned in the beginning of this article, the ORIGINAL cause of the entire drama is that Chatime claimed Tealive (Loob) allegedly committed various breaches of the franchise agreement; which led to that agreement’s termination. This original dispute has also not been settled, and won’t be settled in Malaysia. It’ll be settled in Singapore. As part of the franchise agreement, both parties agreed to settle any disputes through arbitration in Singapore. Arbitration is basically when two parties agree to let a neutral third party resolve the dispute for them. In a way, it’s like suing someone in regular court, except in a private setting (in this case being the Singapore International Arbitration Centre) where the proceedings and judgments can be kept private. Look out for a full article on arbitration in the future. Some of you may be wondering – why couldn’t Chatime apply to the Singapore arbitral panel (instead of the Malaysian courts) for the prohibitory and mandatory orders? The answer is that, under Malaysian law, the power to grant such orders are with the Malaysian courts – an arbitral panel does not have such power under the law. [UPDATE] The Court confirms that Tealive needs to close their shops If you’ve already read this article, this update will make complete sense. If this is your first time here, do read the rest of the article for a proper background and explanation of terms used. As a TL;DR: The Court of Appeal agreed with Chatime (La Kaffa) and ordered Tealive (Loob Holding) to immediately cease operations – basically to close shop. Tealive will have to appeal to the Federal Court and convince the court to allow them to operate – basically to disagree with the Court of Appeal In the meantime, Tealive asked the Court of Appeal for permission (stay) to continue operating while they made their appeal to the Federal Court. The Court of Appeal rejected their request You can view the full court judgment here, but for the sake of easy understanding, we’ve summarized the reason for the rejection into two main points: 1. Tealive didn’t say that they made an appeal to the Federal Court Despite Tealive stating to the media that they would make an appeal to the Federal Court, this appeal was not mentioned in their affidavit (basically the formal request) to the Court of Appeal. It’s not certain why this wasn’t mentioned, as there’s no reason given in the judgment. However, because they are asking for permission to continue operating while they made their appeal to the Federal Court; not mentioning it in the affidavit can be taken to mean that no appeal was made. In other words, the judge rejected their request because they didn’t have a reason to make a request in the first place. 2. They kinda brought it upon themselves The judge basically acknowledged that what Tealive was doing was wrong; against the Franchise Act 1998 and the franchise agreement signed between Tealive and Chatime – elaborated on more in the article below – and therefore will have to bear the burden of the law despite Tealive’s argument that closure would affect the livelihood of their employees and related third parties. This can be seen in the example below: Or perhaps in a more direct statement, the judge flatly said: Oh, and the Court of Appeal also ordered Tealive to pay RM15,000 in costs. But to reiterate the point, this is not the end of the road for Tealive, as they can still appeal to the Federal Court [UPDATE 2] The Federal court allows Tealive to stay open for the time being Federal Court has granted stay to Tealive as shown in the press release sent to us. We’ll be updating this further once we get the court judgment."
"How does a Malaysian judge decide what punishment to give a criminal? We always read about Malaysians getting punished for crimes through various ways. For example, you can get fines for traffic offences, jail time for robbery, whipping for certain hardcore crimes, or even the death sentence. In some cases, you can get even get a combo like a fine AND jail time or jail time PLUS whipping. With this, it seems like there’s a really long list of ways to punish criminals in Malaysia. However, there are technically only 6 core types of punishment in Malaysia and they are guided by three main principles. These three principles are the principles of retribution (ye olde standard eye for an eye), rehabilitation (when you hope that someone goes back to the good path), and deterrence (when you hope that the punishment would stop the criminal from re-offending). Now, while the principles can affect the sentences to a certain degree, the overarching theme is… Judges have to punish according to the law As a matter of fact, “sentence according to law” is a trite phrase that is often repeated throughout the Criminal Procedure Code and it was re-emphasised in the case of PP v Jafa bin Daud, where the courts ruled that a sentence that is according to law is a sentence that is passed in accordance with established penal provisions and accepted judicial opinions. To put it into context, let’s look at the punishment for our favourite crime – theft. Under section 379 of the Penal Code, the punishment for theft is: “Whoever commits theft shall be punished with imprisonment for a term which may extend to seven years or with fine or with both...” This means that if a judge finds Abu guilty of theft and this is Abu’s first offence, his time in jail cannot exceed seven years. In addition to (or instead of) jail time, the judge also has the power to impose a fine on Abu. However, if the judge were to punish Abu with 10 years in jail, the sentence will not be legal because it would be going against section 379 which caps the maximum number of years at 7. Another example is the punishment for murder – which comes with a mandatory death sentence. If Ah Kok was found guilty of murder, the courts cannot let him off with 30 years in jail or a fine. It must and can only be the death sentence for Ah Kok. Anything less would be an illegal sentence. With this in mind, you may be surprised to know that punishments in Malaysia essentially consist of SIX core types. The 6 kinds of punishments in Malaysia When we say that Malaysia has 6 different kinds of punishment, we don’t mean that it’s like a build-your-own-burger situation where you get to customise your punishment. “Yes, I would like a dash of jail, a sprinkling of parole, hold the whip please.” The punishments are determined by the relevant laws and are meted out according to various mitigating and aggravating factors. A mitigating factor is something that would convince the judge to lighten your sentence like showing remorse or being a first time offender. An aggravating factor is something that would convince the judge to give you a heavier sentence like whether violence was used or if the crime is rampant. Let’s start with the most serious punishment of the lot… Death sentence Malaysia still practices the death sentence and it is reserved for crimes such as murder, drug trafficking (which is in the works to be abolished), rape causing murder, certain acts of terrorism, or treason. An example of the death sentence being utilised for a crime other than murder or drug trafficking was in the case of the Pudu prison siege where 6 inmates took a doctor and his assistant hostage in the prison clinic. The inmates were eventually brought down by Malaysia’s UTK and the those involved were convicted and hung to death. Whipping The whipping here is not like the kind we used to receive as kids where red marks linger for days but the whipping that prisoners go through are capable of tearing their skin and cutting into the muscle. Amnesty International published a report on it and their description was: ""Across Malaysia, government officials regularly tear into the flesh of prisoners with rattan canes travelling up to 160km/h. The cane shreds the victim's naked skin, turns the fatty tissue into pulp, and leaves permanent scars that extend all the way to muscle fibres,"" – A blow to humanity: Torture by judicial caning in Malaysia, Amnesty International We found a video, apparently of a whipping in Malaysia, and you can watch it here but note that the trigger warnings. For this reason, courts can only sentence a maximum of 24 strokes for any offence. Aside from that, there are certain groups of people that cannot be whipped: Women Prisoners sentenced to death Men above the age of 50 except those who have been convicted of certain offences There are a bunch of sections in the Penal Code that contain offences that allow the courts to impose whipping sentences on men above the age of 50, and they are basically sexual offences like rape or inciting a child to commit an act of gross indecency. Whipping also cannot be carried out in installments and you must be certified to be fit by a medical officer before the whipping. If you fail to complete the whipping because you are considered unfit for it, section 291 of the CPC kicks in: “In any case...a sentence of whipping is wholly or partially prevented from being executed the offender shall be kept in custody till the Court which passed the sentence can revise it, and the said Court may in its discretion either remit the sentence or sentence the offender instead of whipping...to imprisonment for a term which may extend to twenty-four months” This basically means that if you are sentenced to 10 whips, all 10 whips must be given at the same time. It cannot be given over an extended period of time and, if you are unable to carry the entirety of the whipping or a part of it, the courts are allowed to extend your prison sentence as a “replacement”. Imprisonment There are generally two types of imprisonment – for life or for a fixed term. Generally we use the word “imprisoned for life” to mean one thing but, in actuality, imprisonment for life and life imprisonment are two different things in Malaysia. Imprisonment for life means that it is until death while life imprisonment extends up to 20 years in prison (this means that you can spend up to 20 years in jail). Imprisonment for a fixed term, on the other hand, means as stipulated by the relevant law. In our theft example above, a thief can be punished with up to 7 years in prison. This means that the maximum sentence that the judge can impose is 7 years buttttt...there is one exception found in section 75 of the Penal Code which basically says that repeat offenders of certain crimes can be given double the punishment. Police supervision Aside from getting double jail time, repeat offenders can also be sentenced to police supervision after the completion of their jail sentence. This is not to be confused with parole. Parole happens when the prisoners are allowed to serve out the remainder of their jail terms outside prison, while reporting to their parole officers. Police supervision, on the other hand, takes place after you complete your sentence. Check out what section 295(2) CPC says: “When any person subject to the supervision of the police is, while still subject to such supervision, sentenced to a term of imprisonment within Malaysia any term spent in prison shall be excluded from the period of supervision.” An exception exists for first time offenders to also be punished with police supervision – when a first time offender commits certain sexual offences such as rape and inciting a child to commit gross acts of indecency. Fines and compensation Fines are pretty straightforward. Judges can impose fines when the law allows for it and give you a reasonable time to pay it. If you fail to pay the fine within the stipulated time, the courts are allowed to throw you in jail instead. This is allowed in section 283 of the CPC where different values of the unpaid fine amounts to different jail sentences. For example, if the fine is RM500 and below, your jail sentence in default of paying that fine cannot exceed 1 month. Compensation to the victim happens when you have been found guilty of a crime but the court is of the opinion that given certain factors such as your age and health or triviality of the offence, it is not practical to punish you beyond a nominal punishment (it simplistically means small punishment). The courts can also make an order for you to pay the prosecution’s costs in certain cases. Good behaviour bonds Malaysians might be familiar with this phrase from when Rafizi Ramli was released on a RM10,000 good behaviour bond after he was sentenced to 18 months in prison for violating the Official Secrets Act. What it means is that if you have been found guilty of an offence, the courts can choose to allow you to pay a certain amount of money into court and in return, the court will impose certain conditions in the bond that you will have to adhere to for a certain number of years. The conditions imposed will be geared towards ensuring that you will be on your best behaviour and then you will be allowed to evade jail time. If you breach the conditions of the bond, the courts are entitled to forfeit the money you paid into court. It is to be noted that this order can only be made by the court for less serious offences. For example, when a “Datin” was released on a good behaviour bond after abusing her maid, there were parties that argued that this order was illegal as the offence was serious. Consequently, her sentence was revised to eight years in prison. At the end of the day, all these punishments lead us to one corny conclusion… Crime does not pay Well technically, it DOES pays but not in the way you think since you are the one paying for it and you would be paying for it – in a pretty unpleasant manner. If you have beef with someone, try to talk it out over a cup of Milo dinosaur or call the police to intervene to avoid the matter from escalating. It’s better to be out in your good behavior than out in your good behavior bond."
"""Suspect from Ipoh held under remand"" - but what does 'remand' actually mean? We recently got a question from one of our readers on whether the police are allowed to detain you if you haven’t been formally charged with a crime yet. So here’s an example of how this might play out: You’re out clubbing with friends one night, just having some fun and knocking back some drinks – nothing illegal at all. The lights suddenly come on and, it’s a police raid! As the police make their rounds checking IDs, an officer notices a couple of pills near your feet and places you under arrest for further investigation. You’re placed in the lockup but you keep calm because you’ve read enough Asklegal to know that you’ll be out within 24 hours. Unfortunately, at the 20th hour, the officer says they are bringing you to court to detain you for another week. So this is a pretty simplified example, but it leads nicely into what’s legally known as remand. Before we get too in-depth though, let’s cover some of the basics first. When the popo asks you questions, it may not be an arrest The first thing to note is that not every interaction with the police will amount to an arrest. Section 15 of the Criminal Procedure Code (“CPC”) provides the situations where an arrest can happen: “In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there is a submission to the custody by word or action.” Basically, an arrest can only happen in 3 scenarios: When the PDRM touches you When the PDRM confines you When you submit to the PDRM’s custody If they are merely asking you questions, it does not mean that you have been arrested. In addition to that, you have a right to be informed of the true reasons of your arrest as soon as possible under section 28A CPC. There are also other rights that you are entitled to if you have been arrested. [READ MORE: What are your rights if you’ve been arrested by the PDRM?] [READ MORE: How do you know if you’re being arrested by the PDRM?] Once you have been arrested, you can only be detained up to 24 hours for the purposes of allowing the PDRM to complete their investigation. If at the end of that 24 hours, the police feel like you are not a suspect, they must release you. However, there are situations where you can be detained for more than 24 hours and this is where the court grants a remand order. A remand order can go up to 14 days A remand order can be granted if the police feel like their investigation cannot be completed within 24 hours. In such a situation, the police must bring you before the Magistrate before the 24 hours is up and petition to the court for a remand order. So in essence, a remand order can be granted by the Magistrate for the purposes of allowing the PDRM to continue with their investigation. Aside from that, remand orders can only be made to detain suspects to a case and not a witness as provided in the case of PDRM v Audrey Keong. The section that allows remand to be granted is section 117(1) which reads: “Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 28 and there are grounds for believing that the accusation or information is well founded the police officer making the investigation shall immediately transmit to a Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the accused before the Magistrate.” The period for remand depends on the the discretion of the Magistrate but there are basic guidelines to follow. If the offence is one that is punishable with less than 14 years imprisonment, then the Magistrate can grant remand twice; the first remand order cannot exceed 4 days of detention while the second cannot exceed 3 days. This means that the total remand period for such an offence is 7 days. If the offence is one that is punishable with more than 14 years imprisonment, then the Magistrate can grant remand twice; the first remand order cannot exceed 7 days of detention and the second cannot exceed 7 days as well. This means that the total remand period for such an offence is 14 days. If you are wondering why there needs to be a first and second remand order, it’s because the first remand order happens when the police brings you before the Magistrate when the investigation cannot be completed within the first 24 hours. The second remand order can be made at the end of the first remand order when the police feels like they need more time to investigate you. A key point to note about the remand order is that before any remand order is made, the investigating officer must hand a copy of his investigation diary over to the Magistrate. This is provided for in section 119 and a failure to produce the investigation diary can make a remand order unlawful as mentioned in the case of Re The Detention of Leonard Teoh Hooi Leong. The investigation diary is basically notes by the investigative officer as to things like when the investigation started, the places visited by him, and a statement of circumstances determined by him through his investigation. This investigation diary and the production of it will help the courts determine whether or not it is necessary to grant a remand order or not. But if you’re thinking that it’s fine because you can just get your family members or friends to post bail, you might be in for some bad news due to one little phrase: “Bail is subject to remand” As a quick recap, bail is “permission” given by the courts to allow you to go home while waiting for the trial to start. When a bail order is made, you will have to pay a certain amount of money to the courts and if you fail to show up, the money can be forfeited. Whether or not bail is granted depends on the type of offence you are charged with and the discretion of the courts. [READ MORE: What is bail? Baby don’t jail me, don’t jail me. No more] However, even if the type of offence you are arrested for is a bailable offence (which means you get bail as of right), this bail is subject to remand. It basically means that while you will get bail if you are charged with committing the offence, the right to bail only kicks in after the remand period. The case of Duis Akim succinctly explains that a suspect cannot be bailed out of jail during the remand period. In other words, even if you’ve successfully posted bail, you’ll still have to wait until the remand period ends before you can go home Before you rage about how unfair this is, remember that a remand period is meant to facilitate police investigation. If you were released on bail during the time the police is supposed to use to investigate you, then it might make investigations a lot harder to complete. Not to mention the fact that if you did commit the crime, you might just take that judge-given opportunity to destroy anything that can be used to implicate you in the crime… which would then defeat the purpose of remand orders. So there you have it folks. If you ever feel like you have been wrongfully detained, you can always choose to sue the government in a civil suit but do note that even if the police used unlawful methods to arrest you or if your detainment was unlawful, this does not affect the criminal trial that you may have to go through. The only recourse you have is to sue the government (or make voodoo dolls). (Or, more realistically, hire a lawyer)"
"To get a divorce in Malaysia, you need to prove at least 1 of 4 things… This article is about civil marriages in Malaysia and does not include Islamic marriages. Click here for our article on divorce in Islamic marriages. So, you think you’ve found the “One”. You’ve been living together for a while, you get along great, and so you decide to tie the knot - imagining the two of you growing old together in a house with white picket fences, three children, and a dog named Boo. Unfortunately, you both quickly find out that married life is a lot different from dating life, and the marriage ends in divorce. [READ MORE - 5 Malaysian marriage laws you (probably) didn't know about] Divorces have been on the rise in recent times, with statistics showing that one couple gets divorced every 10 minutes. But actually…how do you get a divorce in Malaysia? You make a petition to the family court A divorce is usually not as straightforward as going to court and tearing up that marriage certificate. There are also many factors involved - especially when the couple has children. Civil (non-Islamic) marriages in Malaysia are governed by the Law Reform (Marriage and Divorce) Act 1976 (LRMD). Divorces are “petitioned” to a family court by one partner, or both partners in a marriage. There are 3 requirements that must be fulfilled before a divorce can be filed: Section 53(1) of the LRMD states that the only acceptable reason for divorce is when a marriage has “irretrievably broken down”. Section 50 further states that divorce cannot be requested within 2 years of marriage (though if there is exceptional hardship, the court might allow it). Section 55 provides that a couple must have counselling and assistance to reconcile their marriage, before a divorce proceeding can be considered by the court. From that, you can probably get the idea that the law doesn’t make it that easy to get a divorce. Assuming a divorce proceeding has met these requirements, the court will hear the facts that led to the breakdown of marriage, and consider if it is reasonable to make a decree of divorce (as required by Section 53(2) of the LRMD). Both husband and wife can also apply in a joint petition to have their marriage dissolved, but they will not be required to prove that their marriage has “irretrievably broken down”. The 2 year restriction will still apply though, and they still can get counselling if they wish. The court can make a decree of divorce once it has made sure that: Both parties consented to the divorce of their free will Proper provisions are made for the wife, and for the support, care, and custody of children (if any) The court has attached conditions to the divorce as they see fit There’s still the question of what “irretrievably broken down” actually means - it sounds subjective right? Well, the law accepts 4 grounds for this, and you must prove at least 1 of them if you’re requesting a divorce. [READ MORE - If you divorce in Malaysia, do you automatically get half the property?] The 4 grounds for divorce To get a decree of divorce, you must prove one of the following facts which are recognized as proof of breakdown under Section 54 of the LRMD: 1. Your partner committed adultery The first ground accepted by the law is that your partner had committed adultery, AND you find it unbearable to continue living with them. The generally accepted definition of adultery in Malaysian case law is the voluntary sexual intercourse between a married person and a person of the opposite sex, where these two people are not married. In proving this ground, it’s been decided in the case of Shanmugam v Pitchamany & Anor that you must prove that the adultery happened “beyond a reasonable doubt” - the level of proof normally required only in criminal cases. But, the court also recognized that people committing adultery are rarely caught in the act (or you could say: with their pants down), so the court can rely on circumstantial evidence to infer that adultery has taken place (things like holding hands, hearing noises from the bedroom, etc.) [READ MORE - Is it legal for Private Investigators to spy on people in Malaysia?] 2. You can’t be expected to live with your partner due to their behaviour Under this ground for divorce, you’re required to prove that your partner has behaved in a way that you cannot be reasonably expected to live with them. Section 54(1)(b) of the Law Reform (Marriage and Divorce) Act 1976 “...has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent” - (petitioner refers to the person requesting the divorce, and respondent refers to their partner) The standard of proof established by our case law for what is “reasonable” is based on what a reasonable, right-thinking person would conclude. This means that this is a subjective ground based on current morals and values, but in general, it covers situations where you have a constantly unhappy environment at home (frequent quarrels, long periods of silence between family members, lack of trust, etc). 3. Your partner has deserted you for 2 years In simple language, using this ground for divorce is the same as saying “my spouse abandoned me”. To prove this ground, you need to show that: Your partner intended to separate from you permanently You did not consent to them separating from you Your partner had no good reason to separate from you The period of 2 years is continuous According to an old English case from 1923 (Pulford v Pulford), desertion does not just refer to “not living together”, but can also refer to a situation where you are living in the same house, but are leading separate lives. 4. You’ve lived separately from your partner for 2 years This ground is pretty self-explanatory. If you’ve been living away from your partner for a continuous period of 2 years, you can use it as a ground for divorce. The court has to consider the whole scenario before pronouncing a divorce. They have to consider if your marriage is salvageable, and think especially of the best interests of your children (if you have any). If you manage to get your divorce certified by the court… You’ll get a certificate, buuut your divorce is not yet finalized Okay, divorce law itself is a bit like a persistent and clingy spouse - it’ll still give you chances to get back together. According to Section 61 of the LRMD, all decrees of divorce given at the first instance will be what’s called a decree nisi - which means that it is just a provisional declaration and has not been made absolute yet. Before the decree is made absolute, you can get it cancelled if you want. In other words, even if the court declares that you’re divorced, you’re not officially/legally divorced yet! You need to wait for 3 months from the time you get your decree nisi before you can make another application to the court to make your decree of divorce absolute. As with any other court proceeding, if you do need to go through with a divorce, it’s best to consult a lawyer to better know your options."
"Adakah undang-undang Malaysia benarkan orang awam menangkap penjenayah sendiri? Cuba korang bayangkan, masa korang tengah jalan-jalan, tiba-tiba korang ternampak satu kejadian ragut berlaku kat depan mata korang. So dalam situasi camni, apa yang korang akan buat? Pasti ramai antara korang yang akan bertindak menghubungi terus pihak polis kan? Tapi korang juga nampak peragut tu dah bermula melarikan diri, rasa sempat ke polis nak sampai kat tempat kejadian? Kalau korang rasa takde jalan selain tu, korang silap sebab sebenarnya... Korang boleh lakukan tangkapan sendiri Di dalam seksyen 27 Kanun Prosedur Jenayah, ataupun lebih dikenali sebagai Criminal Procedure Code (CPC – tiada penterjemahan rasmi) terdapat satu klausa “citizen’s arrest” (penangkapan oleh orang persendirian). Ianya salah satu cara untuk korang melindungi diri dan orang-orang sekeliling sementara menunggu polis tiba. Seksyen 27 (1) - Criminal Procedure Code (diterjemah oleh Asklegal) “(1) Mana-mana orang persendirian dibenarkan untuk mengangkap individu yang baginya melakukan jenayah “non-bailable” (tidak boleh dijamin) dan jenayah “seizable” (yang boleh ditangkap oleh polis tanpa waran), atau kategori lain yang telah dinyatakan di bawah seksyen 44 dan haruslah tidak melengahkan penyerahan individu tersebut kepada mana-mana pegawai polis terdekat, atau dalam situasi ketiadaan pegawai polis, membawa individu tersebut ke balai polis terdekat.” Kalau jenayah tu boleh dijamin (bailable), korang perlu membayar sejumlah wang untuk memastikan korang akan ke mahkamah di kemudian hari. Manakala jenayah yang tak boleh dijamin (non-bailable) pula bermaksud korang tak boleh mendapatkan pelepasan sementara. Senarai jenayah boleh dijamin dan tidak boleh dijamin terdapat dalam First Schedule CPC Malaysia. “Seizable offence” pula bermaksud jenayah yang boleh ditangkap polis tanpa memerlukan waran. Senarai jenayah ini ada terdapat juga dalam First Schedule CPC kita, dimana ianya merangkumi jenayah yang lebih serius/berat seperti rompakan dan mencederakan orang lain. Ni beberapa contoh kesalahan “seizable”: Pecah masuk rumah Ragut Culik Bunuh Rogol Menyebarkan berita palsu Akta Anti Sebar Berita Palsu yang diluluskan baru-baru ini mengelaskan penyebaran berita palsu sebagai jenayah “seizable” yang seperti diterangkan diatas. Secara amnya, mana-mana jenayah dengan denda maksimum 3 tahun atau lebih dikelaskan sebagai jenayah “seizable”. [BACAAN LANJUT: But what exactly is considered “fake news”?] Tapi penangkapan macam mana yang dibenarkan supaya korang tak didakwa? Terdapat cara spesifik yang telah ditetapkan oleh undang-undang untuk melakukan penangkapan. Yang paling penting sekali, ianya tidak keterlaluan atau melampau. Perbuatan mengikat pencuri sebelum menyerahkannya kepada polis jauh berbeza daripada pukulan sampai separuh nyawa dengan niat menghukum. Mengikut Seksyen 15 dalam CPC menyatakan apabila korang melakukan penangkapan: 1. Korang harus menahan atau menghalang badan individu yang ditangkap (ikat jika perlu) 2. Jika suspek cuba melawan, korang boleh gunakan kuasa yang diperlukan untuk menahankan dia 3. Jangan sesekali menyebabkan kematian suspek tu, melainkan individu tersebut telah melakukan jenayah yang boleh dihukum dengan kematian atau penjara seumur hidup (secara amnya korang tidak boleh menyebabkan kematian individu tersebut di bawah jagaan korang) [BACAAN LANJUT: Kadang kala, polis menahan orang yang melindungi diri dari perompak...kenapa?] Lepas tangkap dia, macam mana? Ok, mengikut Seksyen 27(1) CPC, korang harus menyerahkan individu tersebut kepada pegawai polis atau membawanya ke balai polis. Ini bermakna korang kena terus menghubungi polis dan menunggu sehingga pihak polis tiba atau korang boleh membawa terus penjenayah tu ke balai polis berdekatan. Oh ye, korang tak dibenarkan sama sekali untuk membawa individu tersebut ke kedai mamak, minum teh tarik dengan alasan kononnya nak slow talk. No, no, no! Senang cerita tak payah nak membawang sangat! Haha. Dalam masa yang sama, jangan membenarkan sesiapa pun mencederakan suspek sementara menunggu ketibaan polis. Tahu tak korang bahawa menyerang suspek yang tak berbahaya adalah satu jenayah. Lakukan penangkapan jika korang mampu sahaja! Jika korang berada dalam keadaan yang masih keliru sama ada korang boleh lakukan penangkapan atau tak, korang boleh guna formula ni: kalau korang ternampak seseorang atau sesuatu harta diambil atau dirosakkan, ia cukup serious untuk korang melakukan “citizen’s arrest”. Tetapi jika korang menangkap individu yang melakukan jenayah yang bukan “seizable offence” – jangan risau, pihak polis tetap mempunyai kuasa untuk memproseskan suspek tersebut. “Citizen’s arrest” adalah hak yang diberikan oleh undang-undang kepada rakyat, tetapi melakukannya adalah satu pilihan, bukan kewajipan. Kita memang mempunyai hak untuk menangkap pencuri, tetapi bergantung juga kepada kemampuan kita untuk melawannya. Utamakan keselamatan korang, ok? Sebagai contoh, ada kes dimana pemuda ini yang dilanggar kereta sendiri semasa menghalang pencuri kereta, dan warga emas ini pula telah meninggal dunia kerana ditikam ketika menghalang kes ragut."
"Are part-time promoters protected by labour laws in Malaysia? *Note: This article was originally written in 2018, and updated on 17 August 2022. If you’ve ever done part-time work before, you might have taken up a few positions where you promote products to the public, usually in a mall or at an event. You’re might be promised a fixed fee per day, or even be paid per month to follow a timetable. Depending on your luck, you might have also been treated unfairly by your bosses, such as not paying you on time, not giving you off-days, and even not paying you extra for working on public holidays. [READ MORE - Is it legal for my boss to make me work on a Malaysian public holiday?] Promoters who work full time are obviously considered employees, but a lot of promoters only work part-time as well, like on the weekends for extra income. We get sent a lot of questions by part-time promoters who have gone through these experiences asking if they’re considered employees who are protected by employment laws, or freelancers with no such protection. We can’t provide a definite answer to these questions (which is why we’re writing an article) because… It depends on your contract The short answer is: it depends. As a part-time promoter, you don’t usually have a great deal of independence in how you do the job, which points to you being an employee. But it’s very difficult to say for sure without knowing exactly what is in your contract (if you signed one at all). For example, you could have an arrangement with your employer that you’ll be using your special technique of promoting in a campaign, and you’ll be appearing on certain days decided between you and the employer - this would make you a freelancer. This arrangement is very different from if you mostly take orders from your employer on how to get the job done - you are probably given a scripted sales pitch to use when approaching people, which makes you an employee. We’ll get into the details of how this works below. For starters, let’s see how our employment laws categorize employees and freelancers. Employees have a “contract OF service” A “contract of service” is basically a contract where you’ve agreed to “be of service” to someone else - which establishes a typical employee-employer relationship. An employment contract is not just a list of terms and conditions you sign to get a job, it’s also one of the legal requirements for people to be recognized as an employee. Section 2(1) of the Employment Act 1955: ““contract of service” means any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as an employee and that other agrees to serve his employer as an employee and includes an apprenticeship contract;” Not all employees are considered equal in Malaysian law, and only employees who earn RM2,000 or less are protected under the Employment Act 1955, which gives protection against things like having no leave, or no extra pay on public holidays. Other employees will be relying on their employment contract for their rights (which is why you should always read your contracts). There are also different procedures to bring disputes depending on how much you earn, which we’ve covered in a previous article below. [READ MORE - If your boss refuses to pay you in Malaysia, what can you do?] [READ MORE - What happens if you sign a contract without reading it in Malaysia?] [UPDATE 17 August 2022] Starting on 1 September 2022, all employees will now be protected under a new amendment in the Employment Act 1955. Previously, the act only applies to employees earning RM2,000 or less. But in the new amendment, you will have the same protection regardless of your salary. However, if you earn more than RM4,000 you won’t be eligible for certain overtime payments and termination benefits. Both employers and employees should also relook at their contract now because under Section 7 of the Employment Act, if any of the terms in the contract is worse for the employee compared to the Employment Act, those terms will not apply anymore. Section 7 of the Employment Act 1955: “...any term or condition of a contract of service or of an agreement, whether such contract or agreement was entered into before or after the coming into force of this Act, which provides a term or condition of service which is less favourable to an employee than a term of condition of service prescribed by this Act or any regulation... shall be void and of no effect to that extent and the more favourable provisions of this Act or any regulations… shall be substituted therefor.” So for example, if you earn less than RM4,000 but your contract states that you’re not eligible for overtime pay, those terms do not apply anymore and you CAN claim for overtime. Freelancers have a “contract FOR service” Freelancers on the other hand come under a general group of people called “independent contractors”, and they enter what’s called a “contract for service” with their clients - they agree to provide a certain set of services to their clients. The relationship is governed by the contract itself (if they have one), and is NOT subject to any employment and labour laws. So any provision of rights and responsibilities of the freelancer and client should be in the contract itself. [READ MORE - Here’s how having a contract can help protect freelancers in Malaysia] Just because you say you’re a freelancer, doesn’t mean you are a freelancer While things seem straightforward as long as you have a clear label on your contract that it’s either an employment contract or a contract for services, the law does not pay much attention to what you call the contract. Instead, it pays closer attention to the actual effect and intentions behind the contract using a series of legal tests which will be covered in the next point. As an example, some independent contractors don’t just do one-off projects for clients, but also use a “booking” model where they get hired to fill a full-time position for some time, typically in industries which need more hands during peak season. If you’re hired as an assistant for a movie shoot, you might consider yourself a freelancer since you don’t stay on with the company after the shoot is done, but the law may actually consider you as an employee because you have a fixed schedule and job scope to follow. We’ll go over the legal tests below so you have a better idea of how this works. How much control does your employer have over your work? While the nature of your contract says a lot about whether you are an employee or an independent contractor, it doesn’t have the final say. There are at least 5 tests that the law uses in this: 1. The Control Test This test simply looks at how much control your employer has over you and your work. Are you allowed to work autonomously and make your own decisions? Or does your employer decide a lot of what you do and how you do things? The more control the employer has, the likelier you’ll be considered an employee. 2. The Independence Test This is the polar opposite of the Control Test. How much independence do you have when working? Can you decide on your own work process, work hours, and even subcontract work out? The more independent you are, the likelier you’ll be considered an independent contractor. 3. The Business Integration Test Business integration refers to whether your functions and role are part and parcel of a business’s operations. For example, dish-washing is an integral part of a restaurant’s operations; but although the restaurant’s electrician plays an important role, taking care of the lights is only accessory to the business (it doesn’t play a direct role in serving customers food). If your role is integrated into the business, you’re more likely to be considered an employee, and vice versa. 4. The Economic Reality Test As for this test, it determines whether you’re dependent on the employer things like your wages and skills training; or if you operate independently (eg. you train and acquire your own skills, you’re responsible for your own profit or loss, you run your own business). People who are economically dependent on their employers are more likely to be considered employees. 5. The Mutual Obligation Test This one is a simpler test - does your employer have an obligation to provide work to you, and you in turn have an obligation to do that work? If so, you’re most likely an employee. TL;DR - working part-time doesn’t always mean you’re not an employee To be clear though, being part-time doesn’t mean that a person is not an employee. According to Section 2 of the Employment Act, part-time employees are just employees who have between 30% to 70% of working hours compared to the full-time position. For example, if a full-time promoter normally works everyday, but you only work 4 days a week, then you are a part-time promoter. If you’re just hired to do promotions for a one night event, then it’s likely you’re a freelancer. You might also want to know that both full-time and part-time employees should have EPF contributions according to the Employees Provident Fund Act 1991. So employers who are taking you on will have to make the necessary arrangements. If you aren’t sure if your potential job is going to be considered “employment” or “freelance”, it’s best to consult a lawyer to be sure."
"What is motive and is it necessary to prove a crime in Malaysia? It is pretty indisputable that every Tom, Dick, and Harry out there would have come across the word, “motive”. According to a handy Google search, the foremost definition of this word is something (such as a need or desire) that causes someone to act and the Merriam-Webster site also conveniently gave an example – “Revenge was the murderer’s motive.” While motive is not specific to the world of crime and all unsavoury things, the association of it with such things has always been strong. For example, “Ah Hock suddenly messaged me after 10 years to catch up. Sure got motive.” “That fella stand in a dark corner, looking at the shop for one hour. What is his motive?” See what we mean? This association may come from the fact that motive is a staple of our favourite crime shows – have an unsolvable crime? Motive rescues the day! Find motive, make arrest, serve justice! Alas, once again, the media leads us astray because… Motive doesn’t prove a crime The issue (and importance) of motive has been highlighted by the media lately over talks of reopening the case of Altantuya Shariibuu. It was argued that the motive of the two police officers that were convicted in her murder trial were never established. Here’s the kicker though – motive doesn’t prove murder, or any crime as a matter of fact. So, wait. If motive doesn’t prove a crime, then why is it talked about so often and how are suspects found guilty? To answer both questions, we gotta start by looking at what actually constitutes a crime and it is one main thing known as facts in issue. The definition of what is a fact in issue can be found in section 3 of the Evidence Act 1950: ““fact in issue” means any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows;” Facts in issue are basically the building blocks of what constitutes each crime, as a way of explaining it. They are the cornerstone of what makes up a particular crime. The partner to facts in issue are relevant facts, which we will deal with later in the article. These facts in issue are also what the prosecution have to prove in each case in order to satisfy to the court that they have proven the accused’s guilt beyond reasonable doubt. For example, the facts in issue which the prosecution have to prove in order to satisfy the court that Ali has murdered Abu are: That Ali caused Abu’s death That Ali intended to cause Abu’s death This means that it is pretty straightforward to prove what murder is – it doesn’t involve all your extra bells and whistles like proving that Ali hated Abu with a fervour because Abu stole Ali’s potatoes ten days ago. If we were to write out a super watered down version of what happens in court, it might go like this: Judge: Did you stab Abu in the chest with the intention to kill him? Ali: Yes but I did it because he stole my Yukon Gold potatoesssss Judge: That “yes” is sufficient to prove your guilt. The “yes” is sufficient to prove Ali’s guilt because Ali is admitting that he committed the facts in issue (he caused Abu’s death and intended to cause his death). This is also why if someone goes on a rampage and kills random strangers, he can also be charged with murder and convicted of it despite the lack of a motive. This is because a person’s guilt in crime is proven by his act of committing the crime and his intention to do so. This is known as the actus reus and the mens rea i.e the act and the intention. Everything else are merely factors that add on or detract from the actus reus and mens rea. The golden question is – why is it talked about so much if doesn’t prove a crime? Motive is “relevant but not essential” This was stated by the judge in Altantuya’s case when he said: “Whatever his motive was, it is a matter of law that the “motive” although relevant has never been the essential to constitute murder.” - High Court of Malaya, 9 April 2009. Emphasis by ASKLEGAL. Okay but what does relevant but not essential mean? Remember when we told you that the partner to facts in issue are relevant facts? In the Evidence Act, there are more than 50 sections that talk about what makes a fact relevant or not. But let’s look at the definition of “relevant” in section 3: ““relevant”: one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.” We know that did absolutely nothing in terms of clearing up your confusion but it basically says that a fact is relevant when the Evidence Act says it is relevant. Section 8 of the Act goes on to explain that any fact which shows the existence of a motive can be relevant. Motive can be relevant because it can lead to the inference on whether a fact in issue exists or not. In other words, relevant facts help make the existence or non-existence of facts in issue more likely or not. We know this sounds very confusing but let’s do a short exercise together: Ali has been charged with murdering Abu. The evidence that is produced in court is a bloody knife with Ali’s fingerprints, a CCTV recording showing Ali entering Abu’s house, and the testimony from Abu’s son who saw Ali stabbing Abu. Which facts are facts in issue and which are relevant facts? If you guessed that Abu’s son’s testimony is a fact in issue while the bloody knife and CCTV recording are relevant facts, then you are absolutely spot on. Of course in actual criminal proceedings, the courts will look into Abu’s son’s testimony to determine whether he is a credible witness but that is a discussion for another article. At this point, you might be able to guess that facts in issue are facts that immediately show the crime happening, so there is no need for you to draw any inferences or guesses to determine if the crime was committed. On the other hand, relevant facts are facts which show that the crime very likely happened but you gotta put on your thinking cap a little and extrapolate from the relevant fact to determine if a crime was committed. This is why when proving a murder (or any crime, really) the courts will only look at whether the facts in issue have been proved. Proving relevant facts are akin to bonus points and can help the court decide on the person’s guilt easier."
"Here's what law students in Malaysia have to go through to become a lawyer Most people know that it’s not easy to become a lawyer but they don’t know exactly how not easy it is. If you’re at level 1 familiarity, you might think that all you need to do is to get a law degree and sit back while the money rolls in. If you’re at level 1.5 familiarity, you may have heard of certain terms like LLB, CLP, and Bar. Well, let’s now raise the bar on your level of familiarity. To start off with, lawyers do need a law degree but aside from that, they must also get called to the Bar – not the kind to knock back some cold ones, but the simplest description is that it’s the association of lawyers (sort of). To see how this works, the first thing you must know is… Having a law degree doesn’t make you a lawyer Depending on where our lawyers graduate from, their degree might be for 3 years or for 4 years. If they graduated from local universities such as University Malaya or Multimedia University, then their degree course takes as long as 4 years. On the other hand, if they graduated from overseas universities such as from the UK, Australia, or even from an external programme, their course is typically 3 years long. But it doesn’t end here! Graduating with a degree is only the first step. The difference lies in the fact that students who graduate from universities overseas or who hold an external degree must undergo a fourth and final year of study to gain their Certificate of Legal Practice, commonly known as the CLP….. or more commonly known to CLP students as the most stressful year ever. The CLP is a post-graduate course taken by such graduates to become a qualified lawyer in Malaysia. Essentially having a law degree means that you are a law graduate but it doesn’t make you an advocate and solicitor (official name for lawyers) of the High Court of Malaya – or Sabah/Sarawak depending on where you get called – yet. To see how someone can be admitted as an advocate and solicitor of the High Court, we must look at section 10 of the Legal Profession Act 1976 (“LPA 1976”). Section 10 tells us that the High Court has discretionary powers to admit either any qualified person or any articled clerk as an advocate and solicitor (emphasis added): The High Court may at its discretion and subject to this Act admit as an advocate and solicitor of the High Court— (a) any qualified person; and (b) any articled clerk who has complied with section 25: Provided that no person who is a qualified person by reason of his having passed the final examination for the degree or other qualification which makes him a qualified person under paragraph (a), (b) or (c) of the definition of “qualified person” in section 3 shall be admitted as an advocate and solicitor before the degree or other qualification has been conferred upon him. The two questions you would probably have right now is who is a qualified person and why can clerks become lawyers? We will deal with the articled clerks first. An articled clerk is not your average clerk but they are basically trainee solicitors. In exchange for working for a certain number of years under a qualified lawyer, the clerk basically “graduates” as a lawyer upon finishing those years of training. It’s basically like an internship with a guaranteed job. The definition of a qualified person can be found in section 3 of the LPA 1976 and it basically tells us that a qualified person is someone who has taken their final exams from certain universities that the Legal Profession Qualifying Board (“LPQB”) has set out. The more important part lies in sections 11-13 which tell us about the additional requirements to be a qualified person and what happens after passing the CLP. If you think that passing the CLP means that you will get called to the Bar immediately, well...we hate to burst your bubble but the answer is no. Harry Potter and the Chamber of Overworked Pupils After completing the CLP, law graduates would have to undergo a 9 month pupillage (also known as chambering) with their respective firms. This requirement is found in section 12 and it tells us that a Master (the qualified lawyer) and pupil (the law graduate) relationship must exist. Further to this, section 13 tells us that the Master must a senior lawyer who has been in practice for at least 7 years and the pupil is allowed to have different Masters during the 9 months. Section 13 also further explains how you can get up to 6 months’ exemption from your pupillage but we won’t go into that for the purposes of this article as it’s not really relevant. Section 11 is the section that sets out the qualifications for admission and in brief, they are: A citizen or permanent resident of Malaysia At least 18 years old Has good character Completed the necessary period of pupillage Has not been adjudicated bankrupt Has not been convicted of any crime Has not done any act which, if you are a barrister or solicitor in England, would disbar/disqualify/suspend you from practice Has not done any act which would disbar/disqualify/suspend you from legal practice in any other country After completing all this, you would have to do a bunch of procedural stuff such as filing your admission petition in court and so on. If you have successfully ticked off all the boxes above and have completed your 9 month pupillage, then you will be admitted as an advocate and solicitor of the High Court after which, your name will be entered on the Roll. The Roll is basically a list of all the lawyers that have been called since H.R Wrigglesworth, the very first guy to be called way back in 1948. Having your name on the Roll is not all though. In order to practice as an advocate and solicitor, you must have a valid practicing certificate. This is found in section 36 of the Act which tells us: “...no person shall practise as an advocate and solicitor or do any act as an advocate and solicitor unless his name is on the Roll and he has a valid practicing certificate authorizing him to do the act; a person who is not so qualified is in this Act referred to as an “unauthorized person”.” The case of Badan Peguam Malaysia v Kerajaan Malaysia further explains that an advocate and solicitor who has been admitted to the High Court but who practices without a practicing certificate is an unauthorised person. According to section 37, anyone who pretends or acts as an advocate for someone else can be punished with up to 6 months in prison and/or a fine of RM2,500. An exercise of this section can be seen in Re Ramanathan Velu where a solicitor who appeared in court without a valid practicing certificate was punished for contempt of court and sent to prison for the full 6 months, so yeah, they really don’t play around. Aside from getting admitted as a qualified person or an articled clerk, there are actually another two special ways that an advocate and solicitor can be admitted… If you are a foreign lawyer, you need special permission Under section 28A, the Attorney-General can issue a special certificate for admission of an advocate and solicitor to the High Court if they satisfy the requirements set out in the section. There hasn’t been an admission under this section (yet) but in brief, the requirements also relate to being a qualified person whether in Malaysia or any other country. The other section which foreign lawyers would use is section 18 which allows for admission by the court in special cases. Note that this is different from establishing a foreign law firm or international partnership in Malaysia. This section is about admitting a foreign lawyer for a specific case. The section reads: “...Court may, for the purpose of any one case...admit to practise as an advocate and solicitor any person who, if he was a citizen of, or a permanent resident in, Malaysia, would be eligible to be admitted as an advocate and solicitor of the High Court and no person shall be admitted to practise as an advocate and solicitor under this subsection unless— (a) for the purpose of that particular case he has, in the opinion of the Court, special qualifications or experience of a nature not available amongst advocates and solicitors in Malaysia; and (b) he has been instructed by an advocate and solicitor in Malaysia.” This basically tells us that the courts are allowed to admit a foreign lawyer if he has special knowledge related to a particular case and such knowledge is not available to our local lawyers. The last case that saw a lawyer admitted under this section was the case of Re Geoffrey Robertson QC where Geoffrey Robertson represented Raphael Pura, an Asian Wall Street Journal journalist, in four defamation suits. At the end of the day… The road is long and hard Unfortunately the road to becoming a lawyer is not an easy one as not only do you have to obtain a degree, you must pass a post-graduate course, and complete 9 months of training with your Master. With this, if you are a budding lawyer-to-be, good luck and practice saying this:"
"What's extradition, and is it hard to bring a Malaysian criminal back from overseas? You might remember one of Malaysia’s high profile extradition cases - the story of Muhammad Rizalman. He had entered a young woman’s bedroom with his pants and underwear down after following her home. He was extradited to New Zealand from Malaysia on 14 October 2014 to face the New Zealand court, and after the proceedings, he served a 9 month house-arrest sentence. But probably the bigger case in everyone’s minds is that of Sirul Azhar Umar, who had been sentenced to death by hanging for the murder of Altantuya Shaariibuu. Sirul had fled to Australia, but he was not extradited back to Malaysia, because Australia has a law against extraditing people who are facing the death penalty. (more on this later) There’s been some talk about Sirul getting extradited from Australia back to Malaysia early June 2018, following news about reopening the Altantuya Shaariibuu murder case. This has since been debunked by both Dr Mahathir and the Australian government. Though it looks like while he will not be extradited anytime soon, the Australian government has verified that discussions with the Malaysian government have taken place. But if the question on your mind is “what is extradition anyway?”, we have you covered. Extradition means sending someone back to where they committed a crime If you don’t know what “extradition” means, it’s basically when Country A catches a fugitive (a person who’s on the run) from Country B, and delivers that person back to Country B. For example, if you’re caught for stealing in Malaysia and flee to Thailand. The Thai government might catch you and then send you back to Malaysia. It can happen both ways: a fugitive gets sent from Malaysia back to another country, or gets sent from another country back to Malaysia. But why do we need to use a fancy thing like extradition in the first place? Well... Malaysian laws don’t apply outside of Malaysia We don’t want to go into the complex issues of international law here (so we don’t confuse you), so we’ll try to keep it simple. Malaysian laws don’t apply in other countries because each country has their own laws. So, you can’t exactly prosecute Thai national using Thai laws for a crime that took place in Malaysia. This is not the most accurate example, but imagine you’re in trouble for insulting a client at work. You’re going to get disciplined by your superior, but not your family (because work rules don’t apply at home). But, it wouldn’t be helpful to Malaysia if the Thai government refused to catch fugitives that run into Thailand - what if one day Thai fugitives ran to Malaysia too?. To solve the issue of escaped fugitives into another country, countries strike deals with each other called extradition treaties to decide what should be done (a treaty is basically a kind of contract between countries). [READ MORE - If Malaysia has a disagreement with another country, how do they settle it?] So does this mean that extraditing a fugitive is as simple as catching the fellow and then putting him on a plane? Not really, as there are certain conditions that must be fulfilled beforehand. The crime committed must be extraditable Section 6 of our Extradition Act 1992 provides that for extradition to happen at all, a fugitive must have committed an extradition offence. This is defined as a crime punishable by at least 1 year of prison, or death. The crime must also have happened either in Malaysia, or in a country that Malaysia has an extradition treaty with (although the Minister of Home Affairs can allow a request from countries that Malaysia does not have a treaty with). The Extradition Act also imposes certain restrictions on who can be extradited in Section 8. The full list is rather long, so we’ve summarized them into a few points here: The fugitive must not be wanted for a political crime (but this does not include crimes motivated by politics, such as assassination) They must not be punished for race, religion, nationality, or political opinion There must be no legal technicalities that would stop the extradition The procedure for an extradition to happen in Malaysia is as follows: A requesting country sends a warrant for the arrest of a fugitive to the Malaysian Minister of Home Affairs. The Minister verifies the document, and then tells a Magistrate Court to issue a warrant for the fugitive’s arrest. The Magistrate can also issue the warrant based on information from INTERPOL (the International Criminal Police Organisation). When the fugitive is caught, they are put before a Sessions Court in Malaysia and given a chance to show evidence that they should not be extradited. If the Sessions Court accepts the evidence, the fugitive will be released. But if a preliminary case has been proven, the fugitive is locked up until the Minister orders their surrender to the requesting country. There are a few possible situations that can develop from here, such as the fugitive challenging his detention as unlawful, but we won’t get into them for the sake of simplicity. Conditions in extradition treaties must also be followed From there, we’ve briefly covered Malaysia’s extradition laws, but we need to remember that there are two countries involved here, so their own laws and conditions need to be taken into account as well. Let’s use the Treaty Between The Government Of Australia And The Government Of Malaysia On Extradition as an example. The treaty contains a lot of the rules from our own Extradition Act on when extradition can happen, but there are also additional rules that must be complied with. For example, Paragraph 2 of Article 3 states that death penalty cases cannot be extradited without discussion and agreement between the countries. Australia has abolished the death penalty, and their Attorney General’s department has stated that they will not extradite anyone facing the death penalty unless they’re assured the death penalty will not be carried out. In fact, Section 15B(3)(b) of the Australian Extradition Act 1988 states that: “(3) The Attorney‑General may only determine that the person be surrendered to the extradition country concerned if: …(b) the Attorney‑General is satisfied that, on surrender to the extradition country, there is no real risk that the death penalty will be carried out upon the person in relation to any offence.” – emphasis added by ASKLEGAL The countries that Malaysia signs extradition treaties with can very well refuse an extradition request if the treaty is not respected. This is why the Malaysian government is considering revoking Sirul Azhar’s death penalty for the murder of Altantuya, so that he can be extradited from Australia. While there might be a lot of rumours out there about the case, what actually will be done remains to be seen."
"Bolehkah pihak pengurusan kondo di Malaysia masuk dan sita harta benda kepunyaan kita? Artikel ini diterjermahkan dari bahasa Inggeris. Click here for English version. Jika anda tidak membayar yuran penyelenggaraan di apartmen atau komuniti berpagar (gated community), anda mungkin mahu memulakan pembayaran sekarang. Baru-baru ini terdapat berita tentang pihak berkuasa membuat serbuan dan menyita barangan rumah (seperti telefon, laptop, TV, dan juga kerusi) pemilik yang tidak memenuhi caj-caj atau yuran bayaran berkenaan. Menurut Akta Pengurusan Strata 2013 (fail dimuat turun secara automatik), pihak berkenaan memang mempunyai kuasa untuk berbuat demikian. Oleh sebab kebanyakan orang zaman ini lebih suka tinggal di kondo atau apartment, ia adalah penting untuk mengambil tahu tentang undang-undang yang mentadbir pembangunan-pembangunan ini yang berbeza berbanding dengan rumah “tradisional”. Jadi, mari kita mulakan dengan persoalan yang sering kali orang tanyakan… Apa itu strata? Tidak kira apartmen, kondo, flat atau kini ada SOHO, SOVO atau komuniti berpagar; semua ini dikategorikan sebagai harta tanah strata. Ia merujuk kepada pembangunan tanah yang membahagikan bangunan atau tanah kepada unit-unit (atau lot) individu yang akan dimiliki oleh pembeli-pembeli rumah (termasuk juga flat dan komuniti bersekuriti). Salah satu cirinya adalah ia mempunyai harta bersama (common property) yang dikongsi dalam kawasan tersebut. Harta bersama bermaksud mana-mana bahagian lot yang dikongsi dengan penghuni-penghuni lain, misalnya seperti taman permainan, kolam renang atau dewan serbaguna. Ada satu lagi istilah iaitu “harta bersama terhad” di mana bezanya hanya orang-orang tertentu sahaja yang mempunyai akses kepadanya. Misalnya, kolam renang yang khas untuk penggunaan pemilik unit penthouse. Harta tanah strata datang bersama dengan hakmilik strata. Hakmilik strata ataupun dikenali sebagai strata title merupakan dokumen yang dikeluarkan oleh kerajaan untuk menjadi bukti anda sebagai pemilik harta tersebut. Jika anda membeli daripada pemaju, pemilikan itu dikeluarkan di bawah nama pemaju; di mana pemaju kemudiannya akan menukar nama pemilik ke nama anda sebagai pemilik yang berhak. Jika anda membeli secondhand (dirujuk juga sebagai subsale), pastikan penjual itu didaftarkan sebagai pemilik yang berhak di atas hakmilik strata. Sekarang pasti anda tertanya-tanya situasi-situasi apakah yang sering dihadapi sehari-hari oleh penghuni kediaman strata. Sebagai contoh, siapa yang seharusnya menguruskan harta bersama jika itu adalah milik/dikongsi bersama dan bagaimana halnya jika anda dan jiran anda bertelagah? Inilah masanya badan pengurusan turun padang… Terdapat tiga jenis badan pengurusan Kalao anda bertetap di harta strata, pasti anda sering kali mendengar orang berkata, “Ada masalah ke? Pergi saja complain kepada management.” Persoalannya, siapakah management atau badan pengurusan tersebut, dan apakah tanggungjawab mereka? Di bawah Akta Pengurusan Strata 2013, terdapat tiga jenis badan pengurusan iaitu: 1. Badan Pengurusan Bersama/Joint Management Body (“JMB”) JMB adalah gabungan kerjasama antara pemaju dan pemilik-pemilik harta strata. Ia harus ditubuhkan dalam tempoh satu tahun milikan kosong (vacant possession) diserahkan kepada anda tetapi sebelum serahan dokumen hakmilik. Pihak JMB mempunyai beberapa tugas dan tanggungjawab. Salah satunya adalah memastikan apartmen tersebut (atau taman perumahan yang berpagar dan bersekuriti) dan harta bersamanya diurus dan dijaga dengan baik. JMB juga bertanggungjawab ke atas caj penyelenggaraan (maintenance fees) dan kumpulan wang penjelas (sinking fund) (akan dibincangkan nanti di bawah) yang dikumpul daripada pemilik-pemilik unit. Tugas-tugas demikian adalah disebut dalam Seksyen 21 Akta Pengurusan Strata 2013. Untuk menyenangkan perjalanan tuganya, pihak JMB juga diberi kuasa menurut Seksyen 22 di bawah Akta Pengurusan Strata 2013 untik memungut caj-caj tertentu dan melaksanakan kerja-kerja lain yang berkaitan Suata perkara yang penting adalah JMB merupakan badan korporat yang mempunyai meterai perbadanan (common seal) sendiri. Ini bermakna anda sebenarnya boleh menjatuhkan saman kepada JMB jika mereka gagal melaksanakan tanggungjawab, dan juga sebaliknya, anda boleh disaman oleh JMB sekiranya tidak membayar caj-caj penyelenggaraan di bawah Seksyen 17(2) dan 17(3) masing-masing. Seksyen 17(2): “Badan pengurusan bersama…hendaklah merupakan suatu pertubuhan perbadanan yang kekal turun-temurun dan mempunyai meterai perbadanan.” Seksyen 17(3): “Badan pengurusan bersama boleh membawa guaman dan dibawa guaman terhadapnya atas namanya.” 2. Perbadanan Pengurusan/Management Corporation (“MC”) Perbadanan pengurusan mempunyai tugas dan kuasa yang serupa dengan JMB menurut Seksyen 59 tetapi ia hanya ditubuhkan selepas anda mendapat hak pemilikan harta anda. Ini bermaksud sekiranya JMB telah dibentuk sebelum adanya MC, maka JMB akan dimansuhkan dan segala tanggungjawab pihak JMB akan dipindahkan kepada pihak MC, yang hanya terdiri daripada pemilik-pemilik rumah sahaja, tanpa penglibatan pihak pemaju lagi. 3. Perbadanan Pengurusan Subsidiari/Subsidiary Management Corporation (“Sub-MC”) Sub-MC akan ditubuhkan sekiraanya pengasingan pengurusan diperlukan. Contoh pengasingan pengurusan ini adalah apabila terdapat harta bertaraf komersial dan bertaraf kediaman dalam sesuatu projek, atau jika ada harta bersama terhad terlibat. Seperti MC, Sub-MC juga mempunyai tugas-tugas lain yang sama, tetapi mungkin tertakluk kepada sekatan daripada MC. Untuk memudahkan pembacaan artikel ini, istilah JMB, MC dan sub-MC akan dirujuk sebagai badan pengurusan. Jadi, bagaimanakah badan pengurusan menjalankan kuasanya? Imej dari domain.com.au Contoh kuasa-kuasa badan pengurusan boleh dilihat daripada Seksyen 34 (bagi JMB). dan Seksyen 78 dan 79 (bagi MC dan Sub-MC). Sekiranya anda gagal memenuhi bayaran caj penyelenggaraan dalam waktu 14 hari dari pengeluaran notis tertulis oleh JMB, anda boleh disaman di mahkamah/Tribunal Pengurusan Strata atau disita harta benda kepunyaan anda di unit anda. Pihak berkenaan mempunyai kuasa untuk memecah masuk unit anda jika penyitaan dilakukan. Harta benda yang disita dalam serbuan seperti TV LCD/LED, rice cooker dan telefon pintar, kemudiannya dilelong untuk membayar bayaran yang tertunggak itu. Penyitaan hanya boleh dijalankan jika Pesuruhjaya Bangunan mengeluarkan waran penyitaan. Pesuruhjaya Bangunan ini berbeza untuk setiap kawasan. Anda boleh klik di sini untuk melihat senarai penuh Pensuruhjaya Bangunan yang ada di Malaysia. Tambahan kepada perkara di atas, jika anda tidak mempunyai alasan kukuh dan gagal membuat bayaran dalam waktu 14 hari notis tertulis dikeluarkan, anda boleh didapati melakukan kesalahan dan boleh didenda RM5,000 dan/atau dipenjarakan tidak melebihi tiga tahun (Seksyen 34(3)). Seksyen 34(2): “Jika mana-mana jumlah wang masih tidak dibayar oleh pembeli atau pemunya pada akhir tempoh yang dinyatakan dalam notis (14 hari)… pemaju atau badan pengurusan bersama, mengikut mana-mana yang berkenaan, boleh memfailkan suatu saman atau tuntutan dalam suatu mahkamah yang mempunyai bidang kuasa berwibawa atau di hadapan Tribunal untuk mendapatkan jumlah wang itu atau sebagai alternatif kepada mendapatkan wang di bawah seksyen ini, menggunakan cara memulihkan wang di bawah seksyen 35.” Seksyen 35: “(1) Pesuruhjaya boleh, apabila permohonan bersumpah secara bertulis dibuat oleh pemaju atau mana-mana anggota jawatankuasa pengurusan bersama, mengeluarkan suatu waran penahanan yang memberi kuasa bagi penahanan apa-apa harta alih yang dipunyai oleh pemunya petak yang ingkar yang boleh dijumpai di dalam bangunan atau di tempat lain di dalam Negeri itu.” “(4) Seseorang yang melaksanakan waran itu – (a) boleh, pada waktu siang, masuk dengan cara kekerasan ke dalam mana-mana rumah atau bangunan atau mana-mana bahagian rumah atau bangunan itu bagi maksud melaksanakn waran itu.” Contoh lain lagi, badan pengurusan boleh menggubal undang-undang kecil seperti larangan meletakkan kenderaan di tempat-tempat tertentu atau larangan membawa haiwan peliharaan masuk ke dalam rumah. Imej dari mid-day.com Eh, tunggu. Kenapa pula banyak caj-caj ni? Imej dari backyardwealth.wordpress.com Biasanya terdapat dua jenis caj yang anda harus komit apabila tinggal di kediaman hakmilik strata iaitu: (i) caj penyelenggaraan (maintenance fee) (ii) kumpulan wang penjelas (sinking fund) Caj penyelenggaraan ini bertujuan memelihara harta supaya sentiasa berada keadaan baik, tidak rosak, dan dijaga dengan rapi. Ini termasuklah perkhidmatan mencuci atau membersih kawasan, menjalankan pemeriksaan pendawaian elektrikal dan juga tangki air. Kumpulan wang penjelas (sinking fund) pula adalah untuk hal-hal yang lebih besar dan mahal seperti mengecat semula bangunan atau mengganti kemudahan-kemudahan yang sedia ada di kawasan kediaman. Secara ringkasnya, caj penyelenggaraan adalah untuk mengurus hal-hal yang kecil atau biasa, manakala sinking fund adalah untuk hal-hal besar, yang tidak akan timbul setiap hari. Jadi, apa jadi kalau badan pengurusan menyalahguna caj dan dana tersebut? Sekiranya timbul pertikaian dengan badan pengurusan, ada satu lagi badan istimewa yang boleh menguruskan masalah ini. Pembicaraan kes anda akan dilakukan oleh Tribunal Pengurusan Strata Imej dari kpkt.gov.my Akta Pengurusan Strata 2013 menubuhkan Tribunal Pengurusan Strata yang boleh membicarakan mana-mana 14 isu yang tersenarai dalam Jadual Keempat dalam Akta Pengurusan Strata 2013, dengan syarat tuntutan tidak melebihi RM250,000. Secara ringkasnya, anda boleh menyalurkan aduan kepada Tribunal jika badan pengurusan gagal melaksanakan tugas atau menyalahgunakan kuasanya. Sama juga halnya jika anda mempunyai pertikaian tentang kos pembaikan kerosakan di unit atau pada harta bersama. Anda juga boleh meminta Tribunal untuk mengeluarkan perintah kepada badan pengurusan supaya menyediakan informasi atau dokumen untuk anda atau arahan supaya dapat membuat tuntutan insurans. Sungguhpun begitu, semasa membawa aduan ke Tribunal, anda harus tahu bahawa anda sendiri yang mewakili pembicaraan kes anda. Peguam tidak dibenarkan terlibat dalam prosiding Tribunal kecuali sekiranya kes tersebut adalah kompleks atau anda akan menghadapi masalah kewangan jika tiada khidmat peguam dalam prosiding. Seksyen 110(2): “Tiada pihak boleh diwakili oleh seorang peguam bela dan peguam cara pada suatu pendengaran melainkan jika, pada pendapat Tribunal, perkara yang dipersoalkan melibatkan isu undang-undang yang kompleks dan satu pihak akan mengalami kesusahan kewangan yang teruk jika dia tidak diwakili oleh seorang peguam bela dan peguam cara.” Tambahan pula, hanya lapan pihak sahaja yang disenaraikan dibenarkan membawa tindakan ke Tribunal seperti yang terdapat dalam Seksyen 107 Akta Pengurusan Strata. Berdasarkan itu, hanya pihak yang mempunyai kepentingan (interest) dengan urusan harta berhak membuat tuntutan iaitu pemaju, pembeli, pemilik, badan pengurusan, dan mana-mana orang berkepentingan yang lain. Jika anda hanya menyewa, anda kemungkinan tidak boleh membawa tindakan ke Tribunal oleh sebab penyewa tidak tersenarai dalam Seksyen 107. Walaubagaimanapun, sekiranya anda dapat membuktikan kepada Tribunal bahawa anda termasuk dalam orang-orang berkepentingan yang lain itu, dengan kebenaran Tribunal, anda juga boleh memfailkan tuntutan. Tinggal di kondo berbeza daripada tinggal di rumah atas tanah Kelebihan tinggal di kediaman hakmilik strata adalah terdapatnya kemudahan fasiliti atau keselamatan yang lebih baik. Namun begitu, ada juga kelemahannya – kebanyakan kemudahan fasiliti ini adalah milik bersama, jadi harus ada kerjasama dan birokrasi jika timbulnya sesuatu masalah. Jika anda sedang membaca artikel ini di bawah siling rumah yang mengalami kebocoran, dan anda tidak tahu apa yang harus dilakukan, artikel kami tentang tanggungjawab kerosakan di kediaman hakmilik strata. [Baca lebih lanjut: Apartmen di Malaysia - Tanggungjawab siapa jika terdapat kerosakan harta benda?]"
"Have nightmares freelancing in Malaysia? Here’s how a contract can help you If you’ve ever been a freelancer, or know people who freelance, you’re probably familiar with the horror stories that can come out of it. The friend that was offered compensation in “good exposure”, that time another friend was given extra work over and over without pay…The list goes on. The general consensus is that freelancers are not actual employees of a company, and therefore, regular employment laws won’t apply to them. This is why many people consider that if you’re a freelancer, you’re pretty much left at the mercy of the person or company that commissioned you. This may not always be true, as depending on your actual situation, some “freelance” jobs might actually come under “employment” according to the legal definition of things. In which case, you could actually sue your client under employment law and get compensated. [READ MORE - How are Malaysian freelancers protected by law?] But on the other hand, freelancers actually also have a way to define their rights and responsibilities properly rather than just a verbal agreement. A contract can protect your legal rights If the law sees you as a freelancer and not an employee, then your only solution to a dispute will lie in your contract with the client - which too many freelancers don’t use and don’t have. A contract doesn’t prevent problems 100%, but many of the common problems that freelancers face can be mitigated with it. A contract can also outline how you and the client should solve issues that come up and, if you absolutely have to, you’ll have a record of what’s been agreed on to use in a small claims procedure later on. [READ MORE - You can use a small claims procedure to get clients to pay up] You don’t necessarily need to go to a lawyer and have a full-on contract written, but you should always agree on the core terms beforehand, and have them down in writing one way or another; having your correspondence as proof in email or text messages is better than nothing. The core terms would mean things like how much you should be paid, the payment structure (like if you want an upfront fee, or if you should be paid by stages of completion), and the scope of work. With that, here are some examples of what you can include in your freelance contract to avoid trouble. 1. The payment terms Solves: Not getting paid on time, or even not getting paid at all. Also lets you agree on the payment schedule. The payment terms very simply defines how much you should be paid, and by when. This is where you’ll state whether you’re charging an hourly rate or a flat fee. Some people also state they should be given an upfront payment or payment by stages to make sure they have enough money to follow through with the work. For example, if you were hired to produce a corporate video, renting filming locations can be expensive, especially if you need to use commercial areas like a race track. Getting the money upfront makes sure you have enough to work around without having to foot a big bill by yourself beforehand. If you need any special arrangements for payment, the payment terms is where you would want to make those requests. An example would be a specified method of payment (such as by cheque or bank transfer). 2. Who owns what Solves: Makes the project more flexible. Prevents any dispute on who owns the copyright to the work. This is an often overlooked point, but can be very important in some cases. The ownership of the project can affect a lot of things like what it can be used for, the cost of the project, and even who is allowed to use it. If you and your client don’t specify, there’s a law that is automatically applied for the ownership of a project. Section 26 of the Copyright Act 1987 states that when you’re doing work as an employee, or if you’re commissioned by someone, then your employer or client becomes the owner: “...where a work— (a) is commissioned by a person who is not the author’s employer under a contract of service or apprenticeship; or (b) not having been so commissioned, is made in the course of the author’s employment, the copyright shall be deemed to be transferred to the person who commissioned the work or the author’s employer, subject to any agreement between the parties excluding or limiting such transfer.” - emphases added by ASKLEGAL The last part we underlined means that if you want to, you can agree with your client that you will still own the work in the project. You can then license the work to them to use (basically you’re selling them the right to use it). At this point, you might decide on things like what your client can use your work for and how long they can use it (eg. only for this year’s Christmas promotion). Arrangements for these kinds of projects can vary wildly and be industry specific, so you’ll need to find out what works between you and your client. We should also mention that if you plan to include a project in your portfolio, you don’t automatically have the right to do so if your client is the owner of the work. You’ll need to include a line in your contract stating that your client will give you the right to use the work - but only in your portfolio and for self-promotion. Meanwhile, you might be pleased to know that your right to be identified as the author is automatic under Section 25(2) of the Copyright Act. [READ MORE - What is a copyright and how does it work?] 3. An indemnity clause Solves: Releases you from responsibility (liability) for events beyond your control, and freak accidents An indemnity clause is basically a line in the contract which limits your responsibility (liability) for something. In the case of freelance work, you may want to limit your liability for unforeseeable events. Imagine promoting a carnival where the main attraction is an elephant show. When the show opens, it turns out the elephants are missing, and there are a lot of angry ticket buyers. You probably don’t want to get caught up in that - since it wasn’t really your fault. An extreme real life example would be the Tropicana rebrand. Some of you might recognize this as the orange juice brand with commercials for “Tropicana Twister”. Back in 2009, Tropicana did a $35 million rebranding exercise to improve their product’s packaging. Instead of having a positive effect, this actually caused a 20% drop in sales (about $30 million). Now, imagine being personally responsible for that. It’s not everyday you run into a failure that costs so much, but this kind of unexpected event is why indemnity clauses are important. To be clear, you will still be liable for any damage you cause through negligence - breaching what is called the “duty of care” in law. In simple terms, it refers to a duty to reach a certain standard of work, and take reasonable precautions to make sure things don’t go wrong. [READ MORE - The duty of care exists because of this Scottish snail] 4. The scope of work and timeline Solves: Prevents “scope creep” and aligns expectations between you and your client on how much work can be done within a certain time If you ever had a client who constantly adds work onto your tasks with a quip about “it won’t take that long, right?”, you already know what it feels like to have your scope of work creep higher and higher. You charge a certain amount to get a certain scope of work done, so it really feels bad if you end up working on something that keeps getting sent back for add-ons and revisions even after an entire month. You’d probably started resenting the client at this point, which doesn’t make for a good working relationship. This is where a contract can help by defining the scope of what needs to be done beforehand: We will do XYZ for this amount, and if you need ABC done, we’re happy to help, but we’re tacking on an extra fee. Some people also put in a limitation on how many revisions they provide - the benefit of this is that you get the feedback in one go, and you make sure the revisions will not come endlessly. You’re probably also familiar with clients who come to you with an unreasonable timeline: a complete TV advertisement in 3 days or something like that. The contract is also where you may want to define an estimated timeline, so that your expectations line up with your client’s. Not only are you limiting how long this project can go on for, your clients may feel more comfortable working with you if you are transparent with them as to what’s going on (giving them progress updates helps). 5. Decide what happens during delays Solves: Issues of responsibility when there are unexpected delays (like if the client’s priorities shift). Also protects you if your client decides to drop off the radar. Then comes what many freelancers consider the ultimate headache - you get a project to work on, you’ve started work on it, refined it, and prepared a presentation for your client…..to find that they’ve basically disappeared on you. Sometimes, it’s because the client’s priorities shifted and they could only get back to you later which, apart from the wasted time, is usually not that big of an issue. But there’s also situations where you don’t hear from them for months on end despite your messages and calls - and then the project gets forgotten entirely. What about all that work you did…? You’ve accepted at this point that you’re most likely going to go unpaid. Oh well. This is why you need to include provisions stating what will happen if there are extended delays during the project. For example, you might write a term saying that if your client does not get back to you for more than 2 weeks: you’ll close the project and look for other work; payment for the work you’ve done is due; you’ll send them what you’ve produced so far; your client can come back and restart the project when they are ready. This outlines what should happen if the scenario pops up, and your client will have agreed to it by signing the contract with you. If a bad client insists you continue the work, you have your contract to back you up. And if you don’t get paid, you can file a small claims procedure mentioned in our first point if you have to. The contract would also be proof that you are owed money if say, the worst case scenario happens and your client goes bankrupt or disappears for some other reason. If you need a proper contract written… If you work small-time jobs, you might not have the resources to hire a lawyer to get a contract drafted, but the fact that you do small work doesn’t change the importance of protecting yourself legally. To paraphrase what some businesspeople have said to this writer: you don’t need that contract if everything goes well, it’s to protect you if things go wrong. Having some form of proof that you had an agreement with your client will help you substantiate any claims you may need to make later on. While contracts can be written in plain language, they should be written clearly and not be ambiguous. This guide on WikiHow might be useful if you want to write your own contract. That being said, it can help for you to consult a lawyer about the contract to make sure you’re covered in any areas of law you don’t know about. Another option is to explore sites like And Co, they have a complete toolset to make life easier for freelancers from invoicing to a customizable contract. You could also check out sites like TheContractShop for specialized solutions to your freelancing needs. Of course, the other thought brewing through your head may be “What if client don’t want to sign? Stupid article!!!!”, to which our response will be - you shouldn’t take them on. If a client isn’t willing to sign or even negotiate a contract, what are the odds of them being a good client without one?"
"If you're hit by a driver with no insurance, this Malaysian agency can help... for FREE Imagine this – you're driving a car and approaching a red light. You apply your brakes smoothly and gradually until your car comes to halt. The car behind, however, fails to stop and strikes the back of your car. As a result of the accident, your car is completely totaled and, worse still, you suffer injuries to your neck and spine. Most of us will probably know that we can “claim insurance from the driver” or, more accurately put, make a third-party personal injury claim against the insurance company of the driver that caused the accident. So, having that in mind, you immediately hire a personal injury lawyer to settle the claim and take care of the rest for you. But what if the driver caused the accident is either uninsured or has no third-party insurance coverage? In such a case, you may be advised by your lawyer to sue the driver personally. Meaning to say, the driver has to pay the expenses for your losses out of his own pocket or get in trouble with the court if he fails to do so. However, this still depends on whether the driver can actually afford to pay you, not to mention whole process may be time-consuming and costly. In this situation, you might be able to seek assistance from the MIB The MIB we’re referring to is the Motor Insurers’ Bureau of West Malaysia – you can skip all the way to the end of the article for contact details if you’re in urgent need of help. Otherwise, we’re getting ahead of ourselves here. If you’re wondering what all this “third party insurance” mumbo-jumbo is about, don’t worry as we’ll explain this first. Motor insurance 101 In the context of car insurance, there are 3 main parties: First party - The policy holder of the insurance (ie owner of the vehicle); Second party - The motor insurance company; and Third party - The other person involved in the accident who is claiming against the first party. If you own a car, you’ll know that you must buy a motor insurance policy in order to drive it or get in trouble under section 26 of the Road Transport Act 1987 which carries a maximum imprisonment of 3 years and/or a fine of up to RM1,000. This is where the terms “first-party insurance” and “third-party insurance” comes in. Based on that, there are 2 main insurance policies that you can purchase, namely: Comprehensive cover (a.k.a First-party insurance) – Just as its name suggests, this policy provides a wide coverage for both you and the other party involved. A standard comprehensive cover insurance policy insures you for loss or damage to your vehicle, death or injury of the other party and damage to the other party's vehicle. Third party cover (a.k.a. Third-party insurance) – This policy only insures you for claims of death or injury to the other party and damage to the other party's vehicle – but not your own vehicle. You might ask why would anyone get an insurance policy that doesn't cover damages to your own vehicle. Well this is because most first party insurance policies don't cover older vehicles. For the purposes of this article, we will only be focusing on the above 2 insurance policies. If you want to read know more about the other types of insurance policies, you can read it here. There are two types of motor insurance claims Now, let's focus on how to make an insurance claim when you make a first-party claim and a third-party claim. First-party claim In short, this type of claim is between you and your insurance company. So, let's say you ram your car into a tree, your insurance company will pay for the damages to your vehicle. In addition to that, this type of policy also insures you in a situation where you are involved in an accident with another vehicle, but you are not at fault. This is what is known as an 'own damage knock-for-knock claim' in the world of insurance. As you will find out below, this is much more convenient and less hassle free compared to making a third-party claim Making a claim against your own insurance is much easier and faster as everything is taken care of by your insurance company. All you have to do is to get in touch with your insurance agent and you will be informed of the nearest panel workshop to send your vehicle to. However, the common trait here is that a first-party claim usually only covers a policy holder for vehicle damage. Therefore, even an own damage knock-for-knock claim won't cover you for the injuries that you suffer. This is when you have to go for a third-party claim instead. Third-party claim For this type of claim, you’re claiming against the insurance company of the other party and because of that you don't have your own personal insurance agent to assist you with the claims. Therefore, you will have to hire a lawyer to represent you. Also, as the blameworthiness of both drivers is an issue, a lawyer is required as the case could end up in court. But if two drivers met with an accident, how do we know whose insurance company will have to cover the losses of the other driver? Ultimately, it all boils down to which party was at fault for causing the accident. In order to determine who is at fault, both drivers will have to go to the nearest balai polis to record their statements and fault will be determined based on these statements. That is why it is extremely important to make a police report after an accident. Let's take this for an example – No Pah King and Wai Bang Mi suffered from injuries as a result of an accident and both drivers have a comprehensive cover. No Pah King was found to be responsible for the accident for coming out abruptly from an illegal parking spot. Therefore, the insurance company of No Pah King will have to cover the losses of Wai Bang Mi and the latter will have to file a claim against the insurance company of No Pah King. But it will not be as straightforward if the third party has no insurance, in fact it's quite the opposite as mentioned above. Although the third party is likely to be punished with a maximum fine of RM1,000, or jail term of up to 3 months, or both, that will still not cover you for the losses you suffered. But thanks to the MIB, you can now submit a personal injury claim to them, even if the third party has no third-party insurance. Good news is that you don't even need a lawyer for this Just to give you a little bit of intro, the MIB was established from an agreement between the Ministry of Transport, general insurance companies in Malaysia and the Bureau itself. In short, it's primary purpose is to look into unfortunate positions of road accident victims in Malaysia, including providing money to accident victims in situations where the third party has no insurance coverage. A quick note, although it is called the ‘Motor Insurers’ Bureau of West Malaysia’, our friends from the Land of the Hornbills and the Land Below the Wind can also submit a claim to the MIB. You can find the full information on submitting a claim to the MIB here, but here are some of the nuggets that can be found in the website: You must submit a claim within 3 years from the date of the accident. If you hire a lawyer who proceeds by filing a lawsuit, your lawyer must notify the MIB within 30 days of filing the lawsuit. Only injuries suffered as a result of the accident is covered. Therefore, you will not be compensated for any damage to your vehicle. Also, bear in mind that any payment given by the MIB is on a compassionate basis and is entirely up to the discretion of the MIB. Hence, you may not get the full amount of what you can expect from a third-party insurance policy, but hey, something is better than nothing, right? If you plan to submit a claim to the MIB directly, you will be asked to provide documents (such as a cover letter describing the accident, police reports of yourself and the third party, your medical report, etc.) to support your claim. Hence, it is very important that you have these documents with you before you submit a claim. Here's where you can submit your claim to the MIB If you need to make a claim to the MIB, you should direct your claim to its office at Wisma Piam, No. 150-3, Jalan Tun Sambanthan, Brickfields, 50782, Kuala Lumpur or call you can call them at +60322747395. Being involved in a car accident can be a very stressful experience. The trauma and anxiety aside, there's so many other things that you have to do after an accident to make a personal injury claim. That it is why it is very important for you to know the rights and avenues that you have to make a claim based on your circumstances. Also, don't forget to drive safe peeps."
"3 ways the previous Malaysian government (allegedly) controlled businesses in GE14 THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect ASKLEGAL's position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article as it has not been verified by a practicing lawyer. by Thomas Lee Just a few days after the results of GE14 were made known to the public (along with the announcement of a new party in charge) Air Asia CEO Tony Fernandes temporarily stole the media spotlight with a video on his Facebook page apologizing for “buckling under pressure” to certain demands made by the then-government. These demands included a video thanking then-PM Najib and the BN government, painting an AirAsia plane in BN colors with the election campaign tagline “Hebatkan Negaraku”, and canceling special discounted flights meant to carry overseas voters back home (though this was not followed through). “Within 24 hours we were summoned by the Malaysian Aviation Commission (Mavcom) and told to cancel all those flights. That put us again under tremendous pressure.” – Tony Fernandes, as quoted from his video However, Mavcom disputed the claim and lodged a police report several days after the video was posted. At time of writing, the matter is still unresolved. While public reaction to the video was mixed, it brought to public light what some Malaysian companies – and the leaders behind them – allegedly had to do in order to safeguard their businesses. However, Tony Fernandes wasn’t the only person who released a video pre-GE14. Back in March 2018, a music video titled “Hebat Negaraku” featuring the musical talents of Government Linked Corporation (GLC) heads were released. While it was stated that the video was about CSR initiatives for the local community by GLCs, the video was also criticized for a number of reasons, including a release date that was close to the elections and bearing a title that was very similiar to the BN campaign slogan. 1. Allegedly asked to pay more taxes than necessary This was a claim brought up by PM Mahathir, in which he claimed that certain businesses and individuals were forced by LHDN to pay additional taxes despite having documentation proving that they’ve already paid the amount required. Companies who refused to do so had their businesses disrupted through raids and seizure of their account books, while individuals were blacklisted from leaving the country. PM Mahathir further stated that these were done as a warning to business owners against supporting the then-Opposition parties: “Many business people and individuals who had the means to support the opposition party had visits from IRB officers. … The visits were a way of preventing them from financing opposition parties.” – Tun Mahathir, as quoted by Free Malaysia Today While it’s unclear what actions can be taken if these allegations were true, a possible start can be in the Income Tax Act 1967 which can punish officials for overtaxing, overpenalizing, or defrauding a taxpayer; punishable with a fine of up to RM20,000 or up to 3 years in prison. Section 118 of the Income Tax Act 1967 – Offences by officials (in part) : Any person having an official function under this Act who— (a) otherwise than in good faith, demands from any person an amount in excess of the tax or penalties due under this Act; ... (d) defrauds any person, embezzles any money or otherwise uses his position to deal wrongfully with the Director General or any other person... However, the LHDN has denied the allegations and said that any taxpayer who isn’t satisfied with the results of an audit or investigation can appeal to the Special Commissioners of Income Tax within 30 days. 2. Alleged legal intimidation Before Tony Fernandes, another prominent Malaysian businessman caused quite a stir two weeks before GE14’s election day. On April 14th 2018, Datuk Seri Stanley Thai, founder of Supermax – one of the top 4 rubber glove manufacturers in the world – issued a public apology to ex-PM Najib for his vocal support of the the Pakatan Opposition during GE13. “I regretted getting involved in GEl3 – I believe I had been influenced by the Opposition. Being a businessman, I should not be involved in politics under any circumstances and I truly regretted it. I am now sincerely seeking forgiveness from Datuk Seri Najib for what I had done in the last election.” – Datuk Seri Stanley Thai, as quoted by The Star. However, some then-Opposition heads believe that the apology was politically motivated, as Datuk Seri Stanley Thai was accompanied by two BN MPs during the press conference, with Selangor MB Azmin Ali calling it an “unfortunate political gimmick”. It was further pointed out that after Datuk Seri Stanley Thai’s vocal support of the Opposition in GE13, he was charged with insider trading by the Malaysian Securities Commission in 2014, which led to a 5-year prison term and a RM10 million fine after being convicted in November 2017 – which he is appealing against. You can read more about the insider trading case here. Insider trading is an offence under Section 188 of the Capital Markets and Services Act 2007, and refers to someone who trades in the share market with information that’s not available to the general public (insider information). This is made clearer in the definition provided in Section 188: 188. (1) A person is an “insider” if that person― (a) possesses information that is not generally available which on becoming generally available a reasonable person would expect it to have a material effect on the price or the value of securities; and (b) knows or ought reasonably to know that the information is not generally available. Regardless, many in the investment community saw the apology as a warning to businesses to not support the Pakatan parties, which was also echoed by some analysts as well: “Most people see this both as a reminder of the predicament of Malaysian businessmen who have to gingerly navigate their way in a highly politicised environment, as well as the manifestation of a will to survive – personally and business-wise.” – Dr Oh Ei Sun, senior adviser at ASLI Malaysia, as quoted by The Star. However, Thai has maintained that his apology was not politically-motivated or related to the insider trading conviction. 3. Alleged threats to employees and government servants In the months leading up to GE14, the spotlight was thrown on civil servants and employees in government-linked corporations (GLC) in regards to their freedom to vote and participate in political activities, allegedly put under pressure to support the government and vote for the ruling party. While some forums contained discussions on companies with government contracts trying to get their staff to indirectly vote for the ruling government, Telekom Malaysia was also criticized for a April 11th circular barring its staff from participating as polling and counting agents on election day. On the other hand, teachers and education ministry officers were warned that they would face disciplinary action if they joined any opposition party or criticized the government: “We won’t allow any of our officers to join any opposition party or hold any party post. But it’s okay if they were to join the government.” – Education Minister Mahdzir Khalid, as quoted by Kwong Wah Daily via The Malaysian Insight. Civil servants were also reminded by the director-general of the Public Service Department to remain loyal to the Agong, government, and country as per Regulation 4(1) of the Public officers regulations (Conduct and Discipline) 1993, and that they should be appreciative of the existing government at the time. However, as pointed out by some lawyers, the rights of voters and secrecy of votes are protected by law, such as Section 5 of the Election Offences Act 1954 in regards to maintenance of secrecy at elections. Tommy Lee is a long-time follower of Asklegal and wannabe writer."
"Can people legally use your photos without permission in Malaysia? Imagine yourself relaxing in your favourite room, laying back in a comfy chair with your smartphone, scrolling through social media. You’re a bit bored and you’re looking for something interesting to read or watch. That’s when you come across an advertisement with a picture of someone looking really happy. It’s kind of familiar… Because it’s from a photo of you a few years ago!! Wait, how did they get your photo? Your minds races trying to figure out how on earth they did it, and hey - even if they found it on Facebook, they should have asked for your permission to use it, right? The answer to whether you can sue and should you sue lies depends on whether your permission was needed in the first place. And to answer that... It depends on who owns the photos Well, whether or not someone needs permission to use your photos in the first place depends largely on whether you took those pictures, or if they were taken by someone else. It’s a distinction most people don’t need to use in real life, but it’s really important for to see whose permission is required to use the photos. To be clear about this, Section 3 of our Copyright Act 1987 states that the “author” of a photograph is the person who made the arrangements for the photograph to be taken. This means that if you decided to hire a professional photographer to do a photoshoot of yourself, the photos taken are owned by you. In practice, here’s an idea of how it works: Ah Zai takes a picture of himself for social media. He is the owner of this photo. Ah Zai takes a picture of his best friend as a memory. He is also the owner of this photo. Ah Zai was hired by his best friend for a photoshoot. He may be the photographer, but his best friend will own the photographs. From that, any pictures with you in them which were taken by someone else (like by a news reporter) don’t belong to you. The ownership of those pictures lies with the photographer (unless they were hired to take photos, in which case their boss is the owner). This distinction affects whether someone needs your permission to use your photo because… Copyright law protects photos that you own A copyright basically protects your right to use and distribute your work. If you’d like to get a better understanding of how it works, you might find these articles of ours interesting. [READ MORE - How do you get something copyrighted?] [READ MORE - Is it illegal to steal ideas in Malaysia?] If you’re the owner of your own photo, then yes, if someone else wants to use it, they have to ask for your permission to do so. But, if Ah Zai took a picture of you like in our second example above, others have to ask him for permission to use the photo of you - because Ah Zai owns that photo. As the owner of the photo, you can ask others to stop using your photo, and you also have the right to sue. If it’s used on social media, you can also make a report to the administrators and request that the photo is taken down. But you might have no say over “fair dealing” with your photo Sounds simple so far? Here’s where it gets a little complicated - your permission might not be needed if other people use your photo in what is called “fair dealing”. Section 13(2) of the Copyright Act states that you don’t have the right to control: “fair dealing including for purposes of research, private study, criticism, review or the reporting of news or current events” “Fair dealing” would include the following situations: They used your photo for non-commercial or nonprofit educational purposes They were using your photo for somethings like a parody, or a case study They only used a small portion of your photo (like cutting out your clothes and putting them on a model, just for example) In a sense, as long as they’re not claiming it as their own, or interfering with the value of your photo, it might be acceptable. There’s also the question of “is it even worth suing them?” to consider because well, copyright lawsuits are pretty expensive. [READ MORE - Suing might not be worth it even if your work gets pirated!] The thought in your mind right now might be this: But it’s a picture of me! Surely my privacy is protected by law! Can other people really just use it through copyright? Yes, your privacy is protected, but… Malaysian law recognizes that people have a right to privacy, and you can consider taking legal action against invasions of your privacy if you have been hurt or suffered a loss in some way. This can mean things like harassment, humiliation, or damage to your reputation. For example, if someone uses your photo to wrongly accuse you of a crime, you may have grounds to sue them for defamation. You might find this second point hard to believe, but there are also no laws against taking photos of people in public. This means that by appearing in public, you automatically consent to be seen by people, so you can’t stop anyone from taking photos of you. (of course, you can still hide your face) [READ MORE - Can you legally stop someone from taking photos of you in Malaysia?] That being said, laws are laws but there are also social norms to be considered. While it could be perfectly legal to snap pictures of people at a cafe, we still consider it common courtesy to ask people for permission to take a close-up shot of them. Keep in mind that these are only the rules in Malaysia, and people from different countries may have different views on the issue. The Star’s photography etiquette guide for travellers might be useful to you if you love taking photos overseas."
"Apakah kuasa Polis Bantuan di Malaysia? [Artikel ini diterjemah dari Bahasa Inggeris. Click here for English version] Sudah pasti ramai yang arif dengan kewujudan Polis Bantuan di LRT/MRT/stesen keretapi dan di pusat membeli-belah. Mereka ni nampak macam polis, tapi bila anda lihat lencana mereka dengan teliti, anda boleh nampak perkataan “Polis Bantuan” padanya. Kadangkala kita tertanya-tanya, apa sebenarnya yang mereka buat dan adakah mereka ini polis yang betul dari PDRM? Bagaimana mereka dipilih dan dilatih? Bolehkah mereka membawa senjata api? Apa bezanya Polis Bantuan dengan PDRM? Mari kita lihat peranan asas Polis Bantuan bermula dengan… 1. Kuasa dan tugas Yang pertama-tamanya, mereka ini bukannya pengawal keselamatan. Polis Bantuan sebenarnya dilantik dan dikawal di bawah seksyen 47 – 50 Akta Polis 1967 bagi tujuan memberi khidmat pengawasan di kawasan-kawasan yang kekurangan pengawalan polis, dan boleh menjadi unit bantuan kepada PDRM dalam situasi yang diperlukan. Badan swasta (seperti pusat membeli-belah) “mengupah” Polis Bantuan dengan mengemukakan permohonan rasmi kepada PDRM untuk mendapatkan khidmat mereka, dan mereka akan bertanggungjawab untuk membayar gaji mereka. Menurut portal PDRM, seseorang pegawai atau anggota Polis Bantuan hendaklah disifatkan berkhidmat dari bulan ke bulan, walau bagaimanapun tempoh perkhidmatannya adalah tertakluk kepada sebarang perjanjian yang dibuat dengan majikannya. Tugas mereka termasuklah: Rondaan, bit dan kawalan statik Kawalan orang ramai, memeriksa orang dan kenderaan Melindungi dan mengiring harta majikan Mencegah kesalahan jenayah Mengesan dan menangkap pesalah Tugas utama Polis Bantuan adakah untuk melindungi harta benda milik majikan dan mencegah jenayah di kawasan jagaan mereka. Ini bermakna mereka berfungsi sebagai polis di dalam lingkungan kawasan milik majikan mereka. Seperti yang dijelaskan di atas, mereka juga bekerjasama dengan polis PDRM, jadi bagaimana “percanggahan kuasa” dielakkan bila berdepan dengan keselamatan awam? Soalan yang bernas sekali! Perenggan 20 Perintah Tetap Ketua Polis Negara menyatakan bahawa apabila Polis Bantuan bekerjasama dengan pegawai polis dari PDRM, pangkat Polis Bantuan haruslah lebih rendah dari pangkat pegawai polis PDRM. Perenggan 6.5 pula menyatakan bahawa pangkat tertinggi mana-mana Polis Bantuan tidak boleh melebihi pangkat Ketua Polis Daerah kawasan terbabit. 2. Pelantikan Polis Bantuan Seksyen 47(1) Akta Polis 1967 menyatakan bahawa: Ketua Polis Negara, dengan persetujuan Menteri, boleh melantik atau menaikkan pangkat mana-mana orang untuk berkhidmat dalam Polis Bantuan sebagai pegawai kanan polis bantuan dengan pangkat kehormat Penguasa, Timbalan Penguasa, Penolong Penguasa atau Inspektor, dan boleh menetapkan kawasan di mana pegawai itu akan berkhidmat. Ketua Polis Negara, dengan restu Menteri Dalam Negeri, boleh melantik mana-mana individu sebagai Pegawai Kanan Polis Bantuan dari pangkat kehormat Inspektor hingga ke pangkat Superintendan. Individu ini boleh terdiri dari mana-mana pegawai polis yang telah menjalani latihan. Seksyen 47(2) pula menyatakan pelantikan pegawai rendah polis bantuan: Seorang Pegawai Memerintah atau mana-mana pegawai polis yang diberi kuasa olehnya bagi maksud itu, dengan atau tanpa perjanjian bertulis, boleh melantik atau menaikkan pangkat mana-mana orang untuk berkhidmat dalam Polis Bantuan sebagai pegawai rendah polis bantuan dengan pangkat kehormat sub-inspektor, sarjan mejar, sarjan atau koperal atau sebagai seorang konstabel polis bantuan dan boleh menetapkan kawasan di mana pegawai itu akan berkhidmat. Pegawai Memerintah atau mana-mana pegawai polis yang diberi kuasa olehnya boleh melantik mana-mana individu (selepas latihan) sebagai pegawai rendah polis bantuan. Sepertimana pelantikan pegawai kanan Polis Bantuan, pegawai polis yang sedia ada ataupun individu yang telah melalui latihan akan dilantik. 3. Latihan Kepada sesiapa yang pernah menyertai badan beruniform Kadet Polis semasa sekolah menengah dulu, pasti anda ingat latihan kawat dan latihan-latihan lain. Ianya lebih kurang sama dengan latihan untuk Polis Bantuan, namun ada juga perbezaannya. Latihan Polis Bantuan dijalankan selama 9 minggu di Pusat Latihan Polis. Majikan mereka bertanggungjawab ke atas penginapan, makanan, peralatan dan lain-lain yang diperlukan semasa latihan ini. Pusat Latihan Bukit Aman menyediakan sukatan latihan dan ini dikaji dari masa ke semasa untuk memastikan keberkesanan dan kaitan sukatan latihan. Majikan Polis Bantuan juga perlu menyediakan kursus dan latihan tambahan dari masa ke semasa. Mereka juga boleh menghubungi Badan Polis Bantuan untuk mendapatkan maklumat tentang latihan yang bersesuaian untuk memantapkan lagi prestasi pegawai mereka. Contoh latihan boleh dirujuk di sini. Organisasi pengawasan ada tatatertib yang perlu dipatuhi. Ini termaktub dalam Perenggan 26-28. Perenggan 26: Seorang anggota Polis Bantuan hendaklah tertakluk kepada peraturan-peraturan tatatertib yang seberapa hampir seperti seorang pegawai polis yang setaraf pangkat dengannya Perenggan 27: Majikan bertanggungjawab mengambil tindakan salah laku anggota-anggota Polis Bantuan di bawah kawalannya dan melaporkan keputusan tindakan salah lakunya kepada Pesuruhjaya/Ketua Polis Negeri yang berkenaan untuk tindakan selanjutnya. Perenggan 28: Ketua Polis Negara boleh pada bila-bila masa mengikut budi bicaranya menarik balik kuasa polis seseorang Pegawai Kanan Polis Bantuan dan boleh juga menurunkan pangkatnya ke pangkat yang lebih rendah. Pesuruhjaya atau Ketua Polis boleh pada bila-bila masa mengikut budi bicaranya, menarik balik kuasa polis seseorang Pegawai Rendah Polis Bantuan atau Konstabel Polis Bantuan. Seperti mana yang telah kita bincangkan, ada juga Polis Bantuan yang membawa senjata api, jadi… 4. Senjata api, gari dan cota Ya betul! mereka boleh membawa senjata api, gari dan cota. Menurut Perenggan 25, Polis Bantuan boleh membawa dan menggunakan senjata api, gari dan cota yang dilesenkan di atas nama majikannya, dengan syarat mereka hanya boleh membawa dan menggunakannya semasa menjalankan tugas-tugas rasmi yang diarah oleh majikannya dalam kawasan yang ditetapkan. Sejauh mana perlu kita mengikuti arahan Polis Bantuan? Disebabkan Polis Bantuan diambil bekerja oleh majikan mereka, bidang kuasa mereka hanya tertakluk di kawasan milik majikan mereka ataupun di mana mereka ditugaskan. Mereka tidak mempunyai kuasa di luar kawasan tersebut. Jadi kita tidak perlu bimbang jika kita nampak abang-abang Polis Bantuan di tempat awam. Malah, tak perlu bimbang pun bila kita berada di kawasan mereka bekerja, melainkan jika kita ada buat benda dajal."
"What type of protection do whistleblowers get in Malaysia? Imagine yourself being in a meeting with a client and your boss. You’ve just negotiated a project successfully, and you’re shaking hands with the client, but something bothers you - did your boss “win” the project in exchange for… under-the-table money? You can’t believe that your boss actually did that. You’re thinking of asking your buddy from the finance department for some information to verify the incident, and report your boss for corruption… But you will probably get fired if your boss finds out! You want to report your boss’s corruption, but you can’t afford to risk losing your job in the process either. What can you do? You might be able to get protection as a “whistleblower” In this situation, you would be a potential “whistleblower”. Basically, whistleblowers are people who inform others about unethical or illegal activities. This doesn’t just involve what the government does, but also what your employer and even your colleagues may be doing. While it’s not every day you run across scandals about people using apartments to store cows, you could become a whistleblower on something as simple as a colleague stealing office supplies. While your stationary-stealing colleague probably can’t do anything other than stare daggers at you, it’s different when reporting a boss as they have the power to fire you and possibly mess up your chances for future employment. This is how the idea of whistleblower protection works - you get certain immunities and protections for exposing a scandal. This kind of protection is codified into laws like our own Whistleblower Protection Act 2010 (WPA), which is meant to encourage more people to come forth instead of keeping quiet in fear. You get 3 protections as a whistleblower, but there’s a catch… Under Section 6(1) of the Whistleblower Protection Act, a whistleblower is anyone who discloses any disciplinary offences or criminal offences to the authorities (such as corruption and fraud). In turn, whistleblowers are given 3 types of protections: The whistleblower’s identity is kept confidential. Immunity from legal liabilities and any administrative or disciplinary action against them for revealing the improper conduct Protection from any actions causing loss or injury, including intimidation, harassment, discrimination, demotion, termination of employment, etc. This is all well and good to help people stand up against corruption, but you might be wondering: if these protections are given to whistleblowers, why did people like Rafizi Ramli get convicted of a crime instead when they reported illegal activities? Rafizi was charged for revealing confidential information about 1MDB under the Official Secrets Act 1972, as well information about the National Feedlot Corporation under the Banking and Financial Institutions Act 1989 (since repealed). But since the WPA was supposed to give him immunity, what happened here? Let’s get things straight, the WPA is supposed to be a good piece of law, but the Act has a few shortcomings which have been widely criticized by several people, including Christopher Leong, former chairman of Malaysia’s Bar Council. You can find the legal reforms he recommended as well as improvements to the implementation in his detailed report about the WPA. With that, let’s get to a few of the shortcomings in the WPA and why they can get in the way of encouraging whistleblowers to come forward with information. 1. Certain types of information cannot be disclosed This is like those terms and conditions that you didn’t read, except it really ends up biting you in the end. Section 6(1) of the WPA contains a proviso that says: “Provided that such disclosure is not specifically prohibited by any written law.” This becomes a problem, in particular because of the Official Secrets Act (like what Rafizi Ramli experienced), and a part of the Penal Code. These laws prohibit people from sharing certain types of information, which in turn makes it illegal for a whistleblower to disclose. You can read more about the Official Secrets Act at our article about it. [READ MORE - So what exactly is an Official Secret?] Moving to the Penal Code provision we mentioned, it’s Section 203A and concerns the disclosure of information: “Whoever discloses any information or matter which has been obtained by him in the performance of his duties or the exercise of his functions under any written law shall be punished with fine of not more than one million ringgit, or with imprisonment for a term which may extend to one year, or with both.” This law is extremely broad and actually makes it illegal for civil servants to disclose any information they get about improper practices and illegal activities in government departments. Furthermore, Syahredzan Johan, constitutional lawyer, has given the example that this law also makes it illegal for the Immigration Department to inform the public about the results of a raid - it sounds ridiculous but that’s what the way it’s phrased means. This shortcoming of the WPA was what got Rafizi Ramli into legal trouble for sharing information about 1MDB and the National Feedlot Corporation. 2. You can only whistleblow to the government The definition of a “whistleblower” in the WPA is actually very limited - you only count as a whistleblower if you’re informing one of the government’s enforcement agencies. According to this article, there are currently 7 enforcement agencies you can contact: The Royal Malaysian Police The Malaysian Anti-Corruption Commission The Royal Malaysian Customs Department The Immigration Department The Road Transport Department The Companies Commission of Malaysia The Securities Commission This means you’re also technically not allowed to go to get legal advice on what to do, and you can’t go to the media with a story either. While Section 8(1) protects the identity of the whistleblower from being known, it also prevents the whistleblower from going to anyone else with the information after informing those enforcement agencies about it. “Any person who makes or receives a disclosure of improper conduct or obtain confidential information in the course of investigation into such disclosure shall not disclose the confidential information or any part thereof.” A law like the WPA is meant to help fight corruption and protect the people who bring the cases to light, so it makes little sense for them to be punished just because they didn’t go to a specific person (what if you don’t trust the enforcement agency to handle the case?) 3. Some whistleblowers might not qualify for protection From time to time, a tip off on illegal activities could come from an unlikely source - one of the partners in crime who decides to expose the scheme. It’s very difficult to decide right away if this person should qualify for whistleblower protection, especially since they’d have protection from criminal proceedings. Currently, Section 11(1)(a) of our WPA makes it mandatory for whistleblower protection to be revoked if the whistleblower was involved in the improper conduct that they are reporting. It’s been argued by Christopher Leong that revoking the protection should be an option instead, simply because it’s better to let the whistleblower go free than letting an entire corruption scheme go unnoticed. Of course, if the mastermind of the improper conduct came forward, protection should not be granted to them. Also, Section 11(1)(e) denies protection to whistleblowers who came forward because they wanted to avoid losing their jobs or getting punished. Again, Christopher Leong proposes that this should not be an automatic denial of protection - because it gets in the way of helping people to come forth and expose wrongdoings. Their motives don’t matter that much unless they are trying to take advantage of the system. The proposed reform still let’s the authorities revoke whistleblower protection if necessary, such as if the case is frivolous or abuses the process. This law is in line for amendments As of the time of writing (8 June 2018), there has yet to be any amendments to the Whistleblower Protection Act. However, it has been brought up by Kepong’s MP Lim Lip Eng as a law he will table a motion for, and it was also brought up in Pakatan Harapan’s manifesto as one of the laws in need of reform Tun Dr. Mahathir is also chairing a meeting of the Special Cabinet Committee on Government Management Integrity today (8 June 2018), so keep an eye out for news of the coming reform."
"If you find an antique coin in Malaysia, can you legally keep it? You’re walking along your neighborhood park one beautiful morning, accompanied by the delightful singing of birds. The smell of freshly-baked bread dances through the air from a bakery nearby, and the sun caresses you with its light. You can’t help but feel a little cheeky, so you take your shoes off, smile, and skip slightly in joy as you feel the cool grass beneath your feet. That’s when it happens. Your left foot comes down hard on a small but solid object. A tiny jolt of pain scuttles up your left leg, and you instinctively lift your limb up to examine the cause of your discomfort. Your discovery? An old Straits Settlement one cent coin embedded upright in the ground. You promptly pluck it out and place it in your pocket, wondering how much you can sell it for on eBay. After all, finders keepers, right? Not quite. In fact, you may have just committed a crime in the eyes of Malaysian law. Any historical items or treasure you find must be sent to the government According to the National Heritage Act 2005, if someone discovers any object which he or she believes to have cultural, historical or heritage value, they must submit it to the Federal Government for assessment and examination. This must be adhered to regardless of how small or seemingly negligible such an object may be. However, it doesn’t apply to family heirlooms that have been passed down from relatives. Section 47(1) of the National Heritage Act 2005 – Discovery of object (In part): Any person who discovers any object which he has reason to believe has cultural heritage significance shall immediately notify … and where practicable, deliver the object to the Commissioner, authorized officer or the District Officer … In the context of our opening example, an old Straits Settlement coin would clearly have some cultural heritage significance, and is thus a historical object that must be delivered to the Federal Government for evaluation. Of course, this would also extend to other items which we’ll get into later on in this article. The reason why this law exists isn’t because the government wants their hands on your preciousssss but rather it’s to prevent the illegal trade of historical artifacts on the black market (and eBay!). This illegal trade doesn’t just result in precious historical items being lost to private collectors, but also the destruction of heritage sites by treasure hunters and profiteers. But don’t worry though… if you turn in an item that has historical significance, you’ll still be rewarded for the discovery. Once a heritage object is recognised by the Federal Government, an evaluator may be called in to determine the exact value of the object, after which you will be paid compensation in proportion to this value. This is explained in Section 48 of the National Heritage Act 2005: Section 48(2) of the National Heritage Act 2005 – Proprietary right in the object: A competent heritage valuer may be appointed by the Commissioner to decide on the value of the object for the purposes of ascertaining the amount of compensation, and the decision of the competent heritage valuer shall be final. While we won’t go into the details, the Act also allows compensation for the owner of the land where a heritage item is found. However, if the Commissioner decides not to keep the item, then it’ll be returned to you. On the other hand, not turning something in will net you with a fine of up to RM50,000 and/or up to 5 years in prison as per Section 47(5) of the Act. As such, unless you would like to court yourself some trouble, it would be best to adhere to the law and prevent your newly-discovered lucky coin from turning into an unlucky one. Soooo…. what’s a heritage item? According to Section 2 of the National Heritage Act 2005, a ‘historical object’ is any item or artifact that has religious, artistic, historic or traditional value attached to it, including: Household materials or decorative items. Works of art or traditional weapons. Manuscripts, coins, currency notes, crest flags or badges. Vehicles, be it in part or whole. However, not all antiquities and historical objects are automatically classified as national heritage items. The Act goes on to explain that heritage items are those which fall under a very specific umbrella: Section 2 of the National Heritage Act 2005 – Interpretation (In part): … “heritage item” means any National Heritage, heritage site, heritage object or underwater cultural heritage listed in the Register; The ‘Register’ that is referred to in the statement above is the National Heritage Register – essentially a growing list of all objects that are officially recognised as heritage items in the eyes of the law. This can also include buildings, parcels of land, and even people! Yup, there are currently 21 living people recognized as a National Heritage, though we doubt they going to be too easy to pocket if you accidentally step on one. In case you were wondering, the Act also applies to historical items that are discovered underwater – which means the water will not be able to wash away the fact that you broke the law if you choose to pocket them. In the eyes of the National Heritage Act 2005, coins that are found in Malaysian waters are regarded as a type of ‘treasure trove’, which it defines as: Section 2 of the National Heritage Act 2005 – Interpretation (In part): “treasure trove” means any money, coin, gold, silver, … or any object or article of value found hidden in, or in anything affixed to, the soil or the bed of a river or lake or of the sea, … The act tells us through its Section 74 that when a treasure trove is discovered, the discoverer must inform the Federal Government regarding his discovery with as much detail as possible regarding the location and condition of the discovered items. To do this, the party responsible for the discovery can approach the District Officer of the area in which the trove was discovered. Failure to do so carries a penalty in the form of either a maximum fine of RM50,000, imprisonment for a maximum of five years, or both. Unless it’s a family heirloom, it doesn’t belong to you Why, you ask? Section 48 tells us that after the Act came into effect in 2006, any item discovered on Malaysian soil which is reasonably believed to have heritage value is the property of the Federal Government by default. This holds even in the case of objects that aren’t officially recognised as heritage items yet. Section 48(1) of the National Heritage Act 2005: Any object discovered after the date of the coming into operation of this Act shall be the absolute property of the Federal Government provided that where the object is discovered on an alienated land, compensation may be paid to the owner of the land This also translates to say that unless you discovered the object before 2005 or inherited it from someone you know, you probably shouldn’t be selling something that isn’t actually yours. If you are caught selling heritage items without the necessary permit or permission to do so, you will be slapped with a maximum fine of RM50,000 and/or imprisonment for a maximum term of five years according to Section 91 of the National Heritage Act 2005. The Act actually has a section about selling permits, but we’ll leave that for a separate article. So if you’re wondering why this law exists, keep in mind that preservation of a nation’s heritage is important to any country; to the point that some countries are petitioning museums to return artifacts that were stolen or smuggled. Unless we fancy a future where Malaysians would have to travel to Europe to view a piece of their country’s history."
"What can Malaysian authorities do against dirty restaurants besides closing them down? You’ve probably dined at an establishment that was a little unclean before. Whether it was finding a fly in your drink, or seeing a rat suddenly scurry across the floor, these scenarios are experiences we’ve probably had from time to time. But that doesn’t make it any more acceptable. Food and Beverage establishments have problems that are difficult to tackle, but they must be solved nonetheless as the potential health issues can be pretty serious. But there’s also those “what on earth” scenarios like with Raj’s Banana Leaf Restaurant that had workers washing plates in a pothole, and did not vaccinate their workers for typhoid as required by the Food Cleanliness Regulations 2009. They’ve since been shut down by DBKL’s health officers, but you might be wondering why they were allowed to operate like that for so long. You’ve probably had to endure cases of food poisoning and tolerated dirty premises with no idea what action you can take against these errant restaurant operators. So, what exactly do the health officers do as enforcement against dirty restaurants anyway? Health officers can order clean-ups and close restaurants down The people in charge of health inspections are the “authorized officers” under the Food Act 1983. They are defined as: “...any medical officer of health or any assistant environmental health officer of the Ministry of Health or of any local authority, or any suitably qualified person, appointed by the Minister to be an authorized officer under section 3” These health officers have many powers under Section 4 of the Food Act, and they include the following: To enter any food premises and examine the food, take samples, and inspect how the food is being handled Examine documents and records on food premises, and make copies of them Confiscating any food or appliances that are unhygienic Questioning the staff and owner of the food premises On top of that, Section 10 also empowers health officers to order a restaurant to clean up their premises and appliances within a certain period of time. If the place is not cleaned within the time limit, they can also prohibit the restaurant from operating until it’s cleaned. Opening the restaurant without first cleaning it is a crime and the punishment is a fine and/or up to 5 years of prison. Then, perhaps the most familiar power to us is that they have they can force-close unhygienic premises. Section 11 of the Food Act states that health officers can order a restaurant to close for up to 14 days. Failure to comply with this closure is also a criminal offence and carries a penalty of a fine and up to 5 years of prison as well. As with so many other areas of our laws, we actually some pretty good laws in place that were lacking in enforcement for one reason or another. For example, according to former DBKL Health and Environment Department director Dr Hayati Abdullah, there’s actually a lack of resources for them to perform the enforcement, but they still have to keep to the inspection schedule. While allocating more resources to the local councils is not something we citizens can do, we can definitely keep enforcement accountable - by making complaints. You don’t really want to wait for a routine check for an unhygienic restaurant to get caught, so who do you go to? You can lodge complaints with your local council From what we know, the people who are usually doing the checks and enforcement are officers from your local council, like MPSJ and DBKL. As an example, Subang Jaya resident can voice their concerns to MPSJ through a login service, filling out their online form, or making a phone call. Look for how to contact your local council, and make a report with them so they can take action on those unhygienic food premises. You can also file your complaint with the National Consumer Complaints Centre, which makes complaints and claims on behalf of Malaysian consumers. Scenarios you can make a report about are not just limited to when you actually get food poisoning, but also include: Presence of pests like cockroaches and rats Unhygienic practices like washing plates with dirty water Dirty utensils Foreign objects like insects, staples, and hair in your food The food was prepared with harmful substances (such as using non-edible food colouring) Food containing spoiled or diseased ingredients, or animal parts not meant for food Food or drink being mixed or diluted with substances that make it less nutritious They have pipes running water directly into the drains They prepare food or wash dishes in the back lane Something as simple as the floor or the toilets being dirty The penalties depend on exactly what offence was committed, but the highest goes up to RM100,000 in fine and up to 10 years of prison. And if you’re concerned, there’s another avenue of complaint if no action is taken by your local council - you can further lodge a report with Ministry of Housing and Local Government (KPKT) here. You should lodge a report even for cases when the restaurant operators say “we didn’t mean to” or “it was an accident” because it is their legal duty to ensure that their food is safe. Section 23 of the Food Act 1983 states that if they are found breaking any food laws, operators must prove that they took all reasonable steps to make sure the sale of their food will comply with all legal requirements of the Food Act. [READ MORE - What can you do if you bought spoilt or contaminated food?] Those preventive measures are usually decided upon by the managers or owners of the restaurant, and yes... The manager and owner of the restaurant can be held responsible too Usually, the people responsible for unhygienic practices in the end are the ones in charge of handling the food. But in the case of Sendirian Berhad and Berhad companies, the Food Act 1983 also imposes an extra responsibility on any person who was a director, manager, secretary or anyone of equivalent rank. Section 33A makes those people liable for the offence as well, and they can be found guilty unless they prove that the offence was committed without their knowledge or permission, and that they took all reasonable precautions to prevent the offence. So as an example, unless a restaurant manager can show that he trained his workers in how to handle the kitchen properly and has supervised them to see that they carry it out, the manager can also be held responsible by law if the kitchen is ridden with flies and roaches. Keep the restaurants accountable, by keeping the health officers accountable! You may have seen incidents of unclean restaurants getting closed down by the local council, only to open again not long after, as dirty as ever. While we can’t comment on whether any illegal dealings happened or not, you can help be a part of enforcement by simply calling incidents out - whether it’s a restaurant that hasn’t bothered to clean their toilet in a while, a banana leaf restaurant that washed dishes in potholes, or a restaurant that mysteriously got “closed down” but is back up and operating the very next day. Hold a high standard when it comes to the food served to you and keep those complaints coming. If you’re dissatisfied with health inspection standards, express your opinion so that the government agencies know that this is an area for improvement. From this report on The Star, it looks like MBPJ has been cracking down on dirty restaurants for offences like having rats and cockroaches, using the backlane to wash dishes, and dumping waste water directly into the drains. The Star has also invited the public to take pictures of dirty eateries and send the photos to them for follow-up with the authorities."
"If you sue someone, Malaysian courts can let you raid their house to get evidence Have you ever wanted to sue someone over a bad business deal? Or maybe it was something simple like a breach of contract. So you get yourself all lawyered and hyped up to see that scoundrel in court… And then you realise that all the information and evidence that you need to be able to prove the case lies with...that scoundrel. Obviously he’s not going to cough up the documents that will implicate him if you march over there with a lawsuit in hand and a lawyer in tow. You also can’t sue him yet because the moment he finds out that there is a lawsuit against him, he will just destroy all the necessary documents. It seems like a classic Catch-22 situation – you can’t sue without the information he has, you can’t get the information without suing him. Before you start emo-ing over this unfairness, pause right there. Malaysian law actually can help you with this magnificent thing called an Anton Piller order that allows you to… Seize documents from your opponent! No, seriously. We are not joking. The Anton Piller order which originated from the case of Anton Piller KG v Manufacturing Processes allows you to go into your opponent’s home/office in order to search and seize the documents/evidence that you would need to prove your case. An Anton Piller order is basically a very specific type of injunction which grants you the power to do something. An injunction is a type of court order that either forces your opponent to do something (mandatory) or stops him from doing something (prohibitory). In the case of the Anton Piller, it forces your opponent to open his doors for you (literally). Now that the basics are out of the way, let’s dive into the nitty gritty of the matter. The first thing you need to know is that in order for this order to be effective, your opponent must not know what is going on so the element of stealth and surprise is very important. This is where we look at Order 29r1(2) of the Rules of Court 2012 which tells us that you that an application for an injunction can be made ex parte. “Such application may be made by a notice of application supported by an affidavit and where the case is one of urgency, may be made ex parte.” Ex parte means that the application for this order is done without the presence of the other party, which is different from usual court proceedings which are inter partes (between parties) – meaning that the other party has to be present as well. This ensures that your opponent doesn’t get wind of what you are trying to do and runaway to burn all the evidence in a giant BBQ. However, since this order is pretty badass, there are tons of requirements that you need to comply with. You need to show that your case is worth it This English creation was brought into Malaysia through a local case of Arthur Anderson & Co v Interfood Sdn Bhd and this is also the case that lists down all the requirements you need to fulfil before the court will grant you an Anton Piller order. In short, the requirements are: You need to have a very strong prima facie case There would be a serious effect on you if the court denies your application There is clear evidence that your opponent has the documents you need and would destroy/dispose of them to defeat justice You must give full and frank disclosure of all the facts you have You must give certain undertakings and carry out the order with certain safeguards in place The list above sounds like a load of legal mumbo jumbo but in essence it means that in order for your application to be approved, you need to show that: You have a strong case You would be suffer greatly if the application is denied You can prove that your opponent has the documents and there is a high chance of him destroying it You must be completely honest and tell the court everything You must give a promise to pay damages to your opponent if you are wrong You must carry out the order with certain rules in place If you are curious about what “rules” you have to follow, the case of Computerland Corp v Yew Seng Computers Pte Ltd explains that it is basically to ensure that the order won’t be abused. For example, you can only execute the order during working hours and give your opponent reasonable time to seek legal advice. In the case of Thermosensors Ltd v Hibben, poor Mrs. Hibben was in her nightie when they suddenly showed up at her house demanding to be let in. “The draconian nature of the Anton Piller order could not be over-emphasised. It was therefore imperative that the party seeking it must satisfy the stringent requirements...The Anton Piller order should only be granted if the court was satisfied that there was a real risk of justice being frustrated or thwarted...” – the Singaporean Court of Appeal in Computerland Corp v Yew Seng Computers Pte Ltd Aside from that, you can only take the documents which are necessary for you to prove your case – if you try to use the order to snag a new MacBook Pro for your girlfriend, then you would be in hot soup. You also can’t march over there on your own, demanding blood documents as the order needs to be executed by an independent solicitor. This means that a separate lawyer (other than the one you hired) has to carry out the order to ensure that everything is done above board. If you fail to comply with any of the safeguards or overzealously take more documents/evidence than is needed, the court can revoke your order and force you to return everything that you took from your opponent. But what if you go in there with your guns (read lawyers) blazing but your opponent barricades himself in and refuses to open the door? It’s a Mexican standoff! No, no, it’s actually not because you don’t get to smash down doors and roll in smoke grenades to smoke your opponent out like a badger hunt. If you have allowed your opponent time to seek legal advice but he keeps delaying by saying the documents are with his wife over the sound of papers being shredded, then the case of Lian Keow Sdn Bhd v C Paramjothy helps you out. Lian Keow tells us if the guy refuses to open up and let you in and this is unreasonable, certain actions can be taken against him, including throwing him in jail. Plus, the courts are allowed to draw an adverse inference against your opponent for refusing to open up. This means that your opponent can’t show an unsavoury finger to you when you show up with the order because by doing so, the courts can dish out punishment on him, including tossing him in jail. Well, folks, that is basically a brief overview of what an Anton Piller order is and for you to know that there is no need to despair if you don’t have the information in your hands. However, for the purposes of keeping this article light and not inundating you with tons of legality, the more boring procedural stuff like timelines and service has been omitted so be sure to check in with a lawyer to help you out with this!"
"Dari segi undang-undang, ""pencuri"" Low Yat didapati tidak bersalah kerana... Artikel ini diterjemah dari Bahasa Inggeris. For the English version, click here. Pasti ramai di antara kita yang arif tentang kes “Pencuri Telefon Low Yat”, tetapi bagi yang terperangkap di bawah tempurung ketika itu, kisahnya begini: Pada 11 July 2015, Shahrul Anuar Abdul Aziz yang berumur 22 tahun ketika itu, melawat Techasia Boutique di Plaza Low Yat bersama seorang rakan bagi tujuan memantau telefon pintar. Jurujual di Techasia Boutique kemudiannya mengesyorkan telefon pintar Lenovo kepada Shahrul. Apabila jurujual berpaling badan untuk mendapatkan hadiah percuma yang disertakan dengan pembelian telefon tersebut, Shahrul dikatakan mengambil telefon tersebut lalu melarikan diri ke arah escalator. Ketika dia dikejar, Shahrul terjatuh semasa menuruni eskalator dan ditangkap oleh pekerja kiosk OPPO di tingkat bawah. Kemudian, pada 1 Mac 2018, Mahkamah Rayuan mengugurkan kes dan membebaskan (discharged and acquitted) Shahrul atas sebab teknikal. Pendek kata, Mahkamah Rayuan membebaskan Shahrul. Selain dari hal-hal berkaitan yang terjadi akibat dari kecurian ini – seperti rusuhan kecil sejurus selepas Shahrul ditahan – persoalan yang dibincangkan dalam artikel ini adalah bagaimana dan kenapa mahkamah membebaskan Shahrul. Apa yang menarik di sini adalah dia dibebaskan atas sebab teknikal selepas dia asalnya didapati bersalah dalam makhamah. Mari kita lihat…. Mahkamah yang mendapatinya bersalah Di dalam semua perbicaraan jenayah, pihak pendakwa akan mengemukakan hujah mereka terdahulu (bagi membuktikan bahawa tertuduh bersalah) diikuti pula dengan pihak pembela (bagi membuktikan bahawa tertuduh tidak bersalah). Selepas pihak pendakwa mengemukakan bukti mereka, hakim (Magistret) mengarah Shahrul untuk membela dirinya kerana beliau yakin bahawa pihak pendakwa telah menubuhkan kes prima facie terhadap Shahrul. Prima facie bermakna “atas kemunculan pertama” (“On the face of it”) di mana, pada pemeriksaan pertama, ia cukup untuk Shahrul disabit bersalah. Hakim kemudiannya menerangkan bahawa selepas hujah pihak pendakwa dipertimbangkan, beliau yakin yang Shahrul bersalah, dan jika Shahrul berdiam diri tanpa membela dirinya, maka beliau boleh menyabitkan Shahrul dengan segera. “Oleh yang demikian, di akhir kes pendakwaan, setelah membuat penilaian maksimum ke atas kes pendakwaan, Mahkamah ini memutuskan bahawa Tertuduh telah melakukan kesalahan sepertimana pertuduhan dan wujud keterangan yang sewajarnya (reasonable reasons) Tertuduh untuk menyangkalnya. Seandainya Tertuduh bertindak berdiam diri, maka Mahkamah boleh terus mensabitkan Tertuduh dan menjatuhkan hukuman seperti peruntukan kesalahan pertuduhan.” - Magistrate Nur Aminahtul Mardiah Binti Md Nor, Magistrates Court Kuala Lumpur Di akhir perbicaraan, hakim mendapati Shahrul gagal menimbulkan keraguan yang munasabah terhadap kes pihak pendakwa dan oleh kerana itu dia didapati bersalah. Hakim kemudian menyabitkan dia bersalah dan menjatuhkan hukuman 4 bulan penjara dan denda RM1,000 ke atasnya. Shahrul kemudian mengemukakan rayuan ke Mahkamah Tinggi atas sebab Majistret melakukan salah arah undang-undang tetapi Mahkamah Tinggi menolak rayuan tersebut. Kita tidak akan berbincang perihal rayuan di Mahkamah Tinggi tetapi yang penting di sini, Shahrul kemudiannya merayu kesnya ke Mahkamah Rayuan. Mahkamah yang membebaskannya Pada 1 Mac 2018, Mahkamah Rayuan membuat keputusan untuk membebaskan Shahrul. TETAPI jika hakim yang terdahulu mendapati dia bersalah, kenapa dia dibebaskan? Ini adalah kerana Mahkamah Rayuan mendapati bahawa hakim yang mendapati dia bersalah telah melakukan satu salah arah (misdirection) undang-undang serius yang menyebabkan kesalah laksanaan keadilan (miscarriage of justice) – yang akan diterangkan kemudian. Rata-rata banyak rakyat jelata terkejut dengan keputusan ini kerana mereka menjangkakan bahawa dia akan dihukum kerana tindakannya telah mengakibatkan rusuhan Low Yat – akan tetapi kita perlu maklum bahawa Shahrul tidak terbabit dalam rusuhan tersebut; dia berada dalam tahanan polis ketika rusuhan ini berlaku. Jadi timbul persoalan seperti: apakah sebab teknikal? Mampukah mahkamah membebaskan seseorang atas sebab ini walaupun dia bersalah? Bagi menjawab soalan ini, mari kita lihat maksud di sebalik “salah arah undang-undang”. Kenapa dia dibebaskan? Salah arah undang-undang secara literal bermaksud “salah arah”. Ini berlaku apabila hakim memberikan “arahan yang salah” semasa perbicaraan kes. Ia seperti memandu menggunakan GPS, kalau GPS memberikan “salah arah” anda akan pergi ke tempat yang salah. Dalam kes Low Yat ini, salah arah yang didakwa berlaku oleh Shahrul dan peguamnya adalah di mana keputusan Majistret sepertimana dipetik di atas, Di bawah adalah sebahagian dari petikan yang lebih jelas. “...Mahkamah ini memutuskan bahawa Tertuduh telah melakukan kesalahan sepertimana pertuduhan dan wujud keterangan yang sewajarnya (reasonable reasons) Tertuduh untuk menyangkalnya...” - Magistrate Nur Aminahtul Mardiah Binti Md Nor, Magistrates Court Kuala Lumpur Kesimpulannya, menurut Shahrul dan peguamnya, salah arah berlaku apabila majistret mendapati Shahrul bersalah selepas pihak pendakwa mengemukakan hujah mereka dan sebelum Shahrul sempat membela dirinya. Kenapa hakim tidak boleh menyabitkan Shahrul bersalah selepas pihak pendakwa mengemukakan hujah mereka? Ini ada kaitan dengan satu istilah yang kerap kita dengan di rancangan TV barat, “guilty beyond reasonable doubt”, iaitu “bersalah melampaui keraguan yang munasabah”. Istilah ini juga berkaitan dengan “standard of proof” dalam kes jenayah. Pada dasarnya, dalam kes jenayah, seseorang boleh didapati bersalah JIKA dia didapati bersalah melampaui keraguan munasabah. Satu lagi fakta menarik adalah dalam kes Balachandran v PP, amat jelas bahawa bersalah melampaui keraguan munasabah boleh berlaku di mana-mana senario di bawah: Di penghujung perbicaraan, selepas pihak pendakwa dan pihak pembela telah mengemukakan hujah mereka dan semua bukti telah dipertimbangkan Di penghujung hujah pihak pendakwa (boleh dirujuk sebagai titik tengah perbicaraan); apabila hakim mendapati bahawa satu kes prima facie telah ditubuhkan dan tertuduh berdiam diri (memilih untuk tidak membela dirinya) Jika kita ingin mengkaji bagaimana seseorang itu bersalah melampaui keraguan munasabah dengan adanya kes prima facie, kita boleh lihat garis panduan yang diberi oleh hakim dalam kes Pendakwa Raya v Mohd Radzi bin Abdul Bakar. Garis panduan ini menyatakan bahawa di penghujung hujah pendakwa raya, hakim perlu memutuskan jika beliau ingin menyabit si tertuduh jika si tertuduh membuat keputusan untuk mendiamkan diri apabila disuruh untuk membela dirinya. Jika ya, maka kes prima facie telah ditubuhkan. Mahkamah Rayuan telah mendapati bahawa salah arah undang-undang berlaku apabila hakim Majistret mendapati bahawa Shahrul bersalah sebelum dia sempat membela dirinya. Ini bercanggah dengan undang-undang dan oleh sebab itu, Mahkamah Rayuan membuat keputusan untuk membebaskan Shahrul atas sebab teknikal. Apa akan terjadi selepas dia dibebaskan? Jika ada salah arah undang-undang berlaku, mahkamah boleh mengarahkan kes dibicara semula. Ini berikutan dengan seksyen 60 Akta Mahkamah Kehakiman 1964: “…boleh memerintahkan perbicaraan semula atau boleh menghantar balik perkara itu bersama-sama pendapat Mahkamah Rayuan mengenainya kepada mahkamah perbicaraan…” Akan tetapi, setelah Mahkamah Rayuan membuat keputusan untuk mengugurkan kes dan membebaskan Shahrul, kes ini tidak boleh dibicara semula. Selain itu, menurut prinsip double jeopardy, Shahrul tidak boleh didakwa atas kesalahan yang sama kerana dia telahpun dibebaskan dari tuduhan. Dalam erti kata yang lain, keputusan muktamad telah dibuat dan kes ini kini telah ditutup. Sepertimana di dalam kes Abou Sylla v PP, mahkamah biasanya akan mengugurkan sabitan jika terdapat salah arah undang-undang. Hanya kes-kes luar biasa yang boleh disabitkan walaupun terdapat salah arah undang-undang. Pada kebiasaannya, rakyat Malaysia akan menunjukkan rasa tidak puas hati mereka apabila pesalah dibebaskan walaupun – pada permukaannya – terdapat bukti sahih yang menunjukkan dia bersalah. Tetapi perlu kita tahu yang dalam undang-undang, ada tatacara yang perlu diikuti untuk memastikan bahawa tertuduh diberi perbicaraan yang adil. Jika tatacara ini tidak dipatuhi atau jika terdapat salah arah undang-undang, maka tertuduh boleh dibebaskan walaupun ada bukti yang kukuh. [Bacaan lanjut: Some Malaysians are released after getting arrested for a crime. Here’s why]"
"What items are duty-free at Malaysian customs, and what happens if you exceed the limit? Unless you’re a frequent traveller, you might have come back from a trip with a borderline amount of dutiable goods before (“dutiable” meaning you have to pay customs charges on them). The experience probably involved last minute anxiety at the airport wondering if your items were going to get confiscated, or if you would have to pay a big fine. This was exactly what this writer faced on his last trip, which is why he’s writing this piece to make sure you don’t have to face the same thing. You probably know that you must pay a duty charge on overseas products before you can bring them into Malaysia. You also know that some items can be bought duty-free, most notably, alcohol and tobacco. But you might not have known exactly how much is allowed. Then, there’s also the question of what happens if you’re bringing back too many goods. Do your items actually get confiscated? What charges do you have to pay otherwise? First, let’s get to the list of items that are duty-free to bring into Malaysia. Your personal belongings are duty-free This may come across as absurd and crazy to you, but without an exemption on your personal belongings, you would be liable to pay customs duty on your clothes. This is because anyone who brings in items from outside Malaysia is considered an “importer”. We usually associate importing with bringing in large containers of goods to be sold for commercial purposes. But according to the legal definition in Section 2 of the Customs Act 1967, “import” means: “...to bring or cause to be brought into Malaysia by land, sea or air.” Although you’re technically an importer, you usually don’t pay import taxes because under the Customs Duties (Exemption) Order 2013, every person entering Malaysia is exempted from paying duty on: Any portable objects you use on a regular basis, but excludes household items (this means whatever you packed as luggage for your trip is exempted) 1 litre of alcoholic beverages Up to 225 grams of tobacco (or equivalent to 200 cigarettes) Up to 3 pieces of new wearing apparels (does not include clothes you’re already using) 1 new pair of footwear Food preparations up to RM75 in value 1 portable electric appliance for personal care and hygiene All other goods except alcohol, tobacco, tyres, and tubes up to RM400 in value (RM500 if they are goods from Labuan, Langkawi, or Tioman) If you’re not bringing in any items exceeding the above limits, you don’t have to pay any duty charges. Which brings us to the next question: what happens if you’ve exceeded these duty-free limits? You just pay customs duty on those items Contrary to some worries you may have had, your goods will not get confiscated just because you’ve exceeded the exemptions above (assuming you’re not bringing in illegal items like drugs in the first place). All that will happen is that you’ll get charged customs duty on the excess items and amounts. The exact rate you pay usually depends on the type of item, these rates are specified under the Customs Duties Order 2017. It’s contains lots of tables listing how different types of items are charged different rates in Malaysia. They are pretty long and very specific on how each type of item is charged so we won’t cover them in detail here, but you can find the complete list at the link if you’re interested to know what bringing certain items to Malaysia costs. But not to worry, you probably don’t have to pay that much because... Travelling Malaysians (and foreigners) only pay 10% There’s a specific provision in the Customs Duties Order 2017 for duties payable by civilian travellers (basically as long as you’re not bringing the items in for business purposes): Paragraph 2(3) of the Customs Duties Order 2017 “In the case of goods subject to import duty imported on or with any person entering Malaysia or in the baggage of such person and is intended for non-commercial use (except motor vehicles, alcoholic beverages, spirits, tobacco and cigarettes) a customs duty at a flat rate of ten percent ad valorem shall be levied on and paid by the importer on such goods.” There are a few things this provision boils down to: Tourists are also “importers” since they are bringing in items from outside Malaysia. If you’re bringing in anything for non-commercial use, you only get charged 10% customs duty on anything that isn’t a motor vehicle, an alcoholic beverage, or tobacco (but they might qualify as duty-free) The exceptions mentioned are chargeable at their prevailing duty rates. Let’s take an example: Let’s say you’re travelling alone (1 person) and you bring in 3 litres of alcohol. You’re only exempted from customs duty on 1 litre of alcohol. So you’ll pay duty on the remaining 2 litres of alcohol according to the rate stated in the Customs Duties Order 2017. That being said, you definitely don’t want to avoid paying the customs duty - it’s a criminal offence. It’s considered smuggling Trying to avoid paying customs duty on any dutiable items you’re bringing into Malaysia falls under the definition of “smuggling” under Section 135 of the Customs Act 1967, and is a criminal offence. You are better off declaring your goods instead of trying to hide them in hopes of avoiding a bit of duty charges because well, it’s not worth getting fined and going to jail for. A first conviction for smuggling will earn you a fine of between 10-20 times the value of the customs duty, and/or up to 3 years of prison; repeat offences will get you a fine of 20-40 times the value of customs duty, and/or up to 5 years of prison. If the amount of customs duty cannot be ascertained, the punishment becomes a fine up to RM500,000, and/or up to 5 years of prison. If you need a quick reference for what items are duty-free and what you need to declare when coming back to Malaysia, the Royal Malaysian Customs Department has a brief guideline written here for tourists on Malaysia’s customs rules. These rules are a bit outdated, and states the customs tax at 30%, which is based on the old Customs Duties Order from 2012. This has since been changed to only 10% as we mentioned earlier."
"If a freak accident makes you break a contract, can you get sued under M'sian law? So here’s a scenario: You’ve gotten wind that your favourite artist is coming to town to perform in a one-night only concert. You bite the bullet to purchase front row VVIP seats. On the night of the concert however, the concert venue burns down, due to no fault of your own or the concert organisers’. And now you’re among the hundreds of dejected would-be concert goers demanding for a refund, with the concert organiser rightly denying responsibility of the fire. But wait, what does a cancelled concert got to do with contracts? Well legally speaking, the concert organiser sought to present that artist at a venue on a particular night. You’ve then spent some money to purchase a ticket from the concert organiser as a concert goer. At that point, you’ve essentially entered into a contract with the concert organiser. The concert organiser is obliged to present that artist at the venue on the particular night in order to fulfill the terms of that contract. [READ MORE: Can you get a refund if an event gets cancelled?] The scenario illustrates two things to keep in mind – the first that contracts can are not limited to that paper thing that you sign and, that subsequent events can sometimes make a contract impossible to carry out. What are the remedies if you ever find yourself in such a tricky situation? It starts with frustration FUUUUUUUUUUU-rustration. Image via GIPHY. Going into the theory, these situations are what lawyers usually call ‘frustrated contracts’. You’ll be frustrated too if you couldn’t see your favourite artist in action, but that’s not what we’re talking about here. ‘Frustration’ is a term used in contract law to describe contracts that have become impossible to carry out as per Section 57(2) of the Contracts Act 1950 (CA 1950): (2) A contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Basically, this means that after a valid contract has been entered into, if a subsequent event makes the performance of the contract impossible or illegal, that contract is said to be ‘frustrated’. The section doesn’t use the word ‘frustrated’ as the term is derived from Ye Olde England, but if your lawyer ever mentions it, you now know he’s more likely referring to your contract and not your feelings. As a side note, ‘Performance’ here means the ability of parties to fulfill their end of the contract. For example, if you contract Mr. Kerry Fo Mi to transport your goods from one point to another, Mr. Kerry Fo Mi will only have performed the contract when he has successfully transported your goods from that pre-determined point to the other. How would I know if the contract is frustrated? Image via GIPHY. Let’s use a different non-concert example here: You enter into an agreement with a school van uncle named Encik Laju to fetch your kid to school for the entire year. Here are a few conditions that – if satisfied – would make for a frustrated contract, so we’ll list them below with scenarios involving Encik Laju. 1. The performance of the contract must be impossible or unlawful. Encik Laju realises that your agreement is not commercially viable because he can get more kids from another neighbourhood (more money), so he leaves your kid in the dust. A contract does not automatically become frustrated just because it’s not commercially viable, so En. Laju cannot refuse to send your kid to school (break the agreement) just because he can earn more money elsewhere. However, if Encik Laju loses a leg in a car accident and is unable to drive for the rest of his life, performance of the contract by him is impossible and therefore frustrated. On that note... 2. Impossibility or unlawfulness must happen AFTER the contract was formed. On the first day of school, En. Laju doesn’t show up. You then find out that En. Laju lost a leg in an accident 5 years ago and hasn’t been able to drive since, something he didn’t tell you when you entered the arrangement. So here’s the difference – if En. Laju got into the accident after the agreement, then it’s a ‘subsequent event’ that made the performance of the contract impossible. However, if Encik Laju was already incapacitated and cannot carry out his duties as a driver even before you made the agreement, then the contract is NOT frustrated, and is more likely fraud or misrepresentation (Encik Laju claiming to be able to drive when he can’t drive) but that’s for another day. For more on misrepresentation: [READ MORE: What can you do if you get cheated shopping online in Malaysia?] 3. The frustration must not be self-induced. Encik Laju can’t pick your kid up because he sold off his van to finance his gambling debt. En. Laju cannot claim that the contract is frustrated because he decided to sell off his van to pay off debt, as it’s a decision made on his own accord (self-induced). This would be different if En. Laju got into an accident whereby the van was completely totalled. Another way to determine whether or not a contract is frustrated is by looking to the Federal Court case of Ramli bin Zakaria & Ors v Government of Malaysia [1982] 2 MLJ 257. The case basically said: “... frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract” “It” here means contractual obligation. “Radically different” were the words used by the Federal Court, so if the contractual obligation is radically different from that which was intended originally, then the contract can be considered ‘frustrated’ too. A large sinkhole suddenly appears on the only entry and exit route to your house. So now En. Laju has to make the perilous and time-consuming journey by foot with makeshift bridges over the sinkhole to take your kid from home to school. En. Laju’s obligation can be said to be radically different from the simpler 2 kilometres pick-and-drop trip that was originally agreed to. This is a subjective test though, so what is radically different would depend on the judge’s interpretation of the facts (the specific circumstances) of a particular case. Ok, so now we have a frustrated contract. What happens next? Following from Section 57(2) Contracts Act 1950 mentioned earlier, a frustrated contract becomes void. The void you’re looking for is found in Section 2(g) CA 1950, which says that a void contract is an agreement not enforceable by law. At this point, both parties are discharged from their contractual obligations. Discharge here means to be allowed to leave, to be let go, or in other words, to be free. What happens to any money that you’ve already spent? Well, there are four possible solutions based on the circumstances: If payments were made in advance If you paid Encik Laju in advance for the whole school year and he loses his leg without having made a single trip to send your kid to school, he would have to refund the payment made to him. For the sums paid before the time the contract became void, you and the other party have to refund everything paid or given in the contract. This is found in Section 66 CA 1950 (in part): 66. When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under the agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it. If payments were made in stages If you paid Encik Laju on a monthly basis and he loses his leg 5 months into the school year, you don’t need to pay for the remaining months Any amount that you’ve agreed to pay before the contract became void is no longer payable. In other words, you don’t need to continue payment for the remaining time stipulated in the contract. While Section 66 CA addresses this, Section 15(2) of the Civil Law Act 1956 (CLA 1956) also has a part that specifically addresses frustrated contracts in this regard: 15. (2) All sums paid or payable to any party in pursuance of the contract before the time when the parties were so discharged (in this Act referred to as “the time of discharge”) shall, in the case of sums so paid, be recoverable from him as money received by him for the use of the party by whom the sums were paid, and, in the case of sums so payable, cease to be payable: If the other party already fulfilled a portion of the contract If Encik Laju lost his leg 5 months into the school year, a reasonable sum should be paid to him for the 5 months service You’ll still need to pay for things that cannot be restored or parts of the contract that was already fulfilled as you’ve already benefitted from them. In the example above, En. Laju cannot “unsend” your kid to school for 5 months, so it’s only fair that you pay him for that portion of the agreement. In cases where calculating the amount is less straightforward, a court will decide on a reasonable amount. This is also stated in the proviso to Section 15(2) CLA 1956: Provided that, if the party to whom the sums were so paid or payable incurred expenses before the time of discharge in, or for the purpose of, the performance of the contract, the Court may, if it considers if just to do so having regard to all the circumstances of the case, allow him to retain or, as the case may be, recover the whole or any part of the sums so paid or payable, not being an amount in excess of the expenses so incurred. If you (or the other party) spent money in advance You agreed to spend money building a driveway in your backyard because En. Laju didn’t want to make a big turn to pick your kid up from the front of the house. You may be able to claim this expense from him OR Encik Laju agreed to build a special ramp in his van because your kid is in a wheelchair. He may be able to claim this expense from you. Basically, any party who has spent some money in carrying out their contractual obligations can claim these expenses from the other side, if the court thinks it’s fair. This is found in Section 15(3) CLA 1956 (in part): (3) Where any party to the contract has, by reason of anything done by any other party thereto in, or for the purpose of, the performance of the contract, obtained a valuable benefit ... before the time of the discharge, there shall be recoverable from him by the said other party such sum ... Again, the court will usually decide on the amount but it won’t be more than what was actually spent. But it’s really not that common… Considering the conditions which need to be met, frustrated contracts actually don’t happen too often. This is because the law on frustration wants people to follow through on their promises and wants to prevent people from looking for an easy way out (i.e. saying that the contract cannot be carried out) when the promises become hard to follow through. Frustration is only meant to cater to genuine events that make it impossible for those involved to carry out their obligations. If this happens to you though, it makes good sense to deal with the other party outside of court first since it’s neither yours nor the other parties’ fault; either out of goodwill or to avoid lengthy court proceedings. Regardless, it’s always best to consult a lawyer first."
"5 things Malaysian employers pay on top of your monthly salary Have you ever wondered what it would be like to open your own business? This comes with the freedom to do what you want, the way you want to, but it obviously comes with having to take on the responsibilities that an employer handles. There are lots of challenges that you might not be sure how to tackle because well, no one teaches you these things in school. The biggest challenge people usually think of is capital (although this case study tells us otherwise). You need to pay rent, overhead costs, employees’ salaries… But if you’ve never been an employer, you might not have known that salaries are not all that a boss pays to hire people. There’s definitely the smaller expenses like paying a lawyer to draft the employment contract and getting a team to manage payroll, but there are also recurring expenses that come from hiring employees. You most likely already know about at least 2 of them (probably EPF and SOCSO,right?), but might not have known some of the details behind how they work. With that, here are 5 recurring payments your boss is probably making on top of your monthly salary. 1. SOCSO - Social Security Organization Also known as PERKESO in Malay (Pertubuhan Keselamatan Sosial Malaysia), SOCSO is a government agency set up under the Employees’ Social Security Act 1969 that runs a social security fund for Malaysians. There are two main schemes managed by SOCSO. The first is the Employment Injury Scheme, which is basically an insurance fund for all Malaysians if and when workplace accidents occur. It also covers occupational diseases, like loss of hearing from loud noises at the workplace. The second scheme is the Invalidity Scheme, which provides benefits for employees who suffer from total or permanent disability, making them no longer capable of earning a living. Unlike the Employment Injury Scheme, this covers incidents that aren’t related to your job as well. Unless you fall under one of the rare exceptions, you’ll see your SOCSO contribution as a deduction on your payslips each month, and the law requires your employer to contribute as well. The contributions are based upon a fixed table based on how much you earn, which increases with your salary up till you’re earning RM4,000. For example, if you earn between RM2,400 and RM2,500, you have to contribute RM12.25 every month. But your employer has to contribute much more (about 1.75%) at RM42.85, plus an extra RM30.60 towards the Employment Injury Scheme in particular. If you’re doing a risky job for a company, it makes sense for them to take some responsibility if you get injured. You can find a complete table of the contribution amounts at SOCSO’s website. 2. EPF - Employees Provident Fund (duh!) The most obvious of the contributions, but it’s worth mentioning. You probably already know about EPF even if you don’t know the details about how it works. It’s a fund you contribute to that makes investments to grow your money, which will sustain you after you retire. Looking at your payslip, you’ll see that you contribute 11% of your salary every month, which gets deducted from your gross pay (bye bye 11% straight away). We’ve all probably wished that we could keep the 11% from time to time, but hey, at least it’s tax deductible. If you’re not that familiar with our tax reliefs, you’ll want to know that you can get relief on up to RM6,000 per year for contributions to your EPF and life insurance. And there’s another RM3,000 in relief if you contribute to a registered Private Retirement Scheme (PRS). [READ MORE - 5 sources of income that are tax free in Malaysia] What you might not keep in mind is that your boss also has to contribute to your EPF account by law. Depending on how much you earn, your employer pays an extra 13% of your gross salary to your EPF, making your “real” salary actually 13% higher than what you see. If you earn more than RM5,000 per month, then your employer pays 12% instead. You might never see that money until you turn 55, but it’s still yours later on. Not to mention, it’s a real expense for your boss that they have to pay right away - which might be something to keep in mind to help you negotiate your salary in future. 3. EIS - Employment Insurance System If you didn’t hear about it when the law came into effect, you might have been one of the people wondering “why my pay suddenly kena cut?” in January 2018. Your pay technically didn’t get cut, but you were obligated to contribute to this relatively new scheme. We covered how it works in our earlier article: [READ MORE - Malaysia's new insurance system automatically deducts your salary but...for what?] Basically, it’s a scheme that covers people who have lost their jobs through no fault of their own (we cover the exact list in our article above as well). This includes situations where your boss fires you for no good reason, if colleagues make life really difficult for you, and even when you are threatened or sexually harassed. [READ MORE - My boss just fired me for no reason, what can I do now?] Both you and your employer have to pay 0.2% of your salary each for the EIS. The two main benefits employees get out of the EIS are: i) Career counselling and job training This is poised to help the newly unemployed find new work, and even transition into a new industry if they have to. ii) Unemployment payouts Employees in Malaysia will be getting a portion of their salary for up to 6 months after losing their job. It’s meant to help stabilize people’s finances while they look for work, so the time limitation prevents abuse by people who would rather not look for a job. The exact rates are in the Third Schedule of the Employment Insurance System Act 2017. If you ever need to make an EIS claim, you can make it through SOCSO’s dedicated website for the EIS over here. 4. HRDF - Human Resource Development Fund Certain companies in manufacturing, service, and mining need to pay another levy under the Pembangunan Sumber Manusia Berhad Act 2001, which manages the Human Resource Development Fund (HRDF) of Malaysia. They facilitate training programs to upgrade worker skills in Malaysia. The law behind their formation basically requires companies to commit some money to training their employees, by paying 1% of their employees’ salaries to the fund, which they can use in the form of training grants to send their employees to training programs that benefit their industry. For example, a hotel company who has paid money to the HRDF can send their employees to a workshop where they learn about improving the hotel’s operations. But a computer chip factory might get their workers to learn about avoiding workplace accidents. The training programs must come from training providers registered with the HRDF. If you work in one of the above industries, chances are your employer is a registered company under the HRDF, and you might want to ask about training programs if you haven’t been sent for any. The exact criteria are quite specific so you may have to check if your company qualifies in the first place (usually very small companies are not required to take part). There’s a complete (and LONG) list of companies specified in the First Schedule of the Pembangunan Sumber Manusia Berhad Act. 5. Professional Insurance In any profession, accidents and mistakes happen from time to time - whether it’s a valet who accidentally crashes a customer’s car, or as simple as people falling from a wet floor. But who’s responsible for them? Your boss. [READ MORE - Your boss is responsible because of a legal principle called “vicarious liability”] Even if you’re the most careful and detail-oriented person in the world, accidents are sometimes simply unavoidable. Freak accidents can happen and we may never anticipate them perfectly - but it helps to be prepared. This is why companies in certain industries like medicine, law, advertising, and architecture may purchase what is called professional indemnity insurance to cover any unforeseen losses that might occur - just in case. As an example, back in 2009 the $35 million rebranding of Tropicana (the popular orange juice from PepsiCo) actually caused a 20% drop in sales instead of having a positive effect on the brand. We don’t actually know what happened behind the scenes for this incident, but sometimes, the company responsible has to foot the costs. And if some employees were found to be at fault, they can actually be held responsible for the losses personally. The cost of professional insurance varies from industry to industry, and is usually determined by the insurance company. There’s more behind what’s written on your payslip Those were just 5 things employers need to foot for their employees in Malaysia. If you’ve ever heard of any other types, do let us know! It’s doesn’t always feel good for companies and employees to have to make all these extra payments, but it’s a way to create some form of assurance that you’ll be taken care of throughout and after your career. A few hundred Ringgit a month does feel like a lot, but it definitely beats facing a big problem later on with not enough resources to help ourselves."
"Bolehkah PDRM menjalankan pemeriksaan tubuh ke atas anda tanpa waran? Cuba bayangkan senario berikut – anda memandu bersama kawan-kawan anda, mencari kelibat McNuggets di tengah malam buta. Tiba-tiba, kelihatan lampu biru berkelip di hadapan anda. Rupa-rupanya ada sekatan jalan polis dan anda mulalah memperlahankan kenderaan anda. Anda (dengan muka selamba) berharap yang abang polis akan melambai anda untuk meneruskan perjalanan tetapi sebaliknya dia mengisyaratkan anda berhenti di tepi jalan. Apa lagi, dengan rasa terperanjat bercampur gelisah anda menurut isyaratnya dan mula menurunkan cermin sisi kereta. Polis kemudiannya mengarah anda dan kawan-kawan anda turun dari kenderaan. Kepala otak anda mula bercelaru dan anda dengan rasa teragak-agak bertanya kenapa. Pihak polis menjawab yang mereka ingin melakukan pemeriksaan tubuh ke atas anda dan kawan-kawan anda. Di sini timbulnya 4 soalan yang lazim ditanya berkenaan pemeriksaan tubuh: Bolehkan pihak PDM berbuat demikian? Teman wanita anda ada bersama-sama anda di dalam kereta, bolehkah pegawai polis lelaki menjalankan pemeriksaan tubuh ke atasnya? Bolehkan pihak PDRM menjalankan pemeriksaan tubuh di tempat di mana anda ditahan. Adakan waran diperlukan? Kita lihat satu perkara penting dahulu.... Pihak PDRM memang boleh menjalankan pemeriksaan tubuh Di bawah Seksyen 20 Kanun Tatacara Jenayah (Tiada versi BM rasmi), pihak polis boleh melakukan pemeriksaan tubuh apabila anda ditahan. Anda mungkin terfikir – bagaimana pemeriksaan dilakukan di sekatan jalan raya walaupun anda tidak ditahan? Sebenarnya, jika dilihat secara teknikal, sebaik sahaja pegawai polis memegang ataupun mengurung anda, tahanan telah dibuat oleh mereka. Anda boleh membaca prosedur membuat tahanan di sini tetapi ini boleh juga diterangkan melalui contoh di bawah: Ali diisyaratkan untuk berhenti di tepi jalan semasa sekatan jalan raya polis Ali diarah untuk keluar dari kenderaan dan polis melakukan pemeriksaan tubuh ke atasnya Dalam masa itu, Ali berada di bawah tahanan polis dan tidak boleh melarikan diri Selain itu, jika anda berada di lingkungan kawasan yang sedang digeledah di bawah waran geledah polis, mereka boleh melakukan pemeriksaan tubuh ke atas anda jika mereka mengesyaki anda menyembunyikan barang yang mereka cari. Ini terlingkung di bawah seksyen 17 yang membolehkan pihak polis menahan anda sehingga siasatan mereka selesai. Mungkin konsep ini sukar difahami kerana ia bergantung kepada banyak unsur teknikal dan siasatan dan penahanan berlaku pada masa yang sama, tetapi rumusannya, pihak PDRM boleh menjalankan pemeriksaan tubuh. Seksyen 17 dan 20 hanya menyatakan bahawa polis boleh menjalankan pemeriksaan tubuh, namun tatacara pengendalian pemeriksaan tubuh digariskan di bawah Jadual Keempat Kanun Tatacara Jenayah. Walaupun PDRM tidak memerlukan waran untuk menjalankan pemeriksaan tubuh ke atas anda, pemeriksaan yang lebih dari pemeriksaan pakaian luaran (pat down search) harus mendapat kebenaran dari pegawai polis berpangkat tinggi. Ini akan diterangkan dengan lebih lanjut di bawah. Selain dari proses penahanan yang perlu dilakukan terlebih dahulu sebelum pemeriksaan boleh dibuat, Jadual Keempat juga menggariskan beberapa panduan tambahan.... Pemeriksaan harus dilakukan berasaskan matlamat tertentu Bahagian 1 Jadual Keempat menerangkan bahawa pemeriksaan badan hanya boleh dilakukan jika ia tertakluk di bawah mana-mana matlamat yang berikut: Untuk mendapatkan bukti kesalahan yang mengakibatkan penahanan anda Untuk merampas barangan larangan ataupun barangan yang berkaitan dengan sebab anda ditahan Untuk memantau/membuktikan/mengelakkan pelupusan bukti berkaitan Selain dari matlamat di atas, Bahagian 2 Jadual Keempat juga menggariskan tingkah laku am pegawai semasa menjalankan pemeriksaan tubuh. Ada 9 tingkah laku am yang harus dipatuhi (anda boleh rujuk tingkah laku ini dengan sendiri) tetapi rumusannya pegawai polis harus melakukannya dengan cara profesional dan menitikberatkan maruah anda, terutamanya kesensitifan agama, budaya dan ciri-ciri fizikal, psikologi, kesihatan dan mental. Seksyen 19(2) KPJ juga menggariskan bahawa jika seorang wanita terlibat, pemeriksaan tubuh mesti dilakukan oleh pegawai polis wanita dengan menitikberatkan kesopanan. Walaupun kesemua yang diterangkan di atas nampak normal, harus kita ingat bahawa... Ada 4 jenis pemeriksaan tubuh yang boleh dilakukan oleh pihak polis Ini boleh dilihat dari segi pemeriksaan kategori biasa, sederhana, pakar dan tahap gaban kerana keperincian pemeriksaan yang terlibat di setiap tahap. Mari kita lihat setiap tahap pemeriksaan dan peraturan tambahan yang terlibat dalam setiap pemeriksaan ini. Ada beberapa tatacara am yang dikongsi oleh kesemua 4 jenis pemeriksaan. Salah satunya adalah selepas setiap pemeriksaan, pegawai polis mesti menyediakan senarai barang-barang yang diambil dari anda semasa pemeriksaan dibuat, dan anda harus menandatangani dan menerima satu salinan senarai tersebut. Di samping itu, pemeriksaan ini boleh dilakukan jika anda disyaki menyembunyikan senjata/bukti/barang larangan semasa tahanan dibuat ataupun sebelum memasuki lokap/pusat tahanan. Pemeriksaan pakaian luaran (pat down search) Kita mungkin paling arif dengan pemeriksaan pakaian luaran (pat down search), di mana pegawai polis memeriksa badan anda yang dalam keadaan berpakaian dengan menepuk badan dari atas ke bawah. Ini tidak memerlukan apa-apa jenis kebenaran dan mana-mana pegawai boleh melakukan pemeriksaan ini. Ada 12 tatacara yang harus dituruti oleh pegawai polis semasa melakukan pemeriksaan ini dan yang menariknya adalah: Pegawai polis tidak boleh menyentuh bahagian sulit anda tetapi boleh melarikan tangan mereka di atas punggung dan di bawah bahagian buah dada Pegawai polis harus bertanya jika anda mempunyai barang-barang yang boleh mencederakan pegawai itu sebelum pemeriksaan dimulakan Pegawai polis harus meminta anda mengeluarkan barang peribadi daripada poket dan meletakkannya di tempat yang boleh dilihat oleh pegawai berkenaan Pemeriksaan tanpa pakaian (Strip search) Pemeriksaan tanpa pakaian melibatkan penanggalan sebahagian ataupun kesemua pakaian semasa pemeriksaan, namun anda tidak boleh bertelanjang bulat sepanjang pemeriksaan jenis ini. Pegawai polis mesti membenarkan anda mengenakan pakaian di bahagian atas badan sebelum memulakan pemeriksaan di bahagian bawah badan. Pemeriksaan ini tidak boleh dilakukan tanpa kebenaran pegawai yang berpangkat lebih tinggi dari Inspektor. Dalam kes pemeriksaan tanpa pakaian oleh agensi penguatkuasaan yang lain pula, ini memerlukan kebenaran dari pegawai yang berpangkat Inspektor dan ke atas. Ada 14 tatacara yang harus dituruti oleh pegawai polis semasa melakukan pemeriksaan ini dan yang menariknya adalah: Pemeriksaan mesti dilakukan di dalam bilik berasingan yang tidak mengandungi apa-apa jenis alat rakaman. Hanya anda dan dua anggota polis yang dibenarkan di dalam bilik ini Pakaian yang ditanggalkan mesti diperiksa secara menyeluruh di hadapan anda Jika anda seorang wanita, kebenaran harus diberi oleh anda jika pegawai polis ingin mengangkat dan menjarakkan buah dada anda untuk pemeriksaan dari semua bahagian. Jika tubuh anda bersaiz besar, kebenaran harus diberi oleh anda jika pegawai polis ingin mengangkat lipatan kulit anda untuk pemeriksaan Sentuhan yang minimal harus diberi terhadap bahagian sulit badan anda. Pemeriksaan sulit (Intimate search) Pemeriksaan dalaman pula melibatkan bahagian dalaman badan (selain dari mulut, hidung dan telinga). Lebih tepat lagi, ia melibatkan bahagian...em...dubur dan rongga faraj (vaginal cavities). Untuk pemeriksaan ini, peraturan yang sama seperti tidak boleh bertelanjang bulat dan kebenaran dari pegawai berpangkat sekurang-kurangnya Penolong Penguasa Polis (ASP) diperlukan. Aspek yang penting di sini adalah kaedah batuk dan mencangkung, di mana pegawai polis akan mengarahkan anda menanggalkan pakaian di bahagian bawah tubuh anda dan mencangkung di atas cermin, dan batuk dengan mendalam tidak lebih dari 10 kali. Ini bertujuan untuk mengesan apa-apa barangan yang disembunyikan di dalam lubang dubur/rongga faraj dan kaedah mencangkung dan batuk ini akan mengeluarkan barangan ini. Jika ada barangan asing terkeluar semasa kaedah ini digunakan, pegawai polis tidak boleh dengan apa cara lain sekalipun mengeluarkan objek ini sepenuhnya. Pendek kata, mereka tidak boleh menarik keluar objek ini. Dan jika pegawai polis berasa bahawa anda tidak boleh mencangkung atas sebab kesihatan atau jika anda mengandung, anda tidak perlu mencangkung. Selain dari garis panduan tambahan ini, garis panduan yang tertera untuk pemeriksaan tanpa pakaian harus dituruti di sini. Pemeriksaan dalaman (Intrusive search) Pemeriksaan dalaman merupakan pemeriksaan untuk mengesan objek yang tersembunyi di dalam badan. Bezanya dengan pemeriksaan sulit adalah sebarang barang yang dijumpai boleh diambil terus dari badan anda. Ini hanya boleh dilakukan dengan kebenaran dari Ketua Polis Daerah (OCPD) ataupun pegawai yang bersamaan pangkat jika pemeriksaan dilakukan oleh agensi penguatkuasaan yang lain dan pemeriksaan ini hanya boleh dilakukan di hospital oleh seorang Pegawai Perubatan atau Pegawai Perubatan Kerajaan. Seorang pegawai polis yang sama jantina dengan anda akan turut bersama dalam pemeriksaan ini untuk tujuan mengambil sebarang objek yang ditemui di dalam badan anda. Inilah 4 jenis pemeriksaan badan yang boleh dilakukan ke atas anda. Jika anda rasa sukar untuk mengingati kesemua tatacara dan garis panduan ini, satu perkara penting yang boleh membantu anda adalah.... Buku Merah, buku maha sakti! Badan Peguam Malaysia telah mengeluarkan satu buku panduan dalam bahasa Melayu dan Inggeris yang mudah difahami untuk membantu anda mempertahankan hak asas anda jika anda ditahan oleh polis. Anda boleh muat turun buku tersebut di sini. Selain itu jika anda perlukan bantuan guaman tetapi tidak mampu berbuat demikian, Malaysia menawarkan tiga jenis bantuan yang berlainan kepada anda. Sila baca mengenainya di sini. Akhir kata, bertenang jika anda ditahan oleh pihak polis dan pertahankan hak anda dengan penuh sopan santun tetapi tegas."
"Bagaimanakah anda boleh mengenal pasti barang farmasi dan kosmetik yang selamat digunakan di Malaysia? Artikel ini diterjemahkan dari Bahasa Inggeris. Click here for the English version. Pernahkah anda terbaca siaran Facebook dari rakan rakan anda yang mengatakan bahawa, “KINI JERAWAT MUKA BOLEH SEMBUH DENGAN SEKELIP MATA DENGAN SATU LANGKAH YANG MUDAH! SUNGGUH MUDAH DENGAN JENAMA XX. GUNAKAN SEKALI SEHARI DAN LIHAT PERUBAHANNYA DALAM 3 HARI. HUBUNGI SAYA UNTUK MAKLUMAT LANJUT. #JENAMAXXTERBAIK #TERBAIK” Jika ya, selamat datang ke dunia suplemen dan kosmetik. Cuma di sini suplemen atau kosmetik yang diiklankan adalah dari jenis yang kurang ternama dan yang kebanyakannya dipasarkan melalui laman sosial sahaja. Sebagai contoh, sebuah kedai kosmetik yang baru dibuka dengan nama Sefarra telah dituduh meniru jenama terkenal, Sephora dan menjual kosmetik tiruan. Mungkin kita menjangka iklan untuk suplemen dan ubat yang disyorkan oleh doctor dan ahli farmasi bertauliah, tetapi sebaliknya, iklan yang kita bertembung online pula berunsurkan ""ubat kuat lelaki"". Selain itu, bulan lalu, pihak polis telah menahan sekumpulan adik beradik di Pulau Pinang dan merampas ubat-ubatan palsu seberat 18kg milik mereka. Persoalannya, https://www.nst.com.my/news/crime-courts/2017/09/283692/brother-and-sister-team-busted-operating-ecstasy-lab-penang Sebagai langkah berjaga jaga, lebih baik jika kita hanya menggunakan barangan yang terkenal dan sudah sedia lama di pasaran seperti produk-produk keluaran Dr. Vida. Tetapi tahukah anda bahawa sesetengah produk Dr. Vida telah diharamkan oleh Kementerian Kesihatan atas sebab keselamatan konsumer sebab produk-produk tersebut didapati mengandungi racun berjadual seperti raksa (mercury)? Untuk pengetahuan anda, pengambilan raksa boleh mengakibatkan kesan psikotik dan pengambilan berpanjangan boleh mengakibatkan kekejangan otot dan maut. Ya, anda boleh membaca label yang tertera di barangan barangan ini tapi siapa yang faham sangat apa yang tertulis pun? Jadi, adakah barangan ini dikawal oleh kerajaan? Ya, barangan ini mesti didaftarkan di bawah Kementerian Kesihatan Sebenarnya, ada banyak undang undang yang mengawal (sesetengah undang-undang ini bertindih antara satu sama lain) ubatan dan kosmetik seperti Akta Jualan Dadah 1952, di mana Peraturan-Peraturan Kawalan Dadah dan Kosmetik 1984 dan Garis Panduan Permohonan Memperolehi dan Menggunakan Ubat-Ubatan telah diberi kuasa undang-undang dari Akta tersebut, yang juga ada menyebut tentang Akta Dadah Merbahaya 1952, Akta Racun 1952 dan Akta Ubat (Iklan dan Penjualan) 1956. Pening kan? Pendek kata, memang banyak. Untuk mengelakkan artikel ini menjadi lebih panjang dari jangka hayat purata kita, kita hanya akan merujuk kepada segelintir undang-undang yang mengawal dunia ubatan dan kosmetik. Satu benda yang harus anda ambil perhatian tentang ialah barangan ini dikawal oleh Bahagian Regulatori Farmasi Negara (BRFN), sebahagian daripada Kementerian Kesihatan. Undang-undang pertama yang akan dilihat ialah Peraturan-Peraturan Kawalan Dadah dan Kosmetik 1984 (“PKDK 1984”) yang berkaitan dengan jenis-jenis pendaftaran yang diperlukan oleh dadah dan kosmetik. Pendaftaran dadah and produk farmasi Untuk tujuan penjelasan para pembaca, pendaftaran bagi dadah dan barangan kosmetik adalah berbeza dari pendaftaran ubat yang dikendalikan oleh Kementerian Kesihatan (bukan BRFN). Artikel ini tidak akan menyentuh tentang proses pendaftaran ubat dengan Kementerian Kesihatan. Di bawah Peraturan 7(1) PKDK 1984, pengilangan, penjualan, pembekalan, import, pemilikan dan pemberian barangan hanya boleh dilakukan untuk barangan yang telah didaftar di bawah PKDK 1984 dan hanya boleh dilakukan oleh sesiapa yang telah memperoleh lesen yang dikeluarkan di bawah PKDK 1984. Persoalan seterusnya adalah; bagaimana lesen ini dikeluarkan? Menurut Peraturan 12, terdapat pelbagai jenis lesen yang dikeluarkan oleh Pengarah Perkhidmatan Farmasi seperti: Lesen Pengilang yang membenarkan pengilangan dan penjualan secara borong atau penjualan barangan. Lesen Borong yang membenarkan penjualan secara borong atau penjualan barangan. Lesen Ujian Klinikal yang membenarkan pengimportan barangan (samada yang didaftar atau tidak) untuk tujuan ujian klinikal sahaja. Lesen Import yang membenarkan pengimportan dan penjualan secara borong atau penjualan barangan. Kesemua lesen ini harus disertakan sekali dengan barangan yang telah didaftarkan dengan sempurna (Peraturan 8). Di samping itu, Peraturan 7B ada memberi perlindungan kepada pengguna di mana jika ada barangan yang mengandungi bahan tambahan yang tidak terdapat dalam bahan-bahan yang tersenarai dalam daftar barangan ataupun dilabelkan dengan label yang berbeza, maka barangan tersebut akan dikira tidak berdaftar dengan sah. Sebagai contoh, jika Barangan A yang didaftar dengan Bahan B dan Bahan C didapati mengandungi Bahan D, maka status perlesenan akan dilucutkan oleh pihak berkuasa. Selain itu, jika Barangan A didaftarkan sebagai ubat demam tetapi dilabelkan sebagai ubat sakit kepala, status perlesenan juga akan dilucutkan. Maka selesai sudah dengan penerangan ringkas di atas, mari kita lihat kawalan ke atas barangan kosmetik. Barangan kosmetik Kawalan barangan kosmetik pula adalah sedikit berbeza. Ada beberapa syarat yang perlu dipatuhi, di mana sekiranya peraturan-peraturan ini tidak dipatuhi, barangan kosmetik tersebut boleh dilarang dari dikilang, dibekal, dijual, diimport, diberi atau diproses. Menurut Peraturan 18A, larangan pengilangan dan jualan boleh dikuatkuasakan sekiranya: Barangan kosmetik tersebut tidak dimaklumkan kepada BRFN Individu terlibat bukan individu yang telah ditentukan untuk menempatkan kosmetik di pasaran Barangan kosmetik sudah dimaklumkan kepada BRFN tetapi mengandungi bahan beracun (seperti ditentukan Akta Racun) Barangan kosmetik termaklum dicampur dengan bahan lain yang berdaftar (dadah, ubat tradisional dll.) Barangan kosmetik dilabel dengan nama lain Barangan kosmetik tidak dilabel mengikut garis panduan dan arahan yang telah ditetapka Pemakluman barangan kosmetik telah dibatalkan oleh Pengarah Khidmat Farmasi Barangan kosmetik dilabel degan kenyataan, symbol atau ciri keselamatan yang didakwa benar tetapi belum disahihkan kebenarannya. Ada banyak peraturan yang melarang penjualan kosmetik, dan ada banyak juga garispanduan sampingan yang perlu dipatuhi seperti yang termaktub dalam Garispanduan Pengisytiharan Kosmetik (Cosmetic Claims Guidelines). Pendek kata ia menjelaskan secara terperinci bagaimana sesebuah barangan boleh ditakrifkan sebagai barangan kosmetik dan dakwaan yang tidak boleh diterakan untuk barangan tersebut. Contohnya, tahukah anda bahawa barangan kecantikan kulit dilarang sama sekali mendakwa bahawa ia boleh memundurkan atau melambatkan proses penuaan? Jadi kita dah bincang pasal rang undang undang yang menentukan proses pendaftaran dan makluman, mari kita berbincang tentang satu persoalan yang amat penting. Bagaimana nak kenalpasti barangan palsu? Betul ke krim muka ni tak mengandungi raksa? Atau mungkin pil pelangsing badan ni sebenarnya bedak sejuk. Bangaimana saya nak dapatkan kepastian? Amat mudah! Tak payah bangun dari kerusi pun. Cuma layari laman sesawang BRFN di sini, dan cari barangan di bawah nama, pengilang, nombor siri dan sebagainya. Kalau ada dalam senarai, maka gunakanlah tanpa was was! Laman sesawang BRFN juga mengandungi senarai barangan yang berdaftar dan termaklum yang telah dibatalkan tarafnya oleh BRFN di sini. Selain itu, barangan-barangan yang berdaftar ini disertakan dengan ciri keselamatan iaitu pelekat hologram keselamatan (Meditag). Ini bermakna barangan farmasi, tradisional dan semulajadi berdaftar yang mempunyai Meditag ini boleh disahkan kesahihannya di mana mana farmasi yang mempunyai penyahkod hologram Meditag. Di samping itu, ada juga aplikasi telefon bimbit yang anda boleh muat turun disini untuk tujuan yang sama. Bagaimana kalau barangan yang anda guna tu palsu? Buat aduan dengan BRFN Aduan boleh dibuat secara online di borang aduan BRFN di sini. Lebih lebih lagi, aduan harus dibuat jika anda mendapat reaksi berlainan dari menggunakan barangan ini supaya Kementerian Kesihatan boleh mengambil tindakan. Satu lagi aduan sampingan boleh dikemukakan kepada Pusat Khidmat Aduan Pengguna Nasional, juga secara online di sini. Maklumat yang dikemukakan oleh kita di sini adalah sebahagian kecil dari undang undang dan peraturan yang digubal oleh kerajaan untuk melindungi kita dari barangan yang merbahaya. Tapi, kita juga perlu bijak dan berwaspada. Jangan mudah terpedaya dengan iklan dan cadangan rakan rakan anda dengan mudah. Walaupun barangan barangan tersebut telah didaftar dengan sah, bukan semua barangan sesuai untuk anda. Mungkin ia berkesan untuk rakan rakan anda, tetapi mungkin ia boleh membawa kesan sampingan atau alahan kepada anda. Jadi, kita sendiri kena pandai pandai dan berwaspada jika kita terfikir nak menggunakan barangan barangan ini."
"What is a Malaysian Commissioner for Oaths and what do they do? Have you ever seen these signs in shoplot areas saying “Commissioner for Oaths” (“Pesuruhjaya Sumpah”)? You’ve probably always wondered who these people are and what exactly do they do. Their title sure sounds fancy and prestigious, but what oaths do they commission exactly? Is it like the guy who makes people swear on a holy book to tell the truth? Do they make people swear the kind of oaths that involve a lot of vulgar words?? Actually it’s nothing like that. They sit in an office, and they sign and stamp a lot of documents. A Commissioner for Oaths certifies sworn statements In Malaysia, Commissioners for Oaths (CoO - not to be confused with Chief Operations Officer) come in two varieties - the lawyer and the public officer. It’s a complex list but basically, they affirm and verify documents and statements that will be used as legal proof in one way or another. According to the Commissioners for Oaths Rules 2018, CoO-s have the power to perform the below (lawyer-only powers in red): Receive acknowledgements of a married woman where required by law Receive acknowledgements of recognizances of bail or bail bonds Administer oaths for: Justification for bail Affidavits and affirmation documents Swearing executors and administrators (people who manage and distribute inheritance) Any persons who will be attending court proceedings Taking and receiving statutory declarations (sworn statements) Receiving and taking the answer, plea, demurrer, disclaimer, allegation, or examination of any person involved in legal proceedings The examination of witnesses If you’re married, you might have realized at this point that you came to one of these Commissioners to certify your marriage as well. How do you become a Commissioner for Oaths? The Commissioners for Oaths Rules splits the criteria for a person to become a Commissioner for Oaths into two parts - qualifications, and who is a “qualified person”. The qualifications to become a CoO are fairly basic: You need to be a Malaysian citizen You need at least an SPM or equivalent qualification You need to be between 21 and 66 years old You have good character You’re fluent in Bahasa Malaysia You’re physically and mentally healthy You don’t have a criminal record involving fraud or dishonesty You’ve not been detained to prevent crime You’ve never been bankrupt Those don’t sound too difficult to achieve, but being a “qualified person” is makes the position of Commissioner for Oaths quite exclusive. The only people who are qualified are: A Malaysian lawyer with 7 years of experience A public officer (someone who works for the government) An officer of a statutory body (bodies set up like the Animal Welfare Board) A person who has other past experience that qualifies him for the job Upon submitting an application, the Chief Justice of the Federal Court makes the decision whether to accept you as a Commissioner, and according to Rule 4 of the CoO Rules, you may have to take an exam as well as pass an interview before you get accepted. So, what makes the job important and why are the criteria so stringent? They need to make sure you understand what you’re signing Imagine signing a court testimony without knowing there’s a mistake inside, and then getting into trouble with the judges. If you can’t explain the mistake, you could get in trouble for perjury - deceiving the court under an oath to tell the truth, and get punished under the Oaths and Affirmations Act 1949. To prevent cases like that, Commissioners for Oaths are required to take a few precautionary measures stated in Rule 11 of the CoO Rules. They’ve got to make sure that you understand every statement made in the document, and the consequences of you signing it. If you don’t, it’s part of their duty to read over and explain the documents to you. Having legal knowledge or experience with governmental procedures helps a Commissioner fulfill this part of their duty. The Commissioners also verify the identity of a person who wants to certify a statement. This usually is to make sure there are no mistakes, but because they also watch for people who want to commit fraud. They also check if a person is suspicious and then refuse their services to anyone they have credible reason to suspect as being involved in crime. Are they expensive to use? According to this chart in the Second Schedule of the CoO Rules, Commissioners for Oaths’ services aren’t all that expensive. But according to a lawyer on LoyarBurok, they used to charge a lot less - only RM4 for an original affidavit (RM2 for a copy), and RM2 per exhibit (RM1 per copy). As for what happens to the money they collect, Commissioners for Oaths who are public officers or officers of a statutory body have to give the money to the Federal Consolidated Fund (the same fund that we pay our taxes to, think of it as the government’s general savings account). But Commissioners who are also lawyers get to keep their fees as a little bit of extra cash."
"GE14 caused a constitutional crisis in Sabah. Here's what it's about  A country's constitution is arguably the most important piece of document as it is the 'Mother of all laws’ in a country. In Malaysia, not only do we have the Federal Constitution which applies throughout Malaysia, but each of the 13 states have their very own state constitution. The constitution defines the boundaries of what can and cannot be done within the state. Any act or conduct that falls outside the cornerstones of either the Federal Constitution or the state constitution is an ‘unconstitutional act’. When unconstitutional acts cannot be resolved and results in a deadlock, a ‘constitutional crisis’ occurs. By now, you may be familiar with the controversy surrounding the tussle between Barisan Nasional and Parti Warisan Sabah to form a government in Sabah. We now have 2 Sabahan Chief Ministers (Menteri Besar) with both refusing to back down, and since the Sabah state constitution does not allow for 2 Menteri Besars, we have a constitutional crisis there. But this crisis isn't something new as it is reminiscent of the events that triggered probably one of the more controversial days in recent Malaysian history – the Perak Constitutional Crisis in 2009. Before we focus our attention on the unfolding political drama in the Land Below the Wind, let's revisit the story behind the Perak Constitutional Crisis to see how the outcome in 2009 could play a part in resolving the crisis in Sabah. The GE12 drama in Perak It all started in the aftermath of GE12 in 2008 when, for the first time in Malaysian election history, the state of Perak fell into the hands of the PKR-DAP-PAS opposition pact, known as the ‘Pakatan Rakyat'. In a 59 seat assembly, Pakatan Rakyat won 31 seats and Barisan Nasional won 28 seats. In Malaysia, at both federal and state levels, a party has to obtain a simple majority – which basically means more than 50% of the seats – for it to prove that it has the confidence of the majority of the members in the Parliament or state assemblies. Based on this, Datuk Seri Nizar Jamaluddin of PAS was sworn in as the Menteri Besar of Perak. Then, things started going wrong. Less than a year later, 3 assemblymen from Pakatan Rakyat quit their parties and became Barisan Nasional-friendly independent assemblymen, which now flipped the seat numbers to 31 – 28. Datuk Seri Nizar no longer had the majority’s support, but was already named Menteri Besar, which was a problem... The issue went to the Sultan of Perak for a resolution. In their audience with HRH Sultan Azlan Shah of Perak, both parties had their preferred methods of resolving the issue: Datuk Seri Nizar sought royal consent to dissolve the assembly to pave way for fresh elections in the State. Then-PM Najib (as UMNO Perak Chief) sought royal consent to form the state government. HRH Sultan Azlan Shah refused the request by Datuk Seri Nizar to dissolve the assembly, and asked him and his cabinet to resign as he no longer commanded the confidence of the majority in the state assembly. Zambry Abdul Kadir of Barisan Nasional was later sworn in as the new Menteri Besar of Perak. However, Datuk Seri Nizar refused to resign as Menteri Besar of Perak. Pakatan Rakyat claimed that the swearing in of Zambry Abdul Kadir as the new Menteri Besar was unconstitutional because: Datuk Seri Nizar was dismissed without taking a vote on the floor of the assembly beforehand Zambry Abdul Kadir was sworn in as the new Menteri Besar even though Datuk Seri Nizar had not officially resigned. With this, the legitimacy of the “new” BN-led state government was called into question – resulting in the constitutional crisis. What’s more, Datuk Seri Nizar filed a case to challenge HRH Sultan Azlan Shah’s decision to appoint Zambry Abdul Kadir as the new Menteri Besar in the High Court; culminating in a series of court battles that went all the way to the Federal Court. How is a “loss of support of the majority” determined? This was the million dollar question that would decide which way the crisis would go. In short, if the Federal court decided that... if a loss of support of the majority is solely established by taking a vote in the state assembly, then the outcome will fall in favour of Datuk Seri Nizar. if HRH Sultan Azlan Shah can, on his own discretion, determine that Datuk Seri Nizar had lost the support of the majority of the members in the legislative assembly, then Zambry Abdul Kadir was rightfully sworn in as the new Menteri Besar. The key in answering this question lies in the interpretation Article 16(6) of the Perak Constitution which states that: ”If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.” Long story short, the Federal Court ruled in favour of Zambry Abdul Kadir. Because of certain similarities between the Sabah and Perak state constitutions (which will be covered in the point below), the Federal Court referred to a case that from 1995 to interpret Article 16(16) from the Perak Constitution. That 1995 case took place in Sabah – in which then-Menteri Besar Tan Sri Joseph Pairin Kitingan lost the support of the majority of the members in the assembly – and the High Court which ruled over the case explained that: The learned Judge noted that there was nothing in the 28 Constitution which could be construed as requiring that the test of confidence must be by a vote taken in the Assembly itself. That fact could also be evidenced by other extraneous sources. In that case the extraneous source was to be found in the clear expression contained in the petition by the 30 assemblymen to the 1st defendant and the admission of that fact by Datuk Pairin himself. – Datuk (Datu) Amir Kahar bin Tun Datu Haji Mustapha v Tun Mohd Said bin Keruak & 8 Ors (1995) 1 CLJ 184 To summarise the above paragraph, a loss of support against the Menteri Besar can be proven in other ways, and not solely by taking votes in the legislative assembly. In context of this article, “other means” could include expressions of a loss of support by the other members of the legislative assembly, such as the 3 assemblymen who crossed over to BN to form the new majority. But Datuk Seri Nizar refused to resign, is he still Menteri Besar? Now that the principal question has been answered, what about Datuk Seri Nizar’s refusal to resign from the Menteri Besar post? To this end, the Federal Court decided that, in a such a scenario, the former Menteri Besar is deemed to have resigned from his post as it will be “against the principle of democracy” to allow him to continue: “The appellant cannot continue to govern after having lost the 39 support of the majority. To allow him to do so would be going against the basic principle of democracy.” – the Federal Court judgment in Datuk Seri IR. Haji Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr. Zambry bin Abdul Kadir If you want to read more on the decision of the Federal Court, a copy of the judgment can be found here. The Perak Constitutional Crisis potentially has a significant bearing on the outcome of the ongoing crisis in Sabah. Let's take a look at how things could develop there. Barisan vs Warisan – the Sabah crisis of GE14 Almost as if it was a carbon copy of the Perak Constitutional Crisis, a similar crisis stirred in Sabah after GE14, this time between Barisan Nasional and Warisan. Initially, both parties won 29 seats in a 60 member state assembly, resulting in a ‘hung parliament’ where no one commanded the majority of support. The situation started when Tan Sri Musa Aman claimed that Barisan Nasional had obtained a simply majority of 31 seats after convincing 2 assemblymen from STAR to support Barisan Nasional. He was then sworn in as Sabah Menteri Besar. However, Shafie Apdal of Warisan also managed to convince 6 assemblymen from Barisan Nasional to cross-over to Warisan, increasing its tally to 35 seats. Just like how things transpired in Perak, Shafie Apdal was thereafter sworn in as the new Sabah Menteri Besar without the resignation of Tan Sri Musa Aman. So again, the same issue arose here – whether a vote must be taken on the floor in the assembly to determine that Tan Sri Musa Aman had lost the confidence of the majority, or other means could be taken into account. The matter is going to court, and this is how it could play out via GIPHY It needs to be mentioned that this section is theoretical and based on how precedents could apply if the case gets taken to court. There is no guarantee of this scenario happening. If we look to Article 7(1) of the Sabah Constitution: Article 7(1) of the Sabah Constitution: ”If the chief minister ceases to command the confidence of a majority of the members of the legislative assembly, then, unless at his request the Yang di-Pertua Negeri dissolves the assembly, the chief minister shall tender the resignation of the members of the cabinet.” Remember how we mentioned that there are similarities between the Sabah and Perak state constitutions? Look at how similar the two provisions are: Article 16(6) of the Perak Constitution ”If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.” Because of this similarity, the decision on the Perak GE12 crisis could be used as a precedent. You may ask, what is this precedent all about? The “doctrine of precedent” says that a judge should normally follow laws created by judges in past decisions. Judges don't wake up each day and decide to change the laws on a whim. A judge decides cases and makes laws as cases are brought before them. Over time, these decisions become example authorities for judges to follow for similar cases in the future. These authorities are called precedents. Therefore, if the current crisis in Sabah ends up in court, there’s a chance the courts will follow the decisions of the 2009 Federal Court Perak case and the 1995 High Court Sabah constitutional crisis in arriving at a decision. Musa Aman has since filed a writ of summons in court to challenge the appointment of Shafie Apdal. Given that Shafie has the above precedents in his favour, we could say that Shafie and Warisan have the upper hand in this battle, but we shall have to wait and see how it actually plays out."
"What laws do you need to obey when cosplaying in Malaysia? With Animangaki-chan on 26th and 27th, and Animangaki set for mid August, anime fans are probably excited off their socks for the event. There are the games, anime, manga, merchandise, and of course - cosplay. In case you’re not familiar with what “cosplay” is, it’s a portmanteau of the words “costume” and “role play”, which involves fans dressing up as their favourite characters while role-playing as them as well. Among the huge and sometimes strange variety of characters out there, a lot of them are fighters who carry big, dangerous weapons with them (which is one reason why they’re so cool in the first place). You’re not going to buy a real sword to cosplay as a knight character, and you wouldn’t get a real machine gun to act as a soldier character. But is it actually legal for cosplayers to carry fake weapons around? This is just one of the many legal issues cosplayers could face from time to time. Here are a few laws about cosplaying you may not have known about. 1. Prop Weapons Cosplayers are not going to get arrested for carrying a foam sword around, but Malaysian laws actually make it illegal to carry a foam gun around. Section 36 of the Arms Act 1960 says that any person who carries around an “imitation arm” without a license shall be liable to up to 1 year in prison and/or a fine up to RM5000. An “imitation arm” is defined under Section 2 of the Arms Act as: “...anything which has the appearance or is intended to give the impression of being an arm, whether it is capable of discharging any shot, bullet, missile, noxious liquid, gas or other thing, or not” Yep, your props don’t actually need to be capable of shooting bullets, flames, or gas to be considered an “imitation arm”. This includes non-lethal guns (like BB guns), and toy guns. Since the definition doesn’t specify, an “arm” is any lethal barreled weapon that can shoot any shot, bullet, missiles, noxious liquid, gas, or other things. This includes air guns and flamethrowers as well. If you or your friends intend to cosplay characters who use guns - it’s best to take note that they don’t appear TOO real to avoid legal trouble. Now that we’ve covered guns, what about fake swords and other fake bladed weapons? The Malaysian law that covers these weapons is the Corrosive and Explosive Substances and Offensive Weapons Act 1958 (CESOWA). The main thing to note is that when cosplaying characters who hold weapons, you’ll need to make sure that they are not capable of actually harming people. For example, popular costumes from the Assassin’s Creed franchise feature a hidden blade. A lot of cosplayers have successfully created their own versions, which can actually be dangerous if a sharp edge was attached to it. For safety reasons as well as legal ones, it’s best to attach a foam blade or other similar material that won’t cause much harm if an accident happens (like slicing your own finger off). Cosplayers need to take caution even when using fake weapons - especially those that are made more realistically. Panic has actually been caused in places around the world where a katana-handle umbrella got mistaken as a real sword. It’s advisable to make sure that your weapon props clearly look like imitations when out in public, and if you get stopped by the police, cooperate fully with them to check your props out as safe. 2. Illegal costumes While there’s no law being broken if you dress up as a maid or even a monster, there might be legal concerns if you want to dress up as a character from the police or armed forces. There’s actually been an incident of a guy dressing up as a policeman because according to him, it’s his hobby to imagine himself as a police officer. For the rest who want to play their favourite fictional cop, you have nothing to worry about - it’s only illegal if you dress up as a member of the PDRM. According to Section 89 of the Police Act 1967, it’s illegal to have anything supplied to the police to perform their duties (like handcuffs and guns) or any medals and decorations of the police force without a valid reason. An interesting law in Section 89(c) is that you can play as a Malaysian police officer in a stage performance, but not for anything else - so you can’t do it for cosplay. On another note, if you’ve ever wanted to cosplay a character that has a revealing outfit, there may be concerns whether or not you can get into trouble for indecent exposure. According to the law, how revealing you can go really depends on what society considers acceptable. Section 509 of the Penal Code covers when you intend to insult a person’s modesty using obscene sounds, gestures, or objects. The punishment is up to 5 years in prison, and/or a fine. But while you’re in the clear from this law if you didn’t intend to shock others around you, there’s another law that you might still get arrested under. Section 294(a) of the Penal Code also makes it a crime to do any obscene act in a public place which could annoy others. Section 294(a) of the Penal Code “Whoever, to the annoyance of others— (a) does any obscene act in any public place… shall be punished with imprisonment for a term which may extend to three months or with fine or with both.” Under this law, you don’t need to intend to do it for it to be an offence. So if you are caught with a skimpy costume that you consider acceptable, you might still get into trouble if other people find your costume disturbing. So if you’re into cosplaying characters with over-the-top revealing costumes, you may want to keep those to your private space, and also keep any photos you take private. A lot of cosplayers perform private photoshoots that they often distribute through prints and social media for publicity. If the photos are obscene, this could mean legal trouble for the distributors if they’re found out. Which brings us to... 3. Selling obscene photos and videos If an obscene set of cosplay photos are put up for sale, or even if they are given out for free, it may get the publisher into trouble with Section 292 of the Penal Code. Section 292 of the Penal Code - in part “Whoever— (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever...shall be punished with imprisonment for a term which may extend to three years or with fine or with both.” Most cosplayers out there are probably not interested in publishing lewd pictures of themselves. However, if obscene pictures of you have been taken and put up without your permission, you can report the incident to the MCMC to have action taken. Section 233(1) of the Communications and Multimedia Act 1998 makes it an offence to publish obscene or indecent content online, as explained by the law: “A person who— (a) by means of any network facilities or network service or applications service knowingly— (i) makes, creates or solicits; and (ii) initiates the transmission of, any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person... commits an offence.” Here’s a flowchart of how to make your complaint prepared by the MCMC themselves. 4. Copyright issue… or not? While selling non-obscene prints of your cosplay will not trigger any of the earlier laws. They might become a copyright issue. From a strictly legal point of view, you’re using someone else’s copyrighted character and costume without their permission. I know what you’re probably thinking: big companies have better things to do than sue you for showing your fandom. And you’d be absolutely correct there. Unless you’re outright stealing someone’s character as your own, the law in Section 13(2A) of the Copyright Act 1987 will consider whether your costume is a “fair use” of the original - which means that it’s okay for your to use a small part of the original work. These factors include: What are you using the costume for? (Is it commercial, educational, and/or non-profit?) How much of the original work did you copy? (With cosplay, you only use one character) Are you competing with the original creator with your costume and cosplay prints? This means that if you’re cosplaying as a hobby, it’s unlikely that the original creator will come after you. But if you’re making money off your cosplay prints and props, then you might be competing with the original creator - which gives them every right to sue you if they want to. One exception might be popular cosplay personalities appearing at events and promotions. This is because they’re appearing as themselves, and not as “Wonder Woman”, or “Crash Bandicoot”. For example, cosplay stars appear as themselves at a cosplay competition, which is different from an event promoting itself by saying “come meet Mickey Mouse”. This is illegal without permission from Disney, and they have sued an events company for cosplaying their characters at children’s birthday parties) Basically, they’re popular because of themselves, and not the character they are cosplaying as - so it doesn’t really go against copyright. Freedom to express yourself comes with a little responsibility Preparing for a cosplay event can be really exciting for those who are into the hobby. But while we want the freedom to express ourselves, it comes with responsibilities to keep in line with the law. Risking copyright issues legal issues where you don’t have to is not the wisest thing to do, and it takes the enjoyment out of your hobby. Cooperating with the authorities to make sure everything is okay can go a long way in keeping everyone safe at an event. The laws on prop weapons can help catch someone who might be hiding a real weapon under the guise of a costume. While there have been cases where a “katana” was spotted and it turned out to be an umbrella, the last thing we want is someone getting away with bringing a real weapon around, just because we assumed it was a fake."
"5 things that will happen in Malaysia when GST goes to 0% You’ve probably already heard about how fast the Pakatan Harapan government has delivered on its promise to ease the burden of the Goods and Services Tax (GST) off Malaysians. On 16 May 2018, just 7 days after GE14, they announced that GST would be reduced to 0% starting 1 June 2018. And it’s great news for Malaysians since GST has been blamed for inflation since its inception in June 2014. But why did Pakatan Harapan specifically reduce GST to 0%? Can’t they just abolish it entirely? No they can’t. The legal consequences of 0% GST and “no GST” are very different. There are transitionary matters to be considered like the fact that business owners will need some time to make adjustments and adapt. But most importantly, Parliament needs to convene before the Goods and Services Tax Act 2014 (GST Act) can be officially repealed, and may be replaced by another tax law. So this is just a compromise Pakatan Harapan has proceeded with to fulfill their promise, even though they can’t abolish the law yet. The date of Parliament’s next session has yet to be determined according to the Calendar for the House of Representatives (Dewan Rakyat). Other than the fact that GST specialists may soon be out of their jobs, there are some important consequences after 1 June that may not be obvious to the average consumer. We had some difficulty deciphering how the GST Act works, so we interviewed a GST consultant who prefers to remain anonymous to better understand the matter. (let’s call him Bob!) But first, Bob reveals that most Malaysians still don’t know how GST really works, because there is a lot of false information out there about it. So let’s start by debunking one major misconception that most people may have. You ONLY pay 6% on what you buy A lot of Malaysians believe that GST is terrible because the 6% is charged on every step of the supply chain, so the amount gets compounded (which gave rise to social media posts like this one). This is completely untrue. Bob tells us that GST is essentially a tax on added value. Whenever a manufacturer, distributor, or retailer does business, they get charged 6% on their costs (“input tax”), and they collect 6% on the sales they make (“output tax”). Businesses registered under GST can then claim their input tax back from the government, and send the remainder to the government as provided in Section 38 of the GST Act. This means that those businesses don’t actually pay anything in GST. For example, if a business’s cost of goods is RM100, they’ll be paying RM6 as GST (6%). If they sell the goods at RM200, they’ll charge 6% on top of that, which means they collect RM12 for that. The business takes the RM12, minuses off the RM6, and then sends the remainder over to the government. The net effect is that consumers are only charged 6% on the final price they pay. There are exceptions like zero-rated items which are not charged GST, and exempt supplies which cannot be claimed back from the government. You can find more of the details on how GST works at the Malaysian Customs’ website. If you’re wondering why you felt a crazy increase in prices instead of just 6%, you’ll find the answer in point number 5 below. With that, let’s get into 5 implications of GST going to 0% on the first of June. 1. Parliament has to approve the 0% GST when they convene The GST Act states that the Minister of Finance has the power to decide how much GST to charge in Malaysia. He does so by publishing an order in the Federal Gazette, informing the public about the change. This is where you’ll find all changes to Malaysian laws published before they can take effect, and yes, the order for GST to be reduced to 0% is up on the Gazette. This power is given by Section 10(2) of the GST Act, which states that: “The Minister may, by order published in the Gazette— (a) fix the rate of tax to be charged on the supply of goods or services or on the importation of goods; and (b) vary or amend the rate of tax fixed under paragraph (a).” Thing is, Section 10(3) states that this change must later be shown to the Dewan Rakyat to be confirmed by a resolution (they vote on the matter). This order needs to be confirmed within 120 days of being shown in Parliament, or it will become invalid. So if MPs later decide not to vote in favour of 0% GST, it can theoretically go back to being 6%. 2. Businesses will still have to do GST reporting While zero-rated items don’t get charged GST, companies still had to include them in their tax return form under the old rules, although they would be charged 0% GST. By reducing GST to 0%, Pakatan Harapan is practically making ALL goods and services in Malaysia zero-rated (although the accountants and consultants here will tell us that this is technically not accurate, Bob the GST consultant says that the bottom line is still 0% GST for consumers). Although this is the case, GST is still “chargeable” under Section 9 of the GST Act, and companies will still need to file their tax returns every month as required by Section 41. Failing to file a return can get the company fined up to RM50,000 and/or the persons responsible could get jailed up to 3 years. It may seem unreasonable and silly to file tax returns on 0% GST, but this is a transitionary inconvenience that we’ll have to put up with until the GST Act is repealed by Parliament (or not). 3. It might get harder to detect tax fraud Whenever there are rules, there will be those who try to game the system to their own advantage. According to Bob, GST’s framework was helping to catch businesses that were committing tax fraud against the government - by keeping the taxed amount for themselves. [READ MORE - 5 Malaysian tax offences you don’t want to accidentally commit] This happens when a company tries to underdeclare their sales, so that the amount of tax they collected looks smaller on paper. This was a big problem under the Sales and Services Tax, because taxes were “single tier” (only collected from one part of the supply chain), and so you didn’t have any documents you could cross-check or verify with. “GST is actually a more efficient tax system than SST. It’s easier to identify fraud using GST because we analyze the entire supply chain on a line-by-line transaction basis. If I’m a customs officer who is auditing a company’s taxes, it’s very easy for me to locate irregularities in their numbers by cross-checking with the records from their customers and suppliers.” - Bob, in phone interview with ASKLEGAL While we’re positive that the new government will discuss tax fraud as part of the new tax system, GST did provide a decent framework that was not easy to cheat. 4. Businesses won’t have as many cash flow problems Some credit-term businesses ran into financial trouble when GST rolled by. Bob says that GST requires a business to foot the GST bill upfront, possibly before even getting paid by their customers. This is why he expected Malaysia to implement GST gradually, like Singapore did. You see, Singapore started off their GST at 3%, before gradually going up to 7%, giving businesses enough time to adapt and create a cushion for themselves. Malaysians felt the sudden impact of GST because we started at 6% right away, and our businesses had to foot a big GST bill upfront, and then wait a few months to get paid. “For example, if my business gives customers 60 days to settle their invoices, I still have to submit the GST on my sales at the end of the month. On top of not actually getting paid by my customers yet, if I qualify for a GST refund, it also takes a long time for the government to process and pay it back. They’re not very efficient about it.” - Bob, in phone interview with ASKLEGAL To clarify, companies get GST refunds when they pay a higher input tax – their cost of goods is higher than their sales. An example scenario would be buying a property to be rented out, the upfront cost for the building is much higher than the rent collected each month, so the government pays them back because they weren’t supposed to be charged in the first place. This caused a lot of businesses to not have enough cash on hand to pay their bills. With GST going away, this is one of the advantages businesses will get out of it. 5. Prices may or may not go down You might have already speculated that some businesses won’t actually cut their prices even after GST is abolished, and will keep their old profit margins plus the nice 6% bonus. This is a very real concern, but the price problem didn’t start there. Many consumers are unhappy about GST because prices rose more than 6% - which makes GST look like a really bad system. Apparently, a lot of retailers used GST as an excuse to raise their prices, but according to Bob, your local reseller might be telling you the wrong thing just to earn a quick buck! This concern was why the Price Control And Anti-profiteering Act 2011 was passed before introducing GST. The law basically introduced a formula to measure and control a business’s profit margin. You were not allowed to increase prices if your costs didn’t increase. This was meant to be used together with GST so that prices would not be raised with GST as a convenient excuse. Remember again that the GST system does not charge businesses, only end consumers, so any rise in prices beyond the 6% from GST itself was unjustified. Bob tells us that the problem might have been that the anti-profiteering regulations were not well known, and consumers didn’t even know that they could make complaints about drastic hikes in prices. He also claims that the enforcement on the Price Control And Anti-profiteering Act was not good enough, so a lot of greedy vendors got away with ridiculous price increases. As for whether we can get businesses to lower their prices in response to the removal of GST, Bob says we have to wait for any new laws that might be passed to come out and get enforced. If you feel that prices have increased unfairly since GST was implemented, you can actually make a report to the Ministry of Domestic Trade, Co-operatives and Consumerism (KPDNKK). You can find their e-complaint system over here, but there are also other ways to contact them, which you’ll find at the end of our other article below. [READ MORE - If you get overcharged for nasi campur, can you refuse to pay?]"
"7 undang-undang ganjil Malaysia (yang anda mungkin tidak tahu kewujudannya) [Artikel asal ditulis dalam Bahasa Inggeris. Click here for English version] Dalam mana-mana negara pun, penting adanya undang-undang bagi membantu pentadbiran dan pengurusan negara itu. Disebabkan kebanyakan undang-undang ini digubal pada waktu di mana norma-norma sosial, moral, bahkan juga teknologi yang jauh berbeza berbanding pada masa sekarang, beberapa undang-undang lama-kelamaan kurang dikuatkuasakan. Akibat daripada itu, ramai yang kurang tahu tentang kewujudan sesuatu undang-undang itu melainkan jika pekerjaan mereka ada terkait dengan undang-undang tersebut atau mereka mempunyai minat terhadapnya dan ingin ambil tahu. Sehubungan dengan itu, ini tidak bermakna ia tidak sahih lagi, tetapi boleh diterima pakai atau dikuatkuasa sekiranya diperlukan. Di bawah adalah 7 jenis undang-undang yang kurang diketahui tetapi masih wujud dan sahih di Malaysia. 1. Menunggang gajah di jalanraya Undang-undang: Seksyen 11(b) Akta Kesalahan-Kesalahan Kecil 1955 (tiada penterjemahan rasmi) – Lain-lain Kesalahan: 11. Sesiapa yang – (a) memimpin, memandu atau menunggang mana-mana kuda, lembu, biri-biri, kambing atau khinzir di mana-mana jalan awam secara tidak terkawal atau secara berbahaya yang boleh menghalang orang lain atau menyekat lalulintas; (b) memandu, menunggang atau memimpin mana-mana gajah di mana-mana jalan awam tanpa kebenaran daripada Ketua pegawai Polis atau pegawai yang diberi kuasa; Hukuman: Denda maksimum tidak melebihi RM50. Jadi sekiranya anda mahu menunggang gajah pergi ke restoran mamak, dinasihatkan jangan – melainkan anda mendapatkan kebenaran daripada Ketua Pegawai Polis terlebih dahulu. Bukan sahaja itu, anda juga harus memastikan bahawa gajah itu ditunggang dengan cara yang tidak membahayakan pengguna-pengguna jalan raya yang lain atau menghalangi jalan, jadi, ini tidak memungkinkan anda memakai telefon semasa menunggang. Secara perspektif, akta ini adalah akta lama. Contohnya, paling anda akan didenda hanya sebanyak RM50 sekiranya menunggang gajah dengan berbahaya di jalan raya, tidak seteruk berbanding denda memandu dengan kelajuan tinggi di lebuhraya pada tahun 2018. 2. Nyanyi lagu yang berunsur lucah di tempat umum Undang-undang: Seksyen 294(b) Kanun Keseksaan (tiada penterjemahan rasmi) – Nyanyian lucah: Siapa-siapa yang mengganggu orang lain dengan – (a) berkelakuan lucah di tempat umum; atau (b) bernyanyi, berkata-kata atau berbicara apa-apa nyanyian atau kata-kata yang mempunyai unsur lucah di tempat umum, maka akan dikenakan penjara selama 3 bulan atau denda atau kedua-duanya sekali. Hukuman: Penjara maksimum selama 3 bulan, denda, atau kedua-duanya. Seksyen 294(b) Kanun Keseksaan menyatakan bahawa adalah salah jika menyanyikan lagu yang mempunyai unsur lucah di tempat awam. Kelakuan sedemikan sama seperti melakukan aksi lucah di depan orang ramai. Akta berkenaan itu sendiri tidak menjelaskan apa yang dimaksudkan dengan “lucah”, jadi ia adalah bersifat subjektif berdasarkan interpretasi pihak berkuasa dan/atau orang lain yang mendengarnya (dan melaporkannya). Undang-undang ini sudah lama tidak dipakai oleh sebab belum ada orang yang dikenakan tindakan baru-baru ini (yang kita dapat cari). Sebagai langkah berjaga-jaga, lebih baik anda menggumam sahaja lirik lagu Despacito jika anda terdesak untuk menyanyikannya semasa melintas jalan. 3. Bermain drum di kawasan bandar pada malam hari Undang-undang: Seksyen 13(1a) Akta Kesalahan-Kesalahan Kecil 1955 (tiada penterjemahan rasmi) – Bunyi bising yang keterlaluan Sesiapa yang – (a) memukul drum atau tom-tom, atau meniup hon atau trumpet, atau membunyikan lain-lain instrumen musik atau perkakas rumah di kawasan Bandar atau perkampungan dari waktu tengah malam hingga jam 6 pagi, atau di mana-mana jalan atau tempat awam tidak kira waktunya, yang boleh mengganggu ketenteraman sekeliling; … Hukuman: Denda tidak melebihi RM100 Ya, sebenarnya terdapat undang-undang khusus berkenaan bermain alat musik dengan kuat – termasuk drum, tom tom dan trumpet – antara jam 12 pagi hingga 6 pagi di kawasan Bandar atau perkampungan. Ini diterangkan di dalam Seksyen 13(1a) Akta Kesalahan-Kesalahan Kecil 1955 (tiada penterjemahan rasmi), di mana ia merangkumi mana-mana kawasan bandar atau perkampungan, dan termasuk juga dengan penggunaan perkakas rumah sehingga mengeluarkan bunyi bising yang boleh mengganggu atau menimbulkan kemarahan orang lain pada bila-bila masa di tempat-tempat awam. Ini menunjukkan kenapa Malaysia tidak mempunyai band garaj (selain alasan kita memang tidak mempunyai garaj). 4. Percubaan membunuh diri Undang-undang: Seksyen 309 Kanun Keseksaan (tiada penterjemahan rasmi) – Percubaan membunuh diri: Sesiapa sahaja yang mencuba untuk membunuh diri, … boleh dijatuhkan hukuman penjara tidak melebihi satu tahun atau dikenakan denda atau kedua-duanya sekali. Hukuman: Penjara maksimum selama 1 tahun, denda, atau kedua-duanya. Undang-undang ini dikatakan paling kontroversial dan, walaupun lebih diketahui daripada poin yang lain dalam artikel ini, ia masih mampu memberikan kejutan kepada masyarakat umum. Seksyen 309 Kanun Keseksaan (tiada penterjemahan rasmi) menyebut bahawa percubaan untuk membunuh diri adalah sama sekali salah di sisi undang-undang, dan juga sesiapa yang mencuba untuk membunuh diri akan dikenakan hukuman sewajarnya. Dan ini hanya tertakluk jika percubaan bunuh diri gagal. 5. Menghina atau mengutuk seseorang Undang-undang: Seksyen 14 Akta Kesalahan-Kesalahan Kecil 1955 (tiada penterjemahan rasmi) – Kelakuan yang menghina: Sesiapa pun yang menggunakan perkataan-perkataan yang kurang sopan, mengugut, aib atau menghina … dengan tujuan membangkitkan kemarahan untuk mengganggu keamanan atau di mana keamanan mungkin terganggu, … Hukuman: Denda maksimum RM100 Jika terdapat seseorang membangkitkan kemarahan anda – baik di atas jalan raya ketika memandu mahupun berasak-asak menolak anda di tempat kerumunan ramai – lebih baik anda bersabar dan tahanlah diri anda daripada marah-marah menjerit atau mengutuknya. Menurut Seksyen 14 Akta Kesalahan-Kesalahan Kecil 1955 (tiada penterjemahan rasmi), apa-apa bentuk penghinaan – sama ada dalam perkataan, bahasa atau kelakuan – dengan tujuan mengganggu keamanan umum atau membangkitkan kemarahan orang lain adalah salah dan boleh dikenakan hukuman. Tetapi sekiranya anda berasa boleh melarikan diri dengan meletakkan keluhan anda di media sosial, maaf kata, itu juga boleh membawa anda ke muka pengadilan. [Baca lebih lanjut: Shaming someone on social media can land you in jail] 6. Mabuk di tempat awam Undang-undang: Seksyen 21 Akta Kesalahan-Kesalahan Kecil 1955 (tiada penterjemahan rasmi), – Kemabukan dan berkelakuan tidak senonoh di tempat awam: Sesiapa yang didapati mabuk dan tidak mampu untuk menjaga kelakuannya, atau didapati bersalah berkelakuan tidak senonoh atau tidak terkawal…di jalan terbuka atau di mana-mana tempat awam atau hiburan atau resort, atau di kawasan mahkamah atau mana-mana pejabat atau balai polis atau tempat ibadah, … Hukuman: Penjara maksimum 14 hari atau denda maksimum sebanyak RM25 untuk kesalahan pertama; penjara maksimum selama 3 bulan, denda sebanyak RM100, atau kedua-duanya untuk setiap kesalahan yang terulang. Jadi, sekiranya anda hanya berpendapat bahawa satu-satunya kesalahan mengambil alkohol adalah semasa memandu, fikirlah sekali lagi. Seksyen 21 Akta Kesalahan-Kesalahan Kecil menyatakan bahawa seseorang itu dikatakan telah melanggar undang-undang jika didapati mabuk dan tidak mampu menjaga dirinya serta bertingkah laku tidak sopan atau membahayakan orang lain di tempat awam. Adalah menjadi kesalahan juga jika situasi di atas mengambil tempat di kawasan mahkamah, pejabat-pejabat awam, atau tempat ibadah. Hukuman untuk kesalahan pertama adalah penjara tidak lebih 14 hari atau denda tidak lebih RM25. Denda maksimum sebanyak RM100.00 maksimum atau hukuman penjara selama tidak lebih 3 bulan atau kedua-duanya sekali dikenakan untuk setiap kesalahan terulang. 7. Seks oral untuk kaum lelaki Undang-undang: Seksyen 377A Kanun Keseksaan (tiada penterjemahan rasmi) – Persetubuhan di luar tabii: …kemasukkan zakar ke dalam mulut atau lubang dubur seseorang dikatakan telah melakukan persetubuhan di luar tabii. Hukuman: Penjara maksimum 20 tahun, dan sebat. Jangan terkejut! Akta ini memang benar-benar memperkatakan tentang tajuk di atas. Seksyen 377A Kanun Keseksaan menyatakan bahawa seseorang lelaki itu memasukkan zakarnya ke dalam mulut seseorang, maka dia telah melakukan suatu kesalahan, iaitu melakukan persetubuhan di luar tabii. Ini sama juga halnya jika memasukkan zakar ke dalam lubang dubur. Lebih banyak kita tahu.... Pasti sukar untuk kita mengetahui setiap undang-undang yang wujud, tetapi memberikan alasan tidak tahu undang-undang itu adalah tidak diterima jika anda dihadapkan ke mahkamah – hal yang anda harus ingat apabila menunggang gajah di sekitar KL sambil menyanyikan lagu Despacito. Terdapat undang-undang yang kedengarannya pelik ataupun ketinggalan zaman di negara lain juga. Misalannya di US, gajah tidak dibenarkan untuk membajak di Carolina Utara (kenapa tak henti-henti isu gajah ini??); jadi memang agak mustahil untuk kemaskini undang-undang yang ada. Justeru itu, kerajaan mengambil langkah mengemaskini beberapa undang-undang yang difikirkan perlu, seperti menguatkuasakan Akta Keganasan Rumahtangga untuk memperbaiki kelemahan yang ada, atau memperkenalkan Akta Seksual Kanak Kanak seiring dengan timbulnya masalah berkenaan secara online."
"We interviewed a Private Investigator operating in Malaysia. This is what we discovered If we say the words “Private Investigator”, the first image that would probably come to mind is a shadowed man in a long trenchcoat standing next to a window with a cigarette in his mouth and soft jazz music in the background. Or at least that’s the impression that we get from TV shows. But this leads us to the question – what are REAL Private Investigators (PI) in Malaysia really like? To answer this question, we spoke to a real PI operating in Malaysia that we got in touch with through unnamed contacts. For the interview, we met (at his request) in an abandoned office warehouse somewhere in Shah Alam, where I was frisked for any cameras or recording devices. He didn’t want his real name revealed, so we settled on the pseudonym “Poirot” after Agatha Cristie’s famous fictional detective. Just kidding. This is Kay Nair, a veteran Private Investigator from Kay’s Spy Solutions; and we met at a cafe in Petaling Jaya after getting in touch through Facebook. He was totally okay with us taking (and publishing) his photo. So Myth #1 is debunked – PI’s aren’t shadowy operatives hiding in bushes (most of the time), but they actually do some really cool stuff which Kay tells us about later in the article, from Bourne Identity-style spy work to working as an undercover agent. But first, let’s get into the legal aspects. Are Private Investigators legal in Malaysia? The quick answer to this is yes – Private Investigators are issued licenses under the Private Agencies Act 1971 and are under the purview of the Ministry of Home Affairs. Section 2 of the Private Agencies Act 1971 – Interpretation (in part): [...] “business of private agency” means the business or activities which are carried on by a person for the purpose of— (a) providing guards and protection for the personal safety and security of another person or for the safety and security of the property or business of such other person; or (b) obtaining and furnishing information as to the conduct, activities or affairs of another person; Looking at the above, PI’s fall under subsection (b), though Kay (who is licensed) also tells us that these licenses are also pretty hard to come by due to the high requirements involved, and there are some PI’s who operate without licenses. So just to put it out there, a license does not indicate how good a Private Investigator is. The license plays a role when there’s an intention to take the case to court because, if you need the PI to stand as a witness or if the court needs the PI to verify a piece of evidence (such as a photo where the target’s face isn’t fully seen), only a licensed PI is allowed to take the witness stand. Using a scenario where a wife suspects her husband of cheating as an example, the wife first needs to decide if she wants to divorce her husband if the PI finds evidence of an affair (since there’s a chance he could be clean). If it’s just for peace of mind or giving him a piece of her mind when he comes home – the license won’t matter. But if she wants to start a divorce with the evidence – then finding a licensed PI would ensure a greater chance that the evidence will be accepted in court. Now that we’ve covered the legality of the profession, let’s take a closer look into what a PI can and cannot do, starting with what most of you are probably wondering when you clicked to read this article. Private Investigators CAN follow you and take pictures In general, Private Investigators are bound by regular laws as well as restrictions mentioned in the Private Agencies Act, at the cost of their license plus other legal ramifications if they break them. This is summarized in Section 4 of the Private Agencies Act: 4. (1) Where in the opinion of the Minister a licensed private agency carries on its business or engages in activities or its business is being used for any purpose prejudicial to peace, welfare and good order in the Federation, or contravenes this Act or any other written law, the Minister may, subject to subsection (4), revoke or cancel or suspend the licence issued to such licensed private agency. When it comes to surveillance – following and taking pictures – there are no laws that prevent either if it happens in a public space, with the assumption that neither are done in a harassing or threatening manner. This also means that a PI will draw the line on private property, as entering your house or disguising himself as a rosebush in your garden is an offense under the Penal Code for Trespass. There are actually a few different forms of Trespass in law, so you may want to read more about that in this link. For the most part though, the job involves a lot waiting around. Kay says that for surveillance jobs, he’ll be watching a target from the time the target wakes up to the time the target goes to bed, logging down who they meet, where they go, and maybe taking some pictures along the way. Usually, he’ll also inform the police in advance that he’ll be doing surveillance work, without giving them the specific details to safeguard the privacy of his client and prevent tip-offs. “I once waited near a road junction from 6:30am till midnight, and didn’t move from that spot because the guy (the target) didn’t go out. A passerby noticed I had been there for some time and reported me, so the police showed up. I explained what I was doing and showed them my license. The police accepted and advised me to stay further away.” It’s so important to note that Private Investigators are not the police or enforcement authority, so they can’t recover debt or money lost through fraud, stop crimes, or arrest someone – the most they can do is to locate the person of interest and let the authorities do the rest. This is further reinforced in Section 6 of the Private Agencies Act, which forbids a PI from involving themselves in any seizable offences (ie, robbery, kidnapping, murder); instead requiring them to report the offence to the police. Kay says that if a seizable offense were to take place, he would call the police, record the incident, and serve as a court witness if needed. They CANNOT plant a GPS tracker or wiretap your phone While certain documents are openly available over the counter through proper channels like JPJ, SSM, and such; others are protected by law. For example, a PI will not be able to walk into a telco and ask them to triangulate your location or get your phone records due to internal company regulations and published laws such as the Personal Data Protection Act. There are a multitude of laws which we won’t cover in detail here, but it basically means they also can’t do stuff like placing a GPS tracker in your car, wiretap your phone, or hack into your smartphone, computer, or email. Kay tells us that part of being a PI is knowing where and how to get information to crack a case, without breaking the law. While a Private Investigator can’t plant a tracker on a philandering husband’s car, in some circumstances they may ask the spouse (the client) to do it instead. This is a grey-ish area of law, because the boundaries of permission and privacy are a little more blurred when it comes to married couples. As an example, if you gave your spouse the password to your phone, it’s arguable that you’ve implicitly given them permission to use the phone. In contrast, if they looked over your shoulder and saw you keying in your password, this does not imply that any permission was given. Also, while they can’t legally go through your postbox, it’s not illegal for them to go through your rubbish (unless your trash can is within your private compound). “Yes, sometimes I even dig through their garbage. Even an empty envelope can solve a case” – Kay Nair To illustrate how the smallest detail can crack a case, Kay tells us of a case where a man had gone into hiding so well that no one was able to locate him. When Kay was hired, he was given the same (and only) lead that stumped everyone else… a single phone bill. Going through it, Kay noticed that there was one number that was missed or perhaps not seen as important by others. He did a search on the number and the result was... “Cooking gas. The guy bought a gas cylinder.” Kay deduced that gas deliveryman would know the address so, after another search, found that the gas cylinder supplier was based in Penang. He travelled there, met up with the supplier to get the address, and showed up at the target’s doorstep. Case solved. “I believe that in life, everyone leaves behind small hints or clues. It’s just whether or not you see it” While real life private investigation work isn’t the same as the movies, Kay does take some inspiration from them. After watching a trick to get a target’s hotel room number by observing the numbers punched in by a receptionist in the Bourne Trilogy movies, he tried it... and it worked. They DON’T go around in disguise This isn’t really related to anything legal, but we thought we’d ask out of sheer curiosity. Despite what popular culture might lead us to believe, Kay does not have a cupboard of fake mustaches and uniforms. “If I feel like I’ve been seen, I’ll immediately change my shirt at most. A good PI doesn’t get spotted.” However, where a uniform disguise may come in handy is when he gets hired by companies for undercover work – mostly to uncover loopholes exploited by employees (in cases of theft) or to stop counterfeit products like cigarettes and liquor. He once spent two years undercover as a worker in Port Klang to uncover a contraband operation, gathering samples and information to be passed on to the company that hired him. He also adds that a license also comes useful here, as corporate clients will usually ask to see a license. What you need to ask when hiring a PI If you feel that you require the services of a PI, Kay’s advice is to always “interview” a prospective P.I. before hiring them. When meeting with them, some things you should keep in mind are: Do your research beforehand and ask them about their experience Ensure they’re able to advise you on courses of action (legally) Ask for a license if it’s a court case Prepare to openly discuss your case (even if they may be embarrassing) Have a clear idea of what you need from the P.I. Generally, a PI will also have a set of questions for you as well so that they’ll be able to gauge what needs to be done and how much it’ll cost. In that sense, Kay mentions that he’s had to refuse clients who weren’t willing to give him the necessary details or were asking for something that was against the law. As to the cost of hiring a PI, Kay says that it varies depending on how much work is required, and how long it takes. As an example, it would cost between RM3,000 – RM9,000 to locate someone, but that can go above RM20,000 if the person is in hiding. While we aren’t sure if this is across the industry, both parties may also sign an agreement where services (what the client wants done) are listed so that everyone is clear on the tasks and the costs involved. “As many of our cases are matrimonial, we also have an ‘Eye on Spouse’ package for basic surveillance and photo evidence on cheating spouses. It’s RM3,600 but I haven’t revised the price for some time. Haha”"
"5 legal reasons you should never take part in a Sambung Bayar deal Buying a car is really expensive. But you’ve got more than just the initial price tag to consider, there’s still the hidden costs associated with owning a car. Not only is the down payment high, there’s the maintenance, insurance, road tax, and fuel costs to think about. And this is all just so you can go to work. Public transport is an option, it’s not always practical or convenient for everyone. With that in mind, there are some ways that you can get a car without breaking the bank. The most obvious way is probably by buying a second-hand car. The thing is, not everyone may qualify for a hire purchase loan agreement with a bank, so they turn to a rather attractive deal commonly known as sambung bayar (“continue payment”). Here’s how the sambung bayar scheme usually works The usual scenario is that the owner of a vehicle is still servicing the loan, but may want to sell the vehicle already. They don’t really want to incur the hassle of properly selling off the car, or they might be in need of quick cash. The buyers also get good deal since they don’t have to foot the full price of the car - they just need to place a much lower deposit, and commit an installment payment each month. The arrangement is called sambung bayar because the owner “sells” the vehicle to a buyer, who continues to make the monthly installment payments for the owner’s loan. Although the seller lets the buyer take the vehicle, it stays registered under the seller’s name. The seller will usually ask for an initial deposit from the buyer, and they’ll either sign a contract, or shake hands on the agreement. But people who use sambung bayar are not protected by law Any contract signed as part of a sambung bayar agreement is not legally enforceable because banks usually put a condition in the hire purchase loan stating that you cannot resell the vehicle without their permission. Hand-shaken agreements are also usually not enforceable, which puts you in a bind if the other party breaks their promises. [READ MORE - Can I sue someone who promised to marry me, but doesn’t?] This is why people usually make sambung bayar arrangements between family and close friends - there’s a higher level of trust between them. But, it’s still not advisable because there’s yet another 5 risks you have to deal with, and most of them have nothing to do with your Uncle Razak’s reputation as an honest man. 1. It’s illegal Sambung bayar agreements are made illegal under Section 38 of the Hire Purchase Act 1967, which states that: “Every person who, by the disposal or sale of any goods comprised in a hire-purchase agreement, or by the removal of the goods, or by any other means, defrauds or attempts to defraud the owner shall be guilty of an offence…” We should make it clear here that when you buy a car using a hire-purchase agreement, the bank owns your car until your loan is paid off. So you don’t actually have the right to sell off your car unless you ask the bank and make the necessary arrangements with them. Breaking this law can get you fined up to RM30,000 and/or a prison term of up to 3 years. This law is also the reason why sambung bayar contracts all have no effect. They are what the law calls void ab initio (invalid from the start). Section 24 of the Contracts Act 1950 basically says that if a contract involves doing something illegal, then it is not enforceable by law. 2. You are responsible if your buyer stops servicing the loan Remember how the vehicle stays registered under the seller’s name even after doing a sambung bayar? If you sold a vehicle to someone using sambung bayar, this means that if the buyer fails to pay for your loan, you have to pay for the loan instead or face the consequences - which affects your credit score, which then affects your ability to apply for loans in the future. As a side note, any summonses the buyer gets while driving the vehicle also get slapped on you. You’re put at a big loss since you have to foot a lot of responsibility, while someone else gets your car. But it doesn’t end here because if the person you sambung bayar-ed your car to stops paying and refuses to return the car… 3. You can’t report your vehicle as stolen That’s right. This is because you have voluntarily given your vehicle away to someone else. The definition of “theft” in our Penal Code is in Section 378, which says: “...intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property…” A buyer under sambung bayar does not dishonestly take your vehicle away, and you have also willingly given it to them, so you can hardly claim that your car has been “stolen”. The saving grace here is that you might be able to report it as a case of cheating, as has been clarified by the Home Ministry before. You’ll be relying on Section 420 of the Penal Code - “cheating and dishonestly inducing delivery of property”. This can be used in situations where, say, someone wants to use sambung bayar to buy your motorbike, and offers RM1,000 as deposit, but later does not make any payment for your loan at all (to cheat you into selling for a low ball price) As for the buyers under sambung bayar, they may have a few things to reckon with too. 4. Buyers never get the vehicle legally transferred to them While it might seem obvious, buyers are not protected by the insurance policy on a vehicle that is not in their own name. This is easily remedied by adding their name as a second driver on the insurance policy. But there’s another problem they need to worry about if the person who sold them the vehicle passes on. The vehicle gets inherited by the seller’s family. Remember that the bank still owns the vehicle until the loan is paid off. But when the loan is paid off, the ownership goes to the seller first since the vehicle is registered in their name. Now that they’re dead and unable to transfer the car title to you, their family will automatically get ownership of the car. If they come knocking on your door, you don’t have any real choice but to let them take the car back. That is assuming you were sold a legit car in the first place because... 5. You don’t know if you’re being sold a cloned car Many buyers using a sambung bayar scheme have found themselves in a lurch after finding out that they were sold cloned cars. One doctor from Alor Setar was a victim of such a scam back in 2015. These cloned cars can come with fake chassis registrations (or can even be unregistered) and duplicated number plates as well as a forged road tax. Victims usually only find out after being stopped by the Road Transport Department (JPJ) or when they try to renew their road tax by themselves instead of through their agent. Vehicles that are not properly registered can get confiscated by JPJ before being auctioned off by the Court. As the owner of the vehicle, you can also be convicted of an offence under Section 7 of the Road Transport Act 1987 for owning an unregistered vehicle, and you may be fined between RM2,000 and RM10,000. Cloned cars have been around a long time, since about the 1980s according to a car dealer from our sister company Carsome. You can read more about cloned cars on this article by CILISOS here. Only buy cars through legitimate means All these laws surrounding the sambung bayar practice really just boil down to one point: if you choose to forgo the responsibilities under law, you could also forfeit the rights and protection you would have gotten. No matter how lucrative a sambung bayar deal may look like, the long term costs and trouble are probably not worth any bargain you’re getting. In response to the doctor’s case we mentioned, Kedah’s JPJ Director, Amir Onn Mustapha has urged the public to bring any vehicles they intend to purchase to Puspakom or JPJ for inspections. According to him, it’s difficult for an untrained eye to tell if a car is legitimate just by looking at its exterior."
"Actually, why are there no lawyer advertisements in Malaysia? Have you ever wondered why lawyers don’t advertise their services or perhaps, you wondered why they still wear the black robes in court (read about here). Well, it is actually because lawyers have this “secret” conduct of code that they have to adhere to. These laws and codes of ethics bind them in everything they do, from advertising their services to how they should act in court, and even to how they charge their fees. This article will serve as a brief overview of what kind of rules apply to lawyers. And yes... There is a special law for lawyers The particular law that governs how the legal profession works is the Legal Profession Act 1976 (“LPA 1976”). To start it off, let’s look specifically at section 77 of the LPA: “(1) Without prejudice to any other power to make rules provided under this Act, the Bar Council may, with the approval of the Attorney General make rules for regulating the professional practice, etiquette, conduct and discipline of advocates and solicitors. (3) Any advocate and solicitor who fails to comply with any rules made under this section may be liable to disciplinary proceedings.” The Malaysian Bar is a like a club that all lawyers have memberships to – and you need to be part of it in order to practice. Within this, there is another body that is known as the Bar Council, which manages the Malaysian Bar.It’s a little confusing so for the purposes of our article, we will treat the Bar Council and the Malaysian Bar as one and the same. Section 77 tells us that the LPA empowers the Bar Council to make rules to regulate the conduct of advocates and solicitors (proper term for lawyers) in Malaysia and if any of them breaks the rules, they can be subject to disciplinary proceedings. With this power, the Bar Council (also known as the BC) has made a whole bunch of rules, and we will concentrate on two for this article: How lawyers should act with regards to you, the profession, the courts, and their opponents – Legal Profession (Practice and Etiquette) Rules 1978 (“LPPER 1978”) How lawyers should advertise their services – Legal Profession (Publicity) Rules 2001 (“LPPR 2001”) Without further ado, let’s start off with how public can lawyers be. Lawyers have strict rules on publicity The video above is a UK law firm’s advertisement found on Youtube. The LPPR 2001 basically lays downs rules that tell lawyers how they can publicise their services. An example would be how lawyers can’t put up random flyer ads around town, advertising their mighty advocacy skills. For this article we will look into rule 5, which states that a lawyer cannot claim to be a specialist or expert in any area of law and while they are allowed to be interviewed by the press, they cannot publicise their practice in a way that is contrary to the LPPR rules. This is best seen in the case of Muhammad Shafee bin Abdullah v Majlis Peguam (Bar Council) where the Bar Council fined a lawyer RM5,000 for the making certain statements, which the lawyer then appealed in court. The statements in question were made in an interview with The Star and they read as follows: “I can tell you that whenever I am a defence counsel, the AG Chambers always send, without a doubt, their best team against me. This is true. I am an authority in election law and there are very few of us in this country. I am also one of the world’s experts on extradition and mutual assistance cases.” – Tan Sri Dato’ Sri Dr. Muhammad Shafee Abdullah, Keeping Within The Letter Of The Law, The Star Newspaper, 27 September 2009 While the Federal Court found that the statements made were not in contravention with the LPPR, the fact that this case made it up all the way to the highest court in Malaysia shows how seriously the Bar Council takes their rules. This leads us to the question of the hour – why do lawyers need so many rules? The utmost rule is to uphold the dignity of the profession This is no exaggeration, it’s literally stated in rule 31 of the LPPER 1978: “Every advocate and solicitor shall at all times uphold the dignity and high standing of his profession.” This rule can be applied in an extremely general manner and it covers anything from serious issues, to yelling at each other in court and weird stuff such as not using your office to sell clothes...which actually happened. In Re An Advocate, a lawyer was disciplined for using his office as a showroom to sell ladies’ garments. The direct rule that was breached was rule 44 (which prohibits lawyers from carrying on businesses which are incompatible for an advocate and solicitor) but indirectly, this also breached rule 31. Aside from this cornerstone rule, the LPPER also lays down rules for how lawyers should act towards you and your case, how they should carry themselves in court, and how they will charge their fees (though this would be covered in depth in a separate article). How lawyers should treat you, the client A lawyer’s responsibility is to always accept any case that is offered to him unless he thinks accepting the case would lead to him being embarrassed, lose his professional independence, or a whole bunch of other reasons. These reasons are listed in the LPPER but this writer refuses to list them all down because she took law, not accounting. Instead, let’s illustrate when a lawyer should turn down a case by using...more cases. In AG v Arthur Lee, the lawyer represented his family’s company and the courts ruled that, as there was a personal relationship between the lawyer and the party in the case, the lawyer should have declined from handling the case because it would bring him embarrassment under Rule 3. This stems from the fact that lawyers don’t owe their ultimate duty to the clients (gasp!), they actually owe it to the court because above everything else, lawyers are officers of the court. Therefore, if an officer of the court fights on behalf of his family member in court, there will be a risk that the course of justice might be compromised. Aside from that, the lawyer has a duty to maintain confidentiality. Rule 35 reads: “(b) An advocate and solicitor shall preserve his client’s confidence and this duty outlasts his employment.” This means that a lawyer cannot divulge any of the information that you tell him in confidence and this lasts even after he has completed his job with you. It’s the legal equivalent of don’t kiss and tell. Now, let’s move on to… How lawyers should act in court Aside from maintaining a professional conduct towards you, the lawyer similarly has to maintain the proper professional conduct towards the court, his opponent, and the witnesses. Once again, there are a whole bunch of rules but if we could summarise it for you guys, it would probably be 2 main rules; don’t lie and don’t be rude. The case of Dato’ Wong Gek Meng v Pathmanathan Mylavanam tells us that solicitors must not do anything to deceive the court because their ultimate duty is to the courts. If a lawyer tries to conceal documents from the court, this might amount to a contempt of court (Cheah Cheng Hoe v Public Prosecutor). At the end of the day, it’s really all about how… With great power, comes great responsibility Lawyers are almost always in a fiduciary relationship with their clients. A fiduciary relationship basically works in this way – whenever you call upon a lawyer, you would depend on them fully to take responsible actions with regards to your money or assets and to act in accordance with your wishes. Since this places them in a position of great power, the rules are necessary to ensure that all lawyers act in a similar way and are held to similar levels of accountability and responsibility. [READ MORE: Here’s how you can sue or make a complaint about your lawyer in Malaysia] As we mentioned above, the few rules that we mentioned here barely start to graze the 70 odd rules that are contained within the LPPER 1978 and LPPR 2001 but we hope that this article serves as a good starting point for you guys and stay tuned for the next article which will talk about how lawyers are disciplined for their misconducts."
"Here are some laws Pakatan Harapan promised to reform. But what’s wrong with them? It’s a historic moment in Malaysian politics with Pakatan Harapan ousting Barisan National for the first time in 61 years. With this new government coming to power (that a lot of us still have a hard time believing happened), they made 10 promises in their manifesto to be delivered within 100 days of their election. But while we’re all watching to see if they can deliver on promises like abolishing GST, the Pakatan Harapan government has also promised to abolish certain “oppressive laws” that we have in Malaysia. Even if you don’t know which laws they are, you might have heard about some of them before such as the Prevention of Crime Act 1959, the National Security Council Act 2016, and of course - the Sedition Act. These were specifically targeted by Pakatan Harapan because they give the government too much power. As Dr Mahathir put it at a press conference: “Our stance is that when we form the government, we will repeal what is deemed oppressive to the people,” - Dr Mahathir, as quoted by The Star We spoke to lawyer Eric Paulsen from Lawyers for Liberty, who has also released a statement on this subject, to get at the finer details of these oppressive laws. To make sure we don’t take you on a roller coaster, we’ve put some of these laws into 3 main categories below. Laws that can be used to detain people without a fair trial Security Offences (Special Measures) Act 2012 (SOSMA) Eric Paulsen tells us one of the biggest problems with SOSMA is that it allows the prosecution to take secret evidence. Normally, evidence that is used against you in court will be cross-examined by your lawyer to look for inconsistencies and to challenge the evidence. With SOSMA, the prosecution is not required to even show the evidence in court - they just need to summarize what the evidence is and what it proves. The prosecution could invent a person or come up with evidence that doesn’t really exist, and you have no way of telling if it’s real. How can you challenge the evidence if you don’t know what it’s about? Prevention of Crime Act 1959 This law could be used to detain people for up to 21 days under Section 4, instead of the normal period of 24 hours before you must be brought before a Court. Furthermore, you can be detained for 2 years if the Prevention of Crime Board thinks it is necessary - and those 2 years can be renewed again… and again... and again... Prevention of Crime Act 1959 - Section 19A(1) “...direct that any registered person be detained under a detention order for a period not exceeding two years, and may renew any such detention order for a further period not exceeding two years at a time, if it is satisfied that such detention is necessary in the interest of public order, public security or prevention of crime.” The Prevention of Terrorism Act 2015 works similarly with a few differences. Pakatan Harapan has expressed in their manifesto that they will keep this law, though some of the draconian provisions in it will be changed. [READ MORE - These laws could be used to detain people without trial in Malaysia] Laws that can be used to silence the people Sedition Act 1948 The big bad law almost every adult Malaysian has heard of. There are a number of provisions in there that make it illegal to criticize the government, the justice system, the Rulers of each State and the Agong, and even certain provisions in the Constitution. This was a law enacted during a time when Malaysia was under Communist threat, and is probably not very useful in this day and age. We can find disagreement from the people pretty useful to keep our politicians in check and make sure the people are heard. Universities and University Colleges Act 1971 (UUCA) This law seems rather innocent like its name, but it actually gives the government the power to stop students from having “political party activities” on campus. This law also used to say that students can’t support or oppose any political party whether Malaysian or not, until Muhammad Hilman Idham challenged it in this case. But even after that, the UUCA still prohibits students from doing anything that supports or opposes “any society, organization, body or group of persons which the [University] Board determines to be unsuitable to the interests and well-being of the students or the University”. Printing Presses and Publications Act 1984 (PPPA) This law regulates the licensing of newspaper printers in Malaysia, but has a provision giving the Home Minister the absolute power to revoke or suspend licenses whenever he wants. It also says that the Minister can ban any printed material: “...which is in any manner prejudicial to or likely to be prejudicial to public order, morality, security, or which is likely to alarm public opinion, or which is or is likely to be contrary to any law or is otherwise prejudicial to or is likely to be prejudicial to public interest or national interest...” On what should be done instead, lawyer Eric Paulsen agrees with Pakatan Harapan that the PPPA should be abolished: “I think they should just abolish the entire PPPA because it is quite outdated. Newspapers should just be licensed administratively. If you want to open a shop, you should be allowed to, there shouldn’t be a provision saying ‘if you don’t listen to us then you have to close’. If the newspapers start writing things that incite racial hatred, then the Penal Code will apply.” - Eric Paulsen in phone interview with ASKLEGAL The Penal Code provision that Eric is talking about is Section 505 - “statements conducing to public mischief”, which covers making statements or spreading rumours with the intention to cause public fear or alarm, or incite people to commit crimes against others. The punishment is up to 2 years of prison and/or a fine. Anti-Fake News Act 2018 Our fake news law is very new, passed right before GE14. It’s not mentioned in Pakatan Harapan’s manifesto itself, but was brought up by Dr Mahathir in a press conference. While it’s seen as a much needed law which has been discussed in other countries, the problem with it is actually how broad the powers are, and how it can be used to accuse anyone who disagrees with the government. You can read more about it here. Eric Paulsen tells us that we don’t really need the fake news law because Section 233 of the Communications and Multimedia Act 1998 (CMA) and Section 505 of the Penal Code are sufficient with a few amendments. “Fake news is not a new phenomenon, it’s just an old one that is circulated on a new medium. People used to go around post boxes and put in surat layang - that was the fake news of the day. Today, people use social media.” - Eric Paulsen, in phone interview with ASKLEGAL [READ MORE - Here’s how you may get in trouble with Malaysia’s Fake News Law] And then there’s the NSC Act… Our National Security Council Act 2016 was passed with the official purpose of creating a specific set of rules and operating procedures for the National Security Council (NSC). The NSC has existed since the May 1969 riots, but this law actually gives the Prime Minister A LOT of power - the power to declare an emergency in a space as small as your bedroom up to the entire country, and even bypass the Agong’s approval which is usually required to declare an emergency. It pretty much gives the Prime Minister the absolute power to declare martial law anywhere in Malaysia. With those kinds of powers, it’s no surprise Pakatan Harapan has named it as one of the laws they want to revoke in their manifesto. Some of these laws will be revoked, and some will be revised When you revoke a law, it means that you take it down entirely, usually because it is no longer applicable to the times, or because there is a new law replacing it. In legal speak we call it “repealing a law”, and it must be agreed to by a majority of Members of Parliament (MPs) as per Article 62 of our Federal Constitution. However, some of the laws listed for change by Pakatan Harapan are useful to us, but have some provisions in them that give the government too much power or too much discretion. Those provisions will be removed to help the people keep the government in check. Keep in mind that none of these laws have been repealed or amended yet at time of writing (16th May 2018), so look forward to these changes, but keep watch over our government to make sure they really happen. As the English politician Lord Acton once said: power corrupts, and absolute power corrupts absolutely."
"5 legal ""lifehacks"" to win a lawsuit faster in Malaysian courts. Suing someone is such a hassle – from hiring a lawyer to digging up all the information that you need to pass over to the lawyer, to attending boring court proceedings... it all takes up so much time and costs. What’s worse is when a court case drags on for months. It’s like every other aspect of your life moves on but you are stuck on that one court case, seeing your opponent and dealing with legal jargons that you would very much like to never see again, thank you very much. Let’s not even get started on the amount of money involved. The amount of money needed to retain a lawyer or worse, the amount of money that your opponent owes you which you can’t get because there is no judgment yet. But what if we tell you that there are actually five ways to get your judgments faster, so fast that if this was a game, there is no cow level. The procedures for these five ways can be found in the Rules of Court 2012 – which are not laws (in the strictest sense) but are “guidelines” meant to help guide civil court proceedings. To kick it off, let’s look at the first one. 1. You can “strike” off your opponent’s case This is called a striking out procedure and it is found in Order 18, Rule 19 of the Rules of Court 2012 (“ROC 2012”). This procedure can be used when your opponent’s pleadings (basically, their arguments), fall under one of the following categories: Has no cause of action or defence (meaning no reason to sue or proper defence) It’s scandalous, frivalous, or vexatious It may prejudice, delay or embarrass the process of fair trial If it’s an abuse of the court process The four categories above are drafted pretty widely because they are meant to encompass anything, as long as you can convince (satisfy) the court that your opponent’s arguments fall under it. For example, if someone you are suing for a breach of contract suddenly argues that you are a playboy, you can apply to the court to strike his argument on the basis that it is scandalous because whether or not you’re a playboy has nothing to do with the case at hand. Another example for abuse of process is when you’ve already kicked out your opponent’s case in another court but he sues you again for the same thing in a separate court. Then, you can tell the court that your opponent is being a prat and trying to manipulate the court system. It’s the equivalent of your mum saying no to borrowing the car, so you ask your dad without telling him that mum has already said no. 2. You can get your money WITHOUT going to trial Wait, what? Doesn’t that sound like an insta-win? But it doesn’t seem to make sense because, logically, you cannot get a judgment before your case has been heard by the judge, in a trial. However, Order 14 is one of the few exceptions to this where it allows you to get a summary judgment without trial. Order 14 reads: “Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part thereof except as to the amount of any damages claimed, apply to the Court for judgment against that defendant” Breaking down that wall of text, it tells us this – you can apply for a judgment from the court when your defendant has no defence to your claim. The requirements for applying for such a judgment can be found in the case of National Company for Foreign Trade v Kayuraya Sdn Bhd but for the purposes of your soul (and mental stability), we won’t delve into the lawyer-y aspect of it. On the other hand, it would suffice for now to explain that the reasoning behind allowing such a judgment. This was explained in the case of Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd which tells us that Order 14 can only be used in very clear cases, where there is no defence. The main reasoning behind it is to prevent a plaintiff (person suing) who is clearly entitled to the money, from not getting his money. Basically, if you sue someone for breaching a contract and it is very clear that your opponent did breach the contract, Order 14 allows you to get the damages without going through a lengthy trial process. 3. You can even make your opponent do something This is found in Order 81 is sort of the counterpart to Order 14 (mentioned above) except it can be used for specific reliefs. Generally, a “relief” is the thing you’re suing for. While most people are familiar with the idea of relief being monetary compensation, it can also be in the form of the court compelling someone to do something – called specific relief. For example: Roti enters into a sale and purchase contract to buy a house from Bakar. Roti pays Bakar the 10% deposit. Bakar then decides that he no longer wants to sell the house. He returns Roti his 10% deposit and offers him compensation. Roti, however, is so in love with that house that he wants Bakar to sell it to him. Roti then sues for specific performance, to make Bakar comply with the contract. Order 81 allows you to seek judgment for performing (following through with) contracts or getting your deposit back under a contract with the condition that you must prove to the court that your opponent has no defence to your claim. 4. If you “lost” your land and need it back quick Order 89 is known as summary proceedings for the possession of land – in regular speak meaning if you lost possession of your land and need it back stat, you rely on Order 89. Order 89 reads: “Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.” As explained by the case of Bohari bin Taib v Pengarah Tanah dan Galian Selangor, you can only use Order 89 when you are dealing with squatters on your land; not for anything else. This is because if it involves a tenant who has stayed on too long, for example, the added factors become important issues to be determined by the court using evidence at trial and cannot be dealt with summarily. 5. One question to rule with them all Dramatisation and copyright aside, the last way to get a quick win is where a court can dispose the entire case by just determining a question of law or construction of any document (basically the meaning of a clause within the document). In short, Order 14A can be used when there is one main question to answer, and by answering that question, the courts are able to wrap up the entire case. Yep. To say that again, the success or failure of your entire case hinges on just one question. We’ll provide the cases below, but to break it down for you guys, in order for the court to grant you an Order 14A application, they must decide if “answering” (deciding on) that question would solve the entire case or, at the very least, a substantial part of the case. Basically, that question must form the very cornerstone, the crux of the dispute between you and your opponent for an Order 14A application to be allowed. An example of such a situation could happen is as follows: Ali and Abu enter into a contract. Ali thinks that Law ABC applies to the contract but Abu disagrees and refuses to execute the contract in accordance with Law ABC. Ali sues Abu and his question to the court is whether Law ABC applies to their contract. Since the question is the crux of the dispute and can solve the entire case, the courts will allow an Order 14A application. Order 14A is explained a bunch of cases such as Lekaz Construction Sdn Bhd v KOP Petroleum, Petroliam Nasional Bhd v Kerajaan Negeri Terengganu, and Low Chee & Sons Sdn Bhd v Extreme Systems Sdn Bhd but we’re pretty sure you’ve already skipped this part. But as always, talk to a lawyer! Well, there you have it folks. Ranging from being good commercial sense to not delaying justice, these 5 ways can make a court experience much more palatable. As always, to know whether you can fall under any of these expeditious methods, it is best to speak to a lawyer and explain the nuances of your situation."
"4 undang-undang yang selalu disalah anggap oleh pemandu di Malaysia Subjek undang-undang bukanlah satu benda yang kita boleh belajar di sekolah, malah subjek tu takde pun dalam silibus. Tapi kebanyakan undang-undang yang kita tahu pun sebab ibu bapa/kawan/cikgu yang beritahu, tambahan lagi undang-undang boleh diubah dalam Parlimen. Jadi tidak hairanlah kalau ada undang-undang Malaysia yang telah disalah anggap oleh segelintir masyarakat. Untuk artikel ni, kami akan memperlihatkan 4 “mitos” undang-undang yang berkaitan dengan memandu, seperti… 1. Memandu sambil menggunakan lampu kecemasan semasa hujan Ini merupakan satu kebiasaan untuk sesetengah pemandu apabila mereka memandu ketika hujan lebat, dimana lampu kecemasan (iaitu ketika kedua-dua signal) menyala. Menurut buku panduan JPJ, lampu kecemasan hanya boleh digunakan apabila kenderaan anda berhenti dalam keadaan kecemasan (misalnya enjin roask ataupun tayar pancit) dan tidak sama sekali sewaktu memandu. Kalau hujan lebat, hanya perlu membuka lampu besar. Kalau sedang ber-konvoi, undang-undang biasa masih berkuatkuasa jadi bolehlah dikatakan tak patut juga. Kalau nak uji pengetahuan anda boleh cuba kuiz peraturan memandu kita di sini – dah free satu jawapan pun! [QUIZ: How well do you know Malaysia’s road rules?] 2. Menjawab soalan polis jika diberhentikan sewaktu sekatan (roadblock) Kalau anda memandu, pasti confirm anda mempunyai pengalaman diberhentikan oleh polis, tak kisahlah tengah memandu atau sewaktu roadblock. Secara asasnya pihak polis mempunyai kuasa untuk menahan atau memberi arahan seperti memberhentikan kereta jika terdapat alasan yang munasabah (Reasonable grounds). Dari situ kuasa polis terhad kepada meminta IC dan lesen memandu, serta menanya soalan lazim seperti nama dan alamat. Soalan selajutnya anda boleh menolak atau berdiam diri jika jawapannya mungkin mendedahkan anda kepada kesalahan jenayah sesuai dengan Seksyen 112(2), Kanun Prosedur Jenayah (Tiada penterjermahan rasmi) : ""…[Orang yang diperiksa] hendaklah menjawab semua soalan yang dikemukakan kepadanya oleh Pegawai itu; Dengan syarat bahawa saksi itu boleh menolak daripada menjawab jika jawapan itu akan menyebabkan ia dibabitkan pada sesuatu tuduhan jenayah atau penalti atau perlucuthakan."" Sebagai bonus, polis memang berkuasa memeriksa kenderaan anda tanpa waran, terutamanya sewaktu operasi sekatan jalanraya. Kami ada tulis tentang undang-undang ni lebih mendalam, tekan link di bawah untuk baca lebih lanjut. [BACAAN LANJUT: Bolehkah PDRM memeriksa kenderaan anda sewaktu menjalankan sekatan jalan raya?] 3. ‘Sambung bayar’ untuk kereta second-hand Bagi yang tak tahu, ‘sambung bayar’ merupakan sejenis pembayaran kereta di mana pembeli second-hand akan membayar wang bulanan kepada pembeli atas dasar percaya atau tanpa kontrak rasmi. Kaedah ‘sambung bayar’ ni digunakan oleh pembeli yang tak layak mendapat pinjaman bank ataupun tidak memiliki wang yang cukup untuk membayar deposit kereta. Masalahnya ialah kereta tu masih dibawah nama pembeli asal, jadi bila pembeli ‘sambung bayar’ ni hentikan pembayaran, yang kena adalah pembeli asal sebab semua dokumen dan pinjaman bank masih dibawah namanya. Tapi pada tahun 2017, kerajaan telah mengambil keputusan tegas mengenai sistem tersebut. Kementerian Dalam Negeri menyatakan bahawa ‘sambung bayar’ merupakan satu kesalahan di bawah Seksyen 38 Akta Sewa Beli 1967 (tiada versi BM rasmi) dan kalau kantoi boleh dikenakan denda RM30,000 atau penjara tiga tahun atau kedua-duanya sekali. Bukan tu saja, tapi pihak polis akan masuk campur jika terdapat unsur-unsur penipuan, dimana tuan kereta dan ‘pembeli’ mungkin boleh di siasat bawah Seksyen 420 Kanun Keseksaan (tiada versi BM rasmi). 4. Pembaharuan cukai jalan Kereta Semenanjung di Sabah/Sarawak Lagi satu trivia untuk pemilik kenderaan, kadar cukai jalan yang dikenakan di Sabah dan Sarawak sebenarnya adalah lebih rendah berbanding Semenanjung. Malah di Malaysia terdapat beberapa zon berbeza untuk harga cukai jalan iaitu Semenanjung, Pulau Langkawi, Pulau Pangkor Labuan, dan Sabah serta Sarawak. Jadual dari JPJ boleh dilihat di sini. Perbezaan ketara ni telah dijelaskan oleh Pengarah Jabatan Kejuruteraan JPJ, Datuk IR HJ Mohamad Dalib dari interview dengan Paultan.org, berkata bahawa disebabkan perbezaan geografi yang berbeza, penduduk Sabah dan Sarawak memerlukan kenderaan yang sesuai untuk pengunaan seharian. Oleh itu, kerajaan telah mengambil inisiatif dengan memberikan harga cukai jalan yang murah untuk menggantikan infrastruktur jalan yang kurang di sana. “Keadaan geografi di sana, jarak perjalanan serta tahap kemudahan dan prasana jalan raya yang disediakan (oleh kerajaan) adalah sangat berbeza. … Dalam keadaan ini, boleh pandu Kancil? Boleh, tapi hanya di kawasan bandar. Jadi, mereka perlukan kenderaan pacuan empat roda misalnya, yang jauh lebih mahal berbanding Kancil. Dan struktur cukai jalan ini antaranya bertujuan untuk timbal balik (compensate) segala kekurangan yang ada itu” – Datuk IR HJ Mohamad Dalib, dipetik dari Paultan.org Untuk pemilik kereta yang didaftarkan di Semenanjung, jangan pula fikir nak jimat duit dengan memperbahurui cukai jalan kereta anda di Sabah atau Sarawak sebab ini melanggar undang-undang Seksyen 24 Akta Pengangkutan Jalan 1987. Seksyen 24(1) Akta Pengangkutan Jalan 1987 – Mendapat kembali fi: Jika apa-apa fi yang kena dibayar di bawah Bahagian ini masih belum dibayar selepas satu bulan dari tarikh fi itu patut dibayar, atau jika fi yang telah dibayar kurang daripada amaun yang sepatutnya, maka Pengarah hendaklah mengeluarkan suatu notis menghendaki orang yang ingkar itu supaya membayar amaun yang kena dibayar itu dalam tempoh empat belas hari dari tarikh notis itu. Jika didapati bersalah, anda akan dikenakan denda RM2,000 dan mungkin kena membayar perbezaan cukai tersebut. Bukan itu saja, kereta anda mungkin akan kena impaun seperti kes pemandu Rolls Royce ini."
"How do royal pardons work in Malaysia? If you thought that criminals cannot be released for the duration of their sentence after they have been found guilty, you are technically not wrong. That is, if you look at the criminal justice system in a singular line. Before we dive into the realm of royal pardons, let’s take a look at how a typical criminal process works (after the finding of guilt and so on, which we have covered here and here). One court’s guilt can be another court’s innocence This doesn’t mean that the judges from different courts fight with each other and give out confusing, conflicting judgments. On the other hand, it simply means this – most criminal cases start in the Magistrates Court. If the Magistrates Court finds you guilty of a crime, you can still appeal that decision to court next on the hierarchy and that court can reverse the decision (find you innocent) or still find you guilty but decide that your sentence is too heavy/not heavy enough. An appeal can happen all the way to the apex court (the highest court) and depending on which court you started in, the apex court can either be the Court of Appeal of the Federal Court. To make things simple, let’s take a look at these two examples: Ali commits a crime and is charged in the Magistrates Court The Magistrate finds him guilty of the crime and sentences him to 5 years in prison Ali appeals his case to the High Court The High Court finds that Ali is not guilty and releases him Ali commits a crime and is charged in the Magistrates Court The Magistrate finds him guilty of the crime and sentences him to 5 years in prison Ali appeals his case to the High Court The High Court decides that Ali is guilty but his sentence is too heavy and reduces his sentence to 3 years in prison In essence, you (as the accused) can appeal against the judge’s decision if you are unhappy about it and this right to appeal takes you all the way up to the highest court. After the apex court, the right to appeal ends because of the simple principle of how there must be finality in decisions. However, like everything else in law, there are general rules as well as exceptions to said general rules. The exception in our criminal system of appeals is… The Yang di-Pertuan Agong’s power As we all know, being royal gives you certain perks (like how the Queen of England has flocks of Corgis around her) and this is no different for the Yang di-Pertuan Agong of Malaysia. Aside from being the supreme head of the Federation, the Agong also has certain powers such as the power to elect the Prime Minister of Malaysia, the power to declare a state of emergency in Malaysia, and so on. More importantly, for the purposes of our article, let’s take a look at what Article 42(1) of the Federal Constitution says: “The Yang di-Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by court-martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and the Ruler or Yang di-Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State.” We know that no one likes reading and deciphering huge chunks of text so in essence, this is what it says: The Agong has the power to grant pardons for all offences committed in KL, Labuan, and Putrajaya The Sultan of each State has the power to grant pardons for all offences committed within his State Back in 2018, this is how the Agong has the power to grant a pardon to Anwar Ibrahim and release him from prison. However, reading Article 42(1) alongside Article 42(4) and Article 40(4)(a) seems to indicate that the Agong has to exercise this discretionary power in line with the advice from the Parole Board. This is different from what has been interpreted by the courts which say that the Agong uses his discretion alone to decide on who to give a pardon to and it is his discretion to take the advice of the Parole Board or not. Fantastic! How do I get a royal pardon then? Well...there aren’t any set guidelines or regulations or rules or procedures to follow, really. The Agong simply decides who and when and how he wants to give out royal pardons. This also means that the Agong does not act in a judicial capacity (he is not a judge) when giving out royal pardons. It is simply on the basis of his standing as an Agong that gives him such powers. Since the Agong is not acting as a judge while making this decision, he has more room to take things which the courts cannot take into account. For example, when finding guilt and passing sentences, the courts have to act in accordance with set principles and based off proved evidence but the Agong can take this one step further and act in the overarching interest of justice, public interest, and conscience. In essence, the royal pardon is simply a vestige of the powers of the monarchy from the olden days when the kings were all powerful. It’s also present in other systems of governance as well, such as the power for a US president to grant a “Presidential Pardon” granted through the US Constitution. Getting a pardon is sorta like getting a second chance Some of you might think that this is a no-brainer because a release from prison is a second chance at life, but we are referring to something more than the sweep of fresh air across your face and all the fast food you can buy. The effect a pardon has is to...remove all legal punishment for the offence and remove any disqualifications. If you are confused as to what this means, it just means that you no longer have to sit through your 12 years as a prisoner and if the prison sentence prevented you from anything before, it no longer has that effect today. For example, under Article 48(1)(e), a Malaysian is disqualified from being a member of Parliament if he has been sentenced to at least one year in prison and has not received a pardon: “...he has been convicted of an offence by a court of law in the Federation...and sentenced to imprisonment for a term of not less than one year or to a fine of not less than two thousand ringgit and has not received a free pardon...” Not just that, he would be barred from becoming an MP or a Senator for 5 years upon his release (Article 48(3)) unless he received a royal pardon. So in the case of Anwar, receiving that royal pardon doesn’t just grant him freedom from prison, but also the freedom to once again be an MP without that 5 year ban. There you have it, folks. The nuances of a royal pardon are pretty direct but of course, don’t go committing crimes because pardons are pretty hard to come by."
"Sendirian Berhad companies exist today because this man won a lawsuit in 1893 [Klik sini untuk versi Bahasa Malaysia] When you wake up in the morning, what products do you use? Chances are, some of those products were made or imported by a company formed in Malaysia bearing the suffix “Sendirian Berhad” (Sdn Bhd). You’ve probably wondered this before: what does Sdn Bhd even mean? “Sendirian Berhad” means that the company is privately owned (Sendirian), and has what is known as “limited liability” (Berhad). This comes from the fact that any company with a “Berhad” is considered as a “person” by the law. Wait, what? How can a company be a person? In company law, a corporation is what we call a separate legal entity. Basically, a company is considered as a “person” in the law, and it has its own rights and liabilities. On the other hand, “limited liability” is a concept that makes the shareholders of a “Berhad” company not responsible for the company’s debts and obligations. Their maximum liability is limited to however much money they paid to buy their shares in the company - this is where the “Berhad” comes from. If you’d like to know more about how this works, the details are in our previous article here: [READ MORE - If a Malaysian company that owes you money goes bankrupt, can you sue the boss to get it?] Separate legal entity is an old rule that we still use today in our company laws. As stated in Section 20 of the Companies Act 2016: “A company incorporated under this Act is a body corporate and shall - 1. have legal personality separate from that of its members; and 2. continue in existence until it is removed from the register.” But there’s a story behind how this rule came to be. You see, the rule wasn’t always understood by everyone, even by the court judges themselves, which led to a long drawn dispute back in 1893 - the case of Aron Salomon v Aron Salomon and Company, Limited. Meet Aron Salomon, bootmaker Aron Salomon was a man from the UK who traded in leather and manufactured boots to be sold. He was a family business type of guy, and he’d been through his fair share of ups and downs, but a wife and 5 kids weren’t easy to provide for. Despite that, Aron Salomon managed to make his business prosper, making enough to support his family, with enough leftover to build his business capital. He decided to form a company with liability limited by shares with his family in late July of 1892. The Companies Act 1862 at the time required at least 7 people to own a company together, so he had just enough family members to do that. After the administration work was done, “Aron Salomon and Company, Limited” was born. There were a few transactions that happened after that which can get a little confusing. But long story short, Aron Salomon sold his business to “Aron Salomon and Company, Limited” - which is made possible because of the separate legal entity concept we discussed earlier. Just to make sure you understand who owns what here: There are two “people” - Mr. Salomon and “Aron Salomon and Company, Limited” (we’ll call it “the Company” from now on) Mr. Salomon + his family own shares in the Company Mr. Salomon also owns a leather and boot business Mr. Salomon sold his leather and boot business to the Company Mr. Salomon (the man, not the company) got a special class of shares from the Company called “debentures” in return for his leather and boot business. Debentures are special because whoever owns them gets first priority over all over shareholders and creditors to get their money back if the Company goes bankrupt. (this will be important for what happens later) But alas, nothing lasts forever Using his debentures as collateral, Aron Salomon got a loan from a guy named Edmund Broderip, at an interest rate of 8 percent. Things went well for Mr. Salomon and his Company for a while, but after some downturns in the boot trade, Mr. Salomon failed to pay Mr. Broderip for the loan. So in September 1893, just a little over a year after the Company was put together, “Aron Salomon and Company, Limited” was liquidated to pay back its creditors. If you’re not familiar with the term, “liquidated” basically means that all the company’s belongings were sold off to pay its debts, and it ceases to exist after that. The problems began here. A liquidator was appointed by the creditors to handle the dues and make sure the creditors would get back however much money was still left. Remember those debentures Mr. Salomon owned? Mr. Salomon redeemed his debentures (which gives him priority) and paid Mr. Broderip back, settling the loan. There was only a balance of £1055 left after, but the other creditors of the company still needed to be paid a whole £7733. Displeased and wanting their money back, the unpaid creditors got the liquidator to sue Mr. Salomon in the name of the Company. They claimed that the debentures were issued to commit fraud against the creditors, so that the money that went to Broderip and Salomon should have went to the unpaid creditors instead. From here, things didn’t go well for Mr. Salomon at all. The lawsuit got appealed. Twice. The case was first heard in the High Court. The judge agreed with the liquidator, and said that Mr. Salomon only created the Company so he could run his business and take all the profits without taking the risks. They believed that Mr. Salomon got his debentures through cheating - the liquidator accused Mr. Salomon of selling the leather and boot business at an exorbitantly high price. So it was ordered that Mr. Salomon should pay the creditors out of his own pocket. Mr. Salomon, being unhappy with such accusations, appealed the case. But this was in vain. The Court of Appeal also thought that Mr. Salomon abused the privileges of having a limited liability company. They said that he was abusing his family members’ names to meet the 7 shareholder requirement, so he could create a company under his control, while hiding from having to pay his creditors. The Court of Appeal therefore also ordered that he should pay up for what the Company owed. There was but one appeal left, to the highest court in the UK - the House of Lords (now known as the Supreme Court) before the decision was final and Mr. Salomon would be pretty much ruined from having pay a huge sum to the Company’s creditors. Lucky for him, it turned out that the High Court and the Court of Appeal had gotten their law all wrong. Mr. Salomon got his justice in 1896 We risk oversimplifying the case here, but in essence, what happened was that the learned judges of the High Court and Court of Appeal didn’t quite understand the law correctly, and so they came to the wrong conclusions. If you remember from earlier, the Court of Appeal concluded that Mr. Salomon was merely using his family members as puppets to fulfill the 7 shareholder requirement, and there was an accusation of overvaluing the leather and boot business which had to be addressed. The House of Lords found that the evidence showed that Mr. Salomon’s family knew exactly what was going on and agreed to their names being used, and more importantly, the Companies Act 1862 of the time did not make this kind of arrangement illegal. As for the high price of the leather and boot business, the actual price did not matter because as long as the Company was not being lied to and willingly agreed to the price, then there was no cheating. From that, the House of Lords decided that “Aron Salomon and Company, Limited” was indeed a separate “person”, and it alone was responsible for its own debts, not Mr. Salomon. It sounds all fair and good for Mr. Salomon, but what about his creditors who have to accept that they lost a lot of money? At this point, you might be asking… Why should company owners be allowed to limit their liability? When people set up companies, they usually have to invest some capital to get the company going. The amounts can range wildly, but they tend to be sums of money that most people can’t afford to lose in one go. This is where a company with limited liability comes in. One way to think of a Sdn Bhd is like an insurance policy. Let’s say you need RM200,000 to start a company with your friends. You and your friends can pool your money together for that. And if something does goes wrong, you only lose the money you put into the company (which is how much of your money you were willing to risk), but nothing more than that. If you had been forced to fork out the entire capital by yourself, you would probably lose your life savings and become a bankrupt. But more importantly, if things go very wrong, you and your friends (the business partners) may have to pay the creditors using your savings, and maybe even your house and car. If it was that risky to start a company, not many people would do it, and with only a few companies, that means less economic and job growth as a whole. To solve that problem, lawmakers decided to give people a way to make sure that if their first business venture failed, they would not have to pay the mountain of debts out of their own pocket. So that’s why we decided that companies are also people. It’s a way to operate your business while making sure if things don’t work out the way you planned, your entire life’s savings and personal property are not at stake. It’s a big reason why people sometimes prefer setting up a Sdn Bhd instead of a sole proprietorship or a partnership. [READ MORE - Which Malaysian business entity should you set up for your business?]"
"5 ways one new law is protecting Malaysian children from sexual abuse Pedophilia and sexual assault on minors is not an issue many people would want to read about or acknowledge. However, it’s something that does happen in Malaysia, with recent examples being the results of R.AGE’s “Predator in My Phone” coverage, where undercover journalists revealed how Malaysian adults were using messaging apps to proposition minors for sex; as well as the case involving Richard Huckle, who was sentenced to 23 life sentences after being found guilty of abusing 191 children in Malaysia. While our Penal Code does have some limited protection for minors such as Section 375 which prohibits the rape of a minor or Section 377E that prevents anyone from causing a child under 14 to commit indecent acts – it’s also a really old law that isn’t enough to protect minors from other aspects of sexual crimes such as grooming, molestation and child pornography. In view of this, the government decided to draft a new law specifically dealing with this issue, in the form of the Sexual Offences Against Children Act 2017. It’s also worth mentioning that this was a rare time in which the Bill (proposal for the law) received unanimous support from both sides of the political divide when it was tabled in Parliament. Here are some ways this new law has improved how children can be protected against child sexual abusers (and effectively punish them). 1. You cannot be involved in child pornography (in any way) Section 4 to 10 of the Sexual Offences Against Children Act 2017 is concerned with production, distribution, and viewing of child pornography. What actually amounts to child pornography is laid down in Section 4, which broadly covers all forms of visual, auditory, or written media. Thus, it would not only include pornographic videos or pictures, but audio clips and written documents as well. Section 4(a) defines child pornography as: (a) “child pornography” means any representation, whether visual, audio or written or the combination of visual, audio or written, or by any other means— (i) of a child engaged in sexually explicit conduct; (ii) of a person appearing to be a child engaged in sexually explicit conduct; (iii) of realistic images of a child engaged in sexually explicit conduct; or (iv) of realistic images of a person appearing to be a child engaged in sexually explicit conduct; This means that the law doesn’t just include a child engaged in sexual activity, but someone appearing to be or portraying a child as well. Meaning, a 21 year old who impersonates a child engaged in sexual activity would be caught under this definition. It should also be noted that animations or drawings which appear to be realistic depictions of minors engaged in sexual activity would fall under this definition as well. Let’s take a look at how this is applied in terms of... Making child pornography Section 5 prohibits any form of involvement in the making of child pornography while Section 7 prohibits using a child to produce child pornography. To illustrate, let’s use the following example: Kumar signs up his 13 year-old daughter to appear in a child pornographic video directed by Ali. Ali accepts the offer and hires (adult-aged) Kevin to also act in the video while Chong is hired to edit in post-production. In this scenario, Kumar, Ali, Kevin, and Chong will be charged under Section 5 for being involved in the production of child pornography and be sentenced up to 30 years in prison and at least 6 strokes of the cane. Kumar and Ali will also face an additional charge under Section 7 for using a child in a pornographic film and be sentenced up to 20 years in prison plus at least 5 strokes of the cane. Distributing child pornography With regards to the distribution and reproduction of child pornography, Section 8 of the Act states: Any person who— (a) exchanges, publishes, sells, lets for hire, distributes, exhibits, advertises, transmits, promotes, imports, exports, conveys, offers or makes available, in any manner, any child pornography; (b) obtains, collects or seeks any child pornography; or (c) participates in or receives profits from any business that he knows or has reason to believe is related to any child pornography, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding fifteen years and shall also be punished with whipping of not less than three strokes. In short, as long as you’re found anywhere along the distribution chain – whether as someone who downloads, shares, or sells – you’ll be facing up to 15 years in prison and at least 3 strokes of the cane if found guilty. The law also covers people who participate in or makes an income from a child pornography-related business. Let’s say Eric is an administrator of a child pornography website. Although he is only an admin maintaining the website and does not actually make child pornography, he is still guilty of an offence under Section 8 for knowingly making child pornography available. Accessing/watching child pornography With regards to those who try to access child pornography, Section 10 states: Any person who accesses, or has in his possession or control, any child pornography commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten thousand ringgit or to both. If you knowingly visit a website containing child pornography, you are obviously guilty of an offence under Section 10. However, there are instances which are not so clear cut. Take for example, you receive an email with an attachment that contains child pornography. You do not know that it contains child pornography and upon opening the attachment you immediately delete it, you are not guilty of a Section 10 offence. However, if you continue viewing the attachment (or save it elsewhere) you will be guilty of a Section 10 offence. 2. You cannot sexually groom a child Child grooming occurs when an adult befriends a child and creates an emotional connection with the intent to sexually abuse the child. This is broken up into 3 sections, roughly summarized as communication, grooming, and meeting in person. Section 11 prohibits any form of sexual communication with a child, or encouraging a child to have a sexual communication. However subsection 3 states that an exemption is made if the communication was for the purposes of science, medicine, or education. Section 12 makes it illegal to communicate – or pretend to be someone else to sexually communicate – with a child, even if they never actually meet in person. This also includes communication for the reasons stated in the previous points (Section 5 and 7) and more. Any person who communicates by any means with a child with the intention to commit or to facilitate the commission of any offence under section 5, 6, 7, 8, 14 or 15 or any offence under the Schedule against the child commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding five years and shall also be liable to whipping. To illustrate further: An adult tells a child, “I am shooting a film, and I want you to be the star of that film!” and it turns out that film is pornographic = GUILTY. An adult sends a text to a child “Hey, why don’t you come over to my house tonight”, with the intention of molesting the child = GUILTY. Section 13 describes the situation when the adult actually meets up with a child. Basically, it’s the type of communication mentioned in Section 12 plus actually taking steps to meet the child. As an example, an adult man pretends to be a 14 year-old boy in order to develop an online relationship with a 13 year-old girl. He then arranges to meet her in the mall with the intention of consumating the relationship somewhere else. This is an offence under Section 13 and is punishable with up to 10 years in jail and whipping. 3. Sexual assault can be physical or non-physical Section 14 covers physical sexual assault on minors, which involves not just touching a child, but also in getting a child to touch you, someone else, or even themselves. What’s interesting though, is that it makes a distinction between merely touching a child and touching a child for sexual purposes – which will be determined by the court through the circumstances involved, such as the extent, where the touching occurred, and others. With regards to non-physical sexual assault of children, these are highlighted in Section 15. Basically, non-physical sexual assault is where an adult exposes a child to sexual or indecent situations. It’s a pretty long section, but these situations can be roughly summarized as: Any lewd sounds, gestures, or exposed body parts that is intended to be seen or heard by the child Exhibiting the child’s body (or parts of the body) to others Constantly following, watching, or contacting a child Showing or involving a child in something that’s sexual (including watching porn) 5. Extra punishment if you’re someone the child trusts Although we were unable to find local statistics, other countries have reported that many sexual abuse cases against children are actually carried out by a person that they trust – such as a guardian, parent, or teacher. In the US, it’s claimed that 93% of abused children know the perpetrator, while the UK has seen an 82% rise in abuse cases involving those in positions of trust in 2014. The rise in reports can be attributed to general awareness among children, adults, and the authorities; as these cases have been mostly unreported or not taken seriously in the past. This is also recognized by our lawmakers, and Section 16 of the Sexual Offences Against Children Act allows the court to sentence someone who is in a position of trust with the victim up to 5 years in prison and at least 2 strokes of the cane on top of whatever punishment had already been given to them. To add perspective into how this law applies, a stranger who sexually assaults a child would be guilty of a section 14 offence. However a teacher sexually assaulted a student, the teacher would be guilty of a section 14 offence and a section 16 offence. Again, the full list is in the Act itself, but “positions of trust” would cover relationships including teacher-student, doctor-patient, parent-child, relative-child and so on. You can be punished for not reporting abuse Previously, if anyone tried to groom a child to sexually assault them, they would actually have to assault the child first, in order to be charged with a penal code offence. However, we can now actually stop that from happening at the grooming stage. But any law is only as effective as its enforcement and, for that to happen, members of the public also play a role in reporting any abuse (or suspected abuse) to the authorities as soon as they can. It’s no longer a case of “not my business” or “I don’t want to get involved” for two reasons. The first is that the physical and psychological damage from abuse often affect victims for life. And the second is that Section 19 of the Sexual Offences Against Children Act makes it an offence to not report abuse (or intention to abuse) to the police – which comes with an RM5,000 fine. If you are a victim or know someone who’s in need of help, either make a police report or contact the following NGOs for further advice and assistance: Protect and Save the Children – +603 7957 4344 / 7956 4355 Women's Aid Organisation (WAO) – +603 7956 3488 All Women's Action Society (AWAM) – +603 7877 4221"
"5 Perkara asas yang anda harus ingati semasa mengundi pada PRU14 Rasa tak bahangnya? Itulah bahang keghairahan musim pilihanraya, di mana hari mengundi Pilihanraya Umum Ke-14 (PRU14) akan menjelang tiba tidak lama lagi. Tidak kira sama ada anda mengundi buat kali pertama ataupun kali ke-14, anda harus ingat beberapa perkara asas yang patut anda patuhi tatkala anda bersedia untuk beratur di stesen mengundi pada 9hb Mei, 2018. 1. Berpakaian sopan Berita mengenai etika pakaian semasa membuang undi kini telah tersebar luas, namun Suruhanjaya Pilihanraya (SPR) telah mengesahkan bahawa berita-berita ini adalah palsu dan tiada pengundi akan dihalang dari mengundi jika mereka berpakaian sopan – dan selipar patut di antara pakaian yang dibenarkan. “SPR tidak pernah dan tidak akan menghalang pengundi dari memasuki stesen mengundi asalkan mereka berpakaian sopan” – Tan Sri Mohd Hashim Abdullah, Pengerusi SPR, dipetik dari The Star, diterjemah oleh ASKLEGAL Akan tetapi, anda akan dihalang dari mengundi jika anda memakai pakaian yang mempunyai nama calon, lambang atau simbol mana-mana parti politik. Seksyen 26(1) Akta Kesalahan Pilihanraya 1954 – Batasan pada hari mengundi (sebahagian): Tiada seorang pun boleh pada hari mengundi – (g) dalam jarak lima puluh meter dari sempadan mana-mana tempat mengundi dan dalam tempat mengundi, memakai, memegang atau membawa apa-apa bentuk atau jenis pakaian, tutup kepala, barang hiasan, roset, botol air atau payung yang padanya tercetak atau tertera nama calon atau nama, lambang atau simbol mana-mana parti politik. Ya betul, dan ini termasuk juga aksesori seperti payung, barang hiasan dan botol minuman. Memakai atau membawa mana-mana barangan ini di dalam lingkungan 50 meter dari stesen mengundi boleh mengakibatkan anda dihalang dari mengundi dan juga boleh membawa hukuman maksimum satu tahun penjara dan/atau denda maksimum RM5,000. Kita di sini bukannya perunding fesyen, tetapi adalah dinasihatkan supaya anda berpakaian biasa (neutral) dan sopan. 2. Bawa bekal makanan (jika perlu) Jadi, selepas mengenakan pakaian yang sopan, anda sekarang mula melangkah ke stesen mengundi anda, dan anda terserempak dengan sekumpulan orang yang sibuk mengagihkan makanan dan minuman kepada pengundi sebagai tanda terima kasih kerana mengundi calon pilihan mereka. Anda menerima sebotol air dari mereka untuk menghilangkan dahaga – dan mungkin juga tersenyum sinis kerana anda sudah pun bertekad untuk mengundi calon yang lain. Lagipun, tiada logo parti di botol air, jadi apa salahnya? Ada udang di sebalik mi tu. Seksyen 8 Akta Kesalahan Pilihanraya menyebut bahawa penerimaan tawaran dalam bentuk makanan, minuman, wang ataupun barangan dengan niat mempengaruhi undi seseorang pengundi adalah salah. Seksyen 8 Akta Kesalahan Pilihanraya 1954 – Menjamu (sebahagian): “...dan tiap-tiap pemilih atau pengundi yang, secara rasuah menerima atau mengambil apa-apa makanan, minuman, atau makanan atau minuman ringan atau bekalan itu atau mana-mana wang atau tiket itu atau yang menggunakan apa-apa cara atau tipu daya lain itu untuk membolehkan makanan, minuman, makanan atau minuman ringan atau bekalan itu didapatkan bersalah atas kesalahan menjamu.” Kata kunci di sini adalah “secara rasuah”, di mana ada motif tersirat di sebalik pemberian dan penerimaan mana-mana barangan yang disebut di atas. Oleh kerana amat sukar untuk mengetahui motif di sebalik pemberian ini, maka adalah wajar jika kita tidak menerima apa-apa sekali pun. Jika anda masih lagi tergerak untuk menerimanya, ingatlah bahawa hukumannya amat berat sekali, seberat denda RM5,000, ataupun dua tahun penjara ataupun kedua-duanya sekali, dan ini termasuk penggantungan hak mengundi selama lima tahun. 3. Semak kertas mengundi anda Sebagai garis panduan, anda perlu memastikan bahawa kertas undi anda tidak rosak, koyak, disalah cetak atau ditanda dengan apa cara sekali pun. Pegawai stesen mengundi juga akan mengecap kertas undi anda, jadi pastikan ianya dicap di dalam lingkungan kawasan yang diperuntukkan di kertas undi anda. Jika anda rasa ada yang tak kena dengan kertas undi anda, anda berhak untuk meminta kertas undi yang baru. Semasa memilih calon pilihan anda, anda cuma perlu pangkah ‘X’ yang jelas di kotak yang berkenaan, tanpa melampaui sempadan kotak (ingat, ini bukan kelas seni lukis). Mana-mana tanda lain selain dari ‘X’ boleh mengakibatkan undi anda tidak sah dan rosak. Dalam erti kata lain, jangan conteng kertas undi anda! 4. Jangan main-main dengan kertas undi anda via GIPHY Ianya satu perkara untuk merosakkan undi anda, tapi ada beberapa kesalahan lain yang boleh mengakibatkan hukuman seperti penjara, denda dan penggantungan hak mengundi untuk pilihan raya akan datang. Kesalahan pertama adalah memasukkan barang asing ke dalam peti undi seperti kertas undi palsu dan barang-barang lain selain dari kertas undi yang sah. Anda hanya boleh menggunakan kertas undi yang sah, yang diberi oleh pegawai SPR apabila membuang undi. Kegagalan untuk berbuat demikian merupakan kesalahan di bawah Akta Kesalahan Pilihanraya 1954. Seksyen 3(1)(g) Akta Kesalahan Pilihanraya 1954 – Kesalahan oleh mana-mana orang: Mana-mana orang yang— (g) memasukkan ke dalam mana-mana peti undi apa-apa jua, selain kertas undi yang dibenarkan oleh undang-undang untuk dimasukkan olehnya; Kesalahan ini boleh membawa hukuman maksimum 2 tahun penjara dan/atau denda maksimum RM5,000, dan juga penggantungan hak mengundi selama lima tahun. Sebaliknya, ia juga merupakan satu kesalahan mengeluarkan apa-apa dari peti undi. Kesalahan kedua adalah membawa keluar kertas undi dari stesen mengundi. Menurut Seksyen 3(1)(h) Akta Kesalahan Pilihanraya 1954, pengundi adalah dilarang sama sekali membawa keluar kertas undi dari stesen mengundi. Tetapi jika anda masih lagi berdegil untuk membawa keluar kertas undi dari stesen mengundi sebagai cenderahati, ingatlah bahawa hukuman maksimum 2 tahun penjara dan/atau denda maksimum RM5,000, dan juga penggantungan hak mengundi selama lima tahun menanti anda. Jika anda dapati anda diberi kertas undi yang lebih dari apa yang diperuntukkan, ataupun ada kertas undi yang terlekat di mana-mana bahagian badan anda, sila berjumpa dengan pegawai SPR dan kembalikan kertas tersebut kepadanya. Swafoto dengan kertas undi ataupun mengambil gambar kertas undi adalah dilarang sama sekali. 5. Jangan buat hal selepas mengundi Anda sudah habis mengundi dan anda ingin tunggu kawan anda yang masih mengundi? Boleh, apa salahnya – tetapi pastikan bahawa anda berada sekurang-kurangnya 50 meter dari mana-mana stesen mengundi. Section 26(1)(e)(iv) Akta Kesalahan Pilihanraya menyatakan bahawa tiada sesiapapun yang dibenarkan menunggu atau melepak (loiter) dalam lingkungan 50 meter dari stesen mengundi melainkan tunggu giliran untuk membuang undi. Kesalahan ini boleh membawa hukuman maksimum 1 tahun penjara dan/atau denda maksimum RM5,000. Lebih-lebih lagi, jangan sekalipun cuba mempengaruhi atau mencegah orang lain dari mengundi. Seksyen 26(1) Akta Kesalahan Pilihanraya 1954 – Batasan pada hari mengundi (sebahagian): Tiada seorang pun boleh pada hari mengundi – (e) dalam jarak lima puluh meter dari sempadan mana-mana tempat mengundi – (iii) merayu-rayu atau memujuk atau cuba memujuk mana-mana orang supaya tidak mengundi dalam pilihan raya itu, atau supaya mengundi atau tidak mengundi mana-mana calon dalam pilihan raya itu; Dan jangan sekali-kali menyertai ataupun menganjurkan perhimpunan ataupun kempen – walaupun kita hampir pasti yang anda tidak berniat berbuat demikian, kan? Perhimpunan, kempen ataupun ceramah yang melibatkan orang awam, walaupun dibuat secara aman, boleh membawa hukuman maksimum satu tahun penjara dan/atau denda maksimum RM5,000. Menurut Seksyen 26(1)(b), ini termasuk memasang lagu atau menyebarkan propaganda melalui peralatan muzik ataupun pembesar suara; tidak kira secara perseorangan, dari dalam kereta, ataupun (yang pelik sekali) melalui haiwan. Undilah dengan cermat dan penuh tanggungjawab Sudah pasti semangat kita berkobar-kobar menjelang 9hb Mei, namun kita harus ingat bahawa adalah tanggungjawab kita sebagai pengundi untuk menjaga tindak-tanduk kita sendiri sebelum dan selepas mengundi. Kita juga harus peka dengan hak pengundi-pengundi lain yang akan hadir, tidak kira parti mana yang mereka sokong. Senarai di atas bukannya senarai penuh, tetapi selain dari meneliti Akta Kesalahan Pilihanraya 1954 ataupun artikel kita yang satu lagi, kita harus berwaspada dari melakukan perkara yang tidak masuk akal, seperti mengambil gambar swafoto ataupun berdebat mengenai politik dengan pengundi-pengundi lain ketika menunggu giliran untuk mengundi. Jika anda tidak pasti ataupun ingin penjelasan yang lebih terperinci, sila hubungi Suruhanjaya Pilihan Raya di talian 03-88927018. Selamat mengundi!"
"How does postal voting work for Malaysians overseas? For those of us living overseas, deciding whether or not to come home to vote can be a tough call. It’s not that we love our country any less, but it's often not financially or schedule-wise feasible, however much we actually want to. Luckily, there’s a way to vote from overseas: Postal voting. That said, information on postal voting can be difficult to find online, let alone verify. As such, we’ve collected all the information on how the postal voting process works from the Electoral Commission (EC) itself. If you have no idea where to start, this is the article for you. Do bear in mind though, that this article does not discuss late delivery, security, or other issues with GE14’s postal voting that have already been highlighted in the press. So who’s eligible for postal voting? Postal voting is a method of voting through the postal system for those who cannot make it back to Malaysia to vote in person. It was originally a system to help absent voters (such as people working for the military) to get their vote in, but since the 2013 general elections, the EC has relaxed the rules to allow regular Malaysians living overseas to apply for it. Applications are approved on a case-by-case basis. Both absent voters and regular voters are eligible, as long as they fulfill the criteria as laid out in the changes to the Elections (Postal Voting) Regulations 2003 (in part): […] the Election Commission designates the persons specified in column (1) of the Schedule being members of the category of persons described in column (2) of the Schedule as postal voters. Persons Citizens of Malaysia residing abroad excluding citizens of Malaysia residing in Singapore, southern provinces of Thailand, Brunei and Kalimantan and a person referred to in paragraphs (c),(d), (e) and (f) in the definition of “absent voter” in regulation 2 of the Elections (Registration of Electors) 2002. Category of Persons Any citizen of Malaysia residing abroad who has been in Malaysia, or returns to Malaysia, for a period of not less than thirty (30) days within five (5) years before dissolution of Parliament or any State Legislative Assembly in force. What this means, in the simplest terms, is that to be able to apply for postal voting: 1. You must be a registered/valid voter. 2. You must have lived in or returned to Malaysia for 30 days or more in the past 5 years. There are exceptions to this though. If you’re living in southern Thailand (Narathiwat, Pattani, Yala, Songkhla and Satun), Singapore, Brunei, or Kalimantan, you don’t qualify for postal voting and have to come back to vote. The reasoning for this is that if you’re close enough to drive across the border, you're close enough to return to your polling station to vote in person. If this seems unfair, at least you aren't living in Johor Bahru while your home constituency is in Kelantan. Absent voter and Ordinary voter: What’s the difference? An absent voter is someone living overseas who is either a full-time student, police officer, military officer, or government servant. The husbands or wives of these classes of people are also classified as absent voters. This also includes people who live in Peninsular Malaysia but who are registered as voters in Sabah / Sarawak, and vice versa. So if you are living in Kuala Kangsar and unable to go home to Kota Kinabalu to vote, you can technically apply for postal voting. Section 2 of the Elections (Registration of Electors) Regulations 2002 – Interpretation (in part): ""Absent voter"" means a citizen who has attained the age of twenty-one years on the qualifying date and is- (a) a serving member of any regular naval, military or air force of Malaysia, the Commonwealth or other country; (c) in the public service of the Government of Malaysia or of any State or in the service of any local authority or statutory authority exercising powers vested in it by Federal or State law, who is on duty outside the boundaries of Peninsular Malaysia or Sabah or Sarawak; (e) engaged in full-time studies at any university, training college or any higher educational institution outside the boundaries of Peninsular Malaysia or Sabah or Sarawak; (h) a voter residing in Peninsular Malaysia and is registered as an elector in a constituency in Sabah or Sarawak, who does not fall within the description of paragraphs (a) to (f) of this definition; Do note that this is only a selected portion, and you can click the link above to view the full list. If you fall into this category, go ahead and register as an absent voter at the nearest Malaysian mission, embassy, or consulate. If you’re already registered, you’ll need to ensure that your voter status has been changed from ‘ordinary voter’ to ‘absent voter’ and that your records contain your latest address. On the other hand, an ordinary voter is someone living and working in a country outside of Malaysia and doesn’t fall into the categories mentioned above. You may not apply to be an absent voter if you are just an ordinary Malaysian working or living overseas – but you still qualify for postal voting. Even if you’re already registered as either an ordinary or absent voter, you still need to register for postal voting. The normal procedure is that you’ll need to fill out Form 1B which can be downloaded from the EC’s website. Unfortunately, the deadline to apply for GE14’s postal voting has passed so if you haven’t applied, you can still do so, but your name will only be on the electoral roll for the next general election (GE15). How does postal voting work? Here’s a step-by-step guide: Step 1 The EC will elect a Returning Officer for each constituency. They’re the officials chosen by the EC to run the election process. Your constituency’s Returning Officer will issue postal ballots and ballot boxes when Nomination Day draws near. You can check the EC’s website to find out whether your postal ballots have been issued. Step 2 Ballots will be mailed by the EC directly to the voter at their overseas address. Previously, ballots were mailed to the local embassy, high commission or consulate in your host country but, for GE14, the EC will be sending it directly to your home address. Step 3 You’ll receive a ballot package addressed to your name and address. It will contain Borang 2, Envelope B, and 2 envelopes marked “A” – 1 for Parliament and 1 for State. This is to place votes for your preferred candidate on the Parliament level as well as the State level. Before marking your ballots, make sure that there are no marks, misprints, or defects on your ballot paper. If there are any, you’ll have to lodge a report with your embassy at once to get a replacement. Step 4 After marking the ballots, you’ll need to fold them and put them back into their respective envelopes. Ballots put in the wrong Envelope A will not be counted, so be especially careful with your ballot. Step 5 When you’re done, return the envelope with the ballot to the Returning Officer of your constituency. Take care not to send the ballots by normal post, but instead use the proper channels provided by the EC. You can deliver your marked ballot via courier service, but you’ll have to foot the bill yourself. Alternatively, you can return your ballot to your Malaysian Mission, which will place it into the designated Special Diplomatic Bag to be sent back to your Returning Officer. The ballot must reach the officer before the deadline – which for GE14 is 5pm on polling day (9th May 2018). Late ballots will not be counted! It’s in the (mail) bag! And that’s all there is to it! For those of you living overseas who are on tenterhooks about the postal voting process, hopefully this article helps clear your doubts and assuage your fears in the run-up to the election tomorrow. Whatever the outcome, you’ve done your part in shaping the future of our country."
"5 basic Do's and Don'ts that Malaysians may overlook while voting this GE14 Feel that buzz in the air? What you're feeling is probably the electrifying excitement of election season, seeing as the voting day for the GE14 is just around the corner. But whether you’re voting for the first or 14th time, it’s always a good idea to remind yourself of the basic do’s and don’ts as you’re preparing to queue up at your polling station on 9th of May 2018. 1. Dress decently Despite some messages being spread around about a dress code for voters on election day, the EC has clarified that this is fake news and no voter will be barred from voting as long as they’re dressed properly – and that should include being able to wear slippers. ""The EC has not and will not prevent a voter from entering a polling station as long as the voter is appropriately dressed."" – Tan Sri Mohd Hashim Abdullah, EC Chairman, as quoted by The Star However, what WILL get you barred from entering the polling station is wearing clothes that have a candidate's name, a party's symbol or emblem, or any other political elements on them. Section 26(1) of the Election Offences Act 1954 - Limitation on polling day (in part): No person shall on polling day— (g) within a distance of fifty metres from the limits of any polling station and in a polling station wear, hold or carry any form or type of clothing, head covering, ornament, rosette, water bottle or umbrella on which the name of a candidate or the name, emblem or symbol of any political party is printed or imprinted. Yes, you read that right – it also includes accessories such as umbrellas, ornaments, and water bottles. Wearing or carrying any of these within 50 meters of a polling station can lead to being denied entry to vote, a jail sentence up to one year, and/or a fine up to RM5,000. While we can’t comment too much on fashion choices, it may be advisable to keep your clothing as neutral and decent as possible. 2. Bring your own snacks (if needed) So, in your most neutral clothes, you head over to the polling station and encounter a group of people who are handing out cold and refreshing drinks as tokens of gratitude for voting for a specific candidate. You accept one to fight off the merciless Malaysian heat – and maybe silently laugh to yourself because there’s no way you’re voting for that person. There are no party logos on the cans, so nothing wrong with that, right? Well, the joke may be on you. Section 8 of the Election Offences Act 1954 explains that accepting food, drinks, money or provisions when it is given with the intent of influencing a voter’s vote is regarded as a part of illegal treating. Section 8 of the Election Offences Act 1954 - Treating (in part): “...and every elector or voter who corruptly accepts or takes any such food, drink, or refreshment or provision or any such money or ticket or who adopts such other means or device to enable the procuring of such food, drink, refreshment or provision shall be guilty of the offence of treating.” The keyword here is “corruptly”, which indicates knowledge of ulterior motives behind the provision and acceptance of such treats. However, because it may be hard to ascertain the motives of those who provide these treats at times, it is best to avoid them altogether. If you find the temptation too great and would still like to have the drink nonetheless, keep in mind that it may be the most expensive drink you will ever have. To be precise, it could cost you a fine of RM5000, two years in prison, or both - along with a five-year suspension of your ability to vote. 3. Check your ballot papers As a general rule, you should always check your ballot papers to ensure that they aren’t damaged, torn, misprinted, or marked in any way. Also, polling agents will stamp your polling paper before giving it to you, so it’s also a good idea to make sure that the stamp is wholly-within the section of the ballot paper handed to you. If there are any issues with the ballot paper or stamp, it’s within your right as a voter to ask for a new one. While selecting your preferred candidate, keep your artistic tendencies in check and just place a clear ‘X’ on the box (without going past the borders) next to the candidate’s name. Any other marks, notes, or ambiguities can potentially invalidate your vote as well. In short, don’t conteng on the ballot paper! 4. Don’t pull any stunts with ballot papers via GIPHY Invalidating your vote is one thing, but there’s also some actions that can get you imprisoned, fined, or (arguably) worse – barred from voting during the next election. The first is by putting random stuff into the ballot box, like fake ballot papers or anything that is not an official ballot paper. You should use only authorised ballot papers that are given to you by election officers when casting your vote, and failure to do so would be regarded as a breach of the Election Offences Act 1954. Section 3(1)(g) of the Election Offences Act 1954 - Offences by any person (in part): Any person who – (g) puts into any ballot box anything other than the ballot paper which he is authorized by law to put in; Such a breach can lead to imprisonment for a maximum of two years and/or a maximum fine of RM5000, along with a five-year suspension of your ability to vote. Needless to say, it’s also an offence to to remove anything from the ballot box. The second is taking ballot papers out of the polling station. Voters are absolutely forbidden from carrying a ballot paper outside the confines of a polling station by Section 3(1)(h) of the Election Offences Act 1954. Of course, you could be a rebel and liberate these papers from the polling station anyway, as long as you don't mind losing your ability to vote for five years, with a possible fine of RM5000, and/or a two-year stay in prison. If you find, for any reason, that you have more ballot papers than you need, or discover a paper stuck to your body, approach an election officer immediately and return or remove the said paper. Needless to say, taking selfies with your ballot papers or of the ballot papers themselves is a no-no as well. What happens in a polling station, stays in a polling station; particularly when dealing with ballot papers. 5. Don’t be a nuisance after voting Done with voting and waiting for a friend? Feel free to do so - as long as you're at least 50 metres away from the vicinity of any polling station. Section 26(1)(e)(iv) of the Election Offences Act 1954 explains that no one is allowed to wait or loiter within a distance of 50 meters of any polling station, unless you are waiting to enter the polling station to cast your vote. If you are caught loitering within the vicinity, you may get slapped with a maximum fine of RM5000 or imprisonment for a maximum of one year, if not both. Worse, don’t try to influence or prevent anyone from voting. Doing this is not just morally wrong, but legally too. You may find yourself facing up to a year in jail and/or a maximum fine of RM5,000 under Section 26(1) of the Election Offences Act if done within 50 meters of any polling station. Section 26(1) of the Election Offences Act 1954 - Limitation on polling day (In part): No person shall on polling day— (e) within a distance of fifty metres from the limits of any polling station— (iii) solicit or persuade or attempt to persuade any person to abstain from voting at the election, or to vote or to abstain from voting for any candidate at the election; And while we’re pretty sure not many would even think of attempting to do this, don’t organize or participate in a rally! Regardless of whether it’s peaceful or not; any rally, lecture, or display that involves members of the public will also net you up to a year in prison and/or a RM5,000 fine. This also extends to blasting music or propaganda from loudspeakers or musical instruments, whether in person, from your car, or (funny enough) from animals according to Section 26(1)(b). Vote safely, vote properly While the excitement and anticipation will undoubtedly be high on May 9th, we should remember that our duty as voters also extends to our conduct before and after we’ve cast our votes. In that sense, we should also keep our fellow voters in mind, regardless of their political affiliations and who they support. Of course, this isn’t an exhaustive list of things you shouldn’t do during voting season, but other than reading the full list in the Election Offences Act or our other article on the subject, some measure of common sense can be used as well – such as not taking selfies or having heated political discussions with the person lining up behind you. If you’re unsure or have come across any information that seems questionable, you’re advised to check with the Election Commission by calling 03-88927018 Happy voting everyone!"
"Bank Negara’s policy on FREE bank transfers is actually about...paying with QR codes? On 16 March 2018, Bank Negara announced their Interoperable Credit Transfer Framework (ICTF) policy that will take effect on 1 July 2018. The last big policy that Bank Negara announced was regarding Bitcoin, and measures being taken to prevent money laundering and terrorism-financing through cryptocurrencies. [READ MORE - Is Bitcoin legal in Malaysia?] Bank Negara’s policies are usually a bigger concern to players in the financial industries than the average consumer, but this time, consumers get a big break from the ICTF - free bank transfers! This means you won’t be charged xx sen for GIRO or xx sen for instant transfer transactions anymore. But that’s not all the the ICTF is about, as Bank Negara also wants to help make electronic payments through QR codes a norm in Malaysia. We’ve come up with some frequently asked questions you might have and their answers to let you know about how the ICTF works, and how it affects you and your payments. 1. What is the ICTF and what does it do? The ICTF is a policy that will streamline credit transfer services in Malaysia to make sure they are secure and easy to use. Credit transfer services won’t mean just your usual bank transfers and remittances, but will include electronic payments as well. These electronic payment systems require you to fund an electronic wallet using your money, and you’ll receive the equivalent value in credits to use (just like a prepaid service). You might have heard of electronic money (e-money) payment services like Alipay which use a QR code for payments - just scan a shop’s QR code with the Alipay app on your mobile phone to make a payment. These payment systems are currently isolated from the rest of the financial system in Malaysia, and it becomes difficult on customers and merchants if this is not changed. For example, if you’re using Alipay, you can only pay someone who is also using Alipay, and you can’t transfer funds to someone’s WeChat, GrabPay, or even their bank account. The ICTF sets the framework for these payment systems to work with one another in the future. According to Tan Nyat Chuan from Bank Negara: “Our ambition is that if I’m GrabPay or Alipay or Touch ‘n Go, I can basically pay to someone who has got a Maybank, CIMB, any bank wallet. And from wallet to wallet transfer. It should be reachable, that is our endgame.” - quoted by VulcanPost at Malaysia FinTech Expo 2. What does this mean for me? Among the measures Bank Negara is taking to make credit transfers smoother in Malaysia is waiving the transaction fee imposed on customers, whether they are the sender or recipient. So your everyday banking transactions will be free of charge. Bank Negara waives the fees on transactions up to RM5,000 only, but banks and issuers of e-money can specify a different transaction limit for their services. The ICTF also requires banks and e-money service providers to make sure you can make payments using a universally accepted QR code. So in the future, you’ll be able to make QR code payments using the bank services you already use - no need to sign up with an individual/external e-money service provider like Alipay, GrabPay, or WeChat. 3. Great! Does this waiver apply to every type of financial transaction in Malaysia? No, there are a few exceptions to the waiver because only “eligible credit transfer transactions” will have their transaction fees waived. As per paragraph 7.1(d) of the policy document: “(d) waive the transaction fee imposed on its customers who are either the sender or the recipient for any eligible credit transfer transaction funded using a current account, a savings account or an e-money account up to RM5,000 per transaction or such other amount as may be specified by the Bank.” The following types of credit transfer transactions are excluded: Bulk payment transactions, including Interbank GIRO (TBG) Bill payments including JomPAY transactions Electronic or mobile commerce transactions, like Financial Process Exchange (FPX) transactions Real-time Electronic Transfer of Funds and Securities System (RENTAS) transactions Any other types of transactions as Bank Negara may specify 4. Can I still use cash and credit/debit cards come July? QR codes are only going to become a payment option in the near future, and the ICTF is meant to help implement a fair and secure system. While the aim is to help Malaysians go cashless if they want to, cash and cards will still be valid forms of payment. 5. What can we do with e-money? You’ll be able to pay for just about anything with e-money - as long as the merchant accepts it. If you’re familiar with PayPal, you’re already using a form of e-money, just one that doesn’t deal in QR codes. In Malaysia, there will be certain restrictions on what can be done using e-money due to concerns of money laundering and terrorism-financing. Service providers will need to do what’s called a Customer Due Diligence (CDD) on you, which is basically a background check. They’ll collect your information, get you to fund your e-money account from your bank or a payment card, and then they verify your details with your bank. You’ll still be able to use e-money even without a CDD, but your transactions will be limited as per the table below. 6. How do I know if using these QR codes are safe? QR code security became a widespread concern in China after reports of fraudsters sticking fake QR codes on top of real ones that would pay money to the fraudsters’ accounts, or steal a customer’s personal information. This is exactly the kind of security concern which Bank Negara wants to address with the ICTF, which must be solved by service providers in time to come. When implementing the QR payment framework in Malaysia, service providers will be required under Paragraph 11.1 of the ICTF to ensure that their customers’ information is securely protected, and implement measures that will prevent loss, theft, or unauthorized access to personal information. As an example of a security measure, Visa’s YouTube video here shows that with Visa’s QR payment services, your account is still safe even if you lose your phone because your PIN or fingerprint is still required to authorize any transactions. You can also expect to be alerted by financial service providers from time to time about practical safety tips to protect yourself from becoming a victim of fraud. In the meantime, QR codes are already being used for payments in Malaysia, so if you do use services like Alipay and GrabPay, take note of some of these precautions issued by Quann Malaysia to protect yourself. 7. Can’t they use a identification system to catch the scammers easily? Yes! Bank Negara has already announced that a “National Addressing Database” (NAD) shall be established. It’s a central database that will link a bank account (or an e-money account) to personal information that can identify a person. As defined in the ICTF policy document: “National Addressing Database” means a central addressing repository established by an operator of a shared payment infrastructure that– (a) links a bank account or an e-money account to common identifiers of an account holder such as a mobile phone number, National Registration Identity Card (NRIC number), company registration number or business registration number; and (b) facilitates payment to be made to a recipient by referencing the recipient’s common identifiers; The database will also make payments easier to send (you can send payments to a friend using their phone number instead of their bank account number), and since we can all be identified in it, it should be able to track down anyone who may be committing crimes using QR payments as well. 8. Wait, they’re collecting our personal data? How do we know they’re keeping it safe and not selling our information? Yes, they’re collecting our personal data. But no, they’re not allowed to do anything they want with it. Any person or company who collects personal data for commercial purposes in Malaysia has to comply with the requirements of the Personal Data Protection Act 2010. It contains a standard of security measures and duties that data collectors must fulfill, and they must protect your information from potential data thieves, including their own employees. Companies that fail to do so can be fined up to RM300,000 and the people responsible can be jailed for up to 2 years. [READ MORE - The PDPA can be used to stop telemarketers from bugging you] [READ MORE - How much responsibility do companies have if your personal data is stolen?] 9. What if the worst happens and someone hacks into my account? Technology is marvelous and helps us greatly in our lives - until it fails. The technology behind the operation of banks and e-money are set up by them, and is under their control. So if a security measure fails, they will have to take responsibility for it. Under the ICTF’s rules for credit transfer transactions, if your account is compromised, a bank or e-money service provider will not hold you responsible unless they can prove that your account was breached because of your own fault. This means that they should compensate you for the losses unless you did one of the following: You were acting fraudulently You deliberately shared your ID and password with other people You did not take steps to keep your security device secure You did not report a stolen password, loss of your security device, or any unauthorized transaction as soon as you knew about it You failed to comply with security warnings that were sent to you to help keep your account safe 10. If e-money is as good as money, do we earn interest on it? Unfortunately, no. Under Paragraph 12.2, e-money service providers in Malaysia cannot: Issue e-money at a discount from the real value Lend money Lend you e-money, or pay you interest on your e-money balance Associate or use the e-money scheme or platform to conduct illegal activities We’ll have to wait and see what develops The ICTF has a lot of information to take in about how electronic payments will work in Malaysia, but a lot of it is still just a framework and theory. The actual work and execution of the system is not yet in place. Although, some banks have already made their moves towards helping Malaysia adopt electronic payments, such as making online transfers free, and adopting QR payments themselves."
"If a Malaysian company that owes you money goes bankrupt, can you sue the boss to get it? This article was written by Dinesh Sadhwani, a practicing advocate and solicitor of the High Court of Malaya. At some point in time, you may have heard of the term “corporate veil” or “piercing the corporate veil”. But what do these terms mean exactly? For the purposes of this article, we’ll be looking at two very basic but important principles of company law (whether in Malaysia or many other jurisdictions) which translates to a company having the following features: It is a separate legal entity – i.e. it is separate from its shareholders, directors and other representatives and capable of exercising all the functions of a body corporate and have the full capacity to undertake any business or activity including to sue and be sued, to acquire, own, hold, develop or dispose of any property and to enter into transactions. This is recognised by Malaysian law under sections 20 and 21 of the Companies Act 2016 (“Companies Act”). The shareholders of the company are generally not responsible for the company’s debts and other obligations – Specifically in the case of shareholders, their liability or risk is only up to the amount they have invested or agreed to invest in the company. If the company were to go bust, the shareholders have no legal responsibility to rescue the company or inject further capital. This is known as the ‘limited liability principle’ and can also apply to directors, other representatives / agents and employees. The corporate veil in this sense is the separation between the company and the people behind it, that, in a way they’re seen as separate entities.However, this represents the general rule. As with all rules, if this rule is applied strictly without exceptions, it can be abused. Let us take the hypothetical example of an unscrupulous businessman, Mr Suka Tipu Orang (STO): Mr Suka Tipu Orang incorporates a company, Fraud & Sham Sdn Bhd, to carry on business. Mr STO uses the company to purchase goods on credit from its suppliers. The company sells the goods to its customers for cash. Mr STO then siphons out all the cash from the company through various means. This leaves the company without any cash. Mr STO has no intention of having Fraud & Sham Sdn Bhd pay its suppliers and other creditors (landlord, employees, EPF, IRB, etc). If we apply the general rule strictly, it’s the company – and not Mr STO – who is responsible for all transactions with its creditors (Point 1), as the transactions are carried out in the name of the company. Even if the company’s creditors sue the company and win in court, the creditors will end up with mere “paper” judgements as the company has no assets to settle those judgments. Not just that, the creditors cannot sue Mr STO personally (Point 2) to get their money. And so, if the general rules are strictly followed, Mr. STO will get away scot-free with his ill-gotten gains. At the risk of stating the obvious, the separate legal entity and limited liability concepts are well intended. The intention is to facilitate business or entrepreneurial activity and encourage bona fide risk taking. However, due to the potential for abuse, the law has also created exceptions. There are instances where the people behind the company can be held personally responsible for acts purportedly carried out by or in the name of the company. This is sometimes called “piercing the corporate veil”, which is to go behind the so-called “corporate veil” or “legal entity” and hold the ultimate “controlling mind” of the company personally liable. So let’s take a look at some of these exceptions below. Fraudulent trading Let us consider the case of a company that has gone bust (i.e. its debts are more than its assets) and the creditors have no choice but to take a significant haircut – fancy business term for a discount – on the money owed to them. To thicken the plot, investigations reveal that the directors have mismanaged the company and even siphoned out monies for their own benefit. If we strictly adhere to the limited liability concept, the creditors can only sue the company and not the directors, even if they were dishonest in their business dealings. Luckily, the creditors may have a remedy thanks to Section 540 of the Companies Act. Section 540 of the Companies Act 2016 – Responsibility for fraudulent Trading (in part): (1) If in the course of the winding up of the company or in any proceedings against the company, it appears that the business of the company has been carried on with the intent to defraud the creditors of the company or for any fraudulent purpose, the court may declare that any person who was knowingly a party to the carrying of business in that manner shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the court directs. What this means in simple terms is that if someone has used the company for fraudulent purposes (such as we saw in the Mr STO example), that person can be held personally responsible for the company’s debts. One of the most recent decisions on this area of the law in Malaysia is the case of Prem Krishna Sahgal v Muniandy Nadasan where, long story short, a managing director of a since closed-down company attempted to appeal against a fraudulent trading claim by his former employees. The Federal Court found that the company's funds had been siphoned out through various means, including to companies connected to the managing director, and ruled against him. Using the company as a sham device Although “fraud” and “sham” are used as interchangeable terms in everyday conversation, there’s a slight difference between the two. Essentially, a “sham” is the smoke-and-mirrors used to disguise something while a “fraud” is outright fakery or cheating. As an example, a sham would be putting a Mitsubihi emblem on your Proton Inspira to con people into thinking it’s a Lancer. A fraud would be selling that same car by advertising it as a Mitsubihi Lancer. Unlike section 540 in the point above, this “sham” exception does not have statutory footing and is instead a creature of the courts. What this means is that this exception is not specified in the Companies Act or any other act passed by parliament. Rather, the courts have taken the initiative and recognized the need to prevent the use (or abuse) of a company to evade responsibilities or obligations based on previous cases. The famous British cases of Gilford Motor Co Ltd v Horne and Jones v Lipman are best illustrations of this. British cases are used as reference in Malaysian courts, for reasons which you can read more about here: [READ MORE: Where does Malaysia get its laws from?] In the Gilford Motor case, Mr Horne was the former managing director of Gilford Motor. When he left the company, his employment contract prevented him from competing with Gilford Motor. To get around this restriction, he set up a company under his wife’s and an employee’s name to compete with Gilford Motor. Needless to say, Gilford Motor sued Mr Horne, and won. The court said: “Of course, in law the company is a separate entity from the defendant but I cannot help feeling quite convinced that at any rate one of the reasons for the creation of the company was the fear of the defendant that he might commit breaches of covenant … and that he might possibly avoid that liability if he did it through the company. I am quite satisfied that this company was formed as a device, a stratagem, in order to mask the effective carrying on of the business of the defendant. The purpose of it was to try to enable him under what is a cloak or a sham, to engage in business which, on consideration of the agreement which had been sent to him before the company was incorporated, was a business in respect of which he had a fear that plaintiffs might intervene and object.” In Jones v Lipman, Mr Lipman agreed to sell land to Mr Jones. Mr Lipman later changed his mind before completion of the sale and purchase agreement and transferred the land to a company where the sole directors and shareholders were him and his nominee. Mr Jones sued Mr Lipman and his company. The court held in favour of Mr Jones and said: “The company is the creature of the defendant, a device and a sham, a mask which he holds before his face in an attempt to avoid recognition by the eye of equity. [Gilford v Horne] illustrates that an equitable remedy is rightly to be granted directly against the creature in such circumstances.” In some cases, evading responsibilities may not only just involve a simple case of not paying debts (such as the example of Mr STO) – it can be a situation where someone is taking advantage of the separate legal entity principle to do something which that they’re not legally supposed to do. Other laws and (possibly) lawsuits Other than the Companies Act, there are various other laws that specifically allow for the directors of the company to be personally liable for certain debts of the company. Two prominent and good examples of this are the Employees Provident Fund Act 1991 (“EPF Act”) and the Income Tax Act 1967 (“ITA”). Section 46 of the EPF Act makes the directors of the company jointly and severally liable for the company’s unpaid EPF contributions. Similarly, section 75A of the ITA provides that where any tax is due and payable under the ITA by a company, any person who is a director of that company during the period in which that tax is liable to be paid, shall be jointly and severally liable for such tax that is due and payable. “Director” in section 75A has a special definition i.e. someone who is occupying the position of director (by whatever name called and includes any person who is concerned in the management of the company's business) and either directly or indirectly has control of not less than 20% of the ordinary share capital of the company. The rationale behind this is that the separate legal entity / limited liability concept should not be used as a shield to evade liability towards employees and the tax authority. One interesting issue is whether a director can be held personally liable for tortious acts (e.g. negligence or defamation) committed in the course of acting as director on behalf of the company. A tort is essentially a legal right to sue someone for a wrong-doing, even though the parties may not have any contractual relationship between them. [READ MORE: What’s a tort? Can eat wan ah?] This discussion itself would require a separate article but, in a nutshell, the general position is that a director should not attract personal liability in tort (cannot be sued) for simply carrying out his role in governing the company. It may be different if the director has abused his position and gone beyond his proper duties. For example, if a director makes a genuine press statement on behalf of the company and the statement contains defamatory material, the director should not be personally liable for defamation. However, if the director has a personal vendetta or axe to grind with someone and uses his position as a director to issue a defamatory statement (purportedly on behalf of the company) for personal motives, the director could be personally sued. When there’s a veil, there’s a way The core of company law (in this context, the separate legal entity / limited liability principles) is driven by commercial considerations in the sense that genuine businessmen need an avenue or entity to carry out legitimate business ventures without the fear of being personally responsible should the venture fail – which can happen for various inadvertent reasons (e.g. bad luck, recession, competition, wrong business model, etc). At the same time, the law recognizes that there will be unscrupulous parties who will abuse this avenue and cause hardship to other third parties (as we say in the example and various cases discussed above) – hence the exceptions to the general rule. The challenge is, of course, in ensuring that the law does not cause genuine businessmen to feel deterred in embarking on a venture because of the fear that one might fall within the exceptions if things go sour. In any case, for those who think that doing business under a company is equivalent to having an unconditional license or right to whimsically use (or abuse) the company – especially to carry out unlawful activity or to intentionally evade debts / commitments – and then turn around to say “Sorry, it was not me but the company. You cannot sue me but please go ahead and sue the company.” – you are strongly advised to think again very carefully!"
"What do ""Free Legal Fees"" really mean when buying property in Malaysia? The recent state of the property market has led to many developers offering various freebies to prospective buyers as a means of sweetening the deal. The freebies offered usually include things like free furniture, free electrical appliances and best of all...free legal fees. Wait, what? Free? Really? At least that’s what the developers’ advertisement posters and pamphlets say. Hey, free legal fees could save you a hefty chunk of your house-buying budget and maybe you could even spend that money on that gaming console you always wanted. A fun fact before we dive into the heart of this article – developers are actually not allowed to include the the promise of “free legal fees” in their advertisements. Under Regulation 8(1A) of the Housing Development (Control and Licensing) (Amendment) Regulations 2015, the following items are banned from being stated in advertisements: Free legal fees Claims of panoramic views Travelling time from other housing projects or other popular destinations Projected/expected gains or returns from rental fees Any other particulars which a housing developer cannot genuinely or properly lay claim to While they are not allowed to advertise it, they are still allowed to give it out. For the purposes of this article, we will be looking at the context of buying property direct from the developer as opposed to buying a second-hand home (commonly referred to as sub-sales). What are legal fees? When calculating the cost of buying a property, you might look at the figure quoted in the sales pamphlet and think, “Well, so this is the amount I’ll give them, and they’ll give me the key to my dream home, right?” Unfortunately, no. As a general rule, when you buy a property (new development or otherwise), you should expect to incur the following additional costs as part and parcel of the transaction: Legal Fees – these are the fees you pay to whichever legal firm you have hired to represent you for the transaction and for completing all the necessary paperwork for you, including the Sale and Purchase Agreement (“SPA”), transfer forms. The legal fees chargeable is regulated by the Solicitors Remuneration Order 2005 and lawyers have to follow the scale provided when charging you their legal fees (we will cover this in another article). The legal fees basically go higher as the price of the property increases. Disbursements – these are basically the expenses that lawyers incur while preparing your agreements and they include things like travelling, printing, and so on. Stamp duty – is basically tax you pay to the government and also varies according to the price of your property. The method of calculation is governed by the Stamp Act 1949 and we will cover this in detail in another article If you need to bring yourself up to speed with what SPA or stamp duties are (no, not the fun collectible type), take a look at our article below to get up to speed: [READ MORE: Ever bought a house in Malaysia and have no idea what you signed?] Now that you know the breakdown of things that you will be charged for (aside from the price of the house), let’s look at what it means to have free legal fees. Free legal fees, but representation-free too Take a step back and think for just minute: what do you expect to get when you hear someone say “free legal fees”? You either think that you lucked out because you don’t have to pay a single cent to lawyers or you probably get a lil suspicious because errbadeh know that there is no such thing as free. So here’s the thing...developers may offer to pay your legal fees for you but that is all they pay – just the legal fees. You will have to pay for the disbursements and stamp duty. While the disbursements may not add up to much, the stamp duty surely can. If you are confused as to what you have to pay, let’s look at some mathematical equations. A typical invoice from the lawyers would be: A (legal fee) + B (disbursements) + C (GST) = what you have to pay What it means to have free legal fees: A = what the developers pay (the “free legal fee” advertised) B + C = what you have to pay In essence, you do get free legal fees but it doesn’t mean that you don’t have to pay a single cent to the lawyers. Technically the developers are upholding their end of the bargain and you know now that the term “legal fees” doesn’t cover every single thing. All is good though, because half a loaf is better than none, so some money saved is better than no money at all. But here’s the thing you have to know – when developers pay your legal fees, it basically means that you agree to not being represented by any lawyers at all. This is because it is actually illegal for lawyers to act for both parties to a transaction: Section 84(1) of the Legal Profession Act 1976: “Where an advocate and solicitor acts for a housing developer in a sale...under a housing development neither he nor any member or assistant of the firm of which he is a member either as a partner or employee shall in the same transaction act for the purchaser of that property...” What happens in a real life is that, at the signing, you will be notified by the lawyer that they are acting for the developer and advise you that you are free to seek your own legal representation. Should you choose not to do so, you will be asked to sign a letter confirming that this been explained to you. So, instead of having the typical scenario where each party has their own lawyers protecting their interests, the lawyers in this free legal fees scenario work for the developers and they are only obliged to protect their interests. While the lawyers will prepare the necessary paperwork and brief on you the meaning of the documents and whatever it is you are signing, their duty is to their clients, which in this scenario, are the developers. Maybe you’re thinking, “meh, risk, schmisk, it’s just some paperwork. What’s the worst that could happen?” Well, when you don’t have a lawyer protecting your interest, it means that you might be left open and you may fall prey to unscrupulous developers. But before you get mini heart palpitations and give the stink eye to every lawyer and developer you see, hang on. While the lawyers have to always protect the interests of their clients, it doesn’t mean that they will scam you or doing anything illegal. As a matter of fact, while they have a duty to protect their clients’ interests, their ultimate duty is to act in the interest of justice. Plus, they have a whole bunch of rules that they must follow (which will be covered in our upcoming article). So, don’t think that not acting in your interest = scamming you. In the cases such as Ong Kim Khoon v Gaya Filem Sdn Bhd the courts actually said that it is not illegal for lawyers to act for multiple parties but they must prove their impartiality. Further, according to rule 6.07 of Bar Council Rulings, a lawyer who has acted in the transaction for multiple parties is not allowed to appear in court if the matter goes into a dispute. This basically means that a lawyer who acts for the developer is not allowed to represent them or you in court and you both will have to look for your own lawyers to fight out the matter if it goes to court. Aside from that, the agreements which developers use today to sell you houses are standard contracts which are found in the Housing Development (Control and Licencing) Act 1966 (“HDA 1966”). One of the reasons this Act came into place was to provide standardised contracts so that purchasers don’t end up waiting ten years for a house that is never going to be built while the developer has gone underground. Long story short, there are many safeguards in place to ensure that even though you are unrepresented, you are not left out in the cold. At the end of the day, the important thing is... Always, always, always read your contracts and ask questions Always bear in mind that while you may not be well-versed in the law, it doesn’t stop you from reading the terms of the contract and asking the lawyer tons of questions. The lawyers are always happy to assist you with any questions and besides, you wouldn’t want sign something you don’t fully understand. Again, here’s that article that we recommend as further reading: [READ MORE: Have you ever bought a house in Malaysia and had no idea what you signed?] If you are a first time home buyer, it is best to do some research before taking that leap of faith. In all likelihood, most of these transactions are completed without a hitch, and you’ll have that extra money left over for a video game console to decorate your new home with. But should something go wrong, Malaysia actually offers free legal advice which you can read more about here. Beyond that, if you have to lodge any complaints against a lawyer, you can find out how to do it here and if you have any problems against the developer, you can speak with you local Commissioner of Buildings (contact details here)."
"Jika kemalangan dengan kereta polis, automatik salah korang ke?  [Artikel ini diterjemah dari Bahasa Inggeris. Click here for English version] Sekiranya sebelum ini korang pernah mengalami kemalangan langgar bumper ketika memandu, korang mungkin tahu prosedur – menilai kerosakan pada kereta, menentukan siapa yang bersalah, bertukar maklumat, dan cuba selesaikannya di balai polis untuk tuntut insurans atau ‘settle tepi’ je. Tapi macam mana kalau korang tengah drive waktu jammed dan tiba-tiba ada kereta cuba mencelah-celah ke hadapan dan tetiba korang terdengar… satu dentuman yang kuat! Tapi bila korang toleh je kat cermin, rupa-rupanya tu kereta polis? Ok first sekali, ‘settle tepi’ je lah. Tapi kalau korang nak tahu, cara macam ni tak diiktiraf di sisi undang-undang sama ada dengan kereta polis ataupun kereta biasa. So kalau terjadi macam ni, apa yang perlu korang buat? Mula-mula korang kena buat polis report Kalau kemalangan tu merupakan langgar biasa di mana hanya kenderaan je yang rosak, first sekali korang kenalah buat laporan polis. Dan seperti biasa lah, korang akan bertukar-tukar maklumat dengan pemandu tersebut (ambil gambar lesen kereta / IC / ID lencana) dan membuat laporan dalam masa 24 jam. Lagi bagus kalau korang pun turut ambil beberapa keping gambar sebagai bukti. [UNTUK BACAAN LANJUT: If you hit a car from behind, are you automatically wrong?] Sekiranya korang didapati bersalah, korang akan dikenakan denda RM300 kerana menyebabkan kemalangan dan tuntutan akan dibuat terhadap insurans korang. Tapi sekiranya pihak lain yang bersalah, topik ni dah mula jadi menarik… Bagi kereta polis, Menteri Dalam Negeri Datuk Seri Zahid Hamidi ada menyatakan pada 2017 bahawa semua kenderaan yang dimiliki oleh pasukan polis TIDAK dilindungi oleh insurans. Sebaliknya, apa yang perlu korang lakukan adalah membuat laporan polis dalam masa 24 jam, dan membuat tuntutan kepada kerajaan untuk pampasan. ""Polis tidak akan membayar apa-apa pampasan atau kos pembaikan kenderaan kepada pihak ketiga jika mereka terbabit dalam kemalangan jalan raya ... Walau bagaimanapun tuntutan boleh dibuat kepada kerajaan bagi kos atau pampasan yang berkaitan ... Setiap kemalangan yang melibatkan kerajaan kenderaan akan dirujuk kepada penasihat undang-undang untuk mengkaji kemungkinan kerajaan membayar kerugian yang ditanggung oleh kemalangan itu. ""- Datuk Seri Zahid Hamidi, dipetik dari The SunDaily, diterjemah oleh ASKLEGAL Ok ini adalah untuk kemalangan-kemalangan kecil, tapi macam mana kalau ia merupakan kemalangan yang serius di mana korang turut mengalami kecederaan? Korang boleh saman kerajaan, bukan pemandu tersebut! Kalau korang nak tahu, kereta polis adalah tertakluk di bawah kategori ""Kenderaan Kerajaan"" yang secara ringkasnya merujuk kepada kenderaan yang dibeli oleh kementerian Malaysia untuk kegunaan rasmi. Ini termasuk kereta rasmi Menteri atau kereta royalti termasuklah juga beberapa kenderaan peronda polis yang lain seperti motosikal dan balai polis bergerak, kereta bomba, dan juga ambulans. Walau bagaimanapun, tidak semua ambulans adalah milik kerajaan: [UNTUK BACAAN LANJUT: 5 things you need to know if you get into an accident with an ambulance] Jadi katakanlah kereta polis tu dah langar korang dan korang disahkan oleh doctor akan mengalami sakit belakang sepanjang hayat akibat kemalangan tersebut; dan korang pun memutuskan untuk menuntut ganti rugi. Tapi korang tahu tak yang sebenarnya, korang tak boleh saman pemandu kereta polis tersebut tau. Sebaliknya, tuntutan korang tu adalah terhadap Kerajaan Malaysia. Tertakluk dalam Seksyen 5 Akta Prosiding Kerajaan 1956 (tiada terjemahan rasmi, terjemahan oleh ASKLEGAL): Tertakluk kepada Akta ini, Kerajaan bertanggungjawab ke atas apa-apa perbuatan salah dilakukan atau apa-apa kecuaian atau keingkaran yang dilakukan oleh mana-mana pegawai awam mengikut cara yang sama dan setakat yang sama dengan mana seorang prinsipal, sebagai orang persendirian, boleh dikenakan apa-apa perbuatan yang salah dilakukan, atau apa-apa kecuaian atau keingkaran yang dilakukan oleh ejennya, dan bagi maksud seksyen ini dan tanpa menjejaskan keluasannya, mana-mana pegawai awam yang bertindak atau berupa dengan suci hati untuk bertindak menurut kewajipan yang dikenakan oleh undang-undang hendaklah disifatkan sebagai ejen dan bertindak di bawah arahan Kerajaan. Maksudnya disini ialah, jika terdapat mana-mana pegawai yang melanggar korang sewaktu mereka sedang bertugas pada masa kemalangan itu, tuntutan akan dibuat kepada majikannya iaitu Kerajaan Malaysia. Tapi sekiranya sewaktu itu mereka bukan dalam tugasan, korang akan menyamannya sebagai individu. Korang boleh baca lebih lanjut disini: [UNTUK BACAAN LANJUT: If a worker hurts you by accident, do you sue him or his boss?] Seorang anggota polis sering dianggap sedang bertugas apabila diperlukan untuk bertindak sedemikian; ini bermakna apabila mereka berada dalam sebuah kereta rondaan, mereka tetap akan dianggap bertugas walaupun siren tidak dihidupkan. Seksyen 19 Akta Polis 1967 - 'Pegawai polis hendaklah disifatkan sebagai bertugas': Tiap-tiap pegawai polis, pegawai polis tambahan dan konstabel penjaga, bagi maksud Akta ini, hendaklah disifatkan sebagai sentiasa bertugas apabila dikehendaki bertindak sebagai demikian dan hendaklah melaksanakan tugas dan menjalankan kuasa yang diberi kepadanya di bawah mana-mana undang-undang lain di mana-mana tempat dalam Malaysia di mana dia mungkin menjalankan tugas. Tapi sebelumlah korang merempuh keluar rumah mencari lawyer untuk sue kerajaan untuk kemalangan yang berlaku 15 tahun dahulu... Terdapat had masa untuk korang saman kerajaan (dan sebaliknya) Di mahkamah sivil Malaysia, ada sesuatu yang dipanggil ""tempoh had masa"" (limitation period) yang membataskan berapa lama korang perlu menyaman seseorang. Walaupun terdapat pengecualian, biasanya tempoh yang diberikan hanya 6 tahun dari masa kejadian berlaku. Maksudnya disini ialah, jika korang menyaman seseorang selepas 7 tahun kejadian, berkemungkinan besar yang hakim tidak akan melayan tuntutan korang tu. [UNTUK BACAAN LANJUT: Is there a time limit for you to sue someone in Malaysia?] Tetapi apabila datang kepada pihak berkuasa kerajaan, mereka mendapat kelebihan yang dikenali sebagai PAPA. PAPA dalam kes ini tidak merujuk kepada daddy atau ayah ye. Tetapi ianya ialah Akta Perlindungan Pihak Berkuasa Awam 1948 yang menyatakan bahawa korang hanya mempunyai tempoh 3 tahun untuk membawa kerajaan ke mahkamah. Seksyen 2(a) Akta Perlindungan Pihak Berkuasa Awam 1948 (sebahagian): “...guaman, tindakan, pendakwaan atau prosiding itu tidak boleh diambil atau dimulakan melainkan jika ia dimulakan dalam tiga puluh enam bulan selepas sahaja perbuatan, keabaian atau keingkaran yang diadukan itu atau, dalam hal kecederaan atau kerosakan yang berterusan, dalam masa tiga puluh enam bulan selepas sahaja terhentinya kecederaan atau kerosakan itu;” Walau bagaimanapun, ini tidak berfungsi bila situasinya terbalik, jadi kerajaan masih mempunyai 6 tahun untuk membawa korang ke mahkamah. Korang akan didenda sekiranya menggangu polis sedang bertugas! Seperti yang kita semua tahu, mana-mana kereta yang memandu secara laju dan melanggar kenderaan korang, dia lah yang merupakan pesalahnya! Namun undang-undnag ini tidak boleh diguna pakai sekiranya yang langar itu adalah kereta polis Gagal memberi jalan - atau lebih teruk, menyebabkan kemalangan - kepada kenderaan polis yang sedang bertugas (dalam konteks apabila mereka menghidupkan siren dan lampu strop) boleh menyebabkan korang dihukuman penjara sehingga dua tahun dan / atau denda sehingga RM10,000 di bawah Seksyen 186 Kanun Keseksaan (Tiada terjemahan rasmi): ""Sesiapa secara sukarela menghalang mana-mana kakitangan awam dalam melaksanakan tanggungjawabnya, hendaklah dihukum dengan hukuman penjara selama tempoh yang boleh sampai kepada * dua tahun atau dengan denda yang boleh sampai kepada * sepuluh ribu ringgit atau dengan kedua-duanya."" Tak cukup dengan tu, korang juga mungkin menghadapi risiko lesen ditarik atau dibatalkan di bawah Sistem Poin KEJARA Demerit JPJ. Kegagalan untuk ""memberi keutamaan kepada ambulans, ahli bomba, polis, adat, atau Jabatan Transaksi Jalan kereta (dengan siren)"" akan menjatuhkan anda 8 mata demerit. Untuk rujukan, sistem ini berfungsi pada peringkat 20 titik, dengan penggantungan 6-8 bulan apabila terkumpul 40 mata. Klik di sini untuk FAQ JPJ mengenai sistem, dan di sini untuk senarai kesalahan titik demerit. Walaupun kemalangan kadang-kadang tidak dapat dielakkan, terutama jika berlaku pengejaran polis; ia sentiasa menjadi idea yang baik untuk mengetahui persekitaran korang semasa memandu dan untuk membuat perjalanan apabila perlu - bukan hanya untuk kenderaan polis tetapi kenderaan kecemasan seperti trak kebakaran dan juga ambulans. Dan korang juga tak berhak untuk menggunakan lorong kecemasan kecuali ada kecemasan! [UNTUK BACAAN LANJUT: If you illegally drive on the emergency lane and get hit, who’s wrong?]"
"Can you get in trouble for Instagramming the new Avengers movie in Malaysian cinemas? If you were born before streaming services like Netflix became main-stream (pun intended), you probably remember the times you could find pirated DVDs of movies being sold on the street. The DVDs would come really cheap, but were very questionable in their quality. Assuming you find the correct movie on the DVD at all, the camera would be shaking, you hear the sounds of the audience coughing and laughing, and you’ll even see the shadows of latecomers walking across the screen. Clearly, this movie was recorded in the cinema. We generally accept that recording the entire movie is illegal since the cinema usually puts up an awareness advertisement before their movies, stating that recording movies is illegal and is a copyright offence. Ironically, this is sometimes illegally recorded as well But what about taking a 10 second clip for an Instagram Story, or taking a few pictures for a social media post? This was an issue Malaysian cinemas faced upon the release of Avengers: Infinity War, a lot of Malaysians were taking videos and pictures of the movies even after being told not to by the cinema staff. But that’s not copying the entire movie so it’s okay, right? To understand the issue, let’s start with why it’s illegal to record movies in the first place. Movies are protected by copyright According to Malaysian Copyright Law, moviemakers have certain rights that are protected under Section 13 of the Copyright Act 1987, for a period of 50 years from the year after publication. Section 22 - Copyright Act 1987 “Copyright which subsists in a film under this Act shall continue to subsist until the expiry of a period of fifty years computed from the beginning of the calendar year next following the year in which the film was first published.” The rights protected include the right to publish the work to the public, and to reproduce the work in any material form. [READ MORE - How do you get your work copyrighted?] If anyone wishes to use the work, it must come under one of the exceptions in Section 13. The exceptions allowed by law generally cover situations where the work is used for education, criticism, news reporting, and parody (you can find the full list in Section 13(2) of the Copyright Act). Contrary to popular belief, it’s not just how much you copied that matters, but the reason you copied as well. So, recording even a small part of a movie can be a copyright infringement if it was done for the wrong reasons. Since making a social media post just to show snippets of a movie does not fall within any of the legal exceptions, it may be considered illegal. But, some pictures and recordings might be considered “fair dealing” in copyright law To be able to use a part of someone’s copyrighted work, you can also make sure that your usage is compatible with “fair dealing” provisions in Section 13(2A): “…in determining whether a dealing constitutes a fair dealing, the factors to be considered shall include— (a) the purpose and character of the dealing, including whether such dealing is of a commercial nature or is for nonprofit educational purposes; (b) the nature of the copyright work; (c) the amount and substantiality of the portion used in relation to the copyright work as a whole; and (d) the effect of the dealing upon the potential market for or value of the copyright work.” Basically, to determine whether dealing with a copyrighted work is considered “fair”, the following factors will be considered - the purpose of the dealing (like if it was non-commercial, or for education), the nature of the original work, the amount of the original work that was copied, and whether the dealing affects the potential market or value of the original. Let’s use the example of putting snippets of a movie up on social media again. Most people don’t make money off such posts, the amount copied is really small (only 10 seconds or just a few pictures), and a social media post can’t exactly steal sales away from the original movie. Seems like a fair use of the original material right? In theory, it works out. But nobody really knows how the law will apply in practice until an actual case goes to court. As long as you’re not making a long recording for Facebook Live or to publish it in another way, you’re probably not going to get in trouble with the producers of the film. However, copyright laws are only one part of the equation. You might be fine including a clip of the Avengers movie in a film case study, but it’s still best you don’t do any recording in a cinema because... It’s a crime to record movies in a cinema Unfortunately, Instagram enthusiasts should probably hold back on posting an Instagram Story of their cinema experience because it is a criminal offence to record a movie in cinemas, whether it’s 10 seconds or 2 hours. As per Section 43a of the Copyright Act: “Any person who operates an audiovisual recording device in a screening room to record any film in whole or in part shall be guilty of an offence and shall on conviction be liable to a fine of not less than ten thousand ringgit and not more than one hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.” – emphasis added Attempts to record a movie are also punishable with a fine of between RM5,000 to RM50,000, and/or imprisonment for up to 1 year. And since you might ask, “audiovisual recording device” in this law means: “...any device which is capable of recording or transmitting a motion picture or any part thereof” So yes, that includes your phone camera. Furthermore, cinemas usually have house rules for their patrons to follow, which usually include rules like “no outside food and drinks”, and “no recording allowed”. These house rules are like conditions you have to follow to get permission to enter the cinema. If you break those rules, you no longer have permission to be there. Cinemas may from time to time arrange for their staff to monitor their halls, and if someone is caught trying to record a movie, the staff have every right to throw them out. So don’t record movies to show on social media It’s always exciting to finally go watch a long awaited movie. And in all that excitement, it’s also natural to want to share your cinema experience with your friends on social media. Go ahead and take those pictures outside the cinema halls, like with your popcorn, or the movie posters and pop-up props...however you like to make your social media posts. Just keep those lenses away from the cinema screen."
"M'sian authorities have to investigate if their officers mess up. But what if they don't? Say you’re queuing up at the ATM and a policeman walks up to you, flashes his badge, and cuts your line because “he’s a policeman” (true story). Or perhaps, more commonly, you get pulled over for using the phone while driving and the policeman tells you that he can “settle” the problem for a mere RM50. Chances are, you may have experienced or heard of a situation where an enforcement officer (like the police, JPJ, or customs) may not have done their job properly, misused their authority, or perhaps outright asked for a bribe. While we know that lodging a complaint is an option, it usually doesn’t happen because we don’t know how to go about it or, more likely: “Aiyah, they won’t take action anyway” However, if your complaint to the related agency is ignored or not followed up on, it isn’t a dead end. The Enforcement Agency Integrity Commission (EAIC) is a government body that’s been set up to receive and investigate public complaints about any enforcement officers or agencies that misbehave. To make that clearer, it means that you can make a complaint against the police officer (enforcement officer) that asked you for a bribe or against the PDRM (agency) if you complained about the officer and they ignored you. But we’re just using the police as an example here, because… The EAIC watches over 21 government agencies From familiar names to some that you may never ever encounter, the Enforcement Agency Integrity Commission Act 2009 gives the EAIC powers to supervise 21 government agencies listed below: Royal Malaysian Police / PDRM Immigration Department Customs Department Road Transport Department / JPJ National Anti-Drugs Agency Maritime Enforcement Agency RELA Department of Environment Department of Occupational Safety and Health National Registration Department Civil Aviation Department Industrial Relations Department Fisheries Department Department of Wildlife and National Parks Labor Department Ministry of Health (Enforcement Division) Ministry of Tourism (Enforcement Unit of Licensing division) Ministry of Domestic Trade, Co-operatives, and Consumerism (Enforcement Division) Ministry of Housing and Local Government (Enforcement Division) Commercial Vehicles Licensing Board Registrar of Businesses So now comes the question most of you are thinking – How is the EAIC different from MACC? Other than the obvious difference of their authority being derived from different laws – The MACC’s under the Malaysian Anti-Corruption Commission Act 2009 – it can be simply said that the MACC deals specifically with corruption by government agencies or their officers while the EAIC’s scope is a lot wider. Section 24(1) of the Enforcement Agency Integrity Commission Act 2009 lays down the scope of complaints that can be sent to the EAIC, which we’ll simplify below: A complaint can be made when an officer does something that... goes against procedures laid down by the law is considered unreasonable, unfair, or discriminatory is based on improper motives or irrelevant reasons isn’t legally or factually correct by proper procedure, requires them to give a reason, but they don’t doesn’t follow rules and procedures laid down by the law or the appropriate authority results in a criminal offence This means that the EAIC can be sent complaints ranging from “small” infractions such as a policeman asking you for a bribe or a JPJ officer stopping you to tell you how attractive you are (improper motives or irrelevant reasons); to those with more serious consequences such as death while in police custody. You can view some of their published investigation reports here. A complaint can also be made if the officer or agency doesn’t take action, such as not properly taking down complaints or not following up on an investigation. How do you make a complaint? While the EAIC also initiates investigations on high-profile cases, their bread and butter are reports by members of the public. Complaints can be made through 4 channels: In person – At their HQ in Putrajaya Via email – aduan@eaic.gov.my Website – e-Aduan Phone call – 03-8880 5651 / 5627 / 5625 Snail mail – Addressed to their HQ (in the link above) Whichever way you decide to make a report, you should be prepared to: Provide your personal details (Name, phone number, etc) Describe what happened, including where and when the incident took place Name the agency and the officer(s) involved, or at least a give description that will identify them Give the contact details of any witnesses (if any) Provide recordings, photographs, or any other evidence that may help in the investigation Be contacted by a senior officer to discuss the case We figured that you may have some concerns regarding the process, so we reached out to EAIC with some general questions: Should you make a report directly to EAIC or to the officer’s agency? If you’re reporting an officer, it’s up to you to decide if it should be forwarded to the agency the officer belongs to, or EAIC. However, if you aren’t satisfied with the results (or if no action is taken), then you can submit a report against the agency to EAIC. “It is up to the individual himself whether to lodge his/her complaint with EAIC or the respective agency. However, if there is no action taken after a complaint lodge to the respective agency, the complainant can pursue the matter with EAIC.” – EAIC, in email response to ASKLEGAL Bear in mind that even if you submit two reports – say to the EAIC and to PDRM – only one investigation will take place to prevent overlaps. “If a complaint is filed and EAIC has commenced its investigation on the complaint, the relevant agency must not commence another investigation on the same complaint to prevent a dual investigation” – EAIC Do you need to make a police report? A police report isn’t necessary, but it also depends on what happened – if a crime was involved, like if you got assaulted by a RELA member, then you should probably make a police report regardless. “There is no necessity to make a police report. It depends on the nature of the misconduct and the enforcement officer involved.” – EAIC Will the EAIC reveal your identity? Your privacy as a complainant will be respected as much as possible. Your identity will only be revealed to the agencies associated with your complaint when necessary, ie, if it’s related to the investigation. “... other than reasons that deemed just and necessary, EAIC will not and has never disclosed the complainants’ identity.” – EAIC It’s also noteworthy that Section 52 of the Enforcement Agency Integrity Commission Act 2009 places a punishment of up to two years imprisonment and/or a fine up to RM100,000 for any EAIC officer found guilty of disclosing information related to the Commission. And now for the main question that everyone’s thinking of…. How do you know if the EAIC will actually do their job? We expect to see this question in the comments, so we included this question to the EAIC and their answer was SAD. As in Sistem ADuan. “EAIC has developed a system where the progress (stages) of investigation would be updated to the complainants via SAD (Status Aduan). The result of the investigation will be informed to both parties, i.e. the complainant and the complained officer from the respective agency.” – EAIC, in email reply to ASKLEGAL We won’t go into the stages of investigation in this article as there are several routes your complaint will go, but suffice to say, they all end with you being informed. You can view the full progress chart here. As a measure, the EAIC received a total of 545 complaints in 2017, of which 440 were against the PDRM. Of the total, 118 were forwarded for a full investigation while the rest were either rejected at the preliminary stages (baseless/unproven/agency not under EAIC purview) or referred to the MACC, PDRM, and/or the related agency’s disciplinary body. And the EAIC wants more complaints! One of the EAIC’s objectives is to get the public (meaning people like you and me) more involved in policing the authorities. Very often, valid complaints are lost because it ends up as a social media post or a conversation at the mamak because there’s an assumption that the authorities won’t take any action “against their own people”. We need to remember that the authorities need to be notified in order to take action and, unless a social media post gets viral, there’s a pretty high chance that the offending officer or agency will get away with whatever they did. If anything, being placed under investigation is in itself a good reminder that people are watching and holding them accountable. P.S.: A majority of complaints forwarded to the EAIC were related to officers not following procedures set down by the law. If you’d like to know what your rights are, here are a few articles you can start off with (and follow us on Facebook!) [READ MORE: Is the PDRM allowed to search your body without a warrant?] [READ MORE: How do you know if you get arrested by the PDRM?] READ MORE: Can the police search your car at a roadblock?]"
"How well do you know Malaysia's Road Rules? Take our quiz and find out! Every driver knows the Road Rules of Malaysia, or do they…? Some of these rules are common sense, but some of these need you to know a little more than what was in your learner’s ceramah. (you were listening, right?) Do you really know the rules of the road? Or do you know the coffee rules better? Take our quiz below and we’ll tell you if you bought coffee for your driving test examiner. Let us know how you did in the comments ;) Answers sourced from JPJ’s driver curriculum, the Road Transport Act 1987, and the Road Transport Rules 1959. (no peeking okay!)"
"From now till GE15, Malaysia has no Prime Minister or MPs. So who's running the country? Note: The article was originally published in April 2018, and updated in October 2022. After a week of speculation, where PM Ismail Sabri met with the YDPA not once but twice, it’s official: election time is finally here. PM Ismail Sabri announced the dissolution of Parliament on 10 October 2022 after obtaining consent from the Yang di-Pertuan Agong. As for the election date, we will need to wait for it to be announced by the Election Commission. As a result of that, every seat in the House of Representatives (Dewan Rakyat) – becomes vacant. Until the new government is elected, all Members of Parliament (“MPs"") are no longer MPs. They lose all their parliamentary privileges and revert to being ordinary members of the public. This means that for a brief period until the new government is elected, we do not have an ‘official government’. Soooooooo…….. who’s in charge and runs our country now? Actually, the same people After the dissolution of Parliament, the current government and its existing members still remain in charge of their departments, until the leader of the winning party in an election meets the Yang di-Pertuan Agong to obtain consent to form a new government. So, technically, PM Sabri and his cabinet ministers still remain in office and stay in their jobs until then. The only difference is that they cannot use the title 'MP', as they are no longer one. The first thing that comes to mind is why don’t they lose their jobs if they are no longer an MP anymore? To answer that, let’s take a look at what our Federal Constitution has to say on this point: Article 40 of the Federal Constitution (in part): ”In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or a Minister under the general authority of the Cabinet...” Article 43(1) of the Federal Constitution (in part): “The Yang di-Pertuan Agong shall appoint a Jemaah Menteri (Cabinet of Ministers) to advise him in the exercise of his functions.” From the above, one can safely say that, in normal circumstances, the Yang di-Pertuan Agong will have to appoint a Cabinet or Minister to advise him in the course of his duties. Be that as it may, the Federal Constitution is silent as to whether or not this advisory role continues after dissolution of Parliament as there are no express statements (provisions) on that. This issue appears to have been clarified by the Federal Court decision of Abdul Ghani bin Ali Ahmad & Ors v Public Prosecutor [2001] 3 MLJ 561. Here, the Federal Court decided that since the word ‘shall’ was drafted into Articles 40 and 43 of the Federal Constitution respectively, this shows that the Cabinet Ministers must exist at all times. Hence, there cannot be a ‘gap’ of government as there must always be a government to continuously advise the Yang di-Pertuan Agong. With that, the Federal Court indirectly held that a government exists even during the period when Parliament is dissolved. This government is known as the ‘caretaker government’, as they are in charge of taking care of the country until a new government is formed. The leader of the current caretaker government will be PM Sabri, who will be the ‘caretaker Prime Minister'. Similarly, at state level, after the dissolution of the respective state legislative assemblies (Dewan Undangan Negeri), the current state governments will continue to administer as caretaker governments. Still, despite the Federal Court’s interpretation of Articles 40 and 43 of the Federal Constitution, there is no Malaysian law that defines the role and function of a caretaker government. So, where did the concept of a caretaker government come from? It all started, a long time ago... The concept of a caretaker government is not developed through law. It is a convention that is practiced in Commonwealth countries such as the United Kingdom and Australia. Before we get into the specifics of a convention, let’s talk about how conventions developed in the first place. As all laws are always linked with the past, the same can be said about conventions. You may have come across the terms written laws and unwritten laws. Written laws are plain simple, they basically refer to laws that are contained in any form of official document. Unwritten laws on the other hand are the portion of laws that are not passed by the Parliament and cannot be found in any other document. They are developed through English common law, decisions of the courts, and customs. [READ MORE: Where does Malaysia get its laws from?] This was exactly how conventions came about – unwritten rules that have emerged from customs, understandings and practices. They are rules of political practice that have been transmitted from generation to generation in Westminster-style (what we call the Parliament in the UK) parliamentary systems and other commonwealth countries and, after repeated practice, they have become formalised into a rule of conduct called conventions. As we are part of the Commonwealth, these practices and forms of political behaviour have gradually crept into our parliamentary system from the days of British rule. We have even developed our own conventions throughout the years. Here are a couple of conventions that exist in Malaysia: Under the tradition and convention set by the Conference of Rulers, the Yang di-Pertuan Agong is appointed based on a rotating monarchy system among the Sultans. Although there’s no law to say this, it’s a social and political norm that the Prime Minister has to be Malay. Further reading here, here, and here. Although conventions are largely acknowledged and accepted, they cannot be enforced by the courts since they are not laws. So, any government found to have breached a convention will not face any form or mode of punishment. Be that as it may, conventions are rarely breached because it usually gives rise to criticisms that can ultimately result in a loss of support by the public. Perhaps it might be easier to just think of conventions like weddings – there are “accepted” traditions that a couple have to go through, like a kenduri or a tea ceremony, but not doing it doesn’t make them any less married in the legal sense (as long as they’ve registered). The only major repercussion they’ll have to deal with from not following these traditions are disapproving in-laws or gossiping relatives. Things caretaker governments can and cannot do Basically, the function of a caretaker government is to ensure that the ordinary day-to-day administration of a country continues without disruption during the dissolution of Parliament. However, a caretaker government is only a minimum government as it does not have the mandate of the people. As such, a caretaker government cannot do anything that can bind a future government. Although there are no provisions on this, it is strongly believed that a caretaker government should NOT: Make any major policy decisions which will bind a future government; Enter into any major contracts; Make any significant appointments; and Make any international visits to avoid entering into major international agreements that can tie a new government. If Parliament is dissolved to pave way for an election, there are further rules of conventions that caretaker governments must abide by to ensure that it does not gain an unfair advantage over other political parties. As caretaker governments are technically still in office, there is potential for abuse in using government or state machinery during political events during election campaigns. With regard to this, firstly, all MPs must firstly return all the facilities granted and provided to them by the Dewan Rakyat and Dewan Undangan Negeri, such as their official cars. Also, a caretaker government must not use any public resources and funds during the general election. As a note, this would not apply to programmes such as BKM, as technically any application of aid that has been budgeted and approved by the Parliament and the respective state legislative assemblies can be handed out because it has been passed beforehand. What if you need your MP’s help during this time? As of now, there is no code of conduct that caretaker governments must abide by in law when Parliament is dissolved. However, there are proposals by the Attorney-General and the Election Commission to formalize code of conducts for caretaker governments into law. Meanwhile, Bersih has been pushing for the implementation of a code of conduct as well. A full list of the do’s and don’ts of a caretaker government proposed by Bersih can be found here. If you have any issues during this period, you can still meet your local MP to address your problems. However, remember that since they have “lost” their title as MP, they may not have the resources nor the obligation to assist you."
"Can you legally stop someone from taking photos of you in Malaysia? You’re probably no stranger to people whipping out their phones to take a picture or video whenever something “interesting” happens in Malaysia. Whether it’s a case of road rage, an angry customer who took it too far, or even a case of stealing ideas for a marketing campaign, these incidents almost always go up on social media and sometimes go viral as well. [READ MORE - Is it illegal to steal ideas in Malaysia?] While in the above situations, there’s usually an intention to blame and shame, we also innocently take pictures of other people from time to time. Usually it’s for candid photography of random people in the street, or the people involved just happened to be in the background of our photo. So is there anything legally wrong with taking a picture of someone without their knowledge? No, not in Malaysia anyway. There are no laws against taking photos in public In public, you’re probably in the clear to take any pictures or videos you want because we don’t have any laws prohibiting people from using a camera in public places. This is excluding any pictures that may be humiliating or insulting to others as you can be caught under Section 509 of the Penal Code. Penal Code - Section 509 - Word of gesture intended to insult the modesty of a person “Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes upon the privacy of such person, shall be punished with imprisonment for a term which may extend to five years, or with fine, or with both.” An example of a person found guilty under this law was one Mohd Tahir Osman back in 2009, who photographed a lady while she was urinating. The victim later sued Osman as well and was successful; her claim was allowed because of her trauma and humiliation. But her case does not state whether you have the right to sue someone for an invasion of your privacy (according to the judge in Toh See Wei v Teddric Jon Mohr & Anor). This means that while Malaysian law recognizes our right to privacy, suing for an invasion of privacy is a bit more difficult because it usually requires an extra element like humiliation, harassment, or damage to someone’s reputation for action to be taken. For example, you can probably take a nosy paparazzi to court for harassment if they’re following you around and taking pictures of you; but if they’re not publishing your photos to raise a scandal or using them in some questionable way, you have no way to control how they use the photos taken. Unfortunately, all this means that when you appear in public, you automatically consent to be seen by other people, and you therefore cannot stop anyone from taking photos or videos of you. If you still don’t want to be photographed, you can still hide your face of course. But don’t attack any photographers or demand that they delete your pictures. Depending on how far you take it, this can get you sued, or worse – arrested. [READ MORE - What can we do about peeping toms in Malaysia?] What about “no photo” signs? Must we obey them? You’ll see these signs here and there saying something along the lines of “no photography” or “no photo please”. Usually found in zoos and museums, some shops also sport these signs outside their premises. We generally consider it discourteous to take pictures where photography has been prohibited by the owners, but are the signs enforceable by law (and we therefore have to follow them)? It really depends on how you do it. If photography is prohibited by the premises, you can still take photos of the place from outside - no one can stop you. But, if you take the photos after entering the premises, the staff have every right to ask you to leave, and even kick you out if you refuse to comply. This is because zoos, museums, cinemas, and any other place which puts up a “no photo” sign are all private property. You’re not allowed to enter without the permission of the owner, and the owner has the right to impose conditions for you to enter the place. Break the rules and they have the right to remove you from the property. Think of it like the set of house rules you need to follow when you visit a friend - start prying into their cabinets and they might not want to have you over again. [READ MORE - You can sue people for trespassing on your home, but does that include AirAsia flying over your house?] If you’re in the photo, do you own it? In modern times, the person who made arrangements to have a photo taken is considered the owner, and therefore owns the copyright to it. In practice, this can mean that the photographer, the owner of the camera, or even the photo subject may not be the owner of the photo. Here are a few examples to illustrate. Ah Zai takes a picture of himself for social media. He is the owner of this photo. Ah Zai takes a picture of his best friends as a memory. He is also the owner of this photo. Ah Zai was hired by his best friends for a photoshoot. He may be the photographer, but in this case, his best friends will own the photographs. So no, you don’t own the photo just because you are in it. However, if you were modelling for a photoshoot, you can choose to include certain conditions for how your photos can be used in your contract. As an example, the contract can actually specify that your photos can only be used in the promotional material for company M’s campaign from April to June. Company M then cannot use it for anything else or after that period of time, and no one other than company M is allowed to use it either. Other countries may have different rules from Malaysia In summary, the general rule is that anyone can take pictures freely in public, though you might be subject to restrictions by the owners when entering private property. How you use the photos might be limited by criminal laws as well as any contracts you might have signed for the taking of the photos. There are laws for how people can use the photos taken afterwards (especially if they get up to no good), but don’t go snatching people’s cameras away even if they were not supposed to take pictures. Doing so can be considered battery or even conversion (you can be sued for this). [READ MORE - “Conversion” can be both a tort and a crime in Malaysia] Also consider that taking pictures to shame others on social media can invoke both the tort and crime of defamation, and could land you in trouble. If you plan on putting such a post up, you might want to give our article a read to find out what you can and cannot say. Make a report to the authorities instead if a you think a crime might have been committed. [READ MORE - Shaming someone on social media could be a crime in Malaysia] That being said, these are only the rules in Malaysia, and other countries may have different rules and cultural norms when it comes to public photography. It’s best to pay attention to the practices overseas to avoid unwanted trouble. The Star has published a photography etiquette guide here if you’d like to know more about the norms overseas."
"A Malaysian murder suspect was found innocent because of...bad body odour You have heard of the stories, of murders committed to hide another crime. Usually murders which happen are used to hide the fact that other serious crimes have happened...such as rape. Malaysia has had it’s fair share of such cases, ranging from the highly publicised murder of Canny Ong who was kidnapped from Bangsar Shopping Centre (her burnt body was later found along Old Klang Road) to the unsolved murder of Nurin Jazlin, believed to be a victim of sexual abuse. While Canny Ong’s murder has been solved and no suspects were ever put on trial for Nurin Jazlin’s murder, Malaysia has another case involving sex and murder case that remains unsolved despite a man being charged with her murder and brought to trial. This is the case of Noritta Samsudin, a company executive who was found bound up in her room by her housemates with one of the main contentions of the case being...a foul odour, a 6-foot tall man, and a suspect that turned himself in? We know that you smell a good story here so let’s dive into it. There are a lot of speculations in this case but we will keep it to the facts presented in the court’s judgment. A foul odour, a bound up body, and the silhouette Noritta Samsudin was your average 22 year old Malaysia. She lived in a room she rented from a couple and worked as an executive in a company located in Kuala Lumpur. On the 5th of December 2003, around 4.30am, her two housemates (Kenneth and Nor Azora) found her body after coming back from a night of drinking. We know you guys are probably aghast right now because first off, no one would ever want to discover a body and secondly, the circumstances in which Noritta’s body was found was pretty gruesome. Let’s back track a little and check out how the story unfolded. When the housemates reached home, they were surprised to find the house not lighted up. Okay, you might think that it’s 4.30 in the morning, obviously Noritta would have turned off the lights before going to bed because energy conservation y’all. However, Noritta, Kenneth, and Azora had an agreement to always leave the dining room light on before leaving the house. Upon unlocking the door and stepping into the hallway, Kenneth and Azora noticed a strong, unpleasant body odour at the main entrance area, wafting down the corridor leading towards the dining room area. After entering the house, Kenneth turned to lock the door and then he and Azora groped their way to their room. “Nor Azora’s reaction to the smell was that she thought the deceased had a visitor. It was the first time she had encountered that repulsive smell.” – High Court in describing the roommates’ testimony” – excerpted from the facts in the High Court judgment While Kenneth was busy unlocking their room door, Azora noticed a silhouette of a man to her right but ignored what she saw because she figured that Noritta had a guest over based off the fact that she encountered the foul odour for the first time ever. After they went into their room, Azora asked Kenneth if he saw a man standing out there but Kenneth answered in the negative and thought that Azora was just imagining things. If you guys watched Dukun recently, this is the part where you scream, “ORANG MINYAK”. Discomfited, Azora decided to leave the bedroom to search for the man she saw earlier. She walked out to kitchen and hall area but found no one. Suddenly...she realised that the front door was unlatched. The thing is...Kenneth locked the door before the two of them made their way to the bedroom. With increasing unease, Azora called for Kenneth and together, they called out Noritta’s name but she didn’t reply. Kenneth then went downstairs to call the security guards because they suspected that their home had been broken into. While Kenneth made his way down, Azora noticed that Noritta’s room door was slightly ajar. She peeped in and turned on the lights in Noritta’s room, noticing some items strewn across her room. While calling out Noritta’s name, Azora pulled down the comforter that covered her and...she found Noritta lying face down on her bed. “Her body was found faced downwards on the mattress on the floor of her room. Her head was inside a tied pillow case, both her hands were tied together with an electric iron cord, behind her back, and her legs were also tied with an electrical cord and a bra. She was completely naked but the body was covered with a comforter when she was first seen.” – excerpted from the facts in the High Court judgment Azora then panicked and rushed to her bedroom window to call for Kenneth who was downstairs at the guardhouse. As she was doing so, she noticed a man walking towards the guardhouse while putting on a shirt. She thought that he was the same man she noticed in her house earlier and shouted out, “Bastard, stop. I think you are a killer”. She rushed down and alongside Kenneth and one security guard, tried to looking for the man she saw to no avail. After this, Kenneth asked the head security guard to accompany him up. They entered Noritta’s room and Kenneth called out her name but there was no response. He moved to untie the pillow case around her head. After removing it, he found a bolster case tied around her face, covering her mouth. Kenneth untied the knot behind her head and as the case loosened, a piece of face towel, wadded into a ball fell out of Noritta’s mouth. He attempted to resuscitate Noritta but failed and then called the police. It seems that Noritta was either a victim of rape and murder or...of a sex play that went painfully wrong. The police started their investigation and then... One day, the suspect just walked into the police station The police collected a whole bunch of evidence such as: 3 different seminal samples from the mattress 11 pieces of tissue paper with semen stains from the waste paper basket All the items that were used to tie up Noritta From all the collected evidence, the police found several DNA samples, one belonging to Noritta and the rest belonged to...two different males. The person who surrendered was Hanif Basree Abdul Rahman, a 36 year old Shah Alam city council engineer. If you are wondering, yes, his DNA was among the ones found in Noritta’s room. He was then formally charged with Noritta’s murder in court. “Bahawa kamu pada 5.12.2003 di antara jam 1.30 pagi hingga 4.00 pagi di...Kuala Lumpur, telah melakukan bunuh terhadap Noritta binti Samsudin, KP: 810211- 02-5166 dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 302 Kanun Keseksaan yang boleh dihukum di bawah seksyen yang sama.” – excerpted from the facts in the High Court judgment As the case went to trial, there was one crucial thing that the prosecution brought up as circumstantial evidence of Hanif’s guilt. The thing was...before Hanif surrendered himself to the police, he had shaved his pubic hair and trimmed his nails. The Deputy Public Prosecutor told the court that this shows that Hanif tried to destroy all evidence linking him to Noritta. They further told the court that Hanif had asked whether the DNA evidence could link him to Noritta’s room at the night of the murder. The prosecution also called in the security guards as witnesses and they gave their testimonies in court. In short, what they told the court was this: They said that Hanif was a regular visitor at the condominium and would usually come in with Noritta at around 2am On the day of the incident, Hanif entered the condominium before 1am and later on, they saw him and Noritta talking to two Malay couples in a Kancil outside the condominium compound They did not see him leaving the condominium If you are thinking that it’s pretty impossible to remember who goes in and out because Hanif must look like a regular Malaysian dude, right? Well...not really...the thing is Hanif is about 6 feet tall, which is an anomaly in Malaysia. Oh snap, two witnesses testifying against Hanif and the DNA evidence? Things don’t look too good for our good ole’ engineer. TV shows have told us that DNA is most damning evidence to place a suspect at the scene and convict him. We see it all the time when police suspects crumple on TV the moment the detective whips up a strand of hair in a plastic baggie. However, the thing is, what do all these evidences mean in law actually? The law is divided into direct and circumstantial evidence In law, regardless of whether it is civl or criminal, there are always things that need to be proved in order to establish the offence or cause of action. These things are known as facts in issue and they are basically the main ingredients in the offence. For example, for Noritta’s murder, the prosecution had to establish these few things: That the death of Noritta had taken place That her death had been caused by or was a result of something Hanif did The act was done with the intention either of causing death or of causing bodily injury sufficient to have caused her death. Aside from facts in issue, the prosecution could also bring up relevant facts which can help bolster the facts in issue. The relevant fact that the prosecution brought up was the motive of jealousy. They argued that Hanif had murdered Noritta out of a fit of jealousy because she was close friends with another guy. Now, relevant facts may help prove facts in issue but that depends on how much weight they carry. Now, we have the evidence that goes to prove the facts in issue or relevant facts. The kind of evidence that can prove either types of facts are divided into two; direct evidence and circumstantial evidence. Direct evidence is exactly as its name suggests – it directly proves a fact in issue/relevant fact. On the other hand, circumstantial evidence is a little more complicated – it does not directly prove a fact in issue/relevant fact but it allows such an inference. In order to convict on circumstantial evidence alone, the circumstantial evidence must lead the court to the irresistable conclusion that Hanif committed the crime. If there is some other reasonable explanation that the circumstantial evidence provides, the court cannot convict. Let’s break down the evidences found in Noritta’s murder: The testimony by the guards only showed that Hanif was at the apartment at the time of the murder, not that he murdered her. So, this is circumstantial. The DNA evidence showed that Hanif had sex with Noritta some time before her death but it did not conclusively place him as the last person to have sex with her and even Hanif admitted that he and Noritta had a sexual relationship and he last saw her the day before the murder. Therefore, this is also only circumstantial. As a further plot twist...the court found out the security guards actually gave different testimonies to the police and changed their stories a few times. Their initial statements said that they saw Hanif at the apartment but...on the day before the murder. They tried to argue that they were in “panic mood” and failed to remember what happened but the court realised that their stories also had inconsistencies as to what Hanif and Noritta wore and said this: “This Court had had the benefit of seeing and hearing both these witnesses and their performances can only be concluded as one abhorrent harmonious lie on this crucial aspect of the evidence, which must be absolutely rejected.” – High Court in PP v Hanif Basree Abdul Rahman As you can see, the strength of the prosecution’s case was founded on the two witness’ testimony which was shown to be untrue. As a matter of fact, even if the testimonies were accepted, they were still only circumstantial and the testimony of the two housemates actually contradicts theirs. The housemates testified that they knew Hanif very well and both mentioned that they had never smelt such a foul odour emanating from Hanif. As a matter of fact, Azora testified that the man she saw had a darker complexion than Hanif. Given all of this, the court decided to... Find that Hanif was not the murderer Yup, that’s right. The court decided to acquit Hanif because of four important reasons: They found that the two security guards were not credible witnesses The unexplained foul odour It was not proven that Hanif was the last person to have intercourse with Noritta The presence of the unknown male’s DNA We already mentioned the guards’ credibility in the part above but the damning part is that the prosecution failed to explain the presence of the unknown male’s DNA evidence. The court said that given how Noritta’s arms and legs were tied after she died and how only the unknown male’s DNA was found on the electrical cord and bra used to tie her up, he was most likely the last person to be with her. “...scientific evidence, standing alone, had not enabled the prosecution to establish at the prima facie stage of the proceedings that the accused person was responsible for the murder. It did not even establish that the accused was the last person to have been with the deceased. Quite the contrary, the High Court would find that the person identified as Unknown Male 1 was in all likelihood that last person.” – High Court in PP v Hanif v Basree (emphasis added_ The court said that based on all the above, the prosecution had failed to even make out a prima facie case (basically, a basic case) and hence, acquitted Hanif from the murder charge. Yes...the murderer is still at large Unfortunately, Noritta’s case has gone cold. The unknown male was never found nor identified. Based off the fact that there were no signs of a break in or signs of struggle from Noritta, it seems like she knew the person who murdered her. Some of you might think that this was a simple case of some bedroom activities gone wrong (and it was argued by the defence) but the thing is, the evidence showed that the towel was shoved into her mouth with enough force to cause her tongue to collapse and potentially block her airway. “...forcing an article like a piece of face towel into the deceased’s mouth could have caused her death since the collapse of her tongue from that force could cause the deceased to choke...was of the view that the death was wilfully caused...” – excerpted from the testimony of doctor who conducted the post-mortem on Noritta in the High Court judgment Perhaps, we will never know."
