UKM dan Company Law

Berikut adalah petikan laporan dari laman web News Straits Times (Baca di sini)

 

KUALA LUMPUR: Datuk Gopal Sri Ram’s statement that University Kebangsaan Malaysia does not offer Company Law as a subject is incorrect.

 

The university’s public and corporate communications head Padlon Yahya in a statement yesterday said the Court of Appeal’s judge’s statement was erroneous.

 

“At UKM, Company Law is a compulsory subject offered to all third year law students,” he said. “This has been implemented since the commencement of the programme in 1996.”

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Adoi… apa nak jadi dengan Malaysia. Macam mana nak pulihkan sistem kehakiman kalau hakim kanan sendiri pun suka buat kenyataan-kenyataan kontroversi dan tidak benar. Judicial reform konon.

 

Sekurang-kurangnya buat la kajian sikit. Bukannya susah pun. Google je.

 

Atau hakim tua ini tak reti nak guna Google? Alah.. kalau hendak seribu daya, boleh je suruh budak-budak SAR buat research dulu sebelum keluar statement. Aku cadangkan buat kursus intro to Googling for hakim-hakim tua, buat la kat luar negara at least boleh kasi dia orang jalan-jalan, tapi jangan jalan-jalan beramas mesra dengan lawyer pulak nanti kene siasat.

 

Hmm.. nampaknya bukan sahaja peguam yang kualitinya below par, bak kata hakim kanan itu ‘grotesque’…  hakim pun sama je. Maklum la kita semua kan manusia. Tiada yang sempurna. Tapi ramai yang ‘koya’ sempurna. Bengong…

 

 

Subsidi dan Minyak

Lagi cerita pasal minyak dan subsidi. Mulai jumaat ini, kenderaan warga asing tidak dibenarkan membeli minyak petrol di stesen-stesen minyak yang berada dalam linkungan 30 atau 50 kilometer dari sempadan di utara dan selatan semenanjung. (Baca laporan Utusan Malaysia disini)

 

Aku rasa cadangan ini cukup bagus, sebab tak sepatutnya kerajaan menanggung subsidi minyak bukan warganegara terutamanya golongan-golongan kiasu dan ‘opportunist’ dari Singapura. Walaubagaimanapun aku rasa agak sukar nak jalankan penguatkuasaan undang-undang baru ni. Bak kata mak aku, “Sampai bila kita nak suruh pegawai kerajaan jaga stesen minyak? Takde kerja lain ke?” “Bukan senang nak kawal bisnes orang”. Seperti biasa aku rasa apa yang mak aku kata tu logik dan betul.

 

Subsidi minyak di Malaysia perlu dikaji semula. Sudah begitu lama subsidi ini yang sepatutnya menolong rakyat yang miskin dieksploitasikan oleh golongan yang kaya. Kalu nak kira orang miskin, setakat nak isi minyak motosikal, berapa banyak sangat la petrol yang mereka guna? Orang kaya yang memandu kereta mewah dan kenderaan yang memang mentekedarah minyak sudah semestinya menikmati lebih banyak subsidi. Adakah ini adil?

 

Jadi, kita tanya diri kita… nak tolong orang miskin ke orang kaya?

 

Sepertimana yang aku dah tulis di atas, subsidi minyak perlu dikaji semula. Dalam keadaan ekonomi dunia dan negara yang sukar ini biarlah orang yang rendah pendapatannya menikmati kebajikan yang sepatutnya. Nasib mereka perlu dibela kerana mereka, sebagai golongan majoriti, adalah penentu siapa yang berkuasa di negara ini.

 

p/s: Semalam dalam buletin utama ada seorang MP dari Sabah bagi idea supaya subsidi minyak ditukarkan dengan pemberian elaun yang mana keutamaan diberikan kepada mereka yang berpendapatan rendah. Aku rasa idea ini agak bagus.

