Gun Control laws. US Supreme Court taking a new look

Gun Control laws. US Supreme Court taking a new look AP State of gun control laws in US WASHINGTON – The Supreme Court says it will take up a challenge to Chicago's ban on handguns, opening the way for a ruling that could set off a vigorous new campaign to roll back state and local gun controls across the nation. Victory for gun-rights proponents in the Chicago case is considered likely, even by supporters of gun control, in the latest battle in the nation's long and often bitter dispute over the Second Amendment right to keep and bear arms.

A ruling against the city's outright ban could lead to legal challenges to less-restrictive laws across the country that limit who can own guns, whether firearms must be registered and how they should be stored. The case is to be argued early next year. Last year, the justices struck down a prohibition on handguns in the District of Columbia, a city with unique federal status, as a violation of the Second Amendment. Now the court will decide whether that ruling should apply to local and state laws as well. The court has previously said that most, but not all, rights laid out in the Constitution's Bill of Rights serve as checks on state as well as federal restrictions. Separately, 44 state constitutions already enshrine gun rights. Though faced with potential limits from the high court on their ability to enact laws and regulations in this area, 34 states weighed in on the gun- rights side before the justices agreed to take the case Wednesday, an indication of the enduring strength of the National Rifle Association and its allies.

In the gun case, outright handgun bans appear to be limited to Chicago and suburban Oak Park, Ill. But a ruling against those ordinances probably would "open up all the gun regulations in the country to constitutional scrutiny, of which there are quite a few," said Mark Tushnet, a Harvard Law School professor whose recent book "Out of Range" explores the often bitter national debate over guns. Already, Alan Gura, who led the legal challenge to the Washington law and represents the plaintiff in Chicago, is suing to overturn the District of Columbia's prohibition on carrying firearms outside a person's home. Illinois and Wisconsin have similar restrictions.

In voiding Washington's handgun ban last year, Justice Antonin Scalia suggested that gun rights, like the right to speech, are limited and that many gun control measures could remain in place. Ultimately, said Tushnet, the court will have to decide, possibly restriction by restriction, which limits are reasonable. "It's very hard to know where this court would draw the line between reasonable and unreasonable," he said. NRA Executive Vice President Wayne LaPierre said he hopes the court rules that "core fundamental freedoms like speech, religion and, we believe, the right to keep and bear arms are intended to apply to every individual in the country." Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, said the court's decision to take up the new case was unsurprising in light of last year's ruling.

These cases should "take the extremes off the table," Helmke said, referring to bans on guns and unlimited gun rights. "What's critical for us is how the court goes about fleshing out what the limits are." Mayor Michael Bloomberg of New York, which under state law requires handgun permits and a safety course, said he hopes the court brings clarity to gun laws. "My hope is that they will decide that reasonable restrictions, which I think is the way most reasonable people in this country think, are appropriate," Bloomberg said.

The 7th U.S. Circuit Court of Appeals in Chicago had upheld the gun bans as legitimate expressions of local and state rights. Judge Frank Easterbrook, an appointee of President Ronald Reagan, wrote in the ruling that "the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule." "Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon," Easterbrook wrote. Evaluating arguments over the extension of the Second Amendment is a job "for the justices rather than a court of appeals," he said. Justice Sonia Sotomayor, then an appeals court judge, was part of a three-judge panel in New York that reached a similar conclusion in January. The high court took the suggestion Wednesday. Judges on both courts — Republican nominees in Chicago and Democratic nominees in New York — said only the Supreme Court could decide whether to extend last year's ruling throughout the country. The New York ruling also has been challenged, but the court did not act on it Wednesday. Sotomayor would have to sit out any case involving decisions she was part of on the appeals court. Although the issue is the same in the Chicago case, there is no ethical bar to her participation in its consideration by the Supreme Court. She replaced Justice David Souter, who dissented in the 5-4 Washington case, so the five-justice majority remains intact. Several Republican senators cited the Sotomayor gun ruling, as well as her reticence on the topic at her confirmation hearing, in explaining their decision to oppose her confirmation to the high court.


The case is McDonald v. Chicago, 08-1521.



(C) 2009 AP: MARK SHERMAN, Associated Press Writer Mark Sherman, Associated Press

Practicing Law in Tough Times

Practicing Law in Tough Economic Times


It has been impossible to escape all of the news and commentary associated with the changes in our economic landscape in the United States (and the world) in 2008. Bankruptcies, frozen financial markets, bailouts and the largest of all Ponzi schemes dominated the year-end news. Unfortunately the new year promises no immediate relief.

Some veteran lawyers reminded me of the old adage that lawyers thrive in good times or thrive in bad times, as long as they are willing to do different sorts of work. Their confidence is uplifting, even while one wonders just how realistic it is. The large number of lawyer layoffs from law firms during the last half of 2008 has to catch one’s attention, along with the number of law firm hiring freezes. Many with law degrees who migrated to the financial services industry are poised to return to the legal industry. There are a lot of intelligent and accomplished lawyers looking for work right now. Some of them may end up doing the same type of legal work that you do.

So, while we hope for the best, we must plan for the worst (or at least, the bad.)

We all understand the basics of practicing law in a tightening economy. The prudent lawyer will pay close attention to overhead and expenses, as well as accounts receivable. The firm may have to enact policies about how long it can continue to represent non-paying clients. Throughout this year in this Oklahoma Bar Journal space, look for more focus on practicing law in tough times.

There has been a lot written on this topic recently. To start off the year, I have decided to refer you to some of the insightful comments made by some of the most highly regarded experts in law practice management in a pair of great articles.

One of the best articles about recession-proofing a law firm that I have read is called Weather the Storm. It was published in The National, the official publication of the Canadian Bar Association, in its April/May 2008 issue and warned that U.S. law firms were on the verge of battling unprecedented economic pressures. Too bad this publication wasn’t more widely circulated at that time south of the Canadian border. The co-authors are Gerry Riskin and Robert Millard, both partners in Edge International, an international management consulting firm. (Your attention is also directed to Mr. Riskin’s popular blog, Amazing Firms, Amazing Practices, online at www.gerryriskin.com.)

It is my goal to get all of my readers to also read this article. Therefore I will provide you with their list of seven key strategies to recession-proof your law firm and the link to the online version of the original article so you can go there to understand their points better.

1. Display strong leadership
2. Ramp up the frequency of financial data reporting
3. Make hard decisions quickly and humanely
4. Focus practice and client team leaders on short-term action plans
5. Involve your clients
6. Manage internal expectations
7. This too shall pass: Keep a balance with your long-term strategy

Read the rest at tinyurl.com/a8renu.

Small firm lawyers may think this advice only applies to the large firm, but I think the advice is universal. In particular, small firm lawyers and solos tend to delay compiling financial reports. It is critical that you review your financial position frequently during 2009 (and thereafter.) Know who is falling behind on their billing. Know if you are delaying payments to your creditors because of cash flow issues.

Another great article was put together by my friend and colleague Dennis Kennedy. It was published in the November 2008 edition of the e-zine Law Practice Today, which was a theme issue on dealing with an economic downturn and can be found online at www.abanet.org/lpm/lpt/archives/november08.shtml or tinyurl.com/9lfal4. The title is “What Should You Do Now? A Roundtable Discussion on Law Practice in a Time of Great Economic Turmoil,” moderated and edited by Dennis Kennedy, with participants M. Tom Collins, Jordan Furlong, Patrick Lamb, Bruce MacEwen, Patrick McKenna, Edward Poll, Allison C. Shields and Merrilyn Astin Tarlton. I will let you read their biographies in the original article, but Dennis assembled a very impressive group.

The remaining material in quotations is all taken from the above-referenced article.

So how will you know when it is about to get really bad?

Merrilyn Astin Tarlton says, “[I]f you’re watching to see when/if it will crack, you’re too late. That’s like waiting until the pandemic hits your neighborhood before getting vaccinated! Start now assessing the changes that must be made in your practice in order that it may thrive in the future. Admit it, you know what they are. Step back and take a big conceptual look at your area of practice, the industries you serve, the geographic implications, issues related to energy and economics.”

Patrick McKenna notes:

“There are probably a number of obvious signs:

* Your rates become subject of continued discussion
* Number of new matters sent to your firm becomes reduced
* Deals and projects are continually postponed
* Clients stop paying promptly
* Client calls are not being returned
* Invitees don’t attend your functions
* Access to key decision-makers starts to decrease
* You even stop receiving those unexpected RFP’s
* Your phones stop ringing”

That is a pretty scary list! But I think few deny we are in significant trouble at this point, so let’s discuss solutions.

McKenna notes that some immediate solutions include a renewed focus on client needs and wants and considering innovative means of working with clients, even to the extent of letting an associate go work for the client for a time.

Allison C. Shields says, “The key… is to take action based on what the current reality is by planning and taking advantage of opportunities that are arising now. Clients that are concerned about how this economy is affecting their business may have untapped legal needs that can help them to feel (and be) more secure.”

Patrick Lamb states, “In any chaotic situation, there are huge opportunities, so the top priority needs to be having a strategic plan. If you could grow the number of clients and amount of client spend[ing] you capture, wouldn’t you seek that, especially in this environment? But those things are clearly possible if you change your business model. Marketing and business development go hand in glove with the strategic review of your firm.”

Ed Poll agrees. He says, “The best strategy, I believe, is to spend time to develop a strategic plan. The time spent usually is short and worth far more than the cost of the time spent. When you have a plan that you accept and understand, you will be working from a roadmap. When you work from a roadmap, fear and panic are reduced considerably.”

Merrilyn Astin Tarlton concurs. She counsels, “Don’t panic! Figure out which are your most critical resources: specific clients, lawyers, employees, offices, etc. And lock them up. Figure out what you can afford to lose and either eliminate them now (if you can afford to lose them, why do you have them in the first place?) or plan for their elimination.”

I have collected a lot more interesting opinions from experts, but I do not want to overwhelm anyone and I really want you to have time to read the articles I have referenced. So let’s have one more quote from Ed Poll on the fundamentals.

Ed Poll says, “Always, first, look at cash flow. Look to see that collections stay on pace. This is the first telltale sign. Lawyers traditionally have failed to pay close enough attention to this, wanting to do the work. When they turn around to realize that a client hasn’t paid the bill, they are already into the problem so deeply that they feel compelled to continue in the hope that a successful outcome will cause the client to pay the now increased billing. Seldom does this occur. If you have to take a loss, it’s better to take a small one earlier in the representation, freeing up your time to seek a new, better client.”

