Hakim And Anor-assignment

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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TUTORIAL QUESTION 1 I HAD BEEN ASKED BY MR CECIRO TO DEFINE AND ILLUSTRATE THESE TERMINOLOGIES FOR HIM. 1) Power: The term judicial power can be broadly defined as “the power which every sovereign authority must of necessity have to decide controversies between its subject, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authorities decision (whether subject to appeal or not) is called upon to take action. In other word, it’s the power of the court to ask the party to do or not to do something. Normally power can be used after the trial where the court wants to sentence the accused. That statement of the Australian Chief Justice was cited with approval by Justice Zakaria Yatim in Public Prosecutor v. Dato’ Yap Peng (1987) 2 MLJ 311 when the corresponding term in the Federal Constitution was the subject of judicial interpretation. 2) Jurisdiction: The term jurisdiction means “jurisdiction” and when it’s used with reference to courts. It refers to the type of cases that may be tried. Thus a court may be described as exercising Civil or Criminal or general jurisdiction. In other words, it’s mean that the right of the court to decide and grant remedies. It refers to the case that may be tried.

No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara, Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690

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Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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3) Original Jurisdiction: When it is said that a court is exercising ‘original jurisdiction’. It means that the court has the right to try cases at first instance that is the power to hear the case for the first time, after the lower court had made the decision. For example, only the High Court can exercise original jurisdiction in respect of the offence of murder. In general, a court’s original jurisdiction is governed by monetary limits in civil matters and the power to inflict punishment in criminal matters. 4) Appellate Jurisdiction: On the other hand, if a court is said to possess “appellate jurisdiction”, it means the court considers the case at second or more instance and only after another lower court has made a decision which is the subject of an appeal. Thus, the High Court is said to be exercising appellate jurisdiction if it hears an appeal from a decision of a Magistrate’s Court. 5) Referral Jurisdiction: The referral jurisdiction is its authority to determine constitutional questions which have arisen in the proceedings of another court but referred to it for a decision by way of a special case stated. When it has decided, it remits the case to the original court to be disposed of in accordance with that determination. Pending determination of the case by Federal Court, the court before which the question has arisen may stay proceedings. In other words, it is when the Federal Court or High Court been referred for constitutional matters which had arisen in the lower court. Whereas, we know that the lower court can’t made any decision when it is involving the constitutional matters

No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara,

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Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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6) Supervisory and Revisionary Jurisdiction: The term “supervisory jurisdiction” refers to the power of High Court to control the activities of the subordinate court of tribunals. In respect of the Subordinate Courts, the supervisory and revisionary jurisdiction is provided in section 35 of the Court Of Judicature Act 1964 (Act 91). The supervision power is different from the review power. Where the High Court calls for any record, all proceedings in the subordinate Court in the matter in question must be stayed pending further order from the High Court. In general, as a superior court, the High Court has the power to supervise the conduct of and review the decisions of subordinate court. It is a body exercising quasi-judicial bodies’ functions and general tribunals. One of the methods of supervision is through the issue of the prerogative writs from the prerogative jurisdiction inherited from the United Kingdom’s Court. Section 25(2) of the Courts Of Judicature Act road with section I of the schedule to the Act confers power on the court to issue directions, orders or writs including the writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others for the enforcement of the rights conferred by part II of the constitution or any of them or for any purpose. As a conclusion, it is the power of the High Court to control the activities of the subordinate court. Then, the High Court will check the legality of proceeding and decision (procedural law)

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No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara, Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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7) Judicial Review Jurisdiction: The term “judicial review jurisdiction” refers to the power of the court to pronounce on the legality or otherwise of a statute or an act. The authority to exercise it’s review jurisdiction is to be found in the inherent power of the court. It stems from the notion that is the rule of law. Given that the powers of public authorities have expanded in modern government, the court asserts the right to ensure that acts are done within their statutory limits. The courts invoke the doctrine of ultra vires to strike down administrative acts or decisions which are illegal or in excess of jurisdiction

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No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara, Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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TUTORIAL QUESTION 1(2) I was asked to advise Mr. Kumaran whether Subordinate Court i.e.: Magistrate Court has the jurisdiction to award punishment beyond the limit under Subordinate Court Act. Whereas Mr. Kumaran is charged under the Dangerous Drug Act 1952. But, he is confused whether the Magistrate Court has the jurisdiction or not. As we know, Magistrate’s Court is divided into First Class Magistrate and Second Class Magistrate. Section 85, the general rule of jurisdiction to try by the First Class Magistrate stated that First Class Magistrate shall have jurisdiction to try: I. II.

Offences punishable up to ten years imprisonment @ fine, and. Section 392 and section 457 of the Penal Code.

Section 392 is about robbery and section 457 is about lurking house / trespass in order to commit an offence.

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No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara, Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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While the general rule for First Class Magistrate to impose sentence is Section 87 which states that a First Class Magistrate may impose sentence allowed by law not exceeding: I. II.

Five years imprisonment A fine of ten thousand ringgit

III.

Whipping up to 12 strokes

IV.