 

Pulau Batu Putih

Congratulations to the AG Chambers for helping Malaysia win sovereignty over the Middle Rocks (bukan Middle Earth) albeit the fact that the rocks can only be visible during low tide and a heartfelt condolence to Malaysia for the loss of Pulau Batu Putih to Singapore.

 

At least we won something right? Boleh la… Malaysia kan boleh!

 

Some critics claim that we lost Pulau Batu Putih due to our weak legal argument on this issue. It is said that Malaysia relied on historical argument unlike Singapore who relied on concrete legal documents. (Read Anwar Ibrahim’s comment here)

 

Let me illustrate:

 

Argument #1: “Yang Arif, tanah tersebut adalah hak saya oleh kerana datuk saya kata tanah itu moyang saya yang punya”

 

Argument #2: “Yang Arif, Tanah tersebut adalah hak saya dan tuntutan saya ini boleh dibuktikan dengan dokumen-dokumen yang berikut…”

 

So which one of the above is the better argument to be brought before a court of law? You decide.

 

By the way, my friend Ikmal wrote a good legal comment on this issue. (Read it here)

 

           Location of Pulau Batu Putih a.k.a Pedra Branca via Google Earth

Visit this link to see more pictures of what we had won.

 

Enhancing the ISA

Datuk Zaid Ibrahim, Minister in the Prime Minister’s Department in charge of law, said the Government would review the Act to “enhance and update provisions under the ISA” and review certain aspects of it but declined to provide details.

The above is an excerpt from the Star (Read the full report here)

 

What does he means by enhancing the ISA? To give the Act greater power or to dilute it?

 

Among Malaysians, some call for the Act to be abolished because of its draconian and inhumane nature due to the fact that ISA detainees are at all not given the right to a trial thus be committed into automatic detention, which are in my opinion clearly breach the idea of fundamental justice in particular the right to be heard or in Latin, Audi Alteram Partem.

 

Though draconian as it seems, some quarter of the Malaysian public stresses the need of such preventive law in order to safeguard the interests of the people. I think that there is a bitter truth in that view. In the age where danger and chaos do not come in the form of invading army but in the form of elusive enemies I believe that there is a need for such law to exist.

 

Though my stand is in favour of continued existence of the law, it is my sincere hope that ISA is to be reviewed and then amended so that it powers be restricted and will not be used arbitrarily. Clear distinction must be made between who are the real enemies of the state from those who are merely objecting against the state. Let it be the law that protects the people, regardless or their race, religion nor their political party, and not the one that oppresses them.

 

 

 

Oil Woes

<a The price of oil hit a record high above $135 (USD) a barrel on Thursday – more than twice what it cost a year ago.

 

The price of oil keeps on rising on the global market due to the most basic principle of economics i.e. supply and demand. That principle being a salient part of capitalism that is now being aggressively applied by the oil traders worldwide who are laughing and cashing on the situation will soon become the bane of the citizens of the world.

 

High oil prices will of course give effect to the prices of all other tradable items. Food prices and the costs of amenities will soar causing serious burden to the majority of the public.

 

Couple with the global food crisis the scenario seems to get worst. Nothing is more dangerous than masses of people who are hungry and feeling exploited. Histories of revolutions all over the world, such as the French revolution and Bolshevik’s, bear testament to that fact.

 

On the Malaysian perspective, the Malaysian government for the time being will bear all these troubles by spending billions of ringgit for subsidies, keeping public dissention and outcry at bay. But what will happen when the government is no more capable to absorb the high prices of commodities?

 

Something needs to be done quickly. A solid national plan needs to be hatched so that these issues can be addressed. So enough bickering amongst yourselves oo Malaysian politicians (of self-claim leaders). The Rakyat are more interested in living in a prospective environment rather than witnessing the never-ending Malaysian political drama. It’s about time for us all to work together for the good of the nation and not for personal interests.

