According to 250 In-House Attorneys, This is a Must Have Legal productivity is being slammed by a toxic work culture according to a recent survey from across the pond. This may come as no surprise to legal workers here in the United States, as the relentless pressure of law practice often creates a toxic culture in law departments. In many cases, this comes from the management level with toxic bosses and “pie-duckers” rampant in some companies. What can be done? Ref0rm is needed, but the legal profession is not known for embracing change, and when it does, it often comes glacially rather than when needed to ameliorate the real problems at hand.

(Messrs R. Jayabalan) The Federal Court had held in   Ang Ming Lee & Ors v.  Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan [2020] 1 CLJ 162  that reg. 11(3) of the Regulations  that empowered the Controller of Housing to  vary, amend or modify the terms of the prescribed contracts of sale in the Act was ultra vires the Act and that such powers may only be exercised by the Minister personally. The Federal Court decision was given on 26.11.2019. Hot on the heels of that decision was the issue of whether the Federal Court decision would apply  against the Controller’s approvals that were given before the decision. The prevailing view was that as the Federal Court did not issue an order of prospectivity of the decision, the general rule of retrospectivity of court decisions would apply i.e  a court decision is always applied retrospectively unless there is a specific order that the decision is to be binding only on the instant case and as against future cases. This was the approach also applied by the Federal Court in Semenyih Jaya Sdn Bhd   v.  Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561 when holding that s. 40D of the Land Acquisition Act 1960 was  ultra vires   the Constitution and further ordered that the decision was to have prospective effect only. After Ang Ming Lee,  this issue of retrospectivity of Ang Ming Lee  had been consistently raised in similar claims. The purchasers invariably argued that the decision has retrospective effect whereas the developers argued that to hold Ang Ming Lee to have retrospective effect would be grossly unfair to the developers as the Controller’s approval had been obtained at a time when the law was still deemed as valid and the developers should not be penalised due to the changes in law following the Federal Court decision. The High Courts were not moved and have almost consistently held that Ang Ming Lee  to have retrospective effect as there was no order of prospectivity issued. As this was a recurring issue with wide implications and of general public interest, there was hope and expectation for a decision from the Court of  Appeal or Federal Court to bring an end to this issue. We acted for a purchaser whose agreement in Schedule H also involved Controller’s approval that was given before the decision in Ang Ming Lee; the approval was in fact given even before the agreement was executed. The purchaser had sought rescission of the agreement and refund of the monies paid and for expenses incurred. It was also contended that the agreement was null and void for being in breach of the Act from its inception. The purchaser had relied on Ang Ming Lee  and the principles of retrospectivity of decision. The developer took the contrary position and sought to distinguish Ang Ming Lee on the grounds that here, the approval was given before the agreement, unlike in Ang Ming Lee and relied on the doctrine of severability to save the agreement from being held null and void.  The High Court held that Ang Ming Lee has retrospectivity effect and the Controller’s approval here given on 20.5.2015  was not valid. The agreement was also held as null and void and rescission was allowed. The decision may be seen at [2020] 6 AMR 346. The developer filed appeal to the Court of Appeal and raised similar contentions. The appeal was unanimously dismissed on 5.4.2021. The developer then filed application for leave to appeal to the Federal Court. The questions proposed also included an invitation to revisit Ang Ming Lee  and to clarify the position on whether the decision was to be applied retrospectively and the Court to consider the implications of such retrospectivity to the construction industry. The application for leave was recently dismissed. It is also worthy to note that two of the judges who heard the application for leave was also in the Federal Court coram that delivered the decision in Ang Ming Lee. From this it appears quite clearly that  Ang Ming Lee  is indeed to be applied retrospectively and that there should not be any doubt on this anymore. It also makes common sense that a law that is found to be  illegal should be deemed illegal at all times since its inception. The retrospective application also serves the social objective of the Act to protect house buyers  – all buyers at all times!   Messrs R. Jayabalan