Any sentence combining any of the aforesaid:

Provided that where, by any law for the time being in force, jurisdiction is given to the court of any Magistrate to award punishment for any offence in excess of the power prescribed by this section, a First Class Magistrate may, notwithstanding anything herein contained, award the full punishment authorized by that law. Mr.Kumaran had been charged under Section 12(2) of the Dangerous Drug Act 1952 (Revised 1980) already stated that: “No person shall have in his possession, custody or control any dangerous drug to which this Part applies unless he is authorized to be in possession, custody or control of such drugs or is deemed to be so authorized under this Act or the regulations made thereunder”

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And he will be sentenced under Section 12(3) which states that: “any persons who contravenes the provisions of subsection (2) of this section shall be guilty of an offence against this act and shall be liable on conviction to be fine not exceeding one hundred thousand ringgit or imprisonment for a term not exceeding five years or both.”

No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara, Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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In this case, Magistrate Court has the jurisdiction to award full punishment because it is authorized under Section 41 (1) which states that: “a Session Court or a Magistrate’s Court presided over by a Magistrate of the First Class shall have jurisdiction to try any offence under this act except in offence under s39B and power to impose any offence so tried the full punishment or penalty provided for that offence by this act or by any regulations made thereunder, other than, in the case of Magistrate Court, imprisonment not exceeding 5 years.” In this section, it’s clearly stated that First Class Magistrate ha the jurisdiction to try this case. The sentence for imprisonment is five years and in the Section 87 (1) of the Magistrate’s Court jurisdiction in order to pass sentence is also five year imprisonment. The exception under this section also gives the First Class Magistrate the power to award full punishment. 7

Section 41 (2) states that: “Notwithstanding the provisions of subsection (1), the High Court shall have jurisdiction to try any case in respect of any offence under this act if the public prosecutor requires any such case to be tried by the High Court.”

No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara, Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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But, in this case the public prosecutor wants to bring the case to the Magistrate Court. We can refer to the case of Lee Heng Kooi v. PP (1993) 1 MLJ 69 whereas in this case, the issue is whether Section 85 is valid or not because in Section 85, there is no sentence for whipping but Section 87(1) state that the First Class Magistrate has the jurisdiction to impose whipping. It is a conflict between Section 85 and Section 87. So, Magistrate Court shall not have the jurisdiction. But, to judge this case we should read Section 85 + Section 87+ Section 40 (1) all together. Then, we would know why Magistrate’s Court has the jurisdiction to impose sentence in this case. For the conclusion, Magistrate’s Court shall have the jurisdiction to award punishment beyond it’s limit.

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No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara, Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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LBA 1043 MALAYSIAN LEGAL SYSTEM 11 CASE NOTE. 1) Citation of the Case: (1998) 2 MLJ 268 2) Name of the Case: SOVA SDN. BHD. v. KASIH SAYANG REALTY SDN. BHD 3) Name of the Court: High Court of Alor Setar 4) Catchwords: Civil Procedure - Jurisdiction - Whether court has jurisdiction to determine dispute "Local jurisdiction" - Meaning of - Place of business and place where cause of action arose different from

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place where proceedings instituted - Whether court is the proper forum - Whether application irregular RHC 1980, O 81 - Courts of Judicature Act, 1964, s 23 5) Judgement (Facts): On December 10, 1986, Sova Sdn. Bhd., the plaintiffs, instituted the present civil suit against Kasih Sayang Realty Sdn. Bhd., the defendants, whereby they alleged that the defendants have committed a breach of a sale and purchase agreement entered into by the two parties on March 13, 1984. By their writ of summons with the accompanying statement of claim filed in this court on the same date, the plaintiff request for an order for specific performance of the said agreement and alternatively a rescission of the said agreement and they also claim damages and costs.

No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara, Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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6) Legal Issue: Whether court has local jurisdiction to determine dispute between the parties. 7) Defendant Argument: 1) That this court has no jurisdiction to determine the dispute between the parties.

According to section 23(1),

the plaintiffs not even fulfil this section whereas in this section none of the criteria fulfilled. In his submission on the jurisdiction issue the learned before counsel contends that as the cause of action arose in Penang and places of business of both the plaintiff company and the defendant company are located in Kuala 10

Lumpur, it must follow that this court has no jurisdiction to determine the dispute between the two parties pursuant to section 23(1) of the Courts of Judicature Act 1964. “23. (1) Subject to the limitations contained in Article 128 of the Constitution of the High Court shall have jurisdiction to try all civil proceeding s where a)

the cause of action arose, or

b)

the defendant or one of several defendants resides or has his place of business, or

c)

the facts on which the proceedings are based exist or are alleged to have occurred , or

d)

any land the ownership of which is disputed is situated within the local jurisdiction of the court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of any other High Court.

No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara, Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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2) That the application for necessary judgment pursuant to Order 81 of the Rules of the High Court 1980 should be dismissed with costs for non-compliance with Order 81 rule 2(2) of the said Rules. 8) Plaintiff Argument:

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1) According to section 121(1), any branches of High Court in Malaya shall have jurisdiction - and - exercised the concurrent jurisdiction even though regardless of where the cause of action arose (section 23) 2) The case shall be brought at any High Court because there did not have agreement in writing which court shall try the case. 9) Ratio Decidendi: High Court of Alor Setar sees that the purpose of having the branches is to enable the party to have easy excess and to facilitate the disposal of cases in Malaya. (to settle the case faster) 10) Held The court held that this case shall be brought to the High Court of Penang and High Court of Kuala Lumpur because this court is not the proper and convenience forum to determine the dispute between two parties.

