ABSTRACTS

LegalTech Amidst the COVID-19 Pandemic: The Legal Profession's Turning Point by Josephine Bhavani Rajendra


The legal profession is experiencing a significant disruptive event amidst the ongoing Novel Coronavirus (COVID-19) pandemic. The pandemic is seen as a catalyst that has only increased the legal profession's reliance on and usage of new and innovative technologies. The COVID-19 crisis has compelled the legal profession to move beyond their comfort zones not solely in terms of using technology to facilitate legal work, but also in terms of their daily routines and the broader standards of legal practice. The restriction on legal services being listed as non-essential (except for limited criminal cases and law firms facilitating essential services) under the two-week "total lockdown" effective 1st June 2021 by the Malaysian Government, further exemplifies the importance of technological solutions in legal practice. This article extends the view that to enable continued legal services, lawyers and law firms must now adjust swiftly to the new norm and embrace innovative solutions to better serve their clients in these drastically altered circumstances. As the legal profession navigates the epidemic and postures itself for an unknown digital future, this revolutionary event will undoubtedly challenge the profession for the foreseeable future. The doctrinal approach is employed to conduct this study. The primary objective of this article is to evaluate the impact of LegalTech solutions amidst the COVID-19 pandemic and whether the current crisis may accelerate the transformation of legal practice irrevocably. Keywords: LegalTech, Legal Profession, Covid-19, Transformation.



Australia's approach to compensation for native land claims: paving the way for Malaysia by Simon Alexander Wood


Since independence the status of the indigenous peoples of Malaysia have been protected by the Federal Constitution 1958 and Aboriginal Peoples Act 1954 for the Orang Asli, and later under the Malaysia Agreement, constitutional amendments made in 1963 and state land codes so far as the natives of Sabah and Sarawak are concerned. However, governments have usually taken an approach to land use that promotes economic exploitation and development of resources. This has clashed with indigenous use of and rights to land and often resulted in loss of land, relocation and compensation for those parties affected. This has been associated with a sliding of living standards especially for Orang Asli communities. Further, native land rights became more prominent when indigenous land rights were first recognized under the common law in Malaysia over 20 years ago. However, there was no legislative response to these court decisions, and no legislative response to the UN Declaration on the Rights of Indigenous Peoples by the Malaysian state and federal governments. This has meant that indigenous land rights have remained at the mercy of the Malaysian judiciary and a generally ungenerous executive. In the area of compensation for extinguished and infringed native title this has caused significant problems. Whilst courts have on frequent occasions have awarded compensation for indigenous peoples, there has been little principled guidance in this area in a number of common law jurisdictions. This has resulted in unpredictable decisions and awards of compensation. This is unfortunate, as outcomes and remedies are key aspects of the court process for indigenous persons given that land is so important to their well-being and sense of identity. More favourably, in Australia there has more recently been a landmark case on calculating compensation (Timber Creek claim Griffiths v Northern Territory) making one of the rare occasions in which a court in the common law world has provided authoritative guidance on this complex aspect of land claims. Although only persuasive authority in Malaysia, it is sure to receive careful consideration by local courts in future claims. It is intended to discuss the Australian approach to native title remedies including the recent Australian developments on compensation and see how it may impact on or be used in Malaysia native title claims going forward. It could also provide guidance to legislators on how they might regularize and reform native land rights.



Indian judicial activism and dignity of the dead during COVID-19: A model for post- pandemic international legal order? by SACHIN MENON


Indian judicial activism and dignity of the dead during COVID-19: A model for post-pandemic international legal order? Abstract Compared to living human beings, the dead are legal entities with limited rights. Some even go far as to suggest that the dead can hold no rights. Although these two viewpoints are in themselves highly debatable and will remain difficult, but not impossible to normatively clarify, the COVID-19 pandemic has brought again to the forefront active debates on the rights of the dead. It is a sad reality that in this pandemic, even after death, the dead are denied their dignity. Families of COVID-19 victims were denied permission to conduct the last rites of their relatives, bodies of COVID victims were covered in plastic bags and dumped in India's rivers. Bodies were half burnt, and proper burial was denied for many COVID-19 victims. Having denied a dignified death, the Indian judiciary stepped in and weaved cobwebs of protective orders, protecting and upholding the dignity of the dead. During this pandemic, the appellate courts in India were the ones to quickly take up the matter of rights of the dead by granting the dead autonomous fundamental rights. While the Indian Courts created a new jurisprudence for granting rights to the dead, the International human rights framework is yet to lay down a normative order guaranteeing protection and dignity for the dead. For the post-pandemic era, it is argued that the dignity of the dead must not be yet another preambular rhetoric, but must be an autonomous protected right. This paper therefore argues that the Indian judiciary has adopted a truly pro-dignity position for the dead in this pandemic by upholding the legal personality of the dead as a holder of rights. For justifying this argument, a critical, comparative analysis and evaluation of jurisprudence of Indian Courts on rights of the dead, specifically during this pandemic will be undertaken. After conducting a detailed analysis, this paper will seek to answer how far the Indian judicial system can fill the gaps in the existing international human rights framework for legally protecting the dignity of the dead. Keyword: Dignity, Rights, Judiciary, International, pandemic



