China's New Law Enforces South China Sea

Hainan gives police power to stop illegal sea entry

Border patrol police in China's southernmost province of Hainan on Tuesday were given the power to embark on and check ships which illegally enter its waters.

Detailed Regulations

A newly revised maritime regulation was enacted by the Standing Committee of Hainan Provincial People's Congress on November 27.

★The regulation defines six practices of illegal activities of foreign ships or crews. These include illegal landing on the islands under the jurisdiction of Hainan, damaging coastal defense facilities or facilities for production and living, and carrying out publicity campaigns that endanger China's national security.

★The police can land on, check, seize and expel foreign ships illegally entering the island province's sea areas.

★Hainan border police are entitled to use these measures to stop the illegally entering ships or to force them into changing or reversing course

★According to the UN Convention on the Law of the Sea, foreign ships are only allowed to make inoffensive passage through China's territorial waters, meaning they can neither stop nor drop anchor.

★In the past, when foreign ships broke the UN convention, the best thing our patrol force could do was chase them out of China's waters. This new regulation will change that situation and grant the patrol force the legal means to actually do its job.

Source: Xinhua-Global Times

Viewpoints

"This new regulation showed that China will strengthen the construction of its maritime law in the near future. The power granted by the international convention must be reflected in the domestic legal system.  Past maritime conflicts in the South China Sea have exposed the deficiencies in China's maritime law system and the new regulation is aimed at fixing those problems,"------Li Zhaojie, a maritime law professor from Tsinghua University

"China's move to establish domestic laws and regulations in the sea will inevitably lead to resistance from countries that have disputes with China regarding related sea areas. China must be prepared for all kinds of consequences, from diplomatic spats to administrative measures, and even possible military confrontation. On the other hand, China should be more vocal in expressing its preference in solving the disputes in line with international laws and customs,"------Zhu Zhenming, deputy director of the Southeast Asia Research Institute affiliated with the Yunnan Academy of Social Sciences

South China Sea Conflict

Photo: China's National Administration of Surveying, Mapping and Geoinformation

★The South China Sea covers an area of 700,000 square kilometers, and some 200,000 square kilometers of waters are settled. The region has abundant resources of oil and natural gas, and some surrounding countries have been exploring resources there for years. ★China has declared indisputable sovereignty over South China Sea islands and their surrounding waters, but several Southeast Asian countries, including Vietnam and the Philippines, have made competing claims. ★Countries including Vietnam, Brunei, Indonesia, Malaysia and the Philippines lay claim to parts of the South China Sea, which contains important shipping routes and is also believed to contain rich oil and gas reserves. The issues in the South China Sea are not only a conflict over the islands, but also includes resources of oil and natural gas, underwater archaeology, hydrogeothermal and fishery.

China's Actions

On June 21, the State Council approved the establishment of Sansha city, the government of which is located on Yongxing Island, to manage the unpopulated Xisha, Zhongsha and Nansha Island groups and surrounding waters. The move is intended to maintain China's sovereignty over the area.
GT editorial: The idea of establishing Sansha city emerged as early as 2007, but was shelved due to protests by Vietnam. Now China has taken a concrete step, signaling its determination to administer the Nansha Islands and related sea areas. The new level of management carries more weight than the law of Vietnam.More

China issued new passports that  include a map of territories also claimed by other countries.The map lays clear claim of China to the maritime sovereignty in the South China seas.
The on-going passport row can be solved via diplomatic channels.  After all, it is not possible to suspend Sino-foreign personnel exchanges due to this episode.------Zhao Gancheng, an expert on Southeast Asia at the Shanghai Institute for International Studies

Related Reports

	Peace will be a miracle if provocation lasts The standoff over Huangyan Island in the South China Sea continues and Manila appears fully prepared to create more tensions. China's foreign ministry has noted that China is fully prepared to respond to Manila's move to escalate the situation. The remarks are seen as China sending a sign that it will not rule out the use of force.
	Deep-water drilling starts The nation's first indigenous deep-water drilling rig, the CNOOC 981, will begin operations on May 9 in an area in the South China Sea 320 kilometers southeast of Hong Kong. The move, hailed by analysts as an effective way to reinforce China's territorial claims in the region, came amid an ongoing standoff between Chinese and Philippine ships in waters near Huangyan Island.
	China de-escalates situation in Huangyan Island by withdrawing two vessels China is de-escalating the situation in Huangyan Island in South China Sea by withdrawing two law enforcement vessels, Zhang Hua, spokesman of Chinese Embassy in the Philippines said on April 23. Two Chinese vessels, a Fishery Administration ship "Yuzheng-310 " and a Chinese Maritime Surveillance ship No. 084, have already left the Huangyan Island area by April 22, Zhang said. "There is only one Maritime Surveillance ship remaining in the Huangyan Island area for its law enforcement mission."
	Sansha new step in managing S.China Sea The Chinese government has raised the administrative status of Xisha, Zhongsha and Nansha islands in the South China Sea from county-level to prefectural-level, according to a statement on June 21.
	China's new passport map riles neighbors Vietnam's immigration authorities are issuing separate visa sheets to new Chinese passport holders instead of stamping directly on visa pages, after Beijing issued new passports that  include a map of territories also claimed by other countries.

By Bai Tiantian and Liu Sha Globaltimes

Former badminton star admitted a British barrister-at-law and now an advocate and solicitor of Malaysian High Courts

Raising the bar: Ang showing her admission petition to her father Chin Huat. Looking on is her mother Yoong Lai Chun and sister Annie. 

 

KUALA LUMPUR: She used to be a star in the badminton court but now it is the court of law that beckons gutsy Ang Li Peng.

She has created history by being the first Commonwealth badminton gold medallist to be called to the Malaysian Bar.

The national badminton player overcame the odds, including the language barrier, to achieve her ambition, which seemed like a dream seven years ago.