Finally, while it may be a bit counterintuitive in a credit crunch to discuss credit cards, I think that this is an important topic. I’ve noted before, and will repeat here, that any law firm that represents very many individual consumer clients should accept credit cards. There’s simply no excuse for not allowing your clients the opportunity and convenience to pay by credit card, especially when you are denying yourself the opportunity to receive an attorney fee payment when the client’s bank account may be low.

Another aspect of accepting credit cards is that many people now have ATM cards for their bank account that are also debit cards. So, if a client has convinced you that they have to make regular monthly payments on attorney’s fees, either initially or after a balance has been incurred, why not have them sign an agreement to have the payments charged against their bank account on the day they specify each month? You have a bit more security for the payment and they don’t have to write and mail a check.

Making certain that you have an adequate retainer is very important. I see no objection to receiving a retainer fee by credit card as long as you make sure that the funds are deposited directly to your trust account where they remain until they are earned. You can use your local bank to figure out how to set this up or get information about the OBA Law Firm Merchant Account program for our members by calling (866) 376-0950 or visiting www.affiniscape.com/oklahomabar.
CONCLUSION

Maybe things won’t be as bad during 2009 as many are predicting now. But as the cliché goes, it’s better to be safe than sorry. The immediate future may be tough. We need to be cautious and prudent, but continue to do good work for our clients as lawyers have always done. We should also not forget that economic pressures will add even more stress to many of our clients when often their legal matters are stress-inducing by themselves. So we will likely have some opportunities to be kind and understanding. Lawyers like to be known as counselors. We may have lots of additional opportunities for counseling in the coming months.



Originally published in the Oklahoma Bar Journal Jan. 10, 2009 - Vol. 80; No. 1.
By Jim Calloway, Director, OBA Management Assistance Program

How not to pay Oil royalties?

Texas Oil and Gas Royalty Trial Begins

An oil and gas royalty trial has begun in Texas and jurors will be asked to decide if the defendant owed the plaintiff royalties or if the plaintiffs committed fraud.

M & M Resources and Energy Land Resources filed a lawsuit against DSTJ Corp in 2006, claiming the former had not received 7 months of oil and gas royalties on an area well that was later shut down. The 21 oil and gas leases were assigned to DSTJ for a 0.5 percent royalty. Of those leases, four were located in a region of land owned by several residents of Jefferson County, known as Blackman Tract. DSTJ, according to court papers, conducted drilling operations at the well, which was functional from October 3rd until the time it was sealed by the Texas Railroad Commission in March 2004. Texas Oil and Gas Roylaties DisputeM & M Resources allege that DSTJ failed to pay any royalties to them despite their drilling operations and production from the Quail well. According to the lawsuit, this failure constituted a default of obligations under the contract.

In response, DSTJ filed a countersuit which alleges M & M Resources was “engaged in shady dealings”. The countersuit also alleges M & M included “improper lease provisions” in the agreement, effectively preventing DSTJ from pooling the tract. DSTJ claims it had to shutdown the well due to the fraudulent inclusion of the lease provisions.

Jurors will now have to decide whether M & M Resources' alleged fraud led to the well being shutdown or if DSTJ should pay M & M Resources oil and gas royalties for the 7 months between October 2003 and March 2004, when the well was functioning.
Oil and Gas Companies May Deny Royalties

Denying royalties can be done in a number of ways. Oil and gas companies may report production levels that are much lower than the actual figures in order to avoid paying royalties. They may also inflate post production expenses to wriggle out of having to pay royalties.

Landowners in Texas who lease their lands for drilling have very few options when they are denied the royalty payments that are rightfully theirs. That is because, in Texas there is no single authority in in charge of ensuring that landowners receiver their dues. Due to the lack of such authority, owners are often at the mercy of oil and gas companies who may delay and deny royalty payments. In such cases, owners may have no other option but to consult with an oil and gas attorney to receive the royalties due to them.


Source: June 4, 2009 by Houston Trial Lawyer

FDA rule on drug labeling attracts ire from lawyers

New FDA labeling rule could be lawsuit shield
FDA rule on drug labeling attracts praise from drugmakers, ire from lawyers


NEW YORK (Associated Press) - Government regulators have issued new rules designed to keep drug warning labels clear and concise, though some say the new guidelines would also shield drugmakers from lawsuits.

The regulations from the Food and Drug Administration, which were released Thursday and take effect next month, explain when drug and medical device companies are responsible for rushing out safety updates on their products.

The Pharmaceutical Research and Manufacturers of America welcomed the announcement, saying it provides much-needed clarity. But trial lawyers who represent consumers said it will provide legal protection to companies that withhold information on their products' risks.

In recent years, drugmakers have added warning information to their labeling more quickly, even when the scope of the risks was unclear. This strategy helped protect companies from allegations that they didn't act quickly enough to inform patients, according to Dan Kracov, an attorney with Arnold and Porter.

"The thinking was 'We need to get this information on the warning label now otherwise we're going to get hit over the head with product liability suits,'" said Kracov, who represents pharmaceutical companies.

The new FDA rule should protect companies from such lawsuits. It states that companies are only obligated to rush out warnings when they have clear evidence of a serious risk that hasn't been reviewed by FDA. In all other cases, the rules state that FDA will review the information and consider a new label at its own pace.

FDA officials said the changes would help ensure that companies are not haphazardly adding warning information to their products.

"The key point is this rule offers doctors and patients clarity and confidence that labels mean something and can be relied on," said Randall Lutter, FDA deputy commissioner for policy.

However, trial court attorneys said the rule lets companies off the hook on alerting consumers to the risks of their products.

The American Association of Justice, a professional group for attorneys, argues the new rule requires an excessive standard of scientific evidence before companies are required to update their labels. The group's lawyers say the new rule will make it easier for companies to claim they were not obligated to alert consumers.

"When consumers are harmed they will have no way to get recourse from manufacturers," said Gerie Voss, a director with the American Association of Justice. "This rule is going to be a total shield against all 'failure to warn' claims."

Voss said many of the recent lawsuits against drugmakers, such as the Vioxx case involving Merck & Co. Inc., would not be possible under the new rules. The company has agreed to pay $4.85 billion to settle with patients who suffered heart attack or stroke and alleged the company failed to warn them about those risks.

Voss said the new FDA rule is part of a larger effort across the Bush administration to shield companies from lawsuit.

Since 2005, the administration has proposed dozens of regulations that limit lawsuits against pharmaceutical makers, automakers and other companies by ruling that federal regulations trump state laws.

Product liability lawsuits are usually filed in state courts, where juries often are more receptive to claims against corporations.

The Supreme Court is scheduled to wade into the issue later this year.

How do you talk to your clients about fees?

How do you talk to your clients about fees?


When my clients tell me that they're having difficulty getting paid or that they are having problems with an alternative billing arrangement with their clients, the first two questions I always ask are:
"What did you tell your client about your fees when you first met with them?"
and
"What does your engagement agreement say about this issue?"
Almost every problem related to fees, billing or getting paid relates back to the original meeting with the client and how well the fee arrangement was explained.
Lawyers are now beginning to experiment with alternative billing arrangements, and that means that they need to change the way they speak to clients about their fees. Under an hourly billing system, the client is quoted an hourly rate. Sometimes a client will request an estimate of the total legal fees that are likely to be expended, but many clients won't. Even if an estimate is given, when the estimate is exceeded, the bill will reflect the number of hours worked on the client's behalf. While this may be 'easy' for the lawyer to explain and to demonstrate to the client, it opens up discussions about why certain tasks took so long to perform, or why the lawyer devoted so much time to a specific item. These conversations don't occur until after the work has been performed, and they place the emphasis on hours, rather than on outcome and the services provided.
By contrast, with alternative fee arrangements clients are likely to ask more questions at the outset, if only because they are used to hourly billing. Some clients may be concerned that the move away from hourly billing is a move made solely for the lawyer's benefit, and that the client may ultimately pay more for the same services. Other clients just naturally want to understand what they're paying for and how much it will cost them.
Too many lawyers are afraid to talk to clients about fees; they rush through the discussion because it's uncomfortable and they are afraid that the client won't accept the fee. This is a missed opportunity. Any discussion about fees is an opportunity for the lawyer to discuss the value of the services the lawyer is providing and to clarify the client's goals and objectives.
One good way to talk to clients about fees is to use written tools such as pricing sheets and flow charts which can help clients understand the steps or stages of the process, the value each task or stage adds to the engagement and how it relates to the client's goals, and how the fee relates to each task or stage in the process. These tools can also help the lawyer explain the variables that may affect the fee and why some engagements are more expensive than others - in terms that the client can relate to, rather than in terms of the number of hours expended by the lawyer or law firm.
Written flow charts and pricing sheets not only help the client understand the process and the value the lawyer provides, but they discourage negotiating on price and requests for discounts. Psychologically, when the client sees a written price sheet, the prices seem more concrete and less 'made up.' And written price sheets can be helpful for new lawyers, solos and lawyers in small firms who might be inclined to negotiate against themselves or immediately discount their prices.


Legal Ease Consulting, Inc. Allison C. Shields

Listening During Settlement Negotiations

Listening During Settlement Negotiations



Every day, I speak to insurance claims adjusters on the phone attempting to resolve personal injury cases. It is dangerous to try to put people with complex goals and motives into simple boxes. But let's do it anyway.

There are three categories of insurance adjusters: (1) "It is not my money, I just want to get this file off my desk one way or another and keep my job"; (2) "It is not the insurance companies' money, it is my money. Moreover, all claimants are liars and I'm dying to litigate these cases over the phone with you in an effort to repeatedly underscore my view of personal injury victims generally;" and (3) "I know my job is important, I am competent, and I evaluate cases fairly on a case-by-case basis. I'm not paying more on a case than I think it is worth but I'm also not afraid to pay it what it is worth." Luckily, most adjusters fall into category one or three.

The Category 2 adjusters are pretty difficult to have a meaningful conversation with because they are so dogmatic in their thinking that is generally limited to Colossus and its brethren. But I think it is very important to fully hear out Category 1 and Category 3 adjusters. An insurance adjuster is a human being (save your jokes) like everyone else and wants not only to articulate their position but also to feel like the lawyer on the other end of the conversation is listening to them. The human psychology is to just shut them down because, subconsciously, attorneys think that the more the adjuster is able to articulate that hurts our case the more closed minded the adjuster will be. But just the opposite is true. Respect begets respect and you more likely to reach common ground with the perception that you fully considered all sides of the story in making your arguments.

