Malaysian and Japanese Law

On November 7, 2014, a three judge panel of the Putrajaya Court of Appeal said that a state of Sharia law ban on cross-dressing because it was “degrading, oppressive and inhuman” and that as long as it was in force, transgender people “will continue to live in uncertainty, misery and indignity.”

The case was filed by a transgender women in Malaysia who challenged section 66 of the Sharia law in Negeri Sembilan state, which prohibits “any male person who in any public place wears a woman’s attire or poses as a woman.” The state’s Religious Department has used this law repeatedly to arrest transgender women – most recently, in a mass arrest of 16 transgender women at a wedding party on the night of June 8, 2014.

The Court of Appeal ruled that section 66 was unconstitutional and void because it violated the appellants’ rights to live with dignity, earn a livelihood, and directly affects their freedom of movement, expression, and equal protection of the law. The court stated that transgender people “will commit the crime of violating section 66 the very moment they leave their homes to attend to the basic needs of life, to earn a living, or to socialize; and be liable to arrest, detention and prosecution. This is degrading, oppressive and inhuman. … [It is] discriminatory and oppressive and denies the appellants the equal protection of the law.”

Muslims are subjected to state-level Sharia (Islamic law) ordinances, in addition to the federal criminal law. Since the 1980s, every state has passed Sharia criminal enactments that institutionalize discrimination against transgender people. All 13 Malaysian states prohibit Muslim men from “dressing as women,” while three states also criminalize “women posing as men.” The laws, enforced by state Islamic Religious Departments, do not define what constitutes transgender dressing or posing.

In comparison with Japan

Shinto, Buddhism and Confucianism that are in Japanese traditional religions, do not prohibit homosexuality and transexualism explicitly. For 1872 years, at the beginning of the Meiji era, some action of transexualism are decided as illegal under the influence of the Western politics and culture. But this rule disappeared in 1880 -eight years later. After that any big discrimination and court case does not happen in Japan. However same-gender marriage is not accepted by law, except in some area in Japan.

  

Translated from: 日本の伝統的な宗教である神道や、仏教、儒教などは同性愛や異性装を明示的に禁止しておらず、日本の歴史においてそれらは肯定的なものと捉えられていた。その後、明治時代初頭の1872年、西洋の政治・文化の影響などで同性愛行為のうち鶏姦（肛門性交）のみが違法とされたが（鶏姦罪）、8年後の1880年に制定された旧刑法（施行は1882年）からはこの規定はなくなった

Sources: http://www.hrw.org/ja/news/2014/11/08-1

Customary Law in Malaysia : Adat Perpatih

Adat

•  Malay community in Peninsular Malaysia have to undergo adat and islamic law other than general law which is applicable to other communities in Malaysia.
•  Adat has play a major role in Malay community for many centuries as "adat" has reflected the importances of their lives.
• The "adat" term in Malaysia refer as Customary Law.

Adat Perpatih

• Adat perpatih is applicable in Negeri Sembilan and Naning in Melaka only.
• This adat is wholly relates to democratic matrilineal adat / customary law.

Female members priorities in Adat Perpatih ;

• Ancestral properties such as land , lineage , inheritance and election of members of YDP and lembaga are assigned to female members.
• Female members owns the rights to hold the property in trust behalf of the family respectively.
• Female members can only inherited in equal shares of property according to the Will.
• Land or any properties is entitled under female members who is forming the permanents members for their customary law.
• All female member will associate with a piece of land based on the custom.
• The properties that the female members holds will passes through all the ancestry female members of Adat Perpatih customary law.

Female members of adat perpatih

Men members & Marriage custom in Adat Perpatih;

• Men in Adat Perpatih does not belong to any properties. A man is considered as from his mother's tribe until get married , once get married he belongs to his wife's tribe.
• According to the adat , the male members are repay if their marriage occurs outside of a tribe whereas any unmarried male members hold the rights of property of their mothers.
• Inter - tribal marriage is strictly offence in their adat perpatih custom law.

Below the female members position of Adat Perpatih;

• According to local malay term :  
  

Source: http://itslaw.blogspot.com/2010/09/adat.html

Customary Law in Malaysia : Adat Temenggung

Customary Law

Is defined as an ancient or can also be said as a native unwritten law for a local place in particular.These set of laws are not practiced by the legislative authorities in a country.There are two types of customary laws which are Adat Temenggung and Adat Perpatih.

