Default-Sabah Law

PLEASE NOTE: LEGISLATION AND ORDS PROVIDED ABOVE ARE "AS IS" AND ARE FOR EDUCATION PURPOSES ONLY. YOU MAY WISH TO CONSULT THE SABAH ATTORNEY GENERAL'S WEBSITE FOR THE LATEST LAWS.

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The recent news of the untimely death of a well known native car dealer in the USA was used to advance NEP is really uncalled for. It is clear that this native had through NEP amassed a large amount of APs (STAR – page 22 on 3.5.2008) which evidently deprived other natives from the same which is another way of saying the NEP can only produce a few successful natives but only at the expense of other natives and non-natives. This is the reality which must be checked. Granted this native is a great salesman, he loved cars and he loves NEP but the result is unbecoming of NEP’s goal. And that is the flaw in the system which unfortunately the leaders of this country can’t see or wish not to see or encourage. The larger issue is why should the rest of the population pay overpriced cars in the first place in order to support an industry that is well known to be technologically challenged and intensely competitive which Malaysia really has no edge at all (other than being low cost assembler) ? It is a fact that even distinguished British Marquees have folded in the face of this global competition. And after more than 20 years this industry still could not survive on its own is telling. Ultimately, it is the poor natives and non-natives (strategically deprived of a functional public transport system) who are penalized by paying through their nose for fourth rated vehicles which are no more than death traps waiting in accidents; which explains why Ministers preferred imported vehicles. It is clearly a double standard here and government officials should be driving around in Kancils or Waja and not Ninja or Mercs.

From the law’s point of view, it is perfectly enshrined in our Constitution for Natives to get the APs.

153. Reservation of quotas in respect of services, permits, etc., for Malays and natives of any of the States of Sabah and Sarawak.

(1) It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.

(2) Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.

etc

It is the last sentence "permits and licences" required by federal law. Check out the same in State constitutions as well.

5/4/2008 9:35:29 AM

Talking about ACA reforms. For the novice, the current act is Anti-Corruption Act and not the Prevention of Corruption Act (repeal). Secondly, the prosecution is fond of using Avaraj case (privy) but they forget to tell you this case is based on the now repeal Act, ha ha. Further, my experience shows ACA loves entrapment but they forget to tell you about R v Looseley (HOL). My only complaint is that not much is known about procedure and process of investigation of the ACA and will be difficult to show this in court. Hopefully, with the New Commission more light will be shed here to ensure transparency. Cheers.

4/23/2008 7:46:55 PM

Its been almost 1.5 months, and those unappreciative are still blaming each other bickering over whose fault. In the mean time, their oppositions have already gain momentum by exposing past misdeeds (errors) and helping the rakyat by donating land to schools, helping with issuance of titles and nominal quit rent for NGOs and schools. Opps, forgot they also waive some fines. Recently, the defacto leader of opposition has come to offer Sabahan 20 % of their revenue instead of the current 5 %. Instead, our elected unappreciative representator reminded us that this is not sincere. How ? It is easy to be emotional about this but it should not. It was before our time, the Sabah Government (perhaps naively) had agreed to this 95-5 split with the Federal Government but the unspoken truth if told is that this has not worked well in Sabah’s favor at all. Therefore, it does not matter whether it is BN or opposition, making the proposal because it should be Sabah dictating the terms of its own resources. It is plain that this ratio has to be changed but is 20 % the right portion ? Why not 60-40 (60 in Sabah’s favour of course to redress the unfairness for the last 30 years or 70-30. Therefore, in my opinion this subject is not taboo and should be raised now to recognize that the silent majority for too long been very dissatisfied. So this brings the next question which is why is it Sabahans are so tolerate ? Why in the face of dissatisfaction we still voted for more of the same. Maybe, we are not aware of the wind of change from the West ? In fact, other than one former minister, no one even brought up the 20 points as a prelude. It is important to recognize much of the points have been made redundant except for immigration which has often been the last sore point with the West. I believe, it is the right time to link all the grievance at once after all these are collectively agreed terms, non-negotiable including leaving the federation. Furthermore, Sabah was not a mere state that join Malaya, it joined Malaya to form Malaysia but sadly, this was never reflected. In fact, SI in Malaysia actually represents Singapore which should be taken out now and instead, it is only proper to call MASAS (stands for malaya and sabah and sarawak). When Singapore left Malaysia, its MP seats were not redistributed and instead taken out making West Malaysia’s seats will always be more than Sabah & Sarawak combined, which means MPs from both states will never be able to form majority even if they wanted to. This should be addressed as well. To be fair, at the time of this writing, the Government has just announced compensation to the sacked justices in 1988 as a first step towards cleaning up the judiciary, this is a positive step. As it is not an apology at all, it is still lacking. Another step is to set up a more transparent judiciary select committee but any decision must still be confirmed by the PM. Its role is confined to nomination only. Also much work ahead for the ACA ?