A few more random thoughts on negotiating with insurance adjusters, in no particular order:

1. The Adjuster Is Not Your High School Girlfriend: If negotiations end badly, agreed to disagree and file suit. Do not get mad at the claims adjuster. You can remind the adjuster that you have facts about the case (the quality of the client or whatever the facts may be) that reviewing the medical records could not possibly give the adjuster. If this is the problem, it is obviously not the adjuster's fault that the medical records don't fully give a lens to the value of the case. Discovery can resolve this and, if it does not, this is why we have juries. Don't take it personally.

2. Send a Copy of Your Discovery and Complaint with Your Demand Package: The reality is that most personal injury lawyers have no interest in filing a lawsuit. If you are different, remind the insurance adjuster of this fact by including a Complaint and detailed discovery. For sample Complaints and discovery, visit the Personal Injury Lawyer Help Center for samples. (This will offend a few who think this is a declaration of hostilities. But I think most accept it for what it is, a message that you are ready to go if the case does not settle.)

3. Filing Suit Is Not a Declaration of War: This is particularly true in smaller cases. Most adjusters do not fear a lawsuit, so do not act like it is magic elixir you have to take away the adjuster's power. Acting like a lawsuit is a major event often underscores to the insurance adjuster that you are not an experienced lawyer because experienced lawyers file case on a routine basis.

4. Save the "I'm a Lawyer" nonsense: This is the great way to alienate an adjuster. It is also obnoxious.

5. Meet the Adjusters: This is hard to do in the real world. But I have visited a number of insurance companies during "Settlement Days" where companies try to settle a large number of cases at one time. My relationship with the adjusters I have met is always different than before we met.




http://www.tlrcblog.com/2007/03/articles/settlement-mediation/listening-during-settlement-negotiations/
by Ron Miller

Biotech - adequacy of drug information

US high court to decide on allowing Vioxx suits

From the AP:

US Supreme Court to consider allowing shareholder lawsuits over failure of Vioxx painkiller

Linda A. Johnson, AP Business Writer

TRENTON, New Jersey (AP) -- The U.S. Supreme Court will decide whether shareholders can sue Merck & Co. over whether the drugmaker provided adequate information about the risks of its former blockbuster painkiller Vioxx before it was pulled from the market.

The high court agreed Tuesday to review Merck's challenge to a federal appeals court's reinstatement of a class-action securities lawsuit.

Investors had accused Merck of providing misleading information or omitting information about the risks of Vioxx. A U.S. district judge dismissed the November 2003 lawsuit on grounds of a statute of limitations.

The 3rd U.S. Circuit Court of Appeals decided to allow the lawsuits and Merck appealed to the Supreme Court.

Vioxx was pulled from the market on Sept. 30, 2004, because it doubled risks of heart attack, stroke and death.

In a statement, Merck said the company is pleased the Supreme Court agreed to hear its appeal and to resolve the split among the circuit courts in their rulings on what constitutes proper notice to investors under securities laws.

"We believe that the District Court in this case correctly held that the intense public discussion of data surrounding Vioxx" had put investors on notice of the relevant issues long before Merck announced new scientific information and voluntarily withdrew Vioxx from the market, the statement said.

"The evidence shows that Merck properly informed the (U.S. Food and Drug Administration) and the scientific community about scientific data as it emerged," Merck wrote.

After it pulled Vioxx from the market, Whitehouse Station, New Jersey-based Merck was hit with a deluge of lawsuits from shareholders, patients and their survivors claiming Vioxx caused heart attacks and strokes, and from insurance plans seeking reimbursement for their costs for covering Vioxx prescriptions.

Merck is currently making payments to patients and survivors under a $4.85 billion settlement that ends lawsuits on behalf of roughly 50,000 patients who claimed Vioxx harmed them.

Lawyers for the shareholders did not immediately return a call seeking comment.

(This post is not updated)

Bar Council - it will be hard to defend rape cases

Bar Council vs rights groups over rape

©Malaysiakini The Bar Council has objected to a proposed amendment that would see rape by persons in a position of authority being treated as an offence, saying women could easily abuse the provisions should a relationship turn sour. The council is against the introduction of this offence because it is redundant and since existing law already defines rape as sexual intercourse against the will of the woman. It is further of the view that other proposed revisions to the Penal Code are not clear enough in relation in defining the circumstances of rape. Criminal law sub-committee chairperson V Sithambaram (left) said this could be easily abused by women when a relationship or marriage turns sour. “This proposed amendment is obviously designed to appease women’s rights groups (who have been) insistent on such an amendment. Amendments are easy to make but the repercussions must be considered and innocent men may be easily accused of rape,” he said.“Consent obtained by virtue of professional relationship or relationship of trust is vague and can easily be abused when a genuine relationship turns sour. This section can be used to exact revenge in a failed relationship.” Citing an example, he said a doctor (as superior) may be deemed to have raped his nurse who is his girlfriend if their relationship turns sour. “This will lead to a jail term of up to 30 years,” said Sithambaram, a criminal lawyer. He even cautioned that this new section could be used by a woman who offers herself to a man to obtain favours, but is unsuccessful. She may then accuse the man of rape. The provision may be used to “fix” a former boyfriend who refuses to marry a woman or even to blackmail him. The council’s views were presented at a roundtable discussion organised by opposition party DAP in the Parliament building today, to consider the report of a select committee on amendments to the Penal Code and Criminal Procedure Code. Other speakers at the three-hour discussion included Parliamentary Opposition Leader Lim Kit Siang, Baljit Singh of the Bar Council and Police Watch and Human Rights Committee legal adviser P Uthayakumar. The session was moderated by DAP MP M Kula Segaran. 'Hard to rebut' In the report tabled to Parliament in late April, the select committee had proposed an overhaul of the two codes, including splitting up the penalty for rape into two categories so that the courts are not bound by the minimum five-year jail term. Under the proposals, those convicted of rape could face up to 20 years in jail and/or whipping. Those convicted of aggravated rape could face a jail term of up to 30 years with a minimum of five years and/or whipping. Aggravated rape involves situations when the victim is hurt or put in fear of death; rape in the company and presence of other persons; rape of a pregnant woman; and rape by those in a position of authority due to professional relationship or other relationship of trust even with her consent. Sithambaram said the proposed amendments are not clear enough in deeming the rape of a pregnant woman as aggravated rape. He said knowledge of pregnancy would be relevant in determining this offence. “If the woman is two, three months pregnant, then it’s fine. What if she is just two, three weeks pregnant?” he asked. On another section that seeks to punish a husband for 'causing hurt or fear of death' to his wife in order to have sexual intercourse, Sithambaram suggested that this should only be applied when the wife is “actually physically hurt”. “It is easy for a woman to accuse her husband of putting her in fear of death or hurt, and very difficult for the man to rebut this as no physical evidence is needed for this accusation,” he said, adding that this section can be abused when the marriage is breaking down or has broken down. The select committee had rejected a request by women’s groups to classify marital rape as an offence under the Penal Code. As a compromise, it proposed the new section to deal with husbands who cause hurt or threaten their wives with death ir order to have sexual intercourse. If convicted under this section, the husband may face imprisonment for up to five years. Support for amendments Opposing the Bar Council’s views, lawyer Edmund Bon - who was present to represent human rights watchdog Suaram - said the section on rape by those in position of authority is needed, as there are many cases where employees are coerced into having sex with the employer. He welcomed the inclusion of the new section proposing to punish husbands for causing hurt or fear to force their wives to have sexual intercourse. DAP MP Teresa Kok, a member of the select committee, also disagreed with the council. She said women’s groups have received numerous complaints of rape by those in a position of authority. Women’s Development Collective executive director Maria Chin Abdullah rejected the council’s claim that the proposed amendment on rape by those in positions of authority was introduced to 'appease' women’s rights groups. She said there is “a very low” chance that women might cry wolf or abuse the section. Even if this happens, the prosecution would still have to prove its case in court. “Every thing is open to abuse, but criminal lawyers can argue this in court, they are so damned good! In Malaysia, only about 5 percent of rape cases are won (by survivors), so what are the lawyers afraid of?” she asked. The proposed amendment, she said, was intended to address the issue of bomohs and mediums misusing their relationship of trust with female clients and raping them on the pretext of healing them. On the objection to provision on husbands causing hurt or fear, Chin said the council should know that not all assaults result in or reveal injuries, and that the government has to recognise that rape does happen in a marriage. Asked if raping a pregnant woman without knowing of her condition should be considered aggravated rape, she said the issue is not about knowledge of the pregnancy. Whether or not a woman is pregnant, she should not have to endure such torture, Chin said. But where the woman herself does not know she is pregnant, she would be traumatised more if the rape results in a miscarriage. She argued that, if the rapist transfers additional pain to someone, then this amounts to aggravated rape and a more severe penalty should be imposed. Chin denied any clash between the Bar Council and women’s groups but felt that the council - based on its stance - does not understand the seriousness of rape.