Peer-Tutoring Programme in a Private Higher Education Institution in Malaysia: Challenges in the Pandemic Era by Eng Siang Tay, Clement Zhi Kang Hii, See Keng Ng and Chee Ying Kuek


Peer-Tutoring Programme is an alternative strategy that enhances student learning in higher education institutions and it serves as a supplement to the traditional teaching and learning exercises. Past literature suggested that peers are more influential than instructors. The Programme promotes independent learning, develops learning skills and gives mutual benefits to the tutors and tutees in various aspects. The education landscape of the country has experienced a massive change under the Covid-19 pandemic. Digitalisation of higher education has become the new norm in education. In response to the implementation of the Movement Control Order (MCO), most classes have been converted to online mode. All parties struggle to adapt themselves due to the accelerating transformation in the education system. A law faculty in a Malaysian private higher education institution has introduced and implemented the idea of 'Peer-Tutoring Programme' since 2018. In this instance, the law faculty's Peer-Tutoring Programme is also subject to changes to face these challenges. This paper will highlight the challenges of the Peer-Tutoring Programme such as approachability and connectivity during the pandemic. Certain modifications have been made to ensure this Programme continues to help the students in their online learning environment. Students who are more IT-savvy play a more important and active role in administering the Peer-Tutoring Programme. These include the planning and implementation work with minimum supervision and guidance from the lecturers such as recruiting student tutors, providing training for tutors, enrolling students, publicising via social media and compiling teaching reports. This paper will also compare and contrast the model before and during the pandemic and make recommendations for the enhancement of the Peer-Tutoring Programme in the online learning environment with a hope to be adopted as a future reference for other faculties in any universities. (Keywords: peer- tutoring, legal education, online learning, transformation)



Indonesia Constitutional Court: The Guardians of Democracy in Pandemic Era by Khairil Azmin Mokhtar & Hani Adhani


General elections, which are carried out honestly, fairly, consistently and continuously, are efforts to maintain a democratic climate in every country. As a country that upholds democracy, Indonesia always strives to carry out general elections in an honest, fair, consistent and continuous manner every five years as mandated by the constitution. Now, at the time of the Covid-19 pandemic, Indonesia must carry out regional head elections, namely the election for governors in 9 provinces and elections for regents/mayors in 261 districts/cities. After the general election, candidates can file a dispute over the general election results to the Constitutional Court. The Constitutional Court will examine the case for general election disputes within 45 days after the case is registered. As a state institution that guards the constitution and democracy, the Constitutional Court tries its best to resolve general election disputes in the region in a different way and management from previous election dispute cases due to the Covid-19 pandemic. The Constitutional Court seeks to carry out case admissions management and trial management using ICT technology so that parties who will file cases for general election disputes do not need to come to the Mahkamah Konstitusi Building in Jakarta. In addition, the trial is also conducted online so that people from all regions of Indonesia do not need to come to Jakarta to attend the trial. The management of case admissions and trial management using ICT technology carried out by the Constitutional Court has proven to be effective in minimizing the gathering of people so that the Constitutional Court does not become a cluster of coronavirus transmission. In this paper, the author will describe how the strategy and management of the Constitutional Court in handling general election dispute cases to regions during the pandemic period while maintaining the independence and impartiality of the Constitutional Court institutions.



Assessing the effectiveness of the Malaysian Regulatory Framework in dealing with the Covid-19 Pandemic by Harpajan Singh, Syarifah Mastura S A Bakar, Abidah Saad & Sukjeet Kaur


In the year 2020, the world was faced with a pandemic on a scale not seen in modern times. The Covid-19 pandemic affected nations across the world and had a significant impact on all aspects of modern life. Nations sought to address it using various means with mixed results, some more successful and others not so. In Malaysia, the authorities relied mainly on regulatory measures to address the pandemic beginning with the various Movement Control Orders. This paper seeks to assess the effectiveness of such measures having regard to its impact on addressing the pandemic. This paper uses desk research and makes use of publicly available information on websites, online newspapers, government reports, books and journal articles. 



Right to Information and Right to be Forgotten in Cyberspace: Focusing on the Future of Minors in Malaysia by Suzanna Hadi & Nakeeran Kumar Kanthavel


The right to obtain information is an integral part for the development of a society. Article 19 of the Universal Declaration of Human Rights states that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 10 of the Malaysia Federal Constitution does not explicitly provides for such right. However, it was stated in the case of Sivarasa Rasiah v Badan Peguam Malaysia & Anor that "Article 10 contains certain express and, by interpretive implication, other specific freedoms… The right to be derived from the express protection is the right to receive information, which is equally guaranteed." The right to be forgotten, on the other hand, is based on the need of an individual to enjoy living his life, without being haunted by past actions or omissions. One of the concern is the appearance of such past actions in search engines, where it will remain accessible to those around him and the effect of such appearances to his future, especially if it had occurred when he was a minor. The right to be forgotten gives the individual the right to request the removal of his past from search engines, especially those in the country he resides in. However, other individuals of interest also has the right to gather information about him, for example for employment purposes, or merely to get acquainted with him. This paper will look into an individual's right to be forgotten as well as the right of another to obtain information about the said individual and how these two rights can co-exist with one another in the modernised world.



