Journal of Malaysian and Comparative Law
The Journal of Malaysian and Comparative Law (JMCL) [ISSN 0126-6322/e-ISSN 2948-3786] is a refereed journal published annually by the Faculty of Law of the Universiti Malaya which began publication in 1974. It publishes original unpublished works comprising articles, comments, case notes and reviews on the whole spectrum of legal topics and issues. Currently, it publishes twice a year (June & December). Commencing with the June 2024 edition, the Journal has transitioned fully to online publication, discontinued its print edition, and adopted an online-first approach, under which accepted peer reviewed papers are published immediately upon approval of the Managing Editor.
Faculty of Law Universiti Malaya 50603 Kuala Lumpur MALAYSIA
Hinduism is the third largest, and possibly the oldest religion in the world. It encompasses a rich and diverse array of beliefs, customs, practices, and philosophies. The relationship between Hinduism, the law, and the environment is intricate and multi-dimensional, influenced by diverse theological, philosophical, and cultural perspectives. Using a qualitative methodology encompassing an analysis of the relevant religious text on Hinduism as well as contemporary data on pertinent environmental issues plaguing the world today, this article seeks to draw a nexus between the ancient religion of Hinduism in the context of modern environmental issues, and explore the diverse ways in which Hindu environmental ethics can impact modern conservation efforts on the preservation of the environment. The findings show that ancient wisdom is still relevant today in our quest to protect and conserve the environment around us.
THE CHANGE OF POSITION DEFENCE IN MALAYSIAN UNJUST(IFIED) ENRICHMENT: REFLECTIONS FROM ENGLISH LAW
In England and in Malaysia, the recognition of unjust or unjustified enrichment has necessitated the simultaneous acceptance of a defence of change of position. In stark contrast with the English experience, the leading apex-court decision in Malaysia, which recognised this new private law action, made no elaboration on the defence. This article hopes to fill that gap by evaluating the normative place of change of position against four peculiarities of the Malaysian unjust(ified)-enrichment-and-restitution landscape. The first feature is the existence of a statutory restitutionary regime provided for by the Contracts Act 1950, which stands in parallel with this newly recognised liability at common law. The second feature is the seemingly adopted ‘value surviving’ test for enrichment, as opposed to a ‘value received’ model. The third feature is Malaysian law’s adoption of the Civilian-inspired ‘absence of basis’ approach. The fourth feature is the elusive ‘unconscionability’ inquiry that has crept into the unjust(ified) enrichment framework. Each of these features interacts with the change of position defence in a manner which presents unique and unresolved challenges to the doctrinal coherence of this still-nascent legal subject.
MANAGING POLYCHLORINATED BIPHENYLS IN COMPLIANCE WITH THE STOCKHOLM CONVENTION: BANGLADESH IN CONTEXT
The use of hazardous substances (HS), chemicals and hazardous waste (HW), invites multifaceted issues affecting the economy, society and natural environment. The findings of literature by authoritative scientific bodies confirm that the production and excessive use of HS and HW are deleteriously impacting the environment, ecosystems, human health, and wildlife. Due to their ability to persist in nature for long periods and cause harm, some of these chemicals are classified as persistent organic pollutants (POPs). Among these POPs, polychlorinated biphenyls (PCBs) are significant and have been used in various industrial and commercial products, mainly in electrical equipment. The environmentally sound management (ESM) of PCBs, other hazardous POPs, and their wastes is a pressing concern for all States regardless of their size and nature. Developing countries, in particular, have become victims of excessive use for various reasons. To address issues pertaining to POPs, the Stockholm Convention (StC) was adopted in 2001. Bangladesh, as a party to the StC, has taken various regulatory initiatives to control the release and ensure the ESM of POPs and various HS, chemicals and HW. This article assesses the extent to which and the effectiveness with which Bangladesh’s legal and policy instruments have integrated the obligations of the StC regarding the ESM of PCBs. The findings of this research have the potential to guide the stakeholders of Bangladesh in bringing necessary changes in its regulatory framework, and also for other developing countries in charting their future directions regarding PCBs management.
