See With Your Mind, Read Between the Lines

In an ideal world, you can expect all relevant details and information to be disclosed to you. Be it from your client, employer or the exam papers. Also, in an ideal world, you can expect the cases and problems you need to address are all clear cut and purely academic. But in that ideal world, wouldn’t it be boring? As a Law student, a skill which you should acquire in 3-4 years of legal education and training is this: reading between the lines.

Reading between the lines?

Imagine you, as a client, talking to your lawyer. Would you actually disclosed every detail? Example you’re asking for divorce. Will you tell what on earth were you doing with the other person - who is not your spouse - in your birthday suit at 3 am in the morning at a cheap hotel? Maybe your account is not meant to conceal things. Another probability is that you would forget certain details. Perhaps you were drugged before you were dragged to the hotel.

Sometimes, the things that aren’t explicitly mentioned are critical to your case. These small insignificant details, you thought, would have no effect. Sorry to say, in many a times, your overlooking of these information could result in your own loss.

Let’s be practical on the subject, shall we?

Case law. You are asked to read Donoghue v Stevenson or Re Webster. Next tutorial class, you are to present it and submit a report. Alternatively, you were assigned Stephen Kalong Ningkan and are asked to prepare a case brief/report. What do you do? How can you tell an argument was from the respondent and the other from the appellant?

If you’ve opened up a case law, you would know that the details therein are: case name, keywords, summary, judgment. Yes, the lawyers representing each party are named as well. But you do not have ‘arguments by the plaintiff’ or ‘defendant’s submission’. Yes, again, some judges highlight who said what. But what if they did not?

Here’s where your ‘reading between the lines’ skill comes in.

Another illustration, a statute. A particular clause says so-so-and-so are prohibited? But does it also mean that not-so-and-so are all permitted? In your first year, you would be exposed to the rules of interpretation (i.e. Golden rule, mischief rule, literal rule, hybrid, etc). But the apply these you still need to know: what is this person not telling me but can be deduced - not assumed - from this scenario?

Why not ‘assumed’? A fatal mistake many do over and over again is defending their case based on pure assumption. When you deduce, you have a concrete evidence based on the scenario. When you guess, you are shooting in the dark. Personally, I don’t want my lawyer to d the later. It is a sure way to fail.

Another thing you should consider are the circumstances surrounding the problem. Remember, honour killing may be illegal and inhumane in some parts of the world. In a different part, it may be the best option. In cases such as defamation, you cannot assume that the parties involved grew up and are trained in England or Kuala Lumpur. Your clients can be from Ulu Kapit and Ulu Baram for all we know in real life. These circumstantial informations should be deduced and be used.

Now, let’s talk exam papers, shall we?

In the Finals, the information provided in the question paper are all relevant and meant to show something. Use it, manipulate it but do not resort to assumption unless you can deduce. Deduce, again, a la Sherlock Holmes. No one said the Legal Studies/Law programme was an easy, trouble free programme. :-p

Did you know that extra marks are allocated if you can detect the ‘hidden’ issues? Consult your lecturer or tutor for more details. Each subject has different approaches.

When you’re in UiTM, you will do the Literature Appreciation subject in your 4th Semester. Use this opportunity to be critical of literature. It’s a good foundation to reading between the lines.

‘Anti-Hopping’ law - Will it work?

According to this New Straits Times newspiece, newly appointed Minister in the Prime Minister’s Department in charge of Judicial Affairs, Senator Zaid Ibrahim, has proposed that Malaysia adopt an ‘anti-party hopping’ law. The purpose of such a law would be to prevent an assemblymen or Member of Parliament from changing political parties once they have been elected. This proposal, being reactionary (as is always the case in any Malaysian situation) is in response to the recent 2008 Malaysian Elections which saw the Opposition gaining a record number of seats at federal level, denying for the first time ever the ruling coalition’s two-thirds majority in parliament. Following this, prominant Opposition leader Anwar Ibrahim had claimed that certain members from the ruling coalition had expressed interest in joining the Opposition in enough numbers so as to gain a parliamentary majority and thus toppling the current government. Countenancing this, Zaid said a Bill would be drafted and tabled for this purpose.

 Much has been said in support of this proposal. Malaysia’s foremost legal authority, Professor Shad Saleem Faruqi, before the elections speaking at an Election law talk organised by the UiTM Law Society claimed that party hopping was a form of “political prostitution”. He has in the past few days also voiced support for such a law. The logic of such a law is simple. If you contested on say, Political Party A’s ticket, and after winning, suddenly switch allegiances to Political Party B, carrying the won seat with you, is it fair to the electoral who voted for you in the first place, assuming of course they vote for the party you’re from?