(R. Jayabalan) A key question when drafting a claimant’s statement of case before the Industrial Court is on the relief to be sought. Very often, by the time the  claimant’s representation for unfair dismissal was referred by the minister  to the Industrial Court, the claimant would have gained new employment elsewhere and going back was no longer an attractive option. Question then arises as to whether he should still ask for reinstatement or to seek compensation. Often lawyers have to advise the claimants to ask for reinstatement in the hope that the Court would hold that there was no longer industrial harmony between the claimant and the ex-employer and compensation would be appropriate in lieu of reinstatement. This conundrum came about due to the diverging views on the implication  to the claim  if the claimant no longer wishes to go back. Sec. 20(1) of the Industrial Relations Act  1967 states that a workman when lodging representation may make representations “to be reinstated”. Sec. 30 gave jurisdiction to the Court to order “reinstatement”.  Following these express provisions for reinstatement as the remedy, conflicting views have developed.   On one side, cases have  held that if the claimant failed to plead reinstatement or if in the course of the trial  changes his mind about going back and prefers compensation, the Court ceases to have jurisdiction and the claim cannot be heard anymore.  This view was led by the High Court decision in Holiday Inn, Kuching  v  Elizabeth Lee Chai Sok [1992] 2 CLJ (Rep) 521. On the other side is the view that the claimant’s desire on reinstatement does not affect the Court’s jurisdiction. This because the Court derives its jurisdiction from the reference made by the minister under sec 20(3) of the Act and does not hinge on the claimant’s desire for reinstatement. Once the minister’s reference was made, the Court gains jurisdiction and  must decide on the claim. The claim cannot be abandoned. This view was led by the High Court decision in The Borneo Post Sdn Bhd  v  Margaret Wong [2001] 8 CLJ 758. The conflicting views and the resulting state of uncertainty have caused claimants to be prudent by asking for reinstatement and maintaining this desire  at the trial, especially in cross-examination – even when in truth, the claimants do not desire to go back. A facile plea was unfortunately (and regrettably) made necessary in order to preserve the claim. This conundrum is now resolved. The Court of Appeal recently in Sanbos (M) Sdn Bhd  v  Gan Soon Huat  [2021] 3 AMR 833 clarified the issue and upheld the second view as the correct position. It was held that the Industrial Court was seized with the jurisdiction to hear the dispute once the minister made the reference under sec. 20(3). It is the minister’s reference that invested the  Court  with the jurisdiction and not the claimant’s desire for reinstatement. The  Court does not cease jurisdiction merely because reinstatement was not pleaded or no longer desired. However, when making the initial representation to the Director General under sec. 20(1)  the claimant must  still ask to be reinstated  as that is a specific requirement under the Act. Once the dispute  is referred to the Court by the minister there is no longer specific requirement in the Act for the claimant to plead reinstatement. The Industrial Court Rules 1967 too did not impose an obligation to plead reinstatement. Hence, even if the claimant changes his mind and no longer desires reinstatement at the hearing, the Court still has the jurisdiction to proceed with the hearing as under sec. 30(6) the Court has very wide discretion in awarding reliefs and is not restricted to the specific relief claimed by the claimant. With this wide discretion, the Court  may still award monetary relief even if reinstatement was not asked for.  The Court cannot question its own jurisdiction simply because the relief of reinstatement was not asked for. The Borneo Post Sdn Bhd  v  Margaret Wong  was held as representing the correct view. This is indeed a welcome decision from the Court of Appeal and one that has been waited for long by Industrial Court practitioners.  The decision is  consistent with the objective of the Industrial Relations  Act 1967 as a social legislation whose paramount objective is to protect the interest of the employees  and also in line with the mandate given to the Industrial Court in sec. 30(5) to act in accordance with equity, good conscience and substantial merit of the case without regard to technicalities and legal form. Following this decision, the path is now clear for claimants and a facile plea for reinstatement is no longer necessitated.  Messrs R. Jayabalan