Malaya - Right to choose counsel

On the right to choose counsel

©The Sunday Star Is the right to choose one’s lawyer an absolute right or a qualified right? SHAILA KOSHY explores this in the light of the recent decision to disallow the application for a Queen’s Counsel to represent a Malaysian company in the Federal Court. The case involving toll concessionaire Metramac Corporation Sdn Bhd and construction firm Fawziah Holdings Sdn Bhd has gripped Malaysians since the Court of Appeal judgment appeared in news reports on Jan 13. Public curiosity was tweaked when the names of former Finance Minister Tun Daim Zainuddin and prominent businessmen Datuk Halim Saad and Datuk Anuar Othman appeared in the Court of Appeal decision on the case. It peaked when Queen’s Counsel Cherie Booth applied for admission to the High Court of Malaya to represent Fawziah Holdings in the Federal Court under Section 18 of the Legal Profession Act (LPA). Her application for ad-hoc admission was objected to by Metramac, Daim and Halim, the Attorney General, the Bar Council and the KL Bar Committee. On June 15, a five-man bench of the Federal Court rejected her appeal. Chief Justice Ahmad Fairuz Sheikh Abdul Halim, in an oral judgment, held that while Booth had the special qualifications required under the LPA, her credentials were also available among local lawyers. As a result, public curiosity has now changed to public concern about a Malaysian’s right to choose a lawyer of one’s choice in a civil case. How is a litigant supposed to know who the local experts are when lawyers in Malaysia are not allowed to advertise? If a litigant can afford a QC and the QC is available for all the court dates, why should he or she be denied the right to have the lawyer of choice? Why should the opposing litigant fear the presence of a QC when all the QC does is present arguments and the final arbiters of the merits of the argument still lie in the hands of the court? While the court may be satisfied with counsel's ability, does not the litigant's confidence in her/his counsel count, especially when millions of ringgit may be at stake? Datuk Param Cumaraswamy said that confidence in one's counsel was important but the right to choose one's own counsel was a qualified right, not an absolute right. “Section 18 allows for the ad-hoc admission of foreign lawyers but they are still subject to our laws. “Having restrictions are not unique to Malaysia. It’s the same in the United Kingdom and other countries,” said the former United Nations Special Rapporteur on the Independence of Judges and Lawyers. The Malaysian legal system is still quite young in comparison, could we not learn from the advocacy of foreign lawyers who are experts in a particular field? “In the early days, many Silks (QCs) did appear in Malaysian courts but over the years more and more of our lawyers are now experts. “I agree that transfer of expertise is important but if local experts are available, why go elsewhere? “You must remember that the refusal in this case should not be taken as a precedent for other applications,” he added. V. Sithambaram, chairman of the Bar Council’s Criminal Law Committee, agreed that right to choose one’s counsel was qualified. “But I do agree that in an important case, if the litigant feels the best lawyer is a QC, and in this case even an eminent public law lawyer like (Datuk Dr) Cyrus Das felt Booth was the best counsel, who are we to say otherwise?” He said the courts could read Section 18 of the LPA more liberally so as to give meaning to the fundamental right to a counsel under the Federal Constitution. “At the end of the day litigants must leave the court knowing that they had the best counsel and justice was served.” Asked why the council had objected to Booth’s application when it had not done so with applications for QCs during the 'mega-defamation awards' period in Malaysian legal history, its chairman Yeo Yang Poh said: “The choice of counsel must be a counsel who has right of audience under Malaysian law. “We gave our views in this case based on the materials provided in the application. “Under Section 18, the applicant must possess expertise that is not available locally and that was not the case here,” he added. Datuk Seri Dr Visu Sinnadurai felt, however, the courts should take a liberal interpretation of Section 18 in ad-hoc admissions of foreign lawyers. “These lawyers are experts in their field and their arguments can only assist the court in coming to its decision. “It’s certainly time the Bench and Bar take a more liberal view especially with the liberalisation of legal services under GATS (General Agreement on Trade in Services),” added the former High Court judge and former senior judicial specialist in the World Bank’s Judicial and Legal Reform Unit in Washington. Senior lawyer Datuk Zaid Ibrahim said he was surprised by the council’s objection. “This whole thing is farcical; the only person that matters is the client and it is the client who is taking the risk. “We will not be flooded with QCs. By and large 99% of clients choose local lawyers. “There are times when, because of the complexities and differing points, we will be enriched if we have a QC arguing the case. “The LPA is out of touch with the times.” Zaid acknowledged, however, while his firm had branches in Singapore, Jakarta and Bangkok staffed by Malaysian lawyers they did not represent their clients in court. This case has shown that choosing one’s counsel is not an absolute right here but Malaysians can probably take some comfort from the fact that each application will be dealt on its own merit.

Malaysia - You drink and you'll be in deep shit

Syariah judge stands by his caning decision

September 2009

©The Star KUANTAN: Although his decisions to whip Muslims caught for drinking has been criticised by some, Kuantan Syariah High Court judge Datuk Abdul Rahman Md Yunos makes no apologies for his actions. “I am merely carrying out my duties as a court official as well as to society,” he said when contacted yesterday. When asked to comment on the controversy surrounding his decisions – including the caning of part-time model Kartika Sari Dewi Shukarno – Abdul Rahman replied it was unethical for him to give his opinion. On whether he was affected by the publicity surrounding his decision and the prominence his judgment has received worldwide, Abdul Rahman said he has not read the comments. Abdul Rahman, 53, has been a Kuantan Syariah High Court judge since 1996 when the Pahang Religious Affairs Department and the Pahang Syariah Judiciary Department were separated at the end of 1995. Prior to that he was the Chief Kadi. Abdul Rahman, from Kampung Kuala Bera in Bera, Pahang, is married with five children. He is a graduate of Al-Azhar University and obtained his degree in Islamic Syariah Law in 1982 and a Law Diploma from the International Islamic University Malaysia in 1989. He has ruled on six Muslims accused of consuming liquor from 2004 until this year. The first case involved brothers Mohamed Nizam Ibrahim and Mohamed Nasha who were given the maximum sentence of six strokes of the cane and fined RM5,000 each on June 14, 2005 to drinking stout at a restaurant in Jalan Bukit Ubi here on Aug 19, 2004. They have appealed and the case is still pending. The next case involved three people, including Kartika, 32. She was sentenced to six strokes of the cane and fined RM5,000 for drinking beer in a Cherating nightclub on July 11, last year. The court handed down the ruling after Kartika pleaded guilty to the charge on July 20. The other two people involved were a waitress who was arrested with Kartika, and a man caught during a raid by the religious vice squad in the nightclub. The waitress and the man were each fined RM5,000 and sentenced to six strokes of the cane after they pleaded guilty. They filed appeals against the sentence and their cases are still pending. Abdul Rahman’s decision to impose caning on Kartika created a public uproar locally and abroad. On Aug 24, the sentence was postponed out of respect for the month of Ramadan. The latest case was on Monday when Abdul Rahman ordered an Indonesian worker to serve a year in jail and be whipped six times for drinking alcohol in a restaurant in Jalan Pasar at 10am, on Aug 27. Odd-job worker Nazarudin Kamaruddin, 46, who has permanent resident status, became the first person in the state to be jailed for consuming alcohol in public. =========================================== Another to be caned for boozing Tuesday, 15 September 2009 ©The New Straits Times KUANTAN: An Indonesian with permanent resident status became the first person in the state to be jailed for consuming alcohol in public. Odd-job worker Nazarudin Kamaruddin, 46, who has lived here for 33 years, was sentenced to a year's jail and six strokes of rotan by the Syariah High Court yesterday. The bachelor was charged with consuming samsu at Paramount Restaurant in Jalan Pasar at 10am on Aug 27. The offence carries a maximum RM5,000 fine or maximum three years' jail or both and six strokes of the rotan. Although Nazarudin pleaded guilty on Sept 9, judge Datuk Abdul Rahman Md Yunos in delivering the sentence said the accused, in mitigation, had admitted to having financial difficulties and would not be able to pay the fine. Rahman said the accused was not able to raise bail when he was first charged on Sept 2 and had to be remanded at Penor prison. "The sentence meted out to him is not meant as punishment but to serve as a lesson." Rahman also ticked off Nazarudin for dishonouring the Ramadan by not fasting and by consuming alcohol in public. He said the accused, who migrated here from Indonesia at the age of 13, led an aimless life and did not have a steady job.

‘Malaysia - Enlist senior lawyers to conduct prosecution’

‘Malaysia - Enlist senior lawyers to conduct prosecution’

©New Straits Times KUALA LUMPUR: Senior criminal lawyers should be enlisted to assist in the prosecution of complicated cases on behalf of the public prosecutor. Lawyer Karpal Singh said there was provision for this in the Criminal Procedure Code but it was ignored. "In Britain, Queen’s Counsel are employed on an ad-hoc basis to conduct prosecution on behalf of the state," he said. "The position there should be emulated. I am confident senior criminal lawyers will rise to the occasion in the interest of the public," he said. Karpal said the number of botched high profile cases in the last two years brought into focus the necessity of finding ways of ensuring that prosecutions were conducted by experienced DPPs. Karpal said the weakness of the prosecution was the main reason why there had been acquittals of accused persons as the Attorney-General’s Chambers did not have enough experienced DPPs. "This position can to some extent be alleviated by having recourse to section 379 of the CPC," he said, adding the provision stated that the public prosecutor could employ a lawyer on behalf of the government to conduct criminal trials, inquiries or to appear on any criminal appeal or point of law. The provision said the lawyer could be paid remuneration, as allowed by the Finance Minister, and would be deemed a civil servant while conducting such prosecution.

Inept lawyers a risk to court: Incompetent lawyer may be ground for aquittal

©The New Straits Times By V. Anbalagan PUTRAJAYA: While upholding the decision of the lower courts to send a Bangladeshi murder accused to the gallows, the Federal Court yesterday ruled that they would set aside a conviction if it was found that a defence lawyer was incompetent during trial. In a unanimous decision, Federal Court judge Datuk Gopal Sri Ram said a lawyer's incompetence in conducting the defence in a criminal trial could be a ground to set aside a conviction. However, he pointed out that the lawyer's lack of ability must be obvious, given the circumstances of the case. "It must have also deprived the accused of a fair trial, thereby occasioning a miscarriage of justice," he said when delivering the unanimous judgment dismissing an appeal by the Bangladeshi. Shamim Reza Abdul Samad will now be hanged for having murdered 20-year-old Universiti Teknologi Mara (UiTM) student Zuriyati Othman seven years ago. Federal Court judges Tan Sri Richard Malanjum and Datuk Hashim Yusof heard Shamim's appeal two months ago along with Sri Ram. In his submission before the Federal court, counsel Datuk N. Sivananthan said Shamim's court-appointed trial lawyer was incompetent. Sri Ram , who delivered the judgment, said an appellate court must give consideration to the conduct of the counsel in the trial court as a whole and not merely his failure in one or two areas. In the present case, he said the appeal was focused on a point that Zuriyati was killed by someone else and he submitted that the failure to put this point to prosecution witnesses was gross incompetence. "The evidence makes it clear that no person other than Shamim was in the room at the material time. The room was locked from the inside." Sri Ram said this necessitated the victim's sister to have to look for a spare key. "When she entered, the only person in the room other than Zuriyati was Shamim. The possibility of a third person having entered the room is so far fetched that a reasonable tribunal would have rejected it." Sri Ram said the apex court was satisfied that this case was not an extreme case of incompetence on the part of the counsel who conducted the trial, but warned that the Federal court would set aside any conviction if it was found that the trial lawyer did not put up a proper defence. Shamim committed the offence at room 101, Blok A, Meranti Residence College at the UiTM campus in Shah Alam between 11.30am and noon on Aug 9, 2002. Evidence revealed that Shamim and Zuriyati had a relationship that became estranged. On the day of the incident, Shamim went to Zuriyati's flat and later, the sister heard a cry from the victim. The sister found Zuriyati on the bed with stab wounds and an unconscious Shamim. A Rambo knife was also found in the room. Based on these evidence, the prosecution argued that it was Shamim who stabbed Zuriyati with the intention to cause death. At the trial, Shamim was represented by a court assigned lawyer James George, who was assisted by Salim Bashir.

