INSAF | The Journal of the Malaysian Bar

SERVING AN IMPRISONMENT SENTENCE OUTSIDE PRISON THROUGH A PAROLE ORDER

2026-04-18T16:54:47+00:00

Lately there has been much discussion on the issue of a ‘house arrest’ and whether the law in Malaysia permits for a ‘house arrest as there is no specific reference to the term ‘house arrest’ in any of the laws in Malaysia. It would appear that there may be some difficulty in recognising the correlation between a declaration made by the Minister in charge with the responsibility of prisons of a ‘house’ as a prison under section 3 of the Prison Act 1995, and an order to serve out remainder of imprisonment sentence outside of prison made by the Parole Board under section 46C(1) of the same Act. It is important to appreciate the difference between the laws pertaining to serving imprisonment sentence inside prison and the laws pertaining to serving imprisonment sentence outside prison. This article discusses the nature of parole, which cannot be equated with a ‘house arrest’, noting the crucial point that serving imprisonment at any place gazetted as a prison is not parole which contemplates serving imprisonment sentence outside prison.

OVERVIEW OF THE APOLOGY ORDINANCE IN HONG KONG

2026-04-18T16:54:47+00:00

The Apology Ordinance (Cap. 631) was enacted in Hong Kong in 2017 with the aim of promoting apology as a means of preventing conflict escalation and fostering amicable settlements. The Ordinance defines an apology as an expression of regret, sympathy, or benevolence, which also includes statements of fact. Apologies do not constitute admissions of fault or liability unless explicitly intended to be used as evidence. This legislation sets a precedent for other Asian jurisdictions and enhances Hong Kong's position in international dispute resolution

UPHOLDING JUSTICE WITHOUT FEAR OR FAVOUR: A CALL FOR MUTUAL PROFESSIONALISM BETWEEN BENCH AND BAR

2026-04-18T16:54:48+00:00

This article critically examines the evolving dynamics of professionalism between the Malaysian Bar and Judiciary in light of contemporary courtroom practices. Quoting from an eBook by Andrew Harding and Amanda Whiting – “… Malaysian lawyers have developed and sustained a capacity to support and defend the core legal values of the rule of law, the independence of judiciary and the integrity of the constitution and of constitutional government, AND to speak and act, sometimes vigorously, in defence of civil and political rights.”[1] This article is written based on a review of the statutory provisions, judicial commentary and personal experience of lawyers within the courtrooms. It is hoped that the discussion here will highlight how institutional relationships between the Malaysian Bar and the Judiciary can either strengthen or weaken the integrity of legal advocacy. The principle of "upholding justice without fear or favour" is explored not merely as a statutory formulation but as a continuing and operative expectation by lawyers in their capacity as independent officers of justice. Amidst increasing procedural rigidity, evolving judicial trends and growing burdens faced by legal practitioners, this article attempts to argue for a recalibration of courtroom decorum that preserves space for respectful dissent and principled advocacy. It is further contended that judicial perspectives must evolve and shift to meet the realities of citizens’ views and those faced by legal practitioners; and this can only be meaningful where there is institutional empathy. In advancing this discussion, this article seeks to encourage continued dialogue on legal ethics, judicial accountability and the resilience of Malaysia’s legal system.

RECENT DEVELOPMENTS OF COMPETITION LAW IN MALAYSIA: LEGAL CHALLENGES AND ANALYSIS OF DECISIONS

2026-04-18T16:54:48+00:00

Competition law is implemented in Malaysia through the Competition Act 2010 (CA 2010) and Competition Commission Act 2010 (CCA 2010). The CA 2010 came into force in 2012, and in 2011, a dedicated commission known as the Malaysian Competition Commission (MyCC) was established under the CCA 2010 to enforce competition provisions. The CA 2010 was largely modelled after the Treaty on the Functioning of the European Union (TFEU). Throughout the 13 years of enforcement, the Commission issued 14 final infringement decisions against enterprises involved in hardcore cartels, particularly price-fixing agreements, while only 2 final infringement decisions were issued against abuse of dominant position. Recently, the Court of Appeal (confirmed by the Federal Court of Malaysia) quashed the Commission’s decision against Malaysia Airlines and AirAsia (the MAS/AirAsia case) for a market-sharing agreement after nearly a decade of legal battle. The Commission has also lost two important cases, namely the General Insurance Association of Malaysia (PIAM) and its 22 members (at the appeal level, Competition Appeal Tribunal (CAT)), as well as a judicial review application to review the Commission’s proposed decision against MyTeksi/Grab. This article highlights the latest developments in Malaysian competition law and explores the legal and institutional challenges in its enforcement. Adopting a doctrinal legal research approach, the paper relies on both primary and secondary sources, particularly recent decisions issued by Malaysian competition authorities. Findings indicate that the influence of foreign competition rules, particularly those from the EU treaty, presents numerous challenges amidst judicial testing of local competition law enforcement. It suggests that the Malaysian competition authority needs to strengthen its internal guidelines and enforcement procedures, as well as increase capacity building efforts to address these legal and institutional challenges effectively. This study is expected to contribute to the existing body of knowledge on competition law.