"Can you get your bail money back after paying it to Malaysian courts? Imagine yourself getting arrested for a minor offence. You’re put into the lockup and within 24 hours, you’re brought before a judge for a hearing. After the hearing, he sets your bail at RM10,000. Bail is basically a sum of money you pay to be released from police custody, so that you can go home instead of staying in jail while waiting for your court trial. (it can take a long while if the courts are busy) RM10,000 is a lot of money, but now you’re free to go home instead of spending the night in the lockup. So...what happens to the money? Can you get your money back later? We asked lawyer Bryan Ng from law firm Dee, Netto, Fatimah & Ng to release us from the prison of ignorance on this subject. [READ MORE - How do you know if you can get bail?] The bail money is to make sure you come back to court You’re not exactly proven guilty of a crime yet, but you’re still a suspect. When the police release you to go home, how do they know for sure that you’ll come back when it’s your turn to stand trial? Simple, the bail money you paid gets forfeited if you don’t come back to court. [READ MORE - Here’s what needs to happen before you’re actually considered a criminal] The bail amount acts as a security, just like the collateral you provide when taking out a bank loan. Bank X provides you with a loan for your house, but they hold onto the land title as security until you pay off the loan. Bail works similarly - the judge provides you with the freedom to go home, but they hold onto your bail money until you go through with the court process. So yes, you do get your bail money back. Which brings us now to how you’re going to get the money back. To make sure you get a full picture of what’s going on, we’ll start from the time when you actually pay the bail. You need someone to be your “bailor” Assuming the court allowed you to be released on bail, they need you to get a “bailor” - to pay your bail money. This will probably be a family member or a friend. According to Bryan, the court will hand the bailor a sheet, or even just a piece of paper stating the case number and your name. The bailor brings that paper to the court counter (normally on the ground floor of the court building) to post bail. And then, the bailor needs to open… a bank account. “To post a bail, the bailor needs to open a bank account. The court counter will give them an instruction sheet on how to post a bail, as well as a document they need to hand over to the bank officer. The bailor will go to the respective bank and open an account to deposit the bail money. Then, most likely, a bank book will be issued.” - Bryan Ng, in e-mail interview with ASKLEGAL After that, the bailor is supposed to bring the bank book back to the court counter, and a receipt will be issued (remember this receipt and keep it!). You’re now released on bail! Now, make sure you attend every court session required... As previously mentioned, the bail money is held to make sure you attend court later on. You must attend every single hearing and court session without fail, or the bail money will be forfeited, AND a warrant for your arrest will be issued. When can you finally get your bail money back? When the case is either over, or you are released (whether you are proven guilty or not). “Once the case is disposed or the accused is released (whether discharged, acquitted, or convicted), then the bailor can go and claim back the bail money from the court counter.” - Bryan Ng, in e-mail interview with ASKLEGAL At your last court session, you’ll want to make sure your bailor attends too (they’ll need to be there when you redeem your bail money). Now, we get to how you get your bail money back. Get your bailor to bring the receipt from earlier To get the bail money back, your bailor needs to be present, and must bring the receipt they got from the court counter at the beginning. Once your case comes to an end, your bailor can then collect the bank book from the court counter using that receipt. “Normally, the accused’s case file has to be delivered down to the court counter first. This usually takes some time, about 15 minutes or more. After that, the bailor can then present the receipt and get the bank book back, which they can bring to the bank branch they opened the account at to reclaim the bail money.” – Bryan Ng, in e-mail interview with ASKLEGAL It’s okay if your bailor can’t attend court on the day of your final session. They can always go to the court counter on another day to reclaim the bail money."
"When can political parties legally put up flags for pilihanraya... and can you remove them? [Article originally published in May 2018] Ah, election campaign flags – or, put simply, (insert political party name here) flags. On one hand, they easily draw our attention to the fact that elections are around the corner, and show us how determined our local politicians are to win what is arguably the most anticipated political event in Malaysia. To a certain degree, one might even say that it lends an air of festivity, especially when people get creative by fashioning marriage chairs, tanks, or even ships. On the other hand, they can be terrifying nuisances, particularly when there are just too many of them in one place – sometimes obstructing traffic, creating litter, and presenting a general safety hazard. For example, Tenaga Nasional has issued a reminder to all political parties to not put up any banners on their premises or electrical installations due to risk of electrocution and fire. This might perhaps cause you to wonder if there are laws which govern the placement of election flags or, more likely, whether we can get in trouble for removing the flags if they become an obstruction or simply because we don’t like the party? The answer to this can be a little tricky, as we must first know that... Parties are given a specific time frame to promote themselves Political parties and their candidates are only allowed to start convincing you that they’re the best leaders for the country during what’s called a campaigning period – a specified time frame announced by the Election Commission (EC). Once the election campaigning period begins, the EC governs how parties conduct their campaigns across the country, including the placement of election flags as they are regarded as campaign materials. Certain sections of the law also “come into effect”, such as Section 24B(4) of the Election Offences Act 1954 which states that these flags can only be placed by nominated election candidates (or their agents) who have been given explicit permission to do so by the State Elections Director. They can also only be placed within the constituency that the candidate is contesting in, which means that if a candidate is contesting in the Gombak constituency, for instance, he or she cannot place flags in Lembah Pantai. Not just that, they’ll also have to pay a specified deposit to the State Elections Director to ensure that no rules are broken, and that they’ll be cleaned up after the election. More on this later. Section 24B(4) of the Election Offences Act 1954 – Election campaign and limitation thereof (In part, emphasis added): A candidate or his election agent may, during the campaign period … display ... election campaign materials to members of the public in the constituency in which the candidate seeks election but only if he (a) holds a permit to do so issued to him by the State Elections Director, … (b) has paid to the State Elections Director a deposit of five thousand ringgit in the case of an election to the Dewan Rakyat and three thousand ringgit in the case of an election to a Legislative Assembly. Those who place election flags without the required permit can be charged with a maximum fine of RM3000 or one year of imprisonment, if not both, for breaching this law. So, if parties are only allowed to put up flags during a specified period, you might be wondering why you’ve been seeing them in certain areas even before that. Well… Parties also have to follow council by-laws Very quickly, local authorities such as state governments or municipal councils (majlis perbandaran) have the power to enact by-laws, which are regulations that are only enforceable within their jurisdiction. To this effect, candidates or parties will also require their permission before putting up any campaign materials. Election flags may, for example, be subject to by-laws on advertising or vandalism if placed before the campaign period and can be taken down by the council, with those responsible being charged under these by-laws – similar to unauthorized ah long ads. Because the EC only has the authority to act during the campaign period, it’ll be up to the local authorities to govern whether or not party flags can be put up before the period, and to punish those who violate the rules. “We want to make this clear. The commission has no authority to take action against any parties, ordering them to take down or remove the campaign materials like posters or flags because the election process has not started. The EC can only act during the official election campaign period as stipulated under the Election Offences Act 1954.” – EC chairman Tan Sri Mohd Hashim Abdullah, as quoted by New Straits Times. As an example, the Kelantan State Government has asked parties to take down flags which have been strung up along major roads, while Putrajaya has allowed them on a discretionary basis. What this means is that while putting up flags actually violate Putrajaya Corporation’s by-laws, they decided to allow it as long as the flags don’t pose a danger to the public or obstruct traffic as “everyone is already in election mode”. So will you get in trouble if you take down party flags? This is where it gets a little complicated. If you were caught removing them during the campaign period, there is a chance that your action could be seen as hostile against a party or candidate or attempting to sway people from voting for them. Section 4A(1) of the Election Offences Act 1954 – Offence of promoting feelings of ill-will or hostility (In part): Any person who, before, during or after an election, … does any act or makes any statement with a view or with a tendency to promote feelings of ill-will, discontent or hostility between … the population of Malaysia in order to induce any elector or voter to vote or refrain from voting at an election or to procure or endeavour to procure the election of any person … Running afoul of this can get you sentenced up to five years of imprisonment and/or a fine of up to RM10000, along with your ability to vote revoked for five years from the date of conviction. If you have political aspirations, you won’t be allowed to run for election as a candidate in that period too. However, it’s arguable whether or not removing flags before the campaign period is an offence, since they’re not technically supposed to be up in the first place. There have been a couple of instances where members of the public were either arrested or investigated for removing party flags, such as 3 women who were detained by the police for cutting down BN flags in Taman Tun; or the investigation into the video of a man pulling down flags in the Bukit Bintang area. Both incidents were investigated under Section 427 of the Penal Code: Section 427 of the Penal Code – Committing mischief and thereby causing damage to the amount of twenty-five ringgit : “Whoever commits mischief and thereby causes loss or damage to the amount of twenty-five ringgit or upwards, shall be punished with imprisonment for a term * of not less than one year and not more than five years or with fine or with both.” This has been highlighted by Maria Chin Abdullah, who said that there was no reason for the 3 women to be arrested, and that action should be taken against those who put up the flags in the first place. But laws aside, taking down a flag on your own may not be the safest idea because it can lead to violent confrontation, such as a youth who was beaten unconscious by four men who caught him removing a flag during GE13. Even the authorities aren’t spared, with a recent attack on Kota Baru Municipal Council staff attempting to remove flags which were hung without a permit. It’s best to make a complaint Rather than taking banners into your own hands, you can make a complaint to your local council and/or the EC (during the campaign period) if you find the banners obtrusive, hazardous, or objectionable, though we should note that not supporting the party will likely not fall into those criteria. However, if you really love the party or are looking to build a collection of party flags, you may just want to get in touch with them to see if they have spares lying around, or simply wait till the post-election cleanup. Parties (or their agents) must remove all campaign materials within 14 days after the elections. Section 24B(8) of the Election Offences Act 1954 – Election campaign and limitation thereof (In part): Any election campaign material displayed or affixed shall be removed by a candidate or his election agent within fourteen days after polling day … This translates to say that no flags should be left hanging in any constituency two weeks after the election, and it’d be alright for you to take one home – as long as you don’t make a mess. Co-written by Phraveen & UiHua"
"You can cut a deal in Malaysian court to get a lighter sentence, but is it worth it? If you’ve ever watched crime movies or TV series, you might have seen a suspect being offered a deal by the police that goes like “give us a confession, and we’ll cut your jail time in half”. This is an example of what the legal system calls “plea bargaining”. Basically, suspects can plead guilty or provide information in return for a lighter sentence, or having fewer offences charged against them. [READ MORE - How do plea bargains work in Malaysia’s courts?] But if you ever get called to court for an offence, should you take the plea bargain or should you refuse it and let the court trial proceed? The major downside to this deal that you’ll probably need to consider is… If you accept, you lose the chance to prove your innocence What usually happens when you’re charged with a crime is that you’ll “claim trial” where you’ll plead that you’re not guilty. This is when “due process” happens – you get a fair trial where the prosecution has to prove their case against you, and you get to defend yourself against those accusations. If the prosecution cannot prove their case against you beyond a reasonable doubt, you’ll be acquitted (released of the criminal charges) by the judge. For all intents and purposes, this is the usual route most people would associate with “going to court”. However, before the actual trial happens, you’ll have to join a pre-trial conference with the prosecution (along with your lawyer if you have one) to discuss the case, and possibly be offered a plea bargain. If you’re actually innocent – or convinced that you’re innocent, at least – you’ll have to really think through this decision. You may not want to take the plea bargain because, by doing so, you must plead guilty. If you think you’re innocent you can, with the advice of your lawyer, go the “regular way” mentioned above, where your lawyer will try to prove your innocence by raising a reasonable doubt in the prosecution’s case. [READ MORE - Here’s what happens in court after someone gets arrested] In the opposite scenario, if you are actually guilty of a crime and have the option of a plea bargain, you may want to consider it because... The court can decide to go easier on you By making a plea bargain, the court can decide to give you a 50% reduction on the maximum prison sentence. This is provided under Section 172D(c)(ii) of the Criminal Procedure Code, but will not apply in a few cases like repeat offences, life imprisonment, and sexual offences. To illustrate how this works, let’s take the offence of “trespassing on burial places” as an example. The maximum prison sentence for this crime is 1 year. So if you get a successful plea bargain, you can only be sentenced to a maximum of 6 months. [READ MORE - Is robbing graves a crime in Malaysia?] The other thing is that if you are being charged with several offences, you can agree to plead guilty to some of them, in exchange for being released on the others. This type of plea bargain may not work if the prosecution has ample evidence to convict you of all of your offences. In those cases, you may want to opt for a different type of plea - a mitigation plea, which we’ve covered in a separate article: [READ MORE - Here’s how you make a mitigation plea in Malaysian court] By accepting, you could also save a lot of time (and possibly money) A plea bargain has to be made out of your own will, but why should you plea bargain in the first place? Time, money, and a discount on your sentencing (as mentioned in the previous point). The court systems in many countries usually have a backlog of cases that need to be heard. So for example, if you claim trial in February, your next court hearing may not be until June. If you’re actually guilty of the offence, asking for a plea bargain can save you a lot of time waiting between hearings and having to take leave from work to attend court, or have the pressure of an impending court trial looming over you. On top of that, you may be saving on legal costs if you hired a lawyer, since you don’t have to go through a drawn out legal battle. [READ MORE - What can I do if I can’t afford a lawyer in Malaysia?] Taking a plea bargain speeds up the process. You plead guilty, and you save your money and time; the court takes it easy on your punishment in return, and they save time as well. Win-win, right? If you ever face charges in court, a lawyer’s advice can help you out If you ever get arrested for a crime but aren’t sure if you’re actually guilty of it or not, a lawyer’s expertise can help you make the right decisions in court. Because what we usually think of as right and wrong can sometimes be different from how the law actually works. The legal definitions of certain offences may not be exactly the same as what we commonly understand. For example, most people don’t know that you don’t actually have to be driving a vehicle to be convicted of “drunk driving”. You just have to be in charge of the vehicle to be caught because the legal definition includes situations where there is a likelihood of you driving the vehicle. (so one way to be found innocent is to have a sober friend in the driver’s seat). [READ MORE - What are Malaysia’s laws on drinking and driving?] We sometimes make unwise decisions in life. And if that ends up with us getting slapped with criminal charges, it may be best to cooperate with the legal system, and cut the prison sentence in half."
"When can you perform a citizen's arrest in Malaysia, and how do you do it? Imagine yourself witnessing a snatch theft. They just made off with a lady’s handbag, and you’re right there next to her as it happens. In this situation, we usually think that our only option is to call the police. But the thieves are already running away, can the police arrive on time to catch them? If you’ve ever felt helpless in that situation, there’s actually something you can do about it. You can perform a “citizen’s arrest”! There’s something called an “arrest by private person” in Section 27 of the Criminal Procedure Code (CPC). An “arrest by private person” is what we usually call a “citizen’s arrest”. It’s a way we can protect ourselves and those around us while waiting for the police to arrive. Section 27(1) - Criminal Procedure Code “(1) Any private person may arrest any person who, in his view, commits a non-bailable and seizable offence or who has been proclaimed under section 44 and shall without unnecessary delay hand over the person so arrested to the nearest police officer or, in the absence of a police officer, take that person to the nearest police station.” Here’s where we answer your questions about what “non-bailable” and “seizable offence” mean. “Non-bailable” - Bail is basically a temporary release from police custody. You have to pay some money as security to make sure you return to court later on. If a crime is non-bailable, it means you are not allowed to get that temporary release. The list for which crimes are bailable and non-bailable is written in the First Schedule of the CPC. “Seizable offence” - This means an offence for which the police don’t need to get a warrant to arrest you for. The exact list is also in the First Schedule of the CPC, but it usually covers more serious crimes like robbery, and hurting others. Here are some examples we shortlisted: Robbery Breaking into a house Snatch theft Kidnapping Murder Rape Spreading fake news…!!! The recently passed Anti-Fake News Act classifies “spreading fake news” as a seizable offence, which as explained above, means that the police don’t need to get a warrant before arresting you. The general rule is that crimes with a maximum punishment of 3 years or higher will be considered seizable offences. [READ MORE - But what exactly is considered “fake news”?] But how should we arrest a suspect in the first place? There’s a specific way provided by the law to perform the arrest - and it’s very important that you don’t go overboard. Tying up a thief to hand him to the police and beating him to punish him are very different from each other. Section 15 of the CPC says that when making an arrest: You should hold or restrict the body of the person you’re arresting (tie them up if you need to) If the person resists arrest, you can use all means necessary to restrain them But you’re not allowed to cause the death of that person unless they committed an offence punishable with death or life imprisonment (basically, you should always make sure the guy doesn’t die under your watch) [READ MORE - Why do some Malaysians get arrested for killing robbers in self defense?] What do you do after arresting the suspect? Part of Section 27(1) of the CPC states that you must hand the suspect over to a police officer, or bring them to a police station. This means that you must either call the police right away and wait for them to arrive, or you can bring the suspect to the nearest police station. You’re not allowed to drag the suspect to a mamak and have a teh tarik while telling people your epic story about what happened. Do not allow anyone to harm the suspect either while waiting for the police to arrive - attacking a suspect who is no longer a threat is a crime in itself. Only perform a citizen’s arrest if you think you can handle it It may still be confusing which crimes you can actually perform a citizen’s arrest for, and it’s pretty difficult to memorise which exact situation you can do it in. As a general rule, if it looks like a person or property is being taken away or damaged, it’s serious enough to warrant a citizen’s arrest. But don’t worry if you arrested someone for a non-seizable offence by mistake, the police will have the power to deal with the suspect anyway. Performing a citizen’s arrest is a right given by the law to us, but it’s still an option and not a duty. It goes without saying that, while we have all the right in the world (or at least the law) to tie a robber up, we may not have the ability to overpower the robber and keep him down. To keep it practical and keep yourself safe, you shouldn’t push it if you don’t feel comfortable dealing with a potential criminal - it can be dangerous for yourself and maybe even others. There have been cases where people who tried stopping criminals have gotten injured badly, like this man who was run over by a car thief (warning: links to actual footage of the incident), and an elderly Malaysian who died trying to stop two snatch thieves. But hey, if you can handle the situation, you might just end up being someone’s hero."
"What does Malaysian law say about littering?  Did you know that about 23,000 tonnes of waste is produced in Malaysia every single day? If that doesn't sound disturbing enough to you, here’s a little bit of context – 23,000 tonnes is about: a quarter of the total weight of KL Tower; the maximum take-off weight of 41 Malaysia Airlines Airbus A380s; the total weight of 92 MRT trains; and the kerb weight of 21,400 Proton Sagas. #maths Unfortunately, a vast majority of the waste we generate ends up on our roads. This shouldn't come as too much of a surprise to Malaysian litterbugs out there as the amount of trash on our roads is directly proportional to the countless of excuse that they give every time they choose to conveniently chuck their trash on our streets. Our rivers and waters are not spared as well. In a recent study, the National Geographic cited Malaysia as one of the top eight countries generating the ocean's public waste. What kind of garbage is that?! So, given all of the above, here's what our laws have to say about littering... that will hopefully encourage our litterbug friends to clean up their act. We’ll start off with the laws first, followed by who’s actually responsible for enforcing these laws later in the article – it’s actually not as straightforward as you might think. Here’s where you can’t litter in Malaysia – on public property Although we strongly advise you not to litter anywhere, here are some specific places where littering is prohibited by law on public property: 1. Any soil or land Law: Section 24 of the EQA 1974 ”No person shall, unless licensed, pollute or cause or permit to be polluted any soil or surface of any land...” Penalty: Fine of up to RM100,000 or a maximum period of imprisonment of 5 years or both. The primary law on pollution in Malaysia is the EQA 1974. The key pieces of law regarding littering are sections 24, 25 and 29 of the EQA 1974 which covers the discharge of unauthorised or harmful wastes to land/soil and water. The sanctions for breaches of environmental laws under the EQA 1974 are in the form of a fine or jail terms. We even have our own Environmental Court to decide solely on environmental cases including offences under the EQA 1974. 2. Forest Law: Section 83 of the National Forestry Act 1984 ”No person shall commit offensive littering in a permanent forest”. Penalty: Fine of up to RM10,000 or a maximum period of imprisonment of 3 years or both. 3. All public places in general Law: Section 47 of the SDBA 1974 In summary, this law covers situations where any person throws or deposits rubbish in any public place. Penalty: RM 500 (Fine is doubled to RM1,000 for repeat offenders) On top of that, there is also the Anti-Littering By-Laws applied under the jurisdiction of the respective city/municipal/district councils in Malaysia. The compound that can be imposed varies depending on each jurisdiction. Say you live in Subang Jaya, the maximum fine that can be handed out is RM1,000 for littering. However, for on-the-spot littering offences, offenders will only be fined RM10. Yep, you heard that right, RM10. That is cheaper than the average daily parking rate in the Klang Valley. 4. Public sewer Law: Section 61 of the Water Services Industry Act 2006 ” No person shall discharge or allow to be discharged into any public sewer or public sewage treatment works any prohibited effluent...any noxious, volatile or inflammable substance...or any effluent, matter or substance from a garbage grinder...” Penalty: Fine not exceeding RM100,000 or a maximum jail term of 1 year or both. 5. Water Law: Section 25 of the EQA 1974 “No person shall, unless unlicensed, emit, discharge or deposit any...pollutants or wastes into inland waters...” Penalty: Fine not exceeding RM100,000 or a maximum jail term of 5 years or both. Law: Section 29 of the EQA 1974 “No person shall, unless unlicensed, emit, discharge...pollutants or wastes into the Malaysian waters...” Penalty: Fine not exceeding RM500,000 or a maximum jail term of 5 years or both. For the purposes of this provision, inland waters includes’reservoir, pond, lake, river, stream, canal, drain, spring or well’ whereas Malaysian waters means any ’territorial waters’. As heavy as the jail term for littering in inland waters and Malaysian waters might look on paper, you will be surprise to know that since this Act came into force on 15 April 1975, no one has been put behind bars for contaminating waters in Malaysia. Where you can’t litter in Malaysia – on private land 1. High-rise residential buildings Law: Regulation 9, Third Schedule of the Strata Management (Maintenance and Management) Regulations 2015 “A proprietor shall not throw – or allow to fall, any refuse or rubbish of any description on the common property or any part thereof except in refuse bins maintained by him...” Penalty: The amount of fine that can be imposed is subject to the management corporation. Again, the death of S Sathiswaran should serve as a reminder to all of us that it’s not cool to throw things out of your window from a high-rise residential building as this is not only an issue about cleanliness, but a safety issue as well. You can read more about that incident in our article. [READ MORE: Is it a crime to throw rubbish out of an apartment balcony in Malaysia?] 2. Landed properties Law: Section 74 of the LGA 1976 “Any owner, occupier or tenant of any house...who suffers the same or any part thereof to be in a filthy and unwholesome state or overgrown with rank or noisome vegetation, shall be guilty of an offence...” Penalty: Fine not exceeding RM1,000 or a maximum jail term of 6 months. This one refers generally to all owners who keep their house in an unmaintained state whether due to rampant littering or any other unhygienic practice. In this case, the local authority of your area not only has the right to punish you with a fine, but they can even issue you with an abatement order. In short, an abatement order is a notice served on owners of properties, warning them to stop the act of nuisance. We can put things into perspective by using this example: You have very filthy neighbours. Not only do they dump their rubbish in their compound, they also fail to clean them up. Every time you walk pass their house compound, a sizeable pile of rubbish and litter can be seen at their site. Soon you realise, that has attracted other animals like rats while the containers have gathered water, attracting mosquitoes. You tried talking to your neighbours to clean up their compound, but they always turn a deaf ear to you. Now you seriously think that their house has turned into a potential breeding ground for mosquitoes. What can you do? In this situation you should make a complaint to your Majlis Perbandaran. There are few things that your local authority they can do to your neighbour: Section 82 of the LGA 1976: Firstly, the local authority will serve a notice to the owners to clean up their premises within the time specified in the notice. If a notice has been served and the owner fails to respond to the notice or fulfill the requirements of a notice, legal action will be taken. In this case, the owner of a property can be fined of up to RM1,000 or imprisoned for a period of 6 months or both. For serious cases, an abatement order can be issued on the owner to stop or remove the act of nuisance. If the owner of an abandoned property can’t be found, the local authority can enter the property to clean the house immediately and recover all expenses incurred from the owner later. A running fine of RM100 per day can be imposed if there is a default in compliance with an abatement order. As last resort, the local authority can serve a closing order on the owner to close down the property and forfeit the property from the owner. Who is responsible for enforcing environmental laws? Enforcement of littering laws can be a little convoluted, so we’ll start with an non-littering example that some of you may have experienced before: You’re somewhere in Melaka and you decide to double-park alongside another car, thinking that you shouldn’t take too long. When you return half an hour later, you find a summons on your car windscreen issued by the Majlis Perbandaran Melaka (“MPM"") for illegal parking. Then, on the drive back to Kuala Lumpur, you’re so lost in thought for being fined that you drive past an AES Camera in excess of the speed limit. For this, you receive a speeding summons from the Jabatan Pengangkutan Jalan (""JPJ"") a month later. But, do you actually know why these summonses are issued by two different authorities i.e. MPM and JPJ? Here's why... In Malaysia, the administrative set-up is organised into a three-tier system of government: Federal Government – Government of the entire country formed by the ruling party; State Government – Head of Government ruling the 13 states in Malaysia; and Local Government – includes City Councils (Majlis Bandaraya), Municipal Councils (Majlis Perbandaran) or District Councils (Majlis Daerah). In order to ensure a smooth division of law-making powers, the mother of our laws, the Federal Constitution divides the powers to make laws between the federal and state levels under three different lists: Federal List (List I) states the matters that fall within the power of the Government. The State List (List II) contains the areas where state governments can make laws Concurrent List (List III) lists the matters that both the Federal and State Government may enact laws on. At the local level on the other hand, Item 4, List II of the Federal Constitution states that local governments fall under the State List as it is within the purview of state governments. Laws passed by the Federal Government are knows as ‘Acts’ whereas ‘By-laws’ refer to laws enacted by local authorities. So in the above scenario, both the JPJ and the MPM can issue you with a summons because they have concurrent powers to make laws on the management of traffic as it is a matter that falls under the Concurrent List of the Ninth Schedule of the Federal Constitution. If you want to know more about our Federal Constitution, you can read it here: [READ MORE: Where does Malaysia get its laws from?] In the context of this article, environment is a law with respect to ""public health, sanitation and the prevention of diseases”, an entry under Item 7 in the Concurrent List. Therefore, similarly, the federal, state and local governments have powers to enact and enforce laws on environment related policies. So if you are found guilty under environmental laws, the Jabatan Alam Sekitar at Federal level, or the Majlis Perbandaran of your local authority will issue you with a fine or punish you. As a general note, certain Federal laws may also consolidate all the laws and empower local governments to enforce them. The clearest example of that will be the Local Government Act 1976 and Street, Drainage and Building Act 1974. More on these two Acts below. Now that you know who can enforce and enact laws on littering, let's take a look at the laws covering litter in Malaysia. Littering is a crime, litter-ally For littering in Malaysia, a person can be found guilty under: Criminal law (based on fault and no-fault responsibility as well as nuisance under statute law); and Civil law (based on nuisance under the law of torts). First, let's see how you can be in criminal trouble for littering. Nuisance With regard to nuisance caused by littering specifically, if you have been keeping up with the news lately, you would have known about the news regarding a 15-year old boy who was killed by a chair thrown from a flat that struck him. This is a classic example of when littering can amount to nuisance. Now, let's take a look at what nuisance actually means under our Penal Code: Section 268 of the Penal Code (""PA”): “A person is guilty of a public nuisance, who does any act, or is guilty of an illegal omission, which causes any common injury, danger, or annoyance to the public, or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to persons who may have occasion to use any public right.” Long story short, nuisance is defined as an act or thing that causes annoyance or inconvenience to a member of the public. Section 290 of the PA goes on to say that anyone found guilty for causing public nuisance can be punished with a fine of up to RM400. But if this doesn’t bother you too much, repeat offenders can punished with a maximum period of imprisonment of 6 months with a fine or both. At state and district levels, section 86 of the Street, Drainage and Building Act 1974 (“SDBA 1974"") states that any act that is injurious or causes danger to health on any premises, building or watercourse constitutes as a nuisance. If a nuisance is caused, the SDBA 1974 empowers the State Authority to issue a notice on the person causing the nuisance to stop the act. Failure to do stop the act of nuisance will result in a fine of up to RM500. Further, the Local Government Act 1976 (”LGA 1976"") also contains laws on environmental criminal nuisance. Section 69 talks about nuisance in the case of water pollution within a local authority area whereby anyone found guilty of dumping rubbish in any water-course can be fined of up to RM2,000 or punished with a maximum period of imprisonment of 1 year. Criminal responsibility with & without fault A strict liability offence for littering is under section 25(2)(b) of the Environmental Quality Act 1974 (“EQA 1974”) which concerns discharging waste into inland waters: “A person is deemed to emit, discharge or deposit wastes into inland waters if … he knowingly or through his negligence, whether directly or indirectly, causes or permits any wastes to be placed in such a position...” Because the provision uses the words ”or through his negligence”, it shows that even accidental discharging of wastes into inland waters is covered as an offence – aka a strict liability offence. But how can you be held responsible for a crime if you didn’t know it was a crime? Well, read on to find out or skip to the next section where we’ll cover specific places where littering is prohibited by law. The foundation of criminal law is that there are two parts to a crime: Actus Rea; and Mens Rea. The first thing that comes to mind when you see these two terms is, what on earth are they? If you have been following us, you would have known that it’s not a Harry Potter spell. So, what is it? [TRY THIS QUIZ: Latin law term or Harry Potter spell?] ‘Actus non facit reum nisi mens sit rea’ literally means an act does not make a person guilty unless his mind is also guilty. The Actus Rea refers to the physical act causing the crime (‘guilty act’) whereas the Mens Rea proves that you are at fault for committing a crime (‘guilty mind’) because you have knowledge or intention to do so. So let’s say you’re found guilty for discarding a cigarette butt on a street, the Actus Rea is the act of throwing the cigarette butt. The Mens Rea here would be you knowing that you threw away the cigarette butt on the street. These two elements are applied across the board for most of the criminal offences, including environmental related crime. The exception to that is a category under criminal law known as ‘strict liability’ offences. For strict liability offences, the Mens Rea element need not be proved. In other words, any person can be found guilty under ‘strict liability’ even though they are technically not at fault because they are not aware of any wrongdoing. So, going back to the example earlier, IF it is a strict liability offence, even accidental dropping of a cigarette butt will be within an offence. Although there aren’t many strict liability offences on littering or under environmental law for that matter, an amendment is under way to create more strict liability offences. And you can also sue! You can even sue someone for littering under the tort of private nuisance. The law of nuisance is an ancient tort designed to ensure that you have the right to use your land in whatever way you wish without being interfered. An interference with this right only becomes unlawful when there is an ”unreasonable interference with the use or enjoyment of a land”. We will not go into the specifics of it. For a more in depth discussion on private nuisance, you can read it here: [READ MORE: Did you know that you can be taken to court for something that is NOT a crime?] As oppose to nuisance under criminal law, to form private nuisance under torts, there must be actual damage to your property. An example of how you can sue someone for littering is for flood damage. So for instance, if you found out that a nearby factory is responsible for the flood that damaged your property, by illegally dumping wastes into a nearby river, you can potentially sue the factory. The amount of money you can recover is usually measured based on the difference in the value of your property, before and after the act of nuisance. However, in most cases, seeking recovery of money is usually the the final resort to compensate oneself after a damage has been done. If you think that a factory nearby you can cause a future flood, you can apply for an injunction instead. An injunction is an order of court, stopping the continuance of a wrongful act. If you’re successful in applying for an injunction, that factory that has been dumping wastes illegally into your nearby river, has to completely stop the act of doing so. Or….. we could just stop littering? If you notice any litter around your area, you can report it to the local authority of your area. For more serious littering issues, you can direct your complaint to the Jabatan Alam Sekitar by contacting their complaints line at 03-88891972. It may be easy to say that complaining won’t help because nothing will be done, but nothing will be done regardless if the authorities aren’t notified of the problem. Solving the litter problem in our country requires a collective effort from all of us by firstly, deciding not to litter and advising others not to litter. Although the relevant authorities have their role and obligations, you can start by taking your own action."
"""Asking a question is not considered fake news in Malaysia"". Loophole or #fakenews? The Myth: If you add a disclaimer asking if whatever you’re posting is true or false, you won’t get in trouble for posting fake news. The Background: Just before we shifted topics to the upcoming elections, the issue of the day was the Fake News Law being discussed (and eventually passed) in Parliament. Understandably, there were many questions and concerns, among which was the fear that anyone could get in trouble for unknowingly posting or sharing something that turns out to be false. [READ MORE: Here’s how you may get in trouble with Malaysia’s Fake News law] But luckily, there’s a loophole! According to a message spread on Whatsapp and Facebook, a lawyer came up with the simplest get-out-of-trouble card that you’d be ashamed for not thinking of earlier: Here’s a cheekier variation: So did these people just figure out a genius way to game the entire system? The Verdict: Here’s why: It should first be noted that this article was written two days after the Anti-Fake News Bill came into effect, so there’s no means of seeing how it can be applied – we’re basically looking at this from a theoretical aspect based on the published Bill (the proposal for the law). Also, at the time of writing, the Act (the law itself) is not yet available online – we’ll provide an update when it does. One point to note is that the Bill was amended to change the word “knowingly” to “maliciously” and to reduce the jail time from 10 years to 6 years. Here’s the original version, with the amended parts underlined: The focus here is on the word change from “knowingly” to “maliciously” because it means – in very simple terms – that in order for the court to find you guilty, they first need to establish that you made or shared the post with bad (malicious) intentions, in contrast to the original version where the court needs to establish that you made or shared the post despite knowing that it was fake. In other words, the container for the post, be it a disclaimer of “Is this true or false” or “Here’s some fake news, guys!” may not even matter, as the authorities will be looking into why you posted it in the first place. To put it simply, just because you call a cat a cow doesn’t mean that the courts will rule that it is a cow. We spoke to lawyer Syahredzan Johan, who also shares the opinion that questioning whatever you’re sharing isn’t a magical get-out-of-trouble-free card. If anything, it’s something that may used by your lawyer after you’ve been arrested to show that you didn’t have any bad intentions when you made or shared the post: The problem is, even before you go to Court you might be arrested and remanded for investigations. Because the law is so wide, and there is no defence for 'asking' or 'seeking confirmation', I do not think that such additions will make a difference. However it may assist if it goes to court to establish that the post is not malicious. So its better to put the question mark [disclaimer] anyway. – Syahredzan Johan, in correspondence with ASKLEGAL While your lawyer could argue that a disclaimer indicates you had no malicious intentions when you spread the false news, there’s no real way of knowing how this would play out in real life yet, as the law has yet to be applied. However, what’s certain is that a disclaimer doesn’t automatically keep you out of trouble as the messages imply – you may still be facing the inconveniences of being arrested and detained for your post. [READ MORE: If you get arrested, does that mean you’re guilty?]"
"5 kesalahan cukai yang biasa berlaku di Malaysia, dan bagaimana mengelakkannya. [ Diterjemah dari Bahasa Inggeris. Click here for English version ] Menurut laporan berita daripada tahun 2017, banyak selebriti Malaysia tidak membayar cukai pendapatan mereka. Ya walaupun mereka memperoleh pendapatan berjuta-juta ringgit, tapi perkara ni masih terjadi, dan pihak berkuasa sedang menyiasat untuk mengambil tindakan selanjutnya. Sama ada anda seorang selebriti “paling meletop” ataupun rakyat marhaen biasa, perbuatan mengelak dari membayar cukai adalah masalah besar di banyak negara. Secara jujurnya, mengelak dari membayar cukai adalah perkara terakhir yang anda mahu buat sebab, jika anda tertangkap, denda yang dikenakan memang boleh buat anda pokai teruk! Butiran tentang undang-undang cukai ni boleh berubah dari tahun ke tahun, dan tiada sesiapa yang ingin pegawai cukai datang mengetuk pintu rumah menyatakan bahawa anda tidak melakukan apa yang sepatutnya. Anda boleh mengelakkan isu tersebut dengan hanya menghubungi cawangan Lembaga Hasil Dalaman Negeri (LHDN) terdekat untuk mendapat penjelasan untuk perkara yang anda tidak faham. Untuk membantu anda, berikut adalah 5 Kesalahan Cukai yang Biasa Berlaku Di Malaysia Dan Bagaimana Untuk Mengelakkannya. 1. Memberi nasihat cukai (yang kurang tepat) Kalau ada kawan atau ahli keluarga anda meminta nasihat tentang cukai dan anda kurang pasti tentang perkara itu, adalah lebih baik jika anda meminta mereka terus bertanyakan kepada LHDN ataupun seorang professional. Mengikut Seksyen 114(1A) Akta Cukai Pendapatan 1967 (Tiada terjemahan rasmi), adalah satu kesalahan bagi seseorang untuk menasihati orang lain mengenai cukai JIKA ia mengakibatkan cukai mereka “underdeclared” Jika disabitkan kesalahan, anda akan didenda RM200-RM20,000 atau hukuman penjara hingga 3 tahun, atau kedua-duanya sekali. Seksyen 114 (1A) Akta Cukai Pendapatan 1967 (sebahagian; tiada terjemahan rasmi) Mana-mana pihak yang menolong, menasihati apa apa yang berkenaan berkaitan penyediaan penyata, dimana hasil cukai penyata kurang, melainkan jika dia dapat menyakinkan mahkamah bahawa bantuan atau nasihat itu diberikan dengan berhati-hati, akan didapati bersalah... Undang-undang ini sebenarnya lebih tertakluk kepada profesional yang berurusan dengan cukai seperti akauntan dan peguam cukai, tetapi jika anda memberitahu rakan anda untuk mengecualikan pendapatan hasil kerja “freelance” mereka daripada pulangan cukai, maka anda boleh didakwa di bawah undang-undang ini. 2. Tidak menghantar borang pulangan cukai Anda mungkin sudah tahu bahawa anda perlu menghantar borang pulangan cukai kepada LHDN pada 30 April setiap tahun (30 Jun bagi mereka yang menjalankan perniagaan). Ini sudah ditulis dalam Seksyen 77 (1) Akta Cukai Pendapatan 1967. Tetapi jika anda tidak mempunyai pendapatan yang cukup untuk dikenakan cukai, adakah anda masih perlu hantar penyata cukai anda? Untuk menjawab kebimbangan anda ni, jawapannya adalah anda hanya perlu memfailkan penyata jika anda mempunyai pendapatan yang boleh dikenakan cukai. Jadi, ya, jika anda tidak pernah memfailkan pulangan cukai sebelum ini, dan pendapatan anda tidak cukup untuk dikenakan cukai, anda tidak perlu mengemukakan pun pulangan cukai anda. Sekiranya anda memang pernah memfailkan pulangan cukai, maka anda harus terus melakukannya walaupun anda tidak membayar sebarang cukai, atau jika anda mengambil potongan gaji dan tidak mendapat cukup untuk membayar cukai. Ini untuk mengelakkan anda diletak dalam profil risiko tinggi untuk kes pengelakan pembayaran cukai, yang mungkin menjadikan anda calon untuk pengaudit cukai untuk mengesahkan pulangan cukai anda. Menurut LHDN, anda boleh diaudit sehingga 5 tahun taksiran, dan tiada had masa untuk pengauditan jika terdapat sebarang penipuan atau cubaan pengelakan cukai, Jadi anda perlu memastikan akaun cukai anda teratur. ​LHDN mempunyai senarai pelepasan cukai yang anda boleh gunakan untuk mengira pendapatan bercukai anda. Ada juga panduan seperti ini dari RinggitPlus yang boleh membimbing anda dalam pengiraan cukai. Terdapat beberapa jenis pelepasan cukai yang mungkin anda layak, jadi pendapatan bercukai anda mungkin jauh lebih rendah dari yang anda fikirkan. 3. Menipu tentang pendapatan anda Ini adalah kesalahan cukai yang sangat jelas - Anda mengelakkan cukai dengan merendahkan jumlah pendapatan yang anda perolehi. Seksyen 113 (1) Akta Cukai Pendapatan (Tiada terjemahan rasmi) menyatakan bahawa: “(1) Mana-mana orang yang- (a) membuat suatu penyata yang tidak betul dengan meninggalkan atau mengasingkan apa-apa pendapatan yang dikehendaki oleh Akta ini untuk membuat pulangan bagi pihak dirinya atau orang lain; atau (b) memberikan apa-apa maklumat yang salah berhubung dengan apa-apa perkara yang menyentuh kebebasannya sendiri untuk cukai atau kebebasan untuk dikenakan cukai mana-mana orang lain ... "" Melainkan ianya kesilapan jujur, memberi maklumat yang salah tentang pendapatan anda boleh didenda sebanyak RM1,000 hingga RM10,000 termasuk tambahan 200% keatas cukai yang dikenakan. Anda juga boleh diminta untuk membayar jumlah yang tidak dibayar jika tiada prosiding jenayah dikenakan terhadap anda, tetapi kenapa nak cari pasal kan? Terdapat salah faham umum bahawa “freelancers” sepenuh masa tak perlu membayar cukai atau mengisytiharkan pendapatan mereka. Tetapi sebenarnya, mereka masih kena bayar tau. Mereka secara teknikal bekerja sendiri dan masih membayar cukai di bawah undang-undang kita sama ada atau tidak mereka telah menubuhkan perniagaan untuk diri mereka sendiri. “Freelancers” mungkin tertakluk kepada undang-undang percukaian yang berbeza seperti kadar yang lebih rendah untuk mana-mana royalti yang mereka peroleh, dan apa-apa pendapatan yang mereka terima bekerja di luar negeri adalah 100% dikecualikan daripada cukai pendapatan Malaysia (kami akan rungkaikan lebih banyak pengecualian dalam artikel seterusnya). Untuk mendapatkan maklumat lanjut mengenai bagaimana “freelancers” harus memfailkan cukai mereka, Semak artikel RinggitPlus ini atau hubungi cawangan LHDN terdekat untuk dapatkan maklumat lanjut okay? 4. Tidak membayar cukai Satu kesalahan cukai yang CUKUP JELAS tetapi memang kami nak sebut jugak kerana anda boleh dihalang daripada meninggalkan negara! Di bawah Seksyen 114 Akta Cukai Pendapatan 1967, mengelakkan cukai di bawah mana-mana kaedah tersenarai adalah kesalahan yang boleh dihukum dengan denda sebanyak RM1,000 hingga RM20,000 di atas tambahan 300% kepada cukai yang anda cuba elakkan daripada membayar. ​Bagi menghentikan niat anda nak ke luar Malaysia, di bawah Seksyen 104, Ketua Pengarah LHDN juga boleh mengeluarkan sijil kepada mana-mana Pesuruhjaya Polis atau Pengarah Imigresen dengan butir-butir anda dan butir-butir apa-apa cukai yang ANDA PERLU bayar – Ini menyebabkan anda boleh dihalang daripada meninggalkan Malaysia sehingga semua hutang cukai anda telah diselesaikan. Jika sijil ini dikeluarkan, adalah menjadi satu jenayah untuk anda cuba meninggalkan Malaysia tanpa membayar cukai di bawah Seksyen 115, yang membawa hukuman denda sebanyak RM200 hingga RM20,000, dan / atau sehingga 6 bulan penjara. Selain daripada kes pengelakkan cukai yang melampau di atas, anda perlu pastikan yang anda membayar cukai tepat pada masanya untuk mengelakkan caj penalti (30hb April untuk pendapatan bukan perniagaan dan 30hb Jun untuk pendapatan perniagaan). Seksyen 103 (1) menyatakan bahawa apa-apa cukai yang kena dibayar hendaklah dibayar tepat pada masanya sama ada anda merayu terhadap pengiraan cukai (jika ada pertikaian) atau tidak. Tambahan tu, Seksyen 103 (3) menyatakan bahawa jumlah belum dibayar pada tarikh tamat akan dikenakan tambahan 10%. Selain itu, sekiranya cukai dan bayaran tambahan masih tidak diselesaikan dalam masa 60 hari, anda akan mendapat 5% lagi tambahan mengikut Seksyen 103 (4). Tetapi katakan anda menghadapi masalah membayar cukai itu pada masa yang tepat, anda sebenarnya boleh meminta untuk membayar cukai anda dengan ansuran yang dibenarkan di bawah Seksyen 107B. Hubungi cawangan LHDN di mana fail fizikal anda disimpan untuk memfailkan rayuan. Anda harus melakukan ini secepat mungkin sebab penalti pembayaran lewat masih akan dikenakan sekiranya tidak membuat pembayaran yang diperlukan pada waktu. 5. Tidak menyimpan dokumen yang relevan untuk cukai pendapatan Undang-undang sebenarnya meletakkan kewajipan bagi kita untuk menyimpan dokumen yang boleh memberi kesan terhadap pendapatan bercukai kita. Mengikut Seksyen 82A (1) & (2) Akta Cukai Pendapatan, kita perlu menyimpan dokumen tersebut sekurang-kurangnya 7 tahun sama ada kita membayar cukai ataupun tidak - sekurang-kurangnya, anda menyimpan bukti bahawa pendapatan bercukai anda tidak cukup tinggi untuk dikenakan cukai. Dokumen-dokumen ini boleh dipanggil sebagai penyata pendapatan dan perbelanjaan anda, serta apa-apa invois, baucar, resit, dan apa-apa dokumen lain yang boleh mengesahkan butiran mengenai pulangan cukai anda. Mengikut Seksyen 82A (4), anda perlu menyimpan apa-apa rekod elektronik dalam format yang mudah diakses dan boleh ditukar kepada penulisan (pada dasarnya jika anda boleh mencetaknya – itu yang terbaik); dan anda juga harus menyimpan salinan dokumen manual mana-mana dokumen yang anda simpan secara elektronik (anda mungkin mahu membuat fotokopi mereka juga sejak dakwat memudar dari masa ke masa). Kegagalan menyimpan rekod kertas 7 tahun ini akan dianggap sebagai kesalahan jenayah di bawah Seksyen 119A, yang boleh menyebabkan denda RM300-RM10,000 dan / atau sehingga 1 tahun penjara. Anda mungkin mahu menyimpan dokumen selama yang mungkin. Hal ini kerana di bawah Seksyen 122, kesalahan cukai tertentu boleh dijalankan selama 12 tahun, dan untuk beberapa kesalahan lain mungkin tidak ada batasan waktu untuk pegawai cukai datang mencari anda. Jika senario itu berlaku, sekurang-kurangnya anda akan mempunyai cara untuk menunjukkan anda melakukan kesilapan yang jujur. Terdapat banyak pelepasan cukai bagi warganegara Malaysia yang boleh membantu mengurangkan jumlah cukai yang perlu dibayar. Failkan untuk kategori yang anda layak untuk tahun itu, dan simpan resit sebagai bukti. Tiada yang pasti di dunia ini melainkan pembayaran cukai.. Negara mana yang anda tinggal pun, cukai akan dikenakan untuk membantu pendapatan kerajaan. Cukai pendapatan di Malaysia sebenarnya berstrukturkan sistem progresif. Ini bermakna, pendapatan yang melebihi angka tertentu dikenakan cukai pada kadar yang lebih tinggi. Ini menjadikannya jauh lebih fleksibel daripada kadar kurungan yang rata. Untuk gambaran yang lebih jelas, rakyat Malaysia membayar cukai 0% pada RM5,000 pertama yang mereka perolehi untuk tahun ini (BUKAN SEBULAN), 1% pada RM15,000 yang akan mereka perolehi, dan 5% pada RM15,000 seterusnya, dan sebagainya. Sekali lagi kami nak ingatkan, jika anda mempunyai soalan membakar mengenai cukai di Malaysia, hubungi LHDN terus dan mereka akan sedia membantu anda."
"If guilty, you don't have to serve your full sentence in Malaysia because.... Discounts If you’re a fan of criminal/thriller movies, you probably would have seen this practice somewhere. Maybe you saw it when Jack Bauer gave a terrorist immunity for telling him where the bomb is in order for him to save an entire building filled with people. Perhaps you saw it in a scene where a policeman goes, “Tell me where you hid the other bodies and we will give you less years in prison.” Anything more or less along those lines which allows someone who is being charged in court to bargain for a lighter sentence in return of pleading guilty/having lesser offences charged against him/providing information is known as plea bargaining. This is the more formal way but there are also other ways of getting a lighter sentence. To kick it off, let’s look at plea bargaining before moving on to the other ways of getting a lighter sentence. While plea bargaining is an accepted practice for many reasons (such as efficiency), the first rule of law is to that… All crimes are punished according to law Under section 173(m)(ii) of the Criminal Procedure Code (“CPC”), if the court decides that the accused has been found guilty beyond reasonable doubt, then he must proceed to sentence the accused according to law. The case of Jafa bin Daud tells us that the phrase, “sentence according to law” means that the sentence has to be according to the Penal Code provisions or other accepted judicial provisions that set out the kind of punishment (such as number of years, number of whips, fines, etc) that is usually given to people who commit the same crime in similar situations/fact patterns. There are several general rules when it comes to how punishments are meted out including how the judge will take into account any mitigating or aggravating factors such as a guilty plea or the level of violence but we will cover that in a separate article. Now that you guys understand that the cornerstone rule is to always punish according to law, let’s turn our heads to the realm of plea bargaining. It started with a whisperrr… No, actually, it starts with something known as a pre-trial conference. Under section 172A of the CPC, an accused that has been charged and pleads not guilty (also known as claims trial), will have to participate in a pre-trial conference with the prosecution in order to discuss the factual and legal issues of the case, the points of contention, and so on. The discussion for a plea bargaining will also happen at this stage. If an agreement for plea bargaining has been agreed upon, the terms of it will be written down and the accused has to sign it. The pre-trial conference must happen within 30 days of the accused being charged in court and after this, the case management happens. The case management under section 172B happens with the judge and it is where the judge considers all the matters that have been agreed upon between the accused and the prosecution in the pre-trial conference. More importantly, the judge has to determine whether the plea bargaining was done voluntarily by the accused. This means that the judge has to decide whether or not the accused himself wanted the plea bargaining on such terms. Under section 172D, if there is a successful plea bargain, the accused can get up to a 50% discount on his prison sentence. “...sentence the accused to not more than half of the maximum punishment of imprisonment provided under the law for the offence for which the accused has been convicted.” Aside from the plea bargaining that happens during the pre-trial conference, there are two other ways where an accused can get a lighter sentence. The first way can only happen if the accused already has outstanding offences which he has admitted guilt to. Under section 171A which reads, “Where in any criminal proceedings...the accused is found guilty of an offence, the Court, in determining and in passing sentence, may, with the consent of the prosecutor and the accused, take into consideration any other outstanding offence or offences which the accused admits to have committed...” This means that if both the prosecution and the accused agrees, the court can consider all the offences that the accused is guilty of and mete out on sentence. After this sentence is passed out, the accused can no longer be charged or tried for the other offences unless his appeal against this sentence is successful. We know that sounded confusing so let’s use an example for you guys: Ali is found guilty of theft in Kuala Lumpur. While the judge is deciding on the sentence, he finds out that Ali is currently being charged for theft in Penang. With the consent of Ali, the prosecution, and the Penang judge, the Kuala Lumpur judge can take into account the charge in Penang and sentence Ali accordingly. Ali then decides to appeal against the sentence and succeeds. Since Ali succeeded in appealing against his conviction in KL, he can now be charged and tried for the earlier charge in Penang. Aside from this, section 171 contains another way to get a lighter sentence. In section 171, if the accused is charged with several offences and the accused has been successfully convicted for some of them, the prosecution can apply for the consent of court to withdraw the other unconvicted offences. If the court agrees to withdraw the remaining charges, this withdrawal amounts to an acquittal and the accused cannot be charged or tried for those offences unless his conviction is set aside. In practice, section 171 happens when the prosecution has difficulty proving all the charges (due to the lack of evidence) and negotiates with the accused. Therefore, in return for the accused pleading guilty to several offences, the prosecution will drop the rest. In essence, how section 171 works is very similar to section 171A with the only difference being, section 171 deals with multiple charges while section 171A deals with outstanding offences. If you are a little confused as to how it works, it basically flows this way: Pre-trial conference between the accused and prosecutor where plea bargaining is discussed Case management with the judge where the judge determines if the accused made the bargain voluntarily Consider if there are other charges/outstanding offences Sentence according to law So...what’s the point of plea bargaining? If some of you think that people who have committed crimes shouldn’t be allowed to negotiate the kind of punishments that they will receive, you are technically not wrong...from a moral standpoint. If this was a perfect world where evidence for crimes can be easily obtained and where time and cost is not an issue, then plea bargaining wouldn’t exist. However, as it is, plea bargaining is needed at times when there is insufficient evidence or where the courts are strapped for time and it would be too costly to pursue a conviction for all the offences. Aside from that, plea bargaining also allows the government to secure more convictions and this in turn, serves the public interest. At the end of the day, plea bargaining is a mechanism that exists in all legal systems across the world and it is handy because at the end of the day, half a loaf is better than no loaf. Plus, the courts can consider aggravating factors such as the impact that it had on the victims to set a higher punishment."
"5 perkara yang anda tidak tahu boleh membawa anda masalah dalam pilihan raya Malaysia [Click here for English version] TU DIA, HARI PILIHANRAYA SUDAH TIBA! Anda bangun awal pagi dan kedengaran kicauan burung di luar dengan sinaran emas cahaya matahari. Setelah bersiap dilengkapi dengan senyuman terbangga anda ke tempat pengundian yang ditetapkan. Anda bakal menjalankan tanggungjawab anda demi menentukan masa hadapan negara dan itu adalah sesuatu yang harus dibanggakan. Sampai di tempat pengundian, dan – yahoo! – barisan tidak panjang. Dan ada pula seorang yang baik hati menawarkan cupcake dengan terpampangnya muka ahli politik kesayangan anda di situ. Dengan senang hati anda menerimanya dan sebelum dapat memasukkan undi ke dalam kotak, anda diberhentikan oleh pegawai dan menyatakan bahawa anda baru sahaja melanggar undang-undang dan tidak dibenarkan untuk mengundi. Tersebut merupakan salah satu daripada 5 perkara yang tampak biasa tapi yang boleh melanggar undang-undang. Ambil perhatian kerana setiap satunya mempunyai hukuman denda masing-masing. 1. Menerima makanan dan minuman daripada orang asing Hukuman: Penjara 2 tahun maksimum, denda antara RM1,000 dan RM5,000; dan tidak dibenarkan mengundi selama 5 tahun akan datang. Sekiranya anda ditawarkan makanan, minuman dan sebagainya sebelum, semasa atau selepas proses pengundian, kami menasihatkan bahawa tidak sesekali menerima tawaran-tawaran tersebut kerana tindakan tersebut menunjukkan penghargaan anda telah mengundi Bersikap tegaslah lebih-lebih lagi jika si pemberi itu mempunyai hasrat supaya anda cenderung mengundi seseorang yang dikehendakinya. Kenapa? Ini kerana menerima apa-apa tawaran yang kemungkinan boleh menjadi rasuah adalah suatu kesalahan Menjamu (Treating) yang dinyatakan dalam Akta Kesalahan Pilihanraya 1954: Seksyen 8 Akta Kesalahan Pilihanraya 1954 – Menjamu: “...dan tiap-tiap pemilih atau pengundi yang, secara rasuah menerima atau mengambil apa-apa makanan, minuman, atau makanan atau minuman ringan atau bekalan itu atau mana-mana wang atau tiket itu atau yang menggunakan apa-apa cara atau tipu daya lain itu untuk membolehkan makanan, minuman, makanan atau minuman ringan atau bekalan itu didapatkan bersalah atas kesalahan menjamu.” Kata kuncinya adalah ‘secara rasuah’, di mana adanya motif dan niat lain atas makanan atau minuman yang ditawarkan kepada anda. Dengan kata lain ada udang di sebalik batu. Walaupun kita tidak tahu niat seseorang itu, tetapi adalah lebih baik kita menolak tawaran-tawaran itu pada hari pilihanraya. Ini termasuk juga dengan wang atau token yang sekadarnya. 2. Membawa keluar atau membawa masuk kertas undi ke tempat pengundian Hukuman: Penjara hingga 2 tahun atau denda tidak melebihi RM5,000, atau kedua-duanya, dan digantung pengundian selama 5 tahun akan datang Anda dilarang membawa keluar kertas undi semasa meninggalkan tempat pengundian dalam apa jua keadaan sama ada kertas undi tersebut telah digunakan atau belum digunakan. Sekiranya anda mempunyai dua kertas undi secara tidak sengaja, hendaklah serahkan salah satunya kepada Pegawai di situ dengan segara. Jangan sesekali membawa keluar kertas undi tersebut. Anda boleh dikenakan hukuman kerana tindakan membawa keluar kertas undi dari tempat mengundi merupakan suatu kesalahan. Menurut Akta Kesalahan Pilihanraya 1954: Seksyen 3(1) Akta Kesalahan Pilihanraya 1954 – Kesalahan-kesalahan oleh seseorang: Mana-mana orang yang – (h) tanpa kuasa yang sewajarnya membawa keluar dari tempat mengundi mana-man kertas undi atau didapati memiliki mana-mana kertas undi di luar sesuatu tempat mengundi; Berikutan itu, mencetak mana-mana kertas undi atau dokumen yang boleh digunakan sebagai kertas undi semasa PRU, dan membawanya masuk ke tempat mengundi juga merupakan kesalahan dan boleh dikenakan hukuman seperti yang dinyatakan dalam Seksyen 3(1): (c) memalsukan atau melancung atau secara fraud mencacatkan atau secara fraud memusnahkan mana-mana kertas undi atau tanda rasmi pada mana-mana kertas undi; Jadi, periksalah terlebih dahulu jika terdapat lebihan kertas undi atau kertas undi palsu pada diri anda sebelum meninggalkan tempat mengundi. 3. Menunggu atau berlegar-legar di kawasan tempat mengundi setelah mengundi Hukuman: Penjara sehingga 1 tahun atau denda sehingga RM5,000 atau kedua-duanya. Habis sahaja mengundi, tinggalkanlah tempat mengundi secara berhemah – sebagai contoh, jika anda menunggu seseorang, tunggulah sejauh 50 meter dari tempat mengundi itu serta jangan lupa tidak mengambil keluar kertas undi seperti yang disebutkan di atas. Berlegar-legar atau menunggu dalam lingkungan 50 meter dari tempat mengundi adalah menjadi suatu kesalahan di bawah Akta Kesalahan Pilihanraya 1954: Seksyen 26(1) Akta Kesalahan Pilihanraya 1954 – Batasan pada hari mengundi: Tiada seorang pun boleh pada hari mengundi – (e) dalam jarak lima puluh meter dari sempadan mana-mana tempat mengundi – (iv) menunggu atau berdiri-diri kecuali bagi maksud membolehkannya masuk ke tempat mengundi untuk membuang undinya... Amatlah digalakkan membawa ahli keluarga atau rakan-rakan datang mengundi seiring dengan menjalankan tanggungjawab sebagai pengundi tetapi setelah mengundi, tunggulah mereka dengan jarak 50 meter dari tempat mengundi. Berlegar-legar dalam kawasan pengundian bukanlah idea yang baik. 4. Memakai apa-apa pakaian yang mempunyai logo parti Hukuman: Penjara hingga 1 tahun atau denda sehingga RM5,000 atau kedua-duanya. Undang-undang ini pasti asing bagi kebanyakan orang tetapi yang inilah yang membawa kepada hukuman yang paling berat jika didapati bersalah – oleh sebab itu ambil perhatian! Sesiapa yang berada di tempat pengundian pada hari PRU – atau dalam lingkungan 50 meter dari tempat pengundian – janganlah memakai atau membawa apa-apa yang mempunyai nama calon, lambang atau simbol mana-mana parti politik. Ini termasuklah hampir semua kategori pakaian dan aksesori seperti yang disebutkan dalam Akta Kesalahan Pilihanraya 1954: Seksyen 26(1) Akta Kesalahan Pilihanraya 1954 – Batasan pada hari mengundi: Tiada seorang pun boleh pada hari mengundi – (g) dalam jarak lima puluh meter dari sempadan mana-mana tempat mengundi dan dalam tempat mengundi, memakai, memegang atau membawa apa-apa bentuk atau jenis pakaian, tutup kepala, barang hiasan, roset, botol air atau payung yang padanya tercetak atau tertera nama calon atau nama, lambang atau simbol mana-mana parti politik. Pakaian yang neutral atau ‘plain’ adalah yang paling sesuai dipakai ketika berada di tempat pengundian supaya tidak mengundang masalah atau syak wasangka. 5. Tidak memperuntukkan waktu yang cukup kepada pekerja untuk mengundi Hukuman: Penjara sehingga 1 tahun atau denda tidak melebihi RM5,000 Kepada majikan-majikan di Malaysia, adakah anda telah memperuntukkan waktu secukupnya untuk pekerja-pekerja anda keluar mengundi semasa PRU? Gagal untuk berbuat demikian dikatakan telah melanggar undang-undang. Secara spesifiknya dinyatakan dalam Akta Kesalahan Pilihanraya 1954: Seksyen 25(1) Akta Kesalahan Pilihanraya 1954 – Majikan-majikan hendaklah membenarkan tempoh yang munasabah bagi pekerja-pekerja mengundi: Tiap-tiap majikan hendaklah, pada hari mengundi, membenarkan suatu tempoh yang munasabah bagi tiap-tiap pemilih yang bekerja dengannya mengundi, dan tiada mejikan boleh membuat apa-apa potongan daripada gaji atau saraan lain mana-mana pemilih itu atau mengenakan ke atasnya atau menuntut daripadanya apa-apa penalti oleh sebab dia tidak hadir bekerja dalam tempoh itu. Ini sama seperti majikan menghalang pekerja-pekerjanya menjalankan tanggungjawab mereka sebagai pengundi jika tidak mengikuti arahan yang tertera di dalam akta di atas. Dengan kata lain, salah di sisi undang-undang. Seksyen 3(1) Akta Kesalahan Pilihanraya 1954 – Kesalahan-kesalahan oleh seseorang: Mana-mana orang yang – (n) menggalang atau menghalang seseorang pengundi yang selainnya berhak untuk mengundi daripada mengundi dalam sesuatu pilihanraya; Jika anda rasa itu salah, elakkan saja Ada lagi perkara-perkara lain yang sepatutunya anda elakkan seperti mengambil selfie atau mengadakan perbincangan hangat berkenaan hal politik semasa beratur untuk mengundi – semua ini anda boleh fikir sendiri – perkara-perkara yang boleh atau tidak boleh dilakukan ketika PRU. Kadang-kadang kita terlepas pandang hal-hal sedemikian kerana ada yang mengambil remeh kerana berpendapat bahawa perkara-perkara tersebut adalah kecil. Jadi, saling ingat-mengingatilah antara satu sama lain. Pasti kita tidak mahu ditimpa masalah yang tidak diingini semasa mengundi demi menentukan masa hapadan Malaysia, kan?"
"Did you know Malaysia has a special court for CHILDREN who commit crimes? On the 22nd of June, 2017, Prime Minister Najib Tun Razak launched the special court for sexual crimes against children. This special court was launched in order to create a friendlier environment for child victims and deal with child abuse cases more effectively. However, this special court for sexual crimes against children is not the first effort our criminal justice system has taken to cater to children; there is already a Court for Children since 2001, established by Child Act 2001 (previously known as the Juvenile Court under the Juvenile Courts Act 1947). But what’s a court for children, and how is different from regular “adult” courts? But first, what’s a “Child”? You might think of this as a stupid question, but it’s actually really important to have a legal definition of what a “child” is, in order to prevent confusion or misuse of the system. Here’s the line of logic – In order for Court for Children to come into play, the Child Act 2001 must first be applicable; and the Child Act 2001 applies only if the accused is a “child”. This is why section 2 of the Child Act 2001 specifically defines a person to be a “child” if: (a) the person is below 18 years old; and (b) the person is 10 years old and above. However, if your child is below 10 years old and he committed crime, he is not going to be tried in the Court for Children. In fact, he is not required to attend any court proceedings for whatever crime he did. This is because, section 82 of the Penal Code says: “Nothing is an offence which is done by a child under 10 years of age.” Now that we have the technical definitions out of the way, the main function of the Court for Children is also spelled out in the Act itself, in section 11(1): “(a) hearing, determining, or disposing of any charge against a child;” So if your child is charged with a criminal offence, the Court for Children has the criminal jurisdiction in ruling whether your child is guilty or otherwise. In that case, what distinguishes a usual criminal court from the Court for Children? Difference Between the Court for Children and the Criminal Court Usually, in a criminal court, we have one judge sitting on the bench. In the Court for Children, we have two advisers assisting the judge. The advisers’ function to inform and advise the judge on consideration affecting the orders the judge will have to make if the child is found guilty. The advisers would also advise the parents or guardian of the child. Aside from that, the Court for Children also ensures: The privacy of the child is protected Section 12(1) of the Child Act 2001 says that the Court for Children shall only operate at the following places and times: ""(a) either in a different building or room from that of other courts; or (b) on different days from those on which sittings of those other Courts are held."" If the Court for Children is in the same building as other Courts, then the child is to be brought in and out of the Court from a different entrance and exit. Section 12(3) also provides that court proceedings in the Court for Children are closed proceedings. This means that the people allowed to be present are mainly court officers, the accused child, the parents, lawyers and witnesses. Those who are not directly involved are prohibited from sitting in the courtroom. Section 15 of the Child Act 2001 also says that no mass media reports can be made regarding the case against the child. The restrictions would include name, address, school, picture or anything that would lead to the identification of the child. Attendance of parents is compulsory There may be a few reasons for this, either as a way for parents to be responsible for their child, or that the presence of the parents can be a comforting factor, section 88 of the Child Act 2001 requires parents to attend the court proceedings. Refusal to attend without good reason is an offence that is punishable with a fine up to RM5,000 and/or imprisonment for up to 2 years. On the other hand, in the case of Sia Yik Hung v Public Prosecutor [1998] 1 MLJ 450, the Court ruled that it is also mandatory for the parents or guardians to be notified that they must attend the proceedings. Failure to do so would amount to miscarriage of justice! The interest of the child is protected As we all know, maturity of children is lower than adults, they may not understand the charge against them. Section 90(1) says that it is the duty of the Court for Children to explain to the child the substance of the alleged offence. The Court must explain this in “simple language suitable to his age, maturity and understanding”. But in some cases, a child CAN be tried in the “normal” criminal courts All that being said, there are some circumstances in which a child would be tried in the regular courts. One example would be: if the child is charged with an offence punishable by death. It is expressly stated in section 11(5) of the Child Act 2001: “...the Court have jurisdiction to try all offences except offences punishable with death.” That is why, in the Nhaveen murder case where T. Nhaveen died after being allegedly assaulted in a park by 4 teenagers, the offenders were not brought to the Court for Children when the case was reclassified to murder under section 302 of the Penal Code. This is because, murder is an offence punishable by death sentence. Another exception is if the child has reached 18 years of age WHEN he is charged. Here, Court for Children does not apply even if the crime was committed when the child was below 18 years old. This is expressly stated in section section 83(3) of the Child Act 2001: “When an offence is committed by a child but a charge in respect of that offence is made against the child after he has attained the age of eighteen years, the charge shall be heard by a Court other than a Court For Children.” The rationale behind this law is explained in the case of PP v Mohd Turmizy Mahdzir [2007] 9 CLJ 187, and it was explained that: “It is important to stress that youth of a person cannot be used as a ""cloak of convenience"" in order to shelter him/her from accepting proper responsibility for criminal behavior.” Hence, the law isn’t meant to be used to allow criminal offenders to hide behind their age; instead, they must be held responsible for what they have done. To sum up, parents must keep an eye on their children, and request the authorities to comply with the rights and protections afforded to your children in the event that they committed an offence. The law does treat children with leniency with the aim to give our children another chance – to learn from their mistakes and, most importantly, to turn over a new leaf."
"If you get into an accident with an ambulance in Malaysia, are you automatically wrong? If you’ve been driving for awhile, you’d likely know the drill when you hear the distinctive wail of an ambulance siren – move aside, and let them pass. This usually happens without incident and you’d go back to crawling your way through the jam. However, as it turns out, accidents involving ambulances aren’t as rare as you’d think; with an average of 57 ambulance-related accidents happening in Malaysia each year based on a 2011 report. More recently, there was a much-publicized incident in 2017 where an ambulance ran a red light and crashed into 2 cars and 3 motorcyclists. [READ MORE: Are ambulances allowed to beat red lights in Malaysia?] This brings about a series of interesting questions, such as: Are you automatically at fault if there was an accident? Can you sue if you sustained injuries from the crash? Can you sue if you were the patient in the ambulance and sustained additional injuries? Can you not give way to an ambulance? Ambulances fall into the category of “Emergency Vehicles” which in turn falls under the larger category of “Government Vehicles”. This basically refers to any vehicle bought by a Malaysian ministry for official use and can include official Minister cars, police vehicles, and fire trucks. [READ MORE: If you get into an accident with a police car, are you automatically wrong?] However, what complicates things a little more when it comes to ambulances is that not all ambulances belong to the government. This is important for reasons which we’ll cover later on in the article. The good news is that, you’re not automatically at fault in the event of an accident with an ambulance, and you can claim for damages to your car. 1. Everything starts with a police report Let’s kickstart things off with the assumption that the accident is just a regular fender-bender where only the vehicles are damaged. So, just as in a “regular” accident with a private car owner, you’ll have to kickstart things with a police report. The usual steps of exchanging information with the driver of the other vehicle (which may include the driver’s badge/ID number in this case) and making the report within 24 hours of the accident would apply. It would also help if you have photos of the accident scene before anything gets moved or a dashcam recording. [READ MORE: If you hit a car from behind, are you automatically wrong?] If you were at fault, you’ll be liable to pay a RM300 fine for causing the accident and claims will be made against your insurance. However, it gets a little interesting if it was the ambulance at fault, because, as mentioned earlier, not all of them belong to the government. As a simple breakdown, an ambulance could belong to one of the following: Government hospitals State-run hospitals Private hospitals Private ambulance services Therefore, your claim could be against the government, the state, or a private insurance (most private entities would have insurance for their vehicles). This is under the assumption that the accident was a minor one, but what about more serious cases where you sustained injuries? If you decide to sue... 2. You’ll be suing the employer, not the ambulance driver Separate from claiming for damages to your car in the point above; you can file a civil suit (lawsuit) if you sustained injuries as a result of an accident with the ambulance – assuming that the ambulance driver was at fault. However, your lawsuit would be directed at the driver’s employer, not the driver himself. [READ MORE: What happens if you can no longer work after getting into an accident?] In law, there’s something called vicarious liability, which is the idea that employers are responsible for the actions of their employees. This means that your lawsuit could be directed at one of the following: Government hospitals (sue the government) State-run hospitals (sue the state) Private hospitals (sue the company) Private ambulance services (sue the individual owner or company) [READ MORE: If a worker hurts you by accident, do you sue him or his boss?] To illustrate, let’s say a government hospital ambulance crashed into you and – through no fault of your own – you end up with lifelong back pain. Ignoring the irony, you decide to sue for damages. However, you won’t be suing the ambulance driver. Instead, your lawsuit would be against the Government of Malaysia. This is covered in Section 5 of the Government Proceedings Act 1956 (emphasis added by us): Subject to this Act, the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent, and for the purposes of this section and without prejudice to the generality thereof, any public officer acting or purporting in good faith to be acting in pursuance of a duty imposed by law shall be deemed to be the agent of and to be acting under the instructions of the Government. What this basically means is that, because the driver who hit you was on duty at the time of the accident, your claims would be against his employer – the Malaysian Government. This would be different if the driver was off-duty at the time of the accident, in which you’ll be suing him as an individual. It’s best to consult with a lawyer about the viability of a lawsuit, as well as who the suit should be directed at. However, don’t go calling up law firms for that accident you had in 1986 just yet…. 3. There’s a time limit for you to sue For civil suits in Malaysia, there’s something called a “limitation period” which limits how long you have to sue someone. While there are exceptions, the period is typically 6 years from when the incident occurred. What this means is that, if you were to sue someone 7 years after they crashed into your car, there’s a pretty high chance the judge won’t entertain your claims. [READ MORE: Is there a time limit for you to sue someone in Malaysia?] But when it comes to government authorities, they’ve got PAPA as an advantage. PAPA in this case doesn’t refer to any sort of daddy, but the Public Authorities Protection Act 1948 which states that you have only a 3-year period to bring the government to court. Conversely, the government still has 6 years to take you to court. Section 2(a) of the Public Authorities Protection Act 1948 (in part): “...the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty-six months next after the act, neglect or default complained of or, in the case of a continuance of injury or damage, within thirty-six months next after the ceasing thereof;” In the case of privately-owned ambulances, the limitation period would be 6 years as usual. Again, consult a lawyer if you’re planning on taking legal action. 4. What if you were a patient in the ambulance? Well, in most cases you won’t comedically roll out of an ambulance during an accident, but there’s a chance you might sustain additional injuries as a result of it. The good news is that, even if the accident was the ambulance’s fault, you won’t be held responsible for any damages or be subject to a lawsuit since you couldn’t have contributed to the accident. In fact, if you sustained additional injuries (or comedically roll out of the ambulance) as a result of the accident, it’s possible for you to sue the party at fault. For this, we need to look into negligence – meaning that your lawsuit needs to be directed at whomever caused the accident. For example, if it was determined that the ambulance driver caused the accident, then your lawsuit would be against the ambulance driver’s employer thanks to the wonders of vicarious liability mentioned above. Again, please consult a lawyer if something like this actually happened to you. 5. Always give way to an ambulance! Other than being the most civic-conscious thing to do, there are some situations where you can get into hot soup if you obstruct an ambulance or any emergency vehicle (such as police cars or fire trucks). This can range from blocking an ambulance to misusing emergency lanes If you were to block an ambulance responding to an emergency (ie, when the siren and strobe lights are on), you may be looking at up to 6 months in jail and/or a fine up to RM2,000 under Section 53 of the Road Transport Act 1987. Not just that, you may also run the risk of having your driver’s license suspended or revoked under JPJ’s KEJARA Demerit Points System. Failure to “give priority to ambulance, firefighter, police, custom, or Road Transaction Department car (with siren)” will net you 8 demerit points. For reference, the system works on 20-point tiers, with a 6-8 month suspension upon accumulating 40 points. Click here for JPJ’s FAQ on the system, and here for a list of demerit point offences. Lastly, driving on the emergency lane is a big no-no under Rule 53(1) of the Road Traffic Rules 1959 (no online copy available), which is punishable under Section 119(2) of the Road Transport Act 1987 with a fine of up to RM2000, or up to 6 months in jail. [READ MORE: If you illegally drive on the emergency lane and get hit, who’s wrong?] Laws are good, but considerate drivers are better While it might be comforting to know that you won’t be left high and dry in the event of an accident with an ambulance, it’s also important to keep in mind that not only is the life of the patient at stake, but the ambulance staff as well. While there have been incidents of these vehicles misusing their sirens to escape traffic jams, the Road Transport Department has advised drivers to make way regardless, and lodge a complaint to the Health Ministry or the company or hospital that the ambulance belongs to."
"If you get into an accident with a police car in Malaysia, are you automatically wrong? If you’ve ever been in a fender-bender while driving before, you’d probably know the drill – assess the damage to the car, try to determine whose fault it was, exchange information, and either settle privately or make a police report to proceed with insurance claims. But what if you were sitting in your car one day, slowly wading through a traffic jam, and suddenly there’s a lurch forward just as you hear a sickening crunch of metal….. only to look into the rear view mirror to see a police car? Well, for one thing, settling privately – which, by the way, isn’t a legally recognized way to settle a car accident – is out of the question, so what should you do? Well…. Everything starts with a police report Let’s kickstart things off with the assumption that the accident is just a regular fender-bender where only the vehicles are damaged. So, just as in a “regular” accident with a private car owner, you’ll have to kickstart things with a police report. The usual steps of exchanging information with the driver of the other vehicle (which may include the driver’s badge/ID number in this case) and making the report within 24 hours of the accident would apply. It would also help if you have photos of the accident scene before anything gets moved or a dashcam recording. [READ MORE: If you hit a car from behind, are you automatically wrong?] If you were at fault, you’ll be liable to pay a RM300 fine for causing the accident and claims will be made against your insurance. However, if it’s the other party at fault, this is where things get interesting. For police cars, Home Minister Datuk Seri Zahid Hamidi revealed in late 2017 that all vehicles owned by the police force are NOT protected by insurance. Instead, what you have to do would be to make the police report within 24 hours, and make a claim to the government for compensation. ""The police will not pay any compensation or vehicle repair cost to a third party if they are involved in a road accident. … Nevertheless the claims can be made to the government for the relevant costs or compensation. ... Every accident involving a government vehicle will be referred to a legal adviser to study the possibility of the government paying for the loss incurred by the accident.” – Datuk Seri Zahid Hamidi, as quoted by The Sun Daily. This is under the assumption that the accident was a minor one, but what about more serious cases where you sustained injuries? You’ll be suing the government, not the driver! Police cars fall under the category of “Government Vehicles” which, very simply put, refers to any vehicle bought by a Malaysian ministry for official use. These include official Minister or Royalty cars, other police patrol vehicles such as bikes and mobile police stations, fire trucks, and ambulances. However, it’s worth noting that not all ambulances belong to the government: [READ MORE: 5 things you need to know if you get into an accident with an ambulance] So let’s say a police car crashed into you and – through no fault of your own – you end up with lifelong back pain, so you decide to sue for damages. However, you won’t be suing the driver of the police car. Instead, your lawsuit would be against the Government of Malaysia. This is covered in Section 5 of the Government Proceedings Act 1956 (emphasis added by us): Subject to this Act, the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent, and for the purposes of this section and without prejudice to the generality thereof, any public officer acting or purporting in good faith to be acting in pursuance of a duty imposed by law shall be deemed to be the agent of and to be acting under the instructions of the Government. What this basically means is that, because the officer who hit you was on duty at the time of the accident, your claims would be against his employer – the Malaysian Government. This would be different if the officer was off-duty at the time of the accident, in which you’ll be suing him as an individual. The falls under the principles of vicarious liability, which is the idea that employers are responsible for the actions of their employees. You can also read more on the topic here: [READ MORE: If a worker hurts you by accident, do you sue him or his boss?] For clarification, a policeman is considered to always be on duty when required to act as such; so by extension it would mean that, in a patrol car, they would be considered to be on duty even if the sirens aren’t on. Section 19 of the Police Act 1967 – ‘Police officer to be deemed on duty’: Every police officer, extra police officer and watch constable shall, for the purposes of this Act, be deemed to be always on duty when required to act as such and shall perform the duties and exercise the powers granted to him under this Act or any other law at any place in Malaysia where he may be doing duty. We’ll give our usual disclaimer to consult a lawyer if you’re actually planning to sue, but before you start looking for one for that accident you had with a police car in 1986… There is a time limit for you to sue the government (and vice-versa) For civil suits in Malaysia, there’s something called a “limitation period” which limits how long you have to sue someone. While there are exceptions, the period is typically 6 years from when the incident occurred. What this means is that, if you were to sue someone 7 years after they crashed into your car, there’s a pretty high chance the judge won’t entertain your claims. [READ MORE: Is there a time limit for you to sue someone in Malaysia?] But when it comes to government authorities, they’ve got PAPA as an advantage. PAPA in this case doesn’t refer to any sort of #daddy, but the Public Authorities Protection Act 1948 which states that you have only a 3-year period to bring the government to court. Section 2(a) of the Public Authorities Protection Act 1948 (in part): “...the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty-six months next after the act, neglect or default complained of or, in the case of a continuance of injury or damage, within thirty-six months next after the ceasing thereof;” However, this doesn’t work the other way around, so the government still has 6 years to take you to court. You CAN get in trouble for blocking police cars on duty Under normal circumstances, it would be pretty clear-cut that a car that hits you while speeding would be in the wrong. However, this may not be the case when it comes to police cars. Failing to give way – or worse, causing an accident – to a police vehicle responding to a call (in this context meaning that the sirens and strobe lights are on) may land you with a prison sentence of up to two years and/or a fine up to RM10,000 under Section 186 of the Penal Code: “Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment for a term which may extend to *two years or with fine which may extend to * ten thousand ringgit or with both.” Not just that, you may also run the risk of having your driver’s license suspended or revoked under JPJ’s KEJARA Demerit Points System. Failure to “give priority to ambulance, firefighter, police, custom, or Road Transaction Department car (with siren)” will net you 8 demerit points. For reference, the system works on 20-point tiers, with a 6-8 month suspension upon accumulating 40 points. Click here for JPJ’s FAQ on the system, and here for a list of demerit point offences. While accidents sometimes cannot be avoided, especially in the event of a police chase; it’s always a good idea to be aware of your surroundings while driving and to make way when necessary – not just for police vehicles but emergency vehicles like fire trucks and ambulances as well. And to keep off the emergency lane unless there’s an actual emergency. [READ MORE: If you illegally drive on the emergency lane and get hit, who’s wrong?]"
"4 ways a witness in Malaysian court can remain silent (without getting in trouble) Imagine you’re at home one day and you get a call saying that your husband (or wife) has been arrested and will be charged in court. Worse, when the trial date comes along, you get asked to testify against your husband in the witness stand. You’re conflicted. What if your answers get your husband in trouble? Can you choose to not testify? To answer the question above, we have to look at the Evidence Act 1950 to determine which instances you have the right to remain silent in court. However, the general rule is that... Anyone who qualifies as a witness must answer all questions presented to them. So first of all almost everyone qualifies to be a witness, with some exceptions as mentioned in Section 118 of the Evidence Act 1950: “All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind” Simply put, you’ll qualify as a witness if you understand the questions the lawyers or judges are going to ask you, and you are able to answer them properly. However, you would not qualify if you cannot give a rational answer to the questions presented to you. For example, someone with some form of mental illness or disability which prevents him from communicating with the court rationally may not qualify as a witness. The general rule in law is, if you are competent to be a witness, then you may be forced to testify in court. If you refuse to go or answer questions, you could be found in contempt of court and be jailed or fined. This is when the court finds that your refusal is actually interfering with the administration of justice or, in simple terms, when you’re making life hard for everyone. [READ MORE: Is it scary being a witness in Malaysian court?] There are however, a few instances where a witness can choose to remain silent and not get in trouble for it. 1. You cannot be forced to testify if YOU are the one on trial Simply put, if you’re the one accused of a crime and put on trial, the prosecution or defence cannot call you up to the witness stand unless you yourself agree to become a witness. Section 120(3) of the Evidence Act 1950: “In criminal proceedings the accused shall be a competent witness in his own behalf, and may give evidence in the same manner and with the like effect and consequences as any other witness:” However, you better weigh that option carefully with your defence lawyer because if you choose to testify in the witness stand for the defence, you’ll be questioned by the prosecution as well. This is known as examination and cross-examination. If the defence examines (questions) the accused, the prosecution will also get a shot at cross-examining the witness. Alternatively, if you have something to get off your chest but don’t want it to be used against you, there’s the option of giving a dock statement. Because this dock statement is not given under oath and not subject to questioning, it isn’t considered evidence. Therefore, this would carry little to no weight in the trial. 2. Spouses cannot be forced to testify on their marital communications Let’s say there is a murder trial. The prosecution would like to call the wife of the accused, because on the night of the murder the accused stormed out of the house with a knife and told the wife “I am going to settle this once and for all”. Now this would obviously be some very beneficial evidence for the prosecution. Unfortunately for the prosecution, the wife would not be allowed to tell the court what her husband said. According to Section 122, the spouse cannot reveal communications she had with her spouse during their marriage, unless her spouse gives consent. Section 122 of the Evidence Act 1950: “No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication unless the person who made it or his representative in interest consents, except in suits between married persons or proceedings in which one married person is prosecuted for any crime committed against the other.” The exceptions to this rule would be when the case is between two spouses (ie the husband is suing the wife), or when one spouse is accused of an offence against the other spouse (ie the husband was charged with assaulting his wife). 3. You cannot be forced to testify if your answer would reveal state affairs Section 123 of the Evidence Act 1950 : “No one shall be permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived therefrom, except with the permission of the officer at the head of the department concerned, who shall give or withold permission as he thinks fit, subject, however, to the control of a Minister in the case of a department of the Government of Malaysia, and of the Chief Minister in the case of a department of a State Government” This provision would apply when the court asks a witness to produce unpublished records concerning state affairs. If such evidence were to be presented in court, approval would be needed by the relevant minister. So let’s say you are asked to produce a document in court, and that document is a PDRM document concerning a state matter. For that document to be produced in court, you would need the approval of Minister of Home Affairs. If you’re wondering what amounts to “state affairs”, the method of determination is laid out in the case of BA Rao v Sapuran Kaur. This case concerned the negligence of medical officers in a state health facility, and there was a request to produce a document concerning the findings of a Committee of Enquiry. There was an objection stating that the documents concern state affairs. The court decided, that it is for the court to decide whether the document concerned state affairs by examining all available evidence. 4. Lawyers cannot be forced to testify about what their clients told them You probably know this as lawyer-client privilege or attorney-client confidentiality. This provision exists so that clients can inform their lawyers all details to enable their lawyer to work properly. However, the client need not worry about his secrets being exposed in public thanks to Section 126 of the Evidence Act. But, for this provision to apply there must a lawyer-client relationship. So, if you have a friend who is a lawyer, and you casually tell him something, section 126 would not apply and the friend-lawyer can actually reveal what was said if he gets called to testify. Section 126 provides that lawyers cannot : “disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment” One exception to this rule would be when you inform your lawyer that you are going to commit a crime. He can reveal what you have said to the court, and he can also inform what was said by you to the PDRM to prevent a crime.Thus, if you already robbed a bank and you told your lawyer, he must keep that secret. If you told your lawyer you are going to rob a bank, you would be in trouble. The other exception would be when you give express consent to your lawyer that he may reveal what you told him. Although you can’t always remain silent, your rights as a witness are actually protected In the United States, you can be forced to attend as a witness court. However, if a witness refuses to answer questions he or she can plead the 5th. This basically protects the right of a witness against self-incrimination. As we can see, the United States legal system prioritizes individual rights first. Malaysia actually follows the British system which prioritizes the end goal of justice first, but that does not mean your rights are totally unavailable."
"If Malaysia has a disagreement with another country, how do they settle it? You could go to jail or get a fine if you hit someone, you could also be asked to pay damages if you break a legally binding promise. These are some of the consequences for individuals breaking local laws. So, what happens if, let’s say, the Malaysian government breaks a legally binding promise with another country, or uses military force against another country? Is the Malaysian government breaking any laws? In this case, the Malaysian government might be breaking international laws. Simply put, international law is the law that would govern the Malaysian government’s relationship with other countries. . These international laws govern how most disputes between countries (or rather, their governments) are heard and settled but, where do these laws come from, and who becomes the judge and jury? Treaties are the main source of international law In addition to being one of the primary sources of international law, a treaty operates similarly to a contract. To illustrate, person A has some land and needs money, person B has money and needs land. They could make a legally binding promise (a contract) that they would exchange the land for money. If let’s say person A or B suddenly refuses to make the exhange, it would be a wrong in law. Similarly, countries would make legally binding promises (treaties) with each other and, if those promises are broken, it would be a wrong under international law. Usually, if Malaysia were to enter into a treaty it would be to strengthen economic and diplomatic relationships with other countries or to improve certain conditions such as human rights. There are too many treaties for us to list down, so just to give you an example, we’ll look at a couple treaties that Malaysia is party to. For the purposes of strengthening Malaysia’s security, we are party to the Five Defence Powers Agreement with Singapore, Australia, New Zealand and United Kingdom. The treaty dictates that should Malaysia or Singapore become victim to an armed threat, these 5 powers are to consult each other immediately to decide what measures should be taken. With regards to how Malaysia handles diplomatic relations with other countries, we can look at the Vienna Convention on Diplomatic Relations. This treaty governs how diplomats are to be treated in their host countries. This treaty provides for the privileges and immunities of an embassy and its staff would enjoy. For example, Article 22 and Article 29 of the treaty provides that the premises of an embassy cannot be entered by the host country without permission from the ambassador, and that diplomatic stuff enjoy immunity from local laws. To put it into perspective, Malaysia cannot enter the premises of the Singapore Embassy, and they cannot arrest their diplomatic staff. The same rules would apply to how Singapore deals with the Malaysian embassy and its diplomatic staff. But what happens when international laws are broken? As mentioned earlier, if an international law is broken, more often than not it may lead to an international dispute. How would Malaysia or other countries handle an international dispute? There are, in general, 4 courses of action: INTERNATIONAL COURT OF JUSTICE The International Court Of Justice(ICJ) is an international body tasked to settle disputes between countries.They work similarly to local courts, in a sense where the judges listen to the legal points and evidence of both sides and they give a judgement. So if Malaysia had a dispute with another country, they can actually seek the ICJ’s help to settle their dispute. Some time back, Malaysia and Singapore had a dispute as to who had control over Pulau Batu Puteh or Pedra Branca. Malaysia and Singapore voluntarily agreed to seek the jurisdiction of the ICJ. The ICJ then decided Pedra Branca belonged to Singapore. DIPLOMATIC SANCTIONS This occurs when a country cuts diplomatic ties with another country. So if Malaysia was in a dispute with Australia, Malaysia could cancel any scheduled state visits with Australia, recall ambassadors stationed in Australia, or expel the ambassador of Australia stationed in Malaysia – for example. Usually, cutting diplomatic ties are intended to show disapproval of the actions of another country, and diplomatic relations will only be restored after the dispute has been settled. Remember, when Kim Jong Nam was allegedly assasinated in Malaysia? North Korea expressed dissatisfaction over the autopsy being conducted by Malaysia. This dispute resulted in Malaysia asking the North Korean ambassador to leave, with North Korea doing the same by asking the Malaysian ambassador to leave North Korea. UNITED NATIONS SECURITY COUNCIL The United Nations Security Council (UNSC) was established by a treaty called the UN Charter. The UNSC is an international body which consists of 5 permanent member states (United States of America, Russia, China, France, United Kingdom) and ten other non-permanent member states who obtain seats on a rotational basis. Malaysia was actually one of the non-permanent members to sit in the UNSC from 2015-2016. The UNSC is tasked with maintaining international peace and security. They do so by making decisions which are binding on all countries. So for example, if a country commits an act of war, the UNSC may make a decision to handle the matter. The UNSC actually uses either economic sanctions or military force to force a country to comply with international law. Economic sanctions would include certain trade restrictions and restrictions on financial transactions. This method is used to apply economic pressure on a country to make them comply with international law. Malaysia has actually recognized these economic sanctions and applied them. For example, North Korea and Iran were alleged to have been developing nuclear weapons. As, a result the UNSC imposed economic sanctions on both North Korea and Iran. To illustrate the binding the nature of these sanctions, Malaysia stated that certain types of trades and transactions with North Korea and Iran are prohibited. The UNSC would also use military action to force a country to comply with international law. This method is actually used when a very serious breach of international law has occurred, like an act of war, or invasion of another country. For example, during the 1998 military conflict in Kosovo, the UNSC decided on Security Council Resolution 1244 to insert a military force called KFOR to maintain peace in Kosovo. Malaysia, recognizing this resolution, contributed military personnel for this mission. NEGOTIATION This is probably the most preferred and peaceful method of handling international disputes. Malaysia has used this method numerous times. When MH17 was shot down, the recording device of the plane was in a conflict zone, and investigators were not able to enter the crash site. Malaysia negotiated with those who were in control of that area in order to retrieve the recording device. Malaysia prioritizes peace in our diplomatic policies Although Malaysia may not have an extremely powerful economy or military, we can pride ourselves for having a good diplomatic strategy. The Malaysian Ministry of Foreign Affairs states that Malaysia’s foreign policy is as such: “Malaysia continues to pursue an independent, principled and pragmatic foreign policy, founded on the values of peace, humanity, justice and equality. The overarching thrust of its foreign policy has been to safeguard Malaysia’s sovereignty and national interests as well as to contribute meaningfully towards a just and equitable community of nations through the conduct of effective diplomacy” Malaysian foreign policy clearly shows a devotion to make sure peace is maintained first when establishing diplomatic relations. In addition to that, Malaysia is known to have a neutral stance and refuses to interfere with the domestic affairs of other nations. This results in Malaysia having a good relationship with most nations although, if a dispute does happen, there are more than enough examples to show that Malaysia knows how to handle the situations firmly and peacefully. ."
"In Malaysia, you can pay bail to go home instead of going to jail. Here's how it works You may remember a 2017 incident in Johor Bahru where a woman rammed her car into a group of child cyclists, leading to death and injury. She was later charged for causing death by reckless driving. However, she is now...at home. Before you rage against the government for letting her go, they didn’t. She is waiting for her turn to face the judge but she gets to wait from home rather than in prison because of a tiny thing called bail. But before we go on further into the details, bail simply means that the court grants you (a person who is accused of a crime) a temporary release from police custody. Most of the time, this temporary release requires a form of security (usually money) to guarantee that you would return to court as ordered. Basically, the courts allow you to go home in return of you paying a sum of money to promise that you would not run away. If you’re here looking about information about getting your bail money back, that’s in another article: [READ MORE: Can you get your bail money back after paying it to the Malaysian courts?] So….. how would you know if you are getting bail? Whether you get bail depends on what you did Most of us would know that the majority of crimes in Malaysia is governed by the Penal Code. However, did you know that these offences are actually divided into three categories for the purposes of bail? The three categories of the bail would be dealt with separately below but in a nutshell, they are bailable offences, non-bailable offences and unbailable offences. Let’s take a look at each of these individually: (i) Bailable offences Bailable offences are basically when you get your bail as of right. This means that the court is not allowed to deny you bail. This is found under section 387 of the Criminal Procedure Code. The reason why you get bail as of right is because these offences are usually less serious and they carry a light sentence as well. An example of such an offence is trespassing (section 451 Penal Code), which is when you enter another person’s property without their permission. (ii) Non-bailable offences These offences are governed by section 388 of the Criminal Procedure Code and bail will be at the discretion of the court. Unlike bailable offences, bail is not guaranteed. The court can decide whether they would like to give you bail or not. An example of a non-bailable offence would be murder (section 302 Penal Code). This is where section 388 gets a little tricky. So, let’s dissect it for you. The first question to ask when the courts look at section 388 is – Is the offence committed punishable by death or life imprisonment? If the answer is yes and the court has reasonable ground to believe that you committed that offence, then no bail is allowed UNLESS you are: Under 16 years old A woman A sick/infirm person An example of how this operates is to look at the case of Dato’ Balwant Singh, an illustrious lawyer who was charged (and acquitted) for murder after opening fire on a despatch rider. At the time of the trial, Dato’ Balwant was 80 years old and was frail in health. The court allowed him bail despite him committing murder, an offence that was punishable by death. If the answer is no (the offence is not punishable by death/life imprisonment), then bail may be granted if it fulfils the guidelines found in the case of Public Prosecutor v Wee Swee Siang. We won’t delve into the guidelines but essentially the courts have to consider things like the seriousness of the offence and whether the accused would run away. A second case of Manickam & Ors v Public Prosecutor suggested another factor to consider – the presumption of innocence. The standard procedure for criminal trials is that you would be in prison until the trial is over. However, throwing you in jail while you wait for the courts to find you innocent or guilty can be considered a form of punishment. Since you are presumed innocent until found guilty by the courts, granting bail effectively prevents you from getting undue punishment. (iii) Unbailable offences These would be offences where bail cannot be granted at all – The court has no discretion in deciding. These usually concern extremely serious offences threatening Malaysia’s safety, such as terrorism. Now that you know when you would be given bail, the next point is… How much do I have to pay for bail? You have seen how in shows, bail amounts can range from a few thousand up to a staggering million (or more). So, if you are ever caught in a situation where you require bail, how would you know how much you would be slapped with? Well, the first thing that needs to be understood is that the bail amount should not be set with the intention to punish. Section 389 of the Criminal Procedure Code states that when determining the amount of bail, the court has to consider two things – The circumstances of the case To make sure that you actually attend court and not run away. The judge in the earlier mentioned case of Manickam & Ors v Public Prosecutor stated that: “An excessive bail bond may defeat the granting of bail as the accused may find difficulty in getting a bailor acceptable to the court. The reason arises from the principle and basis of our criminal law that the accused is presumed to be innocent until proven guilty.” – Wong Kim Fatt JC But before you kick up your feet and start flipping through Netflix at home, there is something you need to know… The court can cancel your bail! Let’s say you are out on bail and you are at home flipping through Netflix while waiting for your turn to go to court. Suddenly, a PDRM officer comes a-knocking on your door and arrests you. The officer says that they are going to detain you because the court has cancelled your bail. Can that actually happen? [READ MORE: Can Malaysian plainclothes police stop or arrest you?] The answer is YES. Why this could happen would depend on the type of offence you are charged with. So referring back to the categories mentioned earlier: (i) Bailable offences For bailable offences, the principles governing the cancellation of your bail is laid down in the case of Wong Kim Woon v Public Prosecutor. In this case, Wong breached an important bail term when he failed to appear in court. The court decided that when a fundamental bail term has been breached, the court MAY revoke bail. However, the court must first give the accused an opportunity to give reasons as to why the bail should not be revoked. (ii) Non-bailable offences Section 388(5) of the Criminal Procedure Code allows the court to revoke bail by arresting the accused and returning him into custody. An example of a case where this section was considered is Phang Yong Fook v Public Prosecutor. Here, bail was revoked because the accused was alleged to have tampered with witnesses. However, there must be strong evidence before the court can cancel the bail: “In this case, the learned Deputy Public Prosecutor only made vague allegations of harassment, tampering with witnesses and intimidation in support of his application to revoke the bail in the court below. There was no oral or documentary evidence or even an affidavit to support the allegations” If the courts found you guilty and you want to appeal your case, you would have this next question… Can I get bail if my case goes on appeal? At the end of a trial, the court usually has to decide if the accused is guilty or not guilty. If you are found guilty, you may want to appeal that decision to a higher court. If you are found innocent, the prosecution may want to appeal that decision too. In such a situation, section 311 and section 315 of the Criminal Procedure Code tells you if you are entitled to bail. It should be noted that if you’ve been convicted (found guilty) and appeal the case, you’re still legally considered to be guilty during the appeal process. In this case, the bail pending the appeal (covered in section 311) will only be given in exceptional circumstances. The court in KWK (A Child) v Public Prosecutor laid down the factors to consider for amounts to exceptional circumstances: The seriousness of the offence The length of the jail sentence in comparison to the time needed for the appeal to be heard Whether there are difficult points of law to consider Whether this is the accused’s first offence Whether the accused would commit another crime if released on bail Whether the security imposed would ensure that the accused would show up in court as ordered On the other hand, if the prosecution wants to appeal your acquittal (innocence), they would have to rely on section 315. Basically section 315 allows the judge to issue a warrant for your arrest or allow grant you bail. An interesting point to note about section 315 is the judge’s statement in the case of Ment & Anor v Public Prosecutor: “The provisions of s 315 also exhibit an intention of the legislature that the grant of bail is the rule and committal to prison without bail is an exception.” – Vincent Ng JC This means that when it comes to section 315, the court is of the view that granting bail should be a general rule and not granting bail (sending you to prison) is an exception. This leads us to another question you might have... What happens if I don’t agree with the court’s bail decision? If you have been denied bail, you would definitely want to challenge that decision because it is a no-brainer (prison food versus nasi lemak) and you are allowed to do so. The same goes for the prosecution – if you have been granted bail and they want to challenge that, they are also allowed to. This is where section 389 (this is known as the fast appeal) and section 394 (this is known as the slow appeal) of the Criminal Procedure Code come in. You would definitely want to use the appeal under section 389 because the appeal process is fast as the court is not allowed to cancel the bail. They can only grant or reduce or increase the bail amount. On the other hand, under section 394, the court has the power to cancel or alter any bail decisions - which makes the process is much slower. A further interesting point to note is that according to section 50 of the Courts of Judicature Act 1964 and the case of Public Prosecutor v DSA I (Anwar Ibrahim’s case), an appeal for a bail sum can only be made up to the High Court (we will explain the hierarchy of courts in another article) and the Court of Appeal has no power to hear appeals regarding bails. Now that you are armed with the knowledge of bails, you can wow your friends at your weekly mamak sessions and, uh…if you are ever caught for a crime, please look for a lawyer. [READ MORE: In Malaysia, you can be arrested for a crime even if you don’t actually do it]"
"Here's how you can sue or make a complaint about your lawyer in Malaysia Here’s are some questions that we’ve seen numerous times in our comments section: If my lawyer loses my case, do I still have to pay him? Can I sue him for doing a bad job? What can I do if I get conned by my lawyer? You asked, we (finally) answer! With regard to the first part of the question above, well, unfortunately, lawyers in Malaysia can't accept cases on a no win-no fee basis apart from personal injury cases. Also, to be fair to all lawyers out there, it will be completely unfair for you to not pay them after an agreement has been struck regarding their remuneration. After all, a lot of hard work and effort goes into preparing a case and representing you in court. However, that does not mean you can't be compensated if you find yourself in a situation where your lawyer has conducted your case negligently. Perhaps what’s more worrisome is the fact that there are rogue lawyers out there that misuse or run off with their clients' money: Given these scenarios, what can you actually do when your lawyer messes up your case, or even worse, absconds with your money? Let's take a look at the legal remedies and avenues that you have against your lawyer, starting with... You need a cause of action before you can sue When you hire a lawyer, you place your utmost trust in your lawyer to properly handle your case – and quite rightly so, isn't it? Lawyers are highly qualified professionals so you would expect your lawyer to do a fairly decent job. Be that as it may, there is no guarantee of success when it comes to any legal case. Just like how doctors can't guarantee the success of a surgery, lawyers can't guarantee the success of a legal case as well. However, just like how some doctors can be negligent, you could cross paths with a few rotten apple lawyers that could muck up your case as well. But before you drag your lawyer into the doors of the civil court to sue to obtain money, you need to have a cause of action to do so. In simpler terms, a cause of action is the right to sue someone in court. Think of it as going to see a doctor – you’ll only go to one if you have an illness. Similarly, you can only bring a person to court if you have a valid reason to (the cause of action). In claims for compensation against lawyers, the best option that you have is to sue for professional negligence. In such a case, there is a possibility that you may have two causes of action – tort and contract. Tort Unfortunately, we don't have the time to get down to the nitty-gritty of the law of torts in greater detail. However, you can read more on it here: [READ MORE: What is a tort?] In the context of this article, negligence in torts is established if: Your lawyer has committed an act (or carelessly failed to do something) which resulted in financial loss; and It was reasonable for you to have relied upon your lawyer. This concept is known as the duty of care. Luckily for you, the law has recognised the existence of a duty of care in a solicitor-client relationship. This means that all lawyers owe a duty of care to their clients and this doesn’t need be proved to the courts. However, it is necessary to show that your lawyer has breached his or her duty of care. So how bad can a lawyer bungle up your case before being found negligent? In negligence, the standards that lawyers are expected to conform to is what is described as the ‘reasonable competent practitioner'. Therefore, a breach occurs if a lawyer has fallen below the standards normally adopted by lawyers. As a general note, the lawyer is not necessarily negligent if his conduct and practice is generally accepted by the members of his profession, even though a different approach would have been more beneficial to a particular case. Neither will your lawyer be found negligent for not knowing all the country's laws: “Now it is not the duty’ of a solicitor to know the contents of every statute of the realm. But there are some statutes which is his duty to know” - Scrutton L J in Fletcher & Son v Judd Booth & Helliwell That being said, how can you prove to the courts that the conduct of your lawyer has fallen below the standards accepted in practice by members of the Bar? In the context of a professional negligence claim involving other professionals (doctors, accountants, etc.), this is done by the calling of experts (fellow members of that profession) to provide evidence in court that the professional in question has fallen below the standard of a reasonable competent practitioner. However, since judges are considered an expert in the field of law themselves, expert evidence is not usually required in negligence claims against lawyers. The judge can use evidence presented to determine whether the lawyer was negligent or not. Contract If your lawyer accepts an offer to take up your case, a contractual relationship is formed between both parties. In this situation, the written agreement of the contract (known as the “Proposal for Legal Services”) between the lawyer and the client – as well as the verbal agreement between the parties – are crucial as it will determine the extent of the lawyer’s fault. The failure to fulfil the obligations of the Proposal for Legal Services and the verbal agreement between the parties is known as a breach of contract. So for instance, if the lawyer fails to give you a progress report on your case despite a statement in the Proposal for Legal Services or a verbal agreement; then a breach has occurred. However, small-scale firms may not ask you to sign on lengthy and dense contracts that cover the entire scope of legal services offered. This does not mean that they are less likely to be found guilty for a breach of contract than other lawyers because, in this respect, the law of contract implies that all lawyers must perform legal services with reasonable care and skill. Now, for the next part… What if your lawyer runs away with your money? Let's take a look at this example: Yew Dum Gai was involved in a car accident and lost his leg as a result of the accident. Thereafter, Yew Dum Gai hired Mr. Soh Ah Yew as his lawyer to claim compensation for the injuries that he sustained. A year after that, Mr. Soh Ah Yew arrived at a settlement figure of RM200,000 with the insurance company. After settling the case, the insurance company released RM200,000 to Mr. Soh Ah Yew’s client account. Mr. Soh Ah Yew informed Yew Dum Gai that the case has been settled. However, after contacting and meeting Mr. Soh Ah Yew several times, Mr. Soh Ah Yew still failed to released the settlement sum of RM200,.000 to Yew Dum Gai. As a quick note, a client account is sort of like an in-between bank account that law firms must have to hold their client’s money and issue out payments (such as court fees) on behalf of the client. It is common practice in conveyancing transactions for lawyers to hold monies on behalf of their clients as stakeholders until the completion of certain transactions. If this is beginning to sound like Dothraki to you, allow me to explain. A stakeholder is someone who holds money temporarily on behalf of another person pending the outcome of a future event. Against the backdrop of the above scenario, Mr. Soh Ah Yew owes what is called as fiduciary duty – not to abuse or take any secret advantage based on the trust that Yew Dum Gai placed on him as a stakeholder to hold monies on his behalf. This is emphasised by rule 14.10(3) of the Rulings of the Bar Council: “A Solicitor acting as stakeholder for 2 or more parties must strictly adhere to the terms of the stakeholding at all times. No money or document held by a Solicitor as stakeholder shall be released, utilised, applied or otherwise dealt with by such Solicitor except in accordance with the terms of the stakeholding or with the express written consent of all relevant parties...” If your lawyer runs off or fail to release your monies like how Mr. Soh Ah Yew did above, you have the right to sue your lawyer for professional negligence due to a breach of fiduciary duty and for a breach of contract to recover your monies. Further, a breach in stakeholding terms under rule 14.10(3) of the Rulings of the Bar Council is a serious wrongdoing as it amounts to professional misconduct under section 94(3)(k) of the Legal Profession Act 1976 (“LPA 1976”). In this regard, you have the right to lodge a complaint as a lawyer being found guilty could be suspended by the Advocates & Solicitors Disciplinary Board: Section 94(4) of the LPA 1976: ”Where an advocate and solicitor: (a) has been found guilty a the court of law of any offence involving dishonesty, misuse or misappropriation of any money or property of a client or of any other person: …the Bar Council may apply to the Disciplinary Board for an order suspending such an advocate and solicitor from further practice…” The Advocates & Solicitors Disciplinary Board is the body set up to hear and investigate complaints of professional misconduct among all lawyers, pupils and registered foreign lawyers in Malaysia. More information on this at the end of the article. The LPA 1976 has provided a definition of what professional misconduct actually means. According to section 94(3) of the LPA 1976, professional misconduct is defined as “a conduct or omission to act … in a professional capacity which amounts to grave impropriety...”. Section 94(3) also provides a list of behaviours which amount to misconduct such as: (a) being found guilty for a criminal offence; (b) breach of duty to court including a failure to comply with a promise in the course of legal proceedings to a court; (c) dishonest or fraudulent conduct; (d) breach of any rule of practice and etiquette of the profession; and (e) being declared a bankrupt. You can view the full list in the link above. The consequences of being found guilty for professional misconduct may include a fine not exceeding RM50,000, reprimand or censure, suspension, and every lawyer's ultimate nightmare, the striking of an advocate and solicitor off the Roll as per section 103C of the LPA 1976. What can you sue your lawyer for? Image from sayingimages.com Just to sum up what we have touched on so far, you can sue a lawyer in court for professional negligence: Under torts in negligence and for a breach of contract for a failure to do what a reasonable competent practitioner would have done in the circumstances of a case; and For a breach of fiduciary duty and breach of contract if he fails to release your money to you. Enough with the law now, let's move on to everyone’s favorite question: What can you claim for? If you are a victim of professional negligence, you can claim for all financial losses suffered as a result of the negligent advice or actions of your lawyer. This can be: Professional legal fees billed by your negligent lawyer; Court costs claimed against you by the winning party; Costs involved to reinstate the claim or to file a fresh action in court (inclusive of instructing new solicitors); Out of pocket and travel expenses; and Loss of chance to sue due to expiry of time limit. Although most of these claims are pretty much straightforward, claims for the loss of chance/opportunity to sue (point (e)) can be quite tricky as it requires you to prove that there are reasonable prospects of success if the claim been fought out by the negligent lawyer. The court will then have to evaluate the chances of succeeding based on various factors such as the possibility of settlement, withdrawal of the case, and the prospects of succeeding after trial based on the evidence. The value of a claim against an alleged negligent lawyer turns on its own facts and pretty much depends on the value of your losses. For this and any potential claim for professional negligence, it is best that you seek the advise of a practising lawyer. Yup, you need to fight lawyer with lawyer (and make a complaint) If you strongly believe that you have a genuine complaint for professional misconduct against your lawyer, you should direct your complaint to the Advocates & Solicitors Disciplinary Board by calling their office phone number at 03-2034 1911 and/or emailing them at secretariat@asdb.org.my. The relevant guidelines to make a complaint and complaint form can be found here. There is also a very well-written FAQ on complaints and disciplinary proceedings against Advocates & Solicitors, the link of which can be found here. Indeed, the practice of law is a very noble profession, but there's always a black sheep in the flock who ruin the reputation of the rest. In this sense, reporting them would prevent things from getting baaaa-d to worse."
"Is it legal for Malaysian shops to charge you extra for paying by card?  You’re out doing some shopping which you’ve been putting off for the longest time because of work. After your retail therapy lust is satisfied, you head over to the cashier but, in your excitement, realized that you forgot to withdraw cash. So you pull out your nifty credit card to pay for the goods that you didn’t really need in the first place. This is when it might happen - the cashier tells you that the shop imposes an extra charge on top of your bill if you pay by card. The extra charge is usually 1-3%, and can be waived - only if you pay by cash, which defeats the purpose of paying by card. You might have thought twice about paying by card at that point, and might have even hurried off to the nearest ATM machine to withdraw cash to make the payment. But why do shops do this at all? In the first place, are they even allowed to charge you extra for paying by card? Well, you may not know this but... Shops are charged by their bank whenever you pay by card To process a card payment, shops are actually charged a certain amount by their bank known as a “MDR” (Merchant Discount Rate). The exact amounts that a bank charges may differ from bank to bank, and debit and credit cards are also charged differently. But there are actually regulations made by Bank Negara in the Payment Card Reform Framework (PCRF) to limit the cost of card payments on Malaysian shop owners. Paragraph 8.1 of the PCRF limits how much shops are charged for payments made by local debit cards. It states that banks cannot charge shops more than- 0.15% of the transaction value; or 50 sen plus 0.01% of the transaction value ...whichever is lower. To use an example, if you pay RM50 with your debit card, the shop would be charged a maximum of 7.5 sen (0.15%). And if you pay RM3,000 using your debit card, the shop would be charged a maximum of 80 sen (50 sen + 0.01%). It’s apparently more expensive for shops to accept your credit cards. In Paragraph 8.4 of the PCRF, shops can be charged up to 1.1% of credit card transactions if their payment network has established a “Market Development Fund”, or up to 1% without. To keep this topic on track, we won’t be explaining the Market Development Fund, but you can read more about it in Paragraph 8.4(b) and (c). Shops cannot transfer the MDR cost to customers by charging them, because.… It’s illegal for shops to charge you for paying by card Since shops are charged whenever you make a card payment, it obviously takes up a little bit of their profit. Shopkeepers who don’t want to bear these extra costs might make their customers pay for the difference, but it’s not allowed for 2 reasons. The contract with their bank doesn’t allow it When shopkeepers sign up to have a bank process their card transactions, they signed a contract their bank. That contract contains a long list of things they promise to do and not to do. And one of those things they promise is to never charge their customers to pay for the MDR. Here’s a sample from RHB Bank’s Merchant Agreement. And here’s the section from Maybank’s Merchant Card Service agreement. The shop will have breached the contract with their bank. And if the bank so chooses, they can terminate their card processing services - which means the shop will not be able to process card payments anymore. Bank Negara’s PCRF doesn’t allow it either Here’s something that might surprise you: shops are actually allowed to tell you they prefer debit or credit cards, and also whether they prefer cards from certain banks! This regulation in the PCRF is actually a restriction on the banks themselves. Banks aren’t allowed to stop shops from encouraging customers to use certain types of cards. And what shops can do to “steer” (encourage) their customers towards using those cards is specifically mentioned in the regulation. Shops are actually allowed to indicate a card preference to their customers, and even offer discounts and benefits for using a certain card with them. But they are still not allowed to impose a surcharge on card payments. Payment Card Reform Framework - Paragraph 9.5(a)(i) - in part “..the act of “steering” includes the act of indicating preference or offering discount or other benefit for the use of a payment card or a payment card network but excludes the act of imposing a surcharge on a payment card transaction” The PCRF also states in Paragraph 9.4 that banks must stop shops from charging customers for paying with debit cards and international prepaid cards. As for credit cards, banks have the option of restricting shops from charging as well, but are not required to. Here’s how you can report offending shops If you ever get charged extra on top of your shopping bill because you paid by card instead of cash, you can report the incident to the bank which processes the card payments for that shop. You’ll find this information on the transaction slip that you’re given after you pay. You can also report offending shops to Bank Negara by calling 1300-88-5465, or sending your complaint to bnmtelelink@bnm.gov.my"
"Latin law term or Harry Potter spell? We bet you can't tell the difference in our quiz! More than 2,000 years old, Latin was the Lingua Franca of the Roman empire which also formed the basis of government and law that we have today. Because of that, Latin terms are still actively used in courts around the world. But you know what else uses Latin? Harry Potter spells! Take the quiz below and see if you can tell the difference, and let us know how well you did in the comments :) Harry Potter spells sourced from the Harry Potter wiki – Don’t cheat!"
"Here's how you may get in trouble with Malaysia's (upcoming) Fake News law [ UPDATE: The bill has been REPEALED by Parliament on December 19th, 2019. ] [ This article has been updated to include changes made to the Bill on March 30th, 2018. ] The word on everyone’s lips (and newsfeeds) the past week or so is the Anti-Fake News Bill – commonly known as the “Fake News Law” – that has been brought to discussion in Parliament at the time of writing. It needs to be mentioned straight up that a “Bill” is NOT a law…. yet. As a quick 101, a proposal (the Bill) has to first pass through Parliament (Dewan Rakyat), then through the Senate (Dewan Negara), be approved by the Agong, and included in the Federal Gazette for it take effect as an actual law. Even then, it may still take some time for the law to take effect as some laws have stipulation that a minister first has to approve when the law becomes enforceable, like the Animal Welfare Act 2015 which was gazetted in 2015 but only came into force in July 2017. It’s also worthwhile noting that up till it’s approved by the Agong, the Bill can be amended at any of these stages, so what you’ll see in this article may be different if and when the actual Fake News law comes into effect. You can read about the process in further detail in this article by Cilisos, or on other ways where laws are formed or changed in our article below: [READ MORE: Where does Malaysia get its laws from?] With thanks to our friends at Suaram who sent us a copy of the Bill, let’s take a closer look into how it could possibly affect you if it becomes a bona fide law. [Update: The Bill was recently made available to the public via the Parliament’s website. Click here to view. All screenshots in this article are from the copy shared by Suaram] What the Bill defines as “Fake News” First off, let’s take a look at how Section 2 of the Bill defines “fake news”: Simply put, any information that has the potential to be digested (read, heard, or viewed) by the public may have a tendency to fall under the category of fake news. UPDATE: The version of the Bill that was passed in Parliament changed the word “knowingly” in Section 4(1) to “maliciously” and reduced the jail time from 10 years to 6 years. There is no updated version available at time of writing, so we are reproducing the older version below, with the amended parts underlined: Of course, any transmission of information requires a medium such as a magazine or a website, so the Bill also defines publications to encompass written and electronic formats. For purposes of this article, we’ll only be looking at electronic formats, which are defined as: Essentially, this can encompass anything from a blog post to a Whatsapp message. To see how the law can actually be applied, Section 4(3) of the Bill outlines 8 sample scenarios illustrating how someone can run afoul of the law. While it’s pretty much a given that you’ll get in trouble for being the author of untrue news, what you may not be aware of is that you can also get in trouble for being the source of fake news: In such a scenario, the publisher won’t be at fault as they had acted on information given by you, although this is also on the assumption that the publisher had no way of fact-checking the legitimacy of your information (such as information from a meeting that was held behind closed doors). But it will affect everyone. not just the media While popular conception is that this Bill will only affect media outlets, reporters, and bloggers rather than regular people, it isn’t necessarily the case. Let’s take a look at some other scenarios which could, in all probability, happen to anyone with a smartphone. You (and everyone else) can get in trouble for sharing fake news So let’s say you wrote a whatsapp message about how a lawyer who knew too much of a certain politician’s involvement in a scandal was murdered (that you know is fabricated) and sent it to a group chat. Some people in the group chat forwarded it to their own contacts, who do the same. At some point, someone takes a screenshot and posts it on Facebook, which again gets shared. In this situation, you (the person who wrote the news) and everyone along the chain who knew it was fabricated but shared it would have run afoul of the law. You can get in trouble for issuing false or defamatory warnings Remember that incident in 2014 where Cadbury was accused of having pig DNA in its chocolates? You’d probably get in trouble if you were to use this incident as a call to avoid eating Cadbury chocolates in the future, as the claims were found to be untrue. You can get in trouble for making false claims in a public speech Yup, you don’t have to be a publisher or be on social media or the internet to get in trouble for spreading false news. Other methods highlighted in the illustrations (not covered in this article) are press conferences, impersonating a government agency, or publishing an advertisement. What happens if you created or spread fake news? Assuming that you’ve posted fake news, there will be three courses of action that can be taken – You’ll be asked to remove the offending post and/or You’ll be fined and/or imprisoned; and You’ll be asked to make an apology For illustration, we’re going to use the example that you published a Facebook post that John stole money from an orphanage to fund his political campaign. Under Section 7 of the Bill, John can make an application to the court to get the post removed after making a police report and submitting proof that the claims were untrue. This application is ex-parte, meaning that the court can make the decision without hearing your side of the story. If the court agrees with John, you’ll be sent a notice by mail to your last known address, email, and even your social media account to remove the post. If you fail to remove the post within a time frame decided by the court, you’ll be liable to a fine of up to RM100,000. But even if you’ve removed the post, you won’t be out of the woods yet. The Public Prosecutor can also decide whether or not to charge you with a crime under this law. If you’re charged, you’ll be brought to trial (this isn’t ex-parte, thankfully) and, if found guilty, you’ll be facing a fine of up to RM500,000 and/or up to 6 years in prison, plus an additional RM3,000 for each day the offence is continued. Not just that, the court can additionally order you to issue an apology to John, which will net you an additional charge for contempt of court if you don’t. [READ MORE: What’s a Public Prosecutor?] Additionally, something else that’s interesting to note is that you don’t have to be Malaysian to get in trouble under the Fake News law. Section 3 provides for something called “Extra-territorial application”: What this means is that, as long as the fake news concerns Malaysia or a Malaysian citizen, any person can still be found liable under the Fake news law regardless of his citizenship or physical location; and will face the same action as mentioned above. For clarification, the Bill appears to be applicable to everyone so you don’t have to be well-known or in politics to make a complaint. We are all John :) But can you tell whether the news is real or fake? While we realize that there are many questions regarding the Bill such as the fairness of implementation, stifling of media freedom, or even technical aspects like how a foreign party can be brought to court or the overly wide scope of what can be considered “fake news”; the answers are perhaps only known if the law actually gets passed and comes into effect. However, it is also true that fake news is a problem, and not just in Malaysia, but in other countries as well. The Malay Mail Online has a list of other countries that are implementing (or looking into implementing) laws against fake news. This is because, if left unchecked, fake news could potentially create fear, misunderstanding, or even disrupt the peace. An extreme example of this was in the US, where a man shot up a pizzeria because he believed unverified stories that the shop was a front for child sex trafficking. But at the end of the day, perhaps the best way to prevent fake news (or getting in legal trouble for it) is to self-regulate. In our earlier interview with the Communications and Multimedia Content Forum of Malaysia (CMCF), executive director Mustaffa Fazil outlined two simple steps that anyone can do: Employ common sense and take a moment to consider your intentions and the possible consequences Fact check through google or sites like Snopes and Sebenarnya.my At the end of the day, even if this Fake News Bill doesn’t get passed, there are enough laws already in place to warrant taking a moment to think before hitting the Publish or Share button. [READ MORE: Is there freedom of speech in Malaysia if you can get arrested for Facebook posts?] [READ MORE: In Malaysia, shaming someone on social media can land you in jail]"
"If you find money on the street in Malaysia, can you legally keep it? Most of us have experienced finding some money while walking down the street. We pick it up, and look around to see if there’s anyone looking for something they’ve dropped. If there’s no one around, we now don’t know whether we should (or can) keep it. Is there a law that covers finding money on the street? The law in question is called “conversion”, but it has nothing to do with religion! Basically, a “conversion” happens when someone treats something as if it’s theirs although it belongs to someone else. [READ MORE - Conversion also covers the things your friend borrowed, but never returned] So relax, it’s perfectly legal if you keep money that belongs to no one - it’s there abandoned on the street! But if the money was clearly dropped by someone, and you take it instead of returning the money, you might run into legal trouble. The same goes for a wallet. This is where your confusion might come in - when exactly is it okay and when is it not? For money, it’s okay when you can’t find the owner The law of conversion in Malaysia is covered under Section 403 of our Penal Code. Conversion is usually a tort that you can sue the person for, but in more serious cases, it can be a criminal offence as well. Section 403 of the Penal Code “Whoever dishonestly misappropriates, or converts to his own use, or causes any other person to dispose of, any property, shall be punished with imprisonment for a term which shall not be less than six months and not more than five years and with whipping and shall also be liable to fine.” The Section comes with a whole bunch of illustrations and examples to clarify how the law applies to everyday life. And the part we’re interested in for this article is Explanation 2. “A person who finds property not in the possession of any other person…...he is guilty of the offence above defined, if he appropriates it to his own use, when he knows or has the means of discovering the owner, or before he has used reasonable means to discover and give notice to the owner, and has kept the property a reasonable time to enable the owner to claim it.” It’s a bit long-winded but basically it means that if you find something that doesn’t belong to you, you have to return it to the owner, or try finding out who the owner is, before you can legally keep it. As we mentioned in passing earlier, it’s acceptable to keep something lost on the street if it’s impossible to find the owner. When we find a RM50 note, it looks almost the same as every other RM50 note. It doesn’t exactly have a person’s name on it, so we don’t know who exactly it belonged to (so we can keep it). This is also why it’s not okay to keep money that was just dropped by a person - the owner is right there in front of you. What if you found someone’s wallet instead? If you find someone’s wallet, it probably has their IC and other belongings which clearly identify the person. As the person who found the wallet, it’s now your legal duty to return it to the owner since the owner is clearly identifiable. Under Section 403 of the Penal Code, Explanation 2 also has an example under Illustration (f), which says that if you find something belonging to someone else, you must first try to find out who the owner is, before you can use it for yourself. So if you find a valuable ring, someone’s wallet, or even “just a book”, the right thing to do in law is to find out who the owner is. As an example, let’s say that you found a wallet that doesn’t contain any identification, so you don’t know who’s the owner right away. This is a tricky situation because you’re only required by Section 403 to use “reasonable means” to figure out who the owner is. It still might not okay to keep the wallet, because you can still try to find out who the owner is by asking people or posting on social media about a lost “brown leather wallet with two big scratches on the top” for example. But on the other hand, it doesn’t mean that you have to launch a nationwide campaign to find the owner either. What’s “reasonable” for you to do will vary depending on the situation and there’s no clear cut answer, but in this situation, you can simply turn the wallet in to the police to see if anyone comes to report a missing wallet as well. You can help society enforce this law People lose their things time to time, and people find lost items all the time too. Rather than tell ourselves that “it’s the police’s job to enforce the law”, we can also help others out by doing our part to make sure these lost items find their way back to their owners. It could mean telling someone who found a wallet to get it to the authorities, or getting something we picked up to the rightful owner. It could even be as simple as telling our friends and family that it’s the right thing to do. After all, if we ever lose something precious to us, we’d want others to do the same."
"Why do some Malaysians get arrested for one crime and charged for another? If you have been keeping up with the news, you would have heard of some cases where Malaysians have been arrested for one crime but then they ended up getting charged or convicted for a different crime. The most common example that Malaysians would be familiar with is when someone gets charged with murder but convicted with manslaughter instead (to get the difference between murder and manslaughter, click here). Other than that, there was the case of the Datin that was charged with attempted murder of her maid, which was then reduced to causing grievous hurt, sparking outrage online to the point that a petition was created. The question of the hour... Can they randomly change the charge? We have covered how a criminal trial works in Malaysia but, in brief, once a person is arrested and the police have gathered enough evidence, the case goes before the Public Prosecutor. The person who is in charge of charging (heh) Malaysians with crimes is the Public Prosecutor (which is sometimes referred to as the PP). You can read more about the Public Prosecutor’s powers in our article here. [READ MORE: Why are some Malaysians released after getting arrested?] The Public Prosecutor then decides whether or not there is enough evidence to prosecute. If there is, the arrested person will be formally charged in court. If the accused pleads not guilty to the crime, the case will proceed to trial. There are several things that a charge must contain and this can be found in Chapter XVIII of the Criminal Procedure Code (“CPC”) but we won’t go into them for the purposes of this article. We might cover it in a separate article but it’s not important for the purposes of this article. This leads us into the first type of scenario wherein a charge can be amended is before the case formally starts. This means that at any time before the charge is formally read out to the accused, the Public Prosecutor is allowed to amend the charge. This is allowed to enable the prosecutor to choose the best charge depending on the evidence that is found after the investigation. Aside from amending a charge before the start of proceedings, the Public Prosecutor also has the power to amend the charge at any time during the proceedings. The reason why the prosecution is allowed to amend the charge is to ensure that any evidence that they discover during the course of the proceedings can be taken into account, and the accused can get a fair trial. In order to amend the charge here, the prosecution has to apply to the court under section 158 of the CPC and court will amend the charge. The third way a charge can be amended is when the court themselves decide to amend the charge. Similarly, the section that gives them this power of amendment is found in section 158: Any Court may alter or add to any charge at any time before judgment is pronounced. Do note that despite the prosecution and court relying on the same section, it involves 2 different scenarios; one where the prosecution applies to the court, and the other when the court themselves make such a decision. To see how the court exercises their power under section 158, we must cross-reference it to section 173(h)(ii) which reads: If the Court finds that a prima facie case has been made out against the accused on an offence other than the offence charged which the Court is competent to try and which in the opinion of the Court it ought to try, the Court shall amend the charge. The section basically says that if the court realises that a prima facie case (basically, on the face of it and you can read more about it here) has been made out for another offence than the one the accused is initially charged with, the court can amend the charge. Similar to why the prosecutor is given the power to amend, the court has such a power in order to ensure that the accused gets a fair trial. It is also important to note that while the court can amend the charge, they cannot amend it upward. This means that the court cannot amend the charge to a heavier offence; only a lighter one. For example, the court can amend a murder charge to manslaughter or grievous harm but not the other way around. The severity of the charge is determined by the prosecutor and the court cannot compel the prosecution to proceed with a heavier charge if he is content with a lesser one. To summarise it for you guys, there are 3 scenarios where a charge can be amended: Before trial starts, by the prosecutor After the trial starts, by the prosecution’s application After the trial starts, by the court’s own decision However, the court or the prosecution cannot randomly use their powers because at the end of the day… Justice is the final consideration It is a common saying in law that justice must not only be done, it must also be seen to be done. This means that neither the court nor the prosecutors are allowed to use their powers simply to oppress the accused. They must use it to ensure that the accused gets a fair trial and that the prosecutor must not act with the view to merely obtain a conviction. At the end of the day, the purpose of a charge is to let the accused know clearly what he is being charged with and this will allow him to prepare his defence, facilitating a proper trial."
"Ever lent a friend something but never got it back? Malaysia has a law for that Have you’ve ever had a friend borrow something from you, and then never return it? Hopefully, the thing went missing, and your friend didn’t sneakily sell it to someone else - that would be quite the betrayal. It feels like your stuff was stolen, but your friend didn’t exactly rob you either. So legally speaking, what happened here? This kind of scenario is usually a small issue where a friend didn’t return a book, or forgot about your tupperware they were using some time ago. But as trivial as it is, you might be surprised to learn that there are old laws that cover this type of scenario. It’s called “conversion”, and can cover anything from your missing copy of Harry Potter, to an apartment you and your family bought together. “Conversion” is like saying a public road belongs to your grandfather You’ve probably heard the expression “you think this is your grandfather’s road?” directed at people who drive recklessly. “Conversion” is basically that - treating something that’s not yours as if it’s your own. It’s recognized as a tort (basically means “wrongdoing”, and you can sue for it) in Malaysia through the case of Tay Kian Hock v Kewangan Bersatu Bhd. [READ MORE - What is a tort? Can eat one ah?] There are 3 components required to prove conversion has taken place. The person did it voluntarily (out of free-will) Something of yours was used without your permission What was done is something only you had the right to do (as the owner) We’d give you the legal quote that explains a conversion but it’s a bit difficult to understand (look for paragraph 20). There are many things that only you as the owner are allowed to do to your belongings. We’ll list a few examples of conversion so you get the general idea: Someone took something away from your possession (like borrowing without permission) Finding something and not returning it to the rightful owner (unless they can’t be found) Your work desk got cleaned out, and you don’t know where your things are Someone stopping you from entering your own house Your neighbour cut herbs from your garden without permission Your friend sold the apartment owned by the both of you, without first talking to you about it Basically, they all involve the person who committed conversion meddling with your ownership. You probably wouldn’t sue your friend over one forgotten book, but you may need consult a lawyer to take legal action when it involves valuable property like an apartment, a car, or even company shares. [READ MORE – If you find money on the street in Malaysia, can you legally keep it?] But how is that different from stealing? Wait a second, conversion includes taking something away without permission - but isn’t that basically stealing? Yes, it could be. There are two main differences between conversion and stealing. The first is that conversion covers a lot more situations than just taking something away. The second is that stealing requires the person to have dishonest intentions, while conversion does not. For example, if you see someone else’s bicycle and take it, you have committed theft. If you took someone else’s bicycle because you thought it was yours, you have not committed theft. But if you don’t return the bicycle, you have committed conversion. The definition of a theft in Malaysia is given by Section 378 of the Penal Code: “Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.” As you can see, theft is specifically the taking of someone’s belongings without their permission, and does not cover the other situations that conversion does. So all thefts are conversions, but not all conversions are thefts. Another important difference is that theft is a criminal offence, while conversion can be both a civil case (between two people) and a criminal one (the government comes after you). Yes, there’s a criminal version of conversion as well Remember earlier that theft is a criminal offence because it involves dishonesty by the thief. Conversion can also be a criminal offence if the offender had a dishonest intent in his mind. It’s covered generally in Section 403 of the Penal Code: Section 403. Dishonest misappropriation of property Whoever dishonestly misappropriates, or converts to his own use, or causes any other person to dispose of, any property, shall be punished with imprisonment for a term which shall not be less than six months and not more than five years and with whipping and shall also be liable to fine. The Section goes on to explain using a few scenarios, which we’ve summarized below: Ali took Bashar’s book, thinking at the time that the book belongs to himself. Ali did not commit theft. But if Ali finds out he was mistaken, but still keeps the book for himself, he’s guilty of criminal conversion. Ali and Bashar are friends. Ali goes to Bashar’s house and borrows a book because Bashar lets him do so. All is still well at this point. But if Ali sells the book off and keeps the money, A is guilty of criminal conversion. Ali and Bashar own a horse together. Ali can use the horse freely because he co-owns the horse with Bashar. But if Ali sells the horse and keeps the money for himself, he is guilty of criminal conversion. Section 403 also explains in Explanation 2 that if you find a wallet on the floor, you cannot keep it without first trying to locate the owner (since there are IDs inside that identify the owner) - or you can be found guilty of conversion as well. But if you found money by itself on the floor, it’s okay to keep it if you don’t know who it belongs to. Remember to return what you’ve borrowed Friends often lend items to each other to share, and help each other out. In return for that kindness, we can be courteous in return by remembering to give back what we’ve borrowed. And if you ever find yourself waiting for a friend to return your belongings, a lot of the time they have simply forgotten about it and could use a friendly reminder. Hopefully you’ll never have to sue someone for conversion, especially not friends and family. After all, we respect each other to build a lasting relationship, not to avoid getting sued."
"3 ways you can accidentally commit crimes while using dating apps in Malaysia Malaysians are no strangers to searching for love through different means, including deploying oranges once a year. However as the pinnacle of the age of Internet looms in front of us, many have switched to the comfort of their phones by searching for companions through the use of dating apps such as Tinder, OKCupid, and TheSugarBook. As a matter of fact, online dating might be more common than you think. According to market research company YouGov, 3 out of 10 Malaysians have used some form of online dating service and 52% know at least one couple who met online. With that being said, there have been cries of scammers and malicious individuals harming others through the use of online dating platform. Such scams, tricks, harms, and other foul concoctions indubitably fall on the wrong side of the law and you can lodge a police report if it happens to you. On the flipside, we might also be doing some of these without realizing that it might be against the law. Nevertheless, prevention is always better than police intervention and with this in mind, we hooked up with the dudes over at TheSugarBook to help list down some common things to guard yourself against and how to do it. [READ MORE: This Malaysian scam is scary because...you get called by the “PDRM” or “Bank Negara”] 1. Catfishers and their best friend, money transfer Unfortunately, this type of fishing is not related to fishing for catfishes and they are definitely not as delicious when caught and cooked. On the online platform, the term “catfishing” is where the scammer adopts a fake persona (usually a hot guy or girl) to lure unsuspecting victims into a relationship. While this can be done for innocent reasons, such as just to try out a platform without revealing your actual details or to live a fantasy life, it can escalate to a point where the relationship becomes too “real” to the unsuspecting victim and very hurtful when it’s exposed – such as in the case of Manti Te’o, an American Football player who was devastated that his online girlfriend died of Leukemia…. only to find out that she never actually existed. On the other hand, it becomes a crime when the unsuspecting partner was cajoled into providing pictures or videos of them in compromising positions and the catfisher then blackmails them using said pictures/videos. You might think that this a remote issue that doesn’t affect many Malaysians, if at all but you would be surprised to learn that the number of Malaysians falling prey to this scam has been placed at 1,750 in 2013 and on the rise since 2015. If you would like to learn more about how this scam works, you can check out this article by Cilisos. The next question is, how do you protect yourself against these catfishers? The most straightforward way is to not send compromising photos or videos online. Aside from that TheSugarBook advises that you should never divulge your bank details or transfer funds to anyone. 2. Prostitution services This is a bit of an iffy area in Malaysia because believe it or not, prostitution is technically not illegal in Malaysia. Before you get excited (for various reasons), while prostitution is not illegal, it is restricted. This means that while the act of money-for-sex is not illegal, all other acts surrounding and leading up to it is. For example, solicitation and living off the earnings of a prostitute are crimes in Malaysia. The murky part of the law is that it is unclear whether Malaysia’s criminalisation of solicitation includes offering money for sexual services. So, you might actually get in trouble with the law if you offer someone else money for sexual services. You can read more about it in our article on whether prostitution is legal in Malaysia. Regardless of whether offering money for sexual services is a crime or not, many dating platforms suspend or ban members who engage in either offering money or offering sexual services. This is because committing either of these acts can be a violation of their terms of service. Basically, it’s a breach of contract and the app providers are allowed to prevent you from using their site ever again. 3. “Serious” crimes To address it off the bat, it’s not that the offences mentioned above are not “serious”, but when we refer to “serious” crimes here, we are referring to crimes such as rape, child, grooming, assault, and so on. Rape and criminal force are crimes under section 375 and section 349 of the Penal Code respectively. As reported by R.AGE, internet-related rape has increased by a staggering 300% between 2010 to 2015. Depending on several factors, the punishment for these crimes can range from 3 months to 20 years in jail. If you’re planning to meet up with someone you’ve met online, TheSugarBook suggests meeting in public places and arranging your own transportation (rather than be picked up by your date) and, if drinks are involved, know your limits and never leave your drink unattended. Aside from the laws against rape and assault which have been long established in Malaysia, Malaysian lawmakers recently implemented a new law on “child grooming” after some undercover journalism by R.AGE exposed how children were being “groomed” for sex in Malaysia through online messenger platforms. If the image of “grooming” that pops up in your mind is of your pet getting sent off to the groomers for a pampering session, you are very far off. According to Unicef (quoted from R.AGE), explains that “grooming” is when someone builds an emotional connection with a child for sexual abuse or exploitation, either online or in person. This then lead to the Malaysian government passing the Sexual Offences Against Children Act 2017. Section 12 makes it a crime for any adult to groom a child and this is punishable with a maximum of 5 years in prison and whipping. Examples of grooming are included in the Act and in brief, they are: When you, pretending to be a teenager, communicate with a child via social media and develop a love relationship with the child in order to produce pornography When you communicate with a child via email so that your friend can have the opportunity to rape the child Essentially grooming can happen whenever there is sexual communication with a child and a child is defined as a person under the age of 18. Aside from grooming, there is also another offence called statutory rape which can be found in the Penal Rape. Statutory rape happens when there is sexual intercourse with a girl is under 16 years old. This means that if you sleep with someone who is under 16, you can be guilty of rape even if she consented to the intercourse and regardless of whether you knew that she was underage. [READ MORE: 7 rape scenarios found in Malaysian law that you probably didn't know about] With all this being said, the golden rule to bear in mind is… Always practice safe communications Sometimes it may be hard to know if the person you are talking to is a scammer or an underage child but the golden rule is to always be careful in all your online engagements. Aside from that, most of the dating platforms have a reporting function for you to highlight to them any discrepancies that you see happening on the site. If you have already become a victim of a scam, you can contact Cybersecurity Malaysia’s helpline at 1-300-88-299 or send a text to 019-266 5850. In cases of rape or assault, the Women’s Aid Organization (WAO) recommends going to the emergency room at a government hospital to be examined, or to a police station. Remember to not wash or clean yourself as that may remove any biological evidence left behind."
"If a worker hurts you by accident in Malaysia, do you sue him or his boss? There’s getting food poisoning, getting hit by a lorry, and in the feature image’s nightmare scenario – getting your car crushed by a pile driver. Being hurt by someone else’s carelessness is never fun. In most cases, you’ll need some time to recover, and you might have to take a day off. But in extreme situations, you might need medical attention and even get hospitalized (hopefully this is never the case). It could just be bad luck that you got caught up in an accident, but what if it was because of an irresponsible worker? [READ MORE - If you bought spoilt or contaminated food, what can you do?] If you’ve ever been the victim of a worker’s carelessness, you’d understandably be angry that you had to pay the price for their mistakes. You might want to go after the worker who injured you, but you also realize he probably has no money to pay you even if you drag him to court! Are you now stuck with an expensive medical bill you have to pay by yourself? Firstly, you should know that in minor cases, it’s best to avoid a legal battle and settle the matter privately as it’s costly and time-consuming. But if you had to be hospitalized for a few weeks after a really bad accident, you might not know that you can actually sue the worker’s boss. Sometimes, the boss has to take the fall for their employees Let’s go back to the food poisoning example. The server brings you your food, which was prepared by the cook, and both of them are employed by the owner. So who should you sue? The cook might be the one who prepared your food using unclean ingredients, or maybe the server’s hands were unclean when he handled your plate. In either case, if you end up having to sue, you should just go after the owner of the restaurant instead because of a legal rule called “vicarious liability”. The reason for this rule is from the UK case of I.C.I. v Shatwell, that employers hire workers for their own benefit, and so must be accountable for their workers’ mistakes if others are harmed. You can also see it as bosses being responsible for their workers, and are then responsible for their workers’ actions. Or you could also be quite blunt and say that the boss has the money to compensate you, and the worker doesn’t. There’s actually a ton of technical rules and litmus tests to determine whether the boss can be held accountable for his worker’s wrongdoings, but we’ll condense it down to a few basic rules here. If the worker was just a freelancer, the boss might not be responsible The general rule for vicarious liability is that bosses are only responsible for the mistakes of their employees, but not the freelancers (independent contractors) that they hire. The law uses some of the following criteria to determine if someone is considered an employee: They’re under the control of the employer (they don’t call the shots over how they do their work) They play a relevant part in the employer’s business (like cooking food in a restaurant, but a medicine company might not be responsible for the delivery service they hire) There are safety risks to the public in their work, which stands to benefit their boss (like a repairman in charge of street lights) If a person can be considered an employee, then their boss can be held vicariously liable for their mistakes. So if you get hurt because of an employee’s carelessness, you can go after their boss, which will give you a better chance at getting your medical bills compensated. If a freelancer (aka independent contractor) was involved, they are usually personally responsible for any accidental harm they cause to others. They work in their own style and they are usually only involved with their employer for a one-off job - their employer is not involved in the decision-making and is not responsible. Think of grass cutters, electricians, and even consultants. There are some exceptions like extra dangerous situations where the employers are also responsible for their freelancers’ actions - but we won’t get into those details for now. But the boss can’t be blamed if the worker was off-duty Bosses are not responsible for every single decision that an employee makes, especially not when they’re off-duty. If an employee is at home and he accidentally sets fire to his neighbour’s house, it would be taking it too far to say that his boss is to blame. That’s because vicarious liability only applies when the employee makes a mistake when he’s performing his duties, or as the law calls it - when he’s in the course of employment. The legal cases about this have been rather technical and complex, but basically the employer will be responsible if: The employee was doing their job carelessly The employer let the employee do something illegal The employee did their job in a way that was prohibited (eg. getting sales by cheating people) The employee was doing something prohibited, but it was for the employer’s benefit (like hurting a customer that was mistaken as a thief) Outside these scenarios, employees are usually considered “not on the job”. A boss can’t be responsible for his security guard if the guard suddenly starts operating the cashier counter. The important point is that employers will not be responsible for anything their employees are not allowed to do. In the case of Iqbal v London Transport Executive, a bus conductor was driving the bus and injured another employee. The bus company was not held responsible because the conductor was not supposed to be driving in the first place (the bus driver was). In case you’re still wondering how the “course of employment” works, here are is a real incident to illustrate. Century Insurance Co. v Northern Ireland Road Transport Board There was actually an incident in the UK where the driver of an oil tanker stopped at a petrol station to transfer petrol from the tanker into the underground tank. He might not have been thinking straight at the time, because he lit a cigarette using a match, and then threw the burning match on the floor. Needless to say, an explosion happened, and the petrol station was destroyed. The driver’s employer was held responsible because the driver was doing his job by delivering the petrol, but did it negligently (by smoking and throwing the burning match on the floor). Consult your lawyer to find out who you can sue That was a little background into how the world of vicarious liability works. One thing is for sure: it isn’t easy being a boss, given that you’re legally responsible for every employee you hire. If you do decide to sue a company for compensation, your lawyer will usually name both the employee and the employer in the legal suit, just to make sure. You’re not going to be using this rule in real life unless you’re in the legal profession, but if you ever encounter a situation where you need to sue someone for compensation, you might have a better idea of what to tell your lawyer. [READ MORE - If your car gets damaged by valet parking, do you sue the valet company, or the shopping mall?]"
"Can judges get sued if they make a mistake in Malaysia? Imagine this scenario – you are in court, waiting for the judge’s decision on your case. You are pretty sure that you are going to win it hands down because you consulted a whole bunch of lawyers and they all tell you that the law in clearly in your favour. Even your opponent is not denying the fact that he was wrong; he is just trying to pay you less damages. As you wait for the judge to deliver his verdict, you sit there with a giant smile on your face andddd the judge then finds that...you are actually in the wrong. Gobsmacked, the smile slides off you like sour juice. Your lawyer is equally floored and even your opponent looks surprised beyond belief. As you exit the court, your anger builds up more and more and that’s it! You decide that you are going to sue the judge for his wrong decision but...can you actually do that? This article was partially inspired by the comments we got on our article about the Low Yat case where the guy was released due to a technical mistake. Many people then asked if the judge could be held responsible and be forced to resign. Well...technically no, because... Judges have immunity in Malaysia Section 14 of the Courts of Judicature Act 1964 reads: “No Judge...shall be liable to be sued in any civil court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, nor shall any order for costs be made against him, provided that he at the time in good faith believed himself to have jurisdiction to do or order the act complained of...” The section above basically tells us that a judge cannot be sued (in a civil action) for anything he does in the course of carrying out his duty if he does it in good faith. This means that even if the judge misinterprets a point of law or misapplies it, he or she cannot be sued for it. Before you get mad, there are legitimate reasons for judges to have this sort of immunity. Section 14 comes from the common law which is rooted in the grounds of public policy. The idea is that if judges don’t have such an immunity and can be taken to court for things that they say or do in the course of carrying out their judicial duties, then the judicial system wouldn’t be able to function as efficiently as it does. This is because the judges would be too dogged with fear and wouldn’t be able to pass decisions without fear or favour. Basically, judges need to free of fear in order to do their jobs well. It’s like how your boss gets mad at you and demands that you change your draft and breathes over your neck while you do it. You tend to be more aware of whatever you are doing and tend to perform slightly worse because you are expecting your boss to lash out at you. The same idea applies for judges; if they keep waiting for the hammer of retribution to fall, they can’t decide cases in a way that ensures justice is served. This is why judicial immunity is coupled with the fact that judges have security of tenure. We won’t go into the nitty gritty provisions set out in the Federal Constitution as it is pretty long but basically security of tenure means that once a judge is appointed, they cannot be removed from office unless they have been found guilty of misconduct and only then, through a special legal mechanism. Aside from that, their age of retirement is strictly provided for and their salaries cannot be reduced. Once again, the judges need to have this because they are the ones who need to interpret the law, free from political issues and they must have the ability to carry out their duties with impartiality. However, it is important to note that this immunity is not absolute. As explained by our past Chief Justice, Tun Ahmad Fairuz Sheikh Abdul Halim, ""The immunity of a judge is not absolute. A judge is not above the law, is he?...If you can prove mala fide (bad faith), you can get to the judge,"" – Tun Ahmad Fairuz Sheikh Abdul Halim as quoted from The Sun For the judges to be immune under section 14, there are two conditions (as a matter of speaking): He must have done the act in his judicial capacity. This means that he can be sued for things he does in a personal capacity. For example, if a judge borrows money from you and fails to pay you back, he can be sued. In the course of carrying out his duties, he must act with good faith. This means that he cannot, knowingly, with bad faith act beyond his powers. Aside from that section 14 only protects judges from civil actions and not if they commit criminal acts such as corruption and this was explained in the case of Indah Desa Saujana Corp Sdn Bhd & Ors V. James Foong Cheng Yuen & Anor: It cannot be gainsaid that a judge who commits any criminal act of corruption or corrupt practice is not immune under s. 14 of the Courts of Judicature Act 1964 (CJA) from prosecution, and the AG, who is also Public Prosecutor, should not represent judges in such cases – Vincent Ng J Now that you know the immunity is not absolute, the next question you may have is what happens if the case falls within the immunity given to the judge and they messed the law up? This is why appeals exist If you are unhappy with the judge’s decision or you feel that he has wrongly decided a case, you can always choose to appeal the case to the higher courts. An example of how an appeal works is the Attorney General appealing against the decision of a Sessions Court judge in a case of suspected maid abuse because the sentence given by the judge is believed to be inadequate. Aside from appealing a case, courts in Malaysia are also empowered with revisionary powers which is basically when the courts have supervisory powers over the courts below them to ensure that a miscarriage of justice doesn’t happen. Section 35(1) of the Courts of Judicature Act is the section that gives the High Court general supervisory and revisionary powers over the lower courts. Beyond that, judicial decisions are also not free from criticisms and commentaries by academics and other courts. The best example of this can be seen through the case of Tan Yin Hong v Tan Sian San, which overturned the highly publicised (and criticised) case of Boonsom Boonyanit v Adorna Properties where the judge said the following: “I totally agree with the learned Chief Judge of Malaya’s view that the error committed by the Federal Court in Adorna Properties Sdn Bhd v Boonsom Boonyanit @ Sun Yok Eng [2001] 1 MLJ 241 was to read the proviso to sub-s (3) as being a proviso to sub-s (2) as well. The error is very obvious because the proviso expressly refers to ‘this sub-section’ which must in the context of that subsection be read as proviso to sub-s (3) only. I am legally obligated to restate the law since the error committed in Adorna Properties is so obvious and blatant.” – Zaki Azmi CJ, Federal Court on the 21st of January 2010 You can read more about the roller coaster case of Boonsom Boonyanit here. However, just because judges’ decisions can be commented and criticised upon doesn’t give you the freedom to run your mouth because they can charge you with contempt of court. Contempt of court can happen in one of three scenarios: You interfere with the court proceedings such as trying to influence a judge or intimidating a witness You scandalise a judge and disobey court orders When you commit sub-judice. Sub-judice is basically a rule that prevents the public from discussing a case which is currently under judicial consideration in order to prevent rumours from influencing the court’s decision. You can read more about sub-judice here. At the end of the day, judges having immunity doesn’t mean that they can act with impunity. They must still act with the final idea of justice in mind and judges who misbehave can be removed from their position. It really is nothing different from your boss giving you the power to make decisions when you are working but such decisions you make must, at the end of the day, benefit the company."
"Kadang kala, polis menahan orang yang melindungi diri dari perompak...kenapa? [This article is also available in English] Ada sesetengah orang berpendapat bahawa undang-undang mempertahankan diri (self defense) di Malaysia ni kelihatan seperti tak adil, malah ia mendatangkan kemarahan netizen apabila mangsa rompak ditahan kerana membunuh atau mencederakan perompak dengan teruk – contoh yang terbaru berlaku apabila seorang lelaki berumur 32 tahun dari Johor ditahan kerana membunuh seorang perompak yang memecah masuk rumahnya. Menurut Kanun Keseksaan Seksyen 96 – 106, anda sebenarnya dibenarkan untuk mempertahankan diri – sehingga tahap membunuh jika situasi tersebut melibatkan rogol, culik, atau rompakan. Ini sudah pun termaktub didalam Kanun Keseksaan Seksyen 96 (Tiada terjemahan rasmi, diterjemahkan oleh ASKLEGAL): Mana-mana tindakan yang dilakui apabila anda menggunakan hak pertahanan diri tidak akan menjadi kesalahan di sisi undang-undang Tapi kalau anda lihat pula di bahagian Seksyen 97 yang berkaitan dengan hak untuk mempertahankan diri dan harta peribadi, telah tertulis bahawa: Setiap orang mempunyai hak, tertakluk kepada larangan (restriction) yang terdapat di seksyen 99, untuk pertahanan... Senang cerita, Kanun Keseksaan Seksyen 96 dan 97 memberi anda hak untuk mempertahankan diri (dan orang lain) dan juga harta peribadi tetapi tertakluk dengan situasi dan larangan yang dibenarkan. Secara jujurnya undang-undang mempertahankan diri Malaysia ni sebenarnya agak luas jadi untuk artikel ni kami akan fokus kepada isu kenapa membunuh perompak mungkin akan menyukarkan diri anda. Jadi sebelum kita mulakan, kami akan terangkan satu salah tanggapan yang mungkin mengelirukan sesiapa yang tidak biasa dengan prosedur polis... Kalau ditahan ni tak bermaksud anda bersalah Kadang-kadang tu bila kita lihat orang yang ditahan tu boleh menjadi topik perbualan untuk beberapa hari – dengan tangan digari dan kelibat polis yang mengiring orang yang ditahan ke kereta polis malah dengan stigma media dan masyarakat, orang yang digari ni sering dianggap sebagai penjenayah. Sebenarnya, kalau ditahan (secara amnya) hanyalah langkah pertama dari tiga langkah sebelum orang yang ditahan itu secara rasminya dikira sebagai penjenayah ataupun bersalah. Tiga perkara tersebut adalah Siasatan – Pihak berkuasa memerlukan semua bukti dan kenyataan untuk memahami apa yang sebenarnya sudah berlaku. Seseorang boleh ditahan bagi membantu siasatan, dan suspek hanyalah suspek; bukannya terbukti bersalah. Dakwaan – Setelah terima bukti yang mencukupi, pihak pendakwa raya akan mengeluarkan tuduhan undang-undang terhadap suspek dan ketika ni suspek akan ditahan semula atau dipanggil naik ke mahkamah. Walaupun sebegitu, suspek masih lagi dikira sebagai tidak bersalah. Hukuman – Selepas sesi mahkamah berkahir, hakim akan menentukan sama ada suspek bersalah atau tak berdasarkan bukti dan perbahasan dalam mahkamah. Hanya selepas hakim menjatuhkan keputusan (verdict) bersalah; barulah suspek tersebut akan dikira bersalah dari segi undang-undang. Sudah termaktub didalam undang-undang negara kita bahawa seseorang itu hanya boleh ditahan untuk jangka masa yang tertentu bersebabkan siasatan kes, dan boleh dibebaskan jika tidak mempunyai sebarang dakwaan terhadapnya. Anda boleh membaca lebih lanjut di artikel kami yang lain: [Bacaan lanjut: Kalau anda ditahan, adakah anda secara automatik merupakan seorang penjenayah (English)] [Bacaan lanjut: Macam mana jika hendak tahu jika saya secara rasminya ditahan oleh PDRM (English)] Okay, mari kita ke topik sebenar artikel ini... Anda hanya dibenarkan untuk menggunakan kekerasan yang berpatutan... tapi apa maksud “yang berpatutan?” Seperti yang kami sebutkan tadi, sebenarnya ada had untuk anda melindungi diri anda di bawah Kanun Keseksaan Seksyen 99. Kami akan fokuskan kepada dua topik dalam Seksyen 99 yang sering disalah anggap: Kanun Keseksaan Seksyen 99 (Tiada terjemahan rasmi, diterjemahkan oleh ASKLEGAL) – Perbuatan yang tiada hak pertahan persendirian : (3) Hak pertahanan diri tidak merangkumi situasi di mana anda mempunyai masa atau peluang untuk mendapatkan perlindungan dari pihak berkuasa (4) Hak pertahanan diri tidak merangkumi situasi di mana anda menyebabkan kecederaan yang melampaui kecederaan yang disebabkan dengan tujuan pertahanan diri Senang cerita anda tidak boleh menggunakan alasan mempertahankan diri jika anda mempunyai masa atau peluang untuk mendapatkan perlindungan (seperti menghubungi polis atau lari kepada anggota polis yang berdekatan) atau menggunakan kuasa yang melampau untuk memastikan kesalamatan anda. Point no (3) tu mudah untuk difahami, isu yang selalu mengelirukan adalah Point no (4) – pemahaman apa itu ‘penggunaan kuasa yang berpatutan’ (Reasonable force). Malah seorang peguam yang bertauliah pun sukar untuk menjelaskan tentang isu ‘penggunaan kuasa yang berpatutan’ ni seperti yang diperjelaskan oleh peguam Datuk Haaziq Pillay (yang kemudiannya telah dikecam netizen) sewaktu ditemubual oleh TV3. “Sebagai contoh, seseorang memasuki rumah saya dengan tujuan merompak. Sekiranya perompak tersebut menggunakan pisau yang kecil dan saya pula mempunyai pistol maka ia tidak memadai. Menurut undang-undang kalau saya atau keluarga saya berada dalam ketakutan atau nyawa kami terancam baru boleh saya menembak perompak tersebut” – Datuk Haaziq Pillay, dalam temubual TV3 yang dipetik dari Says.com, diterjemahkan oleh ASKLEGAL Kenapa serpihan undang-undang tersebut sukar untuk dijelaskan kerana setiap kes dinilai secara asing dan berpandukan situasi berkenaan. Perlu diingatkan bahawa serpihan undang-undang tersebut tak boleh diletakkan secara am kepada setiap kes. Sama ada pihak berkuasa mengambil keputusan untuk mendakwa anda atau tidak bergantung kepada fakta-fakta kes tersebut. “Akhir sekali, mahkamah akan melihat setiap fakta dan situasi mengikut kes yang berlaku. Apa yang orang am sangkakan sebagai pertahanan diri mungkin mempunyai maksud yang berbeza dari mahkamah.” – Sreekant Pillai, Peguam Jenayah, dipetik dari The Sun melalui The Malaysian Bar. Diterjemahkan oleh ASKLEGAL. Sekarang ni kita lihat pula macam mana setiap situasi dan kes membawa kepada keputusan mahkamah yang berbeza. Jadinya kita kena bandingkan saiz senjata perompak ke? Agak kelakar jugalah kalau ada perompak pecah masuk rumah dan anda terus membandingkan pisau siapa yang lebih besar sebelum mengambil tindakan. Contoh yang terbaik adalah kes Palmer (1971) AC814 di mana Palmer (seorang lelaki) telah kantoi ketika mencuri ganja dan dikejar oleh tiga pekerja tanaman. Palmer tu turut melepaskan tembakan dan membunuh salah seorang orang pekerja tersebut. Ketika sesi mahkamah, Hakim United Kingdom, Lord Morris berkata: ""If there has been an attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a Jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."" Yang ni agak teknikal sikit, jadi kita pun bagi petikan asal Lord Morris untuk rujukan sekalian. Di bawah pula terjemahan kita: “Kalau terdapat serangan di mana tindakan untuk mempertahankan diri adalah wajar, maka akan dikenalpasti bahawa seseorang yang mempertahankan diri itu tidak boleh mengukur tahap kecederaan yang akan dilakukan olehnya. Kalau pihak juri berfikir bahawa dalam masa seketika seseorang yang tak terjangka diserang melakukan apa yang dia rasakan adalah munasabah, jujur, dan mengikut naluri; itulah bukti yang terkuat bahawa tindakan defensif yang berpatutan telah digunakan. Maksudnya di sini adalah, undang-undang membenarkan anda (dan juga orang lain) untuk mengambil tindakan mempertahankan diri bersesuaian ketika tu. Sama ada pihak berkuasa bersetuju dengan tindakan anda atau tidak ianya bergantung kepada hasil siasatan – makanya ni telah menjawab persoalan kenapa ada sesetangah orang ditahan kerana membunuh perompak. Secara dasarnya, undang-undang mempertahankan diri adalah untuk membela diri anda atau orang lain dari ditimpa kecelakaan, bukannya menjadi “Hero” yang tak terikat kepada undang-undang macam Batman. Kalau ada masa untuk menghubungi polis, ataupun anda bukanlah lagi berada dalam keadaan bahaya (contohnya perompak tersebut telah menyerah diri), ketika tu sebarang kecederaan yang terjadi kepada perompak tersebut dikira sebagai serangan dan bukannya pertahanan diri. Untuk pengerangan lebih lanjut, kami akan gunakan tiga contoh di mana perompak mempunyai pisau dan anda mempunyai sepucuk pistol: Contoh 1 – Perompak melarikan diri Perompak sedar yang dia tak mampu untuk kalahkan anda dan melarikan diri, tapi anda menembaknya kerana ingin menghalang perompak tersebut dari melarikan diri. Polis mungkin akan mengambil ni sebagai kes bunuh (dan mendakwa anda) kerana anda sudah pun selamat apabila perompak tersebut melarikan diri – perompak tersebut tidak lagi ancaman yang sah dan alasan mempertahankan diri mungkin tak laku di dalam mahkamah. Contoh 2 – Perompak cuba menyerang anda Anda keluarkan pistol dan memberi amaran kepada perompak tersebut bahawa pistol anda mempunyai peluru dan sedia digunakan, tapi perompak tetap berdegil dan terus menyerang anda. Anda melepaskan tembakan dan perompak tersebut mati. Pihak polis mungkin akan membuat siasatan dan membuka kes bunuh tapi, bergantung kepada fakta dan hasil siasatan, anda mungkin terlepas dari dakwaan. Kalau anda didakwa sekali pun, peguam anda boleh lawan dakwaan tersebut di mahkamah atas sebab mempertahankan diri – Anda melepaskan tembakan untuk mengelakkan diri anda dicedera atau dibunuh. Contoh 3 – Terdapat kanak-kanak berdekatan Perompak memegang pisau dan anda pula memegang pistol. Ketika anda berdua sedang bertentang mata, tiba-tiba anak anda yang berumur 3 tahun muncul. Perompak tersebut terus berlari ke arah anak, dan naluri anda sebagai ibubapa terus membuatkan anda menembak mati perompak tersebut. Seperti contoh no 2, anda mungkin terlepas dari disabit kesalahan membunuh tapi kalau kena pun peguam anda boleh melawan kes tersebut di mahkamah – iaitu bagi memastikan keselamatan anak anda. Perlu diingatkan bahawa contoh di atas adalah sangat am dan setiap situasi sebenar akan berbeza Jadi apa yang anda perlu lakukan jikalau mengalahkan perompak/penjenayah? Kalau suspek masih hidup dan bukan lagi ancaman maka anda seharusnya menghubungi pihak polis dan paling takye pun, ikat je perompak tersebut. Apa yang TIDAK dibenarkan adalah menikam atau memberi tumbukan/sepak yang lebih-lebih walaupun perompak tersebut sudah pun mengalah. Ini juga ada kaitan dengan Citizen’s Arrest atau tangkapan awam di mana undang-undang membenarkan anda untuk menahan penjenayah sementara menunggu pihak berkuasa sampai. [Bacaan lanjut mengenai tangkapan awam: Adakah pukul dan tahan pencuri salah di sisi undang-undang?] Kalau suspek tersebut mati, cepat-cepat hubungi polis dan jangan bersihkan diri anda atau tempat kejadian sementara pihak polis tiba. Jangan buat hal lebih dengan cubaan untuk menyorok atau mengalihkan mayat dan/atau senjata yang digunakan untuk jenayah tersebut sebab ini adalah kesalahan dari sisi undang-undang! Ye, anda boleh mempertahankan diri anda dan yang tersayang tapi ni tak bermaksud anda boleh jadi Batman Akhir sekali, undang-undang hendaklah dipatuhi tak kisahlah macam mana situasinya pun – kalau seseorang dibunuh maka siasatan diperlukan tak kisahlah si mati tersebut merupakan seorang perompak atau pun seorang Professor. Kalau undang-undang mempertahankan diri ni dilayan seperti undang-undang sekolah kantin maka dengan mudah saje untuk rakyat Malaysia saling membunuh. Bayangkanlah situasi di mana penulis Asklegal yang baru dimarah teruk oleh editor menjemputnya ke rumah dengan alasan belanja makan, membunuhnya, dan memberitahu polis bahawa editor tu cuba merompaknya. Tak masuk akal juga kalau abam polis kata “Oh begitu ke? Baiklah, selamat malam” dan tak menyiasat, kan? Bagus juga untuk anda sentiasa meletakkan nombor kecemasan “999” di speed dial telefon bimbit anda, atau kalau anda tinggal di Selangor anda boleh muat turun aplikasi MyDistress di mana aplikasi tersebut akan menghantar lokasi GPS kecemasan kepada pihak polis. Anda boleh tekan pautan di bawah untuk muat turun: - Android - iOS"
"Can neighbourhood guards block roads in Malaysia? You are driving down a shortcut that you have used countless times and as you are snickering over gaining the upper hand, you notice a barrier obstructing the road and slam on your brakes. You are confused as to why there is a barrier in the middle of the road and some security guards manning it and roll down your window to ask. The security guard then demands for your IC/licence and explains that the residents in the area have decided to implement certain security measures and only residents and registered visitors can enter the housing area. Angry over losing your favourite shortcut home, two questions pop into your head: Can they block off the roads? Can they demand for our IC or licence for registration purposes? These also happen to be the most-asked questions every time we publish something related to housing or security but since they involve different areas of the law, this article will cover the legalities surrounding the first question while the IC issue will be covered in a separate article. What is the difference between condominiums and landed property? To be more accurate, the difference lies in the title to your property. Land titles for residential areas in Malaysia are divided into strata and non-strata (known as individual titles). Typically, strata titles are for condominiums, apartments, and certain landed properties. The main defining feature for strata properties is not how high it is built but rather owners of strata properties will jointly own what is known as common properties. These are facilities that is provided for by the developer and managed by the management committee and they are things such as roads, gyms and swimming pools. On the other hand, non-strata (individual) titles are for landed properties alone. The owners of such properties only own the land that their house is situated on and any other facilities that may be in the area, such as roads, and parks, will be public property under the management of the local authorities. [READ MORE: Strata title vs individual title – how does it affect Malaysians landowners?] Strata properties can legally block roads For strata titles, having guards and boom gates is less of an issue because for strata properties, you are not only the owner of your property, you are also the joint owner of all the common facilities provided for you in the development. This means that anything within the development is essentially private property and is managed by the developers themselves or the management committee. Since it is private property, the developers are allowed to set up their own gated communities by putting in an application to the relevant authorities. This was allowed after the 2007 amendment to the 1985 Strata Titles Act. For example, in Selangor, in order to establish a gated and guarded community (“GACOS”), the developer must fulfil certain guidelines laid down by the Selangor government. We don’t have a link to the guidelines and they are pretty long to reproduce here but just know that when it comes to strata properties (ranging from condominiums to exclusive townships), the developers must seek the approval of the authority before creating a GACOS community. The point of contention for many arises when the owners of landed properties with individual titles try to set up their own barriers and employ their guards. This is especially true for older, non-GACOS developments. To put it simply, older neighbourhoods usually don’t fall under the GACOS scheme which only came into existence in the 2000s. As these owners merely own the land their unit is situated on, everything else around them is considered public property such as the roads, drainage systems, and parks. Given their public status, you might not be surprised to learn that… It’s actually “illegal” for non-strata properties to block roads Under section 46(1)(a) and (b) of the Street, Drainage, and Building Act 1974, it is an offence for anyone to erect or maintain any obstruction or cover any open drain: “(1) Any person who— (a) builds, erects, sets up or maintains or permits to be built, erected or set up or maintained any wall, fence, rail, post or any accumulation of any substance, or other obstruction, in any public place; (b) without the prior written permission of the local authority covers over or obstructs any open drain* or aqueduct along the side of any street...” Before you go driving around and refusing to stop for the guards, security concerns have created an understanding that such non-GACOS neighbourhoods could be converted into guarded communities if the Resident’s Association (“RA”) applies for permission from their local authorities. Whether or not their application will be approved depends on whether they fulfil the guidelines given by the Ministry of Urban Wellbeing, Housing, and Local Government. One of the pre-requisites for putting in such an application is that the RA must get at least 85% consent from the residents, though the local authority can accept a lower percentage in some cases. However, the problem with this is two-fold. The first is that some of the Resident’s Association will not apply for permission and second, guidelines don’t have the force of law. This created some confusion and strife in certain communities and the municipal authorities would come and demolish barricades which were built illegally or when they failed to obtain the minimum consent from the residents. This strife came to head in a landmark case of Au Kean Hoe v Persatuan Penduduk D’Villa Equestrian. Au Kean Hoe bought a house in the D’Villa Equestrian housing estate and at the time of purchase, there were already two boom gates and a guard house in operation on the road that served as the sole entrance and exit to the housing area. The RA then decided that residents who failed to pay the monthly security fees will have to open the boom gates on their own without the help of the security guards on duty. Mr. Au stopped paying his fees after a period of time and after an epic argument with the guard, decided to drive through the boom gate and then sued the RA for, among other things, nuisance by creating an obstruction on public roads. This action went up all the way to the highest court in Malaysia, the Federal Court, who decided two main things: The guard house and boom gates were not considered obstructions under section 46 of the Street, Drainage, and Building Act. As a matter of fact, the local authorities were fully empowered by that Act and two others; the Town and Country Planning Act 1976 and the Local Government Act 1976 to approve the construction of such structures. The assumption that operating a security barricade in a residential area is illegal is wrong. It is only illegal if the barricades deny the public’s access to a public place. If the security barricades merely regulate access to a certain area, then it’s not illegal as it was done for security purposes and it doesn’t completely deny access to those who wish to enter. While the law has been clarified by the highest court in our country, it is clear that many RAs are still not complying with the guidelines given. According to DBKL, from 2011 to 2017, 158 RAs in KL implemented the guarded communities but only 65 applications were approved by DBKL. This showed that many security schemes are operating illegally and this became a thorn to users of the public areas. Another important point to note is this, while such residential areas can be guarded, they cannot be gated. The difference between guarded areas and gated and guarded areas lies in the fact that if the area is guarded, access is merely regulated. If the area is gated and guarded, then there will erection of fences and the sorts which can obstruct roads. This is why areas with public roads are only allowed to be guarded. However, many of us still get confused over which security measures are allowed for public areas. The best example of this would be the fact that boom gates which are operated by access cards are actually against MBPJ’s guidelines. This leads us to our final point of… If you don’t know it, just ask your local council If you are unsure about what guidelines your local authorities would have, it is always best to ring them up and ask. It is much better for you to ask them and make sure that you get all the proper permissions before erecting barriers as illegal barriers which get torn down will just end up wasting the residents’ money and leave you guys in a limbo. Aside from that, it is important to note that even if you have procured permission from the relevant authorities, you can never restrict someone’s access into a public area or restrict their access to use the public roads. We will discuss the issue of demanding ICs and licences in a separate article but as a teaser...requesting for ICs is illegal. At the end of the day, while we all appreciate enhanced security and a sound sleep at night, whatever security system that is implemented should not fall foul of the law nor infringe upon another person’s rights. [READ MORE: What (legal) powers do security guards have in Malaysia?]"
"Some Malaysians book parking spaces by standing in them. But is it legal? [Klik sini untuk versi Bahasa Malaysia] It’s probably happened to you before. You’re circling in the parking lot looking for an open spot at the mall. You finally see one in the distance, and excitedly drive towards it. Then, just as you’re about to reach it, someone runs across the lane, stands in the empty spot, and waves you off saying they already “booked” it. There have been a some accounts of these incidents happening locally, but it’s not just a “Malaysian thing” either. The most recent incident that went viral (and used in the image above) was in New York where a woman and her mum came running into a space as someone was already parking there. And like the guy says in the incident, it’s a car parking space, not a woman parking space, right? While this behavior can be seen as socially inconsiderate, the next question will be whether or not it’s actually illegal to do it. While you might think it’s a pretty small matter for there to actually be a law directly written about it….. ….there’s actually a law directly written about this kind of situation. It’s definitely illegal to “book” parking spaces Aside from the inconveniences it might cause, booking a parking space by standing in it is dangerous for the person. Drivers don’t usually expect someone to be standing or sitting down in a parking space, and there’s a real risk of being run over. An extreme case would be this Malaysian 3-year old boy who waited in a parking space for 90 minutes before his mum came to take that spot. Standing in a parking space to “book” it is actually specifically mentioned in Section 50(3) of the Road Transport Act 1976 (RTA), and is a criminal offence. The Section is titled “unlawful interference and importuning”, and reads: “If any person, otherwise than with lawful authority, remains on any road or at any parking place for the purpose of importuning any other person in respect of the watching or cleaning of a motor vehicle, or for the purpose of directing any driver of a motor vehicle in respect of parking on such road or at such place, he shall be guilty of an offence.” As you can see, this law also covers situations where a person stays in a parking lot as a “jaga”, or offers to clean the car that enters the parking space. And since the law doesn’t specify, it will apply to both public (like out on the street) and private (like in shopping malls) parking spaces.The general penalty of the RTA applies to this law, and is under Section 119, which puts the punishment at a fine up to RM2,000 or up to 6 months of jail. Repeat offences get a fine up to RM4,000, and/or up to 12 months in jail. As an update, this was confirmed in a Facebook post on the PDRM’s official Facebook page which says pretty much the same thing. But what can we do about it? As to what to do about the person blocking the way, most people see 2 “solutions” at this point (unless you count a shouting match as a solution): Keep moving your car slowly into the parking space until the person backs away Take a photo or video of the person and make them go viral on social media We’ll explain why these ideas aren’t so great, because well… laws. Going slowly into the parking until they leave It may be a crime for people to stand around in parking spaces, but it is equally a crime to run your car into those people. It may be tempting when your emotions are running high in anger, but don’t edge aggressively into the parking space in hopes of scaring them off either because that can also get you arrested for another crime if things escalate. That comes under Section 503 of the Penal Code - criminal intimidation: “Whoever threatens another with any injury to his person, reputation or property…...with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do…...commits criminal intimidation.” Letting social media know about this person These days, people are used to taking photos and videos to shame people on social media. But unless you know what you’re doing, you might want to shy away from putting the story up on social media because you could get into trouble with a few other laws if you don’t do it right. Instead, consider sending the photos and videos to the authorities (more on this in the next paragraph). [READ MORE - Shaming others on social media can be considered a crime] You can get them reported and fined instead Now that you know what you shouldn’t do, you should also know that since standing in parking spaces is a crime under the Road Transport Act, you can report any incidents to the Road Transport Department (JPJ). We Malaysians get very skeptical of some of the laws we have because they seem to come with a lack of enforcement, but we can do our part by making sure that the authorities are informed of these incidences, and can then take action on errant individuals. The public actually has a few ways to make a report to the JPJ (with photo or video evidence): Sending a message with any details you have to 011-5111 5252 over WhatsApp Sending an e-mail to aduantrafik@jpj.gov.my Calling 03-8886-6412 Make sure that your photos/videos show the license plate of the offender, as well as their offence. You should also provide them with: Your contact details (include your IC) The location The date and time The license plate The details of what happened If we’re all aware of the law, we can back each other up Some people out there may be standing in parking spaces out of ignorance of the law; and for the same reason, some people may be unsure what to do when they see such a situation in front of them. Now that you know the law behind “booking” parking spaces, you’ll be more confident in handling offenders if you do meet them (you still shouldn’t do anything illegal to them), and you can back a fellow driver up if you see it happen to someone else. Our civic mindedness can go a long way towards making parking courtesy a social norm. Again, instead of shouting threats and edging your vehicle into the parking space, if the person standing in the parking space is being stubborn about moving, you can simply look up this article and tell them Section 50(3) of the Road transport Act said “hi!”"
"What can the Kad OKU be used for... and how do you get one?  THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect ASKLEGAL's position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article as it has not been verified by a practicing lawyer. by Dr. Chua Sook Ning | sookning@relate.com.my | Relate Malaysia We often think of disability as a physical or mental condition such as a long-term health condition of meromelia (the absence of one or both hands and feet) or perhaps a temporary one such as a broken leg. But disability is much more than that. While this article discusses procedures and rights that are applicable to all persons with disabilities, many of the discussion points presented will be focused on mental disabilities. The word “disable” (“ dis- ""to do the opposite of"" + able ""to be fitting or capable”) just means the lack of ability to do something. The lack of one’s ability to carry out responsibilities and function as a productive member of society may be caused by the person’s current physical or mental condition or by the society’s negative attitudes and environmental barriers. For example, in the case of a person who has depression – with low mood, feelings of low self-worth, difficulty concentrating, insomnia, low appetite and is tired – the impairment is the loss of functioning due to the depression. This impairment limits his participation in daily activities such as the ability to work, or engage in social and recreational activities. What is further limits his functioning and ‘well being’ are: Few mental health resources available. 0.28% to 0.39% of the health budget was spent on mental health resources in Malaysia; only 163 psychiatrists and 12 clinical psychologists worked in the public health system. [2] Stigma Society views depression is as a sign of weakness or laziness and treats people with depression as such. People with mental illness are less likely to be employed, or given medical leave for treatment purposes. The lack of insurance coverage for mental health treatment. Even if he would want to seek private treatment, his mental health treatment is not covered by his insurance plan. Therefore, disability is the combination of two factors: The consequence of the person who has a certain condition of the body or mind which causes significant difficulties in functioning, and limits the person from performing tasks and engaging in social roles The current societal attitudes and barriers that prevent the person from participating fully in society and being treated as on par with someone without disabilities. What are the rights of persons with disabilities in Malaysia? The Malaysian government signed the Convention on Rights of Persons with Disabilities in United Nations Headquarters in 2008. Malaysia's ratification of the Convention on the Rights of Persons with Disabilities affirms broad protections for people with disabilities, including the rights to life, freedom from discrimination, equal recognition before the law, and access to justice, education, employment, and health. The treaty went into effect in Malaysia on August 18, 2010.[1] The Persons of Disabilities Act 2008 defines Persons of Disabilities as: “persons with disabilities” include those who have long term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society. The main purpose of this act is to provide for the registration, protection, rehabilitation, development and wellbeing of persons with disabilities. In short, it is to remove barriers so that people with long term physical, mental, intellectual or sensory impairments can fully and effectively participate in society. In regards to mental states, the Jabatan Kebajikan Masyarakat recognizes mental disability as “...a state of severe mental illness makes a person unable to function either partially or fully in matters pertaining to his or relationships in society. Among the types of mental illness are serious Organic Mental Disorder and Chronic Schizophrenia, Paranoid, Mood Disorder (depression, bipolar) and other Psychotic Disorder and Schizoaffective Disorder as Persistent Delusional Disorders.” The mention of “long-term” is not intended to exclude those with short-term physical, mental, intellectual or sensory impairments. On contrary, the law is to be applied to all persons with either short-term or long-term impairments. [3] How do you get a Kad OKU for mental disability? If you want the protection and rights afforded under the Persons With Disabilities Act 2008 , you need to be registered with the Registrar General for Persons with Disabilities and be issued with a “Kad OKU’ The qualifying criteria for the Kad OKU card are: 1. The person must have undergone at least two years of psychiatric treatment. Psychiatric treatment usually focuses on psychological and biological processes that causes mental illness. Examples of psychiatric treatment include psychotherapy and/ medication. Psychiatric treatments can be administered by qualified mental health professionals (appropriate to the respective treatment) other than psychiatrists. For instance, you can see a clinical psychologist to receive psychotherapy. It is generally recommended that a person’s mental health is monitored by an interdisciplinary mental health team which may include a clinical psychologist, a psychiatrist, a counsellor and an occupational therapist. It should be noted that the requirement for two years of treatment implies that someone with severe depression for a year cannot apply for a Kad OKU despite clear impairment in daily functioning and receiving treatment for a year. 2. Psychiatrists will determine whether the person is suitable to be considered as a Person With Disabilities (PWD). [4] The person needs a letter to the Registrar from the psychiatrist attesting to the person’s current mental health (current social, cognitive and behavioral functioning), and past psychiatric treatment (for at least two years) in order to qualify for a Kad OKU . To make an appointment with a psychiatrist in the public health system, you would need to: Get a letter of referral from a General Practitioner Make an appointment with a psychiatrist at the Department of Psychiatry During the meeting with the psychiatrist: Disclose medical and psychiatric history and all current symptoms; Explore and discuss all treatment options and side-effects. Make a follow-up appointment and continue to be monitored by the psychiatrist; Get a referral to other mental health professionals if necessary. What can you do with an OKU card? Once you receive an OKU card, you will be able to claim certain benefits such as a monthly allowance (Elaun Pekerja Cacat (EPC)), scholarships, tax rebates, and free treatment at public hospitals.[5] The Act also ensures that you have the right to equal access to public facilities, public transportation, education and employment for persons with disabilities as there are for persons without disabilities. Your right to access to employment on equal basis with persons without disabilities is also protected (Section 29). Your employer has to provide favorable workplace conditions and stable employment. Any workplace discrimination can be challenged under the Act. This means that the Employer cannot terminate a person’s employment because a person has a mental health disability if terms of the employment contract has not been violated. Your employer also has to provide reasonable accommodations for your mental health condition. This may include self-paced workloads and flexible hours, different job responsibilities, allowing leave for treatment or during periods of hospitalization or incapacity. If your employer does not know about your mental health condition, they do not need to make any reasonable accommodations. If and when social cognitive and/or behavioral functioning is no longer impaired, you will be taken off the Register of Persons with Disabilities (Section 21 and 25). However, there are some limitations to the law Dr Tiun Ling Ta, the President of Persatuan Orang Cacat Anggota Malaysia, pointed out that the Federal Constitution specifically prohibits discrimination on the grounds of religion, race, descent, place of birth and gender. However discrimination against persons with disabilities was surprisingly omitted. Dr Tiun pointed out further that unfortunately, the recognition for rights of persons with disabilities in Malaysia seems to come from a charity-influenced intention rather than an inherent right. The Act does not provide any clause for anti-discrimination but only “appeal” to the authorities, bearing words such as merayu, meminta izin and hendaklah. The scene that is set for this Act seems to merely be advisory rather than enforcing; in comparison to the execution of the National Service Act, where students face penalties for failing to report for training. Malaysia ratified the UN Convention with reservations to Article 15 and 18. This means that Malaysia is not bound to implement Article 15 and 18. Article 15 covers freedom from torture or cruel, inhuman or degrading treatment or punishment; Article 18 covers freedom of movement and nationality. There were no official reasons given for the reservations although, according to the SUHAKAM Report 2015, the reservation to Article 15 may have been made due to the broad interpretation involving the terms ‘torture or cruel, inhuman or degrading treatment or punishment’ in the Article. Malaysia has not ratified the International Covenant on Civil and Political Rights (ICCPR) and Convention against Torture (CAT), and criminal legislations in Malaysia include death sentence and whipping as part of punishment. Relate is crowdfunding to provide free mental health screenings in English and Bahasa Malaysia. If you’d like to donate, please click this link for more information. Dr. Chua Sook Ning is the founder of Relate Malaysia - a community organization which aims to emphasize the importance of mental health as part of well-being; to decrease the stigma of mental illness; promote prevention and early intervention; develop effective, evidence based and accessible interventions; and encourage the establishment of community support and services for all who need them. She can be reached at sookning@relate.com.my [1] https://www.hrw.org/news/2010/08/16/malaysia-disability-rights-treaty-ratification-important-step [2] ASEAN Mental Health Systems, 2016. http://asean.org/storage/2017/02/55.-December-2016-ASEAN-Mental-Health-System.pdf [3] UN Convention on the Rights of Persons With Disabilities. https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/frequently-asked-questions-regarding-the-convention-on-the-rights-of-persons-with-disabilities.html#iq6 [4] http://www.jkm.simple.my/content.php?pagename=pendaftaran_orang_kurang_upaya&lang=en [5] http://www.jkm.gov.my/jkm/uploads/files/JPOKU/Kemudahan%20dan%20Keistimewaan%20OKU%20di%20Malaysia.pdf"
"Is child labour illegal in Malaysia? You might be surprised. The truth is, most of us are well aware that child labour is a heavily condemned practice in most countries. However, the contradictory fact is that the sight of children at work is far from being an uncommon one – even in Malaysia. A simple trip to your local neighbourhood grocery store might prove this, with children sometimes being obligated with the tasks of being cashiers or shopkeepers. Why is this the case? Are there no laws in Malaysia which prohibit children from working – sometimes in hazardous environments like palm oil plantations? This would certainly be a surprising discovery, considering the progress that has been made in safeguarding children in other aspects, such as the recent advancements that were made legally in the area of child sexual abuse. The answer, in short, is yes. There are strict laws against child labour in Malaysia. But these same laws also make allowances for children to work locally, which is why child labour may not be as illegal as you think. In general, child labour is a big no-no For starters, the prohibition of child labour in Malaysia rests in the Children and Young Persons (Employment) Act 1966, although it was previously a part of the Employment Act 1955. It is expressed coherently in the opening of the former, as seen below: Section 2(1) of the Children and Young Persons (Employment) Act 1966 – Employment in which children and young persons may be engaged: No child or young person shall be, or be required or permitted to be, engaged in any hazardous work, or any employment other than those specified in this section. There are two key components to this ruling that should be taken note of. The first would be the term “child”, which according to Section 1A(1) of the act, is defined as any individual who is younger than 15 years old. The second component, would be the portion that goes “other than those specified in this section.” This means that there is actually such a thing as “legal” child labour. There are 4 types of permitted child labour Curious about what “other than those specified in this section.” refers to? Generally speaking, there are 4 types of work that fall within this perimeter, which also translates to say that there are only 4 classes of work that children are allowed to do, as identified in section 2(2) of the Children and Young Persons (Employment) Act 1966. These 4 are: Light work in relation to family-run or family-owned businesses Work in the field of public entertainment Work that is sponsored by the government within a school or institution Contracted apprenticeships that are approved by authorities A point of interest to note here is the term “light work”, which – believe it or not – is actually defined in the act as: Section 1A(1) of the Children and Young Persons (Employment) Act 1966 – Interpretation (In part): “light work” means any work performed by a worker— (a) while sitting, with moderate movement of the arm, leg and trunk; or (b) while standing, with mostly moderate movement of the arm;...” For example, having a child assume the duties of a cashier would fall under the ""light work"" category, as it only involves moderate movements of the arm while either standing or sitting. Asking a child to carry heavy loads of rice in sacks from trucks into a warehouse, however, would be strictly illegal. However, even when children are allowed to work, they are only allowed to work under certain conditions. Strict rules to rule them all Each of the exceptions mentioned above is subject to very specific rules in terms of working conditions – like not allowing a child to work for more than 6 out of 7 consecutive days – that are specified in Section 4 of the Children and Young Persons (Employment) Act 1966. Additionally, Section 5(1) of the act fortifies these restrictions by stating that children may not work: Between 8.00PM and 7.00AM everyday. For more than 3 hours consecutively without a break of at least 30 minutes. For more than 6 hours a day. For more than 7 hours if they attend school, 7 hours being the cumulative time spent both in school and at work. If they have not had at least 14 consecutive work-free hours of rest since the last work period. In the event that any of these rules and laws are breached, the penalty that you could potentially receive is imprisonment for a maximum term of 1 year or a maximum fine of RM5,000.00, if not both. If you break the law again – be it just once more or many more times – after your first conviction, the punishment increases in severity. For subsequent offences, you will receive a penalty in the form of imprisonment for a maximum term of 3 years or a maximum fine of RM10,000.00, if not both, for each subsequent conviction. All work and no play…. So there you have it. While children are legally allowed to work, this happens under very stringent conditions; and certainly not to the degree of Oliver Twist-like workhouses. Using or coercing a child to beg is also illegal under the Child Act 2001. In the event that you come across a situation in where you think a child is being exploited, you can reach out to the authorities and make reports regarding your observations, such as contacting UNICEF at 15999. You can also contact Malaysian organisations such as the Suka Society, via +603-7877 4227."
"What’s the difference between murder and manslaughter in Malaysia? For most people, our only encounter with murder is through a TV show, or a video game. Those TV series usually make mention of a few kinds of fancy terms to describe the crime of killing of a person: first-degree murder, second-degree murder, homicide, manslaughter… But how are these terms different from each other? Does it mean that some murderers have only one Bachelor’s degree, and some others took a double degree??? That was a joke (because you can’t have manslaughter without the laughter!), but some of you will have realized from crime dramas that “manslaughter” seems to mean that the suspect was at least a little bit innocent - but you couldn’t figure out what exactly it was. So what’s the difference between an outright murder, and manslaughter? Each country’s laws on murder can be very different from each other, but here’s the Malaysian legal position on killing a fellow human. (This isn’t about how to plan a murder and get away with manslaughter okay!) Which crime you committed depends on your intentions In the Malaysian Penal Code, “murder” is defined in Section 300 (paraphrased to make it easier to understand) as: Doing something that causes death, with the intention to kill Doing something with intention to cause an injury, knowing that it is likely to kill (like causing an injury to a person’s neck) Doing something with intention to cause an injury, and the injury is enough in normal situations to cause death (like slashing someone across their chest with a blade) Doing something very dangerous that might kill someone, without any excuse for taking the risk. (“It’s dangerous to do this, but who cares!”) The important element that makes murder such a serious crime is that the person acted out with the intention to take away someone else’s life, or seriously harm them so much that their life is put in danger. The punishment for murder in Malaysia is a mandatory death sentence under Section 302. So what makes manslaughter a “less serious” crime? If someone was killed, shouldn’t it be considered murder? But the reason why people who are convicted of manslaughter are given lighter punishments is that their intention was not as malicious as someone who committed murder… Why does manslaughter have a lighter punishment? Manslaughter is defined differently across the world, and its name is not actually used in the Malaysian legal system. We know it as “culpable homicide not amounting to murder” here, or CHNATM for short. Murder is also a category of “culpable homicide” under Section 299. But the key difference between murder and CHNATM is that CHNATM only involves an intention to cause an injury, but not to kill. For example, you might intend to trip your friend in a stairwell to hurt him as a joke. The stairs are pretty steep and dangerous, so he might get seriously injured or even die from the fall. If your friend really dies, you have just committed manslaughter. But if you tripped him in the stairwell to make him tumble down a long way, knowing that he would get seriously injured or that he might die, you have just committed murder (or attempted murder). The punishment for culpable homicide is in Section 304, which states that you can be jailed for up to 30 years with a possible fine if you intended to cause death, or cause an injury that would likely lead to death. The punishment is different if you only knew that your actions would likely kill someone, but you didn’t intend their death - you’ll get up to 10 years and/or a fine in this case. What if they had a medical condition, but I didn’t know? The takeaway for practical jokers may be to be careful not to take things too far with their friends. Because “I thought tripping him down the stairs would be funny, I didn’t mean to kill him!” is not going to cut it as an excuse if someone really dies. One other scenario that is considered culpable homicide is where you hit someone who is weakened because of a medical condition, and they died from your hit although it would not kill a normal person. This is still considered CHNATM because you had the intention to hit and injure them, even if you didn’t know about their medical condition. You would be innocent of course if the person spontaneously died to a pat on the back since that scenario is quite bizarre, but more importantly: you didn’t intend to harm them at all. TL;DR - Manslaughter is called “culpable homicide not amounting to murder” (CHNATM) in Malaysia. CHNATM happens instead of murder when you didn’t intend to kill, only to hurt. It’s still a serious crime that you shouldn’t be planning, it’s just not as serious as murder. A few more exceptions also apply to culpable homicides There are a few more exceptions in the Penal Code which can change what would have been a murder into a CHNATM. We’re only going to mention the most relevant ones because they can be quite complex to explain without confusing everyone. 1) You were provoked and you lost your self-control Culpable homicide is not murder if you were provoked by a grave and sudden provocation (like by a surprise scare in a dark house), and you kill the provoker because you lost your self control. This exception is not meant to protect wrongdoers, so this law only applies provided that: You were not provoking the other person in the first place You were not reacting to someone performing their legal duty (like a police officer shooting) You were not reacting to someone’s self-defence against you Another notable point is that swearing and name-calling is generally not recognized as a grave and sudden provocation in law, so don’t take people with “colourful” language too seriously. [READ MORE - When can the PDRM fire their weapons?] 2) You were exercising self-defence but accidentally went overboard This exception might apply if you were exercising your right to self-defence of person or property, but you exceeded your right and killed your attacker. If you didn’t intend to kill or do more harm than necessary, then you won’t be charged for murder, although you might still have to answer for culpable homicide. In the case of Wong Teck Choy, the judge decided on this exception applying only when there is a need to kill the other person. So do not continue beating your attacker up if he has surrendered and is not threatening you, because doing so might earn you the death penalty. 3) You killed someone in a sudden fight, in the heat of the moment In this scenario, if you killed someone in the heat of a sudden fight by accident, it might only be a culpable homicide instead of a murder. The Penal Code says that it doesn’t matter who started the fight, but as long as you didn’t plan to take their life, your punishment might be lighter than the death sentence (though you may still go to prison for a while). This is subject to you not taking any unfair advantage or acted in a cruel or unusual manner. For example, if you were fighting with your bare fists it would be fair. But if you grabbed a parang and started slashing the other guy then that is probably an unfair advantage, not to mention cruel. But what if it was an accident? In cases of self-defence, causing the death of your attacker could be taken as a crime if you exceeded your legal right to defend yourself under Section 99 of the Penal Code - but as stated above - it will not be considered murder. There are also certain situations where killing your attacker is justified, which are tabled under Section 100 and include situations where your life is in grave danger, where there’s a threat of rape, and also in kidnappings. [READ MORE - Why do some Malaysians get arrested for killing robbers in self-defence?] In the cases where someone dies in a car accident, the offender may still be arrested to assist the investigations first, but may later be released when no fault is found. This would happen in cases where there is no intention to cause harm, and the offender took enough care to prevent the accident. However, if he was being negligent, like if a driver was speeding and swerving between lanes, then it could be recognized as a separate crime under Section 304A of the Penal Code - causing death by negligence, which carries a penalty of up to 2 years of jail, and/or a fine."
"If I get into a car accident, can I go to the nearest Balai Polis instead of stopping? Sometimes, we hear tidbits of legal knowledge from friends and family such as “if you hit a car from behind it’s automatically your fault”, and “you can’t use a knife bigger than the robber’s to defend yourself”. While these little pieces of information usually come from real Malaysian laws, they are often only a small part of the truth. [READ MORE - It’s not automatically your fault if you hit a car from behind - here’s why] [READ MORE - Why do some Malaysians get arrested for killing robbers in self defence?] In this case, you might have heard of a myth that goes: (the link goes to an opinion piece on FreeMalaysiaToday) “If you get into a car accident, you don’t have to stop because you can just go to a police station within 24 hours to report the incident” Most of us are familiar enough with being told that road accidents must be reported within 24 hours. In case you’re wondering, the law that this comes from is Section 52(2) of the Road Transport Act 1987 (RTA), which says: “In the case of any such accident as aforesaid the driver of such motor vehicle and, if there is more than one motor vehicle, the driver of each such motor vehicle, shall report the accident at the nearest police station as soon as reasonably practicable and in any case within twenty-four hours of such occurrence…” Nobody wants to get into an accident, but if it does happen, we all hope that the other driver is not going to pull a hit-and-run on us. It’s frustrating because the other driver is usually trying to escape responsibility for the accident, and very often these cases end up in a dead end because the police don’t have enough information to track the driver down. So if you haven’t gotten one already, you might want to consider a dashboard camera for your car - which can help record the offending car’s license plate and provide visual evidence to back up your side of the story. That being said though, are you actually allowed to leave the accident scene and go a police station within 24 hours? Drivers involved in an accident must stop If you’ve ever been told that you can skip exchanging information with the other people involved in your accident, then you’ve been misinformed. Section 52(1) of the RTA requires drivers who are involved in an accident to: Stop Give their name and address Give the name and address of the vehicle owner (if the driver doesn’t own the vehicle) Section 52(3) also requires those involved in an accident to assist the police or traffic police, and also help the injured at the scene as much as they reasonably can. Anyone who does not follow these rules commits a crime. The consequences are laid out in Section 119 of the RTA. For first time offenders, there is a fine of up to RM2,000 or a prison sentence of up to 6 months. And for repeat offenders, the penalty is increased to a maximum of RM4,000 or up to 1 year in jail, or both. But that’s not all, the Malaysian Highway Code also has something to say about stopping after accidents. It’s a set of rules for road users that are given force of law through Section 68 of the RTA, and while breaking the rules in the Highway Code is not a crime, whether or not you were following those rules can be used as evidence in court - and it can make your punishment lighter, or worse. Rule 48 of the Highway Code is about accidents - which goes: “If you are involved in an accident which has caused injury or damage, you must stop, help the injured, give your name and address to anyone demanding it, and report the accident to the nearest police station as soon as possible and in any case within twenty-four hours of the accident occurring.” If your accident is a severe one and ends up going to court, failing to stop and help could be taken as a reflection of your poor character and lack of remorse. And may actually compel the judge to punish you more harshly. A bad attitude can become what is called an “aggravating factor” in a criminal trial for the prosecution to argue that a heavier sentence is needed to discipline you. [READ MORE - Cooperating with the authorities can get you a lighter sentence in court] But if you see some thugs coming for you... That being said, if you find yourself in a dangerous situation after an accident, like if you are suddenly surrounded by an angry mob, you may want to get out of there as fast as you can anyway. A lot of us have heard stories about people getting bashed up, threatened, and even robbed after getting into an accident. Although we don’t know how true those stories are, or how often they happen, if it does happen to you, don’t stop until you get to the authorities. Although there is a legal duty to stop, there is also a real danger of getting beaten up so you should use your right to self-defence in Section 96 of the Penal Code by avoiding the conflict altogether. Obviously, you should explain the situation to the police when giving your report. So, no you can’t go to the police station, even if you’re in a rush In a situation where you’re injured in an accident, you’d be pretty angry and disappointed to see the other driver speeding off in a hurry instead of stopping to check on you. You’re going to report the case as a hit-and-run because you don’t know if he will turn up at the police station at all. This is going to reflect badly on the other driver, and yes, he can be arrested for doing that. Our Highway Code actually has tips on how to avoid accidents on the road, such as slowing down for that “crazy driver” even when we have the right of way. Because according this pantun in the Highway Code, we’re better off giving way than dead: “Here lies the body of Jonathan Gray, Who died maintaining his right of way, He was quite in right as he sped along, But he's just as dead as if he'd been wrong.” [READ MORE - 5 savage Malaysian road rules written into our Highway Code]"
"Hold the phone - here's the legal reason why the Low Yat ""thief"" was not guilty By now, everyone should be somewhat familiar with the story of the “Low Yat Phone Thief”, but here’s a quick refresher: On 11 July 2015, 22-year old Shahrul Anuar Abdul Aziz visited Techasia Boutique in Low Yat Plaza with a friend and checked out some phones. The salesman showed Shahrul a Lenovo smartphone and, as he turned around to take a free gift that went with the phone, Shahrul purportedly stole the phone and made a dash for it down the escalator. In the chase, Shahrul fell down the escalator and was caught by staff from the OPPO kiosk at the ground floor. Then 1 March 2018, the Court of Appeal discharged and acquitted Shahrul on technical grounds. In simple terms, the court let him go free. Putting aside the other stuff that resulted from the theft – such as the minor riot after his arrest – we’re left with the question of how and why the court decided to free him. What makes this interesting is that he was let go because of a technicality after he was originally found guilty. So let’s first look at what happened with... The court that found him guilty In all criminal trials, the prosecution presents their argument first (basically to argue guilt) before the defense does (basically to argue innocence). After the prosecution presented their evidence, the judge (Magistrate) told Shahrul to enter his defence (basically to defend himself) because she was convinced that the prosecution had established a prima facie case against him. Prima facie means “on the face of it” and it means that at first glance, there was enough to convict Shahrul. The judge then went on to explain that after evaluating the prosecution’s case, she was convinced that Shahrul was guilty and, if he remains silent instead of defending himself, she could convict him on the spot. “Oleh yang demikian, di akhir kes pendakwaan, setelah membuat penilaian maksimum ke atas kes pendakwaan, Mahkamah ini memutuskan bahawa Tertuduh telah melakukan kesalahan sepertimana pertuduhan dan wujud keterangan yang sewajarnya (reasonable reasons) Tertuduh untuk menyangkalnya. Seandainya Tertuduh bertindak berdiam diri, maka Mahkamah boleh terus mensabitkan Tertuduh dan menjatuhkan hukuman seperti peruntukan kesalahan pertuduhan.” - Magistrate Nur Aminahtul Mardiah Binti Md Nor, Magistrates Court Kuala Lumpur At the completion of the trial, the judge found that Shahrul failed to raise reasonable doubts against the prosecution’s case and because of that, he is found guilty beyond reasonable doubt. She then proceeded to convict Shahrul and sentenced him to 4 months in prison and RM1,000 fine. Shahrul then appealed to the High Court on the basis that the Magistrate had committed a misdirection of law but the High Court dismissed this appeal. We won’t dissect the High Court’s judgment but what’s important to this story is that, Shahrul appealed again to the Court of Appeal. The court that set him free On 1 March 2018, the Court of Appeal delivered their verdict and decided to release him. WAIT. If the first judge in the initial trial found him guilty, why did the Court of Appeal release him?? That’s because the Court of Appeal found that the earlier judge who found him guilty had committed a serious misdirection of law and this resulted in a miscarriage of justice (don’t worry, we will explain this later on). Many Malaysians were shook by the decision because it seemed like Shahrul’s guilt was evident and because it led to what eventually became known as the Low Yat riot – though it is important to note that Shahrul played no part in the riot; he was in police custody when it happened. This leaves us with several questions such as what is a technical ground? Can the courts let someone go on this ground even if they are sure he is guilty? To answer all these questions and more, we need to look at the core question of what is a “misdirection of law”? [READ MORE: Some Malaysians are released after getting arrested for a crime. Here's why] Why was he let go? A misdirection of law is literally the meaning of the word “misdirection”. To put it simply, it happens when the judge gives the “wrong instructions” or takes a “wrong turn” during a case. It’s kinda like navigating using a GPS – if the GPS messes up, it misdirects you and takes you miles away from where you actually want to be. In the Low Yat case, the misdirection that was claimed by Shahrul and his team was in a particular part of the Magistrate’s judgment that we quoted above. Here’s that same judgment again, with the relevant part highlighted: “...Mahkamah ini memutuskan bahawa Tertuduh telah melakukan kesalahan sepertimana pertuduhan dan wujud keterangan yang sewajarnya (reasonable reasons) Tertuduh untuk menyangkalnya...” - Magistrate Nur Aminahtul Mardiah Binti Md Nor, Magistrates Court Kuala Lumpur The crux (and the misdirection that Shahrul’s defence team claimed) was that the Magistrate had found Shahrul guilty at the end of the prosecution’s case, before he submitted his defence. Wait, so why can’t the judge find Shahrul guilty at the end of the prosecution’s case? This is related to a phrase that you hear all the time on TV: “guilty beyond reasonable doubt”. Aside from sounding cool, this phrase is also related to the standard of proof in criminal cases. Essentially, a person in a criminal case can only be found guilty IF the guilty has been proven beyond reasonable doubt. An interesting story in itself, the earlier case of Balachandran v PP clarified that guilt beyond reasonable doubt can happen in either of these two scenarios: At the end of the trial; after both the prosecution and defence have presented their cases and all the evidence has been considered At the end of the prosecution’s case (which can be called the midpoint of the trial); when the judge finds that there is a prima facie case and the accused remains silent (chooses to not defend himself) To see how guilt beyond a reasonable doubt links with the finding of a prima facie case, let’s look at one of the guidelines given by the judge in Pendakwa Raya v Mohd Radzi bin Abu Bakar. The guideline states that at the end of the prosecution’s case, the judge has to ask himself if he is willing to convict the accused if the accused chooses to remain silent when asked to enter his defence. If the answer is yes, then a prima facie case has been established. The misdirection of law that the Court of Appeal found in the judge’s judgment is that it seemed like she had already found Shahrul guilty before he even had a chance to defend himself. This is contrary to the law and this is why the Court of Appeal decided to let Shahrul go; on a technical reason. What happens after he is let go? Generally, if there is a misdirection of law, the court can actually order for the case to be re-tried. This is following section 60 of the Courts of Judicature Act 1964: “...may order a retrial or may remit the matter with the opinion of the Court of Appeal thereon to the trial court...” However, since the Court of Appeal decided to acquit and discharge Shahrul, there can no longer be a retrial. Aside from that, according to principles against double jeopardy, Shahrul can no longer be convicted of the same offence since he has been released. In other words, this is the final decision on the matter, and the case is closed. As the courts in Abou Sylla v PP explained, the courts will usually reject a conviction when there has been a misdirection. Only exceptional cases would result in a conviction despite the misdirection. Malaysians sometimes get mad whenever someone is set free even though there appears to be evidence that clearly shows their guilt. This is because like everything else, the law similarly has procedures that must be followed in order to ensure that everyone gets a fair trial; and when these procedures are not followed or if the law is misdirected, then the accused can be set free despite the evidence present. [READ MORE: Some Malaysians are released after getting arrested for a crime. Here's why]"
"Adakah penyembur lada (pepper spray) sah dari segi undang-undang? [This article is also available in English] Apabila kita sebagai rakyat Malaysia mula melihat laporan kes ragut & rompakan meningkat, reaksi spontan kita mungkin untuk mencari cara untuk melindungi diri. Agak melampau kalau kita duduk rumah tak nak keluar langsung, tetapi kalau bawak parang untuk mempertahankan diri pergi shopping pun tak masuk akal. (PERINGATAN: INI MENYALAHI UNDANG-UNDANG) Tetapi bagaimana dengan penyembur lada? Ianya bertujuan untuk melumpuhkan penjahat supaya kita ada masa untuk melarikan diri dengan selamat. Ia tidak melukai penjahat yang disembur, dan secara amnya bukan senjata yang membunuh, jadi tiada masalah untuk membawa penyembur lada bersama kita, bukan? Masalahnya, penyembur lada juga boleh disalahgunakan, seperti insiden di mana seorang cosplayer menyembur penyembur lada terhadap penggangu yang mengikutnya di salah satu konvensyen anime. Nyatalah bahawa penyembur lada ini bahaya apabila digunakan sebagai senjata penyamun juga! Kami sering mendapat soalan sama ada pengunaan penyembur lada ini adalah sah dari sisi undang-undang Malaysia atau tidak. Hal ini bergantung kepada beberapa faktor yang kita bincangkan di bawah. Terdapat pelbagai jenis penyembur lada di pasaran Penyembur-penyembur lada tidak dicipta secara pukul rata. Komposisi kimia pada penyembur lada anda mungkin menjadi faktor yang memutuskan sama ada ia sah untuk dibawa dari segi undang-undang atau tidak. Undang-undang yang berkaitan adalah Akta Barangan Hakisan & Letupan dan Senjata Merbahaya 1958 (CESOWA) “Senjata Merbahaya” adalah apa-apa barang yang boleh menyebabkan “kecederaan” sekiranya digunakan sebagai senjata. Maksud “kecederaan” yang ditakrifkan di bawah Kanun Keseksaan Seksyen 319 adalah: “Barangsiapa yang menyebabkan kesakitan, penyakit atau kelemahan pada tubuh badan dianggap sebagai kecederaan” – (Tiada versi BM rasmi, diterjemahkan oleh ASKLEGAL) Menurut Seksyen 6(1) CESOWA, adalah kesalahan untuk membawa senjata merbahaya di tempat awam tanpa sebab yang sah. Pesalah boleh dipenjarakan selama 5-10 tahun dan boleh dikenakan sebatan. Dah jelas? Haa, sekarang kami nak kongsikan 3 jenis semburan pertahanan diri di pasaran, yang anda boleh periksa sendiri pada label & pembungkusannya. CN (Fenasil Klorida) Semburan pertahanan diri ini diciptakan pada tahun 1960-an. Lebih dikenali sebagai ""mace"", ia adalah perengsa yang menyebabkan rasa pedih & menjatuhkan air mata. Masalahnya adalah bahan ini kurang efektif terhadap pemabuk, penghisap dadah, atau orang yang ganas/gila - senang cerita golongan yang kemungkinan besar perlu dikenakan semburan lada ini… CS (Orthochlorobenzalmalononitrile) Kalau tak faham kimia yang panjang tu tak apa, CS pada dasarnya adalah gas pemedih mata. Ia menyebabkan mata berair, dan membuatkan hidung dan mulut anda terasa seperti terbakar. Kalangan yang pernah kena gas di demonstrasi atau protes pernahlan mengalami rasa ini. Gas pemedih mata juga mempunyai kelemahan iaitu kurang berkesan terhadap orang di bawah pengaruh dadah, tidak siuman, atau ganas. OC (Oleoresin Capsicum) Ini adalah ""penyembur lada"" sebenar. Apabila disembur, anda akan mula batuk dan tercekik, berasa mual dan terbakar. Anda juga mungkin menjadi buta sementara waktu dan mengalami kesukaran bernafas. Penyembur lada ini berfungsi pada orang di bawah pengaruh dadah, gila, dan ganas - sesuai untuk penguatkuasaan undang-undang dan pertahananan diri. Jadi, semburan mana yang sah? Disebabkan semburan lada boleh menyebabkan ""kesakitan pada tubuh"", ini menunjukkan bahawa ia adalah ""senjata merbahaya"" dan oleh itu – tidak sah! Tetapi undang-undang di bawah Seksyen 6 CESOWA juga mempertimbangkan alasan anda membawa semburan lada. Seorang pembekal semburan lada pernah mengata bahawa menggunakan semburan lada untuk menyerang orang lain adalah jenayah. Dia juga mengata bahawa pemilik semburan lada perlu mendaftar diri dengan polis. Laman web PDRM juga menyatakan bahawa bukan sahaja perniagaan yang menjual semburan lada memerlukan lesen, pemilik semburan lada juga harus mendaftar untuk permit. Pendaftaran ini adalah wajib di bawah Akta Senjata 1960 kerana menurut undang-undang, semburan lada adalah ""senjata"", yang memerlukan permit untuk memiliki satu (ya, seperti senapang juga). Definisi ""senjata"" dalam Seksyen 2 termasuk: ""... apa-apa senjata yang direka atau disesuaikan atau yang boleh disesuaikan untuk mengeluarkan apa-apa cecair, gas atau benda lain yang berbahaya ..."" – diterjemahkan daripada Bahasa Inggeris oleh ASKLEGAL [BACA SELANJUTNYA – Apakah barangan yang boleh anda bawa untuk mempertahankan diri?] Undang-undang berkenaan senjata merbahaya telah digunakan secara tidak konsisten, kerana sesetengah kes jenayah melibatkan orang yang menyalahgunakan penyembur lada, tetapi mereka tidak didenda dengan membawa senjata yang merbahaya. Lain pula dengan kes cosplayer yang kami ceritakan tadi. Dia dikenakan denda kerana membawa senjata yang merbahaya di tempat awam. Ia mungkin kerana dia juga membawa sebilah pisau pada masa itu, tetapi penyembur lada yang dibawanya merupakan jenis lebih kuat yang sesuai digunakan pada beruang – semburan beruang (bear spray). Kandungan capsaicinoid (kimia utama dalam penyembur lada) dalam semburan beruang lebih tinggi daripada penyembur lada yang digunakan terhadap manusia. Kecuali anda seorang yang sering berurusan dengan beruang, anda barangkali tidak mempunyai alasan yang baik untuk membawa semburan beruang - yang menjadikannya satu kesalahan. Penyembur lada sah dibawakan, tetapi untuk keselamatan sahaja! Keselamatan adalah suata keutamaan bagi rakyat Malaysia, tapi kalau boleh kami memang tak nak langgar undang-undang ketika melindungi diri. Penyembur lada secara teknikalnya adalah sah di Malaysia, tetapi hanya apabila ia digunakan untuk mempertahankan diri. Sekiranya anda ingin memiliki penyembur lada, sebaik-baiknya semak dengan balai polis berdekatan anda sama ada anda perlu mendaftarkan diri untuk pemilikan mengikut rang undang-undang. Selain tu, pastikan je lah tak tersilap beli bear spray!"
"5 sources of income that are tax free in Malaysia Note: This article was originally written in March 2018. There are only a few things that are certain in life, and one of them is taxes. While most of us don’t look forward to tax season (unless you’re with the tax department) we can at least look forward to the silver linings that are tax reliefs and tax exemptions. [READ MORE - 5 common Malaysian tax offences you don’t want to accidentally commit] Most Malaysians are familiar with tax reliefs, which you can file as income that won’t get taxed because you spent them on certain types of expenses. But you might not have known that there are also “tax exemptions” in the law - which are basically types of income that you pay 0% tax on. You can actually find a complete list of tax exemptions in Schedule 6 of the Income Tax Act 1967 (you may have to use Ctrl/Cmd + F to find it). While some of these exemptions won’t apply to you at all, such as being Malaysian Royalty, and being a local council. Here are 5 tax exempted incomes that can easily apply to you. 1. Retirement Benefits Even when a person retires and doesn’t have income from a job anymore, their pension and even gratuity payments are still considered part of their income. It feels really bad if you still have to pay income tax after retiring, but good news - Malaysians don’t pay any tax on that. Firstly, pensions paid to people after reaching the age of retirement are exempt from tax under Schedule 6, Paragraph 30 of the Income Tax Act 1967. It’ll also apply when the pension is paid due to retirement from ill-health, or if the pension is paid under any other approved fund (even if you have not reached the legal age of retirement). One limitation of this law is for some people have multiple pension payouts, only their highest pension paid will be exempted from tax. Next up you have money received as a gratuity from your employer when you retire, which is also tax exempt under Paragraph 25 of Schedule 6. This is that one-time payout your parents or maybe you yourself look to get from your employer upon retirement. But maybe most surprising of all is that severance packages are also exempted from income tax. They’re sometimes known as VSS-s (Voluntary Separation Schemes) and are paid by employers to employees as compensation for losing their job out of nowhere. This paid sum is exempted from tax if it was due to ill-health, or if the amount does not exceed RM10,000 per year of service with the employer. While you might be disappointed that you can’t benefit from these incomes until retirement, you can still take advantage of the RM6,000 tax relief you get under Section 49 of the Income Tax Act - which covers insurance premiums and your EPF contributions. Think of it as investing RM6,000 for your future self with the bonus of getting a sweet tax exemption. 2. Some Employment Benefits You might already know this, but under Section 13(1) of the Income Tax Act 1967, your employment benefits are also considered part of your gross income. As stated in the law: Section 13(1) - Income Tax Act 1967 (in part) 13. (1) Gross income of an employee in respect of gains or profits from an employment includes— ...(b) an amount equal to the value of the use or enjoyment by the employee of any benefit or amenity (not being a benefit or amenity convertible into money) provided for the employee by or on behalf of his employer, excluding... Normally, you might have to pay tax on those benefits as well, but this is where there are some exceptions. Section 13(1)(b) states that the following are not considered part of your income: Medical and dental benefits Child care benefits 3 company trips within Malaysia 1 company trip outside Malaysia for up to RM3,000 Any benefits used only for the performance of your job duties Accommodation provided by your employer Anything not covered by the above list, or exceeds the limits of the list will be considered part of your income and will be taxable as normal. 3. Royalty Payments If there was any form of encouragement that the law gave to aspiring creative people, it would be this law. A huge amount of the income that comes from royalties is tax exempt in Malaysia. If you’ve not heard of royalties, they are basically the fees others pay to use an original creation of yours. This tax exemption applies for individuals who are Malaysian citizens, and it’s divided into four main categories: RM10,000 of income from royalties of artistic works (excluding paintings), recording discs, or tapes. RM12,000 for payment received for translations of books or literary work done for the Ministry of Education, Ministry of Higher Education, or the Attorney General’s Chambers. (doesn’t apply if the translations were done as part of official duties). RM20,000 of income from royalties for any literary work or original painting. RM20,000 of income from royalties for musical compositions. Any income exceeding the amounts above will be taxable as personal income. If you have that book you’ve been meaning to write for a long time, this law is a pretty good reason to finish writing it! 4. Scholarships Even scholarships are considered income, but they’re also exempt from taxes. As stated in Paragraph 24 of Schedule 6 in the Income Tax Act, any money paid as a scholarship or other similar grant or allowance to someone is exempt from income tax. There’s actually no age requirement for someone to start paying income tax, so if this exemption didn’t exist, students would have to pay tax on scholarships and bursaries that they receive. Take the example of Malaysian Lara Alana who was 3 years old in 2017 when she started earning enough from her reality TV show to pay income taxes. On top of that, any grants that scientists and professors receive for their research are not taxed either. You could take the tax exemption as a sort of “nod of approval” from the government for new discoveries to be made through the scholarships. 5. Bank interest & certain dividends Investments can really pay off if done correctly. A savings account is probably the most basic form of investment we can have, and yes, the interest we earn from our bank accounts is tax-free. Specifically, any interest earned from the following institutions is tax-free. A bank or finance company licensed under the Banking and Financial Institutions Act 1989 A bank licensed under the Islamic Banking Act 1983 A development financial institution under the Development Financial Institutions Act 2002 The Lembaga Tabung Haji The Malaysia Building Society Berhad The Borneo Housing Finance Berhad If you invest in financial instruments like mutual funds and company shares, your dividend payments might also be exempt from tax. The following 4 types will qualify: Dividends from exempt accounts of companies Dividends from co-operative societies (such as the Koperasi Polis Diraja Malaysia Berhad) Dividends from units trusts approved by the Minister of Finance (like Amanah Saham Bumiputera) Dividends from unit trusts approved by the Minister of Finance where 90% or more of their investment is in government securities (securities like sovereign bonds) Perhaps the most notable form of tax-free dividend from companies is from Real Estate Investment Trusts (REITs) or Property Trust Funds (PTFs). Under Section 61A(1) of the Income Tax Act, these two types of companies do not pay tax as long as they pay out 90% of their profits for the year as dividends to their shareholders - and those shareholders in turn don’t have to declare this income for tax purposes. Tax benefits are sometimes used to encourage certain government objectives Governments commonly tweak tax laws to encourage different types of industries. For example, the Malaysian government was offering tax breaks on hybrid cars for a while before they ended in March 2017. If you’re looking to switch industries or enter new fields of work, you can actually take the current tax laws as an encouragement of which fields to consider entering. As an overall observation from the 5 laws above, people who create original works through creativity and research are quite handsomely rewarded by our current tax system. If you have a company, a more relevant example to you might be that any profit paid to partners in a limited liability partnership (LLP) is tax exempt as well (Paragraph 12C of Schedule 6, Income Tax Act), making the LLP an attractive business form to use. [READ MORE - What company type should I use for my business in Malaysia?]"
"5 reasons that prove the authors of the Malaysian Highway Code had absolutely no chill If you’ve ever tried reading any act of law, you’d know that it’s drier than a stale biscuit in the Sahara desert. That’s what we thought too, until we started flipping though a compilation of the Malaysian Road Transport Rules. This compilation included a copy of the Malaysian Highway Code with rules that are pretty funny and sometimes downright savage. Unfortunately, you won’t find them in the online version of the Malaysian Highway Code – as that’s slightly different from the printed version – so we’ve reproduced them here for your reading pleasure. Just for reference, the Malaysian Highway Code is what our “undang”test (for driver’s licenses) is based on, and is actually enforceable under section 63 of the Road Transport Act 1987, plus our courts refer to it in some cases involving traffic violations. That’s how we know it’s legit. Because it is legit, it makes the way certain rules within it are phrased even funnier, like the ones below 1. The Highway Code writers know what you do with your free hand ( ͡° ͜ʖ ͡°) Steering with one hand is extremely common among car drivers. While it may look cool, it’s also considered to be more dangerous compared to having both hands on the wheel because you have less control of the car. That’s why under the “Discourtesy” section of the Code, steering with one hand is mentioned. But also, what do you do with your other hand? The Malaysian Highway Code goes the extra mile to provide some possibilities: 11. Discourtesy by drivers is marked not only by speeding and cutting in and out of traffic. Other actions that constitute discourtesy are: Failure to give proper signals in due time; Hooting unnecessarily; Parking on a bend or well away from the side of the road; Steering with one hand, the other holding the roof – or a girl; Driving in the middle of the road when others wish to overtake; Driving through mud and puddles at speed and splashing pedestrians. Was the practice of driving one-handed and holding a girl with the free arm so prevalent as to warrant this level of specificity? We’ll never know. What we do know is that if you steer your car with one hand and get into an accident, that can land you in legal hot water under Sections 42 and 43 the Road Transport Act 1987 for reckless or inconsiderate driving. 2. When there’s a wheel, there’s a (right of) way In driving, the right of way is a system that determines who should give way or stop in a situation where traffic merges, such as in junctions. However, there may be some people who take their right of way a little too seriously, even to the point of willingly causing an accident. Take this simple example: Ah Fook is at a traffic light and the lights turn green. He sees a car turning from the opposite direction but he still moves forward because it’s his right of way and – predictably – crashes into the car. So although Ah Fook was technically correct, the accident could have been easily avoided if he had just waited. In some cases (perhaps not in the example above), even though you were technically correct, this manner of driving can be considered dangerous, reckless, careless and/or inconsiderate under sections 42 and 43 of the Road Transport Act 1986. Of course, it goes without saying that you could also end up with more serious consequences such as injuries or death. And so, the Highway Code used a poem to remind us of our own mortality: 25. A driver must stop, if by doing so he can avoid a collision or risk of collision. There is no sense in being right, if it concludes in lateness, damage, death or injury. “Here lies the body of Jonathan Gray, Who died maintaining his right of way, He was quite in right as he sped along, But he's just as dead as if he'd been wrong.” We couldn’t make this up even if we wanted to. 3. They kept it real when advising cyclists Section 54 of the Road Transport Act 1987 specify that laws against dangerous driving, careless driving, and even drunk driving also apply to cyclists. It would make sense then that the Highway Code has a section just for bicyclists. The online copy of the Code provides a sobering reminder to cyclists: 55. Maintain a safe distance with all other road users, in case of sudden changes in their direction or speed. Remember you are the road user with the second lowest speed. Make sure you allow for reaction time and time to get far enough out of the way to avoid a collision. Of course some cyclists may not be happy about only being faster than someone who’s walking, and might want to bump themselves up to third slowest by hunching over the bicycle or doing the “Superman”. So in the very next point, the Code provides a reminder based on simple Physics: 56. Keep your head up: The habit of keeping your head low may reduce wind resistance, but in traffic it’s likely to produce a cracked skull. 4. The writers must have spent a lot of time around aunties Gossiping isn’t usually punishable by law unless someone sues you for defamation (damaging the good reputation of someone, otherwise known as slander or libel) but that’s a whole other can of worms. [READ MORE: Can you get in trouble for insulting someone?] Sometimes, you might have a juicy bit of info that you must share, even if you’re in the middle of the street. If that’s the case, the Highway Code has something to say about that: 82. If you must stand and gossip, do so away from all traffic, including foot traffic. It is discourteous to force others to walk around you, and dangerous to everyone to force them onto the road. So the reasoning is that if you stand around talking to someone on the road you can be mowed down by oncoming traffic, and if you do it on the sidewalk, you might be forcing other people to bypass you by going onto the road. [READ MORE: If you hit a jaywalker in Malaysia, who’s at fault?] 5. If everyone did this, we’ll all be safe drivers Many accidents happen when vehicles are turning at junctions. It’s not surprising since there are various elements that can contribute to these accidents: blind angles, vehicles moving at different speeds, confusing rights of way. Just the act of turning at a junction isn’t illegal, but turning in a dangerous, reckless, inconsiderate or careless manner is (according to sections 42 and 43 of the Road Transport Act 1987). When there’s a police officer controlling a junction, it’s all good. They put up their nice gloved hand to stop cars and wave for them to go. What if there’s no policeman controlling a junction? Just imagine one. The simplest solutions are the greatest. 18. When turning left or right, drivers must always give way to through traffic, including pedestrian traffic. When turning right on a police-controlled crossing, go around the policeman into the correct line of traffic. If there is no policeman then imagine there is one and make the turn as shown in the sketch. Maybe it’s best for all of us to just imagine a police officer watching us do our thing daily, the world would be a much safer place. That’s all we have for today, folks. If all Malaysian laws were written like this, drivers would probably abide traffic laws more and lawyers would probably be a happier bunch."
"Where do the Syariah courts in Malaysia get their LEGAL power from? You might have came across the case of Jawi’s raid on Borders back in 2012, or the challenge on the issue of cross-dressing in Negeri Sembilan in 2014, and the most recent example is through Indira Gandhi’s case, the mother who fought to challenge the legality of her children’s conversion to Islam by her ex-husband. Given all these cases, it’s easy to mistake (and many do) that Malaysia has two court systems; one for Muslims and the other for non-Muslims. The courts in Malaysia are commonly referred to as the civil courts and the Syariah courts. Further to that, many also think that the Syariah courts have the ultimate jurisdiction over all Muslims and Islamic laws. With these two common conceptions, one common question we get in our comments’ section is – what happens when a non-Muslim and Muslim go to court with each other? So regardless of whether it’s intended to be a troll question or not, we’re gonna answer it. First, let’s take a look at how Malaysia’s court system works and how they were set up. Syariah courts are considered inferior courts…BUT NOT IN THE WAY YOU THINK The reason why Muslims are given “special courts” and specific areas where Islamic jurisprudence would be applied has a historical basis. Despite the colonisation of the British in Malaya, the British never intended to interfere with the powers of the Malay rulers on matters of religion and Malay custom. This practice of Muslims having their own “courts” stayed on even after independence. But if we list down Malaysia’s current court system from the lowest to the highest, this is how it would look like: Magistrates Court – Sessions Court – High Court – Court of Appeal – Federal Court So…....where is the Syariah court? The court system (whether civil or criminal) in Malaysia was established by Article 121 of the Federal Constitution. This Article expressly created only 3 courts; which are the High Court, Court of Appeal, and Federal Court. Aside from that, it also empowers federal law to make inferior courts: “...and such inferior courts as may be provided by federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law...” This means that any court (which is not the High Court, Court of Appeal, or Federal Court) which is established by any federal or state law is known as an inferior court. This is why the Sessions Court and Magistrates Court which were established by the Subordinate Courts Act 1948 are known as inferior courts and the High Court has the power to supervise these courts. Now that we understand how the civil court system is like in Malaysia, let’s move on to how the Syariah courts were established and what areas of law they can preside over. The explanation to this is two-fold: Article 74 and the Ninth Schedule of the Constitution – sets out that the establishment of Syariah courts and what areas of law they can hear fall under the regulation of each individual State. We won’t list down the areas of law but to put it in a nutshell, there are 26 areas and they are contained to matters such as inheritance, marriage, the establishment of mosques, and so on. Aside from that, the Syariah courts only have jurisdiction over Muslims. Case law, specifically the cases of Latifah Mat Zin v Rosmawati bte Sharibun & Anor and Dato’ Kader Shah bin Tun Sulaiman v Datin Fauziah binti Haron The judge in Dato’ Kader Shah Bin Tun Sulaiman said the following: “...where there is an issue of competing jurisdiction between the civil court and the Syariah Court, the proceedings before the High Court of Malaya or the High Court of Sabah and Sarawak must take precedence over the Syariah Courts as the High Court of Malaya and the High Court of Sabah and Sarawak are superior civil courts, being High Courts duly constituted under the Federal Constitution. Syariah Courts are mere state courts established by state law, and under the Federal Constitution these state courts do not enjoy the same status and powers as the High Courts established under the Courts of Judicature Act 1964. Indeed, the High Courts have supervisory powers over Syariah Courts just as the High Courts have supervisory powers over other inferior tribunals like, for instance, the Industrial Court.” – Mohd Hishamudin J, Dato’ Kader Shah Bin Tun Sulaiman v Datin Fauziah binti Haron, 2008 [emphasis added] To break down the long paragraph above, it basically means these 4 points: Syariah courts are inferior courts Syariah courts don’t have the same status and power like the High Court Since they are inferior courts, the High Court will always take precedence over any Syariah court The High Court has the power to supervise Syariah Courts Now that where the Syariah court stands in the whole legal system has been established, here’s comes the big question… What happens when a non-Muslim and a Muslim have a legal tussle? The most famous example of this would be the conversion cases such as Indira Gandhi’s case, where Indira (a Hindu) married her Hindu husband. Some years into the marriage, her Hindu husband converted into Islam and left their marital home with their youngest daughter, while converting all 3 of their children into Islam without Indira’s knowledge or approval. At the start of the legal battle, there was a clash between the Syariah court and the Ipoh High Court because while the Ipoh High Court granted Indira full custody of her children, the Syariah court gave custody of the children to her now ex-husband. Aside from this, there were many other issues that were put up to the court and among other issues that were discussed by the Federal Court, the court said that if one party to the case is non-Muslim, the case cannot be brought before the Syariah courts even if it falls within the 26 areas that the Syariah courts are allowed to judge on. This is because it would be unfair to the non-Muslim party who cannot appear before the Syariah court to defend himself as non-Muslims have no locus standi (right to appear) in Syariah courts. On the flip side, if both parties to the case are Muslim but the issue at hand doesn’t fall within the 26 areas relegated to Syariah courts, the matter similarly cannot be brought before the Syariah courts. This is because the Syariah courts inherently have no jurisdiction to hear and decide on matters beyond the provided 26 areas. To summarise it for you guys, it means 3 things: If a non-Muslim and Muslim have a legal battle, the case must be brought before the civil courts If 2 Muslims have a legal battle and the issue falls within the 26 areas, it must be brought before the Syariah courts If 2 Muslims have a legal battle and the issue falls outside the 26 areas, it must be brought before the civil courts Aside from looking at whether it falls within the 26 areas, the moment the issue revolves around an interpretation of the law or constitutional issues, the civil courts “take over” the jurisdiction. This is because Islamic law is only confined to personal matters and not constitutional issues as explained in the case of Che Omar Che Soh v Public Prosecutor. This point was further explained by the Federal Court in Indira Gandhi’s case: “...if the relief sought by the plaintiff is in the nature of the “inherent powers” of the civil court (for example judicial review) or if it involves constitutional issues or interpretation of the law, then the civil courts will be seised with jurisdiction to determine the issue, regardless of the subject matter and especially if it comes within the scope and ambit of judicial powers as outlined above...” – page 40, Federal Court, Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam, Pendaftar Mualaf and Kerajaan Negeri Perak, 29 January 2018 . The preservation of the civil courts’ constitutionality leads to a very important point – the effect of Article 121 (1A) of the Constitution. This is a biggie because this Article has been used to argue that there are dual court systems in Malaysia and that it overrides the jurisdiction of the civil courts when it comes to Islamic law. Article 121 (1A) states that: The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. If you read it at face value, it can be taken to mean that when an issue falls under the 26 areas, the civil courts (High Court, Court of Appeal, Federal Court) will have no jurisdiction over it. However, the Federal Court (in the Indira Ghandi trial) stated that this was actually the opposite – that Article 121 (1A) was introduced to avoid any conflict between the decisions of the civil courts and Syariah courts. They came to this conclusion based on the judgement of the President of the Court of Appeal in an earlier case (Viran) “...the approach that Article 121(1A) excludes or oust the jurisdiction of civil courts...is flawed. Article 121(1A) does not constitute a blanket exclusion of the jurisdiction of the civil courts whenever a matter relating to Islamic law arises. The inherent judicial power of civil courts in relation to judicial review and questions of constitutional or statutory interpretation is not and cannot be removed by the insertion of clause (1A)...” – page 57, Federal Court, Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam, Pendaftar Mualaf and Kerajaan Negeri Perak, 29 January 2018 . At the end of the day, this means that… Malaysia has only one court system The idea that Syariah courts are one system and the civil courts are another system is a misconception as showed above. Aside from that, the civil courts retain their jurisdiction regardless of the subject matter and especially if the matter relates to a constitutional issue or an interpretation of the law. This is why the cases that involved Islamic law could still be appealed by Muslims and non-Muslims alike to our highest court, the Federal Court. For example, Indira Gandhi’s appeal to the Federal Court, the bin Abdullah appeal to the Federal Court, and so on. Article 3 still preserves Islam as the religion of Malaysia but as explained by our founding father, Tunku Abdul Rahman and the government of Malaya back in 1957, Malaysia remains a secular state (this means that our government is officially neutral in terms of religion): “There has been included in the proposed Federation Constitution a declaration that Islam is the religion of the Federation. This will in no way affect the present position of the Federation as a secular State, and every person will have the right to profess and practise his own religion and the right to propagate his religion, though this last right is subject to any restrictions imposed by State law relating to the propagation of any religious doctrine or belief among persons professing the Muslim religion.” – White Paper, Federation of Malaya, 1957 as quoted from The Making of the Malayan Constitution [emphasis added]"
"In Malaysia, ""insanity"" is not the best excuse for a crime. Here's why. Imagine you have a colleague at work who’s super annoying. This guy’s the worst, right? So one day you happened to watch Primal Fear on HBO and think to yourself, “Hey, I can kill him and pretend to be insane!” Now, will that really work in real life, or at least in Malaysia? As it turns out, Malaysian law does recognize insanity as a defense in court, not just for murder but for other crimes as well. We’ll get into the details of these later, but let’s first look into how this law came about... In 1843, a crazy dude tried to assassinate the British Prime Minister As with many of our laws, Malaysia got its rules on the defence of insanity from an English landmark case of M’Naghten (pronounced McNuggets – really!). Long story short, this guy Daniel M’Naghten tried to assassinate the then Prime Minister of England, Robert Peel in 1843. He didn’t manage to do that, but instead murdered the secretary to the Prime Minister, Edward Drummond, by “mistake”. In court, McNuggets claimed he was suffering from persecutory delusions (which means he kept feeling that something bad was going to happen to him) and felt compelled to assassinate the Prime Minister. Medical experts determined that his delusions broke down his sense of morals and drastically reduced his sense of self-control. The jury eventually came to the conclusion that he couldn’t be held responsible for the murder he committed, and he was acquitted of all charges. [READ MORE How the jury system used to work in Malaysia before it was abolished] Going back to the rules, the case states: that every man is to be presumed to be sane, and ... that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong. Leaving out the specifics, what the rules came down to was: If the accused was insane at the time the crime was committed, they can’t be guilty of the crime. Of course, there is more to the rules in M’Naghten that just that, but that forms the basis for what’s called an “insanity plea” in Malaysia, except... “Unsoundness of mind” is the legal term for insanity in Malaysia What we didn’t take from the UK was the word “insanity”. We instead called it “unsoundness of mind”, because it obviously sounds more classy. But what does “unsoundness of mind” itself actually mean? There’s no special definition for unsoundness of mind itself because the courts determine whether the accused is unsound of mind/insane. Of course, the courts will take into account medical reports and opinions from medical experts, but the final decision lies with them. For the sake of convenience, we’re gonna refer to unsoundness of mind as insanity. Since it’s a defence to a crime, the accused and/or their lawyer has to raise it in court. They can’t wait for the court to realize that they’re insane. It’s also the accused and/or the accused’s lawyer’s job to actually try to prove said insanity. It doesn’t make sense for the accused to claim: “Hey, I’m crazy, so I can’t be held responsible for the crime, but YOU have to prove that I’m crazy,”. This criminal defence is provided under section 84 of the Penal Code: 84. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. The TL;DR of this is that: At the time crime was committed, the accused was insane The condition impaired the accused The impairment was so much so that the accused didn’t know the nature of his act (for example they might not even know they were holding a knife or a gun), didn’t know that what they were doing was wrong, and didn’t know that what they were doing was against the law Then there’s the issue of going to court. If the accused is sane, there’s no problem since they are coherent enough to comprehend the trial proceedings. If they are insane from the start, they are then sent to a psychiatric institution for evaluation. These procedures are given under section 342 of the Criminal Procedure Code 2012. If indeed found to be unable to stand trial after evaluation, can, depending on the severity of the crime: If the offence is bailable (usually not severe crimes), the courts may release the accused and makes sure they get proper care and are unable to harm themselves or others If the offence in non-bailable (usually more severe crimes), the courts may seek the Yang di-Pertuan Agong for Federal Territorries, or Sultan or Yang di-Pertua of State, in respect of the state where the trial is held, and the Ruler may order the accused to be confined to a psychiatric hospital It’s important to remember here that section 342 to 344 pertaining to fitness to plead (whether they’re mentally fit to stand trial) is not a defence, and a Judge or Magistrate may make the orders under these sections to send someone to a psych ward. But you don’t need to be in a straitjacket to be considered “insane” Many people have the impression that “insanity” is that the typical insane person exhibits the symptoms of visual or auditory hallucinations (seeing or hearing things that aren’t there, talking to invisible people), and ranting and raving at people. These are classic stereotypes that can be obviously observed, but there are also situations where a person could have committed a crime because of a medical condition and not remembered it. Automatism causes a person to act out in an involuntary and/or unconscious manner and is classified under Section 84’s insanity defence. This is especially apparent when people say they “black-out” when they were committing the crime. For example, in the case of Sinnasamy v PP, Sinnasamy claimed that he murdered his daughter by accident when he was having an epileptic episode. Doctors in this case unanimously agreed that a person is not conscious during an epileptic attack, and thus would satisfy section 84’s requirements. Another example would be the case of Kenneth Lee Fook Mun, who shot and killed a lady he didn’t know at a petrol station. He claimed that his hypoglycemia (low blood sugar) caused him to lose consciousness, and that he killed the lady while in this state. In both cases, the argument of automatism was brought up as a defence in court but the outcome wasn’t exactly favorable for Sinnasamy and Kenneth, because... Yes, you can claim that you’re insane, but it’s not easy to succeed Realistically, the defence of insanity can be raised for any crime that requires mens rea (the intention and knowledge that you’re committing a crime), including but not limited to: assault, causing a traffic accident and public nuisance. In the English case of Hill v Baxter, the defendant (Baxter) claimed that he could not remember anything between an early point of the journey till he met with an accident. Baxter was found guilty of causing the accident, and his defence of automatism failed because he was found to be conscious during the accident. The court said that automatism is still a valid criminal defence even though it didn’t work for Baxter’s case. So, this kind of hints at what happened in the cases of Sinnasamy and Kenneth mentioned earlier – they were found guilty of their respective crimes despite their defense being valid in the eyes of the law. In Sinnasamy’s case, despite actually having epilepsy, the depth and tracks of the wounds on the murder victim revealed that Sinnasamy had to be conscious at the time of the murder to have inflicted such wounds; while in Kenneth’s case, despite actually suffering from hypoglycemia, the court also determined that he was in control of his actions when he shot the woman. So long story short, while you CAN use insanity as a plea in court, it’s not all that easy to succeed in this defence. Crazy huh?"
"5 common Malaysian tax offences you don’t want to accidentally commit There were news reports from 2017 that a lot of Malaysian celebrities were not paying their income taxes. This is despite them earning millions of ringgit, and the tax authorities were investigating them to take further action. Whether you’re a hotshot celebrity or a regular citizen, evading tax is a big deal in many countries. It’s one of the last things you want to get caught for because the penalties can quite literally destroy you financially. The details of tax laws can change from year to year, and you don’t want a government official knocking on your door years later claiming you didn’t do what you were supposed to. You can avoid such issues by simply contacting your nearest Lembaga Hasil Dalaman Negeri (LHDN) branch to clarify anything you don’t fully understand. But to help you get started on that, here are 5 common tax offences in Malaysia and how to avoid them. 1. Giving people (bad) tax advice If a friend or family member is asking you for tax advice that you’re not sure of the answers to, you might want to just direct them to the LHDN, or a qualified professional if their taxes are complex. Section 114(1A) makes it an offence for a person to advise another person on tax if it results in them underdeclaring their taxes. Unless you can prove that you took reasonable care to make sure that your advice was solid and accurate, you could be fined RM200-RM20,000 and/or jailed for up to 3 years. Section 114(1A) - Income Tax Act 1967 (in part) “Any person who assists in, or advises with respect to, the preparation of any return where the return results in an understatement of the liability for tax of another person shall, unless he satisfies the court that the assistance or advice was given with reasonable care, be guilty of an offence…” This law actually applies more to professionals who deal with tax such as accountants and tax lawyers, but if you’re telling your friend to leave their freelance income out of their tax return then you could be scooped up under this law. 2. Not submitting your tax return form You might already know that you need to submit your tax return to the LHDN by 30th April each year (30th June for those who carry out a business). This is written in Section 77(1) of the Income Tax Act 1967. But if you don’t earn enough to be taxed, should you still submit your tax returns? To set aside your concerns, the answer is that you only need to file a return if you have income that can be taxed (“chargeable income”). So yes, if you’ve never filed a tax return before, and you don’t earn enough to be taxed, you’re not required to submit your tax return. If you’ve already been filing returns, then you should continue doing so even if you’re not paying any tax, or if you took a paycut and don’t earn enough to pay tax. This is so you don’t suddenly fall off the grid, which could put you in a high risk profile for tax evasion. And that could make you a candidate for a tax audit to verify your tax returns. According to LHDN, you can be audited for up to 5 years of assessment, and there is no time limit on the audit if there is fraud or tax evasion, so you’ll want to make sure your tax accounts are in order. LHDN has a list of tax reliefs here which you can use to calculate your chargeable income, and there are also guides like this one from RinggitPlus which guide you through your tax calculations. There are a number of tax reliefs you might qualify for, so your chargeable income might be a lot lower than you think. 3. Lying about how much you earn This is a pretty straightforward tax offence - you’re evading tax by underdeclaring how much you earn. Section 113(1) of the Income Tax Act states that: “(1) Any person who— (a) makes an incorrect return by omitting or understating any income of which he is required by this Act to make a return on behalf of himself or another person; or (b) gives any incorrect information in relation to any matter affecting his own chargeability to tax or the chargeability to tax of any other person...” Unless you made an honest mistake, giving incorrect information about your income can earn you RM1,000 to RM10,000 in fines plus 200% of the undercharged tax. You can also be asked to pay just the undercharged amount if no criminal proceedings are taken against you, but why take the chances, right? There’s a common misconception that full time freelancers don’t have to pay tax or declare their income. But in fact, yes they do. They are technically self-employed and still pay tax under our laws whether or not they’ve set up a business for themselves. Freelancers may enjoy different tax laws such as a lower rate for any royalties they earn, and any income they receive working overseas is 100% exempt from Malaysian income tax (we’ll cover more exemptions in a future article). For more information on how freelancers should file their taxes, check out this article by RinggitPlus or contact your local LHDN branch for more information. 4. Not paying your taxes An obvious tax offence but one worth mentioning because you can be barred from leaving the country for it. Under Section 114 of the Income Tax Act 1967, evading taxes under any of the listed methods is an offence punishable by a fine of RM1,000 to RM20,000 in addition to 300% of the tax you tried to avoid paying. As for stopping you from setting foot outside Malaysia, under Section 104, the Director General of the LHDN can also issue a certificate to any Commissioner of Police or Director of Immigration with your details and the details of any taxes you owe - and you can be prevented from leaving Malaysia until all your tax debts have been settled. If this certificate has been issued, it’s a crime to try and leave Malaysia without paying your taxes off under Section 115, which carries a punishment of RM200 to RM20,000 in fines, and/or up to 6 months in jail. Apart from the extreme case of outright tax evasion above, you’ll want to make sure you pay your taxes on time to avoid penalty charges (30th April for non-business income and 30th June for business income). Section 103(1) says that any tax due should be paid on time whether or not you are appealing against the tax calculations (if there is a dispute). Section 103(3) goes on to say that the unpaid amount on the due date will be charged an extra 10%. On top of that, if that increased tax is not settled within 60 days, you’ll get another 5% slapped on according to Section 103(4). But let’s say you’re having trouble paying that tax off on time, you can actually request to pay your taxes by installment which is allowed under Section 107B. Contact your LHDN branch where you physical file is maintained to file an appeal. You should do this as soon as you can because a late payment penalty will still be imposed if you don’t make the required payment on time. 5. Not keeping relevant documents for income tax The law actually puts a duty on us to keep documents that affect our chargeable income. Section 82A(1) and (2) of the Income Tax Act actually require us to keep those documents for at least 7 years, and it applies whether or not we’re paying taxes - at the very least, you’re keeping proof that your chargeable income is not high enough to be taxed. These documents are defined as your statements of income and expenditure, as well as any invoices, vouchers, receipts, and any other documents that can verify the details of your tax returns. Section 82A(4) requires you to keep any electronic records in a readily accessible format and convertible to writing (basically if you can print it - it’s fine); and you should also keep the hard copy of any manual form documents you store electronically (you might want to make photocopies of them as well since the ink fades over time). Not keeping this 7 year paper record is a recognized criminal offence under Section 119A, which can result in a fine of RM300-RM10,000 and/or up to 1 year in jail. You might want to just keep your documents for as long as possible just in case you made a mistake somewhere down the line. Because under Section 122, certain tax offences can be pursued for up to 12 years, and for some other offences, there might not be a time limit for how far in the future the tax officials can come after you. If that scenario really happens, at least you’ll have a way to show you made an honest mistake. There are a lot of tax reliefs for the Malaysian citizen which will reduce the amount of tax you’re liable to pay. File for the categories you’re eligible for that year, and hold on to the receipts as proof. If one thing is certain, it’s taxes Whatever the country you live in, there’s always taxes to pay to help keep the government running. Income taxes in Malaysia are actually structured as a progressive system. This means that only income above certain numbers are taxed at a higher rate, which makes it a lot more flexible than a flat bracket rate. To illustrate, Malaysians pay 0% tax on the first RM5,000 they earn for the year (NOT per month), 1% on the next RM15,000 they earn, and 5% on the next RM15,000, and so on. Again, if you have any burning questions about tax in Malaysia, contact the LHDN and they’ll help you out."
"If your dog bites a robber in Malaysia, can you get sued or taken to jail?  Just picture this: You are sleeping peacefully one night, knowing your loyal four-legged friend, Fluffy, is keeping an ever-vigilant eye on your property, when suddenly, you hear a commotion outside. Lo and behold, you see Fluffy with a man’s arms firmly clasped between his jaws. The man is a stranger and definitely has no business being on your property this late at night. So, you promptly call the police and they arrive to take the culprit away. But just as he’s shoved into the back of the police car, he shouts over to you, “I’m going to sue you for this! You’ll be hearing from my lawyer!” You suddenly find yourself stricken with a sense of panic. You vaguely recall the burglar’s arm bleeding as he was dragged away so your mind starts racing – “Can he REALLY sue me? Did I break any laws? WILL I GO TO JAIL?!” Well, so here’s the long and short of it: You definitely are allowed to defend yourself, your family and your property, but only if you exert nothing more than “reasonable force”. What is deemed “reasonable” is dependent on the facts surrounding the situation. Section 96, 97(b) and 99 of the Penal Code (in part): 99(4). The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. This certainly brings to mind the recent news of homeowners getting into trouble with the law when housebreakers wound up dead or seriously injured as a result of getting into scuffles with the homeowners trying to prevent intruders from escaping. [READ MORE: Why do some Malaysians get arrested for killing robbers in self defense?] Would it be the same, then, when a dog inflicts the injuries? Whether the injuries were caused by a dog or by the homeowners themselves, the homeowners will need to go through the usual process of making proper police reports regarding the incident and the police will then initiate an investigation. But first, is your dog licensed? The points covered in this article will be based on the assumption that your doggo has the proper permits and license. This is because having an unlicensed dog or an illegal breed of one may get you and your pet in trouble – which we won’t be covering here. As a general rule of thumb, as long as you comply with the regulations under the relevant municipal council bylaws (depending on where you’re staying), you should be allowed to keep dogs on your premises. For instance, the Undang-undang Kecil Perlesenan Anjing dan Rumah Pembiakan Anjing (Wilayah Persekutuan Kuala Lumpur) 1991 (Pindaan) 2011 (“UUK 2011”) provides the conditions and requirements needed to be complied with by residents of Kuala Lumpur who intend to rear dogs, along with the list of restricted and banned dog breeds. So, can you get in trouble if your dog bites a burglar? Let’s take a step back away from the robber scenario and see this from a general perspective – how responsible you are for the safety of anyone who enters your house. Depending on identity of the person who gets bitten, the legal outcome may very well differ. Generally, under the tort of negligence, homeowners (known as “Occupiers”) owe a duty to ensure people entering their property do not suffer any injury due to the homeowner’s negligence (this is generally known as Occupier’s Liability). This responsibility extends to 3 general classifications: People you invite into your property (like friends or the air-cond repairman) People with direct or indirect permission to enter your property (like party guests) Trespassers We know what you’re probably wondering why you need to ensure the safety of a trespasser, and we’ll get into that later in the article. For example, if you covered a huge hole in your garden with a carpet and a visiting friend fell into it because there were no warning signs (or if you didn’t tell them), they can sue you for injuries sustained. Similarly, they could also sue you if you didn’t restrain your dog and your dog bit them. This is because you have a moral and legal obligation to ensure a person’s safety or well-being when they’re on your property, in what’s called duty of care. Tort law is a pretty complex topic to discuss in this article, but you can read more about it in the link below: [READ MORE: What is tort law] So back to the topic at hand, how responsible you can be if your dog were to attack a burglar depends on whether the burglar was attacked when the crime is being committed, or if it hasn’t happened yet. Robbery is being/has been committed If an actual burglary was in progress, like if the burglar was already taking property from you when your dog jumped him; the situation would be a lot more clear-cut: Sections 7(4) to 7(6) of the Minor Offences Act 1955 provide, in relation to an intruder being attacked by a dog within its owner’s premises: (4) No compensation shall be payable to any person under this section in respect to any injury sustained in any house or premises except upon proof that he entered such house or premises in the ordinary course of his duties or with the express or implied permission of the occupier. (5) No criminal liability shall arise under this section in respect of any injury sustained by any person in any house or premises unless such person has entered such house or premises in the ordinary course of his duties or with the express or implied permission of the occupier. (6) The owner shall not be liable under this section for any injury sustained by any person where such injury was attributable to any wrongful act of such person. What this simply means is that the situation boils down to whether this person had your permission (whether direct or implied) to be on your premises in the first place. In the case of burglars – who are obviously uninvited and definitely unwelcome – it would be rather hard for him to argue that he was in your house with your permission or for any legitimate purpose, so it would be generally unlikely that a claim for compensation (if he sues you) or criminal case (if he files a police report against you) would succeed. Robbery hasn’t been committed Perhaps the intruder had made it as far as your car porch but your loyal canine attacked him before he could actually take any of your belongings. Say the police, after conducting their investigations, don’t find enough evidence to prove that the person entered your property with the intention to rob you. The intruder can now give any number of excuses to justify why he was on your property– he had entered to retrieve something of his that had fallen into your compound, thought he was at a friend’s house, or even that he was a repairman coming to do some odd-time repairs. This is where the situation becomes tricky because, since the burglar was stopped before he could do any burglaring, it means that – technically – he’s not legally a burglar yet. This is where we get into the issue of trespassers, because if they’re not technically a burglar yet, can they be considered a trespasser? The question of who can be classified a trespasser was addressed in the case of Segar Restu (M) Sdn. Bhd. v Wong Kai Chuan, where the term “trespasser” was given the following meaning: “...who is a trespasser? In law, a trespasser is one who wrongfully enters on land in the possession of another, and has neither right nor permission to be on the land. “ Coming back to our example, this person who entered your property had obviously done so without being invited by you and you would not have even realised his presence, had it not been for the tussle with your dog. Therefore, it would be rather safe to conclude that this man was a trespasser; whatever his intentions. This brings us to the next issue... what is your duty of care towards trespassers? In the case of Khoo Ting Hong v Sim Guan Soon, the Malaysian Courts officially adopted the reasoning used in an earlier English case of Commissioner of Railways v McDermott, where Lord Gardiner LC explained: ”...No duty is owing to a trespasser until it becomes known either that he is present or that the presence of a trespasser is extremely likely. The duty, when it arises, is a duty of a very limited character – not to injure him wilfully, and not to behave with reckless disregard for his safety...” This means that the degree of your duty of care towards a trespasser would be relatively lower compared to someone whom you’ve invited or given permission to use your property. It could be arguable that you would only be held responsible for the burglar’s injuries under very limited circumstances, such as if you ordered your dog to continue attacking the trespasser after he had already given up, or if you unchained your dog to chase down the trespasser as he’s running away. Do note, however, that the duty of care owed to trespassers is not a cut-and-dried concept and the courts have been known to make adjustments to this rule under certain circumstances – particularly where the trespasser is a child or where the act of trespassing was acknowledged and accepted by the Occupier. But in the situation presented in our example, it would seem rather unlikely that any attempt by the intruder to sue you for negligence would succeed. But this is not an excuse to be careless with your dog! Do note that what’s discussed in this article only applies where an intruder comes into your property and the injuries occur within the property. The same would not apply If your dog were to escape and injure someone, or if your dog were to bite someone while out on a walk with you. The consequences might be very different and you could find yourself in breach of a good many laws and bylaws. For instance, section 8 of the Minor Offences Act 1955 reads: Any person who without lawful excuse sets on or urges any dog or other animal to attack, worry or put in fear any person or animal, shall be liable to a fine not exceeding one hundred ringgit. Section 8C of UUK 2011 (the Kuala Lumpur by-laws for dog ownership) further stipulates that any licensed dog must at all times be leashed, muzzled and fully under the control of its owner whenever it is outside its owner’s premises and that no dog is permitted to be outside its owners premises unsupervised. Similarly, errant dog owners have been charged under Section 289 of the Penal Code which makes it an offence if you fail to sufficiently restrain or guard against any probable danger or grievous hurt to another person by any animal in your possession, with a prescribed penalty of a term of imprisonment up to six months, a fine of up to RM2,000, or both. In previous cases of people being killed by dogs, such as that of Irishman Maurice Sullivan who was mauled to death by two mixed-breed dogs while volunteering on a farm in Penang and Yip Sun Wah, who had been bitten to death by a miniature bull terrier which had escaped from its owner’s home, the dogs involved were euthanised, and their owners slapped with fines. However, where the dog attack did not result in the death of the victim, such as in Dhiya Qairina’s case, the owner was fined but the dog was not put to sleep. So, if you do decide to keep a dog on your premises, it is advisable that you put up warning signs on the fencing surrounding your compound and ensure that your dog is always secured and unable to escape the premises. Having sufficient warning signs regarding the presence of the dog may not only assist you in proving that you had taken reasonable steps in discharging your duty of care towards potential trespassers, but also happens to be one of the requirements laid down by the Kuala Lumpur municipal council for responsible dog ownership."
"5 rights you didn’t know you had as an airline passenger in Malaysia Most Malaysians love to travel, but regardless of whether you’re a seasoned frequent traveller or one who still needs Google maps to find your boarding gate, there are two things that will always be on your mind: “Please let my flight be on time” “Please let my bags come out safe”….!!!! We’ve heard all too many incidents of airline staff mishandling our luggage, and even damaging our belongings. What about flight delays where our meetings and accommodation arrangements get affected? Can we claim for compensation, and how much can we get? This is all covered under the Malaysian Aviation Consumer Protection Code 2016 (MACPC). It’ll apply whether or not you have flight insurance because these rights kick in when the airline or airport makes a mistake. Keep in mind that this is a Malaysian regulation and will only apply within Malaysia itself. That being said, here are 5 Malaysian aviation consumer rights you didn’t know you had. 1. You can claim for lost, damaged, and even delayed baggage So you’ve been spending the past 10 minutes looking at other people’s luggage slowly rolling along the conveyor belt, and yay, you finally see your bag. But as you lift it, you see a huge crack on the side that wasn’t there before. Good news is, you can actually get compensated for the damage! The first thing you need to do is file a written complaint with your airline. Your complaint should be filed within 7 days of arrival if your baggage is lost or damaged, or within 21 days of arrival if your baggage is delayed. If you reach your destination but your bag doesn’t, go buy a few sets of clothes and any toiletries you need - you’ll be claiming for these necessities against your airline later. Keep the receipts because you’ll need to provide proof of your claim through receipts and any proof of the value of your lost items (like the price of your devices). Paragraph 13(2) and (5) of the Malaysian Aviation Consumer Protection Code 2016 state that the maximum liability of an airline if they lose your luggage is about RM6400 - based on the exchange rate at time of writing (28th Feb 2018) of 1131 Special Drawing Rights (SDR). SDRs basically work like a separate currency with a value calculated by the International Monetary Fund (IMF) to make it easier for Malaysian airlines to compensate foreigners, and for Malaysians to be compensated by foreign airlines. If your airline does not respond to your claim or does not compensate you fairly, submit a copy of your written complaint and the airline’s response to the Malaysian Aviation Commission (MAVCOM) here. AskLegal’s Travel Tips: Always keep receipts for things you buy overseas. Take pictures of the contents and valuables in your baggage. Keep receipts of any necessities you bought while waiting for your delayed baggage. 2. If your flight gets delayed, your airline owes you lunch Flight delays are one of the most common inconveniences in air travel. Lounging around for another few hours is not usually a huge problem, but it could mean missing an important meeting for business travellers. In the worst case, your flight could be cancelled and you need to make arrangements until you can catch the next available flight. You’re actually protected by Paragraph 12 of the MACPC if your flight gets delayed or cancelled. According to the compensation scheme in the First Schedule, you can get: Free meals, refreshments, some phone calls, and internet access (for delays of 2 hours or more) Hotel accommodation when staying overnight becomes necessary, and transport to the place of accommodation (for delays of 5 hours or more) A full refund within 30 days, or an alternative flight ASAP, to your convenience (if your flight was cancelled) Take note that if the delay or cancellation was impossible to prevent (like security risks or extreme weather), your airline will not be held responsible (Paragraph 12(2)). If you were not properly compensated by your airline, write them a formal complaint and ask for a solution. Failing that, contact MAVCOM here to report the incident and they will investigate. AskLegal’s Travel Tips: Book your connecting flight with the same airline if you can. If your flight with Airline X gets delayed, they are not responsible for you missing your connecting flight with Airline Y. If you have a single ticket that has a transit at another airport, your airline is responsible to get you to your last stop. 3. Your airline must inform you about flight changes ASAP Flight times get changed from time to time because of many different reasons, whether it’s a late plane that threw everyone off schedule or a freak storm that decided to pop by and say hi. Fine, these things happen and you’re willing to put up with it, but you also need to know as soon as possible to make sure you can adjust. This is why airlines are required by Malaysian law to inform passengers of any flight changes as soon as possible. According to Paragraph 8(3) of the MACPC, airlines need to inform you of any cancellations, flight delays of 30 minutes or more, and flight diversions (changes of the plane’s route). AskLegal’s Travel Tips: If your flight gets delayed by a few days, you can get a full refund. If you have a hotel booking - you can’t get compensation for it, so use the ticket refund to buy another flight ticket. 4. Airlines must provide support to disabled passengers When an airline operates in Malaysia, they have to provide support to passengers with disabilities from the moment they arrive at the airport, until departure. Malaysian airports must also provide accessible points where disabled people can request assistance under Paragraph 9(19) of the MACPC: “An aerodrome operator shall - Designate points of arrival and departure within the airport boundary or at a point under the direct control of the aerodrome operator, inside and outside terminal buildings, at which a person with disability can, with ease, announce his arrival at the airport and request assistance…” Airlines also cannot refuse to board disabled people because of Paragraph 9(2), unless this would make them fail a safety requirement, or if the aircraft’s size or doors make it impossible for them to board the plane (like if the gangways are too narrow for a wheelchair). If a disabled person’s mobility equipment or assistive devices are lost or damaged by fault of an airline or airport staff member, they are also entitled to compensation for their equipment at the prevailing market price - as provided by Paragraph 14 of the MACPC. AskLegal’s Travel Tips: Contact your airline and let them know about your disability and any special needs you have at least 48 hours before your flight. Inform your airline if you need someone to accompany you on your flight for assistance. 5. If your flight gets overbooked, you must be properly compensated Airlines usually sell more tickets than they actually have seats for on any given flight. Not every passenger ends up taking the flight, so it’s an industry norm that a lot of airlines use to reduce the number of empty seats. But when the stars align, and bomohs with coconuts have been praying, everyone turns up and there aren’t enough seats. In this situation, the airline has to deny some people boarding - or to say it in a not very nice way, kick you off the plane. Under Paragraph 11(1) of the MACPC, your airline must first contact your flight to ask if any passengers will volunteer to surrender their ticket in exchange for compensation. If there aren’t enough volunteers, then the airline will have to choose a few people to deny boarding - who will also be compensated. If you volunteered to give up your seat, or were denied your seat, you’re then entitled to: Meals, some phone calls, and internet access. Hotel accommodation and transport if you have to stay overnight. As for your flight ticket, it’s not wasted so don’t worry - you’ll get a full refund on your ticket, or you’ll get the next available flight to your destination. AskLegal’s Travel Tips: You won’t be compensated if you get denied boarding for health or safety reasons, or expired passports/visas. So make sure you’re prepared like getting any required vaccinations and renewing old documentation. If you have any complaints about airlines… The first thing you should do if you feel an airline has wronged you is to write to the airline itself for a resolution. They need to acknowledge your complaint within 24 hours, and provide a resolution within 30 days. All airlines that operate in Malaysia are required to provide you with a feedback contact, like a mailing address, contact number, email, or website. MAVCOM has compiled a list of them here which you can use for reference. If you’ve done so and the airline has not given you a satisfactory response, you should submit a complaint to MAVCOM using this form. Prepare any documents and details of your complaint, which might include the following: Your correspondences with the airline or airport you made the complaint to Your flight details (including your flight number and time) The name of the airport Documents like your ticket, booking receipt, boarding pass, photos and screenshots, medical certification, your identification, and any other evidence related to your incident Now that you’re better aware of your rights as an airline passenger, happy travels!"
"Strata title vs individual title - how does it affect Malaysian landowners? You just paid the downpayment for your brand new condominium. The sales agent shakes your hand and tell you that the lawyers will be in contact soon for you to sign all the official documents. You eagerly wait for the lawyer’s call and when they do, you head over for the appointment, still gloating over the fact that you managed to score your dream property. As you settle down in the lawyer’s office and merrily sign away at all the documents, you heard the lawyer congratulating you on your strata property. You absently nod along then it hits you. But wait...you bought a condo, right? Not a strata property…what’s this strata property? Terrified that you signed away your life for the wrong property, you ask the lawyer about and he bursts out laughing and says that strata property just means the kind of title the land has. Any Malaysian looking to buy a house would come across these 4 terms; strata, individual, freehold, and leasehold. However, what are the differences and how can they affect you in the long run. Before we delve into what they are, let’s take a general look at how Malaysian land law is like. Our land law came from Down Under Before the British ruled us, our land laws were according to the local adat and according to that, any person who clears a piece of land is entitled to stay on that land. However, the traditional land laws didn’t grant ownership over the land (unlike today when you can own land) but it merely gave the right of usufruct (basically the right to use the land and gain profit from it). If the land is left abandoned or neglected, the owner will lose the rights to the land. When the British hit our shores, adat slowly gave way to the use of deeds. A deed is basically another word for contract or to be more specific, it is a term used to describe contracts which revolve around property rights over land. The use of deeds then mimic how deeds were used in the United Kingdom where in order to prove ownership of the land, you basically had to go to the “root of the title”. This created a problem because in order to find out what rights and interests exist on the land, you had to go through at least 15 years worth of deeds. In other words, it means that you had to meticulously keep your records and have to wade through a whole bunch of documents. All the problems lead to the British adopting the Australian Torrens System which is our land law system until today. This system was brought back by WE Maxwell after he realised that our cousins Down Under had a system that would fit us perfectly. Slowly over time, the land laws in our country were amended and consolidated to form several pieces of legislation today. Although some states such as Sabah and Sarawak have their own versions, most of our land laws are governed by the National Land Code 1965 (“NLC”) The Torrens System created the use of land titles. A land title is basically a piece of document that is given to you by the government to show that you are the owner of the land and if there are any other interests and rights in the land (for example, whether or not the land is charged to a bank). To see how land law works in the Torrens System, you can read about this Thai lady’s fight to get her land back in Malaysia. Now that we have the bare minimum out of the way, let’s turn our focus to the crux of the matter which is… There are 2 different kinds of land title While there are different categories of land and different uses for it, the titles which are issued by the Registrar only fall in one of two categories. The first is commonly referred to as an individual title while the other is known as a strata title. Individual title An individual title is usually (not always, especially if the area is gated and guarded) issued for landed properties such as terrace houses, semi-detached houses, bungalows, and the sorts. An individual title is issued when you are the only owner of the whole piece of land. Strata title On the other hand, a strata title is usually issued for high-rise properties such as condominiums, apartments, and landed properties which are gated and guarded. A strata title is issued when you own a portion of the land, alongside the other owners. A typical feature of strata properties is when the house you bought (whether landed or high-rise), comes with common facilities and areas such as swimming pools, clubhouses, and other common properties which are shared by all the residents. [READ MORE: Can the condo management in Malaysia enter my unit and take away my property?] The easiest way we can put it is like when you have an individual title, you get the whole cake to yourself. When you have a strata title, that one cake is split into eight slices and you get one slice. Now comes the most important question that you may have, does a strata title affect me differently from an individual title? The straightforward answer is no. Getting a strata title over an individual title doesn’t mean that you got a worse bargain. It is a only a difference in preference and needs and neither of these titles affect the property’s price. However, an important point to note is that since strata properties have common facilities and areas, there are more laws that govern strata titles and their management such as the Strata Titles Act 1985, the Strata Management Act 2013, and the Strata Management (Maintenance and Management) Regulations 2015. The more important thing to look at is the tenure of your land because the tenure can affect a lot of things from property demand to price. Land tenure is divided into freehold and leasehold. Freehold Freehold property means that the land belongs to you in perpetuity (forever and ever and ever and ever). The government can still acquire your land if they have to but this is much harder than in leasehold lands as we will see below. Leasehold Leasehold means that the State Authority owns the land and he is merely leasing it to you for a certain number of years, the most common one being 99 years (section 76(a) NLC). Upon expiry of the lease, the land with revert back to State Authority. The State Authority then holds the power to decide whether or not he wants to extend the leasehold. The application to extend the lease has to be made before the lease expires and you will have to pay a premium for an extension. The premium amount will be determined by the relevant State Authority. In a way, leasehold land works like a tenancy. You enter into a tenancy with the landlord for 3 years. During that time, you don’t own the property but merely rent it and when the rental period is coming to an end, you can either return the property to the landlord or you can negotiate for another rental period with him. By their powers combined At the end of the day, if you purchase a property in Malaysia, you can end up with one of the following combinations below: Strata + freehold = you purchased a piece of property that has common facilities shared with other people and a part of the land belongs to you forever Strata + leasehold = you purchased a piece of property that has common facilities shared with other people and and a part of the land belongs to you for a maximum of 99 years Individual + freehold = you purchased a piece of property where you get the entire piece of land and it belongs to you forever Individual + leasehold = you purchased a piece of property that has common facilities shared with other people and and the entire piece of land belongs to you for a maximum of 99 years [READ MORE: Have you ever bought a house in Malaysia and had no idea what you signed?] This is not everything though The above information only gives you the bare bones of the typical questions that most Malaysians have when looking to purchase homes for their own stay or for investment purposes. We will cover Malaysia’s land law in-depth in another article and we hope that you guys can hang in there with us because the path of land law is a tough and convoluted one."
"In 1947, Malaya almost adopted a completely different Federal Constitution Although they may not know the details, just about every Malaysian would know the significance of the Federal Constitution to the country. It’s quite literally the ‘supreme law of the Federation’ – like, those words are legitimately one of the first few things written in it. Even though it was drafted over 6 decades ago, what was put into the that document maintains its relevance up till today, as even Parliament generally can’t pass any law that goes against the Federal Constitution, save for a few exceptions. [READ MORE: Where does Malaysia get its laws from?] We take the Federal Constitution for granted as the ONLY document that forms the basis of all our laws and rights as citizens of Malaysia but did you know that... There was a time when we could have adopted a different Constitution altogether? Before we go into the differences between this would-be Constitution versus the Federal Constitution that was eventually used, we first have to understand the backstory of the political and social climate right after the Japanese Occupation, when the British resumed rule over Malaya Back when the British were in charge... “The worst thing about the Brits was that throughout colonial rule over Malaya, they took away all the resources and wealth of Malaya,” – Zainuddin Andika, PKMM member After the end of World War 2 in 1945, the war had taken its toll on morale and the local population began to develop feelings of resentment against the British. Pro-independence propaganda started becoming popular reads, and the successful Indonesian independence revolution added fuel to the flame. This culminated with the first post-war Malayan political party being formed: the Parti Kebangsaan Melayu Malaya (PKMM). By the end of the year, another pro-independence party, the Malayan Democratic Union (MDU) was formed in Singapore (which was still part of Malaya at the time). In a bid to channel as much resources as they could from Malaya to fund their war efforts and subsequent recovery, the British had segregated the country along racial lines through divide and rule to prevent rebellion within the colony. With most of Europe decimated after the war, the British really wanted to keep hold of Malaya, and their solution in 1946 was a little project called Malayan Union. As you might remember from school history classes, the unification of the Malay states and crown colonies was heavily frowned upon to say the least – with the Malayan people unhappy over issues like loss of Malay political power, citizenship for all, and continued British rule of Malaya. All this led to mass protests and the formation of a familiar-sounding political party. In the midst of the anti-Malayan Union movement, the United Malays National Organisation (UMNO) was formed. Originally working together, a disagreement over how to stop the Malayan Union and the plan after that meant the PKMM and its allies worked separately from UMNO, as PKMM formed wanting full independence and were strongly supported by the poor and working classes. The British had to choose one of them to work with as they didn’t want to see the conflict that happened in the Indonesian independence movement happen in Malaya. With UMNO being more British-friendly and more open to talks than the radical PKMM-led group, the British pulled up a chair with UMNO to discuss the end of the Malayan Union. The negotiations between the British and UMNO ended up with the proposal ended up with the Constitutional Proposals for the Federation of Malaya, which would replace the Malayan Union. As a quick historical reminder, this proposal became the 1948 Federal Constitution; which was later reworked by the Reid Commission to become the 1957 Federal Constitution that we have today. PKMM wasn’t happy with the UMNO/British constitution, so they made their own While UMNO’s successful attempt at ending the Malayan Union were seen by some as a cause to celebrate, many others didn’t look at it the same way. “Of course we organised another opposition to it… It was another attempt to restore the colonial governorship, but under a different name,” – Lim Kean Chye, co-founder of the Malayan Democratic Union Reluctant to allow what they saw as Malayan Union 2.0, these groups formed a united front – encompassing the PKMM, MDU, and their allies – and was to be led by Tun Tan Cheng Lok (who later went on to form the MCA). This marked the birth of the All-Malaya Council of Joint Action (AMCJA), one the first all-race political alliances in Malaysia. The AMCJA came up with their own constitutional proposal – the People’s Constitutional Proposals for Malaya. It argued for popularly elected governments, elections, freedoms of speech and movement, a road to self-governance and racial unity. The AMCJA then decided that a ‘hartal’ (general strike/protest) would be held on the 20th of Oct, 1947 to rally support for it; and it gained massive support. The British were not impressed with the AMCJA’s actions to say the least. They passed the Societies’ Ordinance and used the Registrar of Societies to ban and cripple member groups of the AMCJA, which signaled the end of the AMCJA and the People’s Constitution. Eventually, UMNO and their allies took charge of the independence fight in the 1950s and, by 1957….well, you know the rest. Of course, we couldn’t cover the whole story of the AMCJA and their fight for independence (the editor said too long) but you can watch the documentary ‘10 Tahun Sebelum Merdeka’ by Fahmi Reza which covers the story of the AMCJA and the People’s Constitution in much greater detail. The question remains however…. How different was the AMCJA proposal from the Federal Constitution? As we’re making a comparison between the AMCJA proposal and the Federal Constitution, it’s important to keep in mind that this cannot be an apples-to-apples comparison to say that one is better than the other, since the People’s Constitutional Proposals for Malaya (People’s Constitution) represented an ideological best-case scenario that was never realized; while the Federal Constitution was a result of negotiation and compromise with the British (as well as amendments that were made as the country progressed). Suffice to say, we’re simply looking at this from a historical aspect, as we’ll never really know what version of the People’s Constitution would’ve been adopted (or what it’ll become) in an alternate timeline. All references from the People’s Constitutional Proposals for Malaya obtained from a reprint that can be purchased here SINGAPORE Federal Constitution Of course, we know what happened with Singapore in regards to the Federal Constitution. Originally without Singapore or indeed Sabah and Sarawak, the Malaysia Act of 1963 added significant changes to the Constitution, alongside Singapore and the Borneo states to Malaysia. By the time Singapore left however, the Constitution was changed again, with Act 59/1966 removing Singapore as a state from the Constitution (see notes to Article 1 of the Federal Constitution). People’s Constitution (Proposal) Section 1 of the People’s Constitution stated that Singapore was to be included in the Federation of Malaya, with the AMCJA arguing that there was no reason to exempt Singapore, and that Singapore was historically very close with Malaya anyway. THE TERM ‘MALAY’/’MELAYU’ Federal Constitution Article 160(2) of the Federal Constitution states that the term “Malay” means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom. This seems pretty understood now in the modern context. People’s Constitution In the People’s Constitution however… we’d all be technically ‘Malay/Melayu’. The AMCJA were of mixed race and religion, and didn’t interpret the term ‘Melayu’ like we do today. Section 2 of the hypothetical People’s Constitution would’ve had every citizen of the country be called a ‘Melayu’, the same way we are all ‘Malaysian’ today. The People’s Constitution even had a postscript stating that the term ‘Melayu’ as citizenship was to have no religious implications whatsoever. SPECIAL POSITION OF THE MALAYS Federal Constitution Article 153 of the Federal Constitution dictates the ‘special position’ of the Malays. It provides affirmative action for Malays and for the natives in Sabah and Sarawak, stating ‘the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak’. It was also used to implement the New Economic Policy in 1971 following the May 13 riots. It’s a pretty complex issue, but click here for more quick information on Article 153 and the ‘social contract’. People’s Constitution While no such special position was in it, the People’s Constitution protected the Muslim religion and Malay customs as stated in Section 29. It stated that there would be Malay and Muslim only councils and associations formed to look after its concerns and recommend any suggestions to Parliament. Perhaps intriguingly, the People’s Constitution also explicitly states the formation of a ‘Council of Races’ to prevent discrimination and promote racial unity, and to analyse every Bill passed by Parliament to ensure it is fair to all racial groups. The Council of Races was to be separated from the Parliament to prevent bias and consists of members of all major ethnic groups including European, Arabian and Jew, and Orang Asli. RIGHTS AND FREEDOMS OF PEOPLE Federal Constitution Articles 5-13 of the Federal Constitution guarantee the following rights: Rights to life, liberty, education, property and equality, No slavery or retrospective criminal laws Freedom of movement, speech, assembly, association and religion. However, these liberties come with a few exceptions. For example, the Peaceful Assembly Act places conditions on what is considered legal assembly, or the Sedition Act of 1948 which can be arguably used to restrict freedom of speech. Beyond that, the Constitution also includes provisions that may restrict personal liberties in certain given situations, such as Article 149 of the Federal Constitution allows acts of Parliament to contravene the fundamental liberties promised in the Constitution during times of national crisis. Examples of these are the now-repealed Internal Securities Act (ISA), and the Security Offences (Special Measures) Act. People’s Constitution Assuming the People’s Constitution remained unchanged from its hypothetical adoption, the fundamental liberties are comparatively broader. Sections 6-18 of the People’s Constitution would’ve explicitly guaranteed equal rights of opportunities; equality before the law; gender equality; freedom of speech, publication, assembly, religion and movement; guarantee of fair trial; rights to property; minimum wage; care during old age; right to leisure and education; vacation for all workers; right to protest and; the right to petition the Council of Races for assistance. Phew. There also appears to be no conditions on these liberties in the People’s Constitution. FEDERAL POWERS Federal Constitution The Federal Constitution sets the guidelines for the federal and state governments. Parliament makes laws related to ‘federal’ issues (budget, tourism, etc), and state parliaments make laws related to ‘state’ issues (land, state holidays, etc). Both federal and state parliaments will have a leader (PM for federal and MB for states), and they select their own respective cabinet. There’s also a set of ‘concurrent’ issues (utilities, healthcare, etc) decided by both federal and state parliaments but Article 75 states that in event of disagreement, federal decisions overrule those of the state. People’s Constitution A major shift in the federal-state relationship in the People’s Constitution is that there would be a stronger federal government. This version’s Parliament would consist of one MP for every 45,000 citizens. Something to note is that, in 1947, Malaya only had a population of 5 million, compared to today’s 30 million.This translates to over 600 MPs in present-day Malaysia (compared to the 222 which we currently have)! We didn’t see any mention of state parliaments – we can only assume this would mean one major Parliament like the British, who also don’t have state governments. The Parliament then elects the Prime Minister and his cabinet, this time called the Federal Council. Whether AMCJA or UMNO, the most important thing is that... ...we finally got our independence. What’s important to keep in mind is that despite having differing opinions on what they wanted to achieve and how they set about achieving it; both groups had the same common cause of wanting the best for the people. And one common point that they started out with was the legal backbone of the country. We weren’t kidding when we said that law permeates every aspect of a person’s day-to-day life. Again, while it may be easy to brand one faction’s ideas as “better” or “worse”, we’ll never truly know the road (or, in this case, Constitution) not taken. Instead, take it as a interesting snippet of a slice of Malaysia’s history that is not often discussed or widely known. Like they say, those who forget the pasta doomed to reheat it… wait no–"
"How did one lawsuit in 1995 make professional footballers filthy rich overnight? Even if you aren’t familiar with sports, you’d know that every sport – from major ones like football or tennis to really niche ones like curling – has a specific set of rules that govern how it’s played. You’d also have at least heard of names such as International Olympics Committee (IOC), FIFA, and ITF; which are the regulatory bodies that set and enforce these rules. So in a way, these guys are like the law-passing parliaments and courts (the legal kind, not the ones you play badminton on) of the sporting world. This now leads to a problem… what happens when someone doesn’t agree with the decisions of the regulatory bodies? Can real-world courts and laws step in, and where are the lines drawn? For example, if a football player has a problem with a contract he signed with a football club, should he bring it up with FIFA, his local football association, or the courts? Well, actually there is something known as sports law and it’s basically an amalgamation of all kinds of laws such as contract, tort, and many others. While we are cheering on our favourite players and teams, we may not be aware of how the undercurrent of laws overlap in the game. We may scream, “FOUL” but a lawyer might scream “SECTION 18 OAPA 1861”. So if you’re curious about how sports law works or if you’re a law student drooling at the prospect of marrying your love of sports with your love for law... The British Council has your answer(s)! The British Council will be having a FREE seminar on how law shaped football and other sports on March 4th at the Kuala Lumpur Convention Centre, conducted by Alfonso Valero from Nottingham-Trent University in the UK. This is just one of the many interesting seminars that you can check out at the Study UK exhibition, such as how you can get a Master of Law (LLM) Bar Practice (March 3rd). Head over to the British Council’s Facebook page for a full list of seminars in KL and Penang. Better come early because seats are limited. But not just that, if you pre-register using this link, you stand a chance of winning a free round trip to London! Now, let’s look into the lawsuits that allowed footballers to be ballin’, plus a few other milestones in sports law. 1. The lawsuit that made football players VERY rich If you are a hardcore football fan, you would know that football players get paid an obscene amount of money. One the highest paid footballers in the world, Christiano Ronaldo has a total earning of $93 million, with his salary and bonus alone amounting to a staggering $58 million. However no football player would have been able to bling it like Beckham if not for a court case that literally turned the football world upside down. Before this, football clubs had all the power to trade players around according to their whim and fancy. The club held the ultimate decision in whether to allow you to transfer to another club for free or demand for a transfer fee from the new club. If the new club can’t afford the transfer fee, players either have to pray for a free transfer or just remain stuck in the club with contracts that usually didn’t benefit them. This all changed when a young Belgian midfielder named Jean-Marc Bosman took his former football club to court. In 1990, Bosman was coming to the end of his contract with RFC Liege and wanted to accept a better contract from a French football club, Dunkirk FC. The transfer fee that Liege demanded from Dunkirk was too high so the deal fell through. This forced poor Bosman to stay on in Liege with a 75% pay cut. When he complained, the football federation told Bosman that if he refused to sign the contract with Liege, he would be suspended. Bosman then thought enough was enough and he contacted a lawyer. When they approached UEFA, doors were slammed in their faces. Bosman then took his case to the Court of Justice of the European Union (CJEU) – the highest court in the European Union – and spent five years of his life embroiled in a bitter legal battle. What happened next is succinctly explained by the words of Sir Alex Ferguson (emphasis added), “Once the European Court of Justice ruled that clubs no longer had to pay transfer fees after the expiration of a player’s contract, all hell broke loose. Suddenly it was a free-for-all” – Sir Alex Ferguson in his book Leading The CJEU ruled that players in the European Union should be given the right of free transfer when their contracts end. This judgment basically took the power out of the hands of the football club and placed it squarely in the hands of the individual players. Players who were almost at the end of their contract were now free to move anywhere...for free. Some of biggest names in football have benefitted from what is now known as a Bosman transfer and this includes the likes of Steve McManaman, David Beckham, and Micheal Ballack. Despite all this, Bosman lost his career and was only paid damages which were barely enough to cover his legal costs and lost earnings. However, Bosman says that: “It was the ruling of the century in the world of sport and, even if I’ve had difficult periods since and all together this has been like some sort of test, it’s made me think. It’s made me think that I’ve contributed” – Bosman, in an interview with the Daily Mail We should note that the Bosman ruling and its implications to professional sports is one of the major topics covered in British Council’s seminar. 2. The first sports-related lawsuit happened more than 350 years ago! Although sports is a highly encouraged recreational activity that we take for granted nowadays, it wasn’t the case back in the day. Believe it or not, sports law is believed to have emerged from the case of Abbot v Weekly, which happened in an unnamed village in Oxfordshire waaaaay back in 1665, involving the right to play sports. Although football was popular enough at the time to be namedropped by Shakespeare in his plays, it actually involved the recreational sport of…..dance. What happened was this – one of the villagers owned a piece of land that was enclosed by hedges to keep random people out (kinda like our house fences today). However, this hedge didn’t stop the rest of the villagers from entering the poor dude’s land to party like it’s 1699. The landowner was unhappy that his land was being turned into an impromptu nightclub for two reasons; that the dancing was killing his grass, and that the villagers would enter and dance whenever they wanted to (instead of at certain times of the year). So he decided to sue the village people (not the disco band), arguing that because the dancing wasn’t seasonal and caused damage all year round, the court should stop the dancers from trespassing onto his land. The villagers counter-argued and said that they had gained the rights of recreation on the land since they danced there from time immemorial, from their fathers to their grandfathers’ grandfather. And the Court agreed with them! The Court ruled that since the villagers had danced on that piece of land since pretty much forever, it created a recreational right, and that it is necessary for them to have their recreation. So what does this have to do with playing football at your local padang? Well, the implications of this ruling was only felt 200 years later during the Industrial Revolution, when people started working shifts in factories or offices. Recreation time became even more important as a way to escape the regimented work life so all forms of sports was considered recreation, with football and rugby being particular favorites in England. For instance, factories implemented rules that allowed their workers to stop work at 2pm on Saturdays for recreation, and laws were passed to prevent recreational land from being turned into factories. This recognition of the right to recreation created the foundation of how sports are played and regulated in the UK (and around the world) today. 3. Women don’t have an easy time when it comes to sports The image above is from the 1967 Boston Marathon when Kathrine Switzer was assaulted by an official for participating in the then all-male marathon. You may have seen it on Facebook to encapsulate the battle of female athletes to be taken as seriously as their male counterparts. Another popular example of this is when female tennis player Billie Jean King beat (male) World No. 1 Bobby Riggs in a match that popularized the phrase “Battle of the Sexes”. While female athletes are taken more seriously nowadays, discrimination still exists. The best example can be seen from a groundbreaking case of Sagen v Vancouver Organising Committee for the 2010 Olympic and Paralympic Winter Games where 15 female ski jumpers took the Vancouver Organising committee to court for discriminating against female ski jumpers. The short gist of the story is that, according to Rule 47(3) of the then Olympic Charter (it changes quite frequently), a sport can only be played at an Olympic level if either one of the following conditions were fulfilled: The event is practiced by men in at least 50 countries and 3 continents The event is practiced by women in at least 35 countries and 3 continents At the time, both the men and women ski jumpers didn’t meet the requirements but the International Olympic Committee (“IOC”) decided to use its discretion to allow the men’s ski jump event because it was historically hosted in the Olympics, while refusing to do the same for the female event. And so the female jumpers went to court, claiming that, because of their sex, their equality rights under section 15 of the Canadian Charter of Rights and Freedoms have been violated. While they lost the case on grounds that the events were not related to the issue of equality, the evidence put forth by the women showed how the world is coming to recognise that women athletes are still being discriminated against in terms of event participation, funding, and training opportunities. But not just that, female athletes also have to prove how “female” they are! You may not know this, but female athletes are “sex-tested” before they can be allowed to compete to prevent sneaky countries from sending in male athletes dressed as women to compete. However, the case of Indian female sprinter Dutee Chand brings about a new concern – what if she’s a real woman, but with male hormones? Basically, hyperandrogenism is a condition where a female body contains too many male hormones, commonly testosterone. Some sports regulatory bodies like the International Association of Athletics Federations (IAAF) have rules against hyperandrogenism, claiming that female athletes with high testosterone levels had an unfair advantage because testosterone improved performance. In Dutee’s case, she failed the hormone test due to her naturally high levels of testosterone and the IAAF banned her from competing in the Commonweath Games and Asian Games. Refusing to take a hormone treatment to lower her testosterone levels, she sued... and won. “Although athletics events are divided into discrete male and female categories, sex in humans is not simply binary ... ‘Nature is not neat.’ There is no single determinant of sex.” – Court of Arbitration for Sports The Court of Arbitration for Sports suspended hyperandrogenism rules for two years and asked the IAAF to provide evidence for their hyperandrogenism claims. If they were unable to prove the claims, the suspension would be permanent. 4. The case that stops you from suing a player who injures you Ever wondered why you rarely (if ever) hear of athletes suing each other because of injuries sustained during a match? If your football career was ended because some other player broke your leg during a tackle, you should be able to sue for lost income, right? In law, there’s a thing called the defence of consent. The way it works is like this – if you were playing rugby with your friends and a tackle caused your shoulder to dislocate, the person who tackled you has technically committed a criminal offence. However, because you consented to playing, it can be implied that you consented to the risks that come with the game. This is why you don’t have athletes suing each other all the time. But wait, theres more! Does this consent also apply if you are injured beyond what you expected? In the famous boxing match of Tyson against Holyfield, Holyfield certainly didn’t enter a boxing match consenting to his ear being bitten off. This is where the case of R v Barnes comes in. Mark Barnes was playing in an amateur football match when he tackled someone on the opposing team and caused a serious injury. The prosecution then took him to court and argued that he should be punished criminally because his tackle was “late, unnecessary, and high up the legs”. While Barnes admitted that his tackle was hard, he argued that it was a fair tackle. The Crown Court actually found him guilty of a criminal offence and he was ordered to pay a couple thousand pounds in compensation. Unhappy with the decision, he appealed and the Court of Appeal decided in his favor with several noteworthy points: Most sports bodies have their own regulatory bodies to punish their players and criminal law should only come in in exceptional circumstances Even when the injury beyond what can be reasonably expected, the court can make some leeway for “heat of the moment” actions, especially in highly competitive sports Whether or not criminal action is required depends on all the facts and circumstances of each case There you have it – every tackle or punch during a sporting event can still be an offence, but a criminal action is only pursued in the most exceptional of cases because the law already knows that you consented to the risks of the game. But what if you weren’t competing, but just in the stands watching? Well... 5. If you get hit by a car while watching a race, too bad (kinda). While it’s relatively safe being a spectator just enjoying the excitement of a live game, mishaps have been known to happen; such as a teenager dying after being hit on the head with a baseball, or even on home ground where 17 Malaysian drag racing fans ended up in the hospital after a car lost control and skidded right into them. While you may think this is grounds for an epic lawsuit that you’re sure to win, the case of Hall v Brooklands Auto Racing Club showed that this isn’t really the case. Way back in the 1900s, racing motor cars was a pretty popular sport. Given this, a racing course in Brooklands was opened in 1907 and operated without any hiccups until one fateful race in 1933 where a car flew out of the course, killing two spectators and injuring many others. Despite this, the court ruled that the owners of the racing course were not to blame because: The owners had done all they could reasonably do to ensure the safety of their spectators. The owners cannot be expected to protect spectators from dangers that were inherent in the sport The spectators are implied to have accepted the risks when they attended the race Basically, the owners of the course actually built stands for their spectators to watch the race from a safe distance. Despite this, many spectators chose to forgo the stands and stand along the iron railing to get a closer look at the cars zipping by. Usually, it was all a-okay until that fateful day when they got a closer look than they bargained for. This case means that if you attend a baseball match and end up with a black eye from a foul ball, you can’t sue because the law acknowledges that for certain sports, there are risks involved in merely watching them. But this is just a warm-up... As we mentioned, sports law actually covers a broad range of laws, and we’ve only covered the surface of how regular laws can be applied to sports. If your goal in life is to be involved in both sports and the law or simply curious to see how law has transformed a sport that you love, then you should definitely go for the seminar on March 4th at KLCC. It may not only be an educational experience because, when you register in advance, you might just find yourself standing outside your favorite English football club if you win that trip to London!"
"What can you do if no action was taken on your police report in Malaysia? Feature image for illustration purposes only. It’s from an incident in 2015 where two policemen who were found sleeping on the job. Read about the incident here. Imagine you’re driving to work or class one day. You’re cruising at a steady and safe speed on the highway when suddenly, this maniac driver cuts in front of you. Surprised by the sudden movement, you didn’t have time to brake and crash into the back of the car. You reel further in shock and anger as the maniac quickly drives off instead of making sure you’re okay or exchanging insurance information. At this point, you’ll probably want to make a police report of the incident and bring the driver to justice. As a side note, even if you don’t think he can be tracked down, the report will protect you from any false claims the driver may try to take against you. From here, the best outcome is obviously that the guy gets caught and is punished by the law. But for different reasons, he might not get caught at all. Here are 2 scenarios that you might get upset at, and what you can do about them. Scenario 1 - There was no legal action taken Some cases have the police completing their investigation, but end up with no legal action taken - also known as NFA (No Further Action). In some cases, there just isn’t enough evidence to prove the case, important witnesses might not be available, or the suspect just can’t be found. It’s not the most satisfactory ending for a case, but some cases get stuck at this point because there just isn’t any lead to go on. Before you point at the police, they only have the power to investigate the case. It’s the Attorney General who decides whether to bring a suspect to court. So if a case you reported ended with a NFA, you can actually appeal it to the Attorney General for him to reconsider. [READ MORE - Who is the Attorney General and what does he do?] It’s still up to the Attorney General to decide if the case is worth bringing to court, but his decision will be strongly influenced if there is new evidence for the case. What you can do is send a written appeal to the Prosecution Division, Attorney General’s Chambers. You can either address it to your State’s Prosecution Unit, or send it directly to the Headquarters in Putrajaya. Now let’s consider another scenario where you’ve made a police report, but the investigation seems to be taking forever! Or maybe you went to the police station to make a report, but they refused to take down your statement without a valid reason. What can you do then? Scenario 2 - Nothing was done about your police report/The police refused to take your statement Here’s something you might not have known - you can actually ask the police for a status report for the investigation on your case. That’s because of the existence of Section 107A(1) of the Criminal Procedure Code. You do this by requesting for a report on the investigation progress from the officer in charge of a police station (the OCS), or the officer in charge of police district (the OCPD). 4 things can happen thereafter: You’ll get the report within 2 weeks if the crime you reported is a “seizable offence” (normally more serious crimes like robbery and murder where bail is not allowed) You’ll get the report after 4 weeks of giving your report for other crimes. (including those like pickpocketing) You’ll not get a report at all if the investigation or prosecution for the crime would be compromised by the report. (like if there was an undercover operation) You don’t get your report on time without a valid reason, and you can make a complaint to the Attorney General’s Chambers. That being said, if you lodged a report and the police didn’t take your statement, or didn’t take any action on your report, you can also make a complaint to the OCS or OCPD in writing. You should also CC the complaint to the Prosecution Division of the Attorney General’s Chambers. The other option is to make your complaint directly to the Prosecution Division of the Attorney General’s Chambers, who will then prompt the police station involved for a response. There’s a proper way to keep government bodies accountable When a person or group of people have a lot of power, there is potential for that power to be abused. That’s why some branches of government keep an eye on each other to make sure no one oversteps their bounds. As for the rest of us, when incidents happen, any details we remember could be a lead for the police to track down the suspect. In the hit-and-run example we used at the beginning, having a dashboard camera (dashcam) that recorded the car’s model, plate number, and colour might just be what the police need to move forward with a case. [READ MORE - If you hit a car from behind and it’s not your fault, a dashcam can save you a lot of trouble] If we’re not happy with how a government body is handling our case, the first thing we can do is find out what’s going on from them. From there, there are proper channels set up to handle any wrongdoings which we can use to solve the matter instead of taking to social media to rant about it. [READ MORE - Shaming others on social media could land you in jail]"
"Can you sue for a misleading advertisement in Malaysia? “We have the best fried chicken in the world!” “This bottle of multivitamins can cure your depression!” “This cream can make your skin whiter than snow!” We’ve all come across advertisements that sound way too good to be true. Oftentimes these claims turn out to be exactly that – too good to be true and falling short of expectations. A more mundane example would be the scrumptious and plump looking burgers that most burger joints use for their menu images. More often than not, the burgers never end up looking like the ones on the menu. Darn you, burger joints! While most of us may just accept the fact that we’ve been conned by sneaking marketing or food photography tricks, some of us (especially you guys who clicked to read this) may be wondering if there’s any legal action you can take when the actual product looks like a sad mutant version of the photo in the advertisement We’ll state right away that there’s no direct way to sue for a misleading ad in Malaysia; but there are other measures that you can take. Before that though, let’s take a look at the lawsuit that affected how ads are worded today. An old English case showcased the finest false ad of the time According to English law, in order to hold a person or a company to what is said in an advertisement, the advertisement must have amounted to what is known as an “offer”. This “offer” isn’t the same one you might see in retail shops giving out discounts. An offer is the indication that a person has the intention to enter into a legally binding contract. The person to whom the offer is made can accept the offer and immediately that becomes a contract. A classic case associated with offer is the case of Carlill v Carbolic Smoke Ball Co which happened in the late 1800’s. Basically, the Carbolic Smoke Ball Company put out an ad where they would pay a customer £100 if the product – which is meant to prevent influenza – didn’t work. Sure enough, a Mrs. Carlill caught the flu after using it, and Carbolic didn’t pay up. So off to court they went, with one of the central issues being the concept of a “mere puff” – or better known today as a marketing tactic. The Carbolic Smoke Ball Co tried to argue that that, among other things, the ad they put out was a mere puff. In this case, Mrs. Carlill actually won the case because the Court decided that since Carbolic deposited £1000 into a bank, it was enough to show their intention to enter into a contract. That’s not to say that you can sue for all advertisements that don’t correspond with their products, though. Carlill v Carbolic Smoke Ball Co was pretty unique in the fact that Carbolic deposited the £1000 into a bank which indicated that they had an intention to stand by their offer – thus making it a “contract”. Realistically, most advertisers don’t do this. In fact, one of the judges in the very same case said that: “It is not like cases in which you offer to negotiate, or you issue advertisements that you have got a stock of books to sell, or houses to let, in which case there is no offer to be bound by any contract. Such advertisements are offers to negotiate – offers to receive offers – offers to chaffer.” He meant that as a general rule, advertisements should not be taken as offers. These offers are “offers to negotiate”, which is pretty much “Aight this is our product, take a look and see if you wanna buy it”. There’s no offer being made, and none to be accepted. To a certain extent, this is why you’ll always see disclaimers such as “Image for illustration purposes only” or “Actual results may vary” in the small print at the bottom of most ads nowadays. Unfortunately, you can’t sue for false advertisements in Malaysia As is with the UK, advertisements in Malaysia generally don’t amount to offers. An offer is called a “proposal” in Malaysia, and is defined in the Contracts Act 1950: ...when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to the act or abstinence, he is said to make a proposal; A proposal means pretty much the same thing as an offer; an indication by the person who made the proposal to enter into a legally binding contract. However, there’s no actual way to directly sue an advertiser for a misleading advertisement to claim damages. Again, that’s not to say that people or companies in Malaysia can stick what they like into ads. There are several laws and regulations that provide protection for consumers in Malaysia. Certain categories of products have restrictions on the descriptions or advertisements on said products, like for medicine and drugs. According to the Control of Drugs and Cosmetics Regulations 1984, the labels on medicines and drugs have to be registered with the Ministry of Health to ensure that the products don’t contain dodgy ingredients. The Sale of Drugs Act 1952 has penalties on misleading ads for drugs and medicines. [READ MORE: How do I know if medicine and cosmetics in Malaysia are safe to use?] We also have a Malaysian Code of Advertising Practice which seeks to ensure that printed advertisements are lawful and honest. This effort was actually launched by our first Prime Minister, Tunku Abdul Rahman Putra Al-Haj. The Code covers all sorts of products, from alcoholic drinks, to slimming products and services, to vehicles. Unfortunately, the code is designed for self-regulation, and it’s not an actual law, per se. There’s no actual enforcement agency that goes around to enforce this code, so it relies on the goodwill of the advertisers to follow the code and be decent persons and companies. With regard to advertisements that appear online, we have the The Malaysian Communications & Multimedia Content Code put forth by the Malaysian Communications and Multimedia Commission (MCMC). Part 3 of the code sets out the regulations on online ads and boy are they thorough. A particular section is specific to the matter at hand: (iii)Honesty and Truthfulness a) Advertisements must not be so framed as to abuse the trust of the consumer or exploit his lack of experience or knowledge. b) No advertisement should mislead by inaccuracy, ambiguity, exaggeration, omission or otherwise. Subsection (b) says that no advertisements should be misleading, either by being inaccurate, vague, exaggerated, et cetera. If anyone finds an ad like this, they can report it to the MCMC, and the advertiser may be penalized, according to the Code: The Bureau may upon finding that there has been a breach of the Code: (a) Issue a written reprimand; (b) Impose a fine not exceeding fifty thousand (RM50, 000.00); and/or (c) Require removal of the Content or cessation of the offending act. An offending advertiser might reprimanded in writing (very effective), be fined up to RM 50,000 and/or be required to remove the offending advertisement from wherever they put it up. The stakes are high, so this Code could prove to be excellent. You can’t sue for misleading ads in Malaysia, but you can make complaints If nothing else, what you need to take away from this article is that there’s no way to sue a false advertiser for a misleading ad. What people should also know is that preventative measures go a long way. Knowing your consumers rights can help you from being misled by ads or sales representatives. The Ministry of Domestic Trade, Co-operatives and Consumerism (KPDNKK) has a website that has good info for consumers that desire to educate themselves on their rights. [READ MORE: 5 consumer rights you didn’t know you had in Malaysia] Aside from ads, manufacturers have a responsibility to manufacture products that are safe for consumers, but that’s a topic for another day."
"Where does Malaysia get its laws from?  If someone asked you, “Where does Malaysia’s laws come from?”, your knee jerk answer would most probably be, “From Parliament”. It makes sense for this to be Malaysia’s source of law because the government is technically divided into three bodies: The executive which is responsible for carrying the governance of our country The legislature (Parliament) which is responsible for making and amending our laws The judiciary which is responsible for interpreting and applying the laws passed by Parliament If the 3 bodies of government all have their roles to play and only the Parliament can pass and amend laws, then Acts of Parliament must be Malaysia’s only source of law...right? Well, we hate to burst your bubble because there are actually a plethora of sources in Malaysia. The first thing you need to know is… The law is actually divided into written and unwritten law We know that this sounds intensely odd because how can a law be unwritten? Does it just float somewhere and do lawyers hunt it down like how a Seeker hunts a Golden Snitch? Unwritten law is actually something of a misnomer because it’s not that the law is not written down but it’s just that the law is not consolidated in one place. To put it into example, it has always been said that the UK has an unwritten constitution – this basically means that unlike Malaysians, the UK peeps don’t have a document that lists down all their basic rights like our Federal Constitution. Their basic rights are found in a bunch of different laws and in the Magna Carta (a charter of rights somewhat). Unwritten law in Malaysia comprises of the English law (inherited from our British rulers), judicial precedent, and customs. On the other hand, written law is basically when the law is consolidated into a singular document like how most of our laws can be found in their respective documents. Examples of written law in Malaysia is our Federal Constitution, Acts of Parliament (also known as primary legislations), and subsidiary legislations Hold on a minute though, it’s well and good that we have all these sources of law but how did they become sources in the first place? It was a higgledy-piggledy historical adventure It all started with William the Conqueror’s conquest of ye olde England way back in 1066. After this conquest, Bill created the curia regis (King’s court) to settle disputes across England. His judges would ride out to villages and hear the disputes and give their judgments. Then, they would ride back to the city, sit down, and compare their cases and judgments given. The best judgments were then compiled and these judgments became the common judgment (also known as judicial precedent, hang on to this nugget because it will be explained in detail below) to given out when the judges were faced with same/similar disputes in the future. This was how the common law (English law) came to be and is aptly named so because it was “common” to all the King’s court across the country. The law needed to be common because there had to be certainty when dealing with the law. A thief has to be treated in the same way as another thief. As this common law was practiced in England, the English brought it over to our country when they colonised it. It’s not to say that the inhabitants of Tanah Melayu were lawless creatures prior to the British’s appearance but instead of having a common system, the old Tanah Melayu-ans were subject to their respective adat depending on where they came from or what race they were. While the use of adat remained in place, the British’s rule gradually implemented the common law in our country and our laws were mostly created through deciding cases or importing them in from other British colonies. For example, our land law is based off the Australian Torrens’ System while our Criminal Procedure Code was taken from India. At the point of independence, our Federal Constitution was drafted and it became the supreme law of the land which sets out the framework of our law and lays down our basic rights. This was how our first (technically) source of law came to be. Two sources of unwritten law, the common law and use of adat was adopted into Malaysian law through Article 160 which says: ““law” includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof” The Constitution then empowered our Parliament to draft new legislations and pass new laws. Here’s where an interesting divide happens – Parliament is empowered to make laws for the entirety of the Federation (the whole of Malaysia) but the Constitution also empowers the State Legislature to make laws for their own state. This is why we sometimes have laws in Malaysia that differ from state to state, the best example would be how some states work on Sundays and some don’t. However, if a State law conflicts with a Federal law, the Federal law will take precedence. Federal laws passed by Parliament are referred to as Acts while State laws are usually called enactments or ordinance. These laws that are passed by either legislature can confer powers on other authorities to come up with laws and this is known as subsidiary legislation or delegated legislation. There you have it, folks. That was how written law came to be made up of all these sources of law and it was how the laws of Malaysia adopted two forms of unwritten law into our framework. If you are curious about what happened to the final source of unwritten law, judicial precedents, hang tight. Judicial precedents make sure the law is applied fairly A judicial precedent is basically a decision by the court that must be followed in the next case which bears similar facts. This was essentially how the common law developed and it is based on the principle of stare decisis which means to stand by what has been decided. The reason for this is to ensure that there is certainty in the law. Remember we told you that the judges are in charge of interpreting and applying the laws passed by Parliament? Precedents are how the judges work in tandem with Parliament. How this works is let’s say Parliament passed a law that says that an element of theft is “dishonesty”. The judges then have the leeway to decide what dishonesty means, depending on the facts at hand. This creates a precedent, which must be used in future cases with the same facts. If the facts are different, then there is no need to follow the previous precedent. For example, if Ali claims the defence of insanity, the judges test whether he is insane by following method A. Two years later, Abu claims the defence of insanity as well. The judges cannot then test whether Abu is insane by following method Z. This is how the principles of stare decisis and judicial precedent work to ensure that the law is fair and prevent judges from deciding on their whim and fancy. Judicial precedents can only be made by superior courts which are the High Court, Court of Appeal, and Federal Court. Aside from this requirement, a judicial precedent can only be drawn from what is known as the ratio decidendi of the judgment. This is different from the obiter dicta portion which cannot become a binding decision. Ratio decidendi means reason for deciding while obiter dicta means other things said, akin to a “by the way” sentence. An example of how this works is as follows: Judge Azim finds Ali guilty of theft. In his judgment Judge Azim says that Ali is guilty of theft because he stole the Tessaract with the dishonest intent to permanently deprive Odin of the Tessaract [ratio decidendi]. Judge Azim goes on to say that if Ali had found the Tessaract lying in a ditch, then maybe he wouldn’t be guilty of theft [obiter dicta]. Judges are allowed to change an old precedent if the law is no longer considered fair by current moral standards but this is the exception to the general rule of sticking by precedents. This is where judges from the higher courts (this also depends on court hierarchy which we won’t go into right now) can go against the current binding decision and create a new one which would be followed in the future. Precedents can also be changed if Parliament enacts a law which changes the precedent and as Parliament’s Act is higher ranked (as a manner of speaking), then the judges will apply the new Act as opposed to the old precedent. An example of precedent changing to suit changing times is the criminalisation of marital rape in the landmark case of R v R in UK wayyy back in 1994. The discussion above is a mere part of what judicial precedent is and the rest will be discussed in a separate article. With all that has been said about the sources of law, and given the multi-faceted face of the law, it seems more likely that… All “sauces” are needed for good laws Like good roast chicken which needs all manners of herbs and spices to make it insanely delectable, the application, growth, and evolution of the laws of Malaysia requires contributions from all sources of the written and unwritten law. A parallel is drawn to our Federal Constitution; it may be the supreme law of the land but the Constitution alone is insufficient to govern the entirety of Malaysia."
"Malaysia's Attorney General has just resigned... But what does an AG do? When you report an incident to the Malaysian police, what they need to do (in summary) is gather information, then file an investigation report with the Public Prosecutor (PP) - who is also known as the Attorney General (AG). You may have heard a lot about the AG and his Deputy Public Prosecutors (DPP) in news reports where a criminal was charged in court, but what do the AG and his DPPs actually do? As we write this, we don’t have an Attorney General, as Malaysia’s former AG, veteran lawyer Tommy Thomas, has just resigned. The new AG has not been confirmed yet, but we’ll update this article when that happens. So, how exactly can a person become the AG of Malaysia? Is it a job that anyone can apply for? It’s not easy to become the AG The position of Attorney General itself is created by Article 145 of our Federal Constitution, and you might be disappointed to learn that it’s not a position open for applications. To become the Attorney General, you have to be selected by the Yang di-Pertuan Agong, on the advice of the Prime Minister. But even to be considered in the first place, you have to be qualified as a judge of the Federal Court of Malaysia (the highest ranking court). According to Article 123 of the Federal Constitution, to qualify as a Federal Court judge, a person needs to: be a Malaysian citizen, and have been a lawyer handling cases in the Superior Courts of Malaysia, or been a member of Malaysia’s judicial and legal services for the past 10 years. That’s quite a resume you need to have on top of being hand picked by the Agong (with the Prime Minister’s input of course). For a job that is so difficult to get, the duties of the Attorney General are: Article 145(2) - Federal Constitution “to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.” In very basic terms, this means that he’s the government’s head lawyer. The Attorney General of Malaysia also has roles as: The Head of the Attorney General’s Chamber (obviously) The Chairman of the Legal Profession Qualifying Board (where lawyers get their certification from) A member of the Judicial and Legal Service Commission (the government branch of legal officers) A member of the Pardons Board of each State in Malaysia (through Article 42(5) of the Federal Constitution) That’s a lot of official roles to have for one person, so it seems that the AG holds a position of great responsibility, so what are the AG’s great powers? The AG and his deputies are in charge of proving criminals guilty The Attorney General controls all criminal proceedings in Malaysia. From Article 145(3) of the Federal Constitution, the AG has the power to start, conduct, and discontinue any legal proceedings for a crime, other than those governed by a Syariah court, a native court (those that enforce native laws and customs), or a court martial (those that deal with the military). This means that he decides if a crime gets brought to a criminal court, and what crime a person gets slapped with. This power is also covered in the Criminal Procedure Code (CPC). Section 376(1) makes the Attorney General the Public Prosecutor of the nation, and he has control and direction of all criminal prosecutions and proceedings conducted under the CPC. The Attorney General can also appoint legally qualified people to be Deputy Public Prosecutors and Assistant Public Prosecutors, who are the ones who will charge criminals in courts all over Malaysia, and are responsible for proving the case. [READ MORE – Here’s what happens in a criminal trial] Since the AG also sits on the Pardons Board of every State in Malaysia, he is also one of the people who decides if a criminal can get a Royal Pardon for the Sultan of that State - and therefore escape punishment for their crime. We’ll get more into how that works in a future article! To do their job, the AG and his Public Prosecutors actually have a pretty wide freedom on whether to charge a person or not, and how serious of a crime to charge a person with - for reasons we’ll look at below. The “badder” you are, the “better” the law will be Under Article 145(3) of the Federal Constitution, the Attorney General has the discretion to charge criminals in court. This discretion allows him to choose whether or not to bring a case to court at all. It helps to prioritize serious cases, put cases that don’t have enough evidence yet on standby, and also throw out frivolous cases. The AG also considers what law to charge a person with. To use an example from Tun Mohamed Suffian (a former Lord President of our Federal Court) - let’s take A, B, and C who were found in illegal possession of a gun. A had a gun license but forgot to renew it, B never had a license but has a criminal record, and C never had a license but is a well-known murderer that very few people are willing to testify against in court. Does the AG have to charge these people equally? This matter came into question in the case of Johnson Tan Han Seng v PP in 1975. Johnson was charged with illegal possession of a firearm, but not under the usual law under Section 8 of the Arms Act 1960 which carries a maximum prison term of 7 years. He was instead charged under an emergency law made for the 1969 riot - Section 8 of the Firearms (Increased Penalties) Act 1971 which has a maximum prison term of 14 years. The answer is yes, if the Attorney General sees fit, he can charge a criminal under a harsher law instead. The AG can choose to charge repeat offenders, or hardened criminals with harsher laws, just like how a judge can decide whether to give the minimum or even the maximum penalty. If you’re wondering how this ties in to our right to equality before the law in Article 8 of the Federal Constitution, you can see it as the Attorney General treating all first-time offenders equally, and all repeat offenders equally. It does not mean that the AG will treat a desperate parent who stole some food the same as a hardened robber with a gun. From that, the AG also has to consider which court to charge a criminal in. This is because the lower courts of Malaysia have an upper limit on the judgments they can give out. For example, a First Class Magistrates Court can only hand out sentences of up to 5 years of imprisonment, or up to RM10,000 in fine as stipulated by Section 87 of the Subordinate Courts Act 1948. Whereas you’ll find that Section 22 of the Courts of Judicature Act 1964 gives the High Court of Malaysia the power to pass any sentence allowed by law. So if the AG needs to charge a death penalty case, he’ll bring it to the High Court instead of a Magistrates Court, but he’ll send a minor crime to a lower court to save the High Court’s time. It’s a powerful and necessary position The administrative work and lawyering aside, the Attorney General of Malaysia is a powerful person. It’s that much more important for this person to be well versed in the law, hence the high requirements to qualify as the AG. However, the AG’s powers are often criticized for being too wide because they can be abused. For example, if the government commits a wrongdoing, then the AG has the power to decide whether to prosecute the government or not. While in the past, the AG was considered to have absolute discretion over his duty to prosecute criminals (Long bin Samat & Ors v Public Prosecutor), the position of law shifted in the case of Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail & Ors to say that the AG’s decisions can be challenged in a court of law by anyone who is affected by that decision. [READ MORE - How do you take the government to court for an abuse of power?] Since GE14, the Pakatan Harapan government has promised to separate the role of Attorney General from that of the Public Prosecutor. In theory, this means that the Attorney General will still advise the government on legal matters, but the power to prosecute people in the courts will rest with the Public Prosecutor instead. So far, the laws around this have yet to be amended, so we’ll have to see exactly how this plays out in future."
"What happens if your opponent doesn't ""show up"" in court in Malaysia? One fine day you were walkin’ down the street, minding your own business, when suddenly, a car hits you. As you lose consciousness, you see someone get out of the car that just hit you, and walk towards you. You wake up later in a hospital, miraculously only having suffered a broken leg. You’re thankful that you’re still alive, but you’re also boiling mad inside, because who swerves onto the sidewalk and hits a pedestrian? Of course, you wanna take the careless driver’s sorry butt to court. You do all the necessary things to start a civil trial, and lo and behold, the other party doesn’t seem to be interested in defending themselves in court at all. The defendant didn’t enter an appearance, which is lawyerspeak for basically responding to a civil suit. [READ MORE: How do you even start suing someone in Malaysia?] [READ MORE: How do personal injury claims work in Malaysia?] So what happens if the other party in a civil suit doesn’t enter an appearance? A defendant (your opponent) who doesn’t enter an appearance when the plaintiff (you) has initiated legal action against them is kinda like not going for your own wedding ceremony. It’s something that’s important, and you should most probably at least enter an appearance. Now, what’s entering an appearance? We’ll have to talk about that before actually going into judgments in default (which is what happens if the defendant doesn’t enter an appearance). Appearance in legal terms doesn’t mean what you see in the mirror The idea is that you can’t just show up in court randomly to have the court hear your case, and that includes the defendant's side. A defendant who enters an appearance basically shows that he or she intends to defend themselves and submit to the jurisdiction of the court. It’s like saying “Aight, I’ll play ball according to the standard rules”. Order 12 Rule 1 of the Rules of Court 2012 provides the modes of entering an appearance. The defendant can enter an appearance and defend themselves either by a lawyer or in person A memorandum of appearance has to be completed and a copy of it is handed to the court If there is more than 1 defendant and they need to enter an appearance by the same lawyer and at the same time, only one memorandum of appearance is needed A memorandum of appearance is basically a document that you need to fill up and it is a request to the court Registry to enter an appearance for a defendant (or multiple defendants). There’s a time limit for entering an appearance for the whole of Malaysia: 14 days. The only exception is: if the plaintiff and defendant are from East Malaysia and live in different Divisions or Residencies. The time limit is then 20 days. If a defendant is late in entering appearance, the plaintiff has the option to apply for what is called a judgment in default of appearance. Judgment in default itself will be discussed below. The defendant has to apply for leave (permission) of court to defend themselves if the plaintiff has entered a judgment in default of appearance. If the defendant enters an appearance after the time limit but before the plaintiff enters a judgment, an application for leave is not necessary. TL;DR: Entering an appearance is a procedure that the defendant has to go through to defend his case, and there’s a time limit to do so. What is a judgment in default of appearance? When a defendant fails to enter an appearance within the stipulated time period after service of writ by the plaintiff, the plaintiff is entitled to obtain a judgment in default of appearance, according to Order 13 rule 1 of the Rules of Court 2012. At the risk of extreme simplification, it’s basically a no-show and the plaintiff gets the win (tentatively). Not entering an appearance is not the only time where judgments in default can be obtained, but these other circumstances aren’t super relevant to our discussion at the moment. So when a defendant fails to enter an appearance, the plaintiff may then “apply” for a couple of types of judgment in default of appearance. The type of judgment you’d wanna go for depends on the type of claim(s) you have. Interlocutory judgment in default of appearance for unliquidated damages and movable property. Unliquidated damages are a sum of money that cannot be determined by simple math (for example, pain and suffering). Movable property just means any property that can be moved from one place to another (for example, mobile phones, clothes). Final judgment in default of appearance for a claim for liquidated damages and for-costs, and possession of immovable property. Liquidated damages are a sum of money whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach (for example, A will get RM 5,000 in case B breaches the contract). For-costs are the costs of going to court and hiring a lawyer, and immovable property is property that cannot be moved, like a house. Final and interlocutory judgment in default of appearance for mixed claims of (1) and (2). What’s the difference between an interlocutory judgment and a final judgment in default of appearance? The difference ultimately comes down to the types of claims. Claims in interlocutory judgments require the court to assess the money for you, and claims in final judgments don’t require the court to assess the money because most of it is clear from the start. Judgments in Default aren’t “invincible” So, you’ve entered a judgment in default of appearance. Don’t be resting on your laurels though, because there are ways to set aside a judgment in default. The defendant can apply to set aside this judgment within 30 days of you serving the judgment on him (Order 42 rule 13) and if he is late, he can apply for an extension of time. The court will consider whether or not to grant him this extension based on several factors such as whether there was any delay in the defendant’s application, whether there were any irregularities in obtaining the judgment in default, and the merits of the case. If the defendant fails to adhere to the time limit and fails to request an extension, you get to keep your judgment in default. Aside from this time limit, the rules on how to set aside a judgment in default vary when there is a regular judgment in default and an irregular judgment in default. A regular judgment in default is obtained by the plaintiff normally without any procedural errors. An irregular judgment in default is obtained when there are errors in procedure in obtaining said judgment, for example, defects in plaintiff’s application for default judgment, or defects in the issuance of service of writ. Before going into the differences between setting aside regular and irregular judgments in default, the general rule comes first. So on top of the time limit rule, the methods of setting aside irregular and regular judgments are: To set aside a regularly obtained judgment in default (all the procedures were complied with), the defendant has prove that there are merits to his case (basically that his defence is worth hearing). The defendant may apply to set aside the irregular judgment ex debitio justitiae (as a matter of right). Since irregular judgment have procedural errors, the defendant can say “How could I accept this judgment when it’s obtained wrongly?”. The court has absolute discretion (they can choose to do it whenever) to set aside or change up the judgment in default if it thinks that it is just (as in justice), as provided in Order 13 rule 8 of the Rules of Court 2012. This position has been further solidified by the case of Tuan Haji Ahmad Abdul Rahman v Arab Malaysian Finance Bhd where the Federal Court held that the court has the power to set side or vary the judgment in default if it thinks that it’s more just to do so, after considering all the factors and circumstances of the case. Judgments in Default aren’t do or die This isn’t the entire story on judgments in default, but it should be enough to give you an idea of what happens if you wanna sue a person and they don’t enter an appearance in court. Pretty much every step of the way involves paperwork (very common in the legal profession). For the plaintiffs out there, you don’t automatically win the case if you enter a judgment in default of appearance, and for the defendants out there, if you are served with a judgment in default, don’t panic, it might look bad but there’s still a chance to turn things around, especially if you move fast."
"Some Malaysians are released after getting arrested for a crime. Here's why We are no strangers to scenes depicted on television of high speed car chases, where policemen brandish guns at criminals and then tackle them before hauling them off in handcuffs. Next thing we know, the scene transitions to one of the said criminals dressed in jumpers, with shaved heads in a court room. Then it becomes a scene in prison before the lead detective spews out a spiffy catchphrase and the end credits roll. We roughly know how criminals are apprehended and what happens to them after but the part that is blurry to us is how a criminal trial works. An example of this would be look at the OUG shooting where a real estate agent was gunned down in Taman OUG over whispers of a business deal turned sour. Eight suspects were initially arrested, which turned into seven of them getting charged and...all of them acquitted (getting off without punishment). However, you might be confused as to why eight arrested people turned into none of them getting thrown into jail. This illustrates that the average Malaysian is not informed of how a criminal trial proceeds in Malaysia. Without further ado, let’s dive into how a trial starts. It starts off with an arrest Most Malaysians would know that arrests happen first but getting arrested doesn’t mean that you are guilty. Getting arrested simply means that you have been accused of, is connected to, or is suspected of committing an offence. The purpose of arresting you is to facilitate the police investigation to determine what offence has been committed and to see if there is sufficient evidence to charge you in court. [READ MORE: How do I know if the PDRM is arresting me?] Getting arrested also doesn’t mean that the police get to keep you indefinitely. Following section 28 of the Criminal Procedure Code (“CPC”), if the police arrested you without a warrant and cannot complete their investigation within 24 hours, and they believe that there are grounds for believing that you might have committed the offence, they have to produce you in front of the Magistrate within the said 24 hours (excluding travel time) to request for a remand order. If you were arrested pursuant to a warrant, the police must bring you to court without an unnecessary delay. Now, what is a remand order? A remand order is essentially an order from the Magistrate allowing for you to be detained longer than 24 hours. The period in which you can be detained for depends on the length of imprisonment of the crime you are being investigated for. [READ MORE: What are your right if you get arrested by the PDRM?] At this stage in time, you are formally known as a suspect. For those who are wondering, if you have not been arrested but have been called in to answer some questions, you are bound to state the truth and answer the questions as well. You can only exercise your right to remain silent under section 112(2) of the CPC if your answer might incriminate you. Okay, assuming that the police has enough evidence after their investigation, the next stage is… You get charged in court We know that the word “charged” is typically seen in news reports but not many of us know what it entails. Getting charged essentially means that police investigations have revealed sufficient information for you to be brought to court and the charge (or charges) against you will be laid out in a charge sheet. As stated in the case of Mohamed Humayoon Shah, a charge sheet is essentially a notice to you of the offence that you have allegedly committed. This is where Form 27 CPC and sections 152-154 lays down how a charge is to be drafted and all the necessary information that must be listed down. At this point in time, you are formally known as the accused. The judge will then read the charge out to you and he will ask you whether you plead guilty or wish to claim trial (plead not guilty). What happens next, depends on what you answer. If you plead guilty, section 173(b) provides that the court can convict you on your guilty plea provided that he determines that you understand the nature and consequences of pleading guilty. In doing so, the judge will look at whether you understand that upon pleading guilty, there will be no trial, you wouldn’t be able to appeal your conviction, and the judge is allowed to pass the maximum sentence on you. Aside from ascertaining that you understand the nature and consequences of your plea, the judge also has to ensure that your guilty plea is unreserved, unqualified, and unequivocal. This means that it cannot be subject to any other conditions. In essence, a plea is unreserved, unqualified, and unequivocal when you plead guilty because you did commit the crime and there were no excuses or other reasons that caused you to commit the crime. To understand how the 3 Us work, let’s take a look at this cases. In Munandu, the accused pleaded guilty to stealing a bicycle but said that he did so because he was drunk and mistakenly thought that the bicycle was his. It was held that his guilty plea was not unreserved, unqualified, and unequivocal because while he admitted to the crime, he did so with the proviso of being drunk at the time. If you claim trial (plead not guilty), the prosecution will then begin its case by laying out all the evidence, calling in witnesses and so on. This is where all the dramatic (or not) examinations of witnesses, evidence, and the accused happens. A criminal trial always starts with the prosecution opening it’s case first. This means that they will present all their arguments and evidence to the judge before you do. Before you yell about how unfair that is, there is a specific reason why trials proceed in this manner. The prosecution has to prove that you committed the crime The first thing the prosecution has to do is prove a prima facie case, and if this is proven, they then have to prove their case beyond reasonable doubt. Dealing with the prima facie case first, prima facie is basically Latin for “on the face of it” or at “first glance”. While there are two different schools of thought as to what amounts to a prima facie case, we won’t delve into that for the purposes of this article. To explain it as simply as we can, a prima facie case is proven when the prosecution has produced evidence to prove every ingredient of the offence, which if you fail to explain, will result in you being found guilty. It will be the judge’s duty to decide after the prosecution has finished presenting their case whether or not they have managed to establish a prima facie case against you. If they managed to prove such a case, the court will ask you to present your case (defend yourself). If they failed to prove such a case, the court must acquit you (clear you of all charges). This is found in section 173(f) CPC: “When the case for the prosecution is concluded the Court shall consider whether the prosecution has made out a prima facie case against the accused. If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal.” Assuming that a prima facie case has been made out against you, you will then have to defend yourself. The trial comes to an end after you finish presenting your defence and the judge will consider all the evidence that has been put forth and decide whether or not the prosecution has proven their case beyond reasonable doubt. If you are wondering what in the world is “beyond reasonable doubt”, it simply means super duper high level of guilt. If we are looking at it in a mathematical sense, the level of possible guilt must hit 99%. This means that if your defence has planted seeds of doubts in the judge’s mind, he is not allowed to convict you as the case has not been proven beyond reasonable doubt. The case of Mat lays it out: If the judge accepts your explanation, he must acquit you. If the judge doesn’t accept your explanation but there is doubt about your guilt because the prosecution’s case is shaky, he must acquit you. If the judge doesn’t accept your explanation and there is no doubt about your guilt, he must convict you. After you have been convicted, the judge will sentence you. The length of the sentence will depend on a plethora of factors which we won’t dive into for this article but it includes, among others, whether or not it is your first offence, your age, and victim impact statement (basically a statement from the victim/their family explaining how their crime affected them). If you confused about how trial works, let’s put this example out for you guys: Ali was arrested for theft. After police investigation, there was enough evidence to charge Ali in court. Ali decides to claim trial. The prosecution opens their case and at the close of their case, the judge decides that there is a prima facie case against Ali. Ali is directed to present his defence. At the end of the trial, the judge considers the evidence put forward by the prosecution and Ali’s defence. The judge decides that Ali’s defence doesn’t make sense and the prosecution has proven beyond reasonable doubt that Ali has committed theft. The judge sentences Ali to jail. There you have it folks. The above is a brief overview on how criminal trials work in Malaysia but… That’s not everything All the above steps show why sometimes, an arrest doesn’t result in people getting thrown in jail. There are steps to adhere to, investigations to gather evidence, and most importantly, a court hearing to see if you have actually committed a crime. In fact, there are plenty of other things that happen alongside a criminal trial or in a criminal trial (such as bail requests and appeals) that will be covered in separate articles. For now, we hope that this article shows that there are plenty of steps involved in proving a crime and an arrest is just the first one."
"A beginner’s guide to terms used in the Malaysian stock market This article was written by Dinesh Sadhwani, a practicing advocate and solicitor of the High Court of Malaya. ""Risk comes from not knowing what you're doing."" – Warren Buffett Imagine that a friend tells you about the proposed initial public offering (IPO) of a company. The company plans to list on Bursa's Main Market and, according to the company’s prospectus, it has a promising future. You are very excited as you have just received a substantial annual bonus and wish to make good use of this money, and making your first investment in the stock market sounds like a good start. But there’s one problem – you don’t know what any of those terms mean. If this sounds familiar, you are not alone. In this article, we will discuss some of the general concepts and phrases that are commonly encountered in the stock market. To make it easier to understand and more interesting, we will discuss the concepts and phrases based on the chronological life-cycle of a typical public listed company in Malaysia. Before we begin, one point to note - while most stock market concepts may inherently be commercial or financial in nature, the concepts are also subject to various Malaysian laws and rules (e.g. Companies Act 2016, Capital Markets and Services Act 2007 and Bursa's Listing Requirements) that apply to companies and the stock market, which won’t be fully addressed here. Initial Public Offering (IPO) An IPO means that the company is not yet listed on the stock exchange and is now seeking to offer its shares to the public, and have its shares listed on a stock exchange. IPOs are also referred to as ""listing"", ""going public"" or ""floated"". For most companies that are seeking to launch an IPO, this would most likely be their first attempt. Hence, this explains the ""initial"" in Initial Public Offering. However, it need not necessarily be the first IPO for every company. There are some companies which have been listed, taken private (explained further when we discuss take-over offers) and later re-listed again. Prominent examples of this in Malaysia would include Maxis, Astro and Malakoff. Another important point to note is that an IPO involves an issuance of new shares by the company to investors (here the proceeds will be paid to the company) as well as a sale of existing shares that are owned by the existing shareholders to investors (here the proceeds will be paid to the respective selling shareholders). Bursa Bursa Malaysia Berhad (BMB) is a company that owns Bursa Malaysia Securities Berhad (BMSB). BMSB operates the Malaysian stock exchange, which comprises 3 markets - Main Market, ACE Market (mainly tech-based companies), and the newly launched LEAP Market (mainly SMEs). To make it more interesting, BMB itself is also listed on the Main Market. You may find this odd at first glance, but it is not uncommon for a stock exchange owner to also be listed, usually on its own exchange. We can find examples of this in other countries such as Singapore (SGX), Australia (ASX) and USA (NYSE). Securities Commission (SC) The SC is the Malaysian securities industry regulator. In other words, the SC monitors the capital markets to ensure that the laws which come under SC's jurisdiction (particularly the Capital Markets and Services Act) are complied with. SC also processes applications involving capital market transactions where SC's approval is required under the law - this includes Main Market IPOs. Principal Adviser (PA) The PA will usually be an investment bank or corporate finance adviser that is engaged by the company to advise on the IPO. In addition to the PA, the company will also usually engage other advisers (lawyers, reporting accountants, etc). Retail Offering This is the part of the IPO that will be offered to retail investors – basically individuals like you and me. As there are limited shares allocated for every IPO, your application may not be successful and, even if it does succeed, you may not be allocated all the shares you applied for – especially if there is strong interest in the company's IPO. Institutional Offering This is the part of the IPO that will be offered to institutional investors i.e. these are usually insurance companies, pension funds, retirement funds and investment funds. Some of the major institutional investors in Malaysia may sound familiar to you, such as EPF, KWAP and PNB. Underwriting Arrangement Before explaining this, one crucial point to appreciate about IPOs is that they are dependent on market conditions or investor sentiment. If insufficient investors apply for the IPO, the IPO will be under-subscribed and the company will not be able to raise the amount of funds that it has targeted to raise. Hence, as part of its IPO, the company will enter into an underwriting arrangement with an investment bank – which is usually the Principal Advisor (see above) or also referred to as the underwriter in this context – whereby if all or part of a certain block of the shares are not subscribed by investors, the underwriter will purchase those unsubscribed shares. The company will have to pay an underwriting fee or commission to the bank for giving this assurance. Placement Arrangement A placement or book-building arrangement is basically where an investment bank – again usually the Principal Advisor or also referred to as the placement agent or book-runner in this context – will assist the company or selling shareholders in ""placing out the shares"" i.e. finding buyers for a certain portion of the shares offered under the IPO. The placement agent will usually do this by conducting a ""book-building"" process, such as taking orders for the shares from interested investors, which will typically include the placement agent's corporate and high net worth individual clients. Similar to an underwriting arrangement, the placement agent will receive a placement fee or commission. Prospectus A prospectus is a document that a company is required to issue when it launches its IPO. The document will contain various information on the company, including its business, directors, shareholders and future plans and the risks involved in investing in the company. The average prospectus usually runs into few hundred pages - so you can be forgiven for not reading or looking at this document. However, it is advisable to read and understand the important parts, including the risks involved. Bonus Issue Let's imagine you were successful with your IPO application and decide to hold on to your shares. Six months after the listing, the company announces a bonus issue. This means that the company will issue new shares to its shareholders - for free! Before you get too excited, remember one thing - while shares under a bonus issue are free, the value of your holdings will not change (ignoring any movement in the price of the company's shares from the bonus issue announcement date until the bonus shares issue date). Let's say you hold 1,000 shares in the company and the market price of the shares when the bonus issue was announced was RM5 per share or a total of RM5,000. If the company announces a 1-for-1 bonus issue, each shareholder will receive 1 new share for every existing share. In your case, you will receive 1,000 new shares and end up holding 2,000 shares. When the bonus shares are issued to you and listed, you will see that the company will adjust the price of its shares to RM2.50 (ignoring any change in the price since the announcement). In other words, your 2,000 shares are now still worth RM5,000. Rights Issue Two years after the IPO, everything goes well and the company has fully utilised the IPO proceeds but needs more funding to expand further. So the company announces a rights issue. Under a rights issue, a company will offer its existing shareholders the opportunity to subscribe for new shares in the company, pro-rated to their existing shareholdings, at a discount to the market price. In this case, the company offers shareholders the opportunity to subscribe for 1 new share for every 1 existing share that the shareholder holds. Subscribing for a rights issue is not mandatory but you must remember one thing - if you do not participate in the rights issue, you will be ""diluted"". What does this mean? Think of it this way - if a company has a total of 100 existing shares and you hold 10 shares, this means that you hold 10% shareholding in the company. If the company decides to do a 1-for-1 rights issue and issues another 100 shares, you are entitled to subscribe for 10 new shares and will end up holding 20 shares out of 200 shares or 10% of the company's enlarged share capital. What will happen if you don't? You will hold 10 shares out of 200 shares i.e. 5% of the company - in this case, your interest in the company will drop from 10% to 5% – meaning you have been diluted. You may be wondering - what will happen to your portion of the rights issue if you do not take it up? The other shareholders can apply for extra shares, which will be allotted to them if you do not take up your entitlement. Also, as with an IPO, the company will appoint an underwriter (discussed above) to take-up shares that are not subscribed. Private Placement Two years after the rights issue, the company is doing so well that it announces that it again needs further funding. It now decides to do a private placement. This is not very different from a rights issue in the sense that it also involves the issuance of new shares. However, unlike a rights issue which involves a subscription by existing shareholders, shares under a private placement are usually issued to selected investors (who may or may not be existing shareholders of the company) by way of a book-building process (similar to the placement arrangement we discussed). You may be wondering - why would a company by-pass its shareholders and not do a rights issue and instead raise funds from selected parties through a private placement? There are many reasons and this would require a separate discussion, but one quick reason - compared to a rights issue, a private placement can generally be implemented fairly quickly as the regulatory requirements are relatively less demanding. This shorter timing is crucial if the company urgently needs the funds. Take-over Offer Five years after the company's IPO, the company's founders and major shareholders (who have collectively held 60% shareholding since the IPO) announce a voluntary take-over offer for the company. What this means is that the major shareholders offer to purchase the balance 40% shareholding in the company and intend to de-list the company from the stock exchange. Two questions probably pop-up in your mind: Can they force the 40% to sell? Why would anyone go for a IPO only to later de-list? The answer to the first question is that it depends on whether the major shareholders can secure enough acceptances from the 40%. If at least 90% of the 40% accept the offer, the major shareholders can seek to compulsorily acquire the dissenting / remaining shareholders' shares. As to the second question, there are various reasons. One reason could be that the shareholders believe that the company's share price has fallen to an attractive level and it is a good opportunity to privatise the company - and possibly re-list it later when market conditions are right. Stock market terms are constantly evolving We hope this serves as a useful preliminary introduction to general phrases and concepts in the stock market. One thing to bear in mind is that, as mentioned above, the stock market's concepts and phrases are inherently commercial and financial in nature. They may evolve (i.e. new concepts may emerge, old ones fade away and existing ones may transform) as the capital markets evolve. While this article may give you a little more confidence to set foot into the world of stock trading, it’s still a good idea to keep abreast of developments by using various sources which are cheaply and easily accessible."
"Are Malaysian pet hotels legally required to keep your furkid safe?  The holiday season is coming, the jingles are playing in malls, your bags are packed, and your car is all serviced. You are all ready to go back to your hometown and celebrate the festivities with your extended family. As you lug your luggage into the hall, something winds itself between your legs and the realisation hits you like a brick – you forgot about your furry companion. It’s your first extended holiday with a pet and you almost forgot that he can’t come home with you. A slight panic sets in before you remember that there are tons of pet hotels in Malaysia. You Google for one and decide to hit up the one with the best reviews. As you carry your lil tater tot into the hotel, you feel some apprehension setting in. You’ve never been away from him for so long, what if the hotel messes up and something happens to your beloved pet? Or what if they forget that your pet has special needs and he falls ill? Worse, you have read about some pet hotels letting their wards starve to death, what if that happens? Who takes responsibility? You clutch your lil doggo/kitteh closer and wonder if you should just stay home...but there are actually some pointers you can take to make sure that both you and el doggo/catto stay safe during the holidays. Always make sure that the pet hotel is licensed Following the passing of the new Animal Welfare Act 2015 (“AWA 2015”) which came into force in July 2017, individuals and businesses that deal with animals for a living need to apply for a licence from the Animal Welfare Board. This licence is separate from the ones you apply for your pets as a pet owner. The pet hotels are required to display their licence at an obvious part in their hotel. This means that the licence must be visible and easily spotted like on at the registration counter or pasted on the door. This requirement is found in section 20 of the Act and any failure to have a licence can lead up to a RM75,000 fine and/or up to 2 years in jail. Another point to note is that this licence is also non-transferable. This means that if the licence you see displayed at the pet hotel is registered to a different owner/company, you might want to inquire further because it might just be a licence that was forged/”borrowed” from someone else. Section 17 (1) AWA 2015 “A licence under this Act shall not be transferable and no person shall use a licence of another person.” Having a licence is all well and good but if the question you have in mind is how would your furry friend be treated at the hotel, the answer can also be found in the Act. [READ MORE: 5 changes to Malaysia’s animal laws that protect animals better] There is minimum duty that pet hotels have We know that some ways of treating animals may not strictly be abuse, but they are things we would label as “mistreatment” or “unethical”. However, you definitely wouldn’t want to argue technicalities if someone has mistreated your furbaby and this is where section 24 AWA 2015 comes in: “The owner or a licensee shall have the duty to— (a) take reasonable steps to ensure that the needs of an animal are fulfilled, which includes— (i) its need for a suitable environment; (ii) its need for a suitable diet; (iii) the need for it to be able to exhibit its normal behavior patterns; (iv) the need for it to be housed with or apart from other animals; and (v) the need for it to be protected from pain, suffering, injury and disease...” Therefore the law now sets a minimum standard of operation for pet hotels to adhere to during their daily operations. Further to section 24, section 33 makes it an offence for if the pet hotel fails to exercise reasonable care and supervision when it relates to protecting animals from cruelty or ensuring their welfare. This includes ensuring that the hotel itself is a suitable environment for your pets and feeding it proper meals. The subject of meals leads us to one important question… What if my pet has special needs? While section 24 may be well and good for setting a minimum standard of operation, this may not be enough to safeguard the welfare of your furchild if it has special needs. The question then becomes whether the pet hotel owes a responsibility to you to ensure that they satisfy those special needs. This brings us into the realm of contract. While most pet hotels would definitely have their universal contract for every customer, you have the right to vary this contract through negotiations with them. For example, if your dog is allergic to chicken (yes, dogs can get allergic to the food we think they love) and the pet hotel only serves chicken kibble, you can inform them before hand of your pet’s allergies so that they can take note of it. It is through this notice that you add an additional term into the existing contract. The same goes for any other kind of special needs that your pet may require such as more exercise time, medication to be taken at certain times, or even if your pet should not be allowed near other pets because he isn’t that sociable. If the pet hotel then breaks this new “term”, they can be liable for a breach of contract. If you are fretting because you have left your pet in a hotel and only verbally informed them of its special needs, don’t worry. The law does recognise the existence of oral contracts and collateral contracts (which is basically an additional oral contract that varies your written contract). Even if you fail to establish a contract, you might have room to sue them under the tort of negligence if they fail to heed your instructions as to your pet’s special needs. [READ MORE: What is a tort?] [READ MORE: How was the tort of negligence created?] Negligence is a viable avenue here as the pet hotel, in accepting your pet as a boarder, has accepted a duty to care for your pet during the duration of its stay. Since they now have a duty of care over your pet, the law requires them to take reasonable steps to care for your pet, failing which, they can be guilty of negligence. With the above being said, it is always best to ask if the pet hotel can accommodate your special needs before boarding your pet there. This is because there may be certain pet hotels which are not equipped for your needs. Given this, you should also be prepared for anything that may happen. Before agreeing to board your pet in the hotel, you should ask the manager if they have any emergency protocols in place for if your pet falls ill. Check before hand about how they would go about handling emergencies, which vet they would go to, and whether or not you give them permission to make medical decisions on your behalf if you are uncontactable. Who do I blame if my pet falls sick/gets injured? A quick look around some of the pet hotels’ websites showed that their terms of service specify that all potential boarders must have their full vaccinations. They require you to produce proof of your furkid’s vaccinations before they agree to board them. This means that most pet hotels do take reasonable steps to ensure that a mini epidemic doesn’t break out within their walls. With this being said, if your furkid does fall sick after a stay there, there may be 2 avenues for you to look at (subject to the special facts of your case): The pet hotel was negligent in making sure that all the pets were actually fully vaccinated. The pet hotel was not negligent – you might have to look for the owner of the pet which caused the outbreak and depending on the facts, there might be room for an issue in negligence against the pet owner. If your pet falls sick because of mistreatment (instead of contracting a disease from another pupper/catto), then you can most probably bring an action against the pet hotel and lodge a report to the Animal Welfare Board for their failure to comply with the Animal Welfare Act. A question that might pop into your head now is...what if my dog gets attacked and injured by another pet? Who is responsible then? This is where it gets tricky because there are many scenarios that may lead to this. If it does happen, the first thing is to get as many facts as possible. If you had requested for your pet to be housed separately but the hotel failed to do that, you might have a similar action for breach/negligence. The same applies if the pet that attacked you was supposed to be kept separately and they failed to do so. This leads us to a very important question… What happens to my pet if the hotel is raided? If the hotel is unlicensed or the authorities find that there is evidence of abuse, they are allowed to raid the hotel under section 40 AWA 2015 and in addition to this, section 41 allows them to enter the pet hotel to examine the animals and/or the pet hotel’s records. If the animals in the hotel are in distress, section 34(4) allows the animal welfare officer to take the animals into possession if he thinks that the animal is suffering or is likely to suffer. The animals would then either be cared for at the hotel itself or be removed to a safe location: Section 34(6): “If any animal is taken into possession under subsection (3), an animal welfare officer may— (a) remove the animal or arrange for it to be removed, to a safe place; (b) care for the animal or arrange for it to be cared for— (i) at the premises where the animal was placed when it was taken into possession; or (ii) at any other place as the animal welfare officer thinks fit...” If your petto has been taken away by the animal welfare officers, they are under an obligation to inform you of what has happened (section 34(8)). With all the above, if you ever run into an unscrupulous pet hotel, you can submit a complaint to the Animal Welfare Hotline through their number 019 224 2233 and/or email them at pro.dvs.gov.my. You can also get further information from the Malaysian National Animal Welfare Foundation and they even have a full list of local authorities, veterinary departments, and animal shelters for your information. As a pet owner, you should also do your part by ensuring that your furkid is up to date on all his vet appointments, that you inform the pet hotel of all their needs, and provide them with all your contact numbers for emergencies. Further to that, if you have any pet hotels to recommend, let us know in the comments!"
"Is it illegal for Malaysians to gamble at home? There’s the common perception that gambling is illegal in Malaysia, and that’s true to a large extent. There are exceptions, like the casinos up in the Genting Resorts, and the good ol’ Toto, Magnum and Damacai that have licenses granted by the Minister of Finance. Did you also know that illegal gambling dens exist in Malaysia? The police were active in cracking down on these gambling dens at the end of last year. We’ll soon find out that not only can the patrons be charged with a crime, but the owners can be, too. Now that Chinese New Year is around the corner, we’re pretty sure that there’s gonna be an increase of “chor dai di” playing among family and friends. What are the laws that govern gambling in Malaysia, and can you be arrested for a friendly game of poker in your own home? There are Malaysian Acts of Parliament specific to gambling An Act of Parliament basically just means law, in fancy language. The Common Gaming Houses Act 1953 and the Betting Act 1953 deals with illegal gambling in Malaysia, centered around the concepts of “betting houses” and “common gaming houses”. A betting house is where people place bets on things like horsing races or sports events, and organize illegal lotteries. A common gaming house is more relevant to our discussion in this article, because common gaming houses are places that host more “casinolike” games like roulette and poker. That’s why from now onward, we’ll almost exclusively refer to the Common Gaming Houses Act 1953. Section 3 of the Common Gaming Houses Act 1953 straight up declares these houses as nuisances and are “contrary to the law”. Their existences are not tolerated at all by the authorities. Owning and ‘investing’ in a common gambling house Section 4 of the Common Gaming Houses Act 1953 sets out offences that relate to owning or occupying the common gaming house. The section has a few subsections, we’re just gonna have a taster here: 4. (1) Any person who— (a) being the owner or occupier or having the use temporarily or otherwise thereof keeps or uses a place as a common gaming house; or It’s supposed to be a catch-all subsection that is targeted at anyone who might be operating an illegal gambling den. Some examples of offences under section 4 include owning or occupying common gaming houses, and publishing advertisements for the gaming house, and the like. Offenders can be liable for a fine between RM 5,000 and RM 50,000 AND a jail term of up to 3 years, with additional punishment for each gaming machine (like slots or the roulette). What if the someone doesn’t own a betting house, but is akin to an ‘investor’ of the common gaming house? Section 5 states: 5. Any person who advances or furnishes money for the purpose of establishing or conducting the business of a common gaming house or for the purpose of a public lottery or who profits from the establishment or conduct of such business shall be guilty of an offence... These investors commit an offence by funneling money into the establishing and the conducting of a common gaming house. Not even people who make or supply gaming machines are spared. Section 4a says that anyone who deals in or manufacturers or assembles gaming machines (it can be gambling equipment, or those gambling arcade machines, or slot machines) commits an offence, and can be punished with a fine between RM 10,000 and RM 100,000 and a jail term of up to 5 years. It can be difficult to catch gambling dens in action, so to facilitate the process of capturing common gaming houses, Malaysian authorities are allowed to make certain presumptions regarding certain facts. For example, section 19 of the Common Gaming Houses Act 1953 allows the assumption to be made that if a house or a premise has materials that allow for gaming/gambling, and operates as a common gaming house would, it is a common gaming house until proven otherwise. An example would be if a house has a couple of slot machines, a poker table and decks of poker cards, maybe a stash of poker chips, it would be assumed that this house is a common gaming house. It doesn’t have to look straight up like a casino, as long as it looked like gambling was being done, the house or premise may be regarded as a common gaming house. Gaming offences Now we come to the actual offence of participating in gambling in a common gaming house. According to section 6(1) of the Common Gaming Houses Act 1953, anyone who games in a common gaming house is guilty of an offence, and shall be punished with a fine of up to RM 5,000, a jail term of up to 6 months, or both. Gaming is defined in section 2 as: ...the playing of any game of chance or of mixed chance and skill for money or money’s worth and includes the playing of any game specified in Column I of the First and Second Schedules and the playing or operation of any gaming machine… Gaming can mean many of the common gambling games such as poker, blackjack, and roulette, but the First and Second Schedule of the Act has a list that include some of the less commonly known games, like “Tau Ngau” and “Ewok” (Not to be confused with the Ewoks from the Star Wars movies). It’s also an offence to gamble in public, according to section 7(1) of the Common Gaming Houses Act 1953. 7. (1) A police officer may arrest without warrant any person found gaming in any public place and may seize all instruments or, appliances for gaming found in such public place or on the persons of those arrested under this section. In fact, the cops can arrest you and your friends without a warrant if you play blackjack in public. They’ll confiscate your deck of cards, too. Anyone liable for gaming in public may be fined up to RM 5,000, imprisonment of up to 6 months, or both. Even if you were gambling without money but other items at stake (maybe a phone, or a watch) or even if you use things to represent money (like peanuts), it still counts, as stated in section 7(3). You might be wondering if the police need a warrant to search premises or people that they think are common gaming houses or patrons, respectively. They do in fact require warrants to raid suspected gambling dens or gamblers. According to section 16 and 17 of the Common Gaming Houses Act 1953, if a Magistrate, or Justice of Peace or a senior police officer receives written reports of a suspected premise or person, they may make any enquiries that are necessary. These figures of authority may then issue a warrant to enter and search premises, and/or search individuals and seize anything that is connected to gambling. Syariah law applies to Muslim folks on top of civil law In addition to the secular laws stated above, the Muslim community in Malaysia are also subject to Syariah law, which is documented in the Syariah Criminal Offences Enactment 1996. These Syariah laws vary from state to state, for example, the Syariah Criminal Offences (State of Penang) Enactment 1996 holds that if a Muslim is caught gambling, they can be subjected to a fine up to RM 3,000, imprisonment of up to 2 years, or both. In Pahang, a Muslim’s mere presence in a place for gambling warrants the same punishment. There are minor differences in each state’s Syariah enactments on gambling, and each state has an Islamic Religious Affairs Department, whom among other agencies, enforces Syariah law. Even Muslim tourists are subject to these laws. It’s still gambling if you do it at home It might sound weird, but yes, if you and your friends and family play poker at home and there’s money (or other valuables at stake): Your house is technically considered a common gaming house, in that period of gambling You and your friends and family who participated in the poker game that involved money have technically violated section 2 Unless you’re using tokens like peanuts for fun and don’t actually exchange them for cash later, you could get into trouble with Section 7(3). But wait, there’s more! You’re technically not breaking any Malaysian laws if you gamble online, because most, if not all online gambling sites are hosted in other countries. The Home Minister, Datuk Seri Dr Ahmad Zahid Hamidi, said in 2017 that the Malaysian government is trying to set up preventative measures against online gambling. We’ll leave you with this really interesting piece of trivia. There is one other place than Genting Highlands that has a gambling license, and would you believe it, it’s in Ipoh. The Han Chin Pet Soo was a clubhouse for Hakka Chinese miners and it was kind of like an old timey Zouk but with more debauchery. The clubhouse was known to play host to vices like gambling, prostitution, opium consumption and the triads. Here’s how you can report illegal gambling The PDRM have released a list of phone numbers that you can report illegal gambling to, with thanks to our friends over at the Enforcement Agency Integrity Commission for sharing it. [READ MORE: Malaysian authorities have to investigate if their officers mess up. But what if they don't?]"
"Why do some Malaysians get arrested for killing robbers in self defense? The laws regarding self-defense in Malaysia is something that many people consider to be unfair, especially when a victim gets arrested after killing or severely injuring the bad guy – the most recent case being a 32-year old man from Johor who was arrested for allegedly killing an armed robber who broke into his home. Whenever something like this happens, it can easily appear as though the law sides the bad guys while victims get “punished” for defending themselves. So here’s the thing... Sections 96 – 106 of the Penal Code actually provides you with a right to defend yourself – even to the extent of causing death in situations of rape, kidnapping, robbery, or arson. This is first stated in section 96 of the Penal Code – Nothing is an offence which is done in the exercise of the right of private defence. However, when you skip a line down to section 97 in regards to rights of private defense of body and property, it also says (in part, with emphasis added): Every person has a right, subject to the restrictions contained in section 99, to defend... Simply put, while sections 96 and 97 state that you have the right to defend yourself against harm to your (and others’) bodies and property, these rights are not absolute – meaning there are conditions and limitations in which they can be used. As our self-defense laws are actually quite wide, this article will only be focusing on why killing an intruder in your house may land you in trouble. But first, let’s clear up a major misconception that can be confusing to many who aren’t familiar with police procedures. Getting arrested does NOT mean you’re guilty The sight of someone being arrested can be pretty dramatic – with the handcuffed wrists, sombre looking police officers, and the walk to the backseat of a patrol car. It probably also doesn’t help that, in most TV shows, this usually signifies that the bad guy has been caught and it’s just a short commercial break until the end credits. So when we see a news report of someone being arrested for killing a robber, accompanied by a picture of the person in handcuffs, it’s easy to assume that the person was guilty and will be facing some sort of punishment. In real life, getting arrested is (very generally) the first of three major steps towards actually being found guilty of any crime. As a quick breakdown, the three steps are: Investigation – The authorities need to gather evidence and statements to form a full picture of what happened. A person may be arrested and detained for a certain period of time to assist in the investigation. At this point, the person is still presumed to be innocent. Charge – The authorities have found enough evidence and the Deputy Public Prosecutor decides to press charges against the person. At this point, the person can be re-arrested or summoned to court. At this point, the person is still presumed to be innocent. Conviction – At the end of the court trial, the judge decides on the verdict. It’s only when the guilty verdict is pronounced that the person is actually guilty. Of course, the law only allows a person to be detained for a certain period of time for investigation purposes, and they are released if no charges are brought against them during this period. You can read more about this in further detail below: [READ MORE: If you get arrested, are you automatically a criminal?] [READ MORE: How do I know if I’m being arrested by the PDRM?] Now that this is clarified, let’s head on to meat of the topic. You can only use “reasonable force” to defend yourself – but what’s “reasonable”? If you remember, we mentioned earlier on that there are some restrictions to your right to self defense under Section 99 the Penal Code. In this article, we’ll be focusing on the two exceptions in section 99 of the Penal Code that are most commonly misunderstood: Section 99 of the Penal Code – Acts against which there is no right of private defence (in part) (3) There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. (4) The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence Simply put, you cannot claim self-defense if you had time to seek protection (such as by calling the police or running to a policeman) or when you used more force than necessary to ensure your safety. While having the opportunity to seek protection is straightforward enough, most of the misunderstanding stems from not using more force than necessary, or reasonable force. The problem with explaining what can or cannot be considered “reasonable force” is perhaps best exemplified by the ridicule directed at lawyer Datuk Haaziq Pillay when he tried to explain the concept during an interview on TV3: ""Let’s say, if the intruder only wields a small knife but I (the victim) have a gun in my hand, then that is not fair. Also, I should be able to call the police or escape from the scene if the intruder only comes at me with a knife. Under the law, the victim has to be in a real apprehension of fear of themselves or their family's lives for them to be able to kill the intruder."" – Datuk Haaziq Pillay, in interview with TV3, quoted via Says.com Why reasonable force can be hard to explain in a few sentences is because it’s highly situational and is evaluated on a case-by-case basis. It's very important to note that there is no one-size-fits-all scenario or explanation. Whether or not the authorities decide to take action against you depends on the outcome of their investigation - called the facts of the case. “Ultimately, the courts would look at the specific facts and circumstances on a case-by-case basis. What the court thinks is self-defence might be not what many people think.” - Sreekant Pillai, Criminal defense lawyer, as quoted by The Sun via The Malaysian Bar. We will look into how different scenarios can lead to different outcomes in the point below. So does that mean you really need to compare knife sizes? -_- It would be quite silly to assume that if you were to be faced with a knife-wielding robber, the first thing you’d do is to compare blade length or keep track of how injured he is. This was very nicely summed up in the case of Palmer (1971) AC814 where a man (Palmer) was caught stealing weed and was chased by three people. He fired a gun at his pursuers and killed one of them. In the ensuing trial, UK judge Lord Morris said: ""If there has been an attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a Jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."" What this means is that the law allows you to do what you thought was necessary for your (or other peoples’) safety at that point in time. Whether or not the authorities will agree with your actions depends on the investigation – which brings us back to why some people get arrested for killing a robber. The basic idea behind our self-defense laws is that it’s meant to prevent someone or something from being harmed, not to be a vigilante agent of justice or revenge. If there is time to call the police, or if you’re no longer in a dangerous situation (such as the robber surrendering), any harm that you inflict on the robber cannot be considered self defense. To further illustrate this, let’s use three scenarios where the robber has a knife and you have a gun: Scenario 1 – The robber runs away The robber realizes he’s literally out-gunned and runs away, but you shoot him in the back to prevent him from escaping. In this case, the police might investigate the case as murder (and charge you accordingly) because you were already safe the moment the robber turned and ran – he was no longer a threat and the argument of self-defense may not apply in court. Scenario 2 – The robber tries to attack you You whip out the gun and warn the robber that it’s loaded, but he still decides to lunge towards you so you fire and the robber drops dead. The police may still investigate the case as murder but, depending on the facts of the case, may not file charges or (even if they do) your lawyer can make the argument of self-defense in court – you had to use your gun in order to prevent yourself from getting injured or killed. Scenario 3 – There is a child nearby You have a gun and the robber has a knife, but the robber refuses to back off. All of a sudden, your 3-year old child appears and the robber moves towards the child, so you immediately shoot the robber dead. In this case, you may face a lesser charge or your lawyer can make the argument that you were acting to ensure the safety of the child. Again, these are very general scenarios and actual circumstances may play out differently. So what should you do if you were to overpower an intruder/robber/bad guy? If the suspect is alive but no longer a threat; you should immediately call the police and, at most, tie him up. What you should NOT do is to stab or beat him a few more times for good measure. This is also related to performing a Citizen’s Arrest, where the law allows you to temporarily detain a suspect until the authorities arrive; but you can still get in trouble if you beat up or kill the suspect. [READ MORE: Is it a crime to knock down a snatch thief?] If the suspect is dead, call the police immediately and don’t clean yourself or the crime scene up while waiting for them to arrive. Worse, don’t attempt to hide or move the body and/or weapons as this is a crime in itself. Right to self defense doesn’t give you the right to become Batman At the end of the day, the law has to remain objective regardless of the circumstances – if someone was killed, an investigation is required regardless of whether the victim was a robber or world-changing philanthropist. Otherwise, a writer who just got yelled at by his editor could invite the editor over to his house for dinner, kill him, and claim it was self defense against a robbery. Without a police investigation, it would be the writer’s (badly written) word against a editor who’s too dead to give his side of the story. It’s also a good idea to remember the emergency number “999” or, if you live in Selangor you can download the MyDistress mobile app which sends a one-click GPS-tracked emergency signal to the police. Here’s the link for Android and iOS."