Malaysia: Same-sex marriage case: Prosecutor told to step down

13 Mar 2007
Jason Gerald John

New Straits Times - Malaysia

(Does it ring a bell?)

MALACCA: The trial of a couple accused of entering into a same-sex marriage took a twist yesterday when the prosecutor was told to step down. The couple’s defence lawyer asked the judge in the Syariah Lower Court to remove prosecutor Mohamad Azli Abdul Rahman because he was also a witness in the case.

Allowing counsel Zulfiqri Zakaria’s application, judge Che Saufi Che Husin
told Mohamad Azli:

"I advise you to appoint a syarie lawyer to replace you (as prosecutor) to
expedite the proceedings. Only by doing so will there be a fair trial."

Zulfiqri Zakaria is representing Mohd Sofian, 40, whose birth certificate
bears the name Mazinah Mohamad, and who married Zaiton Aziz, 43, in December
2002.

The marriage, solemnised by imam Ishak Juki of the Bukit Cina mosque, was deemed legal as all procedures were adhered to. But a few months later, the Malacca Religious Affairs Department refused to register the marriage because it was suspicious of the groom’s gender.

Che Saufi set April 30 to hear the case.

The couple arrived in court holding hands and wearing colour co-ordinated outfits. Mohd Sofian, sporting an orange striped shirt, and Zaiton, an orange baju kurung and white tudung, greeted the media and posed for pictures.

They are charged under the Malacca Islamic Family Enactment 2002. If the court finds them guilty, their marriage will be annulled and they
will be ordered to separate.

Malaysian Bar Council Opposes Plan to Let In Foreign Law Firms

Malaysian Bar Opposes Plan to Let In Foreign Law Firms

Written by Sean Hocking


Bloomberg report

-- Malaysia’s Bar Council said it opposes a government plan to let international law firms open offices in the country to advise on Islamic finance because it may stunt development of local expertise.

“I don’t think this can be done without the cooperation and assistance of the Bar Council,” President Ragunath Kesavan said in an interview yesterday. “We’re the regulatory body.” He said the group will continue to work with the government.

Prime Minister Najib Razak scrapped ownership limits for overseas companies in some services industries April 22 to help offset a projected slump in foreign investment. As part of the liberalization, Malaysia will allow as many as five foreign law firms to set up offices as it competes with neighboring Singapore for a larger slice of the Islamic bond market.

The Bar Council would prefer foreign firms to be allowed in through joint ventures, the group said in a statement yesterday. Letting such firms do business without local partners avoids any requirement to share expertise with Malaysian lawyers in return for their knowledge of local laws, Kesavan said.

Malaysia’s central bank supports allowing firms in “on a stand-alone basis,” because they may attract Islamic finance business, the statement said.

“We are not convinced that this will be the case,” Kesavan said. Local law firms are also subject to racial quotas in order to do work for government-linked companies, and legal- services liberalization should also tackle this restriction, he said.

LIST OF MALAYSIA HIGH COURT JUDGES

1) The Honourable Justice Dato' Selventhiranathan a/l Thiagarajah
High Court Judge Kuala Lumpur (Civil)
DSPN, JSM

• Appointed Judicial Commissioner on 1 January 1991.
• Appointed High Court Judge on 16 October 1994.

2) The Honourable Justice Dato' Abdul Kadir bin Musa
High Court Judge Kuala Lumpur (RKKK)
DPMT

• Appointed Judicial Commissioner on 15 July 1994.
• Appointed High Court Judge on 5 July 1996.


3) The Honourable Justice Dato' Tee Ah Sing @ Tee Boon Hooi
High Court Judge Kuala Lumpur (Civil)
DIMP

• Appointed Judicial Commissioner on 1 October 1994.
• Appointed High Court Judge on 5 July 1996.

4) The Honourable Justice Datuk Abdul Wahab bin Patail
High Court Judge Kuala Lumpur (Civil)
PGDK

• Appointed Judicial Commissioner on 1 October 1994.
• Appointed High Court Judge on 5 July 1996.


5) The Honourable Justice Dato' Muhamad Ideres bin Muhamad Rapee
High Court Judge Kuala Lumpur (Criminal)
DPMT, DIMP

• Appointed Judicial Commissioner on 1 September 1998.
• Appointed High Court Judge on 16 June 2000.


6) The Honourable Justice Datuk Clement Allan Skinner
High Court Judge Kota Kinabalu, Sabah
PJN, ASDK, ADK

• Appointed Judicial Commissioner on 1 September 1998.
• Appointed High Court Judge on 16 June 2000.

7) The Honourable Justice Dato' Thiripurasingam a/l Veerasingam
High Court Judge Kuantan, Pahang
DIMP, PMP

• Appointed Judicial Commissioner on 1 June 2000.
• Appointed High Court Judge on 15 May 2002.

8) The Honourable Justice Datuk Syed Ahmad Helmy bin Syed Ahmad
High Court Judge Shah Alam (Criminal), Selangor
PJN, DPMJ

• Appointed Judicial Commissioner on 1 October 1994.
• Appointed High Court Judge on 5 July 1996.

9) The Honourable Justice Dato' Zakaria bin Sam
High Court Judge Penang
DSSA, SMS

• Appointed Judicial Commissioner on 1 June 2000.
• Appointed High Court Judge on 12 July 2004.

10) The Honourable Justice Datuk Su Geok Yiam
High Court Judge Shah Alam (Criminal), Selangor
PJN, DPMN, KMN, PMP

• Appointed Judicial Commissioner on 1 June 2000.
• Appointed High Court Judge on 12 July 2004.


11) The Honourable Justice Dato' Balia Yusof bin Haji Wahi
High Court Judge Kuala Lumpur (Civil)
DPMS, KMN, PIS

• Appointed Judicial Commissioner on 2 January 2002.
• Appointed High Court Judge on 21 December 2004.


12) The Honourable Justice Dato' Zainal Adzam bin Abd. Ghani
High Court Judge Ipoh, Perak
DPMK, DPMP, SMJ, KMN

• Appointed Judicial Commissioner on 1 May 2003.
• Appointed High Court Judge on 21 December 2004.


13) The Honourable Justice Dato' Alizatul Khair binti Osman Khairuddin
High Court Judge Kuala Lumpur (RKKK)
DSPN

• Appointed Judicial Commissioner on 1 May 2003.
• Appointed High Court Judge on 21 December 2004.


14) The Honourable Justice Datuk Wira Mohtarudin bin Baki
High Court Judge Ayer Keroh, Melaka
KMN, JSM, DCSM

• Appointed Judicial Commissioner on 1 May 2003.
• Appointed High Court Judge on 21 December 2004 .


15) The Honourable Justice Dato' Abdul Aziz bin Abd. Rahim
High Court Judge Kuala Lumpur (Commercial)
DPTJ, DNS, AMN

• Appointed Judicial Commissioner on 1 May 2003..
• Appointed High Court Judge on 21 December 2004.


16) The Honourable Justice Tuan Sangau Gunting
High Court Judge Bintulu

• Appointed Judicial Commissioner on 1 May 2003.
• Appointed High Court Judge on 21 December 2004.

17) The Honourable Justice Puan Lau Bee Lan
High Court Judge Kuala Lumpur (RKKK)
BCM

• Appointed Judicial Commissioner on 1 May 2003.
• Appointed High Court Judge on 21 December 2004.
18.-Datuk-Siti-Mariah


18) The Honourable Justice Datuk Siti Mariah bt. Haji Ahmad
High Court Judge Kuala Lumpur
PIS, PJN

• Appointed Judicial Commissioner on 1 May 2003.
• Appointed High Court Judge on 21 December 2004.

19) The Honourable Justice Dato' Wan Afrah binti Dato' Paduka Wan Ibrahim
High Court Judge Kuala Lumpur
DSDK

• Appointed Judicial Commissioner on 1 May 2003.
• Appointed High Court Judge on 21 December 2004.

20) The Honourable Justice Dato' Haji Mohamed Apandi bin Haji Ali
High Court Judge Kuala lumpur (Commercial)
SIMP, DSAP, DIMP

• Appointed Judicial Commissioner on 1 May 2003.
• Appointed High Court Judge on 21 December 2004.

21) The Honourable Justice Datuk Linton Albert
High Court Judge Kuching, Sarawak
PJN

• Appointed Judicial Commissioner on 1 May 2003.
• Appointed High Court Judge on 21 December 2004.

22) The Honourable Justice Datuk Zaharah binti Ibrahim
High Court Judge Kuala Lumpur (Commercial)
PJN, DPMS, SMS, KMN

• Appointed Judicial Commissioner on 1 May 2003.
• Appointed High Court Judge on 21 December 2004.

23) The Honourable Justice Dato' Azahar bin Mohamed
High Court Judge Kuala Lumpur (Commercial)
DIMP, KMN

• Appointed Judicial Commissioner on 1 August 2004.
• Appointed High Court Judge on 21 December 2004.

24) The Honourable Justice Dato' Mohamad Zabidin bin Mohd Diah
High Court Judge Kuala Lumpur (Commercial)
DIMP, KMN

• Appointed Judicial Commissioner on 1 August 2004.
• Appointed High Court Judge on 28 July 2006 .

25) The Honourable Justice Dato' Hj. Abdul Halim bin Aman
High Court Judge Penang
SIMP, DSAP, DIMP

• Appointed Judicial Commissioner on 1 September 2005.
• Appointed High Court Judge on 11 April 2007.

26) The Honourable Justice Tuan David Wong Dak Wah
High Court Judge Kota Kinabalu, Sabah

• Appointed Judicial Commissioner on 1 September 2005.
• Appointed High Court Judge on 11 April 2007.

27) The Honourable Justice Dato' Rohana bt Yusuf
High Court Judge Kuala Lumpur (Commercial)
DPSK

• Appointed Judicial Commissioner on 1 September 2005.
• Appointed High Court Judge on 11 April 2007.

28) The Honourable Justice Dato' Aziah Bt Ali
High Court Judge Kuala Lumpur (Civil)
DSDK, AMP

• Appointed Judicial Commissioner on1 September 2005 .
• Appointed High Court Judge on 11 April 2007.

29) The Honourable Justice Datuk Nurchaya bt Hj. Arshad
High Court Judge Miri, Sarawak
PGDK, JP

• Appointed Judicial Commissioner on 1 September 2005.
• Appointed High Court Judge on 11 April 2007.

30) The Honourable Justice Dato' Zulkifli bin Bakar
High Court Judge Miri, Sarawak
DSDK, BCK

• Appointed Judicial Commissioner on 1 September 2005.
• Appointed High Court Judge on 11 April 2007.