Siapakah “pekerja”? “Pekerja” adalah orang yang memasuki kontrak pekerjaan dengan seorang majikan dengan  upah tidak melebihi RM2,000 sebulan. “Upah” adalah gaji pokok tidak termasuk komisen, elaun, bonus atau bayaran lebih masa. “Pekerja” juga adalah orang yang tidak kira upah bulanannya dan melakukan kerja kasar seperti tukang atau perantis; mengendalikan kenderaan pengangkutan penumpang atau barangan untuk perniagaan; menyeliakan pekerja kasar dengan majikan yang sama; atau bekerja di sebuah kapal yang berdaftar di Malaysia selain dari pegawai bertauliah atau bersijil; dan pekerja domestik[1].    2. Apakah yang perlu segera dilakukan oleh pekerja selepas dihentikan kerja? Pekerja tersebut mesti membuat aduan kepada Pejabat Tenaga Kerja terdekat dalam tempoh 60 hari selepas dimaklumkan (secara lisan atau bertulis) pemberhentian kerjanya untuk membolehkan siasatan dijalankan[2]. 3. Bagaimana dengan pekerja yang menerima upah melebihi RM2,000? Walaupun Akta Pekerja 1955 terpakai sepenuhnya terhadap pekerja yang menerima upah tidak melebihi RM2,000 sahaja, pekerja dengan upah melebihi RM2,000 tetapi tidak melebihi RM5,000 sebulan  masih boleh membuat aduan kepada Pejabat Tenaga Kerja untuk menyiasat pertikaian mengenai upah atau bayaran tunai lain dibawah kontrak pekerjaannya. Peruntukan Akta mengenai kuasa Ketua Pengarah Buruh  untuk menyiasat aduan pekerja (Bah XV) dan prosedur siasatan (Bah XVI) masih terpakai untuk pekerja sedemikian tetapi peruntukan lain Akta tersebut tidak akan terpakai[3]. Hak lain pekerja sedemikian  adalah masih dilindungi di bawah Akta Perhubungan Perusahaan 1967 dan undang-undang kontrak lazim.      4. Bagaimana Ketua Pengarah Buruh menjalankan siasatannya? Ketua Pengarah akan mengambil aduan bertulis daripada pekerja dan tuntutannya. Selepas meneliti aduan tersebut Pengarah akan memaklumkan majikan mengenai tuntutan itu. Kemudian,  pada tarikh perbicaraan yang ditetapkan, Pengarah akan mengambil keterangan bersumpah pekerja, majikan dan saksi masing masing. Keterangan mereka akan diperiksa melalui pemeriksaan soalbalas dan rujukan kepada dokumen-dokumen seperti surat perlantikan kerja, surat pemberhentian kerja, nota siasatan dalaman dan sebagainya[4]. Selepas itu Ketua Pengarah akan memberikan keputusannya dalam bentuk perintah bertulis. 5. Sekiranya tuntutan pekerja dibenarkan, apakah perintah yang akan diberikan oleh Ketua Pengarah Buruh? Sekiranya Ketua Pengarah memutuskan bahawa penamatan kerja tersebut tidak mengikut terma-terma di surat perlantikan kerja dan/atau tidak mematuhi Akta Kerja 1955, beliau boleh mengeluarkan perintah untuk majikan membayar gantirugi dalam bentuk gaji ganti notis penamatan kerja, faedah penamatan kerja mengikut tempoh pekerjaan, gaji ganti cuti tahunan dan baki gaji (jika ada)[5]. 6. Bagaimana jika majikan tidak  membayar gantirugi yang telah diperintahkan? Majikan akan diperintahkan membayar gantirugi tersebut dalam tempoh  14 hari. Jika majikan masih tidak membayar gantirugi tersebut selepas 30 hari, faedah pada kadar 8% setahun akan dikenakan dari hari ke 31 sehingga penyelesaian penuh[6]. Kemungkiran pihak majikan mematuhi perintah tersebut adalah satu kesalahan yang boleh dihukum dengan denda tidak melebihi RM10,000 dan juga denda tidak melebihi RM100 sehari sepanjang perjalanan kesalahan tersebut[7] . Pekerja juga boleh memohon kepada Ketua Pengarah untuk perintah tersebut didaftarkan sebagai perintah Mahkamah Sesyen atau Mahkamah Majistret untuk membolehkan pekerja melaksanakan perintah tersebut sebagai satu penghakiman mahkamah[8]. 7. Bagaimana jika pekerja atau majikan tidak berpuashati dengan perintah Ketua  Pengarah Buruh tersebut? Mana-mana pihak yang tidak berpuashati dengan perintah tersebut boleh merayu kepada Mahkamah Tinggi terhadap perintah tersebut dan rayuan tersebut  mesti difailkan dalam tempoh 14 hari daripada tarikh perintah tersebut[9]. 8. Semua rujukan di atas nampaknya adalah kepada Ketua Pengarah Buruh, jadi apakah yang dimaksudkan sebagai “Mahkamah Buruh”? Akta Kerja 1955 tidak merujuk kepada atau mengandungi terma  “Mahkamah Buruh”. “Mahkamah Buruh” hanyalah satu nama atau panggilan tidak rasmi yang merujuk kepada perbicaraan yang dijalankan oleh Ketua Pengarah Buruh tersebut. R. Jayabalan [1] Sek 2 dan  Jadual Pertama dibawah Akta Kerja 1955 [2] Sek 69(3) [3] Sek 69(B) [4] Sek 70 [5] Sek 12, 13, 60J dan Peraturan  Kerja (Faedah Penamatan dan Pemberhentian Kerja    Sementara) 1980 [6] Sek 69(3A) [7] Sek 69(4) [8] Sek 75 [9] Sek 77

The Act was amended in early 2020 and gazetted on 20th February 2020. The operation of the amendments were however made subject to the Minister of Human Resources appointing the effective date. The Minister has now decided that most of the amendments will be effective from 1.1.2021. Here we highlight some of the key changes made to Part VI and VII of the Act in respect of the representation for unfair dismissal under sec. 20 and the powers of the Industrial Court when hearing the dispute and in issuing the Award : 1. Sec. 20 (2) and (3) – upon receiving the representation from the workman and when the reconciliation attempt has failed the Director General now must refer the representation directly  to  the Industrial Court. The DG no longer required to notify the Minister . Previously only the Minister may refer the representation to the Court. The Minister is no longer involved. The DG now has a duty to refer the unresolved representation to the Court.2. Sec. 29(da) – the Court