THE BEST INTEREST OF THE CHILD PRINCIPLE: A COMPARATIVE STUDY OF LEGISLATIVE AND JUDICIAL RECOGNITION IN CHILD PROTECTION AND FAMILY LAWS IN AUSTRALIA AND MALAYSIA
The best interest of the child principle has played a significant role in achieving children’s rights around the world since the adoption of the United Nations Convention on the Rights of the Child, 1989 (“CRC”). For example, Australia has a clear legislative as well as judicial assertion of the best interest of the child principle. However, there are no general provisions that incorporate the best interest of the child principle within Malaysia’s main child protection laws, despite the country being a treaty state of the CRC. Research has been conducted to explore the incorporation of the best interest of the child principle within the Sharia perspective in the Malaysian context; however, there is limited research on the incorporation and adoption of the principle within the general children and non-Muslim family law legislations in Malaysia. The lack of universal incorporation of the principle within federal legislation in Malaysia and the absence of supporting legislative guidelines to determine the principle has been a source of limitation for the state and other actors. Employing doctrinal legal research methods and comparative law methodology, this research examines and analyses the legal framework concerning the incorporation and application of the best interest of the child principle, both in Malaysia and Australia. The findings of this research indicate that in comparison to Australia, Malaysia lacks specific provisions for the best interest of the child principle, pursuant to Article 3 of the CRC. Furthermore, there is no clear and comprehensive legitimate guidelines on the application of the principle in key child protection and non-Muslim family law legislations. This research, therefore, proposes reforms to key federal legislation on the protection of children and non- Muslim family law, specifically the Child Act 2001, the Law Reform (Marriage and Divorce) Act 1976, and the Guardianship of Infants Act 1961, and suggests including provisions that require consideration of the best interest of the child as the primary consideration, supported by legitimate guidelines.
WHAT SHAKESPEARE TEACHES US ABOUT LAW, POWER, AND PEOPLE
UNRAVELLING THE BASIC STRUCTURE DOCTRINE IN MALAYSIA
In simplest terms, a constitution of a nation sets out the form of government, the limits of government and the goals for exercise of governmental power. Being a country’s foundational charter delineating its structural framework, it should be a ‘living document’ ie something that is able to adapt and change to remain ever relevant with the ‘changing circumstances, needs and aspirations of a nation and its people’. In Malaysia, the Federal Constitution provides for a mechanism to amend itself, to keep up with the evolution of time. These powers of amendment are vested solely with the Malaysian Parliament. However, in recent times, there has been raging an extremely intriguing battle within the highest echelons of the Malaysian Judiciary on the invisible limitations on the powers of the Malaysian Parliament to amend the Federal Constitution. This invisible limitation has come to be known as the ‘basic structure doctrine’. In a nutshell, what this doctrine entails is that there are covert limitations on Parliament’s powers to amend the Federal Constitution, if those amendments result in the ‘basic structure’ of the Federal Constitution being destroyed. This article intends to seek the meaning of a ‘basic structure’ of a constitution, what this means in the context of the Malaysian Federal Constitution, how the Malaysian Judiciary has dealt with this issue, and the future of the basic structure doctrine in Malaysia.
CYBER SEXUAL HARASSMENT & VICTIM PROTECTION LAWS: A COMPARATIVE STUDY OF MALAYSIA, SINGAPORE, AND AUSTRALIA
Sexual harassment is a widespread phenomenon, affecting various people across the globe, irrespective of gender and age. With the technological revolution, sexual harassment has infected the digital realm in the form of cyber sexual harassment, where an individual can be sexually harassed without the physical presence of the harasser. As cyberspace is a global platform for communication, the harasser could harass his target from any part of the world while remaining anonymous. On the other end, the victim could suffer in the real world with harm such as emotional disturbances and mental health issues. Thus, this paper aims to address the gap in Malaysian laws to protect victims of cyber sexual harassment. To achieve this aim, the sexual harassment laws in Malaysia and their weaknesses will be examined. Following this, a comparative study will be conducted on laws relating to cyber sexual harassment in Singapore and Australia.