Formalities for the Valid Execution of Wills in Malaysia - Legal Challenges and Reforms in the Era of Pandemic by Gary Kit Min Ng, Francesca Nyuk Oi Chin, Joanne En Ling Lau & Eng Siang Tay


The world has seen a dramatic rise in cases of the novel coronavirus ("Covid-19"). Many countries have to undergo lockdowns or what is known in Malaysia as the Movement Control Order ("MCO"). People are required to follow the Standard Operating Procedures ("SOP") and limit their movements within the country, states or districts. This has ultimately posed many challenges to law and legal practice including to the Law of Succession. Under section 5 of the Malaysian Wills Act 1959, a will is only valid if formalities are strictly adhered to in the making of the will. Judges have no dispensing powers. The Malaysian Wills Act 1959 (Revised 1988) is based on the United Kingdom ("UK") Wills Act of 1837. Despite several amendments to the UK Wills Act throughout the years, the Malaysian laws on the area of formalities have not been amended. Following the Covid-19 outbreak, the United Kingdom amended its section 9 (on formalities that is governed by section 5 in Malaysia under the Malaysian Wills Act) through the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) (Order 2020) and expanded the meaning of "presence" to also include presence by way of video conferencing or other visual transmissions, since "presence" appears numerous times in the section and is one of the core elements for a will to be valid. However, no reforms have been made to the Malaysian laws. As a result of this, the laws of Malaysia strictly require that the will must be signed in the physical and mental presence of the witnesses and the witnesses must sign in the physical and mental presence of the testator. This may indeed pose a problem due to the restrictions on movement that has been imposed. Ultimately, this may either discourage people from making wills or may lead to wills that may be invalid due to failure to comply with formalities. This paper aims to discuss the problems with regards to the challenges faced in complying with the strict formalities necessary for the execution of a valid will in times of Covid-19. A comparative study will be done on different jurisdictions such as the UK and Australia, including whether there is a need to allow Judges some dispensing powers. The research methodology adopted is purely doctrinal legal research. Primary data such as statutory provisions and case laws from relevant selected jurisdictions will be analysed and compared. Relevant journal articles and other related secondary data will be reviewed, if any. This paper will consider the need for relaxation of such traditional compliance with formalities in executing a valid will in Malaysia in response to the challenges posed by Covid-19. Suggestions for reforms particularly to the area of formalities and alternative solutions to our Malaysian Wills Act 1959 (Revised 1988) will be made to adapt to the new norms. Keywords: Execution of Wills, Formalities, Presence, Witnesses, Reforms



Religious Perceptions on the Conception of Saviour Siblings in Malaysia by Chee Ying Kuek & Sharon Kaur Gurmukh Singh


The advancement of human reproductive technology has made it possible for parents with a child affected by a haematological disorder to select and bring into being, a prospective child who can act as a matched stem cell donor. This can be done through the use of preimplantation genetic diagnosis (PGD) coupled with Human Leukocyte Antigen (HLA) typing (PGD-HLA typing), or HLA tying as a standalone procedure, where a healthy embryo which is an HLA match to the existing sick sibling is chosen for implantation. The creation of such a sibling (saviour sibling) in this manner is normally taken as a last resort when there is no related or unrelated matched donor. While the conception of a saviour sibling may serve as a reliable and realistic treatment option for the ailing child, it also poses new moral questions that challenge a pluralistic society with different religions such as Malaysia. The development of ethically sound and appropriate local laws and policies should consider the views of religious communities. To this end, an exploration of the perceptions of a few religious scholars and representatives of the major religions professed and practised in Malaysia was undertaken by way of qualitative interviews. The religions selected for this study are Islam, Buddhism, Christianity and Hinduism. There was no consensus as to the acceptability of creating saviour siblings and a number of ethical grounds were forwarded to justify the positions which were held. The conception of saviour sibings appears to be acceptable to Islam and one school of thought of Buddhism when analysed from the perspective of the moral status of the embryo, the principles of avoidance of harm and saving of life. However, it did not appear to be acceptable by the Christian scholars and separate school of thought of Buddhism on the ground of the moral status of the embryo and sanctity of life. The representatives from the Hindu community recognised that it is morally problematic but it is based on the belief in karma (consequences in life caused by one's action) and the principle of avoidance of harm. The research on the religious perceptions towards the conception of saviour siblings in Malaysia is relatively scarce and this study represents an early contribution to the body of knowledge on this aspect.