 

CLP, CBC and CBE

Rakan blogger yang juga sepatutnya rakan SeTPM saya, Ikmal telah menulis komen dalam blog beliau berkenaan pemansuhan peperiksaan CLP (Certificate of Legal Practice) dan pengenalan system kursus CBC (Common Bar Course) dan peperiksaan CBE (Common Bar Examination). Saya dapati terlalu banyak komen yang agak sinis, tajam dan bebal ditujukan kepada pendapat sahabat saya. Bebal kerana terdapat ramai rakyat Malaysia yang kononnya pengamal and pelajar undang-undang masih dibelenggu dengan sikap perkauman yang menebal.

 

Here are my comments on this matter albeit a bit late.

 

Recently the Malaysian de facto law minister made a statement with regards the scrapping of the CLP and the introduction of the CBC and CBE. It is stated that the introduction of this new system will help usher a golden age of Malaysian legal services as it will help enhance the quality of lawyer i.e. law practitioners all over Malaysia thus realising the judicial reform.

 

Unlike the CLP, this new system will be implemented to all law graduates regardless of from where their qualifications are obtained. For now it can be said that local graduates, not local graduates with foreign degree, enjoys exemption from the CLP. A local graduate can automatically starts his or her pupillage (reading in chambers) without having to first pass the CLP examination.

 

In the future, if the CBC and CBE be successfully implemented, the local law graduates can kiss their ‘special privilege’ goodbye thanks to de facto Law Minister who himself came from the local law faculty as claimed by certain quarters of the local academia.

 

If the government thinks that CBC and CBE are to be one of the cure for the illness of our legal system I have to submit that they have erred in their thinking. The rot that inhibits the Malaysian legal system is not caused by the lack of academic qualification amongst the members of that system. All the stories of the legal rot that includes backlog of cases, unprofessional act of the lawyers etc occurs in our system due to reasons which are too many or too broad to be discussed but the root of the rot can be traced back to the human trait of greed which causes corruption and abandonment of ethics and morality in their personal pursuit of happiness.

 

In order to restore the splendour of the legal system the rot must be curbed if not stopped. So the question that arises now is how to fight this elusive creature called corruption. By taking harsh action against the corrupted? By inculcating good values in the hearts of officers of the system? By conducting frequent exorcisms of officers of the legal system to get rid the corrupting demons in their hearts? Or by making a standard Bar exam as a prerequisite to enable a person to practice law in this country?

 

Referring to the above suggestions, the first is a total bull-poop due to the fact that in Malaysia it seems that there is no ‘real’ action be taken against the corrupts. Even with glaring evidence both factual and circumstantial, for example a multi million Ringgit palatial home build in a low cost area, our esteemed investigators and prosecutors seem to usually fail to nail the case. The second suggestion is another bull-poop, there is no way the officers can be inculcated with good value due to the fact that the shoot has already become a bamboo (rebung sudah menjadi buluh). The third suggestion may work due to the increasing beliefs in the supernatural nowadays (pun intended).

 

The fourth suggestion is the worst bull of all. An academically inclined course and examination such as the CBC and CBE can never be the instrument to enhance the legal profession. They are only paper qualification. And such thing cannot ensure inculcation of professionalism. You can never know a person by only looking at his papers. However outstanding his or her result would be it is wrong to equate a person’s capability in passing exams with his inherent character. Answering exams requires a man to be in touch with his mind and his ability to memorize and it never requires a man to search for answers using his heart, moral and empathy. 

 

I wish to say that the introduction of this new system will burden our local law graduates. Different from their overseas brethren, their duration of study is one year longer. I understand through my own experience that this one year is used by the law faculties nationwide to teach and test prospective law graduates in practical syllabuses rather than theoretical which subjects are case specifics to the legal institution of this country such as civil and criminal procedures.