No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara, Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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LBA 1043 MALAYSIAN LEGAL SYSTEM 11 CASE NOTE 12

1. Citation of the case: (1981) 1 MLJ 165. 2. Name of the case : HARI RAM SEGHAL v. PUBLIC PROSECUTER. 3. Name of the Court: High Court (Malacca). 4. Catch Note

: Criminal Law and Procedure – Revision – Disposal of

outstanding appeals when records had become unobtainable – Revisionary powers of High Court – Application of English Procedure Criminal Procedure Code (F.M.S. Cap. 6), ss. 5 & 323 – Courts of Judicature Act ( 91), s. 31. 5. (Judgment): Facts: The applicant, who was a Chief Inspector Royal Malaysian Police, had been charged under s.352 and s.323 of the Penal Code. When

the case tried in the Magistrate Court, Judge decides

that the offences against him proved. In respect of the first one, he bound over the applicant under s.173A(ii)(b) of the Criminal Procedure Code without recording a conviction in the sum of $200.00 with one surety to be a good behaviour for 6 months; and, in respect of the second one, he convicted and fined the applicant $500, in default 3 months imprisonment.

No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara, Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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The appeal had been filed for both accusation and the applicant wait for the record sent to him. Unfortunately, the Magistrate left Malacca to pursue his degree course at University Malaya and he took the record with him, and he ignored or neglected to write the records of proceeding. High Court decides to revise the case. 6. Legal Issue: Whether the revisionary jurisdiction of the High Court can be exercised in this case. 7.

Appellant’s argument: 

The power or revisionary jurisdiction of High Court must be given wider interpretation.



S.5 of the Criminal Procedure Code, a law relating to criminal procedure may be exercised in this case because the powers of revision also contain in this Criminal Procedure Code.



Order a retrial will take time. The applicant had been denied justice for almost 3 years. Unfair for the applicant.



The applicant also suffered interdiction and half salary for 1 ½ years and a further 2 ½ years without any pay at all.

8. Respondent’s argument: 

Should order a retrial because we owed a duty to the complainants.

No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara, Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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9. Ratio decidendi: High Court of Malacca sees that the power of revision by the High Court must be given a wider interpretation. Besides that the judges of Magistrate Court also neglect and indolence to submit the record. 10. Held: The accused acquitted and discharged on both charges.

No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara, Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK

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LLB (HONS) USIM

LLB (HONS) USIM

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LBA 1043 MALAYSIAN LEGAL SYSTEM 11 CASE NOTE 1. Citation of the case : (1973) 2 MLJ 85 2. Name of the case

: HASHIM BIN SAUD v. YAHAYA BIN HASHIM & ANOR

3. Name of the Court : High Court (Alor Star) 4. Catch Note

: Constitutional Law-Constitutional question raised-claim for Damages for wrongful arrest against government-Whether High Court has jurisdiction to hear the case-Courts of Judicature Act 1964 ss 25(1) and 48(1)-Federal Constitution Art 5(1) and 128(2) Practice and Procedure-High Court-Jurisdiction

5.

Name of presiding judge : Sharma J.

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HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM

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NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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6.

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Facts of the case

: The plaintiff claimed damages for wrongful arrest against and Inspector of

Police and the Government. It was contended by the Senior Federal Counsel for the defendant that the High Court had no jurisdiction to go into the merits of the case as the pleadings disclosed that an issue under Article 5(1) of the Federal Constitution would arise in the suit. 7.

Legal issue: Whether High Court determine the case by itself or not?

8.

Plaintiff argument : 1. 23(1) of the Courts of Judicature Act 1964 explained that High Court have jurisdiction to try the case 2. Section 48(1) of Court of Judicature Act 1964 stated that High Court have to wait the decision by Federal Court

9.

Defendant argument : 1. Section 128(2) qualify the jurisdiction of the Federal Court 2. Art 5(1) and Art 5(3) under Federal Constitution about right to life and personal liberty

No. 17, 1st. Floor, Diamond Square Building, Sri Hartamas, 68210 Damansara, Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS)

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MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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10. Held : The combined effect of Article 128(2) of the Federal Constitution and Section 48(1) of the Courts of Judicature Act, is that if any proceedings in the High Court any constitutional question arises the judge of the High Court trying the case, may either try it himself and determine that question or without deciding and determining the question stay the proceedings and refer the question for the decision of the Federal Court.

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HAKIM & ASSOCIATES 18

(ADVOCATES & SOLICITORS) MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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Your Ref TUTORIAL QUESTION 4(A)

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DISTINGUISH THESE TWO TERMINOLOGIES: APELLATE JURISDICTION

SUPERVISORY AND REVISIONARY JU

1) When the aggrieved party fail in the trial court, he will appeal to the appellate court.

1) Determine higher court’s jurisdiction to ch legality/propriety of the lower court proce

2) To considers the case at second or more time.

2) The party want the court to check the lega

3) After the lower court has made a decision which is the subject to an appeal.

3) S.31 of the CJA 1964 empowers the High decisions made in Session Court relating t

4) Before proceeding to the appeal provisions one points need to be clarified and that is that appeals are creatures of statutes. This point was highlighted in the case of Dato’ Seri Anuar Ibrahim, N.H.Chan JCA said,

4) S.32, the judge may call for the record of a any lower court for the purpose of satisfyi correctness, legality or propriety of any fin order recorded or passed and as for the reg proceeding by any lower court.