“I am over the moon. I never thought this day would finally come. Thank God, everything turned out beautifully today. It is amazing, it is like a dream come true,” the 31-year-old said after being admitted and enrolled as an advocate and solicitor of the High Courts in Malaya at the Jalan Duta Court Complex here along with others.

The petition was made by lawyer Tan Sri Cecil Abraham at the Appellate and Special Powers High Court before Justice Abang Iskandar Hashim.

Besides family members and friends, Kuala Lumpur Racquet Club founder Datuk Seri Andrew Kam and Olympic Council of Malaysia honorary secretary Datuk Sieh Kok Chi turned up to show their support.

Ang posing with her gold medal at the 2002 Commonwealth Games in Manchester.

 

Ang, who read law in Britain and has been a barrister-at-law at Middle Temple since last November, said she wanted to become a lawyer because as a badminton player, she believed in fair play and justice.

But the road to success was not an easy one. She managed to do her A-levels at the age of 24 and had to overcome her struggles with the English language.



“I did not speak good English. I could not even construct a sentence properly,” said Ang, who had studied at a Chinese medium school.

“That is why I'm very pleased for being able to graduate with a British law degree. I kept practising and will keep practising,” she added.

Ang, who is now pursuing her post-graduate studies in law in London, said she still had a lot to learn.

“The transformation from one court (badminton) to the other is challenging but I will continue to work hard and focus on being a better lawyer,” said the former doubles champion, who plans to specialise in corporate law.

She said it was very tough to study A-levels seven years after completing her SPM examinations.

“Going back to school was really tough. There were times when I wanted to quit.

“But I decided to remain steadfast with the support of family and friends. Determination is the best way,” said Ang, who retired from professional badminton at the age of 21 after winning the Commonwealth doubles gold in Manchester.

By FLORENCE A. SAMY The Star/Asia News Network

How to impress Malaysian law examiners?

The semester examination has just ended at my university. Working late till the wee hours of many mornings, I completed the evaluation of several thick bundles of examination scripts. As always, a fair number of answers were illegible, incomprehensible and terribly disorganised.

FOR all of us in the teaching profession, the periodic ordeal of marking examination scripts arouses suicidal as well as homicidal instincts!

Many students fail to exhibit basic knowledge of the subject and, understandably, fail the examination. Others have undoubted ability but not the technique or methodology of writing effective answers. It is to the latter group of law students that I wish to address today’s column.

Let me begin by saying that law is “reasoned argument”. To perform satisfactorily in the field, some special skills and techniques need to be cultivated.

Language: A law student should understand that oral and written communication skills are absolutely indispensable for the effective practice of the law. Law students should seek constantly to improve their command of the language by reading newspapers, law books and law journals.

Original sources: A good law student buys her own textbooks and statutes and does not rely entirely on class handouts. She constantly supplements class handouts with self-study from textbooks and adds to the “bank account” of knowledge opened by the lecturer for the students.

Art of reading: Reading is an art. Unless we have a smart strategy, it is entirely possible to get lost in the undergrowth. In reading a book or article, the student must avoid beginning at the beginning and plodding to the end. She must first look at the headings and sub-headings to get a broad feel or outline of what the chapter contains.

She must proceed from the general to the particular; from the woods to the trees. If an easy book or handout is available, she must read that first to get a background.

Self-study: Her study techniques must have three aims. First, to understand the basic principles of the law. Second, to recall basic ideas. To achieve this she must summarise the main principles or ideas in simple diagrams, charts, “magic words” or acronyms. These “scaffoldings” or outlines must be committed to memory. A third aim must be to evaluate existing materials and to highlight the flaws in the laws.

Attending tutorials: Successful students go prepared to class bubbling with queries. During the class or tutorial, they don’t just hear, they listen. They jot down prolific notes. They ask questions orally or by e-mail or in other written form. They participate.

Study groups: Successful law students form informal groups for study and revision. They try to be in a group of hard workers and independent thinkers. They encourage differences rather than conformity. They expose their understanding to scrutiny by others.

Summarising notes: Organising, systematising and summarising knowledge is the best way to master it. In preparation for the examination, a good student summarises each topic on one A4 page or on index cards or uses flow charts or diagrams to organise the vast amount of material collected.

For example, the whole topic of constitutional supremacy in constitutional law can be summed up in six points:

> Article 4(1) and 162(6) on supremacy of the Constitution
> Fundamental rights
> Federal-state division of powers
> Judicial review
> Amendment process
> Darurat (emergency).

These six points can, in turn, be summed up in one magic acronym AFFJAD to help you to recall the broad contours of the topic effortlessly.

Likewise, important cases could be summed up in half a page with a few lines each on three important parts of each case: the facts, the issues, and the court’s decision on each issue.

Past years’ examination papers: Familiarity with existing patterns of evaluation helps greatly in preparation. A successful student obtains and analyses past years’ examination questions. She prepares charts to discover the examiners’ preferences or patterns. She is, however, aware that examiners change from year to year and are not bound by patterns or precedents.

Practising written answers: A good student solves some past years’ questions and submits them to her lecturer for evaluation. This way she seeks to learn by simulation. She submits her knowledge as well as her methodology to sympathetic scrutiny.

Effective presentation: Examinations are like life. Substance is important but so is show! An organised, easy-to-read presentation always secures higher marks than one that is all jumbled up, disconnected and disorganised.

In writing her answers in the examination hall, a wise student does not start writing the moment she is allowed to do so. She spends five minutes organising her answer; drawing up the scaffolding or the outline on the left page of the answer book.

ATACR formula: For each essay or problem question, a wise student follows the ATACR formula. “A” stands for analysis or breakdown of the question or problem into its constituent parts. The more issues the student spots, the higher her marks are likely to be.