THE FUTURE OF E-COMMERCE DISPUTES: AN ANALYSIS OF MULTILATERAL DISPUTE RESOLUTION MECHANISMS
The globalisation movement and the rapid growth of e-commerce necessitate effective dispute settlement mechanisms in multilateral trade agreements. The qualitative analysis conducted on the dispute settlement mechanisms in the World Trade Organization (WTO), the Association of Southeast Asian Nations (ASEAN), and the Regional Comprehensive Economic Partnership (RCEP) reveals the regulation of electronic commerce (e-commerce) and demonstrates the efforts and limits of these three trade agreements. This article compares the dispute settlement mechanisms and their legal arrangements for e-commerce within the WTO, ASEAN and RCEP frameworks to determine the most efficient for resolving e-commerce disputes in the Asian region. The results show that existing trade agreements offer a basic framework for future digital trade or e-commerce regulation, but they only provide a limited scope. The resolution of e-commerce disputes remains an ongoing issue for Member States, challenging traditional dispute settlement mechanisms and thereby requiring a new mechanism. The Online Dispute Resolution (ODR) mechanism stands out as a promising solution for the sustainable growth of e-commerce and the resolution of the surge in trade disputes.
UTILIZING ARTIFICIAL INTELLIGENCE IN INVESTOR-STATE DISPUTE SETTLEMENT: PRESENT ISSUES AND FUTURE CHALLENGES
The integration of Artificial Intelligence (AI) into Investor-State Dispute Settlement (ISDS) has emerged as a transformative force, promising to streamline complex investor-state arbitration processes and enhance the accuracy of legal determinations. However, this technological advancement also presents several challenges, necessitating a critical examination of the role of AI in shaping the future of ISDS. This paper evaluates the impact of AI on ISDS, highlighting its potential to improve investor-state arbitration by enriching efficiency, objective decision-making, and advanced evidence analysis. It acknowledges the capacity of AI in refining risk assessment and predicts dispute outcomes, providing a cutting-edge approach to ISDS. However, the analysis also addresses significant concerns, including algorithmic bias, the ethical implications of decision-making, and the overreliance on technology that may overlook the complexity of human judgment. To overcome these challenges, the paper suggests a regulatory framework that mandates transparency and accountability, ensures justice through rigorous algorithm audits, and promotes a collaborative relationship between humans and AI. By maintaining human autonomy and enhancing the role of AI as an assistive tool, especially in intricate cases, the paper advocates for a balanced integration of AI in ISDS, striving for a harmonious blend of technological innovation and human expertise in future arbitration processes.
THEIR LAW IN OUR HANDS – THE APPLICATION OF ENGLISH LAW ACT 1993 (SINGAPORE): ARE THERE LESSONS FOR THE CIVIL LAW ACT OF 1956 (MALAYSIA)?
The 13th Tun Suffian Memorial Lecture 2024 delivered at the Faculty of Law, Universiti Malaya, Kuala Lumpur, 50603, Malaysia on 10 October 2024.
THE TERM JIHAD IN ISLAMIC JURISPRUDENCE WITH REFERENCE TO MODERN INTERNATIONAL LAW: A CRITICAL EXAMINATION
The term “jihad” carries with it several negative connotations, where the term can be linked with acts of violence, extremism, and terrorism. This article goes against such views and argues that jihad is defensive in nature. It is to be contended that jihad can be utilized as a cause for self-defence, not as a means to enable aggression. In addition, the role of jihad under Islamic law will be compared briefly within the context of modern international law. Moreover, this article will further clarify the term “jihad” by reviewing its meaning and common misconceptions. This article also highlights that the term jihad is misunderstood, it is essentially a tool of selfdefence and a last resort against oppressors and mandates that all other efforts must be tried before turning to violence. The claim that jihad is a holy war against non-Muslims is thus untrue from a philosophical and theoretical standpoint and does not reflect the fundamental principles of Islamic jurisprudence. Instead, this paper argues that jihad is a cause for self-defence rather than a cause of aggression.
