Further Deferring the Sarawak State Elections

Further Deferring the Sarawak State Elections

Constitutionally, unless sooner dissolved, state legislative assemblies will be dissolved five years from its first sitting.[1]

Since the Sarawak State Legislative Assembly had its first sitting on 7th June 2016,[2] the state legislative assembly should have been dissolved (at the latest) by June 2021 and state elections be called within 60 days from the date of the dissolution.[3]

As a result of the nationwide Proclamation of Emergency issued on 11th January 2021[4] and the Emergency (Essential Powers) Ordinance 2021, the “provisions relating to an election for the election to a State Legislative Assembly …, Constitution of any State and any State Law [has] effect.”[5]

This means that the constitutional necessity for the Sarawak state elections to be held is temporarily suspended[6] until either the Emergency is no longer in force or the Yang di-Pertuan Agong sets a state election date after consultation with the Yang di-Pertua Negeri of Sarawak.[7]

At the present moment, the Emergency is scheduled to cease after 1st August 2021[8] and the Malay Rulers have stated that “there is no necessity to place the country under a state of emergency after Aug 1, 2021.”[9]

Tan Sri Datuk Amar Dr. James Jemut Masing, the Deputy Chief Minister of Sarawak, has voiced his concerns that the Sarawak state elections have to be conducted once the Emergency comes to an end.[10]

At this juncture, such concerns are perfectly valid as the Sabah state elections had catastrophic effects on COVID-19 cases in the state.

As admitted by Tan Sri Dato Seri Haji Mahiaddin Bin Haji Md Yassin, the current Prime Minister of Malaysia,[11] and supported by researches which have been conducted,[12] the Sabah state elections resulted in a third wave of COVID-19 infections in the country.

One option to further defer the Sarawak state elections would be by way of a statewide Proclamation of Emergency.

If what happened in Sabah were projected/predicted to happen to Sarawak as a result of the Sarawak state elections, this would be a “grave emergency … whereby the security, or the economic life, or public order in … [Sarawak] is threatened.”[13]

Precedents for a statewide Proclamation of Emergency exist. In the past, statewide Emergencies were declared in Sarawak[14] and in Kelantan[15] due to political instability.

Prior to the nationwide Emergency, the Yang di-Pertuan Agong also issued a Proclamation of Emergency over the parliamentary constituency of Batu Sapi resulting in a postponement of a by-election due to a casual vacancy.[16]

As of 21st June 2021, only 29.89% of the population of Sarawak has been vaccinated.[17]

A further Emergency in Sarawak would enable the health authorities to continue their vaccination efforts and potentially achieve herd immunity (or full vaccination)[18] before the Sarawak state elections are held.

The Election Commission would also be able to use the time to refine its standard operating procedures for elections conducted in the midst of the pandemic.

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Admitting Further/Fresh Evidence: The ‘Important Influence’ Test or the ‘Determining Influence’ Test?

In the past, I have argued that the English Court of Appeal decision in “[Ladd v Marshall [1954] 3 All ER 745] is redundant (at least in relation to introduction/admission of fresh/further evidence in the Court of Appeal and below) in light of the relevant legal provisions which have been introduced vis-a-vis the introduction/admission of fresh/further evidence.”[1]

Amongst others, Rule 7(3A) of the Rules of the Court of Appeal 1994 and Order 55 Rule 7 of the Rules of Court 2012[2] provides that new evidence shall not be admitted unless “the new evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of” the High Court or the subordinate court as the case may be [“Determining Influence”].

Meanwhile in Ladd v Marshall [1954] 3 All ER 745, “the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive”[3] (“Important Influence”).

The Determining Influence requirement clearly calls for a higher threshold to be met compared to the Important Influence requirement.

A piece of new evidence can have an important influence but not necessarily have a determining influence and the legal provisions which have been introduced, require the latter.

Unfortunately, some subsequent Court of Appeals and High Courts have incorrectly applied the Important Influence requirement rather than the Determining Influence requirement thereby muddying Malaysian jurisprudence on the admission of fresh/further evidence in the Court of Appeal and below.