to proceed to hear the dispute   even if there is a dispute on the date of dismissal of the workman. Previously when there is a dispute on the date and it was shown that the date of dismissal was not the date in the representation, the Court ceases to hear the dispute. Now, the Court may continue to hear and even determine the date of dismissal.3. Sec. 29(ea) – Court can continue to hear the dispute even if the workman had died during the proceedings. Previously the Court ceases to hear the dispute when the workman dies.4. Sec. 30(1A) – the Award is to carry interest at 8% p.a or lesser rate from the date of the Award till satisfaction. The Court also  has the powers to determine any other date for the commencement of the interest on the application of the aggrieved party upon receipt of the Award.5. Sec. 30(6B) – For the deceased workman, the award for backwages and compensation may be awarded to the next-of-kin of the deceased.6. Sec. 33A – the procedure of reference to High Court on question of law is now abolished.7. Sec 33B – no stay of proceedings may be ordered against the award for reinstatement. This is a new provision. 8. Sec 33C – a party dissatisfied with the award may appeal to the High Court within 14 days of receipt of the award and the appeal will follow like an appeal from the Sessions Court. This is the main highlight of the amendments here. This has effectively removed the need to apply for judicial review to challenge the Award. All in all, the amendments above are of good value to employees and their family and the whole process of resolving the representation effectively and expediently. There are also other amendments made to other parts of the Act – do check out those amendments as well. R.JAYABALAN

An employer has the right to transfer an employee from one post to another within the company. This is part of the powers of the employer who has a right to organize his business.  But is that power absolute? Is the power subject to restrictions?  This issue   came up before the Industrial Court in Chan Phaik Leng  v.  Meda Healthcare Sdn Bhd [2018] MELRU 2231 . We represented the employee. The employee was employed for 16 years in the company. She started as a Medical Representative in 2000 with a monthly salary of RM2,000. She gained promotions and by  April 2016  had become the Senior Sales Manager with a monthly salary of RM8,000. The company then transferred her to a newly created position Key Account Manager with no change in the salary. She objected as to her the new position was effectively a demotion. The company  defended the change on grounds that the new position was in line with their new business strategy to place more focus on their key customers; it was an equally important position that required experience and expertise  and in the company’s assessment she was the best person.  The company said that it was within  their rights to make the changes to suit the business needs. They refused to retract the transfer  but was prepared to allow her to keep the title Senior Sales Manager so as to appease her. She rejected this and claimed constructive dismissal. The Industrial Court held that under the terms of the contract of employment the company has the right to carry out the transfer; that the company has given the required explanations, it was not a demotion and that she failed to prove that the company’s decision was not bona fide. The claim was dismissed.  The employee applied for judicial review.  The High Court held that the Industrial Court had erred. Although the employer has the powers to transfer/redesignate an employee in the interest of the business, that power is not absolute and subject to restrictions under the law. Amongst others, the transfer should not involve a change in the condition of service to the detriment of the employee – referring to the Court of Appeal decision in Ladang Holyrood  v. Ayasamy a/l Manikam & 16 Ors  [2004] 3 MLJ 339.   Here, there were such changes : her subordinates were removed, she will be doing what she was doing five years before, her job responsibilities were reduced and she will be doing what her subordinates were doing under her. That there was no change in her salary or that she was allowed to keep her old  title was immaterial. The erosion in responsibilities and changes in the condition of service amounted to a constructive dismissal. The Industrial Court award was quashed and she was awarded backwages and compensation. For the full judgment see Chan Phaik Leng  v. Mahkamah Perusahaan & Anor [2019] 6 AMR 19. The company appealed against the decision to the Court of Appeal but the appeal was dismissed. It was held that there was no error in the High Court decision.  This case illustrates that although an employer  has the right to run his business and organize his workforce that right is however not absolute or unfettered and is still subject to restrictions under the law; the objective being the protection of the rights and dignity of the employee. The law will come to the aid of the employee.