Constitutional Oath of Judges: A comparison with Australia, UK, US, and India by Ashgar Ali Ali Mohamed, Chithra Latha Ramalingam & Muhamad Hassan Ahmad

 

Judicial independence is a universal principle and this is important because society will have the trust in the judiciary to ensure that all laws are meted out fairly and justly. This will also hold the legislature and executive to be accountable for their actions. Society has a right to demand that the judiciary is independently reflecting the doctrine of separation of powers. However, the ultimate salvation against arbitrary excesses by a government is dependent on the constitutional oath sworn in for judgeship. Justice Hamid Sultan aptly stated that the oath taken by every judge is to "preserve, protect and defend the constitution". The Guardian of the Constitution must uphold the peoples' fundamental law. To be representatives of the sovereign people, judges of ability and good character must be appointed. These honorable judges are the key to the prevention of abuses of power of a deviant institution that will result in social injustice. Therefore, in the words of Justice Hamid Sultan "Judicial Dynamism" must exist to preserve the rule of law for a healthy democracy. Hence, this paper explores constitutional oath of judges with reference to the practice in selected jurisdictions namely, Australia, UK, US and India.



Constitutional Supremacy, Rule of Law and the Supreme Policing Authority of Judiciary: Emergence of the Doctrine of Constitutional Oath by Ashgar Ali Ali Mohamed, Chithra Latha Ramalingam & Muhamad Hassan Ahmad


Malaysian legal system has often been mistakenly perceived as following the parliamentary supremacy similar to the United Kingdom (UK). In fact, Malaysia practices constitutional supremacy which is fundamentally different in nature from the UK's legal system. The Federal Constitution of Malaysia obliges the judges of the superior courts to take "oath of office and allegiance" before holding the office. On the basis of this, some commentators developed the "Doctrine of Constitutional Oath" in which the judiciary is entrusted with the supreme policing authority under the Federal Constitution in upholding rule of law. Accordingly, this article aims at evaluating the development and feasibility of the doctrine of constitutional oath in the Malaysian legal system. It is submitted that this doctrine suited well within the Malaysian legal system which practices constitutional supremacy. This theory has been incorporated in numerous judgements made by various superior courts and, so far, has not been overruled or disapproved by the Malaysian apex court. Besides, it receives numerous positive reviews from both local and foreign prominent constitutional law experts.



Apex Court Flip Flop on Basic Structure Doctrine:  A Review of Maria Chin v Director General of Immigration [2021] 1 MLJ 750 by Ashgar Ali Ali Mohamed, Chithra Latha Ramalingam & Muhamad Hassan Ahmad

 

Malaysia upholds the constitutional supremacy as per article 4(1) of Federal Constitution. The Constitution provides for the three main organs of the government namely, the executive, legislature and the judiciary pursuant to Articles 39, 44 and 121, respectively. The doctrine of separation of power serves as a check against the abuse of power. The greatest challenge in any democratic state is to balance the might of the state with the rights of citizens. The Constitution, article 124 deals with the oath of office and allegiance for the judiciary namely, to preserve, protect and defend the Constitution. Further, the doctrine of basic structure which has gained widespread acceptance in India since the early 1970's, dictates that the Constitution has certain basic features that cannot be altered or destroyed through amendments by the Parliament and the judiciary is empowered to strike down an amendment to the constitution and Acts enacted by the Parliament which conflict with or seek to alter this basic structure of the Constitution. In Malaysia, initially this doctrine was rejected by the apex court in Loh Kooi Choon, Phang Chin Hock, and Kok Wah Kuan because of differences in the making of the Indian and the Malaysia Constitution. The recent Federal Court's decision in Sivarasa Rasiah, Semenyih Jaya Sdn Bhd, Indira Gandhi a/p Mutho and Alma Nudo Atenza however have recognised this doctrine. Unfortunately, the more recent Federal Court's majority decision in Maria Chin Abdullah's case had rejected the basic structure principle. Therefore, by following the established principle of the stare decisis that when there are conflicting decisions of the Federal Court, the subsequent Federal Court decision should prevail over the earlier Federal Court decision. Be that as it may, it would be worthwhile to review the majority and minority's opinion in Maria Chin Abdullah's case in relation to this doctrine and also to revisit the horizontal application of the stare decisis doctrine with a view of redressing the indeterminacy of the Federal Court in relation to this doctrine.



HEALTH VIS-À-VIS LAWS DURING COVID PERIOD: GLIMPSES FROM INDIA by Ved Pal Singh


Judicial and parliamentary checks and balances are to be strengthened in order to avoid use and misuse of power vested with Government machinery. It is also pertinent to mention here that limitations imposed need be removed and that various fundamental rights including freedom of peaceful assembly and association be restored when the public health emergency caused by COVID-19 ends. Being the voice of the citizens the media should play its role properly and being true citizens it's our duty to follow the guidelines in letter and spirit.