ADDRESSING ALGORITHMIC PRICING COLLUSION IN MALAYSIAN COMPETITION LAW: CONSIDERATIONS FOR ARTIFICIAL INTELLIGENCE ETHICAL GOVERNANCE
Artificial Intelligence (‘AI’) tools in the digital economy empower electronic agents to facilitate e-commerce transactions for digital enterprises in Malaysia. The growing number of Malaysian digital enterprises utilising digital platforms that employ AI algorithms - to customise services, predict market trends, and improve their pricing models - may result in various anti-competitive practices and tacit collusion amongst these enterprises. The absence of a formal agreement or human interaction evidencing an intent to co-ordinate poses regulatory challenges to monitor and control algorithms that trigger anti-competitive behaviour. The paper focuses on anti-competitive tacit collusion in algorithmic price setting. In the absence of formal agreement or human interaction, the possibility of colluding has caused various regulatory challenges to monitor or control such use of algorithms that may result in anti-competitive practices. This may render the Competition Act 2010 and the role of the Malaysian Competition Commission as nugatory. The paper, firstly, sets out the technological background of algorithmic pricing and collusion and its impact on consumer welfare; secondly, it examines Malaysian competition governance and the inadequacy of the regulatory tools to address the challenges presented by anti-competitive practices arising from tacit algorithmic collusion; and finally, the paper proposes the use of an AI ethical governance mechanism by the developer or deployer of the AI to ensure algorithms function ethically when used by digitised enterprises in Malaysia. This paper serves as a prescient proposal to the consequential issues of algorithmic pricing and collusion.
THE ESTABLISHMENT OF ONE HIGH COURT FOR MALAYSIA: A PIPE DREAM OR A POSSIBILITY?
On 9 July 1963, the Malaysia Agreement was signed in London for the formation of Malaysia, which would consist of among others, the Federation of Malaya, Sabah and Sarawak. Malaysia officially came into being as a sovereign nation on 16 September 1963. The 1957 Federal Constitution (which hitherto only applied to the Federation of Malaya) was then extensively amended to make it into a Federal Constitution for Malaysia. However, many aspects of the judicial and legal system as it was before the formation of Malaysia were maintained, as a compromise for the states of Sabah and Sarawak to join Malaya and become the Federation of Malaysia. On the advent of the formation of Malaysia, the Cobbold Commission was of the view that due to the distance between West and East Malaysia, there should be a separate High Court in the Borneo territories presided over by its own Chief Justice, with appeals going to a Federal Supreme Court for the whole of Malaysia. The two High Courts in Malaysia have remained in place until now, almost 60 years later. This paper seeks to explore whether there is still a need for there to be two High Courts in Malaysia, and whether there is at least the possibility of establishing a single High Court for the whole of Malaysia in place of the current two High Courts of co-ordinate jurisdiction and status in Malaysia.
GOOD FAITH IN CONTRACT LAW: THE MALAYSIAN PERSPECTIVE
The recognition of a general duty of good faith in contracts varies by country. In Malaysia, it has become the subject matter of recent cases but without much academic writing. This article seeks to complement the existing legal literature and to generate discussion on this area of law. This article uses a doctrinal approach with comparative law analysis to examine the duty of good faith in contract law. Like England and Singapore, Malaysia does not recognise a general duty of good faith in contracts. However, it has developed the law on a piecemeal basis through contractual implied terms. This approach is pragmatic for two reasons: first, it acknowledges that good faith is already inherent in Malaysian contract law; second, context is crucial- a duty of good faith will only be implied by law and/or in fact into contracts when the tests of implied terms are satisfied. This approach is more likely to respect the intention of the parties than having a general overriding duty of good faith since it affirms the freedom of contract. This article further highlights the potential challenges arising from the introduction of ‘relational’ contracts as to whether a general duty of good faith can be implied in such contracts. It is argued that if the parties intend to impose a duty of good faith, they should expressly stipulate it in the contract for the avoidance of doubt.
ABOLITION OF NATURAL LIFE SENTENCE IN MALAYSIA: A CRITICAL ANALYSIS
A natural life sentence is a severe punishment in which prisoners remain in prison until death. This sentence is used as an alternative to the death penalty in exceptional situations which do not mandate the punishment of death. In Malaysia, the Court was empowered by the law till 3rd April 2023 to impose a natural life sentence in the criminal justice system based on Section 130A(f) of the Penal Code. This law aroused the vexed issue that a natural life sentence does not achieve the purposes of sentencing in the criminal justice system. In addition, a natural life sentence violates human rights laws as it is inhumane or degrading to the accused. This paper aims to critically analyse and examine the rationales and consequences of imposing a natural life imprisonment. The qualitative research method has been used in gathering and analysing data. This study concludes that a natural life sentence contradicts human rights, fails to achieve public interest, violates the freedom and dignity of the prisoners, and also fails to attain penological goals. This research suggests that the natural life sentence should be abolished around the world with an option of parole to establish human pride and dignity and protect the social and human rights of the prisoners.
