INSAF - The Journal of the Malaysian Bar <p>First issued in 1967, INSAF was once the esteemed platform for Members of the Bar to voice their opinions on legal matters of the country.&nbsp;<br><br>Now revived as a peer-reviewed journal in collaboration with the International Islamic University of Malaysia (“IIUM”). INSAF is a peer-reviewed journal, published twice a year i.e. June and December<br><br>INSAF is dedicated to continuing the mission of contributing original and high-quality research on the law and its current developments today.</p> Malaysian Bar en-US INSAF - The Journal of the Malaysian Bar 0126-8538 A NEW BEGINNING Surindar Singh Copyright (c) 2022 INSAF The Journal of the Malaysian Bar 2022-02-18 2022-02-18 39 1 ii iii SPECIAL MESSAGE FROM PRESIDENT OF THE MALAYSIAN BAR A G KALIDAS Copyright (c) 2022 INSAF The Journal of the Malaysian Bar 2022-02-18 2022-02-18 39 1 iv v REMARKS FROM THE DEAN, AHMAD IBRAHIM KULLIYYAH OF LAWS, IIUM Farid Sufian Shuaib Copyright (c) 2022 INSAF The Journal of the Malaysian Bar 2022-02-18 2022-02-18 39 1 vi vii ARTIFICIAL INTELLIGENCE IN THE MALAYSIAN LEGAL SYSTEM: ISSUES, CHALLENGES AND WAY FORWARD <p>The coming of the Industrial Revolution 4.0 has outraged those who have not braced themselves for it. The legal fraternity is one of the industries affected,&nbsp;&nbsp; stunned by the&nbsp;&nbsp; imminent digital technologies that learn on their own such as artificial intelligence (AI). Unlike any other previous technology, AI can make judgments freely and unexpectedly, causing concern on accountability for the harm inflicted by AI decision-making. The first part of this paper defines AI’s functions and opportunities presented.&nbsp; Given the promising features of AI, the Malaysian judiciary has explored the used of AI in sentencing, as explained in the second part. Despite such opportunities, notable issues and challenges concerning negligence, vicarious liability, and crime arising from the use of AI technology cannot be overlooked. The paper concludes that the role of mankind is highly central in the use of AI despite the promising, yet risky potentials it could uncover.<a href="#_ftnref1" name="_ftn1"></a></p> Mahyuddin Daud Copyright (c) 2022 INSAF The Journal of the Malaysian Bar 2022-02-18 2022-02-18 39 1 1 24 REMOVAL OF JUDGES IN THE COMMONWEALTH – AN EXPLAINER <p>Removal of judges from office is a serious form of judicial accountability. As such, international instruments, and declarations on the independence of the judiciary have expressed three principles on the substantive grounds for removal of judges. Firstly, the grounds of removal must be apparent, secondly, judges should only be removed on grounds of incapacity or misconduct and thirdly there must be grave misconduct warranting the removal of a judge. Around the world, there are a few types of removal mechanisms of judges in the higher courts. The most common type of removal mechanism is by ad hoc tribunal or parliament. Most commonwealth countries, including Malaysia, have adopted the <em>ad hoc</em> tribunal system. This article provides an overview of the different types of removal mechanisms adopted by commonwealth countries in removing judges from the higher courts, in particular the United Kingdom, South Africa and Malaysia.</p> Jenita Kanapathy Nadhratul Wardah Salman Copyright (c) 2022 INSAF The Journal of the Malaysian Bar 2022-02-18 2022-02-18 39 1 25 41 PROTECTING REFUGEES, PRESERVING STATE SOVEREIGNTY AND MANDATING EQUITABLE INTERNATIONAL BURDEN-SHARING: FINDING THE BALANCE FOR MALAYSIA <p>The main international treaty pertaining to refugees and asylum-seekers is the Convention Relating to the Status of Refugees 1951 and its 1967 Protocol. Many countries within the region of Southeast Asia, including Malaysia, had not ratified or acceded to the treaty. There are many reasons to it but one of the main reasons relates to the sovereignty of the nation which include cross-border movements and for fear of its negative impact to the security of the nation. The non-recognition of refugees and asylum-seekers together with the absence of the legal framework as required under the Convention cause hardship and compromise the safety of refugees and asylum-seekers. This article investigates the historical aspect of migration within the Malay Archipelago and shows how Malaysia has always welcomed the integration of others into its community. The article then discusses the dilemma faced by a country such as Malaysia and the manner upon which Malaysia seeks to contribute to the aim of the abovementioned treaty by ensuring that the humanitarian needs of individuals who are fleeing their country as refugees and asylum-seekers are fulfilled. This article then highlights some of the current initiatives to overcome the humanitarian challenges pertaining to refugees and asylum-seekers. The article finally discusses the means to assuage the hesitancy of Malaysia in ratifying or acceding to the Convention Relating to the Status of Refugees 1951 and its 1967 Protocol, including mandating equitable international burden sharing.