Professional Documents
Culture Documents
Syariah Courts PDF
Syariah Courts PDF
MAY 2015
1. The Syariah Court: Its Position Under the Malaysian Legal System 11. Wavering on Waivers 18. GST Rules or Ruins?
From a Ship Financiers Perspective 24. The Law on Trade Secrets 28. Partner Profile 29. Senior Associate Profiles
in this issue
t has been said that Islamic law and the civil law exist as parallel systems in Malaysia.
The proposition, while attractive, is grossly inaccurate in law. As it stands today, the
administration of Islamic law is confined to personal law for Muslims and the Syariah court
is subordinate to the courts established by the Federal Constitution and under federal law,
as this article will show.
The Syariah court has in recent years become a prominent subject in public discussion,
not least of all with the constitutional provision that Islam is the religion of the Federation.1
It is vital that the history of how religion came to be inserted in the Federal Constitution
be first examined, objectively and dispassionately, given that the subject is fraught with
difficulty.
Federation of Malaya
The Federal Constitution has its roots in the Federation of Malaya Agreement 1948
(the FMA 1948) which established a federation known as the Federation of Malaya
or Persekutuan Tanah Melayu comprising the nine Malay states2 and the Settlements3
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Malaysia
Supra, n 10 at 130
Ibid, at 163
FM Ordinance No 55 of 1957
Tunku Abdul Rahman (Hansard, 1 May 1957)
Hence, the Cobbold Commission
Report of the Commission of Inquiry, North Borneo and Sarawak
Ibid, at 53-54; Or see
<http://en.wikisource.org/wiki/Report_of_the_Commission_of_Enquiry,_North_Borneo_and_Sarawak,_1962/CHAPTER_4/general_matters>
Malaysia Act (Act No 26 of 1963)
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Jurisdictional controversies
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Berjaya Books Sdn Bhd v Jabatan Agama Islam Wilayah Persekutuan Wilayah Persekutuan & Ors [2014] 1 MLJ 138
Jabatan Agama Islam Wilayah Persekutuan (Department of Federal Territory Islamic Affairs)
By virtue of s 13 of the Syariah Criminal Offences (Federal Territories) Act 1997
Supra, n 33
Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya Books Sdn Bhd & Ors [2015] 1 AMR 739
Ibid, at 761(53)
Jabatan Hal Ehwal Agama Islam Negeri Sembilan (Department of Negeri Sembilan Islamic Affairs)
Syariah Criminal (Negeri Sembilan) Enactment 1992, s 66
Muhamad Juzaili Mohd Khamis & Anor v State Government of Negeri Sembilan & Ors [2015] 1 AMR 673; [2015] 1 CLJ 954
Decided by Mohd Hishamudin Yunus, Aziah Ali and Lim Yee Lan JJCA
Jabatan Kemajuan Islam Malaysia (Department of Islamic Development Malaysia)
<http://www.themalaymailonline.com/malaysia/article/jakim-confirms-putrajayas-plan-for-shariah-equivalent-to-federal-court>; <http://www.thestar.com.
my/News/Nation/2014/11/15/civil-court-syariah-court-jakim/>
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(b)
(c)
(d)
(e)
(f)
(g)
Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri & Ors [2014] 4 MLJ 765
Jerry WA Dusing @ Jerry W Patel & Anor v Menteri Keselamatan Dalam Negeri Malaysia & Anor [2015] 1 MLJ 675
<http://english.astroawani.com/malaysia-news/jais-returns-seized-bible-azmin-ali-48402>
Supra, n 45 at 782(12)
Ibid, at 782(18)
Supra, n 45
Article 74 (2) of the Federal Constitution
Read with the Ninth Schedule of the Federal Constitution, Item 1 of List II (State List)
Ng Wan Chan v Majlis Ugama Islam Wilayah Persekutuan & Anor (No 2) [1991] 3 MLJ 487
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Ibid, at 489C-F
Ibid, at 490D
Shaik Zolkaffily bin Shaik Natar & Ors v Majlis Agama Islam Pulau Pinang dan Seberang Perai [1997] 3 MLJ 281 (see also Barkath Ali bin Abu Backer
v Anwar Kabir bin Abu Backer [1997] 4 MLJ 389)
Shaik Zolkaffily; supra, n 56 at 293F
[1999] 1 MLJ 489
Ibid, at 502A
Ibid, at 502G
Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1; Md Hakim Lee v Majlis Agama Islam Wilayah Persekutuan,
Kuala Lumpur [1998] 1 MLJ 681
Dalip Kaur; supra, n 61 at 10A
Supra, n 58 at 502G
Ibid, at 502B
Ibid, at 502C
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Unlike the High Court, the Court of Appeal and the Federal
Court, which are established by the Federal Constitution,68
the Syariah court has been equated to the Sessions Court
and Magistrates Court which, in the Federal Constitution,
are called inferior courts.69 The Syariah courts are mere
State courts and do not enjoy the same status and
powers as the High Court.70
It follows that the High Court has supervisory powers over
the Syariah court just as it has supervisory powers over
other inferior tribunals, such as the Industrial Court.71
Quite clearly, the Syariah court cannot be considered any