 

In the legal world, sound knowledge of procedures of law is the best armament a lawyer can have in order for him to be competent, efficient and professional in his work. The local graduates have this knowledge which is of course tested by the local universities thus giving them an advantage over their foreign trained counterparts. If this advantage is not to be recognised by the government then I dare say that those who walk the corridors of power have no regard and consideration for the situation of local law graduates, the local law faculties and the local legal academia as a whole.

 

Implementing this new system will never give positive even minute effect to the effort of the government in the judicial reform. I see it as an appeasement action done by the government to appease some quarter of the public which criticise and loathe the CLP system. If this is true then I think that they are now appeased and pleased with the government who is now hungry for support, respect and recognition.

 

Local law graduates need to voice out their concerns with regard to this matter, unless they agree to allow themselves to be burdened with this new system which will costs them their time, effort and money. This proposal must be reconsidered.

 

Tun quits UMNO

Tun Dr Mahathir quits from UMNO today. His comment on this matter posted on his personal blog tells everything about it. Being an UMNO member myself, I agree with the Tun’s statement that UMNO a party that was formed based on Malay aspirations has seem to be diverted from its true purposes.

 

Since merdeka the Malays have enjoyed political leadership in Malaysia compensating their weakness in economy. If that be allowed to pass then I have no idea what fate will befall the Malays in Malaysia especially those who reside in kampungs and rural areas.

 

Efforts must be made to amalgamate the Malays back as one dominant political force in this country be it through UMNO or not.

 

The Tun has all the right either to stay with or quit the party which he had lead for more than 20 years. However his recent action has caused himself to be harshly criticised by many. Some even say that a ‘duri dalam daging’ (thorn in the flesh) is now finally removed. So who is the actual duri dalam daging? A person who is trying all he can to make a change or the one who does nothing except keep on bitching about others?

[Read Tun's respond on this matter]

 

13th May 1969

13^th of May 1969 will forever be the date that will live in infamy for Malaysia. The racial clash that occurred on that day is a grim memorial for all Malaysians regardless of race. The lost of lives and property is nothing compared with the everlasting suspicion against each other that seems to be permanently etched in our hearts.

 

I personally believe that the series of events concerning the racial riots that occurred has not been told exhaustively to the public. Hardly can I find a publication that can gives a satisfactory descriptive explanation of that tragedy. For all these years the media still seems to treat that bloody event as a taboo, as something that need not be told.

 

Nearly 40 years have passed since 13^th of May 1969 and along that time Malaysians have gone so much far in their development in particular their thinking. I dare to say that Malaysians nowadays are mostly well informed regardless of their background thus be able to make brilliant justification in any matters. And because of that I believe that we are ready to know the full story of the riots not to rekindle old hatred but to understand and to learn from it.

 

Nothing is more vivid in storytelling than a movie. Why not the government, NGO and capable individuals band together to produce a movie on this matter? We had enough with stupid local movies which genre is so typical and stereotype. Perhaps it is about time for us to emulate the west with respect of their productions of history based movies. One of the best would be Schindler’s List, where it able to portray the holocaust and the decadence of humanity at that time in a way that it touches the hearts of its viewers.

 

So, are there any Malaysian director and producer willing to take up the challenge?

 

P/s: Al-fatihah to those who lost their lives during the May 13^th tragedy. May God forgive us for the bad things we done to each other.

 

Dear respected readers, feel free to share stories of the 13th May tragedy by writing comment(s) on this post. However stories and/or comments which have tendency to stir racial sensitivity(ies) shall be censored. Thanks.

 

 

Of Mistakes and Apologies

Few weeks ago, a man named Karpal got so infuriated with an alleged death threat made against him through a website. One boy posted such a threat-like comment on a website stating that since this Karpal guy had slandered Islam by making sensational remarks against the religion adhered by majority of Malaysians, he has the right to be killed. Karpal lodged a police report soon after.

 

Few days after the report, afraid of being reprimanded the boy publicly seek apology from Karpal and withdrew his posted comment. He hope that his ‘sincere’ act in seeking apology will reason Karpal to forgive him and withdraw the report made.