"What are Malaysia's laws on drinking and driving? According to a study done by the Malaysian Institute of Road Safety Research, about 23.3% of drivers in fatal accidents were tested positive for alcohol, according to this study done in 2012. A drunk driver is 13 times more likely to cause an accident compared to a sober one. But we’re not just talking about the traffic accidents caused by drunk driving, there’s are also legal consequences when you drink and drive. Before we get into the specifics of what the legal consequences are if you get caught drunk driving, let’s talk about what constitutes drunk driving. Also, just to preface everything; the police have the right to ask you to take a breathalyzer test if they think it’s reasonable, and you can’t refuse it. We’ll also be discussing this throughout the article. What is drunk driving? Contrary to popular belief, you won’t immediately get into trouble with the police if you’ve been drinking a smidge of that delicious red wine and going behind the wheel. The amount of alcohol in you that’s enough to get you into hot water is covered under section 45G of the Road Transport Act 1987: ―prescribed limit‖ means— (a) 35 microgrammes of alcohol in 100 millilitres of breath; (b) 80 milligrammes of alcohol in 100 millilitres of blood; or (c) 107 milligrammes of alcohol in 100 millilitres of urine. Let’s use the blood alcohol content (BAC) as the standard as it’s probably the easiest to understand. How much do you have to drink to get 0.08% (80 milligrams of alcohol in 100 milliliters of blood) BAC? According to BACtrack, conventional wisdom cites that you’re fine if you down a standard drink per hour. The National Institute on Alcohol Abuse and Alcoholism (NIAAA) defines a standard drink as 354ml of beer, or 148ml of wine. As a frame of reference, 1 pint is 473 milliliters. The numbers can be misleading because different people can reach 0.08% BAC because of different physique and metabolism. The easiest way to know for sure is if you have your own breathalyzer. That brings us to section 45B of the Road Transport Act 1987, which gives power to the police to administer breath tests. Breath tests are not the only way to test for BAC, but they’re the most common one because breathalyzers are portable. Any police officer in uniform can administer a breath test if they suspect: The person has committed an offence under section 44 or 45 or 45A (drunk driving, in charge of vehicle while drunk), or The person has been involved in a traffic accident involving 1 or more vehicle Now that we sort of know what levels BAC will leave a person intoxicated and unable to drive, what are the laws that govern drunk driving? You don’t actually have to be driving the vehicle to get into trouble According to section 45 and 45A of the Road Transport Act 1987, you can commit an offence merely by being in your car if your BAC levels are too high. Both those sections will be discussed shortly. First lets take a look at section 43 of the same Act. Section 43 says that a person who drives ‘without due care and attention or without reasonable consideration for another persons using the road’ is guilty of an offence. Drunk driving is certainly punishable under this section, and if found guilty, offenders can expect to pay a fine of up to RM 10,000 and a maximum period of imprisonment of 12 months. Section 44 of the Road Transport Act 1987 is the most direct way you can be liable for a drunk driving charge. (1) Any person who, when driving a motor vehicle on a road or other public place— (a) is under the influence of intoxicating liquor or drug, to such an extent as to be incapable of having proper control of the vehicle; or (b) has so much alcohol in his body that the proportion of it in his breath, blood or urine exceeds the prescribed limit, and causes the death of or injury to any person shall be guilty of an offence... Basically, if you operate a motor vehicle in any public place when you’re drunk to the point where you can’t really control the vehicle or your BAC levels exceed the legal limits, you commit an offence under section 44. The section is worded in such a way that you’ll be guilty whether you’re OBVIOUSLY drunk and driving, or you don’t look drunk (but your BAC levels exceed the legal limits). Upon conviction under section 44 the offender has to pay a fine of not less than RM 8,000, up to a maximum of RM 20,000 and jail time of a minimum of 3 years. Section 45 and 45A give the police officers certain powers of discretion and are more specifically targeted at people who in charge of a vehicle when they are intoxicated or have BAC levels above the prescribed limit. What does being in charge mean? It is whether the person in the circumstances there is a realistic possibility of the person taking control of the vehicle. For example, a very drunk guy is sitting in his car in a parked position, and not driving it. If a police officer finds him in this situation and either sees that he’s so smashed that he’s not fit to drive, or manages to make the guy take a breathalyzer test and his BAC levels are way off the charts, the guy can be liable under section 45 and/or 45A. If found guilty under section 45 and/or 45A, what awaits may be a fine of up to RM 1,000 and imprisonment of up to 3 months on the first conviction. Subsequent offences will net the offender a fine between RM 2,000 and RM 6,000 and jail time of up to 12 months. Remember though that you won’t be liable under section 45 or 45A if there’s no possibility of you piloting the vehicle. Maybe take a nap in the passengers’ seat instead of the drivers’ seat when you’re drunk. The police can arrest you on the spot if your breath is alcoholicious Yep, under section 45B of the Road Transport Act 1987: (5) A police officer in uniform may arrest a person without warrant if— (a) as a result of a breath test he has reasonable cause to suspect that the proportion of alcohol in that person‘s breath, blood or urine exceeds the prescribed limit; or (b) that person has failed to provide a specimen of breath for a breath test when required to do so in pursuance of this section and the police officer has reasonable cause to suspect that he has alcohol in his body, but a person shall not be arrested by virtue of this subsection when he is at a hospital as a patient. The cops can haul you in if you fail the breath test. Not only that, if you fail to, or refuse to provide your nice fermented breath to the police officer that administered the breath test, they can take you in. To further punish this sort of behaviour, failure to provide a breath specimen when required will net you a fine between RM 1,000 and RM 6,000 and jail time of up to 12 months for the first offence. Subsequent offences will result in a fine between RM 2,000 and RM 1,000, and imprisonment of up to 2 years. If for any reason the courts think that offenders deserve it, their driving licences can also be suspended temporarily or revoked permanently. Don’t drink and drive The Malaysian authorities clearly take driving under influence very, very seriously, and for good reason. As mentioned above, a drunk driver is exponentially more likely to cause traffic accidents, and according to authors Steven Levitt and Stephen Dubner, 21 billion miles are being driven by drunk drivers every year in the United States alone. These statistics are not to encourage people to drink and drive; on the contrary, it is to make people realize how scary reality is. Please, don’t drink and drive. It doesn’t only endanger your life, it endangers other people’s lives. Get a friend to call you an Uber, Grab or taxi to go home if you’re too sloshed to drive. If you know anyone who has problems with alcohol, you can direct them to Alcoholics Anonymous Malaysia’s website here. They are an organization dedicated to helping people who have problems with alcohol, with positive results."
"Have you ever bought a house in Malaysia and had no idea what you signed? It starts off this way – an amazing fairy tale, you grow up, trundle through life, and decide that it is time for you to plant your roots down and buy a house. Maybe you decide to do this on your own or, perhaps, you just got married and are looking for that special home to raise your lil tater tots in. Regardless of your drive to buy a house, you would all go through (more or less) the same process. You stride into a developer’s office/ respond to an ad, view the house, fall in love with it, gush over it, and decide to buy it. You know that buying a house would definitely come with some paperwork to be settled. So, you roll your sleeves up and get to work signing. However, the paperwork never seems to end...you try to read the thick piles of documents handed over to you, ask questions but only receive answers which continue to puzzle you. At one point, you feel your internal self screaming and you give up on questions and just furiously sign everything away. It’s done, it’s over but...what have you done? Now, usually when you buy a house, you would also apply for a bank loan. This article will deal with both sets of documents so let’s start off with the sales part first. PROTIP: If you’re reading this with a bunch of house buying-related documents staring at you, you may want to use CTRL+F to find what you’re looking for instead of scrolling back and forth. Developer’s Letter of Offer (LO) You would most likely be besieged by a whole bunch of documents once you turn to the salesperson and indicate your willingness to buy one of their houses. The first document that you would sign, whether or not it is a purchase from a developer or a sub-sale (basically from a previous home owner), would generally be a letter of offer. To be more accurate, the developer would give you a letter of offer, indicating their willingness to sell you the house and you will sign it to signify your acceptance. In sub-sale cases, this may manifest through a simple form provided by the property agent or sometimes, there is no letter of offer at all. Sale and Purchase Agreement (SPA) Then, the next stage is usually the signing of the sale and purchase agreement. This is usually done in the presence of a lawyer, who will explain the core terms of the contract to you. If you are engaged in a sub-sale, your lawyers will usually hash out the terms of your agreements until both you and the seller agree to the final contract. However, in developer cases, their sale and purchase agreements usually follow the ones set out in the Housing Development (Control and Licensing) Act 1966 and the Housing Development (Control and Licensing) Amendment Regulations 2015. Regardless of which kind of agreement it is, there are several important clauses that you need to take note of/ask your lawyer about. In a quick list, they are: Check the title Your agreement should list down the details of the title to the house. The title is one of the most important parts of the agreement because the title tells you if the seller is the actual owner of the property and whether it is currently charged (simple explanation – a house is charged when it is used for security for loans) to any other bank. In an extrapolation from this, the agreement should also contain a clause that the seller promises to deliver the title to you, in other words, he promises that he will transfer the ownership in the title from his name to your name upon completion of the agreement. Free from encumbrances This means that there must be a clause to clarify that the property will be delivered to you free from any other claims. For example, if the property is currently charged, the seller must promise to clear the charge before the property is delivered to you. Vacant possession This is when you would get the keys to your house. The date is not the only important consideration here, also find out the manner in which vacant possession would be delivered. Common conditions for vacant possession include the house coming with a certificate of completion and compliance (certifying that the house is safe to live in. Read more here.) and water and electricity connection. Defect liability period This is basically a warranty for your house where during that time, the developer would be responsible for defects arising in the house. In contrast, sub-sale homes are typically sold on an as-is basis, meaning you get what you get. Late payment charges/liquidated damages The first relates to the any late payment interest that you would be liable to if you fail to pay the developer/seller in the stipulated time. The second relates to if the developer/seller fails to deliver vacant possession at the agreed time and he has to pay you damages. Area of your house This sounds like a dumb thing to take note of but it is important to take note of especially in developer sales. This is because the measurements that you would see in your agreement’s schedule is subject to final measurement and should there be any significant reduction in size, an adjustment sum can be paid by the developer. House plans This can be found in the First Schedule for developer sales and is basically shows you the layout of your house and the designs. Payment schedule This is typically found in the Third Schedule for developer sales and it tells you when you have to pay and how much. If you have a 90% loan, you won’t have to worry too much about this part because the bank and their lawyers will be responsible to arrange the payments but information is always good to have. Deed of Mutual Covenants (DMC) This is usually only found for strata properties where the deed of mutual covenants acts as a set of rules/promises that all the homeowners in that property make to each other. It is signed alongside the sale and purchase agreement and can cover things like how many pets you are allowed to have, what kind of renovations you can carry out in your property and so on. If you are wondering what’s the use of it, it’s basically to create those perfect little suburban communities that you see on TV. Memorandum of Transfer (MOT) A memorandum of transfer is used to transfer the ownership in the house from the developer/seller to you. For developer cases, it may or may not happen at the time you purchase the house because houses which are still under construction may not have their titles issued yet. However, it is not cause for worry because when the title is issued, the developer will contact you to sign the memorandum of transfer. Bank’s Letter of Offer (LO) The bank’s letter of offer is similar to the developer’s letter of offer and it’s issued when the bank’s approves your loan application and offers you a certain sum, at a certain interest rate, to be repaid within a certain number of years. Facilities Agreement (FA) A facilities agreement is the main loan agreement and it doesn’t relate to the facilities you will receive at your new home. It basically refers to the money that the bank will loan to you. Generally, the bulk of its terms do not vary between borrower to borrower. What is different for your case, or what terms apply for your loan will generally be found in the letter of offer. This letter of offer will then be attached to the facilities agreement. Deed of Assignment (DOA) The deed of assignment is basically a document that assigns your rights and interests in the property over to your financier for the duration of the loan. This is where the every day understanding of security in return for money comes from. The money aspect is found predominantly in the facilities agreement while the security aspect is in the deed of assignment. An important point to note is that if there is one borrower but two purchasers, both the purchasers will still have to sign the deed of assignment and power of attorney (we will come to this in a bit). We know this sounds confusing because if you are the borrower, why does your wife/husband/sibling/co-owner have to sign bank documents as well? Does this make them liable to the bank too? This is the logic behind it – because the property is being used as security, all the owners to the property must consent to the house being used as security and, subsequently, they must also agree to transfer their rights and interests under the property to bank as well. This is known as a third party loan. Where the purchasers are the same people as the borrowers, it is called a first party loan. To illustrate this, let’s look at some examples. Ali and Siti buy a home under both their names. Ali and Siti both apply for a bank loan under their names. Both of them must sign all the sale and purchase documents and the loan documents. This is a first party loan. Ah Chong and Ah Mei buy a home under both their names. Ah Chong applies for a bank loan under his name alone. Ah Chong and Ah Mei must both sign the sale and purchase documents and part of the loan agreement. Ah Chong signs the facilities agreement on his own because he is the sole borrower. This is a third party loan. Power of Attorney (PA) A power of attorney is essentially a document that allows the bank to deal with your property on your behalf. This is to facilitate the bank having security in return for the loan they borrow to you. Similar to the deed of assignment, all purchasers must sign this document. Memorandum of Charge (MOC) Remember the memorandum of transfer that we talked about earlier? We mentioned that whether or not a memorandum of transfer is signed at the point of purchase depends on whether the title to the property has been issued. Similarly, whether or not a memorandum of charge is signed at the point of purchase depends on whether the title to the property has been issued. If a title has been issued, then you will sign a memorandum of charge in lieu of the deed of assignment and power of attorney. In essence, the MOC has the same purpose as the DOA and PA wherein it’s an instrument wherein you provide security to the bank with. The MOC is where your charge the property over to the bank in return for the money they will give you. If you have made it this far, rejoice because all the major documents involved in a land sales have been dealt with. However, there are still some tiny details here and there which we will deal with after we explain what documents you have to sign with and without the title. With title With the title, you will sign both the letters of offer, SPA, DMC, MOT, FA, and MOC. Without title Without the title, you will sign both letters of offer, SPA, DMC, FA, DOA, and PA. The MOT and MOC will be signed at a later period when the title has been issued. Statutory Declarations You would possibly sign a few statutory declarations in the course of buying and getting a loan for your house. Statutory declarations are basically declarations you make officially and in a way, carry more oomph than a normal declaration. Common declarations in this transaction will be declarations that you are not bankrupt or declarations that you would use the property for your own occupation. Stamp duty This is not a document you have to sign but it is a what you have to pay when you stamp your documents. If you are utterly confused, stamping a document is not the stamp you affix on a letter to send it out. Stamping is basically a process you do to make sure that if you ever go to court, your documents can be admitted as evidence in court. The amount you have to pay for stamp duties varies with the documents. For example, the nominal fee is usually paid for statutory declarations while the stamp duty for the facilities agreement depends on your loan sum. There is also stamp duty to be paid upon signing the MOT, which would depend on the value of your house. Well, that’s it. All the documents (or information) that are listed above are basically the essential things you need to know as someone who is buying property in Malaysia. If you have any further questions, don’t forget to direct them to your lawyer as they are there to help explain things to you guys and also highlight any special clauses or terms in your contract. If you want to impress your friends by being able to efficiently read any form of contract, check out our guide below [READ MORE: How to not fall off your chair when given a 50-page contract]"
"If you get overcharged for nasi campur, can you refuse to pay? It’s lunch time. You want a delicious and filling meal that’s not too expensive. So what better place to go than your nearest mixed rice or nasi campur shop? They usually have a wide selection of dishes, are pretty delicious, and usually cheap. Usually, while there’s usually some sort of difference in pricing like the Uncle charging you RM 5 one day and RM 7 the next day for the same dishes, there have been reports of people being charged RM35 or even RM100 for their meals! So is there some secret system that they use to calculate the price of our food, and wouldn’t it be better if they just displayed the prices to begin with? You might be surprised to learn that mixed rice sellers who don’t put up their prices are breaking the law every day. Food is a “price-controlled” item, which means... When costs rise and start burning holes in our wallets, food is one of of the first things to get expensive - one of the reasons is apparently because some shops take the opportunity to hike prices up by ridiculous amounts. Sugar goes up by only 10 sen per kilogram, but a cup of teh tarik goes up by 20 sen instead?? This was why the government had to pass the Price Control and Anti-Profiteering Act 2011 (PCAPA), which makes it illegal to take an unreasonably high profit. Food is one of the price-controlled items listed in the Price Control and Anti-Profiteering (Mechanism to Determine Unreasonably High Profit for Goods) Regulations 2016 - which is a regulation under the PCAPA. It’s compulsory for shopkeepers to display the prices for price-controlled goods under Section 9(1) of the PCAPA. They must be put on display clearly for customers to see, and failing to do so can incur the penalty under Section 57 - up to RM50,000 in fines and/or up to 2 years of prison for individuals, and up to RM100,000 in fines for companies. Repeat offences may get charged up to RM100,000 in fines and/or up to 5 years of prison for individuals, and up to RM250,000 for companies. Section 9(1) - Price Control and Anti-Profiteering Act 2011 “Any person who offers to sell any price-controlled goods or offers to supply any charge-controlled services shall display a list of the prices of the price-controlled goods or the charges for the charge-controlled services in a conspicuous position easily read by any person intending to purchase such goods or services.” The Price Control Order (Indication of Price by Retailer) 1993 also directs “retailers” to use price tags, which must be clearly visible to customers. We say “retailer” because there’s a specific meaning for this law, which includes sundry shops, wet markets, hypermarkets, mini marts, and even kiosks. Offenders can be fined up to RM50,000 and could be jailed for up to 2 years if they’re individuals, and companies can get fined up to RM100,000. Now that we’ve covered the fact that prices must be displayed and realized that a lot of shopkeepers are breaking the law, there’s still the fact that food is a “price-controlled item”. Does this mean that mixed rice shops can’t charge above a certain price? The name is a bit misleading but the regulation works a bit like a “profit-control”. Under the Price Control and Anti-Profiteering (Mechanism to Determine Unreasonably High Profit for Goods) Regulations 2016, food and beverages, household items, and personal care products are all price-controlled. There’s a list of examples at the linked site, but what this means is that traders can’t make an excessive profit on those items. There’s no specified profit limit in the regulation, but it keeps traders from charging you an extra 50 cents on one piece of bread even when flour only went up by 20 cents per kilo. The regulation uses a method of calculation that is beyond our scope to fully explain, but basically they calculate the percentage of profit on an item at the beginning of a year. Traders are not allowed to exceed this profit percentage for the rest of the year. So if their costs increase, they can increase prices, but it has to comply with the profit limit set for that year. Can I insist on not paying if I get overcharged? In contract law, a lot of things depend on exactly what happened and how it happened, so it’s often difficult to get a straightforward answer - which is also why your lawyers say “it depends” a lot. But as a general rule, when two people want to form a contract, like to trade Ringgit for food, there must be something between them called consensus ad idem. In plain speak, this means that they agree upon the same thing, with the same understanding (Section 13 of the Contracts Act 1950). As an example, say you want to buy “one rice” thinking that you’ll get one kilo, but the shopkeeper hands you one bag instead. You agreed to buy rice, but you didn’t understand each other in the same way. So when you buy mixed rice, you have not agreed on any price, so it could be argued that there is no contract - and you can either negotiate or walk away if you don’t like the price you get. But that’s assuming that you haven’t actually eaten or used the item… But what if they only charge me after I’ve eaten? When getting nasi kandar, we sometimes only get quoted a price after we’ve taken the food and started eating. In this scenario, it’s hard to walk away since you’re already eating. But even in this case, you have a way out. The law you’ll be relying on in this scenario is Section 36 of the Consumer Protection Act 1999, where subsection (1) states that: “Where goods are supplied to a consumer, there shall be implied a guarantee that the consumer shall not be liable to pay to the supplier more than the reasonable price of the goods…” So unless you agree to pay, subsection (2) allows you to refuse to pay more than the reasonable price (but you don’t get any other option). As for how much is a “reasonable price”, subsection (4) says that it depends on the circumstances, unless the price is fixed by law. Even RM100 can be reasonable for nasi campur if the owner’s cost was also really high. In practice, it’s better to agree on a better price rather than drag it out to the consumers tribunal. It’s quite unlikely, but if you can’t resolve the matter and the shop refuses to let you leave, call the police. If you’ve been duped, here’s how you can lodge a complaint If you’ve been overcharged for nasi campur, you might be able to argue that the unreasonable price is an “unfair contract term”. It’s covered under Part IIIa of the Consumer Protection Act, and covers situations where the shop might be in a position to take advantage of you - like not telling you the prices beforehand, or only quoting you a ridiculous sum after you’ve finished eating. Where do you bring this issue? The Ministry of Domestic Trade, Co-operatives and Consumerism (KPDNKK). You can lodge your complaint in any of the following ways. Call the 1Malaysia One Call Centre (1MOCC) - 03-8000 8000 Call the Information and Strategic Operations Movement Center (PIGOS) - 1-800-886-800 Use the Smartphone App Ez ADU - Link for App Store - Link for Google Play Email e-aduan@kpdnkk.gov.my SMS 15888 and type in your complaint details Submit a e-complaint with the Ministry Make a report at any KPDNKK office nationwide. It’s great to know your consumer rights and how to exercise them. When it comes to food though, it’s probably not worth your time to sue someone over RM10, so you might want to just exercise your right to refuse to pay more than the reasonable price. One precaution you can take is to ask the price before you start eating, and if the shop tries to overcharge you, you’re not yet bound by a contract - so you can walk away."
"Can the PDRM use torture to make you admit that you committed a crime? The feature image above depicts a case of police brutality, which is unrelated to the topic of this article. You can read about that specific case here. If you’ve heard stories or seen movies with good cop/bad cop scenes in them, coercion or even physical violence may be sometimes involved in extracting information and confessions out of accused or suspects. Now, the questions are: can the police beat a confession out of you, and can the confession then be used against you in court? To find out, we must examine a few Acts of Parliament that’s gonna help shed light on the situation. Before that, a confession that people might understand from watching TV or movies may be very different from its actual legal definition... What is Confession? Not to worry, the definition of confession can be found in section 17(2) of the Evidence Act 1950: ...is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence. It’s an admission by the suspect that suggests or outright states that they’ve committed the crime or offence. The way to recognize if a statement is a confession is if you were reading the statement the suspect made and taking into account he was not coerced or duress, you’re like “Damn, this guy did it”. For example, if Ah Chong said “Alright, I did it, I killed two of those women lah!”, and he did so voluntarily, you’d definitely think he could have done it. That’s a confession. Plus, even if the suspect’s confession has what is known as “exculpatory parts”, which means that the suspect attempts to claim innocence in some aspects, the confession still counts. 4 methods the courts are not OK with to obtain confessions Fortunately, no, the police cannot go to any lengths just to make suspects cough up a confession. The Evidence Act 1950 provides for most of the rules that govern evidence, including the exclusion of confessions that are made under certain circumstances. What are these circumstances, exactly? 1. Inducement, threat or promise The image above might be hilarious, because who’s gonna fall for that, right? But a more real world example would be something like “You had better tell the truth”? Coming from a person in the position of authority, you may just be pressured to make a possible false confession. Anyhow, inducement, threat or promise to obtain confessions can make said confession inadmissible in court, by virtue of section 24 of the Evidence Act 1950: 24. A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise... These kinds of confessions cannot be used in court against the defendant. The examples above might be very obvious attempts at inducing, threatening and promising, but they don’t have to be direct inducements, threats or promises. They can be subtle. Some phrases have been held to amount to threats or inducements include: “Tell me where the things are and I will be favourable to you” (R v Thompson) (Inducement or Promise) “If you do not tell me all about it, I will send for a constable” (R v Richards) (Threat) “You had better tell all you know” (R v Kingston) (Threat) “You must tell the truth or else you will be charged” (PP v Liik Ching Kwong) (Threat) As long as the words from a person in authority had the effect of affecting the willingness of the accused to give a statement, it is sufficient to be considered inducement, threat or promise. Even a piece of advice like in Aziz bin Muhamad Din v PP where the accused was advised by his father to tell the truth, was held to amount to a threat. 2. Confessions made to a police officer UNDER the rank of Inspector Yep, if a confession was made to a ‘small fry’, as in any police officer under the rank of Inspector, the court won’t really take it into account. That’s provided under section 25 of the Evidence Act 1950: 25. (1) Subject to any express provision contained in any written law, no confession made to a police officer who is below the rank of Inspector by a person accused of any offence shall be proved as against that person. 3. Confessions made whilst in custody of police officer Section 26 of the Evidence Act 1950 says that subject to express laws, confessions made in the custody of a police officer without the immediate presence of a Sessions Court Judge or Magistrate shall be thrown out. 26. (1) Subject to any express provision contained in any written law, no confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence of a Sessions Court Judge or Magistrate, shall be proved as against that person.. “In custody of a police officer” means that a person is in custody if he is in a state of being guarded and watched to prevent his escape. In Eng Sin v PP, a confession made to a doctor was excluded on grounds that the accused was in custody of the police at the time, despite being in a hospital. An exception to section 26 (which means the confession WILL NOT be excluded) is when express laws allow for confessions to be made in police custody. Statements remain admissible if obtained under certain laws, including section 37A of the Dangerous Drugs Act 1952, the Moneylenders Act 1951, the Pawnbrokers Act 1972, section 21 of the Official Secrets Act and section 16 of the Kidnapping Act 1961, provided there were no threats, inducement or promise made and made to a police officer of or above the rank of Inspector. 4. Oppression On to the spicy stuff. Although Chinese water torture hasn’t been used in Malaysia, other methods of persuasion have been used, as can be seen below. Confessions made under oppression will be excluded in court. What is oppression exactly? Oppression was defined in R v Priestly as something that ‘saps that free will which must exist before a confession is voluntary’. R v Fulling describes it as unjust or cruel treatment of subjects or inferiors et cetera and the imposition of an unreasonable or unjust burden. Relevant factors to determine whether a circumstance is oppression include: the characteristics of the accused the period of time during which he was questioned the length of time during which he was in custody whether he was given refreshment and opportunity to rest This one deserves a paragraph on its own. In the case of PP v Chan Choon Keong, the accused was put into a room and was interrogated for a whole night with his hands handcuffed behind his back. Later while in lock-up, he was only allowed to wear his underwear and had to sleep on the cement floor without a blanket or a pillow. The interrogation lasted 4 days, on an occasion at odd hours, and during the period of interrogation he had water poured on him while he was facing an air-conditioner, forced to eat cili padi and having his request to see a doctor denied unless he co-operated with the police. Besides physical oppression, the courts have not ignored elements of psychological oppression. In PP v Goh Kim Looi, a male police officer conducting an interview with the female accused in a small closed room was held to amount to psychological oppression. If you remember, the discussion of section 25 above, that confessions made to police officers of the rank of Inspector and above are A-OK and won’t be excluded. But in section 26, it says that confessions made in the custody of a police officer will be excluded! The solution to this quandary is that section 25 only applies before any investigation has begun, or the case isn’t in the course of an investigation. For example, upon arrest, the accused confesses, but an investigation hasn’t commenced at that time, and the police officer was below the rank of Inspector, so the confession will be excluded. Is it okay if the confession leads to the finding of evidence? It’s not just murder weapons. Information leading to the discovery of drugs in a drug trafficking case, or the equipment used in an arson case is covered under section 27 of the Evidence Act 1950. Section 27 basically allows confessions that are made under circumstances covered in sections 24, 25 and 26 to be used in court if it leads to the discovery of a “fact”. For example, in the case of Pulukuri Kottaya v Emperor, the statement: “I will produce a knife concealed in the roof of my house with which I stabbed A” was admitted because it actually led to the discovery of the knife. However, the part “with which I stabbed A” was excluded because it had nothing to do with the discovery of the knife. So… can the police use ANY method at all to secure a confession that will lead to a discovery of fact? Prior to 1995, there were NO RESTRICTIONS on how the information under section 27 was obtained. It’s all good if it led to the discovery of a fact. Not only was section 27 regarded as separate from sections 24, 25 and 26, it was also free from the regulations in the Dangerous Drugs Act 1952 et cetera. According to the case of Wai Chan Leong v PP, it was fine even if the accused was forced into making such statements, as long as they lead to the discovery of a fact. After a lengthy series of court cases, in the case of Wan Bakri bin Wan Ahmad v PP, Justice Low Hop Bing affirmed the approach in Francis Antonysamy v PP to reach a compromise between two extremes. TL;DR: Section 27 is not absolute, which means you cannot use any means to justify the securing of a statement or confession leading to the discovery a fact (for example the discovery of a murder weapon), but the method used had to be so extreme to make the statement or confession inadmissible in court. In Malaysia, the justice system seeks a balance between human rights and police investigation There is a history of deaths in police custody in Malaysia, and although there are laws in place to somewhat prevent unethical methods to obtain confessions from accused persons, it can also be seen that it is important to the police that results are achieved in their investigations and sometimes things just go too far. Then again, it is not a problem that is specific to Malaysia for enforcement agencies worldwide to employ these sort of methods to extract confessions or information from their captives. This piece of write-up in 2016 about the Chicago Police Department in the US showed how far the police were willing to go to enforce the law... in their own manner. Stories of corruption, torture, and scandals were rife and still haunts the organization to this day. Academics from the University of London have warned that false confessions have been on the rise, and it is suspected that 1 in 5 arrested persons confessed to a crime they haven’t committed. To end this article. some of the NGOs in Malaysia that have made a stand and brought attention some of the police brutality and death in custody cases are SUARAM, SUHAKAM, and Lawyers for Liberty. These organizations have hotlines for people who need help for themselves and/or someone they know, and articles on the human rights situation that are very informative."
"Is the PDRM allowed to search your body without a warrant? Imagine this scenario – you are driving along merrily with your friends, out for some late night McNuggets. Suddenly, you see flashing lights up the road. It’s a police roadblock and you obligingly slow down your car. You expect the abang police to wave you through but to your surprise, he gestures for you to pull over. You manoeuvre your car over to the shoulder of the road and wind down your window. The police then asks you and your friends to get down from the car. Confused, you hesitate and ask him why. He tells you that he wants to conduct a body search on you and your friends but this leads to 4 questions: Can the PDRM actually do that? Your girlfriend is in the car as well, can male officers conduct a body search on females? Can the PDRM do it there and then? Do they need a warrant? First things first is… The PDRM can conduct body searches Under section 20 of the Criminal Procedure Code (“CPC”), the police are allowed to search you if you have been arrested. You can read more about how arrests happen in Malaysia here but we know what you are thinking; police searches at roadblocks always happen even if you are not arrested. Well, you think that you are not arrested but technically, the moment the officer touches or confines your body, an arrest has been made. To illustrate this point further, let’s use a common scenario: Ali is stopped at a police roadblock. Ali is asked to get down and the police conducts a body search. In that time, Ali cannot run away and is technically arrested. [READ MORE: How do I know if I am getting arrested by the PDRM?] Aside from that, even if you are just in a place which is being searched under a police warrant, you can be searched as well if the police think that the thing they are looking for is hidden on your body. This is found in section 17 which allows the police to lawfully detain you until the search is completed. We know that this concept might be hard to grasp as it hinges a lot on technicalities and both the arrest and search happening simultaneously but the straight answer is, the PDRM are allowed to conduct body searches. While sections 17 and 20 only tells us that the police can conduct body searches, the procedure on how to conduct body searches in found in the Fourth Schedule of the CPC. While the PDRM don’t need warrants to search you, anything above a pat down search requires authorisations from ranking police officers. We will explain this in further detail below. Aside from the necessity of getting arrested before a search can be conducted, the Fourth Schedule also lays down some extra rules… The search must be done with certain objectives in mind Part 1 of the Fourth Schedule tells us that a body search can be conducted only if it complies with any of the following objectives: To obtain evidence of the offence that you were arrested for To seize contraband or things used in relation for the offence that you were arrested for To discover/preserve/prevent disposal of any such evidence Aside from having these objectives in mind, Part 2 of the Fourth Schedule also lays down the general conduct which the police officer conducting the search must have while searching your body. There are 9 things for the officer to bear in mind and you can check out the full list on your own but the gist of it is that the officer must have utmost respect for your dignity while conducting the search and have respect to, among other things, your religious and cultural sensitivities and any disabilities you may have. Section 19(2) CPC also tells us that if you are a woman, your body search must be conducted by another woman with strict regard to your decency. If you are thinking, okay, that doesn’t sound too bad because all the police is doing is a normal pat down search. However, there is one interesting point to note… There are 4 kinds of body searches that the police can conduct You can technically look at these 4 different kinds of body searches as the beginner, intermediate, expert, and master sifu searches because they uh...increase in intrusiveness as they go on. Without further ado, let’s take a look at the 4 different kinds of searches and the additional rules that they have. While there are 4 kinds of searches, there is common procedural aspect that is shared by all of them. At the end of each search, the police officer must prepare a list of things taken from your during the search. You must sign this list and receive a copy of it. Aside from that, these searches can be conducted if there is reasonable suspicion that you are concealing a weapon/evidence/contraband whether at the time of arrest of before entering the lock-up/detention centre. Pat down search A pat down search is the one that most of us would be familiar with. It’s where the officer quickly searches your outer layer of clothes by running his hands over your clothes. There is no authorisation required for a pat down search. This means that technically, any officer of any rank can carry it out. There are 12 procedures that a police officer has to comply with when conducting a body search on you and you read up on the long list yourself but here are some interesting tidbits we picked up: The police officer is not allowed to touch your genitals but he may run his hands over your buttocks and under your breasts The police officer must start off the search by asking you to declare if you have any unlawful/harmful item on you The police officer must ask you to turn out your pockets and empty them Strip search A strip search is where there is removal of some or all of your clothing during the search. However, you cannot be completely naked at any time of the search. The police officer must allow you to dress your upper body before requesting you to remove the clothes on your lower body. A strip search cannot be conducted without the authorisation of someone who is above the rank of an Inspector or if conducted by any other enforcement agency, by someone in the rank equivalent to that of an Inspector and above. There are 14 procedures that the officer has to comply with during a strip search and as above, we made a shorter list of interesting tidbits for you: The search must be conducted in a private room with no recording devices and only you and the two officers are allowed in the room All the clothes you remove must be thoroughly inspected in your full view The officer is allowed to search your ears, nasal passage, and mouth If you are a female, you can be asked to lift and separate your breasts for an inspection from all sides, if you are obese, you may be asked to lift your skin for inspection The officer must have minimal contact with your genitals/intimate parts Intimate search An intimate search is where your body orifices (other than the mouth, nose, and ears) are searched. This means uh that your...anal and vaginal cavities. The same rule of not being completely naked applies and authorisation by a police officer not below the rank of Assistant Superintendent of Police must be given. The most important aspect of the intimate search is the squat and cough procedure. This is where the officer will request for you to remove the clothes covering your bottom half and ask you to squat over a mirror and cough deeply not more than 10 times. The purpose of this is basically to see if you have inserted anything up your orifices and the squat and cough exercise is supposed to dislodge the item, if any. If the squat and cough does dislodge an item from any of your orifices, the officer is not allowed to attempt any external intervention to help dislodge the item. Basically, he cannot reach over and pull the item out of you. If the officer considers that you are incapable to do the squat due to health reasons or because you are pregnant, you don’t have to perform the squat. Aside from these additional requirements, the same rules which apply to a strip search apply here. Intrusive search An intrusive search is well...as the name connotes, intrusive. It is done to examine your body to see if you have hidden anything inside your body or in any of your orifices. Unlike the intimate search, an intrusive search allows for the removal of the item from your body. Authorisation must be given by the officer in charge of a Police District or his equivalent in any other enforcement agencies and the search can only be conducted by a Government Medical Officer or a Medical Officer. You must be brought to a hospital for the search to be conducted and during the search, you will be accompanied by a police officer of the same gender who will take any object which is recovered from your body. So these are the 4 searches that can be conducted on you. If you can’t remember all the procedures and guidelines, one very important thing can help you… The Red Book saves the day! The Malaysian Bar has complied an easy guide for the rights you have if and when the police stops you and it comes in Malay and English. You can download them here. Basically, just know that you have the right to ask for the police’s identification and reasons why they are stopping you. Aside from that, if you ever require legal help but can’t afford it, Malaysia actually provides three different kinds of legal aid to assist you. You can read more about it here. At the end of the day, always remember to keep your cool if you are stopped by the police and respond courteously but firmly."
"How do you stop someone from hiding their money instead of paying you back? Have you ever been in that situation where someone owes you a huge sum of money and you are thinking about suing him for that money but you know that suing someone and getting judgment can take a long time. What happens if he runs away with the money or hides it somewhere else? On the other hand, if a company owes you money, you would face the same dilemma but with the added worry of them just closing shop and transferring their funds out of the country (especially if you are dealing with companies owned by foreigners). You know that once they transfer their money out of the country, the chances of you ever seeing that money is moot because it would be beyond the jurisdiction of our courts. If you have ever been in either scenarios, you may feel like you are caught between a rock and a hard place. Sue the guy and run the risk of him hiding his money or not sue the guy and pray that he somehow pays up. Well, the law actually removes both the rock and the hard place through this tiny thing called an injunction. Specifically, there is a particular kind of injunction that will help you out in a scenario such as the above. No, it has nothing to do with driving or cars or junctions unlike what our editor thought at first. Before diving into the specific injunction that will help you out, let’s take a look at how different an injunction is from a junction. Injunctions are like the abang polis trafik Okay, we know that we told you that injunctions have nothing to do with junctions and traffic laws, but this is the easiest way to describe it because every Malaysian would have once been in a situation where the traffic was being directed by a traffic police. Injunctions are like the traffic police’s directions because they are either prohibitory or mandatory in nature. For example, a mandatory order is when the police waves for you to drive on, regardless of whether the traffic light is red or not. On the other hand, a prohibitory order happens when he gestures for you to stop even though the light is green. [READ MORE: How do you start suing someone in Malaysia?] For the purpose of this article, we will be focusing on one specific injunction called the Mareva injunction. But wait. You might be wondering how does this solve the problem of the other party hiding their money? They could easily do it before the injunction is granted by the court. We won’t go into the technicalities of it but the Mareva injunction is basically granted ex parte, which means that it is done in secret without your opponent’s knowledge. Mareva injunctions, like Maria Sharapova, smashes your opponents What the Mareva injunction does it that it prevents your opponent (the defendant) or his agents/servants from disposing of his assets within the jurisdiction (within Malaysia) and/or from removing his assets from within the jurisdiction (transferring outside Malaysia). Basically, it freezes their assets. This injunction got its name from the case of Mareva Compania Naviera SA v International Bulkcarriers SA and has been described as a nuclear weapon of the law. To demonstrate how powerful it is, in a defamation case involving the former Singaporean Prime Minister, Lee Kuan Yew, the court granted the PM a worldwide Mareva injunction against his defamer in the case of Tang Liang Hong v Lee Kuan Yew & Lee Hsien Loong. A worldwide Mareva injunction basically freezes all your assets across any country. Up until today, the defamer (Tang Liang Hong), has never set foot in Singapore since 1997 and resides in Australia. English cases may have created the Mareva injunction but it was through the Malaysian cases of Zainal Abidin bin Haji Abdul Rahman v Century Hotel Sdn Bhd and S & F International Ltd. v Trans-Con Engineering Sdn Bhd that Malaysians can now rely on this injunction. As the judge in S & F International said (this writer couldn’t resist inserting this quote because the level of England in it): “The policy underlying and the principles governing an order of this nature have been expounded and ossified in a catenation of congeneric cases and the relief so afforded when the circumstances of the case merit it has been acknowledged by this court...” – Abdoolcadeer FJ, S & F International Ltd. v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62 Sharp readers would have caught the phrase, “when the circumstances of the case merit it” and wonder what kind of circumstances would merit the granting of a Mareva injunction? Well, there is a test to pass… There must be a real risk of the money disappearing Remember the guy who first allowed the Mareva injunction to take place, Lord Denning? Well, he showed up in another case called Third Chandris Shipping Corp v Unimarine SA and basically said that while the Mareva injunction has been extremely beneficial, it has to be used carefully to avoid abuse. He then laid down a bunch of things that you, as a plaintiff ,has to prove before the court will grant an injunction. In essence, there are 4 things you need to do/prove: There must be a full and frank disclosure. This means that you must disclose to the judge all the information that you know which is essential for the judge to know. You must have a good arguable case which means that the judge must believe that your case is not a frivolous one. You must show that there is a real risk that the defendant will remove or dissipate his assets. You must give an undertaking in damages in case you lose the case or the injunction turns out to be unjustified. This means that you must promise or provide security to the court that you can/will pay up if you lose. However the injunction cannot do 2 things: The injunction cannot stop your debtor (the one who owes you money) from paying his debts when they become due. For example, if your debtor needs to pay his workers, his assets can be used to pay their salaries even though there is an injunction against him. The injunction cannot interfere with a third party’s business. For example, if your debtor’s goods are loaded on a ship which is ready to sail to UK alongside other people’s (third parties) goods, your injunction cannot stop that ship from sailing. There you have it, folks. If you manage to satisfy all the requirements above, it is highly likely that the courts will grant you a Mareva injunction. You can then serve this on the person who owes you money and sleep soundly knowing that he can’t hide his money to avoid paying up. However, can your debtor challenge this injunction? An injunction can be challenged Before you recoil in horror and indignation, the Mareva injunction can be set aside because it was made ex-parte and it is only fair that if the court grants you such an injunction without the knowledge of your opponent, that they have a chance to apply for it to be set aside. In the case of Motor Sports Internationa Ltd. v Delcont (M) Sdn Bhd, the court laid down several grounds for setting aside an ex-parte Mareva injunction. Basically, they are: Failure to comply with Order 29 Rule 2A of the Rules of Court 2012. This order states that when you make an affidavit (written statement, sworn by oaths) in support of your application, they must contain several things such as the facts giving rise to your claim and facts which might make the court refuse your application. There are 7 things to comply with and in a manner of speaking, it is tied back to the requirement of giving full and frank disclosure. Failure to include a monetary limit on the Mareva injunction. This means that you must specify how much to freeze. This is to ensure that the court order doesn’t become too wide and oppressive. If the defendant manages to prove that you failed to comply with any of the two requirements above, the court can and would most likely set your injunction aside. This means that your debtor is now free to deal with his property again. Despite that, the two reasons in which an ex-parte Mareva injunction can be set aside for are easy to fulfil. If you are ever in such a situation where you require such an injunction, always remember to seek out a lawyer as each case turns on its own facts and don’t forget to tell him all that you know so that he can represent you in court to the best of his abilities. [READ MORE: How do you start suing someone in Malaysia?]"
"How do you even start suing someone in Malaysia? Many people have never known this, but there are different “ways” to bring cases to civil court in Malaysia. In criminal cases, what usually happens is the accused person is arrested, formally charged by the public prosecutor and if the accused person does not plead guilty, the matter goes to trial. It’s different for civil cases, different types of civil actions require different modes of commencement in court. In this article, we’re gonna be talking about what is properly termed as modes of commencing proceedings. When you approach a lawyer with a civil action in mind, chances are the lawyer will let you know what documents he’ll need from you and all that, but you probably don’t know what he’s gonna do to bring your case into court. It’s kinda neat to get to know what’s going on behind the scenes so that there’s less frustration on your part. The modes include writ of summons and originating summons. Most of, if not all the methods of starting a civil case are covered by the Rules of Court 2012, which will be expanded upon in the discussions below. Didn’t know there were rules in court, eh? 1. Writ of Summons (Writ) Order 5 rule 2 of the Rules of Court 2012 say when cases MUST be inititated via writ: 2. Proceedings in which a substantial dispute of fact is likely to arise shall be begun by writ. It says that cases that are likely to have “substantial dispute of fact” should be initiated via writ. A substantial dispute of fact is when both parties in court (the sue-er and the sue-ee, if you will) will have conflicting accounts of what happened. Compared to originating summons, which we will be discussing in the next point, a case started with writ is more time consuming and costly in terms of money. There may be witnesses that are called in to give oral testimonies (their story). What are cases that are likely to have “substantial dispute of fact”? Claims for damages for breach of duty and personal injuries, which arise from (usually) tort of negligence, are considered to be likely candidates to have a subtantial dispute of facts. Concepts such as breach of duty, negligence, and personal injury claims have been covered previously by us, but here’s the lowdown. For example, when a careless driver (who is negligent and has breached his duty as a road user) hits a pedestrian, resulting in personal injuries, the pedestrian can then sue the careless driver. This action of suing the careless driver is initiated with a writ. [READ MORE: Did you know you could be taken to court for something that’s not a crime?] Another example of civil action in which there is likely to be a substantial dispute of facts is a claim that is based on fraud. Fraud is when someone uses a wrongful method to obtain money or property that rightfully belongs to others. Examples of these include scams and identity theft. Ya know when you get those emails from Nigerian Princes? Yeah. It’s pretty clear that situations involving fraud can be pretty messy, and there’s gonna be disagreements as to facts of the case with both parties in court. Order 5 rule 4(1) of the Rules of Court 2012 gives us the situations where proceedings MAY BE initiated either by writ OR originating summons (we’ll be discussing originating summons below): (a) in which the sole or principal question at issue is or is likely to be one of the construction of any written law or of any instrument made under any written law, or of any deed, will, contract or other document, or any other question of law; or (b) in which there is unlikely to be any substantial dispute of fact Here you can begin a case either by writ or originating summons if – the main issue of the case is an issue of law or regarding documents, and/or if there’s not likely to be any substantial dispute of fact Examples of cases that can either be initiated this way are contract cases, like wills where the main point of dispute is the law surrounding the contracts with minimal arguments on facts. 2. Originating Summons Compared to writ, originating summons is faster and more linear and less complicated. It costs less, and both parties will have their cases stated in affidavits (written statements confirmed by oaths) to facilitate the process. No witnesses and oral testimonies are required. When do proceedings HAVE TO BE be initiated via originating summons? Order 5 rule 3 of the Rules of Court 2012: 3. Proceedings by which an application is to be made to the Court or a Judge thereof under any written law shall be begun by originating summons. Cases which involve disputes on points of law, like (again) contract cases that have no arguments of facts, setting aside an order for sale of land, recovering land from squatters must be started by originating summons. Originating summons CANNOT be used to initiate an action where there is dispute of facts or where the plaintiff intends to apply for a summary judgment or specific performance. A summary judgment is a judgment entered by a court in favour of one party without a full trial. It’s a pretty complex topic so we’ll save this one for another article. Specific performance, on the other hand, is a when the court awards compensation in the form of an action instead of money to a party. The court can order a defendant to fulfill the thing that is to be done in a contract, because sometimes money can’t buy certain things. For example, there’s a contract between A and B to have B dance like a monkey while riding a unicycle. If B doesn’t fulfill that, the court can order B to do so instead of paying money to A, because sometimes watching someone dance like a monkey while riding a unicycle is the best, and can’t be bought with money. What if a wrong mode is used to start a civil action in court? It’s not the end of the world, you can actually still proceed with the action. Order 2 rule 1 of the Rules of Court 2012 holds that non-compliance with the Rules shall be treated as an irregularity and shall not nullify the proceedings. That means the court won’t immediately throw out your case just because you (or your lawyer) made a technical error. Echoing that sentiment is Order 2 rule 1(3). The court or judge may allow amendments and to order the irregularity to be cured. That’s great, but the court still has the inherent power under Order 92 rule 4 to set aside the action “in the interest of justice”. Now, can an action that is halfway in progress, but later found out to be commenced wrongly, be cured? According to Order 2 rule 1, and a couple of court decisions, it can! The English case of Harkness v Bell’s Asbestos & Engineering Ltd held that every defect (mistake in commencing a civil action) is to be regarded as an irregularity which the court could rectify in the interest of justice. The principle in Harkness was followed by the Malaysian case of Shanmugam v Pappah. Last, but probably not the least, is Order 28 rule 8(1), which says that an action commenced by originating summons may continue as if by writ if there are disputes. The case of Ting Ling Kiew v Tan Eng Iron Works held that pursuant to Order 28 rule 8(1), since issues of disputes of facts arose in the case, despite it being commenced by way of originating summons, the case should continue as if by way of writ, and the case need not be thrown out. There you have it, a few ways to start a civil action in Malaysian courts. If nothing else, the takeaway from this article should be there are different ways to start a civil action. The modes in this article are not exhaustive, but it should be a good starting point for anyone wanting a peek into the process. Certain issues such as bankruptcy proceedings have commencement methods that are governed by the Bankruptcy Act 1967, and there are more of such cases which have their own respective Acts that govern their proceedings. [READ MORE: How do bankruptcy proceedings work in Malaysia?]"
"Is it illegal to steal ideas in Malaysia? Here's 5 laws about copying that you didn’t know Imagine having a brilliant idea one day for a product, a book, or even a business. You’re beyond excited about it, so you share the idea with your friends over a meal. A few days later, you find out that one friend started using your idea as his own... You’ve probably come across this scenario in some form before. In fact, it’s exactly what happened to one Facebook user, Nabila Jalil, who posted about an incident where Tealive had taken a tagline she created and used it for their marketing - allegedly without her permission. Netizens are up in arms about it, and many are asking to boycott the store for supposedly stealing Nabila’s hard work. This kind of incident brings to memory a lot of common sayings about Malaysian copyright laws: “You can’t steal people’s ideas” “It’s okay to copy as long as you credit the author” “A copyright protects your work globally”. But how true are they? Let’s start off with the example above. An idea thief doesn’t exactly perform miracles for people, but have they actually done anything illegal? It’s a no, because… 1. You can’t copyright ideas Imagine getting sued for having the same idea as someone else for your house decorations. It would be ridiculous, which is why not everything is copyrightable by law. Ideas are not protected by copyright because of Section 7(3)(b) of our Copyright Act 1987: “(3) A literary, musical or artistic work shall not be eligible for copyright unless— (b) the work has been written down, recorded or otherwise reduced to material form.” It’s not just ideas that can’t be protected, only certain types of work qualify for copyright protection. Under Section 7 of our Copyright Act 1987, only the following are eligible for copyright: Literary works Musical works Artistic works Films Sound recordings Broadcasts “Literary work”, “musical work”, and “artistic work” actually have specific definitions that you can find in Section 3 of the Copyright Act. It’s a long section of definitions so you may have to use Ctrl + F to find what you want. You’ll find that most music and art will qualify for copyright (no matter how good or bad they are), but writing in particular has a few exceptions. For example, a cook can’t copyright a list of ingredients, but the written recipe complete with the instructions can be copyrighted. Titles of works, names of products and businesses, catch phrases, mottos, slogans, and the like are also not recognized as “literary works” by law. So while it’s unethical for your friend to take credit for your genius marketing slogan, they technically haven't broken any laws. 2. Copying is illegal even if you credit the original Rumour has it that it’s okay to copy a part of someone else’s work as long as you credit the original. This is sometimes correct, but as with many rumours, it’s only half the story. The most straightforward situation where you can use someone else’s work is when they have given you permission to do so. Some people are willing to let you use their work as long as you credit them, but you normally need to have a license agreement which pays the creator for their work, especially when you’re using the work commercially. There are certain situations called “fair use” where it’s okay to use another person’s work - usually when a small part is being referred to. These provisions are under Section 13(2) of the Copyright Act and include: Research, criticism or review, or news reporting Doing a parody When the work is on display in public Use for teaching People don’t usually mind you using parts of their work if you aren’t taking advantage of them, and have credited them. Fair use is a type of copying that is justifiable under law, but what if you’re copying just a bit of someone’s work for inspiration? 3. Copying “only 10%” is not always okay If you’re a graphic artist, you’ve probably heard the myth that it’s okay to copy 10%, and make the other 90% your own work. This usually comes with a whole story about how nothing in this world is really original. But is this true? Yes, and no. It’s true that as long as your work is original enough, it will be given its own copyright. This is enshrined in Section 7(3)(a) of the Copyright Act 1987. Section 7(3)(b) - Copyright Act 1987 “(3) A literary, musical or artistic work shall not be eligible for copyright unless— (b) sufficient effort has been expended to make the work original in character…” As long as your work is deemed original enough - that you’ve put enough of your own character into it, then it’s okay to copy that 10%. However, there’s a long standing legal debate on what this “10%” actually is that makes copyright law very confusing for writers, artists, architects, musicians, and pretty much anyone who wants to produce something of their own. This leads to people having different opinions about whether a piece of work has been copied from someone else or not. Most of the time though, we won’t really see how it plays out in the end because the sight of a lawyer letter is enough to scare most people into taking their work down. It’s one of the biggest problems with copyright law that we’re stuck with for now. 4. Fan art is illegal Whether it’s fan fiction, art, or even pieces of clothing that your favourite characters wear, making these items itself is technically against copyright law. The original creators of the work have the right to stop you, and even sue you if you’re selling your fan art - if they want to. Creating fan art is a contravention of the original creator’s right to produce, publish, and exploit their creation commercially (Section 13 of the Copyright Act). While this may be the case, a lot of creators don’t mind their fans producing fan art, as long as fan art does not compete with them. This is where the myth “it’s okay as long as you’re not making money from it” comes from - it’s still illegal, but creators like Marvel have better things to do than sue you for one drawing of Iron Man that you keep in your room. Though it’s quite a different story if you print a hundred copies to sell. For example, it would make J.K. Rowling look really bad if she sues every single person who shows their love for Harry Potter through writing a short story or dressed up as a Hogwarts student. Why would you sue your biggest fans for giving you free marketing? But the creators of the Harry Potter Lexicon - a fan-made online encyclopedia, took things too far when they decided to publish and sell a printed version of their website. This put them in direct competition with J.K. Rowling, so even though she was fully supportive of the site before that, she sued them and won. Some people cross the line with fan art laws though – creators like Anne Rice aggressively shut down fan works, and some fans also sell their work commercially or even claim it as their own after changing a few things. While a lot of people sell their fan art especially at conventions, it’s still illegal and the risk of getting sued is always there. For a more detailed background on fan art laws, check out this article by KiRAWRa on DeviantArt. 5. You CAN sell what you make from recipes and manuals While in most cases above, copying will get you in trouble with the law, if you’re just following a recipe or manual then it’s perfectly legal to copy and even sell what you make. For example, you can follow Gordon Ramsay’s recipe for making pasta, and even use it for your restaurant, without needing to pay him. Section 13A of the Copyright Act provides that if there’s a “design document” (basically a manual you follow to create something) that is copyrighted, making something by following it is perfectly legal - provided it’s not an artistic work (like a painting or statue) or a typeface (a design for how words look like). This also falls in line with another rule of copyright - that ideas, procedures, or a method of operation all cannot be copyrighted. We get this rule from Section 7(2A) of the Copyright Act. So following the example above, Gordon Ramsay can’t copyright his pasta recipe, but the recipe that he wrote down can be copyrighted. While that may be a little confusing, this basically means that making his version of pasta is legal, but you can’t write down his pasta recipe and call it your own. If you need to verify a law, do some research or check with a lawyer Legal myths are sometimes born from simplified explanations that get changed and lost in translation. If you have a project that involves a certain area of law, it pays to check your facts beforehand. The court judges will not take “I didn’t know” for an excuse if someone really drags you to court. As for copying and copyright, remember that while there might be no legal action taken, if a copyright owner really wants to stop you or sue you, they have the full right and power to do so. While a fan dressing up as a Disney character may not get sued in court, it’s an entirely different story if an event company sends Disney-costumed entertainers to a kid’s birthday party. When looking for a lawyer to consult, you may want to look for a law firm that specializes in Intellectual Property – they’ll be better able to help you out with any copyright queries."
"If a careless driver killed someone, can the victim's family sue for financial support? Sometimes, bad things happen when people get careless. In extra bad situations when people get careless, someone could lose their life. Imagine you’re takin’ a stroll down Bukit Bintang with your mother or father, and some inconsiderate, dangerous driver rams their car into the both of you despite the fact that you were walking on the sidewalk. An ambulance arrives shortly after and rushes you guys to the hospital. Fortunately, you end up with much less severe injuries, but unfortunately, the person who you were with succumbed to their injuries and died. Since you suffered injuries, you’d definitely be able to sue the driver for negligent driving (careless driving). Can you sue for your deceased parent though, since they were the one who died? If only there were ways to sue on behalf of your deceased parent… THERE ARE! There are actually causes of action under fatal accident claims. There are two categories of claims under fatal accident claims, and they’re pretty different. In the example above, the careless driver committed a tort of negligence. What’s the tort of negligence you ask? The simple explanation is when someone who does something a reasonable person wouldn’t do, and causes harm while doing so, was being negligent. . [READ MORE: Did you know you can be taken to court for something that’s not a crime?] Now that the preliminary stuff’s out of the way, let’s start with the types of fatal accident claims. You can sue for loss of financial support and loss of services Before going into the two types of fatal accident claims, namely, dependency claim and estate claim, it should be made clear that these claims only arise when the defendant’s (the careless driver) negligence (for example a careless driver) has caused the death of another person. A personal representative may bring an action representing the member(s) of the family of the deceased to sue the defendant. Dependency Claim The specific piece of law that provides for dependency claims is section 7(3) of the Civil Law Act 1956: (3) The damages which the party who shall be liable under subsection (1) to pay to the party for whom and for whose benefit the action is brought shall, subject to this section, be such as will compensate the party for whom and for whose benefit the action is brought for any loss of support suffered together with any reasonable expenses incurred as a result of the wrongful act, neglect or default of the party liable under subsection (1) A dependency claim is a claim to compensate the dependants of the deceased for the loss of support suffered resulting the death of the deceased that was caused by the defendant in committing a tort of negligence. Loss of support here means the financial contribution the deceased would have made during their lifetime, and/or the loss of services the deceased was providing to the dependants. For example, loss of support is if the deceased was providing the family with RM 500 per month while they were alive, and would have done so were they still alive, and loss of services is if the deceased was household services, gardening, teaching the children, et cetera. You may understand that dependants are people who rely on the deceased for financial support, but the law specifies exactly who dependants are. Generally, dependants include the husband, wife, parent, child(ren), grandparents and stepchildren of the deceased. These dependants can then sue for loss of support and other expenses incurred. To claim for financial loss of support from the deceased’s earnings that he/she used to make, there are 3 conditions to be satisfied: The deceased must have been below the age of 55 at the time of their death. If the deceased was making contributions from their pension, this doesn’t apply. The deceased must have been in good health, aside from the injury that killed them The deceased must have been receiving earnings from labour or other gainful activity prior to their death Once those conditions are satisfied, you can sue on behalf of the deceased. The issue of how to calculate the award that is… awarded should you win the case are complicated and involves a lot of math. There are deductions to be made, like taxes, and the personal living expenses of the deceased (that they would’ve needed if they were alive). If there is more than one dependant, the award will be apportioned amongst them. When a member of a family passes away, it’s understandable that that alone can cause pain, suffering and loneliness. That’s known as loss of consortium. However, you can’t sue for loss of consortium (which is basically suing for loss of companionship). What you CAN sue for, though, is loss of support in the form of services rendered, like doing chores around the house. Family members don't usually ask for payment to do the chores, but not to worry, you can still sue and get compensated (in the form of money). This one doesn’t really fall under loss of support, but nevertheless falls under dependency claims. A bereavement claim is an independent claim that can be made by the spouse of the deceased or the parents of a deceased unmarried child (under 18 years old). The amount to be claimed is set at RM 10000. In cases where the deceased has more than one surviving spouse, the amount will be split evenly between the spouses. Parents of a deceased unmarried child (under 18 years old) get RM 5000 each. Dependants can also claim for funeral expenses, subject to a reasonable amount. You can’t really expect to erect a pyramid for the deceased and have the defendant pay for that. Can the defendant say that “Hey, since the deceased was careless too, can I have a discount on the damages (monetary award to the plaintiff) I have to pay?”. Well, it is true in some cases the deceased was contributorily negligent (they were careless as well), the Court of Appeal case of Rubaidah bte Dirin v Ahmad bin Ariffin says that yes, there would be a reduction in damages if the deceased was contributorily negligent. Estate Claim In contrast to dependency claims discussed above, an estate claim is basically a claim brought by a representative(s) of the deceased’s estate for a personal injury claim that they would have been entitled to were they still alive. It’s… a dead person’s personal injury claim. The thing is, the award from an estate claim would only be a good amount if the deceased survived a period of time before dying. If the deceased perished relatively quickly, then the awarded amount would correspond accordingly. The right to bring an estate claim is provided under section 8(5) of the Civil Law Act 1956: (5) The rights conferred by this section for the benefit of the estate of deceased persons shall be in addition to and not inderogation of any rights conferred on the dependants of deceased persons by section 7 and so much of this section as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said section as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1). How an estate claim works is basically like a personal injury claim. We’re gonna go into it in a touch-and-go manner, but you guys can read up on a more detailed article on personal injury claims here! Similar to personal injury claims, you can claim for special and general damages. Special damages are damages that can be quantified, like medical bills, transport fees, and loss of personal effects (personal items such as clothing, jewelry et cetera). General damages are damages that cannot be specified, such as pain, suffering and loss of amenities (loss of limbs). [READ MORE: Personal injury claims in Malaysia] The principle in the Rubaidah case stated above carries over to estate claims. The defendant can raise the defence of contributory negligence on the part of the deceased to have a reduction in damages awarded. Fatal accident claims are not restricted to traffic accidents The fact that the name of the claims is called fatal accident claims doesn’t mean you can only sue if there was a fatal traffic accident. A case in 2014 that concerned the negligence of the MRT Corp that resulted in 3 dead workers would have entitled their dependants to sue under a fatal accident claim. As another example, a chef in Japan served highly toxic pufferfish liver to a client, resulting in her almost dying. Had she died, her estate could have sued the chef on her behalf. There’s also the limitation periods under section 7(5) of the Civil Law Act 1956 for dependency claims and section 6(1) of the Limitation Act 1953 for estate claims. A limitation period means that you have to bring the action within a certain time, and if you want to do so after that period of time, you won’t be able to. The limitation period is 3 years for dependency claims, and 6 years for estate claims. While all of that’s good and dandy, please do remember that this article is only aimed to inform, and whether or not a dependant can sue, and if they will succeed in suing, depends highly on the facts of the case. Every case turns to its own facts, and a case that is similar to another may not have the same outcome. Again, if you’re facing a situation like this, it’s best to contact a lawyer as soon as possible."
"Apa sebab seseorang tu di-'Bin Abdullah' dan kenapa ada yang lawan isu ni? (Click here to read this article in English, the original version) Baru-baru ni ada beberapa kisah yang terpampang di media sosial yang telah berjaya menarik perhatian orang di mana ia berkaitan dengan agama Islam. Sementara isu penukaran agama anak oleh Indira Ghandi dan penukaran semula agama Rooney Rebit merupakan salah satu isu yang sudah pun berlalu, kini kes ‘Bin Abdullah’ pula telah menjadi perhatian orang ramai. Mungkin ada yang tidak tahu tapi ada sesetengah kanak-kanak Islam di Malaysia di ‘bin’-kan Abdullah walaupun nama bapa sebenarnya adalah lain. Menurut fatwa Islam, terdapat dua sebab kenapa ia berlaku sedemikian: 1. Kanak-kanak tersebut dilahirkan melalui perhubungan ibubapa yang tidak sah (tidak berkahwin menurut Islam) Kanak-kanak yang dilahirkan kurang dari 6 bulan sebelum perkahwinan ibubapa Menurut Menteri Pembangunan Wanita, Keluarga, dan Masyarakat: “Berdasarkan Statistik Remaja Hamil Jabatan Kesihatan Negeri 2012 hingga 2015, tiga negeri dengan statistik tertinggi remaja berumur 10 hingga 19 tahun hamil adalah Sarawak (5,246 orang), Johor (2,427 orang) dan Selangor (1,603 orang),” – Datuk Seri Rohani Abdul Karim, Free Malaysia Today Manakala sebanyak 532,158 kelahiran anak tidak sah taraf atau anak luar nikah telah dilaporkan kepada Jabatan Pendaftaran Negara (JPN). Untuk artikel ni kami akan memperlihatkan dua kes, yang pertama adalah mengenai sebuah keluarga di KL yang telah berkahwin 12 tahun dahulu tetapi mempunyai kesukaran untuk mendaftarkan nama anak mereka ber ‘bin’-kan kepada ayah kerana tarikh lahir anak yang ‘salah’. Asklegal telah diberi peluang untuk bertemu ramah bersama mereka. Manakala keluarga kedua pula berada di Johor dan mereka telah mengheret JPN ke mahkamah. Kami telah menukar kesemua nama atas dasar keselamatan dan privasi. Kesilapan pasangan ibubapa ni yang menghantui mereka sejak 12 tahun yang lalu Kisah ni bermula pada tahun 2003 apabila Rahman dan Aisyah telah melahirkan anak mereka 3 bulan selepas berkahwin. Pasangan tersebut telah ke JPN untuk mendaftarkan kelahiran anak mereka, Adam. Pada mulanya mereka ingat bahawa sijil beranak Adam akan didaftarkan dengan nama Adam bin Abdullah sebab mereka pernah dengar cerita tentang isu bin Abdullah ini. Tetapi, apabila pasangan tersebut melihat balik sijil anak beranak Adam, mereka terkejut dengan kenyataan ini – Adam bin Rahman “Permohonan s.13”. Walaupun Rahman dan Aisyah terkejut, mereka tidak fikir banyak dan cuma ingat bahawa permahaman mereka tentang isu bin Abdullah ini salah. Pada mulanya, Rahman dan Aisyah hanya pandang isu ni dengan sebelah mata saje. Tapi keadaan bakal menjadi lebih rumit 12 tahun kemudian... Adam yang sudah pun 12 tahun telah menyambut hari kelahirannya pada bulan Disember dan Rahman mengambil kesempatan ni seperti mana-mana ibubapa di Malaysia dengan membawa anak mereka ke JPN untuk mendapatkan IC. Sewaktu pendaftaran, pegawai yang bertugas telah terima borang Adam tanpa sebarang isu. 3 jam kemudian, pejabat JPN tersebut telah menghubungi Rahman untuk pulang semula ke pejabat JPN kemudian hari untuk apply semula IC Adam kerana Adam tidak dibenarkan untuk ber-‘bin’-kan Rahman. Malah nama Adam sepatutnya menjadi Adam bin Abdullah. Rahman yang terkilan dan bingung mula bertanyakan pelbagai soalan kepada pegawai JPN tersebut tapi hanya mendapat jawapan yang tidak memberangsangkan dan pegawai tersebut berkeras bahawa isu ‘Bin Abdullah’ ni adalah diluar bidang kuasanya. Memikirkan tentang anaknya, Rahman mengambil keputusan untuk menarik semula permohonan IC tersebut dan tidak apply yang baru. Tanpa mempunyai IC, Rahman sedar Adam akan menghadapi kesukaran tapi pada yang sama anaknya tu juga tidak akan memahami mengapa namanya tidak di ‘bin’-kan bapanya. Selain dari tu, ‘Bin Abdullah’ sering mendapat stigma negatif dari masyarakat setempat di mana ia boleh mempermainkan jiwa dan raga Adam pada masa sekarang dan mungkin masa depan juga. Malah Aisyah (si ibu) juga berkata: “Kalau anak kami di ‘bin’-kan dari mula lagi mungkin kami boleh perlahan-lahan memberitahu Adam dan kami juga mempunyai masa untuk menerimanya tapi memandangkan Adam sudah pun 12 tahun, ia telah menjadi sukar untuk kami jelaskan apatah lagi menjawab persoalan dari rakan-rakannya. Kami tidak mahu kesilapan lampau kami menghantui Adam” – Aisyah, ibu Adam, sewaktu interview dengan ASKLEGAL Kisah keluarga ni boleh di baca dengan lebih lanjut di Malay Mail yang ada sekali sewaktu interview. Jadi persoalannya di sini pula adalah…. Antara agama dan sekularisma Untuk memahami apa yang telah berlaku kepada keluarga tesebut, kita akan lihat macam mana undang-undang sivil menangani kes kanak-kanak yang lahir dari perkahwinan yang tidak sah dan kemudiannya dari sudut agama Islam pula. Sekularism Seperti Rahman telah sebutkan tadi, masa dia nak registerkan nama anaknya di JPN di sebelah namanya ada “permohonan s.13” yang bermaksud Permohonan Seksyen 13. Permohonan tu sebenarnya merujuk kepada Akta 299 Pendaftaran Kelahiran dan Kematian 1957 dan telah tertulis disitu bahawa: “….. Bagi anak yang tidak sah taraf, nama ibu (Ibu secara sukarela memberi maklumat tentang dirinya) boleh diletakkan sebagai nama keluarga dengan syarat orang yang mengaku dirinya menjadi bapa kanak-kanak itu mengikut seksyen 13 meminta sedemikian” Seksyen 13 juga menyatakan bahawa sewaktu pendaftaran anak tidak sah taraf/anak luar nikah, pendaftar tidak perlu mencatit maklumat bapa melainkan atau sehingga ibunya dan sesiapa yang mengaku menjadi bapa kepada kanak-kanak tersebut diminta untuk mendaftar. Perlu diingatkan bahawa mengikut definisi JPN, anak tidak sah taraf ni bermaksud kanak-kanak tersebut dilahirkan hasil dari perhubungan ibubapa yang tidak berkahwin. Tapi menurut Islam pula (seperti yang telah dinyatakan di atas tadi), ada tempoh masanya sendiri untuk membenarkan kanak-kanak tersebut di ‘bin’-kan bapanya berkahwin dengan ibunya. Untuk memahami lebih lanjut, skrol bawah lagi… Islam Sebelum tu, mari kita tengok apa maksud fatwa. Fatwa merupakan satu perundangan yang telah dipersetujui oleh golongan bijak pandai agama (mufti) berkenaan dengan agama Islam terutama sekali sesuatu perkara tu tidak terang diperjelaskan. Fatwa 1981 “Muzakarah Jawatankuasa Fatwa Majlis Kebangsaan bagi Hal Ehwal Ugama Islam Malaysia Kali ke 1 yang bersidang pada 26-29.1.1981 telah membincangkan Penamaan Anak Tak Sah Taraf (Anak Luar Nikah). Muzakarah telah memutuskan bahawa: Anak zina atau luar nikah (anak tak sah taraf) sama ada diikuti dengan perkahwinan kedua pasangan ibu bapanya atau tidak hendaklah dibinkan atau dibintikan kepada Abdullah.” Fatwa 2003 “Muzakarah Jawatankuasa Fatwa Majlis Kebangsaan bagi Hal Ehwal Ugama Islam Malaysia Kali ke 57 yang bersidang pada 10.6.2003 telah membincangkan mengenai Anak Tak Sah Taraf. Muzakarah telah memutuskan seperti berikut: a. Anak Tak Sah Taraf ialah: 1. Anak yang dilahirkan di luar nikah sama ada akibat zina atau rogol dan dia bukan daripada persetubuhan syubhah atau bukan daripada anak perhambaan. 2. Anak dilahirkan kurang dari 6 bulan 2 lahzah (saat) mengikut Takwim Qamariah daripada tarikh tamkin (setubuh). b. Anak tak sah taraf tidak boleh dinasabkan kepada lelaki yang menyebabkan kelahirannya atau kepada sesiapa yang mengaku menjadi bapa kepada anak tersebut. Oleh itu, mereka tidak boleh pusaka mempusakai, tidak menjadi mahram dan tidak boleh menjadi wali.” Senang cerita, menurut fatwa pada tahun 1981 telah menyatakan bahawa anak tidak sah taraf perlu di ‘bin’-kan Abdullah (atau binti) manakala fatwa tahun 2003 pula menyatakan kanak-kanak yang dilahirkan kurang dari 6 bulan daripada tarikh ibubapa bersetubuh dianggap sebagai anak tidak sah taraf. Jadi untuk isu Rahman dan Aisyah bermula apabila anak mereka Adam dilahirkan 3 bulan selepas mereka berkahwin. Jadi nak ikut yang mana satu? Yang mana lebih berkuasa? Kedudukan syariah dan fatwa di dalam undang-undang Malaysia Memandangkan Malaysia merupakan sebuah negara majmuk yang mengandungi pelbagai agama dan budaya, kadang-kadang tu kita kena selitkan apa yang patut supaya semua agama dan budaya dapat terlibat sama. Tapi sayangnya tak semua benda boleh dicampur aduk macam rojak, malah masalah keluarga Rahman bermula apabila 2 fatwa agama telah bercanggah dengan undang-undang sivil. Untuk memahami kedudukan fatwa di dalam undang-undang sivil, kita dahulu perlu merujuk kepada Perlembagaan Persekutuan terutama sekali di Artikel 3, 76, dan Jadual Kesembilan. Artikel 3 menyatakan bahawa Islam merupakan agama rasmi Malaysia dan segala perundangan agama Islam berada di bawah kuasa negeri dan Sultan di negeri masing-masing. Di artikel 75 pula menyatakan bahawa jika undang-undang negeri bertentang atau bercanggah dengan undang-undang sivil maka undang-undang negeri tersebut secara automatik tidak mempunyai kuasa. Di bawah Hal Perkara undang-undang persekutuan dan Negeri, Jadual Kesembilan ada menyatakan bahawa terdapat beberapa kawasan di negeri-negeri Malaysia dibenarkan untuk mengadakan undang-undang mereka sendiri yang digubal oleh Dewan Undangan Negeri yang berkenaan. Ini termasuk jugalah hal ehwal agama Islam di mana perkara seperti wasiat, perkahwinan, penceraian, pengambilan anak angkat, dan macam-macam lagi. Untuk memudahkan pemahaman lagi: Sultan dan mufti di setiap negeri mempunyai kuasa untuk mengeluarkan fatwa dan jika mendapat persetujuan dari Dewan Negeri masing-masing, ia boleh menjadi undang-undang negeri berkenaan. Mufti di setiap negeri boleh memilih sama ada untuk mengambil atau menolak fatwa yang dikeluarkan oleh Majlis Fatwa Kebangsaan Malaysia Fatwa hanya boleh menjadi undang-undang kalau ia berkaitan dengan undang-undang syariah seperti perkahwinan, penceraian, wasiat, dan macam-macam lagi Kalau fatwa yang menjadi undang-undang negeri bertentangan dengan undang-undang sivil maka undang-undang fatwa tersebut secara automatik akan tidak mempunyai kuasa Undang-undang negeri biasanya dikenali sebagai enakmen atau ordinan Seperti yang telah ceritakan tadi, kisah ‘Bin Abdullah’ bukanlah satu cerita yang asing, malah ada satu lagi keluarga ni berjaya mengheret JPN ke mahkamah. Keluarga di Johor saman JPN kerana isu ‘Bin Abdullah’ Secara ringkasnya, pasangan di Johor ni telah melahirkan anak mereka 5 bulan 24 hari selepas tarikh perkahwinan mereka. Ayahnya (media telah mengelarnya sebagai MEMK) telah mendaftarkan anaknya tu di bawah seksyen 13 setelah mendapat perakuan dari ibunya (media mengelar si ibu sebagai NAW), dan anak mereka telah diberikan nama ‘Bin Abdullah’ di surat beranak dengan kelulusan dari pihak JPN. MEMK kemudian membuat permohonan kepada JPN untuk menukar nama anaknya dari ‘Bin Abdullah’ kepada ‘Bin MEMK’ (obviously bukan nama betul, semata-mata untuk artikel ni sahaja) tetapi permohonan mereka telah ditolak di mana MEMK dan NAW telah ke mahkamah untuk menyaman JPN. Sewaktu di Mahkamah Tinggi, hakim telah menyebelahi pihak JPN dan berkata bahawa JPN telah mengikuti undang-undang di mana ia selari dengan undang-undang Islam. Tidak puas hati dengan tindakan tersebut, MEMK telah membuat rayuan di mana Mahkamah Rayuan telah menolak keputusan Mahkamah Tinggi. Berikut merupakan beberapa soalan yang telah dikemukan kepada Mahkamah Rayuan: Adakah Pengarah JPN mempunyai kuasa untuk memberi nama ‘Bin Abdullah’ kepada anak luar nikah Adakah Seksyen 13 perlu ditulis di sebelah nama kanak-kanak tersebut di surat beranak untuk mengetengahkan status luar nikah tersebut? Adakah fatwa tersebut boleh digunakan sebagai sumber kuasa undang-undang untuk menentukan nama keluarga (Ayah) kanak-kanak tersebut di bawah Seksyen 13A(2)? Adakah fatwa tersebut mempunyai kuasa undang-undang? Apakah alasan asas JPN untuk memasukkan isu agama dalam proses membuat keputusan mereka? Secara ringkasnya, Mahkamah Rayuan tidak bersetuju dengan keputusan Mahkamah Tinggi kerana undang-undang tertulis di Seksyen 13A(2) adalah terang dan nyata. Sudah tertulis disitu bahawa anak luar nikah perlu diberi nama berdasarkan: Si ibu secara sukarela untuk memberi maklumat atau Ayahnya sendiri mendaftarkan dirinya di bawah Seksyen 13 dan memohon untuk anaknya diberi kebenaran untuk meletakkan nama ayahnya sekali. Tidak ada yang tertulis bahawa kanak-kanak tersebut perlu menggunakan ‘Bin Abdullah’ sebagai nama bapa. Selain dari itu, mahkamah telah menyatakan bahawa Akta 299 tidak membuat sebarang penyataan bahawa ia patutnya tertakluk kepada kanak-kanak Islam atau tidak. Keputusan JPN untuk merujuk kepada fatwa yang dikeluarkan pada tahun 2003 telah bercanggah dengan Seksyen 13A(2), malah hakim juga telah berkata: “Kuasa JPN hanya tertakluk kepada undang-undang sivil… Dan kerana itu, pegawai tersebut tidak mempunyai kwajipan atau kuasa untuk mengikuti fatwa yang telah dikeluarkan oleh Jabatan Agama…Ini secara tidak langsung telah menarik hak MEMK seperti yang telah tertakluk di bawah Seksyen 13A(2) untuk menamakan nama anaknya di surat beranak. Fatwa mahu pun pengumuman agama oleh Jabatan Agama tidak mempunyai kuasa undang-undang...JPN tidak mempunyai kuasa untuk mengambil undang-undang Islam dan meletakkannya di bawah Seksyen 13A(2), maka tiada sebarang alasan untuk menggunakan isu agama sebagai faktor dalam membuat keputusan” – (SIC) Abdul Rahman Sebli JCA, A Child & Ors lawan Jabatan Pendaftaran Negara & Ors, 25 Julai 2017 Menurut Mahkamah Rayuan, fatwa tidak mempunya kuasa undang-undang malah untuk kes ni JPN tidak mempunyai alasan untuk membawa isu agama sewaktu membuat keputusan. Malah mahkamah rayuan tersebut berkata bahawa jika fatwa tersebut mempunyai kuasa undang-undang, ia hanya tertakluk dengan hukum syarak dan tidak mempunyai apa-apa kaitan dengan tugas atau objektif JPN. Mahkamah juga berkata bahawa Seksyen 13 hanyalah prosedur untuk bapa mendaftarkan anaknya yang luar nikah. Ia bukanlah satu keperluan untuk meletakkan seksyen 13 di sebelah nama anak di surat beranak. Selepas naik turun mahkamah, ia telah diputuskan bahawa MEMK dibenarkan untuk di ‘bin’-kan oleh anaknya kerana JPN tidak mempunyai kuasa untuk menarik hak bapa tersebut. Pertempuran bagi dua keluarga ni masih belum berakhir Setakat artikel ni ditulis, JPN sudah pun membuat permohonan ke Mahkamah Persekutuan dan sedang menunggu perbicaraan yang akan berlangsung pada bulan Febuari ni. Jika Mahkamah Persekutuan menyebelahi pihak MEMK dan NAW, ia juga akan menjadi berita baik untuk Rahman dan Aisyah (kes pertama tadi yang kami ceritakan). Ini bermaksud anak mereka, Adam, akan mempunyai IC dan sempat untuk Adam mengambil peperiksaan PT3. Jika Mahkamah Persekutuan berpihak kepada JPN, Rahman dan Aisyah akan mempunyai satu dari tiga pilihan tersebut: Mendaftarkan Adam sebagai Adam bin Abdullah dan hadap kesannya kemudian hari Melakukan proses tabbani – iaitu mengambil Adam sebagai anak angkat (memandangkan di mata undang-undang Adam bukannya anah Rahman yang sah) dan nasabkan Adam (jadikan Adam secara rasminya keturunan Rahman) Tukar nama Rahman (berpandukan undang-undang) kepada salah satu 99 nama Allah dan ‘bin’-kan Adam kepada nama tersebut Sudah tentu pilihan mereka tidak menarik kepada Rahman mahu pun Aisyah memandangkan Adam terpaksa dibelengu dengan pelbagai soalan dan serangan emosi. Aisyah juga telah berkata: “Kalau pihak JPN kata mereka merujuk kepada fatwa untuk menbin Abdullahkan anak saya sekarang, saya nak tanya pihak JPN, anak saya kafir lah dari masa bayi sampai umur 12?” – Aisyah, ibu Adam, sewaktu interview dengan ASKLEGAL Adam yang sekarang ni baru masuk Tingkatan 2 (14 tahun) masih tidak mempunyai IC dan paling teruk untuk Rahman dan Aisyah, Adam sudah mulai syak sesuatu benda tidak kena kerana dia masih tidak mendapat IC-nya. Setakat ni Rahman dan Aisyah masih tidak menceritakan kisah ni kepada Adam lagi kerana tidak mahu menggangu dengan emosi Adam. Perbualan kami tamat apabila kita keluar dari bilik interview dan ternampak Adam yang duduk menunggu ibubapanya. Kami mengucapkan selamat tinggal kepada Rahman dan Aisyah yang kelihatan sedih. [Kemas kini Feb 2020: Mahkamah menjatuhkan keputusan] Mahkamah Persekutuan telah membalikkan keputusan mahkamah pada 2017, yang membenarkan anak orang Islam yang tidak sah taraf untuk di bin atau bintikan nama bapanya, dan tidak perlu ‘di bin atau binti Abdullah’. Mahkamah memutuskan bahawa: 1. Anak orang Melayu Islam yang tidak sah taraf tidak dibenarkan untuk menggunakan nama bapanya. Ini kerana Seksyen 13A Akta Pendaftaran Kelahiran dan Kematian 1957 (BDRA) tidak terpakai bagi pendaftaran kelahiran anak orang Melayu Islam kerana orang Melayu tidak menggunakan nama keluarga. 2. JPN (Jabatan Pendaftaran Negara) diarahkan untuk mengeluarkan ‘bin Abdullah’ daripada sijil kelahiran kanak-kanak itu dalam kes ini. Sebelum ini, Majlis Fatwa Kebangsaan telah mewartakan bahawa anak tidak sah taraf perlu di bin atau binti Abdullah. Tetapi, apabila kes ini bermula, fatwa untuk menamakan anak tidak sah taraf belum lagi diwartakan di Johor – tempat lahir anak di dalam kes ini. Dengan sebab itu, JPN tidak boleh menguatkuasakan fatwa tersebut untuk kes ini. Masih lagi belum ada keterangan sama ada anak tersebut akan menggunakan apa-apa nama akhir. Kami akan mengemaskinikan artikel ini apabila kami mendapat pengesahan."
"Can Malaysian bosses fire you for being pregnant? One morning, you find yourself in the toilet throwing up everything you ate. It has been happening consistently for the past couple of days. Then, it hits you! What if…? Could it be? You decide to check using a pregnancy test that you bought recently. Two lines appear on the test, telling you exactly the kind of news you were hoping for! You and your spouse did it! After so many tries, you are finally pregnant. As you plan and prepare your house for the arrival of your baby, you are reminded that you will need to take leave from work when you go into confinement. So, how do you go about applying for this maternity leave that you have heard so much about? What is maternity leave and what benefits are there for me? Maternity sounds like a much anticipated leave for any expectant mother. You get time off from work to bond with your newborn baby and recuperate from the hard time you had bringing him/her into the world. Not only that, you actually get paid doing so! According to section 38 of the Employment Act 1995: “The maternity allowance referred to in subsection 37(2) and accruing in each wage period under the contract of service of the female employee shall be paid in the same manner as if such allowance were wages earned during such wage period as provided in section 19.” What this means is you will be paid your usual salary while you are on your maternity leave! [READ MORE: If you boss refuses to pay you in Malaysia, what can you do?] Think of it as how you would get paid while going on your annual leave. HOWEVER, do note that that the Employment Act 1995 only applies to Peninsula Malaysia. If you are working in Sabah and Sarawak, different laws will apply. Aside from that the Employment Act only applies to those who are earning RM2,000 and below but don’t fret if you earn more than that because you are still protected and we will discuss this later on in the article. So, does that mean any pregnant woman can apply for maternity leave? Unfortunately, no. You are only entitled to maternity leave once you have fulfilled certain requirements stated in section 37 (2)(a) of the Employment Act 1992: “(i) she has been employed by the employer for a period of, or periods amounting in the aggregate to, not less than ninety days during the nine months immediately before her confinement; and (ii) she has been employed by the employer at any time in the four months immediately before her confinement” This means you must have worked at least 90 days for your current employer within the 4 months leading up to your confinement period before you are entitled to your maternity leave benefits. Sounds like an acceptable requirement to fulfil considering that you will be getting full pay while taking time off from work. Which brings us to our next question... How much time off from work am I entitled to? According to section 37 (1)(d)(ii) of the Employment Act 1995 … “eligible period” means a period of maternity leave of not less than sixty consecutive days Remember, 60 consecutive days is the minimum requirement of any maternity leave for any company. But there are some companies that may have longer maternity leave for their employees. So, you will need to check your contract or even the employee handbook for the exact number of days you are entitled to. While most expecting mothers start their maternity leave around the time when their baby is born, you can actually go on your maternity leave 30 days earlier than your confinement date. Again, there are requirements for that stated in section 37 (1)(b) of the Employment Act 1995: “… maternity leave shall not commence earlier than a period of thirty days immediately preceding the confinement of a female employee or later than the day immediately following her confinement: Provided that where a medical officer or the registered medical practitioner appointed by the employer certifies that the female employee as a result of her advanced state of pregnancy is unable to perform her duties satisfactorily, the employee may be required to commence her maternity leave at any time during a period of fourteen days preceding the date of her confinement as determined in advance by the medical officer or the registered medical practitioner appointed by the employer.” TL/DR: You need to provide a letter from your doctor if you need to go on your maternity leave 14 - 30 days earlier than your period of confinement. What happens if I am on or return from my maternity leave and find out that I have been fired? Touch wood if that happens. But before you cry your eyes out, do note that your employer has actually committed an offence because according to section 37 (4) of the Employment Act 1995: Any employer who terminates the service of a female employee during the period in which she is entitled to maternity leave commits an offence. So, if you get fired, you can lodge a complaint against your employer. Take the case of Aznalisa Yaacob v. Malayan Banking Berhad for example. Aznalisa Yaacob was under probation when she was seven months pregnant and found herself dismissed from her job. Her employer claims that it was because of poor performance. The case went to the Industrial Court where it was ruled in her favor as Puan Aznalisa was dismissed because of her pregnancy, not for her performance (due to the lack of warnings from her employer). HOWEVER, remember how we mentioned that the Employment Act does not apply if you earn above RM2,000? Well, this is how your rights can still be protected. Subsection 2(1) of the First Schedule of the Employment Act 1995: “Any person, irrespective of his occupation, who has entered into a contract of service with an employer under which such person’s wages do not exceed two thousand ringgit a month.” Since the Employment Act 1995 won’t protect you if this happens, you can look to the Industrial Relations Act 1967 as it states: Part 1 (2) of the Industrial Relations Act 1967: ““workman” means any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purposes of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute.” What this means is that if your salary amount is above RM2,000, you are protected by the Industrial Relations Act 1967 as long as you have a written contract with your employer. If you find that you are fired from your job, you can lodge a written complaint with the Director General of the Industrial Relations Department, who will then assign someone to look into the case, based on Section 18 of the Industrial Relations Act 1967. Usually any disputes under the Industrial Relations Act 1967 would be solved through conciliation proceedings (meaning it doesn’t go to court). However, there are times when a case is not so easily solved and that is when it would be brought to the Industrial Court for trial [Section 26 of the Industrial Relations Act 1967]. If you ever face a problem with your maternity leave, we highly recommend that you should check your contract and consult a lawyer about it to see how you can lodge a complaint. But what if I have not been fired, but demoted/moved to another department after I returned from my maternity leave? Vasanthi Suvalingam v. Price Solutions Sdn Bhd is an example where the employee found she was transferred to a different department upon her return from her maternity leave. Vasanthi Suvalingam worked in the Cancel File Unit (CFU) where she earned a nett income between RM4000 - RM5000. During the two years she worked in the department, she had received several awards for meeting the KPI. Then, she went on maternity leave. Upon her return, she found she had been transferred to Cards and Balance Transfer department, where her responsibilities and income were decreased. The case was taken to the Industrial Court based on her claim of constructive dismissal. The court upheld her claim and she was compensated. [READ MORE: My boss just fired me for no reason, what can I do now?] If this situation ever happens to you, make sure you have collected sufficient evidence and consult your lawyer about this. But what about the proposed maternity raise in Budget 2018? Yes, Prime Minister Najib Razak did propose to “increase paid maternity leave for employees from 60 days to 90 days”. However, there will be no increase in the minimum period of maternity leave until the proposal has been passed through the Parliament and comes into effect."
"6 ways to avoid scams when trading online in Malaysia It’s the age of buying and selling things online. While Malaysians may still throng shopping centres to buy essentials or hang out with friends and family during their downtime, shopping online is the preferred platform for anything ranging from secondhand electronics to beds, and even antique collectibles. However, many of us would be wary because we have heard of tons of stories involving scammers and fraudsters. While you may have your own set of guidelines on how to avoid scammers, it never hurts to add on to your repertoire by checking the points AskLegal writers learned while trading online. This article can be used for both buyers and sellers. First up is… 1. Use trusted platforms This means that you should choose to buy items off sites that are more established such as popular ones like Lazada, Carousell, or Lelong. While scammers are still trawling through those sites, at least having a properly managed site would decrease your chances of bumping into a scammer. Aside from that, the companies that manage such sites would be available for you to lodge a complaint with should you fall prey to any fraud. Certain sites like Lazada also provide customers with guarantees such as guarantees against fake or damaged products by offering refunds. The further added benefit of dealing with an established platform is being able to read reviews from other customers to set your mind at ease. Speaking of reviews, this leads us to our next point… 2. Never take reviews at face value This was based off a personal experience that one of our writers went through. He did everything by the book and even checked the reviews and found all good ones. Seems great, right? I mean, most of us rely on reviews to help us make a decision in buying things. Long story short, our writer started smelling a rat when the tracking number given to him was still not active on PosLaju’s site even after waiting until the next day to check. Lo and behold, a deeper look at the reviews revealed that they were all written in the same style and said more or less the same things (meaning that they were written by the same person). The clincher was the fact that we clicked on one of the reviewers’ profile and saw...the exact same mouse being sold (exact same picture and all the works). Our writer confronted the seller and laid out all the evidence. The seller started panicking and when pressed further, he stopped replying. His profile has now been suspended. Unfortunately we forgot to take screenshots of the seller’s profile before confronting him but the lesson of the story is to dig deeper. Don’t accept anything at face value, look carefully at the profile, the reviews + the reviewers’ profiles, and what is listed. A usual tip we learnt is that if all the products were listed at the same time, you should be wary. On the flip side, if you are a seller, don’t assume that everything is good if your buyer has good reviews. Take the time to talk to him/her and find out more before agreeing to reserve the item or sell it to him/her. Assuming that the profile, listings, and reviews all check out, the next step is payment but should you COD or transfer it? 3. Try your best to meet up If you are an old hat at dealing online, you would be familiar with the terms, “Postage only” or “COD”. Otherwise, “postage only” means that the seller/buyer is not willing to meet up and will instead send your item through PosLaju (usually) while “COD” stands for cash-on-delivery which means that you and the seller will meet up and you give him the money on the spot while he hands over your item. It is advisable to arrange for a COD because not only do you get to inspect the item and ensure that it is really in the good condition that you agreed to buy it for. If you are the seller, then you get to show your buyers that your item is as you described and it saves you the hassle of them trying to claim that you sent a damaged item. The absolute benefit of COD (for buyers, at least) is avoiding the gnawing worry you get when you transfer money over to someone, praying that they are not a scammer. However, when arranging for COD, there are certain safety precautions to take as well. The list below is a good start but it is not exhaustive: Bring along a friend if possible Meet in well-lit, public areas at reasonable hours – if the buyer/seller insists on meeting at a particular area that is not very public, be wary For buyers, avoid bringing large sums of money and try to ask your seller if it’s okay for you to do a bank transfer on the spot if everything checks out Another question that people would usually have is...should you pay a deposit for COD/postage? There is no hard and fast rule for deposits. Like every other contract out there, it is open for discussions and negotiations between you and your seller. However, you should be wary of paying deposits (or at the least, avoid paying a substantial one) if you have already arranged to do a COD because the seller might have agreed to a COD just to rope you into believing their trustworthiness and not show up later. However, it is not uncommon for sellers to ask for deposits from you to ensure that you don’t back out of the deal and in a way, they want to safeguard their interests as well. At the end of the day, do your research on the seller before agreeing to buy and trust your gut when it comes to paying deposits. This brings us to our next point of… 4. Always check your items extensively If you are meeting up for a COD, politely ask the seller if you can check the product over before handing the payment to him. Make sure that you extensively check the product and don’t rush over it. Make sure that the product you have corresponds with the seller’s description and pictures that you would have received before hand. If he has highlighted any damage to the item before that, have an eye out for those as well. If you are a seller, save your buyer’s time by being upfront and honest in the description of your product. If they want it, they gon want it even if it is dented at the side. Every type of product will require different kinds of checking but as a quick overview, here are some general things you should look out for but it’s not an exhaustive list: Electronic items - Make sure that all the buttons, screens, charging port etc are functioning perfectly - Make sure that the device is only as scratched/banged up as the seller has informed you and nothing more - Check the serial number and if the seller has signed out of all his accounts and done the factory reset; sellers if you are selling your Apple products, make sure you sign out of your Apple ID before doing a factory reset. This is to ensure that none of your data stays on your Apple product Clothing - Check the seams, buttons, and zippers Furniture - Check whether the joints are stable and if the everything works smoothly (drawers can draw out well) Toys and collectibles - Check if the joints are tight - Check if the paintwork is still in good condition - Check for a hologram sticker on the packaging If you have arranged for a postage, it might not be such a straightforward scenario. If you can, request for the seller to take pictures of the item before they post it out so that: You get a good idea of the condition of the product you are buying If the item arrives damaged, you can tell if it was damaged during handling by the post or if you were scammed This logic can be flipped if you are the seller as well as you would want your buyers to know that the item you are sending out is as described so that if the postage guys damage it, you won’t have an angry buyer screaming at you. This leads us to our next point… 5. Check your own account to make sure the money is banked in This point is more for sellers than buyers. For sellers, don’t take the screenshot of the transfer/receipt as final proof that the money has indeed been transferred to your account. This is because those receipts/proof of successful transfers are actually very easy to fake. The best thing to do is to check your own accounts after the buyer notifies you that they have transferred payment to you. On this topic of payment transfers, another point to note is to never bank in money to your buyers. This might sound like a pretty dumb thing to say because why would you, as a seller, bank in money to your buyer? Well...this is actually a common scam that some sellers have fallen for. This is another personal experience story so sit in for the story, folks. I was trying to sell off some items and was surprised when I got so many messages within 24 hours. My suspicions were slightly piqued when I noticed that the numbers had a +234 country code (a quick Google revealed that it was...Nigeria’s country code). Just for the kicks of it, I decided to reply all the messages and learnt a few things: They will make very vague references to your item – it is probably due to the fact that they are mass sending out messages like these and can’t remember who is selling what. These scammers never negotiate. Sometimes, they pretend to ask you about the condition of the item but most of the time, they just ask if its still available. They always, always tell you that they are Malaysias currently overseas, on a work trip (I’ve gotten Philippines and Scotland) and that they are buying this as a gift for a loved one. They will then ask for your bank details to effect a transfer and they will ask your email. Now, you guys know that when you are transferring money online in Malaysia, you don’t need the other guy’s email; just his name, account number, and bank. They will press you for your email, saying that it’s necessary for an international transfer but see...Malaysians merely only a work trip overseas won’t be able to open a bank account there and will have to transfer you money from a local account. In fact, this was one of the points that I pointed out to someone trying to scam me and bam; he stopped replying. I never got to the next stage of the scam where they start asking me to transfer money to receive money because I didn’t want to hand over my email and didn’t have a burner one on standby. Presumably, the scammers want your email so that they can gather your information/send you spam. Sometimes the number is not an international number but a local one. However, the modus operandi remains the same and for some very odd reason, these guys start off their messages with “Salam” (they probably think that Malaysians speak that way) and they usually steal some poor Malaysian fellow’s picture to be used as a Whatsapp profile picture. Just always be on your feet when dealing online and watch out for signs that the “buyer” is trying to pull a fast one over your head. Finally, always know what to do if you get scammed. 6. Always have a plan in case you get scammed The first way to avoid getting scammed is to look out for common scams such as: When the seller/buyer tries to rush you into making a decision by telling you that there are other buyers or that he is leaving overseas etc When the seller requests that you transfer money into his international account, if you really are buying goods from international sellers, use PayPal as an intermediary. The same argument applies if you are the seller dealing with an international buyer, skip the hassle and fear and just use PayPal Before transferring the money over or agreeing to a COD, there are actually two Malaysian websites that allow you to check if the person you are dealing with is trustworthy. The first is run by the government and is known as the Commercial Crime Investigation Department (“CCID”) and they have an online website where you can key in the seller’s bank account to check if he has been blacklisted. You can access the website here but do note that it is still in it’s trial stage. The second website is privately owned and managed and is called Tipu.my which you can access here. It allows you to key in your seller’s name, account number, or phone number to check if he has been reported as a scammer. Please bear in mind that names can be fakes and phone numbers can be changed. The safest route would be to check via a bank account number but even then, it is wise to exercise caution. If you have been caught by any scam, here are some pointers that we have picked up: Before confronting the seller/buyer, always screenshot everything – from your conversations to the seller’s/buyer’s profile and reviews Make sure to lodge a police report within 24 hours of discovering that you have been duped After making a police report, you can proceed to lodge another report with Bank Negara; you can do this by calling their hotline, 1300 88 5465 or emailing bnmtelelink@bnm.gov.my Keep all relevant documents (such as the reports) and screenshots for future use or if the relevant authorities need you to assist them in their investigations At the end of the day, we leave you with two notes in mind, trust your gut and if it’s too good to be true, it’s not true. P.S: If you guys have any tips that overlooked, we would love to hear from you!"
"Is it a crime to throw rubbish out of an apartment balcony in Malaysia? It’s been known for years that some residents of flats, apartments and sometimes even condominiums dispose of their trash in very… “creative” ways. Out their windows, off their balconies, off other people’s balconies, off the roof, there is no shortage of ways people have thrown their garbage irresponsibly. Things being thrown like this can be something as small as cigarette butts, and as large as bed mattresses. We’ve all thought it, but never thought it would happen: a poor soul got crushed under a chair that’s tossed by somebody off the upper floors of a block of flats in Kuala Lumpur. This was an unfortunate incident, and it could have been avoided entirely if some people were more considerate. This could happen to any of us. If it did, are there any laws that the culprit could have broken? What about if someone tossed a chair off their balcony and hit our car? Could we sue them? There is a distinction between criminal and civil laws and plain littering is not as severe a crime as if you litter AND it hurts/kills someone or damage their property. First off, plain littering At the very least, litterbugs who litter in public spaces will be liable under section 47 of the Street, Drainage and Building Act 1974: 47. (1) Any person who— (a) places, deposits or throws or causes or allows to be placed, deposited or thrown any dust, dirt, paper, ashes, carcase, refuse, boxes, barrels, bales or other article or thing in any public place; Yeah, littering is a no-no, boys and girls. It counts as littering whether it is a chair or a cigarette butt. People who are found liable can be fined up to RM 500 for their first offence, and a maximum of RM 1000 for subsequent offences. Local councils can enforce their own by-laws too, as seen in the image above. Regulation 9, Third Schedule of the Strata Management (Maintenance and Management) Regulations 2015 states that: A proprietor shall not – throw or allow to fall, any refuse or rubbish of any description on the common property or any part thereof except in refuse bins maintained by him or in refuse chutes or in refuse bins in common refuse chambers provided in the building This one refers more specifically to strata properties; anyone who dumps their garbage outside of rubbish bins or the common rubbish chamber(s) used by everyone in the building, will be liable of an offence. Management of the property has the right to impose a fine on offenders and the amount of the fine is subject to the management as well. More specific offences of littering and solid waste management can be found under regulation 26, third schedule of the same regulations. What if you dump something that can cause injury or death? More severely, littering and causing injuries/death or damaging property On to the big leagues. Let's say someone dumps a chair off their balcony and it damages your car. They can be liable under section 425 of the Penal Code: 425. Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or any person, causes the destruction of any property, or any such change in any property, or in the situation thereof, as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”. What it says is anyone who damages someone else’s property, like throwing garbage off a balcony and damaging someone else’s car, is liable of mischief. Mischief is punishable by a jail term of up to 5 years, and/or a fine (the amount of the fine is not specified in the Act). If you’re wondering whether you can sue someone for damaging your property, you’ll find out further down in the article! That’s not all. The Penal Code also provides for when someone throws garbage off a balcony and injures or kills another person. Different sections apply depending on the nature of the injury and/or death. There are a few sections applicable here, so please stay with us. Injuring someone – Section 321 of the Penal Code provides for voluntarily causing hurt. It applies when the person was doing something with the intention to cause hurt and when he doesn’t have the intention to cause hurt, but knows that what he’s doing is likely to cause hurt. If found guilty, one can be imprisoned for up to a year, be fined up to RM 2000, or both. Grievously injuring someone – Section 320 of the Penal Code defines what “grievous hurt” is, and includes, but is not limited to, blinding someone, disfiguring someone and endangering someone’s life. Section 322 proper provides for voluntarily causing grievous hurt. If found guilty, a jail term of up to 7 years, a fine (amount not specified) or both may await you. Actually killing someone – Well, most people who dump their garbage off their balconies don’t usually do it with the intention of killing someone. If they do unintentionally kill someone, they may be charged with culpable homicide not amounting to murder, under section 304 of the Penal Code. At the risk of oversimplification, it means that the person has killed someone without the intention of doing so. If found guilty, the offender may be sentenced to imprisonment for up to 10 years, a fine (again, amount not specified) or both. That more or less wraps up the legal trouble you can get into with the authorities if you dump garbage off the rooftop of your apartment. You think that’s bad enough? Think again. You can get sued as well. Yes, you can be sued as well Specifically, if the garbage you dump happens to injure or kill someone, or if you dump the garbage in a way that damages another person’s property. There’s a more in-depth article on personal injury and property damage in this article, but for now, we’ll give you guys a simplified version of things. [READ MORE: Can you sue for personal injury in Malaysia?] A few example scenarios where you can sue is if and when: Someone dumps their garbage and you get injured by said garbage, like if someone throws a chair off an apartment balcony and it injures you Someone dumps their garbage and something you own gets damaged, like if the garbage dents your car Someone dumps their garbage and you/your immediate family gets killed by said garbage, like if someone throws a chair off an apartment balcony and it kills you/your immediate family It’s not as simple as it sounds, though, because whether you can sue or not, and the chances of winning a civil suit are highly dependent upon the facts of the case. There are lots of factors that come into play, including but not limited to: the kind of injury sustained, whether or not the victim was contributorily negligent (was he also careless), and the length of time that’s passed since the incident. Plus, you’d need to identify the person who threw the garbage. Littering never pays To hit the point home, a general worker was almost killed by falling steel chair a few days ago in Bangsar. Dewan Bandaraya Kuala Lumpur (DBKL) has announced its intentions to impound (sorta like a clamp, but for real estate) units of people who habitually litter. So yes, you can get into trouble with the government if you throw rubbish off a balcony in Malaysia, or if you litter anywhere else, really. Other people can sue you, and what’s more, you hurt the environment. People might think that littering is a victimless crime, unlike more violent crimes like assault or murder. Not so. Aside from the examples above, the environment takes a huge hit from littering. Solid waste in Malaysia usually goes to landfills because of littering and the absence of the culture recycling, and that’s not a good long-term solution. It affects the waterways of our country, as the garbage and the ooze from the garbage enter the water sources, extra filtration management is needed, otherwise, the water that we use to cook and clean our clothes will be contaminated. Don’t litter, ladies and gentlemen. Call your local council if any of your neighbours are littering!"
"Is robbing graves a crime in Malaysia? As Malaysian, we’re part of a multicultural society of all sorts of cultures with many different roots. With great diversity, comes a great number of funeral rites. Some of us cremate our dead, and some of us bury our dead. But some cultures also bury valuables with their deceased - typically jewelry, personal belongings, and even practical everyday items like money, cars, and clothes. You might be familiar with some Chinese customs where the family burns paper money, a car, a house, and even gadgets for their deceased relative. Sometimes, you get a person who wants to take advantage of these practices. So graves get unearthed and the valuables are taken by grave robbers, or as popular culture knows it - tomb raiders. There have been many reported incidents of grave robbing before, such as when the Iban were hit by mass grave robbing and these graves in Miri were dug up and cleaned out. But stealing is obviously illegal, and stealing from graves is sacrilegious and disrespectful. This article was actually inspired by this recording from Siakap Keli which was forwarded to us. A man actually called the PDRM and asked about the consequences for digging up valuables from Chinese graves. So what does Malaysian law say about grave robbing? Legally speaking, there’s this question to consider... Is it considered theft if they’re already dead? Theft by definition is to take someone’s belongings without their permission, but can a dead person still own property? When the family leaves valuables with their loved one’s remains, it’s unclear whether the valuables belong to the deceased, or the family. But since the family is leaving the items with them, let’s go with the assumption that it belongs to the deceased. This is more of a technical curiosity, but according to the law, a dead person can still be a person with legal rights. Among which, they can own copyright (until 50 years after death), and also pass down their property through a will. The definition for theft under Section 378 of our Penal Code is: “Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.” So while a dead person might be sleeping there without a want in the world, taking away what their family left for them might still be considered theft. Theft is going to be a pain to prove unless the court decides whether the valuables really belong to anyone, but is going into a graveyard and digging things up a crime in itself? Your local council controls which bodies can be dug up Being in a graveyard when you’re not supposed to is a recognized crime in Malaysia. Under Section 297 of the Penal Code, trespassing on burial places knowing that people might be offended is an offence that can earn you 1 year of prison, and/or a fine. “Whoever,… with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sepulture or any place set apart for the performance of funeral rites, or as a depository for the remains of the dead or offers any indignity to any human corpse or causes disturbance to any person assembled for the performance of funeral ceremonies, shall be punished with imprisonment for a term which may extend to one year or with fine or with both.” This definition doesn’t seem to cover situations where even the bodies have been taken from graves, like what happened to the Nanga Tada people. That’s a whole new level of disrespect for the dead, but there’s a law that can be used against grave robbers - did you know that digging up human remains without proper permission is illegal? Under Section 97 of the Local Governments Act 1976, digging up (exhuming) dead bodies can only be done in 2 ways in Malaysia: By court order for an investigation Under a license from the local authority This license cannot be given where the cause of death was an infectious disease that needs to be controlled through quarantine, or where the corpse is buried for less than 5 years (unless special circumstances are present). The penalty for illegally exhuming a dead body is a fine up to RM5,000 and/or 1 year of jail. You’re probably not going around robbing graves, but... In the recording we linked earlier, the police officer notes that digging up another person’s grave is wrong. He also says that if you need to dig up your relative’s grave for any reason, you should go to the police for permission beforehand. You probably don’t go around digging up graves for treasure, and grave robbers are not that common (unlike snatch thieves). But if you ever encounter someone suspicious digging up a grave, stealing objects from altars, or taking the remains, you’d obviously call the police. It might mean the robber’s funeral."
"What are your rights if you get arrested by the PDRM? A bad day for some might be having a flat tyre on the way to work, for some it may be getting arrested by the PDRM. You may think that you would only get arrested if you were caught doing a serious offence like theft or assaulting someone. But, there are instances where you actually can get arrested for something less serious like unpaid summonses. We hear a lot about Miranda Rights on TV shows – the “You have the right to remain silent...” stuff – but what rights do you have if you’re arrested in Malaysia? Not just that, how would you know if the PDRM are acting within their powers? PDRM must tell you why they are arresting you A.S.A.P One of the first questions you might ask is: How do you know if you are being arrested in the first place? Will the arresting officer tell you he is arresting you? The answer is – NOT NECESSARILY. An arrest will only be lawful if the PDRM satisfies the requirements in Section 15 of The Criminal Procedure Code, or the common law (established cases). Section 15(1) of the Criminal Procedure Code provides 3 ways in which an arrest may be made 1) By actually touching the body of the person to be arrested 2) By actually confining the body of the person to be arrested 3) Where there is submission to custody by word or action (ie, when the suspect puts their hands up in surrender). According to the case of Chong Fook Kam & Anor v. Shaaban & Ors [1968], a common law arrest occurs when: “A police officer states that he is arresting OR uses force to refrain the individual concerned OR when he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go.” If a police officer does any one of the things mentioned in Section 15(1) or Shabaan’s case, it is safe to say you are being arrested. However, the police officer must inform you why you are being arrested either while arresting or immediately after they arrest you. Article 5(3) of the Federal Constitution provides: “Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.” This provision is a constitutional right. Because the Federal Constitution is the supreme law of Malaysia, other laws which attempt to interfere with a constitutional right may be declared invalid. The scope of this constitutional right was considered in the case of Christie & Anor v Leachinsky [1947], In this case, the accused was wrongly arrested without a warrant, and he was not informed as to why he was being arrested. The Court stated 3 important points regarding the scope of this right: You must be informed of the TRUE GROUNDS of the arrest. Meaning, the arresting officer cannot keep the reason to himself or give a false reason. If you’re not informed of the grounds of arrest, it may be considered “false imprisonment” (detaining someone without lawful authority) Technical or precise language is not necessary when informing the reason of arrest. This means that the officer doesn’t need to use the technical term for the crime you committed (it’s more of a procedural thing). In addition to that, the court also added exceptions where the PDRM do not need to state the reason for an arrest. These instances are where the accused: Makes it impossible for the PDRM to inform the reason for arrest, such as if they were violent or tried to run away during the arrest. Should already know why they are being arrested, such as if they got caught trying to burn down someone else’s house. Because they were caught in the act, the reason for their arrest is obvious. It should be stated that being arrested doesn’t mean you’re guilty – that’s something for the courts to decide. So in this sense... [READ MORE – Getting arrested doesn’t mean you’re a criminal – yet] The PDRM must allow you to contact your lawyer This is probably one of the most important rights you have as a Malaysian citizen, because a lawyer can assist you and make sure the PDRM are not abusing their powers. This right afforded to you is also a constitutional right, and it is laid down in the earlier mentioned Article 5(3) of the Federal Constitution. This right would be relevant in two scenarios which are the moment right after arrest, and during court proceedings. Simply put, you can talk to your lawyer while you are detained in a lock up, and you can also make sure you are represented by a lawyer later in court. An example of a situation where a lawyer would be useful is if the PDRM tries to detain you for longer than legally allowed. There are ways that the arrest period can be extended, but a lawyer can tell you how long you can be legally detained, as well as help get you out. The Criminal Procedure Code actually provides the scope of the right to consult a lawyer, as well the responsibilities the PDRM has in facilitating the exercise of this right. Section 28A of the Criminal Procedure Code says that before any questioning, you must be informed that you can contact or consult a lawyer of your choice. If you choose to exercise that right, the PDRM must allow time for the lawyer to meet and consult with you. Section 28A(5) further provides that the consultation can take place within the sight of the PDRM, but they cannot listen to your conversation. In summary, you not only have a right to a lawyer, but the PDRM has a responsibility to inform you of that right and facilitate your exercise of that right. However, this right to a lawyer is not absolute and comes with reasonable exceptions. The PDRM can deny you a lawyer if they think it would result in an accomplice escaping or some form of tampering with evidence. This can only be done with the approval of an officer with the rank of Deputy Superintendent or above. This can be found in Section 28A(8) of the Criminal Procedure Code: “(8) The requirements under subsections (2), (3), (4), (5), (6) and (7) shall not apply where the police officer reasonably believes that— (a) compliance with any of the requirements is likely to result in— (i) an accomplice of the person arrested taking steps to avoid apprehension; or (ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or (b) having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should not be delayed.” Further, according to the case of Saul Hamid v PP, it was held that: “...generally an arrested person has a right to be represented by a legal practitioner in remand proceedings before a Magistrate under section 117 unless the police can discharge the onus of satisfying the Magistrate that to allow him to exercise that right would result in undue interference with the course of investigation” In essence, the PDRM has the burden of proving that their investigation will be affected by you consulting with a lawyer. The PDRM must also allow you to appear before a judge This is another important constitutional right you have as a person under arrest. A democracy like Malaysia requires government officials (like the PDRM) to perform their duties according to the law. The courts supervise and make sure that these officials act within the law. So if the PDRM has acted outside their legal powers while arresting you, the courts can actually help you out. To make sure an arrested person can exercise this right, Article 5(4) of the Federal Constitution provides that: “Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority” (emphasis added) In other words, after an arrest, the PDRM is only allowed to detain you for 24 hours, and if they want to keep you for longer they need permission from a Magistrate. When a person under arrest is brought before a Magistrate, the Magistrate determines if the arrest and detention is done legally, and decides (if there’s a request from the police) if you should be detained longer. The scope of this right and limitations are explained in Section 28 of the Criminal Procedure Code. It provides that the time limit of 24 hours are subject to holidays and travel time. To put it into perspective, if you are arrested on a Friday evening, you would only be brought to the Magistrate on a Monday. Can you challenge a wrongful arrest or detention? Actually, yes. In fact, there are 2 ways you can challenge a wrongful arrest or detention. This would be either via plea of self-defence or applying for a writ of habeas corpus. When it comes to self-defence, there are a few cases where people have been charged for resisting and assaulting police officers during an arrest. But sometimes during the trial, the courts find that the arrest was illegal. The case of PP v Ong Kee Seong(1960) explained that an accused cannot be found guilty for assaulting the police during an illegal arrest because he was acting in self-defence. Applying for a writ of habeas corpus is basically an application to the High Court to release a person wrongly detained and is governed by Section 365 to Section 374 of the Criminal Procedure Code. The application to the High Court must be made by a sworn document, made by you as the detainee. However, if your detention was illegal it may be hard for you to make such a document; in which case someone who knows about your arrest or your lawyer can make the sworn document. This document must contain the location of arrest, the facts of the arrest, and the name of the person in charge of the arrest. The other remedies you can receive from the court include damages (meaning you sue the police), which would be money if you suffered loss or injury as decided in PP v Kok Khee (1963). For example, if you were injured because of the unlawful arrest, you can claim for compensation to treat your injury. An arrest is not illegal if it was a genuine mistake by the PDRM An exception to wrongful arrests is when the PDRM made an honest mistake in arresting you. In the case of R v Tan Eng Hoe, the PDRM was looking for a suspect with certain physical features. They then mistakenly arrested someone with similar features. Judge Whitley J stated in the case that: “The police clearly acted bona fide without passion or prejudice and in my view following the words of Tindall C.J. quoted above 'the circumstances were such that any reasonable person acting without passion or prejudice would have fairly suspected the petitioner of being the person who did it.’ The Defendant is accordingly entitled to judgment.” Because the PDRM acted in good faith and it was a genuine mistake, the court dismissed the claim. So if the PDRM are looking for a suspect with certain physical features and you look very similar to the suspect, arresting you by mistake will not be a wrongful act by the police. Another scenario to consider is where a person was wrongfully arrested or detained, but was actually involved in a crime. Will his charges be dropped? Must they stop the rest of the court proceedings? Following the case of Saw Kim Hai v R(1956), it was decided that: “It is settled law that when an accused person is before a Court the Court has jurisdiction to try him notwithstanding the fact that his arrest may have been illegal” This basically means a criminal who is guilty of an offence can still be tried in a court of law, even if arrested illegally. However, this would not prevent them from suing the PDRM if the officers acted maliciously. There is a more convenient way to challenge a wrongful arrest If you feel like you have been wrongly treated by the PDRM but would prefer to avoid the costs and hassle of taking the case to court, there’s actually a free avenue for complaints via the SISPAA service that was set up by the PDRM themselves. You can file a complaint by clicking on this link."
"If there's a fly in your teh tarik, you can sue because of a Scottish snail Now that was a story all about how The law of negligence got flipped turn upside down And I’d like to take a minute Just sit right there I’m gonna tell you how a snail gave two ladies a scare If you’ve been a longtime reader of Asklegal, chances are, you’re somewhat familiar with the concept of negligence. If you’re a new reader, welcome, it’s all good. You can still catch up by reading a comprehensive article on negligence, also by us here. Today, we’re gonna be telling the story of the case of Donoghue v Stevenson, widely regarded as the UK case that established the principles of modern negligence. This case is why our food and products are supposed to be clean and safe for consumers. This ranges from clothing to food to toys; for example, toy manufacturers should be careful to not make dangerous toys for kids, because you don’t want kids dropping to the floor left and right after playing with them. This story is quite popular and widely covered, but we’ll be referring to the case law from the Scottish Law Reports website. It all started with a nice ol’ cafe in Glasgow, Scotland… All good stories start in a cafe On a breezy evening in August 1928, May Donoghue and an unnamed female friend (let’s call her Jane) were on their way to have a good time. It was just getting chilly, and the two friends headed towards the Wellmeadow Café. Apparently back then ordering pears in cafes was a thing, because Jane ordered a pear and ice for herself. For May, Jane ordered her a Scotsman ice cream float. No, it’s not an ice cream float playing the bagpipe, it’s ginger beer poured on a scoop of ice cream. Incidentally, the bottle of ginger beer was opaque (you can’t see through it). The owner himself came over with a tumbler of ice cream, and a bottle of ginger beer. He scooped out some ice cream, put it in a glass, and poured some ginger beer over it. So far, so good. It wasn’t until a bit later that a decomposing snail fell out with a plop! from the bottle while Jane was pouring out the remaining ginger beer. Understandably, the ladies were disgusted. May later said she felt ill the moment she saw the rotting snail in the glass. At first, all hope seemed lost May subsequently fell physically ill and had to be admitted to Glasgow Royal Infirmary for “emergency treatment”. The doctors diagnosed her with severe gastroenteritis and shock (a horrendously bad tummy ache, and trauma). Now I know what ya’ll are thinking: sue the pants off the manufacturer! Sadly, the law hasn’t allowed for that at the time. See, back then, the common law only acknowledged a duty of care was only owed to victims of negligent acts in specific and limited circumstances. One of them is if there was a contractual relationship between the victim and the person who was negligent. However, this presented a problem because the circumstances in the Donoghue case wasn’t so clear cut. As a refresher: There’s May, who was the actual victim of having a decomposing snail in her drink, but did not have a contract with the cafe owner There’s Jane, who bought May’s ginger beer float, but wasn’t the victim There’s Stevenson, the manufacturer of the ginger beer, but at this point didn’t have any direct or indirect contract with May and Jane [READ MORE: Is a verbal promise legally binding in Malaysia?] With seemingly no cause of action, all hope seemed lost. That was until May sought out Walter Leechman (not to be confused with Walter White), a lawyer who worked on a case earlier that was factually similar to what May went through. That case involved a dead mouse found in a bottle of ginger beer. We can’t decide which is worse; a rotting snail or a dead rodent. Nevertheless, Walter sent out a writ (it’s like an “Imma sue you” letter) on May’s behalf against Stevenson. May’s counsel argued that since Stevenson made their ginger beer bottles opaque, and the consumers can’t see the inside of them before consuming it, Stevenson should be liable for any damage caused. Your friendly neighbourhood High Court Judge The case eventually went all the way to the highest court in the land, the House of Lords, three years after May met Mr. Snail. It was a lengthy battle and in the end, Lord Atkin, widely regarded as one of the greatest judges of the 20th century, found the case in favour of May and gave the leading judgment: ""The rule that you are to love your neighbour becomes in law 'You must not injure your neighbour'; and the lawyer's question: 'Who is my neighbour?' receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."" The TL;DR is: a person should take reasonable care that their actions or omissions don’t hurt other people, as far as it can be foreseen. An example of this would be if you’re a chef, and you don’t wash your hands before/while you’re cooking, it would be logical to assume that customers can get explosive diarrhea due to the lack of hygiene. The principle from this judgment later came to be known as the “Neighbour Principle”. Lord Atkin based his judgment on the Christian principle of “loving thy neighbour” and the parable of the Good Samaritan. The Good Samaritan is a story of a Samaritan helping a Jew who was injured despite the two groups of people hating each other back then. The phrase “good samaritan” used nowadays came from that parable, and applies to anyone who’s done something that’s really nice. Stevenson died less than a year after the House of Lords’ decision, and his estate settled May Donoghue’s claim for the sum of £200. Back to the Snail… and the soft drinks you buy today A lot of UK laws make their way into the Malaysian lawbooks, and the Neighbour Principle is one of them… albeit indirectly. Yep, the tort of negligence is a thing in Malaysia, which you can read more about here: [READ MORE: What can you do if you bought spoilt or contaminated food?] The next time you guys chug a carton of milk or buy a box of chocolates, you can rest assured that even if something bad happens – like the appearance of slugs in juice, which occasionally happens both locally and internationally – you always have some form of legal protection. And all thanks to a snail and a Leechman."
"Some Malaysian tuition centres are actually illegal! But how do you tell? What kind of school did you go to? Was it a Sekolah Kebangsaan (national school), or did you go to an international school? Maybe you were homeschooled, or even privately tutored. Whether you hate or love your schooling years, the last thing on your mind is whether or not your school or teacher had a proper license. You need a license to run a business, a license to run a gun shop, and yes, even a license to teach. Lately, it might become a concern for both students and their parents because some private learning centres in Malaysia operate without any license. The Ministry of Education has stated that they will not endorse certificates from unlicensed centres - a requirement by the Foreign Affairs Ministry for students who wish to further their studies overseas. But what kind of license do these learning centres need to get, and how do you tell if they are properly licensed? Schools and learning centres must be licensed under the Education Act Under Section 79 of the Education Act 1996, all educational institutions need to be registered with the Registrar General (of the Ministry of Education). Under Section 2, an “educational institution” means: “a school or any other place where, in the carrying on of the work of an organization or institution, persons are habitually taught, whether in one or more classes, and includes a kindergarten and a distance education centre” Yes, this includes the national schools that the Ministry sets up as well, but excludes places dedicated to the teaching of any religion. Educational institutions will need to obtain a certificate of registration under Section 82, which must be put on display and be clearly visible on the education premises. You can see an example of such a certificate below. We actually managed to find a Powerpoint detailing all the legal requirements to open an international school by the way. If you’re interested, you can find it here for your general knowledge. The Registrar General will consider the following criteria under Section 84 before granting a license to educational institutions: The premises must meet the prescribed standards of health and safety The institution must not be used “for a purpose detrimental to the interests of Malaysia, the public or the pupils” The name of the institution is not improper or undesirable The area where the institution wants to open has too many schools and/or centres already The registration contained a false or misleading fact The person applying for the license fails or refuses to comply with set conditions The person appointed to be the chairman of the board of governors or head teacher is not suitable for the position But it’s not just the institution itself that needs a license, even the employees need to be registered as well! So if the educational institution is not properly licensed… Even the teachers and support staff can get in trouble One of the least fun things in the world: getting into trouble for something that’s not your fault. Anyone who acting as a governor or employee of an educational institution needs to be registered with the Ministry of Education as well. This is required by Section 88 of the Education Act. While the school operators can get into trouble for not having the proper registrations, lying to the authorities, or refusing to cooperate with them, Section 132 also provides that even the employees can get into trouble for not being registered with the Ministry of Education, or for working at an illegal educational institution. All the above offences carry a potential penalty of up to RM30,000, and/or up to 2 years of prison. So the staff of private learning centres may want to double check both the legal status of the place the work at, and their own registration as an employee. Some learning centres are licensed, but wrongly There are 18 types of educational institutions recognized in the Education Act, which include tuition centres, language centres, and international schools. The Ministry has said that for institutions that want to run an international curriculum like the IGCSE, they need to register as an international school. There are a lot of licensed private learning centres, but they might also hold the wrong type for their kind of operations because “private learning centre” is not one of the recognized categories... “There are some cases where these centres have a tuition centre licence but operate like a school. We are looking seriously at their existence and the issues involving these centres as it is against the provision of compulsory education set out in the Education Act.” - The Ministry of Education as quoted by The Star Parents may need to make sure their children aren’t attending an illegal school Primary schooling is compulsory by law in Section 29A(2), stating that all Malaysian children who have reached at least 6 years of age on 1st January must start attending primary school, and complete it. There are actually consequences for parents if they don’t send their children for primary school (though if you’re sending your 12+ year old child to an illegal centre by mistake, you’re in the clear!):- Education Act 1996 - Section 29A(4) “A parent who contravenes subsection (2) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding six months or to both.” For parents who have special needs children or wish to send their children for alternative schooling, an application can be made to the Ministry of Education to exempt them from having to attend a primary school [Section 29A(3)]. Homeschooling in particular is a common and legal alternative, but parents may still have to obtain approval from the Ministry While it’s a good thing for parents to have schooling options to suit their child, the rise of dodgy learning centres may make it necessary to check that the centres are legit, otherwise their certificate might not be recognized later on. It’s not to say that private learning centres are out there to cheat you or anything, in fact some learning centres are not very pleased about their non-educator competitors prioritizing profits over proper education. These centres have welcomed the Ministry of Education to start regulating the industry and set up a new license category for them."
"Apa yang boleh kamu buat jika kamu tak mampu mengupah peguam? The original version of this article was written in English, click here to read it. Pernah tak anda dalam situasi di mana anda nak saman si polan ni sebab dia mengingkari kontrak antara korang TAPI korang takde duit nak upah seorang peguam? Ataupun anda baru je beli sebuah TV plasma yang berharga beribu ringgit dari sebuah kedai, tapi bila dihantar ke rumah, TV tersebut ada kerosakan & kedai tersebut enggan bayar ganti rugi? Ataupun, bayangkan jika anda ditahan oleh polis sebagai seorang suspek dan anda mahu menggunakan hak anda mendapatkan khidmat seorang peguam tapi anda rasa anda tak mampu. Kalau anda pernah berada dalam situasi seperti di atas ataupun apa apa situasi yang memaksa anda mengambil khidmat seorang peguam tapi tak mampu, jangan goyang. Ni ada berita baik untuk anda. Malaysia mempunyai tiga jenis badan bantuan undang-undang untuk dipilih! Tapi sebelum tu, anda perlu tahu yang bantuan dari badan undang-undang mempunyai 2 jenis, iaitu: Nasihat Undang-Undang – PERCUMA daripada ketiga-tiga jenis bantuan guaman dan merangkumi kesemua sudut undang-undang Perwakilan Undang-Undang – Hanya disediakan untuk sebahagian undang-undang dan DISUBSIDI Kedua-dua jenis bantuan undang-undang ini ditawarkan oleh ketiga-tiga jenis badan bantuan guaman di Malaysia Badan bantuan guaman pertama adalah Jabatan Bantuan Guaman yang ditaja oleh kerajaan dan mengendalikan sesetengah jenis kes sivil dan jenayah. Badan bantuan guaman kedua adalah Majlis Peguam dan mereka mempunyai pejabat di setiap negeri di Malaysia. Badan Peguam adalah ditaja secara persendirian oleh ahli perbadanan tersebut sendiri(peguam) dan menawarkan khidmat bantuan guaman untuk kes-kes melibatkan keluarga, pekerjaan & juga kes jenayah Badan guaman yang ketiga adalah khas untuk kes-kes jenayah sahaja. Badan guaman ini dikenali sebagai Yayasan Bantuan Guaman Kebangsaan. Ianya telah beroperasi sejak 2012 untuk memenuhi permintaan yang tidak disediakan oleh Jabatan Bantuan Guaman & Badan Peguam Sebagai nota ringkas, kes sivil adalah apabila anda menyaman seseorang untuk perkara seperti pelanggaran kontrak, hak penjagaan kanak-kanak & sebagainya. Sebaliknya, untuk kes-kes jenayah, apabila anda didakwa melakukan jenayah dan ia merupakan tindakan yang diambil oleh kerajaan terhadap anda. Perlu diingatkan bahawa bantuan guaman adalah berbeza daripada khidmat pro bono. Bantuan guaman ditawarkan melalui 3 badan guaman yang dinyatakan di atas oleh peguam panel mereka manakala tugas pro bono adalah tugas yang diambil oleh peguam individu dengan perbelanjaan mereka sendiri. Sebagai ringkasan, bantuan guaman adalah institusi(lebih kurang la) & pro bono adalah melalui individu. Sekarang anda dah tau kan yang terdapat 3 jenis bantuan perkhidmatan guaman, meh sini kita bincang tentang perkara-perkara yang lebih penting seperti bagaimana anda nak penuhi syarat untuk itu dan apa yang anda boleh buat. Kita akan membincangkan isu-isu ini di bawah tajuk yang berasingan untuk setiap pusat bantuan guaman. TETAPI, ada satu perkara yang sangat penting yang anda akan perasan sepanjang artikel ini dan ianya adalah.. Anda perlu lulus dua peringkat ujian jika anda mahukan bantuan guaman! Ketiga-tiga badan bantuan guaman ini akan menguji anda melalui ujian kemampuan (“means test”). Ujian kemampuan ni apa? Bagus soalan tu. Ujian kemampuan ni adalah penting untuk mengenal pasti samada taraf kewangan anda layak untuk mendapatkan bantuan undang-undang atau tidak. Jabatan Bantuan Guaman memberi peluang kepada anda untuk mengambil ujian dalam talian dulu untuk ketahui taraf kewangan anda layak atau tak untuk mendapatkan bantuan guaman. TETAPI, jangan le kecewa kalau anda tak memenuhi syarat melalui ujian dalam talian tu sebab keputusan melalui dalam talian tu bukanlah muktamad. Bagi Majlis Peguam & YBGK, anda perlu mengisi borang di pejabat mereka sendiri untuk mengetahui taraf kewangan anda. Ujian kedua ini pula HANYA dijalankan oleh Jabatan Bantuan Guaman & Badan Peguam & ianya dikenali sebagai ujian merit. Secara asas, ujian merit ini adalah satu ujian dimana badan-badan bantuan guaman mempertimbangkan merit daripada kes anda sama ada terdapat sebab munasabah untuk memberi anda bantuan undang-undang. Maksudnya, jika anda ke badan bantuan guaman untuk bantuan dalam tuntutan yang remeh, permohonan anda tidak akan dilayan(sedih). Tetapi, YBGK tidak mempunyai ujian merit ini kerana ianya adalah hak anda untuk diwakili oleh peguam dalam kes jenayah jika anda memilih untuk diwakili oleh peguam Jabatan Bantuan Guaman Bantuan Guaman ini berasal daripada Akta Bantuan Guaman 1971 (“LAA 1971”) & menyediakan perkhidmatan undang-undang untuk rakyat Malaysia pada kadar yang disubsidi. Ini bermakna anda masih perlu membayar jumlah tertentu tetapi ia akan jauh lebih murah daripada mengupah peguam anda sendiri. Jenis kes yang dikendalikan oleh Jabatan Bantuan Guaman (""JBG"") boleh didapati dalam Jadual Kedua dan Ketiga LAA 1971. Jadual Kedua pula menangani kes jenayah manakala Jadual Ketiga menyenaraikan semua kes sivil yang dikendalikan oleh jabatan. Sebagai peraturan am (“general rule”), JBG hanya mengendalikan kes-kes jenayah selepas orang itu mengaku salah dan hanya membantu orang itu untuk mengurangkan hukuman (“mitigation”) yang mereka bakal terima. Terdapat dua pengecualian kepada peraturan am ini Jika kesalahan telah dilakukan di bawah Akta Kanak-Kanak 2001 Jika kesalahan itu merupakan kesalahan kecil di bawah Akta Kesalahan Minor 1995 Contoh bagaimana peraturan am ini digunakan: Ali telah didakwa atas kesalahan mencuri & dia mengaku melakukan jenayah itu Hakim telah menjatuhkan hukuman penjara 7 tahun terhadap Ali tetapi Ali adalah pencari nafkah tunggal untuk keluarganya Oleh itu, Ali boleh mendapatkan bantuan guaman untuk mengurangkan hukumannya kepada yang lebih ringan Contoh pengecualian kepada peraturan am ini: Ali didakwa melakukan kesalahan di bawah Akta KanakKanak/Kesalahan Kecil Ali mengaku tidak bersalah atas kesalahan itu. Ali akan mendapat bantuan guaman walaupun mengaku tidak bersalah & akan dibicarakan Ini adalah senarai kes sivil yang lain: Kes-kes keluarga Penyewaan padi(kami dah Google, & ianya jatuh di bawah Akta Padi Kultivator(Kawalan Sewa & Keselamatan Tempoh ) 1967 & adalah mengenai menyewa lading padi) Hartanah (pengedaran) Kemalangan jalan raya Kes pinjaman duit Sewa beli sesuatu perkara Probet & surat pentadbiran Pengambilan anak angkat Tuntutan pengguna Selain meliputi kes sivil dan jenayah, LAD juga menyediakan bantuan untuk kes Syariah (sivil sahaja) & menyediakan perkhidmatan pengantaraan (“mediation”)bagi kedua-dua isu sivil & Syariah. Satu perkara penting yang perlu diambil kira ialah walaupun kes anda diluar bidang kuasa JBG, LAA 1971 membolehkan anda membuat rayuan kepada Ketua Pengarah untuk meminta pengecualian Baru-baru ini pada tahun 2017, kerajaan telah membuat pindaan kepada LAA 1971 yang memperkenalkan perkhidmatan sahabat sah. Perkhidmatan sah sahabat ini bertujuan untuk memberikan bantuan dan keselesaan kepada penjaga seorang anak yang telah menjadi mangsa jenayah. Sahabat sah ini akan menasihati penjaga kanak-kanak, menemani mereka semasa prosiding mahkamah, dan kadang-kadang, bercakap bagi pihak mereka. Anda boleh membaca mengenai pindaan di sini. Bagaimana nak mendaftar untuk bantuan guaman? Anda anda perlu pergi ke mana-mana cawangan mereka (anda boleh mendapatkan senarai penuh di sini ) & mendaftar dengan mengisi borang dan membayar yuran pendaftaran sebanyak RM10. Perkara lain yang perlu diambil kira ialah walaupun ini adalah perkhidmatan bersubsidi, anda mungkin perlu membayar jumlah tertentu kepada JBG. Kebiasaanya, ianya adalah lebih daripada RM10 yang anda perlu bayar untuk pendaftaran dan amaun yang perlu dibayar bergantung kepada gaji tahunan anda serta kes individu anda. Seperti yang anda dapat lihat dari imej di bawah, jika anda memperoleh pendapatan kurang daripada RM30,000 setahun, bantuan guaman anda adalah percuma. Bantuan undang-undang seterusnya, Majlis Peguam Malaysia beroperasi sedikit berbeza ... haaa cuba tengok bawah.. Majlis Peguam Malaysia (LAC) Bantuan guaman Majlis Peguam (""LAC"") hanya meliputi kes-kes yang berkaitan dengan undang-undang keluarga, undang-undang pekerjaan, kes-kes syariah, dan kes jenayah. Perbezaan utama yang pertama ialah tidak seperti JBG, LAC juga meliputi kes jenayah apabila tertuduh mengaku tidak bersalah (kes dia akan dibicarakan (“claims trial”)). Mari kita tukar sikit contoh “Ali” kami yang diberikan di atas: Ali telah didakwa mencuri & dia mendakwa bahawa dia tidak melakukan jenayah itu. Ali dikatakan telah menuntut perbicaraan dengan memohon tidak bersalah. Ali boleh mendapatkan bantuan undangundang untuk membuktikan bahawa dia tidak bersalah. Perkara yang perlu anda tahu ialah anda tidak perlu membayar yuran guaman di bawah LAC. Ia sememangnya percuma dan juga meliputi orang asing yang didokumenkan ataupun tidak. (Bukan seperti LAD yang hanya untuk rakyat Malaysia). Anda boleh membaca lebih lanjut mengenai perbezaan antara JBG dan LAC di sini Walau bagaimanapun, walaupun LAC tidak mengenakan satu sen untuk yuran guaman anda, anda perlu membayar yuran pemfailan mahkamah. Yuran pemfailan bukan sebahagian daripada yuran guaman yang biasanya dikutip peguam tetapi mereka adalah sebahagian dari yuran mahkamah yang anda perlu bayar. Bayaran pemfailan boleh diketepikan jika anda mendapatkan bantuan guaman melalui JBG tetapi tidak jika anda mendapatkan bantuan guaman melalui Bar. Kalau anda memenangi kes itu, mahkamah mungkin membenarkan anda menuntut yuran pemfailan yang telah anda bayar kerana itu adalah penting untuk menyimpan rekod yang sepatutnya. Aduh! Keliru la dengan benda ni. Apa yang nak kena bayar & apa yang tak payah? Haa kami pecahkan untuk korang: Yuran guaman (kepada peguam) JBG – YA LAC – TIDAK Yuran pemfailan (kepada mahkamah) JBG – TIDAK LAC – YA Untuk pengetahuan anda, bantuan undang-undang yang disediakan oleh Majlis Peguam dibiayai sepenuhnya oleh peguam dan anda boleh mencari senarai pejabat mereka di sini. Anda juga boleh membaca lebih lanjut mengenai program yang mereka tawarkan di sini Haa! Bantuan undang-undang yang ketiga pulak adalah: Yayasan Bantuan Guaman Kebangsaan(YBGK) YBGK hanya meliputi kes jenayah sahaja (termasuk kes jenayah Syariah) untuk semua rakyat Malaysia dan dibiayai oleh kerajaan tetapi diuruskan oleh Majlis Peguam. Ini bermaksud di Semenanjung Malaysia, YBGK beroperasi menerusi LAC & di Sabah & Sarawak, mereka bekerja melalui JBG dan Persatuan Undang-Undang / Persatuan Undang-Undang Sabah. Anda boleh mendapatkan senarai penuh pusat mereka di sini Bagi pembayaran, jika pendapatan anda kurang daripada RM25,000 setahun, bantuan guaman akan disediakan secara percuma! Walau bagaimanapun, jika anda memperoleh antara RM25,000 hingga RM36,000, anda akan dikenakan kadar yang ditentukan oleh Lembaga Pengarah YBGK. Bantuan undang-undang yang disediakan oleh YBGK akan meliputi semua peringkat kes-kes jenayah seperti penahanan, reman, permohonan jaminan, pengurangan. Mana-mana jenis kes jenayah akan diberi perwakilan undang-undang (jika anda melepasi ujian sarana) kecuali jenayah yang membawa hukuman mati (seperti pembunuhan). Jangan takut untuk meminta pertolongan! Macam yang kami dah bagitau, ketiga-tiga jenis bantuan guaman memberi perkhidmatan nasihat undang-undang! Jikalau anda tersepit dalam masalah ni, jangn segan segan untuk hubungi mereka di nombor di bawah: Jabatan Bantuan Guaman - 03 8885 1000 Majlis Peguam - 03 2072 2051 YBGK - 1-800-88-9245 Kalau nak lagi bagus, hubungi mereka dahulu sebelum anda ke sana supaya anda boleh bertanya kepada mereka apa jenis dokumen yang anda perlu bawa. Takdelah nanti nak kena patah balik ke rumah sediakan dokumen lepas tu ke sana balik."
"If you get injured AFTER agreeing to terms and conditions in Malaysia, can you sue? Being Malaysians, especially those who live in cities, our attractions usually revolve around hanging out at a local mall with family and friends. However, some of us might venture out into the more...adventurous side of Malaysia such as heading off to theme parks or joining extreme sports in any of our lush jungles. If you have spent time in a theme park or taken part in scuba diving, for example, you would have been asked to sign one lil form. This form will usually come explained with this phrase, “This is a standard form for you to sign, it’s just to waive us of our responsibilities if you get injured but don’t worry, it won’t happen”. You would probably just shrug and sign it because you figured that it’s just standard and you really really reallyyyyy want to get on that roller coaster. [READ MORE: Malaysian adventure parks must keep you safe by law] Other than that, you might have seen signs like that while driving into car parks or entering a public toilet. The question is...is that form/sign really binding? [READ MORE: Who pays if my car is stolen or damaged when I use valet parking?] Before we tell you the answer, let’s look at what the law classifies that form/sign as. Waiver forms/signs = exclusion clauses We commonly refer to such forms/signs as waiver forms/waiver notices but these terms are merely containers for the more legally important bits known as exclusion clauses or limitation clauses. There is a difference between these two clauses and what they do. In a nutshell, exclusion clauses completely exclude the other party’s liability while limitation clauses limits it. Let’s take a look at an example of each clause to help you guys understand it better. Exclusion clause ”All vehicles are parked at the owner’s risk. The management accepts no responsibility for any loss or injuries that occurs on the premises.” Ali parks his car in AB’s car park and a piece of ceiling falls on his car and damages it. Ali tries to claim the repair cost of RM1,000 from AB. AB tells Ali that he is unable to claim his repair costs from them because of their sign. Limitation clause ”All vehicles are parked at the owner’s risk. The management limits its liability to RM50.00 for any loss or injuries that happen due to the fault/negligence of the management.” Ali parks his car in AB’s car park and a piece of ceiling falls on his car and damages it. Ali tries to claim the repair cost of RM1,000 from AB. AB tells Ali that he is is only able to claim a maximum of RM50 because of his sign. Now that you know how these clauses look like, the question of the hour is how are they incorporated into your contracts? This is where the rule of incorporation comes in. If it’s not incorporated, it’s not for you In a nutshell, the rule of incorporation basically states that for the exclusion clause to be effective, it must be incorporated into your contract. Incorporation can happen in one of three ways: Through signatures Through notice Through previous course of dealing Signature Do you remember that cardinal rule of never signing something before reading it? Well, this was established in the old English case of L’estrange v Graucob. The lady in L’estrange bought a cigarette vending machine and signed an order form with an exclusion clause in it. The courts held that the clause can be enforced against her. Basically this case tells us that it doesn’t matter if you fail to read the contract, the terms can be enforced against you the moment you sign it. Incorporation through signature is pretty straightforward because it is something we are all familiar with but the iffy part is where the exclusion clauses are not found in a contract or not found in something you would generally perceive to be containing terms of a contract. This is where the next form of incorporation happens. Notice The first case of Parker v South Eastern Railway tells us that the exclusion clause will only be incorporated if the person relying on it (the company usually) took reasonable steps to bring it to your attention (notifying you). In Parker, the guy took a package to the train station and left it in their care. In return, he was given a ticket which unknown to him, had an exclusion clause printed on its back. The package then went missing and Parker tried to claim for damages from the train station. The station tried to rely on their exclusion clause. The courts came to the decision that the clause will only take effect if: The person knew of the existence of the clause If the company relying on the clause, took reasonable steps to bring it to the person’s attention (reasonable notice) The court when on to say that reasonable notice usually happens when the terms are contained in a document that people would expect to list down the company’s terms. This means that if the terms are written on a torn piece of paper and randomly shoved at you, you might not be deemed to have reasonable notice. Aside from being contained in a document that you are likely to think has terms, notice has a second limb to it – the term has to be introduced before the contract is concluded (whether by signing a document or otherwise). The trifecta cases of Olley v Marlborough Court, Chapelton v Barry UDC, and Thornton v Shoe Lane Parking all tell us the same thing (more of less) but to give you guys some context, we will briefly go over the facts of each case. Olley v Marlborough Court In Olley, the lady was a long-term resident at a hotel and completed her contract with the hotel at the reception area. She then proceeded to enjoy her room. One day, she left the hotel and as usual, she left her key at the reception area (this was way back when it was normal to do this) and when she came back, she realised that her fur coat had been stolen from her room. When she tried to claim the cost of the fur coat from the hotel, the hotel tried to rely on their exclusion clause which was found at the back of her room door. The court concluded that as the term was only brought to her attention after she concluded the contract at the reception, the hotel was not allowed to rely on that clause to exclude their liability. Chapelton v Barry UDC In Chapelton, the guy involved rented a deck chair to chill out on the beach. There was a notice next to the deck chairs asking for customers to obtain tickets from the chair attendants. Chapelton then paid and obtained his ticket, which he pocketed without reading. The chair later split, injuring Chapelton in the process. It turns out that there was actually an exclusion clause written on the back of the ticket. The court ruled that since the clause came after the conclusion of the contract, the company couldn’t rely on it. Aside from that, they also said that there was no reasonable notice because a reasonable person wouldn’t expect the ticket to contain terms but treat it as a mere receipt (same like the above case of Parker). Thornton v Shoe Lane Parking Thornton’s case would be a situation we would all be familiar with. Mr. Thornton drove into a carpark and was given a ticket after he inserted money into the ticketing machine. The ticket stated that it was issued subject to the terms that were found around the premises. On the car park pillars, there was an exclusion clause. Later on while collecting his car, Thornton got injured and the management tried to rely on that clause. Same as all the above cases, the judge ruled against the management because the clause came after the contract had been concluded and it was not incorporated into the contract. This is why you would always see a giant signboard listing all the terms of using a car park at the ticketing barrier instead of after it. It is to ensure that the terms are incorporated into the contract. The third form of incorporation is a finicky one. Previous course of dealing In incorporation through previous course of dealing, the courts look at whether you were a regular and consistent customer that would be aware of the shop’s exclusion clause. Let’s illustrate it for you guys through this example: Ali usually parks at ABC Parking. He always signs an invoice with the term that says, “ABC Parking is not responsible for damage caused by fire to the customers’ cars”. Last Thursday, Ali parks his car as usual but he didn’t sign the invoice. A fire broke out and burnt down the parking garage with Ali’s car in it. Ali sues for the damages for his car. ABC Parking tries to rely on the exclusion clause but Ali argues that it was not given to him. ABC Parking is allowed to rely on the clause despite that because Ali has been a loyal customer who knows of the existence of the clause through his previous course of dealing. The scenario above mirrors the case of Hollier v Rambler Motors except in Hollier, the man was only a customer 3 or 4 times over 5 years and the court held that the clause couldn’t be incorporated because there was no regularity of transactions. This means that for the clause to be incorporated through previous course of dealing, it must be regular and consistent dealings. For example, once a week (regular) versus once every 2 years (irregular). So assuming that the exclusion clause is incorporated, does this mean that you lose out? Well, not necessarily… Contra proferentem is not the name of a Harry Potter spell but… It may not be the name of a spell but it is definitely useful. Even if the exclusion clause has been successfully incorporated into your contract, the courts will be very strict in interpreting it. The clause must clearly state what breach and liability it will cover. Basically, the clause must be clearly drafted and must not have any ambiguities. This point was driven home in the Malaysian case of CIMB Bank Berhad v Maybank Trustees Bhd & Other Appeals where the judge stated that: “...to what extent, an exclusion clause is to be applied to...any breach of contract, is a matter of construction of the contract...But this does not entitle the court to reject the exclusion clause, however unreasonable the court itself may think it is, if the words are clear and fairly susceptible of one meaning only...” The quote above means that whether or not an exclusion clause can be applied depends on how the contract was made and if the term is clearly worded, the judge cannot reject it even though it may seem unreasonable (this is born out of the idea of freedom of contract). However, don’t fret because the courts will first try to interpret the clause with the normal meaning of the word and if there are still ambiguities present, they will turn to the contra proferentem rule. The contra proferentem rule basically tells us that if there are any ambiguities in the clause, the court will interpret it in a manner that is less favourable to the party relying on it. How this works is like this – in our ABC Parking example above, if the exclusion clause had ambiguities on it (ABC Parking could either rely on it or not), the court will interpret it in a way that does not allow ABC Parking to rely on it. In the simplest form, the court will interpret the clause in a manner that is most favourable to you when there are ambiguities. When it comes to exclusion clauses, the courts basically have a two-stage test to see if it can be enforced against you: Has it been incorporated (though signature, notice, or previous dealings)? Are there any ambiguities in the clause? Here’s the thing, after all these layers of protection, Malaysia has another added protection for consumers like you and I. Statutes save the day! This is where section 24D(1) of the Consumer Protection Act 1999 and it reads: “A contract or a term of a contract is substantively unfair if the contract or the term of the contract— (a) is in itself harsh; (b) is oppressive; (c) is unconscionable; (d) excludes or restricts liability for negligence; or (e) excludes or restricts liability for breach of express or implied terms of the contract without adequate justification.” Section 24D defines what contractual term can be considered unfair and section 24D(2) also lays out a long list of consideration that the court will take into account when considering whether or not the term really is unfair. If the court decides that that term/clause in your contract is unfair, then section 24G allows them to consider that the term is void (meaning it cannot be enforced against you). As a point of interest, section 24D doesn’t only apply to exclusion clauses but any clause that could potentially be unfair. If you think that a clause in your contract is unfair, you can report it to the Ministry of Domestic Trade, Co-operatives, and Consumerism (commonly known as KPDNKK). You can contact them via this number 1800 – 886 – 800 or file an online complaint here. Even though the law protects you through multiple ways, it is still wise for you to practice caution while signing any contracts and always read them. [READ MORE: How to not fall off your chair when given a 50 page contract in Malaysia]"
"If tenants don't pay rent, what can Malaysian landlords do? Article is originally written in January 2018. Over the past few years, the Malaysia property market has gone from hot to lukewarm and, due to economic uncertainties, the property market is expected to stay flat for the next half of the year. This presents a multitude of problems for landlords, but since we aren’t a property site like Propsocial, we’ll just be focusing on one problem in particular – Rent. Perhaps your tenant lost their job and they don’t have the money to pay you rental. Perhaps they’ve come up with other excuses to postpone payment month-after-month. Either way, you don’t get paid and these are the times when landlord-tenant relationships turn sour. Landlords can exercise a few options to recover their rent. Some may fantasize about taking extra-judicial (not legally authorized) means like sending a bullet to the tenants or splashing red paint on the tenants’ car. Of course, these extra-judicial methods are all illegal, so we strongly advise you against taking any of these steps! There’s also another scenario where tenants run off and cannot be located; making all these extra-judicial methods useless. Instead, we suggest you seek proper legal remedies. The law does help landlords in the event a tenant defaults on you, but don’t go searching for a lawyer just yet! There is one important point you must first know: Your contract is VERY important! Firstly, the landlord-tenant relationship is a contractual one. Therefore, by and large the contractual relationship – such as the rent, the duration, the limitations and remedies – can be found under the tenancy or lease agreement signed by both parties. You may also want to check with your agent on the specific terms of the agreement and the steps that you can take. But wait, what’s the difference between a “tenancy” and a “lease”? Under Malaysian law, tenancy and lease are more or less the same; just that “tenancy” means renting out your property for less than 3 years and “lease” would be more than 3 years. Typically, leases are more common for commercial business rentals than residential ones. Secondly, before you pursue any legal action, you must FIRST make a formal demand in writing for the arrears (overdue) of rent. So instead of sending a bullet, you should send a letter, email or even a Whatsapp message. It’s also advisable to take screenshots or a photo (if you’re sending a letter) as proof to negate any claims from the tenant saying that they didn’t receive it. You may also want to request that the tenant acknowledges that he or she received the letter, which can be done by signing and dating the document. The letter should clearly state all your demands. Include all details as specific and as clearly as possible, such as demanding the tenant pay a certain amount of rent within a reasonable period of time, or the tenant must vacate the premises. Only after you have made your demand clear, then only can you proceed to look into remedies. So let’s say you’ve already sent the demand and the tenant still doesn’t pay. One very common objective to pursue legal action is to evict the tenants so you can rent the property to someone else. The question is, how can you legally and properly evict the tenant? Landlords cannot evict tenants by force So let’s say the demand has been sent and the tenant isn’t moving out and is still not paying. It may sound perfectly justifiable to enter your property, throw out their belongings, and change the locks – after all, they are not paying the rent as agreed and it’s YOUR property, right? Wellllll… not so. In fact, you may actually get into legal hot soup for doing this, as we can see from Section 7(2) of the Specific Relief Act 1950: “Where a specific immovable property has been let under a tenancy, and that tenancy is determined or has come to an end, but the occupier continues to remain in occupation of the property or part thereof, the person entitled to the possession of the property shall not enforce his right to recover it against the occupier otherwise than by proceedings in the court.” This section simply means that you cannot recover possession of your property without a proper court order. Getting a proper order means you have to first terminate the tenancy agreement and engage a lawyer. Your lawyer will help you sue the tenant for arrear rent and ask for a vacant possession order. Only when the court grants the order can you start regaining possession of the property. If you forcefully enter the premises, you risk yourself being sued by the tenant for trespass! Even if you argue that the property is yours and the tenant does not pay rent, this argument is futile. In the case of Abdul Muthalib Hassan v. Maimoon Hj. Abd. Wahid [1992] 1 CLJ 88, the court ruled that the landlord locking up the premises because the tenant didn’t pay rent is not a justification for trespass. Unfortunately, getting a court order could be a long and costly procedure... the case may drag for months before you get the possession order; assuming the tenant does not contest the matter in court, or you might be reluctant to engage a lawyer (and pay expensive legal fees!). A way around this is to suspend the water supply. You can do that if – and only if – it’s stipulated in the tenancy agreement. If the contract says the landlord can cut off water supply if the tenant arrears in rent, then you’re allowed to do so; with the best part being that you do not have to get permission from the court (no need to pay lawyers mahal-mahal!). This is supported by the case of Premier Model (M) v. Philepromenade Sdn Bhd [2001] 1 LNS 173. While we now know that there are several ways to get the non-paying tenant out of your property, is there a way for you to get back some of the money owed to you? You can go for a distress action! A “distress action” is another legal remedy available for landlord under the Distress Act 1951. This right allows landlords to distrain for unpaid rent. Essentially, the landlord can seize the tenant’s goods and sell them for the purpose of recovering arrears (money that is owed). Again, that does NOT mean you can just go into the tenant’s room and seize his iPhone X or Macbook Air! Section 5(1) of the Distress Act 1951 says that you have to apply to a judge for the issuance of a warrant for distress for recovery of rent. This distress action is special in the sense that it can be carried out by the landlord against the tenant without terminating the tenancy agreement. Meaning to say, you do not have to terminate the tenancy before commencing this distress action. In addition, Section 28(4) of the Civil Law Act 1956 says the landlord can claim double rent from the tenant from the expiry of the notice of eviction until the possession is given to the landlord. It is stated: “(a) Every tenant holding over after the determination of his tenancy shall be chargeable, at the option of his landlord, with double the amount of his rent until possession is given up by him or with double the value during the period of detention of the land or premises so detained, whether notice to that effect has been given or not.” Of course, if the tenant isn’t paying you to begin with, enforcing this may be a moot point. Lastly, if the amount of rent owed is less than RM5,000, you can also look into a small claims procedure. It’s a little more DIY because you won’t need to hire a lawyer, but that also means it’s a lot more affordable. You can read more about this in the link below: [READ MORE: What’s a small claims procedure?] Moral of the story – Read your tenancy agreement As can be seen, there aren’t many laws that govern the landlord-tenant relationship, with the Distress Act 1951 being the only legislation specifically addressing the issue. But in most real-world cases, it’s the exception rather than the norm for these cases to go to court due to the cost and time involved. It can be said that the more standard practice would be for the landlord to lodge a police report. Then, police officers may escort you in regaining the possession of property. It’s also advisable to take photos or recordings to safeguard yourself against any claims of theft or abuse of the tenant’s belongings. If you’ve appointed an agent, the very first option is to seek assistance from your agent in resolving any tenancy disputes. At the end of the day, the first line of defense against potential headaches is to draw up a good tenancy agreement before renting the property out. Make sure the agreement secures your rights as landlords, and provides the necessary safeguard in the event of non-payment of rent."
"Malaysians can now hire maids ONLINE. Here's how.  From the late 90s until the recent past, most people, whether private employers or homeowners, have always needed to hire foreign maids to work for them through foreign maid agencies. These agencies charged varying amounts; RM 14,000 in some cases, while the official rate set by the Malaysian government was only RM 7,800. People paid anyways because the agencies handled everything for them, and it’s less of a headache that way. Despite paying agencies that much, there are still problems that can crop up. Some agencies don’t work in a timely manner, which means you’ll have to constantly micromanage them, and that’s a waste of money and time. Other agencies might not respond to you as promptly, or at all, after you’ve hired a maid through them and you have problems with the maid. Since the 1st of January this year (2018, just in case anyone waking up from a coma from before 2017 is reading this), our government, specifically, the Immigration Department, introduced the Sistem Maid Online website so that people here can hire foreign domestic workers without going through an agent at a much, much lower cost. The whole process can be completed in as little as 8 days, and costs between RM 1,600 and RM 2,500, which includes levy (a fee), deposit and processing fee, among others. Comparing that to this agency, it is stated in the FAQ that it can take 2 to 3 months for the process to be completed. At the time of writing, Sistem Maid Online is only available in Peninsula Malaysia so readers from Sabah and Sarawak will have to wait for further updates. You can click this link for the Sistem Maid Online website, but you might wanna read the rest of this article first. Requirements For the Foreign Maids Must be female, between the ages of 21 to 45 at the time of application The maid must be only from these 9 allowed countries: Indonesia Philippines Sri Lanka Thailand India Laos Nepal Vietnam Cambodia The maid must not be blacklisted by the Immigration Department The maid must not have a temporary working visa that is active with another employer For Employers Employers must be Malaysian or permanent residents of Malaysia Employers must be married, and must have either: Child or children under the age of 15 Child or children that are disabled or differently abled Parent(s) who are of advanced age Employers with husband or wife who needs care A family member who needs care (limited to siblings and grandparents) Proof must be shown if there are family members that need to be taken care of (medical reports and proof of relationship) Employment of a maid to take care of a family member is only allowed if said family member does not have stable income The minimum income of the family of employer has to be between RM 3000 to RM 5000, depending on the country of origin of the maid A couple (husband and wife) may only have 1 maid employed at any time The husband’s name is suggested to be the registered employer’s name Single parents may employ a maid subject to minimum income levels. Single individuals are allowed to employ maids to take care of their parent(s) These people are NOT ALLOWED to hire maids: declared bankrupt on the Department of Labour’s blacklist has issues pending with the Immigration Department Muslim employers can only hire Muslim maids The resulting employment contract between the employer and the maid must be fulfilled Flowchart of application The government’s made it a lot easier to apply online for a maid. First, the maid must already be in Malaysia with a social visit pass. Then, you gotta register and log into the site, and you’ll be required provide your details, like your MyKad number, among other things. After that, you have to upload your maid’s documents too. Your application also goes through FOMEMA (Foreign Workers’ Medical Examination), and you have to upload medical reports of the maid. Once that’s done and approved, the following steps are uploading documents, documents verification, approval, result notification, online payment and printing of visitor’s pass ticker. What if the maid overstays the social visit pass? She can still be employed, but her employer will have to pay a fine of up to RM 900. There are downsides to this online DIY system, however – Predominantly from you having to do most of the legwork yourself in terms of documents. It might also be difficult for individuals to find maids without an agency’s database. There’s also a risk of getting scammed, because a maid might just disappear after getting the money for the plane ticket to Malaysia (which is borne by the employer), or after boarding the plane to Malaysia. You’ll probably have to train the maid yourself, since you don’t have the agency to help you do that. All in all, though, these downsides may be most outweighed by the radically reduced costs that comes with this new system. For even more detailed information, there’s this pdf file that has a step-by-step guide to the process. If you have any questions, they have a hotline: 03-88801468, or you can reach them through their email: admin_maidonline@imi.gov.my"
"This genius marketing idea might be illegal in Malaysia. You’re driving out for lunch one day to get food from your favourite hawker centre. Assuming the parking machines work in your area, you go and pay for parking and display the ticket on your dashboard as usual. But when you come back from your satisfying meal, you see this on your windscreen. Your first reaction is to get mad. What is that local council officer doing giving you a fine even after you paid the parking fee? But upon closer inspection, your anger turns to confusion; this piece of paper isn’t from your local council. In fact, it’s not even a saman at all! It’s an ad! From Ah Longs… Turns out it’s a very creative but equally illegal ad created for another “pinjaman berlesen”. We normally just throw the flyers on our cars away, but if it looks like a saman from our local council, we’ll probably take a closer look. Sounds like a good idea, right? [READ MORE - Ah Longs’ numbers are right there on the illegal ads, why can’t the police catch them?] NO, bad idea! While you might be wondering who designed this ad so you can hire them for your next marketing campaign, you may need to reconsider because this may also land you in trouble with the law. MBPJ has actually lodged a police report, and put out a press statement against the fake summons because the name and logo on the “saman” are way too similar to theirs. It also turns out the “Malaysia Pinjaman Berlesen Agency” is not connected to “Majlis Bandaraya Petaling Jaya”, and doesn’t have a real license. [READ MORE - Is there any difference between Ah Longs and licensed money lenders?] Making documents that look like they come from an official source is a recognized crime under our Penal Code. It’s under “forgery” in Section 463, and it includes making a false document with the intention to get someone to enter a contract with them. Advertisers put their ads out there to get more customers - more people to enter contracts with them, so advertisements fall under this law. So the bottom line is: making “saman” flyers is a creative way to advertise, but it also might be an illegal one! You’ll also note that forgery includes situations where: Someone wants to cause damage or injury to the public or a person To support any claim or title (like the forged land titles in Boonsom Boonyanit case) To make someone part with their property To commit fraud The phrase “making a false document” actually has a specific meaning documented in Section 464 of our Penal Code. For our purposes, the part below is the most relevant. Penal Code - Section 464 (in part) “...who dishonestly or fraudulently makes...a document or part of a document...with the intention of causing it to be believed that such document or part of a document was made...by the authority of a person by whom or by whose authority he knows that it was not made…” In plain English, it means if you make a document with the intention to cheat someone or trick them into thinking it was made by another person, you can be found guilty of “making a false document”. There are a lot of illustrations that you can look through in Section 464, but they’re very long so we won’t include them here. The punishment for forgery is stated under Section 465 - up to 2 years of jail and/or a fine. But there could be more. These “saman” ads also look like they were issued by MBPJ because of the similarity in the name and logo. Is that also another crime? It depends on the facts and the situation, but it could be recognized as two other offences under Malaysian law. It might also be cheating, and being an impostor! If an ad is designed to trick or confuse people, it could fall under an even bigger crime. Section 468 of our Penal Code make a crime to commit forgery for the purpose of cheating. Penal Code - Section 468 “Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine.” (emphasis added) The legal meaning of “cheating” is defined in Section 415, which basically says that if you trick someone into giving over their property, or do anything they wouldn’t that could cause harm, you may be found guilty of cheating. Again, the law put in a handful of examples under Section 415 to illustrate the point better. This applies only to specific situations where the person is deceived, so if your “saman” ad is just a cute way to draw attention, like these ads that look like samans but were clearly from known companies, it could be perfectly legal if you’re not pretending to be the local council. So if you were trying to cheat people by pretending to be a licensed moneylender, or if you confuse people into thinking you might be connected to the local council, you might be found guilty of cheating by personation under Section 416. It’s basically the same as Section 415’s cheating except where someone is pretending to be someone they are not. The penalty for this is under Section 419, which is up to 7 years of jail and/or a fine. Penal Code - Section 416 “A person is said to “cheat by personation”, if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. Explanation—The offence is committed whether the individual personated is a real or imaginary person.” If you get “official” contact that looks suspicious, double check with the real authorities! Some not-so-honest people out there may be trying to make a quick buck off of you, they’ll exploit your trust in well-known symbols and may even use psychological tactics to make you do what they want. It’s not just these Ah Long ads that try to appeal as an official money lending channel, some businesses out there also use similar logos to well-known brands to make you think they’re related, such as this incident where Azeri Asia TV copied AirAsia’s logo. There are also the more extreme cases where “Hong Leong Bank”, “Bank Negara”, or even the “PDRM” call you to cheat you of your money. It’s known as the “Macau Scam”, which we’ve covered before at this link. [READ MORE - Some companies copy famous brands to mislead YOU] [READ MORE - These scammers can make their phone number look like the PDRM's] If you receive documents that look similar to government agencies’, it doesn’t hurt to double check with them. You can also make a police report to help the investigation or highlight the issue to them."
"How do bankruptcy proceedings work in Malaysia? Most of us wouldn’t think too hard about bankruptcy and when asked about it, the knee jerk reaction is to think that a bankrupt is someone who is terrible at managing their finances and would be forced to live on the streets after losing their house. Aside from that, there is also this general perception that being a bankrupt is something shameful. Aside from these general ideas on bankruptcy, those who are involved in bankruptcy proceedings might be at a bit of a loss as to how it all works. We know it may seem pretty daunting to have to deal with the stress and emotional roller coaster of having bankruptcy proceedings initiated against you on top of trying to understand all the legal issues thrown at you. Well, don’t fret because this article is here to help you guys out there and also to dispel some of the myths surrounding bankruptcy. Before we dive into all the questions and answers, the Bankruptcy Act 1967 was recently amended and is now known as the Insolvency Act 1967 (“IA 1967”). To understand the amendments, you have to read the Bankruptcy Act 1967 alongside the Bankruptcy (Amendment) Act 2017. You can read about the amendments here. 1. What exactly is bankruptcy and how much do I have to owe? In it’s proper manner, you can only be called a bankrupt if the court has declared that you are one. Let’s explain this to you guys by looking at these two words – “insolvency” and “bankruptcy”. Insolvency means that you are in a state where you are unable to pay your debts. This means that you are not bankrupt (and might not ever be declared bankrupt) but you are just unable to pay your debts at that point in time. Generally, this is where offers for instalment plans come in. An example of this would be: Ali owes Bank MariAmbikLoan RM100,000. Ali is unable to pay off the amount at his current instalment plan. At this point, Ali is insolvent but not bankrupt. Ali then approaches the bank and they offer to restructure the plan so that Ali doesn’t have to be declared bankrupt and can slowly work his way out of insolvency. Bankruptcy, on the other hand, is the legal status that indicates that you are unable to pay off your debts to your creditor. You receive this status after the bankruptcy proceedings have been completed and the judge declares that you are a bankrupt. As for how much debt you need to have before you can be declared a bankrupt lies in section 5 of the IA 1967. Section 5 now tells you that in order for you to be declared a bankrupt, you would have to owe at least RM50,000 to your creditors. 2. How are bankruptcy proceedings like? Aside from owing your creditors at least RM50K, bankruptcy proceedings also can only be initiated against you when you have committed an act of bankruptcy. There are many acts which qualify as an act of bankruptcy under section 3 IA 1967 but the most common one is failing to respond to a judgment debt or bankruptcy notice. We will discuss this concept and the issues surrounding it in another article but for our current purposes, we created this quickie flowchart for you guys. Basically, it starts with you being unable to pay your debts and your creditors suing for the return of the money. When the court finds that you do indeed owe your creditors that amount, he will order you to pay the judgment debt (what you owe). The creditors will issue the bankruptcy notice and if you fail to comply with this notice, you would have committed an act of bankruptcy as per section 3(1)(i) IA 1967: “A debtor commits an act of bankruptcy...if a creditor has obtained a final judgment or...a bankruptcy notice under this Act requiring him to pay the judgment debt or sum ordered to be paid...and he does not within seven days after service of...” After this act of bankruptcy is committed, then your creditor can start bankruptcy proceedings against you. After the court finds you bankrupt, you would have to declare all the assets that you own and all your creditors will file the proof of your debt with them. Your property will then be distributed among your creditors. A quick fun fact is that your creditor is simply anyone you owe at least RM50,000 to. This means that if you borrowed RM50,000 from your friend and failed to pay to it back, he can initiate bankruptcy proceedings against you as well. Bear in mind that even a minor (someone under the age of 18) can be made a bankrupt through his guardian and there is technically, no maximum age for bankruptcy proceedings. 3. How would I know if I am a bankrupt and how do I get out of bankruptcy? It might seem dumb to ask how would someone not realise that they have been declared a bankrupt especially with all the processes involved but we are pretty sure that you guys would have come across stories of Malaysians getting declared bankrupt without them even realising it. To understand how this may happen, we have to look at how bankruptcy notices are served. Typically, your creditors must serve the notice on you personally but if they can’t find you at your listed address, they can apply to the court for substituted service. This means that they would be allowed to “serve” you the notice through other means such as publishing the notice in newspapers or sending it to your last known address. So, if you move a lot and fail to inform your creditors of your change in address, you can be declared bankrupt. This means that there is no point trying to run away or trying to avoid your creditors if you know that you are headed towards bankruptcy because while personal service is the default position, the court can always order the use of substituted service and the court can still deliver their judgment even if you don’t show up. There are also stricter laws on when the courts will allow your creditors to use substituted service with the new amendments in place and you read about it here. If you have been a guarantor for someone or you are itching to find out about your status, you can use MyEG’s services to check your bankruptcy status. They charge RM12 per name per bankruptcy search. Aside from that, you can also make a request for your credit report from Malaysia’s Credit Bureau (commonly referred to as CCRIS). As to how to get out of bankruptcy, the new amendments provide for an automatic discharge of bankruptcy after 3 years from the date you submit your statement of affairs to the Insolvency Department. Once you have been discharged from bankruptcy, ALL your debt which you have not managed to pay would disappear. This is provided for in section 35: “...where a bankrupt is discharged, the discharge shall release him from all his debts provable in the bankruptcy...” Bear in mind that this release from debts does not include debts owed to the government or fines or anything obtained from fraud. 4. What happens to me if I am declared a bankrupt? We have all seen those movies where creditors are depicted as blood sucking, vampires that drag away your first born child to be sold. Okay, that was an exaggeration but we have seen movies depicting them as taking away everything you own, down to the last piece of cloth on your back. You are then reduced to surviving based off the goodwill of others or begging on the streets. We are pleased to report that the two situations above are exaggerations, your typical Hollywood-esque flamboyance. What happens when you have been declared bankrupt is actually very procedural. Remember the flowchart we included above? What comes after the court finds you bankrupt is that you have to declare your assets. This is found in section 27(2) IA 1967 (as amended by the BAA 2017): “A bankrupt shall give such inventory of his property, such list of his creditors and debtors and of the debts due to and from them respectively, submit to such examination in respect of his property or his creditors...and generally do all such acts and things in relation to his property and the distribution of the proceeds amongst his creditors as are reasonably required by the Director General of Insolvency...” After declaring your assets, your assets will then be vested (be under the control of) with the Director General of Insolvency (“DGI”) who will then sell them and distribute the earnings among your creditors. Section 48 IA 1967 lists down what kind of property will be taken by the DGI and in short, all your property can be taken to be sold by the DGI except the following things: Any property you hold on trust for another person The tools of your trade, clothes, bedding, and any other necessities that you or your wife and children may need but the value of all of these things must not exceed RM5,000 Aside from the vesting of your property with the DGI, your monthly income can also be used to contribute to the settlement of your debt. This is found in section 57 of the Act where the DGI is empowered to order you to put a portion of your salary to debt repayment. The more pressing question that many of you would have is would you lose your house. This is where things get slightly complicated but the first thing you need to know is that there are two kinds of creditors: Secured creditors – creditors whom you gave collateral to such as a house or car e.g a bank Unsecured creditors – creditors whom you did not give collateral to e.g your friend When it comes to bankruptcy issues, secured creditors take priority over unsecured creditors which means that any profits from selling your property goes to them first. In the context of housing loans and in the event you default in payment for your housing loan, your bank (secured creditor) can seize your property to auction off and recover the housing loan that is owed to them. They can do this because they would have secured their interest by registering a charge on your property (this part overlaps a little with the National Land Code and we will cover this in another article). This means that for houses, the steps that your bank can take if you default on your loan repayments can be different and separate from bankruptcy proceedings. In short, the answer to whether you would lose your house is a YES. 5. What other rights do I lose if I become bankrupt? Aside from having to vest your properties (and part of your income) with the DGI, being a bankrupt also limits some of your rights and disqualifies you from certain positions. This can be found in various parts of the Act such as section 36 and section 38 but to make for the purposes of this article, we will list it down for you. The list is as follows: No overseas travel – being a bankrupt means that you would have to surrender your passport. However, you may apply to the DGI for overseas travel under special circumstances, approval of which is subject to the discretion of the DGI. No management of companies – you are not allowed to become the director of any company or be part of a partnership or run your own business. Aside from that, you are not allowed to be involved in the business (whether as a director, part of the management or as an employee) of any business run by your spouse, children, or relatives. No judgeship (this is a real word) – you are disqualified from being appointed as a Sessions Judge or Magistrate, being nominated/elected as a councillor of a local authority, be a trustee, or a member of Parliament. Limited legal proceedings – aside from an action for damages related to personal injury, you are not allowed to commence any legal proceedings without prior approval from the DGI. One bank account only – you are only allowed to open one bank account for the purposes of crediting your monthly income. Limited credit card use – if you own a credit card, you would only be able to get a credit limit of RM1,000. Submission of accounts – you are required to submit an accounting of your income and expenditures once every 6 months and report all monies/properties that come into your possession if they exceed RM500. 6. Will my bankruptcy status affect my family? As highlighted earlier, there is a chance that you could lose your home if you are declared bankrupt. If you do, this would affect your family as you would have to seek alternative housing. Aside from that, under section 31 of the IA 1967, the court may summon your spouse or anyone who may have information of your assets and how you deal with them in order to gain more information about your assets. If your spouse refuses to attend court, the court may even issue a warrant for his/her arrest. Section 31 IA 1967: “(1) The court may...summon...wife of his, or any person known or suspected to have in his possession any of the estate or effects belonging to the debtor...or any person whom the court deems capable of giving information respecting the debtor, his dealings or property… (2) If any person so summoned...refuses to come before the court at the time appointed, or refuses to produce any such document...the court may by warrant cause him to be apprehended and brought up for examination.” Bankruptcy proceedings can also be initiated against your estate after your death (section 122 IA 1967) which means that your family may not directly pay for your debts but your estate can be used to clear your debts if the courts allow it. 7. Is there anything I can do to prevent myself from falling into debt? Malaysia actually has an agency that is set up to help you manage your finances and provide you with financial counselling. Some of you might be familiar with it and it is called the Credit Counselling and Debt Management Agency, commonly known as the AKPK. You can even contact these guys to find out more about their debt management program where they work together with you to develop a personalised debt repayment plan and even consult with your creditors to structure a manageable scheme for you. Another slice of good news is that the recent amendments also incorporated a new system that allows you to negotiate with your creditors in order to come up with a debt repayment scheme. You can read more about it here. At the end of the day, the best way is to always monitor your expenses and try to gain more financial knowledge. It also never hurts to diversify your savings and investments. [READ MORE: 5 changes to Malaysia’s bankruptcy laws that make it harder to become a bankrupt]"
"Is it a crime to watch porn online in Malaysia? [Artikel ini juga tersedia dalam Bahasa Malaysia. Klik sini untuk baca!] Malaysia is well known for having one of the tightest regulations in regards to media in the world, especially censorship. Our country was ranked at 146 out of 180 countries (the higher the number, the stricter) in the Worldwide Press Freedom Index by Reporters Without Borders, in 2016. One of the subjects of these censorship laws and regulations is pornography – incidentally a topic that Asklegal gets A LOT about, specifically whether it is legal to watch porn online in Malaysia. Well, we’re here to deliver. So recently, there’s been news that the Malaysian authorities will be using software called Internet Crime Against Children — Child Online Protective Services (ICACCOPS) to monitor our one-handed surfing activities on porn sites in real time – including time spent on the site, uploads, and downloads. As you can tell from the name of the software, this monitoring is intended to combat the access and distribution of child porn online, as Malaysia is the highest consumer of child porn in Southeast Asia. But while child porn is definitely, confirmed, 100% illegal; what if you were just watching “regular” porn? Will you get a knock on the door from the PDRM or the MCMC? Before diving into the law on pornography, what constitutes “porn” in Malaysia? It seems like there’s no specific definition on what pornography is in the legal context in Malaysia, but what we do have is the term “obscene”. Under Section 292 of the Penal Code, “obscene objects” are mentioned, and our courts have a pretty liberal stance of what these objects can be. They can range from books to DVDs, and even video clips. Also, we’re only answering the question based on WATCHING porn online. This doesn’t include creating, distributing, selling, or sharing, which fall under different laws and carry different penalties; so you may want to put off that career change for the time being. That’s cleared up, so we can start with something a little more retro; which is to say, any medium before streaming became available. It’s a crime to “own” porn Again, Section 292 of the Penal Code is particularly of note: (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever; There’s a lot of activities that are listed in the section, but the most relevant one to the everyday Malaysian is “has in his possession”. It’s basically illegal to possess anything that’s pornographic in nature. This includes magazines, pictures, DVDs, and as mentioned above, video clips. This seems to apply to only pornographic material that you have on you, and not, say, if you watch it on the internet. If found guilty of said offence, individuals can be fined up to RM 10,000, jailed for up to 3 years, or both. That’s not all. The Film Censorship Act 2002 also refers to pornography in the context of an offence: 5. (1) No person shall— (a) have or cause himself to have in his possession, custody, control or ownership (of)… any film or film-publicity material which is obscene or is otherwise against public decency This Act focuses more on obscene materials that are in the form of film. Offenders may expect to be fined between RM 10,000 to RM 50,000, imprisonment of up to 5 years, or both. One case involving this Act is where the “Datuk T Trio” showcased an obscene film involving a person that resembled Datuk Seri Anwar Ibrahim. The perpetrators were fined in default of jail (they’d rather pay than go to jail). Another case in 2016, infamous “sex blogger” Alvin Tan and his girlfriend were charged under this Act but were acquitted in 2016. They were charged with displaying pornographic images on their blog. So now you know that you can be guilty of an offence if you have a porno DVD in your possession. What about if you stream it from sites such as one that rhymes with Corntub? Watching porn online is technically A-OK Yep, you read right. There’s no laws against watching porn online. The thing is, you can’t HAVE it on your PC/Laptop/Tablet/Phone, though, because that would contravene the Penal Code and the Film Censorship Act. What we do have is the Malaysian Communications and Multimedia Content Code, and the website blocking, both by the Malaysian Communications and Multimedia Commission (MCMC). The Content Code quite a wide range of content, from porn to content with bad language, and even advertisements. Lets see what they have to say on porn specifically. Any portrayal of sexual activity that a reasonable adult considers explicit, and pornographic is prohibited. It’s meant as a catch-all for anything that even resembles porn. This reinforces the notion that pornography should be illegal to view online as well. However, this is only a code of conduct, and not an actual Act of Parliament, and as such, you do not technically commit an offence if you watch porn online. As a side note, this code covers child pornography as well, and states that it is strictly prohibited. This area is now governed by the Sexual Offences Against Children Act 2017. Child pornography is absolutely illegal (and horribly disgusting) and, if guilty of any of the wide array of offences related to child pornography, punishment includes a varying amount of fines, jail terms and whippings. On to the website blocking by the MCMC. Since the MCMC has started blocking websites from the late 2000s, they have gone on to block websites including but not limited to: pornography, “seditious” websites, gambling websites, and pirating websites. Don’t forget that one time when the game ‘Fight of the Gods’ was blocked here too. (im)Moral of the story: Don’t download Not that we’re advocating for the consumption of pornography, but, the TL;DR of this article is: You will get in trouble if you’re caught having porn. Porn magazines, indecent photos or videos in your devices, the works. It doesn’t matter who bought or downloaded it – if it’s on your device (or even if you were using someone else’s device, it’s on you. It doesn’t even matter if you had no intention of uploading or sharing it. Just having possession is enough to get you into trouble. If you’re watching porn online, there’s technically no law that you’re breaking. You’d probably upset your parents if they caught you doing it though. Don’t download or upload porn. Sharing is scaring. Anything involving minors is a strict no-no. To end the article, here’s some interesting statistics: apparently, Malaysia is in 8th place for “countries with the longest average session time” for watching porn online, while Malaysian women rank 7th highest in the world for accessing porn on-the-go. We can maybe pat ourselves on the back for this one: but wash your hands first."
"If you commit a crime in Malaysia, how can you get the judge to go easy on you? Imagine you’ve been summoned to court for a traffic offence, like driving in the emergency lane. You probably got issued a court summons instead of the fine you were expecting, and now you have to go to court. Driving in the emergency lane is a traffic offence under Rule 53(1) of the Road Traffic Rules 1959 (no online copy available), and is punishable under Section 119(2) of the Road Transport Act 1987 for up to RM2,000 in fines or up to 6 months in prison. Repeat offenders get it worse at up to RM4,000 in fines or up to 12 months in prison, or both. Almost no one would want to spend 6 months in prison if they can avoid it. Better not serve the maximum sentence and get something lower instead. But is there a way to get a lighter sentence from the judge? There is! You can just plead guilty While pleading guilty seems a little counter-intuitive or illogical, by saving the time for the court and cooperating, you may be given a more lenient sentence. To find out how exactly this works, we interviewed a former volunteer pupil at the KL Bar’s dock brief legal aid service, Khong Mei-Yan. When you get summoned to court, you are known as “the accused” or orang kena tuduh (OKT ). You’ll get read the charge of your offence and you can either plead “guilty” or “not guilty”. If you plead “guilty” or are proven guilty, the judge will proceed to pass your sentence. A sentence passed by a judge must follow the penalties stipulated in our written laws. Like the example above, driving in the emergency lane carries a maximum fine of RM2,000, but you can get a fine lower than that. “Case laws require judges to consider established legal principles on sentencing. These include recognised aims of sentencing, for example: to punish, to deter, and to rehabilitate. Very importantly, the judge is required to consider the mitigating and aggravating circumstances which may influence what sentence he wants to pass.” - Khong Mei-Yan in email interview with ASKLEGAL Mitigating circumstances are very simply anything that might show you deserve a lighter punishment, while aggravating circumstances are those that show you need to be taught a lesson, like if you have a long criminal record. Mei-Yan further explains to us that after a finding of guilt, the judge will always ask the accused or their lawyer to make a mitigation plea (rayuan). This is where you can persuade the judge to give a more lenient sentence, or a different type of punishment altogether. How else can get you a lighter sentence? Other than cooperating with the legal process, your sentencing can also depend on the impact it would have on your life. For example, if you have dependents (ie. young children or aging parents who depend on you) who would have a tough time if you were imprisoned or given a big fine, the judge can take it into account and give a lighter sentence. Mei-Yan gave us an example of how a lawyer makes a mitigation plea. It typically sounds something like this: “My Lord, the OKT is has pleaded guilty and saved the court’s time and costs. The OKT is ____ years old and is married. He is the sole breadwinner in his family which consists of his housewife, his 10 children, his aging parents, and their aged parents. The OKT has diabetes, asthma and is recovering from a broken leg. The OKT had at all times been cooperative with the police and had kindly offered to compensate the victim. My Lord, the OKT suffers from economic hardship and he used to work only as a lorry driver before he was caught. The OKT had always been a citizen of good character and this is his first offence. The OKT is truly repentant of his wrongdoing and therefore asks the court for the minimum fine.” Basically if the impact on you is going to too big when compared to your crime, the judge can consider going easy on you. Here’s a non-exhaustive list of factors that the judge can take into account: Pleading guilty to save time and costs Age Marital status Number of dependents (children, parents) Medical conditions Occupation Attitude and character One extra mitigating factor can be when you’ve been under remand for a long time, and should thus have a shorter time in prison. You can ask for your sentence to run from your date of arrest instead of the date of sentencing. But keep in mind that the judge is not obliged to go easy on you, they still have the discretion to decide what sentence to give. “A mitigation plea done right can help persuade the judge to pass a lighter sentence. However, the accused and their lawyer don’t have any control over how the plea will work. It’s still up to the judge to decide.” - Khong Mei-Yan in email interview with ASKLEGAL You don’t need a lawyer to make a mitigation plea Apparently, in situations where the accused is not represented by a lawyer, the judge themselves will actually assist the accused. They’ll prompt the accused with questions about their age, job, marital status, number of dependents, and whether they prefer a fine or jail time (where there is an option). So if you can’t get a lawyer, it’s not a big problem. [READ MORE - What if you need a lawyer but can’t afford one in Malaysia?] In any case, you might still find a lawyer’s guidance and expertise to be helpful. As Mei-Yan explains to us: “An accused may find a lawyer to be particularly helpful in the following cases: 1. The accused is a first time offender and is clueless and frightened 2. The maximum punishment would be unbearable 3. The accused has very good mitigating circumstances and a lawyer is in a better position to help mitigate on their behalf” - Khong Mei-Yan in email interview with ASKLEGAL She goes on to explain that if you want to be represented by a lawyer, you should engage their services before your court appearance. If you do need a lawyer, it’s best to get one as early as possible rather than right outside the courtroom. It’s illegal and unprofessional for lawyers to approach you and offer their services for a fee. And if it happens, you can actually lodge a complaint with the Advocates & Solicitors Disciplinary Board. An 18-year old boy was spared prison using a mitigation plea Mitigation pleas can reduce your fine, your jail time, and even spare you from the usual punishment - given the right circumstances. Mei-Yan shared her experience with a 18-year old boy who got busted for drug possession - which carries a very high fine under the Dangerous Drugs Act 1952 depending on the type of drug. The penalties can extend to RM20,000 in fines and up to 5 years in jail. His mitigation plea got him 1 month community service and a minimum fine instead. This doesn’t mean that a mitigation plea can help you escape jail, but the judge will consider if community service is enough to rehabilitate someone instead of sending them to prison. “When I was a pupil I was involved in the KL Bar dock brief program. One day when I was on duty, I was approached by a mother who told me her 18-year old son was in the lokap and she wished to advise her son to plead guilty to a charge of drug possession. After interviewing the mother and her son, I was told that the father of the child who was only a painter and the sole breadwinner of 10 children, the youngest of whom was still a baby. I informed the court of these facts and the judge released the boy on the condition of probation, community service for a month, and a minimum fine instead of a sentence of imprisonment. I was told by the court interpreter that the boy’s young age was the most significant factor which weighed on the judge’s mind.” - Khong Mei-Yan in email interview with ASKLEGAL Anyone can make a mitigation plea, even if you can’t afford a lawyer There are actually services provided by the Bar Council of each State under the dock brief programme, where trainee lawyers provide free ad hoc legal services to people in need. They can only deal with offences that fall within the Magistrate Courts’ jurisdiction. “Pupils on duty in a particular court can be distinguished by their name tag stating that they are from “Pusat Bantuan Guaman”. Those who wish to be represented by a pupil may indicate to the pupil that they wish to plead guilty and agree for the pupil to represent them. If the court has not commenced, the pupil will then mitigate on their behalf.” - Khong Mei-Yan in email interview with ASKLEGAL For cases that fall beyond the jurisdiction of the Magistrate Courts’, Yayasan Bantuan Guaman Kebangsaan (YBGK) offers free legal aid to Malaysian citizens through its panel lawyers. They can’t deal with death penalty cases though (generally more serious crimes like murder and drug trafficking). If you need more information on who can help if you can’t afford a lawyer, check out our article on legal aid over here."
"The untold story of the ""bin Abdullah"" children in Malaysia Of late, there have been a number of legal issues that have been taken to court surrounding Islamic matters. While the issues of unilateral child conversions through Indira Ghandi and reconversions through Rooney Rebit may sound familiar, we now have the issue of “bin Abdullah” children that is fast becoming a hot topic of its own. The question you may have now is why is it an issue for Muslim kids to be given the “bin Abdullah” surname? The reason simply is that the “bin Abdullah” surname can indicate that the child was born illegitimate or born out of wedlock. While this typically means the same thing, it has different connotations in Islam due to a fatwa that defines illegitimate children as: Child born out of wedlock Child born less than 6 months from the wedding Based off statistics provided to us by Sisters in Islam (“SIS”), in 2014, out of 474 cases reported, 27 cases involved the issue of illegitimate children. In 2016, it jumped up to 48 cases out of 419 cases. In particular, we’ll be looking at two cases – one in Johor, who took the NRD to court, and another in KL who we had the chance to interview. To give you a better idea of the problem faced by “bin Abdullah” children and their parents, SIS arranged an interview where we spoke to Rahman and his wife, Aisyah about the plight of their 13 year old son, Adam. Their names have been changed for purposes of privacy. The family caught in the middle Rahman and his wife are both in their thirties. He looks rather tired, and slightly uncomfortable. She, on the other hand, is a determined looking woman but equally gives off a hint of discomfort. Adam is a gangly 13 year old who stayed in the waiting area throughout the interview as his parents have decided to keep him in the dark until the matter has been resolved. Their story starts in 2003 when Adam was born 3 months after Rahman married Aisyah. As is usual for the birth of every child, Rahman and Aisyah proceeded to the NRD to record the birth of their son. Rahman and Aisyah have heard stories of children in similar situations being given the “bin Abdullah” surname and were surprised when the birth certificate came back with the name...Adam bin Rahman and the words, “Permohonan s. 13” was on it. While they didn’t think these words carried much weight, it would come back to haunt them 12 years down the line. Since they were prepared to have their son named Adam bin Abdullah due to the circumstances of his birth, they were overjoyed that Adam would carry his father’s name, figuring that stories of children being given “bin Abdullah” surnames were because their fathers refused to acknowledge them. Fast forward years later and Adam is now 12 years old. After his birthday in December, Rahman takes his son to the local NRD to get his identity card (“IC”) done. As normal, Rahman fills in the form and submits it at the counter. His application was accepted by the officer in charge and Rahman leaves NRD with Adam in tow. Three hours later, Rahman receives a call from NRD telling him that he has to come back and withdraw his application. Stunned, Rahman asks why and the officer says that because his case is classified as an application under section 13 (the same section mentioned on the birth certificate), he must cancel his current application and reapply with the his son’s name listed as...Adam bin Abdullah. Rahman asks for further details or an explanation but the officer is persistent that there is nothing he can do and just keeps asking Rahman to return to the NRD to cancel his application and reapply with the “bin Abdullah” surname. Worried about Adam’s emotional wellbeing over suddenly not being able to carry his father’s name anymore, Rahman cancelled his son’s IC application as directed but did not reapply with the “bin Abdullah” surname. He fretted over this decision as he knew that his son would face difficulties without an IC but at the same time, he knew Adam wouldn’t understand why he had to have a new name suddenly. Aside from that, Rahman knew that his son would face the brunt of social stigmatization faced by children who carry the “bin Abdullah” surname. As Aisyah succinctly puts it: ”If our son had been given the bin Abdullah surname from the start, we would have accepted it and we could have explained to Adam why he doesn’t carry his father’s name but after 12 years, it is difficult for us to explain the situation to Adam. It would be difficult for him to deal with the questions from his friends. Our only worry is how this would affect our son because we believe that our mistakes should not be borne by Adam.” – Aisyah, mother of Adam, in an interview with ASKLEGAL, translated from Bahasa Malaysia You can read more about the story of Rahman’s family from the Malay Mail’s article here who jointly interviewed the family with ASKLEGAL. So this leads us to the crux of the problem, which is... The clash between religion and secularism In order to see how the problem came about, we first have to see how secular civil law treats an illegitimate child, and how such a child is dealt with in the Islamic context. Secular Remember how Rahman was told that his son had to carry the bin Abdullah surname because it was a section 13 application? This refers to section 13 of the Births and Deaths Registration Act 1957 (“BDRA 1957”) and it reads as follows (emphasis added): “...in the case of an illegitimate child, no person shall as father of the child be required to give information concerning the birth of the child, and the Registrar shall not enter in the register the name of any person as father of the child except at the joint request of the mother and the person acknowledging himself to be the father of the child, and that person shall in that case sign the register together with the mother.” Section 13 means that when there is a registration of birth of an illegitimate child, the Registrar does not have to record down the details of the father unless and until the mother and the person claiming to be the father of the child requests for the father’s name to be recorded. Section 13 must be read with section 13A(2) which states that (emphasis added): “The surname, if any, to be entered in respect of an illegitimate child may where the mother is the informant and volunteers the information, be the surname of the mother; provided that where the person acknowledging himself to be the father of the child in accordance with section 13 requests so, the surname may be the surname of that person.” Section 13A(2) means that illegitimate children can only take their father’s surname if the man acknowledges himself as the father of the child as per section 13 and requests for the child to carry his surname. A point to note is that the definition of an illegitimate child under the BDRA is simply the every day definition of a child born out of wedlock. It does not take into account the time of marriage (which you will see in the Islamic definition). An example of how these two sections work together is as follows: Ali marries Siti and a son (Abu) is born to them 4 months after their marriage. Ali and Siti proceed to the NRD to register their child’s birth and both request that Ali is to be recorded as the father of Abu (section 13). Since Ali has acknowledged himself as the father of Abu, Abu’s surname would be Ali’s name (section 13A(2)). Therefore, Abu’s name would be Abu bin Ali. Islam The National Registration Department (NRD) referred to two fatwas (yes we know the plural for fatwa is fatawa) as a basis for their decision to register these children as “bin Abdullah”. These are: 1981 Fatwa (emphasis added) “Muzakarah Jawatankuasa Fatwa Majlis Kebangsaan bagi Hal Ehwal Ugama Islam Malaysia Kali ke 1 yang bersidang pada 26-29.1.1981 telah membincangkan Penamaan Anak Tak Sah Taraf (Anak Luar Nikah). Muzakarah telah memutuskan bahawa: Anak zina atau luar nikah (anak tak sah taraf) sama ada diikuti dengan perkahwinan kedua pasangan ibu bapanya atau tidak hendaklah dibinkan atau dibintikan kepada Abdullah.” 2003 Fatwa (emphasis added) “Muzakarah Jawatankuasa Fatwa Majlis Kebangsaan bagi Hal Ehwal Ugama Islam Malaysia Kali ke 57 yang bersidang pada 10.6.2003 telah membincangkan mengenai Anak Tak Sah Taraf. Muzakarah telah memutuskan seperti berikut: a. Anak Tak Sah Taraf ialah: 1. Anak yang dilahirkan di luar nikah sama ada akibat zina atau rogol dan dia bukan daripada persetubuhan syubhah atau bukan daripada anak perhambaan. 2. Anak dilahirkan kurang dari 6 bulan 2 lahzah (saat) mengikut Takwim Qamariah daripada tarikh tamkin (setubuh). b. Anak tak sah taraf tidak boleh dinasabkan kepada lelaki yang menyebabkan kelahirannya atau kepada sesiapa yang mengaku menjadi bapa kepada anak tersebut. Oleh itu, mereka tidak boleh pusaka mempusakai, tidak menjadi mahram dan tidak boleh menjadi wali.” Basically, the 1981 fatwa states that an illegitimate child must carry the “bin Abdullah” (or “binti” if it is a girl) surname while the 2003 fatwa clarifies the definition of an illegitimate child as a child that is born out of wedlock or a child that is born less than 6 months from the date of sexual intercourse. Perhaps some of you are beginning to see why the NRD rejected Adam’s IC application – Adam was born a mere 3 months after Rahman and Aisyah’s wedding. According to the fatwas, he has the status of an illegitimate child and must be given the “bin Abdullah” surname. This of course leads to the crux of the issue, which is... Syariah, fatwas, and where they stand in Malaysian law As Malaysia is a multi-cultural and multi-religious country, we often times have to accommodate the varieties of beliefs and practices present. Sometimes, this creates a bit of a conundrum especially when it becomes enmeshed with legal issues. This is where Rahman’s problem comes in because the 2 Islamic fatwas are in conflict with the Births and Deaths Registration Act 1957. Before we move into the legalities, let’s clarify what a fatwa is and its legal position in Malaysia. A fatwa is an Islamic legal pronouncement, issued by an expert in religious law (mufti), pertaining to a specific issue, to resolve an issue where Islamic jurisprudence (fiqh), is unclear. In Malaysia, reference has to be made to the Federal Constitution to understand the position of fatwas in the law. Specifically, attention must be paid to Articles 3, 75, and the State List (Ninth Schedule). Article 3 makes mention of Islam as the official religion of Malaysia and sets out that Islamic law is a matter of State law under the governance of the Sultan of each State. This must be read in conjunction with Article 75 which states that if a State law is in conflict with a Federal law, the State law will be void. The State List found in the Ninth Schedule lays out the areas which falls under State jurisdiction where laws can be made by the Dewan Undangan Negeri of respective States, as opposed to the Federal List which states down areas which Parliament legislates on. As you may suspect, Islamic law falls under the State list and specifically, Muslims in each State can be subjected to Islamic laws on matters relating to succession, marriage, divorce, maintenance, adoption, legitimacy, guardianship etc. We know that this is all pretty confusing but just bear in mind these few points: The Sultans and muftis of each States can issue their own fatwas and it can be made into State law if gazetted The muftis of each State can choose whether or not to adopt the fatwas made by the National Fatwa Committee Fatwas can only be gazetted (given legal status) if it falls within the area that Islamic law has power over e.g marriage, divorce, succession etc. If the fatwa (which has been gazetted and made into State law) contravenes any Federal law, it will be void State laws are usually known as enactments or ordinances As we mentioned in the beginning of the article, Adam isn’t the only child affected by the “bin Abdullah” issue. In fact, the family is actually waiting for the final outcome of a lawsuit that took place in early 2017. A family in Johor sued the NRD for this very reason As a quick overview on the Johor case, the father (known to the media as MEMK) and mother (known as NAW) had a child who was born 5 months and 24 days after the date of their marriage. MEMK then decides to register his child’s birth and despite the NRD approving MEMK and NAW’s joint application to register MEMK as the father under section 13, their child was given the “bin Abdullah” surname in his birth certificate. MEMK then applies to the NRD to correct his child’s birth certificate to reflect his surname but it was rejected. MEMK and NAW then sued the NRD. In the High Court, the judge sided with the NRD and said that what the NRD did was lawful as it was in line with Islamic law. Dissatisfied with the decision, MEMK appeals his case and the Court of Appeal overturned the High Court’s decision. To make the judgment digestible, these are the few questions that were posed to the Court: Whether the Director General of the NRD has to power to give illegitimate Muslim children the “bin Abdullah” surname? Does section 13 have to be written on the child’s birth certificate to highlight his illegitimate status? Whether the fatwas can be used as a source of legal authority for determining an illegitimate child’s surname under section 13A(2)? Whether the fatwas have force of law? Whether there was a basis to invoke a religious element in the NRD’s decision making process? In short, the Court of Appeal disagreed with the High Court because it ruled that the language found in section 13A(2) was clear and unambiguous. It sets out that an illegitimate child’s surname can be either: (i) the mother’s, if she volunteers the information or (ii) the father’s, if he registers himself as a father under section 13 and requests for the child to bear his surname. There is no mention of the use of the “bin Abdullah” surname. Further to that, the court stated that the BDRA 1957 does not make a distinction between the registration of Muslim or non-Muslim children. The NRD’s decision to refer to the fatwas was wrong as the 2003 fatwa was in direct contravention (violation) of section 13A(2). Beyond that, the judge also stated that (emphasis added): “The [NRD’s] jurisdiction is a civil one...For that purpose, he is not obligated to apply, let alone be bound by a fatwa issued by a religious body...That would in effect be to take away the statutory right accorded to the [MEMK] by s. 13A(2) to have his name ascribed as the [child’s] surname in the birth certificate. A fatwa or a religious edict issued by a religious body has no force of law...in the absence of any express provision in the BDRA to import the application of Islamic law on legitimacy in the registration of a surname under s. 13A(2), there was no basis to invoke any religious element in the decision-making process.” – Abdul Rahman Sebli JCA, A Child & Ors v Jabatan Pendaftaran Negara & Ors, 25th July 2017 The quotation above answers questions 1, and 3-5 and in short, states that fatwas cannot be used as a source of legal authority, they do not have force of law and there was no basis for invoking a religious element in the NRD’s decision making process. The court goes on to explain that even if the fatwa has a force of law, it is only confined to matters relating to hukum syarak and has nothing to do with the NRD’s duties, which is to register all the births and deaths in Peninsular Malaysia. Should the Director General go beyond that duty, he would be acting in excess of his powers. Finally, the court clarified that section 13 merely sets out the procedure for a father to be registered as the father of an illegitimate child. It does not require the insertion of the section 13 information on their birth certificate. Hence, it is not a legal requirement. At the end of the day, the court found that the father’s right to have his name used as his child’s surname was a statutory right given to him by law and the NRD had no right to deny him of his rights. If you guys are rejoicing for this Johor family as well as for Rahman and his family, hang on. The battle is not over… yet. The NRD has appealed their case to the Federal Court and they are now awaiting their hearing which has been set for February. If the Federal Court sides with MEMK and NAW, then Rahman and Aisyah can breathe a sigh of relief. This would mean that they would be able to apply for Adam’s IC in time for him to sit for his PT3 examinations. If the Federal Court sides with the NRD then Rahman and Aisyah have one of three options open to them: To register their son’s name as Adam bin Abdullah and deal with the aftermath that comes To carry out the process of tabbani – to adopt Adam as a son (since he is not considered as Rahman’s son legally) and then nasabkan (to make Adam part of Rahman’s lineage, as a matter of speaking) Adam To change Rahman’s name to one of the 99 names of God and let Adam carry that surname (apparently the NRD gave Rahman a choice of giving his son a “bin Abdullah surname or one of the 99 names of God) Obviously none of these options are appealing to Rahman and Aisyah as Adam would still have to deal with a state of confusion and emotional upheaval. Their frustrations at the bureaucracy and confusing state of law is best surmised by Aisyah: “Kalau pihak JPN kata mereka merujuk kepada fatwa untuk menbin Abdullahkan anak saya sekarang, saya nak tanya pihak JPN, anak saya kafir lah dari masa bayi sampai umur 12?” – Aisyah, mother of Adam, in an interview with ASKLEGAL Adam is now entering Form 2. He still doesn’t have an IC and, worst of all, he is beginning to suspect that something is amiss as he constantly questions Aisyah and Rahman about when he would be receiving his IC. His parents are still trying to keep Adam out of the loop because they are worried that the news would adversely affect his emotional wellbeing. All conversation stopped as we exited the interview room and saw Adam curiously staring at us. We then said our goodbyes to the parents who appeared utterly downtrodden. [Update Feb 2020: The courts have made a decision] The Federal Court has overturned the 2017 ruling, which allowed an illegitimate Muslim child to have their father’s name, instead of “bin or binti Abdullah”. In a landmark decision, it’s decided that: 1. Illegitimate Malay Muslim children born out of wedlock aren’t allowed to have their father’s name. This is because Section 13A of the Births and Deaths Registration Act (1957) does not apply to the birth registration of Malay Muslim children, as Malays do not carry surnames. 2. The NRD (National Registration Department) is ordered to remove “bin Abdullah” from the child’s birth certificate. The National Fatwa Committee had previously made a fatwa that ruled for illegitimate children to have “bin Abdullah” as their name. However, since there is no fatwa gazetted in Johor—the child’s birth state—when the case started, on how to name an illegitimate child, the NRD could not impose that fatwa for this case. So far, there is no confirmation whether the child will have any sort of last name at all. We’ll update the article as and when there is a confirmation on it. [Read part 2: Children given a ""bin Abdullah"" surname may not need to use it anymore]"
"If you want to sue someone in Malaysia, what happens if they ignore you? Have you ever been in that scenario where you wanted to sue someone but your lawyer tells you that they are having trouble serving the papers on that person because he keeps running away and hiding? Or maybe you were on the flip side of that scenario and you were the one getting sued. Maybe you figured that if you keep running away and they can’t pass you the court papers then you can play dumb and avoid going to court. If you were ever in either scenarios or just have plain curiosity about how people are informed of the fact that they have been sued, hang in there. We are here to help you guys out. Further bear in mind that this article merely provides a brief overview on how someone is served in Malaysia and doesn’t go in depth into the multitude of rules that cover a multitude of scenarios. To kick things off... Malaysia gives you personal service The rules for service of court documents (known as originating processes and divided into writs or originating summons) can be found in the Rules of Court 2012. Under Order 10, Rule 1, the rules require service to be effected through two ways only: Personal service – they have to hand it to you in person Through prepaid AR registered post at the last known address – this stands for advice of receipt registered post and it’s basically where the post office will record down their attempts at delivery and who receives it Aside from these two methods of serving, the service should be done within the first month of the issuance of the writ. The general rule to remember is that personal service is always the preferred method. Order 10, Rule 1: “Subject to the provisions of any written law and these Rules, a writ shall be served personally on each defendant or sent to each defendant by prepaid A.R. registered post addressed to his last known address and in so far as is practicable, the first attempt at service must be made not later than one month from the date of issue of the writ.” If you have a lawyer and he accepts the writ/originating summons on your behalf then you are also deemed to have been served (Order 10, Rule 1(2)). On the other hand, if your company is getting sued, you are considered to have been served if a copy finds it way to any of the directors, the company secretary or any other principal officer. A copy can also be left at your company’s registered office address. If you are thinking that you can avoid getting served by refusing to accept the writ when the server tries to leave it with you, you might want to pause there. The 1832 English case of Thomson v Pheney tells us that a person who refuses to be served can still be served if the server informs him of the nature of the document and throws it down in his presence. If you are thinking that you can cheat the system by simply running away from the servers and moving houses, you are sorely mistaken because… There is this thing called a substituted service Before we delve into the legalities around substituted services, let’s paint you a picture of what it is. Have you ever seen notices in newspapers, advertising someone’s bankruptcy? That is one of the methods of substituted service. Substituted service happens when you try to evade service or it is impracticable for the lawyers to serve you personally. The lawyer will then apply for the court’s permission to use substituted service to serve you instead. This service is allowed for through Order 62, Rule 5 and it it done through any way the court directs. The more common forms of substituted service are through advertisements, posting on the court’s notice board, or posting a notice at your last known address. You have most likely seen one of these in your newspapers. However, the court will not allow the lawyer to utilise substituted service if they think that he hasn’t tried to serve you personally. This is when the case of Re S Nirmala a/p Muthiah Selvarajah ex parte New Straits Times Press (M) Bhd needs to be looked at. In this case, the judge said that before they can grant permission for substituted service to be used, the lawyers have to comply with the Practice Note 1/68. The Practice Note is basically a recommendation for certain steps to be taken before an application for substituted service is made. In essence, the Note requires the lawyer to make 2 calls to your residence/business place at reasonable hours. The second call should be made by a letter of appointment which lists down the date and time they would call you and the opportunity for you to reschedule. The judge said that if the lawyer knows your whereabouts, then he has to complete the steps listed in the Practice Note before he can apply for substituted service but if he doesn’t know where you are, then he doesn’t have to comply with the Practice Note. However, since most of us are online these days, wouldn’t it be easier to reach through social media or even a website like...Asklegal? Actually our neighbours down south did just that... In late 2016, the islanders of Singapore were rocked with a tiny development in their law which carried great repercussions. The State Court in Singapore allowed the lawyers of R&D Pharmaceuticals to serve papers on their business associate, Tan Chong Min, through the use of...Whatsapp. R&D Pharmaceuticals had sued Mr. Tan after his failure to return a loan of 43,000SGD and their lawyer had tried to contact Mr. Tan several times at his last known address. After failing to serve the documents on him personally, the lawyers then applied to the court to allow them to serve Mr. Tan through the use of Whatsapp. There were several arguments that were put forward by the lawyers to convince the court to allow them to use Whatsapp and in brief, they are: There would be unnecessary delay and expenses in trying to bring an absconding party to court The director of R&D Pharmaceuticals had been in touch with Mr. Tan via Whatsapp since October 2015 and Mr. Tan had responded to the messages The lawyers had a copy of Mr. Tan’s IC and could match the picture there to the picture set as Whatsapp’s profile picture Given the above arguments and the advent of technology in our lives, the court allowed the lawyer to serve the papers (including the statement of claim) to Mr. Tan via Whatsapp. The moment the message was sent, Mr. Tan was deemed to have notice of the court proceedings against him and since he failed to enter his defence or respond to the notice, the court gave R&D a judgment in default (this means that the court ruled in their favour since Mr. Tan was absent). The court also went on to explain that service could also be effected through other smartphone messaging platforms linked to telephone numbers. This means that it doesn’t include Whatsapp alone but also other platforms such as Viber or Line. You can read more about this case here. So, where does this leave Malaysia? Malaysia does not serve through social media for now Since the Rules of Court state that the general rule is through personal service/prepaid AR registered post, serving through social media/messaging platforms like Facebook or Whatsapp may be considered substituted service. As mentioned above, the recognised methods of substituted service in Malaysia is though advertisements or notices. While Malaysia is still kicking it old school, it remains to be seen whether our judges would evolve with the times and follow Singapore’s example. The courts might even take it a step further and allow you to be served through posting on your Facebook wall or through Twitter like New Zealand and Canada has done. Malaysians can expect the methods of serving to evolve because let’s face it, who in the world combs through the court’s notice boards or even read the listing in newspapers anymore?"
"Which Malaysian business type should you choose for your company? This article was written by Dinesh Sadhwani, a practicing advocate & solicitor of the High Court of Malaya. For those of you who want to start your own business, one of the questions that might be on your mind is this – What type of business you should register?. Some of the common options in Malaysia to consider are: A private company limited by shares incorporated under the Companies Act 2016, which can be identified by its suffix Sdn Bhd (Sendirian Berhad). An unincorporated business (sole proprietorship). An unincorporated partnership (conventional partnership). A limited liability partnership (LLP) registered under the Limited Liability Partnerships Act 2012, which can be recognised by its suffix PLT (“Perkongsian Liabiliti Terhad”). So many options to choose from, but how do we know which one to go with? We’ll discuss the pros and cons of each type below. Company limited by shares (a.k.a. the “Sdn Bhd”) Suffix: Sdn Bhd Good for: Mid sized to large businesses The Pros: 1. The company is “alive”: One of the benefits of operating a Sdn Bhd is that the company is a separate legal entity. This means that the company is treated as a separate “person” in law. The company has almost all the powers which you and I (individuals or, as the law calls it, – “natural persons”) have – the power to purchase, own, and sell assets; the power to enter into contracts; the power to open bank accounts and receive money; the power to sue (as well as risk being sued!), and so forth. The shareholders, directors and employees can come and go, but the company will remain in existence until it is dissolved (e.g. wound up or struck off from the register of companies). This makes a Sdn Bhd great for succession plans. 2. Limited liability for owners: Probably one of the more important benefits of using a Sdn Bhd is that the liability of the company’s shareholders is limited to the amount they have paid or agreed to contribute. For example, if you invest RM200,000 in a company in exchange for 20% shareholding and the company later becomes insolvent, your worst case downside is that you are unlikely to recover your investment. As a shareholder or even a director, you are not legally liable for the company’s liabilities. This is also why a private company carries the suffix Sdn Bhd (Sendirian Berhad) – the “Berhad” denotes the limited liability of shareholders. Shareholders do not have to worry about company’s creditors going after them personally for the company’s liabilities. There are some exceptions to the limited liability (e.g. fraud or sham) but that is a topic for another day. 3. You can run a 1 man company: Under the new Companies Act 2016, it is now possible for a company to have a sole director and individual shareholder (who can be the same person). Under the old Companies Act 1965, you needed at least 2 directors and individual shareholders. Therefore, sole proprietors can now explore running their business under a company, without the need to bring a fellow director/shareholder on board. The Cons: 1. High Costs: Incorporating and operating a company comes with initial start-up costs (e.g. incorporation costs) and recurring costs (e.g. the costs of engaging a company secretary and auditor every year). On this note, the Companies Commission of Malaysia (CCM) has issued a practice directive whereby certain companies are exempted from the requirement to appoint an auditor. 2. Taxation: A company is subject to tax at the applicable corporate tax rate. If your personal income tax rate is lower than the applicable corporate tax rate, you may want to consider another form of business. 3. The company’s money is not your money: The separate legal entity brings with it a significant issue: It can be difficult for laypeople to understand. This is especially when the company is family owned, or both owned and managed by the same people. The company’s assets (including cash balances) belong to the company and not the shareholders. A Sdn Bhd cannot distribute its assets to its shareholders except via a dividend or capital repayment – which must be done in accordance with the Companies Act. If you are employed by the company or serve as a director, the company can pay you a salary or director’s fees. So it’s important to carefully consider in advance how you intend to draw income from the company, whether you can do so, and whether there are any consequences (e.g. tax) or restrictions (e.g. Companies Act) that you need to account for. Sole proprietor (a.k.a. the “One-Man Show”) Suffix: No suffix necessary Good for: Small businesses The Pros: 1. Easy to use: The sole proprietorship is very easy to set-up. Unlike a private company where you have to deal with various legal concepts and rules (e.g. directors, shareholders, share capital, registered office, constitution, board and shareholders' meetings, company secretaries, auditors, audited accounts, returns/filings, and MORE), the sole proprietorship is relatively straightforward. If you want a simple set-up (at least for a start), this might be the option for you. 2. Low Costs: The set-up and compliance costs for a sole proprietorship are relatively low compared to a private company. As discussed above, a private company must engage a company secretary and auditor - but there are no such requirements for the sole proprietor (although you may need the assistance of a professional in preparing and filing your tax returns). The Cons: 1. You are the company!: Although you can use a trading or business name (e.g. Awesome Trading & Co), strictly speaking, the sole proprietorship is not a separate entity. In other words, you are personally responsible for all contracts and transactions entered into by the sole proprietorship. Also, the sole proprietorship is not a separate entity, and will be dissolved upon your own passing, so it’s not great for running a family business. 2. Your personal assets are at risk: One of the most significant disadvantages of operating a sole proprietorship is that, the business’s liabilities are also your personal liabilities. It’s prudent to only take risks that you can stomach when carrying out your business as a sole proprietor – you may otherwise end up taking a hit on both your invested capital and your personal assets. 3. One-man show: You are the sole owner of the business and have to manage it alone. If you ever decide to bring in a business partner, you will have to transfer the business (including its assets and contracts) to a different business type that will be owned by you and your business partner. 4. Taxation: The net income earned from the business is deemed to be your personal income. Hence, unlike the private company which is subject to tax at the applicable corporate tax rate, the net income from the business will be subject to your personal income tax rate. Likewise, if your personal income tax rate is higher than the applicable corporate tax rate, you may want to consider a Sdn Bhd or Limited Liability Partnership (we’ll get to this one soon). Conventional partnership (a.k.a. Staple for Professionals) Suffix: No suffix necessary Good for: Professional services (lawyers, auditors, etc) The Pros: 1. Easier to use than a Sdn Bhd: Although not as simple as a sole proprietorship, a partnership is nonetheless relatively easier to set-up and operate for the same reason that we discussed above for sole proprietorships. 2. Low Costs: Again, the set-up and compliance costs for a conventional partnership are relatively lower compared to a private company. The Cons: 1. No separate legal entity: The conventional partnership is not recognised as a separate legal entity in law. We will see the implication of this below. 2. You are both responsible for each other’s decisions: Under section 7 of the Partnership Act 1961, the decisions of each partner in carrying out the usual operations of business will bind his partners as well. Further, section 11 of the Partnership Act says that every partner is jointly liable with all other partners for the debts and obligations of the partnership. What does this mean in simple English? If you enter into a partnership and your partner incurs debt on behalf of the partnership, you will be equally responsible for that debt. As the partnership is not a separate legal entity, your personal assets are at risk, just like your partners. So before entering into a partnership, select your business partners carefully... Limited liability partnership (LLP) (a.k.a “The Newbie”) Suffix: PLT Good for: Those who want a close alternative to Sdn Bhd while not risking their personal assets The Pros: 1. Best of both worlds: The LLP is a hybrid between a company and partnership, i.e. you’re effectively operating a conventional partnership while enjoying the benefits of running a Sdn Bhd – the separate legal entity and limited liability. If you want a close alternative to the “Sdn Bhd” without compromising on limited liability protection, the LLP is a good option to consider. 2. Still easier to use than a Sdn Bhd: The LLP has more compliance requirements than a conventional partnership, but is yet again relatively less complex compared to the Sdn Bhd. 3. Lower Costs: Again, the set-up and compliance costs for a LLP are relatively lower compared to a Sdn Bhd. The Cons: 1. Less popular, and therefore less recognised: The LLP was only introduced in Malaysia about 5 years ago. Because of this, you might find it a challenge to, firstly, introduce or explain your business entity and, secondly, convince others to do business with you (be it banks, suppliers, customers, or even regulators). Unless there are compelling reasons to use the LLP, it’s may be better to stick to the other better recognised types of businesses. According to statistics, there were approximately 1.2 million companies, 6.4 million businesses, and 12,000 LLPs registered as of 31 August 2017. So as you can see, even if we give some allowance for the fact that the LLP is new, the other forms of business are vastly more popular than the LLP. So just bear in mind that you might be in lonely company (pun intended) if you decide to use this option! Fit your type of business to your needs In summary, there is no “one-size-fits-all” solution when it comes to selecting a type of business. Each person’s circumstances may be unique and need to be taken into account. Having said this, some of the broad considerations or questions that you should ask when selecting a type of business are: Regulatory restrictions or requirements: Are there any legal requirements or restrictions as to the form of business that you must or cannot use for your type of business? Legal advantages/disadvantages: Does your business really only need your involvement? Or do you need a few partners to cover areas you don’t understand? Consider your individual standing and match your needs to the type of business. Taxation: Although taxation is one of the pros (or cons), it is listed as a separate consideration here as it can be a significant issue by itself. Do you pay more taxes under one type of business than another? Acceptance/recognition: Who are the parties you anticipate dealing with? Will they recognise or understand, and more importantly, want to transact with your business? The CCM’s (Companies Commission of Malaysia) and IRB’s (Inland Revenue Board) websites are good places to look-up more information on registration and taxation. In any case, you should reach out to the appropriate professional advisers (lawyer, company secretary, auditor, tax consultant, etc.) before making major decisions to avoid unexpected problems or pitfalls."
"Why do Malaysian lawyers and judges dress so funny? If you’ve seen American legal dramas or movies, the judges and lawyers in them dress in quite a simple manner – with lawyers showing up in a regular suit and tie. Contrast that with the lawyers and judges in the UK, who are renown to have more complex system of court dress involving wigs, robes or gowns and lots of frills. Since Malaysia got it’s legal system from the UK, we sort of also inherited their court dress, despite the weather here being less than ideal for multi-layered clothing. So let’s take a quick trip back to the middle ages to see how courtroom fashion evolved into its current-day look in the UK, and how these fashion choices influenced the look of Malaysian courtroom dressing today. Judges in the Middle Ages were super into colours The image above depicts a High Court Judge’s ceremonial attire in the UK. In the 1300s, this was the ‘in’ thing to wear in royal court (where kings and queens have their audiences). The materials that the robes were made of were originally grants (money given) from the Crown (essentially the government). These included ermine (fur from a kind of weasel), taffeta (fabric that’s made from silk or similar synthetic material) or straight up silk. Colours were violet for winter and green in summer, and scarlet for the top of the top judges. Green robes haven’t been seen since the 1500s, though. Advocates’ (lawyers who go to court) gowns had different colour schemes for different seasons and events. Green in the summer, violet in the winter, red for special occasions. By the mid 18th century, the 1635 guidelines were not adhered to as much as it was before. Judges begun to wear less formal version of the robe: a scarlet long robe, a scarlet casting-hood (a piece of cloth worn over the shoulders) and a black scarf for criminal trials and just a black silk robe for civil cases. Darker colours like grey and black were becoming increasingly favoured over brighter colours such as pink and violet. Ruffs (like in the image above) were also becoming less and less common. Instead, plain linen bands were worn. These bands are still worn now. The plain black gown worn by lawyers in the UK and some other Commonwealth countries was adopted in 1685 as a result of the bar going into mourning over the death of Charles II. What about the wigs that judges and lawyers wear? During the reign of Charles II (1660-1685), it was made common for polite society to be wearing wigs. Surprisingly, wigs were adopted in courts LATER as portraits of judges from the early 1680s still had judges sporting their hair. The era of George III (1760-1820) saw wigs beginning to go out of fashion. They were really only worn by bishops, coachmen and people in the legal profession. Full bottomed wigs, like in the image above, were only worn by judges until the 1780s. Smaller, less formal-looking wigs replaced their bigger and more formal cousins, that have frizzles on the sides and a pigtail at the back. Modern court dress in the UK is (comparatively) simple Style and colour of judges’ attires vary from court to court. Nowadays, in the Supreme Court of the UK, judges dress in ordinary business clothing. In criminal courts, judges continue to wear traditional court dress. The judges in the Court of Appeal wear black silk gowns and a short bench wig, like in the image above. High Court judges wear a scarlet robe with fur facings, a black scarf and girdle (waistband), and a scarlet casting-hood worn over the shoulder. Circuit judges in the County and Crown Courts wear a violet robe with lilac facings, introduced in 1919. The tippet (sash), red in the image above, signifies that they are dealing with a criminal case. In civil cases, a lilac tippet is worn instead. District judges in the County Court wear a new style of robes, with blue tabs in front of their collars that signify their rank, and a short wig. District Judges in the Magistrate’s Court wear ordinary business attire. The elaborate robes seen in the image above were worn by the Lord Chancellor, the Master of Rolls, Lords Justices of Appeal and the President of the Family Division. These black robes that were made of flowered damask (a fabric that can be silk, wool, linen, cotton, or synthetic fibres, with a pattern formed by weaving) with gold lace and decorations. Underneath these robes are an equally fancy suit. Swallow-tail coat, waistcoat, knee breaches, silk socks and leather shoes with buckles. Junior barristers and solicitors (lawyers) wear variants of the black gowns with slight differences. Junior barristers wear short wigs, and solicitors wear wigs in certain circumstances that are allowed under the Courts and Legal Services Act 1990. Similar to judges’ attires, the attire for lawyers now has evolved from more colourful fanfare to the current sombre, black-and-white affair. In Malaysia, court dress is same-same but different The styles of robes, wigs and colour schemes of the UK court dress visibly influenced our own court dress. Despite that, there are many notable differences. In the 1980s and before, Malaysian court officials did wear wigs. Since then, though, they now wear waterfall cravats (that white scarf thing in the image above), a court coat and black silk gown, that are reminiscent of the black silk gown of UK judges. Lawyers, on the other hand, wear a black robe with open sleeves, wing collar, and white bands at the neck (like in the feature image). Interestingly, lawyers in Malaysia NEVER wore wigs. Ceremonial dress for judicial office-bearers generally include a black robe with gold lace and a songkok, which are somewhat similar to the outfit that the Lord Chancellor used to wear in the UK. Also very curious is the “money bag” that’s attached to the back left shoulder of a lawyer’s robes. It’s triangular in shape, and it is said to be from a time when lawyers would not “lower themselves” to ask for money from their clients, and they would instead turn their backs to show the “money bag” and allow clients to quietly slip payments inside. It’s a cute story, but more likely, according to original English court dress makers Ede and Ravenscroft the piece of cloth dates back to 1685 as the remains of a traditional hood worn during a period of mourning, first placed to mourn the death of King Charles II but stayed on long after the mourning period was over. As to why our legal practitioners would go through all this trouble to have a set of clothing specially for the courts, the general idea is that it indicates a sense of respect for the court and represents the standards and dignity of the legal profession. And yes, lawyers have been told off before for not dressing properly."
"If Ah Long ads are illegal in Malaysia, why do we keep seeing them? Walking down a Malaysian city street, you might find a lot of good food places, blazing heat, people of all races… and dodgy advertisements plastered over every conceivable public surface. Unlicensed money lending is illegal, and prostitution is restricted in Malaysia, so those ads are almost certainly illegal, right? Even if the services advertised were legal, they’re still vandalising public property! You might have wondered before: if these ads were illegal, why are there still so many around our cities? Turns out, these ads about “volcano massages”, “pinjaman berlesen”, and various promotions being this prevalent is more than what the authorities bargained for. If they’re illegal, why can’t the authorities stop them? The local authorities are usually the ones stuck with removing these illegal advertisements. But what a lot of people don’t realize is that the sheer amount of ads proves difficult to deal with. To illustrate - Petaling Jaya mayor Datuk Mohd Azizi Moh Zain said 61,044 illegal ads were removed from the city from 1st January to 31st July 2017. The situation is even worse in Kuala Lumpur, where 1.3 million illegal ads were removed in the year 2015. Apparently the maximum fine for having unlicensed advertisements in KL sits at a mere RM2,000, so it’s not much of a deterrent seeing how much the advertisements bring in. This is why the DBKL Licensing and Petty Traders Management Department wants to raise the maximum fine to RM50,000. “Even the cost of printing the materials is cheap, so the offenders do not feel the pinch when the advertisements are removed. They will just reprint and put them up again.” - Datuk Pardip Kumar Kukreja, member of Pemudah (Special Taskforce to Facilitate Businesses), in interview with The Star So there are laws against putting the ads up, but they’re not that effective at stopping the illegal ads. Then, are there any laws against printing the advertisements so they can be stopped before the ads are put up? No, not really. But DBKL has been working with the Malaysian Communications and Multimedia Commission (MCMC) to bar the phone numbers displayed on the ads. This helps, but there’s also the fact that these are just dummy numbers. “I was informed that these mobile numbers are used to screen the callers and the genuine prospects will be contacted from a different line… We have also caught individuals putting up stickers and have fined them. But they are just the ‘small fish’ hired to paste the stickers,” - Datuk Mohd Azizi Mohd Zain, Petaling Jaya mayor in interview with The Star That being said… There are laws that tell us how to put up ads legally There’s actually an oddly specific law in Section 11(2) of the Printing Presses and Publications Act 1984, which states that all publications need to have the name and address of the printer and publisher. “No person shall publish, reproduce, sell, circulate or distribute, or offer to publish, reproduce, sell, circulate or distribute, any publication which does not have the name and address of the printer and publisher, or in the case of an audio recording, the name and address of the producer, conspicuously printed on the cover or container and any person who acts in contravention of this section shall be guilty of an offence...” The penalty for failing to do so is up to 1 year of jail and/or up to RM5,000 in fines. It’s been used against pirated CDs as well as for arresting the Bersih chairperson, Maria Chin Abdullah because Bersih was handing out leaflets without a name and address. #BERSIH #Sabah team protesting and showing solidarity outside Kota Marudu station. #BebasMariaChin pic.twitter.com/JIYRKZUu9U — BERSIH 2.0 (@bersih2) October 29, 2016 While that law is one thing you can look out for, the way you go about legalizing your advertisements largely depends upon your local council’s laws. We’re using Kuala Lumpur’s Advertisements (Federal Territory) By-laws 1982 as an example (no online copy available), but it only has effect in KL so check with your local council if you want to put ads up in public spaces. Some of the requirements under the KL Advertisements by-laws are: The language must be in the Malay language and can contain any other language The Malay words must be more prominent on the ad Applying to the Commissioner of the City of Kuala Lumpur for a license Two copies of a sketch of the ad showing full details A plan showing the location and the structure the ad will be shown on Certificate of business registration or any other related documents If you plan to put ads up in public places, get them licensed Technically speaking, it’s not just Ah Long and “volcano massage” ads that are illegal without a license, any kind of signage we put up on the streets for weddings and funerals might be illegal as well without the local council’s permission. A lot of the illegal ads in KL are put up illegally by private businesses and exhibition organizers. DBKL has stated that they used to send out 2 warning notices before issuing a fine, but because the fine hasn't been effective, they want to revoke business licenses instead. If you’re planning an ad campaign or want to put up signs in public spaces for your visitors, it’s best to make sure everything checks out legally, so make sure to check with your local council and get your ads licensed!"
"5 unresolved legal issues Malaysia can put on the 2018 bucket list For the past few years, Youtube posts year-end wrap-up video called Youtube Rewind – a sort of recap on what’s been hot and trending on the site in the past year. You can click on the image below to watch this year’s Rewind: We at Asklegal thought of doing something similar; an Asklegal Rewind, if you will – where we quickly recap 5 unresolved legal issues in Malaysia in the past year. These issues didn’t necessarily crop up in 2017, but they’re still unresolved as of December 31st 2017. They can be either ongoing court cases, loopholes in the law or both. In addition, we want to say that these issues are definitely NOT unsolvable. In fact, 3 out of 5 of these are actually on their way to getting a legal solution. Without further ado, let’s dive in. 1. Unilateral Child Conversion In Malaysia, a parent who has converted to Islam, can convert their child who is a minor to Islam as well. This is provided under article 12 of the Federal Constitution: (4) For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian. What this means is that one of the two parents of a child or children, if they convert to Islam, they can convert one or more of their children without needing to ask for the other parent’s permission or consent. Religious complications aside, one possible legal complication that arises from this is that it creates a gap in the legal system where one parent may have an advantage in a custody battle for the child. The most recent case involves Indira Ghandi’s family, but hers is not the only one. Earlier this year, in August, a proposed amendment to the Law Reform (Marriage and Divorce) (Amendment) Bill 2017 was not included in the resulting legislation (law). The proposed change was to add section 88A into the Act to make it so that when a parent converted to Islam, the religion of the children would remain the same unless both parents agreed to the conversion of their children. The proposed change never materialized, and so far the problem hasn’t been solved. For further background and the effect the current situation has on a family, check out this article from our friends at Cilisos. 2. Stateless Children Very simply, a person is referred to as “stateless” when they are not recognized as being a citizen of any country. There are various circumstances on how a child can be stateless: they could have been abandoned at birth, some are adopted by cannot find their birth parents, others were born to a foreign mother who did not register their marriage to their Malaysian spouse. It doesn’t sound immediately life-threatening, but for a stateless child in Malaysia, there are various problems that escalate in severity as they progress through life. They risk not being able to receive any education or healthcare (both of which usually requires a MyKad), and that results in more problems down the road, potentially not getting employed or even having their own children be stateless. It’s a vicious cycle. The most conventional way to try to challenge the National Registration’s refusal to acknowledge Malaysian-born children as citizens is to go to court. Unsuccessful attempts will result in an uncertain future for these individuals. Now they will have to try to rely on article 15A of the Federal Constitution, where the federal government may register any person under 21 years old as a citizen in special circumstances as it deems fit. This is up to the discretion of the Home Ministry. Alternatively, they may apply for the status of permanent residence, but just like above, this is subject to the Home Ministry’s discretion. Currently, there is no actual solution for this problem. 3. Stalking We kinda know what stalking is (especially you jealous exes out there), but most of us didn’t know that no laws on stalking exist in Malaysia. So if you’re followed by a creepy dude in the middle of the night when you’re out getting a snack from 7-11, they’re not technically committing a crime as there is no direct law saying what they’re doing is illegal. There were talks of changing the Penal Code to include stalking as an offence as a short term solution, while a separate anti-stalking law can be looked at in the long term. As of now, though, it is only an offence when there is “touching” involved, which is provided under section 350 in the Penal Code, at the very least: Whoever intentionally uses force to any person, without that person’s consent, in order to cause the committing of any offence, or intending by the use of such force illegally to cause, or knowing it to be likely that by the use of such force he will illegally cause injury, fear, or annoyance to the person to whom the force is used, is said to use criminal force to that other. The women, family and community development minister hinted in July that an amendment to the Domestic Violence Act would criminalize the act of stalking, but so far there’s nothing confirmed yet. 4. Voyeurism Voyeurism might not be a familiar term to many, but “upskirt pictures” probably is. It’s a terrible thing people do, and very, very criminal in many other countries. In Malaysia, there are no laws for hidden cameras that secretly record or take pictures of people. An example is in this incident where a dude was taking upskirt videos of girls at Mid Valley Megamall. It is POSSIBLE to sue the person who set up the hidden camera, but since there were conflicting court decisions in the past, there are no guarantees that the victim will win the case. You can always report these incidents to the police, but again, there are no guarantees that anything can or will be done. You can read more about this in our in-depth coverage of the subject. 5. Sexual harassment Amazingly, sexual harassment is technically not a crime in Malaysia. It is only really discussed and defined in the context of the workplace, in section 2 of the Employment Act 1955: ―sexual harassment means any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment; Plus, even within the workplace, sexual harassment is handled internally, which means the company itself handles the issue. The employer must, according to the Employment Act, inquire into the issue, and they have the discretion to take action against the harasser. Any actions taken might not effect justice on the victim, though. Usually the complaint procedures take a very long time (known to have lasted up to 112 days), and there are no uniformity in handling these matters. There are upsides: there are recent cases where the courts have allowed victims to sue their harassers, and you can file a police report against the harasser. This issue has been covered very thoroughly in this article! Here’s to a better year (legally) The issues above are not the only unresolved legal issues by any means, but these were pretty big in 2017. Aside from these, there’s also the proposed regulations on cryptocurrency like Bitcoin, the upcoming regulations on hiring maids yourself, and the a possible resolution to the conundrum of the addition of “bin/binti Abdullah” to Muslim children born out of wedlock. These situations of unresolved legal issues are not uncommon, and laws are constantly being changed and, more often than not, improved upon because – like everything else – laws can go out of date as social norms and technology progresses. Not everything is bad news, though. We’ve also made some great progress in the legal scene. The amendment to the Bankruptcy Act this year brought numerous positive changes that reflects the current economy more accurately. The Animal Welfare Act 2015 also came into force this year (it wasn’t enforced before), and it provides even more protection for animals on top of the existing Animal Act 1953. Protection for children has also been ramped up this year with the introduction of the Sexual Offences Against Children Act 2017. The Act covers offences ranging from child pornography to actual physical sexual assault on a child. Our government has also scrapped the mandatory death sentence for drug trafficking offences. This can be seen as an improvement because there are complications with drug mules, and the fact that the death penalty doesn’t really work as a deterrent for these crimes. On that note, we have lots to look forward to in 2018. Have a happy new year, folks."
"Are Uber and Grab services legal in Malaysia?  When something new is introduced, oftentimes there won’t be regulation put out for it immediately. This has also been the case for the very popular e-hailing services Grab and Uber. Let’s get right into it with a super straightforward question: What’s the difference between Grab/Uber and traditional taxis? No, we’re not talking about quality of service and all that stuff. The key difference is in the employer-employee relationship. Taxis: There is an obvious employer-employee relationship. The taxi company is the employer, and the drivers their employees. Uber/Grab: There is no exclusive contract that the drivers sign with the companies, it is not clear whether the drivers are considered employees, legally. In the US, there were two cases of sexual assault caused by Uber drivers. The court was posed with the question of whether these drivers were considered as employees or independent contractors of Uber. The case was settled out of court before trial, so nothing came of that. Hypothetically though, if the drivers were to be considered as contractors of Uber, Uber would ONLY be responsible for what the drivers do when they’re on the job. Once the ride ends, they’ve technically washed their hands of the matter. That is only one of the legal issues that is in the pot(hole) of legal problems concerning Uber/Grab, and a similar concern was reflected in Malaysia when a woman suffered a miscarriage after bring robbed by her Uber driver. So, if you’re wondering if anything has been done to bridge this gap in the law, the good news that it’s been (kinda) resolved for quite some time... In July 2017, Grab and Uber became “legal” in Malaysia Prior to this year, Uber/Grab drivers were technically working illegally as the Land Public Transport Act 2010 considered it an offense to operate a public service vehicle without having an operating license, while driving a private vehicle (which are what Uber/Grab drivers do). Section 16(1) of the Land Public Transport Act 2010 – Requirement for operator’s licence: Subject to sections 194 and 195, no person shall operate or provide a public service vehicle service using a class of public service vehicles unless he holds an operator’s licence issued under this Chapter. We use the word “technically” because these services didn’t exist back when the law was written, so it may arguably be more accurate to say that the services operated within a legal grey area. In response to this, in July 2017, the government followed our neighbours in Singapore, Philippines and Indonesia in changing the law to allow e-hailing drivers to operate legally. These changes were made to the Land Public Transport Act 2010 and the Commercial Vehicles Licensing Board Act 1987 and approved by the Malaysian Parliament. However, they have yet to be gazetted, meaning that – for the time being – these changes have not come into effect. Till then though, here are some of the changes we can look forward to: 1. E-hailing companies need to have license(s) Specifically, the operators (not the individual drivers) have to obtain “intermediation business license(s)”. Once this license is obtained, the vehicles will be classified as public service vehicles. On the driver’s side, there are plans for drivers to be issued with a digital driver’s card which will be issued when both the driver and their vehicle passes some mandatory tests to ensure both are road-worthy. Section 22(3) of the Land Public Transport Act 2010 holds that operators of ride-sharing services who run their businesses without the licence can be fined up to RM500,000, face a maximum jail term of three years, or both, upon conviction. Those who fail to comply with the licence conditions can be fined between RM1,000 and RM200,000, or sentenced up to two years in jail. 2. You don’t have to fear violence or harassment from taxi drivers any more We all remember that there was a period of time where cabbies harassed Uber/Grab drivers and their passengers. The drivers were getting interrogated at various locations and threatened with damage to their vehicle. Even some regular motorists picking up friends were roped into the mess when they were suspected of being Uber/Grab drivers. No anymore! Section 200 of the LPTA states (in part): Any person who— (a) behaves in a disorderly or offensive manner or commits any nuisance on a railway coach, railway premises, public service vehicle or tourism vehicle; or (b) assaults, hinders or obstructs a licensee or licensed operator or an employee of the licensee or licensed operator, including a railway official, in the execution of his duties, commits an offence… Not just taxi drivers, but anyone who assaults, hinders or obstructs Uber/Grab drivers and (in turn) their passengers will be getting into trouble. Offenders can be slapped with a fine of up to RM1,000 or a prison sentence of up to 3 months, or both. 3. Passengers will now be insured There are two good things about this. Firstly, because Uber/Grab vehicles were private vehicles before the change in law, they were only insured with regular car insurance. Now, the government is planning to have Uber/Grab drivers to take up “passenger insurance”, the ones that traditional taxi drivers get. These ones cover losses and injuries from accidents or robberies. The second thing is that this could potentially stop insurance fraud as alleged by some groups. Apparently, Uber/Grab drivers would have personal car insurance, and they can’t make a claim if the car has been used for commercial purposes. As a result, many drivers would intentionally hold back from disclosing the fact that they used their car as an Uber/Grab car. Section 150(1) of the Insurance Act 1996 gives us: Before a contract of insurance is entered into, a proposer shall disclose to the licensed insurer a matter that— (a) he knows to be relevant to the decision of the licensed insurer on whether to accept the risk or not and the rates and terms to be applied; This means drivers are potentially violating the law by not disclosing that their cars are used for Uber/Grab services, so “Passenger insurance” may provide a solution in this regard. 4. Background checks will be done No one wants to hop into a car with the fear that the driver may rob or assault them. That’s gonna fixed by our Land Public Transport Commission (SPAD) because they’re doing a background check on drivers to see if they have criminal records and if they’re safe drivers! This is similar to the mandatory checks on taxi drivers. “All rules and regulations imposed on conventional taxis will be applied to the e-hailing drivers as well and this includes regulations on medical check-ups, periodic vehicle inspections, insurance requirements and drivers’ identification card” – Datuk Seri Nancy Shukri, as quoted by New Straits Times. 5. Avenues for complaint will be available Previously, SPAD (Peninsula Malaysia) and CVLB (East Malaysia) didn’t consider Uber/Grab cars to be under their purview. Now that the law is amended, you can direct your complaints to them. There’s a few ways you can do that. There’s the feedback form you can check out here, you can ring them up at 1800 88 SPAD(7723) or email them at emailaduan@spad.gov.my. All these upcoming changes in the law will (hopefully) make Uber/Grab rides safer for passengers and resolve the “legal limbo” that the e-hailing companies were previously in."
"What to do if you can't afford a lawyer in Malaysia? Have you ever been in that situation where you wanted to sue someone because they broke the contract that you guys made but you didn’t have enough money to hire a lawyer? Or maybe you paid thousands for a plasma TV and it came damaged but the shop refused to refund you for it and you couldn’t sue them? Maybe you were even hauled off to the police station as a suspect and you wanted a lawyer to advice you on your rights but you didn’t know if you could afford to pay for one. If you have ever been in the situations above or any other situation where you needed a lawyer but couldn’t afford one, here’s the good news... Malaysia has three kinds of legal aid bodies to choose from The first thing you need to know is that legal aid is divided into: Legal advice (which is free from all three legal aid providers and covers all areas of the law) – legal advice is when you receive advice from lawyers regarding the law. This may or may not proceed to court Legal representation (which is only provided for certain areas of law and is subsidised) – legal representation is when your case goes to court and you appoint a lawyer to argue on your behalf Both these forms of legal aid are provided by three different legal aid bodies in Malaysia. The first body is the the Legal Aid Department that is funded by the government and handles certain criminal and civil cases. The second is the Bar Council and they have offices across the different states of Malaysia. The Bar Council is privately funded by members of the Bar (lawyers) and provide legal aid for areas of family law, employment law and criminal cases. The third body is specifically for criminal cases only. This is known as the National Legal Aid Foundation (commonly known as YBGK) and it started operating in 2012 to cover the gap left by the Legal Aid Department and the Bar Council. As a quick note, civil cases are when you sue another person for things like a breach of contract, child custody, etc. Criminal cases, on the other hand, are when you have been charged with committing a crime and it is an action the government brings against you. Bear in mind that legal aid is different from pro bono services. Legal aid is provided through the three bodies mentioned above by their panel lawyers while pro bono work is taken on by individual lawyers at their own expense. In short, legal aid is an institution (sort of) and pro bono is through individuals. Now that you know that there are 3 kinds of legal aid services, let’s get down to the more important things like how do you qualify for it and what do you have to do. We will cover these issues under separate headers for each legal aid centre. However, there is one super important thing you will be seeing throughout the article and that is... You have to pass two tests in order to qualify for legal aid All three legal aid providers employs what is called the means test. This means test is essentially to find out if your financial capabilities fall within the necessary boundaries before legal aid is granted to you. The Legal Aid Department allows you to try out an online test to see if your financial capacity makes you eligible for legal aid but don’t be disheartened if the results show that you don’t qualify for legal aid because the results from the online test are not considered final. As for the Bar Council and YBGK, you have to walk in to their offices and fill out a form for them to assess your financial capabilities. The second test is only done by the Legal Aid Department and the Bar Council and it is known as the merits test. The merits test is basically where the legal aid bodies weigh the merits of your case and see whether or not there are reasonable grounds to grant you legal aid. It basically means that if you are approaching the legal aid bodies for help in a frivolous claim, you wouldn’t be granted help. The YBGK doesn’t have a merits test as it is a right for you to be represented by a lawyer in criminal cases if you choose to be represented. Legal Aid Department (“LAD”) This legal aid comes from the Legal Aid Act 1971 (“LAA 1971”) and provides legal services for Malaysians at a subsidised rate. This means that you would still have to pay a certain amount but it would be considerably cheaper than engaging a lawyer of your own. The type of cases which are handled by the Legal Aid Department (“LAD”) can be found in the Second and Third Schedule of the LAA 1971. The Second Schedule deal with criminal cases while the Third Schedule lists down all the civil cases that the Department handles. As a general rule, the LAD only handles criminal cases after the person has admitted to committing the crime and only helps the person to mitigate whatever sentences they may receive. There are two exceptions to this general rule: Where offences have been committed under the Child Act 2001 Where the offence is a minor offence under the Minor Offences Act 1955 An example of how the general rule works is this: Ali has been charged with theft and he admits to committing the crime. The judge has sentenced Ali to 7 years in jail but Ali is the sole breadwinner for his family. Ali can get legal aid to help mitigate his sentence to a lighter one. An example of the exceptions to the general rule: Ali has been charged with an offence under the Child Act/Minor Offences. Ali pleads not guilty to the offence. Ali would be able to receive legal aid despite not pleading guilty and going to trial. The list for civil cases is as follows: Family cases Padi cultivators’ tenancy (we googled – this falls under the Padi Cultivators (Control of Rent and Security of Tenure) Act 1967 and is about renting paddy fields) Small estate (distribution) Road accidents Moneylenders Hire-purchase Tenancy matters Probate and letters of administration Adoption Consumer claims Aside from covering civil and criminal cases, the LAD also provides help for Syariah cases (civil only) and provides mediation services for both civil and Syariah issues. An important point to note is that even if your case is beyond the jurisdiction of the LAD, the LAA 1971 allows you to make an application to the Director General to request for an exemption. Recently in 2017, the government came up with an amendment to the LAA 1971 which introduced the legal companion service. This legal companion service is meant to provide help and comfort to the guardian of a child who has been a victim of a crime. This legal companion will advice the guardian of the child, accompany them during court proceedings, and at times, speak on their behalf. You can read up on the amendments here. As to how to register for legal aid, you would have to walk into any of their branches (you can find the full list here) and register for it by filling up some forms and and paying the registration fee of RM10. Another thing you need to note is that because this is merely a subsidised service, you may be required to pay a certain sum to the LAD. This is on top of the RM10 you would have to pay for registration and the amount payable depends on your yearly salary as well as your individual case. As you can see from the image below, if you are earning less than RM30,000 a year, your legal aid is free. The next provider of legal aid, the Bar Council of Malaysia operates slightly differently… Bar Council (“LAC”) The Bar Council’s legal aid (“LAC”) only covers cases relating to family law, employment law, Syariah cases, and criminal cases. The first key difference is that unlike the LAD, the LAC also covers criminal cases for when the accused pleads not guilty (he claims trial). Let’s tweak our Ali example given above: Ali has been charged with theft and he claims that he did not commit the crime. Ali is said to have claimed trial by pleading not guilty. Ali can get legal aid to help prove his innocence. Another thing to note is that you do not have to pay for legal fees under the LAC. It is absolutely free of charge and even covers documented and undocumented foreigners (unlike the LAD which is for Malaysians only). You can read more about the differences between the LAD and the LAC here. However, even though the LAC does not charge a single cent for your legal fee, you would have to pay for filing fees in court. Filing fees are not part of the legal fees that lawyers usually collect but they are part of the court fees that you would have to pay. The filing fees are waived if you obtain legal aid through the LAD but not if you obtain legal aid through the Bar. If you win the case, the court might allow you to claim for the filing fees that you have paid for so it is important to keep a proper record of it. If you are getting a little confused as to what you have to pay for, let’s break it down for you guys: Legal fees (to the lawyer): LAD - Yes LAC – No Filing fees (to the court): LAD - No LAC – Yes If you are curious, the legal aid provided by the Bar Council is fully funded by lawyers and you can find a list of their offices here. You can also read more about the programmes that they offer here. As mentioned above, there is a third legal aid body which is the... National Legal Aid Foundation (“YBGK”) The YBGK only covers criminal cases (including Syariah criminal cases) for all Malaysians and is funded by the government but managed by the Bar Council. This means that in Peninsular Malaysia, the YBGK operates through the LAC and in Sabah and Sarawak, they work through the LAD and the Sabah Law Association/Advocates Association of Sarawak. You can find the full list of their centres here. As for payment, if you earn less than RM25,000 per year, the legal aid is provided free of charge. However, if you earn between RM25,000 – RM36,000, you would be charged a rate that is determined by the YBGK’s Board of Directors. The legal aid provided by YBGK will cover all stages of criminal cases e.g arrest, remand, bail application, mitigation. Any kind of criminal cases will be given legal representation (if you pass the means test) except for crimes that carry the death sentence (such as murder). At the end of the day, Don’t be afraid to reach out for help As mentioned above, all three forms of legal aid agencies provide free legal advice so if you are ever in a pickle, feel free to contact them at the numbers below: Legal Aid Department – 03 8885 1000 Bar Council – 03 2072 2051 YBGK – 1-800-88-9245 It would also be good to call them prior to walking in so that you can ask them what kind of documents you are required to bring to save yourself from the extra trip."
"5 consumer rights you didn't know you had in Malaysia In this highly capitalist society, everyone is a consumer (unless you have very strong socialist tendencies, komrads). Because of this high volume of consumption, we are protected by the government in the form of laws, thankfully. The Consumer Protection Act 1999 (CPA) was enacted to provide greater protection for consumers, and the rights provided under this Act cannot be taken away from you. This is given under section 6 of the CPA, which says that the Act will have power despite any contract that tries to exclude it. Any manufacturer or supplier that tries to exclude anything from the CPA can be fined, jailed, or both! Looking at the CPA, what are some of the rights that you have but might not know as consumers? 1. If you were promised free gifts, they MUST be given to you Free gifts with purchases are pretty common in the market, whether its offered by the supermarket/store or the manufacturers themselves. It’s especially common with toothpaste purchases, it seems. Over the years the purchase of toothpaste has been accompanied by free bowls, plates, cutleries, and mugs. Did you know that if these free gifts are advertised, you are entitled to them? This is provided under section 14(1) of the CPA. Section 14(1) of the CPA: (1) No person shall offer any gift, prize or other free item - (a) with the intention of not providing it; or (b) with the intention of not providing it as offered. The promisor of the gift has to also give the gift as it was offered. If they offered a free cup, and they want to now give you a free plate, it’s a no-go unless you agree to accepting the plate as a substitute gift. If a free gift is advertised, but the price of the actual product you wanna buy is jacked up, or the quality of the product is lowered, to cover for the cost of the gifts, that’s not allowed either under section 14(2). But there’s a catch. There’s always a catch with free gifts. Section 14(3) allows for the store or the manufacturer to impose reasonable conditions on the offer of gifts. This is where you will see that small asterisk (*) and it says that the gift is “available while stocks last”. It’s reasonable because they won’t have an infinite supply of the gift. 2. You can expect goods to be of a reasonable quality We sometimes take it for granted that stuff we buy are of a certain level of quality. What we don’t realize is sometimes manufacturers can be so cheap that the end product comes out unusable. Imagine buying a USB cable to charge your phone, and finding out later that it doesn’t work. The CPA provides for these sort of situations as well. Section 32 of the CPA: (1) Where goods are supplied to a consumer there shall be implied a guarantee that the goods are of acceptable quality. Goods must be of acceptable quality. What is acceptable quality, really? The criteria for goods of acceptable quality are listed in sections 32(2)(a) and (b). It’s quite a long list, and among the criteria are: fit for all the purposes for which goods of the type in question are commonly supplied acceptable in appearance and finish durable safe free from minor defects The list above is not exhaustive by any means. There are also exceptions for when it is okay for items that are NOT of acceptable quality to be sold to consumers. If any defects in the goods are pointed out to the consumer before there is an agreement to sell it, then the consumer cannot complain about it. For example, if an iPhone store wants to sell you an iPhone 8, and they say “Hey, look, there’s a small dent on the corner of the phone, is that alright?”, then they wouldn’t have broken the law. 3. Sample cannot be different from the actual product Showing sample units of products is a very common marketing technique used widely. Supermarkets have samples of food and drinks, electric appliance stores have samples of various products, and phone stores have samples of… phones. It only makes sense that the actual product would correspond with its sample. Section 35 of the CPA: (1) The following guarantees shall be implied where goods are supplied to a consumer by reference to a sample or demonstration model: (a) that the goods correspond with the sample or demonstration model in quality; and (b) that the consumer will have a reasonable opportunity to compare the goods with the sample or demonstration model. Consumers must also be given a chance to compare between the sample or display unit and see if there are any discrepancies. If the goods come with a description, for example: The new iPhone 8 comes with 16 GB RAM, then the product must have the corresponding amount of RAM. 4. Manufacturer must honor express guarantees/warranties Section 38 of the CPA guarantees your manufacturer guarantee (see what we did there?), but what is manufacturer’s guarantee? It’s what is commonly known to us as the warranty of a product. Let’s take a look at section 38. Section 38 of the CPA: (1) An express guarantee given by a manufacturer of goods which are supplied to a consumer shall bind the manufacturer to the extent specified in subsections (2), (3) and (4). An express guarantee given by a manufacturer is binding. That means whatever the warranty that was given to the consumer, for example if your phone malfunctions within a certain amount of time, usually 1 year, the manufacturer will either make a 1 to 1 exchange, or repair it for free, must be honoured. You may have notice that many items come with a little slip of paper, or a little booklet that sets out the conditions of said guarantee. This paper or booklet binds the manufacturer to obey the terms of the guarantee… unless it was given without their authority, like say if it was stolen. Section 38(5) does define the scope of “express guarantee” a little more specifically. What does an express guarantee cover? It covers: quality, performance or characteristics of goods services provided regarding the goods supply of parts for goods future availability of goods, if such a term was made return of money or other considerations should the goods not meet the standards set by the guarantor The scope is pretty comprehensive, covering things from quality to future availability of goods. Another plus side for consumers is: if the manufacturer messes up with their product, you are entitled to a refund or other considerations (a replacement product, et cetera). 5. You can get a refund for rejected items In the CPA, the refunding of money or a replacement of product is covered under sections 45 and 46 of the CPA. Usually, a consumer has to reject the goods to get a refund or a replacement. It wouldn’t make sense if you want to keep the product, and want a refund or replacement. Section 45(1) of the CPA: (1) The consumer shall exercise the right conferred under this Act to reject goods by notifying the supplier of the decision to reject the goods and of the ground or grounds for the rejection. This means a consumer can reject goods if they tell the supplier that they want to do so, and why they want to do so. A simple example is if you’ve bought an article of clothing that is the wrong size. If the store allows it, you can just bring it back with the tags and receipt, and exchange it for the right size. What if lets say, you buy an electronic gate from a gate store, have it installed and later you find out that it doesn’t work? Do you have to remove the gate from where it was installed, stuff it into your sedan and drive it back to the store? It’s crazy because you don’t have to tools to remove the gate out of it’s place, and you’re not a professional. You don’t have to, according to section 45(2)(b). The seller will have to come and uninstall it at their own expense. Onto the actual subject of a refund or replacement. This is provided under section 46(1). Section 46(1) of the CPA: (1) Where the consumer exercises the right to reject goods conferred under this Act, the consumer may choose to have - (a) a refund of any money paid or other consideration provided by the consumer in respect of the rejected goods; or (b) goods of the same type and of similar value to replace the rejected goods where such goods are reasonably available to the supplier as part of the stock of the supplier, and the supplier shall make provision accordingly To simplify, if you’ve rejected the goods, you can choose to either get a refund of money, other consideration (maybe a guarantee of free repairs in the future) or an exchange of the same type of goods that is similar in value. You can’t buy a Huawei and exchange it for an iPhone, because the values are drastically different. For more in-depth information on no refund policies, we have written an article here! It is good to know your rights as a consumer Most consumers want to get what they pay for, and what better way to start doing that than by researching into what rights you have as Malaysian consumers? The Ministry of Domestic Trade, Co-operatives and Consumerism has a nifty website where you can check out their consumers section for more information. You can also make complaints related to consumer issues to them, at 1-800-886-800 or through their online form here. Certain areas have their own consumer organizations, and they have websites, like this one!"
"Is Bitcoin legal in Malaysia? Over the last few years, you might have heard a lot of Bitcoins and cryptocurrencies. The news is usually about the price of Bitcoin hitting new highs, but there are also news about hacks where a lot of Bitcoin was stolen. If you didn’t already know, Bitcoin is a “cryptocurrency”, which is basically a digital currency - just like the Ringgit, except it only exists on a computer. You can find the finer details here if you’re interested. We won’t go into a discussion about the features of Bitcoin, so we’ll leave it at that a lot of people like the advantages Bitcoin offers over conventional currency like the Ringgit. Bitcoin has gained so much traction that some of our local shops have started accepting it, such as this Kelantanese nasi kerabu stall, and these noodle stalls in Puchong, Selangor. You might not have even questioned whether Bitcoin is legal in Malaysia, until some other countries started banning it. Our own Bank Negara was also deciding on how to treat Bitcoin in October 2017 (we’ll get to their actual decision later). But in the first place, is Bitcoin legal or not? Bitcoin is not recognized as “money” in Malaysia One of the key features of Bitcoin is that it’s not issued by the Central Bank of any country. The thing is, this feature is exactly what makes Bitcoin not recognized as money in Malaysia (or “not legal tender” as the law puts it). In Malaysia, what’s recognized as currency is controlled by the Central Bank of Malaysia Act 2009 (CBMA 2009), and Part III of the Central Bank of Malaysia Act 1958 (CBMA 1958). Under Section 20 of the CBMA 1958, only Bank Negara has the right to issue currency in Malaysia - any currencies issued by other people are illegal. Section 20 of the Central Bank of Malaysia Act 1958 “The Bank shall have the sole right of issuing notes and coin throughout Malaysia and neither the Government nor the Government of any State nor any public authority, or banking institution or other financial institution, or other institution or persons shall issue currency notes, bank notes or coin or any documents or tokens payable to bearer on demand being documental tokens which, in the opinion of the Bank, are likely to pass as legal tender.” “Legal tender” means money that’s accepted for payment in Malaysia under Section 24 of the CBMA 1958. And since Section 18 defines the currency of Malaysia as the Ringgit, it’s not just Bitcoin, all digital currencies are not recognized as legal money in Malaysia. Is Bitcoin recognized as a “foreign currency” then? Cryptocurrencies like Bitcoin could still be recognized as a “foreign currency” under our CBMA 2009. Section 2(1) defines a “foreign currency” as: “...currency notes or coins which are legal tender in any country, territory or place outside Malaysia…” It could be argued that since Japan recognizes Bitcoin as money, it could be considered a “foreign currency”. Then again, all foreign currencies, whether the US Dollar, UK Pound, or Indian Rupee, are not “legal tender” in Malaysia. While we see currency exchange at banks and licensed money changers as part of everyday life, you won’t see someone trying to pay the mamak shop in US Dollars - it’s not accepted as money in Malaysia. Even if the mamak shop accepts US Dollars, it’s a private arrangement between you and the mamak. In the end, the shop will still have to convert it into Ringgit to get his money’s worth. Bitcoin can be a ‘currency’ under the Contracts Act So up until now, Bitcoin is still not recognized as a legal tender. But a recent 2020 court case has said that Bitcoins actually do have some value...even if they still can’t be considered to be money in Malaysia. In Luno Pte Ltd & Another v Robert Ong Thien Cheng, the case was regarding a man who owed some Bitcoins to a company. Here are the brief facts: Mr. Robert deposited some Bitcoins into an account with Luno, a cryptocurrency company He later asked them to transfer it back to him. They ended up accidentally transferring double the amount They informed Mr. Robert to transfer the excess back to them, and he agreed to do so He didn’t send the extra Bitcoins back, and that’s why the case went to court In the Shah Alam Sessions Court, Mr. Robert argued that he didn’t need to pay the excess Bitcoins because...Bitcoins were illegal in Malaysia. The court said that Bitcoins were not illegal, and so, this could not be a reason to not pay Luno back. First and foremost, whilst cryptocurrency is not recognised as legal tender in Malaysia, this does not mean that the Plaintiffs’ operation is illegal. - Judges in the Shah Alam Session Court The case was decided in favour of Luno, but Mr. Robert appealed the decision and they went to the Shah Alam High Court. There, the judges referred to Section 73 of the Contracts Act 1950, which talks about the repayment of debts: A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it. Mr. Robert argued that Bitcoins could not come under the definition of ‘anything’ in the Section above and so, he didn’t need to pay Luno back. However, the court disagreed with him and said that Bitcoins would come under the definition. They also said that it was important to keep up with the current times and that the law should reflect and include changes in technology. This was a landmark case which decided that even though Bitcoins and other cryptocurrencies may not be legal tender, they can be considered as commodities. Digital currency exchanges need to report their activities Thus far, Bank Negara has not mentioned anySo plans to legalize nor regulate digital currencies either, but Bank Negara is putting reporting obligations on the exchanges under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA). Bitcoin is not controlled by a central authority (like Bank Negara), and transactions are encrypted into the blockchain technology. You and I could exchange Bitcoins for any reason imaginable, and no one would ever know. This is where dealings like drug trafficking, money laundering, and even funding terrorism could take place. In fact, Bitcoin was used as the currency on the Silk Road - a since busted internet marketplace where a lot of illegal drug sales were carried out. So because of this, under the AMLA, digital currency exchanges will have to report any transaction that goes through them to Bank Negara, which includes the following information: The identity and address of both parties to the transactions The identity of the accounts affected by the transactions The type of transaction The date, time, and amount of the transaction These regulations have since taken effect from 27th February 2018 through this regulation issued by Bank Negara. According to Section 14 of the AMLA, digital currency exchanges will also have to promptly report any transaction that is suspicious or might be linked to money laundering, terrorism funding, or other illegal activities. These measures are far from regulations on Bitcoin, but it’s a start to make it more transparent and weed out the crooks. In fact, Australia has implemented similar measures to stop criminals and terrorists from money moving around undetected. Yes, it’s still legal to own Bitcoin, but at your own risk To clarify, Bitcoin is not illegal like cocaine or a giant sword. It’s just not recognized as a currency you can use to pay for things in Malaysia. Other than reminding the public that Bitcoin is not legal tender, Bank Negara is also warning us that: “Digital currency businesses are not covered by prudential and market conduct standards, or arrangements that are applicable to financial institutions regulated by Bank Negara,” If you’re interested to know more about using Bitcoin safely, here are a few tips from KCLau to avoid Bitcoin scams online. Bank Negara is also advising the public to evaluate the risks of cryptocurrencies carefully before making any investment decisions. Because if you make a mistake with Bitcoin, it might mean losing more than just a bit of coin…"
"If you hit someone who's illegally crossing the road in Malaysia, who's wrong? Don't you just hate it when a pedestrian suddenly crosses the road you're driving on, making you literally stomp on the brakes of your car? In such an instance, numerous thoughts would probably run through your mind at the same time. One of the more pressing ones, though, would likely be this: what if your car hadn't stopped in time – and you ended up hitting the pedestrian in question? In such a situation, it would only be natural to assume that the pedestrian is to blame for causing the accident. After all, he or she decided to cross at a random section of the road, so that’s already breaking the law, right? No, not quite. In fact, in terms of pedestrians illegally crossing roads – also known as jaywalking – the law isn’t quite as clear cut as we might think. There are actually a number of variables that come into play when an accident happens between a motorist and a pedestrian. For instance, you may be surprised to know that... Jaywalking is only illegal in 2 scenarios... A good way to kick-off this discussion is to understand the instances in which Malaysian laws recognise the crossing of roads as being illegal. For example, did you know that the scenario described in the opening of this article may not actually be illegal? What may be even more shocking to you is the revelation that crossing the road is regarded as a strictly illegal act in Malaysia only when it is done in 2 specific contexts, according to the Road Transport Act 1987 (“RTA 1987”). For starters, the Act states that a pedestrian is not allowed to cross a road if he or she does so at a spot that rests within 100 metres of a designated pedestrian crossing or overhead bridge. To do so is regarded as an offence: Section 75(2) of the Road Transport Act 1987 – Pedestrian crossings (in part): “...rules with respect to the precedence of vehicles and pedestrians respectively, ... including rules prohibiting pedestrians on the carriageway within one hundred metres of a crossing...” The second context is in the presence of traffic policemen or traffic wardens who are regulating the flow of traffic on a road. Pedestrians must stop or remain on their side of the road when they are instructed to do so. Until the traffic policeman gives pedestrians the green light to cross the road, they are not allowed to do so. Section 76 of the Road Transport Act 1987 – Duty of pedestrians to comply with traffic directions (in part): “...any pedestrian who proceeds across or along the carriageway in contravention of a direction to stop given by the officer in the execution of his duty, either to pedestrians or to pedestrians and other traffic, shall be guilty of an offence...” According to the Act, both these infractions carry with them a penalty in the form of a maximum fine of RM500.00. Now that you know when it is illegal, what happens if a pedestrian crosses the road illegally and you hit them? You might share the blame with the pedestrian When we consider the points above, alongside the fact that pedestrians always have the right of way in Malaysia as specified in the Road Traffic Rules 1959, things certainly do not seem to bode well for motorists who hit pedestrians that are crossing a road. However, there is no need to panic just yet. Generally speaking, in collisions involving pedestrians and motorists, there is no law in Malaysia that definitively takes either side. Such accidents are evaluated on a case-by-case basis instead, so as to establish which party was being negligent, or if both parties share the blame. This is similar to the common misconception that you’re automatically wrong if you hit a car from behind – it’s not (entirely) true. [READ MORE: If you hit a car from behind in Malaysia, it is automatically your fault?] For instance, if you – as a motorist – hit a pedestrian who is crossing the road where they are supposed to (such as a overhead bridge or zebra crossing), you could be charged with negligence, or careless or inconsiderate driving. These are punishable under Section 43(1) of the Road Transport Act 1987, with a penalty of a fine between RM4,000 and RM10,000, and imprisonment for a maximum term of 12 months: Section 43(1) of the Road Transport Act 1987 – Careless and inconsiderate driving (In part): “A person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for another persons using the road shall be guilty of an offence...” Alternatively, if an accident happens because a pedestrian crossed a road illegally, this pedestrian may be found contributorily negligent and would not be able to make full claims against the motorist that hit him or her. The same can be said for those who travel along or across a road or path without any consideration for traffic rules and the flow of traffic on a road. [READ MORE: Did you know that you can be taken to court for something that is not a crime?] ""Whether the pedestrian is contributory negligent and partially liable or wholly liable, really depends on the fact pattern of that case. What I can say is that a jaywalker is likely to be found contributorily negligent and not be able claim the full extent of his injuries, etc."" – Lawyer Fahri Azzat, in interview with ASKLEGAL. The validity of contributory negligence is also highlighted in Section 12(1) of the Civil Law Act 1956: Section 12(1) of the Civil Law Act 1956 – Apportionment of liability in case of contributory negligence (In part): “Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of that damage ... shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage ...” This law has been used on a number of occasions in court cases. For example, in the case of Abd. Rasip Abd. Kadir v Tan Ah Tee, a motorcyclist who collided with a lorry after that lorry overtook and stopped right in front of him on a road was only given 50% of his original reward. This was due to the fact that the motorcyclist had not taken any measures to avoid the collision, and there was no evidence that emergency brakes had even been applied. After all this has been said, the lesson here is... Look before you leap (or walk) At the end of the day, though, the best way to make sure that everyone remains safe while on the road is to do our part in making sure that we use our roads safely and in the manner that they have been designed for. For pedestrians, that means looking left and right twice before we cross roads, and using specially designated bridges or crossings to do so. For motorists, staying alert at all times while on the road and not driving at excessive speeds is recommended, especially along town or city roads with high pedestrian traffic. These may seem like recommendations that have been repeated over and over again, but it is always better to be safe than sorry. After all, irresponsible motorists and irresponsible pedestrians as still regarded as one of the most popular causes of local road accidents. Just remember that the law can only do so much to keep us safe, and the rest is in our hands! And feet."
"Mengapa Malaysia ingin menjatuhkan hukuman yang lebih ringan kepada pengedar dadah? Imej di atas dipetik daripada filem | Artikel ini diterjemah daripada Bahasa Inggeris. Click here for English version. Malaysia merupakan salah satu negara di dunia yang masih menjatuhkan hukuman mati untuk sesetengah kesalahan jenayah. Selain dari hukuman mati yang dikenakan untuk kesalahan jenayah yang kita sedia maklum seperti pembunuhan atau penculikan, hukuman mati juga dikenakan bagi sesetengah kesalahan jenayah yang kita kurang ketahui seperti cubaan pemberontakan dalam angkatan tentera (seksyen 132 Kanun Keseksaan) ataupun kes rogol yang mengakibatkan kematian mangsa (seksyen 276(4) Kanun Keseksaan). Artikel ini akan difocuskan pada kesalahan pengedaran dadah yang membawa hukuman mati mandatori. Kita mungkin menggunakan istilah mandatori secara sewenang-wenangnya di dalam konteks harian, tetapi dari sudut undang undang, istilah mandatori ini sebenarnya amat penting. Hukuman mati hanyalah mandatori bagi sesetengah kesalahan jenayah. Hukuman mati mandatori bermakna jika seorang pengedar dadah didapati bersalah, maka hakim yang terbabit wajib menjatuhkan hukuman mati ke atas pesalah. Ini bertentangan dengan hukuman mati bukan mandatori, di mana hakim boleh membuat pilihan samada pesalah dijatuhkan hukuman penjara ataupun dijatuhkan hukuman mati jika undang-undang membolehkan hukuman tersebut. Jika anda ada mengikuti perkembangan terkini, anda mungkin sedia maklum yang Malaysia telah memansuhkan hukuman mati mandatori bagi kesalahan mengedar dadah. Ada beberapa sebab untuk pemansuhan ini, tetapi salah satu sebab utama ialah... Penyabitan kesalahan pengedaran dadah tidak susah Di bawah Seksyen 39B Akta Dadah Berbahaya 1952 (“ADB 1952” – tiada terjemahan rasmi), jika anda didapati bersalah atas kesalahan mengedar, membuat tawaran untuk mengedar ataupun bersedia untuk mengedar dadah, anda akan dijatuhkan hukuman mati. Ini menunjukkan bahawa undang-undang kita amat keras terhadap pengedar dadah (ataupun bakal pengedar). Dan jika kita lihat dengan teliti, secara teori ia lebih mudah untuk anda disabitkan bersalah mengedar dadah dengan kewujudan anggapan undang-undang (“legal presumptions”). Anggapan undang-undang bermaksud bahawa mahkamah boleh menganggap bahawa pesalah telah melakukan jenayah sehinggalah ada bukti yang menyatakan sebaliknya. Terdapat pelbagai anggapan yang wujud di bawah Seksyen 37 ADB tetapi secara ringkasnya, artikel ini hanya akan difokuskan pada anggapan pemilikan dan pengetahuan (yang dijumpai dalam seksyen yang sama) dan anggapan mengedar. Anggapan pemilikan dan pengetahuan Anggapan pemilikan dan pengetahuan boleh dikaitkan dengan saranan yang sering diberi oleh ibu bapa kita sebelum kita berangkat ke luar negara – “Jangan tolong bawa barang orang lain”. Mungkin kita berfikir mengapa ibu bapa kita amat paranoid, tetapi nasihat ini sebenarnya amat penting dan berguna. Anggapan pemilikan dan pengetahuan di sini bermaksud jika anda membawa dadah bersama anda, maka anda dianggap pemilik dadah tersebut dan dianggap mempunyai pengetahuan bahawa bahan tersebut adalah dadah. Sebagai contoh, rakan anda memberi anda sebotol bedak untuk dibawa ke Jepun dan apabila anda melalui kastam, didapati bahawa kandungan botol bedak tersebut adalah heroin, maka anggapan pemilikan dan pengetahuan boleh digunakan untuk situasi ini. Seksyen 37(d) ADB (tiada terjemahan rasmi): “barangsiapa yang didapati memiliki atau mengawal apa-apa sekalipun yang mengandungi apa-apa jenis dadah berbahaya akan, sehingga bukti yang mengatakan sebaliknya diberi, dianggap memiliki dadah tersebut dan akan, sehingga bukti yang mengatakan sebaliknya diberi, dianggap tahu akan peranan dadah tersebut…” Anggapan mengedar Anggapan mengedar ialah tanggapan dimana jika anda dijumpai dengan dadah dalam kuantiti tertentu, anda akan dianggap mengedar dadah tersebut. Hukuman untuk pengedaran dadah adalah lebih berat daripada hukuman untuk pemilikan dadah untuk penggunaan peribadi. Seksyen 37(d) ADB ada menyenaraikan kuantiti terperinci bagi semua dadah di bawah Akta ini. Sebagai contoh, anda hanya perlu memiliki 15 gram heroin bagi disyaki mengedar heroin. (sebahagian) Seksyen 37(d) ADB (tiada terjemahan rasmi): “barangsiapa yang didapati memiliki –(i) heroin seberat 15 gram atau lebih ….. akan dianggap, sehingga bukti yang mengatakan sebaliknya diberi, mengedar dadah tersebut…” Anda boleh melihat betapa mudahnya kesabitan kesalahan pengedaran dadah boleh dijatuhkan apabila anggapan-anggapan ini digunakan bersama. Contoh situasi dimana anggapan-anggapan ini digunakan bersama ialah seperti berikut: Rakan anda memberi beg miliknya kepada anda untuk dijaga semasa anda berdua di kelab malam. Tiba tiba, polis menyerbu kelab malam tersebut dan anda ditangkap dengan 20 gram heroin di dalam beg yang anda sedang jaga. Anda akan didakwa mengedar dadah kerana pihak berkuasa menganggap beg yang dijaga oleh anda adalah milik anda dan anda ada niat untuk mengedar dadah yang dijumpai. Walaubagaimanapun, ia adalah penting untuk tahu bahawa anggapan-anggapan ini boleh ditentang. Anggapan-anggapan ini hanya benar sehingga anda boleh membuktikan sebaliknya di mahkahmah. Kita ambik rujukan contoh di atas: anggapan pemilikan dan pengetahuan dadah boleh dipertikaikan jika beg rakan anda mengandungi dompet dan kad pengenalan rakan anda, di mana ia boleh menjadi bukti bahawa beg tersebut bukan milik anda. Berita baik: Undang-undang ini telah dipinda! Kebanyakan dari kita menganggap bahawa hukuman mati mandatori ini telah berkuatkuasa di Malaysia sejak penubuhannya, tetapi ia hanya diperkenalkan pada tahun 1983 sebagai salah satu langkah kerajaan bagi memerangai gejala dadah. Meskipun begitu, statistik menunjukkan bahawa bilangan orang ditahan atas kesalahan mengedar dadah telah meningkat dari tahun ke tahun. Ini bermakna hukuman mati mandatori tidak berkesan dalam memerangi gejala dadah. Selepas menyedari bahawa hukuman berat tidak berkesan, Kabinet Malaysia bersetuju untuk memansuhkan hukuman mati mandatori dan, pada 30hb November 2017, Parlimen juga bersetuju untuk memansuhkannya. Pemansuhan ini mendapat sokongan dari badan hak asasi manusia dan sebilangan ahli politik Malaysia. “Jika mengambil nyawa seseorang itu adalah salah, maka kerajaan tidak juga patut berbuat demikian. Ianya ironik dan salah ... Tiada sistem perundangan yang sempurna. Kita ambil nyawa seseorang dan beberapa tahun selepas itu, kita dapati bahawa orang lain yang melakukan jenayah tersebut. Apa yang patut kita buat? ” – Datuk Seri Nazri Abdul Aziz, terjemahan petikan dari temuramah The Star, 29hb Ogos 2010 Apa implikasinya kepada pengedar dadah? Ada dua senario yang boleh berlaku di sini. Pertama, hukuman mati akan dimansuhkan sama sekali bagi kesalahan berkaitan dadah. Ini bermakna tertuduh akan dikenakan hukuman penjara sebagai ganti. Kedua, hukuman mati akan menjadi hukuman pilihan, bukan lagi hukuman mandatori. Maksudnya di sini hakim boleh membuat pilihan samada beliau ingin menjatuhkan hukuman mati ataupun sebaliknya. Sebagai contoh, jika hakim yakin bahawa pesalah dipaksa untuk menjadi penyeludup dadah ataupun diperas ugut untuk mengedar dadah, maka hakim boleh membuat pilihan untuk mengenakan hukuman yang lebih ringan. Anggapan pemilikan dan pengetahuan dan anggapan pengedar masih lagi ada tetapi hukuman mati bukan lagi mandatori. Tetapi harus kita sedari bahawa pemansuhan hukuman mati mandatori bukan bermaksud pengedar dadah akan dilepaskan begitu sahaja. Walau apa jenis hukuman yang akan diberi, kita harus berhati-hati dengan tidak meninggalkan beg kita tanpa pantauan dan tidak menerima bungkusan dalam bentuk apa sekalipun dari orang yang tidak kita kenali."
"Are pepper sprays legal in Malaysia? When Malaysians start seeing reports of crimes like snatch theft and robbery in places we frequently visit, the knee-jerk reaction is probably to find ways to protect ourselves. While it’s extreme to stay shut-in and not go out at all, it’s equally extreme (not to mention illegal) to carry a parang around for self-defence. But what about pepper spray? It’s meant to disarm a potential attacker long enough for you to get away safely. It doesn’t cause any injuries, and generally isn’t a lethal weapon, so it should be okay to carry pepper spray around, right? On the other hand, having pepper spray widely available also makes it prone to misuse, such as with one cosplayer who sprayed pepper spray at his “pursuers” at an anime convention. It’s clear that the spray is powerful even in the wrong hands. We get a lot of questions about whether pepper spray is legal in Malaysia. Whether or not they are legal depends on a few factors which we’ll look into below. There are different types of pepper spray Not all pepper sprays are created equal. The chemical composition of your pepper spray could decide whether it’s legal to carry around or not. The law in question here is the Corrosive and Explosive Substances and Offensive Weapons Act 1958 (CESOWA). An “offensive weapon” is anything that could cause “hurt” when used as a weapon. The legal meaning of “hurt” is under the Penal Code’s Section 319: “Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.” Section 6(1) of the CESOWA makes it illegal to carry an offensive weapon in public without a lawful reason. Offenders can be imprisoned for 5-10 years, and be liable to whipping. That being said, there are actually 3 main types of self-defence sprays out there, which you can check on the label and packaging. CN (Phenacyl Chloride) This was a self-defence spray developed back in 1960s. Once known as “mace”, it was an effective irritant that caused stinging and tearing. The problem was that it doesn’t work very well on drunks, people on drugs, or people who are violent/insane - all people you’re more likely to use the spray on… CS (Orthochlorobenzalmalononitrile) Besides the long chemical name, this is basically tear gas. It causes tearing and a burning sensation in the eyes, and makes your nose and mouth feel like they’re on fire. Those who have been gassed at protests are all too familiar with this experience. Tear gas also has the problem of being ineffective on people who are high, insane, or violent. OC (Oleoresin Capsicum) This one is the actual “pepper spray”. Upon being sprayed, you’ll start coughing and choking, feeling nauseous and get feel a strong burn. You might also become temporarily blind and have difficulty breathing. Pepper spray works on high, insane, and violent people - perfect for law enforcement and self-defence. So, which sprays are legal? Because pepper sprays all can cause “bodily pain”, this implies they are “offensive weapons” and are therefore illegal. But the law under Section 6 of the CESOWA also considers whether you were carrying it around for good reason. A pepper spray vendor has noted before that using pepper spray on a person other than for self-defence is a crime. He also says that owners of pepper spray have to register themselves with the police. The PDRM’s website actually states that not just businesses that sell pepper spray need to be licensed, owners of pepper spray also need to register for a permit. This registration is required under the Arms Act 1960 because legally speaking, a pepper spray is an “arms”, which requires you to have a permit to own one (just like a gun!). The definition of an “arms” in Section 2 includes: “...any weapon of whatever description designed or adapted or which can be adapted for the discharge of any noxious liquid, gas or other thing…” [READ MORE - What other items can I carry for self-defence?] The law on offensive weapons has been applied inconsistently at best, because some criminal cases involve people misusing pepper spray, but they were not charged with carrying a offensive weapon. On the other hand, the cosplayer we mentioned earlier was charged for carrying an offensive weapon in a public place. It might have been because he was also carrying a knife around, but the other thing is that one of his pepper sprays was a stronger one meant for use on bears - bear spray. The capsaicinoid content (the stuff that causes the burning) in bear spray is much higher than the pepper spray meant for use against human attackers. And unless you’re someone who deals with bears, you probably don’t have a good reason to be carrying bear spray around - which makes it a crime for you to do so. You can keep a pepper spray for safety, but for safety only Safety is a concern for many Malaysians, but we still prefer not to break the law when taking care of ourselves. Pepper sprays are technically legal in Malaysia, but only when they are used for self-defence. If you want to own a pepper spray, It’s best to check with your district police station whether you should register your ownership to stay on the right side of the law. Beyond that, you probably just want to make sure you don’t buy bear spray by mistake!"
"If you're a Mr Nice Guy will you get a lighter sentence in Malaysian courts? Imagine that you are looking around in a major clothing store. Out of the corner of your eye you see a sweater that you fancy. After trying it out for size, you decide that you will buy it, and you proceed to pay for it. Then, as you are walking out the entrance of the shop, the theft alarm sounds and the security guard stops you. You let the guard check your paper bag, but lo and behold, he finds another item that was not paid for in the bag. You didn’t steal that item, though, you genuinely have no idea how it got there. One thing leads to another, and you end up in court, charged with theft. The prosecutor brings in evidence to show that you were known to have taken things without their owners’ permission when you were a young child. What was the prosecutor doing? What the prosecutor brought in is known as character evidence. Character evidence is a type of evidence that can be submitted to show that a person acted in a particular way on a particular occasion based on the character of the person. To simplify using the short story above, the prosecutor used character evidence to try show that since you have a reputation of stealing things in the past, you may be guilty of the current theft charge. This article will go on to try to explain how character evidence works in civil and criminal cases, and how relevant they are. The law of evidence is based on concepts such as relevancy and weight of evidence, but those concepts won’t be covered in this article. They will, however, be covered in a separate future article, so please look forward to it. Having said that, what does character mean? The legal meaning of “character” is not what we think TL;DR: Character is a person’s reputation (what the community thinks of him) PLUS his disposition (his inherent nature, known to people who are closer to him). The legal definition of the word “character” is provided under the explanations of section 55 of the Evidence Act 1950. In sections 52, 53, 54 and 55 the word “character” includes both reputation and disposition; but, except as provided in section 54, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition is shown. It says that character includes both reputation and disposition. The case of Bhagwan Swarup v State of Maharashtra explains that there is a difference between reputation and disposition, whereby a man may be reputed to be a good man, but in reality he may be a bad person – something like Lex Luthor if you’re familiar with Superman’s arch nemesis. The difference between reputation and disposition is reputation is what others think of you, and disposition is what you really are. The case of Harbhajan Singh v State of Punjab goes on to explain that reputation is the finalized opinion of a person by the community, which takes time to form. Now that we know what character means, can character evidence be admitted in civil and criminal cases? Lets take a look at civil cases first. They’re only relevant in certain civil cases (aka lawsuits) TL;DR: Character evidence isn’t usually relevant in civil cases. The rules on whether character evidence is relevant in civil cases are provided in Sections 52 and 55 of the Evidence Act. Section 52 of the Evidence Act: In civil cases the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him is irrelevant, except so far as his character appears from facts otherwise relevant. Section 55 of the Evidence Act: In civil cases the fact that the character of any person is such as to affect the amount of damages which he ought to receive is relevant. To explain the sections, generally, character evidence is irrelevant in civil cases, but there are exceptions. The first is when a person’s character is an issue before the court, and the second is when a person’s character is relevant when assessing damages. Here are a couple examples: When a person’s character is a direct issue: An example of this is in the case of Sandison v Malayan Times Ltd., where Mr Sandison brought an action against Malayan Times Ltd for libel (a written statement that is damaging to the person’s reputation). Since the issue here is directly related to Mr. Sandison’s character, character evidence was allowed. When a person’s character affects the assessment of damages: “Damages” is a sum of money awarded to a person for loss or injury. Basically, the court can take into account a person’s character when awarding damages, if it is relevant. An example of this is when Ah Chong and Muthu get into a car accident. Ah Chong sues Muthu for damages, and the it was judged that both sides were contributorily negligent. The judge in the end decides to award less damages to Ah Chong because there is character evidence to show that he was known to be a very aggressive driver. Contributory negligence is when the victim in a tort action was also partly at fault. Read more on contributory negligence here! Is character evidence relevant in criminal cases, though? There is good character and bad character evidence in criminal cases TL;DR: Character isn’t really that relevant in criminal proceedings as well, except in specific circumstances. The area of character evidence in criminal cases gets very complex, so we’ll try to give an overview of how it works. In criminal proceedings, in relatively rare occasions, your character can be called into question, and is specifically classified as good and bad character. For good character, its relevancy is set out in Section 53 of the Evidence Act: In criminal proceedings the fact that the person accused is of a good character is relevant. Even though the section provides that good character can be relevant in criminal cases, subsequent court cases such as Bagwan Swarup v State of Maharashta: But, in any case, the character evidence is very weak evidence; it cannot outweigh the positive evidence in regard to the guilt of a person. Character evidence is “very weak evidence”. Even if good character was relevant, in the face of solid evidence, character evidence cannot override solid evidence. For example: if a person with a reputation of being a humanitarian and has done a lot for charity was caught on CCTV, and he was in the act of killing someone, his good character cannot save him from a guilty judgement. Now, the relevancy of bad character is provided under section 54 of the Evidence Act. Section 54 of the Evidence Act: 54. (1) In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant. The section says that the accused’s bad character is irrelevant, unless evidence has been given of good character. What does that mean? This means that the accused’s bad character only becomes relevant when the accused or the defence lawyer gives evidence of the accused’s good character. How does that work? A practical example would be: Person A is the accused in court. Person A then gives evidence that he is known as a good father. The prosecution may now then bring in evidence to show that person A has been known to physically beat his children, to try to negate (counter) the claim that he is a good father. We know that part was confusing, so a to make it digestible: If the defence does not present good character, the law gives them a shield against bad character evidence by the prosecution If the defence does present good character, shield is now broken, prosecution can bring in bad character evidence This is provided by Section 54(1) of the Evidence Act So no, you won’t really do worse in Malaysian courts if you have a bad personality The function of the courts is to look at the facts of the case, the evidence presented, the laws involved and decide on the case. They’re not really supposed to judge whether you’re a “good” or a “bad” person, so you can be the biggest jerk in the world but if you don’t break the law, your character doesn’t matter. So… being a Mr. Nice Guy doesn’t hurt, but it won’t help you substantially in court either. To recap, even though there are very specific exceptions, you won’t do worse in courts if you’re known to be a grumpy, foul-mouthed person. But this doesn’t give you an excuse to be a rude in court – that’s a whole different matter altogether! For this, you could be charged with contempt of court if you behave unreasonably in court, which is separate from the case that is being tried. Contempt of court is essentially anything that disrupts or prevents the courts from doing its job. You can read more about contempt of court here!"
"How effective are Malaysian anti-piracy laws? We asked a local game company You see the trailer for a game that looks really interesting and exciting. But knowing how overhyped the trailers can be, you can’t decide if you should get the game or not. You don’t want to spend RM100+ and then end up regretting your purchase. What do you do at this point? A lot of Malaysians have been in that situation in one way or another. Whether it was for music, TV shows, or games, you’ve probably wanted to try the product before buying - or maybe you just really didn’t want to pay for it. This where people often turn to piracy... Some people pirate to try the product even though it’s technically illegal, and some plan to buy the original later if they like it. Some also never buy anything from original content creators, so piracy is often called a problem that loses creators a lot of money. We approached Malaysian game developers, Shah and Jeremy, from Kaigan Games to find out how they handle piracy for their games. They recently released Simulacra, a game where you’re on the phone of a missing woman, and you’ve got to piece together clues to find her. It's their first full-length game released after their award-winning debut, Sara is Missing. Our laws are pretty tough on pirates, especially for games Section 36 of our Copyright Act 1987 makes it illegal to do anything a copyright owner has control over in Section 13, which includes copying and distributing the material. The penalty in Section 41 can range from RM2,000 up to RM250,000 depending on the severity of the piracy. This law is especially tough on people who hack into the digital copyright protection that games use [under Section 41(1)(h), (i), and (j)]. That itself is enough for you to go to the police, or the Intellectual Property Corporation of Malaysia to report the incident as a crime. On top of that, a copyright owner can sue the pirates for loss of profits. That’s what you’re aiming for when you sue - to undo the damage the other party did. So if pirates steal revenue away from the creators, they should be able to sue, right? [READ MORE - How do I get a copyright in Malaysia?] But according to Kaigan Games, piracy isn’t the main problem for them, because if pirates don't want to pay for your game, you can't force them to. “We have not taken any legal action against anyone!” - Shah, Producer at Kaigan Games in interview with ASKLEGAL There’s actually a bigger problem than piracy Turns out it’s not that simple to stop illegal downloads. It’s very difficult to prove in court that you lost profits. This is assuming you can actually track the pirates down in the first place. But while piracy is still technically illegal, in some scenarios, piracy might not actually harm creators that much. “I don’t think piracy itself is super big right now. Developers also understand that it’s not cutting into actual revenue.” - Shah, Producer at Kaigan Games in interview with ASKLEGAL Shah believes that piracy is not really an issue because if someone was going to pirate their game, they were probably trying it out before buying. The other possibility is that they couldn’t afford or didn’t want to buy your game anyway, so you haven’t really lost anything. “If they pirate the game but they love the game, although you didn’t get paid, at least you have one fan. Which is more than you’ll get if they never played the game at all. Because it’s an investment saying: in the future, when they have some money, they would buy our next game.” - Shah, Producer at Kaigan Games in interview with ASKLEGAL The real problem is “Cloning” That being said, you might be able to sue people who clone your creations and release a copy themselves, because according to Jeremy, Game Designer at Kaigan Games... “Cloning is actually a bigger problem than piracy because it causes real revenue loss. Basically what people do is look at your game and say: ‘okay, we’ll make a game exactly like yours, but maybe change a few things’.” - Jeremy, Game Designer at Kaigan Games in interview with ASKLEGAL Jeremy and Shah explain that when a game gets cloned, it’s worse than piracy because now people who would have bought your game are now buying from the person who copied almost exactly the same thing. An example is League of Legends, a popular battle arena game for the PC, which got copied by some mobile games. “For League of Legends to go against those copiers would be very complicated because they need to prove that it actually cuts into their revenue. Which is quite impossible because the copiers made mobile games, and League is a PC game.” - Shah, Producer at Kaigan Games in interview with ASKLEGAL Creators have to carefully consider if it’s worth taking legal action because it’s really expensive to do so, and you don’t know if you have enough backing to win the case. They only move forward with a case if the copiers are affecting their revenue so much that it’s worth the cost of the lawsuit. “Consider if this company is really cutting into your revenue or not. It is worth the legal battle? It’s very hard to prove and there’s a lot of grey areas so you cannot guarantee you’ll win the case.” - Jeremy, Game Designer at Kaigan Games in interview with ASKLEGAL How can creators protect themselves from illegal copiers? A lot of digital content like games use something called Digital Rights Management (DRM) to protect their content from being copied illegally. But Shah tells us that the stricter the DRM is, the more troublesome it is for paying customers. DRM is more of a deterrent than preventive measure, because it’s well known that DRM doesn’t really work... “Whenever you hear someone claim that their console or game is unhackable, confirm kena hack one…” - Jeremy, Game Designer at Kaigan Games in interview with ASKLEGAL If someone really wants to pirate your creation, they can do it. Jeremy also tells us that a lot of hackers pirate games more for glory than getting an illegal copy. It’s the challenge that the hackers are after, not the game itself; which is why some developers release their games without any digital security, including Witcher 3. That being said, here are some measures we learned that developers take to protect their creations. [READ MORE - Does copyright law protect your ideas?] Register your creation with MyIPO Kaigan Games tells us that when you want to create something, register your Intellectual Property with MyIPO before anything else (the Intellectual Property Corporation of Malaysia). The registration certificate gives you prima facie (assumed to be true until proven wrong) evidence that you were the first to create that content, in case you ever need to prove it in a lawsuit. It’s really important to register your work to prevent problems with copyright thieves. Kaigan Games experienced this because after they published their game “Sara is Missing”, they found out that someone registered their game as a trademark before they did. “Somebody registered Sara is Missing before us. Now when we want to oppose them, we have to give them proof and all that, but that’s fine. The thing is for you to register a trademark, you just have to fill in the forms saying this is the trademark you want to register, without needing any proof that you actually own the trademark.” - Shah, Producer at Kaigan Games in interview with ASKLEGAL This kind of problem happens when someone tries to claim your work after you publish, but before you register. So don’t take chances with your work and protect it as soon as you can. (A small note here is that copyrights and trademarks are different. For example, if you wrote a book named “Pak Cik Security and the Snatch Thief”, your book would be protected under copyright; but the brand people would know you by - “Pak Cik Security”, would be a trademark.) [READ MORE - How do trademarks protect you from getting conned?] Make a great piece of work “Internally, what we believe is that if I tell you an idea, and you can make a game from my 15 minute pitch, it was not a good idea to begin with. Because something good or with value should be really cool, but it might take a lot of effort to do.” - Shah, Producer at Kaigan Games in interview with ASKLEGAL For game developers, making a game that is harder to copy can work better than putting in security that is going to get broken anyway. Jeremy tells us that art assets, game code, and characters can be copyrighted, but game mechanics are not copyrightable. It’s therefore harder to copy games with a rich story, or have excellent coding and artwork. Sometimes, the thieves might end up making a better game that was inspired by their original. It would be hard to argue that they copied the work at all, much less eat into the profits Support the original work if you can Whether it’s books, comics, movies, or games, a lot of work goes into creating the final product, so lend the creator your support where you can. Piracy may or may not harm creators too much, but it’s still technically illegal. Not to mention you are closing yourself off from software upgrades, and there are risks when you download pirated software – they can actually have malicious programs bundled together with them which harm your computer or even steal your information."
"5 Malaysian laws that Santa breaks every Christmas It’s Christmas season! Even if you don’t celebrate Christmas, you’d be pretty familiar with Yuletide festivities like Christmas carols, Christmas trees, presents, and….. Santa Claus. Y’know, the guy who creeps into other peoples’ houses at night, secretly watching children – stuff that would sound like reason to call the cops if not for the context of it being done in Christmas cheer. Now, most of us know that Santa (allegedly) isn’t real but, if he was, have you ever wondered how far Santa will get in Malaysia before the PDRM impounds his reindeer and slaps on the handcuffs? This was the pressing discussion at the ASKLEGAL office, so we figured we weren’t the only ones curious about this. Also we’re a site that publishes articles about the law, so our choice of festive articles is rather limited. Just to make this credible and legit, the laws and legal (Santa) clauses are real and only applies to situations where Santa is within our borders since Malaysian law has no jurisdiction in the North Pole. A lot of assumptions have been made (such as there being no invitation to Santa to enter your house) since Santa has not responded to our letter seeking further clarification and a Nintendo Switch. Needless to say, none of this will have any impact on you unless you’re Santa Claus or a very committed impersonator. 1. Trespassing Imagine you’ve woken up in the middle of the night, and while going downstairs to get a glass of water, run into jolly ol’ Santa. At this point, you may interrupt his Ho-Ho-Ho with a call to nine-nine-nine because there’s a weird guy in a red suit suddenly in your house. You know he’s not there to rob you (the opposite actually) so what can he get in trouble for? Entering your house without permission, also known as trespassing. Not just that, there are actually 2 kinds of trespass that Santa could get in trouble for! The first is a criminal act – meaning that the authorities will press charges against Santa, and he could be slapped with a fine or imprisonment. As Santa is the type who’ll wait till even the mice in your house fall asleep before showing up, he’ll likely be charged under Section 443 of the Penal Code for lurking house-trespass: Whoever commits house-trespass, having taken precautions to Penal Code 233 conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit, “lurking house-trespass”. If found guilty, Santa would be facing fine and up to 3 years in prison for his first offence, with the addition of further fines and whipping for subsequent offences. The second kind of trespass is a civil wrongdoing, meaning you can sue Santa under tort law for Trespass to land. A tort is basically seeking compensation for a wrong that you have suffered, or what most people would call a lawsuit. Even though nothing was taken or damaged, the act of him entering your property without permission means that you’ll probably have a case… though you may need to check with your kids to make sure they didn’t send a letter inviting him into the home. [READ MORE: What is tort law?] But aha! Even if your kid DID send him a letter asking for a Nintendo Switch, it’s not a get-out-of-trouble free card. This is because, if your child was naughty and received a lump of coal (or anything other than a Nintendo Switch), you may still have a case as the permission to enter the house was given on the condition that Santa was bringing the Switch. 2. Housebreaking and obstruction of traffic Unless you’re living in a colonial home in the highlands, chances are you’re not going to have a chimney for Santa’s trademark entrance and exit. This structural omission has two implications: Santa has to enter through a door or window Santa has to park his sled outside your house (since there’s no point parking on the roof) Whether Santa decides to use a little Christmas magic or the lockpicking set that Lil’ Bobby asked for, he can be arrested under the charge of housebreaking. In fact, Section 445 of the Penal Code lists 6 different types of housebreaking that can be punished with a fine and a prison term for up to 3 years (and additional fines and whipping for subsequent offences). This also (arguably) includes a scenario in which Santa were to magically make a hole in your wall to get into the house, in the example provided under Section 445: “A commits house-trespass by making a hole through the wall of Z’s house, and putting his hand through the aperture. This is housebreaking.” With no chimney, it can be assumed that Santa would have no reason to park his sleigh on your roof. Instead, it’s more logical for him to park the sleigh outside your gate or by the road to break into enter your house. By doing so, he would be committing an offence under the Road Transport Act 1987 for obstruction by vehicle on the road: Section 48(1) of the Road Transport Act 1987: “If any driver of a motor vehicle causes or permits such motor vehicle to remain at rest on any road in such a position or in such a condition or in such circumstances as to be likely to cause danger, obstruction or undue inconvenience to other users of the road or to traffic, he shall be guilty of an offence and shall on conviction be liable to a fine of not less than one thousand ringgit and not more than five thousand ringgit or to imprisonment for a term of not less than one year or to both.” Basically, this section of the law makes it an offence to park your vehicle on the road in a way that causes danger, inconvenience, or becomes an obstruction to other people. If in the event Santa isn’t in your house but decides to park on your driveway regardless, the law also allows you to call the local authorities to clamp the...err… reindeer or to tow the sleigh away. [READ MORE: What can you do if someone parks in front of your house?] 3. Enticing a married woman Imagine if you woke up one night and decided to creep, down the stairs to have a peep, when everyone thought you were tucked in your bedroom fast asleep; imagine what a laugh it would have been, if only daddy had seen mommy kissing Santa Claus last night. While we can’t say for sure how amused daddy would be at the sight of his wife sharing Santa’s milk and cookies, what’s certain is that the law will not be smiling down on Santa. Particularly, he may face a charge under Section 498 of the Penal Code for enticing a married woman, which is punishable with a maximum 2-year stint in prison and/or a fine. Section 498 of the Penal Code – Enticing or taking away or detaining with a criminal intent a married woman: Whoever takes or entices away any woman who is and whom he knows, or has reason to believe, to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals, or detains with that intent any such woman, shall be punished with imprisonment for a term which may extend to two years or with fine or with both. However, there may be some circumstances where Santa kissing mommy would NOT amount to enticement, such as if they were under mistletoe (tradition) or if Santa sounds a whole lot like daddy (cosplay). 4. Illegally flying into the country (Maybe) As you know, entering any country without proper permits is a huge no-no in any country, much less flying into the country in your own personal aircraft. This doesn’t just break laws, but an unidentified aircraft entering Malaysian airspace is cause enough for a national security concern. This also means that as long as Santa adheres to the procedures set by the Civil Aviation Authority of Malaysia (CAAM) he should be clear to enter Malaysian airspace – which may present a problem because the Civil Aviation Regulations 2016, enforced through the Civil Aviation Act 1969, provides definitions for different types of air vehicles such as airplanes: Definition in Section 2 of the Civil Aviation Regulations 2016 (in BM only): “kapal terbang” ertinya suatu kapal udara yang didorong oleh kuasa lebih berat daripada udara, yang mendapat daya angkatnya dalam penerbangan terutamanya daripada tindakbalas aerodynamik pada permukaan yang kekal tetap dalam keadaan penerbangan yang tertentu; Unfortunately, there is no definition found for a sleigh drawn by reindeer. So does this mean that he’s going to have military jets scrambling after him the moment he enters Malaysian airspace? Surprisingly, Santa actually has this part kinda sorted out. Santa’s sleigh is classified as a commercial aircraft approved by and registered with the US Federal Aviation Administration – the same category as any plane carrying passengers or cargo. Santa also has a Canadian flight license (since he’s a Canadian citizen) and his sleigh is regularly inspected by the Canadian transport authorities. This means that Santa would be identifiable by Malaysian air traffic controllers when he makes the request, though whether or not such requests are made is not known. Just so you know we’re not making this up, the information is available from a US-Canadian government project called NORAD Tracks Santa, where the North American Aerospace Defence Command (NORAD) has been tracking Santa’s sleigh – called Santa One – since 1955 through a series of satellites picking up signals from Rudolph’s nose, tracking cameras, and escorts by military jets in US and Canadian airspace. However, where Santa may run into some problems once he arrives in Malaysia is with the Immigration Department. As he’s known to travel straight to houses, he may not be cleared by Immigration – running afoul of Section 6 of the Immigration Act 1959/63, which prohibits a non-citizen from entering Malaysia without a proper permit or clearance from the authorities. If caught, he can be considered an illegal immigrant and can (at best) be deported or (at worst) be punished with an RM10,000 fine, a maximum of 5 years in prison, a maximum of 6 rotan strokes, or a combination of the three. Not just that, he will be in trouble for Sections 16 to 30 related to Procedure on Arrival in Malaysia, such as failing to land at an authorized airport and not having the sleigh examined by the immigration authorities. In this scenario, Santa not only faces similar punishments listed in the paragraph above, but may also have his sleigh seized by the immigration authorities under Section 49A of the Immigration Act. 5. Not reporting the entry of Rudolph. Donner, Blitzen, et. al. Due to the choice of powering his sleigh with reindeer, Santa can get in trouble for not immediately reporting the arrival of his reindeer to the relevant authorities upon entering the country. Section 8(1) of the Animals Act 1963 – Arrival of Animals to be reported (in part): The master of any ship or aircraft and the guard of any train on board of which there is any animal or bird, whether such animal or bird is intended to be landed in Peninsular Malaysia or not, shall immediately on the first arrival of the ship, aircraft or train at a port, airfield or station in Peninsular Malaysia report the fact to a Port Officer or the officer in charge of the airfield or the station master, as the case may be, who shall without delay inform the nearest MAQIS office. As a quick note, MAQIS stands for Malaysian Quarantine and Inspection Services, a department under the Ministry of Agriculture. Failure to inform them (or a relevant authority who will) the presence of any animal upon arrival results in a maximum RM10,000 fine upon conviction. While the inner Scrooge in us may also think that Santa would for sure be on the wrong side of the recently-enforced Animal Welfare Act 2015 for overworking his reindeer, since going around the world in one night would be a rather taxing experience for even the strongest workhorse: Section 29(1) of the Animal Welfare Act 2015 – Cruelty offences (in part): 29. (1) Any person who— ... (b) overrides and overdrives any animal, except for activities in relation to equestrian sports... But this actually won’t be the case as it’s proven that Santa’s sleigh and reindeer have been upgraded with NextGen technologies that not only lightens their workload, but actually improves on fuel consumption (calculated in carrots per reindeer). No animal mistreatment here, everyone. But that’s not all the laws Santa will break! We’re only just covered the tip of the North Pole as there are laws that we don’t have the time and space to look into, such as unpaid duties and GST on gifts and possible smuggling or illegal import of goods. However, there is one surprising area where the law is lacking, based on one thing Santa is most known for – keeping tabs on whether a child has been naughty or nice. We would assume this would include some sort of monitoring of each child, which may amount to stalking; of which there is currently no law against (although this may be included in the Domestic Violence Act in the near future). Oh, and one more thing – Merry Christmas and Happy Holidays from the ASKLEGAL team!"
"Can you be detained without trial in Malaysia even with the ISA repealed? Under normal circumstances, when the police arrests you without a warrant, you must be brought before a magistrate without unnecessary delay and police detention of the arrested person is limited to 24 hours. This is why the Internal Security Act 1960 (ISA) was so notorious, because it allowed detention without trial. What is a detention without trial? It is when a person is put in a state of confinement, for example in prison, without being trialed first. How it generally works is: the police arrests you, puts you in detention, and if they think there are things to investigate concerning you, they go through certain procedures to prolong your detention. The thing about detention without trials is that the powers conferred by such laws are so wide that they are open to abuse. Detention without trial also violates many international human rights laws and guidelines, one of them being the United Nations Universal Declaration of Human Rights. [READ MORE: Can the PDRM enter a house without a warrant?] Currently, some of the laws that allow for detentions without trial are: Security Offences (Special Measures) Act 2012 (SOSMA). Prevention of Crime Act 1959 (POCA) Prevention of Terrorism Act 2015 (POTA) Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA) With that being said, let’s take a look into the Acts themselves. 1. Prevention of Crime Act 1959 (POCA) We’ll start with the POCA 1959. POCA was enacted to, as the name of the Act, suggests, prevent crime. Section 3(1) gives the PDRM power to arrest a person without a warrant if the police officer doing the arrest believes there is a reason to hold an inquiry against said person. 3. (1) A police officer may, without a warrant, arrest any person if he has reason to believe that grounds exist which would justify the holding of an inquiry into the case of that person under this Act. The arrested individual can also be detained up to 60 days with the approval of senior police officers. Here’s section 7(b): 7. (b) in any other case, on the application of a police officer may direct his release subject to— (i) the execution by the person of a bond, with or without sureties, for his due appearance at such place and at such time and within such period not exceeding fifty-nine days, as the Sessions Court Judge may direct; or (ii) the supervision of the police for such period not exceeding fifty-nine days as the Sessions Court Judge may direct This one ups the ante. Here’s Section 19A(1): 19A. (1) The Board may, after considering the report of the Inquiry Officer... direct that any registered person be detained under a detention order for a period not exceeding two years, and may renew any such detention order for a further period not exceeding two years at a time... After the 60-day detention, detainees have to be brought before the Prevention of Crime Board. The Board will then either discharge the detainee, subject him to house arrest and electronic monitoring (otherwise known as tagging), or serve a two-year detention that can be renewed indefinitely by the Board. Yes, that means you can theoretically spend your whole life doing the two-year detention over and over. Has this Act been used to detain someone? Absolutely. Earlier this year in February, Ang Kian Kok was arrested by police officers from Ibu Pejabat Daerah Klang Utara (Northern Klang Police Headquarters) for being in a vehicle suspected to have been used in a robbery. 2. Security Offences (Special Measures) Act 2012 (SOSMA) SOSMA 2012 was pushed out soon after ISA was repealed. SOSMA was created to replace the ISA, in that the focus of the law is to protect national security. SOSMA allows the arrest without warrant of people who the police officer has reason to believe to be involved in “security offences”. What are “security offences”? The First Schedule of SOSMA defines what “security offences” are: Penal Code [Act 574]: (i) Offences under Chapter VI (ii) Offences under Chapter VIA (iii) Offences under Chapter VIB Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 [Act 670] Special Measures Against Terrorism in Foreign Countries Act 2015 [Act 770] Offences under Part IIIA These include offences against the state, like waging war against the Yang di-Pertuan Agong, espionage, terrorism, et cetera. How long can a person be detained under SOSMA 2012? Secion 4(5) SOSMA: Notwithstanding subsection (4), a police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation In comparison, SOSMA only allows 28 days of detention compared to the ISA, which allowed a 60-day detention followed by possible extensions. However, there is a caveat. Section 5(2) allows a police officer of the rank of Superintendent and above to authorize a delay of up to 48 hours for a detainee to notify their family that they’ve been arrested, or to seek legal help. That means that a person cannot, in that time, call their family, or call a lawyer for legal help. Aside from that section 13(1) states that persons who are charged with a “security offence” are not bailable. What is “bail”? A bail is the temporary release of an accused person who is awaiting trial. There is usually a sum of money to be paid to guarantee their appearance at the court at a later date. SOSMA has been used in a few cases, one of them being the arrests of Turkish nationals Turgay Karaman and Ihsan Aslan, for being wanted in Turkey for being suspected of involvement with the Fetullah Terrorist Organization. It has also been used to cripple a triad, Gang 24, in Penang. 3. Prevention of Terrorism Act 2015 (POTA) POTA 2015 was enacted in the wake of the mobilization of terrorist groups, one of them being IS, to combat terrorist activity. POTA is in some ways similar to the POCA 1959 in that it allows the police to arrest person who they believe require an inquiry to be held into the case of the person. Section 3(1): 3. (1) A police officer may without a warrant arrest any person if he has reason to believe that grounds exist which would justify the holding of an inquiry into the case of that person under this Act Under POTA, individuals detained can be remanded for 21 days after the initial 24 hours’ detention with a statement in writing by a police officer not below the rank of inspector, under section 4(1). 4. (1) Whenever any person taken before a Magistrate under subsection 3(3), the Magistrate shall – (a) on production of a statement in writing signed by a police officer not below the rank of Inspector stating that there are grounds for believing that the name of the person who is engaged in the commission or support of terrorist acts... remand the person in police custody for a period of twenty-one days; That’s not all. You can be held for a further 38 days with: a statement in writing by the Public Prosecutor stating that sufficient evidence exists a statement in writing by a police officer of the rank of Assistant Superintendent and above stating the intention to hold an inquiry into the case at hand These are all stated in section 4(2)(a): 4. (2) Any person remanded under paragraph 1(a) shall, unless sooner released, on or before the expiry of the period for which he is remanded, be taken before a Magistrate, who shall – (a) on production of – (i) a statement in writing signed by the Public Prosecutor stating that in his opinion sufficient evidence exists to justify the holding of an inquiry under section 10; and (ii) a statement in writing signed by a police officer not below the rank of Assistant Superintendent stating that it is intended to hold an inquiry into the case of that person under section 10, order the person to be remanded in custody for a period of thirty-eight days; All the above time of detention, including the extensions, amount to 60 days, the same as in POCA 1959. After this initial remand of 60 days, the Prevention of Terrorism Board can decide to, if they are satisfied that the person has been or is engaged in terrorist activity, direct that the person be detained for 2 years, under section 13(1)(b), or a restriction order up to 5 years under section 13(3). Failure to comply with the restriction order will net a person imprisonment of up to 10 years. On Oct 6 2017 the PDRM have arrested 45 people for suspicion of being foreign terrorists. The IGP said that they were suspected of being members of various terrorist groups worldwide. 4. Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA) The DDA 1985 is not to be confused with DDR, a rhythm and dance video game that was hugely popular in the 90s. Enacted to provide preventative measures to drug trafficking, the DDA allows a police officer to detain a person for up to 60 days without a warrant. This is stated in section 3(2): (2) Any person arrested and detained under this section may be detained in police custody for a period not exceeding sixty days without an order of detention having been made in respect of him under subsection 6(1): After the first 30 days, the Home Ministry may extend the period of detention to 2 years: 6. (1) Whenever the Minister, after considering— (a) the complete report of investigation submitted under subsection 3(3); and (b) the report of the Inquiry Officer submitted under subsection 5(4)... direct that such person be detained for a period not exceeding two years. The DDA has been used to arrest “masterminds” and financiers of drug syndicates, in this example in Perak. At the time of the report, it was quoted that 139 people were arrested under the DDA. What about your right to notify your next-of-kin and receive legal assistance? When you are detained without trial, your rights are pretty restricted. Even your right to notify your next-of-kin and get legal counsel may be limited. For example, under SOSMA section 5(2): (2) A police officer not below the rank of Superintendent of Police may authorize a delay of not more than forty-eight hours for the consultation under paragraph (1)(b)... Basically, a police officer of the rank of Superintendent and above may delay your right of seeing or notifying your next-of-kin when you get detained. The police have pretty wide discretionary powers to delay this right of seeing or notifying your next-of-kin, and your right to legal counsel. Ostensibly the aim of these sorts of power-conferring laws is to accommodate and facilitate police investigation into what the government considers to be “serious criminal threats”. This restriction is also empowered by the Act itself, in that the restriction can be carried out regardless of whether it goes against Article 5 of the Federal Constitution, in regards to liberty of the person (you and I). Section 5(3) SOSMA 2012: 5 (3) This section shall have effect notwithstanding anything inconsistent with Article 5 of the Federal Constitution. Wait, it says in the Act specifically that the section can sidestep the Federal Constitution? What about our rights? Isn’t the Federal Constitution the highest law of the land? There are… exceptions. Article 149 of the Constitution states that in certain situations, the Parliament can enact laws that contravene Articles 5, 9, 10 or 13 of the Constitution, specifically, liberty of the person, prohibition of banishment and prohibition of movement, freedom of speech, assembly and association, and rights to property. These situations include things like terrorism, waging war against the Yang Di-Pertuan Agong, anything that promotes hostility between races, and basically anything that threatens national security. However, it is not without its upsides. This article by the New York Times highlights the frequency of detainees who later turn out to be terrorists are pretty high. To be fair, this has to be taken with a pinch of salt, because a system that works in the U.S. might not work here. Having said that, the PDRM is quite adept at their jobs in these areas, namely crime prevention, counter-terrorism and mobilization of the special forces. In all probability, you will not be detained without trial if you are not involved in any acts of terrorism, the trafficking of drugs, or triad activity. If you are, though, you should be a little worried."
"What can you do if you bought fake baby formula (or any other food) in Malaysia?  Malaysians are no strangers to the stories of fake foods. They wash up on our headlines every once in awhile and then disappear. We had that fake eggs scare back in 2014 where the eggs were made out of a whole bunch of things including benzoic acid which is commonly used to treat...eczema. The fake eggs were followed by fake Milo and now we have managed to make half of you wonder if the boiled eggs and Milo combo you have for breakfast every day is secretly killing you. The list doesn’t end there. We even had reports of fake rice and pisang goreng fried with plastic bottles. The latest news and potentially one of the scarier fake foods is the one related to baby formula. Recently, officers from the Ministry of Domestic Trade, Cooperatives and Consumerism (KPDNKK) seized 210 boxes of infant formula which they believed to be fake from a raid in Johor. Further to that, a worried mother has also taken to share the story of her baby who spent two weeks in a hospital, suffering from fever, vomiting, and bloody diarrhoea and she suspects that this is due to the fake Enfagrow A+ formula that she unwittingly fed him with. You can read her full story here. Mead Johnson, the manufacturers of Enfagrow, has also responded to the recent bust by the KPDNKK by highlighting to consumers about the differences between genuine and fake products. You can read their statement here. The ministry of Domestic Trade, Cooperatives, and Consumerism have also stated that they will “name and shame” the manufacturers of fake baby formulas. If you have fallen into the fake food trap and you are wondering if there are any laws against it, don’t worry. There are multiple actually. The first is... The Ministry of Health plays a part in food safety Specifically, it is the Food Safety and Quality Division of the Ministry of Health that plays a part in ensuring that every morsel that passes our lips is safe for consumption. They act to bust fake foods sold in the market through the Food Act 1983 (“FA 1983”). [READ MORE: How do I know if medicine and cosmetics in Malaysia are safe to use?] The first thing that the FA 1983 does is that it makes it an offence to prepare or sell food that has in it or on it, any substance that is injurious to health. This is found in section 13 of the Act: Any person who prepares or sells any food that has in or upon it any substance which is poisonous, harmful or otherwise injurious to health commits an offence and shall be liable, on conviction, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both. As you can tell from the excerpt of the Act, anyone who sells food that has been mixed with poisonous or harmful materials can be fined up to RM100,000 or spend up to 10 years in jail or even both. The best part is that this section does not just look at the immediate effect that the food may have on you, it also looks at the probable effect and the probable cumulative effect. This means that for someone to be guilty under this section, you don’t have to be immediately sick but the ingredients only need to be able to make you sick. There is a high chance that all the fake rice and fake eggs that you have seen in the news would fall under this section as a lotttt of chemicals would have been added for it to mimic the look, taste, and feel of actual food. Aside from that, if the food is not entirely fake, there is still an offence for adulterating food. Adulterating means to make something poorer in quality by adding in other substances. An example of this would be fake honey. Fake honey is actually mixed with a tiny bit of real honey in order for them to convince you that what you are buying is a real product. This offence is found in section 13B and there are different ways for food to be adulterated: If the food is mixed/diluted with anything that diminishes the food’s nutritive values If any ingredient of the food is extracted completely/partly and it diminishes the food’s nutritive values If the food contains/is mixed with any substance of inferior quality compared to what the food usually contains If the food contains any added substance which is not permitted by the FA 1983 and its regulations If the food does not comply with the specification and standard set out by the FA 1983 and its regulations If the food contains a greater proportion of substance than what is allowed under the FA 1983 and its regulations If the product is mixed, coloured, powdered, coated, stained, prepared or treated in any manner to hide its inferiority If the food comes in a package and it has been taken out of the package and repackaged with other products Anyone who is caught adulterating food in any of the ways mentioned above can be slapped with a maximum fine of RM20,000 and/or jail up to 5 years. If you know of anyone who has been selling food that is poisonous to health or adulterating it, you can make a complaint through the Ministry’s online portal here or drop the Food Safety and Quality Division a call at this number 03 8883 3553. However, realistically, many of us wouldn’t know what is in the food that we consume every day unless we fall sick immediately. But even then, we would usually assume that it is something to do with food poisoning so you might not be able to file a complaint with the Ministry of Health (unless you provide them with a sample of the food to be analysed). This is where the next part comes in. The KPDNKK helps as well Before we dive into what laws fall under this part, let’s talk about what does the KPDNKK do. KPDNKK stands for the Ministry of Domestic Trade, Cooperatives and Consumerism. From what we can glean off their website, they were established in 1990 and are responsible for protecting the interests and rights of Malaysian consumers. [READ MORE: 5 ways you can (possibly) get around a no refund policy in Malaysia] [READ MORE: 5 common sales tactics used in Malaysia that are actually illegal] Now that we know what they do, let’s dive into our favourite part – the law (yay!). The first piece of legislation to look at is the Trade Descriptions Act 2011 (“TDA 2011”). There are two ways an unscrupulous trader might be caught under this Act. The first is where they sell you products which they claim contains certain ingredients but actually contain harmful chemicals or additives. The second is where the trader sells you products that are marked as a famous brand but it is actually not an official product. Before we list out the actual sections dealing with scenarios 1 and 2, let’s look at the general definition of what is a “trade description” under the TDA 2011. This is found in section 6 of the Act and there are 14 different aspects of trade descriptions which you can read up in the Act. Therefore, what amounts to a trade description is pretty wide and it can cover anything from descriptions for secondhand cars (history of previous ownership) to an expiration date. Scenario 1 Ali sets up a store selling honey. He sticks a label on the bottles listing down the ingredients as 90% pure honey and 10% water. However, Ali knows that the “honey” he is selling is actually just sugar water and colouring. Let’s look at section 5 TDA 2011 for offences relating to scenario 1 given above. Section 5 makes it an offence for anyone to apply a false trade description to any goods that he sells or supplies: “Any person who— (a) applies a false trade description to any goods; (b) supplies or offers to supply any goods to which a false trade description is applied; or (c) exposes for supply or has in his possession, custody or control for supply any goods to which a false trade description is applied...” Anyone that is caught under this section can be fined up to RM100,000 and/or spend up to 3 years in jail for their first offence and for every subsequent offence, be punished with a fine up to RM250,000 and/or jail up to 5 years. If the person who sold you the goods with false description actually operates under a company, then the penalties would be harsher. For the first offence, they can be fined up to RM250,000 and for every subsequent offence, the fine can go up to RM500,000. Beyond that, the TDA 2011 also defines what counts as a false trade description. According to section 7 of the Act, there are 4 ways a trade description can be false: Where the description is false to a material degree. In other words, a substantial part of it is false Where the description is not false but it is misleading Where the information is not part of the trade description but it is an indication to any one of the 14 aspects of trade descriptions Where there is a false indication that the goods comply with specific standard/is recognised by any person Scenario 2 Ali sets up a store selling honey that he claims is by Brand Bagus. However, Ali knows that his product is fake and was not actually manufactured by Brand Bagus. For scenario 2, section 8 TDA 2011 has to be looked at. Specifically, section 8(2) states the following: “Any person who— (a) applies a false trade description to any goods as if the goods were subject to any rights relating to registered trade mark; (b) supplies or offers to supply any goods to which a false trade description is applied as if the goods were subject to any rights relating to registered trade mark; or (c) exposes for supply or has in his possession, custody or control for supply any goods to which a false trade description is applied...” In essence, section 8(2) makes it an offence for anyone to fix a trade description to any goods which they sell or supply, claiming to be from a certain registered trade mark. This means that in the case of the fake baby formula confiscated in Johor, the person caught by KPDNKK officers would have committed an offence under this section as he claims that the baby formula he is selling is made by Enfagrow when in actuality, he probably got it from a deep, dark, seedy underground place. Section 8(3) also makes it an offence for anyone to sell/supply goods without the permission of the registered owner of the trade mark and the law presumes that anyone selling such goods without consent does so under a false trade description. This means that all those random online stores that claim to sell Apple products may be selling genuine products but because they are not official resellers, they might be guilty under this section. It would be easier for you to make a complaint under the TDA 2011 to the KPDNKK as sometimes, fake products are pretty obvious. To drop KPDNKK a line, you can file your complaint here or ring them up on this number 1800 886 800. At the end of the day, live by this golden rule… If it sounds too good to be true, then it probably is If it is not a sale and the food product you are looking at is usually sold at three times the price then...be really careful about the choice you are going to make. Aside from that, exercise a discretion in choosing where you choose to shop for groceries and get your meals from. It might be better to travel the extra mile and shop with a reputable shop than run the risk of consuming fake foods. Even if the owners of your local stores are honest and upright folks, they might be similarly duped by their suppliers. At the end of the day, enforcement officers cannot be expected to be aware of infringements of the law without tip-offs from the public, so making a complaint is always a good start. Here are the relevant numbers for you to call for further information/lodge a complaint with if you missed it out in the article – 03 8883 3553 (Ministry of Health) and 1800 886 800 (KPDNKK)."
"5 ways legal moneylenders in Malaysia are different from Ah Longs When we think of moneylenders, we probably think of Ah Longs. With their “Pinjaman Berlesen” ads stuck all over Malaysia’s streets, throwing red paint, harassment, and even violence. Failing to pay Ah Longs has resulted in months of harassment for the families of debtors. But it also seems that even if you pay in full, some loan sharks will find ways to extort even more money out of you. We take it as obvious that these Ah Longs are 100% illegal, but you might not know that there are legal moneylenders who operate just like any other business. We tend to lump both of them together, but in reality the shop lots saying “pinjaman wang berlesen” are a world apart from the “pinjam 1000 dapat 980” you see on the roadside. They are still moneylenders who need to be paid, so is there anything stopping them from harassing you, or even splashing your house with red paint? There are actually regulations for them to follow under the Moneylenders Act 1951 (MA), but how does that make them different from the illegal lending hands out there? Turns out… 1. They need a license to operate While the actual Ah Longs out there probably won’t bother with this law, legal moneylenders need to apply for a license every 2 years to operate their business. Under Section 5(2) of the MA, failing to do so can incur between RM250,000 and RM1,000,000, or up to 5 years of jail, or both! Repeat offenders also get whipped, ouch. If you were wondering how to tell if they’re a licensed moneylender, look out for their original license, which must be put on display at their office under Section 5F. If they don’t, the penalties are as serious as up to RM10,000 and/or up to 6 months of jail. You may also want to take note that there are fake licenses out there supposedly issued by Bank Negara. Bank Negara has clarified that they do not issue these licenses; the Ministry of Urban Wellbeing, Housing and Local Government does. The license more than just a registration process, because moneylenders have a strict set of rules to follow if they want to keep their license. To start with, their background needs to be clean. The exact rules are a bit long, but you can find them under Section 9 of the MA. In short, a moneylender: Cannot be convicted of a crime involving fraud or dishonesty Cannot be convicted of an offence against a body, or property in the Penal Code (Chapters XVI and XVII) Cannot be a bankrupt Cannot be the management of a moneylending business that went bust Cannot get a license if there is evidence of bad character or they are somehow not fit and proper to be a moneylender You could generalize these safeguards as excluding people who might resort to nasty methods to make their debtors pay on time, or even hand out loans irresponsibly. According to CILISOS’s interview with a licensed moneylender, they need to do background checks on the people they lend money too as well! 2. The law controls how much interest they can charge One of the biggest complaints people have about Ah Longs is the amount of interest they take in charging you interest. We might be used to a monthly or yearly interest charge, but according to The Star some Ah Longs even have daily and hourly charges. They also report that some licensed moneylenders abuse their license with exorbitant interest rates, and we hope you never have to deal with them. However, licensed moneylenders actually have laws on how they can charge interest. Section 17(1) of the MA actually bans the use of compound interest or increasing the interest amount when you default (don’t pay on time). They basically have rules on how they can charge you and penalize late payments, whereas with Ah Longs they can make up the rules since you’re pretty much at their mercy. This law lets the legal moneylenders charge simple interest on the outstanding amount, at the same time preventing nightmare situations where your debt can quickly snowball to huge amounts. At the same time, licensed moneylenders can only charge a maximum of 12% interest per year for secured loans (putting something valuable you have as a “deposit” for the loan), and 18% interest per year for unsecured ones. This is provided in Section 17A of the MA. 3. They have to make sure you understand the lending agreement! If you’ve ever had a long contract to read that you didn’t really understand, you know that feeling of unfairness when you don’t know what your rights, responsibilities, and even liabilities are under the contract. How are you supposed to know what you need to do in case something goes wrong?Section 27 of the MA actually requires that your loan agreement be attested by a lawyer, a legal officer, a Commissioner for Oaths, or any other person authorized to attest documents. Here comes the important part: the attestor needs to explain the terms of the loan agreement to you and certify on the contract that you understood it. Without their signature, the loan agreement has no effect. There’s also a provision protecting minors under Section 8(d), which makes it illegal for licensed moneylenders to loan money to people under 18 years of age. Which is just as well because they may not fully understand the concept of borrowing money yet. 4. Even their advertising and marketing is controlled Moneylenders still need ways to get new customers, but controlling their ads and marketing was deemed necessary to regulate the moneylending profession. The last thing consumers want is for moneylenders to have agents and direct sellers going around trying to sell you a service you might not need. This is not to say agents and direct sellers are bad, but they’re probably not suitable for the moneylending business - because not everyone needs it. Section 27A prohibits licensed moneylenders from employing agents or canvassers (people who meet directly with clients and build a relationship). Adding on to that, licensed moneylenders also need to apply for a permit for every advertisement they want to put up according to Section 11 of the MA. Those advertisements probably need to be differentiated from all the illegal stickers we see all over our streets. 5. It’s illegal for them to harass or intimidate borrowers With all the harassment and threats coming from Ah Longs when they want you to pay up, you might be surprised to learn that it’s illegal for licensed moneylenders to resort to the more “creative” techniques to make people pay up. There are proper methods they go through to collect late payments. Section 29B of the MA makes it an offence to: “harass(es) or intimidate(s) a borrower or any member of the borrower’s family or any other person connected with the borrower at, or watches or besets, the residence or place of business or employment of the borrower, or any place at which the borrower receives his wages or any other sum periodically due to him” What they can is basically do is send you reminders, send debt collectors to get the money, issue letters of demand, and even blacklist you on credit rating agencies like CCRIS and CTOS, as well as their own shared database. So yeah, none of that splashing red paint, whether on your house, your office, your car, or even your family. Offenders can be fined between RM50,000 to RM250,000, and/or get jailed up to 3 years (plus whipping on repeat offences). If the moneylender sent someone else to do so, that someone can also be fined between RM10,000 and RM50,000, and/or jailed for up to 2 years. Handle money with care! Whether there are legal avenues or less legal ones to borrow quick cash, stay responsible with your money and don’t borrow what you don’t really need. It can help to build a safety net of savings in case of emergencies as well. If you ever actually need to borrow money from a moneylender, look for actual moneylending offices and ask to see their license and avoid calling the numbers on flyers - you don’t have a way to verify their legality. If you’re having a difficult time managing your finances, the Credit Counselling and Debt Management Agency (AKPK) might be able to help. They provide financial education, financial counselling, as well as a debt management programme. Check out their website for more information."
"Does the Malaysian government do anything to make sure that food is safe, and real? In the advent of the recent case of fake baby formula in Johor, there is good reason to take a look into what the law is on certification of authentic food in Malaysia. This fake baby formula incident is by no means an isolated incident, as can be seen in this other case of fake stevia, and this one on fake honey. These sort of fake foods are not only dangerous for the human body, they’re also illegal in Malaysia! But, did you know that food manufacturers can be held accountable if their factories are in bad conditions as well? Image paying a visit to a food factory, and seeing that the factory is very unhygienic, there are rubbish strewn around and there are rats building their very own colony there. There actually are laws that govern this area, and these laws will be discussed further down in this article. Basically, this article will touch on two topics: first, how food manufacturers can apply for the “authentication” of their food products, and second, the laws and regulations surrounding food manufacturing facilities. [READ MORE: What you can do if you bought fake food in Malaysia] First, let’s talk about how food manufacturers certify their foods as authentic, then we’ll move on to the factories. There are guidelines to apply for certification for authentic foods These guidelines called Garis Panduan Skim Pensijilan Makanan Autentik are prepared by the Ministry of Health of Malaysia. The guidelines also fulfill the requirements of the Food Regulations 1985 in order to determine if the foods are safe for consumption. Since the guidelines are written in Bahasa Malaysia, the following information are translated from Bahasa Malaysia into English. The procedure of application for certification is as follows: Application to the Ministry of Health must be made via Form KKM/MA 1, which can be obtained from the Ministry head office, State Health Departments, District Health Offices and from the Ministry of Health website A lab report from a Ministry-approved laboratory of the food intended to be manufactured must also be submitted A certain amount of fees must be paid, depending on the number of products to be certified After that, the process of certification is detailed in a handy chart within the guidelines. Long story short there is a committee within the State Health Department which will approve or reject the application. The State Health Department will conduct checks and inspections at least once a year for any food manufacturing companies. Food sampling may be needed for verification purposes during these inspections. Failure to adhere to the guidelines will result in the retracting of certification of authentic foods, and having the logo on any packaging material becomes forbidden. The next point goes into guidelines on food manufacturing facilities. These are different from the certification guidelines in that they’re aimed towards good manufacturing practices. How does the Amalan Pengilangan yang Baik help? There exists a set of guidelines called Amalan Pengilangan yang Baik (GMP) which are also written in Bahasa Malaysia. These guidelines serve to help the food manufacturing industry achieve higher standards in manufacturing foods for consumers. There are rules on the location of the manufacturing plant, the indoor floor plan of the plant, and even the lighting system, but for the purposes of this article, we will only be looking at the guidelines in relation to food and ingredients of food. Section 6.2 relates to raw ingredients: 6.2.1 Di mana perlu, bahan mentah perlu diperolehi daripada pembekal disahkan. Here it states that whenever possible, raw ingredients should be obtained from authorized sources. This is to eliminate chances of contaminated raw ingredients being used in the manufacturing process. 6.2.2 Penerimaan bahan mentah perlu diuruskan dan dipindahkan ke bahagian pemprosesan dan penyimpanan dengan cara untuk mengurangkan kerosakan dan pencemaran. Suhu bilik penyimpanan perlu dikawal untuk meminimakan kerosakan. Raw ingredients within the manufacturing facility should be managed and moved in a way that reduces damage and contamination to the ingredients. The room where the ingredients are kept should be temperature-controlled to minimize spoilage. 6.2.3 Penerimaan bahan mentah seperti bahan pembungkusan perlu diuruskan dan disimpan dengan cara yang dapat mengurangkan kerosakan dan pencemaran, (seperti pencemaran habuk, kawalan terhadap ketinggian susunan bahan dan kerosakan ‘forklift’) Even the packaging materials should be managed so that they are as far as possible free from contamination and damage. Those are some of the regulations that are applicable for food manufacturing facilities. The trouble is, there is no external inspection under these guidelines, instead they state that manufacturers should do internal audits. Not to worry, though. there are laws on factories which are enforced by the government. The laws provide for factories in general, not just food manufacturing facilities. However, since food manufacturing facilities are factories, the Act applies to them too. Factories are actually scrutinized The provisions of the Factories and Machinery Act 1967 covers a vast area regarding aspects of a factory’s management, so we will focus on hygiene and cleanliness, which are of utmost importance in manufacturing foods. Section 22 relates to health issues: (1) Without prejudice to any law relating to public health, in respect of any factory the following provisions relating to health of persons shall apply: (a) every factory shall be kept in a clean state and free from offensive effluvia arising from any drain, sanitary convenience or other source and shall be cleaned at such times and by such methods as may be prescribed and these methods may include lime-washing or colour washing, painting, varnishing, disinfecting or deodorising; Factories should be clean to the point where the factory workers’ health and public health should not be adversely affected. Are there any penalties for offending this section? You betcha. Section 51(2): (2) Any person who contravenes any other provision of this Act or any regulation made under this Act for which contravention no penalty is expressly provided shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both. The occupier or owner of the factory can be fined up to RM 50,000, imprisonment up to 1 year or both. What if the factory continues to be dirty after that? Section 51(3): (3) Where the offence of which any person is convicted is a continuing offence, such person shall, in addition to the punishment inflicted in respect of that offence, be further liable to a fine not exceeding two thousand ringgit for each day or part of a day during which the offence continues after the first day in respect of which the conviction is recorded If the offence persists, the offender can be fined up to RM 2,000 per day or part of a day during which the offence continues. For example, if the offence continues for another 4 days, the offender can be fined up to RM 8,000 in total. What if the contaminated food product has been shipped out to retailers and grocery shops? Or if fake foods are circulating in the market? Can the government order these products to be taken off the shelves? Yes, they can order these products to be removed from sale This power to remove fake or dangerous food is provided under Section 13C(1) Food Act 1983. Section 13C(1): 13C. (1) Where any food is found to have contravened or reasonably suspected to have contravened any provision of this Act or any regulations made under this Act, the Director or any authorized officer authorized by the Director may, by notice in writing, order any of the persons in section 24 to recall, remove, or withdraw from sale such food from any food premises within such time as may be specified in the notice. The Deputy Director General of Health or any official authorized by him or her will notify the people who are making or selling fake or dirty/dangerous food, who then have to remove these foods from sale within the time specified in the notice. People who are aware that they have fake food for sale, are also obligated to withdraw them from sale. Failing to withdraw these fake or dirty/dangerous foods from their shelves in both instances may be fined up to RM 100,000, a prison sentence of up to 10 years, or both. Is there anything you can do if you suspect your food is fake or dangerous? You have the power to make a change This handy website was put up by the Ministry of Domestic Trade, Co-operatives and Consumerism (MDTCC) to help businesses and consumers obtain information regarding consumer product safety in particular for goods and services. There’s a page on products that were recalled by their manufacturers and a page on banned products. You can either voice your complaints through said website, or call their hotline at +603-8882 5886. You can also check out the Ministry of Health’s website for useful information and also call their number at +603-8000 8000 for complaints of a similar nature. For more specific things you can do if you bought fake foods in Malaysia, give this article a read! Lastly, please be safe when buying any food products, especially ones that are highly in demand, such as baby formula, and honey. If the price sounds too cheap to be true, especially when compared to its commercial counterparts, think twice."
"What can you do if you bought fake food in Malaysia? Malaysians are no strangers to the stories of fake foods. They wash up on our headlines every once in awhile and then disappear. We had that fake eggs scare back in 2014 where the eggs were made out of a whole bunch of things including benzoic acid which is commonly used to treat...eczema. The fake eggs were followed by fake Milo and now we have managed to make half of you wonder if the boiled eggs and Milo combo you have for breakfast every day is secretly killing you. The list doesn’t end there. We even had reports of fake rice and pisang goreng fried with plastic bottles. The latest news and potentially one of the scarier fake foods is the one related to baby formula. Recently, officers from the Ministry of Domestic Trade, Cooperatives and Consumerism (KPDNKK) seized 210 boxes of infant formula which they believed to be fake from a raid in Johor. Further to that, a worried mother has also taken to share the story of her baby who spent two weeks in a hospital, suffering from fever, vomiting, and bloody diarrhoea and she suspects that this is due to the fake Enfagrow A+ formula that she unwittingly fed him with. You can read her full story here. Mead Johnson, the manufacturers of Enfagrow, has also responded to the recent bust by the KPDNKK by highlighting to consumers about the differences between genuine and fake products. You can read their statement here. If you have fallen into the fake food trap and you are wondering if there are any laws against it, don’t worry. There are multiple actually. The first is... The Ministry of Health plays a part in food safety Specifically, it is the Food Safety and Quality Division of the Ministry of Health that plays a part in ensuring that every morsel that passes our lips is safe for consumption. They act to bust fake foods sold in the market through the Food Act 1983 (“FA 1983”). [READ MORE: How do I know if medicine and cosmetics in Malaysia are safe to use?] The first thing that the FA 1983 does is that it makes it an offence to prepare or sell food that has in it or on it, any substance that is injurious to health. This is found in section 13 of the Act: Any person who prepares or sells any food that has in or upon it any substance which is poisonous, harmful or otherwise injurious to health commits an offence and shall be liable, on conviction, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both. As you can tell from the excerpt of the Act, anyone who sells food that has been mixed with poisonous or harmful materials can be fined up to RM100,000 or spend up to 10 years in jail or even both. The best part is that this section does not just look at the immediate effect that the food may have on you, it also looks at the probable effect and the probable cumulative effect. This means that for someone to be guilty under this section, you don’t have to be immediately sick but the ingredients only need to be able to make you sick. There is a high chance that all the fake rice and fake eggs that you have seen in the news would fall under this section as a lotttt of chemicals would have been added for it to mimic the look, taste, and feel of actual food. Aside from that, if the food is not entirely fake, there is still an offence for adulterating food. Adulterating means to make something poorer in quality by adding in other substances. An example of this would be fake honey. Fake honey is actually mixed with a tiny bit of real honey in order for them to convince you that what you are buying is a real product. This offence is found in section 13B and there are different ways for food to be adulterated: If the food is mixed/diluted with anything that diminishes the food’s nutritive values If any ingredient of the food is extracted completely/partly and it diminishes the food’s nutritive values If the food contains/is mixed with any substance of inferior quality compared to what the food usually contains If the food contains any added substance which is not permitted by the FA 1983 and its regulations If the food does not comply with the specification and standard set out by the FA 1983 and its regulations If the food contains a greater proportion of substance than what is allowed under the FA 1983 and its regulations If the product is mixed, coloured, powdered, coated, stained, prepared or treated in any manner to hide its inferiority If the food comes in a package and it has been taken out of the package and repackaged with other products Anyone who is caught adulterating food in any of the ways mentioned above can be slapped with a maximum fine of RM20,000 and/or jail up to 5 years. If you know of anyone who has been selling food that is poisonous to health or adulterating it, you can make a complaint through the Ministry’s online portal here or drop the Food Safety and Quality Division a call at this number 03 8883 3553. However, realistically, many of us wouldn’t know what is in the food that we consume every day unless we fall sick immediately. But even then, we would usually assume that it is something to do with food poisoning so you might not be able to file a complaint with the Ministry of Health (unless you provide them with a sample of the food to be analysed). This is where the next part comes in. The KPDNKK helps as well Before we dive into what laws fall under this part, let’s talk about what does the KPDNKK do. KPDNKK stands for the Ministry of Domestic Trade, Cooperatives and Consumerism. From what we can glean off their website, they were established in 1990 and are responsible for protecting the interests and rights of Malaysian consumers. [READ MORE: 5 ways you can (possibly) get around a no refund policy in Malaysia] [READ MORE: 5 common sales tactics used in Malaysia that are actually illegal] Now that we know what they do, let’s dive into our favourite part – the law (yay!). The first piece of legislation to look at is the Trade Descriptions Act 2011 (“TDA 2011”). There are two ways an unscrupulous trader might be caught under this Act. The first is where they sell you products which they claim contains certain ingredients but actually contain harmful chemicals or additives. The second is where the trader sells you products that are marked as a famous brand but it is actually not an official product. Before we list out the actual sections dealing with scenarios 1 and 2, let’s look at the general definition of what is a “trade description” under the TDA 2011. This is found in section 6 of the Act and there are 14 different aspects of trade descriptions which you can read up in the Act. Therefore, what amounts to a trade description is pretty wide and it can cover anything from descriptions for secondhand cars (history of previous ownership) to an expiration date. Scenario 1 Ali sets up a store selling honey. He sticks a label on the bottles listing down the ingredients as 90% pure honey and 10% water. However, Ali knows that the “honey” he is selling is actually just sugar water and colouring. Let’s look at section 5 TDA 2011 for offences relating to scenario 1 given above. Section 5 makes it an offence for anyone to apply a false trade description to any goods that he sells or supplies: “Any person who— (a) applies a false trade description to any goods; (b) supplies or offers to supply any goods to which a false trade description is applied; or (c) exposes for supply or has in his possession, custody or control for supply any goods to which a false trade description is applied...” Anyone that is caught under this section can be fined up to RM100,000 and/or spend up to 3 years in jail for their first offence and for every subsequent offence, be punished with a fine up to RM250,000 and/or jail up to 5 years. If the person who sold you the goods with false description actually operates under a company, then the penalties would be harsher. For the first offence, they can be fined up to RM250,000 and for every subsequent offence, the fine can go up to RM500,000. Beyond that, the TDA 2011 also defines what counts as a false trade description. According to section 7 of the Act, there are 4 ways a trade description can be false: Where the description is false to a material degree. In other words, a substantial part of it is false Where the description is not false but it is misleading Where the information is not part of the trade description but it is an indication to any one of the 14 aspects of trade descriptions Where there is a false indication that the goods comply with specific standard/is recognised by any person Scenario 2 Ali sets up a store selling honey that he claims is by Brand Bagus. However, Ali knows that his product is fake and was not actually manufactured by Brand Bagus. For scenario 2, section 8 TDA 2011 has to be looked at. Specifically, section 8(2) states the following: “Any person who— (a) applies a false trade description to any goods as if the goods were subject to any rights relating to registered trade mark; (b) supplies or offers to supply any goods to which a false trade description is applied as if the goods were subject to any rights relating to registered trade mark; or (c) exposes for supply or has in his possession, custody or control for supply any goods to which a false trade description is applied...” In essence, section 8(2) makes it an offence for anyone to fix a trade description to any goods which they sell or supply, claiming to be from a certain registered trade mark. This means that in the case of the fake baby formula confiscated in Johor, the person caught by KPDNKK officers would have committed an offence under this section as he claims that the baby formula he is selling is made by Enfagrow when in actuality, he probably got it from a deep, dark, seedy underground place. Section 8(3) also makes it an offence for anyone to sell/supply goods without the permission of the registered owner of the trade mark and the law presumes that anyone selling such goods without consent does so under a false trade description. This means that all those random online stores that claim to sell Apple products may be selling genuine products but because they are not official resellers, they might be guilty under this section. It would be easier for you to make a complaint under the TDA 2011 to the KPDNKK as sometimes, fake products are pretty obvious. To drop KPDNKK a line, you can file your complaint here or ring them up on this number 1800 886 800. At the end of the day, live by this golden rule… If it sounds too good to be true, then it probably is If it is not a sale and the food product you are looking at is usually sold at three times the price then...be really careful about the choice you are going to make. Aside from that, exercise a discretion in choosing where you choose to shop for groceries and get your meals from. It might be better to travel the extra mile and shop with a reputable shop than run the risk of consuming fake foods. Even if the owners of your local stores are honest and upright folks, they might be similarly duped by their suppliers. At the end of the day, here are the relevant numbers for you to call for further information/lodge a complaint with if you missed it out in the article – 03 8883 3553 (Ministry of Health) and 1800 886 800 (KPDNKK)."
"5 ways you could sabotage your own court case The characters and events in the example below are purely fictional. Any similarity or resemblance to reality is purely coincidental. Jitendra’s heart drops. He just lost a court case against his futsal buddy Jawagar. Jawagar is a really good futsal player who packs a powerful kick. In fact, his kick is so powerful that during a game, he accidentally broke Jitendra’s leg while performing a tackle. The medical bills racked up quite high for Jitendra, and hey, Jawagar is the one who broke his leg, so he should pay for the hospital bill right? Jitendra sues, only to find the judge saying sorry to him because he was not entitled to compensation from Jawagar. It’s clearly Jawagar’s fault, so how come Jitendra lost the case? Turns out the judge actually said that Jitendra didn’t have a right to compensation because he “volunteered” to get injured. What? Who would volunteer to get their leg broken? The above scenario is an example of one way a person can lose their right to get legal compensation. There are a few scenarios where a person can’t get compensation for an injury in the law, usually where giving the compensation becomes unreasonable, as you’ll see below. You’ll want to settle most injuries and contract disputes out of court, but if a legal battle is absolutely necessary, you might want to check that you don’t fall into these 5 scenarios if you’re going to sue somebody. 1. You willingly took a risk To address Jitendra’s story we told above right away, if you knew of a risk and still took it willingly, you may not be able to claim for compensation if you got injured. This principle is known in law as volenti non fit injuria, which translates to “an injury cannot happen to a willing participant”. So if you participate in a futsal match, you are basically saying you willingly risk futsal-related injuries. This is applied in cases where you had full knowledge of the nature and extent of the risk you’re taking, and you took the risk voluntarily. As an example, a construction worker may fully understand the risks of working on a construction site. He takes the risk of using the machinery, carry heavy loads, but he does not willingly take the risk of a crane carrying stones over his head (why does it have to be over his head in the first place?) On the other hand, if someone disregards safety precautions and then gets injured, the law also says that they “volunteered” to get injured (ICI v Shatwell [1964]). So if you refused to wear safety equipment and got injured because of that, this rule will apply to you as well. 2. You were doing something illegal If someone did something illegal, and then wants to claim compensation for getting hurt, the law will not allow it. This principle is called ex turpi causa non oritur actio, which means “an action cannot come from a bad cause”. It goes against public policy, because criminals would then be able to use the law to protect themselves. Imagine a robber suing you for injuring him, or a scammer telling the police that you refused to give him money. It seems silly because those examples are rather extreme situations, but consider this UK case below. (it’s not binding on Malaysian law, but it illustrates the same legal principle) In 1991, 18 year old Andrew Pitts sued his dead 16 year old friend, Mark Hunt. They got drunk at a party and Mark was driving them home. It was more than just silly because Mark was not just drunk, he had no license or insurance. They crashed into a car, and Mark died, while Andrew was permanently disabled. Andrew lost the case because he and Mark were doing something illegal together, and thus forfeited the law’s protection. 3. You’re partly at fault as well Consider a car crash where Driver A was injured because of Driver B’s reckless driving. Driver B will be at fault, but what if Driver A suffered extra injuries because he wasn’t wearing a seatbelt? This was the UK case of Froom v Butcher [1976], Froom’s compensation from Butcher was reduced by 20% because he didn’t wear a seatbelt and caused himself worse injuries. Froom had to share some of the blame under a rule called “contributory negligence”. As the name of the rule suggests, it’s applied when the injured party was also at fault. You can take it as the law requiring people to take care of their own safety as well. In Malaysia, this rule is also in Section 12(1) of our Civil Law Act 1956. It’s a bit confusingly phrased, but basically it says that if you got injured and it’s partly your fault, you can still claim compensation, although what you can claim will be reduced. 4. You don’t exercise your right for a long time If someone hits your car from behind, you wouldn’t wait 6 months before doing something about it. The law will not protect the rights of people who delay unreasonably in taking legal action. This concept also applies to lawsuits, and there are actually rules on how long you can wait before taking action against someone. [READ MORE - How long is the time limit for me to sue someone?] To be clear, the law will look at why you were delaying taking action. If you didn’t know about your right, or maybe you were away for National Service, then your legal right will be protected. However, if you took too long for no good reason, you will be barred from getting compensated. A real incident of this happening was in the local case M. Ratnavale v S. Lourdenadin [1988]. Lourdenadin had an agreement to buy some land from Ratnavale. Problem was Ratnavale sold the land to someone else. Yet, Lourdenadin only filed a lawsuit 14 months after the fact. The court held that Lourdenadin took way too long to protect her right so she could not sue for the piece of land anymore. 5. You didn’t take steps to limit your losses It would be quite crazy for someone to get wounded and then not want to stop the bleeding. If someone did that in real life, you’d call them suicidal. If someone did that in law, you’d say they lost their court case. Because there’s a duty on the injured party to mitigate (limit) their losses! To use a better example, if Supplier A didn’t get you the goods on time for an important event, you need to do damage control and get Supplier B pronto, not just let your event fail. By doing so, you would then sue Supplier A for the cost of engaging Supplier B. There was a case in 1969 between Kabatasan Timber Extraction v Chong Foh Shing where Kabatasan was contracted to supply timber to Chong’s sawmill. Instead of delivering the timber to the sawmill, they dumped it about 500 feet away… Chong did “damage control” by buying timber from someone else, and then sued Kabatasan for the price. He won the lawsuit initially, but on appeal the Court wasn’t amused, because Chong could have just paid someone to transport the timber and then sue on that small amount instead. The law helps those who help themselves From the above, you’ll note that the scenarios basically say we have the duty to protect ourselves against harm and losses. You might have not known that you can forfeit your legal right in the first place, but you probably don’t have anything to worry about as long as you take care of yourself and don’t do anything illegal. If you do have a situation you might want to take to court, you should consult a lawyer to check how you can resolve the matter. Every situation is unique and these are just general rules the law takes into account to weed out cases where it would be unfair, or where someone tries to game the legal system."
"If someone borrows money and doesn't pay you back, Malaysian law can help We have all been there – friends approaching us for a small loan during times of need. It may range from a quick, “Eh. Can spot me two bucks ah?” to the “I am really down on my luck recently, can you loan me some money for my house loan?” Whatever it may be, some of us would have coughed up that dough because, friends. It’s not like you won’t get that money back because you have known your friend for so long. However, what if you loaned your friend say, RM4,500 and he promises fervently that he would repay you the money in two months’ time and...it has been a year but you haven’t seen a single cent. As a matter of fact, you haven’t heard from your friend in awhile and you have been dropping him tons of calls and messages but it all goes unanswered. You are starting to get a little annoyed and that annoyance is added on when you see him jetting off to European countries for holidays. You think about bringing him to court but hiring a lawyer would cost even more than the money you loaned. Before you cry over the lost money, you can actually go to court without a lawyer for this. Bear in mind that this article is for small loans (family/friends or even goods sold and services rendered below a certain amount) but not for big loans like bank loans. This procedure is called... A small claims procedure This procedure is found in Order 93 of the Rules of Court 2012 (be warned that the link to the Rules immediately downloads a PDF file). The first question is how small is a small claims? A small claims is basically anything less than RM5,000. This means that in our example above, you would be able to rely on this small claims procedure to get the courts to help you make your friend cough up. Order 93, Rule 2 Rules of Court 2012 “This Order shall apply to claims where the amount in dispute or the value of the subject matter of the claim does not exceed five thousand ringgit.” Starting this procedure is as simple as filling up a form (no, really). All you have to do is head over to your local Magistrates Court and fill in Form 198. What do you have to do when filling up this form? Bear in mind the next few points for when you need to claim some money back: Fill in your (Plaintiff) full name, IC number, and current address Fill in the full name, IC number, and last known address of you the person you lent money to (Defendant) State the exact amount you are claiming for State the particulars of your claim e.g when the incident happened, how it happened/why you are claiming in court. Bear in mind the golden rule of “less is more” for this part because generally the Magistrates wouldn’t want to wade through grandfather stories. If you have any evidence to show that you passed your friend money (bank in slips, text messages), hang on to those Sign the form with a flourish and hand over 4 copies to the Registry of the Second Class Magistrates together with a payment of RM10 After you hand over 4 copies to the Registrar, he will affix the Court’s seal on all copies of your form and then set a hearing date for you. Don’t worry about making photocopies because one copy will be returned to you. After receiving that copy, you would have to send it to the person who borrowed money from you. You can either do this personally or by registered post only. Do not be a skint and use normal post to save a couple cents because you actually need to prove that you have sent the form over and this is found in Order 93, Rule 5(2): “The service of Form 198 may be effected by personal service or by prepaid registered post addressed to the last known address of the defendant.” An important point to note is that while you may consult a lawyer for filling up the form and taking you around the courts, you are not allowed to be represented by a lawyer during the hearing. Basically, you will represent yourself. This rule is found in Order 93, Rule 7. Now that you have sent off the form, all you have to do is sit back and relax. However, don’t be surprised to learn that... The person you loaned money to can fight your claim Before you froth at your mouth and scream about ungrateful people, take a deep breath and know that this is part of the idea of justice – that everyone has a right to defend himself in court. So what happens after you send that form off by registered post is that the borrower has 14 days from the day he receives the form to file a defence. He can do this by filling in Form 199 with the Registry in 4 copies. Basically this form will state down the following: If the borrower (defendant) admits that he owes you money, he will fill in the reasons why he admits to it If the borrower denies that he owes you money, he must similarly fill in the reasons why there is no money owed The borrower can also initiate a counterclaim against you. A counterclaim is where the borrower claims money from you instead. You can similarly file a defence against this counterclaim through Form 200 For the sake of completion of knowledge, when the borrower files this form with the Registry, he will either pay RM4 (for a defence) or RM24 for a counterclaim. Now, you might be wondering what will happen if your borrower doesn’t file a defence (or fails to do it within 14 days) or doesn’t show up in court. We will address this in the next section because regardless of what he does, you will still end up in the same place. You must make sure to attend court at the set date If either of you fail to attend court, then the court can dismiss the action or make an order that he thinks fit (Order 35, Rule 1). This means that if both of you don’t show up in court, the judge can just throw your case out. If only you are absent from court, then the judge can rule in favour of the borrower and can order you to pay the borrower for his counterclaim (if any) and even for any costs that he has incurred from defending himself from your claim. This is found in Order 93, Rule 8 and done through Form 203. On the other hand, there are two ways for you to get a decision in your favour. The first is where the borrower doesn’t show up in court, the court can use Form 202 to order him to pay up what he owes you plus the costs you incurred for bringing this claim. The court will also dismiss his counterclaim (if any). The second is where the borrower doesn’t file his defence to your claim. The court may either rule in your favour using Form 201 or he may postpone the hearing to another date in order to allow your borrower to file his own defence. However, an important point to note here is that if you get a decision in your favour just because the borrower didn’t show up in court/didn’t file his defence, the borrower can later own ask the court to “set aside” that decision. This means that he can apply for the court to throw out that decision and ask the court to come to a new decision. This is found in Order 10, Rule 1. You can also apply for a setting aside judgment if you were absent from court and you must do this within 21 days of the judgment being served (sent out) on you by the court. However, assuming both of you show up in court and your borrower files his defence, then the court will examine the facts and listen to both sides before coming to a decision. If he decides that your friend does owe you money, he will make a judgment/order for him to return you the money. The next question you might have is this, having a court order is all well and good but what if he still doesn’t pay up? The court can make him pay up What happens when the court makes an order is that they will serve it on the person through registered post. The borrower then has to comply with this judgment/order. If he fails to do so, you can make an application to the court through Form 208 (known as a notice of show cause) and after the court endorses it, you can serve it on your borrower using the same methods mentioned above (either personally or by registered post). Basically Form 208 will state that the following points for the borrower to note: He must deposit the amount the court ordered him to pay you with the court within 10 days If he doesn’t do so within 10 days, he must appear in court at the given date If he doesn’t appear in court, the court will issue a warrant for his arrest [READ MORE: What is the difference between a warrant and a summons in Malaysia?] If the borrower shows up in court, then the judge will make one of the following three decisions: He may allow the borrower more time to pay you back or set up an instalment plan He may order a writ of seizure and sale. This is basically the judge ordering court bailiffs to go to the borrower’s house to seize his belongings for auction in order to pay you back He can sentence your borrower to jail Now that you know how to file a claim, defend yourself in court, and how to enforce a judgment, go forth and claim all the monies that you are owed. However, since the procedure is pretty long and troublesome, it might be good to remember the age old adage of, “only lend money if you are comfortable with never getting it back”. Aside from that, if you are a borrower reading this article, we know that you may have fallen on hard times but sometimes, just communicating with your friend/family goes a long way in making them feel like you are not taking them for granted."
"If your doctor doesn't tell you what can go wrong, you can sue them under Malaysian law We’ve all heard the “surgeon left a pair of surgical scissors/bandages/foreign object in your body” horror story before, and we know that we can definitely sue for that. What if you go see a doctor one day because you feel feverish, and and he tells you you have dengue. You spend a week in the hospital, getting that sweet sweet saline solution into your bloodstream. Before getting discharged, the doctor sheepishly comes over to tell you that you did not in fact have dengue. Can you sue? What about if you were recommended by a doctor to get surgery on your back for a slipped backbone disc, but he didn’t tell you that there’s a chance of being paralyzed from the neck down? Imagine if you woke up after the surgery and you couldn’t move your body. Can you sue? Well, it turns out you can do just that. The Malaysian courts refer to an English case and an Australian case for different scenarios. The English case, Bolam v Friern Hospital gave us the Bolam test, and the Australian case, Rogers v Whitaker, has it’s own set of criteria as well. Before going into the Bolam case though, there is a little thing called “standard of care” to talk about. The standard of care expected of a doctor The law imposes a duty of care in certain scenarios. How it works is for example, if you visit a doctor, the law says that he must comply with certain standards. This is known as the “standard of care”. What does “standard of care” mean? In tort law, the standard of care is the degree of prudence and caution a person under a duty of care must have. For example: Your local shopping center just had their toilets cleaned, and the floor is wet. To fulfill their standard of care, the management only has to put up signs to warn people of the wet floor, but not make sure the floor is dry ALL THE TIME. The requirements of the standard are closely dependent on circumstances. [READ MORE: What is a tort?] In medical negligence cases, the criteria is somewhat different from your usual negligence claims. The expectations set for doctors and other professionals (and people who claim to be professionals) are different from your everyday guy. Without getting too much into it, the standard of care for doctors is higher than the one used to judge the Regular Joe. Now that we have an idea of what “standard of care” is, here we have the classic English case of Bolam v Friern Hospital Management Committee. Brief facts of the case: Mr. Bolam was suffering from side effects of having a mental illness His doctor suggested that he undergo electroconvulsive therapy The therapy can be done with, or without relaxant drugs. If done without, there is a risk that he will suffer fractures The therapy was done on Mr. Bolam without relaxant drugs, and he ended up suffering fractures His doctor did not warn him of the risk of fractures Mr. Bolam sued, and the court held that the doctor and hospital were not liable. How the courts decided whether the doctor and hospital were liable or not was later dubbed as the Bolam test. What is the Bolam test? The Bolam Test So the Bolam Test sets out the standard of care for doctors. There are 2 parts to this test. The first is the requirement of a professional person, in this case a doctor, to exercise reasonable care in undertaking the task associated with his particular professional calling. This means that a doctor should be careful as far as a normal doctor would be. The second is that said doctor will NOT be liable for the first part if he or she has complied with responsible professional practice. The thing is that there may be more than one way to do a procedure, resulting in multiple schools of thought (different ways of thinking) for that one procedure. Lets say a patient goes to two GPs with a fever, one doctor might prescribe antibiotics, and the other might not, and both are valid medical opinions. All in all the doctor must have acted in accordance to an accepted medical practice, and this practice must be regarded as proper by a responsible body of medical professionals. Now that you have an idea of what the Bolam test is, the case of Rogers v Whitaker must also be examined to make sense of the current position of the Malaysian courts in context of medical negligence. Rogers v Whitaker Here are brief facts of Roger v Whitaker: Mrs. Maree Lynette Whitaker had lost vision in her right eye when she was a child. She later underwent an eye surgery, but her doctor did not inform her that there was a risk that she would lose almost all of her vision She lost almost all of her vision She went on to sue her doctor and hospital. If the Australian High Court had followed the Bolam test, Rogers would’ve been found not liable. They disapproved of the Bolam test, and came up with 2 important points. The first is that judges now decide on whether or not the doctor was negligent. This is different from the Bolam Test which relied on medical experts to determine if the doctor was negligent. The second is that the doctors now have a duty to disclose material risk in proposed treatments. What is material risk? It’s when the risk is risk with grave consequences regardless of the frequency of it happening. For example, if the surgery you have to get has the risk of full-body paralysis, that is considered a material risk. Why is this case important? This case brought a new test for standard of care for doctors in exercising their profession. Wait, does this mean Malaysia has two tests for the same thing? Actually, our courts use the tests according to the situation In 2017, the case of Zulhasnimar binte Hasan Basri and Another v Dr Kuppu Velumani P and 2 Ors cleared the air a little.. Diagnosis and treatment, and advice on risk should be treated separately The courts are not equipped to decide on matters of diagnosis and treatment, there should be experts weighing in The courts can and will decide whether a patient is properly advised of the risks associated with a proposed treatment Bolam test applies for diagnosis and treatment, Rogers v Whitaker applies for advice of risks What does this mean? You now have a separate avenue to sue, whether it is for a doctor who failed to advise you on the risks of a proposed treatment, or for straight up negligence in making a diagnosis or dispensing treatment. If your doctor recommends a course of treatment, maybe surgery, and he or she doesn’t explain the risks to you, especially if it’s relevant to your lifestyle, then they can be liable following Rogers v Whitaker. On the other hand, if they mess up making a diagnosis or they mess up the treatment, they can be liable following the Bolam test. That being said, it’s really best to seek out legal advice from a lawyer regarding medical negligence cases, if you or someone you care about, have a possible case."