“There is no right of appeal at law from a decision of a court to any other court unless there is a statutory provision which gives a right of appeal. The creation of a right of appeal is an act which requires a legislative authority. The right to appeal from one court to another must be conferred by some statute; otherwise the decision of every court is final.”

5) The judges would call for the records shou drawn to a case through:

• Newspapers • Relatives • Convicted offenders ask him to do • Session Court’s judge own motion 6) Can be done voluntarily 7) To prevent a miscarriage of justice.

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HAKIM & ASSOCIATES (ADVOCATES & SOLICITORS)

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MOHD FAREEZ BIN ISMAIL NUR SYUHADA MATWI LLB (HONS) USIM LLB (HONS) USIM NURUL SYUHADA BT AMER LLB (HONS) USIM NUR SHUHADA BT KADIR LLB (HONS) USIM

AFIQAH BT MOHAMMAD LLB (HONS) USIM MA KALTHUM BT ISHAK LLB (HONS) USIM

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TUTORIAL QUESTION: 4 (B) A group of aggrieved aborigines (the appellants) request the court to consider the possibility of bringing an appeal against the Nice Nature Sdn. Bhd., developer of a dam in their motherland. After losing in the first attempt in the Magistrate’s Court, they proceeded to appeal at the High Court. However, the High Court did not entertain the claim. Now they are pursuing the case to the Court of Appeal. As the lawyer representing the aborigines, I need to write my written submission to the Court Of Appeal in order to explain why the aborigines should have the right and ground to make the appeal and whether the aborigines should have the rights and ground to make an appeal Firstly, we need to know whether civil appeal from the subordinate court can be brought to the High Court. According to the section 28 (1) of the Courts of Judicature Act 1964 (Act 91): Subject to any other written law, no appeal shall lie to the High Court from a decision of a subordinate court in any civil cause or matter where the amount in dispute or the value of the subject matter is ten thousand ringgit or less except on a question of law. Meaning that , if the amount of appeal did not exceed RM 10,000 the appeal cannot be brought to the High Court. In this case the amount of claim is RM 249,999.99. So, it is obvious for us that the aborigines has the right to appeal to the High Court and High Court should hear the case but High Court had done a miscarriage of justice when he refuse to entertain this case.

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The Court of Appeal has jurisdiction to hear and determine civil appeals from the High Court’s original jurisdiction or it’s appellate jurisdiction. This already stated in the S.67 of the CJA 1964 where: (1) The Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction, subject nevertheless to this or any other written law regulating the terms and conditions upon which such appeals shall be brought. (2) The Court of Appeal shall have all the powers conferred by s.24A on the High Court under the provisions relating to references under order of the High Court. In this case, the Court of Appeal shall have jurisdiction to hear this case because it come from the High Court’s appellate jurisdiction. Although High Court did not entertain the claim by the aborigines but, the aborigines already brought the case to the High Court. They have the right to appeal to the Court of Appeal and they did not contravene any law regulating this act. As we know, in the Court of Appeal, there are conditions to make the appeal as already stated in the s.68 of the CJA 1964: (1) No appeal shall be brought to the Court of Appeal in any of the following cases: (a) When the amount or value of the subject-matter of the claim (exclusive of than two hundred and fifty thousand ringgit, except with the leave

of Court of Appeal;

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interest) is less

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Meaning that, if the amount or value of the subject matter did not exceed RM 250,000 the appeal cannot be brought to the Court of Appeal unless they got the permission from the Court of Appeal (b) where the judgment or order is made by consent of parties; This paragraph told us that the parties agreed to settle the case at the High Court. They cannot bring any claim because High Court has mutual consent judgment so; there will be no appeal to the Court of Appeal. (c) where the judgment or order relates to cost only, which by law are left to the discretion of the Court, except with the leave of the Court of Appeal; and Generally, the parties cannot appeal on the cost of proceeding except with the leave of the Court of Appeal. For example, at the High Court, the defendant lost and need to pay all the cost of proceeding. He cannot appeal on the cost, but if he insists he shall get the permission from the Court of Appeal. (d) where, by any written la for the time being in force, the judgment or order of the High Court is expressly declared to be final. Meaning that, if there is any written law saying that the High Court’s decision is declared to be final and conclusive.

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In this case, the amount of appeal that had been made by the aborigines is less than RM 250,000 that is RM249, 999.99. According to the section 68 (1) (a) stated that the parties can appeal although the amount of appeal is less than RM 250,000 with the leave from the Court of Appeal. This statement can be prove by the case of Pentadbir Tanah Daerah Melaka Tengah v. Mat Nayan bin Tak [1996] 2 MLJ whereas in this case the amount in dispute is less than RM 250,000 but they can appeal. The respondent in this case was a landowner whose land had been acquired under the Land Acquisition Act 1960 (‘the LAA’). Dissatisfied with the compensation awarded by the collector, he referred him claim for compensation to the High Court. The High Court judge increased the collector’s award to RM 44,964.71. The district land administrator sought leave to appeal against this increase. However, the respondent contended that although the amount of the High Court award was below RM 250,000 no leave to appeal was required as s 68(1) of the Court of Judicature Act 1964 (the CJA) did not apply in this case. It was argued that the LAA was a self-contained piece of legislation which conferred the applicant an independent right of appeal, as long as the collector’s award was above RM 5,000. The question before the court was whether leave from the Court of Appeal was required to appeal in a land acquisition matter.