Adat Temenggung

1. The customary laws of adat temenggung are based on Islamic principles and is very much applicable in all states in West Malaysia except Negeri Sembilan. 

• Adat Temenggung is favourable to men compared to Adat Perpatih. It is based on the characteristic of the patrilineal form of organisation and  fundamentally based on Islamic principles or (Hukum Syariah).
• Adat Temenggung  holds the same rules in the distribution of inheritance as the Quran.This is why this customary law is accepted in the Malay society

2. In the case of Adat Temenggung, the distribution of the deceased property or estate is as follows: -

• A daughter is entitled to half of the entitlement of the son which is (1/2) of the sons property
• If there is no son, the daughter is entitled to half of the deceased estate.
• If there are two daughters and no son,the daughters will be entitled to two-thirds(2/3) of the estate in equal share.
• The wife or wives of the deceased will be entitled to one quarter(1/4) of the deceased’s estate if there are no children in the marriage. If there are children, the wife or wives will be eligible to only one-eighth (1/8)of the estate.
• A husband is entitled to half(1/2)of the wife’s estate if there are no children. If there are children, the husband will be eligible to a quarter(1/4) of the estate.
• The father or mother of the deceased who died leaving their children is entitled to one-sixth(1/6) of the deceased estate.

Source: http://ironwills.com.my/what-is-customary-law.html

Commercial Law and Practice Areas

Commercial Lawyers

Commercial lawyers work on a broad spectrum of transactions, from substantial outsourcing, joint ventures and project development agreements to day-to-day manufacture, logistics/warehousing and advertising arrangements. The common element with all of these transactions for a commercial lawyer is the drafting and negotiating of contracts, whether in their own right or as part of complex mergers and acquisitions (M&A) and financing transactions.

Negotiating contracts

A typical transaction relating to a one-off contract usually involves discussing/reviewing the key commercial drivers with the client, preparing the first draft of the contract (or reviewing a draft provided by the other side), negotiating the key issues and preparing re-drafts reflecting these negotiations and finalising the mutually agreed contract. More complex transactions can involve other steps, including making sure an agreement fits within a framework of contracts.

The types of clients include small start-up businesses, local authorities, medium-sized enterprises and big well-known companies in a range of markets. Commercial lawyers gain a real understanding of a client's business, how it works, current and future strategies and its relationships with customers, suppliers and partners. There is usually a good mix of time spent in the office and time spent out and about visiting clients and attending meetings with other lawyers; secondments to client offices aren’t uncommon.

Numbers working on a particular transaction will vary. Preparing standard terms of sale or purchase or drafting long-term supply contracts usually only involves one or two members of the commercial team, but the more substantial projects may involve teams of five or more where the commercial lawyer will draw on and project manage the expertise of colleagues in many other practice areas (such as intellectual property, employment, tax, property and corporate structures) as well as drafting and negotiating the main contract documents. The commercial lawyer will usually be working on more than one agreement at any time.

Highs and lows of commercial law

Commercial lawyers tend to have more consistent levels of work than ‘pure’ M&A teams where there might be significant peaks and troughs. The lawyers in our team are usually in the office between 9.00 am and 7.00 pm most days, but hours can be unpredictable and all-night stints/weekends may be require, depending on the transaction deadline.

The best and worst aspects of practising commercial law are probably the same. The law is constantly changing and evolving. Keeping up to date with the latest commercial and legal developments requires dedication, but ensures that the work is never dull.

Recession-proof?

The credit crunch has affected the volume and value of commercial work that is available. However, as the contracting process forms the core of day-to-day trade for most businesses, work levels have remained comparatively consistent. The work carried out by the commercial lawyer is perhaps even more vital in times of economic hardship as businesses need to be even more careful about the terms upon which they contract, or the parties with which they are concluding deals, to avoid making costly mistakes.

As a trainee

Trainees play an important role in any commercial law team. Their tasks include researching and sense checking, drafting legal documents and legal briefings and assisting at client meetings and completions. There will usually be opportunities for a trainee to follow and contribute to the evolution of a contract from start to finish.