greater than the inferior courts.72
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No overlapping jurisdiction
Abdul Kahar bin Ahmad v Kerajaan Negeri Selangor (Kerajaan Malaysia, intervener) & Anor [2008] 3 MLJ 617
Charged with five offences under various provisions of the Syariah Criminal Offences (Selangor) Enactment No 9 of 1995
Supra, n 75 at 622H-I
Ibid, at 623C
Ibid, at 623G
Ibid, at 622
Siti Hasnah Vangarama Abdullah v Tun Dr Mahathir Mohamad & Ors [2012] 7 CLJ 845 at 854(14)
Shaik Zolkaffily supra, n 56 at 293F
Ibid
Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1 at 7F
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Conclusion
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Mohamed Habibullah bin Mahmood v Faridah Bte Dato Talib [1992] 2 MLJ 793 at 804A (see also Professor Ahmad Ibrahim, The Amendment of art. 121
of the Federal Constitution: Its effect on the Administration of Islamic Law [1989] 2 MLJ xvii; cited in Latifah Mat Zin, supra, n 69 at 117I
Latifah Mat Zin; supra, n 69 at 118C-E
Ibid, at 118F
Ibid, at 118G; Article 128 of the Federal Constitution
Supra, n 88
Ismail bin Mohamad v Wan Khairani bt Wan Mahmood and another appeal [2011] 1 MLJ 743 at 750G
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Wavering on Waivers
|by Chng Keng Lung|
The law of variation, waiver and estoppel, it has been
said, is a difficult subject. Perhaps the following passage
explains it best:
The law is still in a state of development and neither
the boundaries nor the requirements of the two
doctrines (waiver and estoppel) are as yet clearly
marked out. The area is further confused by the
inconsistent use of terminology. Different judges
and writers use different words to mean the same
thing and the same words to mean different things.
Waiver, total waiver, waiver of remedy, waiver
of rights, election, abandonment, equitable
estoppel, quasi estoppel and waiver estoppel are
among the expressions which have been used. It
is clear that several of these expressions mean the
same thing.1
This article examines the doctrine of waiver and its
application in this jurisdiction.
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Common elements
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Furmston, supra n 1 at 366-367; Chitty on Contracts (29th Ed, Sweet & Maxwell, 2004), Vol 1, at 1303, para 22-044 [Chitty]
Chitty, supra n 2
Furmston, supra n 1, para 2.103
Ibid, at 369, para 2.107
Youell & Ors v Bland Welch & Co Ltd (The Superhulls Cover case) (No 2) [1990] 2 Lloyds Rep 431 at 450
Sean Wilken and Karim Ghaly, The Law of Waiver, Variation and Estoppel (3rd Ed, 2012) at 43, para 4.08 [Wilken and Ghaly]
Furmston, supra n 1 at 369, para 2.107; Plasticmoda Societa Per Azioni v Davidsons (Manchester) Ltd [1952] 1 Lloyds Rep 527
Wilken and Ghaly, supra n 7 at 59, para 4.45
Chitty, supra n 2 at 1304, para 2-406
Furmston, supra n 1 at 364, para 2.101
Wilken and Ghaly, supra n 7 at 40, para 4.01
Furmston, supra n 1 at 365, para 2.101
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Total waiver
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Forbearance waiver
This form of a waiver may be described as:
The abandonment of a right in such a way that the
other party is entitled to plead the abandonment
by way of confession and avoidance if the right is
thereafter asserted.24
Forbearance waiver may arise before or after a
contractual term falls due for performance.25 The effect
of a forbearance waiver in the context of a breach of
contract is that the waivor is prevented from complaining
of any breach of the term, the performance of which has
been waived.26
Unlike a waiver by election, in the case of a forbearance
waiver, the waivor is not put to any election of alternative
remedies and can expressly or by its conduct suggest that
the waivee need no longer perform its future obligations
under the contract.27
A forbearance waiver is only binding if it is relied on by the
waivee.28 However, a forbearance waiver is suspensory
in nature in that it is revocable, and only becomes
irrevocable after the waivee alters his position in reliance
on it:29
It has been suggested that reliance is necessary
in such a case because the waiver operates in
effect as an alternative to a variation of the contract;
reliance is therefore necessary to take the place of
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(Emphasis added)
If we apply the distinctions in English law as described
above, it can be seen that s 40 of the Act deals with waiver
of breach, while s 64 provides for waiver of performance.
Since the Supreme Court in APMC held that there was a
breach of a condition that went to the root of the contract,
the type of waiver relevant to the case must be a waiver
of breach in the face of the accrual of a right to terminate.