When the developer delivers to the purchaser  vacant possession of a house under the sale and purchase agreement that was prescribed under the Housing Development (Control and Licensing) Act 1966 would it be right for the purchaser to expect the actual supply of water and electricity to be available at the house? Or is the developer’s obligation limited to merely applying  for the connection of water and electricity to the authorities? This question came up for determination before the High Court in Bandar Eco-Setia Sdn Bhd  v.  Tribunal Tuntutan Pembeli Rumah & 2 Ors  [2020] 5 AMR 251. The purchasers jointly purchased from the developer a double-storey semi-detached house. Upon completion they collected the keys  from the developer. They later discovered that there was no supply of water and electricity to the house.   They treated  this as not amounting to a valid delivery of vacant possession and filed a claim at the Homebuyers Tribunal for liquidated damages. They claimed that under the agreement the developer is obliged to deliver vacant possession with actual supply of water and electricity within the prescribed period of 24 months. There cannot be a valid delivery of vacant possession until there was actual supply of water and electricity. Following this they claimed for liquidated damages for the period from the expiry of the 24 months till the actual supply of water and electricity to the house. The developer contended  that under the terms of the agreement their obligation was only to apply for the internal connection of water and electricity from the house to the mains for which there was no time frame to apply and they were not obliged to provide actual supply of water and electricity within the 24 months period. The Tribunal agreed with the purchasers and allowed the claim. The developer was dissatisfied with the decision and applied for judicial review to the High Court.  The application came before Wong Kian Kheong J. His Lordship, amongst others, examined the terms of the agreement that was a Schedule I agreement made under reg 11(1A) Housing Development (Control and Licensing) Regulations 1989 of the Act. His Lordship referred in particular to clause 26(1) that defined the manner of delivery of vacant possession. It was stated in clause 26(1) that the developer shall let the purchaser into possession upon the issuance of a certificate of completion and “water and electricity supply are ready for connection to the Building”. His Lordship then referred to the definition of “ready for connection” in the agreement that was defined as “means electrical points and water fittings and fixtures in the said Building have been installed by the Developer and are fully functional and supply is available for tapping into individual building units”.  His Lordship held that the clauses are  clear. A literal interpretation of the clauses indicate that it is the developer’s obligation to provide actual supply of water and electricity to the property when vacant possession is delivered on or before the 24 months period. His Lordship held that to agree with the developer’s contention would be to render redundant the words “water fittings and fixtures in the said building  have been installed by the developer and are fully functional and supply is available for tapping into individual  building units” in the definition of “ready for connection” in the agreement. Such interpretation would also further and advance the object of the Act to protect purchasers. To decide otherwise would be detrimental to the interest of the purchasers. The developer in support of  their contention relied on the Court of Appeal case of Salmah binti Sulaiman & Anor  v.  Metroplex Development Sdn Bhd [1997] 1 AMR 592 that held that the developer’s obligation was only to connect electricity and water mains to the internal electricity and water mains and not the flow of water and electricity. His Lordship held that the decision in Salmah Sulaiman would not apply to the agreement in the instant case as Salmah Sulaiman was decided pursuant to rule 12(1)(l) of the Housing Development (Control and Licensing) Rules 1970 and clause 18 of the agreement therein. The said rule 12(1)(l) and clause 18 are clearly different from the relevant clauses in the 1989 Regulations and the definition of “ready for connection” in the current  agreement. His Lordship further held that to accept the developer’s contention would be contrary to the purpose of the Act and the 1989 Regulations to protect the purchasers because the purchasers cannot occupy the house without actual water and electricity supply to the house. Such outcome would be clearly unjust to purchasers who have fulfilled all their obligations to the developer under the agreement. The decision of the Tribunal was upheld and the judicial review application was dismissed. This is probably the first reported decision that had decided that vacant possession must be accompanied with actual supply of water and electricity to the house, and not merely making available the connections. This is a decision that very much  advanced the interest of purchasers in accordance with the object of the Act and should be welcomed by the public. Hopefully this issue is now put to rest. R. Jayabalan