4/23/2008 7:42:24 PM

As you all know, on the 8 Mach 2008 Malaysia had its 12th election since independence. This time, BN lost its 2/3 majority. Two things to note here. Despite all the advances in technology with mykad (smartcard identification), this was not used at all during the election ? WHY since it has been around last 5 years. A simple decoder is needed to read the data to ensure the card is genuine and holder is who he says he is. Secondly, with more than 200,000 Malaysians overseas, the EC had denied them voting rights at Malaysia High Commission which allowed only voting for their own government staff and students. The better view is that these are absent voters (see below). You be the judge.

Article 119 of the Federal Constitution reads:

119. Qualifications of electors.

(1) Every citizen who -

(a) has attained the age of twenty-one years on the qualifying date;

(b) is resident in a constituency on such qualifying date or, if not so resident, is an absent voter; and

(c) is, under the provisions of any law relating to elections, registered in the electoral roll as an elector in the constituency in which he resides on the qualifying date,

[Ins. Act A1130]

is entitled to vote in that constituency in any election to the House of Representatives or the Legislative Assembly unless he is disqualified under Clause (3) or under any law relating to offences committed in connection with elections; but no person shall in the same election vote in more than one constituency.

(2) If a person is in a constituency by reason only of being a patient in an establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness or of being detained in custody he shall for the purposes of Clause (1) be deemed not to be resident in that constituency.

(3) A person is disqualified for being an elector in any election to the House of Representatives or the Legislative Assembly if -

(a) on the qualifying date he is detained as a person of unsound mind or is serving a sentence of imprisonment; or

(b) having before the qualifying date been convicted in any part of the Commonwealth of an offence and sentenced to death or imprisonment for a term exceeding twelve months, he remains liable on the qualifying date to suffer any punishment for that offence.

(4) In this Article -

(a) "absent voter" means, in relation to any constituency, any citizen who is registered as an absent voter in respect of that constituency;

(b) "qualifying date" means the date on which a person applies for registration as an elector in a constituency, or the date on which he applies for the change of his registration as an elector in a different constituency,

in accordance with the provisions of any law relating to elections.

[Subs. Act A1130]

[Prior text read - "(4) In this Article "qualifying date" means the date by reference to which the electoral rolls are prepared or revised, and "absent voter" means in relation to any constituency any citizen who is registered as an absent voter in respect of that constituency under the provisions of any law relating to elections."

ELECTIONS (POSTAL VOTING) REGULATIONS 2003

3. Persons entitled to vote as postal voters.

(1) Any person who has registered as a Parliamentary or State elector under the Elections (Registration of Electors) Regulations 2002, and is—

(a) an absent voter;

(b) a person certified by the Election Commission to be an election officer and liable for duties on polling day;

(c) a member of any police force established by any written law in force in Malaysia, other than a member of the Police Volunteer Reserve Force;

(d) a member of any of the public services who on polling day is employed full-time in a post outside Peninsular Malaysia or Sabah or Sarawak;

(e) a member of the Election Commission appointed under Article 114 of the Federal Constitution; or

(f) a member of any category of persons designated as postal voters by the Election Commission from time to time by notification in the Gazette,

shall, on receipt of a postal ballot paper, be entitled to vote as a postal voter at an election in accordance with these Regulations.