Covid-19 and The Right to Education: Leaving No Child behind  by Koh Ker Xuan


Through the lens of leaving no one behind, the core focus of the 2030 Sustainable Development agenda is to reach 'the furthest behind' first by paying special attention to those most in need and exposed to discrimination. However, indigenous groups, stateless people, migrants, refugees and persons with disabilities are often neglected and discriminated against, especially on their right to livelihood and right to access basic essential services such as healthcare and education. It is increasingly evident that in times of crisis, the marginalised communities will face greater marginalisation. The situation is particularly worse for the children in the marginalised communities. Challenges remain to ensure every child in Malaysia enjoys the right to education. Close to 1 million children faced multiple forms of discrimination in accessing education before the Covid-19 pandemic. While the pandemic persisted, more children's rights to access to education are 'paused' or 'taken away'. The learning inequalities are exacerbated and amplified due to the government's long-term lack of political will and commitment to remedying discrimination and inequalities in the education system, and its failure to ensure education is free and accessible on a non-discriminatory basis to every child in Malaysia. Despite the challenges in the pandemic, human rights law is clear that all young learners retain their right to education, and the government must protect the right to education, as well as respect for all other human rights. Education is the crucial link to sustainable development, it is even more important to the marginalised children as the lack of this right perpetuates the cycle of exclusion and marginalisation, causing those left behind to be left even further and the promise of Sustainable Development Goals will remain unrealised. Thus, the government must not continue to turn a blind eye towards the plight faced by the marginalised children and should ensure that all children, including the marginalised children could access to quality education on an equal basis. In this paper, we analyse how the current approach of the government has caused and worsened the discriminations faced by the marginalised children to access to education and how the achievement of the Sustainable Development Goals has been affected. By establishing a clear link between human rights and sustainable development in the aspect of the discrimination faced by the marginalised children in Malaysia on their right to access to quality education, we can promote a rights-based, inclusive and non-discriminatory framework to the equal access to education based on the premise that no one should be left behind.



Oddities in Contempt of Court by Dr A Vijayalakshmi


Contempt of court is an established area of law. Many aspects are clear, certain oddities have survived its long history. This presentation is intended to explore some of these oddities, typically from case law, which are not always easy to justify. Such issues may be incongruous with basic tenets of law and challenge traditional conceptions of how laws should apply. While contempt of court has been described as being integral, versatile, pervasive and necessary, perhaps certain aspects of it may also be described as odd.



Regulatory Dynamics of Corporate Laws and Risk for Professionals in India (Solicited Abstract) by Manvi Gupta & Pankaj Kumar Gupta


In the contemporary scenario, particularly after the pandemic, the regulation is undergoing dynamic changes in all parts of the world. Even though these regulation changes are essential to address the needs of business and society, coping with such frequent changes is extremely difficult and cumbersome for legal professionals. In India, corporate laws are changing fast, particularly the Companies Act, 2013, Income Tax Act, 1956, and the Securities and Exchange Board of India framework. It is observed that while some regulatory changes are effective from the date of notification, there are many changes that the corporate entities have to comply with from retrospective effect. These are challengeable and derogatory for the financial and operational health of companies. The legal professionals associated with the corporate entities as on-roll employees, counsel, and independent consultants suffer from these regulatory dynamics in many ways. These changes affect their professional competencies. The losses sustained by entities create questions on their credibility and pose criminal liability practicing as a professional. The impact of fast-changing regulations increases cost in several ways – reworking, updating and training, penalties, etc. Our survey of 389 legal professionals in listed companies reveals that professionals fear risk and loss of profession because of the regulatory dynamics. They believe that the changes in regulations are introduced with the consultation of relevant parties wherein the government works on a defined national agenda. There is a lack of proper training, a time lag in the issuance of operational guidelines, and sometimes self-conflicting rules. As such, various professional bodies are also in a fix on responding to the change in regulations suddenly. We suggest that the government agencies make some timeline for the frequency of changes in the statute (corporate law), make preannouncements, and adopt the standard procedure of seeking opinions on exposure drafts. We further argue that enhanced use of information technology and ease out the process of promulgating regulations at a fast rate and thus reduce the risk to professionals.



Right to Water: National and International Obligations by Marini Arumugam, Wilson Tay Tze Vern & Tamara Joan Duraisingam


The right to water is a right would be the first right if there were a hierarchy of rights. Water is the fundamental necessity of life that tops even the need for food. It is of paramount importance that each human being is provided with safe drinking water free from contamination of water supplies. The United Nations has reiterated and recognised the human right to water, an indispensable right and pre-requisite for the realisation of other human rights (General Comment No. 15 /Resolution 64/92). Every State has the responsibility to provide clean water to its citizens before anything else and yet heavy privatization of water management in Malaysia and around the world has resulted in the State passing on this responsibility to private corporations, perhaps at the expense of the citizens. In 2020, millions of households in Malaysia suffered extended water cuts, depriving Malaysians from access to clean water supply. In December 2020, United Nations Water (UN-Water), in response to the COVID-19 pandemic, reiterated the urgent need for access to clean water to ensure that the world population is able to come out of the pandemic safely as water is the first line of defense in a pandemic. As such, in a pandemic, the right to water is intwined with the right to health. Although the Federal Constitution of Malaysia would be the cornerstone law, there are several spectrums of law that deal with the control and protection of water sources. This paper aims to give an overview of the framework of different international legal instruments and national and state laws and regulations, as well as the Federal Constitution of Malaysia, relating to the right to water.