Two days ago the Parliament tabled the Malaysian version  COVID-19 Bill. It appears that the Bill may have come in late but then again better late than never. The following are the highlights of the Bill. The proposed Act is to be in operation for two years but may be extended further by the Prime Minister.  A string of statutes are amended in one fell  swoop. The provisions of the Act are also to supersede the provisions of other written laws to the extent of inconsistency.    Contractual protection This Part is deemed to be in operation since 18.3.2020 and delivers the contractual protection to parties who failed to meet their contractual  obligations due to the laws made to control the spread of COVID-19. Such failures would not entitle the other party to exercise their rights to remedy under the contract. The contracts are however limited to those in the Schedule and may be amended later. The contracts currently covered are contracts for  construction and supply of workers and materials for construction, professional services, lease or tenancy of non-residential property, event contracts and pilgrimage related.   Any disputes arising from failures to meet the obligation during this period may be resolved by way of mediation process determined by the Minister of Law. The mediation process is however not couched as mandatory.    This contractual protection would not affect the actions already taken in relation to the failures  before the publication of the Act.   This makes one wonder how effective is the protection going to be and whether the delay in enacting this Act is going to cause irreparable harm to the affected parties. Extension of limitation period Part III – VI deals provides for extension of limitation. This part is deemed to be in operation since 18.3.2020 and continues until 31.12.2020. The affected laws are Limitation Act 1953, Sabah Limitation Ordinance, Sarawak Limitation Ordinance and the Public Authorities Protection Act 1948.  For the Limitation Act, the limitation period under s 6 that expires during the period 18.3.2020 to 31.8.2020 are automatically extended to 31.12.2020.  For the Public Authorities Protection Act, the limitation that expires between 18.3.2020 to 31.8.2020 are similarly extended to 31.12.2020. Extending the amount of indebtedness for insolvency proceedings Part VII deals with insolvency actions and is given limited life time till 31.8.2021 only and may be extended later by the Minister. The threshold for bankruptcy actions is extended to RM100,000 without affecting the actions already commenced before the publication of this Act. Protection to hirers Part VIII deals with modifications to Hire Purchase Act 1967 and is to be in operation between 1.4.2020 to 31.12.2020. The owner under the hire purchase agreement may not exercise the power of re-possession for any default of instalment during the period 1.4.2020 to 30.9.2020 without affecting actions already taken before the publication of this Act. Protection to tenants Part X modifies Distress Act 1951 and is to be in operation from 18.3.2020 to 31.12.2020. A warrant of distress is not to include arrears of rent during the period 18.3.2020 to 31.8.2020 without affecting distress proceedings already commenced. Protection to housebuyers Part XI modifies the Housing Development (Control and Licensing) Act 1966 and is deemed to be in operation on 18.3.2020. This covers the statutory contracts of sale entered into before 18.3.2020. The developer is not allowed to impose late payment interest on purchasers who failed to pay any instalment for the period 18.3.2020 to 31.8.2020 due to the measures  under the movement restrictions laws. The purchaser may also apply for the extension of the period to the Minister and the Minister may extend the no-interest period up to 31.12.2020. The period 18.3.2020 to 31.8.2020 is also excluded from the computation of the time for delivery of vacant possession and payment of liquidated damages for late delivery. The Minister may extend the period until 31.12.2020 upon the application of the developer.  A purchaser who receives the  notice to take vacant possession during the period 18.3.2020 to 31.8.2020 is deemed not to have taken such possession.    The computation of defect liability period also excludes the period 18.3.2020 to 31.8.2020 and may be extended by the Minister upon the application of the purchaser. The limitation period for buyers to file a claim at the Homebuyers Tribunal that expired during the period 18.3.2020 to 9.6.2020 is extended from 4.5.2020 to 31.12.2020 and the Tribunal shall have jurisdiction over such claims. Modifications to the Industrial Relations Act 1967 Part XII deals with this. The period 18.3.2020 to 9.6.2020 is excluded from the calculation of the statutory period for lodging of representation, according recognition of trade union and report to the Director General.    