(2) A person referred to in paragraphs (1)(b),(d),(e) and (f) desiring to vote by post shall apply to do so by using Form 1 in the Schedule.

(3) The application shall be made direct to the returning officer of the constituency in which he is registered through any State Elections Officer of a State as soon as it is known that an election is contested in that constituency.

(4) If an application is approved, the returning officer shall issue a postal ballot paper to the applicant and if it is not approved, the returning officer shall so inform the applicant and shall state his grounds for not approving the application in the letter prescribed in Form 1.

3/9/2008 5:53:18 AM

There is this unreported case by Ian Chin J dated 22 Nov 2007 concerning limitation period for interest claim under a judgment is governed by item 98 of the Schudule of the Limitation Ordinance. The limitation is 12 years in Sabah as compared to 6 years in west malaysia. The case is Re Johan HJ Abd Hamid, ex-parte Hong Leong Bank. The same case also refers to an earlier case, Re Yong Tet Yin, ex-parte United Overseas Bank Limited, Kota Kinabalu High Court, 24 May 2006. Note that this Limitation Ordinance although a Sabah Law but its declared a Federal Law which means only the Federal Govt can modify it.

3/6/2008 6:54:32 PM

Recently during the CNY, a former colleague of mine came back to Sabah. I got an email from someone in UK asking about practising in Sabah, so I refer the email to him, moreover I am not verse at all in UK stuff. Anyway, I think he did a good job (obviously the sender must be female : )), so I reproduced it below for the benefits of those in UK wishing to come back. I have edited the following for clarity and to avoid professional advertisement which unfortunately is still a forbidden fruit here in Sabah. Not even web-ads for law firms.

Should you intend to return to Sabah to commence legal practice as a lawyer (in Sabah, we are only known as Advocate,officially, unlike Advocate & Solicitor in West Malaysia, though there isn''t any difference at all, generally, in Malaysia), I hope the following will address your concerns:

Your Question: I heard that Malaysia now recognises the LPC from UK, is that true? Does it mean that i am able to go back and do my training in Malaysia? Or Malaysia will only recognise if i study LPC and train here until i am fully qualified?

My reply: Yes, it is indeed true that the Malaysian Bar Council does recognise LPC. As far as I am aware, duing my pupillage in Messrs ABC in KL, one of my chambeing colleagues is an LPC holder fom Northumbria University. He underwent pupillage with me and also, he had not undergone his training contract in UK as it was dfficult for him to secure one in the UK. Hence, there is practically no needx to undergo your training contract in the UK. Likewise, when I was pursuing my Bar Vocational Course (BVC) at University of West of England (UWE), I did not undergo pupillage in England. My recommendation fo you is to write to the Bar Council of Malaysia and the Sabah Law Association to get a written and unquivocal clearnace from both parties (if u want to establish your legal practice in both Sabah and/or KL).

Your Question: I was born in Sabah, hence I am a Malaysian citizen, so do i need to sit for any exams if i return to Sabah to work as a qualified lawyer?

My reply: It really depends on your choice as to whether you want to solely restrict your practice in Sabah and/or whether you would like to be qualified in the West Malaysian state Bars as well.

(a) If you want to be called to the High Cout of Malaya (West Malaysia) as an Advocate & Solicitor, then u may have to sit for your O-Level or SPM BM paper. One of the requirements fo legal practice there is that u must have passed the BM paper. If not, u may be required to sit for the oral test (translation) before a Judicial Commissioner or a Judge. U may also need to engage your potential firm''s translators to guide u on this, as legal translations are pretty tough.