</p> Farid Sufian Shuaib Saiful Izan bin Nordin Copyright (c) 2022 INSAF The Journal of the Malaysian Bar 2022-02-18 2022-02-18 39 1 42 73 RESOLVING JURISDICTIONAL DILEMMA IN RECENT RELIGIOUS DISPUTES BY LEGAL MECHANISMS <p>The duality of the Malaysian legal system has resulted in an ongoing jurisdictional conflict between the Civil Court and Syariah Court throughout the years. A jurisdictional dilemma will usually occur in the case of religious contention on Islamic matters when one of the parties initiates legal action in a Civil Court instead of a Syariah Court, which has jurisdictional power pertaining to Islamic law. Due to issues raised in recent religion-related disputes, the objective of this paper is to study how to resolve jurisdictional friction between the two courts by discussing the development of juristic approaches when clashes of jurisdiction are involved. Specifically, the jurisdictional dilemma will be critically analysed based on recent, selected court cases concerning religious dispute. Thus, the authors have adopted descriptive, analytical and doctrinal legal methods for the purpose of discussing the issue. At the end of this paper, suggestions on practical solutions to avoid further conflict in the future by using legal mechanisms available will also be appraised.</p> Yusfarizal Yussoff Syaza Farzana Shahrul Ridhwan Shakeran Syed Ahmed Khabir Abdul Rahman Copyright (c) 2022 INSAF The Journal of the Malaysian Bar 2022-02-18 2022-02-18 39 1 74 114 OFFENCES BY PERSONS PROFESSING THE RELIGION OF ISLAM AGAINST PRECEPTS OF THAT RELIGION <p>This article analyses laws for Muslims under the Malaysian legal system by outlining its historical and legal developments in British Malaya and Malaysia. It is primarily concerned with the matter of offences by persons professing the religion of Islam against precepts of that religion. It has the dual objective of providing readers with a solid account of the historical context in which these offences were developed, and analyses the approach taken by the Judiciary of today with respect to these offences since their re-enacting after Merdeka. It argues that the Judiciary has failed to preserve the Constitution as envisaged in 1957. Recent decisions of the Federal Court have disregarded the reasoning of the Supreme Court in <em>Mamat Daud</em>, misinterpreted the common noun ‘precepts’ for the proper noun ‘Precepts of Islam’ while favouring the opinions of contemporary experts on religion when interpreting the Constitution. This article finds that Parliament must remedy this continued failure by the Judiciary by engaging with interested persons, and in doing so, preserve the protections of the Constitution of 1957, and allow the subject matter – laws for Muslims in Malaysia – to be subject to 21<sup>st</sup> century democratic deliberation.</p> Aston Paiva Copyright (c) 2022 INSAF The Journal of the Malaysian Bar 2022-02-18 2022-02-18 39 1 115 153 ENTITLEMENT OF NEPHEWS AND NIECES IN PARENTS’ SIBLING’S INTESTATE ESTATE – AN OVERVIEW <p><em>As the heading reads, the question is whether the nephews and nieces are lawful beneficiaries of their uncle’s and aunt’s intestate estate, that is, where the late uncle or aunt has not written a will in respect of the properties they have left behind. There is a dearth of case law in this area, probably because more often than not such matters might have been resolved amicably within the family circle. That is, of course, until the reported decision of the Court of Appeal in the case of Gan Cheng Khuan v. Gan Kah Yang &amp; 2 Ors [2018] 7 AMR 317 not so long ago, which held that nephews and nieces are not entitled to the estate of their late uncle on the grounds that their father had passed away before the intestate uncle. However, in the case of Pulogasingam a/l Veerasingam v. Paralogavathy &amp; 8 Ors [ Rayuan Sivil No. A -02 (NCVC) (W) – 536 -03 /2018] which was heard a few days before the aforesaid case, wherein I appeared for the one of the appellant administrators, on similar facts, the Court of Appeal had held otherwise but unfortunately no reasons were given and neither is the case reported. In the light of the aforesaid, this article intends to explore the state of law of intestate succession involving parents’ sibling’s intestate estate vis-a-vis the nephews and nieces based on the provisions in the Distribution Act 1958 [Act 300 as modified by Act 1004A], the legal position in other jurisdictions and whether there is a need for legislative reform. Henceforth all references to words ‘section’ and ‘the Act’ refers to the Distribution Act 1958 unless stated otherwise.</em></p> S. V. Namasoo Copyright (c) 2022 INSAF The Journal of the Malaysian Bar 2022-02-18 2022-02-18 39 1 154 175 MINORITY OPPRESSION AND REMEDY: A REVIEW OF AUSPICIOUS JOURNEY SDN BHD V EBONY RITZ SDN BHD <p><em>An analysis on the law and relief for minority oppression as provided by Section 346 of the Companies Act 2016 as recently propounded in the decisive landmark decision of the Federal Court in Auspicious Journey Sdn Bhd v Ebony Ritz Sdn Bhd &amp; 5 Ors [2021] 3 AMR 777.</em></p> Choong Kwai Fatt Yap Sze Yinn Copyright (c) 2022 INSAF The Journal of the Malaysian Bar 2022-02-18 2022-02-18 39 1 176 194 LADD v MARSHALL: RELEVANT OR REDUNDANT? <p><em>Ladd v Marshall [1954] 3 All ER 745, an English Court of Appeal decision, is a landmark decision on the introduction/admission of fresh/further evidence. Ladd v Marshall has been adopted by the Malaysian superior courts, including by the Federal Court in Lau Foo Sun v Government of Malaysia [1970] 2 MLJ 70. However, subsequently, the Rules Committee introduced Rule 7(3A) of the Rules of the Court of Appeal 1994, Order 55, Rule 5A of the Rules of the High Court 1980, and Order 55, Rule 7 of the ROC 2012 with regard to the introduction/admission of fresh/further evidence. This paper seeks to argue that Ladd v Marshall is now redundant (at least in relation to introduction/admission of fresh/further evidence in the Court of Appeal and below) in light of the abovementioned legal provisions.</em></p> Joshua Wu Kai-Ming Copyright (c) 2022 INSAF The Journal of the Malaysian Bar 2022-02-18 2022-02-18 39 1 195 200