Modifications to the  Courts of Judicature Act 1964 and related Acts Part XVI deals with this and is to be in operation from 18.3.2020. The Chief Justice  empowered to issue any direction relating to the business of the Court as may be necessary in the interest of justice, public safety and health or for other sufficient reason. A new provision is inserted empowering the Chief Justice –  in the interest of dispensation of justice, public safety and health – to modify any provision of the rules of court or suspend the application of such rules as may be necessary to do complete justice and to ensure that the administration of justice is carried out. Similar amendments are also made to the Subordinate Courts Act 1948 and the Subordinate Courts Rules Act 1955. This amendment that empowers the Chief Justice in respect of the rules   is likely to attract spotlight from the Bar as the rules of courts have primarily been within the ambit of the Rules Committee in which the Bar is also represented.    General powers to extend time and alternative arrangements for statutory meeting Part XIX empowers the Ministers  responsible for any Act to extend the statutory time for carrying out of statutory obligations that were not possible to be performed during the period 18.3.2020 to 9.6.2020 due to the

The High Court in SS Precast Sdn Bhd  v  Serba Dinamik Group Bhd  & Ors [2020] MLJU 400 held that  the Court has the jurisdiction to direct hearing by way of video conference without the consent of parties and that unaffirmed affidavits may be used in  proceedings. The decision was given by Wong Kian Kheong J on 26.4.2020. The facts. The Plaintiff had  obtained judgment in default of defence against the defendants on 28.3.2020. On 14.4.2020, the defendants filed applications to set aside the default  judgment with a certificate of urgency supported by  unaffirmed affidavits. The Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) Regulations 2020 (‘Covid-19 Regulations’) were in force  by then.   Following the Court’s enquiry, all parties agreed for the applications to be heard by way of video conference through Skype. At the hearing on 17.4.2020, counsel for both parties again recorded consent for hearing by way of video conference and for the use  of unaffirmed affidavit (with the undertaking that a properly sworn affidavit will be filed upon cessation of the Covid-19 Regulations).  The Court issued the necessary directions  for hearing and also  issued an ad interim stay of execution with conditions that included the defendants depositing a certain sum of money with the Plaintiff’s solicitors as stakeholders.    Three days later, the Court was informed that the Plaintiff amongst others, was not agreeable to the hearing by way of video conferencing and the use of unaffirmed affidavits.  It was contended that the court had no power to hear the applications by video conference and the court cannot consider the unaffirmed affidavits. The Court deliberated on the issues. It was held that as the Plaintiff’s counsel had consented and also actively participated  in the proceedings, the Court could proceed by  way of video conference. The Court then deliberated whether the Court could have directed hearing by way of video conference if the Plaintiff had objected and held that the Court had the power to issue the direction even if the Plaintiff had objected. The Court referred to the Defendant’s  right of access to justice under Article 5(1) of the Federal Constitution  and that all subsidiary legislations including the Rules of Courts 2012 must be consistent with the Constitution.  O. 32 r 10 and r 11(1)  provides the discretion to the Court to issue directions as the Judge thinks fit in order to dispose a matter and the overriding consideration was the interest of justice –  consistent with Art 5(1) and O. 1A.  In view of the urgency  and the movement restrictions, hearing by video conference was necessary and consistent with the defendant’s fundamental  right of access to justice under Art 5(1).  Not allowing hearing by video conference due to objections by the Plaintiff  would render illusory the Defendant’s fundamental right to have access to justice.  Hence, even if the Plaintiff had not given their consent, the Court still had the power to order hearing by way of video conference.   On the use of unaffirmed affidavits, the Court held that pursuant to O. 41 r 9(2) the Court has the discretion to allow the use of such affidavits in the interest of justice. In view of the movement restrictions that had hindered access to the Commissioner of Oath the Court may allow the use of unaffirmed affidavits provided that the party’s counsel give an undertaking that a sworn affidavit similar to the unaffirmed affidavit will be filed after the lapse of the movements restrictions.    