Incorporating Structured Experiential Learning in Legal Education in times of the COVID-19 pandemic by Puteri Sofia Amirnuddin, Jesrina Ann Xavier, Adeline Chin &  Matthew Philip

 

Purpose: The aim of this research paper is to share empirical evidence on the effectiveness of a structured experiential learning in the legal education in times of the COVID-19 pandemic Background of the study: The background of this study arises from the exchange of legal discourse amongst the legal practitioners between Nov – Dec 2020 with regards to the quality of law graduates. The concerns include the lack of knowledge amongst law graduates, lack of legal skills and readiness to practice law. These perceptions became highly relevant especially in times of the COVID-19 pandemic, when there is a limited number of internship positions being offered to law students. This is due to cost-cutting measures by legal firms and also in compliance to the social distancing restrictions in offices. Hence a pilot project; 'Legal Practice Experience' was developed between a law school based in Klang Valley and a law firm based in Kuala Lumpur, with the aim of supplementing law students' academic studies with practical exposure to real-life industry workings during the COVID-19 pandemic. Method: The respondents that participated in this research were 10 selected Year 2 law students from Taylor's University, and 10 mentors based in a law firm in Kuala Lumpur. These 10 students were selected to undertake the Legal Practice Experience (LPE) at a law firm in Desa Sri Hartamas, Kuala Lumpur for a period of 8 weeks in March 2021 and August 2021 semesters. This research uses the qualitative exploratory method, through semi-structured interviews and observation method. Using a non-random purposive sampling, the interview sessions took place with both the students and mentors. The participant observation method was deployed during the period of this LPE. Empirical evidence: The research found that the selected students embarking on structured legal practice experience perceived that the experiential learning in times of COVID-19 pandemic has sharpened their critical thinking skills, persuasive writing, persuasive argument, legal analysis and factual analysis. Based on the results of the survey, it is shown that experiential learning is effective in supplementing law students' academic studies with real-life legal skills that closely matches the expectations of the legal practitioners. Significance: This research is beneficial to law students, academicians, educational institutions, as well as legal practitioners as it contributes towards understanding the challenges of this evolving situation while finding solutions to cater to employers' expectations pertaining to the future skills of current law graduates. Keywords: Experiential learning, Legal Practice Experience, COVID-19 pandemic


To fish or not to fish? The Malaysian – Australian Perspective by Tamara Joan Duraisingam & Johanna Mahadevan


Malaysia is a country possessing a coast rich in biodiversity. This country is home to some of the largest tropical coral reefs that provide to the country's economy by attracting tourist from around the globe as well as providing to the fishing industry. As incomes rise, the demand for seafood rises as well and commercial fishers are able to leverage on these new and unprecedented circumstances. However, there is considerable debate surrounding the status of fisheries and its impact on the environment. The present study focuses on the effectiveness and impact the current legislation surrounding commercial and recreational marine fishing activities is having on the conservation of marine ecosystems as well as the protection of fish stock populations in Malaysia. Investigating the possible differences between legislations produced by Malaysia and Australia was a further aim of this study to identify areas where the Malaysian governing body may improve in its efforts of protecting both the fishing industry as well as the marine environment. To achieve these objectives the present legislations of both countries were initially compared. The paper then discusses the methods of regulation enforcement utilised by these two countries in achieving their respective legislative goals. A top down approach was applied when examining the best practices from jurisdictions with similar legal framework. Findings of this study revealed a lacking of assessment within the Malaysian fishery industry as well as low levels of regulation enforcement when compared to the Australian industry. The review within the study revealed geographical, economic and food security implications that are not faced by the Australian industry in comparison to Malaysia which also play a role to the unsustainable nature of the Malaysian fishing industry. Despite these challenges however, the conclusion of this study suggests that with increased legislation, enforcement, assessment and awareness Malaysia can achieve sustainable goals within its fishery industry that conserve ecosystems and marine fish stocks. Sustainable fishing will also lead to long term food production providing a major source of livelihood to the local citizenry.



The Doctrine of Strict Compliance in relation to Letters of Credit: Has there been a significant change in its application? by Rushmila bintay Rafique


Letter of credit (LC) is an international payment instrument that facilitates trade both in domestic and international sales. It is often called the "lifeblood of international commerce" and they are especially favored over other means of payment as the foreign buyer (applicant) and the seller (beneficiary) have no or brief history of cooperation. Commercial documentary letters of credit (LC) are governed by two fundamental principles, the doctrine of strict compliance and the autonomy principle. The strict compliance is a legal principle that entitles the bank to reject documents that do not strictly comply with the terms of LC. Viscount Sumner remarked that "there is no room for documents which are almost the same, or which will do just as well". (Equitable Trust Co. of New York v Dawson Partners Ltd [1927] 27 Ll L Rep 49. Even apparently insignificant discrepancies will mean the bank must not pay (Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1993] 1 Lloyd's Rep 236, [1999] 1 Lloyd's Rep 36. To determine whether or not the description of the goods in the documents complies with the credit, the court will not only look at the documents as a whole but will also look to see if there is any inconsistency between them (Midland Bank Ltd v Seymour [1955] 2 Lloyd's Rep 147). One reason for this rule was illustrated by the case JH Rayner & Co. Ltd v Hambro's Bank Ltd [1943] KB 37, banks cannot be expected to be able to distinguish between minor and material discrepancies. The problem with a strict compliance rule was that it meant a majority of documentary credit presentations were not compliant; the introduction to the UCP 600 noted that around 70 percent of documents were non-compliant on the first presentation. In 1933 the International Chamber of Commerce (ICC) took an initiative to codify standards and practices relating to commercial LCs through the publication of the first version of UCP which has been revised six times since their first inception. The objective of UCP was to develop a set of contractual rules that would ensure uniformity, with the purpose that practitioners would not have to deal with a plethora of contradictory national rules and regulations of different states. Once the UCP 600 was introduced, the courts allowed some tolerance by not requiring the mirror image compliance that is, the use of exactly the same words was not mandatory, only words used in one document should not be inconsistent with those used in another. These developments should not be pressed too far and be seen as an abrogation of the strict compliance rule. Certainly, they would not have changed the decision in the JH Rayner case. Yet, while they may ease the job of the banks, they may put them at risk of rejecting documents that comply or paying where the documents do not comply.