"Bagaimana satu kes bunuh di Singapura mengubah system perundangan kes bunuh di Malaysia Artikel ini diterjemahkan dari bahasa Inggeris. For the English version, click here. Jika anda pernah terbaca kisah jenayah ataupun menonton filem yang melibatkan pembunuhan seorang individu, anda pasti tahu yang si pembunuh akan cuba membuang ataupun melupuskan mayat sebagai langkah pertama kerana satu andaian umum ialah tanpa mayat, maka tiada bukti boleh ditemui, dan tanpa bukti, maka si pembunuh tidak bersalah. Ada juga segelintir pembunuh menerapkan kaedah yang di luar jangkaan untuk melupuskan mayat, seperti “Pembunuh Mandian Asid” John George Haigh, yang rata rata ‘mencairkan’ mayat mangsanya di dalam tong berisi asid. Andaian di atas sebenarnya tidak benar kerana anda BOLEH disabitkan bersalah atas tuduhan membunuh walaupun mayat tidak ditemui – dan ini tidak kurang bezanya di Malaysia. Ini terbukti dalam satu kes bunuh yang berlaku pada tahun 1963 di…..Singapura. Mari kita baca tentang kisah Sunny Ang dan sejarah hitam yang berlaku di perairan Kepulauan Sentosa lebih dari 50 tahun yang lalu. Bila Sunny bertemu Jenny Sunny merupakan jejaka tampan yang cukup bergaya. Dia juga seorang penyelam SCUBA yang mahir (ingat fakta menarik ini untuk rujukan kemudian) dan seorang pelumba kereta amatur. Mungkin sesetengah daripada anda menyangka bahawa Sunny ini merupakan calon menantu yang menarik, tapi kalau ikutkan rekod kerjayanya yang kurang memuaskan, anda akan fikir dua atau tiga kali. Sunny pernah mencuba nasib menjadi seorang juruterbang, guru dan pelajar jurusan perundangan, tetapi malangnya dia tidak berjaya dalam ketiga-tiga bidang ini (penulis artikel ni pun lebih kurang sama nasibnya). Dalam masa yang sama dia juga diisytiharkan muflis setelah gagal menyelesaikan hutang. Rata rata masa depannya nampak malap walaupun dia ni rupawan. Kemudian Sunny mula berkenalan dengan Jenny Cheok Cheng Kid. Pada tahun 1963, selepas Sunny Ang gagal menceburkan diri dalam tiga kerjaya, terlibat dalam satu kes bunuh hasil dari kecuaian memandu dan terlibat dalam cubaan merompak, dia besua pula dengan Jenny Cheok. Jenny merupakan seorang ibu tunggal kepada dua orang anak, telah berpisah dengan suaminya dan hanya pernah belajar setakat Darjah 3. Kerjanya pula hanya sebagai seorang pelayan di Restoran dan Bar Odeon. Jenny merupakan seorang yang kurang berpendidikan dan hidup susah, manakala Sunny adalah sebaliknya: berpendidikan tinggi, berpengalaman luas dengan hobi yang cukup exotik. Namun, seperti yang pernah kita semua tonton dalam cerita Hindustan, Jenny jatuh cinta dengan Sunny sekitar tahun 1963. Malangnya kesudahan hidup Jenny sungguh jauh dari impian indah Jadi, disinilah bermulanya kisah romantik mereka bedua. Pernahkan mereka berpegang tangan, bergelak ketawa sambil berjalan jalan di sekitar Bandar Singapura? Pernahkah mereka bercengkerama di bawah sinar bulan purnama di pantai Sentosa, berkongsi puisi dan nafas cinta? Entahlah. Tapi kita semua PASTI yang pada Ogos 1963, Sunny mengajak teman wanitanya menyelam, di mana ia berkesudahan dengan Jenny gagal pulang dari percutian tersebut. Yang anehnya, Sunny sedikitpun tidak menunjukan rasa cemas dan gelisah atas kehilangan Jenny. Lazimnya kita akan jadi gila dibuatnya, kan? Pasti kita akan melaporkan kehilangan orang tersayang kepada polis dan beri khabar kepada sanak saudara dan sahabat handai, meraih bantuan dari mereka untuk mencarinya di seluruh pelusuk Singapura. Tampal poster, upah penyiasat dan apa apa sahaja yang kita mampu demi mendapatkan mereka kembali ke pangkuan kita. Tetapi menurut saksi saksi utama kes, Sunny Ang hanya berdiam diri dan tidak menunjukkan apa apa reaksi. Perlakuannya ketika itu tidak seiras dengan perlakuan orang yang kehilangan bakal suami atau isterinya. Dengan itu pada April 1965, perbicaraan kes bunuh Sunny Ang bermula….. tanpa mayat mangsa. Tetapi, bagaimana Sunny boleh didakwa membunuh Jenny walaupun Jenny hilang begitu sahaja ? Mari kita lihat. Segalanya bermula di satu hari yang indah di lautan luas Ingat tak fakta menarik tentang Sunny yang menyatakan bahawa dia ni penyelam SCUBA yang mahir? Kemahiran inilah yang membolehkan Sunny merancang kehilangan dan (hampir pasti) pembunuhan Jenny. Kehilangan Jenny boleh kita ringkaskan seperti di bawah: Sunny dan Jenny menyewa bot dari Yusuf Ahmad, tukang perahu yang menjadi saksi utama kes ini. Mereka kemudiannya menuju ke Pulau Dua, di mana lokasi menyelam di sana tidak sesuai untuk penyelam baru seperti Jenny disebabkan arus air yang kuat. Setelah bot itu berhenti, Jenny menyelam dulu manakala Sunny menunggu di bot. Menurut Yusuf, fakta yang menariknya, dua bulan yang lalu sebelum ini, dia diupah oleh Sunny untuk membawanya dan Jenny ke sebuah pulau yang berbeza. Pada ketika itu, Yusuf menyedari bahawa Jenny tidak nampak seperti perenang yang berkebolehan. Sunny kemudian memeriksa tangkinya dan menyedari bahawa ia bocor. Dia merasakan bahawa kebocoran itu mungkin berpunca dari ‘washer’ tangki. Yusuf cuba membantu Sunny membaiki tangki tersebut namun tidak berjaya. Pada masa yang sama, Sunny cuba menarik tali pandu yang digunakan Jenny untuk membantunya menyelam sambil bertanya kelibat Jenny kepada Yusuf. Mereka kemudiannya cuba mencari gelembung udara di sekitar bot namun gagal, di mana selepas itu mereka bergegas ke Pulau St. John untuk melaporkan kehilangan Jenny kepada pihak polis. Dalam perjalanan ke Pulau St. John, Yusuf menyedari bahawa Sunny tidak menunjukkan tanda-tanda risau. Dia tidak bertindak cemas ataupun menyuruh Yusuf mempercepatkan perjalanan, tetapi sebaliknya dia sempat menukar pakaian dengan tenang. Lima nelayan menemani mereka kembali ke lokasi di mana Jenny hilang dan mula menyelam untuk mencarinya namun Sunny hanya menunggu di bot. Jenny hilang tanpa apa apa kesan meskipun usaha mencari terus dilakukan oleh nelayan tempatan dan penyelam dari Tentera Laut. Tapi, tak masuk akal kalau nak tuduh seseorang dengan tuduhan membunuh hanya kerana mereka tak nampak cemas atau gelisah, kan? Pihak pendakwa pada ketika itu telah membina kes ke atas Sunny Ang menggunakan fakta berkaitan (”relevant fact”) yang bila dilihat secara menyeluruh, menyakinkan pihak juri sehingga mereka mendapati Sunny Ang bersalah selepas sesi perundingan yang berlangsung selama dua jam, di mana selepas itu dia dijatuhkan hukuman gantung sampai mati pada 6hb Februari 1967. “Kes ini agak luar biasa di Singapura, malahan ia juga agak luar biasa di Malaysia. Inilah kali pertama di mana kes bunuh dibicarakan tanpa mayat mangsa.” – diterjemahkan dari temu duga Pendakwa Francis Seow, untuk The Straits Times, Singapura Jadi, Sunny Ang didapati bersalah dan dihukum gantung walaupun mayat mangsa tidak ditemui dan tiada bukti sahih (”direct evidence”) yang lain. Bukti apakah yang dapat meyakinkan pihak juri pada masa itu? Secara tidak langsung , Sunny Ang meninggalkan banyak bukti Pada masa kehilangannya, Jenny memiliki polisi insuran kemalangan bernilai $400,000 yang diambil oleh teman lelakinya. Yang peliknya di sini, kenapa seorang pelayan restoran yang membawa pulang gaji $90 sebulan memiliki polisi insuran kemalangan setinggi itu? Mungkin Sunny sedikit keterlaluan dalam bab menjaga Jenny, mungkin juga dia boleh dilihat sebagai paranoid sehinggakan dia sanggup membeli polisi perlindungan insuran yang amat tinggi; akan tetapi Sunny didapati telah memfailkan tuntutan insurans sehari selepas Jenny hilang. Selain dari itu, dua minggu sebelum Jenny hilang, Sunny menyarankan Jenny supaya meletakkan nama emak Sunny sebagai pewaris tunggal dalam wasiat Jenny. Jika anda masih tidak yakin, salah satu polisi insurans yang bernilai $150,000 tamat sehari sebelum aktiviti selam mereka di Pulau Dua, dan Sunny memperbaharui polisi itu untuk tempoh lima hari sahaja. Ini bermakna jika Jenny meninggal dunia selepas hari kelima, maka tiada sebarang tuntutan yang boleh dibuat. Selain dari pembelian insurans dan penentuan ahli waris yang pelik, penemuan sirip kaki (flippers) milik Jenny menjadi penentu ajal Sunny. Jenny hilang pada 27hb Ogos dan sirip kakinya ditemui pada 3hb September, tidak jauh dari lokasi kehilangannya. Yang peliknya, didapati bahagian tali tumit sirip kaki tersebut terpotong bersih. Menurut dua saksi pakar, analisa mendapati potongan bersih tersebut hanya boleh dilakukan dengan alat buatan yang tajam dan bukan dengan batu karang kerana batu karang mempunyai permukaan yang kasar dan tidak sekata. Saksi-saksi juga memberi keterangan bahawa dalam situasi sebegini, penyelam baru seperti Jenny kebiasaannya akan menjadi panik jika mereka mendapati mereka tidak boleh menyelam seperti biasa dan secara tidak sengaja, mereka akan tenggelam. Ada juga andaian di mana satu lagi cubaan bunuh ke atas Jenny dibuat oleh Sunny sebelum kehilangan Jenny di Pulau Dua. Pada masa itu, Sunny meminjam sebuah kereta dari rakannya untuk satu perjalanan ke Kuala Lumpur dengan Jenny. Sebelum pulang ke Singapura, Sunny telah membeli polisi insurans kemalangan bernilai $30,000 untuk dirinya sendiri dan $100,000 untuk Jenny. Setakat perjalanan dari KL ke Singapura, takkanlah sampai nak beli insurans berjumlah $130,000 kan? Bak kata orang, malang tak berbau. Tetapi bagi kes ini, malang ini seperti telah dijangka Sunny, apabila kereta yang dipandunya terbabas. Menurut Sunny, seorang pemandu yang mahir, (ingat tak yang dia merupakan seorang pelumba kereta amatur) keretanya terbabas ketika dia cuba mengelak anjing di tengah jalan. Kerosakan yang paling teruk berlaku di bahagian penumpang di mana Jenny duduk ketika kemalangan itu berlaku tetapi mujur Jenny hanya mengalami kecederaan yang ringan. Jadi, melalui beberapa fakta berkaitan Sunny didakwa dan didapati bersalah membunuh Jenny walaupun mayatnya tidak ditemui. Tetapi apakah itu fakta berkaitan dan kenapa mayat mangsa amat penting dalam satu satu kes bunuh. Mari kita lihat Akta Keterangan bagi tujuan perbincangan ini. Bukti kes sebenar adalah lebih rumit dari bukti kes di siri TV Menurut seksyen 5 Akta Keterangan 1950: “Keterangan boleh diberikan dalam mana-mana guaman atau prosiding mengenai kewujudan atau ketidakwujudan tiap-tiap fakta persoalan dan mengenai apa-apa fakta lain yang ditetapkan kemudian daripada ini sebagai berkaitan, dan tidak mengenai apaapa fakta lain.” Bahasanya berbelit di sini, tetapi yang pentingnya ia mengatakan bahawa terdapat dua jenis fakta yang boleh digunakan di mahkamah, iaitu fakta persoalan (”fact in issue”) dan fakta berkaitan (“relevant fact”). Akta Keterangan amatlah teknikal tetapi dasarnya, fakta persoalan adalah bukti langsung yang menunjukkan bahawa tertuduh melakukan kesalahan, di mana hakim kes tidak perlu membuat sebarang kesimpulan dan andaian berasaskan fakta ini. Manakala bagi fakta berkaitan, ia adalah bukti yang tidak menunjukkan secara langsung yang tertuduh melakukan kesalahan. Fakta kaitan boleh membantu membuktikan fakta persoalan dalam kes-kes. Untuk pemahaman yang lanjut, kita ambil contoh di bawah: A pergi bertemu B di Banting, B kemudian membunuh A menggunakan pisau dan membakar mayatnya, tetapi tanpa disedari B, C telah menyaksikan semua kejadian jenayah ini. Dalam senario di atas terdapat dua bukti penting, pertamanya adalah keterangan dari C dan keduanya adalah pisau. Keterangan dari saksi C adalah fakta persoalan kerana keterangan itu secara langsung memaklumkan hakim akan apa yang telah berlaku. Pisau yang mengandungi cap jari B merupakan fakta berkaitan kerana walaupun B memegang pisau tersebut, tetapi ini tidak bermakna B menggunakan pisau itu untuk membunuh A. Hakim perlu membuat kesimpulan berdasarkan cap jari B pada pisau tersebut. Mungkin pernah terlintas di fikiran anda yang anda pernah terbaca fakta senario di atas di halaman akhbar atau portal berita. Jika ya, memang benar kerana senario di atas menyerupai kes pembunuhan Sosilawati di Malaysia. Tetapi kenapa pula kita tumpukan perhatian kepada kes bunuh Sosilawati? Kerana kes Sunny Ang telah mempengaruhi kes bunuh Sosilawati Laporan mengenai kes ini boleh dibaca disini, jadi kita tidak akan mengkaji kes ini secara mendalam tetapi kes bunuh Sosilawati boleh dihuraikan sebagai kes yang pertama semenjak kes Sunny Ang. Pendek kata, inilah kali pertama kes bunuh dijalankan di mahkahmah tanpa mayat mangsa, semenjak kehilangan Jenny. Datuk Sosilawati dan tiga orang rakannya dibunuh oleh peguam beliau iaitu N. Pathmanabhan. Dia kemudian membakar mayat mayat tersebut untuk mengelakkan mayat dari dikesan. Berikutan dari ini, Pathmanabhan didakwa dan didapati bersalah atas tuduhan membunuh Datuk Sosilawati dan tiga rakannya berdasarkan circumstantial evidence. Ini bermakna kes bunuh yang berlaku di Singapura pada tahun 1963 menjadi asas yang penting untuk satu lagi kes yang mirip dengannya di Kuala Lumpur pada Mac 2017 apabila Mahkamah Persekutuan mengekalkan keputusan bersalah ke atas N. Pathmanabhan dan dua orang rakannya. Berdasarkan apa yang kita telah baca di atas, kes yang berlaku bertahun-tahun dahulu di nagara lain boleh mempengaruhi undang-undang dan perhakiman di negara kita. Malah, banyak undang-undang di negara kita mempunyai persamaan dengan undang-undang di UK dan negara-negara Komanwel lain. Hakim di negara kita juga boleh merujuk kepada keputusan kes yang dibuat di UK apabila hendak membuat keputusan untuk kes yang sama disini. Nampaknya banyak juga andaian yang kurang tepat berkenaan undang-undang wujud di luar sana ya. Jika anda ada membaca artikel-artikel lain di sini, anda mungkin perasan yang kita banyak juga merujuk kepada kes kes dari UK. Bukannya kita nak menunjuk kehebatan kita dalam sejarah Inggeris, tapi kes-kes ini masih lagi digunakan sebagai asas bagi penghakiman di mahkamah Malaysia sehingga ke hari ini."
"Is it a crime to sleep with someone in Malaysia if you have HIV? The feature image was screencapped from a Youtube video. You can watch it here. To not beat around the bush (heh), people are generally more open to sex these days. Whether you choose to dabble in it after marriage or in a relationship or even through multiple hookups, it is all good. The crux of it all is to do it safely and with the full, informed consent of your partners. However, sometimes accidents do happen and things get...messy. For example, you can be extremely safe but it only takes one slip up to end up with a sexually transmitted disease (“STD”). Most of the times, these STDs are curable with a slightly mortifying visit to your doctor and dose of medicine. However, there is one virus that is incurable...the human immunodeficiency virus or commonly known as HIV. Since it is incurable, the law takes a harsh stance against the transmission of HIV. For example, in Canada, a man by the name of Johnson Aziga became the first man to be convicted of first degree murder after the two women he transmitted HIV to died from complications from AIDS. Aside from this conviction in Canada, the UK relies on section 18 and section 20 of the Offences Against the Persons Act 1861 to convict those who either intentionally or recklessly pass on HIV to their sexual partners. Before we delve into the legal situation in Malaysia, let’s have a quick lesson on what HIV is. You don’t die from HIV but… The first thing you need to know is that you don’t get AIDS. You get infected with HIV and this may or may not develop into AIDS. A HIV infection can come through the blood, vaginal fluid, semen and breast milk of those infected with HIV. This means that HIV can be transmitted through unprotected sex, sharing of needles, contaminated blood transfusions, and from an infected mother to her child. There have been no documented cases of HIV transmitting through tears or saliva. If you have been infected with HIV, the body starts producing antibodies to fight this virus and these antibodies are what the blood tests look for. However, generally, blood tests are more accurate if done after 3-6 months from the date you were exposed to the infection. Even if the tests can’t detect the presence of HIV, it is still possible for you to transmit the virus on to someone else. You can read more about the early symptoms of HIV here. Even if you are HIV positive, you can still be healthy but failure to take medication (antiretroviral therapy) will cause the virus to slowly erode your immune system over the years, leading to AIDS. You won’t die from AIDS but living with AIDS means living with a severely compromised immune system which means that you are extremely susceptible to all kids of infections and your body has a harder time fighting infections off. Common infections include pneumonia, Kaposi’s sarcoma (skin cancer), cytomegalovirus (eye infection) and candida (fungal infection). These infections are termed as opportunistic infections as they take advantage of your AIDS-weakened immune system. This is why someone doesn’t die from AIDS but they die from AIDS related complications due to the infections. You can read more about opportunistic infections here. Now that we have covered the basics of HIV and AIDS, let’s move on to the legal side. Malaysia has strict laws against the transmission of HIV The first point of reference would be in section 12 of the Prevention and Control of Infectious Diseases Act 1988 which states that: “No person who knows or has reason to believe that he is suffering from an infectious disease shall expose other persons to the risk of infection by his presence or conduct in any public place or any other place used in common by persons other than the members of his own family or household.” This means that if you are aware that you are living with HIV or you have reason to believe that you might be living be HIV, you are not allowed to expose the risk of infection to people around you, whether it may be in a public place or a place that is commonly used by persons other than your family members. You are also not allowed to act in a way that is likely to pass on the risk of infection. To put it in perspective, here are some examples: Ahmad is living with HIV and is aware that he has HIV. He has sex with a girl without informing her of his HIV status and without using a condom. Ahmad is guilty of an offence under section 12 of the 1988 Act. Ahmad is living with HIV and is aware that he has HIV. Ahmad purposely pricks himself with a needle and goes around pricking strangers with the said needle. Ahmad is guilty of an offence under section 12. The next batch of laws can be found in our Penal Code and we will explain each of them in turn: Being careless and doing it on purpose (section 269 and section 270) Section 269 creates a criminal offence for those who negligently pass on HIV while section 270 punishes those who malignantly pass on HIV. Section 269 carries a punishment of up to six months in jail and a fine while section 270 is up to two years in jail and a fine. If you are wondering why there is a difference in the punishment between the sections, it is because section 269 punishes people who may not have wanted to pass on HIV but acted in a way that showed that he could not care less whether or not he infects another person with HIV (negligently). Section 270, on the other hand, punishes people who purposely pass on HIV to other people (malignantly). So, to put it in the context of the above examples, the first example would probably fall under section 269 as Ahmad was just incredibly negligent as to the risks of transmission. It has to be noted even if you have unprotected sex with a HIV infected person, there is a chance that the virus might not transmit. It all depends on the level of viral load present at the time of the unprotected sex. You can read more about it here. The second example would most likely fall under section 270 as the act of pricking someone on purpose is definitely an evil act. The important thing about sections 269 and 270 is that it makes an offence even if the infection doesn’t happen as long as it is likely to happen. This is seen in the wordings of both sections: “...likely to spread the infection of any disease dangerous to life...” The next section which deals with infecting people falls under causing hurt. Causing hurt (section 319) Section 319 reads: “Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.” Now, there are two kinds of hurt in the Penal Code – the “normal” hurt and “grievous” hurt. “Normal” hurt means that it is less serious. “Grievous” hurt is specifically mentioned in the Penal Code and it is basically the more serious injuries such as the blinding of eyes. Transmission of HIV might be classified as grievous hurt as section 320(h) states that: “...any hurt which endangers life...” As you know from the brief blurb on HIV and AIDS given above, HIV is indeed a disease that has the capacity to endanger your life. However, as we couldn’t find any Malaysian case law on this point, this issue remains open for the interpretation of the courts. The punishment for causing hurt is up to a year in prison while causing grievous hurt gives you up to seven years in prison. The next question you may have is, would this be considered rape? Giving someone HIV on purpose is not considered rape As compared to stealthing, which is removing the condom secretly during sex (and you can read about it here), passing on HIV deliberately is not considered rape. For those of you who have been keeping up with our articles, you would know that the crux of rape is the issue of consent and not the presence of violence/intoxicants/drugs. Given the issue of consent, a question was actually posed in the UK case of R v EB as to whether a person is guilty of rape if he has consensual sex without revealing his HIV status? [READ MORE: 7 rape scenarios found in Malaysian law that you didn’t know about] The Court of Appeal decided that: ""Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act."" (at 17) This means that not disclosing your HIV status is not tantamount to rape because they did consent to the sexual activity but there are tons of other laws to look at. Now that we have laid down the law, what does it mean exactly? TLDR; protect yo’self before you wreck yo’self It goes without saying that if you choose to indulge in sex, casual or not, always remember to use protection. If you are in a long-term relationship and would like to avoid using protection, you can always opt to undergo a blood screening with your partner to ensure that the both of you are safe (remember to do this more than once because it takes about 3-6 month from the last exposure for a more accurate result). If you think that HIV transmissions through sex are pretty rare, you might want to think again. Out of the 111,916 cases reported from 1986 to 2016, a total of 33,206 were transmitted from...sex. Out of the 3,397 new transmissions in 2016, 39% were from heterosexual sex and 46% percent from homosexual sex. You can read more about the statistics here and here. At the end of the day, if you think you may have been exposed to a potential HIV infection, stay calm and get yourself some PEP pills. PEP stands for post-exposure prophylaxis and has to be taken within 72 hours of exposure in order to prevent getting infected. You can read more about it here. There are also PrEP pills which are taken by high-risk individuals before exposure to prevent infection. For further information, you can always reach out to the Pink Triangle Foundation at 03 4044 4611 or the Sungai Buloh Hospital (Infectious Disease Clinic) at 03 6145 4333."
"5 Things you didn’t know can get you in trouble at the next Malaysian General Election [Klik sini untuk versi Bahasa Malaysia] OH HEY, IT’S ELECTION DAY! You wake up early in the morning to the singing of birds and golden beams of light. After getting dressed, you put on your best smile of pride and head down to your designated polling station. You’re doing your part in deciding Malaysia’s future, after all, and that is something to be proud of. You arrive at the polling station and – yay! – the queue isn’t too long. And there’s even a nice man offering cupcakes with your favorite politician’s face on it. You gladly accept one, eager to sink your teeth in to his face (and your vote in his ballot box) when a uniformed officer taps you on the shoulder. He informs you that you’ve just broken the law, and you may not be allowed to vote at all. This is one of the 5 following actions – which you may be surprised to learn are illegal – could easily do so! Do take note of them and their respective penalties, and be sure to avoid them at the next Malaysia General Election (GE). We’ve also written a follow-up article on basic Do’s and Don’ts on Election Day itself, so check it out as well! 1. Accepting food and drinks from strangers PENALTY: Imprisonment for up to 2 years, a fine between RM1,000 and RM5,000, and a suspension of your ability to vote for a period of 5 years. If you are approached by someone who offers you food, drinks, refreshments, or any other treats before, during, or after the voting process, we strongly advise against accepting this treat. This is especially the case if that person claims that these treats are tokens of gratitude to you for voting. If the provider does so with reference to voting for a specific candidate, be even more resolute in avoiding them. Why? The Election Offences Act 1954 identifies accepting these possibly corrupt treats as a part of the illegal act of Treating. This is highlighted specifically in the following section of the act: Section 8 of the Election Offences Act 1954 - Treating (in part): “...and every elector or voter who corruptly accepts or takes any such food, drink, or refreshment or provision or any such money or ticket or who adopts such other means or device to enable the procuring of such food, drink, refreshment or provision shall be guilty of the offence of treating.” The keyword here is “corruptly”, which indicates knowledge of ulterior motives behind the provision and acceptance of such treats. However, because it may be hard to ascertain the motives of those who provide these treats at times, it is best to avoid them altogether. Needless to say, accepting money or financial tokens in this context is unacceptable too! 2. Taking ballot papers out of, or bringing them into polling stations PENALTY: Imprisonment for up to 2 years or a fine of no more than RM5,000, if not both, and a suspension of your ability to vote for a period of 5 years. Under no circumstances should you leave the polling station with a ballot paper in hand, regardless of whether it is an extra, used, unused or empty ballot paper. If you find yourself in possession of two ballot papers, even if due to a mistake or oversight, be sure to return the extra piece immediately to the nearest Election Officer, instead of carrying it out of the station. The act of taking a ballot paper out of the polling station is illegal, based on the following segment of the Election Offences Act 1954: Section 3(1) of the Election Offences Act 1954 - Offences by any person (in part): Any person who— (h) without due authority takes out of the polling station any ballot paper or is found in possession of any ballot paper outside a polling station; Additionally, you should be cautious of printing any replicas of ballot papers or documents that are capable of being used as ballot papers during GE, not to mention avoid bringing them to a polling station. The same section of the act states the following: Any person who— (c) forges or counterfeits or fraudulently defaces or fraudulently destroys any ballot paper or the official mark on any ballot paper; (j) without due authority prints any ballot paper or what purports to be or is capable of being used as a ballot paper at an election; Concurrently, when leaving a polling station, be sure to check yourself to see if you have any excess or suspicious pieces of paper either in hand or attached to yourself. 3. Waiting or loitering around polling stations after casting your vote PENALTY: Imprisonment for up to 1 year or a fine of up to RM5,000, if not both. As soon as you are done voting, be sure to leave your polling station in an orderly and legal manner– for example, while avoiding item number 2 above – and only wait for someone beyond 50 metres from the polling station. Loitering or waiting within 50 metres of the vicinity of a polling station is considered an election offence, as explained by this section of the Election Offences Act 1954: Section 26(1) of the Election Offences Act 1954 - Limitation on polling day (in part): Any person who— (e) within a distance of fifty metres from the limits of any polling station— (iv) wait or loiter except for the purpose of gaining entry to the polling station to cast his vote... This translates to say that while you are encouraged to come with your family members and friends to perform your duties as voters, all attempts to rendezvous with them after casting your vote should be made at least 50 metres away from a polling station. Naturally, loitering around after voting isn’t a good idea either! 4. Wearing items of clothing with your favourite party's logo PENALTY: Imprisonment for up to 1 year or a fine of up to RM5,000, if not both. This law is one that may be particularly alien to many, but carries a severe penalty nonetheless if breached – which is why you should make it a point to be informed about it. On the day of the GE, those who visit polling stations – or happen to be present within 50 metres of any polling station – should not do so while wearing items of clothing on which the name of a candidate or the name, emblem or symbol of any political party is printed or imprinted. This includes almost all categories of clothing items and a range of accessories, as given by the following section of the Election Offences Act 1954: Section 26(1) of the Election Offences Act 1954 - Limitation on polling day (in part): No person shall on polling day— (g) within a distance of fifty metres from the limits of any polling station and in a polling station wear, hold or carry any form or type of clothing, head covering, ornament, rosette, water bottle or umbrella on which the name of a candidate or the name, emblem or symbol of any political party is printed or imprinted. A neutral approach to dressing is probably your best bet when visiting a polling station, as such. Plain clothing, with minimal or no prints is a safe choice, lest you wish to attract suspicion and possible trouble! 5. Not giving your employees sufficient time to perform their duties as voters on polling day PENALTY: Imprisonment for up to 1 year or a fine of up to RM5,000. Malaysian employers, here’s some food for thought. Have you been allocating – or are you planning to allocate – sufficient time for your employees to step away from the office and vote on the day of the GE? Believe it or not, failure to do so is categorised as an offence against the law. Specifically speaking, it is a violation of the section of the Election Offences Act 1954 that is highlighted below: Section 25(1) of the Election Offences Act 1954 - Employers to allow employees reasonable period for voting: Every employer shall, on polling day, allow to every elector in his employ a reasonable period for voting, and no employer shall make any deduction from the pay or other remuneration of any such elector or impose upon or exact from him any penalty by reason of his absence during such period. Going against this directive may also be regarded as preventing your employee or a qualified voter to perform his duties, which the following section of the same act identifies as an illegality: Section 3(1) of the Election Offences Act 1954 - Offences by any person (in part): Any person who— (n) obstructs or prevents a voter who is otherwise entitled to vote from voting at an election; Yes, it is important to keep the engines of your businesses running – but it is also imperative that we avoid unnecessary costs while doing, especially in legal terms. If something seems wrong, it probably is Of course, this isn’t an exhaustive list of things you shouldn’t do during voting season, but some measure of common sense can be used as well – such as not taking selfies or having heated political discussions with the person lining up behind you. It’s also a good idea to keep these laws in mind as they can be overlooked by even the most conscientious of voters during the height of election fever, and to remind your fellow voters as well; because voting is a pivotal affair – and we’re sure that nobody wants to get in unwarranted trouble when attempting to do their part in deciding Malaysia’s future!"
"If an event gets cancelled in Malaysia, can you get a refund? You might be an avid event goer, whether you love cultural conventions, marathons, or even music concerts like Jay Chou's upcoming concert in 2018. You love the fact that the organizers worked hard to put together an event for something you care about, and you willingly pay a premium for some of these events because they are amazing. Go to enough of these events and at some point you might have experienced the event being suddenly postponed, or worse – cancelled. Sometimes, you might have let the ticket ""burn""; but if the organizers were nice enough, they offered you a full refund. Unfortunately, this still leaves you stuck with all the preparation done, but you have no event to go to. That's still manageable it was just you getting excited and telling your friends about it. But what if you spent money on the preparations like buying a flight ticket? This was the situation for a lot of participants in the Malaysia Marathon Kuala Lumpur 2017 that was cancelled in September 2017. They did offer participants a full refund, but some runners from East Malaysia who were left with a useless flight ticket were not happy. Especially since the only reason given for cancelling the event was ""unforeseen circumstances which would have impacted the overall event quality"". We may willing to let small amounts go, but what if we were quite committed to the event and it was suddenly called off? You might be surprised that in Malaysia, we actually have laws that govern this kind of scenario. And it turns out... The cancellation might have been outright illegal Your event organiser probably has a list of terms and conditions somewhere on the registration form, or on the ticket itself. The exact line in question should read something like this: ""The organiser reserves the right to cancel or postpone the event without prior notice. The organiser will not be responsible for any loss or inconvenience caused.” You didn't just sign up for an event when you paid the fee, you also signed a contract with the organiser! The above term gives them the right to cancel, and says that they are not responsible – that doesn't sound very fair. But you might not know that we have a fairly recent addition to our Consumer Protection Act 1999 (CPA) on unfair contract terms like this one. Enter Section 24D(1)(e), which basically makes it illegal for the organiser to limit their responsibility for breaking their promises to you in the contract. Section 24D of the Consumer Protection Act 1999 (in part) (1) A contract or a term of a contract is substantively unfair if the contract or the term of the contract—… (e) excludes or restricts liability for breach of express or implied terms of the contract without adequate justification. This basically tells the organiser that if something out of their control affects the event, or if something comes up that makes the event impossible for them to run, then it's okay if they need to cancel the event. An example might be a flood disrupting the event. But if the organiser can't provide a good justification for the cancellation, they might have to pay compensation for any flight and hotel bookings you made because they breached the contract. So how do we decide whether there was a good justification? [READ MORE – Some no refund policies are illegal!] Organisers are only allowed to make certain changes To be clear, not every cancellation will be considered unfair just because the organiser didn't tell the participants beforehand. These are a few of the factors the law will consider to decide whether it was unfair or not: Are the terms and conditions difficult to comply with? Does it give the organiser an unfair advantage over you? Are there excessive penalties for not attending the event? Is the organiser entitled to cancel the event without good reason and without giving a refund? Is the organiser entitled to change the contract terms without asking you? There are many other considerations which you can read under Section 24D(2) of the CPA (you may have to hit Crtl + F and search for it). Generally, if there is no indication that the organiser is trying to take advantage of you, a term saying that the organiser has the right to amend the terms and conditions is still fair. It boils down to whether the amendment affects you unfairly. For example, the organiser can change the venue if they have to, but if they suddenly want to collect extra fees without telling you why… there might be a problem. There's a case on this point from 2014 decided on this between Fairview International School Subang Sdn Bhd v Malaysian Consumer Claims Tribunal & Another. What happened was a student wanted to withdraw from the school, but she needed to give advance notice of one academic term to get her security deposit refunded. Fairview had changed their academic term from 4 months to 6 months at some point, so the mum wasn't too happy about it. ""The provision empowering the school to unilaterally amend the terms and conditions was neither objectionable nor unreasonable. It was situational depending on how the provision was utilised and the resultant contents and effect of the amended term or condition."" – LIM CHONG FONG JC in Fairview International School Subang Sdn Bhd v Tribunal Tuntutan Pengguna Malaysia & Anor The judge said the school changing the notice period was not unfair because it was not done to make it difficult for students to withdraw. In any case, the mum only gave the school 2 days of notice… So she ended up paying for Fairview's legal fees as well as forfeiting the deposit. This was not a case about events, but it does tell us that the organiser has the right to make changes, as long as they're not cheating you. Here's what legal action you can consider According to Section 24E of the CPA, if your event organiser uses terms and conditions that limit their responsibilities or your rights, the burden is on them to prove that they cancelled with good justification. Organisers who use such unfair terms to escape their responsibilities can be punished up to RM250,000 in fines (RM500,000 for repeat offences). On top of that, you might be able to sue the event organiser for compensation. If cancelling the event was unfair to participants, the organiser could be found in breach of contract, which is what entitles you to compensation. You'll get back whatever you can prove to the court that you spent because of the event (such as travel arrangements), but no more than that. Here are two ways you could bring the issue to court: 1. Sue the organiser You can hire a lawyer to bring an action against the organiser, which will involve costs. You could also file for a class action lawsuit with other participants who want to get compensation, and you will share the costs of the lawsuit together. You can learn more about how True Fitness members filed a class action lawsuit when the gym pulled out of Malaysia very suddenly on our other article here. 2. The Malaysian Consumer Claims Tribunal (MCCT) The MCCT is another avenue for consumers to file claims. If you choose this route, you and the organiser will have to argue your case without a lawyer. You'll be guided by a member of the Tribunal, and you have to pay RM5 for administrative fees. You can find out how to file a claim at their website here."
"Malaysian courts got rid of the jury system in 1995 because of a...bomoh?? [Versi Bahasa Malaysia di sini] We’ve all seen incredible courtroom scenes from movies. To Kill a Mockingbird, The Wire, Arrested Development, Philadelphia, Primal Fear. You may remember a panel of 6-12 people in the courtroom called the jury, who look like (and are) normal people. They were the ones the defendant lawyer tried to convince that their client was not guilty and, after 30 seconds of suspenseful music, they read out their verdict: whether the defendant was guilty or not. You might think that this is also how the courts work in Malaysia (minus the suspenseful music), but it may come as a surprise that Malaysia doesn’t have a jury system – instead, the verdict is decided by a judge. It may also be even more surprising to know that we HAD a jury system, but this was abolished in the mid-90’s in favour of the current system. First, we should note that a jury isn’t used for dramatic suspense. The idea is to have civilians participate in the criminal justice system so that the accused people have their peers judging them, which indicates that the system is democratic to a certain degree. A jury system can also function as a method to inject elements of culture and social norms into the criminal justice system. It’s sort of like having your friends keeping you in check. So why did we abolish the jury system in Malaysia? Well, it may have had something to do with a really famous court trial involving a bomoh and a politician... The much covered and notorious Mona Fandey murder case There has been a lot of talk of how our jury system got abolished, and the following murder case was one of the last cases to get a jury trial. This case may have been one of the biggest factors of the abolishing of the jury system. Let’s talk about a lady called Maznah Ismail. Maznah aspired to be a singing sensation, and adopted the stage name “Mona Fandey”. It was a short and less-than-successful career, but she managed to release a self-sponsored album called Diana. She was apparently also a water ballet dancer in her youth. Many people probably think that water ballet is just regular ballet but performed underwater with scuba diving gear. Mona Fandey turned to a different industry after leaving the performing arts scene: being a witch doctor. You know she’s legit if she’s got a doctor in the title of her occupation. For those who are not familiar, the term witch doctor (or shaman, bomoh, et cetera) generally refers to traditional medicine practitioners, and are known to dabble in the occult. Her clientele included politicians (allegedly) and people from the elite crust of the society. Mona Fandey has also claimed to have supplied charms and talismans to politicians from a certain major political party, back in the day. Mazlan Idris, an ambitious poltiician, at the time a state assemblyman for Batu Talam in Pahang, sought to boost his political popularity through supernatural means. Mazlan goes to Mona Fandey, and together with her husband, Mohd Affandi Abdul Rahman, and his helper, Juraimi Hussin, Mona managed to persuade Mazlan into taking part in a ritual that involves “money falling from the sky”. On the day of the ritual, money did NOT in fact fall from the sky. Mazlan did get axed though, and we don’t mean from his political party. Mona Fandey ordered Mazlan to lie down on the floor, and close his eyes, and wait for the money shot. He was decapitated, dismembered and partially skinned. They found him in 18 pieces, buried near Mona Fandey’s home. The day after the murder, Mona Fandey went on a shopping spree, among her purchases were a Mercedez Benz and a facelift. The police found Mazlan’s body on July 2, 1993 and subsequently Mona, her husband and Juraimi were arrested. They were tried in Temerloh High Court by a 7-person jury. The High Court found all three of them guilty and sentenced them to death by hanging. They appealed to the Federal Court, but the appeal was dismissed and their death sentence was affirmed. Their final ray of hope was to receive a pardon from the Pardons Board of Pahang, but the board refused to grant the pardon. The trio were finally hanged at Kajang Prison in 2001. The trial was an extremely publicized affair. Unsurprisingly, the case was covered widely locally and internationally. Mona Fandey was more famous as a witch doctor than she ever was as a pop singer. The sensational nature of the whole thing is said to be a leading cause for the abolishing of the jury system in Malaysia (the High Court trial was in 1993 and the jury system was abolished in 1995). Sensational cases are dangerous because the media that reports these cases can and do influence the thought process of jurors. This has lead to biased verdicts in the past, such as the Aileen Wuornos case where the media at the time painted her in an extremely negative light, and the prosecutors jumped at the opportunity to stack the case in their favour. This media exposure can happen before the jurors are even selected. What was the jury system like in Malaysia before it was abolished? Lord Denning, a famous English Judge, had this to say about juries: Twelve persons selected at random are likely to be a cross-section of the people as a whole, and thus represent the views of the common man. Ideally, if you have a panel of people on the jury that are selected at random, the verdict they deliver is representative of the everyday man. In addition to that, a sufficiently large amount of people in the jury works toward cancelling out bias while also keeping the system democratic. In Malaysia, the jury was only called in for very specific circumstances – for crimes that were punishable by the mandatory death sentence (such as drug trafficking or murder). This is in contrast to the jury system in the United States, where any person accused of a crime punishable by incarceration (imprisonment) for more than 6 months has a constitutional right to a trial by jury. We used to have a panel of 7 people (usually) to serve as the jury. Anyone over 21 years of age are eligible to serve, unless they have an unsound mind (mentally ill) or other forms of disability (blindness, deafness, et cetera). Also, unless you had a really good reason, you can’t say no to jury duty if you’ve been selected because it’s part of your civic duty. What if you didn’t feel like DOING YOUR JOB AS A CITIZEN OF MALAYSIA if you were selected to be a juror? No biggie, you’d just be liable of a criminal offence under Section 174 of the Penal Code: “Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order, or proclamation, proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished...” Yeah, if you didn’t answer what was practically a court summons, you could be fined up to RM 2000, or be imprisoned up to 6 months, or both. Neat. Back to the courtroom. At the risk of oversimplification, the jury’s job is to consider the evidence placed before them and the facts of the case, and with the direction from the judge(s), decide whether the accused is guilty or not. To reach a verdict, the panel ‘retires’ to a chamber where they deliberate in secrecy (insert Chamber of Secrets joke here). Doesn’t it sound like a better idea to have normal people like you and I decide the fate of criminals instead of having possibly out-of-touch judges doing it? Why then was the system abolished? The jury system also has its flaws One major problem with jury trials is that members of the jury can be exposed to media coverage, especially if it’s a high profile case. In this sense, the idea of a fair trial becomes compromised as jury members may not enter the courtroom with an unbiased view of the case. John Maude QC (an English judge) wrote in the Daily Telegraph regarding his criticisms of the jury system that: The jury system costs too much money and time Jurors are not trained in legal matters and are inexperienced in the criminal justice system Jurors may feel afraid to be responsible for sending a person to their death The nature of the system is that it is compulsory, so some people may feel reluctant about participating Some of the jurors may rush their verdict to leave earlier You can read the full quote reproduced on this site. The Malaysian government at the time (circa 1994-1995) cited reasons such as, among other reasons, jurors being not legally trained and easily swayed by emotions and public opinions. There are records of the Parliamentary debate on this issue back in 1994, and the Minister of Justice back then quoted several factors that led to the decision to abolish the jury system: The jurors were easily convinced by the arguments of the defense counsel, jurors were reluctant to attend and do jury duty, and many jurors did not feel like being responsible for a person’s death sentence. This case of Stephen Young shows how bad the jury system can get. A man called Stephen Young was convicted of murdering a pair of newly-weds in Wadhurst, East Sussex, England. He was sentenced to life imprisonment via a trial by jury… who consulted a ouija board to reach their verdict. After this was made clear to the court, a retrial was ordered. . Malaysia isn’t the only country without a jury system It can perhaps be said that neither system is perfect, but it really depends on which works best for the country or legal system in question. Some of our neighbours in Asia still have the jury system in place. Hong Kong, being a former British colony, has a common law system, has followed the practice of having jury trials. Japan implemented the system in May 2009. However, the jury system was abolished in India and Singapore (and Malaysia, of course). There was talk of reviving the jury system in Malaysia in 2012, but nothing really came of it. It seems like as of now, the verdict is still out there."
"If you get an uninvited guest in Malaysia, can you call the police? Imagine that your major cultural celebration is coming soon. For weeks you’ve been planning a dinner party for your friends and family. Despite having to chase some forgetful contractors over and over, everything's turning out pretty okay. The tents are set up at your house to welcome your guests. Soon, the guests arrive, and everyone is having dinner merrily. But midway through the meal, your friends and family are starting to ask each other this question: “Do you know those people at Table 5?” No one knows them!! They turn out to be uninvited guests who decided to crash your party for some free food. Whether you would decide to let them stay to not ruin the festive mood, or ask them to leave, there’s usually only a problem if they refuse to leave, or even tried to steal your belongings. Is there a law that protects you from party crashers in that situation? Yes, whether it’s your dinner party, kenduri, or wedding dinner; party crashers are not only going to get thrown out. Turns out, party crashing is recognized as a crime in Malaysia. While you would be hesitant to turn away your friend who RSVP-ed for 2 but brought his grandparents as well, you’ll need to prepare some solutions to deal with the “guests” that nobody knows. (we’ll get to the solutions at the end) The law says party crashing is the same as BURGLARY You don’t need to get your eyes checked, you read that header correctly. Party crashers = burglars in the eyes of the law. There are a few Sections in the Penal Code which define an area of law called “trespass”. Basically, a “trespass” happens when someone enters or uses a property without the permission of the owner. There are two areas of trespass law, one under civil wrongs (like your neighbour’s new roof eating into your airspace) and the other under criminal offences (like the government coming after a burglar). Party crashing is both a civil wrong and a criminal offence. [READ MORE - Did you know? You actually own some of the sky above your house!] The laws that make it a crime to crash parties are: 1. Criminal Trespass Law: Section 441 - Penal Code Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property; or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”. Penalty: 6 months of jail and/or up to RM3000 in fines Party crashers are covered under this law because they usually come onto private property to steal food and drink. This Section also covers invited guests who try to steal your belongings, so yes you can call the police on them even though they’re invited! To clarify, the person “in possession” can mean the owner or a renter - as long as they’re currently in control of the property. This law applies whether you’re using a building, or you rented a garden or beach. 2. House-trespass Law: Section 442 - Penal Code Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house-trespass”. Penalty: 3 years of jail and/or up to RM5000 in fines This law won’t apply to outdoor events since a building is specified in the legal definition. But it will probably apply to both your house party and your hotel wedding dinner as well (houses and hotels are both “human dwellings”) 3.Lurking house-trespass Law: Section 443 - Penal Code Whoever commits house-trespass, having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit, “lurking house-trespass”. Penalty: 3 years of jail and/or a fine By their very nature, party crashers don’t want you to find out that they’re there, which makes this law apply to them. You’ll note that the penalties are more serious for “house-trespass” because it involves people’s private homes. But there’s an even bigger whammy waiting for party crashers, which is where we come to… 4. House-trespass in order to commit an offence punishable with imprisonment Law: Section 451 - Penal Code Whoever commits house-trespass in order to commit any offence punishable with imprisonment, shall be punished with imprisonment for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years. Penalty: Up to 7 years of prison and/or a fine As mentioned previously, eating your food as an uninvited guest can be interpreted as “theft”. The law is very specific on what theft means; the Penal Code’s definition in Section 378 is: Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft. As you can see, party crashers that were liable under Section 441’s Criminal Trespass above will also be caught under this law. 7 years of jail to steal a plate of mee hoon is no joke. How can I deal with party crashers? In dealing with guests bringing more people along than they RSVP-ed for, we usually make allowances and overplan for unexpected arrivals - just in case. But when it comes to the people you don’t want around, here’s what you can do: Practical Solution No.1 - Ask them to leave Obvious, but worth mentioning because you as the property owner (or renter) have the power to kick people out. If they need a little “convincing”, bring security with you to show them you mean business. Most people want to avoid conflict and will leave, even if they do so begrudgingly. Practical Solution No. 2 - Have a guest list at the entrance This works for bigger events where you might not be able to personally welcome all of your guests. Keep tabs on who’s coming and how many guests they’re bringing. Most people will respect that you’re trying to make sure everyone is taken care of and at least inform you if they’re bringing more guests than expected. It also deters uninvited guests because they’d get caught easily. If these fail, and the crashers aren’t leaving, you might have to resort to the legal solutions below. Legal Solution No. 1 - Call the Police If security came and the uninvited guests still won’t leave, you can consider calling the police. It’s going to cause a commotion and you know it, so you’ll have to decide if the problem is worth the trouble to solve. Legal Solution No. 2 - Sue If you’re hosting a large-scale event like corporate launches, the damage could be large enough that it might be worth suing the party crashers for. You’ll need to show proof of what they cost you, like stolen food, damaged or stolen property, etc. Remember that legal battles take a lot of time and money, so always leave court proceedings as a last resort."
"In Malaysia, poking holes in your condom (or removing it) may be considered rape Most of us accept that using any form of threat or force to have sexual intercourse with another person is rape. Our law agrees with that view; the definition of rape in Section 375 of the Penal Code is a man having sexual intercourse with a woman against her will or without her consent (yep, according to Malaysian law, women can’t commit rape - don’t get any ideas). [READ MORE - What’s considered “rape” in Malaysia?] But in recent times, we’ve had a relatively unheard of scenario, which goes something like this: Two people are having consensual sex with each other on the understanding they are practicing safe sex by wearing a condom. Midway through getting intimate, one person removes the condom without their partner noticing. This scenario is known as “stealthing”, and already you might be disgusted at this kind of move. To be clear, removing condoms or even putting holes in them is not something only males do. We’ve heard of some incidents of both men and women poking holes in condoms. One 43 year old Canadian was actually convicted of sexual assault for poking holes in his girlfriend’s condoms. “Stealthing” and condom pricking might have even happened to you or someone you know - but is it a crime? They’re covered under similar laws since they involve tampering with condom-use, but are they actually considered “rape”? It might not be rape, but it’s still a crime in some countries! People’s opinions aside, it really depends on the law of the country. Mostly it’s because different countries have different systems for the Prosecutor to prove that rape happened. But even if they can’t be classified as “rape”, those acts are usually recognized as another crime. In Switzerland, a man who removed a condom during sex without his partner’s consent was convicted of rape and sentenced to 12 months of prison in January 2017. The charge was changed from “rape” to “defilement”, but he was still sentenced to 12 months of jail. The UK’s law is probably one of the most relevant examples we can refer to, because they have a lot of similar laws to Malaysia. You should note that their definition for rape is different from our own, but we’ll have to skip that detail for now. In the UK, there is a law called the Sexual Offences Act 2003 (SOA). A major element needed to prove the crime is whether a person gave their consent - whether they were a willing participant. Under Section 76 of the SOA, the law lays out two “conclusive presumptions” around consent. A “presumption” in the law is basically a fact that is treated as the truth until proven otherwise. Section 76 says that if: The accused intentionally deceived a person of the purpose of a certain act, Or pretended to be someone else that the person would consent to, Then, the law will make two presumptions that the accused can’t give any excuses to disprove (that’s why they’re called “conclusive presumptions”): The person did not consent to the act, and The accused knew that the person didn’t consent. If you’re still confused, don’t worry. These examples should clear it up. If a doctor says they’re doing a breast examination, but is using it as an excuse to molest someone, then the doctor did not have the person’s consent to touch her. If Hubert has sexual intercourse another person while pretending to be their spouse, Hubert is presumed to not have the other person’s consent to sex. So how does this apply to “stealthing” and holey condoms? If two people agreed to have sex, then there was consent right? Yes, there was consent, but if they had sex on the condition that they use a condom, then the consent became invalid when the condom was removed or pricked. This is recognized as rape in UK law. [READ MORE - Sexual consent given by minors is also INVALID] To use a more everyday example: if you ordered a steak at a restaurant, but the chef hands you the ingredients raw... The chef can say that you ordered a steak all he want, but it was on the condition he would cook it for you! There’s no way you would willingly eat that… While all that might be good for the UK, are “stealthing” and condom pricking considered sexual offences in Malaysia? Nobody knows... The law in Malaysia about “stealthing” is not clear, because... there have not been any reported cases about it. We hope “stealthing” has never happened to you before, but if it has, take this as all the more reason you should report your case for the law to consider. In any case, our Penal Code might already consider “stealthing” a crime. Section 375’s definition of rape includes situations where the victim gave her consent, but her consent was given because she had a misconception of fact (like “we will use a condom”). Section 375(c) of the Penal Code - Rape “...with her consent, when her consent has been obtained by putting her in fear of death or hurt to herself or any other person, or obtained under a misconception of fact and the man knows or has reason to believe that the consent was given in consequence of such misconception” (emphasis added) Put two and two together, and you might be able to argue that if the guy removes the condom, then he was lying to her about using one in the first place, making it rape. This could apply to sabotaged condoms as well, since the other partner didn’t “want” to use a broken condom. The UK law may not be applicable to Malaysia, but it is a persuasive authority of law to our country because of the similarity in legal systems (we got a lot of our laws from them after all). But again, since no cases have been reported yet, only time will tell. We can agree that “stealthing” is not right, but a lot of people don’t realize that it is a crime in many places. Many people didn’t know how to react after it happened to them. Even though the law is not very clear on it now, if you’ve ever experienced “stealthing”, know that your report might be the one that makes a difference to Malaysian law. You can consult a lawyer or groups like Women’s Aid Organization who may be able to offer you support and take legal action."
"Malaysian adventure parks must keep you safe by law. But... how safe? You might love going to adventure parks, whether it’s a wet world, an amusement park, or even just an indoor obstacle course. It means fun times with family and friends, and even yourself. You know what could ruin the mood? Someone getting injured. Accidents happen from time to time in adventure parks, mostly in the heat of the excitement. We might get a bit careless or carried away, but we usually get away with only minor injuries. But what if you suffered more serious injuries in a park? Your carelessness might have played a part, but the rocky floor you fell on also made the injury worse! Shouldn’t the park management have made the floor safe? But exactly how much safer do they need to keep you? Adventure parks actually have a law they must follow, which says that… Adventure parks must keep their premises safe for visitors Under a law called “occupier’s liability”, the park’s management owes you (their paying customers) a certain level of responsibility. They need to make sure their park is safe for you to carry out the activities you paid to be there for. So in the case of a wet world park, they need to make sure it’s safe for you to take the water slide and swim around, but if you hurt your head diving into a pool not meant for diving, that injury is your own fault. [READ MORE - You're also responsible for the safety of people who visit your home] You should note that the park is not automatically at fault when someone gets injured. They only need to take “reasonable care”, which is just taking precautions to protect visitors. This is why roller coasters have harnesses, and lifeguards are stationed near the pools; they can’t guarantee you won’t get hurt, but they’ll do their best to keep you safe. To illustrate, if you get injured on a water slide because it was damaged, the park is at fault; but if you got injured because someone else ignored the lifeguard and went down the water slide while you were still on it, then that person is responsible for your injury, not the park. Note that unforeseeable dangers like a big block of ice falling out of the sky, or even just someone climbing over the safety rails, are outside the responsibility of the owners. There’s a UK case from 1933 (Hall v Brooklands Auto-Racing Club) where an accident on a racetrack injured spectators and even killed two of them. The judges decided that the owners of the racetrack were not responsible because: No such accidents happened in 20 years of running races. The owners had provided safe stands to watch the race in. As spectators who chose to go beyond the safety area and watch right next to the track, they took on the risk themselves In our local case of Sathu v Hawthornden Rubber Estate Co Ltd, Sathu’s cattle trespassed onto Hawthornden’s rubber estate and all died due to the weedkiller sprayed. Hawthornden was not held responsible because it was not foreseeable that the cattle would come to graze in their rubber estate (if it was an open field, the decision might have been different). But what about children? They might not be old enough to understand some things are dangerous! Are the adventure parks bound to protect them? Yes. Children must be given extra care Ahh... Children, the eternal joy (and headache) of parents. Children are frequent visitors of adventure parks, which have potential dangers all over for them. Mostly because they want to try everything, go everywhere, but may not be aware of the dangers around them. The law actually imposes extra responsibility on property owners to keep their place safe for children. For example, in 1982, a Malaysian 10 year old actually climbed an electric pole to free a trapped bird - he was electrocuted. There were no warning signs, barbed wires, or spikes put up to stop the child from climbing (Lembaga Letrik Negara v Ramakrishnan). The local government in charge of the pole was held responsible for having a dangerous electric pole within the reach of children. On the other hand, once precautions have been taken, the responsibility falls on the parents to take care of their child. In Phipps v Rochester Corporation, a 5 year old was injured when he fell into a trench that Rochester Corporation was working on. The judge said that children are not expected to behave like adults, but the parents were responsible for the safety of little children, and therefore Rochester Corporation was not responsible. An example in adventure parks would be the height restrictions for certain rides the park management puts up for safety. The park should take precautions to keep the children safe, but ultimately the parents are responsible for their children’s safety. Safety first! Our objective at adventure parks is to have fun - safely. There’s no fun in getting hurt when you’re trying to have a good time, so put safety first and take care of yourselves when visiting adventure parks. The above are rules of thumb on safety duties the adventure park management owes to visitors, but as you can see with the complex exceptions above, the question of who’s responsible is always going to be on a case-by-case basis. Now that you know a bit more about occupier’s liability, you might go to your lawyer one day and press charges for an adventure park accident… Only to have your lawyer laugh at you… These responsibilities of the park management might not be the issue at all, because of the waiver form you signed before going in… What’s the legal effect of the waiver form? We’ll explore that in Part 2."
"What is an unnatural death and why does the PDRM get involved? Dying is not a fun affair (although there’s the word ‘fun’ in ‘funeral’). On top of dealing with the death itself, there’s a bunch of formalities to sort out. This article is meant to be a rough guide to the things that you have to do if someone close to you dies. It’s fairly straightforward, as you’ll find out, but what about unnatural deaths? What happens if someone dies in an accident, or gets murdered, or commits suicide? This is where things get slightly complicated. The information below is probably not exhaustive, so please don’t kill (ha haaaaa) the author if anything’s missing. What do you do in a case of a natural death? A natural death is where a person dies due to interruption or failure of bodily functions from ageing or disease, and the police (usually) won’t investigate the death. Let’s talk about what to do in case of a natural death (knock on wood). If a loved one dies of natural causes, one would be required to report the death to a death verification agency (usually hospital, police stations or sometimes the local council) Obtain a copy of death registration/burial permit JPN LM02 form from said death verification agencies and register with the appropriate supporting documents (listed below) Once application is submitted, a validated copy will be provided as Burial Permit for burial arrangements Application will automatically be registered with the National Registration Department, and one only needs to visit one of the branches to collect the death certificate The supporting documents needed are: the original MyKad or identification document of the deceased, MyKad or identification document of the informant (person who reported to the death verification agency), and the certification by a medical practitioner as to the cause of death. What about unnatural deaths? Is there a separate thing to do? Unnatural deaths In cases of unnatural deaths, section 329(1) of the Criminal Procedure Code gives us situations where the police will do so: (a) that a person has committed suicide; (b) that a person has been killed by another, or by an animal, or by machinery, or by an accident; (c) that a person has died under circumstances raising a reasonable suspicion that some other person has committed an offence; (d) that the body of a dead person has been found, and it is not known how he came by his death; or (e) that a person has died a sudden death, Basically they will have to come investigate if they receive information that the death is unnatural. That includes suspected homicides, suicides, sudden deaths, accidents, and when the death is in mysterious circumstances. An autopsy will be done by a Government Medical Officer to find out the cause of death. The police will also report this death to the Magistrate who is in charge of the area where the body was found. Who is a Magistrate? A magistrate is a judge who presides over the Magistrate’s Court, a court that is relatively low in the hierarchy of courts. One of the Magistrate’s duty here is to see if an inquiry of death is required. An inquiry of death is basically a hearing to try to find out the general nature of the death. Section 333(3) gives us situation(s) where an inquiry is NOT needed. Here’s Section 333(3): It shall not be necessary for the Magistrate to hold any inquiry under this Chapter or to make any report under subsection (1) if any criminal proceedings have been instituted against any person in respect of any act connected with the death of the deceased or such hurt as caused the death. A full inquiry is not required if any criminal proceedings has started against any person who is connected to the death in question. This is when the police arrests a suspect that, for example, is related to the murder of the victim. Section 333(1) states that it is possible that if the Magistrate is satisfied with the cause of death without holding an inquiry (suspicious death), after which he needs to report to the Public Prosecutor. He/she needs to include reasons for being satisfied with the cause of death and pass all the documents and materials related to the case to the Public Prosecutor as well. So… how’s a death inquiry really like? What does a death inquiry involve? Death inquiries are technically hearings, but they’re not like your average trials. The process is less formal, and it may not necessarily be held in a courtroom. An inquiry of death should start A.S.A.P after the death is reported to the Magistrate. There should also be minimal numbers of postponements in between inquiry sessions. The place where the inquiry held is usually open to public but the Magistrate in charge may exclude a certain person or multiple people, at any stage of the inquiry, on grounds of public policy or to speed up the inquiries. They are also not criminal trials; there is no accused party and no complainant, and there is no defense team. There are only ‘interested parties’ such as the next of or personal representative of the deceased person, a representative of an enforcement organization (for example: the police) or government department appointed to attend the inquiry, or anyone who the Magistrate deems to be a properly interested person. A lawyer representing an interested party may be present during the proceedings but he/she is not there to defend anyone, merely to function as an observer. The counsel does not have a right to speak unless expressly permitted by the Magistrate. The normal rules of a trial and rules of evidence do not apply in inquiries of death. At the conclusion of the inquiry the Magistrate should have found out the cause of death. After hearing the evidence of witness regarding the circumstances surrounding the death and considering all the documents produced during the inquiry, a Magistrate may conclude that the death was due to, among other things: an accident caused by the deceased’s own fault; by events beyond human control; or due to the actions of known or unknown persons The Magistrate can come to the verdict that the deceased committed suicide, if it is apparent enough. Here’s a curious thing: the Magistrate may deliver an open verdict, a.k.a. “I’m not sure myself, dude,”. Section 341A of the Criminal Procedure Code provides that the verdict in an inquiry of death is subject to revision by the High Court. Let’s review some things To reiterate, a death inquiry doesn’t happen for every death that’s found. It is usually only operates when there is a unnatural or suspicious death that the Magistrate wants to try to find how the death happened. The most important thing is take from this article is if a death occurs in the house, even if natural, call the police as soon as possible. They will guide you on the procedural side of things."
"If your tenant doesn't pay the electric bill after renting, what can you do? It’s the end of a two year tenancy and it has been great. You never had issues with your tenant, he always paid his rent on time, never called for repairs, and your house is also in a relatively good condition. You wish your tenant never stopped renting because as far as tenants go, he was one decent bloke. So, you happily clean up the place and put up advertisements to find a new tenant. You take a day off from work, gather some cleaning supplies and head over to the house to give it a good rub down. After arriving, you reach out to switch on the lights. You flip the switch...nothing happens. Huh, maybe that light is spoilt. You reach over and flip the switch for the fan...nothing happens. By now, you are pretty confused...was there a power trip or something? At that moment, your phone buzzes and you notice that you have received a text message from TNB. TNB says that you haven’t paid your bill in months and they have cut your power off. Your heart stops and you now realised that you are hundreds of ringgit in debt to TNB and...you already refunded the deposit to your ex-tenant (that scoundrel!). In such a situation, what can you do? Well, if you are already in this situation, there is nothing much you can do. However, for future reference, this is what TNB allows you to do. [READ MORE: Renting in Malaysia? Here are 5 common legal problems you can avoid] You can actually change the account holder’s name So what you can do to prevent yourself from getting sued by TNB is to change the registered account holder’s name to your tenant’s name. This way, if there are any bills that are unpaid, TNB goes after your tenant and not you. What this means is that if you change the name to your tenant’s name, TNB would not hold you liable for any failure to pay the electricity charges. The best part is, TNB allows either the landlord or tenant to change the registered account holder’s name as long as you come with the proper documents. It is super simple to change the registered account holder’s name and you can even do it online here. If you like to kick it old school, you can download the necessary forms here and here (one form is to close your current account and the other is to open a new account for your tenant). After you fill it up, you must bring it to the Customer Service Centre (Kedai Tenaga) where your account was registered. Aside from the documents and forms mentioned above, you must also bring along: A letter of consent from the existing account holder (if it’s not you) RM10 for stamp duty fees RM3.20 for processing fees A 2 month deposit payable to TNB (the amount differs according to what kind of premises it is e.g residential, commercial, etc.) Upon the completion of the tenancy (when your tenant stops renting), you can repeat the same process to change the name to the new tenant’s or your own name if you decide to stop renting. [READ MORE: 5 important clauses you need to look out for in a Malaysian tenancy agreement] Now that you know this, you can protect yourself from unwanted debt by making sure that your tenant registers himself as the account holder before moving in. However, for those of you who already have tenants and are groaning because your name is still registered with TNB, do not fret because… You can change the name anytime! If your tenancy is currently ongoing and you are a little worried that your tenant might make off without paying their dues, you can still apply for a change of name with TNB. The same kind of documents will be used. If you choose not to change the name, you can still register for a myTNB account to monitor your tenant’s payment habits. This leads us to a more important question you might have. What can I do if my tenant doesn’t pay the bills If you managed to change the registered account holder’s name to your tenant’s name, then all is well and good. You just have to sit back and watch them...in the dark. If you did not change the name and there are now outstanding amounts, you can request for a shutdown of electricity from TNB. This means that you request for TNB to temporarily shutdown the electricity at your rental property in order to uh...nudge your tenant to pay up. However, it is highly advisable (even by TNB themselves) to implement a change in name if you ever rent out your property because why take the risk of legal actions for unpaid bills? Aside from that, if you are the registered account holder, you will be found guilty if your tenant violates the Electrical Supply Act 1990 whether or not you committed the offences or were even aware of them (an example is tampering with the meter). Now that you know all this, go free and sleep well in the thought of zero debts to TNB (other than your own). For further information, you can contact TNB through calling 1800 88 5454, emailing tnbcareline@tnb.com.my, submitting a query through their online form or even heading down to their Customer Service Centre (click here for their locations). [READ MORE: Can the condo management in Malaysia really enter my unit and take my property?] [READ MORE: Living in a Malaysian apartment - who is responsible when things break down?]"
"In Malaysia, you can sue for a holiday gone wrong thanks to a case from 1969 [Note: Article was originally written in December 2017] It’s the end of the year. You know what this means (bonus season!). Aside from it being the season of extra pay and lesser jams, it is also the season of holidays. Most of you out there would be busy planning year-end trips with family and friends. Maybe you browse online for good holiday spots and packages or maybe you kick it old school and browse brochures. Whatever your poison is, you soon stumble across this amazing holiday package. It sounds amazing – sandy beaches (or craggy mountains, if that is your calling), amazing food and friendly locals. It sounds like a holiday from the heavens and without hesitation, you sign up for it. You reach your holiday spot andddddd...well, the hotel was supposed to be 5 stars but you notice leaking walls and mouldy bedsheets. The hostess is rude and doesn’t speak your language and the surrounding area is a far cry from the brochure pictures. The word “disappointment” doesn’t even begin to cover how you feel. Boiling mad, you call your agent up and demand for a refund and on top of that, you demand that he pays for your feelings of disappointment, distress, and annoyance. Your agent tells you that he will refund you the cost of your holiday but you can hear him biting down a laugh when he says that he will not pay for your hurt feelings because there is no such thing in law. Actually, he is very much mistaken. You are allowed to sue for your hurt feelings all thanks to Mr. Jarvis’ misfortune with the Swan Tours. Swan Tours offered Jarvis a magnificent time Mr. James Walter John Jarvis was your average 35 year old (with a really nice name and not Iron Man’s sidekick) solicitor working for the local authorities in the UK. In August of 1969, he decided that he needed some good ole’ self-love time and decided to book himself a Christmas holiday and started hunting around for good holiday packages. He signed up for this holiday after reading a brochure issued by Swan Tours Ltd and was attracted by the description given. The holiday was to take place in Mörlialp, Giswil, Switzerland and the description given to Mr. Jarvis was nothing short of wonderful. Some of the attractions include: A house party at Hotel Krone with an amazing host that speaks English A welcome party upon Mr. Jarvis’ arrival Afternoon tea for 7 days Swiss candlelight dinner Fondue party A yodler during the evenings A farewell party at the house party’s bar, Alphütte Bar Beautiful alpine scenery with good ski runs Skis for rent Based off this brochure and being a skiing enthusiast, Mr. Jarvis signed up for a fifteen day skiing holiday complete with a ski pack for the grand sum of £63.45. So, Mr. Jarvis packed his bags and prepped himself for an amazing Christmas and New Year since he was due to fly to Zurich on the 20th of December 1969 and return to Gatwick on the 03rd of January 1970. Can you imagine spending Christmas in a place like Mörlialp? If you are chuffed based off the picture, imagine it during Christmas and just think of how excited Mr. Jarvis would be. A skiing enthusiast, a man heading to a house party, a good two weeks off work...it is utter bliss. Alas, his promised holiday was not meant to be because… But it was a magnificent...let down Mr. Jarvis faced plenty of disappointment such as the hotel being far from the actual skiing venue. Aside from that, he expected the house party to have about 30 guests but on the first week, it only had 13 people and on the second week...there was no one there but Mr. Jarvis and the host. Plus, even though it was stated in the brochure that the host could speak English, in actual fact, he couldn’t. So, Mr. Jarvis was stuck in the hotel alone during the second week with no one else who could speak English. Aside from that, the hotel bar was largely unoccupied and was only open once a week. Instead of a proper afternoon tea, he got potato crisps and dry nut cakes. Instead of a proper yodler, he got a man who came over in normal work clothes and sang five songs quickly before leaving. The cherry on top of everything was the fact that instead of actual skis, Mr. Jarvis got...mini skis. For reference, mini skis are only about 3 feet (about 92cm) long while an average 6 feet tall person requires at skis at least 170cm long. When he did get proper skis, the boots were rubbed his feet and he couldn’t continue skiing. We know that this sounds like a load of small things that could be overlooked and the judge in the case acknowledged such a fact but he also said that: “They appear trivial when they are set down in writing, but I have no doubt they loomed large in Mr. Jarvis's mind, when coupled with the other disappointments.” – Lord Denning, Court of Appeal, October 1972 No doubt that in our every day lives, each of things happening on its own would not amount to a great disappointment. It might leave us annoyed and slightly frustrated. However, when you put it in the context of a holiday and the fact that it happened one after the other...you would get really mad. So, Mr. Jarvis decided to sue Swan Tours for his bad holiday (title of a next blockbuster flop) for breaches of both implied and express terms of the contract and he also claimed that there was a total failure of consideration (because the holiday was nothing like the statements on the brochure) on Swan Tours’ part and because of that, he also lost the benefit of his two weeks holiday. Therefore, Mr. Jarvis actually claimed for the following: £63.45 for the money he paid for the holiday £93.25 for his salary during the two weeks General damages for inconvenience and loss of benefit The next question is, did the courts give him all that he asked for? He got a part of what he asked for At the first round in the Ilford County Court, the judge only awarded Mr. Jarvis £31.72 which is wayyyy less than what he claimed for. This is because the judge decided that the proper way to measure damages was to deduct the cost Mr. Jarvis paid for his holiday from the actual cost of the holiday he received. He also further stated that no other damages would be considered. Since he thought that Mr. Jarvis only received half of paid holiday, he gave him back half in damages. Mr. Jarvis then appealed the case to the Court of Appeal and this was what the court said: “It has often been said that on a breach of contract damages cannot be given for mental distress...I think that those limitations are out of date. In a proper case damages for mental distress can be recovered in contract, just as damages for shock can be recovered in tort. One such case is a contract for a holiday, or any other contract to provide entertainment and enjoyment.” – Lord Denning, Court of Appeal, October 1972 Basically what Lord Denning said was that he was aware that damages can never be given for your mental distress caused by a breach of contract. However, he called that law outdated and proceeded to decide that damages for your mental distress can be claimed especially when the contract was meant to provide entertainment and enjoyment. With all this in consideration, the judges in the Court of Appeal increased the amount of damages up to £125, which was a culmination of all the damages that Mr. Jarvis appealed for deducting what he actually received. To make it easier to understand, this was probably how it went down in formula form: (Cost paid for the holiday + damages for inconvenience) – cost of holiday actually received = damages However, it is important to note that there is no set formula to follow because the court just took a broad view in approaching the matter. This was best summed up by what Lord Edmund Davies said: “The court is entitled, and indeed bound, to contrast the overall quality of the holiday so enticingly promised with that which the defendants in fact provided.” – Lord Edmund Davies, Court of Appeal, October 1972 Now, comes the golden query… Has this law been used in Malaysia? The answer is...yes. This is the moment you guys run over to your bikinis and Hawaiian shorts and scream in joy because you know that you can sue if you ever got a bad holiday. Some digging revealed that there are actually several cases where the courts have applied the principle established in Jarvis to allow Malaysians to claim for damages over their bad experiences. For example, in Malaysian Airline System Berhad v Tarn Chin Siong & Ors, the family had specifically booked seats at the front of the plane and paid a premium price for it due their sensitivities to the engine noise. The family happily prepared for their holiday and toodled over to the airport on their departure day. When they approached the check-in counter, they were issued tickets for the seats next to the...engine. Wait. What? So, the family tried to explain that they had booked their seats earlier and had even paid extra for it but the staff were unresponsive to their demands. They ended up having to run around the airport trying to solve the problem and had to have dinner on the floor. To add insult to injury, all their hard work was for nothing because their seats were not changed. The family then sued and stated that their trip got off to a bad start, their flight was immensely unpleasant and the ill effects of all this spilled over into their holiday and ruined it. Relying on Jarvis v Swan Tours, the judge allowed the family to claim for damages. This is because the airlines’ negligence which caused the breach in contract (failure to provide the reserved seats) had caused the family frustration and embarrassment. entitled “The failure and/or negligent in not giving their reserved seats is a breach of contract with them and this has resulted in frustration, embarrassment, mental and physical distress, inconvenience and loss of memorable holiday. The damages, therefore, are recoverable.” – Mohd Zawawi Salleh JC, Court of Appeal, July 2009 Now that you know this and since it is holiday season, go forth with a happy mind and book the dream holiday you deserve (or get the money back at least)."
"What powers do the Auxiliary Police (Polis Bantuan) have in Malaysia? We’ve all (mostly?) seen the friendly neighbourhood Auxiliary Police (Polis Bantuan) at LRT/MRT/other train stations and at malls – you know, the guys who kinda look like cops, but you see the words “Polis Bantuan” when you look at their uniform closely. We also probably wondered what they actually do and if they’re actually legit PDRM. How are they chosen? How are they trained? Can they carry firearms? What’s the difference between them and the actual PDRM? Here’s an overview with the basics of everything you need to know about the Auxiliary Police, starting with... 1. Powers and Duties So just to make it really clear, an Auxiliary Policeman is NOT an overglorified security guard. They’re actually appointed and governed under sections 47 – 50 of the Police Act 1967 for the purpose of providing additional policing in areas where regular police patrols may be inadequate, and can be deployed to support PDRM officers in certain scenarios. Generally, a private establishment (such as a mall) “employs” the Auxiliary Police by making a formal request to the PDRM to gain their services, and provide them with a salary. According to the PDRM portal, the general rule is that the auxiliary police’s employment contract is on a month-to-month basis, subject to agreement with whichever establishment they work with. Regular tasks they do include: Patrolling and watchman duty Crowd control, body/vehicle searches Protecting and escorting their employer’s property Preventing crime Detecting and arresting offenders The main duties of the Auxiliary Police are to protect the property of their employer and prevent criminal activity in areas they’re posted in. This means that they effectively function as regular police in their employer’s property. As mentioned above, they also work alongside regular police, so how do they prevent a “turf war” when it comes to safeguarding the public? Great question. Paragraph 20 of the Perintah Tetap Ketua Polis Negara (PTKPN) A501 states that when an Auxiliary Police collaborates with a regular police officer, the Auxiliary Police has to be lower in rank than the police officer. In additon, paragraph 6.5 states that the highest rank of any Auxiliary Police cannot be higher than the highest rank of the Ketua Polis Daerah in any given area. 2. Appointment of Auxiliary Police Section 47(1) of the Police Act 1967 gives us: The Inspector General may, with the concurrence of the Minister, appoint or promote any person to serve in the Auxiliary Police as a senior auxiliary police officer with the honorary rank of Superintendent, Deputy Superintendent, Assistant Superintendent or Inspector, and may prescribe the area in which he shall serve. The Inspector-General of Police, with the green light from the Home Affairs Minister, can appoint any person to serve a senior auxiliary police role with the honorary rank of Superintendent, Deputy Superintendent, Assistant Superintendent or Inspector. These people will typically be existing police officers or people who have gone through training. Section 47(2) sets out the appointment of junior auxiliary police: A Commanding Officer or any police officer authorized by him in that behalf, may, with or without written engagement, appoint or promote any person to serve in the Auxiliary Police as a junior auxiliary police officer with the honorary rank of subinspector, sergeant-major, sergeant or corporal or as an auxiliary police constable, and may prescribe the area in which he shall serve. A Commanding Officer or any police officer authorized by said Officer can appoint any person (after training) to be a junior auxiliary police. Just like the appointment for senior Auxiliary Police officers, people who are existing police officers or people who have gone through training will be appointed. I’m sure many are curious about how the Auxiliary Police are trained. We’re gonna find that out next. 3. Training If anyone was in the Police Cadet in middle/high school, you’d probably remember the times you had to do march training and all the other stuff. It’s similar, but yet different, for Auxiliary Police prospects. They go through a 9-week long training regimen at selected Pusat Latihan Polis. Their employers are responsible for their accommodation, food, tools/equipment and other things needed for the training. The Bukit Aman Training Facility supplies the training syllabus and they are reviewed time to time to ensure efficacy and relevancy. Employers of Auxiliary Police officers must also supplement their officers with courses and additional training over time. They may also contact the Auxiliary Police body itself to find out if there’s any suitable training regimens to improve their “troops”. An example of the training schedule can be found here. Any legitimate policing organization has a code of conduct. These are given in Paragraphs 26-28. Paragraph 26: any one auxiliary police officer are subject to the code of conduct that also govern regular police officers that are of the same rank Paragraph 27: employers are responsible for the wrongdoings of their auxiliary officers and they must report any disciplinary actions taken to the relevant Commissioner/Chief of Police of State. Any further actions are discretionary. Paragraph 28: The IGP can, at any time, take away the powers of a senior officer of Auxiliary Police and also demote him to a lower rank. Concurrently, the IGP can also at any time take away the powers of a lower Auxiliary official or an Auxiliary constable. As mentioned in the intro, we’ve seen the Auxiliary Police carry guns, so... 4. Firearms, handcuffs and batons Here’s the fun part: Yes, they are allowed to carry firearms, handcuffs and batons. According to Paragraph 25, auxiliary police are authorized to carry firearms that are registered under their employer’s name. There’s a catch though – they can only carry firearms when they are on duty, and only in areas specified by their employer. It’s a no-go otherwise. This same principle applies to batons and handcuffs. How far do we need to obey the Auxiliary Police? Since the Auxiliary Police officers are employed privately, they can only exercise their powers within the boundaries of the property where they are assigned. They have no powers outside of said boundaries and locations. So there is no need to be afraid of them if you see them on the street… not that you need to be afraid of them where they work either, unless you’ve done something criminal."
"Are Malaysian Telcos responsible for the Lowyat data breach? Can we sue them? It was 19 October 2017. Chances are that this was a normal day for you, scrolling through Facebook, laughing at funny posts or raging at the latest ridiculous thing a politician said. And then you come across this news – Lowyat.net reported that someone tried to sell the personal data of 46.2 million Malaysian mobile phone numbers and 81,309 entries from databases of medical practitioners on their forums. The data was apparently stolen back in 2014 and included sensitive information such as full names, IC numbers, addresses, SIM card information, you name it. Anything you gave your telco, it was there. What probably happened was that someone who had privileged access to the information stole it. The data is very valuable to some people, like salespeople, hackers, identity thieves, and even for scammers to set up what’s called social engineering to further steal confidential information. Data breaches have been happening over the internet for a while, such as the PlayStation Network data breach. If you're keen to know, this link about data breaches of the past might be of interest. So did our telcos sell our private information? No, apparently it was stolen by a bunch of employees from a currently unnamed company. According to The Malay Mail, the authorities are still investigating and have traced a few individuals as the culprits. “It’s most likely the work of several staff who took advantage of their access to such sensitive information and we believe the company itself is not involved in the crime… We believe the information was stolen while the data transfer process was being performed.” - Communications and Multimedia Minister, Datuk Seri Salleh Said Keruak - as quoted by The Malay Mail (print version 17 November 2017, page 3), emphasis added by ASKLEGAL But the data was under their care! They should be responsible! At this point, so much information has been stolen that a lot of us are wondering whether we need to change our phone number, or even our IC number and address! (hopefully not our face as well) Lowyat.net has clarified that the information is not enough to clone our SIM cards, but the larger concern is that our IC numbers tell people a lot of information about us – our exact date of birth, the state we were born in, as well as our gender. We're made easy pickings for marketers who want to target certain groups of people, which is more of an annoyance than security concern. But Lowyat.net also pointed out that a lot of institutions still use our date of birth as a security question. Some banks also ask for our IC number for verification, so… yeah. We are still waiting on the investigation and what measures will be taken by the government This is as of 22 November 2017, which is a taking a long time for reasons Lowyat.net explains here. A lot of us might be thinking: Aren't our telcos responsible for guarding the data? Yes, they are. But whether we can sue them for it depends on the outcome of the investigation. AskLegal interviewed Ian Liew, Associate at Donovan & Ho to find out how Malaysian data protection laws work, and whether the companies involved in the breach will be held responsible. According to him, the Personal Data Protection Act 2010 (PDPA) requires companies to meet a Security Standard in protecting our personal data. While the telco will get into trouble if they don’t fulfill the security requirement, the other side is that the company is not responsible if data thieves still get their hands on your data through an elaborate scheme. (we'll get to the details below) [READ MORE - You can use the PDPA to stop telemarketers too] Companies that collect personal data must protect it as well Ian explains that the PDPA binds companies that collect our personal data to comply with 7 major principles and practical standards to protect the data. The key principle we're looking at is the Security Principle (Section 9 of the PDPA). It basically binds companies to protect your data from being misused or disclosed without authorization. Companies that abuse your personal data or fail to guard it can be heavily fined (up to RM300,000) and the people responsible can be jailed up to 2 years under Section 5(2) of the PDPA. It doesn’t end there, because Section 9(2) further states that the company must guarantee that they provide sufficient security to protect your data from hackers as well as from their own employees. This can include technological security measures as well as checks to make sure the staff who have access to the data are competent and trustworthy. Section 9(2) - Personal Data Protection Act 2010 Where processing of personal data is carried out by a data processor on behalf of the data user, the data user shall, for the purpose of protecting the personal data from any loss, misuse, modification, unauthorized or accidental access or disclosure, alteration or destruction, ensure that the data processor— (a) provides sufficient guarantees in respect of the technical and organizational security measures governing the processing to be carried out; and (b) takes reasonable steps to ensure compliance with those measures. The Security Principle also says that the extent of security needed depends on how sensitive the data is. For example, your credit card information need to be more secure than your IC number, which also needs to be more secure than just your name. The Security Standard binds the company's third party contractors as well A lot of companies engage third parties to outsource or smoothen their operations, which tends to involve exchanging our personal data with them. You might remember a tick box when filling forms giving the company permission to share your information with their marketing partners or another similar company. Ian explains that these third parties must also fulfill the security requirement, failing which the company and the third parties could both be held liable. To fulfill the responsibility given under Rule 6 of the Personal Data Protection Regulations 2013, companies need to develop and implement a security policy for both their employees and third parties to follow. This security policy must comply with the Security Standard in the Personal Data Protection Standard 2015, which outlines some measures that must be taken like: Registering and regulating all employees with access to personal data Limiting entry into data storage sites Protecting their computer systems from malware attacks or unauthorized access You can find out more about the standards at the Department of Personal Data Protection's website. Ian tells us that they are very easy to read and understand. (not like AskLegal, right?) So in the end, can sue or not?? Jokes aside, as we briefly mentioned earlier, we still need to know what the authorities find from the investigation. Ian says it depends on the following factors: ""If someone is contracted to handle the data, the company must get a guarantee from the employee or contractor that they will implement security measures and make sure that they are complied with. As long as the company has done so, they should not be held responsible. But if a third party gained unauthorized access to the data, the company must prove that they complied with the Security Principle mentioned above, and still couldn't stop the third party. If they can't prove this, the company will be responsible."" – Ian Liew in e-mail interview with ASKLEGAL Basically, we need to find out what really happened before we know whether we can file a negligence suit against the companies involved. There's a legal doctrine called res ipsa loquitor that basically says if the telcos were under control of our personal data, the very fact that our data was exposed could raise an assumption that they negligent (and the telcos will have to prove that they were not). Further, abusing personal data and non-compliance with the Security Standards is a criminal offence punishable with 2 years of prison and/or a fine of up to RM300,000. So if the data breach has resulted in some weird records popping up under your name, you should report the incident to the Department of Personal Data Protection over here. Here’s what Ian had to say about some further precautions you can take. “You can suspend or terminate any affected accounts with your telco provider. Look out for unexplained activities on your number by checking your telco statement, like suspicious text messages or phone calls being made or received. If there are any suspicious activities, alert your telco provider and consider getting a replacement SIM card or number.” - Ian Liew, in e-mail interview with ASKLEGAL How do you know if your data has been exposed? Tech blogger Keith Rozario had put up a site called SayaKenaHack.com for Malaysians to check if they have been compromised. But it has since been blocked by the Malaysian Communications and Multimedia Commission because it could further compromise Malaysians. According to Lowyat.net founder Vijandren Ramadass, the site could be abused because the entire database of leaked info is available on it. “While MCMC has not confirmed nor denied the block, the sheer amount of information on the side could subject it to abuse. Rozario is a good guy, who set up the site for a noble purpose, but that does not stop unscrupulous individuals from abusing the data,” - Vijandren as quoted by The Malaysian Insight In any case, the data breach is so big that considering Malaysia's population is only 31.7 million, the 46.2 million users affected probably includes you. Here are some precautions you can take to stay safe when data breaches happen: 1. Change your passwords This one doesn’t apply to the data that was sold on the Lowyat forums, but there have been other breaches in the past where the passwords of millions of accounts were pasted on the Internet. If you have been compromised before, it’s best to change your passwords and make sure you don’t use the same password for multiple services. Here’s a website you can use to check whether your email has been compromised before. 2. Replace your SIM card The guys at Lowyat.net are urging telco companies to replace the SIM cards of all affected customers, especially for those of us who haven’t changed our SIM cards since 2014. Take the initiative to secure yourself and don’t wait around for your telco to contact you. 3. Look out for “social engineering” scams The exposed information can be used by scammers to trick you into trusting them. Here’s an example: you might get a call from your “bank” asking for something and giving you details like your phone number and address to make you think that they’re really your bank. Never reveal your personal details or sensitive information through phone calls. Scammers have ways to spoof their number to look like they are your bank, “Bank Negara”, or even.. the “PDRM”. Be wary of suspicious communications you didn’t initiate and take note that the authorities and your bank will never ever ask for sensitive information like your PIN and TAC codes, or ask you to transfer money to another account for some reason… Immediately end the call and contact the real authorities’ official number to verify the situation. The scammers are usually very elaborate and use psychological tricks to trip you up. They take advantage of the fact that you’re probably thinking that it won’t happen to you - until it does. You can read about the infamous “Macau scam” that we’ve covered before to see how the scam plays out."
"Can a company sue me in Malaysia if I turn them down after signing the letter offer? It’s been a long two months. Every job application you have sent out has gone unanswered. You are so desperate, you even start applying for jobs that are out of your scope and experience. Finally, you get a call back for an interview. It’s not a job that reallyyy suits you but at this point, you gotta do what you gotta do to earn a living. So, you suit up and head over. Lo and behold, you landed the job. When they handed you the letter of offer, you sign it without hesitation because it is just a letter of offer, right? Before you are due to start your new job, you receive another offer from the company of your dreams. You immediately sign the letter of offer from that company and call up the first company to tell them you are turning them down. Enraged, the company tells you that they are going to sue you for going against the letter of offer but can they actually do that? Before we dive into whether or not they can do that, a letter of offer is technically a contract but... How is a contract formed in the first place? In Malaysia, contracts are governed by the Contracts Act 1950 (“CA 1950”) which tells us how contracts can be formed. Section 2 tells us that contracts are formed when someone makes: A proposal to another person; and The other person accepts it; and This forms an agreement would be formed. An agreement which is enforceable by law is known as a contract. Okay. But what in the world is a proposal? A proposal, as defined by the CA 1950, is when someone agrees to do something or prevent from doing something in order to get someone else to agree to that act or abstinence. It sounds very confusing but let’s draw up an example for you. Ali tells Baldeep that he will wash Baldeep’s car for RM10. Ali tells Baldeep that he will not park his car at his car porch during Baldeep’s birthday party for RM10. What A did in both examples was give B a proposal. Now, this might sound familiar to you because we generally refer to proposals as offers. For example, you offer someone something and hope that they will accept it. In the context of receiving a letter of offer, what the company does when they are giving you a letter of offer is making a proposal. The communication of this proposal is then complete when you receive the letter of offer as found in section 4(1) CA 1950: “The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.” This means that if the letter of offer is being posted to you, the communication is not complete yet. After receiving the communication of the letter of offer (proposal), the ball is now in your court. Now, you would have the choice to accept, revoke, or even counter-offer. If you choose to revoke the offer, the story ends here. If you choose to counter-offer because you think that the salary is insufficient or if you think that some terms need further negotiations, then you change hats and end up being the person making a proposal to the company instead. However, if you choose to accept the letter of offer, then an agreement is formed. However, section 7 tells us a few things that need to be noted while making an acceptance: “In order to convert a proposal into a promise the acceptance must— (a) be absolute and unqualified; (b) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted...” What section 7 is saying is that that for your acceptance to be considered in law, it must be an absolute acceptance. This means that it cannot come with any disclaimers or conditions. An example of an acceptance that would not be legally recognised is as follows: Ali tells Baldeep he will wash Baldeep’s car for RM10. Baldeep tells Ali that he agrees...if Ali only charges RM5. This means that if you say, “Errr...I will accept if you give me extra RM500”, it is not an acceptance. This is because even if you say the magical “I accept” words, it is still considered a counter-offer. Now that you know that letters of offer can be considered contracts (some may not be considered contracts, we will explain this below), let’s move on to the more pressing question you might have… Can the company sue me if I turn them down after accepting? Technically...yes. If your letter of offer is regarded as a contract by the courts, then you failing to uphold your end of the bargain can be considered a breach of contract. Like every other breaches in contract, you breaching the contract gives the company a right to sue for damages. This can be found in section 74: “When a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.” This then leads us to the next question of… How much can I get sued for? Unless the company can prove that you failing to follow through with the job offer has caused them damages, it is unlikely that the court would award them anything but nominal damages (this means very little). In fact, you might not even get sued because often times, a legal action would cost more than what the company could get from suing you. Aside from that, as we mentioned earlier, only some offers can be considered contracts. This is because if your letter of offer does not list down all the terms of your employment and says that it is subject to an additional contract or further negotiation, then it is quite unlikely that the courts would view this as a conclusive contract. At the end of the day, if you are ever caught in a pickle such as this, the best way to deal with it would be to talk it out nicely with the company that you are turning down. After all, rejection does hurt."
"Are Malaysian ""family trusts"" only for rich people? If you ever watched teen high school movies, you might have heard the word “trust fund kids” thrown around. These are usually the obnoxious kids who come to school in a limousine, dress fancy, and even throw parties for the school. “Family trust” is another phrase Malaysians hear a lot whenever there’s a rich family squabble, such as the Genting clan’s extended family dispute over who owns what. Contrary to popular belief, trusts are not something only for the rich to use. In today’s world, common folk usually use trusts for wills, charities, and even insurance. We’ll cover those more technical aspects next time and keep this piece at a basic level for now. But did you know we also use trusts in our everyday life? Trusts have been around for a very long time Okay, you weren’t that far off the mark if you thought that trusts were for rich people. Trusts were used by landowners in the past to make sure their property passed down properly to their heirs. Trusts have been used since the time of the Crusades, and its simpler forms have been used even before that. Setting up a trust was the perfect way to make sure your property would pass to your next of kin (like if you weren’t sure if you were going to come back alive). Interesting note: this is how our wills and insurance policies work - you need to appoint a “trustee” who will administer your property and your insurance payout to your “nominees” (next of kin) after you pass away. It was also a way for Franciscan monks to benefit from property without having it under their name (and thus breaking their vow of poverty). Before you point a finger at religious people abusing the law, you should know that trusts were also used by people to cheat and avoid paying their creditors and feudal lords - just FYI. You might be wondering at this point - why can’t the creditors come after you for the money? Here’s an example to illustrate: Let’s say you just got declared a bankrupt. You have 2 houses under your name, which your creditors want to force-sell to get their money back. You might decide to put those 2 houses into a trust held by your spouse. Here’s where the crux is - to form the trust, the 2 houses must be transferred from your name to your spouse’s name. So when your creditors come after you, it looks like you have no property. Your creditors are left empty-handed, and you still get to live in your house. Just like magic right? No, not since the law was reformed. The area of law that governs trusts will consider the intention of the settlor (Midland Bank v Wyatt). So if the trust was made to provide for your children, then your creditors won’t be able to touch the houses. But if you created the trust to “hide” your property from creditors, then the trust is a sham and your creditors can sell the houses to cover your debts. You actually use trusts in your everyday life A trust requires 4 things: The Settlor - the initial owner The Trustee - the person who manages the trust The Property - the thing to be used for the beneficiary The Beneficiary - the person entitled to the benefit of the property How these elements work can be seen in the examples below. You pass RM50 to your friend Vijay, telling him to help you return it to Sandra. You and some friends pool money together for someone’s birthday. Henry takes the money and goes to buy the gift. You and your sister contribute money to buy a car together. It’s in your name so you’re holding it for the both of you. You donate money to a charity for them to help a certain group of people. Yep, this law is the reason why if Vijay or Henry run away with the money, you can report them to the police for theft. Your sister can also sue you for her share of the car if you try to sell it off. There are some technicalities that used to make trusts go wrong in the distant past, but basically the problem was that you had to really trust the trustee - because they could do whatever they wanted with the property, and there was nothing you could do about it. These days we still have the problem, but the beneficiary has the right to sue for the property. Trusts can be useful to everyone That was a basic overview of how trusts work and hopefully you now see the trusts you create daily in a new light – make sure you create them with people you actually trust (pun intended) to avoid legal issues. Do note that trusts are a huge area of law and can be applied in a lot of situations from family to employment and even finance - stories for another time. Trust can be used by anyone as security or to make family settlements, whether or not you own a lot of property. Most people use trusts to settle inheritance, which is why having a will is important and can save your family a squabble over your property. You could also set up a trust with your rental properties so that you can provide for generations to come, while making sure your descendants can’t kill the goose that lays golden eggs - by selling off the properties. (they are not allowed to) If you need to create a trust, it can be very technical and complex to make sure everything is in order, so be sure to engage a lawyer who can take care of the details for you."
"Dilema eutanasia: Hak menamatkan tempoh hayat seseorang pesakit THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect ASKLEGAL's position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article as it has not been verified by a practicing lawyer. oleh Mohd Zamre Bin Mohd Zahir | zamrezahir7@gmail.com Membantu menamatkan tempoh hayat seseorang pesakit yang mengalami penyakit yang dikatakan sukar atau tidak mungkin sembuh dengan cara sengaja seperti dengan memberikan suntikan atau ubatan melalui gas yang melebihi dos tidak dibenarkan oleh undang-undang. Ia turut dikenali sebagai eutanasia atau mercy killing atau assisted suicide. Tindakan ini umumnya dilihat melanggar undang-undang di banyak negara di dunia seperti Malaysia, Singapura, United Kingdom dan beberapa negeri di Amerika Syarikat. Walau bagaimanapun, terdapat beberapa negara yang membenarkan eutanasia seperti Belgium, Netherlands (Belanda) dan Luxembourg. Para penyokong eutanasia percaya bahawa negara tidak boleh mengganggu hak seseorang untuk mati. Namun, para penentang eutanasia mempunyai pendapat yang berbeza dan meletakkan asas bahawa tiada sesiapa yang boleh menentukan bilakah seseorang itu akan mati kecuali Tuhan. Marcapada, isu berhubung kait dengan kematian dibangkitkan semula. Di Malaysia, tindakan eutanasia adalah jelas melanggar undang-undang. Sesiapa yang melakukan eutanasia adalah dilihat melakukan cubaan untuk membunuh. Tindakan eutanasia salah di bawah Kanun Keseksaan. Malah, jika seseorang itu cuba membunuh dirinya sendiri, ia turut bertentangan dengan Kanun Keseksaan. Berdasarkan Seksyen 309 Kanun Keseksaan, sesiapa yang cuba untuk mengambil nyawanya sendiri tetapi gagal setelah mengambil beberapa langkah untuk melaksanakannya adalah telah melakukan kesalahan jenayah dan boleh disabitkan dengan hukuman penjara sehingga satu tahun atau denda atau kedua-duanya sekali. Setiap insan memahami bahawa nyawa ialah suatu anugerah yang perlu dilindungi setiap masa. Detik menikmati nilai kehidupan sebelum tibanya kematian perlulah dihargai. Maruah insan untuk menentukan corak kehidupannya perlulah dihormati. Malah, hasrat seseorang itu untuk mati secara bermaruah dikatakan sudah ada. Dalam keadaan ini, seseorang itu boleh memberikan panduan kepada doktor yang menjalankan rawatan perubatan ke atasnya tentang bagaimana hasratnya boleh ditunaikan oleh doktor tersebut. Sebagai contoh, pesakit menyatakan hasratnya agar doktor tidak perlu menyedarkan (resuscitate) semula sekiranya beliau tidak sedar. Larangan ini dipanggil Larangan Resusitasi (Do Not Resuscitate) (DNR). Contoh kedua yang boleh dilihat ialah pesakit membuat suatu arahan berbentuk Arahan Awal Perubatan (Advance Medical Directive) (AMD) menyatakan bahawa beliau tidak memerlukan alat sokongan hayat (ventilator) untuk hidup setelah disahkan oleh doktor bahawa tiada harapan lagi untuk sembuh (futile) dan segala rawatan perubatan pada waktu itu untuknya didapati sia-sia (no prospect of recovery). Ia juga sebagai panduan atau arahan yang berbentuk penolakan yang dilihat sebagai arahan bertulis pesakit berhubung rawatan perubatan di masa hadapan pesakit tersebut. Jika diimbas sejarah kembali, AMD yang pertama yang dapat dilihat ialah berdasarkan cadangan dan draf oleh Luis Kutner yang merupakan seorang peguam Amerika Syarikat pada tahun 1967 dan dipanggil sebagai advance directive atau living will. Ia bertujuan membolehkan pesakit yang berkeupayaan untuk memberikan arahan tentang rawatan perubatannya di peringkat akhir kehidupannya dan apabila pesakit tidak mampu lagi untuk menyatakan kehendaknya. Sebagai contoh, dalam kes Re C (Adult: Refusal of Treatment) [1994] 1 All ER 819, pesakit yang disebut dalam kes ini dikenali sebagai “C” yang menghidap penyakit paranoid skizofrenia (paranoid schizophrenic) di Hospital Broadmoor. Doktor kepada C percaya bahawa C perlu memotong kakinya. Malah, besar kemungkinan C akan mati jika tidak menjalani pembedahan memotong kaki. Pesakit menolak daripada memberi keizinan bagi membolehkan pembedahan itu dilakukan. Hakim menyatakan bahawa dalam meneliti sama ada pesakit memahami sifat, tujuan dan kesan sesuatu cadangan rawatan perubatan dan pembedahan, tahap keupayaan pesakit perlu dilihat melalui tiga aspek utama: Aspek kefahaman dan pengekalan maklumat tentang rawatan perubatan. Aspek kepercayaan kepada maklumat tersebut. Aspek mempertimbangkan sesuatu maklumat agar keputusan dapat dibuat. Dalam kes ini, tidak dinafikan C menghidap penyakit paranoid skizofrenia. Walau bagaimanapun, Hakim mendapati bahawa tidak dapat dibuktikan bahawa C tidak memahami maklumat yang disampaikan kepadanya sebelum keputusan dibuat dan C juga berkeupayaan untuk tidak memberikan keizinan pada ketika itu. Oleh itu, mahkamah memutuskan bahawa pemotongan kaki C adalah dilarang melainkan terdapat keizinan bertulis daripada C. C melepasi ketiga-tiga aspek utama. Keputusan C juga wajar dihormati. Rentetan daripada kes C ini, aspek keupayaan dan keizinan pesakit amat penting dalam perkara berhubung rawatan perubatan dan pembedahan yang akan dijalankan ke atas pesakit tersebut. Oleh hal yang demikian, penulis berpendapat AMD amat penting bagi memelihara aspek keupayaan dan keizinan pesakit kerana AMD dibuat oleh pesakit yang berkeupayaan sahaja dan AMD dilihat sebagai cermin keizinan pesakit berhubung rawatan perubatannya. Di samping itu, AMD juga dipercayai sangat signifikan kerana ia dapat mengelakkan tercetusnya konflik dalam keluarga pesakit bagi membuat keputusan berhubung rawatan perubatan untuk pesakit ketika pesakit tidak berkeupayaan atau tidak sedarkan diri lagi. Malah, ia dapat memberikan kata putus kepada doktor dan pihak penyedia perkhidmatan kesihatan misalnya hospital sama ada ingin meneruskan atau menghentikan rawatan perubatan terhadap pesakit tersebut. Ia juga dapat melindungi doktor daripada dikenakan tindakan undang-undang jika isu tentang keizinan pesakit berhubung dengan rawatan perubatan dibangkitkan. Selain itu, ia mampu bertindak sebagai makluman tentang ikrar pesakit sama ada ingin mendermakan organnya kepada pesakit lain atau tidak. Dari sudut yang lain pula, para doktor berasakan AMD tidak sama dengan euthanasia. Malah, ada yang berpendapat bahawa kewujudan AMD dapat membantu doktor melaksanakan tugas berkaitan dengan keizinan pesakit bagi rawatan perubatan dengan lebih cekap, mudah dan telus. Intihanya, pengajaran yang boleh diambil daripada penulisan ini ialah setiap individu adalah dilarang daripada melakukan eutanasia atau mercy killing atau assisted suicide. Ia ialah amalan yang ditegah oleh undang-undang. Walau bagaimanapun, setiap individu adalah disarankan agar menyedari bahawa kita berhak untuk menentukan masa hadapan. Walaupun kita tidak pernah mengetahui detik dan saat kematian kita, namun perancangan rawatan perubatan adalah suatu langkah bijak yang perlu dilakukan demi kebaikan semua pihak. Jika kita ingin menolak atau meneruskan rawatan perubatan, ia perlu dinyatakan agar semua pihak yang terlibat dengan urusan kesihatan kita mengetahui hasrat hati kita. Ia penting demi menjaga maruah kita untuk mati secara terhormat, bukan mati kerana keputusan berhubung tentang rawatan perubatan ditentukan oleh orang lain yang mungkin hakikatnya bertentangan dengan keinginan kita. Umpama kata peribahasa “pelepah bawah luruh, pelepah atas jangan gelak,” setiap insan yang hidup akan melalui fasa kematian. Maka, hargailah kehidupan ini sebelum tibanya detik kematian yang setiap saat menghampiri kita. Hormatilah keputusan yang dibuat demi menegakkan hak insan termasuklah pesakit. Mohd Zamre Bin Mohd Zahir merupakan siswazah/calon PhD di Fakulti Undang-undang Universiti Kebangsaan Malaysia dan sedang melakukan penyelidikan dalam bidang undang-undang perubatan. Beliau boleh dihubungi melalui email: zamrezahir7@gmail.com"
"Is there a time limit for you to sue someone in Malaysia? Thanks to movies and legal TV dramas, many of us associate suing someone with hiring a good-looking lawyer with a way around words to win the case for you. However, things aren't always as simple in real life. If you ever need to sue someone, there’s one important factor most people would probably would never think of: there’s a time limit to sue. Certain lawsuits have an ""expiration date"" for you to take action, whereby you may no longer be able to sue the person if the time limit has passed. While this may sound unfair, especially if you suffered a heavy loss, there’s a reason for this limit. As expressed in the case of Credit Corporation (M) Sdn Bhd v Fong Tak Sin: ""The limitation law is promulgated for the primary object of discouraging plaintiffs from sleeping on their actions and more importantly, to have a definite end to litigation."" - Hashim Yeop Sani, then Chief Justice Malaya So in a way, the time limit is another way to be fair to both parties. Imagine if you're suddenly sued out of the blue for an incident 10 years ago that you didn’t even realize happened… Not very fair, right? So why is suing on time important? Limitation periods only apply to civil suits (between two people) and not criminal cases (government coming after someone). In civil cases, if you exceed the “expiration date” to bring a case, courts are generally reluctant to hear it. But this doesn't mean that you don't have the right to bring an action anymore, it means you can’t get the remedy. A remedy is what you want to get at the end of the lawsuit - what are you suing the other party for, such as the enforcement of a contract, monetary compensation, etc. Let's take two guys - Chan and Dan. Say Chan got into a car accident with Dan on January 1st 2000 and Dan is at fault. Chan has a right to compensation from Dan for the damage to Chan's car, but Chan doesn't sue Dan for it until January 2017. Here, the time limitation will take effect. So while technically Chan is entitled to sue Dan, the compensation is no longer valid… Which is why you’d want to sue in the first place… Which makes suing pointless. Judges have to deal with a lot of cases, and it wouldn’t be strange to have a time-limited case thrown out. Because why sue if there’s no point to it? Hence it’s important that you sue within the time limit, which brings us to… How do you determine when is the last day you can sue someone? There are a few factors that will be taken into consideration, but mainly it will depend on your cause of action and who you are suing. If you are suing an individual or a company, the time limit depends on what type of dispute it is, but if you’re going after the government, the time limit is different as we’ll discuss later below. Here are a few common types of civil cases that get brought to court: Contract - 6 Years If you have a contract with someone and they breached it, under Section 6(1)(a) Limitation Act 1953, you have 6 years from the date the contract was breached to sue: ...actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say actions founded on a contract or on tort... Here's an example: On January 1st 2017, Ali entered into a contract where Muthu will deliver him a bouquet of flowers every day till December 31st 2017. Unfortunately, Muthu failed to deliver a bouquet on February 14th 2017. If Ali decides to sue Muthu, the time period he can do so is from February 15th 2017 to February 14th 2023. On the other hand, for rental agreements, if your tenant doesn’t pay the rent, Section 20 Limitation Act 1963 specifically bars recovery of arrears (outstanding payment) of rental 6 years after the due date. Section 20 states that: ""No action shall be brought, or distress made, to recover arrears of rent, or damages in respect thereof, after the expiration of six years from the date on which the arrears became due."" Tort - 6 years In law, if a person wrongfully harms you, it will fall within this category of law called tort. It governs claims by victims seeking compensation against the person that caused them to suffer. This would include claims involving an accident, medical negligence, or even assault. Section 6(1)(a) Limitation Act 1963 specifies that you will only have 6 years from when the damage occurred to sue. It doesn't matter if you don't initially see the damage or if you're unsure of the identity of your attacker - the timer starts from the date you were harmed. [Click here to read more about tort law] Land disputes - 12 years Section 9(1) Limitation Act 1953 governs the action to recover land and, unlike the areas mentioned above, it has a slightly longer time limit of 12 years. The Act provides that: No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person. Here's an example scenario of recovery of land: Raju paid the purchase price to Ah Chong for a piece of land but, a year later, Ah Chong still refuses to transfer the property to Raju. Raju will have 12 years to sue Ah Chong in court and force Ah Chong to take the steps necessary to transfer the property to Raju. What if you are suing a government agency or a public servant? According to the Public Authorities Protection Act, you only have 3 years to sue starting from when you were harmed. However, this only comes into play when it involves a public authority carrying out his or her duty; like if a policeman in a patrol car hits you. But, if the same policeman got sued for late rental payment (which is unrelated to his job), this special rule will not apply. Section 2 Public Authorities Protection Act 1948: ... any suit, action, prosecution or other proceeding ... shall not lie or be instituted unless it is commenced within thirty-six months next after the act, neglect or default complained of or, in the case of a continuance of injury or damage, within thirty-six months next after the ceasing thereof... It is important to note that while there is this limit of 3 years for private citizens, the government is not bound by this. The normal limitation periods apply if the government wants to sue you. So if a police car crashed into your car, you have 3 years to sue for damages. But if you crashed into a police car, the police have 6 years to sue you for damages. Can you sue a person who's already dead? This might be surprising to some, but the answer is actually.... Yes. Yep, even death is not considered a time limit. The details get a little tricky, but it doesn't mean you can't sue a person who's no longer alive. In these cases, the deceased person will be represented by a personal representative such as an executor of his/her estate or an administrator (one of the people in charge of distributing the inheritance). The time limits in the Limitation Act don't change, with the exception of torts, where section 8 of the Civil Law Act may apply: Section 8(3) Civil Law Act 1956: No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless proceedings against him in respect of that cause of action either— (a) were pending at the date of his death; or (b) are taken not later than six months after his personal representative took out representation. Basically, what the section in (b) says is that If you're in the process of suing someone over tort law and the person dies, you only have 6 months to sue from when a grant of representation has been issued. A grant of representation is a court order that gives the administrator or executor the power to manage the deceased's estate. Here's an example: You want to sue Ahmad but he is dead. You find out that Ahmad's wife took out a grant of representation from court to be in charge of Ahmad's estate on January 1st 2017. This means you have 6 months from January 1st 2017 to sue Ahmad (or rather, his estate). What happens to a lawsuit if the person you are suing died midway through the action? Well, if the person dies while the suit is still ongoing, the trial will continue unless it's a suit involving defamation or seduction under Section 8(1) of the Civil Law Act. In these cases, the case will thrown out of court since the person involved is already dead. If you think you have a case, you might want to act fast! While there are exceptions and ways to extend the time period, you shouldn't use it as a reason to procrastinate. If you feel that you have a cause of action against someone, it's best to seek out a lawyer for consultation and advice on how to further proceed with your claim."
"Who do you sue when you get injured in a lift? A Malaysian taxi driver fell 5 floors to find out. Have you ever imagined the following scenarios happening in a mall: The ceiling suddenly collapsing on top of you Someone falling off an escalator Falling down a lift shaft that’s going through maintenance If you have, you might have also wondered - Who’s responsible for it? A Malaysian taxi driver happened to find out in 1980. And it all started with a flat managed by DBKL... Here’s how the story went down It’s about 6am on 29th April 1980, a taxi driver is on Jalan Pekeliling in Kuala Lumpur. He’s here to collect some keys from a friend living in the Pekeliling Flats. He’s Ong Kok Peng - The Boy Man Who Fell (and Lived). Ong presses the lift button, but none of the 3 lifts came after about 5 minutes. He decided to walk up instead and found the lift doors closed on the 1st to 4th floors. On the 5th floor, a lift door was partially open. The stairs are lit, but there are no lights near the lift, which is about 12 feet away. His friend’s place is still a few floors up, and he could really use a lift. So Ong opens the doors and steps inside to...nothing. He falls straight down the shaft, down 5 floors. You could say he got shafted. There was no warning sign, barricade, or notice set up at the lifts about them being out of order. Add that to the fact the place was badly lit and you might start questioning the flat management’s sense of responsibility. DBKL turned out to be the management in charge of the Pekeliling Flats, but a 3rd party contractor was in charge of maintaining the lifts. So who did Ong sue? DBKL. From collecting keys, to RM30,000 in injuries After somehow surviving the fall, Ong Kok Peng sued DBKL for RM30,000 in compensation. It became apparent that some repairs to the lift were overdue, and a 3rd party contractor was in charge of repairing them. There were several legal technicalities that came up here - but we’ll save them for another time. Basically, this is what the court decided: DBKL is responsible to keep the Pekeliling Flats safe. Their 3rd party contractor failed to put up a barricade or warning sign, and didn’t make sure the lift was well lit. The 3rd party would be 100% at fault in most cases, but in this case DBKL had to share some of the blame because… The danger the missing lift posed to visitors was considered extra dangerous, As the owner, DBKL couldn’t just leave it up to a 3rd party to make sure the flat was safe. Why was DBKL responsible? Because they were considered the “occupier” in law. This is covered under an area of law called “occupier’s liability”, which is a type of tort (basically a legal wrong committed against you). [READ MORE - What’s a tort? Can eat one ah?] So what exactly is occupier’s liability? It’s a duty occupiers have as the owner and controller of their property. Property owners have a duty to keep visitors safe “Occupier’s liability” is a legal concept we adopted from a case in UK law where a couple was on holiday. The husband fell down some dangerous stairs, hit his head, and died. (Wheat v E Lacon & Co Ltd). The legal principle basically says that the occupier needs to keep their property safe for visitors to use. Sounds straightforward and simple? Not really. An “occupier” is anyone who has immediate supervision and control over the property, and has the power to decide who can enter and who can’t. The occupier of a property is not always the owner - it depends on who’s in charge of the property. In some cases it might be the owner, but it could also be someone the owner put in charge. So this could be the parking lot management or even a specific shopkeeper in a mall. For example, if your friend came over for a visit and got injured by a stray nail, you as the owner might be responsible. But if he got an electric shock in your apartment lobby, your building manager might be responsible instead. So does this mean you’re automatically responsible just because someone got injured on your property? Not really, it depends what they were on your property for. How much responsibility do occupiers owe their visitors? Not every visitor to your home is welcome there. You’ll gladly bring in your friends and do your best to keep them safe, but if a robber falls through the roof you’d probably laugh in between your anger and tears for having to foot a huge repair bill. It was in Ong Kok Peng’s case that Malaysian judges clarified that Malaysian law follows some old English principles on occupier’s liability. They laid out 4 levels of responsibility an occupier can owe to their visitors - which depends on what kind of permission they were given to be on the property. 1. Contractual entrant Explanation: You’ve paid money to be on the property. This includes hotel guests, cinema patrons, and even bus passengers. Duty of occupier: Guests must be reasonably safe when using the premises. The occupier is not responsible for hidden dangers that cannot be found even after inspection though. (MacLenan v Segar) 2. Invitees Explanation: You’re there on authority of the law or benefitting the occupier. This could mean a police officer, a repairman, or even a customer visiting a shop. Duty of occupier: Guests must be protected from unusual danger, such as a defective door, or even at quarries where explosions might harm people if safety measures are not taken. (Shamsuddin v Yap Choh Teh) 3. Licensees Explanation: You’re on the property legally because it’s open to visitors. This includes using public amenities like a library or toilet, and visiting a friend in an apartment. Duty of occupier: The occupier doesn’t need to protect you, but they need to warn you of dangers and not injure you. (Robert Addie v Dumbreck) 4. Trespassers Explanation: Probably the most clear cut - you’re not supposed to be there on the property. Duty of occupier: You might be surprised that an occupier would owe any responsibility to a trespasser, but take note that this includes people who got lost as well. Occupiers have to make sure that they warn of an overall danger on the property, like barbed wires or even a guard dog. (British Railways Board v Herrington) Yes, there have actually been break-ins where the trespasser tried to sue the property owner because they got injured. They technically *could* win the lawsuit, but only if it was because of a danger that affects everyone (like an electric fence); dangers like getting injured on the roof is something the law says the robber “volunteered” for. Safety is a two-way street Whether it’s parents looking out for their children at home, or a mall manager keeping the place safe for shoppers, the bottom line is this is a responsibility the law imposes to make everyday life safer for people. As the owner and controller of their property, the owner is the often the one with the power to make it safe for people to use. Hazards in buildings nowadays may not be as serious as falling down 5 floors to possible death; it could be as simple as malfunctioning lights, a faulty escalator, or even a parapet wall that was built too low (the one that protects us from falling off high-rise corridors). Even if we’re entitled to compensation in law, it’s still best that we take precautions where we can to avoid getting injured in the first place."
"Apartmen di Malaysia – Tanggungjawab siapa kalau terdapat kerosakan atau kecacatan? Artikel ini diterjermahkan dari bahasa Inggeris. Click here for English version Bayangkan keadaan ini – taman yang kaya dengan kehijauan. Kolam renang yang cantik. Kanak-kanak berlari sana sini dan bermain di taman permainan tanpa anda rasa bimbing peralatan taman permainan akan patah atau rosak. Keadaan demikian merupakan keadaan kehidupan di apartmen atau kondo atau istilah teknikalnya, hakmilik strata. Ia merujuk kepada pembangunan tanah yang membahagikan bangunan atau tanah kepada unit-unit individu yang akan dimiliki oleh pembeli-pembeli rumah. Selain kondo, apartmen dan flat, komuniti yang berpagar dan bersekuriti juga tergolong dalam harta strata. Lebih tepat lagi, keadaan yang disebutkan di atas adalah di kawasan hakmilik strata yang diurus dengan baik. Jika tidak terurus, anda akan berhadapan dengan situasi yang tidak diinginkan seperti kebocoran siling atau lif yang rosak. Kehidupan utopia tadi langsung bertukar menjadi mimpi buruk. Imej dari tumblr.com Pasti anda tertanya-tanya, siapa yang harus bertanggungjawab dalam senario tersebut. Adakah tanggungjawab pemilik unit atau pihak badan pengurusan? Undang-undang yang akan dirujuk adalah Akta Pengurusan Strata 2013 dan Peraturan-peraturan Pengurusan Strata (Penyenggaraan dan Pengurusan) 2015. Artikel ini hanya boleh digunakan di Semenanjung Malaysia sahaja. Sabah dan Sarawak mempunyai undang-undangnya tersendiri. Persoalan pertama, siapakah yang menguruskan pembangunan strata? Hal-hal di kawasan kediaman anda diuruskan oleh badan pengurusan bersama/joint management body (JMB) atau perbadanan pengurusan/management corporation (MC). Kedua-duanya mempunyai tugas menguruskan pembangunan hakmilik strata menurut seksyen 21 dan 59 Akta Pengurusan Strata. Bezanya, JMB diuruskan oleh pemaju DAN pembeli manakala MC pula dikendalikan sepenuhnya oleh pembeli. Dalam artikel ini, JMB dan MC akan dirujuk sebagai badan pengurusan untuk memudahkan pembacaan artikel ini. Harta yang rosak atau tidak diselenggarakan dengan baik. Apa yang boleh kita buat? Kita mula dengan langkah-langkah yang boleh anda ambil terhadap kes-kes umum dahulu sebelum dilanjutkan ke isu-isu yang lebih sering berlaku seperti kebocoran siling. Perkara pertama sekali adalah waranti. Masih dalam waranti atau tidak? Atau anda hanya menyewa rumah itu sahaja? Jika anda adalah pemilik dan apartmen masih dalam waranti Perkara yang pertama kita lihat apabila ada kerosakan/kecacatan pada unit/harta benda adalah waranti (liabiliti kecacatan/defect liability period) yang disediakan oleh pemaju. Waranti daripada pemaju biasanya mempunyai tempoh antara 12-36 bulan bergantung kepada kontrak masing-masing. Jika masih dalam waranti, anda boleh membuat aduan secara langsung kepada pemaju. Ini juga sama halnya dengan harta bersama (lif atau kolam renang) di kawasan kediaman anda. Seksyen 92 Akta Pengurusan Strata 2013 ada menyebut bahawa pemaju harus mendepositkan sejumlah amaun dengan Pesuruhjaya Bangunan untuk tujuan membaiki apa-apa kecacatan pada harta bersama di kawasan kediaman. Imej dari theage.com.au Jika anda adalah pemilik dan apartmen TIDAK lagi berada dalam waranti Sekiranya liabiliti kecacatan sudah tamat, anda harus merujuk kepada pihak badan pengurusan untuk memperbaiki kerosakan pada harta bersama di kawasan rumah anda. Bergantung sama ada JMB atau MC, Akta Pengurusan Strata 2013 telah menyeneraikan tugas-tugas untuk setiap pihak laksanakan. Sebagai contoh, Seksyen 59(1) menyatakan bahawa MC merangkul tugas-tugas seperti menyelenggara dan mengurus harta strata, termasuklah harta bersama. Dari hal-hal kecil seperti pembersihan kawasan hingga hal-hal yang lebih besar seperti memastikan lif tidak rosak sebulan sekali juga merupakan tugas-tugas mereka. Seksyen 59(1) Akta Pengurusan Strata 2013: “(1) Kewajipan perbadanan pengurusan adalah seperti yang berikut: (a) untuk menyenggarakan dan menguruskan dengan sepatutnya bangunan atau tanah yang dipecah bahagi dan harta bersama dan menjaganya dalam keadaan yang baik dan pembaikan yang dapat digunakan,” Jika pihak badan pengurusan gagal melaksanakan tugas-tugas mereka, anda boleh membuat aduan kepada Tribunal Pengurusan Strata, sepertimana yang terkandung di dalam Jadual Keempat, Akta Pengurusan Strata 2013: “1. Suatu pertikaian atau aduan berkenaan dengan suatu perjalanan atau pelaksanaan, atau kegagalan untuk menjalankan atau melaksanakan, suatu fungsi, kewajipan atau kuasa yang diberikan atau dikenakan oleh Akta ini atau perundangan subsidiari yang dibuat di bawah Akta ini…” Meskipun begitu, Tribunal hanya boleh mendengar isu-isu yang terkandung di dalam Jadual Keempat dengan syarat tidak melebihi RM250,000 dalam awards. Ini bermakna jika pampasan itu melebihi RM250,000, maka Tribunal tidak mempunyai kuasa untuk mendengar kes anda dan anda harus mendapatkan khidmat guaman. Bercakap tentang peguam, satu hal penting lagi yang anda harus tahu adalah anda tidak boleh mendapatkan khidmat guaman di Tribunal. Jadi anda sendirilah yang harus menghujahkan kes anda. Tribunal hanya akan membenarkan khidmat peguam sekiranya kes yang dibicarakan adalah kompleks atau anda akan mengalami masalah kewangan jika tidak diwakili peguam (seksyen 110(2) Akta Pengurusan Strata). Jika anda BUKAN pemilik dan hanya menyewa unit Anda tidak boleh membawa aduan ke Tribunal. Seksyen 107 menyenaraikan siapa yang berhak memfailkan tuntutan dengan pihak Tribunal. Sebagai contoh, pembeli dan pemilik berhak membuat tuntutan dan juga mana-mana orang berkepentingan yang lain, dengan kebenaran Tribunal. Dengan kata lain, sebagai penyewa, anda harus meyakinkan/memujuk Tribunal sekiranya hendak memfailkan aduan. Sekarang kita masuk kepada masalah-masalah yang mungkin bakal dialami oleh penghuni apartmen. Apa yang patut dilakukan jika siling rumah bocor? Kebocoran pada siling rumah pasti tidak asing bagi kita. Terdapat undang-undang tentang “inter-floor leakage” (kebocoran antara tingkat) atau dengan kata lain air penyebab bocor pada siling. Dalam Peraturan Pengurusan Strata 2015, ia didefinisikan sebagai apa-apa keterangan mengenai kebasahan, kelembapan atau penembusan air pada siling atau apa-apa bahan yang diletakkan atau dipasang pada siling (Peraturan 55). Imej dari woodtv.com Apa yang patut dilakukan pertama sekali? Buat aduan kepada pihak pengurusan (atau pemaju jika masih lagi dalam waranti). Pemeriksaan akan dijalankan di unit anda untuk mencari penyebab kebocoran dan siapa yang harus dipertanggungjawabkan. (Peraturan 57). Peraturan 58 juga ada menyeneraikan perkara untuk dipertimbangkan dalam menentukan penyebab kebocoran. Anda boleh baca sendiri dalam Peratuan Pengurusan Strata 2015 nanti. Seksyen 142 Akta Pengurusan Strata merupakan ‘titik permulaan’ bagi setiap jenis pemeriksaan yang dilakukan. Jika kebocoran terdapat pada siling rumah anda, maka unit di atas yang harus dipertanggungjawabkan jika tiada bukti yang menunjukkan sebaliknya. Seksyen 142 Akta Pengurusan Strata 2013: “Dalam mana-mana prosiding di mahkamah atau Tribunal di bawah Akta ini berkenaan dengan apa-apa kecacatan yang dikatakan dalam suatu petak atau dalam mana-mana harta bersama atau harta bersama terhad yang terletak betul-betul, sama ada secara keseluruhan atau sebahagiannya, di atas petak atau mana-mana harta bersama atau harta bersama terhad yang lain, ia hendaklah dianggap, jika tidak ada bukti berlawanan, bahawa kecacatan itu adalah dalam petak atau harta bersama atau harta bersama terhad yang mula-mula disebut itu, mengikut mana-mana yang berkenaan, jika terdapat apa-apa keterangan mengenai kebasahan, kelembapan atau penembusan air-“ Ini bukan bermakna automatik unit di atas yang mengakibatkan kebocoran. Justeru itu, pihak pengurusan boleh menjalankan pemeriksaan lanjut di unit tersebut demi mempercepatkan proses siasatan. Bagaimana pula jika pemilik rumah enggan unitnya diperiksa oleh pihak pengurusan? Sekiranya pemilik unit di atas anda tidak memberi akses ke unitnya untuk pemeriksaan, maka pemilik berkenaan akan didapati bersalah dan dikenakan denda tidak melebihi RM50,000.00 atau penjara tidak melebihi tiga tahun menurut peraturan 63: “(2) Mana-mana pembeli, pemunya petak, pemilik atau penghuni petak yang terlibat atau mana-mana petak lain yang gagal memberikan akses kepada petak yang terlibat atau petak lain kepada orang atau badan yang menjalankan pemeriksaan menurut subperaturan (1) melakukan suatu kesalahan dan hendaklah, apabila disabitkan, didenda tidak melebihi lima puluh ribu ringgit atau penjara tidak melebihi tiga tahun atau kedua-duanya sekali.” Imej dari hulettreality.com Daripada siapa kita boleh tuntut kerugian? Ini bergantung sama ada harta tersebut masih dalam tempoh liabiliti kecacatan atau tidak. Jika belum tamat tempoh, maka pemajulah yang bertanggungjawab ke atas kerosakan itu manakala sekiranya sudah tamat tempoh dan terbukti unit di atas anda yang menyebabkan kebocoran, pemilik unit tersebutlah yang bertanggungjawab. Kalau si pemilik gagal membaiki kebocoran itu, jadi pihak pengurusan harus membaikinya dan kosnya ditanggung oleh si pemilik unit itu. Peraturan 61 dalam Peraturan-Peraturan Pengurusan Strata 2015: “(1) Jika kebocoran antara tingkat disebabkan oleh atau dikenal pasti berpunca daripada suatu petak atau mana-mana bahagian daripadanya, pembeli, pemunya petak atau pemilik petak itu, tanpa prejudis kepada haknya untuk mendapatkan indemniti dari mana-mana pihak lain, hendaklah mengambil semua langkap perlu untuk membaiki kebocoran antara tingkat itu dalam masa tujuh hari dari penerimaan Borang 28. “(2) Sekiranya langkah-langkah yang dinyatakan dalam subperaturan 61(1) tidak dilaksanakan, mana-mana pemaju, badan pengurusan bersama, perbadanan pengurusan atau perbadanan pengurusan subsidiary atau ejen pengurusan yang dilantik oleh Pesuruhjaya di bawah subseksyen 86(1) atau 91(3) Akta, mengikut mana-mana yang berkenaan dengan, hendaklah secepat yang dapat dilaksanakan mengambil semua langkap perlu untuk membaiki kebocoran antara tingkat itu dan hendaklah mengenakan caj dan mendapatkan semua kos dan perbelanjaan dari pihak yang bertanggungjawab untuk membaiki kebocoran itu”. Bagaimana pula kalau jiran menggerudi menembusi dinding? Peraturan Pengurusan Strata 2015 ada juga menyebut tentang “party wall”. Untuk yang suka berjimba di luar sana, sila tutup Spotify playlists anda sebab ini bukan party yang anda bayangkan. Party wall di sini bermaksud “dinding dua pihak”, iaitu dinding yang anda dan jiran sebelah anda kongsi. Peraturan 65 mendefinisikannya sebagai dinding yang terletak di antara satu unit dengan harta bersama atau harta bersama terhad. Kerosakan dinding juga merangkumi akibat kelembapan, penembusan air dan sebagainya. Dengan kata lain, undang-undang untuk masalah ”party wall” meliput lebih banyak masalah berbanding dengan peruntukan untuk kebocoran inter floor. Tambahan lagi, peraturan tentang kebocoran antara tingkat adalah sama seperti yang disebut dalam Peraturan 67: “Dalam hal apabila petak yang terjejas oleh kerosakan pada dinding dua petak, peruntukan di bawah 55, 56, 57, 58, 59, 60, 61, 62, 63 dan 64 hendaklah dipakai secara mutatis mutandis.” Jangan tangguh untuk membuat repot! Imej pagar sekuriti patah yang dilaporkan oleh pembaca AskLegal (identity dirahsiakan) Akta Pengurusan Strata dan Peraturan-Peraturan Pengurusan Strata mengandungi langkah-langkah terperinci untuk anda memfailkan aduan ke Tribunal atau meminta supaya dilakukan pemeriksaan daripada pihak pengurusan. Lebih cepat melakukan aduan lebih baik sebelum menjadi lebih parah. Sungguhpun hanya menyewa dan anda tidak pasti bagaimana untuk melakukan aduan, adalah lebih baik anda memberitahu tuan tanah/rumah supaya langkah selanjutnya boleh diambil."
"What private car modifications are illegal in Malaysia? There’s no denying that Tokyo Drift is the best movie in the Fast and Furious franchise. Modified Japanese street cars, great cinematography, excellent location, what’s not to like? Now that that’s out of the way, let’s talk about car modifications in Malaysia. Everyone’s met that guy before. You know, the guy that has super bright HID lights that blind your eyes whether they come from the front or the back. You’ve also seen the heavily modified cars that blast loud bassy music, the ones with the neon LED lights under them and unnecessarily tall spoilers installed. Right, what’s the low-down on modifying private vehicles? The modification has to be done legally According to Section 12 of the Road Transport Act 1987, modifications made to any vehicles before or after registration must be done legally. Said vehicles may be inspected by the Director-General at any time. The Director General or a Director may at any time before registration of a motor vehicle require the motor vehicle to be brought to any convenient place specified by him and to be inspected and, if necessary, to be weighed and measured and after registration may at any time require a motor vehicle to be brought as aforesaid… Modifications that are allowed and not allowed on private vehicles There are modifications that can be performed without prior JPJ approval. However, these must be made according to the specified guidelines (guidelines will be expanded upon after this). The types of modifications are:- 1. Spoiler, side skirt and aerofoil installation 2. Door visor installation 3. Front and rear bumpers; and kangaroo bar installation 4. Installation of larger rims and tyres 5. Sunroof/moon roof/canvas top installation 6. Stepladder/boat/surfboard rack installation 7. Manual to automatic transmission change 8. Canopy/canvas installation 9. Winch, winch bar, side step, rear bar and snorkel installation 10. Roof rack/bike carrier installation 11. Spotlight installation Prohibited modifications to vehicles include:- 1. Body part/body kit installation that changes the vehicle's identity 2. Inner roll cage installation 3. HID lights retrofitting 4. Changes to the drive train 5. Flashing lights installation on the vehicle's front and rear (except for turn lights and warning light) 6. Tinted window or tinted film installation on the windshield with a transparency that is less than 70% 7. Tinted window or tinted film installation on the rear window or side windows with a transparency that is less than 50% An interesting thing to note here is the inner roll cage installation. Having a roll cage in your daily driver seems safer, but they can be more dangerous in normal cars, especially since race cars drivers wear a helmet on top of protective clothing. As for tinting, check out our article on the topic: [READ MORE: What does Malaysian law say about car tinting?] Modifications that can be done with prior approval from JPJ on private vehicles 1. Modifications to vehicles transporting the physically-challenged 2. Changes to the fuelling system 3. Engine change 4. Changes to vintage/classic status 5. Changes to vehicle structure panel (after an accident) That being said, let’s move on to the guidelines on the allowed modifications Guidelines on allowed modifications Here we have some examples of limitations on allowed modifications on private vehicles. We’re only including the most popular ones, because the article would be insanely long otherwise. Here’s the list on the JPJ site. Spoilers Spoilers are very popular among car modification enthusiasts, sometimes for good reason. The spoilers must not exceed 150mm beyond the outer side of the back tires, as shown in fig. 1. Rims and tires If the rims and/or tires are installed, they’re supposed to be fully protected by bigger mudflaps/mudguards as well. Rim and tire modifications that increase the overall height of the vehicle are not allowed Bumpers and kangaroo bars Any installation or modification on bumpers or kangaroo bars, in front or at the back of the vehicle, must not exceed 50% of the wheelbase. They must also not cover any lights of the vehicle (for example: the headlights), and cannot have protrusions exceeding 100 mm in length (no puncturing other vehicles like in Speed Racer) Kangaroo bars must not exceed 150mm beyond the total width of their vehicle HID headlights This one’s quoted quite a bit by many people as the one modification that boils their blood, as shown in the intro. What are HID headlamps exactly? HID stands for “High Intensity Discharged”, and they use Xenon gas instead of the traditional filaments. Retrofitting HID lights are generally prohibited unless it’s changes made to the entire lighting system that is certified safe for use by authorities such as SIRIM. Rule 96(2)(i) of the Motor Vehicle Rules (Construction and Use) was updated on 19 November 2007 to adhere to the guidelines of UNECE (United Nations Economic Commission for Europe). ...when HID are installed, the installation, specification and wiring must adhere to the guidelines of UNECE 48, UNECE 98 and UNECE 99… Owners of vehicles with retrofitted HID lights can be liable under Rule 94: ...the condition of any vehicles that are used on the road, and all the parts and accessories, must not cause or pose danger at all times to those who are in vehicles or on the road… If found guilty of the offence, the punishment is a fine of up to RM 2000 or imprisonment for up to 6 months under section 119 of the Road Transport Act 1987. Legal modifications are fine, just don’t go too far There’s regulations on number plates and engine changes too, Both of these have their own requirements which are not included in this article because they’re comparatively rarer than the modifications discussed above. The examples in this article and the list on the website might not be exhaustive, and while the the JPJ website is very informative, you can contact them via their various email addresses and phone numbers if something you wanna know about vehicle modifications isn’t there. Last but not least, the author maintains his stance that Tokyo Drift is the best movie in the Fast and Furious franchise. Anything after is not considered (by him) to be canon. Thank you."
"How do I know if I am getting arrested by the PDRM? You are walking down Chinatown, enjoying the lights and the multitude of characters that Chinatown has to offer. As you are looking at a knockoff Rolex, admiring how at first glance, the Rolex appears real, you hear shouts coming from the front. Alarmed, you turn around and wonder if you have been caught smack dab in the middle of a gang fight but then the shouts become clearer and you manage to make out, “POLIS POLIS”. Then you catch sight of our men in blue walking down the street, stopping at random stores and conducting checks and raids. You turn around and decide to walk faster because you really don’t want to be caught in the middle of all that. Perhaps you turning tail was suspicious because suddenly you hear a loud voice going, “YOU IN THE BLUE SHIRT. STOP”. You do a quick check and yep, you are in blue. You contemplate running away because you really don’t want to get caught up in all the drama when you were just taking a nice walk but then again, you have heard stories of people who get punished for evading arrest. But the question is… How do I even know if I am getting arrested? We know that every Malaysian grew up with stock Hollywood movies where the cops tackle the bad guys, read them their Miranda rights and then haul them up while saying some pretty cool line. However, in real life, arrests are usually not that dramatic. In fact, arrests in Malaysia are governed by section 15(1) of the Criminal Procedure Code: “In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there is a submission to the custody by word or action.” Section 15 tells us that arrests can happen through one of three ways: Touching the body of the person to be arrested Confining the body of the person to be arrested Where there is a submission to custody by words or actions Examples of how arrests can happen through the three scenarios are found below: Situation 1: You have just robbed someone of their handbag. As you are running away, a policeman reaches out and grabs your arm. There has been an arrest. Situation 2: You just robbed someone of their handbag. As you are running away, a policeman reaches out and wraps his arms around your waist, confining your body and effectively stopping you from running. There has been an arrest. Situation 3: You just robbed someone of their handbag. As you are running away, a policeman shouts, “BERHENTI” and you stop, with your hands up. There has been an arrest. OR You just robbed someone of their handbag. As you are running away, a policeman steps out in front of you and holds up his arm, making a stop sign. You stop and say, “I submit”. There has been an arrest. In addition to this, there is also something known as a common law arrest that was established in the case of Shaaban v Chong Fook Kam. In this case, the judge said that an arrest can happen when: The police states in terms that he is arresting The police uses force to restrain the suspect The police uses words/conduct that makes it clear that the police would use force if necessary to prevent the suspect from going anywhere However, the common law arrest differs from what is found in section 15 as the judge did not make reference to section 15 when deciding Shaaban’s case. As you can see, the only similarity between the arrests under section 15 and arrests under Shaaban is through the use of force to restrain the suspect. Beyond that, the cases of Public Prosecutor v Shee Chin Wah and Public Prosecutor v Johari Bin Abdul Kadir tells us that it is also considered arrest when you are being watched or guarded to prevent your escape. However, these are fact dependant. Now that you know when you are getting arrested, the next question is… Can the PDRM use force when arresting me? This is when we turn to section 15(2) and section 15(3) which tells us that: “(2) If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest such officer or other person may use all means necessary to effect the arrest. (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.” This means that the police are allowed to use force when arresting you if you use force to resist the arrest or tries to avoid the arrest. However, the amount of force that the police officer uses cannot cause your death if you are not accused with any offence that is punishable with death/life imprisonment (such as murder). For example, in the case of Mahmood v Government of Malaysia & Another, a police officer was patrolling in the middle of the night and he heard a woman’s screams for help. Then, he saw a man running away. When the man refused to stop when told to do, the police officer shot and wounded him. It was held that the police officer was allowed to fire his gun because section 15(2) allowed him to use all force necessary to carry out an arrest. [READ MORE: When are Malaysian police allowed to fire their guns?] [READ MORE: What is the difference between a summons and a warrant in Malaysia?] What if I was wrongfully arrested? If the arrest did not comply with any of the methods laid down in section 15(1), then you can sue for wrongful arrest and get damages (Tan Eng Hoe v Attorney-General). However, an important point to note is that suing for wrongful arrest is a civil action and it does not affect the criminal proceedings for your crime (if you are charged with one). This means that even if you were wrongfully arrested (not following the procedures) for theft, the authorities can still charge and convict you of theft if you did commit the crime. Aside from getting to sue them, you also get to exercise the right to private defence when they try to arrest you (if it was an unlawful arrest). In a very simplistic manner, this means that you can fight back and defend yourself. In the case of Public Prosecutor v Kok Khee, the court said that it was justifiable for the suspect to struggle because he was resisting the use of illegal force against him. So, there you have it folks. It doesn’t mean that the police in Malaysia are above the law. They do have procedures and laws to adhere to and as the Kok Khee case showed us, if the arrest was unlawful, it is illegal for the police to use force against you. At the end of the day, it is always important to know your rights and know that you are still protected by the law even if you have committed a crime. For further information, you can always download the Malaysian Red Book here, which lists down the rights you have when dealing with policemen. [READ MORE: Can Malaysian plainclothes police stop/arrest you?]"
"Is it scary being a witness in a Malaysian Court? Unless you’ve actually been to a court hearing before, chances are that your impression of being a court witness would be formed by what you’ve seen on TV – standing on the witness stand and have one lawyer asking you harsh questions while another lawyer shouts “Objection!” and you start crying. But what about in real life? Can a lawyer intimidate a witness unnecessarily? In a nutshell, much like the famous “Objection!” meme, actual court hearings in Malaysia (and elsewhere) are much less dramatic, with certain rules set in place so witnesses don’t get abused or traumatized. While most of us can go through our entire lives without ever being in that position, it would be useful to know how the process actually works. So let’s start off with why a lawyer would want to make the witness look bad in the first place. It’s so the judge doesn’t believe the witness In court, evidence may be produced in the following format: documentary evidence, oral evidence, and real evidence. A witness is crucial as a witness is someone called to give oral evidence in court, since a witness is usually the best form of evidence to certain facts. For example, if Hamid had witnessed a car accident, his testimony would be the best form of evidence to ascertain the events leading to the accident. Hence, Hamid’s presence as a witness in court would be vital. When it comes to evidence, the judge has to consider these 3 things: Relevancy – How is this piece of information be relevant to the case? Admissibility – Can this piece of information be admitted into court as evidence? Does the evidence come from an approved and valid source? Weight – How persuasive or believable is this evidence? How much of the evidence should a judge believe? Relevancy and admissibility of evidence from a witness are governed by statutes like Evidence Act 1950 but a judge has discretion as to how much weight is to be given to such evidence. This is why a lawyer will try to discredit the opponent’s witnesses by making them look untrustworthy, dishonest or of bad character; so that a judge will give less weight to such evidence. This is to dissuade a judge from relying on certain evidence and, if a judge cannot rely on certain evidence, then the opposing lawyer may have difficulty proving his case. But rather than put yourself through all that trouble, why not just say no? If the court summons you to be a witness, you CANNOT say no Regardless if it was a criminal case or a civil case (commonly called lawsuits), all parties are entitled to be called as a witness. If a witness refuses to attend even when summoned by the judge, the witness could be charged with contempt of court and could be imprisoned. Once the court session begins, a witness may go through 3 stages of questioning: 1st stage: Examination in Chief (questions from the “friendly” lawyer in TV shows) Here, the lawyer that had requested for your presence will question you so that you can tell facts that are beneficial to his or her case. Witness intimidation rarely happens, since the lawyer will have to ensure that the witness that s/he called is telling things in favour of his case. 2nd stage: Cross Examination (the “drama moment” in TV shows) The opposing counsel (lawyer) will now question the witness. This is where witness intimidation may occur as the lawyer will try to poke holes in your earlier testimony in Examination in Chief. The lawyer will try and make the witness look unreliable, untruthful or even irrelevant so that the judge will not rely on his or her evidence. 3rd stage: Re-examination (the part where the TV show cuts into advertisements) The lawyer that had conducted the Examination in Chief may conduct a re-examination. Here, the lawyer will try to patch up the holes made by the opposing counsel. It is mandatory for a witness to undergo Examination in Chief but not the other two stages. This is because it is up to the lawyers how they want to question a witness. So if it involves straightforward evidence like a police report, a witness is usually called to court for the purpose of tendering (submitting) a written statement as evidence. Hence, a lengthy examination by both counsels would then not be needed. But what stops a lawyer from harassing the witness? You may be wondering what’s stopping a lawyer from making the witness look bad? Can’t he just say something offensive, apologize, and move on? Three words – rules, law, and judge. First, the etiquette and conduct of Malaysian lawyers is regulated by the Malaysian Bar Council. If a lawyer harasses a witness with annoying, insulting or irrelevant questions, it would contravene Rule 13 and 14 of Legal Profession (Practice and Etiquette) Rules 1978. For instance: Rule 13 of Legal Profession (Practice and Etiquette) Rules 1978: “An advocate and solicitor shall guard against being made the channel for questions which are only intended to insult or annoy, and to exercise his own judgment as to the substance and form of the questions put.” Such a breach would amount to a misconduct under Section 94(3) Legal Profession Act 1976. If a complaint has been made and the investigation shows misconduct occured, the Bar Council may impose a sanction on the lawyer such as a fine or suspension. Such a report can be made by anyone including the witness themselves. Second, Parliament has also enacted similar laws as seen in Section 151 and 152 of the Evidence Act 1950. For instance: Section 151 Evidence Act 1950: “The court may forbid any questions or inquiries which it regards as indecent or scandalous, although they may have some bearing on the questions before the court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.” If the line of questioning runs foul of Evidence Act 1950, the lawyer may be found to be in contempt of court. This could mean imprisonment for the lawyer. Third, if your lawyer is doing a lousy job of protecting you from the opposing lawyer in court, the judge can still intervene as seen in Section 148 Evidence Act 1950: “(1) If any question relates to a matter not relevant to the suit or proceeding, except so far as it affects the credit of the witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer it, and may, if it does not think fit to compel him to answer the question, warn the witness that he is not obliged to answer it.” A judge is kinda like the football referee. It is the judge's discretion as to whether a foul was committed, and can decide whether or not a witness needs to answer the offending question. An example of how the acts above will apply is, Tom was accused of assaulting Claire at Souk Club. Claire sustained some injuries and is suing Tom for compensation. An example of an irrelevant question would be Claire’s lawyer asking Tom if he has ever bet RM10k on poker. Tom’s gambling habit has nothing to do with the assault, hence it is irrelevant. It would run afoul of Rule 14 (a) and (b) of Legal Profession (Practice and Etiquette) Rules 1978 as the lawyer is painting Tom in bad light by inputting that he likes to gamble, but it is irrelevant to the assault charge. An example of an insulting or annoying question would be Claire’s lawyer asking Tom if it is true that he has a habit of peeping at girls and hence his nickname is ‘Peeping Tom’. This will contravene Rule 13 of Legal Profession (Practice and Etiquette) Rules 1978 and also Section 152 Evidence Act 1950. There are also has other protection for witnesses like Section 146A Evidence Act 1950 which restricts questions concerning the sexual activity of the victim when it involves trials for rape. Of course, in all cases there are exceptions, but this too is covered by Evidence Act 1950. Then why are some people still so scared to be a witness? Whether as a lawyer or a witness, regardless of what one’s role is, some degree of fear will exist when one has to appear before a court. Perhaps it is just due to the solemn atmosphere in court, but always keep in mind that what you have to say makes a difference to the case. So, even if it is scary, everyone has a role to play. So, just as how a lawyer has the duty to fight for his client’s case, a witness has the duty to attend court and answer the questions truthfully. The duty of the witness ends only when the lawyers no longer have any question for the witness."
"How did one Thai lady leave a sinkhole in Malaysian land law? [PART 1] Have you ever wondered how do we stake our name over what is considered the world’s most priceless possession? Nope, this article is not talking about gold or chocolate but something that everyone (almost) of us would own. In fact, it probably shouldn’t even be considered a commodity because it is a basic need of life. This article is talking about...land. Some of you might say that it is the government’s duty and others might be perplexed because you thought that the funny lil paper commonly referred to as a “land title” would be enough to prove your ownership. Well, neither of you are wrong but a 1989 case involving a Thai lady, a RM1.8million land, a shadowy figure and the bated breaths of all lawyers in Malaysia would tell you that there is technically no way for you to assert ownership over your land. Wait. What? If there is no way to assert my ownership, how can I be sure that some fraudster isn’t going to pretend to own my land and then sell it off? Well, that was exactly what happened to this Thai lady called Boonsom Boonyanit. Since land law is immensely technical, we divided this article into two and you can read the technicalities of the law in the link below. [READ MORE: How did one Thai lady leave a sinkhole in Malaysian land law? [PART 2]] It started with an intense love for Penang It all begin with the love Madam Boonsom and her husband had for Penang (char keuy teow may or may not be part of it). They loved it so much that her husband, a Thai of Chinese origin named Sie Guan Tjang @ Sie Hang Bok bought two pieces of beachfront land in Penang and intended to build their retirement home there. In 1967, Sie then transferred these two pieces of land to his wife, Boonsom Boonyanit (also known as Sun Yok Eng) through a memorandum of transfer (Form 14A) according to the National Land Code (Penang and Malacca Titles) Act 1963 (“NLC (Penang and Malacca) 1963”). Under section 81(3) of NLC (Penang and Malacca) 1963, Form 14A is considered to be proof of ownership of the land and the owner must hold on to it: ”The copy of the instrument of dealing referred to in subsections (1) and (2) shall— (a) take effect as though it were a conveyance or other form of pre-existing title deed; (b) be retained by the person who presented such copy; and (c) be produced by such person as necessary in any subsequent dealing.” This means that Madam Boonsom Boonyanit is the legal owner of the two pieces of land. She kept her Form 14A as required by the law and even faithfully paid all taxes related to her land. However, some time in 1989, disaster hit home. On the 11th of July 1989, Phiensak Sosothikul, Boonsom Boonyanit’s eldest son was browsing through Thairat, a local newspaper, when he came across an advertisement placed by a Penang law firm that requested for anyone who had an interest in two pieces of land land located in Tanjung Bungah to come forward. Phiensak’s eyes probably bugged out at that advertisement because he realised that the land mentioned actually belongs to his mother. Phiensak put their family accountant on the case and he discovered some very interesting points… Will the real Madam Boonsom please stand up Because there’s a real and fake Madan Boonsom, we color-coded the major characters in the story for your convenience: Madam Boonsom Boonyanit – the OG and good Madam Boonsom Mrs. Boonsom – the no good fraudster Mrs. Boonsom Adorna Properties – the company that bought the property Back to the story, the family accountant found out that someone had actually impersonated Madam Boonsom. Here is how the imposter did it: Someone who called herself “Sun Yok Eng @ Boonsom Boonyanit” had affirmed a statutory declaration (a declaration you write and affirm to be true in front of a special witness such as a commissioner of oaths) on the 18th of June 1988. This statutory declaration stated that she was the owner of the land and that she had lost the original title to it. An interesting point to note is that the passport number that appeared on the declaration was “K/P Thailand No. 000386”. This declaration was then used to obtain a certified true copy of the land title from the authorities. “Mrs. Boonsom” then affirmed a second statutory declaration on the 6th of April 1989. An excerpt from the declaration reads as follows, “the names Mrs. Boonsom Boonyanit in my International Passport No. N-033852 and Sun Yok Eng @ Boonsom Boonyanit in the said ACT (land title) in respect of the said property refer to the same and one person, that is Mrs. Boonsom Boonyanit”. The rogue Mrs. Boonsom then used this second declaration to register the land in the name of the purchaser, Adorna Properties. If you are puzzled why a random land registration to Adorna Properties happened, this is why. Sometime in late October 1988, one of the directors of Adorna Properties, a Mr. Fong Wah Tan, was approached by a Mr. Lim Chan Hwa of CA Lim & GE Tan Sdn Bhd, a firm of valuers and estate agents. Mr. Lim then asked if Mr. Fong would be interested in purchasing two pieces of land that was facing the beach. After some negotiations, a sale and purchase agreement was signed. The memorandum of transfer (a document to transfer land ownership) was signed on the 7th of April 1989 and this memorandum, registered on the 24th of May 1989. The two pieces of land was sold for RM1.8million...without the real Madam Boonsom even realising what happened. As a matter of fact, the real Madam Boonsom was not even in Malaysia at the point in time and further, she produced evidence from the government of Thailand to state that the passport presented at the land office was a forged one. By now, some of you would have realised what happened. A fraudster who took a forged passport to the land office had managed to convince the authorities that she was in fact Madam Boonsom and using legal declarations, had sold the property over to a third party before vanishing into thin air. So, a fraud happened...but how does land ownership work in Malaysia? We inherited our land law from the Down Under The system that Malaysian land law operates under is known as the Torrens System. This system was created by Sir Robert Torrens wayyyyy back in the early 1800s when land speculation in South Australia boomed and prompted Sir Robert, the then Premier of South Australia to come up with a new system of land ownership to replace the deficiencies of the common law method of land registration. Malaysia adopted this Torrens System through the National Land Code 1965 (“NLC 1965”). In its barest form, there are two key concepts that the Torrens System operates by: The land register The indefeasibility of title The land register is basically a database of all the lands in Malaysia that records who are the registered owners and any legal interests (such as charges, caveats etc.) which are on the land. The Torrens System basically tells you that once your title has been registered, you can protect your land against any other claims that are not found on the title (indefeasibility of title). This means that if your title shows that you are the owner, a random stranger can’t come up to you and claim that he bought the land ten years ago and it belongs to him. This was the crux of Adorna’s argument during the court case (which we will tackle in the next point), that because their name was on the land title and in the register, they have an indefeasible title to the land that trumped Madam Boonsom’s claim. They also claimed that they were not aware of any fraud and was a bona fide (genuine) purchaser for value (the RM1.8million paid) for the land (hang on to this little nugget here). [READ MORE: How did one Thai lady leave a sinkhole in Malaysian land law? [PART 2]] At this point, you are probably thinking that Adorna (whether they knew of the fraud or not), seems to have the law on their side because indefeasible title, amiright? However, indefeasibility is subject to some considerations such as...fraud and forgery. Basically, when fraud happens, the NLC allows the courts to set aside the indefeasibility of title. We will explain the nitty gritty of the law here in the accompanying article but just know that since fraud happened, Madam Boonsom is arguing that Adorna’s title is defeasible (means that anyone can challenge it). If you are cheering for Madam Boonsom because clearly someone had forged her signature and the law seems to protect her, you might want to hold up. This is where all the bated breaths of lawyers come in. The decision of the court shocked the nation When Phiensak informed his mother of what happened, they came down to Malaysia and lodged a police report followed by a Registrar’s caveat. A caveat is similar to an injunction except that it is filed on a land title when you have an interest in it. The presence of the caveat on the title then prevents the owner from dealing with the land in any way such as charging it to a bank, selling it or transferring it. Armed with this caveat to prevent Adorna Properties from carrying out any transactions on her land, the actual Madam Boonsom then sued Adorna Properties and submitted a claim for the courts to declare, among other things, that the property is rightfully hers and to make an order compelling the Registrar of Titles to amend the land register to return the property to her. We won’t go into the details of all the arguments and judgments presented in court but we will provide a brief overview of each stage. The case started in the High Court and went all the way up to the Federal Court, the highest court in Malaysia. High Court In the High Court, the judge decided that Adorna Properties had an indefeasible title to the land. This means that Madam Boonsom effectively lost her property and all lawyers in Malaysia groaned because the judge’s decision basically means that no one’s property is ever safe. But this plucky lady appealed her case and went on to the Court of Appeal. This is what happened there. Court of Appeal In the Court of Appeal, the judges decided that Madam Boonsom is...the rightful owner and the property has to be returned to her (yay!). The thrust of the Court of Appeal’s decision is basically that Malaysia’s land law system confers deferred indefeasibility. This means that Madam Boonsom is entitled to her land because Adorna (even if they are bona fide), had received the property through fraud and therefore according to the NLC, they do not have the protection of indefeasibility. [READ MORE: How did one Thai lady leave a sinkhole in Malaysian land law? [PART 2]] This was how Madam Boonsom got her property back...did she? Adorna appealed this decision to the Federal Court who said that… Federal Court The Federal Court agreed with the High Court and Adorna got an indefeasible title. This means that Madam Boonsom lost her property. Sadly (or maybe thankfully), Madam Boonsom did not live to see this judgment delivered. She passed away on the 23rd of May 2000 and her second son, Kobchai Sosothikul, pressed on and filed two suits to review the decision of the Federal Court. They were both dismissed. He further sued the Penang State Government for negligence and breach of statutory duty. Even though the judge found the Penang government guilty of said charges, the application was dismissed because it was time-barred (the legal suit was brought 36 months later than what was allowed under the law). Today, the Infinity Beachfront Condominiums stand on what was Madam Boonsom’s planned retirement home. Adorna had sold the land over to Diamaward (M) Sdn Bhd, a subsidiary of Hunza Properties Berhad for RM13,220,000 on the 7th of October 2004. So, Madam Boonsom passed away without getting the justice she deserved and lawyers found this to be a major loophole in the law that undermined the protection the Torrens System was meant to confer. This means that a poor Thai lady valiantly fought her case for 10 years only to get a judgment that not only did not serve justice on her, but also left all landowners in Malaysia quaking in fear at the thought that their land will never be truly safe…. Just kidding, the courts changed the law again In 2012, the case of Tan Ying Hong v Tan Sian San & Others appeared. This case could be traced back to a “mysterious” occurrence back in 1976 where the Pahang State Government “mysteriously” alienated a piece of government land to Tan Ying Hong. Tan Ying Hong only became aware of the existence of this land when he received a letter from United Malayan Banking Corporation Bhd (now RHB Bank) in 1985, demanding repayment for RM300,000 being the outstanding loan sum for a loan granted by the bank to a company, Cini Timber Industries Sdn Bhd. Upon investigation, Tan Ying Hong discovered that a conman by the name of Tan Sian San had forged Tan Ying Hong’s signature a created a power of attorney in favour of Tan Sian San in 1977. Using this power of attorney, Tan Sian San then charged the property in Pahang to the bank as security for a loan granted to Cini Timber. [READ MORE: How did one Thai lady leave a sinkhole in Malaysian land law? [PART 2] It is clear that while the facts are not entirely the same as Madam Boonsom’s case, the crux of the case is the same. In other words, it also relates to the issue of fraud and indefeasibility of title. Tan Ying Hong the question that was posed to the Federal Court in Tan Ying Hong’s case was whether the law established in Madam Boonsom’s case had to be followed. This was what the court said... The judges overturned the established principle in Madam Boonsom’s case and closed the gap in the law by setting out that the concept of indefeasibility in Malaysia is one of deferred indefeasibility. [READ MORE: How did one Thai lady leave a sinkhole in Malaysian land law? [PART 2]] This means that landowners in Malaysia can rejoice as they now have protection against the loss of their lands through fraud. At the end of the day, Madam Boonsom may not have had her chance at justice but at least, her case brought to light the nuances that the law has and how a single word could change an outcome. We may think that lawyers are being overly pedantic and playing into semantics when they include certain words in legal documents. We may even think that they are trying to milk us for money by drafting terribly long and circuitous clauses but in actuality, the case of Boonsom has shown us how the courts dissect everything down to minute details. Most importantly, it showed us how complicated land law is in Malaysia and thankfully, how courts in Malaysia can take the necessary actions to amend the law when they see fit."
"How did one Thai lady leave a sinkhole in Malaysian land law? [PART 2] If you are here from part one of the story (which we recommend reading first), we laud you for your tenacity in tackling land law. Also, a word of advice, brace yourself for the technicalities that would hit you from every side. Without further ado, let’s dive into the Torrens System that we got from Australia. Due to the fact that this is an accompanying article, there may be some overlaps with the main article. [READ MORE: How did one Thai lady leave a sinkhole in Malaysian land law [PART 1]?] The Torrens System is all about registration The system that Malaysian land law operates under is known as the Torrens System. This system was created by Sir Robert Torrens wayyyyy back in the early 1800s when land speculation in South Australia boomed and prompted Sir Robert, the then Premier of South Australia to come up with a new system of land ownership to replace the deficiencies of the common law method of land registration. Malaysia adopted this Torrens System through the National Land Code 1965 (“NLC 1965”). In its barest form, there are two key concepts that the Torrens System operates by: The land register The indefeasibility of title The land register is basically a database of all the lands in Malaysia that records who are the registered owners and any legal interests (such as charges, caveats etc.) which are on the land. For the purposes of understanding the fraud in Madam Boonsom’s case, we will focus on land transfers. Section 215 of the NLC 1965 provides that any land transfer would be done via Form 14A and the title of the land would pass to the transferee upon successful registration of the transfer. Those of you who have dealt with property transfers before would be familiar with this process, from signing the 14A to presenting it to the land office which registers it. During this process, you would also be required to surrender your original land title to the land office who would amend the current title to reflect the new changes and return it back to you. This means that while the title should reflect whatever is on the register, the register is still the final point of reference in case of any disputes. Section 215: “(1) The transfer under this Act of any alienated land shall be effected by an instrument in Form 14A. (2) The title of the transferor shall pass to and vest in the transferee upon the registration of any such transfer, together also with the benefit of any registered interests then enjoyed with the land.” The registration of land then ties in with the second concept of indefeasibility of title. Under section 340 of the NLC 1965, the title of anyone who is registered as the owner of the land will be indefeasible. This means that as long as your name/interest appears on the land register, you would be protected from any third party claims to the land which do not appear on the register would be defeated by your title, with the help of the register. This was the crux of Adorna’s argument during the court case (which we will tackle in the next point), that because their name was on the land title and in the register, they have an indefeasible title to the land that trumped Madam Boonsom’s claim. They also claimed that they were not aware of any fraud and was a bona fide (genuine) purchaser for value (the RM1.8million paid) for the land (hang on to this little nugget here). At this point, you are probably thinking that Adorna (whether they knew of the fraud or not), seems to have the law on their side because indefeasible title, amiright? Plot twist – indefeasible title is...subject to considerations. Section 340(1) reads: “The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions (emphasis added) of this section, be indefeasible.” Section 340(2) tells us when there is no indefeasibility of title in three scenarios: (i) where there is fraud/misrepresentation to which the party/agent is party/privy to, (ii) registration was obtained through forgery/by means of an insufficient/void instrument and (iii) where the title was unlawfully acquired by someone purporting to exercise power given through the law. For the purposes of this article, we would focus on the issue of forgery. Basically, section 340(2) tells us that when there is forgery, the person who receives the property will not get an indefeasible title. He will, instead, get a defeasible title. A defeasible title means that the forged instrument was unable to confer any rights, interests or title to the acquirer of the property. [READ MORE: How did one Thai lady leave a sinkhole in Malaysian land law [PART 1]?] Now that we have explained this part, we will dive into what the courts said in detail. The court case(s) took many turns High Court In the High Court, the judge decided that Adorna Properties had an indefeasible title to the land. But what about the issue of fraud? So here is the thing, the judge in the High Court referred to section 340(3) of the NLC 1965. Before we delve into what section 340(3) says, take a look at what it says: “Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in sub-section (2)- (a) it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and (b) any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested: Provided that nothing in this sub-section shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such a purchaser.” Some of you eagle eyes out there might notice that this section gives the person who receives the land indefeasible title if he is a purchaser in good faith and for valuable consideration. Remember how Adorna argued that they were unaware of the fraud? Yeahhhh...the judge in the High Court took that proviso in section 340(3) and applied it to section 340(2) to decide that even where there is forgery, a bona fide purchaser’s title would remain indefeasible. ”...I hold that even had I found that forgery had been proved beyond reasonable doubt, the defendant (Adorna) is nevertheless protected and has acquired indefeasible title over the said properties by virtue of the proviso in s. 340(3)...” – Vincent Ng J, High Court (Penang) on the 29th of April 1995 This means that Madam Boonsom effectively lost her property and all lawyers in Malaysia groaned because the judge’s decision basically means that no one’s property is ever safe. But this plucky lady appealed her case and went on to the Court of Appeal. This is what happened there. Court of Appeal In the Court of Appeal, the judges decided that Madam Boonsom is...the rightful owner and the property has to be returned to her (yay!). This is where it gets even more technical, so please bear with us. The reasoning of the Court of Appeal is that there are actually two kinds of indefeasibility. The first kind is immediate indefeasibility and the second kind is deferred indefeasibility. In a very simplistic manner, immediate indefeasibility means that immediate purchaser gets an undisputed title and stands strong against all other claims. An example of this would be: A obtains a land via fraud and sells it to B. C, the true owner of the land, discovers the fraud and sues for the return of the land. Even though fraud can be proven, B still keeps the land because of the concept of immediate indefeasibility of title. On the other hand, deferred indefeasibility means that indefeasibility is only given in a subsequent transfer. This means that in the example given above, B would not be able to keep the land because indefeasibility is deferred to the next transfer of property. For example, A obtains a land via fraud and sells it to B. C, the true owner of the land, discovers the fraud and sues for the return of the land. B then has to return the property to C because his indefeasibility is deferred. An example of how deferred indefeasibility works is: A obtains a land via fraud and sells it to B. B then sells that land to D. C, the true owner of the land, discovers the fraud after the sale to D. C sues for the return of the land. However, because the land has been transferred from B to D (subsequent transfer), D now has the protection of an indefeasible title. C will not be able to get his land back. The decision of the judges in the Court of Appeal was made with reference to a lot of other cases and academic papers which we won’t delve into but we will summarise it for you folks out there. The thrust of the Court of Appeal’s decision is basically that Malaysia’s land law system confers deferred indefeasibility. This means that Madam Boonsom is entitled to her land because Adorna (even if they are bona fide), had received the property through fraud and therefore according to section 340(2), they do not have the protection of indefeasibility. But wait. What about the proviso in section 340(3) that you know, protects bona fide purchasers? Well, section 340(3) does protect bona fide parties but...only in a subsequent transfer. Remember that example we gave about how D is able to retain his property? Yeah. That is how deferred indefeasibility works. ”The section should be read as making defeasible the title of a proprietor who gets unto the register by means of one or more of the methods specified in the second subsection. However, if such a registered proprietor were to dispose of the land to a third party who, in good faith, pays the purchase price, then, the latter, as well as those who came on the register after him, take title free of any taint.” – Gopal Sri Ram JCA, Court of Appeal on the 17th of March 1997 The judges in the Court of Appeal saw section 340(2) and section 340(3) as two separate provisions and because of that, the proviso in section 340(3) cannot be taken and used for situations of fraud that is covered in section 340(2). Lawyers saw this as closing a terrible gap in the law and rejoiced. This was how Madam Boonsom got her property back...did she? Adorna appealed this decision to the Federal Court who said that… Federal Court The is what the Federal Court said: “We therefore, agree with the High Court Judge that, on the facts of this case, even if the instrument of transfer was forged, the respondent nevertheless obtained an indefeasible title to the said lands.” – Eusoff Chin CJ, Federal Court on the 13th of December 2000 The Federal Court agreed with the High Court and Adorna got an indefeasible title. This means that Madam Boonsom lost her property. But as you know from reading Part One of this article, the law was changed and here’s the legalese side of that story. [READ MORE: How did one Thai lady leave a sinkhole in Malaysian land law [PART 1]?] The courts found a ‘blatant error’ in Madam Boonsom’s case Remember the case of Tan Ying Hong v Tan Sian San & Others? Well, the facts were not entirely the same as Madam Boonsom’s case but the crux of the case is the same. In other words, it also relates to the issue of fraud and indefeasibility of title. Therefore, when Tan Ying Hong lost at both the High Court and the Court of Appeal, he appealed to the Federal Court, asking one simple question, ""Whether an acquirer of a registered charge or other interest or title under the National Land Code 1965 by means of a forged instrument acquires an immediate interest or title."" In essence, the question that was posed to the Federal Court in Tan Ying Hong’s case was whether the law established in Madam Boonsom’s case had to be followed. [READ MORE: How did one Thai lady leave a sinkhole in Malaysian land law [PART 1]?] The Federal Court answered… “I totally agree with the learned Chief Judge of Malaya’s view that the error committed by the Federal Court in Adorna Properties Sdn Bhd v Boonsom Boonyanit @ Sun Yok Eng [2001] 1 MLJ 241 was to read the proviso to sub-s (3) as being a proviso to sub-s (2) as well. The error is very obvious because the proviso expressly refers to ‘this sub-section’ which must in the context of that subsection be read as proviso to sub-s (3) only. I am legally obligated to restate the law since the error committed in Adorna Properties is so obvious and blatant.” – Zaki Azmi CJ, Federal Court on the 21st of January 2010 The judges overturned the established principle in Madam Boonsom’s case and closed the gap in the law by setting out that the proviso found in section 340(3) can only be applied within the confines of section 340(3). In other words, it means that the concept of indefeasibility in Malaysia is one of deferred indefeasibility. This means that landowners in Malaysia can rejoice as they now have protection against the loss of their lands through fraud. Folks, if you have stayed with us this far, our heart goes out to you and we recommend hot tea for the raging headache."
"Apa beza wasiat orang Islam dan bukan Islam di Malaysia?   Bila berbicara tentang wasiat ia bukanlah suatu perkara yang mudah malah pembahagian wasiat boleh menjadi rumit kalau tak dikendalikan dengan betul dan sedihnya kadang-kadang tu boleh melibatkan pergaduhan antara ahli keluarga terutama sekali adik-beradik. Jadi kat artikel ni, kami melihatkan secara am bagaimana pembahagian wasiat dibuat di Malaysia. Kebiasaanya di Malaysia, boleh dikatakan bahawa pembahagian harta bergantung kepada kepercayaan si mati (Islam dan bukan Islam) di mana terdapat beberapa perbezaan. Seperti contoh, dalam pembahagian harta pusaka untuk bukan Islam ibubapa angkat boleh beri sepenuhnya harta mereka kepada anak angkat yang sah manakala dalam Islam pula, wasiat anak angkat tersebut boleh dicabar. Perkara ni kami akan explain lagi tapi sebelum pergi lebih mendalam, kita tengok dulu apa itu wasiat… Pembahagian harta dari segi Islam Wasiat adalah peninggalan harta selepas seseorang tu mati, di Malaysia wasiat sering dilihat dari dua sudut. Yang pertama adalah dari segi Islamik. Menurut ajaran Islam, penulisan wasiat tidak wajib tapi terdapat tulisan dalam Al-Quran dan juga Sunnah (rujukan orang Islam berdasarkan perbuatan dan percakapan Nabi Muhammad SAW) bahawa penulisan wasiat amat digalakkan. Agama Islam telah meletakkan beberapa syarat untuk seseorang tu menulis wasiat dan antaranya adalah pewasiat tersebut hendaklah waras, matang (sudah baligh), tidak dipaksa, dan juga pemilik harta yang diwasiatkan. Kat Malaysia kalau seseorang Muslim tu mati tanpa menulis wasiat, harta si mati akan dibahagikan mengikut hukum Faraid (iaitu cara pembahagian harta mengikut Islam). Berdasarkan hukum tersebut, segala hutang (yang dibenarkan syarak) si mati hendaklah dilaksanakan terdahulu sebelum dibahagikan dan cara pembahagian pula dilakukan secara demikian: Perlu diingatkan bahawa faraid ni hanya terjadi apabila si mati tidak menulis wasiat, kalau ada wasiat boleh berpandukan tu sahaja, lagi satu nota penting yang kita boleh ambil adalah, menurut para ulama (orang hebat agama Islam) wasiat sepenuhnya boleh ditinggalkan kepada salah seorang waris sah dengan persetujuan waris-waris yang lain, tapi ni tak digalakkan. Dan kalau ada yang tertanya-tanya Islam tak melarang untuk seseorang Muslim memberi wasiat kepada orang yang bukan Islam. Jadi tu sedikit sebanyak tentang pembahagian wasiat dari sudut Islam di Malaysia, bagaimana pula untuk kepada yang bukan Islam? Pembahagian harta dari segi bukan Islam di Malaysia Yang kedua pula pembahagian wasiat boleh dilakukan melalui Akta Pembahagian 1958 (Distribution Act) - diubah suai pada tahun 1997 - untuk orang bukan Islam. Undang-undang ni hanya berkuat kuasa kepada semua warga Malaysia yang bukan Islam tinggal di Semenanjung dan tak merangkumi orang bukan Islam di Sabah dan orang asli Sarawak. Perlu diingatkan kat sini, ‘estate’ bukan sahaja tertakluk kepada tanah tapi juga termasuk barang kemas, wang insuran, dan segala jenis harta peninggalan si mati. Menurut Akta Pembahagian 1958, kalau si mati tak tulis wasiat kesemua hartanya akan diberi kepada pihak yang berkenaan seperti yang tertera dibawah: Kalau si mati meninggalkan... Hak Ibubapa Hak Pasangan Hak Kerabat • ibubapa sahaja tanpa pasangan atau kerabat Seluruh harta - - • pasangan sahaja tanpa ibubapa atau kerabat - Seluruh harta - • kerabat sahaja tanpa pasangan atau ibubapa - - Seluruh harta • ibubapa dan pasangan, tanpa kerabat 1/2 1/2 - • pasangan dan kerabat, tanpa ibubapa - 1/3 2/3 • ibubapa dan kerabat, tanpa pasangan 1/3 - 2/3 • ibubapa, pasangan, kerabat 1/4 1/4 1/2 *Jadual dari The Malaysian Bar Council Malaysian Bar Council juga ada berkata kalau yang tertakluk dalam jadual ni semuanya takde, harta akan diberikan secara adil kepada berikut mengikut urutan – Adik beradik Atuk dan nenek Pakcik dan makcik Moyang Pakcik dan makcik moyang Dan kalau semua takde juga baru kerajaan akan ambil alih harta si mati. So setakat ni kita telah cover macam mana harta pusaka dibahagikan kalau si mati tak tulis wasiat tapi ni hanya merangkumi orang yang mempunyai pertalian darah dengan si mati, kalau anak angkat pula macam mana? Anak angkat boleh dapat wasiat tapi… Dari segi Islam, anak angkat boleh dapat harta pusaka si mati kalau wasiat telah ditulis. Tapi kalau nak diikutkan hukum fariad, anak angkat tiada dalam list tapi kalau si mati dah letak nama anak angkat sebagai pewaris, kebiasaanya anak angkat tersebut dapat tidak melebihi 1/3 dari harta pusaka tapi kalau nak kasi lebih boleh je. Perlu diingatkan waris yang sah (seperti ibubapa, adik-beradik, dll) boleh buat surat untuk claim wasiat yang melebihi 1/3 tersebut. Menurut undang-undang syariah Malaysia pula, mana-mana anak angkat yang dijaga oleh makcik-pakciknya sendiri, anak angkat tersebut berhak untuk mendapat wasiat seperti biasa. Manakala untuk anak angkat yang warisnya masih hidup (ada setengah keluarga kasi anak dia kat orang lain untuk dijaga) tidak berhak untuk mendapat wasiat dari keluarga angkatnya. Perlu diingkatkan anak angkat tersebut perlu diperakui secara sah oleh masyarakat setempat atau telah mengisi borang anak angkat yang disediakan oleh kerajaan. Untuk yang bukan Islam di Malaysia pula, anak angkat terbahagi kepada dua kategori menurut Akta Pendaftaran Pengangkatan 1952 (Registration of Adoptions Act). Yang pertama adalah Court Adoption (mengambil anak angkat melalui proses mahkamah) dan yang ni segala tanggungjawab dan hak ibubapa sebenar dipindahkan sepenuhnya kepada ibubapa angkat (ibubapa angkat ni kena sah berkahwin di sisi undang-undang). Untuk anak angkat melalui Court Adoption, dia berhak mendapat wasiat sepenuhnya ibarat anak kandung. Yang kedua pula adalah proses pengambilan anak angkat melalui pendaftaran anak angkat di Jabatan Pendaftaran Negara (JPN). Untuk yang ni, boleh jatuh kepada orang Islam dan juga bukan Islam dan sebelum mendaftar di JPN, ibubapa angkat tersebut kenalah menjaga anak angkat tu sekurang-kurangnya dua tahun. Anak angkat yang ni tidak berhak untuk tuntut harta pusaka jika wasiat tidak ditulis oleh si mati tapi kalau nama anak angkat ada dalam wasiat maka dia berhak untuk terimanya. Tapi bila berbicara tentang wasiat ada lagi satu perkara yang pewaris kena utamakan… Malangnya, hutang pun diwarisi! So sebelum korang boleh start claim wasiat, perlu terlebih dahulu diutamakan mana-mana hutang yang ada sebab mengikut ajaran Islam dan undang-undang wasiat Malaysia untuk yang bukan Islam, kesemua hutang perlu diselesaikan sebelum harta tersebut boleh diagihkan. Berpandukan prinsip ni, pengiraan siapa dapat apa hanya boleh dilakukan apabila semua hutang dah dibayar (kalau ada hutang lah). Sebelum tu kita lihat dulu proses pembayaran hutang utama seperti proses pengebumian/pembakaran mayat, kerajaan (cukai), bank (pembelian kereta, rumah, dan lain-lain lagi) dan yuran orang yang bertanggungjawab dalam perlaksanaan wasiat. Kalau si mati mampu untuk membayar hutang, bayaran akan diutamakan seperti berikut: Tapi kalau si mati tak mempunyai harta yang mencukupi untuk bayar hutang macam mana? Kalau harta pusaka tu tak sempat sampai ke hutang kereta atau rumah, kebiasaanya bank akan minta pewaris ambil alih pinjaman/hutang tersebut dan kalau pewaris tak nak, bank ada hak untuk ambil semula harta tersebut dan menjualnya bagi melangsaikan hutang. Kalau ada baki lebih dari jualan tersebut, pewaris boleh ambil. Manakala untuk hutang pinjaman peribadi atau kad kredit, guarantor si mati perlu membayar hutang tersebut. Tapi ada dalam sesetangah kes, si mati langsung takde apa-apa dan ni sering dirujuk sebagai insolvent bermaksud pewaris tak dapat apa-apa dan bank/kerajaan pun tak dapat apa-apa. Disyorkan untuk buat persiapan awal, sebab manalah kita tahu kan... Kami sering terjumpa dengan satu nasihat yang sering diungkapkan mengenai topik ni, iaitu tulis wasiat sementara masih hidup tak kiralah sama ada dari golongan Islam atau bukan Islam. Walaupun dari segi agama dan undang-undang dah ada ‘default setting’ untuk pengurusan harta pusaka, adalah lebih baik kalau kita tulis sendiri supaya siapa kita tahu kebajikan yang tersayang dijamin. Alasan yang sering digunakan adalah “nantilah, dah tua baru tulis” atau “alaa, rumah dan kereta murah je tak perlu la kot tulis wasiat. Sekecil zarah mahupun sebesar gunung tidakkah kita nak lihat ahli keluarga dan yang tersayang dijaga selepas permergian kita? Jadi kalau korang rasa ada nak tulis wasiat, orang Islam Malaysia boleh hubungi Jabatan Agama di kawasan korang manakala orang bukan Islam pula hubungi agent yang sah untuk pengurusan."
"What is the difference between a summons and a warrant in Malaysia? Malaysians are very familiar with the concept of summons or as we call it, “saman”. We usually get it for traffic offences such as speeding or the favourite Malaysian past time, cutting into lanes without adhering to proper etiquettes of safe driving. For us, summons usually relate to minor offences and typically, we pay them (or don’t even pay them) and forget about it. On the other hand, we are also somewhat familiar with warrants of arrests which we usually think are reserved for serious crimes. When we think of arrest warrants, our mind conjures up dramatic scenes of car chases or maybe police officers decked out in Kevlar vests, pounding on someone’s door before going, “We have a warrant to arrest you, Dr. Doom.” But are there more differences between summons and warrants other than in the way they are typically used? Well, the starting point is… Summons and warrants have the same purpose Both summons and warrants are processes which are issued by the court in order to compel your attendance in court. In other words, the courts can issue summons or warrants if they want you to go to court. Both summons and arrests are issued in accordance with either the Courts of Judicature Act 1964 or the Subordinate Courts Act 1948. Section 34 and section 38 of the Criminal Procedure Code (“CPC”) tells you how summons and warrants are supposed to be like. They both have to be: In writing Signed by the court Sealed by the court In addition to that, summons will usually be served by a police officer but the court which issues you the summons can order another person to serve it on you if they think that it would be necessary to. Section 34(2) CPC: “Such summons shall ordinarily be served by a police officer but the Court issuing the summons may if it sees fit direct it to be served by any other person.” Now that we have covered the basics of summonses and warrants, let’s take a more in-depth look at summonses and warrants separately. Ignore a summons and it turns into a warrant Remember how summons are used to make you go to court? Since it is meant to ensure your attendance in court, there is actually a proper way for summonses to be served. First off, the original copy of the summons should be given to you personally. You might also be required to sign an acknowledgement, stating that you have received the summons, on the back of the original copy. However, if you have any ideas about disappearing or hiding around a corner so that the police officer can’t pass the summons to you, you might want to scrap that plan. This is because section 35(4) CPC allows for the police officer (or anyone else empowered by the court) to serve you the summons by leaving it with an adult family member or a servant that lives with you. Aside from that, if the police officer fails to find any family members or servants, he can then simply leave the summons at a conspicuous part of your house or at any place that you would normally be at if the court orders it. This is why you usually come back from your delicious serving of nasi lemak and stagger from shock (maybe from heartburn too) when you see that white piece of paper fluttering from your windscreen wipers. Section 36 CPC: When the person to be summoned cannot by the exercise of due diligence be found and service cannot be effected as directed by subsection 35(4) the serving officer shall affix a copy of the summons to some conspicuous part of the house or other place in which the person summoned ordinarily resides, and in such case the summons, if the Court so directs either before or after such affixing, shall be deemed to have been duly served. But wait. Why are the police supposed to try leaving the summons with a family member or, failing that, to leave it at a house when the only type of summonses that can be issued are traffic summons? Well, summonses are not just for traffic offences. They can be used for a plethora of reasons such as requiring you to go to court to be a witness. Okay but we all know that it is okay to ignore a summons, right? We all do that so much that it might even be immortalised as a favourite Malaysian past time. However, if you have ever received a summons, you would notice that the bottom part of it states the date, time, and which court you are supposed to appear at. If you fail to show up in court that day, the judge can actually issue a warrant of arrest for you. In a simplest form of explaining it, summonses are like the nice way for the court to ask you to show up. If you ignore the good cop way, the bad cop way comes in through the form of a warrant of arrest. This is found in section 47 CPC which states that a criminal court can issue you with a warrant of arrest if: Before or after the summons has been issued but before the date for you to appear in court, the judge believes that you have ran away or will not obey the summons If the summons has been served and you fail to show up and fail to provide any reasonable excuse for not showing up Some of you would probably be rushing to dig up the wadded up copies of summons you tossed in a corner of your room but before you do, let’s talk about warrants. Warrants basically stay in force forever Once the judge issues a warrant for your arrest, you can’t dodge it because according to section 38(2) CPC, the warrant will remain in force until the court which issues it, cancels it or if it has been executed (means that you have been arrested). Staying/remaining in force means that the police can use that warrant to arrest you even if it is a year later. So, the question then is, who can execute warrants? We all know that the police are in charge of arresting misbehaving citizens but section 40(2) CPC also allows the court who issues the warrant to empower other people to arrest you. The only proviso is that the court must name these non-police officers specifically by name: “The Court issuing a warrant may direct it to any person or persons by name not being police officers and all or any one or more of such persons may execute the same.” When the police officer (or anyone that is named) arrests you, they must inform you of the contents of the warrant but it is not a must for them to show you a copy of the warrant. They only need to show you a copy of the warrant if it is required by court. Upon getting arrested, you must be brought to the court that issued the warrant for your arrest without any unnecessary delays (section 42). However, the police are allowed to not bring you to court in one specific scenario… If you give the police money, they won’t arrest you No. This is not giving them a bribe. Under section 39 of the CPC, when the court issues the warrant, they can include a part that states that if you pay the arresting officer, you can avoid getting arrested. Before we delve into the nitty gritty parts of the section, here is what it says: Any Court issuing a warrant for the arrest of any person may, in its discretion, direct by indorsement or footnote on the warrant that if that person execute a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release that person from custody. Basically, section 39 relates to a surety bond. A surety bond is where another person (the surety) guarantees the court that you would perform your obligations under the warrant (show up in court at the specified time). This surety bond does not automatically apply for every warrant of arrest that is issued in Malaysia. You can only rely on a surety bond if the court, when issuing the warrant, states the number of sureties that is required, the amount of security (money) that you and the surety would have to pay, and when you are supposed to show up in court. If you manage to find the necessary number of sureties and pay the needed security, the police would have to release you from their custody. This means that should you fail to appear in court after signing the bond, you would be in breach of your bond and the courts can issue another warrant for your arrest (section 50). There are actually a lot more procedures on how the security for a bond is to be set and what happens if you fail to show up in court because of an unavoidable emergency but that will be dealt with in a separate article. For now, just know that it never pays to ignore an official document from the authorities. Even if you think that traffic summonses are a small problem, you can still receive an arrest warrant for not showing up in court or at the very least, you would have to pay a bigger fine. Besides, since summonses are used for anything that requires you to attend court, you might never know when you would be a key witness in preventing an innocent man from going to jail."
"Can you legally carry weapons for self-defence in Malaysia? Since a lot of us were young, we were given a bunch of advice to keep ourselves safe: “don’t follow strangers”, “don’t go out alone at night”, “stay away from dark alleys”... We might have even been taught to bring a weapon around in our cars - just in case, right? If you’re reading this article, congratulations for staying alive so far...? The advice seems to have kept you safe and hopefully you never needed to defend yourself with a weapon. But what kind of weapons are we allowed to bring around anyway? Aren’t some of those illegal? Depending on why you were carrying knives, bats, or even guns around, you even might get in trouble with the law. Here’s how to stay safe from both attackers and the law. First, there’s a list of weapons that are 100% illegal Let’s just get it straight from the start that guns are totally illegal unless you have a Carry and Use (C&U) license under the Arms Act 1960. Our friends at CILISOS wrote an article about how to get a license before, which you can find here. We have our laws on illegal weapons under the Corrosive and Explosive Substances and Offensive Weapons Act 1958 (CESOWA). Other than having a mouthful of a name, this law gives us a list of weapons that we common citizens can’t carry around, mostly because they have only one purpose - to cause harm. The list is under the Second Schedule, which are in summary: Flick knives - any blade that has a blade which opens automatically through a button, spring, or other devices connected to the handle of the knife. Gravity knives - any blade released from the handle or sheath by gravity or centrifugal force, that can be locked in place. Any whip made from chains, whether from a bicycle, motorcycle, or any similar type of chainwork. Any type of knuckleduster. Any concealed blade that can be used for cutting or stabbing. Bearing-scrapers (knives with three sharp edges and a sharp pointed tip) Small axes normally used as a weapon (kapak kecil) Any weapons associated with any religion or belief (such as a kris) Any sword or parang normally used as a weapon and not as a farming, gardening, or household tool. Any spear or spearhead. Any crossbow. Any electric-powered weapons (like Stun Guns, Tasers, and Control Clubs) The list basically bans anything that doesn’t have a practical use other than to harm others. The punishment under Section 7(1) for carrying a scheduled weapon is 5 to 10 years of prison. So are there any weapons that we can carry for self-defence? Well... It’s illegal to carry anything that can hurt others as a weapon This is where the lines between legal and illegal start to blur a little. Section 6(1) of the CESOWA states that it is illegal to carry an offensive weapon in public without lawful authority or lawful purpose. As an offender you are liable for 5 to 10 years of prison, plus whipping. But what’s an offensive weapon anyway? Section 2 says that it’s: “...any instrument which if used as a weapon of offence is likely to cause hurt” Contrary to some rumours that go around, there is no law saying that a blade that is shorter than 3 inches is allowed. The wording of the law is broad enough to catch anything that might be intended as a weapon by crooks, but it doesn’t help us understand what is legal and what is not. If we really wanted, even a computer monitor can be used as a weapon. But not to worry, because the main point which makes it clear is... What are you going to use the “weapon” for? The law states that you must be carrying the offensive weapon around with lawful authority or lawful purpose. So for you and I who want to carry something for self-defence, if we ever get stopped and searched, we need to show that we were carrying that metal baseball bat because we’re a baseball player, or we’re carrying that bokken (wooden katana) because we practice kendo. What’s considered lawful? Section 6(3) tells us that being a member of the armed forces, the police force, a lawful visiting force to Malaysia, or any government servant who needs to have such a weapon has lawful authority. It’s also okay to have a weapon as part of your outfit for official or ceremonial occasions. Other than that, you’ll need to have a valid reason to have an “offensive weapon”. For example, if your job involves having potentially dangerous tools around. If you have a knife set wrapped up in your car boot because you are a chef it is probably fine, but you may have a lot of explaining to do if you keep a cleaver underneath the driver’s seat. So in the end can we carry something for protection? Carrying a weapon around purely for self-defence is still technically a crime. This is because there is no exception for self-defence in the CESOWA. However, you may be less likely to be arrested for having a weapon around, say if your profession involves a risk of being attacked (like a lawyer), your job requires travelling late at night, or any other circumstance that might place you at risk. There are stories out there like these on the Lowyat forums of people with weapons in their car being let go by the police after a few questions, but ultimately you should make sure that: The weapon you have is not illegal (a scheduled weapon). You have a lawful reason for having it around. It’s not meant for harming others. You don’t hang around dodgy or crime-prone areas with your weapon. Consider the case of Kamarusham bin Zakaria v Public Prosecutor [2017], where Kamarusham was found by policemen under a bridge with a knife in Kelantan at about 11PM. He had already served 9 months in prison, but it was ruled that the law was meant to curb the use of weapons to commit serious crimes. It was still a crime to possess a dangerous weapon like that, but the judges let Kamarusham go on condition of good behaviour because the circumstances did not suggest he was going to use the knife for a crime. As the judge said: “There were no such scenario as samurai swords found in the boot of the car he was assumed driving with few others inside, which could signify that he and the rest had just come back from a gang fight; or a blood stained parang, or long knife found on him…... albeit an unlawful possession was that the weapon which was just a small knife kept in his trousers pocket was more for self-protection.” - emphasis added by ASKLEGAL Self-defence is okay – within the limits of the law In the end, the takeaway is to make sure you don’t carry lethal weapons around if you’re not supposed to. While a parang looks right at home in a garden, we’d have a hard time explaining why we carry one in the backseat. The police have the right to stop and search you if they find you under suspicious circumstances, so if you really need to carry something for self-defence, make sure that you have a lawful reason to do so. And if you ever have something legitimate to do with a parang, you should probably do it in broad daylight, and not under the cover of night."
"Are you legally required to vaccinate your child in Malaysia? It’s a wonderful time we live in (relatively speaking). Life expectancy is at an all time high (the global average is 71.5 years), technology, healthcare, and less people dying violently worldwide. Part of the longer average life expectancy can be attributed to the invention of vaccines. Diseases like smallpox, polio, tuberculosis, measles, and others are either eradicated or controlled to the point where very, very few people suffer from them. On the flip side of the coin, there’s anti-vaxxers. Some of the premises of anti-vaccination include arguments that vaccines are “unnatural”, or that specific vaccines or ingredients in them are harmful such as thiomersal, which has been blamed for causing autism in children. While the anti-vax movement is probably most associated with western countries such as the US, where a lady in Michigan was jailed for refusing to vaccinate her child, it’s beginning to gain popularity here in Malaysia as well. This movement’s popularity is evidenced by Malaysian anti-vax groups on social media, as well as a growing number of parents who refuse to allow their children to be vaccinated. But wait, will these parents be at risk of being put in jail like that lady from Michigan? Are you required to vaccinate your child in Malaysia? No, you’re not legally required to vaccinate your children As odd as it sounds, Malaysia does not have any legislation on mandatory vaccinations for children. By comparison, all 50 states in the US have laws requiring children to be vaccinated against diphtheria, tetanus and pertussis; polio, measles and rubella, Parents can, and do, refuse to have their children vaccinated, and there are no legal repercussions. The usual practice in schools is that the students are that they are automatically included in the vaccination programs. Remember when we were in school, lining up in the school hall (or wherever you did it), waiting to get a jab in your arm so you can grab the free Milo and biscuits after? We never really thought about it because everyone gets the vaccinations, but our parents could’ve opted us out of the program if they wished. Last year there were talks of making vaccinations legally required by the Health Ministry. So far that remains to be seen, but the Women, Family and Community Development Ministry has indicated that not vaccinating a child could be an offence under the Child Act 2001: “If parents refuse to vaccinate their children and this results in the spread of infections and endangering the children’s lives, it can be considered as a form of child neglect.” – Women, Family and Community Development Ministry, as quoted by The Star Specifically, they think that section 31 of the Child Act 2001 can be extended to include not vaccinating your child. Here’s what section 31(1)(a) says: Any person who, being a person having the care of a child— (a) abuses, neglects, abandons or exposes the child in a manner likely to cause him physical or emotional injury or causes or permits him to be so abused, neglected, abandoned or exposed; It is quite plausible that neglecting or choosing not to vaccinate your child might fall under this section. Many lawyers think that this is quite a stretch, since the Act doesn’t specify vaccinations and no case has been brought to court so far. Aside from legal issues, what’s the worst that can happen, right? There’s the health of your child and other people to be worried about As it turns out, things can get quite hairy. Medical experts linked a diphtheria outbreak last year on the anti-vax movement, along with a rise in other vaccinate-preventable diseases such as measles and tetanus. Very briefly, diphtheria is an infection caused by the bacterium Corynbacterium diphtheriae. Signs and symptoms vary from mild to severe. At first, you’ll develop a fever that’s above 38 °C, chills, skin turning blue, fatigue, sore throat, difficulty swallowing or breathing, among others. Within 2 to 3 days, your healthy respiratory tissues may be destroyed, and a layer of dead tissue can build in your throat or nose. This all can lead to death. In children ages 5 and below, and adults over 40, the fatality rate may be as high as 20%. It’s also notable that until the outbreak, diphtheria was more or less eradicated in Malaysia. With that background laid down, let’s take a look at this scenario: Imagine you have a child. It’s a nice cool evening, and you take little Bobby down to the neighbourhood playground for some fun. Oh, hey, there’s other kids and parents at the playground! Bobby can make some friends and you can make some small talk with the adults. Skip to a week later, Bobby’s in bed with a high fever. You’re worried, you take him to the ER at the nearest hospital and after examining your child, the doctor tells you Bobby has diphtheria! The doctor also says that he probably got it from a kid that wasn’t vaccinated. It’s not hard to put two and two together, and you eventually find out that one of the kids at the playground. This scenario is something that’s an increasing cause of concern for other governments where the anti-vax movement is a lot stronger. In the light of a rise in the number of anti-vaxxers, there have been cases where small outbreaks of infections that are supposedly under control have occurred. An outbreak of measles infections in late 2014, which started in Disneyland in Orlando, was directly linked to children who weren’t vaccinated. This is a real concern as these outbreaks become more numerous. This has led to debates in the US about whether or not children who aren’t vaccinated have the right to attend school. Some anti-vaxxers are thinking of leaving California for other states that allow parents to opt out from vaccinating their children. In Europe, the French government is taking a stance on this issue as well by making it so that parents are obliged by law to vaccinate their children. This also leads to potential legal issues such as who should be responsible if someone dies after contracting a disease from an unvaccinated child. As there are no laws regarding mandatory vaccination for children, there’s no way of telling whether or not the parents can be charged with a criminal act. Suing under tort of negligence is a problematic as well, since there’s no precedent for these cases here. [READ MORE: What is a tort?] Should you vaccinate your children? While it should be noted that many scientific arguments against vaccinations have been debunked, such as being linked to causing autism or containing high levels of mercury. This doctor who wished to remain anonymous gives us his thoughts on the current state of vaccinations in our country. “When I worked in HUKM, cases where children who missed their vaccinations or were not vaccinated at all were quite common. It is quite a shock, because most parents in Kuala Lumpur are well informed and educated. Now that I’m in Sabah, it’s even worse, since the percentage of educated people there are lower. Many children are born in their houses, and hence are not vaccinated at all since birth. It is never to late to catch up on your vaccinations. All you have to do is visit a government hospital.” Part of how vaccines work is tied to a concept called herd immunity. This means that if a large enough percentage of the population is immune from a certain infection, this provides a measure of protection for people who are not immune or not vaccinated. If more people choose not to vaccinate themselves or their children, this form of protection becomes compromised.” – Anonymous Doctor, in interview with ASKLEGAL Long story short, unless the laws are changed, you have the choice whether to vaccinate your children or not. The most important thing is look at the evidence that is presented to you, and make an informed decision."
"7  jobs you can get with a law degree in Malaysia (besides being a lawyer) Let’s be honest, not everyone who studies law will actually end up being a high-flying lawyer. For many of us, we might have gotten into law because it’s one of those dream jobs every parent wants for their child (alongside being a doctor, engineer, etc) or simply because we watched one too many episodes of Suits or Law and Order while in school. But what happens if you decide later on that being a lawyer isn’t the right career for you? Does that mean you’ve wasted all those years on a degree, CLP, and beyond? What else can you do with a law degree other than being a lawyer, right? Have no fear, the British Council is here Well, to a certain degree (heh heh), the scope of job opportunities for law students is a lot wider than you might think. There are the obvious ones such as being a lecturer or a writer for a Malaysian website that focuses on making law easy to understand, but some lawyers have gone into professions that many law students would never have thought possible. The British Council (AskLegal’s first article sponsors, yay!) are holding the Study UK Exhibition in the Kuala Lumpur Convention Centre (KLCC), and there are two FREE law seminars on November 18 and 19 conducted by professors from two prestigious universities in the UK, which you can sign up for by clicking here. The November 18 session will discuss what a career in law is all about, while the November 19 session is a trial lecture to give you a taste of what law classes are like. Now, let’s look into some really interesting occupations lawyers have left the practice for, and how studying law has helped them in their new jobs. 1. From law to……. JOURNALISM! Speaking of parental influence, Terence knows exactly how that feels since he didn’t actually take up law by choice… it was mostly on his parents’ advice because they thought that law paid better than what he actually wanted to do – Journalism (and they were right!). However, unlike the ASKLEGAL writers, Terence actually enjoyed studying law more than he did practicing it (weirdo), and tells us that in law school, he spent more time writing and editing the legal newsletter than actually going to lectures. Career-wise, he experienced what most would consider the highlights of the legal profession; Deputy Prosecutor in the Attorney-General’s Chambers, Federal Counsel doing background research for drafting new laws, and a short time doing civil litigation cases in a law firm. But in the end, the call of editorial work became too strong and he decided to take the plunge and switch careers to journalism. Being very smart people, his editors assigned him to court reporting, which he took to like a fish to water since he wasn’t only familiar with legal terms and court procedures, but also because he was already friends with many lawyers, DPPs, and court officials which led to some pretty impressive news scoops. Eventually, Terence moved to become a features writer, focusing on public interest stories and the Malaysian arts scene. “Overall, I don't regret my law degree at all. I managed to pick up journalism through practice and experience anyway, and knowing legal procedure has really enhanced my understanding of the world. These skills are useful everywhere.” As for how his parents felt, Terence says they weren’t pleased at first, but eventually became happy for their son – looking out for his byline in the papers and pointing it out to friends. Terence has also expanded his writing repertoire to other fields, with a few local award-winning scripts, musicals, and short stories under his belt. 2. From law to……. FILM MAKING! After watching episodes of L.A. Law (The great-granddaddy to Suits) on repeat through her childhood, Bernice knew there was only one course for her when she got into college. After she graduated, Bernice chambered in a small law firm which (keep this in mind if you’re into this sort of thing) gave her more interesting stories to tell, such as visiting the Sungai Buloh prison on her first day of the job to watching a client bring RM1 million in suitcases in order to pay a fine because the court didn’t accept a bank draft. And when she was finally called to the Bar in 2000, Bernice….left. “Of course many people thought I was nuts. I was 24 years old, had been called to the Bar and was leaving. I had passed the CLP at my first go…and I had chambered…why not just go on? Bernice decided to take 2-3 years to pursue another interest that was also arguably influenced by her years watching L.A. Law – she started her own content creation company where she wrote for TV shows and even wrote, produced, and directed her own movie in 2014! If you’re one of those who think that the legal profession is cutthroat, the challenges of the film industry isn’t much different. As it turns out, having studied law made starting out a lot easier for her. For starters, she’s able to read her own contracts to spot any potentially pesky clauses, and has a huge advantage when it comes to Intellectual Property; a big issue when it comes to TV and film. But perhaps most useful of all, because not all clients would pay on time (or not pay at all), she had something that would make any potential debtor think twice before trying to pull a fast one: When I first started, I made sure to print my LLB on my namecards. Very useful for deterring people from nonpayment. Plus, my chambering master taught me the art of writing the meanest letters of demand. That has been infinitely useful. 3. From law to……. DIPLOMACY! After Kai Hau finished his studies and was admitted to the Bar, he opted to not practice but to instead serve in the government sector: “I had to serve my scholarship bond under JPA, so I decided to build my connections in the government sector and broaden my views on other fields – to see learn how a government functions, and how it affects our lives. I did hesitate for a short while [before making the choice], but I told myself why not just make an attempt while we are still young?” And so Kai Hau started his service as a Special Officer to a minster. Special Officers can be very simply described as a secretary to a minister, in charge of assisting in research, speeches, scheduling, and a host of other duties. But how has law helped him in the job? Government decisions and processes are bound by law, so my legal knowledge is very essential for me to understand the whole process. This means we can interpret many documents and Acts faster than other non-law graduates. I also found that the language skills of law graduates is also an advantage.” He is currently an Administrative and Diplomatic Officer in the Prime Minister’s Department, a (from what we can tell) highly sought-after position that involves strengthening the country’s administrative functions, social infrastructure development, economic and public policies, and working closely with ministers to be given the trust and clearance to prepare government documents on their behalf. 4. From law to……. COUNSELING! Nik took up law because she wanted to help people. In fact, she says the highlights of her career was when clients thanked her for helping them out despite the cases being (professionally speaking) small victories. But still, she wanted to do more and realized that, as a lawyer, she was limited in her capacity to help out her fellow Man. After pondering on this for close to 2 years, she decided to go back to school to pursue a career in counseling. You can probably guess the response she got from people close to her: “Some of my friends thought I was crazy – One friend was really angry at me for some reason but some others were really supportive of my decision. Another friend even said that she thought what I did was brave and it helped her decide to make a career change herself.” In her counseling career, Nik says that her legal training isn’t directly useful in the day-to-day aspects of the job but it’s an added bonus when clients are in need of legal information: “It helps me be a better counsellor in terms of observing and navigating the ethical and legal guidelines in dealing with clients, in being able to give the best service to clients who may need legal information, for example in abuse cases.” You might say that Nik went from learned counsel to learned counselor. 5. From law to……. BUSINESS! Most people will tell you that you don’t have to study business in order to run your own business or be an entrepreneur. But how does law and business gel? Well… As a young girl, Adoravelle was keen on two things – designing jewellery and doing something that she could call her own. After she had come back from the UK and started work as a lawyer, the two interests clicked. But now she was in a conundrum… should she give up her job at the law firm and risk disappointing her parents who had sacrificed so much for her education, or give up on her dream of starting her own business? “I made a plan. I would still work at a law firm but would run my business at the same time. It was exhausting, I had an average of 4 hours of sleep. After a year, when the business was beginning to show potential, Adoravelle left the law firm. I took my chambering and short legal practice experience as a learning journey. There was so much I didn’t know and I realized it wasn’t just legal training that I gained. It was work ethics, how to work with others - qualities you definitely require to make it in this time and age. Going to law school definitely helped in the theory part of life. You definitely run into legal issues and I suppose some of my legal knowledge helped, especially when I was doing everything alone and had to deal with a ton of documents. From a part time jewellery business, Medea Treasures has expanded into bags and household decor. Because there’s really no limit to what kind of business you can get into, let’s also look at a barrister-turned-barista... Like most lawyers getting into the industry, Joachim got himself a position at a law firm where he was involved in construction disputes. Although the work experience was constructive, he began to realize that it just wasn’t something that he could see himself doing. I couldn't find the internal motivation to push myself or see myself taking the path senior lawyers had taken. I'm inspired by those who can really push themselves in whatever field they are in but I honestly couldn't find myself doing that. So when Joachim made the decision to leave the law firm for a law management software company, everyone close to him freaked out to the point where parents, friends, and even other lawyers tried talking him out of it. This eventually led to something Joachim could find the drive and inspiration in, with the same kind of motivation he had seen in some of the senior lawyers – Malaysian Specialty Coffee. “I look forward to what I do each day now – to improve and help grow the Malaysian Specialty Coffee movement.” With a business partner, Joachim started a small cafe called Ome by Spacebar Coffee in Georgetown, Penang where they “geek out over coffee but still keeping it approachable”. His law degree came in handy when it came to forming his mindset and connection with the local community, and himself. [Studying law] helped me look at coffee, cafes, and the community in a different light. The activist circles in law are a great bunch and, until today, I use them as my moral compass. The attitude of openness and acceptance is just amazing. People think that it's just about the piece of paper, but it's also the people you meet and interests you acquire while studying. I was introduced to the Ultimate Frisbee sport, which I still play until today. Basically, Joachim went from Malaysian Bar to Malaysian Bar-ista. He got tired of the daily grind of legal work and went to a coffee grind-...okay we’ll stop. 6. From law to……. PRIVACY! Now, we know what some of you might be thinking… how is privacy a job? Well, the actual title is Privacy Professional, which is someone who’s responsible for managing all matters related to a company’s privacy and security obligations. In many aspects, it’s kinda like an intersection between law, technology, operations, and human behavior. After practicing for three years as a lawyer in the field of personal data protection, Tharishni was offered a position as a privacy professional for a multinational corporation in Singapore; where she would oversee data privacy issues within the Asia-Pacific region. “ I was being offered a fairly senior role compared to my years of legal experience. I was also meant to be fairly independent in this new role, and so there was a lot to step up to. “ It should also be noted that although lawyers are usually sought after for this role, it isn’t always the case as the job also overlaps with IT, HR, and others. In fact, privacy professionals can come from all sorts of different academic backgrounds – with the legal training being a nice bonus: Law helped with understanding and interpreting, to a certain extent, privacy legislation. It gave me an understanding as well of the discipline when it comes to reading and writing. Law school was also the foundation for a lot of social interactions with thinking individuals, and that on its own is invaluable. 7. From Teacher to……. LAWYER! Before you close this article thinking that everyone on this list was pressured into doing law by a parent, we present you with Madam Chuah whose case is the reverse… She was encouraged to become a teacher instead! A geography graduate with a Diploma of Education from Universiti Malaya, Madam Chuah spent 12 years as a teacher before deciding to pursue her dream of becoming a lawyer at age 37. By this time though, everyone was pretty sure she knew what she was doing. She eventually called to the Bar in 1996 and started her own legal firm with a partner in 1997, where she did conveyancing and a bit of litigation until a stock market crash slowly turned her focus to Family Law. Basically, more people were getting divorced at the time. And so if there were ever any wise words of advice that you could get from both a teacher AND a lawyer, it would be this: “You must love to read and write, not just in law but in all subject matters, as law is a living and beautiful subject. You must also have a passion to serve the public at large otherwise you would be disillusioned as it won’t be like on L.A. Law.” And we should always listen to our teachers lawyers teachers, right? Or….. you can just become a lawyer :) Of course, we aren’t saying that you’ll be miserable being a lawyer – in fact many lawyers love their jobs and are still passionate about it despite being in practice for years. If anything, it demonstrates the versatility of a law degree and that studying law doesn’t automatically mean you’ll be spending your working life battling out cases in court or drafting contracts. “I advocate studying law if one doesn't really know which career option to choose at a tender age. It is perhaps some of the most useful knowledge to be equipped with, not necessarily for a profession as a lawyer, but in any facet of life one encounters.” – Anne, CEO (not in this article) If you’d like to get a better idea of where law can take you or what studying law is actually like, do check out the two seminars at the Study UK exhibition. As seating will be limited, we highly suggest you book yourself a seat by registering here. Also, if you aren’t interested in studying law but somehow ended up reading this article, there also seminars and exhibitions for other fields of study as well. You can find out more about the exhibition by downloading the Study UK Exhibitions app on Android and iOS. If there’s one thing expressed by all the people we interviewed for this article, it’s that law isn’t just about studying – it’s the experience and additional skills you acquire that will come in useful whether or not you actually decide to become a lawyer. On that note, you’re a lawyer and have always harbored a secret dream of becoming a writer, call us :) “Not having practiced law doesn’t mean the degree was wasted. It means you’re opting to use the way you’ve been trained for some other purpose - the training never goes away.” – Bernice, Content creator."
"Genting Casinos caused a law to be changed... in the UK?? If you were to ask someone what “dishonest” means, they’ll probably say it refers to someone is lying, especially to cheat someone else. While that is how most people would understand “dishonesty,” you may be surprised to know that the Penal Code actually has a definition for dishonesty in Section 24: “Whoever does anything with the intention of causing wrongful gain to one person, or wrongful loss to another person, irrespective of whether the act causes actual wrongful loss or gain, is said to do that thing “dishonestly”.” So you might wonder why someone would take the time to put something meant for a dictionary in our laws? As it turns out, it’s actually pretty useful because the UK doesn’t have such a definition, and they had to change the law on 25 October 2017 after a lawsuit involving a Mr. Phil Ivey and… Genting Casinos. Here’s how the incident went… It all started when Phil Ivey won £7.7 million... The date is 21th August 2012. Phil Ivey, a professional gambler, had won £7.7m from Crockfords, a casino owned by Genting Casinos. To most people, he was probably a man who took full advantage of his lucky streak, but back in the Crockfords security control room, the CCTVs were telling a very different story... In fact, Phil Ivey had a tactic for him to gain a big advantage at the betting tables, in the form of a partner, Ms. Sun. What Ms. Sun did was trick the dealer into orienting certain cards up or down for them to win at Punto Banco, a variant of Baccarat, using a technique known as “edge-sorting” . You could say Ms. Sun made their odds of winning sunnier. The cheating duo basically needed a way to identify certain cards that when drawn (a “good card”), give the holder a higher chance of winning. What the partners wanted was to use “edge-sorting” so that they knew when a “good card” was drawn. “Edge-sorting” basically uses the fact that manufacturing differences cause the left and right edges of cards to have a slightly different pattern. As you can see here, the differences can be very small but trained eyes can spot them, such as those of a professional gambler... So why did a lawsuit happen in the first place? Ivey didn’t think that he was cheating, and instead thought he was using a perfectly legitimate advantage. Genting didn’t agree, and refused to pay him the £7.7m. Mr. Ivey wasn’t happy about this, so off to court they went. Long story short, the case went through enough appeals (twice) to eventually reach the Supreme Court (the highest court in the UK), the judges decided that there was deception when Ivey and Sun tricked the dealer into changing the cards’ orientations. This was enough to show that Phil Ivey was in fact cheating. But why did they need to refer to a higher court twice? Well, there was a major problem with the old law... In the previous UK law, Phil Ivey needed to realize that he was wrong Unlike us Malaysians who have a definition for dishonesty in the Penal Code, the UK legal system uses a test to determine dishonesty after a case that happened in 1982 - R v Ghosh (Crown against Ghosh). A test for dishonesty is basically a list of things that need to be proven to show that someone was dishonest. You can read about what happened here, but basically Mr. Ghosh was a surgeon and he was being charged for taking fees for surgery he did not perform. He tried to say the money was for “consultancy fees”, but the Court still decided he was guilty. This was because: Other reasonable and honest people considered him to be dishonest He himself realized that it was dishonest. Therefore, you could conclude that he was acting with ill intentions. You might have already realized that Phil Ivey couldn’t be caught under this law because he thought “edge-sorting” was a legitimate tactic. So…. The judges changed the rule The Supreme Court said that although Ivey thought he was not cheating, the facts tell us that he indeed was (who else could win like he did if they did not trick the dealer?). As for whether he was dishonest, the judges came and saw that there were major flaws in R v Ghosh, some of which are: The more twisted the person’s moral standards, the more they can get away with. The test as mentioned above can be confusing for jurors to understand (yea, you’re not the only one) Since the judges changed the rule so that to test for dishonesty, UK law doesn’t have to prove that the person realized it was dishonest anymore. Most importantly, this new rule doesn’t let people with twisted moral standards get away with crimes. Imagine a modern Robin Hood robbing you and then getting away with it because he thought it was righteous. Nasty! So how will this affect Malaysians? As you can see above, laws can become unacceptable over time as people’s values change. Laws change as lawmakers update them to the times and technology. This is why lawyers have to keep in touch with the latest developments in law, such as our own Companies Act 2016 that was amended not so long ago. It doesn’t feel significant, but know that law students studying UK law will see Ivey v Genting Casinos in their textbooks for quite some time, which includes a lot of Malaysian students studying in local private universities. As for Malaysian law, we might feel a sense of pride knowing our law would have busted Phil Ivey right away. We have Section 415(b) of the Penal Code on “cheating” which reads: “Whoever by deceiving any person… intentionally induces the person so deceived to do or omit to do anything which he would not do or omit to do if he were not so deceived and which act or omission causes or is likely to cause damage or harm to any person in body, mind, reputation, or property,” What this means is that if you were deceived by someone into doing (or not doing) something that causes loss, then that person is guilty of cheating. The punishment for this is in Section 417 - 5 years of prison, a fine, or both. If you’d like to read the full facts of Ivey v Genting Casinos, or what the judges of the UK Supreme Court had to say, you can find the full judgment here."
"Malaysia's new insurance system automatically deducts your salary but...for what? Every Malaysian knows about EPF and SOCSO. The money needed to sustain the EPF and SOCSO comes from monthly deductions of your salary as well as monthly contributions from your employers. The EPF and SOCSO was implemented to safeguard your future and in case of any accidents at the workplace. But starting in 2018, Malaysians would have another deduction from their salaries. The government recently passed a new bill called the Employment Insurance System Bill 2017 (“EIS 2017”) and it is expected to be enforced in January 2018, with payouts from the system beginning in January 2019. However, this bill has been met with opposition from some parties such as the Malaysian Employers Federation as they argue that the EIS would increase the operating costs of businesses and affect them further in a time of economic downturn. On the flip side, our Prime Minister has stated that the EIS would actually benefit both employers and employees in the long-term. With these two conflicting sides, the first question is… What is the EIS and what does it do? If you are thinking, “Wah. Employment insurance means I no need to buy insurance anymore”, you might want to pause there and not make your insurance agent cry by cancelling your policy. The Employment Insurance System does not mean that the government now buys insurance for you. The EIS is meant to help workers who have lost their jobs by providing them with certain benefits to help them back on their feet and would be administered by the Social Security Organisation (“SOCSO”). Before we delve into the benefits that the EIS would provide, it is important to note that this law would not cover those who have voluntarily resigned. It covers workers who have lost their jobs through: Voluntary or mandatory separation scheme Redundancy through business restructuring Redundancy through closure of business Force majeure (unforseeable) events Constructive dismissal Threats made to the employee/his family (this applies when the boss threatens to kill you/your family and you resign and includes sexual harassment threats) [READ MORE: What can I do if my boss fires me for no reason?] Basically, if you are the one who tells your boss to “fly kite”, you are not covered by the EIS and the benefits provided by the EIS are pretty tantalising. The first benefit that Malaysians would receive is career counselling and job training. This career counselling and job training is meant to help workers who have lost their jobs find new ones or even transition out of the industry they have previously been in. The Human Resources Minister, Datuk Richard Riot, states that this move would help increase the productivity of companies through the employees who have been trained. This benefit is not as contentious as the other benefit that workers would receive. Aside from providing job counselling and training, the EIS also aims to implement payouts for those who have lost their jobs. These payouts would basically be a portion of your salary (from when you were employed) and will be paid for about 3-6 months during the time you remain unemployed. This means that if you were made redundant, the government would help you by paying you a portion of your previously drawn salary for a maximum of 6 months. After this 6 months ends, you would probably not receive any more payouts. However, given the combination of the career counselling and job training, it is quite unlikely for you to end up unemployed for more than 6 months. Aside from that, you would also be allowed to claim job search allowances and training allowances. By now, you are probably wondering where the funds for this payout would come from. Would it be from increased taxes? Well, no but the money does come from a familiar source. The EIS is automatically deducted from your salary The EIS would be run by you by deducting a certain amount from your monthly salary. Before you freak out and start cursing the government for taking away your hard earned money, the percentage that would be deducted for contributing to the EIS fund would be 0.2% of your salary. Your employer would also have to contribute an equal amount of 0.2% which means that the total monthly contribution per insured worker would be 0.4%. To put it in perspective, we can refer to the EIS bill which we found online but bear in mind that since this is just a bill (and not an Act), it may differ from the actual law that will be passed (due to debates in Parliament and any amendments that may take place). If you are opening the link to take a look at the bill, the page you would like to refer to would be on page 57 where a full schedule of the rates of contributions for different salaries can be found. It starts from as low as RM30 and goes up to RM4,000. Any wages above RM4,000 would contribute at the same amount. Also, if you are curious as to whether the government would be contributing to the EIS, the answer is no. However, according to Datuk Richard Riot, while the government will not contribute to the EIS, it has allocated RM120million towards it. Now that you have seen how much you would have to contribute monthly, the next issue becomes whether you would be allowed to opt out of this. The answer is no. Under sections 14 and 15 of the EIS, all employers would have to register their industry accordingly and those who have already registered with the Employees’ Social Security Act 1969 would been deemed to be registered. Section 16 also tells us that employees would also have to be registered by their employers accordingly: “All employees in the industries to which this Act applies shall be registered and insured by the employers— (a) in the case of employees who are employed on or before the date the industries are registered under section 14, on the date the industries of the employers are so registered; and (b) in the case of employees who are employed after the date the industries are registered under section 14 or 15, within thirty days from the date the employees enter into employment, in such manner as prescribed irrespective of the amount of wages.” Any failure to carry out the registration process in sections 14-16 can result in you being slapped with a RM10,000 fine and/or jail time for up to 2 years. But wait. Did the government simply do this without prior planning? The government did their research on this We may grouse about further deductions to our salary or even argue that we are moving towards a socialist state by implementing the EIS fund. The interesting thing is that the government did not jump into this law through a moment’s whim. The research and planning for the EIS begin wayyyyy back in 2009, after the 2008 financial crisis. There were even international bodies involved in the research and providing our government with various reports about the feasibility of such a fund. You can read up on the full chronology of the government’s actions before implementing the EIS fund here and you can find the slides for it here. If you the read the report, you will note that multiple variations of the EIS has been implemented in 72 out of 183 countries in the world and it has been credited with stabilising the economy in South Korea after the 1998 Asian Financial Crisis. It would seem that the EIS is a great mechanism to have in place and Malaysians would just have to sit tight and wait until payouts roll out in January 2019 to judge for themselves."
"If your boss refuses to pay you in Malaysia, what can you do? Let’s begin by sitting back and imagining two scenarios: Scenario 1: Taking the elevator up to the floor your office is on, lukewarm coffee in your hand, you smile a little as you’ll finally be paid for the last three months of work. You haven’t been paid for three months, and your boss promised you the money this month, all in one go. To you surprise, your boss is waiting for you at your cubible. “I’m sorry, Jimmy, your pay will have to wait a week,” said your boss. Scenario 2: You hate your company you’re working for now, and you’ve been thinking of leaving for the past few weeks. Lo and behold, another company makes you a better offer; higher pay, better benefits, all the bells and whistles. You resign, and begin working at the new company. Wait a minute, your previous company still owes you half a month’s wages, and they refuse to pay you. What in tarnation? In both cases, you’re broke, and this is also the proverbial straw that broke the camel’s back. Is there anything you can do? Yes, turns out that there is Before we get into the nitty gritty, there’s a catch. How we usually use the word “employees” is different from how it is used in the legal field. The Employment Act 1955 (Peninsula Malaysia only) applies to “employees” - defined as people who are earning less than RM2000 monthly. However, all is not lost. Section 69 of the Employment Act 1955 allows the Director General of Labour to settle disputes regarding wages for employees with monthly pay of up to RM5000. Also, if you’re a manual labourer, it doesn’t matter what your salary is. There’s a different Act governing people who earn above RM 5000 a month but that’ll be covered later in the article. So… when is your boss supposed to pay your wages? You are supposed to be paid within 7 days Section 19(1) of the Employment Act 1955 says: Subject to subsection (2), every employer shall pay to each of his employees not later than the seventh day after the last day of any wage period the wages, less lawful deductions earned by such employee during such wage period. This means that you are to be paid within 7 days after the last day of any wage period (usually a month), meaning that your salary for October should be paid by the 7th of November. The example in the introduction (3 months of nonpayment) is a very extreme violation of this section. When you quit or get fired Section 20 gives us the law on payment of wages on normal temination of contract: The wages, less lawful deductions, earned by but not yet paid to an employee whose contract of service terminates in accordance with section 11 (1) or of section 12 shall be paid to such employee not later than the day on which such contract of service so terminates. This means that when your contract with your company is done, and you’re leaving, your wages must be paid on the day on the termination of the contract of service. When you quit or get fired without notice Generally, when you, as a boss, terminates (fires) someone (HASTA LA VISTA BABY) or are terminated yourself, notice has to be given. Notice is when you let someone know that something is gonna happen within a reasonable time frame, although the parameters of a reasonable time frame differs according to situation. If you DO terminate (or are terminated) without notice, you have to pay (or be paid) the sum that would have been accrued for the period of that notice under section 13(1). An example of this is if you were fired without notice, and the notice was supposed to be for 4 weeks, you would be paid including that period of 4 weeks. Another situation is when there is a breach of the condition(s) in the contract of service under section 13(2). Misconduct by the employee [section 14(1)] and the employee being placed under risk that he didn’t sign up for [section 14(3)]. All of the information the above two paragraphs brings us to section 21. When the employer terminates the contact of service of an employee without notice in accordance to sections 13(1), 13(2) and para 14(1)(a), the wages earned by the employee up until and including the day preceding the termination must be paid no later than on the day of the termination of the contract When the employee terminates his contract of service without notice in accordance with sections 13(1), 13(2) and para 14(3), those same wages has to be paid no later than the third day after the day on which the contract was terminated. TL;DR: When a contract of service is terminated, the employer has to pay their now ex-employee the wages they have earned in a set amount of time. Also note that the Employment Act only applies in Peninsular Malaysia and Labuan. What if they don’t pay or refuse to pay the wages? What steps can you take to recover your wages? Monthly wages of RM 5000 and below There are a few options available. For the people whose monthly wages are RM 5000 and below, you can seek redress through filing a claim in the Labour Court. What is the Labour Court, you ask? It’s not a court, at least not in the traditional sense. Here it refers to Inquiries before the Director General of Labour as set out in section 69 of the Employment Act. Monthly wages above RM 5000 Lets kick it up a notch. What if you earn MORE than RM 5000 a month as an employee? We look to the Industrial Relations Act 1967 for answers. Section 2 of the Act defines what a workman is: ...any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purposes of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute. So as long as you are an employee, you are considered a workman under the Act. You’re still covered! If you and your boss can’t settle things, the Industrial Relations Department will step in. If the matter still cannot be settled, the department will report to the Director General The Director General will then try to help the parties reach a settlement (section 18). If that doesn’t work out, the Director will report to the Minister of Human Resources. The Minister will then try to settle things (section 19A). If that falls through, then he may refer the matter to the Industrial Court for arbitration (a way to settle disputes). After the case is heard in the Industrial Court, an order called “Award” will be given Any party may then appeal to the High Court, up to the Federal Court Most disputes involving wages involve (relatively) small amounts of money, so it’s not really worth hiring a lawyer to represent you. It’s totally fine to just represent yourself and don’t worry, because it’s not as formal as traditional court proceedings. The only time you’d need legal representation is when the case gets appealed to High Court or above."
"5 ways Muslims can get divorced in Malaysia Some of you already know that Muslims in Malaysia follow a different law from Non-Muslims when it comes to marriage. Islamic Family Law is provided under Islamic Family Law (Federal Territory) Act 1984 (IFLA), but Islamic law also varies by state in Malaysia, so we focus on the Federal Territories law for this article. But unless you’re already familiar with Islamic law, you probably didn’t know that there are 5 ways for Muslims to get divorced in Malaysia. [READ MORE - 5 Malaysian marriage laws you (probably) didn't know about] Civil law only uses 1 ground for divorce: irretrievable breakdown of marriage. So why are so many ways needed in Islamic law? Because the origins of civil and Islamic law are different, and so the laws use different ways to protect the husband and wife. You can find a list of interesting civil marriage laws we covered here, but let’s get to the Islamic ones for this article. 1. Talaq The most common method of divorce. There are certain procedures to be followed under Section 47 of the IFLA, but basically, the husband says “talaq” to his wife, which roughly translates to “I divorce you”. If this sounds unfair for the wife, you’ll be happy to hear that if the wife does not consent to the divorce, the Syariah Court will order a conciliation committee to help reconcile the couple under Section 47(5). Only if the couple can’t reconcile, then the Court will recognize the husband’s pronouncement of divorce. The talaq is a pretty flexible law that allows the couple to get back together under the ruju’ (return to original married state) rule in Section 51. Talaq can happen 2 times and the couple can still get back together, with only the 3rd pronouncement of talaq being a “permanent divorce”. They must get back together within 3 months of the divorce though, which is the period of time Syariah law calls ‘iddah. There are some technicalities to the ruju’ rule, but it can be understood that both the husband and wife must give their consent to get back together. After the 3rd talaq, the couple cannot re-marry unless the wife has married and divorced another man. 2. Khul’ Also known as cerai tebus talaq, this basically involves the wife offering payment to the husband to pronounce talaq and release her from marriage. It’s covered under Section 49 of the IFLA and the payment can be as low as RM1, but the Syariah Court can decide on the amount based on the parties’ means under Section 49(3). This divorce is considered permanent and ruju’ cannot be used to get back together. 3. Ta’liq You’ll find the meaning of ta’liq under Section 2, which is “a promise expressed by the husband after solemnization of marriage in accordance with Hukum Syara' and the provisions of this Act”. This kind of divorce is usually used when the husband is not being a good partner to his wife, in essence, when he breaks the promise. The married woman applies to the Syariah Court to get the divorce declared, as stated in Section 50(1): “A married woman may, if entitled to a divorce in pursuance of the terms of a ta'liq certificate made upon a marriage, apply to the Court to declare that such divorce has taken place.” Take the case of Aminah lwn Ahmad (1971) 3 JH 81 for example... In the ta’liq, it was stated that divorce will happen if the husband leaves, does not consummate the marriage, or doesn’t give maintenance to his wife for a month without a valid reason. Aminah’s husband deserted her for 3 months without a valid reason. The husband was summoned to Court and there it was decided that the ta’liq took effect - the couple was divorced. 4. Fasakh Provided in Section 52 of the IFLA, this ground for divorce is usually requested by women due to the incapability or disability of their husband. The list of reasons a woman can file for fasakh is very long, but in summary it covers the following situations: The husband went missing The husband neglects or fails to provide for his wife The husband was impotent, insane, or has leprosy (a very rare disease these days) The husband abuses her The husband refused to consummate their marriage The wife has to obtain proof of one or more reasons provided in the law, and then get an order to dissolve the marriage from the Syariah Court. 5. Li’an This type of divorce involves the husband accusing his wife of adultery or denies that the child his wife is pregnant with is his. This is governed under Section 50A and the exact procedure differs by state. Usually this method of divorce will be used if the husband accuses his wife of adultery but cannot produce 4 credible witnesses. Again, the exact procedure differs from state to state (here is Kelantan’s), but generally this is what happens. First, the husband has to swear 4 times on the Almighty’s name that his wife has committed adultery, and then swears one more time that if he is lying, he will receive the Almighty’s wrath (laknat). Then the wife also swears 4 times in return on Almighty’s name that she did not commit adultery. And she’ll swear that she will receive Almighty’s wrath if her husband’s accusation is true. This type of divorce is also one of the permanent ones (like after the 3rd talaq), but the husband and wife can never re-marry each other ever again. If you need to file a divorce, get a good Syariah lawyer We’re basing this on the information we have from the Federal Territories Act, but remember that the exact laws differ from state to state, and this is just a very basic view into Islamic family law. We hope this article is just a background and the 5 ways are just for your general knowledge. If you ever end up needing to file a divorce though, find a good Syariah lawyer to advance your case. If you don’t know where to start, Sisters in Islam (SIS) have a legal advice service for Muslims who want to know more about their rights."
"How do I know if medicine and cosmetics in Malaysia are safe to use? Have you ever come across a post by your friend on Facebook and it sort of reads something like this, “DID YOU KNOW THAT ACNE CAN BE SOLVED BY JUST ONE EASY STEP? BRAND XX IS SO EASY TO USE. JUST APPLY IT ONCE A DAY AND SEE THE RESULTS IN 3 DAYS. CONTACT ME NOW FOR MORE INFORMATION. #BRANDXX #THEBEST” If you have seen posts (or ads) like these, then you would have been exposed to the world of supplements and cosmetics. More specifically, we are talking about those supplements or cosmetics that are lesser known and mostly marketed through social media. For example, instead of Sephora, it might be Sefarra, a newly opened cosmetic store that has been accused of copying Sephora and selling fake products. Instead of supplements and medications properly dispensed by your doctor or pharmacist, it might be an ad on some online site, alluding to uh...male powers. Aside from that, just a month ago, the police busted a brother-sister gang in Penang and seized 18kgs worth of fake medicine from them. But the question is, how do you even know if those products are safe for consumption/use? You could always stick to more established brands such as products by Dr. Vida but even some of her products were recently banned by our Ministry of Health for containing scheduled poisons such as mercury. If you are curious, acute exposure to mercury can cause psychotic reactions and continued exposure can lead to violent muscle spasms and death. You could try reading the labels but who can even tell what those weird words say. So, are these products controlled by our government? [READ MORE: What can you do if you bought fake food in Malaysia?] Yes, they have to be registered with the Ministry of Health So, the thing is, there are a plethora of different laws that govern (and overlap) the world of drugs and cosmetics such as the Sale of Drugs Act 1952 which gave birth to the Control of Drugs and Cosmetics Regulations 1984 and the Drug Registration Guidance Document which also mentions the Dangerous Drugs Act 1952 and the Poisons Act 1952 and the Medicines (Advertisement and Sale) Act 1956 and the...well, you get the point. There are tons of laws that govern drugs and cosmetics. However, for the purpose of not making this article longer than our average life span, we won’t reference all the laws here but only certain ones. Also, an important point to note is that the control of these products are done by the National Pharmaceutical Regulatory Agency (“NPRA”), which is a part of the Ministry of Health. The first law that we would be looking at would be the Control of Drugs and Cosmetics Regulations 1984 (“CDCR 1984”) which talks about the kinds of registrations needed for drugs and cosmetics. Registration of drugs and pharmaceutical products For clarification, registration of drugs and pharmaceutical products are different from medicines which are registered with the Ministry of Health (not NPRA). This article will not deal with the registration of medicine with the Ministry of Health. Under Regulation 7(1) of the CDCR 1984, no one is allowed to manufacture, sell, supply, import, or possess or administer any product unless the product has been registered and the person holds an appropriate licence that has been issued under the CDCR 1984. “(1) Except as otherwise provided in these Regulations, no person shall manufacture, sell, supply, import or possess or administrator any product unless - (a) the product is a registered product; and (b) the person holds the appropriate licence required and issued under these Regulations.” So, the next question is, how is a licence given? There are different kinds of licences that can be issued. Regulation 12 tells us that the Director of Pharmaceutical Services can issue either: A manufacturer’s licence which allows the holder to manufacture, and sell by wholesale or supply the product A wholesaler’s licence which allows the holder to sell by wholesale or supply the product A clinical trial import licence which allows the holder to import any product (whether registered or not) for clinical trials only An import licence which allows the holder to import and sell by wholesale or supply the product These licences must be held alongside a properly registered product (Regulation 8). Beyond that, regulation 7B also gives consumers an added protection by specifying that a product would not be considered registered if it is found to contain additional ingredients aside from the ingredients of the registered product and if it was labelled with a different label. For example, if Product A is registered with ingredients B and C, it would lose its registered status if the authorities discover ingredient D in it. The same goes for labelling, if Product A is registered with the label of a cold medicine and later labelled as muscle relaxants, it would similarly lose its registered status. Now that we are done with a super brief outline of how registration for medicine works, let’s move on to cosmetics. Cosmetics The regulations for cosmetics are slightly different. There are bunch of ways that cosmetics can be prohibited from being manufactured, sold, supplied, imported, possessed or admnistered. This is found under Regulation 18A and it states that cosmetics cannot be manufactured or sold if: The cosmetic has not been notified with the NPRA The person is a not person who has been designated to place the notified cosmetics in the market The cosmetic is a notified cosmetic but it has been mixed with poison (as defined by the Poisons Act) The notified cosmetic has been mixed with a registered product (drugs, traditional medicine etc.) The cosmetic is labelled with another name The cosmetic has been labelled in a way that does not comply with any directives/guidelines The cosmetic’s notification has been cancelled by the Director of Pharmaceutical Services The cosmetic is labelled with words, symbols or safety features that claim to be true Another interesting point to note is that aside from the plethora of rules that prohibit the sales of cosmetics, there are additional guidelines to adhere to in this Cosmetic Claims Guideline. We won’t go into too much detail but it essentially details how a product can be considered a cosmetic and what claims cosmetic products are not allowed to make. For example, most of us would not know this but skin products are not allowed to claim that they can reverse or prevent changes brought about aging. [READ MORE: 5 common sales tactics in Malaysia that are actually illegal] Now that we have given you a brief outline on how the registration and notification process works in Malaysia, let’s move on to the more pressing question… How can I tell if the product is fake? The good news is that you don’t even have to get up from your chair to check if that BB cream you are applying is secretly mercury-laden and banned or if the fish oil pills you are popping are actually potato oil pills. All you have to do is head over to the NPRA’s search engine which you can access here and search for the products you have either by their name, manufacturer’s name, serial number etc. It is as easy as that and once you are assured of their genuine status, you can use your products worry free. The NPRA’s website also contains a list of registered products and notified cosmetics that have had their status revoked by the NPRA and you can find them here. Aside from checking the details online, registered drugs and pharmaceuticals also have an additional point of protection through the use of the hologram security device (Meditag). This means products such as registered pharmaceutical products, traditional products, and natural products would have to be tagged with this Meditag and you can check the authenticity of these stickers at any pharmacy that has a Meditag hologram decoder. Aside from that, there is also an app that you can download here to verify the authenticity of the Meditag sticker. So, if you find out that the product you have is fake, you can… File a complaint with the NPRA The NPRA has an online complaints form that you could use to submit any complaints. You should definitely submit a complaint if you have suffered adverse reactions from any products that you use so that the Ministry of Health can act on it. Aside from filing a complaint with the NPRA, you could possibly bring a separate complaint, as a consumer of the product, to the National Consumer Complaints Centre. Similarly, a complaint can be made by easily filling up an online form here. Also, the information that can be found in this article is merely a drop in the ocean of regulations and laws that the government has enacted to protect Malaysians from unsafe products. At the end of the day, be a wise consumer. Never ever take an advertisement or recommendation of a friend at face value. Even if the products are properly registered/notified, the phrase, “one man’s poison is another man’s meat” applies. You would never know how certain products, which have been proven to work with your friends, might react with your body. So, play it smart and take the extra step to complete your own due diligence."
"Does Malaysian law allow cannibalism if you had no choice? If you’re a cannibal, never show up late for dinner, or you may get the cold shoulder. Jokes aside, cannibalism is a major taboo in most civilizations, although cases still happen in modern times; whether as a last resort, in times of famine, or just simple curiosity. The question of how responsible someone can be for their actions when it comes to their own survival has been asked since civilization began, most notably in the Plank of Carneades; a thought experiment by the Greek philosopher Carneades that presented a scenario of two shipwrecked sailors (A and B) and a plank that only supports one person. If B pushes A off the plank in order to survive, Is B legally and morally responsible for A’s death? If you’re having trouble answering this hypothetical question, imagine how hard it must be for lawmakers to do the same – especially when it brings real-world consequences. In order to see where Malaysian law stands on this, we first have to look at a book called….. Life of Pi Wait. What? If you remember, the name of the tiger trapped on the boat was Richard Parker. This wasn’t a random name invented by the author. In fact Yann Martell commented on the choice of name, saying “So many Richard Parkers had to mean something.” He was referring to a strange series of real-life and literary coincidences where people named Richard Parker have been involved in shipwrecks, a famous one being an Edgar Allen Poe novel where a cabin boy named Richard Parker was eaten by the other survivors after their whaling boat sank. Well, the case we’re about to examine involves cannibalism that the perpetrators tried to defend as necessary. This was the case of R v Dudley and Stephens which happened in the UK in the 1860’s, where the survivors of a shipwreck claimed they had no choice but to kill and eat a cabin boy named…..Richard Parker. It all started because a rich guy decided to buy a boat Yachts are nice. Many people aspire to acquire one, it is a symbol of wealth and excess. In 1867, an English yacht called the Mignorette was purchased by a man from Australia named John Henry Want. At that time, the only feasible way to get the ship from the UK to Australia was to sail it there. Want’s initial attempts to gather a crew to sail the yacht were unsuccessful, as the Mignorette was a relatively small vessel that wasn’t made for long voyages, and the journey was quite lengthy (24,000km). You might say Want really want-ed to make the trip, as a crew of four was eventually assembled. They were Edwin Stephens, Edmund Brooks, Richard Parker, and the captain; an experienced yachtsman named Tom Dudley. Richard Parker was only 17 years old, and this was his first voyage out on the open seas. All of them were aware of the customary dangers of a long ocean voyage, but none of them were prepared for what was coming. The sea is a cruel mistress The crew set off on 19 May 1884. Two weeks later, a gale (wind from 50 - 102 km/h) brewed around the Cape of Good Hope, about 2500 km off the coast of South Africa. This sort of weather isn’t unusual in itself, but Capt. Dudley gave the order to heave to (setting the ship to take a “break” or to wait out strong winds) so that the crew could get a good nights sleep. As Richard Parker was sent down to get some tea made, the bulwark (the upper wall of the ship – see fig. 1) got washed away by a strong wave. Right away Dudley knew they were doomed and the yacht was going to go down. The crew escaped on a shabby lifeboat with some navigational tools, two tins of turnips (what a choice) and no fresh water. The Mignorette sank within five minutes of the launching of the lifeboat, on the 5th of July. Well, the ship’s sunk. Surely it can’t go much worse, right? BOOM! Shark attack! Yup, aside from fighting off imminent starvation, they also had to fend off a shark that night. Everyone held it in for two days, when they shared the first tin of turnips. One thing thing they didn’t have though, was water. Considering they were in the world’s largest body of water (the sea), it was sadly ironic that they couldn’t drink any of it. This is because humans can only produce urine that is less salty than seawater, so if you drink it, your body will keep making urine to expel all the excess salt. Simply put, if you drink seawater, you’ll eventually die of….thirst. That’s why, when they caught a sea turtle, they thought their hydration problems were over. The turtle yielded enough meat to last them about a week, along with the second can of turnips. This solved their food problem for the time being, but not their thirst since the turtle’s blood got contaminated with seawater, making it undrinkable. It gets worse. Failing to catch any rainwater, the crew resorted to drinking their own urine to try to survive. Uric acid tea probably didn’t agree with Richard Parker, so he later started drinking seawater and, for reasons we previously mentioned, fell sick from it around 20 July. The “Custom of the Sea” These are customs said to be practiced by officers and crews of ships out on the open sea, and one of these customs is the practice of shipwrecked survivors drawing lots to see who gets sacrificed and eaten so the others have a higher chance of survival. With Richard Parker possibly in a coma, Dudley suggested that he be killed and eaten, our Mötley Crüe (ayy classic rock fans) discussed the possibility of going ahead with this grisly custom, but it went nowhere as Brooks heavily disagreed with killing Richard Parker. Later that night, Dudley tried to convince Stephens by saying that Parker was dying anyways, and Stephens had a family waiting for him back home. Both men agreed to wait till morning and see. “The boy is dying. You have a wife and five children, and I have a wife and three children. Human flesh has been eaten before.” – Capt. Dudley to Edwin Stephens, quote sourced from the BBC The next day, seeing that the prospect of getting rescued was slim at best, Dudley signaled to Stephens and Brooks that it was time to end Parker’s life. Killing Parker before he died naturally would better preserve his blood to be drunk. Parker was killed by having a pen knife pushed into his jugular vein. Dudley and Brooks consumed most of the macabre feast, Stephens had very little. It also seemed that life decided to present them with an ironic twist – not long after killing Richard Parker, the men managed to catch some rainwater to drink and, a few days after that, were rescued by a German ship. This was July 29th. They had spent 24 days shipwrecked at sea. Aftermath and judgement Dudley was very straightforward with what happened to Richard Parker and did not attempt to hide the fact that Parker was, to him, an unfortunate sacrifice due to necessity. The people in Falmouth (where they were dropped off by the German ship) were largely sympathetic towards the crew. What happened was terrible, but Dudley justified that they followed well-established maritime traditions. But there’s a twist: There was a similar case ten years prior, and English authorities were looking to settle the law in regards to this custom once and for all. The survivors appeared before a magistrate in Falmouth, and Brooks was exonerated (cleared from fault) because he was deemed to have little to do with the planning or the murder of Parker. Dudley and Stephens, however, were arraigned (called to court) on murder charges. During the trial in Exeter, Judge Baron Huddleston began by giving a detailed explanation as to why the law could not recognize the defence of necessity for murder. The jury was later presented with 2 choices: to find the two men guilty, or to return a “special verdict”, an unusual judicial procedure which referred the case up to a higher court. At the time the public sentiment generally backed Dudley and Stephens, and so the case was pushed up to a higher court; the Queens Bench. The captain and Stephens were then convicted of murder and sentenced to death, with a recommendation for mercy. In the end, the home secretary seemed to have agreed with the recommendation as they eventually stepped in and settled on a sentence of six months of imprisonment. So… what does this case have to do with us Malaysians? Well, this case established a precedent (where old cases are used as a reference for judgment) in the common law world in that necessity is not a defence to murder. Lets look at how the defence of necessity works in Malaysia. Section 81 of our Penal Code says: Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. That means that something is NOT an offence if is done with the knowledge that it will cause harm – but without a criminal intention – in order to avoid harm to another person or property. The act further explains with its own example; a person pulling a burning house down in order to save other people’s lives and property. An Indian case of Mohd. Bilal & Another v State talks about this. Basically Mohd. Bilal used an electrical cable to lasso his father to prevent him from walking away when he was seething in anger, to prevent him from injuring himself. The father was consequentially strangled by accident and died. The necessity defence was invoked because Mohd Bilal only had the intention to stop his father from getting hurt, not to kill him. The court allowed the defence. Why is an Indian case even relevant? The Indian Penal Code is similar to ours so much so that Indian law has also been referenced in Malaysian courts before. So… does that mean Malaysian law allows cannibalism if it’s necessary? Perhaps quite thankfully, the legal status of cannibalism out of necessity still remains as a question asked by curious law students, such as the notes in this PDF (pg. 22) where a Dr. Siti from Universiti Malaya is of the opinion that there must be a very strong justification if it involves cannibalism as a private defence. In a way, the answer to whether you can eat someone out of necessity in Malaysia remains, like the Plank of Carneades, an academic thought experiment. But there’s one way to avoid putting this to the test – if you’ve made it in life and decide to buy yourself a boat, don’t hire anyone named Richard Parker."
"Ghostbusting in Malaysia can get you busted by the PDRM. Here's how to avoid it. Talismans? Check. Flashlights? Check. Bamboo binoculars? Check. Running shoes? Check. Some kuih-muih and Milo in case you get hungry? Check. Everything you need, tucked safely in your backpack, for your Halloween ghost hunt. But wait! Do you have a lawyer’s number in your speed dial – or better still, one waiting on standby? Because you may run into something much scarier (and real-er) than ghosts – the law. While we may be familiar with the physical and supernatural challenges from the extremely thrilling practice that is ghost-hunting, many of us fail to remember that it can have legal repercussions too, depending on the circumstances under which it is carried out. Whether or not you actually believe in the supernatural, it seems to be a part of the Malaysian psyche regardless of race or religion; as can be exemplified by the notable number of supernatural events that have headlined our news in the past, as well as the recent news of a local “ghostbuster” who can conduct remote exorcisms for RM200 or less. However, if you’re not one who subscribes to the belief that curiosity killed the cat and would like to get your adrenaline rush by going ghost-hunting this Halloween anyway, here are 5 steps to keep you safe and lessen your chances of getting into trouble with the law! Step 1: Do not simply enter graveyards WHY NOT? Section 297 of the Penal Code – Trespassing on burial places, etc. (In part): Whoever, … with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in … any place set apart for the performance of funeral rites, or as a depository for the remains of the dead or offers any indignity to any human corpse or causes disturbance to any person assembled for the performance of funeral ceremonies, shall be punished… If you thought of the most obvious place where you’d be likely to come across a ghost, a graveyard would probably be the first thing that comes to mind. Naturally, if you would like to mingle with the dead over servings of Halloween snacks while ghost-hunting, the best place to do so is probably where they rest. Climbing over the fences of a graveyard that has been sealed away from the public or entering the vicinity of a burial ground once visiting hours have ended, however, can be considered as trespassing – an act that Section 297 of the Penal Code recognises as an offence against the law. Generally speaking, should you find that the gates of a graveyard are closed, do not attempt to open them or enter the area in question anyway – even if you may have relatives buried there. If the thought of possibly having an extra “friend” follow you home afterwards doesn’t prevent you from trespassing on a graveyard, being escorted to the police station by a PDRM friend might. WHAT CAN IT COST ME? Imprisonment for a maximum of 1 year, a fine, or both. Step 2: Don’t simply claim that something is haunted WHY NOT? Section 505(b) of the Penal Code – Statements conducing to public mischief (In part): Whoever makes, publishes or circulates any statement, rumour or report— … with intent to cause, or which his likely to cause, fear or alarm to the public, or to any section of the public where by any person may be induced to commit an offence against the State or against the public tranquillity You’ve just returned from your ghost hunt, and can’t wait to share your discoveries or theories with the world. You prop open your laptop, log in to all your social media accounts, and begin crafting statements about the supposedly haunted place that you just visited. Your fingers tremble with excitement, and your heart races as you recall the vivid details of your adventure. Before you click on the ‘share’ option and publicise these statements though, we strongly urge you to think twice as, depending on what you posted, you may find yourself haunted by Penal Code violations such as Section 505(b) above, or under the Communications and Multimedia Act for spreading false news online. And if the place you’re referring to is privately owned (such as a hotel or someone’s house) you may find yourself being sued for defamation if your statements affect the public perception’s of a place or object. [READ MORE: In Malaysia, shaming someone on social media can land you in jail] Of course, you can try to argue your way out by supporting your claim that the place is indeed haunted… but good luck convincing the ghost(s) to show up in court. There are some places even the supernatural will avoid (j/k). WHAT CAN IT COST ME? Imprisonment for a maximum of 2 years, a fine, or both. Step 3: Refrain from involving religions WHY NOT? Section 295 of the Penal Code – Injuring or defiling a place of worship with intent to insult the religion of any class (In part): Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons, … with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished … Let’s face it: it can be hard to talk about supernatural affairs without involving any kind of religious connotation. This is especially the case in largely religious and conservative communities like Malaysia, where spirituality is regarded as a sensitive issue and must be treaded on lightly. As such, before you go ghost-hunting in an abandoned place of worship, in a burial ground that belongs to a specific religion, or just go around splashing bottles of holy water while brandishing a sacred object as a weapon of sorts while hunting, you might want to reconsider your choices. If news of your ghost hunt and your usage of religious objects as a means of defense ends up offending anyone, Section 295 of the Penal Code could see you landing in a cauldron of double double toil and trouble, much to your dismay. WHAT CAN IT COST ME? Imprisonment for a maximum of 2 years, a fine, or both. Step 4: Do not trespass on houses WHY NOT? Section 22 of the Minor Offences Act 1955 – Wilful trespass (In part): Whoever, without satisfactory excuse, wilfully trespasses in or upon any dwelling-house or premises, or upon any land attached thereto, … or upon any land belonging to the Government of Malaysia or of any State or appropriated to any public purpose, … When choosing a destination for your ghost hunt, always remember that ‘abandoned’ doesn’t always mean ‘haunted’ – and ‘abandoned’ doesn’t always mean ‘can enter’ either. Trespassing on houses, their grounds, or any government-owned land – no matter how spooky or abandoned and unkempt it appears to be – is an offence against Section 22 of the Minor Offences Act 1955 in Malaysia. This translates to say that you should aways verify the ownership of a place which you would like to investigate, and better still, avoid going to places that you suspect might be owned (or get caught by) someone else. The only time the law allows for such a trespass is when a “satisfactory excuse” is present, though we really can’t tell you for sure if hunting for supernatural entities falls under that umbrella. WHAT CAN IT COST ME? A maximum fine of RM50.00. Step 5: Refrain from making excessive noise WHY NOT? Section 13(1)(c) of the Minor Offences Act 1955 – Excessive noise (In part): (c) … any other instrument whatsoever for the production of noise or music in such a manner as to cause annoyance or inconvenience to occupants of any premises in the vicinity, … We all know by now that anything involving supernatural elements usually involves a great deal of screaming and banging or (if you live in the world of Scooby Doo) slamming doors and hiding in trashcans. After all, if seeing ghosts in just horror movies alone makes us scream ourselves till our throats are sore, imagine how much more compounded the noise you produce would be if you see a ghost float right past you while on your adventure. If all this noise is produced while you are hunting in a village, a town, a piece of public property or on a public road in Malaysia between 12.00AM and 6.00AM however, and if someone gets annoyed enough to call the cops, you could be asking for more trouble that you bargained for – as Section 13(1)(c) of the Minor Offences Act 1955 elaborates. WHAT CAN IT COST ME? A maximum fine of RM100.00. There are scarier things than ghosts Of course, this isn’t a complete list of laws you may end up violating in your ghost-hunting venture since there’s a chance the authorities might charge you under a different law depending on what you actually did. But laws and possible demonic possession aside, we should also caution that many abandoned sites can be safety hazards – a part of the structure might collapse, you might step on discarded needles, or run into a secret drug operation that would have been successful if it wasn’t for you pesky kids. Either way, if you do plan on going regardless, do inform someone else (who’s not going) so that help can be summoned if you don’t return……... (Cue ominous music)"
"If someone parks in front of your house in Malaysia, what can you do? It has been a long day at work. You are driving home at a quarter to midnight but you perk up a little as you turn into the road that your house is on. Slowing down, you mutter curses under your breath as you carefully navigate the street that is clogged with cars parked haphazardly on the shoulders. As always, you wonder why these guys can’t just park in their house compounds or in proper parking spaces like any civic conscious person would. Finally, your house looms ahead and you sit a little straighter...why is there a car parked in front of your house? You inch your car up and realise that the car is unoccupied and the owner didn’t leave a number on the dash. The worst thing is not being able to park your car in your compound but now, you have to find alternative parking for your car, hike back to your house and try to open your gate without damaging that stranger’s car. You unleash a scream that wakes the neighbours’ dogs and vow to find a solution to these parking issues. If you have ever been in the situation that is described above or even if you couldn’t access a road because a car was blocking your way, you would definitely be wondering what can you do in such situations (we mean legal solutions, of course)? First things first, is it an offence to park in that way? Yes, it most definitely is. The law that we will be looking at today is the Road Transport Act 1987 (RTA 1987). Under section 48(1) of the RTA 1987, any driver that parks in a way that can cause an inconvenience or obstruct other users of the road is liable for an offence and can be punished with a fine of at least RM1,000 and/or at least 1 year in jail. Section 48(1) RTA 1987: “If any driver of a motor vehicle causes or permits such motor vehicle to remain at rest on any road in such a position or in such a condition or in such circumstances as to be likely to cause danger, obstruction or undue inconvenience to other users of the road or to traffic, he shall be guilty of an offence and shall on conviction be liable to a fine of not less than one thousand ringgit and not more than five thousand ringgit or to imprisonment for a term of not less than one year or to both.” So, if you are ever caught in that situation where cars litter the streets of your housing area or if you have ever been in the unfortunate situation where you have been blocked out of your own house by a random car, the force is with you. [READ MORE: Are you in the wrong if you hit a double parked car in Malaysia?] The question then becomes how can you get the pesky car(s) out of the way? The officers can actually tow the cars away Section 48(2) of the RTA 1987 allows police officers or road transport officers (we are guessing this is where JPJ comes in) or any appropriate authority (probably your local councils) to clamp the car that is parked in an obstructive manner or even tow it away to another location entirely. Section 48(2) states: “...may clamp the wheel of the motor vehicle or remove or cause to be removed the motor vehicle to any other road or some other location or place as may be stated in a notice and remain there at the risk of the owner.” This means that a way for you to resolve your problem is by giving the police/JPJ/local authority a call for them to come and remove the illegally parked cars. A netizen called Pepper Lim who blogs here actually had to deal with his neighbour parking right in front of his house every day for 10 months. What this guy then did was to call MBPJ and lodge a complain with them. MBPJ then sent over their officer to issue a summons for the illegally parked car. This sounds great, right? Because most of us would avoid parking in such a manner after getting our wallets burnt once. However, this guy did not stop and after multiple summons by MBPJ, the total amount went up to RM1,000. The MBPJ officers then advised Pepper to lodge a police report. Now, while the police did not tow away the car, a visit from the cops was all it took for the misbehaving parker to stop parking in such a terrible manner. However, it is understandable that most of us would not want to go through the hassle of calling the cops or even risk straining neighbourly relations. With that being said, here are a list of avenues that you can attempt before calling the cops over: Try talking to the owner of the car If he is not being responsive/reasonable, you can call your local council to weigh in on the issue If all the above fails, you can always file a police report against the errant driver based off section 48 of the RTA 1987 Many of you might be tempted to lash in other more, uh, aggressive manners such as scratching his car or smashing his windows. But since it would be considered criminal damage for you to act in that manner, we would realllyyyyy recommend that you take the high road in cases like these. Speaking of high roads, what happens if the car is actually parked on your driveway, out of public roads? You can still make a police report Someone who deliberately drives onto your property and leaves his car parked there may fall under the Minor Offences Act 1955 (“MOA 1955”) or the Penal Code for trespass. You can still lodge a police report since it involves your private property but whether or not any action would be taken would depend on the police’s discretion (and possibly the severity of the trespass). Under the MOA 1955, if someone, without a satisfactory excuse, wilfully trespasses into your house, they are guilty under section 22 and can be fined up to RM50. Section 22 MOA 1955: “Whoever, without satisfactory excuse, wilfully trespasses in or upon any dwelling-house or premises, or upon any land attached thereto, or upon any boat or vessel...not thereby in any of the above cases causing any actual damage, or not causing, in the opinion of the Magistrate, more than nominal damage, shall be liable to a fine not exceeding fifty ringgit.” We know that fifty bucks is not a lot of money in today’s times but the force of a police report (and the abang polis showing up) would definitely be enough to deter the most hard core terrible parkers out there. At the end of the day, all the points above mean that… You don’t have to resort to illegal means We know that many Malaysians joke (or not) about scratching a lousily parked car or even smashing their windscreen. However, doing those things can actually get you in trouble because despite how good it feels to live by the saying, “an eye for an eye”, why get yourself in trouble when your problems can be easily solved by placing a phone call to your local council?"
"7 things people do at mamak shops you didn’t know were illegal Going to coffee shops is such a big part of Malaysian food culture that it might as well be called a national pastime. Whether it’s mamak shops, hawker centres, or food courts, there’s a place Malaysians like to go and relax with friends over drinks and chit chat. If that sounds like an innocent activity that shouldn’t get you in trouble with the law, you might want to think again. Some things that people do all the time in the mamak are actually illegal. Not many people get into real trouble with these laws though, unless something really goes out of hand. Usually these people stand out a lot. You know, the ones with behaviour that might make you stop and look at them dirty for a few seconds… In any case, here are some laws that you might want to know if you run into the rare but troublesome people at coffee shops. 1. Making a lot of noise Law: Section 268 of the Penal Code: “A person is guilty of a public nuisance… which causes any common injury, danger, or annoyance to the public, or… cause injury, obstruction, danger, or annoyance to persons who may have occasion to use any public right.” Penalty: General penalty under Section 290 - RM 400 The shop is crowded as usual, and noisy. Very noisy But even above all the noise there’s this one fellow who is out of it. He’s so loud he’s almost shouting insulting remarks about the abang mamak because he wasn’t given attention immediately. You’re a frequent reader of AskLegal, so you know that insulting others can get you in trouble with various laws. But there’s something else he’s got coming for him as well: being a nuisance. This will usually only apply in extreme cases, but if you have someone causing injuries, danger, or annoyance to others, at least you know you can get the police to help you. 2. Playing music loudly Law: Section 13(1)(c) of the Minor Offences Act 1955: “operates… any gramophone or wireless loud speaker or any other instrument whatsoever for the production of noise or music in such a manner as to cause annoyance or inconvenience to occupants of any premises in the vicinity,” Penalty: RM100 There’s more to making excessive noise than just obnoxious shouting. Have you ever had this guy play his music loudly in public instead of listening on his earphones? Well, this is the law you could use to stop him. Since it’s a minor offence, the offender gets slapped with a RM100 fine. But pity our ears, right? 3. Littering Law: Section 47 of the Street, Drainage and Building Act 1974: The law on this is very lengthy and covers a lot of situations, but basically it makes it illegal to litter or dump waste material improperly. Penalty: RM500 (RM1000 for repeat offences) A big issue in many places in Malaysia. And especially rampant around food outlets. Many Malaysians understand littering to be a moral wrong, but did you know that it is an actual crime in our country? Offenders can be arrested by the police without a warrant. But it’s not that easy for the police to enforce this law without the manpower to patrol every street looking for litterbugs, which is why some people think it’s more of an awareness and attitude problem than one of legal enforcement. If you grew up being taught that people litter because there are not enough rubbish bins though, consider the case of Japan, where you may need to walk for kilometres without a bin in sight, but the streets are nearly spotless. This writer experienced that it’s normal for people there to carry their trash in their pockets the entire day! 4. Double Parking Law: Section 48 of the Road Transport Act 1987: “If any driver of a motor vehicle causes or permits such motor vehicle to remain at rest on any road in such a position or in such a condition or in such circumstances as to be likely to cause danger, obstruction or undue inconvenience to other users of the road or to traffic, he shall be guilty of an offence” Penalty: RM1000-RM5000 or at least 1 year in prison, or both Yep, it’s not just inconsiderate to double park, it could also be a crime to do so. The law for this says that it’s a crime to park a vehicle in such a way that causes danger, obstruction, or inconvenience to other road users. The local authorities are probably being very nice to double parkers when they come in their truck and ask double parkers to move their cars (they still have to make sure you’re not blocking traffic). According to Section 48(2), the authorities have the right to clamp or even move your car if it’s blocking other road users. 5. Setting up shop in parking lots Law: 1. Section 9(10) of the Street, Drainage and Building Act 1974 (SDB): “No person shall erect or maintain or permit to be erected or maintained any obstruction in any street, and the local authority may, where any such obstruction exists, take down and remove the same and cost and expenses of so doing may be recovered from the person who erects, maintains or permits the erection or maintenance of such obstruction and shall be recoverable in the manner hereinafter provided.” 2. Section 46 of the Street, Drainage and Building Act 1974: (1) Any person who— (a) builds, erects, sets up or maintains or permits to be built, erected or set up or maintained any wall, fence, rail, post or any accumulation of any substance, or other obstruction, in any public place; Penalty: 1. Section 9(10): General Penalty - up to RM2000 fine + cost to remove the obstructions 2. Section 46: RM 500 (RM1000 for repeat offences) This law applies to the shops themselves rather than their customers. Some food spots practice putting out extra tables and chairs for customers out on the roads. A lot of people like dining out in the open; feeling the cool air, enjoying the beautiful starry sky dull cloudy sky… But it’s at the cost of traffic congestion and customer safety. Thing is, there’s actually a law that allows the local council to confiscate the tables and chairs, as well as slap fines on the business. You might not get into trouble for being a customer, but you might have to prepare for the local council taking away your tables and chairs... The Subang Jaya Municipal Council deputy president, Abdullah Marjunid has commented before that the council issues a compound of RM250 to offending restaurants, which is different from the fine amounts in the SDB. The fine probably differs depending on the local council, but if you have more information, please let us know. 6. Spitting Law: Section 15(1)(d) of the Minor Offences Act 1955 “Any person who… spits in any coffee shop, eating house, school premises or public place or in any trolley-bus, omnibus, railway carriage or other public conveyance or in or near any public road… shall be liable to a fine” Penalty: RM100 After that mouthful of confusing law, you might feel like spitting it all out. But unless you’re the type that spits all over the place, you’re safe from this next law. It happens way too often and they sometimes spit way too close to you, so here’s the law that makes public spitting illegal. It’s illegal to spit in any public place, public transportation, or near public roads. This law also explains that it is okay to spit into sinks or drains. 7. Being drunk in public Law: Section 21 of the Minor Offences Act 1955 “Any person who is found drunk and incapable of taking care of himself, or is guilty of any riotous, disorderly or indecent behaviour… in any public place… shall be liable…” Penalty: RM25 or imprisonment for up to 14 days (RM 100 or imprisonment for up to 3 months, or both for repeat offences) If you like to frequent coffee shops that serve alcohol, you might want to know that simply being drunk in public could be illegal. To be clear, it’s okay to stay on the premises if you’re drunk, but don’t go out wandering on the streets - get a friend to take you home. If you’re found in a public place drunk or misbehaving, you could get scooped up under this law. It’s not a big fine, but the jail time is probably not worth risking. Enjoying yourself shouldn’t come with causing problems for others So those were a few “perfectly normal” things at coffee shops that you didn’t know were illegal. Most Malaysians will not run into problems with these laws at all because as you can see, they only cover situations where others are given trouble and problems to deal with. We’re pretty sure that Malaysians don’t want others ruining our own relax time. But hey, the next time someone causes these kinds of trouble, you know who to call..."
"A Singaporean case changed Malaysia's law on murder... But how? If you’ve ever read true crime stories or watched a movie where someone gets murdered, you’d know the first thing every killer tries to do is to get rid of the body. This is based off the mistaken belief that no body = no evidence = innocence, and some killers actually go through great lengths to completely destroy their victims’ bodies, such as “Acid Bath Murderer” John George Haigh, who dissolved his victims in acid-filled drums. However, this isn’t true because you CAN get convicted of murder even if a body cannot be found - and it’s no different in Malaysia. The basis for this actually came from a 1963 murder that happened in...Singapore. So let’s shed some light into the world of Sunny Ang and what happened in the dark waters off Sentosa Island more than 50 years ago. When Sunny met Jenny He was your dashing young man, a little bit of a rascal, given his flamboyant character. A great scuba diver (readers, hang on to this little nugget of information) and a novice race car driver. While prospective in-laws may think that this man named Sunny Ang would be a great catch, others may reel away from his unsuccessful career. Sunny Ang was your failed pilot, failed teacher, and failed law student (this writer is spiralling down the same path). He was also declared a bankrupt after failing to pay up a judgment debt. Things are not looking great for Sunny Ang despite his classic good looks. This is where Jenny Cheok Cheng Kid enters the stage. In 1963 after Sunny Ang had failed in three different professions on top of having killed someone through negligent driving and was in trouble for attempted burglary, he met Jenny Cheok. She was a single mother of two who was separated from her husband and only had a Standard 3 education. She was working as a waitress/barmaid in Odeon Bar and Restaurant. She was poorly educated and struggling in life while he was educated, seemingly worldly in his experiences and exotic hobbies. Maybe we have been watching too many romance movies but it might not be very far to say that he charmed her off her feet in 1963. But there was no fairytale ending for Jenny So, Jenny and Sunny started their romance. Perhaps they frolicked down the streets of Singapore together, discovering the hidden alleyways and enjoying some ice cream together. Maybe they even went for a sunset stroll down the beaches of Sentosa, caught sight of a dolphin or two and gushed together. We don’t know if they did any of that, but what we DO know is that in August 1963, Sunny took his girlfriend out for a romantic scuba diving trip which Jenny never returned from. You are probably thinking that Sunny Ang would be going out of his mind looking for her. Going to the police, gathering neighbours and friends to canvass Singapore for her. Putting up posters of her and hiring private detectives to do some sleuthing. Exhausting every avenue he could possibly think of. But according to a key eyewitness, Sunny Ang did nothing. He did not even panic. Basically, he did not act in a way that one would normally act upon realising that the person they were going to marry has vanished into thin air. With this, in April 1965, Sunny Ang’s trial for the murder of his girlfriend begin...without a body. Now that we have your undivided attention, let’s sink our teeth into how Sunny was charged by the police even though Jenny disappeared. To do this, we need to take a few steps back. It all started with a nice day out at sea Remember when we told you to hang out to the little nugget of information that Sunny was an experienced scuba diver? Well, that was how he orchestrated the disappearance and, quite possibly, murder of Jenny. We won’t go into the minute details of how Sunny orchestrated Jenny’s disappearance but in a nutshell, this was what happened: Sunny and Jenny rented a boat from Yusuf Ahmad, a boatman who will become a key witness in the trial. They then headed over to Pulau Dua, an island that apparently is not suited for novice divers like Jenny due to its strong currents. After dropping anchor, Jenny dived first while Sunny waited in the boat. An interesting point to note here is that Yusuf said that he was hired by Sunny two months before this to bring Jenny and him to another island. At that island, Yusuf remarked that Jenny did not strike him as a strong swimmer. Sunny then started checking his own tank and he realised that it was leaking. He claimed that the problem lied with the washer of the tank and Yusuf tried to help him improvise a washer. However, this attempt failed. At this time, Sunny tugged on the rope that Jenny used to guide her dive and asked Yusuf where she was. They tried searching around the boat for air bubbles but failed so they headed over to St. John’s Island in order to call the police. On the way to St. John’s Island, Yusuf remarked that Sunny did not act as a worried boyfriend would. He did not ask Yusuf to speed up nor was he panicked. In fact, he calmly changed out of his swimming trunks and into his street clothes. Five other fishermen who followed them back to the spot where Jenny dived and they dove down to look for her. Sunny remained in the boat. Jenny had disappeared without a trace despite the efforts of the five fishermen and Royal Navy frogmen who joined the search later on. Now, at this point you might be thinking that it is insane to charge someone for murder just because he wasn’t acting worried enough. But here’s the thing - the prosecution built a case against Sunny Ang that was filled with so many relevant facts that, when it was looked together as a whole, it convinced the jury enough to find Sunny guilty of murder. He was hanged on the 6th of February 1967 after two hours of deliberation by the jury. “This is an unusual case insofar as Singapore, or for that matter Malaysia, is concerned. This is the first case of its kind to be tried in our courts that there is no body.” – Prosecutor Francis Seow, with The Straits Times, Singapore So Sunny Ang was convicted and hanged despite the lack of a body, and any other kind of direct evidence. So what evidence was so compelling to convince the jury? Sunny Ang left behind a longgggg trail of indirect evidence At the time of her disappearance, Jenny had about $400,000 worth of accident coverage taken out for her by her boyfriend. The odd thing about this is why would a simple waitress, who earned about $90 a month, have that much coverage? So maybe Sunny could be seen as an overprotective, if not, slightly paranoid boyfriend by taking out such a large insurance coverage on Jenny; but Sunny approached the insurance company the day after Jenny disappeared and proceeded to file a claim for her insurance. Aside from that, just two weeks before her disappearance, Sunny accompanied Jenny to draw up her will that named Sunny’s mother as her sole beneficiary. If you are still unconvinced, one of the policies amounting to $150,000 lapsed a day before the dive and Sunny renewed it for only five days. This means that if Jenny had died after the five days, there would be no insurance to claim from. Aside from the irregular insurance purchases and beneficiaries, another nail in Sunny’s proverbial coffin was the discovery of one of Jenny’s flippers. She disappeared on the 27th of August and the flipper was found on the 3rd of September, not far from where she disappeared. The funny thing is, the heel strap of the flipper was cleanly severed. Two expert witnesses testified that the flipper was severed by 2 clean cuts, which could have only been done by a sharp instrument such as a knife and not by jagged corals (because the cuts wouldn’t be clean then). The witnesses also mentioned that a novice diver such as Jenny would have panicked in such a situation due to the impairment in her mobility and inadvertently, she would have drowned. Another strange thing is that there was speculation that there may have been another attempt on Jenny’s life before this diving incident. Sunny had borrowed a friend’s car to make a trip down to good ole’ KL. Before making the return trip, he had purchased accident policies; $30,000 for himself and $100,000 for Jenny. Seems like a lot of money to blow on a simple trip from KL-Singapore, right? Well, the car crashed on the way back. Sunny, who was a skilled driver (novice race car driver, remember?), claimed that he crashed the car trying to avoid a dog. The worst damage was on the passenger side, where Jenny was. However, she managed to escape with just bruises. This was how Sunny was convicted without Jenny’s body ever being found. Through a series of relevant facts. But what exactly is a relevant fact and why is a body so important in a murder case? Let’s stroll into the law of evidence for this discussion. Real evidence is much more complicated than TV shows This is where we look at section 5 of the Evidence Act 1950: “Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.” The language of the Act is very twisty but what it basically says is that there are two kinds of evidences that can be admitted to court. The first is called a fact in issue and the second is called a relevant fact. Evidence law is very very very technical but in essence, facts in issue are evidences that directly show the judge that the crime was committed by the accused. The judge does not have to infer or presume anything from a fact in issue. A relevant fact, on the other hand, is the evidence that does not directly show the judge that the crime was committed by the accused. Relevant facts can help prove the facts in issue for a case. To make it easier for you guys to understand, here is an example illustrating how facts in issues and relevant facts work. A drives to meet B in Banting. B then murders A using a knife and burns the body. Without B realising it, C has witnessed the entire crime. In the scenario above, there are two crucial bits of evidence. The first is the testimony of C, the witness and the second is the knife. C’s testimony would the fact in issue. Because it directly tells the judge what happened. The knife with B’s fingerprints would be a relevant fact. Because while it tells the judge that B held the knife, it does not tell the judge that B used it to kill A. The judge has to infer that based off B’s fingerprints. If the facts of the scenario above strike a chord in your memory, it is because it mirrors what happened in the Sosilawati murder in Malaysia. Why are we bringing up the Sosilawati murder? Because that is how Sunny Ang affected us We won’t go into much detail for Sosilawati’s murder and you can read about it here but Sosilawati’s murder has been described as the first of its kind since Sunny Ang’s brazen act. In other words, it is the first murder without a body that the court has to deal with since Jenny’s disappearance. To go over the case briefly, Datuk Sosilawati and her three companions were murdered by her lawyer, N. Pathmanabhan. He then burnt the bodies completely in order to avoid detection. He was charged and convicted for their murders through purely circumstantial evidence. So, this means that a murder that happened in Singapore in 1963 has managed to traverse time and distance and...landed itself in Kuala Lumpur in March 2017 when the Federal Court upheld the murder conviction for N. Pathmanabhan and two others. This is how a case from a long time ago and from another country could affect our laws and judicial decisions. As a matter of fact, a multitude of our laws still share many similarities with the UK and other Commonwealth countries. Judges in Malaysia can also choose to look at decisions from the UK as persuasive precedents when deciding cases in Malaysia. Above all, it would appear that tons of mistaken beliefs about the law exist out there. If you have read previous AskLegal articles, you would have noticed that we sometimes reference old English cases. This isn’t meant to show off our awesome English history skills, but rather, it’s because these old cases are still used as the basis for Malaysian court judgments today."
"Do local councils have the power to put down dogs in Malaysia? Note: This article was first published in October 2017. Everyone loves dogs. Any of us with a pet dog can attest that they are godsent creatures that are at times too good for us. It’s so much so that we consider them as members of our family. In fact, there are some studies that have shown positive effects associated with having dogs as your companions. Having said that, many netizens expressed their anger over the recent Miri incident involving the local council and a dog that was famous for tapau-ing food. All of us are probably wondering: did the council workers have power to put down the dog? Do note that while the Animal Welfare Act 2015 brought about much improvement for the quality of life of animals, the provisions are related to animal owners or people who abuse animals, not the powers of your local council/council workers in putting down certain dogs. Yes, your local council does have the power to put down certain animals The Animals Act 1953 (Amended in 2006) provides for some animal control scenarios like importation and exportation of animals, diseased animals, et cetera. If we look under section 38(6), it says that: The owner of every licensed dog shall provide a collar to which the badge issued in accordance with subsection (5) shall be securely fastened in such a manner as to be clearly visible when worn, and such collar and badge shall be continually worn by such licensed dog when out-of-doors, and any dog found out-of-doors and not wearing such collar and badge may be destroyed. The provision makes it pretty clear that dogs that don’t have their collar with the license attached can be put down if found roaming outdoors. The collar must also be clearly visible on the dog. In fact, with proper documentation, any person may enter any place that is not a dwelling house to put down dogs that are specified in section 38(6): The proper authority may authorize in writing persons to destroy dogs in accordance with subsection (6) and such persons may enter upon and into any place, not being a dwelling house, for the purpose of enforcing that subsection: Provided that such person shall, if so required, produce and show his written authority to the owner, occupier or person for the time being in charge of such place All they need to do is show said documentation to the owner/occupier/person in charge of the place with dogs that are without collars with the license. What can I do to prevent this from happening? A few simple steps will help to make sure that your dog stays safe! Due to different requirements in different locales, and to keep the article to a manageable length, the next part only applies to the council responsible for the Ampang Jaya area (MPAJ). For example, in Penang, you can actually do it online via the MBPP website. You need 2 ID sized photographs of yourself 1 full-body photograph of your dog (postcard size) 1 copy of your identification card (front/back) Of course, there are fees invoved. New/renewal license per dog per year: RM 15 Replacing a license for that year: RM 10 Exchange: RM 5 per dog Owner’s card: RM 2 The number of dogs you can have at any time on a property of specific sizes are also specified: Less than 1000 square meter: Maximum of 2 dogs More than 1000 square meters: Maximum of 4 dogs Dogs kept at higher than ground floor (in apartments or condominiums) cannot be issued with licenses Restricted Breeds In Kuala Lumpur, some breeds of dogs are listed as ‘controlled’ by the DBKL: Rottweiler Doberman German Shepherd/Alsatian Bull Mastiff Bull Terrier Perro de Presa Canario (Canary Dog) Owners of these breeds of dogs have to have passed dog handling classes and said dog has to have gone through behavioral courses organized by various organizations. They also have to be constantly under adequate supervision, and shouldn’t be let wandering outdoors without someone walking it. Some breeds of dogs are straight up not allowed to be kept, like American Bulldogs and Akita Inus. So my dog(s) is unlicensed, what should I do right now? The best thing you can do for yourself and your dog is to find out how to get a license for it right now. Find out how to get one from the nearest branch of your local council. For some places, it can be as simple as just filling up a form online, for others require you to fill up physical forms and bring some documents to the council’s office. Either way, it’s not difficult and it’s inexpensive, and it saves a whole lot of heartbreak for everyone involved."
"This Malaysian scam is scary... because you get called by the ""PDRM"" or ""Bank Negara"" Good news! There's a Nigerian Prince who needs your help to transfer $5 million out of the country, and he will pay you $1 million if you help him! While most of us can laugh when we see this in our inboxes (assuming it doesn't go straight to spam) thanks to warnings being posted on the internet, scams that attempt to get you to transfer money or part with your confidential information like banking passwords are still rampant - with people still falling for variations of the Nigerian Prince scam today. However, Davina wasn't laughing when she received a call, supposedly from a local bank, which led to a two-and-a-half hour conversation with ""police investigators"" accusing her of being an accomplice in drug dealing activities. More recently, an accountant lost RM510,000 to scammers claiming to be Bank Negara officers. It’s very important to note that a core part of this scam involves getting victims to transfer money to them. If you ever get such a call, hang up and check with the relevant authorities or bank via their hotline number and NOT the one provided to you by the scammers. This is the ""Macau Scam"", and they've conned Malaysians of RM2.7 million The Macau scam isn't new, with news of arrests going back to 2014. It would also not be a far stretch to assume that the scam is still ongoing despite the recent bust on July 4th. It's important to note that scams are constantly evolving, and what's currently known as the Macau Scam bears some resemblance to IRS Scams in the US, where people impersonating Internal Revenue Service (tax) collection agents call up unsuspecting victims to inform them that they've either committed tax fraud or have unpaid taxes. The scammers often go through great lengths to appear convincing, which in Davina's case extended to the point of spoofing the number of the Penang Police Headquarters and having a senior ""Inspector"" around for the specific purpose of scolding her for not understanding Bahasa. You can - and should - read the full account at the end of this article, reproduced with Davina's permission. Here's a summary of what happened: Davina receives a call from a debt collector from Hong Leong Bank in Penang, informing her that the bank will be taking legal action against her for not repaying a RM50,000 loan. Davina says she doesn't have such an account and the debt collector connects her to the police station in Penang to file a report. She speaks to a Sergeant who informs her the call will be recorded, and asks her to verify that the phone number is from the Penang Police Headquarters. The Sergeant says that her name is associated in a drug bust, where over RM250,000 in drug money is untraced. Based on evidence and testimony from the arrested dealer, the police believe that she sold her IC and bank account details to drug dealers. She's asked to reveal her current account balances (but NOT her passwords, because police don't have the right to ask for those details), and any money that wasn't declared can be used against her in court. The sergeant also warned her against discussing the case with others, as it might jeopardize the investigation. The Sergeant that forwards Davina to his superior to explain her side of the story, but he scolds her for not understanding Bahasa before hanging up. The Sergeant then calls back and tells her that he believes she isn't involved and would like to allow her to help in the investigation. He gives her two choices - either cooperate with him without telling anyone, or be detained for interrogation at the Penang Police HQ for 45 days. He also reminds her that the punishment for drug dealing is death. Of course, Davina chooses to cooperate. He says that because the bank will be suing her in an hour, she needed to quickly transfer all her money, from all her bank accounts, to the Magistrate's Court account for auditing. Of course, he will stay on the phone to guide her through the process. It's at this point Davina realizes that something fishy was going on and ends the call. As these cons usually rely on exploiting human weaknesses like fear, greed, or ignorance to work; there may be common elements or factual errors that can serve as warning signs. We'll be looking at 5 of these elements that may save you a whole lot of heartache the next time you get a call from the ""authorities"". On the legal end of things, we consulted with lawyer Fahri Azzat, who commented: ""Wow. What a scam! I'm impressed as much as I am appalled."" 1. The authorities will never conduct an investigation over the phone Whether from the PDRM, Bank Negara, or LHDN, the authorities will not conduct an entire investigation over the phone, much less ask you to transfer ""evidence"" to them. Fahri explains that while there's probably no law or procedure prohibiting the police from questioning you over the phone, it doesn't make sense for them to do so when they can use Section 111 of the Criminal Procedure Code to get you to show up at the police station for a statement. ""I have NEVER heard of questioning/investigating by phone by the police. They won't do it because they have to take down the statement in writing, print out the statement, have you read it, and sign it. It does not make procedural or logistic sense to make such a phone call"" - Fahri Azzat, in email reply to ASKLEGAL However, scammers will try to establish a sense of legitimacy to prove that they are whoever they say they are. In Davina's case, this was done by the Sergeant asking her to not reveal banking passwords (which is actually correct), and asking her to Google the phone number to show he was calling from the police headquarters: ""He said check the number now on Google, to make sure we're calling trom Ibu Pejabat Kontingen. I should have had bells ringing at the time, but I didn't."" - Davina, when contacted by ASKLEGAL We should note that this doesn't mean the police were involved in the scam; the call was actually achieved using call spoofing, and it's been previously used in other scams involving calls from banks. Banks such as RHB have previously posted warnings about receiving calls from spoofed numbers. 2. Watch out for the Good Cop - Bad Cop setup Good Cop - Bad Cop is an actual psychological technique used in various settings, from police interrogation to business negotiation; where the Bad Cop would break down the victim while the Good Cop is understanding and sympathetic towards the victim, establishing trust. The Good Cop then uses this trust to get what they need from the victim. It should be noted that Good Cop - Bad Cop doesn't only involve scammers masquerading as the police. For example, one variation of the IRS scam targeting US immigrants would have the collection agent's manager insulting and threatening the victim with deportation before handing the phone back to the collection agent, who will promise to sort it out once the payment is made. It's by coincidence that Davina's case involved literal cops: I was forwarded on to explain my case to the Sergeant’s superior, an Inspector, who responded rudely to me for not being able to speak in Bahasa, and hung up. The Sergeant then called the Inspector back, with me still on the other line, to explain that he believed that I was not an accomplice and would like to allow me to help with the investigation. 3. If there's a time limit, it's time to end the call The scarcity principle is a technique commonly used in marketing, but is unfortunately also equally as effective in scams. You may have come across this as ""limited time offers"" - a once in a lifetime opportunity that will never be available again once the period expires. This is effective on two fronts... that when something is limited, we tend to attach greater value to it - making us want it more. The second is that the short time frame doesn't give us the opportunity to sit down and logically think things through. In essence, it makes us more reliant on emotions rather than logical judgment, which usually doesn't bode well. Hitman scam is a thing. Image from Zeltser.com We see this used across all manner of scams, whether it's the Nigerian Prince who needs to get the money out before the government changes, or Scotsman Gregor MacGregor's ""Poyais Scam"" in 1822, where MacGregor used the scarcity principle (along with other techniques) to not only only convince investors to part with their money, but also for 250 of his countrymen to set sail and colonize the rich island nation of Poyais before other countries did. Unfortunately, Poyais never existed, and 2/3 of the ""settlers"" died in the process. In Davina's case, the scarcity principle was applied in the form of criminal charges and legal action from the bank: ""I picked up and a ‘Debt Collector’ says that I’m late in re-paying a RM50,000 loan I applied for, at a Hong Leong Bank in Penang, and charges will be made if I don’t pay up in 2 hours. ... ...the sergeant told me the next step. Because the bank was to sue me in an hour, I needed to act fast."" 4. They'll usually try to get you to keep it a secret For the obvious reason of preventing an outsider from foiling their plans, scammers would usually try to find a way to prevent you from discussing the situation with others. While methods would include asking you to stay on the phone, or telling you (in the case of investment/money transfer scams) that discussing the matter might jeopardize the entire deal. I was also told not to speak to anyone about this case, for there were many suspects still not caught, and there was a chance that one of them might be in my social circles. In instances where the person calling you claims to be from a certain bank or government authority, it's best to tell them that you will call the relevant agency yourself while ignoring any numbers they might ask you to call. And no, you can't get in trouble for doing this. 5. They take advantage of your lack of knowledge A very popular scam currently happening across the globe is the Microsoft Tech Support Scam, where scammers impersonating Microsoft tech support personnel would call and inform victims that there was a problem with their computer and convince them to grant remote access to their computer. Once this is done, scammers can install spyware/and or steal personal information - some even charging for the ""service""! Microsoft has stated that most victims who fall for the scam are those who are unfamiliar with technology. Scammers would usually assume a role of authority (which in the case of the Macau Scam is the police) in order to make victims more compliant, especially if the victims aren't equipped with the necessary knowledge to believe otherwise. While we've already covered police procedure in the first point, it's also worth noting that, even if true, Davina would not have been facing the death penalty for her involvement: Assuming if it was true, she could be charged for selling her ID. [For the drug charge] I don't know what 'evidence' they would have to link her... the police would have a lot of things to prove."" - Fahri Azzat In such a situation, having at least a base knowledge of the law and your rights may allow you to spot the scam early on, and to call the scammer's bluff: ""A good response in such a scenario would be to say 'Send me a Section 111 notice, then I will come.' That will put them on alert that (1) You know enough criminal procedure and; (2) You may not be an easy target"" - Fahri Azzat Reading more Asklegal articles can perhaps be a good start. Here's our article on Malaysian drug laws. It's always an ""obvious con job""... until it happens to you You might laugh this off and say that you saw the con happening a mile away while reading this, but it's a very different situation when you're actually caught in the thick of it. While Davina eventually realized it was a scam before any damage was done (other than the loss of time and having to cancel appointments), others have fully complied and lost their savings as a result. As scams continue to evolve, there's no single tried-and-true method of keeping yourself safe - other than keeping your wits about you and being aware of your rights (and the law) when contacted by people claiming to be from enforcement agencies. Davina's story The call came in from a phone number starting with ‘00’. I picked up and a ‘Debt Collector’ says that I’m late in re-paying a RM50,000 loan I applied for, at a Hong Leong Bank in Penang, and charges will be made if I don’t pay up in 2 hours. I said I don’t have such an account and I’m based in KL. The lady then gave me the account details for reference, and helped to connect me to the police station in Penang to file a report. I spoke to a ‘Sergeant’, who took down basic details, then was told that his superior will call me back to record a report over the phone. The number that called was the legitimate number of the Penang Police Headquarters. I made a phone-recorded report with a new Sergeant which must be made in absolute privacy, and he double checked my details over a walkie talkie to check my background. The Sergeant then told me that my name is associated with a big drug heist that has just happened. The drug dealer was caught with 16kg of meth and has made over half a million ringgit from it, with half of it still not traced. In the dealer’s statement, he’s said that I’ve sold my IC and bank account details to him to earn some profit from the dealings. There was also a lot of evidence presented by the dealer to prove of me being a willing accomplice. The sergeant proceeded to blatantly accuse me of hiding something, to which I had to convince him that I was innocent. I was asked to officially state, over the phone for recording / report purposes, all of my current balances with all of my bank accounts, to declare as legal money. I dug out all the statements I had on me and listed them out. (The Sergeant told me not to reveal private details like passwords, as authorities like him don't have the right to ask that of civilians.) Whatever amount I didn’t declare appropriately would be used against me in court. I was also told not to speak to anyone about this case, for there were many suspects still not caught, and there was a chance that one of them might be in my social circles. I was forwarded on to explain my case to the Sergeant’s superior, an Inspector, who responded rudely to me for not being able to speak in Bahasa, and hung up. The Sergeant then called the Inspector back, with me still on the other line, to explain that he believed that I was not an accomplice and would like to allow me to help with the investigation. The Sergeant hung up and told me that his Inspector gave me two choices: either I cooperate with the investigations in complete confidentiality, or I get arrested under warrant and get detained for interrogations at police HQ in Penang for a minimum of 45 days. If I chose the former, then the Sergent’s job was to be on the line if I was proven guilty, and the punishment for drug dealing here in Malaysia, he reminded me, was death. I chose to cooperate, of course, and with complete trust in each other, the sergeant told me the next step. Because the bank was to sue me in an hour, I needed to act fast. The magistrate court would need to do an audit on all of my bank accounts, and therefore, I’d need to immediately head to each of my banks and transfer all of my legit earnings to the court account, with him staying with me on the line to guide me. At this point, I said, ‘Sergeant, I don’t believe you,’ hung up on the 2.5-HOUR phonecall, cried and screamed my lungs out, with my poor clueless husband consoling me, and went to the nearest police station to make a REAL report. The police staff informed me that a lot of similiar scams have been reported recently. Nevertheless, they were impressed at how intricate the setup was. I've called up Hong Leong Bank to report the case, and they are already investigating the issue. I spent the whole of yesterday in trauma from this event. I was angry that I cancelled important plans, and that I was so easily fooled. I was sad at how people would go to such lengths to create such incredible scams, when they could be spending all that time and effort to make REAL respectable lives for themselves. Most of all, I’m worried that someone as aware and intelligent as I could have fallen for such a trap, because that means that so many others may not be so lucky to stop themselves from sending out their life savings out and never seeing it again."
"Are Malaysian employers responsible for your safety in the workplace? Have you ever been injured at work? Maybe the chair you were sitting on gave way or maybe a piece of the ceiling fell on your head while you were busy making money for the company. Or maybe, you sustained even more serious injuries due to your employer’s failure to set up a safe working space for you. This is similar to what happened recently when a WW2 bomb exploded in an MRT construction site in Bandar Malaysia. Unfortunately, out of the three men that were injured there, two have passed away. If you think that is just a freak accident, you might want to think again because the Works Ministry is looking into whether there was a breach of standard operating procedure that led to this tragedy. Aside from the detonation of a WW2 bomb, Malaysians were also shocked by the death of a crane operator in Taman Desa last week after he was crushed to death on a construction site when the crane’s cables snapped and the boom and generator fell on him. With these tragedies, the top question is whether employers are legally obliged to provide a safe working space for their employees? Yes, companies have to ensure their workers’ safety and health According to section 16 of the Occupational Safety and Health Act 1994 (“OSHA 1994”), it is a duty of the employer (or a self-employed person) to prepare a safety and health policy. Aside from preparing such a policy, they must also update it as often as necessary. This means that if your company has a safety and health policy from 1990, it mightttt be time for them to look through it again. Section 16 OSHA 1994: “Except in such cases as may be prescribed, it shall be the duty of every employer and every self-employed person to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the safety and health at work of his employees and the organization and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all of his employees.” A point to note is that the OSHA 1994 only applies to the list of industries which are listed in the First Schedule of the Act. You can look at the full list on your own but the more common ones include manufacturing and construction to business services. A failure to have a safety and health policy would result in very steep fines on your employer. This is provided for under section 19 which states that: “A person who contravenes the provisions of section 15, 16, 17 or 18 shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both.” Aside from having a safety and health policy, the employer must also establish a safety and health committee at your working place if he has 40 or more employees at the same working place or if the Director General of Occupational Safety and Health directs your employer to set up such a committee. Section 30 OSHA 1994: “Every employer shall establish a safety and health committee at the place of work in accordance with this section if— (a) there are forty or more persons employed at the place of work; or (b) the Director General directs the establishment of such a committee at the place of work.” There are actually a bunch of functions that this committee is supposed to carry out but in order to keep this article short, we will not break it down and instead, turn the spotlight to the employees. Did you know that employees also have a part to play in workplace safety? But employees are also equally responsible Under section 24 of the OSHA 1994, employees have certain general duties that they would have to discharge as well. In a nutshell, they are as follows: To take reasonable care of your own health and safety at work This includes taking reasonable care of the health and safety of your colleagues that may be affected by your actions/omissions. It means that if your employer clearly told you to stay out of the third-floor corridor because a giant three headed dog resides there and you still decide to jaunt down the third-floor corridor, you can’t blame your employer for failing to provide a safe working environment. The need to look out for the safety of your colleagues extends to scenarios where you failed to mop up the water you spilt even though you know that the chances of someone slipping in that puddle is very high. So, when inadvertently, your colleague does slip in that puddle, you are actually committing an offence under OSHA. To cooperate with your employer Cooperation with your employer is basically not standing in his way whenever he tries to discharge the duties given to him by the law. For example, if it is an obligation on your employee to keep all fire exits clear and you decide to leave your bag in the way despite being told off many times, you would be guilty of an offence. A pretty good case to refer to would be the English case of ICI v Shatwell where two brothers were injured while testing some explosives because they were too far away from the protective shelter. The judge decided that the brothers could not claim against their employer because they had acted in express defiance of their employer’s instructions with full knowledge of the risks. To not be naked Well, obviously you are not going to go to work naked (unless its your thing, we don’t judge) but what the law is trying to say is that you should wear all protective and safety clothing/equipment that is provided by your employer. For example, if you are working in a construction area and refuse to wear the safety hat and vest that was provided by your employer, you cannot then turn around and blame your employer if you sustain a head injury from falling debris. As an employee, you have to comply with safety laws as well This duty basically states that even though you are an employee, you are not exempt from complying with the rules that your employer has set out to ensure your safety and wellbeing. This may also include any Malaysian law that was enacted to ensure that you return home in one piece every night. The best example would be failing to carry out your duties under this section. That would be the very definition of non-compliance. Any failure to carry out the duties mentioned above could result in you getting slapped with a maximum fine of RM1,000 or getting imprisoned for a maximum of 3 months. Aside from all the duties listed above, section 25 also sets out an additional offence wherein if you are ever caught interfering or misusing with anything that was provided for the purpose of safety, health, and welfare of you and your fellow employees, you can be slapped with a fine of RM20,000 or a jail term not exceeding 2 years. An example of this would be you tampering with the office fire extinguisher and rendering it useless. It is important to note that this section also applies even if you acted in a negligent or reckless manner. This means that you don’t have to intentionally damage the fire extinguisher; you are still committing an offence if you act in a reckless/negligent manner and it becomes damaged. This means that at the end of the day... It is not just up to your employer to ensure a safe place As that English saying goes, “It takes two hands to clap”. While the law might place a greater burden on your employer to fulfil when making sure that your workplace is safe, you, as an employee, should not be complacent as well. At the end of the day, the person who could best ensure your safety is yourself. So, guys, play safe and don’t forget to use protection."
" Is there freedom of speech in Malaysia if you can get arrested for Facebook posts? Every once in a while, we’ll come across a news report where someone gets arrested for comments or posts they had made on social media, such as the students being investigated by the police over posts on the MMU Confessions Facebook page, or the 3 people charged in court for insulting then-PM Najib online. In more recent news, four people were charged with insulting Islam online, with one of them being sentenced to 10 years and 10 months in prison; and the other for 7 months and a RM10,000 fine. At the time of updating this article, another man was also charged for insulting Hinduism online. This is where the argument of freedom of speech comes in, and most people are divided into two camps – those who don’t support such arrests because freedom of speech is a constitutional right, and those who support these arrests because people can’t run around (with their keyboards) saying anything that comes to mind. So where does the law lie in this regard? Actually, it’s somewhere in between. ASKLEGAL (along with our friends from CILISOS and SOSCILI) were invited to an interview with Mustaffa Fazil, the executive director of the Communications and Multimedia Content Forum of Malaysia (CMCF). The CMCF is a body set up under the Section 213(2) of the Communications and Multimedia Act 1998 (CMA) and membership comprises of industry players such as Internet Service Providers, advertisers, and content creators. You might normally associate the CMA with the Malaysian Communications and Multimedia Commission (MCMC), so it’s worthwhile to note that the CMCF is an independent body that works with the MCMC to regulate the content that Malaysians create and share across the internet. Mustaffa explained why it’s important for Malaysians to control what they write and share online, and also how to go about it. But first, let’s discuss something that commonly misunderstood…. “Freedom of speech” doesn’t mean “Freedom from consequences” If there’s one thing that can be established off-hand, it’s that freedom of speech is indeed a constitutional right under Article 10 of the Federal Constitution – with some limitations. Article 10 of the Federal Constitution – Freedom of speech, assembly and association (in part): 10. (1) Subject to Clauses (2), (3) and (4)— (a) every citizen has the right to freedom of speech and expression; Aside from the exception clauses in Article 10, it can also be said that this freedom doesn’t extend to immunity from legal, moral, and social repercussions. To quote a line associated with a famous web-user: As a quick example of how constitutional freedoms aren’t absolute, a person has the constitutional right to freely go anywhere they want under Article 9 of the Federal Constitution (Freedom of movement), but what would you do if a stranger entered your house saying it was his right under Article 9? You’d probably call the police. So in similar fashion, you have the freedom to write or share anything you’d want on the internet – but that also means that you are fully responsible for the repercussions that come from it. These repercussions come in two forms - criminal charges such as Section 499 of the Penal Code for Defamation, and/or civil suits whereby the target of your post sues you. And it’s not just the person who wrote the post or article (the originator) that’ll get in trouble, but the people who share it as well! For instance, if 500 people had shared a post that was proven to be false or defamatory, all 500 including the originator may find themselves facing the authorities and/or a lawsuit. While this is explored in greater detail in our article on the subject, they can best be summarized as sharing or making: Statements that are false or misleading Statements that are defamatory Statements that are threatening or harassing [READ MORE: Shaming someone on social media could land you in jail] So how can you exercise your freedom to share and voice your thoughts without getting into trouble? The CMCF’ recommendation is – Self regulation. This can be done through 2 simple steps: Step 1: Take a moment to think before writing or sharing something online One of the CMCF’s major functions is to come up with a Content Code (given legal weightage through the CMA) which provides guidelines, standards, and practices for industry players to follow – and much of this has roots in self-governance and self regulation. But although it’s aimed at industry players, Mustaffa says that it can apply to the regular Malaysian on the net as well. You can read the Code for yourself but, in a brief nutshell, a lot of it involves common sense and taking a moment to think about: Whether or not it’s true Why you’re doing it If what you’re posting can have a negative impact on someone else. Right off the bat, Mustaffa acknowledges that objectionable content is widely available on the internet: “[Objectionable] content is out there and it’s not going away anytime soon … We have these in Malaysia and we can’t close one eye and say ‘Oh no, Malaysian society is very sterile. We don’t do all this.’ “ – Mustaffa Fazil So while it’s pretty obvious why someone who created the content is responsible and can be punished, why would someone who shared it be equally responsible as well? The reason for this is that even though you didn’t directly contribute to creating the content, you have contributed by becoming a “postman” for it. In this sense, your intention (the reason you shared the post) comes into play, that whether it’s to make someone look bad or to get likes; there was a deliberate action on your part. And no, claiming you didn’t know about the law is not an accepted defence in court. “Whether you truly believe it’s something the public should know, or if it’s just to get likes; the responsibility of that intention is something that you have to bear” – Mustaffa Fazil The problem with anything being online is that nothing is ever truly private, even if it’s among trusted friends. As a student from Brickfields Asia College found out, a crude joke in a private Whatsapp chat group can snowball into public outrage and disciplinary action with just one screenshot. Step 2: Check the facts! “Most fake news are generated on social media. There is no fact-checking culture [in Malaysia].” – Mustaffa Fazil Whether it’s a Whatsapp message that the police are setting up roadblocks to check phones for political messages or Facebook posts with false police warnings of child kidnappers, most Malaysians are no stranger to dubious or outright false information online. And of course, spreading false information can land you into some real hot water as outlined in the points above. But what if you’re sharing it “just in case it’s true” or if you actually believed it was true? For much of the news being spread online, a quick Google search will reveal whether it’s true or not. For instance, a viral voice message on Whatsapp accusing the PDRM of setting up roadblocks to screen through people’s phones for political and religious messages that surfaced this year not only turned out to be false, but was an extension of a similar (fake) warning about 1MDB messages in 2015. You can also check out other sites dedicated to debunking fake news such as Snopes and Sebenarnya.my, a site set up by the MCMC to debunk or confirm news being spread in social media. But if you’d rather err on the side of caution, such as if it was news of a kidnapped child, Mustaffa says it’s a good idea to attach a disclaimer to your post, such as I don’t know for sure if this true, but I’m sharing it just in case… But this isn’t a get-out-of-trouble-free card; you’ll still need to defend your disclaimer or remove the post if the news turns out to be false, or at least follow up with the truth once it emerges. This is because false news can lead to unnecessary panic, such as a recent viral post about a child that was supposedly kidnapped in popular shopping mall 1 Utama. The incident prompted 1 Utama to respond as such: BONUS STEP: You can also help by lodging complaints! If you come across objectionable or questionable content online, you can easily lodge a report with the MCMC or the CMCF. Mustaffa clarifies that the CMCF will forward any complaints that are not in their jurisdiction to the MCMC for further action, and you’ll be updated on any action being taken. You can also make a police report for posts that are criminal in nature, such as defamation, threats, or terrorism. Complaints have to be made in writing, so it can be done via a complaint form (CMCF | MCMC), email, or even snail mail. While we didn’t have the space for it in this article, the CMCF has also initiated an awareness campaign against cyberbullying and trolling – which is also getting increasingly rampant among young Malaysians. You can check this out at DiSebalikWajah.my"
"If the Agong or Sultan made a mistake, is it seditious to point it out? Time to time, you’ll hear of an incident where the Sultan or Crown Prince of a state speaks out against an issue, such as when the Sultan of Johor ordered a Muslims-only laundromat to stop discriminating against Non-Muslims. The Malaysia Ahli Sunnah Waljamaah Organisation (Aswaja) president, Zamihan Mat Zin responded to that with a speech criticizing the Sultan of Johor, saying that it was not right to do so because Chinese Malaysians have “unclean” clothing. This was probably not a wise move even if he disagreed with the Sultan, because he got arrested for sedition on 11 October 2017. But is his case the rule, or the exception? Do all the critics of Malaysian Royalty get charged with a crime? Actually, not unless it’s seditious. But what’s considered seditious in the first place? “Sedition” basically means anything that disrupts social harmony Sedition is defined in Section 3(1) of our Sedition Act 1948, as summarized: Bringing hatred, contempt, or inciting dissatisfaction against any Ruler, any Government, or the justice system of Malaysia Inciting people to get the law changed illegally (such as through rioting or mob justice) Raising dissatisfaction among Malaysians Promoting tensions and hostility between the races or classes of Malaysians Questioning the status of our citizenship rules, the national language, the Rulers, or the special position of the Malays and the Natives of Sabah and Sarawak (the Social Contract) Since sedition has a wide meaning in the law, we’ll focus on the ones covering our Malaysian Rulers. The Sedition Act was created by the British colonial government in a time when our country was under the communist threat. This was meant to act against these Communists who were trying to topple the government at the time. As you can see from the way “sedition” is defined in the law, it can be used against anyone who means business when they say “bring down the government”. But because of how vaguely it’s worded, it also looks like even comments of dissatisfaction against a Sultan’s decision can be considered “seditious”. Before you assume that the government and our Sultans want to control everything we say, as with any other law, there are also exceptions to the rules on sedition… as we’ll see below. It’s okay to give constructive comments to the Sultan or Agong Section 3(2) of the same Sedition Act also says that it’s not seditious to do the following (summarized): Point out that a Ruler has been misled or mistaken in their decisions Point out errors or defects in the government’s policy, laws, and even errors in court decisions Persuade the government to change our laws by lawful means (except our Social Contract) To point out matters that cause tension and divides in our multicultural society, so that they can be solved The Sedition Act can be very broad on who can be charged with sedition, but the spirit of Section 3(2) is fairly clear. If you’re making comments with suggestions to better the country and solve its problems, you won’t get slapped with a sedition charge. Think of such comments as being on the same football team - the Malaysian team, and pointing out that another player’s techniques could use some refinement, and then showing them how instead of just saying “you suck”. There could also be times when someone’s words or actions are practically challenging the position of a Malaysian Ruler, like by actually preparing to topple the monarchy, in which case that someone could be charged with... “Waging war” against Malaysian Rulers This is a crime under Section 121 of the Penal Code, and it’s used in extreme cases like for rebel forces (of the Communist kind, not Princess Leia) or terrorists. While “waging war” is not clearly defined, it probably includes organising a violent revolution or a militant group because Section 122 makes it a crime to collect weapons to wage war against a Malaysian Royal. It takes a special kind of disagreement with our Sultans for this law to apply, such as the Filipino militants at Lahad Datu who were charged with waging war against the Yang di-Pertuan Agong. As a theoretical example, inciting people to come topple the government or monarchy by force might be considered an attempt to wage war against the Yang di-Pertuan Agong. But how the law will actually be applied to that kind of scenario remains to be seen. There’s a difference between being constructive and being insulting When we face a lot of our own problems, social issues, and more, it can be hard to remember that problems will always be there. It takes effort to move from just identifying problems to coming up with solutions for them, but it’s definitely more productive and constructive to do that. As for disagreeing with Malaysian Rulers, we can apply a rule which we could use even with common folk: it may not be wrong to call someone’s decisions into question if they’re mistaken, but it’s also unnecessary to attack them and make it personal."
"If your doctor has no license in Malaysia, here's what you can do It seems like us humans are silly ol’ creatures. We tend to trust figures in lab coats, at times without thinking about it. This is no one’s fault since there’s a long historical paper trail and cultural imprints on the effects that authoritative figures have on us. That’s how people who are dressed in white coats can potentially do so many things that we don’t allow other people to do to us (prostate exam, anyone?). Now, the question is: what can we do when we find out the doctor we’ve been seeing turns out to be a quack (a person who dishonestly claims to have special knowledge and skill in some field, typically in medicine)? ‘We gotchu,’ says the law Fortunately, we have legislation to cover our backs on this one. Part 2 of the Consumer Protection Act 1999 provides for “misleading and deceptive conduct, false representation and unfair practice”. Section 8(a) defines “false”, “misleading” or “deceptive” as conduct, representation or practice which is capable of leading a consumer into error. Doesn’t that sound very much like people who represent themselves as doctors/medical professionals, but aren’t really? It gets better. Section 9(b) specifically refers to services, which are what doctors are supposed to provide. No person shall engage in conduct that: (b) in relation to services, is misleading or deceptive, or is likely to mislead or deceive, the public as to the nature, characteristics, suitability for a purpose, or quantity, of the services. TL;DR: Don’t make people think that you can provide a service when you actually can’t. Part 4 of the same Act is on the Offences, Defences and Remedies in relation to Parts 2 and 3 of the Act. Section 25(1)(a) and (b) makes a distinction between offences that can be committed by corporate bodies and by individuals. (a) If such a person is a body corporate, to a fine of not exceeding two hundred and fifty thousand ringgit, and for a second or subsequent offence, to a fine not exceeding five hundred thousand ringgit (b) If such a person is not a body corporate, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both, and for a second or subsequent offence, to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding sJust ix years or to both Assuming we’re talking about a specific fake doctor, they would go under subsection (b), that is, that they’ll be slapped with a heavy fine of not exceeding RM 100,000 or imprisonment for less than 3 years or both. If they have the gall to repeat the offence, the fine goes up to a limit of RM 250,000, imprisonment of less than 6 years or both. The real juicy bit in section 25(2) is that if the act is a continuing offence, in addition to the above penalties they will be fined RM 1000 for each day or part of day during which the offence continues after the conviction. Let’s illustrate that with this example: being a fake doctor is a continuing offence, since it goes on over time, and isn’t a one-off affair. Yes, you read that right boys, section 25(2) can run concurrently with section 25(1). There are defences available to offenders, though, and are laid out in sections 27 and 28. The offender will have to prove that the offence was due to an accident, a reasonable mistake, etc AND/OR that the advertisement for their services are not their fault. Aside from that, can a fake doctor be sued for fraud? Yes, a fake doctor is a Fraud Section 17 of the Contracts Act 1950 sets out the requirements for fraud. ‘But wait, was there a contract between the fake doctor and I?’, asked Mr. Placeholder. Yes, there is technically an unwritten contract between you. An example here would be purchasing an item from a grocery store. Neither you nor the grocery shop have a signed document for your purchase(s), but the agreement is implied. [READ MORE: What counts as unwritten agreements?] Going back to section 17. It provides that ""Fraud"" includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract: (a) the suggestion, as to a fact, of that which is not true by one who does not believe it to be true; (b) the active concealment of a fact by one having knowledge or belief of the fact; (c) a promise made without any intention of performing it; (d) any other act fitted to deceive; and (e) any such act or omission as the law specially declares to be fraudulent That’s pretty wordy. What it essentially is is that if a person tempts you to enter into a contract with the intent to deceive, and he knows it’s a lie, etc, can be liable for fraud. Said contract would be void ab initio (void from the beginning), meaning there would have been no contract in the first place. In this sort of situation you would want to sue for damages, at the very least. What about criminal charges? Can a fake doctor be guilty of one? Can the fraudster be guilty of a criminal charge? Well, yes, it turns out that they can. Our Penal Code (a document which compiles all, or a significant amount of, a particular jurisdiction's criminal law) has a provision on the offence of cheating by personation. Section 416 makes it clear that: A person is said to “cheat by personation”, if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. So basically, a person is liable under section 416 if they impersonate someone or put out that they’re someone they’re not. It is further explained that the offence is committed whether the individual personated is a real or imaginary person! In our context, a Mr. Doom who pretends to be a medical professional called “Dr. Doom” would be liable under section 416. What can a person who’s found guilty of cheating by personation be punished with? Section 419 says: Whoever cheats by personation shall be punished with imprisonment for a term which may extend to seven years or with fine or with both. So… what can I do if I suspect that I’ve been seeing a quack? Linkin Park was wrong (as much as I loathe to say it), in the end it does matter. If you find out you’ve been visiting a quack, you do have some avenues to seek justice and compensation from both the perpetrator and the government. Before looking for a lawyer, you can contact the Ministry of Domestic Trade, Co-operatives and Consumerism (what a mouthful) at 1-800-886-800 for their toll-free hotline. They will help consumers who were misled by fraudulent services, fraudulent pricing, internet transaction fraud, et cetera. The thing to remember is: a person white coat does not always mean that they’re a professional or are qualified. Stay informed and stay safe."
"Are there laws that tell police when to fire their guns in Malaysia? Imagine this scenario. You are out at the mamak late one night, catching some drinks with your mates. Suddenly, you hear the whine of sirens and the screech of tires coming from a distance. Alarmed, you look around and see a car speeding down the road with two police vehicles in hot pursuit. The policemen are using their loud hailers in an attempt to get the car to stop but it continues speeding on. Then, you hear this sound, “truuupppp”, the unmistakable sound of an automatic gun being discharged. You see a policeman hanging out of the window of his police vehicle, firing at the car that refused to stop. Your heart thuds because all of this seems like a re-enaction of your favourite movie. The car then skids and crashes into a wall, the policemen hurries over. You, as a curious onlooker, join in as well. You expect to see a hardened criminal in the front seat but you see...a teenage boy? If the facts of the scenario that we describe above sounds familiar to you, it is because the scenario above mimics that of 15 year old boy, Aminulrasyid Amzah, who was shot dead after a night out with his friends at the mamak. 30 shots were fired at his car. 29 hit his car, 1 hit Aminulrasyid. Aminulrasyid’s death attracted the cries of many Malaysians, expressing shock and anger, and above all, police brutality. Our friends at Cilisos did a full write up on Aminulrasyid and you can read about it here. Aside from Aminulrasyid’s case, the Royal Malaysian Police have also been hauled to court over several questionable discharges of their firearms. One of them was with Norizan Salleh, a woman who was shot five times in the chest and who was awarded RM320,000 in damages after the court found that the police failed to demonstrate that shooting was necessary. Most recently, policemen fired several shots at a car which refused to stop at a roadblock in TTDI. The car tried to flee by mounting a divider. The driver was shot once in the back before getting arrested. These shootings leave us with a very important question of when can policemen fire their guns? Policemen can fire their guns under a whole bunch of scenarios First things first, police are empowered to carry guns by virtue of section 85 of the Police Act 1967 which simply states that: “A police officer may in the performance of his duties carry arms.” However, you before you go on an angry rant about the ineptitude of Malaysian laws, section 85 is not the only section to look at. Section 97 of the same Act tells us that the Inspector General of Police (“IGP”) may issue administrative orders which are called “Standing Orders” for the general control, direction and information of the police force. It is this section that gave gave birth to what is known as the “Inspector General Standing Order (“IGSO”). The IGSO is not available to the general public but we managed to find a copy online that was uploaded for educational purposes. However, we would advise our readers that we are unable to verify the veracity of this link and it has to be taken with a pinch of salt. Now that our disclaimer is out of the way, we would like to draw your attention to IGSO D222 (which is on slide 18 if you are reading the link provided above). IGSO D222 is the part that speaks about when police officers are allowed to discharge their weapons and why. The different scenarios will be dealt with in turn below. Use of guns during an illegal gathering/riot D222 allows police officers to discharge their guns when they are attempting to disperse an illegal gathering or riot but this must be done in line with the rules in the Public Order book. Use of guns when there are no alternatives There are several scenarios that allow for the use of guns in extreme scenarios. They are: A sentry protecting his area from attacks that may harm himself or the people/property he is protecting An attack on a police station/police post where weapons might be seized/prisoners released A dangerous attack that may cause death/serious injury To save a woman from a rape attack To save someone from a sodomy attack To save someone from a kidnapping Where someone has been attacked and wrongfully detained Fear of death/serious injury The police are allowed to discharge their weapons when there is risk of death or serious injury but the use of guns is only for preventive purposes and is not meant to cause more harm than what is necessary (this is an issue for the courts to decide). In addition to this proviso, guns are only allowed when there is fear of death/serious injury in the following situations: Robbery Breaking and entering a residence A fire-related incident with any kind of building (doesn’t matter if it is a residential or commercial building) Theft/home invasion that is capable of causing death/serious injury Preventing a prisoner’s escape A policeman is allowed to use his gun if he is trying to arrest or prevent a suspect from running away. There are two points to note in this subsection: Whether or not the individual is a “suspect” may depend on whether the policeman believes that the he committed the crime. This means that the “suspect” does not have to be formally charged with anything. It could be a man who was acting suspiciously at a roadblock and who attempts to flee when the police requested for him to stop. A warning has to be issued by the policeman before he fires his gun Aside from the different scenarios provided above, there are also extra rules that are found in D222 for when officers open fire. The first rule is that policeman are not allowed to fire “warning shots”. You know how in the movies, the heroic cop fires his weapon in the air and then the bad guys just end up a blubbering mess, crying for their mothers? Yeah, that is not allowed in Malaysia. Beyond that, the police are allowed to fire their weapons if you fail to stop and raise your hands after they have told you to do so. However, if they do choose to fire their guns, it must be because there was no other way for them to protect themselves or it was meant to control the situation. If the police choose to shoot at a car, they must be mindful of the general public and only aim at the tyres of the car. [READ MORE: Can Malaysian police legally search your car at a roadblock?] Above all else, the action of the policeman discharging his weapon must be reasonable. It cannot be by accident or for frivolous reasons. While policeman have the right to defend themselves, it is not a valid excuse to kill a “suspect” because the policeman was injured in the line of duty. Essentially, “shoot-to-kill” situations only exist in the rarest of situations. However, if a policeman does discharge his weapon and it doesn’t seem to be in compliance with the rules in D222, there is another law that the courts can look at. There are scenarios where killing someone is unavoidable These defences are actually not limited to police officers as unlike the rules in the D222, these defences are found in section 100 and section 103 of our Penal Code. According to our Home Minister, the police officers are allowed to rely on these sections when there is a situation involving a gunfight or an attack from criminals. In essence, sections 100 and 103 mirror the rules in D222. Section 100 provides for when a policeman (or you) is allowed to defend himself to the extent of causing death to another person. Like the rules in D222, it involves scenarios such as preventing an assault with the intention of committing rape or kidnapping. Section 100 (in part) Penal Code: “The right of private defence of the body extends...to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right is of any of the following descriptions...” Section 103, on the other hand, comes into play when a policeman (or you) is defending private property and it results in a death. The situations involve robberies, housebreakings and trespass resulting in death/serious injury. Section 103 (in part) Penal Code: “The right of private defence of property extends...to the voluntary causing of death or of any other harm to the wrongdoer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, is an offence of any of the following descriptions...” Now, that we know that the police are allowed to fire their guns in a multitude of scenarios, what does this mean? Basically, when the police tells you to “Berhenti”, DON’T RUN Usually if the police pulls you over in a roadblock or while you are walking down the street, they would have reasonable suspicion to do so. It may be because you fit the profile a suspect that they are looking for or maybe you were driving erratically. Regardless of what it is, the best thing to do in such a situation is to stay calm and heed the police’s instructions. For further information on what rights you have when the police stops you, head over to the Bar Council’s website here and download the Red Book (the book that tells you what your rights are when the police are involved). Most of all, don’t run out of fear because the police are empowered to use their guns if the situation warrants it. [READ MORE: Can Malaysian plainclothes police stop or arrest you?]"
"If a company in Malaysia fails, can I sue the directors? Have you ever wondered what directors in a company do? As kids, we would watch movies featuring old, white men sitting around an oblong table, shooting off their approval for decisions numbering in the millions and then they would waltz away to flirt with their secretaries and be chauffeured off in a nice gleaming Bentley. This is all good and fine if the company is doing well but what if the company is struggling to stay afloat and the director gets a new Rolls Royce? So, if you are an investor or a shareholder with a company that goes belly up or if you realised that your company suffered incredible losses in the past year and you think that this is caused by the directors of the company mucking about, you might actually wonder if these directors can be sued. Malaysia recently overhauled the laws that governs companies in Malaysia with the new Companies Act 2016 and you would be very pleased to learn that you can actually sue directors for breaching their director duties. By the way, this article is not aimed at investment schemes which is a wholeeee other ball park. [READ MORE: If you lost money in a Malaysian pyramid scheme, can you get your money back?] Before we move into the how you can sue part, let us give you a brief overview of what duties directors have (by the way, it doesn’t matter if they are the directors of a two dollar company or a multinational company, they still have director duties to fulfil). Directors actually have a whole list of duties under Malaysian law The Companies Act 2016 (“CA 2016”) actually sets out a list of duties that directors of companies in Malaysia would have to adhere to. However, in order to keep this article succinct, we shall focus on three (more) common duties. 1. The director must act for the company The first duty can be found in section 213(1) which sets out the duty for directors to act within the powers that have been given to him. To put it in context, there are two ways a director can gain his powers from in Malaysia. The first would be through the Companies Act 2016 and the other way would be through the company’s constitution (we will explain what this is later on in the article). Section 213(1) Companies Act 2016: “A director of a company shall at all times exercise his powers in accordance with this Act, for a proper purpose and in good faith in the best interest of the company.” For example, if the CA 2016 states that directors are allowed to allot company shares subject to them gaining approval through a company resolution first. This means that if a director were to allot shares without a resolution authorising it, they would be acting beyond their powers and could be guilty of a breach of director duties. If you are clear on what the Act says and are scratching your head over the constitution part, because you thought that only countries have constitutions, don’t fret because an explanation is rightttt here. The first thing you need to know is that a company’s constitution works, more or less, in the same way as a country’s constitution. It sets out the basic rules that the company has and as explained in section 33 of the CA 2016, the constitution also binds every member in the company. This means that not only is the constitution enforceable by the members against the directors, it is also enforceable between members of the company. Section 31(2) CA 2016 also explains to us how a constitution works hand in hand with the relevant Malaysian laws. In essence, if the CA 2016 allows some discretion for the companies to set their own rules, they can do so. It is important to note that under the new CA 2016, it is not mandatory for every company to have a constitution – it is optional. Section 31(2) CA 2016: “If a company has a constitution, the company, each director and each member shall have the rights, powers, duties and obligations set out in this Act, except to the extent that such rights, powers, duties and obligations are permitted to be modified in accordance with this Act, and are so modified by the constitution of the company.” Aside from not exceeding the limits of their powers, directors are also supposed to exercise their powers in a way that they were intended to be exercised. For example, if a director has the power to allot shares, he can allot them in a way that would benefit the company as opposed to allotting them in a way that would make themselves richer. 2. The director cannot do crazy things The second duty is found in section 213(2) and it states that: “A director of the company shall exercise reasonable care, skill and diligence with – (a) the knowledge, skill and experience which may reasonably be expected of a director having the same responsibilities; and (b) any additional knowledge, skill and experience which the director in fact has. This duty to exercise reasonable care, skill and diligence may sound rather vague but the courts would judge this using the objective and subjective tests. The objective test is found in part (a) of section 213(2) wherein the judge would look at whether the director had acted in a way that other directors with the same skills and responsibilities would have acted. This means that the judge would look at how the general population of directors would have acted. For example, if you are a director and you made the decision to sell your company for RM10,000 while every other director out there would have sold it for a minimum of RM50,000, you would probably be guilty of failing to exercise reasonable care and skill. However, section 213(2) also involves a subjective test. A subjective test is where instead of the judge looking at the knowledge and skill that the general population of directors would have, the judge would look specifically at any additional knowledge and skill that you have. This means that if you had any special knowledge that would give you greater skills than a “normal” director would, you would be judged with those standards in mind as well. For example, if you were a director of a company and you had a degree in accounting, the courts would look at that degree and would more likely than not find you guilty of failure to exercise reasonable care and skill when you decided to sell off your company for RM10,000. The objective and subjective tests found in section 213(2) means that the judge is required to consider the objective knowledge of directors as well as the knowledge of the director in question. 3. The director cannot have sneaky under-table dealings This duty is meant to ensure that directors do not abuse their positions as directors in order to gain personal benefits. An example of a situation like this would be if the director of Company A influences his company to enter into a contract with Company B because he owns shares in Company B and would stand to gain a lotttt of money if the deal goes through. The CA 2016 aims to prevent situations like these by requiring directors to declare any interests they may have in a proposed transaction. Section 221(1) says: “Subject to this section, every director of a company who is in any way, whether directly or indirectly, interested in a contract or a proposed contract with the company, shall as soon as practicable after the relevant facts have come to the director’s knowledge, declare the nature of his interests at a meeting of the board of directors.” This means that it would potentially be a breach of a director’s duties if he were to sneakily try to steer the company into being part of a deal that benefits him and not the company. To our more observant readers, you might realise that this duty would potentially overlap with the first duty where the Act states that directors have to act “in the best interest of the company”. Such an observation is accurate as the sections that govern directors’ duties can overlap and it essentially means that all those old-timey images we have of directors enjoying life and expensive lunches do not stand anymore. Directors are not allowed to take a hands-off approach in running the company. This is illustrated in the UK case of Lexi Holdings v Luqman where the court stated that directors must keep themselves informed of what is going on in the company and participate in management. Now that you are aware that directors do have duties to fulfil to the company, the next question you have would be, how in the world do you sue directors? There are specific rules and procedures to follow when sueing directors As a general rule that was established in the very, very old English case of Foss v Harbottle (this was decided in 1843, when even our grandparents weren’t born yet), a company is the proper plaintiff. This means that the company is the only one who can bring a legal action. But herein lies a catch with the rule in Foss v Harbottle, if the companies are the proper plaintiffs and if directors control the companies, how could you ever sue a director that has been messing up? The rule in Foss does allow for several exceptions but they were very hard to use. This is where section 346 and section 347 of the Companies Act 2016 steps in and provides you with ways to sue your directors. There are actually several other ways you can sue a director (through a shareholders’ agreement, company’s constitution and a winding up petition) but this article will focus on what is contained in the Companies Act in order to avoid confusion. Remedy in case of oppression This remedy is found in section 346 and it reads as follows: “Any member or debenture holder of a company may apply to the Court for an order under this section on the ground – (a) that the affairs of the company are being conducted or the powers of the directors are being exercised in a manner oppressive to one or more of the members or the debenture holders including himself or in disregard or his or their interests as members, shareholders or debenture holders of the company; or (b) that some act of the company has been done or is threatened or some resolution of the members, debenture holders or any class of them has been passed or is proposed which unfairly discriminates against or is otherwise prejudicial to one or more of the members or debenture holders, including himself.” If you are at a loss over what the section means, take deep breathes because it essentially means that you are allowed to bring the directors to court if you realised that directors have been acting unfairly towards you and this has affected your interests as members. This means that the are two things you need to prove when bringing this action to court. The first is that you need to prove that there has been an element of unfairness and the second is that you need to show that it affected your interest as a shareholder or member of the company. This is a remedy that has been designed to allow you to bring an action when you, as a shareholder/member, has suffered a personal wrong. Typically, the courts will first look at any agreements between you and the other directors to see if there has been any understandings or legitimate expectations between you and the company/other directors. If there are any understandings or legitimate expectations to be found, then you would have a stronger case for proving oppression. An example of how an action can be considered as unfair and affecting your interest as a shareholder/member is where you were promised that you could participate in the management of the company but the directors then excluded you from management despite promising you otherwise. This was the scenario that was present in the English case of Ebrahimi v Westbourne Galleries. Another way you could bring an action through the oppression remedy is where the directors have acted in a way that has breached the company’s constitution. Among countless ways that directors can breach their company’s constitution is by failing to hold the annual general meeting (AGM) or by depriving you, a shareholder, of knowing what is going on with the company’s affairs (section 195 of the CA 2016 now provides that members can make recommendations of the management of the company if they manage to pass a resolution with a 75% vote). 2. Derivative action A derivative action is found in section 347 of the Companies Act and it reads as follows: “(1) A complainant may, with the leave of the Court initiate, intervene in or defend a proceeding on behalf of the company. (2) Proceedings brought under this section shall be brought in the company’s name.” There is a crucial difference that can be found in a derivative action – it is an action you bring for the company and any damages you manage to win goes to the company. This means that unlike the oppression remedy where you sue because your interests as a shareholder has been affected, the derivative action is an action you bring when you realised that the company has been affected by the wrongdoing of directors and any remedy that is awarded by the court goes back to the company. In essence, should you choose to bring a derivative action, you are doing so out of the good of your heart and the immense love you (may) have for the company. If you recall the case of Foss v Harbottle rule that was discussed above (which is known as the proper plaintiff rule for you curious birds out there), a derivative action is basically to circumvent scenarios where a company refuses to sue itself for wrongdoings. This provides you, as a shareholder, with the remedy to right a wrong that has been to the company. The Companies Act sets out all the procedures that you have to follow in bringing a derivative action claim but in a nutshell, they are as follows: 1. You have to apply for leave (permission) from the court to bring a derivative action 2. You need to give the directors a notice in writing of your intention to apply for leave from the court at least 30 days before you do so 3. If the court grants you leave, you have to initiate the action within 30 days The court will grant you leave to continue a derivative action if they think that you are acting in good faith and if on the face of it, the derivative action appears to be for the best interests of the company. However, at the end of the day, nothing protects your rights better than one simple thing... You need to know what is going on in the company At the end of the day, the law can provide directors with various duties and you, the shareholder, with various remedies. But if you just take a hands off approach in caring for the companies that you invest in, then no amount of law can help promote good accountability. Shareholder activism is an important part in keeping directors accountable and preventing them from acting beyond their powers. So, on this note, invest wisely and remember to consult your lawyer if things go awry."
"What happens if you can no longer work after getting into an accident in Malaysia? Imagine this scenario… you’re crossing the street while the pedestrian crossing light is green. All of a sudden a car comes along and hits you, running over your leg. Your leg’s broken, but the situation’s made worse because you’re a dance instructor – how are you going to teach? Breaking an arm, leg, or any kind of serious physical injury is generally a traumatic experience to go through, especially if it’s caused by someone else’s carelessness. It’s also at this time that you should start looking into how you can seek justice to compensate for your injuries, possible loss of income, and other related hardships. While there’s the criminal route (taking police action), and insurance claims; we’re going to focus on a third option – lawsuits. Of course, it is simpler to assess damages for a broken arm, than, say, being paralyzed from the neck down and being wheelchair-bound for the rest of your life. And how does the court determine how much you need to be paid if you can’t ever work again? Yes, you can take someone to court for injuring you! Most of the time, these accidents would fall under tort claims. Tort law is a long and complicated topic but, for the purposes of this article, it can be understood as the ability to seek damages from the wrongdoer for some form of harm that is recognized by law (such as personal injury or loss of income). Before you go asking why you would want to seek damages when you’ve already been damaged enough, relax. “Damages” is a term used to refer to the compensation you’re eligible to get for the damage inflicted upon you. The case of Ong Ah Long v Dr. S. Underwood highlights the objective of damages. They are to be compensatory in nature, as put by Syed Agil Barakbah FJ: ...that will give the injured party reparation for the wrongful act and for all the natural direct consequence of the wrongful act, so far as money can compensate… [READ MORE: What is a tort?] The award aims to try to put the victim back to where they would be before the accident. Something to also note is that a plaintiff (the person suing) can only bring a cause of action ONCE in terms of a specific injury. This means that if the court gets the wrongdoer to pay you RM10,000 in damages for your broken arm, you can’t sue the person again for the same broken arm 6 months down the line. Now, you may have heard of terms like special damages. What is that? Are there different types of damages? What makes special damages so special? What are the types of damages you can sue for? Judge Mohamed Azmi J in the case of Sam Wun Hong v Kader Ibramshah said that there are two classes for damages in personal injury actions. The first one is special damages, which has to be specifically pleaded and the second being general damages, which does not have to be specifically pleaded. The plaintiff will be able to claim both special and general damages as long as he is able to prove that he has suffered loss. This may sound confusing, so let’s take a closer look starting with special damages. Special Damages This type of damages is categorized as the plaintiff’s actual pecuniary (relating or consisting of money) loss between the date of the accident and the date of award/settlement. However, such loss must be justified to the satisfaction of the courts. Examples of special damages are: Hospital bills, personal items and effects, and transportation expenses. Let’s have a go at these examples. Accident: Ever lose an item in an accident? Personal items and effects can be claimed by way of special damages by the plaintiff UNLESS it is due to the plaintiff’s own lack of care, or if it due due to some other event that is not caused by the defendant. An example would be that if Ahmad hits Badrul with a car, and as Badrul lays there unconscious on the road, some other guy comes and steals his very expensive watch. Badrul now cannot make a claim for special damages against Ahmad because Ahmad did not cause the loss of said watch. Hospital charges: Another common claim for special damages is pre-trial medical expenses. These can be claimed as special damages since it’s reasonable to accept that you can’t wait to win a case before seeking treatment. However, complications can arise when it comes to the reasonableness of the medical expenses, and when the treatment involves private hospitals. Who wouldn’t want to go to private hospitals for treatment, am I right? The case of Yeap Cheng Hock v Kajima-Taisei Joint Ventures considers whether the claim for the purchase of Brand’s essence of chicken and fruits was reasonable as medical expenses. The judge ruled that that since there was no medical evidence such foods were necessary, and in light of food and nourishment provided by the hospital, he was not prepared to award the compensation. Now that we’ve seen some of the common types of special damages, let’s take a look at general damages. General Damages General damages are awarded for losses that are more intangible in nature and are subsequently more difficult to quantify. It also includes the plaintiff’s non-monetary (non-pecuniary) losses whether pre- or post-trial, and pecuniary (monetary) losses that may be incurred after the trial. For example, the time between getting into a road accident and going to court, you’d probably be in pain. That falls under pre-trial non-pecuniary loss. Examples of general damages are pain and suffering, loss of amenities, and loss of future earnings. Pain and suffering sounds pretty vague. It actually encompasses both the physical pain and the emotional suffering caused by the injuries inflicted by the defendant’s tortious acts. The amount awarded is affected by the type of injury and length of suffering. It is interesting to note that embarrassment and loss of confidence is also included. What if you need to amputate a leg as the result of the defendant’s fault? The Malaysian Bar has published a guideline called the Compendium of Personal Injury Claims and it is approved by the Judiciary. Different types of injuries are listed in the Compendium, and there is a range of suggested awards for each one. For the leg amputation scenario, the suggested amount is between RM100,000 and RM150,000 if it is amputated at the hip. However, the Compendium is merely a guideline and is not meant to restrict parties from submitting a claim for higher or lower amounts. In specific situations, judges and lawyers can depart from the guidelines. There’s a catch: you can only access the Compendium if you register with the Malaysian Bar website. Time heals all wounds… unless you’re paralyzed from the neck down. In these sort of scenarios, you wouldn’t be able to work anymore, whether temporarily or permanently, and this would result in a loss of income. Depending on the extent of the injuries, you can claim for total or partial loss of earnings. If the injuries are permanent and irreversible, then the loss of income may be permanent, and vice versa. The case of Yang Salbiah & Anor v Jamil bin Harun gives us the lowdown on the award for loss of future earnings. ...capital sum which, after all proper deductions, will represent her loss of earnings… The award is a nominal one, unless the plaintiff can prove that the future loss is sufficiently severe to merit a substantial award. This means that chances are the damages you’ll be awarded with is a token sum unless you can prove that your future loss is so great that it convinces the court to give you a more substantial award. Of course this list of general damages is not exhaustive. That sounds pretty good. ...Or does it? It feels real good (not to mention comforting) to have an avenue to pursue a cause of action, if we need one. However, a successful claim for damages is not as simple – all of them have requirements and some of them can be quite restrictive. For example, If you wanted to claim for treatment you got from a hospital overseas, it must be reasonable and there must be justifications (i.e., the treatment is only available in that particular hospital). Furthermore, award for loss of future earnings would be a lot less than you think. This means that your compensation may not be as simple as taking your last drawn salary and multiply it by amount of months you can’t work. The courts take ‘vicissitudes of life’ (changes in life and circumstances, usually for the worse) into account when they decide on the amount of compensation for loss of future earnings. The idea is that chances are you won’t be employed and be making money 100% of the time, so there is a deduction there. All in all, the keyword is fairness – The victim must be compensated, but the wrongdoer also shouldn’t have to overpay. It’s also at this point that we should mention that every case is different based on the circumstances. It’s best that you seek a qualified lawyer for further advice."
"Can Malaysian students study law through comics and manga? by Shahrul Mizan Ismail | Timbalan Pengarah (Teknologi Pembelajaran), Universiti Kebangsaan Malaysia One of the perks of being a law teacher are the continuous visits and the frequent calls or messages from your old students who love to reminisce about things that they remember from your classes. One of the things that I observe about my ex-students is that whenever we meet or talk, they love to remind me of a story that I told them in class before, usually starting with “Sir, do you still remember the time when that client of yours who did such and such and that fierce judge who did this and that…” or “Sir, I will never ever forget that story that you told us about that case when…. ”. I would usually take some time to remember many of my own stories, so I must say I find it really intriguing that students, after so many years, could still remember these stories! But when I ask them about anything that I lectured “properly” on powerpoint slides, or a judgment that I dictated to them word by word in tutorials, and they’d just sheepishly shrug and say that they don’t remember! So perhaps there’s something here – why do students remember stories so well but not actual lecture notes? The power of storytelling in legal education There is something about ‘stories’ - how the human mind works, and how the combination of both lead to an effective learning process. According to Jonathan Haidt, an American social psychologist and a professor at New York University's Stern School of Business, “the human mind is a story processor, not a logic processor,"" and that we use logic inside stories better than we do outside. Leda Cosmides and John Tooby, both renowned pioneers in evolutionary psychology, have also demonstrated that a certain test can be solved by fewer than 10% of participants when presented as a logic puzzle, but by 70-90% when it is presented in the form of a story. In the context of legal education, ‘story telling’ actually comes in many ‘disguised’ forms, sometimes without us realizing its existence. It may even come as a surprise to realize that what we have been doing all along is learning about stories, constructing stories, and then telling them. It is not uncommon to hear a law lecturer instructing (or nagging) his/her students to PLEASE read cases before coming to class, and to review and subsequently write reports based on these cases. In addition, students are sometimes also expected to present their findings in front of the class, and these exercises usually carry a rather substantial portion of the total marks for the course. Notwithstanding the so-called ‘popularity’ of these traditional approaches among law lecturers, many students find them to be mundane and daunting, sometimes a bore and to a certain extent ineffective. Whenever assigned with list of cases to read or review, they’d grudgingly accept it, and later resent saying, “Why is reading cases so important in the process of learning the law? Surely we can refer to textbooks and millions of online websites that are available on the net to get the gist of those cases. Do we really have to read the actual law report? Can’t we survive (if not score) our law exams without having to read all those wretched cases??!” Law school final exams mainly test students on two important aspects, namely, how well they know the law; and whether they can practically apply it to the kind of mock problems that appear on their final exam question papers. It doesn’t test students on their case reading skills nor does it ask any questions solely on any of the cases listed in the course outline. So, students sometimes may be mistakenly lead into thinking that case reading is nothing but a trivial, unnecessary burden imposed upon them by conservative-minded lecturers. But this is of course, NOT true at all. Law is more than just reading textbooks, so I got my students to make comics! The reality of the matter is that law is NOT a course that relies entirely on textbooks and lecture notes. Search all you want, but you can never find one school-like textbook that compile all the “laws” that you will be learning that you can read back to back for exams. In truth, what is taught in law classes is not a static set of rules, but a constantly evolving system of principles. Hence, students are expected not to just read books or skim through sources from the internet, but to also understand the law via critical examination of cases that have been decided on such principles. This may sometimes lead towards the feeling of lost, and wildly hunting for answers to perplexing questions. But believe it or not this actually is perfectly normal, and it is in fact intended! Since it is actually a part of the learning process in legal education. Yes, telling stories in the process of teaching the law has been done in the past. In fact it is somewhat common. As lecturers, we tell stories all the time – about our legal practice experiences, the facts of decided cases that we use to demonstrate the operation of certain laws, and examples of situations that can be used to explain a legal concept. But these are stories that we tell the students, and we tell them in class. What I wish to share however, is the excitement of ‘storytelling’ the reported cases that are listed in our course outline, in the form of a comic! And instead of me telling the stories, my students were the ones who were given the task to do the ‘storytelling’, and they do it via cartoon characters that they created. Instead of asking my students to do the conventional case review that we all know since time immemorial, I gave them a certain portion of marks to summarize those cases in the form of the said law comics. Storytelling through funny characters and colourful pictures may seem odd for a profession focusing on activities like drafting a contract, proposing a regulation, writing a will, crafting a legislative provision, or writing up a brief. But it certainly worked its charm in really making students understand cases from the actual law reports, and subsequently motivate them to use their creativity to ‘storytell’ the facts, issues and decisions of the case in a more fun and easy-to-remember method. Can students learn more by reading comics? According to Shelley Hong Xu, associate professor in the department of teacher education at California State University, graphic novels and comics can be used as a “point of reference” to bridge what students already know with what they have yet to learn. For example, comics and graphic novels can teach about making inferences, since readers must rely on pictures and just a small amount of text. By helping students transfer this skill, she says, teachers can lessen the challenge of the actual textbook. Talking along the same line, Stephen Cary, a second language learner specialist, explained that the dramatically reduced text of many comics make them manageable for readers who have problems coping with the English language. I believe that this very much caters the need of our Malaysian law schools where we will have students who may encounter these sort of problems. But most important of all, the biggest benefit is that this case-review-via-comic method helps revive my students’ interest in case reports and harnesses their case reading and reviewing skills. For second language learners or students who lack the ability to visualize as they read; it provides a graphic sense that approximates what good readers do as they read. It avoids the tendency to ‘cut and paste’ or parrot exactly what the case report says, and also provides an effective way for reluctant students to subsequently (after completing the reading) communicate a story that has a beginning, middle, and end. To me, comics and graphic novels are an excellent vehicle for delivering the important content of the case – i.e. facts, issues, ruling and reason for the judgment writing - as a story has to be pared down to its most basic elements. It is easy for the students to look at a short comic strip and quickly understand (and simultaneously memorize!) the cases rather than read through the conventional case report line by line, every time they need to refer to it. It engages them, stimulate their interests and motivates them to use those cases in their learning of the law. Dr Shahrul Mizan Bin Ismail is an Associate Professor of Law at the Faculty of Law, National University of Malaysia (UKM). He has two main areas of specialization which are International Human Rights Law and Civil Procedure. He is the author to several reference books for Civil Procedure. He was also involved as an expert in the Malaysia’s National Human Right Action Plan (NHRAP) and Malaysia’s Syariah Index in 2015, both under the Malaysian Prime Minister’s Department. He is currently the advisor for Malaysia’s Department of National Unity & Integration under the Prime Minister’s Department."
"Can Malaysian employers stop their ex-staff from joining a competitor? Imagine you’re leaving your job to start your own company, or you’re joining a competitor to your current employer. You tender your resignation with the notice period, and on your last day, your boss reminds you that whether you start your own business or get a new job, you cannot work for a competitor or become a competitor. Your boss tells you that you have to follow this rule for an entire year. What’s more, this is not just any request from your boss, it’s written in the employment contract you signed when you first got the job! But being trained in this specific field for so long, it would take a while for you to learn up another specialty. An entire year is not time you can afford to be wasting, but getting into trouble with the law is also not an option. So what do you do? Carry on, carry on, like it doesn’t even matter. It’s called a non-competition clause, but it’s more bark than bite The Queen reference aside, it’s not a joke. This agreement is commonly known as a non-competition clause in employment contracts. If you’re not sure which part of your employment contract it’s in, it’s normally in the part labelled “non-competition”, “other business”, or “restriction of trade” and reads something like this: “After the termination of employment for any reason whatsoever, the employee shall not for a period of 12 months from the date of termination carry out any business of any nature that is similar in nature to or is in competition with the employer.” While they are not technically illegal in Malaysia, non-competition clauses have no legal effect because of Section 28 of our Contracts Act 1950: Every agreement by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, is to that extent void. This law was made because it’s pretty unreasonable to let employers stop other people from doing a legal job or legal business. While we won’t go into the whole debate behind it, but know that employers are given legal protection over the confidential information their employees may have gotten while working with them - but that’s a story for another article. No, you still can’t set up a competing business while you’re employed If the law sounds like it allows employees to set up competing businesses when they’re still employed, it doesn’t mean that. There’s a legal concept called “fiduciary duties” which apply to employees. Basically, it means that employees owe a high standard of care towards their employers and they must act in good faith for the benefit of the employer. Any actions that work against your employer are considered a breach of your fiduciary duties and you could be sued for compensation. For example, if you took your employer’s contacts to set up your own business, you are acting against your employer’s interests - by stealing their customers. Making a sale for your employer and pocketing all the profits would be another example of a breach of duty - your employer can still decide to give you a commission, but that’s a decision for them to make. Think of your paycheck as buying not only your time, but some of your loyalty as well. Business partners can use it though Sometimes, non-competition clauses are valid because the people involved are not employer-employee, but business owners instead. The extension to Section 28 of the Contracts Act 1950 is that an agreement “not to carry on business of which goodwill is sold”. If you just sold a car business to someone, you might agree on a clause that says you will not open another car business that competes with the one you just sold. There are 3 other exceptions in Section 28, as below: When selling a business, you can agree with the buyer to not operate a similar business nearby Business partners can also agree to not compete with each other during the partnership or even after they part ways Business partners can agree to not operate any other business while their partnership is in effect Always read what you’re signing up for Non-competition clauses are used even though they’re not enforceable because companies want to safeguard trade secrets and sometimes ask lawyers to include it as a safety measure. While they are not enforceable in Malaysia, there may be other clauses which are unfair to you which you might unknowingly agree to. Always read your contracts and understand what they mean. While the law will save you from non-competition clauses, there might not be laws protecting you from other unfair requirements."
"Adakah pukul dan tahan PENCURI salah di sisi undang-undang?! Pernah tak korang tonton atau melihat sendiri depan mata sekumpulan warga Malaysia menahan penjenayah? Nak lagi pelik takde sorang pun anggota polis kelihatan, dan korang pernah tertanya tak “boleh ke seorang rakyat Malaysia tanpa apa-apa kuasa dari pihak polis menahan seseorang?”. Kat dalam artikel ni, kita akan sentuh isu tersebut dan melihat apa kita sebagai rakyat Malaysia boleh buat kalau tersempak dengan penjenayah. Ya, rakyat biasa memang boleh tangkap penjenayah Menurut Seksyen 27(1) Akta 593 Kanun Tatacara Jenayah (Tiada terjemahan rasmi), seseorang individu boleh menahan penjenayah atau suspek yang dipercayai sedang atau telah membuat kesalahan undang-undang, asalkan kesalahan tersebut merupakan jenayah yang tidak memerlukan jaminan (non-bailable offence) seperti mencuri, merompak, membunuh, atau merogol. Berdasarkan akta tersebut itu juga, bila sebarang tangkapan telah dibuat tanpa penggunaan kekerasan melampau (seperti serang suspek guna senjata lebih hebat), suspek hendaklah serta merta diserahkan kepada pihak polis di balai yang berdekatan. Video kat atas ini merupakan contoh baik rakyat membuat tangkapan. Berdasarkan interview oleh peguam Dinesh Muthal di Free Malaysia Today, dia berkata: “Kadang-kadang kita memperlihatkan orang ramai memukul pencuri yang sudah ditangkap, dan itu tidak boleh dijadikan alasan untuk memukul seseorang. Ini merupakan sesetengah kes yang saya kena tanggani. Dan bila dah tangkap, kita tak boleh ‘simpan’ dia lama-lama, kalau tidak tindakan itu dikira sebagai menculik sebab itu penting untuk hubungi polis selepas tangkapan dibuat.” – Dinesh Muthal kepada Free Malaysia Today, terjemahan oleh ASKLEGAL. Dinesh juga berkata berkata sebarang penangkapan mustahil jika tiada sebarang paksaan atau kekerasan jadi ia dibenarkan tapi tidak boleh secara melampau. Tapi ini kalau pesalah kantoi melanggar undang-undang depan mata orang. Ibarat konsep “innocent until proven guilty”, suspek dibenarkan untuk lepas dari tahanan orang awam jika terbukti atau terdapat keraguan tangkapan bahawa suspek adalah penjenayah. Ini tidak bermaksud suspek boleh lari terus, kalau siasatan polis selajutnya dikaitkan semula, suspek boleh ditahan sekali lagi oleh pihak polis. Jadi rakyat biasa pun boleh jadi polis lah? Walaupun rakyat biasa boleh buat tangkapan terhadap suspek jenayah ini tidak bermaksud kita boleh melakukan rondaan dan minta I.C seperti anggota polis (menyamar sebagai anggota polis merupakan satu kesalahan besar). Malah dalam sesetengah kes, pihak polis sendiri memerlukan waran atau bukti yang kukuh untuk melakukan tangkapan. Tapi menurut Akta 593 Kanun Tatacara Jenayah di bawah Seksyen 27 (5) pula, kalau suspek ditangkap oleh orang awam, suspek dibenarkan untuk memberi maklumat seperti nama dan alamat kediaman kepada orang yang menangkapnya sehingga anggota polis tiba. Jadi kalau dilihat dari satu perspektif, orang awam boleh minta maklumat peribadi suspek ini termasuk jugalah bagi sesiapa yang membantu untuk menangkap suspek. Lagi satu perkara penting yang boleh diberi perhatian adalah perbezaan menangkap penjenayah dan mempertahankan diri dari penjenayah. Nampak macam lebih kurang sama tapi Akta 593 ini sebenarnya agak berbeza dari undang-undang mempertahankan diri di bawah Seksyen 96 – 106 Akta 574 Kanun Keseksaan (Tiada terjemahan rasmi). Akta tangkap orang ini lebih kepada kejar penjenayah yang sedang melarikan diri atau kantoi sedang melakukan jenayah manakala akta mempertahankan diri ini lebih kepada mangsa jenayah. Tapi apa yang sama adalah, orang awam tidak dibenarkan untuk menggunakan kekerasan yang melampau untuk tumpaskan penjenayah - yang itu pihak berkuasa mempunyai skop yang berlainan. Setakat ini kita dah cover sedikit sebanyak tentang akta penangkapan suspek oleh orang awam, tapi macam mana pula kalau kita yang ditangkap? Hak suspek yang ditangkap oleh orang awam Salah satu kes yang berjaya tangkap perhatian media berkaitan dengan ‘salah guna kuasa’ pernah terjadi pada bulan April awal tahun ini. Kisahnya seorang lelaki telah ditangkap oleh orang sekeliling apabila dia kantoi sedang mencuri. Suspek yang berumur 51 tahun tu telah mati ketika dalam tahanan orang awam dimana suspek yang telah dipukul teruk sehingga berlaku pendarahan dan mati di hospital Kuala Lumpur. Jadi berdasarkan cerita di atas, orang awam telah memukul suspek selepas berjaya ditangkap. Seperti yang dinyatakan oleh Dinesh: “Anda dibenarkan untuk menggunakan kekerasan untuk menangkap suspek, tapi kalau ia digunakan lebih dari diperlukan, anda sendiri sedang melakukan kesalahan” – Dinesh Muthal kepada Free Malaysia Today, diterjemah oleh ASKLEGAL *AMARAN – VIDEO 18SG Macam video kat atas ini pula menunjukkan satu kesalahan dimana orang awam telah memukul suspek selepas ditangkap. Menurut peguam Syahdrezan Johan yang ditemu ramah oleh The Star, kalau ditangkap, kita ada hak untuk mendiamkan diri walaupun ditahan oleh pihak polis. Menurutnya lagi, suspek yang ditangkap telah dijamin oleh Perlembagaan Persekutuan bahawa suspek berhak untuk mempertahankan diri di mahkamah nanti bersama peguam yang telah dilantik oleh suspek sendiri. Jadi andai kata kalau korang telah ditangkap oleh orang awam, mereka tidak dibenarkan untuk memukul, menyeksa, atau simpan korang lama-lama. Kalau ditanya pun, korang hanya boleh kasi nama penuh dan alamat rumah sahaja. Apabila diserahkan kepada anggota polis pula, korang masih ada hak untuk tidak berkata apa-apa sehinggalah masuk mahkamah dan menurut Akta 593 Seksyen 28 (A), anggota polis yang bertanggungjawab perlu kasi masa untuk hubungi keluarga dan peguam. Jadi tak kisah lah kalau anda ditangkap atau yang menangkap suspek, perlu diingkatkan bahawa setiap tindakan ada hadnya. Tapi janganlah berkelakuan sampai ditahan oleh member-member awam la."
"5 ways you can (possibly) get around a no refund policy in Malaysia All too many times we have entered shops, chosen what we like, bought our items, and then we find this dangerous line printed on the receipt:- “No refunds or exchanges allowed” A lot of Malaysians are not aware of the consumer rights we have under law, and unfortunately some shops take advantage of this, such as by using one of these 5 sales tactics we covered to trick customers. One of these practices is using no refund policies. Although it depends a little on the exact scenario, many no refund policies have no effect in Malaysian law and the shop must give you a refund or an exchange. However it must be noted that this article is meant to inform you of your consumer rights, not how to game the system. An item still needs to be returned within a reasonable time period and condition – you can’t return a shirt you’ve already washed and worn, or a box of chocolates that’s already half-eaten. There are also exceptions, such as underwear for hygiene reasons. Here are some scenarios you might find yourself in where you can return the goods you received. [READ MORE: What can you do if you bought fake food in Malaysia?] 1. You were informed about the no return policy too late This law is the reason why some parking lots have BIG and sometimes red text at their entrances saying something like “the management does not accept any responsibility for injury or loss suffered in this parking lot” or “park at your own risk”. This is the English case of Thornton v Shoe Lane Parking [1971], in which Thornton was injured because of Shoe Lane Parking’s negligence when he was collecting his car. (We incorporated this law in Malaysia through the local case of Sanggaralingam s/o Arumugam v Wong Kook Wah & Another [1987]) So we’re used to parking lots putting a big sign at the entrance with their parking rates and their terms and conditions. In Shoe Lane Parking, the terms and conditions were displayed on the pillars inside the parking lot. It was decided that the terms and conditions were displayed too late and cannot take effect since the person had already entered the parking lot. This applies to receipts you get after buying something as well. In a lot of cases, the “no refund” condition is only printed at the bottom of your receipt. According to Lord Denning in Thornton’s case, any terms and conditions that come on a piece of paper after you have done the deal are invalid. Therefore, if a shop wants to implement a no refund policy, they need to tell you about the policy BEFORE you pay at the counter, else their no refund policy will be invalid by law. This is why shops usually have their refund policy displayed at the checkout counter, and/or the cashier may tell you whether something is returnable or not before they scan it. 2. You’re cancelling a package or membership Going to the gym gained some popularity in recent years, with their attractive packages for longer term memberships having great discounts. But a lot of us are afraid to commit to an entire year of membership. What if our job transfers us elsewhere? What if our schedule gets tight and we can’t make time for the gym anymore? Contracts for spa sessions, facial treatments, and gym memberships are known in law as future services contracts - you get to use the benefits of the contract at a later date. According to Section 17 of the Consumer Protection Act 1999 (CPA), no refund policies for future services contracts are illegal. And under Section 145, any person that breaks this law will be fined up to RM50,000 or jailed for up to 3 years (RM100,000 or up to 5 years for repeat offences). Companies that are found guilty under this law are fined up to RM100,000 (RM200,000 for repeat offences). Consumers who cancel their future services contracts can only be charged: 5% of the full price, OR The cost of any goods you’ve used or kept, OR The pro-rated price of the services you used (if you used a 1 year gym membership for 6 months, you can only be charged half-price) Section 17(3) further states that when you cancel and have a balance with the company, the company must make a refund within 14 days of the cancellation. This is one reason why True Fitness is in legal trouble with its members after deciding to cease operations in Malaysia. Section 17(3) – Consumer Protection Act 1999 “Where the consumer has paid the supplier more money than the supplier is entitled to charge..., the supplier shall refund the extra payment or make a refund available, within fourteen days of cancellation.” Some companies have tried to write a clause in their terms and conditions saying that they reserve the right to keep the full price or that this law doesn’t apply to their package, but the CPA also makes this illegal in Section 6. No requirements made in the Consumer Protection Act can be excluded by companies, else they will be fined up to RM100,000 again (RM200,000 for repeat offences) under Section 145. You can get more info about what types of services are considered future service contracts here. 3. When the quality was not good enough Sometimes, there’ll be that item you buy that breaks soon after you start using it. This was really common with goods that were “Made in China” many years ago which led to a running joke - if it’s low quality, it must be “Made in China”. But you probably didn’t know back then that the law says you can ask for a refund (unfortunately a lot of these were dodgy shops which we probably shouldn’t have trusted). Section 32 of the Consumer Protection Act basically says that when you buy something, the seller automatically promises you that the items you bought are of acceptable quality. Section 32(1) – Consumer Protection Act 1999 “Where goods are supplied to a consumer there shall be implied a guarantee that the goods are of acceptable quality.” The law considers something as of “acceptable quality” by looking at whether the item can function, as well as its appearance, safety, and durability. It also depends on the price and whether any minor defects were brought to your attention. For example, if the shop attendant shows you a pair of leather shoes that are 50% off because there are scratch marks on the leather, it can be considered to be “acceptable quality”. Similarly, a second-hand book will not need to look like a new book to be of “acceptable quality”. Again, it is also illegal under Section 6 of the CPA for the shop to say they “make no guarantees on the quality of items”. If you bought any low quality items, you have the right to ask for compensation, either in the form of an exchange or refund. This is provided for in Section 41 of the CPA. 4. When you were given the wrong items You went to your local shoe store to buy a new pair of shoes on sale. You tried on a few to make sure you get the right size, you even leave room for the thickness of your socks. But after you’ve paid and got home, you find that the shopkeeper gave you shoes 1 size too small! And they say they have a strict no refund policy, so... are you stuck with the wrong shoes? Other than promising acceptable quality, the Consumer Protection Act also says in Section 33 that the seller makes an automatic promise to customers that items sold will be fit for the purpose you ask for. So let’s say you asked for a UK Size 8 shoe, the shopkeeper needs to give you an exchange if they gave you a US Size 8 shoe by mistake. Similarly, if you need an aquarium to put an arowana in, the shopkeeper had better sell you a big enough tank to give that monster of a fish enough room to move in. As you'll see in Section 33(1)(a): “...that the goods are reasonably fit for any particular purpose that the consumer makes known, expressly or by implication, to the supplier as the purpose for which the goods are being acquired by the consumer"" Keep in mind that this only applies to what you actually told the shopkeeper. So if you walked in asking for an aquarium and didn’t say anything about the arowana, the shopkeeper can’t be held responsible if he sells you any ol’ fish tank. 5. Some no refund policies are illegal Some contract terms are so biased that they are considered “unfair contract terms” in law. We used to have no laws for unfair contract terms, but we finally got them through the Consumer Protection (Amendment) Act 2010 (the UK had one since 1977!). These are terms such as those excluding liability for personal injury and death (like if the roof falls on top of your car in a shopping mall). Section 24D of the Consumer Protection Act now makes a contract term illegal if... It’s harsh - Like getting charged 20% interest on your phone bill It’s oppressive - Like saying you have no right to check the expiry date on food items It’s unconscionable - Basically means anything unfair, like lying about product features or having hidden charges The management limits their liability for their mistakes - An example of these is those “park at your own risk” signs and “the management will not be responsible for X” type of clauses. They won’t be responsible if third parties cause damage to you, but if a shop’s staff overcharges your credit card for example, they have to accept full responsibility for it. The management limits their liability for breaching the contract without a good reason - This is a favourite of event organizers. You’ll normally find terms like this on registration forms or tickets saying something along the lines of “The organiser reserves the right to cancel or postpone the event without prior notice. The organiser will not be responsible for any loss or inconvenience caused.” These terms are illegal if they don’t come with proper justification. Coming back to no refund policies, this means that if a no refund policy was for hygiene purposes, it may be a fair term. But if the no refund policy is for items on sale for example, it may be considered oppressive and therefore illegal. According to Section 24i, companies who put unfair terms into a contract can be punished with a fine up to RM250,000 (RM500,000 for repeat offences), and individuals who do it can be fined up to RM100,000 or imprisoned for up to 3 years (RM250,000 or up to 6 years for repeat offences). You can lodge a report or file a claim at… If you run into a dispute with a merchant and are unable to settle it, you can file a complaint with the Domestic Trade, Cooperatives and Consumerism Ministry (KPDNKK) over at this website. You can also file a claim against the merchant with the Tribunal for Consumer Claims Malaysia. The tribunal has specific types of cases it can deal with, so check with them or their information page if you’re unsure of your case."
"Renting in Malaysia? Here are 5 common legal problems you can easily avoid Imagine this scenario. You are a young adult, ready to start your adult-ing life. You excitedly research some homes to rent and you head off to view the properties. After much searching, you finally find your dream home. It is the perfect living space for you to spread your wings as a young, cool adult without emptying out your wallet. Then it is time to sign the tenancy agreement with the landlord. You then fumble and freeze because you are suddenly gripped with a powerful feeling of uncertainty like, “Holy cow. Is this real?” You hesitate at signing because you don’t understand what the contract is talking about and you know from reading our articles that the moment you sign a contract, you would be bound by it regardless of whether you understand it or not. [READ MORE: What happens if you sign a contract without reading it in Malaysia?] So this is where we swoop in again to lend you a helping hand and tell you the 5 things you need to look out for before committing to whole year of renting that place you love through signing a rental (or tenancy) agreement (plus, you can impress the parental units with your adult-ing abilities). 1. Be that overzealous person and inspect everything Maybe some of you are a little shy to inspect all the stuff in the house especially if the agent and the landlord are fluttering over your shoulders, scrutinising your every move. Or maybe you are just eager to sign the document and move into the house or maybe you just think that the friendly agent and landlord wouldn’t dupe you...right? But here is the thing – regardless of whether you are shy, eager, or trusting, it never hurts to inspect the house (and furnishings if it comes furnished) before you sign the contract. There are two main reasons for this. The first is that if, after signing the contract, you realised that some parts (or some furniture) of the house are actually damaged. If you ring up the landlord to repair them, he might actually be able to refuse your request if your contract stipulates that you have conducted a check on the house and found everything to be in a good condition. You might argue that the damage was there before you moved in but since contractual terms are stronger than mere words, you probably wouldn’t be able to rely on that assertion. The contract could also state that you accept the house on an “as-is” basis. An “as-is” basis means that you agree to take the house in its current condition. So it means that if you didn’t realise that the house has a leaky sink because you failed to check out the property, you would not then be able to complain that your landlord gave you a faulty home. The second reason for checking everything before you sign the contract is to ensure that you get the landlord to fix any defects with the property before you move in, saving you on some hassle of dealing with post-moving in repairs. Aside from that, some landlords have actually been known to deduct a certain amount from your first month’s rent in exchange of you taking care of the repairs yourself. For example, if the leaky sink needs RM300 to fix and you spotted this problem before signing the contract, you might be able to negotiate with the landlord to shave off RM300 from your first month’s rent if you fix the leaky sink on your own. Of course, negotiating in this manner after the contract has been signed is not entirely impossible but it would probably be best to do it before a legal contract has been signed. On a side note, if your house comes with “white goods” (which are basically things like a fridge, washing machine, dryer, etc.), you should make sure to test out the appliances before signing the contract and making sure that they are listed down in the inventory which is usually attached to the tenancy agreement. It is also advisable to get your landlord’s confirmation in writing that all the white goods are in a good and working condition. While you are getting his confirmation about the working condition of things in the house, you should also ask the landlord if he would give you some time (usually 2 weeks to a month) to discover any defects in the house and/or furnitures. This grace period works off the basis that it would be rather impossible for you to find out whether the washing machine shrinks your clothes unless you have been using it for awhile. So, this grace period would allow you to test everything in the house well and still have the peace of mind that should something go wrong, your landlord would be able to help you out. This leads us to our next issue of… 2. Covenants are your best friends We don’t mean that making a blood pact is the best thing you could ever do with your landlord (although if both parties are agreeable, why not?). In law, the term “covenant” means a promise made in a contract. Since it is made in a contract, it has more oomph than your normal promises. By oomph, we mean that you can actually be sued for breaking a covenant. The reason why covenants were brought up is because you see them in every tenancy contract. Usually along the lines of, “The Tenant hereby covenants that...” followed by a long list of words that you probably skimmed through because you think that the contract is standard. However, this is where you might want to actually sit down and read what kind of landlord and tenant covenants are found in your contract because it basically tells you the duties and responsibilities that you and your landlord respectively have. Typically, your responsibilities, as a tenant, would include things like: To pay the rent and utilities’ bill at the agreed time. To keep the house and everything in it (this can include things like lights and furniture) in a good condition (with the exception of normal wear and tear). To only use the house for the purposes that you rent it and not for an illegal purpose (so, don’t turn your bachelor pad into a gambling den). To not be a nuisance or cause annoyance to the neighbours (basically, don’t be that neighbour). To not carry out any renovations without the landlord’s permission. For the landlord, their responsibilities would usually include things like: Maintaining a fire insurance for the property. Paying all the necessary charges related to the property such as the quit rent, assessment, maintenance fees etc. Allowing their tenant to enjoy quiet enjoyment of the property if the tenant observes his part of the agreement. This means that the landlord cannot just his set of keys to enter your house without permission. He also doesn’t have the right to demand you to open the house to him without reason. Maintaining the “major” things in the house such as the piping, electrical wirings and any other structural repairs. The covenants that are provided above are just examples which are non-exhaustive and like any other contract, are always subject to negotiations. This leads us to our next point of… 3. Who pays for repairs if something breaks down? You know that you have to pay the rent and the landlord pays all the government taxes but what about when the aircond he provides you with breaks down? Or what if the ceiling suddenly develops a leak? If you live in an apartment or condo, we have covered the issue of leaking ceilings in another article but just to give you a quick recap, to find out who is responsible to repair a leak in the ceiling, you would first have to notify the landlord and the management office of the leak. The management office would then have to conduct investigations to find out what caused the leak in the first place. For cases involving leaking ceilings, the law presumes that the unit above caused the leak and would start their investigations there. If the unit above yours did cause the leak, the owner of the said unit would have to bear the cost of repairs for you. [READ MORE: Living in a Malaysian apartment – who is responsible when things break down?] [READ MORE: Can the condo management really enter my unit and take my property?] However, the situation involving spoilt furniture or a broken down aircond is not as straightforward as the law does not touch on it. Basically, in order to find out who is responsible to make repairs, your contract needs to be looked at. Given that all contracts are negotiable, there is no standard answer as to how who should be responsible for repairing the fixings in the house that you have rented. The only thing to do would be to scrutinise the contract before you sign it and understand what you are signing. If there is no indication of who should pay for repairs, be sure to discuss it with your agent and landlord and have such a term written down in order to avoid any confusion in the future. Aside from figuring out who pays for what repairs, another important question that most renters have is why do they have to pay so many different charges. 4. Deposits and bookings – why and when do you pay them? If you have ever gotten close to renting a home, you would have probably heard the agent throw out words like, “First time payment is RM4,500” and your eyes bulge in horror as you squeak out, “But...the rental is only RM1,000?” This is where you need to know about a lil thing called deposits and booking fees. We will break down what each payment means and when (or if) you can get the payments back. Earnest deposit a.k.a booking fee Some of you might have heard the terms, “earnest deposit” and “booking fee” and think that they are two different payments. Actually, we did some digging around because we were a bit confused too. It turns out that both these terms are used for the same purposes and are essentially interchangeable terms. The earnest deposit/booking fee is generally used to show your interest in renting the place. It usually amounts to half a month’s rent and the amount you paid under this category would be deducted from your first month’s rental. It is widely accepted that once you have paid this deposit, the landlord is not allowed to show the property to any other interested parties or rent them to another person (unless you back out of the deal). It is also an important point to note that the deposit is payable to the agent, who would hold it in trust for the landlord until the contract has been signed and stamped. If you are worried about whether the agent and the housing agency that you are dealing with is bona fide, you can always head over to The Board of Valuers, Appraisers and Estate Agents Malaysia’s website and conduct a search on your agent’s registration number. If you are wondering whether you should pay this deposit directly to the landlord, you can but it is usually not advised to do so. Besides, having a neutral third party to hold on to your money until the contract has been signed and exchanged would bring you greater peace of mind than leaving it with the landlord (we are not saying that all landlords are crooks but it never hurts to be cautious). Aside from that, some of you may have encountered a situation where you were asked to pay the earnest deposit to the agent before he hands you the contract. But are you actually obliged to hand over money before you have never even seen the terms of the contract? As a rule of thumb, earnest deposits are paid after negotiations have been completed. However, this negotiations are typically made orally and would be later included in the tenancy agreement. It is possible that earnest deposits are requested before you are presented with the contract in order to make sure that you do not change your mind after the contract has been drafted and to safeguard the landlord’s interests as well. So while it is not technically illegal to ask you to pay the deposit before you are allowed to view the contract, be very careful about the terms under which you are paying the deposit. Be sure to ask questions such as what happens if the contract does not reflect what you agreed on, how can you get your deposit back, and under what scenarios would you lose your earnest deposit under. Also, be sure to request for a receipt which answers all the questions we mentioned and check that the receipt actually refers to a payment received for a security deposit. It is also advisable to jot down all your negotiations and understandings that you and your landlord have agreed to so that there are no disputes when you finally get the written contract. Security deposit The security deposit usually amounts to two months’ rental and it is payable to the landlord at the same time you sign the tenancy agreement. The contract would tell you what the landlord is allowed to do with the deposit and when he is allowed to forfeit the security deposit. For example, your contract may state that the landlord is allowed to forfeit the deposit if you returned the house to him in a broken down condition (beyond normal wear and tear) and he has to use the deposit to repair his home. Aside from using it for repairs, the contract may also contain terms that allow the landlord to forfeit the deposit if you decide to end your tenancy earlier than agreed upon. Knowing whether your landlord can forfeit your security deposit is a common question that many Malaysians have. However, as we have continuously reiterated throughout the article, a contract is always negotiable. Therefore, there is no one answer fit all for situations like these. It all boils down to reading the contract properly before you sign it and engaging in negotiations with your landlord. Utilities deposit Utilities deposit is used to cover things like the water and electricity bill. It is also payable to the landlord when you sign the contract and it can be used by the landlord to pay off any leftover balance from the bills if you failed to clear them before you move out. A utilities deposit is usually one of the lowest deposit you would pay for. If you return the house to the landlord with all your bills paid up, then you are entitled to get this deposit returned to you. Access card deposit This deposit only applies to houses that require an access card to enter. This would be gated and guarded houses, apartments, or condominiums. It is to cover the costs for a replacement card if you ever leave the property without returning the card to the owner. 5. Can my landlord “simply” increase my rent? You may have been caught in that situation where you have been living happily in your rented home for 6 months and suddenly your landlord decides to increase the rent by 50%. You roll over in horror because an increase in 50% would mean that you would have to eat Maggi noodles for half a month and bread for the other half. The question then becomes, can they actually do this? If your contract provides for it, then the answer is yes. This is where reading the contract is important again (yes, this writer is very aware that this article is taking on a nagging voice but this is important, guys). A properly worded term to allow for rent increase should tell you a few things: When the landlord is allowed to increase the rent (is it during the agreed term or only if you want to renew the contract) How much can the landlord increase the rent by (this can come in the form of caps such as a 15% cap from your current amount) If the contract does not provide for a rental increase term, then make sure you put one in before signing the agreement. Rent increases can also happen when you choose to renew your tenancy for another term (this can be referred to as a 1+1 contract i.e one year of tenancy which can be renewed for another year). Such clauses are known as options to renew and have covered this in another article alongside other clauses that you need to know about in a tenancy agreement. [READ MORE: 5 important clauses you need to look out for in a Malaysian tenancy agreement] The final message is always read before you sign We know that we have reiterated this point over and over again but we cannot stress on how important this is. Contracts are always negotiable and the burden lies on you to make sure that you get the best deal and to always know what you are getting into. A parting note to leave you with is whether you need a lawyer for tenancy agreements. The agents usually provide you with a contract themselves so it is not strictly necessary to look for a lawyer to vet through your agreement but with that being said, you need to make sure that the contract is drafted properly as there have been cases brought to court where certain clauses such as an option to renew clause was not enforceable because it was not drafted properly (we covered this in the article on important clauses that we linked above but if you are lazy to scroll up, we got you covered. Just click here). A pro-tip for making sure that the terms wouldn’t run into problems in court is to make sure that they are not left vague. For example, if you are looking at a term for rental increase, don’t end with, “...at a rate to be mutually agreed...” as that is void for uncertainty under s. 30 Contracts Act 1950 and through the UK case of King’s Motors (Oxford) Ltd. v Lax: “Agreements, the meaning of which is not certain, or capable of being made certain, are void.” Now that you are armed with all the knowledge above, go ye forth into the world and be a savvy renter."