 However, such a stand could be held to contradict the notion of freedom of association, which is a right protected under Article 10 of the Federal Constitution of Malaysia. In the case of Dewan Undangan Negeri Kelantan v Nordin Salleh [1992] 1 MLJ 697, one Nordin Salleh, a member of the Kelantan State Legislative Assembly, from PAS, a party that was ruling in Kelantan at the time but was in Opposition at the Federal level, switched from that party to the BN, which was ruling at the Federal level. PAS which had earlier passed its own anti-hopping law sought to take action against Nordin, but failed for the Court ruling that such a law was void for violating freedom of association under Article 10. Similarly such a precedent esstopped PBS, a Sabah based political party, from taking action against assemblymen which crossed from that party over to the BN in the 1970-80s. It should be noted at this point that these developments were all favourable to the ruling coalition so of course, there was no question of allowing a law prohibiting such a practice then. Besides, didn’t it contravene a human right? Now that this situation puts BN in an adverse condition, what with its weakened support base following the 2008 elections, such a law is on the cards. This isn’t an attempt to be political - far from it. But this is simply fact. Still, the Opposition parties, such as Nik Aziz of PAS, support such a move. Oh, well.

 Professor Shad, opining in the New Straits Times recently, said there would be two ways in which such a law could be reconciled with the Federal Constitution’s protection of freedom of association. One, such a law could be enacted on grounds of morality, which is an exemption provided within Article 10 itself. The problem with this approach is that, given that PAS’ own anti-hopping law failed the Article 10 test despite the existance of this proviso, it is doubtful whether Zaid’s Bill would. Another would be by amending Article 10 to allow the law to function without this hiccup, as has been done in countries such as India. But amending the Constitution now would need the support of the Opposition parties, given that the ruling BN has been denied its usual two-thirds. Zaid expressed confidence that they would allow this, should it need be. The question is, would they?

To sell promises

Selling promises? Can promises be traded at all? Is there such a thing, or are we just pulling your leg?

Nah, surely jest wouldn’t be appropriate here. This is a law blog, a serious blog after all. As is the topic at hand.

 What is to be talked about here is actually the West Malaysian land law concept of jual janji (literally to sell a promise) however what is referred to here is not promises but security transactions involving land. Evolving from Malay custom dating back to the 19th century (Judith Sihombing),  jual janji involves giving land as security to secure a loan. Under this concept, the borrower transfers his ownership of land to the lender, in exchange for loan as a consideration, and holds that land pending repayment. The lender is also entitled to profits of the land during the loan tenure. In the event the borrower defaults, the lender becomes absolutely entitled to the land in question, making the transaction a jual putus (”severed” sale).

 The elements of this phenomenon are that there firstly must be a lender and a borrower, and that they intend to conclude a loan and use land as security. Then the land must be transferred to the lender. The lender takes proceeds of the land pending repayment of the loan amount by the borrower, and the lender returns the land to the borrower upon full repayment of the loan. No documentation or registration takes place at all, making the whole process bureaucracy-free. However, with the enactment of the National Land Code 1965 in West Malaysia, jual janjis are now executed in the form of collateral agreements. The process, some scholars argue is akin to that of a common law mortgage.

 Problems however arise when disputes over these Malay customary transactions are litigated before the Malaysian courts. Is it a pure contract of sale (ie law of contract should govern it) or is it a customary security transaction? If the former, then time is of essence and the borrower loses the land upon failure to pay within the stipulated period. Not so if the latter.

One view, the most dominant I might add, by the Malaysian courts has to regard such transactions as contracts of sale. This approach is illustrated in the leading authority on the issue, Haji Abdul Rahman & Anor v Mohamed Hassan (1917) AC 209 (PC). In this case a borrower repaid his outstanding amount, but not within the agreed time period. The court held that transactions such as these were contracts of sale, and since time was of the essence in contracts the borrower was no longer entitled to have his land returned to him. Jual janjis were not mortgages since the only mortgages recognised in Malaysia were charges, or liens under the National Land Code 1965. A slap in the face for West Malaysian native land customs, it should be observed. This case was approved in other cases such as A Kanapathy Pillay v Joseph Chong (1981) 2 MLJ 117 (FC) where Salleh Abbas FJ said there are no equitable rights arising after expiry of time under “a contract”.  An exception exists however. If parties who enter into a contract do not perform their duties as enshirined within, there could be breach of contract, say, for example where the conduct of the lender himself caused the late repayment of the borrower. One case in which this situation arised was the case of Ismail Haji Embong v Lau Kong Han (1970) 2 MLJ 213 where the period for repaying had expired, but the lender extended the period subject to a $40 charge. The court held that the borrower was entitled to his land back.