Court of Appeal

Examples include:

i. Dato’ Ahmad Johari bin Tun Abdul Razak v A Santamil Selvi a/p Alau Malay @ Anna Malay (administratix for the estate of Balasubramaniam a/l Perumal, deceased) & Ors and other appeals [2020] 6 MLJ 133;[4]

ii. Ho Min Hao & Anor v Ho Yee Chin & Anor [2017] MLJU 06;[5]

iii. Ting Sieh Chung @ Ting Sie Chung v Hock Peng Realty Sdn Bhd [2016] 5 MLJ 342;[6]

iv. Datuk Seri Panglima Mohd Sari bin Datuk Hj Nuar v Vee Seng Development Sdn Bhd & Ors [2009] 6 MLJ 643;[7] and

v. Mid Valley City Sdn Bhd & Anor v Arkitek Tenggara Sdn Bhd [2003] 1 MLJ 66[8]

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Are Constitutional Amendments Required for Virtual Parliamentary Sittings?

Datuk Azhar bin Azizan @ Harun (“Datuk Azhar”), the Speaker of the House of Representatives (“Dewan Rakyat”), in an interview with Astro Awani, contended that “… [his] legal advisors are of the opinion that the Federal Constitution need[s] to be amended to enable virtual sitting[s]”.[1]

Datuk Azhar’s legal advisors hold to such a position, inter alia, for the following reasons:

i. “The current Constitution say that those those who are not present in the House cannot vote”[2] (“Presence-to-Vote Argument”); and

ii. “Every time His Majesty the King summons Parliament, His Majesty will issue a Proclamation and that Proclamation will be gazetted. And the Proclamation will say the House is hereby summoned to sit from what date to what date … from what time to what time, and thirdly … venue, and the venue is the House of Parliament. It is physical.”[3] (“Location-in-Proclamation Argument”).

Presence-to-Vote Argument

The Presence-to-Vote Argument is based on Article 62(5) of the Federal Constitution which provides that, “Members absent from a House shall not be allowed to vote.”

The provision, however, does not necessarily require Members of Parliament to be physically present in a parliamentary sitting.

In a virtual parliamentary sitting, the phrase “Members absent from a House” can be construed to mean Members of Parliament who fail to attend/are not attending the virtual parliamentary sitting.

Such Members should and would, most definitely, not be allowed to vote.

In view of this, there is no constitutional necessity for both Houses of Parliament to meet in the Parliament building and a virtual parliamentary sitting can be held in the absence of a constitutional amendment.

Location-in-Proclamation Argument

Datuk Azhar is correct in pointing out that a gazetted proclamation regarding a parliamentary sitting usually states the location of the said parliamentary sitting.

For example, the Yang di-Pertuan Agong (“YDPA”)’s Proclamation on 22nd February 2018 [P. U (A) 52/2018] states that:

“… the First Meeting of the Sixth Session of the Thirteenth Parliament of Malaysia, [will] be held in the Parliament House in Kuala Lumpur, the Federal Capital.”[4]

However, it is important to note that the Federal Constitution does not require the YDPA to appoint the location of a parliamentary sitting.

As such, the Location-in-Proclamation Argument does not hold water and no constitutional amendment is necessary to enable virtual parliamentary sittings to be held.

The gazetted proclamation for a virtual parliamentary sitting can, for example:

i. state that the parliamentary sitting will be “held virtually”;

ii. state that the parliamentary sitting will be held “throughout Malaysia”; or

iii. be silent on the location of the parliamentary sitting.

On a side note, the Standing Orders of the Dewan Rakyat (“Standing Orders”) require the place of the first sitting of the Dewan Rakyat of each Session to be stipulated by the YDPA.[5]

As proposed above, the “place” for the parliamentary sitting can be “virtual” and/or “throughout Malaysia.”

In  any event, the Standing Orders are not constitutional provisions. Rather, they are procedures created by the Dewan Rakyat pursuant to Article 62(1) of the Federal Constitution to regulate its own procedures.