31) The Honourable Justice Dato' Mohd Zaki bin Md. Yasin
High Court Judge Shah Alam (Criminal Division), Selangor.
DSDK, SDK

• Appointed Judicial Commissioner on 1 September 2005.
• Appointed High Court Judge on 11 April 2007.

32) The Honourable Justice Dato' Mohd. Azman Bin Husin
High Court Judge Kota Bharu, Kelantan
DIMP

• Appointed Judicial Commissioner on 15 February 2007.
• Appointed High Court Judge on 11 April 2007.

33) The Honourable Justice Dato' Mohd. Sofian bin Tan Sri Abd. Razak
High Court Judge Alor Setar, Kedah
DIMP

• Appointed Judicial Commissioner on 1 September 2005.
• Appointed High Court Judge on 5 September 2007.

34) The Honourable Justice Dato' Tengku Maimun Binti Tuan Mat
High Court Judge Kuala Lumpur (Commercial)
DSDK

• Appointed Judicial Commissioner on 2 October 2006.
• Appointed High Court Judge on 5 September 2007.

35) The Honourable Justice Tuan Abdul Alim bin Abdullah
High Court Judge Kuala Lumpur (Commercial)
KMN

• Appointed Judicial Commissioner on 2 October 2005.
• Appointed High Court Judge on 5 September 2007.

36) The Honourable Justice Dato' Haji Ghazali Bin Haji Cha
High Court Judge Kuala Lumpur (Criminal)
DSDK, SDK

• Appointed Judicial Commissioner on 1 September 2005.
• Appointed High Court Judge on 5 September 2007.


37) The Honourable Justice Tuan John Louis O'Hara
High Court Judge Penang
KMN, JSM

• Appointed Judicial Commissioner on 1 September 2005.
• Appointed High Court Judge on 1 September 2007.


38) The Honourable Justice Puan Rosnaini Bt. Saub
High Court Judge Shah Alam (Civil 3)
PMP

• Appointed Judicial Commissioner on1 September 2005 .
• Appointed High Court Judge on 5 September 2007.

39) The Honourable Justice Puan Lim Yee Lan
High Court Judge Kuala Lumpur (Commercial)
DSDK, SDK

• Appointed Judicial Commissioner on 2 September 2005.
• Appointed High Court Judge on 5 September 2007.

40) The Honourable Justice Puan Suraya Othman
High Court Judge Kuala Lumpur (Civil 8)
SSIS

• Appointed Judicial Commissioner on 2 October 2006.
• Appointed High Court Judge on 5 September 2007.

41) The Honourable Justice Dato' Abdul Rahim bin Uda
High Court Judge Penang
DPCM, DIMP, SMP

• Appointed Judicial Commissioner on 1 September 2005.
• Appointed High Court Judge on 5 September 2007.

42) The Honourable Justice Puan Noor Azian bt. Shaari
High Court Judge Kuala Lumpur (Civil)
JSM, KMN

• Appointed Judicial Commissioner on 1 September 2005.
• Appointed High Court Judge on 5 September 2007.



SOURCE: http://portal.kehakiman.gov.my/(18 SEPT. 2009)

An Overview of Malaysian Legal System and Research

An Overview of Malaysian Legal System and Research

(C) By Shaikh Mohamed Noordin and Lim Pui Keng

Shaikh Mohamed Noordin has more than fifteen years of experience in law librarianship. He has been a librarian in several law firms in Kuala Lumpur, and has contributed several articles in various law librarian journals, locally and internationally.

Lim Pui Keng is Director and Legal Consultant at Advanz Fidelis Sdn Bhd in Kuala Lampur, Malaysia. Lim graduated from the University of Leicester, United Kingdom with an LL.B (Hons) in 1996 and was admitted as an Utter Barrister to the Bar of England and Wales in 1997. Lim is a member of the Honourable Society of Lincoln’s Inn, London and was admitted as an Advocate and Solicitor of the High Court of Malaya in 1998.

Table of Contents

1. Origins of Modern Malaysian Law

2. Legislative Authority – Source of Primary Legislation

2.1 Legislative Sources

3. Executive Authority – Source of Subsidiary Legislation

3.1 Executive Sources

3.2 Ministries

3.3 Government Departments

3.4 Statutory and Regulatory Bodies

4. Judicial Authority – Source of Case Law

4.1 Judicial Sources

5. Legal Profession

6. Note on Finding Primary Malaysian Legal Sources

1. Origins of Modern Malaysian Law

It is important for researchers to understand that much of Malaysia’s history is related to Great Britain, which established some of the earliest colonies on the Malay Peninsula. Although the Dutch and Portuguese were the earlier colonial powers, the British, who had ruled Malaya for more than one hundred and fifty years with just one short interruption during World War II, left a much greater impact upon the law of the country. The legal history of Malaysia begins with the acquisition of Penang in 1786 and with the introduction of the Charters of Justice in 1807, 1826, and 1855.

The Federation of Malaya received independence from the British in 1957. On September 16, 1963, the eleven states of the Federation of Malaya, the former colonies of Sarawak and Sabah on the western coast of Borneo, and the State of Singapore united to form the Federation of Malaysia. In August 1965, however, Singapore seceded from this newly-formed federation to become an independent republic. Malaysia, as it is known today, consists of the eleven peninsular states that constituted Malaya (this is referred to as peninsular Malaysia), Sabah, and Sarawak.

The reception of English law slowly evolved and developed during the period of British colonization. However, the reception of English law only became statutory after the promulgation of the Civil Law Enactment of 1937. There are three periods during which modern Malaysian laws were made. Pre-war law was made during the decentralization of Malay states (1866-1942). The Malay states at that time were divided into three groups of states: the Straits Settlement (SS) group of states comprised of Penang, Malacca, and Singapore, the Federated Malay States (FMS), comprised of Perak, Selangor, Negeri Sembilan, and Pahang, and the Unfederated Malay States (UMS), comprised of Johor, Kedah, Perlis, Terengganu, and Kelantan.

Post-war law was made after the unification of all the Malay states except Singapore under a federal administration (1946-1957), and Post-independence law was made after the formation of the Federation of Malaya and Malaysia (1957 and 1963). Prior to independence in 1957, most of the laws of the United Kingdom were adopted and either made into local legislations or simply applied as case laws. The application of English law or common law is specified in the Civil Law Act 1956 as stated in Sections 3 and 5 of the said Act, which allows for the application of English common law, equity rules, and statutes in Malaysian civil cases where no specific laws have been made. Similarly, in the context of civil law, Section 5 of the Criminal Procedure Code also states that English law shall be applied in cases where no specific legislation has been enacted.

Malaysian law is also modeled on other jurisdictions’ laws, such as Australia and India. The Malaysian Criminal Procedure Code was based on the Indian criminal code. Similarly, the labour law and the Contracts Act are also based on the Indian model. Malaysian land law is based on the Australian Torrens system. There are a number of laws made during the colonization that are still in existence and applicable with certain modifications in line with domestic and current circumstances.

An understanding of the basic arrangement of the current Malaysian legal system and the concept of separation of (law-making) powers will assist you in understanding how Malaysian legal resources are organized and found. Although the Malaysian legal system is predominantly based on English common law, there are also other secondary legal systems concurrently affecting certain sections of the law, such as Islamic law and customary law. Therefore, it is also important for researchers to note which jurisdiction and group of people that the law was designated for and whether the laws are still in force.

The legal system of Malaysia was modeled after the English legal system which practices parliamentary democracy and is ruled by a Constitutional Monarchy, with His Majesty the Yang di-Pertuan Agong (the King) presiding ceremonially as the Head of the country. The Yang di-Pertuan Agong is elected by the Conference of Rulers for a five-year term from among the hereditary Rulers of the nine states in the Federation which are ruled by Sultans. The states are Perlis, Kedah, Perak, Selangor, Negeri Sembilan, Johor, Pahang, Terengganu and Kelantan. In the other states, namely Melaka, Pulau Pinang, Sabah and Sarawak, the Head of State is the Yang di-Pertua Negeri or Governor of the State. The Yang di-Pertua Negeri is appointed by the Yang di-Pertuan Agong for a four-year term.

The Federal Constitution of Malaysia clearly divides the law-making authority of the Federation into its legislative authority, judicial authority and executive authority. The separation of powers also occurs both at federal and state levels. The federal laws enacted by the federal assembly, known as the Parliament of Malaysia, apply throughout the country. There are also state laws governing local governments and Islamic law enacted by the state legislative assembly which applies in the particular state.

2. Legislative Authority – Source of Primary Legislation

Legislative authority is the power to enact laws applicable to the Federation as a whole under Article 66(1) of Federal Constitution. At the Federal level, the legislative power is vested in a bicameral Parliament headed by the Yang di-Pertuan Agong and comprises the Dewan Negara (House of Senate) and Dewan Rakyat (House of Representatives). The Dewan Negara has 70 members, of whom 44 are nominated by the Yang di-Pertuan Agong, and 26 elected by the State Legislative Assemblies. The Dewan Rakyat is fully elected and has 222 members. The duration of the life of each Parliament and State Legislatures is about five years and is split into one-year sessions, after which the session is terminated or prorogued, usually in September.

The distribution of law-making authority between the Federal and State Governments is enumerated in the Ninth Schedule of the Federal Constitution, and is set out in a Federal List, State List and a Concurrent List. The main subject areas of the Federal List are external affairs, defence, internal security, civil and criminal law, citizenship, finance, commerce and shipping industry, communications, health, and labour.

The State List comprises matters such as land, agriculture, forestry, local government, riverine fishing, Muslim law, etc. The Concurrent List, under authority of both the Federal and State Governments, covers social welfare, scholarships, protection of wildlife, and town and country planning. Should any inconsistency between federal and state law exist, federal law takes precedence over state law.

The Parliament generates a great number of publications containing law, primarily the federal statutes, which are officially published in the Government Gazettes by the Government Printer. Most such publications are available commercially on the Internet and through official websites.

2.1 Legislative Sources

Official Sources:

Website of the Parliament of Malaysia

The Malaysian Parliament website offers the largest number of full texts of Acts of Parliaments enacted since 1990 in pdf format, free of charge. The only obstacle to finding the Acts of Parliament from this website is that one must know the name of the Acts in order to find it. The Acts are currently available only up to the year 2000. The Bills on the other hand, are quite current.