AN OVERVIEW OF THE DEVELOPMENT OF INTELLECTUAL PROPERTY LAW IN MALAYSIA: SOME COMPARISONS WITH VIETNAM

2026-04-18T16:54:48+00:00

Intellectual property (IP) laws have consistently demonstrated a dynamic capacity to evolve in response to technological advancements and global trends. Such adaptability is essential in maintaining the relevance of legal frameworks and achieving their underlying objectives. This article seeks to examine the development of IP laws in Malaysia through a comparative analysis with Vietnam, aiming to explore the broader trajectory of regional legal evolution. As signatories to key international agreements, particularly the TRIPS Agreement, both countries have made significant strides in aligning their domestic IP regimes with global standards. Nevertheless, notable differences persist in legislative structures, enforcement mechanisms, institutional capacity, and policy orientations. The article essentially focuses on Malaysia’s IP law development, including major legislative reforms such as the Patents (Amendment) Act 2022, the Copyright (Amendment) Act 2022, and the Trademarks Act 2019, all of which reflect the country’s commitment to modernising its IP landscape. Similarly, Vietnam’s rapid progress, particularly following its accession to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the EU-Vietnam Free Trade Agreement (EVFTA), has culminated in substantial amendments to its Law on Intellectual Property in 2022, enhancing standards of protection, enforcement, and compliance. Key themes addressed in this paper include some of the latest developments of IP legal framework in both Malaysia and Vietnam, and the responsiveness of both legal systems to emerging challenges such as artificial intelligence (AI). The article also attempts to highlight some ongoing challenges such as the low number of patents filings, piracy, counterfeit goods, and inefficient enforcement of IP laws. By identifying the respective strengths and weaknesses of each legal system, the aim is to contribute meaningfully to the discourse on IP laws and related issues in both countries, with a view toward fostering innovation and supporting sustainable economic growth through robust and adaptive legal frameworks.

A CRITICAL ANALYSIS OF THE PARIS AGREEMENT AND ITS APPLICATION IN THE UNITED KINGDOM, THE UNITED STATES OF AMERICA AND MALAYSIA

2026-04-21T09:51:20+00:00

Climate change has become an increasingly serious global concern, as rising global temperatures are likely to affect the entire world. In order to combat it, the United Nations has adopted several international instruments including the United Nations Framework Convention on Climate Change, the Kyoto Protocol, the Doha Amendment and the Paris Agreement. This paper pursues three objectives: (i) to analyse the Paris Agreement and its principles to assess their efficacy and sufficiency; ii) to examine the domestic application of the Paris Agreement in Malaysia, the United Kingdom and the United States; and iii) to determinate whether the Paris Agreement itself or its domestic implication, requires further recommendations to curb climate change. Under the Paris Agreement, States voluntarily participate by setting their own nationally determined contributions and committing to implement them. The overarching objective is to maintain the increase in the global average temperature to well below 2°C above pre-industrial levels, while pursuing efforts to limit the increase to 1.5°C above pre-industrial levels. As the Paris Agreement approaching its tenth anniversary, it is both timely and necessary to review its effectiveness and to examine its implementation at the national level. Such an assessment can help determine whether states parties are genuinely adhering to their respective commitments. To this end, the domestic application of the Paris Agreement in Malaysia, the United Kingdom and the United States will be analysed in order to evaluate whether the Paris Agreement is both effective and sufficient at the domestic level.

AN EPITAPH FOR AN ERROR: RECLAIMING THE STATUTE FROM THE IMMEDIATE AND DEFERRED INDEFEASIBILITY DEBATE

2026-04-18T16:54:48+00:00

This article argues that the question whether Section 340 of the National Land Code provides immediate or deferred indefeasibility is misconceived. The statute answers both: subsection (1) grants immediate indefeasibility, subsection (2) identifies exceptions, and subsection (3) restores indefeasibility to bona fide purchasers for value. The immediate/deferred labels have obscured this structure and generated compounding errors. Adorna Properties’ decision misinterpreted the proviso by extending it to subsection (2), emptying that provision of effect. Tan Ying Hong’s decision corrected the interpretation yet it was also misinterpreted. Kamarulzaman’s decision invented a requirement that predecessors in the chain must also be bona fide purchasers. The main provisions of Section 340 apply to any registered proprietor; the concept of “purchaser” enters only at the proviso to subsection (3). Setiakon’s decision compounded the error in two ways. First, it imported the section 5 definition of “purchaser” into subsection (3) of Section 340 to disqualify an intermediate transferee who was not a bona fide purchaser. Second, it assessed the final purchaser’s good faith not by reference to the vitiating factor under subsection (2), but by reference to the characteristics of that intermediate transferee. The solution is to retire the labels and return to the statute. This article proposes a four-step framework that tracks the statutory sequence: (1) confirm indefeasibility under Section 340(1); (2) identify any vitiating circumstance under subsection (2); (3) determine liability to be set aside under subsection (3); and (4) assess whether the proviso protects the proprietor as a bona fide purchaser for value.

List of Reviewers for Volume 42 (1) 2025

2026-04-19T05:04:16+00:00