As I have argued in the past, “any non-compliance with or breach of the Standing Orders could possibly be dealt with (read: regularised or waived) by the Dewan Rakyat.”[6]

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A Common Error in Consolidation Applications in the High Court & Subordinate Courts

Applications to consolidate multiple suits are filed, amongst others, to “save cost, time and effort, and to make the conduct of several actions more convenient by treating them as one action.”[1]

Consolidation applications in the High Court and Subordinate Courts are governed by Order 4 of the Rules of Court 2012.

Order 4 Rule 1(2) and (3) of the Rules of Court 2012 provides the following:

“(2) An order for consolidation shall be made in Form 1 and shall direct that the cause or matter in which the application is made shall be carried on as or under such other cause or matter and that the title of such other cause or matter be amended by adding thereto the title of the cause or matter in which the application is made.

(3) Upon such order being made, the file of the cause or matter in which the application is made shall be transferred to and added to the file of such other cause or matter, and the copy of the order shall be left in place of the file so transferred, and a memorandum of the transfer shall be entered in the cause book against the cause or matter so consolidated.” (Emphasis mine)

Case law reveals that consolidation applications in the High Court and Subordinate Courts have been filed in:

i. The suit intended to be the main suit – for example, see Ahmad Amryn bin Abd Malek & Ors v Bursa Malaysia Securities Berhad [2020] MLJU 1576,[2] Five Star Heritage Sdn Bhd v Nai Ninn Sararaksh & Anor [2017] MLJU 1666,[3] and Sarawak Securities Sdn. Bhd. v Gerard Ding Sing Dac & Ors [2000] MLJU 403;[4] and

ii. The suit intended to be consolidated into the main suit – for example, see Selinsing Mining Sdn Bhd v Selinsing Gold Mine Manager Sdn Bhd & Ors [2016] MLJU 1201,[5] Ng Joo Soon @ Nga Ju Soon v Devechem Holdings (M) Sdn Bhd And Ors [2010] MLJU 1854.[6]

The former approach, however, is incorrect and is a common error.

The filing a consolidation application in the suit intended to be the main suit, is contrary to the wording of Order 4 Rule 1(2) and (3) of the Rules of Court 2012.

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Accrual of Cause of Action for Liquidated Damages in Housing Development Contracts of Sale

Section 24 of the Housing Development (Control and Licensing) Act 1966 [“HDA 1966”] empowers the Minister of Housing and Local Government to make regulations for the purpose of carrying into effect the provisions of the HDA 1966.

Pursuant to Section 24 of the HDA 1966, the Minister introduced the Housing Development (Control and Licensing) Regulations 1989 [“HDR 1989”] which came into force on 1st April 1989.

Clause 22(3) of Schedule G to the HDR 1989 states:

“For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under this clause shall accrue on the date the Purchaser takes vacant possession of the said Building.” (underline mine)

Clause 25(3) of Schedule H to the HDR 1989 provides the following:

“For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under this clause shall accrue on the date the Purchaser takes vacant possession of the said Parcel.” (underline mine)

Both clauses were first introduced by way of the Housing Developers (Control and Licensing) (Amendment) Regulations 2002 [PU(A) 473/2002].[1] Subsequently, when the Housing Developers (Control and Licensing) (Amendment) Regulations 2007 [PU(A) 395/2007] was introduced, both clauses remained in Schedules G and H of the HDR 1989 respectively.

The Minister’s intention in introducing Clause 22(3) of Schedule G and/or Clause 25(3) of Schedule H to the HDR 1989 may have been noble, namely to prevent limitation from setting in[2] and barring claims for liquidated damages from purchasers.

However, a plain reading of both clauses results in an undesirable scenario whereby purchasers are unable to bring a civil suit against the developer for liquidated damages until and unless they have received vacant possession.

Assuming a developer is x years late and vacant possession has not yet been delivered to the purchasers, a civil suit by a purchaser against the developer would be legally premature and could possibly be struck out e.g. for lack of a reasonable cause of action.

Unscrupulous developers would be better off not completing the housing development rather than completing it late.

This would undoubtedly defeat the intention of Parliament (in relation to the HDA 1966) and the Minister (in relation to the HDR 1989) in enacting such social legislation for the protection of the purchasers.[3]

Some of the options considered to avoid the above undesirable scenario include the parties’ modification, sidestepping the clauses, and the controller’s modification.

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