"How to take Malaysia's government to court if they mess up? This article was written for the dilemma that the TTDI residents faced but it can also be used for the residents of Penang as they are currently in the midst of appealing the development plan for four 40 storeys tall apartment blocks after the recent Tanjung Bungah landslide. The cause of the landslide is still under investigation. Have you ever been mad at the Malaysian government for something? Maybe you were mad over the unfixed, months-old potholes that loiter the road outside your house. Or maybe you were mad that a government department rejected your application for no reason. Or you were mad because you felt like they exceeded the powers that were given to them, like in the case of Lina Joy who contested that the National Registration Department had no power to question whether or not she has been confirmed to have left Islam by the Syariah courts. Or maybe you were mad because the government decided to build houses in your favorite park. The residents of Taman Tun Dr Ismail have recently brought a case against the Mayor of Kuala Lumpur and DBKL for their proposed housing development project in Taman Rimba Kiara. Basically, what the residents of TTDI are protesting is the fact that DBKL has approved the development plan to build not only about 1,800 units of apartments but also a whole bunch of new highways. The Federal Territories Minister, Tengku Adnan has stated, earlier on in May, that the project would go on regardless of any protests. The residents are pretty upset because apparently the proposed developments would cut into a huge part of the existing Taman Rimba Kiara and it goes against the initial plans in DBKL’s 2020 plan. We managed to speak to some residents from TTDI and they told us that they have decided to take the issue to court. Leon Koay explains to us why they chose to do so: ”This action is for the public park, which is open for the enjoyment of everyone. It is symbolic of the challenge to make life liveable, in the middle of our bustling city. It is about preserving the carefully cultivated flora and the rare species of fauna that chose to make Taman Rimba Kiara their home, such as the wild hornbills.” – Leon Koay, Committee Coordinator, Save Taman Rimba Kiara Working Group and 14-year TTDI resident. The action that they have decided to take is called a judicial review action. If you are wondering what is exactly is this judicial review and the superpowers it has to hold the government responsible, keep on reading. We do have to warn you that the process for judicial review is complicated and this article would be a long one. So, you might want to grab some cookies before you tackle this. What you need to know first is that the government is actually divided into three branches Eh wait. What do you mean divided into three? Isn’t it just made up of the government and the opposition? Well, yes. Members of the ruling government party and the opposition party do make up the government but the government that we view as single entity is actually divided into three different branches of government. The three branches are the executive, the legislature, and the judiciary. Basically the executive arm carries out and administers laws which are passed by the legislature. The executive in Malaysia consists of members of the Cabinet, led by the Prime Minister and the Council of Rulers, including the Yang di-Pertuan Agong. On the other hand, the legislature is in charge of passing laws in Malaysia and consist of the two Houses in Parliament, the Dewan Rakyat (House of Representatives) and Dewan Negara (Senate). The judiciary, on the other hand, is meant to interpret the law and uphold the rule of law (this is a very abstract concept with many different theories but the rule of law, in its simplest form, means to uphold justice). The reason why there are three branches of government is to ensure the separation of powers. This means that the existence of the three branches of government is meant to ensure that no one person or body ever has the absolute power to do anything (because that would lead to an tyrannical system). However, because the separation of powers is not perfect (for example, members of the legislature also sit in the executive), there exists a system of checks and balances. This is where judicial review comes in. Judicial review is the process where the judiciary checks on the legality of the government’s (executive) actions. This means that the courts will not look at the reasons why the government acted in that way but they would only look at whether the decision-making process was done in a legal way. Judicial review is different from appealing your case because you actually have to satisfy certain requirements and adhere to proper procedures before you are able to bring a judicial review case. The first thing you need to know about a judicial review is… There is a particular way to bring a judicial review action The rules governing how a judicial review action can be brought are numerous but we will deal with this briefly just to give you guys a general idea. Order 53 of the Rules of Court 2012 governs applications for judicial reviews. Basically, among other things, in order to proceed with a judicial review application, you need to first gain leave (permission) from the High Court. The application for judicial review must also be brought within 3 months from the date you first had reason to bring a judicial review action (Order 53, Rule 3(6)). The part which we want to focus on can be found in Order 53, Rule 2(4): “Any person who is adversely affected by the decision of any public authority shall be entitled to make the application.” Er. What does adversely affected mean? Does this mean that if you got a shock from watching your neighbour crash his car into the other neighbour’s house, would you be “adversely affected”? Not really, but to explain this, we need to look at something called a locus standi. You must have a “standing” to bring an action Locus standi is not a fancy word for locusts nor is it a word to describe how to get a new stand (this writer is fresh out of good jokes due to sleep deprivation). In its simplest form, locus standi means the right to bring a case or an action. If you are confused because you think that everyone has the right to access the court system, you are NOT wrong. Everyone has the right to access the court system but locus standi is meant to ensure that the system is not abused through claims brought in by people who have no interest in the case. For an example of how locus standi works, imagine this scenario. If you decided to bring a case against your neighbour for crashing his car against another neighbour’s house, you would most definitely get your case thrown out of court simply because you have no interest in the matter (it was not your car or your house). But how do you know if you have legal standing to bring the case against the government when generally, the government’s decisions affect everyone? This is where the Federal Court case of Malaysian Trade Union Congress & 13 Ors v Menteri Tenaga, Air dan Komunikasi & Anor (which is actually a major groundbreaking case in Malaysia but we won’t bore you with legal history) needs to be looked at. To state the facts of the case briefly, the case was brought by the Malaysian Trade Union Congress (“MTUC”) after their request for SYABAS’ documents concerning the increase in water tariffs was rejected by the Minister in charge. The Federal Court (which is essentially the Yoda of Malaysian Courts) then decided that in order to pass the “adversely affected” test, you would have to prove that you have a real and genuine interest in the subject matter. Okay. We are aware that we just replaced one weird English phrase with another longer weird lawyer speak. What “real and genuine interest” basically means is that all you have to prove to the courts is that the matter relates to you in some way. For example, if the government declares that all motorcycle riders cannot be on the road during peak hours, the decision affects all motorcyclists and if you are a motorcyclist, you would have a real and genuine interest in such a ruling. Assuming you have the locus standi (impress your friends with this Latin phrase), now you have to decide which grounds of judicial review you would want to take an action under. Basically, the government cannot be too “over” in what they do As mentioned above, judicial review is looking at the legality of the government’s actions but not the reason why they came to that decision in the first place. With this being said, basically judicial review steps in when the government has, for the ease of explanation, gone bonkers in their actions. This is why there are four grounds for judicial review. They are: 1. Illegality This is where the government’s actions breaks the law, such as the Federal Constitution or the any Acts of Parliament. For example, the new Insolvency Act 1967 states you can be discharged from bankruptcy after 3 years if you fulfil the two requirements. So, if the Director General of Insolvency refuses to release you from bankruptcy even after you have fulfilled the two requirements, then you might have a ground for judicial review. [READ MORE: 5 new changes to Malaysia’s bankruptcy laws that makes it harder for you to become a bankrupt] 2. Wednesbury unreasonableness (a.k.a irrationality) This ground came from the UK case of Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] and was reiterated in another famous case, Council for Civil Service Unions v Minister for Civil Service, where the judge essentially stated that irrationality can be relied on when the government has acted in a way that makes even your local kopitiam uncle recoil in horror because it just doesn’t make sense. Lord Diplock puts it in a nicer way than we do (ah, the English gentleman): “So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” – Lord Diplock, Council for Civil Service Unions v Minister for Civil Service An example of an unreasonable decision given by the courts include where a red-haired teacher is fired for having red hair. 3. Procedural impropriety This is where the government’s decision-making process was tainted with unfairness or that it breached the principles of natural justice (this basically means the rule against bias – nemo judex in causa sua and the right to a fair hearing – audi alteram partem). An example of this would be where a government official decides to award a tender to their family member purely because they are related and not based on the proper procedures set out by the government such as opening up the tender process to the public. 4. Proportionality Proportionality is basically where the government is not allowed to take extreme methods in carrying out and administering the law. For example, if you are caught disseminating insults about our Yang di-Pertuan Agong, the government would probably have the right to seize your electronics to assist in their investigation but they are probably not allowed to seize your entire house. If you succeed in your claim, you can stick it to the man We don’t mean that you get to march up to Parliament when they are in session and literally uh, throw a stick at the minister (Please don’t). What we mean is that a successful judicial review action will get awarded with remedies that are meant to rectify the situation at hand. This is unlike normal civil suits such as breach of contract where you would usually get a remedy of damages (such as monetary compensation). The remedies that can be awarded are as follows: 1. Declaration A declaration is basically where the court just declares what rights each party has. This is one of the simpler forms of remedies that the court can award as it technically has no force of application. It would not change the government’s decision unlike the other remedies but it clarifies the position of each party and hopes that the parties involved would act in accordance with their rights and not exceed them. Basically, this is where the court states what the law is and it is done with the belief that the government would not act in a manner that goes against the law. It like you going to your dad because your brother stole your toy car and he just “declares” that the toy car is yours but he doesn’t ask your brother to give it back to you (maybe he just evil eyes your brother until he hands your toy car back but doesn’t demand it from him). 2. Order of certiorari (a.k.a the quashing order) Ignoring the fancy Latin, to quash something basically means to invalidate the government’s decision (this writer remembers it by equating “quashing” to “squashing” – the court “squashes” the government’s decision and the government can no longer act that way). Once a decision has been squashed quashed, the matter would basically go back to the relevant authority for them to decide on the matter again (this time, in accordance with the law). Coincidentally, this is what the TTDI residents are seeking for in relation to the proposed development of Taman Rimba Kiara as DBKL has issued a development order for the park in question. An example of this is where you ask your aunt if you can catch a midnight screening of Kingsman 2 and she says yes but your parents find out and drag you home. Your parents’ decision has invalidated your aunt’s. 3. Order of mandamus This order is used when the government was supposed to do something but they failed to do it. For example, if they were supposed to gazette a certain law but failed to do so, an order of mandamus would compel them to do it. Basically, this order is meant to make the government carry out the duties they were supposed to. To put it into every day context, an order of mandamus is like a mother tearing her children a new one for failing to complete their household chores. The mother’s rage (order of mandamus) compels the children (government) to complete their chores (government’s duty). 4. Order of prohibition An order of prohibition is basically an order that stops the government from doing something. It is like its name states; it prohibits the government from acting in the way that resulted in a judicial review. It is essentially you playing games until the crack of dawn every day and when your parents find out about it, you get a whooping prohibited from playing until the sun rises. 5. Quo warranto This is an order to force the government to show their authority for doing what they are doing. So, if the government alleges that some law or some order from the Yang di-Pertuan Agong allowed them to act in a certain way, they must produce this piece of document conferring authority. It is like you hotly demanding that someone else took your seat in the cinema and they produce their ticket to prove their “authority” for being there. You then have to slink away in shame. Does this mean that I can bring an action for whenever I want? Well, if you feel that the government has acted in a way that allows you a ground for judicial review and that you have locus standi, you can always engage a lawyer to start the proceedings for you. However, the process for judicial review can be long and tedious as there are many hurdles to overcome. So, it might be best for you to attempt other methods of resolution first. The residents of TTDI only decided on a judicial review action because they felt like they have no other avenues. Further, if you think that a judicial review action can only be brought by the rich (because you have the perception that TTDI is full of bigwigs that can’t be messed with), some of the residents of TTDI told us why they were bringing this action in the first place: ”When we used to talk about “balik kampung”, we used to talk about going home to other states but for our children, when they speak of “balik kampung”, it is right here in TTDI. This action has been called politically motivated but we are not associated with any politicians. It is an action by the community, for the community. TTDI is our home and we wish to ensure that any developments that are carried out are done so in a responsible manner. And taking an already designated public park to make way for a condominium development is a very irresponsible thing to do.” – Abdul Hafiz Abu Bakar, Chairman, Taman Tun Dr Ismail Residents’ Association and 30-year TTDI resident. So, there you have it, folks. The governance in Malaysia consists of a system of checks and balances to ensure that everyone acts responsibly because, as Spiderman’s uncle famously said, “With great power comes great responsibility”."
"Can Malaysian plainclothes police stop or arrest you? We all generally accept that if uniformed police stop you and ask to see your identification, we should cooperate. But what if we are stopped by people in plainclothes who claim they are policemen? Some members of the Malaysian public are concerned about these fake policemen. All the more because apparently, it only costs about RM2000 to get the gear (assuming you have a matching car) you need to pose as a uniformed police officer. There have already been multiple incidents of posers misusing the police uniform. Plainclothes policemen can still use their authority, but need to identify themselves in order to do so. Whether they are in uniform or plainclothes, there are 2 main ways to verify if someone is really a member of the PDRM. 1. Ask for their authority card Also known as their “kad kuasa”, all members of the PDRM have an authority card, which comes in 4 different colours to show their rank. Without this card, police officers are not empowered to act, and are considered ordinary citizens. You might be stopped by police on the street time to time, not just in your car; so it’s important that you can check that the person stopping you is really a member of the police force. Image from Lowyat forum Image from Lowyat forum user Raymond T Red: This police officer is legit, but they’re also suspended, so they have no authority. You can safely walk (or run?) away from them. Blue: Police officer of rank Inspector or above. Yellow: Police officer of rank below Inspector. White: Reserve police. If you are stopped by a plainclothes policeman, they need to show you their identification. Even if you are stopped by a uniformed policeman, you are still allowed to ask to see their authority card (please ask nicely). If they fail to produce their authority card (or maybe make a few excuses), you should call the real police immediately. Image from Says Police officers also wear their name and ID number on their uniform, so if the officer who stopped you does not have a name and ID, that could be a sign that something fishy is going on, and you should notify the real police. 2. Call your local police station, or drive there Image from Says If you feel unsafe winding down the window or you can’t ask the police officer for their authority card for any reason, you can also check with your local police station if the police officer is registered and whether they are on-duty at that time. You can find the contact details of your area’s police station at the PDRM’s official website here. A prudent measure if you get pulled over by plainclothes police is to tell them you’ll drive to the the nearest police station. Ask them to follow you to the nearest police station and drive there. Be careful about blindly following the “police” car if you cannot confirm them because a fake may lead you elsewhere instead... You CAN ask the police for ID too They say ""minta IC"", you say ""minta ID"". Image from themalaymail Whether a policeman is in uniform or plainclothes, they still have the same powers given to them through their authority card. Plainclothes police still need to identify themselves before using that power. It may be a little trickier to verify plainclothes policemen, but at least now you know you have the right to ask the police for identification too. Always take note of these three things when you get stopped by a police officer: Their name Their ID Their vehicle license plate number This helps when it comes to reporting any imposters who give the PDRM a bad name, or even in cases where a police officer abuses their power. According to Section 89 of the Police Act 1967, it’s illegal for civilians to own items like police badges and uniform that identify a person as a police officer. It is also a crime to impersonate a police officer under Section 170 of the Penal Code, which carries up to 2 years jail time and a fine as punishment. If you want to know more about your rights when it comes to the Malaysian police, the Malaysian Bar Council has a Red Book which tells you what rights you have, from if you are stopped by the police, down to being arrested. You can find both the Bahasa Melayu and English versions at this website."
"6 common things (some) Malaysian pet owners do - that are actually illegal!  Note: This article was originally published in 2019. The recent coming into force of the Animal Welfare Act 2015 was a huge step forward for animals all over Malaysia, particularly those that have a higher tendency of finding themselves in the care of humans. The act establishes a protective shield for animals in our country by combating their abuse, and by guaranteeing that their welfare needs – as illustrated in the title of the act – are met sufficiently in the eyes of the law. However, did you know that, since the 50’s, there were already laws in place concerning Malaysian animals – and more specifically, their owners? These laws continue to play a vital role today in ascertaining that animal owners in Malaysia are held responsible for their own actions and those of the animals under their care. Wait, did you say a whole legal act for me and my friends? Image Credit: Funny Vines YouTube If you are a Malaysian animal owner who does not know this, you should pay extra attention to the list that follows – because you might unknowingly get yourself into hot soup by doing any of these 6 things and breaking the law! 1. Allowing your dog to run at people, cars, or other animals Law: Section 6 of the Minor Offences Act 1955 – Dog running at persons, etc. (In part): “… any dog is in the habit of running at persons or at vehicles, horses, cattle, sheep, goats or pigs passing along a public road, the owner of such dog shall be liable to a fine...” Penalty: A maximum fine of RM100. The importance of training and guiding dogs that are kept as pets should never be underestimated or taken for granted. After all, it is through training that dogs form their habits – and if they take up bad or potentially dangerous ones, the results could be horrific. And of course, measures to ensure that the dog doesn’t leave your home compound are equally as important. Dog owners in serious trouble is when they fail to take proper steps to ensure that their dog doesn’t run at someone (or something). If a dog is found to have latched onto the habit of running at people, vehicles and a few types of livestock – especially when these subjects are passing through public roads – the owner of the dog in question will be fined accordingly. 2. Allowing your dogs to injure others Law: Section 7(1) of the Minor Offences Act 1955 – Liability of dog owner (In part): The owner of every dog which shall cause injury to any person shall be liable to a fine … Penalty: A maximum fine of RM50.00, and compensation to the injured party of a maximum of RM100 This may seem like a fairly evident law; one that does not have to be included in this list. But did you know that your dog does not have to have a history of violent tendencies to be charged with an offence under this law? Section 7(2) of the Minor Offences Act 1955 specifies that it is not compulsory or necessary for dog owners to prove that their dogs have vicious tendencies when their dogs injure other people, nor is it a requirement for them to prove that they have knowledge of such tendencies. Even if it is a first-time incident involving your dog acting out of character, each individual case in which a dog injures another person is an offence against the law. It’s also important to note that these incidents sometimes result in death. One such case is Le Roq, a Rottweiler which fatally attacked a grandmother in 1994. The owner was fined and Le Roq was ordered to be put to sleep, although a lawyer managed to convince the court to let Le Roq be used as a police dog instead. Don’t worry though, Section 7(4) to 7(6) lays down exceptions where neither you nor your dog will get in trouble if Fido bites someone trespassing into your property or is in the middle of a criminal act. 3. Allowing animals on public roads at night Law: Section 10(1) of the Minor Offences Act 1955 – Animals led or driven on a public road at night (In part): No horses, cattle, sheep, goats or pigs shall be led or driven on any public road between the hours of sunset and sunrise unless such animals are in charge of at least one adult person carrying a light visible within a reasonable distance both in the direction in which such animals are being led or driven and in the reverse direction. Penalty: A maximum fine of RM100 This particular point deals specifically with 5 larger animals – horses, sheep, cattle, pigs, and goats – which can be harder to control due to their sizes and their preference for travelling in herds. As such, the law requires stricter supervision of these beings by their owners, especially at night. Section 10 of the Minor Offences Act 1955 illustrates this, explaining that these 5 animals are not allowed on public roads between sunset and sunrise, unless specific conditions are followed as explained in the quote from the law above. 4. Using your dog to instill fear or threaten others Law: Section 8 of the Minor Offences Act 1955 – Letting loose dog or other animal (In part): Any person who without lawful excuse sets on or urges any dog or other animal to attack, worry or put in fear any person or animal, shall be liable to a fine … Penalty: A maximum fine of RM100 This may look like a fairly cool thing to do in movies. Train your dogs as agents of fear, and use them to threaten those that cross you – a common maneuver by villains in action or horror flicks. Game Of Thrones fans, remember this particular villain and his fondness for hounds? Image Credit: Game of Thrones Wiki Trying it in Malaysia, however, can get you in a patch of trouble. Section 8 of the Minor Offences Act 1955 tells us that using your dog to make someone worry or feel afraid is illegal, in the same manner that urging your dog to attack someone is a violation of the law unless there is a lawful reason to do so. 5. Allowing animals to damage property Law: Section 9 of the Minor Offences Act 1955 – Animals damaging property (In part): … allows such animal to stray upon any public road or upon any public or private property shall be liable to a fine … Penalty: A maximum fine of RM100 and compensation for damages incurred by the animals under your care. In similar fashion to item number 3 on this list, this point deals with the 5 larger animals that are horses, cattle, sheep, goats and pigs. The Minor Offences Act 1955 relays through Section 9 that if any of these 5 animals are found straying on their own on public roads, public property or private property, their owners will be given penalties. In the event that these animals also damage the said property or road, compensation will be required from the owners as well, based on assessments of the damages by a magistrate. 6. Bathing your animals (or yourself) in public Law: Section 15(1b) of the Minor Offences Act 1955 – Bathing in public (In part): “...bathes or washes himself, or any other person, animal or thing on any public road, or in or by the side of any public tank, reservoir, standpipe, watercourse or stream, the use of which for bathing has been forbidden...” Penalty: A maximum fine of RM100 Through what is arguably the most unique point on this list, we would like to reveal that in Malaysia, you are legally not permitted to bathe your animals in or near water sources – as specified in the quote from the law above – that the public has access to, nor on public roads. This is especially the case if the use of such a water source for bathing is explicitly forbidden by the authorites. But these aren’t the ONLY laws that you can get in trouble for! If you’re wondering why the penalties are so low, do bear in mind that these laws are really old – RM100 back in the 50’s is worth a lot more than it is today! Not just that, if something bad happened because of your negligence with your pet, the victim can also sue you under tort law (aka a lawsuit); which would probably cost you a lot more. [READ MORE: What is Tort Law?] If anything, this list should demonstrate that at the end of the day, looking after animals is no easy feat – be it in terms of the welfare of these animals or from the perspective of the law. It is a responsibility that should be taken seriously, no matter how small an animal may be. After all, recklessness when caring for animals may not only endanger their lives, but also those of other animals and people around you. It would also help to keep in mind that these laws will not be replaced by the Animal Welfare Act 2015 or the Animals Act 1953, and that all 3 will work in tandem to safeguard the future of animals (and people) in Malaysia. [READ MORE: Animal abusers in Malaysia can get in BIG trouble with this new law!]"
"Can you lose your job due to mental illness in Malaysia?  THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect ASKLEGAL's position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article as it has not been verified by a practicing lawyer. by Dr. Chua Sook Ning | sookning@relate.com.my | Relate Malaysia What are your mental health rights in Malaysia? Which laws are relevant? There is one main mental health law in Malaysia- The Mental Health Act 2001. Essentially this law addresses lawful detention of an individual who lacks the mental capacity to make an informed decision. It also protects the said individual from abuse or mistreatment. What if you have the mental capacity to make informed decisions? You may have some legal recourse under the Persons with Disabilities Act 2008. This Act defines “persons with disabilities” as those who have long term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society. Note, that the mental impairment needs to be long-term. Under this Act, reasonable accommodation and rehabilitation programs are to be provided to persons with disabilities to enable you to have a positive quality of life and well-being. While there may be certain services that are open to you, this Act is silent on discrimination against persons with a mental health condition (past or present). Unlike countries such as US, UK and Australia, there are no anti-discrimination laws in Malaysia that protects the rights of individuals with a mental health condition What is discrimination? The two main forms of discrimination are: Direct discrimination – which is when you are treated worse than other people because of your mental illness. An example of direct discrimination would be if you were refused enrolment in an education course because you have a mental illness, or are refused insurance coverage because of a history of mental illness. Indirect discrimination – which is when there is a rule, term or condition that is applied generally but which has the effect of excluding a person with a mental illness because of their illness. An example of indirect discrimination would be if an accommodation service had a rule that all residents have to have vacated their room by 8:00am each morning and you have serious difficulty doing this because you are on medication that makes it difficult for you to get up early enough in the morning. Do you need to disclose your mental health history to your employer given the lack of protection? This depends on the contract that you signed with your employer. Employers usually ask potential employees to disclose pre-existing conditions which may have implications for job performance. This implies that a past depressive episode which you have fully recovered from may not need to be disclosed, but a current depressive episode should be disclosed. In other words, as long as you still meet diagnostic criteria for a mental illness, disclosure of the mental illness is warranted. Can you lose your job over your mental illness? The Employment Act 1955 (EA 1955) Section 10 stipulates that the employer is supposed to state the conditions under which services may be terminated. Therefore, it may be in your contract that the employer reserves the right to terminated services in cases where the employee is discovered to be suffering from any form of mental or physical illness that has the potential of limiting the performance of the employee in the workforce. If the contract is terminated without prior notice because of physical and/or mental illness, the employee is to be paid a specified amount for compensation as stated in the contract (EA 1955 Section 12 and 13). However, if the employee is unable to meet expectations laid out in the contract agreement, the employer has the right to dismiss without notice (EA 1955, Section 14). Please note that if an employee decides not to go to work for two consecutive days because of illness (physical and mental) and doesn’t communicate such absenteeism, then your employer has the right to dismiss under jus naturale. Therefore, if the employee is not able to meet the expectation in line with the contract agreement, the employer has the right to dismiss without notice. This is because, the employee has already violated the contract terms that are contained in the employment contract. It appears that EA 1955 tends to favour the employer rather than the employee. However, you may have some legal options to request for reasonable accommodation due to your mental health condition. Unfortunately, the laws in Malaysia do not protect you from being bullied or harassed because of your mental health, or from being fired if your employer can show that your performance is curtailed by your illness. A major problem with this definition is that for many mental illnesses, impairment in occupational functioning is one of the diagnostic criterions. That means, by definition, job performance will be negatively affected by a mental illness. While there are not many legal options open to individuals who have a mental health condition, it is best to carefully examine your employment contract and go to a Legal Aid Clinic or a lawyer to discuss your particularly situation and what is the next step you should take. Notes on the Persons with Disabilities Act 2008 “Reasonable accommodation” means necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise of the quality of life and wellbeing on an equal basis with persons without disabilities; “rehabilitation” refers to a process aimed at enabling persons with disabilities to attain and maintain their full physical, mental, social and vocational ability and full inclusion and participation in all aspects of life. In 2010, the Bar Council Human Rights Committee (“BCHRC”) organised the Forum on the Persons with Disabilities Act 2008 which was held at the Bar Council Auditorium. One of the speakers of the forum, Zakaria Yahya, was a visually-impaired teacher from Sekolah Menengah Pendidikan Khas, Setapak, Kuala Lumpur. He urged for a united cause to spread awareness regarding the effect and legal implications of the 2008 Act, be it whether among the general public or the community of persons with disabilities. Dr Tiun Ling Ta, the President of Persatuan Orang Cacat Anggota Malaysia, pointed out that the Federal Constitution specifically prohibits discrimination on the grounds of religion, race, descent, place of birth and gender. However discrimination against persons with disabilities was surprisingly omitted. Dr Tiun pointed out further that unfortunately, the recognition for rights of persons with disabilities in Malaysia is seems to come from a charity-influenced intention rather than an inherent right. The Act does not provide any clause for anti-discrimination but only “appeal” to the authorities, bearing words such as merayu, meminta izin and hendaklah. The scene that is set for this Act seems to merely be advisory rather than enforcing; in comparison to the execution of the National Service Act, where students face penalties for failing to report for training. Relate is crowdfunding to provide free mental health screenings in English and Bahasa Malaysia. If you’d like to donate, please click this link for more information. Dr. Chua Sook Ning is the founder of Relate Malaysia - a community organization which aims to emphasize the importance of mental health as part of well-being; to decrease the stigma of mental illness; promote prevention and early intervention; develop effective, evidence based and accessible interventions; and encourage the establishment of community support and services for all who need them. She can be reached at sookning@relate.com.my \Legal aspects of this article is supported by Low Win Li, a law student who completed an internship with YB Hannah Yeoh."
"Is it legal to cycle on Malaysian highways? Back in early September 2017, there was an incident on the LATAR highway where 4 paralympian bikers training for the ASEAN Paralympic Games were injured in what looked like a hit-and-run. The driver who turned himself in was later charged under Section 43 of the Road Transport Act 1987 for careless driving. More recently, a group of cyclists on a highway in Seremban became viral, after pictures of them were shared on the Negeri Sembilan kini Facebook page. These incidents have caused some people to question if the cyclists were not supposed to be cycling on the highway in the first place. So are bicycles even allowed to cycle on the highway? It's not a crime to cycle on highways Currently, the Road Transport Department (JPJ) can’t stop cyclists from using the highway. Because cyclists don’t pay road tax, they are out of JPJ’s scope of authority. According to JPJ director-general Shaharuddin Khalid: bicycles are not in the list of taxable vehicles that should be on the roads. Therefore, enforcement does not fall under JPJ. – Datuk Seri Shaharuddin Khalid, as quoted by The Star. However, our laws do advise cyclists from doing so. The Malaysian Highway Code says under Rule 66 that cyclists should avoid highways (emphasis added):- 66. Always seek and use the safest route. Keep out of heavy traffic as much as possible. Avoid highways in particular, and fast traffic in general. The Code also mentions that as the second slowest road user, cyclists need to be extra careful and one of the ways to stay safe is to avoid roads where other vehicles travel at high speeds, like highways. This rule doesn’t make it a crime to cycle on the highway, but Section 68(3) provides that if you break the rules, it can be used against you in any court proceedings. This would also mean a driver who knocked you over could end up walking free by placing the fault on you instead. If you were just wondering whether it's now okay for cyclists to ride out onto the highway and weave back and forth, actually they can't. Depending on how you were riding your bike and what conditions you were riding under, you might even run into problems with the law because… Driving laws also apply to cyclists Section 54 of the Road Transport Act 1987 provides that laws against dangerous driving, careless driving, and even drunk driving also apply to cyclists! Whether someone was driving ""dangerously"" or ""carelessly"" depends on the specifics of the situation, ""including the nature, condition and size of the road and the amount of traffic which is or might be expected to be on the road"". For example, driving a car at 100km/h in the fast lane might be normal, but driving at the same speed on a winding road will be considered dangerous driving. Dangerous driving (Section 42) and careless driving (Section 43) are also defined differently, which are in short: Dangerous driving – Driving recklessly or at a speed/in a way that endangers the public Careless driving – Driving without due care and attention, or without consideration for others on the road How to differentiate the two? As an example, if you suddenly change lanes without signalling – that may be considered dangerous driving because you are endangering yourself and others; but if you hog two lanes in the middle of the highway you might be charged with careless driving because it's inconsiderate. Since it's dangerous for bicycles to be on highways, they could be charged for dangerous or careless driving. It is okay to ride in the emergency lane? What if it's only in the left lane? It's difficult to say exactly at what point riding bicycles on the highway will be considered dangerous or careless driving, but each case will depend on exactly what happened. If you actually dared to ride a bicycle out on a highway and end up actually getting charged in court for it, the fact that you rode out onto a dangerous road will be taken into consideration to prove that you were ""driving recklessly"". Cycling groups can make arrangements with the authorities to use highways Most people would agree that even if they were allowed to cycle on the highway, they wouldn’t do it because it’s dangerous. But there may be some cycling groups who want to do so for certain reasons. According to The Star, Transport Minister Datuk Seri Liow Tiong Lai has said that these groups should apply to local authorities and the police before using the highway. This was a reminder in response to an incident in Johor where 16 teenagers were riding illegally modified bicycles at night and got mowed down by a car. “We also urge cycling groups who want to use highways to apply to the local authorities and police to help so that the safety of their convoy is taken care of,” – Datuk Seri Liow Tiong Lai, as quoted by The Star The authorities can make arrangements like setting up barriers to make it safer for cyclists who wish to use the highway. So it's more than just following the rules, they can help keep you safe as well. Some higher-profile arrangements have been done before such as when the LEKAS highway was closed to accommodate the RHB Shimano Highway Ride@LEKAS 2017. There are other good biking routes in Malaysia to enjoy If the highway isn't appealing to you but you're still looking for bike routes to use, check out these lists by The Star and Says for cycling spots in Malaysia which you might enjoy. Some of them are very scenic and close to nature, not to mention safe and legal. After all, when there's a wheel, there's a way!"
"How are incest laws in Malaysia related to statutory rape? Malaysian has seen a recent spate in incest and rape cases. For some example, Malaysians were horrified when a father was charged for multiple accounts of raping and committing incest on his 15 year old daughter. When we barely recovered from the appalling nature of that case, we were hit with another case of four family members committing incest on two sisters in Kota Samarahan. In the middle of the year, an 18 year old youth was also arrested for raping his eight year old sister in Sungai Petani. Most recently, police arrested a 23 year old man under the suspicion of rape after receiving reports that a mother prostituted her 14 year old daughter to him. But this is where the plot thickens...the man claims that he did not rape her because he realised that she is his...niece! Amidst all the revulsion and shock expressed by Malaysians, some were confused about why the terms “rape” and “incest” were used interchangeably in charging and convicting these offenders. Some were also puzzled as to why they were charged with both incest and rape. Therefore, this article aims to clarify that confusion by laying out the legal definitions for statutory rape and incest. Given the nature of the cases mentioned above, this article would focus specifically on statutory rape and incest as the 7 scenarios for rape in Malaysian law has been covered in a separate article. [READ MORE: 7 rape scenarios found in Malaysian law that you probably didn’t know about] So, let’s break down what statutory rape is before looking at incest. In order to keep this article short, the following points are a general overview of what you need to know and other issues such as the technicalities of consent will be dealt with in a separate article. What does statutory rape mean? Isn’t it just “normal” rape? The thing you need to note about rape is that the crucial factor is consent. However, the thing you need to note about statutory rape is that the crucial factor is age. This means that for statutory rape, regardless of whether the girl (under 16 years old) consents to sexual intercourse, you can still be charged for rape because age is the crucial factor and not consent. Take deep breaths and follow us down this rabbit hole because that scenario is commonly referred to as statutory rape. The Penal Code reads as follows: Section 375 (in part) Penal Code: “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions... (g) with or without her consent, when she is under sixteen years of age.” Statutory rape happens when a man sleeps with a woman who is below the age of 16. If you are puzzled over why consent is disregarded when a woman is below the age of 16, it is because the law presumes that children are unable to give proper consent and that they are the more vulnerable members of society which are open to exploitation. While there are arguments against statutory rape laws such as how age is not a denominator for maturity, this article would not bring you down that rabbit hole but instead focus on the more practical question of who can be guilty of statutory rape? What if it was a couple where both parties are below 16 years old? We were not able to find any case law on this contention but a strict reading of the Penal Code would mean that even if the offender is below the age of 16, he could be guilty of statutory rape as well. This means that a sexually active teenage couple could actually be committing a crime. This law may differ from other countries such as the US where certain states look at the age gap between the parties. In terms of punishments, we can look at section 376 of the Penal Code. The punishment for statutory rape differs for situations with consent and without consent. Typically, the punishment for statutory rape is up to 20 years in prison and the offender is also liable to whipping. However, if there was no consent, the punishment is raised to at least 10 years’ imprisonment (the maximum number of years would be 30 years’ imprisonment) and whipping. Another important point to note is if the female is under 12 years of age, the punishment is still a minimum of 10 years’ imprisonment (with a maximum of 30 years’ imprisonment) and whipping regardless of whether or not there was consent. Section 376 (in part) Penal Code: (1) Subject to subsections (2), (3) and (4), whoever commits rape shall be punished with * imprisonment for a term which may extend to twenty years, and shall also be liable to whipping. (2) Whoever commits rape on a woman under any of the following circumstances: (d) without her consent, when she is under sixteen years of age; (e) with or without her consent, when she is under twelve years of age; shall be punished with imprisonment for a term of not less than * ten years and not more than thirty years and shall also be liable to whipping. The harshness of the punishment when it involves a child below 12 years of age is probably meant to afford greater protection to young children as it is more likely that they would be more susceptible to coercion and manipulation at a young age. While we are on the topic of children, this leads us to our next point... What is incest? Incest is basically a term used to describe sexual relations between family members (whether immediate or not). In Malaysia, incest is a crime under section 376A of the Penal Code and specifically in the Malaysian context, incest is defined as sexual intercourse with someone they are not allowed to marry due to law, religion, custom or usage applicable to said person. If you are curious to read about how Malaysia’s definition of incest differs from other countries, our friends at Cilisos did a write up on it here. Section 376A Penal Code: A person is said to commit incest if he or she has sexual intercourse with another person whose relationship to him or her is such that he or she is not permitted, under the law, religion, custom or usage applicable to him or her, to marry that other person. However, the Penal Code is rather vague on what kind of relationship must exist before someone can be considered guilty of incest. This is where reference needs to be made to the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”) and the Islamic Family Law (Federal Territory) Act 1984 (“IFL 1984”) which defines relationships which are prohibited. In order to keep this article digestible, we will only provide a brief example although there are more than can be found in these Acts. Basically, a sexual relationship with any blood relation regardless of how distant that connection is, is considered to be incestuous. This means that it is incestuous to engage in sexual intercourse with your parents or siblings. Prohibited relationships also extend to relationships of closeness such as stepparents or when the same wet nurse is shared. The only exemption is to respect the Hindu culture where section 11 LRA does not apply to Hindus who wish to marry, under Hindu law/custom, his niece (sister’s daughter) or her uncle (mother’s brother). When read in relation with the Penal Code, the punishment for incest is a minimum of 10 years of imprisonment (the maximum period is 30 years) and whipping. There comes the question of who can be guilty of incest? Basically anyone (regardless of age) who has sexual intercourse with any of the persons listed in the Acts mentioned above would be guilty of incest. This means that if both parties to the intercourse consented to such an intercourse, they would both be charged with incest. There are only two defences to incest. The first is that the parties involved were unaware that the person that they were engaging in intercourse with is related to them. The second is where there was no consent. The lack of consent in incest cases operates slightly differently from rape (not statutory rape) cases. In rape cases, the lack of consent is a crucial factor in finding an offender guilty. For incest, the lack of consent is a crucial factor in finding the victim innocent. This is because, unlike rape, the crucial factor of incest is not consent but the type of relationship between the parties. As a simple example, if a brother sleeps with a sister, they are both guilty of incest. But if a brother rapes a sister, the sister is not guilty of incest; only the brother. Futher to that, section 376B of the Penal Code also tells us that the law presumes that girls under 16 years old and boys under 13 years old would be incapable of consent. This mean that if there is incest involving a girl below 16 or a boy below 13, they would not be guilty of incest even if they consented to it. If incest and statutory rape reads as two different crimes to you, you are not wrong. However… We usually see incest charged alongside statutory rape. Why? Just to drive the point home, incest and statutory rape are two separate crimes but we see them being charged together because the sad reality is that most incest cases are committed by family members (whether parents, grandparents or even cousins) on children under their care. A clear example of this would be the “Monster Dad” case mentioned above where being 15 years old and his daughter, the father committed two separate crimes by raping her. So, to clarify the overlap between incest and statutory rape, here are some examples. Rape: A man has sexual intercourse with a woman without her consent. Statutory rape: A man who has sexual intercourse a girl (under 16) with/without her consent would be charged with statutory rape. The most recent case involving statutory rape was where a 25 year old man was arrested for having consensual sexual intercourse with his 13 year old girlfriend. The deputy superintendent of the case stated that: ""Though it was consensual sex, it is considered statutory rape under Section 376 of the Penal Code as it involves a minor,"" – DSP Jimmy, in an interview with The Star. Incest: A brother(above 13) and sister(above 16) who both consent to sexual intercourse would both be charged with incest. An example of consensual incest can be seen in this case of a father having sexual intercourse with his daughter since she was 18. If you are curious to read more about consensual incest, some of our local law professors actually wrote an article about it here. Incest and statutory rape: A family member who has sexual intercourse with another female family member (below 16) would be charged with incest and statutory rape. A family member who has sexual intercourse with another male family member would be charged with incest but not rape because our laws on rape are gender specific. The offender might be charged for carnal intercourse against nature under section 377A of the Penal Code on top of the incest charge. The above examples show that incest and statutory rape can overlap in certain scenarios and can also stand alone as separate crimes. To draw a parallel with other laws, it is the same idea as you driving across a red light. Not only have you broken a traffic rule (going against the red light) but you might also be charged for reckless driving under the Road Transport Act 1987. Malaysia has such laws to better protect the more vulnerable members of society While some may argue that age does not indicate maturity, it is necessary for the law to take such a stance in order to have a benchmark for protecting children. Aside from that, while incest may be practiced in some areas and used to be more popular in the older days, the side effects of incest can be pretty grimy. Plus, there is the whole other issue of how incest typically involve younger members of the family who may be susceptible to grooming and manipulation from the people who are supposed to care for them. Sexual grooming leads down another rabbit hole which we will deal with in a separate article. For now, if you need further information or know of someone who may need help on these matters, you can always contact the organisations below: Women’s Aid Organisation: 03 7956 3488/ 018 988 8058 (Whatsapp) All Women’s Action Society: 03 7877 4221"
"If you hit a double parked car in Malaysia, who's wrong?  Most Malaysians are no strangers to double parking, and it’s a topic that everyone has an opinion about since it has the potential to incur mind-boggling amounts of frustration. We may remember an incident from 3 years ago where a frustrated driver reversed his 4WD into a double parked Myvi that was blocking him. There’s also other incident where an enraged lorry driver rammed into 18 cars that were blocking his way. While there is a certain satisfaction in seeing/watching this happen, not all of us have the nerve (or the money) to do what the 4WD or lorry driver did – although such thoughts would have crossed our minds as we sat honking, waiting for the owner of the double parked vehicle to move their wheels from blocking your exit. You might also be wondering whose fault it would be if you hit a double-parked car, whether by accident or on purpose. After all, the car wasn’t supposed to be there in the first place, right? Actually, it will still be your fault Regardless of whether it was on purpose or an accident, you’ll still be held responsible. Let’s address the scenario where you hit the car on purpose first. You might not be happy with this answer because you’re probably thinking they’re in the wrong for double parking in the first place – in fact, you’re probably doing society a favor! Alas, this form of vigilante justice does not hold up in the eyes of the law. If you hit a double parked car, you can be liable under LN166/59 Rule 10 of the Road Traffic Rules 1959 (Falling asleep while driving or failing to control your vehicle’s movements well), where you will be slapped with a summons of RM 300. There is no copy of this available online, unfortunately. And remember the lorry driver we mentioned earlier? He was charged under Section 43(1) of the Road Transport Act 1987, which provides: “A person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for another persons using the road shall be guilty of an offence…” He could’ve been fined between RM4,000 to RM10,000 along with possible imprisonment for a term not exceeding twelve months. On the other hand, if it was an accident, it would still be your fault based on the assumption that there was enough space for you to pass through, or that you could see it reasonably well before you reached it. However, this may be dependent on the specific circumstances and it would be up to the police to make the final call. But wait – The double parked car is ALSO at fault! Don’t worry, they get their just deserts too. Federal traffic police chief SAC Mahamad Akhir Darus said that not only will the double parked car get towed, the driver will be fined RM300. In addition to that, people who double park can be liable under Section 48(1) of the Road Transport Act 1987 which says: If any driver of a motor vehicle causes or permits such motor vehicle to remain at rest on any road in such a position or in such a condition or in such circumstances as to be likely to cause danger, obstruction or undue inconvenience to other users of the road or to traffic, he shall be guilty of an offence... This means that any person who stops their motor vehicle on any road, in a dangerous manner or may inconvenience other road users, can be slapped with a fine between RM1000 and RM5000, a jail term of not less than 1 year, or both. If the obstruction involves officials (police officers, road transport officers, etc), Section 48(2) of the Road Transport Act allows the relevant authorities to clamp the obstructing vehicle. Further provisions within Section 48 detail more specific procedures regarding towing and wheel clamping on illegally parked vehicles. Both Section 48(1) and (2) clearly apply to people who double park. So what is the right thing to do if you get blocked by a double parker? So it comes down to this. Yes, you’re still at fault if you hit a double parked car, so don’t do that. Instead, you should call the local municipal council (MBPJ, DBKL, etc.) or the traffic police to tow the car away. Of course many people would ask questions like, “What if it takes too long for action to be taken?”. Federal traffic police chief SAC Mahamad Akir states in the same interview that he understands the public’s concern, but the law is still law. He added that the people should not take the law into their own hands and let the police handle the matter. A similar opinion is also shared by a police officer interviewed by ASKLEGAL (who prefers to remain anonymous) for this article: “People want convenience, but at the cost of the convenience of other people, intentionally or unintentionally. This phenomenon (double parking) is not a new one, by any means, but it has been growing exponentially in the past 10 years. It could be a symptom of a larger problem and that has to be addressed. In the meantime, people should not act upon their emotions and damage double parked vehicles that are blocking their way, and instead rely on our public officers.” – Anonymous police officer, in interview with ASKLEGAL And if you’re the one doing the double parking, leaving your phone number on the dashboard goes a long way in making someone’s day a little less frustrating."
"7 Malaysian laws you probably didn't know existed (that can still get you in trouble)  In any country, it is important to have a large array of laws in place to aid the governance and administration of the nation. Because many of these laws may have been written at a time when social norms, morality, and even technology is far different from what it is now – and, over time, are less commonly enforced. And because these laws are enforced less over the years, it is only natural that many of them go unnoticed by the public unless you work closely with the law or are incredibly enthusiastic about legal affairs. But this doesn’t mean that the laws are any less valid – they can still be enforced if the need arises! The law can sometimes take us by surprise. Image credit: Imgur In the list that follows, we single out 7 lesser-known laws that are still a part of Malaysia’s legal landscape. 1. Riding an elephant down the street Law: Section 11(b) of the Minor Offences Act 1955 – Miscellaneous Offences (in part): 11. Any person who— (a) leads, drives or rides any horse, cattle, sheep, goat or pig on any public road in such a manner as not to have control over the same or in such a manner as to cause danger or obstruction to persons or traffic moving on the road; (b) drives, rides or leads any elephant on any public road without the permission of the Chief Police Officer or of an officer authorized by him in writing by name or office; Penalty: A maximum fine of RM50 If you ever came across an elephant and had an urge to ride it to your local mamak, please be advised that it’s not a good idea – unless you get permission from the Chief Police Officer first. Not just that, you’ll also have to ensure that the elephant has to be ridden in a way that doesn’t pose a danger or obstruction to other motorists so it’s probably not a good idea to use your phone while riding. To put things in perspective though, this is a really old law. Jjust to give you an idea of how old this law is, if you were ever taken up to tusk for your elephant joyride, your punishment would be a RM50 fine at most. This means that it’s cheaper for you to be riding an elephant dangerously than to be speeding down the highway in 2017. 2. Singing obscene songs in public Law: Section 294(b) of the Penal Code – Obscene songs: Whoever, to the annoyance of others— (a) does any obscene act in any public place; or (b) sings, recites or utters any obscene song, ballad or words in or near any public place, shall be punished with imprisonment for a term which may extend to three months or with fine or with both. Penalty: Imprisonment for a maximum of 3 months, a fine, or both. Section 294b of the Penal Code sheds light on the fact that singing obscene songs in public in Malaysia is illegal. The act is categorised under the same umbrella as performing obscene actions or obscene activities in public. It’s notable that the law itself doesn’t specify what’s “obscene”, so this may be left up to the subjective interpretation of the authorities and/or the person who heard it (and reported you). It also seems that this law hasn’t been used in a while as we couldn’t find any recent instances where someone was charged under this section of the law. Just to be safe though, if you ever get the urge to sing Despacito while crossing the street, you might just want to hum the tune instead. 3. Playing drums at night in towns Law: Section 13(1a) of the Minor Offences Act 1955 – Excessive noise (In part): Any person who— (a) beats within the limits of any town or village between the hours of midnight and 6 a.m. or in any public road or public place at any hour, a drum or tom-tom, or blows a horn or trumpet, or beats or sounds any instrument or utensil in such a manner as to cause annoyance or inconvenience to occupants of any premises in the vicinity; ... Penalty: A maximum fine of RM100.00. Yes, there’s actually a specific law against playing musical instruments loudly – notable examples of which include drums, tom-toms and trumpets – between 12.00AM and 6.00AM in towns. This is described in Section 13(1a) of the Minor Offences Act 1955, which explains that this law is applicable within the confines or limits of any town or village, and also covers the usage of utensils in a loud manner to the annoyance of those in the vicinity of that sound. The section further elaborates that beating drums or playing instruments in an annoying manner at any time on public roads or in public places is equally illegal. This may explain why there aren’t many garage bands in Malaysia (aside from the fact that we don’t have garages). 4. Attempting to commit suicide Law: Section 309 of the Penal Code – Attempt to commit suicide (In part): Whoever attempts to commit suicide, … shall be punished with imprisonment for a term which may extend to one year or with fine or with both. Penalty: Imprisonment for a maximum of 1 year, a fine, or both. This law is arguably the most controversial one on this list, and is also likely to be slightly more popular than the rest. It still manages to stun and surprise a great deal of Malaysians, though. Section 309 of the Penal Code recognizes suicide attempts as offences against the law, and thus prescribes that all who attempt to commit suicide be punished accordingly. This, of course, would most probably only hold in the event that the attempt is unsuccessful. 5. Insulting someone or cursing Law: Section 14 of the Minor Offences Act 1955 – Insulting behaviour (In part): Any person who uses any indecent, threatening, abusive or insulting words, or behaves in a threatening or insulting manner … with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be occasioned, … Penalty: A maximum fine of RM100.00. The next time someone angers you on the road or shoves past you in a crowded place, and you feel the urge to yell or insult him or her and start a fight, think again. According to Section 14 of the Minor Offences Act 1955, any sort of insulting behaviour – be it in terms of using insulting or indecent words, language or gestures – which is administered with the intention of disturbing peace or provoking someone else is regarded as an offence against the law. But if you think that you can escape this by taking your grievances to social media, sorry to burst your bubble but that may also land you in legal hot water as well. [READ MORE: Shaming someone on social media can land you in jail] 6. Getting drunk in public places Law: Section 21 of the Minor Offences Act 1955 – Drunkenness and disorderly behaviour in public places (In part): Any person who is found drunk and incapable of taking care of himself, or is guilty of any riotous, disorderly or indecent behaviour, ... in any public road or in any public place or place of public amusement or resort, or in the immediate vicinity of any Court or of any public office or police station or place of worship, … Penalty: Imprisonment for a maximum of 14 days or a maximum fine of RM25.00 for the first offence; imprisonment for a maximum of 3 months, a fine of RM100.00, or both for each subsequent offence. If you think that the only time alcohol can get you in trouble in Malaysia is when you drink and drive, think again. Section 21 of the Minor Offences Act 1955 illustrates that a person is said to be in violation of the law if he or she gets drunk to the point of being unable to look after themselves and proceeds to act indecently, disorderly or in a riotous manner in a public place. It is also illegal to reach this state of drunkenness in the vicinity of a courthouse, a public office, or a place of worship. Those who break this law for the first time will be punished with imprisonment for a maximum term of 14 days or a maximum fine of RM25.00. Each subsequent offence of this nature will then be met with a penalty in the form of a maximum fine of RM100.00 or imprisonment for a maximum of 3 months, if not both. 7. Men receiving oral sex Law: Section 377A of the Penal Code – Carnal intercourse against the order of nature (In part): … the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature. Penalty: Imprisonment for a maximum of 20 years, and whipping. No, you do not need to do a double or triple take. This law dictates exactly what the title says. Section 377A of the Penal Code tells us that if a man inserts his penis into the mouth of another person, he is considered to be taking part in carnal intercourse against the order of nature, which is an illegal offence. The same can be said for the act of inserting one’s penis into another’s anus, which the same section also identifies as an illegal act. The more you know… While we can’t be expected to know each and every law, it should be mentioned that saying you don’t know the law is not an accepted excuse in court – something you should bear in mind the next time you’re singing Despacito while riding an elephant in KL. In all seriousness and fairness, it can be hard to constantly keep the law updated; and instances of strange or outdated laws can be found in other countries as well. For instance, in the US, it’s apparently illegal to use elephants to plow cotton fields in North Carolina (seriously, what is it with elephants?). Credit where credit’s due, the government does update certain laws when there is a strong need for it, such as strengthening the Domestic Violence Act to remove certain loopholes or introducing the Sexual Offences Against Children Act in light of the rampant child grooming activities happening online."
"Apakah langkah yang boleh diambil jika anda ditampar di khalayak umum? [Artikel ini diterjemah dari Bahasa Inggeris. Click here for English version] Beberapa bulan lalu, suatu rakaman video telah tertular di laman sosial di mana pengarah filem tempatan, David Teo telah ditampar di khalayak ramai, di hadapan kamera dan di hadapan Perdana Menteri. Kejadian berlaku di Majlis Dialog Transformasi Nasional 2050 pada 17 Mei yang lalu. Pelakon dan pelawak, Sulaiman Yassin telah menampar David Teo yang dikatakan tidak menghormati PM Najib. Klik sini untuk melihat video. Imej screenshot dari Youtube oleh Free Malaysia Today Bagaimanapun, situasi dikatakan telah terlerai. Kedua-dua pihak bersalaman pada akhir majlis dan menurut David Teo, beliau tidak membuat apa-apa dakwaan. Baru-baru ini, pelakon Sharnaaz Ahmad didenda RM1,200 selepas mengaku bersalah menumbuk seorang pekerja Bangladesh di Kelab Desa & Golf Kuala Lumpur. Kejadian tersebut membawa kita kepada beberapa perkara…apa yang boleh (dan harus) anda lakukan sekiranya anda ditampar di hadapan orang ramai? Ini juga merangkumi bentuk keganasan yang lain iaitu bertumbuk, mengasak atau menendang. Jadi, harus diingat bahawa… JANGAN tampar balik! Andai kata anda adalah mangsa keadaan (ditumbuk atau ditampar), dinasihatkan supaya jangan membalas melainkan dalam keadaan yang tidak mengizinkan (nyawa anda dalam bahaya). Sebaliknya: Menjauhkan diri dari si pemukul. Bertindak untuk mempertahankan diri Hanya menolak si pemukul itu Meminta bantuan dari pihak penguasa terdekat Ini untuk tidak memperbesarkan masalah yang berlaku, dan supaya tindakan undang-undang tidak dikenakan terhadap anda. Dalam Seksyen 96 – 106 Kanun Keseksaan, mengatakan anda mempunyai hak untuk mempertahankan diri tetapi masih ada beberapa hal yang masih samar-samar tergantung situasi kes. Ini termasuk hak anda untuk mempertahankan diri ditarik - anda kemungkinan boleh dikenakan tindakan – jika sempat menghubungi pihak polis, dan tidak mengancam nyawa si penyerang yang hangat diperdebatkan: Seksyen 99 Kanun Keseksaan - Perbuatan yang tiada hak pertahanan persendirian terhadapnya: (3) Seandainya mangsa sempat untuk mendapat perlindungan daripada pihak berkuasa daripada serangan atau perbuatan penyerang maka keadaan ini juga tidak mewajarkan penggunaan hak pertahanan persendirian (4) Mangsa tidak dibenarkan di bawah undang undang untuk mendatangkan kerosakan kepada penyerang lebih daripada yang perlu dilakukan Dengan kata lain, jika anda yang memulakan, andalah yang akan kena. Sama juga kalau anda membalas pukulan tersebut. Langkah pertama, lapor polis Hanya untuk illustrasi. Imej asal dari Ipoh Barat Voice. Ada dua langkah yang boleh diambil – dari segi jenayah atau awam. Laporan polis adalah perlu untuk memulakan siasatan jenayah. Setelah laporan dibuat, pihak polis boleh menjalankan siasatan dan bergantung kepada hasilnya, si pelaku akan didakwa di bawah kesalahan jenayah. Maksudnya di sini, si pelaku akan dikenakan tindakan undang-undang jika disabit kesalahan. Sebagai contoh, orang yang menampar anda itu akan didakwa di bawah Seksyen 322 Kanun Keseksaan oleh sebab telah menyakiti/melukai orang lain dengan sengaja di mana akan dikenakan hukuman (Seksyen 323) penjara selama satu tahun maksimum dan/atau didenda RM2,000 jika didapati bersalah. Ambil perhatian bahawa, dengan hanya mengugut dan mengangkat tangan seperti hendak menampar, itu boleh dikatakan sebagai suatu kesalahan dan boleh dikenakan tindakan bagi sesetengah kes. Sebaliknya tidak jika ugutan cuma secara lisan. Seksyen 351 Kanun Keseksaan – Serangan: “..serangan tidak memerlukan apa-apa sentuhan, tetapi memadai tindakan penyerang, sama ada melalui apa-apa isyarat atau persiapan yang menimbulkan kebimbangan kepada mangsa yang merasa dirinya akan dikenakan kekerasan jenayah.” Sama ada pihak polis mendakwa si pelaku atau tidak, laporan polis yang telah dibuat itu boleh digunakan untuk langkah selanjutnya – tuntutan mahkamah. Selanjutnya, tuntutan mahkamah Tuntutan mahkaman adalah satu lagi langkah yang boleh diambil jika anda di tampar di hadapan orang ramai. Sekiranya anda bercadang untuk mengeluarkan saman terhadap seseorang itu, terdapat dua perkara yang harus anda pertimbangkan - sama ada mengeluarkan saman semasa siasatan polis sedang berjalan atau sebagai ""backup"" dalam situasi di mana tiada apa-apa dakwaan dibuat. Ini disebabkan kos tuntutan mahkamah adalah mahal dan mengambil masa, di mana anda harus menggunakan khidmat peguam dan harus ada waktu untuk menghadiri perbicaraan di mahkamah. Adalah lebih baik jika anda mendapatkan khidmat nasihat dari perguam terlebih dahulu jika mahu membuat tuntutan mahkamah. Sekiranya tuntutan mahkamah dibuat, ini sudah termasuk di bawah undang-undang tort. Undang-undang tort ini agak rumit untuk diterangkan tetapi pada dasarnya, ia adalah satu cara di mana anda boleh menuntut kerugian yang dibuat oleh pihak ketiga. [Baca lebih lanjut: What is tort law?] Peguam anda boleh memberi khidmat nasihat berkenaan tort jenis mana yang dipakai untuk mengeluarkan saman ke atas seseorang, tergantung keadaan kes itu. Tetapi biasanya dipakai Tort of Assault untuk kes yang dibincangkan dalam artikel ini. Dalam Tort of Assault, ia tidak seharusnya ada kontak fizikal, menggunakan gerak isyarat untuk memukul sahaja sudah memadai untuk menjadi suatu kesalahan - sama seperti yang disebut dalam Kanun Keseksaan. Ada juga cara lain yang boleh diambil seperti meminta si pelaku itu membuat kenyataan terbuka meminta maaf di hadapan khalayak umum jika anda ditampar/dipermalukan di depan orang ramai. Kenyataan sedemikian boleh dibuat di laman sosial seperti di Facebook atau - jika mahu lebih dramatik - dipaparkan di dalam suratkhabar. Sekali lagi, peguam anda boleh membantu anda, jangan risau. Adanya saksi/bukti amatlah membantu Adanya saksi yang saksama boleh membantu menyokong kenyataan yang anda buat jika terlibat dalam situasi sebegini. Harus diingat – pihak satu lagi boleh memberi kenyataan yang sebaliknya (palsu). Mendapatkan kenyataan secara langsung dari pihak saksi yang berada di tempat kejadian boleh dijadikan bukti bagi membantu siasatan pihak polis. Lagi baik jika adanya rakaman video baik dari telefon pintar maupun CCTV. Akhir sekali, janganlah anda memulakan dahulu atau termakan dengan hasutan untuk membalas sungguhnya kita mudah terjebak dalam situasi demikian. Ditampar adalah satu hal tetapi jika ditambah dengan tindakan undang-undang? Ia menjadi 'tamparan' yang lebih hebat."
"7 rape scenarios found in Malaysian law that you probably didn't know about Back in 2015, the Penang’s Women’s Centre for Change provided statistics that said that one woman is subject to sexual crimes every 35 minutes in Malaysia. Given the news reports recently, it seems like rape has become a bigger problem in Malaysia. From the alleged rape of a passenger by her Grab driver to the rape of a teenager by a 19 year old boy and even the heinous actions of the father dubbed, “Monster Dad” who faces a total of 626 charges related to sexual offences committed on his own daughter, Malaysians have been equally outraged and horrified by the deluge of rape, incest, statutory rape, and child sexual abuse reported by the media. The latest news that was reported was that a mother in Kuching has been arrested for pimping out her 14 year old daughter who was prostituted to a man in order to pay off her mother’s debts. Aside from the mother’s arrest, the man who had sex with the 14 year old girl is now wanted for rape by the Malaysian police. [READ MORE: How are incest laws in Malaysia related to statutory rape?] [READ MORE: Is prostitution illegal in Malaysia? You might be blown away by the answer] While statutory rape, incest, and child sex abuse would be dealt with in another article, this article aims to break down what is the legal definition of rape (we would like to point out that the law on rape is gender specific). First, how does Malaysian law define rape? We are all familiar with the idea that if anyone says no and their partner still continues to subject them to sexual intercourse, then it is rape. Beyond that, the Penal Code also states that penetration is sufficient enough to constitute sexual intercourse for the purposes of rape. This means that the moment penetration occurs together with any of the scenarios listed in the Penal Code, it would be considered rape. In Malaysia, rape is typically punishable with up to twenty years in prison and whipping but the law also specifies 11 different scenarios where if rape happens alongside those scenarios, the punishment for rape can be extended up to thirty years in prison. Examples of these scenarios are when the victim is below 12 years old, where the rapist is aware that he is infected with a disease that can be transmitted through sexual intercourse and when the victim goes insane/commits suicide because of the rape. The Penal Code gives us several scenarios where rape can occur. We will deal with the scenario that most Malaysians are aware of before moving on to the rest in the next section. Section 375 (in part) Penal Code: “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions: (a) against her will; (b) without her consent...” The scenario pointed out in (a) and (b) are the ones that most Malaysians are familiar with is when rape occurs against someone’s will and without their consent. Typically, we associate this with the victims saying no (any other similar words) or showing signs of struggles in order to stop the sexual advances. For example, if person A proceeds to penetrate person B even after she has indicated that consent is not given and it is against her will, then it is considered rape. While many of us typically relate consent and will as manifesting in words, it is important to bear in mind that just because someone did not speak out/struggle against the sexual intercourse or “fought back”, that it means that the sex was consented to. For example, if person A proceeds to penetrate person B and she does not speak out/fight back, it does not mean that person B is not being raped. This means that even if someone submits to sexual intercourse, it might not mean that she consents to it. ”...there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent.” – Dunn LJ, R v Olugboja. Points (c) to (g) will be discussed in the next section. Even if the victim said “Yes”, it can still be considered rape Scenarios (a) and (b) present the more straightfoward situations in which rape can happen. Here, we look at the rest of the scenarios from (c) to (g): Section 375 (in part): “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions... (c) with her consent, when her consent has been obtained by putting her in fear of death or hurt to herself or any other person, or obtained under a misconception of fact and the man knows or has reason to believe that the consent was given in consequence of such misconception; (d) with her consent, when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married or to whom she would consent; (e) with her consent, when, at the time of giving such consent, she is unable to understand the nature and consequences of that to which she gives consent; (f) with her consent, when the consent is obtained by using his position of authority over her or because of professional relationship or other relationship of trust in relation to her; (g) with or without her consent, when she is under sixteen years of age.” Simplified, the situations given above are as follows: (c) When consent has been obtained by putting the woman under a fear of death/hurt to herself or any other person (c) When consent has been obtained by a misconception of fact and the man knows/has reason to believe that consent was given under this misconception (d) When consent is given because she believes that the man is her husband/someone she would consent to sexual intercourse with (e) When consent is given when she is unable to understand what she is consenting to (f) When consent is given because it was obtained due his position of authority over her/any professional relationship/any relationship of trust (g) When consent is given but she is under 16 years old (this is known as statutory rape and will be dealt with in another article) [READ MORE: How are incest laws in Malaysia related to statutory rape?] Consent obtained through fear of death/hurt (c) Dealing with the first scenario, an example of this would be where if person A threatens that he would kill or hurt person B if she does not agree to have sex with him or if person A threatens that he would murder/harm someone else if person B does not consent to have sex with him. The reason why this consent is not valid is clear – the “consent” was obtained through causing the other person to fear death or harm. This was how Canny Ong was abducted by her rapist and was eventually murdered. Consent obtained through misconception of facts (c) For the second scenario, this relates to when there is a mistake over the facts concerning the situation at hand. An example of this that most Malaysians would be familiar with is where a bomoh claims to be able to cure a woman of her sickness through sexual intercourse or where a doctor claims to be treating a patient but instead rapes her. An 1877 UK case of R v Flattery also highlights this. The rapist told the girl that he was carrying out an operation to cure her but was actually raping her. The court held that her consent to the “operation” is to be dismissed because it was obtained through fraud. Consent obtained through belief that the person is her husband/sexual partner (d) The next scenario is where the woman consents to the sexual intercourse with the belief that the person she was sleeping with is her husband or sexual partner. For example, if person A knows that he is not person B’s husband/sexual partner but still proceeds to engage in sexual intercourse even when he knows that she only consented because she thought he was her husband/sexual partner, person A would be guilty of rape. Consent obtained when she is unable to understand/through a position of authority (e) and (f) For consent given when she is unable to understand what she is consenting to, this is typically where the woman is not in the right state of mind to provide consent. This may include scenarios when the woman is drunk, asleep, unconscious, etc. As for consent obtained through a position of authority/professional relationship/relationship of trust, an example of this would be where a boss tells his female employee that if she does not have sex with him, she would lose her job. There is more than meets the eye for the laws regarding rape As you can see from the examples given above, the law regarding rape is not just related to a simple “No”. There are many factors involved in finding someone guilty of rape and deciding whether the consent was actual. Further to that, while Malaysia law does not recognise marital rape, a woman who is living separately from her husband after commencing divorce proceedings or who has filed an injunction against her husband, is not considered a wife for the purposes of charging a crime of rape. The same goes for a Muslim woman who lives separately from her husband during the period of “iddah”, she would not be considered a wife for the purposes of finding her husband guilty of rape. Section 375 (in part) Penal Code: “Explanation 1— A woman— (a) living separately from her husband under a decree of judicial separation or a decree nisi not made absolute; or (b) who has obtained an injunction restraining her husband from having sexual intercourse with her, shall be deemed not to be his wife for the purposes of this section. Explanation 2— A Muslim woman living separately from her husband during the period of ‘iddah, which shall be calculated in accordance with Hukum Syara’, shall be deemed not to be his wife for the purposes of this section.” At the end of the day, it is always important to have respect for your fellow human beings. Beyond that, communication goes a long way in bed (and out of it) in order to find out if your partner really does consent to the intercourse (and for other more pleasurable things as well). It is also important to bear in mind that just because the law may have certain loopholes that need addressing, does not mean that it is okay to exploit those loopholes. What is legally wrong might be ethically sound and vice versa. Societal ethics evolve at a different rate than the law and therefore, it is always important to exercise judgment. Rape is also never the victim’s fault. It is not about the length of a dress or even about one’s sexual history. Neither is rape only limited to females or is about sexual gratification (it is about the exertion of dominance and power) so resorting to the legalisation of prostitution would not address this problem. What is needed is a change in mindsets to address the rape culture and a better understanding of the nuances of rape and consent. If you are a victim or knows someone who requires assistance… Here is a list of the basic things that you can do: Get to a safe place. This means that you should try to distance yourself away from your attacker and seek the help of trusted friends or family members Do not bathe. This is essential as bathing or washing yourself would wash away crucial evidence that could help the police arrest and charge your attacker Head to a police station or a government hospital in order to file a police report or get a check up. An important point to note that according to Malaysia’s One Stop Crisis Centre policy, the hospitals must prescribe medication for exposure to prevent sexually transmitted diseases (“STDs”) and also emergency contraception. This means that even if you are hesitant to approach the police, it is best to head to a hospital to protect yourself against STDs and unwanted pregnancies. Further to that, there are several numbers that you can contact for further information and counselling: Women’s Aid Organisation: 03 7956 3488/ 018 988 8058 (Whatsapp) All Women’s Action Society: 03 7877 4221"
"If you illegally drive on the emergency lane in Malaysia and get hit, who's wrong? You’re in the emergency lane of the highway one day. Suddenly, another car comes hurtling towards your vehicle and there’s a sickening crunch. Another car has just hit you from behind! But... whose fault is it? Well, it depends on why you were in the emergency lane in the first place. It makes sense that it’s the other car’s fault if you were parked there because of an emergency. Whether your car broke down, or it was raining and you as a motorbike rider needed to take shelter under a bridge. It’s straightforward that if you were there for a legitimate reason, you won’t be at fault. But what if you were driving there illegally? There’s the usual rush hour jam. The lanes are not moving at all, but you notice the emergency lane is clear. You see some other cars doing it, so you signal left and join them to cut the queue. After all, might as well use the empty space to help smoothen the jam right? Image from therakyatpost Under Rule 53(1) of the Road Traffic Rules 1959 (no online copy available), driving in the emergency lane is an offence. This is punishable under Section 119(2) of the Road Transport Act 1987 with a fine of up to RM2000, or up to 6 months in jail. The authorities are taking misuse of the emergency lane more seriously, especially since that time two motorcyclists who were in an accident died because the ambulance was blocked by cars hogging the emergency lane. The first thing is note is whether or not the accident was your fault, if you were driving in the emergency lane at all, you have already broken the law and can be liable to fine. This is the part that makes you responsible to the Road Transport Department (JPJ). Then comes the responsibility for the accident. Who is at fault and pays for the damage? Does the law still protect lawbreakers? This depends on the exact facts of your situation. The key question to ask is - Was the damage caused because of the illegal act? In law, there’s a principle called ex turpi causa non oritur actio, which is just Latin for “no right can arise from an illegal action”. There’s some case law you can find here that establish the principle. Basically, if you did something illegal that ends with you experiencing some loss, you will have no right to be compensated for that loss. It also sometimes means that other people don’t owe you a duty of care (which very simply means they’re not obligated to look after you). We’ll explore two common scenarios below. Scenario 1 - You crash into a car parked in the emergency lane Image from dailymail If you rammed into the back of a car parked in the emergency lane, you are automatically at fault because of these reasons:- You are illegally driving in the emergency lane. You failed to take care while driving on the road. You might be thinking at this point - What if the parked car wasn’t noticeable because, say, it didn’t set up hazard lights? It doesn’t matter. The other driver probably should have taken that precaution, but because you were doing something illegal, the law will not defend you. In any case, you weren’t even supposed to be in the emergency lane! Even if it was really the other driver’s fault, the law will still not help you. This is why you will have no case - to even sue the driver, you need to prove that you were breaking the law. The important point to note here is that if you were not in the emergency lane, you would not have crashed into the stopped car. The accident would have no chance of happening unless you accidentally swerved into the emergency lane or something else unfortunate happened. To use an example, letting you sue the other driver would be like letting a burglar sue you for getting injured on your barbed wire. He should not be allowed to benefit from his crime. That’s one scenario taken care of. But what if the car you crashed into was also driving in the emergency lane? Scenario 2 - You crash into a car driving in the emergency lane If you crash into a car driving illegal in the emergency lane like you are, you could still get into trouble. This is because the following facts are still true:- You are illegally driving in the emergency lane. You failed to take care while driving on the road. You both will probably get a fine from the authorities for driving in the emergency lane. But since the other driver also did something illegal, they can’t sue you for compensation right? Image from pinterest It depends. It’s not a very good answer, but it’s the accurate one because the exact facts will be different from case to case. But since we’re just working on hypothetical scenarios, let’s say you are the one at fault for the accident and there are no other complicating factors. You could still get sued because the other driver doesn’t need to prove that he was doing something illegal. To break it down - In the previous scenario, you crashed into a car stopped specifically in the emergency lane. But in this situation, you crashed into a moving car on the road. The other driver does not need to prove that the accident happened in the emergency lane. It could just have easily happened in any other lane on the highway. But at the same time, the court will need to consider that the other driver was breaking the law as well. The other driver might not be entitled to protection of the law after disrespecting it. Having driven in the emergency lane, the law may not help him seek compensation. The outcome will turn based on the unique facts to each case, and it’s up to the court to decide upon it. Moral of the story is - don’t misuse the emergency lane It’s clear in our traffic laws that driving in the emergency lane is illegal. If an accident happens while we were misusing the emergency lane, we could be at a loss and unable to get compensation for the damage and losses we’d suffer. Put simply, the law will not support or condone lawbreaking. The law aside, taking up the emergency lane to beat a traffic jam is inconsiderate. It may be harmless most of the time, but when some road users who do have an emergency have no place to stop, it could cause them extra trouble, and even worsen the jam. In the worst case scenario like with the two motorbike riders, someone’s life could be counting on the timely arrival of an ambulance."
"What happens to your money if a Malaysian bank goes bankrupt? While banks generally don’t collapse after getting robbed, the scarier scenario is when a bank goes bank..rupt. And while this is a remote possibility, it has happened before in other countries, and even in Malaysia. So when a bank starts to struggle and the public gets wind of it, a bank run would happen. A bank run is where everyone who has deposited money with the bank goes on a mad dash to withdraw it and the bank would definitely not be able to keep up with such demands. A bank run happened in Malaysia in 1999 when MBf Finance saw their customers attempting to withdraw RM17billion and had to be rescued by Bank Negara. This article does not aim to tell you how to rob a bank and get away with it (though this writer certainly wishes it was possible, then it would be time to sail away in the Bahamas instead of writing articles in an office) but this article aims to solve that question that never crosses our minds during movies – will the people who deposited money with the bank that goes bankrupt get their money back? If you are getting a little worried now, don’t worry because Malaysia has this thing called the Perbadanan Insurans Deposit Malaysia (“PIDM”). And they actually do this pretty amazing thing... PIDM actually gives you money if your bank collapses The PIDM operates under the Malaysia Deposit Insurance Corporation Act 2011 (“MDIC 2011”) and acts to ensure the financial stability in Malaysia. It ensures financial stability by actually insuring your deposits. This means that if you ever lose money because the bank you are banking with has been robbed or has collapsed, PIDM would actually give you your deposits back. However, there are a few things that you need to note about this insurance scheme provided by PIDM. The first is that you do not have to do anything to be insured. This means that as opposed to common insurance plans that we buy for our home, car, or health, the PIDM automatically insures your deposits the moment you bank it in with a member bank. This would lead us to our next point which is what exactly is a member bank? Section 36 of the MDIC 2011 tells us that a member bank is a bank that licenced under one of these four Acts: Banking and Financial Institutions Act 1989 Islamic Banking Act 1983 Financial Services Act 2013 Islamic Financial Services Act 2013 In essence, any bank that is in Malaysia is considered a member bank. This includes locally incorporated subsidiaries of foreign banks which are found in Malaysia (this means that if your bank is an overseas bank with branches in Malaysia, they would most likely be a member bank as well). If you are wondering whether banks can opt out of this membership, the answer is no. The banks which are granted licences under any of the four Acts listed above are deemed to be members from the time they are issued their licences. Section 36 (in part) MDIC 2011: “...licensed under the Banking and Financial Institutions Act 1989 [Act 372], the Islamic Banking Act 1983 [Act 276], the Financial Services Act 2013 or the Islamic Financial Services Act 2013 after the commencement of this Act, shall be deemed to be a member institution from the date it is granted the licence.” So, you don’t have to worry about any of your banks sneakily terminating their memberships and leaving you out to dry in cases of them going bankrupt. This leads us to an even more important question that all of you would be interested in… So, how much am I insured for? The answer is that you are insured for a whopping quarter of a million ringgit. That means you insured for a total of RM250,000. Now, that we have caught your attention with cold, hard cash let’s bring you into the technicalities on the insured sum. The first thing to know is that your deposits are protected up to RM250,000 per depositor per member bank. This sum includes the amount that you deposited and any returns/interests that you may get off it. This means that if you banked in RM250,000 and you have accumulated RM30,000 in interest from that amount, the maximum that you are insured for still remains at RM250,000 instead of RM280,000. However, you might be pleased to learn that there are separate limits for conventional and Islamic deposits. This means that if you deposited RM250,000 in a conventional account and another RM250,000 in an Islamic account, you would be fully protected to the sum of RM500,000. This is found in section 42(1) of the MDIC 2011: “...separately insure the following categories of deposits placed with a deposit-taking member: (a) Islamic deposits; and (b) conventional deposits.” Aside from that, if you are like Scrooge McDuck and have your money sequestered away in different banks, you can breathe easier knowing that the limit applies separately for different banks. This means that if you have RM250,000 in Bank A and another RM150,000 each in Banks B and C, you would be covered by PIDM’s deposit insurance and receive the full RM550,000 of your deposits in the ( very unlikely) event that all three banks go bankrupt/gets magnificently robbed. However, different deposits in different branches of the same bank will be added together and the maximum amount that you can claim remains at RM250,000 (so, you definitely can’t cheat the system). If you are balling and have more than a few hundred thousand in a bank and want to know if you can purchase additional insurance for your moolahs, the answer is no. What you can do in the event of a bank’s failure is to try and claim it against the bank’s liquidator (a liquidator is someone who is appointed to distribute the assets of a bankrupt company to its creditors). If you have joint accounts with your family members or have accounts that are opened for your business with the same bank, PIDM also protects them separately. In a nutshell, the accounts that would be protected separately are: Joint accounts (provided the bank records show disclose the name of the joint holders) Trust accounts (the beneficiaries to a trust would enjoy up to RM250,000 aside from other insured deposits in accounts under their names IF the trustee lists down their interests and the amounts owed to them in the bank’s records) Accounts held by sole proprietors, partnerships, professional practices and companies PIDM has also included an example to show you how the breakdown happens: If you are confused over the example above, let’s break it down for you. Basically the example shows Ahmad having five different accounts in one bank. The variation of accounts present include a personal account, two joint accounts, an account for a partnership and an account for a company. Because PIDM allows separate claims for the types of accounts mentioned above and Ahmad has five different accounts, he would be protected up to RM250,000 for each account. Does this mean that anything I do with the bank is insured? Well, not really. The MDIC 2011 tells us which products would be protected under the deposit insurance scheme and which would not. This can be found in (the kinda long) section 41 MDIC 2011: “...includes— (i) a bank draft, traveller’s cheque, prepaid letter of credit, money order or other similar instrument… (ii) cheque or other similar instrument or instruction… (iii) a foreign currency deposit; or (iv) any liability or financial instrument as may be specified by the Corporation, but excludes… (A) a deposit that is not payable in Malaysia; (B) a money market deposit; (C) a negotiable instrument of deposit and any other bearer deposit; (D) a repurchase agreement; (E) a deposit that is payable by a deposit-taking member in the course of its Labuan banking business conducted under the Labuan Financial Services and Securities Act 2010 [Act 704] or its Labuan Islamic banking business conducted under the Labuan Islamic Financial Services and Securities Act 2010 [Act 705]; and (F) any other liability or financial instrument as may be specified by the Corporation...” If you are tearing your hair out over how confusing the above quote is, don’t fret for Asklegal is here. It basically means the following: What IS protected: Savings and current accounts Fixed deposits Foreign currency deposits Principal-guaranteed conventional structured products Islamic deposit accounts Bank drafts Cheques Any other payment instructions/instruments made against a deposit account (this would probably be those online transfers that you make like the interbank giro) What IS NOT protected: Conventional structured products that are not principal-guaranteed Deposits not payable in Malaysia Interbank money market placements Negotiable instruments of deposit and other bearer deposits Repurchase agreements Unit trusts Stocks and shares Gold-related investment products/accounts However, to be even safer, it is always better to ask if your bank covers your deposit type. According to PIDM, a member bank must inform you whether or not your deposit is eligible for the deposit insurance before you bank with them. The banks must also have a complete list of what products are eligible for deposit insurance displayed in their premises. For an example of how the list looks like, click here to head to Maybank’s page. Malaysian banks are pretty safe but... Don’t put all your eggs in one basket. Whether it may be diversification for the banks you are banking with or the type of products that you choose or even your type of investments, diversification helps to protect your finances in the event of an economic downturn. This is because when you diversify, you are putting your eggs in different baskets and wouldn’t have to worry (too much) if one basket takes a hit. Also, you don’t have to make a claim if your bank does collapse in Malaysia as PIDM would make an announcement for how you can be reimbursed. You can always head over to PIDM’s website or call them at 1-800-88-1266 for further information. Happy banking everyone and now when you are busy discussing the latest robbery in Malaysia, you can wow your friends with your in-depth financial knowledge."
"How to protect your domain name from cybersquatting in Malaysia? While you may not have heard of the term “cybersquatting”, you would definitely have experienced it at some point in time online. Perhaps you may have tried to set up a website, only to find that someone had already taken it and is offering to sell it at a high price. Otherwise, maybe you accidentally mistyped a popular brand name’s URL (ie, goigle.com instead of google.com) and ended up in some dodgy website. Cybersquatting means the act of registering, selling or using a domain name with the intent of profiting from someone else’s name or trademark. There are three ways this might happen: Someone registering a domain name under your name/trade mark Someone registering a domain name with your name/trade mark under a different extension (if you have a domain name ali.my and they registered it as ali.com.my, you might have an action against them) Someone registering a domain name under a common typo of your name/trade mark (if your domain name is ali.my and they registered it as aki.my, you might have an action against them) [READ MORE: What is a trademark?] You may have heard of several famous cases such as the one involving famous rapper, Eminem. A man registered his domain as eminemmobile.com and the United Nations World Intellectual Property Organisation found that the owner of that domain had registered his domain with the intention of profiting from Eminem’s fame. Aside from that, there is the case of Microsoft taking action against a guy called Mike Rowe for registering a domain name under the name mikerowesoft.com. But the good news is that there are international agencies such as ICANN that govern how site addresses are used and issued, and they can assist in cases where you feel that a site address you want has been cybersquatted. And what’s better is that you can do it right here in Malaysia! But first you have to prove that the person is cybersquatting In a nutshell, you first need to prove that the current owner of the site address was acting under bad faith. Here in Malaysia, the registration of domains is governed by the Malaysian Network Information Centre Berhad (“MYNIC”), which is an agency under the Ministry of Science, Technology and Innovation. MYNIC does not actually administer laws or regulations on how to register domain names (you are allowed to register any domain name as long as it is available) but they do have a policy (which you must agree to be bound by the moment you register for a domain) that is used to handle disputes on domain names. This policy is known as MYNIC’s Domain Name Dispute Resolution Policy (“MYDRP”). The policy is eight pages long and it covers several areas, including what is necessary to establish a cybersquatting claim. In essence, you must prove two things when complaining of a cybersquatting incident: The domain name is identical or similarly confusing to your trade mark You can show that the domain name was registered and/or used in bad faith Clause 5.2 of the MYDRP: “The Complainant must establish BOTH of the following elements in the Complaint:- (i) the Domain Name is identical or confusingly similar to a trade mark or service mark to which the Complainant has rights; and (ii) you have registered and/or used the Domain Name in bad faith.” Clause 6 then goes on to tell us what is required before you can establish bad faith. The list of situations which are said to reflect bad faith is summarised below but it may not encapsulate MYNIC’s points perfectly. To further illustrate this, we came up with some examples using a hypothetical site called ali.com You can prove that registration/use of the domain name was mainly to rent, sell or transfer the domain name to you, the owner of the trade mark, or your competitor. Example: You have a website registered under ali.my and someone else registers a website under ali.com.my in order to force you to buy that domain name, you might have an action against them. You can prove that registration/use of the domain name is to prevent you, the owner of the trade mark, from using that domain name (which is identical to your trade mark). Example: someone registered ali.com.my with the sole purpose of preventing you from using it, then you might be able to submit a complaint. You can prove that registration/use of the domain name is to disrupt your business. Example: Internet users who think that your site is ali.com.my end up being diverted from your actual site. You can prove that registration/use of the domain name is to attract/divert (for commercial gain), internet users from your website, a website belonging to your competitor or any other website through confusing/deceiving internet users. Example: someone registered ali.com.my in order to confuse internet users or trick them into thinking that that domain name belongs to you. By the way, typing ali.com in real life actually brings you to Muhammad Ali’s website. Guess the legendary boxer was ready for cybersquatters. The list of situations provided under the policy is non-exhaustive. This means that as long as you can prove that there was bad faith, you would most likely be able to show that cybersquatting has taken place. But what if the domain name was genuinely registered? What can I do then? This is where clause 7 of MYDRP comes in. It talks about rights and legitimate interests in the domain name. This means that if that guy who you thought cybersquatted you actually has rights and legitimate interests in the domain name, then he would not have bad faith. The question that you would have now is what in the world counts as rights and legitimate interests? Similar to proving bad faith, the MYDRP also provides a list of non-exhaustive scenarios that can be used to prove rights and legitimate interests. Once again, we have summarised them in the points below but it might not accurately reflect the encapsulating properties of MYDRP. The list of situations for proving rights and legitimate interests is as follows: Before receiving your complaint, the ‘cybersquatter’ had already used/made preparations to use the domain name or a name related to that domain name to genuinely offer goods or services. For example, if someone registered a domain name under ali.com.my and was actually providing goods/services, then you might not be able to bring an action against them. The ‘cybersquatter’ is commonly known by the domain name even if he does not have a trade mark in it. A famous example of this would be the case where a student named Mike Rowe registered a website under the name mikerowesoft.com and was sued by Microsoft. They eventually settled the case for, among other things, an Xbox. The domain name is being used for legitimate, non-commercial and /or fair purposes and there is no intention to use the domain name for profits or to deceive the public. An example of this would be if the domain name was registered to profess their love for you. So, iloveali.com is not cybersquatting but ali.com.my might be. The list provided by MYDRP seems to indicate that as long as there is no intention to profit of someone else’s trade mark, then cybersquatting does not happen. If I do manage to prove cybersquatting, can I get damages? The answer is no. MYDRP states that there are only two remedies. The first would require the cybersquatter to transfer their domain name to you and the second is requiring the cybersquatter to delete their domain name. The MYDRP does not allow for there to be any other remedies such as claiming for damages so you might be a little disappointed. If you are unhappy with the MYDRP proceedings or want to take the case to court, you are allowed to do so but you must provide MYNIC with the documentation indicating that you have chosen to bring the issue to court or through any alternative dispute resolution mechanism. If you fail to provide MYNIC with such documents, then they would proceed to implement the decision from the MYDRP proceedings. This is found in clause 14.3: “If you are not satisfied with the decision of the Panel, you may commence a Court action or any alternative dispute resolution process in respect of the subject matter of the Proceeding and in so doing, you must provide us with official documentation pertaining to the Court action or the alternative dispute resolution process, as the case may be, as evidence of the same. This must be done within ten (10) Working days from the date the Provider informs us of the Panel's decision. If you do not do so within the said time period, we will proceed to implement the decision of the Panel above...” [READ MORE: How does Malaysia’s copyright laws protect me?] One sec. What if the cybersquatter isn’t from Malaysia? Depending on how you choose to bring an action, you might be subject to the MYDRP or the Uniform Domain-Name Dispute-Resolution Policy (“UDRP”). In essence, the requirements to prove cybersquatting under the UDRP is the same as that under MYDRP. The difference is that the action would proceed through the international arbitration system created by the Internet Corporation of Assigned Names and Numbers (“ICANN”). Several international arbitration centres that provide UDRP proceedings include the Asian Domain Name Dispute Resolution Centre (which the KL Regional Centre for Arbitration is a part of) and the World Intellectual Property Organization. Similar to MYDRP, if you are unhappy with the decisions of the UDRP, you are allowed to bring another case under the local laws, which in our country, would be through MYNIC, using the MYDRP or through court proceedings. Laws regarding the internet are still being discovered every day and it is pretty heartening to see that Malaysia is making sure that its citizens do not fall prey to unscrupulous cybersquatters by adopting the international standard to resolve such disputes."
"A lawyer asked his client to google a legal term. He immediately regretted it If you’ve ever been bombarded with jargon you didn’t understand, you already know how it feels like to read a document chock full of legal terms. There are already the fiendish Latin terms, then you also have those words that have different meanings in law from normal everyday English. That makes law complex even for those who can say their “England very powderful”. Sometimes, lawyers have to explain legal terms to their clients. With Google around these days, you can find a lot of explanations online just by searching for them. But this doesn't always work for law… A lawyer asked a confused client to Google something she didn't understand, and Google confused her even more. We also found 4 other legal terms you might not want to trust Google to explain to you… We'll start off with the true story first, then go on to the other legal terms we found with weird image search results. 1. Common Seal What Google Images shows A lawyer shared this funny story of a confused client on Facebook. Apparently the client had a little misunderstanding... What it normally means Like the confused client above, a seal is usually understood as the furry little animal you find in the Arctic. Some people also think of the wax seals with a logo usually used to seal some letters. Image from designerstips What it means in law A company’s common seal is actually a stamp containing the company’s name and registration number. It’s optional under Section 16 of the Companies Act 2016, but it’s normally used on official documents such as share certificates and contracts signed by the company. 2. Assault and Battery What Google Images shows Ok, so Google got this one right. But the puns are still funny. What it normally means A lot of people take assault and battery to both mean the same thing - hitting someone or beating them up. We also normally associate “battery” with electrical batteries, which leads to a lot of puns on the internet, like this one... Image from imgur What it means in law “Assault” is a wrong most simply explained as actions or words that threaten someone with harm. This is one of those words that has a different meaning in law from normal English, which confuses the heck out of people. Law is already confusing enough, now you could end up saying the same words but mean different things?? !@#$% “Battery” on the other hand, basically refers to non-consensual touching. Usually this is when someone is given a slap out of nowhere for example, but in extreme cases (like if you’re being harassed), mere touching can get you charged with battery. You could say this law teaches harassers to be batter people. 3. Alienation What Google Images shows Top result is the PS4 game Alienation. Did a good job with their SEO didn’t they? What it normally means We usually understand alienation as that lonely feeling, that you’re being left out and excluded. Maybe because you pulled a really bad joke last week, or you had a bit of snot on your face when you turned up to a party one time… What it means in law Alienation in law is usually referring to “alienation of land” under Section 76 of the National Land Code. Land in Malaysia belongs to the State, and their selling or renting the land is called “alienation”. Thankfully, it's not sold to an actual alien nation from Mars. 4. Tort What Google Images shows Cakes, cakes, and more cakes. Apparently “tort” is Polish for “cake”. What it normally means It’s not a familiar word to most Malaysians (unless you’ve learnt a bit of law) because it’s the French word for “wrongdoing”. Maybe someone just spelled ""tart"" badly. What it means in law A tort is what the law calls a wrongdoing which you can sue for compensation. It’s usually to do with annoyances and accidents like practicing the drums at midnight everyday, posting lies about someone on social media, or a car crash. Speaking of which, if you consider upskirt recording a tort, you might not be tort-ally wrong. 5. Privy What Google Images shows Yep, it’s one of those outhouse toilets where you probably don’t have proper sanitation. It's privy disgusting. What it normally means Malaysians don’t normally use this word, but some of you will understand this word to mean “toilet”. The other common meaning is whether you are in the know - whether you are “privy to this information”. What it means in law “Privy” in law usually refers to privity of contract (Tweddle v Atkinson 1861). If someone is “privy to a contract”, it means they are a party to a contract and have the right to sue on it. Third parties cannot sue even if they stand to benefit. For example, if your parents paid a driving school to give you driving lessons and your driving coach doesn’t show up for lessons, your parents are the ones with the right to sue the driving school, not you. Legal terms are sometimes necessary It’s frustrating when lawyers are difficult to understand because of all the terms they use. These terms usually mean very specific things that if explained differently, runs the risk of being misunderstood, or even inaccurate in law. This has little effect on normal everyday life, but could mean the difference between winning and losing a court case. That doesn’t mean that law terms should stay incomprehensible for the average Malaysian, but we should at least know why they exist in the first place."
"Are you a Malaysian freelancer who's NOT getting PAID!? Here's what you can do. Given how pricey the cost of living is these days, some of us are no strangers to looking for extra income on the side. This may come in the form of looking for passive income, working a second part-time job or freelancing. Freelancing is the preferred form of additional income (or even primary income for some people) as it offers the most flexibility. However, this advantage might actually be its biggest problem as well. Given how flexible it is, most freelancers accept jobs without proper contracts other than verbal agreements or text messages. This may lead to a situation where some freelancers end up not getting paid because their contact person has disappeared or because the company claims that you did not complete the task as per instructions (even though you did). For the most part, the greatest fear for any freelancer is not getting paid. The avenues you can take to ensure you get paid actually depends on whether the law views you as an employee or a freelancer. Okay, so how do I know if I am an employee or freelancer? In most situations, whether or not you are an employee or a freelancer might be quite clear cut. However, there may be situations where it would not be as clear. This is where you need to look at whether you have a contract of service or a contract for service. If you are thinking that the only difference is in the use of words, you might be in for a shock. There is actually a huge difference between the phrases “contract OF service” and “contract FOR service”. Contract of service is your typical employee-employer relationship and it is protected under the Employment Act 1955 (“EA 1955”). Section 2(1) of the EA 1955 defines a contract of service as an agreement (in any form) where you both agree to an employer-employee relationship. Section 2(1) Employment Act 1955: “”contract of service” means any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as an employee and that other agrees to serve his employer as an employee and includes an apprenticeship contract;” This means that when you are employed, you have a contact of service and you are entitled to all the benefits provided to you under the Employment Act. A contract for service, on the other hand, is what you have when you are providing a service to someone else. There is no employer-employee relationship between you and the person that you are contracting with. An example of contracts for service is the provision of cleaning services or security services. It may also include, as you guessed it, freelance work. It goes without saying that without an employer-employee relationship, you would not receive certain benefits such as EPF and SOCSO. Just because you think you are freelancer, doesn’t mean that you are actually a freelancer Have you ever been in that situation where you think that you are someone’s boyfriend but thennnnn...you find out that you are not. The same goes for being an employee or a freelancer. There might be situations where you think you are a freelancer (or an employee) only to find out that you are actually not one. This is because the law doesn’t look at the label you give yourself but it looks at the substance of your relationship with your boss. The courts would have to decide whether or not you had a contract of service or a contract for service by applying certain tests. Currently, there are actually six different kinds of tests: 1. Control test 2. Independence test 3. Integration test 4. Mixed test 5. Economic reality test 6. Mutual obligation test We would not be going into a detailed explanation for all the tests above as it is not very relevant to the subject at hand but we will do so in a future article. So, assuming the law finds that you are an employee, you can take action against your employer through the Employment Act (if you are earning below RM2,000) or through your employment contract in Malaysia’s Industrial Court. It is also a point to note that the Employment Act only applies to Peninsular Malaysia. However, if you are a freelancer, the next thing you would want to know is... What happens if I get cheated while working on a freelancing project? Here is where you get worried, right? If the Employment Act or Industrial Court doesn’t protect you, then what would? The answer is… your contract. Most freelancers do not have contracts but you should consider drawing up a simple one or at the very least, to have certain important points down in writing. This is because you can rely on your contract to sue for breach of contract. Regardless of whether or not you are a freelancer or an employee, your contract would always be your most valuable weapon (or shield) in case of any disputes. Before you begin any work for anyone who is hiring you for freelance services, be sure to agree on core terms such as how much would they pay you, how they would pay you (whether upon completion of the project or by completion of certain stages of the project. It might even be worthy to discuss methods of payment such as by cheque or transfer) and how the work would be carried out. If possible, at least try to have this in email as any form of writing is better than nothing in court. Every freelancing job would have its own needs and customisation so it is best to be sure to negotiate well, have a contract written down (oral contracts can be formed but it might be more of a hassle to determine who is telling the truth without written evidence). Also be sure to always read your contracts before signing them because you can’t argue that you didn’t read the contract and therefore, you are not bound by it. [READ MORE: Is a promise legally binding in Malaysia?] [READ MORE: What happens when you sign a contract without reading it in Malaysia?]"
"How does Malaysia ensure that its buildings are safe to use? The recent fire at a local religious school located in Jalan Datuk Keramat has shocked the Malaysian public. Initial news reports have shown that the school was operated before it had its permit approved by the local authorities but a recent update stated that the fire was as a result of several youths setting fire to the school. However, local authorities stated that if the school had adhered to proper procedures, they would have been advised to use hinged grilles and not fixed ones in order to allow the students an avenue of escape in case of a fire. Aside from the recent spike in news reports about deadly fires, including the one in Pudu’s famous Wai Sek Kai and the most recent fire in a religious school in Klang, there are also disasters caused by latent defects in the building or through more permanent forms of renovations – resulting in collapse or falling debris like what happened in Port Dickson when the ceiling of a hotel collapsed on their unsuspecting guests. So with all that in mind, the question of the day is, how does Malaysia ensure that its buildings are safe to live /work in? First of all, buildings in Malaysia MUST be certified before they can be used The Certificate of Compliance and Completion (“CCC”) used to be known as the Certificate of Fitness for Occupation (“CFO”) but was replaced in 2007 in order to increase efficiency and reduce red tape bureaucracy. The major change that was implemented then is that the CCC would be issued by private bodies such as architects, engineers and building draftsmen instead of the local authority. In turn, these architects, engineers and building draftsmen are known as the principal submitting person (“PSP”) and they are subject to certain duties and responsibilities. Given that this change was implemented ten years ago, this article would focus on the issuance of the CCC and not CFO. So, first off, what does the CCC even do? The CCC is essentially meant to indicate that the building is now safe to be lived in and used. Depending on where you live, the issuance of the CCC would have to fulfil certain requirements imposed by the local authority. These requirements would be carried out by the PSP and typically include, among other things, submitting the building plans for approval, supervising the construction, ensuring compliance with the technical conditions imposed by the local authority. An example of the duties of the PSP can be found in section 70(21) of the Street, Drainage and Building Act 1974 (“SDBA 1974”) which was amended in 2007 by the Street, Drainage and Building (Amendment) Act 2007 (“SDBAA 2007”): “Before the issuance of a certificate of completion and compliance, it shall be the duties and responsibilities of the principal submitting person to- (a) supervise the erection of the building to ensure that the erection is in conformity with the approved plans and the requirements of the provisions of this Act or any by-laws made thereunder; (b) ensure that the building has been duly constructed and completed in conformity with the approved plans and the requirements of this Act or any by-laws made thereunder and that all technical conditions imposed by the local authority has been duly complied with; and (c) ensure that the building is safe and fit for occupation.” While Section 133 of the SDBA 1974 then tells us that there is an obligation on the state authority to pass by-laws (a by-law is a regulation made by the local authority) to regulate how CCCs should be passed, all states in Peninsular Malaysia have essentially adopted the same procedures in order to ensure that the issuance of CCC is streamlined in Malaysia. This is known as the Uniform Building By-Laws. Unfortunately, we were unable to find a copy of said by-laws online but a discussion on the relevant forms and procedures can be found on the Real Estate and Housing Developers’ Association Malaysia’s website. What does a building need to get certified? Aside from adhering to the building plans and submitting the proper plans, the CCC is only issued after six services have been confirmed. These services are: The confirmation of electrical supply from TNB The confirmation of water supply from the relevant water authorities The confirmation of connection to sewage treatment plants or mains by the Jabatan Perkhidmatan Pembentungan The clearance on machinery and lifts from Jabatan Keselamatan dan Kesihatan Perkerjaan (if applicable) The clearances for active fire fighting systems (except for residential homes not more than 18m high) from the Bomba The confirmation on roads and drainage The above shows that Malaysia has stringent requirements before a CCC can be issued and the building regarded as safe to live in and occupy. The penalties for failing to observe the proper guidelines for issuing the CCC are also severe in order to ensure that all the proper rules are complied with. For example, it is an offence to occupy a building before a CCC has been issued or if the CCC is issued without the proper forms. A full list of offences can be found in section 70(27) of the SDBA 1974, read with the 2007 amendments. The local authority is also still involved in the process of issuance as they can conduct random checks on the building process and direct the PSP to withhold issuing the CCC if they notice any issues that need to be fixed. Section 70 SDBA 1974 (in part): “(20) No certificate of completion and compliance shall be issued except by a principal submitting person in accordance with the time, manner and procedure for the issuance thereof as prescribed by this Act or any by-laws made thereunder. (23) If it appears to the local authority that a noncompliance with the approved plans and provisions of this Act or any by-laws made thereunder by the principal submitting person has occurred in the erection and construction of the building, the local authority may issue to the principal submitting person— (a) a notice in writing, requiring compliance within the period specified in the notice, as the local authority thinks fit, in order that the noncompliance be rectified; and (b) a directive in writing to withhold the issuance of the certificate of completion and compliance until such non-compliance has been rectified.” If you are curious about how heavy the punishments are, section 127 tells us that there is a RM10,000 fine and an additional RM500 for every day that the non-compliance goes unfixed after getting convicted for general penalties. As for offences specifically related to the issuance of the CCC (section 70(27)), the fine can go up to RM250,000 or a maximum of ten years in prison. My main worry is about fire – how does Malaysia ensure its building have proper fire escapes etc? As mentioned above, the CCC is only issued after, among other okays, the Bomba has given their okay. Aside from the clearance from our Abang Bomba for the CCC, there is also a separate law governing the issuance of a fire certificate. This is where the Fire Services Act 1988 (“FSA 1988”) comes into play. Section 28 of the FSA 1988 tells us that every premise (except single private dwellings or public religious worship areas) requires a fire certificate that has be renewed every year. All applications for a fire permit has to be made to the Director General of Fire and Rescue who will then carry out an inspection on the premises in order to make sure that there is adequate life safety, fire prevention, fire protection and fire-fighting facilities. What counts as adequate life safety, fire prevention and fire-fighting facilities are not specified in the Act as it depends on what premises are being inspected. For example, if it is a restaurant being inspected, the Director General would probably want to see fire extinguishers and a proper “KELUAR” sign. If it is was an apartment building, the Director General would probably look for proper fire escapes such as staircases and the proper fire barrier doors. So if the premises are missing adequate measures, the Director General can serve a notice on the person who applied for a fire certificate and refuse to issue the certificate until all the problem areas have been resolved. Section 28 FSA 1988 (in part): “(4) Where an application for a fire certificate has been duly made, the Director General shall cause to be carried out an inspection of the designated premises, and on being satisfied that there exists adequate life safety, fire prevention, fire protection and fire-fighting facilities… (5) Where the Director General, after causing to be carried out under subsection (4) an inspection of the relevant premises, is not satisfied that there exists such adequate facilities in relation to the use of the designated premises as aforesaid, he shall, by notice served on the applicant, inform him of the requirements to be complied with within a specified time before the fire certificate can be issued to the applicant.” Further to that, the Director General is allowed to conduct inspections at any time to ensure that the premises have not changed in a way that makes the facilities inadequate. Any major changes to the premises also has to be notified to the Director General. Any failure to give notice before starting renovations is considered an offence. So, for example if you have received the fire permit for your restaurant and decide to carry out some renovations, you need to inform the Director General of your plans before you start hacking away. These provisions can be found in section 32 of the FSA 1988. It is also an offence to not have a fire certificate and the punishment for it is a RM5,000 fine or up to three years in prison. This is found in section 58: “Any person guilty of an offence under this Act for which no penalty is expressly provided shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both.” The Director General also has the power to carry out inquiries into fires in order to determine how the fire started and what measures were taken in order to extinguish the fire. He will then make recommendations on how to prevent and combat fires better. Here are some practical steps you can take to ensure your safety The Fire Prevention Council in Malaysia has recommended that homes should install smoke detectors and extinguishers and these are measures that you could easily adopt. Beyond that, the UK government has several handy guides on how to make your home safe from fires and you can read about it here. As a brief overview, here are some general fire safety tips that you can practice in your home: Invest in a fire extinguisher Install a smoke alarm Use hinged grilles on your windows instead of fixed ones. This provides an additional escape route if you can’t reach the door Always try to take note of where the fire exits are located when you’re in a building for the first time To avoid disasters which are caused by latent defects in the building or through more permanent forms of renovations, always be sure to ask for the CCC from your developer or landlord and ensure that they have properly applied for and maintained a fire permit."
"Isu Perlindungan Orang Terpinggir Secara Dalaman (IDP) di Malaysia THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect ASKLEGAL's position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article as it has not been verified by a practicing lawyer. oleh Dr. Rohani Abdul Rahim, Kamarudin Abu Bakar & Muhammad Afiq Ahmad Tajuddin | rar@ukm.edu.my Perbandaran dan perlaksanaan dasar-dasar pembangunan yang intensif dan besar-besaran sering di kaitkan dengan berlakunya peminggiran warga setempat. Sebagai negara yang memicu kearah negara maju, Malaysia tidak terlepas daripada usaha menjana dan melaksanakan dasar-dasar pembangunan yang meluas dalam aspek infrastruktur, projek mega, dan pengenalan projek-projek pembangunan yang memenuhi keperluan lapisan masyarakat tertentu tetapi sebaliknya memiggirkan sekelompok orang yang lain. Orang Terpinggir akibat Pembangunan Dalaman (Internal Development Induced People) sukar di jangka jumlahnya kerana ia berlaku dalam situasi cepat, terdesak dan kurang kefahaman terhadap undang-undang. Mereka terpinggir atas nama kemiskinan, kurang pendidikan, rasisme, golongan minoriti, golongan yang lemah seperti kanak-kanak, wanita, orang kurang upaya (OKU), berpenyakit, warga tua dan seumpamanya. Orang terpinggir ini biasanya akan cuba memulihkan diri dengan mengikuti arus pembangunan semampu boleh untuk keluar daripada kelompok ini. Namun begitu ramai pula kini yang memerlukan bantuan untuk keluar daripada perangkap viktimisasi ini. Bantuan ini boleh jadi dalam bentuk sokongan ekonomi, kemudahan awam dan akses kepada Perundangan. Malaysia mempunyai 31.1 juta rakyat, 98.0% adalah warganegara dan 2.0% merupakan migran (antarabangsa dan nasional). Daripada jumlah migran, 88.7% (19.4 juta) merupakan Migran Dalaman dan 11.3% merupakan Migran Antarabangsa. Menurut servei penghijrahan Migran Dalaman (2015-2016) (Laporan Survei Migrasi 2016; Portal Rasmi Jabatan Statistik),dua pertiga daripada 63.9% migran berlaku dalam sesebuah Negeri dan 24.9% adalah merentas negeri lain. Misalnya, Negeri Selangor merupakan negara penerima migran yang utama (19.4 juta). Daripada jumlah itu (4.2% berhijrah daripada luarbandar ke bandar, manakala daripada bandar ke bandar 73.6%). Kecenderungan penghijrahan ke bandar-bandar di sebabkan sebahagian besar wilayah sudah berstatus bandar kerana pembangunan yang pesat. Ini menyebabkan penduduk bandar terpaksa bertahan secara ekonomi untuk kekal di wilayah berkenaan kerana beberapa alasan seperti mengikut keluarga (46.5%), Persekitaran yang kondusif (21.6%), kehendak pekerjaan (21.4%), Perkahwinan (5.7%), Pendidikan (3.7%) dan lain-lain (1.1%). Pada akhir 2016 jumlah penduduk dunia yang dalam pemerhatian UNHCR ialah 67.7 juta orang (65.6 juta terdiri daripada orang yang di pinggir secara paksa seperti pelarian, pencari suaka politik dan orang yang terpinggir secara dalaman), termasuk orang yang tidak di bawah mandat perlindungan UNHCR (seperti orang tanpa negara dan pemulangan orang). Instrumen Panduan Pembangunan bagi orang terpinggir secara Dalaman, (National Instruments on Internal Displacement - A Guide to their Development (Ogos,2013)) memberi panduan bagi pembentukan polisi, strategi dan Perundangan kepada pihak berkuasa nasional. Bagi memastikan perlindungan hak-hak IDP UN Guiding Principles on Internal Displacement (Guiding Principles)(1998) menjadi alat yang penting sebagai panduan. Panduan IDP 2013 menggariskan kepentingan instrumen IDP atas prinsip; Kerajaan sebagai negara berdaulat memiliki tanggungjawab untuk menangani IDP Orang terpinggir mempunyai hak kepada perlindungan dan bantuan yang berkesan Negara mempunyai tanggungjawab di sisi perundangan antarabangsa dan serantau untuk melindungi dan membantu IDP Instrumen nasional boleh meningkatkan kebolehpercayaan dan kredibiliti respon kerajaan terhadap IDP dan membantu kerjasama antarabangsa dan domestik berkaitan masalah peminggiran dalaman Instrumen nasional boleh di acuankan untuk merespon kepada sesuatu situasi peminggiran tertentu, dan (vi) melalui pembangunan instrumen di peringkat nasional, respon kerajaan kepada IDP boleh di buat secara lebih efisien dan berkesan. Jabatan Kebajikan Masyarakat Malaysia menguruskan perlindungan IDP dengan mengadakan program social outreach untuk mendekati masyarakat terpinggir, daif, miskin dan yang sukar mendapat bantuan termasuk warga emas, kanak-kanak, orang kurang upaya, orang papa, orang yang di timpa bencana. Bagi setiap usaha penjagaan dan perlindungan ini terdapat dasar-dasar khusus setiap satunya mengurus kebajikan semua orang terpinggir secara dalaman. Wujud Peraturan dan Kaedah yang digunakan sebagai panduan pengurusan IDP, antaranya; PERATURAN – PERATURAN Peraturan-peraturan Jawatankuasa Kebajikan Budak-budak (Perlembagaan dan Kewajipan) 1976 Peraturan-peraturan Sekolah Yang Diluluskan 1981 Peraturan-peraturan Asrama Akhlak 1982 Peraturan-peraturan Taman Asuhan Kanak-kanak (Di Institusi) 1985 Peraturan-peraturan Pusat Jagaan 1994 Peraturan-peraturan Pasukan Perlindungan Kanak-kanak (Prosedur dan Amalan) 1995 Peraturan-peraturan Kanak-kanak (Borang dan Daftar ditetapkan) 2007 Peraturan-peraturan Kanak-kanak (Tempat Selamat) 2007 Peraturan-peraturan Kanak-kanak (Orang yang layak dan sesuai) 2009 KAEDAH – KAEDAH Kaedah-kaedah bagi Pusat-pusat Pemulihan Cacat Akal 1977 Kaedah-kaedah Pengurusan Rumah-rumah Pesakit Melarat 1978 Kaedah-kaedah Workshop Terlindung 1979 Kaedah-kaedah (Rumah Kebajikan) Orang-orang Papa 1981 Kaedah-kaedah bagi Pengurusan Rumah Orang Tua 1983 Kaedah-kaedah Perlindungan Wanita dan Gadis (Tempat Perlindungan) 1982 Pegawai Kebajikan Masyarakat yang diwartakan di bawah Jabatan ini pula mempunyai kad kuasa bagi menjalankan kuasa-kuasa yang diberi mengikut peruntukan akta-akta berikut: Akta Kanak-kanak 2001 Akta Taman Asuhan Kanak-kanak 1984 Akta Pusat Jagaan 1993 Jabatan Kebajikan Masyarakat juga di berikan bidang kuasa mengurus perkara-perkara yang di gariskan dalam beberapa akta utama,seperti: Akta Pengangkatan 1952 [Akta 257] Akta Pendaftaran Pengangkatan 1952 [Akta 253] Akta Penjagaan Budak 1961 [Akta 351] Akta Antipemerdagangan Orang 2007 [Akta 670] Akta Keterangan Saksi Kanak-kanak 2007 [Akta 676] Akta Kaunselor 1998 [Akta 580] Akta Kanun Tatacara Jenayah [Akta 59] (Bagi bidang perundangan lain wujud perundangan khusus lain yang mengatur pengurusan hak IDP seperti Kanun Tanah Negara, Akta Pengambilan Tanah,1960 (Akta 486) dan seumpamanya) Kesimpulannya, perhatian khusus perlu bagi menghentikan wujudnya IDP ditengah-tengah perbandaran dan pembangunan. Langkah mengatasi masalah IDP secara jangka pendek perlu di gantikan dengan satu strategi, dasar dan panduan perlindungan secara perundangan supaya IDP tidak di salah ertikan sebagai gagal untuk memenuhi tuntutan pembangunan negara. Sebaliknya, kegagalan mengsejahterakan rakyat perlu di lihat sebagai suatu liabiliti di atas kegagalan menjalankan tanggungjawab paternalistik (penjaga) terhadap seseorang warganegara. Tanggungjawab penguatkuasaan di bawah pelbagai perundangan menuntut komitmen yang tinggi ke atas pihak pentadbir negara. Ketiadaan perundangan khusus berhubung tanggungjawab ini menyebabkan sukar untuk menghasilkan perlaksanaan dan penguatkuasaan berkesan dan pada suatu tahap boleh menimbulkan persoalan ketidak berkesanan atau liabiliti dalam konteks hubungan kontrak sosial dan undang-undang lazim. Dengan itu, garis panduan di peringkat Antarabangsa boleh membantu dalam pembentukan satu dasar dan garis panduan yang bersepadu dengan mengambil kira keperluan antarabangsa dan nasional agar Hak Asasi IDP boleh di berikan selaras dengan kehendak perundangan. Dr. Rohani Abdul Rahim, Kamarudin Abu Bakar & Muhammad Afiq Ahmad Tajuddin Fakulti Undang-undang Universiti Kebangsaan Malaysia Tel: 03-89216374 Email:rar@ukm.edu.my"
"Are there laws that can stop North Korea from testing missiles? You’ve probably heard the news that North Korea fired a ballistic missile over Japan on 29 August 2017. Then, on 3 September they also successfully tested their most powerful hydrogen bomb. Then, on 15 September, they sent another missile flying across Hokkaido, Japan in the morning. Image from zerohedge The conflict between the United States and North Korea about missiles and nuclear weapons is actually not a new development; it has been going on as far back as 1985. With the United Nations in place and superpower countries who are calling for North Korea to stop their missile testing, there should be some international laws in place which can stop them, right? The answer is: yes there are laws, but whether they do their job is controversial, as you’ll see below… :/ International ""laws"" are not really laws Image from ashidadvocates International law is defined by the United Nations as “the law governing the relations between States” (countries). There are several types of international law which we won’t go into here, but basically some types are followed by countries only if they consent to it, such as treaties (basically an agreement between countries). And some others are rules generally accepted by most countries, such as not committing “crimes against humanity”. The problem is that with international law, countries are not like normal citizens which submit to a higher power that enforces the law. Who is to say which country is the higher power? Countries are all what we call “sovereign”, which means that each country has power over its own territory and domestic affairs. No other country has any say in them. This also means that if a country chooses not to follow any international laws (especially treaties), the country can do whatever it wants. Treaties against nuclear weapons are in place, but… Image from conservationmagazine The United Nations set up two major treaties to stop countries from making nuclear weapons and ballistic missiles. These are the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), and the Hague Code of Conduct against Ballistic Missile Proliferation (HCOC). North Korea signed the NPT back in 1985, but withdrew from it in 2003. Further, they did not sign the HCOC. Because of how a country must agree that it will follow an international law, North Korea can basically do whatever it wants. Even if North Korea did sign these agreements, there is no particular country that can bring it to justice short of invading North Korea and then capturing its leaders - which is another complication in itself. Invasions to control another country’s decisions is a disrespect of the “sovereignty” we mentioned earlier. Put in oversimplified terms, if a country does not invade with the agreement of most other countries, they too could face global stigma. If you don’t respect one country’s sovereignty, how can other countries expect you to respect theirs? This generally makes countries hesitant to declare war, because they can also get slapped with what are known as sanctions (think of them as restrictions and penalties). The United Nations Security Council can vote to take action Image from empiremunc The United Nations Security Council is a body of 15 countries that are responsible for maintaining international peace and security. They each have one vote when discussing matters of global concern, such as North Korea’s nuclear weapons development. When dealing with such problems, they usually call for talks between the aggressor, apply economic sanctions or take peacekeeping measures (such as setting up the Korean Demilitarized Zone), and can even vote to take military action (such as invading and bombing). Once the Security Council comes to an agreement, they pass what is called a Resolution. Sanctions are basically limits on what kinds of goods a country can trade with other countries. These are meant to put pressure on the country to comply with the UN’s demands. A number of Resolutions have been passed against North Korea in the past. While other countries may cooperate on the Resolution, the problem again is that North Korea doesn’t have to follow them, which is clear from their continued missile and bomb tests. This Bloomberg report also says that the Russian President Vladimir Putin doesn’t think more sanctions will stop North Korea from developing nuclear weapons. His reasoning is that while North Korea may have to survive on little because of sanctions, they won’t stop their nuclear program unless they feel safe. In the end, international law can’t stop North Korea alone As mentioned before, international laws are in place that prohibit certain activities like nuclear bomb tests. But when it comes to enforcing them, little can be done without escalating to actual threats of war. This is where sanctions usually come in to put the pressure on. Unfortunately, they tend to put pressure on the citizens, which is why sanctions are not well-liked. In the case of countries where leaders tend to care more about maintaining relationships and their reputation among other countries, sanctions might work better. But against isolated dictators who don’t really bother, sanctions may not get them to answer to international laws…"
"Are ambulances allowed to beat red traffic lights in Malaysia? Some of our readers have asked us whether ambulances can beat traffic lights in an emergency. One reader brought an incident that happened in Penang to our attention. An ambulance ran a red light and collided with a car that couldn’t stop in time, which caused the ambulance to crash into a group of motorcyclists in the opposite lane. You can see the video here. Do emergency vehicles like ambulances, fire trucks, and prison transports have special status? What should drivers do to make way for them? Here's what we found. Emergency vehicles have priority over everyone else Image from themalaymailonline According to Rule 9 of the Road Traffic Rules 1959, emergency vehicles on duty have the right of way over all other traffic. (This law is not available in the public domain, so we can’t link it. Sorry!) However, this doesn’t mean they don’t have to follow any rules. Rule 9(1) states that:- They must warn others that they’re approaching by sounding a siren, bell, or two-tone horn. They are still bound by their legal responsibilities and traffic laws on dangerous, careless, or inconsiderate driving. So if when an ambulance is rushing a patient to the hospital, it must do so safely, otherwise it will also be subject to the same laws as normal vehicles. According to the Health Ministry secretary-general Datuk Seri Dr Hasan Abdul Rahman, ambulances are not allowed to beat traffic lights even during an emergency, they still have to obey traffic rules. The sirens are only an indication that they should be given priority of passage. “The drivers should be told that even if they have the lights and the beacon switched on, they would still have to obey traffic rules,” Dr Hasan as quoted by The Star It’s an offence to to get in their way Rule 9(2) says that we drivers of normal vehicles must make way by going as close as possible to the sides of the road and stopping to let emergency vehicles pass. This is also given effect through Rule 24 of the Highway Code, which says that drivers must give way to emergency vehicles with their siren turned on. Breaking the rules of the Highway Code is not an actual crime, but the fact that you broke a rule can be used as evidence against you in court! Even if it’s not a law, we should still make way for emergency vehicles Emergency vehicles sometimes have to rush to the scene because a life is at stake. For us, helping them could be as simple as moving our vehicles aside to let them pass. After all, we’d want others to do the same if we were in an emergency. As for ambulances who run red lights, if they choose to do so, it’s still our duty to make sure that we drive safely. Our Highway Code also tells us under Rule 10 that even when other drivers flaunt the rules, it’s wiser for us to stay calm and play it safe:- “The courteous motorist will show consideration to all other road users whether drivers, cyclists or pedestrians. He controls his temper and obeys traffic regulations. You must not allow rudeness or stupidity of other road users to affect your own good manners, judgement and conduct when driving.”"
"Mengutuk orang di laman sosial  boleh mengakibatkan masa dalam penjara [Artikel asal ditulis dalam Bahasa Inggeris. Click here for English version] Lepas makan tengah hari, anda berjalan ke kereta untuk balik ke ofis dan inilah apa anda nampak. Pemandu kereta ini bukan sahaja tidak meninggalkan nombor telefon bimbit di atas papan pemuka, bila anda membunyikan hon kereta, pemandu tersebut tak dikelihatan langsung di sekitar keretanya. Setelah menunggu selama 15 minit, akhirnya pemandu kereta tersebut berjalan ke keretanya dengan muka yang kelihatan tenang dan tanpa rasa bersalah. Apabila anda mengambil keputusan untuk berhadapan dengan pemandu yang tidak bertimbang rasa ini, jawapannya adalah: “apesal plak? Takleh tunggu ke?” Pada ketika ini, anda telah mengguna setiap titik kesabaran untuk tidak menyerang pemandu ini. Dengan kemarahan yang mendidih, anda mengambil gambar pemandu dan keretanya yang menghalang kereta anda untuk berkecoh di laman sosial supaya satu dunia dapat melihat perlakuan yang jijik ini. Tapi…. Adakah ini keputusan yang terbaik? Ramai antara kami yang menggunakan laman sosial untuk mengadu tentang bos yang teruk, teman wanita dan lelaki yang tidak munasabah, pemandu yang tidak bertimbang rasa, dan banyak lagi. Tetapi jika anda tidak menyedari apa yang boleh dan tidak boleh disebut, tingkah laku ini mungkin sahaja akan menimbulkan kesulitan dengan pihak berkuasa. Inilah apa yang berlaku kepada tiga orang murid di MMU yang telah menyebarkan berita yang tidak menyenangkan di laman Facebook MMU confessions. Perbuatan ketiga-tiga murid ini diadu dan sekarang dibawah siasatan pihak polis di bawah Kanun Keseksaan (Penal Code) untuk defamasi di Seksyen 499. JIka begitu, apakah maksud defamasi dan bilakah komen dan status anda dianggap sebagai defamasi? Penjelasan ringkas untuk maksud defamasi adalah pernyataan yang digunakan untuk memburukkan reputasi orang lain. Mangsa defamasi ini boleh membuat pengaduan untuk dibayar pampasan. Bagaimanakah anda membuktikan aksi defamasi ini? Menurut kes Ayob Saub v TS Sambanthamurthi [1989], tiga elemen ini mesti dibuktikan: Terdapat bahan unsur berfitnah (reputasi orang tersebut diburukkan di alam awam) Kandungan bahan tersebut adalah tentang mereka atau mempunyai ciri-ciri yang mengenalpastikan orang tersebut (termasuk kata-kata, gambar, lagu, dan lain-lain) Bahan itu diterbit atau tersebar ke orang lain, selain orang yang berkenaan Maksud tersirat atau “innuendo” juga dianggap defamasi. Contohnya, jika anda berkata “Jerry ni memang minat pergi tempat urut X” dan tempat urut X tersebut memang terkenal dengan “perkhidmatan istimewa”, pernyataan anda boleh dianggap defamasi. Walaupun tidak dikatakan dengan langsung, pernyataan tersebut senang ditafsirkan sebagai Jerry adalah seorang yang mempunyai “hobi yang menarik”. Tidak kisah sama ada anda menyebut nama mereka atau tidak… Tanggapan orang ramai adalah defamasi tidak berlaku jika nama tidak disebutkan. Ini mempunyai kebenarannya tetapi jika pernyataan tersebut mempunyai maklumat yang boleh mengenal pasti individu itu, ini masih boleh dianggap sebagai defamasi. Contoh-contohnya: “Editor yang tinggi dan tampan daripada AskLegal” – AskLegal hanya mempunyai satu editor “Lelaki penjual mee daripada Kedai X yang selalu berteriak pada orang” – Kata-kata anda cukup khusus untuk sesiapa sahaja yang mengunjungi kedai tersebut untuk mengenal individu ini Jika individu tersebut boleh dicam oleh orang lain, ia dianggap defamasi. Jadi… apa lagi yang boleh saya katakan? Ingat lagi garis panduan yang dikeluarkan oleh Suruhanjaya Komunikasi dan Multimedia Malaysia (MCMC) untuk pentadbir kumpulan (admin) di bulan Mei? Garis panduan ini tidak mempunyai kuasa undang-undang, tetapi mereka direka untuk membantu kita mematuhi undang-undang. Banyak yang boleh dikatakan, tetapi ingat mengikuti peraturan. Pada hujung minggu lepas (5 Ogos 2017), terdapat kes buli jalan yang pelik di mana mangsa tersebut menulis posting di forum Lowyat.net dengan fakta tentang apa yang telah berlaku – postingnya sah sepenuhnya (jadi ikutlah contoh individu ini). Secara amnya, ini adalah contoh perkara yang anda boleh dan tidak boleh mengatakan: Perkara yang boleh dikatakan: Kebenaran yang dibuktikan (jika seseorang adalah seorang penjenayah yang disabitkan kesalahan, anda boleh memanggil mereka sebagai jenayah) Komen adil dan jujur ​​anda (tiada niat buruk) Aduan kepada pihak berkuasa (seperti membuat laporan polis, atau melaporkan anak kepada ibu bapa mereka) Melindungi pihak seseorang (cth. Memberitahu kakitangan anda untuk memotong klien X kerana mereka tidak pernah membayar mengikut masa) Perkara yang tidak boleh dikatakan: Khabar angin dan kata bohong Spekulasi mengenai seseorang (cth. “baju-baju dia semua lawa; mesti anak manja orang kaya”) Serangan kepada watak seseorang Tambahan pula, anda juga melanggar 2 undang-undang Biasanya, defamasi adalah kes sivil (tuntutan mahkamah) di mana mangsa menyaman anda untuk pampasan kerana kerosakan terhadap reputasi mereka. Tetapi kerana anda juga tidak mematuhi beberapa undang-undang persekutuan, kerajaan juga boleh memilih untuk mendakwa anda. Undang-undang Pertama - Kanun Keseksaan Seksyen 499 Kanun Keseksaan (Penal Code) menjadikannya penjenayahan untuk memfitnah orang lain: “Sesiapa, dengan kata-kata yang diucapkan atau dimaksudkan untuk dibaca atau dengan tanda-tanda, atau oleh representasi yang dapat dilihat, membuat atau menerbitkan apa-apa perihal mengenai mana-mana orang, yang berniat untuk membahayakan, atau mengetahui atau mempunyai alasan untuk mempercayai bahawa imput tersebut akan merosakkan reputasi dan boleh dikenakan denda orang itu, dikatakan, kecuali dalam kes yang kemudiannya dikecualikan, untuk memfitnah orang itu."" (Diterjemahkan oleh Asklegal, tiada penterjemahan rasmi) Terdapat 10 pengecualian lengkap dengan contoh situasi hidup nyata dalam Seksyen 499 Kanun Keseksaan. Penalti untuk defamasi? Seksyen 500 memerintah sehingga 2 tahun penjara, denda, atau kedua-duanya. Memandangkan bahawa jumlah denda tidak dinyatakan; jadi maksudnya secara teori ia tidak terhad. Setiap kes defamasi adalah unik kepada fakta-fakta kes tersebut dan secara amnya, jika pencemaran nama baik tersebut lebih serius and profilnya lebih tinggi, pampasannya akan lebih banyak. Sebagai contoh, hartawan Tan Sri Vincent Tan telah dianugerahkan RM7 juta terhadap wartawan dalam satu kes atas sebab, sebagai pemilik perniagaan berprofil tinggi, dia akan mengalami kerugian besar jika reputasinya telah digambarkan dengan salah. Undang-undang Kedua - Akta Komunikasi & Multimedia 1998 Selain Kanun Keseksaan, Seksyen 233 Akta Komunikasi & Multimedia 1998 menjadikannya suatu kesalahan untuk menggunakan perkhidmatan rangkaian atau aplikasi untuk tujuan yang tidak berpatutan. Akta Komunikasi & Multimedia 1998 - Seksyen 233 (sebahagiannya): ""(1) Seseorang yang— (a) dengan menggunakan mana-mana kemudahan rangkaian atau perkhidmatan rangkaian atau perkhidmatan aplikasi secara sedar— (i) membuat, mewujudkan atau meminta-minta; dan (ii) memulakan penghantaran, apa-apa komen, permintaan, cadangan atau komunikasi lain yang lucah, sumbang, palsu, mengancam atau jelik sifatnya dengan niat untuk menyakitkan hati, menganiayai, mengugut atau mengganggu orang lain ... melakukan suatu kesalahan."" Ya, ini termasuk menyiarkan ucapan unsur defamasi di media sosial. Penalti bagi kesalahan sedemikian adalah denda sehingga RM50,000, 1 tahun penjara, atau kedua-duanya. Anda juga boleh menghadapi masalah jika berkongsi pos defamasi! Di sinilah bila jadi susah untuk keyboard warriors. Setiap repost atau bahagian pernyataan defamasi adalah penerbitan tambahan, dan setiap individu yang terlibat boleh dinamakan dalam tuntutan mahkamah oleh mangsa, dan dituntut oleh kerajaan juga. Ya, 700 repost bermakna 700 orang boleh didakwa. Ini termasuk sama ada anda seorang pentadbir kumpulan atau pengguna biasa Peraturan ini ditubuhkan pada tahun 1829 dalam kes M'Pherson v Daniels. Mana-mana orang yang menerbitkan penyataan unsur defamasi juga bertanggungjawab untuk memastikan bahawa kenyataan sedemikian adalah benar dan adil, dan akan bertanggungjawab untuk defamasi juga. Mereka tidak boleh mengatakan bahawa mereka hanya mengutarakan apa yang dikatakan orang lain ataupun mereka tidak bertanggungjawab untuk apa yang dikatakan oleh poster asal. Ini kerana mereka memilih untuk berkongsi kenyataan defamasi tersebut. Walaupun bebas bersuara, anda masih tidak patut memfitnah orang lain Kebebasan Bersuara yang dijamin oleh Artikel 10 Perlembagaan Persekutuan tidak mutlak, dan tentunya tidak memberi hak untuk menyebarkan kebohongan tentang orang lain. Peraturan Keemasan sangat sesuai di sini: lakukan kepada orang lain seperti yang anda ingin lakukan pada diri sendiri. Walaupun sifatnya baik untuk memberitahu orang lain tentang penipu supaya mereka dapat berwaspada, tetapi tidak baik juga untuk menyebarkan perkara yang tidak benar tentang penipu tersebut, tidak kira jahat mana individu itu. Dua salah tidak bermakna ada betulnya. Sebelum menyiarkan tentang orang yang buruk lakunya di media sosial, fikirkan akibatnya dan jangan tambah hina dengan fakta anda. Gunakan media sosial secara bertanggungjawab!"
"Is it legal for my boss to make me work on a Malaysian public holiday? Have you ever been caught in that situation where you were looking forward to a public holiday because you and your friends have planned this epic road trip. You get your bags packed, your car gassed and ready to go. As you are bidding your colleagues a cheery goodbye on the eve of that public holiday, your boss steps into the office and announces that the company would not be closed. Work would go on as usual. Devastated, you whip off your party hat and swap it for your painful work hat. If you have ever been caught in such a situation, you would probably have some questions like can my boss even make me work on a public holiday? If yes, what do I get in return – would it be double pay or an additional day off? This article only covers those who are considered employees under the Employment Act 1955 and Peninsular Malaysia (including the Federal Territory of Labuan). The Act defines “employees” as those who are earning below RM2,000 or those (regardless of how much they are earning) who are engaged in certain services such as manual labour or being a domestic servant. To view the full list of services, you can read the First Schedule of the Employment Act. If you do not fit within the definition of an employee as mentioned above, you would not be protected by the Employment Act. Instead, you would have to rely on your employment contract and should you have any disputes about the contract, you would have to bring it to the Industrial Court. In general, the Employment Act can be said to provide the bare minimum benefits that that companies have follow. So, if your company provides you with more benefits than the Employment Act, than those would apply. On the other hand, if your company provides less benefits than what the Employment Act does, the benefits listed in the Employment Act would then apply instead. For example, if the Employment Act states that you are entitled to at least one rest day a week and your company provides you with two, then your company’s conditions would stand. Section 7 Employment Act (in part): “...any term or condition of a contract of service...which provides a term or condition of service which is less favourable to an employee than a term or condition of service prescribed by this Act...shall be void and of no effect...” To start off, every employee is entitled to at least one rest day If your boss has got you working seven days a week, he might be breaking the Employment Act 1955 (""EA 1955""). Section 59(1) of the EA 1955 tells us that every employee is entitled to one rest day a week and this day would be determined by your boss. For most office workers who get more than one day off a week, any additional day off that you get is also considered a rest day under the Act, such as your weekends. Section 59 of the Employment Act: “(1)Every employee shall be allowed in each week a rest day of one whole day as may be determined from time to time by the employer, and where an employee is allowed more than one rest day in a week the last of such rest days shall be the rest day for the purposes of this Part:” “(1B) Notwithstanding subsection (1), the Director General, on a written application by an employer and subject to any conditions he may deem fit to impose, may permit the employer to grant the rest day for each week on any day of the month in which the rest days fall and the day so granted shall be deemed to be the employee’s rest day for the purposes of this section.” However, your boss may apply to the Director General of Labour to grant your weekly rest days on any day of the month. For example, if you were entitled to four rest days a month (for the four weeks in a month), instead of having one day weekly, you might be given four days off in a row on any given day in the month. This situation would typically arise for off-shore workers. What happens if I have to work on my rest day? Unless you are engaged in work that requires you to work continuously for two or more shifts, there are limited situations in which it is legal for your boss to make you work on a rest day. Section 60A(2) provides the scenarios in which your boss can compel you to work on a rest day and to put it in point form, they are as follows: Where there is an actual or potential accident at your work place Where your work is essential to the life of the community Where your work is essential to the defence or security of Malaysia Where there is urgent work to be done to machinery or a plant Where there was a work interruption that was impossible to foresee Where you are a worker employed in an industrial undertaking, carrying out work essential to Malaysia’s economy or any essential services (essential services is listed in the First Schedule of the Industrial Relations Act 1967 and it covers a wide range of services ranging from banking to transport) So, okay. You have been called back to work on a rest day. The next question that would crop up is – am I entitled to additional pay? The answer is yes. How much you would get depends on three different scenarios listed in the Employment Act. Work not exceeding half of your normal work hours: If you are a worker employed on a daily or hourly basis, you are entitled to one day’s pay at the normal rate. If you are a worker employed on a monthly or weekly basis, you are entitled to half the normal rate of pay for work done on that day. How this is calculated will be discussed later on in the article. Work exceeding half but not more than your normal work hours: If you are a worker employed on a daily or hourly basis, you are entitled to two days’ pay at the normal rate. If you are a worker employed on a monthly or weekly basis, you are entitled to one day’s pay at the normal rate. Work exceeding your normal work hours (overtime): If you are working beyond your normal working hours, it doesn’t matter if you were hired on a hourly or monthly basis, you are entitled to a pay of at least twice your normal hourly rate. A little extra information to throw in, if you are working overtime on a normal working day, section 60A(3)(a) provides that you are entitled to a pay of at least one and a half times your normal hourly rate: ”For any overtime work carried out in excess of the normal hours of work, the employee shall be paid at a rate not less than one and half times his hourly rate of pay irrespective of the basis on which his rate of pay is fixed.” Now, we come to the question of the hour… What about working on a public holiday? Section 60D(1) tells us that as employees, we are entitled to a paid holiday on any of the gazetted public holidays (such as National Day, Malaysia Day or the Yang di-Pertuan Agong’s birthday, for example) or any other days that are declared as holidays through the Holidays Act 1951. Section 60D(1): “Every employee shall be entitled to a paid holiday at his ordinary rate of pay on the following days in any one calendar year: (a) on eleven of the gazetted public holidays, five of which shall be—” Despite this, your employer requires you to work on a public holiday, he is allowed to substitute that day with another day off for you. Section 60D(1A): “...Provided that by agreement between the employer and an employee any other day or days may be substituted for one or more of the remaining six gazetted public holidays provided for in paragraph (1)(a): And provided further that the employer may grant the employee any other day as a paid public holiday in substitution for any of the public holidays referred to in paragraph (1)(b).” Now, regarding what you pay you should receive if you work on a public holiday, section 60D(3)(a) tells us that regardless of whether you are employed as an hourly or monthly worker, you are entitled to an additional two days’ pay at the normal rate on top of the holiday pay. In addition to that, unlike working on a rest day, it does not matter how many hours of work you put in on that public holiday. For example, if you are usually earning RM20 per day, working on a public holiday entitles you to RM60 per day. This calculation is based on the holiday pay (RM20) + two days’ wages at ordinary rate of pay (RM20 x 2 = RM40). Section 60D(3)(a) is quoted as follows: “...in addition to the holiday pay he is entitled to for that day— (i) in the case of an employee employed on a monthly, weekly, daily, hourly, or other similar rate of pay, be paid two days’ wages at the ordinary rate of pay; or...regardless that the period of work done on that day is less than the normal hours of work.” If you have to work overtime on a public holiday, you would receive a minimum pay of three times your normal hourly rate. This means that if you usually receive RM5.00 per hour, working overtime on a public holiday would entitled you to be paid RM15 per hour. An additional point to note is that if the public holiday falls on a half working day for you, the normal rate of pay is that of a full working day. This means that if you usually earn RM20 for a full working day and RM10 for a half working day, in order to calculate the pay that you would receive on a public holiday, RM20 would be the amount used. Hold up. How do I even know what my ordinary rate of pay is? Section 60I(1)(a) tells us that “ordinary rate of pay” means the wages that you are supposed to receive (whether counted hourly, weekly or monthly) under your contract of service. This does not include the pay that you would receive for working on rest days or public holidays because as mentioned above, there would separate calculations for what pay you would receive for working on a rest day or public holiday. If you are curious as to how to calculate your ordinary rate of pay, the formulas are as follows: For a worker paid on a monthly basis: The ordinary rate of pay is found by dividing your monthly pay by 26. For example, if you earn RM2,600 per month, your ordinary rate of pay would be RM100. For a worker paid on a weekly basis: The ordinary rate of pay is found by dividing your weekly pay by 6. For example, if you earn RM600 per day, your ordinary rate of pay would be RM100. For a worker paid on a daily/hourly basis: The ordinary rate of pay is found by dividing your total salary for the preceding work period (if you are paid weekly, this means the pay you received in the last week, if you are paid monthly, then it would be the pay you received for the month before) by the number of days you worked during that work period. The salary that is used for this calculation must exclude any amount paid as incentives or rest day/public holiday wages. For example, if you were paid weekly and received RM150 for five days of work, your ordinary rate of pay would be RM30. Section 60I(2) also tells us that employers are not obliged to use the formulas provided by the Employment Act but whatever method they choose to calculate your ordinary rate of pay cannot place you at a greater disadvantage than what the law has provided: “An employer may adopt any method or formula other than the method or formula in subsection (1A), (1B) or (1C) for calculating the ordinary rate of pay of an employee; but the adoption of any other method or formula shall not result in a rate which is less than any of the rates provided in the subsections.” But what if my boss wants to give me an additional day off for working on a public holiday but I want extra pay instead? The Employment Act does not specify which reimbursement your employer must provide you when you are asked to work on a public holiday. Whether or not you would be entitled to additional pay or another day off would depend on your company’s policy and/or the agreement that you come to with your boss. This is because given how diverse the businesses are in Malaysia, it would be impossible to regulate this issue in a manner that would ensure every business would not suffer economic losses. So for example, if you worked for a logistics company that requires strict adherence to schedules, additional pay might be the best way to go. On the other hand, if you work for a smaller business that has a group of staff working, it might be more economically viable for them to give you an additional day off instead. At the end of the day, it pays to learn about your company’s policies in order for you to make preparations for a nice getaway or, if you are getting additional pay, to ogle things you want to buy."
"What does Malaysian law say about car tinting? Have you ever noticed cars with their windows tinted so dark that even Superman would have trouble seeing through it? Maybe you had yours tinted lighter than those cars, but then you got stopped by an officer before and were told your tint is too dark. Most of us know that there are rules about how dark we can tint our car windows, but most of us also don’t know the exact percent of visible light we can use. So, we’re going to brighten up this area of law. *ba dum tss!* Enforcement is hi-tech already. Image from beritasemasa This is the basic rule for modifying your car The million dollar question for whether a modification to your car is legal is this: Will it be dangerous for you or other road users? According to JPJ’s website, Rule 94 of the Motor Vehicle Rules (Construction and Use) 1959 states that your vehicle must not be dangerous to road users, whether in vehicles or on the road. Motor Vehicle Rules (Construction and Use) 1959 - Rule 94 “the condition of any vehicles that are used on the road, and all the parts and accessories, must not cause or pose danger at all times to those who are in vehicles or on the road” The law for window tinting is also based around this general principle. Just remember 7-5-3 as the window tinting rule The rules for how much light needs to pass through your car tinting were changed in 2016, taking effect from 6 February. The new rules are in the Motor Vehicles (Prohibition of Certain Types of Glass)(Amendment) Rules 2016. When tinting windows, you’ll hear the term “Visible Light Transmission” a lot, which is basically how much light can pass through your window. As per the law, your front windscreen must have a Visible Light Transmission (VLT) of at least 70%, the front windows must have a VLT of at least 50%, and the back windows and back windscreen can have their VLT all the way down at 30%. Bus and mini-van drivers should take note that their tints must all be at VLT 70% or higher though. The penalties for having illegal tints is RM2000 and/or up to 6 months of jail. This will be doubled for repeat offences. But can I use sunshades and curtains to block sunlight? On 6 September 2017, a man put a post on social media saying he was wrongfully stopped by the Malaysian police. He claimed he was given a summons by the Selangor Police for using a sunshade on his window. Turns out he probably wasn’t telling the whole truth, because the Selangor Police responded on social media as well. Apparently the man was issued a summons for having illegal tinted windows, and they have photo evidence of it. The story seems to imply that putting something on your window that blocks the view is illegal. Because it’s dangerous, right? Yes… and no… Can use ah? Image from pinterest The law in-question here is the Motor Vehicles (Prohibition of Certain Types of Glass) Rules 1991, Rule 4(1). No curtains, venetian blinds, or other materials can be used to shield the inside of a car (only buses and vans are allowed to). But that doesn’t mean we can’t use anything at all. In interview with The Star, the then Selangor Road Transport Department (RTD) director Yusoff Ayob clarified that using sunshades and towels to block out the sun is acceptable. “This is allowed because sunshades and towels are not permanent and can be removed when needed. Stickers and curtains are permanent and they reduce the driver’s view,” - Yusoff Ayob as quoted by The Star (emphasis added by AskLegal) 2018 car owners will have less to worry about There’ll be an easier way to make sure your tints are compliant with the law for vehicles registered after 1 January 2018. There’s a MS2669-certified tint that will be available at AAA-registered outlets (Auto Audio Accessories and Air-Condition Traders Association). These come with QR codes that make it easier to verify, and will be provided free-of-charge. If your current tints already follow the standard, you won’t need to change them. Traffic laws are put in place not because the authorities want to inconvenience you, they help keep people safe and define certain common practices. For example, it’s important that seat belts are used to reduce the harm accidents can do. There may be benefits we want to enjoy from using illegal modifications to our vehicles, but we might want to give them a pass if they affect our safety and the safety of others."
"Singapore company, Malaysian victims. How to sue? We ask the lawyers suing True Fitness If asked, most people would describe suing someone as a three-step process – hire a lawyer, go to court, collect money. However, it’s actually a lot more complicated, especially if the person or entity you’re suing is from another country. While it should be said that there are many ways to go about it (depending on the circumstances of each case), the lawsuit between the members of True Fitness against the Singaporean company is an interesting case study on the kinds of hurdles faced by the plaintiffs (the people suing) and what their lawyers are doing to overcome these hurdles. While the initial attention given to True Fitness seems to have died down among the general public, many members are still feeling the burn in their gluteus maximus over the sudden closing of outlets without proper notice - especially considering that the gym was still signing up members in the days prior to its closure. The last most of us have heard about the whole debacle is that two lawyers - Alex Anton Netto and Chen Yu Szen - from Malaysian law firm Dee, Netto, Fatimah & Ng (DNFN) were rallying members to file a class action lawsuit against True Fitness, being members themselves. But here’s the problem - True Fitness is based in Singapore. So does this mean that the lawsuit will be filed in Singapore, or can the Malaysian courts demand that the owners travel to Malaysia to attend court? To answer these questions, we got in touch with Alex Netto, who tells us that they’re actually taking a two-pronged approach, in Malaysia AND Singapore: By filing a petition with the Singapore Government By filing a class-like action lawsuit in the Malaysian court We’ll get into the details later on in the article, but let’s address a question some of you might be thinking - What’s a “class-like action lawsuit”? All the members are suing in groups You may have heard the term “class action lawsuit” used a lot in the media, especially when it comes to cases in the United States. Simply put, a class action lawsuit is a group of people who have faced similar injuries from the actions of one party banding together to file a lawsuit. The disbursements (basically the legal costs) are equally shared among the group and, if they’re awarded any form of compensation, that’s shared equally as well. Alex says that a class action lawsuit and a class-like action lawsuit is essentially the same because everyone involved have similar grievances or injuries. However, he uses the term class-like action lawsuit because the members have different types of agreements with True Fitness. To put it in an example, you may have one member with 5 years of membership left and another who has a lifetime membership. They both experience similar grievances (e.g., paying for a gym membership they can’t use) but differ in the type of agreement they had with True Fitness (e.g., 5 year versus lifetime membership). It’s important to note that, in the legal context, “injuries” don’t only refer to physical hurt but also other forms of harm recognized by law, such as loss of reputation, negligence, or breach of contract. This is part of what’s called Tort law, which is explained in greater detail in a separate article. [READ MORE: What is Tort law?] The other thing to note is that everyone involved in the class-like action lawsuit must have experienced similar injuries from the same party. This means that, for example, a True Fitness member who injured himself on a piece of faulty equipment cannot use this incident to be part of the class-like action lawsuit. He can still be a part of it if he still has some years left of his membership, but he will have to file a separate suit for the injuries sustained from the faulty equipment. So what exactly are the members suing for? Well, this is where it gets interesting… In Malaysia, the class action lawsuit hasn’t been filed yet! Don’t freak out. Just as how you can’t expect to develop a Jordon Yeoh body from running on a threadmill alone, there are several precursory steps that must be taken to lead up to that outcome. The lawyers first had to collect the documents and warrants to act (basically permission for someone to act on your behalf) from members interested in taking legal action against True Fitness. As there were more than 1,800 applications to process, DNFN will be filing the legal proceedings in two batches based on when they were received. At the time of writing, the first batch of legal proceedings have been submitted to the court. This will be explained in greater detail below, but In a quick (though not entirely legally accurate) nutshell, before the lawyers can file the lawsuit, they must first: Compel the Court to get an explanation from the directors in person (Section 540) Seek leave (permission) from the Winding up Court to start legal proceedings (Section 471) The first hurdle is that the 6 companies operating the True Fitness brand in Malaysia are going through a winding up process in the Malaysian High Court. Winding up is known to most people as “closing down a company”, which includes selling off all assets (liquidation) to pay off debts and splitting the remainder among the owners/shareholders. While the lawyers cannot stop the winding up proceedings, they instead filed an application under Section 540 of the Companies Act 2016 which states (in part): “If in the course of winding up of a company or in any proceedings against a company it appears that any business of the company has been carried on with intent to defraud the creditors of the company or creditors of any other person or for any fraudulent purpose…” Section 540 is a long read, but very simply, the application aims to compel the judges in the winding up proceedings to summon the directors to court for them to explain the sudden closure of the outlets. Here’s a quick glance at the major reasons given in the application: It was revealed that True Fitness founder Patrick John Wee Ewe Seng entered an agreement to expand operations to China, which was announced in the Hong Kong Stock Exchange in May 2017 As part of the expansion, an agreement had been made to shut down operations in Malaysia and Thailand before December 31st 2017. The directors closed down the outlets without proper notice to the members, employees or suppliers New members were still being signed up days before the gym was shut down From here, the judges will determine if fraud had taken place, or if the allegations against True Fitness were true fitnahs. At the same time, another application was made under Section 471 of the Companies Act 2016 which states (in part): “When a winding up order has been made or an interim liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court and in accordance with such terms as the Court imposes.” From here, the court can decide (after hearing the explanation from the directors) if the winding up process should be put on hold, and if they will give the lawyers permission to start the civil action (aka the lawsuit). The lawyers also asked the Singapore government to investigate the True Fitness owners At the same time they filed the applications to the Malaysian High Court, the lawyers also prepared a petition to the Singaporean government. This was handed over to the Singapore High Commission on June 30th. A petition is basically a formal appeal for a higher authority to take action on something, that’s signed by many people. In this case, the appeal was made for the Singapore government to investigate the company and the company directors (specifically the founder) for possibly committing a crime. “The manner in which Patrick John Wee Ewe Seng has acted is highly suspect and he has betrayed the trust and confidence that has been placed in the True Fitness brand in Malaysia. We thus implore the Singaporean Government to conduct immediate investigations into this matter with a view to prosecute the persons involved.” - Quoted from the petition presented to the Singapore High Commission At the time of writing, there has been no response from the Singapore Government. “To this date, we have yet to secure a response from the Singapore Government. All we have received was an email from the Singapore High Commission that they have forwarded the Petition to the Singapore Government for their further Action.” - Alex Netto, via email to ASKLEGAL. So bottom line - will the members get their money back? We asked Alex what sort of compensation (or “damages” in legal terms) they’re hoping to get, and this was his response: “Essentially, my firm endeavours to get back as much money as we can for our client and to hopefully bring the perpetrators to justice should the court rule that they have defrauded members.” - Alex Netto, in email reply to ASKLEGAL By the looks of it, we’ll most likely need to do a third update as the lawyers will have to wait for the court’s decision on the matter. This determines the lawyers’ next course of action, and whether the members will see the justice they feel is owed to them. This article is for informational purposes only and should not be taken as legal advice. Every situation is unique and dependent on the facts (ie, the circumstances surrounding your individual case) so we recommend that you consult a lawyer before considering any further action. All articles have been scrutinized by a practicing lawyer to ensure accuracy."
"If I divorce in malaysia, do I automatically get half the property? Most love stories start with the honeymoon period, the puppy love dating, and fervent whispers of, ""I love you"". You and your partner then frolic off, hand in hand, into the sunshine amongst the beautiful flowers. Okay, maybe your dating life was not this dramatic but you get the point. You find that someone and hit it off. Then you get married and you start sharing everything together like a house and maybe even a bank account. One day you wake up and the blissful marriage is over. Maybe you guys don't have anything in common anymore or maybe that spark has died. Whatever it is, you are now left with all the worldly belongings that you and your partner have purchased together over the course of your relationship. While some may choose to split it 50-50 and avoid the fuss of court proceedings, some believe that they are entitled to a bigger share of the property because they contributed more. This is the point where you turn to your lawyer for help. But what does the law tell us exactly? Please note that this article would address that law that applies to non-Muslims. There are three categories of property for divorce cases The case of Yap Yen Piow v Hee Wee Eng [2016] 1 LNS 1060 tells us that the Law Reform (Marriage and Divorce) Act 1976 (""LRA 1976"") divides property into three types for the purposes of divorce. To prevent any headaches on your part, we suggest that you remember the following terms as they would be used throughout the article: 1. Matrimonial property 2. Non-matrimonial property 3. Property acquired before marriage The first is ""matrimonial property"" which is really not defined in the LRA 1976 but the Yap Yen Piow case tells us that it is defined as property which is acquired by the joint effort of both parties to the marriage. This means that any property that is purchased through the shared finances or effort of you or your partner is a matrimonial property. The second classification of property is ""non-matrimonial property"" which is property which is acquired by only one party to the marriage. This means that any property that is purchased by you or your partner alone is a non-matrimonial property. The third classification is rare as it involves property acquired before the marriage. This basically means that it covers the property you bought before you got married. However, the court can also consider this as matrimonial property if it was substantially improved on during the marriage. As provided by section 76(5), substantial improvement can happen through the joint effort of both parties or by the party who did not acquire the property. For example, if you purchase a house prior to marrying your partner, that house can still be divided between you and your partner if the both of you worked together to renovate that house or if your partner renovated the house by himself/herself. Section 76(5) LRA 1976 ""...assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts."" As to whether you automatically get half of the property, well... Malaysia is inclined to the 50-50 split for matrimonial property but... Section 76(1) LRA 1976 is the section which allows the courts to order a division of matrimonial property or even to order you to divide up the money you made if you sold it off. However, this power is not entirely discretionary. This means that the courts can’t just decide based off whatever reason they like. The courts must take into account several considerations which are laid out in the Act and subject to these considerations, the courts will incline towards dividing the property equally. In essence, the LRA provides three considerations for the courts to mull over before coming to a decision. They are broken down as follows: 1. Contributions made by you or your partner towards acquiring the assets 2. Any debts accrued by you or your partner for your joint benefit 3. The needs of any minor children (below the age of 18) It is important to note that the contributions referred to above is not merely monetary. It can include property or work done towards acquiring the assets. For example, if your partner pays the mortgage on your family home but you paid for the renovation of the property, you might be able to argue for half of the property. AskLegal spoke to Aileen Lau, a partner in Donovan and Ho and who specialises in family law and she told us that: ”Section 76(2) refers to assets acquired during the subsistence of a marriage. This includes property, shares and savings. The courts will take into account the contribution of one spouse towards improving the value of the property but this is not necessarily a monetary contribution. It also needs to be noted that there is no fixed formula that the courts adopt, and it is entirely the court’s discretion.” – Aileen Lau, family law partner at Donovan and Ho. For reference, here are the factors covered by section 76(2): ""In exercising the power conferred by subsection (1) the court shall have regard to— (a) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (b) any debts owing by either party which were contracted for their joint benefit; (c) the needs of the minor children, if any, of the marriage, and subject to those considerations, the court shall incline towards equality of division."" This means that while there is no presumption that each partner is automatically entitled to 50% of the property, the courts can and will order such a division if after considering all the factors above, they are of the opinion that each party had contributed a sum or effort that is equivalent to 50%. Things that you bought with your own money can also be divided Imagine this scenario – you decided to buy yourself a nice new car with your year end bonus. You would think that in a divorce, this car cannot be divided because you bought it on your own. But section 76(3) actually involves the division of non-matrimonial property. You might find this section rather incredulous because why should you be forced to share the property you bought on your own with your partner who did nothing. Dividing such property under section 76(3) needs to be done with consideration to the factors laid down in section 76(4). Similar to the considerations that judges have to take into account when dividing matrimonial property, the division of non-matrimonial property is also subject to the considerations found in section 76(4). In a nutshell, section 76(4) tells us that when considering whether or how to divide non-matrimonial assets, the courts must look at two things: 1. The contributions made by the non-acquiring partner towards the welfare of the family such as through caring for the family or looking after the home 2. The needs of any minor children (below 18 years of age) While the courts can divide the non-matrimonial property in a division that they find reasonable after considering the points above, it is noteworthy that any division that is ordered must be more beneficial to the person who bought it (acquiring party). This means that if you purchased the property but your partner looked after the upkeep of the house, the property division would still benefit you. The division can be anything at all (90% to your benefit or 60% to your benefit) but you, as the acquiring party, must always get a greater proportion. Aileen Lau tells us that: ”If a property is jointly acquired, it would be equally divided. If it was acquired by the sole effort of one party, that party would have the greater share in the property. When it comes to the needs of a child, the welfare of a child is paramount and this is provided in section 88(2) of the LRA. For the party who gains custody of the child, the division of assets could be greater for them and the extent of the distribution of the assets would depend on the age of the child/children, medical needs, wellbeing, and education requirements of the child/children.” – Aileen Lau, family law partner at Donovan and Ho. This is how section 76(4) looks like when quoted in full: ""In exercising the power conferred by subsection (3) the court shall have regard to— (a) the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring the family; (b) the needs of the minor children, if any, of the marriage; and subject to those considerations, the court may divide the assets or the proceeds of sale in such proportions as the court thinks reasonable; but in any case the party by whose effort the assets were acquired shall receive a greater proportion."" So, do I get 50% or not? The answer is...there is not set answer. The laws were drafted to be more open-ended because in such a complicated family dynamic mixed with every day concerns of financial contributions and non-financial contributions, no situation is ever alike. Also, as mentioned by Aileen Lau, there is no fixed formula for the courts to adopt. It depends on their discretion. You may be shocked to learn that there have also been cases where a spouse’s EPF savings was also subject to division. In the case of Koay Cheng Eng v Linda Herawati Santoso, the husband’s EPF contributions during the marriage was divided equally with his wife. The judge was of the opinion that as the wife had entered the marriage with the intention of growing old with the husband and his EPF would have been used for both their benefits. The husband then should not be allowed to fully benefit from his EPF after the breakdown of the marriage. At the end of the day, the sections listed above are meant to be a mere guide for the courts to follow but there is no absolute guarantee that you would be entitled to a certain percentage of the property upon divorce. The courts have the discretion to decide based on what they see fit in accordance with the statutory considerations they need to keep in mind."
"Can the MCMC legally block websites in malaysia? So the Malaysian Communications and Multimedia Commission (MCMC) made big headlines in our local news as well as gaming sites on 9 September 2017. The fighting game “Fight of Gods” depicting various deities fighting each other was recently published as Early Access on Steam. These contained deities like Odin, Anubis, and Zeus; but the inclusion of Jesus and the Buddha managed to offend some Malaysians and this got the game reported to the MCMC. What came next was that MCMC ordered the entire Steam website to be blocked from Malaysia - a move many Malaysians criticized because MCMC not only decided to “burn the whole village to kill a mosquito”, they also contacted Steam instead of the game developers to block “Fight of Gods” from Malaysia. If you’re one of many gamers in Malaysia, you’re probably fuming, and outraged, and a dozen other things at this move. Some of you might be wondering, besides the moral and religious debate around the issue, is MCMC even allowed to censor the internet in the first place? We can’t really comment about actual practice, but here’s what our laws say. Malaysian law guarantees there will be no censorship of the internet! Image from realclear You didn’t read that wrongly, internet censorship is not allowed in Malaysia. This is guaranteed to Malaysians through Section 3(3) of the Communications and Multimedia Act 1998 (CMA): “Nothing in this Act shall be construed as permitting the censorship of the Internet.” So, it’s straightforward right? MCMC is not allowed to censor the internet, right? Yes, but… “Offensive content” is illegal content Section 211 of the CMA 1998 makes it illegal for platforms like Steam to provide content that is: “indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person” (emphasis added) Section 233 also makes it illegal for users create or share content that is “obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person”. Image from wumo But hey, what does Malaysian law even consider offensive? This is the part where a lot of debate comes in on whether the content is offensive or not, because the CMA 1998 doesn’t define what it considers “offensive”! However, there is a Content Code prepared by the MCMC under Section 213 which clarifies a few things about content in Malaysia, including how to classify content. According to Part 2 Section 1.2 of the Content Code which you can access here, offensive content is defined as: “anything which offends good taste or decency; is offensive to public feeling, is likely to encourage crime or lead to disorder, or is abusive or threatening in nature” Content like “Fight of Gods” is most likely to fall under “offensive to public feeling”. But that still leaves this question: who gets to decide what is offensive to public feeling? Part 2 Section 1.3 of the MCMC’s Content Code also states that the standards to decide whether something is offensive as: “the country’s social, religious, political, and educational attitudes and observances, as well as the need to accommodate global diversity in a borderless world” So if you really want to play “Fight of Gods” in Malaysia, you’ll need to convince MCMC that most Malaysians don’t mind fictional characters based on religious figures hitting each other in a video game. So how come MCMC can censor “offensive stuff”? Actually, even if Malaysians agree that “Fight of Gods” is offensive, shouldn’t the MCMC just go to the game developers and ask them to disable Malaysian access to “Fight of Gods” instead of blocking the entire Steam website? And even then, shouldn’t it be between the developers and MCMC? Why involve Malaysians at large who had nothing to do with creating or publishing the game? In the first place, the Communications and Multimedia Act 1998 doesn’t give the MCMC the power to block websites. But this is a grey area because technically, MCMC is not the one doing the blocking. This is because Section 263(2) of the CMA 1998 provides that Malaysian Internet Service Providers (ISPs) must assist the MCMC as much as possible to prevent offences under any Malaysian law. This includes terrorism, hacking, pedophiles… which most if not all Malaysians want prevented. It also happens to include the offensive content under the CMA… So any ISP that gets contacted by the MCMC must “help” the developers of “Fight of Gods” by making sure they don’t commit a Malaysian crime. But Steam is now unblocked! In any case, the gist is that MCMC may have had a case against “Fight of Gods” since there were legitimate complaints from citizens, but banning the entire Steam website may have been extreme given the circumstances. However, it looks like that move was intended to be a temporary measure as the block was removed the day after after Steam complied with the MCMC’s request to block the game. If you want to know more about how website blocks work, our friends at Cilisos.my wrote an article in 2015 about it."
"Is prostitution illegal in Malaysia? You might be blown by the answer. If you were to ask someone if prostitution is illegal in Malaysia, most Malaysians would answer yes with confidence. This can be seen in the outrage of netizens over a Malaysian policeman who was seen being close to a suspected prostitute. However, a look at our Penal Code shows that there is no actual law that explicitly says that prostitution is illegal. There are sections related to acts connected with prostitution but not related to prostitution itself. The Code does define prostitution in section 372(3) which states that prostitution is an act of someone selling their body for sexual gratification whether in return for money or something of the same kind. So, where does this leave Malaysia? The laws surrounding prostitution have created a situation where prostitution is neither legal nor illegal, but is instead restricted. This article will break down the laws surrounding prostitution and explain what each section in the Penal Code means. While prostitution itself is in a legal grey area, what is for certain is that... Pimping and sex trafficking is illegal While there are no specific laws making prostitution illegal, the usual situations leading up to prostitution are covered under the Penal Code. One of the biggest problems around prostitution is human trafficking. Hence, section 366 makes it a crime to kidnap women for the purpose of subjecting them to a life of prostitution. The punishment for kidnapping women with the intent of subjecting them to such a life is also heavier than the punishment for ""regular"" kidnapping. It carries a punishment of ten years' imprisonment and a potential fine. Section 366 Penal Code: ""Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to...a life of prostitution, or knowing it to be likely that she will be forced...to a life of prostitution, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine."" Section 372 is a long section that widely covers any form of exploitation for the purposes of prostitution. This section (in part) deals with widespread scenarios such as: 1. Penalising trading (buying, selling, hiring etc.) for the purposes of prostitution 2. Trafficking, harbouring or restraining any persons for the purposes of prostitution This means that anyone who acts as a pimp or is part of an organisation that smuggles women or men for the purpose of putting them through prostitution would be caught under section 372 and would face up to fifteen years of prison with whippings and fines. Section 372 is not quoted in the article because it can be long and hard to read but the two points mentioned above succinctly captures what the section aims to penalise. Such pimps are also prohibited from advertising the services that they offer regardless of whether it is through a good old advertisement or through putting up a notice. It even covers pimps offering prostitution services to people. Plus, pimps cannot evade being caught by putting up a sneaky advertisement that does not explicitly refer to prostitution because section 372(1)(e) provides that as long as the pimps advertise it in a manner that a reasonable man would know that it is for prostitution, he would be caught: ""by means of any advertisement or other notice published in any manner or displayed in any place for prostitution service or a service which a reasonable person would understand it to be a prostitution service, offers any person for the purpose of prostitution..."" So yeahhh. All those advertisements you see for “happy endings” or “volcano massages” are probably illegal. [READ MORE: What happens when you get caught in an illegal massage parlour?] The law also punishes anyone along the chain of command. This ranges from suspicious looking people seated outside seedy looking establishments to the touts that stand in certain areas with pictures of girls. Section 372 provides that anyone who acts as the middleman or controls the movement of prostitutes to show that they were assisting the carrying out of prostitution will also face the same punishments mentioned above. Section 372(1)(f): ""acts as an intermediary on behalf of another or exercises control or influence over the movements of another in such a manner as to show that the person is aiding or abetting or controlling the prostitution of that other,"" And now to answer the question that probably everyone who clicked on this article is wondering... You may be caught looking for prostitutes Aside from section 372 prohibiting pimps from advertising prostitution, it also prohibits you from seeking information for the purpose of prostitution or to accept advertisements, notices or displays related to prostitution: ""...seeks information for that purpose or accepts such advertisement or notice for publication or display;"" Further to the above, you can also be caught for solicitation but this is where things get murky. While section 372B covers the solicitation of prostitution, it is unclear whether Malaysia's legal definition of solicitation includes looking for prostitutes. To start off our explanation for section 372B, let's first look at what the section says exactly: ""Whoever solicits or importunes for the purpose of prostitution or any immoral purpose in any place shall be punished with imprisonment for a term not exceeding one year or with fine or with both."" The key words to look at in this section are ""solicits"" and ""importunes"". A quick look at Merriam-Webster's law dictionary seems to indicate that importune is a synonym of solicit and they both carry the meaning of persuading someone to engage in prostitution. Another reference to Oxford's Dictionary of Law (Eighth Edition) tells us that solicitation can either be the act of a prostitute attempting to obtain clients in a public place or the act of a person trying to obtain prostitution services in a public place. While certain countries criminalise both legal definitions of solicitation, it’s not clear if Malaysian law is the same. So, hang on. If there are no laws criminalising prostitution, does this mean that prostitutes can freely flaunt their wares? Actually... Prostitutes can still be caught for other crimes First off, as covered by section 372B mentioned above, it is illegal to solicit for the purpose of prostitution and as such, this is a crime that prostitutes can face up to one year of imprisonment for if found to be guilty. This means that technically prostitutes can prostitute themselves to you but they just can't OFFER to prostitute themselves to you. It may sound confusing but think of it in this way. It essentially means that prostitutes cannot reach out to you but can only provide prostitution services. For example, they can’t go, “Hey hensem. Want some fun? I give you good price” but they can provide you with sexual services. Therefore, in addition to the above, prostitutes can also be caught under the Minor Offences Act 1955 (""MOA 1955""). Under this Act, prostitutes are not allowed to behave in a disorderly or indecent manner in or near any public area. Section 27(b) MOA 1955: “every prostitute behaving in a disorderly or indecent manner in or near any public road or in any place of public resort...shall be deemed to be an idle and disorderly person and shall be liable to a fine not exceeding one hundred ringgit or to imprisonment for a term not exceeding one month or to both."" But in an enclosed situation, such as brothels, different rules apply. People typically associate the word ""brothel"" as any place that is occupied by prostitutes but the law gives it a more detailed explanation. The law defines brothels as places which are used and occupied by two or more people (whether at the same time or not) for the purposes of prostitution. Section 373 then punishes those who manages or assists in the management of a brothel or being the owner/occupier/agent of an owner of a place, permits it to be used as a brothel with up to fifteen years in jail. Section 373: ""(1) Whoever— (a) keeps, manages or assists in the management of a brothel; (b) being the owner of any place or the agent of such owner, or being the occupier of any place, lets the place or any part thereof with the knowledge that such place or part is to be used as a brothel or permits such place or part to be used as a brothel or is wilfully a party to the continued use of such place or part as a brothel, shall be punished with imprisonment which may extend to fifteen years, and shall also be liable to fine."" I don’t get it. Is prostitution legal or not? If an inference can be drawn from all the laws above, it appears that prostitution in Malaysia is restricted. As you can tell, it is not easy to live the life of a prostitute as even if it is a life that was freely chosen, a plethora of rules governs and controls what can be done. The laws appear to be aimed at preventing the trafficking and exploitation of individuals into the life of prostitution and also to draw a line between legality and morality. It has to be understood that while morality can influence laws, legality and morality are two separate issues. Just because something is made illegal or not made illegal by the Malaysian government does not make it right or wrong. Basically, in all senses of the word, know what you are getting into."
"In Malaysia, can I stop airplanes from flying over my property? This article only applies to the law of Peninsular Malaysia. Sabah and Sarawak have their own Land Codes and as such, the law might be different. There’s an old rule in law that “he who owns land owns it to the heavens and to the centre of the earth”. So we could theoretically build a skyscraper on our property with 50+ underground floors if we wanted to? While it’s an exciting idea to think about, how true is it for us today? If there was oil underneath our houses, could we actually drill for it and profit? The short answer is, no you can’t. The permissions to build extra floors are something else entirely, but there are some rights you have to guard your land ownership. So how much of the ground and sky do we actually control? Your land comes with certain rights over the space above and below it So is the sky above your house yours? Only to an extent, but the sky is not the only right you’re getting. Section 44(1)(a) of the National Land Code provides some benefits that come with your land, which are that you’re entitled to enjoy the airspace above and the ground below your land. You can imagine it as an invisible wall around your property that goes up into the sky and into the ground. Section 44(1)(a) - National Land Code (emphasis added) “the exclusive use and enjoyment of so much of the column of airspace above the surface of the land, and so much of the land below that surface, as is reasonably necessary to the lawful use and enjoyment of the land” No one else is allowed to enter the space you’re entitled to without your permission, whether at ground level, in airspace, or underground. It’s called trespass in law if they do (and trespassers have to compensate you for it). So how much of those spaces can I stop others from entering? How lawyers say “get off my lawn”. Image from bookriot.com It’s clearly stated in Section 44(1)(a) that we have control over what we “reasonably need”. But that begs the question: how much of the space or ground do we reasonably need? This depends on the type of land you own, but there is no fixed distance. The height of the airspace you control would differ if you own a 2-storey house versus say, if you own a lighthouse. Similarly for the ground, your degree of control would be different if you just planted trees on your land versus if you had an underground parking lot. We’ll first address the airspace, and then the underground later. Your lower airspace (from the ground up to the area above your roof) is strictly protected against trespass by law, while the use of the higher reaches of sky need to actually affect your enjoyment of your land to be considered trespass (like in the case of aircraft). As an example, if you’re doing any renovations, you should take care that your building does not protrude into your neighbour’s land. The Malaysian case of Chen Yue Kiew v Angkasamas Sdn. Bhd [2003] tells us that you can and will be forced to redo your roof if it pokes into your neighbour’s land. Here are some more real cases below to illustrate: 1) An exhaust fan about 4.5m above ground level which protruded 75cm into a garden was considered trespass into the garden. (Laiquat v Majid [2005]) 2) A crane jib hanging over someone’s land was considered trespass (Woolerton and Wilson Ltd v Richard Costain Ltd [1970]) 3) An advertising sign jutting 8 inches over a neighbouring shop was considered trespass and the sign was removed (Kelsen v Imperial Tobacco Co. Ltd [1957]) In contrast, flying over a house and taking pictures of it is NOT considered trespass (Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978]) Say cheese! Image from droneguru.net But why is flying over a house acceptable? That’s because... We don’t own the entire sky above our homes On that last example, we are not entitled to control a space we don’t even use in the first place - the public will be allowed to use that space. This is especially with airplanes flying overhead all the time; imagine an airline company having to pay thousands of people every time one of their planes passes above houses. The company would go bankrupt in no time! This is also recognized in our Civil Aviation Act 1969 under Section 19(1). It states that no legal action can be taken against an aircraft owner for flying over your land at a reasonable height. This means that while flying overhead normally is totally fine, there will be a problem if an airplane flew so low you could see the engines, or if a helicopter flew right next to your home. The same Section also says that if any damage is caused by the plane or objects falling from the plane, the owner of the plane will be liable to you whether the damage was caused by carelessness or not. You might be wondering what could drop from airplanes in the first place, since it’s not as if someone can throw rubbish out a window. Well, that list includes ice that forms on the plane’s body as well as stowaways who hide in the undercarriage of planes (with the landing gear). This emergency slide fell from a plane! Image from azfamily Now that we know we don’t totally own the far reaches of sky above us, what about the ground below our property? We don’t own our land all the way to the centre of the earth For some pieces of land, the title deed with contain the land depth that the owner owns. In the others where the depth is not specified, the rule is that you are entitled what you reasonably need to enjoy your land. The ground beneath your land can still be sold by you to someone else, say, to build a storage cellar. The rule is slightly different for properties sold by the government to developers after 2008. There are rules in JKPTG (Jabatan Ketua Pengarah Tanah dan Galian) Circulation No 1/2008 that define the minimum depth landowners are entitled to. The minimum depth you’ll get depends on the type of land you own. Agricultural lands get 6 metres, building lands get 10 metres, and industrial lands get 15 metres to use. This is to let landowners have enough space to use their land, but also allow for the underground land beneath that to be sold to a transportation company to build a subway for example. Image from academia.edu An amendment to the National Land Code in 2016 allowed for the land underneath a landed property to be sold separately. This becomes important when say, KTM wants to build a new line, but they may need to use the space deep beneath your house! For example, there were issues the Klang Valley Mass Rapid Transit Project (KVMRT) faced in buying land for underground tunnels, which caused a legal dispute between them and the owners of the Ampang Park shopping complex. KVMRT needed to buy the land and demolish the building to build an underground walkway because the underground land could not be sold as a separate piece according to this report. As a side note, if you have any rock minerals or oil under your land, no, you don’t own them. There is no gold rush potential. Even if you have precious resources on your land, they belong to your State where you live according to Section 40 of the National Land Code. So no, you don’t control all the skies and earth of your property The land you bought comes with enough rights that let you use the land for what you need it for; whether it’s farming, an office block, or a factory. Another way to look at it is that your property has its own “personal space” that other people cannot violate. Just like how it’s inappropriate for a stranger to suddenly sit right next to you and lean on your shoulder, it’s inappropriate for someone to come use your garden hose without your permission. On the other hand, you can compare flying a plane above your property to someone else being on the same bus as you. And trying to say that the land 1km below the surface is yours is like saying that a particular seat on the bus belongs to you. Basically, we have rights over what we privately own, but that stops where the space is for public use."
"Can the condo management in Malaysia really enter my unit and take my property? If you haven't been paying your maintanence fees on your high-rise apartment or gated community bungalow, you might want to start doing it soon. It's been recently reported that the authorities have started raiding the units of owners who have been defaulting on these payments and confiscating all movable objects inside - basically phones, laptops, TVs, and even chairs. As to whether they're actually allowed to do that, the answer is yes - through the Strata Management Act 2013. With more Malaysians preferring to live in high-rise buildings, it is important for them to know that they are subject to different laws as compared to living in a ""traditional"" landed house. So, let's start off with a question that some people might be wondering about, which is... What the heck is a strata? To start with, whether an apartment, condo, flat, SOHO, SOVO, or gated community; they all fall under the category of a ""strata property"". A strata property is defined as property that has multi-level division (apartments, condominiums, flats) or a horizontal subdivision (gated and guarded communities). Regardless of whether it is a multi-level division or a horizontal one, a feature of strata property is that it would have common property. Common property is essentially the property that you share with your neighbours who are living in the same strata housing development. This may include playgrounds, swimming pools or community halls. Some times you may even hear the phrase, ""limited common property"". Limited common property is similar to common property except only certain people are able to access it. For example, a garden or swimming pool that is reserved for penthouse owners only. Image from gogladly.com Strata property also comes with strata titles. Strata titles are essentially documents which are issued by the government to prove that you are the owner of the property. If you purchase a new unit from the developer, the title would usually be issued in the developer's name who then has to initiate a transfer to you, as the rightful owner. If you are purchasing a secondhand unit (or usually referred to as a sub-sale), be sure to ensure that the person you are dealing with is the registered owner in the strata title. At this point, you might be wondering about the more every day scenarios that you might face. For example, who is supposed to manage the common property if you all share them and what if you and your neighbours end up arguing about everything? This is where the management steps in but...who is the management? There are three kinds of management bodies If you are living in a strata property, you might have heard people saying, ""Got problem ah? Just go to management office and complain lah."" However, the question is, who exactly makes up the management and what are they responsible for? Under the Strata Management Act 2013 (""SMA 2013""), there are three types of management bodies: Joint Management Body (""JMB"") The JMB is basically a collaboration between the developer and the owners of the strata property. It is formed within one year of the vacant possession being handed over to you but before the title to your property is handed to you. Among a plethora of responsibilities that they are supposed to carry out, the JMB has to ensure that the apartment (or land if it is gated and guarded) and its common property is properly managed by keeping it in good repair. The JMB is also supposed to determine how much the maintenance charges and sinking funds (which would be discussed later in this article) would be and then collect it from you and the other owners. These duties are contained in section 21 of the SMA 2013. In order to carry out its duties, the JMB is also empowered by the powers listed in section 21(2) to do certain things such as collect charges from you and to do all things necessary for it to perform its duties under the SMA 2013. A useful point to note is that the JMB is a body corporate and has its own common seal. This means that you can actually sue the JMB for failures to carry out its duties and you can be sued by the JMB for failing to pay maintenance charges, for example. This is provided under sections 17(2) and 17(3) respectively. Section 17(2): ""The joint management body...shall be a body corporate having perpetual succession and a common seal."" Section 17(3): ""The joint management body may sue and be sued in its name."" Management Corporation (""MC"") The management corporation has similar duties and powers under section 59 but is only formed once you have received the title to your property. This means that if a JMB existed before the MC, the JMB would be dissolved and all the responsibilities transferred over to the MC. The management corporation is comprised only of owners to the property, without the part of the developer anymore. Subsidiary Management Corporation (""Sub-MC"") The sub-MC comes into play when there is a need for separate management. An example of when there is separate management is when there are both commercial and residential properties or when there are limited common properties. The sub-MC, subject to any restrictions from the MC, has the same duties and powers as the MC. For the sake of clarity, this article will now collectively refer to the JMB, MC and sub-MC as the management body. So, how can the management body exercise its powers? An example of how the management body can exercise its powers is shown in section 34 (for the JMB and sections 78 and 79 for the MC and sub-MC) where if you fail to pay maintenance charges within fourteen days of being served with a written notice from the JMB, the JMB can either sue you in court/Strata Management Tribunal or seize the property in your unit. If they choose to seize your property, the Act also allows them to forcibly enter your unit. An example of what has been seized from such raids include flat screen televisions, rice cookers and smartphones which were auctioned off in order to settle the outstanding charges. The seizure can only happen if the relevant Commissioner of Buildings issues a warrant for the JMB to act in such a manner. The Commissioner differs from area to area and a list of Commissioners in Malaysia can be found here. Further to the above, if you didn't have a valid reason for failing to pay up within 14 days of receiving the written notice, you are considered to be committing an offence and can be liable for a RM5,000 fine and/or a jail term not exceeding three years (Section 34(3)). Section 34(2): ""If any sums remain unpaid by the purchaser or parcel owner at the end of the period specified in the notice (14 days)...the developer or joint management body, as the case may be, may file a summons or claim in a court of competent jurisdiction or in the Tribunal for the recovery of the said sum or as an alternative to recovery under this section, resort to recovery under section 35."" Section 35: ""(1)The Commissioner may...issue a warrant of attachment...authorizing the attachment of any moveable property belonging to the defaulting parcel owner which may be found in the building or elsewhere in the State. (4) A person executing the warrant - (a) may, in the daytime, effect forcible entry into any house or building or any part of the house or building for the purpose of executing the warrant..."" Another instance of how the management body can exercise its powers is that they are allowed to make additional by-laws such as not allowing you to park in certain areas or from keeping pets in the unit. But wait. Why do I have to pay so many different kinds of charges? There are two common charges that you would typically have to pay when living in a strata property: (i) maintenance charges (ii) sinking fund The question is why do you have to pay different charges and what in the world are they used for? Under the SMA 2013, there are various sections that touch on the issue of maintenance charges and sinking fund. As a quick overview, the maintenance charges seem to be used for daily upkeep of the property and for minor works in order to keep the property in good shape. This includes paying for cleaning services, carrying out inspections on the electrical wirings or water tanks. Sinking funds, on the other hand, appear to be used for bigger and pricier things such as repainting the common property or replacing any fixtures in the common property. In a nutshell, the maintenance charges are used for smaller, every day concerns while the sinking fund is used for bigger, less common concerns. So, what happens if the management body misuses the maintenance charges or sinking fund? If there is a dispute between you and the management body, there is actually a special body that would manage your disputes. Your case will be heard by the Strata Management Tribunal The SMA 2013 establishes the Strata Management Tribunal which can listen to any issues listed in the Fourth Schedule of the SMA 2013 provided your claim does not exceed RM250,000. The Fourth Schedule lists down fourteen things that the Tribunal is empowered to listen to. It would make this article too lengthy if we listed down all fourteen items but in a nutshell, you can bring a complaint to the Tribunal if the management body fails to carry out its duties or abuses its powers. You can also bring a complaint if you are in a dispute about the cost of repairs done to your unit or to the common property. You can also approach the Tribunal to make an order for the management body to release certain information or documents to you or to request for an order to pursue an insurance claim. However, when you are bringing a complaint to the Tribunal, it is important to note that you would be representing yourself as no lawyers are allowed in Tribunal proceedings. The Tribunal will only allow a lawyer to be present if you can prove that you would suffer financial hardships from the lack of a lawyer or if there are complex legal issues to discuss. Section 110(2): ""No party shall be represented by an advocate and solicitor at a hearing unless, in the opinion of the Tribunal, the matter in question involves complex issues of law and one party would suffer severe financial hardship if he is not represented by an advocate and solicitor."" Further to that, there are also a list of people who are allowed to bring an action to Tribunal. This is found in section 107 SMA 2013 where eight different parties are allowed to bring a claim to the Tribunal. It appears that you would only be allowed to bring a claim if you have an interest in the property. This means that among other parties, owners, proprietors, managing agents and developers are allowed to bring an action to the Tribunal. If you are renting the property, you might not be able to bring an action to the Tribunal as tenants are not listed in section 107. However, you may work around this if you can prove to the Tribunal that you are an interested person and the Tribunal would then grant you permission to file a claim with them. Living in a condo is very different from living in a landed house While there are definitely advantages for living in a strata such as better facilities or security, there are also certain drawbacks as a lot of these facilities are not privately owned by you. In that sense, there has to be a certain level of cooperation and possible bureaucracy when things go wrong. For instance, if you reading this article with a leaky ceiling above you and you are wondering what to do about it, our article on who is responsible when things break down in strata properties is worth a read. [READ MORE: Living in a Malaysian apartment - who is responsible when things get broken?]"
"If a car hits a motorcycle in Malaysia, is it automatically the car's fault? Note: The above image is from a crash test conducted by MIROS. No real people were hurt. So you're driving down, say, the Federal Highway one day. The sun is shining, your killer track is playing. Surely nothing could go wrong. You slow down to turn into a junction on your left, when suddenly you hear a loud CRASH! A motorcycle has just collided into your brand new car. You try to calm yourself down and think about how to go about the situation. Your mind inexplicably brings up something your uncle told you once:""When you get into an accident with a motorcycle, don't bother arguing... it's always your fault!"" It seems to make sense. Motorcyclists are inherently in a more dangerous position, since they're not protected by their vehicle, and (most) motorcycles don't offer airbags as a safety option. The gem of a factoid has been repeated far and wide and for so long that it might as well be truth, right? Not necessarily. Well, then whose fault is it? The answer is: It depends. It really does. To see who we should point the finger at, there are a few things we have to look at. What happens when you get into a traffic accident? Easy like Sunday morning. Image by GiphyHowever, we won't be delving too deep into this aspect. Instead, this article will just be focusing on explaining how here's usually a few things that can happen:1. You can settle the issue privately without going to the police or to court2. Either the guilty party or the victim or both can go make a police report, and this has to be done within 24 hours from the time of the accident. It has to be a traffic police station, and should have jurisdiction (power) over the area where the accident happened3. The matter can go to trial where the court has to decide the issues of who is responsible for causing the accident (liability) and how much should the injured party receive (quantum)The police handles the issue by taking reports and issuing summonses to whomever the inspector finds is at fault. Take note: if one party reports and the other doesn't, the inspector usually rules in favour of the person who made the report. What if the police inspector claims it was your fault (when you are sure that it wasn't)?Y-you wanna repeat that? Image by The Guardian You can then decide to take the matter to court. Choices include consulting with your insurance firm that will arrange for a lawyer or engage one personally. This is where the tort of negligence enters the picture. From here on 'negligence' refers to the tort (legal term), instead of the everyday meaning of the word. [READ MORE: What is a tort?]Most of the time, it comes down to this - If you drove negligently, then you are at fault. This means that you have fallen short of the standard of the care and skill of an ordinary driver. To prove negligence, there must have been a duty of care owed, and there must have been a breach of that duty. An example of a duty of a driver is explained in the case of Chai Phin Chong (1998): ...a strong duty on the part of a driver to keep a good lookout while driving....... The sharpness of the lookout required depends upon the circumstances existing at the time... A driver should always anticipate the possible presence of others on the road and should always be able to stop within the range of his permitted vision.. There are some other issues such as remoteness (did you directly cause the accident? Was it foreseeable that what you did would cause the accident to happen?) An example here would be you were driving at 140 km/h on a road that has the speed limit of 80 km/h, at 8am on a workday morning. You end up hitting a vehicle in front of you because you couldn't stop in time. It was foreseeable that the accident would happen because you exceeded the speed limit by that much at the time when there are usually many vehicles on the road. The short version of all that is: don't be careless while you're on the road.But... but... can both of us be negligent? Negligence is your middle name. Image by quickmeme There's another question to ask. Is the other party contributorily negligent? What does that mean? That means that the other party was ALSO negligent, therefore contributing the causing of the accident. Here we look at the case of Teoh Weng You & Anor v Tan Hee Joo (2017). Dude was driving a lorry and got into a collision with a motorcycle at the mouth of a junction. The motorcyclist was trying to overtake the lorry but the lorry suddenly turned right, and he was hit from behind. Evidence and an eyewitness pointed to the fact that the motor lorry did not stop before turning right, and no signal was given. At the first glance, the lorry driver is obviously at fault. However: The learned sessions court judge made a finding that the respondent had behaved in a dangerous manner when he overtook the motor lorry at a place where there was a junction.A second illustration of contributory negligence is from Yap Kiam Lin v Azman bin Abdullah & Anor (2016). The motorcyclist in this case was travelling at a fast speed and did not stop in time to avoid collision with a car. The courts' decision was to... ...hold the defendant and the deceased to be each 50% liable for the accident.The more we know. Image by Imgur What if I'm the one who gets hit by a motorcycle?Fear not! If you were not contributorily negligent (meaning you were not also careless), it can mean that it is entirely the motorcyclists fault. Note also that it works the same for situations of when a car knocks into a bike. Individual circumstances differ and that's what matters. In Ali bin Saad v Toyibah bt Ahmad Nordin (2017) the car was rear ended by a motorcyclist on a bridge at Alor Setar. Here's where it gets fun, amigos. Both parties reported the incident to the police, and they both had their own version of it. The motorcyclist said that she was travelling on a straight road and the car that was on her right made a sudden left turn. The car driver's take on the facts was that he was going straight and stopped when the vehicle in front of his car stopped. That's when the motorcycle collided into his car. Turns out there was no evidence on whether the car driver was changing lanes, and the motorcyclist was found to be entirely liable. TLDR; The car driver is not automatically wrongThe Malaysian Highway Code (that our ""undang"" test is based on) actually lays down some grounds rules for the road such as courtesy, in Section 10:The courteous motorist will show consideration to all other road users whether drivers, cyclists or pedestrians. He controls his temper and obeys traffic regulations. You must not allow rudeness or stupidity of other road users to affect your own good manners, judgement and conduct while driving.Preach. The Code is enforceable by law under Section 68 of the Road Transport Act 1987, and is referred to in court.The Road Transport Act 1987 provides that if one drives dangerously and with undue care such as to cause death, one may be charged under Section 41 of said Act. You will be summoned to court, and expect to be handed a jail term of not less than 2 years but not more than 10 years, plus a fine between RM5000 to RM20,000. Your driving license may also be suspended.Similarly, Section 42 provides for people who are guilty of driving recklessly and dangerously, but not causing death. If convicted you can be imprisoned for a period of not exceeding 5 years, and a fine of not less than RM5000, but no more than RM15,000. Subsequent convictions will net you a longer term of imprisonment and heavier fines. Sections 43 and 44 deal with people who are found to be driving carelessly and inconsiderately, and driving under the influence (of drugs and/or alcohol), respectively.If nothing else, what we should take home from this is to drive safe, and exercise reasonable care in whatever we do (this includes driving, of course). From the above examples, the common thread between all the cases is that the court will examine all (available) evidence and they do not favour motorcyclists just because. In fact, contributory negligence is a very common element in these sort of incidents.And before you ask in the comments, yes, we have an article on whether you're automatically wrong if you hit a car from behind.[READ MORE: If you hit a car from behind, is it automatically your fault?]This article is for informational purposes only and should not be taken as legal advice. Every situation is unique and dependent on the facts (ie, the circumstances surrounding your individual case) so we recommend that you consult a lawyer before considering any further action. All articles have been scrutinized by a practicing lawyer to ensure accuracy."
"To be better lawyers, all Undergraduate Law Students should research, write, and publish THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect ASKLEGAL's position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article as it has not been verified by a practicing lawyer.by Dr. Shahrul Mizan Ismail | shahrulmizan@ukm.edu.myMany distinguished law schools in the world usually have an official law journal that represents the school, which publishes articles comprising of research findings and analysis of various legal topics from a wide variety of legal subjects. In addition to this ‘flagship’ journal, the schools sometimes publish several other more specific law journals, each of which usually will focus on a particular area of the law. Normally, all of these journals will feature articles written by law professors, judges, and other legal professionals, and sometimes shorter pieces written by law students called “notes” or “comments.” For instance, the law journal published by UKM. Click to check it out! Not many students, especially undergraduate students, would actually be able (or willing) to write a proper research article similar to those that are produced by their lecturers. Indulging oneself in in-depth research, writing academic articles, and publishing is something usually common for postgraduate students. In many universities, embarking on a research project, incorporating the findings of the said research onto an academic paper, and subsequently publishing them in high impact journals are even made preconditions to a student passing the respective postgraduate course, and ultimately obtaining a Masters or a Phd. Legal research is a very tedious and complicated process, which requires extreme patience and high level of meticulousness. But since postgraduate students are usually ‘older and wiser’ (having completed a degree/degrees plus years of working experience etc), researching and writing legal articles do come more naturally to them as opposed to the undergraduates. In many law schools in Malaysia, undergraduate law students are usually involved in research projects merely as research assistants or research volunteers to help out with simple data collection tasks such as compiling & summarizing cases, simplifying excerpts from textbooks or other materials, be it a subject/sample of research activities, or be employed to do various menial administrative works in relation to the research project. In some law schools, undergraduate dissertation or thesis are sometimes made part and parcel of the curriculum, but students are not expected to perform at the same level as those who are at the postgraduate level, and lecturers are often more lenient to them in comparison to the latter. So, if an undergraduate student is suddenly being made to be pro-actively involved in research activities that go beyond the aforesaid, such a student is actually ahead of his peers, and will in no time possesses ‘extraordinary’ capabilities. He will be on his way of becoming an undergraduate that is equipped with the sharp and critical mind of a Master or a PhD candidate. Though still a university student, he will demonstrate the research skill of an actual legal practitioner. He will be an asset to his future employer since the latter is saved from having to train him from scratch and forbearingly build his expertise for years to come. Doing research (as opposed to just being apart of the data collection process) provides the doer with some of the most crucial and valuable skills that employers usually seek in a law graduate. To quote the renowned Lord Denning, ""God forbid that a lawyer knows all the law, but a good lawyer is one who knows where to find the law”. A lawyer may not know all the law there is on a particular issue, in fact it rather impossible to be able to do that, but as long as he knows HOW to find it, then he is an adept attorney. ‘Finding’ the law here refers to the act of research. Complaints about law graduates not being able to do legal research is very commonplace among employers nowadays. Recent feedback seem to indicate that majority of law graduates are not ready for the industry and lack many these much needed legal and soft skills. In response to this, many law schools have tried incorporating more practical components into its syllabus so that students that are better equipped for the industry. Subjects like ‘Legal Methods’ (where students are trained on how to do legal research and produce effective legal writing pieces) and Mooting (where students are exposed to critical thinking process and how to answer judges’ questions impromptu) are taught as early as first and second year. Many employers, particularly large law firms, love to hire law graduates who have had the experience of participating actively in legal research and writing projects, especially those who have the experience of being an editorial member to a student-run law journal. Why? Because these students have spent many hours doing precisely the kind of in-depth, meticulous legal research and writing that is required of legal practitioners and law clerks. The opportunity of being involved as a member of the editorial board of a student-run journal will be highly valuable in this regard. It not only exposes the students to the much sought after research and writing skills, but also editing, managing, publishing and marketing the journal! This inculcates not just legal skills but also soft skills such as time management, teamwork, leadership skills, stress management and many more. Other aspects such as the students’ language, attitude and aptitude will also greatly improve! Producing a legal article for the purpose of publication requires egregious drafting and re-drafting hypothesis, critical thinking and re-planning over and over again, and subsequently reconstructing research questions, rigorous reading and carefully finding research gaps, repetitive editing and re-writing the content, and finally, concretely concluding with comprehensive wrap-up and providing strong recommendations for future research. The legal research process is highly organized and structured since it usually aims at untangling complex and complicated issue which will subsequently resolve client’s problem or society’s crisis. If a researcher does not have an effective research process and merely gather materials at random, a great deal of time will be wasted. Putting undergraduate students into the actual experience of undergoing all of the aforesaid will also increase his maturity, mentality and psychological ability to be more resilient, resistant and up-to-date. To all law students out there, if you’re ever invited or stumbled across the opportunity of becoming a part of your faculty’s student-run Law Review, please know that this is a high honor and one that you probably should accept. Give it a go and you will discover a hidden potential in you! Dr Shahrul Mizan Bin Ismail is an Associate Professor of Law at the Faculty of Law, National University of Malaysia (UKM). He has two main areas of specialization which are International Human Rights Law and Civil Procedure. He is the author to several reference books for Civil Procedure. He was also involved as an expert in the Malaysia’s National Human Right Action Plan (NHRAP) and Malaysia’s Syariah Index in 2015, both under the Malaysian Prime Minister’s Department. He is currently the advisor for Malaysia’s Department of National Unity & Integration under the Prime Minister’s Department."
"Jenayah ke kalau kita gantung Jalur Gemilang terbalik dan remix Negaraku? [Artikel ini diterjemah dari Bahasa Inggeris. Click here for English version] Kalau korang bangun daripada koma sebulan pun, korang tahu Hari Kebangsaan dah tiba bila tengok Jalur Gemilang berkibar kat mana-mana - kat atas kereta, kat tingkap rumah, dan kat tangan budak-budak yang suka cokelat dalam bendera tu. Ini juga masa untuk menyanyikan lagu-lagu patriotik yang kita dah hafal sejak kat bangku sekolah lagi. Daripada kecil kita dididik untuk berdiri bila lagu Negaraku dimainkan, dan Jalur Gemilang perlulah dikendalikan dengan penuh hormat. Tapi korang tau tak yang benda ini semua bukan sebab ia arahan daripada pengetua sekolah je, tapi sebenarnya ada undang-undang terhadap bendera dan lagu kebangsaan kita? Korang mungkin ingat yang rakyat Malaysia diharuskan berdiri apabila lagu kebangsaan dimainkan di dalam pawagam. Tapi pernah tak terfikir, apa akan jadi kalau korang duduk sebab nak menyeluk pop corn? Memang korang mengundang masalah sebenarnya. Jadi, memang ada undang-undang ke sekitar simbol-simbol kebangsaan kita? Jom kita mula dengan simbol Malaysia yang paling dikenali - bendera Malaysia. Jalur Gemilang - Bendera Kebangsaan Bendera Kebangsaan kita mendapat nama Jalur Gemilang oleh Tun Mahathir pada hari Merdeka tahun 1997. Bendera Malaysia ni sebenarnya tak ada sebarang peraturan tentang bagaimana ia perlu dikendalikan. Apa yang kita ada adalah dokumen setebal 62 mukasurat yang dikeluarkan Jabatan Perdana Menteri mengandungi maklumat yang lengkap tentang Jalur Gemilang dan bagaimana kita perlu pamerkan dan bagaimana kita perlu menjaganya. (Klik sini untuk versi interaktif.) Ini betul sebenarnya. Gambar dari The Star. Sebagai contoh, korang tau tak yang sewaktu Perarakan Merdeka, Jalur Gemilang perlu dibawa bagaikan ianya berkibar di atas tiang? Kepala bendera juga haruslah berada di hadapan perarakan menuju ke bangunan, dan ramai netizen kat media sosial salah anggap pasal perkara ini. Ada orang ingat yang bendera ni (seperti yang digambarkan) terbalik dan menyalahkan pihak berkuasa, tapi sebenarnya ia memang mengikut protokol. Perlu dinyatakan yang panduan tersebut bukanlah ditulis sebagai undang-undang, jadi korang takdelah akan kena humban ke dalam lokap kalau tersilap kibar bendera, cuma korang mungkin akan dipandang serong oleh Mak Cik Limah sebelah rumah. Gambaran Mak Cik Limah (maaf ye). Satu-satunya undang-undang yang boleh mengawal orang ramai menggunakan Jalur Gemilang adalah Akta Lambang dan Nama (Mencegah Penggunaan Tidak Wajar) 1963. Seksyen 3 dalam Akta tersebut menggariskan yang tiada sesiapun boleh menggunakan simbol nasional buat tujuan komersil tanpa kebenaran (contohnya menggunakan Jata Negara untuk logo syarikat). Walaupun Jalur Gemilang tidak dinyatakan dengan namanya dalam akta tersebut, ia ada disebut dalam dokumen setebal 63 mukasurat terbitan Jabatan Perdana Menteri. “Tiada kesalahan khusus mengenai pembakaran bendera. Saya fikir mereka mungkin perlu bergantung kepada undang-undang yang lebih umum” - Peguam Fahri Azzat seperti yang dipetik oleh Cilisos.my. Jadi, takkan kita boleh biarkan je orang perlakukan bendera negara kita sesuka hati? Tentulah tidak. Walaupun kita tak ada undang-undang khusus mengenai Jalur Gemilang, kita ada undang-undang am dalam Kanun Keseksaan (Penal Code) bagi orang yang tidak menghormati bendera Malaysia. Kita pernah menggunakan Seksyen 504 dalam Kanun Keseksaan (Penal Code) dan Seksyen 14 dalam Akta Kesalahan Kecil 1955 untuk mendakwa individu yang tidak menghormati bendera kita, salah satunya adalah apabila warga Australia memakai seluar dalam Jalur Gemilang di F1 Malaysia Grand Prix pada tahun 2016. Secara dasarnya, Seksyen 504 dalam Kanun Keseksaan menyatakan jika korang menghina atau memulakan apa-apa yang boleh mengancam keamanan awam, korang boleh didenda 2 tahun di penjara, atau saman, atau kedua-duanya sekali. Manakala Seksyen 14 Akta Kesalahan Kecil pula menyatakan yang jika korang menggunakan kata-kata kesat atau menghina atau berkelakuan sebegitu, korang boleh didenda hingga RM100. Negaraku - Lagu Kebangsaan. Jadi jika korang tidak berdiri sewaktu Lagu Kebangsaan dimainkan, sebenarnya ada undang-undang yang diluluskan Parlimen yang boleh mengundang masalah buat korang. Ianya adalah Akta Lagu Kebangsaan 1968 yang menggariskan panduan tentang apa yang korang perlu lakukan sewaktu Lagu Kebangsaan dimainkan. Iye, kita memang ada undang-undang khas untuk Lagu Kebangsaan! Ianya adalah sebuah undang-undang yang menggariskan segala-galanya tentang Lagu Kebangsaan, tentang di mana ianya boleh dimainkan, yang ianya perlu dilayan dengan penuh hormat, dan ini merupakan satu-satunya undang-undang Malaysia dengan nota muzik tercetak untuk menunjukkan macam mana lagu tu berbunyi seperti yang sepatutnya. Korang juga boleh tengok Senarai Pindaan bagi Akta tersebut yang perlu diluluskan kalau nak tukar tempo lagu Negaraku! Gambar dari The Star Apa yang menarik, undang-undang ni menyediakan 3 versi Negaraku untuk dimainkan di acara-acara rasmi. Senang kata, ada versi panjang, sederhana, dan pendek. Perbezaan dalam versi ini juga juga merupakan salah satu prosedur rasmi yang memberi penghormatan tertinggi hanya kepada Yang di-Pertuan Agong dan Malaysia sendiri. 1) Versi Panjang - Dari “Negaraku…” Versi penuh ini adalah dimainkan ketika majlis-majlis rasmi, bila Jalur Gemilang dibawakan di perarakan, mengangkat warna-warna Tentera, serta sebagai penghormatan terhadap Yang di-Pertuan Agong atau Timbalan Yang di-Pertuan Agong. 2) Versi Sederhana - Daripada “Rahmat bahagia...” yang pertama Versi ini dimainkan sewaktu majlis-majlis rasmi buat Raja Permaisuri Agong dan juga Yang di-Pertua-Yang di-Pertua Negeri Melaka, Pulau Pinang, Sabah dan Sarawak. 3) Versi Pendek - Daripada “Rahmat bahagia...” yang kedua Versi pendek dimainkan apabila mana-mana Sultan hadir dalam majlis tersebut. Dah tu kenapa sekolah mainkan versi penuh walaupun tanpa kehadiran Agong? Jangan bimbang, Seksyen 3(2) menyatakan yang versi penuh boleh dimainkan di sekolah kerana ia mengajar mereka untuk menyanyikan Lagu Kebangsaan! Dalam memberi penghormatan kepada Lagu Kebangsaan, Seksyen 8 dalam Akta tersebut mengharuskan kita untuk memberi penghormatan dengan berdiri dan memberi perhatian, melainkan kalau ia disiarkan di TV atau sewaktu berita. Sesiapa yang menunjukkan rasa tidak hormat kepada Lagu Kebangsaan di tempat awam boleh didenda sehingga RM100 atau dipenjarakan sehingga sebulan. Rasa tidak hormat kepada Lagu Kebangsaan ini dinyatakan dalan Seksyen 8(3) sebagai kegagalan untuk berdiri dan memberi perhatian tanpa sebab yang munasabah, atau apa-apa yang boleh merendahkan martabat Lagu Kebangsaan di pandangan awam. Jadi kalau ada kawan sebelah tu duduk atas kerusi roda, tak perlulah nak suruh dia berdiri pulak. Kalau korang tertanya-tanya, tak ada sebarang undang-undang yang menghukum nyanyian lagu Negaraku yang teruk. Jadi walaupun korang jenis suara yang serak tapi tak basah, tak kisahlah, teruskan menyanyi asalkan semangat korang selari dengan muzik, dah OK! Kita tak perlukan undang-undang untuk cintakan negara Gambar dari ExpatGo Sama ada kita ada undang-undang ataupun tidak yang berkenaan dengan bagaimana simbol negara kita perlu dikendalikan, ia sudah menjadi budaya Malaysia yang besar untuk memberi penghormatan kepada identiti negara kita. Kalau korang ingat insiden tahun 2015 ni di mana Jalur Gemilang ditayangkan secara terbalik oleh sebuah kumpulan metal British, warga Malaysia terus ke hadapan untuk mempertahankan bendera kita. Kita mungkin ada pelbagai perbezaan sebagai rakyat, tapi kita juga banyak berkongsi benda yang sama! Selamat Hari Kebangsaan semua!"
"6 Undang-Undang baru Malaysia yang korang kena tahu Setiap tahun parlimen Malaysia akan bertemu dan berbincang di mana undang-undang baru akan diluluskan (atau ditolak). Menurut Perkara 66 Perlembagaan Malaysia, parlimen mempunyai kuasa untuk berbuat demikian ni termasuk jugalah melakukan sebarang perubahan kepada undang-undang yang sudah sedia ada. Pada tahun ini, persidangan pertama kali diadakan pada 16 Mac. Tapi bagaimana undang-undang ni digubal?Untuk wujudnya sebuah undang-undang baru, ia perlu dimulakan dengan bacaan pertama dan ketika ia dicadangkan, ahli Dewan Rakyat tidak perlu berdebat dan bacaan tersebut hanyalah sebagai formaliti. Undang-undang tersebut akan dibacakan kali kedua di mana time tu baru ahli Dewan boleh berdebat dan undian akan di ambil.Kalau undian dari bacaan dari kedua tu lulus, undang-undang tersebut akan mendapat bacaan ketiga di mana sesetengah isu akan dibahaskan lebih mendalam dan bila semua dah settle dan mendapat persetujuan majoriti Dewan Rakyat (lebih 2/3), undang-undang tersebut akan dibawakan kepada Dewan Negara dan disitu ahli Senat akan periksa balik undang-undang tersebut (lebih kurang double check lah) sebelum ia di keutarakan kepada Yang di-Pertuan Agong. Secara amnya macam tu lah undang-undang Malaysia digubal, macam tahun-tahun sebelum ni 2017 telah melihatkan beberapa undang-undang baru yang telah diluluskan dan diperbaiki. Kat sini Asklegal telah list-kan beberapa undang-undang yang berjaya menangkap perhatian kami setakat ini...1. Kena bayar cukai pelancongan kalau tinggal kat hotel mahalFile PDF : RUU Cukai Pelancongan 2017Dibentangkan pada bulan April tahun ni, undang-undang cukai pelancongan ni telah disebulungi kontroversi apabila rakyat Malaysia sendiri tidak dikecualikan dari cukai tersebut. Ia kemudiannya telah digubalkan semula di mana rakyat Malaysia tidak perlu membayar cukai kalau hotel tersebut diklasifikasikan tiga bintang ke bawah. Tapi bagi para pelancong pula, mereka perlu membayar cukai tu tanpa mengira klasifikasi hotel. Sebanyak RM20 dikenakan untuk hotel lima bintang, RM10 untuk empat bintang, RM5 untuk tiga bintang, dan RM2.50 untuk dua bintang.Apa yang sepatutnya dilaksanakan pada 1 Julai haritu telah ditangguhkan pada awal bulan Ogos, ni adalah kerana sistem cukai tersebut tak siap lagi kata Menteri Pelancongan dan Kebudayaan Malaysia, Datuk Seri Muhamed Nazri Abdul Aziz. Setakat ni hanya semenanjung Malaysia saje yang melaksanakan undang-undang tersebut manakala Sabah dan Sarawak masih lagi ragu-ragu dalam perlaksanaan sebab mereka taktau sama ada nak luluskan atau tidak. 2. Whatsapp/WeChat/PM kanak-kanak benda 'nakal' sekarang ni merupakan kesalahan besarFile PDF : RUU Kesalahan-Kesalahan Seksual Kanak-Kanak 2017Apa yang bermula sebagai investigative journalism oleh sebuah kumpulan wartawan R.age telah mendapat perhatian orang ramai apabila R.age menerbitkan satu video dan artikel di mana terdapat sebilangan lelaki warga Malaysia yang asyik mengorat kanak-kanak bawah umur ke arah gelombang maksiat. Laporan tersebut telah bertukar menjadi sebuah mini series dan kemudiannya mendapat perhatian para ahli Dewan Rakyat.Pada awal tahun 2017 RUU Kesalahan-Kesalahan Seksual Terhadap Kanak-Kanak telah diluluskan oleh Dewan Rakyat dan berbeza dengan Akta Kanak-Kanak 2001, mangsa bawah umur sekarang dinaik taraf sebagai saksi yang sah atau saksi yang diiktiraf dalam mahkamah. Malah menurut undang-undang tersebut, takyah sentuh tapi hanya perlu menunjukkan video lucah atau bersembang lucah dengan kanak-kanak sudah mencukupi untuk mendakwa seseorang dalam mahkamah.3. Pemandu part time kena daftar dengan kerajaan demi keselamatan penumpangFile PDF : Rang Undang-Undang Pengangkutan Awam (Pindaan 2016) Berbeza dengan undang-undang yang kami tulis kat atas ni, RUU Pengangkutan Awam sebenarnya dah lama ada dan kali ni ia di-modify untuk melibatkan sekali perkhidmatan e-hailing (satu gang dengan Uber, Grab). Dibacakan pada hari sama RUU Cukai Pelancongan, undang-undang ni bertanggungjawab untuk mendaftarkan pemandu e-hailing kepada kerajaan.Ia juga bertindak sebagai database untuk kerajaan bagi pemandu-pemandu e-hailing yang pernah ada rekod jenayah. Selain dari tu, undang-undang baru ni bertindak sebagai penguatkuasa untuk SPAD memeriksa dan memastikan setiap kenderaan yang digunakan oleh perkhidmatan e-hailing berada dalam keadaan selamat untuk penumpang dan juga pemandu. 4. Pengambilan insuran untuk Grab Car dan UberFile PDF : Rang Undang-Undang Keselamatan Sosial Sendiri 2017Diluluskan pada bulan April tahun ni, undang-undang ni mewajibkan semua pemandu teksi persendirian dan e-hailing untuk mendfatar dan mendapatkan insuran bekerja. Menurut Menteri Sumber Manusia Datuk Seri Richard Riot, bagi yang dah mendaftar mereka kena carumkan sebanyak 1.25% dari pendapatan bulanan mereka setiap bulan di mana insuran tersebut melindungi pemandu selama 12 bulan berturut-turut yang berkuat kuasa dari tarikh caruman di buat.Motif undang-undang ni adalah untuk melindungi pemandu jika terlibat dalam kemalangan sewaktu bekerja dan menjamin keselamatan sosial pekerja. Riot juga berharap undang-undang ni akan diperluaskan ke industri lain pada masa akan datang tapi buat sementara waktu ni hanya pemandu e-hailing dan teksi peribadi saje kena buat. Gagal mematuhi undang-undang tersebut boleh dikenakan denda tidak melebihi RM10 000 atau penjara tidak lebih dua tahun atau kedua-duanya sekali.5. Hak asasi untuk flora dan fauna MalaysiaFile PDF : Rang Undang-Undang Akses Kepada Sumber Biologi dan Perkongsian Faedah Jangan biarkan nama yang panjang ni mengelirukan korang! Undang-undang ni sebenarnya berfungsi sebagai pelindung untuk flora dan fauna Malaysia. Secara amnya undang-undang ni bertindak sebagai garis panduan dan kuatkuasa untuk syarikat komersial dan pihak pengajian untuk guna alam sekitar dengan kadar yang berpatutan dan dilakukan secara berperikemanusian. Tapi bagi sesiapa yang nak pergi memancing atau memetik buah untuk tujuan rekreasi atau makanan harian, mereka dikecualikan dari undang-undang ni. Senang cerita hanya syarikat atau organisasi besar saje yang termaktub dalam undang-undang ni. Dalam undang-undang ni juga, ia memberi kuasa kepada Unit Perancang Negeri (setiap negeri ada satu) untuk memberi atau menarik permit dan juga membuat siasatan jika berlaku salah laku.6. Lebih banyak perlindungan untuk mangsa keganasan rumah tangga File PDF : Rang Undang-Undang Keganasan Rumah Tangga (Pindaan 2017) Sebelum ni kami di Asklegal ada tulis secara terperinci pasal undang-undang ni (tekan sini untuk baca), tapi secara dasarnya ia merupakan satu ubah suai dari undang-undang yang sama. Kat dalam pindaan baru ni, ia memberikan hak dan perlindungan lebih kepada mangsa. Seperti contoh, mangsa sekarang ni mempunyai perlindungan lebih menyeluruh dan lebih cepat sebab kalau sebelum ni perlindungan tersebut hanya berkuat kuasa kalau penyerang tersebut disabit dalam mahkamah, sekarang dah tak perlu. Selain dari tu, definisi untuk keganasan rumah tangga juga telah diperluaskan. Sebelum ni ia hanya meliputi serangan fizikal dan mental mangsa saje tapi dengan pindaan undang-undang baru ni, harta, keraguan keselamatan diri sendiri juga telah dimasukkan sekali. Pindaan kali kedua akta ni telah diluluskan pada bulan April tahun ni.Tentulah ada lagi Rang Undang-Undang yang tak termasuk dalam artikel ini!Sewaktu kami periksa laman sesawang parlimen, ada beberapa undang-undang yang tangkap perhatian kami seperti pindaan undang-undang bankrap (kami ada tulis artikel pasal ni, tekan sini untuk baca) dan undang-undang kewangan. Sebab utama undang-undang tersebut tak masuk dalam artikel ni adalah kerana undang-undang tersebut tidak mempunyai impak direct dalam kehidupan seharian kita berbanding undang-undang yang ada kat dalam list ni.Tapi kalau korang nak tengok list penuh undang-undang yang diluluskan dan dibatalkan di parlimen dari tahun 1990 sampailah ke harini boleh tekan kat sini."
"Living in a Malaysian apartment - who is responsible when things get broken? Imagine this utopia - the gardens are lush. The swimming pool is great. Your kids can climb up and down the jungle gym without you worrying that it might break. This is life in an apartment or condo or, in technical terms, a strata property. This refers to a property with multi-levels or a horizontal subdivision with shared areas. Aside from apartments, condos, and flats; it can also refer to a gated and guarded community. Perhaps to be more accurate, the above depiction is life in a properly managed strata property. If a strata property is not properly managed, you can end up with leaky ceilings or lifts that never work. Then that utopian setting would fast transform into a horror show. Image from tumblr.com You are probably going to be left wondering who would be responsible in that scenario. Would it be the owners of the units or would it your management body? It should be noted that this article only applies to strata property in Peninsular Malaysia as Sabah and Sarawak has their separate legislations. The laws that would be referred to here are the Strata Management Act 2013 (""SMA 2013"") and the Strata Management (Maintenance and Management) Regulations 2015 (""SMR 2015""). First question is, who manages the development? If you live in a strata property, chances are your housing area would be managed by either a JMB or an MC. As a quick overview, the JMB stands for 'joint management body' and the MC is the 'management corporation'. They are both tasked with the duty of managing the property (under section 21 and section 59 of the SMA 2013 respectively). The difference between the JMB and MC is that the JMB is jointly managed by the developer AND the purchasers of the property while the MC is fully operated by purchasers. For ease of reference, this article will collectively refer to the JMB and MC as the management body. If my property is damaged/not maintained well, what can I do? It would be impossible to cover all the individual problems that may arise from living in an apartment in one article, so we'll be starting with what you can do in general cases before addressing more common issues such as leaky ceilings. The first thing to consider is whether the development is still under warranty from the developer, or if you're the owner or just renting. If you're the owner and the apartment is still under warranty The first scenario is when your property is damaged when it is still under the warranty (defect liability) period provided by the developer. Typically the warranty from the developer can last anytime between 12-36 months depending on your respective contract. If you are still under warranty, then you can direct your complaints to the developer. If it is the common property (such as lifts or the pool) of your housing area that is damaged, then the same procedure applies. This is because section 92 of the SMA 2013 provides that the developer has to deposit a certain amount with the Commissioner of Buildings in order to rectify any defects in the common property. Image from theage.com.au If you're the owner and the apartment is NOT under warranty If your defect liability period has ended, you would need to refer to your management body in order to rectify the defects in your property or common property of your housing area. Depending on whether it is the JMB or MC, the SMA 2013 actually lists the duties that each management body has to fulfill. For example, section 59(1) tells us that the MC has a duty to properly maintain and manage the strata property, including the common property. This includes matters which are considered more trivial such as keeping the area clean or bigger issues such as making sure that the lift doesn't break down once a month. Section 59(1) SMA 2013: ""(1) The duties of a management corporation shall be as follows: (a) to properly maintain and manage the subdivided building or land and the common property and keep it in a state of good and serviceable repair;"" If the management body fails to carry out their duties, you can then lodge a complaint with the Strata Management Tribunal. The Fourth Schedule of the SMA 2013 tells us the Tribunal is empowered to listen to disputes or complaints relating to the failure to perform a duty. Fourth Schedule, Strata Management Act 2013: ""1. A dispute or complaint concerning an exercise or the performance of, or the failure to exercise or perform, a function, duty or power conferred or imposed by this Act the subsidiary legislation made under this Act..."" However, an important point to note is that the Tribunal can only listen to issues listed under the Fourth Schedule provided it does not exceed RM250,000 in awards. This means that if the compensation you are looking for exceeds RM250,000, the Tribunal has no power to listen to your case and you'll likely have to engage a lawyer for further advice. Speaking of lawyers, another important point to note is that you are not allowed a lawyer in the Tribunal, so you'll have to argue your own case. The Tribunal would only allow you to be represented by a lawyer if there are complex legal issues to be determined or if you can prove that you will suffer financial difficulties if you were not represented by a lawyer (section 110(2) of the SMA). If you're NOT the owner or just renting the property If you were renting a property and was thinking of bringing a complaint to the Tribunal, you might not be able to do so. This is because section 107 sets out the list of people who are entitled to bring an action to the Tribunal. Among other parties, a purchaser or a proprietor is allowed to bring an action, along with anyone that the Tribunal considers to be an ""interested person"". This means that, as a tenant, you'll first need to convince the Tribunal to give you permission to lodge a complaint. Now, let's head to more common problems that apartment-dwellers might face. What if my ceiling starts leaking? What can I do? Given how most of us have experience a leaky ceiling at some point in our lives, the law actually covers what is termed as ""inter-floor leakage"". Inter-floor leakage is basically a fancy term used to describe water damage to your ceiling. It is defined in the SMR 2015 as any evidence of moisture, dampness or water penetration on either your ceiling or on any part of materials that form part of your ceiling (Regulation 55). Image from woodtv.com What should I do first? So, if your ceiling ever starts raining on you, the first thing you have to do is lodge a complaint with the management body (or the developer if you are still under warranty). The relevant body would then carry out an inspection on your property in order to find out what was the cause of that leak and who is responsible for it (Regulation 57). Regulation 58 also provides a list of factors that have to be taken into account when determining the cause of the leakage. You can read the full list under the SMR 2015 but the starting point for each investigation is the presumption found in section 142 SMA 2013. Section 142 tells us that if you are suffering from leaks or damp patches on your ceiling, the law will assume that the unit above caused the leakage. Section 142 of the Strata Management Act 2013 (in part): ""In any proceedings in a court or of the Tribunal under this Act with respect to any alleged defect in a parcel or in any common property or limited common property situated immediately, whether wholly or partly, above another parcel or any common property or any limited common property, it shall be presumed, in the absence of proof to the contrary, that the defect is within that first-mentioned parcel or common property or limited common property, as the case may be, if there is evidence of dampness, moisture or water penetration -"" This doesn't mean that the unit above is automatically guilty of causing the leak, but rather it allows the management body to enter the unit to investigate further. This makes the investigative process speedier. What if the owner/occupier of the unit above refuses to let the management carry out the inspection? The law has prepared for this possibility under regulation 63 which states that if the owner in the unit above you refuses to allow you entry, then he or she is guilty of an offence that can result in a RM50,000 fine or a maximum of three years in prison: ""(2) Any purchaser, parcel owner, proprietor or occupier of the affected parcel or any other parcel who fails to give access to the affected parcel or any other parcel to the person or body carrying out the inspection pursuant to subregulation (1) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand or to imprisonment for a term not exceeding three years or to both."" Image from hulettrealty.com Who can I claim damages from? However, despite this legal presumption that the unit above caused the leakage, who you can claim from depends on whether or not your property is still under the defect liability period. If the defect liability period has not expired, then your developer is responsible for the damages. If it has expired, and it can be proven that the unit above caused the leakage, then the owner of the unit above has to pay for it. If he fails to repair the leak, then the management body must make the repairs and claim the costs from him. Regulation 61 SMR 2015: ""(1)Where the inter-floor leakage is caused by or is attributable to a parcel or any part thereof, the purchaser, parcel owner or proprietor of that parcel shall...take all necessary steps and measures to rectify the inter-floor leakage within seven days of receipt of Form 28 (this is a certificate of inspection issued by the management body which lists the cause of the leakage). (2) If he fails to do all the necessary steps mentioned in subregulation 61(1), the developer, joint management body, management corporation or subsidiary management corporation...as the case may be, shall immediately take all the necessary steps and measures to rectify the inter-floor leakage and shall charge and recover all cost and expense from the party responsible for the inter-floor leakage."" What if my neighbor drills a hole through my wall? The SMR 2015 also makes references to ""party wall"". For the party animals out there, chill and close your Spotify playlists because it's not that kind of party. A party wall is essentially the wall that you and your neighbour shares. Regulation 65 defines it as a wall located between separate units or between a unit and a common property. The damage that is covered includes dampness, moisture, water damage and other damage. This means that it is wider than the provisions for inter-floor leakages as it cover more than damage caused by water. Further to that. regulation 67 also provides that the regulations that apply to inter-floor leakages would apply in the same manner here: ""In a case where a parcel is affected by damage to a party wall, the provisions of regulations 55, 56, 57, 58. 59. 60, 61, 62, 63 and 64 shall apply mutatis mutandis."" Don't delay in reporting! Image of a broken security barrier submitted by an AskLegal reader who wishes to remain anonymous. The Strata Management Act and the Strata Management Regulations have detailed steps that you need to adhere to in order to file complaints with the Tribunal or to request for an inspection from the management body. In this sense, it always best to file a complaint as soon as possible before the problem gets worse. Even if you are just renting the property and you are not sure if you can lodge a complaint, it would be best to notify your landlord so that he can take the necessary steps."
"These 2 Malaysian laws have been protecting our National Flag and Anthem for 55 years You know it’s Malaysia’s National Day when you start seeing the Jalur Gemilang being flown just about everywhere from on our cars to outside our houses, and it’s a time people are singing patriotic songs that a lot of us learned in Secondary School. We learned from an early age to stand to attention when Negaraku is played, and that the Jalur Gemilang must be treated with respect. But have you wondered whether there are actually laws on how to treat the National Flag and our National Anthem? You might remember that Malaysians were required to sing the national anthem before movies in cinemas. But could you get into trouble for sitting down and enjoying your popcorn? Yes you could. So is there any legal basis for the rules around our national symbols? Let’s start with Malaysia’s most recognizable symbol - the Malaysian flag. Jalur Gemilang - The National Flag Our National Flag wasn’t always known as the Jalur Gemilang. It was only given the name by Tun Mahathir on Merdeka Day in 1997. The Malaysian flag surprisingly doesn’t have any legal rules on how it should be treated. What we do have is a 62-page document issued by the Prime Minister’s Office containing the complete resumé of the Jalur Gemilang as well as how to properly display and take care of it. (the interactive book version is here if you prefer something less traditional) Image from TheStar For example, did you know that during the Merdeka Parade, the Jalur Gemilang has to be carried as if it is flying on a flagpole down the street? It also has to face the Grandstand and so the flag is carried the other way around, which has apparently caused some misunderstanding on social media before. Some people though the inversion was another epic fail by the authorities, but no, the authorities were right on this one. It should be noted that these guidelines are not legally binding, which in normal speak means you won’t get hauled off to jail for not following the guidelines. But whether people will look at you funny is a different story entirely… SHAME! Gif from Giphy The only law that might control how people use the Jalur Gemilang is the Emblems and Names (Prevention of Improper Use) Act 1963. Section 3 of the Act provides that no one may use our national symbols for any commercial purposes without permission (such as using the Jata Negara in a company logo). While the Jalur Gemilang isn’t identified by name in the Emblems and Names Act, it is mentioned in the 62-page document earlier published by the Prime Minister’s Office. “There is no specific offense of flag burning per se. I imagine they would have to rely on a more general law” - Lawyer Fahri Azzat as quoted by Cilisos.my So, does this mean we Malaysians go easy on people who do funny things to our flag? Of course not. Though we don’t have a specific law on the Jalur Gemilang, we have some general laws in the Penal Code to handle those who disrespect the Malaysian flag. We have used Section 504 of the Penal Code and Section 14 of the Minor Offences Act 1955 to charge people who disrespect our flag, one of the times being the Australians who stripped down to Jalur Gemilang swimming trunks at the F1 Malaysia Grand Prix in 2016. Section 504 of the Penal Code basically reads that if you insult or provoke anyone to break the public peace, you can be punished with 2 years in jail, or a fine, or both. And Section 14 of the Minor Offences Act says that if you use any insulting or abusive words or behave in such a way, you’ll be liable a fine of up to RM100. Negaraku - The National Anthem So if you don’t stand to attention when the National Anthem is playing, there is an actual statute passed by Parliament that you could get in trouble with. It’s the National Anthem Act 1968, which tells you how to act when the National Anthem is played. Yep, we Malaysians have a specific law for our National Anthem! It’s a law that states everything about the National Anthem from when it is to be played, that it should be shown a mark of respect, and it’s just about the only Malaysian law in which you’ll find a music sheet printed inside to show how the song sounds like exactly. You can also see in the Act’s List of Amendments that you need to pass a law to change the tempo of Negaraku! An interesting thing is that the law provides 3 versions of Negaraku to be played at official events. They’re called the full/Royal version, the abridged version, and the short version. So basically you can think of it as long, shorter, shortest? This is probably one of the ways official procedures recognize the difference in rank since only the Yang di-Pertuan Agong and Malaysia itself get the full salute. Image from TheStar 1) Full Version - From “Negaraku…” The full version is to be played during official ceremonies, when the Jalur Gemilang is brought on parade, hoisting the colours in the Navy, and as a salute to the Yang di-Pertuan Agong or His Royal Highness the Timbalan Yang di-Pertuan Agong. 2) Abridged Version - From the 1st “Rahmat bahagia...” The abridged version is played at official occasions for Her Majesty the Raja Permaisuri Agong and Their Excellencies the Yang di-Pertua-Yang di-Pertua Negeri of Malacca, Penang, Sabah, and Sarawak. 3) Short Version - From the 2nd “Rahmat bahagia...” The short version is played where one of Their Royal Highnesses the Rulers of the States is present. But why do schools play the full version of the song even though the Agong is not there? Don’t worry, Section 3(2) provides that it’s okay to play the full version in school because it’s to teach students how to sing the National Anthem! When it comes to showing respect to the Anthem, Section 8 of the Act requires that the National Anthem be shown respect by standing to attention except when it is played on broadcasts or news-reels. Any person who shows disrespect for the National Anthem in public can be fined up to RM100 or be jailed for up to 1 month. Such disrespect towards the song is defined in Section 8(3) as failure to stand to attention without just cause, or anything that would lower the prestige of the National Anthem in the eyes of the public. So if someone is wheelchair-bound, there’s no need to literally stand as a mark of respect. In case you’re wondering, there’s no law against singing Negaraku badly. As long as your spirit is in tune with the music, it’s okay! :D You don’t need a law to love the country Image from ExpatGo Whether or not there are laws that make rules about how our national symbols should be treated, it’s a big part of Malaysian culture to honour our cultural and national identity. Based on this 2015 incident where the Jalur Gemilang was posted upside down by a British metal band, Malaysians were quick to defend our national flag. While we have our differences as citizens, we also share a lot in common! Happy Merdeka everyone!"
"How to not fall off your chair when given a 50 page contract in Malaysia This article was written by Dinesh Sadhwani, a practicing advocate and solicitor of the High Court of Malaya. Think about the last major transaction you may have entered into - for example to purchase a non-landed property. You probably had to sign a stack of contracts - the sale and purchase agreement with the developer / seller, deed of covenants for the building management's rules, the facility agreement with the bank to obtain financing to purchase the property, the security documents for the financing (deed of assignment, the power of attorney, etc) and possibly various other documents that you don't even remember. You may have found the process overwhelming and, more significantly, not have fully understood what you read before signing - if you'd even read it at all. If so, you are not alone. Many laypersons (and sometimes even lawyers!) face a problem when asked to read a contract. Today, let’s try to understand how to read a contract.Let's start of with the basics, which is... Why is reading and understanding the contract so important?Although it is always good to have a lawyer review a contract before signing it, it is also important for you to read the document, understand the important terms (both commercial / non-legal and legal) and decide whether the terms are acceptable. A lawyer can help to explain the legal implications of the contract, but you cannot expect the lawyer to make a decision on your behalf whether the terms (especially the important terms) are acceptable. At the same time, you may (especially in property rental or car purchase agreements) have encountered agents who will tell you that the contact is ""standard"" so ""don't worry, sign only"". This takes us to the point about “standard” contracts. There is no such thing as a ""standard"" contractThere is, strictly speaking, no such thing as a standard contract. There may be some contracts which are standard as these are prescribed by law, such as the sale and purchase agreement for properties that fall under the Housing Development (Control and Licensing) Regulations 1989, but these are (rare) exceptions rather than the norm. While most contracts of the same type may be substantially similar (e.g. if you take two different tenancy agreements drafted by two different lawyers, you may find a lot of similarities), it is dangerous to assume that the contract in front of you today is similar to the previous contracts that you have been signing on the same subject matter. There are many reasons why contracts of the same type can be different. Some of them are:The person who drafted the contractIn one sense, a contract is like any document, whether legal or not. If you have ever composed or received a love letter or, more likely today, a mushy e-mail or WhatsApp message, you will definitely agree that saying “I am madly in love with you” is not the same as saying “I am fond of you”The same goes with contracts. If you are the tenant and could have your way, you will surely try to draft it as ""The Tenant will try its best to pay the rent by the 10th day of every month"" whereas if you are the landlord, you would surely want it to be drafted as ""The Tenant must pay the rent by the 10th day of every month"". Factual circumstances A contract must take into account the facts of the present case. ""Facts"" in this context refers to the circumstances that are specific to your case. Some of the differences between the present case and previous case may be subtle but significant – this in turn can cause some or many terms of the contract to be different. Bargaining power A party with more bargaining power will obviously try to insist on terms that are favourable to that party. Whether this is fair or ethical is another issue altogether and outside the scope of today’s discussion. That being said, let's now take a look at what you can expect to find in any contract. Here's what you should look out for in any contractLet’s now start to discuss how to read and understand a contract - whether it may be 10, 20 or even 50 pages long. It may be easier to read a contract if you realise that most, if not all, contracts (whether or not of the same type) should usually comprise several major parts such as:PartiesNot this kind, unfortunately. Image from WeKnowYourDreams This is probably the most basic yet important element of the contract. In order for a contract to exist, there must be parties who have agreed to be bound by it. In most cases, this should be a straightforward issue as it will be quite clear who are the parties to the contract. But there can be circumstances where this is not that straightforward. Let’s say your company supplies food and beverages to the hospitality industry. One of your customers owns and operates a hotel known as Five Star Hotel (FSH). The owner and operator of the hotel is Awesome Hotel Sdn Bhd (AHSB). When signing contracts with this customer, should the contracting party / signatory be FSH or AHSB? The answer is AHSB. The reason is because FSH is only a trade / business name and not a legal entity that has capacity to enter into contracts. On the other hand, AHSB is a legal entity incorporated under the Companies Act and should have capacity to enter into contracts. Introduction The introduction to the contract (or sometimes also known as the recitals) is a good place to start if you are trying to understand the background to the contract. A well drafted introduction will explain the parties’ background / business and what do they want to do, or the purpose of the contract. Definitions Image from CourtoonsBefore going further into definitions, some background explanation is necessary. Some of you may wonder what is it with lawyers and their obsession with quote marks and capitalised phrases. The answer is that this denotes that the phrase has been assigned a specific meaning in the contract.Going back to the Awesome Hotel example, there are likely to be a few concepts in the contract between your company and AHSB which will be repeated throughout the contract. If the contract is well drafted, there should be a definitions clause where each repeated concept is assigned a specific phrase. So, for example, the title of the agreement, duration, type of products and hotel branch / location are likely to be assigned capitalised phrases such as ""Agreement"", ""Term"", ""Products"" and ""Hotel"" respectively and placed in one clause. Then, each time there is a reference to these concepts anywhere in the contract, they are likely be referred to as ""Agreement"", ""Term"", Products"" and ""Hotel"". This saves time and avoids the need to mention the whole concept in full across the contract. It also ensures that a concept used in the contract carries a consistent meaning across the contract.Substantive clauses If you are not able to read anything else in a contract, you should, at the very least, try to read and understand the substantive / important clauses. Try to think of substantive clauses as the basic or minimum provisions that a contract of that nature should have. This very much depends on the type of contract and factual circumstances. Going back to the FSH example again - let’s say AHSB awarded your company a tender to supply products to AHSB for a two year period. You have to ask yourself - what are the important terms that should be in the contract that your company will sign with AHSB? Objectively speaking, there should be the following clauses: type of products supplied, quantities, pricing, process of placing orders, delivery, payment, returns, supplier’s obligations, customer's obligations, duration of contract and termination. These are of course non-exhaustive examples of the important clauses. There may be others. Boiler plates Boiler plate clauses are those provisions which you are likely to find in every contract regardless of the type (e.g. whether tenancy agreement, supply contract or sale and purchase agreement for land or shares). The common examples of boiler plate clauses are 'Confidentiality', 'Entire Agreement', 'Assignment', 'Time', 'Succession', 'Waiver', 'Costs', 'Governing Law', 'Dispute Resolution', 'Notices' and 'Counterparts'. However, don't step into the trap of thinking that these are standard. Having said that, if you are really pressed for time (or exhausted after reading the substantive clauses!), you may want to just quickly go through them and try to pay attention to the key ones like 'Confidentiality', 'Costs', 'Governing Law' and 'Dispute Resolution' - again depending on what may be important to you. Attachments / Appendix A contract may sometimes set out certain commercial terms (e.g. products list, pricing, plans, drawings, etc) in an attachment (sometimes called schedule, appendix, annexure, etc) to the contract. The main body of the contract should make reference to the relevant attachment. It is important to read the attachments together with the relevant clauses in the body of the contract. Otherwise, it is like only watching the last thirty minutes of a two hour movie - you will not have head or tail! Signing page As with the parties section, this should be straightforward but it is important to ensure that the right party is named as the signatory.If you signed the contract, you're bound by it!It's very important to point out that once you've signed the contract, you're legally bound to those terms. And no, saying that you didn't read it or that you didn't understand it isn't an acceptable excuse or defence in court. [READ MORE: What happens if you sign a contract without reading it?]It is not possible to cover exhaustive ground when discussing contracts. However, knowing the typical structure of most contracts and how to read and understand them is better than blindly signing without understanding the terms - or more importantly, the embarrassment of falling off your chair. This article is for informational purposes only and should not be taken as legal advice. Every situation is unique and dependent on the facts (ie, the circumstances surrounding your individual case) so we recommend that you consult a lawyer before considering any further action. All articles have been scrutinized by a practicing lawyer to ensure accuracy."
"Pengajaran Di Sebalik Kehilangan Batu Puteh: Ada Sinar Baru kepada Malaysia THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect ASKLEGAL's position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article as it has not been verified by a practicing lawyer.by Mohd Zamre Bin Mohd Zahir | zamrezahir7@gmail.comSetiap orang tidak boleh lari daripada melakukan kesilapan. Baik dan buruk sesuatu perkara pasti ada sebab dan akibatnya nanti. Ia juga sama seperti dalam isu Batu Puteh. Isu tuntutan terhadap Batu Puteh pernah menjadi hangat sebelum ini. Ia masih turut diperkatakan lagi hari ini.Jika dikaji semula, Batu Puteh merupakan batu-batu yang mempunyai keluasan sebuah padang bola sepak yang terletak di Selat Singapura yang menghadap ke arah Laut China Selatan.Perkataan Batu Puteh berasal daripada perkataan Portugis iaitu “Pedra Branca” yang bermaksud batu putih. Ia dinamakan sempena burung-burung camar laut yang mendiami Batu Puteh pada masa yang lalu. Sebahagian pihak berpendapat ia dinamakan sempena tompokan najis-najis berwarna putih yang ditinggalkan oleh burung-burung tersebut di atas Batu Puteh.Imej dipetik dari Straits Time melalui AirmataDarahKeringat.blogspotLatar belakang konflik Pulau Batu Puteh Batu Puteh menjadi konflik dalam isu pertindihan wilayah perairan antara Malaysia dengan Singapura sejak dahulu lagi. Sejak tahun 1979 lagi, masing-masing menuntut Batu Puteh. Namun, jika diamati dari segi jarak perairan, adakah Batu Puteh milik Singapura?Jawapannya adalah tidak. Ini kerana Batu Puteh terletak lebih hampir dengan negeri Johor yang merupakan sebuah negeri di Malaysia. Dari segi logik, Malaysia lebih berhak menuntut Batu Puteh kerana ia terletak lebih hampir dengan Johor berbanding Singapura. Namun, adakah logik ini realiti?Imej dipetik dari The National Archives (UK) Keputusan ICJ 2008 Keputusan Mahkamah Keadilan Antarabangsa (ICJ) yang diputuskan pada 23 Mei 2008 perlu dihormati. Keputusan mahkamah memihak kepada Singapura. Walaupun isu jarak perairan antara Batu Puteh dengan Johor lebih hampir, namun aspek lain lebih dipandang berat oleh pihak mahkamah.Malaysia sebelum ini turut membangkitkan aspek keizinan pembinaan Rumah Api Horsburgh yang hanya boleh diberikan oleh negara yang mempunyai penguasaan dan kedaulatan terhadap Batu Puteh iaitu kerajaan Malaysia melalui Kerajaan Negeri Johor. Surat keizinan telah diberikan oleh Temenggung dan Baginda Sultan Johor kepada pihak Inggeris di Singapura untuk membina Rumah Api Horsburgh pada 25 November 1844 juga membuktikan penguasaan dan kedaulatan Kesultanan Diraja Johor di perairan tersebut. Mengikut surat kebenaran tersebut, pembinaan dan operasi rumah api telah dibenarkan berdekatan dengan Titik Romania atau di mana-mana yang bersesuaian.Malah, rakyat Malaysia khususnya rakyat negeri Johor turut percaya bahawa Batu Puteh adalah sebahagian daripada jajahan takluk kesultanan Diraja Johor bersandarkan kepada Perjanjian Inggeris-Belanda 17 Mac dan Perjanjian Crawford 2 Ogos 1824 yang secara jelas menggariskan persempadanan kedaulatan Kesultanan Diraja Johor yang masih digunakan sehingga ke hari ini. Namun, ia belum cukup kuat untuk meyakinkan pihak mahkamah untuk menyerahkan Batu Puteh kepada Malaysia.Analisa keputusanHakim Awn Shawkat Al-Khasawneh. Imej dari laman United Nations Menurut Hakim Awn Shawkat Al-Khasawneh, jika dilihat dari sudut sejarah, Johor pada mulanya mempunyai kedaulatan terhadap Batu Puteh, namun ia telah kehilangannya atas sebab-sebab tertentu. Antara sebabnya, peta-peta menunjukkan Singapura mempunyai kedaulatan terhadap Batu Puteh.Dalam peta yang diterbitkan oleh Malayan and Malaysian Surveyor General dan Director of General Mapping dalam tahun 1962, 1965, 1970, 1974 dan 1975, Batu Puteh telah ditandakan dengan perkataan “Singapore” atau “Singapura”. Ini menunjukkan Batu Puteh telah menjadi kepunyaan atau penguasaan Singapura.Tambahan lagi, terdapat sepucuk surat daripada Pemangku Setiausaha Kerajaan Negeri Johor bertarikh 21 September 1953 yang menyatakan bahawa kerajaan Johor tidak mempunyai ketuanan terhadap Batu Puteh sekali gus menunjukkan Malaysia telah melepaskan penguasaan dan pemilikan terhadap Batu Puteh.Meskipun jika Malaysia mempunyai penguasaan, pemilikan dan kedaulatan terhadap Batu Puteh sebelum ini, boleh digambarkan di sini seolah-olah pemilikan dan penguasaan itu telah dilepaskan.Di samping itu, Malaysia juga kekurangan bukti bagi menunjukkan bahawa Malaysia mempunyai ketuanan dan kedaulatan yang sah terhadap Batu Puteh serta kekurangan bukti Malaysia menjalankan pemerintahan, kawalan dan pentadbiran di Batu Puteh. Pengajaran dari kehilangan Pulau Batu Puteh Meskipun keputusan ini amat sukar diterima dan ia membawa kerugian yang besar terhadap Malaysia, namun ia memberi satu sinar kepada kita untuk lebih berhati-hati dalam melakukan sesuatu perkara. Pengajaran ini cukup memberikan tamparan yang hebat kepada kita agar sentiasa berwaspada terhadap sesiapa sahaja. Sifat saling menyalahkan orang lain tidak harus wujud dalam menyelesaikan isu ini. Malah, saling melengkapi dan memperbaiki perlu diutamakan.Seharusnya, jika ingin menuntut sesuatu hak, bukti yang jelas lagi konkrit perlu ada. Jika Singapura bukan pemilik sah terhadap Batu Puteh, maka Johor yang mewakili Malaysia perlulah memberikan bantahan secara berterusan (persistently object) yang perlu dilakukan sejak awal lagi bagi membantah Singapura sebagai pemilik atau penguasa bagi Batu Puteh.Keduanya, Malaysia perlu mengekalkan kedaulatan Batu Puteh dan mentadbir sendiri Batu Puteh tanpa campur tangan daripada negara lain.Ketiganya, perlu ada bukti dalam peta-peta bagi menunjukkan Batu Puteh berada dalam bidang kuasa, ketuanan dan kedaulatan Malaysia dan bukannya bidang kuasa Singapura. Di samping itu, Malaysia perlu membekalkan bukti-bukti jelas dan konkrit yang menunjukkan Malaysia sebagai tuan punya yang sah dari segi undang-undang terhadap Batu Puteh seperti Malaysia melakukan kawalan berkala di Batu Puteh. Susulan itu, setelah hampir sedekad Batu Puteh jatuh ke tangan negara jiran, Malaysia mengemukakan tiga dokumen yang diperoleh daripada Arkib Negara United Kingdom sebagai fakta baharu yang menyokong permohonan kajian semula berkaitan kedaulatan Batu Puteh. Malaysia memfailkan permohonan kajian berdasarkan peruntukan Perkara 61, Statut ICJ di The Hague, Belanda pada 2 Februari 2017 selepas menemui tiga dokumen terbabit sejak 4 Ogos 2016 sehingga 31 Januari 2017. Permohon kajian semula kes Pulau Batu PutehPulau Batu Puteh. Imej dipetik dari The Star Dalam permohonan kajian semula itu, Malaysia menegaskan fakta baharu terbabit ialah urusan surat-menyurat dalaman pihak berkuasa penjajah Singapura pada tahun 1958, laporan kejadian oleh pegawai angkatan tentera laut British yang difailkan pada 1958 dan peta beranotasi operasi tentera laut dari 1960-an.Permohonan itu juga memenuhi syarat tempoh yang diperuntukkan oleh Statut ICJ iaitu memfailkan permohonan dalam tempoh enam bulan daripada tarikh penemuan fakta baharu iaitu selepas 4 Ogos 2016 selain dikemukakan sebelum tamat tarikh tempoh 10 tahun daripada tarikh penghakiman iaitu 23 Mei 2008. Kesimpulan Sesungguhnya, setiap yang terjadi pasti ada hikmah yang perlu diambil sebagai pengajaran pada hari muka. Biarpun menaruh harapan dan iltizam yang teguh terhadap keputusan kajian semula Batu Puteh, rakyat perlu bersedia menerima apa sahaja keputusan yang bakal dibuat oleh ICJ kelak.30 juta rakyat Malaysia kini meletakkan keyakinan penuh kepada Peguam Negara, Tan Sri Mohamed Apandi Ali bagi mengetuai pasukan baharu bersama peguam dan pegawai Jabatan Peguam Negara, beberapa profesor dan Queen Counsel terkenal yang dipilih dari United Kingdom untuk mengemukakan hujah-hujah terkini bagi mendapatkan kembali Batu Puteh. Semoga ada sinar baharu buat kedaulatan negara berhubung Batu Puteh. Mohd Zamre Bin Mohd ZahirCalon PhD, Fakulti Undang-undangUniversiti Kebangsaan Malaysia (UKM)"
"5 important clauses you need to look out for in a Malaysian tenancy agreement Regardless of where you are in life, a house is always a necessity. Even if you have moved on from the college-renting days, you might be a homeowner who is looking for some passive income by renting out the space you are not using. Most of us would be familiar with common terms such as what kind of deposit is needed, how long would the duration of the tenancy be and methods on paying rental every month.Regardless of whether you are a tenant or a homeowner, chances are, you would not have read the agreement before signing either because you spaced out after reading the first few lines or because the agent might tell you, ""Aiya. Standard agreement nia. Just sign, no worries.""[READ MORE: What happens when you sign a contract without reading it]The question then is, what exactly are the standard agreements you are agreeing to? Bear in mind that every contract differs but these are the more common situations that may occur. 1. You can end a tenancy early if you get transferred by your companyImage from 230dudes.com If you have worked abroad, you may have stumbled across a diplomatic clause before. Just to clarify, a diplomatic clause is not used to call a ceasefire in case of an argument between you and your landlord. In essence, a diplomatic clause allows you to end a tenancy before the agreed period in the event you are relocated by your company or are no longer capable of working in a state/country. The beauty of this clause is that it gives you the peace of mind of signing a tenancy when you are unsure of how long it would be before your next transfer. Aside from that, it also lays down clearly what you would have to do in order to inform the landlord that you will be moving out. However, diplomatic clauses typically only becomes enforceable after a minimum period of one year of residence (but this is also negotiable). This means that if you were transferred away during the first year of your tenancy, you would probably not be able to rely on this clause. You would then have to refer to the termination clause to see what you can do about early termination. The reasoning behind this one year period is to allow the landlord time to recover what he has paid to any real estate agent. This is what a diplomatic clause might look like in an agreement: ""In the event that the Tenant occupying the Premises is or is about to be:1. assigned, posted, transferred or relocated from Malaysia to another country on a permanent basis;2. required by the relevant authorities to leave Malaysia or is otherwise incapable of working or residing in Malaysia; or3. no longer employed by his Company for any reason whatsoever (this is typically for foreigners working in Malaysia),the Tenant may terminate the Agreement by giving the Landlord not less than two months' notice in writing or paying two month's rent in lieu of such notice. The Tenant may only exercise the right of termination under this clause after the expiry of twelve (12) months from the commencement date of the Term with document proof of transfer, cessation, and termination employment pass (for foreigners) sent by post in a registered letter addressed to the Landlord at the address specified herein.In such event, the Tenant shall hand over vacant possession of the Premises before the expiry of the said notice with prejudice to the rights of the Landlord at law and equity to damages, compensation and consequential losses arising from the Tenant's said repudiation.""Based on the example given above, here is what it says essentially:1. Should you be posted to another country or state, you can use this clause. You can also rely on this clause if you are no longer with your employers or the Malaysian authorities have prevented you from working or living in Malaysia.2. You must produce evidence of this to your landlord. For example, it could be a letter from your employee or the Malaysian authorities. 3. You must give your landlord at least two months' notice that you would be moving away or pay him two months' rental instead of providing a notice.4. The diplomatic clause only takes effect after a whole year of residence.5. You must return the rented property to your landlord before the notice period expires and the landlord would reserve his right to claim for damages from you if he suffers any losses. For example, if you had left the house with gigantic hole in the wall because your television fell down, your landlord can still claim the cost of repairs from you. 2. End of tenancy but want to keep renting?Options to renew are basically clauses in the tenancy agreement that allow you to extend your rental for another term upon the expiry of the first term. For example, if you initially signed a contract for a three years, you may be able to extend the tenancy for another three years if you have a clause like this in your agreement.Some people may wonder why have a clause like this when you can always negotiate for another term at the end of the first one. There are two reasons for this:1. You can negotiate your rental for the second term from day one2. You don't have to run the risk of your landlord refusing to rent you the house for another termHowever, an option to renew can be tricky. It has to be worded in a way that leaves out any ambiguities or it may be void for uncertainty under section 30 of the Contracts Act 1950:""Agreements, the meaning of which is not certain, or capable of being made certain, are void.""So how can you word a clause that would not be void for uncertainty? Typically option to renew clauses fail because they fail to provide a proper mechanism for determining rent for the second term or for failure to indicate how the option is to be exercised. In the case of King's Motors (Oxford) Ltd. v Lax, the option to renew clause was void because it failed to provide a proper mechanism for determining rent but left it to be mutually agreed to by the landlord and tenant. Therefore, an option to renew should properly spell out:1. What terms from the current agreement should be included in the renewal term.2. How rental for the second term is to be decided.3. How is the option to renew exercised.An example of an option to renew that encapsulates the above points is as follows:""The Landlord [shall/may] upon the written request of the Tenant made two (2) months before the expiry of the tenancy grant the Tenant a further term of three (3) years on the same terms agreed herein but without this option to renew at a renewed monthly rental rate not exceeding twenty percent (20%) from the current monthly rental rate.""The reason why the words shall and may are given as options in the example above is because they both carry different legal connotations. If you use the word ""shall"", it means that the landlord must allow you to renew your tenancy if you wrote in two months before the expiry of your current tenancy. However, if you choose to use the word ""may"", it means that your landlord has the option to allow you to renew your tenancy or to refuse to do so. 3. Want to leave early before your tenancy expires?Image from theinformr.comTermination clauses may seem pretty standard. For example, they usually inform you when your rental period ends and how you are supposed to return the property back to the landlord. However, there may be more than meets the eye. Most termination clauses would provide that you would not be allowed to break the tenancy during the first year and should you choose to end the tenancy early after the first year, your security deposit would be forfeited. Some clauses may even state that you would be required to pay your landlord for the unexpired months of the tenancy. There are two questions that arise this. The first is what if you need to terminate the tenancy within the first year? Most termination clauses just state that it is prohibited and leave it at that. The second question is do you really have to pay your landlord the rental for the remaining months of the tenancy? In short, if the agreement says so, then the landlord can make you pay for the remaining months even if you have already moved out.An example of such a clause is as follows:""The Tenant is not entitled to terminate this agreement during the period of this agreement. In event of a breach, the Landlord is entitled to forfeit the Security Deposit and claim for a sum equivalent to the remaining period specified as liquidated damages.""Following the Malaysian case of Berjaya Times Square Sdn Bhd v Twingems Sdn Bhd & Anor (No. 2) where the tenant had decided to unilaterally terminate (meaning the tenant wanted to terminate the agreement but the landlord refused) the agreement, the courts found that the tenant's failure to perform his end of the contract (to complete a three year tenancy) resulted in the landlord suffering from actual losses. This means that while you can terminate your contract despite the existence of a minimum period, you may have to pay your landlord damages in accordance to what has been agreed upon. If you are wondering why can't the landlord mitigate his losses by looking for another tenant instead of forcing you to pay for the unexpired term, the same Berjaya Times Square case tells us that the landlord is not under a duty to mitigate his loss. This point of argument comes from the UK case of White & Carter (Councils) Ltd. v McGregor where the judge was of the view that when only one party chooses to terminate the contract, the other party can either accept it and sue for damages or refuse the termination and continue on with the contract as normal.Further to the above, section 75 of the Contracts Act 1950 also tells us that if a clause in the contract specifies the amount of damages (or compensation) that you have to pay when you breach the contract, then that amount is payable even if no actual losses have been proven.Section 75 Contracts Act 1950:When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for. 4. If your landlord wants to sell the place, he might need to give you first dibsHave you ever been in that situation where you really love the house you are renting but then your landlord tells you to pack up and leave in two months' time because he has decided to sell the property? You are gutted because that house has seen you through plenty of good times plus it is super near your work place! You plead with the landlord and even make an offer to purchase the house from him but he turns you down.This is where a right of first refusal comes in handy. A right of first refusal clause is essentially when the landlord, if he wants to sell the property, has to make an offer to you first. You can then choose to accept or reject the offer. If you choose to reject it, a right of first refusal would typically guarantee that the property would be sold to the third party subject to your tenancy. This means that you would not be left in an awkward position of having to scramble to look for alternative employment. Sometimes, the right of refusal can also provide that if you reject the landlord's offer, he cannot sell it to a third party on more favourable terms. This means that if he offered to sell you the house for RM100,000 and you rejected it, he cannot sell the house for RM50,000 to someone else. An example of how a right of first refusal clause would look like is as follows:""That the Tenant be granted a right of first refusal during the Term where the Property is listed for sale, pursuant to which the Landlord shall:1. prior to accepting any offer to purchase the Property, extend to the Tenant a written offer to purchase the Property on the similar or no less favourable price and terms, to be accepted or rejected by the Tenant within 21 days of the date of the offer; and2. where the Tenant rejects the Landlord’s offer to purchase the Property, the Landlord may sell the Property to any third party purchaser during the Term provided that the Landlord shall procure as a condition of the sale that the purchaser of the Property assumes rights, liabilities and obligations of the Landlord howsoever arising under this Agreement, as if the purchaser had at all times been a party to this Agreement. To effect the foregoing, the Landlord shall, as a condition of the sale, require the purchaser of the Property to enter into either a novation or assignment of this tenancy, and ensure that the Tenant shall continue to enjoy the Property for the remainder of the Term as set out in this Agreement.""5. You can actually not pay rent if your landlord fails to carry out his dutiesImage from kickinthehead.orgThe big question on everyone's mind when your landlord fails to carry out his duties is, ""Can I stop paying rent until my landlord cleans up his act?"" If your landlord is responsible for maintaining the toilets in your house and fails to do so, can you stop paying rent until he completes repairs? Or can you actually carry out the repairs on your own and deduct the amount from the rent?This is known as the entitlement to withhold/set-off rent.An example of such a clause is as follows:""If the Landlord fails to execute such repairs as informed by the Tenant within fourteen (14) days of receipt of such notice, the Tenant may execute such repairs and the costs thereof shall be a debt due from the Landlord which may be recoverable by deducting such debt sums from the rental payable or the Tenant may withhold such rental payable until the Landlord executes such repairs.""In the Malaysian case of JR Lincks Educational Consultants Sdn Bhd v Goh & Sons Enterprise Sdn Bhd, the tenant had notified the landlord that they would stop paying rent until the landlord manages to carry out their side of the agreement. The landlord then, among other issues, sued the tenant for non-payment of rent. The courts relied on the UK case of British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd to rule that the tenant had the right to withhold the rent if the he/she has an actual claim for damages against the landlord. This means that you can't simply decide to withhold rent. You must have suffered genuine losses in order to take this action or you face the risk of getting sued by your landlord for non-payment of rent. There are also some clauses that will allow grant you the right to withhold or set-off rent in cases such as the above, saving you the trouble of uncertainty and going to court.Again, don't assume that all contracts are the sameImage from michaelgaigg.comWhile examples of clauses are provided above to help you understand how such clauses may be phrased, contracts are always negotiable. This means that while there may be standard issues to cover, there is no such thing as a standard clause. A contract, in its bare sense, is a mutual agreement between parties which can be legally enforceable. This means that it is up to you and your landlord to negotiate the terms. With that being said, if you are in the midst of drafting your tenancy agreement, it might be wise to seek legal help instead of copying template agreements online. Contrary to popular belief, convoluted language is not used by lawyers to earn your money, they are used to cover as many possible situations as possible. So, as your teachers would tell you, ""Don't copy blindly!"" This article is for informational purposes only and should not be taken as legal advice. Every situation is unique and dependent on the facts (ie, the circumstances surrounding your individual case) so we recommend that you consult a lawyer before considering any further action. All articles have been scrutinized by a practicing lawyer to ensure accuracy."
"There's no law against upskirt recording in Malaysia. So what can we do? Time to time, we hear about a case of hidden spy cameras, or a peeping tom who “entered the wrong bathroom”, or even creepy guys taking upskirt videos of women. This is called voyeurism, or basically watching or taking pictures/videos of people without their consent. You might have heard of a recent upskirt incident in in a popular Malaysian shopping mall, where according to the post, the victim was taken aback that the pervert who tried to take an upskirt video of her was not immediately arrested. This seems unfair, or perhaps some might see it as the police not doing their job, but it’s not because the police don’t want to do anything. Rather, they can’t do much if it’s not covered by our laws. To get more insight, AskLegal interviewed Lai Mun Onn, law lecturer, for a closer peek at voyeurism laws. There are no specific laws against voyeurism in Malaysia Yep, it’s not technically a crime. Why? Our Penal Code was drafted in a time where cameras were bigger than your arms and made loud clicking noises. It was inconceivable that using spy cameras and little devices to record people secretly was even possible. To date, Parliament has not reviewed and updated it yet. A camera from back in the day our Penal Code was drafted. Image from Ignomini That being said, it could still fall within Section 509 of the Penal Code. Penal Code - Section 509 - Word or gesture intended to insult the modesty of a person Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes upon the privacy of such person, shall be punished with imprisonment for a term which may extend to five years, or with fine, or with both. Law lecturer Mun Onn shared with AskLegal over e-mail interview that the Court of Appeal case of Malinda Ishak v Mohd Tahir Osman & Ors [2009] mentioned that Mohd Tahir Osman was previously prosecuted and found guilty under Section 509 for taking photographs of the victim when she was urinating. This seems to indicate that Section 509 can be used to prosecute voyeurs. However, this Section has limits on how it can be applied, as there must be a word, sound, gesture, or object involved. What if the object is not “exhibited” but hidden instead as with spy camera cases? Does this still apply when a person’s privacy is not “intruded” upon but they were recorded in secret? This is when getting the pervert charged at all is tough for the authorities. Again, this was at a time when a camera was larger than the photographer. Some countries have taken notice and updated their laws. For example, the UK has an example of what a specific voyeurism law would look like in Section 67 of the Sexual Offences Act 2003. But voyeurs are also invading someone’s privacy, could they be prosecuted for that instead? Not always, because... Actually, “invasion of privacy” has a specific meaning in law Image from Quickmeme The right to privacy in Malaysia is recognized in the Penang High Court case of Toh See Wei v Teddric Jon Mohr & Anor [2017] as: “The right to be let alone, the right of a person to be free from unwarranted publicity and the right to live without undue interference by the government or any private individual in matter with which the public is not concerned” Based on that definition, any interference by someone else would be considered an invasion of privacy. “An invasion of privacy will be when such right is violated” - Lai Mun Onn in e-mail interview with ASKLEGAL Yes, what we do in the toilet is no concern of the public. But here lies the problem, being recorded by a spy camera is not something we realize until we actually find the camera - has it actually “interfered” with our life? At this point, the only protection we have against invasions of privacy is in the Personal Data Protection Act 2010. This only covers companies and salespeople invading your privacy by getting your personal number illegally and then calling you for sales. While this is useful for protecting our privacy against rogue companies and salespeople, this won’t keep the voyeurs away. [READ MORE - How to use the PDPA to protect your privacy from prying companies] So what can you do? You can report the incident, but you might not be able to sue “If your privacy is ever invaded, you can lodge a police report and the Attorney General’s Chambers can decide if a criminal case should be started. You can also sue for compensation, but it is not clear whether a tort of invasion of privacy is recognized in Malaysia.” - Lai Mun Onn in e-mail interview with ASKLEGAL Some areas of law (like invasion of privacy) rely a lot on previous court decisions (precedent) as points of reference. We’ll look at some cases on invasion of privacy that have been decided in Malaysian courts. The right to privacy itself is clearly recognized in Malaysia in the Federal Court case of Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] under Article 5(1) of the Federal Constitution. However, the right to sue on privacy is limited in Malaysia, with some conflicting conclusions from judges as you will see below.. In the decision of Lew Cher Phow @ Lew Cha Paw & 11 Ors v. Pua Yong Yong & Anor [2009], Lew Cher Phow and family applied to have a CCTV facing their house removed but their application was dismissed. Later, the case went to trial and the High Court allowed the CCTV to be taken down. Image from lolzombie On the other hand, recent High Court cases have not given us any clarity at all whether invasion of privacy can be sued for. In a recent 2017 case (Toh See Wei v Teddric Jon Mohr & Anor), the judge remarked that a previous case (Malinda Ishak v Mohd Tahir Osman & Ors [2009] - the urinating case mentioned earlier in this article) was decided in favour of the victim because of her trauma and humiliation, but did not say for sure if the tort of invasion of privacy is recognized in Malaysia. Then, the earlier High Court decision of Mohamad Izaham bin Mohamed Yatim v Norina bt Zainol Abidin & Ors [2017] also stated that: “the law does not recognise invasion of privacy as an actionable tort, I am not prepared to make a definitive ruling to the contrary” To clarify, Mun Onn adds that the case law referred to in Mohamad Izaham’s case was not about invasion of privacy, but instead was a defamation claim filed for using a photograph without permission in an advertisement. So long story short, we’re stuck with a couple of cases which do not directly decide on whether invasion of privacy can be sued upon. But you should always make a police report Image from keepcalm-o-matic As you can see, although in some cases there is not much that can be done, there are also cases where the perverts have been convicted or compensation has been given to the victims. Each case depends on its own facts, so even with our limited laws, you should always take your case to the police because you never know what can be done. They guy might not be imprisoned, but you can still make life hard for him. You can also contact a lawyer to see if a lawsuit can be filed for you to get compensation."
"It's illegal to discuss Malaysia's official secrets...but what's an official secret? Do you remember a scene from Indiana Jones: Raiders of the Lost Ark where a box is wheeled into a storage facility and marked, ""TOP SECRET""? While we often see such scenes dramatised by Hollywood, did you know that Malaysia has its own Official Secrets Act (""OSA"") as well? It has been around since 1972 and is based off United Kingdom's Official Secrets Act. Image screencapped from youtube.com via Movieclips Many of us are not familiar with the OSA as we are usually caught in the controversies of the Internal Security Act or the Sedition Act. However, there were 28 cases brought under the OSA from 2011-2016. In fact, even a foreign journalist has been convicted under this Act way back in 1995 for writing about Malaysia's relationship with China and even more recently, Rafizi Ramli had his sentence under the OSA upheld by the High Court. He was appealing against an 18-month jail term for possessing the 1MDB audit report without approval. So the question is, what official secrets can you possibly get in trouble for revealing under this Act? Anything can be an official secret (Really!) Image from tv14.my We would think that the Official Secrets Act 1972 would only deal with sensitive information that spies from other countries would kill to get their hands on. However, this is far from the truth. The Act provides that anything at all can be declared a secret. In order for something to be declared top secret, all it needs is (i) someone who is in the public service and (ii) has been appointed by a minister, in order to declare it as a top secret. Section 2B OSA 1972: ""A Minister, the Menteri Besar or the Chief Minister of a State may appoint any public officer by a certificate under his hand to classify any official document, information or material as “Top Secret”, “Secret”, “Confidential” or “Restricted”, as the case may be."" This means that it doesn't matter if the situation relates to a document or some kind of information or material, it falls under the definition of an official secret once classification has been done -- and it's not only documents or information that can be classified a secret. The OSA also allows physical locations to be classified a ""secret"", referred to in the OSA as a ""prohibited place"". These are typically military areas, government occupied areas, certain detainment areas and anything else the Minister classifies as such. Section 2 (in part): “""prohibited place” means— (a) any work of defence, arsenal, naval, military or air force establishment, barrack, camp or station, factory, dockyard, aerodrome, mine, minefield, ship or aircraft belonging to or occupied by or on behalf of the Government or any telegraph, telephone, wireless or signal station or office so belonging or occupied, and any place belonging to or occupied by or on behalf of the Government and used for the purpose of building, repairing, making, proving, testing or storing any munitions of war, or any photographs, drawings, plans, models or documents relating thereto, or for the purpose of getting or storing any metals, oil, mechanical transport spirit or aviation spirit or minerals of use in time of war; (b) any place not belonging to the Government where any munitions of war, oil, mechanical transport spirit, aviation spirit, fuel or supplies or any documents relating thereto, are being made, repaired, gotten or stored under contract, with, or with any person on behalf of, the Government, or otherwise on behalf of the Government; (c) any camp, barrack or place where prisoners of war, members of the armed forces, internees or detainees are detained; (d) any place which is for the time being declared by the Minister, by order published in the Gazette, to be a prohibited place for the purpose of this Act;"" However, even every day things have been classified as official secrets before. Here are a few examples that you'd probably be familiar with: - Public exam papers (ie, UPSR, PMR) - Air pollution Index - Ghosts - Sex crime statistics You can read more about the reasons behind the classifications in this article. There are too many ways to get arrested under the OSA (Really!) Before we dive into how you can be arrested for failing to provide information about someone else blabbing an official secret, what exactly counts as a wrongful communication of an official secret? This article would break this point up. Communicating an official secret - a.k.a ""bocor rahsia"" Image from washingtonexaminer.com Section 8 tells us that there are several ways you can be found guilty of communicating an official secret. Here is the simplified version: 1. Communicating official secrets to another person who is not supposed to learn of it 2. Using the official secret for the benefit of a foreign country or use it in a way that is against the interests of Malaysia 3. Continuing to possess an official secret even after you have been directed to return or destroy it 4. Failing to take reasonable care or act in such a way to compromise the safety of the official secret If you are caught under this section, you can face up to seven years of jail time. Section 8(2) further explains that even if you are not the person divulging the secret, you can be arrested for receiving information which you know or should know is against the OSA. This provision stands unless you can prove that you really did not want to receive the secret. Section 8(2) ""If any person receives any official secret...knowing or having reasonable ground to believe at the time when he receives it, that the official secret...is communicated to him in contravention of this Act, he shall, unless he proves that the communication to him of the official secret...was contrary to his desire, be guilty of an offence punishable with imprisonment for a term not less than one year but not exceeding seven years."" Spying - a.k.a James Bond time Image from n-tv.de Aside from the above, the OSA also covers James Bond-esque scenarios where you can thrown into jail for life if you were caught spying. Spying occurs when with any purpose that is prejudicial to Malaysia's safety (in this context, with the intention of spying), you enter a prohibited place, to collect and pass on information that can be useful to a foreign country. Section 3: ""If any person for any purpose prejudicial to the safety or interest of Malaysia— (a) approaches, inspects, passes over or is in the neighbourhood of, or enters any prohibited place; (b) makes any document which is calculated to be or might be or is intended to be directly or indirectly useful to a foreign country; (c) obtains, collects, records, publishes or communicates to any other person any secret official code word, countersign, password or any article, document or information which is calculated to be or might be or is intended to be directly or indirectly useful to a foreign country, he shall be guilty of an offence punishable with imprisonment for life."" There are also a bunch of sections that relate to how you can be caught in relation to entering a prohibited place. For example, section 4 basically tells us that you are not allowed to gather any information, including photographs (section 6) in a prohibited place without permission from the authorities. Failure to disclose information to the authorities - a.k.a keeping a secret that you know a secret from the police Image screencapped from youtube.com via ExplosmEntertainment Now that you know what is considered wrongful communication, you have to provide information of such attempts to expose official secrets when you are questioned by any police officer above the rank of Inspector, any member of the armed forces who is on guard duty or by a public officer. Like wrongful communication, a failure to abide by this can land you in jail. Section 11: ""If any person who has any information relating to an offence or suspected offence under this Act fails— (a) to give, on demand, such information...when required to do so by— (aa) any police officer above the rank of Inspector; (bb) any member of the armed forces employed on guard, sentry, patrol or other similar duty; or (cc) any public officer authorized by the Minister, he shall be guilty of an offence punishable with imprisonment for a term not less than one year but not exceeding seven years."" But that's not all! - a.k.a tak habis habis point ini There are also a whole bunch of other sections that can catch you for different kinds of crimes but for the sake of keeping this article digestible, here are the rest of the relevant sections: 1. Section 5 - Making a false statement or declaration to obtain a permit to enter a prohibited place 2. Section 7A - Failure to report a request for official secrets 3. Section 7B - Confiding in a foreign agent 4. Section 9 - Impersonating an official to enter a prohibited place 5. Section 10 - Interfering with a police officer or armed force member in a prohibited place 6. Section 11 - Failing to produce messages when asked by the Minister 7. Section 12 - Harbouring someone that has committed a crime under the OSA But what if I didn't know it was a secret? Image from imgur.com Actually, similar to drug laws where there is the presumption of knowledge and presumption of trafficking, the Official Secrets Act tells us that it is not necessary to show that you were acting with the intention to harm Malaysia's safety or interest. You can be convicted if from your conduct, the circumstances, or your character, a purpose prejudicial to Malaysia's safety or interest can be deduced (Section 16(2)). This ties in with the presumption that any official secrets you have with you, is for the purpose of compromising Malaysia's safety or interest. To explain it simply (though less legally accurate), the authorities don't have to prove that you had intention, they only had to think that you had the intention. [READ MORE: Why does Malaysia want to give a lighter punishment to drug traffickers?] Section 16 (in part): ""In any prosecution for an offence under this Act, unless the context otherwise requires — (3)...it shall be presumed until the contrary is proved, to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of Malaysia."" In addition to the above, section 18 also tells us that you can be arrested without a warrant. This arrest can even take place when the police have reasonable suspicion that you are about to commit a crime under the OSA. As mentioned earlier, punishments vary according to what you were found guilty of and can span from a year in prison to a lifetime in prison. How do I get access to sensitive information? The OSA has come under tons of criticisms since it first came into place and many parties have called for this Act to be replaced with the Freedom of Information Act. However, the good news is that Penang and Selangor have taken the initiative to come up with the Freedom of Information Enactment where if you wish to obtain information, you can apply for it through the respective channels. While federal law does not have the same provisions, it is a good sign that several states have taken steps to be more accessible to the public. At the end of the day, it cannot be denied that there are some kinds of information or places that have to be guarded from public knowledge. The criticisms which are directed towards the Official Secrets Act are mainly concerned with how wide and discretionary the powers are under it to declare something to be an official secret."
"5 persepsi negatif rakyat Malaysia terhadap peguam berdasarkan kaji selidik kami [Artikel ini diterjemahkan dari Bahasa Inggeris. Click here for the original article in English]Tidak kira umur atau berasal dari mana, kita sudah mempunyai persepsi bahawa profesi peguam membawa kata tamak, jahat dan tidak berhati perut – yang itu pun dah dikira kata-kata yang bersopan. Perkataan seperti “tamak” dan “jahat” biasa dipakai semasa sembang borak biasa – tapi tidak ditujukan spesifik kepada masalah yang dihadapi masyarakat berkenaan perkhidmatan guaman dan - yang penting sekali - apa yang boleh dibuat untuk memperbetulkan keadaan ini. Pada suatu tahap, sesetengah orang memang memerlukan peguam, dari hal-hal biasa seperti pembelian harta hingga ke insiden yang lebih dramatik, seperti jika anda disaman atas kes jenayah atau jika anda hendak mengeluarkan saman (sue) terhadap seseorang. Beberapa minggu yang lalu, kami menjalankan kaji selidik tentang pengalaman dan persepsi masyarakat Malaysia terhadap peguam. Bergantung sama ada mereka pernah berjumpa dengan peguam di luar kontrak seperti perjanjian SPA (cth: pembelian harta) atau tidak, soalan tentang pengalaman atau pandangan mereka apabila berunding dengan peguam ditanyakan. Mereka juga ditanyakan bagaimana mahu memperbaiki mutu perkhidmatan guaman di Malaysia. Kita mulakan dengan carta demografik hasil daripada kaji selidik yang telah dijalankan, tetapi jika anda mahu lanjut terus ke poin-poin menarik, anda boleh langkau ke seksyen seterusnya. Informasi carta demografik Kaji selidik ini dibuat, dijalankan, dan di tafsirkan sendiri oleh ASKLEGAL. Hasil yang didapati mewakili populasi umum, jadi istilah “masyarakat” digunakan untuk memudahkan perbincangan. Bahasa Inggeris dan Bahasa Malaysia dipakai dalam kaji selidik ini, dan mendapat sejumlah 262 respon. Ambil perhatian bahawa, secara umumnya kebanyakan daripada respon yang didapati ini adalah lebih kurang sama untuk kedua-dua bahasa. Responden mengikut negeri (3 terbanyak) Kami menerima banyak respon seluruh Malaysia. Selangor mencatatkan nilai yang tertinggi sebanyak (37.2%). Para Responden berusia dalam lingkungan 18 hingga lebih 66 tahun dengan yang terbanyak daripada golongan yang berusia antara 26 – 35 tahun (38.4%). Majoriti responden mempunyai tahap pendidikan hingga sarjana, dan berpendapatan antara RM2,500 – RM4,499 - - walaupun di dalam kaji selidik yang dibuat dalam Bahasa Malaysia, ada segelintir yang berpendapatan antara RM4,500 – RM6,499. Terdapat juga responden yang belum pernah berjumpa dengan peguam untuk khidmat nasihat di luar perjanijian SPA iaitu sebanyak 71.5% (80% untuk kaji selidik dalam Bahasa Malaysia). Dengan kata lain, sejumlah 189 responden belum pernah berjumpa dengan peguam manakala 73 lagi pernah. Sekarang, jom ke bahagian yang lebih menarik… 1. Kesediaan berjumpa peguam Rumusan: Sesiapa yang pernah berjumpa dengan peguam, kemungkinan besar akan mendapatkan lagi khidmat nasihat peguam pada masa akan datang Boleh dijangkakan bahawa responden yang belum pernah mendapatkan khidmat peguam, pastinya enggan berjumpa dengan peguam jika mempunyai masalah terkait dengan undang-undang. … Sebahagian besar responden yang pernah berjumpa dengan peguam sebelum ini ada juga yang mengatakan kemungkinan tidak akan lagi berjumpa dengan mana-mana peguam jika ditimpa masalah pada masa akan datang. Walaubagaimanpun, rata-ratanya golongan ini masih lagi akan mencari peguam untuk khidmat nasihatnya. Apa yang jelas adalah, golongan yang mengatakan kemungkinan tidak akan berjumpa dengan peguam pada masa akan datang, mempunyai pengalaman tidak berpuas hati dengan perkhidmatannya sebelum ini (dibincangkan dalam poin 4) atau memberikan maklum balas negatif dalam kaji selidik terbuka yang dijalankan: “Peguam seharusnya menepati janji. Jangan hanya pandai berucap sahaja. Peguam sengaja memperjanjangkan kes dan saya tidak tahu kenapa sebab kami tidak akan membayar ekstra. Peguam mempunyai banyak helah. – Maklum balas responden Sebaliknya, kebanyakan responden akan meminta bantuan daripada sahabat handai terlebih dahulu: Sebab-sebab utama tidak lagi mahu berjumpa dengan peguam akan dibincangkan nanti di bawah. 2. Pengalaman menggunakan khidmat guaman Rumusan: Anggapan sebahagian orang berjumpa dengan peguam untuk pertama kali adalah tidak memuaskan Pada umumnya, responden yang pernah berjumpa dengan peguam sebelum ini mengatakan pengalaman mereka adalah lebih kepada positif daripada negatif. Hanya 9% sahaja (atau 6 responden) yang tidak berpuas hati dengan perkhidmatan tersebut. Sepertimana yang disebut tadi kebanyakan daripada golongan responden itu kemungkinan tidak akan menggunakan khidmat peguam lagi. Di sini terdapat maklum balas daripada responden yang belum pernah mempunyai pengalaman berjumpa dengan peguam yang menjangkakan banyak negatifnya daripada positifnya: “Saya harus tahu anggaran kos atau masa sebelum berjumpa dengan peguam terlebih dahulu. Dan ya, amatlah sukar jika berunding dengan peguam yang ego.” – Maklum balas responden “Kebanyakan peguam hanya mahu mendapatkan duit client sahaja dan hanya berjanji palsu.” – Maklum balas repsonden 3. Kos Rumusan: Kebanyakan orang menganggap bahawa khidmat peguam adalah mahal, dan sebahagiannya tidak memahami bagaimana kos perkhidmatannya ditetapkan Harga, atau anggaran kos perkhidmatan guaman ini menjadi persoalan bagi kebanyakan responden dalam pilihan jawapan sendiri yang diberikan. 95% daripada responden yang belum pernah menggunakan khidmat peguam mengatakan kosnya adalah amat mahal. Golongan ini berpendapat bahawa kosnya adalah RM2,000 atau lebih. Untuk pengetahuan, nasihat yang diberikan oleh peguam sebenarnya tidak termasuk dalam perkhidmatannya – itu hanyalah suatu perundingan sahaja. Ada kemungkinan inilah yang sesetengah responden tidak faham berdasarkan kaji selidik. Pandangan responden mengenai kos khidmat nasihat peguam Responden yang pernah menggunakan khidmat peguam juga mengatakan atau telah menganggap kosnya adalah tinggi, dengan kadar peratusan 43.5% sementara 40% dari jumlah responden mengatakan kosnya lebih tinggi daripada anggaran mereka: Sejumlah 81% daripada responden ini mengatakan bahawa peguam masing-masing menerangkan tentang kos perkhidmatannya, akan tetapi 1/5 darinya tidak memahami dan 1/5 lagi tidak mendapat penerangan sama sekali: 4. Takut akan peguam Rumusan: Kebanyakan orang sukar untuk bersikap terbuka dengan peguam, lebih-lebih lagi meletakkan kepercayaan Selain daripada kos, terdapat pula faktor lain yang boleh menyebabkan masyarakat takut atau tidak percaya kepada peguam – di mana boleh mempengaruhi ‘mahu atau tidak’ mendapatkan khidmat peguam jika berdepan dengan masalah. Sebahagian responden yang telah mempunyai pengalaman berjumpa dengan peguam mendapati bahawa mereka (peguam) mudah untuk didekati secara amnya. Salah satu soalan yang kami tanyakan adalah, apakah perasaan anda sebelum atau jika mahu berjumpa dengan peguam? Apakah adanya rasa takut, rasa rendah diri atau cemas? Berbandng dengan data antara yang pernah berjumpa peguam dengan yang belum pernah, didapati bahawa tahap kebimbangan responden lebih sedikit di kalangan golongan yang pernah berjumpa dengan peguam: Sungguhpun begitu, ini tidak bermaksud pengalaman sebenar tidak seteruk berbanding anggapan, jika dilihat dari carta di atas. Bukan sahaja itu, 32% daripada golongan yang pernah berjumpa dengan peguam masih lagi takut akan info-info peribadi mereka didedahkan oleh peguam berbanding dengan 41% yang belum pernah. Golongan responden yang pernah berjumpa dengan peguam (81.2%) tidak mempunyai masalah (kurang rasa malu) untuk mendedahkan info peribadi kepada peguam jika dibandingkan dengan golongan yang belum pernah (67.1%). Dilihat daripada respon yang diberikan, responden daripada kedua-dua golongan mengatakan ketelusan peguam dalam contoh kurang memberikan keterangan secara teknikal, menjadi lebih mudah untuk didekati, dan bersikap jujur dan terbuka amatlah membantu. “Masih lagi samar-samar. Kerana undang-undang adalah sesuatu yang jargon (sukar difahami), dan saya rasa ini disengajakan untuk membuatkan kami tidak mengerti.” – Maklum balas responden “Mentang-mentang peguam senior, mereka ingat mereka TUHAN. Mereka seharusnya tidak memberikan janji palsu dan berterus terang jika sesuatu itu boleh dilakukan atau tidak.” – Maklum balas responden 5. Kebolehan untuk mengakses ke perkhidmatan guaman Rumusan: Kebanyakan orang tidak mempunyai masalah untuk mendapatkan khidmat peguam, tapi proses ini boleh ditingkatkan lagi Yang baiknya, mudah untuk mendapat akses ke perkhidmatan guaman di Malaysia, menurut kaji selidik yang dibuat, di mana kebanyakan responden tiada masalah untuk mendapatkan khidmat peguam. Majoriti mendapat peguam daripada kenalan rapat, baik melalui cadangan orang (55%) ataupun melalui kawan atas kawan (32%). Kami juga memberikan pilihan jawapan terbuka bagi soalan ini, dan responnya adalah seperti berikut: Ditetapkan mahkamah (1) Melalui Bar Council (1) Terlintas pandang di akhbar atau media sosial (2) Skype (1) Bergantung kepada persepsi anda, isu tentang mempertingkatkan lagi kemudahan untuk mendapatkan peguam harus dilihat lagi, berdasarkan soalan-soalan yang ditanyakan di laman web dan Facebook kami, di mana kebanyakannya tidak pasti peguam yang mana harus dicari. (cth: Korporat, Keluarga, Jenayah, Syariah). Jurang antara peguam dan masyarakat umum harus dirapatkan Jika boleh disimpulkan daripada respon-respon yang didapati, masyarkat kurang memahami konsep undang-undang dan juga skop kerja peguam. Oleh yang demikian, timbullah persepsi-persepsi seperti di atas. Sementara itu, kos perkhidmatan peguam yang tidak jelas dan sikap peguam yang tidak berhati perut (atau sukar didekati) juga menyumbang kepada adanya jurang pemisah antara peguam dan masyarakat. “Dengan membuat senarai kos perkhidmatan dan menyebarkan pengetahuan tentang common law menerusi media sosial. Menjalankan workshop atau kempen atau forum supaya masyarakat boleh berhubung dengan para peguam dan mengurangkan jurang yang ada.” – Maklum balas responden Semua hal yang kita lakukan sehari-hari ada undang-undang tersendirinya; dari memandu (undang-undang trafik), membeli barang secara online (undang-undang kontrak/pengguna), dan juga dalam kes saman ke atas peminang yang tidak jadi kawin kerana berasa tidak yakin (Serius ada). Jadi, pemahaman asas harus ada supaya anda tidak keliru dengan persoalan-persoalan yang berkaitan dengan peguam dan undang-undang. Tambahan lagi, 58% daripada responden yang pernah berjumpa dengan peguam mengatakan mereka percaya kepada online portal untuk informasi guaman berbanding dengan 72% yang belum pernah berjumpa dengan peguam."
"If you commit a crime overseas and came back to Malaysia, how can you be punished? Have you ever been tempted to do something you know is wrong while in a different country? Maybe you tell yourself that it is okay to steal the hotel towels or defecate in the shower after fighting with the caretaker because by the time they discover the loss and/or make a police report, you would already be on your way back home and that there is nothing that the hotel owners can do!Or maybe you think that it is okay to do something you have a feeling is wrong because you can argue that you have no idea what you did was illegal. However, you might want to read this article to change your mind because you can still be caught and punished for breaking the law in foreign countries. This article will look at three scenarios you might face. You are caught before you even leave the countryImage credit from The StarIf you broke the law in a foreign country, you would not be able to argue that you didn't know about the law as the Latin phrase, ""Ignorantia juris non excusat"" (which means ignorance of the law excuses not) which is practiced in every jurisdiction, does not accept ignorance as a reason for committing crimes. So if you were caught in the act and reported then chances are, you would be brought in for an investigation and charged if there is sufficient evidence. Such as the case of Malaysian Tey Tsun Hsang (pictured above) who was arrested in Singapore for a sex for grades scandal in NUS. An example of this is the case of the Malaysian parents who were convicted for corporal punishment - or what most Malaysians would know as, ""kena rotan"" in Sweden. The parents had been accused of beating their children using a ""rotan"". While many Malaysians would have gone through similar experiences (and some may even consider it a fitting punishment for children) this case illustrates how it doesn't matter what is accepted in Malaysia, if your actions violate the law of a country then you can be punished. Wait. Can the embassy help me?Image from koreangirlsfashioncosmeticmalaysia.blogspot.myMalaysians are always taught to seek the consulate or embassy if they ever land in hot soup overseas. However, there are set rules on what the Malaysian embassy can do to help you.If you are ever detained overseas, the government of the country that you are in has to inform the embassy that you have been arrested. The Malaysian embassy can then contact you and inform your family members. They can also provide you with a list of local lawyers and doctors and advice you on how you can help yourself. However, they cannot help you get out of prison or pay your fines for you. The Malaysian embassy cannot provide you with legal advice as well or intervene in court proceedings for your benefit. This means that while the embassy can and will help you in getting basic information, they cannot be your superhero in situations like these. What if you have already made it back to Malaysia? You might think that you are free because you have already reached home. Sorry to burst your bubble but you can still be punished in one of two ways...Malaysia can punish you...in MalaysiaImage from independent.co.ukThis sounds pretty insane because television shows always teach us that the moment the bad guy gets across the border, he is safe. However, television shows are just television shows after all. Section 127A of the Criminal Procedure Code actually allows Malaysian courts to punish you for committing certain crimes for example, committing terrorist acts (Section 130C Penal Code).So, what does section 127A tell us exactly?It tells us that among several scenarios, the crime you commit overseas is as good as committing it on Malaysian soil. This is so even if you have committed the crime on a ship in high seas or if you committed it as a permanent resident in another country. Section 127A (in part)""(1) Any offence under Chapters VI, VIa and VIb of the Penal Code, any offence under any of the written laws specified in the Schedule to the Extra-territorial Offences Act 1976 [Act 163], or any offence under any other written law the commission of which is certified by the Attorney General to affect the security of Malaysia committed, as the case may be— (a) on the high seas on board any ship or on any aircraft registered in Malaysia...(c) by any citizen or any permanent resident in any place without and beyond the limits of Malaysia...may be dealt with as if it had been committed at any place within Malaysia..."" Malaysia can ship you back to be punishedSome of you might be familiar with the word, ""extradition"". Extradition means the process of deporting someone that has been accused or convicted of a crime. You might remember the case of Mohammad Rizalman Ismail who was a Malaysian envoy to New Zealand. He was charged with indecent assault and flew home to Malaysia. This cause public outrage in New Zealand and Muhammad Rizalman was then extradited back to New Zealand to stand trial.Extraditions can only happen when two requirements are fulfilled: (i) there must be a treaty between Malaysia and the country who wishes to extradite you and (ii) it must comply with the Extradition Act 1992. A quick Google search revealed that Malaysia has extradition treaties with Thailand, Australia and South Korea, to name a few countries. Besides that, given our close relationship with Singapore and Brunei, extraditions involving these two countries are found in the Extradition Act itself (which would be covered in further detail below).Assuming that the country you have committed a crime in has an extradition treaty with Malaysia, then the Extradition Act needs to be looked at. Section 6 tells us that you can only be extradited for an ""extradition offence"". An extradition offence is defined as an offence that is punishable under the laws of the country with at least one year imprisonment or death. The Act also defines extradition offences as attempting or assisting someone to commit a crime which carries at least one year imprisonment or death. Section 6 Extradition Act 1992:""(1) A fugitive criminal shall only be returned for an extradition offence. (2) For the purposes of this Act, an extradition offence is an offence...which is punishable, under the laws of a country...with imprisonment for not less than one year or with death...An offence shall also be an extradition offence if it consists of an attempt or a conspiracy to commit, or an abetment of the commission of, any offence described in subsection (2).""[READ MORE: In Malaysia, you can be arrested for being just planning a crime]However, if you commit a crime in Brunei or Singapore, different sections of the Act would apply. Section 25(2) provides that you only have to commit a crime that is punishable with a minimum six months' imprisonment to be extradited to any one of those countries. Section 25(2):""In this Part, “offence” means a seizable offence or an offence punishable, on conviction, with imprisonment for a term exceeding six months under the laws of Brunei Darussalam or the Republic of Singapore.""There are also other issues to consider in the Extradition Act such as less common scenarios involving diplomatic immunity but that would be dealt with in another article. When in Rome, do as the Romans doImage from theaustralian.comThe law works both ways. Malaysia has also punished foreigners who commit crimes in Malaysia such as the Budgie Nine who were punished for disrespecting the Jalur Gemilang at the Formula One Malaysia Grand Prix post race celebrations. So if you are ever in a foreign country and think that you can get away with breaking laws, you might want to think twice. As this article has shown, being overseas does not mean that you can get to evade punishments. This article is for informational purposes only and should not be taken as legal advice. Every situation is unique and dependent on the facts (ie, the circumstances surrounding your individual case) so we recommend that you consult a lawyer before considering any further action. All articles have been scrutinized by a practicing lawyer to ensure accuracy."
"Here’s why Malaysian pharmacies might refuse to sell you certain medicines This article was written with assistance from the Malaysian Pharmaceutical Society and All Day Pharmacy. How many of you have ever been to a pharmacy where you asked for antibiotics, but they wouldn’t give it to you? Maybe they said it was for your safety, or that you need a prescription. But when you go to your doctor - they sell the medicine to you after your checkup, no questions asked! What’s going on? Doesn’t the pharmacy want your business? If you’ve ever run into a similar situation, you’re not alone. Many people aren’t aware that when going to a doctor, they write you a prescription which the dispensing counter then fills for you. But do understand, pharmacists are not trying to make life hard for you. Just like doctors, pharmacists are also bound by law to make sure you don’t misuse the medication or accidentally poison yourself We expand on this in the points below. Some drugs require a doctor’s prescription There are 2 types of medicine you’ll find in a pharmacy: over-the-counter (OTC) medicine and Controlled Medicine. OTC drugs are those you’ll find on display (like Panadol), while the others are kept in a special enclosed area, usually at the back counter where the pharmacists are. These medicines are known in law as Group B and Group C poisons under the Poisons Act 1952. This is because the ones kept in the back are ones that, when misused, can have adverse effects or even poison you if taken at the wrong dosage or wrong times. These are usually drugs like antibiotics, high blood pressure meds, cholesterol meds, and even viagra… Under Section 21 of the Poisons Act, Group B medicine can only be sold with a prescription from a doctor, dentist, or vet (for your pet of course). And pharmacists may only sell these medications when presented with such a prescription. The prescription is required to have a maximum validity of 3 months, so you’ll have renew your prescription with your doctor. On the other hand, Group C medication are the ones pharmacies can dispense without a doctor’s prescription. These are usually for treatment of minor ailments which pharmacists are trained to recognize. You usually don’t need a doctor’s examination for these unless the sickness does not improve. Pharmacies will record all purchases of Controlled Medicines (Group B & C) as required by Section 24. This is the logbook you usually need to fill with your name, address, and IC number. This isn’t just a record of who buys the medication, it also helps the pharmacy contact you in the event of a product recall. Also, if something goes wrong and you get sent to the hospital, there is a way to track what medicine you’re on (especially if the medicine proves unsuitable for you and caused an allergic reaction for example). Pharmacies have to watch out for illegal medicine Image from New Straits Times It is an offence if a pharmacy sells medicine that does not comply with safety standards or cheats consumers. This ranges from tampering to making false claims about the medicine, as fully covered in Section 10(1) of the Sale of Drugs Act: “Any person commits an offence who sells— (a) any adulterated drug without fully informing the purchaser at the time of the sale of the nature of the adulteration; (b) any drug in any package which bears or has attached thereto any false or misleading statement, word, brand, label or mark purporting to indicate the nature, quality, strength, purity, composition, weight, origin, age or proportion of the article contained in the package or of any ingredient thereof; (c) any drug containing any substance the addition of which is prohibited; (d) any drug containing a greater proportion of any substance than is permitted; (e) any drug for internal use which contains methyl alcohol, isopropyl alcohol or denatured alcohol; or (f) to the prejudice of the purchaser any drug which is not of the nature or not of the substance or not of the quality of the drug demanded by the purchaser.” This applies even if the pharmacists didn’t know that the drugs were tampered with. They are professionally bound by the Code of Conduct to protect everyone they treat. Section 19 explains that it is no excuse for pharmacists to say they didn’t know about the tainted medicine unless they also prove they took all reasonable steps to make sure that the medicine was safe and proper for consumers. There are a lot of questionable medicines around Dangerous health supplements. Image from Straits Times In Malaysia, all medicines need to be registered with the Drug Control Authority (Ministry of Health) as required by the Control of Drugs and Cosmetics Regulations 1984. These are some rules in Regulation 7 that protect consumers from unscrupulous manufacturers, simplified below: 1) A drug must not be mixed with another substance not meant for medicine 2) Any drug must not be a mixture of two registered medicines 3) A drug must not be relabelled as an unregistered name or another drug’s name 4) A drug must not be labelled with any false statements (eg. a vitamin C tablet claiming to have vitamin A) It is an offence under Section 10 of the Sale of Drugs Act 1952 to adulterate any drug without telling the buyer what was done. Normally, some drugs can be too strong for human consumption if it is not diluted (cut) with something else, but this has to be done with the customer’s knowledge. This is because there are drugs which have been tampered with to cheat or harm consumers. Illegal adulteration normally reduces the benefits or value of the medicine, or may even harm the consumer’s health. Some unregistered health supplements have been found to contain a cocktail of controlled medicine, which have landed many people in the hospital before, especially the elderly. Some herbal medicines are illegally mixed with other drugs Image from MIMS Traditional medicine is normally consumed because people want an alternative to modern medicine, and in response to that demand, pharmacies have also began stocking herbal medicine. You might have gone into a pharmacy looking for a particular herbal product, and the pharmacist on duty would have told you that it’s not available. A big reason why is because some “herbal” products have illegal or controlled substances added to them. This is important because herbs are consumed on a day-to-day basis without much thought of an overdose. We casually drink herbal teas at coffee shops and herbal stores or pop herbal products like candy because they’re supposed to be good for us. There have been cases where people consumed herbal products which turned out to contain controlled medicine - like Dato Lee Chong Wei who took herbal medicine that actually had steroids in it. This could put us at risk of an overdose. Also, what if someone is allergic to a chemical is isn’t supposed to be in there? Table II of Regulation 7A in the Control of Drugs and Cosmetic Regulations states that no traditional medicine can contain caffeine, nicotine, paracetamol, or any medicine covered by the Poisons Act 1952. You can stay updated and report suspicious medication here The National Pharmaceutical Regulatory Agency (NPRA) posts updates on their Facebook page and website about medicine and cosmetics which have been found to contain controlled substances. This update for example, contains a list of medicine which had illegal or controlled substances found in them. And this one is an update for cosmetics. If you ever run into unexpected side effects using medicine or cosmetics, help protect other Malaysians by reporting the incident to the NPRA here. You can also report it to your local pharmacist, who will then report it to the NPRA."
"In Malaysia, you can be arrested for a crime even if you don’t actually do it It’s a crime to rob banks, bribe the police, and even commit suicide. If you wanted to commit a crime but didn’t do it in the end, everything is still okay because no harm done, right? To be clear, this isn’t the same as being falsely accused of a crime you never committed, but there are some situations where being involved enough with a crime is also a crime itself. Depending on how far you were committed to those thoughts, you could be convicted of a type of crime known as an inchoate offence. This type of crime covers situations where there was a strong link to crimes being committed, although the actual crime might not have actually taken place or you were not the person committing the offence. There are 3 main types that are recognized in Malaysia. Encouraging or Assisting a Crime GIF from Giphy This is known in law as “abetment of a thing”. In simplified terms, it’s defined in Section 10 of the Penal Code as: 1) Instigating or encouraging someone to do something 2) Commanding someone to do something 3) Conspiring with others to do something illegal 4) Helping someone do something by an act or illegal omission The punishment for abetment is explained in Section 109. Basically, if there is no specific penalty in the law, you will be punished with the same penalty as the offence you abetted. For example, if you leave the door to a shop unlocked to help someone rob the place, you have abetted the crime and are also liable for the same punishment for robbery - imprisonment for up to 14 years. In the same way, if you encourage your friend to go and commit murder, you can both be punished for murder once proven guilty in court. Here’s the catch: it is not necessary for the crime to actually happen. Section 108 provides in Explanation 2 that: To constitute the offence of abetment, it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. So if you instigate your friend to kill someone but your friend refuses and reports you instead, you are still liable for abetment of murder though your friend will go free. The penalties are smaller than the usual if the crime doesn’t happen, but it’s still a crime nonetheless. Crimes punishable with death or 20 years of imprisonment get reduced to 7 years, and other jail sentences have a maximum term of ¼ of the actual crime. (refer to Sections 115 and 116 of the Penal Code for the exact penalties). Planning for a crime Image from chaukhat Have you ever joked about robbing a bank with friends? If you have, you were well on your way to committing an actual crime. All you were missing was the serious intention to rob the bank. Section 120A of the Penal Code calls this a criminal conspiracy. If you agree with friends to do something illegal, and then at least one of you does something to execute that plan, you all could be found guilty of a crime. For example, if you agree to set fire to your crazy boss’s house and one of you buys materials to make a Molotov cocktail, you’ll all be liable for criminal conspiracy. As further explained in Section 120A, it doesn’t matter if what you plan for is not illegal as long as some other illegal act is involved. For example, if you knowingly join a business that extorts money from customers, you may be found guilty of a criminal conspiracy. Explanation 1—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. The punishment for such a crime depends on the severity of what you conspired to do. Minor offences get punished under the Minor Offences Act 1955, most other crimes get up to 6 months of jail or a fine or both. Offences punishable with death or more than 2 years of jail will be punished in the same way as abetment above. Attempted crimes Image from The Simpsons. Attempting a crime but not following through on it is still recognized as a crime in most legal systems. Section 511 of the Penal Code provides that whoever attempts a crime shall be punished with the same penalties as the actual crime itself (unless otherwise specified in the Penal Code). And since Malaysian like discounts, you get a discount on your jail time if you attempted a crime instead of committing one. The law also says that any jail time you get cannot be more than half of the longest term possible. So if you would have gone to jail for maximum of 20 years if you succeeded in your crime, you’ll get sentenced to a maximum of 10 years instead. Sure you still end up in jail, but hey, at least you get a 50% discount right? We need a way to catch criminals before they actually commit crimes Many of us are no strangers to thoughts of harming others when we get emotional. The difference is that we recognize it and don’t take actions on those spur of the moment feelings. These laws were designed to rein in those who have shown themselves to be hostile towards society at large. To put it simply, if you find out someone is planning to murder you, the authorities need the power to catch them before they actually do you any harm. It would not be practical (and not to mention dangerous for you) if the police were to hide in the bushes waiting for your murder-to-be to come out, or wait for the murder to happen first! (yikes)"
"Minimum retirement age in the private sector is not mandatory retirement THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect ASKLEGAL's position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article as it has not been verified by a practicing lawyer.by Joe Fernandez | jfernandez14@yahoo.co.ukThe non-existence of a retirement clause in an employment contract cannot mean that no employer can ever bring an employee’s service to an end by retiring him (or her) at a certain retirement age.The Malaysian Government has, by policy, a mandatory retirement age for its employees. In the private sector, however, the law provides for a minimum retirement age i.e. an age before which employees cannot be terminated except with “just cause and excuse”.The Minimum Retirement Age Act 2012 (the Act) was gazetted on 16 August 2012 and was enforced on 1 July 2013. The Act states that the minimum retirement age of an employee shall be upon the employee attaining the age of 60 years. The employers may fix a retirement age for their employees which is higher than 60.Additionally, the Minister of Human Resources is allowed to gazette a minimum retirement age which is higher than 60 years. A higher minimum retirement age prescribed by the Minister will replace the minimum retirement age stipulated in the Act.However, Section 2 of the Act stipulates that the minimum retirement age does not apply to a person who, before the date of coming into operation of this Act, has retired at the age of fifty five years or above and subsequently is re-employed after he has retired.If an employee in the private sector is “retired” at 60 by the employer, does it amount to “dismissal without just cause and excuse?”The Equality Act 2010 UK, for example, holds that any dismissal for retirement reasons will be unfair unless there’s effective “employer-justified retirement age” (EJRA). Only if the “company policy” can be interpreted as a contractual term which applies directly to the employee “retired”, will the company have an effective EJRA to enforce. Even if a company has a policy which is deemed a term of the contract but they do not enforce it against, for example female secretaries, this will mean the EJRA is discriminatory and not effective.In Malaysia, in the case of Ng Chee Wan v. Ranhill Bersekutu Sdn Bhd Award No. 255 of 2009 [2009] 1 ILR pp.85-86, the Industrial Court cited the Court of Appeal in Colgate Palmolive (M) Sdn. Bhd, v Yap Kok Foong and Another Appeal [2001] 3 CLJ9.The Court of Appeal upheld the decision of the Industrial Court that “an employer could impose a retirement age even though there was no provision in the contract of employment”.Gopal Sri Ram JCA, speaking through the Court of Appeal, approved the decision of the Industrial Court at pp. 13 and 14 as follows:Briefly, he said “the non-existence of a retirement clause in an employment contract cannot mean that no employer can ever bring an employee’s service to an end by retiring him (or her) at a certain retirement age”, or that such an action would be tantamount to dismissal without just cause or excuse”.Quite apart from having the advantage of common sense, Gopal Sri Ram JCA said, “it’s supported by respectable authorities”.In See Teow Chuan & Another v. YAM Tuanku Nadzaruddin ibni Tuanku Jaafar and Others [2007] 2 CLJ 82, The Court of Appeal held that the first and second plaintiffs could continue as the Managing Director and Executive Director respectively of the fifth defendant until they reached the retirement age of 70 years as provided by the Companies Act 1965.The Industrial Court had decided in several cases that where the provision on retirement age is contained in a scheme of benefits and if the claimant has enjoyed any of those benefits, the provision on retirement age will apply to him (her).The doctrine of election as defined in the Concise Law Dictionary, said Gopal Sri Ram, was as follows:“Choice . . . The equitable doctrine of election is to the effect that he who takes a benefit under an instrument must accept or reject the instrument as a whole; he cannot approbate and reprobate. If there is the will of X a gift of A’s property to B, and a gift to A, A can only take the gift by giving his own property or its value to B.”Alternatively, said the Dictionary, he can elect to and reject the gift.Joe Fernandez is a mature student in law and longtime Borneo watcher who has been with Free Malaysia Today and Malaysiakini, among others."
"5 undang-undang baru yang meningkatkan tahap perlindungan haiwan di Malaysia [Artikel asal ditulis dalam Bahasa Inggeris. Click here for the English version] Pada tahun 2015 yang lalu, Akta Kebajikan Haiwan 2015 telah diluluskan oleh Parlimen tetapi baru dikuatkuasakan (akhirnya) pada 18 Julai 2017, di mana terdapat keprihatinan dan perkembangan dari sudut kebajikan haiwan di Malaysia. Beberapa kumpulan kebajikan haiwan menerima dengan hati terbuka akan akta baru itu dengan harapan besar ke atas perlindungan haiwan di Malaysia.Akta ini menegaskan perkara-perkara yang berkaitan dengan haiwan, dan seiringan itu Lembaga Kebajikan Haiwan telah ditubuhkan untuk menguatkuasakan akta baru itu. Salah satu fungsi Lembaga ini adalah untuk memupuk kesedaran orang ramai tentang kebajikan haiwan dan memberi khidmat nasihat kepada menteri-menteri berkenaan. Akta baru ini bukan untuk menggantikan Akta Haiwan 1953 yang lama (atau pindaan 2013); bahkan ia meluaskan lagi skop tentang kebajikan haiwan. Di sini terdapat artikel berasingan tentang latarbelakang undang-undang kebajikan haiwan:[Baca lebih lanjut: The development of animal welfare laws in Malaysia]Sebagai pemilik haiwan pemeliharaan, pengusaha premis haiwan, dan masyarakat biasa: inilah perubahan-perubahan penting yang anda harus tahu dan bersiap sedia di bawah ini.1. Sistem pelesenan baru untuk pengusaha premis haiwanImej dari Humane Society CC.Di bawah akta baru ini, sesiapa yang mengedalikan haiwan untuk tujuan menyara kehidupan haruslah memohon lesen daripada Lembaga Kebajikan Haiwan. Dengan kata lain, khususnya untuk kedai-kedai haiwan, tempat perlindungan haiwan dan sebagainya. Ini tidak termasuk pemilik haiwan pemeliharaan.Lesen dikeluarkan mengikut syarat-syarat oleh Lembaga. Denda tidak mempunyai lesen adalah dari RM15,000 ke RM75,000, jadi ambil perhatian!Setelah mendapat lesen, salinannya harus dipaparkan di premis anda dan harus dibawa ke mana jua jika anda membawa keluar haiwan - Umpama IC haiwan anda. Seksyen 20 Akta Kebajikan Haiwan 2015 – Mempamerkan lesen""(1) Seseorang pemegang lesen hendaklah mempamerkan lesennya di tempat yang mudah dilihat di premisnya.(2) Walau apa pun subseksyen (1), seseorang pemegang lesen tidak dikehendaki untuk menyebabkan salinan lesen itu dipamerkan jika dia menjalankan aktiviti di luar premis itu tetapi pemegang lesen hendaklah memastikan dia atau orang yang bertanggungjawab terhadap aktiviti itu mempunyai satu salinan lesen bersamanya.“ 2. Tanggungjawab baru kepada pemilik haiwan pemeliharaan dan pemegang lesenPemilik haiwan pemeliharaan (terutamanya anjing), sudah mempunyai tanggungjawab tertentu di bawah akta haiwan 1953 yang lama. Pada masa sekarang, pemilik haiwan pemeliharaan dan pemegang lesen harus menjaga keperluan haiwan tersebut dengan baik sesuai dengan Seksyen 24 Akta Kebajikan Haiwan yang menyatakan: (1) Pemunya atau pemegang lesen hendaklah mempunyai kewajipan untuk –(a) mengambil langkah-langkah yang munasabah untuk memastikan keperluan haiwan dipenuhi, termasuklah –(i) keperluannya kepada persekitaran yang sesuai;(ii) keperluannya untuk diet yang sesuai;(iii) keperluan untuk membolehkannya mempamerkan corak kelakuannya yang semula jadi;(iv) keperluannya untuk ditempatkan bersama dengan atau berasingan daripada haiwan lain; dan(v) keperluannya untuk dilindungi daripada kesakitan, penderitaan, kecederaan dan penyakit; danSekiranya pemilik haiwan pemeliharan itu didapati bersalah, haiwan pemeliharaannya akan diambil dan pemilik itu tidak dibenarkan mengambil haiwan pemeliharaan lain untuk jagaan selama 1 tahun. Pemegang lesen pula digantung lesennya selama 5 tahun dan sama juga tidak dibenarkan mengambil haiwan pemeliharaan selama 1 tahun. 3. Memperlakukan haiwan sebagai bahan uji?TIKUUUUSS! Imej dari AboveAverage.Bagaimana pula dengan kes uji kaji terhadap haiwan? Sungguhpun banyak produk telah dapat dihasilkan daripada haiwan dan juga vaksin untuk manusia, sesetengah orang tidak bersetuju dengan perlakuan itu. Dengan itu, Akta Kebajikan Haiwan mempunyai berita baik berkenaan hal tersebut.Semua penyelidikan, ujian dan pengajaran menggunakan haiwan harus mendapat lesen terlebih dahulu atau hanya boleh dijalankan oleh sekolah dan universiti sahaja. Tambahan kepada poin nombor 2 di atas, selain daripada harus mempunyai lesen, haiwan tersebut juga harus dijaga keperluannya dengan baik. Walaupun sakit dan perit tidak dapat dielakkan daripada uji kaji, ia harus diminimalkan sebaik mungkin. Jika tidak, penguji itu akan dikenakan tindakan. Seksyen 26 menerangkan bahawa:(1) Tiada seorang pun boleh menggunakan haiwan dalam penyelidikan, ujian atau pengajaran melainkan jika – (a) semua langkah-langkah yang munasabah untuk memastikan keperluan fizikal, kesihatan dan kelakuan haiwan itu diambil menurut Akta ini dan mana-mana perundangan subsidiari yang ditetapkan oleh Menteri;(b) haiwan tersebut hendaklah menerima, jika boleh dilaksanakan, rawatan yang akan melegakan apa-apa kesakitan atau keperitan yang tidak munasabah atau tidak sepatutnya apabila haiwan itu sakit atau cedera; atau;(c) apa-apa tahap kesakitan atau keperitan itu dikurangkan seminimum yang mungkin dalam hal keadaan apabila ciri penyelidikan, ujian atau pengajaran itu tidak dapat mematuhi perenggan (a) atau (b).Pesalah akan dikenakan denda antara RM20,000 hingga RM100,000 dan/atau penjara selama 3 tahun.4. Tidak perlu waran untuk pemeriksaan bukti penganiayaan haiwan di premis andaDi bawah Seksyen 40 akta baru tersebut, pihak kebajikan haiwan boleh memeriksa premis anda tanpa waran untuk mencari jika terdapat bukti-bukti adanya penganiayaan haiwan. Biasanya waran dikeluarkan menurut Seksyen 56 Kanun Prosedur Jenayah tetapi mereka boleh memeriksa terus premis sebelum adanya waran jika dipercayai bukti-bukti akan musnah sementara menunggu waran. Pegawai-pegawai kebajikan haiwan ini mempunyai kad kuasa masing-masing. Sama ada mereka ada waran atau tidak, anda mempunyai hak untuk meminta mereka menunjukkan kad tersebut terlebih dahulu sebelum menjalankan pemeriksaan. Jika tidak, mereka sama sekali tidak boleh melakukan penggeledahan. Ini terdapat dalam Seksyen 38(2) yang menyebut:“Bila mana seseorang pegawai kebajikan haiwan menjalankan mana-mana kuasa di bawah Akta ini atau mana-mana perundangan subsidiari yang dibuat di bawah Akta ini, dia hendaklah, apabila diminta, mengemukakan kepada orang yang terhadapnya kuasa itu sedang dijalankan, kad kuasa yang dikeluarkan kepadanya di bawah subseksyen (1).”5. Hukuman berat bagi kekejaman haiwan dan lebih perlindungan kepada haiwanImej dari PuppeycideDB.Undang-undang berkenaan kekejaman terhadap haiwan ini telah berkembang skopnya dari asalnya 7 item dalam Seksyen 44(1) Akta Haiwan 1953 kepada 21 item di dalam Seksyen 28 Akta Kebajikan Haiwan 2015. Ini termasuk mencacatkan, mengabaikan, menggunakan alat-alat bahaya ke atas haiwan – seperti sukan menembak dan melaga-lagakan haiwan. Pelaku boleh dikenakan hukuman denda antara RM20,000 dan RM100,00 dan/atau penjara selama 3 tahun. Akan tetapi terdapat 3 pengecualian, iaitu:a) apa-apa perbuatan yang telah ditentukan oleh Lembaga sebagai tatacara pengurusan veterinar yang diterima pakai;b) apa-apa pengumpanan mana-mana haiwan perosak bagi maksud kesihatan awam, pengawalan penyakit, pengawalan populasi dan penempatan semula bagi pemuliharaan yang dilakukan oleh pihak berkuasa yang sah atau mana-mana orang yang diluluskan oleh Lembaga; atauc) haiwan tersebut digunakan sebagai makanan untuk haiwan lain menurut tabiat pemakanan semula jadi haiwan tersebut. (cth: memberi tikus hidup untuk dimakan ular)Pembunuhan haiwan kini telah terkawal oleh undang-undang baru. Sebelumnya, terdapat kes-kes di mana pegawai-pegawai tempatan membunuh haiwan-haiwan liar dengan cara yang kejam. Seksyen 30 dalam akta baru 2015 itu ada menyatakan bahawa, tiada seorang pun boleh membunuh dengan menembak dengan senjata api mana-mana haiwan melainkan jika dibenarkan oleh pihak berkuasa veterinar dalam kecemasan atau demi kawalan penyakit. Pembunuhan haiwan yang sakit teruk atau yang sedang mengalami penderitaan harus mendapat perakuan pihak berkuasa veterinar atau doktor veterinar berdaftar (seperti jika haiwan tersebut mengalami sakit yang tidak dapat dirawat seperti terlibat dalam kemalangan).Kebajikan haiwan kini menjadi keutamaan dalam undang-undang MalaysiaPenguatkuasaan undang-undang tidaklah begitu kukuh sebelum ini, dan hukuman denda (hanya serendah RM200) tidak setimpal dengan kelakuan penganiayaan dan kekejaman terhadap haiwan pada masa sekarang. Kemudian ia dinaikkan ke RM50,000 melalui Akta Haiwan (Pindaan) 2013 memandangkan nilai RM200 adalah tinggi pada tahun 1953 dahulu. Hukuman denda yang dikenakan sekarang sebanyak RM100,000 menunjukkan bahawa kes penganiayaan haiwan adalah serius dan tidak boleh diambil remeh. Lihatlah sekeliling kawasan anda jika terdapat kes-kes sebegini dan anda boleh menghubungi talian 999 untuk melaporkan kepada pihak berkuasa. Undang-undang adalah hanya sekadar tulisan di atas kertas jika ia tidak dikuatkuasakan.Jika anda mahu mengetahui lebih lanjut mengenai undang-undang apa yang dikuatkuasakan ke atas pembunuhan haiwan untuk dijadikan makanan atau bagaimana pula halnya jika membunuh nyamuk, bacalah artikel berkenaan Akta Haiwan 1953 di sini."
"You picked a bad business partner. Can Malaysian law help save your business? This article was written by Dinesh Sadhwani, a practicing advocate and solicitor of the High Court of Malaya. In one sense, business relationships are like romantic relationships. When we enter into a new romantic relationship, we initially look at everything with misty eyes and it all seems hunky dory. However, it is challenging for these sentiments to last forever - any relationship will have its ups and downs. Image credit: Manchester Evening News The same goes with business relationships. When running a business, we may decide to collaborate (e.g. through a partnership or joint venture) with people that share our vision or bring additional resources or expertise to grow the business. At the outset, the parties usually can't wait to get the collaboration started and everyone is initially very enthusiastic and optimistic. Unfortunately, sometimes, not all remains smooth. Cracks start to appear in the relationship. Differences arise, arguments happen and, worst of all, the partners stop cooperating - sometimes irreconcilably, despite the parties' best efforts in negotiating an amicable settlement. Image credit: Richard Brokenshire Marketing What can you do when this happens? Let's take a look at two separate scenarios further below and the possible remedies. Before doing that, a quick technical clarification on the scenarios. We usually refer to ""company"" and ""partnership"" interchangeably. However, legally speaking, they are different. A company is governed by the Companies Act 2016 whereas a conventional partnership is subject to the Partnership Act 1961. This will be discussed further in the scenarios discussed below. Scenario 1 - Fighting Partners & Co (Conventional partnership) Background Under this scenario, let's imagine that you are in partnership with another person (let's call him Mr. PE) and jointly running a business under this partnership (let's call it Fighting Partners & Co). You and Mr. PE are joint signatories to Fighting Partners & Co's bank accounts i.e. every cheque requires both your and PE's signatures. Your relationship with Mr. PE unfortunately sours to the point where Mr. PE refuses to sign cheques. This of course starts to cause problems to the business (e.g. salaries, rental, suppliers, etc are not paid). Possible solution - Dissolve the partnership under Section 37 of the Partnership Act What can you do in this case? In the case of a partnership, the possible remedy is to apply to the court under section 37 of the Partnership Act for an order to dissolve the partnership. Image credit: FloridaGunSupply The relevant part of section 37 reads as follows: On application by a partner, the court may decree a dissolution of the partnership in any of the following cases - [...] (c) when a partner, other than the partner suing, has been guilty of such conduct as, in the opinion of the court, regard being had to the nature of the business, is calculated to affect prejudicially the carrying on of the business; [...] In simple English, this provision can be used where the partner in question has done something (or purposefully did not do something which should have been done) and this has affected the partnership’s business or even brought it to an effective halt. We could argue that this is precisely the situation here. By not signing the cheques, Mr. PE is causing the business to choke and come to a standstill - while being fully aware that this will happen. Scenario 2 - Fighting Partners Sdn Bhd (Company) Background Let's imagine that you are a shareholder and director of a company (let's call it Fighting Partners Sdn Bhd) together with another person (let's call him Mr. CE) and carry on business through the company. You and CE are also joint signatories to Fighting Partners Sdn Bhd's bank accounts. Similar to the above scenario, the relationship sours and CE holds up the business. What can you do? In the case of a company, there are two possible options here. The first possible solution: Breach of director's duties under Section 213 of the Companies Act The first option is to try to use section 213 of the Companies Act. Pursuant to the Companies Commission of Malaysia Act 2001, the power to administer and prosecute offences under the Companies Act lies with the Companies Commission of Malaysia. The relevant parts of section 213 read as follows: (1) A director of a company shall at all times exercise his powers in accordance with this Act, for a proper purpose and in good faith in the best interest of the company. [ ... ] (3) A director who contravenes this section commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding five years or to a fine not exceeding three million ringgit or to both. You could try to invoke section 213(1) and argue that Mr. CE is not acting in good faith in the best interests of the company as he is causing a hold-up to the company's business for reasons that are irrelevant to his duty as a director (i.e. the breakdown of his relationship with you). By trying to “sabotage” you, he is effectively “sabotaging” the company. However, it's also possible for Mr. CE to come up with ingenious counter arguments - for example, that he is blocking payments as you are not managing the company well and he is merely ""doing his duty"" as a director to ""safeguard the company's assets"". Whether CE's counter-argument can hold water depends, of course, on the evidence that he can present. The second possible solution: Oppressive conduct under Section 346 of the Companies Act The second option is to apply to the court under section 346(1) of the Companies Act. The relevant part of section 346(1) reads as follows: (1) Any member or debenture holder of a company may apply to the Court for an order under this section on the ground - (a) that the affairs of the company are being conducted or the powers of the directors are being exercised in a manner oppressive to one or more of the members or debenture holders including himself or in disregard of his or their interests as members, shareholders or debenture holders of the company; or [ ... ] In a nutshell, section 346 allows a shareholder to seek a remedy from the court if the shareholder has been oppressed, prejudiced or unfairly discriminated against or his interests have been disregarded. In the landmark decision Re Kong Thai Sawmill (Miri) Sdn Bhd) [1978] 2 MLJ 227, which involved the equivalent provision to section 346 in the old Companies Act 1965, the court held that this provision catches a wide range of actions, including directors' neglect of duty. It is to be noted that, pursuant to section 347, a person may bring an action for oppression in the name of the company (compared to the individual shareholder in the previous paragraph). However, this can only be done with the court's permission. A section 347 action may be relevant if the company (but not the other / minority shareholders) is aggrieved by the actions of a particular shareholder (who is the majority shareholder and in control of the company). What can the court do if you can establish a case under section 346(1) ? Let's look at section 346(2) of the Companies Act: (2) If on such application the Court is of the opinion that either of those grounds is established, the Court may make such order as the Court thinks fit with the view to bringing to an end or remedying the matters complained of, and without prejudice to the generality of subsection (1), the order may — (a) direct or prohibit any act or cancel or vary any transaction or resolution; (b) regulate the conduct of the affairs of the company in the future; (c) provide for the purchase of the shares or debentures of the company by other members or debenture holders of the company or by the company itself; (d) in the case of a purchase of shares by the company, provide for a reduction accordingly of capital of the company; or (e) provide that the company be wound up. Essentially, under section 346(2), the court has wide powers to make an order which the court thinks fit with the view of solving the issue. Items (a) - (e) set out above are a non-exhaustive list of the court's powers. Note that the court's powers include ordering for the company to be wound up, which is of course the most drastic remedy. A well-written agreement will save you a lfot of headache As the saying goes, there is no point in crying over split milk. Once the damage has been done, the mess has to be cleaned up - and this may sometimes require a time consuming and costly dispute resolution process. Having said that, the irresistible question that is likely to arise in the minds of those of you who have been fortunate enough not to have fallen into this problem or even those of you who are seeking to rebound from a business arrangement gone wrong - how can we avoid getting into this problem in the first place? Before entering into the relationship with your fellow partner or shareholder, it is always best to sign a comprehensive and well drafted agreement (e.g. partnership agreement or shareholders' agreement) to regulate the relationship. The agreement should clearly mention each party’s rights and obligations. No doubt that there are potential remedies in law as we discussed above – however, the existence of a clear agreement makes it easier to argue and hopefully avoid a protracted battle. This is course hinges on a fundamental assumption - that a party who signs an agreement will honour his or her end of the bargain. Otherwise, the parties may have to still see each other in court! This article is for informational purposes only and should not be taken as legal advice. Every situation is unique and dependent on the facts (ie, the circumstances surrounding your individual case) so we recommend that you consult a lawyer before considering any further action. All articles have been scrutinized by a practicing lawyer to ensure accuracy."
"My boss just fired me for no reason, what can I do now? Imagine that your boss suddenly walks over to your desk and hands you a letter that only says: ""The Company has decided to terminate your employment. Pursuant to your employment contract, you will be given a one month notice period, taking effect from the date of this letter"". Basically, you've just been fired. Your boss won't tell you the reason you're being fired, but says you would be receiving a termination package. Many Malaysians faced with this situation may just assume nothing can be done, accept the termination package, and leave after the notice period. But the good news is, the Malaysian legal system actually provides relief for cases like these. Your boss cannot fire you for no reason Image from cilisos.my Our mindset about hiring and firing employees may have been exacerbated by television shows that depict characters just leaping over the counter and flamboyantly telling their bosses bye or by bosses just kicking the staff out without notice. However, it is important to note that Malaysia's employment law actually differs from what is known as the principle of ""At-will employment"". ""At-will employment"" is kind of like what you see in movies, that either the boss or the employee can walk off without reasons or repercussions. Image from frqntflyr.com Instead, Malaysia requires employers to provide the employees with reasons for dismissal. This is called termination with just cause and excuse and essentially provides that if your employer fired you with no reasons or with faulty reasons, then you might be able to bring your case to court. However, as an employee, you do not have to provide a reason if you want to resign. This is provided for under section 20(3) of the Industrial Relations Act 1967 (""IRA 1967"") which states that any workman who feels that he has been dismissed without just cause and excuse (also typically referred to as unfair dismissal), can write in to the Director General of Industrial Relations in order to request for his job back: Section 20(3) of the Industrial Relations Act (in part): ""Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment..."" So what does it mean to have ""just cause and excuse""? There is no set definition for what amounts to just cause and excuse in the statute because what amounts to a just cause differs from situation to situation. It could range from employee misconduct such as thievery, fighting in the office and continuous tardiness. It could also cover situations which involve retrenchment. The key takeaway point from this is that regardless of whether you had acted in a way that prompted a dismissal or not, your boss MUST give you a reason for firing you. But what if your boss did not give a reason? Does this mean that you would go to the Industrial Court immediately? Actually, there is one step before that... First, you would have to try to negotiate a settlement The first thing you would have to do is file a complaint with the Director General within sixty days of you getting fired. What would happen is that the Industrial Relations Department would arrange for a meeting between the employer and yourself in order to reach an amicable solution. If a solution is reached, the officer in charge would draw up an agreement recording the terms of the settlement and the matter would be considered resolved. It is important to note that during this conciliation stage, you cannot be represented by a lawyer. You can only represent yourself or if you belong to a trade union, you can be represented by an officer or employee of that trade union. Section 20(1A) IRA 1967: ""The Director General shall not entertain any representations...unless such representations are filed within sixty days of the dismissal..."" Section 20(6)(b) and section 20(7) IRA 1967: ""a workman may— (i) represent himself; (ii) where he is a member of a trade union of workmen, be represented by any officer or employee of such trade union of workmen...(7)...a workman or employer shall not be represented by an advocate, adviser, consultant or by any other person whatsoever."" If an agreement could not be reached, the matter would then be reported to the Minister of Human Resources, who decides whether or not to refer your case to the Industrial Court. The Minister would typically refer the cases when there are serious issues to be decided and if the claim is valid. ""The Minister of Human Resources...has the discretion to refer the matter to the Industrial Court if he is of the view that the claim discloses serious issues of law or fact to be decided, and/or if he finds that the claim is not frivolous or vexatious."" - Donovan Cheah, founding partner of Donovan and Ho in an interview with the Malaysian German Chamber of Commerce and Industry. Hence, if the Minister thinks that you have a legitimate claim, he would forward your claim to the Industrial Court. When negotiations fail, that's when you end up in the Industrial Court Image from citizenjusticenetwork.org An Industrial Court proceeding is actually handled, more or less, like a civil court case. This means that you would be able to get legal representation, produce bundles of evidence and use witnesses. The case would usually be heard by one chairman sitting alone and generally, proceedings would not be as strict as those in the civil courts because following section 30(5) IRA 1967, the Industrial Court is supposed place more importance on fairness rather than proper legal procedures: ""The Court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form."" AskLegal spoke to Amirul Izzat, a lawyer specialising in employment law who told us that: ""The basic rules of evidence still apply in an Industrial Court trial but it would be given a more relaxed approach as this court is a court of equity that is empowered by the statute to determine matters based on its substantial merits. For example, strict technicalities relating to inadmissibility of hearsay evidence may not be applied rigidly. However, this is still dependent on a case by case basis."" - Amirul Izzat, employment lawyer with Donovan and Ho, in an interview with AskLegal. Aside from conducting the proceedings in an fair manner, the chairman can also decide on the proper compensation that you will receive. This means that even though section 20(3) that is quoted in the previous point mentions that you can apply to be reinstated to your job, the Industrial Court can actually give you another award instead, such as asking your employer to pay you damages. Take for example the case of Justin Maurice Read v Petroliam Nasional Berhad (Petronas) where the court decided that the relationship between the employer and employee was bad beyond repair, so reinstating the employee to his former position was unworkable. The court then proceeded to award the employee which damages which was his back wages counted from the date of his dismissal to the date of the court hearing. What if I was not fired but forced to resign? Image from employment-lawyers.ca If your boss did not fire you but created a work environment that made it difficult for you to work in which led to you resigning, you may have a case for constructive dismissal. Constructive dismissal is when your boss does not outright fire you but because of how he acts, it might actually be an unfair dismissal. There are many situations that can lead to a constructive dismissal but an example of a scenario is: Your colleagues have been taunting and ostracizing you in the office. This situation makes you uncomfortable and unhappy so you approach your boss in hopes of a resolution of the conflict or to transfer you to a different department. However, your boss tells you that he will investigate the matter but nothing happens. Unable to bear with the situation in the office, you resign. If you try to bring a case of constructive dismissal, you have to prove several factors. In the UK case of Western Excavation (ECC) Ltd v Sharp, the judge decided that you must prove that a root (core) part of your contract was breached, so your decision to leave the company was due to this breach than for any other reasons. For example, if you claim that you had to leave the company because your boss failed to provide you with a personal stapler and you had to borrow one from your neighbour, your case might not even reach the Industrial Court as having a personal stapler may not be seen as a root part of your contract. However, if you left because you felt unsafe in your working environment, that reason may actually be one that goes to the root of your employment contract. In other words, failing to provide a safe working environment is a serious breach of your contract. For context, in the Justin Maurice case mentioned above, the employee had actually been assaulted by a manager and his work locker was broken into. Due to failures of the company to carry out proper investigations, the court found that a fundamental term of the contract had been breached due to the failure to provide a safe working environment. At the end of the day, if you are facing difficulties at your workplace or have been laid off without reason, it might be wise to remember that proper documentation would help if you want to file an unfair dismissal claim and bear in mind that you only have sixty days to file a claim."
"Why does Malaysia want to give a lighter punishment to drug traffickers? The feature image is a screencapture from a movie. Malaysia is one of several countries that still continues to impose the death sentence for certain crimes. Aside from the more familiar crimes such as murder or kidnapping, the death sentence also applies for less familiar ones such as being part of a mutiny in the armed forces (section 132 of the Penal Code) or if a rape results in death (section 376(4) of the Penal Code). This article will focus on drug trafficking, which is punishable with a mandatory death sentence. The word 'mandatory' might be used flippantly at times in every day life but it actually has immense legal weight. The death penalty, or capital punishment as it is sometimes referred to, is only mandatory for certain crimes. Mandatory death sentence means that the judge has no other choice but to sentence the drug trafficker to death if found guilty. In contrast, if the death sentence is NOT mandatory, then the judge can either sentence the criminal to a certain number of years in prison or sentence him/her to death if the law provides for it. And not too long ago, Malaysia has abolished the mandatory death sentence for drug trafficking. In even more recent news, the government announced a freeze on all death sentences given out, in a push to abolish the death penalty. There are a number of reasons for this, but one of the main points of argument is... It does not take a lot to find you guilty of drug trafficking Image from malaymailonline.com Currently under section 39B of the Dangerous Drugs Act 1952 (""DDA 1952""), if you were found guilty of trafficking, making an offer to traffic or preparing to traffic drugs, you will be sentenced to death. This shows that the law is especially harsh towards drug traffickers (or potential traffickers). The catch is that it's theoretically easier to find you guilty of drug offences due to the existence of legal presumptions. A legal presumption is essentially the courts presuming something to be true until the evidence shows otherwise. An example of this is the presumption of ""innocent until proven guilty"" in criminal cases. There are a plethora of presumptions related to drug offences that can be found in section 37 of the DDA but for the sake of simplicity, this article will only look at the presumption of possession and knowledge (found in the same subsection) and the presumption of trafficking. Presumption of possession and knowledge The presumption of possession and knowledge is exactly that warning that parents always give you when you are headed off to the airport - ""Don't simply agree to carry packages for people"". You may roll your eyes and think your parents are being excessively paranoid, but it's actually really important. The presumption of possession and knowledge works by assuming that if you are found with drugs on you, then you are in possession of those drugs and you were aware of their nature. For example, your friend asked you bring a bottle of talcum powder to Japan and when you go through customs, it turns out that the talcum powder was actually heroin. The presumptions would then apply here. Section 37(d) DDA: ""any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug..."" A car hood filled with drugs. Image from twitter.com via @CustomsBorder Presumption of trafficking The presumption of trafficking, on the other hand, is assuming that if you were found with a certain weight of drugs on you, you were planning to traffic the drugs - which is a higher penalty than having drugs for your own use (self-administration). Section 37(da) DDA lists down the specific weight of a whole range drugs but, for example, all you need is to be found with 15 grams of heroin to be assumed to be trafficking heroin. Section 37(da) DDA (in part): ""any person who is found in possession of— (i) 15 grammes or more in weight of heroin...shall be presumed, until the contrary is proved, to be trafficking in the said drug..."" When both these presumptions work together, you can see how easy it is to be found guilty of trafficking and then sentenced to death. An example of how the double presumptions work is: Your friend hands you his bag to hold while you are at a club. Suddenly, a police raid happens and 20 grams of heroin is found in that bag. You will be charged with drug trafficking because the authorities would immediately presume that the bag you are holding is yours and that you had intended to traffic the drugs. However, an important point to note is that these presumptions are rebuttable. ""Rebuttable"" in this sense means that the presumptions stand until you prove to the court otherwise. For instance, in the example above, the presumption of possession can be rebutted if your friend's wallet and ID also happened to be in the bag, providing an argument that the bag does not actually belong to you. [READ MORE: Here are more things you need to know about Malaysian drug laws other than the death penalty] The good news is the law has changed! Image from dpj0.wordpress.com While many of us think that the mandatory death penalty has always been around in Malaysia, it is actually not. It was actually only introduced in 1983 as part of the government's war on drugs. Despite that, statistics have shown that the number of people arrested for drug trafficking has increased over the years. This means that the mandatory death sentence has not been effective in curbing drug trafficking. After the realisation that harsher punishments do not equate to lesser the crime, the Malaysian Cabinet has agreed to remove the mandatory death sentence and on November 30th, 2017, Parliament voted to remove it as well. This move has been widely accepted by humanitarian bodies as well as some Malaysian politicians. “If it is wrong to take someone’s life, then the Government should not do it either. It’s ironic and not correct...No criminal justice system is perfect. You take a man’s life and years later, you find out that another person did the crime. What can you do?” - Datuk Seri Nazri Abdul Aziz, in an interview with The Star, 29 August 2010 And as we mentioned earlier because of an October 2018 announcement by Law Minister Liew Vui Keong, even if judges give out or has given out death sentences, the carrying out of those sentences will be stopped. Oh, and the updates don’t end there. As of the time of writing (5th April 2019), the Federal Court announced that the double presumption for drug trafficking in the Dangerous Drugs Act has been struck out. This is due to the fact that, the double presumption goes against the presumption that everyone is innocent until proven guilty – a right that’s available in Article 5(1) of the Federal Constitution. What does this mean for drug traffickers? Australian Maria Exposto was arrested at KLIA for drug trafficking. Image from abc.net.au Given that there’s a halt to carrying out of the death sentences for now, those found guilty of trafficking drugs will now be looking forward to a long stay in prison. Secondly, those on trial for drug trafficking will now have an easier time proving their defence. Which also means that the prosecution has more work to put in, if they want to prove a person is guilty of trafficking. But this doesn’t mean that the prosecution has to go beyond their duty, they have to prove drug trafficking like they have to prove any other crime; the prosecution has the duty to prove that someone is guilty beyond reasonable doubt. But whatever happens, removing the double presumption doesn’t mean that drug traffickers will go unpunished. It is still possible for the prosecution to prove a drug trafficker is guilty, they just have to do it according to constitutional principles. Nevertheless, it is always wise to exercise caution such as not leaving your bags unattended in public areas or not to accept packages from strangers."
"Do lawyers in Malaysia shout ""OBJECTION!"" like in TV shows? THE MYTH A lawyer can shout ""objection!"" whenever another lawyer says something he does not agree with. THE BACKGROUND: Quick, ask someone to pretend they are a lawyer! 90% of the time, they will bang the table and shout ""Objection!"" We've seen lawyers do it on television and movies all the time. This common phrase is probably the most popular bit of 'courtroom jargon' that most people know, most likely because of how simple yet dramatic it is - as exemplified by the Ace Attorney series. But does this really happen in real life? Do Malaysian lawyers really yell ""Objection"" whenever they hear something they don't like? And does it always work? THE VERDICT: HERE'S WHY: As you can probably guess, Jim Carrey's character (from the 1996 movie Liar Liar) won't be allowed to make an objection like that in a real courtroom. While lawyers are allowed to shout ""Objection!"" (or ""BANTAHAN!"" in Malay proceedings, and preferably in the most respectable manner possible), there are rules dictating how and when it can be used. According to lawyer Fahri Azzat, one needs a basis (reason) on which to object. In practice, objections are usually raised in two situations, namely: i) Against questions asked to witnesses - If they were unfair, inadmissible, or the witness wouldn't know the answer ii) Against evidence tendered (presented) to court, if it was inadmissible for any reason. Lawyers have to rise to their feet to object, and in the first category, usually only object after a question is completed. This is so the court can appreciate it's objectionable quality - basically deciding whether it can be objected to or not (which would be hard if the question was incomplete). ""Occasionally, we also object if the early part of the question reveals its objectionable quality. For example, I objected when someone started a question with 'In your opinion...' Why? Because a witness' opinion is irrelevant. He is only to testify about what he saw, heard, felt, smelled, and touched. Only an expert can share his opinion in court. You should object at the earliest reasonable moment. You also should not object after a question is answered. That's too late already. You can't put back a fired bullet."" - lawyer Fahri Azzat, in an interview with AskLegal. There are no formal rules or legislation dictating how 'OBJECTION!"" can be used, although some practicing firms have a manual of sorts guiding how it can be used. There are many, many many kinds of legal objections, which include: Asked and Answered - This is if a question being brought up has already been asked and answered. Assuming Facts not in Evidence - This happens when the questioner brings up something the witness has not testified about. Badgering the Witness - When the lawyer is not being civil with the witness. If the questioner is asking questions in a hostile manner, or harassing the witness, they are likely badgering the witness. Leading the witness - This occurs when the questioner suggests answers during the direct questioning of a witness. During cross examination, this objection does not apply. Misstating the Law - A lawyer is stating the law incorrectly. Note that this list is not exhaustive, and some of the categories can overlap. A longer list of objections can be found here and, while they have been written for American courts, most of them are also relevant in Malaysia. Looking forward to the Phoenix Wright memes in the comments. Note: This answer is based on the legal perspective rather than individual cases. If you come across any rumors or have any questions about how the law works, let us know on our Facebook page or click here to send an email."
"5 common sales tactics used in Malaysia that are actually illegal Way too many scammers have been using underhanded methods to cheat consumers, one of the most famous being “private message me for price”. A lot of honest sellers use it but unfortunately, it’s also a scammer’s tactic. Recently, the Domestic Trade, Cooperatives and Consumerism Ministry has announced it will be cracking down on online sellers who break consumer protection laws. “We are fully enforcing this law after having relaxed on this to allow traders to adjust accordingly,” - the ministry’s enforcement director, Datuk Mohd Roslan Mahayudin as quoted by New Straits Times. Not just the scammers are involved, some legit businesses use false promises to get your personal information or force a sale. One such business is LuxStyle which required users to register their address and e-mail to find out the product prices. LuxStyle would then send over goods to their victims and demand payment or that the goods be sent back on their victims’ expense. Users around the the world have been caught in their underhanded tactics, including Malaysians. The National Consumer Complaint Centre has issued a notice advising victims to not open or use the goods and ignore all demands for payment from LuxStyle. Image from richstokoe All these dodgy practices might beg the question: What rights do consumers have against dishonest businesses? We’ve listed 5 common (although exaggerated) sales tactics that you would have come across before and what rights you have against them. 1. “Want to buy? PM me for price bro” Here’s a likely story, you see a post on Facebook saying “Unused bicycle for sale. PM for price”; there is no attached picture of the bike. You privately message the poster to find that the bicycle costs way more than the market price, and the bicycle is actually battered! [READ MORE: What can you do if you bought fake food in Malaysia?] This is but one of the unethical practices some online sellers use that are unfair to consumers or outright cheat them of their money. In response, the Domestic Trade, Cooperatives and Consumerism Ministry issued the Consumer Protection (Electronic Trade Transactions) Regulations 2012, which require online businesses to disclose the following 8 pieces of information to all customers. a) The name of the seller (whether a person, business, or company name) b) The business or company registration number (if any) c) The contact details of the seller or business (e-mail, telephone number, address) d) Descriptions of the main characteristics of the goods or services provided e) The full price of the goods or services, including transportation costs, taxes, etcetera f) The methods of payment accepted g) Any terms and conditions attached h) The estimated delivery time The Ministry actually put these laws into force from 1 July 2013, after letting traders adjust for the longest time, they are now cracking down on offenders. Take note when you are selling off old or unused goods on social media and sites like Mudah.my, these will not apply to you as you are not operating an online business – but it doesn’t hurt to be transparent with your potential buyers. 2. Quality assured!!! Satisfaction guaranteed!!!!! 2 million users can’t be wrong!!!!!!!!11 Image from onecateringmalaysia Despite these labels, we’ve all experienced the occasional product that didn’t work, or the lousy service provided by a “professional”. Well, Section 32 of the Consumer Protection Act 1999 makes it an implied promise in all agreements where goods are supplied that the goods will be of “acceptable quality” according to the price and the type of goods. This means that when you buy a RM3000 phone, you expect much better quality and features compared to a RM800 phone. However, both phones must perform their basic functions: being able to call and SMS. What does “acceptable quality” mean though? The law explains in Section 32(2): “For the purposes of subsection (1), goods shall be deemed to be of acceptable quality— (a) if they are— (i) fit for all the purposes for which goods of the type in question are commonly supplied; (ii) acceptable in appearance and finish; (iii) free from minor defects; (iv) safe; and (v) durable;...” Services are no exception, and they are covered under Section 53 of the same Act. It requires service to be supplied with “reasonable care and skill”. This basically translates to the standard of skill and care practiced by the majority of others in the same profession. Doctors must live up to the standard of other doctors, and lawyers must live up to the standard of other lawyers. 3. Promotes well-being and improves your midichlorian count Image from lowyat.net Chances are that you’ve seen advertisements on the internet and on a sidewalk in town for “ubat kuat lelaki - 100% efektif”, or even the more exclusive “quantum” items that claim to heal anything from backaches to cancer and even clean your blood. Section 10 of the Consumer Protection Act 1999 makes it illegal to make false claims about goods or services. These claims include the brand, model, endorsements...The list is really long so do check the actual Act if you want to know the full scope of the law. Generally, if any feature claimed by the vendor is actually not true, it will be an offence under this law. We’ll have run into some of these statements at one point or another: imported from Country P, approved by X Ministry (pyramid schemes LOVE this one), 20% return on investment per month, and so on. 4. Limited edition! While stocks last!! Limited time only!!! Every now and then you come across an advert that claims their goods are “limited edition” and you should get it “while stocks last”. But some businesses try to be sneaky and say “for a limited time only” without saying until when! For example, if you look at Ikea ads, they state their promotional period clearly. Original image screencapped from Ikea Section 15(1) of the Consumer Protection Act 1999 provides that no business can claim that something is “limited” unless there is a pre-determined maximum quantity that is made, or there is a limited time for which the goods are available. Section 15(2) further requires that businesses state clearly (where applicable): a) The maximum quantity of goods that will be available b) The specific time frame for which the goods will be available. It is a crime to hide this information in Malaysia and Section 25 provides that if found guilty, companies will be fined up to RM250,000 (RM500,000 for repeat offences), and individuals will be fined up to RM100,000 or 3 years of prison or both (RM250,000 and up to 6 years for repeat offences). 5. RM9.99 only! *COUGHsubjectto6%GSTand10%servicechargeCOUGH* Image from GSTMalaysia After Malaysia implemented the Goods and Services Tax Act 2014, it has been confusing where some places have incorporated the Goods and Services Tax (GST) into their prices, but some places have their prices subject to GST and Service Charges. This misled many consumers, and some places also display prices without telling consumers that the prices are subject to GST. The Price Control and Anti-Profiteering (Amendment) Act 2017 was passed recently, which has yet take effect for the time being. The Section 10B added in the amendment requires any person who shows the prices of any goods or services to include all government taxes, duties, and charges as well as any other charges such as delivery and service charges in the quoted price. This means no more notices of “subject to 6% GST and 10% service charge” will be tolerated. The listed price you see is the price you pay, no surprises. The law has yet to come into force at the time of writing (9 August 2017). The government will publish the changes in the Amending Act section of the Federal Gazette when it does start take effect. Who can I make complaints to? It seems that Malaysians’ biggest complaint when it comes to the legal protections we actually have is that enforcement tends to be weak. When it comes to consumer protections though, you have 2 places you can go to for a remedy. The National Consumer Complaint Centre If you have disputed charges and the company is refusing to budge, these are the people to go to. Their e-complaint form can be found here. You should first try to resolve the situation with the company in a civilized manner before escalating the issue, the NCCC has written some guidelines here on how to contact the company you have a dispute with. The Domestic Trade, Cooperatives and Consumerism Ministry This is where you can file reports against companies who break the laws in the Consumer Protection Act. This includes matters like misleading advertisements, fake halal certification, dangerous and defective items, price predation, and many more. Here’s their complaint form. Also, did you know that your gym is not allowed to deny you a refund if you want to cancel your membership? It is illegal to do so in Malaysian law; law firm Donovan & Ho has written an article about it if you want to learn more."
"What happens when you get caught in an illegal massage parlour? Klik sini untuk versi Bahasa Malaysia. Malaysians are fans of massages, from the popular establishments we see in shopping centres to the smaller shops dotting the Bukit Bintang area. The question is what happens when you are caught in illegal massage parlours? There are two kinds of illegal massage parlours: 1. Where the massage parlour lacks proper licencing to carry out such a business 2. Where the massage parlour offers services which are against the law In the first scenario, you are likely to not be arrested as it is a licencing issue between the parlour and the authorities but you may get your massage interrupted. So, this article would focus on parlours that offer services which are against the law. What are considered illegal services? Image from businessinsider.com Three of the most common situations that someone can face when caught at a dodgy massage parlour are prostitution, drugs and same-sex services. For prostitution, you can be jailed for up to one year or get slapped with a fine if you were found to be soliciting such services. Section 372B Penal Code - Soliciting for purpose of prostitution Whoever solicits or importunes for the purpose of prostitution or any immoral purpose in any place shall be punished with imprisonment for a term not exceeding one year or with fine or with both. [READ MORE: Is prostitution illegal in Malaysia? You might be blown by the answer] As for drugs, it gets a little tricky as depending on what you were doing with the drugs, how much you have on you and many other factors, you can either be guilty of trafficking, possession, or self-administration under the Dangerous Drugs Act 1952. [READ MORE: 5 more things you need to know about Malaysia's drug laws] If you are wondering what if you are caught visiting a spa that offers same-sex services, then section 377A of the Penal Code applies and you can be jailed for up to 20 years: Any person who has sexual connection with another person by the introduction of the penis into the anus or the mouth of the other person is said to commit carnal intercourse against nature. What happens when you get caught? Image from theiskandarian.com Upon getting arrested, you would most likely be brought down to the police station for questioning or further investigation. You can only be detained for 24 hours and during that time, you are entitled to call your friends, family or a lawyer. If you have requested for a lawyer, the police must also allow reasonable time for you to meet with your lawyer and consult with him. This is provided in section 28A(2) and section 28A(4) of the Criminal Procedure Code (""CPC""): Section 28A(2) CPC: (2) A police officer shall, before commencing any form of questioning or recording of any statement from the person arrested, inform the person that he may— (a) communicate or attempt to communicate, with a relative or friend to inform of his whereabouts; and (b) communicate or attempt to communicate and consult with a legal practitioner of his choice. Section 28A(4) CPC: (4) Where the person arrested has requested for a legal practitioner to be consulted, the police officer shall allow a reasonable time— (a) for the legal practitioner to be present to meet the person arrested at his place of detention; and (b) for the consultation to take place. If the police are unable to complete their investigation within 24 hours, then you can be detained for a longer period if a magistrate authorises an extension (also known as remand). This is found in section 117(1) CPC and there are guidelines for how long you can be remanded but that is a discussion for another time. So after all the above happens, depending on the evidence, the police would either proceed to formally charge you with a crime or let you go. What if I was there for a genuine massage? If you were at an illegal parlour with the intention to grab a genuine massage or maybe you had no idea that ""additional happy time services"" were being offered by your favourite parlour, you can still be caught during a police raid. Yup, this means that the police do not need to catch you in the midst of committing a crime or even preparing to commit a crime in a massage parlour. All you have to do is be there. The reason for this is that while we are all familiar with the phrase ""innocent until proven guilty"", the police can arrest you based on reasonable suspicion alone. You are still innocent even after an arrest and it is only during the court proceedings, after police investigations, that the ""innocent until proven guilty"" standard steps in. AskLegal spoke to a human rights and criminal lawyer who told us that... ""For an arrest to take place, the requirement is reasonable suspicion. Conventionally, what seems to take place, during a raid, if you are found in an illegal massage parlour that engages unlawful activities where you are found with suspicious articles or in circumstances that seemingly shows that you have engaged yourself in hiring such unlawful services, the police then may claim that they have a reasonable suspicion to arrest you"" - Dinesh Muthal, in an interview with AskLegal The use of reasonable suspicion to precede an arrest (also known as an arrest without a warrant) is usually used for a 'seizable offence'. A seizable offence is defined in the First Schedule of the CPC and as you guessed it, all the offences mentioned above are seizable offences. As such, section 23(1)(a) CPC empowers the police to make such arrests without a warrant: Any police officer or penghulu may without an order from a Magistrate and without a warrant arrest - (a) any person who has been concerned in any offence committed anywhere in Malaysia which is a seizable offence under any law in force in part of Malaysia in which it has been committed or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists or his having been so concerned... So even if you went into an illegal spa with the purest of pure intentions, if a raid happens, chances are you would enjoy a little road trip to your neighbourhood police station due to the police's suspicions based on the location you were in. What can I do to avoid getting caught? It is best to visit massage parlours which can be found in popular malls as those would typically be free of licencing issues and the offering of illegal services. Another way to avoid getting in the middle of a police raid to look out for licences displayed in the parlour's windows or counter. You can still continue to take your chances at dodgier looking places if they are your favourites because as shown above, getting arrested does not mean that you are automatically guilty. The question to ask is whether the hassle of getting arrested is worth that massage. [READ MORE: If you get arrested by PDRM, does it mean that you are guilty?]"
"3 ways you can get in LEGAL trouble for insulting Malaysian politicians Given the rise of social media, it has now become easy to share thoughts or dissatisfaction about anyone. This includes ragging on our politicians. However, what you or most people would argue as freedom of expression can actually lead to you getting sued. There are several ways that a lawsuit can be brought against you based off your words or Facebook posts, and here is how you might find yourself in a legal battle against members of the government or the government itself. Now you might have come across a viral video that has been circulating on social media lately, where a female lawyer was expressing her freedom of speech at a gathering in Dataran Merdeka—over the recent turn of political events. She is now being investigated under the Sedition Act and the Communications and Multimedia Act (covered later in this article) for demonstrating against the change of government. Now, telling off politicians might not be the same as telling off your friends and families, as politicians hold public office and they are supposed to be open to criticism. So with the recent u-turn of events in Malaysian politics, the question is: How can you get sued when politicians are, in a way, supposed to be criticised? 1. Defamation Act and Penal Code What exactly is defamation? The common idea shared by many is that defamation is an action you bring against another person for spreading rumours about you that caused your reputation to suffer. This is true but getting into the nitty gritty parts, defamation is actually divided into two different kinds of defamation and it can either be a civil or criminal action. First off, defamation can consist of either slander or libel. Slander is when the defamatory sentence is made through words or gestures (i.e they are temporary in nature). Libel, on the other hand, is when the defamation is made through permanent means such as through a Facebook post. Now that the two kinds of defamation has been clarified, you are probably wondering why it can either be a civil or criminal action when the people usually get in trouble for only one of them. The reason for this is that there are two separate pieces of legislation governing the law on defamation. The first is found in the Defamation Act 1957 (""DA 1957"") and the other is actually found in the Penal Code. Section 499 Penal Code: Whoever, by words either spoken or intended to be read or by signs, or visible representations, makes or publishes any imputation, concerning any person, intending to harm, or knowing, or having reason to believe that such imputation will harm the reputation and shall also be liable to fine of such person, is said...to defame that person. The Penal Code basically states, that when a person says or makes any statement which will potentially be harmful to another person’s reputation—the person making the statement is said to have defamed the person he’s talking about. Defamation also has certain conditions to be fulfilled. In a nutshell, what is essentially needed is a defamatory statement (or gesture) which refers to the politician and it must be made to a third party other than the politician him/herself. If you think that you would be able to scoot from being caught by defamation laws by not naming and shaming specific politicians, you can still be caught as long as the politician is identifiable. For example, if your statement sounds something like, ""That MP from constituency Y likes to sleep with pretty, young girls"", then you might be in trouble because there is only one MP from constituency Y. You may also be caught if you are found to be making an innuendo. An innuendo is basically when you make a statement that hints to something else. For example, if you say something along the lines of, ""Have you noticed that the MP from constituency Y is always surrounded by pretty, young girls?"", an average person would be able to infer that he is a person of loose morals. An example of how a defamation action works can be seen in Prime Minister Najib's defamation action against Tony Pua for uploading a video on Facebook regarding RUU 355. Najib's action is based on the claim that the video was directed at him and was done with the intention to defame him. This current action is still pending but a defamation action by Anwar Ibrahim against Utusan Melayu has resulted in Utusan having to paying Anwar RM200,000. Fun fact: Did you know that our Prime Minister is not a member of the public service and cannot be sued for misfeasance in public office? Also you might be interested to learn that politicians can either be members of the public service or members or the administration. [READ MORE: Mahathir cannot sue PM Najib because PM Najib is not in public service] 2. Communications and Multimedia Act 1998 The Malaysian Communications and Multimedia Commission (""MCMC"") is empowered by the Communications and Multimedia Act 1998 (""CMA 1998""). The MCMC has wide powers to act against you if you were to post up any obscene or offensive statements online—including instant messages. For instance, if you were to own a blog which you used to critic certain politicians, it might be construed as an improper use of the blog and you would be committing an offence under section 233 of the CMA where, among other factors, posting up offensive content with the intention to harass a politician could cause you to end up in jail for up to a year and/or pay a fine of RM50,000. Therefore, the requirements needed to be guilty under section 233 appears to stand at a low threshold—there only needs to be proof that you created and transmitted any form of communication which is considered to be offensive and done with malicious intent. Section 233 CMA 1998 - Improper use of network facilities or network service, etc. 233. (1) A person who— (a) by means of any network facilities or network service or applications service knowingly— (i) makes, creates or solicits; and (ii) initiates the transmission of, any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or (b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address, commits an offence. An example is the Malaysian Insider, whose site was blocked by the MCMC for publishing defamatory content. This was done using section 263 which allows the MCMC to enforce the CMA, including taking measures to shut down your site: (2) A licensee shall, upon written request by the Commission or any other authority, assist the Commission or other authority as far as reasonably necessary in preventing the commission or attempted commission of an offence under any written law of Malaysia or otherwise in enforcing the laws of Malaysia, including, but not limited to, the protection of the public revenue and preservation of national security. 3. Sedition Act 1948 Section 2 of the Sedition Act 1948 (""SA 1948"") defines ""seditious"" as a thing that has ""seditious tendency"". For the purposes of this article, we will zoom into certain parts of section 3 which provides that tendencies which cause hatred or dissatisfaction against the Yang di-Pertuan Agong or the government amount to sedition. Section 3(1) SA 1948 (in part): A “seditious tendency” is a tendency— (a) to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government... Section 3(1) seems pretty open-ended but this is contained by section 3(2) that provides that statements or actions cannot be deemed to be seditious only because they were criticising the government IF you made the statements with the view of rectifying those errors. This basically means that if you say, ""The MP from constituency Y needs to buck up because the potholes in front of my house never get fixed"", it would not be seditious. However, if you embellish it by saying, ""The pothole in front of my house never gets repaired because the MP from constituency Y is too busy lining his pockets with bribes"", then you might be in hot soup. The first statement is not seditious because it was made with the intention to rectify a problem. On the other hand, the second statement is seditious because it carries the tendency to create dissatisfaction. Section 3(2) provides that: Notwithstanding anything in subsection (1) an act, speech, words, publication or other thing shall not be deemed to be seditious by reason only that it has a tendency—(b) to point out errors or defects in any Government or constitution as by law established...or in legislation or in the administration of justice with a view to the remedying of the errors or defects... A popular case involving sedition would the case (or cases) against Zunar, a local political cartoonist who had nine sedition charges against him in 2016 and was arrested over cartoons allegedly insulting Malaysia's former prime minister, Najib Razak. What about your freedom of speech? Even though not all of the examples above result in a guilty verdict, it is always wise to ensure that any criticisms you level towards politicians do not enter the sphere of personal attacks or hearsay. After all, freedom of speech is guaranteed by our Federal Constitution but it is not an absolute right and does not translate to the freedom to lambaste others and expect to walk away without repercussions. If you think that you can get away with any of the above offences by sharing someone else's angry post about politicians, you might want to think twice because even sharing can get you sued. [READ MORE: You might want to pause before shaming someone online]"
"5 loopholes that Malaysian domestic violence victims no longer have to worry about There were 4,000 cases reported from January to October 2016 and, in response to growing awareness on issues related to domestic violence, Malaysia passed the Domestic Violence (Amendment) Bill 2017 (""DVB"") last week to further strengthen the existing Domestic Violence Act 1994 (""DVA"") because the existing Act does not properly address certain issues that victims face.(but these amendments are not in effect yet). Of course, do note that domestic violence does not just involve wives, it involves all and any kind of familial relationships. For instance, in 2015, 26% of the cases reported involved males as victims, 1% of which were husbands.Here are five things that have been improved in Malaysia's domestic violence law and please note that we are using the word abuser for simplification. They are still considered suspects until the courts find them guilty. 1. Improved protection for victimsImage from youtube.com Current problem: The authorities have trouble figuring out when protection begins and ends for victims. The current DVA 1994 has two kinds of orders, the interim protection order (""IPO"") and the protection order (""PO""). Both the IPO and PO are meant to restrain the abuser from using domestic violence against the victim. Theoretically, the IPO is used when there is a pending police investigation and the PO is used when the investigations become an ongoing criminal court proceeding. Basically, the IPO provides temporary protection until further action can be taken. However, in practice, victims can be left without protection as there is no clear specification as to when an IPO ends and when a PO begins.Generally, there is no problem with commencing a protection order but now the orders are given more bite by allowing for the courts to provide orders in the IPO which would prevent the abuser from coming close to you. For example, the court can make an order preventing the abuser from contacting you or staying at least fifty metres away from you.Where the law is strengthened is in properly defining when the IPO comes to an end:(i) The protected person (victim) is informed by the police that the investigation has been completed and no actions will be taken against the abuser(ii) When court proceedings have begun and the victim did not apply for a PO within the seven days' grace period - which starts after the police informs the victim that court proceedings would begin(iii) When court proceedings have begun and the victim applies for a PO within the seven days' grace period - which starts after the police informs the victim that court proceedings would beginOn the other hand, you can apply for a PO within seven days of being notified by the police that criminal court proceedings would begin or at any time during the court proceedings.Hence despite the lack of stalking laws in Malaysia, the revamped IPO and PO can act as de facto stalking injuctions for cases involving domestic violence. Section 4(b) Domestic Violence Bill 2017 (in part):“(4) An interim protection order shall cease to have effect-(a) upon the protected person being informed in writing by a police officer about the completion of the investigations and that there is no further action to be taken against the person against whom the order is made... 2. Speedier protection for victimsImage from asklegal.my [READ MORE: Can the Malaysian police enter your house without a warrant?] Current problem: High risk victims may not get protection in time.The DVB 2017 introduces a new order known as the emergency protection order (""EPO""). The main difference here is that instead of going through the lengthy process of making a police report in order to get an IPO, you can now approach a social welfare worker to get an EPO.The EPO appears to act as a temporary safeguard to ensure your safety during your application for an IPO and is usually issued within two hours and is valid for seven days. It will protect you against physical abuses, fear of such abuses and can also prevent the abuser from entering your safe place or any shared residence. During the seven day period, you would then be able to head over to a police station in order to apply for an IPO. If the abuser goes against this EPO (with or without using violence), he or she can face a jail sentence of up to two years and/or fine of up to RM5,000. This is reflected in section 3 DVB 2017:3E. (1) Any person who willfully contravenes an emergency protection order or any provision of the order shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding six months or to both.(2) Any person who willfully contravenes an emergency protection order by using violence on a protected person shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding four thousand ringgit or to imprisonment for a term not exceeding one year or to both.(3) Any person who is convicted for a second or subsequent violation of an emergency protection order under subsection (2) shall be punished with imprisonment for a period of not less than seventy-two hours and not more than two years, and shall also be liable to a fine not exceeding five thousand ringgit. 3. More things are now considered domestic violenceImage from hopeandgracecommunity.comCurrent problem: The definition of domestic violence is not wide enough.After its 2012 amendments, the definition of domestic violence consisted of acts which cause physical injuries, sexual abuses, emotional and psychological abuses and intimidation/harassment/stalking that may cause harm to a person. Through section 2 of the DVB 2017, domestic violence now includes acts which cause you to suffer financial loss, fear for your safety, property or a third person or causing you distress. It also includes any communicative acts with an intention to insult your modesty. This means that it does not matter if the insult was given verbally or through a Facebook post, it is still considered domestic violence.In essence, the law has been broadened to include criminal intimidation and misappropriation of property.4. Separate counselling sessions for you and your abuserCurrent problem: You can be forced to undergo counselling sessions with your abuserUnder the current law, instead of or in addition to issuing a PO, the courts can refer the parties (the victim and the abuser) to counselling sessions. This effectively puts you at risk of psychological and emotional abuse as you would be in close proximity with a person you fear. Therefore, under the new amendments, the courts can no longer order both parties to attend counselling sessions. Instead, the courts can order the abuser to complete a rehabilitation session and you, as a victim, can only be ordered to attend rehabilitation if you consent to it. Section 8 DVB 2017: The court may, in an application in which a protection order is sought, in addition to issuing a protection order, make an order that one or more of the parties to the dispute be referred to a rehabilitation programme, provided that an order to refer the victim to a rehabilitation programme shall be made only with the consent of the victim...5. You no longer have to share your house with your abuserImage from pinterest.comCurrent problem: You have to share your house with your abuser during court proceedingsUnder the current DVA 1994, section 6(4) provides that the courts cannot force the abuser to move out of the house that you both currently live in unless there is no other way to ensure your safety. Hence, this means that the courts can only order the suspected abuser to stay away from certain parts of the house but indubitably, this creates a tense atmosphere at home.The new law puts an end to this by stating that if the courts allow you to continue living in the house, they have to grant you exclusive occupation over the whole property as opposed to certain parts of the house. Coupling this with the various kinds of protection orders mentioned above, the law ensures that any abuse victims would be able to carve out a safe haven for themselves or seek help from family and friends without worrying that their abuser would harass them. If you are a victim, here are some helpful numbersOnce again, please be reminded that the new law is not in effect yet but it would be implemented soon. However, help is still available now. To get further information or to seek help, you can always call the Talian Kasih hotline at 15999 or contact the Women's Aid Organisation (""WAO"") at 03 7956 3488/ 018 988 8058 (Whatsapp/SMS).For cases of emergencies, WAO recommends calling the 999 hotline."