 There are some hopeful cases where the origin of jual janjis as a Malay land custom are respected. In one such case, Yaacob bin Lebai Jusoh v Hamisah Bte Saad (1950) 1 MLJ 255 (CoA) the plaintiff sold land to the defendant and later the parties entered into an agreement whereby the defendant would resell the said land back to the plaintiff within 3 years, and that such an agreement would be null and void had this period lapse, and so it did. The judges, Jobling J and Briggs J held that time did not matter, as it was a mortgage ie a jual janji. It should be pointed out at this point though, that this is a pre-National Land Code case. However, cases closer to the present such as Abdul Hamid bin Saad v Aliyasak Ismail (1999) 1 AMR 105 and Hatijah bte Rejab v Abdullah bin Saad (2004) 2 AMR 665 point to a resergence of respect for the Malay custom, notably by the ruling of Aluddin Sheriff J in the former. This development is to be welcomed, for surely such a unique, bureaucracy-free way of affecting transactions should be allowed to continue and make its mark as a unique feature of the land law of our proud nation, Malaysia.

When thoughts become a crime

In George Orwell’s dystopian novel, Nineteen Eighty-Four, a government attempts to control not only the speech and actions, but also the thoughts of its subjects, labeling disapproved thoughts with the term thoughtcrime or, in Newspeak, “crimethink”. (Wikipedia, 2008).

Might this situation morph into reality? No, one might have thought (pun not intended) that it wouldn’t, after all we are living in a world of democracies, of rule of law, Malaysia included.

According to this news report, five young British Muslim men of Pakistani descent, Irfan Raja, Awaab Iqbal, Aitzaz Zafar, Usman Malik and Akbar Butt were jailed for between two and three years each by the Old Bailey of the United Kingdom for downloading and sharing extremist terrorism-related material, in what was one of the first cases of its kind to be prosecuted under Britain’s notorious Terrorism Act 2000, specifically Section 57(1) which states “A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.” Originally these men were charged under Section 58 of the same Act, relating to collection of terrorist material, however, this was amended to Section 57.

What “articles” here in Section 57 is left unexplained by the Act. It has been left to the United Kingdom authorities themselves to interpret, and they have interpreted such freely, no wonder then, giving rise to criticism, especially from within the UK Muslim community, that the section is being abused to persecute young Muslim men without any clear evidence as to their involvement in terrorist activities.

These five men however, were freed recently by the British Court of Appeal. Reading the judgement of Lord Phillips, it is clear that the case turned on the meaning of the words “possession for a purpose connected with the commission of an act of terror”. The prosecution in the case referred to a source of the purpose for which the Section in question was enacted, and gave such scenarios such as bombs, explosive material, etc and the need to prevent possession of such material to prevent such occurrences from happening. However, questions arose as to wither extremist literature fell under the scope of this Section of the Act. One imagines a hundred different reasons why extremist literature, itself a controversial form, might be gathered, terrorism not being one of them. Studies, research etc, can be purposes for which this kind of literature might be kept for, might they?

Ruling that literature did not fall within the scope of the Section, Lord Phillips does everyone, researchers and academicians in particular, a favour. Were merely the possession of literature of any kind, be it “extremist”, obscene or political, etc a crime, then society would not be quite far from the situation inspired by George Orwell’s dytopian novel above. Thankfully, some sanity is left in this world as respect for one of the fundamental human rights, the right to think freely, if not speak freely, is respected and upheld in the rush to prosecute terror.

Calling for Contributors…

At the moment, I’m looking for contributors from across the spectrum. You are most welcomed to apply. At the moment, there are two contributors, myself and a classmate. If you’re doing Syariah or Civil, it would also be great!

Criteria

• Currently an undergraduate or post-graduate student reading Law in Malaysia;
• Enthusiasm and willingness to share experiences with the readers;
• Prepared to learn and respecting the opinions of others;
• Believes that you can make a difference.

Responsibilities

Contributors, as the name imply, are required to regularly make entries on an area of law or student life of their choice. Due to statutory prohibitions, however, all posts are not to show sympathy towards any political parties - not even a slight hint.

When writing entries, you may write on the law as it is or the law as it ought to be. Be mindful that your piece does not enter the realms of politics. Tread carefully, or just don’t touch the issue, when you’re writing on religion, race and other sensitive issues. Above all, remember that you are writing Law for Law Students from a Law Student’s (your) perspective.