 

So far the report has not been withdrawn due to the fact, as stated by Karpal, that it is illegal to withdraw a police report lodged. This is absolutely true because once a first information report (FIR) is lodged the progress of the case or matter will be under the absolute authority and discretion of the attorney general.

 

Few weeks later, it seems that tables have turned for this guy named Karpal. The Utusan Malaysia today reported that a police report is made against Karpal, by several MPs and an NGO, for his direct criticisms hurled against the Sultan of Perak. (To read the report click here)

 

It seems that lodging police reports are now the trend for Malaysians regardless their political stance. From this trend I see that Malaysians, who are recently officially divided by two according to the division of their political interests i.e. the BN and the PR, are more confrontational with each other now than ever before. From the way things go it looks like the ability to reason and compromise have withered drastically as each side try to politically assassinate the other by any means possible. Is this a good sign for the Malaysian democracy and the Rakyat? I think not.

 

There are a lot of differences between a person who wishes harm than a person who does not.

 

Personally I believe that the young boy who hardly knows about politics who posted hate comments on the net has no actual intention to rouse the public to kill Karpal. Nobody will listen to him a ‘nobody’ himself, even the famous death penalty on Salman Rushdie made by a Muslim cleric fell on deaf ears. So is there a reason to be afraid? I can bet that if that boy is left with Karpal in a room and be given a weapon he will not act to foolishly end the life of another. The comment posted was merely made in an effort to defend his beliefs and of course to seek personal attention, a typical act of boys his age.

 

On the other hand Karpal made direct criticisms against the Sultan of Perak with regards to the Jamry case. In this matter I also believe that no ‘derhaka’ is intended. Karpal being a senior lawyer with extensive knowledge of the law is just merely putting forward his personal opinion on that matter, though perhaps a little bit harsh considering the subject matter of the criticism, which is based on sound application of the law. His comments were made merely in an effort to show off his knowledge and presence, a typical act of a lawyer cum politician his age.

 

But one matter does give stark contrast to the two person’s situations as stated above. The boy seek apology. Karpal refuse to do so. Perhaps Karpal can learn something from this boy whom he had lodged a police report against and that lesson would be to acknowledge your mistake and try to remedy it. Promote peace not confrontation.

 

All that I wish for is that Malaysians regardless who they are can instil the feeling of tolerance and compromise deep in their hearts. We may have different political allegiances but nevertheless we are also brothers and neighbours. Let us all respect each other and together live in harmony.

Partnership Law: Extent of Liabilities of an Incoming Partner

Incoming Partner: A person who is admitted as a partner into an existing firm or partnership.

 

The general rule for the extent of a partner’s liability in the context of Partnership Law is provided in Halsbury’s Laws of England, Third Edition that every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he is a partner.

 

In Malaysia the governing law that addresses partnership matters is provided in the Partnership Act 1961 (Act 135). With regards to the extent of liabilities to be borne by an incoming partner it is best to refer to the judgment made by Suriyadi J (as he then was) in Leong Sing (sue as a firm) v. Perusahaan Kuari (Melaka Pindah) Sdn Bhd (formerly known as Malacca Lian Hwa Sdn Bhd [1997] 5 MLJ 657. In this case the court referred to sections 11 and section 19(1) of the Partnership Act 1961.

 

The provisions are as follows:-

11. Liability of partners.

“Every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he is a partner; and after his death his estate is also severally liable in a due course of administration for such debts and obligations, so far as they remain unsatisfied but subject to the prior payment of his separate debts.”

 

19. Liability of incoming and outgoing partners.

1.       A person who is admitted as a partner into an existing firm does not thereby become liable to the creditors of the firm for anything done before he became a partner.

2.       A partner who retires from a firm does not thereby cease to be liable for partnership debts or obligations incurred before his retirement.