(b) There is no requirement to pass BM in Sabah. Better still, if it is you very intention to commence legal practice in Sabah only, then it be an advantage for you since you were born in Sabah. By then, you can rely on th ''Sabah connections'' provision under s.4 (2) (c) of the Sabah Advocated Ordinance.For further referrence: http://www.vixa.com/slaw/adv.html

Your Question: Would i be classified as a foreign lawyer if I qualified in UK? If so, what would be the differences between a foreign lawyer and a local lawyer? Would i be restricted in my field of work?

My reply: No to all. As you were born in Sabah, Malaysia, u are not deemed as a foreign lawyer. Foreign Lawyers are solely for those whose nationality is other than Malaysians and/or those who do not have Sabah connections, in Sabah''s case.

Your Question: Do i need to undertake pupillage? Could any law firms take pupillage or there are only specific firms that are able to do so?

My reply: Yes. If you are to undergo your pupillage in West Malaysia, the duration is for 9 months. After that, if u are to return to Sabah, u still have to undergo another 6 months of pupillage to be qualified as an Advocate in Sabah. The plus point here is that, having the opportunity to chamber in West Malaysia, you will be more exposed to the court procedures and the rigourous legal practice, be it litigation or corporate, especially the high-profile cases in KL. To chamber there, your Pupil Master must have at least 7 yrs of continuous legal practice experience in order to take you in as his/her pupil.

Alternatively, u can choose to come back straight to Sabah to commence chambering.You must ensure that your Pupil Master has at least 5 yrs continuous legal practice experience in order fo you to commence your chambering.

Your Question: Apart from these specific questions, could i also ask you generally what do you think of the differences between studying CLP and training in Malaysia with studying LCP and training in UK? Is there any benefits of doing so if i were to go back to Malaysia to practice eventually?

My reply: CLP is very much based on memorising and lacks practical training. The practical part would come in during the chambering period. However, the advantage of CLP is that the CLP holders are more exposed to the local court procedures, compared to the Australian or UK-qualified grad. Nontheless, this can easily be acquired during the pupillage period as Malaysian legal system is very much similar to England''s and Australia''s.

LPC affords you the window of international legal practice, such as the opportunity with the Golden Circle, as the solicitors know it in England, such as Baker & McKenzie, White & Case, Allen & Overy and so on. Not only in England, but also it will open the gateway to other countries in the corporate field of those big firm''s branches.

Ever consider the BVC? BVC affords you the wider practical training in legal advocacy and drafting. Negotiation skills are widely emphasised from the very beginning. From what I had experienced, I felt like a lawyer and fitted in like one fom the very first day I stepped into the Bar. My advice for u is to do more research on LPC, BVC and CLP and make comparisons. It would be clearer to know your intended destination and desired route than simply choosing one without knowing thoroughly about the other options available to u. Clarity leads to the power of choice.

3/3/2008 8:21:13 PM

Wow, gangsters being exported to sabah ?

He cited an example of gangsters, arrested in Bintulu last year and deported to various parts of Sabah, who managed to somehow get back into Sarawak and make Miri their new base.

In Star 1 March 2008. Gang bosses make comeback By Stephen Then

http://www.thestar.com.my/news/story.asp?file=/2008/3/2/nation/20509935&sec=nation

3/2/2008 4:22:07 AM

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2/21/2008 11:42:55 PM

For those of us in Sandakan, the joy of living here is that we can travel to Spore via Johor Baru DIRECT but recently I heard this direct service will revert to MAS. I am unhappy for a number of private reasons. I have setup a petition which if we have enough numbers will be presented to the votes hungry politicians later, so join in

http://www.PetitionOnline.com/sdk123/

2/5/2008 1:08:54 AM

Happy CNY to all

2/5/2008 1:02:48 AM

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