This case is of interest as it is the first case that decided  on the validity of proceedings by way of video conference. The general opinion has been that in the absence of clear provisions the validity of hearing by way of video conference could be brought to question and one way to overcome this had been by getting the consent of all parties.  This pioneering decision by Wong Kian Kheong J however has now decided that consent is not a pre-requisite  and the Court has the power to issue such direction even without consent.   This case is also notable for allowing the use of unaffirmed affidavits. Whilst defective affidavits  had been used before in proceedings with the leave of Court the affidavits were however affirmed but defective for some other reasons. This case could probably be the first that allowed an unsworn affidavit to be used under O. 41 r 9(2). In appreciating the decision, it is important to note the overriding background fact – the Covid-19 outbreak, movement  restrictions and the Regulations that were in force. The Court probably had to find an effective  way to ensure that access to  justice was given to the parties even under such limiting background and hence judicial creativity and innovation was  required. Justice and access to justice was the overriding consideration and rightly so.    JAYABALAN RAMAN KUTTY

The Bar Council on 23.5.2020 issued a circular with the proposed amendments to the three rules received from the judiciary on 21.5.2020. Members were invited to provide feedback by 12.00 noon 2.6.2020. The amendments principally is to facilitate the conduct of proceedings via remote communication technology (RCT). Key amendments to the Rules of Court 2012 A new O. 33A is introduced and would include the followings: (1) The Court may direct any proceedings to be conducted via RCT. The RCT is as approved by the Chief Justice. The direction can be given by the Court on its own motion or upon the application of any party. (2) Appearance of any person or parties, evidence of witness or prisoner may be taken via RCT from a specified place on a specified period. The Registrar must be satisfied that sufficient administrative and technical facilities have been put in place. Examination of any person or witnesses may also be directed to be taken via RCT. (3) The direction for proceedings via RCT may be revoked if (1) the RCT stops working or there would be unreasonable delay to wait until a working system becomes available; (2) it was necessary to ensure a fair hearing to the parties; (3) there has been a material change in the circumstances; or (4) it was necessary in the interests of justice. (4) The Registrar may direct the proceedings via RCT to be broadcast to members of the public (5) Judgment or order pronounced in the RCT proceedings is to be treated as if delivered in open court. (6) The direction for proceedings via RCT may also be given during the pre-trial case management (7) If there is a request, the hearing via RCT may be conducted on a weekly holiday or on a public holiday. (8) Unless otherwise provided, application for leave is to be dealt with without any oral hearing. In exceptional circumstances, direction may be given for the application to be dealt with by oral hearing. (9) Examination of witness out of jurisdiction may also be permitted to be done via RCT. Key amendments to the Rules of the Court of Appeal 1994 As follows: (1) Application for leave to appeal may be dealt with without any oral submission unless otherwise directed. (2) If there is a request, the cause or matter may be heard via RCT on a weekly holiday or on a public holiday. (3) A new rule 95A is introduced to enable the Registrar to direct any matter to be heard via RCT and the rules to be applied for RCT proceedings. The Registrar may give the RCT directions on his own motion or upon the application by any party. Key amendments to the Rules of the Federal Court 1995. As follows : (1) Application for leave to appeal may be dealt with without any oral submission unless otherwise directed. (2) The decision on an application for leave is final and conclusive and no re-hearing unless there are exceptional circumstances. (3) A new rule 127A is introduced to enable the Registrar to direct any matter to be heard via RCT and the rules to be applied for RCT proceedings. The Registrar may give the RCT directions on his own motion or upon the application by any party. This note is just to highlight the key proposals for easier understanding and to facilitate feedback. Some of the proposals have far reaching implications (we are not saying they are bad!). We should all take time, study the proposals and provide our feedback.