Types of law

• Contract law.
• Commercial agency law.
• Sale of goods/supply of services.
• Advertising, promotion and media law.
• Regulatory controls (across a variety of industries).
• Company law.
• Intellectual property.
• Privacy and confidentiality.

A good commercial solicitor needs…

• The ability to think creatively, laterally and commercially (balancing rules, regulations, risks, client interests and revenues).
• Project management skills.
• The dedication to keep up to date with a continually evolving area of the law.
• Sound drafting and negotiation skills.
• Adaptability, working alone and as part of a team.
• The ability to consider the bigger picture and not just focus on the issue at hand.

Source: https://targetjobs.co.uk/career-sectors/law-solicitors/290449-commercial-law-area-of-practice
https://www.youtube.com/watch?v=0FOP5qws5V4

Malaysian Judiciary

Malaysian Judiciary

     1. Superior Court

• Federal Court : hear civil and criminal appeals from the Court of Appeal

• Court of Appeal : hear all civil appeals against decisions of the High Court

• High Court : hear appeals from the Subordinate Courts in civil and criminal matters

     2. Subordinate Court

• Sessions Court : hear all cases except those punishable with death

• Magistrates' Court : 

1. 1st Class Magistrates' Court : hear both civil and criminal appeals from any decisions of  Penghulu's Court
2. 2nd Class Magistrates' Court : hear all offences for which maximum sentence provided do not exceed 12 months imprisonment or with fine

• Penghulu Court : hear civil matters which the claim does not exceed RM50

The Palace of Justice.

Sale of Goods

Sale of Goods 

• A sale of goods is the most common type of commercial contract.
• In Peninsular Malaysia, the statute applicable to sales of goods is the Sale of Goods Act 1957 (SOGA) while Sabah and Sarawak uses CA and the principles of English law.

Sec 4(1) : "A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property on goods to the buyer for a price." 

Sec 5(1) : "A contract of sale is made by an offer to buy or sell goods at a price and by the acceptance of such an offer".  

Taken from : southernalpha.com

Goods 

Sec 2 : "Every kind of moveable property other than actionable claims and money, and includes stocks and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale"

• Based on the above definition, all moveable property are considered as goods except immoveable property (land), actionable claims like debts or pending settlements of claims and money, trees and fixtures attached on earth and not severed. 

Types of Goods

Sec 6(1) : "The goods which may form the subject of a contract of sale may be either existing goods, owned or possessed by the seller, or future goods".

• Existing goods - goods which are already owned or possessed by the seller at the time of the contract of sale.

•  Future goods - goods that are to be manufactured or produced or acquired by the seller after the making of the contract of sale. 

Source: PLC0015 Introduction to Commercial Law

The Law of Contract

Definition and Meaning of Contract

The word 'contract' can be defined as "an agreement enforceable by law". A contract is an agreement which is legally binding between the parties. The legislation that governs contracts in Malaysia is the Contracts Act 1950. The Contracts Act is differ from English law.

Elements of a Valid Contract

• Offer and Acceptance
• Consideration
• Free Consent
• Intention to Create a Legal Relation
• Lawful and Valid
• Competency to Contract

1. Offer and Acceptance

Section 2(a) provides that 'when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtain the assent of that other to the act or abstinence, he is said to make a proposal'

The promisor (offeror) must have declared his readiness to undertake an obligation upon certain terms, leaving the option of its acceptance to the offerer, the person to whom the offer is made.

Affin Credit (Malaysia) Sdn Bhd v Yap Yuen Fui [1984] 1 MLJ 169

Where there was a lack of offer and acceptance, the purported hire-purchase agreement was declared viod ab initio, or void from the beginning.

Section (4)1 says communication of a proposal is complete when it comes to knowledge of the person to whom is made

Section 9 A proposal made in words (oral or written) is said to be expressed. If a proposal is made other than in words, it is said to be implied 

In the circumstances, a party intends their words or conduct to constitute and offer, then the courts will be  prepared to construe it as such. 