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Agreed with counsel for the respondent (Syarikat Teknikal Kejuruteraan) that a waiver requires an intention to forego a claim and the judge had accepted
the evidence of Mr Ong (CEO of the respondent) that there was no intention on the part of the company to abandon its claims
The court found no clear and unequivocal representation by the respondent that it was abandoning its claims for damages
All three options fall under the category of waiver of breach
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Conclusion
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<http://gst.customs.gov.my/en/gst/Pages/gst_wy.aspx>
Section 17 of the GST Act, read with item 2 of the Goods and Services Tax (Zero-Rated Supply) Order 2014 (PU(A) 272/2014)
For example, in The Winnie Rig (1998) 2 Lloyds Rep 675, a motor yacht was held to be a ship
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Item 6 of the Singapore Goods and Services Tax (Amendment) Act 2010
Goods and Services Tax (Rate of Tax) Order 2014 (PU(A) 184/2014)
Royal Malaysian Customs Department, Goods and Services Tax (Guide on Shipping Industry), 24 March 2014
First Schedule of Goods and Services Tax (Zero-Rated Supply) Order 2014 (PU(A) 272/2014)
For example, pilotage, towage, berthing, wharfage and so on
Supra, n 7
Paragraph 3 of the Second Schedule of the Goods and Services Tax (Zero-Rated Supply) Order 2014 (PU(A) 272/2014)
Section 18(2) of the GST Act 2014, read with item 2 of Second Schedule of the Federal Government Gazette Goods and Services Tax (Exempt Supply)
Order 2014 (PU(A) 271/2014). See also Royal Malaysian Customs Department, Goods and Services Tax (Guide on Commercial Banking), 19 November
2013
Ibid, item 7 of the Second Schedule of the Exempt Supply Order 2014
Ibid, item 12 of the Second Schedule of the Exempt Supply Order 2014
Ibid, item 14(a) of the Second Schedule of the Exempt Supply Order 2014
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Goldrein, Ian S, Ship Sale and Purchase (2nd Ed, Lloyds of London Press Ltd (1993) at 211
Supra, n 2
Sections 9 and 13 of the GST Act
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Suggested solutions
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We know that the essence of GST is based on a valueadded concept. From our understanding, the solution to
s 65(5) of the GST Act is relatively simple. The person
selling the vessel must ensure that the conditions of sale,
whether in the form of a contract for sale or proclamation
of sale, provide for the payment of GST in addition to the
contract price.
A sample GST term would read as follows:
Goods and Services Tax (GST)
(a) Unless specified to the contrary in the Contract
Details, all prices are exclusive of Goods and
Services Tax (GST) on the Services and
Products and other supplies made under this
Contract to the extent that they are taxable
supplies within the meaning of the Goods and
Services Tax Act 2014 (the GST Act).
(b) In this clause, a word or expression defined in the
GST Act has the meaning given to it in that Act.
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Conclusion
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Margaret Ang Guat Hee and Laksme Khorana, An Assessment of the Introduction of Goods and Services Tax (GST) in Malaysia and its Implications on
the Merchant Shipping Sector and Maritime Supply Chain. See <http://www.mima.gov.my/mima/wp-content/uploads/gst%20-%20final%20report%20
20jul10.pdf>
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While the average business may not have a billion-dollargenerating secret, it may not realise the value in their
existing information. A business may have more trade
secrets than meets the eye (and these are not limited to
industrial or manufacturing processes).2
Protection
(a) copyright;
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Copyright
Copyright is the exclusive right granted for the exploitation
of an artistic works, literary works, musical works, films,
sound recordings and broadcasts. A customer database,
information on prices, contracts and individual preferences
of customers may qualify for copyright protection as
literary works.
However, copyright protection of trade secrets is
inadequate and often not feasible because:
Patent
A patent is an exclusive right granted to exploit an invention.
While a patent grants absolute monopoly, protection of
trade secrets by means of a patent may be inadequate
(and, to an extent, counter-productive) because filing for
a patent requires publication of the invention.
a) By filing for a grant of patent:
i) even after publication, there is no guarantee
that the patent would even be granted;
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Duty of confidence
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Conclusion
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Coco, supra n 15; Electro Cad Australia Pty Ltd & Ors v Mejati RCS Sdn Bhd & Ors [1998] 3 AMR 2555
Haji Wan Habib Syed Mahmud v Datuk Patinggi Haji Abdul Taib Mahmud & Anor [1986] 2 MLJ 198 (SC); Malayan Banking Bhd v Foo See Moi [1981]
2 MLJ 17; Tan Swee Lan v Engku Nik Binti Engku Muda & Ors [1973] 2 MLJ 187 (FC)
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Se n i o r A s s o c i a t e Pro f iles
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LH-AG
: Dato K C Vohrah
: Dato Thomas M L Lee
Datuk D P Naban
Knowledge Partner : Koh Kek Hoe
kcv@lh-ag.com
tl@lh-ag.com
dpn@lh-ag.com
lr@lh-ag.com
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