“T” refers to theory or the law relating to each issue identified above. The theory and the law are found in statutes, decided cases and juristic works.

The next “A” stands for application of theory or law to the facts of the case or question at hand.

“C” refers to conclusion on the point being discussed and “R” signifies the remedy or course of action to be recommended.

Reflecting On The Law
By Shad Saleem Faruqi

> Shad Faruqi is Emeritus Professor of Law at UiTM 

‘Violent lawyer’ may face action

PETALING JAYA: The Bar Council is looking at issuing a show-cause letter to the lawyer who was caught on video pushing and kicking a client.

Bar Council president Lim Chee Wee said that if there was a cause for further action, the lawyer would be referred to the Disciplinary Board.

“The Board (which is independent of the Bar Council) will decide whether to convene a disciplinary committee to investigate further or deal with the matter summarily.

“If convicted, the lawyer can face reprimand, fine, suspension, or be struck off the roll,” he said.

He said this in response to a 9.03-minute video clip on a “hooligan lawyer” that has gone viral.



The video showed two men, believed to be a lawyer and a house buyer, arguing in the presence of three others in an empty house on June 19.

The argument started when the house buyer refused to acknowledge receipt of several documents handed to him by the lawyer.

The lawyer, Tan Hui Chuan, who is a former Selayang municipal councillor, said it was not fair to pre-judge him.

“I am only human. The client bombarded me with hurtful and disrespectful words over and over again.

“I am 58 years old and about to retire. I never had any disciplinary issues before. As all can see, I only pushed him away from me, to make him stop.

“But he went on and on. I raised my hands several times as a sign of surrender but he kept pestering me.

“And yes, I kicked him once. But it was a soft kick,” he said.- The Star

Sources:

http://www.malaysianbar.org.my/

Related posts:
Ethics vital for lawyers! Force to sign documents & hit client?

Lawyer fleeced millions from victims in property scam 

Lawyer to stand trial to settle RM3.9mil claim against land owners

Ethics vital for lawyers! Force to sign documents & hit client?

I REFER to the YouTube clip (http://www.youtube.com/watch?v=pXGuSf_YARM&sns=fb) showing a lawyer forcing a client to sign documents without reading the contents, shouting at the client, shoving him and kicking him. (See below: Lawyer who hit client claims self-defence)



Any person who encounters poor legal services or suffers detriment has the right to seek remedy.

In Malaysia, action against lawyers lies in the hands of the Disciplinary Board set up under the Legal Profession Act 1976. The Disciplinary Board is independent of the Bar Council, consists of senior lawyers, and is chaired by a judge of the Court of Appeal. It deals with all complaints against lawyers.

The Bar Council is only empowered to deal with cases of misconduct involving dishonesty, which includes cases of cheating and the misappropriation of funds. If the Bar Council receives a complaint involving dishonesty, it can apply for a court injunction to stop the lawyer concerned from practising pending investigations into his case, or apply to the Disciplinary Board for an order of suspension pending such investigations. The Bar Council will also lodge a police report in respect of the complaint if the complainant has not already done so.

The Bar Council regulates the legal profession in this country and it can deny any application to join the profession – based on the “good character” requirement. The meaning of “good character” can be a little bit hazy, but it’s been described as having a strong moral fibre, a belief the law must be upheld, and an appreciation of the difference between right and wrong.

As a regulating body, the Bar Council polices the conduct of lawyers, and disciplines members not only for unethical actions, but also rude or overly aggressive behaviour. Anyone found guilty of professional misconduct shall face suspension.

At university, legal ethics should be viewed as a major subject, to provide students with a thorough grounding of the proper spirit in which lawyers should practise. Honesty should be a crucial part of a lawyer’s education. By the time students begin pupillage, they should already have a good grasp of what makes a good lawyer. This should include knowledge on how to handle clients’ money ethically and the manner in which they are to deal with other lawyers and the courts. Such education should imbue a correct and broad mindset in students and guide them during their pupillage, as they begin to apply the legal knowledge they have acquired in theory to real-life cases.

A word to all legal professionals in Malaysia: respect your clients, the profession, the country and the public interest. Law is an imperfect profession in which success can rarely be achieved without some sacrifice of principle. But we can strive to make it a notable profession that people can respect in this country.

JACK WONG KIN TUNG
Law lecturer, Ipoh

Lawyer who hit client claims self-defence

By SIRA HABIBU  sira@thestar.com.my

http://www.malaysianbar.org.my/

PETALING JAYA: A video clip of a house buyer being pushed and kicked by a lawyer has gone viral but the purported attacker says he did it in self-defence after being provoked.

Lawyer Tan Hui Chuan, who was a Selayang municipal councillor until recently, said the house buyer had uttered “hurtful and disrespectful words”.

“I just wanted him to get away from me because he was provoking me, so I pushed him. But I did not punch, scratch or slap him. Yes, I kicked him. But I did not kick to injure him. It was a soft kick,'' he said when contacted yesterday.

The nine-minute video clip shows two men arguing in the presence of three others in an empty house. At one point, one of the men, who is apparently infuriated, pushes the other man and kicks him once. He shoves him several times later.

Gone viral: A still from the video grab purportedly showing the attack.

 

The footage, recorded by a woman who came with the house buyer, was posted on YouTube on June 21, two days after the alleged incident.

The house buyer claimed he was upset that the lawyer “forced” him to sign some documents without giving him time to verify them first.

However, the lawyer said he merely asked his client to sign the acknowledgment of receipt of several documents that had been tendered to the bank.

“It was neither an agreement nor a contract as all transactions had been completed a week earlier. The client has already taken possession of the property,'' he said.

Tan said his client went to his firm several days later and signed the acknowledgement of receipt.
“And the video was released after that,'' he said.

The lawyer felt that the house buyer had tarnished his reputation by releasing the video.