SPECIAL FINANCIAL PROVISIONS FOR SABAH UNDER THE FEDERAL CONSTITUTION: THE ISSUE OF THE 40% SPECIAL GRANT
In the asymmetrical and consociational federal system of Malaysia, the special position of the Borneo States is prescribed in the Malaysian Federal Constitution. The financial provisions in the Federal Constitution, include exclusive assignment of special revenues and resources to the Borneo States. Specifically, the two-fifths or 40% Special Grant to Sabah under Article 112C and part IV of the Tenth Schedule of the Federal Constitution is popularly highlighted in recent times. This provision originates from the Malaysia Agreement 1963 and the Malaysia Act 1963. The implementation of the 40% Special Grant appears as a conundrum and will be deliberated on an analytical basis in this article. Before embarking on the discourse of the provisions of allocation of grants, revenue and the issue of the 40% Special Grant to Sabah, this article shall first discuss the special position of the Borneo States in the Federal Constitution. An analysis on the 40% Special Grant shall then be made. This article will address the relevant provisions on the 40% Special Grant including its review, the constitutional issues and the implementation of the 40% Special Grant through voyage of time, as well as an analysis of the Federal Estimates of Revenue and Expenditure from 1964 onwards. To address issues pertaining to the 40% Special Grant, several actions are recommended. Any dissensions pertaining to the issues of review of the 40% Special Grant or determination of revenue for purposes of calculation of the 40% Special Grant must be conciliated in strict compliance with the provisions of the Federal Constitution. Redress may be sought from different avenues such as appointment of an independent assessor, public litigation in the courts of law or political negotiations on mutual consensus.
Emeritus Professor Datuk Dr. Shad Saleem Faruqi
DETERMINING THE JURISDICTION OF COURTS IN A MULTIMODAL TRANSPORT CARRIAGE UNDER NIGERIAN LAW – CARDINAL IN AN AFRICAN CONTINENTAL FREE TRADE AREA
The recent establishment of the African Continental Free Trade Area (‘AfCFTA’) was predicated on the belief that increased intra-African trade and market integration would benefit the continent. The pact is expected to increase intra-African trade by making Africa a single market, harnessing its immense potential of over a billion persons and the Gross Domestic Product of circa three trillion United States Dollars. Without access to markets and resources, growth and continued poverty in society will stagnate. Accordingly, transportation is essential to international trade and regional integration. Research shows that multimodal transportation could create a cheaper transportation option than unimodal transportation. According to statistics, multimodal transport can reduce transportation costs by circa 20%, help enhance effectiveness in transportation by 30%, reduce the risk of damage to cargo by 10%, and aid energy savings and emissions. The United Nations Economic Commission for Africa (UNECA), through its Regional Advisor on Trade, has advised that the establishment of Multimodal Transport Operators (MTOs) should be encouraged to ensure the non-interrupted flow of goods from the origin to the destination. This paper particularly focuses on the determination of the jurisdiction of multimodal transportation and the extent to which the current lack of a clear legal framework affects a predictable and foreseeable determination of the jurisdiction of courts. The research considers these issues at a time when African leaders have come together to sign an agreement for the establishment of the AfCFTA.
UNDERSTANDING THE IMPACT OF DNA EVIDENCE IN THE CRIMINAL JUSTICE SYSTEM
The widespread use of deoxyribonucleic acid (‘DNA’) data to detect offenders and exonerate the innocent have been applauded by law enforcers and the judiciary as a breakthrough in the science of criminal investigation. However, the use of DNA evidence in court and methods of collection have raised important legal, medical and ethical questions. Among the questions raised is if the provisions compelling suspects to give DNA samples violate their personal autonomy and privacy rights. Despite this, the Deoxyribonucleic Acid (DNA) Identification Act 2009 (‘DNA Act’) permits law enforcers to collect DNA samples from suspects, detainees, prisoners and drug users. Such practices demonstrate how the DNA Act is able to reconfigure the criminal justice system through methods that are capable of overriding a person’s autonomy and privacy rights. Therefore, this article aims to examine three main areas. First, how the DNA Act provides an avenue for law enforcers to collect DNA through force. Second, how illegally obtained evidence can be admitted in court on the grounds of relevancy. Third, whether the weight and value of DNA evidence is sufficient to prove a case beyond reasonable doubt. The article will conclude by asserting two main points. First, that compelling certain individuals to give their DNA samples infringes a person’s right to privacy and autonomy. Second, that DNA samples can only estimate the probability that the donor is the source of the sample but cannot confirm the person’s participation in a crime. Therefore, this article argues that DNA evidence alone cannot implicate a person beyond reasonable doubt in a criminal trial.