This is not a political blog. There are numerous others who caters for politics.

Benefits

1. Did you know, the more you share your knowledge, the better you become? Tested this theory and amazed with the results.
2. You retain the rights over the materials you used - only the article as it is contributed will have it’s copyright attributed to the blog. Meaning, you can write on the same topic again, possibly with a different angle, in the future or for other works.
3. Having your name here is cheap (if not free) publicity.

What are you waiting for?

If you feel that you are qualified, feel send an email to me now: cramminus@yahoo.com

ILAC 101

You’re attending the first seminar on contract law. In that 2 hour session, the lecturer went on and on. She finishes it with giving out questions before leaving the hall. How do you answer it?

Despite many undertakings, as far as my personal experience is concerned, many law students’ organisation or the Student Representative Council Secretariat fail to conduct study skills and exposures, especially for the freshman. I’m not bashing them, it’s just my finding. The scenario is so for UiTM Kedah and UiTM Malaysia. The only programme organised would be a motivational course for students who failed to obtain a CGPA of 2.50. I personally doubt that they cover study skills and techniques tailored especially for law students. Probably they don’t have the time or funding.

I hope that this entry would shed some light for freshmen and freshwomen - and their seniors who still search for the golden formula.

ILAC? What’s that?

Law school formulated a simple guide in tackling law papers and assignment. This method have been used over and over again by both students and practicing professionals. If you open up case law, even judges follow this guide. It’s called ILAC, or IPAC. ILAC stands for:

• Issue;
• Law/Principle;
• Application or Arguments; and
• Conclusion.

The rationale is so your essay or answer would be written in a logical manner. ILAC also helps you to make sure you’re using the right application and arguments.  Besides helping you, ILAC assists the examiner on how to award and distribute marks. This makes the manipulation of ILAC even more critical.

ILAC in Action

It’s one thing to just talk about the benefits and rationale of ILAC. It’s a whole new thing when it comes to application. Let’s see briefly how law students and practitioners apply this basic guideline.

A. Issue
Every question must have an issue. If not, there would not be a reason to write and answer, will there? In normal college writing, the issue is an equivalent to you thesis statement. It serves as an anchor and guide on tackling the problem. There is no point to discuss everything you learned in Contract Law just to answer a problem on validity of acceptance. You don’t have time, knowledge or even energy to do so. An issue usually is only one sentence. E.g. Whether the contract formed between A and B, who is a minor, valid.

While an issue usually one sentence, a question can have more than one. If it’s a contract law exam, besides the capability to enter into contract, the scenario could include terms and conditions, consideration etc. Be mindful of the fact that there can be “hidden” issues besides the obvious. The ability to identify these underlying issues distinguishes an average student and an A student - to quote my former Contracts Law I lecturer.

In terms of mark, Issue generally bears 1 mark. This varies according to institutions and type of question.

B. Law or Principles

The next thing you need to do is to identify the appropriate legislation or case law. Example in Land Law, we have the National Land Code to prescribe the alienation process, powers of the State Authority and rights of the proprietor. Where relevant, you’ll need to cite the related provisions. Even for a comprehensive Code (as opposed to “Act”, “Enactment” or “Ordinance”), there are situations where the National Land Code is silent. Example what constitutes fixtures and what are chattels? To determine this, we have incorporated common law to fill in the lacuna. Be warned, though: Many examiners would not award marks for “copy and paste” of statutory provisions. They expect you to paraphrase it without changing the gist and critical details.

A factor which distinguishes law students and laymen are cases. Anyone can buy a statute from the bookstores. You, me, the guy in the house next door, the lady walking past you. Anyone. Our knowledge and understanding of case law sets us apart. Case law, examples Holland v Hodgeson and Teh Bee v. K. Maruthamuthu, act as authorities to justify our claim and rebut our adversary’s where statutory provisions are ambiguous or silent. But this is not the means to an end. Rather, it serves as a foundation of the end.

More marks are allocated in this section compared to Issue and Conclusion. Be reasonable when your citing statutes and cases. Remember that you can list all the cases under the sun, but the examiner can only give so much marks.

C. Application and Arguements

What distinguishes an A student from a regular student is the way one argue in one’s answer script. This have been told to us by our lecturers over and over again. Even in real life, cases are won and lost because of arguments presented in court. For those of you who intend to depart from precedent, here’s your chance. Most examiners expect you to justify your stand and apply all the law/principles you cited earlier. For the purpose of academics, you are expected to follow the precedent. But you are also given room to criticize a judgment.