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According to the s.71 of the CJA 1964: (2) A new trial shall not be granted on the ground of improper admission or rejection of evidence unless in the opinion of the Court of Appeal some substantial wrong and miscarriage of justice has been thereby occasioned; and if it appears to the Court of Appeal that the wrong or miscarriage affects part only of the matters in controversy, or some or one only of the parties, the Court of Appeal may give final judgment as to part thereof, or as to some or one only of the parties, and direct a new trial as to the other part only, or as to the other party or parties. In this case the High Court has conducted a miscarriage of justice that is a miscarriage of its administration of the High Court for not to entertain this case. Therefore, the aborigine has the right and ground to make the appeal to the Court of Appeal as the miscarriage of administration conducted by the High Court. The conclusion is the aborigine has the right to appeal to the Court of Appeal based on s.28, s.67, and s.68. It also has the right for a new trial based on s.71 of the CJA 1964.

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Tutorial Question 3(1) Firm A. As the lawyer for Kelly, I had been asked to consider her locus standi to bring her case to the court in Malaysia. We need to know what the meaning of ruler and their sovereignty is. Issue: a) whether Iskandar is a ruler b) Whether Kelly has the right to bring the case to the Court for Ruler c) Whether this case is under Iskandar’s personal capacity. 1. Intrepretation of “Ruler” a) Article 160 of the Federal Constitution : •

In relation to Negeri Sembilan, means Yang diPertuan Besar acting on behalf

of himself and the Ruling Chiefs in accordance with

the Constitution of that

State; and 25

•

In the case of any State, includes, except in Clause (2) of Article 181 and the

Third and Fifth Schedules, any person who in

accordance with the Constitution

of that State exercises the functions of the Ruler.

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Normally the definition of ruler depends on the state constitutions. The term rulings chief in Negeri Sembilan consists of: i)

Undang Yang Empat

ii)

Undang Luak Sungai Ujong

iii)

Undang Luak Jelebu

iv)

Undang Luak Johol

v)

Undang Luak Rembau

vi)

Undang Tunku Besar Tampin

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In the case of DYTM Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v. Dikim Holdings Sdn Bhd & Anor the interpretation of ‘ruler’ cannot be interpret to his successor. Tengku Idris Shah can be sued because he is only the successor for his father. But in the case of Kelly v. Sltan Iskandar, Sultan Iskandar is a ruler indeed. What made him can be sued in this case is it is about his personal capacity when he cancel their marriage. Kelly has her right to claim for the monetary and exemplary damages suffered in the course of preparation of the marriage and the wide publicity made in Vietnam since she was a model and well-known.

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2. We need to know what ruler’s sovereignty/power/authority is. We can refer to the: a) Article 181 •

Subject to the provisions of this Constitution, the sovereignty, prerogatives, powers and jurisdiction of the Rulers and the prerogatives, powers and jurisdiction of the Ruling Chiefs of Negeri Sembilan within their respective territories as hitherto had and enjoyed shall remain unaffected. The sovereignty of a ruler did not limit on their own territories. Their sovereignty also cannot be challenged. Before 1993, ruler cannot be sued in any manner or any law because they got the absolute immunity such as in the case of

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Mighell v. Sultan Of Johore [1894] QB 147 where the Sultan Of Johore had breach the promise to marry Mighell but he cannot be sued because he enjoyed the absolute immunity. There is exception in S.181 (2) where it had stated that, after 1993 the ruler can be sued if the matter in dispute is in his personal capacity. But if the ruler were act in the position of hid official capacity he still cannot be sued. For example, he represents the state to sign a contract with a company and at that time the ruler did something wrong, he cannot be sued. This can be seen in the case of Faridah Begum v.Sultan Haji Ahmad Shah whereas in this case, Faridah had sued Sultan Haji Ajmad Shah in his personal capacity. So, in the case of Kelly, she can sue Sultan Iskandar in his personal capacity.

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Article 182: 1. Any proceedings by or against the Yang di-Pertuan Agong or the Ruler of the State in his personal capacity shall be brought in a Special Court established under Clause (1).

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2. The Special Court shall have exclusive jurisdiction to try all offences committed in the Federation by the Yang di-Pertuan Agong or the Ruler of a State and all civil cases by or against the Yang diPertuan Agong or the Ruler of a State notwithstanding where the cause of action arose.

This Article already mentions that action can be sought against a ruler in his personal capacity in Court of Rulers. In this case Iskandar has canceled all the previous arrangements about their marriage and it was actually under his personal capacity or his own personal profit, therefore the breach of promise to marry by Iskandar was under his own personal capacity, so that Kelly has the right to bring the case to the Court of Rulers. This article does not state specifically who can sue a Ruler. The provisions of the Article 182 emphasize on the fact that the Special Court has exclusive jurisdiction to try cases by or against the Yang di-Pertuan Agong or the Ruler of a State. It is significant to note that Article 182 does not mention the word “citizen”, “non-citizen”, or “person”.