LEGAL EFFECT OF NO ORAL MODIFICATION CLAUSE IN MALAYSIA: A QUEST FOR FREEDOM OF CONTRACT
A ‘No Oral Modification’ clause (‘NOM clause’) essentially prohibits any subsequent variation of the contract unless it is similarly made in writing. Although such clause serves as a boilerplate clause in most circumstances, it has however unexpectedly become the cause of litigation in many instances across Commonwealth jurisdictions, dealing with the predicament of what should happen where the parties have subsequently orally agreed to vary their original agreement despite the existence of a NOM clause. This conundrum depicts that the notion of freedom of contract is itself not entirely straightforward. To this end, three distinct schools of thought in interpreting the same have been recently developed by the apex court of the United Kingdom and Singapore in MWB Business Exchange Centres Ltd v Rock Advertising Ltd and Charles Lim Teng Siang and another v Hong Choon Hau and another respectively. This article seeks to examine the legal approach(es) taken by the Malaysian courts in construing the enforceability of the NOM clause in the light of Malaysian case law and legislative regime, as well as the distinctive positions adopted by its judicial counterparts. It is found that while there appears to be at least two decisions of the Malaysian High Court adopting slightly diverging approaches, the local judicial trend largely suggests that the parties may contract out of section 92 of the Malaysian Evidence Act 1950 (and the exceptions therein) and the legal effect of the NOM clause is to be upheld. It is also submitted that a NOM clause is useful for several sensible commercial reasons.
LOST IN THE JURISDICTIONAL JUNGLE AND INTERPRETATIONAL MAZE: POWERS OF BANGLADESH COURTS IN RELATION TO FOREIGN SEATED ARBITRATIONS
This article critically assesses the accuracy of the majority judgment in the latest case of Accom Travels and Tours Limited v Oman Air S.A.O.C before the High Court Division of the Supreme Court of Bangladesh with respect to the jurisdiction of Bangladesh courts in foreign seated arbitrations under the Arbitration Act (Act No. 1) 2001 (Bangladesh). The article argues that the majority judgment in Accom Travels and Tours Limited v Oman Air S.A.O.C lost sight of the jurisdictional parameters of the court and the related interpretational elements under the Arbitration Act (Act No. 1) 2001 (Bangladesh) in relation to foreign seated arbitrations in the light of comparable judgments of India, United Kingdom and the United States of America.
We end the year 2022 with the second issue of Volume 49 of the Journal of Malaysian and Comparative Law (JMCL). We are pleased to announce that starting from the first issue of Volume 49 published in June this year, JMCL is now available fully online via subscription. The previous volumes are fully accessible online without any subscriptions. This is to give JMCL more accessibility and visibility. Most importantly, it is to ensure that our articles reach audiences far and wide so as to impart, spread and share the valuable research and knowledge contributed by our authors.
Separation of Powers After the Malaysian National Security Council Act 2016
Since the enactment of the National Security Council Act 2016 (‘NSCA 2016’), there have been concerns that the NSCA 2016 potentially usurps the Federal Constitution of Malaysia. The NSCA 2016 introduces a series of exceptional security measures that bypasses certain constitutional safeguards and lifts constitutional restrictions on the infringement of the liberty of the people. In Datuk Seri Anwar Ibrahim v Government of Malaysia (‘NSCA No.1’), the Federal Court refused to rule on a challenge brought against the constitutionality of the NSCA 2016 except to express doubts on its constitutionality. The Federal Court’s refusal was premised on the reasoning that the challenge was mounted in the absence of a specific exercise of powers under the NSCA 2016. As the case was ‘abstract, academic or hypothetical’ in nature and after considering Article 128(2) of the Federal Constitution and s 84 of the Courts of Judicature Act 1964, the Federal Court held that the case was non-justiciable. This case note critically evaluates this decision in light of the separation of powers principle.
