Illegitimate Code

Withdrawing Bills

According to the news report that said inter alia “The Election Offences Amendment Bill passed in Parliament in April will be withdrawn after meeting with resistance from lawmakers on both sides of the political divide.”

This interested me as a Law student because I was interested in figuring out the mechanism in which a Law that has been passed by the Dewan Rakyat (House of Representatives) is to be aborted. I already know from class that the Dewan Negara (Senate) has very limited powers in rejecting or vetoing bills originating from the lower house.

Article 68 of the Consti is very clear about the types of bills that can be vetoed by the Senate (essentially, amendments to the Consti) and the types of bills that do not even need Senate approval (essentially, money bills). For everything else, the default power that the Senate has is only in delaying the bill by suggesting amendments for consideration, which can incidentally be ignored by the lower house.

Accordingly, the Senate has absolutely no powers to reject the amendments to the Election Offences Amendment Bill. The question the becomes, how does our government plan to withdraw the bill?

The news article is light on details but our Consti very clearly states in Article 66(3) that:

When a Bill has been passed by the House in which it originated it shall be sent to the other House; and it shall be presented to the YDPA for his asssent when it has been passed by the other House…

Oh my goodness.

Any law student can tell you what shall means in the Law. It means that there is no choice or discretion allowed. The Bill must be introduced to the other House. Once introduced in the other House, they’re then bound by A.68 and they will not have the power to destroy the Bill, but merely to delay it.

So, I’m not sure how our de-facto Law Minister plans to work around the Consti by aborting the process. I hope to be schooled in how such a thing can possibly happen within the confines of our dearest Consti.

For the avoidance of doubt, I am totally opposed to the matters being introduced by the amendment bill. But the proper way to do it would be to send the bill to the Senate, have them disagree to it, then it will be sent back to the lower house, where it will be directed to be not sent to the YDPA for his assent.

Islamic Divorce

We covered a lot of topics in class today, divorce, legitimacy, custody and inheritance. This blog entry is only about divorce though, because I find it interesting, especially since there are some peculiarities about the Law in Malaysia when it comes to annulment of marriages.

First, there is the standard talaq that is initiated by the husband. There are several categories of it but essentially: talaq raj’i, talaq bain sughra, and talaq bain kubra.

Talaq Raj’i is more a form of separation than an annulment, which is governed by S.51 of the Act. Essentially, the couple can choose to revoke their divorce, at any time, during the cleansing period Iddah of about 3 months. This is the lightest form of divorce with the least consequence.

Talaq Bain Sughra is a real divorce, which is governed by the same S.51 of the Act. In this case, the divorce cannot be revoked but the couple can choose to re-marry again, after the Iddah period has passed. In my opinion, this is a real divorce in the true sense of the word.

Talaq Bain Kubra is a final divorce, which is governed by the same S.51 and S.14 of the Act. In this case, the divorce cannot be revoked and the couple cannot choose to re-marry again, even after the Iddah period. This divorce is final and binding. They can only re-marry after the wife re-marries and re-divorces someone else first.

Also, the number of times a couple divorces is also considered. If a couple is divorced three times (talaq tiga), the divorce is considered final – of the last category. This is unlikely to happen in real-life as most cases of talaq tiga are done at a go, usually in a fit of anger.

Next, there is the issue of method of divorce. The most simple, obvious and direct method is Talaq Sarih which is basically the husband telling the wife in the face that he divorces her. The second method, which is fast gaining popularity is Talaq Kinayah which is an indirect method such as divorce via SMS, or through the use of ambiguous words.

Regardless of methodology and category of divorce, a marriage can only be annulled in the Court. This is governed by S.124 of the Act that does not allow any form of divorce outside of the Courts. A grace period of 7-days is give to the couple to report any divorce to the Courts and this is governed by S.55A(1) of the Act.

Typically, during the process of the divorce, the Court will appoint an arbitration committee to arbitrate as most divorces are messy and this is governed by S.47-S.49 of the Act. They can take several rounds of arbitration and finally, the recommendations are forwarded back to the Court.

Secondly, there is Khul’ governed by S.49 of the Act that essentially allows the wife to initiate the divorce. This form of divorce essentially allows the wife to ‘buy’ herself out by paying the husband a fee. To me, this is an interesting form of divorce. However, it is generally only accepted if there are irreconcilable differences on the part of the wife.

Thirdly, there is Fasakh governed by S.52 of the Act that is essentially a court ordered divorce. The grounds for such a divorce are many and listed in great detail in the Act. Some interesting examples are when the husband is imprisoned for more than 3 years, failure to perform marital obligations for a year, husband was impotent at time of marriage, insanity and also a partner suffering from an STI.