"In Malaysia, shaming someone on social media could land you in jail You’re out for lunch. You’ve just finished your usual meal and are walking to your car. Then you see this. Image from ohmymedia The double parker didn’t leave a phone number, and doesn’t rush over to your honking. About 15 minutes later, they stroll over casually. You’re angry and confront them, but they have the cheek to tell you off: “What’s your problem? Cannot wait ah?” Furious, you quickly take a picture of the nasty double parker and their car before driving off. Time to post on social media and let the world know about this (insert swear words here) person! Or should you? Many of us take to social media to complain about nasty bosses, unreasonable boyfriends and girlfriends, the annoying double parkers, and everything else. But this keyboard warrior-ing could get you into big trouble with the law, especially if you don’t know what can and cannot be said. [READ MORE] : 3 ways to get arrested for insulting a politician That’s exactly what happened to 3 posters on the MMU confessions Facebook page, who got reported to the police and are now being investigated under Section 499 of the Penal Code for defamation. So, what is defamation and when are published posts considered defamation? You can be sued for defamation Image from geekwire Simply speaking, defamation is a statement made to damage another person’s reputation. The victim can sue their defamers for compensation. How do you prove that someone is defamed? According to the case of Ayob Saub v TS Sambanthamurthi [1989], there are 3 elements that must be proven: 1) There is defamatory material (it lowers someone’s reputation in the eyes of the public) 2) The content of the material is about them or identifies them (whether it’s words, a photo, a song, etc.) 3) The material was published to people other than that person Implied meanings or “innuendos” will also be considered defamatory. For example, if you say “Jerry goes to massage parlour X a lot” and it is known that the parlour provides “happy endings”, your statement can be considered defamation. Even if you don’t say it directly, it’s easy for people to conclude that Jerry has a rather “interesting hobby”. No, it doesn’t matter whether you use their name or not... A misconception a lot of people have is that it’s not defamation if the person is not named. This is somewhat true, but if there is enough information that they can be identified, it will still count. Examples would include: 1) “That tall, handsome editor from AskLegal” - There’s only one editor at AskLegal 2) “The male noodle seller from Shop X who shouts at people” - You specify the person enough that a visitor immediately knows who they are As long as some people can figure out who that person is, it’s defamatory. So, what can I even say? Remember the guidelines for online group admins that the Malaysian Communications and Multimedia Commission (MCMC) published back in May? The guidelines have no force of law alone, but they were designed to help us follow the law. Image from MCMA's Facebook page You can say a lot, just subject to some rules. Just this weekend (5 August 2017) there was a bizarre road bullying case where the victim took to the lowyat.net forums, reporting the facts of what happened - his post is fully legal (so follow his example). Generally, these are examples of things you can and cannot say: Things you can say: 1) Established truth (if a person is a convicted criminal, you can call them a criminal) 2) Your fair and honest comment (no bad intentions) 3) Complaint to a higher authority (such as making a police report, or reporting a kid to their parents) 4) Protecting someone’s interest (eg. telling your staff to cut off client X because they never pay on time) Things you cannot say: 1) Rumours and lies 2) Speculation about a person (eg. “she dresses so well; must be some rich spoilt brat”) 3) Attacks on a person’s character On top of that, you’re also breaking 2 laws Normally, defamation is a civil case (a lawsuit) where the victim sues you for compensation for damage to their reputation. But because of some federal laws you are breaking, the government can also choose to come after you. The First Law - The Penal Code Section 499 of the Penal Code makes it a crime to defame another person: “Whoever, by words either spoken or intended to be read or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm the reputation and shall also be liable to fine of such person, is said, except in the cases hereinafter excepted, to defame that person.” There are 10 exceptions complete with real-life examples in Section 499 of the Penal Code. The penalty for defamation? It’s ruled by Section 500 to be up to 2 years in prison, a fine, or both. Note that the fine amount is not stated; this means that it is theoretically unlimited. While that’s penalty for criminal defamation, there’s also compensation to be paid if you get sued for defamation. Each case of defamation is unique to its facts and generally, the more serious the defamation and the more high-profile the person involved, the higher the compensation will be. For example, tycoon Tan Sri Vincent Tan was awarded RM7 million against journalists in one case as a high-profile business owner who would suffer major loss if his reputation was wrongly stained. The Second Law - The Communications & Multimedia Act 1998 Other than the Penal Code, Section 233 of the Communications & Multimedia Act 1998 makes it an offence to use a network service or app for improper purposes. Communications & Multimedia Act 1998 - Section 233 in part (1) A person who— (a) by means of any network facilities or network service or applications service knowingly— (i) makes, creates or solicits; and (ii) initiates the transmission of, any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; …… commits an offence. Yes, this includes posting defamatory remarks on social media. The penalty for such an offence is a fine up to RM50,000, 1 year of jail, or both. You can also get in trouble for sharing a defamatory post GIF from KnowYourMeme This is where things get rough for keyboard warriors. Every single repost or share of a defamatory statement is an extra publication, and so every single person involved can be named in the lawsuit by the victim, and prosecuted by the government as well. Yes, 700 shares means 700 people can get sued. This applies whether you are a group admin or a normal user. This rule was established back in 1829 in the case of M’Pherson v Daniels. Any person republishing a defamatory statement is also responsible to make sure that such a statement is true and fair, and will so be liable for defamation as well. They cannot say that they are just reposting what someone else has said or they are not responsible for what the original poster said. This is because they chose to share the defamatory statement. With great power, you still shouldn’t defame others The Freedom of Speech guaranteed by Article 10 of the Federal Constitution is not absolute, and certainly doesn’t extend to the right to spread lies about others. The Golden Rule is very apt here: do unto others as you would to yourself. While telling others to watch out for a conman can be seen as looking out for others, it's different if we spread lies about the conman, even if he’s not a nice person. The other way to see it is that two wrongs don’t make a right. Before posting about people you find nasty on social media, think of the consequences and refrain from adding insults to your facts. Use social media responsibly people!"
"Jika kereta anda mengalami kerosakan atau dicuri di parkir valet… Siapa bayar? [Artikel asal ditulis dalam Bahasa Inggeris. Click here for English version]Pernahkah anda terfikir: Semasa meletakkan kereta anda di parkir valet, anda menyerahkan kunci kepada orang yang anda tidak kenali langsung di mana ia akan menyerah kembali kunci tersebut kepada sesiapa yang mempunyai tiket parkir (biasanya kita) dan bayar tanpa mengetahui identiti ‘pemilik’ kereta itu. Bagaimana sekiranya kereta anda dirosakkan oleh seseorang yang tidak anda ketahui? Atau kereta anda dicuri oleh orang lain yang menjumpai tiket parkir anda? Pasti anda mahu mengetahuinya lebih lanjut, bukan? Jika ya, ini menunjukkan anda merupakan seseorang yang tidak mengambil remeh tentang hal ini. Kereta anda kemungkinan boleh dirosakkan oleh orang yang tidak bertanggungjawab atau lebih teruk, dicuri. Kereta mewah Mercedes kepunyaan seorang ahli perniagaan telah dicuri di parkir valet di sebuah mall; rakaman CCTV menunjukkan si pencuri bercakap-cakap dengan operator valet, mengambil kunci yang diserahkan, dan memandu pergi dengan begitu sahaja. Kereta mewah idaman..Jadi langkah selanjutnya..? Imej dari carsifu.my Jadi, siapa yang bertanggungjawab? Bergantung kepada keadaan, anda boleh menuntut pampasan daripada 4 pihak ini:1. Valet yang memandu kereta anda2. Syarikat valet itu3. Operator bangunan; atau4. Pihak ketiga yang merosakkan/mencuri kereta anda AskLegal menemuramah seorang peguam korporat untuk mengulas lebih lanjut mengenai perkara ini. Memandangkan operator bangunan tidak selalunya terlibat (melainkan jika kereta dihempap bumbung bangunan!), dan pihak ketiga biasanya telah melarikan diri (Tetapi masih boleh dipertanggungjawabkan bergantung kepada fakta kes), dua pihak ini tidak termasuk dalam perbincangan artikel. Adalah lebih baik jika anda berunding dengan peguam terlebih dahulu! Syarikat valet itu bertanggungjawab jika operator valet cuai Imej dari shaditayari. Misal kata operator valet itu hilang kawalan semasa memandu kereta anda dan melanggar pokok. Sudah pasti anda berasa marah dan kemungkinan operator tersebut tidak mampu membayar gantirugi, tapi ini tidak mengubah kenyataan di mana seseorang itu telah merosakkan kereta anda! Anda harus ke mana dalam situasi seperti ini? Inilah liabiliti gantian (vicarious liability) – suatu syarikat/majikan itu bertanggungjawab ke atas kakitangan-kakitangannya. Mungkin ada yang tertanya-tanya: kenapa orang lain yang harus menanggung beban kesalahan yang dilakukan oleh operator valet? Rasionalnya seperti dalam kes I.C.I v Shatwell [1965] AC (685), yang menyebut: “Majikan yang (kemungkinan untuk manfaat sendiri) menggaji pekerjanya, dan (kemungkinan) mampu untuk memperbaiki kesalahan/kerosakan yang terjadi di mana datang dari pekerjanya bagi kesemua jenis tort yang dilakukan“ Dengan kata lain, syarikat-syarikat yang menggaji pekerja-pekerjanya untuk bekerja (memberi keuntungan) dengannya, dan yang mempunyai modal yang lebih besar, mampu untuk ‘menuntut bela’ ke atas kerugian/kesalahan yang dilakukan oleh kakitangannya. Jadi, mereka harus betanggungjawab juga. Mungkin ada yang bertanya, kenapa harus sampai dibawa ke mahkamah? Memang hilang No Claim Discount, tetapi bukankah lebih mudah jika menuntut pampasan daripada syarikat insurans? Insurans kereta biasa tidak melindungi kerosakan atau kecurian melalui perkhidmatan valet Ini bergantung kepada polisi insurans anda tetapi biasanya anda tidak dapat menuntut pampasan dari syarikat insurans tersebut oleh sebab anda menyerahkan kunci kepada pihak ketiga atas kehendak sendiri. Syarikat-syarikat valet pastinya tidak mahu mangambil risiko terlibat dalam kejadian seumpama itu. Jadinya, perlindungan ke atas kereta anda belum tentu terjamin. Imej dari Safety Supply Warehouse. Kebanyakan syarikat valet ini menggunakan klausa pengecualian untuk tidak terbabit dalam masalah. Sebab itu kita sering melihat papan tanda yang bertulis “park at your own risk, the management will not be liable for any loss or damage caused” di tempat letak kereta. Menurut seorang peguam ketika ditemui, menerangkan bahawa: ""Seberapa besar tanggungjawab itu bergantung kepada seberapa besar klausa pengecualian yang dirangkumi. Ini tegas ditafsirkan dan bila disesuaikan dengan peraturan 'contra-profarentum' - iaitu klausa yang tidak jelas diterangkan akan diintepretasikan sebaliknya terhadap suatu majikan/syarikat yang mengeluarkan klausa itu."" - Peguam Korporat, ketika ditemuramah oleh ASKLEGALPeraturan contra-profarentum melindungi pengguna dari syarikat yang cuba untuk menyisihkan liabiliti terhadap banyak hal, dan syarikat berkenaan akan dipertanggungjawabkan dalam kesemua perkara yang tidak terangkum. Ambil contoh pernyataan, ""pihak pengurusan tidak akan bertanggungjawab ke atas kerugian/kerosakan terhadap kereta anda"". Ini tidak merangkumi kenderaan lain seperti motosikal. Bagaimana jika kerosakan itu berlaku akibat banjir atau dicuri misalnya? Melalui peraturan contra-profarentum, pihak pengurusan akan dipertanggungjawabkan jika berlaku hal-hal sedemikian. Suatu kontrak telah termeterai dengan syarikat valet sekiranya anda menggunakan perkhidmatan valet. Tersiratnya, mereka akan berusaha sewajarnya memastikan kereta anda selamat ketika berada di bawah pengawasan mereka. Jika anda sesuaikan dengan peraturan contra-profarentum, syarikat valet itulah yang bertanggungjawab melainkan jika syarikat itu dengan jelas menyatakan bahawa mereka tidak bertanggungjawab ke atas kesalahan yang dilakukan oleh kakitangan mereka. Cara-cara menghadapi 3 senario biasa kerosakan kereta Imej dari Consumer Recovery Network. Melalui tuntutan mahkamah. Siapa dan untuk apa anda saman. Menurut peguam yang ditemuramah: “Terdapat dua sebab tindakan boleh diambil. Salah satunya melalui kontrak (cth: perlanggaran kontrak) dan satu lagi melalui tort (cth: kecuaian).” [Back lebih lanjut: Did you know you can be taken to court for something that is NOT a crime?] [Baca lebih lanjut: 10 things to know when signing a contract] Sekiranya kereta anda mengalami kerosakan atau dicuri… Dalam hal ini, tergantung pihak mana yang menyebabkan kerosakan atau kecurian. Adakah operator valet cuai semasa memandu kereta anda? Adakah kereta dicuri disebabkan operator valet lupa untuk mengunci kereta? Jadi syarikat valetlah yang harus bertanggungjawab ke atas hal-hal tersebut. Anda harus mencatat nama operator dan syarikat valet berkenaan semasa membuat saman. Jika sekiranya kereta anda mengalami kerosakan disebabkan bumbung tempat parkir runtuh atau pegawai keselamatan mengabaikan tanggungjawabnya, haruslah anda berunding dengan operator bangunan tempat parkir itu. Dengan itu, tiada alasan untuk mereka tidak bertanggungjawab ke atas musibah yang berlaku terhadap anda, bergantung kepada klausa pengecualian mereka. Sekiranya kemalangan disebabkan operator valet… Sudah tentu operator valet salah dan syarikat valet yang harus dipertanggungjawabkan atas kesilapan operator valet. Sekali lagi, catatlah nama operator dan syarikat valet berkenaan semasa membuat saman. Sekiranya jika terdapat pemandu lain yang melanggar kereta anda di valet… Jika operator valet meletakkan kereta anda di tempat yang betul dan selamat (cth: mereka tidak meletak kereta anda dengan cara atau di tempat yang akan dilanggar oleh pemandu lain), jadi adalah menjadi tanggungjawab pemandu yang melanggar kereta anda itu. Akan tetapi jika sekiranya langgar lari, menjadi sukar untuk mengesan si pelanggar itu, anda boleh meminta rekod dari rakaman CCTV yang terpasang dari operator bangunan. Jika mereka menolak, anda boleh meminta bantuan dari “Norwich Pharmacal” order, di mana mereka boleh diminta memberi rekod yang dapat membantu dalam siasatan. Servis Valet seumpamanya meminjam kereta anda untuk tujuan simpanan Dengan kata lain, kereta anda berada di luar kawalan anda untuk sementara waktu. Beberapa cara boleh diambil sebagai langkah berjaga-jaga untuk mengurangkan risiko terjadinya hal-hal yang tidak diingini. Sama ada anda sendiri yang meletakkan kereta anda atau melalui perkhidmatan valet, anda masih boleh mangambil langkah seperti tidak meninggalkan barang-barang berharga di dalam kereta, mengunci kereta dan meletakkan kereta di tempat yang tidak berbahaya (seperti di tapak pembinaan)."
"RapidKL came up with a new way to stop the MRT vandals. But they need YOUR help! The past few weeks have played witness to a huge stir amongst public transport users in Malaysia, mainly due to the opening of the brand-new, sleek and futuristic MRT stations and trains – and along with them, the introduction of additional public bus routes that work with these trains to make previously out-of-reach areas accessible. However, a greater ruckus was caused even more recently by reports that a few MRT stations had been vandalised and damaged within just 5 days of their respective launches. Comments and opinions blossomed everywhere in response to these reports, with some remarking that “This is why Malaysians can’t have nice things.” Just 5 days in, and the victims are already popping up. Image Credit: The Straits Times These incidents also bring to light a pressing question, and that is: are there no penalties for those who misuse or vandalise Malaysian public transport systems? More importantly, if these cases of misuse hurt other people or damage their belongings, who shoulders the responsibility? Breaking the rules will get you fined RM500 - except for smokingThere is no debating that our public transport systems are open to all who can afford and are capable of riding them. It must be remembered, though, that the term “capable” here also refers to the ability of passengers to abide by the laws that have been set for them when riding these systems. Some of the more popular rules on Malaysian public buses and trains include: No pets are allowed onboard No smoking is permitted on any vessels No eating or drinking in paid sections of stations – such as on platforms and onboard vessels No carrying of firearms or explosives on vessels Some of the more well-known rules on the KTM Komuter. Image Credit: SAYS Breaking any of these rules is a punishable act, and the penalty normally involves a fine of RM500.00. But smoking incurs a much harsher punishment, as explained in the Land Public Transport Act 2010: Section 203 of the Land Public Transport Act 2010 – Smoking prohibited (In part): (1) No person shall smoke any cigarette or tobacco products in or on any railway or railway premises, public service vehicle or tourism vehicle. (2) A person who contravenes subsection (1) commits an offence ... PENALTY: Imprisonment for a maximum of 2 years, a maximum fine of RM10,000.00, or both. There is no sneaking past these laws either, even though you may not always see police officers in the vicinity of a public transport station or onboard the vessel or vehicle itself. This is because the Land Public Transport Act 2010 is actually enforced and implemented by the Land Public Transport Commission, otherwise known as the Suruhanjaya Pengangkutan Awam Darat (SPAD). Large bags and full-sized bicycles are also off-limitsUPDATE: You can now bring full-sized bicycles onboard, subject to certain terms and conditions. Read more here. You are also not allowed to bring any goods, items, or luggages into a public transport vessel if the items in question have been deemed unsuitable for onboard carriage. If you are unsure about whether some of your belongings are permitted to be carried onboard, check with the officers at information counters of stations, or with drivers in the case of buses. Remember that the LRT and MRT trains can get tightly crowded too. Image Credit: Isaac Tay's Flickr Why, you ask? Well, it's presumably because these items may present a safety hazard in the event of an emergency or cause discomfort for other passengers. Going against this practice could result in you receiving a massive penalty, as the Land Public Transport Act 2010 elaborates: Section 198(5) of the Land Public Transport Act 2010 – Unlawfully bringing dangerous or offensive goods or luggage (In part): A person who takes or deposits or causes to be taken or deposited any dangerous or offensive goods or luggage upon a relevant vehicle or railway ... commits an offence ... PENALTY: Imprisonment for a maximum of 7 years, a maximum fine of RM50,000.00, or both. But what about vandalism?If the artist in you wants to satisfy the urge to dress the shiny walls of your nearst MRT station with visual masterpieces, you may want to hesitate as you reach for that can of spray paint or your hammer and chisel. It may seem like a harmless act, at first glance, but it can also be regarded as a form of vandalism; an act of defacing or damaging public transport properties – and if this proves to be the case, you may find yourself in a huge cauldron of hot soup, according to the Land Public Transport Act 2010: Section 128(1) of the Land Public Transport Act 2010 – Damage, whether wilful or negligent, etc. (In part): Any person who— (a) wilfully or negligently damages any railway, railway premises or any property belonging to a licensed operator; commits an offence ... PENALTY: Imprisonment for a maximum of 3 years, a maximum fine of RM5,000.00, or both. Just some of the casualties of vandalism that the new Malaysian MRT stations have seen in the short time they've been open. Image Credit: SAYS You may also wish to take heed of the fact that when it comes to vandalism, the Land Public Transport Act 2010 does not stand alone and is supported by the Penal Code. This is demonstrated through 2 specific sections, the first of which is Section 425 for Mischief - which in this context can be taken to mean that you're purposefully causing damage to something. This is punishable with imprisonment for a maximum of 5 years, a fine, or both. In addition, Section 430A of the Penal Code also specifically penalizes damage to public transportation: Section 430A of the Penal Code – Mischief affecting any public transportation (In part): Whoever commits mischief by doing any act with intent or with the knowledge that such act is likely to obstruct, upset, overthrow, injure or destroy ... any form of public transportation, ... PENALTY: Imprisonment for a maximum of 20 years, along with a fine or whipping. But nothing gets damaged then I shouldn't get punished....right?Some of unusual sights that you may just see on the MRT, documenting misuse of the trains. Image Credit: Kaki Share Contrary to popular belief, and despite the fact that it is not a well-known part of the law, the misuse of public transport properties – from stations to the vessels themselves – is also an act that is punishable by law. This is especially the case if the misuse causes other riders discomfort and harm. So yes, using the hand rails as a baby cradle or a jungle gym is actually an offence. This prohibition is iterated in a number of forms in the Land Public Transport Act 2010, as seen below: 1. Being a nuisance Section 200 of the Land Public Transport Act 2010 – Disorderly or offensive behaviour or nuisance (In part): Any person who— (a) behaves in a disorderly or offensive manner or commits any nuisance on a railway coach, railway premises, public service vehicle or tourism vehicle commits an offence... PENALTY: Removal from public transport property by force, imprisonment for a maximum of 3 months, a maximum fine of RM1,000.00, or all three. 2. Endangering other passengers Section 201 of the Land Public Transport Act 2010 – Wilful act or omission endangering passenger (In part): A person who wilfully does any act, or wilfully omits to do what he is legally bound to do, ... knowing that he is thereby likely to cause the safety of any person travelling or being upon a railway, public service vehicle or tourism vehicle to be endangered, commits an offence ... PENALTY: Imprisonment for a maximum of 7 years, a maximum fine of RM50,000.00, or both. 3. Being negligent towards their own safety or the safety of othersSection 202 of the Land Public Transport Act 2010 – Negligent act (In part): A person who rashly or negligently, and without lawful excuse, does any act which is likely to endanger his own safety or that of any person travelling ... commits an offence ... PENALTY: Imprisonment for a maximum of 6 months, a maximum fine of RM2,000.00, or both. Surprised? But wait, there's more! Image Credit: GIPHY All three of these sections of the Land Public Transport Act 2010 combine and work in tandem to say one thing: Do not misuse public transport systems and policies, because you will be held responsible for your actions – especially if those actions bring trouble to another traveller. And now, RapidKL will shame you on social mediaEvidently, vandalising public transport properties is not something to be taken lightly! However, if prison or fines aren't scary enough for some people, perhaps being shamed on social media will - as RapidKL has started doing on their Facebook page: What it boils down to, at the end of the day, is our own behaviours and habits on a daily basis. If we, as Malaysians, are able to look after the public facilities and amenities that have been made available us, new treats like the MRT will not have to exist in constant fear of being destroyed or abused. And we can't always depend on the authorities being there to stop it from happening.For instance, in the event that you see someone exhibiting potentially dangerous or suspicious behaviours in the vicinity of a public transport property, if not outrightly vandalising public transportation, do not hesitate to speak to any nearby officers, SPAD representatives, or the authorities. You can reach the SPAD by their hotline (1-800-88-7723) or through SMS (Type ""SPAD Aduan <your complaint>"" and send to 15888). RapidKL themselves have prepared a special number that you can send photos and complaints to via Whatsapp - 010-7664472. ""[We] seek the support of our commuters. Help us to tell off people who you see committing acts of vandalism, indecency and misbehaviour. If you do not feel comfortable to do that, snap a photo and share it with us for appropriate action to be taken.” - Zohari Sulaiman, Rapid Rail CEO, as quoted by Free Malaysia Today Remember, keeping our community and our public transport facilities safe is not just the law’s duty, but also an obligation of all Malaysians alike."
"5 changes to Malaysia's bankruptcy law that makes it harder to become a bankrupt As of March this year, there were 293,086 bankrupts (with Selangor topping the list) in Malaysia. The number of bankrupts increased by 13.9% last year compared to 2015 and the bulk of this is made out of citizens aged between 25 and 44. Though it may sound hard to believe, one in four is as a result of hire-purchase agreements for vehicles. So, cars and motorbikes which are the lifeblood of the working class heroes today may also be the banes of their existence. As such, Datuk Seri Azalina Othman proposed various amendments to the existing Bankruptcy Act 1967 (""BA 1967"") which was approved by Parliament this year. To avoid confusion, the BA 1967 is now known as the Insolvency Act 1967 (""IA 1967"") and these changes were made using the Bankruptcy (Amendment) Act 2017 (""BAA 2017"") To make it clearer, we will look at the old law (BA 1967) followed by the new law (IA 1967) after the BAA amendments. The most obvious change is that the BA 1967 got a name change and is now known as the Insolvency Act 1967 (""IA 1967"") following the changes made under section 4 of the BAA 2017. What is the difference between being insolvent and being bankrupt? Being insolvent means that you are unable to pay off your debts while being bankrupt is when you have been served with bankruptcy papers and have been formally made a bankrupt by the courts. The BAA 2017 has just came into force on 06 October 2017 and the Insolvency Department is now working towards releasing 50,000 bankrupts from bankruptcy. This means that the changes listed below are already in effect. All technicalities aside, let us get to the meat of the issue: how do these changes make it harder someone to become a bankrupt? 1. You need to owe more money to be declared a bankrupt Old law (BA 1967) Under the old BA 1967, the minimum required for a creditor (the person you owe money to) to serve bankruptcy papers to an individual was RM30,000. To put it in perspective, RM30K today is roughly what you would owe the bank after putting your down payment for a Perodua Axia. Which sounds pretty insane because the Axia is regarded as many to be one of the cheapest options out there. RM30K would have been a lot of money in the 1960s when the Act first came into force but given the forty-odd years that have passed, change is sorely needed. New law (IA 1967) Given this antiquated threshold, the government saw fit to jack up the bar and as amended by the IA 1967, the amount needed for you to be declared a bankrupt now stands at a minimum of RM50,000: Section 12(a) BAA 2017: Section 5 of the principal Act is amended...by substituting for the word 'thirty' the word 'fifty'. This means that it will now be harder for you to be declared a bankrupt and perhaps, this move was meant to address the surprising fact that many Malaysians are in financial poverty due to car loans. 2. Social guarantors can no longer be declared bankrupt Now you might be familiar with what a guarantor is but what exactly is a social guarantor? A social guarantor is defined under the Insolvency Act 1967 as those who do not profit from loans and provide guarantees to loans such as educational loans, hire-purchase loans and housing loans. These are typically family members or friends who in the past, due to defaults in the another's loan repayment, would have to face bankruptcy as well. Old law (BA 1967) Actions against social guarantors used to be allowed when a creditor has exhausted all other means to recover a debt owed to him as stated in section 5(3) BA 1967: ...creditor not entitled to commence any bankruptcy action against a social guarantor unless he proves to the satisfaction of the court that he has exhausted all avenues to recover debts owed to him... New law (IA 1967) Under the amendments provided for in section 12(b) BAA 2017, the IA 1967 no longer allows social guarantors to be declared bankrupt. Bankrupts can petition to be made a non-bankrupt but their creditors are allowed to object to this. The new law places a cap on this by disallowing objections against members of the public who are deceased, disabled or suffering from a serious illness as certified by a Government Medical Officer. On the other hand, if you are a guarantor OTHER than a social guarantor, this law will not apply to you. However, you would be entitled to extra protection where creditors are not allowed to take an action against you unless they have obtained leave from the court (this means seeking permission from the court). Section 3 IA 1967: A petitioning creditor shall not be entitled to commence any bankruptcy action - (a) against a social guarantor; and (b) against a guarantor other than a social guarantor unless the petitioning creditor has obtained leave from the court. Section 4 IA 1967: Before granting leave referred to in paragraph 3(b) [non-social guarantors], the court shall satisfy itself that the petitioning creditor has exhausted all modes of execution and enforcement to recover debts owed to him by the debtor. This means that social guarantors now enjoy blanket immunity whilst the other kinds of guarantors are better protected by making actions against them a last resort. This is a fantastic provision as you can in the pie chart above, guarantors make up 10% of all bankruptcy proceedings in Malaysia. Beyond that, not allowing objections to certain groups of society has been termed as a humanising element by certain parties wherein the shame of bankruptcy no longer haunts such individuals. 3. You can stop being a bankrupt automatically Old law (BA 1967) Under the old law, you can petition to be a non-bankrupt after five years provided that there are no objections from your creditors. Whether or not you would be released from bankruptcy depends on the Director General of Insolvency's discretion. Section 33A BA 1967: The Director General of Insolvency may, in his discretion...issue a certificate discharging a bankrupt.... New law (IA 1967) You can now be automatically discharged if you meet certain requirements laid out in section 33C of the IA 1967. The two important points to be noted in section 33C IA 1967 are: (i) There is now an automatic discharge, subject to good behaviour (making payments towards your debt and submitting a full accounting of your moneys and property), instead of being at the mercy of the Director General's discretion (ii) The timeline has been reduced to three years from five years. Section 33C IA 1967: A bankrupt shall be discharged...on the expiration of three years from the date of submission of the statement of affairs...(a) if the bankrupt has achieved amount of target contribution of his provable debt; and (b) if the bankrupt has complied with the requirement to render an account of moneys and property to the Director General of Insolvency. 4. You can now negotiate your way out of bankruptcy Old law (BA 1967) No such mechanism exists. New law (IA 1967) Section 8 BAA 2017 inserts the following into section 2c(1) IA 1967: A debtor may propose a voluntary arrangement to his creditors any time before he is adjudged bankrupt. At this juncture, you might be wondering why you would want to propose any kind of arrangement with your creditor, and what in the world is a voluntary arrangement. A voluntary arrangement basically allows you to be your own hero by making arrangements to stop yourself from being a bankrupt before it happens. This arrangement is a preemptive measure where if you ever find yourself steeped in debt, you can propose to your creditors a debt repayment plan e.g a five year repayment plan. Summarising the procedure, as a debtor (someone who owes money to another person), you need to appoint a nominee (someone who is listed in the IA 1967 such as a registered accountant, a lawyer etc.) and seek for an interim order (temporary court order) of 90 days. During this interim order, your nominee must gain the approval of creditors for the voluntary arrangement to take place. This is provided for under section 2c(2) IA 1967: A debtor who intends to propose a voluntary arrangement shall - (a) appoint a nominee to act in relation to the voluntary arrangement or for the purpose of supervising the implementation of the voluntary arrangement... In essence, it can be argued that this amendment allows debtors more freedom to dictate the terms of their repayment and prevent the crippling effects of bankruptcy such as the prohibition of overseas travel except in limited situations and not being allowed to own property. 5. Now you will definitely be informed of your bankruptcy status Old law (BA 1967) A common complaint of many bankrupts today is that they were unaware that they had been served bankruptcy papers. This is because section 3(2) BA 1967 merely states that notices have to be served in a ""prescribed manner"" leading to an odd situation where you could be a bankrupt and not even realise it. This is due to the fact that the papers were not delivered personally to the debtor but were delivered through a substitute service. A substitute service is essentially passing over the documents through a court-approved friend or family member, by publishing it in the local newspapers, sending it via mail, or leaving it at your workplace. New law (IA 1967) Section 9(b) and (c) BAA 2017 amends this undesirable situation and now section 3(2A) IA 1967 provides that bankruptcy notices need to be served personally to a debtor and a substituted service can only be used when the creditors manage to prove to the courts that you had tried to avoid getting served: ...creditor can prove to the satisfaction of the court that the debtor with intent to defeat, delay or evade personal service - (a) departs out of Malaysia or being out of Malaysia remains out of Malaysia; or (b) departs from his dwelling house or otherwise absents himself, or secludes himself in his house or closes his place of business. You can no longer be declared a bankrupt without your knowledge! Unless you were already trying to run away. Yay! If I am bankrupt now, does this mean I am no longer a bankrupt? Unfortunately, the BAA 2017 does not apply to people who already have bankruptcy petitions against them. This means that it does not apply to cases before the coming-into-effect of the BAA 2017. Section 60(1) BAA 2017: This Act shall not apply to a debtor or bankrupt against whom a receiving order or adjudication has been made before the coming into operation of this Act. With this being said, bankrupts who fall under the exceptions provided for in section 33B(2A) IA 1967 (bankrupts who are deceased, living with disability or suffering from serious illness) can still seek a discharge from bankruptcy PROVIDED that they fulfill the minimum five year requirement as per the old BA 1967 and not the three year requirement under the new IA 1967. This ban against current bankrupts also also applies to social guarantors who have pending bankruptcy proceedings against them. Hence, they cannot rely on the added protection brought about by the BAA 2017 amendments. What can I do to prevent myself from falling into bankruptcy? If you ever find yourself caught in a financial pickle, you can head over to Agensi Kaunseling dan Pengurusan Kredit (""AKPK"") for free financial counselling and debt management. If you are unsure of your current financial status, the government has launched an app that enables you to check your bankruptcy status. Otherwise, you can always proceed to the Department of Insolvency's website or their head office in Putrajaya and pay a nominal fee in order to find out where you stand."
"Can you go to jail for installing tracking apps on your BF or GF's phone? It is the age of the internet. Everyone is connected to everyone else. Or at least, our devices with our personal information are.In such a time, the methods we can use to gain information about other people has become more diverse. You can ""check out"" someone's profile on Facebook or ""follow"" them on Instagram and Twitter. Naturally, this romance of the Internet can be seen in romantic relationships as well. In a relationship (or possible relationship), the Internet can be a treasure trove of information about your beloved other half. But what if you feel that is not enough? What if you were to hack or secretly access her or his smartphone without their authorization - Can you be jailed for this? First, what is ""Hacking""? When we think about hacking, most of us may think of the hacker group Anonymous and many other technologically difficult feats of cyber crime ingenuity. In actual fact, it may not be as complicated as we think. According to Cambridge Dictionary Online, hacking is “the activity of illegally using a computer to access information stored on another computer system or to spread a computer virus.” This is similar to what the Computer Crimes Act 1997 has termed unauthorized access:For the purposes of this Act, a person secures access to any program or data held in a computer if, by causing a computer to perform any function, he—a) alters or erases the program or data;(b) copies or moves it to any storage medium other than that in which it is held or to a different location in the storage medium in which it is held;(c) uses it; or(d) causes it to be output from the computer in which it is held whether by having it displayed or in any other mannerBut hang on, the law talks about computers. What if I accessed my partner's information on a phone or tablet? The Computer Crimes Act also clearly defined some key points on what is a computer, stating:“computer” means an ... data processing device, or a group of such interconnected or related devices, performing logical, arithmetic, storage and display functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device or group of such interconnected or related devices, but does not include ... similar device which is non-programmable or which does not contain any data storage facilityBasically, what this means is that a smartphone or tablet, by the definition above, is considered a computer and unauthorized access covers any information on the device that was accessed without the original party’s permission, regardless of whether you are using it against them or you are merely viewing the information.So putting these two points together - along with the assumption that you can't or don't actually perform Anonymous-level hacking - determining wether or not you hacked your partner's device will largely hinge on one thing - Were you given the password? If you gave them your password, you also gave them permissionIn ""Cyber Crimes: Lessons from the Legal Position of Malaysia and Iran"", Manap and Taji explain unauthorized access as referring to ""a person who definitely has no right over the computer system or database, get access without permission from the owner. In order to prove one’s access is unauthorised, the intention of the computer’s owner has to be made clear.""So in general circumstances, giving someone your password carries the implication that you have also given them permission to access your device - if you didn't want them to access it then you shouldn't have given them the password in the first place. But of course, it should also be clarified that knowing the password isn't the same as being given the password. Picture this. Let’s say you have a curious partner whom, by pure honest-to-goodness coincidence, happened to look over your shoulder and see you entering your password. So, he or she now knows how to access your device or account. Does this count as authorization?It would not. You did not specifically tell them your password. You may not even have been aware that they were looking. It also goes without saying that they also can't use this password to gain access and download an app that would allow them to spy on your everyday activities.So, now you may be thinking, ""If I didn't authorize my partner by giving them my password, that means they violated my right to privacy, correct? Can I sue them for invasion of privacy?"" Well, hold up a little there. Suing is hard, but the offender can (possibly) be put in prisonWhile we're not saying that it isn't an invasion of privacy, you might have trouble suing for this as the Tort (reason for legal action) of invasion of privacy has so far only been applicable on the grounds of a woman's modesty (refer here and here).[READ MORE: What is a Tort?]But not to worry, if your device was accessed without your authorization, you can still get the authorities to take action by making a police report… for which there's a punishment if found guilty. Section 3(3) of the Computer Crimes Act - A person guilty of an offence under this section shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both.Which means, if the authorities finds the person guilty of hacking, they can either throw them in prison for up to 5 years, fine them up to RM50,000, or jail and fine them just for good measure.You may be wondering, what if you didn’t lock your device and your partner accesses your social media contacts and messages - Is this illegal as well? Yes, it is indeed illegal. If you were to check the Penal Code, you will notice a clause known as Criminal Trespass which states:441. Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property; or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”. While the punishment for this may not seem as heavy as hacking, it can still be pretty daunting with imprisonment of up to six months and/or a fine of up to RM3,000 if found guilty.In case you're thinking, ""But isn't property, real estate?"" Property doesn't just refer to real estate or land, but refers to means ""a quality or trait belonging and especially peculiar to an individual or thing"""" (as defined by Merriam-Webster). In essence, anything that is owned by someone is known collectively as property, which includes smartphones and tablets. Kindly refrain from hacking your boyfriend's or girlfriend's smartphone. While it would be highly unlikely that such an incident would lead to police reports (as it can be settled privately within the relationship) please consult a lawyer if any legal proceedings have been taken against you. If you are the wronged party however, and the perpetrator argues that implied consent was given, you may want to consider issuing a cease and desist letter - again, seek out a lawyer for further advice. Or you could also just, you know, change your password and not give it out in the first place."
"Is DBKL allowed to detain homeless people because of the SEA games? There’s been recent news about the homeless being rounded up by DBKL to “clean up the streets of KL” ahead of the Sea Games this 19 August. But are the city authorities rounding up the homeless just to clean KL up for the sporting event? Deputy Federal Territories Minister Loga Bala Mohan explained that DBKL has been working with the Social Welfare Department (JKM) for 3 years to get the homeless to transit homes.Screencapped from Facebook.We have no idea what it’s like solving problems for the homeless, but problems with managing the homeless are not exclusive to Malaysia. Many cities worldwide have their own ways of dealing with the homeless, some rather hostile like uncomfortable benches and spikes on sidewalks. Suffice to say, it’s not a simple problem to tackle.Spikes in Guangzhou, China. Image from DailyMailWe can’t say anything about actual practice, but Malaysia has had the Destitute Persons Act 1977, which makes it compulsory for the authorities to manage the homeless. However, it also doesn’t give the homeless a choice whether they want to be helped or not.Who is a “destitute person”?Under the Interpretation section of the Destitute Persons Act 1977, a destitute person is: “a) any person found begging in a public place in such a way as to cause or to be likely to cause annoyance to persons frequenting the place or otherwise to create a nuisance; or (b) any idle person found in a public place, whether or not he is begging, who has no visible means of subsistence or place of residence or is unable to give a satisfactory account of himself;”This means that drug addicts and illegal immigrants can be rounded up using this act. You may want to take note that busking without a permit can get you scooped up as well. This is because this is what “begging” means in law, which includes busking:Destitute Persons Act 1977 - Section 2 (Interpretation) in part“begging” means any conduct calculated to induce the giving of alms, whether or not there is any pretence of singing, playing, performing, offering anything for sale or otherwise;""Cikgu Man"" was scooped up for ""begging"". Image from malaysiakiniMost developed countries have anti-begging laws to keep their streets safe, including Canada and the UK. This is because not all beggars are genuine, and many cases involve exploitation, especially of children. Also consider our local infamous blind man who regularly stands in the middle of roads, blocking traffic until he’s paid off. Homeless people are required to enter welfare homesWhat’s supposed to happen when the homeless are rounded up? Section 3 of the Destitute Persons Act provides that officers and the police can take charge of a destitute person and produced before a Magistrate court within 24 hours. Note that being homeless is not an offence in Malaysian law and the homeless are not being “arrested” so to speak.A social welfare officer will prepare a report, pending which the person may be sent to a welfare home by the Magistrate. Homeless persons can also voluntarily enter a welfare home.They remain there until they can support themselvesThe Magistrate can require a homeless person to stay in a welfare home for up to 3 years. If the social welfare officer’s report deems so, the order can be extended for up to another 3 years.During this time, the homeless are required to earn their keep in the welfare home, or seek suitable employment elsewhere by Section 9 of the Destitute Persons Act:“Any person residing in a welfare home may be required to engage in any suitable activity, either with a view to fitting him for employment outside the welfare home or with a view to contributing to his maintenance in the welfare home.”Under Section 8, once they find a way to maintain themselves, or have found someone able and willing to give them proper care and support, any homeless person can be discharged by the manager of the welfare home. It’s actually a crime to avoid or escape welfare!A transit home for the street folk. Image from The StarWhen the homeless:1) refuse to be taken in; 2) escape from their officer-in-charge; 3) run away from a welfare home; or 4) fail to return on time,they have now committed an offence and could be sent to prison for up to 3 months or… a welfare home (er, home sweet home?). This is provided in Section 11 of the Destitute Persons Act.Wait, what if they have mental disorders?It’s an attentive and valid concern. What if a homeless person is homeless because of a mental disorder and runs away from the strange officer taking them in? Not to worry, Section 10 of the Destitute Persons Act provides that:“Any person residing in a welfare home may, if so directed by the medical officer, be sent to a hospital or other medical institution for treatment, and shall be deemed while receiving such treatment to be a resident of the welfare home.”Furthermore, the law is understanding of their condition in this case. The Penal Code provides in Section 84 that when a person is “unsound of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law”, they won’t be found guilty of a crime.Do people have the right to be homeless?It’s nice to know that we have a welfare system for those who can’t afford a roof over their heads. Our law makes the “welfare” compulsory which is strange and some have argued that it violates the homeless’ right to freedom. It’s a law that has not been reviewed for a long time and homelessness is a little understood condition by many. Being such an old law, it has been called for review to be updated and consider the needs of homeless people.Whether or not DBKL is making rounds recently merely for the Sea Games, they are well within their power to do so, and they’ve been doing it regularly for some time (just maybe not at the recent scale). In the meantime, if you wish to help our street friends in KL, you can reach out to various soup kitchens to learn more:PERTIWI Soup KitchenKechara Soup KitchenReach Out MalaysiaDapur JalananNeed To Feed The Need"
"Once broken considered sold - Must I really pay for what I break? The myth:Signs such as ""you break it, you buy it"", ""nice to see, nice to hold, once broken considered sold"" can be used to make you pay for things you damage. The scenario:You walk into a shop selling premium house decorations … you see a nice vase, with a sign nearby that says “once broken considered sold” … it’s a really nice vase, so you decide to take a better look at it, admiring the intricate designs.And then it slips out of your hands.You try to wriggle away but the owner points angrily as his sign and says that it means you have to pay him. Is this true?It's not because of the sign itself. Here's why...Whether or not there was a sign at the shop, it's very possible for the owner to sue you under the tort of negligence if he or she wants to.This is because tort law deals with situations where you cause loss to another person. Therefore, with or without a sign, causing someone else to suffer a loss is enough to get you sued. [READ MORE: What is a Tort?]To establish a tort of negligence claim, the judge in Arab-Malaysian Finance Bhd. v. Steven Phoa Cheng Loon & Ors [2002] 2 MLRA 320 stated that four elements are needed:""To make out a case...in the tort of negligence, a plaintiff must establish four ingredients. First, he must show that he was owed a duty by the defendant to take reasonable care. Second, that the defendant breached that duty, third, that the resultant breach caused the harm in question and fourth that he (the plaintiff) suffered damage that is not too remote."" - Gopal Sri Ram JCAIn a nutshell, if the court thinks that you are responsible for the product and was careless in handling it then you would have to cough up your dough. However, such signs do not have to be read literally. If the product was placed precariously at the edge of a shelf and anyone walking by would be at risk of knocking it off, then it might be the shop owner's negligence instead.On another hand, if the item was not broken beyond repair but merely scratched or scuffed up, an analogy drawn from the UK criminal damage case of Roper v Knott establishes that merely making the item less valuable would be sufficient to make you pay for damages. So, even if that Rolex you dropped still works, the scratches on its face would still necessitate payment. At the end of the day, it is highly unlikely that legal proceedings would be initiated against you as, 9 out of 10 times, the cost of such proceedings would exceed the damage that you may have caused. With that being said, to avoid the stress of dealing with the above situation, it is always wise to exercise caution when dealing with the property of others."
"What (legal) powers do security guards in Malaysia have? Guarded neighbourhoods and high-rise buildings have become commonplace in Malaysia. But we sometimes still get annoyed by the inconvenience of having to register at the guardhouse every time we go visit family and friends. We follow the rules because hey, we don’t want strangers barging into our own residential area either. However, this MMA fighter from USJ was quite disgruntled that the security guards in USJ1 were told not to let him in. &amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span id=&quot;selection-marker-1&quot; class=&quot;redactor-selection-marker&quot; data-verified=&quot;redactor&quot;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt; Obviously, security guards are not the same as Malaysian police, but what can they legally do in their duties? What legal power do security guards have to check your identity and keep you out? We did some digging and interviewed Bryan Ng Yih Miin, partner from law firm Dee, Netto, Fatimah & Ng to provide you a visitor pass into the world of security guard laws. “Security agencies are also known as Private Agencies under the Private Agencies Act 1971. They are governed by the Ministry of Home Affairs (MOHA) and it is compulsory for these companies to obtain a license from the Ministry. The license comes with terms and conditions as well as guidelines of the dos and don’ts for security guards.” - Bryan Ng in e-mail interview with ASKLEGAL 1. Yes, guards are allowed to record your information You heard it, guards can ask to check your identity and record your details. However, they cannot keep your NRIC, driving license, or passport. The Ministry of Home Affairs issued a regulation in 2007 prohibiting security firms from retaining any personal identification documents, which also clarifies that they are allowed to check and record your identity, but must return your documents immediately after. Unless they have written permission from the Director General of the National Registry, only registry officers, the police, customs officers, and army personnel may request and retain your identification documents. “Only those persons mentioned under Rule 7 of the National Registration Regulation 1990 are entitled to conduct checks on the identity of a person and request for identification.” - Bryan Ng in e-mail interview with ASKLEGAL To be clear, you're not required by law to give them your information. You can and should check what your information will be used for and who they are (in case of someone pretending to be a guard for example). EDIT: The PDRM put up a Facebook post on 16 November 2018 verifying that security guards have no right to ask for or keep your IC. As for what should be done by the guards instead, the PDRM wants security companies to find alternatives to record the details of visitors. If a security guard asks for your IC, you can inform them that they are not allowed to do so. But if you’re met by resistance, don’t counter, but call the police or make a report instead. 2. They can hit suspects to prevent harm Remember Dzul: hit the can, not your brother! Image from NKKhoo. Lawyer Bryan Ng explains that the Ministry of Home Affairs can grant special powers for guards to do their duty. Otherwise, security guards are regarded as common citizens and are governed under the Penal Code and Criminal Procedure Code just like you and me. Whether the guards can hit someone will depend on whether the force is needed. Was someone or something under threat? Protection of people and property is allowed under Section 97 of the Penal Code, though subject to Section 99(4), that no more harm should be done than necessary to stop the threat. So a guard is allowed to hit a suspect to stop them, but he cannot continue beating the suspect up after that. 3. Guards can restrain trespassers Okay they might not shoot you, but they can certainly tie you up. Image from pilotsofamerica If someone trespasses on private property that security guards are guarding, they may perform a “citizen arrest” under Section 27 of the Criminal Procedure Code and restrain the trespasser. They must then without unnecessary delay hand over that person to the police. Just like ordinary citizens, guards are also allowed to arrest criminals that commit “seizable offences”. Seizable offences are offences that the police may arrest for without a warrant according to Section 2 of the Criminal Procedure Code. These are usually offences that involve life, serious injuries, break-ins, and drugs. If you need to inform any security guards of what this list includes, you can find it in the First Schedule of the Criminal Procedure Code. The third column states whether a warrant is required for arrest. 4. They can also bar entry to private property Security guards are allowed to bar unauthorised persons from entering the private property they are in-charge of. Note that this does not include the roads in most housing areas unlike in high-rise buildings and gated-and-guarded neighbourhoods which are privately owned. “In the event of high rise buildings, barring of a resident could happen when the resident does not pay the sinking fund. The management corporation of the high rise building may deactivate the electromagnetic access device under the Third Schedule of the Strata Management Act 2013.” - Bryan Ng in e-mail interview with ASKLEGAL If someone forces their way through, especially if using a vehicle, Bryan Ng suggests that guards call the police immediately as it is dangerous to try and stop them. 5. They need two licenses to carry firearms Image from Tegas Security You’ll have noticed some key locations like banks and jewelry stores have armed guards stationed. They are governed under the Arms Act 1960 whereby armed guards must be individually issued an arms license and permit. They are only allowed to discharge their weapon for the protection of life or property under Section 39 of the Arms Act. According to rules set by the Ministry of Home Affairs, security firms must have a License A for firearms that is issued to the company by the PDRM, and each armed security guard must have their own Carry & Use License. They are people just like us, doing their job protecting others In short, security guards already have the same right as anyone else to perform their duties. They just use it a lot more often than most of us. When it comes to any disputes you may run into with them, exercise any rights you may have but don’t attack them. Because then they have a right to guard against YOU! [READ MORE: What to do if you get attacked in public]"
"Susah ke jadi peguam ni? Kami tanya 3 bekas pelajar guaman pendapat mereka Untuk artikel ni, kami ingin fokus kan kepada satu bidang yang sangat dekat di hati kami di AskLegal iaitu jurusan perundangan. Untuk sambung belajar dalam jurusan ni, sudah tentu ada ciri-ciri yang perlu di nilai sebelum mendapat tawaran dan walaupun ciri-ciri tersebut berbeza mengikut Universiti/Kolej secara dasarnya sama sahaja.Bagi yang mendapat keputusan cemerlang sudah tentu korang layak untuk apply tapi bagi yang tidak, usah risau sebab anda masih lagi berpeluang untuk jadi lawyer. Berpandukan maklumat dari afterschool.my mereka menyatakan bahawa sekurang-kurangnya anda kena lulus (credit) 3 mata pelajaran dalam peperiksaan SPM (atau yang sama taraf).Manakala untuk STPM (atau yang sama taraf) perlu lulus 2 mata pelajaran dan tempoh antara STPM dan ujiannya perlu dilakukan dalam tempoh satu tahun akademik. Perlu diingatkan bahawa berikut adalah keperluan asas dan ini tidak menjanjikan tempat pemohon di jurusan perundangan. Tapi bila pemohon dah lulus dan diterima, apa yang boleh mereka boleh expect di universiti/kolej nanti?1. Penggunaan bahasa professional dalam dunia perundangan (tapi takde lah susah sangat)Seperti bidang-bidang professional yang lain, jurusan perundangan ada ayat atau perkataan istimewa mereka sendiri. Seperti contoh “Mens Rea” yang bermaksud niat atau “Actus Reus” yang bermaksud perbuatan ni berasal dari Itali (Latin) dan sering digunakan dalam mahkamah Malaysia. Jadi adakah ini akan menyukarkan pelajar-pelajar Malaysia? Untuk artikel ni, kami telah menemu-ramah 2 orang peguam dan seorang pelatih dalam kamar untuk membantu kami. Jiji (bukan nama sebenar) merupakan seorang peguam yang baru saje grad telah memberitahu bahawa penggunaan bahasa professional perguaman takde lah susah mana janji Bahasa Melayu dan Bahasa Inggeris telah dikuasi pelajar.Manakala Jasmin, seorang pelatih dalam kamar, bersetuju dengan kenyataan Jiji - “Salah satu yang paling saya ingat adalah ‘Res Ipsa Loquitor’ bermaksud perbuatan yang dinyatakan dalam tindakan (the thing that speaks for itself). Sebenarnya tak susah nak hafal sebab sepanjang berada di fakulti perguaman dan bekerja dikalangan peguam, ayat-ayat jargon ni sering digunakan dalam pertuturan harian tak kisah lah masa kat dalam mahkamah atau pun berlawak dengan kawan. Lama-lama awak akan hafal sendiri” - Jasmin, pelatih dalam kamar. Azlan yang sudah pun menjadi seorang peguam selama 4 tahun berkata, penguasaan bahasa Melayu dan Inggeris sangatlah penting. Malah katanya lagi, berkenaan tentang penggunaan perkataan jargon merupakan sebahagian dari hidup seorang peguam so nak tak nak memang kena tau. Tapi ni tak semestinya kena hafal semua perkataan jargon on-the spot.“Awak tak semestinya kena hafal satu kamus Inggeris untuk bercakap dalam bahasa Inggeris secara lancar. Kadang-kadang tu ada juga saya buka balik buku law untuk refresh balik perkataan-perkataan atau terms undang-undang. Nasihat saya, kena rajin baca, kuasai bahasa, dan banyakkan latihan” - Azlan, Peguam. 2. Tak semua peguam masuk mahkamah, ada juga yang duduk office jeMungkin ada yang taktau tapi bidang perguaman di Malaysia ni sangatlah meluas dan menurut Azlan, peguam terbahagi kepada dua jenis. Yang pertama adalah ‘litigation lawyer’, peguam macam ni adalah yang kita selalu nampak kat dalam TV tu iaitu masuk mahkamah dan berbahas tentang kes-kes yang mereka wakili. Yang kedua pula adalah 'conveyancing lawyer' atau non court lawyers, mereka ni pula tak masuk mahkamah tapi lebih kepada kertas kerja seperti menyelesaikan hal-hal undang-undang macam pembelian tanah, rumah, dan sebagainya.Tapi ada lagi satu jenis peguam yang bekerja secara eksklusif untuk syarikat yang menggaji mereka iaitu In-House Lawyers. Azlan berkata:“Apa yang saya nak cakap ni mungkin ada yang akan marah atau tak setuju tapi In-House lawyers ni bagi saya bukanlah peguam betul. Kalau korang pernah perasan, hampir semua syarikat besar mesti ada legal department. Tugas ‘peguam’ untuk syarikat tersebut adalah bagi memastikan setiap prosedur syarikat tersebut mengikut undang-undang tapi ni tak bermaksud mereka boleh ke mahkamah sebab kebanyakkanya takde lesen guaman, hanya ada ilmu tapi tak diiktiraf oleh Bar Malaysia. Mereka hanya bertindak sebagai penasihat undang-undang saje dan tak lebih dari tu” - Azlan, Peguam.(sebenarnya boleh je peguam bertauliah dan bekerja sebagai penasihat undang-undang dan bertanding dalam mahkamah tapi tu kami akan bagitau kat bawah nanti)Bagi yang nak sambung jadi sebagai peguam syariah pula, ia berbeza mengikut negeri sebab hal-hal keagamaan ditetapkan mengikut setiap negeri dan bukannya keputusan kerjaan persekutuan. Azlan berkata ada setengah negeri tu, kalau takde lesen guaman pun dah boleh jadi peguam syariah manakala ada pula negeri yang memerlukan lesen guaman. Pendek kata, korang kena check kriteria setiap negeri sebab ia berbeza.3. Tempoh chambering di semenanjung Malaysia dan Sabah/Sarawak berbezaSeperti yang kami kata kat atas tadi, dunia perguaman ada program persediaan mereka tersendiri dan ia dikenali sebagai chambering. Tapi korang jangan kelirukan dengan latihan industri sebab yang tu pun pelajar guaman kena buat juga. Gambar dari googlemei.blogspot.comBerdasarkan Jasmin dan Jiji, chambering secara dasarnya memakan masa 9 bulan untuk lesen guaman di semenanjung manakala 12 bulan untuk lesen guaman di Sabah dan Sarawak. Ini adalah kerana di Malaysia ada dua Mahkamah Tinggi iaitu Mahkamah Tinggi Malaya (semenanjung) dan Mahkamah Tinggi Sabah/Sarawak. Menurut Azlan, sewaktu perjanjian Sabah dan Sarawak dimasukkan ke dalam Malaysia mereka ingin ada mahkamah tertinggi mereka sendiri. Ini bermaksud mana-mana peguam yang dapat lesen di Sabah dan Sarawak tak boleh terlibat dengan apa-apa kes di Semenanjung dan juga sebaliknya. So kalau nak ambil semua kes di Malaysia, peguam tersebut kena ada lesen dari Semenanjung dan juga Sabah dan Sarawak (dan juga permit bekerja kalau dari Semenanjung) . Untuk latihan industri, ia perlu dilakukan dalam masa 1 bulan atau lebih (tengok syarat universiti/kolej yang korang pergi). Dan sebelum dapat sambung chambering, pelajar kena pastikan mereka dah dapat CLP (Certificate Legal Practice) atau lulus peperiksaan Bar.Menurut Jasmin lagi, biasanya jurusan perundangan akan memakan masa lebih kurang 5 tahun untuk menghabiskan pengajian ini termasuk juga setahun di asasi, tempoh ni adalah sama untuk IPTA (pengajian tinggi awam) dan IPTS (pengajian tinggi swasta). Tapi ni semua kalau takde yang repeat paper! Azlan pula berkata setiap proses chambering ni macam program mentor-mentee di mana setiap chambering (anak murid) akan ikut Master Pupil (cikgu). Sewaktu chambering kebiasannya anak murid tersebut diberi peluang untuk ikut cikgu mereka ke mahkamah, membantu menyediakan bahan untuk berbahas, menyoal siasat saksi (sebelum masuk mahkmah dan dibawah pengawasan peguam), dan apa-apa saje kerja yang berkaitan dengan perguaman. Selesai latihan industri dan chambering tak bermaksud korang boleh terus jadi lawyerMacam doktor atau jurutera (setengah bidang), Azlan kata pelatih guaman kena dapat PC (Practice Certificate/Sijil Amalan Guaman) dulu sebelum dapat jadi peguam. Selesai je tempoh chambering, pelatih dalam kamar kena apply untuk jadi lawyer. Long Call atau Call to the Bar ni merupakan satu proses macam graduation di mana pelatih dalam kamar akan dipanggil masuk ke mahkamah dan peguam yang bertauliah atau senior lawyer akan membuat satu kenyataan dan membacakan biodata pelatih dalam kamar tersebut kepada hakim dan orang awam.Dalam masa yang sama, senior lawyer atau peguam bertauliah akan memberitahu bahawa pelatih dalam kamar tersebut layak untuk mewakili sesiapa di dalam mahkamah di mata undang-undang. Selesai je long call atau call to the bar, pelatih dalam kamar tu secara rasminya ‘naik pangkat’ jadi peguam. Yeay!Bagi yang berminat untuk sambung belajar ke luar negara, pastikan korang check dengan LPQB atau Legal Profession Qualification Board sebab ada setengah negara dan universiti, Malaysia tak terima sijil degree guaman mereka. Jadi pastikan universiti yang korang nak apply tu ada kat dalam list LPQB. Selamat belajar!"
"If you spread rumors about 1MDB, you may actually hurt the investigation. Here's why We have freedom of speech in Malaysia, but that freedom to express and discuss is not absolute. On 24 July 2017, the Dewan Rakyat became chaotic after a motion to discuss 1MDB was rejected on grounds of being ""sub judice"". This is not the first time Malaysians have seen this happen with discussions of 1MDB in Parliament. Sub judice has been used beyond what can be discussed in Parliament, for instance, a report relating to N Dharmendran’s death in police custody has also been called sub judice by the Inspector-General of Police. All this mention of sub judice, but in the first place, what does it mean and how does it work? Sub judice is latin for “under judgment”. The rule is that cases which are being decided by the courts have limits on how they can be discussed publicly. Sub judice limitations exist because of 3 main reasons: 1) preserving the role of the court; 2) preventing rumours from influencing jurors, witnesses, investigators, and litigants (people who sue); 3) controlling pre-judging and wrongful speculation (it tends to end ugly). Here’s why you shouldn't speculate and make accusations Even we have been asked by a reader on another article. We had to check to be sure too! Before a case is decided, what could get you in trouble is when you allege facts, make accusations, or give opinions on what should be done by judges. An example of this would be the case of Roach v Garvan (1742) where a journalist published an article shaming a witness to court trial. The journalist was found in contempt for the following reason by Lord Hardwick: “Nothing is more incumbent upon courts of justice than to preserve their proceedings from being misrepresented. Nor is there anything of more pernicious consequence than to prejudice the minds of the public against persons concerned as parties in causes before the cause is finally heard.” - emphasis added by ASKLEGAL. Why is this important? Because sub judice discussion may allow a guilty person to walk free. While individual comments don’t do much harm, widespread allegations can quickly become accepted as truth with zero proof. This pretty much ensures there can be no fair trial, because the public has pre-judged the accused using mob rule, in which case the court has no choice but to let the possible criminal go free. This is because Article 5(1) of the Federal Constitution provides that: “No person shall be deprived of his life or personal liberty save in accordance with law.” Consider if the person was in fact innocent, but pre-judging had clouded everyone’s judgment into believing they are guilty. Or what if condemning a criminal ends up letting him walk free because a fair trial is no longer possible? This used to be much more serious when Malaysia still used a jury system. As members of the public, juries could be influenced by speculation and end up making biased decisions. Take an exaggerated example of a jury hearing a case about snatch thieves: they could be influenced by social media discussions about heartless and violent snatch thieves being on the rise, or fear being ostracized for not agreeing with those statements. They might be pressured and decide that two snatch thieves who were unarmed deserve the death penalty, a penalty reserved for heinous crimes in Malaysia, most notably murder. While the jury system was abolished in 1995, it's still a concern that rumours and speculation can affect investigator and witness perceptions, and even discourage people from taking legal action in fear of public stigma. To help you imagine what’s possible, consider that back in 1980, investigators, media, and the public all going full sub judice about an Australian mother’s taken child put her through 32 years of being wrongly shamed as a murderer. You can still discuss ESTABLISHED facts of a case Matters that go to court are serious in nature, and they sometimes involve matters of public interest. Can you discuss it publicly? Yes of course, but with a few restrictions. Facts that have been established in court can be openly discussed, and it is fair to critique and comment on them. For example, reported facts in the news are more likely established fact than a message you received on WhatsApp with no source. This is well within freedom of speech guaranteed by Article 10 of the Federal Constitution, subject to several exceptions. For sub judice, we’re particularly interested in the exception of contempt of court. What is Contempt of Court? Simply put, ""contempt of court"" is anything that disturbs or prevents the court from doing its job. Contempt of court can be punished by the courts themselves as provided in Article 126 of the Federal Constitution. But wait, “contempt” isn’t even defined in the law! What this means is that judges have a lot of discretion what they interpret as contempt of court, but in practice the list includes the following: 1) Interfering with court proceedings (such as barging into the courtroom) 2) Bribing or threatening a judge or witness 3) Threatening a person to keep them from suing 4) Disobeying court orders 5) Defaming a judge or the court system (fair comment is allowed, but not attacks) 6) Saying anything that would prevent a fair trial Judges do consider that the media has a role to play in catching criminals, but that role of spreading information stops where judgment and finding the truth begins. Contempt is not a very satisfactory area of law in many countries, as it’s full of contradictions and ambiguities. Generally, if no harm was done to a fair trial, the judge will be slow to cry “contempt”. Talk freely, just leave the judging to the court If there’s only one thing you remember about sub judice, let it be this: you can freely give fair comment and critique, but don’t pre-judge anything. There’s always been a fine line between rule by the people and rule by the majority. The sub judice restrictions are in place to prevent a trial by the media, or more relevant to today: trial by social media. Freedom of speech comes with the discipline and responsibility to not harm others with it, and we can all be more aware of what we say. We don’t see a better way to end than this quote from Lord Reid in Attorney-General v Times Newspapers (1973): “I think that anything in the nature of pre-judgment of a case or of specific issues in it is objectionable, not only because of its possible effect on that particular case but also because of its side effects which may be far reaching. Responsible ‘mass media’ will do their best to be fair, but there will also be ill-informed, slapdash or prejudiced attempts to influence the public. If people are led to think that it is easy to find the truth, disrespect for the process of law could follow,...”"
"5 serious problems that Malaysians have with lawyers - as revealed by our survey Regardless of where you're from or what age you are, there's a general perception that lawyers are greedy, evil, and soulless - and that's usually putting it mildly.However, words like ""greedy"" and ""evil"" only make good coffee conversation - it doesn't actually address what specific problems people face when it comes to legal services and, more importantly, what can be done to fix this perception and/or for lawyers to improve how they can serve the people. After all, everyone needs a lawyer at some point, from mundane stuff like buying property to more dramatic incidents like if you were charged with a crime or when you need to sue someone.A couple weeks back, we ran an unofficial survey asking Malaysians about their perceptions and experiences with lawyers. Depending on whether or not they had previously engaged a lawyer outside of contract-related affairs like SPA agreements (i.e. for buying property), they were either asked how they found the experience, or what they think engaging a lawyer would be like. There was also an optional section on what they think can be done to improve legal services in Malaysia.We'll be starting with the geeky demographic information, so if you want to head straight to the juicy findings, feel free to skip the next section.Geeky demographic informationFirst off, please note that this survey was designed, conducted, and interpreted by ASKLEGAL. We don't claim that the results are representative of the general population, so ""Malaysian"" in the context of this article is used for simplicity. The survey was conducted in both English and BM, with a total of 262 responses. It should be noted that, in general, many of the overall findings were similar regardless of language used in the survey.Respondents by state (Top 3 listed)We received responses from all across Malaysia, with the highest percentage (37.2%) from Selangor. Respondents ranged from 18 to over 66 years old with the highest number (38.4%) from the 26-35 age range. The majority of respondents were also educated to the Bachelor's Degree level, and earn within the range of RM2,500 - RM4,499 -- although in the BM survey, a slight majority of respondents earned between RM4,500 - RM6,499. Also, 71.5% of respondents have never engaged a lawyer outside of SPA agreements (80% for BM). This translates to 189 respondents who have never engaged a lawyer and 73 who have. Now, on to the fun stuff... 1. Willingness to see lawyersSummary: Those who have engaged lawyers before are more willing to see one in the futureWhile it can be expected that respondents who have never engaged a lawyer would be reluctant to seek one out when they run into legal problems...... A surprisingly high number of respondents who have previously engaged a lawyer also indicated that they would VERY UNLIKELY seek one out in the future. However, at an overall level, this group is still more likely to turn to a lawyer if they were to face a legal problem again. What would be significant though, is that those who responded that they would very unlikely approach a lawyer in the future also reported lower satisfaction scores from their experience (covered in Point 4) or left negative feedback in the survey's open-response section:Lawyers should walk the talk. Don't just promise this and that but cant deliver. Furthermore lawyers like to purposely drag a case longer and I dono why is that coz we are not going to pay anything extra. Lawyers tell a lot of lies. - Respondent feedbackInstead, most of our respondents would prefer to seek advice or help from friends first:The major reasons for not wanting to seek out a lawyer will be covered in the next three points.2. Satisfaction with legal servicesSummary: Most people seeing lawyers for the first time expect a bad experienceIn general, respondents who have engaged lawyers in the past considered their overall experience to be more positive than negative, although 9% (or 6 individual respondents) were very unsatisfied with the service they got.As mentioned in the previous point, many of these respondents who weren't happy with their previous experience with lawyers would be less likely to engage one in the future.It can also be inferred based on the written responses from those who have never engaged a lawyer that many expect their experience to be a less-than-positive one:""I want to know the reasonable expectations I should have (Cost, timing). And of course, its kinda difficult to deal with ego lawyer."" - Respondent feedbackMost of the lawyers are just after their clients' money and making promises that they can't even keep."" - Respondent feedback 3. PriceSummary: Most Malaysians expect lawyers to be expensive, and a significant number don't understand how legal costs workPrice, or the expectations of legal cost, is one of the main concerns highlighted by our respondents in their optional written replies. To start 95% of respondents who have never engaged a lawyer think that seeing a one for advice will be a costly affair. From this group, the majority think that advice from a lawyer would cost RM2,000 or more. As a side note, it should be clarified that advice usually does not include the lawyer's actual services - you're just consulting with the lawyer on your case. There is a possibility that this was not understood by some respondents of the survey. Respondents on how much they think legal advice would costThis view on high costs is also reflected in those who have previously engaged a lawyer, with 43.5% ""expecting"" it to be expensive, while another 40% found it cost more than they initially thought:What may be a bigger concern, though, is that while 81% of these respondents said that their lawyers explained the legal costs to them, about 1/5 of them did not understand the explanation given while another 1/5 said they weren't given an explanation at all:4. Fear of lawyersSummary: Many people find it hard to open up to lawyers and, subsequently, trust them. While we think price may play a role in this, there are perhaps other factors that may cause fear or mistrust among Malaysians towards lawyers - which may in turn affect how likely they are to see one when faced with a legal issue. It should be mentioned that most of our respondents who've engaged lawyers found them to be generally approachable:One of the questions we asked was how afraid, intimidated, or anxious our respondents would be about seeing a lawyer. In a comparison of data between respondents who have previously engaged a lawyer and those who haven't, there is a slightly lower level of apprehension in the group which has previously engaged one:However, this doesn't necessarily indicate that the actual experience is not as bad as the anticipation, as can be seen in the chart above. Not just that, 32% of those who have previously seen a lawyer still worry that their lawyer may disclose their personal or private information compared to 41% of those who haven't.Respondents who have previously engaged a lawyer (81.2%) are also less ashamed about about disclosing personal information to their lawyer compared to those who have not (67.1%). From their optional responses, respondents from both sides stated that transparency from their lawyers such as providing less technical explanations, being more approachable, and upfront with information and fees would help.""More transparency on what I'm getting. Because laws are very jargon like, I feel like its done on purpose to intimidate and not make people understand what we're getting into."" - Respondent feedback""Being a senior lawyer, they think they are GOD. They should avoid empty promises and be straightforward whether it can be done or not."" - Respondent feedback5. Accessibility to legal servicesSummary: Most Malaysians had no problem getting a lawyer, but this process can be improvedFortunately, accessibility to legal services doesn't seem to be a major problem in Malaysia, at least according to the results of our survey, as most of our respondents had no problem finding a lawyer.It's also notable that a majority found their lawyers through personal contacts, either through a recommendation (55%) or the lawyer being a personal friend (32%). We also gave the option for open-ended answers to this question, and some other notable responses were: Court-assigned (1) Through the Bar Council (1) Saw name in newspaper or social media (2) Skype (1) Depending on how you look at it, an issue that may be of concern is HOW services can be improved to make finding a lawyer easier since, based on questions to our site and Facebook page, many Malaysians aren't sure of what kind of lawyers to look for in the first place as different lawyers have different fields of specialty (i.e. Corporate, Family, Criminal, Syariah). The gap between lawyers and the public needs to be bridgedIf there is one conclusion that can be gleaned from the responses, it's that the perception of lawyers come from a lack of understanding of the law and, subsequently, what a lawyer's job scope actually is - discounting some bad apples ,of course. While factors such as transparency of legal fees and the ""humanizing"" of lawyers (by reaching out more to the public) would be helpful in this regard, there are still rules that may restrict this from taking place.""By listing the price range for the service and promote common law knowledge through social media. Organizing workshops or campaigns or forums to share the knowledge and let the people connect with the lawyers."" - Respondent feedbackWhether we know it or not, much of what we do in our every day lives has grounds in the law; be it driving (Traffic laws), buying stuff online (Contract/Consumer laws), or even suing a suitor who got cold feet after they promised to marry you (Seriously). So perhaps a basic understanding may improve how you communicate with a lawyer in the future, and be less intimidated by them. On that note, 58% of respondents who have previously engaged a lawyer would trust an online portal for legal information compared to 72% who have never engaged on before."
"Sexual harassment is not a crime in Malaysia. So what can victims do? Recently, Malaysia was shocked by two revelations of obscene physical conduct towards women. The first was a claim made by former CEO of MaGIC, Cheryl Yeoh against Venture Capitalist Dave McClure, and next were pictures of men doing obscene acts on the Shell cutout lady being shared on social media.To start with, there are no specific laws in Malaysia that is made to combat sexual harassment - this is not to be confused with sexual assault, which is a criminal act. For example countries, like India and Philippines have special bills tabled to combat sexual harassment. However, that doesn't mean offenders in Malaysia will get away scot free, there are still avenues in which these offenders can be put on trial.But first let's start with definitions....In Malaysia, sexual harassment is considered a workplace problemImage from HumanResourcesOnline.To date, sexual harassment in the Malaysian legal context is usually discussed in the context of the work space. This is interpreted in section 2 of the Employment Act 1955 as:""―sexual harassment means any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment;""In the non-legally binding Code Of Practice On The Prevention And Eradication Of Sexual Harassment In The Workplace prepared by the Malaysian Ministry of Human Resources, sexual harassment is defined as in Article 4 as:""Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment: - that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on her/his employment; or - that might, on reasonable grounds, be perceived by the recipient as an offence or humiliation, or a threat to his/her well-being, but has no direct link to her/his employment ""Sexual harassment can be further broken down into two categories in the Code of Practice: Sexual coercion - When someone uses their position of power to gain sexual favours Sexual annoyance - When someone acts in sexually suggestive ways to make the work space unwelcoming for you. Now moving to what can you do if you are sexually assaulted- In the workplace, sexual harassment is handled internallyAs previously mentioned, the Code Of Practice On The Prevention And Eradication Of Sexual Harassment In The Workplace is merely a guide and it's not compulsory for employers to enforce them.However, it is compulsory for employers to investigate any complains of sexual harassment as highlighted in section 81F of the Employment Act 1955 :81F. Any employer who fails—(a) to inquire into complaints of sexual harassment under subsection 81B(1); (b) to inform the complainant of the refusal and the reasons for the refusal as required under subsection 81B(2);(c) to inquire into complaints of sexual harassment when directed to do so by the Director General under paragraph 81B(5)(a) or subsection 81D(2); or (d) to submit a report of inquiry into sexual harassment to the Director General under subsection 81D(2);commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.So the conclusion that we can draw from here would be an investigation is compulsory and has to be done by your employer. The actions taken by your employer can range from firing the offender, suspending the offender, changing the offender's department and so on. However, this practice may not always end up with the victim receiving due justice. A paper written by Zarizana Abdul Aziz and Dr. Cecilia Ng highlights several issues, among which is:One clear difference was the lack of a standardised or even average time frame in carrying out the complaint procedure with the total period lasting from as short as 16 days to as long as 112 days. - Quoted from ""Combatting Sexual Harassment: The Way Forward""However this position of law has recently changed. It will be discussed later on in this article.A victim can also make a police reportAnother legal recourse that a victim of sexual harassment can take would be to report it to the police. An action may be taken under section 509 of the penal code:""Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes upon the privacy of such person, shall be punished with imprisonment for a term which may extend to five years or with fine or with both."" An example of this act in operation would be when it is used to charge a man who blackmailed his ex-girlfriend by threatening to spread her nude pictures.However, recent legal developments have given victims one more avenue to seek justice... The Malaysian Court recently allowed victims to sue their harassers.Supporters hugging after the Federal Court's landmark decision. Click here to watch video from The Star TVUp to this point, victims of sexual harassment can only get the offenders punished and they could never get any form of compensation. This changed in 2016, with the Federal Court ruling in the case of Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282.As a quick recap, Asmah bt Hj Mohd Nor alleged that Mohd Ridzwan bin Abdul Razak uttered several vulgar and harassing words to her in the workplace, such as: Kalau nak cari jodoh cari yang beriman, solat, you kena solat istikarah .. . bila you solat istikarah, you akan mimpi you berjimak dengan orang tu! You ni asyik sakit kepala saja, you ni kena kahwin tau … you nak laki orang tak? You nak jadi wife I tak? I banyak duit tau. Asmah filed a complaint against Mohd. Ridzwan with their employer and a committee was set up to investigate the matter. The committee's finding there was insufficient evidence for a disciplinary action but a strong administrative remand was given, resulting in Mohd. Ridzwan's work contract not being renewed. Surprisingly enough, it was actually Mohd. Ridzwan who took Asmah to court for defamation, and Asmah countersued. The case went all the way until the Federal Court and she was awarded with RM100,000 in general damages and RM20,000 in aggravated and exemplary damages.The court further defined sexual harassment in this case as:""After taking into consideration the above cases, empirical studies, and our personal researches, the recognizable hallmarks of sexual harassment are that they are unwelcome, taking the form of verbal and even physical, which include sexual innuendos, comments and remarks, suggestive, obscene or insulting sounds, implied sexual threats, leering, oogling, displaying offensive pictures, making obscene gestures etc. These overtures all share similar traits, in that they all have the air of seediness and cause disturbance or annoyance to the victim (short of a recognized psychiatric illness or physical harm)""Effectively, this for the first time introduced the tort of sexual harassment into the Malaysian legal system. Aside from allowing the victim to claim compensation, the decision was a landmark one as it changes how do we deal with offenders and victims of sexual harassment. As to how far the limitations and definitions of this will extend, it remains to be seen if and when other cases come to light. [READ MORE: What is Tort Law?]Men can be sexually harassed too!Just to be clear, victims of sexual harassment is not an issue exclusively to women but men can also be harassed. What's important is that these incidents need to be reported, whether you're a victim or a witness. In the words of Judge Suriyadi Halim Omar, who delivered the verdict on Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor :Sexual harassment is a very serious misconduct and in whatever form it takes, cannot be tolerated by anyone. ... Perpetrators who go unpunished, will continue intimidating, humiliating and traumatising the victims thus resulting, at least, in an unhealthy working environment. - Federal Court Judge Suriyadi Halim Omar, as quoted by HAKAM via Malaysiakini.If you're a victim, here are some steps you can take:1. Bring it up to your HR department. If no action is taken, or if the harasser is the owner of the company, forward the complaint to the Ministry of Human Resources.2. File a police report – this is so you have proper documentation if you decide to sue.3. Reach out to organizations such as the Women's Aid Organization (03 7956 3488) or All Women's Action Society (03 7877 0224). They can advise you further."
"If you get arrested by the PDRM, does that mean you're guilty? The Myth If the police arrest you, it means that you’re guilty of a crime. Image from Wikimedia Commons.The BackgroundWhether you’ve seen your neighbour taken away in handcuffs, or read some news online about someone innocent, or acting in self-defence being arrested, many people assume that being arrested means the police consider you GUILTY of a crime. Not only the police do this, many people are quick to call those arrested “criminals”. You all remember the case of Mohamad Zulkifli Ismail who was charged with murder for protecting himself from robbers? After his arrest, his wife was apparently harassed by people who called her husband a “murderer”.“According to Zulkifi’s wife, Puan Zaimah, she is unable to carry out her daily job of operating her small stall that sells breakfast, as insensitive people who accuse her husband of being a murderer frequently harass her. She is forced to shut herself in at home with her kids, where she is safe.” - exerpt from TheCoverage.my, emphasis added.But does getting arrested by the police mean you’re guilty of the crime? Is it true?It gets technical, but...Or at least, not yet.Here’s whyThere’s a legal concept called the “presumption of innocence” - that you are assumed innocent until you are proven guilty. The distinction isn’t always clear-cut, but there’s roughly 3 stages until you’re actually guilty of a crime: arrest, being charged, and conviction.Arrest - Not guilty yetWhen the police arrest you, it doesn’t mean you’re guilty but rather, that they have reason to believe you were involved in the crime and are detaining you for further investigation (e.g. for questioning)The police can’t simply arrest anyone because the Federal Constitution provides that no person may be deprived of freedom unless in accordance with the law. Article 5(1) of the Federal Constitution reads:“No person shall be deprived of his life or personal liberty save in accordance with law.”Section 28A(1) of the Criminal Procedure Code requires that you are informed of the crime you are being arrested for, and you have certain rights even when under arrest.There are variations to how long the police can detain you based on what crime was committed, but you’ll be released without issue unless...You get charged - Still not guilty yetImage from viewshc.When being charged, it means that the police have gathered enough evidence to prove you committed a crime. You’ll be brought to court for a trial.Being charged means that you are being accused of a crime, which the prosecution will then have to prove. The form of a charge is laid out in Section 152 of the Criminal Procedure Code which states the specific crimes you are being accused of, and under Section 153 (in most cases), how you committed the offence. At this point, you are still NOT guilty of a crime as the prosecution needs to prove your guilt beyond a reasonable doubt, as provided in Section 173(m) of the Criminal Procedure Code.The court trial is also the point when you enter your defence. A defence is valid when your actions have fallen into the legal criteria of a crime, but the circumstances were within exceptions allowed by law.From here, it can go two ways...Conviction - Guilty!Image from PressTV.If the case against you is proven, the Court will pronounce you “guilty” and pass your sentence. In this case: you are now GUILTYIf the prosecution cannot prove the case against you beyond a reasonable doubt. The Court is required to acquit (release) you. In this case: you are NOT GUILTY.This is known in law as the “due process” which requires the hearing of both sides of the story, and that a person’s freedom is not taken away without just cause. Arrest is part of the process of conducting further investigations (and keeping others safe in case of serious crimes) to find the truth.Note: This answer is based on the legal perspective rather than individual cases. If you come across any rumours or have any general questions about how the law works, let us know on our Facebook page or send us an email."
"Here's how Malaysian trademark law protects YOU from getting conned Imagine you’ve just started your own hip mamak restaurant. Let's say you decided to name your business ""McDonald's"". Your logo, business motto, and food sold are all different from those at McDonald's. Can you still name your restaurant ""McDonald's""?Someone has actually done something similar. In 1999, a popular eatery in Jalan Ipoh called McCurry was sued by fast food giant McDonald's for trademark infringement. McDonald's claimed that McCurry should be prevented from using the prefix ""Mc"" in their name. However, after a lengthy legal battle that went all the way to the Federal Court, the final ruling was decided in favor of McCurry on grounds that McDonald's does not have a monopoly over the use of ‘Mc"". Image credit: DailyMail So no, you can’t name your business ""McDonald's"" Doing this would be an infringement of a trademark under Section 38 of the Trade Marks Act 1976, and legal action may be taken against you! The name McDonald's is owned by McDonald's franchise, therefore any unauthorized usage of their name will be a violation of the McDonald's trademark. Section 38 of the Trade Marks Act 1976 reads: (1) A registered trade mark is infringed by a person who, not being the registered proprietor of the trade mark or registered user of the trade mark using by way of permitted use, uses a mark which is identical with it or so nearly resembling it as is likely to deceive or cause confusion in the course of trade in relation to goods or services in respect of which thetrade mark is registered... But why do businesses care so much about their trademarks? What makes it more than just colours, designs, and fancy fonts? Well... Copycats like to use famous brands to mislead YOU Image credit: Marketing InteractiveRecently, AirAsia released a statement distancing themselves from a local media channel called Azeri Asia TV, whose logo and loyalty program bears a striking resemblance to AirAsia's: “We strongly advise the public to be cautious of any organisation which infringes our intellectual property rights. AirAsia shall not be held liable for any claims pertaining to the organisation."" - AirAsia's announcement, quoted from Marketing Interactive A question you might have is this: Why would anyone name their business after the name of a renowned business? One of the reasons is that they can profit off the general public's confusion between the two and can ride on the popularity of the already established brand. It's a big issue when some companies try to impersonate a well-known company with a good reputation. They look good by borrowing the other company's reputation, but also damage the other company's reputation when they make mistakes.Copycats who infringe on trademarks do so in two main ways:1. Using a trademark belonging to another.This is when you outright steal another company’s trademark, normally to pretend to be them or pretend to be connected to them. For example, you might name your business Coca-Cola, Facebook, or Petronas to ride on their credibility and brand. Another example is when you use the logo of another brand on your own product, like putting Nike's logo on your own shop's shoes. Image credit: Flickr2. Using a similar looking or sounding markThis is when a mark may identical to an existing trademark in the way it looks or in the way it is pronounced. If you use a logo that says “Auntie’s Char Kuey” written in white on a blue rectangular backdrop using a design similar to Facebook's, you might get in trouble. On the other hand, if you name your business “FesBuk” or “Koka Kola"" then legal action may also be taken against you for violating Facebook’s or Coca-Cola’s trademark. Copycats like to do this to confuse consumers that their brand might be related to another famous brand, and profit from the good reputation.Image credit: therandomdailyness.comIn 2004, Microsoft infamously took legal action against Canadian student Mike Rowe due to the fact that his website’s domain name was MikeRoweSoft.com. They claimed that MikeRoweSoft sounded too similar to Microsoft and was a violation of their trademark. Microsoft also claimed that Mike Rowe did this deliberately and what he did constitutes ""cybersquatting"" - when a person intentionally registers a domain in the name of another company, business, or public figure.The two parties eventually had an out of court settlement and Microsoft bought out the MikeRoweSoft.com domain. In return, they gave Mike Rowe an Xbox!That's a brief background, so what are trademarks and how do they work in the first place? A trademark is the visual identity of a businessImage credit: sasocreativeSo what is a trademark? The Oxford dictionary defines a trademark as:""A symbol, word, or words legally registered or established by use as representing a company or product.""In law, according to Section 10 of the Trade Marks Act 1976, trademarks include the name of an individual, company or firm, a signature, invented words, or any distinctive mark. Essentially, a trademark is any mark that people remember your business or product for. For example, Coca-Cola is known for their symbolic cursive writing of ""Coca-Cola"" in white on a red background. This is their trademark and what helps us recognize this delicious beverage, and no one else is allowed to use this mark.But having a trademark doesn't mean you own everything connected to it!Remember the case of McCurry referred to above? In that case, lawyer Sri Devi Nair said the ruling means McDonald's does not have a monopoly on the prefix ""Mc"", and that other restaurants could also use it as long as they distinguish their food from McDonald's. So you can now name your restaurant McCharKueh if you want - as long as you don’t sell the same food as McDonald's!We also note that trademarks are different from copyrights, which pertains to ownership of work that you created.[READ MORE: How can Malaysian Copyright law protect me?]There are special rules on what can become trademarks1. You can’t trademark descriptions!Section 10(1)(d) of the Trade Marks Act 1976 states that a trademark must contain: ""a word having no direct reference to the character or quality of the goods or services not being, according to its ordinary meaning, a geographical name or surname; ...""This means you can’t trademark your restaurant name if it’s called ""Delicious Char Kuey"" (it's descriptive), ""Penang Char Kuey"" (there's a geographical name), or ""Lim's Char Kuey (there's a surname).2. You can’t register just any word as your trademark!General and common words like ""sky"", ""water"", ""delicious"", and ""bottle"" are all words that you cannot register because it's a description of the product. This is specified under Section 10(2) of the Trade Marks Act 1967 which states that a registered mark must be distinguishable from the goods or services that its offering. This means that if your business is a fried chicken shop, you cannot register ""Fried Chicken"" as your trademark.But wait a minute, how did Apple register their trademark then??? It's true, you can't register ""Apple"" as your trademark if you own an apple farm. But you can do that if it's for a company or business that has nothing to do with the fruit. Naming a computer and technology company ""Apple"" is distinct and therefore can be registered. This is established in the case of Abercrombie & Fitch Co. v. Hunting World, where Abercombie & Fitch had trademarked the term “SAFARI” to describe specific types of clothing sold in their stores. The judge ruled that a descriptive word may be registered if it acquired a secondary meaning - referring to a specific type of clothing.How do you identify trademarks?There are 3 commonly used symbols, which are TM, SM, and R. Note the mark on the bottom right corner of the Apple logo. Image credit: Wikipedia TM and SM are used for unregistered trademarks. TM stands for Trade Mark and is used for marks that represent goods. SM stands for Service Marks, and is used for marks that represent services. It should be noted though, that these may slightly vary from country to country. For example, trademarks registered in the United States are marked with an ® instead of an R.In Malaysia, R is used to indicate marks that have been registered. It is illegal to use the R on an unregistered trademark. This is stated under Section 81 of the Trade Marks Act 1976 and if found guilty, you may be fined up to five hundred ringgit or punished with imprisonment not exceeding two months or worse - BOTH!!How do I register a trademark?It's actually pretty simple. You can register manually or online through MyIPO's website here (instructions and forms are on the site itself).You’ll receive these protections under trademark law:a) You may take action and sue anyone trying to steal your name. Section 38 of the Trade Marks Act 1976 of allows you to take legal action for the infringement of your registered trademark. b) No one else can register your trademark as theirs. Section 19 of the Trade Marks Act 1976 prevents anyone else from registering a trademark that is identical to yours or one that is so similar that it might cause confusion. With this, you can be sure that no one but you owns that trademark! Do note that trademarks take effect locally. This means that a trademark in Malaysia is not recognized in any other country. Yes, McDonald's is registered as a trademark in every single country they operate in. You have a priority during the first 6 months you register your trademark in other countries who have signed the Paris Convention, but if someone happened to have an identical or similar trademark before you, it won't affect their registered trademark.Trademarks are more than just a legal issue. Companies put a lot of work into building their brands and it can mean the downfall of a brand when others try to freeload on that effort by deceiving customers. If you have a business and use a trademark to make your business stand out, always register it so that if someone else tries to steal it, the law has your back!"
"How do I use the Malaysian PDPA to stop telemarketers from calling me? You’re going through your day, working on that upcoming project your boss has high hopes on you for. It’s almost noon and you’re almost finished with that little bit more before you go for your lunch break. That’s when it happens, a number you don’t recognize is calling you.You pick up and find out it’s a telemarketer trying to hard-sell you their new product. You’re puzzled that they have your number. You signed up for a credit card recently, but this telemarketer isn’t even from your bank! How did they contact you???Image from memegenerator.This is a scenario all too common for us Malaysians. While banks are allowed to use your information for their own marketing (unless you tell them not to!), some other groups may not have gotten your number through legit means. We tend to accuse our bank or telecommunication service providers of selling our information - though we’re not sure who the culprits actually are - but did you know that these companies can get into big trouble if they're found guilty of misusing your personal data?But wait, what exactly is ""Personal data""?Under the Malaysian Personal Data Protection Act 2010 (The PDPA), you’re given many rights and responsibilities to do with your personal information. As long as you are identified or identifiable, companies and individuals need your permission to use your personal data for commercial purposes.Image from buyrsmoney.It’s a bit technical because of the distinction between data that makes you “identified” and “identifiable"", but basically:Identified: any data that you specifically own, or narrows down who you are (eg. name, address, contact number, NRIC number, etc.)Identifiable: any data that is specific to you but may not tell others who you are (eg. “the branch manager of ____”, an email named wecantgivelegaladvice@asklegal.my)This is provided in Section 4 of the PDPA, which further states that any information that may identify you (such as letters and emails to/from you), sensitive personal data, and opinions about you are protected information. This does not include data collected about your credit rating by credit reporting agencies though.Section 4 of the PDPA 2010 - Interpretation - “personal data” (in part)“relates directly or indirectly to a data subject, who is identified or identifiable from that information or from that and other information in the possession of a data user, including any sensitive personal data and expression of opinion about the data subject;”Opinions about you include facts and particulars like “he injured his foot last week”, or “she earns RM400,000 per year”. When it comes to sensitive personal data, it’s defined in Section 4 yet again:“sensitive personal data” means any personal data consisting of information as to the physical or mental health or condition of a data subject, his political opinions, his religious beliefs or other beliefs of a similar nature, the commission or alleged commission by him of any offence or any other personal data as the Minister may determine by order published in the Gazette;”Sensitive information cannot be used without your consent in writing. There are exceptions for employment, medical use, and legal administration where sensitive information may be required under Section 40(1)(b). We’d list them here but it’s a LONG list. Companies have 7 responsibilities with your personal dataYou may be familiar with notices Malaysian companies sent you like this one from Touch N Go. The PDPA imposes 7 principles that Malaysian companies holding your personal data are responsible for. These are provided in Sections 6 through 12 of the Act. Image from Touch N Go.I) General PrincipleAs mentioned before, your consent is needed to use your personal data. There are a few exceptions which include to supply goods and services to you (like delivering items to your address), to protect your interests, or when required by law enforcement.II) Notice and Choice PrincipleThe company given your personal data must inform you of: What data they have about you What they’re using it for Where they got it from That you have a right to access and correct your personal data How to file questions or complaints about your data with them What third parties they will disclose your data to (such as their subsidiary company) Limits you can place on your data’s usage (e.g. they can use it to contact you but not for marketing) Whether you must give them your data and why III) Disclosure PrincipleThis is pretty straightforward. Companies may not use your personal data for anything, or share with any third party that they have not told you about.IV) Security PrincipleCompanies must take reasonable security measures and practices to ensure your personal data is safe and is not misused, including by their own employees. What’s reasonable depends on the situation; for example, credit card numbers and NRIC numbers must be given higher protection.V) Retention PrincipleCompanies must not keep your personal data for longer than necessary. For instance, if you’re no longer their customer and the records are not required for anything else, your data must be disposed of.VI) Data Integrity PrincipleIt’s a company’s duty to make sure they keep your personal data updated and accurate. You may recall staff from your service providers asking if your contact details have changed each time you visit. This is not to annoy you but rather to fulfill their legal duty!VII) Access PrincipleCompanies are required to give you the ability to access and update your personal data. It’s a freedom and convenience to update your information as you need.What to do if your data is misusedYou may be in 1 of the 3 scenarios below:1. You don’t want your data being used for direct marketing.2. Your data has been used by someone you didn’t give permission to.3. The company did not fulfill one or more of the 7 responsibilities.In the first case, you’ll first want to inform the company to not use your information for direct marketing under Section 43(1) of the PDPA. Companies usually have an option for you to not be contacted for direct marketing in the contract you signed, which you may or may not have noticed. You can always opt out of their direct marketing later if you did not at first. In the case of online newsletters, there will be an option in the newsletter itself (probably in small print at the bottom) that allows you to unsubscribe.Here's an example of where to find the ""unsubscribe"" button in an email.If a company continues to contact you for direct marketing, read on.In all of the above situations, you may contact the Personal Data Protection Commissioner by sending a report at their website, or by email. Be as specific as you can and attach any files or pictures you may have to help their investigation. There are various offences that a company can be convicted of (yes, companies can commit crimes) for which the people responsible can be jailed and the company fined several hundred thousand ringgit, depending on the offence.Also, if you know that one or more individuals got your contact information without your permission, get their particulars and report them to the PDP Commissioner. If they are found guilty of buying your details from an insider, each of them including the insider will be liable to fines and jail terms.You may also contact your lawyer to seek remedy through the courts especially if you have suffered financial loss. Please note that each case is unique and you should consult your lawyer for more information."
"5 Fakta tentang Perjanjian Malaysia 1963 (MA63) yang anda mungkin tidak tahu [Artikel asal ditulis dalam Bahasa Inggeris. Click here for English version] Sejurus setelah pengenalan cukai pelancongan oleh Kerajaan Persekutuan yang berkuatkuasa mulai bulan Julai, kerajaan negeri Sarawak serta-merta menarik pembabitan wakilnya dalam Lembaga Pelancongan Malaysia . Tindakan ini dipercayai akibat daripada permintaan Sarawak untuk menangguh pelaksanaan cukai pelancongan tersebut ditolak. Apa yang lebih menarik adalah, Datuk Abdul Karim Rahman Hamzah, Menteri Pelancongan Negeri Sarawak, menyebut mengenai Perjanjian Malaysia dalam hal itu: Jika mereka tidak mahu untuk menunda di Semenanjung, itu terpulang mereka. Tetapi sekurang-kurangnya tundalah di Sabah dan Sarawak … Hormatilah Perjanijian Malaysia 1963. Dan seperkara lagi – kerajaan negeri haruslah ada hak untuk bersuara dalam hal tersebut; kemungkinan kerajaan negeri mahu sebahagian daripada cukai itu dikembalikan.” – Datuk Abdul Karim Rahman Hamzah, dipetik dari The Malay Mail Online, diterjemah oleh ASKLEGAL. Baru-baru ini, Ketua Menteri Sarawak sekarang, Abang Johari Openg, mengumumkan tentang penghantaran sekumpulan peguam ke London untuk mengkaji selidik intisari dari Perjanjian Malaysia: ""Perjanjian ini bukan sekadar hanya suatu perjanjian; kita harus mendapatkan fakta yang betul jika mahu membuat tuntutan, kita juga harus mejalankan kerja kita, jika tidak kita tidak akan mencapai sasaran yang diinginkan.” – Abang Johari Openg, dipetik dari Malaysiakini, diterjemah oleh ASKLEGAL. Jadi…ada apa dengan Perjanjian Malaysia? Sepertimana yang kita sedia maklum, Malaysia dibentuk dari Persekutuan Tanah Melayu pada 31 Ogos 1957 di bawah Perjanjian Persekutuan Tanah Melayu: Artikel 3, Perjanjian Kemerdekaan Persekutuan Tanah Melayu (diterjemah): “Bermula dari Tiga Puluh Satu Ogos, 1957, negeri-negeri dan penempatan tanah melayu akan bersatu dan membentuk Persekutuan baru yang dinamakan…Persekutuan Tanah Melayu…” Ini tidak termasuk Sabah dan Sarawak. Kemasukan Sabah dan Sarawak adalah setelah satu lagi perjanjian termeterai yang menyatukan Sabah, Sarawak dan, untuk seketika, Singapura dan Persekutuan Tanah Melayu yang membentuk Persekutuan Malaysia pada hari ini. Perjanjian tersebut adalah Perjanjian Malaysia 1963 (MA63), di mana di sinilah terciptanya terma dan syarat penyatuan tiga negeri itu menjadi Negara Malaysia: Artikel 1, Perjanjian Malaysia 1963 (diterjemah): “Borneo Utara dan Sarawak dan negara Singapura akan digabungkan dengan negeri-negeri yang sedia ada dalam Persekutuan Tanah Melayu membentuk suatu kesatuan yang dinamakan Malaysia berikutan dari perjanijian yang termeterai” Selain menjadi pokok perbicaraan tentang kuasa autonomi Malaysia Timur dan (sekarang) isu cukai pelancongan, MA63 adalah suatu dokumen yang menarik. Contohnya, adakah anda tahu bahawa… 1. MA63 merupakan perjanjian antarabangsa Ketibaan Para Penandatangan Perjanjian Malaysia di London pada bulan Julai 1963. Imej dari The Borneo Post. Perjanjian Malaysia adalah suatu perjanjian antarabangsa, berdaftar di dalam Pertubuhan Bangsa-Bangsa Bersatu pada 21 September 1970, dengan nombor pendaftaran 10760. Dengan itu, Parlimen Malaysia tidak mempunyai kuasa untuk meminda MA63 memandangkan ia merupakan perjanjian antarabangsa. Parlimen Malaysia hanya boleh meluluskan undang-undang baru sahaja. Sebagai contoh, Parlimen meluluskan Akta Malaysia 1963 untuk memberi kesan (Legal effect) kepada Akta tersebut. Beberapa bahagian dalam Perlembagaan Malaysia juga diubah untuk menggabungkan terma-terma MA63 pada waktu Malaysia ditubuhkan. Perlembagaan Persekutuan dikatakan telah dipinda lebih dari 700 kali sejak tahun 1957, tetapi terma-terma yang terkandung di dalam MA63 kekal tidak berubah dari tarikh ia ditandatangani. 2. Berlainan dengan Undang-undang Malaysia, MA63 tidak boleh dipinda Terma-terma di dalam MA63 hanya boleh dipinda melalui perbincangan dan persetujuan para penandatangan perjanijian tersebut. Ini disebabkan oleh ia adalah suatu perjanijian antarabangsa, bukan suatu rang undang-undang yang diluluskan oleh Parlimen sebagaimana yang disebut sebelumnya, Parlimen tidak moleh menggubal perjanijan antarabangsa. Dengan kata lain, Sabah, Sarawak, Kerajaan Persekutuan dan United Kingdom harus duduk berbincang untuk menggubal atau meminda terma-terma yang terkandung di dalam perjanjian. Berlainan dengan Perlembagaan Persekutuan yang boleh dipinda oleh Parlimen, MA63 dan Laporan IGC tidak boleh digubal oleh sesiapa melainkan tuan empunya daerah berkenaan yang mula-mula menandatangani perjanjian itu memutuskan untuk berunding semula membuat pemindaan. – Zainal Ajamain, pengarang & pejuang hak negeri Sabah, dipetik dari The Malay Mail Online, diterjemah oleh ASKLEGAL 3. Sabah dan Sarawak berkuasa melaksanakan MA63 dengan sendirinya Tan Sri Adenan Satem. Imej oleh Norman Goh dari Malaysiakini. Artikel 8 dalam MA63 menyatakan bahawa Sabah dan Sarawak boleh bertindak sendiri untuk menguatkuasa dan melaksanakan MA63 tanpa membuat pindaan ke atas Perlembagaan Persekutuan. Artikel 8, Perjanjian Malaysia 1963 (diterjemah): Kerajaan Persekutuan Malaya, Borneo Utara dan Sarawak akan mengambil langkah-langkah perundangan, eksekutif dan yang berkaitan untuk melaksanakan jaminan-jaminan, daya usaha, perakuan…memandangkan semua itu tidak terkandung di bawah Perlembagaan Malaysia Dalam bulan November 2016 yang lalu, waktu itu Ketua Menteri Datuk Patinggi Tan Sri Adenan mengadakan gerakan untuk menuntut semula hak Sarawak di bawah MA63 dalam perhimpunan negeri tetapi tertahan di saat-saat akhir. Sekiranya gerakan berikut dilanjutkan, boleh dikatakan kerajaan negeri Sarawak menggunakan haknya sebagaimana yang disebut dalam Artikel 8 MA63. Sebaliknya, kerajaan negeri memilih pendekatan diplomatik dengan kerajaan persekutuan dalam menyelesaikan isu berkenaan hak yang tidak terpenuhi di bawah MA63. 4. Sabah dan Sarawak mempunyai kuasa autonomi dalam membuat keputusan disebabkan MA63 Sabah dan Sarawak menyertai bumi Malaya dalam membentuk Malaysia di bawah pemahaman di mana akan terdapat jaminan dari Perlembagaan Persekutuan berkenaan perlindungan hak dan keistimewaan. Jaminan-jaminan ini telah terkandung di dalam Perlembagaan dan undang-undang yang berkaitan. Antaranya: Peguam-peguam yang bukan dari Sabah dan Sarawak tidak dibenarkan untuk mengamal di mahkamah Sabah dan Sarawak (Artikel 161B). Peguam-peguam ini harus memperolehi lesen dari Mahkamah Tinggi Sabah dan Sarawak terlebih dahulu, dan seterusnya memohon permit kerja dari Bahagian Imigresen. Sabah dan Sarawak berhak menggunakan bahasa Inggeris dalam perhimpunan negeri dan semasa dalam perbicaraan mahkamah [Artikel 161(1) dan (2)]. Artikel 161(1) melarang sama sekali undang-undang yang tidak membenarkan Sarawak menggunakan bahasa Inggeris untuk urusan-urusan rasmi sehingga selepas 10 tahun dari tarikh 16 September 1963. Sehingga kini, Akta Bahasa Kebangsaan 1963/1967 masih belum dikuatkuasa di Sarawak. Ini bermakna penggunaan Bahasa Malaysia tidak mandatori di jabatan-jabatan kerajaan dan kementerian negeri. Seksyen 1(2), Akta Bahasa Kebangsaan (diterjemah): Akta ini hendaklah mula berkuat kuasa di Negeri-Negeri Sabah dan Sarawak pada tarikh-tarikh yang ditetapkan oleh Pihak-Pihak Berkuasa Negeri masing-masing, melalui enakmen Badan Perundangan Negeri masing-masing dan tarikh-tarikh yang berlainan boleh ditetapkan bagi mula berkuat kuasanya peruntukan-peruntukan yang berlainan dalam Akta ini di Negeri-Negeri itu 5. Sarawak dan Sabah mempunyai undang-undang sendiri berkaitan hal imgresen Kaunter imigresen di Kota Kinabalu. Imej dari FamousChris Sarawak dan Sabah berkuasa mengawal hal-hal imigresen ke negeri masing-masing. Penduduk di Semenanjung harus mempunyai permit untuk belajar atau bekerja di sana. Dan sesiapa yang melawat Sarawak dan Sabah harus mengisi borang imigresen terlebih dahulu. Ini disebut di dalam Seksyen 66 Akta Imigresen 1959/1963, dan terkandung disebabkan MA63. Seksyen 66(1) Akta Imigresen 1959/1963 (sebahagian): “… seorang warganegara itu tidak dibenarkan untuk memasuki Malaysia Timur tanpa mempunyai permit atau pas melainkan- (a) dia adalah memang dari Malaysia timur…” Pembatasan ini dilaksanakan adalah sebagai usaha untuk mengehadkan kemasukan kepada sesiapa yang hanya boleh menyumbang untuk (salah satu) negeri tersebut, dan juga sebagai langkah berjaga-jaga dari segi keselamatan."
"These 5 laws from Malaysia's new Animal Welfare Act will make life better for animals [This article discusses specific sections of the new law. For the legal background, click here for a separate article] Back in 2015, the Malaysian Animal Welfare Act 2015 was passed in Parliament, but had yet to take legal effect. Now, on 18th July 2017, it will (finally) come into force, which marks progress for animal welfare in Malaysia. Some animal welfare groups are celebrating the new Act, and await a better Malaysia for the animals they care for.The Act tightens regulations on activities involving animals, and there’s a new Animal Welfare Board set up to enforce the Act. This Board has a long list of functions, including promoting awareness on animal welfare and advising the relevant Ministers on matters pertaining to animal welfare in the country.As a quick background, the Act does not replace the old Animal Act 1953 (amendments as of 2013 here); rather, the new Act expands on the welfare of animals in greater scope. We wrote a separate article covering these laws in greater detail here:[READ MORE: The development of animal welfare laws in Malaysia]As pet owners, animal-related business owners, and ordinary citizens: here’s the most important changes you should know and prepare for.1. There is a new licensing system for animal-related businessesImage from Humane Society CC.Under the new Act, all individuals and businesses who handle animals for a living need to apply for a license from the Animal Welfare Board. This does not apply to pet owners, but applies to businesses like pet hotels, pet shops, animal shelters, and more of the like.The license will be granted subject to requirements and rules that will be set by the Board. The penalty for not having a license ranges from RM15,000 to RM75,000, so please mark it in your calendar or to-do list!Once you get your license, you’ll both need to keep a copy displayed at your operation premises and carry a copy around when bringing any animals out. Think of the license as your animals’ IC.Section 20 of the Animal Welfare Act 2015 - Display of licence (in part)""(1) A licensee shall display his licence at a conspicuous place at his premises. (2) Notwithstanding subsection (1), a licensee is not required to cause a copy of the licence to be displayed if he carries on the activities outside the premises but the licensee shall ensure that he or the person in charge of the activity has a copy of the licence with him."" 2. New responsibilities for pet owners and license holdersPet owners (especially dogs) already have certain responsibilities under the old Animal Act 1953. Now for both pet owners and license holders, you will be required to take care of each of your animals’ needs as required by Section 24 of the Animal Welfare Act. (1) The owner or a licensee shall have the duty to— (a) take reasonable steps to ensure that the needs of an animal are fulfilled, which includes— (i) its need for a suitable environment; (ii) its need for a suitable diet; (iii) the need for it to be able to exhibit its normal behavior patterns; (iv) the need for it to be housed with or apart from other animals; and (v) the need for it to be protected from pain, suffering, injury and disease;Pet owners found guilty of any offence under the Act can have their pets taken away, and be barred from handling animals for up to 1 year; license holders on the other hand may be barred from holding a license for up to 5 years as well as be barred from owning personal pets for up to 1 year.3. Animal testing is strictly regulatedRAAAATSS! Image from AboveAverage.Animal testing has always been a difficult topic to discuss. Despite the many great products and life-saving vaccines it has given us, most people frown upon it for the amount of pain and suffering it causes, even those who see it as a little evil for a greater good. There’s good news in the new Animal Welfare Act for all of us who want to see better treatment for animals.All research, testing, and teaching using animals must be done with a license or performed by schools or universities only. In addition to the duties from point number 2 imposed by the license, the animals must be well taken care of. Even where pain or suffering cannot be avoided, it must be minimized or the testers will face consequences. Section 26 explains that:(1) No person shall use animals in research, testing or teaching unless— (a) all reasonable steps are taken to ensure that the physical, health, and behavioral needs of those animals are in accordance with this Act and the subsidiary legislation as may be prescribed by the Minister; (b) the animals shall receive, where practicable, treatment that alleviates any unreasonable or unnecessary pain or distress when the animals are ill or injured; or (c) any degree of pain or distress is reduced to the minimum possible in the circumstances where the nature of the research, testing, or teaching cannot comply with paragraph (a) or (b).Offenders will be liable to a fine of between RM20,000 to RM100,000 and/or be jailed for 3 years. 4. Officers don't need a warrant to search your house for evidence of abuseUnder Section 40 of the new Act, an animal welfare officer may search and seize your premises without a warrant to gather evidence of animal abuse. They normally require a warrant under Section 56 of the Criminal Procedure Code, but they can bypass this if they think there's a chance evidence will be tampered with, removed, damaged, or destroyed while waiting for a warrant to be issued. The animal welfare officers that are empowered to do so are each given an authority card. Whether or not they have a warrant, it is fully within your right to demand the officer to produce the card, else he will not be allowed to search and seize your premises. This is provided for under Section 38(2) which states that:""Whenever an animal welfare officer exercises any of the powers under this Act or any subsidiary legislation made under this Act, he shall, on demand, produce to the person against whom the power is being exercised, the authority card issued to him under subsection (1).""5. Harsher punishments for animal cruelty, and more humane ways to cull animalsImage from PuppeycideDB.The definition of “animal cruelty” in Malaysian law has expanded in scope from the original 7 in Section 44(1) of the Animals Act 1953 to 21 items listed in Section 29 of the Animal Welfare Act 2015. This includes mutilation, neglect, use of cruel equipment, shooting for sport, and animal fights. Offenders under this Section are liable to between RM20,000 and RM100,000 in fines and/or 3 years of imprisonment. However, there are 3 exceptions to this: a) Where the act is an accepted veterinary management practice; b) Where the act involves pest control or disease control; c) Where animals are being fed to another animal within natural eating habits (e.g. feeding live mice to snakes)The putting down of animals has also been regulated by the new law. In the past, you may have heard of or had bad experiences with local authorities putting down wild or stray animals using cruel methods. Under Section 30 of the new 2015 Act, no animal may be killed by gun unless it’s authorized by the veterinary authority in an emergency, or for disease control. Putting down a terminally ill or suffering animal must also be certified by the veterinary authority or by a registered veterinary surgeon, unless the matter cannot wait (like if the animal is injured beyond recovery in an accident).Animal welfare is now a priority in Malaysian law!In the past, enforcement has been weak, and penalties for abuse were ridiculously low amounts, the fine for animal cruelty in the Animal Act 1953 the being as low as RM200. It was subsequently increased to up to RM50,000 with the Animal (Amendment) Act 2013, but let’s be fair with the authorities - RM200 was a lot of money back in 1953. The step up in fines to up to RM100,000 shows a step up in the attitude the law is taking towards animal abuse.Keep on being responsible and look out for other animals around you. As always, you can call 999 to report an incident of animal abuse near you. The law is just words on a piece of paper without the people to enforce it; and it’s more than just the Animal Welfare Boards’ responsibility to do so.If you're curious as to how this law will apply to killing mosquitoes or slaughtering an animal for food, give our article about the Animal Act 1953 a read!"
"Animal abusers can get in BIG trouble under Malaysia's animal welfare laws [Note: Article was originally written in July 2017.] Animal cruelty is nothing new in Malaysia, and it happens even more frequently in recent years - arguably due to the rise of social media which brings numerous animal cruelty cases to light. Recently, an ex-teacher was brought to court for paralysing a cat by throwing a metal rod at it. However, many Malaysians are unaware for a matter of fact (and of law) that animals actually DO have rights! And this general lack of awareness is one of the main reasons why animal cruelty happens, or go unreported. Animal rights are found in a legislation called Animals Act 1953 (Ac 647). This law extends even to strays, as even the local authorities have to follow guidelines issued by Department of Veterinary Services in exterminating stray animals. As an example of the legal coverage given to animals, a woman was found guilty of causing pain and suffering to her pet dog. She tied her dog too tightly with a steel chain, and that caused a cut mark on the dog’s neck. She was charged under section 44(1)(d) of the Animals Act 1953: “...wantonly or unreasonably...causes any unnecessary pain or suffering, or, being the owner, permits any unnecessary pain or suffering to any animal.” She was fined RM 2,000 in default (instead of) of three months’ jail, and was ordered by the court to pay Veterinary Service Department RM6,415 as treatment cost. Unfortunately, the Animal Act is a very old law... Animal Act 1953 is an old law, but it is still in force and the punishments under this 1953 Act used to be quite low. Section 44(1) from (a) to (g) of the 1953 Act provides for a list of situations where you may be punished for causing cruelty to animals, covering situations such as beating, ill-treating or torturing. Under Section 44: “44. (1) Any person who...(a) cruelly beats, kicks, ill-treats, overrides, overdrives, overloads, tortures, infuriates or terrifies any animal...shall be guilty of an offence of cruelty” If you breach any one these laws, the punishment used to be a fine of RM200 or imprisonment of 6 months or both. Section 45 and 46 of the 1953 Act allows the law to be enforced effectively; any police officer, Department of Veterinary Services, or Town Council or Municipal Officers may arrest you immediately if he or she sees you committing any offence under section 44. For example: Section 45 (1) of the Animals Act 1953 - Power of veterinary authorities and police officers (in part): ""Any veterinary authority and any police officer may arrest without warrant any person whom he sees committing any offence under section 44..."" If a DBKL or MBPJ officer sees you beating or kicking a stray dog, he has the power to arrest you without a warrant. So, if you think DBKL officers can only give you summons, then you may be in for a surprise. In 2013, the Animal (Amendment) Act 2013 enhanced the 1953 Act in terms of punishments ever since animal cruelty became quite a concern in Malaysia. After the 2013 amendment, the new punishment is a maximum fine of RM 50,000 or imprisonment of 1 year or both. But that's not the end of it, because... Now there's a NEWER law - The Animal Welfare Act 2015 Image from Ecorazzi. Animal Welfare Act 2015 is the latest law providing for comprehensive animal rights, aiming to prevent trauma, pain or suffering of animals. This 2015 Act has been gazetted quite some time ago, on December 29, 2015. Usually, the law is enforceable only when it is gazetted (i.e. published in an official government notice). Section 1(3) of the 2015 Act says: ""This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette."" Since the date of coming into force was not stipulated in the Gazette, this 2015 Act was not enforceable immediately. The good news is, this 2015 Act is going to be enforced from July 18, 2017! What changes does the Animal Welfare Act bring? Image from Pet Health Network. While the 2015 Act is the latest law protecting animal rights, it does not repeal and replace the 1953 Act. Rather, the 2015 Act is the law that further complements the 1953 Act. Let's look at some differences between these two laws. The 1953 Act merely grants powers to the relevant officers and lists the relevant offences. One significant progress achieved through the 2015 Act is that the new law establishes a new Animal Welfare Board. This Board has a long list of functions, including promoting awareness on animal welfare and advising the relevant Ministers on matters pertaining to animal welfare in the country. Under the 1953 Act, relevant officers cannot simply enter into private premises for any investigation purposes; however, under the 2015 Act, the animal welfare officers may seize your premise without a warrant for the purpose of gathering evidence on animal abuse and cruelty by pet owners. If you suspect the person entering your house is not an animal welfare officer, please demand from him the authority card issued to him. You have the right to do that! As stated in section 38(2) of the 2015 Act: ""Whenever an animal welfare officer exercises any of the powers under this Act or any subsidiary legislation made under this Act, he shall, on demand, produce to the person against whom the power is being exercised, the authority card issued to him under subsection (1)."" If you are a pet owner, we want you to take note of section 33(1) of the 2015 Act. This section says that it is an offence if you neglect your pet and its welfare is deprived. And if you are found guilty under this offence, the court will give you an option to pay fine in replacement of imprisonment. Therefore, if you are willing to pay a sum of money to avoid imprisonment (and if you can afford it), then the court will not put you behind bars. The new Act also changes how the municipal authorities process stray animals but, in the interest of space, we're covering how these new laws may affect you as a pet owner or if you run an animal-related business in a separate article: [READ MORE: These 5 laws from Malaysia's new Animal Welfare Act will make life better for animals] Is killing a mosquito animal cruelty? What about slaughtering a chicken for food? When we talk about animal cruelty, you might want to know whether “animal” includes mosquitoes and cockroaches. Generally, the law says no, and it is found in section 2 of the 1953 Act: Section 2 of the Animals Act 1953 - Interpretation (in part): "" “animal” includes horses, cattle, sheep, goats, swine, dogs, cats and any four-footed beast kept in captivity or under control, of any age or sex..."" However, when it comes to prevention of animal cruelty, a separate definition is provided in section 43 of the 1953 Act: “animal” means any living creature other than a human being and includes any beast, bird, fish, reptile or insect, whether wild or tame."" So, technically, you cannot torture a cockroach because it is an insect! But not to worry. Killing a mosquito, a cockroach, or an ant accidentally or even intentionally because they are harmful or dirty does not fall within the context of animal cruelty. As for slaughtering animals for food, certainly ""four-footed beasts"" would include cows and goats, and we do slaughter these animals for food. Would that amount to animal cruelty? The law says no, and 1953 Acts actually accommodates for these situations. Section 44(3) of the 1953 Act says: “Nothing in this section shall apply to the commission or omission of any act in the course of the destruction, or the preparation for destruction, of any animal as food for mankind, unless such destruction or such preparation was accompanied by the infliction of unnecessary suffering.” So, if you want to slaughter any cows, goats, chicken for food, go ahead! But in doing so, please do not inflict unnecessary injuries on the animals for fun or otherwise. If you witness animals being mistreated - Call 999 So, next time when you witness someone torturing animals or causing any form of animal cruelty, you can be an informer by dialing 999 and call the police! That is the easiest way, or you can also complain to the Department of Veterinary Services or non-governmental organizations such as Society for the Prevention of Cruelty to Animals (SPCA) at 42565312 for emergencies, and this link for non-emergencies. While many of you will be undoubtedly doing this out of kindness, it's interesting to note that the law provides an incentive being an informer. Section 50 of the 1953 Act says: “The Court by which any fine is imposed under this Part of this Act may award any portion not being more than half to the informer.” So for any reason, be it a love for animals or rewards, there should be no hesitation in calling in reports and ending animal cruelty."
"5 Things you didn’t know could get you in trouble with the Malaysian traffic police In April 2014, The Star Online reported that Malaysia ranked third highest in the world in terms of car ownership percentage, clocking in at a rate of 93%. Naturally, this massive amount of car ownership, when coupled with the tremendous amount of traffic on Malaysian roads everyday, warrants the creation and enforcement of an elaborate host of traffic laws and rules.Many of us are aware of a good deal of these laws. For example, if you happen to be reading this while driving or while stuck in traffic, you know you're doing something illegal.However, not all of them receive time in the spotlight – such as the 5 laws stated below, which you may very well be overlooking on a daily basis!1. Not carrying your car’s certificate of insurance with you Oh, yes. It is a perfectly well-known fact that you must carry your driver’s licence with you at all times when on the road.Did you know, however, that you should also have your vehicle’s certificate of insurance within reach while driving? This law is contained in Section 58 of the Road Transport Act 1987, and is illustrated as follows:Section 58(1) of the Road Transport Act 1987 - Duty to produce driving licence and certificate of insurance:“Any person in charge of a motor vehicle on a road shall, on being so required by any police officer, any traffic warden or any road transport officer, produce the certificate of insurance issued in respect of the vehicle under section 90:”Section 58(3) further goes on to explain that:“If any person fails to comply with this section, he shall be guilty of an offence.”Not sure if you can find your certificate of insurance in time to carry it with you during your drive to work tomorrow morning?Finding your certificate of insurance on a desk like this is certainly not the stuff of sweet dreams. (Image Credit: World Of Buzz)Fret not. The same section also makes an allowance of sorts for owners and drivers, stating that if you are unable to produce this document on the spot, there is a grace period of 5 days that is given to you to produce it at a police station that is to be specified by you when the request is first made. This is elaborated specifically in Section 58(1) of the Road Transport Act 1987:“Provided that no person shall be convicted of an offence against this section by reason only of his failure to produce the certificate of insurance if, within five days after being so required, he produces it at such police station as may be specified by him at the time of such requirement.” 2. Driving with large objects or children on your lapIf you’re a person who prefers carrying your bag in your lap while you drive, or worse still, are fond of allowing your children to sit on your lap while you steer a vehicle, you may want to get rid of these habits soon.They are both incredibly dangerous – and incredibly illegal.This is expanded upon in the Road Transport Act 1987, through the following section:Section 47 of the Road Transport Act 1987 - Riding on running boards and obstruction of driver“If any person driving or in charge of a motor vehicle causes or permits any person to be carried on the running board, or otherwise than within the body of the vehicle, or causes or permits any person to stand or to sit, or anything to be placed or to be carried, in a motor vehicle in such a manner or in such a position as to hamper the driver in his control of the vehicle, or as to cause danger to other persons using the road, he shall be guilty of an offence.”It’s easy to see why this law is in place. When driving, our legs and bodies should be free and not weighed down by anything with substantial weight or size. This allows for quick reactions, especially in sudden circumstances – like hitting your brakes to avoid crashing into a car that suddenly swerves into your path on a road.3. Not wearing your seat-belt when sitting in a rear seatWearing your seat-belt while sitting in the rear seats of a vehicle may seem like a tedious challenge to your freedom and backseat adventures, but – surprise, surprise – it is legally required. This may be a fairly familiar law to some, but we certainly don't see the harm in providing a friendly reminder!Buckle up in the rear seat, and that smile will come easily and safely. (Image Credit: Paul Tan’s Automotive News)In 2009, the installation of rear safety seat-belts in vehicles was made compulsory through an amendment to the original Motor Vehicles (Safety Seat-Belts) Rules 1978, highlighting the following:Section 4A of the Motor Vehicles (Safety Seat-Belts) (Amendment) Rules 2008:“Subject to rule 7, every person in the rear seat of a motor vehicle to which rule 2A applies shall wear a safety seat-belt in the manner required by its nature and construction from 1 January 2009.”If you are wondering what rule 2A is in this context, it refers to the rules stated below from the same act:“(1) Subject to rule 6, every rear seat of a motor vehicle shall be fitted with a safety seat-belt with three built-in anchorage points located in the best position for such fitting.""""(2) Paragraph (1) shall apply to a motor vehicle registered on or after 1 January 1995.”Both sections combine to tell us that it is not only compulsory to install rear safety seat-belts in your car if you car was registered from 1 January 1995 onwards, but also to fasten the said seat-belts when sitting in the seats in question. According to this set of rules and Jabatan Pengangkutan Jalan (JPJ), drivers of cars will be fined if they have no rear safety seat-belts installed, and if a passenger who is sitting in a rear seat does not use his or her seat-belt, he or she will be fined instead. 4. Not declaring your change of addressAmidst all the excitement that comes with moving to a brand new home, please do not forget to inform the traffic authorities of any changes to the address that is connected to your vehicle ownership and driver’s licence.Failure to do so within a period of two months from the time of that change could get you into a great deal of hot soup, as emphasized in the following section of the Road Transport Act 1987:Section 58A(1) of the Road Transport Act 1987 - Change of address:“Every registered owner of a motor vehicle or holder of a driving licence who changes his address in Malaysia shall, within two months of such change, serve on the Director a written notice of the change of address.”This change can be done through your local post office, or by visiting the JPJ branch that is nearest to you.There is no wriggling your way out of getting caught for having an outdated address either. This is outlined in Section 58A(5) of the Road Transport Act 1987:Section 58A(5) of the Road Transport Act 1987 - Change of address:“Any person who contravenes subsection (1) or provides an incomplete or inaccurate address shall be guilty of an offence.”The best course of action? As soon as you have moved into a new establishment or home, make registering your new address with the traffic authorities as much of a priority as sorting out your electricity and WiFi supplies.5. Installing flashing lights on your carSeeing your name in flashing lights can be wonderfully blissful experience. Having flashing lights installed on your car? Not so much.Just remember that your car isn't a disco ball. (GIF Credit: GIPHY | https://giphy.com)The Road Transport Act 1987 explains that when modifications are made to a car, they must be of a legal nature. In the event that they aren’t, they may be called in for inspection and review before further action is taken against the offender:Section 12(1) of the Road Transport Act 1987 - Inspection of motor vehicles and information to Director General:“The Director General or a Director may at any time before registration of a motor vehicle require the motor vehicle to be brought to any convenient place specified by him and to be inspected and, if necessary, to be weighed and measured and after registration may at any time require a motor vehicle to be brought as aforesaid if he has reason to believe—(d) that the weight, dimensions, character, construction, colour, identifying particulars or seating accomodation have been altered after the registration thereof.”In line with this, the JPJ website states that installing any form of flashing lights on your vehicle – aside from those used for turning signals – is an illegal modification, and will be considered an offence:""Prohibited modifications to vehicles include:-5. Flashing lights installation on the vehicle's front and rear (except for turn lights and warning light).""As such, it’s perfectly fine to want to change bits and pieces of your personal chariot with the aim of making it unique to you. Just remember not to break any rules - or be too flashy, in this case!Am I breaking more laws that I am unaware of?A recommended way for you to familiarise yourself with the rules and laws that govern car ownership and driving in Malaysia is to check JPJ’s website regularly, as well as paying attention to updates in the news about developments in these areas. After all, laws are revised on a fairly frequent basis, and traffic laws are no exception, as they must be relevant to the society of today.Plus, ignorance isn't seen as an excuse in the eyes of the law. So, just remember that safety comes first – and when it comes to traffic laws, knowledge certainly gives you the power to stay safe and out of trouble!"
"5 Malaysian marriage laws you (probably) didn't know about Marriage seems straightforward. In civil law, minus the ceremony of your religion or custom, all you need in law is a valid registration with the Registrar of Marriages and adhere to the requirements in the Law Reform (Marriage and Divorce) Act 1976.Marriage is a legal contract, with its own particulars, rights and responsibilities attached. In olden times, marriage was a union mainly for economic purposes; having security for each other, the children, and inheritance. Being married to someone you love? That was a bonus.Terms and conditions apply. Image from freewordtemplates.netIn modern times, whatever your view on marriage, it still protects those economic purposes through the law. One of these being inheritance laws which protect parents, spouses, and children when a family member dies. Some other protections have since been developed in the law, many of them not widely known. AskLegal went digging and found some interesting civil marriage laws which you'll probably never use, outside very specific situations. (Only for Non-Muslims, Muslims have a separate set of laws they follow!)1. In court, adultery must be proven beyond reasonable doubtAdultery is one of the legal grounds for a person to apply for divorce, but the applying partner must prove it beyond reasonable doubt. It’s such a big deal because this level of proof is usually only required in criminal law. ""Beyond reasonable doubt"" means that enough evidence must exist so that a normal reasonable person would be convinced that a person is guilty. In Malaysian terms, if you asked ""sure or not?"", a person convinced beyond reasonable doubt would answer ""sure lah!"" It was remarked in Bastable v Bastable [1968] 3 ALL ER 701 (704) by Lord Justice Willmer that:“True, it is not a criminal offence; … Whatever the popular view may be, it remains true to say that in the eyes of the law the commission of adultery is serious matrimonial offence. It follows, in my view, that a high standard of proof is required…”To prove adultery in Malaysia, the offending spouse must be proven to have had penetrative sex with another person. In the case of Shanmugam v Pitchamany & Anor [1976] 2 MLJ 222, Malaysian law requires the standard of “beyond reasonable doubt”, but this doesn’t mean you actually need to stalk your unfaithful lover and catch them on camera in the act. The judge explained that because adulterers are rarely caught in the act, there just needs to be sufficient circumstantial evidence to infer that adultery has taken place. 2. A marriage can be cancelled by one partner if the couple doesn’t have sexImage from TheAsianParent.In marriage law, there’s a concept of “voidable marriage”. These are marriages that can be “avoided” in law if one partner wishes it, but otherwise can continue without incident. According to Section 70 of the Law Reform (Marriage and Divorce) Act 1976, your marriage is voidable if:1. Your partner is unable to have intercourse with you after marriage (consummation)2. One of you has refused to consummate the marriage3. One of you was forced into the marriage or your consent to marry was not properly given4. One of you had a mental disorder when you got married5. One of you had a sexually transmitted disease when you got married6. The woman was pregnant with another man’s child when you got marriedRefusal to consummate a marriage is not strictly restricted to not having sex. It has been used because a husband was deliberately avoiding the customary wedding ceremony after registering their marriage. In Tan Siew Choon v Tan Kai Ho [1973] 2 MLJ 9, the couple agreed that there would be a Chinese customary wedding ceremony after their marriage registration, and they understood between each other that they would not live together or have sexual intercourse until after the rites. The husband delayed arranging the ceremony and kept quiet when the wife asked him to. The court treated this as willfully refusing to follow through and cancelled their marriage.3. It’s still legal for Non-Muslims to have more than one wife - if you married before 1982Image from Huffington Post.Polygamy among Non-Muslims is generally no longer legally accepted in Malaysia, however, not so long ago, it was common practice. After the Law Reform (Marriage and Divorce) Act 1976 was passed which outlaws polygamy in Sections 5, 6, and 7, what gives is that Section 4(1) allows the continued existence of polygamous marriages that took place before 1 March 1982. This is as long the marriage was valid according to the laws and customs it was solemnized under.However, the same Act still forbids those who are already polygamous from taking on any more spouses. Section 5(1) explains that:Every person who on the appointed date is lawfully married under any law, religion, custom or usage to one or more spouses shall be incapable, during the continuance of such marriage or marriages, of contracting a valid marriage under any law, religion, custom or usage with any other person, whether the first mentioned marriage or the purported second mentioned marriage is contracted within Malaysia or outside Malaysia.In the case of Re the estate of Choo Eng Choon, deceased; Choo Ang Chee v Neo Chan Neo, Mah Inm Neo and Neo Soo Neo (1908), the Supreme Court had to decide whether the multiple marriages of the wives to their late husband were valid. The Court decided that the marriages were legal, so long that there was evidence the marriages were carried out validly according to Chinese custom before 1 March 1982. 4. Parents cannot control who their (adult) children marryYou may be familiar with those of age (above 18) but below the age of majority (age 21) needing parental consent to get married. This is indeed provided for in Section 12(1) of the Legal Reform (Marriage and Divorce) Act 1976. It states that:""A person who has not completed his or her twenty-first year shall, … before marrying, to obtain the consent in writing—(a) of his or her father; (b) if the person is illegitimate or his or her father is dead, of his or her mother; (c) if the person is an adopted child, of his or her adopted father, or if the adopted father is dead, of his or her adopted mother; or (d) if both his or her parents (natural or adopted) are dead, of the person standing in loco parentis to him or her before he or she attains that age, but in any other case no consent shall be required.""The nervousness when meeting the parents for the first time is also familiar to many. While a family’s approval to marriage are private matters the law prefers not to pry into, it is illegal to force someone to marry a particular person, or to stop an adult from marrying. As according to Section 37 of the Legal Reform (Marriage and Divorce) Act 1976:""Any person who uses any force or threat— (a) to compel a person to marry against his will; or (b) to prevent a person who has attained the age of twenty-one years from contracting a valid marriage, shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand ringgit or to both.""Marriage squabbles are something individuals are left to settle privately, but if it comes to someone restricting and controlling someone else’s freedom to choose and marry. This is where Big Brother Law steps in and says “NO”.With one exception…5. You can object to someone's marriage by notifying the Registrar of MarriagesThis is can be pretty technical, but the simplest (though not the most accurate) way to see it as a temporary ban on the person from marrying. Say you’re the parent of a rebellious child under 21 who has decided to get married without your consent. To get married, they would file a notice of marriage with the Registrar of Marriages, while ignoring their need for your consent. If that happens, you can enter a caveat (a legal notice to warn or explain) against the marriage under Section 19 of the of the Legal Reform (Marriage and Divorce) Act 1976 by paying a small fee to the Registrar, and filing your grounds for objecting to the marriage. In such situations where a marriage is objectionable, under Section 20(1), a marriage certificate will not be issued unless you withdraw the caveat or the Registrar does not find that your reason should obstruct the marriage:If a caveat is entered in accordance with section 19 the Registrar shall not issue a certificate for the marriage against which the caveat has been entered unless— (a) after enquiring into the matter of the said objection, he is satisfied that it ought not to prevent the issue of such certificate for the marriage; or (b) the caveat is withdrawn by the person who entered it: Provided that in cases of doubt it shall be lawful for the Registrar to refer the matter of any such caveat to the High Court which shall decide upon the same.If stopped from marrying, the person named in the caveat can appeal to the High Court.Only file strong reasons for objection; if it is found that your ground for objection is frivolous or without proof, you will be liable to compensate them for all costs incurred. Caveats are not something your psycho-ex can use to stop your marriage because “I still love her” or some other strange reason. In Section 39, if you’re found guilty of making false accusations, or pretending to be someone whose consent is needed for the marriage, you can jailed for up to 3 years or fined up to RM3000!Hopefully you won't need to use any of these laws Marriage may take place between two people, but our private lives involve complex relationships which the law needs to consider. Be it a spouse wrongly accused of adultery, a polygamous trio who obeyed their cultural marriage laws before 1982, or disapproving parents who are looking out for their kid. There's a right in law for everyone in the family, and knowing them just might prevent a problem one day."
"Adakah Busker di Malaysia memerlukan lesen untuk membuat persembahan? [Artikel asal ditulis dalam Bahasa Inggeris. Click here for English version]Ramai yang berpendapat bahawa kerjaya dalam bidang muzik, silap mata atau bidang seni lain yang serupa sama seperti membuat persembahan di stadium besar di hadapan jutaan penonton ibarat konsert Taylor Swift atau Shila Amzah; tetapi ada sebahagian yang hanya membuat persembahan di tepi-tepi jalan sekitar KL, di hadapan orang ramai lalu lalang - dipanggil ""busking"".Busking adalah persembahan secara langsung, tidak kira persembahan muzik, tarian, mime ataupun pertunjukan silap mata yang dibuat di tempat awam. Di Malaysia, dipanggil Pemuzik Jalanan bagi buskers yang bermain alat muzik. Terdapat banyak sebab kenapa seorang artis bergiat dalam busking ini - oleh sebab mereka menikmatinya, untuk mengasah lagi bakat, mendapat lebih banyak kenalan dan juga sebagai kerjaya tetap bagi sesetengahnya!Meskipun hanya anak-anak kucing adalah penonton anda. Imej dari BoredPanda.Akan tetapi, ada yang dihalau dan ditahan. Mengapa? Kerana, permit.Umumnya, undang-undang berkaitan hiburan secara langsung ini adalah di bawah bidang kuasa negeri melalui pihak berkuasa perbandaran, tetapi tidak semua negeri mempunyai undang-undang terkait yang mengeluarkan pemit busking. Kuala Lumpur merupakan yang terkecuali. Jadi, berdasarkan Akta Hiburan (Wilayah Persekutuan Kuala Lumpur) 1992 sebagai contoh, ia menyatakan1) Definisi hiburan secara lansung (Seksyen 2):“hiburan” termasuklah - (a) lakon, opera, pantomim, lakonan aneka ragam, persembahan muzik, nyanyian, tarian, gimnastik, pertunjukan seni mempertahankan diri, akrobat dan silap mata, pertandingan ratu cantik, tablo, pertunjukan, peragaan dan perarakan, yang didalamnya orang hidup mengambil bahagian...2) Tiada bayaran dikenakan (Seksyen 2):...di mana-mana tempat yang orang ramai dibenarkan masuk dengan atau tanpa bayaran wang atau balasan lain;3) Dan paling mustahak, kehendak bagi mendapatkan lesen (Seksyen 4):(1) Tiada seorang pun boleh mengadakan hiburan di mana-mana tempat hiburan melainkan Dato Bandar telah memberi - (a) suatu lesen berkenaan dengan hiburan tersebut...Goldman yang terkenal di Jalan Bukit Bintang. Imej dari Flickr via Hiveminer.Memandangkan masih belum jelas bagi sebahagian negeri, Persatuan Karyawan Malaysia Rasmi (Pertubuhan bukan kerajaan yang menyokong artis tempatan) menasihatkan supaya seorang performer itu mendapatkan kebenaran dari pihak berkuasa, dan/atau pemilik tempat yang akan dijadikan lokasi persembahan terlebih dahulu, jika tidak mahu ditahan dan dirampas alat-alat persembahan seperti yang berlaku terhadap Cikgu Man, seorang pemain saksofon dari Sungai Petani di bawah Seksyen 2 Akta Orang-Orang Papa 1977 yang menyatakan:"" “mengemis” ertinya apa-apa kelakuan yang dikira akan mendorong pemberian sedekah, sama ada atau tidak terdapat apa-apa perbuatan pura-pura menyanyi, bermain, berlakon, menawarkan sesuatu untuk jualan atau selainnya...""Cikgu Man telah dibebaskan dengan amaran dan dikembalikan alat muziknya tidak lama setelah itu. Pastinya sambutan sedemikian bukan diharap-harapkan dari persembahan seorang artis. Haruslah menyemak semula dari pihak berkuasa perbandaran tempat itu jika berada di luar KL. Terdapat beberapa di bawah ini: > > Johor Bahru | Subang Jaya | Klang | Nilai | Sungai Petani | Shah Alam | KuantanHarus mendapat kelulusan dari pemilik premis perniagaan Terdapat kes di mana buskers dihalau dari premis perniagaan (mall atau kedai) walaupun mempunyai permit yang membolehkan mereka membuat persembahan/pertunjukkan di mana-mana tempat awam di KL. Ini bergantung kepada pemilik premis yang pada pendapat mereka tidak sesuai untuk buskers membuat persembahan di premis mereka kerana takut akan menimbulkan gangguan kepada pengunjung terutamanya pada hujung minggu atau jika adanya event berlangsung.DBKL telah mengambil inisiatif untuk memohon permit dari lebih lagi lokasi komersial supaya buskers dapat membuat persembahan atau pertunjukan di situ. Antara beberapa lokasi yang ""mesra"" buskers: Jalan Bukit Bintang Lanai Seni, Jalan Tuanku Abdul Rahman Jalan berhampiran SOGO Jalan Mahkamah Persekutuan (laluan-laluan di tebing sungai) Jalan Petaling Taman awam milik DBKL Di sini terdapat beberapa lagi pemilik premis perniagaan yang mesra buskers.Bagaimanapun, mungkin ada yang anda tidak tahu tentang permit buskers dari DBKL ini... Uji bakat dahulu sebelum dapat permit!Ahli silap mata jalanan melakukan pertunjukkan di Jalan Alor. Imej dari The Star.Memohon mendapatkan permit bukanlah semudah mengisi borang - anda harus menunjukkan bakat anda terlebih dahulu. Di Kuala Lumpur, DBKL mengadakan sesi uji bakat atau bengkel sekali setahun - biasanya pada hujung tahun. Untuk tahun ini (2017), bengkel tersebut akan diadakan pada bulan Disember. Borang permohonon boleh didapatkan di Jabatan Kebudayaan, Kesenian & Sukan DBKL (Menara DBKL 3), mulai bulan Oktober.Tarikh, masa dan tempat untuk bengkel-bengkel seumpama ini akan diumumkan melalui beberapa grup artis jalanan di Facebook seperti Persatuan Karyawan Malaysia Rasmi, MY Buskers Club (MYBC), Yayasan Artis 1Malaysia dan Facebook DBKL sendiri.Bengkel-bengkel ini biasanya menampilkan pemuzik-pemuzik ternama untuk membimbing buskers muzik menghasilkan karya bermutu seperti yang dilakukan Karyawan pada tahun 2015. Ini merupakan syarat sebelum diberikan permit. Dengan kata lain, DBKL tidak mahu anda membuat persembahan di tempat awam sekiranya anda tidak berbakat.Permit busking ini juga dikeluarkan untuk pertunjukan lain seperti silap mata atau mime. Sebagai permulaan, anda boleh berdaftar dengan MYBC. MYBC sering mengadakan busking festival dan dari semasa ke semasa ahli-ahlinya dimaklumkan tentang permit dan undang-undang baru. Bolehkah rakyat asing memohon permit?Tidak, permit hanya dikeluarkan untuk rakyat tempatan sahaja buat masa sekarang.Di dalam suatu perbualan telefon dengan Bahagian Setiausaha, Jabatan Kebudayaan, Kesenian dan Sukan DBKL, rakyat tempatan sendiri sukar untuk memperoleh pendapatan daripada busking, jadi DBKL mengehadkan permit dikeluarkan hanya untuk rakyat tempatan. Tambahan pula, proses mendapatkan visa untuk rakyat asing tidak mudah. Kesimpulannya: Dunia ini BUKANLAH suatu pentas!Bertentangan dengan petikan popular (dan mengelirukan) Shakespeare, dunia ini bukanlah merupakan suatu pentas yang terbuka.Sekiranya anda merancang untuk membuat persembahan di luar sana, tunggulah hingga bulan Disember. Setiap negeri berbeza penaltinya tetapi umumnya, busking tanpa pemit atau kebenaran akan dikenakan denda, anda akan ditahan dan alat-alat persembahan/pertunjukkan besar kemungkinan akan dirampas."
"If your bank messes up, the Malaysian Ombudsman can help you ""sue"" for free! Picture this scenario: You decide to withdraw some cash from your account with Bank A using an ATM belonging to Bank B. The machine swallows your ATM card without dispensing any money, and upon checking online, you find that a deduction has been made from your account. You call Bank A and ask to be reimbursed for the deducted amount, and they tell you that it's Bank B's responsibility; since it was their ATM. You then contact Bank B but they tell you that it is Bank A’s responsibility to correct the error. As your problem continues to be in deadlock, you consider taking the matter to a lawyer. This course of resolution may very well be inevitable in your case, but not without you having to debate on whether (a) Acquiring legal advice would be worth the trouble;(b) You end up thinking, “Never mind lah, I’d rather write off the money they took from my account than have to spend some more.”At this point, we should provide the disclaimer that this is a super farfetched hypothetical situation and have the confidence that financial institutions - also including insurance and Takaful - in Malaysia make it a priority to safeguard your interests (ha, banking joke!) and will do their best to accommodate your needs. But if you’ve ever wondered what could be done in an off-chance scenario as such, it is important to know what solutions are available in our country. Aside from lawyers, there exists an alternative avenue that aims to resolve such a quandary as this for you, and the best part is this: it’s free! Enter the ombudsman - for free!The ombudsman, simply put, works as an independent person who's responsible for investigating and resolving disputes between affected parties without having any vested interests.It's important to note that ombudsman services are intended to resolve disputes rather than taking away your right to have your grievances heard in court - You can still go to court, but more on that later. As far as Malaysia is concerned, the stipulation under the Financial Services Act 2013 and Islamic Financial Services Act 2013 states that: "" ' Financial ombudsman scheme' means a scheme for the resolution of disputes between an eligible complainant and a financial service provider in respect of financial services or products.""In October 2016, Bank Negara Malaysia appointed Ombudsman for Financial Services (OFS) as the official operator of the financial ombudsman scheme, giving them the authority to resolve financial disputes between financial consumers and financial service providers (FSP). FSPs include but are not limited to: banks, insurers, takaful providers, insurance brokers, takaful brokers, credit card issuers, financial advisers, and Islamic financial advisers. (The list of FSP under the purview of OFS can be found here.) OFS provides Malaysian consumers an ‘avenue for effective resolution of complaints arising from products and services’ by FSP who are its members on a free-of-charge basis. Confidentiality for parties involved is preserved (subject to the law) and resolution is typically managed in a prompt manner, i.e. within three to six months from the receipt of lodgement of a dispute. The full list of conditions for eligibility can be found here, but here are some of the main ones:1. Parties must not be legally represented.2. You must have a previously-lodged complaint with the FSP (bank or otherwise) to reach a mutual settlement3. You must lodge your complaint in writing to OFS within a certain time limit On top of this, note that if you choose to engage in the services of an ombudsman, you may not lodge a report with the Tribunal for Consumer Claims in accordance with the Financial Services Act 2013, Section 126 (5):""Where a dispute has been referred to a financial ombudsman scheme by an eligible complainant, the eligible complainant is not entitled to lodge a claim on such dispute with the Tribunal for Consumer Claims..."" [Read more: Get to know the Tribunal for Consumer Claims in Malaysia]The reason for this is to avoid multiple claims or complaints and to prevent disparity between decisions (ie, If you win one but lose the other). Here's how the process works Primarily, once your complaint has been accepted by OFS, a case manager will get in touch with you. The case manager, at that juncture, will encourage dialogues between you and the FSP to identify and discuss the outstanding issues with the goal of reaching an amicable settlement. If the circumstances necessitate it, the case manager will initiate an investigative process where: You will be asked for documents to support your complaint. Therefore, it is important for you to keep all documents from the FSP that are relevant to your dispute (such as policies, agreements, statements, etc.). You may be requested to attend interviews or meetings with the case manager via phone or in person; this allows the case manager to learn more about your case from your perspective. Following this, you may be requested to participate in mediation, conciliation or negotiation with the other party. If both parties are not able to settle the complaint amicably, the case manager will proceed make an assessment within 30 days, by taking into account the parties’ documents, interviews and/or submissions. The case manager will then make a recommendation on how the dispute should be resolved. Should both parties (i.e. you and the FSP) accept the recommendation, the terms of the settlement will then be put in writing, namely a Settlement Agreement, and are to be carried out by both parties.Image from MaxPixel It should be noted that the recommendation of the case manager is not binding on you or the FSP. If either party does not agree with the recommendation, the complaint is further escalated to the ombudsman for further judgement, during which you can expect the following: The ombudsman may require (additional) information and/or documents from you. You may be required to attend a hearing before the ombudsman or the matter is decided on evidence and submission before the ombudsman. The ombudsman will decide the matter based on the merits of the case. Upon the ombudsman reaching a decision on the matter, you may choose to accept or reject the ombudsman’s adjudication; neither party can appeal against the decision of the ombudsman. You will have 30 days to accept the ombudsman’s decision, and upon acceptance, the decision will bind both parties (i.e. you and the FPS). The ombudsman will issue an award (in writing) and the FSP must, within 14 days, comply with granting the award to you. If you’re not happy with the decision, you CAN still go to court! Should the secondary adjudication process fail to meet your satisfaction, you remain entitled to pursue your rights in court. Do, however, seek legal advice prior to doing so. If you wish to engage the services provided by OFS, please visit http://ofs.org.my or call at +60322722811."
"Aktiviti penipuan ini memang menakutkan... kerana anda dipanggil oleh ""PDRM"" [Artikel asal ditulis dalam Bahasa Inggeris. Click here for English version] Berita Baik! Ada seorang putera Nigeria yang memerlukan bantuan anda untuk memindahkan wang sebanyak 5 juta USD keluar daripada negara dan dia akan membayar anda 1 juta USD jika anda sudi menolongnya! Kita semua sudah lali dan tahu ini adalah satu penipuan (scam) yang sering dihantar ke emel anda, (kebanyakannya akan terus masuk ke dalam folder spam) kerana kes sebegini sudah diketahui ramai selepas begitu banyak amaran di Internet. Malangnya, penipuan-penipuan yang cuba mencuri wang anda ataupun maklumat sulit anda seperti kata laluan akaun bank masih berleluasa kerana ada orang masih terpedaya dengan helah penipuan “Putera Nigeria” yang bermacam-macam. Akan tetapi, Davina tidak merasa lucu kerana dia menerima satu panggilan yang kononnya daripada bank tempatan yang belarutan ke satu perbualan telefon selama 2 setengah jam di mana “pihak polis” menuduh dia terlibat dalam aktiviti pengedaran dadah. Inilah “Penipuan Macau” dimana rakyat Malaysia sudah ditipu sebanyak RM2.7 juta. Muka surat hadapan surat khabar The Star pada 4hb Julai 2017Stail penipuan ini bukanlah baru dengan berita penangkapan sudah dibuat pada tahun 2014 yang lalu. Ada kemungkinan kegiatan masih berjalan kerana tangkapan baru dibuat pada 4hb Julai tahun ini. Perlu diingatkan bahawa penipuan-penipuan ini sentiasa bertukar corak dan rupa dan apa yang diketahui sekarang ialah Penipuan Macau adalah agak mirip kepada Penipuan IRS di AS dimana penipu-penipu menyamar sebagai pegawai pemungut cukai IRS yang memanggil mangsa-mangsa yang tidak mengesyaki langsung, dan diberitahu bahawa mereka tidak membayar cukai ataupun melakukan jenayah penipuan cukai. Mereka (penipu) akan menrancang dan menyamar dengan begitu teliti sekali seperti dalam kes Davina di mana mereka menggunakan nombor ibu pejabat kontinjen polis Pulau Pinang secara perdayaan (spoofing) dan mempunyai seorang “Inspektor Kanan” memainkan peranan “menengking” Davina kerana dia tidak fasih bertutur Bahasa Melayu. Anda boleh dan patut membaca kenyataan penuhnya di penghujung artikel ini yang diterbitkan semula sini dengan kebenaran Davina. Secara ringkas: Davina menerima panggilan daripada pemungut cukai di Bank Hong Leong cawangan Pulau Pinang dimana dia diberitahu bahawa pihak bank akan mengambil tindakan undang-undang terhadapnya kerana dia tidak menjelaskan hutang pinjaman sebanyak RM50,000. Beliau berkata bahawa dia tidak mempunyai akaun di cawangan bank itu dan pemungut cukai tersebut terus menyambungkan dia ke stesen polis Pulau Pinang untuk mengfailkan laporan. Dia bercakap dengan seorang “Sarjan” yang memaklumkan dia bahawa panggilan ini akan direkod dan meminta dia mengesahkan nombor telefon itu adalah daripada Ibu Pejabat Kontinjen Polis Pulau Pinang. Sarjan itu berkata nama dia terlibat dalam kes pengedaran dadah dimana wang hasil jualan dadah tersebut sejumlah RM250,000 masih belum dijumpai. Berdasarkan kepada bukti-bukti dan keterangan oleh pengedar dadah yang diberkas, pihak polis percaya bahwa dia telah menjual IC dan butir-butir akaun bank kepada pengedar dadah. Dia diminta menyatakan berapa baki simpanan wang dalam akaun-akaun banknya (TAPI bukan kata laluanya kerana kononnya pihak polis tidak ada hak untuk mendapatlan maklumat itu) dan sebarang wang yang tidak diisytiharkan akan digunakan sebagai bukti untuk mendakwa dia dalam makhamah. Sarjan itu juga memberi amaran bahawa dia mesti merahsiakan kes ini untuk mengelakkan siasatan kes tersebut tergugat. Kemudian, Sarjan itu menghubungkan Davina ke orang atasannya - yang berpangkat Inspektor - supaya dia (Davina) boleh menerangkan situasinya tetapi Inspektor itu tidak mahu mendengar penjelasan dia, malah memarahi Davina kerana dia tidak bertutur dalam Bahasa Melayu jadi dia terus memotong panggilan. Sarjan itu menelefon Davina semula dan dia merasa Davina tidak terlibat dengan kes dan sudi membenarkan Davina untuk menghulurkan bantuan menyiasat kes tersebut. Davina ada dua pilihan – kerjasama dengan Sarjan tanpa pengetahuan sesiapa pun ataupun akan direman dalam Ibu Pejabat Polis Kontinjen Pulau Pinang selama 45 hari minima untuk siasatan lanjut. Dia juga mengingatkan Davina bahawa hukuman mati akan dikenakan dalam kes jenayah dadah. Adalah tidak menghairankan Davina memilih untuk berkerjasama, Sarjan itu mengatakan Davina oleh kerana bank itu akan mengenakan denda dalam tempoh satu jam jadi dia perlu memindahkan kesemua baki simpanan wang dalam akaun-akaun bank ke akaun Makhamah Majistret untuk tujuan audit. Sarjan itu akan menolong proses pemindahan wang menerusi telefon akan tetapi Davina baru sedar ini adalah satu penipuan pada masa itu jadi dia terus menamatkan perbualan. Kes-kes penipuan sebegini seringkali mengeksploitasikan kelemahan manusia seperti ketakutan, ketamakan ataupun kejahilan, oleh sebab itu ada beberapa elemen ataupun kesilapan fakta yang boleh menjadi tanda-tanda amaran. Kami akan memeriksa kesemua lima elemen tersebut supaya anda tidak akan terkena tipu apabila pihak “berkuasa” menghubungi anda. Kami merujuk kes ini kepada peguam Fahri Azzat untuk pandangan dari segi undang-undang. 1. Pihak berkuasa tidak akan menjalankan siasatan menerusi panggilan telefon Untuk illustrasi sahaja. Imej dari AllSingaporeStuff. Tidak mengira sama ada PDRM, Bank Negara ataupun LHDN, pihak berkuasa tidak akan menjalankan siasatan penuh menerusi panggilan telefon ataupun meminta anda menyerahkan “bukti” kepada mereka. Fahri menjelaskan bahawa walaupun tiada prosedur ataupun rang undang-undang yang menghalang polis menyoal siasat anda atas talian telefon tetapi ini tidak masuk akal kerana Seksyen 111 Kanun Tatacara Jenayah boleh mendesak anda tampil terus ke stesen polis untuk memberikan keterangan jika perlu. “Saya tidak pernah dengar sesi soal siasat menerusi talian telefon oleh polis. Mereka tidak akan melakukannya kerana mereka perlu mengambil kenyataan dalam bentuk tulisan, cetak kenyataan itu, memberikannya kepada anda untuk tujuan pembacaan, dan turunkan tandatangan. Memang tidak masuk akal dari segi prosedur ataupun logistik untuk membuat panggilan telefon sebegini”- Fahri Azzat dalam emel kepada ASKLEGAL. Akan tetapi penipu-penipu cukup licik dengan percubaan untuk menonjolkan diri seolah-seolah mereka adalah pihak berkuasa tulen. Seperti dalam kes ini, sarjan polis itu menjelaskan Davina tidak boleh memberikan kara laluan akaun banknya (prosedur yang tepat) dan meminta dia mengesahkan nombor ini adalah daripada ibu pejabat polis menerusi carian Google: “Dia kata sahkan nombol panggilan sekarang dengan Google dan pastikan inilah nombor ibu pejabat kontinjen polis Pulau Pinang. Sepatutnya saya syaki sesuatu tetapi malangnya saya tidak sedar pada masa itu.” - Davina apabila dihubungi oleh ASKLEGAL. Perlu diingatkan bahawa ini tidak bermakna pihak polis terlibat dalam penipuan. Panggilan ini menggunakan “call spoofing” ataupun panggilan perdayaan yang lazimnya digunakan dalam skim penipuan panggilan dari “bank”. Malah bank seperti RHB telah memberikan amaran mengenai skim penipuan sebegini. 2. Awasi taktik “Good Cop – Bad Cop” ataupun 'sebelah tangan mahu bersalam, sebelah tangan lagi mahu menumbuk' Imej dari 116Boyz Taktik ini adalah berdasarkan kepada teknik psikologi yang wujud, ini adalah lazim dalam beberapa scenario seperti soal siasat oleh polis dan perundingan bisnes dimana satu akan cuba mengasari mangsa manakala satu lagi adalah serba faham dan mempunyai simpati terhadap mangsa demi membina kepercayaan. Kemudian mereka akan menggunakan kepercayaan tersebut untuk memperdayakan si mangsa. Taktik ini tidak terhad kepada penipu-penipu yang menyamar sebagai polis sahaja. Sebagai contoh, satu variasi penipuan IRS di AS mensasarkan pendatang ke negara itu - mereka akan menggunakan seorang “ejen” yang mengancam mangsa dengan pengusiran dari AS sebelum memindahkan panggilan telefon kepada satu lagi “ejen” yang menjanjikan semuanya akan beres jika pembayaran dibuat. Seperti dalam kes Davina: “Saya dihubungkan untuk menjelaskan kes saya kepada Inspektor yang memarahi saya kerana tidak bertutur dalam Bahasa Melayu dan terus memotong panggilan. Sarjan itu memanggil Inspektor itu kembali semasa saya masih dalam talian untuk menerangkan bahawa dia rasa saya tidak bersubahat dan mahukan pertolongan saya dalam siasatan kes ini” 3. Jia ada tempoh masa terhad, inilah masa untuk meletakkan telefonGif dari KotakuPrinsip kekurangan (scarcity principle) adalah satu teknik yang biasa digunakan dalam strategi pemasaran dan malangnya agak berkesan dalam kes penipuan juga. Perkataan “tawaran buat masa ini sahaja” bermakna peluang ini hanya datang sekali dalam seumur hidup dan tidak akan kembali selepas tempoh itu berlalu. Keberkesanannya dari dua segi...kita sering menggangap sesuatu yang terhad sebagai lebih bernilai. Satu lagi adalah masa terhad tidak memberikan banyak ruang untuk kita berfikir secara logikal. Konsep ini mendorong kita membuat keputusan berdasarkan kepada emosi, bukan logik. Ini menyebabkan banyak kesilapan yang boleh dielakkan. Sebagai contoh, Putera Nigeria yang perlu mengeluarkan wang sebelum penukaran kerajaan ataupun kes “Penipuan Poyais” oleh seorang Scotland yang bernama Gregor MacGregor pada tahun 1822. MacGregor menggunakan prinsip ini (disamping beberapa teknik-teknik lain) untuk memujuk para pelabur untuk melaburkan duit dalam satu ekspedisi yang dianggotai oleh 250 orang peneroka Scotland ke Pulau Poyais yang serba kaya. Tetapi pulau itu hanyalah satu cerita dongeng dan 70% peneroka dalam ekspedisi menemui maut dalam pencarian pulau itu. Dalam kes Davina pula, prinsip ini muncul dalam bentuk dakwaan jenayah dan tindakan undang-undang oleh bank: “Seorang Pemungut Hutang memberitahu saya sudah lambat dalam pembayaran hutang RM50,000 yang saya pinjam daripada Bank Hong Leong cawangan Pulau Pinang dan saya akan dikenakan kompaun jika saya tidak menjelaskan hutang dalam tempoh masa 2 jam... ...jadi Sarjan itu mengatakan langkah seterusnya, “Oleh kerana bank akan mendenda saya dalam tempoh masa 1 jam, saya perlu bertindak segera”” 4. Mereka meminta anda merahsiakan pekara iniImej dari 83UnsungHeroesSebagai satu taktik untuk menghalamg campur tangan dari luar yang boleh menjejaskan skim mereka, pihak penipu akan sentiasa cuba mencari peluang untuk menghalang si mangsa daripada membincangkan hal ini dengan orang lain. Beberapa kaedah seperti memaksa anda teus tersangkut dalam panggilan telefon (dalam kes-kes penipuan pelaburandan pemindahan wang) ataupun melarang anda mempunyai apa-apa diskusi dengan orang lain. “Saya dilarang membincangkan kes ini dengan sesiapa pun kerana banyak lagi suspek masih belum ditangkap dan ada kemungkinan salah satu kawan saya adalah suspek juga.” Apabila penipu menghubungi anda dengan dakwaan yang mereka adalah pihak berkuasa seperti bank ataupun kerajaan, adalah satu tindakan bijak untuk anda memanggil nombor telefon bank ataupun agensi sebenar secara sendri, tidak menghiraukan apa-apa nombor yang penipu berikan pada masa tiu. Jangan risau, anda tidak akan mengalami sebarang masalah jika anda berbuat demikian. 5. Mereka mengambil kesempatan kerana anda kurang berpengetahuan Imej dari Narratively. Lukisan oleh Marley Allen-AshSatu skim penipuan yang amat popular pada masa ini adalah Penipuan Bantuan Teknikal Microsoft (Microsoft Tech Support Scam). Dalam skim ini, penipu yang menyamar sebagai ahli teknikal Microsoft memanggil mangsa bahawa komputer mangsa menghadapi masalah teknikal dan menyakinkan mangsa untuk memberikan akses komputer kepada mereka. Selepas itu, penipu-penipu akan memasang perisian hasad/intip dan mencuri maklumat sulit, malah mereka akan mengenakan bayaran untuk “servis” mereka!Menurut Microsoft, kebanyakan mangsa kurang memahami teknologi.Penipu akan sentiasa menyamar sebagai pihak berkuasa (seperti dalam Penipuan Macau, biasanya mereka menyamar sebagai polis) untuk memperdayakan mangsa supaya mereka akur terutamanya dalam bidang seperti undang-undang dan teknologi. Seperti dalam kes Davina, jikalau dakwaan itu adalah benar, dia tidak akan dihukum mati jika disabitkan dalam kesalahan subahat: “Dengan tanggapan bahawa dakwaan itu benar, dia boleh didakw menjual kad IC-nya. Manakala untuk dakwaan jenayah dadah, pihak polis memerlukan banyak bukti untuk mensabitkan dia.” - Fahri Azzat. Untuk menangani situasi seperti ini, pengetahuan undang-undang asas dan hak asasi anda mungkin membolehkan anda sedar akan penipuan secara awal dan memecahkan tembelang mereka: “Satu repons yang baik ialah katakan, “Sila hantar notis Seksyen 111 kepada saya dan saya akan datang”. Ini akan membuatkan mereka faham bahawa (1) Anda tahu tentang prosedur jenayah dan; (2) Anda bukan satu mangsa yang mudah ditipu” - Fahri Azzat. Mungkin anda boleh menimba pengetahuan undang-undang Malaysia dengan membaca artikel di ASKLEGAL seperti undang-undang jenayah dadah pada misalannya. Ini memanglah satu penipuan yang ketara....melainkan apabila ia berlaku kepada anda Sekarang anda mungkin ketawa/sengih sinis apabila membaca kes ini tetapi jika anda terkena, mungkin anda tidak akan sedari pada masa itu. Nasib baik Davina sempat sedar bahawa dia sedang ditipu sebelum apa-apa duit lesap pada masa itu (selain daripada kesemua rancangannya tergendala), mangsa-mangsa lain tidaklah senasib baik.Skim penipuan mempunya evolusi yang terus berkembang jadi tidak ada satu cara ataupun teknik yang membuatkan anda tidak lut kepadanya melainkan sentiasa menggunakan akal fikiran dan mempunyai pengetahuan hak anda (dan undang-undang) apabila dihubungi oleh orang-orang yang mendakwa mereka adalah pihak berkuasa. Kisah Davina (diterjemah) Saya menerima panggilan dengan siri nombor bermula dengan 00. Saya menjawabnya dan “Pemungut Hutang” menerangkan bahawa saya sudah lewat dalam pembayaran kembali pinjaman saya sebanyak RM50,000 di Bank Hong Leong cawangan Pulau Pinang dan saya akan dikenakan denda jika saya tidak menjelaskan hutang tersebut dalam tempoh 2 jam. Saya menerangkan bahawa saya tidak mempunyai sebarang akaun di bank itu dan saya menginap di KL sekarang. Pemanggil tersebut (seorang wanita) memberikan butiran akaun itu untuk tujuan rujukan and menghubungkan saya dengan satu stesen polis di Pulau Pinang untuk tujuan membuat laporan. Saya disambungkan kepada seorang Sarjan yang mencatatkan butir-butiran asas dan memaklumkan saya bahawa orang atasannya akan memanggil saya semula untuk catatan rekod di atas talian telefon. Seterusnya, saya menerima panggilan yang mempunyai nombor ibu pejabat Polis Pulau Pinang yang sahih dimana seorang Sarjan lain mencatatkan laporan atas talian telefon secara sulit. Semasa perbualan, dia memastikan butiran-butiran saya secara terperinci terutamanya latarbelakang saya menerusi walkie-talkie. Selepas itu, dia mengatakan bahawa nama saya terlibat dalam satu kes jenayah dadah yang besar yang baru berlaku. Pengedar dadah tersebut telah diberkas dengan 16kg meth dan sudah meraih keuntungan kasar sebanyak RM500,000. Menurut Sarjan itu, hanya separuh daripada wang itu dapat ditemui. Pengedar dadah itu mengaku dalam kenyataannya bahawa dia telah menjual IC dan butiran akaun bank saya dalam operasinya. Dia juga mendakwa mempunyai banyak bukti menunjukkan saya adalah seorang rakan sejenayah secara rela. Sarjan tersebut menuduh saya cuba menyembunyikan sesuatu tetapi saya menafikan tuduhan dia sekeras-kerasnya. Saya disuruh memberikan keterangan mengenai baki simpanan wang dalam semua akaun-akaun bank saya secara rasmi supaya memastikan ia bukan wang gelap untuk tujuan rekod. Saya terpaksa mengorek kesemua kenyataan akaun bank saya dan senaraikan satu demi satu. (Sarjan ini menyuruh saya jangan memberitahu maklumat sulit seperti kata laluan kerana pihak berkuasa seperti dia tidak boleh ambil tahu daripada orang awam). Apa-apa baki simpanan wang yang saya tidak laporkan akan digunakan sebagai bukti dakwaan di makhamah menurut dia. Saya juga dilarang memberitahu sesiapa pun mengenai kes ini kerana ada beberapa suspek masih belum diberkas dan ada kemungkinan salah satu daripada mereka adalah rakan saya sendiri menurut Sarjan itu. Selepas sessi rekod itu, saya dihubungkan dengan seorang pegawai atasan yang berpangkat Inspektor. Dia naik marah kerana saya tidak bertutur dalam Bahasa Melayu dan terus meletakkan telefon secara biadap. Sarjan itu memanggil orang atasannya semula semasa saya masih dalam talian telefon, menerangkan bahawa dia merasa saya tidak bersubahat dengan pengedar dadah tersebut dan saya ingin membantu siasatan kes ini. Selepasnya, Sarjan menamatkan panggilan itu dan memaklumkan saya bahawa Inspektor itu memberikan saya dua jalan: membantu siasatan itu secara sulit ataupun saya akan ditangkap dengan waran dan ditahan di Ibu Pejabat Polis Pulau Pinang selama 45 hari minima. Jika saya memilih opsyen no 1, kerjaya Sarjan itu akan tergugat jikalau saya disabitkan kesalahan dan saya dingatkan oleh Sarjan itu bahawa hukuman gantung akan dikenakan untuk semua jenayah dadah. Setentunya saya memilih untuk membantu siasatan dan Sarjan mengingatkan saya perlu percayakan dia bulat-bulat untuk langkah seterusnya. Makhamah majistret akan membuat audit ke atas semua akaun-akaun bank saya jadi saya perlu memindahkan kesemua baki simpanan saya daripada bank-bank to satu akaun makhamah untuk tujuan siasatan. Pada masa itu, saya hanya berkata “ Sarjan, aku tidak percayakan kau” dan teus menamatkan panggilan yang belarutan selama 2 setengah JAM. Saya terus menjerit dan menangis dengan kuat sambil suami aku cuba memujuk saya walaupun dia terpinga-pinga pada masa itu. Kami terus pergi ke stesen polis yang terdekat dan membuat laporan TULEN. Pihak kakitangan polis memberitahu saya bahawa banyak penipuan sedemikian kerap berlaku sekarang. Mereka juga merasa kagum akan betapa telitinya cubaan penipuan ini. Saya juga memanggil Bank Hong Leong untuk membuat laporan kes tersebut dan mereka sedang menjalankan siasatan mengenai isu ini sekarang. Saya mengalami trauma kerana insiden ini. Saya merasa sangat marah kerana terpaksa membatalkan banyak rancangan-rancangan pada hari itu dan betapa senangnya saya ditipu oleh mereka. Agak mengecewakan juga bagi saya kerana sekarang saya tahu ada orang yang sanggup membuat penipuan seperti ini secara teliti. Alangkah baiknya jikalau mereka boleh menggunakan kesemua akal dan masa untuk menyara hidup secara sah. Apa yang saya risaukan sekarang bahawa ada insan-insan yang celik dan mempunyai akal seperti saya masih boleh menjadi mangsa penipuan dan mungkin tidak senasib baik seperti saya, memyerahkan wang simpanan mereka dan tidak akan mendapatkannya semula buat selama-lamanya."
"Who pays if your car is damaged or stolen when using valet parking in Malaysia? When using valet parking, do we ever take pause and think: we are handing over our car keys to a complete stranger, who then returns our car keys to whomever has our parking ticket (usually us) and pays the fee, with no way to verify their identity. Let the potential risks sink in for a bit… What if your car gets damaged by someone and you don’t know who? What if you lose your ticket and someone else collects your car? The fact that you’re reading this probably means that you’re a concerned driver who has wondered about this problem before. Your car could be damaged by an irresponsible person or at worst, stolen. A businessman got his luxury Mercedes stolen from a mall’s valet parking service; according to the CCTV footage, the thief just spoke to the valet operator, collected the keys, and casually drove away. Pretty car right? And now, for my next trick… Image from carsifu.my So who is responsible for my poor car? There are 4 parties you could potentially go after for compensation depending on the circumstances: 1. The valet who drove your car 2. The valet company 3. The building operator; or 4. A third-party who damaged/stole your car. AskLegal interviewed a corporate lawyer who prefers to remain anonymous for more insight. We won’t cover the building operator or the third-party in as much detail as the building operator is often not involved (unless the roof caved in on your car!), and third-parties tend to run and hide. (they could still be brought in as responsible but this depends on the facts case-to-case) Either way, do consult a lawyer if you have such a situation on your hands! If the valet was careless, the valet company can be held responsible to you Image from shaditayari. Say your valet lost control of your car and crashed it into a tree. As angry as you rightfully are, he probably can’t afford to compensate you. That doesn’t change the fact that your car was damaged by someone else! Who do you go after then? Enter vicarious liability - the responsibility a company bears for the actions of its employees. We know some of you might be wondering: why would the responsibility of the valet’s actions lie with someone else? The rationale for this rule was laid out in the case of I.C.I v Shatwell [1965] AC 656 (685), explaining that: “The master having (presumably for his own benefit) employed the servant, and being (presumably) better able to make good any damage which may occasionally result from the arrangement, is answerable to the world at large for all the torts committed by his servant within the scope of it” In plain language, this means that companies hire employees to do work (make money) for them, and having deeper pockets than their employees, they have more capacity to compensate any damage that may arise from their work. So they should be responsible for the mistakes of their employees within their working duties. We know, you may be wondering: why do you have to bring a lawsuit? You do lose your No Claim Discount, but isn’t it simpler to claim serious damage from insurance? Regular car insurance may not cover damage or loss through valet services This depends on the exact wording of your insurance policy, but in most cases, you will not be able to claim from your insurance company, because you gave your keys to a third-party out of free will. You’ll have to seek compensation from the person at fault. But then we come to the exceptions businesses make to protect themselves from risk, which may or may not exclude damage to or loss of your car. Image from Safety Supply Warehouse. Note that most valet companies are legit businesses who are familiar with using an exclusion clause to escape responsibility. In this context, it is the “park at your own risk, the management will not be liable for any loss or damage caused” type of statement commonly found on signs in parking lots. The lawyer we interviewed explained that: “How much responsibility can be avoided depends on the extent of the exclusion clause. These are interpreted strictly and a ‘contra-profarentum’ rule applies - any ambiguity in the clause will be interpreted against the business trying to exclude responsibility.” - A corporate lawyer, in interview with ASKLEGAL The contra-profarentum rule protects customers from companies trying to exclude liability for way too many things, and the law will hold the company liable for anything it doesn't cover. For example, if a car park company tell their customers “the management will not be responsible for damage to your car”. This statement doesn’t state whether the management will be responsible for damaged motorcycles. What if my car breaks down because of flooding, or is stolen instead? Using the contra-profarentum rule, the management would be held responsible for these situations. When using a valet service, you are forming a contract with the valet company. The contract contains an implied promise from the operator that they will use due diligence and take reasonable care when your car is in their hands. When you tally this with the contra-profarentum rule, unless the valet service clearly states they do not accept responsibility for the actions of their employees, they can be held responsible for damage and/or loss suffered from the actions of their employees. Here’s how to tackle 3 common car damage scenarios Image from Consumer Recovery Network. Onto filing a lawsuit. Who do you sue for what? According to the corporate lawyer we interviewed: “There are two possible causes of action. One would be in contract (i.e. breach of contract) and the other would be in tort (i.e. negligence).” [Read more: Did you know you can be taken to court for something that is NOT a crime?] [Read more: 10 things to know when signing a contract] If your car was damaged or stolen… In this scenario, we’re advised that it depends who caused the damage or theft. Was your car damaged because the valet drove recklessly? Was your car stolen because the valet didn’t lock the doors? If so, the valet company should be vicariously liable for the damage, but to be doubly sure, you should name the valet and the valet company when you sue. If your car was damaged because the roof collapsed, or the guards were careless in their duties, you might be able to go after the building operator. This is assuming the unlikely event that their exclusionary clause is not wide enough to escape responsibility for your car. If your car was crashed by the valet… The valet is responsible, and the valet company should be vicariously liable for the valet’s mistake. Again, name both the valet and valet company when you sue. If another driver hits your car after being parked by the valet… If the valet did not park your car negligently (i.e. they didn’t park it in such a way or at such a location whereby someone probably would end up knocking it), then the fault lies with the other driver. If the other driver pulls a hit and run, it will be difficult to identify him. One way to solve this is to request the building operator to provide CCTV records. If they refuse, a “Norwich Pharmacal” order can be requested, which forces them to provide records to help the investigation. It’s basically lending your car for safekeeping And that means putting your car outside your control for a while. While we can’t do much in the unlikely event someone really has it out for us, we can control a lot the risks by taking simple precautions. Whether you’re parking your car or someone else is, you can always take precautions like making sure you bring along your valuables, lock your doors, and park your car in a safe location far from hazards (such as construction nearby)."
"Adakah rakyat Malaysia  enggan menggunakan perkhidmatan guaman? - Ambillah survei ini! [This survey is also available in English. Click here for the English version] Ada kalanya, kita mungkin terperangkap dalam satu kemelut ataupun situasi apabila gim kegemaran kita gulung tikar tanpa amaran ataupun seorang ""kawan"" meminjam wang tanpa niat untuk membayar kembali. Tanpa mengira apa jua keadaan, menggunakan perkhidmatan guaman terlebih dahulu mungkin bukan salah satu tindakan yang diambil kira secara amnya. Kami berkerjasama oleh peguam Fahri Azzat dalam survei ini oleh kerana kami mahu mengambil tahu apakah pendapat anda mengenai perkhidmatan guaman di Malaysia dan apakah kemungkinan anda akan merujuk ataupun menggunakan perkhidmatan mereka. Maklumat sulit anda tidak akan didedahkan ataupun dikongsi dengan sesiapa pun dan kesemua jawapan akan dirumuskan sebagai data kolektif. Jadi, silalah berkongsi pendapat anda dengan kami dalam survei dibawah dan, jika anda sudi, berkongsi kaji selidik ini dengan rakan-rakan anda juga! Jika anda mempunyai masalah dengan membaca ataupun menggunakan borang dibawah, sila ketikkan disini. Loading..."
"5 Facts You Didn't Know About The Malaysia Agreement 1963 [Note: This article was originally written in July 2017] Shortly after the Federal Government's announcement of tourism tax that's slated to take effect in July, the Sarawak state government made a surprise move by withdrawing its state representative from the Malaysian Tourism Board with immediate effect. This move is believed to be a result of Sarawak's request for the July implementation to be postponed to a later date, which was denied. But what's interesting is that Sarawak State Minister of Tourism Datuk Abdul Karim Rahman Hamzah said that tourism was a matter to be discussed as part of the Malaysia Agreement 1963: “If they do not want to defer it in Semenanjung, that is up to them. But at least defer it in Sabah and Sarawak ... You have to respect the Malaysia Agreement 1963. And another thing ― the state government must have some say in the matter; maybe the state government wants part of the tax collected to be returned."" - Datuk Abdul Karim Rahman Hamzah, as quoted by The Maiay Mail Online. In even more recent news, current Sarawak Chief Minister Abang Johari Openg announced he was sending a team of lawyers to London to study details of the Malaysia Agreement: ""This agreement is not simply an agreement; we want to get the facts right because if we want to make a claim, we must do our homework, otherwise we are just shooting at the target without hitting it."" - Abang Johari Openg, as quoted by Malaysiakini. So.... what's the Malaysia Agreement all about? As a quick refresher on what you read about in school textbooks, the Malaysia as we know it today was initially formed as the Federation of Malaya on 31st August 1957 in accordance with the Federation of Malaya Agreement: Article 3, Federation of Malaya Independence Agreement (in part): ""As from the thirty-first day of August, nineteen hundred and fifty-seven, the Malay States and the Settlements shall be formed into a new Federation of States by the name of ... the Federation of Malaya..."" However, this did not include Sabah and Sarawak. This inclusion actually came about later, when another agreement was signed which led to the merger between Sabah, Sarawak and, briefly, Singapore and the Federation of Malaya to form the present day Federation of Malaysia. That agreement is the Malaysia Agreement 1963 (MA63), which set out the terms and conditions in which the three states agreed to merge the Federation of Malaya to form Malaysia: Article 1, Malaysia Agreement 1963 ""The Colonies of North Borneo and Sarawak and the State of Singapore shall be federated with the existing States of the Federation of Malaya as the States of Sabah, Sarawak and Singapore in accordance with the constitutional instruments annexed to this Agreement and the Federation shall thereafter be called Malaysia."" Aside from being the crux of the debate for greater autonomy for East Malaysia and (now) the tourism tax issue, the MA63 is a pretty fascinating document. For instance, did you know... 1. MA63 is an INTERNATIONAL agreement Signatories of the Malaysia Agreement arriving in London on July 12, 1963. Image from The Borneo Post. MA63 is an international agreement, registered in the United Nations on 21 September 1970, bearing the registration number 10760. Being an international agreement, this means the Malaysia Parliament has no authority to amend the terms of MA63. What the Parliament can do is pass new law to give legal effect to an international treaty. For example, the Parliament passed the Malaysia Act 1963 to give legal effect to MA63. Certain parts of the Federal Constitution have also been amended to incorporate the terms of agreement made between Sabah, Sawak and Malaya during the formation of Malaysia. The Federal Constitution is said to have been amended over 700 times since 1957, but the terms contained within MA63 have remained unchanged since the day it was signed in 1963, as it is beyond the Parliament's jurisdiction to amend it. 2. Unlike Malaysian laws, MA63 cannot be changed in the Malaysian Parliament The only way the terms within MA63 can be amended is for all the signatory parties to sit down together as peers and amend it. This is due to the fact that MA63 is an international treaty, not a piece of law that the Parliament has legislated.As mentioned in the previous point, the Parliament has no legal right to amend an international treaty. In practice this would mean Sabah, Sarawak, the federal government and the United Kingdom would have to sit together and renegotiate the terms in order to change it. Unlike the Federal Constitution which can be amended by the Malaysian Parliament, MA63 and IGC Report can never be amended by anyone, unless the territories that originally signed it decided once more to return to the negotiation table and re-negotiate a new future- Zainal Ajamain, Sabahan rights activist & author, as quoted by The Malay Mail Online 3. Sabah and Sarawak have the authority to enforce MA63 on their own Tan Sri Adenan Satem. Image by Norman Goh from Malaysiakini. Article 8 of MA63 says that Sabah and Sarawak can take their own measures to enforce and implement MA63, without having to amend the Federal Constitution. Article 8, Malaysia Agreement 1963 (in part): The Governments of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other action as may be required to implement the assurances, undertakings, recommendations….in so far as they are not implemented by express provision of the Constitution of Malaysia In November 2016, then-Chief Minister Datuk Patinggi Tan Sri Adenan Satem initially proposed a motion to reclaim Sarawak's rights under MA63 in the state assembly, but this was withheld at the last moment. If the motion went ahead, it could be seen to be as the Sarawak state government using its right under Article 8 of MA63. Instead the state government opted on a diplomatic approach with the federal government on resolving the issue of unfulfilled rights under MA63. 4. Sabah and Sarawak has extra autonomy to make decisions because of MA63 Sabah and Sarawak joined Malaya in forming Malaysia with the understanding that there will be guarantees within the Federal Constitution to protect their rights and privileges. These guarantees and safeguards have since been inserted into the Constitution and relevant laws. Some of these privileges include: Non-Sabah and Sarawak lawyers do not have the right to practise in Sabah and Sarawak courts (Article 161B). As a result of Article 161B, lawyers from Peninsular Malaysia are not allowed to practise in Sabah and Sarawak without applying for a licence from the High Court of Sabah and Sarawak. Even if they have the obtained the licence, they would still have to apply for a work permit from the state Immigration Department. Sabah and Sarawak still have the right to use English in its state assembly and court proceedings (Article 161(1) and (2)). Article 161(1) forbids any law that restricting Sabah and Sarawak's right to use English for official purposes until after ten years from 16th September 1963. As of today the National Language Act 1963/1967 has not yet come into force in Sarawak. This means that it is still not mandatory for the state to use Bahasa Malaysia in government departments and state ministries. Section 1(2), National Language Act: This Act shall come into force in the States of Sabah and Sarawak on such dates as the respective State Authorities may by enactments of the Legislatures of the respective States appoint and different dates may be appointed for the coming into force of different provisions of this Act in those States. 5. Sarawak and Sabah has its own immigration law Immigration counter in Kota Kinabalu, Sabah. Image from FamousChris. Sarawak and Sabah has the power to regulate immigration to their states. In fact, Malaysians from the Peninsula require a permit if they want to work or study in Sarawak or Sabah. Those who are on a short visit to Sarawak and Sabah will have to fill an immigration form for a 90-day visit pass. This restriction is laid in in Section 66 of the Immigration Act 1959/1963, and was included because of MA63. Section 66(1), Immigration Act 1959/1963 (in part): ""... a citizen shall not be entitled to enter an East Malaysian State without having obtained a Permit or Pass in that behalf unless— (a) he belongs to the East Malaysian State..."" These restrictions are apparently implemented to limit entry to those who can positively contribute to (either) state, while keeping their borders off-limits anyone who may pose a threat to order and security."
"If my art or music gets stolen, can Malaysian copyright law protect me? If you’re a designer you may have heard of the Dentsu Utama disqualification from the Malaysia 4As advertising awards early last year. Two winning entries were found by Malaysia 4As to be plagiarized. One of the offending pieces. Credit: Mumbrella The internet has made sharing and connecting so much easier, but has also made copyright infringements that much easier as well. It’s never a nice feeling when someone earns a lot of money off of your work while you don’t get a single sen (especially in adverts), but not to worry, because we have copyright… right? Malaysian copyright law is an area content creators all want to know about, whether you’re a graphic designer, comic artist, musician... What qualifies for copyright? Do you have to register to get something copyrighted? How is it protected from copycats? Let’s first understand what copyright is and how it works, we’ll then get into the details of how to use copyright to protect yourself. Copyright is a right to control over your work Copyright is meant to do just that, protect your right to make copies of your work. Legally, it’s defined in Section 13 of the Copyright Act 1987 as “the exclusive right to control in Malaysia” a work’s reproduction, publishing and distribution, performances, and rental. It also includes “moral rights” as under Section 25 of the Copyright Act, which are: 1. The right to be identified as the author; 2. The right to not have their work distorted, mutilated, or modified. Copyright typically lasts from creation of the work until 50 years after the author’s death as defined in Section 17(1) of the Copyright Act: ""Except as otherwise provided in this Act, copyright in any literary, musical or artistic work which subsists in such work under this Act shall subsist during the life of the author and shall continue to subsist until the expiry of a period of fifty years after his death."" But a Malaysian law can only apply in Malaysia. Can the rest of the world ignore your copyright? Actually... A copyright in Malaysia applies in 174 countries. Image from United Nations Photo. No need to fret, other countries also want their copyright to apply worldwide, and for that 174 nations have signed the Berne Convention as of 3rd May 2017. What this Convention does is that every country that signs promises to give their local copyright protection to the citizens of all countries that signed. This means that if you published a song in India, your copyright would be recognized in Malaysia as well as the 172 other countries. Great! How do I copyright my ideas? Unfortunately, ideas can’t be copyrighted, because they are not tangible! According to Section 7 of the Copyright Act, copyright doesn’t protect ideas, only the expression of ideas. This means that you need to write, draw, or record! You’ll get your copyright no matter what quality the work is or what it was made for. As explained in Section 7(3): A literary, musical or artistic work shall not be eligible for copyright unless— (a) sufficient effort has been expended to make the work original in character; and (b) the work has been written down, recorded or otherwise reduced to material form. Literary works, musical works, artistic works, films, sound recordings, and broadcasts can all be copyrighted. But be aware that mere ideas, procedures, methods of operation, and mathematical concepts cannot be copyrighted. “Sufficient effort” in Section 7(3)(a) means that you have put enough of your character into a piece of work. For example, you can’t copyright a fact like “the sky is blue”, but your own explanation of why the sky is blue can be copyrighted; in the same way, you can copyright a cover of a popular song if you’ve put it in your own style. Image from artsixmic. After you’ve completed your work, it’s time to publish it to qualify for copyright as required by Section 10(2) of the Copyright Act: Copyright shall also subsist in every work which is eligible for copyright and which— (a) being a literary, musical or artistic work or film or sound recording is first published in Malaysia; (b) being a work of architecture is erected in Malaysia or being any other artistic work is incorporated in a building located in Malaysia; (c) being a broadcast is transmitted from Malaysia. Section 4 tells us that the work must be made available to the public with consent of the author to be considered published. This means that only showing your art to a few friends may not qualify you for copyright protection, but posting it on Instagram will. Now that you know all this, how do you now use copyright law to protect your work? There are 5 main ways to protect your copyright in law Image from Google Images. 1. It’s best (though not mandatory) to put copyright notices on your work. It’s the “Copyright Ali 2017” you might be familiar with on books, Pokemon trading cards, and such. To use it, put the word “copyright” or the symbol © followed by your name (or company name), and then the year of first publication. 2. Mail a hard copy of your work to yourself through registered mail. Never open this package unless needed in court. This gets you an official date from the post office as a ""date of creation"", which is an easy and practical way to show legal evidence of your copyright. 3. You can affirm an affidavit before a Commissioner for Oaths. Prepare a copy of your work when going to a Commissioner to get an affidavit. It’ll be accepted as prima facie evidence of your copyright in court (accepted as true unless proven otherwise). 4. Another option is filing a notification of claim with the Copyright Controller, and depositing a copy of your work with the Intellectual Property Corporation of Malaysia (MyIPO). You can then request for a certificate which is also prima facie evidence of your copyright. 5. Sign a Non-Disclosure Agreement (NDA) with all potential clients and business partners. This binds parties to keep information to themselves and not put it to their own use. Bonus: 4 practical steps you can take to make life harder for copyright thieves Image from Okayface. As you may already know, legal costs are expensive and it’s unwise to wait until a copyright problem comes up before taking action. Whether or not you make a lot of money on your work, remember that copycats are always one step behind you because they aren’t you! Keep on keeping on dear creator! Some people choose to take copying as a form of flattery and validation - you’re doing something valuable and worthwhile. Here are some practical steps to deter copyright infringers and lower your likelihood of having to pursue a lawsuit. 1. Encrypt your files and make sure they can’t be copy-pasted when making business deals. With your copyright notice in your work, this ensures that no one can modify your files and claim them as their own. Where offline, control who has access to your physical copies and lock your work away safely in public spaces. 2. Disable right-click saving on your website. You may need to consult someone with web development expertise, but it’s a simple way to protect your copyright online. 3. For artistic works in particular, it may help to make lower resolution copies of your work available online and keep the highest resolution for yourself. Reason being copycats may not be able to do as much with a lower quality picture. It also helps to prove you have the original. 4. Become well-known. No, serious! It’s way harder for copycats and thieves to get away with copying something famous. People would catch on quickly and call out the copycat. Imagine trying to get away with copying the Mona Lisa, or trying to call “Tale as old as time” your own original song. Good luck with that! Copyright AskLegal 2017 :)"
"Are Malaysians reluctant to see or hire lawyers? - Take the survey! [Survei ini juga disediakan dalam Bahasa Malaysia. Sila klik sini untuk versi BM] Sometimes, we might find ourselves in a bind when our favorite gym closes down without warning, or when a friend borrows money and refuses to pay it back. But whichever the scenario, engaging a lawyer may not always be the first thing that comes to mind. We worked with lawyer Fahri Azzat on a preliminary survey because we'd like to know what you think of legal services in Malaysia, and how likely you will use or consult a lawyer. Of course, your personal information will not be revealed or shared with anyone; and all findings will be presented as collective data. So share your thoughts with us in the survey below and, better yet, share this survey with your friends! If you have trouble viewing or using the form below, click here to view the survey page Loading..."
"Kalau korang langgar kereta dari belakang, memang automatik salah korang ke? [Artikel asal ditulis dalam Bahasa Inggeris. Click here for English version]Mitos Secara automatik menjadi kesalahan anda sekiranya melanggar kenderaan orang lain dari belakang. Latar belakang Oh tidak! Anda baru sahaja terlibat dalam suatu kemalangan jalan raya. Semasa dalam perjalanan di lebuhraya sambil memikirkan menu makan malam nanti, kereta di hadapan anda tiba-tiba berhenti secara mengejut. Percubaan untuk memberhentikan kereta gagal; lantas kedengaran suatu bunyi dentuman yang kuat akibat daripada perlanggaran yang berlaku. Anda pasti tidak mahu perkara seperti di atas berlaku kepada anda. Imej dari GTSpirit.com Anda terkejut dan tergamam seketika dan keluar dari kereta untuk menemui pemandu di hadapan itu. “Bukan salah saya!”, anda membantah. “Kamu berhenti secara tiba-tiba!” Tetapi malangnya pemandu tersebut bertegas bahawa anda yang melanggar dia dari belakang, jadi secara automatik anda yang bersalah. Adakah ini benar? Jawapannya memang tidak terduga kerana.. Ini adalah kerana.. Seksyen 22 Kanun Lebuhraya Malaysia – dasar kepada ujian undang-undang jalan raya dalam mendapatkan lesen memandu - dengan jelas menyatakan (diterjemah daripada Bahasa Inggeris): Penunggang atau pemandu kenderaan yang berhemah hendaklah membenarkan sekurang-kurangnya jarak sebuah kenderaan antara kenderaannya dan kenderaan di hadapan bagi setiap 10km/j kelajuan. Contohnya pada kelajuan 30km/j sepatutnya jarak ialah 3 kenderaan antara kenderaannya dan kenderaan di hadapan. Sekiranya penunggang atau pemandu kenderaan melanggar bahagian belakang atau tepi kenderaan di hadapannya, itu merupakan kesalahannya sendiri dan ini bermakna penunggang atau pemandu kenderaan tersebut mengikut terlalu dekat. Kanun Lebuhraya bukan sahaja dipakai dalam ujian memandu bahkan ia telah dikuatkuasa melalui Seksyen 68 Akta Pengangkutan Jalan 1987. Jadi, pemandu di belakang haruslah menjaga jarak dengan kenderaan di hadapan. Jika tidak, ia memang menjadi kesalahan pemandu di belakang. Walaubagaimanapun, tidak semestinya ia menjadi kesalahan pemandu di belakang secara menyeluruh jika pemandu di hadapan cuai (negligent). Dalam kes seperti itu, pemandu di hadapan juga menyumbang kepada kemalangan akibat kecuaian dan ini mempengaruhi jumlah ganti rugi yang dikenakan terhadap anda. Dalam situasi begini, fakta-fakta tersendiri yang terlibat dalam perlanggaran dari belakang ini harus diambilkira; seperti yang ditekankan dalam kes Leng Yang Sua & Anor v Ng Yen Ken & Anor [1986] CLJ (Rep) 448.Sebagai contoh, dalam kes Abdullah Karim v Ahmad Abdullah & Anor [1991] 2 CLJ (Rep) 238, hakim memutuskan bahawa pemandu di hadapan menyumbang 25% kepada kemalangan kerana tidak memerhati sekeliling terlebih dahulu semasa memberhentikan bas untuk mengambil penumpang manakala 75% lagi pula adalah menjadi kesalahan pemandu di belakang kerana tidak menjaga jarak dengan kenderaan di hadapannya.Kesalahan pemandu di hadapan jarang-jarang berlaku dalam kes perlanggaran dari belakang ini tetapi berdasarkan kes Kamaruddin Mohd Nor & Anor v Soon Soo Moe & Anor [1998] 4 CLJ Supp 301:""Adalah menjadi 100% kesalahan pemandu di hadapan sekiranya pemandu di belakang tidak berkesempatan untuk mengelak daripada berlanggar dengan kenderaan di hadapannya akibat dari kemasukan secara tiba-tiba kenderaan di hadapan sewaktu ia mahu menukar lorong ataupun semasa membuat U-turn."" Menurut sumber dari polis trafik ketika ditemuramah oleh ASKLEGAL, sebahagian besar dari kes kemalangan adalah bukan dari kesalahan kenderaan yang melanggar dari belakang semata-mata. Ia adalah akibat dari pemandu di hadapan yang menukar lorong dengan cuainya ketika memandu. Dalam situasi begini anda berkemungkinan tidak bersalah jika perkara sedemikian berlaku. Jadi sekiranya anda terlibat dalam kemalangan iaitu langgar dari belakang (tapi haraplah tidak!), kenalpasti semua faktor yang boleh mengakibatkan kemalangan tersebut. Ada kemungkinan bahawa kemalangan tersebut bukan salah anda keseorangan. Merakamkan insiden kejadian menggunakan dashboard camera amatlah membantu.Nota: Kenyataan berikut adalah berdasarkan perspektif undang-undang dan bukan dari kes individu. Jika anda mempunyai persoalan tentang undang-undang atau kemusykilan ke atas sustu berita seperti di atas, anda boleh menyuarakannya ke Facebook kami atau klik sini untuk emel."
"Re-selling your concert tickets in Malaysia may get you in trouble. Here's why The sales of all 12,000 tickets of Ed Sheeran's concert in 30 minutes was not a joyous occasion for many fans due to the simple fact that many tickets were allegedly snapped up by those who sought to resell them for a quick profit - apparently jacking prices up to RM8369 in some reports. This situation has resulted in certain ticketing agents invalidating tickets in order to act against those who have shown suspicious behaviour. But the question is, does the law forbid ticket resales or is it a grey area of ethics? There are two scenarios that you would generally encounter in ticket reselling - ticket scalping and/or reselling for genuine reasons. Ticket scalping refers to individuals selling their tickets for exorbitant prices to gain personal profit while reselling refers to people who resell their tickets due to their inability to make it to the concert, usually at the same or lower prices.This article aims to clarify how a contract is formed when you purchase a ticket and what would happen if you resell (or scalp) a ticket. Reselling tickets is not technically a crime.Image from The New York Times.A criminal wrong (aka ""crime"") is essentially an act which contravenes the laws of a country in a way that not only harms the individual that the act was carried out against but also the society as a whole. Such acts would entail an action between the government and the accused.A quick look into our Penal Code reveals no section which touches on the issue of reselling tickets. So, wait. If it's not in the Penal Code, then does that mean it's okay for me to sell my tickets?You might want to pause for a moment there because while it may not be a criminal wrong, it can still fall under a civil action. A civil action is essentially a lawsuit between two private parties, i.e not involving the government. This action is based off the legally enforceable contract between a ticketing agent and yourself, as a buyer But how can a ticket be a contract? I didn't sign anything!Image from thefourohfive.com Contrary to popular belief, contracts do not have a set format. There are written and unwritten contracts (also known as implied contracts). For cases involving tickets, the case of Parker v South Eastern Railway shows that if you have a ticket containing terms, then you are bound by those terms as it is akin to signing a document. Furthermore, as established in the case of L'Estrange v Graucob, signing an agreement means that you are bound by all contractual terms.[Read more: Is an unwritten contract legally binding in Malaysia?][Read more: What happens if you sign a contract without reading it?]In essence, contracts are formed by an agreement between parties to act in a certain manner, PLUS legal considerations as shown by section 10(1) of the Contracts Act 1950: ""All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.""But it's in how these contracts are formed that's really interesting because...The contract is actually formed by you, not the agentIn our ticketing scenario, a contract is formed when you offer to buy tickets from the agent and they agree to sell it to you. However, this may not sound right, since it should be the other way around, as it's the ticketing agents who are making offers to you through their advertisements, right? So how can you make an offer when you want the tickets that are being offered?Help. Image from SomethingAwfulActually, looking at case law, it might be YOU making the offer instead. It is understood in law that not all statements which initiate a contract can be considered an offer. They might actually be an invitation to treatIn Contract Law (11th Edition), Ewan McKendrick defines invitations to treat as an expression of willingness to enter into negotiations which may lead to a contract. In other words, an invitation to treat is merely demonstrating that you are ready to receive offers. If you are wondering how to distinguish between an offer and an invitation to treat, the Malaysian case of Eckhardt Marine GMBH v Sheriff, High Court of Malaya, Seremban & Ors stated that: ""...as a general rule, an advertisement is considered by courts to be...a mere invitation to treat..."" - Gopal Sri Ram JCA (as he then was). The logic behind considering advertisements as invitations to treat is explained in Partridge v Crittenden, where Lord Parker CJ said that it made good business sense as otherwise, sellers would be contractually obliged to sell more goods than they had. So, in our concert scenario, if all advertisements by ticket agents are considered offers, they would be sweating buckets over the breach of contract actions brought by dismayed fans who failed to purchase tickets. In a nutshell, by purchasing tickets, you are making the agents an offer to buy tickets in exchange for money, which they accept by providing tickets. Does this mean that I cannot sell my ticket to a friend if I suddenly cannot make it?As discussed above, there are typically two scenarios involving resales of tickets - (i) scalping and (ii) genuine reasons. Generally, terms contained in a concert ticket would cover any kind of resales. This means that it does not matter whether you are selling it at face value, at a premium or at a loss. A clear example would be the terms for Ed Sheeran's upcoming concert in KL: Image from Ed Sheeran Live in Kuala Lumpur 2017 Facebook's page. Click for full image For now, it is unclear whether any actions would be taken against resellers with genuine reasons. It appears that PR Worldwide, the event organisers for the upcoming Ed Sheeran concert who has invalidated certain tickets, is more focused on tackling the issue of scalping: ""...suspicious transactions would go on a blacklist. If we find that those tickets have been put up for resale, then the barcode will be disabled...to prevent individuals from reselling the tickets at atrocious prices and to discourage the public from buying from buying tickets from scalpers..."" - Anita Baskaran,Director of PR Worldwide, as quoted by The Star. MyTicket.Asia, the sole authorised ticketing agent takes a similar stance with PR Worldwide with regards to scalping and provides some insight as to how genuine sales would be dealt with:""...resale of ticket(s) at any price is strictly prohibited. Unlawful resale...will lead to seizure and cancellation...without refund or any compensation..."" - MyTicket.Asia, as quoted from a notice on their website. It seems now that organisers and agents do not distinguish between scalping and genuine reasons. Therefore, it is probably best to give the event organisers or ticketing agents a ring to ask what steps can you take if you ever find yourself with a conflicted schedule. After all, it is best not to tread in the twilight zone of legality/illegality. What can happen if I just decide to sell my tickets without calling the agents?At the end of the day, it appears that a resale in breach of contractual terms (regardless of the price and/or reasons) can result in a claim in damages as shown by section 74 of the Contracts Act 1950: When a contract has been broken, the party who suffers is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him...which naturally arose...from the breach...In addition to the above, since terms typically reserve the ticketing agent's right to invalidate resold tickets, this invalidation term can be enforced against you as it forms part of your contract."
"Fireworks are illegal in Malaysia... except for two types There’s no denying that Malaysians are extremely familiar with fireworks, seeing as they are found almost everywhere in our country – especially during festive seasons. This is an understandable phenomenon, of course, courtesy of the unparalleled delight their thunderous booms and dazzling lights bring. Are you aware, however, that fireworks are strictly illegal in Malaysia? More importantly, are you aware of what you stand to lose – according to the law – if you are caught playing or having any kind of substantial association with these explosive devices? You probably should be, because the penalties can be explosive, to say the least. Fireworks have been illegal even before Merdeka Believe it or not, laws prohibiting the usage of fireworks in Malaysia have existed since before our country secured its independence. Evidence of this is found in the Minor Offences Act 1955, which explains that those who are caught letting off fireworks – unless authorised to do so – may be subjected to punishment in the form of a fine of not more than RM100.00 or imprisonment for no more than a month, if not both. Section 3(5) of the Minor Offences Act 1955 - Restriction on letting off of fireworks: Any person who lets off any firework, except in accordance with the terms of an order or a licence issued under this section, shall be liable to a fine not exceeding one hundred ringgit or to imprisonment for a term not exceeding one month or to both. But the costs don’t stop there. Fireworks are in the same category as dynamite (!!!) You may have noticed that we called fireworks “explosive devices” in the opening segment of this article, and might just question whether this is a valid label. This may surprise you, but Malaysian law certainly believes so, as given by this definition from the Explosives Act 1957: Section 2 of the Explosives Act 1957 - Interpretation: “explosive” means gunpowder, nitro-glycerine, dynamite, guncotton, blasting powders, fulminate of mercury or of other metals, coloured fires, and every other substance used or manufactured for the purpose of producing a practical effect by explosion or a pyrotechnic effect and includes fogsignals, fireworks, fuzes, rockets,... This act then goes on to elaborate on this restriction by explaining that if you are caught even possessing these devices, let alone making or importing them, you can be slapped with a fine of RM10,000.00 or imprisonment for a term of 5 years, if not both. Section 4(2) of the Explosives Act 1957 - Power to prohibit the manufacture, possession or importation of specially dangerous explosives: Any person manufacturing, possessing or importing any explosive in contravention of a notification issued under this section shall, on conviction, be liable to imprisonment for five years, or to a fine of ten thousand ringgit, or to both. Things are only exacerbated if it is concluded that explosions caused by fireworks in your possession are likely to endanger the lives or property of others, thus rendering you vulnerable to a possible fine of RM10,000.00 or imprisonment term of 7 years, if not both. Section 6 of the Explosives Act 1957 - Penalty for causing explosion likely to endanger life or property: Any person who unlawfully and maliciously causes by any explosive an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be liable, on conviction, to imprisonment for seven years, or to a fine of ten thousand ringgit, or to both. Still thinking of parading around your neighbourhood with a massive display of pyrotechnics? Think again. One phone call from any of your neighbours may easily change your life – and not for the better. But some types of fireworks are legal In essence, and as you probably suspect by now, yes. Fireworks are entirely illegal in Malaysia, even if we’re talking about traditional explosives like “meriam buluh” (bamboo canons) and homemade devices. However, the Ministry Of Home Affairs (MOHA) – which is the presiding authority over the aforementioned laws and penalties – has made an exception for these fireworks: The Malaysian Government does not allow any form of igniting explosive firecrackers or fireworks except from the brand Happy Boom and Pop-pop. - Taken from MOHA’s website. In addition, you may also submit an application to obtain permission or licence to ignite fireworks for certain events, as described in the Minor Offences Act 1955. Section 3(1) of the Minor Offences Act 1955 - Restriction on letting off of fireworks: A Chief Police Officer or any officer authorized by him in writing by name or office (in this section referred to as an “authorized officer”) may issue orders, which shall be published in the Gazette, authorizing the letting off of fireworks on certain fixed days, and at or between certain fixed hours, and within certain defined areas, and may in particular cases or at particular times issue to any person or body of persons licences for the letting off of fireworks. These applications may be submitted to MOHA and is subject to the ministry’s approval. Certain government activities and concert events are also given permission to ignite fireworks through this process. Going out with a bang While we’re all for loud celebrations and brilliant light shows, we must remember that neither is an excuse to break laws – particularly those that have existed for well over 50 years now. These laws are also taken very seriously by local authorities, as demonstrated through the recent arrest of 5 fireworks sellers in Kluang, Johor Bahru. If that isn’t enough to deter you, just remember that explosive devices can be very unpredictable and dangerous, and that fireworks are no exception to this. The damage that was caused by a fireworks display gone wrong in Klang earlier this year testifies to this adequately. Let’s just say that going out with a bang may not always equate to a happy ending."
"Wait... Bullying is NOT a crime in Malaysia? [Note: The image above is from a Youtube video by Fusion Malaysian featuring young actors. Watch the full video here] Recently the Malaysian public was shocked by two cases of bullying that was taken to such extreme lengths that resulted in the victims losing their lives. Zulfarhan and his family. Photo credit: says.com In the first incident, Malaysia National Defence University (UPNM) Naval Cadet Zulfarhan Osman Zulkarnain was sent to the hospital with horrible injuries which included burn marks allegedly caused by a steam iron. Five university students were charged with his murder while another was charged with abetting of the act. In the second incident, 18 year old T. Nhaveen was allegedly tortured, beaten and sodomised by his high school classmates because he was “effeminate” and that he refused to join their secret gang society. Four of his ex-schoolmates (including two who are underaged) were charged with his murder and for causing grievous hurt. A relative shows a picture of T. Nhaveen. Photo credit: abcnews But these young men were not the only victims. Statistics suggest that 84% of children in Malaysia have suffered from some form of bullying which, if anything, indicates that bullying has grown to be a serious pandemic in the country. Bullying has long lasting effect on their victims and their aggressors. The trauma of being undermined, humiliated and terrified often follow bullied children into adulthood while an estimated 60% of bullies have at least one criminal conviction before they turn 24 years old. But ""bullying"" itself is not a crime in Malaysia A common question among parents is whether bullying is illegal in the eyes of the law. A parent might ask, ""Can I take legal action against the kid that’s always calling my child names and laughing at him?"" But here's the thing - NOT ALL FORMS of bullying is illegal! This is because bullying is a widely used term to definite bad behaviour towards a victim, so acts such as acting aggressively towards other children, name calling and teasing are not punishable under the law of Malaysia. However, as in the cases of Nhaveen and Zulfarhan, some acts of bullying may RESULT in criminal charges. Here are some extreme acts of bullying that may be considered a crime: 1. Verbal abuse Most acts of bullying take a form of verbal abuse, but most forms of verbal abuse are not a crime. For example, name-calling, isolation, teasing, laughing at and insulting another is not a crime in Malaysia - even if such abuse leads to self-harm of the victim. Although regular verbal abuses are not punishable by the law, if such acts escalate to threatening someone with injury - whether physically or to their reputation or property - with the intention to cause alarm or to force that person to do something against their will; the perpetrator may be charged with criminal intimidation under section 506 of the Penal Code. Criminal intimidation is defined under Section 503 (in part) as: Whoever threatens another with any injury to his person, reputation or property, ... with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. 2. Physical abuse Contrary to popular opinion, girls can be bullies too. Photo credit: Astro Awani Bullying that escalates to violence is a possible crime. If there is violence without the use of weapons, the perpetrators or bullies may be charged with voluntarily causing grievous hurt; which is defined under section 322 of the Penal Code as: ""Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause grievous hurt, and if the hurt which he causes is grievous hurt, is said ""voluntarily to cause grievous hurt"". "" This offence is punishable under section 323 of the Penal Code, or section 326 if it involves a dangerous weapon or substance. It should also be noted that in some cases, the bully doesn't need to actually hit you. A verbal threat followed by a physical action - such as saying ""I'm going to beat the **** out of you"" and an upraised fist - can be considered grounds for the criminal charge of Assault. Just saying ""I'm going to beat the **** out of you"" does not. Section 351 of the Malaysian Penal Code - Assault (in part): ""... Explanation -- Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault."" 3. Sexual assault Some acts of bullying involve sexual harassment and sexual assaults, such as a 2016 incident where two senior students at a Secondary school in Malacca raped a 13 year old student within the school’s compound. In such incidents where male bullies raped a female victim, they may be charged with Rape, punishable with imprisonment and/or whipping under section 376 of the Penal Code. Rape is defined under section 375 of the Penal Code as (in part): A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions: (a) against her will; (b) without her consent... In cases involving minors, the perpetrators may be charged with statutory rape. Statutory rape refers to sexual intercourse with a girl under the age of 16 regardless of whether she consents or not. There are sexual assaults that do not involve intercourse such as molestation or getting someone to strip against their will. These are crimes known as Outrages of decency, defined in section 377D of the Penal Code as: ""Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person..."" The same section also provides a punishment of up to two years imprisonment if found guilty. If a child below the age of 14 is involved, 377E of the Penal Code provides an even stiffer punishment of up to 15 years imprisonment and possible whipping. 4. When it results in death As evidenced in the cases of Nhaveen and Zulfarhan, acts of bullying can sometimes result in the death of the victim. In these situations, the bullies may be charged with murder or culpable homicide (sections 299 - 304 of the Penal Code). The difference between the two is the intention of the bullies to cause death as well as the circumstances surrounding the act. Because the punishment for murder is the death penalty, Nhaveen's case has created an interesting legal scenario due to two of the accused being minors.... Can a minor be charged with murder? Nhaveen's alleged attackers appearing in court. Photo credit: Danial Saad, New Straits Times. If the perpetrators are under the age of 18 but above the age of 10, they are to be tried as a minor at a special Court For Children according to section 11 of the Child Act 2001, which has no death penalty. However. when a crime has occurred where the perpetrators are both minors and adults (above 18), the law provides certain avenues where both can be charged and tried as adults. These can be found in section 83(4) of the Child Act and section 34 of the Penal Code: Section 83(4) of the Child Act (in part): ""A charge made jointly against a child and a person who has attained the age of eighteen years shall be heard by a Court other than a Court For Children..."" Section 34 of the Malaysian Penal Code: When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone. Whether or not the death penalty will be applied to the minors if found guilty is a topic on it's own, since the Child Act still provides certain protection to minors even if they are tried in ""regular"" courts. You can read this article by The Malay Mail Online which interviews senior lawyers for their opinion on the topic. There are also no laws against cyber-bullying (yet) Image credit: World Pulse Not all bullying happens in person or at the school’s compound. Instead, they can happen on the internet, outside the public eye. As technology advances, these acts known as cyber bullying escalate.Statistics reveal that 33% of Malaysian students have suffered cyber bullying while 15% have committed cyber bullying acts. At present, Malaysia does not have any laws to take action against online harassers, but given the widespread plague of cyber bullying and the anonymity of the internet, laws to punish cyber bullies are being drafted. However, other laws in Malaysia provide some protection from online dangers. Sending threatening messages could be a criminal offence under Malaysia’s Communications & Multimedia Act 1998 or Section 503 of Malaysia’s Penal Code dealing with intimidation. [Read more: Will Malaysian laws protect you against rape or death threats on Whatsapp?] Bullying should never be ignored Bullying is a serious offence. It is not something we should just shrug off as something to ""toughen the children up"". Even though bullying is generally not a criminal offence, parents and teachers should be vigilant about the well-being of the children and make sure that it doesn't go unnoticed - even a word with the bullies or their parents can go a long way. If you are a victim of bullying or know someone who is a victim, help is available from the anti-bullying hotline: Talian Aduan Disiplin 1800-88-4774 or email adudisiplin@moe.gov.my You may also call 15999 (Childline) to report incidences of bullying."
"Apa yang boleh anda lakukan jika makanan yang dibeli telah rosak atau tercemar? [Artikel asal ditulis dalam Bahasa Inggeris. Click here for English version]Anda baru pulang dari kedai runcit dan berhasrat untuk menyediakan makan malam. Setelah mengeluarkan tin kari ayam yang dibeli , anda mendapati: a) Kari ayam tersebut telah tamat tarikh luputnya; ataub) Terdapat lipas mati di dalamnya Sedangkan kebanyakan orang akan hanya memulangkan untuk ditukar atau membuang sahaja tin tersebut, di sinilah kita patut mengetahui hak kita sebagai pengguna dan tindakan yang boleh diambil jika situasi-situasi seperti di atas terjadi. Mari kita lihat pada dasarnya.. Peniaga harus menjual makanan yang selamat untuk dikonsumsi Tidak kira lipas atau paku berkarat; di sini terdapat dua akta yang memelihara anda sebagai pengguna iaitu Akta Perlindungan Pengguna 1999 dan Akta Makanan 1983. Artikel ini juga merangkumi makanan siap masak dari kedai - di mana akan dibincangkan kemudian. Akta Perlindungan Pengguna menyatakan bahawa semua barangan yang dijual harus dipastikan selamat dan tidak mendatangkan kemudaratan kepada pengguna. Misalnya: Seksyen 20 Akta Perlindungan Pengguna: “Tiada seorang pun boleh membekalkan, atau menawarkan atau mengiklankan untuk membekalkan, apa-apa barang atau perkhidmatan yang tidak mematuhi standard keselamatan..” Bukan sahaja itu, barangan tersebut harus juga menepati Akta Peraturan Makanan 1985 yang menyentuh tentang kualiti dan standard bahan makanan. Ini bermaksud, lipas tadi (yang bukan terkandung dalam salah satu kandungan bahan makanan tersebut) tidak menepati standard dan tidak selamat untuk dimakan. Sebaliknya, makanan yang rosak didefinisikan berdasarkan Seksyen 13 Akta Makanan (keseluruhannya atau sebahagiannya) iaitu: Memudaratkan kesihatan pengguna untuk jangka masa yang lama Mengandungi bahan-bahan yang tidak sesuai untuk pengguna Telah dicemari atau kualitinya substandard Bergantung kepada keadaan, pasaraya/kedai atau pembuat/pengilang dikatakan telah membuat kesalahan sekiranya mereka menjual makanan yang tidak sesuai untuk konsumsi pengguna. Pemilik boleh dikenakan denda dan/atau hukuman penjara jika disabitkan kesalahan. Jadi, apa yang boleh anda lakukan sekiranya terdapat cacing di dalam botol jus oren anda? Atau lintah di dalam minuman jus apel anda. Imej dari Metro.co.uk Situasi di atas berlaku di UK, di mana seorang wanita telah menjumpai suatu ""makhluk"" di dalam kotak minuman setelah mendapati warna dan bau air minuman tersebut tidak normal. Kes yang serupa juga berlaku di Malaysia, di mana mangsa meludah keluar seekor lintah hidup setelah meminum jus mangga. Jangan lupa tempat di mana anda membeli barangan tersebut. Langkah pertama untuk anda ambil tindakan adalah dari situ - lebih mudah dan cepat. Akta Perlindungan Pengguna juga telah menggariskan beberapa panduan jika berhadapan dengan situasi sedemikian. Sekiranya tidak terlalu serius, kesihatan anda tidak terganggu, anda boleh memulangkan barangan itu dan menukarnya dengan yang lain atau meminta pulangan wang kembali (refund) dari kedai: Seksyen 42(1) Akta Perlindungan Pengguna: “(1) Seseorang pembekal boleh memenuhi kehendak di bawah seksyen 41 supaya membetulkan kegagalan apa-apa barang untuk mematuhi sesuatu gerenti dengan—... (c) menggantikan barang itu dengan barang yang serupa jenisnya; atau (d) memberikan bayaran balik apa-apa wang yang telah dibayar..” Bagaimanapun, keadaan boleh menjadi lebih rumit jika anda mongkonsumsi produk itu tanpa menyedari produk tersebut telah rosak atau tercemar sehingga mendatangkan kemudaratan kepada kesihatan anda (seperti keracunan makanan). Dalam situasi sebegini, anda boleh menyaman pihak terbabit dan menuntut ganti rugi akibat kecuaian. Sebaik-baiknya, anda haruslah mendapatkan khidmat nasihat dari peguam yang berkelayakan terlebih dahulu. Jangan lupa resit anda! Anda disarankan untuk menyimpan resit bayaran sebagai bukti pembelian untuk mengelakkan pertikaian yang boleh berlaku – bukti anda membeli di kedai/pasaraya tersebut pada tarikh dan waktu yang spesifik. Jika masalah ini melibatkan kesihatan anda (kesihatan anda terganggu), adalah lebih baik jika ia diselesaikan secara langsung dengan pengilang/pengeluar atau pemilik kedai/pasaraya yang terlibat memandangkan tindakan-tindakan alternatif lain memakan masa dan kos. Bagaimana pula jika mereka yang terbabit tidak mahu bertanggungjawab ke atas kecuaian mereka? Anda boleh menyuarakan aduan ke Pusat Khidmat Aduan Pengguna Nasional atau Kementerian Perdagangan Dalam Negeri, Koperasi Dan Kepenggunaan (KPDNKK)"
"Can the government order Muslim restaurants in Malaysia to close during fasting time? Ramadan is the ninth month in Islamic Calendar in which Muslims worldwide will fast. Fasting is where Muslims prevent themselves from eating starting from dawn until sunset. The act of eating before dawn is referred as Suhoor or Sahur and the act of eating during breaking fast at sunset is referred as Iftar or commonly mentioned in Malaysia as buka puasa. While it's pretty common knowledge that Muslims may find themselves in trouble with the religious authorities if they were caught eating during fasting hours, some confusion has been caused by rulings in several states barring Muslim restaurants from operating before 3pm, the most recent of which by Terengganu state exco for Communications, Multimedia and Special Functions Ghazali Taib who stated that Muslim restaurants can only operate after 3 pm during ramadan. It should be clarified that this ruling does not apply to non-Muslim businesses, and that this isn't a new issue as similar announcements have been made in the past, for example in Kedah in 2016. While some might wonder if the government actually has the authority to do this, it should be clarified that... It's up to the STATE government, not the federal governmentFirst of all, we need to understand that the Syariah law differs from state to state. This means each state has their own enforcement agency and a different set of law and regulations. So in this article, ""government"" here means state government and not the federal government. If you are wondering how this comes to be you can refer to Article 74 of the Federal Constitution (in part): (2) Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List. This brings us to the question at hand, can the state government do this? Let's first examine Terengganu. The law that was cited by Terengganu is Section 19 of Syariah Criminal Offences(Takzir) (Terengganu) 2001: Section 19. Disrespect for Ramadhan. Any person who during the hours of fasting in the month of Ramadhan- (a) sells to any Muslim any food, drink, cigarette or other form of tobacco for immediate consumption during such hours; or(b) openly or in a public place is found to be eating, drinking or smoking, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both. and for a second or subsequent offence to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding one year or to both. To explain this, let's break the two subsections above (a & b) and look at them individually: Subsection (b): Affects muslims who openly eat, drink or smoke in public during the fasting period. There are instances where the state authorities have nabbed people for not following this subsection of the law. Subsection (a): This affects people who sells to any muslims food, drinks, cigarette or other forms of tobacco during such hour. The word ""such hour"" here is according to the state authority. If you notice from above, the Terengganu state government set the time as 3 pm. So can the state government do this as accordance to the law? Yes they can. All other states have similar provisions like Terengganu. For example, Selangor. However, it can get pretty confusing... Not how most people would 'tapau' their food. Photo by Muhammad Hatim Ab Manan via NST.To make things clear, there is no specific mention in the law in regards to when restaurants can open and start operating. This was further clarified by Jakim: “Basically, this Act did not mention whether the food stall or restaurant must start their operation after 3pm during Ramadan. The main point is they cannot sell to any Muslim at any time if it is for immediate consumption during fasting hours.” - Jakim corporate communications officer, as quoted by The Malay Mail Online. And although the laws are set by state, the enforcement of these laws are done by the Local Authorities or Pihak Berkuasa Tempatan (PBT) within each state. “Actually that is not under Jakim or state Islamic authorities, that one is under PBT."" - Jakim corporate communications officer, as quoted by The Malay Mail Online. However, this presents a confusing scenario for Muslim restaurant owners as the President of the Muslim Restaurant Owners Association Malaysia told the Malay Mail Online that around 3,000 muslim restaurants nationwide are ""still confused"" in regards to any ""proper guidelines"" for them to comply. Whom can I call for assistance?Since it is up to state jurisdiction, you may sometimes be confused to see why in some states restaurants open at a much earlier time and in some, much later. Luckily organizations such as Persatuan Pengusaha Restoran Muslim Malaysia (PRESMA) can be reached for help. You can call them at +60 3 40448786 or email them at presma94@yahoo.com. You can also check with your Local Authority for further information and clarification."
"True Fitness members, here are some legal options you can consider [UPDATED] [Note: This article will be updated as the event is still ongoing. Scroll to the last section if you've previously read this article. Last updated on June 17th]On June 10th, members of True Fitness gym found themselves facing a possible situation of true fatness when they received an email announcing the closure of all outlets in Malaysia. Aside from the sudden announcement, some members also claim they were recruited just a few days prior to the closure; while others who are paying on an installment basis are still being charged by their banks.Following the confusion with the statement from True Fitness making arrangements for existing memberships to be ""redeemed"" at CHi Fitness, and CHi Fitness denying such an arrangement, True Fitness eventually clarified the relationship in an statement that was sent to members via email:Partial screencap of email sent to members on June 15thHowever, this whole scenario has opened a legal can of worms in terms of whether or not 1) True Fitness' actions have violated any laws;2) If members paying on installment can get their banks to stop charging them; and/or 3) If members can still pursue some sort of legal action. However, this article will not address the specifics (yet) as...There will be a meeting between members and lawyers this weekendThere will be a meeting this weekend (June 17 & 18) at Jaya 33 Mall from 3pm onwards where members can meet with lawyers to discuss the next possible course of action. The location will be in front of the Watsons outlet on the ground floor. This will most likely come in the form of a Class Action Lawsuit - basically when a group of people experiencing similar losses band together to sue the defendant as a group. We spoke to Alex Netto and Chen Yu Szen, two lawyers (and True Fitness members) who are contemplating the class action suit with some questions of our own, but were not able to get answers at the time of writing due to time constraints. However, they informed us that these issues, as well as any other legal questions that members may have, will be addressed at the meeting.If you are attending, do bring along a PHOTOCOPY of your membership agreement/contract and membership card. The legal representatives will not accept the original copies as they cannot guarantee the safekeeping of your document due to the sheer number of copies being handed in. You can also staple them together and write your contact number and email address.You may want to prepare copies to avoid queueing at the only photocopy shop on the ground floorFor those unable to make it and still keen on exploring legal action, you can scan a copy of the above and email it to Alex and Yu Szen at tf2017@dnfn.com.my as soon as possible. If you haven't already, you may also want to consider joining the True Fitness Complaint group on Facebook. Here are the two legal options you can considerAs mentioned, Alex and Yu Szen will be working on a class action lawsuit. The other option you can consider is to take your case to the Malaysian Consumer Claims Tribunal (MCCT), where Domestic Trade (KPNDKK) minister Datuk Hamzah Zainuddin has stated that members can claim up to RM25,000. However, it's important to note that you can only choose either option and not both to avoid any legal conflict. To briefly summarize the pros and cons of both, going the class action lawsuit route would mean that you have experienced lawyers taking up the case. However, there will be costs involved - as there are administrative charges associated with filing a lawsuit - which will be shared among members who are part of the lawsuit regardless of whether or not you win the case. On the other hand, the MCCT is an independent body established through the Consumer Protection Act 1999 - it may be helpful to think of them as a ""private court"" where judgments are binding by law. This route involves an RM5 administrative fee and neither party can engage lawyers - you will be arguing your own case with the guidance of a member of the Tribunal. If you prefer this option, it's best that you do some research beforehand to go in fully prepared. Here are some links to start with: [Read more: Getting to know the MCCT][Read more: MCCT's trial procedure - KPDNKK's official website]"
"Legal Mythbusters: If you hit a car from behind in Malaysia, is it automatically your fault? The mythIf you hit the back of a vehicle with your vehicle, it is always your fault. The backgroundOh no. You've just been in a car accident! You were cruising down the highway, thinking about what to have for dinner, when the car in front of you suddenly lurched to a standstill. You tried to stop, but it was too late: there is a sickening bang as you smash into the back of the car in front of you.Probably not something you'd wanna privately settle. Image from GTSpirit.com You stagger out, stunned, and go to meet the other driver. “It's not my fault!” you protest. “You stopped so suddenly!” But it is, the other driver insists. You hit him from the back, and so, you are automatically to blame.Is it true?Surprisingly.... Here's why.Section 22 of the Malaysian Highway Code - the basis of the ""undang"" test that you take to get your driving license - clearly states: If you collide with the rear of a vehicle in front, it is your fault, because it means you have been following it too closely. Allow at least one cars length between you and the vehicle in front for every 10 mph (~15 kmh) of your speed for reaction and stopping time. Thus at 30 mph (~45 kmh) there should be at least 3 cars length between your vehicle and the one in front. This is particularly important for smaller vehicles like mini cars and motorcycles; a collision is more costly in terms of repair and life for drivers of smaller vehicles. As an additional note, the Highway Code is not just for that test... it's also given legal force through Section 68 of the Road Transport Act 1987.So yeah, it's hard to get clearer than that. You are supposed to keep a safe distance from the cars in front of you, so the accident is your fault. However, it may not be JUST your fault: the driver of the car in front of you may have been negligent (basically failing to take proper care in doing something), and his negligence may have contributed to the accident too. In such cases, a court may rule there was contributory negligence by the front driver, which will affect the amount of damages you may have to pay. The case of Leng Yang Sua & Anor v Ng Yen Ken & Anor [1986] CLJ (Rep) 448 holds that rear end collisions should be decided on their own facts. For example, in the case of Abdullah Karim v Ahmad Abdullah & Anor [1991] 2 CLJ (Rep) 238, the judge decided that the driver in front, who had failed to keep a proper lookout before he stopped his bus to pick up a passenger, was found 25% liable for the collision. The driver behind was held 75% liable as he had failed to carry out his duty to keep a safe distance from him. In rare cases, a court may decide that the vehicle in the front may be solely liable for an accident, as was stated in the case of Kamaruddin Mohd Nor & Anor v Soon Soo Moe & Anor [1998] 4 CLJ Supp 301: “A vehicle at the front may be held 100% liable if the evidence points to positive culpability. If the rear vehicle is not given the opportunity to avoid a collision due to suddenness of entry of the front vehicle on the road or path, be it to cut across, do a U-turn, or even for the purpose of continuing his journey, the blame must be placed on that front vehicle.” According to a source in the traffic police interviewed by ASKLEGAL, the majority of cases where a car accident turned out to NOT be the sole fault of the back driver were in situations where the front driver was changing lanes carelessly. So if this happens to you, you may not be completely at fault at all. So if you are ever in a rear-end collision (hopefully not though!), do your best to identify all the other factors also at play. It may be that the other driver was just at fault as you were. In such cases, having recorded evidence such as from a dashboard camera may help. Note: This answer is based on the legal perspective rather than individual cases. If you come across any rumors or have any questions about how the law works, let us know on our Facebook page or click here to send an email."
"Adakah melanggar pencuri ragut salah di sisi undang-undang Malaysia? Nota: Imej diatas dipetik daripada Info Roadblock Jpj/Polis di Facebook. Tiada kematian dalam insiden tersebut. Artikel ini diterjemah dari Bahasa Inggeris. Click here for English version. Sekarang jenayah ragut semakin menjadi kerap, 7 ke 8 kes sedemikian dilaporkan di KL setiap hari. Sesetengah mangsa akan cuba megejar peragut ataupun orang awam akan bercampur tangan. Kadangkala ada pencuri cedera parah, malah ada yang maut apabila dilanggar oleh mangsa ataupun orang awam. Kebanyakan orang ramai menganggap ini adalah satu pembalasan yang setimpal tetapi undang-undang tidak bersependapat, malah ada kemungkinan mengambil tindakan terhadap mangsa peragut. Tidak menghairankan pekara ini menjadi satu debat yang hangat sekarang. Adakah si mangsa mempunyai hak mengejar peragut dan boleh disumbatkan ke dalam penjara jika peragut menemui maut? Anda BOLEH mengejar dan menangkap pencuri walaupun anda bukan seorang mangsa. Kebanyakan rakyat Malaysia kenal akan sebutan “Citizen Arrest” (Tangkapan Awam) yang dipopularkan dalam siri-siri drama TV Amerika. Dalam Seksyen 27, Kanun Tatacara Jenayah orang awam boleh memberkas seorang rakyat tetapi mempunyai had tertentu. Untuk pemahaman yang mudah, Seksyen 27 membenarkan anda menangkap seorang individu tanpa waran jikalau: Dia melakukan jenayah dimana suspek hanya boleh diberikan jaminan jika mahkamah membenarkannya (jenayah yang tidak boleh dijamin ataupun ""non-bailable offense""), Ini termasuklah kes-kes rogol dan mencuri. Pihak berkuasa hendaklah dimaklumkan serta-merta untuk memberkas suspek secara rasmi. Ini bermakna orang umum boleh mengejar dan menahan suspek buat sementara waktu sehingga polis tiba. Undang-undang memang ada mengatakan bahawa anda boleh membuat tangkapan umum tetapi ini tidak termasuk tindakan yang ekstrim seperti mengejar suspek untuk menangkapnya ataupun melanggar motorsikal mereka. Fahri Azzat, peguam dari firma Fahri & Co menggunakan kes contoh Mohammed Mazis Mohammed Mokhtar dimana beliau melanggar 3 orang pencuri yang merompak keluarganya: “Ini adalah satu soalan sah yang terbuka dimana orang umum boleh membuat tangkapan. [Dalam kes ini] dia mengejar untuk menghalang mereka dari melarikan diri dan memrampas benda-benda miliknya kembali. Dia ada hak untuk membuat tindakan sedemikian” - Fahri Azzat dalam temu bual dengan ASKLEGAL. Akan tetapi ini tidak memberikan alasan untuk orang umum melanggar ataupun memukul suspek-suspek kerana.... Anda BOLEH ditahan jikalau pencuri mengalami kecederaan parah ataupun mati. Dalam satu temu bual rancangan Malaysia Hari Ini yang dikecam hebat oleh orang ramai, peguam Haaziq Pillay mengatakan orang umum tidak boleh melawan penjenayah yang bersenjatakan pisau jikalau pisau sendiri lebih besar. Imej oleh Art Saad. Dipetik dari Kaifang Cartoons di Facebook. Disini aplikasi undang-undang adalah tidak jelas kerana seolah-olah nampak tidak adil buat mangsa yang cuba mempertahankan diri. Banyak salah faham berpunca dari prinsip kekadaran (principle of proportionality), di mana prinsip ini bermakna anda tidak boleh menggunakan kekerasan melainkan untuk mempertahankan diri atau dalam ancaman situasi sekuriti tertentu. Kekadaran dinilai mengikut kes, jadi ini adalah penting kerana satu jawapan tidak mampu menrangkumi kesemua scenario ataupun penjelasan kerana pihak berkuasa akan membuat siasatan sebelum mengambil tindakan mengikut – ia dipanggil fakta-fakta kes. “Makhamah akan meneliti fakta-fakta dan kejadian kes secara spesifik. Apa yang dianggap sebagai pertahanan diri oleh makhamah mungkin tidak sama difahami oleh masyarakat umum” - Peguambela Jenayah Sreekant Pillai, dipetik dari The Sun menerusi The Malaysian Bar. Perbincangan kekadaran mungkin lebih sesuai dibincang sebagai hak anda untuk mempertahankan diri - dimana ada penglibatan senjata yang boleh membawa mudarat – ia masih termasuk tindakan mengejar dan menangkap peragut. Secara contoh, anda mungkin ada hak untuk melanggar motorsikal mereka supaya mereka tidak dapat melarikan diri, tetapi anda tidak boleh menggelek mereka beberapa kali dengan kereta secara sengaja ataupun terus memukul mereka selepas mereka sudah tidak bermaya lagi. Ini termasuk orang umum yang datang menolong mangsa. Ada kemungkinan anda akan didakwa cuba mencederakan secara sengaja ataupun pematian orang (manslaughter) jika pencuri menemui maut. “Dalam beberapa keadaan seperti curi ragut, anda boleh mengejar individu untuk merampas harta anda kembali. Akan tetapi selepas pencuri ditawan dan mendapat harta kembali, anda tidak menggunakan alasan mempertahankan diri jika anda terus mencederakan mereka sehingga mati” - kata Peguambela Jenayah, Amer Hamzah Arshad, dipetik dari The Sun menerusi The Malaysian Bar. Fahri Azzat juga menekankan bahawa memukul dan menghina suspek semasa menunggu pihak berkuasa tiba boleh mengakibatkan dakwaan jenayah terhadap mangsa sendiri: “Walaupun individu tersebut sudah melakukan kesalahan, ini tidak bermakna ia adalah satu pas percuma untuk orang umum memukul ataupun menghinanya. Perlu diingatkan bahawa dia masih belum dihadapkan ke mahkamah jadi praduga yang tidak bersalah sehingga pembuktian kesalahan masih kekal. Ini memang bertentangan dengan sentimen dan emosi kita tetapi kita mesti memberikan suspek penghormatan secara undang-undang (legal respect), jikalau bukan hormat yang biasa. Penghormatan undang-undang bermakna menghormati sistem undang-undang dan proses yang sah. Walaupun dia sudah ditangkap ataupun sedang didakwa, anda tidak boleh mengganggap dia sebagai seorang penjenayah serta merta ataupun menderanya sedemikian. “ - Fahri Azzat. Jika anda menjadi mangsa ataupun mahu menolong mangsa, sila pastikan keselamatan anda dahulu sebelum bertindak! Memang ada tanggapan bahawa undang-undang tidak masuk akal dimana suspek lebih dilindungi berbanding dengan mangsa tetapi perlu diingatkan bahawa undang-undang wujud untuk menghalang warganegara mengambil tindakan vigilantisme. Kadang-kadang tragedi boleh berlaku dalam situasi tersebut seperti satu insiden dimana mangsa dilanggar mati secara tidak sengaja oleh dua orang awam yang cuba menolongnya pada tahun 2013. Nasihat am untuk anda adalah mengekang diri sendiri, utamakan keselamatan sendiri serta orang-orang lain di sekeliling anda, dan hubungi polis.Hafalkan nombor kecemasan 999 adalah satu idea yang bernas ataupun jika anda tinggal di Selangor, anda boleh memuat turun aplikasi MyDistress yang boleh menghantar isyarat kecemasan yang dijejak dengan GPS kepada pihak berkuasa. Aplikasi ini boleh didapati dalam Android dan iOS."
"​Does Malaysia's Home Ministry have the power to suspend The Star (or any newspaper)? On 30th May 2017, the our Home Ministry issued a show cause letter to The Star Newspaper, giving the publication 7 days to explain to the Home Ministry why further actions such as suspension of press should not be taken against The Star. This was all because of The Star’s now-infamous front-page blunder on 27th May.Image from Cilisos According to the Home Ministry, The Star’s front page “was confusing and could lead to misunderstanding and prejudice against Muslims which may be linked to terrorism.” Following the incident, the Home Ministry summoned four editors from The Star for an explanation before issuing a show cause letter. Meanwhile, PERKASA submitted a memorandum to the Home Ministry, demanding the ministry suspend The Star for one year following the blunder. So this leads us to the question...Does the law allow the Home Ministry to suspend The Star? In a nutshell, the law says yes, but the Minister has to do so according to some procedural rules. The law in question is the Printing Presses and Publication Act 1984 (PPPA) which regulates presses and publications - basically any publication or newspaper that appears in print form, including magazines. The requirement of a permit in printing, publishing and importing newspaper is stipulated in section 5(1) of the Act:""No person shall print, import, publish, sell, circulate or distribute, or offer to publish, sell, circulate or distribute, any newspaper printed in Malaysia or Singapore unless there has been granted by the Minister ...“If you print or publish newspaper without a permit, then you have committed an offence under this Act and the punishment could be “imprisonment for a term not exceeding three years or to a fine not exceeding twenty thousand ringgit or to both,” as per Section 5(2) of the Act.The PPPA also confers power to the Home Minister in approving, renewing, revoking and suspending printing and press licenses. Up till 2012, the Home Minister could exercise them in his absolute discretion, most notably in the 1987 Operasi Lalang crackdown in which the The Star and two other newspapers were suspended for several days.Archive entry for The Star during the Ops Lalang suspension. Photo aken at the National Library But the Home Minister must also let the publication defend themselvesWhen it comes to suspending a newspaper permit, section 6(2) of the PPPA says:“The Minister may at any time revoke or suspend a permit for any period he considers desirable.”The law does not provide for reasons or situations in which the Home Minister would suspend a newspaper permit - it depends on the Minister's judgment. He has the power to suspend a permit whenever he considers appropriate to do so. However, the law does limit the Minister’s power through procedural requirements as per Section 13B of the PPPA:“A person who has been granted a licence or permit under this Act shall be given an opportunity to be heard before a decision to revoke or suspend such licence or permit is made…”Basically, this requires the Minister to give an opportunity to the newspaper company to explain themselves before any suspension is made; although it does not stipulate how the opportunity is to be given. This is the reason why the Home Minister summoned the four editors from The Star and issued a show cause letter to The Star - These steps were taken to comply with Section 13B of the PPPA If, for example, the Minister suspends The Star (or any publication) without complying with Section 13B, the publication may bring this matter to court and the suspension may be lifted. This happened with The Edge, which we will elaborate on below.In 2012, the PPPA was changed... Following a 2012 amendment to the PPPA, the Home Minister no longer enjoys “absolute discretion” in performing his powers as previously mentioned. In other words, he still has the powers but his decisions made under 1984 Act are subjected to judicial review (meaning the Minister's decision can be challenged in court).In fact, when the Home Ministry suspended The Edge two years back, the decision was challenged in court. The court ruled that the suspension was irrational and illegal and, ultimately, the Home Ministry was ordered to pay damages to The Edge. This showed that the Home Ministry cannot suspend any press or publication without a valid reason for doing so. Moreover, the case of Mkini Dotcom Sdn Bhd v. Ketua Setiausaha Dalam Negeri [2013] 6 AMR 668 confirmed that freedom of press is a constitutional right under Article 10(1) of the Federal Constitution. When something is a constitutional right, it requires a strong justification in denying it. In this particular case, Mkini Dotcom Sdn Bhd - the company that publishes Malaysiakini - challenged the Home Minister's decision of refusing their newspaper permit application. In quashing the Home Minister's decision, here's what the High Court judge said in his judgment:""... a permit (newspaper permit) that is envisaged under that Act 301, to my mind, relates to freedom of expression, a vital fundamental liberty that can truly claim its genesis under Article 10 of our Federal Constitution"" - Abang Iskandar bin Abang Hashin, Judge, High Court in Malaya,as quoted from the Grounds of Judgment. So what will happen to The Star?Local artist-activist Fahmi Reza's render of how The Star's front page could have avoided the controversy. Image from Fahmi's FB page. Since the investigation is still ongoing, we are not in a position to answer what may happen nor whether or not The Star should be suspended. But as far as the law goes, the Home Minister has the authority to do so and, to his credit, is complying with the provisions in Section 13B of the PPPA.If anything, the suspension of two editors from The Star pending the investigation should perhaps be used as another reminder for publications and editors to not just be more careful when publishing on racial and religious issues, but also be attentive towards layouts as well."
"Apakah tindakan yang boleh diambil jika anda menjadi mangsa penipuan online shopping? [Artikel asal ditulis dalam Bahasa Inggeris. Click here for English version.]Masyarakat kini lebih gemar membeli barangan secara online – lebih mudah dan selesa kerana dapat melakukannya di rumah. Bagaimanapun, tidak bermakna tiada risiko dari online shopping ini... Anda mungkin tidak menerima barangan yang dibeli; atau mungkin barangan yang dibeli tidak sama dengan apa yang dipesan. Berbeza dengan kedai-kedai di shopping mall, di mana anda boleh mendapat refund atau mengganti barangan yang telah dibeli. Biasanya, jika situasi sedemikian berlaku, anda harus terus menghubungi penjual atau market website tersebut (seperti Lazada, eBay atau Amazon). Tapi, sekiranya langkah ini gagal, bolehkah anda boleh mengambil tindakan undang-undang? Pertamanya, apakah masalah dalam pesanan anda? Tindakan yang akan diambil bergantung kepada situasi anda. Terdapat tiga keadaan yang biasa terjadi dalam hal ini: JIKA BARANGAN YANG DIBELI TIDAK SAMPAI KEPADA ANDA ATAU BARANGAN YANG DITERIMA TIDAK SESUAI DENGAN YANG DIPESAN: Mangsa membeli iPhone secara online tetapi sebaliknya menerima mangga kunci. Cerita penuh di Cilisos.my Pertama sekali, anda dinasihatkan supaya menghubungi penjual berkenaan. Biasanya mereka akan membantu menyelesaikan masalah anda dengan memulangkan wang anda (refund) atau mengganti barang tersebut. Membawa kes ke mahkamah sebaiknya menjadi cara terakhir. Beberapa perkara yang anda perlu tahu jikalau kes di bawah ke mahkamah:- Transaksi jual beli yang berlaku adalah dinamakan kontrak. Dengan kata lain, ia adalah suatu perjanjian yang dikuatkuasa oleh mahkamah. Aturannya adalah sama untuk pembelian barangan secara online maupun offline. Jadi, sekiranya penjual bersetuju menerima wang anda sewaktu melakukan pembayaran, telah terjadinya suatu kontrak di situ berdasarkan Seksyen 10 Akta Kontrak 1950 (Tiada versi BM rasmi): “Semua perjanjian adalah kontrak jika dibuat atas kerelaan bebas pihak-pihak yang layak membuat kontrak, untuk sesuatu balasan yang sah, dan dengan sesuatu tujuan yang sah; dan tidak ditetapkan dengan nyata di bawah peruntukan Ordinan ini bahawa ianya batal” Dengan itu, anda sebagai pembeli harus membayar sesuai dengan harga yang ditetapkan manakala penjual pula mempunyai peranan memberi barangan kepada anda setelah menerima bayaran. Penjual dikatakan telah melanggar kontrak jika anda tidak menerima barangan yang dibeli ataupun barangan tersebut tidak berada dalam keadaan sempurna / rosak. [Klik sini untuk membaca artkel tentang kontrak tak bertulis]Apakah akan terjadi sekiranya penjual melanggar kontrak? Berdasarkan Seksyen 40 Akta Kontrak 1950, anda boleh menamatkan kontrak (membatalkan transaksi jual beli). Tambahan pula, Seksyen 76 menyatakan bahawa anda boleh menuntut kerugian dengan, dalam hal ini, mengambil tindakan saman ke atas penjual. SEKIRANYA PENJUAL SILAP MENGGAMBARKAN PRODUKNYA: Warna pakaian di atas menjadi isu suatu ketika dahulu. Imej dari Wired. Bayangkan jika suatu pakaian cantik yang berwarna putih dan emas menangkap perhatian anda dan telah mencabar kewibawaan anda untuk memilikinya. Anda terus membelinya dan menunggu ia dikirm sehari dua. Tetapi ternyata pakaian yang dibeli itu berwarna hitam dan biru! Ini adalah kes kesilapan dalam penyampaian yang bermaksud penjual telah salah menggambarkan produknya yang mendorong anda untuk membelinya. Dalam hal sebegini, anda boleh mengambil tindakan undang-undang terhadap si penjual itu – anda dinasihatkan untuk cuba mendapatkan refund atau penggantian produk terlebih dahulu. Jika penjual itu didapati bertanggungjawab ke atas kesilapan tersebut, anda mempunyai pilihan untuk menamatkan atau meneruskan kontrak: Menamatkan kontrak – Seksyen 34(1) Akta Relief Spesifik 1950 menyatakan bahawa kontrak boleh dibatalkan dengan cara penjual mengembalikan wang dan pembeli mengembalikan barangan yang dibeli seperti tidak berlakunya urusan jual beli tersebut. Meneruskan kontrak - Seksyen 19 Akta Kontrak 1950 menyatakan bahawa jika anda memilih untuk meneruskan kontrak, anda mungkin akan behak untuk mendapat gantirugi, jika mengalami apa-apa kerugian daripada transaksi tersebut. Anda boleh juga memaksa penjual untuk menggantikan pakaian yang telah dihantar itu. Sebab kami menegaskan bahawa membawa kes ke mahkamah adalah pilihan terakhir kerana biaya tuntutan mahkamah adalah mahal dan mengambil masa yang lama kerana terdapat prosedur-prosedurnya tersendiri. Terutamanya jika barangan yang dibeli tidak terlalu mahal, anda pasti tidak mahu meletakkan diri anda di dalam situasi sedemikian, bukan? Namun, terdapat satu lagi cara yang lebih mudah… Anda masih mempunyai cara lain, sekiranya kes terlalu kecil untuk dibawa ke mahkamah Menggunakan perkhidmatan yang disediakan oleh Kementerian Perdagangan Dalam Negeri, Koperasi Dan Kepenggunaan (KPDNKK): Menyuarakan aduan ke Bahagian Pengurusan Pengguna supaya siasatan boleh dijalankan Menyalurkan kes anda ke Tribunal Tuntutan Pengguna Tribunal Tuntutan Pengguna adalah suatu badan bebas yang ditubuhkan melalui Akta Perlindungan Pengguna 1999 - boleh dikatakan sebagai “mahkamah peribadi” atau alternatif kepada makhamah sivil. Cara ini lebih berpatutan dan cepat jika nilai tuntutan anda kurang daripada RM25,000, di mana tidak boleh ada penglibatan peguam dari kedua-dua pihak. Sebaliknya, anda sendiri yang akan membicarakan kes anda di mahkamah dengan bantuan ahli Tribunal. Terakhir sekali, anda harus juga membuat laporan polis, di mana boleh dijadikan bahan bukti di mahkamah maupun dengan Tribunal Tuntutan Pengguna. Pihak polis akan menjalankan siasatan dan mengenakan tindakan kepada penjual di bawah Seksyen 5 Akta Perihal Dagangan yang menyatakan larangan perihal dagangan palsu. Walaubagaimanapun, harus diingatkan bahawa sesi online shopping yang kurang memuaskan dikira sebagai masalah awam, dan pihak polis mungkin tidak boleh (atau tidak akan) mengambil tindakan bergantung kepada keadaan."
"Is there a law for Muslims to have different work hours during Puasa? For many Malaysian office workers, the working arrangement for Muslims during the fasting month of Ramadhan - coming in earlier, working through lunchtime, and/or leaving the office earlier - is a pretty accepted norm. Similarly, many of us dropping by government offices will also need to keep an eye on the change in office hours over this month. Although this is an accepted norm, we might wonder if this is actually rooted in law. The answer for this is really straightforward because.... There is no law controlling office work hours during Ramadan Many of the laws pertaining to the welfare of employees in the office is housed in the Employment Act 1955 (only applicable in Peninsula Malaysia), which mandates your well-being in the workplace by stipulating the number of hours you can work in a day to the minimum required benefits you will receive as an employee of the company. Similarly, it also outlines penalties if these requirements aren't met. However, the Employment Act (or any applicable employment laws) does not make specific mention of work hours or policies for Ramadan. In essence, this means that companies are actually free to outline any changes over the fasting month, or none at all. It's the same whether in the Government or Private Sector One thing to note is that an employer still has the right to ensure that each employee fulfills their work hours and/or obligations as per the employment contract during Ramadhan. However, many will offer some leeway or flexibility during this period as discussed below. For the Private Sector, flexible work hours during Ramadhan is can either be a matter of a company policy, whether through a written memo or common understanding; or on an ad-hoc basis where each employee may inform their boss or HR department on how they can observe their religious obligations while still remaining productive. For most employees in the Government Sector, these hours are mandated by the Public Service Department in the form of a memo circulated to all public service employees - and they do get revised from time to time! In the latest revision from 2016, the Public Service Department reduced the ""lunch break"" from one hour to 30 minutes while allowing employees to leave 30 minutes earlier - meaning that they still spend the same amount of time at work. They also use a system of staggered work hours, or Waktu Kerja Berperingkat where employees can choose or be assigned to a set time to arrive at and leave work throughout the Ramadhan period. Table for staggered work hours. Screencapped from the PSD's memo. Click image for link. If you're unsure, always check! While most Malaysian companies are understanding of their Muslim employees in regards to the fasting month, it can sometimes lead to unnecessary issues when policies aren't expressly indicated. If you're new to the company, policies regarding work hours and practices during Ramadhan may not always be set in writing. In this sense, it may be best to check with other Muslim employees, your boss, or the HR Department. Moreso for the Private Sector, some Muslims may pray more often during this period, so it would be a good idea to inform your boss or HR if you'll be doing this in order to prevent any misunderstandings. Lastly, we wish all our Muslim readers a joyous and blessed Ramadhan, and Selamat Hari Raya in advance :)"
"Can a SECRETLY-recorded confession really be used in Malaysian court? The mythA criminal can be brought to justice if you manage to secretly record him or her confessing his crimes. The background We've all seen this scenario play out in countless movies and television shows like Law & Order, Sherlock, Smallville and 13 Reasons Why. A villain can't resist bragging about all the evil that he's done (or 'monologuing', as Syndrome from the Incredibles would call it). Unbeknownst to him or her, however, a good character has secretly recorded this confession, and will use it to bring the villain to justice; but not after dramatically revealing the hidden recording device! We've seen this so often in popular culture there's even a whole TV Tropes page devoted to it.Also an excuse to show off them abs (if available). Image from Crave Online.Why is this scenario so popular? Mostly, because of how poetically satisfying it is: it's awesome, after all, to see a villain's own pride or stupidity cause his or her downfall.But how realistic is this, like, are you allowed to record someone without them knowing it? And will this recording be admissible in a Malaysian court? Is it true? Here's Why It depends on how the confession is made, and who it is made to.In certain countries, you can be taken to court for recording someone without their permission: Australia, for example, has the NSW Surveillance Devices Act to cover situations like these. Malaysia, however, does not seem to have these laws yet.Confessions of guilt are considered as relevant in Malaysian court proceedings under the Evidence Act 1950, and thus can be admissible. They are helpfully defined in section 17:Section 17 of the Evidence Act 1950 - Admission and confession defined: ""(1) An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned. (2) A confession is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence.""An earlier section of the Act also lays down that sound recordings can be accepted as evidence:Section 3 of the Evidence Act 1950 - Definitions (in part):""(c) any sound recording, or any electronic, magnetic, mechanical or other recording whatsoever and howsoever made, or any sounds, electronic impulses, or other data whatsoever;""For tape recorders, the case of Mohd Ali bin Jaafar lists down several criteria that have to be followed, including that the recording machine must be in proper working order, and the tape not been tampered or altered.Indeed, people have brought secret recordings to court before: it happens quite often in corruption cases, for example this case in Ipoh from 2009 involving a Syariah High Court judge, where a conversation between the judge and a witness was recorded (with the cooperation of the witness and the Anti-Corruption Agency) and shown in court.Yes, this even happened in Robocop - the 1987 version that is! Gif captured from Youtube. There is one huge exception to this: an amendment to the Criminal Procedure Code (section 113) states that not counting a few exceptions, no statement made by a person to a police officer in the course of a police investigation shall be used as evidence. This of course, includes secret recordings, as explained by lawyer Fahri Azzat.""A confession given to the police cannot be tendered in court anymore with the amendment of section 113 of the Criminal Procedure Code. So even if they have it, they cannot tender it. It is only admissible if the accused chooses to tender it himself. That of course will never happen if he has a lawyer."" If a confession is given to an ordinary person then it is admissible. That person can give direct evidence about it, like 'So and so told me that he killed X' - If that person has a recording then that will also be admissible."" - Fahri Azzat, in an interview with AskLegal. One important thing to note, however, is that Malaysian law still allows evidence to be admitted even if it was obtained illegally. (The English cases of R v King and R v Kuruma). More recently, this happened in the case of Anwar Ibrahim, where DNA samples taken from the accused were ruled to be admissible despite being obtained illegally. Note: This answer is based on the legal perspective rather than individual cases. If you come across any rumors or have any questions about how the law works, let us know on our Facebook page or click here to send an email."
"Selain hukuman mati, ini 5 perkara anda perlu tahu tentang undang-undang dadah di Malaysia. [Artikel asal ditulis oleh Joshua Tay, peguam di AmerBON Advocates. Click here for the English version] Di Malaysia, dadah berbahaya sentiasa dianggap sebagai ancaman kepada masyarakat. Mahkamah sentiasa dipenuhi dengan kes dadah dimana seseorang suspek dituduh melakukan pelbagai kesalahan berkaitan dadah - walaupun kebanyakan suspek juga menyatakan bahawa penglibatan mereka adalah secara tidak sengaja ataupun telah ditipu. Oleh sebab itu, sangat penting untuk anda mempunyai asas kefahaman tentang undang-undang dadah di Malaysia, walaupun anda bukan seorang pengguna atau penyeludup.Terima kasih kepada pengumuman di dalam pesawat kerana sering memaklumkan hukuman mati menanti anda jika terlibat najis dadah namun, apa yang mungkin anda tidak tahu adalah…1. Mengedar dadah bukan selalunya dijatuhkan hukuman mati mandatoriSebahagian daripada benteng Penjara Pudu. Imej dari Hype.my.Pengunaan frasa ‘hukuman mati mandatori’ adalah kerana jika seseorang tertuduh didapati bersalah mengedar dadah, mahkamah tidak mempunyai pilihan lain selain menghukum orang yang tertuduh itu mati tanpa mengira tahap kebersalahan atau jumlah berat dadah yang dibawa; seperti di dalam Seksyen 39(B) Akta Dadah Berbahaya (Sebahagian pernyataan, tiada versi BM rasmi):(1) Tiada seorang pun boleh, bagi pihak dirinya atau bagi pihak orang lain, sama ada atau tidak seseorang itu berada di Malaysia - (a)Mengedar dadah berbahaya(2) Mana-mana orang yang melanggar mana-mana peruntukan subseksyen (1) melakukan suatu kesalahan terhadap akta ini dan jika disabitkan kesalahan hendaklah dijatuhi hukuman mati. Walau bagaimanapun, agak mengejutkan apabila mengetahui hukuman mati tidak seharusnya wajib... Perubahan dalam undang-undang hanya berlaku pada tahun 1983.Sebelum ini, hukuman mati kerana mengedar dadah adalah mengikut budi bicara dimana mahkamah mempunyai pilihan untuk menghukum pesalah dengan hukuman penjara selain dari hukuman mati mengikut kesesuaian. Akta Dadah Berbahaya (ADB) telah dipinda pada tahun 1983 sebagai tanda dasar perangi dadah oleh kerajaan Malaysia yang mahukan masalah sosial dan kesalahan berkaitan dadah ini dibasmi. 2. Terdapat tiga kesalahan dadah yang boleh membabitkan anda.Tiga kesalahan berkaitan dadah ini adalah kegunaan peribadi, pemilikan, dan mengedar. Setiap daripada kesalahan ini mempunyai hukuman yang berbeza dan cara mahkamah menentukan jika anda bersalah atau tidak juga berbeza.(i) Kegunaan peribadi (Self-administration), yang diletakkan di bawah seksyen 15 ADB, dianggap kesalahan yang kurang serius berbanding memiliki dan mengedar. Kesalahan ini sering dibuktikan menerusi ujian kimia yang dijalankan ke atas air kencing atau sampel darah orang yang dituduh dan ia membawa hukuman tidak melebihi RM5,000 atau hukuman penjara tidak melebihi 2 tahun.(ii) Pemilikan diletakkan di bawah seksyen 6 atau seksyen 12(2) ADB bergantung pada jenis dadah. Konsep legal bagi memiliki memerlukan tiga asas utama yang akan dibuktikan iaitu jaga, kawal dan tahu. Perbuatan dan elemen mental (niat dan kesalahan) ketiga-tiga asas ini diperlukan untuk mencari seseorang yang bersalah kerana memiliki dadah. Hukuman kerana memiliki dadah boleh berbeza-beza daripada denda ke penjara seumur hidup dan sebatan; bergantung kepada berat dadah berkenaan. Perkara ini akan dijelaskan lagi dalam point ketiga.(iii) Kesalahan paling teruk di bawah ADB adalah mengedar dadah kerana ia membawa hukuman mati mandatori, seperti yang dinyatakan dalam point kedua. Untuk membuktikan kesalahan mengedar dadah, pertamanya pendakwaan perlu membuktikan bahawa anda memiliki dadah berbahaya dan pemilikan itu bertujuan untuk mengedarkan dadah tersebut.Jika selama ini kita bersangka bahawa mengedar dadah merujuk pada menyeludup dadah melepasi pihak kastam, definisi legal bagi ‘mengedar’ telah diterangkan secara terperinci di dalam seksyen 2 ADB (sebahagian):"" ""mengedar"" termasuk melakukan mana-mana perbuatan tersebut: perkilangan, mengimport, mengeksport, menyimpan, menyembunyikan, membeli, menjual, memberi, menerima, menyimpan, mentadbir, mengangkut, membawa, menghantar, menyampaikan, mendapatkan, membekal, atau mengedar mana-mana dadah berbahaya..."" 3. Anda berkemungkinan tidak dibenarkan diikat jamin.Tujuan ikat jamin digunakan adalah kerana perbicaraan mahkamah boleh mengambil masa yang agak lama dan ketika proses tersebut, anda boleh dibenarkan balik ke rumah dengan jaminan atau direman (ditahan di penjara) sehingga tamat perbicaraan. Namun, jika anda disabit kesalahan memiliki sejumlah kuantiti (berat) dadah atau mengedar dadah, ikat jamin adalah tidak dibenarkan.Seksyen 41B(1) Akta Dadah Berbahaya:""Ikat jamin tidak akan diberikan pada tertuduh yang melakukan kesalahan dibawah akta ini-(a) Jika kesalahan itu boleh dihukum mati; atau(b) Jika kesalahan itu boleh dihukum penjara melebihi lima tahun; atau(c) Jika kesalahan itu boleh dihukum hukuman lima tahun penjara atau kurang dan Pendakwa Raya memperakui secara bertulis bahawa jaminan kepada tertuduh bukan dalam kepentingan orang awam.""Seksyen 39A(1) dan 39A(2) di dalam ADB menyenaraikan peningkatan penalti jika dadah yang dimiliki melebihi berat yang tertentu. Sebagai contoh: Jika anda didapati bersalah memiliki diantara 2-5 gram heroin, seksyen 39A(1) menyatakan mahkamah boleh menjatuhkan hukuman penjara 2-5 tahun dan 3-9 sebatan. Di samping itu, jika anda didapati bersalah memiliki lebih dari 5 gram heroin, anda boleh dijatuhi hukuman penjara 5 tahun hingga ke seumur hidup dan minimum 10 sebatan di bawah seksyen 39A(2). Hal ini bermaksud, jika anda bersalah memiliki dadah di bawah seksyen 39A(2) atau mengedar dadah, mahkamah tidak boleh menggunakan budi bicaranya untuk melepaskan anda dengan jaminan tetapi anda akan ditahan reman sehingga perbicaraan tamat. Tempoh tahanan reman boleh menjangkau masa yang lama (tidak kurang dari setahun) kerana proses perbicaraan turut memakan masa. 4. Mendakwa anda ‘tidak tahu dadah tersebut ada di situ’ tidak memberi apa-apa kesan.Dalam kebanyakan kes dimana orang ditangkap dengan najis dadah, mereka akan mendakwa bahawa mereka tidak tahu dadah tersebut ada di situ. Jadi bagaimana pihak mahkamah menentukan perkara itu sahih atau tidak? Bagaimana juga pihak mahkamah menentukan sama ada anda bersalah kerana memiliki dadah atau lebih parah, mengedar dadah?Jawapannya - Prasangka (presumptions).Prasangka adalah pendirian legal yang membolehkan mahkamah untuk menganggap kewujudan fakta tertentu berdasarkan bukti dan sokongan fakta lain. Anggapan yang paling biasa digunakan dalam kes-kes dadah adalah prasangka memiliki/tahu dan prasangka mengedar. Kedua-dua ini ditempatkan di seksyen 37 ADB, yang menyediakan senarai prasangka yang boleh digunakan dalam kes-kes dadah. Untuk meringkaskan bagaimana prasangka memiliki berlaku, bayangkan situasi ini:Anda diminta untuk berhenti dan diperiksa ketika sedang membawa beg rakan. Malangnya, anda tidak tahu bahawa ada dadah yang tersorok di dalam beg tersebut dan anda telah disabit salah kerana memiliki dadah.Dalam kes ini, Timbalan Pendakwa Raya hanya perlu membuktikan bahawa beg itu berada dalam kawalan dan jagaan fizikal anda. Kemudian, prasangka boleh digunakan untuk menganggap bahawa anda mempunyai pengetahuan tentang dadah di dalam beg tersebut dan oleh itu, anda memilikinya.Prasangka mengedar pula bergantung pada berat dadah berkenaan. Jika berat dadah yang dijumpai pada anda melebihi berat sebenar yang ditetapkan dalam seksyen 37(da) Akta Dadah Berbahaya, maka ia boleh dianggap bahawa anda sedang mengedar dadah tersebut. Seksyen 37(da) sebenarnya agak luas, jadi anda boleh mengetahuinya dengan lebih lanjut di sini.Oleh itu, apabila kedua-dua anggapan ini (memiliki dan mengedar) digunakan seiring, ia sangat mudah untuk membuktikan kesalahan memiliki dadah atau mengedar dadah. Caranya: Pihak pendakwa menunjukkan anda mempunyai jagaan fizikal dan mengawal dadah, atau apa-apa di mana dadah tersebut telah berbungkus (seperti kotak, beg, parcel, dan lain-lain). Hal ini membuktikan kesalahan memiliki dadah. Jika berat dadah ini melebihi berat ambang (cth 15 gram heroin, 50 gram Methamphetamine atau 200 gram Cannabis), maka kesalahan pengedaran dadah akan terbukti. Walau bagaimanapun, prasangka ini adalah boleh dihapuskan; dimana anda boleh membawa bukti untuk menidakkan atau menafikan hakikat bahawa anda mempunyai pengetahuan tentang dadah tersebut, atau anda tidak mengedar dadah berkenaan.5. Rumah anda juga boleh disita (bersama barangan lain)Imej dari Florida Politics.Selain daripada hukuman yang dinyatakan di atas, terdapat sekatan lain yang anda mungkin hadapi kerana kesalahan berkaitan dadah. Ini mungkin termasuklah pembekuan atau lucut hak aset (seperti rumah atau akaun bank) di bawah Akta Dadah Berbahaya (Perlucuthakan Harta) 1988 atau Akta Pencegahan Pengubahan Wang Haram, Pencegahan Pembiayaan Keganasan dan Hasil daripada Aktiviti Haram 2001 jika ia boleh dibuktikan bahawa aset-aset ini adalah digunakan untuk aktiviti haram yang ditetapkan di bawah undang-undang ini.Anda juga mungkin menghadapi penahanan tanpa bicara di bawah Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985, di mana seseorang boleh ditahan di bawah perintah menteri bagi suatu tempoh tidak melebihi dua tahun jika dikaitkan atau terlibat dalam pengedaran dadah. Akta ini juga membenarkan menteri untuk menyekat pergerakan anda ke kawasan yang tertentu melalui perintah sekatan.Walau bagaimanapun, ini tidak terhad kepada hukuman keras. Undang-undang ini juga memberi keperluan untuk penagih dadah melalui proses pemulihan dengan memberi tumpuan kepada pembaharuan diri, melalui program pemulihan, rawatan dan pengawasan polis yang boleh didapati di bawah Akta 1983 Akta Penagih Dadah (Rawatan dan Pemulihan).6. Hukuman mati mandatori mungkin akan dimansuhkan.Sejak beberapa tahun kebelakangan ini, beberapa tokoh terkemuka di Malaysia telah berpendapat terdapat keraguan terhadap keberkesanan hukuman mati mandatori dalam menghalang pengedaran dadah dan - tidak berkaitan dengan artikel ini - membunuh. Pada tahun 2012, telah dihuraikan di Parlimen bahawa jenayah pengedaran dadah antara 2009 dan 2011 sebenarnya telah meningkat walaupun hukuman mati mandatori dijalankan. Ini juga menimbulkan persoalan etika: “No criminal justice system is perfect. You take a man’s life and years later, you find out that another person did the crime. What can you do?"" - Datuk Seri Nazri Abdul Aziz, 2012, dipetik dari The Star Online. Terbaru, hukuman mati mandatori sekali lagi mendapat perhatian Menteri Perundangan Azalina Othman yang menggesa kajian semula hukuman mati mandatori. Menurut beberapa laporan berita, kerajaan dikatakan telah bersetuju untuk meminda undang-undang untuk memberikan kuasa budi bicara pada mahkamah untuk mengenakan bentuk hukuman yang lain selain dari hukuman mati. ""The cabinet agreed and decided that amendments be made to Section 39B of the Dangerous Drugs Act by including additional cluses to give discretionary power tot he courts to bestow other sentences, besides the mandatory death penalty, in certain situations."" - Azalina Othman, March 2017, dipetik dari The Malay Mail Online. Tips keselamatan tambahan Berhati-hati dan sentiasa berjaga apabila orang yang tidak dikenali atau rakan meminta bantuan anda menjaga atau membawa barangan mereka. Walaupun ia mungkin tidak sopan untuk memeriksa barangan orang lain, undang-undang mengenakan kewajipan ke atas anda untuk menyemak dan memeriksa jika terdapat barangan seludup. Jangan meninggalkan barang-barang kepunyaan anda tanpa dijaga atau tanpa diperhati di tempat awam. Walaupun anda boleh menggunakan hak untuk berdiam diri semasa siasatan polis, anda dinasihatkan untuk memberikan kenyataan dan memaklumkan kepada pihak polis mengenai butir-butir bahan yang boleh digunakan untuk pembelaan diri walaupun tidak secara khusus diminta oleh pegawai rakaman: Versi cerita anda Pengenalan dan hubungan orang yang menyerah/menerima bungkusan yang mengandungi dadah. Apa-apa bentuk komunikasi diantara anda dan orang tersebut. Mana-mana orang lain yang mungkin mempunyai akses kepada dadah tersebut. Mana-mana orang yang boleh menyokong cerita anda Butiran ini mungkin membolehkan pihak berkuasa untuk menjalankan siasatan terperinci dan juga boleh digunakan untuk menyokong pembelaan anda di mahkamah jika anda didapati bersalah.4) Segera maklumkan pada keluarga atau rakan-rakan anda dan dapatkan nasihat undang-undang jika anda ditahan atau disiasat berhubung kesalahan berkaitan dadah."
"Can I sue someone who promised to marry me (but doesn't) in Malaysia? You’re engaged to the love of your life. The wedding ceremony is set, invitations have been sent, and you’ve even paid the down payment for your new home. But one day, your spouse-to-be breaks it off with no apparent reason. You’re heartbroken and confused. And after reality sinks in, you need a solution for the hefty sum you’ve already spent on the marriage that isn’t going to happen. Can you sue your ex-fiance for the money?The answer depends whether you formed a contract when you promised to marry each other. And one essential ingredient of contracts is your intention to be bound by law. Of course, most people don't follow up the ""I do"" with a ""Yay, now please sign this contract!"". So, in absence of a written contract that's been signed by you and your (now) ex-fiancee, how does the law decide if you both had such an intention?The answer: Presumptions.This will take some time to explain, so if you're looking for a quick answer to the marriage question, scroll right down to the second-last paragraph. Otherwise, let's talk presumptions! Yep, the law can be a bit of an ass. Credit: eagleonline.com Is it a commercial agreement, or social agreement?In many parts of Malaysian law, we follow some English court decisions from a long time ago, which is where we referenced our first laws from. It's from these old English court decisions that we draw two general presumptions for the intention to create legal relations. In Malaysian law, we recognize that usually formal documents show an obvious intention, and it’s difficult to enforce promises made in casual conversation due to a lack of documented proof. However, we’ll later see that there are exceptions to these rules. There are always exceptionsBut let's start off with how presumptions work in these two general rules....Presumption 1: Commercial transactions $$Whenever you perform a transaction, the law presumes you intend to form a contract. After all, buying and selling is really just promising money in exchange for goods and/or services! It’s obvious but worth mentioning: when merchants make business transactions in huge amounts of money and goods, the law must enforce these agreements or we’d be in a whole lot of trouble when Ah Beng one day decides to run off with our goods instead of delivering it. In an old case law, Carlill v Carbolic Smoke Ball Co, the Carbolic Smoke Ball Company made a “smoke ball” that they claimed would cure the flu. They had so much confidence in their product that they promised £100 (a lot of money at the time) to whomever caught the flu after using the smoke ball. Ms. Carlill had been using the smoke ball for a few months, but still contracted the flu. No prizes guessing that the company refused to pay her any money.The test used in court was ""how would an ordinary person understand this"". Have a look at Carbolic Smoke Ball Co's advert yourself! The actual ad from 1892. Credit: Huffington Post UK Read plainly, these are promises made to people to convince them that the company is trustworthy and has a good product. Needless to say, the Court of Appeal decided the £1000 the company set aside for the rewards showed enough sincerity to be bound by law.Presumption 2: Social agreementsWith family and friends, the law assumes that we don’t intend to involve legal consequences. In yet another old case of Balfour v Balfour, a husband promised to give his wife a monthly allowance while his government post abroad kept them apart. Later, after they separated permanently, the husband stopped paying and the wife sued for the allowance.The Court ruled that in favor of the husband because there are promises in social contexts (even those involving money) which do not form contracts, for example: agreeing to take a walk together. The most important factor is again, whether both parties intended to be bound by law.We’ve stuck with this presumption for a century because well, it would be weird if the law controlled parts of our private lives. Imagine a lawyer pressuring mum to buy Little Marcus that toy she promised, or suddenly being called to court for the dishes you didn’t wash... Yeah.If the marriage proposal was a joke, then you probably won't have a caseWhether in commercial or social settings, the actual intention of both parties still matters more. The setting is a convenient pre-filter to quickly resolve the clear-cut cases, and the finer context is looked at for the unusual ones. Here are some exceptions that the court will consider.Exception 1: Clearly avoiding a contractSome of us have run into situations where we’re a “special case” that doesn’t fall within the system. And while the presumption of binding law is helpful in most commercial situations, businesses also require the freedom to create non-binding promises, like Memorandums of Understanding (MoUs). In business, sometimes you don’t know if that deal with your client will be signed (yet), or you might not want to tie yourself down to one supplier for 5 years. In Ayer Hitam Tin Dredging Malaysia Bhd v YC Chin Enterprises Sdn Bhd, it was explained that: ""…when an arrangement is made ‘subject to contract’... it will generally be construed to mean that the parties are still in a state of negotiation and do not intend to be bound unless and until both parties sign a formal contract.""Exception 2: Soured relationshipsAfter a relationship goes wrong, we’re not sure if we can still trust the other person to honour promises. The law is very understanding of this, and will enforce agreements made when parties are not on good terms with each other. In the case of Merritt v Merritt, a couple going through a divorce agreed that the wife would take their matrimonial home if she paid off the rest of their mortgage. She made the payment, but the husband refused to give her the house.It was decided that because they were a divorcing couple, they would want everything cut and dried, and wouldn’t rely on honourable understandings. So the court decided that a binding contract was indeed created.Exception 3: Believing in empty promisesSay you’ve agreed to sell your house to your friend because he said you could rent a room at his place, and after your house is sold, your friend tells you that he can’t rent you a room anymore. This kind of arrangement could be merely a friendly agreement, but is also commonly carried out as business contracts.You’ve made a decision that relies heavily on your friend keeping his promise, to your loss. The law can step in here to protect you. However, if you went to buy a particular company’s shares because your uncle told you “the price can fly soon” though, you’re on your own; the law doesn’t protect reliance on baseless talk.Exception 4: But I didn't mean it!Sometimes we say things we don’t mean, like your friend swearing he'll give his car away if Annie would arrive on time for once. The amusing case of Weeks v Tybald had a father advertising a promise of £100 (this was in the year 1605, so it’s big money) to the person who would woo his daughter and marry her - with his consent, of course. The eventual suitor later sued for the promised amount, but the court ruled against him with the reasoning that the promise was not directed to anyone in particular and was therefore not legally binding. Here's the ruling in 17th Century English:""It is not aver'd nor declar'd to whom the words were spoken, and it is not reason that the defendant should be bound by such general words spoken to excite suitors.""Even when a promise so precise was made it was not considered a contract because this was the kind of statement that we don't seriously mean - it’s just a figure of speech or a joke.So... can you sue someone who promised to marry you?Now that you know some of the conditions under which the law will protect your promises, the quick answer is - Yes, you can.It's all dependent on the facts surrounding the case; and factors like perspective, intention, and the order of events can all affect the outcome. Yet, cases have happened in Malaysia, such as Doris Rodrigues v Bala Krishnan; where Doris sued Bala for breach of promise to marry after Bala married someone else despite the fact that Doris lived with him as husband and wife for several years. Compensation for hurt feelings, ruined reputation, and marriage costs have also been given in the past. The court can also award compensation to punish the promise-breaker almost entirely at their discretion (see Dennis v Sennyah and Tan Siew Hoon v Lee Lap Shun).But still, seek advice from a trained lawyer who can help you reach a settlement.In the end, it's not just about marriage...The takeaway? Keep trusting your friends and family, but look out for yourself first before you try providing for others, and only give away what you can afford to never see again.To conclude with a common example: your friend wants to borrow a lot of money from you. Whether or not you trust her, it would be best to put it in writing if it’s important enough to iron out the details. Also, even when the law is on your side, the practical measure is to settle the matter outside of court, and to be prepared with alternative solutions like holding your friend’s car as security in your agreement. Legal fees are expensive, and court proceedings can take months to settle. Tread wisely! Remember: the protection from contracts is not for when everything is fine, they’re for if things go downhill!P.S: If you're interested to find out what happened in the case laws, they usually require a subscription for online access. We managed to find a few sources for you as linked above, as well as this article which explains a few cases on the intention to contract."
"Do street performers need a license to perform in Malaysia? Many people might think of a career in music, magic, or similar artistic endeavors as performing in a large stadium in front of a cheering audience like a Taylor Swift or Shila Amzah concert; but for many others, their concert venues may be a sidewalk on the streets of KL, performing to people going by their daily activities - called ""busking"". Busking is the act of performing live, be it music, dance, mime, or magic show, on public streets. Music buskers call themselves street musicians, or in Malaysia, Pemuzik Jalanan. There are many reasons why a performer may venture into busking - because they enjoy it, to improve their skills, gain contacts, and for some it's even a legit full time job!Even if your only audience are furry lil' kittens. Image from BoredPanda.But sometimes, these artists get chased off the streets or even face arrest.Why? Because, permits.In general, the laws regarding live entertainment is under the jurisdiction of the state via the municipal authorities, but not all states have relevant laws or legal applications to obtain a busking permit. Kuala Lumpur is one of the few exceptions so, using the Entertainment (Federal Territory of Kuala Lumpur) Act 1992 as an example, provides 1) A definition of what live public entertainment is (Section 2) : “entertainment” includes— (a) plays, operas, pantomimes, variety acts, performances of music, singing, dancing, gymnastics, martial art demonstrations, acrobatics and legerdemain, beauty contests, tableaux, demonstrations, displays and parades, in which living persons take part... 2) Clarifies that payment isn't necessary (Section 2) : ...in any place to which members of the public are admitted with or without payment of money or other consideration; 3) And, perhaps most importantly, requires a permit or license to be performed (Section 4) : (1) No person shall provide entertainment in any place of entertainment unless the Commissioner has granted— (a) a licence in respect of such entertainment…The popular Goldman, a familiar sight on Jalan Bukit Bintang. Image from Flickr via Hiveminer.While it may not be as clear-cut in other states, Persatuan Karyawan Malaysia Rasmi (an NGO that supports local artistes) informed us that it's highly advisable for a performer to seek permission from the authorities, and/or from the owners of wherever commercial places you are busking at. Else, you might end up like Cikgu Man, a saxophonist from Sungai Petani who was arrested and had his equipment confiscated under Section 2 of the Destitute Persons Act 1977 for begging, defined as: "" ""begging"" means any conduct calculated to induce the giving of alms, whether or not there is any pretence of singing, playing, performing, offering anything for sale or otherwise..."" While Cikgu Man and his instrument was eventually released with a warning, it's probably not the kind of attention you'd want from your performance. If you're not in KL, you may want to check with your local municipal authorities first. We've got some listed here:>> Johor Bahru | Subang Jaya | Klang | Nilai | Sungai Petani | Shah Alam | Kuantan You may also need approval from business ownersWhile you will (with a permit) be allowed to perform anywhere that is considered a public area in KL, there have been cases reported where buskers are chased away by commercial business owners (i.e. malls or shops) even if they have permits. This is usually up to the mall’s decision as to when they deemed it not suitable to have buskers around. In most cases, it involves safety or disturbances to their patrons, especially on weekends or days with events going on.DBKL has also started an initiative to request for permits from more commercial locations, to get approval for buskers to perform there. They have also suggested some ""friendlier"" venues for buskers to perform: Jalan Bukit Bintang Lanai Seni, Jalan Tuanku Abdul Rahman Streets near SOGO Jalan Mahkamah Persekutuan (pathways along the river banks) Jalan Petaling Public park areas belonging to DBKL There are also some business owners who are friendly to buskers, and some of them are listed here. However, here's something you may not know about a busking permit from DBKL... To get a permit from DBKL, you need to audition!A street magician performing in Jalan Alor. Image from The Star.Getting a permit isn't as simple as filling up a form - You have to prove your talent before you can be granted a permit. In Kuala Lumpur specificially, this is done by DBKL via an audition or a workshop, which is held once at the end of every year. This year’s (2017) workshop will be held in December, and the application forms will only be made available at DBKL’S Jabatan Kebudayaan, Kesenian & Sukan’s department (Menara DBKL 3), October onwards.The exact date, time and location of these workshops will be announced on various street musicians Facebook group, such as Persatuan Karyawan Malaysia Rasmi , MY Buskers Club (MYBC), Yayasan Artis 1Malaysia and on DBKL Facebook page itself. The workshops also usually feature notable musicians to train music buskers to produce good music, like what they did in 2015 with Karyawan. This can be the determinant to whether or not you get the permit. Simply put, DBKL doesn’t want you performing if you suck. DBKL busking permits also apply for other live performers such as magic shows or mimes. For starters, you can sign up with MYBC as they regularly hold busking festivals and keep their members updated about permits and new laws. Can a non-Malaysian apply for a permit?No, these permits are only available to Malaysians for now. In our phone conversation with the department secretary of Jabatan Kebudayaan, Kesenian, dan Sukan DBKL, they believe it is already a difficult process for Malaysian themselves to earn from busking, so they have to limit the privilege for locals. On top of that, the procedures required in getting performance work visas for foreigners are complicated. Conclusion: The world is NOT a stage!Contrary to Shakespeare's popular (and misunderstood) quote, the world (or Malaysian streets in this case) is not an open stage. If you are planning to perform on the streets of KL anytime soon, you will have to wait until December. The penalty may differ in different states, but generally if you are busking without permits or permissions you will get fined, arrested, and your instruments/ costumes/ props are likely to be confiscated."
"Bolehkah PDRM memeriksa telefon anda untuk mesej politik sewaktu di sekatan jalan raya? [This article was originally written in English. Click here for the English version]Mitos:Pihak polis boleh memeriksa telefon anda (tanpa waran) untuk mencari mesej-mesej yang mempunyai unsur politik atau keagamaan. Latar belakang: Mesej suara dari Rajan Nair yang telah menjadi viral di WhatsApp dan Facebook Sewaktu di sekatan jalan raya, seorang polis telah memeriksa telefon bimbit milik Rajan di mana beliau sedang dalam perjalanan pulang dari Gurun, Kedah – termasuk WhatsApp, mesej suara dan juga SMS. Rajan juga ditanya sama ada beliau aktif dalam politik atau pun tidak. Rajan dibenarkan pergi setelah menjawab ‘tidak’ dan dipulangkan telefon bimbitnya. “Saya menelefon kawan saya yang bekerja sebagai polis untuk bertanyakan tentang hal tersebut setibanya di rumah. Menurutnya, pada masa sekarang telefon bimbit memang diperiksa sekali untuk memastikan sama ada, ada atau tidak mesej-mesej yang berunsurkan politik atau keagamaan. Jika ada, pemilik itu akan dihadapkan ke mahkamah sekaligus merampas telefon bimbit tersebut.” – “Rajan Nair”, diambil dari mesej suara miliknya yang telah diforwardkan. Adakah ini benar? Alasannya:Pihak berkuasa perlu mempunyai sebab munasabah untuk memeriksa telefon bimbit milik pemandu walaupun tidak ada undang-undang spesifik ke atas tindakan sedemikian. Contohnya, jika anda ditahan kerana membawa dadah di dalam kenderaan sewaktu di sekatan jalan raya, memeriksa kandungan telefon bimbit anda boleh dikatakan munasanah kerana ia mungkin membantu pihak polis mendapatkan maklumat tentang kegiatan pengedaran dadah tersebut. [Baca lagi: Bolehkah PDRM memeriksa kenderaan anda sewaktu menjalankan sekatan jalan raya?] Berdasarkan undang-undang, apa-apa pemeriksaan hanya boleh dijalankan sekiranya terdapat waran. Terdapat akta khas dalam hal yang melibatkan pemeriksaan peranti elektronik (telefon bimbit) iaitu Seksyen 247 Akta Komunikasi dan Multimedia 1988 yang menyatakan bahawa harus ada waran untuk melakukan pemeriksaan dan merampas atau menyita. Pengecualian hanya jika pegawai berpangkat inspektor atau yang lebih tinggi mempunyai sebab yang munasabah untuk percaya bahawa kelengahan dalam menunggu waran akan menyebabkan kemudaratan atau gangguan ke atas siasatan (Seksyen 248). Sama juga halnya dalam Seksyen 116(A) Kanun Prosedur Jenayah yang menyatakan bahawa tindakan memeriksa kandungan telefon bimbit dan merampasnya boleh diambil jika pegawai dengan pangkat inspektor atau lebih tinggi mempunyai alasan kukuh untuk mempercayai bahawa seseorang itu terlibat dalam kegiatan jenayah atau kesalahan keselamatan (seperti terrorisme) [Baca lagi: Bolehkah PDRM memasuki kediaman anda tanpa waran?] Dalam hal-hal yang menyentuh tentang isu politik dan keagamaan ini, adalah sukar untuk pihak berkuasa mengambil sebarang tindakan melainkan jika anda memandu dengan meletakkan sepanduk besar dengan tertulisnya mesej-mesej politik atau keagamaan. Bukan sahaja itu, tindakan memeriksa telefon bimbit peribadi seseorang itu sepertinya telah melanggar hak perlembagaan sebagai warga tempatan dalam kebebasan mengekspresikan diri dalam hal-hal politik atau keagamaan berdasarkan Perlembagaan Persekutuan. Berhubung dengan mesej ""amaran"" pada tahun 2015 terhadap pemeriksaan telefon dalam kes 1MDB, pihak polis mengatakan: “Perkara seumpama ini adalah tidak benar sama sekali. Kami mempunyai tugas dan tanggungjawab yang lebih penting daripada memeriksa telefon bimbit..” – Datuk Seri Mortadza Nazarene, Pengarah Jabatan Siasatan Jenayah Komersial, dipetik dari The Star. Bagaimanapun, tindakan boleh dikenakan terhadap anda jika anda menyebarkan berita palsu – berdasarkan Seksyen 233 Akta Komunikasi dan Multimedia. Nota: Kenyataan berikut adalah berdasarkan perspektif undang-undang dan bukan dari kes individu. Jika anda mempunyai persoalan tentang undang-undang atau kemusykilan ke atas suatu berita seperti di atas, anda boleh menyuarakannya ke Facebook kami atau klik sini untuk emel."
"Here's what to do if you get slapped/punched in public in Malaysia [Klik sini untuk versi Bahasa Malaysia] *Note: This article was originally written in September 2017. A couple of months backs, a video of local movie director David Teo being slapped in front of a live audience, cameras, and the Prime Minister went viral. In the incident which took place during the National Transformation 2050 event on May 17th, actor and comedian Sulaiman Yassin slapped David Teo for ""being disrespectful"" towards the PM Najib. You can watch the video here. Image screencapped from Youtube by Free Malaysia Today However, the situation seemed to have been amicably resolved as both parties shook hands at the end of the night, with David Teo saying he was not pressing any charges. But recently, local actor Sharnaaz Ahmad was fined RM1,200 after pleading guilty to punching a Bangladeshi worker at the Kuala Lumpur Golf & Country Club. These incidents bring about a really interesting scenario... what can (and should) you do if someone slaps you in public, even in less high-profile circumstances? Of course this also applies to other forms of physical violence such as punching, shoving, or kicking. So, the first thing to keep in mind is... Do NOT slap the person back! Assuming that you weren't the person who threw the first punch (or slap), it's best to not retaliate unless your well-being is in further danger. Instead, you can take the following measures: Move away from the person. Take physical or evasive action to stop the person from hitting you. Push the person away from you. Find the closest authorities (like the police) and get protection from them. This is to avoid further escalating the situation, and to prevent yourself from getting into legal trouble of your own. While Malaysian law provides you with the right to self defense under Sections 96 - 106 of the Penal Code, there are several exceptions that remain a grey area depending on the circumstances of the case. These include your right to self defense being withdrawn - and possibly having charges lodged against you - if you had the opportunity to contact the police, and the hugely debated clause of not inflicting more harm than necessary on your assailant: Section 99 of the Malaysian Penal Code - Acts against which there is no right of private defence (In part): (3) There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. (4) The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. It also goes without saying that if you were the person who struck out first, then you'll be at the receiving end of of this article. This also applies even if you were provoked into hitting out first. [READ MORE: Why do some Malaysians get arrested for killing robbers in self defense?] First things first, you should lodge a police report For illustration purposes only. Original image from Ipoh Barat Voice. There are two courses of action which you can take - criminal or civil. A police report is required to initiate a criminal investigation. Once the report has been lodged, the police can start investigating into the matter and, depending on the outcome of their investigation, press criminal charges against the person who slapped you. What this means is that the slapper will be charged under the relevant laws and, if found guilty, be punished according to these laws. For example, the person who slapped you may be charged under Section 322 of the Penal Code for voluntarily causing grievous hurt, in which the punishment (Section 323) is a maximum of a year in prison and/or a RM2,000 fine if found guilty. It should also be noted that in some cases, the person doesn't need to actually hit you. A verbal threat followed by a physical action - such as saying ""I will slap you"" and an outstretched hand - can be considered assault. Just saying ""I will slap you"" does not. Section 351 of the Malaysian Penal Code - Assault (in part): ""... Explanation—Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault."" But whether or not the police press charges, the police report will also serve as written documentation which can be used in your next course of action - a lawsuit. Next, decide whether or not you want to file a lawsuit A lawsuit is the civil course of action you can take, meaning that you are taking legal action against the person who slapped you in your own personal capacity. If you are planning on suing the person, there are two options to consider - whether to sue the person while the police investigation is still ongoing, or as a ""backup plan"" in the event that they don't press charges. This is because lawsuits can be expensive and time-consuming, as you will need to hire a lawyer on your own and make time to attend legal proceedings. It might be prudent to first seek advice from a lawyer before initiating a civil suit. If you do file a lawsuit, this will come under tort law. Tort law can be quite complicated to explain, but it's basically an avenue for you to be compensated for personal losses or damage incurred by a third party. [Read more: What is tort law?] Your lawyer will be able to advise you further on which tort to sue under as it highly depends on the circumstances of the case, but a common one in this scenario will be the Tort of Assault. In this instance, the Tort of Assault is similar to its Penal Code counterpart whereby you don't necessarily need to be hit; a verbal and physical gesture alone may suffice. While many might associate compensation from a lawsuit with money, it can actually take other forms; or a combination of both. For example, if you were slapped in front of a bunch of friends and felt deep embarrassment, you can opt to negotiate for a public apology from the person who slapped you during the settlement. This apology can be made on Facebook or - if you want to be dramatic - as a paid announcement in a newspaper. Again, a lawyer can advise you further on this. Lastly, don't forget the witnesses! Whichever course of action you decide to take, it's best if you have an impartial witness to corroborate your version of events. Remember - the person who slapped you can very well deny the incident took place, or say you provoked them into hitting you! The most straightforward way is to get the details of the people who witnessed the incident so that they may give their statements for the lawsuit or the police investigation. A video recording may also help, either from a mobile phone or if there's a CCTV nearby. Again, while it may be tempting to retaliate or give in to a person taunting you to hit them, don't take the bait. Being slapped is one thing, but to find yourself suddenly on the wrong side of the law may be another...slap in the face."
"Can MAS kick you off a flight - like United Airlines? On 9th April 2017, United Airlines bumped (deny a seat despite a confirmed reservation) Dr David Dao from their flight at the Chicago’s O’Hare International Airport. This was because United Airlines needed four passengers to vacate their seats for four United Airlines crew members. Dr Dao was chosen randomly by a computer system but he refused to leave the flight. He was then forcibly removed by the airport security officers, losing two teeth and suffered a concussion and a broken nose in the process. The video clip of his removal went viral on social media. Well, perhaps United Airlines could have handled the situation better; but what they did was legally right. The contract between Dr Dao and United Airlines allows the latter to refuse carriage. But that does not mean Dr Dao has no remedy. According to regulations by the US Department of Transportation Dr Dao as a passenger is entitled to compensation if he is removed involuntarily by the airline, and eventually reached a settlement for an undisclosed amount.Image from MRCTV.orgAnd following this incident, Delta Airlines made the spotlight when they bumped a family off flight from Maui. The family eventually left the plane unhappily, and bought tickets to fly back home on United Airlines – of all airlines! After all these incidents, you might wonder whether MAS or AirAsia can bump you off their flight; and what are your rights as an airline passenger? Yes, MAS can bump you off a flight!Our short answer to these questions: MAS, just like any other airlines, have a lot of leeway in removing a passenger from a plane; but as an airline passenger, you do enjoy certain limited rights. In this article, we bring to your attention a few matters which we think are important for you as a traveler. At the outset, it's important to understand this: When you purchase an airline ticket with MAS, you are entering a contract with MAS. The contract is known as “MAS General Conditions of Carriage”. Once you've clicked the “Yes” button, you have agreed to be bound by all the clauses in that contract. In the Contract of Carriage, we can find all sorts of rules, procedures and regulations that you as a passenger must obey. Since most of us agree to the terms without actually reading the document, we bring to your attention some provisions in the contract, which you may find them interesting![Read more: What happens if you sign a contract without reading it?]Before going into overbooking, let's start with unruly behavior on a plane. Clause 8.1 of the contract lists down 25 situations in which MAS can refuse carriage - i.e. bumping you off their plane together with your baggage. These 25 situations are described quite broadly in the contract clause. For example, Clause 8.1.12 of the Contract of Carriage:“If you have used threatening, abusive or insulting words towards our ground staff or another passenger or a member of the crew of the aircraft.” So, if you want to scold the steward because he brought you the wrong drink, you might want to consider doing that within bounds or, better yet, make a complaint to their customer service department after the flight. Otherwise, you might be denied carriage.Another example is found in Clause 8.1.6:“If you have not obeyed the instructions of our ground staff or a member of the crew of the aircraft relating to safety or security.”So, if the stewardess asks you to fasten your seat belt before takeoff, don’t be naughty and say, “I can withstand the worst turbulence.” Otherwise, they may politely invite you to leave the plane or deny you carriage at the next transit.The story does not just end there. If you are refused carriage under one of the situations in Clause 8.1, don’t go to MAS counters and ask for refund. They will refuse by explaining to you Clause 8.3:“If we have refused to carry you, or removed you from a flight as provided in Paragraph 8.1, we may cancel the remaining unused portion of your Ticket, and you will not be entitled to further carriage or to a refund ...”Of course, we've only focused on MAS's terms for ease of reading, so the conditions for other airlines may slightly differ. But if it's an overbooking issue, then you are entitled to a refund!If it's a situation similar to the one of United Airlines, then the answer is yes. Fortunately, overbooking is not one of the situations under Clause 8.1. It falls within Clause 8.2.2:“If we believe that the aircraft weight limitations or seating capacity may be exceeded, we will decide in our reasonable discretion which Passengers or Baggage shall be carried.”Of course, they won’t include the word “overbooking” in the contract; but Clause 10.5 provides that if you are denied boarding, MAS “shall compensate and assist Passengers denied boarding in accordance with applicable law and our denied boarding compensation policy” The next question is: Which Malaysian laws assure you that this is carried out? Malaysian law says you must be compensatedImage from DialaflightYour right to compensation can be found in the Malaysian Aviation Consumer Protection Code 2016 (MACPC), which is a subsidiary legislation overseen by the Malaysian Aviation Commission. This is the law in Malaysia which stipulates the minimumservice levels and standards that airlines must provide to their passengers.S 11(3) of the MACPC states: “If the number of passengers who volunteer is insufficient, the operating airline may deny boarding to any passenger and shall immediately offer compensation in accordance with the First Schedule.”This provision essentially means that if you are involuntarily denied carriage due to overbooking, then the airline company is obligated to compensate you accordingly. Briefly, in the First Schedule, once denied boarding you are entitled to free meals, internet access, hotel accommodation where necessary and transport between accommodation and airport. Besides, the passenger can also choose between full reimbursement of the cost of the flight ticket or a free flight to their final destination at the earliest opportunity or at a later date. Some other rights you have as an airline passengerIf your flight is delayed for more than two hours, you are entitled to compensation. If your baggage is lost or damaged, or even if it does not arrive on the same flight, the airline has to compensate you. MACPC also obliges airlines to provide aid to persons with disability the moment they step into the airport - you just have to notify them beforehand. In order to better secure your rights as a passenger, we advise you to request for a written statement from the airlines if you’re denied boarding or facing a flight delay of at least two hours; the airlines cannot refuse your request. This is because, once the request is made, section 15(2) of MACPC obliges airlines to provide a written notice setting out the compensation and contact details to their passengers. You have a right to complain!We have discussed the law and regulation on paper, but the disputes between passengers and airlines may not be resolved amicably. If you are unhappy with the airline’s services, lodge a complaint with the airline. If the complaint is not resolved within 30 days or if you are not satisfied with the resolution, you can tell the airline, “I see you in court!” But suing an airline might incur a huge amount of costs, so perhaps the better alternative is to lodge a complaint to the Malaysian Aviation Commission via the complaint page linked here.Lastly, upon knowing that you have all the rights to compensation and complaint; we still advise you to obey instructions given by the airlines, and to not engage in a fight (even verbally) with anybody in the plane. You don't want to win the battle but lose your seat."
"Legal Mythbusters: Can the PDRM check your phone for political messages at a roadblock? The myth: Police can check your phone at a roadblock (without a warrant) for political or religious messages. The background: A voice message has been circulating on Whatsapp and Facebook from a man named Rajan Nair. In the minute-long voice message, Rajan says he was driving home from Gurun, Kedah, when he was stopped at a roadblock. A policeman checked his driver's license and asked for his phone - proceeding to check his Whatsapp, voice, and text messages. The officer then asked him if he was active in politics, and when he replied ""no,"" he was given the phone back and allowed to leave. ""When I got home, I called a policeman friend and he said yes, nowadays they wlll check our phone and if there is any text or message regarding politics or religious, they will [confiscate] our phone and charge us in court."" - ""Rajan Nair"", quoted from forwarded voice message. Is this true? Here's why:While there are no specific procedures or laws pertaining to the searching of someone's phone (or any electronic device for that matter), the general rule is that the police need reasonable grounds in order to do so. For example, if you were caught with drugs in your car during a roadblock, the police may then be justified to look through your chats for information on a possible dealer or supplier. [Read more: Can the PDRM legally check your car at a roadblock?] Where the law is concerned, a warrant is usually required for any form of search. Specifically for electronic devices, the Communication and Multimedia Act 1998 (CMA) requires there to be a warrant (Section 247) in order to confiscate and check your phone. The exception to this is if an officer ranked Inspector or above has reason to believe that waiting for a warrant would compromise the evidence/data (Section 248). Similarly, Section 116(A) of the Criminal Procedure Code also allows the confiscation and search of an electronic device if an officer ranked Inspector or above has reason to believe that you might be involved in organized crime or security offences (such as terrorism).[Read more: Can the PDRM enter your house without a warrant?]But when it comes to posts regarding politics or religion, it would be hard for the police to establish any reasonable grounds unless you're driving around with a giant banner with an offensive political or religious message. Not just that, it can be argued that the act of checking your phone for these messages would infringe on your constitutional rights as a Malaysian citizen to freely express yourself and to hold political and religious beliefs as stated in the Federal Constitution.But the simplest answer perhaps come from the police themselves where, in regards to a similar ""warning"" message in 2015 about the police checking phones for messages related to 1MDB, said: “There is absolutely no truth in it. We have better things to do than check mobile phones..."" - Datuk Seri Mortadza Nazarene, Federal Commercial Crimes Investigation Department (CCID) director, as quoted by The Star. However, what IS true is that you may get in trouble with the law - for example, under Section 233 of the CMA - for spreading false rumors... including this one! Note: This answer is based on the legal perspective rather than individual cases. If you come across any rumors or have any questions about how the law works, let us know on our Facebook page or click here to send an email."
"What happens if you sign a contract without reading it in Malaysia? The business world operates on contracts. Successful business means establishing contractual relationships again and again. In fact, we live with contracts and some of us even sign contracts on a daily basis. Contracts come in many forms. When you are buying your first house and getting a bank loan; you enter a contract with housing developer and the bank by signing and consenting to ""Sale & Purchase Agreement"" and ""Loan Agreement"". These are written contracts. Booking flight tickets online for your family trip? With a press of a button you have agreed to follow all the conditions framed by airline companies. Planning to stay in a five-star hotel during your vacation? All the online payments and bookings are contracts and all you need to do is to click the ""YES"" button. These are electronic contracts. They are contracts because you consented to the arrangement and gave your agreement. According to Section 10(1) of the Contracts Act 1950:""All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object...""Signing contract means establishing legal relationship. With a stroke of a pen, you've made a promise and the law says you have to honour your promises! And if you don't, the law punishes you.But how often do we take time and effort to read the clauses contained in the contracts? More often than not, we would only keep clicking the ‘Yes” buttons, agreeing to every term and condition as long as we get our flight tickets booked and ready. If you've signed a contract, you can't escape itSo, the question is, can you sign a contract without reading it? Well, you can, but doesn’t mean you should! Let me tell you why.Let’s start with the basics, the general rule is this: You are bound by the terms of the agreement you signed, regardless of whether you have read or understood it or otherwise.The 1932 case of L’Estrange v F Graucob Ltd, in which Ms. L'Estrange signed a contract to buy a cigarette vending machine without reading the fine print that excluded the company from any implied warranty. When the machine did not work, she sued to get her money back (and stop paying installments for the machine) but the court ruled against her - explaining the position of the law as such: “when a document containing contractual terms is signed, then, in the absence of fraud or misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not.”So you can see, there is no such thing like you do not understand the terms of the contract and therefore you can escape from it. The law would not allow you to escape so easily! The Malaysian case which relevant would be the case of Polygram Records Sdn Bhd v The Search & Anor. This case emphasized that the you are bound by the contract even if you have not read it, and this is a strict rule!What if the contract is in English, but you don't speak English?You might say, ""Oh like that easy lar, I just say I don’t understand English, and I don’t understand the contract at all because it is written in English and I only speak Hokkien, too bad lor! The contract does not bind me.""The law says you can’t use the language barrier as an excuse, the law doesn’t care if you are Hokkien, Hakka, Teochew, Canton or whatever dialect or language you speak - You signed it, you perform the obligations. This general rule is also found in the Malaysian case of Subramaniam v Retnam, in a dispute regarding a loan agreement. One party was saying he does not understand English, so he could not have understood the terms of the contract. He pleaded that signing the contract was a mistake and that he wants to escape from performing it. At the end, his reason was rejected and the Court decided against him. So what is the lesson we can learn from this case? When you sign an agreement written in a language that you don’t understand, ask the other party, ask your lawyer or even an interpreter about the content of the contract.You might say, ""Walao! The law is so strict and it does not help people to get out of difficult situations!""Well, not exactly. You can escape from the contractual obligations if you manage to to prove that someone forced you to sign it (coercion) or someone cheated you on the terms of the contract (misrepresentation or fraud). Now you know this, if someone forces you to sign a contract by pointing a gun to your head, just go ahead and sign it - Don't risk your life; you can escape the contract later on. In these situations the law helps you because your consent to the contract was not freely given. Section14 of the Contracts Act 1950 provides a guidance too:""Consent is said to be free when it is not caused by—(a) coercion, as defined in section 15;(b) undue influence, as defined in section 16;(c) fraud, as defined in section 17;(d) misrepresentation, as defined in section 18; or(e) mistake, subject to sections 21, 22 and 23."" What if you ""understood"" the contract differently?There may be some instances where a property agent or an insurance agent may verbally explain the terms of a contract to you before you sign it. So happens if what you understood about the terms turned out to be different from what the contract actually says, basically a discrepancy between the actual terms of the contract versus what you believed the terms to be? Then you may try to rely on the defence of Non Est Factum. This defence sounds pretty fancy doesn't it? So what kind of defence is this? Here's the fancy definition: “The defence of non est factum allows a party who has executed a document under a fundamental misapprehension as to its nature to plead that it is ""not his deed"".” - Chitty on Contracts (30th Edition), Volume 1: General Principles.Non est factum essentially means “not my deed”. The plea of non est factum has a powerful name but it is a defence with very little chance of succeeding, making it a weak defence. Basically, this means you are telling the Court this: ""I signed this contract, but it is fundamentally different from what I thought it is, so I don’t want to perform this contract. Let me go!"".In the case of Saunders v Anglia Building Society, the law suggests that in order to succeed in this plea, usually you have to show that you have suffered from disabilities (blindness or illiteracy). Meaning to say, you were left with no choice but to rely on people’s advice as to what you’re signing. Therefore, it is almost impossible for a healthy person with full capacity to succeed in establishing non est factum. In the case of Saunders, a woman Mrs. Gallie relied on others in understanding the content of her contract because her spectacles were broken, and she was unable to find a new pair of spectacles before signing the contract. The Court said no, it was not a reason good enough for her to escape from performing her contractual obligations. So always read your contract!To avoid being in a sticky legal situation, always read the contractual terms carefully before signing them. Don’t forget, we are bound by what we signed! Although there are instances where exceptions may apply, the threshold for succeeding in these exceptions are very high. So even if your spectacles are broken, go get a new pair and read your contract – don’t be like Mrs Gallie! *Please note that some case laws may be copyrighted or unavailable without a paid subscription to law journals. We have provided links that explain these cases on the public domain where available."
"Bolehkah PDRM memeriksa kenderaan anda sewaktu menjalankan sekatan jalan raya? [This article was originally written in English. Click here for the English version]Sekatan jalan raya ada kalanya boleh menimbulkan ketidakselesaan bagi sesetengah masyarakat Malaysia. Walau bagaimanapun, ada baiknya jika kita memahami punca mengapa sekatan ini diadakan, apa yang boleh dilakukan oleh pihak PDRM, dan hak kita sebagai pengguna jika diminta diperiksa.Sebab diadakan sekatan jalan rayaTujuan utama sekatan jalan raya adalah untuk menjamin kesejahteraan dan keselamatan pengguna jalan raya.Berdasarkan kenyataan dari Inspektor Adrian Bin Kadir dari Cawangan Trafik IPD Nusajaya, sekatan jalan raya dilakukan untuk: Mengesan kesalahan lalu lintas Mencegah dari timbulnya masalah jenayah Kesalahan lalu lintas yang dimaksudkan termasuk memandu dengan tidak berhemah dan tanpa dokumen memandu yang sah (Seperti tiada lesen dan / atau tidak memperbaharui cukai jalan) atau memandu di bawah pengaruh alkohol atau ubat-ubatan yang mengkhayalkan. Melalui operasi ini juga, ia mampu mengesan suspek jenyah yang dikehendaki oleh PDRM. Undang-undang berkenaan sekatan jalan rayaImej dari Paultan.orgUntuk memahami hak pemandu dalam sekatan jalan raya, kita perlulah melihat pada enabling provisions terlebih dahulu. Enabling provisions adalah seksyen di dalam undang-undang yang menyatakan bahawa pihak berkuasa boleh mengambil tindakan atas perkara tertentu. Akta Polis 1967 dan Akta Pengangkutan Jalan 1987 banyak menyentuh tentang skop tindakan pihak berkuasa terhadap operasi sekatan jalan raya. Antaranya:Seksyen 26(1), Akta Polis 1967 – ‘Kuasa untuk mendirikan sekatan jalan’:""...mana-mana pegawai polis boleh, jika difikirkannya perlu untuk berbuat demikian bagi memelihara dan mengekalkan undang-undang dan ketenteraman atau untuk mencegah atau mengesan jenayah, mendirikan atau meletakkan atau menyebabkan didirikan atau diletakkan apa-apa sekatan di atas atau melintang mana-mana jalan awam atau lorong atau di mana-mana tempat awam...""Dalam erti kata lain, mana-mana pihak berkuasa berhak menyekat jalan raya untuk mengelak dari timbulnya masalah jenayah disamping menjaga ketenteraman awam.Walau bagaimanapun, pihak berkuasa tidak boleh sewenang-wenangnya mengadakan sekatan jalan raya. Ini termaktub di dalam Seksyen 78(1), Akta Pengangkutan Jalan – ‘Kuasa mengadakan sekatan jalan’:""Walau apa pun yang terkandung dalam mana-mana undangundang lain, mana-mana pegawai polis berpakaian seragam yang diberi kuasa secara bertulis oleh seseorang pegawai polis kanan yang berpangkat Inspektor atau lebih tinggi, termasuk seseorang Inspektor dalam percubaan, atau mana-mana pegawai pengangkutan jalan berpakaian seragam, yang diberi kuasa secara bertulis oleh Pengarah boleh, jika didapatinya perlu untuk berbuat sedemikian bagi penguatkuasaan Akta ini, mendirikan atau meletakkan atau menyebabkan didirikan atau diletakkan apa-apa galangan sebagaimana yang ditetapkan di atas atau melintang mana-mana jalan mengikut apa-apa cara yang difikirkannya patut...""Ini bermaksud, PDRM hanya boleh mengadakan sekatan jalan raya jika terdapat arahan dari pegawai berpangkat Inspektor dan ke atas.Inspektor Adrian mengulas lanjut: “Operasi sekatan jalan raya mesti didirikan oleh lebih dari tiga pegawai polis dan diselia oleh pegawai dengan pangkat korporal atau lebih tinggi. Disamping itu, harus ada papan tanda dengan tulisan ‘PEMERIKSAAN POLIS’ dengan lampu biru berserta kon-kon trafik sewaktu sekatan jalan raya diadakan.” – Inspektor Adrian bin Kadir, sewaktu sesi temuramah bersama ASKLEGALHaruskah kita berhenti sewaktu terdapat sekatan jalan raya?Biasanya, sewaktu memperlahankan kenderaan anda di sekatan jalan raya, pihak berkuasa yang bertugas akan melihat ke dalam kenderaan sepintas lalu dan akan memberikan laluan. Tetapi jika anda tidak bernasib baik, mereka akan memberhentikan kenderaan anda untuk melakukan pemeriksaaan. Persoalannya, adakah perlu kita berhenti? Apa akan terjadi sekiranya kita berlalu pergi sahaja?Seksyen 26(2), Akta Polis 1967 mengatakan bahawa, jika anda tidak patuh kepada arahan pegawai yang mengadakan sekatan jalan raya, hukuman penjara tidak melebihi 12 bulan atau denda tidak melebihi satu ribu ringgit atau kedua-duanya sekali akan dikenakan jika disabitkan kesalahan.Seksyen 26(2), Akta Polis 1967:""Seseorang yang tidak mematuhi apa-apa isyarat yang munasabah yang diberi oleh seorang pegawai polis yang menghendaki orang atau kenderaan itu berhenti sebelum sampai mana-mana sekatan itu adalah melakukan suatu kesalahan dan apabila disabitkan boleh dikenakan hukuman penjara selama tempoh tidak melebihi dua belas bulan atau denda tidak melebihi satu ribu ringgit atau kedua-duanya...""Walau bagaimanapun, pihak berkuasa boleh menganggap bahawa melarikan diri dari sekatan jalan raya adalah satu kesalahan (kemungkinan suspek jenayah ingin melarikan diri) dan ini boleh menyebabkan kemalangan berlaku. Sebagai contoh, kes Sharil Azlan Ahmad Kamil, dia telah mengalami kecederaan akibat lantunan peluru yang dilepaskan ke arah tayar keretanya berikutan dia mengundurkan kenderaannya sewaktu sekatan jalan raya berlaku. Pihak polis mempunyai kuasa memeriksa kenderaan anda!Imej dari The Sun Daily.Sekarang anda tahu, adalah menjadi satu kesalahan jika tidak memberhentikan kenderaan sekiranya diminta. Setelah meletakkan kenderaan di tepi jalan dan memeriksa dokumen perjalanan (Kad pengenalan dan lesen memandu), anda diminta keluar dari kenderaan supaya pemeriksaan dapat dilakukan.Walaupun anda tidak melakukan apa-apa kesalahan seperti membawa barangan larangan di dalam kenderaan, tindakan memeriksa kenderaan ini nampaknya seperti mencabul hak kebebasan pemilik kenderaan. Iyalah, anda tidak melakukan kesalahan tetapi hak peribadi diperiksa pula. Persoalannya, adakah pihak berkuasa tersebut boleh memeriksa kenderaan kita? Adakah perlu ada waran?Menurut Inspektor Adrian, pegawai polis mempunyai kuasa untuk memberhentikan kenderaan dan memeriksa kenderaan mahu pun pemandu serta penumpang. Seksyen 24(1)(b), Akta Polis 1967 menyatakan:""Mana-mana pegawai polis boleh –… memberhenti dan memeriksa tanpa waran mana-mana kenderaan atau vesel yang disyakinya atas alasan yang munasabah sedang digunakan dalam melakukan apa-apa kesalahan terhadap mana-mana undang-undang yang berkuat kuasa…""Hal ini bermaksud, pihak berkuasa boleh memberhentikan kenderaan anda untuk memeriksa sama ada anda mempunyai lesen memandu dan mereka juga mempunyai kuasa untuk memeriksa kenderaan jika disyaki digunakan untuk melakukan kesalahan.Perlukah kita menjawab soalan yang ditanyakan oleh PDRM di sekatan jalan raya?Hanya setakat nama dan alamat peribadi sahaja yang boleh ditanyakan. Kita tidak perlu menjawab pertanyaan selain daripada itu melainkan jika pihak berkuasa tersebut sedang menjalankan proses soal siasat jenayah. Sebagai contoh, sekatan jalan raya diadakan di suatu kawasan di mana sedang berlakunya satu kes jenayah. Pemandu-pemandu yang melalui kawasan tersebut mungkin akan ditahan bagi membantu siasatan.Walau bagaimanapun, anda boleh menolak untuk menjawab mana-mana soalan atau berdiam diri jika jawapannya mungkin mendedahkan anda kepada kesalahan jenayah sesuai dengan Seksyen 112(2), Kanun Prosedur Jenayah (Tiada penterjermahan rasmi) :""…[Orang yang diperiksa] hendaklah menjawab semua soalan yang dikemukakan kepadanya oleh Pegawai itu;Dengan syarat bahawa saksi itu boleh menolak daripada menjawab jika jawapan itu akan menyebabkan ia dibabitkan pada sesuatu tuduhan jenayah atau penalti atau perlucuthakan.""Sekiranya anda berasa hak anda dicabuli, anda boleh menyuarakan aduanDi dalam sebuah artikel perbandingan antara PDRM dan pihak berkuasa Amerika Syarikat, didapati bahawa hak masyarakat Malaysia tidak dilindungi sepenuhnya berbanding di Amerika Syarikat. Tidak semestinya anda harus mengikuti arahan dari pegawai polis bulat-bulat kerana anda juga mempunyai hak tersendiri berdasarkan undang-undang.Jika anda berasa hak anda dicabuli, catatkan masa, tempat dan nombor pengenalan pegawai polis yang terlibat. Aduan terhadap pegawai polis boleh dibuat melalui perkhidmatan aduan SiSPAA PDRM."
"If you lost money in a pyramid scheme in Malaysia, can you get your money back? [This article was originally written with JJPTR as a reference point. Information presented in this article may still apply to other investment schemes.Recently, a gold investment scheme called Royal Gold joined the financial scheme controversy when 80 investors lodged a police report against the company after failing to get the returns on their investment as promised. This came about barely two months after controversial financial scheme operator JJPTR (or 'JJ Poor to Rich') made headlines when several news portals reported that the scheme had collapsed. Investors, who were promised 20% returns on their investments monthly, were unable to log into their accounts on 20th April 2017; and JJPTR founder Johnson Lee and two senior aides have been detained by the police following raids by several government agencies in 8 JJPTR offices in Penang. There may also be a move to freeze the company's assets under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, explained later in this articleImage from The Star. As evidenced by Royal Gold, JJPTR is not the only get-rich-quick scheme around - commonly referred to as pyramid or ponzi schemes. For purposes of this article, we will be using the term ""pyramid scheme"", though you can read more about the similarities and differences here. Since the news broke of JJPTR's collapse, more Forex schemes are reportedly falling apart. In fact, Bukit Aman Commercial Crime Investigation Department's statistics showed a recorded 1,883 cases of investment scams from 2015 until April 2017 that resulted in around RM379.1 million of losses nationwide. It is common to hear of such schemes collapsing and investors losing everything, but not so common to hear about investors getting their money back.Many who have been following the news are perplexed at why investors are not taking stronger action against the operators of the scheme, but instead continuing to have faith in them. Reports show that many investors are keeping silent out of fear they may lose their money. They are worried that the company’s account will be frozen by the authorities if police reports are made. Some are fearful that action will be taken against them for taking part in “illegal activities.”Three big questions arise from this: 1. Are the investors doing the right thing by not going to the police?2. Is there any way to get their money back from operators of these pyramid schemes?3. Is it a crime to invest in a pyramid scheme?In order to answer these questions, we first need to establish the fact that...Pyramid schemes are illegalImage from Computerknacks.Section 27B of the Direct Sales and Anti-Pyramid Scheme 1993 states:(1) No person shall promote or cause to be promoted a pyramid scheme.(2) Any person who contravenes subsection (1) shall be guilty of an offence...Like JJPTR, many of these collapsed schemes were in fact pyramid schemes disguised as forex trading schemes. According to Bank Negara’s website, a forex trading scheme refers to the buying or selling of foreign currency by an individual or company in Malaysia with any person who is not a licensed onshore bank, or who has not obtained the approval of the central bank, subject to the Financial Services Act 2013 or Islamic Financial Services Act 2013. This kind of scheme involves the act of buying or borrowing foreign currencies from (or selling or lending foreign currencies to) a non-licensed onshore bank.Illegal operators usually operate on a small scale and claim they can provide remittance services efficiently, without the need for any documents or identification. They rarely use documents to validate and verify the transactions. By engaging in these transactions, customers run the risk of being cheated and their funds may never reach its intended destination. Are investors in pyramid schemes participating in an ""illegal activity"" ?In cautioning the public against unlicensed forex trading schemes, Bank Negara has listed down some consequences of dealing with unregulated entities or persons:1. Consumer protection under the laws administered by BNM IS NOT APPLICABLE should the members of the public choose to deal with the illegal financial service providers.2. Members of the public who participate in the illegal financial activities could also BE CHARGED under the law as abetting the operators of such illegal activities. To get a better understanding of this, we consulted Nizam Bashir, a lawyer experienced in litigation cases involving, amongst others, fraud and conspiracy: I am not sure about the veracity of item 1. Nevertheless, I am prepared to concede that pursuant to Section 2(2)(g) of the Consumer Protection Act 1999, the Act does not apply to trade transactions effected by electronic means. As for item 2, the statement appears to be somewhat misleading. Co-organisers and their employees can be charged. But I don't seem to see a section in the Financial Services Act, 2013 or Direct Sales and Anti-Pyramid Scheme 1993 prohibiting members of the public from making deposits and/or investments in such companies. Conversely, Section 27B of the Direct Sales and Anti-Pyramid Scheme 1993 states that ""no person shall promote or cause to be promoted a pyramid scheme."" Quite telling in my view that the law is skewed against administrators or operators of pyramid scheme. - Nizam Bashir, Nizam Bashir & Associates, in interview with ASKLEGAL. In Nizam's view, those who have invested money need not fear because there still are avenues through which they may recover their money.Recovering the money through contract lawImage from JJPTRBank Negara has outlined how illegal forex trading schemes are typically conducted: Investors are also required to sign a business contract which is normally entered between the investors and a principal company overseas. In most instances, the operators will inform the investors that they will have to send these contracts to its principal company overseas for signing. However, such contracts are usually left unsigned. As such, in the event the investors are unhappy with future dealings and transactions, no action can be taken against the company as there is no binding contract between them. [Read more about how a contract can come into existence] Lets suppose for a minute that a contract exists. If it is an illegal scheme (not approved by Bank Negara,) this contract becomes a “void agreement” or an agreement which is not in existence from the very beginning. Under Section 24 of the Contracts Act (in part):""The consideration or object of an agreement is lawful, unless —(a) it is forbidden by a law;(b) it is of such a nature that, if permitted, it would defeat any law ...The effects of a void agreement is such that the contract is not enforceable by law, and any person who has benefited from it must compensate the person on the losing end. This is stated in Section 66 of the Contracts Act 1950 : ""When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under the agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.""In other words, because the contract is void, operators of such schemes will have to compensate the investors. Compensation in this case would come in the form of damages. Damages is basically financial compensation. The aim of the court, in awarding damages, is to place the party who has suffered loss due to the breach of contract, in (as much as possible) the same position as he/she would have been in if the breach had not taken place.If there was no contract, Nizam Bashir is of the opinion that investors may still bring an action under Tort Law. In a nutshell, the purpose of Tort Law is to compensate people who have been hard done by and they may be applicable even in the absence of contracts. These laws are there to make sure people behave cautiously (especially when it’s possible for their actions to injure other people). [Read more: What is Tort Law?]However, in order for this to happen, investors first need to initiate an action against the operator, which bring us to the next point: What options do investors have if they want to recover their money?1. Make a police report, let the authorities investigateImage from The Malay Mail OnlineMany investors are reluctant to make a police report out of fear that they would not be able to get their money back if the authorities take action and freeze the scheme operator's accounts. The fact is, the freezing of accounts may be the best chance investors have of seeing their money again.""Initially, many people who lost money in such scams would want to lodge police reports but later, they would be stopped from doing so or threatened by other investors who didn’t want to ‘lose’ their money. But please lodge police reports."" - MCA Public Services and Complaints Department head Datuk Seri Michael ChongMaking a police report is the first step to kick off an investigation into the matter. It also enables law enforcement agencies to freeze the assets or seize the properties of the illegal operators pending an outcome to the investigation. The reason this is good for investors is because there is no point trying to recover the money if the operators have managed to dissipate their assets before the investigation is completed. Under Section 44(1)(a) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLATFA):44. (1) Subject to section 50, an enforcement agency may issue an order to freeze any property of any person, or any terrorist property, as the case may be, wherever the property may be, and whether the property is in his possession, under his control or due from any source to him, if—(a) an investigation with regard to an unlawful activity has commenced against that person...Bear in mind, the timelines for obtaining a freezing order will depend on the enforcement agency that is in charge of investigating the case. In addition, an order issued under Section 44(1) is only valid for a period of 90 days if the perpetrator is not charged in court with an offence under the ALMLATFA. The Section implies that if the person is charged, the freezing order will remain in force until the conclusion of the trial. 2. See a lawyer, commence legal action.While you can engage a lawyer of your own, it can be a pretty expensive affair. To keep legal costs under control, investors may also sue the operator(s) as a group (Class Action Suit). This process can be outlined as follows:Step 1: File a police report.Step 2: Gather other investors together. Pyramid schemes rely on members recruiting other members, so there should be a network in place. This can also be done easily via a WhatsApp chat group to keep everyone in the loop. Step 3: Set up a meeting with an experienced lawyer. Any interested parties can attend, or the group can also send representatives and be updated later via the group chat. The lawyer will be able to look through any relevant documents and advise investors on steps to bring legal action. Alternatively, those interested in finding out more about initiating a Class Action Suit can also fill in this form. An independent team (not affiliated with AskLegal) will then contact those who have registered an interest to get the ball rolling. Moral of the story: Be careful when investing!For various reasons, making money grow is an important part of life for many people. With knowledge on how challenging it can be to deal with unscrupulous operators of illegal schemes, it is imperative for any investor to do thorough checks before putting their money anywhere. There are two relatively easy ways you can do this:Bank Negara's Financial Consumer Alert ListIn the case of JJPTR and Royal Gold, a quick check on Bank Negara's Financial Consumer Alert list would have revealed that the scheme is illegal under the relevant laws and regulations administered by Bank Negara. In fact, Royal Gold had been on the list since 2012 - the same year the company was incorporated. Do a background check with the Companies Commission (SSM)On May 1st, the company behind JJPTR, JJ Global Sdn Bhd, was revealed to be a ""RM2 company"" registered with the Companies Commission of Malaysia (SSM). Investigations showed that JJ Global Sdn Bhd, set up in 2015, had also failed to file its financial accounts with SSM since it was formed. If you're putting your money into a company that's promising substantial returns, you should ensure that it is well-managed, with substantial capital to begin with. But most importantly, you should also be extra careful when someone is offering incredible returns that even the best financial managers in the world would not be able to achieve (e.g. 20% - 35% return on investment monthly.) As the saying goes, if it sounds too good to be true, it probably is."
"Getting rape or death threats on Whatsapp... Will Malaysian laws protect you? Note: This article was originally written in May 2017. Considering that instant messaging has become the primary form of communication for many Malaysians, it probably wouldn't be too surprising to learn that applications such as WhatApp, Facebook Messenger, or WeChat have also been misused in a multitude of ways - from sharing false rumors to cyberbullying. Unfortunately, while Malaysia has laws such as the Communications and Multimedia Act 1998 and the recently-passed Sexual Offences Against Children Bill that provide certain guidelines on what can and cannot be done online, the majority of problems related to cyberspace remain a legal grey area; although it has to be mentioned that this is a problem faced by governments around the world. The speed in which technology has progressed in recent years has proved problematic for governments, especially in areas where the law is concerned since the law is ""at least five years behind technology"" according to Andrea Matwyshyn, a US professor studying the interaction between law and technology. In this article, we will be focusing on chat applications - specifically on what you can do if someone sends you a harassing or threatening private message or, in a recent incident that happened in a local college, if you find out people have been making crude remarks about you in a chat group. Let's start with something a little more straightforward... You can make a police report or sue the person For the most part, we usually understand that comments such as ""I'mma kill you"" or ""Sila meninggal"" aren't meant to be taken literally, but there might be certain situations in which you might find these statements to be a little too real (as in amounting to an actual threat). In such a situation, you may be able to lodge a report to the police and/or the Malaysian Communications and Multimedia Commission (MCMC) where it will be investigated as a crime. Depending on the outcome of the investigation, the person who sent you the messages may face a charge under Section 211 or 233 of the Communications and Multimedia Act (CMA). For example: Section 211(1) of the Communication and Multimedia Act - Prohibition on provision of offensive content: ""No content applications service provider, or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person."" It is also worth noting that certain ""regular"" Malaysian laws may still apply even if they weren't specifically written for the digital space like the CMA. For instance, a person who shares a seditious message on Whatsapp or on Facebook can be concurrently charged under the CMA and the Sedition Act, such as in the case of Khalid Ismath over his social media posts regarding the Johor royal family. Similarly, if your friend sends you a Whatsapp message threatening to kill your family and burn your house down if you don't lend him money, he may be charged twice - once under the CMA and another under section 503 of the Penal Code for criminal intimidation. But again, every situation and circumstance is different from a case-to-case basis. If the police can't establish a valid case to press criminal charges and/or if you prefer to seek personal compensation, you can also take up a lawsuit against the person who sent you the message under tort law. You can read more about the specifics of tort law here, but the basic explanation is that if you can sue someone if your experience fulfills the 'ingredients' of a particular tort. So for example, if someone sends you unsolicited nude images and sexually explicit messages despite you asking them to stop, you may be able to sue them under the tort of harassment. Torts can be rather complicated, so it would be best to seek advice from a qualified lawyer first. But what if the messages weren't sent to you directly? Image from Says.my While the examples listed in the point above were for direct interactions (i.e. the messages were sent to you directly), the situation gets complicated when layers of separation are involved. For instance: What if someone makes a harassing remark about you in a private chat which you were not a part of? If you were to share this conversation on social media, can you get in trouble for it even though you're the subject of the conversation? As previously mentioned, the law does not always address the specific aspects of how modern technology is used so we spoke to two criminal lawyers - Fahri Azzat from Fahri & Co and Joshua Tay from AmerBON Advocates - for their legal opinions. We should mention that because the law is still developing in this area, some of their views may slightly differ and should not be considered legal advice. A lot of these issues have to do with privacy and free speech, as Fahri pointed out: ""Before SMS/Chats came into existence, we had to say things to each other in person and whomever was not part of it did not hear it except when it's reported by someone else or though hearsay. Now that they're recorded (by text or voice clip), the exact conversation can be forwarded and read by others. I recall an incident about an American millionaire whose wife recorded and broadcast some racist remarks he made while in his own home. I had mixed feelings about that incident - sure racism is bad but surely I'm entitled to say whatever I like in the comfort of my own home to family or friends. He had no intention to broadcast it but was skewered for it. Fair? Just? It's so hard to tell what exactly that is these days."" - Fahri Azzat, in email interview with ASKLEGAL. So in an instance where a lewd statement was made about you in a chat group that you weren't a part of, Fahri and Joshua are of the opinion that there may not be a legal basis for a criminal or civil suit depending on the context of the statement. For example, if the statement happened in a group set up for the purpose of discussing girls (which you're not a part of) and was obviously a joke, it may not be seen as an offense under Section 233 of the CMA, which requires an element of intention: Section 233(1) of the Communications and Multimedia Act (in part): ""...any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person..."" Conversely, if you were to share screenshots of this conversation on social media, the people in the chat group are also unlikely to be able to take legal action against you or the person who shared the conversation for breach of privacy. However, they may be able to take up a case if the statement isn't true or is defamatory. ""The right to privacy in Malaysia is still in its infancy. There is no express provision guaranteeing you this right, but it can be argued as being part of the right to life. I don't think any action can be taken [by the people in the chat] unless it's not true or defamatory."" - Joshua Tay, in email interview with ASKLEGAL. ""No, I don't think so. There was no undertaking to keep the conversation private although it may have been implicit but even then it was probably not articulated"" - Fahri Azzat. Regardless, it may be best to make a police report While it's sometimes hard to judge a person's intent through text, if you feel sufficiently threatened by a message, you should make a police report regardless. This would enable an investigation (if any) and the police report may also serve as proof should you decide to take the matter to court. Here are some things to consider beforehand: 1) Having proof of the conversation (like screenshots) would make it easier for the police to kickstart an investigation. 2) Posting the conversation on social media may help raise awareness and, to a certain degree, the social shaming that ensues may prove far more effective than any potential legal action. However, do take into account the context of the conversation and take steps to verify that the authenticity of the conversation (if the screenshots were sent by someone else) to ensure that you don't end up being sued for defamation instead. You may also want to blur out names and/or pictures. 3) Seek advice from a trained lawyer if needed. In cases of sexual harassment, organizations such as the Women's Aid Organisation or the All Women's Action Society (AWAM) can also advise you further."
"Did you know you can be taken to court for something that is NOT a crime? A tort is a kind of wrongdoing that you can be sued for, sometimes due to no fault of your own! If you ask around, many people might not know what the word “tort” means; or they might think you’re referring to a type of dessert. The thing is, you’ve probably come across plenty of torts on a daily basis. Think about those news articles about people who are looking for compensation from others who have done something wrong to them. Neighbours suing each other for making noise, celebrities suing tabloid magazines for defamation - that’s tort law in action. The word “tort” simply means “wrongdoing” but this kind of wrongdoing can either give you a reason to sue, or get sued. Tort Law is quite a complex area, but in this general guide, we’ve tried to simplify things to a need-to-know basis, so that you can get an overview of tort law and learn about how it can affect you in every day life.[You tort it was this, didn't you?] How are torts different from crimes?The main difference between torts and crimes is that in tort, the aim is to compensate the injured party. In crime, the aim is to punish the offender. In criminal cases, it’s the government who will charge someone for a wrongdoing, not the person who has suffered the injury. We can put this in perspective using this example:Say you go into a shop and ask the shopkeeper if they sell hammers. The shopkeeper has just had a fight with her boyfriend and seeing you reminds her of him for some reason. She gets angry and takes it out on you by throwing a hammer at you. The hammer hits you on the head and you have to be taken to hospital where you incur medical bills, loss of wages, pain and suffering. If you bring a case under tort law, you would be suing the shopkeeper in a civil case to get her to compensate you for all the losses you have suffered. This will be the only punishment and she will not go to jail. However, if you call the police and have them arrest the shopkeeper, it becomes a criminal case. It is then up to the state whether to press charges or not.[You will need an MC after Hammer Time]You should know that suing someone in Tort is also different from suing for a breach of contract. This is because a contract involves all parties agreeing on a bunch of terms. However, under Tort law, there is no need for a contract because these laws are there to make sure people behave cautiously (especially when it’s possible for their actions to injure other people.) In other words, they require all people to act reasonably when going about their daily lives. So how does it work? There’s a basic formula for determining whether someone has committed a Tort. First, there must be an act or omission (failure to act) by the wrongdoer which causes damage to you. This damage must be caused by the fault of the wrongdoer and must be the kind of harm recognised by law (e.g. personal injury, loss of income etc.)The most common example of this is a car accident:A drives his car carelessly on a pedestrian walkway and hits B, causing injuries to B. The act is A driving the vehicle. This act has caused damage to B. The damage was as a result of A’s carelessness, i.e. his fault. The injury suffered by B, personal injury, is recognised by law as attracting liability. A will be liable to B in the tort of negligence and B will be able to recover damages.How can torts protect me? The purpose of torts is to protect your interests, to make sure you can gain compensation if you have been hard done by, or to stop someone from doing something which negatively affects your interests. There are many kinds of interests protected, but we’ve listed out some of the more common ones that you may find easy to relate to: 1. Personal security If someone threatens to hit you and makes a gesture to that effect, you may have an action in the tort of assault. If they actually hit you, then you may have an action in the tort of battery. There is a common misconception that you are assaulted if someone physically hits you but this is incorrect. Section 351 of the Penal Code defines Assault as follows:Whoever makes any gesture or any preparation, intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.The section provides an explanation and illustration of Assault:Explanation—Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.ILLUSTRATIONS(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z. A has committed an assault.Generally, if someone causes personal injury to you by accident, or negligently, you may have an action in the tort of negligence. In order to win a negligence case, the plaintiff (or the person injured) must prove the following four elements to show that the defendant (the person allegedly at fault) acted negligently. Duty - The defendant owed a legal duty to the plaintiff under the circumstances Breach - The defendant breached that legal duty by acting or failing to act in a certain way Causation - It was the defendant's actions (or inaction) that actually caused the plaintiff's injury Damages - The plaintiff was harmed or injured as a result of the defendant's actions. Going back to the car accident example earlier, drivers have a DUTY to other road users. If they do not drive carefully, they are in BREACH of that duty. By driving dangerously, they can CAUSE injury to other road users, and this can result in injury or DAMAGES.2. Property The law recognises that if you own property, you have the right to use and reside on your property in peace and comfort. You also have the right to maintain the condition of their property. If anyone interferes with these rights, you (as the property owner) may bring legal action under the tort of private nuisance. Examples of private nuisances that interfere with the peaceful enjoyment of your home include: foul odors, smoke, dust, and loud noises.There’s also something called an “attractive nuisance” which is a kind of danger that is likely to lure children onto someone’s land. For example, someone who has a swimming pool on his property has a legal obligation to take reasonable precautions, such as erecting a fence, to prevent foreseeable injury to children.Examples of private nuisances that can affect the condition of your land or property include: vibration or blasting from a neighbour’s renovation, destruction of crops on a farm, or pollution of a water supply. [Image from The Star]Even though these are common examples that most people might have experienced, you should not be rushing off to see your lawyer yet because it’s not as straightforward as it looks! To determine whether someone is guilty of a private nuisance, a court will examine three factors: Did the defendant do it intentionally to cause harm? Is the plaintiff being overly sensitive compared to an ordinary member of the community? Was the defendant's conduct reasonable? A lot of the time, the things we do may also a nuisance to others but we may not realise it. In this respect, the courts will try to balance the interests of both parties to see if the defendant’s conduct was really unreasonable. 3. Reputation and privacy The tort of defamation exists to protect reputations and privacy. It’s one we’ve all heard about a lot in mainstream media, usually involving celebrities of other powerful people. Broadly speaking, defamation is the untrue statement of a fact that is published to a third party, causing injury to the claimant. In the context of the Defamation Act 1957, defamation is defined as an allegation that may lower the standing of a person in the eyes of the general public and cause the person to be hated, insulted or ridiculed. The defamation may affect his reputation in his trade, business or profession.Apart from financial settlements determined by the courts, defamation cases can also be settled amicably outside the court. Section 7 (1) of the Defamation Act 1957 states that “A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends.”For example, in October 2015, former opposition leader Datuk Seri Anwar Ibrahim filed a defamation suit against the New Straits Times and three others over allegations that Anwar had paid Karpal Singh RM50 million by cheque as a legal fee to bribe judges and prosecuting officers. In January this year, the case was settled when Anwar agreed to accept a public apology. Exceptions to the ruleWhile you may be able to relate to some of the scenarios listed above, before you make an appointment to see your lawyer, you should be aware of some exceptions to the basic model of tort:1. Sometimes you don’t need to establish fault in order to sue.These are known as ""strict liability torts."" A good example of this is product liability in the case of defective products. A product is considered defective if it is designed or manufactured improperly, or if it does not contain sufficient warnings of dangers. Say you buy a toaster. When you plug it in and turn it on, it explodes, causing you injury. The store that sold you the toaster can be sued, even though they were not the manufacturers. This is provided for under Section 68 of the Consumer Protection Act 1999 which states:Section 68. Liability for defective products(1) Where any damage is caused wholly or partly by a defect in a product, the following persons shall be liable for the damage: (a) the producer of the product; (b) the person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product; and (c) the person who has, in the course of his business, imported the product into Malaysia in order to supply it to another person.2. Sometimes you may suffer damage, but cannot sue.This is a situation where damage has been caused as a result of a wrongdoing/tort, but the injured party cannot sue because the law does not protect the kind of injury they’ve suffered. Say you are an operator in a food court and someone opens up a goreng pisang stall right next to yours. As a result, you experience losses in terms of revenue. The new goreng pisang seller has done no wrong because lawful business competition has taken place. To recover your losses in this situation (known as ""pure economic loss"") would require you to prove that your competitor owed you a duty to prevent your losses, and the courts will take a number of different factors into consideration. It is not enough to say that it was foreseeable that you would have suffered these losses as a direct result of the competition. 3. Sometimes you can sue even if the wrongdoer has not caused you any damage.This happens when there is an infringement of an absolute private right. For example, if someone walks on your personal property without permission, they would have committed the tort of Trespass to Land. Trespassers are at fault not only for entering, but also if they remain on the property without permission (e.g. if they are squatters), or if they put any objects or structures (e.g. wooden houses/shacks) on the property. This tort is actionable per se which means that even if the trespasser didn't cause any damage to your property, you can still sue them for committing the trespass.So as you can see tort law is present in many facets of our daily lives. It’s not easy to understand everything about torts and this article serves as a brief introduction to this fascinating area of law. We will be covering more specific situations involving tort law in the near future. In the meantime, if you think you can relate to any of the situations we’ve highlighted, or if you are thinking of bringing legal action against someone, we would strongly advise you to first exhaust all non-legal remedies.It goes without saying that lawsuits can take a long time and cost a substantial amount of money. While legal action will be necessary in some cases, where possible, it may be better to try to resolve the matter without legal action. This is especially so in regular cases of nuisance or trespass. If you have a noisy neighbour, why not try voicing your concerns to them directly in a peaceful way? If that is not possible, you might also try contacting your local council or residents’ association to step in and help resolve matters. However, if you have already exhausted these avenues, then you should seek legal advice in order to figure out how to deal with your specific situation. Good luck!"
"It's not just the death penalty. 5 MORE things you need to know about Malaysia's drug laws This article was written by Joshua Tay, a criminal lawyer with AmerBON Advocates. In Malaysia, dangerous drugs have always been treated as a bane to society. The courts are usually swamped with drug cases where people stand trial for committing various drug related offences - some of them claiming their involvement was accidental or that they've been duped. In view of this, it is important to possess a basic understanding of the drug laws in Malaysia, even if you don't do drugs. We all know that the penalty for drug trafficking is death thanks to plane flight announcements, but what you might not know is... 1. Drug trafficking didn't always carry the mandatory death penalty A section of the old Pudu Prison wall. Image from The Prohibition Post via Hype.my. The use of the phrase “mandatory death penalty” is because if an accused person is convicted of drug trafficking, the court has no other choice but to sentence the accused person to death regardless of the degree of culpability or the amount of the drugs he/she carried; as per Section 39(B) of the Dangerous Drugs Act 1952 (Quoted here in part) : (1)No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Malaysia – (a)traffic in a dangerous drug… (2)Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death. However, it might be surprising to learn that the death sentence wasn't always mandatory ... the change in the law only happened in 1983. Before that, the death penalty for drug trafficking was discretionary, meaning that the court had the option of sentencing you to a prison term instead of death in certain circumstances. The Dangerous Drugs Act (DDA) was amended in 1983 as a by-product of the government's war-on-drugs policy to stamp out the mushrooming social problems related to drug offences. As of 2018, the law has now been amended to change the mandatory drug penalty to discretionary once more. You can read more about it here. 2. There are 3 drug offences you can get in trouble for The three common offences are self-administration, possession and drug trafficking. Each of these come with different punishments and ways in which the court can determine if you are guilty or not. (i) Self-administration (basically for private use), which is governed under section 15 DDA, is considered the least serious offence compared to possession and trafficking. This offence is often proven by chemical tests conducted on the urine or blood sample of the accused person and it carries a fine not exceeding RM5,000.00 or an imprisonment term not exceeding 2 years. (ii) Possession is governed under section 6 or section 12(2) DDA depending on the type of drug. The legal concept of “possession” requires three main ingredients to be proven - Custody, control, and knowledge. These three ingredients form both the act and the mental element (the intention or knowledge of wrongdoing) necessary to find someone guilty for possession of drugs. The punishment for drug possession could vary from a mere fine to life imprisonment and whipping, depending on the weight of the drugs in question. This will be explored further in Point 3. (iii) The most severe offence under the scheme of the DDA is drug trafficking as it carries the mandatory death penalty, as mentioned in the previous point. To prove an offence of drug trafficking, the prosecution must first prove that you were in possession of dangerous drugs and that such possession is for the purposes of trafficking in the said drugs. While we might think that ""trafficking"" refers to sneaking drugs past Customs, the legal definition of “trafficking” is actually pretty detailed; as shown in Section 2 DDA (in part): "" “trafficking” includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug..."" 3. You'll most likely not be given bail The reason why bail is significant is because court trials can take a very long time and, during the trial period, you can either be allowed to go home on bail or be remanded (detained in prison) until the conclusion of the trial. However, if you're charged for possessing a certain quantity (weight) of drugs or for drug trafficking, then no bail is allowed. Section 41B(1) of the Dangerous Drugs Act: “Bail shall not be granted to an accused person charged with an offence under this Act- (a) where the offence is punishable with death; or (b) where the offence is punishable with imprisonment for more than five years; or (c) where the offence is punishable with imprisonment for five years or less and the Public Prosecutor certifies in writing that it is not in the public interest to grant bail to the accused person.” Section 39A(1) and 39A(2) of the DDA lists down increased penalties for drug possession if the drugs exceed a certain weight. For example: If you were found guilty of possessing between 2-5 grams of Heroin, Section 39A(1) states that the court will have to sentence you to prison for 2-5 years and 3-9 strokes of the cane. On the other hand, being guilty of possessing more than 5 grams of Heroin will land you with imprisonment from 5 years to life and a minimum of 10 strokes of the cane under Section 39A(2). In other words, if you're charged for drug possession under section 39A(2) or for trafficking, the court cannot exercise its discretion to release you on bail but to hold you in remand until the conclusion of the trial. The remand period can stretch for a very long period (usually not earlier than a year) as the trial process can be very lengthy. 4. Claiming you ""didn't know the drugs were there"" probably won't work In many cases where people have been caught with drugs, the often-heard claim is that they didn't know the drugs were there. So how does the court determine whether or not this is true? Similarly, how does the court determine whether you're guilty of possession or the more serious charge of trafficking? This is where presumptions come in. A presumption is a legal construct which enables the court to presume the existence of a certain fact upon the proof of other ancillary (supporting) facts. The most commonly employed presumptions in drug cases are the presumption of possession/knowledge and the presumption of trafficking. These are both housed in section 37 DDA, which provides a list of presumptions applicable in drug cases. To very simply explain how presumption of possession works, imagine this scenario: You were stopped and checked while carrying a bag for a friend. Unfortunately, you didn't know there were drugs hidden in the bag and you're charged for drug possession. In this case, the deputy public prosecutor only needs to prove you were in physical custody and control of the bag. Then, the presumption can be used to presume that you have knowledge of the drugs in the bag and that you are therefore in possession of it The presumption of trafficking on the other hand depends on the weight of the drugs in question. If the weight of the drugs found on you exceed the threshold weight prescribed in section 37(da) of the Dangerous Drugs Act, then it can be presumed that you are trafficking in the said drugs. Section 37(da) is a rather extensive, so you may want to take a look at it yourself here. So when both these presumptions (possession and trafficking) are used in tandem, it is incredibly easy to prove the offence of drug possession or drug trafficking. This is how it'll work: The prosecution shows that you have physical custody and control of the drug, or anything in which the drug was contained (like a box, bag, parcel, etc.). This proves the offence of drug possession. If the weight of these drugs exceed the threshold weight (e.g. 15 grams of heroin, 50 grams of Methamphetamine or 200 grams of Cannabis), then the more damning offence of drug trafficking is proven. It must be said however that these presumptions are rebuttable; which means that you can bring evidence to negate or refute the fact that you had knowledge of the drugs, or that you were not trafficking in the said drugs. 5. You may also get your house confiscated (among other things) Image from Florida Politics. Aside from the punishments mentioned above, there are other penal sanctions you may face because of drug-related offences. These may include the freezing or forfeiture of your assets (like your house or bank account) under the Dangerous Drugs (Forfeiture of Property) Act 1988 or the Anti-Money Laundering and Anti Terrorism Financing Act 2001 if it can be proved that these assets were used for illegal activities stipulated under these laws. You may also face detention without trial under the Dangerous Drugs (Special Preventive Measures) Act 1985, where a person may be detained under the order of a Minister for a period not exceeding two years for being associated or involved in drug trafficking. This Act also allows the Minister to restrict your movements to a certain area via a restriction order. However, it isn't just all harsh punishments. The law also caters for the rehabilitation of drug users by focusing on reform, through rehabilitation programs, treatment and police supervision which can be found under the Drug Dependants (Treatment and Rehabilitation) Act 1983. 6. The mandatory death penalty might be abolished Over the past few years, several prominent figures in Malaysia had expressed doubt over the effectiveness of the mandatory death penalty in deterring drug trafficking and - unrelated to this article - murder. In 2012, it was revealed in Parliament that drug trafficking crimes between 2009 and 2011 actually increased despite having the mandatory death penalty in place. This also gave rise to the question of ethics: “No criminal justice system is perfect. You take a man’s life and years later, you find out that another person did the crime. What can you do?"" - Datuk Seri Nazri Abdul Aziz, 2012, as quoted by The Star Online. Recently, the mandatory death penalty has once again been put in the limelight with the current Law Minister Azalina Othman calling for a review of the mandatory death penalty. According to several news reports, the government has purportedly agreed to amend the law to grant discretionary powers on the courts to impose other forms of punishment besides the death penalty. ""The cabinet agreed and decided that amendments be made to Section 39B of the Dangerous Drugs Act by including additional clauses to give discretionary power to the courts to bestow other sentences, besides the mandatory death penalty, in certain situations."" - Azalina Othman, March 2017, as quoted by The Malay Mail Online. Bonus Safety tips! 1) Be extra careful and exercise caution when a stranger or even a friend asks you for a favour to safeguard or carry their belongings. Although it may not be courteous to peek into someone else’s belongings, the law imposes a duty on you to check and inspect for contraband items. 2) Do not leave your belongings unattended or unsecured in public areas. 3) Although you may exercise the right to remain silent during police investigation, it is advisable to state and inform the police of material particulars relevant to your defence in the cautioned statement such as the following even though not specifically asked by the recording officer: Your version of events Identity and contact of the person who handed you/is the recipient of the package containing the drugs Any form of communication between you and such person Any other person who may have access to the drugs Any person who may support your version of events These particulars may enable the authorities to conduct a thorough investigation and also be used to support your defence in court if you get charged. 4)Immediately inform your family or friends and seek legal advice if you are arrested or investigated over drug-related offences."
"Is it illegal to live in a shoplot? Most working people have probably heard this joke for at least one point in their working life: You spend so much time in your office you might as well live there!Perhaps it's funny because it's somewhat true - According to a global survey by employment agency Regus in 2011, 15% of Malaysians work over 11 hours a day. So sleeping in your office may seem to be a very inviting option... But can you? Legally, we mean. Are you allowed to sleep or live in your office? Short answer: In general, there appears to be no laws forbidding people to sleep on their own property. However, different circumstances may give rise to different outcomes. Why? Lets take a closer look starting with... The difference between residential and commercial buildings What's the difference between your office and your home? It's all in the land title. According to Section 52 of the National Land Code 1965, most land in Malaysia is divided into one of three categories: agricultural, building or industry. Agricultural land is usually for farming, while industrial land is for the building of factories, mines, etc., and will not be the focus of this article. When it comes to building land, section 116 lays down a long list of purposes which the land can be used for, the most important being the first two mentioned: (a) residential purposes, or (b) administrative or commercial purposes. This purpose will be stated in the title of the land you buy. In a nutshell, residential titles are given to places you live in, while commercial titles are for shoplots and other places of business. Another difference between the title is that owners pay different rates depending on what kind of title they own: commercial title owners pay quit rent, assessment and utility bills at commercial rates, which are usually higher than residential rates. However, you can turn your house into an office The law pertaining to the development and purchase of residential properties is the Housing Development (Control and Licensing) Act 1966. As for commercial premises, on the other hand, control of them falls under local government. The Local Government Act 1976 gives a local council the power over licensing of your business, its scope, and the power to enact bylaws regulating any businesses. For example, you can find a list of existing bylaws regarding business licenses in Petaling Jaya here. It is possible to change a place's title from residential to commercial: an owner has to apply under section 124 of the National Land Code 1965 for approval. This also is subject to various other terms and conditions: only certain areas are allowed to be converted, and only for certain functions. Section 124 (1)(a) of the National Land Code 1965 (in part) : ""The proprietor of any alienated land may apply to the State Authority under this section for: (a) the alteration of any category of land use to which the land is for the time being subject or, where it is not so subject, for the imposition of any it is not so subject, for the imposition of any category there on ..."" As an example, in Petaling Jaya, the Garis Panduan Bagi Membuat Perdagangan dan Perniagaan di Majlis Bandaraya Petaling Jaya states only residences in Jalan Gasing, Jalan Kemajuan and other selected areas can do this. The kind of business you do also has to be approved: this, by the way, is the reason why so many houses in SS2 have been turned in bridal houses. Note: The 'Garis Panduan' is not available online but can be obtained from visiting the MBPJ office in Jalan Yong Shook Lin, Petaling Jaya. Changing from commercial to residential is hardly done, as few people want to live in a house in the middle of a row of shops. With all that explained, we shall now examine several situations pertaining to sleeping in a shoplot. Sleeping on the job... and after it - Four scenarios SCENARIO A: You own the property and decide to sleep there As stated earlier, and after a long, long, LONG search, we did not find any legislation or local council by-laws forbidding you from sleeping in your own property. However, certain property websites state that commercial use of a place may also cover residential use. We suppose, however, that if installing sleeping quarters interferes with one of the rules laid down by the local council by-laws, then that would be an offence. According to property lawyer Ong June Siang, a property may also be subject to a Deed of Mutual Covenant (DMC), which is an agreement signed between the owner of a premise and the management body: ""For commercial properties, the owner may have signed a DMC that prohibits them from using the premises for dwelling or hotel accommodation purposes. The DMC may state that the premises are only for the use of office workplaces, and management approval will be needed for any other purposes of use. Bear in mind however, a DMC has contractual binding effects on the owner, and breaching its terms does not amount to an offence unless expressly prohibited under the law"" - Ong June Siang, Partner at legal firm Donny & Ong, in interview with ASKLEGAL. If you REALLY want the sleeping in an office experience, the easiest solution to this issue is to find a Small Office Home Office (SOHO). This is a development which combines office functions with residential features such as bathrooms and bedrooms. While the land is commercial title, it enjoys legal protection under the Housing Development (Control And Licensing) Act 1966, which only covers residential property. So, depending on the place’s exact rules, you could be working all day and then sleeping all night in your SOHO. There are also Small-office Versatile-office (SoVo) and Small-office Flexible-office (SoFo), which come with different features, although they are not covered under the HDA. So if it is really your dream to sleep in a shoplot, one of these places is the best bet for you. SCENARIO B: You let other people who are NOT the owner sleep in a shop lot you own. It depends. If there is no payment, or any conferring of benefit to the owner, the law is quite silent and there is nothing expressly forbidden. If money (like rent) is involved, however, especially over a long period of time, the laws pertaining to tenancy agreement apply. SCENARIO C: You open a hotel or some sort of accommodation in your shoplot Have you applied for a license from the local council? If you haven’t, then your hotel is illegal. Places like Subang and Klang, for example, have specific by-laws explaining their hotel laws: for other places, best check with a local council office for specific rules. So if you got a hotel license, then good on you and sleep away. SCENARIO D: You let your (legal) workers sleep in your shoplot That falls under the Workers’ Minimum Standards of Housing and Amenities Act 1990. Section 7 covers creating new buildings for them to stay in, while section 9 states: Section 9 (1) of the Workers’ Minimum Standards of Housing and Amenities Act 1990 A building originally built for a purpose other than the housing of workers shall not be used for, or be converted for the purpose of, the housing of workers, unless an application in that behalf has been made to and approved by the Director General (of Labour). So in this case...no, we don't recommend letting your workers sleep in your shop lot without applying to the Department of Labour. The laws applying to deed of mutual covenants, as in Scenario A, also apply. Perhaps there's really no place like home Whew. Who knew that the issue of sleeping in shoplots was so complicated? What we can take from this is such: it's always good to be aware of the various rules pertaining to housing development law and local government before deciding to set up business anywhere. Also, while the law may not expressly forbid you from sleeping in your own shoplot, and it would be difficult to actually catch you in the act, we certainly wouldn't recommend it. Firstly, you would have to pay your electricity and water bills at commercial rates, which would mean hefty utility bills at the end of the month. Most commercial properties are also not built with residency features in mind, which means sleeping there may be difficult, and you would be surrounded by other businesses, where the added noise and activity may make sleeping a bit harder. So if it's a good rest you want, we recommend a good old-fashioned house."
"Can the Malaysian Police enter your house without a warrant? We have seen it too many times on TV. The police knocks on the door, the occupant opens the door, the police says they would like to enter, and the occupant asks ""Do you have a warrant?"". If the police does not have one, they usually leave, if they do have a warrant, they enter the house, and do what is necessary.So if this happens to you in Malaysia, must you let the police into your house? Or, if they don't have a warrant, can they still legally enter your house regardless?Our Federal Constitution affords certain rights to the people in regards to privacy and property. Basically, the government (or other people) cannot simply interfere with your privacy or property without the backing of the law. Generally, the PDRM wouldn't be trying to enter your house unless there is a very good reason to. This means that their authority to search your house, whether with or without a warrant, depends on the situation at hand.The police knocks on your door WITH a warrant...In order to obtain a warrant, the police would have to conduct their investigations and convince a judge from the magistrates court that a warrant is necessary for them to progress further and/or to solve the case.There are generally two types of warrants that may be issued - a SEARCH warrant and an ARREST warrant. The difference between the two is that an arrest warrant allows the police to only arrest the person named in the warrant, whether in a public (like a restaurant) or private area (like a house). On the other hand, a search warrant is more general... it allows the police to only search for certain items or people (like a person who may be kidnapped).Here are some situations in which a warrant is necessary:1. TO SAVE A PERSON WHO MAY BE KIDNAPPED - Search warrantIf the police, after conducting their investigations, believe that a kidnapped person may be held captive in your house; they can try to obtain a search warrant as stated in Section 58 of the Criminal Procedure Code:""If any Magistrate has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence he may issue a search warrant.""With this warrant, the police now have the legal right to enter into your house and search for the relevant person.2. IF THE POLICE ASK YOU FOR AN ITEM AND YOU DON'T GIVE IT TO THEM - Search warrantImage for illustration purposes. Source.Let's say you're an accountant in a company being investigated for fraud. As an accountant, you're in possession of certain documents or items that the police believe may help in their investigation; so they issue you a summons to produce these documents or items. If you don't comply, or if the judge believes you won't comply with the summons, a warrant may be issued under Section 54(1) of the Criminal Procedure Code:""[Where] any Court has reason to believe that a person to whom a summons ... has been or might have been addressed will not or would not produce the property or document as required by the requisition;""This will then allow the police to legally enter your office or house (depending on the conditions stated in the warrant) to search for these documents.3. TO SEARCH FOR POSSIBLE EVIDENCE OF AN OFFENCE - Search warrantIn contrast to the scenario above, this would be where the PDRM did not issue a summons order to you (for specific items), but they strongly suspect that searching your house may uncover evidence to help with investigations. Section 56 of the Criminal Procedure Code provides that the judge may issue a warrant if he has reason to believe that an offence has been committed OR there may be evidence in your house that can assist the police with investigations.To illustrate, lets say PDRM has been observing a known drug dealer coming in and out of your house with suspicious packages that MAY give the magistrate reasons to believe that drug offences are being committed in your home. The judge may then issue a warrant to search for evidence in your house to assist PDRM with investigations.4. SEARCHING FOR A PERSON PDRM WANTS TO ARREST - Arrest warrantWarrant of arrest announcement. Image from CGMalaysia.Following Section 16(1) of the Criminal Procedure Code:If any person under a warrant of arrest or any police officer or penghulu having authority to arrest has reason to believe that any person to be arrested has entered into or is within any place the person residing in or in charge of the place shall, on demand of the person so acting or the police officer or penghulu, allow him free ingress to the place and afford all reasonable facilities for a search in it.When the police or a penghulu (head of a kampung) believes that a person to be arrested is in your house, they may obtain a warrant of arrest from a judge. With this warrant, you HAVE to allow them access into your house. However, it should be noted that they can ONLY search for the person they want to arrest, and cannot go searching for something else. And yes, the police can enter WITHOUT a warrant While less common, there are also some situations where the police are permitted to search a place without need of a warrant; including forced entry into the premises if neccessry. This may be applied in situations such as:WHEN IT NEEDS TO BE FAST, LIKE FOR COUNTERING TERRORISMThere might be situations when immediate action is required, in which case Section 116A of the Criminal Procedure Code allows the police to enter without a warrant. This is applied mainly for national security concerns (such as SOSMA offences) and organized crime (such as gangsterism, triads, and mafia-type offences) where a delay may cause the evidence to be moved or destroyed.Here, only a PDRM officer ranked an Inspector or above may enter and search the relevant premises for evidence. The officer must have reasonable grounds to believe that such offences are being committed and that a DELAY CAUSED BY OBTAINING A WARRANT may make the search for evidence difficult.Bukit Aman Special Branch personnel preparing to raid a suspected IS militant's house. Image from The Star, for illustration purposes only SEARCHING FOR STOLEN ITEMSA search for this type event is governed by Section 62 of the Criminal Procedure Code. Again, an officer with the rank of Inspector or above may only conduct the search if: He received information that a particular item has been stolen He suspects that item is being hidden He has good grounds to believe that delaying by getting a warrant may result in the item going missing. In these situations, the police must have a written list of the allegedly stolen items and must be accompanied by the victim of the theft. So what should you do if the police wants to search your house?Officers using a bolt cutter to gain entry. Image from The StarWell, if they have a warrant, the best thing to do is to comply and let them in.The law doesn't give you much options in these circumstances. Section 59(1) provides that if you are in charge of a closed place about to be searched legally, you have to let them in, or if not the PDRM may just kick your door in. So for example, if you're in your father's house (meaning you're not the legal owner of the house), you're still considered to be in charge of the premises.While it is advisable to accommodate the authorities while they perform their duties, it is still best to know your rights to prevent a misuse of power. If you are ever in a situation where you think a misuse of power has taken place, there are several avenues to resolve the situation. You can go the courts, file a civil suit, or file a complaint with PDRM's complaint portal at http://www.rmp.gov.my/ispaaa."
"If the food you bought from the supermarket is spoilt or contaminated, what can you do? Imagine this scenario: You've just come home from grocery shopping, and eager to make yourself a nice simple dinner to end the day. You take out the can of chicken curry you've just bought and face one of the following scenarios:a) You notice that the chicken curry is expiredb) It's not expired, but when you open the can, you find a dead cockroach insideWhile most of us would just take it back to the store to be exchanged or just throw it away, it would be useful to know your actual rights as a consumer, as well as the legal options available to you when your purchase leaves you with a bad taste in your mouth.We'll first start with the basics, which is..Businesses are legally required to sell you safe food Image sourceBe it a cockroach, mold, or even a rusty nail; here are two important laws that protect you from being sold bad food - the Consumer Protection Act 1999 and the Food Act 1983. While this article is focused specifically on packaged food, the same principles apply to prepared food ordered from a shop - which we will cover at a later time. To begin with, the Consumer Protection Act states that all sold goods must be safe and not cause harm to the consumer. For instance:Section 20 of the Consumer Protection Act (in part) :""... no person shall supply, or offer to or advertise for supply, any goods or services which do not comply with the safety standards...""Not just that, the product must also adhere to the Food Regulations Act 1985, which governs the quality and standards of food ingredients. So what this means is that unless cockroaches are listed as an ingredient (and somehow approved for consumption) it can be reasonably determined that a cockroach in your canned curry chicken doesn't fulfill safety standards and isn't safe to consume.On the other hand, spoilt food is defined in Section 13 of the Food Act as (either individually or as a combination): Having a negative long term effect on your health Containing ingredients which are unfit for human consumption (like rotten or inedible animal or vegetable parts) Adulterated or being of substandard quality Depending on circumstances, the supermarket or manufacturer may be committing an offence if they sell you food unfit for human consumption. The owner will face a fine and/or jail term if convicted. So what can you do if you find a worm in your orange juice bottle?Or a weird slug in your apple juice. Image source.The picture above is from the UK, where a woman claimed to have found the ""alien creature"" after noticing that her apple juice had a strange color and taste. A similar case also happened in Malaysia, where a woman claims her brother spat out a live slug that was in a box of mango juice. The first thing to remember is that your first point of contact would be the store or supermarket that you bought the item from. This is mostly for convenience and ease of access to sort out the matter. Here, the Consumer Protection Act 1999 also outlines what you can do to remedy the situation. If it isn't too serious, like if nothing bad happened to you, you can simply reject the item you've bought and demand for a replacement product or a full refund from the store:Section 42(1) of the Consumer Protection Act (in part):""(1) A supplier may satisfy a requirement under section 41 to remedy a failure of any goods to comply with a guarantee by— ...(c) replacing the goods with goods of identical type; or (d) providing a refund of any money paid...""However, things become a little trickier if you've actually consumed the product before realizing there was something wrong with it, and perhaps experienced some discomfort as a result (like food poisoning). In this case, you may be able to sue the manufacturer and/or the supermarket for negligence and claim compensation. However, you should seek advice from a qualified lawyer first. But don't forget your receipt!It's advisable that you keep any receipts as proof of purchase to avoid any unnecessary disputes with the store - basically to prove that you've actually bought the item from them at the specific time and date. Also, unless you've suffered a major inconvenience or side effects, it may be best to settle the matter directly with the supermarket and/or the manufacturer as further legal action may be costly and time-consuming. However, if either of these parties are unwilling to take responsibility or give you a refund, you can also lodge a complaint with The National Consumer Complaints Centre or the Ministry of Domestic Trade (KPDNKK)."