3.       A retiring partner may be discharged from any existing liabilities by an agreement to that effect between himself and the members of the firm as newly constituted and the creditors and this agreement may be either express or inferred as a fact from the course of dealing between the creditors and the firm as newly constituted.

 

From the above provisions it can be argued that, in particular section 19(1), the present partners cannot be held liable for the alleged wrongdoing of the previous partners; and because the present partners cannot be held liable, therefore, the firm also cannot be liable because the liability of the partnership and the liability of the partners are the same. A witty argument this is.

 

As per the case above the court ruled that the liability of the firm or partnership is distinct and different from the liability of the firm’s partners. It is true that a partnership, being not a human being but merely an artificial legal entity, on its own can do nothing. Thus on its own it can do no wrong. The partnership acts through its human agency, its partners. Every act or omissions of the partners directly pertaining to the partnership is in law deemed to be an act or an omission of the partnership.

 

In relation to partnerships, the law recognizes two types of liability:-

1.       the liability of the partners; and

2.       the liability of the partnership.

 

Sections 11 and 19 seem to cover liabilities that are contractual in nature and from the discussion above we can safely say that an incoming partner will not bear any contractual liability incurred before his admission as partner.

 

In the event that the firm or partnership committed a wrong, sections 11 and 19 are irrelevant due to fact that they are only concerned with the liability of partners and they are also confined within the spheres of debts and obligations i.e. contractual liabilities. In this regard the relevant law to be applied to the situation is section 12 of the Partnership Act, as it discusses about the liability of the firm or partnership itself.

 

Section 12 states that:-

12. Liability of firm for wrongs.

“Where by any wrongly act or omission of any partner acting in the ordinary course of the business of the firm or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable therefore to the same extent as the partner so acting or omitting to act.”

 

The above provision seems to cover tortious liabilities or wrongs exclusively. It is different from its counterparts i.e. sections 11 and 19 which covers contractual issues.

 

It is, however, true that before any liability can be attributed to a partnership, a wrongful act or wrongful omission (that relates directly to the partnership) must first be committed by a partner. Yet at the same time it is also pertinent to note that there is nothing in section 12 or, indeed, anywhere else in the Partnership Act that states that the liability of the firm incurred by reason of a wrongdoing of a partner ceases once the errant partner ceases to be a partner of the firm.

 

Therefore it can be said that by virtue of section 12 above, when a wrong that is tortious in nature is committed by the firm or partners the liability that arise from  that tort will bind the firm exclusively. Take note that a partnership has no such veil of incorporation that allows it to be treated as a separate legal entity from its owners (partners). Thus when a firm is exclusively held liable for a tort, damages will be paid to the victim out of the firm’s pocket which is the same pockets of its partners. When this occurs what about the position of an incoming partner? Will he be bound to share portion of that liability? Maybe section 14 of the Act may help clarify this matter.

 

Section 14 states that:-

14. Liability for wrongs joint and several

“Every partner is liable jointly with his co-partners and also severally for everything for which the firm while he is a partner therein becomes liable under section 12 or 13.”

 

The provision above consolidates the fact in the event that the firm committed a tortious wrong an incoming partner will not be liable for the wrongs committed by the firm before he be admitted as a partner.

 

In section 14 the provision state that “…while he is a partner therein becomes liable…” In my view this phrase has the potential to be contested. For example, on Monday the firm commits a wrong, then on Wednesday Abu joins the firm and later on Friday the court held that that firm is liable for the wrong done on Monday. The issue now is when that liability arises? On the date of judgment or on the day the wrong is done? If liability of the firm arise on the date of judgment then of course Abu, an incoming partner will also be jointly and severally liable with the other partners even though he is ‘innocent’.

 

All in all, in accordance to the general rule and the provisions mentioned above, it seems to be settled law that an incoming partner will not be liable for any obligation or debt incurred by the firm or its existing partners that are incurred before he joins or be admitted as partner of the firm or partnership. However with regards to tortious liability or wrong the situation is somewhat debatable.