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In the case of Faridah Begum, Judge Anuar Zainal Abidin had stated that she can sue although she is not a citizen of Malaysia because this section did not clearly mention that only a citizen can sue a ruler. So as in the case of Kelly, although she was born in Vietnam and not a citizen of Malaysia, she can sue Sultan Iskandar in his personal capacity in the Court for Ruler in Malaysia. (c) Article 183: (1) Pertuan Agong or a Ruler except

No action to be instituted against the Yang diwith the consent of the Attorney General

personally. (2) against the Yang di-Pertuan Agong

No action, civil or criminal, shall be instituted or the Ruler of a State in respect of anything done

or omitted to be done by him in

his personal capacity except with the consent of

the Attorney General personally. Meaning that, if someone got the consent from the Attorney General, they have the right to sue the ruler. In the case of Faridah Begum she got the consent from the AG although she is not a citizen of Malaysia. So, if Kelly got the personal consent from the AG she may sue Sultan Iskandar although she is not a citizen

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As a conclusion, Kelly shall have her right to sue Sultan Iskandar to claim for the monetary and exemplary damages suffered in the course of preparation of the marriage and the wide publicity made in Vietnam since she was a model and well-known. Besides that, she sued Sultan Iskandar in his personal capacity not his official capacity and as I mention before, art 181 (2) stated that we can sue ruler in their personal capacity. In addition, although she is not a citizen she still can proceed with her summons because art 182 don’t even state that a non citizen cannot sue a ruler.

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Tutorial question 4 The Court Martial and Court for Rulers are the only courts empowered to impose sentence of death. Explain about the special features of the Court Martial. 1) Definitions of the terms that is use in Court Martial. a) S.2 •

Armed forces: includes regular forces and volunteer forces of Malaysia and any other forces which may be declared by the YDPA from time to time to be armed forces. Meaning that, all the regular force and voluntary are armed forces. If you want to know, regular force consist of army, navy and air force while the example of voluntary force is ‘askar wataniah’

•

Officer: any person of or above the rank of midshipman or officer cadet who has been appointed to or commissioned in the armed forces and (subject to such adaptation and modifications as may be prescribed by any written law or the conditions of service relating to such appointment, secondment, attachment or loan) any officer of naval, military or air forces of a foreign country duly appointed, seconded, attached or on loan to the armed forces. Midshipman means any naval that their rank

is lower than lieutenant .Officer also had given meaning that any armed forces that had been appointed, promoted, attached to a department or on temporary period to the armed forces.

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•

Servicemen: any person other than officer who is enlisted in the regular forces and (subject to such adaptation and modifications as may be prescribed by any written law or the conditions of service relating to such appointment, secondment, attachment or loan) any servicemen of any naval, military or air forces of a foreign country duly appointed, seconded, attached or on loan to the regular forces. Their rank in each type of army is differing.

For example: i)

In the army: below sergeant

ii)

In the air force: below general officer

iii)

In the navy: below captain

b) S.3. •

Active service: it means that it is engaged in operations against an enemy, or in a country or territory outside the federation for the preservation of life or property or is on military occupation of a foreign country and in relation to a person means that he is serving in or with such a force which is on active service.

Meaning that operations against an enemy in our country or abroad for rehabilitation of life or property or sending for mission such as mission to give aid in the war on military occupation of a foreign country. Read with sec.88 (4) 33

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2) Jurisdiction of the court to try: •

S.103 (1) – to try any person subject to service law for any offence which is triable by courtmartial.

Meaning that, as long as the army is in service, he is under court martial.

•

S.103 (4) – a court martial shall not, unless it consists of at least 5 officers, try any offence for which the maximum or only punishment with death.

If the punishment involving death sentence, the bench sitting for court-martial shall consists at least 5 officers if not, sentence for death cannot be granted. 3) Decision of the court martial: •

S.112 (3) – a finding of guilty where the only punishment which the court can award is death shall not have effect unless it is reached with the concurrence of all members of the court; and 34

where, on such a finding being come to by majority of the members, there is no such concurrence, the court shall be dissolved and the accused may be tried by another court martial.

If the sentence involving of death but not everyone in the court agreeing that the person should be imposed death sentence, the court shall be dissolved and the accused need to be tried by a new court martial.

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S. 112 (4) – where the accused is found guilty and the court has the power to sentence him either to death or to some less punishment, sentence of death shall not be passed without the concurrence of all members of the court. Meaning that, if the courts want to impose death sentence, all the courts members should agree with the decision. It needs to be a unanimous decision.

4) Confirmation of death sentence: •

S.127 (1) – a sentence of death which has been confirmed shall not be carried into effect unless approved by the YDPA. 35

The general rule is the death sentence only shall be approved by the YDPA.

But there is exception where we can withdraw or waive this general rule whereas if it in the interest of discipline and security, the conforming officer may imposed the sentence at that time. For example, if it involved emergency cases such as betrayed to the country. The accused had conspiracy with the communist and he had found guilty. He also had killed many people. The court martial shall imposed him to the death and don’t have to wait for the approval from the YDPA.

•

S.127 (2) – s 127 (1) shall be waive if is in the interest of discipline and for the purpose of securing the safety of the force which the person sentenced in present, that the sentence should be carried out forthwith and the confirming officer states that opinion in the minute confirming the sentence.