Bar Council president Lim Chee Wee said victims of physical assault could sue for damages, adding that the house buyer could lodge a police report as well.

“No amount of provocation should attract (any form of) physical assault,'' he said.

He also said that in cases of misconduct involving lawyers, the people could lodge a complaint with the council's disciplinary board.

Theng Book offers to mediate

The Star June 10 2012

PETALING JAYA: Selangor MCA Public Services and Complaints Department chief Datuk Theng Book has offered to mediate in the controversy involving a lawyer who is alleged to have assaulted a housebuyer.

He, however, urged lawyer Tan Hui Chuan to apologise to Neo Kian Hua within a week.

“Failing which, Neo can take the necessary action if he wants to,’’ Theng Book told a press conference at the Selangor MCA office here yesterday in the presence of Neo.

The alleged assault happened on June 19 after Tan summoned Neo to the house he had purchased to sign some documents.

A video clip showing an enraged Tan pushing and kicking Neo posted on YouTube went viral.

Tan, who was a Selayang municipal councillor until recently, had clarified that Neo had uttered “hurtful and disrespectful words” and that he had acted after being provoked.

The lawyer also claimed that he had merely asked Neo to sign to acknowledge the receipt of several documents that had been tendered to the bank.

Neo, a 32-year-old IT consultant, said yesterday that he had never met Tan prior to the incident as he had only dealt with his assistant.

“I also felt strange as to why he was calling for a meeting at the house and not his office,’’ said Neo, who added that he decided to get his girlfriend who accompanied him to the meeting to record it.

Neo claimed that Tan lost his cool after he (Neo) began reading through the documents before signing them.

“As I continued to read the documents, Tan grabbed them from me and told me to go to his office to do the signing,’’ he further claimed.

Theng Book advised all housebuyers and vendors to appoint their own lawyers to protect their interests.

“Banks should not recommend lawyers to vendors and buyers,’’ he said.

Related posts:

Lawyer fleeced millions from victims in property scam 

Lawyer to stand trial to settle RM3.9mil claim against land owners

‘Violent lawyer’ may face action 

Malaysian Consumer Protection (Amendment) Act 2010 deals with unfair contract terms

Remember our series of articles on unfair contract terms? Well, it now seems that the Malaysian Parliament is set to finally come up with a law addressing the issue in the upcoming Consumer Protection (Amendment) Bill 2010.

Preferring the approach of amending an existing statute to enacting a wholly new one, the Bill inserts a new Part into the existing Consumer Protection Act 1999, namely Part IIIA intituled Unfair Contract Terms. This Part contains new sections 24A to 24J all intended to address the issue of when businesses seek, via standard form contracts, to impose on consumers terms excluding or limiting their liability when they arise, as well as other terms thought generally considered unfair. Section 1(3) provides that the Part applies to contracts entered into after the coming into force of the Bill.

Section 24A deals with general interpretation in connection with the Part. The definition of a contract in section 2 of the Contracts Act 1950 is retained and a “standard form contract” is defined as a consumer contract that has been drawn up for general use in a particular industry, whether or not the contract differs from other contracts normally used in that industry. An “unfair term” is defined as a term in a consumer contract which, having regard to all the circumstances, causes a significant imbalance in the rights and obligations of the parties arising under the contract to the detriment of the consumer. Section 24B states that notwithstanding the Contracts Act 1950, the Specific Relief Act 1950 and the Sale of Goods Act 1957 as well as other provisions of the law for the time being in force, the Part shall apply to “all contracts”. This presumably addresses implied terms regarding sale of goods in the Sale of Goods Act 1957, specifically sections 14 to 16 of that Act regarding transfer of title and issues of merchantability and fitness for the purpose for which goods are bought. The section fails to mention the Hire Purchase Act 1967, of which section 7 also deals with implied terms in hire purchase agreements. Also should the Part really extend so broadly so as to include all contracts? Presumably if such is the case, a contract or contract term proscribed by law, such as those in the Schedules to the Housing Development (Control and Licensing) Regulations 1989, or financial or securities contracts, or contracts or bills of consignment or lading, be included as well?

Section 24C and 24D are probably the most important sections in the new Part. The Malaysian Parliament has preferred to split the question of unfair terms into two, dealing with terms that are procedurally unfair (section 24C) and substantially unfair (Section 24D). Section 24C(1) proscribes that a contract term is procedurally unfair when

i. It results in an unjust advantage to the supplier (ie. the business relying on the term in question) and/or;

ii. It results in an unjust disadvantage to the consumer;

iii. On account of the conduct of the supplier; or

iv. On account of the manner or circumstances that the contract is entered into between the supplier and the consumer.

Section 24D(1) holds that a contract term is substantially unfair when;

i. it is in itself harsh;

ii. it is oppressive;

iii. it is unconscionable;

iv. it excludes or restricts liability for negligence;

v. it exludes or restricts liability for breach of express or implied terms of the contract “without adaquate justification”.

The approach of splitting the dealing with such terms into procedurally unfair and substantially unfair is rather unique and this author knows not of any other jurisdiction within the Commonwealth that has chosen this approach. It is also, in this author’s view, rather needless and unneccessary. A substantially unfair contract term is neccessarily procedurally unfair as well. The two are not mutually exclusive. There is also the troubling question of what would about to inadaquate justification for breach of express or implied terms of a contract. When is the justification adaquate and when is it not? Presumably this follows the approach of determining if whether the exclusion of such terms are fair and reasonable or not, but for this to work the statute itself must give an account of what “adaquate justification” amounts to rather then just simply leave the matter for the courts. Such an approach would be in tandem with those used in other jurisdictions, such as the United Kingdom in their Law Commission’s proposed Unfair Contract Terms Bill 2005, specifically clase 14(1) which provides a test on how contract terms are deemed not fair and reasonable. It is also noted that Malaysia has decided that exclusion or limitation of liability for negligence is to be disallowed outright rather than having it hang on whether such an exclusion or limitation is fair and reasonable or as the Bill puts it “without adaquate justification”.