Fourthly, there is Ta’liq goverend by S.50 of the Act. This form of divorce is unique in Malaysia as it is sourced from Malay Adat instead of from Islamic Authority. Essentially, my take on this is that it’s a form of divorce by contract, where both parties agreed verbally to divorce under specific conditions. Once these conditions are met, the wife can initiate the divorce.

From the list of cases given for our reading, this form of divorce is the most common in Malaysia as it is also the easiest to do. From case law, one can almost make all kinds of requirements and conditions that when met causes the marriage to be voidable.

Finally, there is Li’an which is a very special case of divorce where the husband catches the wife in the act of adultery with another person. He can then apply for a divorce by taking an oath. This is governed by S.50A and S.110 of the Act. This form of divorce is final.

That’s it – a quick description of the various forms of divorce under Malaysian Islamic Law. Of course, there are a lot more details to cover but those are details that I’ll have to cover for my own examinations.

My take on it is that the freedom to divorce is generally in the hands of the husband, while the wife is allowed to initiate divorce under specific conditions. This may seem biased but this has to be balanced with what happens after divorce. The wife can file for all sorts of claims that are biased to her instead.

Therefore, my reading of the Law is that Islamic Law allows one to easily get married and to easily get out of it as well (in the sense that the rules and regulations are all nicely laid out). I think that this is essential for a way of life that encourages marriage and procreation by reducing the risk and consequence of failure.

Till death to us part may sometimes be taken too literally.

Of Employees

I’ve been doing a little reading on Vicarious Liability (VL) recently. Every employer out there should be aware of their exposure under this tort – start-ups even more so. VL is typically employer (ER) being held vicariously liable for any tort committed against a third party (P) by their employee (EE).

But that’s just the simplistic overview. The legal requirements for vicarious liability are that:

there must be a legal tort committed by the EE against P;
There must be one of the other legally recognised torts committed by EE against P. There is no ifs no buts. This was highlighted in the case of Kerajaan Malaysia v Lay Kee Tee & Ors which involved the pig farmers suing the government for negligence during the Nipah virus episode that resulted in 40+ deaths. It was held that they could not sue the government directly for negligence but had to first show that there was a tort committed by the government employee first, before that liability can be transferred to the government.
that there exists a special relationship between ER and EE;
Vicarious liability is by no means limited to ER and EE but that’s just the most common, and easy to understand. There are generally three tests that can be used to see if someone is in a special relationship:
1. Control Test
  It was laid down in Short v J & W Henderson Ltd that four factors are to be considered i.e:
  - the power to selection in the ER.
  - the power to determine the salary or other remuneration.
  - the power to control the method in which the work was done.
  - the power to terminate the EE’s services.
  It was further added in Collins Hertfordshire CC that a contract of service existed if the employer had the power to instruct the employee and to control the method in which work was done.
  
  However, this test has been found wanting as there are lots of cases of people who are employees but whose employers have no power to control their work e.g. doctors in a hospital and other professionals.
2. Organisation Test
  It was held in Stevenson, Jordan and Harrison Ltd that it was not so easy to differentiate between a contract of service with a contract for services. So, another consideration would be whether a person was integrated into the organisation or merely doing work for the organisation.
  
  In Mat Jusoh b Daud it was held that while the plaintiff was not their employee but an employee of their contractor, his work product was integral to their business and was therefore their employee. Hence, the integrity of the task being done is just as essential to determining whether a person is an employee, and not just to follow the classical definitions.
3. Mixed Test
  This is also called the common sense test. It is essentially a combination of both the tests above to determine if any special relationship exists between the ER and EE.
However, in Malaysia, the preference is to use the control test. I think that this is because that is much easier to prove on paper than to get into the convoluted and subjective organisation test. In a majority of cases, there is no problem in proving employment. However, there are some grey areas such as surgeons at a hospital.

In Tan Eng Siew v Dr Jagjit Singh, it was held that as the doctor had a private practice and was merely renting the hospital facilities such as operating room etc, the hospital could not be held liable to the plaintiff.

Also, another grey area is where employees are seconded or lent to another organisation. It is held in Mersey Docs and Harbour Board that because the seconded employee, although working for the new employer, was actually still under the control of the old employer, the old employer was liable.
the tort must be committed during the course of employment.
The general rule is that if the tort was committed while in the ‘line of duty’, the employer should be held ultimately liable. This is much more difficult than it sounds because the problem then becomes, what is considered ‘line of duty’.
- Carelessness while on the job.
- Mistake of worker.
- Worker delegating responsibility.
- Worker acting for own benefit.
- Protecting employer’s property.
- Disobeying direct orders.
- Frolicking.
- Fraud.
- Theft.
- Sexual abuse.
- Statutory duty.
- Time of employment.
- Location of employment.
Each of these things have a whole set of issues to be considered. Time for that in a future blog entry.