Constitution of Malaysia

1. Source 1

2. Source 2

3. Source 3

Laws of Malaysia (LOM) Series in Numerical Table Index

This website is a good starting point to find Acts of Parliament; there are numerical and alphabetical indexes to help researchers find new and revised Acts promulgated after 1 January 1969, also known as ‘Laws of Malaysia’ (LOM) series. The LOM series is a compilation and reprint of laws published in volume form pursuant to Section 14A of the Revision of Laws Act 1968 [Act 1]. It is the only official and authoritative publication of the laws of Malaysia. The LOM series incorporates all principal laws of Malaysia enacted after 1969, as well as pre-1969 laws which have been revised by the Commissioner of Law Revision.

Laws of Sarawak

Contains only the list of Sarawak State ordinances.

Laws of Sabah - Sabah LawNet

The Sabah LawNet belongs to the Sabah State Attorney-General's Chambers, which includes a database of updated Sabah Law. These laws include the State's Enactments, Ordinances, Rules, Regulations, and By-Laws. It is comprehensive and easy to use and is geared toward government officers, practicing lawyers, legal advisors, academics, law students, and the general public who have a daily need to refer to Sabah laws.

Sabah State Government Gazette

The Sabah State Government gazette website belongs to the State Government Printing Department. The legislation in the website is published every Thursday and is available from the year 2000.

Official Government Portal for Malaysia – “Legal Maters@MGovernment”

The link allows one to check lists of statutes on Property, Health, Consumer, and Employment law.

Commercial Sources:

Government Gazette

Commonly known as LawNet, this website commercially provides authoritative texts of the Laws of Malaysia. It started its operation in 1998 and has since included Updated Acts of Parliament, Principal Acts (Original), Amendment Acts, Ordinances, Bills Supplement, Updated Rules & Regulations, Legislative Supplement (A), Legislative Supplement (B), Federal Constitution, Criminal Procedure Code, Penal Code, National Land Code, Rules of Court, Court Forms and General Order. LawNet launched its electronic Gazette (e-Gazette), an electronic version of the Malaysia Gazette printed by the Government’s printer (PNMB) in 2001.

CLJ Legal Network (CLJ Online)

This website consists of all Federal legislation of Laws of Malaysia series from Act 1 to the present day. There are over 700 such enactments currently available to subscribers. In addition, selected subsidiary legislation is also available. Any new enactments are put online as soon as they become available. All legislation is consolidated - i.e. amendments are incorporated into the principle Acts soon after they are in force.

3. Executive Authority - Source of Subsidiary Legislation

The Executive is vested with the authority to govern and administer the laws by way of delegated and drafts Bills as provided under Article 39 of the Federal Constitution. The power to govern that is vested in the Yang di-Pertuan Agong, however, is exercisable by a Cabinet of Ministers headed by the Prime Minister. The Cabinet is answerable to the Yang di-Pertuan Agong as the head of Executive Authority in the country. Each executive act of the Federal Government flows from his Royal authority, whether directly or indirectly. However, in accordance with the principle of a democratic ruling system, the Chief Executive is the Prime Minister.

The Yang di-Pertuan Agong appoints a Cabinet - a council of Ministers - to advise him in the exercise of his functions. It consists of the Prime Minister and an unspecified number of Ministers who must all be members of Parliament, either the Dewan Rakyat (House of Representatives) or Dewan Negara (House of Senate). The Ministers hold different portfolios and are collectively responsible for all decisions made by the Cabinet, which is the highest policy-making body in the country.

To ensure the smooth enforcement of the law, the Government has set up various agencies to achieve its objectives. The government agencies are comprised of three main components, namely ministries, departments, and statutory bodies. At the ministerial level, the functions of the main agencies are to formulate, control, and implement government policies; while at departmental levels the agencies are responsible for implementing all the policies. Agencies of statutory bodies are semi-governmental in structure and are responsible for carrying out duties assigned to them to meet the government's policies.

3.1 Executive Sources

Federal Government website comprises all the ministries’ websites.

States Government websites comprise all the state governments’ websites.

Prime Minister’s Office website.

3.2 Ministries

Ministries are the highest bodies in the federal administrative machinery. Each ministry is responsible for formulating, planning, controlling, and coordinating government policies pertaining to its functions. It is also the responsibility of the ministry to control departments and statutory bodies under it. A ministry is normally headed by a minister who holds a certain portfolio.

The organizational structure of the ministries is divided into several divisions or units depending on their size. In view of the present legal system, ministries are divided into two groups, namely self-law-making ministries and non-law-making ministries. Whether or not a Ministry is self-law-making is based on the size of the ministry concerned. The purpose of establishing self-law-making is to ensure the smooth running of its administration and expedite its legal processing. In the case of non-lawmaking ministries, the Attorney General's Chambers would be responsible for its law drafting arrangements of the ministries concerned.

3.3 Government Departments

Government departments are the second highest agencies, responsible for implementing government policies. Most of these departments were established during the colonial era. During British rule over Malaya, government departments were set up to implement policies and enforce the law of the ministries concerned; they continue to play the same role today.

Usually the functions of a department are related to certain policy determined by the Government. The daily activities of a government department involve direct rendering of services to the public. The services rendered include security, social development and other social services. A department is headed by a Director-General who is responsible to administer the law under the purview of his or her department. Some of the departments include legislation administered and enforced by them in their websites:

Department of Environment

The duty of the Department is to administer and enforce the Environmental Quality Act, 1974 (Amendments 1985, 1996), and Section IV of the Economic Exclusive Zone Act, 1984. You can check the list of environmental law that is administered by the Department on this website.

Royal Customs and Excise Department

This is an important revenue-collecting department under the Ministry of Finance, which determines and imposes duties on goods coming into Malaysia. The website contains various Customs duties, regulations, guidelines, and procedures for public reference.

Immigration Department of Malaysia

The main function of the department is to issue Visas, Passes and Permits to foreign nationals entering Malaysia and to enforce (all provisions of) the Immigration Act 1959/63 (Amendment Act 2002), the Passport Act 1966 (Amendment Act 1996) and Immigration Regulations 1963. Its website focuses more on the corporate profile of the Department.

Department of Civil Aviation Malaysia

As DCA is a regulatory authority, its main function is to ensure that the aviation service providers conduct their activities in accordance with appropriate regulations. All the relevant aviation law can be accessed from this website.

Marine Department Malaysia

The Maritime Department is responsible for the formulation of policies, planning, research, and coordination regarding maritime matters including ports development, shipping industry, licensing of domestic shipping, and seamen affairs. The aim is to increase the effectiveness and efficiency of utilizing port facilities. Its website includes full-texts of maritime legislation and regulations. The National Maritime Portal provides other source of law on shipping.

Road Transport Department of Malaysia

The Road Transport Department (RTD) was established in 1937, under the Traffic Enactment 1937. On 1 April 1946, the RTD was set up specifically to coordinate all aspects relating to transportation nationwide. In line with its function, various acts relating to road transportation were regulated under provisions such as the Road Traffic Ordinance 1958 and the Road Transport Act 1987.

Department of Statistics Malaysia

The Department of Statistics was established in 1949 under the provisions of the Statistics Ordinance 1949 and was then known as the Bureau of Statistics. In 1965, the name Bureau of Statistics was changed to the Department of Statistics, Malaysia operating under the provisions of the Statistics Act 1965 (Revised 1989). In the government organizational structure, the Department of Statistics, Malaysia is placed under the Prime Minister's Department. The website is a good source of statistical data of Malaysia.

3.4 Statutory and Regulatory Bodies

The setting up of a statutory body is governed by law. Statutory bodies are established with the objective of implementing certain duties and responsibilities in line with government objectives. Corporations are set up to take over the duties and responsibilities of certain government departments. Each public corporation has officers of its own to manage it. The chief administrator of a public corporation is conferred and empowered to enact rules and regulations and to monitor his governing bodies to ensure smooth administration in accordance with the objectives. As public regulatory bodies, the law is publicly available information, as the following prominent websites demonstrate:

Bank Negara Malaysia (Central Bank)

Bank Negara Malaysia is the central bank of Malaysia. It was established on 26 January 1959, under the Central Bank of Malaya Ordinance, 1958, Act 519. The website includes full-texts of all banking and financial legislation.

MIDA - Malaysian Industrial Development Authority

The Malaysian Industrial Development Authority (MIDA) is the government's principal agency established under Act 397/1965 for the promotion and coordination of industrial development. It is the first point of contact for investors who intend to set up projects in manufacturing and related support services sectors in Malaysia. This is a useful site for foreign investors.

MATRADE

MATRADE was established on 1 March 1993 under the Act 490/1992 as the external trade promotion arm of Malaysia's Ministry of International Trade and Industry (MITI). MATRADE functions as a focal point for Malaysian exporters and foreign importers as a source for trade-related information. This is an informative site for Malaysian exporters.

Securities Commission

The Securities Commission (SC) was set up under the Act 498/1993 on 1 March 1993, marking a significant milestone in the Government's commitment to have a central authority in the regulation and development of the securities and futures industries in Malaysia. This is the best site for searching securities law in Malaysia.

The Inland Revenue Board of Malaysia

The Inland Revenue Board of Malaysia is one of the main revenue collecting agencies of the Ministry of Finance. The Department of Inland Revenue Malaysia became a board on 1 March 1996, and is now formally known as The Inland Revenue Board of Malaysia. The Inland Revenue Board was established in accordance with the Inland Revenue Board of Malaysia Act 1995, Act 533. This is the best website for information on Malaysian taxation regulations and procedures.

Labuan Offshore Financial Service Authority (LOFSA)

LOFSA was established as a single regulatory agency on 15 February 1996 under Act 545/1996 to be responsible for setting national objectives, policies and priorities for the orderly development and administration of the Labuan International Offshore Financial Centre (IOFC). This website contains full-texts of all offshore legislation.

Malaysian Communications and Multimedia Commission (MCMC)

The Malaysian Communications and Multimedia Commission (MCMC) is the regulator for the converging communications and multimedia industry established under Act 589/1998 on 1 November 2001. The website contains full-texts of Malaysian cyber law.

Companies Commission of Malaysia

This is the first agency or Federal Statutory Body under the Ministry of Domestic Trade and Consumer Affairs established on 16 April 2002 under Act 614/2001. The site facilitates company searches and the full text of the Companies Act.

Intellectual Property Corporation of Malaysia

The Intellectual Property Division (IPD) was first established on 27 October 1990 and is now governed under Act 617/2002 under the Ministry of Domestic Trade and Consumer Affairs, Malaysia. The Corporation is responsible for the development and management of the intellectual property system in Malaysia.