Sections 24C(2) and 24D(2) at least partially follow the approach of Clause 14 of the UK Bill  (specifcally Clause 14(4) )when they list the considerations to be had when determining when a contract term is procedurally or substantially unfair. The considerations are mostly the same between the soon to be Part IIIA of the Consumer Protection Act 1999 of Malaysia, and Clause 14(4) of the Unfair Contract Terms Bill 2005 of the United Kingdom, and again the latter does not contain needless distinction between what is substantively and what is procedurally unfair. The new section also fails to provide an example of a list of terms that can be thought unfair unlike the corresponding Clause in the UK Bill.

Section 24E states that it is for the supplier (ie the business) to prove that the contract term is with adaquate justification. This is the same as Clause 16(1) of the UK Unfair Contract Terms Bill 2005. Section 24F provides that a court or the Tribunal established by the 1999 Act may deal with any issue of any unfair contract term even if none of the parties has raised the matter, again similar to Clause 21 of the UK Bill.

Section 24G(1) enacts that a court or the Tribunal may declare an unfair contract term under sections 24C and 24 D to be void and subsection (2) is not unlike Clause 24 of the UK Unfair Contract Terms Bill which provides that other clauses of the contract affected are to continue in force without the offending term. Section 24H further provides that a term of a contract can still be held void even if it has been partially or wholly executed. This is a novel idea as it provides more certainty as to the position of the parties in the midst of a continuing contract.

Section 24I makes the contravention by “any person” (as defined under subsection (1)) of the Part an offence. The section is silent on how exactly is the Part contravened. First of all, why “any person”? Is it possible for the consumer to commit an offence under the Part? Or is the inclusion of any unfair contract term by a supplier/business to be made an offence? If this is so, it should have been clearly spelt out. There is also a host of other matters that arise by making unfair contract terms an offence, for instance, it could inhibit freedom of contract. The high penalties involved (RM 250,000 for a first offence and RM 500,000 for a subsequent offence, as well as RM 2,000 a day in which the offence continues) could also be pontentially crippling for small businesses. Other jurisdictions have so far not seen the need to make any inclusion of an unfair contract terms an offence and while the merits of such a move are debatable, it is suggested that a comprehensive study on the move be done at first.

Section 24J empowers the Minister to make Regulations in connection with the Part. This section could provide an avenue to remedy two important defects discovered so far, namely the failure to indicate the extent of the application of the Part and the types of contracts involved and secondly, the failure to provide an list of examplary contract terms that might be thought unfair.

The proposed new Part IIIA of the Consumer Protection Act 1999 as will be introduced by the Consumer Protection (Amendment) Act 2010 contains many weaknesses, all of which could and should be addressed by enacting a single comprehensive piece of legislation on unfair contract terms, rather then by simply amending an existing statute. It does not, for example, include unfair notices. Thus while a consumer can now worry less about whether he or she may claim under a defective contract, the same might not be said for a notice, for example, one notice excluding liability for negligence when using a swimming pool or car park, for example, is not covered by the new Part on a plain reading of the Bill, which clearly limits its scope to standard form contracts, and does not mention notices. This is in spite of Domestic Trade and Cosumer Affairs Minister Datuk Seri Sabri Yaakob’s claims to the contrary.

The Bill also makes an unneccesary distinction between procedural and substantive unfair contract terms. It fails to make provision as to what types of contracts exactly are covered by the Part and extending the application to “all” contracts could possibly have unexpected and unfavourable ramifications. It crucially also fails to address the issue of application taking into account where the contract is concluded (ie whether in or outside Malaysia) or what happens when a contract applies foreign law. A test for determining what amounts to “without adaquate justifiaction” is absent, as well as a list of examples of unfair contract terms. What offence created is not clearly defined and the potential effects not carefully studied.

On the other hand, initiative is demonstrated by providing that a term of a cotinuing contract can also be struck down on account of being unfair. On the whole, it is remarked that some form of bulwark against unfair contract terms in consumer contracts is better then nothing but there is room for improvement. It is hoped that those that be can revisit the issue in the future and consider seperate, more comprehensive legislation on the matter instead. It would be interesting, however, to see how the Malaysian courts react to the new legal provisions on unfair contract terms, especially concerning if they would follow the approach of their foreign counterparts in deducing unfair terms, or create their own notions based on the new provisions.

5 July 2010 by Alistaire 

THE LEGAL IMPLICATIONS OF THE CONSUMER PROTECTION
Consumers Association of Penang

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Aging Parents, Embattled Kids: Can You Find Pain Relief?

By Carolyn Rosenblatt, Forbes Contributor

This is a real situation.

Three brothers are engaged in pitched battle over their mother’s living situation.  Mom is severely demented and can’t care for herself independently. She had long term care insurance, but she has almost exhausted that benefit.  Her only remaining asset is her home.  She needs full time care.

The eldest brother, James, seized power over her finances from the middle brother, Paul.  He got mom to appoint him the power of attorney and the agent on the healthcare directive, and displaced Paul, who had always been on both documents . Mom wasn’t competent to sign anything when she did, but James didn’t seem to care.  That infuriated Paul.  Little brother Joe is somewhat passive, but sides with Paul.

The three never got along very well, even as kids. There was a lot of arguing and their communication did not improve as they grew up. They largely avoided one another. Until now.

James decided, without communicating with either of his brothers, to move mom to an assisted living facility that takes care of people with dementia.  She would have her own room. It would be in her neighborhood. Her house would be sold to pay for it.  A deposit was paid.

When Paul heard of this, he became enraged, told Joe and they both threatened to sue James.   In response, James found a lawyer and began guardianship proceedings.  There is no money in mom’s checking account to pay the lawyer, so James promised the attorney that she could get paid when the house was sold.  It’s a nice home.