Carlill v Carbolic Smoke Ball Co. Ltd [1893] 1 QB 256

The plaintiff was entitled to the £1000 as she had accepted the offer made to the world at large

An offer must be distinguished from an invitation to treat. An invitation treat is not an offer, but rather is an offer to consider offers which includes

• Auctions
• Advertisement of tenders
• Catalogues
• Price lists
• Goods displayed in shop windows and shelves

Section 7(b) provides that acceptance must be expressed in some usual and reasonable manner, unless  the proposer prescribes the manner in which it is to be accepted. However, the proposer cannot prescribe silence as a manner of acceptance.

Acceptance is only effective when it has been communicated.

Revocation of Offer and Acceptance

1. Communication of the notice of revocation by the proposer to the party to whom the proposal was made.
2. The time prescribed in the proposal for its acceptance elapses.
3. The failure of the acceptor to fulfil a condition precedent.
4. The death or mental disorder of the proposer.

As a general rule, when acceptance is complete, an agreement is formed so that there is no question of revocation.

Section 6(a) A revocation of an offer must be communicated in order to be effective

Section 5(1) A proposal may be revoked at any time before the communication of its acceptance is complete

Section 5(2) An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards.

2. Consideration 

Section 26 As a general rule, an agreement without consideration is void.

Past Consideration is a Good Consideration

As a general rule, English law does not recognise past consideration. A claim may be founded on an act done prior to the promise. Such a claim would be valid so long as the promisee had done or abstained from doing something pursuant to the desire of the promisor and not necessarily in pursuance of a promise to be made by the promisor.

Natural Love and Affection is Valid Consideration 

An agreement made on account of natural love and affection would be held to be binding in Malaysia if the requirements of section 26(a) are present;

1. It is expressed in writing
2. It is registered (if applicable)
3. The parties stand in a near relation to each other

Accord and Satisfaction  

It is general rule that payment of a smaller sum is not a satisfaction of an obligation to pay a large sum.

Consideration Need Not Move from the Promisee

A party to an agreement can enforce the promise even if he himself has given no consideration as long as somebody has done so.

Venkata Chinnaya v Verikatara Ma'ya [1881] 1 LR 4

Consideration may move from the promisee or any other person (3rd party)

3. Free Consent 

All agreements are contracts if they are made by the free consent of parties.

Section 14 provides consent is said to be free when it is not caused by one or more of the following;

1. Coercion
2. Undue influence
3. Fraud
4. Misrepresentation
5. Mistake

Section 19(1) provides that when consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused

Section 19(2) goes on to say that a party to a contract, whose contract was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representation made had been true

Section 14 is that there has been no free consent between the parties

4. Intention to Create Legal Relations

Silent on the intention to create legal relations as one of the requirements of a valid contract, case-law clearly dictates the necessity for this requirement. Besides, cases where no intention to enter into legal relations can be imputed. In domestic arrangements, there is a presumption against the existence of an intention to create legal relations whilst in commercial arrangements the rebuttable presumptions is that legal relationships are intended.

5. Lawful and Valid

Every agreement of which the object or consideration is unlawful is void.

Section 2(g) A void contract is an agreement that is not enforceable by law

Section 24 provides that the consideration or object of an agreement is unlawful if it falls within any of the subsections of the section

The consideration or object of an agreement is lawful unless:

1. It is forbidden by law
2. It is of such a nature that, if permitted, it would defeat any law
3. It is fraudulent
4. It involves or implies injury to the person or property of another
5. The court regards it as immoral or opposed to public policy

6. Competency to Contract

The parties entering into a contract should also be competent to contract.

Section 11 capacity refers to the ability of parties to a contract to fully understand its terms and obligations

Mohori Bibee v Dharmodas Ghose [1903] 1 LR 30

• The appellant in this case loan a sum of money to the respondent,the minor, secured a house which was leased to the appellant
• The minor, through his mother, applied for a court declaration that the lease was void because the minor has no capacity to contract.
• Courts held that agreement made by a minor is void

In Malaysia, the age of majority is 18 years (Age of Majority Act 1971) The Privy Council held that an infant cannot make any valid contracts.

Source: Commercial Law: Second Edition by Oxford Fajar

Importance of Malaysian Judiciary

Hierarchy of Courts In Malaysia 

The courts structure is divided into :

• Superior Courts

1. Federal Court, Court of Appeal & High Courts

• Subordinate courts:


2. Sessions Courts, Magistrates’ Court & Penghulu's Courts

Source: PLC0015- Introduction to Commercial Law