Copyright (c) 2020 Faculty of Law University of Malaya 50603 Kuala Lumpur MALAYSIA
Orang Asli Customary Land and Adat Perpatih
There is a dearth of scholarly writing on the customs and customary law of the Orang Asli communities, particularly on land matters, the ownership of which is usually contentious. Land is an essential foundation for the vulnerable indigenous peoples to maintain their livelihood and identities. By providing a case analysis on the customs, practice, use and traditions relating to the land of the Orang Asli Temuan in Negeri Sembilan, drawn upon the framework of common law jurisprudence on indigenous peoples’ customary land, this article illustrates the significance of land and its security for the communities. In particular, this article investigates the concept and perspectives relating to customary land among the Orang Asli in selected villages, namely, Langkap in Kuala Pilah, Parit Gong in Jelebu and Bukit Kepong in Pasir Panjang. The article takes a qualitative approach through interviews and focus group discussions with the headmen, leaders of the communities, and relevant stakeholders, including an expert in the Adat Perpatih (customary laws) which are practiced by the Temuan Orang Asli. The research found that the Temuan people regard the land on which they live as a territory belonging to the community where the members have different types of rights. Within that territory, families have ownership rights over certain areas meant for different uses including for settlement and economic activities with boundaries that are known to the community of members. The ownership of these areas of land is passed to the next generation according to their customary rules. This also includes the land regarded as ancestral land passed from their ancestors. Beside this part of the land, areas surrounding the settlement and agricultural areas within the territory are regarded as common access areas meant for foraging to find food or other resources to add to their source of income. This topic is under-researched yet vital for policy makers, decision-makers and the public in paving the way for greater protection of indigenous peoples’ lands.
Determining the Law to Govern an Arbitration Agreement
This article deals with the complexities surrounding the determination of the governing law in an international commercial arbitration, particularly the law which is to govern the arbitration agreement itself. The arbitration agreement is separate from the main contract or agreement between the contracting parties. Thus the question arises whether the arbitration agreement is to be governed by the law of the main underlying contract or the law of the seat of the arbitration. This article aims to examine the three stage approach test as founded in Sulamerica Cia Nasional v Enesa Engelharia and its application in three different jurisdictions, namely, Singapore, United Kingdom and Malaysia. The article then discusses the case of Enka v Chubb which appears to have resolved some of the complexities in this area of the law. This article argues that the adoption of a uniform international choice of law rule for arbitration agreements in the form of a validation principle is ultimately the way forward to end the quest for a proper approach to determine the governing law for the arbitration agreement.
Copyright (c) 2021 © Copyright is vested in the Faculty of Law, University of Malaya. No part of this publication may be reproduced or transmitted in any form or by any means whatsoever, without prior permission from the Faculty. All enquiries seeking permission to reproduce any part of this publication should be addressed to the Managing Editor.
The December 2020 edition kicks off with the piece by Siva Subramaniam entitled, ‘Determining the Law to Govern an Arbitration Agreement: A Quest for the Best Approach’. In this article, the author analyses the complexities surrounding the determination of the parties’ choice of law in relation to an international commercial arbitration. This is especially so because the arbitration agreement is separate from the main contract, and the arbitration agreement could be governed either by the law of the underlying contract or the law of the seat of the arbitration. In ‘Orang Asli Customary Land and Adat Perpatih: A Case Study on Temuan Land in Negeri Sembilan’, Izawati Wook and others delve into the customs and customary law of the Temuan community in Negeri Sembilan. The authors adopt a qualitative approach through interviews and focus group discussions to investigate the concept, meaning and perspectives of customary land among the Orang Asli in several selected villages in Negeri Sembilan. Last but not least, Eden HB Chua analyses the Federal Court decision in Datuk Seri Anwar Ibrahim v Government of Malaysia [2020] 3 CLJ 593, focusing on the Federal Court’s refusal to rule against the constitutionality of the National Security Council Act 2016. Dr. Sharifah Suhanah Syed Ahmad Executive Editor