"What can you do if you get cheated shopping online in Malaysia? Malaysians are now starting to shop online more often - thanks to the convenience of being able to buy everything you need in the comfort of your own home. However, that's not to say online shopping doesn't come with risks... Sometimes, you may pay for the item, and not receive it; or perhaps receive an item which isn't what you ordered. And unlike conventional stores in a shopping mall, you cannot return to the store with a receipt and demand for your money back or a replacement product.Usually, when such instances happen, the best thing to do is to contact the seller, or perhaps the market website (e.g. Lazada, eBay, or Amazon). But if that doesn't work, are there legal avenues for you to literally get your money's worth? First, it depends on what went wrong with your orderThe courses of action you can take is dependent on the situation you're involved in. We will break this down into three common situations that customers may face when shopping online: IF THE SELLER DIDN'T SEND THE ITEM TO YOU OR THE ITEM WAS NOT WHAT YOU WANTED:This person bought an iPhone online and received a padlock instead. Full story on Cilisos.myFirstly, it's generally advised that if something like this happens, you should contact the seller or the host website first. Usually they would try and fix the situation that you are in, either by refunding your money back or sending you the correct item. Going to the courts should be a last resort.But in the event that you DO go court, here are a few things you should know :-Firstly, these transactions are almost always a contract. In other words, it is a promise which can be enforced by the courts.The rules regarding such matters are the same whether or not you shop online or offline. So, when the seller agrees to accept your money and when you pay that money, it usually amounts to a contract as per Section 10 of the Contracts Act 1950:""All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.""Thus, when a contract is concluded, you as a buyer have a duty to pay the amount agreed, and the seller has a duty to give you the item you bought. In this sense, if the seller doesn't give you the item you bought, or it was defective or bad quality, he may be liable for a breach of contract. [Click here to read our article on unwritten contracts]So what happens when the seller has breached the contract? According to Section 40 Contracts Act 1950, you may put an end to the contract (Cancel the transaction). Further, Section 76 provides that you be able to claim damages, meaning that you may be able to sue the seller in question.IF THE SELLER DESCRIBED THE PRODUCT WRONGLY:Remember when the color of this dress caused a huge argument online? Image from Wired.So imagine if you see this absolutely gorgeous white-and-gold dress online that's just screaming at you to buy it. You give in, place the order, and in a couple days receive the package in the mail. But oh no! The dress that you bought turns out to be black and blue! This might be a case of misrepresentation, which in this case means that the seller made a false statement which induced you enter the contact (by purchasing the dress). In a situation like this, you could take up legal action against the seller - though we would again advise you to try getting a refund or replacement first. If the seller is liable for misrepresentation, there are two options open to you - either to end the contract or to continue the contract: If you choose to end the contract - Section 34(1) of the Specific Relief Act 1950 states that you may be able to rescind the contract, basically ending it in such a way where the buyer and seller will be returned to the position as if the contract had never happened. So the seller returns the money, and the buyer returns the dress. Basically, it's as if the sale never happened. If you choose to continue with the contract - Section 19 of the Contracts Act 1950, suggests that if you choose to go on with the contract, you actually may be able to receive damages, assuming you have suffered losses. You may also compel the seller to send you the right dress. The reason we've been reiterating that going to court should be a last option is because lawsuits can be an expensive, lengthy process that you may not want to put yourself through, especially if the item you bought didn't cost a lot to begin with. But thankfully there is another option available... If the case is too small to go to court, you still have another option The alternative to a lawsuit is to use two services provided by the Ministry of Domestic Trade (KPDNKK): Submit a complaint to the Consumer Affairs Department for them to launch an investigation Take your case to the Tribunal for Consumer Claims. The Tribunal for Consumer Claims is an independent body established through the Consumer Protection Act 1999 - it may be helpful to think of them as a ""private court"" where judgments are binding by law. This may be a more affordable and quicker alternative if the amount of your claim is less than RM25,000 as neither party can engage lawyers. Instead, you will present your own case in court with the assistance of a member of the Tribunal. On a final note, you should also make a police report, which can be submitted as evidence whether in court or with the Tribunal of Consumer Claims. It's possible that the police may conduct an investigation and possibly charge the seller with a crime, such as violating Section 5 of Trade Description Act which prohibits a trader from falsely describing a product in an advertisement. However, it should also be noted that not having your online shopping spree go as planned is considered a civil matter, so the police may not or cannot take action depending on circumstances."
"Is an unwritten promise legally binding?  When you think of the word ""contract"", you would probably imagine a piece of signed document containing all the signatures with the terms and conditions. But, do you know that a contract is legally binding even though it is NOT in writing? In fact you enter into contracts every day without realising it! For example, when you go to a supermarket, pick up a can of Coke and give the cashier money for it, you have actually entered into a contract. Another every day example is when you go to a roadside drink stall. The moment you ordered a drink and paid for it, you have made a contract with the stall owner. We'll explain how this works below. What is a ""Contract""? A legally binding agreement is a contract. A legal contract is formed after all the mandatory requirements under the Contracts Act 1950 are fulfilled. Section 2(h) Contracts Act 1950 an agreement enforceable by law is a contract This means that once an agreement fulfills all the requirements under the Act, it becomes a contract - even if it's not put in writing: Section 10(1) Contracts Act 1950 All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. So to explain the earlier example, the moment you took the can of Coke from the supermarket shelf to the cashier to buy the can of Coke (The ""lawful object"") and exchanged money in return for the Coke (The ""lawful consideration""); ...This action becomes a contract. The general rule under the Contracts Act is that ANY agreement that fulfills these conditions is a legally binding contract. Are all unwritten contracts legally binding? The quick answer to this is no. Even though the law says that unwritten contracts are generally binding, there are some contracts that MUST be made in writing. For example, Section 26(c) of the Contracts Act states that a promise to pay a debt barred by limitation law (an unclaimed debt within 6 years) should be in writing and signed by the debtor. Section 26(c) Contracts Act. An agreement made without consideration is void, unless it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits On the other hand, some laws expressly state that certain contracts can be made either verbally or in writing - such as employment contracts. These can be found in Section 2(a) of the Employment Act 1955 and Section 2 of the Industrial Relations Act 1967. For example: Section 2(a) Employment Act 1955 ""contract of service"" means any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as an employee and that other agrees to serve his employer as an employee and includes an apprenticeship contract; While the law does consider some forms of unwritten contracts to be legally binding, it can lead to problems later on... Proving an unwritten contract can be hard If a dispute happens regarding a verbal contract and the parties took it to court, the court will look at the circumstances of the transaction as well as witness statements to discover the contractual terms. In some cases, the court may also have to look for evidence to prove that the contract existed in the first place. To get a better idea, we will take a look at some cases involving disputes over unwritten contracts that happened in Malaysia, and how the courts came to their decision. We should note that we are unable to provide links to these cases due to licensing/copyright concerns. In the case of Melaka Farm Resorts (M) Sdn Bhd v. Hong Wei Seng, the claimant (Hong Wei Seng) had to prove that he was employed by the company despite not having a contract in writing. This evidence of his employment was gathered through supporting documents that showed his salary was at RM2,000 per month, and that RM4,000 was paid to him over 2 months. In the case of Tan Swee Hoe Ltd v Ali Hussain Bros, the landlord told the tenant company that it could occupy the land for as long as it wished with a payment of RM40,000.00 as “tea-money”. The court considered this to be a binding obligation: ..the parties intended or must be taken to have intended that the oral promise was to form part of the basis of the contractual relations between them. ... The appellants (landlord) gave such a promise which....amounted to an enforceable contractual promise.- Federal Court, Tan Swee Hoe Ltd v Ali Hussain Bros Needless to say the court process will take a longer period since there are no contractual documents to rely on. Should you enter into an unwritten contract? For the benefit of both parties, unwritten contracts are not highly recommended for importance agreements such as employment or the sale of large quantities of goods - even though the law will see them as binding, The general business practice is that most commercial contracts are made in writing to maintain a proper record of the agreement. Verbal contracts create a greater possibility for disputes on the terms since parties will face problems when it comes to proving what the terms are. So, to be on the safe side, it is better to have a written contract, to make sure that you know what you are exactly going into when entering into an agreement."
"Can Mahathir actually sue PM Najib? Let's see what the law says... [Updated] Update: The High Court ruled that PM Najib, as Prime Minister, is not a public officer. As such, the court struck out the suit and ordered Mahathir's side to pay RM30,000 in costs. Mahathir will appeal the decision in Federal Court. By now, most Malaysians would be familiar with the controversy surrounding 1MDB and the allegations that Prime Minister Tun Najib Razak may have been involved in the scandal. While there were many twists to the story, the latest development came from former Prime Minister Tun Mahathir, who initiated a civil lawsuit against PM Najib.It should be noted that, the court case initiated by Tun Mahathir is not a criminal one, meaning that there will be no jail time or fine should he lose the case. Instead, Tun Mahathir is suing PM Najib in the same way you would sue someone for causing you injury in a car accident. This basically means that, should PM Najib be found liable, the court may order him to pay compensation or some other relevant orders such as issuing an apology. However, we probably will not be seeing this case argued in court any time soon because...PM Najib's lawyer says the Prime Minister cannot be suedTo explain this in it's most basic element, imagine that the law is like a recipe for chicken curry. You need spices, curry powder and chicken. If one of these ingredients are missing from the recipe, you don't have chicken curry. Similarly with the law, if you miss one element of the law, your lawsuit may fail.Tun Mahathir is suing PM Najib for RM2.6 billion in exemplary damages and a further RM42 million in aggravated damages for committing the tort of misfeasance in public office, which is basically when someone who holds a position in a public office misuses or abuses their power which results in a person or a group of people suffering a loss. However, PM Najib's lawyer is arguing that ONLY a member of the public service can be found liable for misfeasance in public office. Because PM Najib is a minister (member of the administration), he is NOT a member of the public service - therefore the ""ingredients"" for misfeasance cannot be satisfied.This is pretty confusing, so to fully understand the argument we first need to know the difference between a member of the administration and a member of the public service. These are both found in the Federal Constitution, which first defines a member of the administration as ministers from the federal and state governments: Article 160(2) of the Federal Constitution (in part):"" 'member of the administration' means, in relation to the Federation, a person holding office as Minister, Deputy Minister, Parliamentary Secretary or Political Secretary...""On the other hand, members of the public service are taken to include personnel from organizations such as the Armed Forces, Police, and Education Services. The Federal Constitution EXCLUDES members of the administration from being members of public service, as provided for in Article 132(3)(a):The public service shall not be taken to comprise—(a) the office of any member of the administration in the Federation or a State;ASKLEGAL legal consultant Caitlen Ho simplifies this as: ""In other words, the Prime Minister is not a “public officer” as the office of the Prime Minister does not fall within the legal definition of a 'public office'."" - Caitlen Ho it should be clarified that PM Najib's lawyers are not claiming you can't sue ministers at all, but only for misfeasance in public office. In fact, you CAN actually sue a minister!The tort of misfeasance in public office is a very specific type of wrong - since the law of tort also covers matters pertaining to accidents, trespass, and defamation. So for example, if a public officer (minister or not) while performing his public duty, causes a road accident, you can take legal action against him or, by extension, against the Federal Government. The Rules of Court 2012 is the body laws which governs non-criminal court matters, and Order 73 Rule 3 of the Act suggests that proceedings can be taken against the Federal Government. A similar legislation can also be found in Section 5 of the Government Proceedings Act (quoted in part):""...the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer.""Furthermore, the case of Kerajaan Malaysia & 3 Ors v Lay Kee Tee & 183 Ors (2009) - which involved a complaint that the Federal and State Governments did not act fast enough to handle the Nipah Virus issue - stated that if you are suing the government you must identify the government officer who committed the wrong. Now, the important question is, can a minister be the government officer involved?A look at the laws concerning lawsuits against the government suggests that the answer is YES. The Government Proceedings Act, is the leading law concerning non-criminal cases where the government is involved. Section 2(2) of The Government Proceedings Act provides:"" 'officer', in relation to a Government, includes a person in the permanent or temporary employment of such Government and accordingly (but without prejudice to the generality of the foregoing) includes a Minister of such Government;""In simpler terms, the definition of an 'officer' includes both government employees as well as ministers. The courts will have to decide if PM Najib can be sued or notWhile it has been established that ministers are not entirely immune from lawsuits, it's worth mentioning again that the tort of misfeasance in public office is a very specific kind of lawsuit. Whether or not it applies to PM Najib (or any minister) will have to ultimately be decided by the courts. At the time of writing, the case is currently being heard in the High Court; whereby if the court sides with PM Najib's lawyers, then Tun Mahathir's lawsuit will no longer be able to proceed."
"5 Questions Malaysians ask about Hadi's 'Hudud Bill'... Answered In 5 Minutes! The fuss over the 'Hudud' Bill A lot has been said and debated about PAS President Hadi Awang's proposed amendment to Act 355, also known as the Syariah Courts (Criminal Jurisdiction) Act 1965 or, as it's most popularly called - the 'Hudud Bill'. Whichever way you prefer to call it, it's no question that the bill has generated quite a bit of controversy and confusion. With the bill due to be discussed in Parliament in March, here are 5 common questions we've come across about the Bill, with quick answers in order to understand the issue better... 1. Will Hadi Awang's bill bring Hudud law in Malaysia? First, there is a difference between Hudud and Syariah, whereby Hudud is a series of mandatory punishments under Syariah law specified under the Quran and Hadith. The crimes under hudud law are not pardonable by either the state or the victims and punishment must be carried out.These punishments include public lashing, public stoning to death, amputation of hands and crucifixion. However, the proposed amendment to Act 355 (aka Syariah law) does not add existing hudud punishments to the existing law and it only increased the duration of sentencing, fine and the number of rotan strokes. Under Section 2 of the current Act 355, punishments are limited to: A maximum of 3 years imprisonment A maximum fine of RM5,000 A maximum of 6 strokes of rotan. Hadi's proposed amendments will change this to: A maximum of 30 years’ imprisonment A maximum fine of RM100,000 A maximum of 100 strokes of the rotan. It should also be mentioned that for Syariah law, punishments are determined by the State Legislative Assembly, meaning that each state is free to set the actual maximum punishments as long as they don't exceed the limitations set in Act 355. For example, if Hadi's bill passes, Selangor can choose to keep the maximum imprisonment term at 3 years while Kelantan can increase it to 30 years. 2. Will non-Muslims be affected by the amendments? Non-Muslims may not be tried under Syariah courts as the Federal Constitution states the Syariah Court only has jurisdiction over Muslims. Therefore, only Muslims can be tried and punished in the Syariah Court. This can be found in Section 2 of Act 355 which states (in part): ""The Syariah Courts....are hereby conferred jurisdiction in respect of offences against precepts of the religion of Islam by persons professing that religion which may be prescribed under any written law""be prescribed under any written law"" 3. Will the bill allow “Hudud-like” laws to be introduced? In order to answer this question, it's important to first understand that Article 74 of the Federal Constitution gives both the state and federal authorities power to to make legal decisions and judgements (jurisdiction) for certain criminal offenses. However, Article 75 of the Federal Constitution also states that federal jurisdiction prevails over state jurisdiction, meaning that if a state law conflicts with a federal law; the federal law always wins. This also means that a state cannot make laws on criminal offences that falls under the federal list. Hudud punishments involves 6 types of offences: 4 personal sins of Zina (adultery), accusation of Zina (Qazaf), Drinking Alcohol and Apostasy 2 areas involving criminal offenses such as theft and robbery. Currently, the 4 types of offenses involving personal sin (Zina, Qazaf, Drinking alcohol and Apostasy) falls under the states’ criminal law. Syariah law has jurisdiction over these offences. However, Syariah law has no jurisdiction over criminal offenses such as theft and robbery, which falls under federal jurisdiction. This can be found in the Ninth Schedule, Item 1, of the Federal Constitution (in part): ""...Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to.... creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List (theft, robbery, rape, murder, causing injury)"" Currently Hadi's bill deals with the existing syariah offenses, which are under state jurisdiction, and the punishments allowed under Act 355 - limited to imprisonment, fine, and caning. 4. Can real Hudud be implemented in Malaysia? If actual hudud punishments were to be implemented, the Constitution would have to be amended. And this would take a lengthy process. The Constitution can be amended with a 2/3 majority vote of Dewan Rakyat MPs, equivalent to 148 out of the current 222 MPs. At least 3 parts of the Federal Constitution need to be amended: 1. List II of the Ninth Schedule - Lists which offences are under state jurisdiction, and which are under federal jurisdiction Criminal offence such as theft, robbery, rape, murder, and causing injury (offences in the Penal Code) is under federal authority and the jurisdiction of the civil courts and the police. An amendment will be needed to transfer the power to legislate over these types of offences to the state.2. Article 76A - Parliament can allow a state to implement a certain law even if it clashes with Federal lawParliament will have to use Article 76A - which gives the Parliament authority to allow states to pass certain laws - to allow each state to make and enforce laws against crimes that are under Federal jurisdiction. 3. Article 8 - Everyone is equal in the eyes of the lawArticle 8 states that everyone is equal in the eyes of the law and therefore be entitled to equal protection of the law. This would have to be amended to allow two sets of criminal laws - one for Muslims and one for non-Muslims. 5. Can Hadi Awang's bill be used as a 'back-door' attempt to implement Hudud?As mentioned in the previous point, in order to implement Hudud in Malaysia, amendments will have to be made to the Federal Constitution; which will require a 2/3 majority vote in Dewan Rakyat."
"Can a child be sued for causing an accident? The recent spotlight on the tragic accident between a car and a group of young cyclists in Johor that resulted in 8 deaths has brought about many discussions, including that of legal responsibility. While it needs to be said that this particular case is still under investigation and, with no disrespect to the people involved, it brings about an interesting question - Can a child be sued and, conversely, can a child sue someone else? The are instances where minors can breach the terms of a contract, and minors can be involved in accidents too. In such cases, the relevant parties may want to seek compensation for the losses they have suffered via a lawsuit. In order to answer this, we first need to know what a ""child"" or, more properly, a ""minor"" actually means - in the legal sense. This can be found in the Age of Majority Act 1971 which defines a minor as someone under the age of 18. And yes, a minor can get sued (or sue someone)! It's important to note that a lawsuit refers to a non-criminal case, usually a private dispute between two parties. However, both parties have to be recognized as a ""legal personality"", which is usually a person or a certain body (companies, the state, etc.). For example, you can't sue a cat for scratching your car, but you can sue the owner for being negligent. Similarly, a cat can't sue you for throwing hot water on it, but the owner can sue you for causing harm to the cat. Minors are recognized as a legal personality under the Rules of Court 2012 as ""persons under disability"" :Order 76 Rule 1 of The Rules of Court 2012 (in part):""person under disability, means a person who is a minor or a patient;""This order basically suggests that anyone below the age of majority(18 years old and below) and those who are mentally unsound fall under this category of ""Persons under Disability"". As mentioned earlier, persons under this category can be party to a court case, provided certain requirements are fulfilled. One of these requirements is that... A minor needs to be represented by a lawyer and a guardianNow that we know a minor can be involved in a lawsuit, it should be noted that they do not actually appear in court with their lawyer alone. The law states that a minor needs to be represented by an adult, known as a litigation representative. This requirement is laid down in Order 76 Rule 2(1) of The Rules Of Court 2012:""A person under disability may not bring, make a claim in, defend, make a counterclaim in, or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him, except by his litigation representative.""Usually, these litigation representatives would be the parent or guardian of the minor involved.Image from ""Learning Civil Procedure"" by Sukhdave Singh GillYou may think everyone who goes to court to handle disputes must have a lawyer beside him presenting arguments, but the Rules of Court actually gives an adult the option to represent themselves - although this is generally not advisable.In the case of minors though, because the adults are acting on behalf of minors - basically suing (or defending) for the minor's benefit instead of their own, they MUST handle court matters with a lawyer. This condition is stated in Order 76 Rule 2(3) Rules of Court 2012:""A litigation representative of a person under disability shall act by a solicitor.""Lastly, court proceedings involve a heavy workload of documentation which sometimes need to be passed around the parties involved. Some documents have a specific method of delivery, and failure to conform with such methods can result in further delays. In cases where minors are involved, these documents are required to be handed over to (or issued by) the father or guardian. Order 76 Rule 14(2) Rules of Court 2012 (in part):""...the document shall be served-in the case of a minor who is not also a patient on his father or guardian or, if he has no father or guardian, on the person with whom he resides or in whose care he is;""An example of this the ""writ"", which is a document informing the person that you're going to sue them. You would have seen this in movies where a lawyer hands over a document to someone being sued and then saying ""You've been served"". While a writ is required to be given directly to the person involved; in the case of a minor, the writ should be issued to the father or guardian instead. So, in what situation(s) can a minor sue or get sued?Now that the procedure on how a minor can sue or be sued is established, let's take a look into instances where a minor may want to sue someone, or where a person may want to sue a minor. These are generally over contract disputes or accidents.ContractsA contract is basically an agreement you may enforce in court, meaning if someone breaches the terms of these agreements, he can be sued in a court of law. In a broader sense of the word, a contract may also extend to a promise of payment for a product or service, such as buying food at a restaurant. Entering into a contract involves more than just signing a document with some words on it -The law must recognize that you are able to enter into such agreements. In Malaysia, this involves the question of competency, meaning the ability (i.e. maturity or knowledge) to make such decisions. The law further suggests competency relates to a person being an adult, as evidenced in Section 11 of the Contract Act 1950 (in part):“every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject”.However, exceptions do exist. There are instances where the law recognizes the ability for minors to enter into a contract, such as Section 69 of the same Act:“if a person, incapable of entering into a contract, or anyone whom he is legally bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person.”In simpler terms, a minor can enter into a contract if it concerns items or services which is necessary for his lifestyle such as food, clothing and housing. It should be further emphasized that not all these contracts can be enforced. For example, the court may not recognize a contract for an Armani suit if it is sold to a minor from a lower middle class family since it isn't a necessity for his condition of life. On the other hand, the situation may be a little different if minor involved lives in a bungalow in a very posh area.AccidentsWhile the law of contract governs agreements, the law of tort covers issues pertaining to accidents, trespass, defamation etc. Many of the court cases we see in court concerning tort are road accident cases.In cases where children are the victim of an accident or the cause of an accident, the procedure to sue for monetary compensation is as stated in the points above - the child needs to be represented by an adult and a lawyer. Things get a little more complicated, though, if a child was partially responsible for causing the accident - can a child be expected to act the way an adult does, and be held responsible for their actions? This was first addressed in the 1964 case of Jag Singh v Toong Fong Omnibus Co. Ltd, where the 7-year old Jag Singh ran in front of a moving bus and lost a leg as a result. While the judge found that the bus driver was negligent in his driving; he also acknowledged that the child, despite his young age, had experience traveling to and from school and would therefore know it was dangerous to get in the way of a moving vehicle. As a result, the judge only awarded half the amount asked for by Jag Singh's father. While it's possible, it's not the easiest thing to do...While it is possible for a minor to be involved in a civil lawsuit, it has to be said that such instances aren't very common. While the law does provide such avenues, it has to be emphasized that the requirements are quite stringent as compared to cases where both parties are adults. In this sense, it would be best to seek advice from a qualified lawyer before deciding on this course of action."
"Is It A Crime To Knock Down A Snatch Thief In Malaysia? Note: The image above is taken from Info Roadblock Jpj/Polis's Facebook Page. No fatalities were recorded in the incident.Snatch thefts in Malaysia are becoming an increasingly common occurrence, with 7-8 cases reported per day in KL alone. In some instances, victims may decide to chase down the robbers, or a kind samaritan may come to the rescue, and in the ensuing chase knock down the thief - leading to injury or death. While many people may see this as just desserts, the law may take a different view and arrest the victim- which usually leads to heated public debates. But does a victim actually have the legal right to chase down a thief and, more importantly, can the victim be put in jail if the thief dies? You CAN chase down and arrest a thief - even if you aren't the victimThanks to American crime dramas, many Malaysians would be familiar with the term Citizen's Arrest, which basically enables a non-law enforcement official (an ordinary citizen) to place another citizen under arrest. In Malaysia, this avenue is available under Section 27 of the Criminal Procedure Code, but with certain limitations. For the purposes of easy understanding, Section 27 allows you to temporarily place a person under arrest without a warrant if: S/he commits a crime where a suspect can only be granted bail if the court allows it (non-bailable offense). This includes crimes such as rape and theft. The police are notified immediately to place the suspect under official arrest. By extension, this also means that a by-stander can give chase and temporarily detain the suspect until the police arrive.While the law states that you can arrest someone else, it doesn't actually say that you can chase them down in order to arrest them, or to take extreme measures such as ramming them off their bikes. We spoke to litigation lawyer Fahri Azzat from legal firm Fahri & Co using the case of Mohamed Mazis Mohamed Mokhtar, who chased and rammed down 3 robbers who robbed his family at knifepoint, as an example: ""It's an open legal question what a normal person can do to effect a private arrest. [In this case] he was chasing them, very likely to ensure they do not escape and to recover the valuables. He was in a position to do that."" - Fahri Azzat, in interview with ASKLEGAL However, this doesn't give anyone an excuse to go about ramming into or beating up suspects because...You CAN get arrested if the thief is injured or diesFirst off, it's very important to understand that, legally speaking, being arrested or even charged with something doesn't mean you're guilty of a crime. You're only guilty of a crime if your case is brought to court and the judge finds you guilty beyond a reasonable doubt. [READ MORE:If you get arrested, does that mean you're guilty?]In an interview on TV3's Malaysia Hari Ini, lawyer Haaziq Pillay drew anger and ridicule from the public for claiming that a person cannot retaliate against a robber with a knife if their own knife is bigger:This is where the application of the law falls into a grey area because it can appear unfair for someone to get in trouble with the law for stopping a crime.A lot of this misunderstanding comes from the principle of proportionality, which in the context of this article means you cannot use more force than absolutely necessary to ensure your safety or security in a particular situation. Proportionality is evaluated on a case-by-case basis, so it's very important to note that there is no one-size-fits-all scenario or explanation because the decision of the authorities to take action against you depends on the outcome of their investigation - called the facts of the case. “Ultimately, the courts would look at the specific facts and circumstances on a case-by-case basis. What the court thinks is self-defence might be not what many people think.” - Sreekant Pillai, Criminal defense lawyer, as quoted by The Sun via The Malaysian Bar.While the argument of proportionality may perhaps be more suited to your right to self-defense - where weapons and direct threats to your safety is involved - it can still be applied to chasing down snatch thieves and detaining them. For instance, while you may be justified in knocking the suspect off his motorcycle to prevent him from escaping, it would be a crime to reverse your car over him or beat him up after he's already down. This also applies to bystanders who come to the victim's assistance. Depending on the extent of the injuries, you may be charged with causing grievous hurt or, if the suspect dies, manslaughter. “In certain circumstances, such as snatch theft, you can still chase the person to retrieve your property. But when you apprehend the person and get back your property, you then cannot rely on self-defence if you continue to beat the person to death.” - Amer Hamzah Arshad, Criminal defense lawyer, as quoted by The Sun via The Malaysian Bar. Fahri Azzat also cautioned against beating up or humiliating a suspect while waiting for the authorities to arrive as this may also lead to criminal charges against you:""Just because a person has committed an offence doesn't mean that anyone gets a free pass to beat or humiliate the suspect. Mind you, he has not been convicted in court so the presumption of innocence until proven guilty holds through. As much as it is against our sentiment and emotions, we have to accord someone charged or accused for an offence legal respect, not actual respect. Legal respect means respecting the legal system and its processes. So though the person has been arrested or is charged, you cannot treat them like a criminal or worse abuse them."" - Fahri Azzat If you are a victim or witness to a crime, ensure your safety first before taking action!While many may still feel that these laws don't make sense as it appears to favor the suspect over the victim, the simplest explanation is that the laws are in place to prevent citizens from resorting to rampant vigilantism, which can sometimes lead to tragic results such a 2013 incident where two kind samaritans trying to stop a snatch theft incident accidentally hit the victim with their car instead, killing her.The general advice is to exercise restraint, prioritize your safety and those around you, and call the police.It’s also a good idea to remember the emergency number “999” or, if you live in Selangor you can download the MyDistress mobile app which sends a one-click GPS-tracked emergency signal to the police. The app is available for both for Android and iOS."
"Can the Malaysian Police legally search your car at a roadblock? It is no news that Malaysians aren’t big fans of road blocks, or being stopped at one. While many of us may see them as an inconvenience, it might be helpful to know why these roadblocks are set up, what the Polis Di-Raja Malaysia (PDRM) may do at these roadblocks, as well as your legal rights if you get asked to pull over. Why does the PDRM set up roadblocks in the first place?Before going into the legal aspect, it has to be said that the PDRM usually has good reasons for setting up roadblocks - essentially to make our roads and community safer.According to Inspector Adrian Bin Kadir from Cawangan Trafik IPD Nusajaya, roadblocks are set up for two reasons: To detect traffic offenders Crime prevention and detection With regards to detecting traffic offenders, the PDRM inspects which drivers may be committing traffic offences. These offences would include driving without a valid license and/or road tax, or driving while under the influence of an intoxicating substance. As for crime prevention and detection, Inspector Adrian Bin Kadir stated that this would be when the PDRM are looking for persons in their wanted list.Which laws allow the PDRM to set up roadblocks?To understand what a driver may be able to do at road blocks, it may help to look at the enabling provisions first. Enabling provisions are sections within the law that gives government authorities their powers to take certain actions. The majority of PDRM’s powers with regards to road blocks come from the Police Act 1967 and the Road Transport Act 1987. For instance:Section 26(1) of the Police Act 1967 - 'Powers to Erect Road Barriers' :… any police officer may, if he considers it necessary so to do for the maintenance and preservation of law and order or for the prevention or detection of crime, erect or place or cause to be erected or placed any barriers on or across any public road or street…In simpler terms, this provision of the law allows any police officer to block access of any public roads for the prevention of crime or to preserve law and order. It can also be said that this law provides a broader form of power to the police to block entire roads, such as during the recent Bersih 5 Rally where blockades were erected along multiple roads leading to Dataran Merdeka.However, the police can't just set up road blocks as they like. This authority is defined in Section 78(1) of the Road Transport Act 1987 - ‘Powers to set up road blocks’:Notwithstanding anything contained in any other law, any police officer in uniform authorized in writing by a senior police officer of the rank of Inspector and above, including a probationary Inspector, or any road transport officer in uniform authorized in writing by the Director, may, if he considers it necessary so to do for the enforcement of this Act, erect or place or cause to be erected or placed any barrier as prescribed on or across any road in such manner as he may think fit…In other words, the PDRM basically can set up a road block if it is authorized by an officer with the rank of Inspector or above.Inspector Adrian further elaborates:“Generally speaking, a road block must be manned by more than 3 police officers and supervised by an officer of the rank of Corporal or above. Also, the PEMERIKSAAN POLIS sign board must be displayed along with flashing blue signal lights and traffic cones.” - Inspector Adrian bin Kadir, in interview with ASKLEGALDo I REALLY have to stop at a roadblock?As you get closer to the men in blue, you expect him to give you the hand signal which basically mean “carry on”. However, sometimes you may not be so lucky, and you get the dreaded hand signal which tells you to go stop at the side. But do you really need to stop at the side? What if you just drove on instead?Section 26(2) of the Police Act basically says that, if at any time you try to disobey an order of a police officer at a road block, you may be liable to imprisonment for a term not exceeding 12 months or a fine not exceeding RM1000, or both. Section 26(2) of the Police Act 1967:Any person who fails to comply with any reasonable signal of a police officer requiring such person or vehicle to stop before reaching any such barrier shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding twelve months or to a fine not exceeding one thousand ringgit or to both…However, there’s also the danger that the police might interpret your action of running the roadblock as a criminal gesture (ie. that you’re a wanted criminal on the run from the law), and in those cases… things don’t usually turn out well. An example of this is the case of Sharil Azlan Ahmad Kamil, who was hit by a ricochet bullet after a policeman fired at his car tyres when he tried to reverse away from a roadblock. While it should be noted that the court found that the shooting was not justified (the policemen were not in danger), they didn't award Sharil the extra damages he claimed due to his act of reversing out of the roadblock in the first place. And yes, they are legally allowed to search your car (!)Now that you know you can’t run off at a road block, you’ll probably want to park your car at the side. Right after the usual handing over of documents (I/C and driver’s license), the officer asks you to exit your car to be searched.Sometimes, even if you have nothing to hide, getting searched by the authorities seems like an infringement of liberty. Can the PDRM actually perform a search on a vehicle, or do they need a warrant?According to Inspector Adrian, police officers have powers to stop and search vehicles as well as the passengers inside. This comes from Section 24(1)(b) of the Police Act 1967 (read in part) which states: Any police officer may— …stop and search without warrant any vehicle or vessel which he has reasonable grounds for suspecting is being used in the commission of any offence against any law in force...In simpler terms, the police may stop your car to determine whether you have a license to drive your vehicle, and even search your vehicle if he has reasonable grounds to believe it is being used in criminal activities.Do I have to answer questions by the PDRM at road blocks?With regards to questions an officer may ask you at a road block, you aren’t required to answer any questions from the PDRM other than confirming your name and address. However, the scenario is a little different if the PDRM is in the process of conducting a criminal investigation - you may be legally bound to provide information in that particular scenario. An example of such a scenario would be when the police set up a road block because a serious crime happened in the vicinity. The police may ask drivers about their whereabouts to determine whether they may be a potential suspect or have any information on the incident. However, you do not need to provide information which may incriminate you, as per Section 112(2) of the Criminal Procedure Code:…(any person)shall be bound to answer all questions relating to the case put to him by that officer:Provided that such person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.If you feel that your rights have been violated, you can make an official complaintIn an article comparing the powers of the police in Malaysia and the United Kingdom, it was concluded that police powers in Malaysia do not preserve citizen's rights as well as they do in the UK. While it is best to follow the instructions given by the officers at a roadblock, it doesn’t mean you have to do it at the expense of your legal and constitutional rights.If you feel an officer is infringing on your rights or going beyond the boundaries of the law, note the time, place, and the identification number of the PDRM personnel involved. Complaints against PDRM personnel can be made through PDRM's iSPAAA service."
"Malaysia’s Nudity Laws: Do You Have The Right To Bare Yourself? Note: The image above is screencapped from a video of a group of people stripping during a motivational camp in Bentong. Public nudity - sometimes referred to as “public indecency” - in Malaysia can be quite a subjective topic as there isn’t a specific law determining when and where you can be nude, or what exactly constitutes nudity in the first place. While public nudity isn’t technically illegal, the authorities can use provisions provided by Malaysian federal laws as well as state by-laws in order to file a charge against a person accused of public nudity. It isn’t a question of what you did, but WHY you did it In order to secure a conviction, the authorities don’t only have to prove that you were in the nude (by photo or video evidence, eyewitnesses, etc.) but also that your nudity was purposefully intended to negatively affect the people who saw you.Here are some examples of the legal provisions usually used against suspects charged with public nudity: Section 509 of the Penal Code: “Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes upon the privacy of such person, shall be punished…” Section 28(e) of Minor Offences Act 1955: “Every person wilfully, openly, lewdly and obscenely exposing his person with intent to insult any other person…” From here, we can glean two important points, the first is that the definition of nudity extends to the point in which a person who witnesses it considers it lewd or insulting; and the second is that there has to be proof of intent. So for example, if a woman’s dress was to become undone in a shopping centre due to a faulty clasp or zipper, she would likely not have any charges placed against her as it was an accident - she had no intention of exposing herself. This is in contrast to the case of Persana Avril Sollunda, who was arrested under Section 509 and charged under Section 294 of the Penal Code for removing her jacket, blouse, and bra following an argument in Petaling Street in 2015. But there is an exception.. The exception to this, where intention doesn’t have to be proven, is Section 294(a) of the Penal Code: “Whoever, to the annoyance of others— (a) does any obscene act in any public place…shall be punished with imprisonment for a term which may extend to three months or with fine or with both.” Lawyer Fahri Azzat from legal firm Fahri & Co. explains: “294(a) is a strict liability offence that does not require intention to be proved. It means that if you did it then it’s an offence. You do not have to “intend” to do it.” - Fahri Azzat, in interview with ASKLEGAL For example, you may be caught doing something that’s considered obscene, but not to you. You may have not intended for it to be “obscene” but it will not be a valid defence.Can you go skinny-dipping or sunbathe nude in Malaysia? From a cultural and religious perspective, nude sunbathing and skinny-dipping in Malaysia should be avoided as a general rule unless it’s on private property and/or in a place secluded from the general public. In public areas, there’s a chance you may land in legal hot water from local by-laws which vary from state to state.For example, the Parks (Federal Territory of Putrajaya) By-Laws 2002 states that it’s an offence for anyone to “use any indecent or offensive language or behave in an indecent or offensive manner,” meaning that you will be charged under this by-law if you were to be nude in any public structures under the jurisdiction of Perbadanan Putrajaya.In East Malaysia, Clause 6 of the Native Courts Enactment 1992 grant authority for Native Courts to charge non-Natives for crimes that involve breaches of local customs and traditions. “...cases arising from breach of native law or custom, religious, matrimonial or sexual, if the written sanction of the District Officer acting on the advice of two Native Chiefs has been obtained to the institution of the proceedings, where one party is a non-native…” The most recent occurrence of this happened in 2015, where locals blamed the Mt. Kinabalu earthquake on 10 foreign tourists who stripped on the mountain - considered sacred ground by the local Kadazandusun community. However, the authorities ultimately decided the case fell under Federal law and charged the tourists under Section 294(a) of the Penal Code. So unless you’re on a privately-owned island, beach, or poolside with no chance of being spotted; it’s probably a much better idea to keep those Speedos on. What if nude pictures or videos of you end up online? Thanks to smartphones, access to a camera is literally less than an arm’s reach away; which may compel some people to take a naughty picture or two. This leads to two questions - what happens if you were to post them online, and what happens if someone posts them online without your knowledge? Posting obscene materials of yourself online is generally a bad idea because these materials can be used as evidence against you in court. You may find yourself facing charges under Section 292 of the Penal Code for possession or distribution of pornographic material, which states in part: “Whoever— (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever..shall be punished with imprisonment for a term which may extend to three years or with fine or with both..” There’s also a chance of getting in trouble with the Malaysian Communications and Multimedia Commission (MCMC), Malaysia’s national regulatory body for the communications and multimedia industry, who may charge you under Section 233(1) of the Communications and Multimedia Act:Section 233 of the Communications and Multimedia Act (In part) “(1) A person who— (a) by means of any network facilities or network service or applications service knowingly— (i) makes, creates or solicits; and(ii) initiates the transmission of,any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person…commits an offence” If the nudity was recorded in a public place, you may also be further charged under Section 294(a) for performing an obscene act in public. This was the case for the participants of the Penang Nude Sports Games 2014, which took place on a private island rented for the occasion. Unfortunately, a video of the event was uploaded by a participant named Albert Yam and subsequently became viral. The participants were charged under Section 294(a) of the Penal Code while Albert received an additional sentence under Section 292 for possession and distribution of pornographic material. However, if the pictures were uploaded by a third party without your permission, you may lodge a complaint with the MCMC in order to initiate legal proceedings and block access to the material. If the suspect is identified, the MCMC may also charge him or her under Section 292 of the Penal Code; and additionally under Sections 233 or 211(1) of the Communications and Multimedia Act : Section 211(1) of the Communications and Multimedia Act (In part) “No content applications service provider, or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person…” Upon consultation with a legal advisor, there is a possibility that you can take up a civil case against the suspect for defamation under the Defamation Act 1957 or the Copyright Act 1987 : “[The] Copyright Act 1987 provides for criminal sanctions against copyright infringers. Section 41(1)(c) of the Copyright Act 1987 makes it an offence to infringe a person’s copyright. … However, this provision is wide enough to cover pictures. It is possible to prosecute a person for distributing pictures of others without permission, especially when it involves a massive number of pictures.” - Foong Cheng Leong, advocate and solicitor, quoted from foochengleong.com Ultimately though, it’s important to note that any material that ends up online may never be fully removed or blocked, especially if they end up on sites outside of Malaysia. If it’s not a place where nudity is acceptable, keep your clothes on! Being that the idea of nudity in Malaysia may be less socially acceptable compared to some other countries, your best bet to avoid being slapped with public indecency charges is to always be on the side of caution - if no one else is nude or if it’s in a public space, it’s probably best to keep yourself dressed accordingly."
"Dasar Penyediaan Sokongan Asas (PSA) Bagi Pekerja Migran Dalam RMK-11 PengenalanPergerakan orang bagi tujuan mencari pekerjaan dan kesejahteraan hidup sudah menjadi sinonim dengan fenomena migrasi pekerja migran. Malahan, Malaysia merupakan salah satu negara destinasi utama bagi pekerja migran di rantau ASEAN. Walaupun wujud cadangan untuk mengurangkan kebergantungan kepada pekerja migran, namun hakikatnya khidmat perburuhan daripada mereka amat di perlukan oleh majikan untuk mengerakkan semua sektor ekonomi negara termasuklah pembinaan dan perladangan. Keperluan ini bukanlah sesuatu yang bersifat berkala, malahan berterusan bagi memastikan kelestarian dan kesejahteraan sektor ekonomi negara sentiasa terpelihara. Bagi tujuan berkenaan, aspek pengurusan pekerja migran menjadi sangat penting, kerana pengurusan yang baik bukan sahaja menjamin jumlah pekerja migran yang mencukupi untuk menjana ekonomi tetapi juga memastikan kelestarian pekerja migran untuk bekerja di Malaysia. Sokongan asas untuk pekerja migranPengenalan Perintah Gaji Minimum 2016 yang mula dikuatkuasa pada 1 Julai 2016 menunjukkan manifestasi kerajaan untuk menambah baik sokongan asas (basic support) pekerja migran khusus bagi aspek struktur gaji minimum. Ini secara tidak langsung memastikan kebajikan terhadap kelangsungan hidup (right to life) pekerja migran terjamin. Namun begitu, Perintah Gaji Minimum 2016 ini masih tidak dipakaikan kepada pekerja rumahtangga yang bergantung kepada perjanjian kerja khusus. Pengurusan pekerja migran menjadi matlamat penting dalam Rancangan Malaysia Ke-11 (2016-2020) di dalam komponen pembangunan modal insan bagi strategi menjana pasaran buruh dalam sebuah negara maju. Bagi tujuan ini, pengurusan pekerja migran merangkumi usaha untuk mengurang kebergantungan terhadap pekerja migran berkemahiran rendah. Aspek perundanganDaripada aspek perundangan pula Akta Kesatuan Sekerja 1959 akan dipinda untuk memberi pertimbangan bagi membenarkan pekerja migran memegang jawatan dalam kesatuan sekerja serta memenuhi keperluan perjanjian perdagangan bebas (FTA) termasuk Komuniti Ekonomi ASEAN (AEC). Kini dasar pengambilan pekerja migran secara komprehensif diwujudkan dengan mengambil kira keperluan industri dan kebajikan pekerja migran. Melalui Penubuhan Pusat Kelulusan Setempat (OSC), peranan penyumberan luar dan orang tengah (agen) dihapuskan. Oleh itu, OSC juga di bentuk bagi memantau kebajikan pekerja migran. Kebajikan pekerja migran bergantung kepada tahap penyediaan sokongan asas sebagai suatu hak asas dalam statut seperti Akta Kerja 1955 (Semenanjung Malaysia), Ordinan Buruh Sabah (Sabah) dan Ordinan Buruh Sarawak, Akta Pampasan Pekerja 1952, Akta Kesatuan Sekerja 1959, Akta Perhubungan Perusahaan 167,Akta Standard-Standard Minimum Perumahan dan Kemudahan Pekerja 1990,Akta Keselamatan dan Kesihatan Pekerjaan 1994. Tanggungjawab majikanDasar pekerja migran kini mahu meletakkan tanggungjawab lebih berat kepada majikan untuk menjaga kebajikan pekerja migran dengan memperkenalkan dasar liabiliti ketat. Dalam perundangan prinsip liabiliti ketat adalah sebahagian dari prinsip common law yang meletakkan tanggungjawab keras kepada majikan. Majikan yang menggaji pekerja migran bertanggungjawab sepenuhnya terhadap proses pengambilan, termasuklah semua kos yang terlibat meliputi saringan kesihatan, penyediaan insurans kemalangan dan yuran pemprosesan penyediaan dokumen kerja. Tanggungjawab keras ini juga meliputi penyediaan sokongan asas seperti penyediaan tempat penginapan (perumahan) dan keperluan asas lain sehingga mereka kembali ke negara asal. Pemakaian dasar liabiliti ketat menjamin hak asas pekerja migran yang sering terdedah kepada pelbagai bentuk eksploitasi. Perlaksanaan dasar liabiliti ketat ini juga di harapkan dapat memastikan amalan pematuhan dikalangan majikan menggajikan pekerja migran. Kata penutupDasar menjamin penyediaan sokongan asas bagi pekerja migran ini bukan sahaja mempromosikan amalan kemanusiaan dengan mematuhi hak asasi manusia, tetapi juga memartabatkan Malaysia sebagai sebuah Negara yang mengamalkan tadbir urus yang baik (Good Governance) untuk pekerja migran. Hubungan diplomatik yang baik dengan negara penghantar pekerja migran perlu di teruskan bagi memastikan pekerja migran yang di hantar adalah yang memenuhi spesifikasi keperluan bagi pembangunan ekonomi Negara.Muhammad Afiq Ahmad TajuddinCalon Doktor FalsafahFakulti Undang-undangUniversiti Kebangsaan MalaysiaEmail: mafiqmd@gmail.comDr Rohani Abdul RahimPensyarah KananFakulti Undang-undangUniversiti Kebangsaan MalaysiaEmail: rar@ukm.edu.myNo Tel:03-89216374Photo credits: MTUC"
"How Do You Start A Small Claims Procedure In Malaysia? Pssst. We wrote an updated version of this article and you can find it here. What is the small claims procedure? What if you have a claim which does not fail under either the Consumer Claims Tribunal or any other tribunals and the sum involved is small, not more than RM5000? You can take it to the Magistrates’ Court through the small claims procedure (Order 93 Rules of Court 2012 (ROC)). You don’t even need a lawyer to do that. Here are some important facts about the small claims court: Set up in 1987 to help the consumer to get quick, cheap and easy legal remedies. Small claims cases not exceeding RM5,000 (Order 93, rule 2 ROC). No lawyer is allowed to represent either the claimant or defendant, unless it is a registered company (Order 93, rule 7). Only the claimant and the defendant are allowed to put their cases forward before a magistrate. The magistrate’s judgement is final and neither party can appeal to a higher court, unless it is on a point of law. What kind of claims can you file? The following are examples of claims that you can file: Refund of money paid for defective goods Refund of wages/salaries paid for work that has not been carried out; Claims for due commissions Claims for payment on supplied facilities, rendered services or undertaken repairs. Before you proceed with your claims, you should: Send a final letter to the other party, threatening court action. Set a time limit for the other party to pay compensation or reimbursement. If you still get nowhere, proceed to file your case in court. How do you file a claim? Just follow these steps to file a claim: Go to the nearest Magistrates’ Court. See the registrar or clerk in charge and ask for Form 198 (Order 93, rule 3(1)). Fill in the form, with all the necessary details (Order 93, rule 3(2)), in four copies (Order 93, rule 5(1)). State when, how and why the claim has arisen. Keep them SHORT and straight to the point. Give the form to the registry of that Magistrates’ Court and pay RM10 (Order 93, rule 5(1)) as a filing fee. The court will inform you and the defendant of the hearing date. If the defendant fails to file his defence within the required period or fails to attend the hearing, the court may give the judgement to you. If the defendant offers to settle out of court before the hearing, you can accept by: writing an acceptance letter to the defendant and sending a copy of your letter to the court. Your case is then considered withdrawn. What happens in court? Both sides present arguments and evidences to support their case. The magistrate will pass judgement after hearing from both sides. If you win the case, the magistrate will award you either the whole claim or part of it. You can also claim for costs not exceeding RM100 (Order 93, rule 15). Pic credits: s.yimg.com"
"No Way To Curb Ah Long's Strong-Arm Tactics Except With Legislation Stories about loan sharks harassing families of errant debtors who have absconded are daily fare, with the matter only coming to light when the victims seek help from MCA Public Services and Complaints Department head Datuk Seri Michael Chong.The Star Online reported that last month, the department received 54 cases involving loan sharks while in June the number rose to 69 cases, which Chong believed was due to gambling during Euro 2016.“This is killing our society and the victims are the relatives of the borrowers,” he said.The Ah Long carries on moneylending activities, charging high interest without a licence under the Moneylender’s Act, 1951. In fact, it is quite common for interest to be as high as 30% or even 40% a month. So, one can expect the debt to quickly spiral out of control with the desperate borrower being hounded to repay. Usually, the moneylender will take the first instalment of interest ""up-front”. Therefore, for a loan of RM1,000 at a rate of 30% per mensum (RM300) the borrower only gets RM700. There are also cases where interest is even collected on a daily basis.And of course, ""security"" is demanded, a vehicle registration book, passports, NRIC cards, ATM cards and sometimes even guarantors signing together with the borrower. Under section 15 of the Moneylenders Act, 1951, a loan by an unlicensed moneylender is unenforceable and moneylenders under the Act are only entitled to charge simple interest of between 12% to 18% per annum, based on whether security for the loan is provided or not.The problem with Ah Longs is not merely the unconscionably high interest rates, but their modus operandi of collection or enforcement. Their anti-social methods border on the criminal, i.e., intimidation, harassment, force and violence, resulting in some cases where the defaulters resorted to suicide.Section 30 of the Moneylenders Act addresses the collection methods of the licensed moneylender and prohibits certain methods which border on harassment of a debtor. However, in many instances, the Ah Long and his merry band of enforcers do as they please -- splashing vehicles and properties with red paint is a very common practise.Part of the problem is their rampant advertising. It is rare not to find buntings, banners, posters polluting electric poles, traffic lights and buildings. Take down one and within a few days, they are back. Their phone numbers are displayed proudly for everyone to see and yet, they are still everywhere.People wonder why the cops are not shutting them down -- it should be an easy matter instead of just getting those numbers deactivated! Perhaps it is time to legislate against this bloodsuckers and amend the relevant legislation pertaining to the high interest element and to their less than friendly methods of collection.Otherwise, such cases of thuggish harassment will continue and victims will continue to suffer."
"How to avoid being fined RM50,000 for selling online Online businesses must be registered SSM chairman Datuk Seri Alias Ahmad said many online entrepreneurs have not registered their businesses, with only 30,000 having done so between 2012 and Sunday. “We have taken legal action against 478 online individual businesses and online companies last year.” – The Star, 26th January 2016. So all you online businesses out there, you need to register yourselves with the authorities. Namely, with the Companies Commission of Malaysia also known as Suruhanjaya Syarikat Malaysia (SSM) What is a business? ""business"" includes every form of trade, commerce, craftsmanship, calling, profession., or other activity carried on for the purposes of gain:This is provided by Section 2 of the Registration of Businesses Act 1957 However, please note that the Registration of Businesses Act 1957 DOES NOT APPLY to Sabah & Sarawak. There is a different set of legislation for East Malaysia. Who is SSM? SSM governs the registration of businesses and companies in Malaysia. Why must we register? Well, Section 12 (1) of the Registration of Businesses Act 1957 states that all businesses MUST be registered. Failing which it is an offence. Register as what? Sole proprietor – means you run the business on your own without any legally recognised partners. You are the only person who will be responsible for the business liabilities. Registration is RM30 only, if the business is in your name or RM60 if the business is not in your own name. Partnership – this means there is more than one person who legally owns the business. All partners are legally bound for any of the business liabilities. Registration of a partnership is RM60. Company – a company is a separate legal entity. It’s akin to a person. The company is liable and not always the shareholders. There is more to do in setting up a company as the provisions of the Companies Act 1965 will apply. SSM Table Of Fees - sole proprietor or partnership Registration procedure Just follow this guide provided by SSM. Picture credit: thestar.com.my Where can you register? Registration can be done at any SSM counter throughout Malaysia. Here is a list of their offices. Happy registering and don’t forget to pay your taxes!"
"​5 Things About the Prime Minister 5 Things About the Prime Minister Who is he? The Prime Minister is the Head of Government and he is known as the leader of the country. He governs the country with rest of the executive branch according to the laws made by Parliament. He has his own team called cabinet who are made up of ministers and deputy ministers. Although constitution makes no provision for Deputy Prime Minister, Malaysia always had a Deputy Prime Minister who is the right hand man for the Prime Minister. How he is chosen? The Prime Minister is appointed by the Yang di-Pertuan Agong (YDA). In appointing the Prime Minister, the YDA acts in his discretion. However, he may only appoint a member of Dewan Rakyat as Prime Minister, who in his judgement, is likely to command the confidence of the majority of the members of the Dewan Rakyat. What he advises YDA on? He advises the YDA on the appointment of 44 out of 70 Senators and also the appointment of judges of the superior courts. Besides that, the Attorney General and the Auditor General are appointed based on his advice. Appointments for the Governors of Malacca, Penang, Sabah and Sarawak are also done based on Prime Minister’s advice. What is his role in the cabinet? The Prime Minister heads the cabinet.The cabinet consists of all ministers and these ministers run and control the functions of the various ministries that govern the country. Ministers are appointed by YDA upon the advice of the Prime Minister while members of the cabinet must also be members of Parliament. How do you remove him? Prime Minister requires the confidence of the majority of the members of Parliament to stay in office. He would have to tender his resignation of the whole cabinet to the YDA if he ceases to command the confidence of the majority of the members of the Dewan Rakyat. Then the YDA will appoint a new Prime Minister. Otherwise, he may advise the YDA to dissolve the Parliament so that a general election can be called."
"7 Things About Our Constitution 7 Things About Our ConstitutionConstitution is simplest form of legal document and no one is above it. We are Malaysian because the constitution says so. We have a prime minister because that is what constitution says. It sets out our democratic system and our judiciary.The only way to amend our constitution is with the two third majority vote from our members of Parliament. 1. Limits power of governmentIf you are a Christian, you are allowed to practice your faith in peace and harmony because the constitution allows other religion to be practiced. At the same time it recognizes Islam as the official religion of Federation. Thus,the government can’t simply come up with a law tomorrow, stating that Christians aren’t allowed to practice without amending the constitution.2. Sets out our rightYou can balik kampung every festive holiday driving from one state to another because the constitution guarantees freedom of movement. You get salary every month from your work because the constitution says no to slavery and forced labour. The constitution sets out our fundamental rights and liberties. 3. Sets out our democratic systemIt sets out that our Head of Federation is Yang di-Pertuan Agong, who is elected by the Conference of Rulers. It limits his term for five years. It establishes the state government and federal government. It gives each state their own State Legislative Assembly to make laws and also their own constitution. Meanwhile,our federal government cabinet and office of Prime Minister also comes under constitution4. Supreme law of the landIt’s supreme law of the land and our constitution determines who can make laws. Even the prime minister is bound by it. It also limits what kind of law can be made.It also, guarantees special powers to Sabah and Sarawak. The way you live your life is determined by the constitution. Our statutes are bound by constitution. It is possible for a statute to be null and void because it goes against constitution.5. We can vote because of the constitution One of the fundamental rights every citizen should exercise is their right to vote. This right exists because the constitution says so. Thus, you can vote for every state and federal election without fear. The Election Commission, which must enjoys the public confidence, will be in charge of conducting all election and providing list of voters. So, don’t forget to vote.6. Constitution allows you to be Malaysian For you to be a Malaysian citizen, the constitution states out certain conditions. One of the condition is that you are born in Malaysia. Malaysian constitution also doesn't allow you to hold dual citizenship. You are automatically no longer a Malaysian citizen the moment you are granted citizenship from other country. 7. It gives out special rightsThe indigenous people of Sabah and Sarawak with Malays are guaranteed special rights under the constitution. Meanwhile, Yang di-Pertuan Agong has special responsibility of safeguarding their special position. Besides, it states that anyone who does not belong to Sabah and Sarawak must have special pass to enter Sabah or Sarawak. pic source"
"Who Runs my Country? Executive branch runs the government You always hear that the government decides whether to increase tax or comes up with different law. But who are these people behind the government? In the federal government, the executive consists of the Conference of Rulers, Yang di-Pertuan Agong, Prime Minister, Cabinet and Public Services. These are the executive who form the federal government and governs the country according to the laws made by Parliament. We all know the executive that runs the daily affairs of the country consists of the Prime Minister and his cabinet. Who is the Yang di-Pertuan Agong? Meanwhile, Yang di-Pertuan Agong is constitutional monarch. He is the Supreme Head of Federation and Supreme Commander of the Armed Forces. He is also the Head of Islam in his home state, Malacca, Penang, Sabah, Sarawak and the Federal Territories of Kuala Lumpur, Labuan and Putrajaya. Yang di-Pertuan Agong also must safeguard the special position of the Malays and the natives of Sabah and Sarawak and the legitimate interests of other communities. For few functions such as appointment of the Prime Minister, withholding of consent to a request to dissolve Parliament and calling a meeting of the Conference of Rulers, the Yang di-Pertuan Agong can act on his own discretion. What is the Prime Minister's function? The Prime Minister is appointed by the Yang di-Pertuan Agong and is the Head of Government. However, the Prime Minister is usually the leader of the controlling party in the parliament. He holds the role of appointing Attorney General, Auditor General and judges of the superior courts. Although some functions are said to be done by Yang di-Pertuan Agong but actually it is done on the advice of Prime Minister. When can the Prime Minister be removed? He can be removed if the he ceases to command the confidence of the majority of the members of the Dewan Rakyat. After that, he would have to either tender the resignation of the whole Cabinet to the Yang di-Pertuan Agong or advise him to dissolve the Parliament for purpose of general election. What does the Cabinet do? The Cabinet, who are Members of Parliament, consist of Ministers who run and control the functions of various ministries that govern the country. They are selected by the Prime Minister and appointed by the Yang di-Pertuan Agong. To whom does the Prime Minister and Cabinet answer to? Ministers are responsible to the Parliament which makes the government accountable to Parliament through question time where Members of the Parliament question Ministers on government policy. Controls are also exerted through Select Committees formed in Parliament."
"I’m an Employee, Not a Slave. I Know My Rights! Actually, you may not even be an ‘employee’Surprised?The Employment Act isn’t what it seems. And, as it turns out, not everyone falls under it.. The Employment Act 1955 The Employment Act 1955 (amended by Employment Amendment Act 2012) applies throughout West Malaysia. So, if you're from Sabah or Sarawak, you're covered under the Sabah Labour Ordinance or Sarawak Labour Ordinance instead. However, these laws are substantially similar to the Employment Act 1955. Let's just focus on the Employment Act 1955.Now… Here’s the interesting part…Are you an ""employee"" under the Employment Act? Section 2 of the Act defines an Employee: as any person whose wages does not exceed RM2000 per month under a contract of service with an employerOR any manual worker, regardless of monthly pay, entering into a contract of service with an employer anyone who supervises people doing manual labour any operator of mechanically-propelled vehicles a seaman on a Malaysian-registered vessel, with certain exceptions a domestic servant Section 2 Employment Act 1955: ""employee"" means any person or class of persons --(a) included in any category in the First Schedule to the extent specified therein; or(b) in respect of whom the Minister makes an order under subsection (3) or section 2A If indeed you are… Then the Employment Act tells you about your rights in the workplace and what you can do if your rights are denied.Here’s an outline of your benefits - Benefits under the Employment Act If you are defined as an employee under the Act, you enjoy certain benefits under the Act. These benefits includes: Compulsory one day of rest in every seven days (Section 59) You can't be required to work more than 48 hours in a week (Section 60A) You are entitled to 11 days of gazetted holidays (Section 60D) You are entitled to a certain number of annual leave days, depending on your length of service (Section 60E) You are entitled to a number of sick leave days, according to your length of service (Section 60F) But, what about those who earn more than RM2000?Based on the above, you’re in a different category and considered a workman instead. So, are you even an employee? If you’re not, stay tuned for our next piece!"
"Judiciary needs to keep public perception in mind Joseph Francisjoseph@asklegal.myAt the end, perception matters as much as principles, as justice must not only be done but it must also be seen to be done.If the doctrine of separation of powers is the cornerstone of any functioning democracy, wonders senior lawyer Gerard Lourdesamy, why should the Prime Minister be able to filter the names of judges to be considered for appointment to the superior courts. ""Why is the judiciary collectively keeping quiet about this despite the Bar Council taking up this issue with the government?""(Editor's Comment: Article 122B(1) states superior court judges are appointed by the Yang Dipertuan Agong, acting on ADVICE of the PRIME MINISTER)Rightly, or wrongly, there's a perception among the public that the government only wants certain types of judges to be promoted to the superior courts, added Gerard who has been in private practice for nearly a quarter century. ""Sadly, this has on occasion been reflected in some of the more questionable decisions of the courts.""Gerard was giving the second part of a take on the remarks by the Chief Justice during the Legal Year 2016. The Chief Justice, as the head of the judiciary, rightly touched on the Constitution, the rule of law, human rights and the administration of justice, he reiterated in the second part of an extended email.At the end perception matters as much as principles, continued Gerard, as justice must not only be done but it must also be seen to be done. ""It's telling when we have a situation where at least three senior judges of the Federal Court, one since retired, and all well-known for their independence and impartiality, and who have on occasion dissented on important constitutional cases, are now seldom asked to sit on important constitutional appeals or petitions.""The most senior judge of the Court of Appeal, recently retired, did not even get a chance of elevation to the Federal Court despite his legendary integrity, judicial aptitude and fearless independence, said Gerard. ""It was reportedly because of the alleged machinations of the Executive.""There wasn't any sound from senior judges in defence of judicial independence, said the senior lawyer. ""It was imperative to review the arbitrary right of the Prime Minister to reject a name put to him for judicial appointment for the consideration of the Conference of Rulers.""The Chief Justice can, at the request of the Prime Minister, said Gerard elsewhere, almost immediately assign High Court judges to hear security offences cases in special courts to be set up for that purpose without even flinching about the doctrine of separation of powers that he so vigorously, and rightly so, defends.Hence, said the senior lawyer, it's regrettable that a judge of the Court of Appeal was reprimanded for suggesting the setting of a special court to settle inter-religious disputes on the dissolution of civil marriages and child custody in cases where one party has converted to Islam in the course of his dissenting judgment in a recent child custody case. ""Since time immemorial, judges have commented on the need for legislative reform or policy changes from a legal as opposed to a political perspective.""""There's nothing sacrilegious about this. It does not offend the doctrine of separation of powers.""The judiciary, being a component of the government is entitled to comment on the law and matters that touch upon the administration of law and justice, argued Gerard. ""If all such matters are deemed to be policy decisions, exclusively within the purview of the Executive, by the same token no specialist courts should be set up unless the government first makes a policy decision on the same.""Pix Credit: wikiwand"
"4 Ways to End Kedah MB crisis 4 Ways to End Kedah MB crisisAfter Perak and Selangor, we now have Kedah currently undergoing political crisis with their Menteri Besar. This all started when 14 out of the 15 Division Chiefs of UMNO Kedah called for press conference and declared Menteri Besar Mukhriz Mahathir lost the confidence of majority. The move to replace Mukhriz has been going on with a total of 19 out of the 21 Barisan Nasional assemblymen have signed statutory declarations supporting a change in Menteri Besar. Only Mukhriz and Jitra assemblyman Datuk Aminuddin Omar did not sign.With that, here are four possible ways to solve the ongoing crisis.Dissolution of state assembly Mukhriz can request the Ruler to dissolve the state legislative assembly but this is subject to the discretion of the Sultan or in this case, the Regency Council as the Sultan of Kedah is also presently the Agong. If the Palace is against the idea of dissolving state legislative assembly, the MB and his entire state executive council will have to tender their resignation. Then, the Ruler will appoint a new MB based on his discretion.Motion of no confidenceA motion of no confidence may be proposed by a member of state assembly against Mukhriz.The members of the State Legislation will then vote on it. If the MB obtains a simple majority vote, he then stays on. If not … he goes back to Kuala Lumpur.pic creditSultan intervenes?History has shown that this can happen and it has happened on a few occasions. However, the Regency Council's press release stated that the Palace will play no part in this political crisis. In fact, they were reports that certain Regency Council members were upset over alleged reports that the Council requested more than one name on the replacement MB list, which happened during Selangor crisis.Mukhriz resignsThis would be be the likely outcome out of the ongoing political crisis in Kedah. Datuk Seri Mukhriz Mahathir will be removed as current Menteri Besar of Kedah, his likely replacement is rumoured to be Deputy Kedah Umno Chief, Datuk Seri Ahmad Bashah Md Hanipah. Once he accepts his removal, he would have to resign and vacate the Menteri Besar’s office. The next process will involve submitting a name or a list of names of potential Menteri Besar to the Palace, then awaiting consent from the Palace.No matter who is the Menteri Besar, life goes on. The politicians are here to serve us, the rakyat."
"The Attorney General is the “super lawyer” of Malaysia. But what does he do? When you report an incident to the Malaysian police, what they need to do (in summary) is gather information, then file an investigation report with the Public Prosecutor (PP) - who is also known as the Attorney General (AG). You may have heard a lot about the AG and his Deputy Public Prosecutors (DPP) in news reports where a criminal was charged in court, but what do the AG and his DPPs actually do? First, let’s get into how exactly person can become the AG of Malaysia? Is it a job that anyone can apply for? It’s not easy to become the AG The position of Attorney General itself is created by Article 145 of our Federal Constitution, and you might be disappointed to learn that it’s not a position open for applications. To become the Attorney General, you have to be selected by the Yang di-Pertuan Agong, on the advice of the Prime Minister. But even to be considered in the first place, you have to be qualified as a judge of the Federal Court of Malaysia (the highest ranking court). According to Article 123 of the Federal Constitution, to qualify as a Federal Court judge, a person needs to: be a Malaysian citizen, and have been a lawyer handling cases in the Superior Courts of Malaysia, or been a member of Malaysia’s judicial and legal services for the past 10 years. That’s quite a resume you need to have on top of being hand picked by the Agong (with the Prime Minister’s input of course). For a job that is so difficult to get, the duties of the Attorney General are: Article 145(2) - Federal Constitution“to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.” In very basic terms, this means that he’s the government’s head lawyer. The Attorney General of Malaysia also has roles as: The Head of the Attorney General’s Chamber (obviously) The Chairman of the Legal Profession Qualifying Board (where lawyers get their certification from) A member of the Judicial and Legal Service Commission (the government branch of legal officers) A member of the Pardons Board of each State in Malaysia (through Article 42(5) of the Federal Constitution) That’s a lot of official roles to have for one person, so it seems that the AG holds a position of great responsibility, so what are the AG’s great powers? The AG and his deputies are in charge of proving criminals guilty The Attorney General controls all criminal proceedings in Malaysia. From Article 145(3) of the Federal Constitution, the AG has the power to start, conduct, and discontinue any legal proceedings for a crime, other than those governed by a Syariah court, a native court (those that enforce native laws and customs), or a court martial (those that deal with the military). This means that he decides if a crime gets brought to a criminal court, and what crime a person gets slapped with. This power is also covered in the Criminal Procedure Code (CPC). Section 376(1) makes the Attorney General the Public Prosecutor of the nation, and he has control and direction of all criminal prosecutions and proceedings conducted under the CPC. The Attorney General can also appoint legally qualified people to be Deputy Public Prosecutors and Assistant Public Prosecutors, who are the ones who will charge criminals in courts all over Malaysia, and are responsible for proving the case. [READ MORE – Here’s what happens in a criminal trial] Since the AG also sits on the Pardons Board of every State in Malaysia, he is also one of the people who decides if a criminal can get a Royal Pardon for the Sultan of that State - and therefore escape punishment for their crime. We’ll get more into how that works in a future article! To do their job, the AG and his Public Prosecutors actually have a pretty wide freedom on whether to charge a person or not, and how serious of a crime to charge a person with - for reasons we’ll look at below. The “badder” you are, the “better” the law will be Under Article 145(3) of the Federal Constitution, the Attorney General has the discretion to charge criminals in court. This discretion allows him to choose whether or not to bring a case to court at all. It helps to prioritize serious cases, put cases that don’t have enough evidence yet on standby, and also throw out frivolous cases. The AG also considers what law to charge a person with. To use an example from Tun Mohamed Suffian (a former Lord President of our Federal Court) - let’s take A, B, and C who were found in illegal possession of a gun. A had a gun license but forgot to renew it, B never had a license but has a criminal record, and C never had a license but is a well-known murderer that very few people are willing to testify against in court. Does the AG have to charge these people equally? This matter came into question in the case of Johnson Tan Han Seng v PP in 1975. Johnson was charged with illegal possession of a firearm, but not under the usual law under Section 8 of the Arms Act 1960 which carries a maximum prison term of 7 years. He was instead charged under an emergency law made for the 1969 riot - Section 8 of the Firearms (Increased Penalties) Act 1971 which has a maximum prison term of 14 years. The answer is yes, if the Attorney General sees fit, he can charge a criminal under a harsher law instead. The AG can choose to charge repeat offenders, or hardened criminals with harsher laws, just like how a judge can decide whether to give the minimum or even the maximum penalty. If you’re wondering how this ties in to our right to equality before the law in Article 8 of the Federal Constitution, you can see it as the Attorney General treating all first-time offenders equally, and all repeat offenders equally. It does not mean that the AG will treat a desperate parent who stole some food the same as a hardened robber with a gun. From that, the AG also has to consider which court to charge a criminal in. This is because the lower courts of Malaysia have an upper limit on the judgments they can give out. For example, a First Class Magistrates Court can only hand out sentences of up to 5 years of imprisonment, or up to RM10,000 in fine as stipulated by Section 87 of the Subordinate Courts Act 1948. Whereas you’ll find that Section 22 of the Courts of Judicature Act 1964 gives the High Court of Malaysia the power to pass any sentence allowed by law. So if the AG needs to charge a death penalty case, he’ll bring it to the High Court instead of a Magistrates Court, but he’ll send a minor crime to a lower court to save the High Court’s time. It’s a powerful and necessary position The administrative work and lawyering aside, the Attorney General of Malaysia is a powerful person. It’s that much more important for this person to be well versed in the law, hence the high requirements to qualify as the AG. However, the AG’s powers are often criticized for being too wide because they can be abused. For example, if the government commits a wrongdoing, then the AG has the power to decide whether to prosecute the government or not. While in the past, the AG was considered to have absolute discretion over his duty to prosecute criminals (Long bin Samat & Ors v Public Prosecutor), the position of law shifted in the case of Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail & Ors to say that the AG’s decisions can be challenged in a court of law by anyone who is affected by that decision. [READ MORE - How do you take the government to court for an abuse of power?] Since GE14, the Pakatan Harapan government has promised to separate the role of Attorney General from that of the Public Prosecutor. In theory, this means that the Attorney General will still advise the government on legal matters, but the power to prosecute people in the courts will rest with the Public Prosecutor instead. So far, the laws around this have yet to be amended, so we’ll have to see exactly how this plays out in future."
"AG Should Combat Corruption, Not Facilitate it PRESS STATEMENT: The United Nations Convention against Corruption (UNCAC) calls upon State Parties to take appropriate measures for the protection of witnesses, experts, victims and whistleblowers against retaliation or intimidation (Article 32 and 33). ""I am not joking. If I have 90 percent of evidence, I will charge the journalist, editor, assistant editor and editor-in-chief. I am serious, no kidding. We have too many leakages of secrets in Malaysia”. Attorney General Tan Sri Mohamed Apandi AliThe Centre to Combat Corruption & Cronyism (C4) is in no mood for jokes, either!The Attorney General’s (AG) proposals to amend the Official Secrets Act (OSA) for lifetime imprisonments and capital punishments on whistleblowers, is an unabashed act meant to conceal the State’s dirty secrets away from the public.The OSA is a preventive law, the most impermeable type, and harnesses the power of deterrence through broad-spectrum definitions, strict liability offences and allows extensive enforcement powers that create culpability even when there is no criminal intent. The OSA does not include a harm test nor public interest exceptions.The wide net of the OSA over all classes of official information means the act is not simply a tool to protect national security. It has clearly acted as a shield to conceal the sins of corruption, punish the whistleblower, and mushroomed a culture of impunity while helping shape a kleptocratic political leadership.Last June 2015, C4 released a comprehensive position paper on the OSA, and has analysed how secrecy laws facilitate corruption, and grows with it a culture of impunity.The clandestine nature of the crime of corruption and absence of individual victim pose unique challenges in obtaining information of criminality and securing evidence to prosecute wrongdoers. Witness and whistleblower accounts often serve as an invaluable source of information on which law enforcement can gain insights into the occurrence of corrupt acts and can provide incriminating evidence to secure conviction.The United Nations Convention against Corruption (UNCAC) calls upon State Parties to take appropriate measures for the protection of witnesses, experts, victims and whistleblowers against retaliation or intimidation (Article 32 and 33). These may include measures to ensure the physical and psychological protection of witnesses as well as for providing evidentiary rules allowing a witness to testify in a manner that ensures his/her safety. Similarly, Article 37(4) requires states to put in place effective measures to encourage reporting by persons implicated while and Article 39(2) on encouraging reporting to law-enforcement authorities. Malaysia is a signatory of the UNCAC, and is obliged to respect and implement the provisions of the conventions.As such the proposals of the AG run contrary to the UNCAC and the spirit of combating corruption.Instead as top legal personality in the country C4 urges the AG to:1. Review the OSA to fight corruption not facilitate it, and make it a legal right for the public to obtain information, on issues not related to national security.2. Enact a law that deals with misconduct of public officials, when it comes to wastage and leakage of public funds, bribery and outright corruption. This was tabled previously for the AG’s consideration but received no traction and has yet to be tabled in Parliament3. Strengthen the Whistleblower Protection Act, to enable a protective and sustainable culture of whistle blowing in this country. It is only with better protection will reporting about corruption become a reality. Amend S7 of the Act to allow for better protection of the whistleblower, especially with regard to confidential government information.4. Amend the MACC Act s 23 & 36 to allow MACC to go after public officials with unexplained wealth, and for those who abuse public office for personal gain.We are not amused!The task of the Attorney General is crucial in shaping strong anti graft laws in this country. Many proposals have been tabled by the Bar Council and civil society, but have yet to receive a response. So why then is the AG creating an impression that he is glossing over the sins of corruption? That the corrupt can roam free during his tenure?This does not augur well for the future of this country.PIX Credit: GoogleReleased ByCynthia Gabriel Founding Director Centre to Combat Corruption & Cronyism (C4)City Councilor - Petaling Jaya"
"Five Mistakes To Avoid When Hiring A Lawyer Before you hire a lawyer.. You’ve decided that you need a lawyer. But, how do you know you’re hiring the right one or whether you’ve got the right reason for getting yourself a lawyer?Remember, hiring a lawyer costs a LOT of money.And, you’ll be wasting lots of money if you choose the wrong kind of lawyer or do the wrong thing when hiring one. 1. Wanting to get revenge You wanted to get even with someone got you upset. So you decided to use the courts to get even and make yourself feel better. It is an EXPENSIVE way to do so! Don’t waste your money hiring a lawyer for petty grudges.2. Hiring a lawyer you’re not comfortable withDo you feel comfortable talking with your lawyer? Does he give you his full attention when you’re explaining your legal problems? If not, better look for someone else, then. 3. Not telling your lawyer everything about your caseAny information that you withold from your lawyer can ruin his entire legal strategy. Sooner or later, that information will eventually come out, either through your own lawyer or through the other side. By that time, it may be to late for him to do damage control. You might end up losing your case4. Failing to make sure that your lawyer has no conflict of interestPlease avoid working with a lawyer who used to represent a person/organisation that you’re currently litigating against. You might end up wondering whether he is acting in your best interest 5. Not ‘shopping’ around for lawyers There is more than one way to solve a legal problem. You’ll hear different approaches to the same problem when you talk to different lawyers. And, you’ll notice the different pricing too!Picture credits: ochrach.com"
"Civil Servants Shouldn't Get Six-Hour Work Day Government servants nationwide are probably keeping their fingers and toes crossed that a proposal for six-hour work days will become a reality.However, this suggestion definitely merits a lot of study especially since this sector also encompasses essential services like the security forces and staff in government clinics and hospitals. If the suggestion sees the cold light of day, does this mean government offices' also need to be shortened? Or does this mean the government needs to bolster an already bloated civil service?While Women, Family and Community Development Minister Datuk Seri Rohani Abdul Karim approved in principle the idea mooted by the Malayan Trade Unions Congress (MTUC), she was quick to add: “What is most important is that the job is done while the quality of work is not compromised.""Rohani pointed out in Malacca yesterday that shorter working hours might not necessarily affect productivity as government workers could still continue to work from home.Although this may benefit their families, it is unlikely that some things can work this way. Take the courts and land offices for example. Somehow, I just can't see court staff lugging work back to finish. And lawyers would be horrified if this happened. Talk about documents and whole files going missing, this is already happening now. Not to mention, more ways for corruption and abuse of power to flourish. Try chasing down documents, chances are, the court staff is never around when you are looking for them. They are usually either ""having coffee"", ""praying"", ""attending kursus"", ""cuti bersalin"", ""having meetings"", the list goes on.And this coming up just after the shenanigans of DBKL officers was revealed recently. An idle mind is a devil's playground. Give them too much free time and who knows what people can resort to.What about our police force? Runner lawyers can relate their nightmares about tracking down police officers and investigation documents. Plenty of man-hours are wasted and they are usually told to come back another day because things are not ready. And good luck trying to get the Investigating Officer to come to court to testify. And do we even need to talk about government hospitals? There is a shortage of staff and if this is implemented, what about patients who need round-the-clock monitoring?So yes, the authorities and relevant stakeholders need to sit down and thrash out the issue instead of just blindly adopting it. And while they are at it, also discuss how to boost civil servants' productivity."
"I Need A Lawyer! Why do I need a lawyer? Like it or not, at some point in your life you’ll need a lawyer to help with your legal problems. How are they helpful? Lawyers can help you in these situations: Advising you on the terms of contract documents before signing it. Advising you on marital issues such as divorce and child custody Advising you on property sale and transfer procedures Making a claim on your behalf when collecting debt. When do I need a lawyer? You will need a lawyer:to get advice on legal problemto represent you in courtwhen you are suing someonewhen you are being suedwhen you are charged with a criminal offenceto help you in handling of your legal rights How do I look for a lawyer? You can get a lawyer by:getting recommendations from your friends, family or colleagueslooking up the Malaysian Bar Council directory How much does it costs? The legal fees would depend on several things: the time it takes to do the work the amount of work done on your behalf the difficulty of the work involved What if I can’t afford a lawyer? There are two options you can take: The Bar Council-run Legal Aid Centre, located throughout most Peninsular Malaysian cities and town, could give you assistance. The Government-run Legal Aid Scheme is available if you need legal assistance, only in civil matters, but cannot afford to pay fees. Remember that you’ll need to pass a means test to qualify for assistance from either of these two bodies. You’ll have to give information on your income, savings and any property that you owned.So, you should know by now that lawyers are useful in helping you with your legal matters. They are human beings too, like you and I!Picture credits: Radio Times"
"Will Penang's Pre-War Properties Soon Go The Way Of The Dodo? In the last few days, there has been much concern about foreigners buying up pre-war properties in Penang and non-governmental association George Town Heritage Action has criticised the state government for its apparent lack of control over the alleged World Class Land (WCL) buying spree.“This company’s business model is to buy the properties, evict the tenants, renovate or rebuild, and then drastically increase rentals,” said co-founder Mark Lay, who claimed it is still on an acquisition track.At a press conference on Thursday, Lay revealed a list of 236 properties purportedly acquired by WCL through several subsidiaries.Lay claimed that buyers are snapping up buildings that are located just outside the state’s heritage enclave as these properties are not accorded heritage protection by Unesco.Lay told NST that newly-appointed heritage commissioner Datuk Mokhtar Jait had the power to protect heritage buildings under the Penang Heritage Enactment 2011 (Regulation 2016), which was gazetted on Thursday. He said the commissioner had the authority to gazette any premises he deemed an heritage site to prevent them from being sold. “The commissioner has the discretion to protect old buildings. He has the power to stop renovation of pre-war houses, and I urge him to address the matter of bulk buying of old houses in the heritage zone promptly.” The problem is, cash is king and unless funds come in to protect our heritage, these dilapidated buildings will continue deteriorating. This doesn't bode well for the owners as well, who can't raise the rental too much.In a Catch-22 situation, their only option seems to be to sell and make some money out of it. The usual modus operandi for these purchasers seems to be to tear down and rebuild. It definitely makes more business sense since these properties are on valuable prime land. There have been instances of Malaysians buying such properties, rehabilitating and then putting them to good use, like architect Hijjas Kasturi who turned his into a hotel. But how many people can afford to do that? Such ventures would definitely run into hundreds of thousands of ringgit. And that is probably only for renovation costs. The English portal reported that since December 2013, WCL has reportedly bought 236 pre-war houses on the island. Totalling more than 250,000 sq ft, the acquisition covers the size of 26 football fields.Recently, it applied to build a 46-storey condominium tower in Gurdwara Road, just 200m from Komtar after snapping up another 37 pre-war properties in that area.Its latest block buy appears to be 26 pre-war houses on Penang Road and Bertam Lane, owned by six descendants of Tunku Kudin, the great grand uncle of the late first Prime Minister, for nearly 100 years.WCL offered about RM980 per sq ft, totalling RM21 million for the properties, located just across from Komtar.Tengku Abdullah Tengku Mahadi, 61, who collected the rent on behalf of his 92-year-old father, said the deal was sealed in Thailand through one of the six heirs who spoke for all of them.“All the heirs are in their late 80s and 90s. It will cost too much to develop the land ourselves.“We didn’t really feel like selling. We know the new owner will change the whole place but we are all old and don’t want to stand in the way of development,” he told The Star.He said the heirs only earned about RM50 per month from each unit when the Rent Control Act was in force. After the act was repealed in 1997, rental was raised to about RM600 where it had stayed the same ever since.Lay warned that if the state government allowed “one company to accumulate more than 230 pre-war houses, it will kill diversity and people’s moral rights to the city”.“Our concern is also socio-cultural. Any company can damage the fabric of George Town when they have a monopoly,” he added.In June, The Star reported that Singaporean companies typically raise rentals by 400% to 500% after sprucing up the old houses.Penang Town and Country Planning Committee chairman Jagdeep Singh Deo responded by saying the state cannot interfere with free enterprise.According to eviction notices by WCL's lawyers, the 60-plus tenants have until end November to move out."
"What Is Child Abuse? What Constitutes Child Abuse?For a long time now, child abuse has been a global issue and, very often, we come across cases of child abuse in Malaysia. But first, what constitutes child abuse? Physical abuseSection 17(2) Child Act 2001:A child is physically injured if there is substantial and observable injury to any part of the child's body as a result of the non-accidental application of force or an agent to the child's body that is evidenced by a laceration, a contusion, an abrasion, a scar, a fracture or other bone injury, a dislocation, a sprain, haemorrhaging, the rupture of a viscus, a burn, a scald, the loss or alteration of consciousness or physiological functioning the loss of hair or teeth; Emotional abuseSection 17(2) Child Act 2001:A child is emotionally injured if there is substantial and observable impairment of the child's mental or emotional functioning that is evidenced by:a mental or behavioural disorder, including anxiety depression withdrawal aggression delayed development Sexual AbuseSection 17(2) Child Act 2001:A child is sexually abused if he has taken part, whether as a participant or an observer, in any activity which is sexual in nature for the purposes of—(i) any pornographic, obscene or indecent material, photograph, recording, film, videotape or performance; or(ii) sexual exploitation by any person for that person's or another person's sexual gratification.Neglect Section 33 Child Act 2001:Any person who, being a parent or a guardian or a person for the time being having the care of a child, leaves that child:(a) without making reasonable provision for the supervision and care of the child;(b) for a period which is unreasonable having regard to all the circumstances; or(c) under conditions which are unreasonable having regard to all the circumstances,commits an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years or to both.Reporting child abuseUnfortunately, child abuse cases are under-reported for various reasons and often go unnoticed by others. Furthermore, survivors are timid and do not speak about the abuse.If you are suspicious or have concerns of a child being harmed, you can make a report and get help from the child’s family members.You can call 15999, Childline Malaysia by providing them information such as: the victim's address or location, the abuse type, facts of the case and, most importantly, the abuser's identity or any other information related to the abuser.Remember to get a case number to refer to as it is easier to follow up.If you are working with children, learn to read the signs of abuse and do not hesitate to take action.Picture credits: lvcriminaldefense"
"Too Early To Rejoice, Says Lawyer Representing Wife In Interfaith Custody Fight LAWYERS are taking a ""wait and see"" approach over news that an amendment to resolve interfaith custody disputes will be tabled in Parliament in October.One such lawyer is M. Kulasegaran, who is representing kindergarten teacher M. Indira Gandhi,the long-suffering mother embroiled in a bitter custody battle with her Muslim convert ex-husband who quietly converted their three children to Islam and then took off with their then 11-month-old daughter.“Prime Minister Najib Abdul Razak’s disclosure that amendments to the Law Reform Act 1976 on marriage and divorce will be tabled in October’s sitting of Parliament is balm for battered hearts, especially in cases where estranged parents fight for the custody of children who have been converted to Islam by a converted spouse.”Kulasegaran, who is also DAP MP for Ipoh Barat said the proposed amendments to enable child custody disputes in civilly-contracted marriages to be resolved in civil courts under the Act was the “only logical nostrum for a troubled scenario where the application of supremacist religious principles inevitably means civil ones are trolled”. However, he warned it was to early to rejoice just yet. “The forces of religious reaction may yet intervene to derail matters -- let’s hope they don't and if they do, they don’t succeed, because this has been a hopelessly protracted issue that cries out for the civil remedy now proposed by the government.” According to the Malay Mail Online, in 1999, the Cabinet had decided to ban the unilateral conversion of children, but the proposed legal amendments were shelved following the intervention of the Conference of Rulers hours before they could be tabled in Parliament.Putrajaya had then proposed amendments to the Act, the Islamic Family Law (Federal Territories) Act 1984 and the Administration of Islamic Law (Federal Territories) Act 1993 to ensure that issues like child support and custody would be determined by the court in which the marriage had been registered in, regardless of whether one spouse embraced another religion later on.According to theSundaily yesterday, Najib, in his 2016 National Women's Day speech at the Putrajaya International Convention Centre, said the amendment to the Act would be based on three principles.Firstly, issues related to divorce for a civil-registered marriage had to be resolved in the civil court to ensure that claims such as child custody rights and alimony were protected and secured.Secondly, the premier said the amendment would be based on the principle of universal justice; and lastly, that the conflict between the civil and syariah courts due to the conversion to Islam by one of the marriage partners would be resolved.""The three principles are clear. If we were married under the civil law ... all affairs must be settled in the civil court. I believe the principles are very fair, as fairness is demanded in Islam,"" the English daily quoted Najib as saying. Responding to this, Kulasegaran said: “Being neither an optimist nor a pessimist, I wait to see the fine print on the proposed amendments to the 1976 law before I can say for sure a stall has been dealt the forces pushing for theocracy in this country.” His client's matter is coming up before the Federal Court Court in November and only time will tell whether the amendment would cover her and whether she would finally be reunited with her long-lost daughter. Meanwhile, another lawyer has taken the stand that the Federal Constitution needs to be amended to ensure that the judiciary would be obeyed in matters related to civil marriages.Gerakan Youth deputy chief Andy Yong said prior to 1988, the courts derived their powers from Article 121 of the Constitution but after it was amended in 1988, they derived their powers from Parliament instead.""In addition to the amendment of the LRA, I think it is also necessary to amend Article 121(1A) as one may still argue that the supreme law takes precedent over the LRA. Otherwise, it may lead to another controversial legal dispute after the proposed LRA amendment,"" he said in a statement today.The amendment to Article 121(1A) in 1988 also expanded the powers and jurisdiction of syariah courts beyond the limits permitted by the constitution, he said.Since then, the Gerakan lawyer said the syariah courts could give orders against non-Muslims, such as to dissolve civil marriages registered under civil law when one spouse converted to Islam or when he or she converted infant children to Islam without the knowledge of the non-Muslim parent.If the government were to amend that article again today, then it would reflect a true separation of powers, Yong said, with Parliament, the executive and the judiciary each having their distinct and largely exclusive domain.""Parliament has a legally unchallengeable right to make whatever laws it thinks is right. The executive carries on with the administration of the country in accordance with the powers conferred on it by law.""The courts, with a clear jurisdiction, can then interpret the laws and see that they are obeyed, such as only civil court can decide matters relating to civil marriages,"" Yong added.Lawyer Joshua Kevin pointed out that having civil courts to mediate in such matters may not necessarily end with judges favouring the non-Muslim partner.""Civil court judges are mostly Malays whose Muslim faith requires them to spread the message of Islam and gain more followers. Surely there will be instances of biased decisions.""He felt that this would not bar the unilateral conversion of minor kids especially in cases where the Muslim convert party got custody of the children as that parent would definitely want to convert them.Pic Credit: MMO"
"MACC Goes After 30 More DBKL Officers PETALING JAYA: KUALA Lumpur City Hall seems to be under siege, what with Malaysian Anti-Corruption Commission (MACC) going in and out of the council in recent weeks, casting its nets for corrupt officers.As of today, New Straits Times reported that the anti-graft agency would be hauling up 30 more officers for questioning. There would be a lot of nervous officers wondering if they are the ones who would be grilled. This followed soon after a Malay daily revealed that a very senior officer with the title of ""Datuk Seri"" allegedly owned 31 condominium units worth more than RM15.5 million. He had since been arrested and remanded.NST reported that corrupt practices could be occurring at an “unprecedented” scale at the council as the 30 officers are believed to have been working hand in hand with their superior in getting kickbacks from developers. Obviously, they were all playing the game of ""follow the leader"" -- in this instance, do what the boss is doing.The agency's investigation director Datuk Azam Baki said officers of various ranks were believed to have been milking housing developers forced to deal with DBKL for various approvals to get free condominium units, which were later sold at higher prices. “Our investigations revealed that no less than 30 City Hall officers obtained condominium units through corrupt ways without making any advance payments. Yesterday, he told NST that the Datuk Seri, who was supposed to monitor his “downline” officers, was the main cause of the widespread misconduct. He revealed that some of the were bold enough to contact housing developers to ask for similar deals as their boss had struck, despite not having any working connection with them at all. “Some of them didn’t even deal directly with these developers, but when they know their bosses is getting something, they, too, want their share. “It happened because their high-ranking officer was part of the network.” Azam said developers who had entered into deals with the officers would also face the music. “We will investigate these developers. We are now identifying the involvement of each and every party in this misconduct,” he said, adding that there were at least three developers involved in the scam. Azam said MACC hoped to work with the council to plug loopholes in their standard operating procedure (SOP). “Part of our investigation is to look into the real issue, that is how these people managed to get such deals. “We welcome the mayor’s (Datuk Seri Mhd Amin Nordin Abd Aziz) willingness to cooperate with MACC to look into City Hall’s SOP and the departments’ integrity.” The mayor has reportedly declined to comment when asked on the possibility that more officers would be arrested by the MACC. “I don’t want to comment. This whole mess has affected the morale of our staff.” The question that people should be asking is whether such corrupt practices are confined to only DBKL. What about other government agencies and local councils nationwide? MACC should be casting their nets further.As a first step, everyone who is a civil servant, including politicians and their family members must declare their assets. No excuses should be entertained."
"What You Agree To When You Play Pokémon Go Donovan & Ho explains the legal issues that could arise from playing Pokemon GoUpdated: Pokemon Go is now live in Malaysia effective 7 August 2016. The rest of this article is current as of the date of posting.Pokémon Go is the most downloaded mobile game in US history. Although it’s not available in Malaysia yet, this hasn’t stopped it from dominating our social media sphere. It’s not all fun and games though; in the short period of time since its launch, Pokémon Go has been linked to robberies, trespass, and numerous privacy concerns.Here are some of the legal issues that could arise from chasing Pokémon (if they eventually turn up here):LiabilityFall off a cliff while chasing Charizard? Your legal remedies may be limited. Players are required to accept and agree to the Terms of Service before playing the game. Most players will not even read this lengthy document, much less understand it. However, under the Terms of Service, the developer is not liable for any damage, injury or death that may occur during the use of the game. The Terms of Service require players to agree that playing the game is at their own risk, and that they are required to be aware of their surroundings, play safely, and comply with all laws. DisputesEven if you do have an actionable claim against the developer, the Terms of Service will force players to settle their dispute through arbitration instead of the court process. While arbitration has its advantages, as a dispute resolution mechanism it is generally unfavourable to individual consumers due to issues like costs. The Terms of Service also require players to waive their rights to a class action, which would normally be an effective way of litigating a mass breach by the developer involving multiple players (for example, say a leak of personal information).Under the Terms of Service, players can “opt out” of arbitration within 30 days from signing up, failing which they will be deemed to have “knowingly and intentionally” waived their right to litigate any dispute through the court process. Players can opt-out by sending an e-mail to termsofservice@nianticlabs.com within the time frame. IndemnityWhile the developer disclaims all liability arising from the use of Pokémon Go, players are required to indemnify the developer and “their respective officers, directors, employees, and agents” (that’s a lot of people!) for various costs and expenses including “reasonable legal fees and accounting fees” that arise from the player’s use or access to the game. This indemnity is far reaching since just logging on to Pokémon Go is a “use or access” to the game that would trigger the indemnity. Why players would have to indemnify the developer and their entire team for “legal fees and accounting fees” for the game remains a mystery.TrespassSpotted Pikachu in your neighbour’s garden? Common sense dictates that you are not allowed to climb over their gate without their permission. In Malaysia, trespass may be a criminal offence if it’s done with the intention to intimidate, insult or even “annoy” the owner of the property. Trespass is also a civil wrong which allows the property owner or lawful occupier to sue you for damages. In trespass cases, stupidity has yet to be accepted as a valid defence under Malaysian law, so “catching Pokémon” is not a justifiable reason for trespass.Personal DataPokémon Go’s privacy policy considers your personally identifiable information as a “business asset”. In the event of a merger, acquisition, asset sale or even bankruptcy, your personal data may be disclosed to third parties in connection with that transaction. In such a situation, players would only have a 30 day period to refuse disclosure.DONOVAN & HO (info@dnh.com.my)18 July 2016"
"​Demystifying The ‘Belittled’ Second Generation Of Human Rights Three 'generations' of human rightsDiscussions and debates about human rights usually revolves around sensational issues involving civil and political rights such as freedom of religion, right to fair trial, inhumane & cruel criminal punishments, freedom of expression, freedom of assembly and treatment of prisoners etc. Not many would know that there are many other human rights apart from the aforesaid, and that human rights can actually be classified into three generations namely civil-political, socio-economic, and collective-developmental.The first generation, commonly referred to as civil & political rights (CPRs) are the ones that are frequently, hotly debated. The second generation is economic, social & cultural rights (ESCRs) and the third generation is known as collective rights.Throughout the history of international human rights, the second and third generation rights have always been perceived by many to be less superior in comparison to its first generation counterpart.Several justifications are given for this peculiar trend. For example, it is alleged that social and economic rights are rights that are difficult to be realized, especially in the short term, hence we should only attempt to move towards them only progressively.Another justification given is is that there is a rudimentary dissimilarity between the first and second generation rights whereby the first type of rights requires governments only to abstain from certain activities, hence they are called “negative” rights, while the second entails extensive positive involvement from governments which what made them to be “positive” rights. It is argued that it is not pragmatic to envisage governments to take positive actions, at least in the short term so as to ensure that these rights are available for their people. Without any obligation on the government as the duty bearer of the rights, there can be no right in any meaningful sense of the word. This leads to the believe that second generation rights are unenforceable, hence meaningless in a practical sense.This article however contends that all rights are ultimately indivisible and interlinked with one another and most of the aforesaid myths and misconceptions surrounding the second generation rights are not true. What is Economic, Social and Cultural Rights (ESCR)? Economic, Social and Cultural rights (ESCRs) are rights relating to your workplace, social security, family life, participation in cultural life, and access to housing, food, water, health care and education. ESCR can generally be divided into 7 categories.Firstly, workers’ rights such as your freedom from forced labour, freedom to accept and choose work, your right to fair wages and equal pay for equal work, to leisure and reasonable limitation of working hours, to safe and healthy working conditions, to join and form trade unions, and to strike. Closely linked to the first category is the second one, namely, the right to social security and social protection, which ultimately includes your right not to be denied social security coverage arbitrarily or unreasonably, and the right to equal enjoyment of adequate protection in the event of unemployment, sickness, old age or other lack of livelihood in circumstances beyond one’s control. Thirdly, ESCRs provide you rights in the form of protection of and assistance to the family unit. This would include among other, the rights to marriage by free consent, rights to maternity and paternity protection, and rights to protection of children from economic and social exploitation. Fourthly, the right to education, which includes the right to free and compulsory primary education and the right to available and accessible secondary and higher education, which are progressively to be made free of charge. Right to education also include parents’ to choose schools for their children. Fourthly, cultural rights i.e. your right to participate in cultural life and to share in and benefit from scientific advancement. Rights under this category also even include the protection of authors’ moral and material interests from scientific, literary or artistic production. The fifth category refers to the right to an adequate standard of living, the rights to food and to be free from hunger, to adequate housing, to water and to clothing. In other words, it covers the basic necessities of a human being. Sixth, the right to health, which simulatenously would include the right to access health facilities, goods and services, to healthy occupational and environmental conditions, and protection against epidemic diseases, and rights relevant to sexual and reproductive health. Where Can You Find Economic, Social & Cultural Rights? Generally, ESCR are listed under the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966. Among the examples of ESCRs found in ICESCR are: Right to self-determination (Article 1); Equal rights between men and women (Article 3); Right to work (Article 6); Right to just and favourable conditions of work (Article 7); Right of workers to form and join trade union and bargain collectively (Article 8); Right to social security and social insurance (Article 9); Right to protection and assistance for the family (Article 10); Right to an adequate standard of living (Article 11 (1)) which include the right to adequate food, adequate clothing and adequate housing; Right to freedom from hunger (Article 11 (2)); Right to the highest attainable standard of physical and mental health, including health care (Article 12); Right to education (Article 13) Right to culture and benefit from scientific progress (Article 15). Civil & Political Rights (CPR) vs Economic, Social & Cultural rights (ESCR)Although there is a close connection between CPRs and ESCRs, and that one cannot be enjoyed without the other, the nature and scope of both rights are quite distinct from each other. Firstly, a number of scholars and human rights writers are of the view that CPRs are more ‘negative’ in nature as opposed to ESCRs. In fact, they are more commonly known as ‘Negative Rights’.What does this actually means? It means that the fulfillment of the rights merely requires the Government to ‘negatively’ abstain from activities that would violate them. Just by not interfering with the enjoyment of those rights, and also ensuring that others are also stopped from doing the same, the government is making the rights available for its people. For example, to ensure that everyone has the right to life, a government merely needs to enact a law that prohibits the taking of life of another. With the passing of the law, everyone including the government is prohibited from infringing on anyone’s right to their own life. Just by doing this i.e. abstaining and ensuring others to also abstain, it consequentially provides the right to life to its people. The right becomes available upon the act of abstaining. Similarly, to ensure that everyone has the right to their freedom of expression, the government must simply desist from indulging in any actions that may interfere with the people’s enjoyment of this right. Merely by doing this, the right becomes available for the people. The aforesaid examples illustrate the negative nature of the CPRs. ESCRs on the other hand are usually described as ‘positive rights’. They are rights that would require the Government to do certain forms of positive acts before the rights could be made available to the masses. Mere abstention won’t do it. In fact, the act of abstaining from ‘interfering’ runs could actually be an act of violation! For example, if a government wishes to provide right to education to its people, it will not be sufficient for it to just refrain from doing anything that could interfere with the right. On the contrary, it has to take positive actions by building schools, hiring teachers and formulating a national syllabus. Without all these things, the right to education will not be accessible for the people. Similarly, if the government would like its people to have the right to health, it has to perform some positive actions for the rights to be able to be enjoyed by them such as building sufficient number of clinics, health centres and hospitals, buy medical equipment and medicine, hire doctors and medical staffs etc. The need for positive actions to be done before a right could be fully accessible by the people is the reason why the second generation rights is known to be positive rights’Misconceptions About Economic Social and Cultural Rights As mentioned above, there are a number of misconceptions about ESCR. One of the misconceptions is that Civil and Political Rights (CPRs) are more urgent and must be prioritized in comparison to ESCR. In fact, some human rights scholars are of the view that realization of ESCR can be tackled later, i.e. after CPRs have been firstly fulfilled. There is a fallacy in this argument since the actual truth is that the enjoyment of all human rights is indivisible and interlinked. One cannot exist without the other. For example, if you give someone the right to take part in politic but did not ensure that his right to education is provided, he will not be able to make use of his political right. He will not be able to even understand the value of the political rights that are vested in him! Similarly, if right to education is neglected for the so called more important civil right of freedom of expression, the latter will not be practically available for the intended right holder. It is of hard for individuals who cannot read and write to find work or to exercise their freedom of expression. Both rights come hand in hand and one can never be enjoyed in isolation of the other ones. Another popular myth is that ESCR obliges governments to supply goods and services free of charge to its people. In other words, when people are given their economic, social and cultural rights, such as right to food, water and education etc. governments are required to provide these goods and services for free. This is a wrong understanding of how ESCR works. In ensuring that those rights are available for their people, government merely has the responsibility to ensure that facilities, goods and services required for the enjoyment of ESCR are available at affordable prices. Also, CPRs are said to be ‘Cost Free’ or that it can be realized without significant costs incurred, whereas ESCR on the other hand are ‘Resource Intensive’ and requires major commitment of resources to be realized. This inevitably leads to another misconception about the rights namely, that CPRs are capable of immediate and full realization while ESCR are merely long term aspiration and goals. As a result, CPRs obligations are more capable of being given precise definition, readily justiciable and susceptible to enforcement whereas in contrast, ESCR are more complex and difficult to be dealt with under the rubric of rights. Fundamental misconstructionsThere are two fundamental misconstructions in this line of thinking. Firstly, first generation rights i.e. the civil and political rights are not necessarily, completely negative. A government that intends to guarantee freedom from torture for its people for example will not be able to do it just by ensuring its officials or others to refrain from torturing people! Real and legitimate freedom in this aspect would require an intricate system of checks and controls to be put in place such as policing systems, judicial organization, detention centres and many more. Comparably, if it wishes to procure all the other civil and political rights for its people, there would always be some form of positive actions that need to be performed in addition to merely refraining from doing a negative action. Associate Prof Dr. Shahrul Mizan IsmailFaculty of Law, Universiti Kebangsaan Malaysia (UKM)shahrulmizan@ukm.edu.myPicture credits: lesindignesduquebec"
"Indefinite Liability Of Guarantors For Demand Guarantees In Malaysia Puthan Perumal from Perumal Brothers comments on section 81 of the Contracts Act 1950.Under section 79 of the Contracts Act 1950, the person who gives a guarantee is called a surety. The term surety and the term guarantor, as it is plainly and normally used, essentially carry the same meaning in Malaysia.In Malaysia, the principle of co-extensive liability of a surety with that of the principal debtor is embodied in Section 81 of the Contracts Act 1950. The principle essentially recognizes the position that the liability of a surety is dependent on the existence of the liability on the part of the principal debtor as a pre-requisite. If there is none, for whatever reason, then the surety is released from his obligations as a guarantor. Again, not to be confused. On the face of it, this principle of co-extensiveness seems to be applicable in cases involving guarantees apart from demand guarantees. Demand guarantees, however, have been treated in a different manner so as not to attract the operation of the co-extensive principle as enshrined in Section 81 of the Contracts Act 1950. The position in Malaysia is that the cause of action, against a person who stood as a surety in a demand guarantee situation, only accrues when a demand for repayment is made to the surety. What this implies is that a creditor can take all the time in the world to make a demand thus making the liability of the surety indefinite as he or she will never be sure when he or she will be called to make repayment, and the existence or rather the non-existence of the principal debtor’s liability plays no part whatsoever. The danger with this concept of indefinite liability is that it seems to convert the nature of a guarantee, albeit a demand guarantee, into one of an indemnity, thus depriving the surety of the defence of limitation.The main focus of this article is to examine the application of the principle of co-extensive liability in other jurisdictions, particularly the jurisdictions of India, Canada and Australia, in comparison with the position in Malaysia, as well as the recognition of this principle in the United Kingdom.It is the author’s view that the Limitation Act 1953 should be amended, in all fairness, to state that in cases involving recovery of monies from a guarantor in a demand guarantee situation, the cause of action against that guarantor shall only accrue when a demand is made to the guarantor for a debt which is legally due and recoverable from the principal borrower in the first place. If a demand is made to the guarantor when there is no debt legally due and recoverable from the principal debtor, then that should be the end of that matter and that demand cannot be valid to be enforced further.It is hoped that the position in Malaysia as regard “indefinite liability’ would in time be cleared up by our apex court, or the legislature, so as not to leave guarantors in Malaysia hanging in mid-air without any certainty as to their liability. Hypothetical backgroundBank X makes advances by way of an overdraft facility to Borrower Y sometime in 01.07.1993 in the sum of RM100,00.00. A contract of guarantee dated 01.07.1993 was signed by the Surety Z undertaking to pay on demand by the Bank X from the date of Borrower Y’s default.The only activity or transaction in the account was the drawdown which took place on 01.07.1993 and thereafter the account becomes dormant.Bank X fails take any action to recover against Borrower Y and so on 01.07.1999, whatever debt by Borrower Y to Bank X becomes time-barred pursuant to Section 6 (1) of the Malaysian Limitation Act 1953.It is settled law that a bank cannot recover a dormant overdraft after the period of limitation from the last advance had expired (Malaysian Federal Court case of Sim Siok Eng v Kong Ming Bank Berhad (1980) 2 MLJ 21).Bank X makes a demand on Surety Z for the first time on 01.12.2001, some two years and five months after the principal debt was time-barred vis-a- vis Borrower Y.Bank X subsequently commences a civil action on 01.02.2002 to recover the sum of RM100,000.00 advanced back in 01.07.1993. The issueWhether, under a guarantee which requires a demand as a condition precedent for the liability of a surety, such a demand could be made for the first time when the debt had become time-barred against the principle debtor/borrower?The law1. Section 81 of the Malaysian Contracts Act 1950 states that the liability of a surety is co-extensive with that of the principle debtor, unless it is otherwise provided by the contract.2. What this means is that the liability of a surety is no less or no more than that of the principal debtor. When Bank X seeks to enforce the debt against Surety Y, the surety is entitled to ask: Is Borrower X liable in the first place? If not, Surety Y has committed no default and Bank X cannot compel Surety Y to discharge an obligation that has no existence. -- Malaysian High Court case of Government of Malaysia v Gurcharan Singh & Ors (1971) 1 MLJ.3. When a demand is made by the Bank X on Surety Y as guarantor, under a guarantee which requires a demand, as a condition precedent for the liability of Surety Y, such demand should be for payment of a sum which is legally due and recoverable from the Borrower X. If the debt had already become time-barred against Borrower X, the question of the Bank X demanding payment thereafter, for the first time, against Surety Y, as guarantor would not arise as the claim is not a ‘live’ claim.– Indian Supreme Court case of Syndicate Bank v Channaveerappa Beleri & Ors (2006) 11 SCC4. A guarantee is generally a contract between a guarantor and a lender. The subject of the guarantee is a debt owed to the lender. In the contract of guarantee, the guarantor agrees to repay the lender if the debtor defaults. The exact nature of the obligation owed by the guarantor to the lender depends on the construction of the contract of guarantee, but the liability of the guarantor is usually made coterminous with that of the principal debtor. Generally speaking, if the principal debt is void or unenforceable, the contract of guarantee will likewise be void or unenforceable. Contracts of guarantee are sometimes distinguished from contracts of indemnity. In a contract of indemnity, the indemnifier assumes a primary obligation to repay the debt, and is liable regardless of the liability of the principal debtor. The distinction between contracts of guarantee and of indemnity ought not to be overemphasised. Applying the principle of co-extensiveness, the limitation period on the guarantee lapses when the limitation period lapses on the principal obligations.–Canadian Supreme Court case of Communities Economic Development Fund v Canadian Pickles Corp (1991) 3 S.C.R. 388 (S.C.C.)5. It results from the definition of a surety’s engagement, as being accessory to a principal obligation, that the extinction of the principal obligation necessarily induces that of the surety, it being of the nature of an accessory obligation, that it cannot exist without its principal. Therefore, wherever the principal is discharged, in whatever manner it may be, the surety is discharged likewise. For the essence of the obligation being, that the surety is only obliged on behalf of a principal debtor, he therefore is no longer obliged, when there is no longer any principal debtor for whom he is obliged. –Australian High Court case of McDonald & Anor v Dennys Lascelles Ltd (1933)48 C.L.R 4576. There are, however, authorities that have departed from this approach and the pronouncements therein imply or suggest that in cases involving demand guarantee, the liability of the surety is indefinite.7. In the English Court of Appeal case of Bradford Old Bank Limited v Sutcliffe (1918)2 KB 833, it was held that there was no cause of action against the guarantor till after demand and the plea of the Statute of Limitations failed in that case.8. In the Malaysian Federal Court case of Wee Kee Puan v OCBC Ltd (1982) 1 MLJ 64 it was similarly held, and applying the principle in the Bradford case, that the cause of action against a person who stood as a surety for an overdraft facility only accrues when a demand for repayment is made to the surety.9 . The cases of Bradford and Wee Kee Puan seem to propound the concept of indefinite liability whereas the apex courts in other jurisdictions, such as India, Canada and Australia subscribe to the principle of co-extensiveness. However, in all fairness, the courts in the two abovementioned cases were not called to answer the question of what happens if the demand was made after the principal debt becomes time-barred.Coming back to our hypothetical bankers and borrowers and surety, if the debt by Borrower Y to Banker X had become time-barred on 01.07.1999, applying the strict principle of co-extensiveness, likewise the demand made by Bank X on 01.12.2001 for the first time on Surety Z should not be valid or enforceable.In an October 2009 lecture entitled “ON THE HOOK? RELEASE OF THE SURETY” by Timothy Fancourt, QC of Falcon Chambers in London (Vice-Chairman of the Chancery Bar Association ), a very interesting point was mentioned by this learned author:“The first issue in any case where a claim is to be made against a “surety” is therefore to decide what the surety covenants mean, and to identify the nature of the claim that is to be brought against the surety. Rather like the distinction between a licence and a tenancy, the difference between a guarantee on the one hand and a primary obligation or indemnity on the other is one of substance and not mere language. If the substance of the contract recognizes that there is another person who is primarily liable to the creditor, and that the surety’s liability is dependent on default by that person, the contract is in substance one of guarantee, even if the phrase “as a principal debtor” appears in it. Similarly, any so-called indemnity or on-demand liability that gives rise to a claim that is co-extensive with and dependent on the liability of the defaulting principal is likely to be a guarantee in substance.”In the English Court of Appeal case of Stadium Finance Co v Helm (1965) 109 SJ 471, Lord Denning M.R. laid down the test to be applied in making the distinction between an indemnity and a guarantee and applied the principle of co-extensiveness in making that distinction:“The test was whether, as between two people, one of the two was under a primary liability to perform the obligation, while the other’s obligation was secondary only. If so, it was a contract of guarantee and not of indemnity. One always looked to see if there was a primary and secondary obligation, or two primary obligations. Clause (1) of this document was a contract of guarantee, It was something which the customer ought to pay and had not paid…the whole burden of this document was that it was a guarantee, to come into force if the principal debtor defaulted and to the extent of his default.. This being a guarantee as a whole, it was not enforceable against the guarantor, and the principle debtor was not liable because he was an infant.” Conclusion1. Although it can be argued that a demand guarantee situation is allowed in Malaysia in light of the wordings in section 81 of the Contracts Act 1950 “unless it is otherwise provided by the contract”, it is also arguable that in allowing such a demand guarantee situation to become an exception to section 81 of the Contracts Act 1950 or to the law of surety in the country, the Malaysian courts seem to have deviated from the basic principle of ‘co-extensive liability” underlying the law of surety.2. In this regard, until there is a decision from the apex Court of Malaysia clarifying this position or even possibly an amendment to the Limitation Act 1953, the law in Malaysia appears to be that there is indefinite liability in a demand guarantee situation even if the liability of the principal borrower is no more in existence.3. On this note, perhaps, it would be wise, in terms of social responsibility, that if financial institutions wished to overcome the principle of co-extensive liability to impose a primary obligation on its surety, such a clause should be made clear to the potential sureties, bearing in mind that most people/sureties do not intend to assume or subject themselves to principal obligations or assume the responsibility of being liable indefinitely. If this is not made clear, essentially, it would go against all trite principles of contract law if the courts were to allow, unilaterally, a change in the intention of parties and ‘convert’ a guarantee into an indemnity.Puthan Perumal (perumalbrothers@gmail.com) is an Advocate & Solicitor of the High Court of Malaya.Picture credits: cgblogassets"
"TRUE ABUSE STORIES:  'I Never Understood What My Teacher Did To Me In That Classroom' My personal nightmareI want share my own personal experience that I have kept to myself for almost 26 years. No one knows about this. Not even my parents or my own wife. I was only eight It happened when I was 8 years old. I was a member of the school computer club. There was a teacher called Cikgu Ali (not his real name). Cikgu Ali was very close with the pupils. He was one of our most favourite teacher as he was friendly towards his pupils. I was at computer classOne day, I went for computer class. I was the only one in the classroom since I came a bit early. The others haven't arrived yet. I was wearing my track pants.Cikgu Ali was there. He asked me to sit on his lap. I did that while I typed on the computer keyboard. As an 8 year old boy, I never dared to refuse what he asked me to do because at that time I thought that I must follow a teacher's instruction.So, I obeyed..I didn't fight back His hands crawled all over my body. He inserted his hands into my pants and groped my private parts.I didn't dare to fight back because he was the teacher. I thought that whatever a teacher did to me was right and I had to obey.I kept quiet and cried.I was lucky because my friends have arrived into the classroom. He then let me go.I never told my parentsI went home straight away and cried. I was afraid to tell mum and dad. I didn't want them to scold me. I just kept it quiet.I stopped attending computer class. I give the excuse that I have lost interest in the lessons. I was lucky that my dad let me quit.I wasn't the only victimEver since that incident I found out that I wasn't the only one that he preyed on. Several other pupils have also fallen victim to him.He was found out after a friend complained to his mum about Cikgu Ali.But, I was sad because his parents didn't do anything. Their excuse was that they didn't believe him and that he was only making this up.By the time I reached Primary 6, The number of Cikgu Ali's victim have increased. A group of us, who used to be his victim, wanted to report him to the headmaster.Before we could even do so, Cikgu Ali threatened us. We were still afraid of the teacher, so we ended up not going to the headmaster.I could only cryI never understood what my teacher did to me in that classroom.In the end, I could only cry because I was afraid and ashamed.Look out for your childrenTo all the parents out there, please pay attention to what's happening in school. Ask your children of what's going on in their daily school life. Get to know their teachers well.Educate your children on which part of the body is off limits and and on who should or should not touch it. Children must be aware of this to avoid being victims without them even realising it.COMMUNITY MESSAGE:If you suspect a child is being abused, or if you need help and have questions about child abuse, please contact: Social Welfare Department hotline: 1-800-88-3040WAO Helpline : 03 7956 3488 WCC: 04-228 0342For more information on child sexual abuse, visit: #StopNurseryCrimes Source: Syed Azmi FacebookPicture credits: WorldVision"
"‘Preserving’ And ‘Restoring’ Fertility For Women: Should We Be Worried? Advances in assisted reproductive technologyAssisted reproductive technology is advancing rapidly across the world with the invention of various new technologies that can help promote fertility. Now, not only that these technologies help to achieve pregnancy, they also offer hope and ways to ‘preserve fertility’ for pre-menopausal women and ‘restore’ fertility for post-menopausal women. Methods of postponing pregnancySeveral methods are available to help women wishing to postpone pregnancy for various grounds, particularly on health reason, through ovarian and egg cryopreservation. While freezing eggs from adult women is common, its use on pre-pubertal girls is still in its infancy. Extracting eggs from pre-pubertal girls In 2016, it was reported that a group of doctors in London and Copenhagen had fertilised embryos in vitro using frozen eggs extracted from a cancer patient when she was eight years old. More recently, in July 2016, in a study conducted by doctors in the United Kingdom, eggs were extracted from a two-year old girl suffering from cancer and cryopreserved for use later in her life. Several issues arise from this method: Should this procedure be recommended for all young cancer patients? What would be the implications or the risks of this procedure for these young girls? Who should make this important decision? Should parents be put in a position to decide on their child’s fertility prospect when at the same time, they are burdened with more crucial decisions to make concerning their child’s life? These concerns, however, need to be balanced with the prospect of preventing childlessness for young girls which could be devastating on them in future. Assisting post-menopausal womenIn addition to preserving fertility for young women, new researches are being attempted to assist post-menopausal women to reproduce using their own eggs. In another recent development, scientists in Greece claimed that they can ‘rejuvenate’ the ovaries of post-menopausal women to stimulate them into producing fertile eggs through the injection of platelet-rich plasma (PRP) collected from the women’s blood. PRP, which is known to generate the healing of damaged bones and increase blood vessel formation, was injected to the ovaries of 30 menopausal women in Greece. Researchers claimed that they have succeeded in extracting eggs from these women and fertilised them with sperm but the resulting embryos have yet to be implanted into the woman’s uterus. Dr Konstantinos Sfakianoudis, a researcher and gynaecologist from the Greek Fertility Centre Genesis Athens commented that this new breakthrough “...offers a window of hope that menopausal women will be able to get pregnant using their own genetic material.” The need to scrutinise concernsWhile these developments may be applauded for offering hope for women to preserve and restore their fertility, their arrival is not free from concerns that need to be scrutinised before the technique can be offered at large. Although the technique has yet to make its way into Malaysia, discussion on the issues involved is useful as assisted reproductive technology is fast expanding in this country. Hence, awareness and knowledge on issues on Bioethics particularly concerning assisted reproductive technology in Malaysia needs to be enhanced and promoted. Dr. Haniwarda YaakobFaculty of LawUniversiti Kebangsaan MalaysiaEmail: hani_yaakob@yahoo.comPicture credits: bp.blogspot.com"
"Is an Omission Capable of Being Communicated? Puthan Perumal from Perumal Brothers comments on the need for an amendment to section 418(3) of the National Land Code 1965.The purpose of this article is to inform the general public and to show how a very likely injustice can be caused by property and land being taken away, due to an omission on the part of state land authorities in complying with certain provisions of the National Land Code 1965 and how those omissions are, for some strange reason, considered as a ""decision"" under the same Code — a ""decision"" which one never comes to know about until it is too late and the property or land is gone, and the avenue to appeal against that ""decision""’ is no more there. It is a very frightening situation and there are many, many cases of this nature.The classic example would be where a property or land is subjected to a charge for a loan taken from a financial institution, and a default occurs in the repayment of that loan and foreclosure proceedings are commenced. In such situations, the state land authorities are to ensure that all steps are taken to inform the owner of the property or land that actions are being taken to auction the property or land. This is to ensure that the owner is given the opportunity to redeem the property or land. There was a case where a land had been sold for interest in the sum of RM1,928.00 which was owing, which the owner did not know about and was never informed by anyone. Neither did the state land authorities comply with mandatory provisions of the National Land Code 1965 to inform the owner that the land was going to be sold. In such an instance, when the owner comes to know that the land had been sold, the owner runs to court only to be told that their time to appeal is over.The question is this: Against which decision was the time to appeal considered over? Was there a decision in the first place?Essentially, the argument is -- can there ever be a situation where an omission would be capable of being communicated for an aggrieved party to appeal within a particular time frame? And therefore, can an omission be considered a ""decision"" which is capable of being communicated? It goes against the very trite principles of statutory interpretation, and an amendment is necessary as the general public is unaware that actions are being taken against their property and land, and they are instead told by the courts that the time to appeal is over.In this regard, there has since been no decision from the apex courts clarifying this position; therefore an amendment to section 418(3) of the National Land Code 1965, by deleting the word ""omission"" appearing therein, would settle the issue. This would save the general public of unnecessary legal burden.The Law1. Section 418 of the National Land Code 1965 (‘the Code’) provides that:-(1) Any person or body aggrieved by any decision under this Act of the [State Director], the Registrar or any [Land Administrator] may, at any time within the period of three months beginning with the date on which it was communicated to him, appeal therefrom to the Court.(2) Any such appeal shall be made in accordance with the provisions of any written law for the time being in force relating to civil procedure; and the Court shall make such order thereof as it considers just.(3) In this section “decision” includes any act, omission, refusal, direction or order.2. The question here is:-(i) Whether an omission on the part of the State Director or the Registrar or the Land Administrator should be included in sub-section (3) of section 418 of the Code as constituting a “decision” and;(ii) whether the Courts, in accordance with trite principles of statutory interpretation should reject the use of the word ‘omission’ appearing in the abovesaid sub-section (3) as such reliance would result in absurdity.3. In Black’s Law Dictionary 7th Ed, the word ‘omission’ is defined as “failure to do something; esp a neglect of duty” OR “the act of leaving something out” OR “the state of having been left out or of not having been done” OR “something that is left out, left undone or otherwise neglected”.4. Non-compliance, by the State Director or the Registrar or the Land Administrator, of any mandatory statutory requirements appearing in the Code, such as those appearing in section 258(1) or 264(1) of the Code (to name a few), is, for all intent and purposes an omission on the part of the State Director or the Registrar or the Land Administrator.5. The objective or the purpose behind section 418 of the Code is essentially to provide an opportunity or an avenue to an aggrieved party to appeal to the Courts against a decision of the State Director or the Registrar or the Land Administrator within three (3) months beginning from the date on which such a decision is communicated to that aggrieved party by the State Director or the Registrar or the Land Administrator.6. Two obvious and glaring questions one can ask is this:(i) Can there ever be a situation where the State Director or the Registrar or the Land Administrator will be able to communicate a ‘non-compliance of a mandatory statutory requirement’ or an omission on his part to any party?(ii) Will a State Director or a Registrar or a Land Administrator ever communicate a ‘non-compliance of a mandatory statutory requirement’ or an omission on his part to any party?7. In situations involving an ‘act’ or a ‘refusal’ or a ‘direction’ or an ‘order’ by the State Director or the Registrar or the Land Administrator, such questions as stated above would not arise, as there would be some form of active and positive communication of those acts or refusals or directions or orders which affect some party concerned, either by way of prescribed statutory forms or a specified method of communication. In other words, such acts or refusals or directions or orders are capable of being communicated to the party concerned, and therefore the date from which such acts or refusals or directions or orders are communicated is capable of being calculated clearly for the purposes of appeal to the Courts.8. On the other hand, however, an omission or non-compliance of a mandatory statutory requirement can never — or rather, will never — be communicated by the State Director or the Registrar or the Land Administrator to any party concerned, as such an omission is not capable of being communicated and therefore the date from which such an omission is ‘communicated’ is not capable of being calculated clearly for purposes of appeal to the Courts. To put it bluntly, logically speaking, no State Director or Registrar or Land Administrator will communicate that he has NOT DONE SOMETHING which the law requires him to do.9. Clearly, if the word ’omission’ appearing, for whatever reason, in sub-section (3) to section 418 of the Code is not rejected by the Courts, this would result in absurdity and a non-harmonious reading with sub-section (1) of section 418 of the Code. This clearly would frustrate the objective or purpose of the entire section 418 of the Code. Even more so, it would create uncertainty as to the time to appeal to the Courts. Would it be three months from the time the aggrieved person finds out of such a non-compliance or omission on his own accord? No one knows. If that approach is taken, then the word ‘communicated’ would not make sense. Either way, it would result in absurdity.10. Reference is made here to Principles of Statutory Interpretation by Guru Prasanna Singh 9thEd 2004:-“The words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view….The courts have declined ‘to be bound by the letter, when it frustrates the patent purpose of the statute’.“A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results.“If the grammatical construction leads to some absurdity or some repugnance or inconsistency with the rest of the instrument, it may be departed from so as to avoid that absurdity and inconsistency. Similarly, a construction giving rise to anomalies should be avoided. As approved by Venkatarama Aiyar J, ‘where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.“ ‘Absurdity’ according to Willes J, should be understood “in the same sense as repugnance that is to say something which would be so absurd with reference to the other words of the statute as to amount to a repugnance. ‘Absurdity’ said Lord Greene MR like public policy, is a very unruly horse. He proceeded to add, “There is one rule, I think which is clear that, although the absurdity or the non-absurdity of one conclusion as compared with another may be and very often is, of assistance to the court in choosing between two possible meanings of ambiguous words, it is a doctrine which must be applied with great care, remembering that judges may be fallible in this question of an absurdity and in any event must not be applied so as to result in twisting language into a meaning which it cannot bear. It is a doctrine which must not be used to re-write the language in a way different from that in which it was originally framed. The alternative construction contended for must be such which does not put an undue strain on the words used and does not require recasting of the Act or any part of it….In holding so Venkatarama Aiyar J observed: It is no doubt true that if on its true construction, a statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the Legislature to amend and alter the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other not, it is our duty to adopt the latter and not the former, seeking consolation in the thoughts that the law bristles with anomalies.“It has already been seen that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. Such a construction has the merit of avoiding or repugnancy either within a section or between a section and other parts of the statute. It is the duty of the courts to avoid ‘a head on clash’ between two sections of the same Act and ‘whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonise’. It should not be lightly assumed that Parliament had given with one hand what it took away with the other…. The same rule applies in regards to sub-sections of a section. In the words of Gajendragadkar J: The sub-sections must be read as parts of an integral whole and as being interdependent; an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid repugnancy.”11. It is apparent that non-compliance of mandatory statutory requirements or ‘omissions’ on the part of the State Director or the Registrar or the Land Administrator can never possibly be a ‘decision’ contemplated and so defined in sub-section (3) of section 418 of the Code, simply because such omissions are not capable of being communicated to achieve the purpose and objective in sub-section (1) of section 418 of the Code. There being no communication, there can be no calculation of time as well for purposes of appeal to the Courts, as time does not begin to run and is constantly enlarged. This cannot be what Parliament had intended. Therefore, the word ‘omission’ should be rejected.12. In light of the above, the honourable draftsmen should look into deleting the word ‘omission ’ appearing in section 418(3) of the Code, as it appears to be in direct conflict with the word ‘communicated” appearing in section 418(1) of the Code and injustice is being caused.Puthan Perumal (perumalbrothers@gmail.com) is an Advocate & Solicitor of the High Court of Malaya.Picture credits:Amazon"
"TRUE ABUSE STORIES: 'We Were Sending Our Son To The Depths Of Hell' My son’s storyRecently, there was a shocking news of a child abuse case in a Maahad Tahfiz (religious school) up north. I would like to share what happened to my son recently this year and I hope by sharing this parents will choose wisely where they plan to send their children, should they want them to pursue religious studies. Sending our son to the ‘depths of hell’ My son is 10 years old and he is talented in memorizing short surahs (chapters) from the Quran. So, we thought he would be the perfect candidate for the upcoming interview in one of the most popular Maahad Tahfiz.We decided to register him in this Maahad since the entrance was highly sought after, with the selection being made through a series of tests.We were beaming with pride when he became one of the selected few from a batch of 4,000 candidates. It was a dream came true to have our son in one of Malaysia’s most prestigious Maahads. Little did we know we were sending our son to the depths of hell.Things were doing well Initially, my son’s batch of thirty 10-year-old students were sent to a rural area to isolate them from the influences of city life. Things were running quite well at this place and we were more than satisfied with his academic performance and his memorization of the Al-Quran.Then, one day this Maahad had some management issues, sold off the rural branch and transferred all the 10 year old students to their headquarters, where the older boys (secondary school) were. This was when my son’s physical and mental torture began. My son’s confessions He came home for the school holidays in May. We saw bruises on his face and his left cheek was a bit swollen. He told us he had a fight with a school mate but did not tell us what it was about.Then one night he laid down next to me and started asking questions like ""Is it okay for people to make our penises hard?"" and ""Why does it gets hard when someone kisses you?""I thought it was awkward for him to ask such questions. So I did some interrogation. His confessions almost caused me to faint.What happened in school The seniors, especially an orphan who was the permanent resident of the Maahad, were always sexually taunting the juniors.During one incident, the seniors would victimise the juniors by holding one boy down by the hands and legs, and forced another boy to hold the victim’s penis and jerk it until it becomes stiff. Then, they would tell the victim to place his penis between another junior's buttocks. The seniors would laugh at this poor child.The senior also bullied the junior boys by forcing them to french-kiss each other and watched as these children’s penises became hard. My 10 year old son knew that what took place was morally wrong. But, at the same time he was curious because he never knew how an erection could occur.He informed the warden and a reshuffle of the dormitory students' sleeping arrangement was soon made. Unfortunately, the senior boys involved found out that he had made the report. My son was physically attacked and verbally assaulted with degrading remarks. My son retaliated by fighting back and he received bruises on his body. I alerted the other mothers I asked my son for the names of the junior boys who were also sexually molested and alerted their mothers through WhatsApp. The mothers were shocked and interrogated their sons and finally got them to confess the things that they have to endure since the transfer took place.Towards the end of the school holidays, three parents decided to withdraw their sons from the Maahad.One parent made a police report. However, a medical report cited that there was no anal penetration.My son, who was traumatised by the incident, refused to continue in this school and we withdrew him from this Mahaad. Meeting with the school principalI wanted to make a report myself but my husband, being a fan of this famous Ustaz (religious teacher) who was the head of the Maahad, decided to make an appoinment with him. So we contacted the Ustaz’s personal assistant. He asked us what it was about. When we mentioned to him about the issue, he told us off and said, “If you made a police report, let the police do their work.” So I told him we haven't done so, but we would if we didn’t get an appointment with the principal. He then gave us a date. We went to see the principal with our son.The first thing the principal asked our boy was whether he understood the allegations and the meaning of ‘liwat’ (sodomy).My son answered by saying that sodomy meant putting the penis between the flesh of the buttocks. The principal asked my son to clarify what he saw and my son replied with the same story he that shared with me.""Attempted rape is not the same as rape""This extremely religious principal then turned to us and said, ""Madam, that is called an attempted ‘liwat’ and not ‘liwat’ itself.”He also stated that, “Attempted rape is not the same as rape.”He continued on by saying, “If you take this claim to court, you will lose. We have made investigations and we have interrogated the boys involved.”“None of the victims said there was any penetration and that the seniors were only joking with them. If you make false accusations this means you have slandered us and we can hit you back. We also have claims that your son was being disobedient and started to become a nuisance to the teachers here.“We are still keeping him here to study with his plunging academic results, but you have decided to take him out. That is your choice. I suggest you take him to the doctor to get himself checked, and make a police report if you like. As I said, we have backups so you better be careful of what you plan to do.”No action against the offenderI was like, “Hey, my son was sitting there in the same room, a victim of this bullying and the school decided to protect the offender, the reputation of this institution and blackmail the victim instead?” I asked about the action that has been taken against the senior student masterminding this sexual assault. They said no one made a statement against him. He claimed that he was only telling stories and it didn’t involve anything physical. The fact that he is the resident orphan of the school means that he is privileged due to state money being channeled to the school in the name of the orphanage charity. They could not expel him. Where is the justice?We left the school after 75 minutes of discussion. We are currently consulting our lawyer and the police, but we have no concrete evidence to show that these events actually took place. All we have now is our son who's traumatized and confused after being sexually assaulted. The other 5 victims have left the school.We have to do our own damage control while the perpetrators still roam free in this so-called prestigious institution, led by this famous Ustaz who denied our son’s right to justice. My greatest regretSince then we have found out that this Maahad is not only a Quran learning center but also a rehabilitation place for troubled and spoiled kids.Sending my son to this miserable hell hole is my greatest regret. As a mother I am angry and am literally burning with fury.I am angry because my son will be forever traumatised by the evil that was done to him by these devils in white robes and 'serbans'. Parents need to knowI am not saying that all Maahads are the pits of hell. However many parents out there need to know what is going on.I’m writing to warn you not to sacrifice your innocent children in the name of religion since the Holy Quran is true. However, the 'devils' that claim to practise and teach it are wrong.COMMUNITY MESSAGE:If you suspect a child is being abused, or if you need help and have questions about child abuse, please contact: Social Welfare Department hotline: 1-800-88-3040WAO Helpline : 03 7956 3488 WCC: 04-228 0342For more information on child sexual abuse, visit: #StopNurseryCrimes Source: Syed Azmi FacebookPicture credits: ComptonHerald"
"COMPANY LAW SEMINAR:  7 Major Areas Of Change In The New Companies Act COMPANY LAW SEMINAR: 7 Major Areas Of Change In The New Companies Act The Companies Bill 2015, which was recently passed by Parliament on 28 April 2016, brings about major changes to the existing corporate landscape in Malaysia, as it replaces the old Companies Act 1965. The new Act effectively modernizes the Malaysian corporate legal setup in line with the current international standards.The new Act changes various aspects of the Company Law in Malaysia, particularly seven major areas: among others, duties and responsibilities of Company Directors and Company Secretaries; the way companies are incorporated and managed; and the concept of corporate rescue mechanisms in Malaysia.As such, it is essential and necessary for all stakeholders to gain an understanding on the various aspects of the new reforms and changes under the new Companies Act, in particular those involving Company Directors, Company Secretaries and Corporate Insolvency.WHO SHOULD ATTEND Lawyers Company Directors and Partners CEOs, CFOs, COOs Finance Managers and Financial Controllers Company Secretaries Corporate Counsel and Corporate Advisory Professionals Professionals responsible for implementing best practice corporate governance in their organisations Date: 16 & 17 August 2016Venue: Concorde Hotel, Kuala LumpurRegistration fees: Early Bird | RM1700 (ends 10 August 2016) Normal Price | RM1850 (after 10 August 2016) 10 CPD POINTS: Bar Council Malaysia For further information, visit this link Click here to download the application formPicture credits: LegalPlus"
"Your Children's Rights Under CRC The rights under CRC The rights in the Convention on the Rights of the Child (CRC), set out in 54 articles, can be classified into 4 different groups. 1. Survival rights This covers the right to life and the right to the highest standard of health and medical care attainable. This also include the right to adequate food, shelter, clean water and primary health care.Survival rights and development rights not only require the existence of the means to fulfill the rights but also the means to provide access to these rights.2. Development rights These rights include all forms of education, both formal and informal, the right to a standard of living which is adequate for the child’s physical, mental, spiritual, moral and social development such as leisure, recreation and cultural activitiesDevelopment rights addresses the needs of child refugees, children with disabilities and children of minority and indigenous groups. 3. Protection rights These rights cover protection from discrimination, from abuse and neglect, protection for children without families and protection for refugee children including right to special protection in times of war and protection from abuse in the criminal justice system.4. Participation rights These rights cover the right of a child to express her/his views in all matters affecting the child in keeping with his or her evolving capacities, the right to information and freedom of association, provided with direction and guidance.Getting children involved in these rights, as they mature, will help them understand about the realization of all their rights.Why are these rights important?These categories are not mutually exclusive and some rights may fit into more than one category. These rights are important because we need to teach children of their rights as well as their responsibility towards their rights, according to their age and maturity. Picture credits: TogetherWeCare4Kids, Asiaone, World Harmony Run, LiveSmartAsia"
"TRUE ABUSE STORIES:  I Hate Him So Much, But I Hate Myself Even More From a broken familyI came from a broken family. My parents divorced when I was 7 years old and I'm the youngest child. I always missed my dad after the separation as we were really close. The kind school teacherThen I met this teacher when I was in primary school, at 11 years old. He cared for me, gave me extra attention and bought me gifts. I always stayed back at school so I could talk to him. There was no one at my home as my older siblings were in boarding school and my mum was working from dawn till midnight to support us. BetrayalOne day, the teacher started to hold my hand, hugged me and even put his hand inside my school uniform. I was clueless and I didn't stop him. This continued for several months, and I started to like it. One day, he took me for a drive and then checked us into a motel. He wanted 'that'. I tried to stop him, but he insisted. It was painful. Only then I realised that this was wrong. Things will never be the same againI started to avoid him, I became quiet, I got angry easily and I blamed everyone. But I never said a word. I really hate my childhood and I don't want to remember anything in the past, but I hate myself even more.Now, almost 20 years have passed. I became worse. I thirst for lust, I seek for sex, and I always want that. It ruined meIt ruined me. I blame him for all of these. I hate him so much but I hate myself even more.I don't know who's to blame. But, I need to build my inner strength first in order for me to fix myself.COMMUNITY MESSAGE:If you suspect a child is being abused, or if you need help and have questions about child abuse, please contact: Social Welfare Department hotline: 1-800-88-3040WAO Helpline : 03 7956 3488 WCC: 04-228 0342For more information on child sexual abuse, visit: #StopNurseryCrimes Source: Syed Azmi FacebookPicture credits: Fanpop"
"Malaysia's Abortion Laws: The Woman Who Was Charged, Jailed, And Acquitted First woman in Malaysia jailed for abortionThis is the second part of Malaysia's abortion laws where we will look into the story of a Nepali woman, Nirmala Thapa, who became the first woman in the country to be sentenced to jail for abortion. Nirmala's storyIn October 2014, authorities raided a health clinic in Bukit Mertajam, Penang and arrested Nirmala Thapa, then 24, for obtaining an abortion. Nirmala came to Malaysia with her Nepali husband, who works as a security guard. She opted for an elective abortion due to personal circumstances. According to the Center for Reproductive Rights, Nirmala, who was six months into her pregnancy, decided to terminate her pregnancy as she feared losing her job. Authorities arrested Nirmala and the doctor who performed the procedure during a raid on October 9, 2014. She was then brought before the court to face a charge under Section 315 of the Penal Code for committing an act done with intent to prevent a child being born alive. The section provides up to 10 years imprisonment or fine or both, if convicted. Nirmala was convicted and sentenced to a year's imprisonment. Following an appeal before the Penang High Court, the conviction was overturned and the case was sent back to the lower courts.Nirmala was charged again in January last year and, after eight months of enduring the court proceedings, the Sessions Court acquitted her as the prosecution had failed to prove a prima facie case against her. Criminalising women for abortion?Nirmala's arrest and conviction garnered plenty of attention as authorities rarely enforce abortion laws in the country. The Center for Reproductive Rights quoted a Malaysia expert who said that the laws have not been enforced in 25 years. Following Nirmala's acquittal, Joint Action Group of Gender Equality (JAG) in Malaysia demanded the Health Ministry to relook the abortion laws, as it should not be used to criminalise women who opt for the procedure. Imagine the trauma of rape victims when they discovered that they got pregnant from the horrific sexual violence. Adding insult to injury, the victims who have undergone elective abortion will be brought before the court to be prosecuted because it is an offence to terminate the unwanted pregnancy. More than a year has passed and the relevant ministries have done little or nothing to discuss on women's reproductive rights. The Government should take steps to discuss the existing abortion policies practiced in Malaysia, as no woman should experience cruel or degrading treatment because they opt for abortion. Pic credit: IrishTimes, The Star Online"
"Stopping 'Nursery Crimes' The Nursery Crimes campaignProtect and Save the Children (PSC), in collaboration with Naga DDB, launched The “Nursery Crimes” campaign on July 21. This campaign aims to create awareness amongst Malaysian on the dangers of child sexual abuseThe campaign aims to break the 'shame culture' that has prevented many from speaking out about this taboo subject and to encourage parents to listen to their children's voices.The ‘Nursery Crimes’ campaign, which took 2 years to complete, began when Naga DDB’s Executive Creative Director, Alvin Teoh, approached PSC with the idea of producing awareness videos (available in English, Malay and Chinese) on child sexual abuse.AskLegal contacted PSC to know more about the organisation’s work and the challenges that they faced in creating awareness on child sexual abuse. 1. What are the long-term results that PSC hope to see from the 'Nursery Crimes' campaign?We hope parents will be more interested in wanting to know or learn about preventing child sexual abuse. Hopefully there will be an increase in reporting child abuse incidents. 2. What are the major stumbling blocks you face in creating awareness on child protection to the general public?A. We want to reach out to parts of the community who are not educated on child sexual abuse. This seems to be an issue. The people who reach out to us are those who already know what child sexual abuse is about. B. Recruitment is one of the major factors. How do we educate a child who is already very intelligent? Sometimes the development of the child is more important than the protection of a child.C. We need a criminal justice system that is a lot more effective.3. How do you reach out to members of the public in rural areas (such as in Sabah or Sarawak)?We do outreach work and we have trained some local agencies, such as Sarawak Women for Women Society and Sabah’s Women’s Action-Resource Group. We have also worked with schools, religious organisations in Kuching, Sarawak.4. What can be done to make sure that this campaign is truly nationwide?It would be great for media agencies to offer pro-bono assistance and free spots for advertising. Secondly, fundings from various agencies for human resources are welcome for our training purposes and for us to reach out to educate the public on child sexual abuse prevention.5. What other child protection campaigns that PSC are currently involved in?We are really interested in coming up with strategic programs that are sustainable and we hope to come up with models of best practices that can be duplicated nationwide. At the moment, we are developing a personal safety curriculum for the special needs group. This project will be executed across the span of one year, which includes a curriculum module that can be used nationwide. We will also be training educators for special needs children.6. Is there any more major campaign in the near future?It all depends on the initiatives of the agencies. We welcome any ongoing initiatives from any advertising agency and social media. In the meantime, we are still conducting our two-day workshops that is open to the public. Our next session is on the 30-31st July at F-Secure, Bangsar South from 9am to 5pm @ RM50.00 per person. For more information visit: #StopNurseryCrimes Picture credits: lightingtheirwayhome"
"VIDEO: Nursery Crimes (Chinese Version) 儿童性虐待是一种造成永久性创伤的严重罪行。 Protect & Save the Children 与 Naga DDB 正努力提高人们对此事的警觉以避免孩童承受不必要的痛苦。 欲知更多详情，请点击: #StopNurseryCrimes For the English version of the campaign video, please click here.Tekan sini untuk menonton video di dalam Bahasa Malaysia."
"VIDEO: Nursery Crimes (Bahasa Malaysia Version) Penderaan seksual kanak-kanak merupakan satu jenayah yang begitu keji dan membawa kesan trauma yang berpanjangan terhadap si kecil. Protect and Save the Children, dengan kerjasama Naga DDB, telah meningkatkan usaha untuk menyebarkan kesedaran mengenai langkah yang perlu diambil untuk menghapuskan jenayah ini. Sila layari laman web ini untuk maklumat lanjut: #StopNurseryCrimes Tekan di sini untuk menonton video Bahasa Inggeris.Untuk video Bahasa Mandarin, sila tekan di sini."
"VIDEO: Nursery Crimes (English Version) Child sexual abuse is a horrendous crime with traumatic lasting damage. Protect & Save The Children, together with Naga DDB, are working hard to spread awareness in steps to work to eradicate this unnecessary suffering. For more information visit: #StopNurseryCrimes For the Malay language campaign video, click here.For the Chinese language campaign video, click here."
"Malaysia's Abortion Law And Policies A taboo topicAbortion is a taboo topic and people seldom broach this weighty subject. It is spoken about in hush-hush tones and never discussed in detail.What is abortion? It is the deliberate termination of a human pregnancy. So, if abortion is an intentional act of ending another individual human being's life, isn't it wrong to do so?But what if the pregnancy was a result of rape or incest?In this first part of Malaysia's abortion laws article, we will look into the abortion policy and its legal status under the Penal Code. The Malaysian Penal CodeSections 312 to 316 of the Penal Code deal with matters concerning miscarriages and injuries to unborn children.Section 312: Those who cause a woman with a child to miscarry can be sentenced up to three years imprisonment or fined, or both, if convicted. If the woman is quick with child (defined as around the fourth month of pregnancy), the accused can be sentenced up to seven years imprisonment, and fine. Section 313: Those who cause a woman with a child to miscarry without her consent can serve up to 20 years in jail and is also liable to fine.Exceptions under Penal Code However, there is an exception to the grounds of abortion under section 312. Termination of pregnancy can be carried out if: it involves a risk to the life of the pregnant woman, or injury to the mental or physical health of the pregnant woman. it is carried out by a registered medical practitioner Abortion policy With reference to the Penal Code, abortion is only permitted if it is meant to the save the life of the woman and to preserve her physical and mental health. Termination of pregnancy is still prohibited even: if it was a result of rape or incest, in cases of foetal impairment for other economic or social reasons. In the second part of Malaysia's abortion laws article, we will take a look at a high-profile abortion case in the country where a Nepali woman, Nirmala Thapa, became the first woman in Malaysia to be sent to jail for termination of pregnancy. Pic credit: Malay Mail Online, MTUC"
"Don't Meddle In Malaysia's Affairs, Azalina Warns KUALA LUMPUR: Newly-minted minister in charge of law Datuk Seri Azalina Othman has warned foreign parties not to meddle in Malaysia's affairs.The Pengerang MP issued the warning in a statement today after the Australian Bar Association (ABA) criticised the government's move to amend the Legal Profession Act 1976 (LPA).She reiterated that the proposed amendments, that among others touched on the appointment of two government representatives in the Bar Council to report directly to Putrajaya, did not violate the integrity and independence of lawyers. Azalina said it was not fair for outside parties to meddle and issue statements since the proposed changes were still in the drafting stage. In the same statement, she also dismissed claims that the proposal was aimed at enabling the government to interfere with the Bar Council. “Such a statement is considered premature and an act of disrespect to the country’s legal system."" “Besides that, the issues that the Bar Council previously raised are also baseless because the government does not intend to control them, but instead, the amendments were made in line with Section 42(1)(l) of Act 166, which is: ‘to promote good relations and social intercourse amongst members and between members and other persons concerned in the administration of law and justice in Malaysia’,” she added, according to MMO. Earlier today, the ABA in a statement had urged Putrajaya to review its proposal to amend the LPA citing that it would affect the independence of the Malaysian Bar Council. Apart from ABA, several other quarters had also voiced their concerns over the proposed amendments including the German Federal Bar, the Law Society of England and Wales, and the Law Society of New South Wales, Australia. Yesterday, the Group of 25 (G25) also made similar calls urging the government to reconsider the proposal as the group said it would create negative perceptions among foreign investors about the integrity and independence of the Malaysian legal system.Pic credit: alchetron.com"
"Naga DDB Leading The Way In Anti-Paedophile Campaign Naga DDB child protection campaign initiativeCreative agency Naga DDB, with other industry partners, is leading the child protection cause within the ad industry, by working together with Protect and Save the Children (PSC), a child protection advocacy NGO on an anti-paedophile campaign.This campaign, which took around 2 years to complete, is aimed to create awareness amongst Malaysians on the dangers of paedophiles. ""Nursery Crimes"" The project, “Nursery Crimes”, will be launched on 21st July 2016 from 10.30 am till 2pm at TGV Cinemas, 1 Utama, Petaling Jaya, Malaysia.This project focuses on three awareness videos, in three languages, and a campaign website to educate the Malaysian public on paedophilia. Each of the three videos will direct people to a campaign website, containing crucial information on paedophilia. Visitors are encouraged to do their part in spreading this awareness through social media. Currently, campaign ads are running on TGV Cinemas and Astro for free. Reason behind the campaignIn an interview with A+M, Naga DDB executive creative director Alvin Teoh explained that paedophilia is a taboo subject for many within Malaysia. He shared a personal experience about his nine-year old daughter, who barely escaped from a molestation attempt at school around 2 years ago.“I have my wife to thank for because she was the one who made her aware of these dangers even from young. The answer is awareness. And in Malaysia, that is lacking. It is something that is shameful and not talked about in many communities.As a dad, I was almost broken by that incident and when my creative team heard about it, they decided to work on a huge awareness campaign.” Playing a role to save innocent livesTeoh said that creative agencies such as Naga DDB have the capability to create “purpose driven” stories in furthering further social causes. “Ad agencies have the power of influence and if we can draw parents’ attention to this sickness and empower them with knowledge- we can play a role to save innocent lives from being torn away. We’re not activists, but we can bring attention to these things through what we do” Teoh described the project as being just the starting stage, where Naga DDB will be fully committed on a long-term basis towards this cause. Source credits: Marketing InteractivePicture credits: sigmalive, Marketing Interactive"
"Assaults Against Uber Drivers, Now Robbing Passengers. What Next? IN recent days, we have been reading news about taxi drivers' bad behaviour -- particularly assaults and harassment against ride-sharing drivers of Uber and Grabcar. Adding to the catalogue of bad behaviour among cabbies is armed robbery. According to NST yesterday, a 28-year-old woman alleged that she was robbed by a taxi driver behind Subang Parade yesterday morning. The victim had hailed a taxi to Empire Shopping Gallery around 8.30am.Not long after getting into the red-and-white colour vehicle, the suspect, believed to be in his 40s, stopped the taxi behind Subang Parade and brandished a knife at the victim's right ear. The English daily quoted Subang Jaya district police chief Assistant Commissioner Mohammad Azlin Sadari saying that the suspect also showed a gun to the victim.The driver fled with the victim's belongings, among others, RM1,500 in cash, house keys and a mobile phone after dropping her off in front of a post office at SS15.As the police is still investigating the matter, it is too early to tell if the suspect was really a cabbie or just masquerading as one, with the sole purpose of committing a felony. Taxi drivers are akin to ambassadors of the city and nobody wants bad behaviour from cabbies as they will give a bad impression to foreign tourists. If the suspect in this robbery is a taxi driver, authorities should take stern action against him. His taxi permit and public service vehicle (PSV) license should be revoked to avoid similar incidents from happening again in the future. Many Malaysians have already shunned cabbies and prefer to use ride-hailing services such as Uber and Grabcar. If taxi drivers are serious in stepping up their game to improve their services, then it is necessary to weed out bad cabbies. Instead of waiting for the authorities to do something about it, they should go after the bad hats themselves.Pic credit: FMT"
"Don't Take Us For Granted' KUCHING: Sarawak Chief Minister Tan Sri Adenan Satem has reminded Sarawakian Federal ministers and senior civil servants based in Peninsular Malaysia to be insistent on upholding the state’s rights. These rights were enshrined in the Malaysia Agreement 1963, Malaysia Act 1963, Inter Governmental Committee (IGC) Report, Federal Constitution and the Cobbold Commission Report.Adenan pointed out that officers from Peninsular Malaysia that were currently handling the devolution of powers process were not even born when the five documents were drafted.Her then emphasised the importance of Sarawak federal ministers and civil servants assisting in the devolution of power process from the federal to the state government.Adenan clarified that Sarawak was not seeking to secede from Malaysia, in its effort to secure the rights and privileges which was eroded in the last 53 years.FMT reported Adenan as saying, “It was Malaysia for us then when our past leaders like Tun Jugah, Tun Abang Openg, Datuk Bandar and Ling Beng Siew signed to join Malaysia. It is still Malaysia for us now and Malaysia for us in the future. We will never leave Malaysia.” Adenan explained that Sarawak has decided to commemorate every July 22 as Sarawak Day to remember past leaders who played a major role in making Sarawak as part of the Federation of Malaysia. “But we do not want to be taken for granted. Sarawak is not a state within the federation as Malaysia was born by virtue of agreement and not by way of annexation”Picture credits: FMT"
"Azalina Othman Said: A Minister's Profile New minister handling the law portfolioDatuk Seri Azalina Othman Said has been appointed as the minister handling the law portfolio effective June 28 this year after a reshuffle within the Prime Minister's Department.Prior to her appointment as Minister in the Prime Minister's Department in 2015, Datuk Seri Azalina has held the posts of Minister of Youth and Sports and Minister of Tourism. Early lifeDatuk Seri Azalina was born in Johor in 1963 but spent her early years in Penang, where she received her elementary education at Convent Green Lane School. Educational backgroundDatuk Seri Azalina started her university education at Universiti Teknologi Mara (UiTM), graduating with a Diploma in Public Administration. She then read law at Universiti Malaya and graduated with a Bachelor of Laws (Honours) in 1988.After graduating in 1988, she went on to study for her postgraduate degree at the London School of Economics and Political Science. She obtained Master of Laws in 1990. Legal careerDatuk Seri Azalina started her legal career in Malaysia as a legal assistant at Raja, Darryl & Loh law firm. Upon gaining experience, she went on to become an associate partner of Azalina, Chan & Chia law firm and, later, Skrine & Co.In 2002, she formed a partnership with Zaid Ibrahim & Co, the largest law firm in Malaysia.Political careerDatuk Seri Azalina is currently a member of the UMNO Supreme Council, a post she has held since 2000. Previously, she was the head of Puteri UMNO and UMNO Vice-President from 2002 till 2004.She was also the head of UMNO Civil Action Bureau from 2000 till 2004.Picture credits: JejakAzalina"
"Protecting ​Children Rights In Malaysia What is the CRC?The Convention on the Rights of the Child (CRC) was adopted by United Nations in November 1989. It is the most widely ratified treaty with 140 signatories and 196 as state members. What are child rights?Child rights, according CRC, can be grouped into four different categories: Firstly, survival rights cover the right to life and the right to the highest standard of health and medical care attainable. Development rights includes all forms of education, formal or informal, and the right to a standard of living which is adequate for the child’s physical, mental, spiritual, moral and social development. Protection rights include protection of various kinds of abuse and neglect, protection for children without families and protection for refugee children. Lastly, participation rights give the child a right to express his or her views in all matters that affects the child. Basic principles of CRC There are three basic principles to the treaty: Article 1 defines a “child” as a person below 18 years of age unless the laws of a country specifies otherwise. Secondly, Article 2 stipulates that the Convention applies to all children irrespective of race, religion or abilities, and most importantly, Article 3 covers the best interest of the child. Malaysia and the CRC Malaysia acceded to the Convention in 1995. As a step towards realizing the rights of the children, the government passed the Child Act in 2001 and developed a National Policy for Children and its Plan of Action in 2009, amongst many other efforts. The Malaysian Government also ratified the Optional Protocol 1, which covers involvement of children in armed conflict, and Optional Protocol 2, covering sale of children, child prostitution and pornography. Malaysia has yet to ratify Optional Protocol 3, covering communication procedure which sets out an international complaints procedure for child rights violations. Furthermore, the government still maintains its reservations on five core articles under the Convention, which are: Article 2 (the rights under CRC to each child within their jurisdiction, without discrimination of any kind) Article 7 (the right to be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality) Article 14 (the right of the child to freedom of thought, conscience and religion) Article 28(1)(a) (the right to free and compulsory primary education to all children) Article 37 (the right of not being subject to cruel, inhuman, degrading treatment or punishment and deprived of liberty unlawfully or arbitrarily) Although Malaysia has some hesitations regarding particular parts of the Convention, the CRC has made an impact and helped influence Malaysia’s ongoing efforts in strengthening the system to accommodate the implementation of child rights. Picture credits: Pemandu"
"Illegal Immigrant As Security Guard Is A No-No Why hire foreign workers?Typically, foreign migrants from Bangladesh, Indonesia, Nepal and Myanmar, among other countries, are brought in to Malaysia to work in low-skill jobs.These foreign workers are scattered among several industries namely the manufacturing, construction, services, plantations and agriculture. But why do Malaysia companies hire foreign workers instead of locals? Early this year, Deputy Prime Minister Datuk Seri Zahid Hamidi said foreign workers are brought in because Malaysian youths refused to take up '3D' jobs - dirty, difficult and dangerous.Zahid said Malaysian youths tend to be choosy, thus, forcing local employers to look for foreign workers. Employing ILLEGAL Immigrants This piece is not meant to discuss on the rights and wrongs of decisions taken by local companies to hire foreign workers to fill up vacancies in respective sectors. The bigger issue here is the hiring of ILLEGAL immigrants as security guards in some residential and commercial building.The Home Ministry's principal assistant secretary, Hanafee Yusof, urged security firms and owners of residential or commercial buildings to stop compromising on security of these buildings by hiring illegal immigrants as bodyguards. Hanafee told Bernama today that such approach of hiring illegal immigrants as security guards without going through proper procedures would be to their own disadvantage. The employers will not know the background of the guards they are hiring, like whether they (guards) have criminal records or are involved in unlawful activities such as gangsterism."" - Hanafee Yusof (Bernama, July 15, 2016)His ""warning"" is spot-on -- security guard is hired to protect something, particularly a building, against intruders, trespassers, theft or damage.No background checksHow can these security firms ensure the reliability of these illegal immigrants without conducting a proper background check?Hiring an individual, whether he/she is a local or foreign immigrant, without knowing their background, is jeopardizing the safety of residents in these buildings.It is almost impossible for residents to ascertain if the security guards have undergone proper background check before being assigned to take on this role.But why do these firms hire illegal immigrants as security guards? Is it because they are cheap and docile?Government should take stern action such as blacklisting firms that hire illegal immigrants. Drastic measures should be taken before any untoward incident happens.Pic credit: FMT"
"Is Retrenchment Fund The Best Possible Solution? OF late, there have been too many reported cases of companies retrenching employees and also of non-payment of salaries.In such instances, employees have a clear-cut case under Malaysian labour law. The problem arises when the company is insolvent or has been ordered by a court to shut down.PSM Central Committee member Dr Michael Jeyakumar said based on statistics, around 40,000 workers were retrenched yearly and one-third of that number was due to companies going bust.He said that once a company was forced to liquidate its assets, then meeting the labour law’s provision to pay retrenched workers – depending on their number of days of service – became difficult.“If a company goes bankrupt, then it will be going against the law if it tries to sell off its assets to pay its retrenched workers’ salaries since the assets now have to go to a liquidator,” he told news portal FMT.His solution was to urge the government to set up a retrenchment fund so that workers would still be compensated should a company’s assets be liquidated.“We have a workforce of about six million nationwide. If each worker pays RM1.50, each employer 50 sen and the government contributes 50 sen every month, then there will certainly be enough to take care of these workers once something like this does occur.”Is that the best solution? In genuine cases, that may be well and good. But what about companies that hide behind the law, for example, setting up companies and having drivers, security guards etc as directors? So that when things go bad, these people will take the fall for it, not the bosses.Threatened with legal action over non-payment of salaries, one chief operating officer claimed he had no idea that the company was having money problems (apparently, he had no access to the company's accounts).It was then that the staff did a RoC search and found out that the company was registered and that one of the directors (and major shareholder was the CEO's driver). The majority of the staff had never seen the CEO and didn't even know his name or who he was! The company had then been operating for more than two years and since everything was going well, nobody had bothered to check up on the company.At a meeting later a few weeks down the road, the same COO, now very hostile, waved the threat of insolvency over the heads of the disgruntled employees. It must be pointed out that just after the company (through the COO) announced that it was shutting down, the COO moved to quickly dispose off the company assets in the office.So, why should the proposed retrenchment fund protect bosses like that? The relevant laws should be amended so that employees can go after the real culprits.Errant bosses shouldn't be allowed the luxury of hiding behind RM2 companies or even appointing drivers, security guards etc as their proxies. Developers have been known to do this as well, but that is another story for another issue."
"WATCHING BRIEF LAWYERS TRAINING ​ Advocating for Victims of Sexual Crime & Domestic Violence Participants will explore: The experiences of vulnerable victims in the criminal justice system The protection available to victims and how watching brief lawyers can help access them National and international laws that protect victims Case studies applying right and protection for vulnerable victims. Trainers: Kitson Foong (Messrs Kit & Associates), Advocacy Team, WCC PenangDate: 3rd August (Wednesday 9.00am—5.30pm), 4th August (Thursday 9.00am—4.30pm)Venue: Holiday Villa Hotel Kota Bharu, Kelantan RegistrationTo register, call Advocacy Officer Joshua Teh at 04-228 0342 or email: advocacy@wccpenangNo fee charged for legal practitioners and pupil in chamber. All legal practitioner participants will receive 10 CPD points.About WCCWomen's Centre for Change is a non-profit , tax exempt organisation dedicated to the ending violence against women and children and promotion of gender equality. WCC provides free counselling and shelter services, conduct outreach and training, advocates for policy and legal reforms.For further information, contact WCC @ 04-228 0342Email wcc@wccpenang.orgWebsite: www.wccpenang.org"
"Myanmar Migrants In Malaysia Risk Jail Due To Passport Delay KUALA LUMPUR: Myanmar migrants in Malaysia are forced to overstay in the country as the Myanmar embassy here delays the passport extension process due to heavy scrutiny. According to a report by The Myanmar Times, some Myanmar nationals who are working in Malaysia risk arrest and imprisonment because of the long extension process that may take up to between four and six months. “There are many migrants whose legal status lapse because they did not get their passport returned from the embassy on time,” chair of the Yadana Setka Free Funeral Service Association, Ko Kyaw Zay Lwin told The Myanmar Times. He estimated that some 15% of those workers ended up being arrested and imprisoned. The Yangon-based newspaper quoted activists saying that in the last four years, the Myanmar embassy initially worked closely with the Malaysian Government and issued 60,000 temporary passports, known as 6Ps, for expired passports. However, the embassy now took a longer time to process the applications after discovering falsified details in the paperwork. As the embassy closely scrutinised the information provided by the applicants by comparing it with the original documents, it took a longer period for the extension process, said the activists. According to the head of a group that supported Myanmar’s prominent cleric Sitagu Sayadaw in Malaysia, U Thiha Maung Maung, the reissuance of expired passports had been delayed as in the past, there were migrants with fake nationality cards who managed to get passports. Apart from the lengthy passport extension process, it was also reported that Myanmar migrants in Malaysian detention camps faced difficulties to have their citizenship confirmed. A migrant in Malaysia, Ko Wai Lin, said he had not gotten back his passport yet after a delay of three months. ""When I asked the embassy, it was not issued. Now, I and many Myanmar workers are undocumented because of the irresponsible embassy staff. I really am a Myanmar citizen. I even gave them all my documents,"" he said. Ko expressed his fear of the police and crackdowns on illegal migrants due to the delay in passport extension process. There are many illicit ways that migrants can get their passport within a week if they can afford to pay a broker RM1,500."" - Ko Wai Lin (The Myanmar Times, July 13, 2016)The newspaper reported that there was an estimated 500,000 to 700,000 Myanmar migrant workers living in Malaysia, most of them without legal documents.Pic credit: www.todayonline.com"
"TRUE ABUSE STORIES: I Was Innocent And Knew Nothing Growing up differentSince I was young, people always call me 'lembut' or 'pondan'. But, the fact is I never wore women's clothes. It's just that my attitude is similar to a woman's. I speak like a woman, I laugh like a woman and I talk like a woman. That's just me. And I am who I am. Nightmare in boarding schoolI got accepted to boarding school when I was in Form 1 and this was the moment when the tragedies happened. One night, my senior called me to his room and asked me to sleep with him. As a 13 year old boy who knew nothing, I went to his room that night and slept with him. He asked me a lot of questions and then suddenly touched my private part that night. He whispered into my ears, ""Jangan bagitau orang lain (Don't tell anyone else)"". The day after, he came to me and apologised. I felt uncomfortable and tried to avoid him after that. Abused by different boysDuring my five years in boarding school, I was molested by different boys. They touched my private parts and asked me to perform oral sex on them. The irony is most of them are straight and have girlfriends. I didn't know what they were looking from me. But, I think they were desperate to have sex especially at that age. Afraid to fight back I didn't fight back because I was so afraid they would tell their friends. Some of them bullied me and constantly made fun of me in front of their friends. If I told anyone the truth people wouldn't believe me because they always looked down on me. During my 5 years in boarding school I was constantly verbally and sexually abused, just because I was being myself.I should've fought backYears after this happened, I realised back then I was innocent and knew nothing. I should have fought against what they have done to me. The reason why I didn't fight because people who are 'lembut' or 'pondan' always seen to be second-class human beings. People always make fun of us. I was scared to report it to the warden/teacher or my parents because of shame. It haunts me for the rest of my life.Speak up and fight backSexual assault in school,college or university is real. We rarely hear about it because the victims were really scared to speak up. I believe that there are sexual assault victims out there who are afraid to fight against it. I'll tell you something. You have to fight. This is your life and you deserve justice. I hope my story will help the victims out there to be stronger and move on with their life. COMMUNITY MESSAGE:If you suspect a child is being abused, or if you need help and have questions about child abuse, please contact: Social Welfare Department hotline: 1-800-88-3040WAO Helpline : 03 7956 3488 WCC: 04-228 0342Source: Syed Azmi FacebookPicture credits: ftcdn"
"DIY Divorce Anyone? Australia urged to consider robot lawyers for DIY divorce CANBERRA: Groups in Australia are urging the government to adapt technologies to reduce the length and cost of legal proceedings.According to Australasian Lawyer, such technologies are already being used in countries like the Netherlands, United Kingdom and Canada. Bevan Warner of National Legal Aid said Australians had embraced technology for shopping, communicating, dating, house hunting, work and leisure. Why not for legal proceedings, he argued.“Let’s face it: lawyers can be expensive, and court proceedings can be slow, confrontational and painful.” One such technology showcased at the RMIT University Storey Hall Building was helping couples in the Netherlands negotiate their own divorce and parties would only call in lawyers when needed.However, the Australasian Lawyer reporter that it might also be applied to bring about DIY processes for legal issues relating to debt and consumer matters, landlord-tenant disagreements, family law, and employment disputes.Being exhibited was the Dutch government-operated Rechtwijzer which had been online since 2007 and cost a nominal €100 to use.According to data from the ABS, this could help reduce the cost of and duration of over 45,000 divorces that happened in Australia every year. Though it allowed for mediation, legal review and adjudication if needed, the system enabled couples to comprehensively deal with their legal problem via a mediated settlement process, Warner said.Rechtwijzer asks about the couples’ details such as age, income, occupation and education and then finds out their preferences and options as part of a negotiation involving both parties.“Agreements reached through collaboration tend to be more effective than decisions imposed by judges,” Warner said.The service – developed in cooperation with various companies including those who made the dispute resolution system at eBay which deals with about 60 million disputes every year – is seen as a tool to bridge what’s being called the “justice gap”.“Technology offers the opportunity to help Australians who fall into the justice gap,” said Rob Hulls, director of RMIT’s Centre for Innovative Justice.Those who often fall into this “justice gap” are people who cannot afford to pay a lawyer but aren’t poor enough to qualify for legal aid, Hulls explained. “It is time to think differently. We must draw on innovative design, and disruptive technologies such as artificial intelligence, to dramatically improve access to justice. This will not only make existing services more efficient and effective, but empower people to resolve their own disputes,” he said.“Over the years, there have been numerous inquiries to find ways to improve access to justice - with little overall impact. And we know that while there is no shortage of legal information, information is often not enough to help those in need”. “I see no reason why well educated people of goodwill, operating in the sixteenth largest economy in the world, with a proven record in oil and gas and mining innovation, cannot lead the world in rethinking how we use adaptive technologies to close the justice gap,” Warner told Australasian Lawyer.Noting that one technology alone won’t solve access to justice, he said it would greatly contribute to broaden access to legal processes.Pic credit: news 18"
"Turning The Tables On Perpetrators Of Sexual Harassment Foo Siew Li from SKRINE explains the introduction of the tort of sexual harassment in Malaysia The recent ruling of the Federal Court in Mohd Ridzwan bin Abdul Razak v Asmah binti Hj Mohd Nor (Civil Appeal No: 01(f)-13-06/2013(W)) has introduced the tort of sexual harassment into our legal system. BACKGROUND FACTS Mohd Ridzwan bin Abdul Razak (“Appellant”) and Asmah binti Hj Mohd Nor (“Respondent”) were employees of Lembaga Tabung Haji (“Employer”). The Respondent was the subordinate of the Appellant and reported directly to him. Following a complaint of sexual harassment by the Respondent against the Appellant, the Employer inquired into the matter and issued a strong reprimand to the Appellant. Aggrieved by the complaint which the Appellant claimed to be defamatory of him and led to his contract with the Employer not being renewed, the Appellant commenced an action against the Respondent in the High Court seeking, inter alia, a declaration that he had not sexually harassed the Respondent and that he had been defamed by her. The Respondent filed her defence, detailing the vulgar words and other demeaning remarks she alleged were uttered by the Appellant, and relying largely on a psychiatrist’s report, counterclaimed for damages predicated on sexual harassment.DECISION OF THE HIGH COURT The High Court made a finding of fact that the allegation of sexual harassment had been established and dismissed the Appellant’s claim. The Court also entered judgment for the Respondent’s counterclaim and awarded her RM100,000.00 as general damages and RM20,000.00 as aggravated and exemplary damages. DECISION OF THE COURT OF APPEAL The Court of Appeal dismissed the Appellant’s appeal and affirmed the decision of the High Court. While the learned High Court judge did not state the cause of action relied upon when allowing the counterclaim, the Court of Appeal held that while not in accordance with the pleadings, the cause of action was the tort of intentionally causing nervous shock. DECISION OF THE FEDERAL COURT The Appellant was granted leave to appeal to the Federal Court on the following question of law: “Is there a valid cause of action for a civil claim on the grounds of sexual harassment under the existing laws of Malaysia?” The Federal Court considered the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace 1999 (“the Code”), which is not legally binding, and the Employment (Amendment) Act 2012 which introduced a new definition of sexual harassment and added new provisions into the Employment Act 1955 to deal with sexual harassment in the workplace. Their Lordships observed that the Code and the legislation did not confer a cause of action for a sexual harassment victim against the harasser. The Court further observed that there had been no reported case pertaining to the Employment Act 1955 where the individual victim has claimed civil remedies from an alleged perpetrator for sexual harassment.After much deliberation, their Lordships “arrived at a decision to undertake some judicial activism exercise and decided that it was timely to import the tort of harassment into our legal system with sexual harassment being a part of it.” Their Lordships then proceeded to consider what constitutes sexual harassment. The Federal Court referred to section 2 of the Employment Act 1955, which defines “sexual harassment” as “any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment.” Their Lordships were of the view that the definition in the Employment Act 1955 satisfies the three main elements of sexual harassment, namely:(i) the occurrence of conduct that is sexual in nature; (ii) the conduct being unwanted; and (iii) the conduct is perceived as threatening the victim's ability to perform her job. After acknowledging that the law of tort in Malaysia is still very much based on English common law principles, their Lordships considered the approach taken in England, Singapore and Hong Kong. The Court concluded that while there is uncertainty in England as to the existence of the tort of harassment, this tort has been recognised in Singapore and Hong Kong in the Singapore cases of Malcomson Nicholas Hugh Bertram v Naresh Kumar Mehta (2001) 3 SLR (R) 379 and Tee Yok Kiat v Pang Min Seng (2013) SGCA 9 and the Hong Kong case of Lau Tat Wai v Yip Kuen Joey (2013) HKCFI 639 respectively. After considering, inter alia, the above-cited cases, the Federal Court stated that: “the recognizable hallmarks of sexual harassment are that they are unwelcome, taking the form of verbal and even physical, which include sexual innuendos, comments and remarks, suggestive, obscene or insulting sounds, implied sexual threats, leering, oogling, displaying offensive pictures, making obscene gestures etc. These overtures all share similar traits, in that they all have the air of seediness and cause disturbance or annoyance to the victim (short of a recognized psychiatric illness or physical harm).”The Court noted that the Court of Appeal had agreed that the vulgar and sexually explicit words complained of by the Respondent would clearly amount to sexual harassment. Their Lordships were also satisfied that the lecherous behaviour of the Appellant would likewise constitute sexual harassment. However, the Federal Court disagreed with the Court of Appeal’s view that the acts of sexual harassment in the present case had caused sufficient adverse psychological effect to the Respondent to fall under the tort of intentionally causing nervous shock. Their Lordships held that even though a singular act is sufficient to establish a tort of intentionally causing nervous shock, being a more demanding tort, an aggrieved person must establish that she has suffered physical harm, which, on a balance of probabilities, was not proven in this case. The Federal Court felt that by proceeding on the basis of the tort of intentionally causing nervous shock, the Court of Appeal had missed the opportunity to discuss the applicability of the tort of harassment. Their Lordships reiterated that the introduction of the tort of harassment can be justified on the various grounds, including the following: (1) the tort of sexual harassment had been pleaded and ventilated in the High Court;(2) the tort of intentionally causing nervous shock was never pleaded in the counterclaim;(3) there was insufficient evidence or reason to introduce and establish the tort of intentionally causing nervous shock; and (4) there were more than ample evidence and sufficient reasons to import and establish the tort of sexual harassment. Their Lordships then addressed the following related issues that were ventilated before the Court: (1) the requirement for corroboration: Their Lordships held that there was no hard and fast rule that corroboration is required in a tort of sexual harassment case although like in any civil case, the rule of evidence must be stringently upheld; (2) adequacy of the pleadings: The Court was satisfied that the cause of action of sexual harassment had been adequately pleaded by the Respondent; and (3) entitlement to damages: Although the Court was not satisfied that the Respondent’s suffering had attained the level of physical harm to qualify for the tort of intentionally causing nervous shock, their Lordships were of the view that it was reasonable in the circumstances for the High Court to award general and aggravated damages for the proven tort of sexual harassment. The Federal Court, having freshly introduced the tort of sexual harassment, accordingly refrained from answering the leave question and dismissed the Appellant’s appeal. CONCLUSION The Federal Court concluded its judgment by stating, “Sexual harassment is a very serious misconduct and in whatever form it takes, cannot be tolerated by anyone. In whatever form it comes, it lowers the dignity and respect of the person who is harassed, let alone affecting his or her mental and emotional well-being. Perpetrators who go unpunished, will continue intimidating, humiliating and traumatising the victims thus resulting, at least, in an unhealthy working environment.” This decision represents a high-water mark in Malaysian law. First, their Lordships must be commended for consciously embarking on a course of judicial activism to introduce the tort of harassment (which includes sexual harassment) into our legal system. Secondly, the message from the apex court of Malaysia is loud and clear: sexual harassment at the workplace cannot and will not be tolerated. While the Code and the Employment (Amendment) Act 2012 were well-intentioned, the introduction of a civil remedy will enable victims of sexual harassment to potentially turn the tables on perpetrators of sexual harassment. This landmark decision heralds a welcomed change and a step towards the creation of a safer working environment for the Malaysian workforce. FOO SIEW LI (foo.siewli@skrine.com) 21 June 2016 Foo Siew Li is a Senior Associate in the Dispute Resolution Division of SKRINE. Her practice areas include employment and industrial relations law, and shipping and maritime law. (Image Credit: Bandeep Singh)"
"LOAN TO COTTAGE INDUSTRY PASTRY KITCHEN - Helping Single Mums From Zer(0) to something....AnB Agro Trainers knows the hardship of single mothers to raise their family. With training and perseverance, we made changes in lives of 57 ladies till date, and still counting more. We createlivelihood via agriculture for single mothers and single breadwinners to utilize fresh chilies and corns from our farm to produce agro based product and sell to increase household income. In times of recent EL NINO(super hot season), we were hit back quite hard. Our crops didn't come out as expected. Our ladies suffered. We farmers believe in ""New say never again...ever"". Like phoenix we rose and we have enhanced and diversified our cottage industry. Our ladies now bake cookies using local fruits and now baking for Ramadhan sales. We are receiving tremendous support and in desperate need to enhance and build our pastry kitchen and take in more ladies to work with us! Be part of us for these noble cause. Raising RM10950 We are aiming to raise RM10,950 to expand the capacity of our pastry kitchen. It is a loan that will be paid back by April 2017. Support usYour support could help our mothers achieve financial independence for their families. Their kids are happier, studying well, the ladies have better disposable income and eating decent meals everyday.We aim to create at least 5 Mum'preneurs before end of December 2016. Invest in our mums!We make halal cookies and working to get MESTI and HALAL certificationSource credits: SimplyGivingPicture credits: SimplyGiving"
"TRUE ABUSE STORIES: He Broke My Inner Strength It happened during my university yearsYears ago, when I was in university, my mom opened a restaurant in town X, but she was working in town Y.I was on my semester break. So, I helped mom to run her restaurant, while she was staying in town Y with my stepfather and their 4 children.I didn’t have a good relationship with my stepdad as he used to get high on weed. He never prayed, fasted and didn’t even work. So, i stayed out of his sight and avoided him as much as I can.One day, my mom came over to the restaurant and stayed for 2 nights. On the 3rd day, mom had an emergency at her work place and she had to leave to town Y. My mom said that she will be back in town X the next day. For some reason, my stepfather didn’t want to follow her. So my 4 step-siblings, 2 girls, aged 4 and 10, and 2 boys, aged 3 and 7, also stayed back at the restaurant. We were singingThat night after closing down the restaurant and cleaning up, i went upstairs into my room with my 4 step siblings and prepared them for bed. My stepfather was in another room downstairs with the other workers to smoke weed. As that was the norm, I didnt really care what they were doing. Before I sleep, I loved to sing with my younger siblings as they were so adorable. He tried to rape my younger sisterWe were singing that night when suddenly we heard a loud banging and shouting on the door.I locked the door earlier due to safety reason. My stepfather was at the door and shouting this over and over again, ""Give me your sisters or I will break this door. I want sex. And your mom is a useless bitch""My 10 year old sister was old enough then to know what her father meant.She was crying and screaming and said to me repeatedly ""Don't let him in, don't let him in"".By that time, we all stopped singing and all of us were crying. With the help of my siblings, I pushed a wardrobe and a table against the door with all of my strength. He couldn't break the door. He stopped after 1 hour. We stayed in for a whole day out of fear. Mom forgave himWhen my mom came back home, I told her the whole story. She had a big fight with him for 10 minutes before he apologised. And she accepted itMy mom told me to forget about it. I told her, it was easy for her as she wasn’t there and that it was terrifying to us. I asked my mom, how could she forgive him. I asked her my mom what if he had gotten inside my room. Mom said ""I love him"". That broke me to pieces. And we never sing anymore. Singing together brought back the memories. We all grew up and we hardly talk about it. He asked for forgiveness Ever since that night, which was 5 years ago, every Raya my stepfather would say he has repented and keeps on asking me to forgive him for that night. Even my mom begged me to forgive me.The saddest part is my youngest sister, who was 4 at that time, and is now a beautiful 23 year old, said to me, ""Since nothing happened to us at that time, please forgive my father and just let it go. And since he's my father, I have full respect and love for him since he is sincerely apologising.""My 10 year old sister remembered but she didn't wanna talk about this incident at all. She kept her distance from her father but still talks to him. My youngest brother, who was 3 at that time, didn't even remember anything. He said this to me, ""You are just trying to break our small family apart, just like yours"" Can I ever move on? I was like “Hey, wait a minute.”No one CARES what COULD have happened that night. Just because no rape took place, does it mean that nothing had happened?Everyone expected me to accept it and move on. Easier said than done. What if?My head is filled with all the 'what ifs'.Would my beautiful sister have said otherwise if I wasn't able to protect them that night, with Allah's will? What would happen to them then?She was only 4. What would happen to her? To me? Would they all still be in university right now, happily studying and without much to worry about?All in all, I believe in Allah's grace. My life is wonderful now with lots and lots of blessings. I won’t forgive him To all of you who are reading this, please don't comment here and ask me to forgive my stepfather. I won’t. That's between me and Allah.He almost committed a crime that night. He broke my inner strength . He wanted to rape my sisters, who are his own flesh and blood.Imagine living with that knowledge all the time. Living in fear of the 'what ifs'.COMMUNITY MESSAGE:If you suspect a child is being abused, or if you need help and have questions about child abuse, please contact: Social Welfare Department hotline: 1-800-88-3040WAO Helpline : 03 7956 3488 WCC: 04-228 0342 Source credits: Syed Azmi FacebookPicture credits: KSR"
"Second Assault Against Ride-Sharing Driver In A Week PETALING JAYA: Assaults against ride-sharing drivers are on the rise -- with the latest attack involving a GrabCar driver yesterday morning.In the latest incident, a 35-year-old GrabCar driver's vehicle was damaged after a group of cabbies allegedly attacked him during a pick-up at Mid Valley Megamall around 3am on Monday.According to Brickfields police chief ACP Sharul Othman Mansor, the driver was stopped by an angry cabby while he was trying to pick up two passangers from the North Point taxi zone.During the commotion, the victim alleged that several cabbies tried to snatch his mobile phone but failed to do so.Subsequently, the angry mob kicked his car and as a result, both sides of the vehicle's rear door, bumper and headlights were badly damaged.It was reported that the driver managed to escape unhurt.Sharul said police was investigating the matter and were examining closed-circuit television (CCTV) recordings.This was the second attack against ride-sharing drivers within a week.Last week, a cabbie allegedly manhandled an Iranian tourist when she hailed an Uber car at KL Sentral.Intimidation against ride-sharing drivers also happened in other states.In April this year, three Uber drivers in Penang lodged police reports separately alleging harassment by cabbies at the Penang International Airport in Bayan Lepas.Taxi drivers particularly in Kuala Lumpur are furious as they claimed they were losing their businesses to ride-hailing apps such as GrabCar and Uber.Passengers purportedly prefer Uber and GrabCar due to better customer service and most of the vehicles were in better condition than taxis.After months of war between taxi industry and ride-hailing apps, the Land Public Transport Commission (SPAD) had finally submitted a proposal to legalise these ride-hailing services. ""The proposal, among others, seeks to regulate e-hailing services and also level the playing field for existing taxi drivers so they have a fair chance at remaining competitive,"" said SPAD in a statement issued on June 18 this year. While the proposal is still pending approval from Cabinet, SPAD had requested for cooperation from all parties to avoid controversy. However, taxi drivers continued with their attacks against ride-sharing drivers despite the proposal from SPAD more than two weeks ago. Pic credit: Carlist"
"Refusing Vaccination: Upholding Or Violating Human Rights? Should children be vaccinated?The issue of whether children should be vaccinated has recently became exceedingly poignant and contentious in Malaysia, with one side talking about epidemics implications and the medical dangers of not vaccinating, and the other side, persistently asserting that they are entitled to refuse vaccination for their children. Arguing along the line of so-called individual self-autonomy, the right to informed consent and freedom from medical intervention, the ‘anti-vaccination group’ contends that such are their human rights which must not be interfered with by anyone. The primary fear underlying these parents’ stance not to vaccinate is very much based on the notion of developmental relief and sustainability which postulates that vaccination will result in aid dependency. Individual vs collective rightsAt the heart of the controversy, this on-going debate actually demonstrates the fundamental but vexing, recurring internal conflicts between the various categories of rights listed under the international human rights law. Epitomizing the skirmish between individual and collective rights in the most conspicuous way, this debate once again calls for the perplexing exercise of deciding which rights prevail over the other. Article 1 of the UN CharterThose who oppose mandatory vaccinations often relies on basic Article 1 of the United Nations Charter, which states that one of its purposes is to achieve international cooperation “in promoting and encouraging respect for human rights and for fundamental freedoms for all.” This predictably then leads to the blanket conclusion that the UN and the global community have obligations to respect all human rights, which conveniently includes the rights to refuse vaccination.Nuremberg Code and ICCPR Some proponents of anti-vaccination also quote the Nuremberg Code which states that the “voluntary consent of the human subject is absolutely essential” and the International Covenant on Civil and Political Rights (ICCPR) which in its 1966 text, states that “no one shall be subjected without his free consent to medical or scientific experimentation.” In support of this belief, reference is further made to the Universal Declaration on Bioethics and Human Rights 2005 which mentions, “any preventive…medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information.” The declaration is argued to have further maintained that the “sole interest of science or society” does not prevail over the aforesaid human right. Mandatory vaccination: a violation of human rights?Based on these provisions, it is argued that mandatory vaccinations or any form of indirect coercion compelling people to succumb to the said vaccination is a violation of their basic human rights.Though the above may be true to a certain extent, from a different human rights perspective, mandatory vaccination can also be viewed as something that upholds human rights since it equitably brings benefit to the society namely by promoting and protecting public health. What about the right to adequate standard of health?Article 25 of the Universal Declaration of Human Rights states that: Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, and medical care ... every individual and every organ of society …shall strive … by progressive measures, national and international, to secure its universal and effective recognition.This insinuates that the right to an adequate standard of health well-being is also part and parcel of human rights law. Hence, by denying children from receiving vaccinations, that by itself could actually be a violation of their rights to medical care, and the right to obtain adequate standard of health and well-being. Above and beyond that, the parents’ denunciation of vaccination can also inevitably cause communal harm since it will compromise herd immunity. What about the rights of others ? By boosting the numbers of unprotected, vulnerable individuals in a community and thereby increasing the possibility of hazardous disease outbreaks to occur, these parents are actually also in violation of other people’s rights to adequate standard of health and well-being. This brings us to the question of whose rights should prevail over the others and what is the justification for such verdict? The Siracusa PrinciplesThe Siracusa Principles which was validated by the United Nations Economic and Social Council in 1984 states that: public health may be invoked as a ground for limiting certain rights in order to allow a State to take measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured”. In other words, any state is permitted to restrict individual autonomy in order to prevent harm to others. If the risk to health is extremely high, individuals should not be allowed to compromise group protection and communal rights. This is allowed on the condition that the restriction employed is effective, the least restrictive, and reasonably proportionate to the risk intended to be avoided. It must also be equitable and non-discriminatory, minimally onerous and in line with due process. Universal Declaration on Bioethics and Human RightsIn fact, the Universal Declaration on Bioethics and Human Rights itself through its Article 27 actually permits limitations on the rights mentioned therein as long as it is “for the protection of public health or for the protection of the rights and freedoms of others”. The only condition prescribed upon such limitation is that “any such law needs to be consistent with international human rights law.” And similar to the Siracusa Principles, the test expounded to evaluate the legitimacy and legality of the restrictions centers on the question of whether the measure is lawful, strictly necessary and proportionate to the risk. Bearing the burden of proving the element “strict necessity” the state must be able to illustrate that it has chosen the least restrictive alternative to achieve the public health objective. This is however not an irrefutable condition. Although non-coercive methodologies are to be applied first, a state may also choose a more restrictive method if it can be shown that a less restrictive alternative will not be a viable and practical option in its respective local contexts.The best interest of the children Another missing perspective from this debate is the voices of the children themselves. Malaysia has ratified the United Nations Convention on the Rights of the Child well over a decade ago. Based on the said ratification we are deemed to have agreed to ensure that “…in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Hence, any decision that we make must be made solely based on our genuine consideration of what is in the best interests of children. Article 24 of the Convention on the Rights of the Child provides that every child has the right to “the enjoyment of the highest attainable standard of health.” Vaccination is an effective toolAccording to the World Health Organization (WHO), immunization has been proven to be an effective tool for “controlling and eliminating life-threatening infectious diseases, and is estimated to avert between 2 and 3 million deaths each year. It is one of the most cost-effective health investments...while any serious injury or death caused by vaccines is one too many, the benefits of vaccination greatly outweigh the risk, and many, many more injuries and deaths would occur without vaccines.” True, there may be some other evidence out these showing otherwise, and this battle of facts and scientific data can go on and on. But this doesn’t alter the fact that this debate has brought us back to the age old irresolvable and internal conflict in human rights namely, when one right contradicts another, which one prevails?Dr. Shahrul Mizan Ismail,Associate Professor,Faculty of Law, Universiti Kebangsaan Malaysia (UKM)Picture credits: NST"
"TRUE ABUSE STORIES:  He Would Rape Me Every Time He Got The Chance Living a scarred lifeI am a 38-year-old happily married woman with beautiful three children living a scarred life. I was a victim of sexual abuse too. It happened when I was 5-6. It's a norm for us Malaysians to send our children 'balik kampung' during school holidays to let the children experience kampung life and spend time with their datuk (grandfather) and nenek (grandmother). In my case, my favourite cousins lived beside my grandparents house. So, every other weekend or school holidays, my parents would leave me with with my cousins so we all could play together. My uncle raped meSometimes, my parents would let my 'pakcik' ( my cousins' father) send me home. That was when it all started. He would stop at any nearby oil palm 'kebun' and raped me. I really didn't know what he was doing to me. I was five! From that moment he would rape me every time he got the chance. Once he did it in the river where he took me and his children for a splash. He did it to his own daughter tooWorst of all, he would also rape his own daughter (my cousin), who is a year older than me. I remembered once when I was with my cousin at night. She whispered to me ""Don't worry. He's not going to do it to us tonight. He is fasting"". I didn't really understand her but she was wrong. I finally remembered what happenedAs time passed by and as I got older, I no longer spend my weekends at my cousins. Gradually, I finally recalled what actually happened. I was angry because of not knowing what to do and on how to react. There's no one I could talk to. Not even my cousin because, as we grew older, we were seeing less of each other. Though she did confess she suffered from stress before SPM. She was close to telling her mom because she just couldn't take it anymore. But she loves her mom so she chose to continue to keep it a secret. And, before her wedding day her dad asked for forgiveness. She is going to put everything behind her.I grew up with a lot of hatredThere was no trauma but I grew up with a lot of hatred in my heart. I snapped at a blink of an eye. All this bottling up is killing me inside. I tried to tell my story to one of my good friends. Her response was ""Who will marry you after this?"" So i ended up telling all about my dark childhood to my steady boyfriend. The 'pakcik', on the other hand, will at least try to shake my hands during Raya or any family gathering. I would try all I can to avoid him. Even until now.I'm a survivorI believe I'm a survivor. The fact that it happened when I was very young, made the impact seem less, which I'm thankful for.However, i will not send my daughters to have a sleepover, not ever, to her friends, cousins or grandparents' place.I would always ask her ""did he touched you inappropriately anywhere?"" every time she gets a new male teacher, ustaz or whenever I saw anyone from the family touching her (hugs, taps, handshakes). I would also tell her if she ever feels uncomfortable she should be clear about it and say it out loud.COMMUNITY MESSAGE:If you suspect a child is being abused, or if you need help and have questions about child abuse, please contact: Social Welfare Department hotline: 1-800-88-3040WAO Helpline : 03 7956 3488 WCC: 04-228 0342Source credits: Syed Azmi FacebookPicture credits: albawabhnews"
"Table Anti-Grooming Law In Next Parliament Sitting' PETALING JAYA: The Government must tackle child pornography and anti-grooming issues as soon as possible by introducing relevant legislations in the coming Parliament sitting and also, to provide training for police officers to identify possible child groomers. Malaysia Crime Prevention Foundation senior vice-chairman Tan Sri Lee Lam Thye said of the 400 cases of Internet-related rapes recorded since 2010, 339 cases involved minors. Lee said anti-grooming and child pornography laws were necessary as Internet-savvy children were not mature enough to determine what was right or wrong. In a statement issued yesterday, Lee said paedophiles can reach minors irrespective of geographical location due to rapid development of technology particularly Internet and mobile gadgets. He said paedophiles may establish an emotional connection with a child, and sometimes with the family with the intention to sexually abuse the minor. “This could also happen over the Internet, with the paedophile arranging to meet the child in person or the ‘online friendship’ turns into pornography or sex traffic­king."" Meanwhile, according to Bukit Aman’s head of Sexual Investigation Unit (D11) Deputy Supt Tan Gee Soon, Malaysia ranked third in Asean countries for possession, distribution and dissemination of child pornography. The revelation was shared by foreign police authorities.Tan said the police had prepared a new law, modelled after a Singapore law on legislation concerning sexual grooming of underage kids, but had yet to submit it to the Attorney-General's Chambers (AGC). Currently, Malaysia had no child pornography laws but Section 292 of the Penal Code and Section 5 of the Film Censorship Act prohibited possession of pornographic images and films. There had been much debate in recent weeks that the Goverment must expedite amendments to the Child Act 2001 following the arrest and sentencing of British paedophile Richard Huckle, who admitted to sexually abusing scores of Malaysian and Cambodian babies. If the proposed law was ready, the police should immediately submit it to the AGC. While the authorities are procrastinating on the submission of the new legislation to Government agencies, paedophiles are still walking among us, preying on the vulnerable. Just after the Huckle news shocked Malaysians, a local activist warned about the possibility of a group of paedophiles in the country who were sharing pictures of random kids online and posting sexually explicit comments about them.Members of the local group on messaging app Telegram numbered about 751.Pic credit: hdwallpapers"
"Cameron Announces He Will Step Down Over Shocking Brexit Vote Results UK votes to leave the EUToday, UK voted to leave the European Union. The world is currently reeling in shock.In the aftermath of the vote, Prime Minister David Cameron announced his resignation, but promising to ""steer the ship"" within the next few months and expected that a new leader should be appointed by early October.I do not think it would be right for me to try to be the captain that steers our country to its next destination - David CameronIt is widely speculated, Boris Johnson, the former London mayor, is tipped to seek to replace him.Will Brexit impact the EU?Some within the EU community believe that the UK, by quitting the EU, could encourage other nations to follow suit with their own referendums or demand their own tailor-made deals.What will happen during that time?The UK would have to negotiate the terms of its departure. These issues include applicable financial regulations to the City of London, trade tariffs and movement rights of EU citizens and UK nationals. Both the European council and the parliament in Strasbourg would have to ratify the agreement. How long would it take to leave the EU? It would take a minimum of two years for the UK to leave the EU. The UK would still be required to abide by EU treaties and laws. But, it could no longer take part in any decision making.Source credits: TelegraphPicture credits: 4bp.blogspot.com"
"Gunning For Trouble Lone gunman taking hostage in German cinemaA masked gunman took hostages in a German cinema on Thursday before the police stormed in and shot him dead.The current German Weapons Act is considered to be among the strictest gun control law in the world. And yet, somehow the gunman managed to obtain a weapon. Meanwhile, closer to home PKR politician Bill Kayong was shot dead early Tuesday morning in Miri. This caused a ripple of shockwaves throughout Sarawak and the rest of the Malaysia.How did the murderer get his hands on the gun that killed Bill Kayong? How did this happen when Malaysia has very strict gun ownership law?Gun control in Malaysia There are two acts that deal with guns in Malaysia:The Arms Act (1960)The Arms Act requires a person to possess a license for all gun-related matter: from manufacturing, import, export, repairs, to actually having it in his hands.The Firearms (Increased Penalties) Act (1971)The Firearms Act deals with crimes committed with a gun, such as extortion, robbery, resisting arrest, and house-breaking. The punishment for discharging firearms when committing these type of crimes is the death penalty. An accomplice to the crime will also face the same penalties.Number of Malaysians having firearms licence As of December 31st 2015, nearly 90000 Malaysians have been issued with firearms licence. Shotgun licences - 63,145 Pump-action shotguns - 7731 Pistols - 12917 Revolvers - 1789 Rifles - 2243 Of the number, 12,917 licences were for pistols, 1,789 for revolvers and 2,243 for rifles- Home Minister Datuk Zahid Hamidi (The Star, 28th March 2016)How easy is it to obtain illegal firearms in Malaysia?Illegal firearms smuggling Parts of the land borders between Malaysia and Thailand (on West Malaysia side) and Indonesia (on the Sarawak side) are known to be porous, where smugglers could take advantage and bring in drugs and firearms across the border.Along the Malaysia-Thai border, cross-border movement is a daily affair along 'rat lanes'. According to the authorities, these rat lanes are numerous. There are not enough rangers to patrol the border areas.The situation is no better along the Sarawak-Kalimantan border. The Borneo Post reported the recent rise of gun-related crimes such as armed robberies and murders and drug cases in the state is possibly because of the unsecured border between Sarawak and Kalimantan.Deputy Home Minister Masir Kujat stated there were plans to fence up certain border area but they were put on hold becauseMasir also pointed out that one of the worrying issues now were the cross-border firearms smuggling. “How serious it is, we do not know because our border area is very porous.”- Masir Kujat, Deputy Home Minister (Borneo Post, 22nd June 2016) It may be true that we have strict gun control laws. But, if we're unable to control the influx of illegal arms being smuggled into Malaysia by monitoring our border areas, the law in itself wouldn't be able to reduce gun-related crimes in our country.Picture credits: Alternet, Variety, Channel News Asia"
"TRUE ABUSE STORIES: Raped By My Big Brother A victim of my own big brotherAfter reading all the stories that you shared, now I know there are lots of people who are suffering from this. I feel so sad.I'm also a victim. I was raped several times by my own brother since I was 7 or 8 until 15, I think. My brother was 2 years older than me. It was awful. For your information, I'm the only girl in my family.I have 2 younger brothers. They all knew what he did to me, but we have been warned. that if any of us told our parents, he won't hesitate to kill us. So we kept silent. It happened during school holidaysHe would usually try to do something to me during school holidays.. That was why every time during school holiday I would try to persuade my mum to send me back to the 'kampung'. The worse part was, he even offered his friends to have sex with me. Once, he also forced my younger brother to have sex with me. It never happened, but my younger brother ended up crying a lot when he tried to force him to do so. How it finally stoppedHow it finally stopped? When I was in secondary school, I finally knew what sex meant. So, during that time I realised what he did to me was bad.If I didn't give what he wanted, He would hit me until I said yes.When I was 15, I couldn't stand it anymore. I told one of my teachers. She helped me. She wanted to tell my mum, I said there was no need to because at that time my mum and my dad was in the middle of a divorce. I didn't want to burden her any more.I finally took a risk One day, when he was pushing me to have sex with him, I fought back.I argued with him and he hit me. I had several bruises on my body.. Luckily, at that time my grandmother arrived home. He stopped. And after that incident, he never dared to do anything to me anymore.How it affected me I had severe depressions.I tried to kill myself several times, but Allah helped me. I'm thankful that I stayed in boarding school. During that time I learnt a lot about religion. I tried to build my own inner strength. This tragedy happened 20 years back, but its still haunts me until now. My current relationship with my brother is still quite OK even though I'm still angry what he did.But, looking at what he is going through in his life right now, I think Allah already punished him. I want to help othersIt may be easy to forgive, but it's hard to forget.Reading the stories that you shared makes me more eager to help. I'm willing to share with these people the experience I had and on how to move on.Seriously, it's not easy. But, with support and awareness, Insya Allah, it will be.COMMUNITY MESSAGE:If you suspect a child is being abused, or if you need help and have questions about child abuse, please contact: Social Welfare Department hotline: 1-800-88-3040WAO Helpline : 03 7956 3488 WCC: 04-228 0342Source credits: Syed Azmi FacebookPicture credits: kolkata.com"
"What Life Is Like As A Pupil What it's like to be chambering?Law graduates wishing to practise in Peninsular Malaysia are required to undergo a compulsory nine-month term of practical training called ""chambering"" or ""pupillage"", under the supervision of a senior lawyer. After the term ends, the pupil will be admitted to the High Court of Malaya as an advocate and solicitor − a full-fledged lawyer.AskLegal interviewed a pupillage student, Derrick, who is in the middle of his chambering in a KL law firm to hear his experience so far. Where are you originally from?I was born and grew up in Kuching, Sarawak. Sometimes, for amusement I refer to myself here as the ""Boy from Borneo"". How and why did you decide to chamber in Kuala Lumpur? There were a few factors that drove me to do so. Firstly, the idea of what we refer to as a ""double locus"" or the right to be heard on both sides of the Federation was appealing. Secondly, the different level of exposure and challenges that the legal industry here offered. And finally, having lived here while preparing for the CLP, one could say I got used to the momentum of the city and have adapted to life here. How was your first day at the firm? The first day was simply getting introduced to the firm, its partners, associates and of course, the other pupils. The firm is quite particular about getting its pupils orientated to its standards in terms of administration and conduct. Sorting and filing my papers for pupillage was the first priority, though my master was ready to have me directly involved in a file straight after. What do you do daily while chambering?There is no typical work routine for us as it is dependent on the files which we are involved in at any one time. As I am in the litigation department, three quarters of the tasks I usually deal with are litigation related. As pupils, we are expected to be flexible and willing to assist in numerous ways. Be it in terms of research, drafting, attending meetings or even with simpler though necessary work such as translation and transcribing. How is the environment at the firm? The work culture is very positive. Be it partners, associates or pupils, we generally socialise quite a fair bit both at work and after work. This has helped develop relationships that make it easier and more comfortable for us to work with each other on tasks. I suppose there is generally less tension than what one might expect from a firm of such repute. It feels quite balanced overall. What have you learned from your experience at the firm so far?In terms of practical knowledge, the inner or should I say, ""behind the scenes"" processes of dealing with cases efficiently is unquestionably valuable. But patience and the necessity of being meticulous and confident are certainly attributes I have learned to prioritise even more based on my time here so far. Being able to witness how a variety of clients, be these companies or individuals, are handled has also been rather engaging. On a side note, outside the firm I am thankful for the opportunity to hone certain skills through legal aid duties. What is your next plan after chambering?I would be happy to continue in KL and practice. However, I am also keen on completing my pupillage back in my hometown as expressed earlier.Whether that will be immediate or after some time in KL is not subject to particular preference for now. Any advice for future pupils?For current law students, I would advise them to do attachment as that would expose them to the typical environment of practice. That would help in deciding their next step post-LL.B i.e. whether you would like to practice or do something else. For those who have chosen the former and are seeking pupillage in the near future, I think one should check out the firms to find out which one would likely provide the experience they are seeking. That is regardless of whether a firm is small, medium or large, as each offers its distinct share of learning opportunities. What made you choose to read law? I am not one of those who were ""inspired"" by legal dramas, icons or lawyers whom I personally knew. Initially, I chose law as I felt it would be a prestigious degree to have and that the course would be in line with my strengths which lie primarily in language and writing. As it progressed, I became more interested in the substance and decided that I would like to practice, over alternative career paths that my qualifications would enable me to pursue.Picture credits: 4bp.blogspot.com"
"TELENISA: Sisters In Islam Legal Clinic Want to know about your legal rights?SIS provides free gender-sensitive legal advisory services to women men on their legal rights under the Islamic Family Law and the Shari’ah Criminal Offences Law SIS legal clinic is conducted:every Tuesday, Wednesday & Thursday from 10.00 a.m. to 5.00 p.m. Five ways to know your rights:write an email to telenisa@sistersinislam.org.my write a letter and mail it to this address -No. 4, Jalan 11/8E,46200 Petaling Jaya,Selangor, Malaysia. fax to 03-7960 8737 call us at 03-7960 8802 (Talian TeleNisa) one-on-one legal advice (by appointment only) Don't wait to know and claim your rights!Pic credits: Sisters in Islam"
"What If Cabbies Attack My Personal Uber Driver One Day? FRETTING OVER ROGUE CABBIESI USE public transport on a regular basis since I don't drive and yes, I admit I use taxis sometimes. However, due to our cabbies' bad attitudes, I do so only as a last resort, preferring instead to use my personal Uber driver – my husband, of course. Bright and early Wednesday morning, hubby dropped me off at Mid Valley. As I exited the car, I passed by some taxi drivers who glared at me in a not-so friendly manner. I thought nothing of it but some hours later, I was horrified to read on Facebook of some 50 cabbies who allegedly ganged up to assault a Uber driver and his passenger at KL Sentral on Monday. Of course police have now denied reports that a tourist was injured and said that an altercation only took place between one cab driver and a Uber driver. Brickfields Police Chief ACP Sharul Othman Mansor told NST Online: “The Uber vehicle, which was ferrying an Iranian passenger to her destination, was obstructed by two or three taxi drivers. This led to an argument between them.” China Press had reported that an Iranian couple who had just arrived in Malaysia were in the Uber car when attacked by 50 taxi drivers waiting in ambush at KL Sentral. Sharul denied reports of a broken car window, supposedly resulting from objects thrown at the Uber vehicle. NOT THE FIRST REPORTED CASE I don't know which report is true but I do know this is not the first time taxi drivers have resorted to violence and probably, it is not going to be the last time either. If the authorities don't come down hard on troublemakers, the emboldened cabbies will continue to cause havoc. Some time back, a colleague shared a posting (I think it was on WhatsApp), supposedly by a cabbie who related how he was going to pose as a Uber customer and then damage the Uber vehicle. He added that the Uber driver won't be able to lodge a police report since Uber isn't exactly legal here. So, will my hubby and I be attacked by cabbies one day when he drops me off or picks me up? I hope not but one never knows. I want to be assured that cab drivers are not going to beat up my hubby or me or anyone else for that matter.Whether or not Uber is going to be legalised in Malaysia is another matter. But the authorities should punish cabbies who take matters into their hands by prosecuting them and making sure they pay for the crimes. It will serve as a deterrent to other cabbies who will then think twice, even thrice before harassing Uber drivers or innocent drivers. Picture credits: Star Online"
"Brunei Citizen Demands Sarawak Churches To Be Demolished Demolish Miri churchesAn apparently unhappy Bruneian citizen has vented his frustation on reddit, on the number of churches in Miri, alleging it is offensive to Bruneians.The remark caused a storm in neighbouring Sarawak and within Brunei itself, drawing much anger and criticism.His comment in the reddit post* says it all: Think twice before demolishing churchesFreedom to build and maintain places of worship in Malaysia is guaranteed in our Federal Constitution. Article 11(3) : Every religious group has the right to manage its own religious affairs, establish and maintain institutions for religious or charitable purposes; and to acquire and own property and hold and administer it in accordance with law. Think twice before you post!This comment does little to improve relations between people of different faiths and country. It serves only to inflame negative reactions and unrest.Perhaps more mutual respect will go a long way in maintaining social harmony. As the old saying goes, 'Love your neighbour'.*The comment has since been deleted from redditPicture credits: tgslutong, reddit"
"Disney Could Face Lawsuit Over Fatal Alligator Attack Legal trouble ahead for Disney?The Walt Disney Co. could face a stiff legal fight in the aftermath of the fatal alligator attack at its Orlando resort last week.On Tuesday, an alligator dragged Lane Graves, a 2-year-old Nebraska boy, at a lagoon at the Disney Grand Floridian Resort and Spa as he waded in the shallow water. His body was found a day later.The Graves family could look to sue Disney, questioning the company’s inadequate policies on its resort wildlife handling. Family spokesperson, Sara Brady, said that she wasn't able to comment on whether the company had hired legal counsel related to the incident. What the potential lawsuit would hinge on In the event of a lawsuit, Disney’s prior knowledge about the potential dangers of alligators at the resort would be the key factor.Disney could also potentially face a more serious lawsuit for gross negligence.“If they have a knowledge of (alligators’ presence), they have to pass it onto customers. If they failed to do so, it’s considered negligence, or failure to conduct yourself in a reasonable manner. What a reasonable person would do,” “It appears to me that it’s heedless — and actual disregard — of the safety and welfare of this child and family to merely have a sign up that says 'no swim',”- Frank Branson, Dallas trial attorneyDisney meanwhile declined to comment further on the incident and released an official statement:""We are installing signage and temporary barriers at our resort beach locations and are working on permanent, long-term solutions at our beaches,"" ""We continue to evaluate processes and procedures for our entire property, and, as part of this, we are reinforcing training with our cast for reporting sightings and interactions with wildlife and are expanding our communication to guests on this topic.""- Disney official statementWill Disney settle the case out of court? If there is a case brought against Disney, the corporation would possibly look to settle it in order to avoid negative publicity. But, then again, Disney has a reputation of strongly defending all cases brought against it.Source credits: WFAAPicture credits: matzav.com"
"READERS COMMENT: Philippines Charities Must Return Ransom Monies *** READERS COMMENT *** Article Contributed By Joseph Francis *This article is the personal opinion of the writer and does not necessarily represent the views of IRR Legal Sdn. Bhd. If the Malaysian Government and the police have a policy, as publicly stated, of not paying ransom to secure the release of kidnap victims, then it seems that handing over monies to so-called charities to secure the release of kidnap victims is a contradiction in terms No matter what the actual figure, RM12 million or RM18 million, the charities in the Philippines that reportedly received the ransom monies, purportedly for the release of kidnapped Malaysians, can’t keep them. Otherwise, they can be held party to an illegality. We are assuming that these charities, Islamic we are told, did receive the said monies as announced by Home Minister Ahmad Zahid Hamidi. The Home Minister, in any case, has to do better before Malaysians can be persuaded that the ransom monies did end up with the so-called charities. So far, we have very little to go on. It’s not a question of trust, but procedure. For starters, we have learnt that the families of the four kidnap victims handed over at least RM12 million to two Special Branch men in eastern Sabah. How the Special Branch comes into the picture is anybody’s guess. Thereafter, the picture gets murky. It appears, as it’s being implied, that we have to swallow whatever position has been taken by Putrajaya on the ransom monies as the Gospel Truth. They say once bitten, twice shy. After the various mega global financial scandals that have hit the country, no one is buying this. It’s difficult to believe that Abu Sayyaf would kidnap Malaysians, as usual, for ransom and agree that the sums demanded be handed over to so-called Islamic charities in the Philippines. The charities are probably in a better position than Abu Sayyaf. It’s the militants who are in a bad shape and need funds. There’s no evidence either that the militants are operating under the cover of the charities. Besides, charities seek public and government donations. They don’t go around outsourcing kidnappings to raise funds. Something doesn’t smell right. It seems that we are faced with another situation where crimes may have taken place and yet we don’t know who the criminals are. Déjà vu! The mega global financial scandals bogging down the Administration, have so far turned out to be a case of crimes being committed but without any criminals being apprehended in the country. The nearest are those who have been nabbed in Singapore for facilitating money laundering activities. The same thing may happen in Switzerland and elsewhere where investigations are taking place. The banks involved are likely to just get a rap on the knuckles by way of fines. In the case of the ransom monies paid to the charities in the Philippines, we have to get more information that leads to the smoking gun. Obviously, we can get nothing out of Zahid and the Special Branch. In fact, the Special Branch may not even be involved. In that case, we wonder who turned up and collected the ransom monies from the families of the victims. If the Malaysian Government and the police have a policy, as publicly stated, of not paying ransom to secure the release of kidnap victims, then it seems that handing over monies to so-called charities to secure the release of kidnap victims is a contradiction in terms. We don’t have to get into rhetoric and polemics on the issue. (Image source: BBC)"
"TRUE ABUSE STORIES: He Did Things To Me That Were Unbelievable I was raped by my step-brotherI would like to share with you my story. When i was 8, my mom remarried a guy with one son. His son was the same age as me but he did so many things to me that were unbelievable for an 8 year old.He took off my pants, lay on top of me, put his private part in me and more. I told my mother and, instead of taking me to the hospital for a check up and all, she hit me with an umbrella.I was devastated. My sister became a victim tooWhen my mom had a new child from her second marriage, my sister was also being molested by my step-brother. Because she was only 2 or 3 that time, she couldn't say it but she did it by mimicking the actions of what my step-brother did to her. My mom jumped and sent my sister straight to hospital for check up.What hurts me the most is, it doesn't matter if your age is 8 or only 3, we are girls that have been used and manipulated. I'm sad that no action has been taken against my step-brother. I fought back The last time he tried it was when we were 13. He tried to unzip my pants while I was asleep. Thank God, I woke up and was big enough to give him a strong kick.This experience haunts meThis history haunted me. I used to hate men and would bully man physically to show them i am strong. It was horrible because it ruined my relationship with men.But now, I'm married and i have my own daughter. I am more aware and careful. I always advised my daughter to not let anyone touch her private parts and to let me know if any men try to do anything funny to her.I don't trust anyone around her and always keep and eye on her, even if she hangs around with my brothers.Never againI don't want things to happen to my daughter or anyone else's daughter. This is why I keep saying to my husband to always let our children feel comfortable in telling us everything, to always listen and be protective.There are no such things as kids telling lies or making up stories. We should be alert when they tell things like this.Please keep my name discreet and only share my story. I want people to know how things like this affect people's life and it hurts. It really hurts.COMMUNITY MESSAGE:If you suspect a child is being abused, or if you need help and have questions about child abuse, please contact: Social Welfare Department hotline: 1-800-88-3040WAO Helpline : 03 7956 3488 WCC: 04-228 0342Source credits: Syed Azmi FacebookPicture credits: greekreporter.com"
"Nursing Female Dog Fatally Shot, For No Reason At All Another heartbreaking case of animal crueltyNetizens around Malaysia have been enraged by a recent Facebook posting that has been circulating and shared over 5000 times. And the outpouring of outrage is for good reason. Female dog randomly shot dead A nursing female dog that went out to look for food in Taman Junid Perdana, Muar was randomly shot dead. The Facebook posting has this to say about the incident: She didn't know why she was shot. She didn't know what did she do wrong. Her five babies were waiting, crying for their mother to come home and feed them. Little do know they know, she's not coming home today. She had a lot of milk and love to give them. But today, she didn't make it. All because of one evil human being decided to find joy in killing a defenseless soul. This is what we have become. My heart weeps...Any witness in Muar Johor or if you have any lead please come forward. Today a dog, tomorrow could be your children, your family or you. -Fortress of Fur Facebook Animal cruelty can land you in jailUnder the new Animal Welfare Act 2015, offenders face a minimum fine of RM20,000 to a maximum of RM100,000, 100 times heavier than under the Animal Act 1953, and possibly a prison sentenceWhen will this end?This latest news of animal cruelty only serves to show that our awareness on animal rights is still extremely low in Malaysia. Until society finally realise that it is both wrong and ILLEGAL to commit acts of cruelty against animal, this recent incident, unfortunately, won't be the last one we will be reading of in the future. Mahatma Gandhi once said nations are judged from the way they treat animals. What kind of nation do we want Malaysia to be known as?Source credits: A Fortress of FurPicture credits:A Fortress of Fur"
"Jobless Man Jailed A Year For Stalking Former Lover SINGAPORE: A jobless man is the first to be convicted of unlawful stalking under the island republic's Protection from Harassment Act (Poha).Twenty-six-year-old Lai Zhi Heng had stalked his former girlfriend, a 19-year-old student, between November 2014 and November last year and had repeatedly threatened to release her nude pictures to people she knew if she did not heed his requests to meet him and send him more nude pictures.He was jailed a year after he had admitted to unlawful stalking, rash act causing hurt and criminal intimidation with a stalking charge taken into consideration in sentencing.Under Poha, the maximum penalty for unlawful stalking is a S$5,000 (RM15,178) fine and 12 months' jail while for criminal intimidation, the maximum penalty is 10 years' jail and a fineDuring that one-year period, Lai posted her nude pictures onto the Facebook page of the victim's school's student club, put up flyers with her picture and harassing messages near her home.He was charged last November and while out on bail earlier this year, he threatened to post her nude pictures online if she did not give a mitigation letter to his lawyer. The two had a brief sexual relationship in 2013 while she was romantically involved with another man. Due to Lai's continual harassment, she broke up with her then-boyfriend and although Lai wanted her to be his girlfriend, she rejected him. After she complained to her lecturer about the harassment in late 2013, Lai had an argument with the lecturer and left school, blaming the victim for ""ruining his life"".Months later, he sent her a picture of his private parts and asked for one in exchange. When she ignored him, he threatened to go to her home and harass her.She then complied and Lai used the picture to further threaten her. She ended up sending him 30 naked pictures of herself but he continued sending her harassing messages and even printed flyers and put them up at her block.District Judge Lim Keng Yeow warned young people who may engage in sexting, treating it as adventurous and harmless. ""The facts of this case do demonstrate how sexting can lead to an avalanche of harm far beyond what a sender can anticipate. What seems innocent may easily prove to be profoundly damaging, for there are myriad motivations and methods for what is sexted to be abused.""Picture credit: http://lorirtaylor.com/"
"Somebody Kissed My Car! What Do I Do? You’re in a car accident, what do you do? You are driving along the highway in your brand new Toyota. Out of nowhere, another car suddenly bumps into yours, wrecking your car's rear lights and bumper.You hit the emergency brake and stop You start to think. “Oh no! Now what?”FIRST of all, keep calm, don’t panic and follow these steps. 1. Take down the details of the vehicles involved in the accident: The licence plate numbers The car's year and model The colour of the car 2. Take down the details of the driver / passengers / witnesses: Their names, addresses and IC number The driver’s driving licence number Telephone number (work and home) 3. Take photos of the accident scene Take photos of the vehicles involved Don't forget to take photo of both vehicles' damaged parts If your car has a dash cam, save a recording for it for evidence 4. Lodge a police report of the accident: By law, you must lodge a police report within 24 hours of the accident Explain how the accident happened ALWAYS ask for a certified copy of the police report 5. Keep proper records: certified copies of police reports medical reports (if any) receipts for any incurred expenses The next stage would be filing claims for your wrecked Toyota..Stay tuned next time to find out more!Pic credits: thecord.ca"
"French Court Rejects Drug Suspect's Bail Money In Smelly Banknotes LYON, France: A suspected drug dealer's attempt to be bailed out failed when prosecutors objected to the bail money of 1,000 banknotes smelling of glue.The 30-year-old suspect was promptly marched back to jail where he would be cooling his heels until his trial date in September.The bail amount was for half a million euro and the public prosecutor said he was amazed when 29 people appeared to produce the payment on the suspect's behalf, carrying envelopes stuffed with large-denomination banknotes.The suspect's lawyer argued that the bail order did not stipulate payment had to be made by cheque.To add insult to injury, the attempted payment prompted the court to order a separate money-laundering enquiry. It was not reported whether the banknotes would be returned to those who proffered them.https://www.yahoo.com/news/french-court-rejects-dr..."
"TRUE ABUSE STORIES:  He Killed His Own Daughter The heavy weight on my shoulderI feel the weight on my shoulder. I think it's time to share the story. Please hide my profile. Unlike other victims, my mum is a very caring person and she never leaves me alone with anyone, other than my grandparents, of course. No uncles, no cousins. The demon was my dad.. What my dad did to meI was 6 years old when it first happened. I come from a poor family and we can't even afford to buy a fan. Sometimes it'll get too panas (hot) at night. How I wish I could tahan (stand) a little and didn't tell my dad that I felt too hot. ""Panas? Buka seluar kalau panas (Hot? Take off your trousers if you're hot)""For a 6 year old kid, that sounded harmless. But I didn't take off my pants, He did! He put me on top of him and positioned me to ""hmmm"" his ""comfortable"" spot. My mum woke up just in time. Thank God! There were big arguments after that night. I can't remember what they talked about. I felt confused and all I did was cry.Talking to mumThe next day, my mum brought me to town. She wanted to talk it out.""Does it hurt?"" she asked.""No."" I said.She hugged me. She cried. It happened againThat's the only event she knew. It happened again, twice. He tried. And he failed. The last time he tried was when I was 15 years old. He asked me to open my room door saying he wanted to take something. But I knew what he wanted to do.I just had my bath. I didn't open the door.How did it affect me? It's torturing me. If I tell my mum, I know she'll feel hurt and cry again. So, I kept it to myself.Leaving home I wanted to go as far as possible from home. How can I stay under the same roof with a monster? In Form 1, I applied to stay in my school's hostel. I succeeded. Then, I applied for matriculation. I succeeded. Applied for university, I succeeded again. I did those to stay away from home. Missing mumBut in all those years of separation, I've always missed my mum. She's the reason why I can still stand tall and go through shit.I was 26 years old when I finally told my mum about my dad's evil attempts. She thought my dad menyesal (regretted) that first event. My mum cried again. I told her not to. He is forgiven, I said.He killed his own daughterI can see my dad's regret. And I can see that he couldn't forgive himself for what he did. He killed his daughter. He killed my childhood. He killed my youth. He killed a father-daughter relationship. But that's between him and God. I'm done hating...COMMUNITY MESSAGE:If you suspect a child is being abused, or if you need help and have questions about child abuse, please contact: Social Welfare Department hotline: 1-800-88-3040WAO Helpline : 03 7956 3488 WCC: 04-228 0342Source credits: Syed AzmiPicture credits: news.com.au"
"Talking About Donald Trump's Hair Can Get You Sued USA: Gawker Media is facing lawsuit threat from the owner of Ivari International, which is alleged to have performed a costly hair restoration treatment on Republican presidential nominee Donald Trump. Gawker journalist, Ashley Feinberg, published an investigative piece last month, centred on Trump's hair and the shadowy circumstances around its upkeep. The article, ""Is Donald Trump's Hair a $60,000 Weave? A Gawker Investigation"", dealt with ""microcylinder intervention,"" and how Trump might have paid $60,000, plus constant maintenance fees, to Ivari to preserve his signature hairstyle.Charles J. Harder, who is representing Hulk Hogan, the retired wrestler, sent a letter to Gawker on behalf of a hair treatment clinic last week , in his invasion of privacy lawsuit against the media company, Harder said the article about Trump’s hair made “numerous false and defamatory statements about my clients”.Harder demanded that Gawker immediately remove the article, publish a public apology and full retraction. The letter also threatened legal action on behalf of the clinic, Ivari International, and Edward Ivari, stating that it exposed the media portal “to substantial monetary damages and punitive damages.”Source credits: The VergePicture credits: Jack Vincent"
"KLRCA Summer Academy- International Investment Law and Dispute Settlement KLRCA Summer Academy on International Investment Law and Dispute Settlement KLRCA is proud to host the first KLRCA Summer Academy on International Investment Law and Dispute Settlement in collaboration with Clifford Chance Singapore. This event is endorsed and supported by the Institute of Malaysian and International Studies (IKMAS).This intensive 5-day course will provide participants with the essential knowledge and practical skills to understand and deal with with investment disputes under bilateral and multilateral investment services. The course will also feature a moot court at the end of the week where participants will be able to apply what they have learnt.Ten (10) CPD points will be awarded by the Malaysian Bar Council for this event.Visit KLRCA for more details about the event.For enquiries and registration, contact the KLRCA Business Development team at +603 2271 1000 or e-mail events@klrca.org.Pic credits: KLRCA"
"Malaysia Needs Law To Fight Child Grooming Introduce new laws to prevent child groomingThe Royal Malaysian Police (PDRM) is urging the Government to introduce laws to fight child grooming to identify sexual predators who are preying on the young via the Internet and through the different online chat apps. Inspector-General of Police (IGP) Tan Sri Khalid Abu Bakar said the anti-grooming law was important for the police to act against these predators to stop them from exploiting and targeting underaged children. I hope the Government can seriously consider this. It will definitely help the police to nab these sexual predators."" - IGP Tan Sri Khalid Abu Bakar (The Star, June 15) Separately, Deputy Home Minister Datuk Nur Jazlan Mohamed said the ministry was looking into all aspects in its efforts to amend laws pertaining to nabbing sex offenders targeting the young, including the possibility of having a sex offenders' registry. The two were commenting on local English daily The Star's front-page report on sex predators in Malaysia who were targeting the underaged via mobile chat apps such as WeChat.The men who were highlighted in the report resorted to cyber sexual grooming by manipulating their young victims to gain their trust to engage in sexual activity. Bukit Aman Sexual Women and Child Investigations Division (D11) principal assistant director ACP Ong Chin Lan said the absence of anti-grooming laws in Malaysia meant that police could only charge those who sent messages with sexual innuendos under Section 354 of the Penal Code for outraging of modesty. The section provided a maximum jail imprisonment up to 10 years or a fine or whipping, or any two of such punishments, if convicted. Child grooming law and offencesGrooming happened when a perpetrator recruited a victim -- in this case, a child for sexual exploitation through different tactics.These groomers would first break down the child's defences and convince him or her that sexual activities in exchange for something was ""normal"". Let's take a look at grooming laws worldwide. Singapore Malaysia's next-door neighbour, Singapore, had laws to prosecute those who meet, communicate even through chat apps or travel with a minor on two or more occasions with intent to commit a sexual offence with the underaged child. Section 376E of the Penal Code provided a maximum three years' imprisonment for the offence. AustraliaUnder Section 474.26 and 474.27 of the Criminal Code Act, an individual could be charged with grooming if they communicated with another person posing as a minor (that included a police officer). It prohibited the use of carrier service (online chat apps) to communicate with an underaged child below 16 for the purpose of grooming. CanadaSection 172.1 (1) of the Criminal Code of Canada stipulated that it was an offence to lure a child by means of telecommunication. NetherlandsSection 248e of the Criminal Code stated that an individual who, by means of a computerised device or system, arranged to meet with someone below the age of 16, with the intention of engaging in lewd acts or of creating an image of a sexual act was liable to a maximum of two years' imprisonment or a fine. United Kingdom The Sexual Offences Act 2003 covered a wide range of child sexual offences, including Section 15 -- meeting a child following sexual grooming. Parents, do you have a clue what your child is doing online? If you are worried that your child is being groomed online, watch out for these symptoms -- self-harm, social withdrawal, aggression, depression and skipping school, among others. Find out more about grooming and effects of child grooming. Pic credit: www.watoday.com.au, www.express.co.uk, parentaltipsandadvice.blogspot.com"
"YOU Gave Them Permission To Harass You I just called to say..You have all experienced this before – the dreaded call from a telemarketer trying to promote something or other. Most people get such phone calls on an average of twice or even thrice a week.Depending on the mood you are in, you either give the caller five minutes of your time or brush him or her off gently. People generally just gripe about them and wonder how the callers got their contact details. The answer is simple – YOU basically gave them permission to call and bug you. What? How? When?Every time you sign some form or other, sometimes, even when you are opening a bank account – as what happened to a bank customer recently.In that instance, the permission to allow telemarketers to bug clients was couched as “I understand that the Bank endeavours to keep the Bank's customers informed of the latest marketing and promotional news from the Bank. I further understand that this information can be useful to the Bank's customers to manage customers' accounts as well as to keep customers informed of the Bank's latest products and offerings.” Sounds nice, doesn't it? It sounds innocent but it is not. It is the gateway to hordes of marketers waiting to pounce on you and relieve you of your money. You signed without reading Usually, the bank's counter staff will hand you a sheaf of documents and tell you to just sign “here”, “here” and “here”. Most people will just sign blindly without perusing what they are signing. After all, these are trusted and trustworthy institutions. But banks don't make money out of you having a savings account or even current account with them. Banks want you to spend money. Preferably on their credit cards, for example, when they can charge you hefty interest on late payments. Or unit trust offerings where their agents milk customers on fees. So, within days of you opening an account, the calls begin. The callers will try and offer some services or other. The callers always try to tell you it's advisable to have more than one, two or even three credit cards. Or insurance, or whatever.How else could this happen to you?Another example of how this can happen is when you are approached by people offering you freebies. Trust me, it's simply not worth it. You will be asked to provide your details and for a small inexpensive sample, you are literally inviting a lifetime of interruptions and inconveniences. The same applies for forms online. Don't just click, click and click. Beware of what it they are. If you see such clauses, make sure you opt out of receiving them. Otherwise, you will be wondering why people keep calling you and bothering you. And if you complain to the bank about the pesky calls, don't be surprised if some officer dig out your consent and wave it in your face. After all, it is contractual and binding … you allowed them to do so.Pic credit: dreamstime.com, thenextweb.com"
"49 Dead, 53 Wounded. Will The Killing Ever STOP? Response to the Orlando shootingsPeople worldwide have rallied, in a heartwarming gesture, in support for the victims and their families in the wake of the Orlando shootings that claimed the lives of 49 people.This has also sparked anew the never-ending debate on gun control in the USA. Alarming number of mass shootingsThe Obama administration has had to respond to 14 different mass shootings during his presidency. And that's just the ones the White House has determined to be major enough to warrant comment.There have been 173 mass shootings in the United States in 2016 alone. Gun violence in USANo other developed country has this problem to the extent that the United States does. There are cases like the Utoya massacre in Norway, or the Winnenden massacre in Germany, of course. Opponents of gun control measures love to point out that Norway and Germany have restrictive gun controls but still had mass shooting incidents.What makes the USA different?The difference between the USA and all others is its devotion to guns.Automatic guns, loaded with more firepower are freely accessible.The founding fathers who wrote the Second Amendment to the US Constitution, the right to bear arms, were wrong about slavery and they were wrong about this. Gun ownership is not and never should have been considered a right. You have a right to life. That should always come first.Hopefully, somehow, this tragedy will be a tipping point into action, and the voices of the victims will not be silenced by the voices of the wrong. Will things ever change?Pic credits: Washington PostSource credits: Whatstrending"
"Protect Sexual Abuse Victims In Court Enacting laws to protect sexual abuse victims in courtIn the wake of the horrific sexual abuse against 23 girls and boys committed by British paedophile Richard Huckle, the Malaysian Government is looking into measures to improve court proceedings and prosecution against offenders.Deputy Home Minister Nur Jazlan Mohamed said the move is part of the government's effort to impose harsher punishments against perpetrators.He explained that sexual abuse victims may be reluctant to appear in court due to stigma or shame.Maybe there are weaknesses in our system."" - Deputy Home Minister Nur Jazlan Mohamed He was commenting on the horrific rape campaign by Huckle, saying that victims may be ashamed to testify as a result of religious and cultural factors. To date, the Royal Malaysia Police have identified two victims, days after Huckle was given 22 life sentences by a London Court last week.The convicted paedophile pleaded guilty to 71 charges of sex abuse and rape to Malaysian and Cambodian babies and children, from 2006 to 2014. Victims' legal rights in court United States: Sexual crimes victims must testify in court if the case proceeds to trial. Sexual assault cases usually begin through a plea bargain whereby the prosecution and counsel can enter into an agreement, in which the offender has to plead guilty for a reduction in penalty. The victim is required to testify in criminal court if the plea bargain fails. There is, however, a rape shield law to protect the victim that limits the questions for the victim on their past sexual historyUnited Kingdom: Special measures are taken to allow victims to give evidence in court that include a pre-recorded interview. However, they are still subject to answering questions by the defendant's counsel and testify behind a screen that sets a barrier to prevent the victim from facing the defendant or through a live television link. Testifying in court: reliving the ordeal of rape again When a rape victim is compelled to testify in court while facing the alleged offender, it is traumatic as it is akin to reliving the ordeal again. The victim may feel violated by answering questions during cross-examination, while testifying in the witness box. Why is it distressing? When the victim is giving evidence in open court, they could be torn apart through a series of questions by the defence lawyer. Dealing with the after effects of rape is a nightmare. The physical hurts can often soon be mended, but it's the inner pain that people can't see that takes longest."" - (Post Traumatic Stress Disorder in Rape Survivors)When a victim is suffering from post traumatic stress disorder, giving evidence in court can further aggravate the situation. The Malaysian Government should speed up on the discussions to amend the existing law pertaining to rape and sexual crimes against adults and children.Pic credit: victimsofviolence, www.byrddavis.com"
"Why You Should Pay Your Maintenance Fees & Sinking Funds ***Article contributed by: PropSocial | Contact email: support@propsocial.my***If you live in a condominium or apartment, generally you are subject to paying Maintenance Fees and contributing to the Sinking Funds on a monthly basis. Whilst a pain to pay, these monthly payments are to the general benefit of the property and it’s residents, the maintenance fees being utilised for the upkeep of the common areas and facilities whilst the sinking funds are collected and held to be used to refurbish the property as and when needed. This will help maintain the aesthetics, cleanliness and functions of the property which will in turn help to maintain it’s value.Besides aiding in maintaining the property value, maintenance fees are also a requirement by law listed in The Strata Management Act 2013, compelling developers opting for strata titles to set up a Management Corporation to manage the common areas and facilities of a property (as legally the common areas are owned by the Development Company). The Management Corporation is then required to propose the amount and schedule the collection of the fees to be used for the upkeep of the property, whereupon it’s also meant to eventually set up a Joint Management Body comprised of the developers and owners of the property to jointly manage the the usage of the funds to manage and maintain the property.Upon it’s resolution, the Management Corporation is meant to elect owners of the property to form a Joint Management Committee which will then take over the responsibilities of the Joint Management Body and manage the property on behalf of its residents. Much like a company’s directors are tasked with the responsibility of managing the affairs of the company on behalf of the shareholders.Common reasons most owners give for not paying the maintenance fees include not using the facilities, not living in the property or not satisfied with the Management. This in turn leads to the Joint Management Body unable to accomplish their tasks and leads to a spiral of decline in the upkeep of the building, affecting everyone who lives there. Although not widely known though, owners of the property are entitled to question the Joint Management Body, view the accounts, vote on important issues concerning the property’s management and even vote the members of the Joint Management Body out of office if they are unsatisfied with their work.However, not paying the Maintenance Fees disqualifies owners of these rights and the Joint Management Body will also be eligible to bar residents from using the common areas and facilities, publish their names for other owners to see and impose interests/fines on all unpaid monies owed by the offender. Furthermore, under the Strata Management Regulations 2015 (under the Strata Management Act 2013), the failure to pay the maintenance fees can be considered a criminal offence which could lead to imposed fines, jail time or both.The idea of paying a monthly fee for living in your property is still a fairly new concept to most Malaysians, and those moving from a landed property into a high-rise would find it even more so. However, as a payee of the maintenance fees, owners also have the rights to know what they are paying for, transparency of the accounts and board decisions need to be open to the owners and the power to question and check the information is also another right. Joint Management Body members are subject to not only furnish all the information requested by the owners, but they are also meant to submit their accounts to the relevant government bodies as well, thus creating a system of check and balances to ensure that the Joint Management Bodies are not abusing their authority.Should any grievances arise from either party, an Emergency General Meeting could be called to take vote on the best course of action, or if unable to come to a consensus, the parties could seek judgment from the Tribunal for Housing and Strata Management (Tribunal Perumahan dan Pengurusan Strata or TPPS). In an effort to uphold the laws of the Strata Management Act 2013, the Urban Wellbeing, Housing and Local Government Ministry (a.k.a. Kementerian Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan or KPKT) will set up a special taskforce to enforce the Act.The payment of Maintenance Fees and contribution to Sinking Funds is mandatory and besides being charged interest for late payments by the Joint Management Body, defaulters could also face heavy fines and even jail time by the Government. It is therefore in everyone's best interest to timely pay the fees they owe and go through proper channels should there be discontent or disputes regarding the management of the property. So before buying a property, make sure you know how much you need to commit for the monthly Maintenance Fees and Sinking Funds so you do not end up in a jam. *For all the latest property information on Maintenance Fees and more, check out http://www.propsocial.com.my"
"TRUE ABUSE STORIES: Breaking The Silence After 30 Years In the shadows for 30 years I want to share with you my life story that I never told to people much. I see that you're quite disturbed with the pedo cases. So, let me tell you my story, as a victim. It depends if you want to share it. I've been in the shadows for 30 years. My family knows about this. I even told my ex-boyfriend. At the same time it was used it against me, with people saying ""U kecik kecik lagi dah suka kangkang depan orang (You always like to spread your legs in front of people since you were small)"", which really hurt me. When I tried to open up and trust a person, I had to close myself again. Hence, my personality is not really stable. I have trust issues. I work alone. Being a interpreter helps ,using another language that doesn't need common written or spoken words. They are feelings. How it all startedWhen we were very young, we were fortunate to have relatives staying within Taman Tun. So everyday, my mom would send us to our grandma or auntie's house before she went to work. When we started school, we would go over to grandma or auntie's for lunch and go to agama (religious education) school afterwards.At one time, my aunt, who was also working, couldn't keep up with the lunch hour, I guess I was too young to know the reason. And my grandma had to take care of our eldest uncle (Pak Long, or my grandma's eldest son) because he was diagnosed with breast cancer. Hence, my mom had to look for a babysitter. And she was living right next to our house. It was easy, very convenient. And the schedules were set. We would go there after school for lunch, and to get ready for agama school.I was 6 or 7, I couldn't recall. Those who went to that house was me, my brother and my youngest sister. My sister was still a baby and the babysitter (we called her makcik) really adores her. She treated her like her adopted daughter. My brother, 3 years younger than I, was the typical naughty boyIn that house lived a family. Makcik (the babysitter), pakcik (the husband), their son and daughter. I forgot their names. It was a lovely family. The daughter was in college or uni, while the son just finished SPM, I think? How innocence was lostSo, one day, makcik went out to the market or somewhere. I don't know. Honestly, my heart is beating super fast and I feel sick to my stomach when writing this story..My brother was asleep. It was after lunch. I was awake, either reading or watching TV. The son came to me and told me to follow him upstairs. We went to his parents' room. He told me to lie on the bed. Took off my underwear. And then my mind went blank.This happened to me whenever makcik was not around. God knows where she went to. I remembered one scene where he said ""Like a lollipop or ice cream"".Another scene was when he was sleeping on the floor, I was walking past him. He called me, and asked me to sleep next to him (covered in a blanket). Inside the blanket he took out his penis and rubbed it behind me or asked me to touch it.Another scene was of him licking me. I thought it was normal. By nature I'm a quiet person. So I didn't say anything. But my mind did questioned about the sexual acts. I thought it was normal. And I started to notice some sensitive parts of my body.Tried reaching outOne day, I went over to my aunt's place after school for lunch. The room downstairs had a white board. And I started to write some details of what that guy did to me. It was actually meant for my cousin. But because I was naive, and didn't think much of 'transparency' or 'privacy'. My aunt read them and told my mom, even though I specifically wrote there 'Jangan bagitau mak tau! (Don't tell mum!) Secret!'.After agama school that weekend, mom called me and she was not in a good mood. But that's how she was. Always angry and garang (fierce). She asked me questions and demanded for answers. ""Betul ke? Dia buat macam tu ke? (Was it true? He really did that?)"" ! felt trapped. And the way she questioned me was not very gentle. It was more like an interrogation. How could I answer? It was embarrassing enough.And that's when I developed this type of autism (as some may call it). I quickly put a wall around me, I stopped talking (me, being naturally shy and quiet, went on to another level of shyness and quietness), displaying no emotions or expressions at all. Just nothing, except for making sounds. I had and maybe still have, selective autism. I shut myself tight.The interrogation episode continued in makcik's house. The 'best' thing about this was, it was not a school day. Mom had to work. So we had to stay at makcik's house. The aftermathAfter talking to makcik and his son, both denied of course. Makcik kept bailing him out saying ""Mana ada. Mustahil la. Dia kecik lagi suka buat cerita (There no such thing. Impossible, she likes to make up stories)"" and things like that. At the same time, the guy kept looking at me and made eye contact as if saying ""Why? What did you say? Don't say anything"". And I had to look down. It was like the blame was all on me. It's my fault. I made stories. It wasn't true.When both my mom and makcik got satisfied with the denials, they left. I was alone in the kitchen with him. I was eating. He came to me, behind me, whispered in my ear, scolding me, 'Kenapa bagitau kat orang (Why did you tell people)? Lain kali jangan bagitau ok (Next time don't tell, ok?). Secret"" And he started to kiss my neck, like a lover. I gritted my teeth and how I wished I could throw the plate of rice right to his face. But, I didn't.Don't judge me, pleaseI think I'll stop here. The trauma is still there even if it's been 30 years. I don't know why I need to tell you this. Maybe because I've been keeping it for too long. Maybe because I want you to know from my point of view. I wished it didn't happen, but it did. It was a scary, mind-numbing experience, and I managed to forget about it. Until now. The scenes came back to me. Only that I don't remember much, just fragments. If you ever share this, I do hope people won't judge me. I've had my share when I was small. I've had enough. It affects my life.COMMUNITY MESSAGE:If you suspect a child is being abused, or if you need help and have questions about child abuse, please contact: Social Welfare Department hotline: 1-800-88-3040WAO Helpline : 03 7956 3488 WCC: 04-228 0342Pic credits: healing heart foundationSource credits: Syed Azmi Facebook"
"Ed Sheeran: The Odds Of Losing USD20 Million Lawsuit You're stealing my song!Singer-songwriter Ed Sheeran is facing a USD20 million lawsuit for allegedly ripping off X-Factor's Matt Cradle's ""Amazing"" track for his chart-topping ""Photograph"".What are the odds of him losing the lawsuit?He is not the first and neither will he be the last artist to face copyright lawsuits over songs.Let's look at some of the most famous cases and how they turned out: Abdel Halim Hafez and Baligh Hamdy vs Jay Z US rapper Jay Z was accused of stealing flute samples from the late Egyptian singer’s 1957 song, Khosara (What a Same) for his 1999 song, Big Pimpin. Hamdy’s heir sued Jay Z and producer Timbaland, claiming that the song was used without proper licences. He and Timbaland revealed they paid USD95,000 to EMI Music Arabia for the license in 2001 The judge ruled that the rapper was not liable for an “uncleared sample” that helped create the song. Marvin Gaye vs Robin Thicke Marvin Gaye’s family accused Robin Thicke, Pharrell Williams of copyright infringement of the “feel” and “sound” of Got to Give It Up and illegally sampling Funkadelic’s Sexy Ways Thicke and Williams counter-sued the Gaye family The Gaye family won USD7.4 million in damages for copyright infringement. Queen and David Bowie vs Vanilla Ice Vanilla Ice released Ice Ice Baby, the first hip hop single to top the US charts. Many spotted the similarities with Queen and Bowie's Under Pressure. He later admitted to sampling Under Pressure. Settled out of court and paid Queen and Bowie around USD4 million in royalties. Queen and David Bowie have since been given songwriting credit. Pic credits: telegraph.co.uk, splice.com, alarabiya.net, bet.com"
"BAN Google And YouTube In Indonesia, Says ICMI On, Tuesday, the Indonesian Muslim Intellectuals Association (ICMI) made a request to the government to block search engine Google and video streaming service Youtube in Indonesia, ICMI argued that pornography and violence are easily accessible on or through the two websites. ICMI Secretary General Jafar Hafsah (pic) wrote in a press release:These sites have been freely spreading pornographic and violent content without control. Google and YouTube have given a negative impact on Indonesia.Jafar argued that Google and YouTube have been selective in their content censorship.“Some time ago Google and YouTube successfully blocked, erased, and cracked down on news and videos on radicalism. Why is it that now Google and YouTube are unwilling to erase pornographic and violent content?” Jafar suggested an alternative and stated “I’m sure Indonesian innovators can create search engines like Google and YouTube that are better. With the government’s support, of course,” In response to this, The Ministry of Communications and Information said doing so would be against democratic principles.Ismail Cawidu, head of Public Relations at the Ministry of Communications and Information stated: As a democratic state, we can’t possibly block the sites. UUD 1945 Article 28 F guarantees freedom to information. We have to respect that.However, the Indonesian government has banned popular websites such as Reddit and Imgur.Ismail did not elaborate further on whether the same reasoning would be used to make Reddit, Imgur and other blocked websites available again in Indonesia.Pic credits: merdeka.comSource credits: jakarta coconuts"
"Ed Sheeran Entangled In USD$20 Million Lawsuit Singer-Songwriter Ed Sheeran's popular hit ""'Photograph' has just landed him in the middle of a copyright infringement lawsuit that could cost him USD$20 Million. More than 1/3 of his Forbes estimated net worth. According to the lawsuit, Ed Sheeran's hit shares a similar structure to the song ""Amazing"" which was written by Martin Harrington and Thomas Leonard in 2009 and released by former X-Factor winner Matt Cardle in 2012. The lawsuit initiated by Martin Harrington & Thomas Leonard states: ""Given the striking similarity between the chorus of Amazing and Photograph, (the) defendants knew when writing, publishing, recording, releasing, and distributing Photograph that they were infringing on a pre-existing musical composition."" The court documents include chorus cord structure comparisons between the two songs. Have a listen for yourselves - Ed Sheeran: Photograph Matt Cardle: Amazing (Image Credit: Belfast Telegraph)"
"TRUE ABUSE STORIES: How The Nightmare Began How the nightmare beganI don't have a brother. So when one of my male cousin, cousin A , took the effort to be close to me, I looked up to him as my own brother. But looking back, it was part of the ‘coaching’ process. He would buy me cookies, bring me for a ride on his motorcycle.We don't live together. But at one point he used to come over to see my grandmother, who was living with me and my parents.The first time he molested me, I was only 10. And he is around 20. It was around 7am, I woke up to him straddling my leg. “What are u doing?” I asked him. He panicked and ran.I was so scared. I didn't understand what had happened. But I knew it was not okay. So I told my grandma but not my parents. Why? Because I am closer to her and my father had an issue with cousin A’s family.I was under the impression that by telling my parents, things could get worse between our families and I need to keep it hush hush. Again, I was only 10 and I had to carry this burden all by myself. The family finds outThe molestation continued until, one day, my elder sister who was sleeping in my room caught him in action. I remembered crying a lot at that time. Partly because finally someone else knew. And partly, now I am going to cause problem to both families.One day we had a family meeting ( my grandma, me, my sis, my auntie who is A’s mother, and cousin A). He swore in front of everybody by the Al-Quran that he did no such thing. He said “If I want women, I would search for a hooker”. This killed me inside. But at least the molestation stopped. But this killed me, a girl 10/11 yrs old at that time.At one point I was told by a family member that he molested me “because he like u and have feelings for u”. Someone else would say “no wonder u have big breast because he touched yours” How sick is that? The wounds never healedI tried few times killing myself by taking a lot of panadol because I didn't have ‘better drugs’ to kill myself at that time. I am so angry at my family for not protecting me. Angry at myself because I’m unable to tell my parents. And now, 20 years later, I am still the injured girl inside with a lot of anger.Although I managed to be successful, there are days when the world is dark to me that I thought of killing myself. When I read other's stories, even as I write this 20 yrs later I could still cry. Until today, my family members who knew this and protected that guy never said sorry. I just wished at that time someone would bring me to police to make a report. I wished for that thousand times.Don't suffer in silenceLets educate and save other girls out there who are victimised in their own home but are silenced by those they love the most. I hope that girl could read this and pick up the phone to call the police or go to the nearest police station. I wish I did, but nobody told me I could at that time.I know you are contemplating whether to share all these stories, but believe me, i wished someone told me what to do at that time.COMMUNITY MESSAGE:If you suspect a child is being abused, or if you need help and have questions about child abuse, please contact: Social Welfare Department hotline: 1-800-88-3040WAO Helpline : 03 7956 3488 WCC: 04-228 0342 Pic credits: Sigmalive.comSource credits: Syed Azmi Facebook"
"Self-Driving Cars: More Trouble Than They're Worth? US laws on self-driving carsStates across the US are trying hard to decide on how to regulate self-driving cars. This results in incomplete and inconsistent law without really addressing the risks of new technology. The regulations deal mostly with physical safety and ignores privacy and cyber-security issues. Seven states and the District of Columbia have passed laws that address autonomous vehicles. However, they do not deal with data flows through connected cars. Limitations of the lawThese laws are limited in defining an autonomous vehicle, prescribing registration and notice requirements for putting them on the roads, and requiring the presence of a manual override and a licensed driver to control the vehicle.The new state laws are focused only on the driver-vehicle physical interface, without dealing with the logical interface between driver and car.A federal bill, introduced recently, only requires the Department of Transportation's government audit to determine whether that agency is capable of enacting consumer protections. It does nothing significant to regulate self-driving cars. Data privacy and security threats Self-driving cars implicate data-flow issues that are common to many technologies, resulting from constant real-time communications between users and their environments, and then between users and data collectors.This data can reveal valuable personal details, including geo-location and driving habits. Some sensors are so advanced that they can tell if a child is on board. Brokers have sought these data in order to entice parents to pull off the road for kid-friendly offers.As well as privacy issues there are the security threats. Researchers have shown that the vehicle controls are vulnerable to hacking attempts. This has raised the threats of hacker taking over braking or steering functions.Without any federal capacity to regulate data privacy and cyber-security, these issues are bound to fall between the gaps of state and federal rule making.Can we trust self-regulation?The physical side of self-driving cars is impressive enough. However, the informational side is revolutionary. For the time being, we have to trust those industries to regulate themselves.Source credits: The Guardian"
"Six Things To Remember When Attending Court Behaving in court You’ve read about our court system. How should you behave when you’re attending a court trial?Keep these pointers in mind when you’re about to attend a trial. 1. Dress yourself in a decent and appropriate manner. Don’t wear: sleeveless shirt shorts mini skirts (above knee-length) jeans slippers sunglasses or dark glasses leather jacket inappropriate t-shirts 2. Remove caps, helmet or headgear before entering the courtroom Only Muslim headscarves or Sikh turbans are allowed 3. Turn off your mobile phone or other electronic deviceYou don’t really want to know what will happen if your phone rings in the middle of a trial!4. NO weapons are allowed in the court.You must be insane to even think of doing that in the first place.5. Pay attention during court proceedings. Don’t: smoke, eat or drink sleep tease each other or laugh take photographs, tape recordings read newspapers or magazines while the court is in session. In other words, be SILENT and pay ATTENTION6. Be punctual! Be in the courtroom before each session of the court. Bow to the judge when you enter or leave the courtroom to show respect. Enter or leave at the appropriate time to avoid disturbance. NEVER show disrespect to the court or you’ll risk being found in contempt of court.Pic credits: kosmo, alizone, denik.cz, dailymail, pinterest"
"Paedophiles: Is Castration A Solution? People only act when something terrible happensIn the wake of a horrific gang rape and murder of a 14-year-old girl from Bengkulu, Sumatra, the Indonesian president, Joko Widodo signed a decree and raised a harsh punishment for paedophiles who prey on vulnerable children to chemical castration. These convicted child sex offenders are also required to wear an electronic monitoring device upon their release. Widodo tweeted, ""Penanganan kejahatan seksual pd anak harus dg cara luar biasa (loosely translated as child sex crimes must be handled in an extraordinary way) on his official Twitter account. What is chemical castration? Chemical castration is a sterilization procedure, done with drugs, to stop the offenders' sex drive by lowering their testosterone levels. This form of injection is mandatory for sex offenders in certain countries such as Poland, South Korea, Russia and several US states.In some other countries, this libido-reduction punishment is used in return for reduced sentences.Back in Indonesia, the new law, that is effective immediately upon the signing of the decree, still allows Indonesia's Parliament to overturn or revise such punishments.In the bill signed by Widodo, other forms of punishment include life imprisonment and a minimum of 20 years' jail for sexual violence against children. Our current rape law in Malaysia, under Section 376 (2) of the Penal Code, provides a minimum imprisonment of 10 years and a maximum 30 years, and also whipping. Child sex offenders and punishment in Malaysia The news and media broke stories of Britain's worst ever paedophiles, Richard Huckle, on a terrible Thursday last week.Malaysians were confused as to why Huckle's heinous acts against vulnerable children in the country went undetected for years. When bad events take over the country, Government agencies executed ""damage control"" with the police assuring the people that investigations were underway and politicians vowing to amend the Child Act 2001. Women, Family and Community Development Minister Rohani Abdul Karim said a sex offender registry would be formed under the amendments of the Act. Various quarters, including child rights advocate James Nayagam, also urged the Government to impose harsh and strict punishments against those who possess child pornography. “We should also issue a severe warning at the point of entering the country about our strong stance."" - James Nayagam (The Star, June 3rd)What about the laws in our country? Are Malaysia's laws against paedophiles tough enough to deter them from committing such heinous crimes? Read more here.What must Malaysia do to tackle paedophile crimes? The Indonesian Government took proactive measures by introducing chemical castration, to protect children from sexual crimes only after the brutal gang rape of a 14-year-old girl. Indonesia is the first Southeast Asian country to introduce and execute the drug injection punishment to quell sex drive among offenders. Should we follow their lead? Well, Malaysia does not necessarily need to follow suit by implementing this libido-reduction punishment against child sex offenders. However, seeing that the sexual attacks against children are getting worse, the Government should act now and stop dilly-dallying with excuses we have heard far too often - ""discussion is necessary, we need to take a lot of factors into consideration, we need to amend the Act step-by-step"". Sadists and potential paedophiles are preying on vulnerable children even as the Government is still discussing the matter.People need to act before something terrible happens.Pic credit: www.sayangsabah.com, www.freemalaysiatoday.com, www.bbc.co.uk,"
"Alarmingly High Road Deaths - What's Wrong? Over 100 road offences recorded within three hours operationsA total of 134 offences were recorded in a mere three-hour special joint operation conducted by several enforcement agencies along the Dengkil Rest and Service Area heading to ELITE Highway North Bound.Various summonses were issued by officers and personnel from the police, immigration, Puspakom, Land Public Transport Commission (SPAD), Road Transport Department (RTD) and National Anti-Drugs Agency (AADK) during the operation. Malay-Language daily Harian Metro reported that the police have issued 44 summonses for various offences, followed by 34 notices and 14 summonses by RTD, while AADK also ordered urine drug tests on eight individuals to detect the presence of drugs. Harian Metro, however, did not specify the types of offences recorded by the motorists. A slew of previous news reports indicated that among some of the common motoring offences are drunk driving, speeding, driving without a license, expired driving license and using a mobile phone when driving. Lowering the age limit for motorcycle licenceJust last month, Malaysian Institute of Road Safety (Miros) chairman Lee Lam Thye proposed to lower the age of motorcyclists obtaining a licence from 16 years to 15 years old. Lee said the move can help to prevent underage driving, which inadvertently led to motorcycle accidents on the road. He explained that the move enables the youths to undergo proper training before applying for a motorcycle license. Is this a feasible move? According to Miros, road death fatalities is increasing annually and is largely due to human error. How dangerous it is to drive in Malaysia? In 2014, the country ranked 20th in road deaths . This is an emerging trend and it is extremely dangerous, especially among the younger generations; they sms, whatsapp, or even take selfies while driving, this must be avoided at all cost."" - Road Safety Department (JKJR) director general Datuk Tam Weng Wah If most accidents occur as a result of human error, then the most effective method to curb or reduce crashes on the roads is by increasing road safety awareness through education and campaign. What is wrong with our drivers?We have all heard it before - raise public awareness and educate the drivers, but it seems not to be working.Where did it go wrong? Could it be because Malaysians are just bad drivers? Well, if it doesn't work, the answer is simple - Malaysian drivers are just ignorant and selfish. The only way to curb the alarmingly high road fatalities is through proper law enforcement and harsher punishments against offenders.Pic credit: www.thestar.com.my, www.keithlane.com"
"Child Matters: Reaching Epidemic Levels In Malaysia? Heartbreaking stories of child abuseThe stories of child maltreatment and child abuse will probably make your blood boil. That is a natural response. If it happens far many times, what is the police doing to reduce and stop such horrific child abuse cases? Bear in mind that the burden on prevention rest not only on the shoulders of the authorities but the society also plays an important role in ensuring a child's safety. Are the number of child abuse cases increasing?Each year, there are more new child abuse cases recorded by the authorities. According to the Ministry of Women, Family and Community Development, there were 3,257 child maltreatment cases in 2010, and the numbers surged in the subsequent years to 3,248 in 2011, 3,831 in 2012, and a whopping 4,119 in 2013. Is child abuse an epidemic in the country? Last year, DAP lawmaker Teo Nie Ching said the cases, increasing at an alarming rate, shows that something is wrong with the family institutions and society. In a separate news report, the-then Home Minister Dr Ahmad Zahid Hamidi said in the first three months of 2015, 571 child sexual abuses cases were brought to court.The numbers here are just the tip of the iceberg. Sexual assault cases often go unreported as the child victims are too afraid to tell due to numerous reasons, including the sexual predators' threat to hurt or kill them. But what is regarded as an epidemic level? If the cases are surging day-by-day, isn't that enough for the society and authorities to step up their efforts to prevent child maltreatment and child abuse? Child abuse and punishmentTwo months ago, the Parliament passed a bill to amend the Child Act 2001 with harsher penalties for ill-treatment, neglect, abandonment and exposure of children. Under Section 31 of the Act, a parent or a guardian who sexually abuses, abuses, neglects, abandons or exposes the child to physical or emotional injury, or allows him/her to be abused, neglected, abandoned, or exposed can be fined up to RM50,000 or up to 20 years jail, or both, if convicted. Section 32 of the Act provides up to RM20,000 fine or a maximum five years imprisonment, or both, for those convicted of allowing children to beg and receive alms. Child sex offenders are punishable under the Penal Code - Section 354 for use of criminal force with intent to outrage modesty, Section 376 for rape, and Section 377A for oral sex. Section 376 (2) provides an minimum imprisonment of 10 years and a maximum 30 years, and also whipping, if convicted of rape. What is the National Child Protection Policy?The Child Protection Policy under the Welfare Department is aimed at increasing awareness among various quarters on the importance of shared responsibility in ensuring the children's safety. Though the policy is in place, not much is known about its efforts and activities as there is little information on its success stories and action plans. As the Child Act has been amended recently and a National Child Protection Policy is in place to protect the children's rights, how effective are these frameworks in addressing the pressing issue of child abuse? Find out more about the policy here. Formation of the Children's Cyber Sexual Investigation team Child molestation or child sexual abuse can be difficult to identify as shame may prevent the victims from raising the matter and it is harder to detect among young children, as some are incapable of remembering and divulging the details.With advances in technology, it improved rapid connectivity and brought a different set of challenges for society and the authorities.Foreign paedophiles can ""reach"" Malaysian soil with just a click on their computers at home. To address this, the Royal Malaysian Police (PDRM) has established a special investigation team to handle cases involving foreign paedophiles who prey on vulnerable Malaysian kids online from various platforms. The Inspector-General of Police (IGP) Khalid Abu Bakar revealed that foreign paedophile rings resort to cyber sexual grooming to convince kids to record videos for them to satisfy their desires. He said these recruiters are from the United States and United Kingdom.The epidemic is real and, now, authorities have their hands full as they have to tackle not only foreign paedophiles and also to monitor these predators who are lurking around the children in the country. 'Britain's worst paedophile' Richard Huckle raped and sexually abused dozens of children in our country, undetected by the police for years.What can we do to help Huckle's victims and hundreds other child maltreatment and abuse victims? The least we can do is to provide support, stop judging and show genuine concern. Our children are our future so teach them well, and most importantly, protect them. Pic credit: www.looptt.com, says.com, www.copmi.net.au, www.mapsofindia.com"
"Disturbing Details Of Huckle's Abuse: Are We Keeping The Kids Safe? Surfing the internet today is depressingThe news feed today is filled with updates of none other than one of Britain's worst ever paedophiles, Richard Huckle. Chances are, you've already read too much of his horrific abuse of children on Malaysian soil, from 2006 to 2014.The horrific activities of this 30-year-old paedophile against vulnerable children in poor areas in Kuala Lumpur, went undetected for eight years. There have been too many questions running through everyone's mind now. Why was he undetected?Why did these disturbing activities go undetected for so long? He masqueraded as an English teacher in Sunday schools. Why didn't they conduct a background check on Huckle before allowing him to have close contact and care for these children?We think we have the answers. It's simple - when bad things happen, we just point our fingers at someone else and let them shoulder the blame. The question we need to ask ourselves is whether we know these churches and how they rope in volunteers to teach English to kids from poor communities. Netizens, perhaps, would ask - didn't his friends or the churches notice something's wrong with Huckle? AskLegal received this further statement from one of Huckle's Malaysian friends today:Makes me wonder, what if? What if we've known much sooner? He could have been nipped in the bud before causing this damage. Were we just too careless to notice anything odd about him? These questions really haunt me ever since I found out- (Identity withheld)There is no answer to this.A paedophile would not blatantly tell or show you of their fetishes and they would try hard to put up a facade and hide behind their masks. He may be the school teacher, bus driver or youth worker.Here are the warning signs. Stop the blame gameWhat we do know are stories fed to us by the media and we start developing our own opinions. Let's stop the blame game. That is the least we can do.Child sexual abuse is part and parcel of the bigger problem in our society - child maltreatment and abuse. We need to do something to prevent these horrific abuse from happening again. No specific law on paedophilia and child pornographyThe Government should take the lead to address child pornography by introducing laws and stricter punishments against offenders.Currently there are no specific laws covering the issue of child pornography. Mere possession of child pornography itself may not be punishable under Malaysian law.Section 292 of the Penal Code only deals with sale and distribution of obscene material.Section 233 of the Communications and Multimedia Act deals with the making, creating and transmitting of such material via the internet.Be on alert!Society, on the other hand, should be alert and keep an eye of our surroundings. If you suspect that a child is a victim of abuse, call the authorities.The first response to the child disclosing the sexual abuse is important in helping the child heal. The important thing is that you express yourself with love and sincerity. Hearing these sentiments may mean a great deal to your child. -WAO Reflect on ourselves - are we doing enough to protect the children from harm?Pic credit: haileyfox.wordpress.com"
"Child Matters: What Is Child Abuse? The child abuse phenomenonChild abuse is not a new phenomenon in Malaysia but yet, the number of horrific cases recorded is on the rise. According to statistics released by the Social Welfare Department, there is a consistent uphill trend in child abuse with 3, 831 cases in 2012, compared to 3,428 cases in 2011, which is equivalent to an average of 9 cases daily recorded in Malaysia. What is child abuse?Child abuse refers to serious violation or infringement of a child's right - a person under the age of 18, including physical, emotional or sexual maltreatment and exploitation. There are several types of child abuse according to the Child Act 2001: Neglect - Failure to provide basic needs and support of physical, emotional and mental development which include health, education, nutrition, that exposes the minor to all forms of harm Physical abuse - A parent or guardian causes physical injury that results in bruises, burns, lifelong injury or death to a child due to intentional use of agents to the body of a child Sexual abuse - An adult engages in a sexual act or inappropriate sexual behaviour such as exploitation, child prostitution, penetration, fondling or oral sex, to satisfy the desires of the said adult. Emotional abuse - A parent or guardian emotionally abuse a minor without being violent but causes harm to a child's mental and social development such as terrorizing, humiliation and isolation “Every time when I leave the house I feel very scared.”- Kelly (Child abuse: A victim speaks out, The Star, 21 August 2013) Effects of child abuse and neglectThe effects of domestic violence and neglect on children may vary due to a variety of factors such as the types and severity of maltreatment (neglect, physical abuse, and/or sexual abuse) as well as the relationship between the perpetrator and the child. Among the consequences of abuse and neglect on a child's health are: Developmental and psychological impact Depression Personality disorder Anxiety Cognitive difficulties Social difficulties Behavioural effects Drug abuse Risky sexual behaviour Suicide/Self-harm Physical effects Bruises Swelling Sexually-transmitted diseases Abrasions Malnourished Read more on the effects of domestic violence on children here: Children from violent families may be subjected to abuse or neglect. A study has shown that an estimated 30% - 40% of children of women who are abused are abused themselves. Child witnesses of violence who were also physically or sexually abused have been seen to exhibit more behavioural problems than non-abused child witnesses. - WAO Child abuse in Malaysia We Malaysians are caring and loving people, aren't we? Yet, we read about horrific and severe child abuse cases in the local media. Is child abuse an epidemic in Malaysia? Can the statistics and its breakdown enlighten us about this uphill trends in Malaysia? What do we know about the situation in the country and how can we end this child cruelty? And what do you know about the Child Act 2001 and the National Child Protection Policy? We will discuss these in the next and final part of this Child Matters series. If you suspect a child is being abused, or if you need help and have questions about child abuse, please contact: Social Welfare Department hotline: 1-800-88-3040 WAO Helpline : 03 7956 3488 Pic credit: www.dosomething.org, www.emaze.com"
"10 Things To Know When Signing A Contract Should I sign on the dotted line? You’re looking to get that laptop, mobile network subscription service or even that country club membership. Exciting, no?However, do you know what exactly you are committing yourself to?Consider these pointers before you sign any contract. 1. Read the contract carefullyAny agreements or claims made by the salesperson must be written into the contract. Don’t simply rely on verbal guarantees. Get everything in black and white.2. Identify the parties to the contractThere are usually two parties to a contract, the buyer and the seller. Make sure the contract accurately identifies the parties. 3. Understand your rights and obligations in the contractIdentify what rights you have in the contract and how you can enforce them.Understand your obligations in the contract and the consequences of breaching them.4. Find out what remedies the contract provide for breachThe contract should state what remedies are available for you if the other party breaches the contract.5. Look out for unilateral amendment clauses. That phrase can be translated into: ""We can change the terms of this contract at any time."" 6. Review the early termination fees, if there’s any. With some companies, if you want to end the relationship before the contract is over, you'll have to pay a penalty.Handphone network providers are well-known for this practice.You may accept the terms if the company's pricing or service is reasonable, and you don't think you'll want to terminate the contract early. It’s still worth reviewing just how much the termination fee is and weighing the possibility that you may want or need to break the contract at some point.7. Watch out for liability waivers.These are common in contracts in which there is risk involved in an activity you or a family member is about to participate in. If you have children who have gone to a skating rink or laser tag facility, you have probably signed one of these.8. Understand everything in the contractAsk questions and get advice from someone knowledgeable, such as a lawyer, if you don’t understand the terms. Always read the fine print. It is also part of the contract. 9. Remember, you are responsible for the contractA signed contract is a legal document, so you’ll be bound by it. The general rule is contract cannot be changed or broken unless both parties agree to it. 10. Keep a copy of the contract once it’s signedKeep it for future reference. You might need it to file a complaint if you have a problem later on.Follow these simple pointers to avoid getting into a bad deal!Picture credits: tearaway.co.nz"
"Survival Guide To Court: Episode 10- Court Terms Confused about the terms used in court?Let's find out what they mean in the final episode of this series:Women's Centre for Change is a non-profit , tax exempt organisation dedicated to the ending violence against women and children and promotion of gender equality. WCC provides free counselling and shelter services, conduct outreach and training, advocates for policy and legal reforms.For further information, contact WCC @ 04-228 0342Email wcc@wccpenang.orgWebsite: www.wccpenang.orgFacebook: WCC PenangTo watch the previous episodes, just follow these links:Episode 1Episode 2Episode 3Episode 4Episode 5Episode 6Episode 7Episode 8Episode 9 Picture credits: chinlingo.com"
"Cinema Is Possible In Kelantan, Only If It's Not Too Dark The fear over HududThe fear began when PAS expressed its intention to debate the hudud Bill in Parliament because essentially, it will affect Malaysia's Federal Constitution. If, fundamentally, the PAS proposal to amend the Federal Constitution is only to give way for PAS state government to implement hudud law in Kelantan, there is nothing to fear, or is there?Today, the mere mention of hudud is mired with not only fear, but also confusion, skepticism and insecurities. PAS has been pushing this controversial Islamic criminal laws to allow amendments to Syariah Courts (Criminal Jurisdiction) Act 1965 that in return, Syariah courts can mete out harsh hudud punishments such as amputation of hands and stoning. But do we need two sets of criminal laws in one system? Segregation in Malaysia Malaysia already has far too many segregation. First, we have Rayani Air, banking on its Syariah-compliant differentiation to appeal to other passengers. But the airline is on its way to closure, after operating for slightly more than three months.So what's the latest in line? Cinemas. The segregation has spread to other industries.'Syariah Compliant' cinema in KelantanIn April this year, KB Mall in Kelantan announced on its official Facebook account, that Paragon Cinemas is expected to begin operations in July. Utusan Malaysia quoted Kelantan Executive Councillor Abdul Fattah Mahmood stating that they have not received application from any operators over the matter.The daily also reported that Kelantan PAS-led state government welcomes any operator to set up cinemas in the state but it must adhere to their pre-set conditions. The conditions, among others, included separate seating for men and women, cinemas should not be too dark as some lights must be switched on, and operations are not allowed during Maghrib prayers and Ramadan month.If screenings are not permissible during Maghrib prayers, the last afternoon show must be scheduled slightly after teatime since movies generally run for 1 hour and 30 minutes.From a business perspective, how can they sustain the cinema operations if they were to close during Ramadan month? The fasting month will begin in June, so a wise ""business decision"" is to postpone the official opening of Paragon Cinemas, well, if there is one. Malaysia and modernity The country has been seen over the decades as a beacon of secular, modern and multicultural Islamic country. However, over the years, brouhahas have erupted, putting Malaysia in the limelight with many quarters questioning the rise of ""extreme limits"". Malaysians can definitely recall the outcry several years ago when hair salon operators in Kota Bharu were fined by the municipal council for styling a man's hair.Article 3 of the Federal Constitution provides that Islam is the religion of the Federation, but other religions may be practised in peace and harmony in any part of the Federation.What happened to the hair salon operators suggest that non-Muslims somehow, in one way or another, would be affected by the laws implemented in Kelantan.Is Malaysia still considered a plural society, with limitations being imposed against non-Muslims? With the continuous debate over hudud, one wonders whether there would be any ""spillover"" effect once the Islamic law is approved by the Parliament.Pic credit: KB Mall Facebook page"
"Unhappy With Your Bank? FMB Is Here To Help Who can help financial consumers? Homebuyers have the Homebuyer Claims Tribunal for problems with your developer.General consumers have the Consumer Claims Tribunal for problems with goods or services.But, what if someone has banking or insurance problems? This is where the Financial Mediation Bureau (FMB) steps in to help The FMB’s roleIt is an independent, non-profit body set up under the Bank Negara’s initiative to settle disputes that may arise between consumers and their financial service providers (FSP) through mediators.Currently the FMB is in the process of becoming a fully-fledged operator of the Financial Ombudsman Scheme, which will give it jurisdiction over a wider scope of disputes and awards.FMB provides free of charge service to financial consumers.Is FMB’s decision binding?The FMB’s decision only binds the FSP, not the consumer and they cannot refuse to comply with the decision.Non-compliance will cause the FSP to be reported to Bank Negara- Jeremy Lee, CEO, Financial Mediation BureauIf the complainant is unhappy with the FMB’s decision he is free to pursue legal action against the financial institution.All the FMB’s decisions are justified based on the evidence submitted by the complainants and FSPs- Jeremy Lee Complaint proceduresBefore making a complaint with FMB, the complainant is expected to settle the problem with the bank or insurance company.If the complainant is unsatisfied with the results, he has the option to submit his case to FMB, within 6 months of receiving the bank or financial institution’s final decision.Here are several ways on how a complaint can be submitted to FMB.What kind of complaints are out of FMB’s jurisdiction?The FMB will not entertain these complaints: General pricing, product policies or services (types or quality) Credit decisions (approval, rejection and rescheduling of loans) Fraud cases exceeding RM25,000 Cases which are time barred for more than 6 years Cases that have been referred to the court, tribunal or for arbitration. These are the listings on areas covered by FMB’s jurisdiction.Contacting FMBThe FMB can be reached at :Level 14, Main BlockMenara Takaful MalaysiaNo. 4, Jalan Sultan Sulaiman50000 Kuala LumpurTel : 03-2272 2811 Fax : 03-2272 1577Email: enquiry@fmb.org.myPicture credits: Jeremy Lee"
"PDRM - In The Line Of Fire Dying to serve the public ... Polis Di-Raja Malaysia How often have we noticed people lambasting the police force (PDRM) on social media? If the independent media portal carried an article on some of the PDRM's wrongdoings, you will see a barrage of comments running the PDRM down.We hear people lamenting about police officers being incapable and that the PDRM only serves the Federal Government's bidding.However, the public does not realise that, in fact, there are many officers in uniform who risk their lives in trying to protect the public. These officers are unknown to most. They have laid down down their lives to ensure that we can sleep in safety. For whom the bell tolls Do we know how many PDRM officers have died in the line of duty? Here is a list of some recent cases:Insp Margaret Tagum Anak Goen, 32, deceased (06.09.2015)While on duty during Ops Roda/Rempit at Km 58, Batu Pahat-Mersing Road, Insp Margaret Tagum was killed when she was run over by a group of bikers heading from Mersing towards Kluang in an attempt to escape the roadblock. She suffered a broken arm, hip bone and leg. Insp Margaret Tagum later died in Enche Besar Hajjah Khalsom Hospital. The biker involved, a 17 years old teenager, was arrested soon after he fell from his motorcycle, while six of his friends, aged between 14 and 20 years, who had fled the scene, were arrested later.Cpl Mohd Razkan Bin Seran, 32, deceased (04.04.2015)The bodyguard of Rompin Member of Parliament, Tan Sri Jamaluddin Jarjis, was killed when a Eurocopter AS3655N2 Dauphin (Registration Number 9M-1GB) crashed into a jungle along Jalan Sungai Lalang in Kampung Pasir Baru, Semenyih, Kajang, while flying from Pahang to Subang.Cpl Ab Rajah Bin Jamuan, 32, deceased (13.07.2014)Armed gunmen, believed to be Sulu or Abu Sayyaf terrorists, numbering less than eight, used heavy arms to ambush marine police officers. This resulted in Cpl Ab Rajah being killed in action, while his colleague, MPC Zakiah Aleip, went missing and was believed to have been kidnapped.L/Cpl Mohd Azwan Bin Abdullah, 25, deceased (26.05.2014)L/Cpl Mohd Azwan and his colleague from the Kerian police motorcycle patrol unit had acted on a public tip-off that robbers had held up the driver of a cigarette van, before emptying its contents into a Toyota Wish, at the 10th mile Parit Buntar-Alor Pongsu, Perak. They were trailing the car when L/Cpl Mohd Azwan's motorcycle was rammed from the rear by a Honda Civic driven by the robbers’ accomplice. The impact resulted in L/Cpl Mohd Azwan being flung off the motorcycle and into a drain. He died on the spot.L/Cpl Raja Aizam Bin Raja Mohd, 53, deceased (03.04.2014)Stabbed to death by three Indonesians who were attempting to steal his weapon. He and his partner, Cpl Mohd Aidil Bin Mustafa, 29, were performing routine patrol the area at Taman Sentosa, Klang when they noticed several individuals behaving in a suspicious manner. They proceeded to search these individuals when one of them grabbed his gun and tried to fire at him. Fortunately, the pistol jammed. But, in the ensuing tussle Cpl Raja Aizam was stabbed with an unknown weapon.Cpl Zal-Azri Bin Abd Somad, 31, deceased (23.09.2013)Killed in a struggle to detain a 17-year-old suspect in an operation, code-named “Ops Lejang”, at Taman Teknologi Cheng, Malacca. The group, led by Inspector Zainal Mohyan, arrived at the scene after receiving information that three people aged 17 to 23 years were trying to steal scrap metal from a factory. An incident occurred at around 8am when Cpl Zal-Azri pursued the suspect who attempted to flee, during which a struggle broke out between the two men. During the struggle, the suspect struck Cpl Zal-Azri several times on the head with a brick before escaping. Cpl Zal-Azri died on the spot.The question is ... how many of us go to work daily, with a real risk of not coming home at the end of the day?"
"Survival Guide To Court: Episode 9- After The Trial The trial's over!What happens next? Find out in this video:Women's Centre for Change is a non-profit , tax exempt organisation dedicated to the ending violence against women and children and promotion of gender equality. WCC provides free counselling and shelter services, conduct outreach and training, advocates for policy and legal reforms.For further information, contact WCC @ 04-228 0342Email wcc@wccpenang.orgWebsite: www.wccpenang.orgFacebook: WCC PenangTo watch the previous episodes, just follow these links:Episode 1Episode 2Episode 3Episode 4Episode 5Episode 6Episode 7Episode 8Picture credits: theguardian.com"
"Unhappy With Government Bodies? Go to PCB! What is the Public Complaints Bureau? The Public Complaints Bureau (PCB), under the Prime Minister’s Department, was set up to handle public complaints made by the public towards any government administrative action that are considered as: unjust not in accordance with the existing laws and regulations abuse of power maladministration by Government agencies What can you complain about? These are but a few examples of the complaints you can lodge with PCB: Inland Revenue Board (IRB) not paying back income tax credit balance within 2 months. SOCSO failing to pay compensation Lack of public amenities Public officers taking bribes Misconduct of public servants Failure of government agencies to adhere to set procedures PCB can investigate all complaints on government administration except: Government policies and matters that are under the authority of Public Accounts Committee, Malaysian Anti-Corruption Commission (MACC) and Legal Aid Department Family disputes/personal problems Civil claim involving individual /company Complaints against private bodies/companies not associated with the Government How do you lodge a complaint? Here are several ways to make a complaint: File online at:www.pcb.gov.my Email: aduan@pcb.gov.my Telephone:03-8000 8000 Fax:03-8888 7778 Send an SMS to 15888: BPA ADUAN (your complaint) and send to 15888 Send a letter (stamps not required) to: Director General, Public Complaints Bureau, Prime Minister's Department, P.O. Box 9000 62502 Putrajaya Or: PCB's State Offices Come to PCB's counter in: Designated districts under the Mobile Complaints Counter (MCC), Integrated Mobile Complaints Counter (IMCC), and MESRA Rakyat Program as announced through PCB's Portal and the mass media. Walk in to:PCB's Head Office or PCB's State Offices PCB Kiosks Remember, it’s way better to channel your complaints to the appropriate body, rather than just constantly whining about them on Facebook or Twitter! Pic credits: borneopost"
"Rape and Sexual Assault: Does The Malaysian Rape Law Need Amendment? Proposed amendment to rape lawIn this final part about rape and sexual assaults in the country, we will examine the proposed amendments by The Joint Action Group for Gender Equality (JAG) to laws concerning rape and why it needs changes. What is considered rape under the Malaysia Penal Code? We have briefly looked into the explanation of rape laws in the first part of the series. Let's take a quick recap. Rape happens when a man forcefully inserts his penis into a female's private parts, without her permission. It is also considered rape in certain circumstances, even when the man obtains her consent such as by way of putting her in fear of death or hurt and when the consent is obtained by abusing his position and authority over the woman.However, there are a few exceptions to this rape context under Section 375 of the Penal Code:Exception – Sexual intercourse by a man with his own wife by a marriage which is valid under any written law for the time being in force or is recognized in the Federation as valid, is not rape.Explanation 1—A woman—(a) living separately from her husband under a decree of judicial separation or a decree nisi not made absolute; or(b) who has obtained an injunction restraining her husband from having sexual intercourse with her, shall be deemed not to be his wife for the purposes of this section. Explanation 2—A Muslim woman living separately from her husband during the period of ‘iddah, which shall be calculated in accordance with Hukum Syara’, shall be deemed not to be his wife for the purposes of this section.”Following the latest amendments to the Penal Code, Section 375A states a husband who causes hurt or fear of death or hurt to his wife in an attempt to have sexual intercourse can be sentenced up to five years in jail.Section 375 (g) states it is an offence to have sexual intercourse with a girl who is below 16, with or without her consent. Those who are convicted of rape can be sentenced to not less than 10 years to a maximum of 30 years and also whipping as stipulated under Section 376 of the same act. Why it need changesDespite the amended section, the Penal Code still does not criminalise marital rape. Forced sexual intercourse with the wife, even when she has rejected the sexual advances, is not regarded as rape unless the husband causes injury when intending to have sexual intercourse.In the ""finger-rape"" case where Sarawakian Bunya Jalong, 57 (at the time the act was committed), was acquitted as there was no penile penetration since the accused used his fingers. The definition of rape in Malaysia states that there must be penetration by penis into vagina to secure a rape conviction against the sexual offender. There are, however, sections defining sexual connection by object and outrages on decency. Section 377CA stipulates an individual who engages in a sexual connection with another by the means of object into the vagina or anus without consent is liable to not less than five years' imprisonment but not more than 30 years and also whipping. The only exception to this section is when the insertion of object is done for medical or enforcement purposes. Meanwhile, Section 377D of the same act provides up to two years in jail if convicted of outrages on decency. In other words, the insertion of objects into the private parts does not constitute rape. The United Kingdom Sexual Offences Act 2003 has a similar definition to the Malaysia Penal Code: A person (A) commits an offence if—(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis(b) B does not consent to the penetration, and(c) A does not reasonably believe that B consents.Unlike the Malaysian Penal Code, the United States Department of Justice defined rape as: The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” The brutality of the act by way of introducing sexual objects including sex toys without the consent of another can be equally traumatising to the victims.Hence, there is a need to amend the rape laws concerning the insertion of foreign object into the vagina or anus of an individual.Currently, the law also does not deal with rape and sexual violence against men.Rare as it is, rape and sexual assaults can happen to anyone regardless of the age, sexual orientation or gender. That means, it will happen to men too. Therefore, there is a need to amend the existing rape laws to also protect men.Proposed amendments to the Penal Code on rape lawsThe Joint Action Group for Gender Equality (JAG) has long called upon the government to amend the existing rape laws stipulated under the Penal Code. JAG is a coalition of 12 non-governmental organisations (NGOs) that work together in fighting for gender equality. Among some of the NGOs are All Women’s Action Society (AWAM), Justice for Sisters, Sarawak Women for Women Society (SWWS), Sisters in Islam (SIS), Women’s Aid Organisation (WAO), Women’s Centre for Change (WCC) and Tenaganita.The coalition urged the government to delete the exception, explanation 1 and 2 under Section 375, as well as Section 375A (see above).JAG said the government should do away with Section 375A because it criminalises “hurt or fear of death or hurt to his wife”, not the act of non-consensual sexual intercourse. The punishment for section 375A is imprisonment for a term which may extend to five years, much lower than the punishment for rape which is imprisonment for a term which may extend to twenty years. The coalition further urged the government to widen the definition of rape under section 375 of the Penal Code to include rape with an object. They proposed to replace the current explanation of rape under Section 375 to:""Penetration of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, is sufficient to constitute the sexual intercourse necessary to the offense of rape.”Do you echo the same sentiments as JAG? And what do you think of the non-existence rape laws concerning male victims?Pic credit: www.naijahousewives.com, hornbillunleashed.wordpress.com, www.thunderclap.it"
"What Can You Do If You Face Sexual Harassment At Work? What Is Sexual Harassment? Sexual harassment means unwanted, unwelcome, or unsolicited sexual conduct. This conduct includes inappropriate and offensive requests for sexual favours.Most victims are generally women, although there are a small number of cases where men have been experienced sexual harassment.Sexual harassment normally occurs at the workplace.“Sexual Harassment is a violation of a person's right and is not a small matter. Sexual Harassment is any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment: Code of Practice On The Prevention and Eradication of Sexual Harassment In The Workplace- Ministry of Human Resources, 1999” What are examples of sexual harrassment? These are some examples of sexual harassment: unwanted touching, stroking or brushing up against a person, hugging, kissing, fondling and sexual assault comments about body, leering, wolf whistling, cat calls, sexual insults or persistent pestering for a date workplace blackmail by suggestions that you’ll only be promoted after giving sexual favours display and circulation of pornographic pictures, drawing sex-based sketches or writing sex-based letters, sexual exposure What are the effects of experiencing sexual harassment? Sexual harrassment can cause ill health: emotionally- it can cause the victim to feel depression, helplessness, fear , demotivation and loss of control physically- victims can experience symptoms such as headaches, sleep disturbances, eating disorder, nausea, weight loss or gain, crying spells. What can you do? First of all, speak up. Tell the person firmly you want it to STOP that his behaviour is unacceptable.If he persists in harrassing you, talk to someone who can help you, such as your colleagues or superior. Record the details of the incidents. This can help you to build a case against the harraser.If your own manager or supervisor is harassing you, report it to a more senior person.Make a formal complaint in writingRemember, you’re not alone Get some emotional support by talking to someone you can trust, be it your friends or family members.Please, don’t suffer in silence. Remember, sexual harassment is totally unacceptable in any circumstances.Contact these organisations if you need help:Women's Aid Organisation (WAO) :+603 7956 3488Women's Centre for Change (WCC): +604 228 0342All Women's Action Society (AWAM): +603 7877 4221"
"Freedom of Information In Penang Is A Mockery Picture credit: themalaymailonline.comBN MP Datuk Jahara Hamid has questioned the Freedom of Information (FOI) legislation that was enacted by the State Government. Datuk Jahara's gripe is that the enactment does not live up to its name. “If you are serious with freedom of information, make sure you do what the literal meaning of the act says. Is this FOI or Akta Menyekat Maklumat (Block Information Act).” - Datuk Jahara HamidAs part of the process to obtain information the applicant has to execute a statutory declaration that states, amongst others: they would not reveal the contents of the document to anyone else it is for personal use only Pulau Betong assemblyman, Muhammad Farid Saad commented that the provisions are 'troubling'.The whole notion of FOI is to ensure that there is transparency as to how a government conducts its affairs. The citizen is entitled to have information.What is the use of information if it's only for the application's personal knowledge?The move to introduce FOI legislation was hailed by many NGOs as a very bold move as Barisan National has failed to allow the free flow of information but in reality, the FOI legislation has no real bite to it.In the past, AskLegal has covered issues that have arisen with the FOI legislation, introduced by the Pakatan Government in Penang and Selangor. The icing on the cake looks great but the cake is still your cheap sponge cake.Freedom of Information Enactment - 4 years down the road"
"Survival Guide To Court: Episode 8- Making A Victim Impact Statement How do you make a victim impact statement in court?Let's find out here in Episode 8:Women's Centre for Change is a non-profit , tax exempt organisation dedicated to the ending violence against women and children and promotion of gender equality. WCC provides free counselling and shelter services, conduct outreach and training, advocates for policy and legal reforms.For further information, contact WCC @ 04-228 0342Email wcc@wccpenang.orgWebsite: www.wccpenang.orgFacebook: WCC PenangTo watch the previous episodes, just follow these links:Episode 1Episode 2Episode 3Episode 4Episode 5Episode 6Episode 7Picture credits: Reuters"
"Rape and Sexual Assault: Rape Cases and Sexual Violence Statistics In Malaysia Sexual violence statistics There is a whopping number of 37, 263 rape cases, involving girls as young as six, reported from 2000 until 2015. This which means there is an average of eight rape cases reported daily in the country, statistics based on a Parliamentary reply to Batu Kawan MP Kasthuri Patto last year. The shocking statistics showed more than half of the total rape cases were committed against minors between the ages of 13 and 15, with up to 16, 265 victims and followed closely behind by 10, 289 victims over the age of 18. Out of the 37,263 cases, 2,854 victims were sodomized while 4,739 were incest-rape cases. Rape is often debated in the Parliament, with various quarters calling for the government to amend the existing rape laws. In this second-part of a three-part series about rape and sexual assaults in the country, we will look into past rape cases that have shocked the nation. Noor Suzaily Mukhtar: Never made it homeSixteen years ago, on a fateful working day, 24-year-old computer engineer Noor Suzaily Mukhtar took a bus from Kuala Lumpur to her office in Klang. However, she never made it home. The bus driver, Hanafi Mat Hassan, then 38, raped and strangled her after dropping off the last passenger.Her naked body was later tossed out of the vehicle. During trial, a forensic pathologist told the High Court that there were 44 external injuries on her body, including abrasions around the vaginal area. In 2006, the Federal Court dismissed his appeal and upheld his death sentence. Nurul Huda Gani: The crime near her doorstepIn January 2004, Nurul Huda Abdul Gani, 10, was found naked and barely alive in a toilet near a TNB guardhouse. The little girl, who was gang-raped and sodomized, was later pronounced dead on arrival at a clinic not long after she was rescued by two policemen. Security guard Mohd Abbas Danus Baksan was found guilty of raping and murdering Nurul Huda. He was sentenced to 20 years' jail and 24 strokes of the rotan. But, due to his age, he was spared from whipping as the Malaysian law provides that those over the age of 50 should not be whipped.The crime happened at her doorstep, just 300 metres away from her home in Kampung Pekajang, Tanjung Kupang in Gelang Patah, Johor Bahru. Nurin Jazlin: The child who was kidnapped, sexually assaulted and murdered She was on her way to a nearby night market in Wangsa Maju to buy a hair clip. Sadly, Nurin Jazlin Jazimin, eight, went missing. Her parents filed a missing person report. It was every parent's nightmare. The child's naked body was found stuffed in a gym bag, with a cucumber and a brinjal lodged inside her genitals.The rape-cum-murder happened in 2007 but the crime remains unsolved until today. Adib Adha Ismail: Former Sukma athlete found not guilty of raping a female chaperone In October last year, Adib Adha Ismail, then 20, walked away scot-free from the charge of raping a 20-year-old female chaperone at the Sukma Games Village.The acquittal came after Sessions Court judge Abu Bakar Manat said the prosecution had failed to prove the case against the former Sukma athlete.Two others - Megat Farzeril Faiz Megat Razali, 19, and Mohammad Shaizzad Md Shafie, 19, who were slapped with a similar offence have also been discharged.Sarawakian Bunya Jalong: The man who ""finger-rape"" A 60-year-old man, Bunya Jalong, was acquitted by the Court of Appeal of raping a minor, on the grounds that he ""finger-rape"" in contrary to the present legal definition of rape, which is penile only. Bunya told the court that he penetrated the 14-year-old girl with his semen-smeared fingers.The girl has since given birth to a boy and DNA tests proved that Bunya is the father.The third part of the series will look into the proposed amendments to laws relating to rape. Pic credit:themalaymailonline.com, mstar.com.my, says.com"
"Rundingan Awam Ke Arah Pelan Tindakan Hak Asasi Manusia Kebangsaan Pelaksanaan NHRAPMalaysia berhasrat mewujudkan Pelan Tindakan Hak Asasi Manusia Kebangsaan atau National Human Right Action Plan (NHRAP). Sehubungan itu, Jemaah Menteri pada 12 Oktober 2012 telah bersetuju supaya diwujudkan satu Pelan Tindakan Hak Asasi Manusia Kebangsaan dengan memberikan fokus kepada 5 teras iaitu: Hak Sivil dan Politik; Hak Ekonomi, Sosial dan Kebudayaan; Hak Golongan Rentan; Hak Orang Asal dan Orang Asli; dan Kewajipan Antarabangsa. Matlamat NHRAPBerikutan itu, Bahagian Hal Ehwal Undang-undang (BHEUU), Jabatan Perdana Menteri telah dilantik sebagai focal agency untuk memastikan pembangunan pelan berkenaan dilakukan dan dilaksanakan seperti yang dihasratkan. Bagi tujuan ini, Tetuan firma guaman Hazizah & Co telah dilantik oleh BHEUU, Jabatan Perdana Menteri untuk menjalankan kajian ini. Umumnya, NHRAP bertujuan memberikan panduan kepada pegawai kerajaan, pertubuhan bukan kerajaan, badan profesional, pendidik dan masyarakat dalam menjalankan tanggungjawab untuk memastikan hak asasi manusia terpelihara. Dalam menjalankan kajian pembangunan NHRAP ini, pasukan perunding Hazizah & Co menggunakan beberapa pendekatan untuk mengumpul data iaitu temu bual, soal selidik, rundingan awam dan seminar kebangsaan. Sesi rundingan awam Baru-baru ini, sesi rundingan awam bagi zon tengah telah dijalankan pada 7 Mei 2016 di Auditorium Tun Muhamed Sufian, Fakulti Undang-undang, Universiti Malaya dan sesi rundingan awam bagi zon selatan telah dijalankan pada 13 Mei 2016 di Auditorium JOTIC, Bangunan JOTIC, Johor Bahru. Tujuan utama rundingan awam adalah untuk mendapatkan maklumat dan maklum balas daripada setiap lapisan masyarakat agar NHRAP yang dihasilkan kelak mengambil kira kepentingan setiap entiti dalam masyarakat. Rundingan awam ini melibatkan pertubuhan bukan kerajaan (NGO) dan masyarakat sivil (CSO). Dalam sesi rundingan awam ini, para peserta telah menyuarakan isu-isu dan masalah hak asasi yang mereka hadapi, faktor-faktor yang menyumbang kepada masalah tersebut dan cadangan dalam menjamin hak asasi manusia tersebut terpeilhara.Jadual sesi seterusnya Rundingan awam yang seterusnya secara bersemuka akan dijalankan seperti berikut.8.00 pagi hingga 12.00 tengahari di:Pulau Pinang (25 Mei 2016)Auditorium A, Bangunan KOMTAR, Pulau Pinang Terengganu (28 Mei 2016)Dewan Serbaguna, Perbadanan Perpustakaan Awam Terengganu Jalan Kemajuan, Padang Hiliran, Kuala TerengganuSarawak (23 Julai 2016) Auditorium Perpustakaan Awam Bintulu, Sarawak Bilik AV, Pustaka Negeri Sarawak, Miri, Sarawak Dewan Auditorium Kompleks Belia dan Sukan Negeri Sarawak, Kuching, Sarawak Sabah (30 Julai 2016) Bilik Madani, Wisma Muis, Kota Kinabalu, Sabah. Bilik Mesyuarat Nunuyan, Dewan Masyarakat Sandakan, Majlis Perbandaran Sandakan, Sabah Auditorium Dewan Perpustakaan Wilayah Tawau, Tawau, Sabah Ingin mengemukakan maklumat secara bertulis?Selain kaedah secara bersemuka, rundingan awam juga dijalankan secara bertulis. Individu atau pertubuhan yang ingin memberikan maklumat boleh mengemukakannya secara bertulis kepada pasukan perunding melalui emel kepada perundingnhrap@gmail.com atau layari laman web www.nhrapmalaysia.com. Pasukan perunding NHRAP Malaysia mengalu-alukan NGO, CSO dan orang awam untuk terlibat dalam sesi rundingan awam bagi memberikan maklumat tentang hak asasi manusia yang dapat membantu dalam membangunkan NHRAP.Dr. Ramalinggam RajamanickamFakulti Undang-undang Universiti Kebangsaan Malaysia (UKM)rama@ukm.edu.my03-8921 6355 (samb. 6376)"
"Rape and Sexual Assault: What To Do After A Sexual Assault Or Rape? Malaysia rape laws explainedThe Malaysia Penal Code broadly defines rape as non-consensual sexual intercourse, or consensual sexual intercourse that was accomplished by putting the woman in fear of death or hurt. The crime of rape also includes sexual intercourse with a girl below the age of 16 without her consent and with a girl below 12 with or without her consent. The statute explained that penetration is sufficient to constitute the sexual intercourse to the crime of rape. However, marital rape is not a crime unless a husband used violence or caused fear of death in order to have sexual intercourse. This is the first-part of a three-part series about rape and sexual assaults in Malaysia. Was I raped? What should I do now? Most rapes are committed by someone known to the victim. As a result, victims sometimes have doubts whether they have been raped or sexually assaulted. It is rape if...1. you were too intoxicated to give consent to sexual intercourse2. you were unconscious during the act (asleep, not remembering it as it can be a result of date rape drug) EVEN IF you never physically resisted or said ""no"" out of fear for your safety! What should you do if you have been raped? 1. Find a safe place to go. Get away from the perpetrator.2. Do not shower, wash your hands or clean yourself as doing so will destroy important evidence left behind by the assailant.3. It is a nightmare to deal with the after-effects of rape. But it is utterly important to report the sexual assault to the authorities as soon as possible.4. After lodging a report with the police, a female officer will bring you to the hospital to have a rape kit done.5. Remember the details. When reporting a rape, police officers would take a detailed statement from you. Try to recall what, how and where it happened, verbal exchanges with the assailant, as well as the location and time of the crime.6. Help is available. If you need support, counselling or just talk to someone, do not hesitate to contact non-governmental organisations. You can contact these organisations: Women's Aid Organisation (WAO) helpline: +603 7956 3488 Women's Centre for Change (WCC) : +604 228 0342 All Women's Action Society (AWAM): +603 7877 4221 The second and third part of the series will look into the crime of rape in Malaysia and the proposed amendments to laws relating to rape. Pic credit: monalawprecedent.wordpress.com, www.bbc.com, wikihow.com"
"From Friends To Enemies: Ali Tinju And Jamal Yunos KUALA LUMPUR: The friendship between Sungai Besar Umno division leader Jamal Yunos and ""Red Shirts"" leader Ali Tinju has been short-lived. The duo fostered a bond last year as they collaborated in the ""Red Shirts"" mass rally in September that aimed to uphold Malay honour and dignity. And now, less than a year later, the friendship has gone sour as they lodged a police report against one another. The drama started with Ali Tinju, also known as Mohd Ali Baharom, alleging that Jamal made a death threat to assault and shoot him. Subsequently, Jamal ""kept up"" with a similar move and lodged a report alleging that Ali Tinju humiliated him and his family. In the beginning, both seemed to have a similar mindset and moved towards the same direction - to 'protect' the Malays. So, where did it all go wrong that led to this crack in their friendship? The point is, politicians, activitists or leaders seemed to have developed a liking to lodge police reports when something goes wrong. A fine example is the frequency of Malaysia's ""king of police reports"", Abdul Rani Kulup Abdullah, who has lodged more than 1,000 complaints since 2011. Are they abusing their rights to file a police complaint? On what basis these police complaints are made?Pic credit: thestar.com.my"
"Penang PKR ADUNs Ordered To Toe The Line Pic credit: thestar.com.myThe five PKR backbenchers, who have previously abstained from supporting the Penang government’s land reclamation project, will have to stand behind the state this time.PKR deputy president Azmin Ali affirmed this yesterday, saying that it was important for backbenchers to play a role in supporting the state government’s policies. - The Star, 13th May 2016What is the role of the elected representative?The Malaysian public elects members of the State Assembly (ADUN) to represent their interests and concerns in the various houses. ADUNs can consider and propose new legislation as well as raising issues that matter to the rakyat. This includes asking questions about current issues such as those which affect local constituents.ADUNs are here not only to legislate but they also serve as a voice of the Rakyat. An ADUN does not sit in the house to represent his political party and its agenda. Call it protocol, call it political reality or even call it customary, it's still called nonsense.An ADUN is a representative of all his constituents regardless of their party affiliations.Parliament is a representative institution, which reflects dictum – “government of the people, by the people for the people”. It is the hub of democratic governance. It has a responsibility to foster public awareness of the basic tenets of democracy. The Member, as an elected representative of his constituents, is an agent for the realisation of the aspirations of his people and the nation at large. - Parliament of Ghana websiteFreedom to represent the RakyatHow can an ADUN be deemed to be a representative of the people if he is not allowed to freely vote on matters that are of great concern affecting the Rakyat or the state itself? Come each election, the potential candidates promise to: serve the Rakyat work for the Rakyat fight for the Rakyat speak on behalf of the Rakyat Once they are in the house, it would seem that party politics, more often than not, dictate their behaviour.Is the house to be known as a place where the Rakyat's representatives speak out or is it just a house of political representatives?Where is democracy when the agenda of a political party dictates the house?"
"4 Things To Do When You Trade So you are a trading businessmanMany of us are into trading nowadays. We sell from a shop, we sell from the comfort of our home. With the internet many are getting into the trading business.The 4 Tips No. 1 - Get a clear orderAlways ensure a clear order is made to you. Best to ask for a purchase order or an email for the order. If there is none, send an email to confirm the order. Tedious as it may be but it avoids any arguments later on.No. 2 - Have clear termsMake sure that the terms are crystal clear. Is there any warranty? Are there limits to the warranty? What is the price? Any payment for delivery? What are the terms for payment if any?Always be clear so as to avoid any doubt. No. 3 - Ensure that you have proof of deliveryIf it's sent by mail, always keep proof of delivery. If it is delivered by you, always have a delivery order and ensure that it is signed by the purchaser. Get a name, IC number, date and time of the delivery with the purchaser's company stamp.No. 4 - Follow up on the deliveryYup ... this is extra work but so save you a lot of heartache later on, always follow up on the delivery. Ensure that its in the hands of the purchaser. Ensure that the goods are received in good condition and there is no complain. Send and email to the purchaser thanking them for accepting delivery and confirming that the goods are in satisfactory condition.When things go wrong, when the buyer does not pay, they often dispute delivery (was not delivered in full) or they will allege that the goods delivered are not in good condition, even if they have used or sold it. This is very common.Happy Trading!"
"Lim Guan Eng Supports 2 Term Limit For CM Post Picture credit: malaymailonline.comIt was reported by the Malay Mail Online on 2 June 2015 that DAP’s Lim Guan Eng admitted that he had proposed to Pakatan Rakyat (PR) in the last general election to allow Chief Ministers to only serve two terms, but it needed further discussion by the leadership.The second-term Penang chief minister also said the issue will be brought up within his party first, as it is not official DAP policy, after which allies PKR and PAS will be consulted.“I was the one who brought it up and it was discussed with other PR leaders but we couldn’t get a consensus,” Lim said.Lim, who is also DAP secretary-general, said the matter is a serious one as it will involve amending the state constitution, hence it is important to get consensus first.So why was the motion proposed by YB Teh Yee Cheu rejected on technical grounds? Bearing in mind that this motion has yet to see the light of day despite being proposed on 3 occasions.Are politicians willing to walk the talk or are they walking away after talking?"
"“Ragging” Dalam Institusi Pendidikan: Di Manakah Kesudahannya? Apakah gejala ragging?Gejala “ragging” dalam institusi pendidikan di Malaysia bukanlah satu fenomena yang baharu. Gejala ini telah menjadi satu budaya atau amalan yang dilakukan oleh pelajar-pelajar senior terhadap pelajar-pelajar junior khasnya freshie (pelajar baharu). Aktiviti “ragging” melibatkan kedua-dua pelajar lelaki dan perempuan sebagai pelaku dan juga mangsa. Perbuatan “ragging” bukan sahaja melibatkan penderaan fizikal semata-mata malahan penderaan mental, emosi dan seksual. Perlakuan “ragging” dalam institusi pendidikan, sama ada diperingkat persekolahan mahupun di institusi pengajian tinggi, menjadi penghalang dalam melahirkan modal insan yang berkualiti bukan sahaja dari segi intelek malahan juga dari segi sahsiahnya. Aktiviti “ragging” bukan sahaja melibatkan penderaan fizikal semata-mata, malahan membabitkan penderaan emosi, mental, seksual dan sebagainya. Perbuatan “ragging” memberikan kesan yang besar kepada seseorang mangsa. Hal ini terbukti menerusi kes-kes “ragging” yang dilaporkan oleh media massa. Kesan negatif perlakuan ragging Impak negatif perlakuan “ragging” kepada seseorang pelajar adalah besar. Pelajar-pelajar yang menjadi mangsa “ragging” mengalami trauma fizikal, mental, emosi dan psikologi yang teruk sehingga terdapat pelajar yang meninggal dunia. Perkara ini terbukti menerusi berita kematian seorang pelajar Maktab Tentera DiRaja (Royal Military College) yang bernama Mohammed Naim Mustaqim Mohamad Sobri yang berusia 16 tahun pada tahun 2010. Kematian pelajar itu dikatakan mempunyai perkaitan dengan perbuatan “ragging” yang dilakukan oleh empat orang pelajar di institusi yang sama. Sebagai kesan, seorang pelajar dibuang daripada institusi tersebut dan tiga orang lagi digantung pengajian.Contoh-contoh kes ragging yang dilaporkan Sementara itu, pada tahun 2007 pula, seorang pelajar bernama Matteus Mering August di Sekolah Menengah Teknik Bintulu, Sarawak telah meninggal dunia akibat perbuatan “ragging” yang dilakukan oleh tiga orang pelajar yang lain di sekolah yang sama. Mereka telah menumbuk dan menendang mangsa sehingga menyebabkan kematiannya. Insiden ini diikuti pula dengan kejadian di negeri Pahang. Seorang pelajar tingkatan tiga di Kuantan telah dilecurkan dengan seterika panas oleh pelajar-pelajar seniornya apabila pelajar itu enggan untuk membelikan rokok kepada mereka. Manakala, sepuluh orang pelajar senior telah menyerang seorang pelajar Tingkatan Tiga di Mentakab, Pahang. Keadaan ini ditambah pula dengan insiden di Sarawak di mana beberapa orang pelajar di sebuah sekolah di Sarawak telah memukul rakan sekolahnya yang lebih muda dan kemudian memuat naik rakaman kejadian itu di internet. Pada tahun 2014 pula, kita telah dikejutkan dengan insiden “ragging” oleh sepuluh orang pelajar senior terhadap tujuh orang pelajar junior Universiti Putra Malaysia (UPM) di mana pelajar-pelajar junior ini dikatakan dipaksa berbogel dan menghisap rokok jika tidak mahu diapa-apakan (The Star, 5 Jun 2014). Oleh itu, dapatlah dikatakan bahawa aktiviti “ragging” bukan sahaja melibatkan penderaan fizikal semata-mata, malahan membabitkan penderaan emosi, mental, seksual dan sebagainya. Perbuatan “ragging” memberikan kesan yang besar kepada seseorang mangsa. Menangani perlakuan ragging Sungguhpun demikian, sehingga kini, perbuatan “ragging” dalam institusi pendidikan di Malaysia hanya ditangani menerusi tindakan tatatertib dan pekeliling semata-mata (rujukan: UKM 3.3.8/5/3 Jld 9, 1 Ogos 2013). Menurut Timbalan Naib Canselor (Hal Ehwal Pelajar dan Alumni) UPM, Dr Mohammad Shatar Sabran, apabila terdapat aduan tentang “ragging,” perkara itu akan dirujuk kepada jawatankuasa tatatertib dan tindakan kemudian diambil mengikut prosedur. Tindakan diambil bergantung kepada keadaan dan maklumat yang diperoleh. Pelajar yang melakukan kesalahan mungkin diberi surat peringatan, amaran, digantung atau dibuang terus daripada universiti (Sinar Harian, 2014). Di manakah kesudahannya? Perlu diingat bahawa salah satu fungsi hukuman atau tindakan yang penting adalah sebagai mekanisme pencegahan. Hukuman atau tindakan yang dibuat harus mempunyai unsur-unsur pencegahan. Persoalannya di sini, sejauh manakah bentuk-bentuk tindakan atau hukuman yang dikenakan ke atas pelaku “ragging” mencegah perbuatan “ragging” daripada berlaku? Ketiadaan satu perundangan yang spesifik dalam mencegah perbuatan “ragging” menyebabkan masalah ini tidak dapat dibendung dan dikawal daripada berleluasa. Dr. Ramalinggam Rajamanickam Pensyarah Kanan, Fakulti Undang-undang Universiti Kebangsaan Malaysia (UKM) rama@ukm.edu.my 03-8921 6355 (samb. 6376)Pic credits: Utusan"
"Democracy And Autonomy For Sarawak The aftermath of Sarawak state electionSo the 11th Sarawak state election is over and a storm is brewing in social media. Everyone knows the remarks made by over zealous pro-opposition netizens. Let's have a look at some of them:“Malaysia is better off without a Sarawak that is supportive of racism and corruption of BN in Putrajaya. Sarawakians are not welcomed in West Malaysia and can keep their Sarawak, hornbills and orang utans.” - The Star, 11th May 2016“Let the Christians in Sarawak get bullied by racist Umno. Do not do anything. Let them suffer for their RM30 dignity. Stupid people in Sarawak for those who vote BN. Also Selangor and Penang should start to not employ Sarawakians in West Malaysia. Let them work back in their so-called best state. Let them rot there.” - The Star, 11th May 2016It gets worse with people such as these:Autonomy for SarawakHow often have we heard the call to honour MA63? How often have we heard that BN is cheating Sarawak of its rights under MA63?If we want to fight for Sarawak to have the autonomy that it deserves under MA63 then how is that to be reconciled with the above statements by netizens?""You can have all the autonomy you want as long as it's my team that you vote for."" Is this how it works?So they want to let Sarawak have autonomy?What is 'Democracy' The essence of democracy is the freedom to choose government or representatives. The freedom not to live by being dictated. If one believes in the essence of democracy then we need to accept the choices made by fellow citizens. To criticise them when they fail to choose your team is sheer hypocrisy. Democracy allows the citizen the right to choose Democracy allows the citizens to vote for a corrupt government Democracy allows the citizen to lobby that all laws against corruption be repealed So do we want a democracy? Are we ready to accept democracy?"
"Survival Guide To Court: Episode 7- Taking The Witness Stand How do you testify in court?Watch Episode 7 of the WCC video series to find out:Women's Centre for Change is a non-profit , tax exempt organisation dedicated to the ending violence against women and children and promotion of gender equality. WCC provides free counselling and shelter services, conduct outreach and training, advocates for policy and legal reforms.For further information, contact WCC @ 04-228 0342Email wcc@wccpenang.orgWebsite: www.wccpenang.orgFacebook: WCC PenangTo watch the previous episodes, just follow these links:Episode 1Episode 2Episode 3Episode 4Episode 5Episode 6Pic credits: chronicle.augusta.com"
"Bak Kut Teh Facebook Posting Was A ""Joke"" KUALA LUMPUR: Vivian Lee, the female half of Alvivi, told the Sessions Court today that sex blogger Alvin Tan thought the controversial Ramadan bak kut teh Facebook posting was hilarious.The 27-year-old Lee, who is Tan's ex-girlfriend, told the court during the hearing that Tan, who saw the posting as a joke, also wanted public reaction from it.Due to negative comments received after the picture was uploaded on Facebook, Lee said Tan subsequently removed the posting and uploaded an apology video on Youtube. During cross-examination by deputy public prosecutor Wan Shahruddin Wan Ladin, Lee told the court that the posting was not hilarious as she found it to be offensive. The duo was charged under Section 4(1)(c) of the Sedition Act 1948 for posting the picture bearing the words ""Selamat Berbuka Puasa” (dengan Bak Kut Teh...wangi, enak, menyelerakan!)"" on their Facebook page at 9am, on July 12, 2013.The sex bloggers were also slapped with another charge under Section 5(1) of the Film Censorship Act for displaying pornographic images on their blog.However, Lee has since been acquitted of the charge under the Film Censorship Act. While Lee is facing the charge in Malaysia, Tan had jumped bail and left for the United States. What did you think of the posting? Regardless of whether you find it hilarious or simply distasteful, it is best for social network users to practice self-censorship and refrain from posting any remark, picture or video mocking the country's leaders or any religion. Otherwise, the authorities will come after you. Pic credit: theantdaily.com"
"Can't Do Anything? You Gotta Be Kidding Me! Touts Working Hand In Hand With LawyersTouting is such a lucrative business that the perpetrators have started opening their own legal firms with the help of new lawyers who have just completed their chambering. - The Star, 5th May 2016The Star reported that touts are now in business with some lawyers to glean the personal injury cases that are so abundant and lucrative. What is touting?Touting is a term used whereby an agent, the tout, will bring cases to lawyers in return for a sum of money. The amount is usually a percentage of the damages paid to the plaintiff.Is touting legal?Touting is an offence under Rule 51 of the Legal Profession (Practice & Etiquette) Rules 1978. It is an offence for the lawyer to employ or engage the services of a tout.Moreover, under Rule 52 a lawyer may not share their profit or even pay any form of commission with a person who is not a lawyer.But it must be noted that it is NOT unlawful for the tout to ply his trade.Touting and corruptionIn an accident case, the plaintiff will require documents such as medical reports, police reports, JPJ search etc. In many instances the touts will facilitate this. They do it 'expediently'. In fact many palms get greased pretty often enough. It creates a web of corruption.Now, corruption is something we all want stamped out right? The response from the legal fraternity Selangor Bar chairman Salim Bashir said nothing could be done as long as the legal firm was opened legitimately. - The Star, 5th May 2016 Shocking as it may be, the Selangor Bar chairman seems to have brushed off this matter by merely focusing on the actions of the tout. However, he seems to have conveniently forgotten how the arrangement is clearly in breach of Rules 51 and 52.Action needs to be taken against lawyers who flout the law. The Bar Council has deemed it fit to commence an action for judicial review against the AG on the basis that the Bar Council has a duty to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour.Anyone going to remind the Selangor Bar chairman of this? I wonder ..."
"Sarawak State Elections 2016: The Results Are In After a gruelling 12 days of campaigning for votes it all ends tonight. The official results are in and BN has emerged victoriously with a massive landslide victory, winning 72 out of the 82 seats up for grabs. The tally is as follows: BN - 72 seats DAP - 7 seats PKR - 3 seats Let's have a look at the statistics for all the political parties that contested in the 11th Sarawak State Election. PBB (BN): 40 contested, 40 won (100%) SUPP (BN): 13 contested, 7 won (54%) SPDP (BN): 5 contested, 3 won (60%) PRS (BN): 11 contested, 11 won (100%) BN Direct: 13 contested, 11 won (85%) Total BN contested 82, total won 72 (88%) DAP: 31 contested, 7 won (23%) PKR: 41 contested, 3 won (7%) PAS: 11 contested, 0 won (0%) PAN: 13 contested, 0 won (0%) PDBSB: 5 contested, 0 won (0%) STAR: 11 contested, 0 won (0%) Total Opposition contested 82, total won 10 (12%) Tan Sri Adenan is expected to be sworn in at 10pm tonight for another term as Chief Minister, while Plantation Industries and Commodities Minister Douglas Uggah Embas is tipped to be appointed Sarawak's deputy chief minister."
"Better Treatment For Politicians By Authorities Why are politicians treated better than the Rakyat who vote them into power?As we all know, names such as Kugan, Teoh Beng Hock and N Dharmendran are synonymous with deaths whilst in custody of the authorities. However, if we were to look at politicians who have had a run in with the law, we can see that many popular ones are treated differently. All persons are equal before the law and entitled to the equal protection of the law. - Article 8 (1) Constitution of MalaysiaAre we all not to be treated equally in the eyes of the law? Why are popular politicians treated better? Here are some instances. Rafizi Ramli, PKR Secretary-General Rafizi was charged this year under Section 8 of the Official Secrets Act. Police confirmed that he was never handcuffed following his arrest. Police confirm that Rafizi was never handcuffed during the entire time that he was in our custody this time. Stop the allegations - Khalid Abu Bakar (@KBAB51) 6th April 2016Dr Khir Toyo, former Menteri Besar of Selangor Dr Khir was charged at the Shah Alam Sessions Court in December 2010, with corruption involving the purchase of two lots of land and a bungalow in Section 7, Shah Alam.He arrived at court to be charged, un-escorted by uniformed police personnel, and was seen without handcuffs. Anwar Ibrahim, former Deputy Prime Minister of Malaysia In 2003, the prisons department agreed to allow jailed politician Anwar Ibrahim to conduct his daughter's akad nikah (wedding vow) ceremony at his Damansara home in Kuala Lumpur tomorrow, o­n the condition there are no objections from the police. Of course, the police had no objections to it and Anwar was able to attend the said wedding.He was also allowed to visit his sick mother in 2001. In 2002, he attended his older brother's funeral and then in 2015, Anwar Ibrahim's father passed away. Again, he was allowed to attend the funeral.The question that begs to be asked is ... How many common prisoners will be able to have such opportunities?New Straits TimesBody of inmate's father brought to prisonNow let's look at this particular incident. Shiv Kumar Ganga Bishan was upset that he was not allowed to attend his father's funeral. To add salt to injury, the prison officials arranged for the body of his father to be brought to the prison so that Shiv may pay his last respects.Looks like George Orwell knew this fact well back in 1945. All animals are equal but some animals are more equal than others - Animal Farm, George Orwell"
"Bar Council Legal Aid ... Serving Malaysians Since 1982​ Serving The Rakyat: The Bar Council's Legal Aid Scheme Q: How does an attorney sleep? A: First he lies on one side, then he lies on the other.Inasmuch as many jokes have been told about lawyers, truth be told, the legal profession in Malaysia has actually assisted the public in many ways without remuneration. An example is the legal aid scheme.In 2009, Ravi Nekoo, the current Chairperson of the National Legal Aid Committee, stated that:The Bar Council has been running its Legal Aid Centres since 1982 and has now established at least one Legal Aid Centre in every State in West Malaysia. The Malaysian Bar has always been proud of the fact that the Legal Aid Centres are unique in that the program is solely funded and managed by its own lawyers. Every year the legal aid centres receive an annual fund of RM1.3 million. This money is then disbursed to each State to serve the impecunious and the unrepresented. We have been diligently doing this for the past 27 years.The Bar Council's legal aid scheme was launched in 1982 so that poor Malaysians can have access to legal representation. Members of the Bar volunteer their time and are not paid for taking on the cases. This scheme is solely funded by members of the Bar themselves, who pay a levy of RM100 each year.Scope of legal aid workPicture credit: KL Legal Aid CentreAs the scheme is meant only for the poor and needy, every person seeking legal aid is required to undergo a mandatory means test.The Means Test Persons who are living below a certain financial threshold will only qualify. This is called the 'means test' and it is as the following.Monthly income (after deduction of monthly expenses) of NOT MORE than:Single person = RM650Married couple = RM900You cannot own property worth more than: HOUSE RM 45,000 CAR RM 20,000 MOTORBIKE RM 4, 500 SAVINGS RM 5, 000 So if you need legal assistance, call the Bar Council. Help is only a call away.Locate Bar Council Legal Aid Centres"
**UPDATE**  STATEMENT FROM AGC: PHANG LI KOON BUNGALOW SALE (IMAGE CREDIT: MALAY MAIL) ORIGINAL ARTICLE: Guan Eng's Ex-Landlord Out Of Trouble *** UPDATE ***
"Survival Guide To Court: Episode 6 - Your Rights In Court What are your rights in court?Episode 6 of the WCC video series will give you the answers:Women's Centre for Change is a non-profit , tax exempt organisation dedicated to the ending violence against women and children and promotion of gender equality. WCC provides free counselling and shelter services, conduct outreach and training, advocates for policy and legal reforms.For further information, contact WCC @ 04-228 0342Email wcc@wccpenang.orgWebsite: www.wccpenang.orgFacebook: WCC PenangTo watch the previous episodes, just follow these links:Episode 1Episode 2Episode 3Episode 4Episode 5Pic credits: wisegeek.com"
"Attempting Suicide In Malaysia Could Land You In Jail Suicide is a crime in MalaysiaImagine this - you try to take your own life by jumping off a building or a bridge, but somehow failed.You are now miserable over the failed attempt and it gets worse as the court of law ""rubs salt into your wounds"" by prosecuting you for attempted ""self-murder"".Section 309 of the Penal Code states any individual who attempts to commit suicide is punishable up to a year in jail, or a fine, or both if convicted. Section 309: “Whoever attempts to commit suicide, and does any act towards the commission of such offence, shall be punished with imprisonment for a term which may extend to one year or with fine or with both” University Malaya Medical Centre (UMMC) consultant psychiatrist, Muhamad Muhsin Ahmad Zahari, was quoted in an online portal saying that it takes sometime for an individual to have suicidal thoughts as individuals seldom take an abrupt decision to end their lives.For those who failed in their suicide attempts, they could end up in jail under Malaysian law. Prosecution against those who attempted suicideEven though it is not widely reported in the media, it is not uncommon for attempted suicide cases to be brought to the Magistrate's Courts.In September last year, Bernama reported a 59-year-old man was charged in court for attempted suicide after being rescued by the Fire and rescue Department from the ninth floor of the balcony of his condominium.In May 2012, a Somalian was sentenced to two months' jail for attempting suicide after he tried to stab himself with a knife.Every now and then, there will be news of individuals attempting to jump off the Penang bridge, up to a point where the Star newspaper ran an interview of a tow truck service runner, Tan Chin Leong, who have rescued a significant number of people who tried to leap off the bridge. Suicide rate in MalaysiaThe National Suicide Registry recorded 1.3 deaths for every 100,000 people in 2012.Meanwhile, World Health Organisation (WHO) recorded 800,000 suicides worldwide every 40 seconds during the same year. Prosecute or counsel?Numerous stories pertaining to stigma on suicide have quoted individuals such as Befrienders Malaysia president Ganga Dara and Associate Professor Dr Muhammad Muhsin Ahmad Zahari at the UM Specialist Centre. Ganga said those who attempted suicide need counseling because they are already in a negative state of mind. Dr Muhsin stated that individuals who attempted ""self-murder"" should not be treated like criminals because this approach is not helpful since suicide happened due to mental illness such as stress or psychiatric disorder.With experts sharing similar opinions that it is not right to prosecute someone who attempts suicide, this issue ought to be brought up for discussion by the government and relevant authorities.Is it necessary to punish someone with jail sentence after they have escaped the death? Self-helpIf you have suicidal thoughts, talk to someone close - be it your family or friends.Alternatively, contact The Befrienders at 03-79568144 (Klang Valley), 05-5477933 (Ipoh), 04-2815161 (Penang), and 08-8255788 (Kota Kinabalu), or visit their website for more information. If you notice someone close to you showing signs and symptoms of depression, spend more time to understand their feelings and find out what is bothering them. The next time you read about someone attempting suicide, don't be quick to judge. Instead, show them compassion. Pic credit: thestar.com.my"
"AKPK Boleh Tolong! It’s your worst nightmare. You have been unemployed for more than 6 months and is no longer able to service your RM8000 credit card debt. AND, now, the bank is coming after you. The bank sends you a letter demanding the debt be paid full with interest. If not, legal action will be taken against you.Are you feeling trapped? Don’t know what to do next and wondering who can help you out of this jam?Don’t worry.. Help is available! Contact Agensi Kaunseling and Pengurusan Kredit (AKPK). They are here to assist you in sorting out your debt problem.What is the AKPK? AKPK was set up by Bank Negara in 2006 to help individuals to take control of their financial situation by giving advice and educating the public on personal financial management. It also provides an avenue for the public to receive advice and counselling on personal financial-related matters. What does AKPK offer? Do you know that AKPK offers counselling and advice on managing your finances wisely? Their counsellors are there to help develop a personalised debt repayment plan with your financial service providers. What AKPK provides? Financial education - AKPK provides financial education materials on the proper use of credit and basic money management as well as tips on how to use credit responsibly.Financial counselling - AKPK offers counselling and advice on managing your finances wisely – from budgeting, money management and credit related issues.Debt management programme - Their counsellors will work with you to develop a personalised debt repayment plan in consultation with your financial service providers.How to get in touch If you are in debt or just need extra info about AKPK, then click here to contact them.Still thinking? Check out their website or call them up.Pic credits: kiplinger.com"
"Interfaith Child Custody: PM's Take On The Issue KUALA LUMPUR: Prime Minister Datuk Seri Najib Razak stated the Cabinet is looking for a solution in resolving interfaith child custody conflicts between Muslim and non-Muslim parents, but needed time to seek the Rulers’ views.Najib was commenting on the case of M. Indira Gandhi and her ex-husband, Muhammad Riduan Abdullah, who have been fighting in the courts to gain custody of their youngest child, Prasana Diksa.He explained that the Cabinet panel scrutinising the case was not formally convened.and has yet to elaborate on the proposed measures to resolve similar cases.“But we are looking into it because some of the measures to be taken involves consultation with all the Rulers so that takes a bit of time,” he said.Earlier this year, T]the government had announced the plan to amend three acts concerning child custody and property rights in cases of a change in religion by the husband or wife. Law Minister Nancy Shukri had also stated in March that the finished draft law on unilateral conversion of children is now awaiting feedback regarding Shariah issues.This sensitive interfaith child custody case has evoked strong controversies from both sides of the divide. In looking for the solution to this delicate and often times politicised problem, one consideration must override all other factors. It must be done in the best interest of the child. At the end of the day, the most affected party in this child custody tussle is ultimately Prasana Diksa herself. We must not forget this crucial fact,Pic credits: Forbes.com"
"Beware! Not All Agreements Are Binding Contracts A broken promiseA couple stayed overseas for several years. The husband decided send the wife home, promising to bank in a monthly allowance until his return.The wife got mad and sued. But she didn't succeed. Why is that so?There is no intention to create a legally binding agreement. This is what happened in Balfour v Balfour.Balfour v Balfour: A husband working overseas agreed to send maintenance payments to his wife. The husband stopped making the payments. The wife wanted enforce the agreement. The court ruled that the agreement was a social and domestic agreement and it was presumed that the parties did not intend to be legally bound.This brings us to the next question. What is an intention to be legally bound?An agreement is only legally binding if both parties have the common understanding that it will be bindingIn legal jargon, this is known in contract law as the ‘meeting of the minds’This means ...When you're buying: a football match ticket a watch a brand new car groceries there's no issue, when it comes to intention. These are all commercial agreements. The general rule is the parties will normally intend that it to be legally binding. But, what about domestic and social arrangements? In most domestic or social arrangements, the general rule is parties are presumed not to have the intention to create legally binding agreements.This means…when: you’re promising to pay for the drinks if your friend buys you dinner your brother said he’ll clean your house on weekends if you drive him to work every day it will be hard to disprove the presumption that these agreements are not intended to be binding.Whenever you enter into an agreement, please make sure that both parties are clear on whether it’ll be a legally binding one or not.Pic credits: WiseGeek"
"Survival Guide To Court: Episode 5 - The Trial Process What exactly goes on in the courtroom?Find out more in Episode 5 of the WCC video series:Women's Centre for Change is a non-profit , tax exempt organisation dedicated to the ending violence against women and children and promotion of gender equality. WCC provides free counselling and shelter services, conduct outreach and training, advocates for policy and legal reforms.For further information, contact WCC @ 04-228 0342Email wcc@wccpenang.orgWebsite: www.wccpenang.orgFacebook: WCC PenangTo watch the previous episodes, just follow these links:Episode 1Episode 2Episode 3Episode 4Pic credits: merdekaonline.com"
"The Malaysian Court System Tell me something about our courts Are you curious about the different courts that we have in Malaysia?Let’s find out together.First, let us look at this simple chart before going into the details: Subordinate Courts (Court for Children, Magistrate Courts, Sessions Courts)Court for Children Hears and determine any charge against a child (under 18 years old) Exercises jurisdiction under Child Act 2001 or any other written law. Consists of a First Class Magistrate and shall, as the case may require, be assisted by two advisers, one of whom shall be a woman. Magistrates’ CourtsCivil matter: First Class Magistrates’ Court- try all actions and suit (value not exceeding RM100,000. Second Class Magistrates’ Court- try original actions or suits (value not exceeding RM10,000) Criminal matter: First Class Magistrates’ Court- try offences punishable with imprisonment not exceeding 10 years, with fine only and offences under Sections 392 and 457 Penal Code. Second Class Magistrates’ Court- try offences punishable with imprisonment not exceeding 1 year or punishable with fine only. Sessions CourtsCivil matter: Unlimited jurisdiction to try all actions of a civil matter concerning motor vehicle accident, landlord and tenant and distress. Jurisdiction to try all other actions of a civil nature (not exceed RM1,000,000.) Criminal matter: Try all offences other than those punishable with death. Pass any sentence other than the death sentence. Superior Courts (High Court, Court of Appeal, Federal Court)High Court Two Chief Judges – Chief Judge of Malaya and Chief Judge of Sabah and Sarawak. Unlimited subject matter jurisdiction. Has original, appellate and supervisory jurisdiction Has general supervisory and revisionary jurisdiction. Court of Appeal Members- President of the Court of Appeal and up to ten Court of Appeal judges. Hear and determine civil appeals for cases (above RM 250,000.) Hear and determine any appeal against any High Court decision on criminal matter. Federal Court Members- Chief Justice, the President of the Court of Appeal, Chief Judge of Malaya, Chief Judge of Sabah and Sarawak and six Federal Court judges. Highest court in Malaysia and the final court of appeal. Hears civil and criminal appeals from the Court of Appeal. Decisions bind all the courts below. Special Court Established under Article 182 of the Federal Constitution, Hears any civil or criminal action against the Yang Di- Pertuan Agong or any of the nine Malay Rulers. pic credits: philembassykl.org.my"
"Suspected  ""Predator"" Policeman Identified KUALA LUMPUR: A police corporal who allegedly performed sex acts on three teenagers at the Jinjang Centralised lockup centre pleaded not guilty before the Magistrate's Court here today.31-year-old lance corporal Mohd Khairul Hisam Aziz, was released on RM6,000 bail in one surety today and the court has fixed May 19 for re-mention. He was charged under Section 377D of the Penal Code for outrages on decency that stipulates any individual who commits or abets any act of gross indecency with another individual is punishable with up to two years in jail. The accused, a father-of-two, allegedly committed the offence against the three teenagers on three separate occasions - 1am, 5am and 5,30am on April 10 this year. It was previously reported in The Malay Mail that the accused allegedly performed oral sex on one of the boys and forced the other two to masturbate before him. The incident came into the spotlight as it has highlighted weaknesses of the detention centres in the country despite of the Jinjang lockup centre being equipped with Self-Monitoring Analytics Reporting Technology (SMART), an intelligent monitoring system to detect suspicious behaviour of detainees and police officers on duty. If the SMART system has failed in identifying and preventing such incidents, how would other lockup centres or prisons fare without similar monitoring system? Perhaps it is time for the relevant authority to review its standard operating procedures (SOPs) and look into its monitoring systems to prevent similar incidents in the future. Pic credit: nst"
"Shoppers Beware! Be careful when you’re shopping! Last time we found out how handy the Sale of Goods Act 1957 (SOGA) is when it comes to protecting you when you go on a shopping spree.But, it doesn’t mean that you can throw all caution to the wind when you’re doing your shopping rounds! The general rule is: if you have the right to inspect the quality and conditions of that pair of shoes or handbag you want to buy, you’d better just say no! If after you've bought it and it turns out to be unsatisfactory AND you've inspected it prior to buying it, you’ll lose any legal rights against the seller. In legal terms, this rule is called ‘LET THE BUYER BEWARE’. AND This can be a problem... What if you’re buying a bottle of cooking oil? How would you reasonably inspect that? What if you’re buying your first car and you have to rely on the seller’s expertise to know whether it is good enough? SOGA steps into the picture to solve this problem by implying a number of terms in sale of goods contract as either conditions or warranties: CONDITION WARRANTY Meaning Important to the main purpose of the contract Secondary to the purpose of the contract Section Section 12 (2) of SOGA Section 12 (3) of SOGA What is it? Directly associated with the objective of the contract Secondary to the object of the contract. Result of breach Right to terminate contract No right to terminate contract Available remedies Terminate the contract and claim for damages Claim damages only Example You bought a cooking oil. The label stated it as pure olive oil. It turned out to be mixed with palm oil. You can return the oil and claim a refund. The car dealer stated the car you’re buying can run at 150 km per hour. The car gives only 90 km per hour. You can only claim damages for breach of warranty BUT, if you specified beforehand that you only wanted a car that’s capable of running at 150 km per hour, this will be a breach of condition. Have a great shopping experience ahead, and take note what your rights are!Pic credits: tm586.com"
"Survival Guide To Court: Episode 4 - The Court And The People What's the courtroom like and who are the people in there?Episode 4 of the WCC video series will show you:Women's Centre for Change is a non-profit , tax exempt organisation dedicated to the ending violence against women and children and promotion of gender equality. WCC provides free counselling and shelter services, conduct outreach and training, advocates for policy and legal reforms.For further information, contact WCC @ 04-228 0342Email wcc@wccpenang.orgWebsite: www.wccpenang.orgFacebook: WCC PenangTo watch the previous episodes, just follow these links:Episode 1Episode 2Episode 3Pic credit: pahang.kehakiman.gov.my"
"Internet Scams: We Give You The Heads Up! Don't get scammed onlineWith the internet phenomenon, not only do we have an explosion of portals and apps but also of many scam artistes utilising the internet as a platform to ply their trade.Try advertising on portals such as mudah.my and you will not only get real buyers messaging you, but also many scammers. Here are a couple of scams that happen online:SMS scamsScammer texting sellers ask questions about the items for sale and for a response via email. The number that texts you is usually non-existent or seems to come from a faraway land. You should call the number that texted you. If you are unable to reach them, don't bother emailing them. This scam uses the sale as an opportunity to open a dialogue with youCash buyer scam Yup ... cash is King and everyone gets caught up by it. Well, sometimes when they buyer offers cash in a flash you need to be cautious. There is a lot of phony money out there. The buyer will always try to purchase new items that are popular such as, say, an iPhone. The buyer hands counterfeit money to you and then resells the product at a discount.This is how they get rid of the counterfeit money for legal tender. Talk about spreading the wealth!Car sellers scammedPut up your car for sale and you will receive interesting emails or texts. A typical scam is one is where a buyer offers to purchase vehicle and offers to pay via PayPal. Due to them being from overseas, inform you that they will organise and pay for a freight company to pick up the vehicle. They will then claim an issue with paying the freight company, offer to pay you more and ask you to pay the freight cost into a Western Union account. The buyer then sends fake PayPal receipts to the seller, showing the extra funds. The seller is scammed after he has paid the funds into the account, later finding out that the original payment into PayPal was faked.So what do we do? Firstly, realise that all transactions will always take the traditional route. Know your seller or, at the very least, have the seller or buyer properly identified. Here are a couple of things to ponder about: Use your common sense: the offer may be a scam Never send money, or give credit card or online account details to anyone you do not know and trust Speak to the other party by telephone rather than just email and if the phone number is provided is not connected, treat this with suspicion When accepting an offer, insist on the buyer paying the correct amount Till the next time ... Stay Safe Online!"
"Five Things To Know When In Police Detention I'm in police custody, what happens next?You have been arrested and is now in police custody. Keep calm and here are a few things you should remember when you're in the lockup. 1. Your right to consult a lawyer You have a right to consult your lawyer at the Police Station. You must be given a reasonable time period and proper facilities for you to meet and consult your lawyer. This right can only be denied if the delay in questioning you may cause another crime to happen or danger to others. 2. Your personal belongings The Police must record details of your personal belongings and put them in safe custody. Always check the details before signing off on them. Your personal belongings must be returned after you are released. 3. Your clothing You are allowed to have one set of clothing with you in the lock-up. You can't bring anything else inside the lockup except for the clothes you're wearing. 4. Your welfare in detention You're allowed to take a bath two times a day. You have the right to receive immediate medical attention if you are sick. You must be given adequate food and water. 5. How long can you be detained? The Police can only detain you for up to 24 hours for investigations. The Police are under duty to complete investigations within 24 hours and to release you as soon as possible. They must bring you before a Magistrate for a remand order to extend your detention beyond 24 hours** (Section 117 Criminal Procedure Code). **If you are arrested on a weekly holiday (e.g. Saturday), your detention will not be counted as exceeding 24 hours when the police brings you before the Magistrate on Monday (Section 54(c) Interpretation Act 1967).Pic credits: goal.com"
"4 Things To Know About Good Consideration What is a good consideration? As mentioned in the previous article, a consideration is essentially a promise in exchange for a promise. Let us now look at what makes a good consideration: 1. Consideration must be sufficient but need not be adequate Andrew sells a handphone worth RM 1,000 for RM 10 to Ben. There is a valid contract here despite the inadequate amount paid for the handphone. There is no requirement that the consideration must be at market value, as long as the promisee provides something in value. 2. Consideration need not move from the promisee Andrew offers to pay Ben RM50 if Cynthia washes Andrew's car. Andrew refused to pay. Ben can enforce the promise even though he did not give anything in exchange for Andrew's promise. Section 2(d) Contracts Act 1950: A party to an agreement can enforce a promise even though he has given no consideration, as long as somebody else has done so. 3. Past consideration Ben lost his phone and asked Cynthia to look for his phone. Cynthia managed to find his phone. Ben was happy and later promised to pay her RM 300. The promise is made in return for a prior act. Can Cynthia enforce the promise? Yes, she can. Section 2(d): Past consideration is good consideration as long as the act was made at the promisor's request This reflects the English case of Lampleigh v Brathwait. In this case, Brathwait killed a man and then requested Lampleigh to seek a pardon for his crime from the King. Lampleigh managed to get the pardon. Later, Brathwait promised to pay Lampleigh £100. The court in this case said that while a mere voluntary promise is not sufficient consideration, there was a prior request and then the promise to pay. 4. Ties of natural love and affection Cynthia's brother, who was on his deathbed, promised to leave all of his property to her and said it was already made in writing. Cynthia can enforce this promise despite not giving anything in return. Section 26(a): An agreement in writing and registered under any relevant law made on account of natural love and affection between parties in a near relation to each other is valid, in absence of consideration."
"Survival Guide To Court: Episode 3: Reporting A Crime How do you report a crime?Episode 3 of the WCC video series will guide you on how to do so:Women's Centre for Change is a non-profit , tax exempt organisation dedicated to the ending violence against women and children and promotion of gender equality. WCC provides free counselling and shelter services, conduct outreach and training, advocates for policy and legal reforms.For further information, contact WCC @ 04-228 0342Email wcc@wccpenang.orgWebsite: www.wccpenang.orgFacebook: WCC PenangTo watch the previous episodes, just follow these links:Episode 1 Episode 2 Pic credits: Wikimedia"
"The Most Incredible Cases Ever Saved By Lawyers Today's a special day!I’m guessing that today, April 12, is a special day for all the folks working here at my sister company, AskLegal.If you happen to be wondering why, it is because today is “Be Kind To Lawyers Day”!No, I’m not joking, it is indeed an actual celebration.It may not come as a surprise to many, but a lot of people think lawyers are evil.I actually had the same opinion myself when I first started out my career in journalism. My experiences with lawyersI was working with a news portal a few years back and was given the task of writing an article revolving around the rights of people when dealing with police.I was given a tight deadline but the university lecturers that I contacted were all busy while the lawyer friends I knew were in property, so they didn’t want to comment.I then decided to take a visit to the many law firms nearby my office, with the hope of them giving me some advice for my article -- pro bono of course.Surprise, surprise, none of them wanted to.Which is why I think a website like AskLegal is a godsent for non-law educated people like me (shameless plug).Not all lawyers are like thatBut I don’t think lawyers are all that bad.In fact, they seem pretty cool to me -- just check out Tom Cruise in the movie “A Few Good Men” or the entire cast in the TV show “Suits” to see my point.In fact, lawyers are so cool that they can argue their way out of seemingly unwinnable cases.This is a great reason to be nice to lawyers on this day because who knows, you might need them to defend you in the future too!Check out a few of their ‘amazing’ cases below:# Rap music hypnotized my clientIn 1991, Christopher Martinez, 16, was accused of shooting Bruce Romans as he was walking across a bridge.His lawyer, however, argued that the rap music by The Geto Boys that Martinez was listening to at that moment had moved him into temporary insanity.Among the lyrics to the song were: “Trigger-happy nigger” and “cap him in the head”.(source)# Polygamy wins!On August 27, 2007, Mohammed Anwar was caught driving at 64 mph in a 30 mph zone in Glasgow, Scotland.He was fined £200 and given six penalty points but managed to avoid a license disqualification.His lawyer told the court that Anwar has one wife in Motherwell and another in Glasgow -- he is allowed up to four under his religion -- and sleeps with them on alternate nights.It was argued that a ban would make it difficult to commute between his two wives and fulfil his matrimonial duties.(source)# We all love big breastsIn 2008, Japanese pin-up model Serena Kozakura had a legal verdict overturned after successfully arguing her breasts were too big to allow her to squeeze through a hole that she was alleged to used to gain entry into a man’s room.The Tokyo High Court agreed her 44-inch bust was indeed too large for her to gain entry through the hole.I wonder if there were any demonstrations involved?(source)Happy “Be Nice To Lawyers Days” folks!"
"Saving Malaysia … Our Superheroes Who are the real heroes?Of late we have all sorts of calls to ‘Save Malaysia’. Road shows are planned. Declarations to be signed by millions. All sorts of forums have been or are being organised. It must be said that Malaysians love such theatrics. We seem to enjoy going to the circus to watch all sorts of acts that will be presented to satisfy their political hunger. Despite all this, there are those who live in the shadows. Those who suffer injustice on a daily basis. They live in fear of being oppressed, being ostracised, being victimised. They are the transgender. However, there are a few who are standing fast and trying to make a difference for the transgenders. These are our unsung heroes. With no fanfare, no media major coverage and not receiving much support from their fellow politicians who are way too busy setting up the circus big top. Transgender in Penang A study conducted by Universiti Sains Malaysia (USM) showed that there were more than 20,000 transgender people in the state as of 2001 and the number was growing.Picture credit: thestar.com.my Hezreen, 36, political secretary Hezreen Shaik Daud is the first transgender in Malaysian politics. She was appointed as political secretary to Tanjung Bungah state assemblyman Teh Yee Cheu in 2013. This raised eyebrows amongst those in DAP. With her appointment, this brings hope. Hezreen works at YB Teh’s service centre located in Tanjung Bungah, Penang. AskLegal caught up with her to see what she has been up to since her appointment in 2013: At the centre we assist the transgenders if they want to pursue their studies. We try to find a way so that they can fulfill their dreams. For those who are arrested, we do our best to handle it. Pertaining to employment issues, we try to help but it all depends on the employers. On the advocacy front, we collaborate mostly with NGOs such as Justice for Sisters to work out programmes. We do our best to raise awareness with company HR departments by giving talks. We explain to them about transgender issues so that they may have a better understanding about it. I feel that I need to take the lead as an example. I give my best. I hope that people will see and realise that there is a place for the transgender in society. I can see improvement as people are more receptive now. Nonetheless, I believe, one day, people’s views will change.YB Teh Yee Chue, 52, state assemblymanYB Teh has been known as The Green YB. As an avid cyclist, he prefers to burn calories rather than burn fossil fuel. He is concerned about the conservation of our surroundings for the future generation.Despite all of these, he has one major concern. The injustice suffered by members of the transgender community.Here are some of YB Teh’s thoughts about his work with the transgender community:I started to work closer with the transgender community in 2004. I met Hezreen then, and started to work with her. We started to build up a rapport and I learnt more about the transgender community.After 2008, GE12, I started to raise issues faced by the transgender community at the Dewan Undangan Negeri. I was concerned about how they faced discrimination and difficulties in life.My 3 primary concerns for the transgender are police lock up, their stay at a general hospital and also access issues at public toilets. Of course, there is also discrimination in jobs.During the state assembly sitting in 2010, I raised this issue, to the shock of many fellow state assemblymen. Many laughed and teased me by calling me ‘pondan’. It was disheartening that even my fellow assemblymen from DAP were shying away from this issue as they took cue from some leaders, who were not keen for this matter to be raised in the state assembly.State opposition leaders (BN) from UMNO called me ‘ketua pondan’. At each session I prepared information to try to make them understand. After many years, the hurdles start to disappear. Come GE13, there is a new set of opposition backbenchers. Opposition leader is now YB Dato’ Jahara from UMNO. I was surprised that Dato' Jahara was open to looking into the issues faced by the transgender community.I will be proposing that a sub-committee on transgender issues be set up. This will be submitted to the Penang State Assembly at its next sitting in May.In the midst of the ongoing political circus, these heroes are the ones who make a real difference in the lives of the people they are serving. And in the end, that's what being a hero is all about. Making real changes."
"PDRM: ​You're Under Arrest! They're coming for youYou're walking through the street one fine evening, eager to get home after a long day's work and just simply unwind. But, as you reach your doorsteps, you see two policemen waiting for you. One of them approaches you, asks you to lean against the wall with your hands behind your back.Oh no! It's fast becoming a nightmare. Your body feels weak and your mind starts going haywire.. How do I know that they're arresting me? Let’s look at the law:Section 15(1) Criminal Procedure Code (“CPC): an arrest may be made in the following manner: - (a) by actually touching the body of the person to be arrested; or(b) by actually confining the body of the person to be arrested; or(c) where there is submission to custody by word or action.Common law arrest: A police officer states that he is arresting OR uses force to refrain the individual concerned OR when he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go. What's next? You find yourself being handcuffed and told that you’re under arrest.So, what now? Don’t panic, keep calm and follow these steps:1. Don’t even think of resisting arrest!The police have the right to use reasonable force to arrest you if you try to resist (Section 15(2) CPC)). So, PLEASE don’t make life hard on yourself.2. Ask the reason for your arrest Just say “Why am I arrested?” If they don't tell you the reason, the arrest is unlawful (Section 28A(1) CPC).3. Ask about which station they are taking you to The arresting officer must take you immediately to the nearest police station. He can't take you anywhere else, even for a brief stopover at a coffeeshop or McDonald's to pick up food to bring to the station!4. Make that phone call You have the right to phone a relative or friend, and also a lawyer (Section 28A CPC). You are also entitled to call a Legal Aid Centre (LAC). Tell the person you’re calling that you have been arrested, the place, the time and why you are arrested. Don’t forget to mention which police station you’ll be taken to.5. Once you’re arrested You can be detained for up to 24 hours at the police station, or be put in a lock-up to assist police investigation.Remember, follow these steps and please avoid making an already bad situation much worse!Pic credit: todayonline,asiaone,rackcdn,panoramia,multiscreensite.com,malaymail"
"Hey Shoppers, Good News - Malaysian Shopping Protection Is Here! (*By the way it actually has been here for nearly 60 years! Did you know? Just in case, here's your chance to get to know it a little better) Let's go shopping You know how it is when you walk into a mall - A pair of new shoes screams your name, a new phone attempts to jump into your life, or maybe even a new video game starts begging - Buy me, spend the weekend with me!Guy or gal, everyone’s got some shopping weakness and whatever your guilty pleasure it’s always good to know that you’re protected! Regardless of whether it’s the can of Coke/Sprite/(insert preferred..) you’re sipping on or the brand new iPhone/Samsung/(insert preferred..) that you treated yourself to, the moment you bought these items the Sale of Goods Act 1957 (SOGA) covers them.. But, before we get taken incorrectly.. Is your shopping choice covered under SOGA?New phone? - YES New car? - YES New house? - NO Why? Because of the “definition” (Note: In the legal world definitions are numero uno!) Definition of goods under SOGA: Section 2 SOGA: ‘goods’ means every kind of movable property and includes stock and shares, growing crops, grass, and other things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. Your new handphone and car are movable properties since you can literally shift them around. However, try as you might, your house is not a movable. So, it’s not covered under SOGA. What you’re protected when it comes to a house. That’s a piece for another day. As for the moveable things that you own so much of - How does SOGA protect you?That’s where Sections 14 to 17 comes in to protect you as a buyer: Section 14(b): No one can interfere with the goods you buy Section 14(c): No one can have legal claim on the goods you buy Section 15: The goods you buy must fit the description Section 16: The goods you buy must be fit for its intended purpose and the quality must be reasonable Section 17(2): If you’re buying goods through samples, the majority of the goods must have the same quality as the samples Essentially in a nutshell - what you bought should work Phones should work as phones, not paperweights Coke/Sprite/(insert as preferred..) should be sweet and aerated, and not like...milk? And the car that you bought? Yes, it should function like a car. Not a broken down lemon. So, remember, moveable goods are protected under the SOGA. Know your rights! And, for those who’d like a slightly more complete picture: SOGA 1957 (Summarised) This act contains provisions that regulates all sale of goods contract in Peninsular Malaysia, regardless whether they are made orally or in writing.It tells you: what goods are covered under the act how the contract for sale of goods is formed the terms of the contract when property or ownership in the goods passes to the buyer the rights and remedies available to both the buyer and seller. Pic credits: presscdn.com"
"Time To Review Esscom Kidnapped by piratesThe abduction of two Malaysians by a group of armed men at a seafood restaurant in Sandakan, Sabah, that rocked the country last year is still fresh in the minds of people across the nation. Now, less than a year after that abduction, four Sarawakians were abducted from their tugboat, MV Massive 6, last Friday by eight armed men during a journey back to Tawau from Manila after delivering a cargo of timber to the neighbouring country. The police have yet to make any progress in the abduction case involving four Malaysians - Wong Teck Kang, 31, Wong Hung Sing, 34, Wong Teck Chii, 29, and Johnny Lau Jung Hien, 21. Piracy and armed robberySo far, the International Maritime Bureau (IMB) Reporting Centre map indicated only one piracy incident off the shores of Sabah and also in Malaysia this year. A check on the 2015 piracy and armed robbery map revealed three incidents near Sandakan last year. The three separate incidents involved a chemical tanker, general cargo and product tanker. None were abducted during the incidents, as robbers only boarded the cargo and tankers to steal the items onboard.Meanwhile, a closer scrutiny of the map over in the Peninsular waters found seven cargos were hijacked over the past one year.In March 22 last year, some ten pirates armed with weapons such as guns and knives reportedly hijacked a tug which was towing a barge. The pirates robbed and held the crews hostage during the incident. Fortunately, none were harmed as the entire hijacked incident lasted for five hours.Other hijacking incidents happened in Tanjung Ayam and Pulau Aur near Johor, and Tanjung Tuan in the Malacca Straits.Reviewing EsscomNow, the question arises - Is Malaysia safe? Less than a year after the kidnapping and beheading incident of Bernard Thien, many were shocked over the abduction of four Sarawakians last Friday. Kidnappings by the terrorist groups demanding for ransom are happening again near the shores of Sabah.Of course, this came as a surprise as the government has spent a huge sum to tighten the security within the waters in the area by establishing Eastern Sabah Security Command (Esscom) on March 7, 2013. Before we delve further, here is a brief explanation of what exactly Esscom is and why it was set up by the Government. What is Esscom?Esscom is an enforcement agency for the Eastern Sabah Safety Zone that covers the east coast area of Sabah from Kudat to Tawau, with four primary key roles including intelligence gathering to identify any potential threats besides improving the coastal surveillance. The implementation of Esscom involves the cooperation between the Royal Malaysian Navy (RMN) and the Malaysian Maritime Enforcement Agency (MMEA) to protect Sabah waters.Local mainstream media reported that there are currently 85 vessels around the island security post and Prime Minister Najib Razak said an additional 92 vessels would be acquired in the future to further beef up security.High-profile abductions pre and post-Esscom The government did not release any actual statistics to prove the effectiveness of Esscom in its effort to reduce kidnappings in Sabah waters. But let's take a look at some of the high-profile abductions over the years that were splashed across major media. In 2000, six armed men stormed into a resort on Sipadan island and took 20 hostages including 10 foreign tourists and a Malaysian police officer. Eventually, all were released at a later date. Fast forward to 2014, a year after Esscom was established - a series of abductions took place including a Chinese manager Yang Zailin, 34, manager of a fish farm near a town in Pulau Baik, Lahad Datu, Chan Sai Chuin, 32, as well as Chinese tourist Gao Hua Yuan, 29, and Filipino resort employee Marcy Dayawan, 40. And last year, Thien Nyuk Fun, 50, and Sarawakian engineer Bernard Then Ted Fen, 39, were taken from the seafood restaurant in Sandakan. Now to be fair, if we look into these kidnappings and its timeline there is an average of at least one abduction every year despite the establishment of Esscom.Of course, last Friday's kidnapping is slightly different in terms of its modus operandi because the armed men hijacked a ship in the waters instead of barging into a resort or going on land.The call for reviewThe continued abduction has even led to Sabah Culture,Tourism and Environment Minister Datuk Seri Masidi Manjun in urging Esscom and other relevant agencies to review the entire security area that were previously identified as potential threats for abduct for ransom purposes.Perhaps, this time around, such a suggestion should not just fall on deaf ears and the Government must take this issue seriously, as this is really a matter of life and death.Not only does kidnapping for ransom incidents affect tourism in Sabah, it also reflects on the state of safety and defence in Malaysia.Pix credit: Esscom.gov.my"
"Survival Guide To Court: Episode 2 Why should you report a crime?Episode 2 of the WCC video series will explain why:Women's Centre for Change is a non-profit , tax exempt organisation dedicated to the ending violence against women and children and promotion of gender equality. WCC provides free counselling and shelter services, conduct outreach and training, advocates for policy and legal reforms.For further information, contact WCC @ 04-228 0342Email wcc@wccpenang.orgWebsite: www.wccpenang.orgFacebook: WCC PenangPic credits: mayoclinic.org"
"PDRM: We Want You To Answer Some Questions What happens when the police question you? Previously, we talked about what should you do if you’re stopped by the police. This time they believe that you might have information about a case under investigation. Now what? They have the right to question you and take down your answers. At this stage, you are giving something called a 112 Statement (Section 112 Criminal Procedure Code).The request The police will usually informally request that you’ll give a 112 Statement If the time and place is convenient, please cooperate. If not, tell them you’ll do so at a convenient time and place What if you refuse to cooperate? The Police may issue a written formal order (Police Order), signed by an investigating officer to ask you to cooperate. Still refusing? You can’t be arrested, but it is still an offence. The Police will then ask the Magistrate to issue a warrant to ask you to cooperate. When you're giving the statement You may want to bring a lawyer to accompany you when giving the 112 Statement. Don’t forget your notebook to write down notes. Write down every question in your notebook. Understand every question asked. Think carefully before writing down answers in your notebook. Read out the answers to the questioning Police Officer Keep your notes for future reference. You can refuse to answer any question or keep silent if your answer is likely to expose you to a criminal offence (Section 112(2))Before you sign the Statement: Carefully read the questions and answers that the police officer has written down Compare the Statement you are asked to sign with your personal notes You have the right to make any corrections/changes to the Statement before signing. (Section 112(5)) Please sign immediately below the last sentence of your Statement. Remember, the police are just doing their jobs. Let’s make life easier for both us and them!Pic credits: says.com,pbs.twimg.com"
BICARA AKADEMIK FAKULTI UNDANG-UNDANG UKM (7 APRIL 2016): TPPA Universiti Kebangsaan Malaysia Law Faculty will be holding an academic talk on the Trans-Pacific Partnership Agreement (TPPA) on 7 April 2016.Below are the details of this event:
"Second Chances For Ex-Convicts The parole system The parole system gives second chances for ex-convicts to reintegrate into societyUnder current Malaysian law, offenders are given a second chance under a parole system introduced in 2008 to help them reintegrate into the society. Modeled after the Australian system, it was implemented under the Prison Act 2008, aimed at reducing the prisons’ congestion. Not much has been reported about the parole system. So, do you know how effective is the system in terms of prisoners’ adaptability into the society with employment opportunities while ensuring the safety of the general population? Statistics: success story in MalaysiaIn 2014, it was reported that the Prisons Department recorded a success rate of 98.8 percent in the parole system compared to other countries including United States, Canada and Australia. Six years after its implementation, the department has recorded only 1.72 percent, which is equivalent to 154 out of some 9,000 prisoners, who had to be sent back to the prison to complete their sentences after their parole orders were revoked. To qualify for the parole, convicts must undergo a minimum sentence of one-year jail or at least half of the sentencing period and have a good character, while at the same time receiving support from the family . Among the most high profile parolee is former Selangor Menteri Besar Dr Mohamad Khir Toyo, who was just released on Tuesday, after serving six months in Kajang Prison for using his then position to purchase a bungalow and two plots of land below the market price in 2007. Apart from Dr Khir, hundreds of convicts have also been released on parole after undergoing strict rehabilitation programmes. Accepting ex-convicts Seeing the success of the system, with a relatively low percentage of parolees having their orders revoked, perhaps society should give them an opportunity to reintegrate – by accepting and engaging with the ex-convicts. There are two sides to every coin. The next time society blames the Malaysian judiciary, think again. If we accept ex-convicts in the society by giving them employment opportunities, would they resort to burglaries or other petty crimes? Pic credit: Youtube"
"Legal Contracts Putting You to Sleep? Vote Plain English! Don’t you find it annoying that most contracts are unreadable to the regular person? Here's an example of such unreadable contracts: CONTRACT FOR THE SALE OF GOODS Paragraph 1.Mary Jay, hereinafter referred to as Seller, and John Walker, hereinafter referred to as Buyer, hereby agree on this 1st day of January in the year 2016, to the following terms. A. Identities of the Parties Paragraph 2. Seller, whose business address is 41 Kayu Road, in the city of Kuala Lumpur, state of the Federal Territory of Kuala Lumpur, is in the business of selling computers. Buyer, whose residential address is 34 Pokok Road in the city of Petaling Jaya, state of Selangor B. Description of the Goods Paragraph 3. Seller agrees to transfer and deliver to Buyer, on or before 2nd January 2016, the below-described goods: 1 (One) unit of Intel Celeron Processor Laptop C. Buyer’s Rights and Obligations Paragraph 4. Buyer agrees to accept the goods and pay for them according to the terms further set out below. Paragraph 5. Buyer agrees to pay for the goods in full, the amount of RM1500, upon receipt Paragraph 6. Goods are deemed received by Buyer upon delivery to Buyer’s address as set forth above. Paragraph 7. Buyer has the right to examine the goods upon receipt and has 7 days in which to notify seller of any claim for damages based on the condition, grade, quality or quality of the goods. Such notice must specify in detail the particulars of the claim. Failure to provide such notice within the requisite time period constitutes irrevocable acceptance of the goods. ** Keep scrolling.. we're getting to a point! We promise! ** D. Seller’s Obligations Paragraph 8. Until received by Buyer, all risk of loss to the above-described goods is borne by Seller. Paragraph 9. Seller warrants that the goods are free from any and all security interests, liens, and encumbrances. E. Attestation Paragraph 10. Agreed to this 1st day of January in the year 2016. By: Mary Jay On behalf of Seller I certify that I am authorized to act and sign on behalf of Seller and that Seller is bound by my actions. ______ [initial] By: John Walker On behalf of Buyer I certify that I am authorized to act and sign on behalf of Buyer and that Buyer is bound by my actions. ______ [initial] [STAMP DUTY HERE] Zzz...zzz..Yawn.. ** Did you make it through all that? We're guessing most of you just did a speed scroll past it all... ** Wouldn't it make life way easier if the same contract document could be simplified into this? Contract for Selling Goods: Date: January 1, 2016. Between: John Walker the buyer and Mary Jay the seller. To: deliver and sell One unit of Intel Celeron Processor Laptop at 34 Pokok Road, Petaling Jaya Conditions of the contract: 1. Mary Jay agrees to sell and deliver the laptop to John Walker by January 2, 2016. 2. John Walker will pay Mary Jay RM1500 for the laptop upon delivery 3.The laptop is deemed to be delivered once it arrives at John Walker's address. 4. John Walker has to right to examine the laptop and notify Mary Jones of any defects within 7 days of receipt. If John Walker fails to do so within 7 days, he is deemed to have irrevocably accepted the goods 5. Mary Jay bears all the risks of loss to the laptop until it is received by John Walker 6.Mary Jay gives warranty that the laptop is free from any legal interference or claims. Signed: John Walker. Mary Jay. Now...which of these versions did you find more appealing?Pic credits: grist.com, sunsigns.org"
"Survival Guide To Court: Episode 1 How do you survive the court process?This WCC video series will explain it all to you, step by step: &amp;amp;lt;span id=""selection-marker-1"" class=""redactor-selection-marker"" data-verified=""redactor""&amp;amp;gt;&amp;amp;lt;/span&amp;amp;gt; Women's Centre for Change is a non-profit , tax exempt organisation dedicated to the ending violence against women and children and promotion of gender equality. WCC provides free counselling and shelter services, conduct outreach and training, advocates for policy and legal reforms. For further information, contact WCC @ 04-228 0342 Email wcc@wccpenang.org Website: www.wccpenang.org Facebook: WCC Penang Pic credits: toodiablog.wordpress.com"
"Setting Standards For Domestic Violence Shelters National Standards For Domestic Violence SheltersWomen's Aid Organisation (WAO) have recently unveiled the Domestic Violence Shelter Standards and Toolkit on March 9 at Sime Darby Plantation Tower. This was done in collaboration with the Ministry of Women, Family, and Community Development (KPWKM)The Domestic Violence Shelter Standards and Toolkits is the end result of WAO working together with domestic violence survivors, NGOs and government agencies legally mandated to protect women survivors of domestic violence.The Minister of Women, Family and Community Development, Dato' Sri Rohani Abdul Karim, emphasised the government's commitment to protect women from violence through their joint efforts in developing the Domestic Violence Shelter Standards and Toolkit. WAO Vice-President Tashia Peterson stated that their collective goal is having every woman survivor of domestic violence to have safe and supportive shelter as an alternative to living in violence.This point was brought home by moving testimonies of two domestic violence survivors, who shared about their positive experiences on how WAO helped them out and being supported and empowered in WAO shelters. They have since moved on to productive lives. One of them is currently active in volunteering work. For more assistance on domestic violence, contact:"
"8 Differences Between A Sole Proprietorship, Partnership and Company How many types of businesses are there? There are three types of business out there: There's a sole proprietorship... Then, there's your regular partnerships... And of course you've heard of companies.. So, what's the difference between these three? Let's find out together in this simple table. TYPE SOLE PROPRIETORSHIP PARTNERSHIP COMPANY STRUCTURE An individual doing his own business Two or more people doing business for profit. A legal entity separate from it's members FORMATION No need to be formed in writing Can be formed orally or in writing Must be formed in writing, through a Memorandum and Articles of Association. REGISTRATION Must be registered under the Registration of Business Act 1956 Must be registered with the SSM under the Registration of Business Act 1956 Must be registered with the SSM under the Companies Act 1956 MEMBERSHIP There is only one person. A maximum of 20 partners, unless it is a professional firm No maximum number, unless it is a private company (50 members) MANAGEMENT The sole proprietor owns and manages the business himself Partners are agents of the partnership and are generally entitled to manage the partnership firm Company members are not its managers (directors) or agents BORROWING POWER Unrestricted borrowing powers Unrestricted borrowing powers Limited in borrowing, only for the purpose of its objective as stated in its Memorandum of Association LIABILITY Unlimited liability for the business debts Unlimited liability for the business debts Company members are not liable for the company's debts once they hold fully paid company shares. DISSOLUTION Can be dissolved informally Can be dissolved informally There must be a formal procedure, winding up and liquidation, in dissolving the company I’m curious now...which of these business types you think you want to start?"