To apply, you really have to read the cases themselves. Not a summary you can get from the text book. Only by reading the judgment itself can you for yourself see why this judge adopted this decision and all other issues raised. Unfortunately for us, there is no shortcut.

Remember that your arguments should be in logical order. While it’s easier and more tempting to adopt whatever notes you read, it’s just good enough for you to pass. But memorizers isn’t what the legal profession needs. We need more law students, lawyers and judges who have substance as well. This is where, to quote my former Administrative Law lecturer, UiTM and MU law students are different: the later have more substance compared to the former. And I personally agree.

D. Conclusion

As with any novel and essays, you must end your answer with a conclusion. To do this, you simply take the all the issues you mentioned and reword it based on the direction you took. Example: The contract between A and B is void because… .

Your conclusion carries about one mark or so each.

Use ILAC Tailored to Your Needs

Remember that what I’ve shared with you is merely the tip of an iceberg. As you progress, you will be able to manipulate this formula to create that A essay. There are, however, many other issues which I have not raised here. Examples: how do you apply when there are multiple issues? What language should you use when writing the essay?

As time progress, I’ll shed some light here. I would like to recommend the book Exam Skills for Law Students 2nd Edition by Marry McVea & Peter Cumper. It’s printed by Oxford University Press. I got my copy from Kinokuniya KLCC for RM59.90. For UiTM Law Students, I saw a copy of the same book in PTAR2.

For now, happy writing and good luck.

From the Law Student’s Desk

“What course are you talking?”

“I’m reading Law.”

“Wow! You must be pretty smart!”

INTRODUCTION

The conversation above is pretty much a typical scenario you’d face, especially when you’re a law student. Society’s perception of lawyers are like how it was just after Merdeka. But back then, law schools were limited in Malaysia. The courses offered were LL.B. (Hons) U of London Exernal programmes - if any. Fast forward it to 2008, we have many universities and institutions of higher learning who offer their own Law degree or diploma. Some in the private sector still conduct external LL.B. (Hons) programme but sown to meet their needs. While the number of Law Students in Malaysia continue to increase, the stigma will hardly change.

Briefly about me. I’m a 2nd year Legal Studies undergraduate in Universiti Teknologi MARA Malaysia (UiTM). Before starting out in Shah Alam in July 2006, I did the UiTM Law Foundation (Pre-Law/PI005) in UiTM Kedah for 3 semesters. While I’ve never been on the Dean’s List before, this blog isn’t meant to parade my results or knowledge. On the contrary, this initiative is meant to share ideas and experiance among law students in Malaysia. That is why this blog will be written to cater for that very target.

Organisation of Blog

For easy reference, entries will be categorized (duh!). At this moment, the types of entries which you can expect are:-

• Blog Administration - Involves the management, expansion etc. of this blog. From time to time, announcements would be made under this category.
• Study Skills & Exam Techniques - A common problem we share, especially when you’re in the 1st Semester/Year, how on earth do you study law? Are you going to memorise each case word by word? How do you answer your exam questions? From time to time, I’ll share my findings on this matter.
• From the Eyes of the Law Student - This category will be filled with comments on current issues, legally or otherwise. Since this blog is for Law Students, I wouldn’t really be writing on the political aspect. There are a plethora of blogs on politics on the internet. All you need to do is Google.
• Outside Black-and-White - Look forward to entries on living and life skills during and after study. Studying Law isn’t just about going to classes and heading home. As a human being, you have certain needs and skills which you must acquire. After all, University is meant to prepare you for life.
• From the Faculty - For those of you who’d like to share activities organised by your faculty/school, feel free to contact me so I can include them in this blog. Consider this free publicity, especially when you’re tight on budget. Will need the details to write up something alluring.
• Applying the Law - As much as I would like to drop the lectures at the main gate, what’s the point of learning about law if you’re not going to apply it in life? To me, that’s the only thing which would make a dull programme more lively. In the future, I intend to invite more voluntary contributors to write on this area. Suggestions on applying Donoghue v Stevenson and Rylands v Fletcher as you live your daily life would be interesting. And when you do end up practicing, I’m more than certain it’ll be very handy for you.

Private Initiative

As a reminder, this From the Law Student’s Desk is a private initiative taken by a Law student. No money is involved unless you intend to advertise your service or product. While I may be studying in UiTM, the posts here are not influenced by or confined to that institution. This is a Law Students’ blog by a Law student for Law Students in Malaysia. Even so, a degree of censorship will be undertaken to prevent any conflict with any law enforced in Malaysia - especially the University and College University’s Act (AUKU).