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5) Punishment The exclusively punishment provided for the armed forces is stated under Section 89 (2) (a) and Section 90 (2) (a). 36

Section 89 (2)(a) provided punishment of officer in the following scale, those are death, imprisonment less than 14 years, dismissal with disgrace, dismissal, forfeiture or reduction to the rank, dismissal from the ship which he belongs, fine, serious reprimand, offence involves expenses or loss or damages or stop pages. While Section 90 (2) (a), provided punishment of servicemen according the scales listed such as death, imprisonment less than 14 years, work dismissal, on probation not exceeding 2 years (observation), punished if active servicemen, reduction to the rank, warrant officer or non-commissioned officer forfeiture of seniority of rank, fine, reprimand, forfeiture of good conduct badges, offence has occasioned any expense, loss or damages, stoppages

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TUTORIAL QUESTION 5

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IN THE NATIVES COURT OF SARAWAK, ONCE A DECISION HAS BEEN MADE, CAN THE UNSATISFIED PART APPEAL? IF YES HOW, IF NO, WHY? Court’s hierarchal

Native Court of Appeal

Residents Native Courts

District Native Courts

Chief’s Superior Court

Chief’s Court

Headman’s Court

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•

s.13 (1) stated that appeal shall be brought in the Native Court of Sarawak from the: a) Headmen’s Court to the Chief’s Court b) Chief’s Court to the Chief’s Superior Court c) Chief’s Superior Court to the District Native Court d) District Native Court to the Resident’s Native

Court e) Resident’s Native Court to the Native Court of Appeal. All the matters in the s.5 (1) and s.5 (2) only shall be appeal from the

Headmen’s

Court

until

Chief’s

Superior Court whereas the decision of the Chief’s Superior Court will be final and conclusive except the case involving land disputes. This type of case shall be brought to Native Court of Appeal.

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1) Definitions of native. a) Art 161A(6)(a) FC:  First and foremost, according to Art 161A (6) (a) of the Federal Constitution native can be defined as a citizen, either belong to one of the indigenous (originating in and characterizing a particular region or country) races to the state or mixed blood deriving exclusively from those races which is it may come from father or mother. Meaning that a native must be: •

A citizen

•

Either belongs to one of the indigenous races to the state or

•

Mixed blood delivering exclusively from those races.

b) Art 161A(7) FC:  The word ‘races’ in that Art is specified by Art 161A (7) where the races are Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayan, Kalabits, Kayans, Kenyahs (including Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.

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2) Matters that cannot be appeal to DNC. •

S.5 (1): A Native Court shall, subject to sec.28, have jurisdiction over-

(a) case arising from the breach of a native law or custom (other than the Ordinan Undang- Undang Keluarga Islam, 1991, or the Malay Custom of Sarawak) in which all the parties are subject to the same native system of personal law: Meaning that breach of native law or custom- all parties are same native. Case involving native law or custom other than Muslim and Malay (All parties are native)- involve belong same ethic group and race. (b) Cases arising from breach of native law or custom (other than Ordinan Undang- Undang Keluarga Islam, 1991, or the Malay Custom of Sarawak) relating to any religious, matrimonial or sexual matter where one party is a native. Meaning that cases breach of native law or custom which relating to religious, matrimonial, or sexual matter but with different native such as one party native and one non-native and mixed married. (c) Any civil case, not being case under the jurisdiction of any of the Syariah Courts constituted

under

the Ordinan Mahkamah Syariah, 1991, in which the value of the subject matter does not exceed two thousand ringgit and all parties are subject to the same native system of personal law. Any civil case out of Syariah Court jurisdiction value subject matter not exceed 2000 ringgit and all parties with same native.

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Kuala Lumpur. Tel: 03-2147 5692 / Fax: 03-2147 5690 Email: [email protected]

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d) any criminal case of a minor nature which are specifically enumerated in the Adat Iban or any other customary law by whose custom the court is bound and which can be adequately punished by a fine not exceeding that which, under section 11, a Native court may award, and Any criminal case of minor native specifically in the Adat Iban or any other customary

law where

the power to punish to fine not exceeding under sec.11. (e) any matter in respect of which it may be empowered by any other written law to exercise jurisdiction. Any other matter empowered by written law. Proviso Any proceeding is about paragraph (b) or (e) or under subsection (2) are to have good relation between different communities or to have security and safety to stay the proceeding, application of more than one native system of personal law, or for the other reason the parties should have the remedies as they may have in the other courts, to order that the proceeding shall be stay or not. In certain case, the Resident shall make a report to the State Attorney –General, who may confirm or not (set aside) any such order .

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•

(b) Sec.5 (2) In cases relating to any matrimonial or sexual

matter in which a Native Court has jurisdiction where the parties are of different sexes and are not of the same community, or are by virtue of any written law deemed to belong to or be identified with different communities, the Native Court shall, unless the contrary is expressly provided in any written law, be bound by the law or custom of the community of which the woman is or is deemed to be a member. Cases relating to any case about matrimonial or sexual matter with the one parties are different not with same community. This party will be bound by the law or custom of the community follow which what the party for woman. Proviso Woman embraced in Islam will be bound by Islamic Family Law Ordinance, 1991.