"Lawyers Gone Bad Lawyers breaking the law they are supposed to upholdRecently, the Star Online reported that lawyer Michael Anthony was charged under Section 354 of the Penal Code for assault or use of criminal force to a person with intent to outrage modesty, where he allegedly touched the buttocks of Cristal Chua, 22.The other charge was under Section 511 of the Penal Code for attempting to commit the same offence on 20-year-old Tammy Ong.Lawyers are supposed to uphold the law and justice. However, there are some that have tarnished their reputation.There are countless stories of lawyers committing crimes and misdeeds worldwide.Here's a round-up of some of them: UK - Desmond Rosario Called to the Bar in 1990 and was a member of Sheffield’s Paradise Chambers Left the UK and went on the run across the world following the sexual assault he committed in October 2013 - He carried out the attack while the child’s mother was asleep in the same room Failed to appear at a court date in Leicester in June 2014, after a police interview under caution Warrant was issued for his arrest Claimed the girl must have dreamt that he assaulted her. Was found guilty by jury at Leicester Crown Court and was sent to prison for four years in 2015. Australia - Andrew Fraser A high-profile criminal lawyer in Melbourne. Involved with importing cocaine worth AUD2.7 million. Sentenced to seven years' imprisonment with a minimum period of five years' in 2001 Released two months earlier than his release date after agreeing to give evidence against serial killer Peter Dupas in his trial for the murder of Mersina Helvagi Singapore- David Rasif Left Singapore with SGD 11.3 million of his clients' money in 2006 before anyone discovered his crimes. The Singapore Law Society filed a report with the Singapore Commercial Affairs Department (CAD). He has since been in disbarred CAD recovered SGD 6.4 million in cash and gold in Singapore and abroad. Is still at large, last seen in Bangkok in June 2006 and is on the Interpol's wanted list Malaysia- Christina Liew Lawyer and Api Api PKR state assemblywoman The High Court found that she and two others have unlawfully induced Bahagak Smallholders Scheme participants to breach their joint venture agreement Was ordered, alongside two others, to pay RM557 million in damages, the highest sum ever in Malaysia. The case is currently pending appeal These are just but a few examples of lawyers who have given the rest a bad reputation through these misdeeds.(Pic credits: nextpoint, itv.com, news.com.au, asiaone.com, 1b.blogspot.com)"
"Unbecoming Conduct: Lawyers Touting Lawyers touting for clientsToday, the National Legal Aid Foundation (YGBK) has hit out at lawyers who employ touts to get clients. Touting is prohibited under the Legal Profession Act 1976 (LPA).Ravi Neeko, chairman of the YGBK Steering Committee, said that it is “major menace” to legal practice. Ravi also pointed out that the main motivation behind touting was monetary gain. He further added that lawyers who employed touts are more interested in money than in their clients’ interests, taking advantage of people who are in a helpless state. The touts would target naive members of the public with little knowledge in court matters and procedures by introducing them to lawyers.What are the rules on touting for lawyers? Rules on touting Lawyers in Malaysia are not allowed to pay or hire someone to introduce clients to them, The Legal Profession (Practice and Etiquette) Rules 1978 lays down the law on touting: Rule 51. Advocate and Solicitor not to do or cause touting An advocate and solicitor shall not do or cause or allow to be done, anything for the purpose of touting directly or indirectly, or which is calculated to suggest that it is done for that purpose. Rule 52. No division of costs or profits with unqualified person It is unprofessional and improper conduct-(a) for an advocate and solicitor to divide or agree to divide either costs received or the profits of his business with any unqualified person;(b) for an advocate and solicitor to pay, give, agree to pay or agree to give any commission, gratuity or valuable consideration to any unqualified person to procure or influence or for having procured or influenced any legal business and whether such payment, gift or agreement be made under pretext of services rendered or otherwise, but this rule does not prohibit the payment of ordinary bonuses to staff;(c) for an advocate and solicitor to accept or agree to accept less than the scale fees laid down by law in respect of non-contentious business carried out by him except for some special reason where no charge at all is made. Bar Council action against alleged online touting Back in 2010, Index Continent Sdn Bhd created a platform, Answers-in-Law, providing access to legal advice and representation using interactive legal directory and on-demand legal advice through the phone or the internet.The website also offered annual subscription plans to users in case they have legal needs. Index Continent subsequently got into trouble when the Malaysian Bar went to court to obtain an injunction to stop it from operating, saying the company was an “unauthorised person” under Section 37 of LPA. Lawyers who are involved in touting Lawyers who tout are committing misconduct under section 94(3)(f), (g) and (h) of LPA. Section 94(3)(f), (g) and (h):(f) the tendering or giving of any gratification to any person for having procured the employment in any legal business of himself or any other advocate and solicitor; (g) directly or indirectly procuring or attempting to procure the employment of himself or any other advocate and solicitor through or by the instruction of any person to whom any remuneration for obtaining such employment has been given by him or agreed or promised to be so given; (h) accepting employment in any legal business through a tout.Touts exist because lawyers use them. Preying on the vulnerable and helpless outside the court through touting is somethiing that every lawyer must shun. Touting will only end when members of the legal profession cease this unbecoming conduct.Pic credit: eqpower.ch"
"Investigating Lim Guan Eng - Part 2 Picture credit: nst.com.myIn the Part 1 of Investigating Lim Guan Eng, we went through the background of the issue, the accusations and we know who the concerned parties are. Now let's have a look at what possible laws may be relevant to this whole matter.Possible offences? Before we proceed any further we must be reminded that a person is innocent until proven guilty. The court will be the party who decides on facts and guilt. This is not a trial by media. S 23 MACC Act: Section 23 (1) MACC Act provides that:Any officer of a public body who uses his office or position for any gratification, whether for himself, his relative or associate, commits an offenceOfficer of a public bodyAn ""officer of a public body"" includes a person who is a member, an officer, an employee or a servant of a public body, and includes member of the administration, a member of Parliament or of a State Legislative Assembly ...Gratification Money, donation, gift, loan, fee, reward, valuable security, property or interest in property being property of any description whether movable or immovable, financial benefit, or any other similar advantage, Elements of the offenceThere is a need to establish that the person accused is: Officer of a public body uses position or office for gratification. The prosecution will need to establish that Lim Guan Eng used his office or position for gratification when he made some decision or took any action whether for himself, his relative or associate in relation to some matter in which he or perhaps his associate, has interest whether directly or indirectly.Ms Phang is neither his relative nor his associate as defined by the MACC Act. Moreover, Lim Guan Eng stated that he did not sit on the Tender Board concerning Taman Manggis. Also, he stated that KLIDC was the highest bidder. S 165 of the Penal Code S 165 states: Public servant obtaining any valuable thing, without consideration, from person concerned in any proceeding or business transacted by such public servant Whoever, being a public servant, accepts or obtains, or agrees to accept or attempts to obtain, for himself or for any other person, any valuable thing, without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted, or about to be transacted, by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punished with imprisonment for a term which may extend to two years or with fine or with both. What must the prosecution prove? For a charge to stick, the prosecution need to prove elements of the charge. Here are some pointers in layman’s terms as to what the prosecution will be required to prove: Lim Guan Eng is a public servant Lim Guan Eng purchased the bungalow The bungalow was purchased at a price of which he knows to be inadequate The purchase was from a person who is he knows is concerned with a business transacted by Lim Guan Eng However, in s. 165 of the Penal Code it also states ... ""or from any person whom he knows to be interested in or related to the person so concerned."" Is Ms Phang 'connected' to a person so concerned? So now with the current accusations, there are parties attempting to connect Ms Phang to Lim Guan Eng via Tang and the Taman Manggis sale. Seems like a long shot, though.Connected by association? It must be noted that Ms Phang is not a shareholder or a director in KLIDC. She is merely a business partner of Mr Tang. Neither KLIDC is a shareholder in Winbond Management nor is Winbond Management a shareholder in KLIDC. Hence, is it possible that the act of corruption of via 'proxy' arises? Picture credit: malaymailonline.com Any similarity with Khir Toyo’s case? Only obvious similarities are that: Property purchased below the market value Both claim they had no idea of actual market value at point of purchase Buyer heads the state government One of the ‘critical’ elements in Khir Toyo’s case The seller has dealings with the Selangor state government via PKNS, of which Khir Toyo was Menteri Besar of at the relevant time.In Lim Guan Eng's situation, there is no such close connection, it would seem ... for the moment, unless being a business associate of a third party is deemed as creating that connection. The clincherNow, more allegations have surfaced claiming that that: during the tender of the Taman Manggis land, the stipulation was for a medical facility to be built and managed a letter purported to be written by the Land Office on 7 December 2011, approving the land use to be amended to 30% medical facilities and 70% for service suites & hotel Will the prosecution now state that as the Chief Minister, the EXCO member in charge of Land Affairs and Land Development for the state and Chairman of the State Planning Committee, it is certain that Lim Guan Eng is aware of this change, which would have needed his approval, and that this approval is the ""you help me, I help you"" act?Is it not uncommon for changes to be made, as development plans also change?It will be most interesting to follow this matter if it goes to trial. We will see what real evidence is available to both sides and not just scrape what we have from the internet and the media.It surely will be fun to watch the advocacy skill of the prosecution and defence lawyers in court when attempting to prove their case. Now where's the popcorn?"
"How To Register Your Company Must you register your company? The Companies Commission of Malaysia (SSM) requires you to register your business whether it is a sole proprietorship, partnership or company. However, a company would have to be incorporated under Companies Act 1965. Before SSM Registration To incorporate a company, it would need to be registered with SSM. A company incorporated as private company will have “SDN BHD’ appearing together with the name, while a public listed company carries “BHD” in its name. Section 14 of the Companies Act 1965 requires you to have a minimum of 2 subscribers to your company’s share and also 2 directors according to Section 122. You would also need to have a company secretary. SSM Registration Before your company can be incorporated, a name search would have to be done with SSM to make sure your proposed company name is available for registration. A payment of RM30 is also required for each name you are applying for. However, your proposed company name will be subject to SSM approval following their guidelines. Lodgement of Documents Once your proposed company is approved, you are required to submit following incorporation documents within 3 months from date of approval of the company name. Memorandum and Articles of Association ( each stamped at RM100) Form 48A (Statutory Declaration) Form 6 (Declaration of Compliance) Original copy of Form 13A A copy of the letter from SSM approving the name of the company. A copy of the identity card of each director and company secretary. Registration Fees Schedule A fee is payable according to the proposed company’s authorised share capital.You can refer to the table here.Certificate of IncorporationA Certificate of Incorporation will be issued by SSM you have complied with the incorporation procedures and submitted the duly completed Incorporation Documents."
"Investigating Lim Guan Eng - Part 1 Picture credit: mole.myMACC opens investigation paper on Penang CMThe Malaysian Anti-Corruption Commission (MACC) Penang has commenced a probe after opening the investigation paper into Penang Chief Minister Lim Guan Eng controversial RM2.8 million bungalow purchase.Its director, M. Samarajoo said MACC only received a report last Friday and will give feedback after investigations are wrapped up.A lot has been said about this matter since the matter was brought up in Parliament last week. But we need to put things in perspective. We need to see what are the legal issues. We need to look beyond all the political rhetoric.Some background Picture credit: malaysiakini.comLim Guan Eng purchased a bungalow at Jalan Pinhorn, Penang for a reported sum of RM2.8 million. He has been renting the property since July 2009, I guess he felt it’s time to grow some roots in Penang by acquiring a home. The seller is one Ms Phang Li Khoon. The accusations So, the Member of Parliament for Tasek Gelugor, Datuk Shabudin Yahaya, raised this matter in Parliament. He found that the sale was under priced. Datuk Shabudin was of the opinion that the property in question has a market value of around RM6 million. To drive in the stake deeper, Datuk Shabudin linked the sale of the bungalow to a sale of state land, known as Taman Manggis in Georgetown, Penang, to this bungalow transaction. He is implying that there might be a connection between the cheap bungalow price and the sale of the land known as Taman Manggis to a company known as Kuala Lumpur International Dental Centre Sdn Bhd (KLIDC). KLIDC announced that they will develop Taman Manggis and will build a dental centre and hotel. This is to promote medical tourism for Penang. He felt that there is something not right about this transaction and called upon the authorities to look into this matter. Accusations in cyberspace The accusations in cyberspace is rife. Many who oppose Lim Guan Eng accuse him of wrong doing because: Bungalow was purchased cheap Seller is a ‘business partner’ of a shareholder/director of KLIDC, one Tang Yong Chew Is there any truth? Well, only time will tell ... till then these remain as mere accusations.Taman Manggis Picture credit: themalaysiantimes.com Taman Manggis is located on Penang island, it is a piece of land sandwiched between Jalan Burmah, Lorong Selamat and Jalan Zainal Abidin. In 2012, it courted controversy when the land was successfully sold via open tender to KLIDC. Controversy arose as many who opposed the sale to KLIDC felt that Taman Manggis builds public housing or low-cost houses for rent on that land (PPR). It must be noted that Phase 1 of the Taman Manggis was developed as PPR homes. Who is who? So coming back to the Jalan Pinhorn bungalow, we need to know who is who. Here is a list of the players: Lim Guan Eng – Chief Minister of Penang and purchaser of bungalow at Jalan Pinhorn Ms Phang – seller of bungalow at Jalan Pinhorn, shareholder and/or director of Winbond Management & Consultant Sdn. Bhd. Tang Yong Chew – shareholder and/or director in KLIDC, Winbond Dental Laboratory Sdn. Bhd. and Winbond Management & Consultant Sdn. Bhd. KLIDC – the purchaser of Taman Manggis through an open tender Caveat: This chart is prepared by a netizen known as Colin Tan, AskLegal does not endorse the authenticity of its contents nor support any of the allegations contained thereinPossible offences Before we proceed any further we must be reminded that a person is innocent until proven guilty. The court will be the one who decides on guilt. This is not a trial by media.So what are the possible offences? Section 23 of the MACC Act 2009 - Offence using office or position for gratification Section 165 of the Penal Code - Public servant obtaining any valuable thing, without consideration, from person concerned in any proceeding or business transacted by such public servant Got your bearings yet? I hope so, because in the next part we shall look into the elements that are required to prove the offence under either S. 23 of the MACC Act or S. 165 of the Penal Code."
"Penang State Government's Helping Hand For Squatters Picture credit: malaymailonline.comResidents of a kampung in Bukit Mertajam who face eviction after losing a court case against the land owner have been assured of help from the state government. Bukit Bendera MP Zairil Khir Johari said the state government had given its word to defend the residents. - freemalaysiatoday.com, 20th March 2016One has to commend the Penang State government's policy to provide assistance and aid to occupants of land who have been evicted. This will at least ease their burden and lessen their worries. Not a great long term measure, but something is better than nothing.The State Government was successful in being a mediator to ensure that the occupants received some form of compensation before they vacated their homes.This was seen in instances such as Kampung Ceti in Batu Feringgi, where 300 residents were affected by a development of the land. Each home received compensation from the developer.MP Zairil Khir Johari speaks upIt was reported in freemalaysiatoday that:“This case involves the land owner, not the developer. They (land owner) had used the legal route to evict the residents and they won. But the state government intervened and will not support the eviction if the residents are not compensated."" - Zairil Khir JohariHe added that any development project on affected land would not be approved until the parties involved provide the residents with appropriate compensation.Mere licensees of landIn the past, AskLegal has written pieces on the plight of such occupants of land. We also touched on their legal rights. In short, these occupants have very little right. Read more here:Wherever I law my hat, that's my home - Malaysian land law and the rights of mere licenceesWhere's the street-wise Hercules to fight the rising odds? - Rights of occupants that can be defeatedPlight of 'squatters': Their homes, their story - Listen to the stories of those who are affectedArm twisting or 'gentle persuasion'? If the landlord is armed with a court order to evict occupants, how can one then say that he needs to further comply with more terms and conditions, before the State Government will approve any development?The court order has decided on the legal status of the occupants. Presumably, they have no registrable interest over the land and that they need to vacate it.Zairil is of the opinion that the landlord has his rights and the State Government have their right too (to disapprove any development).However, the whole issue is not that simple. The State Government may be subject to judicial review. And when faced with one, it is clear that their basis not to grant any development order is ... the landlord has not fully satisfied our policy to ensure that occupants are satisfactorily compensatedBut the occupants have failed to prove that they have any right in the land. Let's not forget that the court has granted an order for vacant possession.What we have here is a state government policy (to ensure satisfactory compensation, which is not law) versus the land law and an order of a court.Judicial reviewJudicial review is a form of court proceeding where the judge reviews the lawfulness of a decision or action, or a failure to act, by a public body exercising a public function. Judicial review is concerned with whether the public body has correctly applied the law and followed the right procedures.Read more about judicial review here.Respecting the law at what cost?The dilemma faced is, do we follow the letter of the law and act without any care or do we want to care and run foul of the law?How do we uphold the law whilst trying to uphold a social cause that runs in conflict with it?"
"The Secrets Behind OSA Picture credit: aliran.comOf late many are upset with the current AG Tan Sri Mohamed Apandi Ali. Many are unhappy that he is mooting the idea of stiffer penalties for those who are charged under the Official Secrets Act 1972 ('OSA').The OSA is a statute in Malaysia prohibiting the dissemination of information classified as an official secret. The legislation is based on the Official Secrets Act of the United Kingdom. - WikipediaWhat is the OSA?Well, OSA basically allows government documents to be deemed as a secret. It cannot be revealed without proper authorisation. Even information or material pertaining to those documents can be deemed as official secrets. What are the penalties?OSA provides for sentences that run between a minimum of 1 year to a maximum of 14 years and even life imprisonment. Of course for some offences, a monetary penalty is prescribed.Interesting fact: The OSA makes provision for 'spying', as spelt out in Section 3. The penalty for spying under the OSA is life inprisonment. Is Malaysia the only country with the OSA?We are not alone! Here is a list of a few countries with similar legislation:MauritiusSingaporeHong KongNew ZealandUnited Kingdom - the defence of 'public interest' was repealedCanada - Canada's version is called the Security of Information ActAustralia - in Australia it is a provision of their Crimes Act 1974 which restrict Commonwealth public servants from revealing confidential information, though the courts have interpreted this as information affecting national security or the proper running of government, not information which is merely critical or unflattering of the government.)So what can we say? It is safe to say that our OSA is not something of a shocker. Many countries have similar legislation. There is a need to protect information for each nation.Freedom of Information Act?As much as we want to scream ""FREEDOM OF INFORMATION"", ""FREEDOM OF EXPRESSION"" ... there are already instances showing the failure of the Freedom of Information legislation in the states of Selangor and Penang.[Failure of the FOI Enactment in Selangor and Penang]The problem lies not in legislation but rather those who enforce or abuse it."
"Seeking Judicial Review Of AG's Decision : Should The Bar Council Do That? What is the Malaysian Bar Council doing?Bar Council president Steven Thiru said on Wednesday that the legal body was seeking a judicial review of Apandi’s recent decisions regarding the case involving the prime minister. Responses to Bar Council’s actionJudicial and Legal Service Officers Association (JALSOA) will hold an extraordinary general meeting to reject Bar Council’s move. They criticised the Malaysian Bar and described it as interference with the affairs of the A-G’s Chambers. Senior lawyer Tan Sri Muhammad Shafee Abdullah said the Bar Council's attempt to seek a judicial review made it appear as a busybody Barisan Nasional strategic communications director, Datuk Abdul Rahman tweeted that Bar Council’s request for judicial review of A-G’s decision could open up a Pandora’s Box. Firstly, what is a judicial review? What is a judicial review? Judicial review is a form of court proceeding where the judge reviews the lawfulness of a decision or action, or a failure to act, by a public body exercising a public function. Judicial review is concerned with whether the public body has correctly applied the law and followed the right procedures. A person must have sufficient connection to the subject matter of the claim to apply for a judicial review Is the Bar Council being a busybody seeking for a judicial review in this case? Let's briefly look at what is the Bar Council all about. What is the Bar Council?The Bar Council is established under the Advocates and Solicitors’ Ordinance 1947, which was later repealed and replaced by the Legal Profession Act 1976. It is a body corporate and can bring action on its own behalf in proceedings such as judicial review.The Bar Council is a creature of statute, born of Parliament.The Bar Council has a special purpose under S. 43 (1) (a) of Legal Profession Act 1976. It states that the Bar Council has duty to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour.To sum it up, the LPA 1976 appears to supports the Bar Council's action in seeking a judicial review of the AG’s decision.Whether the court will grant the remedies sought for is another issue Pic credit"
"What’s Up With Lim Guan Eng? What is happening with Lim Guan Eng?Penang Chief Minister, Lim Guan Eng was accused by Shabudin Yahaya (BN-Tasek Gelugor), alleging that Lim purchased a house at an unusually low price.Shabudin claimed that the house was initially valued at RM2.5 million in 2008 but then purchased at a mere RM2.8 million in late 2015. Moreover, extensive renovations was done back in 2008 thereabouts.Shabudin also threw in a stinger, as he linked this to the sale of a land, known as Taman Manggis, in Penang to a company that had plans to develop a private dental clinic and a hotel. Originally, Taman Manggis was meant for low cost housing. So what is the big deal? You have a willing buyer and a willing seller here. Price is not something that is fixed by law. It is the discretion of the seller and buyer.So what is the real issue here? Well the hoo haa is ...Noh Omar (BN-Tanjung Karang) waded into this fray, stating that this is similar to the corruption probe against former Selangor Menteri Besar Khir Toyo, after his controversial house purchase was raised in the Dewan Rakyat.Khir Toyo purchased the land and house in question at RM3.5mil, in contrast to the price of RM6.5mil paid for it by Ditamas on Dec 23, 2004.Khir Toyo was eventually found guilty of corruption. The court held that he committed a crime within his knowledge as a public servant in obtaining for himself and his wife two lots of land and a bungalow in Shah Alam.Lim Guan Eng tweets:In the later tweet, he said the house was only 30 years old.But is this an act of corruption or abuse of power? This we leave it to the authorities and the court to decide.So how much is a property nearby?A simple search on local property website iproperty.com.my shows a house within the same vicinity sells for RM3.36 million. But the land area of this house is only a mere 5,984 sqft.In comparison, Lim Guan Eng’s house is about 10,150sqftLet’s wait and see … for Lim Guan Eng to hold his press conference over this matter."
"Considering Consideration What is consideration? Consideration is one of the most important element for a contract to exist. It comes after elements of offer and acceptance which was discussed in earlier article respectively. It can be anything of value which each party must agree to exchange promises in order to make a contract valid. The Contracts Act 1950 governs it. Section 2(d) Contract Act 1950 “When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do so or to abstain from doing something, such act or abstinence or promise is called consideration for the promise Consideration for the promiseAli signs a contract to buy a car from Abu for RM 30,000. Ali’s consideration is the RM 30,000 and Abu’s consideration is the car.Thus, there is a valid consideration when the Ali pays a price to buy the car and Abu giving the car in exchange. Consideration ranges from payment of money to performance of an act. But, how do you decide whether it is legally sufficient? Is my consideration enough? S 26 (Explanation 2) - An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the court in determining the question whether the consent of the promisor was freely given. In simple language, it means that the consideration that you give under a contract in return for the promisor’s promise must be sufficient but it doesn't have to be adequate. For example, Celine promises to sell Chong a laptop worth RM3000 if Celine agrees to give tip on how to ask Maria for a date. This scenario shows there is sufficient consideration. But, the court will take into account the consideration involved when questions are raised regarding the sufficiency of the consideration in question. There are situations where a party to an agreement can enforce a promise even though there was no consideration from the party. These situations will be discussed later in the second part of this article. pic credit"
"Bloggers ... LHDN Wants You! Money on the netOf late we see that many have used the internet to generate income. Popular bloggers have monetized their sites. YouTubers are able to find sponsors who support their channel. Some are even able to make money using Twitter.Malaysia is not short of talented people who have used the internet for financial gain. Maybe we can call them Netrepreneurs!Tax on the net There are only 2 certain things in life … death and taxes – Benjamin Franklin If you have an income, you need to pay taxes. Blogging is a job or a business? The income you received from social media marketing activities such as blogging, YouTubing, etc. will be assessed as self-employed income. So yeah, you can tell people spending time on the net is not a waste of time. It can make money. So what sort of income is taxable? Here is a list of income that is taxable: Salaries Profits or gains from business, trades or professions Dividend profits or gains Interest Rent Royalties or premiums Pensions Annuities, periodic payments and other profits or income not listed You can’t escape the tax man!But you can claim tax relief Okay … you know we need to pay taxes but then again we are allowed to deduct expenses incurred with the business. Need to register as a business Oh yes ... don't forget to register your online businesses!"
"Do You Want to Be An MP? Representing my constituency If being an MP is your childhood dream, here is how you can be one. An MP is elected by Malaysian voters and you represents your constituency. You will be one of the 222 elected members of the Dewan Rakyat. Who can be an MP? Any Malaysian who is at least 21 years old is eligible to be an MP. Disqualifications for an MP If you hold an office for profit, then you would have to resign from it.You will not be eligible to stand in an election if you were sentenced of a crime in the last 5 years, which carries a prison sentence of more than a year or a fine of RM2000 and above. How much you will be paid? According to the Members of Parliament (Remuneration) Act 1980, and taking into account of last year’s amendment, you are likely to be paid RM16,000 per month.However, you can get an addition of RM5000 to include allowance for driver and travel expenses.You will also be paid additional allowance of RM200 per day for every Parliament session that you attend.How do I get into Parliament? The only way to be an MP is through a general election or by-election.You will have to contest in the general election to get into Dewan Rakyat as an MP.Otherwise, you can wait for a vacancy in Dewan Rakyat and stand in a by-election. There will be a vacancy when an MP dies, resigns or is disqualified. A new MP must be elected in a by-election within 60 days after the vacancy. What is an MP’s job in Parliament? Being an MP means being a part of this country’s law-making process. You will be taking part in debating bills introduced in Parliament. You can also introduce your own private member’s bill.As an MP, you will take an oath to discharge duty to the best of your ability, that you will bear true faith and allegiance to Malaysia and preserve, protect and defend the Constitution.""I, ..........................., having been elected (or appointed) to the office of .................... do solemnly swear (or affirm) that I will faithfully discharge the duties of that office to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution.""""I, ........................., having been elected (or appointed) as a member of the House of Representatives (or the Senate) do solemnly swear (or affirm) that I will faithfully discharge my duties as such to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution.""Interesting facts to knowTapping table - Parliamentarians tap their table when agreeing with an argument or point raised by another MP during a debate in Parliament.They also tap their table for any issues raised as their show of support.Malaysia could possibly have a hung Parliament. A hung parliament happens when there are equal number of MPs on both sides, with the government and opposition having 111 MPs each. Besides that, many MPs love to smoke in non-smoking areas within the Parliament building itself!pic credit"
"Be Considerate! Stealing disabled parking spots is on the riseLately, in the Klang Valley there has been a spike of cases where non-disabled drivers taking disabled parking spots. The lack of enforcement and with fake disabled stickers being available in shops only makes it easier for people to do so.This caused a lot of grief amongst disabled drivers in finding parking spots. Why is this problem cropping up?Most drivers think that they can get away with it without getting fined. It speaks volumes about our general civic-mindedness nowadays, which is almost nil.The current disabled parking sticker system is mostly based on trust. Sadly, the trust has been abused repeatedly by irresponsible drivers.How do other countries fare compared to us? UK: Blue Badge Parking Scheme The Blue Badge Scheme is a service for disabled people to park close to where they need to go.it is an offence for anyone to park at on-street Blue Badge parking spaces without a valid Blue Badge. Police officers and traffic attendants have the right to inspect Blue Badges. If you to fail to produce a badge for inspection, without reasonable excuse, you can get fined to maximum of £1,000.Australia: The Australian Disability Parking Scheme (ADPS)The ADPS features the nationally-recognised Australian Disability Parking Permit, with enhanced to reduce permits abuse. This permit is usable throughout all Australian states.In some states, illegal parking in disabled spots will land you a fine of up to AUD519 and demerit points on your driving licence.Meanwhile back here..The local authorities need to keep up to speed in enforcing the law on disabled parking, preferably with heftier fines. The lack of enforcement will only cause more drivers to blatantly take up the disabled parking spots.The whole disabled parking sticker system must be revamped. Disabled parking stickers must only be made available to legitimate disabled people*. This means, no more selling disabled stickers in shops.In the end, the law can only do so much. It is up to each and every one of us to take heed of the needs of our disabled counterparts. Remember, a society is judged by the way it treats its most vulnerable members.What kind of society do we want to be? *disabled driver or when ferrying a disabled passengerPic credits: glamox.com"
"Must A Shop Always Sell At The Displayed Price Tag? You walk into a shoe shop and see a pair of shoes on display that you always wanted on sale for RM50. The price is normally RM90. What a bargain! You take the shoes to the counter to pay for it. The shopkeeper tells you that the price is actually RM90 and that the staff put on the wrong price tag. You insisted on paying only RM50 for the shoes. He refused and would only accept RM90 for the shoes. Can he do that? Yes, he can.Why? Because the price tag isn't actually an ""offer"". It's classified as an ""invitation to treat"".The shoes on display are just an invitation for you to make an offer. You are making the offer if you take the shoes to the counter. The shopkeeper does not have to sell it to you. He can either accept the offer by taking the money and giving the shoes or refuse to do so. How do you define an invitation to treat?It can simply be defined as an invitation to make an offer.Advertisements (Partridge v Crittenden) are usually invitations to treat. In this case, Partridge published a newspaper ad stating he had birds available for sale. He was charged under the Protection of Birds Act 1954 for offering to sell protected species of birds. The High Court stated the ad was not an offer to sell but an invitation to treat.Goods displayed in a shop (Fisher v Bell) is also another example of invitation to treat.In this case, a shopkeeper displayed a flick knife on his shop window. He was charged with offering a dangerous weapon for sale. The court decided that the display was only an invitation to treat, and not an offer to sell. The difference between an invitation to treat and an offer An offer needs to be distinguished from an invitation to treat. An offer which is accepted leads to a binding contract.An invitation to treat is merely an invitation to make an offer and can’t be considered as part of a binding contract.An invitation to treat can not be accepted since it is merely an invitation for you to make an offer.So, if you want to get that pair of shoes you'll have to fork out the RM90 after all!Pic credits: thewindowlane.wordpress.com"
"Five Facts On The Royal Commission of Inquiry (RCI) PAS wants an RCI convenedRecently PAS has decided to seek an audience with the Council of Rulers to propose that a Royal Commission of Inquiry be formed to comprehensively investigate 1Malaysia Development Berhad, the RM2.6bil political donation, SRC International and other issues highlighted during the recent Conference of Rulers.The RCI had looked into with number of case involving public concern in the past. For example, they had produced their findings regarding Lingam's video clip and Teoh Beng Hock.1. What is the RCI ? The Royal Commissions are normally formed to look into matters of great importance and usually controversy. These can be matters such as government structure, the treatment of minorities, events of considerable public concern or economic questions.Although commissioners of RCI are normally ex-judges and it carries similarities with court, it is not a court. RCI is formed and governed by the Commission of Inquiry Act 1950.A commission's term of reference states the enquiry's objective and its subject matter. The Yang di-Pertuan Agong on the advice of the Cabinet determines a commission's term of reference,2. Who can convene the RCI? The Royal Commissions may be convened by the Yang di-Pertuan Agong and this is done with the advice of the Prime Minister. However, the Yang di-Pertuan Agong has the discretion to decide whether or not the inquiry will be held public.3. How is the RCI established?The Yang di-Pertuan Agong will determine the number of commissioners, the place and time when the inquiry will be held and its report submitted, and the manner the inquiry will be executed. Members of RCI are appointed by the Yang di-Pertuan Agong and they normally consist of retired judges.4. To whom RCI reports?The RCI conveys the findings in their report to the Yang di-Pertuan Agong. Their findings are merely recommendations and it will be up for the government whether to implement or not. 5. Is the RCI a court? The commissioners have the powers to receive all the evidences and examine all the persons regarding the matter in question. They also have the power to summon any person in Malaysia to appear before them to give evidence. However, RCI is only a fact finding body and not a court. It inquires and produce its findings in a report. However, findings of RCI can have serious consequences.Whether PAS will have a chance in getting the RCI convened or not is up for the Prime Minister, who then advises the Yang di-Pertuan Agong. Given the current scenario, it is unlikely for a RCI to be convened for these issues raised by PAS. Pic credit: Malaysian Outsider"
"Hey Partner! So, you want to start a partnership, eh?Well, here are some things you must know about partnerships before jumping into it!What is a partnership?Partnership is a relationship between two or more people doing business in common with the aim of getting a profit (s.3(1) Partnership Act 1961). The Partnership Act 1961 (PA 1961) regulates partnerships throughout Malaysia.How do you start a partnership?You can form a partnership through a written agreement or even orally. If it is written, you can create a partnership through a simple partnership agreement.The object of the partnership must be lawful. So, a partnership agreement to smuggle duty-free cigarettes is a big NO-NO!How long does a partnership lasts?You and your partner can decide on how long you want it to last.If there is no fixed time, any partner can end the partnership by giving notice to the other party — s.28(1) PA (partnership at will).What if your partnership continues after the fixed term has ended? The rights and duties of the partners remains the same (s.29 PA).How do I register with the SSM?Either you or your partner can register at any SSM counters or through e-Lodgement.You just need to complete Form A (Business Registration Form)You MUST register using trade name by filling in Form PNA.42 (Business Name Approval Form) and paying RM60 fee per year.You can register your partnership for one to five years.You'll get your Business Registration Certificate within 1 hour of payment.There you have it...You are good to go!"
"Malaysia’s Queens of the Court (Picture credit: Amirol Ahmad)Today, as we celebrate the International Women's Day, AskLegal takes a stroll down memory lane with a list of women who were the first in their vocation or field.Those who have forged ahead have achieved great things in their time and those who have just started their journey, we believe that you will be well remembered by all.Women who were first in MalaysiaPicture credit: merdekaaward.myTan Sri Lim Phaik GanTan Sri Lim Phaik Gan, known as P.G. Lim, (1915 – May 7, 2013), Malaysia's first female ambassador was a British-born Malaysian lawyer and diplomat. She was one of the first female lawyers to practice in Malaysia.Tan Sri Dato Seri Ainum Mohamad SaidTan Sri Dato Seri Ainum Mohamad Said, Malaysia's first woman Attorney-General. Ainum's appointment as A-G, succeeding the late Tan Sri Mohtar Abdullah, was welcomed by the legal fraternity.Picture credit: sabahkini.comTan Sri Siti Norma YaakobTan Sri Siti Norma Yaakob, is Malaysia’s first woman High Court judge, Court of Appeal judge, Federal Court judge and Chief Judge of Malaya. In 2007, Siti Norma retired after 43 years of exemplary service. She has served in the highest judicial office to be occupied by a woman in Malaysia, marking this as the most remarkable breakthrough for women’s achievements.Picture credit: nytimes.comSuraya Ramli and Rafidah Abdul RazakSuraya Ramli and Rafidah Abdul Razak, first female judges appointed under Malaysia's Islamic Shariah courts. Both were appointed Federal Territory of Putrajaya and Kuala Lumpur Syariah Court judge respectively in mid-May 2010 after receiving the consent of the Yang di-Pertuan Agong.Picture credit; thestar.com.myPn. Hendon bte Hj MohamedPn. Hendon bte Hj Mohamed, she is the first female President of the Malaysian Bar Council (1995 - 1996)."
"So You Want To Be A Lawyer? It was almost 3 decades ago that my mother informed me I will be going to the UK to read law. The news came the day after my final STPM paper. I just replied, ""Ok"". Mother says, son does. Was simpler back then, I guess. I recall, vividly, as I walked past the immigration counter at the airport, I turned around and saw her all teary eyed. But in my heart I was like ""Hey, I am off for an adventure!""It did not cross my mind as to what the career would hold for me. Get your law degree Going to the UK was the first step in my journey to being a lawyer, I need to have a recognised law degree. They call it the LL.B (Hons). Want to know where? Have a look at this list.Of course one may choose to study law in Australia, New Zealand, Singapore or Malaysia even. Many a great lawyer have graduated from local institutions such as Universiti Malaya, University Islam Antarabangsa or Universiti Kebangsaan Malaysia. Qualifying to chamber After completing 3 years of studies, I graduated with an LL.B (Hons). Now, it's off to the second step. I did not opt to do the UK Bar exams but rather the Malaysian equivalent called the Certificate in Legal Practice (CLP). Guess I missed out on joining one of the Inns of Court and going for those dining sessions. Yeah, the UK Bar students need to go makan. Joining the CLP course was 'fun'. You go in with the knowledge that the attrition rate is 80% (passing without having to re-sit a single paper, on your first outing). Only 1 out of 5 will make it. I was fortunate to have passed my CLP in the first sitting. You have to when family financial resources are very limited. Guess that was the incentive. Now its time to chamber Armed with my CLP, I commenced my 'chambering', as we call it in Malaysia. The proper term is 'pupillage'. Pupillage is a 9 month process where you have a lawyer, called a 'master', who takes you in and shows you the ropes of legal practice. There were late nights. Reading. Researching. Drafting. Even packing my master's bag. Making sure there are pens, pencils, highlighters etc. Ensuring all the photocopied cases are properly arranged. You master will 'enlighten' you. Hence, this is a very important period. You will pick up the proper habits if you have a good master. I was most fortunate to have one. I still remember him telling me, ""Did you check with the law books?"". Thank you Mr KH Koh. Yeah ... lawyers need proper libraries. All answers are found in the books. Pupillage was a good time. It was not only all work and no play. I recall many times where a few of us 'chambies' would stand by the corridors of the old Jalan Duta court house, watching the immaculately groomed female lawyers walk by. Boys will be boys. Get called to the bar Upon completion of your pupillage, if all is well, you will then be admitted to the Malaysian Bar.You are now almost a lawyer! Why 'almost'? Well, you have to pay for some fees first. Nothing comes for free right? You have to pay various fees as a member of the Malaysian Bar Council, you will require professional indemnity insurance and the the High Court will issue you the Sijil Annual, aka the practicing certificate.Once you have your Sijil Annual, you are now let loose into society as a lawyer. A member of the Bar. A member of one of the world's oldest profession. A noble profession. You are now a lawyer! So ... do you want to be a lawyer? I still do ... despite not practising law anymore. Life has taken me on a different course, a most colourful one. But, at the end of the day, I know I am still a lawyer at heart."
"Can You Legally Replace the PM? Lately, there have been calls to remove the Prime Minister (PM), the most recent one being the former opposition leader Anwar Ibrahim stating his support for individuals and political parties, which includes Tun Dr Mahathir and Tan Sri Muhyiddin Yassin, to remove him. Meanwhile, former law minister Zaid Ibrahim has proposed a gathering on March 27 to call for Najib Razak's resignation. Opposition leader Lim Kit Siang has confirmed that he met with both Dr Mahathir and Zaid Ibrahim to discuss on their bid to remove Najib Razak. Is it that easy to remove the PM from office? Before going on on how to remove the PM, let us briefly examine his role. The Prime Minister (PM) is the head of an elected government and handles everyday government affairs. He also advises the Yang di-Pertuan Agong on a number of issues and he leads his own cabinet which is made up of ministers. It is not easy to remove him, but it is possible to do so. ElectionOne way to remove the PM is through the general election. The PM is deemed to have lost the confidence of the people if he loses the election. Besides, the opposition will be the new government and thus a new PM comes from their party. Change within the PM’s partyThis is a common way to change a PM and it has happened before. Tun Abdullah Badawi resigned as UMNO President and was replaced by the current PM, Datuk Seri Najib Tun Razak. Usually, UMNO party members will vote in their party election to choose the party president. He will then head the Barisan Nasional alliance and be the PM of the country. Vote of no confidence An MP can propose a motion of no confidence in Dewan Rakyat against the Prime Minister. The MPs will then vote on the motion whether the PM have the majority support of MPs to continue hold his position as PM. He would have to resign with his entire cabinet if the motion is successful. Guilty or bankrupt The PM is also an MP. Thus he will lose his PM post if he is no longer an MP. An MP can no longer represent his constituency in Parliament if he is declared a bankrupt. He can also lose his Parliament membership if he is found guilty and punished by the courts (more than one year's’ jail or a fine of RM2,000 and above, or both). The Yang di-Pertuan Agong (YDA) The YDA can act on his own discretion to appoint an MP who, in his view, has majority support in Parliament as the PM. However, he has no power to remove the PM from his post. In the wake of the last Bersih 4 rally, IGP Khalid Abu Bakar's view, calling for the PM's resignation is illegal, may be misguided. Calling for the PM's resignation and doing an uprising are two entirely different things. (Pic credits: kwiknews.my)"
"When Employees Leave: Non-compete and non-solicitation clauses in employment contracts There is a growing impatience in the workforce today for an increase in earning power, career progression and for work-life balance. Gone are the days where the majority of employees stayed in one organisation for their entire careers. Instead, many now opt to switch jobs or to start their own businesses to achieve their desired career goals. This is particularly true for Gen-Y employees who have entered the workforce and who are now rising towards leadership positions in organisations. While still employed, employees are expected not to act in conflict with the interests of their employer. This would extend to being engaged, either directly or indirectly, in any competing activity, business or occupation without the prior written consent of the employer. However, what happens when the employee leaves the organisation? Can the employee be prevented from working with a rival organisation or from starting his own competing business? Can he be prevented from soliciting his former employer’s suppliers, customers or employees? Can the employee use information, skill or knowledge acquired by him during the course of his employment in his next employment or business? In Malaysia, generally, after an employee leaves the organisation, the employee may not be restrained from accepting employment with a rival organisation, nor can he be prevented from setting up a business in competition with his former employer. This is because section 28 of the Contracts Act 1950 prohibits any agreement which restrains a person from exercising a lawful profession, trade, or business of any kind. The intention of section 28 is to promote free trade and free movement of labour. There are three exceptions to the general rule of restraint under section 28 but none of which apply to an employee accepting employment with a rival organisation or setting up a business in competition with his former employer. While the employee can join a competitor or set up a rival business after he leaves the organisation, the employee can be restrained from disclosing confidential information obtained during his employment for his own or someone else’s use after the employment contract ends. Even if the obligation of confidentiality is not expressly stated in the employment contract, there is an implied obligation on the employee. The employee’s obligation of confidence includes the company’s trade secrets such as manufacturing processes, secret formula, customer and supplier lists, business strategies, specific needs and requirements of customers, and the status of on-going negotiations with customers. The skill and knowledge acquired by an employee in the course of his employment however are not considered confidential information, and a former employee is entitled to make use of such knowledge and skill acquired even after his termination. An employee can also be restrained from poaching his former employers’ suppliers, customers or employees after he leaves the organisation, provided that the non-solicitation restraints are reasonable and protect the legitimate interest of parties. These non-solicitation restraints however will not be implied into an employment contract if they are not expressly stated in the employment contract. Where an employee leaves the company and breaches his confidentiality or non-solicitation obligations, the company can bring an action against the employee, his new employers and/or the competing business that the employee has set up, and obtain the necessary court orders including injunctive relief to prevent the disclosure of the confidential information or solicitation of the former employers’ suppliers, customers or employees, and monetary damages. In some cases, employers, especially multi-national companies, even insert clauses in the employment contracts which prohibit their employees from using confidential information and breaching their on-going obligations with their previous employers. This is to avoid being embroiled in any unnecessary litigation or to condone such behavior by these employees who may be inclined to repeat such actions when they do decide to also leave the company. With the increase in mobility of employees today, both employers and employees should take the effort to be aware of their obligations to one another during the currency of the employment and after the employment has ceased. Employees, in particular, should also be careful not to be overzealous in using confidential information that they obtained during their previous employment in their new employment or business."
"Stop! This is the Police What if you're stopped by the police? You’re walking home one night, minding your own business. Then…A tough-looking guy wearing plain clothes suddenly came up to you and said “I’m a police detective. I want to ask you about something”Oh no! Your heartbeat goes faster and your face turns so white.. What should you do? Stay calm..and follow these steps:1. Ask for his police authority cardLet's look at his authority card colour..Blue means he’s at least an inspector.Yellow shows that he’s below inspector rank.White means he’s in the reserve police force.If it’s red, someone’s been a naughty boy! It means he’s under suspension. Keep on walking. He can’t do anything to you.2. If he asks for identification..Just give him your name, IC number and address. Nothing more, nothing less. You don’t need to give him your life story, you know!3. If he continues to ask you any other questions..It's no harm in answering if he asked you what you're doing here at night or where you're going, even if you’re not obliged to do so. Anything more than that.. Just take a deep breath and ask him calmly ‘Am I under arrest, officer?’If he says no, just excuse yourself and walk away. Decline his request to follow him to the police station or anywhere else.BUT..What if he’s investigating a case and thinks that you might have some information about it?Well, that’s a story for another day..Stay tuned next month, and stay out of trouble!Pic credits: mysumber.com, 1bp.blogspot.com, weethingtong.wordpress.com, pixabay.com"
"Nations Are Judged From The Way They Treat Animals (Pix Credit: weehingthong) The Malaysian Government has since passed the Animal Welfare Act 2015, a new comprehensive Act with heftier fines in the wake of several recent high profile cases. It was Mahatma Gandhi who was supposed to have once said that “the greatness of a nation can be judged by the way its animals are treated”. Animal abuse across the causeway.. In Singapore, Law Minister K. Shanmugam pledged in January last year that the Animal Welfare Legislation Review Committee had recommended that the maximum fine be quintupled and the existing jail sentence be tripled. Cruelty to animals then merited SGD10,000 maximum fine or maximum one year jail or both. In one case reported by the Society for Prevention of Cruelty to Animals (SPCA) in Singapore not so long ago, a dog was found to have suffered multi-organ dysfunction from an exceedingly- emaciated body condition. The dog, it was believed, was chronically starved or malnourished, possibly for months, according to a report by the Agri-Food and Veterinary Authority (AVA) after a post-mortem. The owner, a 76-year-old businessman, reportedly claimed that he had been “too busy” to take the animal to the vet although he noticed that it had been getting thinner by the day. and...in the land down underIn Australia, according to the RSPCA, many people believe that that penalties for animal abuse were not tough enough. The situation in the country was dramatized in one instance when three young men were caught in Seymour, Victoria, for capturing a young kangaroo and tormenting it for several hours. The men initially avoided conviction when they were put on good behaviour bonds and fined AUD850 to AUD2,500. The Office of Public Prosecution appealed and the men were convicted and had their fines increased. Meanwhile, in Malaysia.. On the home front, animal abusers, until recently, could be jailed up to a year and fined a maximum RM50,000. Those found with protected species, without a valid licence, can be fined up to RM50,000, jailed two years at a maximum, or suffer both penalties. A case last December in Subang, Selangor, illustrates the situation in Malaysia. In the “biggest and worst case of animal abuse” in the country, police and members of the Malaysia Independent Animal Rescue, acting on a tip-off in Facebook, found more than 100 animals in an unkempt bungalow, used as an illegal animal breeding facility. Inclusive of 80+ dogs, three cats, two geese, a few birds and chickens and a gibbon. Some were in cages while the rest were restrained. The yard was reeking with faeces. Needless to say, all the animals were severely malnourished, some had open wounds, many couldn’t walk, and some were blind. All needed urgent medical attention and treatment. The Malaysian Government has since passed the Animal Welfare Act 2015, a new comprehensive Act with heftier fines in the wake of several recent high profile cases. Offenders now face a minimum fine of RM20,000 to a maximum of RM100,000, 100 times heavier than under the Animal Act 1953 (amended in 2013), and possibly a spell behind bars. The new Act spells out cage-size requirements in pet stores and during animal transportation. It also covers neglect and mutilation. For further information on animal abuse please contact:"
"S£X On The NET Picture credit: jonahinthenineveh.comI remember my first time using the internet back in the early 90’s. There was a world of information and fun out there, right at your finger tips. There was iRC, Internet Relay Chat, a software where people could use to chat with other netizens from around the world.Then came VOIP. Now we can talk over the internet. Finally, we are introduced to the webcam. We can see who we are talking to now. Boy, was that good! Picture credit: postandcourier.comFast forward to today, and we see many opportunists on the internet who are unashamed to use it as a vehicle to facilitate some scam. Now, we have the latest internet term ... SEXTORTION.What is Sextortion? A form of sexual exploitation that employs non-physical forms of coercion by threatening to release sexual images or information to extort sexual favours from the victim. – Collins Dictionary Sextortion is a global problem“There is a growing number of sextortion victims in Hong Kong, Indonesia, Singapore, Philippines, United Kingdom and the United States with potential victims in Australia, Korea and Malaysia,” - Alan Purisima, Philippines Police ChiefThe story of Amanda ToddKnown for her haunting silent YouTube video, Amanda befriended an anonymous person on Facebook. There was much flattery, to the point that Amanda flashed her topless body to him. A year later her picture went viral, creating a mass of bullying and teasing, to the extent that she had to change schools several times. With her reputation ruined, having no friends and beaten up by some schoolmates, she attempted suicide but was saved at the last minute. However, a few months later, Amanda Todd succeeded in taking her own life.It was reported by the BBC, that a 35-year-old man was officially charged in April 2014, in the Netherlands, in connection with Amanda Todd’s suicide. According to the Canadian police, the unidentified suspect was charged with extortion, internet luring, criminal harassment and child pornography.Picture credit: scmp.com Sextortion cases in SingaporeCase 1: Preying on young single females, this cyber-fiend hunted in online chat rooms. Posing as a Caucasian expatriate working in Singapore, he initiated exchanging naked selfie and worked his way up to asking for sex. When rejected, he threatened to expose their naked photographs. The women relented and agreed to have sex.In reality, the predator is Mani Velmurugan, an Indian national working in Singapore. Mani was eventually charged for criminal intimidation.Case 2:Responding to private massage services offered online, the victim who engages the service will be trapped when he takes up the offer for ‘extra services’.The sextortion begins when the customer receives a phone call from the girl’s ‘father’ and is informed that the girl who provided the extra services is ‘only 16’, and that a police report will be lodged against the ‘pervert’ victim.To sweeten things up, the victim will receive a call from the ‘local police station’, informing that a police report has been lodged. The ‘police officer’ on the line will advice that it’s best to have the matter settled amicably between the victim and the girl’s father.In order to avoid embarrassment and criminal charges, the victim will then start to remit payment.The mastermind, Easudas Jason, was convicted of 40 counts of conspiracy to commit extortion and sentenced to 60 months imprisonment and 6 strokes of the cane.Sextortion cases in Malaysia Case 1:Muhammad Shazarul Ikhmal Rospisham, 20, pleaded guilty to an extortion charge and was fined RM4,000 for extortion by threatening to distribute nude photographs of a former girlfriend, an offence under the Penal Code. Case 2:Kelvin Chong, 37, met with a female Filipino on Tagged. He was smitten by her looks and she convinced him to show himself nude over the webcam.Thereafter he was blackmailed. Out of fear of embarrassment, Chong relented and sent the money to an address in Marikina City in the Philippines. But it did not stop there. The demands for money kept coming in.Picture credit: deeside.comMen are being targeted Of late, it has been noticed that men are frequently targeted as victims of sextortion.These cases are prevalent from Malaysia, to Singapore, to Hong Kong and the Philippines. These scams have also surfaced in the USA and the UK. York Regional Police (USA) are urging local males to beware of an online “sextortion” scam. - read more Hull (UK) men targeted in 'sextortion' selfie blackmail scam - read more Picture credit: blog.kaspersky.comSextortion an offence?The act of extortion is an offence under Section 383 of the Penal Code.If one were to take this further it can also amount to rape, as consent was not freely given. However, many in the enforcement agencies believe that it is easier to conduct a sting operation for extortion than to try to prosecute a case for rape.The police may also investigate the matter under Section 506 of the Penal Code, for criminal intimidation.Picture credit: denver.cbslocal.comMACC: Sextortion is corruption!Now, this is an interesting fact to note - According to Malaysian Anti-Corruption Commission (MACC), sextortion is a form of corruption. “I believe the victims don’t have any idea that they can report the crime to us… many people don’t know this. This may be because people always think that corruption only involves money… if victims of sextortion report the matter to us, we will carry out investigations immediately,” - Datuk Han Chee Rull, MACC Legal Research Division Deputy Commissioner Datuk Han added that only two cases involving sextortion have been received since 2009. ONLY 2 cases in 6 years. He said the low number could be due to a lack of awareness among victims that what they have encountered was a form of corruption.Picture credit: northernlife.caMCMC has its fair share of complains Based on total complaints received last year, we have records of 63 victims of online romance scams, with 33 in Kuching, 26 in Miri and four in Sibu. Most of them are male victims - MCMC Outreach and Engagement Division Senior Director Eneng Faridah Iskandar Is protection required? It is most important that parents and users of the net better understand the world that they are surfing in. There is a need to protect yourself in cyberspace. In Singapore, TOUCH Cyber Wellness works with the National Crime Prevention Council in developing an online wellness game for children. SingTel has also engaged TOUCH Cyber Wellness in developing the mobile app called notAnoobie for parents to promote the safe and responsible usage of the internet and digital technologies.We may have all the online games or apps to educate, but perhaps it's time that common sense prevails. A good dose of common sense will be a great cure for this sextortion epidemic."
"TMI Can Take Blocking Issue to Court TMI can be expected to file an application for leave to commence Judicial Review proceedings against MCMC. COMMENT It came somewhat as a surprise on Thurs when news emerged that the Malaysian Insider (TMI), part of The Edge Media Group, had its website blocked without any warning whatsoever by the Malaysian Communications and Multimedia Commission (MCMC). It was much later that the TMI Editor Jahabar Sadiq learnt that his website had been blocked for uploading ""unverified"" content.Earlier, speculation had been rife in the market that The Edge (TE) wanted to let TMI go and that certain interests close to the powers-that-be were interested, given that the mainstream media was facing declining circulation and revenues amidst credibility issues.The TMI website can still be accessed through Applications like Betternet but that does not help ease the tension created by the blocking. TE, as a matter of principle is likely to take the matter to Court. TE, when The Edge Weekly and The Edge Financial Daily were suspended last year for three months, took the matter to Court. The High Court lifted the suspension on the grounds that the Home Ministry did not comply with its own procedures. The TE was, at last count, taking the matter to Court again for loss of business, revenue and goodwill.TMI can be expected to file an application for leave to commence Judicial Review proceedings against MCMC. The authority won't be able to claim that its procedures did not call for the TMI Editor to be informed before the blocking action took place. Also, it won't be able to claim prerogative and discretionary powers in the matter. Prerogative and discretionary powers are not absolute if abuse can be proven on the part of the authority. There's case law from Raja Azlan Shah on this.An interesting aspect here is the ""unverified content"" in TMI which the MCMC claims led to the website's blocking. It's difficult to see how MCMC can make the case for blocking TMI by falling back on the ""unverified content"" claim which, for want of a better term, would qualify as the proverbial fig leaf. Many from the independent media feel more than likely that ""unverified content"" was euphemism, disguised as a mantra, to bar the media from reporting on alleged wrongdoing in government and in the ruling party, as pointed out by a human rights advocate.Editor's note: The Malaysian Anti-Corruption Commission (MACC) Operations Review Panel (ORP) chairperson Hamid Bugo today denied the committee believed there was enough evidence to prosecute Prime Minister Najib Abdul Razak. ""The panel also did not conclude that the MACC investigators had collected sufficient evidence to prove a prima facie case against Najib. We wish to state that no anonymous source is authorised to speak for and on behalf of the panel under any circumstances. In any event, we hereby expressly disassociate ourselves from all such statements attributed to the anonymous source."" - Hamid Bugo Source: malaysiakini.comThe MCMC, as he stressed, has to explain what it means by ""unverified content"". ""It seems to be implying that it's able to read minds and conclude that the 'unverified content' had not indeed been verified and was therefore 'unverified',"" said the human rights advocate.He sees some parallels here between the MCMC action against TMI, Article 145 (3) of the Federal Constitution, and the ""I am not joking"" statement by Attorney General Mohd Apandi Ali not so long ago on proposed amendments to the Official Secrets Act (OSA).Even if the High Court orders the unblocking of TMI on procedural grounds, there's a case for going further by getting the Federal Court's interpretation on the intention of Parliament when framing the MCMC Act and the OSA and the intention of the framers of the Federal Constitution on Article 145 (3) and related matters.The intention cannot be to facilitate, allow or assist in covering up wrongdoing and/or sweeping them under the carpet, as pointed out by the human rights advocate.Pix Credit: malaysiakini.com"
"​5 Things You Need to Know About the MACC Fighting corruption The Malaysian Anti-Corruption Commission (MACC) has surrounded itself with plenty of controversies in the past or present. However, the MACC is our very own commission that fights corruption and protects the country’s well being. One of their success stories is where their investigation helped to convict former Selangor Menteri Besar, Dr. Mohamed Khir bin Toyo of corruption. You are protected when reporting to MACC If you do have information regarding corruption then you should not be afraid of disclosing it to the MACC. The Whistleblower Act 2010 protects whistleblowers who disclose informations relating to acts of corruption to the MACC. Whistleblowers are protected when disclosing information. Meanwhile, the Witness Protection Act 2009 provides legal and formal protection program for witnesses who fear for their safety and security during an investigation and prosecution of a corruption case. Check and balance mechanism There are five external independent bodies to monitor the MACC's roles and functions. These five bodies are: Anti-Corruption Advisory Board (ACAB) Special Committee on Corruption (SCC) Complaints Committee (CC) Operations Review Panel (ORP) Consultation and Corruption Prevention Panel (CCPP). They are represented by senior ex-government officials, politicians, academicians, lawyers and public figures who ensure that the MACC performs its duties in an independent, transparent and professional manner. Offenders Corruption Database The MACC website stores data on those who are convicted for corruption and it will be made public after 3 years. It serves as a deterrent and sends a clear signal against corruption. Future employers also can conduct their due diligence before hiring, promoting or appointing their employees. Type of corruption offences that the MACC investigates The MACC investigates four main offences under the MACC Act 2009 which are as follows: Soliciting/Receiving Gratification (Bribe) [section 16 & 17(a) MACC Act 2009] Offering/Giving Gratification (Bribe) [section 17(b) MACC Act 2009] Intending to Deceive (False Claim) [Section 18 MACC Act 2009] Using Office or Position for Gratification (Bribe) (Abuse of Power/Position) [Section 23 MACC Act 2009] How to contact the MACC? MACC makes it easy for anyone who wish to report corruption or disclose information on corruption. One of easiest way is by doing it online and it can be done through their website. You can also call the MACC hotline at 1 800 88 6000 or walk into any of their office nationwide. The old-fashioned way of fax and SMS is available too. You can fax at 03-8889 4239 or SMS at +6019-6000-696 . You can e -mail them at info@sprm.gov.my . Refer here for MACC branches/offices address to write in."
"How to Get Away with Murder? Robbery gone wrong An attempted robbery of a clinic went wrong and one of the robber was shot dead. He was shot in the buttock by a Tan Sri who happened to be seeking treatment at that clinic.Here, the Tan Sri escaped with a self-defense claim.The reason is simple. Two robbers armed with machetes charged him and he shot them to save himself. He even sustained slight abrasions on his stomach when one of the robbers tried to slash him. It is a clear fact that the robber did intend to seriously harm the Tan Sri or perhaps to kill him.But, do you have the right to protect yourself? What does the statute say? Section 100 of the Penal Code states that anyone who faces the risk of death, rape or grave injury by actions of his or her attacker, has the right to protect him or herself even if it results in death of the attacker. The statute gives you a right to protect yourself even if it results in the death of the attacker. However, you will only avoid criminal charges if the court finds that you aren’t the aggressor and reasonably believes that force was necessary in the situation. The proportionate amount of force needed in this situation will be interpreted by the court.Otherwise, you could walk free from any charges if the prosecution decides not to charge you in court.Proportionate amount of force The vague part that caught many people unaware is the proportional amount of force needed. To put it simply, you can’t use deadly force to stop non-deadly attack.In that situation, the Tan Sri was attacked with a machete, a deadly weapon, and he retaliated with a gun shot to save himself. Both the machete and gun are considered deadly weapons and the force used might be proportional. Thus, this raises the question on what amounts to proportionate amount of force. Court’s position on proportionate amount of force Public Prosecutor vs Manap states that the accused was not entitled to private defence as the retaliation he made was on a much larger scale and more serious that could possibly be justified. The court will take into consideration whether the defendant should have known that the force would likely result in serious injury or death. If court interprets that the amount of force used is appropriate, then the defendant will walk away free. How the court interprets the situation will depend on the degree of imminent harm and whether deadly force is necessary in that situation. It is assumed that you have a duty to retreat when defending yourself against the attacker. After he was overpowered, it would be unfair to continue attacking the attacker. The use of force is unnecessary once the attacker is overpowered. Otherwise, you will end up as the attacker and criminal charges can be brought against you. If he is dead then you might end up with a murder or manslaughter charge.ConclusionIt is for the prosecution to decide on whether to charge an offence under murder or manslaughter, depending on the facts of the situation. If they find there’s intention on your part and enough evidence to charge you for murder, they will do so.In most cases, they tend to reduce the charge to manslaughter and thus avoiding the mandatory death sentence.However, the truth is you can’t kill someone as you like. If you end up killing someone in self-defense, it will be for the court to interpret the proportional amount of force used and decide on it.sourcepicture credit"
"Legalising the Illegal: Street Racing Let's legalise illegal racing Federal Territories Minister, Datuk Seri Tengku Adnan Tengku Mansor, announced today the government will hold legal street races to counter the growing number of illegal motorcycle racing problem that has sprung up. He said a large number of Malaysians turned to unsanctioned racing because it offered economical thrills. - themalaymailonline.com Picture credit: forum.lowyat.net They are now 'Mat Motor' Tengku Adnan goes further to call them Mat Motor rather than Mat Rempits. As we know the name Mat Rempit have a lot of negative connotations.Picture credit: gtcitygrandprix.comStreet Circuits of Kuala Lumpur ""We don't want illegal racing but we want them to race in a specific place. If they want to race, it's okay but we give them a place where we can control with safety barriers and all,"" - Datuk Seri Tengku Adnan Tengku Mansor Now the idea is to turn some streets of KL into a makeshift circuit. Great to see that Tengku Adnan has considered safety to be factored in. But I wonder how much will be spent in turning the streets into something safe enough to race on.There are kerbs to be considered. Traffic lights and lamp posts are something that a biker does not want to 'argue' with. Even cars will lose to a tree that measures a mere 10"" in diameter. The problem with illegal street racingMany in the automotive media have written about illegal street racing. Many have come to a conclusion that despite all the enforcement by the local police, illegal racing has been very difficult to curb. Here are some articles:Road & Track - it's about the adrenaline rushPolicemag.com - the culture of unlawlessnessCNN.com - addiction to the rushLegalising illegal racing is not that simpleStreet racers are not professional drivers and have never been formally trained. There is no chance for them to practice. They rely on their limited experience at high speeds and their adrenaline to get them through the race. Also, their vehicles have been modified beyond the manufacturers’ standards and engineering specs. The result of a racer pushing the capabilities of his or her vehicle can be a blown engine or a ton of sheet metal hurtling out of control into a crowd. - Joseph Petrocelli Picture credit: funnymalaysia.netWho else wants to legalise street racing?So far there has been no country that has proposed the curbing of illegal street racers by turning our streets into race circuits. Authorities around the world, mainly police and enforcement departments, have proposed that private circuits be set up for these racers to 'menace the roads'.In the US, local enforcement agencies such as the police will set up a drag strip. They will then meet with the local racer boys and argue it out on the drag strip.Such activities are deemed as a great success in allowing the racer boys to have a place to do their stuff safely whilst maintaining a rapport with the police departments.One thing I can say ... those police officers can tune their cars to an absurd level. Best part is this ... the money comes from their own pockets! Not departmental budgets.How are other countries managing this problem?Recognizing that illegal street racing constituted a dangerous and costly problem, the Kent Police Department (USA) committed itself to reducing illegal street racing within its borders. The department partnered with state and local law enforcement agencies, private property owners, local businesses, and the insurance industry to develop a high-profile enforcement action plan known as Curb Racing and Achieve Safer Highways, or Crash. - policechiefmagazine.orgWhere can our new Mat Moto go and race? There are simple fun tracks in Malaysia that can be used, let's look at some tracks that are available:Sepang International Circuit - this is our best track but one full day's racing for the whole track costs in the region of RM80,000 in rental. Maybe a night race for these boys to cool off?Elite Speedway - this track is actually a go-kart track but is being used by smaller cars for semi-drift style events or even motorbike races. It is very popular among motor sport enthusiasts.Melaka International Motorsport Circuit - located at Ayer Keroh, Melaka, this will be most fun. This is a small track dedicated for cars, now this will make it even more fun for the kapcais.Putrajaya - well ... as we know Putrajaya is a very quiet place after 8pm. Maybe we can turn that into a track? As it is they already host Formula-E races there!Have your say ... we are all ears!So what say you? Hit us with a reply as to what you think about Tengku Adnan's plans to legalise illegal racing."
"RASUAH SEKS SEBAGAI SATU GANGGUAN SEKSUAL DI MALAYSIA Picture credit: rudnermacdonald.comGangguan Rasuah Seks di MalaysiaKewujudan rasuah seks sudah lama berlaku dan ianya merupakan salah satu bentuk gangguan seksual selain daripada mencabul kehormatan, liwat dan sebagainya. Rasuah seks sebenarnya boleh berlaku di mana-mana tempat tanpa mengira jantina, peringkat umur dan juga status seseorang individu iaitu lelaki mahupun wanita.Rasuah seks juga boleh berlaku dalam pelbagai cara iaitu melalui perkataan, tingkah laku dan lain-lain yang boleh menunjukkan ajakan, perbuatan (actus reus) dan niat (mens rea) seseorang itu untuk mendapatkan habuan seks. Kebanyakan kes rasuah seks melibatkan kaum wanita berbanding lelaki kerana sifat wanita cenderung menjadi lemah dan mudah di pengaruhi apabila menghadapi tekanan. Gangguan seksual dari sudut perundangan Dari sudut perundangan, gangguan seksual merupakan diskriminasi gender yang melibatkan dua jenis tingkah laku iaitu; (a) “Quid Pro Quo Harassment” apabila gangguan seksual di tempat kerja ini melibatkan ancaman seks atau rasuah seks yang dijadikan syarat bagi mendapatkan keistimewaan layanan berkaitan pekerjaan atau digunakan sebagai asas dalam membuat sesuatu keputusan dalam organisasi, dan (b) “Hostile Environment Harassment” pula merujuk kepada tingkah laku seperti jenaka seksual, komen yang menyentuh dan menganggu keupayaan seseorang individu untuk melakukan kerjanya sehingga boleh menimbulkan ketakutan, prmusuhan atau menyinggung kepada persekitaran kerja. Keadaan yang sama di terima pakai dalam perundangan Malaysia, seperti Kanun Keseksaan dan Akta Pekerjaan 1955 (pindaan 2012). Apakah definisi rasuah?Perkataan ""Rasuah"" tidak diberi definisi di dalam undang-undang Malaysia. Seksyen 2 Akta Pencegahan Rasuah 1997 [Akta 575] yang in pari materia dengan Seksyen 3 Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 [Akta 694] di bahagian tafsiran, kedua-dua Akta ini tidak terdapat perkataan “rasuah” secara khusus tetapi hanya menggunakan perkataan suapan. Berdasarkan kepada kes-kes yang telah diputuskan oleh Mahkamah sebelum ini, boleh dirumuskan bahawa rasuah seks boleh di tafsirkan sebagai maksud “suapan” walaupun takrifan suapan tidak menyebut perkataan “rasuah seks” secara khusus. Di manakah jenayah rasuah seks berlaku? Jenayah gangguan seksual di tempat kerja boleh berlaku melibatkan jantina berlainan dan jantina yang sama, dan antara ketua jabatan atau syarikat dengan pekerja bawahan, antara rakan sekerja, pekerja dengan pelanggan atau sebaliknya.Rasuah seks sebagai satu bentuk gangguan seksual, boleh juga berlaku dalam sektor awam dan sektor swasta,di institusi pendidikan, di jalanan dan di tempat persendirian. Namun begitu senario gangguan seksual yang berlaku pada sekarang sangat pelbagai termasuk termasuklah kes-kes jenayah yang melibatkan rasuah seks. Pencegahan rasuah Seks Pencegahan kesalahan jenis ini mengguna-pakai Akta Pencegah Rasuah 1961 (Akta 57), Akta Pencegahan Rasuah 1997 (Akta 575) dan Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009. Di Malaysia, terdapat beberapa kes (Akta 694) melibatkan rasuah seks. Antaranya ialah Public Prosecutor v Md Ali Jaafar [1997] 2 CLJ Supp 150; [1998] 4 CLJ Supp 208, di mana tertuduh iaitu Md Ali Jaafar telah dihadapkan ke Mahkamah Sesyen Melaka dengan dua pertuduhan rasuah seks daripada seorang perempuan. Kes Bakri Mohamad Ali v PP [2010] 1 CLJ 610, tertuduh didakwa di Mahkamah Sesyen Ipoh dengan dua pertuduhan iaitu pada 28 Ogos 2001, tertuduh telah secara rasuah meminta bagi dirinya suatu suapan, iaitu habuan seks daripada Noor Hayati bt. Yusop yang merupakan suatu kesalahan di bawah seksyen 10(a)(aa) Akta Pencegahan Rasuah 1997 (Akta 575). Kes rasuah seks yang terkini dilaporkan berlaku di Kedah apabila seorang Pegawai Tadbir di Lembaga Kemajuan Wilayah Kedah telah dihadapkan ke Mahkamah Sesyen Alor Setar pada 2 Disember 2014 atas pertuduhan meminta dan cuba memperoleh layanan seks sebagai dorongan untuk membantu meluluskan permohonan rumah di bawah Projek Perumahan Rakyat Termiskin di negeri tersebut.Kesan jenayah rasuah seks terhadap mangsa Memandangkan jenayah rasuah seks adalah sebahagian daripada gangguan seksual, maka kesan perilaku jenayah ini adalah sangat memberi kesan yang mendalam kepada mangsa. Antara kesan-kesan rasuah seks ialah berlakunya gangguan ke atas emosi dan fizikal mangsa. Kesan ini adalah secara langsung berkaitan dengan tekanan emosi yang dialami oleh mangsa rasuah seks. Mangsa yang selalu menerima permintaan mengadakan hubungan seksual daripada pegawai superior selalunya akan berasa tertekan sehingga hilang selera makan, sakit kepala, gangguan tidur dan perasaan cemas. Selain itu, mangsa juga akan mengalami tekanan dari segi faktor kewangan khususnya apabila kes rasuah seks berlaku di tempat kerja. Mangsa yang enggan menuruti kemahuan pihak superior untuk mengadakan hubungan seksual akan menerima ugutan jenayah yang lain seperti akan diberhentikan kerja, akan diturunkan pangkat, tidak diberikan bonus, dinafikan hak untuk maju ke depan dan lain-lain. Oleh itu, mangsa yang trauma akan bertindak untuk tidak hadir ke tempat kerja seterusnya meletak jawatan. Akibat daripada faktor ini maka mangsa akan hilang punca pendapatan bagi menyara keluarga atau membantu suami dari segi kewangan tambahan. Kesan jenayah rasuah seks terhadap ekonomi sejagat Akhir sekali, kesan global yang boleh dikaitkan dengan jenayah rasuah seks ialah kesan ekonomi sejagat. Setiap tahun, beberapa organisasi mengalami kerugiuan berjuta-juta akibat ketidakhadiran pekerja, produktiviti yang rendah, moral yang rendah, dan kos undang-undang sangat tinggi yang berpunca dari masalah gangguan seksual. Ekonomi negara juga merudum kerana mangsa boleh bersara awal dan kos pampasan/ganjaran/insurans yang lebih tinggi. Rasuah seksual juga boleh memberi kesan kepada hasil kerja.Kata penutup Justeru itu, isu rasuah seks walaupun secara senyap tidak boleh dipandang remeh dan sepatutnya isu ini perlu diberi perhatian yang secara meluas terutamanya kepada kaum wanita yang mudah terdedah kepada jenayah ini. Bagi memastikan bahawa isu ini dapat dibanteras sepenuhnya, maka adalah perlu suatu mekanisma perundangan yang lebih berkesan terutamanya keperluan kepada tafsiran yang lebih spesifik terhadap rasuah seks sama ada dalam kes jenayah atau kes tuntutan sivil di bawah undang-undang pekerjaan.Fieza Fazlin & Rohani A Rahim (UKM)"
"I Want to Get This Car! What is a valid acceptance under contract law? Last time, we talked about valid offers. Let’s find out what is a valid acceptance.Abu offered his Lexus for RM80000. You agreed and paid him the money, in cash. Is this a valid acceptance? YES it is. Why is that so? There are four reasons why it is so.. Four points of valid acceptance A valid acceptance must be:1. absolute and unconditional (You gave Abu RM80000)What if... you said you'll buy it for RM75000? That's not unconditional acceptance. That’s called a counter-offer and it destroys his original offer (Hyde v Wrench [1840])2. said to the person making the offer (You said yes to Abu)Section 2(b) Contracts Act 1950: when someone who received the offer communicates his agreement, this offer is considered accepted.3. made in a reasonable time limit (You accepted the offer immediately when meeting Abu) Section 6(b) Contracts Act 1950: if acceptance is not made within the offeror's specified time frame or within a reasonable time, the offer is deemed to have been revoked once the time has lapsed. What if... you didn’t respond immediately? He asked you to think about it and get back to him soon. Two days later you accepted his offer. That would be a valid acceptance.What if... it's twenty weeks weeks later? That’s an unreasonable lapse of time and the offer is revoked automatically.4. accepted according to instructions or in any other reasonable way (You paid cash to Abu)Section 7(b) Contracts Act 1950: acceptance must follow the offeror's stated method of acceptance. If he does not specify any method, the person receiving the offer must accept using a reasonable method.If Abu asked for cash when selling the Lexus, you must pay him cash. If he didn't mention on how you should pay, you can also use cheque or bank transfer. Final thoughtsJust remember these four points and you won't go wrong when accepting an offer.Enjoy driving around in your new Lexus!Pic credits: wikimedia.org"
"Bangla-Fever Alarming Picture credit: thefinancialexpress-bd.com Xenophobia and racism in Malaysian society have reached a feverish pitchOver the last week as I logged into Facebook, I am constantly reminded of the importance of Bangladeshi workers for Malaysia. Many who commented about the situation have posted shocking remarks.Remarks like: they will rape our women, they are stupid and low class, keep your daughters indoors, they will screw a cow in a skirt (yup, I read this one), they will marry our women, kill them all.Racism definedthe belief that all members of each race possess characteristics or abilities specific to that race, especially so as to distinguish it as inferior or superior to another race or races Xenophobiaan unreasonable fear or hatred of foreigners or strangers or of that which is foreign or strangePicture credit: ohpi.org.auWho do we blame? Yes, let's see ... Being typical Malaysians we can blame the government for importing foreign workers because employers would like to have cheap labour. We can also blame the opposition because they raised the alarm of 40,000 foreign workers, who will be voting in GE13. We can go on blaming and no solution is found. Picture credit: sauer-thompson.comTruth be told, Malaysians only have themselves to blame. Why? Because there is no one else to blame for racism other than ourselves. I look forward to the children of any one of you, who might be studying in the UK, US, Australia or anywhere else, and who might need a weekend job to supplement the week's groceries being called a 'coon, spik, 'wog, paki or chink' by a local population too high and might to do the work in the first place - Eddin KhooA confused nationWhilst many scream that we are being oppressed and racism is a government institution, they somehow end up oppressing others or keep silent when oppression is taking place.Politicians need to put an end to such racism. To date, none have waded into this matter. Politicians who are very internet savvy, who know how to use apps like Facebook and Twitter to boost their political agenda, seem to have missed this Bangla-fever.Need for anti-racism legislationAnti-racism legislation is needed now more than ever, seeing that Malaysians are willing to oppress another nationality. Anyone who is politically aware is very familiar with the allegations of racism within our nation. One race says this, the other race says that.Maybe its time to ensure that the 'who says what' game stops. Anti-racism legislation will put an end to many of our problems. It will bring back harmony.When we are abroad, we dislike being stereotyped, we share videos about Islamophobia in the West on a daily basis. But it is embarrassing that we do the same thing in our own land - Syed SiddiqPicture credit: nationalunitygovernment.orgAnti-racism laws, who has it?Here is a list of a few countries with strict anti-racism laws that many opponents say 'stifles criticism'. But it is the law, so live with it.United KingdomThe Public Order Act 1986 – inciting racial hatred is an offenceEquality Act 2010Hong KongRace Discrimination Ordinance - racial harassment is an offenceAustraliaRacial Discrimination Act 1975 - treating someone less fairly than someone else in a similar situation because of their race, colour, descent or national or ethnic origin is an offenceNew ZealandHuman Rights Act 1993 – an offence to incite racial disharmonyWhy is the Bangladeshi here?This really puts things into perspective.Picture credit: sukhbirism.com"
"Help! How Do I Survive Law School? Five Things to Do In Law SchoolGoing to Law School can be a very scary experience. But, don't worry, here’s some tips to help you survive law school!1. Don't be afraid to ask questions You don't understand a thing on what your lecturer just said in class? Well, if you're really completely lost, then we understand your not wanting to stick your hand up in front of everyone to ask a question that may make you seem too clueless.. But there's always an easy solution to not wanting to appear like the class dunce. After class hours! Don't be afraid to knock on his door and have a chat. Lecturers do sit in their rooms for at least part of the day and (usually) won't mind a student popping in for a quick question. You'll preserve your reputation among your mates. And, don't worry your lecturer won't eat you alive for admitting that you're lost in the class!2. READ your textbook!You think you'll survive by just relying on lecture notes? No way... Like it or not, you will have to get used to reading extra thick books if you want to understand your subjects well. *Note: Wrists have been sprained (literally) doing this before. Take caution. We assume no responsibility on injuries that may occur.3. Spend time preparing for your classesYou got the reading list for your next lecture. DO NOT IGNORE IT.Make sure you read it all before you attend lectures. You'll get more out of your lectures that way.Besides, though the reading lists may seem long, very often it's pretty much just a 1/2 hr skim through. Yet, it makes a huge difference -being prepared for the lecture VS blank vacant stares at the lecturer, which will later (around assignment submission time) be accompanied by frantic panic to make sense of the incomplete lecture notes that you've made.4. Be active during tutorial sessionsThis is where you learn on how to speak up and give your opinions. Don't be afraid of getting the answers wrong. Your tutor is there for a reason, to guide you.Better to ask 'stupid questions' in the tutorial session than to give stupid answers in the exam hall!5. Join a study group Choose the right study group and it'll help you learn about stuff faster. Even if you think you've got it all under control. Besides, it's good to get to know your classmates! Study group is about studying, not gossiping. Also, WhatsApp study groups is not what we are talking about.Follow these tips, and you'll be on the right track.NOTE: The author survived Law School (barely!), both as a student and teaching staff, in three different continents.Pic credits: thedroidlawyer.com, wikimedia.org, edulinkfin.weebly.com, flickr.com, pixabay.com"
"How Often Do Couples 'Do It' in Malaysia? The Results Are In! On the heels of Valentine's Day, we're dismayed to announce that there's a divorce every 10 minutes in Malaysia Khoo Kay Peng & Pauline ChaiWhen Malaysian billionaire Khoo Kay Peng did not comply with the terms of a financial commitment to Pauline Chai (see pix), his wife and a former Miss Malaysia, the Court in London issued an order, not so long ago, to forcibly transfer RM780, 000 from his account to hers. A judgment debtor summons proceedings, that could have put Khoo in jail, was deferred.At that time, the divorce settlement had not been reached. Finally, push came to shove and this is what has now happened: http://www.expressandstar.com/news/uk-news/2016/02/12/laura-ashley-boss-ordered-to-make-settlement-offer-in-titanic-divorce-battle/ Mahmud Abu Bekir TaibIn the case of Mahmud Abu Bekir Taib, the son of Sarawak Governor Taib Mahmud, he offered an out-of-court divorce settlement last May, in response to his ex-wife Shahnaz A Majid’s matrimonial claims. The offer came a day after the Kuala Lumpur Syariah High Court ordered him to declare his assets. Zheng Zhuan Yao @ Tay Chuan Yao In another case in neighbouring Singapore, the ex-husband preferred to go to jail rather than pay his ex-wife. He’s unlikely to be able to get away with non-compliance and/or violation. These cases are just the tip of the proverbial iceberg. In Malaysia, there’s a divorce every 10 minutes according to 2012 figures where 56,760 divorces were recorded in the country, as collated by http://rage.com.myh/divorce-on-the-rise.According to the website, the reasons for divorce especially among the young range from: ""Divorce? No big deal!"" to “I come first”; ""Girl power: Having the guts to divorce""; and 30 is the new 20.So, if anyone is thinking about divorcing his or her partner, it would be worthwhile thinking over what’s at stake.Common MistakesThe consensus of opinion is, remaining in the dark about the money side is the biggest mistake among those considering going separate ways. If one party has always handled the finances, the other party will be at a disadvantage in Court. That was clear in the three cases illustrated.Here’s a list of common mistakes put together after consulting various sources: not considering mediation; hiring a combative lawyer to punish the spouse; failing to recognise the common enemy i.e. the Inland Revenue Board; not producing an accurate budget; disregarding the impact of taxes in a divorce settlement; failure to evaluate settlement proposals; being emotionally attached to assets in divorce negotiations; over-using the divorce lawyer; settlement offers that look too good; disregarding the longterm impact of inflation; failing to consider the spouse’s eligibility for retirement and social security benefits; forgetting to update estate documents; failure to adequately insure the divorce settlement; and failure to develop a post-divorce financial plan. It was the writer Somerset Maugham who observed: We are not the same persons this year as last; nor are those we love. It is a happy chance if we, changing, continue to love a changed person. Looking for advice on your marriage issue? Find out more at:"
"“Donation"" under Enquiry in the Malaysian Anti-Corruption Commission Act (MACC) Act 2009 ""In Malaysia , there are no laws that prevent political parties to receive donations from their supporters,"" – Politician The scourge of corruption The World Bank in 2004 proclaimed that corruption was ‘the single greatest obstacle to economic and social development’. High and rising corruption is associated with higher income inequality and poverty. Corruption is extensively identified as a perilous problem for developing economies, and is viewed as a priority issue by international organisations and donors. Governments place anti‐corruption high on their policy and strategic agenda. What is happening at home? Government of Malaysia's stance has been, from the beginning of its nationhood, to be always alert in addressing corruption, abuse of power and/or malpractices and its various threats to the nation. This policy is reflected in its various penal, civil and administrative rules, regulations and laws that safeguard public law and order, as well as upholding integrity, transparency and accountability of the government machinery and those of the private sector.No gratification for officials and officersBy looking at Section 3 of the Malaysian Anti-Corruption Commission Act (MACC) Act 2009, it defines the Prime Minister, members of the cabinet and all parliamentarians as ""officers of a public body"" by virtue of them being ""members of the ‎administration"" or ""members of State Legislative Assembly"" or ""officers of government of Malaysia or state governments"", all are prohibited from receiving any form of gratification.Observing donation as an element in corruption actWhat is corruption? Bribery and corruption as an act “Giving or offering any reward to any person to influence his conduct; or the receipt of such reward” - Concise Law Dictionary, P.G. Osborne the Taking or giving of money for the performance or non-performance of a public duty” - John B. Saunders, Mozley and Whiteley 's Law Dictionary What is gratification?The interpretation of gratification has been given under section 3 of the MACC Act 2009, where the “gratification” means (a) money, donation, gift, loan, fee, reward, valuable security, property or interest in property being property of any description whether movable or immovable, financial benefit, or any other similar advantage. Political donations are unregulatedHowever, there is no specific meaning or interpretation of “donation” given in the same Act. There is also no definition of the term “political donation” in the Societies Act 1966 and neither is there any legislative prohibition for any political party to accept so-called political donation from any individual or organization. No limits set out by statute on amountCurrently, there are also no limits to the amount of “donations” political parties and candidates can receive from special interest groups, making it possible for some of the donations being channeled directly to individual politicians instead of their party.What kind of donation is prohibited?So far, the references that can be taken into consideration is by examining the case law or any judgment made by the court. The definition of “corruptly” has been defined in case of PP v. Datuk Hj. Harun b. Hj Idris (No. 2) [1977] 1 MLJ 15.""Corrupt"" means ""doing an act knowing that the act done is wrong, doing so with evil feelings and evil intentions."" (Lim Kheng Kooi v. Reg [1957] 1 LNS 36; [1957] MLJ 199); ""purposely doing an act which the law forbids"" (R v. Smith [1960] 1 All ER 256).""Corrupt"" is a question of intentionIf the circumstances show that what a person has done or has omitted to do was moved by an evil intention or a guilty mind, then he is liable under the section. Thus, if the accused used his position to solicit gratification with a guilty mind, he is caught within the ambit of the section. The real point is whether there is soliciting a political donation with a corrupt intention.”In the case of Datuk Haji Harun v Public Prosecutor [1997] 1 MLJ 15, the defence put up by the accused is that the sums of money solicited and accepted were political donations. The court however rejected the defence and sentenced him to one year's imprisonment, in respect of the 1st Charge, and 2 years in respect of each of the 2nd and 3rd Charges. Evil mind & inducementIn the said case, it was decided that a donation to a political party is legal, as long as the donation is not solicited/accepted with an evil mind (sick) by the accused, and that the donation should not be an inducement to do an official act or conduct. To establish what is evil or otherwise, depends on the manner how the donation was solicited and presented.ConclusionCorruption has always been a challenge to good governance. The important role of good governance is to influence the country's economic performance. Poor governance and pervasive corruption cut into government returns and lead to inefficient spending, thereby weakening the macroeconomic situation of a country. This results in the international financial organization wanting to be involved with the efforts to “strengthen” governance in country members through various means such as supporting economic policies and structural reforms that may trap them further into considerably difficult financial situation."
"Mr IGP ... Why Some Slow, Some Fast? Picture credit: todayonline.comMany have seen the video of Papagomo hitting and kicking a foreign worker around. Papagomo says he did it to redeem his sister's honour because the foreign worker was sexually harassing his sister and her friends. I am proud that I at least fulfilled my duties as a brother and a man - Papagomo Many have also seen the video of a husband that repeatedly hit his wife at a toll Plaza. Batu Pahat OCPD Asst Comm Din Ahmad confirmed that the man was arrested on Monday, 15th February. Deputy IGP upsetWhen the Papagomo video went viral, our Deputy IGP Datuk Seri Noor Rashid Ibrahim went ballistic. And rightly so. Picture credit: thestar.com.myHe was quoted as saying:We can't have people simply beating others when they like. They have to follow the law. They have to be taught a lesson.Where is the lesson?So far, Papagomo has only been called to meet with the police for his statement to be taken. Whilst the man who hit his wife with a shoe has been arrested. Patience is a virtue, Mr IGP?IGP Tan Sri Khalid Abu Bakar told the public to be patient as action would surely be taken against Papagomo. This is what the IGP had to say when he was in Penang: We cannot be too emotional. We cannot simply make arrests because somebody was seen being beaten up in a video. This is to ensure fair justice. Be patient. Action will be taken. This takes the cakeTo top it off ... the IGP now seeks Papagomo's assistance too!We have asked Papagomo to cooperate with the police and produce the victim. But until today, he has not cooperated with us.Now, let me get this right ... our IGP wants the offender to assist the police in bringing forward his victim so that the offender may be charged? Good one!Why the difference?The question that begs to be asked is ... Why is there a difference as to how the police handled both cases?One requires patience. The other, a swift arrest.How will the public have confidence?It is no secret that public confidence in the PDRM has waned over the years. This might just be a matter of perception but, nonetheless, it is a problem.Ten years on in 2015 we continue to have major issues on public confidence and PDRM - Proham chairman Datuk Kuthubul Zaman Bukhari and Proham secretary-general Datuk Dr Denison Jayasooria It must be noted that both Datuk Kuthubul and Datuk Dr Denison are former members of the Royal Commission, set up in 2005 to enhance the operation and management of the PDRM.So Mr IGP ... what say you?Statements by the IGP, requesting the public 'to be patient' and for the assailant to 'produce the victim' will further erode public confidence. There are many police officers who work hard each day. They man traffic lights in the rain so that we may have a smooth drive home. They help females in the middle of the night to change punctured tyres. Many have died in the course of their duty. The loss of public confidence is most unfair to these officers."
"Unlawfully pork free? Picture credit: fmt PPIM's (Malaysian Islamic Consumer Association) Datuk Nadzim Johan says ‘pork-free’ signs does not mean that a restaurant is halal as the halal certification comes from Jakim only.An enforcement director (Encik Mohd Roslan Mahayudin) told the newspaper that the sign does not mean a restaurant is classified “halal” or permissible under Islam, and thus action can be taken under Sections 28 and 29 of the Trade Descriptions Act 2011 for attempting to confuse Muslims through Quranic verses and objects. - MalayMailOnline, 13 February 2016 What is HALAL certification? The authority that issues the halal certification is JAKIM, JAIN or MAIN. The definition of Halal according to the Trade Description Order (Usage of the Term “Halal”) 1975 is as follows: When the term is used in relation to food in any form whatsoever, in the process of trade or commerce as an aspect of trading or part of an aspect of trading for the referred food, the terms ‘Halal’, ‘Guaranteed Halal’ or ‘Muslim Food’ or any other terms that may be used to indicate or may be understood as meaning to indicate as permissible to be consumed by Muslims and allowed in their religion for the referred food to be consumed, must therefore mean the following, that is, the food for which such terms are being used: Does not stem from or consists of any part of or item from animals that are forbidden to Muslims by Islamic law, or animals that have not been slaughtered according to Islamic law. Does not contain any substance that is considered impure in Islamic law. Is not prepared, processed or manufactured using equipment or utensils that are not free from impurities as defined by Islamic law That, in the preparation, processing or storage stage, does not come in contact with or is stored near any kind of food that does not meet the requirements of para(s) (a), (b) or (c) or any substances that are considered impure by Islamic law. No pork does NOT mean HALAL! Any good Muslim will know that halal food does not mean no pork. There are other considerations too such as: Method of slaughter ... Muslims have a specific way in which animal are slaughtered. Alcohol ... Muslims cannot consume alcohol, alcohol cannot be present in their food, unless it is at an extremely low content. Cleanliness of the food premise No pork served means no pork served. Period. Deception The Domestic Trade, Consumerism and Co-operatives Ministry can act against restaurants with “no pork” sign, purportedly for attempting to deceive Muslim consumers into dining there, Malay daily Berita Harian (BH) reported today. (Source: MalayMailOnline) Certain quarters now see that the sign stating 'NO PORK SERVED' as a form of deception on Muslim diners?? What is deception? Deception is an act to deceive someone. The act of hiding the truth, especially to get an advantage. The act of making someone believe something that is not true. Eateries might take it as an insult, to allege that they may be attempting to deceive Muslims! The Domestic Trade, Consumerism and Co-operatives Ministry spokesperson might want to reconsider making statements that can provoke unnecessary negative sentiments or cause issues when there are none. Datuk Seri Dr Salleh Said Keruak recently reminded his fellow politicians to be more responsible when making statements as what they say can affect the country’s stability and economy. Maybe the PPIM chief and The Domestic Trade, Consumerism and Co-operatives Ministry spokesperson might want to take heed of this reminder and apply it to this situation? Making callous statements that may unnecessarily upset the harmony we have in Malaysia might not be the most responsible thing to do. Do not impose on the non-Muslims This new threat of penalising a food outlet is absurd in nature. It is a known fact that halal food covers more than merely no pork. On that basis - How can one say that the signage is misleading or deceptive? What's next? Vegetarian restaurants that say 'no meat served' are also deceptive? To an extreme... Does PPIM really want non-Muslim eateries to have a sign that says 'Orang Islam Tidak Dibenarkan Makan Disini' or 'Kedai Makanan Tidak Halal'? Maybe that is a safer bet?"
"I'm Not an “Employee”, But I Still Have Rights! What if I’m not covered by the Employment Act? Last time we talked about your rights under the Employment Act. If you don't fall within the definition of Employee, common law rules will apply, in areas of making the employment contract, the terms and conditions of the contract, and in dismissal procedures. As a general rule the courts will follow the guideline put in the Employment Act in deciding on employment disputes In practice, if you earn more than RM2000 but not exceeding RM5000, you still can file a claim at the Labour Department for due wages and other payments even if you don't fall under the definition of 'Employee' under the Act. If you earn above RM5000 and don’t fall under the category of ‘Employee’, you will have to file your claim through the Industrial Relations Department, Still worried that you don't fall under the Employment Act? It’s all right! You'll have the Industrial Relations Act 1967 (IR Act) to cover you. What is the IR Act? The IR Act applies throughout Malaysia to all categories of workmen regardless of salary amount or occupation. The Act deals with relationship between employers and workmen and their trade unions, to prevent and settle any differences or disputes. It focuses on promoting good relationship between employers and workmen, and their trade unions. Differences between the IR Act and Employment ActThe Employment Act 1955 focuses on financial benefits (e.g. annual leave with pay, sick leave with pay, maternity allowance, overtime and so on). The Act is of compelling nature where employers who fail to provide any of those benefits can be prosecuted in court. The IR Act is more persuasive where industrial problems are solved as far as possible through negotiation and conciliation before finally resorting to the Industrial Court. Definition of workman under the IR ActSection 2 defines “workman” as— “any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purposes of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute”. This simply means that anyone, regardless of his positions and salary, is a workman under the IR Act. How does the IR Act help you? Section 2 Industrial Relations Act 1967: a trade dispute is “any dispute between an employer and his workmen, connected with the employment or non-employment or the terms of employment or the conditions of work of any such workmen”. In a trade dispute, these are the steps that you will go through: The parties concerned will try to reach an agreement through negotiation. If they fail then the Industrial Relations Department will step in. The Industrial Relations Department will try to conciliate. If it still can’t be settled, the department will report to the Director General. The Director General will try to help the parties to reach a settlement (Section 18). If that fails, the Director General will report to the Minister of Human Resources. The Minister will attempt to get the parties to conciliate (Section 19A). If he fails, he may refer the matter to the Industrial Court for arbitration. The Industrial Court will hear the case and make an order called 'Award'. Any party may appeal to the High Court, up to the Federal Court. So, there you have it. If you don’t have the Employment Act to help you, there’s always the IR Act!"
"Sabah & Sarawak: Give Us Back Our Rights! It’s time to revisit, devolution notwithstanding, the intention of the Founding Fathers in Borneo on the relationship with Peninsular Malaysia and the intention of the framers of MA63. DEVOLUTION Luyang Assemblyman Hiew King Cheu appears to be in a minority of one in urging the Sabah Government to press Putrajaya to devolve powers to it as was being done in Sarawak in three specific phases viz. administrative empowerment, encroachment of the Federal Government on state rights and oil and gas royalty.Interestingly, both Petronas and the Federal Government have since publicly rejected the Sarawak Government’s demand for 20 per cent royalty, up from the current measly 5 per cent, and have offered nothing in return except for local contracts and more money for corporate social responsibility (CSR) activities. CSR so far has meant Petronas handing out, after 50 odd years, free scientific calculators to Form 4 students in Sabah and Sarawak. In the meantime, the bottom has dropped out of the crude oil market with prices plunging from over USD100 per barrel to USD30 per barrel. Full autonomy for Borneo statesSarawak Chief Minister Adenan Satem may appear to be going along with the first phase, in view of the imminent state election, but he did in the early stages declare that what the state wanted was to return to its position in 1963 as per the Malaysia Agreement 1963 (MA63) i.e. Full Autonomy with the Federal Government being confined in Borneo to defence, internal security and foreign affairs. Prime Minister Najib Abdul Razak has been silent on this demand and instead conceded the need to grant more powers to Sabah and Sarawak. “What they can do, let them do,” he said in Miri not so long ago. “There’s a lot of duplication and wastage with the Federal and Sabah and Sarawak Governments doing the same thing.” He envisages either handing over control of some, if not all, Federal Governments departments in Borneo to locals or to the respective state governments. Sabah's silence on devolutionWhile some view Najib’s offer as something, better than none, after over 50 years of the Federation with the peninsula, MA63 is a political hot potato in Sabah and may explain why the state government has been virtually silent so far on what Najib calls devolution of powers. Activists in Sabah were the first to raise the issue of MA63 where they allege the Federal Government has been in non-compliance and/or violation. Sarawak remained silent for many years while the Sabah activists pressed the case for both states in local and international forums. Eventually, the activists in Sarawak emerged in the last two years or so and appear on paper to have stolen the march on their Sabah counterparts. The status of MA63The issue in Sabah and Sarawak is that MA63 is not only an International Trust Treaty but also a Trust Deed lodged with the UN. Hence, the activists see no need to ask Putrajaya for anything or negotiate for their rights. The consensus is that both the Sabah and Sarawak Assemblies have the power to pass a motion on MA63 to allow the Sabah and Sarawak Governments to invoke it as both an International Trust Treaty and Trust Deed. That means, according to this school of thought, that it would suffice for the respective state secretaries to inform the Chief Secretary to the Federal Government, also the Cabinet Secretary, of the motions passed by the Sabah and Sarawak Assemblies. In fact, the Sarawak Assembly has since passed a motion on MA63 and another on oil and gas resources. Patently, the Federal Government Department in Borneo must be removed except in defence, internal security and foreign affairs. If this can be achieved under the administrative empowerment that has been promised Sarawak at least, that would be a small step in the right direction. The question than arises, as pointed out by Hiew, on why Sabah has been left out so far from the devolution process begun in Sarawak.. The Sarawak-Putrajaya talks on devolution would have to deal with Article 1 of the Federal Constitution which sees Sabah and Sarawak as the 12th and 13th states in the Federation. The meaning of FederationAnother major issue is the Definition of Federation in the Federal Constitution under Article 160. Federation, the Article states, means that set up by the Federation of Malaya Agreement 1948 and reinforced by the Federation of Malaya Independence Act 1957. That implies that Sabah and Sarawak are states in the Malayan Federation, now known as Malaysia but not the Malaysia in MA63. This is a position that the Borneo nations never bargained for. Last but not least was whether the Petroleum Development Act, enforced under emergency laws which have since been repealed, was any longer applicable in Sabah and Sarawak along with the so-called oil agreements. Revisiting devolutionIt’s to time to revisit, devolution notwithstanding, the Intention of the Founding Fathers in Borneo on the relationship with the peninsula and the intention of the framers of MA63. That would be the way forward. Devolution, no matter how welcome, puts the cart before the horse. It should be first things first which is why perhaps that there has been silence so far in Sabah on Hiew’s demand. Pix Credit: media.licdn.com"
"Killing in the Name of Self Defence Do we have the right to kill in the name of self defence? This is the question asked by many Malaysians regarding the Zulkifli case. He allegedly stabbed 2 people who attempted to steal his generator from his own home and one of them is dead. Many Malaysians ponder over this, he was charged with murder which carries a mandatory death sentence and later he ended up with 2 charges. The answer is you do have right to self-defence with reasonable force but the situation might change if the person ends up dead. There is a fine line between self-defence and murder. Degree of threat Another factor is the degree of threat. If the burglar is armed with a gun and you shoot him dead, there is presumption of reasonable use of force. But, it changes when the burglar armed with a screwdriver ends up dead after being shot by you. It’s difficult to justify the use of force in this scenario. It all depends on the degree of threat that the person faces. Severity of harm Meanwhile, it will be for the prosecution to decide on the the severity of harm. When the prosecution draws up the charge sheet, they might just decide not to charge the accused. This is because the prosecution has the option of whether or not to charge someone in court. After the accused is charged, it will be up for the court to decide whether the force used is reasonable or not. Can these be considered as self defence? George Zimmerman is known for the fatal shooting of Trayvon Martin, who was unarmed and mistaken for committing a crime. He was charged with murder and manslaughter but the jury acquitted Zimmerman on both charges. Zimmerman claimed he acted in self defence but the whole trial started a massive debate on self defence in the United States. On other hand, Nancy Seaman is a school teacher who was abused by her husband. She killed her husband during an altercation with him. She claimed that he chased after her with a kitchen knife. She responded by striking him 15 times with a hatchet. Then, she grabbed a knife and stabbed him 21 times. Although she claimed self defence, she was charged with murder and found guilty. Both claimed self defence in different situation but only one was acquitted. Is it fair for Zimmerman to be acquitted while Seaman remains in prison? Self defence guidelines? The issue with self defence seems to be what amounts to 'reasonable use of force'? There are no clear guidelines on it. This is the same in the US or UK. It depends on the facts of each case by case. What amount of force is required to defend oneself for it to be considered as reasonable force? A clear definition of reasonable force appears to be missing. Inspector-General of Police Tan Sri Khalid Abu Bakar smacks Bar Council for failing to explain to the public vital information regarding self defence cases Meanwhile, the Bar Council appears to be avoiding this issue. There seem to be no proper action or stand taken by their side. Perhaps, Khalid’s comment is true after all. Now, is there a need for a proper guideline on self defence? How are we going to defend ourself and property from the criminals? What will be the outcome for Zulkifli’s case? Perhaps, what we need is a clear guideline on self defense or maybe it is best to be left for the court to decide on that matter."
"What on Earth is a VALID Offer?! Clear as a Haze-Free Daylight: What is a Valid offer under Contract Law? Consider these two typically boring regular scenarios: EXAMPLE 1: You met a Mr Abu wanting to sell you his old Lexus for maybe RM80000 to RM90000. EXAMPLE 2: You met Mr Bakar offering to sell his vintage Jaguar for a bargain price of RM25000. Which one is a valid offer under contract law? Hold on, what is an offer?In plain words, an offer is when you propose something to someone, wanting to make it legally binding once he/she accepts it (Harvey v Facey [1893]). An offer is the first necessary ingredient to form a contract. Try to think of a contract as a cake with four main ingredients! OFFER ACCEPTANCE CONSIDERATION INTENTION TO BE LEGALLY BOUND The person making the offer is the 'promisor' and the person receiving the offer is a 'promisee' (Section 2(c), Contracts Act 1950). Abu and Bakar in the examples are the promisors and you are the promisee. Both Abu and Bakar are offering to sell their cars to you. Once you accepted any of these offers, you are legally bound to pay the amount. They have to hand over the car to you. BUT, the offer must be legally valid. All right, I get it. But...what is a VALID offer?A valid offer must be: precise, definitive and clear so that both parties' rights and duties are fixed and certain. AND the person making the offer must make it clear that he will be bound by his terms once it is accepted. Invalid offers and void agreementsSection 30 of the Contracts Act: 'agreements, the meaning of which is not certain, or capable of being made certain, are void'. Void here means legally unenforceable. An invalid offer will void a contract. So, be very careful! Let's analyse!Abu and Bakar in EXAMPLES 1 (Lexus) and 2 (Jaguar) are willing to sell their cars once you hand over the money. The Lexus offer says the price is 'maybe RM80000 to RM90000'. Is the offer clear enough for you? NO! The hazy price tag, hazier than a bad October 2015 afternoon, is unclear on how much you need to pay to accept the offer. This sort of contract would be void because of the unclear offer terms (Section 30). The Jaguar offer makes it clear to you that once you fork out RM25000, your friend must give you the car. The terms of the offer are blindingly clear as a broad haze-free daylight, complete with rainbows and sunshine! ConclusionWe can say that only the Jaguar offer is valid and capable of acceptance because it is clear on both parties' rights and obligations. The moral of the story is: a valid offer must be clear, precise and certain. Besides, why would you want a Lexus anyway? Jaguar rocks! DISCLAIMER CLAUSE: The author is in NO way affiliated with the Jaguar brand in any capacity whatsoever and his car choices does not reflect the official position of AskLegal. However, the gratuitous donations or sponsorship from Jaguar are MOST welcome in influencing our stance towards this contentious matter. Picture credits: wikimedia.org"
"ISU MELOKAP DAN MEMERIKSA “TRANSEKSUAL” YANG DITAHAN Picture credit: chinanews.comApakah definisi transeksual?Isu transeksual bukanlah suatu isu yang baharu di Malaysia. Isu ini telah lama wujud dan kini menjadi semakin hangat apabila golongan ini mula menuntut pelbagai hak di sisi undang-undang.Meskipun Malaysia tidak memberikan pengiktirafan undang-undang kepada golongan ini, namun kewujudan mereka menuntut semua pihak untuk meneliti beberapa isu penting yang menyentuh hak mereka yang asas. Kamus Dewan Edisi Keempat mentakrifkan ""transeksual"" sebagai seseorang (lelaki atau perempuan) yang berperasaan dan berpenampilan sebagai anggota jantina yang satu lagi dan kadang-kadang menukar organ jantinanya melalui pembedahan.Picture credit: metro.co.uk Masalah transeksual bila dalam tahanan polisApabila seseorang transeksual ditahan, isu penempatannya di dalam lokap haruslah difikirkan terlebih dahulu. Umumnya, dalam menempatkan seseorang di dalam lokap, identiti dalam kad pengenalan seseorang atau pasport akan digunakan oleh pihak polis sebagai indikator dalam menentukan jantina individu yang ditahan.Jika tertera lelaki, maka dia akan ditempatkan di dalam lokap lelaki dan sebaliknya, jika kad pengenalannya menunjukkan perempuan, maka dia akan ditempatkan di dalam lokap wanita. Isu ini sangat penting untuk diambil tindakan segera kerana melibatkan hak asasi seseorang yang ditahan. Walaupun transeksual merupakan gender yang tidak diiktiraf oleh undang-undang, namun hak asasi setiap insan perlu dilindungi daripada dicabuli. Picture credit: talkingpointsmemo.comSebagai contoh, seorang yang asalnya lelaki dari segi fizikal bertukar menjadi wanita setelah menjalani pembedahan pertukaran jantina. Apabila individu ini ditahan kerana disyaki melakukan sesuatu perbuatan yang bertentangan dengan undang-undang, di dalam lokap manakah dia akan ditempatkan? Adakah di dalam lokap wanita ataupun di dalam lokap lelaki? Jika di dalam lokap wanita, adakah bersama-sama dengan wanita yang lain? Jika di dalam lokap lelaki, adakah bersama-sama dengan lelaki yang lain? Persoalan ini mungkin nampak mudah tetapi implikasinya sangat besarJika transeksual itu ditempatkan di dalam lokap wanita, wanita yang lain di dalam lokap tersebut akan berasa kurang selesa dengan kehadiran seseorang yang asalnya lelaki. Manakala, jika dia ditempatkan bersama-sama dengan lelaki yang lain, kemungkinan ketidakselesaan akan berlaku sama ada kepada transeksual berkenaan mahupun suspek yang lain. Tambahan pula, apabila transeksual tersebut ditempatkan di dalam lokap lelaki, kemungkinan berlaku jenayah yang lain seperti jenayah yang bertentangan dengan aturan tabii adalah tinggi. Selain isu melokap, perkara lain yang penting untuk diberikan perhatian ialah isu pemeriksaan fizikal yang dilakukan terhadap transeksual yang ditahan. Siapakah yang akan memeriksa tahanan transeksual?Apabila seorang transeksual ditahan, siapakah yang akan memeriksa transeksual tersebut? Dalam isu ini juga, umumnya amalan yang sama akan digunakan, iaitu penentuan jantina orang yang ditahan dibuat berdasarkan kad pengenalan atau pasport. Persoalannya, adakah penentuan jantina seseorang berdasarkan kad pengenalan atau pasport sudah memadai untuk membolehkan seseorang pegawai polis untuk memeriksa seseorang transeksual yang ditahan? Walaupun isu ini nampak remeh, namun ia merupakan perkara yang menjadi perbincangan di negara-negara yang mengiktiraf transeksual. Ini tidak bermakna bahawa Malaysia boleh mengabaikan isu ini kerana kita tidak pernah mengiktiraf golongan transeksual. Dalam konteks ini, isunya bukan pengiktirafan, tetapi pemeliharaan hak asasi seseorang sebagai manusia di muka bumi ini. Jika haiwan diberikan perlindungan dan jaminan, mengapakah golongan ini tidak boleh diberikan perlindungan daripada pencabulan atau penindasan dalam konteks hak asasi yang asas?Picture credit: themalaymailonline.com Pihak berkuasa perlu mempertimbangkan isu transeksualDari aspek yang lain pula, jika kedua-dua isu yang dibangkitkan di atas ingin diambil tindakan, apakah alternatif yang ada bagi pihak polis dalam hal ini? Dalam isu melokap, adakah pihak polis perlu menyediakan lokap khas kepada transeksual secara umum atau perlu menyediakan lokap khusus bagi transeksual lelaki dan transeksual wanita. Persoalan lain yang mungkin ditimbulkan ialah bagaimana pula dengan golongan gay, lesbian dan biseksual? Adakah mereka ini juga perlu dikenal pasti dan diasingkan lokapnya daripada orang-orang lain apabila mereka ditahan? Kesukaran dalam memikirkan alternatif juga timbul dalam isu pemeriksaan fizikal transeksual yang ditahan. Adakah polis wanita perlu memeriksa transeksual lelaki yang menggelar dirinya sebagai wanita? Jika ini menjadi ukuran, maka sukar untuk menyelesaikan isu ini kerana kepentingan pihak polis dalam menjalankan tanggungjawabnya juga perlu diambil kira supaya alternatif yang dicadangkan tidak menjejaskan mana-mana pihak. Sesungguhnya, isu melokap dan memeriksa transeksual yang ditahan bukanlah satu perkara yang mudah untuk diambil tindakan. Apa yang perlu dingat ialah langkah yang ingin diambil (jika ada) harus memikirkan implikasi semasa dan susulan yang mungkin timbul daripadanya. Dr. Ramalinggam RajamanickamPensyarah Kanan, Fakulti Undang-undangUniversiti Kebangsaan Malaysia (UKM)rama@ukm.edu.my03-8921 6355 (samb. 6376)"
"Transgender dilemma: It also affects the authorities Picture credit: truthrevolt.orgWill PDRM charge a transgender woman in Kota Kinabalu for baring her breasts in a shopping mall??!TheCoverage reported that a woman's wardrobe malfunction caused her to accidentally exposed her breasts to shoppers who were watching her perform a song. Of course being Malaysians we whipped out our smart phones, video record it and soon the whole thing goes viral on the internet. It's now suspected that the 'woman' is a transgender. Police are looking (pun intended) into the matter.What the police in Kota Kinabalu have to sayPicture credit: nst.com.myCity police chief Asst Comm M.Chandra stated that they are looking for someone with the physique of a woman but they are not dismissing the fact that it may be a man. So the police are also looking for a 24-year old man going by the name of Ravidi Jubaidi in connection with the incident. Can the transgender in question please stand up?It was also reported that the transgender in the video was identified as Facebook user Papai Cicie ( Puteri Cici Cutez) who took to Facebook to apologise for the mishap and said her breast was accidentally exposed when she bent down towards the microphone.Possible offencesDoing an obscene actSection 294(a) of the Penal Code states that whoever, to the annoyance of others, does any obscene act in any public place shall be punished with a maximum three months jail or a fine or both.Back in 2014 the participants of the infamous Pesta Bogel at Teluk Bahang, Penang were charged under this section. Then again they were all completely nude. But here we have a very different set of circumstances. It's a man who looks like a woman, with a wardrobe malfunction.Gesture intending to insult modestySection 509 of the Penal Code provides that, a person guilty of using a word or gesture intended to insult the modesty of another can be jailed up to five years or fined or both.I would say this charge will be hard to stick as there is a need to prove the element of intention to insult. As stated earlier, there was a wardrobe malfunction. So what is the obscene act?It would be safe to say that because the person in question has undergone breast implants, it is now an issue for the authorities. They probably find it obscene.Now, the dilemma that the authorities are in, is that, will they be charging a man [since Malaysia does not recognise transsexuals or transgenders] for exposing his 'breasts'? As we know men do not have breasts (okay, I know its arguable with terms such as gynecomastia). Also, men are frequently seen in public, bare chested and yet none have ever been charged for doing that.So, just because this man has breast implants it is now deemed as obscene? What about men who are overweight? They got what we call 'man breasts'. Will they now be forbidden to walk around bare chested?If so, the authorities will then be penalising men for being fat! An absurd proposition for sure.What then about men with nipple rings? Is that obscene too? If so I better warn my friend Khairul.Who was annoyed?From the video clips floating in cyberworld, I doubt anyone was annoyed. How will the police prove that persons present then were annoyed? Everyone was watching or recording the whole incident without objection.This is one instance that the police cannot have one of its personnel lodge a report based on what he saw online and that he was annoyed by an obscene act. It will be futile to do so.He would be watching the video, he was not present when the act occurred.The transgender communityOn a more serious note ... perhaps it's time that the authorities take note of the transgender community that we have. It is time they acknowledge their existence and make the necessary provisions for this community.They are no longer living in the shadows ... they exist and they are here to stayRead more about transgender issues in the coming weeks. Stay tuned!"
"Do politicians really know the law? Absurd requests from UMNO KedahRight ... the political news that has gotten everyone's tongue wagging is that 14 out of 15 UMNO divisions in Kedah are seeking to oust Mukhriz Mahathir, Mentri Besar of Kedah.I really could not care less about their political objectives. Be it Mukhriz is incompetent or that this is actually a proxy war against Tun Dr Mahathir.What is interesting is this. We have a group of politicians who have asked for Prime Minister Najib Abdul Razak to intervene and replace Mukhriz as Menteri Besar.UMNO Kedah's demandsPicture credit: says.com""The entire state Umno leadership and elected representatives gathered here today hereby announce that we have lost confidence in the leadership of Mukhriz Mahathir as Kedah Umno liaison chief and as Kedah Menteri Besar. Therefore we appeal for the prime minister's attention to institute a change in the state's top leadership and also the Kedah Menteri Besar"" - Ahmad Bashah How to remove the MB?According to the relevant laws, namely the Kedah State Constitution, a Menteri Besar can be removed when he has lost the command of the majority in the state assembly.If he has lost the confidence of the majority, then a member of the state assembly can call for a vote on such a motion. A motion of no confidence. UMNO holds 21 seats out of the 36 in the Kedah State Assembly so that would not be much of a problem right?But they want the Prime Minister to wave his magic wand ... Are they nuts??!In short, UMNO Kedah really has to do some real soul searching. How can they aspire to be politicians when they are ignorant of the law? Lawmaker wannabees who do not know the law. Oh well ..."
"Is Perlis restricting freedom of religion? Many would have read the news that the Perlis government has moved to bar non-Muslims from placing their prayer altars along the walkways of the Seri Sena Flats in Kangar. This has caused great concern for many residents of Seri Sena.State Housing and Local Government Committee chairman Mat Hassan was reported to have stated that the reason for the latest action is due to: a term of the lease agreement prohibiting residents from placing belongings outside their units the altar may cause inconvenience Picture credit: thestar.com.my“We support any move to clean up the corridors. As long as the size and height of the altars are reasonable, it should not be an issue.” - Lam Pak Sam, Perlis State MCA secretary The Jade EmperorFor the Chinese it is common that they place an altar at the front of their home as homage to the Jade Emperor. This is not a new practice but one that has been around much longer than I have lived. The Perlis government's action is definitely imposing on the residents' freedom of religion. It is our constitutional rightThe right of freedom of religion is enshrined in Article 11 (1) of the Constitution of Malaysia where it states, ""Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.""Your right is guaranteed.The big but ...However, Article 11 (5) provides that, ""This Article does not authorize any act contrary to any general law relating to public order, public health or morality.""Was there any issue of public disorder, public health or morality with the practice of having altars along the corridor? Not at all. Is it a hazzard in an emergency? No. What is the problem then? Will Perlis ban shoe racks too?If the Perlis government wants to enforce the letter of the law then will Mat Hassan also be issuing notices to residents for placing shoe racks or plants outside their units? But seriously, has anyone complained that the altars cause inconvenience?Tolerance and acceptanceOur nation has been built on tolerance and acceptance. Each race has always tolerated and been happy to live with the religious practices of another race. This is what makes us Malaysian.Of course we enjoy the food bounty that comes along with religious celebrations.Picture credit: mypenang.gov.myWe do not mind the melodic call of the azan at dawn. We learnt to avoid certain roads when Thaipusam comes. On the 9th day of Chinese New Year, Hokkien communities will sound like a war zone as they celebrate with fire crackers.The Perlis authorities should think twice before they act. What is the use of acting without thought and then rectifying the situation later on? Jangan biarkan nasi jadi bubur la."
"HAK ASAS SEBAGAI HAK ASASI PEKERJA MIGRAN DI MALAYSIA Picture credit: thedailystar.netPertubuhan Bangsa-bangsa Bersatu (PBB) telah mengisytiharkan tanggal 18 Disember setiap tahun sebagai Hari Migran Antarabangsa. Menerusi Deklarasi Philadelphia 1944, komuniti antarabangsa telah mengiktiraf “Pekerja migran bukan merupakan komoditi” dalam usaha mengangkat maruah pekerja migran sebagai tulang belakang kepada proses pembangunan ekonomi sesebuah negara.Sumbangan pekerja migran kepada pembangunan dan peningkatan ekonomi sesebuah negara mendapat perhatian dan pengiktirafan di serata dunia. Hari Migran Antarabangsa adalah bagi memperingati sumbangan pekerja migran sebagai tulang belakang kepada pertumbuhan dan kemakmuran sesebuah negara. Kemajuan komunikasi dan pengangkutan secara global kini, menjadi penggerak kepada bilangan orang yang bermigrasi di seluruh dunia. Malaysia sebagai sebuah negara destinasi dan pengimport pekerja migran utama di rantau ini mempunyai sistem perundangan yang mantap bagi melindungi dan seterusnya mengiktiraf hak asas pekerja migran. Sehingga 30 April 2015, terdapat seramai 1,946,152 orang pekerja migran yang digaji secara sah dan telah dikeluarkan Pas Lawatan Kerja Sementara (PLKS) oleh Jabatan Imigresen Malaysia.Picture credit: durianasean.com Sejarah Hari Migran Antarabangsa ini telah dipilih oleh PBB pada 4 Disember 2000 sebagai satu usaha PBB untuk mengakui bahawa proses migrasi itu menuntut keberanian untuk meninggalkan negara asal serta penglibatan dan sumbangan migran di seluruh dunia. Idea asal untuk mengadakan hari khas migran tercetus pada tahun 1997 apabila Filipina dan lain-lain Pertubuhan Migran Asia mula meraikan apa yang pertama kali dipanggil, ""Hari Perpaduan Antarabangsa Bersama Pekerja Migran"". Tarikh 18 Disember tahun 1990 juga merupakan tarikh permulaan memperkenalkan Konvensyen Antarabangsa mengenai Perlindungan Hak Asasi Semua Pekerja Migran dan Ahli Keluarga (ICMRW- International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families). Picture credit: mtuc.org.my Hak Asas Pekerja Migran Bagi memastikan aktiviti migrasi memberi manfaat kepada pekerja migran dan sebagai pilihannya, bukan sebagai satu keperluan hidupnya sebagai manusia, perkara asas yang perlu diberi perhatian adalah soal keamanan dan keselamatan, tadbir urus yang baik, penyediaan persekitaran dan peluang kerja yang bersesuaian. Perkara ini merupakan tanggungjawab besar yang menuntut kerjasama semua pihak bagi menjamin penyediaan kebajikan dan sokongan asas seseorang pekerja migran. Di Malaysia pekerja migran sama seperti seorang warganegara, dijamin perlindungannya seperti diperuntukkan di bawah Artikel 8, Perlembagaan Persekutuan.Migran yang masuk secara sah dijamin haknya di bawah undang-undang. Namun, sering kali hak-hak asas migran dikaitkan dengan konsep hak-hak asasi manusia yang sejagat seperti mana yang diperuntukkan dalam konvensyen dan protokol antarabangsa. Hak asas merupakan hak terhadap keperluan dan sokongan asas sebagai seorang manusia seperti makanan, pakaian, tempat tinggal. Bagi pekerja migran, hak asas pekerjaan termaktub di dalam terma dan syarat kontrak pekerjaan seperti mana yang diperuntukkan di dalam Akta Kerja 1955 (Semenanjung Malaysia), Ordinan Buruh Sabah (Sabah) dan Ordinan Buruh Sarawak (Sarawak). Hak asas ini termasuklah hak terhadap gaji minima, cuti, tempoh waktu kerja mengikut piawaian, penamatan, kerja lebih masa dan tatacara aduan. Picture credit: thestar.com.myPengiktirafan hak-hak asas pekerja migran di bawah undang-undang telah diutarakan di dalam kes Chong Wah Plastic Sdn Bhd and Others v. Idris Ali and Others yang menghuraikan konsep kesamarataan di dalam pekerjaan yang dimasuki pekerja migran termasuklah soal bayaran upah. Perlindungan bagi hak-hak asas pekerja migran seperti mana yang diperuntukkan di dalam Akta Kerja 1955 merangkumi juga hari rehat, kerja pada hari rehat, waktu bekerja, tugas kerja, kerja syif, cuti sakit dan cuti kelepasan. Manakala Hak Asasi pula menekankan undang-undang kebebasan asasi seseorang rakyat tertakluk setakat yang di benarkan oleh negara penerima selagi ia tidak menimbulkan ancaman keselamatan kepada negara penerima. Kesedaran Pekerja Migran Pekerja migran hendaklah di berikan pengetahuan lengkap tentang hak-hak asas mereka di bawah undang-undang di Malaysia. Hal ini kerana migran yang berhijrah ke Malaysia bagi tujuan pekerjaan sering terdedah kepada diskriminasi dan penganiayaan. Perkara ini menjadi-menjadi dengan amalan penyumberan luar (Outsourcing) bagi pengambilan pekerja migran, iaitu apabila agensi penyumberan luar pekerja di beri tanggung-jawab mengurus pekerja-pekerja mereka dengan berperanan sebagai seorang majikan.Ini di sebabkan kontrak pekerjaan di masuki di antara pekerja dan agensi berkenaan bukan antara pekerja migran dan organisasi tempat mereka bekerja seperti yang berlaku dalam keadaan pengambilan pekerja secara biasa. Kesannya, tenaga buruh pekerja di jadikan komoditi yang di dagangkan kepada mana-mana organisasi yang memerlukan. Picture credit: blogs.wsj.com Mengangkat Maruah Pekerja Migran Rancangan Malaysia ke-11 telah memberi beberapa keutamaan dalam perkara asas bagi pasaran buruh yang secara tidak langsung memperbaiki dan memperkemas kecekapan pengurusan bagi tujuan meningkat produktiviti, menambah baik instrumen undang-undang perburuhan dan dasar pekerja migran. Selaras dengan itu, satu dasar kemasukan dan pekerjaan akan dibangunkan dengan mengambil kira kebajikan pekerja migran dan keperluan kepada sektor industri yang memerlukan pekerja migran. Di peringkatan serantau pula, negara-negara ASEAN telah bersetuju untuk membangunkan Instrumen ASEAN mengenai Promosi dan Perlindungan Pekerja Migranberdasarkan Artikel 22 Perisytiharan ASEAN mengenai Perlindungan dan Promosi Hak Pekerja Migran yang telah diterima pakai pada tahun 2007. Sesungguhnya, Malaysia menghadapi cabaran yang besar bagi memastikan hak asas dan kebajikan pekerja migran dalam keadaan yang terbaik. Perkara ini menuntut kerjasama dan integriti semua pihak terutamanya majikan yang menggaji pekerja migran secara sah. Malaysia mempunyai perundangan pekerjaan yang cukup mantap dansistem perlindungan asas kepada semua pekerja migran antarabangsa. khususnya daripada sebarang eksplotasi dan penganiayaan, kezaliman dan ancaman semasa berada di Malaysia. Dasar dan polisi pekerja migran pula di gubal dengan mengambil semua perkara meliputi kedaulatan negara, keselamatan, ekonomi dan hubungan diplomatik dengan negara penghantar. Muhammad Afiq Ahmad Tajuddin Calon Doktor Falsafah, Fakulti Undang-undang Universiti Kebangsaan Malaysia Tel: 03-90815821 Email: mafiqmd@gmail.com Dr Rohani Abdul Rahim Pensyarah Kanan, Fakulti Undang-undang Universiti Kebangsaan Malaysia Tel: 03-89216374 Email:rar@ukm.edu.my"
"How can Malaysia make the fight against drugs and its illegal trade more effective? Photo credit: www.nrc.nl & Prof. Jenishbek B. NazaralievHow can Malaysia make the fight against drugs and its illegal trade more effective? Malaysia - a young country in demographic sense. About 70% of its population are aged between 17 and 25 years old. This factor however is a threat to the stability of social development due to the risk of drug addiction, followed by the risk of diseases such as - HIV and AIDS, and increase in crime. At the same time, Malaysia, a relatively developed and successful country, is both a major market and transit country for drug traffickers. On the one hand, together with the influx of illegal workers from Indonesia, Burma and Thailand and is the flow of drugs. On the other - part of the smuggling goes to Taiwan, China and Macau. Despite the fact that Malaysia is the country with the most stringent legislation against crimes related to drugs (the law of 1975 authorizes the death penalty for drug trafficking), according to official data from 1 to 1.6% of the population (which is more than 30 thousand people) are considered to be dependent. Hanging as an exceptional punishment for possession of 15 grams of heroin and 200 grams of marijuana, as well as the import of potent drugs intimidating acts. However, the drug trade continues, not only in deprived urban areas, but also in universities. According to official data, heroin remains the most widely abused drug in Malaysia. Methamphetamines and amphetamines ranked at the second and third place respectively. One of the reasons - they do not need to be injected and can easily be smoked or inhaled through the nose. As they say in many forums on the Internet- ‘to buy ice, shabu or meth on the street is easy’. However, they have one serious competitor- smoking spices and other ‘designers’ drugs which shift traditional opioids and synthetic drugs outskirts. The severity and danger of modern drugs underestimated in many countries. Firstly, unlike conventional drugs, they exist in the gray area of the law - the majority of the chemical compounds simply cannot keep the power for banning. De facto and de jure - they are legal. For example, in Malaysia, none of the species or smoking mixtures officially forbidden (chemical compound JWH-018, and variations and HU and CP). Meanwhile, the so-called Spice is very popular among young people, who prefer ‘fashionable’ drugs. Secondly, the mixture is relatively cheap to manufacture, and its bulk manufacture in Asia, particularly in China. Many of the ""designer"" drugs can be prepared at home, so the regions where the raw materials collected, such as Afghanistan for opioids, loses its importance. Today, in many countries due to the strengthening of the dollar and the currency wars, heroin becomes more expensive, and smoking mixtures on the contrary, are getting cheaper, creating another dangerous premise for distribution. In Muslim countries; in the Middle East, North Africa, and particularly in the Persian Gulf monarchies our public organization the World League ""Mind Free of Drugs"" (http://outofdrug.org/en ), which is headed by me, has recorded the following. The states struggle with the spread of conventional drugs.Severely punishing drug traffickers, but poorly controlling two types of new drugs – smoking mixtures and medical drugs. The second type of medical drug - Tramal, tramadol, oxycodone and various tranquilizers and antidepressants - has become a real disaster for Egypt and Saudi Arabia. In particular, due to the fact that many of their application is not considered contrary to the dogmas of Islam. This misconception is unfortunately based on a centuries – old tradition of smoking fruit mixture with hookah and a modern approach to treat disease or sickness by medical drugs (most of modern drugs are officially represented and sold as antidepressants). The official statistics states that dependent on smoking mixtures and medications are usually not taken into account, but we must understand that these drugs are more accessible to young people and, therefore, severely dangerous. Leading international economists and politicians know that drugs are targeting and hitting young population, and this in turn is damaging the prospects of the future economy. The big question today is -how to deal with new psychoactive substances, which escape from the secular and religious laws? As the president of the World League 'Mind Free of Drugs', I believe that the most effective approach in the fight against illegal trafficking and drug addiction is a primary prevention among young people. Since 2002, with positive promotion and a series of information campaigns, our organization has been working on forming conscious immunity against drugs among young population of our planet. On the one hand, drugs use must be devoid of any glamor we must demonstrate that this is the path to self-destruction and social bottom. On the other - in the projects we shall plant healthy and traditional values to young people. Our practical experience has shown its successful effect in some conventional countries for drug trafficking from Afghanistan to Russia and it works. Malaysia has an excellent chance to operate not only the police methods with strict legislation against the old types of drugs, but also to introduce smart approaches and to change the attitude to major risk groups, particularly those that are difficult to ban. I strongly believe and I am confident - healthy and natural values will eventually win! Professor Jenishbek B. NazaralievFounder & President of the World League ‘Mind Free of Drugs’ (Bishkek, Kyrgyz Republic)Presented method on drug and alcohol addiction treatment addiction at the National Health Institute (Washington, USA) in 1996 For all queries, please contact: e-mail: mail@outofdrug.org"
"SALAH FAHAM UMAT ISLAM TENTANG KONSEP TAKAFUL Picture credit: linkedin.comIndustri takaful terus berkembang pesat selepas sistem perbankan Islam dan pasaran modal Islam di Malaysia. Perkembangan sistem kewangan Islam dibantu dan disokong kuat oleh industri takaful. Industri Takaful ini bermula pada tahun 1984 dengan wujudnya Akta Takaful 1984 yang dimulai oleh Syarikat Takaful Malaysia dengan berasaskan konsep mudharabah. Dewasa ini telah wujud pelbagai model kontrak yang patuh syariah dijadikan sebagai kontrak asas atau campuran seperti wakalah, waqaf, ju’alah, wadiah, musyarakah, kafalah dan tabarru’. Walaupun industri ini berkembang pesat selama 31 tahun namun terdapat segelintar umat Islam dan bukan Islam yang mempunyai salah anggapan terhadap sistem takaful tersebut. Di Malaysia istilah yang popular digunakan ialah Takaful namun dikenali sebagai insuran Islam di Timur Tengah dan negara-negara Islam dan bukan Islam lain. Perkataan Takaful berasal daripada perkataan Arab iaitu kafala dan dikenali sebagai Takaful yang diertikan sebagai perlindungan bersama di mana para peserta takaful menyumbang kepada satu tabungan bagi tujuan perlindungan bersama jika berlaku sesuatu bencana atau kesusahan di kalangan para peserta.Seksyen 2, Akta Perkhidmatan kewangan Islam 2013 memberikan tafsiran Takaful sebagai suatu perkiraan yang berasaskan pertolongan secara bersamayang di bawahnya peserta takaful bersetuju untuk menyumbang kepada suatu kumpulan wang yang sama yang menyediakan manfaat kewangan kewangan bersama yang kena dibayar kepada peserta takaful itu atau kepada benefisiarinya pada masa berlaku sesuatu kejadian yang telah dipersetujui terdahulu. Ternyata konsep takaful ini disarankan oleh syariah kerana terdapatnya unsur tabarru’, derma dimana para peserta saling bantu membantu sesama ahli peserta yang di dalam kesusahan. Tabarru’ bermaksud memberi sesuatu kepada pihak lain tanpa mengharapkan sebarang pembalasan. Perkara ini amat digalakan oleh Islam berasaskan al-Qur’an surah al- Maidah ayat 2 yang bermaksud ""..dan hendaklah kamu bertolong-tolongan untuk membuat kebajikan dan bertaqwa, dan janganlah kamu bertolong-tolongan pada melakukan dosa (maksiat) dan pencerobohan."" Selain itu, takaful juga merupakan sebagai salah satu strategi pengurusan risiko yang mana kolektif risiko akan dikongsi bersama dengan ahli peserta yang lain. Kekadang risiko yang dialami oleh individu adalah amat sukar untuk ditangani jika tidak ada ahli peserta yang lain juga menanggung risiko tersebut. Ini digambarkan oleh RasulAllah yang mana orang Beduin datang berjumpa RasulAllah dengan melepaskan untanya tanpa ditambat. Apabila ditanya oleh Rasullah kenapa mereka tidak menambat untanya, mereka menjawab bahawa beliau bertawakkal kepada Allah dan RasulNya. Apabila mendengar perkara tersebut RasulAlah menyatakan dengan tegas, ikat unta tersebut dan kemudian baru berserah atau bertawakkal kepada Allah. Hadis ini menggambarkan kepada kita bahawa umat Islam perlu mengambil risiko yang rendah dengan melakukan perkara yang sepatutnya dan setelah itu barulah bertawakkal kepada Allah. Malahan satu kaedah dalam perundangan Islam (qawaid fiqhiyyah) menyatakan bahawa al-darar yuzal yang bermaksud kerosakan hendaklah dielakkan. Kaedah perundangan ini menyarankan apabila kerosakan berlaku usaha hendaklah dilakukan untuk mengurangkannya. Oleh itu,Takaful adalah sebagai satu mekanisma untuk mengelakkan kerosakan apabila sesuatu perkara itu berlaku. Terdapat juga salah faham umat Islam yang menyatakan bahawa takaful itu adalah sesuatu yang bertentangan dengan qada’ dan qadar Allah. Mereka berpendapat umat Islam hendaklah menerima seadanya apa sahaja yang bakal dan telah berlaku sebagai qada dan qadar Allah. Segolongan umat Islam pula menyatakan bahawa takaful juga adalah salah satu bentuk perjudian sepertimana dalam insuran konvensional. Malahan mereka menyatakan tiada perbezaan langsung di antara insuran konvensional dengan takaful kerana beranggapan bahawa takaful juga adalah suatu bentuk jual beli perlindungan. Bagi menjawab persoalan yang bersarang di benak umat Islam terutamanya yang menyatakan bahawa takaful bertentangan dengan qada’ dan qadar Allah, sistem takaful ini adalah suatu tindakan untuk mengurangkan risiko atau mengelak kerosakan atau kesusahan apabila berlaku tanpa menafikan bahawa umat Islam tidak boleh lari dari qada dan qadar Allah. Ini bersesuaian dengan peristiwa Saidina Umar al-Khattab yang melarang umat Islam untuk pergi ke sesuatu kawasan yang dijangkiti wabak taun . Apabila ditanya oleh para sahabat adakah Saidina Umar al-Khattab cuba lari dari qada dan qadar Allah. Lalu Umar menjawab dengan tegas bahawa aku lari dari satu qadar kepada suatu qadar yang lain. Konsep takaful bukanlah berbentuk perjudian sepertimana insuran konvensional kerana konsep asas takaful ialah tabarru; derma yang mana para peserta saling bantu membantu di kalangan ahli dan bukannya konsep memberi keuntungan kepada setengah pihak semata-mata. Oleh itu tiada istilah menang atau kalah dalam konsep takaful kerana semuanya berbentuk tolong menolong dari tabungan tabarru’ tadi. Ini adalah asas perbezaan yang paling ketara di antara takaful dan insuran konvensional yang telibat dengan maysir, perjudian yang mana hubungan antara ahli sebagai pembeli dan operator insuran sebagai penjual yang mana barang (kecelakaan) belum wujud lagi sebagai pelan perlindungan. Ini sekaligus menafikan konsep jual beli polisi dalam takaful malahan ianya adalah berbentuk tolong menolong dikalangan ahli atau peserta. Pengendali takaful hanya bertindak sebagai badan pengurusan yang menguruskan tabungan tabarru’ peserta tadi bagi tujuan perlindungan bersama peserta. Tiada konsep jual beli pelan perlindungan dalam sistem Takaful. Kesimpulannya industry takaful adalah sangat penting dalam menyokong perkembangan sistem kewangan Islam di Malaysia. Fleksibiliti yang dibenarkan oleh syariah dalam industri takaful adalah pemangkin kepada inovasi produk takaful yang lain. Sokongan dari umat Islam sama ada di Malaysia atau luar Malaysia amat diharapkan dan semua salah faham ini dapat dijernihkan kembali. Malahan kita berharap bahawa system takaful akan menjadi suatu instrumen pampasan kepada kesalahan-kesalahan jenayah pada masa kini yang mana takaful menjadi mekanisme pampasan kepada kemalangan maut dan jenayah pembunuhan berdasarkan konsep diyyah dalam undang-undang jenayah Islam akan menjadi kenyataan sepertimana yang disarankan oleh undang-undang Islam itu sendiri. DR JASRI JAMAL Prof Madya di Fakulti Undang-Undang UKM dan Pengetua Kolej Dato Onn UKM No tel: 0389215921 Email: jasri@ukm.edu.my"
"Federal Court has duty to uphold Constitution Malaysia does not subscribe to a system of government based on parliamentary supremacy but one where the Constitution is supreme. OPINION Let justice be done though the heavens fall – Fiat justitia ruat caelum – is the only principle that should matter to judges, and not their positions or titles, pensions or retirement benefits, said a senior lawyer in private practice for nearly a quarter century. Senior lawyer Gerard Lourdesamy was summing up on the remarks by the Chief Justice during the Legal Year 2016. The Chief Justice, as the head of the judiciary, rightly touched on matters pertaining to the Constitution, the rule of law, human rights and the administration of justice, he conceded for starters in an email. However, he begs to differ that the Rukun Negara (National Philosophy) can be used as a point of reference when it comes to the interpretation of the Constitution, “and it does not take primacy over the supreme law of the land.” “The Rukun Negara is not a constitutional document, is devoid of any statutory basis, and neither does it have the force of law behind it.” Malaysia, he reminded, does not subscribe to a system of government based on parliamentary supremacy but one where the Constitution is supreme. “The Constitution being sui generis, unique, in a class by itself, must be interpreted broadly and liberally, when it comes to legislative encroachment by Parliament or the arbitrary exercise of power by the executive.” “Otherwise, rights and freedoms will not only become illusory but also rendered ineffective.” The correct tests to be applied in determining whether an ordinary law offends the fundamental freedoms guaranteed in the Constitution, added Gerard, was by reference to the reasonableness of the restriction and the proportionality of the response. “It’s wrong to say that it’s not for the judiciary to determine what is or is not reasonable restriction but instead it’s for Parliament to decide.” In his view, said the senior lawyer, such an approach by the Judiciary amounts to an abdication of the judicial function and negation of the judicial oath of office. He agreed that the Federal Court, sitting as the Constitutional Court, has been consistent in interpreting provisions in the Constitution that touch on the powers and prerogatives of the Rulers, the position of Islam as “the religion of the Federation”, and the status of Bahasa Kebangsaan, from a position of constitutional primacy. “However, when it comes to the interpretation of the provisions on fundamental freedoms, there’s an inclination to take a very narrow and restrictive view in deference to the supremacy of ordinary laws passed by Parliament where the executive has almost absolute control over the law-making process.” The Federal Court, continued the senior lawyer, has a legal and moral duty to uphold and defend the Constitution. “It’s the duty of the Federal Court to prevent legislative or executive encroachment or interference, whether arbitrary or otherwise, that has a tendency to truncate and reduce our constitutional rights and freedoms to pious platitudes.” ”The Court has to always remain vigilant to prevent the erosion and negation of the rule of law under the guise of national security or public order.” Gerard went on, in the rest of his wide-ranging emailed take on the Legal Year 2016, to lament on the Apex Court relying on outdated precedents from the early years of independence, and the Federal Court being very reluctant to strike down Federal or state laws that offend the Constitution by often resorting to and/or allowing procedural objections. “There’s no such thing as interpreting the constitution according to western or eastern values and norms or their respective understanding of human rights.” The only requirement, he stressed, was integrity, a clear conscience and a desire to do justice."
"Should parents be allowed to select the sex of their unborn baby? Picture credit: theasianparent.comSelecting the sex of unborn children is not a new phenomenon. Various traditional methods have been attempted in order to achieve this desire. For example, some cultures believe in consuming specific foods to produce a boy or a girl while others think that the positions in sexual intercourse does have a role in producing a child of a particular sex. Now, modern medical technologies have emerged with better chances for parents with a strong preference for children of a particular sex. These technologies include sperm sorting, prenatal diagnosis and pre-implantation genetic diagnosis. Regardless of the method chosen, there are several concerns surrounding the practice of selecting children’s sex on the child and society that needs to be considered. The welfare of the child remains the main concern among bioethicists when debating this issue where some believe that selecting the sex of children disturbs the “unconditional parental love” that parents should have for their children. The notion of “unconditional parental love” requires parents to accept any child born to them without having the desire or making any attempt to choose the traits of their child including the sex. Choosing the sex of children breaches this notion as it is argued that parents who do so will only love and wants the child if the child meets their expectation, in this case, the desired sex. Concerns further arises on the fate of the child should the procedure failed to produce the preferred sex. Will the parents still love and accept the child? On the other hand, careful thoughts should also be given to a situation where a couple has several children of a particular sex and now wishes to have a child of the opposite sex. If they try conceiving naturally and let nature takes its course but eventually luck is not on their side, what should happen to the child? Will the child be considered as a disappointment to his/her parents who already have several children of the same sex? More alarming, there might be instances where disappointed parents who have been longing for a girl after having four boys for example, but their fifth child also turns out to be a boy, may treat the boy as a girl. Other than that, the implications of sex selection on society must also be taken into consideration. Will sex selection disturb the sex ratio in a society by causing an imbalance between males and females as happening in China and India? What are the harms that may occur in a society should such an imbalance occur? Critics argue that an imbalanced sex ratio where males outnumbered females in a society as a result of strong male preference will produce several unwanted consequences such as a rise in prostitution as marriage will be difficult for lack of potential brides. Others speculate an increase in criminal activities which is associated with the large number of males due to their strong and violent characteristics. The rise in homosexuality has also been quoted as a potential consequence of a large number of males in a society since females are almost ‘extinct’! While it may be argued that procreation is a personal matter where parental autonomy to produce any child they desire should be respected, the possible implications of such action on the child and society must be equally balanced. Given the advancement of medical technologies in Malaysia including sex selection techniques, having specific laws to address this issues is crucial in order to protect the interests of individuals and society at large. By:Haniwarda YaakobFaculty of LawUniversiti Kebangsaan Malaysia43600 Bangi, SelangorTel: 03-89118432Email: hani75@ukm.edu.my"
"Has the civil court failed Indira Gandhi? Picture credit: japantimes.co.jpThe Court is a place where we can seek redress and justice. But for M. Indira Gandhi, who is engaged in a custody battle with her Muslim-convert ex-husband, the legal system is not a place she can seek any solace for her problems.Before going any further, it must be said that Muslims in Malaysia are governed by certain Islamic laws. These laws have been in existence since our independence. Islamic laws are administered by the Shariah Courts as provided by Article 121 (1A) of the Constitution of Malaysia.Shariah laws in Malaysia do not apply to non-Muslims and it is a creature of State Law. Article 74 of the Federal Constitution, read together with the State List, prescribes that Islamic law and Islamic matters – including the establishment of Syariah courts – fall under the jurisdiction of the State.The State List stipulates that the Syariah only court has jurisdiction over persons professing the religion of Islam and in respect only of 26 matters. It also further provides that the Syariah court shall not have any jurisdiction in respect of offences unless conferred by federal law.We know that under Malaysia's federal constitution, a guardian or parent can legally decide on the religion of any child of theirs under the age of 18. But for Indira's, it is unconstitutional because it was decided by her husband only.The Article 12(4) of the Federal Constitution states that the religion of a person under 18 years of age shall be decided by “his parent or guardian” — refers to both genders and both parents. According to former bar council president, Christopher Leong, Article 160, read with the Eleventh Schedule (of the Federal Constitution), states that ‘words importing the masculine gender include females’; and ‘words in the singular include the plural, and words in the plural include the singular’.More importantly, when it comes to the conversion of minors without the consent of both parents, should the court, in such circumstances, only restrict itself in the interpretation of the word “parent” in the singular to a narrow interpretation when the results can be unjust?The recent Court of Appeal’s decision basically states that it cannot interfere with the conversion of Indira’s children. It is the opinion of the Court of Appeal that this is a matter for the Shariah Court to decide upon. Might this be correct?Indira, not being a Muslim, has no right to seek recourse in the Shariah Court. She is left in limbo. This fact is clearly known to the learned judges of the Court of Appeal.How can justice be dispensed when the courts do not look beyond such ‘procedural’ matters? Is justice now reduced to mere technical procedure or will the courts fulfill their role as a mechanism that upholds the rule of law. A forum to resolve disputes and to test and enforce laws in a fair and rational manner?It is the spirit and not the form of law that keeps justice alive. ~ Earl Warren"
"Mengapakah Analisa DNA Amat Berguna Di Dalam Sistem Perundangan? Secara umumnya perkataan “DNA (Deoxyribonucleic Acid)” bukanlah satu perkataan yang asing jika ditanya kepada khalayak umum, lebih-lebih lagi bagi mereka yang terlibat secara langsung di dalam sistem perundangan seperti peguam. Jika disoroti, perkataan ini mula menjadi popular di kalangan masyarakat pada awal 2000an melalui peranan media seperti pendedahan melalui siri-siri tv popular di Amerika Syarikat yang berkisar kepada topik perundangan dan penyiasatan jenayah seperti “Crime Scene Investigation”. Namun, jika ditanya kepada masyarakat umum apakah itu DNA? Besar kemungkinan tidak ramai yang mampu untuk memberi penjelesan dengan tepat. DNA merupakan satu molekul kimia yang terdapat di dalam setiap sel badan manusia kecuali sel darah merah. Separuh daripada komposisi molekul DNA adalah diwarisi daripada ibu dan separuh lagi daripada bapa. Perwarisan ini berlaku semasa proses persenyawaan manusia. Dari sudut biologi, DNA merupakan bahan yang terpenting di dalam badan manusia. Selain daripada berperanan sebagai bahan yang menentukan kebakaan atau keturunan dari satu generasi ke generasi yang lain, DNA juga merupakan bahan yang menggerakkan atau menentukan kelancaran fungsi-fungsi biologi di dalam badan manusia. Sebagai contoh, DNA berperanan penting dalam pembinaan protein yang digunakan oleh badan manusia untuk membentuk tisu-tisu badan, organ dan juga antibodi. Pada dasarnya kira-kira 99% daripada komposisi molekul DNA adalah sama bagi setiap manusia. Namun kewujudan 1% komposisi molekul DNA yang berbeza antara seorang manusia dengan yang lain menyebabkan ianya boeh dijadikan sebagai satu kaedah untuk menetukan identifikasi seseorang individu. Sekumpulan ahli sains di England yang di ketuai oleh Sir Alec Jeffreys merupakan pihak yang mula-mula menemui keupayaan DNA ini. Bertitik tolak daripada penemuan ini, saintis-saintis telah menjalankan kajian lebih mendalam sehingga wujudnya teknik analisa DNA yang digunakan di dalam sistem perundangan pada hari ini. Dari sudut perundangan, secara umumnya analisa DNA boleh digunakan di dalam kes-kes sivil dan juga jenayah.Sebagai contoh bagi kes sivil, ianya boleh digunakandi dalam kes tuntutanmendapatkan nafkah anak daripada bapa. Sekiranya lelaki yang didakwa sebagai bapa kandung kepada anak tersebut menafikan dakwaan tersebut, analisa DNA boleh digunakan untuk mengesahkan atau menidakkan dakwaan tersebut. Bagi kes jenayah pula, analisa DNA boleh digunakan untuk membuktikan penglibatan jenayah yang dilakukan oleh individu yang didakwa di mahkamah. Sebagai contoh di dalam kes bunuh, bukti-bukti biologi seperti serpihan kuku, peluh atau darah yang mungkin ditinggalkan oleh pembunuh ditempat kejadian jenayah sekiranya berlaku pergelutan dengan mangsa boleh digunakan untuk analisa DNA untuk menentukan individu yang bertanggungjawab melakukan pembunuhan tersebut. Sebagai kesimpulannya, penemuan dan keupayaan DNA di dalam menentukan identifikasi seseorang individu telah banyak membantu menambah baik proses perundangan dan keadilan pada masa ini. Walaupun terdapat teknik-teknik forensik lain seperti analisa cap jari dan analisa jenis darah yang terlebih dahulu digunakan di dalam proses perundangan, teknik-teknik tersebut tidak dapat menandingi keupayaan analisa DNA. Hal ini kerana, selain daripada keupayaan analisa DNA yang dapat menentukan identifkasi seseorang individu secara lebih spesifik berbanding teknik-teknik forensik yang lain, analisa DNA juga telah diiktiraf oleh para saintis sebagai teknik forensik yang paling boleh dipercayai sehinggakan ianya dianggap sebagai “gold standard” di dalam sains forensik. Mohd Munzil Bin Muhamad Pensyarah Fakulti Undang-Undang, Universiti Kebangsaan Malaysia mohdmunzil@ukm.edu.my 03-89216362"
"PEMARTABATAN BAHASA MELAYU SEBAGAI BAHASA MAHKAMAH DI MALAYSIA Bahasa merupakan medium atau alat komunikasi antara satu pihak dengan pihak yang lain. Bahasa digunakan untuk menyampaikan mesej atau maklumat dengan cara yang berkesan. Bahasa juga memainkan peranan yang sangat signifikan sebagai lambang identiti sesebuah negara. Di Malaysia, bahasa Melayu menjadi simbol dan identiti negara kita. Pada dasarnya, bahasa Melayu mendapat pengiktirafan sebagai bahasa kebangsaan dan bahasa rasmi di Malaysia menerusi undang-undang tertinggi tanah air, iaitu Perlembagaan Persekutuan. Peruntukan Perkara 152 menjelaskan kedudukan bahasa Melayu yang telah diangkat martabatnya di Malaysia. Selain Perlembagaan Persekutuan, penggubalan Akta Bahasa Kebangsaan 1963/67 memperkasakan lagi kedudukan bahasa Melayu di negara ini. Pengenalan Akta Bahasa Kebangsaan 1963/67 secara jelasnya memperuntukkan tentang bahasa yang perlu digunakan di mahkamah. Secara spesifiknya, hal ini dapat dilihat dalam Seksyen 8 Akta Bahasa Kebangsaan 1963/67 yang memperuntukkan bahawa bahasa Melayu hendaklah digunakan sebagai bahasa mahkamah di Malaysia. Peruntukan ini meletakkan satu obligasi yang berat terhadap badan kehakiman dalam menjalankan prosiding dalam bahasa Melayu. Dalam merealisasikan hasrat Seksyen 8 Akta Bahasa Kebangsaan 1963/67, terdapat beberapa perkara yang harus diberikan perhatian dalam memartabatkan bahasa Melayu sebagai bahasa mahkamah di Malaysia. Antaranya, aspek peristilahan undang-undang yang tepat dalam bahasa Melayu. Undang-undang merupakan suatu bidang yang kaya dengan istilahnya yang tersendiri. Seperti bidang perubatan yang mempunyai istilah saintifiknya yang tersendiri, bidang undang-undang pula mempunyai istilah undang-undangnya. Istilah tersebut adalah dalam bahasa asing seperti bahasa Inggeris, bahasa Latin ataupun bahasa Perancis. Umum mengetahui bahawa kebanyakan istilah undang-undang wujud dalam bahasa Inggeris. Oleh itu, apabila istilah-istilah tersebut diterjemahkan ke dalam bahasa Melayu, badan kehakiman harus memastikan bahawa istilah yang digunakan adalah tepat dan menepati maksud istilah Inggeris yang asal. Kadangkala, terdapat juga istilah yang tidak pernah diterjemahkan ke dalam bahasa Melayu sebelum ini. Dalam konteks ini, harus dipastikan bahawa kaedah padanan yang betul telah digunakan dalam menterjemahkan istilah Inggeris yang berkenaan. Di samping itu, perkara yang harus diberikan fokus ialah tatabahasa bahasa Melayu. Sistem ejaan yang betul, tanda baca, kata ganda, kata majmuk, “di” sebagai imbuhan dan kata sendi nama, hukum “diterangkan menerangkan” dan sebagainya seharusnya diambil kira dalam menjalankan prosiding dalam bahasa Melayu. Walaupun terdapat segelintir pihak yang memandang isu ini sebagai perkara yang remeh, namun perlu diingat bahawa sebagai negara yang menjadikan bahasa Melayu sebagai bahasa kebangsaan, kita seharusnya menekankan pengunaan bahasa Melayu yang menepati hukum bahasa. Sehingga kini, masih terdapat kesalahan tatabahasa yang ketara dalam penghujahan para peguam dan keputusan mahkamah di Malaysia yang perlu diambil tindakan segera. Bukan itu sahaja, malah kebanyakan sumber rujukan undang-undang, khususnya buku-buku rujukan adalah dalam bahasa Inggeris kerana pengaruh sistem undang-undang Inggeris atau common law. Ini menjadi antara cabaran utama pengendalian prosiding undang-undang dalam bahasa Melayu. Sudah menjadi kebiasaan bahawa rujukan dalam bidang undang-undang kebanyakannya dalam bahasa Inggeris. Apabila sumber ini wujud dalam bahasa Inggeris, ia menyulitkan para pengamal undang-undang dan anggota kehakiman untuk mengalih bahasa ilmu yang diperoleh ke dalam bahasa Melayu. Sesungguhnya, sudah tiba masa untuk memartabatkan bahasa Melayu sebagai bahasa mahkamah di Malaysia. Bagi tujuan tersebut, penggunaan bahasa Melayu yang tepat harus diutamakan kerana mahkamah menjadi sumber rujukan yang penting menerusi keputusan kes yang dibuatnya. Penekanan kepada aspek bahasa Melayu harus dititikberatkan oleh mahkamah agar para pengamal undang-undang sentiasa mengambil inisiatif untuk memantapkan lagi penguasaan bahasa Melayu. Para penyelidik dan penulis juga harus menerbitkan penyelidikan dan penulisannya dalam bahasa Melayu ke arah memperkaya khazanah ilmu undang-undang dalam bahasa Melayu di negara ini. Sokongan, kerjasaman dan sumbangan semua pihak yang terlibat dalam bidang perundangan amat penting ke arah melakukan transformasi bahasa di mahkamah-mahkamah Malaysia. Dr. Ramalinggam RajamanickamPensyarah Kanan, Fakulti Undang-undang Universiti Kebangsaan Malaysia (UKM) rama@ukm.edu.my 03-8921 6355 (samb. 6376)"
"Many driven by ‘collective amnesia’ on Sabah, S’wak Joseph Francisjoseph@asklegal.myIt’s not surprising, as noted by former Prime Minister Mahathir Mohamad, that people are talking as if Sabah and Sarawak are not in Malaysia. COMMENT If we say that former Prime Minister Mahathir Mohamad isn’t really familiar with 1963 whereby North Borneo and Sarawak came together with Malaya, merged with Singapore, to form an Equal Federation of the two Borneo Nations and the peninsula, no one is likely to believe us. However, given Mahathir’s reported remarks on Wednesday in the media on Sabah and Sarawak, where he blamed Putrajaya for the ""unrest"" in the two Borneo nations, it would be safer to conclude that the former Prime Minister, far from being not up to speed, was indeed very much aware on that score, but prefers to be driven by a “collective amnesia” like many in the peninsula and perhaps not a few in Sabah and Sarawak as well.If everyone is talking as if Sabah and Sarawak were not part of Malaysia, it’s not due to weakness on the part of the Federal Government in Putrajaya as alleged by Mahathir, but far from it, due to him and his predecessors being not only in non-compliance on the Federation of Malaysia Agreement 1963 (MA63), as alleged numerous times by Sabah rights advocate Jeffrey Kitingan, but in fact even violating it, as charged by his furious former aide Phillip Among over coffee at McDonald’s in Kota Kinabalu.MA63 is an International Treaty recognized by the United Nations, and the governments of the United Kingdom, North Borneo, Sarawak, Singapore, Brunei and Malaya. MA63 cannot be amended by the Malaysian Parliament.It’s also an Instrument of Trust Deed lodged with the United Nations. This means the Federation of North Borneo and Sarawak with Malaya is not ""permanent"". It can be terminated at any time by the Governments of North Borneo and Sarawak. It’s like a child coming of age when he turns 18 or 21 as the case may be – 18 at the Public Trustee and 21 to be eligible to vote – and having the luxury of deciding whether to move out of the parent’s home or staying with them.The Malaysia of today is not the Malaysia mentioned in MA63. The interpretation of Federation under Article 160 of the Federal Constitution clearly states that the Federation is based on the Federation of Malaya Agreement 1948, reinforced by the Federation of Malaya Independence Act 1957. Sabah and Sarawak are not signatories to the Federation of Malaya Agreement 1948 and are not covered by the Federation of Malaya Independence Act 1957. Yet, after Singapore ended its merger with Malaya in 1965 and exited the Federation, Sabah and Sarawak were reduced in status -- via an amendment to the Federal Constitution -- from being Equal to Malaya to being in the same category as the states in the peninsula and designated the 12th and 13th states. It would be more accurate to say that Sabah and Sarawak are nations in the Federation while the others are states.The MA63 decides. It’s up to the Governments of Sabah and Sarawak to exercise their Full Autonomy status in MA63. They don’t have to ask from Putrajaya something that already belongs to them. If the Sabah and Sarawak Governments want to keep on the ""safe"" side, they can wait for the Sabah and Sarawak Assemblies to pass a motion on the matter. Picture Credit: charleshector.blogspotRead Further Here:http://www.sapp.org.my/pdf/msia_agreement_1963.pdf"
"Plight of 'squatters': Their homes, their story ... In as much as we talk about justice, upholding the rule of law, there are consequences in enforcing such rights. There is actually a cost. The cost is a social one. Occupants who do not have the earning capacity to own a home are left in a lurch. They potentially become homeless. In this final part, let's hear their story. Let's see things from their point of view. This is what of some occupants at Kg Mutiara, Batu Ferringhi, Penang, have to say: Puan Hamidah Age: 53, single mother I have been living here for over 30 years. I was born here. We feel hardship, as they want to take the land away from us. If they give us a house then … There are 3 families here, there is a total of 13 of us in this house. We work at the local hotels and tourism businesses. If we relocate it will be hard for us to find work. We feel sad over this plight. It will be hard for us if we have no home. Mr Rajoo Age: 60, retiree There are 5 people in my family. We have been living here since 1973. We moved out from where Parkroyal is currenty located. I was born there in 1956. I came here when I was in Form 5. From here I to go school at Batu Lanchang. I cycle to school every day. I was very happy, very happy. I don’t mind cycling to school despite it being so far away. I had a lot of friends at school. So many happy things that happened when I was at school. We need a house for house. The landlord can take the land, it is his right. We occupied this land legally but the current landowner says we are illegal. That is something I cannot accept. We don’t want money. Money is no use. We need a house. I have 5 persons in my family. I am like this, my wife is bed ridden. My daughter needs to take care of us. I need a house as renting is too expensive. It costs over RM1,000 to rent a house in Batu Ferringhi. I am surviving by my SOCSO payments, of which is RM900 per month. My son is only a freelance worker. Sometimes he has a lot of work, sometimes he does not have work. I can’t afford to buy a house or rent a house. So, I need a house for my family to stay. No one is rich here. All are working in the hotels. We are faced with high living cost. We only need a home, the rest, we will make do on our own. Encik Rosman Age: 55, father of 3 I arrived here when was 18. We do not oppose development but at the least the land owner should discuss with the occupants of the land. He can do whatever he wants. Develop the land. We are not opposing that. But at least compensate a home with a home. We have not been living here for say 6-7 years but for around 50 – 60 years We moved to this land from the land where Parkroyal is located. The owner then, wanted to develop that land and he offered us this piece of land to relocate. So we all moved over here. That was in 1973, we were also given a sum of RM1,400 to assist us in relocating. The land owner also obtained approvals for us to construct our new homes and to get water & electricity supply. As we said before, we do not oppose development but the problem is the land owner does not want to meet with the occupants. He does not want to discuss this matter. We have no other home. If we did, it would not be a problem. All we ask for is a home, can be a mere flat, we are willing to move. What is the use of say RM50,000 or RM60,000 in compensation when we cannot own a home? It is not a matter of money. It’s not that easy for us to uproot ourselves. We can’t just pack up, leaving our parents graves at the masjid. We want to be in this location. I am just a gardener at the local school. My eldest daughter is married, my second child works in the hotel nearby and the youngest is a delivery person for a pizza outlet. They all live here. We were born here. This is our home. Picture credit: therocket.com.my AskLegal had the opportunity to speak with the member of parliament for Bukit Bendera, Penang, Encik Zairil Khir Johari, on the the plight of the occupants at Kg Mutiara. Here is an excerpt from the interview: What are your views on the current situation at Kg Mutiara? My view echoes the State Government’s view. When you talk about justice there, is legal justice but there is also social justice. Each government has its own approach but our approach for the last 7-8 years since 2008 has been to ensure, although we recognise and realise that land owners have very clear rights under the National Land Code, at the same time there is also the humane aspect of things. The Penang State Government takes this view, that as much as the land owner has rights and he may pursue legal means to get vacant possession, the State Government also has rights, one of them is to approve or not to approve any plans for development. So using that as our leverage, we essentially put in this condition: that if any land were to be developed in Penang, all 'squatter' issues must first be settled. Essentially, what it means is that, they should be satisfactorily compensated. Over the years the State Government has developed a benchmark but again it differs from case to case as it is not a legal condition. For state land, the minimum compensation is typically one low cost unit or equivalent in cash (RM42,000). We want people to have a roof over their heads. The last thing we want is for people to be homeless overnight. These matters are actually between to private individuals and has nothing to do with the state but the state’s role here is to act as a facilitator in order to ensure people are not left homeless and it is a win-win situation. However, the predicament in Kg Mutiara is we are not dealing with a developer. We are dealing with an individual land owner who states that he has no plans to develop. What can the state do to assist the occupants in the event they are evicted? We offer PPR (Projek Perumahan Rakyat) low cost flats in the case that they are evicted so they are not homeless. But there are no PPRs in Batu Ferringhi, that means displacement. What we try to avoid is displacement of communities as their lives are there. The island has limited PPRs. The community will no longer be intact though. We have proposed to the occupants PPR as a last resort. This gives them some breathing room. How many kampong homes will be potentially displaced in Penang in the coming years?Thousands. In my constituency alone, we are looking at over one thousand."
"Where's the street-wise Hercules to fight the rising odds? Picture credit: siakapkeli.myBukit Bendera Umno division chief Datuk Ahmad Ismail said the matter (eviction of Kg Mutiara occupants) was not over yet as the vacant possession order was still in effect. – The Star, 29th December 2015And so the saga of 'squatters' vs developers continues with revelations, twists and turns ... From the last article, we know that if anyone intends to claim an interest over land they must have the said interest registered. But, the law being the law, there are exceptions. In this case, equitable estoppel. Claiming the protection of equity In the case of Cheng Hang Guan v Perumahan Farlim Sdn Bhd [1993] 3 MLJ 352 the Supreme Court held that for equity to arise there needs to be: a representation made to occupant occupant relied on the representation occupant acted on the representation (in this case expended monies) Brief facts of Cheng Hang Guan case is that the original land owners, Khoo Kongsi of Penang, informed the occupant that he could continue planting vegetable as long as he wished if he paid the rent. Based on the representation, the plaintiff installed a sprinkler system amounting to RM12,000. The court allowed the defence of estoppel. Unless the occupants can establish the pre-requisite conditions shown above, they have no chance to defend an action brought against them by the land owner. Satisfying equity Now to stir things up a little bit more, even if the occupant is deemed as a tenant coupled with equity, the said equity can be satisfied and vacant possession still ordered against the occupant. How come? Well, read on ... In the case of Bencon Development Sdn Bhd v. Yeoh Cheng Cheng [1996] 4 CLJ 35. Dato Abdul Hamid J (as he then was) it was held that: ""The doctrine of equitable estoppel was introduced in order to be fair; fair to both the tenant and the landlord. It will not be fair to the tenant or licensee - who has expended money on the land belonging to the landlord with the latter's consent - to be chased out of the house and the land without his equity being satisfied. How the equity is to be satisfied depends on the facts of the particular case, taking into consideration all the relevant factors. In determining how a tenant's equity is to be satisfied, the Court should not only consider what is fair to the tenant, but also what is fair to the landlord or landowner. The Court must also consider the effect of the award or compensation on the purchasers of the houses to be built as well as its general effect on the community. Even the past and the prevailing practices in the country should be taken into account."" In the case of Ahmad Shazilly bin Ismail Bakti v Nik Salma Zaidah binti Hj Wan Mohd Zaid [Civil Appeal No. D-02-2146-2011] the Court of Appeal stated: “If we may also add that even if the Defendant is to be recognized as a tenant coupled with an equity, her equity has long been met or satisfied by Nik Ruhiah who pursuant to the SD had allowed her to build the house and stay on the said land rent free for 22 years until 2008 when she was asked to quit by the Plaintiff.” It is common practice, for eviction cases, the landowners will usually prepare a valuation of the occupant’s 'property'. The value of the structure that stands on the land. More often than not landowners are prepared to pay the value of the structure to satisfy equity. Of which does not amount to much when you realise most of the dwellings are simple structures. So as much as the occupant claims equity, that does not mean they will be allowed to occupy the land forever. Pay the value of the structure as ‘compensation’ and the occupant will need to vacate the land. In the next part we shall examine the plight of occupants who are evicted."
"Wherever I lay my hat ... That's my home. Picture credit: kwiknews.myGEORGE TOWN: Villagers in Kampung Mutiara, Batu Ferringhi, are up in arms over another planned demolition exercise. Batu Ferringhi JKKP chairman Ismadi Abu Bakar said they intended to form a human barricade against bulldozers to prevent their homes from being demolished.Children sat in groups holding placards reading, Kami mahu rumah kami diganti!!! (We want another house!!!), Dimana hak kami (Where are our rights) followed by elderly women in wheelchairs protesting against the demolition. – The Star, 29th December 2015Picture credit: ismaweb.netDo we need to count how many times we've read such news? People who have lived for generations on a piece of land, just to be evicted as development comes. To make things worse, some developers offer a paltry sum of money as compensation. Then, you have a few who will not offer anything at all.Many will scream ""This is unfair"" ... ""Injustice"" ...But, what is justice or fair in such an instance? Firstly, let's have a look at how such situations arise ...How did these people come to occupy the land?Well, in the past when there were no chemical fertilisers, it was common for land owners to allow people to live on the land and rear ducks, chicken or pigs. The excrement was used as fertiliser for the land owner’s coconut plantation or vegetable farm.Then there were other land owners who didn't want their land to left empty, for fear of trespassers or squatters. So, for a nominal sum called 'ground rental' they allowed people to settle on the land.In short, these occupants are neither squatters nor trespassers. They are there as occupiers with licence or consent.A distinction made by the Supreme Court in the case of Bohari bin Taib & Ors. V Pengarah Tanah Galian Selangor [1991] 1 MLJ 143.The occupants know that they will not be given any interest over the land, and once upon a time it did serve a purpose. But again, things were simpler then.Ownership of land in MalaysiaIn Peninsular Malaysia, laws pertaining to land (with the exception of Malay Reservation land) is governed primarily by the National Land Code 1965 (NLC).Section 340 of the NLC provides that all rights and interest over land MUST be registered - What we've come to know as a title or 'geran'.Since the law is based on the Torrens System (where “the register is everything”) ownership is evidenced by having one’s name on the title. There are three routes to ownership. The first method is by “dealings,” such as by purchase and followed by transfer, which must be in the prescribed form followed by registration at the relevant land registry. – Prof Salleh BuangEquity plays its roleHowever, there are exceptions to the rule. This is where equity rears its head. A legal concept that was enunciated in the UK case of Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130.The doctrine of 'promissory estoppel’ was borne and eventually, adopted in Malaysian land law cases.However, it must be noted that estoppel does not extinguish rights. It only serves to suspend, and not wholly to extinguish the existing obligation. The promisor may, on giving due notice, resume the right which has been waived and revert to the original terms of the contract.In the next part we shall explore how estoppel operates in the context of land eviction cases."
"In the sh*t. Now what? Lawyers are there to provide assistance - to navigate the complex procedures and jargon of the legal world. But, too often people feel that even being able to get access to that legal assistance is difficult. Some feel intimidated while others have absolutely no idea where to start.So, we thought we’d put together a simple guide for you. Following the time tested questions – Who, what, when, where, why and howWho needs a lawyer?If one is arrested by the police, then you will want the services of a lawyer to represent you for sure!But aside from that, lawyers are also sought out for matters such as purchasing/selling property, drafting business contracts or maybe to adopt a child.What are lawyers?It’s often said that a lawyer is an officer of the court. They not only owe a duty to their client but they also owe a duty to the courts and the legal system. They are here not only to provide legal assistance but to also uphold justice.""We are enjoined to do so by tradition, legislation, our social conscience, and a sense of responsibility that arises from the privilege we have of appearing before the Courts of Law."" - Dato’ Ambiga SreenevasanWhen do you need a lawyer?When you are in doubt over any matter relating to the law, it is advisable to consult a lawyer. This is for your own protection.Assistance in matters that involve the courts or other forms of legal matters. For some matters legal, representation is required by law and other instances they are not, but seeking out their professional advice is most prudent.Court matters can be civil or criminal. One may need to commence a suit to recover a debt or perhaps defend a defamation action. Where do you find a lawyer?Well, there is always Google but lawyers are also listed in our Yellow Pages. (We haven’t seen a physical yellow book in a bit, but yes it’s still around. Also, with a pretty easy to use online page of yellow-ness. Fun fact - the yellow pages is our biggest business directory, capturing 60% market share)However, the best place to locate a lawyer will always be at the Malaysian Bar Council’s website. You can locate a lawyer, a law firm or even search for a law firm according to their areas of practice.Locate a lawyerLocate a firmLocate a firm by area of practiceHow to handle the meeting?Once you have located a lawyer, always remember that the lawyer is a stranger to your problem. Hence it is necessary to ensure that the lawyer is properly briefed.Bring all documentary proof and speak in a detailed and clear manner. Your lawyer needs to have all the information so that he or she may advise you appropriately.Do not withhold information or even skew a situation to your favour, as tempting as this may be, it’s of no help to you! Instead, it may even end up being detrimental to your case.When in doubt ask, ask, ASK! It is the duty of your lawyer to clarify things for you. It’s never too much trouble. The process will be much smoother when you are in the know as to your legal position and how the legal process will be like.Obtaining legal advice at an early stage will save you a lot of time, money and potential heartache.And, no, we haven’t forgotten an all important W…Why engage a lawyer?Simple."
"Malaysia Civil Liberty Activists Commence Suit Against Santa Claus The Malaysia Civil Liberty Activists (MCLA) announced today that it was bringing a lawsuit against Santa Claus for violations of the civil rights of children.A MCLA spokesman, Mr. E. Scrooge stated that, ""Mr. Claus is violating children's right to privacy and has been putting that information in a vast database. The information is then used by the law enforcement arm of Mr. Claus' organisation to determine which children are considered naughty or nice. It is obvious Mr. Claus has violated the children's rights, as we have alleged in our suit, because of the memos and other company information we have obtained. In addition, we believe Mr. Claus has no right to unilaterally adjudicate if a child has been naughty or nice. We believe that each child has the right to representation and they are deemed nice unless proven naughty.""Among the documents presented to the courts today was a memo in which reads, in part:You better watch out.You better not cry.You better not pout.I'm telling you why.Santa Claus is coming to town.He sees you when you are sleepingHe knows when you're awake,He knows when you've been bad or goodSo be good for goodness' sake.Mr. Scrooge claimed the document, which was obtained from a worker in the distribution department of Mr. Claus' organisation, ""... clearly shows that a child is subject to intimidation, that they may not cry or pout. Also, it contains evidence that there is clandestine surveillance of children. This is a serious breach of the child’s privacy!""Lawyers at the Bar Council also confirmed today that they were investigating the possibility that Mr. Claus was at the core of a vast conspiracy against children.Anonymous sources from inside the Council stated, ""We believe a large number of parent, ministers and teachers are involved in this business and we expect several of them will testify for the state in return for a lighter sentence.""In addition, the same sources indicated a parallel investigation by the Bar Council and Bukit Aman on possible charges of smuggling on the part of Mr. Claus, ""our records do not show Mr. Claus, or anyone else paying any import duties, taxes or GST on any items he has delivered. Since Mr. Claus has representatives in Malaysia we believe he should have to pay GST on all of the goods he delivers.""A spokesperson from the MACC who did not wish to be named, stated that, ""Investigation papers have been opened on Mr. Claus on the basis that there is a need to investigate how this operation is funded. Is it by an anonymous but generous donor? Does it cost billions? We need to get to the bottom of this.""Lawyers for Mr. Claus stated, ""The charges of the MCLA are absurd. Mr. Claus is a well-known and highly respected figure. His supporters are from around the world and his message of love and respect can, in no way, be taken as a form of ""mind control"" or a violation of the civil rights of children.""The lawsuit is complicated by the fact that Mr. Claus is not a resident of Malaysia or any country which Malaysia currently has an extradition treaty. It is unknown where Mr. Claus is at the moment, but it is believed he is hiding out at his north pole estate.In a brief statement, read by his lawyer, Mr. Claus said, ""I find the charges of the MCLA absurd and am confident they will be rejected by the courts. As for any criminal charges, I believe the Attorney General of Malaysia will discover they have no basis.""Experts are uncertain what possible effect the suit or possible pending charges might have on Mr. Claus' Christmas travels this year.* This is a work of fiction. Adapted from the original work of David Bibb. Names, characters, businesses, places, events and incidents are either the products of the author’s imagination or used in a fictitious manner. Any resemblance to actual persons, living or dead, or actual events is purely coincidental."
"​Tribunal For Consumer Claims in Malaysia - Get To Know It Christmas is just round the corner and this is the time to shop! Car manufacturers are offering their year end bargains, malls are filled with the latest fashion collections and beauty saloons have packages galore to ensure that you look your best.But, sometimes we get caught up in the glossy hype and end up with goods or services that are less than satisfactory. Ain’t that familiar? We purchase a car and it’s a lemon. The car is fraught with problems and we end up going back to the service centre over and over again. Sometimes, it does not even get rectified at all. We buy an electrical appliance and the thing burns out within a month or so. Or the contractor who renovates that dream home of yours, ends up delivering a job akin to what Dr Frankenstein would be proud of. When faced with such dilemma what do we do? More often than not, the amount involved does not make it worth your while to sue the trader. Legal fees and time required to attend court is a drag. But, then again, the amount is not that little that we can easily just brush it aside as a lesson learnt. Well, there is always a solution. For consumers who are unhappy with goods or services supplied you can now bring an action in the Tribunal For Consumer Claims (the “Tribunal”).The Tribunal The Tribunal is an independent body established under the Consumer Protection Act 1999 (“the Act”) to hear and determine claims filed by consumers under the Act. This forum provides an alternate avenue for consumers to file claims in an easy, inexpensive and speedy manner. It's Jurisdiction The Tribunal has the jurisdiction to hear: any claim in respect of any matter within its jurisdiction to hear as provided for under the Act; where the total amount claimed does not exceed RM25,000.00; any claim in respect of any goods or services for which no redress mechanism is provided for under any other written law; and a claim based on a cause of action which accrues within 3 years of the claim. Limitations on jurisdiction Generally, the Tribunal CANNOT hear any claim relating to: personal injury or death; the recovery of land or any estate or interest in land; dispute in respect of title of any land or estate or interest in land; dispute concerning the entitlement of any person under a will or on any intestacy; dispute on matter in respect of franchise, good will, trade secrets or other intellectual property or any chose in action Types of claims Most of the claims that the Tribunal hears relates to: misleading or deceptive conduct in relation to services as to the nature, characteristics, suitability for a purpose, quality and quantity of the goods or services; false or misleading representation in relation to goods or services Now, the big question...HOW?Here is a short guide as to how one can file a claim with the Tribunal and what happens next: The claimant is required to fill up a claim form known as Form 1. It can be obtained, free of charge, from the Tribunal branches or be downloaded from the E-Tribunal portal. A fee off RM5.00 is chargeable upon filing though. The Form 1 is then to be served, by the claimant on the trader. A date will be set for hearing by the Tribunal. The trader may then want to settle this matter or it may file its own defence by filing Form 2 and serving it on the claimant. At the hearing there is no legal representation. In short, no lawyers will be allowed to assist in the matter. The President of the tribunal will hear the claim and assist both parties. The Tribunal provides assistance on matters of law etc. The Tribunal will then make a ruling at the end of the hearing. The claim may be settled amicably between parties, of which is a common thing. However, and award may be made it might be in favour of the claimant or perhaps the claim is dismissed. If the award is made in favour of the claimant and the trader does not adhere to the award, it is a criminal offence in the Act. So, next time when you get a lemon, here's the recipe to make lemonade!How to fill up Form 1How to fill up Form 2Flow chart for online filing of Form 1"
"Peninsular lawyers not completely ‘barred’ from Sabah, S’wak Joseph Francis joseph@asklegal.my If a party in any legal proceeding requires legal representation of a lawyer from outside Sabah, that party can get the lawyer concerned to apply for ‘ad hoc’ admission to practise in that matter. BAR The Sabah Law Association (SLA) begs to differ with those who continue to criticize a Federal Court decision on 7 December 2015 on whether a lawyer called to the Sabah Bar may represent a party in arbitration “proceedings conducted and heard in Sabah”. “The Federal Court decision laid any doubt to rest.” The decision, said a spokesman, reaffirms and reinforces the “exclusive right” of Sabah lawyers to practise in Sabah as stated in section 8(1) of the Advocates Ordinance (Sabah cap. 2). The SLA expressed confidence that “Sabah will not lose out in arbitration business” following the Federal Court decision. “The decision of the apex court further strengthens the notion that ‘unqualified lawyers’ from outside Sabah are not entitled to perform any form of legal work whether outside or in the courts. Otherwise, they would be committing an offence pursuant to section 16(1) of the Advocates Ordinance of Sabah,” said the spokesman. “This includes legal services such as conveyancing works, banking documentation, drafting agreements, and corporate and advisory works performed in Sabah.” The spokesman reminded that by a Joint Press Statement with the Advocates Association of Sarawak (AAS), the SLA had raised this issue on 19 October 2015 in stating that “legal services conducted in either Sabah or Sarawak are an exclusive right of lawyers from either of the two Borneo states respectively”. The SLA position on the Federal Court decision comes with a caveat. Notwithstanding the Federal Court decision, added the spokesman, the SLA would like to reiterate that the prohibition was not absolute. “The door is not tightly shut to lawyers from outside Sabah,” said the SLA. “Thus, if a party in any legal proceeding requires legal representation of a lawyer from outside Sabah, that party can get the lawyer concerned to apply for ‘ad hoc’ admission to practise in that matter pursuant to section 10(c ) of the Advocates Ordinance.” The discretion to allow such as application was wholly within the purview of the Chief Judge of the High Court of Sabah and Sarawak, continued the spokesman. “For example, such permission was obtained recently by a litigant who sought to engage Geoffrey Robertson QC for a matter heard in the Federal Court in a case originating from Sabah.” Sabah lawyers would greatly benefit, said the SLA, from the Federal Court decision in that it would put a stop to non-Sabah lawyers entering Sabah just to represent parties in arbitration proceedings without applying for “ad hoc” admission. “Such a practice would definitely take away the arbitration market business from Sabah lawyers.”"
"Ex-Senior Cop: Agong was ‘misled’ on Pardons Board on Anwar Joseph Francis joseph@asklegal.my If the Prime Minister had advised the Agong ""appropriately"", then Attorney General Abdul Gani Patail would have been brought before a Tribunal and not removed. KUALA LUMPUR: If the Agong had been ""appropriately"" advised on the matter by the Prime Minister when he had an audience with the head of state to replace Attorney General (AG) Abdul Gani Patail, he (Agong) may not have consented to the AG being removed but instead put him (AG) before a Tribunal “as what happened to former Chief Justice Salleh Abbas”, said a former investigator Mat Zain Ibrahim in an email. “If the AG, whose duty was to advise the Agong, concerning legal matters as stated in the Constitution, has no qualms in 'deceiving' him (Agong) and yet was being 'protected' by the powers that be, what are the chances for the ordinary people, not being deceived or bullied by these very same people, whom we are supposed to trust.” Mat Zain, taking his cue from statements by the Inspector General of Police Khalid Abu Bakar on jailed ex-PetroSaudi employee Xavier Andre Justo in Bangkok and on an article in the Malaysia Today blog last week, was begging to differ again with a November 4 statement by de facto Law Minister Nancy Shukri that Gani Patail “was removed due to health reasons and that the process was done legally”. Again, added Mat Zain, “she did not disclose the fact that there’s an official report against Gani Patail for 'concealing material facts' from the Agong as per my report dated 19 April 2015 and that a DPP had already issued a fresh Order to Investigate (OTI) on 31 March 2015, about two weeks after the Pardons Board proceedings”. Any Act done by any person, intentionally or otherwise to challenge or undermine the privilege and status of the Agong must be handled at that very instance with the full force of the law to be applied, argued Mat Zain. “The Agong takes precedence over all other persons in the Federation, while the Permaisuri Agong comes next after the Agong. This is stated in Article 32(1) and (2) of the Federal Constitution.” Briefly, Mat Zain wants to know what happened to the police report he lodged on 19 April 2015, vide Putrajaya Presint 7 Rpt.No.3162/15, against then AG Gani Patail for allegedly “intentionally concealing material facts from the Agong during the Pardons Board for Wilayah Persekutuan Kuala Lumpur, Labuan and Putrajaya proceedings on 16 March 2015.” In this particular police report, continued Mat Zain, he outlined the relevant sequence of events and attached documentary evidence, among them the Affidavit affirmed by the Director General of Legal Affairs of the Prime Minister’s Department, as well as an official reply by Shukri in answer to a parliamentary question on 25 March 2014 i.e. a year before the Pardon Board proceedings, and a couple more documents. The police report, said Mat Zain, was reported by malaysiakini on 21 April 2015, “AG’s silence could have affected Anwar’s pardon”, and also by the malaysianinsider the same day, “Rejection of Anwar pardon defective, Gani lied to Board says ex-senior cop”. Mat Zain went on to say that the authorities concerned and the Keeper of the Rulers’ seal would have read the two media articles. “They lodged a police report against the malaysianinsider for publishing an ‘erroneous’ royal report on or about 30 March 2015. This resulted in several of the malaysianinsider’s senior editors being detained by the police.” Had his police report contained any “erroneous” statement or statements regarding the Pardons Board’s proceedings, said Mat Zain, the authorities concerned especially the Attorney General’s Chambers (AGC) “would have pounced on me, without waiting a minute longer”. Picture Credit: majaps.my"
"NCR activist lawyer faces false documents charges Joseph Francis joseph@asklegal.my Kong Hong Ming, 62, plans to enter a plea of autrefois acquit and is also involved in a civil suit on the same matter. SUIT A former Sabah Minister and senior lawyer, well-known for not only taking on NCR (native customary rights) cases but handling them pro bono, has been charged in the Magistrate’s Court in Kota Kinabalu on four counts of using false documents in two separate cases involving land matters. If convicted, each count under section 471 of the Penal Code, punishable under section 465 of the same Code, carries a maximum jail term of two years or fine or both. Kong Hong Ming, 62, (2nd right) an engineer with the Sabah Government for ten years before he took up law in London and has been practising for 24 years, faces two counts, first and second count, of using a forged Sales & Purchase Agreement dated 31 Oct 2005 involving land under title CL No. 215012847 between a Jeff Leong and a Albert Leong with March Advantage Sdn Bhd. He pleaded not guilty before Magistrate Stephanie Sherron Abbie and was granted bail of RM8,000 in two sureties. He also pleaded not guilty before Magistrate Cindy McJuce Balitus on two other counts, third and fourth count, of using a forged Memorandum of Transfer for the same piece of land and involving the same parties. He was granted bail of RM4,000 deposited on each case with two sureties. The courts granted the prosecution’s applications to have all four counts consolidated and transferred to another Magistrate’s Court. The courts set Jan 13 for case management. Kong allegedly committed the first and second offences at 8.42 am on 9 Feb 2012 at the Land Registry Division Office of the Sabah land and Surveys Department in Kota Kinabalu and the third and fourth offences at 2.12 pm on 24 Mar 2014 at the Registration Division of the High Court of Sabah and Sarawak in Kota Kinabalu. Counsel James Tsai, acting for Kong together with Raymond Szetu and Colin Lau, informed the Court that his client would enter a plea of autrefois acquit since the prosecutor in the case had said that there was no criminal element in a private complaint made by a party before Magistrate Abbie. The defence was directed to reserve their arguments for the next mention date after Deputy Public Prosecutor Gan Peng Kun pointed out that autrefois acquit was not applicable as private complaint and a criminal case are two separate matters. Counsel Szetu informed the Court that the documents in question are the subject matter in an on-going civil suit at the High Court. “The complainant is abusing the process by coming to the Magistrate’s Court to pre-empt the decision of the High Court,” said Szetu. “The police report alleging forgery was made in 2006. Why prosecute only now?” DPP Gan replied that the instruction to charge came from Putrajaya based on the investigation by the police and had nothing to do with the on-going civil suit. Counsel Dominic Ghani is holding a watching brief for the Sabah Law Association (SLA).Kong is currently with PKR Sabah and was previously with the Liberal Democratic Party (LDP) and a Minister in the Sabah Government before moving to Gerakan after he lost a bid for the party leadership in LDP.Picture Credit: Daily Express"
"Autonomous MACC is needed KUCHING: The Special Committee on Corruption has expressed its disappointment that the recommendations it submitted to the Government three years ago — especially with regard to amendments to the Malaysian Anti-Corruption Commission Act 2009 (“MACC Act”) — have yet to be tabled in Parliament.The 2014 Report also proposed the formation of an independent panel to study investigation papers involving high-profile cases before they are submitted to the attorney-general for consideration for prosecution.The recommendations included proposals to amend provisions of the MACC Act, such as Section 23 which provides that it is an offence for any officer of a public body to use his office or position for any “gratification” and Section 36 which deals with the MACC’s power to obtain information as well as proposals for the establishment of a Malaysian Anti-Corruption Service Commission as a constitutional commission, and the appointment of the Chief Commissioner of the MACC to be under the Federal Constitution.According to Tricia Yeoh, Chief Executive of IDEAS said that: ""Since mid-2014 the Malaysian Bar has been working in collaboration with the Institute for Democracy and Economic Affairs (IDEAS), the Centre to Combat Corruption and Cronyism (C4), Citizens’ Network for a Better Malaysia (CNBM), and Transparency International Malaysia (TI-M), on proposals to reform the MACC to become an independent anti-corruption agency.""The reform proposals include:(1) the creation of a constitutionally mandated Independent Anti-Corruption Commission (IACC) that would be placed beyond the scope, control and influence of the executive government. The MACC is at the moment under the purview of the Prime Minister’s Department;(2) provisions for a Chief Commissioner and members of the IACC, who would enjoy security of tenure. Members of the commission would include civil society representatives; (3) amendments to the MACC Act, including amendments to Section 23 and Section 36;(4) amendments to related legislation such as the Official Secrets Act 1972, Whistleblower Protection Act 2010, and Witness Protection Act 2009; and(5) a proposal to separate the office of the Attorney General from the office of the Public Prosecutor, with the former to be solely the legal advisor to the government, and the latter to focus on prosecution of criminal matters and to be therefore accountable and answerable for the public interest in all prosecutions.Meanwhile, Steven Thiru, the president of the Malaysian Bar admitted that they will may not get all the proposals that they ask for.Steven was answering a question raised by a participant in the seminar on reforming the anti-graft watchdog in Kuching, Sarawak yesterday.He also add that a joint memorandum was submitted to the MACC on July 28, and to the Minister in the Prime Minister’s Department in charge of Governance and Integrity, Senator Paul Low Seng Kuan, on Nov 11.Photo Credit: MACC"
"Investors in gold scam demand refund after Court order Joseph Francisjoseph@asklegal.myEdward Chong, who acted as Spokesman for the 35 investors, said that they had instructed their lawyer Christina Liew Chin Jin Hadhikusumo to pursue the matter with the relevant authorities to get their monies back. GOLD SCAM Thirty five investors who invested over RM1.2 million in a gold investment scheme are demanding their money back after the High Court in Kota Kinabalu ordered the confiscation last Fri of nearly RM3 million from one Noor Ismahanum Mohd Ismail, 34, and Yong Thain Vun, 34, and Worldwide Far East Berhad. The monies deposited in a CIMB and Maybank account, ruled Judicial Commissioner Gabriel Gumis, were proceeds from unlawful activities, viz, illegal deposit-taking, under section 25 of the Banking and Financial Institutions Act (Bafia) 1989. Edward Chong, who acted as Spokesman for the 35 investors, said that they had instructed their lawyer Christina Liew Chin Jin Hadhikusumo to pursue the matter with their relevant authorities to get the monies back. The “investors” obtained a judgment against Ismahanum and Worldwide Far East Berhad on 7 Mar 2013 for the sum of RM1, 203,148.77 together with interest of 5 per cent per annum from the date of judgment to the date of full payment. They were also awarded costs of RM100,000.The 35 investors, accompanied by Liew, met with Bank Negara officials on 24 June, 2013 and gave them a copy of the judgment.The prosecution had applied to seize RM2, 111,256.20 from CIMB Bank, Seri Petaling Branch, Kuala Lumpur, and held in the name of Ismahanum, and RM815, 934, 49, and any addition to it, from a current account at Malayan Banking, Lintas Square Branch, Kota Kinabalu, and held jointly by Ismahanum and Yong. The application was made under section 56 of the Anti-Money Laundering Act (Amla) and Anti-Terrorism Financing Act 2001.Ismahanum was sentenced on Oct 30 last year to 120 years in prison for money laundering and taking deposits illegally while her company while her company was fined RM2.575 million. The accused, who pleaded guilty to 117 charges, will serve five years in jail as the sentences will run concurrently.Ismahanum, who was not represented, told the media that she plans to lodge an Appeal.Yong, the company manager, is still on trial.Picture Credit: Bank Negara"
"Online petition for Native Land Recently, Sarawak Dayak Iban Association Headquarters (SADIA HQ) has launched online petition to urge Sarawak State government to recognize 'Pemakai Menoa' and 'Pulau Galau' (Ancestral Boundary and Forest Reserve) of the indigenous people of Sarawak.A pemakai menoa (also spelt pemakai menua), is an Iban term that refers to ""a territorial domain of a long-house community where customary rights to land resource was created by pioneering ancestors.The campaigner target 500,000 petitioners to pressure the government to fulfill State obligation by respecting the laws which give community on their rights on the natives land.Online petition can be access through http://sadiahq.org/petition/petition.php. Last September, the Federal Court has reserved its decision on the appeal by the Sarawak government against a decision by Court of Appeal on June 21, 2013, that recognised ""pemakai menoa"" and ""pulau galau"" as native customary lands (NCL) under the Iban ""adat"", or custom, in Sarawak.Federal Court president Mohd Raus Shariff gave no date as to when the court would deliver the decision after hearing lengthy arguments by the state legal counsel Datuk J.C. Fong and prominent native land lawyer Baru Bian, who is representing Tuai Rumah Sandah Sabau of Rumah Sandah in Ulu Machan, Kanowit and eight other NCR landowners."
"Pre-nuptial agreements? You better think twice … Picture credit: nydailynews.comWatching Hollywood movies and reading all those gossip portals have exposed us to all those juicy stories about celebrity marriages and divorces. Here is a list of some top divorces: Michael and Juanita Jordan After a 17 year marriage, legendary basketball player Michael Jordan divorced his wife Juanita. The settlement, a cool USD168 million. Arnold Schwarzenegger and Maria Shriver Actor Arnold Schwarzenegger, fathered a child with a former maid and this brought an end to his marriage with Maria Shriver. Estimates of the cost to Arnold ranges from USD250 million to USD375 million. In California, the wife is entitled to half of the huband’s assets. Mel and Robyn Gibson Word has it that this was the biggest celebrity divorce settlement of all time. Robyn walked away with a sum of USD425 million. Now to some this may seem to be a lot but it’s nothing really compared to billionaire divorces. Read on … Rupert and Anna Murdoch Media mogul, Rupert Murdoch divorced after a 37 year marriage. Anna gained a sum of USD1.7 billion in the settlement. Dmitry Rybolovlev and Elena Rybolovelva Russian billionaire Dmitry Rybolovlev and his wife Elena Rybolovelva, both separated after 26 years of marriage. The settlement was reported to be a whopping USD4.8 billion. So after reading this, some of you out there may say, “I am going to get a pre-nuptial and ensure that my hard earned money won’t part with me.” Hmmmmm … you better think again. Pre-nuptials are an agreement that is entered into between the couple prior to marriage. Its main concern is with the distribution of assets in the event that the marriage fails. The law governing divorce in Malaysia is contained in the Law Reform (Marriage and Divorce) Act 1976 (hereafter ‘LRA 1976’). The division of matrimonial asset in a divorce is addressed by Section 76 of the LRA 1976. The section empowers the court to order the division of matrimonial assets. Section 56 of the LRA 1976 allows a party in divorce proceedings to refer the court to any agreement or arrangement made prior to the marriage to enable the court to express an opinion as to the reasonableness of the agreement or arrangement and to give such directions, if any, in the matter as it thinks fit. Hence, it is clear that with Section 56 of the LRA 1976, the courts may exercise its judicial discretion over a pre-nuptial agreement. So far in Malaysia there has yet to be a case in which pre-nuptial agreements have been brought before the court. So far, only post-nuptial ones such as a deed of separation and maintenance agreements. Nonetheless, it is doubtful that a pre-nuptial agreement will be able to supersede the powers of the court as provided for in Sections 76 and 56 of the LRA 1976. However, there might be a chance that in the event that the pre-nuptial is reasonable, the courts may give an order in accordance with the terms of the said agreement. But then again, it is the court exercising its discretion. It would be safe to say that the courts in Malaysia are slow to just accept the terms of a pre-nuptial in its entirety. The courts are here to dispense justice, and in the case of divorces, it will do its job. So in short, a pre-nuptial is no guarantee."
"Federal Court to hear Sipadan collectors on turtle eggs Joseph Francisjoseph@asklegal.myAn Applicant’s grandfather’s customary rights on Sipadan Island helped Putrajaya win the case at the ICJ where it was ruled that the island belongs to Malaysia.RIGHTS The Federal Court, sitting in the Sabah capital, has allowed the Application for Leave sought by two traditional turtle eggs collectors from Sipadan, Malaysia’s only oceanic island in the Sulawesi Sea along the south-eastern seaboard of Sabah. The Application was lodged eight years ago on seven questions of law on Native Customary Rights (NCR) and two questions on rights, their right to collect turtle eggs on the island which the International Court of Justice (ICJ) in The Hague awarded to Malaysia on 17 December 2002, along with Ligitan Island, over a competing claim by Indonesia.The three-man Panel comprising Judges Ahmad Maarop, Abu Samah Nordin and Aziah Ali unanimously ruled in favour of Abdillah Abdul Hamid and Ab Rauf Mahajud. Sabah Attorney General Roderick Fernandez had requested dismissal for the Application for Leave.Abdillah, represented by counsel Alex Decena, wants to know from the Federal Court whether NCR was extinguished by the Federal Government declaring an area a protected area and a protected place under the Protected Areas and Protected Places Act 1959 (Act 298). This is one of the seven questions.Another question was whether the Protected Areas and Protected Places Act 1959 (Act 298) had clear provisions expressing clear and plain intention to extinguish NCR and private rights on Sipadan Island. Abd Rauf, represented by counsel Mohd Nor Yusof, wants to know among others whether a Court of Appeal ruling was contrary to and/or repugnant to section 65 of the Sabah Land Ordinance (SLO) on the definition of customary tenure. Another question was whether the Applicant’s ancestral rights to exclusively collect turtle eggs on Sipadan Island was extinguished by virtue of section 15 of the SLO and/or upon enforcement of the Wildlife Conservation Enactment 1997 notwithstanding Article 13 of the Federal Constitution.The High Court, which heard the assessment of damages for two suits filed by Abdillah and Abd Rauf, had on 20 April 2011 awarded damages of RM4,376,008.75 to Abd Rauf in respect of the right to collect turtle eggs and RM5,524,711.04 to Abdillah in damages.Briefly, the case stems from the Sabah Government taking over Sipadan Island in 1997, and without consent, licensing 12 companies to run businesses there and thereby the two Applicants and their families were prohibited from collecting turtle eggs on the island and disallowed from running any tourism business. Earlier, by an Agreement on 4 November 1993, Borneo Divers and Sea Sports Sdn Bhd, and Pulau Sipadan Resort agreed to pay Abd Rauf RM50,000 annually to cease collecting eggs and thereby allow them to be laid on the island for natural hatching as tourism assets. In November 1998, the Syariah Court in Tawau granted Abd Rauf an Order to inherit the right to collect turtle eggs on Sipadan for 40 nights a year.In a Supporting Affidavit, Abd Rauf said that the Federal Government had recognized his grandfather’s right to collect turtle eggs on Sipadan Island. The government had also sought his grandfather’s co-operation to challenge Indonesia’s claim to the island at the ICJ in The Hague. He added that his grandfather’s customary rights on the island helped Putrajaya win the case at the ICJ where it was ruled that the island belongs to Malaysia. However, he lamented, the Sabah Government denied his family’s ownership of the island under customary tenure.In his Supporting Affidavit, Abd Rauf said that he was the heir to Maharaja Ligaddung Samang who had the rights to collect turtle eggs on Sipadan Island. This right was recognized by the British Government via letters dated 25 January 1916 and 5 July 1957.Picture Credit: cuti-cutimalaysia.net"
"Court slams shut Sabah doors for peninsular lawyers Joseph Francis joseph@asklegal.my Peninsular lawyers doing arbitration work in Sabah may open the floodgates and lead to them doing other work, all in contravention of the Malaysia Agreement 1963 (MA63). MA63 A five-man Federal Court panel, in an unanimous and landmark decision, has set aside a Court of Appeal ruling and reinstated the High Court decision that Peninsular Malaysian lawyers are not allowed to take part even in arbitration proceedings in Sabah. The panel led by Justice Raus Sharif and including Justices Ahmad bib Haji Maarop, Hasan bin Lah, Abu Samah bin Nordin and Aziah binte Ali noted that Sabah lawyers have pointed out that if their counterparts in the peninsula were allowed to take part in arbitration proceedings in Sabah and cases originating from Sabah, it may open the floodgates and lead to them doing other work, all in contravention of the Malaysia Agreement 1963 (MA63). Earlier, in the High Court in Kota Kinabalu, the Judge made reference to paragraph 148(g) of the Cobbold Commission Report, basically a summary of the position of the Malaysia Solidarity Consultative Committee (MSCC). The MSCC, in its Memorandum on Malaysia, noted in paragraph 24 that “it’s a matter of great apprehension to the delegations from the Borneo territories that there might be free movements from Singapore and the peninsula into the Borneo territories . . . the Borneo territories are anxious to protect their lands, trade and employment from being taken up by people from other parts of Malaysia. The High Court Judge went on to state: “As we all know, the Commission’s recommendation is embodied in Article 161E (4) of the Federal Constitution where in effect gave power of control of movements of non-residents into Sabah and Sarawak to the respective state governments through s.65(1) of the Immigration Act.” Senior Sabah lawyer and Api Api Assemblywoman Christina Liew Chin Jin Hadhikusumo and her associates submitted that the statutory provision in the Advocates Ordinance operates in harmony with the constitutional safeguard under the Federal Constitution. The correct interpretation of section 8(1) of the Advocates Ordinance is one that harmonizes the object of the Ordinance and the object of the constitutional safeguard accorded to advocates in Sabah. They submitted that foreign lawyers who are not advocates within the meaning of the Advocates Ordinance 1953 (Sabah Cap.2) are prohibited by the same Ordinance from representing parties in arbitration in Sabah.The case arose from Liew acting for more than 800 smallholders in a joint-venture agreement with the state-owned Borneo Samudera Sdn Bhd. which engaged a Peninsular Malaysian lawyer for arbitral proceedings. The Court of Appeal disagreed with the High Court. The CoA, agreeing with the other side, held that the exclusive right to practise for advocates in Sabah was tied up to the exclusive right of practice of barristers and solicitors in England as stipulated in section 2(1) of the Advocates Ordinance 1953 (Sabah Cap.2). Since barristers and solicitors in England have no exclusive right to represent parties in proceedings in England, it also meant that advocates in Sabah also have no exclusive right to represent parties in arbitral proceedings in Sabah. The Federal Court, which overturned the CoA’s ruling, will submit its written judgment later. Both former Sabah Law Association (SLA) heads – John Sikayun and G.B.B. Nandy @ Gaanesh – were present in Court. Sikayun filed SLA’s submission. Nandy assisted former Sabah Attorney General Stephen Foo."
"8 Things You Need To Know About Hire Purchase Picture credit: carmudi.aeAnyone who owns a car will have come across hire purchase or financing for ownership. But as we put our signature to the agreement, do we really know what we are signing? Do we know our rights under hire purchase laws.In Malaysia, hire purchase is governed by the Hire Purchase Act 1967 (“HP Act”).Well, here are some things that everyone should know: No.1 – You do not own the car until you have made the final payment In a hire purchase arrangement, you pay the deposit and then the balance by way of monthly installments. You are actually hiring the car until the final payment is made. Only then, will you obtain legal ownership. No 2 – The dealer of the car cannot stand as guarantor Under Section 2 of the HP Act, the term “contract of guarantee”, does not include the dealer or a person engaged at the time of giving of the guarantee in the trade or business of selling goods of the same nature In short, the car dealer cannot stand as guarantor. So, car dealers out there who are guarantors, it’s your lucky day! No. 3 – Repossession by the bank The bank can only repossess if you fail to make 2 successive payments. Before repossession they are bound to: Issue a notice to you, under the Fourth Schedule of the HP Act, giving you 21 days to settle the outstanding, failing which the vehicle will be repossessed A reminder must be sent to you before the actual repossession. If you have paid for 75% of the car installments, the bank may only repossess with a court order. No. 4 – You cannot sell your car without first settling the hire purchase arrangement It is a breach of the hire purchase agreement if you were to sell the vehicle without settling the hiring. When selling the vehicle, always ensure that you verify with the bank that all amount due under the hiring has been settled by the purchaser and a document confirming it is handed to you. It’s always best to take a day off, go to the bank and collect the said document. No. 5 – ‘Sambung bayar’ arrangements Sambung bayar arrangements are a big NO NO! As the seller, if the new ‘purchaser’ does not service the installments, you are still liable. As the ‘purchaser’, you have no recourse against the bank in the event that there are issues with the vehicle. The bank did not contract with you. No. 6 – Never sign blank agreements Section 4B of the HP Act prohibits the signing of blank agreements or documents. It is also an offence under the HP Act. No. 7 – You may sue the bank if the vehicle is not of merchantable quality Yup, under the HP Act, namely, Section 7 (2), the owner (the bank) has to ensure that the vehicle is of merchantable quality. This is an implied term. However, it does not apply if: You have examined the vehicle Vehicle is second-hand (and stated as such in the agreement) and the warranty pertaining to quality etc are expressly waived So guys … if you are purchasing a new vehicle, DO NOT check the vehicle before you sign the hire purchase agreement. No. 8 – Booking fee No booking fee may be collected unless a form under the Second Schedule (summary of financial obligation) is duly completed and handed to the buyer. Failing to do so is an offence under the HP Act.Okay … so there you have it. Now, know your rights and be careful out there."
"Ban on vape, countries rights to protect its people Countries around the world are still grappling with what to do about e-cigarettes. Most are content with regulation – usually disproportionate to the likely risks of vaping – but some take things a lot further, even going so far as to completely ban the sale or even the use of e-cigs.But, our old post in http://asklegal.my/p/vape-actually-legal, show that vape in Malaysia actually legal as the country has its legal provisions for smoking tobacco indoors under the Food Act 1983 but vaping does not involve the use of tobacco at all.In this article, we will see the list of countries where vaping was banned. Rules and regulations surrounding vaping are still evolving, and in many cases the situation is very nuanced: with either bans on sale but not possession or outright bans that are flatly ignored. Additionally, there are many countries around the world with e-cigarette policies, but these aren’t always made explicitly clear.The countries completely banned is Argentina, Brunei, Canada, Cambodia Mexico, Israel, Brazil, Hong Kong, Panama, Singapore, Indonesia (Proposed), Jordan, Oman, Taiwan, Thailand, Uruguay, Venezuela and the United Arab Emirates. They are also regulated heavily as medical products in Denmark, where they are technically illegal but none have been licensed so far. Some places, such as Finland and Australia, have rules where they can technically be sold, but cannot contain nicotine. For vapers outside of these countries, knowing about the rules will help you avoid problems when you’re going on vacation, but for smokers in these countries, we can only hope their governments realize just how backwards it is to ban a safer alternative while leaving the more dangerous version on sale.Futhermore, the poor reasons cited for banning of e-cigarettes are particularly harmful because they essentially leave tobacco as the only option. Realistically, the legislation could be seen as over-protective, but unless it’s accompanied by a ban on tobacco this argument crumbles into nothingness. Countries should support their citizens’ freedom to choose, and by no means ban something with the potential to save so many lives."
"Mahathir as Malay as any Malay under Federal Constitution NEWS ANALYSIS Jamal Md Yunus, the leader of the Red Shirts, would like to welcome former Prime Minister Mahathir Mohamad, ""if he thinks he's Malay"", to his rally which will take to the streets in Kuala Lumpur on Sept 16 or 916, Malaysia Day.""If he thinks he's Malay,"" is obviously Jamal's snide reference to the fact that Mahathir's family does not originate from one of the islands in the Archipelago but from Kerala, southwest India. That's on his father's side. Some reports suggest that his mother's side was from Kerala too while others say his mother was from Kedah. In any case, we know almost nothing about his mother.Patently, Mahathir is a Malayalee Muslim, also known as Kaka, distinct from the mamak or Patani who are Tamil Muslims. The Patani are descendants of Pathan men and Tamil women and speak both Tamil and Urdu, the official language of Pakistan and spoken by Muslims in India.Mahathir is as Malay as any Malay under the Federal Constitution. Article 160 defines Malay as not an ethnic group but as a people, a nation without state or territory. The fact that Mahathir is a Malayalee doesn't make him any less Malay in the peninsula.It was the British who first codified the term Malay to refer to the Bugis, Javanese, Minang, Aceh and other Muslims in the peninsula who habitually spoke in Malay to communicate with each other. In short, there's a Malay language but not an ethnic group under that term.The origin of the Malay language, as records go, begins in Cambodia as a dialect. Hindus and Buddhists from India turned it into the lingua franca for the Archipelago, hence the term Malay Archipelago. The Hindus infused Sanskrit words, while the Buddhists did the same with Pali words. Pali is a Sanskrit dialect in which the Buddhists wrote their scriptures.The Malay population in the peninsula must be kept in perspective. As Hindraf Makkal Sakthi Chairman P. Waytha Moorthy wrote in a Memorandum to the Agong in conjunction with Merdeka Day this year, 70 per cent of the Malay-speaking population in the peninsula in 1957 was Indonesian. He was lamenting the fact that these Indonesians all went on to become citizens while 300,000 displaced estate workers, descendants of Indian migrants from some 200 years ago, all remain stateless.Another perspective comes from Professor William Roff who wrote The Origin of Malay Nationalism (Universiti Malaya, Australian National University ). Roff explains in his book that as late as the 1880s, 85 per cent of the Muslim population in the peninsula was immigrant.Roff was among the first scholars who wrote that the concept of Malay Nationalism was created in Singapore by Malayalee Muslims from Kerala, southwest India . These Malayalees set up the first Malay printing press and newspaper and later Utusan Melayu. Yusuf Ishak, a Malayalee and the first President of Singapore, came from this group.All nationalism are defined by what they oppose. Malay Nationalism was to oppose Chinese economic domination of Malaya and Singapore .By this time, the British had also helped lay the foundation for Malay Nationalism. They fought two wars with Bangkok to hack away the southern half of the Kra Peninsula from the Siamese Kingdom. They wanted to plant rubber and mine the tin.Since the Malay squatters were in the way, the British created reservations for them by gazette on Orang Asli land. These reservations which have no title and can be degazetted came to be known as Malay reservations or tanah Melayu. tanah Melayu became Tanah Melayu, for the peninsula or Malaya , and came to be known as Persekutuan Tanah Melayu.The British also stopped the toll collection along the waterways by the sultans, gave them an annual pursue in lieu by way of compensation, and drew borders for them, converting riverine kingdoms or kerajaan sungei to territorial states in the western sense and created the Conference of Rulers.The concept of Malay Nationalism had far-reaching implications and led to the opposition to the Malayan Union where the sultans would be reduced in status and the Malays would be in the same category as Indians, Chinese and others; the 13 May 1969 riots, the formulation of the New Economic Policy and the advent of a totally Malay Government under Mahathir.Tunku Abdul Rahman, aware that the Malays were not Orang Asal, coined the term Bumiputera as an umbrella term to include them in the same category as the Orang Asal of the peninsula (Orang Asli), Sabah and Sarawak."
"Empowered to sue on behalf of a deceased The Federal Court dismissed private investigator P Balasubramaniam's widow A Santamil Selvi's appeal. The appeal was to reinstate her RM1.9 million suit against Prime Minister Najib Abdul Razak, his wife Rosmah Mansor and five others. The suit was filed on behalf of P Balasubramaniam (deceased).Many have commented on the independent media portals about the Federal Court's decision. Here are some interesting comments: ""Santhamil, the wife of the late Bala, is his next of kin. How can she get the letter of administration to manage his estate? He is already dead, isn't he? Can the federal court show and explain to the greater Rakyat how she can proceed to claim her rights in this episode? If not her, who can proceed to do it? This judgment will set precedent to other likely cases. Please explain, Judge Hasnah"" ""What is the joke; wife is next of kin; what letter required?"" ""Such a lame excuse to dismiss the appeal. This is on technicalities. So it appears there is no justice in Malaysia"" ""Stupid as it is. If a deceased do not have property to be transferred, would his wife get a letters of administration? By virtue she is Bala's wife, it will suffice to have locus standi as next of kin. The legal world will laugh at this judgment."" It would seem that injustice has been done to the plaintiffs BUT what is the law regarding suing on behalf of a deceased?When a person dies, after the funeral matters have been concluded, the family needs to administer the estate of the deceased.Firstly, it must be asked whether the deceased passed away with a will or without a will. If one passes away intestate (without a will) then the law is as stated in the case of Ingall v Moran [1944] 1 KB 160:An administrator is, of course, in a different position, for his title to sue depends solely on the grant of administration. It is true that, when a grant of administration is made, the intestate’s estate, including all choses in action, vests in the person to whom the grant is made, and the title thereto then relates back to the date of the intestate’s death, but there is no doubt that both at common law and in equity, in order to maintain an action the plaintiff must have a cause of action vested in him at the date of the issue of the writ. - Luxmoore LJIn the case of Chor Phaik Har v Farlim Properties Sdn Bhd the Federal Court held that:“ ... in law a beneficiary under an intestacy has no interest or property in the personal estate of a deceased person until the administration of the latter’s estate is complete and distribution made according to the law of distribution of the intestate estate ...”It has since been followed by the Court of Appeal in Manian Kandasamy v PTD Raub & Anor [2011] 7 CLJ 58In short, the plaintiff must have obtained letters of administration at the point in time when the action was commenced. The letters of administration cloaks the plaintiff with authority to act on behalf of the deceased. Without that, the plaintiff has no locus standi to sustain a suit on behalf of the deceased.So is there any miscarriage of justice? Frankly, no. The merits of the suit has not been heard. The issue of res judicata (the principle that a matter may not, generally, be re-litigated once it has been judged on the merits) may not arise. The plaintiffs can file another suit once they have obtained letters of administration. But then again, UK courts have held that if a case was dismissed due to lack of diligence, it would be an abuse of the court process to file the same claim again.Well, Mr Bumble ... the law is not such an ass but perhaps the lawyer might have been."
"Sabahan sues bank for appointing peninsular lawyers Joseph Francis joseph@asklegal.my Senior Sabah lawyer Marcel Jude Joseph, 54, initiated the suit after he received two letters of demand from Messrs Azhar & Wong in connection with a housing loan facility for RM132,000. SUIT Senior Sabah lawyer Marcel Jude Joseph, 54, (right) has filed a suit against Hong Leong Bank Berhad, where he has an account, for appointing three peninsula-based lawyers to handle its case against him. Marcel claims that the bank did not get the blessing of the High Court of Sabah and Sarawak before appointing the three lawyers. The senior lawyer named Hong Leong Bank as the first defendant and the three lawyers – Ivan Wong Ee Vern, Robin Lim Dou Shing and Fariza Sanusi – as the second defendants. The three lawyers are with Messrs Azhar & Wong, Advocates & Solicitors, Kuala Lumpur. Marcel initiated the suit after he received two letters of demand from Messrs Azhar & Wong requesting payment of arrears of installment of RM4,049.00, compensation charges of RM272.86 and legal cost of RM37.10 (inclusive GST) in connection with a housing loan facility for RM132,000. “What business has a legal firm and lawyers who have no right to practise in the State of Sabah to issue a letter to me?” he asked. “This clearly contravenes the provision of the Advocates Ordinance of Sabah.” He argued that the bank/legal firm have not provided him with any service and yet was trying to claim GST from him. “This is tantamount to fraud.” “Am I the only one or are there others like me asked to pay up GST?” He disclosed that he had extended copies of the letters from the legal firm to the Inquiry Committee of the Sabah Law Association (SLA), the Deputy Registrar of the High Court of Sabah and Sarawak in Kota Kinabalu and the Chief Justice of Sabah and Sarawak based in Kuching, “for their verification and investigation”. In his statement of claim, the Sabahan is seeking exemplary damages from the bank and the three peninsular lawyers. Marcel claims that the bank’s contention that his loan was in arrears was false and untrue. “This has caused me much distress and mental trauma.” He further claims that the letter of demand to him was unlawful and in breach of the term loan facility between him and the first defendant. He wants an injunction retraining the first and second defendants on the letter of demand and further claims damages to be assessed, statutory interest, costs and any other relief deemed fit by the Court.(Picture Credit: Borneo Post)"
"Trade unionists, activists 'confused' on TPPA Joseph Francisjoseph@asklegal.myTrade unionists and anti TPPA activists are wondering whether to support the TPPA, in view of Chapter 19, Labour Chapter and the agreed side letters on US-Malaysia Labour Consistency Plan within the agreement. UPDATE The Ministry of Human Resources, said the Parti Sosialis Malaysia (PSM) in a statement, has not done thorough analysis on which industrial sectors, under the Trans Pacific Partnership Agreement (TPPA) will see a net increase in employment and which areas will suffer due to direct competition. “In terms of benefiting from the Labour Chapter of the TPPA, you will first need to have a job. What's the use if the TPPA has caused you to be laid off?”PSM added that it would caution all those in favour of the TPPA Labour Chapter not to lose sight of the bigger picture i.e. the TPPA promoting the corporate agenda and enhancing investor rights in the region. “In the long run, it will be the common working people that will stand to lose if Malaysia signs the agreement. At the end of the day, we have to analyze the net benefit of the agreement in total although we stand to benefit from the Labour Chapter.” The enhancement of workers’ rights via the Labour Chapter notwithstanding, warned PSM Secretary General A. Sivarajan, workers will lose their rights to decent affordable healthcare (due to delayed entry of generics and high prices of medicine being maintained), increased cost of education (with stronger Intellectual property rights) and many other indirect implications via other chapters. “The crux of the TPPA is tariff elimination and liberalization of trade. How will local SMEs be affected by the elimination of tariffs on imported products, in direct competition with our local products?” “So now the question was whether we support the government’s decision to sign the TPPA or not? If Malaysia had the option to pick and choose to sign the Labour Chapter only, I believe that most workers and unions would welcome it. “But unfortunately, conceded Sivarajan, that was not the case. “The TPPA consist of 30 chapters ranging from, National treatment, Market accesses, Rules of Origin, Textile and Apparel, and Investment, to Intellectual Property and many more.”“The Labour Chapter is the sugar coating on the bitter medicine that we are about to swallow. Various analysis and articles by local and international experts have researched and proven the negative implications of the TPPA.” Sivarajan was commenting on the ""much confusion"" among trade unionists and anti TPPA activists on whether to support the TPPA, in view of Chapter 19, Labour Chapter and the agreed side letters on US-Malaysia Labour Consistency Plan within the agreement. For trade unionists, he added, most of the provisions in the Labour Chapter and especially the side letter between Minister Mustapha Mohamed and US Trade Representative Michael Froman, should be welcomed with open arms, as finally the Malaysian government would be “forced"" to comply with many of the demands that unions and civil society organizations had been fighting for all these years. “We cannot deny that the US has just 'made an offer we cannot refuse' to Malaysian workers through the TPPA, as it would greatly uplift them and migrant workers’ rights, which have been trampled upon all these years,” said Sivarajan.The bright spots in the TPPA: the laws would ensure full implementation and enforceability of the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted by the International Labour Conference at its 86th Session, Geneva, 18 June 1998 (Annex revised 15 June 2010); trade unions have the right for judicial review against administrative decisions regarding trade union registration, suspension, cancellation and determinations of strike illegality; the discretionary powers of the Director General of Trade Union on issues of union registration would be removed; no limitation on forming unions in the same trade sector; on outsourcing and employment agencies, better regulations to ensure worker rights; employers cannot hold the passports of foreign workers; levy would be the responsibility of the employer and should not be charged to the worker; and special passes would be issued by the Labour Department for workers involved in industrial disputes, thus enabling them to remain in the country and seek alternative employment till their case is settled.In terms of enforceability, noted Sivarajan, Malaysia was required to enact all legal and institutional reforms prior to the date of entry to enforce the TPPA. “It’s rather ironic that the Malaysian Government’s political will to enhance our domestic labour rights has to 'whipped' by the US through a trade agreement. ““The Malaysian Government has played deaf to various petitions, protests, and complaints demanding the same above stated rights for decades by workers, political parties and unions.” Malaysia has ratified a total of 17 ILO Conventions involving Forced Labour. Right to Organize and Collective Bargaining, and Equal Remuneration Convention among others, continued Sivarajan. “All of these were ratified and enforced even before TPPA.” “So, what was stopping us from amending our labour laws, enhancing and enforcing them effectively further?”The President of the SME Business Associations Michael Kang Hua Kuong, was quoted in The Star SME Biz on November 23 as saying that nearly 30 per cent of the registered 650,000 SME in Malaysia will be out of business in two years’ time if the TPPA is signed. As 80 per cent of the workforce was employed in SMEs, this means that there might an increase in unemployment. However, there may be increase in employment with increased trade and exports but experience in Africa, Latin America and Korea have shown otherwise. Picture Credit: alochonaa.com"
"Constitution states English remains Sarawak’s official language Joseph Francisjoseph@asklegal.myThe Acts of Parliament are not automatically extended in every case to Sabah and Sarawak as the State Assemblies in the two Borneo nations must also give their consent. ANALYSIS English has always been the official language of Sarawak as provided for under Article 161(1) and (2) of the Federal Constitution and Article 2(c ) of the Malaysia Agreement 1963 (MA63). The MPs from both Sabah and Sarawak also have the right to speak in English in Parliament.The Acts of Parliament are not automatically extended in every case to Sabah and Sarawak as the State Assemblies in the two Borneo nations must also give their consent. Again, if the Constitution states that English is the official language of Sarawak, it’s also because the National Language Act has not been extended to the state. This is surprising, or not surprising, considering that Abdul Rahman Ya’kub, later Sarawak Chief Minister and Governor, was at one time the Federal Education Minister. Abdul Rahman, now late, was the maternal uncle of current Sarawak Governor Taib Mahmud who was previously Chief Minister for 33 years, having succeeded the former who headed the state government for ten years.Bahasa Malaysia, despite Sarawak's return to the English language under its Constitution, will continue to remain an important language for the state to communicate with its neighbours. However, Bahasa Malaysia will be unable to shed its ""ethnic"" tag, indeed even stigma of sorts, as long as Article 160 (Interpretation) on the definition of Malay remains in the Constitution. The Definition does not refer to ethnicity but a group of Muslims in the peninsula who use the Malay language to communicate with each other, if not with others.The British made a serious error of judgment when they codified the term Malay to cover Muslims from various parts of Indonesia, India, China, Arabia, and the West, in the peninsula, who used Malay to communicate with each other and others. That has helped usher in a collective amnesia of sorts on the past in a bid to carve out Malay nationalism as a way forward. If the people truly love Bahasa Malaysia, they would habitually use the language at home along with their mother tongue and English. At present, this happens among non-Malays only in Sabah, albeit a la Bahasa Sabah. That's a different story. This is somewhat like Filipino reigning in the Philippines and Bahasa Indonesia in Indonesia.In Sarawak, they have Bahasa Melayu a la Bahasa Sarawak or Sarawak Malay, also known as Bahasa Orang Laut, which doesn't come across as Bahasa Melayu at all unlike Bahasa Sabah. Even so, not all Sarawakians know Bahasa Sarawak. This is particularly true deep in Orang Asal country.Bahasa Malaysia, at the very pinnacle is actually English, something many people aren't aware because they are only familiar with the latter language in its original form, they are not proficient, and certainly are no masters.In any case, Sarawak needs to focus on one language for the way forward. Still, at present, it's neither here nor there in any language. Bahasa Malaysia is virtually a dead end for Sarawak. In going forward, it’s no longer about this or that language but a matter of choices. It’s also important to make the right choice.It's possible to be familiar in more than one language. However, it's not possible to be proficient in more than one language. It's impossible to master more than one language. English opens the door to a world which many people don't know exists. Only those who have mastered the English language, or at least attained a certain level of proficiency in it, can comprehend this. Those who are merely familiar with the English language won't be able to envision, in a million years, what kind of world waits out there for anyone who's comfortable in the language.This is where Sarawak Chief Minister Adenan Satem (see pix), like a latter day Prophet, is leading his people. He has a vision of the future which has given the people renewed hope after struggling with the Malay language in schools for over half a century and getting nowhere in the process. However, Sarawak (Sabah too) has yet to regain autonomy in education, among others, in its quest for the return of Full Autonomy.For starters, the Sarawak Government will respond to letters in English in that language and no longer in Bahasa Malaysia. English will return to the Sarawak Assembly too, a status which it has maintained in the High Court of Borneo and at the Court of Appeal and the Federal Court for cases originating from Sabah and Sarawak. English has long returned to public universities throughout the country.Adenan wants his people to enter the Promised Language of the English language. Bahasa Malaysia has a choice i.e. whether to come along or be left behind. After all, it's becoming more English by the day, the Malay ethnic tag notwithstanding.Picture Credit: the Star"
"Vape actually legal! Vape is everywhere! Suddenly clouds of smoke with flavors are sold like 'goreng pisang'. It is now becoming a popular trend and has left conventional cigarettes behind.Recently, the Malaysian government decided not to ban e-cigarettes and vaporisers themselves but, under the Poisons Act in Malaysia, the sale of nicotine liquid which goes inside them. The Act uses the term 'substance', prohibiting any such poison from being sold or supplied to any person under 18 years of age, other than for the purposes of the medical treatment of such person. Therefore, this can cover the liquid but not the device itself.When it comes to vapes, the heater vaporizes liquid nicotine in a small cartridge but users can opt for a cartridge without nicotine. Therefore, for any person under 18, vape is actually legal as long it has no nicotine inside!Apart from that, while Malaysia has its legal provisions for smoking tobacco indoors under the Food Act 1983, vaping does not involve the use of tobacco at all. The Food Act 1983 – defines “tobacco product” as “tobacco, cigarette or cigar or any other form of tobacco including any mixture containing tobacco which is designed for human consumption...” and “tobacco” as any product obtained from the leaf of the Nicotiana Tobacum plant or other related plants and includes any tobacco product. So, it is actually legal for a person to vape indoors. In addition, as the Control of Tobacco Product (Amendment) Regulations 2013 just provides regulations such as the ban on advertisement, prohibition of sales to minors, as well as prohibition of consumption at certain areas, we could see adverts for vape on TV. After all, the Act only permits the health ministry to set regulations on the use of tobacco products which includes its advertisement, packaging and but not vaping.So, all the debate about vaping, whether it is illegal or not, comes down to this one thing. If you're above 18, you can vape any time and anywhere you like. Nicotine included.(Point of consideration - establishments that have a self-implemented policy. We'll touch on this in our next piece.)"
"Kota Kinabalu MP clarifies Native status ‘intact’ Joseph Francis joseph@asklegal.my Wong clarified that he was still in possession of his Native Certificate despite the announcement in the Sabah Assembly. NEWS UPDATE Kota Kinabalu MP Jimmy Wong has issued a public warning that he will sue anyone who keeps harping on his Native Certificate (Sijil Anak Negeri) in the media and the social media. The certificate was reportedly revoked by the Sabah Government on 26 September 2012, according to a statement then issued by Local Government and Housing Minister Hajiji Mohd Noor in the Sabah Assembly. Wong clarified that he was still in possession of his Native Certificate despite the announcement in the Sabah Assembly by Hajiji. “No matter what anyone says, it’s authentic and issued by the Native Court,” said Wong. “I am Native. If the Sabah Government wants to revoke my Native status, the Native Court would have to inform me in writing. I have yet to hear from it.” He disclosed that his lawyer, Amin Jaafar, had in fact submitted his certificate to the Native Court on 9 April 2013 for verification. “I have yet to hear from it.” He advised those who have been requested to surrender their Native Certificates to do so through a lawyer. “Many holders of the SAN had expressed worries that they might be stripped of their Native status bestowed by the Native Court after screening.” A Special Board appointed by the Governor under a gazette in 2010 subsequently ruled that Wong does not fulfill section 2(1) Interpretation (Definition of Native) Ordinance. The decision was then referred to the Kota Kinabalu Native Court, gazetted in December 2011, for Wong’s Native Certificate to be cancelled. The Federal Government has in recent days advised the Sabah Government that in future there will be three categories in official forms to replace the previous lain-lain (others) category in the state viz. Sabah Native: Bumiputera Sabah; and non-Bumiputera Sabah. Putrajaya has asked for a list from the Sabah Government on which ethnic groups would be listed in the three categories. The state government has pleaded for more time. Lawyers in the know have pointed out that Native is synonymous with Aborigine, Orang Asal, indigenous and Bumiputera. They were expressing concern that there would be another category, Bumiputera Sabah, separate from the Sabah Native category. Three other non-Bumiputera Sabah categories in official forms in the state are Indian, Chinese and Malay. The Federal Constitution, under Article 161A 6(b), defines a Sabah Native as a person who is a citizen, is the child or grandchild of a race indigenous to Sabah, and was born (whether on or after Malaysia Day or not) either in Sabah or to a father domiciled in Sabah at the time of the birth. The colonial Interpretation (Definition of Native) Ordinance provides a wider coverage subject to the Immigration Act 1959/63 (Act 155). http://www.lawnet.sabah.gov.my/Lawnet/SabahLaws/StateLaws/Interpretation(DefinitionOfNative)Ordinance.pdfPicture Credit: roketkini.com"
"Courts can’t lightly interfere with ‘freedom to contract’ Joseph Francis joseph@asklegal.my In Malaysia, the law of contract has its ancestry in England, where it evolved through the Courts but the legislature also contributed. CONTRACT The American Restatement of the Law of Contracts, senior lawyer Bhag Singh reminded the local media in Kota Kinabalu at the weekend, is spelt out in the following words: “A contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognises as a duty.” Contract, given the above encapsulation, is a branch of law which determines the circumstances in which the promise is held to be legally binding. In Malaysia, the law of contract has its ancestry in England, where it evolved through the Courts but the legislature also contributed. Examples of statutory intervention in Malaysia include the Employment Act 1950 which applies to the peninsula, the Sabah Labour Ordinance 1950 and the Sarawak Labour Ordinance 1952. “All of them take away the power to contract to provide for minimum standards to be observed,” pointed out Bhag. Then, there are contracts of adhesion, especially with large corporations and entities which provide water, electricity, travel or other essential services. Thirdly, there’s a scenario of standard form contract where the individual or party has the choice to enter into the contract. “If he or she does so, they must usually accept the terms imposed by the stronger party,” stressed Bhag. Nevertheless, freedom of contract remains one of two dominant ideologies, he added. “Parties should be free as possible to make agreements on their own terms. But today the ‘will theory’ has been largely discredited.” He does not dwell on the “will theory”. Bhag refers to Jessel M. R. in Printing and Numerical Registering Co v Sampson on the role of the Court in upholding a bargain as relevant. “It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void, as being against public policy, because if there’s one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by the courts of justice. Therefore, you have the paramount public policy to consider – that you are not lightly to interfere with this freedom to contract.”"
"‘Blacklisting’ by Bank Negara not the end of the world Joseph Francis joseph@asklegal.my Bankruptcy action separate from entries in the Central Credit Reference Information System (CCRIS). ANALYSIS The National Higher Education Fund (PTPTN), at the last count, was in the process of listing 173, 985 borrowers in the Central Credit Reference Information System (CCRIS). This is not a blacklisting system but only used to determine one’s credit history, according to industry sources. However, the CCRIS System at Bank Negara is sometimes known as a “Blacklisting System” and with reasons too. It would be easier to obtain new loans with a good CCRIS report. The key to continuing to secure new loans, if one is not already bankrupt, is not through having no entries in your CCRIS report but keeping the entries good. Briefly, the items in an individual’s CCRIS Report would include details on bank loans, credit cards; recent credit/loan applications; borrowings and outstanding amounts; credit limit but usually for credit cards; repayment schedules; and missed payments in the last six months. Basically, you must pay your dues. There’s no way out of it. If you don’t pay your loans in full on schedule; pay consistently late or missed some payments, then the CCRIS Report wouldn’t be favourable. To get back in favour in the CCRIS, dues must be paid and usually through rescheduling loans. If dues are settled, the Bank will issue a Letter of Discharge for Bank Negara to update an individual’s CCRIS Report. Bank Negara keeps track for 12 months for any given period of time. So, to get out of a spotty situation, dues must be paid on time for 12 months. Issuing a standing instructions to the bank helps. Bank Negara has AKPK, a Unit, to help those with money problems to better manage their finances. If all else fails, one has to face bankruptcy action. Here, it’s a different process altogether. The bottomline is that one must pay one’s due. Even in bankruptcy court, payment is involved. See here: http://www.agc.gov.my/Akta/Vol.%208/Act%20360.pdf"
"Zaid: Judges can't bury heads in the sand Joe Fernandez They must step into the arena and give some space for people who want leaders to be ?reasonable? with them. KUALA LUMPUR: Former de facto Law Minister Zaid Ibrahim said that he was not expecting the country?s constitutional judges to match the courage of Lord Coke and Holt CJ who initiated judicial reviews that resulted in freeing slaves at a time when the royalty was still chopping heads off every Sunday. ?I am also not suggesting that our apex judges emulate the contrarian and dissenting greats of the US Supreme Court such as Justices Louis D. Brandeis and William J. Brennan,? added Zaid. ?I am only asking them for a small concession: that they get involved as fair and just arbiters in the contest between the powerful and the powerless.? They must never claim to be powerless or say that the powerful know best, cautioned the former de facto Law Minister. ?They must step into the arena and give some space for people who want leaders to be 'reasonable' with them.? ?Is that too much to ask?? There?s a Malay proverb that says ?Hendak seribu daya, tidak hendak seribu dalih?, he reminded. ?Simply translated: where there?s a will, there?s a way.? ?There are always ways for us to justify something we want to do just as there are ways for us to justify not doing something. That was my reaction when, in the space of ten days, I heard the Federal Court make two decisions.? The first, he said, involved ZI Publications and the other concerned law lecturer Azmi Sharom?s case, but in both instances the top two judges, Arifin Zakaria and Md Raus Sharif, could have decided to defend fundamental liberties without difficulty. Instead, he lamented, they gave the ruling government the power to decide the extent of the liberties the people can have, if any. ?In my view, they made the wrong choice. They sided with the politicians in power when they could have ? should have ? given the powerless some room to breathe.? The two cases, said Zaid, confirmed his suspicions that constitutional jurists in the country have imposed upon themselves a limited grasp of legal jurisprudence. ?They seem comforted by just three concepts: that freedom has limits, that the extent of restrictions on fundamental liberties are not within their purview, and that fundamental liberties are not ?high principles? in our Constitution that they ? our top constitutional court judges ? are duty-bound to defend.? Read Further Here: http://www.freemalaysiatoday.com/category/nation/2015/10/12/zaid-judges-cant-bury-heads-in-the-sand/"
"Sabah Gov’t to ‘define’ terms Putrajaya created Joseph Francis joseph@asklegal.my The Sabah Government must not be burdened with the task of defining terms that Putrajaya created to replace the lain-lain category on official forms in the state. COMMENT The Federal Government, after announcing that the lain-lain (others) category would be done away with in official forms in Borneo, has since placed the onus on the Sabah Government to define the Anak Negeri Sabah (Sabah Native) and Bumiputera Sabah terms for gazetting purposes. These two categories along with Bukan-Bumiputera (not Bumiputera) replace the lain-lain category in official forms. Putrajaya, in taking a leaf from officialdom in the peninsula on the Bumiputera category, appears to have stirred a hornet’s nest in Sabah in particular. Hence, the decision to place the onus on the Sabah Government to define Anak Negeri Sabah (Sabah Native) and Bumiputera Sabah for gazetting purposes. It must be pointed out that it was the Federal Government that came up with the three categories to replace the lain-lain category in Sabah. Having done so, why must the Sabah Government be burdened now with the task of defining two of these categories? Only the larger Dusunic Grouping and the Murutic Grouping in Sabah are considered Orang Asal, a term synonymous with original people, aborigine, indigenous, Native and Bumiputera. “The Cabinet will wait for the gazetting before the new forms can be used,” said Energy, Green Technology and Water Minister Maximus Jonity Ongkili (see pix), also Joint Chairman of the Cabinet Committee which studied the possibility of doing away with the lain-lain category in official forms used in Sabah and Sarawak. “This is to prevent abuse by others who may claim to be Native or Bumiputera Sabah.” Sarawak Opposition Chief Baru Bian, a senior lawyer in private practice and Ba’Kelalan Assemblyman, however feels that the Federal Constitution should include the term Dayak which covers all Orang Asal (original people) in Borneo including Sabah and Sarawak. Generally, the term Dayak is used in Malaysia only in Sarawak. Baru also called for the Federal Constitution to be amended in line with the Sarawak Constitution which has dropped older terms like Land Dayak, Sea Dayak and Murut and replaced them with Bidayuh, Iban and Lun Bawang. Besides Land Dayak, Sea Dayak and Murut, the Federal Constitution defines Sarawak Natives as Bukitan, Bisayah, Dusun, Kadayan, Kalabit, Kayan, Kenyah (including Sabups and Sipengs), Kajang (including Sekapan and Kejaman, Lahanan, Punan, Tanjong and Kanowit), Lugat, Lisum, Malay, Melanau, Penan, Sian, Tagal, Tabun and Ukit. Bisayah, Dusun and the Kun Bawang can also be found in Sabah. In Sabah, the Lun Bawang are called Lun Dayeh. At the same time, there’s a Murut category in Sabah which is separate from the Murut in Sarawak, the latter now known as Lun Bawang. In Sarawak, henceforth, the lain-lain category has been scrapped by a government policy decision to substitute with the term Dayak to describe the Orang Asal – again synonymous with original people, indigenous, aborigine, Native and Bumiputera – from the Iban, Bidayuh, Melanau and Orang Ulu sub-groups. The Orang Laut would continue to be under the Malay (Sarawak) category. In the peninsula, Muslim migrants from Sulawesi, Java, Sumatra, Kerala, Tamil Nadu, and Arab states among others were included in the newly-created Bumiputera (sons of the soil) category by the Tunku Abdul Rahman administration. It was the British who codified the term Malay to describe them since they used Bahasa to communicate with each other. Article 160 (Interpretation) in the Federal Constitution which defines Malay, does not refer to them as Orang Asal (original people), indigenous, aborigine, Native or Bumiputera. Read Further Here: http://asklegal.my/scrapping-lain-lain-category-stirs-hornet-s-nestPicture Credit: KeTTHA"
"‘Stricter’ laws not needed to fight corruption Joseph Francis joseph@asklegal.my The TPPA, the reading goes, does not allow for procedural unfairness in government procurements. COMMENT The consensus appears to be that the laws should be made ""stricter"" to combat corruption and at the same time, it’s being advocated, that existing regulations and laws are sufficient without seeking new provisions in the Trans-Pacific Trade Agreement (TPPA). Sutinah Sutan, formerly deputy chief commissioner of the Malaysian Anti-Corruption Commission (MACC), has for one been pushing this line in the media. Associate Professor Ahmad Martadha Mohamed of Universiti Utara Malaysia thinks that “corruption could be dealt with more effectively if all 12 TPPA member countries emphasised compliance”. The TPPA has a chapter on transparency and anti-corruption. Transparency International-Malaysia (TI-M) President Akhbar Satar wants to see provisions on anti-corruption, transparency and integrity in the TPPA to ensure that action would be taken against anyone involved MACC, explaining once why it had to close the files twice on then Sarawak Chief Minister Abdul Taib Mahmud, had then called for ""stricter"" laws to deal with such cases. It was then the Anti Corruption Agency (ACA). Taib “escaped”, despite a state-owned company emerging as his family-owned company and subsequently engaging in “joint-ventures” with other state-owned companies while he was Chief Minister for 33 years, because he followed “procedures”, according to MACC. The MACC did not touch on “procedural fairness” which was the crux of the issue. The procedures on government procurement do not discourage contracts going at twice, thrice and even up to ten times what it should cost the taxpayer. The World Bank refers to this practice as mispricing, a euphemism, and one of the main reasons for illicit money flows and money laundering. The MACC appears to have no stand on an errant public official having a lifestyle not commensurate with his or her income. It has also not raised the international laws against money laundering, the definition being “having assets far in excess of what one could legitimately accumulate over a lifetime”. There’s also the little matter of the ACA having to send its files to the Prime Minister and get his consent before it could proceed in Court against any Barisan Nasional (BN) leader. Invariably, the consent never came until there were political reasons to move against the errant parties, the allegations go, and not without any merit. In Taib’s case in particular, much was made in the media about the Chief Minister holding 25 of the 31 parliamentary seats in Sarawak which were much need by the BN to form the government in Putrajaya. The MACC, reportedly, does not have to send its files to the Prime Minister even if a case involves a BN leader. However, it has no prosecutorial powers. It has send its files to the Attorney General (AG) who in turn reports to the Prime Minister. The AG’s Chambers can assign a deputy public prosecutor, if it so chooses, to the MACC. This brings us back to the RM2.6 billion political “donation” controversy which the AG has instructed and/or advised the MACC to resolve by the end of the year after taking a statement from Prime Minister Najib Abdul Razak. The Wall Street Journal (WSJ) alleged on Friday 3 July, citing government investigation documents, that nearly USD700 million (USD681 million or RM2.6 billion) had entered Najib’s personal banking accounts with AmBank Islamic private banking services before the last General Election in 2013. It appears that USD10 million of the USD681 million came from the Ministry of Finance (MoF)-owned SRC International and became the subject of a reported draft charge prepared by previous Attorney General Abdul Gani Patail against the Prime Minister The Prime Minister, in a rebuttal, said that he had never taken public monies “for personal gain” and denied the money came from the state-owned 1MDB. The money, according to what he told Umno leaders during closed door meetings, was from a donor in the Middle East to help the BN win the General Election. That prompted PKR to file a case in Court against Najib, Umno, and the Election Commission (EC), alleging “election offences” and “electoral fraud”. The MACC has since confirmed the RM2.6 billion was from the Middle East and was a political donation but stressed that, in any case, it would continue investigating the case, apparently given the ""SRC International"" component. The AG’s statement in the media on the MACC investigation further confirms the matter. The TPPA, the reading goes, does not allow for procedural unfairness in government procurement. Also, the sector must be opened up to all and not just confined to any one specific group. The 4th area under the 1st prong of Article 153 in the Federal Constitution pledges that the Malays and Orang Asal would have a special position by way of a reasonable proportion of business from the government. The first three areas are intake into the civil service; intake into institutions of higher learning owned by the government and training opportunities; and government scholarships. Minister of International Trade and Industry Mustapa Mohamed has since announced in the media that the TPPA does not involve any amendment to the Federal Constitution, an obvious reference to Article 153 which has been observed more often than not in the breach. The advent of the TPPA means that Article 153 has to be strictly observed henceforth according to the letter of the law. Also, there can be no procedural unfairness in awarding government business. Picture credit: malaysiakini"
"Citizenship ‘possible’ for Sabah illegals BUT in peninsula Joseph Francis joseph@asklegal.my Under the Federal Constitution, it's virtually impossible to grant citizenship to illegals in Sabah if they continue to remain in the state. COMMENT The Federation of Chinese Associations Sabah (FCAS) Chief T. C. Goh has clearly stirred a hornet’s nest in Borneo by suggesting earlier this week that 3rd and 4th generation illegal immigrants in Sabah, apparently illegal because they are descended from illegal immigrants, be given “temporary” citizenships and permanent residence if they fulfill the criteria. The caveat is that they must be needed for the labour force in Sabah. He complained that at present elements among the authorities concerned in Sabah were not going after unemployed illegal immigrants but only those employed by the Chinese business community. He charged that this was wrongdoing and alleged that certain elements among the authorities concerned were hoping that the employers would “rescue” their detained illegal workers. Otherwise, those detained are deported, “but return by nightfall by the backdoor”, claimed Goh. Sabah Deputy Speaker Johnny Mositun, in dismissing Goh’s call, described the illegal immigrants, 3rd generation, 4th generation or whatever generation, as “criminals”. He warned that they must be dealt with by ""the full force of the law."" Under the Federal Constitution, it's virtually impossible to grant citizenship to the illegals in Sabah if they continue to remain in the state. The only way to get around this is for Parliament, with the consent of the Sabah and Sarawak Governments, to declare amnesty for the illegals. Of course, that will never happen because it's a political ""hot potato"". So, it's better for the illegals in Sabah to ""migrate"" legally to the peninsula with entry permits and secure work permits. From there, they can graduate to permanent residence and citizenship. But how are they going to migrate to the peninsula unless they get valid travel papers from their countries of origin and do these countries still recognize them as citizens or regard them as having lost that status? In the latter case, they would fall into the category of stateless people, of which there appears to be some 350,000 in the peninsula, going by figures claimed by Hindraf Makkal Sakthi, the ad hoc apolitical human rights NGO working across the political divide. The people in the peninsula, except for the Orang Asli being all descendants of immigrants, will probably accept the illegals in Sabah without too much difficulty. In fact, judging from media reports, many have been caught in the peninsula after coming face to face with the system for various reasons including crime but claimed to be Sabahan. It's not known what happened to these people. However, Sabah too may need these illegals as labour. That's the dilemma. One way is for Sabah (and Sarawak) to get migrant workers from Kalimantan, Nepal, Myanmar, Thailand, Cambodia, Timor Leste, Vietnam and northern Philippines to replace the illegals in Sabah. The Orang Asal in Sabah and Sarawak will accept these people. There must also be adequate training opportunities in Sabah and Sarawak to train the Orang Asal and other locals to help do away with the need for cheap foreign labour. The economy must graduate to a higher level which does not need foreign labour. Charles Dickens, who started as a Court reporter, may have described the law as an ass but “the law is the law”. Citizenship is an automatic right after an extraordinary event happens. These include War including Civil War, Independence and Revolution. These three extraordinary events will bring about a codified (i.e. written) Constitution which spells out citizenship rights. In some countries like Britain, they have an uncodified (unwritten) Constitution because they didn't go through the extraordinary events on their own land. What's important about the Constitution is not only the document but conventions i.e. the working of the Constitution. Besides the extraordinary event, the Constitution spells out how citizenship may be obtained. Picture credit: sabahkini.com"
"Freedom of Information Enactment - 4 years down the road Picture credit: The Nut GraphMany civil society groups in Malaysia have been clamouring that there is a need for freedom of information. A number of civil society groups, including the Southeast Asian Press Alliance and Article 19, recently urged the Association of Southeast Asian Nations (ASEAN) to “demonstrate its commitment to public participation by promoting access to information within ASEAN and among its member states.” This was reported by the website known as freedominfo.orgSuch organisations are of the opinion that freedom of information is an essential part of democracy and accountability of a government. The citizen voting for it and in return there is a need for the said government to be accountable to the citizen. Quid pro quo Prior to 2008, Malaysia lacked any legislation pertaining to freedom of information. Of course we know of the Official Secrets Act 1972, this piece of legislation was enacted to stem the flow of information. Once a document is deemed as an official secret, it cannot be disclosed by the Government employees. To do so attracts criminal prosecution. However, with the new change in political climate after the 2008 general elections, the opposition party had wrestled control of the states of Penang and Selangor from the ruling Barisan National government. Selangor proudly passed the Freedom of Information Enactment on 1 April 2011 (‘FOI Enactment’). Some of the important features of the enactment is as follows: an obligation to reveal information protection from prosecution or sanction for Information Officers or government officers who disclose information in good faith the possibility of review by the courts a more independent State Information Board (to replace the Appeals Board) a narrower list of exemptions, with a public interest override This was hailed by the Commonwealth Human Rights Initiative (‘CHRI’) as “ … demonstrating its commitment to promoting right to information as an instrument to promote transparency and accountability in the government of Selangor.” The Malaysian Bar Council, applauded the move, calling it a “ground-breaking piece of draft legislation” that seeks to “enhance disclosure of information for the public interest, to provide to every individual an opportunity to access to information made by every department of the State Government” The newly elected Government of the State of Penang followed suit with its own enactment in 2011. It’s now been almost 5 years since the FOI Enactment was passed. The question is, how effective is the legislation? It was reported today that Selangor DAP assemblyman Yeo Bee Yin was upset when the Selangor State government, refused her request to know the remuneration of directors in state-owned subsidiaries. Yeo Bee Yin was quoted as saying her request had been “unreasonably declined”. This is not the first occasion that persons requesting for information under the FOI Enactment have had their request met with issues. In the month on June 4, 2014, a 75 year old grandmother of three, Madam Chia Gek Suan, sought to find out more information about the Kidex (Kinrara-Damansara Expressway) project under the FOI Enactment. Madam Chia received a response that she described as inadequate and did not comply with the Freedom of Information legislation. Again, in the case of the Say No To DASH (Damansara-Shah Alam Highway) group (SNTD), requests for information under the FOI Enactment were not complied with by the Selangor State Government. This was the complaint made by SNTD spokesperson, Michelle Wong, on 10th of March this year. When confronted the issues plaguing the FOI Enactment, Selangor State Assembly speaker, Hannah Yeoh commented that, “Some operational problems that we discovered ... since the passing of the law, there is no exco or state minister put in charge of the portfolio to make sure there is execution.” “You cannot leave such a controversial act in the hands of civil servants because civil servants have been trained all this while to operate using the Official Secrets Act.” Hannah further added that the officers handling requests for the public disclosure of state documents lack training and are often transferred to another department before they are able to process a request. Looking at the issues revolving around the FOI Enactment, one has to conclude that the Selangor Government has a long way to go in ensuring that its intentions are truly felt by the residents of Selangor. What is the use of reformist legislation when it’s a mere ceremonial regalia? As we Malaysians say, ‘good to see, not good to eat’."
"TPPA in layman’s terms, shorn of the jargon Joseph Francis joseph@asklegal.my COMMENT The consensus of public opinion, as evident in the Court of Public Opinion in general and the social media in particular, favour the translation of the complicated 10,000 page Trans Pacific Partnership Agreement (TPPA) into layman’s terms, shorn of the technicalities and the jargon. Most people, even lawmakers and lawyers, confess that they are having difficulties in coming to grips with the language in the TPPA. The TPPA is a multinational free trade agreement in which the US is the main driver. Other nations which have signed up are Canada, Mexico, Chile, Peru, Australia, New Zealand, Malaysia, Singapore, Brunei, Vietnam and Japan. Indonesia has indicated interest and won’t be able to re-negotiate the TPPA since talks have been concluded. A cost-benefit analysis (CBA) of the TPPA would be released in two weeks time by the Ministry of International Trade and Industry (MITI.) The jury would still be out in the coming weeks and months on human rights, a point raised by Suhakam, and the issue of investors being allowed to sue governments over public policy. If the TPPA was controversial to begin with, the opposition to the agreement appears to be somewhat more mute since the release of the text of the Agreement. MITI has a note on its website http://www.miti.gov.my/ directing traffic to the New Zealand Government website http://www.mfat.govt.nz/Treaties-and-International... for the text of the Agreement. The various stakeholders see the TPPA in terms of what it means to them oblivious to what it may spell out for the economy and the country. Some examples would suffice to illustrate the point on stakeholders. The Malaysian Trade Union Congress (MTUC), for one, has been unable to fathom the TPPA and has called for a dialogue with the Minister of Human Resources and the Minister of International Trade and Ministry on the agreement. Malay interest groups, before the TPPA was released, were more concerned that the new trade agreement would not accommodate Article 153 in the Federal Constitution i.e. a reference in its 1st prong to a special position for the Orang Asal and Malays in four specific areas. They appeared less than impressed with assurances from the Minister of International Trade and Industry (MITI) Mustapa Mohamad that Putrajaya would not allow the TPPA to circumvent the Federal Constitution. Mustapa has a point in that it’s unlikely that the TPPA would feel challenged by Article 153 which has been enshrined in the Federal Constitution. In any case, Article 153 has virtually fallen into disuse as much as the related New Economic Policy (1970-1990) from even shortly after it was introduced. During the negotiations stage, Washington was more concerned that the Government of Malaysia open up the procurements sector which had been confined to only specific groups under the country’s affirmative action policies. Putrajaya was unable to counteract Washington’s arguments since the fourth specific area under Article 153, in its 1st prong, does not prohibit business from the government sector going to any party other than the Orang Asal and Malays. If at all such business has remained the exclusive preserve of the Orang Asal and Malays, it was a policy decision by the Federal Government, and in breach of Article 153 itself. Aside from the four specific areas under the 1st prong of Article 153, the rest of the economy remains open and can accommodate the letter and spirit of the TPPA. Briefly, the four specific areas are intake into the civil service, intake into institutions of higher learning owned by the government and training opportunities, government scholarships and opportunities from the government to do business. Patently, the Federal Constitution reserves a reasonable proportion in the four specific areas, by way of a special position, for the Orang Asal and Malays. Again, the component outside the reasonable proportion envisaged in the Federal Constitution remains open and thereby in line with the letter and spirit of the TPPA. The, there’s concern in the medical community that patients, long used to cheaper generic drugs, would be saddled with expensive patent drugs under intellectual property rights and the right of manufacturers to recover the cost of research and development (R&D). Here, there’s a long shadow being cast over the TPPA following a recent Supreme Court of India decision to deny patent rights in India to Pfizer of Switzerland, better known for Norvasc, for a new cancer drug. It’s instructive that the Indian Supreme Court ruled that Pfizer had only one extra and minor ingredient in its new cancer drug and which wasn’t really necessary. The Supreme Court, in a decision which has worldwide implications, endorsed and echoed the World Health Organisation’s (WHO) stand that all 20,000 proteins are known to man and that no new drug was possible, thus knocking a big hole in the argument of drug companies that they are engaging in expensive R&D to come up with new drugs and should be allowed to recover their costs and compensate themselves accordingly through patent rights."
"Australian Complimentary Protection Visa available for M’sians at risk Joseph Francisjoseph@asklegal.myIf a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia. NEWS UPDATE Malaysians who have a genuine fear of being abused by authorities, by denial of procedural fairness that lead to losing their personal liberties, places them in harm’s way, or could be abused in prison, among others, may be entitled to Australian protection under the Australian Complimentary Protection Visa, said Immigration Manager Robert K. Chelliah in an email. He cited the case of de facto Hindraf Makkal Sakthi Chief P. Uthayakumar who, in his opinion, “has certainly documented his experience of cruelty while incarcerated under the Sedition Act” not so long ago. Uthayakumar had allegedly written to then British Prime Minister Gordon Brown and claimed that “there was ethnic cleansing in Malaysia”, a reference to the government sector not reflecting the demography of the nation. “Even if you are a convicted criminal of murdering a mistress of well-known personalities, for example, you may well be entitled to run to Australia and seek protection under the law,” said Chelliah who has been appointed Immigration Manager for fugitive Altantuya Shaariibuu (see pix) killer Sirul Azhar Umar who is currently under detention in Sydney, Australia. He was also commenting on the case of two SRC International directors, Nik Faisal Ariff Kamil and Suboh Md Yassin ,being on the run and wanted by the Malaysian Anti Corruption Commission (MACC).The construction of the following words, he said in his email, explains who would be entitled to Protection Visa:Complementary Protection CriterionIf a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment”, and “torture”, are further defined in s.5(1) of the Act.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.Picture Credit: the Sydney Morning Herald"
"Scrapping ‘lain-lain’ category stirs hornet’s nest Joseph Francis joseph@asklegal.my The creation of the Bumiputera Sabah category separate and distinct from the Anak Negeri Sabah (Sabah Native) category has raised eyebrows. COMMENT The Federal Government, in announcing that the lain-lain (others) category would be done away with in official forms in Borneo, appears to have taken a leaf from officialdom in the peninsula and stirred a hornet’s nest in Sabah in particular. In the peninsula, Muslim migrants from Sulawesi, Java, Sumatra, Kerala, Tamil Nadu, and Arab states among others were included in the newly-created Bumiputera (sons of the soil) category by the Tunku Abdul Rahman administration. It was the British who codified the term Malay to describe them since they used Bahasa to communicate with each other. Article 160 (Interpretation) in the Federal Constitution which defines Malay, does not refer to them as Orang Asal (original people), indigenous, aborigine, Native or Bumiputera. Besides lain-lain, government forms previously had three other categories i.e. Malay, Indian and Chinese. In Sarawak, henceforth, the lain-lain category has been scrapped by a government policy decision to substitute with the term Dayak to describe the Orang Asal – synonymous with original people, indigenous, aborigine, Native and Bumiputera – from the Iban, Bidayuh, Melanau and Orang Ulu sub-groups. The Orang Laut would continue to be under the Malay (Sarawak) category. Sabah however has shades of officialdom from the peninsula when it comes to the term Bumiputera. Besides the usual Malay, Indian and Chinese categories, the lain-lain category would be replaced by three categories i.e. Anak Negeri Sabah (Sabah Native); Bumiputera Sabah; and Bukan-Bumiputera (not Bumiputera). It’s not known why there should be a Bukan-Bumiputera category in Sabah when there’s already the Indian and Chinese categories in the forms and the lain-lain category could have been retained for other Bukan-Bumiputera. However, that’s not the only issue. The creation of the Bumiputera Sabah category separate and distinct from the Anak Negeri Sabah (Sabah Native) category has raised eyebrows. Federal Minister Maximus Jonity Ongkili has explained that “the Anak Negeri Sabah (Sabah Native) wanted to be listed by themselves to prevent abuse by others who may claim to be so (i.e. claim to be Orang Asal).” The law states that only the Orang Asal can own NCR (Native Customary Rights) land. Hence, it’s being implied that Bumiputera Sabah cannot own NCR land since they are not Orang Asal. Briefly, NCR is all about property rights, a concept enshrined in the Federal Constitution, the state constitutions in Sabah and Sarawak, and under Adat where customary law has the force of law. The Federal Court is currently revisiting the issue of customary law having the force of law, an earlier declaration from the High Court to the Federal Court on NCR cases. The semantics appear to be a bundle of contradictions. Since Orang Asal is synonymous with original people, indigenous, Native and Bumiputera, there cannot be a separate Bumiputera Sabah category that is not entitled to own NCR land. It’s not known which ethnic groups in the state comes under the Bumiputera Sabah category, but there are no prizes for guessing that it includes the Bajau and Suluk, two major groups from the Philippines long resident in the state. The Bajau and Suluk in any case, but excluding recent arrivals, have long been unofficially enjoying “Bumiputera” status in the state. This has prompted the Bugis from Sulawesi, Indonesia, in Sabah to demand similar status but to no avail. They have been pointing out unsuccessfully that Bugis in the peninsula come under the Bumiputera category and includes Prime Minister Najib Abdul Razak himself, for example. It’s not known whether the prayers of the Bugis in Sabah have been answered through the Federal Government decision to scrap the lain-lain category and introduce the Bumiputera Sabah category instead along with Anak Negeri Sabah (Sabah Native) and Bukan-Bumiputera. Alternatively, the Bugis in Sabah perhaps continues under the Bukan-Bumiputera category since they are neither Indian nor Chinese, two other Bukan-Bumiputera categories and the lain-lain category has been scrapped. In that case, the Bugis would want to know why they are Bukan-Bumiputera when the Bajau and Suluk, again the two major examples, continue to fall in the Bumiputera Sabah category as from the days of the Tunku Abdul Rahman administration, albeit unofficially until now. Again, if Bajau and Suluk in Sabah can fall “officially” this time under the Bumiputera Sabah category, Indians and Chinese in the state would want to know why they are being excluded. There are 42 ethnic groups in Sabah and 22 in Sarawak, in both cases excluding Indians and Chinese and in the former (Sabah) category excluding Malays. The 42 ethnic groups cover both Orang Asal and non-Orang Asal and the 22 ethnic groups cover both Orang Asal and Orang Laut (Sarawak Malay). There are two major Orang Asal groups in Sabah i.e. Dusunic Grouping and Murutic Grouping. The Dusunic Grouping is sometimes referred to as Dusun and Kadazan (i.e. urban Dusun).Picture credit: Osmand.Danny 2010 (a girl in the traditional Dusun Lotud costume from Tuaran.)"
"Quite unlikely ‘outside lawyers’ practise in Sabah, S’wak Joseph Francis joseph@asklegal.my Many lawyers in Sabah and Sarawak in fact engage lawyers in the peninsula on an ad hoc basis. COMMENT It wasn’t exactly clear why the Sabah Law Association (SLA) and Advocates Association of Sarawak (AAS) issued a joint statement last week warning against “unqualified lawyers” from outside Sabah and Sarawak doing legal work in both jurisdictions. The joint statement appears to imply that lawyers from Peninsular Malaysia are doing such work in the two states. This is unlikely as they can undertake such work, on behalf of lawyers in Borneo, in the peninsula. In fact, the practice has been going on as far as one can recall. Even so, there’s probably very little that can be done if a law graduate from the peninsula works with a local law firm in Sabah or Sarawak and confines himself or herself to solicitor’s work. The only hindrance will be if the Immigration Department declines to issue a work pass without reference to the SLA or AAS. Many lawyers in Sabah and Sarawak in fact engage lawyers in the peninsula on an ad hoc basis to assist with their cases especially when it comes to the higher courts in Putrajaya. Lawyers in the peninsula are unlikely to pick up legal work directly from the two Borneo states as they may be unfamiliar with the jurisdictions. It goes without saying that peninsular lawyers can appear in the High Court of Sabah and Sarawak on an ad hoc basis, provided the application for admission to the High Court is moved by a local lawyer whom they are assisting with a particular case. In addition, they must apply for a temporary work pass from the Immigration Department. The SLA or the AAS, as the case may be, must have no objections to the said applications. The SLA, in particular, should focus more on the habit of quite of number of local lawyers picking up more briefs than they can handle and then farming them out to other lawyers who may not be so fortunate to have much work. This is especially true of the new, young and struggling lawyers. The legal profession in Sabah and Sarawak is jealously guarded by the local fraternity. One example is the fact that English remains the official language of the Court in Borneo, despite pressure applied over the years by the Federal Government on the Sabah and Sarawak Governments to switch to Bahasa. Hence, English is also used in the Court of Appeal and the Federal Court if a case originates from either Sabah or Sarawak. And, only Borneo lawyers may appear in such cases, the restriction being made clear by case law not so long ago after the matter was raised in the higher courts. (* One reason why lawyers in the peninsula love doing work originating from Sabah and Sarawak stems from the fact that English is the language of the Court in Borneo.)The consensus in the legal fraternity in Borneo favours opening up the profession, under World Trade Organisation (WTO) rules, to foreign lawyers but not to those in the peninsula. The jury is still out on the matter on when the sector can be opened up. Sabah is a unique case by itself since the local laws state that one needs to have only “a strong Sabah connection”, if not Sabahan, to be admitted to the High Court of Sabah and Sarawak in Kota Kinabalu. Justice Ian Chin, who retired early in 2008, once defined what having “a strong Sabah connection” meant viz. having a Sabah address in the MyKad, registered to vote in Sabah, and owning at least one residence. It goes without saying that one must have resided in Sabah for a reasonable number of years prior to the application to be admitted to the High Court. There are quite a number of lawyers from the peninsula practising in Sabah on the basis that they have “a strong Sabah connection”. Some examples come to mind. Two teachers from the peninsula took up law and were subsequently admitted to the High Court in Kota Kinabalu. A Prisons Officer from the peninsula, serving in Sabah, took up law after early retirement and is currently practising criminal law in Kota Kinabalu."
"There’s an Australian precedent for the Agong to replace a Prime Minister Joseph Francisjoseph@asklegal.myThe Agong may act at his own discretion and listen to other people than the Cabinet. NEWS UPDATE There appears to parallels between the role of the British Queen, under the uncodified British Constitution, and that of the Agong under the Federal Constitution, based on the case that former Prime Minister Mahathir Mohamad (picture) has made out in his recent blog posting.To digress a little, the British Constitution makes no mention of a Prime Minister and Council of Minister. All executive authority rests with the Queen. It’s by convention that the Queen appoints a Prime Minister and Council of Ministers. On paper, the Queen can assume the executive authority which had always rested in her role. In practice, however, the people would not stand for it. Indeed, if the unthinkable happened and the Queen assumed all executive authority, the French Revolution would seem like a walk in the park if the British rose up in revolt.Mahathir appears to advocate the line that since executive authority rests with the Agong he could step in and show Prime Minister Najib Abdul Razak the door. In practice, it’s unlikely to happen. However, if it does happen, it will be a storm in a teacup. If push came to show, no Court would dare go against the Agong.There’s a precedent from Australia where the Queen is represented by the Governor-General. It culminated on 11 November 1975 with the dismissal from office of the Prime Minister, Gough Whitlam of the Australian Labor Party (ALP), by Governor-General Sir John Kerr, who then appointed the Leader of the Opposition, Malcolm Fraser, as caretaker Prime Minister.Mahathir has underlined some very important principles in his blog posting viz. executive authority rest with the Agong and was exercised in his name; there's no separation of powers between the government and the Agong; and if the government is in breach of the principles by which it's supposed to act, the Agong can remind or move in.The citizens of this country are also the subjects of their Rulers, reminded Mahathir in his blog posting. “As Rulers they must care for the welfare of the people.If in their opinion the government should allow expeditious investigations to be carried over the issues of concern to the people and the country, it is the duty of the Rulers to make known to the government the dissatisfaction of the people over the issue and to ask for the matter to be addressed, added Mahathir.“Currently, the Prime Minister as head of the elected legislators has clearly been in breach of several principles.”All these are public knowledge, pointed out Mahathir. “The Rulers may have heard and probably received petitions on the authoritarian disregard for the law and rules by the government.”Mahathir was commenting on the Deputy Prime Minister making reference to the separation of powers in the latter’s take on the recent statement by the Rulers over the need for investigations on 1MDB and the RM2.6 billion in Najib’s account to be expedited. “Is this a breach of the assumed separation of powers between the Rulers and the government?”It is true that the Agong and the Rulers are constitutional monarchs, conceded Mahathir. “But that does not mean that they are just rubber stamps to validate all the acts of their governments.”Sec 39 of the Federal Constitution (State constitutions follow closely that of the Federal Constitution) states clearly that “The executive authority of the Federation shall be vested in the Yang di-Pertuan Agong and exercisable, subject to the provision of any Federal law and of the Second Schedule, by him or any Minister authorized by the Cabinet, but the Parliament may by law confer executive functions on other persons.Section 40 states clearly that the Agong shall be entitled, at his request to any information available to the Cabinet, stressed the former Prime Minister. “These two sections clearly give the Yang di-Pertuan Agong some executive roles.”Section 40 para (2) clearly states, said Mahathir, the Yang di-Pertuan Agong may act in his discretion in the performance of:a) the appointment of the Prime Ministerb) the withholding of consent to a request for dissolution of Parliamentc) Federal law may make provisions for requiring the Agong to act after consultation with or on the recommendation of any person or body of personsIn the recent past, said Mahathir, “we have seen Rulers rejecting nominees by the majority party for the office of Menteri Besar”.Should the Prime Minister request for the dissolution of Parliament, the Agong may reject, argued Mahathir. “Again, we see here that the Agong and the Rulers may act on their own discretion.”“They may also consult and accept recommendations of any person or body of persons.”Obviously, if petitions are made or there is a public clamour, said Mahathir, the Rulers may not have to listen only to the Cabinet.What is clear is that nothing in the Constitution talks about the separation of powers between the government and the Agong. “In fact in many instances the Agong may act at his own discretion.”And the Agong may listen to other people than the Cabinet, reiterated Mahathir. “This is only as it should be as failure of the Cabinet to address complaints by the people may require the Agong and the Rulers to urge the government to respond.”In making their statement, the Rulers were not in any way exceeding the provisions of the Constitution, continued Mahathir. “They were in fact abiding by the provisions of the Constitution.”On the other hand the same cannot be said regarding the principle of the separation of powers between the legislative, the executive and the judiciary, said the former Prime Minister.Picture credit: FMT"
"Action by Member States of ASEAN to Address the Haze affecting the region Malaysia is suffering from the haze that envelopes her for long periods of time. Adverse effects resulting from the haze affects many of her citizenry and economy. This is especially evident in the past weeks wherein Malaysia’s Air Pollutant Index (API) soared to “very unhealthy” levels. Malaysia’s repeated offers to help on a transboundary basis have not been as enthusiastically received as one would have thought. Our Minister of Natural Resources and Environment has called upon the Attorney General to look into the armoury of the law to see what can be done. In the meantime, the ground swell of resentment in having to live in such unhealthy conditions grow by the day. It is highly ironical that Malaysia who often face with trepidation the usual floods that come at the end of the year, now looks forward to the Northeast monsoon expected in mid-November to bring the rains to the region to put out the forest fires raging in Sumatra and Kalimantan as the limited human intervention, thus far, has not been good enough. Based upon reports published in the mass media, the haze seems to be caused by the use of slash-and-burn method to clear forests and plantations for agricultural purposes in Indonesia. According to Herry Purnomo, a scientist at the Center for International Forestry Research (CIFOR) and professor at Bogor Agricultural University, the costs of mechanised [land clearing] is US$150.00 per hectare whereas the slash-and-burn clearance method costs only US$7.00 per hectare. Unfortunately, the employment of the latter method was apparently not well managed leading to the fires burning out of control. Both Malaysia and Indonesia are parties to the ASEAN Agreement on Trans-Boundary Haze Pollution of 10th June 2002 (“ASEAN Haze Pollution Agreement”) with Indonesia having ratified it on 14th October 2014. The other member states who are parties to this agreement are Cambodia, Lao, Myanmar, Philippines, Singapore, Thailand and Vietnam. Article 4 of the agreement expressly provide that the member states shall co-operate in developing and implementing measures to prevent and monitor transboundary haze pollution as a result of land and/or forest fires which should be mitigated, and to control sources of fires. Article 9 calls upon each member state to undertake measures to prevent and control activities related to land and/or forest fires that may lead to transboundary haze pollution. Whilst there is a host of provisions enjoining each party to assist one another, unfortunately, there is no provision on what the consequences will be if any member state were to neglect, fail and/or refuse to comply with her obligations. It is indisputable that the ASEAN Haze Pollution Agreement does not have any provisions allowing any member state to be taken to task for any breaches of her obligations, for preventive measures to be imposed and compensation paid for damages suffered. In the international front, two cases are instructive. One is The Corfu Channel Case and the other, the Trail Smelter Case (1938). The Corfu Channel Case was decided by the International Court of Justice in 1949. In this case by special agreement made between the Government of Great Britain & Northern Ireland and the Government of the People’s Republic of Albania, their dispute was referred to the International Court of Justice (“ICJ”). One of the issues to be resolved was whether Albania is responsible under international law for the explosions which occurred in Albanian waters and for the damage to property and loss of human life and whether there is any duty to pay compensation. The damages here was the loss of lives of 44 and personal injuries suffered by 42 British officers and men and damage to two ships. By a majority decision (eleven votes to five) the ICJ held that Albania is responsible under international law for the explosions which occurred in Albanian waters and for the damage and loss of human life that resulted therefrom with damages to be assessed. In the Trans Smelter Case, the government of the United States of America (“US”) took legal action against Canada. Here, a Canadian smelter company was operating within the Canadian border adjoining the Washington State in the US. The Canadian company smelted zinc and lead leading to the emission of sulfur dioxide gases which were carried by the wind over to the farms in US causing damage to forest trees, soil and crop yields. The US charged Canada for these damages. Under the International Boundary Waters Treaty,1909 made between Canada and the US, the matter was referred to the International Joint Commission which recommended that Canada pay $350,000 by way of damages but did not make any decision on whether the Canadian smelter company could continue or what measures it had to take to prevent pollution. The US rejected the recommendations and a tribunal was formed comprising one Belgian, one Canadian, one American and two scientists. One of the findings of the tribunal was that it was the upper air currents rather than the trade winds that were responsible for the delivery of smoke into the US. Compensation was ordered to be paid and more importantly it was ordered that the Canadian company has to undertake a regime to eliminate the damage its smoke was causing. It was estimated that the costs to undertake such a regime was in the region of $20 million. The two principles that came out of this case are that a state has an obligation to prevent transboundary harm and the other is that the polluter pays. In the ASEAN Haze Pollution Agreement, Article 27 merely provides that any dispute between the parties as to compliance shall be settled amicably by consultation or negotiation. It follows, that if no settlement can be achieved by consultation and negotiation, there is no further recourse to an independent tribunal for claims to be made. In the circumstances, whilst the Malaysian government look into passing laws akin to the Singaporean Transboundary Haze Pollution Act 2014 which has limited bite, the member states of ASEAN must with due haste take urgent steps to provide provisions in the ASEAN Haze Pollution Agreement to take defaulting parties to an independent tribunal to seek recourse and compensation. In this regard, this matter should be put on the table and dealt with as the first matter of importance during the 11th Meeting of Conference of Parties to Haze Agreement which is to be held in Hanoi, Vietnam from the 26th October to 31st October, 2015. Even if this cannot be resolved during this meeting, all the non-defaulting member states must make concerted efforts to bring pressure upon Indonesia for her to agree to a special agreement, just like in the Corfu Channel and Trans Smelter cases, for this issue to be brought to an independent tribunal for claims to be made and for a preventive regime to be ordered to be put in place and which can be enforced."
"Defeating Bills in Parliament a no confidence move Joseph Francis joseph@asklegal.my It would be sufficient for the MPs to defeat Najib’s Budget 2016 which will be presented later this month. NEWS UPDATE Bukit Mertajam MP Steven Sim (see pix) has suggested that in the absence of the proposed no confidence motion against Prime Minister Najib Abdul Razak seeing the light of day, given that it has been tucked under 24 other government business, MPs can also voted down every Bill presented by the ruling coalition in Parliament. One suggestion floating around in the lobby at Parliament House is that it would be sufficient for the MPs to defeat Najib’s Budget 2016 which will be presented later this month. “This sitting is a litmus test of the integrity and conscience of all MPs on our duty to the people and the country,” said Sim. “We must not disappoint the rakyat who are suffering under the current regime.” He cited three key reasons why the Opposition’s motion of no confidence should be given priority over other motions this Parliament sitting: Firstly, the legitimacy of the Prime Minister’s Budget was in question. “In view of the Prime Minister’s Supply Bill at the end of the first week of Parliament on 23 October 2015, the Speaker should prioritize the motion of no confidence tabled by the Petaling Jaya Selatan MP Hee Loy Sian,” said Sim. “How can the Prime Minister’s Supply Bill be legitimate if his administration was hanging by a thin thread and in danger of being ousted in the House?” “A government which has lost the confidence of the House cannot make important decisions.” Secondly, said Sim, the result of a successful motion of no confidence is a caretaker government. “As such it is not allowed to make new policies or new appointments,” he said. “The government and backbenchers’ motions preceding the motion by Petaling Jaya Selatan mostly deals with such new policies and appointments.” In fact, he added, the first and second items are the Prime Minister’s motions on the new Cabinet as well as the new Public Accounts Committee (PAC). “Item no.3 through no.6 deals with important new legislation and amendments to existing legislation.” Thirdly, established convention states motion of (no) confidence takes precedence over other motions. Sim was expressing total disagreement with Minister in the Prime Minister’s Department, Azalina Othman, that placing the Opposition’s motion of no confidence as the 25th out of 28th item under the Dewan Rakyat’s Standing Orders and Motions is the norm. “The motion of no confidence is an important and established convention under the Westminster-style Parliament which we practice in Malaysia,” added Sim. “This is because the legitimacy of the government rests upon it receiving the confidence of the House. In other words, he stressed, the normal operation of a Westminster Government depends on whether it retains the confidence of the House. “If it fails to retain such confidence, the government shall either resign or dissolve the Parliament,” said Sim. “It cannot continue its normal operation.” And the only way to test whether such confidence exists, he continued, and therefore whether the government has legitimacy, was to allow for the motion of no confidence to be tabled as early as possible.Picture Credit: malaysianinsider"
"No confidence motion in Parliament must take precedence (Image credit: FMT) If confidence was lacking in the Prime Minister there’s no rationale in MPs first going through other items on the Agenda. COMMENT It was surprising to read in the media that a no confidence motion in Parliament, introduced by Petaling Jaya Selatan MP Hee Loy Sian of PKR, has been placed 25thout of 28 items for the parliamentary session. While government business generally takes precedence over other business, an exception should have been made in this case and the no confidence motion placed at the top of the list. There’s no need for precedents in this case although there’s one in Malaysia. Established convention states motion of (no) confidence takes precedence over other motions. “By historical convention, ‘the government will always accede to the demand from the Opposition to allot a day for the discussion of such a motion’ and while the “government is entitled to have regard to exigencies of its own business, a reasonably early day is invariably (always) found.” (Source: p. 344, Erskine May, 24th Edition, 2011) According to a UK Parliament report on Fixed-term Parliaments Bill, “a motion of confidence should take precedence over other motions” (Source: p. 38, Fixed-term Parliaments Bill, Second Report of Session 2010-11, 10 September 2010). The famous British constitutional expert, Sir Ivor Jennings, stated that, “the absurdity of a system in which the government postpones its own business in order to let the Opposition threaten death and damnation is only apparent. The Opposition is not just a nuisance to be tolerated, but a definite and essential part of the Constitution.” (Source: p. 158, Parliament, 2nd ed, 1970) This is certainly based on Erskine May’s principle that the practice for allowing the early tabling of a motion of no confidence is “founded on the recognised position of the Opposition as a potential government” and thus “guarantees the legitimacy of such an interruption of the normal course of business.” (Source: p. 344, Erskine May, 24th Edition, 2011). If the confidence of the august house was lacking in the Prime Minister Najib Abdul Razak, there’s no rationale in MPs going through 24 other items on the Agenda before coming to the no confidence motion. When Najib’s maternal uncle, Hussein Onn became Prime Minister in 1976 upon the death in office of his brother-in-law and Najib’s father Abdul Razak on 15 Jan 1976, the first item that Parliament considered upon resuming was a confidence motion introduced not by the Prime Minister himself but a ruling party Senator Wan Ibrahim. This is the summary of the motion: “The Dewan congratulates Yang Amat Berhormat Datuk Hussein bin Datuk Onn for being appointed by His Majesty the Yang di-Pertuan Agong as the third Prime Minister of Malaysia , and gives him full support and cooperation for him to fulfill his great responsibility as the Prime Minister.” “This motion was successfully brought up to the Parliament under sections 13(1), 25, and 26 of the parliamentary Standing Orders, and was being passed with 4 absentees and 20 MPs participating in the debate.” The basis of the latest proposed motion is the reported USD700 million (RM2.6 billion) deposit in Prime Minister Najib Abdul Razak’s private bank account which was later explained as being a political donation from a Middle Eastern source. The proposed motion reads: “That this House put forward a no-confidence vote against Prime Minister Najib Abdul Razak for receiving RM2.6 billion in 'donation money' which he had denied in the beginning, then threatened to sue The Wall Street Journal, and finally admitted the money was obtained through an individual from the Middle East ""Without explanation of why the 'donation money' was deposited into his personal accounts and not in the name of the party, the House is also unsatisfied over investigations into 1MDB by the 'special task force' which should be investigating this scandal, but was dissolved without explanation with the attorney-general Abdul Gani Patail's service being terminated; Malaysian Anti-Corruption Commission (MACC) officers transferred; police interfering in the MACC and Bank Negara's investigation, and the public accounts committee, which was in the middle of its investigation into the 1MDB case, being unable to function after four of its members were appointed as minister or deputy minister by the prime minister; the Special Branch deputy chief being transferred to the Prime Minister's Department without any duties. ""Given the problems mentioned, Prime Minister Najib Abdul Razak has affected the country's image in the world and caused investors to lose confidence in the government, to the extent the economy has become unstable, (with) the share market declining badly as well as the fall of the value of the ringgit against the US dollar. ""Therefore Malaysians no longer believe in the prime minister, and this House should resolve to put forward a no-confidence vote against the prime minister"". Again, the first female Leader of the Opposition of Malaysian Parliament, Wan Azizah Wan Ismail, together with another 14 MPs from Pakatan, proposed a no-confidence motion in 2008 against then-Prime Minister Abdullah Ahmad Badawi. This is the summary of the motion: “We are proposing a motion of no confidence against Prime Minister Datuk Seri Abdullah Ahmad Badawi, because of the way he and his cabinet ministers handled the national executive tasks, had caused the people to lose confidence on the integrity of the government.” The motion had no chance to get into the Dewan, as it was being vetoed in the Speaker's office under section 18(7) of the Parliamentary Standing Orders, on the grounds that the bill stated that a vote to be taken on the no-confidence motion but the provisions it was filed under was to seek ""negotiation"". However, under sections 27(3) and 45(1) of the Parliamentary Standing Orders, it is still possible to table a motion of no confidence against the Prime Minister, argues Ooi Heng, the Executive Director of Political Studies for Change (KPRU – Kajian Politik untuk Perubahan), a think tank. Standing Order 27(3) states that, ""except as provided in Standing Order 43 and in paragraph (5) of Standing Order 86 and 26(1), not less than fourteen days’ notice of any motion shall be given unless it is in the name of a Minister, in which case seven days’ notice or, if Tuan Yang di-Pertua is satisfied upon representation to him by a Minister that the public interest requires that a motion should be debated as soon as possible, one day’s notice shall be sufficient."" And a resolution thereof, said Ooi, is provided under the Standing Order 45(1), which states that ""subject to the provisions of Clause (1) of Article 89 of the Constitution and Clause (3) of Article 159 of the Constitution and these Orders, the House shall, in accordance with the provisions of Clause (3) of Article 62 of the Constitution take its decision by a simple majority of members voting; and Tuan Yang di-Pertua or any other person presiding shall cast his vote whenever necessary to avoid an equality of votes, but shall not vote in any other case provided that where Tuan Yang di-Pertua is a member of the House by virtue only of paragraph (b) of Clause (1A) of Article 57 of the Constitution, he shall have no casting vote in the House or in any Committee thereof."" Earlier, the Speaker of the Dewan Rakyat, Pandikar Amin Mulia, had been reported as saying that the Standing Orders of the Parliament of Malaysia does not state that an MP may propose a no-confidence motion against the Prime Minister. However, at the same time, the Standing Orders do not state that such a motion cannot be proposed."
"1MDB tried to get back USD700m Suresh Kashuerin The money being siphoned out from 1MDB confirms the finding by Bank Negara that the funds were not used in the manner agreed. KUALA LUMPUR: The Sarawak Report, the UK-based whistleblower website, claims in an email that the 1MDB Board of Directors were furious when they discovered that USD700 million had been siphoned out from the company and immediately demanded the money back. “This confirms the statement by Bank Negara last week that the money invested in the joint-venture was not used in the manner agreed.” The website was basing its email on the Saturday 3 October 2009 Minutes of a Special 1MDB Board of Directors’ Meeting, a copy of which it claims to have in its possession. It was not immediately clear how the website got its hands on a copy of the explosive minutes. The Special Meeting was held after 1MDB ploughed USD1 billion into its so-called joint-venture with PetroSaudi International, an unknown little company with no links to the Saudi Arabian Government. “The USD700 million had been snatched from public funds through the Jho Low PetroSaudi heist of the century,” said the email. 1MDB Chairman Mohd Bakke Salleh was apparently so “disgusted’ that the monies had been siphoned out from the company that he resigned soon after along with Azlan Mohd Zainol, another Director, having realised that the USD700 million was gone for good. “Mohd Bakke was replaced by Lodin Wok Kamaruddin who has since waved through every 1MDB deal without a murmur,” said the website in the email. “Lodin Wok and Prime Minster Najib Abdul Razak go back to the days when the latter was at the Ministry of Defence.” “Najib got his way at 1MDB with little resistance from the so-called decision makers at the company.” The Minutes appeared to confirm that the Board was not in control of 1MDB and that its top executive were only taking their orders from elsewhere, presumably the Board of Advisors headed by the Prime Minister and Finance Minister. “Najib is the only person authorized to sign investments decisions,” said the Sarawak Report. “The USD700 million went into the account of Jho Low with Good Star Limited. Jho Low is Najib’s Adviser on 1MDB.” In an earlier Minutes dated 18 September 2009, also exposed by the Sarawak Report, the Board expressed unhappiness that PetroSaudi International’s investment was not in the form of cash, or at least 50 per cent cash, but only in the form of “assets” which turned out to be nothing of that sort. “The Board’s request that these ‘assets’ be first checked was not complied with,” charged the Sarawak Report in its email. “None of the Board’s demands were met by the top management at the company.” -- FMT"
"Bar demands Khairuddin, Chang be released Joseph Francis joseph@asklegal.my Detention of an accused person subsequent to charge pending the prosecution’s transfer application is unjust and unlawful. NEWS UPDATE The conduct of the authorities in the cases of sacked Umno Batu Kawan deputy divisional chief Khairuddin Abu Hassan and his lawyer, Matthias Chang, leaves much to be desired, said Malaysian Bar Council President Steven Thiru. “The misuse of Sosma and criminal procedures for the purposes of alleged Penal Code offences is unacceptable.” “The Malaysian Bar demands that the rule of law be respected, and urges that the prosecution against both men be withdrawn and they be released forthwith.” The Malaysian Bar Council President was deploring the ""misuse"" of the Penal Code and the Security Offences (Special Measures) Act 2012 (Sosma) by the authorities in the recent arrest, detention and prosecution of Khairuddin and Chang, a Member of the Malaysian Bar. It is inexplicable that both men were charged in the Magistrates’ Court, said Thiru. “Further, it is disconcerting that the prosecution then sought a further period of detention of 30 days pending an application to transfer their cases to the High Court. The Magistrate allowed a detention of 14 days.” Detention of an accused person subsequent to charge pending the prosecution’s transfer application is unjust and unlawful, he added. “In this case, it appears to be an undisguised attempt to detain both men for an additional period not sanctioned by law.’ In any event, he continued, it’s perplexing that the prosecution would see this case as involving a security offence. “Part VIA of the Penal Code was introduced to combat security offences arising out of acts of terrorism,” said Thiru. “An action to expose possible corruption within the corridors of government cannot, by any stretch of the imagination, fall under Part VIA of the Penal Code, and neither is it a security offence under international law.” The international law element cannot be ignored, warned the Bar Council President. “Malaysia has signed the United Nations Convention against Corruption.” “It therefore recognises that international cooperation is necessary in combating corruption, terrorism and other international crimes. It has also launched numerous national initiatives calling on individuals to partner in the effort to end corruption.” As such, said Thiru, it beggars belief that when a person exercises his own personal initiative to ask overseas law enforcement agencies to investigate possible corrupt practices at the highest levels of the government, it is seen by the authorities as an attempt to sabotage the banking and financial system of Malaysia. In this borderless world, transboundary corruption is a major scourge that requires global partnership and worldwide efforts, said Thiru. “Malaysia regularly asks law enforcement agencies from foreign countries for assistance. Here is a case of a Malaysian citizen seeking help — from law enforcement agencies in foreign countries — to address alleged cross-border corruption. Some of the parties allegedly involved in this nefarious web of transactions operate in the jurisdictions in which reports were lodged.” Apparently, the charge against Chang attracts additional opprobrium because he has consistently stated that his actions were in his capacity as an advocate and solicitor advising his client. “His arrest, detention and prosecution are therefore in clear violation of the United Nations Basic Principles on the Role of Lawyers, which mandates that lawyers not be identified with their clients or their clients’ causes simply by the act of representing them,” said Thiru. “It would appear that the chilling effect sought to be achieved by the authorities is to discourage lawyers from acting for known critics of the government.” The Bar Council believes the decision to charge both men on the eve of Khairuddin’s habeas corpus application (and before Chang’s intended habeas corpus application) could easily be construed as an attempt to avoid judicial scrutiny into the merits of the cases against them. “It would appear that the prosecution was sufficiently concerned that the habeas corpus applications would be allowed by the court, such that it took steps to pre-empt them.” It’s not known whether Bank Negara filed any affidavit in Khairuddin’s habeas corpus application confirming that the purported conduct by him (and Chang) was indeed an attempt to sabotage the banking and financial system of Malaysia. Khairuddin and Chang were arrested and detained under Sosma on 18 September 2015 and 8 October 2015, respectively. It was reported that they were being investigated under section 124K (sabotage) and section 124L (attempt to commit sabotage) of the Penal Code. Khairuddin filed a habeas corpus application, which was fixed for hearing on 13 October 2015. It was reported that Chang was about to file a habeas corpus application as well. Both men were charged on 12 October 2015 in the Magistrates’ Court, for the offence of attempting to commit sabotage under section 124L of the Penal Code. It has been alleged that the act of sabotage was in relation to the lodging of reports about possible corrupt practices, with law enforcement agencies in five foreign countries — France, the United Kingdom, Switzerland, Hong Kong and Singapore — that was purportedly intended to be a conspiracy to cause harm to the banking and financial system of Malaysia. If convicted, they could be sentenced for up to 15 years in jail. Both men have applied to the High Court to challenge the prosecution against them. Section 124L of the Penal Code is within Part VI of the Penal Code. Under Sosma, all offences under Part VI and Part VIA of the Penal Code are considered security offences, triable in the High Court."
"Zakaria: No turning back on ‘high profile’ case Joe Fernandez There should be an independent panel to vet the investigation papers by MACC on the “high profile” case before being forwarded to the Attorney General. KUALA LUMPUR: MACC deputy commissioner (management and professionalism) Zakaria Jaafar explained during a farewell speech, in conjunction with his last day at work after 33 years, 2 months and 11 days in service, that it was sheer coincidence that the anti-graft body was investigating a “high-profile” personality on wrongdoing just as he was about to retire. “Based on our tradition, investigations must continue even though witnesses may be missing and there are attempts to hide them. This case has gone international.” “In the Perwaja case, although there were agencies which closed the case, MACC continued with its efforts even to the extent of going overseas in search of evidence and proof.” Delving into details, he said that MACC was investigating SRC International, a wholly Ministry of Finance (MoF) owned subsidiary formerly under 1MDB, and a case involving a RM2.6 billion political donation, “ I am confident that MACC officers will ensure that these cases are watertight and as complete as possible,” said Zakaria. “We don’t want to see a situation where those who have to vet our investigation papers find a reason or excuse not to accept our recommendations.” “In my 30-odd years with MACC, I know that the process of proving a case is not easy. Our case must be strong enough to bring to Court.” The current high-profile investigation in particular, he reminded, will be a test in the people’s eyes of the extent to which MACC was free, transparent and professional. “We have already activated our policy of being closer to the people.” “We have seen of late that the people have increased confidence in us. They understand the functions and roles of MACC as an anti-graft body.” Zakaria expressed the hope that MACC officers will continue to be firm and professional in bringing this particular “high-profile” case to a closure. “This is important so that the people will continue to support MACC as an anti-graft body.” He warned against allowing MACC’s position as a free, transparent and professional body to be compromised by anyone with an ulterior motive. “Keep the recent call by the Conference of Rulers in mind. In fact, in line with the call by the Rulers, there should be an independent panel to vet the investigation papers by MACC on this particular ‘high profile’ case before being forwarded to the Attorney General.” He urged that no stone be left unturned in completing the case. “Don’t give excuses to any quarter to reject the case. The papers on the high-profile case which MACC is working on must not be submitted without the testimony of the three witnesses which we are seeking. We have the ability, as seen from the Perwaja and Polimer cases, to obtain such testimony overseas.” He added that in forwarding investigation papers to the Attorney General, who decides whether there’s merit on prosecution, it’s important for MACC to state clearly whether there was a case or otherwise. “If there’s a case, state it clearly. This is important because the investigation papers can be referred to by our children and grandchildren one day, and the children and grandchildren of those investigated.” “They should know whether we have carried out our duties as entrusted to us.” It’s not easy to get a conviction, conceded Zakaria, but history as shown that as in the case with Perwaja, perseverance pays. “I was involved in the Perwaja case myself, investigating for eight long years, and finally we succeeded. MACC never gives up hope.” – FMT"
"Does the AG 'violate' the Doctrine of Separation of Powers? (Image credit: Malaysiakini)Joseph Francis joseph@asklegal.my The AG seems to be Superman himself when it comes to prerogative and discretionary powers. COMMENT Questions are being raised on the office of the Attorney General ever since Abdul Gani Patail?s sacking in late July and the immediate drafting in of Mohd Apandi Ali as his successor. Apandi Ali may turn out to be an even more controversial person considering that he disbanded, according to a Malaysian Anti Corruption Commission (MACC) statement, the special Task Force on the 1MDB Scandal and a controversial RM2.6 billion ?donation? in Prime Minister Najib Abdul Razak?s personal banking accounts before the last General Election in 2013. The latest is Apandi Ali returning a case file on 1MDB to Bank Negara. The central bank?s appeal that action be taken was turned down on the grounds that it did not present any new evidence. In retaliation, Bank Negara informed 1MDB that it was revoking three permissions earlier granted to the company and directed it to bring back USD1.83 billion it?s supposed to have overseas, The permissions, the central bank disclosed in a statement on Oct 9, were obtained by the company by providing inaccurate or incomplete disclosure of material information. That was the central bank?s way of getting around the AG?s apparent refusal to prosecute 1MDB officials on the matter. Does the Constitution, allowing the AG to decide whether to prosecute or otherwise, mean that he has unfettered powers? Can he decide not to proceed with a case even when there?s evidence which can stand up in Court? Prerogative and discretionary powers, it?s said, are not absolute if abuse can be proven. In fact, there?s case law by Raja Azlan Shah on prerogative and discretionary powers not being unfettered. In short, if one were to look into the context of the Federal Constitution, the AG seems to be Superman himself when it comes to prerogative and discretionary powers. One section in the Penal Code, under which both Anwar Ibrahim and Chua Soi Lek were investigated, states: ""Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.""Yet, Anwar was dragged to the High Court to be charged while the other went on to claim the throne of MCA. Former Prime Minister Mahathir Mohamad has questions in his latest blog posting with reference to the AG sending the case file back to Bank Negara: Is this the rule of law that this country is supposed to uphold? Is the AG higher than a judge that his judgment is final and there can be no appeal? In this particular case, added Mahathir, the people would like to know whether the Prime Minister was involved or otherwise. ?By dismissing this case, suspicions will remain in the minds of the people. In fact, people are thinking that the decision of the AG may not be by him.? Mahathir was commenting on the statement by the Attorney General?s Chambers (AGC) stating that it has cleared 1MDB of any wrongdoings with regard to the use of the funds approved by Bank Negara for foreign investments. ?Bank Negara was obviously not satisfied and appealed to the AG without any change in the report. Again, the AG rejected the appeal.? The former Prime Minister conceded that the AG was empowered (under the Constitution) to decide whether a case should go to court or otherwise. ?However, the presumption was that the AG would appreciate and understand the seriousness or otherwise of the case before him, that he would appreciate the concern of the complainant or agency making the report.? If there?s dissatisfaction, the case should be judged in a court of law by a judge and if still dissatisfied, an appeal be allowed. The Federal Court has stated in at least one case that the AG must take into account the facts of the case and the public interest. That was in the case of Dato Seri Anwar v PP (2002) 3 MLJ 193 at p.208. An elected government would -- be only too anxious to act ? in the public interest by appointing ? one who would safeguard the public interest -- Tan Sri Abdul Kadir Yusuf, the Office of the Attorney General, Malaysia (1977) 2 MLJ xvi. Our system requires the public to trust the impartiality and fairness of the AG, according to Salleh Abbas in the Government of Malaysia v Lim Kit Siang (1988) 2 MLJ 12. It?s very dangerous to allege double standards against the AG. According to the Court of Appeal in Lim Guan Eng v PP (1988) 3 MLJ 14, it will undermine the administration of criminal justice and this will amount to sedition. According to senior lawyer Tommy Thomas, in a piece penned for the Malaysian Bar Council website some years back, the power of the AG makes ?nonsense? of the Doctrine of Separation of Powers. Power corrupts and absolute power corrupts absolutely. ?Not content with this great power and influence, the AG even desired to regulate the legal profession by giving himself the power to retrospectively modify rules of practice and etiquette which the Bar Council have over the years formulated to govern the legal practice in Malaysia,? recalled Thomas."
"Legal jargon made simple Image credit: latintutor.netHow often have we read legal terms and wondered what they meant? Well, fear no more, here is a list of legal terms and a layman?s explanation of their meaning.Ab initio: from the beginningActus reus: the guilty act, a factor that is needed for criminal liabilityAd valorem: according to value, example, tax which is ad valoremAdjournment sine die: adjourned without a date setAmicus curiae: a friend of the court, a person who is not party or professional witness to the case, that assists the court with informationBona fide: in good faithCaveat emptor: let the buyer bewareEx facie: on the face of itEx parte: by one party, means a case that is heard or a decision given without the presence of the other partyIn camera: a hearing or proceeding that is conducted in private without the presence of the publicIn futuro: in the futureInter alia: amongst othersLocus standi: the right to appear and be heard by the courtMala fide: bad faithMandamus: an order by the court ordering related officials to perform some administrative dutyMens rea: guilty mind, one of the requirements for a crime to be committedQuantum meruit: meaning ""what one has earned"". In the context of contract law, it means something along the lines of ""reasonable value of services rendered""Ratio decidendi: reason for the decision, the reason as to why the court decidedRes judicata: a matter that has been finally decided by the court and cannot be adjudicated againStare decisis: judicial precedent, where courts are generally bound by the prior decision of other courtsSub judice: under judicial consideration by the court and therefore prohibited from public discussion elsewhereOkay ? now that you are armed with a decent vocabulary of Latin legal terms. Go out and impress! If not, just confuse ... that works too."
"There are precedents for no confidence motion Joseph Francis joseph@asklegal.my In 1976, Prime Minister Hussein Onn faced a no confidence motion in Parliament while Prime Minister Abdullah Ahmad Badawi faced the prospect of one in 2008. PARLIAMENT In the wake of the crisis of confidence that Prime Minister Najib Abdul Razak was currently facing, Parliament Speaker Pandikar Amin Mulia had gone public with a statement that the Standing Orders of the August House does not state that an MP may propose a no confidence motion against the Prime Minister. ?By reviewing two of the no confidence motions that occurred in the history of the Parliament of Malaysia, it shows that Pandikar?s statement can be contested,? said Kajian Politik Untuk Perubahan Executive Director Ooi Heng. Ooi was referring to a motion regarding the new Prime Minister, Hussein Onn, which was debated and passed in 1976; and a no confidence motion proposed by Opposition Parliamentary Leader Wan Azizah Wan Ismail in 2008 against then Prime Minister Abdullah Ahmad Badawi. The motion against Badawi read: ?We are proposing a motion of no confidence against Prime Minister Abdullah Ahmad Badawi, because the way he and his Cabinet Ministers handled the national executive tasks, had caused the people to lose confidence in the integrity of the government.? The motion had no chance to get into the Dewan Rakyat as it was vetoed in the Speaker?s office under section 18(7) of the Standing Orders, on the grounds that the bill stated that a vote was to be taken on the no confidence motion but the provisions it was filed under was to seek ?negotiation?, recalled Ooi. In 1976, a motion regarding the new Prime Minister Hussein Onn was debated and passed. ?This was the first confidence motion for a Prime Minister in the history of the Malaysian Parliament,? said Ooi. ?It was not the Prime Minister himself who proposed the motion but Wan Ibrahim, a Barisan Nasional (BN) Senator.? ?Hussein Onn decided to stress the legitimacy of his premiership through the motion of confidence, and that was a wise move.? The summary of the motion on Hussein Onn read: ?The Dewan congratulates Hussein Onn for being appointed by the Agong as the 3rd Prime Minister of Malaysia, and gives him full support and cooperation for him to fulfill his great responsibility as Prime Minister.? The motion was successfully brought to Parliament under sections 13(1), 25, and 26 of the Standing Orders, and was passed with four absentees. Twenty MPs participated in the debate. Likewise, said Ooi, under sections 27(3) and 45(1) of the Standing Orders, it?s still possible to table a motion of no confidence against Prime Minister Najib. ?Standing Order 27(3) states that, ?except as provided in Standing Order 43 and in paragraph (5) of Standing Order 86 and 26(1), not less than 14 days? notice of any motion shall be given unless it is in the name of a Minister, in which case seven days? notice or, if the Tuan Yang DiPertua is satisfied upon representation to him by a Minister that the public interest requires that a motion should be debated as soon as possible, one day?s notice shall be sufficient.? And a resolution thereof, said Ooi, is provided under the Standing Order 45(1) which states that ?subject to the provisions of Clause (1) of Article 89 of the Constitution and Clause (3) of Article 159 of the Constitution and these Orders, the House shall, in accordance with the provisions of Clause (3) of Article 62 of the Constitution take its decision by a simple majority of members voting.? The Tuan Yang DiPertua or any other person presiding shall cast his vote whenever necessary to avoid an equality of votes, but shall not vote in any other case provided that where the Tuan Yang DiPertua is a member of the House by virtue only of paragraph (b) of Clause (1A) of Article 57 of the Constitution, ?he shall have no casting vote in the House or in any Committee thereof?."
"Detention under SOSMA Photo credit: Huffington PostFor today, we shall just focus on the provisions for detention under Security Offences (Special Measures) Act 2012 (SOSMA), as set out in sections 4 (1), 4 (4) and 4 (5) and compare it with provisions of the Criminal Procedure Code (CPC). Section 4 (4) SOSMA provides for the ?standard? police detention of 24 hours for the purpose of investigation. This is pretty similar to what is seen in the CPC. Something most of us are aware of. However, SOSMA allows for a further detention and this is a bone of contention with most of its opponents. So what is this further detention all about? Let?s have a look. Section 4 (5) of SOSMA reads ?? a police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than twenty eight days, for the purpose of investigation.? So now you only need for a police officer of or above the rank of a Superintendent of Police to say you need to be further detained and off you go for another 28 days. In comparison, Section 28 of the CPC empowers the police to only detain an individual for no more than 24 hours in order to assist with investigations and may further remand them for a maximum of 14 days with a Magistrate?s order, Section 117 of the CPC. After the 14 days remand, the police either releases or charges the individual. So we see that under SOSMA a person can be detained without trial for up to an initial period of 29 days. The detention is at the discretion of the police. How does the police exercise this discretion? Section 4 (5) of SOSMA does not seem to state anything about it. Section 117 (1) of the CPC reads: Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 28 and there are grounds for believing that the accusation or information is well founded the police officer making the investigation shall immediately transmit to a Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the accused before the Magistrate. With Section 117 of the CPC there are safeguards for the individual arrested. The police need to ensure ?there are grounds for believing that the accusation or information is well founded? and then ?transmit to a Magistrate a copy of the entries in the diary?. The Magistrate performs a judicial function when considering the application for remand. It is not administrative in nature. Magistrates have on many instances rejected the application for remand by the police. These safeguards are not present under SOSMA. Now coming to the 28 days remand under SOSMA, it is also unclear if Section 4 (5) allows for the 28 days detention to be renewed indefinitely. It must be said that Section 4 (5) of SOSMA is vague, does it then allow for the courts to apply the principles of a Magistrate?s remand or will it be said that, SOSMA places the power to detain, solely, in the hands of the police? Where is the check and balance? Who will police the police?"
"No easy path to Shariah in modern nation state (Image credit: Malay Mail Online)Joseph Francis joseph@asklegal.my The Public Forum on ?Understanding Shariah from the Religious and Rights Perspectives? discussed the role of Shariah in a modern nation state and its impact on society and politics. PUBLIC FORUM Human rights lawyer Aston Paiva (pix above) began with a quote from Lord President Mohamed Suffian in ?Parliamentary System versus Presidential System ? The Malaysian Experience? [1979] 2 MLJ 1ii at 1xv at the late Sept ?Peace Symposium 2015: Understanding Shariah from the Religious & Rights Perspectives? in Kuala Lumpur. ?Some religious fanatics talk of bringing in a Muslim system of government, but the many Muslim countries of the world themselves practise a wide variety of governmental systems, and it?s unrealistic to imagine that a system of government suitable for conditions in the desert five or six centuries ago would be suitable for a country with daily rain, with rivers, grass and trees and of whose population some 45 per cent are non-Muslim.? The Supreme Court of Pakistan in SMC No 1 of 2014 (48) keeps the debate in perspective: ?The spirit of pluralism reflected in the Holy Quran constantly points out that Muhammad had not come to cancel the older religions, to contradict their prophets or to start a new faith.? ?To the contrary, his message is the same as that of Abraham, Moses, David, Solomon or Jesus. The cherished goal of creating a more pluralistic society where fundamental rights are respected would continue to elude us unless we realise that we are living in a world of globalised interdependence, a world of connectivity, of cyber space, of shrunken distances, of cross border migration, and a world of rapidly changing cultural identities.? Against this, said Paiva, legal and constitutional changes seem to have come to a head in 2001 when then Prime Minister Mahathir Mohamad declared that Malaysia was an Islamic state. ?Perhaps the craftiest of measures is a cosmetic constitutional amendment in 1976 which substituted, the expression ?Muslim?, ?Muslim religion? and ?Muslim Court? wherever it appears in the Constitution, with the word ?Islamic?, ?religion of Islam? and ?Syariah Court? respectively,? said Paiva. ?This is the first time the word ?Syariah? appears in our Constitution. A similar semantic shift soon appeared in Federal and State laws.? He cites Professor Tamir Moustafa arguing that ?just as nationalism requires a collective forgetting of the historical record in order to embrace a sense of nation, so too does Shariah court authority require a collective amnesia vis a vis the Islamic legal tradition.? ?This semantic shift was likely an effort to endow Muslim family law and Muslim courts with a religious personality in order to brandish the government?s religious credentials.? During Mahathir 22 years in power, said Paiva, the religious bureaucracy expanded at an unprecedented rate, and aspects of Islamic law were institutionalised to an extent that would have been unimaginable in the pre-colonial era. The prognosis however is not good for Islamisation, for want of a better term. Article 3(4) of the Federal Constitution clearly states: ?Nothing in this Article ? Religion of the Federation -- derogates from any other provisions of this Constitution.? Article 4(1) declares the Constitution to be the supreme law of the Federation while Articles 5 to 13 (Part II) guarantees several fundamental liberties. Professor R. H. Hickling added to this: ?? as a general proposition Muslim law cannot be regarded as ?the law of the land?. Islam is indeed the religion of the Federation, just as the protestant Church is the established Church of England: but in each case, the state is a secular state, and it is wise to keep religion out of law (as well as out of politics) for the two mix ill.? Under our Constitution, points out Paiva, the expression ?law? whenever used ?includes written law, the common law (of England) ?and any custom or usage having the force of law?. ?Thus, Syariah is not part of what constitutes ?law? under the present constitutional and legal framework of Malaysia. And had it been so, there would be no need for the Constitution to expressly confer legislative powers on the State Legislatures to enact written laws relating to the Muslim religion.? All this goes to show, stressed Paiva, that in Malaysia it is democracy and theocracy that prevails. ?It?s a fallacy that laws in the Syariah Court in Malaysia are rooted in the Quran. All laws, including state-enacted Islamic laws, are enacted by a secular institution, after deliberation by elected persons who vary in religion and ethnicity.?In summing up, the Supreme Court in Che Omar bin Che Soh was unequivocal in its pronouncements: ?The standard of justice naturally varies from individual to individual, but the only yardstick that the court will have to accept, apart from our personal feelings, is the law that was legislated by Parliament.? ?We have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law.?"
"Getting Intimate With SOSMA Picture credit: games.yahoo.comWith the recent arrest of Khairuddin Abu Hassan under Security Offences (Special Measures) Act 2012 (SOSMA) many have stated that this heralds the return of ISA. However, we need to look at what SOSMA really is. How does it work? What are the implications of SOSMA? In fact SOSMA is solely a piece of legislation that deals with security offences, as outlined in the Penal Code. Interesting no? Section 3 of SOSMA states that ?security offences means? the offences specified in the First Schedule. The First Schedule of SOSMA lists security offences as offences under Chapters VI (offences against the state) and VIA (offences relating to terrorism) of our Penal Code. So there you go, you do not commit an offence under SOSMA. When invoked, SOSMA provides for matters relating to arrest, detention, protection of informers, matters pertaining to the law of evidence, special procedures relating to sensitive information & protected witnesses amongst others. Here are just a few sections from Chapters VI and VIA of the Penal Code: Section 124B ? Whoever, by any means, directly or indirectly, commits an activity detrimental to parliamentary democracy shall be punished with imprisonment for a term which may extend to twenty years. Section 124L ? Whoever, by any means, directly or indirectly, commits sabotage shall be punished with imprisonment for life. Section 130E ? Whoever knowingly recruits, or agrees to recruit, another person to be a member of a terrorist group or to participate in the commission of a terrorist act shall be punished with imprisonment for a term which may extend to thirty years, and shall also be liable to fine. Section 130KA ? Whoever is a member of a terrorist group shall be punished with imprisonment which may extend to imprisonment for life and shall also be liable to a fine. So this clears up the air for now. In the next article we will look into the detention of a person under SOSMA."
"Sabah, S'wak MPs not genuine on Full Autonomy status Joseph Francis joseph@asklegal.myThe politicians in Sabah and Sarawak are not genuine on the rights issues and the return of Full Autonomy and only use them when they feel threatened. Image credit: The Borneo Post NEWS ANALYSIS Universiti Kebangsaan Associate Professor Faisal Hazis thinks that with 57 MPs in Parliament and the peninsula politically split down the middle, Sabah and Sarawak have a window of opportunity, a unique position, to tell the Federal Government in Putrajaya: ""If you want our 57 seats in the Malaysian Parliament to support you, listen to us!"" ""This is a very unique window of opportunity and they should seize it.""Faisal does not think that politicians in Sabah and Sarawak are genuine on the 20 Points, 18 Points and other constitutional documents on Malaysia including the Malaysia Agreement 1963, the rights issue, secession and the return of Full Autonomy. ""The local politicians only use these issues whenever they feel threatened. They use these issues as a tool to retain political power,"" said Faisal. ""We need to understand this as well.""The old political system based on Sabah and Sarawak maintaining Malay and Muslim political dominance at the insistence of the Federal Government, delivering the parliamentary seats to Putrajaya and allowing the extraction of local resources by the Federal Government, can no longer work. ""The new system must be based on a decentralized Federal system, inclusive politics, and state and national interests based on the Federal Constitution and the Spirit of 1963."" Faisal was delivering a talk, ""Federal-State Relations from the political Perspective"", at the Malaysia Federalism and the Way Forward closed door discussion in Kota Kinabalu over the weekend. The discussion was organised by the Society for Empowerment and Economic Development Sabah (Seed), a think tank.He sounded a note of warning in stressing that the ongoing ""talks"" between the Governments of Malaysia, Sabah and Sarawak for the return of Full Autonomy to the two Borneo nations, the status they had before 16 Sept 1963, had to go together with structural reforms. These reforms, he added, must mean that democratic institutions must be strengthened. ""The Judiciary must be independent and the media free as part of the checks and balances on the local elites and the Election Commission must be empowered."" ""The civil society should be the 3rd Force as political parties become increasingly hopeless. Government policies should be inclusive to ensure that race and religion are cast aside in politics,"" said Faizal.Faisal argued that inclusive politics must be something that Sabah and Sarawak should export to the peninsula and not import the polarization from there. ""The Barisan Nasional's (BN) version of racially-based politics is insular. Sabah and Sarawak can have an impact on the peninsula by rejecting the BN version of politics."" ""The Borneo nations should take a bold step and help make a difference for the better in national politics. There's a need for statesmen and not politicians.""In the absence of structural reforms, he explained, the return of Full Autonomy would mean that local strongmen like the late Mustapha Harun in Sabah and Taib Mahmud in Sarawak, presently Governor, would politicize development and fortify their positions at the expense of the people. ""Part of the problem in Sabah and Sarawak is the doing of local politicians and not the Federal Government,"" he said. ""These greedy politicians imported illegal immigrants and arranged blue ICs for them, without citizenships, to become voters."" ""Obviously, they wanted to impress their political masters in Putrajaya.""Another example he cited was Islam being made the official religion of Sabah by Mustapha in defiance of the various constitutional documents on Malaysia, with a Basic Features Doctrine implied, which clearly stated that the two Borneo nations would have no religion. ""No one can amend the basis for Sabah and Sarawak to be in Federation with Malaya."" A third example Faisal cited was the Petroleum Act 1974 being bulldozed through in Parliament by Taib himself as Federal Minister of Mineral Resources although Abdul Rahman Ya'kub, his maternal uncle and Chief Minister of Sarawak, and Sabah Chief Minister Mustapha Harun were reluctant. Taib eventually replaced his uncle as Chief Minister in 1981 with Federal Government support and the consent of the former after a rebellion against Rahman by the Sarawak United People's Party (Supp) and the Chinese."
"Amnesty International has concerns on M'sia Joseph FrancisThe international body urges Putrajaya to bring up various laws to international stands.NEWS Amnesty International (AI) has urged Putrajaya, Prime Minister Najib Abdul Razak in particular, in an Open Letter to take steps towards immediately repealing the draconian 1948 Sedition Act introduced by the British to circumvent the Constitution and strip the right to free speech.It also urged the government of Malaysia to immediately quash the convictions of individuals who have been sentenced under the Act and unconditionally release all those who have been detained under it; and furthermore, pending the repeal of the Sedition Act, ensure that no one was arrested, investigated, charged or imprisoned under its provision.AI also expressed several other concerns: ensure prompt independent, impartial and effective investigations into all allegations of torture and other ill-treatment by police and bring those engaged in such heinous acts to justice through trials that meet international standards of fairness, and where the death penalty was not imposed; and ensure that victims are granted reparations. Two other areas of concern expressed by AI include reviewing and amending, in strict compliance with international human rights law and standards, all other laws which restrict the right to freedom of expression; ratify the International Covenant on Civil and Political Rights at the earliest opportunity, incorporating its provisions in domestic law, and implementing it in policy and practice.?We express our sincere hope and confidence that you will consider and support these recommendations,"" said AI Secretary General Salil Shetty who signed the Open Letter to Najib. Salil disclosed the contents of the Open Letter on the sidelines of the just-concluded 16th International Anti Corruption Conference (IACC) in Putrajaya from Wed to Fri. About 1,000 delegates from 130 countries attended but Najib was advised by Minister in the Prime Minister's Department, Paul Low, not to officiate at the opening or closing ceremonies lest he face ?a hostile reception and many questions on unresolved the RM42 billion 1MDB and RM2.6 billion scandals"".Salil was in Putrajaya not only to attend the 16th IACC, and get feedback on the Open Letter, but meet Opposition Parliamentary Leader Wan Azizah on the fate of jailed Opposition Chief Anwar Ibrahim who was incarcerated on February 10 this year for five years for a victimless offence, in the words of the Bar Council. Anwar has been adopted by AI as a ?Prisoner of Conscience"" and thereby qualifies to serve his sentence under house and/or hospitalization when required.The NGO finds it ironic, in the wake of Bersih 4, that Malaysia hosted the 16th IACC to add to two other ironies, namely the country's chair of Asean for a two-year term and it securing a non-permanent seat in the United Nations Security Council for two years.?There's an obvious irony to the fact that Malaysia is hosting an anti-corruption conference at a time when there are so many questions over high-level corruption in the country itself,"" said Salil. ?We welcome however the fact that the authorities exercised greater restraint this time with the Bersih 4 rallies compared with the previous street protests staged by Bersih 2.0 and others.""The Sedition Act, resumed Salil, does not comply with international human rights law and standards, and violates the rights to freedom of expression as guaranteed in the Federal Constitution. ?The restrictions on the right to freedom of expression in the Sedition Act are phrased in an excessively broad and vague manner, potentially resulting in both an overreach of the law and a discriminatory application of the law.""In fact, the formulation ?with a tendency to excite disaffection against any Ruler or government"", he added, already sets a very low threshold for the type of criticism of officials. ?Such criticism should not be criminalized at all.""The AI Open Letter also touches on 251 deaths since 2000 in police custody, allegations of ill-treatment and torture by the police amidst reports that at least 44 people have been investigated, charged or convicted under the Sedition Act, raises the plight of 16 people currently facing charges under the Act; reviews the cases of several individuals, and makes recommendations for the country to meet international standards in human rights and the application of law.The Open Letter reviews the cases of three student activists, Safwan Anang, Adam Adli Abd Halim, and Ali Abdul Jalil; academician Azmi Sharom; and lawyer and MP N. Surendran."
"UN Sec-Gen cautious, optimistic on way forward Joseph Francisjoseph@asklegal.myHe wants to help preserve the space for civil society and the press to do their vital work without fear of attack and imprisonment.Image credit: UN PhotoNEWS ANALYSIS UN Secretary-General Ban Ki-moon, in pledging on Mon at the General Assembly that he will present the international community with a comprehensive plan of action to counter violent extremism and terrorism, lauded the recent landmark nuclear agreement between Iran, Germany and the five permanent members of the UN Security Council, and urged that there's a need to build on recent agreements in South Sudan and finalize the agreement with Libya.""Now is also the time for renewed dialogue to address continuing tension on the Korean peninsula,"" said Ban. ""I call on the parties concerned to refrain from taking any action that may increase mistrust, and urge them to instead promote reconciliation and efforts towards a peaceful, denuclearized peninsula.""""I am ready to support inter-Korean co-operation.""Amidst this picture of hope and promise, he was deeply troubled by growing restrictions on media and civil society across the world. ""It's not a crime for journalists, human rights defenders and others to exercise their basic rights.""""We must preserve the space for civil society and the press to do their vital work without fear of attack and imprisonment.""The prognosis could be better for civil society and the media, he noted, and with good reasons too. Democratic backsliding had taken place in too many places as leaders seek to stay in office beyond their mandated limits. ""We see rallies and petitions being engineered to look like the spontaneous will of the people,"" lamented Ban. ""These manufactured groundswells of support only lay the ground for instability.""He urged leaders around the globe to abide by the constitutional limits on their terms. ""Collectively, these crises have stretched to the limits our vital tools for conflict resolution and humanitarian response.""Earlier in the month, Ban put forward his vision for strengthening UN peace keeping operations, building on the recommendations of an independent panel. It was clear that the peacekeeping and political missions need enhanced capabilities and clear objectives.He explained that there was a need for renewed commitment on prevention, and stronger regional partnerships and sustained engagement on peace building.The United Nations, founded in a fractured world, brought hope that collective action could help avoid another global catastrophe. ""Over the past 70 years, we have helped to liberate millions from colonialism and supported the successful struggle against apartheid,"" said Ban. ""We have defeated deadly diseases, defended human rights and deepened the rule of law.""The reform agenda of the United Nations continues.*Cover image credit: UN Photo"
"PRO-BONO LEGAL AND MEDIATON SERVICE AT UNIVERSITI KEBANGSAAN MALAYSIA. Klinik Bantuan Guaman Dan Mediasi UKM ? UNIKEB(KBGM UKM-UNIKEB) was initially known as Klinik Bantuan Guaman UKM ?UNIKEB (KBG UKM-UNIKEB). It was founded by Siti Naaishah Hambali a Principal fellow at the Law Faculty of UKM and presently serving as the Director of the clinic. The date of 22nd June of 2011 has recorded an important history to Faculty of Law (UKM) for the establishment of the first Legal Aid Clinic as part of Corporate Social Responsibility towards the community. KBG UKM-UNIKEB was established with the main objective of providing pro-bono confidential legal advise to the public especially members of the local community living within the vicinity of Bandar Baru Bangi, Kajang, Putrajaya and Semenyeh. However presently it is being visited by clients from the nearby states including Negeri Sembilan and Melaka. The number of clients visiting KBGM UKM-UNIKEB has increased steadily where it has grownfrom 69in 2011 to 445as of September 2015.KBGM UKM-UNIKEB aims to offer reliable services to the people who have problems with the law and the relevant. Knowing the importance of practical experience in law graduates of UKM, this program is also aims to train students to integrate theory they have learned in class to be applied in dealing with actual cases. Students at the University have the opportunity to take part in hands-on legal work for the benefit of the wider community, i.e. members of the public, University staff and students. Soon after its establishment KBG UKM-UNIKEB has received recognition from Malaysian Bar Council as a reliable legal aid centre to be used asa training centre forits chambering students. Until now we had received and trained about 120 chambering students.KBG UKM-UNIKEB is managed by a Director who is also an adviser to students in the conduct of the Legal Aid Clinic. It comes with the support of local lawyers, the highest academic and administrative staff of the University.The date of 22nd June of 2014 has recorded another history to KBG UKM-UNIKEB where it has officially extended is pro-bono service to mediation and its official name was changed to Klinik Bantuan Guaman Dan Mediasi UKM-UNIKEB (KBGM UKM-UNIKEB).KBGM UKM-UNIKEB has 16 qualified professional Mediators who voluntarily offer pro-bono mediation services to the public who qualified for such service. KBGM UKM-UNIKEB provides free mediation, to those who are involved in neighbourhood and community disputes.Community Mediation Services can assist with resolving disputes in many ways, including by providing information about positive and constructive alternatives to the Legal system; encouraging people to explore options together to reach a mutually acceptable agreement; and conducting negotiations with the other party.Areas of mediation assistance include disputes relating to animal behaviour, clubs and associations,community groups, encroachment, landlord and tenant, nuisance, property damage, family disputes, and environment. We are located at:Klinik Bantuan Guaman Dan MediasiTingkat 3 WISMA UNIKEB43600 UKM Bangi SelangorTelephone number : 03-89214919By:Distinguish Fellow Siti Naaishah HambaliFaculty of Law, UKM"
"US Federal Grand Jury shocker for embattled Prime Minister Joseph Francisjoseph@asklegal.myMalaysian politics would never be the same again after the seizure of ill-gotten assets salted away overseas by those in the corridors of power.NEWS ANALYSIS The rumours had been floating around for quite some time that the film, The Wolf of Wall Street, was financed by funds that originated from the 1Malaysia Development Berhad (1MDB), owned by the Ministry of Finance (MoF) and touted as a strategic investment and development arm. Riza Aziz, Prime Minister Najib Abdul Razak's stepson and his wife Rosmah Mansor's son, reportedly financed the film.Briefly, other media reports had Riza and his friend Jho Low from Penang snapping up multimillion dollar properties in the US and in the case of the latter, living a flamboyant lifestyle partying with the likes of celebrity Paris Hilton. Jho Low, who holds two US passports, seemed to have smelled a rat in recent months and fled from his Hong Kong base to Taiwan from where, it's said, he can't be extradited to the US. Riza may be living in the US and, unlike Jho Low, may not be a US citizen.The New York Times (NYT) reported on Monday that a US Federal Grand Jury was examining allegations of corruption involving the Prime Minister and people linked to him on the matter. The Inquiry would be run by a unit of the Justice Department that investigates international corruption under the Kleptocracy Asset Recovery Initiative launched by the US Attorney General in 2010 under the Foreign Corrupt Practices Act (FCPA) 1997. It relies on the use of US civil forfeiture actions to recover the proceeds of foreign official corruption that pass through the US.One Oxford definition of kleptocrat is ""A ruler who uses his power to steal his country's resources"". The online dictionary.com defines a kleptocrat as ""a government official who is a thief or exploiter"". Leslie Caldwell, the Assistant Attorney-General who heads the Department of Justice's (DOJ) Criminal Division Team of nearly 600 lawyers, has explained in the media on why the DOJ was involved in fighting kleptocrats. ""More simply, it simply means taking the monies and assets stolen by foreign despots and returning them to the people harmed. The initiative protects the integrity of the US financial system from use by corrupt officials, and denies corrupt officials the ability to enjoy luxuries purchased in the US at the expense of the populations they purport to serve."" Deputy Inspector General of Police Noor Rashid Ibrahim has thrown cold water on the veracity of the NYT report on the grounds that the Malaysian police had not been informed, ""as it would be informed in such cases"". Generally, the US would not inform foreign authorities especially the Malaysian police in this case, if there's a US Federal Grand Jury investigation. The police appear to be more interested in bracing themselves for the possibility that Najib may be placed on Interpol's Red List or Notice. In that case, Najib himself would know about it through the closure of his bank accounts in 188 member nations including China, Iran, Libya and Pakistan.It remains to be seen whether the relevant authorities in Malaysia would respond with at least a statement on the US Federal Grand Jury probe of the Prime Minister. Besides Najib himself, the others who should be responding include The Prime Minister's Office (PMO), Wisma Putra and the Attorney General's Chambers. So far, there has not been even a peep out of even the Ministers who take to their blogs almost on a daily basis to defend Najib. Multimedia and Communication Minister Salleh Said Keruak and Local Government Minister Abdul Rahman Dahlan, both from Sabah, in particular stand out. Rahman Dahlan is also the ruling Barisan Nasional's (BN) Strategic Communication Director."
"Baginda unlikely to be charged, he can sue Joseph Francisjoseph@asklegal.myBaginda cannot hold his head up in public if he does not sue al-Jazeera over the most shocking allegation that it was he and not Sirul Azhar or Azhar Hadri who shot Altantuya Shaariibuu.Image credit: ReutersNEWS ANALYSIS Several questions arise in the wake of the controversial al-Jazeera documentary film, Murder in Malaysia, according to an Adviser to Suaram, the human rights group. Among them, according to Kua Kia Soong, are whether Abdul Razak Baginda the lover of Altantuya Shaariibuu will sue al-Jazeera and whether he's protected by the Double Jeopardy Principle against being charged with killing her. The Mongolian model is the subject of the al-Jazeera film.""If Razak Baginda fails to sue al-Jazeera, he will be condemned to live the rest of his life with this murder allegation hanging over his head,"" said Kua. ""This is a very serious charge indeed and a completely new piece of evidence ? if corroborated by Sirul Azhar, one of the two convicted killers ? which promises to bring us closer to the yet unsolved murder of the Mongolian.""For the moment, said Kua, he cannot see how Razak Baginda can hold his head up in public if he does not try to clear his name by suing al-Jazeera over the most shocking allegation that it was he and not Sirul Azhar or Azhar Hadri who shot Altantuya.""Razak Baginda had only been charged with abetment in the murder of Altantuya. He managed to get himself acquitted on this charge but with this new piece of evidence ? al-Jazeera -- he could face the murder charge itself.""Kua noted that it has been suggested that Razak Baginda was protected by the principle of Double Jeopardy as guaranteed in Article 7(2) of the Federal Constitution against being recharged. Nevertheless, he added, this principle of Double Jeopardy can terminate if it was established that there has been a mistrial apart from the fact that there was now new evidence alleging Razak Baginda's direct involvement in the murder of Altantuya.""Prosecution can be allowed if the mistrial resulted from 'manifest necessity' where a mistrial has resulted from defective indictments or procedural irregularities. I would expect the courts to balance the defendant's interests against society's interest in a fair and just legal system. Retrials in these instances are justified by society's interest in punishing the guilty.""A three-man bench at the Appeal Court, chaired by Mohamad Apandi Ali had said in their judgment, among others, the prosecution's failure to call DSP Musa Safri, a former aide-de-camp of Najib Abdul Razak, had weakened the prosecution's case. ""There was clearly a mistrial at the High Court where the motive for the murder was not obtained,"" said Kua.Among the ""strange"" twists to the Altantuya murder case was the sudden removal of the presiding judge before the trial started without giving a plausible explanation to the lawyers, said Kua, not to mention the head of the prosecution team being changed at the eleventh hour. ""Finally, defence lawyers for the three accused kept changing with one walking out on the first day of hearing, charging that 'third parties' were interfering with his work.""Public doubt, however, worsened after both defence lawyers and prosecutors cut off a witness (Altantuya's cousin) from testifying further when she revealed that the victim had shown her a photograph of herself, Razak Baginda, the then Defence Minister Najib and ""others"" having lunch in a Paris restaurant, said Kua. ""The court too did not ask the witness to produce the photograph.""Nothing short of a full public inquiry into the Altantuya murder and the motive for her murder will do, argues Kua. ""The prosecution of the case has been tardy from the start, with the failure to establish the motive for Altantuya's murder being the most questionable of all.""""Through the case, the laboured attempts by both prosecution and defence to obstruct the probe into any involvement of the then Defence Minister were also most bewildering.""Other bizarre and shocking anomalies during the murder trial included the revelation that the immigration records on Altantuya had been destroyed, said Kua. ""The Immigration Department owes the public an extended explanation on this revelation during the Altantuya murder trial.""Razak Baginda's affidavit in the trial had also maintained that ""Azilah Hadri, the other convicted killer, was responsible for the death of about six or more people and he would be able to help"" the political analyst, noted Kua. ""To date, we have had no adequate response by the Malaysian Police to such a shocking revelation and whether a full scale investigation has been launched to find out just who these 'six or more' apparently victims of extrajudicial killings are."""
"Attorney General: No Najib link to Altantuya murder Joseph Francisjoseph@asklegal.myThe then Deputy Prime Minster's name was never brought up ""in any culpable manner"" throughout the Court case. Image source: weehinthongNEWS UPDATE Attorney General (AG) Mohd Apandi Ali has clarified, in the wake of a documentary film by Doha-based international TV station al-Jazeera, that Prime Minister Najib Abdul Razak had no connection with the 2006 murder of a Mongolian model, Altantuya Shaariibuu, in the outskirts of Kuala Lumpur.Najib's name, he said, was never brought up ""in any culpable manner"" throughout the Court case. The AG was referring to the conviction of two police commandos, Sirul Azhar Umar and Azilah Hadri. The latter is in death row while the former fled before the case in the Federal Court which set aside a Court of Appeal decision and reinstated the High Court ruling sentencing the duo to death. ""The evidence led did not at all show that the Prime Minister (then Deputy Prime Minister) played any role in the case,"" said the AG. ""The attempts by parties and individuals mentioned to somehow connect the Prime Minister to the murder case is completely without basis."" Earlier, the Prime Minister's Office (PMO) said in a statement in response to the al-Jazeera film that Najib had never met Altantuya and described as ""intentionally misleading"" the allegation that the convicted officers were part of his security detail.The al-Jazeera film focused on the murder and unanswered questions on the motives for the crime. It linked the victim to an affair with political analyst Abdul Razak Baginda, a close friend and confidante of Najib, who was acquitted in 2008 after initially being charged with abetment.The TV station said the documentary was ""a detailed and thorough report into the murder mystery that continues to have many unanswered questions"".""All those mentioned in the film have the Right of Reply. Every effort is taken to ensure that the Right of Reply is given to them.""An Al Jazeera spokesman from the Doha Headquarters of the TV station told Malaysiakini in an email that the film follows the facts while also raising new developments, particularly in relation to one of the two convicted killers, Sirul Azhar Umar, who's currently under detention in Sydney, Australia. ""We would like to reiterate that we are an independent international news organisation. We have no agenda whatsoever. That goes for all our stories.""Al Jazeera said that it would co-operate with Malaysian authorities who are investigating its documentary. ""Al Jazeera takes seriously its editorial independence and stands by the work of the journalists who provide exemplary and fair coverage at all times.""Briefly, the film appears to suggest that ""new evidence"" has been uncovered on the murder and these include the startling theory and/or conclusion advanced by a Sirul relative that Razak Baginda pulled the trigger and killed his lover Altantuya.Sirul was said to be attempting to blackmail Najib.Former Inspector General of Police, Musa Hassan, told the media that the only one with a motive to kill Altantuya was Razak Baginda and the likely motive was to get rid of a blackmailer. ""Unfortunately Razak Baginda was released. The victim herself made a police report at the Brickfields police station on why she was blackmailing Razak Baginda. She came here to claim money from her male friend. The police report alleged that she was being harassed and threatened by someone. She said that if anyone was at fault, 'this person' should be held responsible.""""Anyone with new evidence related to the murder should lodge a police report. Those who were convicted of killing Altantuya should have revealed in Court the reasons for carrying out the crime.""Inspector General of Police Khalid Abu Bakar has since accused the TV station of not turning up new evidence but planting them. He has pledged to go after those who fed the TV station the ""wrong"" information. He has since been reported as describing the film as ""rubbish"".It has been said that whatever al-Jazeera covered was nothing new and that all was known in Malaysia. In short, al-Jazeera was into hearsay and, in the words of Khalid, ""fiction"".It has been alleged widely in the social media, that statements by the two convicted killers were never taken into consideration by the police and the exact circumstances under which the two cops entered the picture reportedly remain murky and incomplete.The question, if Razak Baginda did indeed pull the trigger, was whether he had the opportunity. Was the murder weapon ever found?Razak Baginda was once quoted as saying in the media, ""we should have paid her and then all this would not have happened."" Explaining the killing, he said ""there's such a thing as rogue cops"".The contention in the al-Jazeera film may be that Najib knows more than what he has been saying and may be guilty of abetment.With what degree of certainty can al-Jazeera say that Najib knew Altantuya and in fact introduced her to Baginda at a diamond exhibition in Singapore after reportedly having a short affair with her? The question is also how did Altantuya enter the picture? Baginda's wife, after the husband was held, was heard screaming on TV, ""it's not my husband who wants to be Prime Minister""DAP veteran Lim Kit Siang, in a media statement, said that Najib would forever be haunted by the Altantuya case. There's no reason for the Prime Minister to be haunted if he didn't know the murder victim."
"Bar Council may sue on 1MDB, RM2.6b issue Joseph Francisjoseph@asklegal.myImage credit: The Malaysian Bar NEWS UPDATE The Bar Council, said its President Steven Thiruneelakandan, would write to the Government of Malaysia as soon as possible for a Royal Commission of Inquiry (RCI) into the 1Malaysia Development Berhad (1MDB), its strategic investment and development arm, and the RM2.6 billion reported in Prime Minister Najib Abdul Razak's personal accounts with AmBank Islamic private banking services before the last General Elections in 2013. ""It's in Najib's own interest to recommend an Inquiry and to allow investigations to run unhindered,"" said Thiru. He added that the Bar Council may also initiate legal action against public officers who may have obstructed investigations into the RM2.6 billion controversy. ""Those named in the suit would include the Prime Minister, as well as others who interfered with investigations into the RM2.6 billion controversy and the RM42 billion 1MDB Scandal.""""The Bar Council is mandated under the Legal Profession Act to take action in the administration of justice without fear or favour.""These are among Resolutions passed by the Bar Council at an Extraordinary General Meeting on Saturday in Kuala Lumpur. Three other Resolutions are to condemn the removal of Attorney General Abdul Gani Patail in late July, the crippling of the Public Accounts Committee (PAC) which was investigating the 1MDB Scandal, and the alleged intimidation and harassment of investigating officers in the AG's Chambers, the Malaysian Anti Corruption Commission (MACC), Bank Negara and the Special Branch.Resolution on the allegations of financial impropriety concerning 1MDB and its related companies, the transfer of MYR2.6 billion and the flow of MYR42 million into the Prime Minister's personal bank accounts, and matters in connection therewith.Briefly, the Resolutions read as follows: Therefore, it is hereby resolved that:(a) The Malaysian Bar condemns the interference with, and the subversion of, the cause and administration of justice, and the investigation and inquiry into the allegations of financial impropriety concerning 1MDB and its related companies, and the transfer of MYR2.6 billion and the flow of MYR42 million from SRC, both into the Prime Minister's personal bank accounts.(b) The Malaysian Bar condemns the abrupt removal of Tan Sri Gani; the crippling of the PAC; and the harassment, intimidation and oppression of investigating officers or personnel of the AGC, MACC, BNM, and the Special Branch of the PDRM.(c) The Malaysian Bar demands that the Malaysian Government immediately advise the Yang di-Pertuan Agong to establish a Royal Commission of Inquiry (""RCI""), which should comprise members who are independent, impartial and of unimpeachable integrity, to inquire into and investigate: (i) the allegations of financial impropriety concerning 1MDB and its related companies; (ii) the transfer of MYR2.6 billion into the Prime Minister's personal bank accounts; and(iii) the flow of MYR42 million from SRC into the Prime Minister's personal bank accounts;and to report on, and make public, its findings and recommendations, including any further action that needs to be taken.(d) The Malaysian Bar notes that several members of the administration are advocates and solicitors of the High Court of Malaya, and the Malaysian Bar reminds such members of the administration that, whether in active practice or not, all advocates and solicitors are expected at all times to protect and further the rule of law and to uphold justice. The Malaysian Bar further reminds such members of the administration that the failure to maintain the core values of the legal profession would render them liable to disciplinary action under the Legal Profession Act 1976.(e) The Malaysian Bar mandates the Bar Council to take any and all steps that it deems appropriate in order to affirm and preserve the rule of law, to uphold the Federal Constitution, and to protect the administration of justice, including but not limited to, instituting a legal suit(s) against any person(s) responsible for the interference with, impediment to, or obstruction or perversion of, the administration of justice, and the investigation into: (i) the allegations of financial impropriety concerning 1MDB and its related companies; (ii) the transfer of MYR2.6 billion into the Prime Minister's personal bank accounts; and(iii) the flow of MYR42 million from SRC into the Prime Minister's personal bank accounts.Thiru drew the attention of Members to the amendment he wished to make to the title of the motion, as follows: ""Motion on the allegations of financial impropriety concerning 1MDB and its related companies, the transfer of MYR2.6 billion and the flow of MYR42 million into the Prime Minister's personal bank accounts, and matters in connection therewith, proposed by Steven Thiruneelakandan, as Chairman of the Bar Council and on behalf of the Bar Council, at the Extraordinary General Meeting of the Malaysian Bar on 12 September 2015"";as well as various amendments to the content of the motion.Thiru called the EGM to order at 10:43 am, and proceeded directly to the heart of the issue.One motion had been proposed for consideration at this EGM:""Motion proposed by Steven Thiruneelakandan, as Chairman of the Bar Council and on behalf of the Bar Council, at the Extraordinary General Meeting of the Malaysian Bar to be held on 12 September 2015."""
"Jury not out on when Sabah, S'wak were free Joseph Francisjoseph@asklegal.myThe author of ""the Queen's Obligation"" has suggested after 52 years that Sabah and Sarawak did not free themselves of British colonial rule on Aug 31 and July 22 respectively in 1963. Image credit: FMTNEWS ANALYSIS The consensus of views in Kota Kinabalu and Kuching is that Sabah became independent on 31 Aug 1963 when Chief Minister Donald Stephens declared his homeland as independent on that day in a public ceremony held at Padang Merdeka, Kota Kinabalu, while Sarawakians mark the departure of the last British Governor on 22 July 1963 as the day that their homeland became independent.Yet, an author has suggested after 52 years that Sabah and Sarawak did not free themselves of British colonial rule on the days that they are now observing as when independence came for them. Not many will agree with him.Parti Kerjasama Rakyat Sabah (Pakar) Secretary-General, Zainnal Ajaman, who authored the recently-released book, ""The Queen's Obligation"", claims that the people in Sabah and Sarawak are mistakenly celebrating their Independence days on 31 Aug and 22 July respectively. ""There's no evidence, by way of documents, that Sabah became independent on 31 Aug 1963 and Sarawak a little earlier in the same year on July 22,"" said Zainnal who graduated as an economist. ""Both Sabah and Sarawak became independent on 16 Sept 1963 when they federated with Malaya (to facilitate the merger of Singapore with the peninsula).""Zainnal claims that nothing significant happened in Sabah on 31 Aug 1963 apart from the arrival of a United Nations team, hastily set up, to ascertain the views of the people on federating with Malaya. ""In Sarawak, the Governor left on 22 July 1963, not because it was Independence Day, but because his wife was sick (in England) and he had to be with her.""In Kota Kinabalu, stressed Zainnal, the last British Governor Sir William Allmond Goode left on 15 Sept 1963, the eve of Malaysia Day on Sept 16. ""The idea that 31 Aug 1963 would be North Borneo Self-Government Day comes from Article II of the Malaysia Agreement 1963 which states that it would be brought into operation on that day.""The Article, he added, was amended on 28 Aug 1963 to read 16 Sept 1963. ""It was signed by five parties viz. the United Kingdom, the Federation of Malaya, North Borneo, Sarawak and Singapore.""He conceded that the date, 16 Sept 1963, was not included in the Constitution and the Federal Government continues to celebrate 31 Aug 1957 as Merdeka Day. ""The Constitution makes no mention of Malaysia Day at all.""""Prime Minister Najib Abdul Razak decided in 2010 that Sept 16 would be celebrated as a national public holiday. It was a political decision. When there's a new Prime Minister tomorrow, he may not recognise Malaysia Day. He may do away with Sept 16 as a national public holiday. The point is that 31 Aug 1957 has no meaning for the people of Sabah and Sarawak.""Zainnal said that he did meet with Najib in mid-July this year along with members of a Committee from Sabah and gave him a copy of the Malaysia Agreement 1963 and the Inter-Governmental Committee (IGC) Report in book form. ""He was surprised because he was not aware of the existence of the documents.""""If the Prime Minister himself isn't aware, what about the Federal Government officers, (especially those not dealing with Sabah and Sarawak?)""He urged that perhaps the National Institute of Public Administration (Intan) can make Federal Government servants aware of the Malaysia Agreement 1963."
"Point of law on whether customs have force of law Joseph Francisjoseph@asklegal.myThe High Court and Court of Appeal earlier recognised temuda, pemakai menoa and pulau galau as NCR (Native Customary Right) land. Image source: https://radiofreesarawak.org/2015/04/baru-bian-nat...IN COURT An Appeal by the Sarawak Government and a plantation company in the Federal Court in Kuching against an earlier decision of both the High Court of Sabah and Sarawak and the Court of Appeal which recognised temuda, pemakai menoa and pulau galau as NCR (Native Customary Right) land was on Wednesday put off to a later date. The Court may have taken cognizance of the fact that several hundred Orang Asal (Natives) had gathered outside the Court.Court of Appeal President Md Raus Sharif, who chaired the hearing, made the decision to defer the date to deliver the decision. Other Judges who sat with him: Abdull Hamid Embong' Ahmad Maarop, Zainun Ali and Abu Samah Nordin.Md Raus made the decision after hearing submissions by Sarawak Legal Advisor J. C. Fong, representing the Applicant, and from senior Sarawak lawyer Baru Bian and Yogeswaran Subramaniam representing the Respondents Tuai Rumah (longhouse chief) Sandah Sabau of Rumah Sandah in Ulu Machan, Kanowit and eight other NCR land owners.The point of law to be decided, in the words of Baru, was whether customs have the force of law. ""If we lose this case, that means that we cannot have NCR beyond temuda as pemakai menoa and pulau galau will be no more NCR.""Temuda under the Iban customary law called Tusun Tunggu, which generally refers to all Orang Asal including the non-Iban, refers to cleared/farmed land i.e. the acquisition of NCR beginning with the clearance of untitled virgin land or jungle by an Orang Asal, followed by the occupation of the cleared land. There's an argument that once such land is abandoned, the NCR created or acquired previously over the land would be lost.Pakai menoa refers to land next to temuda land and means communal land while pulau galau is the land beyond covering the forested areas.In 2009, Ulu Machan residents filed a case related to encroachment of their temuda, pemakai menoa and pulau galau land by a plantation company in 2008. The owners of the land which include Tuai Rumah (longhouse chief) Sandah Tabau, Tuai Rumah Lajang and seven other claimants from Ulu Machan, Kanowit had won the case in both High Court and the Court of Appeal which recognised temuda, pulau galau and pemakai menoa which span a total of 5,630 hectares of land.In March, the Federal Court in Kuching granted leave to the government and a plantation company to appeal the case.The government contended that they only had rights over 2,802 hectares which they or their ancestors had acquired from clearing virgin jungle for farming as shown in aerial photos taken in 1951, but no rights to the land in the adjoining primary forests of 2,712 hectares which the claimants alleged was their 'pulau' where they hunted and foraged for food and medicine.The Federal Court will have to consider amongst other matters, whether the pre-existing rights under native laws and customs which the common law respects go beyond felled and cultivated lands by natives (in this case, the Iban custom of temuda) AND include or extend to rights to land in and over trees, fruit trees, hunting grounds, fishing grounds, grazing grounds and areas for the gathering of food and forest produce in uncultivated areas within their broader territorial domain or communal areas (in this case, the Iban custom ""pemakai menoa"" and/or ""pulau galau""/ ""pulau""/""galau"").Also to be considered is whether it was necessary for these pre-existing native customs to be expressly given the force of law by the legislative or executive arms of the Government of Sarawak or their predecessors before such customs are given legal recognition. From 2007, the apex court of Malaysia has recognised the pre-existing laws and customs of Indigenous inhabitants (natives of Sarawak, natives of Sabah and Peninsular Malaysia Orang Asli) relating to their customary lands without the need for formal recognition of such laws and customs by the relevant Legislatures and Executives unless such rights are validly extinguished by the Government (see Superintendent of Land & Surveys Miri Division & Anor v. Madeli Salleh [2007] 6 CLJ 509 (Federal Court)).These rights are determined in accordance with the customs, practices and usages of the particular Indigenous community (see Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 4 CLJ 169) AND established as a matter of fact through the continuous occupation of the land claimed (see Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and another appeal [2006] 1 MLJ 256 and/or the maintenance of a traditional connection with the land claimed in accordance with customs distinctive to the claimant community (see Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors [2002] 2 MLJ 591).In essence, the Federal Court has to consider whether these customs are legally enforceable notwithstanding the fact that they are not contained in codified laws. The question before the Federal Court, if determined, may potentially carry major legal implications for large tracts of customary lands currently occupied, used and enjoyed by the natives of Sabah and Sarawak and Peninsular Malaysia Orang Asli.Sarawak Chief Minister Adenan Satem earlier argued in the Sarawak Assembly that the Sarawak Government was guided on NCR land by the decision of the Federal Court in the case of Bisi Anak Jinggot @ Hilarion Bisi Anak Jinggot vs Superintendent of Lands and Surveys, Kuching Division, delivered on 12 July, 2013."
"Why Do We Pay Taxes? BY: PUTERI AMELIA NURHANANIE BT. AZIZANputeriamelia@iium.edu.myOne of my students posed this interesting question in class one day, and I thought it would be a good topic for me to write.According to Black's Law Dictionary, a tax is a ""pecuniary burden laid upon individuals or property owners to support the government..."" and it is any enforced contribution imposed by government ""whether under the name of toll, tribute, tallage, gabel, impost, duty, custom, excise, subsidy, aid, supply, or other name.""It means that everyone must pay taxes because the government says so, and the tax money shall be used by the government to pay for things that most people use, for example roads, schools, libraries, enforcement of law and public order, bridges, tunnel projects, and expenditures on war. Governments also use taxes to fund welfare and public services such as education systems, health care systems, street cleaning, pensions for the elderly, unemployment benefits, and public transportation. A portion of taxes also go to pay off the state's debt.There are 2 types of tax: If tax is levied directly on personal or corporate income, then it is a direct tax. If tax is levied on the price of a good or service, then it is called an indirect tax.The first known taxation system was in Ancient Egypt (around 3000 BC - 2800 BC), where peasants too poor to pay tithes to the Pharaoh would contribute by way of forced labour. Taxation was also described in the Bible, where Joseph was telling the people of Egypt how to divide their crop, providing a portion to the Pharaoh.: ""But when the crop comes in, give a fifth of it to Pharaoh. The other four-fifths you may keep as seed for the fields and as food for yourselves and your households and your children."" [Genesis, 47:24].In Islamic teaching, zakat is a form of annual taxation on certain kinds of property and the money will be used for charitable and religious purposes, and for the administration of the government. Zakat is obligatory on every Muslim who is financially able and it is one of the five pillars of Islamic faith [Surah An-Nur, verse 56]. In the Qur'anic view, zakat is a way to redistribute the wealth, thus increasing the flow of cash in the economy with a particular interest in the poor and the dispossessed Muslims. Some Muslim states applied jizya on non-Muslim citizens in return of freedom to practice their faith, to enjoy a measure of communal autonomy, to be entitled to the Muslim state's protection from outside aggression, and to be exempted from military service and the zakat taxes obligatory upon Muslim citizens.According to most political philosophies, taxes are justified as they fund activities that are necessary and beneficial to society. Additionally, progressive taxation can be used to reduce economic inequality in a society. However, because payment of tax is compulsory and enforced by the legal system, some political philosophies view taxation as theft, or tyranny. Individualist anarchists, anarcho-capitalists, and libertarians see taxation as government aggression. [Williams, Walter E. (2008).""Government theft, American-style""]. Taxation has also been opposed by communists and socialists. In socialist economies such as that of China, taxation played a minor role, since most government income was derived from the ownership of enterprises. [Li, Jinyan (1991).Taxation in the People's Republic of China. New York: Praeger.]While the morality of taxation is sometimes questioned, most arguments about taxation revolve around the degree and method of taxation and associated government spending, not taxation itself."
"Rewcastle: No conspiracy to topple Gov't Joseph Francisjoseph@asklegal.myThe Sarawak-born Editor said the article in the New Straits Times on Sun was just the latest in numerous libelous accusations that have been made against her.NEWS Sarawak-born Clare Rewcastle-Brown, the Founder-Editor of the UK-based whistleblowing website The Sarawak Report, has denied a New Straits Times (Nst) report on Sun that she was engaged in a conspiracy to topple the democratically-elected Federal Government in Putrajaya headed by Prime Minister Najib Abdul Razak.She said that nothing that Nst can do or say against her and The Sarawak Report will alter the fact that crimes have been committed in Malaysia, involving 1Malaysia Development Berhad (1MDB), and these are being investigated in several countries. ""We reserve our rights regarding any further distortions, accuracies or false allegations by Nst.""""Perhaps, not surprisingly, the Nst has performed a classic job of selectively editing and distorting quotes in order to try and do a hatchet job on me."" The article in Nst, she stressed, was just the latest in numerous libelous accusations that have been made against her by them and other organs of Najib, ""who are happy to accuse anyone in this matter, except those who are blatantly the actual criminals"".She conceded that she has charged that the 1MDB Board of Directors was involved in a multi-billion dollar heist that generated fat kickbacks for them. ""I have said this numerous times but so far there has been no libel suit.""Rewcastle, in stating her case via email from London, said that she does not agree with Nst that Najib was democratically elected. ""I do indeed think that the Prime Minister of Malaysia is managing a dangerous criminal regime which has stolen billions from the public and then used some of it to buy an election.""This is a reference to the Wall Street Journal (WSJ) report on Friday 3 July which alleged that USD 681 million entered Najib's accounts with AmBank Islamic private banking services just before the last General Election in 2013.Najib, without touching on the WSJ report, claimed that he received the said sum from a Middle Eastern source, either a power or an individual, for the ruling Barisan Nasional (BN) to win GE13.Rewcastle, going back to the Nst report, said that ""the problem is that I am not the person who has committed a crime. The people that they (Nst) are trying to protect by attacking me have committed the crime.""""Corruption went up through the country's power structures. When there's corruption at the very top in a country, the impact on everyone who is not part of the crony clique in charge was invariably disastrous.""She charged that the business community, both local and foreign, doesn't want to deal with the Malaysian Government because of the escalating problem of graft which has reached epic proportions under Najib. ""The economy is showing the consequences.""The Nst, added Rewcastle, has done nothing to confront blatant criminality at the heart of their country and government. ""Not once has this propaganda sheet expressed the slightest concern or regret that money which was borrowed for development was siphoned into accounts controlled by Penangite business and Najib's friend, Jho Low.""The Nst, she continued, has also bandied about allegations of planned money laundering on her part. ""Of course, that's nonsense. If money is earned in the first place and legitimately transferred, what's being laundered?""Laundering takes place, she explained, when one was trying to disguise stolen money or the proceeds of crime i.e. the money stolen by Jho Low and Good Star from the 1MDB PetroSaudi Joint Venture and then laundered through BSI Bank in Singapore and most recently through Jho Low's father's accounts in Switzerland as well."
"Cult of evidence doesn't necessarily win suits Joseph Francisjoseph@asklegal.myThose charged were acquitted, not because of no evidence, but because of mishandling of evidence or failure to prosecute properly. NEWS UPDATE Intelligence, competence, and quality evidence delivers the blows in Court and wins suits rather than the cult of evidence. That's the advice that came from Richard Malanjum, Chief Judge of Sabah and Sarawak, during a Judiciary-led ?Environmental Workshop on Capacity Building for Prosecution Officers and Investigation Officers"" during the weekend in Kota Kinabalu for the Sabah Working Group on the Environment.?In a lot of cases previously, those charged were acquitted, not because of no evidence, but because of mishandling of evidence or failure to prosecute properly,"" said Malanjum. ?The Special Environmental Court set up last January will flip-flop if poor investigation and poor prosecution continue.""?That's why we are here, to train Investigation Officers and Prosecution Officers so that they know how to better handle cases.""Malanjum advised Investigation Officers that they need to know how to handle evidence, how to collect evidence. ?That's important.""The Chief Judge also had some advice for Prosecution Officers. The Court, he said, wants to see that they know how to tender evidence in Court, how to ask questions, ?because sometimes they ask the wrong questions and end up losing a case they could have otherwise won"".Malanjum, addressing a complaint that that there was ?abundant evidence"" of violation of Setback or Riparian Reserve Laws throughout the waterways in Sabah, but ?no prosecution"" had ever taken place, he pointed out that the courts can't do anything unless the matter was brought before it. ?For instance, no NGO has ever filed a case before it.""He suggested the possibility, although the riparian reserves are state lands, mandamus or judicial writ issued as a command to a lower court or ordering a person to perform a public statutory duty. He was taking a question from Benoit Goossen, director of Danau Girang Field Centre, Kinabatangan.Addressing another point, a Public Prosecutor explained that the criteria needed before pressing charges against environmental offenders was simple: In almost all criminal cases, there will definitely be a need to charge the case, as long as there's sufficient evidence, i.e. as long as the investigation papers and all the elements and ingredients of the offence are in order. ?The idea was to ensure that justice is done,"" he said..Wilson Baya, the Director of Sabah Wildlife Department, lamented that his Department had no lawyers among its Investigation Officers and Prosecution Officers. ?There's a dire need to develop 'confidence' through 'exposure'.""Programme Manager Kanitha Krishnasamy conceded that wildlife laws in Malaysia were weak from the perspective of penalties. As laws are amended to provide high penalties, she said, more of these ?criminals"" will seek professional legal help and ?this can be very intimidating in Court"".?We need to be in a position to go against them in Court."""
"Borneonisation suit may head for UN Joseph Francis The Sabah Progressive Party (Sapp) may go all the way to the United Nations if it cannot get justice at the Federal Court. NEWS ANALYSIS Senior Sabah lawyer Peter Marajin is mulling over the possibility of getting the Federal Court to revisit its own ruling on the Borneonisation suit and revise it. He hopes the written grounds rejecting the suit will be available within a reasonable period of time to facilitate another attempt in the Federal Court. The Sabah Progressive Party (Sapp), his party, has meanwhile warned in a brief statement that it may go all the way to the United Nations if it cannot get justice at the Federal Court. The case was knocked out in the Federal Court in late August when ex-policeman Bernard Fung Fon Chen, 73, and former attachment teacher Mohd Nazib Maidan Dally, 38, the plaintiffs, failed to obtain leave to file their appeal. Chief Judge of Malaya Zulkefli Ahmad Makinudin, presiding together with Federal Court judges Suriyadi Halim Omar and Ahmad Haji Maarop dismissed the application on the grounds the duo were just individuals and had no grievances. If they wanted to launch a class action suit representing the people of Sabah, the Court held, they should have first obtained the consent of the Attorney General (AG). ?Since they didn?t obtain the consent of the Attorney General, they have no locus standi,? the Court held. The Court noted that the duo kept quiet all these years and suddenly woke up to go to Court to sue the government. ?All these years they did nothing about Borneonisation of the civil service in Sabah and Sarawak.? Senior Federal Counsel Shamsul Bolhassan, during his arguments, stressed that only the Attorney General could take up a class action suit and that the plaintiffs therefore did not have locus standi. ?If they were representing the people of Sabah, it should be a class action suit, and only the AG could take up such a case.? State Counsel Mohd Ikhwan Ramlan and Senior State Counsel Dayangku Fazidah Hatun Pg Bagul, who represented the Sabah Government, absorbed Shamsul?s submissions. Lawyer Ken Yong, for the plaintiffs, earlier argued that any Sabahan or Native of Sabah can wake up one day and go to Court if they see anything wrong with Sabah with respect to the Malaysia Agreement 1963 (MA63). ?The consent of the AG was irrelevant because this was not a class action suit.? ?The case involves public interest and the two individuals were representing the people of Sabah generally but not as a class action suit.? Fung and Nazib initiated the suit in 2011, by way of an Originating Summons, to compel the Federal Government to implement the promise of Borneonisation of the civil service in Sabah and Sarawak as provided for under MA63. The Federal and Sabah Governments were named first and second defendants. The High Court of Sabah and Sarawak, formerly the High Court of Borneo, on 25 May 2012 dismissed an application by the Federal and Sabah Governments to strike out the suit. The High Court ruled that the plaintiffs had locus standi. The Court of Appeal allowed the appeal by the Federal and Sabah Government on 1 Feb 2013. Read Further Here: http://www.scribd.com/doc/89330861/The-Original-Agreement-of-Malaysia-9-July-1963"
"PKR suit on last GE merits hearing Joseph Francis If the Court wants to allow the suit to be struck out, it should not do so at least without the merits of the case being heard. NEWS ANALYSIS It would be interesting to witness whether the High Court of Malaya in Kuala Lumpur allows the application by Prime Minister Najib Abdul Razak and three other parties to strike out a suit filed by PKR and five other parties that the results of the last General Election in 2013 be set aside. There?s no reason why the civil court cannot make declarations separate from the Election Court which operates after every General Election but provided it can accept the various proof and evidence by the plaintiffs that the defendants exceeded election spending limits. The argument can be made that even if the Court wants to allow the suit to be struck out, it should not do so at least without the merits of the case being heard. Evidently, there?s a case to be heard. Each election candidate for a parliamentary seat is not allowed to spend more than RM200,000 and for a state seat RM100,000 under section 19 of the Election Offences Act, 1954. Najib himself has made the claim that USD681 million which entered his personal banking accounts at AmBank Islamic private banking services before the last General Election in 2013 came from a source in the Middle East and/or a power to help the ruling Barisan Nasional (BN) win the election. Najib and Barisan Nasional (BN) Secretary-General Tengku Adnan Tengku Mansor, two of the defendants, reportedly plan to apply to strike out the suit on the grounds that the civil court was not the proper forum to hear the suit and, furthermore the claim goes, Najib and Adnan should not have been named as defendants. Again, this is a reference to the fact that the Election Court , at the High Court, hears petitions challenging the validity of election results but provided filed within the stipulated time. Generally, the Court takes the position that no election is free of fraud, but the test in such cases was whether the extent of fraud affected the outcome. If the outcome was affected, the Court could either hand the victory to the other party after discounting the disputed votes, or order fresh elections. PKR, like other opposition parties and even the BN itself, has been through the process in the Election Court . No election result was ruled invalid. It?s not easy to prove election fraud in a Court of Law. The Court is not about the truth, justice, ethics or moral values, but the law. Once the election results are gazetted, the law holds that they cannot be challenged. By revisiting the last General Election through a civil suit, PKR was obviously taking a global strategic approach. PKR filed the civil suit on August 12 following an expose in the Wall Street Journal on Friday 3 July that the USD681 million (RM2.6) billion entered Najib?s personal banking accounts with AmBank Islamic private banking services before GE13. The newspaper report has not been challenged although Najib?s lawyers sought clarification from it after earlier threatening to sue it. The plaintiffs are seeking several declarations; that the BN be de-registered; that the conclusion of the 222 parliamentary seats has been compromised; and that the results of GE be therefore set aside. They also want the Court to rule that each of the defendants which include the 1Malaysia Development Board (1MDB) and the Election Commission (EC), either acting individually or with each other, had maliciously and dishonestly practised fraud on the Malaysian electorate by the commission of corrupt and illegal practices, and as a consequences the results of GE13 should be declared null and void. Najib has until Oct 1 to file his defence; the BN by Sept 15; and 1MDB and EC by Sept 14. Deputy Registrar Nor Fauzani Mohd Nordin made the directions during case management on Thursday. Mohd Hafarizam Harun is representing Najib and the BN Secretary-General; and Tan Hock Chuan appears for 1MDB. Senior federal counsel in attendance Alice Loke Yee Ching and Azizan Md Arshad were present on Thursday. The plaintiffs were represented by Michelle Kumar. Messrs Tommy Thomas filed the suit on their behalf. The plaintiffs include jailed Opposition Leader Anwar Ibrahim; former PKR Secretary-General Saifuddin Nasution Ismail; PKR Vice Presidents Nurul Izzah Anwar and Tian Chua; and former PAS leader Dzulkefly Ahmad."
"Lawyers For Liberty - Stop the witch-hunt, being rude is not a crime Press StatementStop the witch-hunt, being rude is not a crime3 SeptemberLawyers for Liberty views with extreme concern the concerted attempts made to criminalise some Bersih 4 participants who were photographed stepping on a picture of the Prime Minister and Pas President Hadi Awang. While the act itself may be rude, it is certainly not criminal in nature as the law does not concern itself with trifles. Our civilised society will come to an end if any mere abuse, discourtesy, rudeness or insolence like in the present case, a person found himself or herself exposed to all the trouble and worry of arrest, detention or criminal trial. There is nothing in the law that elevates the PM or a political party leader to a special status beyond reproach, that mandates them to be ?protected persons?. Their status in law is the same as any other ordinary person and they should likewise be treated equally as per Article 8 of the Federal Constitution. This witch-hunt against the Bersih participants is a serious abuse of the Penal Code as the provisions, archaic as they are, were never meant to protect the PM or public figures from public criticisms or insults. This latest incident, adds to the alarming increase of cases that were brought against persons who had allegedly insulted the authorities or figures seen to be aligned with the authorities. We also note that such a ?rude? form of protest is not unique to the present case and various opposition and civil society leaders have suffered similar or worse forms of protest including threatening behaviour but no action was taken against the perpetrators. Needless to say, questions must be raised on the selective nature and double standards in approaching insult cases by looking at the personalities involved and their political alignment.The PM should acknowledge that he suffers from poor public image but this is unlikely to be improved by the further abuse of power for something as frivolous as stepping on his picture which is not a crime, no matter how unpleasant it may be. We wish to remind the PM that the authority and respect for his administration do not come from fear but from public confidence and this in turn depends wholly on his administration?s own conduct and integrity, for example by tackling corruption and abuse of power. We call on the police to go back to basics ? to be a professional, impartial and competent police force in maintaining law and order, preventing and detecting real crimes and apprehending real criminals rather than be concerned with frivolous matters like defamation, insult and annoyance against the PM or political party leaders. Released by:Eric PaulsenExecutive DirectorLawyers for Liberty For further information:Off: 03-7960 5688Mobile: 017-228 1973"
"1MDB unaware of bank account frozen by Swiss authorities Media statement 1MDB not aware of accounts being frozen 2 September 2015 We refer to recent media reports concerning certain bank accounts being frozen in Switzerland, in relation to a probe being conducted by the Swiss authorities. As far as 1MDB is aware, none of the company's bank accounts have been frozen. 1MDB is in the process of developing a better understanding of the on-going investigations in Switzerland so the company cancooperate to its fullest extent.Released by 1Malaysia Development Berhad"
"Court of Appeal allows damages for  IVF treatment PUTRAJAYA: A paraplegic was awarded RM70,000 in damages by the Court of Appeal for him and his wife to go through vitro fertilisation treatment (IVF) to conceive a child following an accident.This is believed to be the first time the Court of Appeal had recognised damages for IVF treatment.A three-member panel chaired by Justice Datuk Mohd Zawawi Salleh said it was the fundamental right of unemployed S. Nares and his wife M.N. Suguna, a clerk, to have children.The panel, which also comprised Justices Datuk Ahmadi Asnawi and Vernon Ong Lam Kiat, allowed Nares' appeal to overturn an earlier High Court decision to set aside the special damages for IVF treatment.Justice Mohd Zawawi also held driver Goh May Fat and car owner Chew Kit Meng 80% and Nares 20% liable for the accident besides maintaining general and other special damages earlier awarded to Nares by the Sessions Court.Nares, 27, a former Rela member, had sued Goh and Chew for negligence through his wife Suguna, 26.In his suit, he had claimed that without indicating, Goh suddenly made a U-turn and encroached onto his side of the road, thus colliding with him near Jalan Kampung Jawa, Klang, on April 10, 2010.Nares, who had only been married for two weeks before the incident, claimed that due to the accident, he sustained disabilities and incurred expenses and loss of income.In their statement of defence, both Goh and Chew denied responsibility, claiming that the accident was fully or mostly caused by Nares' negligence.On July 31, 2013, the Sessions Court in Klang had awarded Nares some RM2.04mil in damages for, among others, injuries, nursing care, loss of earnings, medical expenses and a sum of RM120,000 for long-term treatment for erectile dysfunction and IVF procedure for the couple who planned to have three children.However, the Shah Alam High Court had on Aug 22 last year reduced Goh and Chew?s liability to 50% and made a contributory negligence of 50% on Nares's part.It also reduced the quantum of damages to about RM1mil. Nares then appealed to the Court of Appeal.His counsel, G.K. Ganesan, said it was his opinion that this was the first time that the Court of Appeal had recognised damages for IVF treatment. ? Bernama"