Post-Pandemic Product Liability Claims: Issues Arising From Third Party Claims for Sub-Standard Products by Sia Chin Chin & Jolyn Toh


The pandemic has changed consumer behaviour. Based on a recent survey, Malaysia has seen over 149% surge in online sales after the pandemic. In view of the exponential rise in this new phenomenon, there is a need for a legislation in Malaysia that addresses unfair contract terms. Even the main legislation that is in charge of governing all contract matters, Contracts Act 1950 is silent on unfair contract terms. Furthermore, the amendment to the Consumer Protection (Amendment) Act 2010, that was not an independent legislation that governs all contracts. It would mean that this only addresses unfair contract terms from the consumer contracts perspective whilst some language within the amendment particularly in section 24B, stated that the part should apply to all contracts. The phrase 'all contracts' can be confusing to point towards including business to business contracts, standard form contracts, commercial contracts and digital contracts. Whilst there are many piecemeal legislations that has been made, this is definitely not the solution to unfair terms. For some companies with stronger bargaining power, the imposition of unfair contract terms on the smaller companies is a common occurrence. This occurs as some of these stronger companies are middlemen for the business transaction. In order for a small business to take on the risk of unfair terms, companies with less bargaining power will usually relay product liability cost to the consumers, similar to a landslide effect. This would create inefficiency in the entire business transaction. With the introduction of a legislation that would address unfair contract terms, the landslide effect would be reduced in the transaction which will facilitate a more efficient system within the business world. This study will propose a framework in providing Small and Medium Enterprises (SME) with sufficient legislative protection, particularly on product liabilities and product warranties by referencing Singapore and Australia which already have an existing legislative framework in place in governing unfair contract terms. Although Malaysia has several amendments in place, there is much room for improvement in the legislative environment to safeguard the rights of SMEs.


Protection of the rights of Refugees in Malaysia during the COVID-19 pandemic by Lai Mun Onn & Cynthia Silva

Malaysia is not a signatory to the The Convention Relating to The Status of Refugees (the 1951 Refugee Convention) nor its 1967 Protocol, which gives the Convention's applicability a universal nature. As such, there are no existing local legislations which recognise the legal status of refugees in Malaysia. Under section 6(3)(a) of the Immigration Act 1959/63, refugees are deemed undocumented immigrants as they do not possess a valid permit or pass to live in Malaysia. Their illegal status in Malaysia thus results in a lack of access to public healthcare, education and the legal right to work. By the end of October 2020, there were 178,450 asylum seekers and urban refugees registered with the United Nations High Commissioner for Refugees in Malaysia. This paper will seek to answer the following questions:- 1. What is Malaysia's stance on refugees and their legal status? 2. What are the effects of Malaysia's non-recognition of refugees' legal status? 3. What are some proposed reforms with regards to refugee rights in Malaysia? In order to answer the said questions, this paper will first look generally at the International Human Rights Law that deals with the rights of refugees. Then the situation in Malaysia will be examined. The paper will deal with what it means for the refugees in Malaysia since Malaysia is not a party to the 1951 Refugee Convention and its Protocol. The paper will also look at news reports to see how refugees are treated, especially during this COVID-19 pandemic. This paper will then look at some of the arguments for and against recognising the legal status of refugees in Malaysia. Parallels will be drawn between Malaysia, Canada and the United States of America. This paper will then make the finding that the rights of refugees are insufficiently protected in Malaysia. As such, the proposed reform will be for Malaysia to be a party to the 1951 Refugee Convention and its Protocol.

 

Mental Heath : Under the Shadow of Covid 19 by Prof Anasuya Anasuya Jegathevi Jegathesan 

We look at how the pandemic has to date shifted and changed individuals, families and even communities as we have faced wave after wave of lockdowns. We look at the how this will impact and potentially shape the future and how it will play out as we go back to normal interactions.