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Matters that shall be appeal. a) S.12(1) Native Courts Ordinance (Sarawak):  Can appeal in any ground if it involves question of native law/ custom alone.  Also if it involves question of fact @ fact+ law @ against a sentence of imprisonment. Meaning that, a native may appeal on any ground of appeal if it involves question of native law or custom alone but if it involves question of fact or question of fact + law or against a sentence of imprisonment, the appeal need to get permission or leave from the Resident. b) S.12(2):  If appeal is made from RNC, appeal lodged with the resident and in other every case, appeal lodged with DO (within the district)  S.12(2)(a) - If there is no ground stated in Native Courts Ordinance (Sarawak) 1992, the Resident, District Officer, or anybody shall ascertain (make sure) and record the grounds of appeal. 44

For example the parties did not mention the time the appeal had been made. So, the District Officer shall ask the parties involved and records the grounds of appeal.

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 S.12 (2) (b) - If the DO is not around, he may authorized any other person to act like him, as the appeal from himself. If the District Officer (DO) is not around, he may ask other person to act like him as the appeal from himself. In other word the DO may delegate his power to other person and then the other should take the record and give it back to the DO. c) S.12 (3):  An appeal shall be made in writing within 30 days from the date of the decision.

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If the parties want to make an appeal, they shall make the appeal within 30 days after the decision had been made and the appeal should be in writing

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4) Power of the appellate court. a) S.14(1):  Dismiss the appeal  Rehear the case itself or order the case to be heard by the lower court.  Hear further evidence or order the lower court to do so. 46

 Order a retrial  Set aside, reverse, amend or vary the decision  Make an order that the court think that it is just. 5) Further investigations and appeal. a) S.15-An appellate court other than Native Court of Appeal may, upon application or of its on motion, investigate any case heard by an inferior court and may upon such investigation exercise any of the powers which it might have exercised had there been an appeal: Provided that there shall be an appeal from any exercise of the powers hereby conferred in a like manner and subject to the like conditions as if such powers had been exercised on appeal. Meaning that, any appellate court may investigate any case decided by the lower court except Native Court of Appeal by it’s own motion.

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TUTORIAL QUESTION 6(3) 47

Suparjo studied his law degree in Islamic Science University of Malaysia. When he was in third year, he was caught against the prohibition of smoking in the hostel and stealing money. The Disciplinary Board found him guilty and he was fined suspended for one semester and completed his degree later. He then read in chambers for nine months in Kuala Terengganu. During his call to the Bar, the State Bar Committee objected his petition due to his previous criminal record. In advising Suparjo, consider the following issues: •

Examine the status of decision issued by the Disciplinary Board.

•

Justify the legitimacy of the State Bar Council’s objection. Would the answer be different if Suparjo was found bankrupt due to his excessive debt of credit card?

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ANSWER I was asked to advise Suparjo whether the State Bar Committee has the right to object his petition due to his previous criminal record. First, we need to know whether Suparjo is under qualified person or not. According to s.3 of the Courts of Judicature Act 1964, ‘qualified person’ means any person who: a) Has passed the final examination leading to the degree of Bachelor of Laws of the University Malaya, the University of Malaya in Singapore, the University of Singapore or the National University of Singapore. b) Is a barrister-at-law of England; or c) Is in possession of such other qualification as may be notification in the Gazzette be declared by the Board to be sufficient to make a person a qualified person for the purposes of this act;

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According to this section, Suparjo is a qualified person and he deserved to be an advocates and solicitor because he had completed his degree and he also had read in chambers for nine months in Kuala Terengganu. He had satisfied the conditions and the State Committee Bar should not object his petition. Although s.16 (2) had stated that: If the Attorney General, the Bar Council or any state Bar Committee intends to object to any petition, there shall be served on the petitioner and filed in the Registrar’s Office, not less than three clear days or any shorter period as the court may allow before the date fixed for hearing the petition, a notice of objection which shall set out in brief terms the grounds of objection. Meaning that, the State Bar Committee has the right to file petition but they need to state the reason why they want to file the petition. In this case, the State Bar Committee had objected Suparjo’s petition because they said that after they investigate on Suparjo, they found that Suparjo had caught smoking and stealing the money and because of that reason, he had been fined suspended for one semester. The State Bar Committee think that Suparjo do not have the right to file the petition. To be qualified for admission of advocates and solicitor he also is needed to have a good character where in s.11 (1): (b) Is of good character But, even though Suparjo had been caught and suspended, it’s just a disciplinary action not criminal conviction. The High Court may in its discretion admit these people to be an advocates and solicitor,

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s.10: (a) Any qualified person; and (b) Any articled clerk who has complied with section 25: As I said before, Suparjo is a qualified person and he deserved to apply as an advocates and solicitor. For the conclusion, the objection by the State Bar Committee shall not be sustainable because Suparjo did not do anything that contravene to the act to be an advocates and solicitor because although he was caught, it’s just disciplinary action not criminal conviction. 2) If Suparjo was found bankrupt due to his excessive debt of credit card, the objection is legitimate because s.11 (1) (b): (ii) Has not been adjudicate bankrupt and has not been found guilty of any of the acts or omissions mentioned in paragraph (a), (c), (d), (e), (h), (k) or (l) of subsection (6) of section 33 of the Bankruptcy Act 1967 This act clearly mentions that if someone in bankruptcy, he cannot be admitted as an advocates and solicitor. In this case, Suparjo was found bankrupt, so, if the State Bar Committee objected his petition due to this reason, the objection can be sustained.

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