Mom’s long time estate attorney suggested mediation.  She urged the siblings to stop upsetting their mom and each other by using a neutral person to help them try to reach some agreements.  This sounds like a good solution, doesn’t it?  They could meet with the mediator,  and see if they could figure out a way to be more civil to each other around the move for mom. They definitely needed help to work toward a less aggravating future for each other caring for their mom.

James refused to go to mediation.

The guardianship proceeds apace.  Thousands of dollars will be needlessly wasted on the litigation,  James against Paul and Joe.  The brothers will become ever more acrimonious and the story will not end well during mom’s final days.

As a mediator for families in conflict, I can only say that this story keeps repeating itself in different forms.  It’s frustrating for me, as I know that in most instances, mediation of family conflicts about elders can really help and it is quite often successful.  The hard thing to understand is why wouldn’t the Jameses of the world want to give it a try?  Is it the power they yield?  Is it control over their siblings via legal documents and court cases?

Certainly, the cost of mediation can’t be the reason to refuse it.  It is far, far less expensive than just about any court proceeding.  If siblings are scattered, as in James, Paul and Joe’s case, mediation can even be done over the phone. You can’t make anyone do it though. It’s voluntary.

A factor at play is James’s attorney’s motive in handling the guardianship proceedings. Lots of money is at stake if the litigation keeps going.  She can rake it in when that house sells.  If she agrees to go to mediation with Paul, and the siblings settle their differences, there goes her paycheck.  If you don’t think some lawyers want to keep conflict alive and churning for their own selfish sakes, think again.

What’s the takeaway here?

Mediation works.  Think about it if your family is in conflict over an aging parent.  Here’s an illustrative quick video http://agingparents.com/wp/about-carolyn-l-rosenblatt-r-n-attorney-at-law/ (scroll to bottom of the page).

It is a dignified way to resolve your differences without a court. No one judges you. You work it out as you choose, not how anyone else tells you to do it.

After my 27 years as a litigator, I can tell you firsthand that in so many instances, no one feels very satisfied when you’re done with litigation.

Some of us call ourselves “elder mediators”. We work in this arena of warring families and parents. It’s not therapy. It’s short term problem solving.  I encourage those who are feeling the heartbreak of scenes like the one above to find a mediator and get going.  There is hope, even when it seems impossible.  You can make it better.

Until next time,

AgingParents.com
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The law’s great mysteries

Reflecting on the law By SHAD SALEEM FARUQI

A breathtaking variety of approaches to the law light up the legal firmament in so many spectacular ways that one cannot fail but be impressed.

EVERY judge, lawyer and law teacher has to grapple with some central and eternal riddles that surround the law. The most basic, unanswerable (and embarrassing) question is “what is ‘law’?” Is there some universal concept of law or are there many varied conceptions?

In its simplest form, law could be defined as rules of conduct or norms or standards of behaviour. However, the rich reality is that rules exist in many forms and originate from many sources. Many tributaries contribute to the legal main.

> At the dawn of human history, rules of conduct existed primarily by way of custom and traditions of the tribe or community.

> As formal religions took hold, legal norms began to be prescribed by religion, ethics and morality.
> With the rise of the political state, law came to be attributed to the commands of the state or the political sovereign.

> In modern society, the legislative mono­poly of the state is complemented by innumerable civil society groups and other centres of authority like business and professional guilds. Their precepts and practices constitute an important alternative source of informal legal practice.

> A large part of social, professional and economic life is governed by the private law of contract, the law of the association and the contractual rules at the workplace which are predominantly dictated by non-state actors.

> In an increasingly globalised world, the dictates of international organisations and the treaties and agreements between multi-national parties regulate much of our beha­viour. The sovereign state is in decline and more and more international laws are lapping at our shores.

> When disputes arise, we go to courts, tribunals or mediatory or conciliatory bodies. Their decisions are generally holistic and are based on a multiplicity of competing sources. Rarely does a judge decide on the basis of a lone rule. He reads a statutory provision in the context of provisions from other statutes and he supplements formal rules with informal standards that enrich our life and legal system. Like a painter, he enriches the legal canvas with religious, moral, social, economic and historical colours. Law becomes what he, the interpreter, declares it to be and not what the legislator actually prescribed.
.
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Clearly, there is a multiplicity of competing sources in the majestic network of the law. Which source is legally acceptable and which not? Which rules qualify as law and how do we distinguish legal rules from other types of rules? Within the multiplicity of sources, is there a clear hierarchy of superior and inferior norms?

There are many other eternal questions that surround the law.

What is the basic or essential foundation on which law rests? Is it reason or revelation, coercion or consent, morality or utility, history or psychology?

What is the relationship between law and morality and law and justice? Are flagrantly immoral and unjust laws legally valid? In the definition of law, is moral content relevant? Can a horrendously unjust legal order like the Nazi system satisfy the nomenclature of legality? Is morality a criterion of validity or a factor contributing to compliance and continuity?

Must law be defined by reference to who makes the law, i.e. by the law’s source, or by reference to how it was made, i.e. by reference to procedures accepted in a society?

Must law be defined by reference to its functions in society so that any rule that performs regulatory and normative functions qualifies to be called law?

Why is law obeyed? Is it because we have been psychologically conditioned to believe that we have a duty to obey the law? Or do we obey the law because of the fear of sanction?

If fear is the sole motivation behind obedience, then how is the law of the state distinguishable from the law of the evil gunman? If there is a moral or utilitarian duty to obey the commands of the state, is this duty absolute or conditional to the state’s performance of its social contract?

What are the aims and functions of law in society? Is law about order or about freedom? Is it about stability or about change? Is it a heathen word for power or is its job to balance the might of the state with the rights of the citizens?