Human Right Commission of Malaysia

The Human Rights Commission of Malaysia (SUHAKAM) was established by Parliament under the Human Rights Commission of Malaysia Act 1999, Act 597. The Act was gazetted on 9 September 1999. The full-text of the Human Right Act is included in the website.

Government Machinery

4. Judicial Authority – Source of Case Law

The Judiciary is empowered to hear and rule on civil and criminal matters, and to decide on the legality of any legislative or executive acts as provided under Article 125A of the Federal Constitution. It is also conferred authority by law to interpret the Federal and State Constitutions. The courts can pronounce on the validity of any law passed by parliament and they can pronounce on the meaning of any provision of the constitution. The jurisdiction of the Malaysian courts is determined by the Courts of Judicature Act 1964 for Superior Courts and the Subordinate Courts Act 1948 for Subordinate Courts.

The Malaysian Courts of Justice are made up of the Superior Courts and the Subordinate Courts. The Superior Courts are comprised of the Federal Court (the highest court), the Court of Appeal, and the two High Courts. By virtue of Act 121(1) of the Federal Constitution, judicial power in the Federation is vested on two High Courts of coordinate jurisdiction and status, namely the High Court of Malaya for Peninsular Malaysia and the High Court of Borneo for Sabah and Sarawak.

The Federal Court of Malaysia is the Supreme Court and highest judicial authority in the country, as well as the final court of appeal in Malaysia. Before 1957, the name "Supreme Court" was used to refer to the highest court for Malaysia just below the Privy Council. The Supreme Court was renamed the Federal Court of Malaysia effective from 24 June 1994, and is now the final court of appeal for Malaysia. The Federal Court reviews decisions referred from the Court of Appeal; it has original jurisdiction in constitutional matters and in disputes between states or between the federal government and a state. Before 1 January 1985, the Federal Court was the highest court in the country but its decisions were further appealable to the Privy Council in London. However, on 1 January 1978, Privy Council appeals in criminal and constitutional matters were abolished, and on 1 January 1985, all other appeals i.e. civil appeals, except those filed before that date, were abolished.

The Subordinate Courts in Peninsular Malaysia consist of the Sessions Court, Magistrates' Court, and the Penghulu's Courts. The Subordinate Courts in Sabah and Sarawak consist of the Sessions Court, Magistrates' Courts and Native Courts. In the hierarchy of Subordinate Courts the lowest is the Penghulu’s Court. A Penghulu is a headman appointed by a state government. The criminal jurisdiction of a Penghulu’s Court is limited to the trial of offences of a minor nature which can be adequately punished by a fine not exceeding RM25.00. In addition to the above, there is also a Juvenile Court for offenders below the age of 18.

All members of the judiciary are appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister and after consultation with the Conference of Rulers. The number of Judges is fixed by the Constitution. The head of the judiciary is the Chief Justice of the Federal Court, who exercises direct supervision over all courts. Currently, the law provides seven other judges of the Federal Court, besides the Chief Justice of Malaysia, the President of the Court of Appeal, the Chief Judge of Malaya, and the Chief Judge of Sabah and Sarawak, ten judges for the Court of Appeal, forty-seven Judges for the High Court in Malaya, ten judges in the High Court in Sabah and Sarawak, and eleven Judicial Commissioners in the High Court in Malaya, and two in the High Court in Sabah and Sarawak, although this may be altered by the Yang di-Pertuan Agong by way of an order.

Selected court cases are reported in any of three major law reports in Malaysia e.g. Malayan Law Journal (MLJ – 1932 to present), Current Law Journal (CLJ - 1982 to present) and All Malaysia Reports (AMR – 1992 to present). Only a small portion of latest cases of the superior courts are available in the Court website as below.

4.1 Judicial Sources

Malaysian Court Homepage

This website contains Malaysian judicial information and links to recent judgments and superior courts rules and other related information as follow:

Court Rules

· Court of the Judicature Act 1964, (Revised 1972) Act 91

· Rules of the Federal Court 1995

· Rules of the Court of Appeal 1994

· Subordinate Courts Rules Act 1955, Act 55

Judgments

· Federal Court Latest Judgments

· Court of Appeal Latest Judgments

· High Court Judgments

· Kota Kinabalu High Court Judgments

Sabah Law Courts

This website contains information on Sabah courts, such as how the courts function and how cases are being dealt with. This site covers the courts in Kota Kinabalu, Sandakan, Tawau and Labuan, including the courts in the various districts. Recent judgments can also be obtained from here.

Sarawak Law Courts

Contains similar information to the Sabah Law Courts’ website, set up with the aim of promoting transparency and informing advocates and the public how the courts function and how cases are being dealt with. This site covers the courts throughout Sarawak.

Syariah Court of Federal Territories

The establishment of the Syariah Court of Federal Territory was first made under Section 44(1) & (2) Selangor Islamic Administration of Islamic Law Enactment (1952). However, it was revised by the Federal Territory Order (1974). This website helps us to understand the syariah court procedures and contains other administartive information.

Industrial Court of Malaysia

The Industrial Court was established in 1940 under the Industrial Court of Inquiry Rules but it did not function due to Japanese Occupation. The Industrial Court’s objective is to set up principles and guidelines for labour law in the private sector through decisions and awards handed down by the court which will set precedent to be followed in the practice of labour law and industrial relation system. The present Industrial Court is instituted under the Industrial Relations Act 1967. This website gives further explanations on the Industrial Court’s functions, activities, and jurisdiction.

Intellectual Property Court

The concern for the increase in piracy of copyrighted materials and counterfeiting of goods in Malaysia drove the country to establish an Intellectual Property Court. The Malaysian government has approved the establishment of fifteen (15) Sessions Courts with criminal jurisdiction known as “Sessions Court (Intellectual Property)”, one (1) in each state including in Putrajaya. In addition, six (6) High Courts with both civil and appellate jurisdictions known as “High Court of Malaya (Intellectual Property)” or “High Court of Borneo (Intellectual Property)” as the case may be, would be established in Kuala Lumpur, Selangor, Johor, Perak, Sabah and Sarawak, with one (1) court already operational in the Kuala Lumpur High Court as of 17 July 2007.

Tribunal for Consumer Claims

The Tribunal for Consumer Claims is an independent body established under Section 85, Part XII, of the Consumer Protection Act 1999 which came into force on 15 November 1999 with the primary function of hearing and determining claims lodged by consumers under the Act and subject to the provisions of the Act. Before the establishment of the Tribunal, all disputes between a consumer and a supplier or manufacturer had to be brought before a civil court, which often involved protracted trials and high legal and other costs, not to mention the long delays. This website is useful for those intending to file claims under the Tribunal.

Regional Centre for Arbitration Kuala Lumpur

In Malaysia, disputes can be settled through various means and the Regional Centre for Arbitration Kuala Lumpur (RCAKL) was established in 1978 to offer another avenue of dispute resolution outside the court structure. The website offers useful information about the arbitration procedures in Malaysia.

5. Legal Profession

Lawyers in Malaysia can practice in the government or private sector. Lawyers in the government sector are administered by the Judicial and Legal Service Commission. They are transferable within the AG’s Chambers department or can be seconded to any of the state government as legal advisers. There is no division of legal profession in the private practice. A practicing lawyer is known as an advocate and solicitor and normally does all the work done by barristers and solicitors in England. There is one Bar for Peninsular Malaysia namely the Bar Council of Malaysia and a separate Bar each for Sabah and Sarawak, those being the Sabah Law Association and the Advocates Association of Sarawak respectively. A member of the Peninsular Malaysia Bar is not entitled to practice in Sabah and Sarawak. No member of the Bar in Sabah or Sarawak is entitled to practice in the other state or in Peninsular Malaysia. The Bar Council is given statutory powers to regulate the profession and acts as a general watchdog on professional etiquette and standards.

Malaysian law schools and the professional training of lawyers are modeled on the English system. Present admission requirements admit graduates from Malaysian law schools as well as graduates from Singapore, England, Australia and New Zealand. Admission to the role of advocates and solicitors is restricted to Malaysian citizens or permanent residents of Malaysia, and a person admitted to the Bar has the exclusive right to appear and plead in all courts of justice.

Useful legal sites:

Attorney General Chambers of Malaysia

Judicial and Legal Training Institute

Legal Affairs Division

Legal Aid Bureau

Bar Council of Malaysia

· Kuala Lumpur Bar

· Selangor Bar

· Penang Bar

· Johore Bar

· Pahang Bar

· Malacca Bar

· Kedah/Perlis Bar

Sabah Law Association

Law firms in Malaysia

· Malaysian Bar – Legal Firms Directory

· Law firms – Hieros Gamos Legal Firms Directory

· Legal 500 – Malaysian Law Firms

Legal Education (in public universities)

· University of Malaya – Faculty of Law

· Universiti Kebangsaan Malaysia – Faculty of Law

· International Islamic University Malaysia - Ahmad Ibrahim Kulliyyah of Laws

· Universiti Teknologi MARA Faculty of Administration and Law

· University Utara Malaysia – Faculty of Public Management and Law

6. Note on Finding Primary Malaysian Legal Sources

Most of the Malaysian laws originate from any of the three principal sources of law-making authorities: the Legislature, Executive and Judiciary. Laws can be easily traced by knowing their principal sources. Although Malaysia has yet to have a one-stop center for free access to law, more and more of the laws are now freely available in the Internet through various government websites. However, there are two common limitations which can be discerned. Firstly, most of the laws in the Internet are current law, promulgated post-independence. Secondly, the statutes presented in these government websites are mostly the principal statutes as they were originally enacted and in a non-consolidated form, except where released in reprinted versions. Subsequent amendments of the law may be available in a separate text. It may be quite difficult at times to determine whether a legislative text is current, accurate, and complete when referring to these principal texts alone. The same goes for judicial decisions. Normally, only raw judgments are provided on the court websites without any editorial features such as head notes and other annotations. This certainly does not assist researchers in finding out more about the case, such as whether the case was further appealed.

Other than on the websites of the three law-making institutions where law is officially made accessible to the public freely i.e. on (i) the Attorney General’s Chambers’ website, (law-making institution for the Executive); (ii) the Parliament’s website and (iii) the Court’s websites, there are some ministries, statutory agencies, Bar Councils and local governments which may also include their relevant law and regulations on their respective websites. To access these websites, one may either choose to access them through legal portals, hosted locally or internationally, or one may access them directly from the websites of law-making institutions in their jurisdictions. Although they are not designed for sophisticated or exhaustive research compared to the service provided by commercial legal providers, these free-access sites are still the best alternative for Malaysian legal resources that are currently available.

(C) Hauser Global Law School Program, New York University School of Law