Greetings

DUE PROCESS

A fundamental requirement of due process is the "...opportunity to be heard..."It is an opportunity  which must be granted at a meaningful  time and in a meaningful way..."

Potter Steward, Armstrong v  Manzo 380 U.S 545,552 (1965)

2015 1 MLJ

DATUK SERI KHALID  BIN ABU BAKAR & ORS V N INDRA  ( THE ADMINISTRATOR OF THE OF THE ESTATE AND DEPENDANT OF KUGAN A/L ANATHAN , DECEASED) 

Police- Duties of Police   Breach of statutory duties - Detainee beaten  to death by policemen whilst in  detention  - Abuse of remand  warrant - attempt to cover up incident Vicarious liability - whether tortfeasor and superior officers liable for deceased death

Held:- where there is a breach of a constitutional  right  by a public authority, S8 (2) of the Civil Law Act  does not apply and the courts cannot be barred from awarding exemplary damages. Section 8 of the CLA ONLY applies to private torts in so far as the prohibition of awarding exemplary damages.  This was an appropriate case to award exemplary damages.

Writers opinion= Courts award exemplary compensation when on the facts before the Court, the actions of the offender are so reprehensible with a conscious disregard for the rights of another. The basis of this reasoning is that, it it to deter others from  engaging  in a similar conduct.

1st Amendment ( US Constitution)

Congress shall make no law respecting an establishment of religion, or prohibiting the free excercise thereof , or abridging the   freedom of speech, or of the press, or the right of the people peacebly to assemble, and to petition the Goverment  for a redress of grievances.

WELCOME TO UM

Setiauusaha Suruhanjaya Pasukan Polis v Cheah Yen Kee [2016]2 2 CLJ 791

Judicial Review- Dismissal of Police Officer

 Held : It is a principle of  law based on established judicial precedent that where in a situation where a public decision making body takes into account extraneous factors behind the backs of  the party aggrieved by the decision, the decision of that public authority will be rendered unlawful for being in breach  of the principles of natural justice .......procedurally unfair.

1932- MLJ -1 at page 5

 This is a very old case and much reliance was placed on English and Indian authorities,

CHEW CHENG SWEE V CHAN CHYE  NEO

The only point argued before us was  that the proceedings were in their nature civil and not criminal and that that therefore no appeal lies from the Order of 8th September 1931 under Chapter XXVIII of the CPC.

Held:- There is ample authority in India and in England that maintenance proceedings though criminal in form are really civil matters. [ tokee Bibee v Abdool Khan ILR 5 Calcutta at p. 536 at page 542] 

LEGAL REASONING AND LEGAL WRITING

 

 

Language is the lawyers scalpel.If he cannot use it skillfully, he is apt to butcher his suffering clients case

LEGAL REASONING  AND LEGAL  WRITING
Richard K. Neumann, Jr. Professor at Law.

[2009] 5 AMR 519

exemplary compensation- pampasan teladan 

THANGASAMY BROWN- [2009] 5 AMR 519

Thangasamy  Brown a/l DN Gnanayutham v Pelabuhan Tanjung Pelepas Sdn Bhd & Anor 

Labour Law- Held:- Having concluded that the appellant was engaged for a fixed term of six months and  that the contract would be terminated by effluxion of time on December 31, 2000 there was no question of reinstatement but only compensation to be awarded by the Industrial Court for premature termination arising from the constructive dismissal which occurred on September 25 ,2000.

LTPAHBPP v UTRA BADI K PERUMAL [2000] 3 CLJ 224,239 (CA)

Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi K Perumal
Gopal Sri Ram JCA stated:

" When a person is deprived  of his reputation, it would  in my judgment amount to a deprivation  of life within Art 5(1) of the Federal Constitution.The right to reputation is part and parcel of the human dignity. And it is the fundamental right of every person within the shores of  Malaysia to live with common human dignity."

Adrian Joseph-2005 2 LNS (Award No 1904 of 2005)

In the case of HLB Bhd v Adrian D'cruz the Industrial Court stated inter alia, that the Malaysian society does not tolerate sexual harassment. If a person sexually harasses another person at a workplace , that person can expect instant  dismissal even if that person has had a good track record. 

Tanda Tanda Hari Khiamat............

RULES OF THE COURT 2012

The Rules of the High Court 1980 (P.U.(A) 50 /1980 and the Subordinate Court Rules (P.U.(A)328/80) have been repealed by the  Rules of Court 2012 (P.U.(A) 205/2012. The Rules of Court 2012 came into effect on 1.8.2012.

The Rules of Court are not retrospective in effect. All pending actions filed prior to 1.8.2012 are not retrospective in effect. All pending actions filed prior to 1.8.2012 shall not be affected by the new Rules.

Blessed Quietness

Its holiday time and all the students have disappeared.

Thats means no phone calls goes off and no students talking loudly in the library!

Mahkamah Rayuan- Putrajaya

A THOUGHT FOR THE DAY

EX DEBITO JUSTITIAE DEFINITION

A matter ex debito justiciae is one which a litigant is entitled merely upon the asking for it; as opposed to something which may be a matter of judicial discretion or determination.


The above application is usually related to set aside a Judgment In Default which was entered against the Defendants by the Plaintiffs. This is a tricky area. Some Defendants will deliberately evade service of the Summons and when Judgment is entered against them, only then will they show their faces and claim then the Judgment was not entered properly and  start quoting " ex debito justiciae - that  they have the right to set aside the Judgment.

FATIMA IS ADMITTED TO THE BAR

On the 14th of May, I  moved the call of Puan Fatima, chambering student in the law firm of  my learned friend-Mr.James. A Master is not allowed to move the call of his own student. But he is given the honour to robe  the petitioner.Cameras are not allowed inside the Court. But the caution said nothing about cameras outside. So I captured this scene right after 13 new lawyers were admitted to the Bar.

Congratulations- Peguam Fatima!!! Well Done!!

MAHKAMAH TINGGI KOTA KINABALU