Does law mould society or does society mould the law?

What is the role of the judiciary in the legal system? Are judges law finders or law makers? If judges contribute building blocks to the law, is such law-making undemocratic and undesirable?

To none of the above issues are there any simple, single answers. Much depends on the philosophical approach one adopts. There is a breathtaking variety of such approaches and they light up the legal firmament in ways so spectacular that no one can fail to be impressed.

Among the prominent approaches are naturalism, legal positivism, historicism, realism, Marxism, post-modernism, feminism and the perspectives of anthropology, critical legal studies and sociology.

Naturalism stands for idealism in the law. It links law with substantive and procedural justice. It supports inalienable rights.

Positivism focuses on law’s link with the state. It rejects higher sources.

Historicism and anthropology de-emphasise formal sources. They see law as an evolutionary product of custom and the spirit of the people.

Realism defines law by reference to judicial decisions. It sees judges as the central agent of law’s interpretation and evolution.

Marxism, feminism, critical legal studies view law as class ideology and as the preserver of the unjust status quo. They seek reform and change.

At this moment in Malaysian history when transformation is being sought through the law, one must be hopeful, yet cautious.

Laws are as good as the people who administer them. Justice is not in legislation but in administration.
> Shad Faruqi is emeritus professor at UiTM and visiting professor at USM.

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Malaysia world's No.1 highest civil servants-to-population ratio! Its tenure of service legally vulnerable but notoriously difficult to dismiss!

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Safeguards for public servants

REFLECTING ON THE LAW By SHAD SALEEM FARUQI

The legal position of public servants regarding security of tenure of service is quite vulnerable, but in reality, action against delinquent public servants is notoriously difficult to sustain.

MODERN society is held together by services provided by officials of the state. The public service is the pivot around which the administration of the contemporary state revolves. Every country’s economic, social and educational policies are ultimately dependent on the quality and commitment of its public officials.

Article 132(1) of the Federal Constitution defines “public services” to include the armed forces, the judicial and legal service, the general public service of the Federation, the police force, the joint federal-state public service, the public service of each state and the education service.

Employees of statutory bodies, public companies, universities, or any other body or authority established under federal or state law, are not public servants for the purpose of the Constitution.

In relation to public services, a number of basic rules apply.

No security of tenure: All public servants hold office “during the pleasure” of the Yang di-Pertuan Agong or Ruler or Governor. Posts may be abolished. A ministry or service may be closed down or privatised. Parliament may refuse to allocate funds for a service.

Terms of service: The terms of service of a public servant may be altered without his consent despite a written contract of employment. Post-entry requirements like language proficiency, in-house training courses or the need to pass an examination may be imposed.

Pensions: Article 147 protects pensions, gratuities and other allowances for members of the public service, their widows, children, dependants or personal representatives.

However, these are not absolute rights. The Yang di-Pertuan Agong may reduce or withhold pension if he is satisfied that the public servant is guilty of negligence, irregularity or misconduct.

Right to equality: Under Article 8(1) of the Federal Constitution there is a constitutional right to equality before the law and equal protection of the law. Thus, no gender, religious or unreasonable discrimination can be practised at the time of the application or during the period of service.

Regrettably, Article 8’s equality requirement does not apply in the private sector or to Government-linked companies.

Racial quotas: In Malaysia, the issue of race discrimination is complicated. A little known constitutional article – Article 136 – states that all persons of whatever race in the same grade in the service of the Federation shall be treated impartially.

Difficult issues arise because Article 136 has to be read along with Article 153 which permits reservations and quotas in favour of Malays and the natives of Sabah and Sarawak.

Tun Suffian has suggested that the two articles must be read harmoniously. At entry point, Article 153 permits reservations. Once in service the equality rule in Article 136 should apply to matters of promotion, rewards etc.

Arrears: A civil servant can sue the Government for recovery of arrears or for any other breach of the law of contract.

Tortious claims: In Malaysia, the Government is not above the law. Subject to some exceptions, a civil servant can sue the Government for damages in torts if the Government or a public authority has caused him loss.

Safeguard of Article 135(1): Though civil servants have no security of tenure, they can be removed only after prescribed procedures. Article 135(1) states that no member of the public services (except a member of the armed force) may be dismissed or reduced in rank by an authority subordinate to that which had the power to appoint him.

Natural justice: Under Article 135(2) no public servant may be dismissed or reduced in rank without being given a “reasonable opportunity of being heard”.

The terms “reasonable opportunity of being heard” have generated a wealth of case law. “Hearing” means that the officer concerned should be given a proper and prior notice of the allegations against him. The notice must be adequate in terms and in time.

Subject to some exceptions, the accused should have a full and fair opportunity of stating his case in reply.

He should be supplied with all evidence, information and documents made known to the adjudicator. He should have a right to present witnesses and exculpatory evidence and to cross-examine witnesses on the other side.

Exceptions: The safeguards of Article 135(2) do not apply in some situations such as:

> The laudatory and constitutionalised rule of natural justice does not apply to forms of removal that do not amount to “dismissal” or “reduction in rank”.

For example, “dismissal” is distinguishable from “contractual termination”, “termination in public interest” or “compulsory retirement”.

A reversion to the former post does not amount to reduction in rank provided the public servant was not already confirmed in his new post.

> “The right to be heard” does not imply the right to be heard orally. Hearing can be oral or by way of written representation.

> Members of the armed forces are not entitled to a hearing.

> There is no need to give a hearinIn reality there are many other ways of dealing with errant civil servants. Some of these ways do not attract the pristine safeguards of Article 135. For example:

> Even prior to a finding of guilt, an officer can be interdicted (ordered not to report for work) on full pay or half pay.

> In several circumstances, an officer can be suspended on no pay.

> Termination under the contract of employment need not be preceded by prior hearing.