How COVID-19 affected cross border transactions and law firm practice:  New style of documentation and transaction management and law firm operations in the new era by Mr. Mangyo Kinoshita

'In the session, Mr. Mangyo Kinoshita will share how documentation and transaction management changed in COVID situations. Although less cross border deals were seen in 2020, but many deals are coming back this year in 2021 and people are more used to tools like ZOOM, virtual meetings, machine translations and AI reviews of dataroom materials in M&A transactions. There are more changes being observed in definitions of "Material Adverse Changes" or "Material Adverse Effect" to reflect the pandemic and a few other provisions in contracts, but it is expected that more changes are occurring in the deal process and transaction management because all of the attorneys are expected to work remotely. Also, COVID had strong influence on how attorneys work. Many corporate lawyers in Japan and the US charge their fees based on hours, and attorneys who work long hours were considered as good attorneys and promoted quickly. It is timely to start question such tradition and think how the wellness of our lawyers can be achieved. Eventhough Even though his legal firm is still still trying, Mr. Kinoshita would like to share some of the trials which were done during the past 18 months and how their lives has changed from this unique approach and experience.'

"What just happened to law and development?" by Professor Andrew James Harding

This talk is frankly speculative. It poses a question that may be premature, as the pandemic is by no means over. It attempts to place our current situation in the context of the history of law and development, which has been through 'inaugural', 'critical', revivalist', and 'pluralist' periods (called 'moments' by Scott Newton). I argue that in 2020 the pluralist period came to an abrupt close. But if so, what will replace it, or conceivably has already replaced it? And how do the Sustainable Development Goals of 2015 affect our development direction, or are they affected by it? 

My conclusion is that development needs a new start, and that we need to move strongly and concertedly towards a global post-Covid vision of development that is based not on GDP-growth, but on social cohesion, international solidarity, and long-term sustainability. The rule of law, I argue, is fundamental to this vision, and needs greater commitment and developmental operativity.  


Processing human behavior – a primer for understanding self & others by Dr Paul Jambunathan

The desire to understand human behavior has always been a quest by all levels of society. However, the need to comprehend human behavioural processes is ever increasing, especially when survival is threatened and the integrated individual is discombobulated. The ability to understand human behavior is not the privilege of solely mental health professionals. It is a necessity for anyone who consciously interacts with others and with the aim of interpersonal effectiveness. Simplistic 'cause & effect' type models of behavior that separate mind and body are outdated and dangerously naive. These kinds of models can be misleading and antithetic to holistic care of individuals and communities.  Constantly evolving multi-factorial models are necessary for anyone interested in understanding individual behavioral responses. Although apparently reductionistic, the Cox & MacKay transactional model of the human response to stress is perhaps the best template to work with towards intersubjective competency. In keeping with the WHO definition of health, this model is presented in the context of the human life span. It is a dynamic model which is essential, not just for interventional design, but more importantly for the development and maintenance of mental hygiene. This primer provides a fundamental and functional model towards effective living


"Walking in the shoes of a Commercial Litigator by Mr. Mavin Thillainathan

"The corporate and commercial litigation environment around the world is becoming increasingly difficult to navigate. Expanding businesses, ever changing regulatory and compliance requirements and complex cross-border transactions are among the drivers for this change. Because there are businesses involved in corporate and commercial litigation, the issues involved also tend to be more complex or more specialised compared to traditional civil disputes. As the market changes and evolves, legal practitioners in the commercial litigation field must also adapt. If you are a law student or a fresh graduate seeking to venturing into this area, you may ask yourself, what are the nuances that distinguish commercial disputes from the 'run of the mill' civil matters? What should one equip themselves with to be a leader in this area of practice? How and when should you begin to brand yourself as a specialist lawyer? Whilst experience is paramount, there are many skills that can and should be developed at a grassroots level to position yourself to be a leader at the Commercial Bar in the years to come. Join Mavin Thillainathan in this interactive session where he will draw on his experience and share his take on becoming a commercial litigator."


The Future of Law through Legal Innovation & Technology by Ms. Santhi Latha

The legal industry in Malaysia has seen an increasing uptake of technology-based solutions, often spearheaded by the Judiciary. However, for innovation to come to the fore, it is more than the ability to introduce some new tech-tool to an organisation. Legal innovation is about the culture of change; the commitment to empowering and engaging communities within the legal industry; adopting and sustaining the use of relevant technology; and using this to save cost and time, and work more efficiently from anywhere. 

While it is evident that many Malaysian law firms have not traditionally been eager / willing to make the shift, it is clear that the journey has begun and the question now is whether to remain a hostage to traditional mindsets or to make a commitment to evolve into a 21st century law firm. 

The focus of the discussion will be on the current and potential impact that legaltech has on stakeholders within the legal industry.


How to enter the legal field confidently by Ms. Larissa Ann Louis 

As you enter pupillage as a fresh graduate, you would require certain skills and knowledge that might not have been taught in law school. These must be learned along the journey. Here, you will have the opportunity to learn some of these valuable secrets to be the best version of yourself in the legal world from Ms.Larissa Ann. Plus, the first 2 years are most crucial and should not be taken lightly. Hence, this session will equip you to be best prepared. Questions like, How do you pick the right firm to grow as a lawyer? Does the size of the firm matter?  What do you need to lookout for in a master? What should you be exposed to during pupillage? What then after pupillage? - will be answered.






This Conference Is Accredited By The Malaysian Bar Council