> In some circumstances public servants can be prematurely and compulsorily retired. They recieve pension but lose their job.

The overall picture is that the legal position of public servants is quite vulnerable. In reality, however, action against delinquent public servants is notoriously difficult to sustain.

Many wrongdoers rely on technical or procedural flaws to obtain judicial review and escape accountability.
Enforcing quality and commitment in public services is not easy and require leadership of the highest order.

> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM

Every 3 taxpayers supports 2 civil servants in Malaysia
 

“The highest ratio of civil servants in the world”!
Most bloated civil service 

* With 1.3 million civil servants to a population of 26 million, Malaysia has one of the highest civil servants-to-population ratio in the world by the Organisation for Economic Cooperation and Development standards.

* In 2009, Malaysia’s civil servants-to-population ratio was the highest in Asia Pacific. The ratio was 4.68 per cent, compared to Singapore’s 1.5 per cent, Indonesia’s 1.79 per cent, Korea’s 1.85 per cent and Thailand’s 2.06 per cent all of which have less than half our ratio.

Subject: Civil Servants in Malaysia...Alarming Figures 1. Number of civil servants in Malaysia   2000   -  894,788   2008  -  1.2M   2011  -  1.3M+  During 2000 to 2008, increase of 300,000 or each year 38,151 or each day 104. 2 . Money spent on salary / remuneration   2005  -  RM25.6Billion   2008  -  RM41.0Billion (or from each tax payer RM22,800)   An increase of a whopping 60% during 3 years only. If it is private company, sure "bungkus"!   3. Population that pays tax  1.8M     Number of civil servants   1.2M Meaning every 1.5 tax payer support 1 civil servant.   4.  Population Vs number of civil servant.  (I believe should be one of the highest in the world)

COUNTRY	%
Malaysia	4.68
Thailand	2.06
Korea	1.86
Philippine	1.81
Indonesia	1.79
Laos	1.24
Cambodia	1.18

The best civil servants in the world-MALAYSIA BOLEH

Best bloated civil service

    * With 1.3 million civil servants to a population of 26 million, Malaysia has one of the highest civil servants-to-population ratio in the world by the Organisation for Economic Cooperation and Development standards.

    * In 2009, Malaysia’s civil servants-to-population ratio was the highest in Asia Pacific. The ratio was 4.68 per cent, compared to Singapore’s 1.5 per cent, Indonesia’s 1.79 per cent, Korea’s 1.85 per cent and Thailand’s 2.06 per cent all of which have less than half our ratio.

Best way to bleed a budget dry

    * Much of the budget (2011) continues to go into operating a bloated civil service. As much as three quarters of the national budget is spent on paying salaries and other benefits to over 1.3 million civil servants.

    * A post-2011 Budget dialogue highlighted the massive amount (35 per cent of the total RM162.8 billion operating expenditure) to be spent on emoluments, pensions and gratuities of civil servants. A panelist, Ministry of Finance budget division director Datuk Dr Rahmat Bivi Yusuff admitted that there is a need to trim the civil service to reduce the budget deficit.

Best way to bankrupt this nation

    * Whilst it is the growing trend of many countries to reduce their civil service, the PM’s Department in particular, has done the opposite. It more than doubled its number of civil servants from 21,000 to 43,554 this year. In stark contrast, the White House employs only 1,888 staff.

    * The White House budget is US$394 million for 2011. The PM’s Department has been allocated a whopping RM18.14 billion for the year 2011, almost double the RM10.2 billion 2010.

    * Pemandu, which stands for Performance, Management and Delivery Unit, was set up last year under the Najib administration as one of the pillars in his Government Transformation Plan… is a massive drain on resources. In a span of two months the government spent RM20 million just to pay 50 consultants,.

Best contradiction of 1Malaysia

    * As at 31 December 2009, the racial breakdown of the Malaysian civil service comprising 1,247,894 employees was as follows: Malay (78.2 per cent); Other Bumiputras (7.7 per cent); Chinese (5.8 per cent), Indian (4.0 per cent); and Others (4.2 per cent).

    * “This is the worst multi-racial composition of the government service, with the lowest Chinese and Indian representation in the public service in Malaysia’s 53-year history. This is clearly seen from the three sets of comparative figures of the racial breakdown of the civil service before the NEP (1971) and as compared to Dec. 2009 – Malays (60.80 per cent and 78.2 per cent); Chinese (20.2% and 5.8 per cent); Indians (17.4 per cent and 4.0 per cent); and Others (1.6 per cent and 4.2 per cent).

Best in corruption

    * Last year two out of five civil servants were deemed corrupt by Cuepacs. It was described as a worrying trend that needed to be tackled urgently.

    * Cuepacs President Omar Osman revealed that a total of 418,200 or 41 per cent of the 1.2 million civil servants in the country were suspected to be involved in corruption last year (Bernama, 2 June 2010).

Best “dumping ground”

Mohd Ariff Sabri Abdul Aziz, a former state assembly member of Pahang who is a member of Umno and who uses the pen-name Sakmongkol AK47, in his blog entry wrote: “Government service shouldn’t be treated as a dumping ground for academic rejects and mediocre material. Let’s demand a certain high standard and ensure we bring in talent that supports the demand for high standards.

“What has the government done to improve the efficiency and competence of government servants? There isn’t really competition there if the service is dominated by one race. There isn’t sufficient quality if the entry-level qualifications are so-so.

“Yet each year, to placate civil servants, the PM will appear on TV to say, we honour our civil servants because they have done a good job, blah blah. Which is not entirely true. The service is slow, the quality of officers is questionable.”

But Umno likes Muhyiddin’s make-believe. The next General Elections must be close at hand. Civil servants are made to believe that Umno is their (political) paymaster and they owe it to Umno. The party’s leaders would do or say anything to convince the government servant of this, even praising them as “the best civil servants in the world”!

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