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12/10/2009

Malaysia's policies and judicial screw ups

I have encountered 2 different stories today, one about the judicial system in Malaysia while the other about a policy they are adopting to curb petrol smuggling.

The first article source from the Channel News Asia Forum and believe me this is what they want to implement.

KUALA LUMPUR, MALAYSIA: Foreign-registered vehicles will only be allowed to pump a maximum of 20 litres of fuel when travelling within a 50km radius from the border, said Domestic Trade, Co-operative and Consumerism Minister Datuk Seri Ismail Sabri Yaakob.

Enforcement authorities at the checkpoints were also directed to ensure such vehicles leave the country with no more than 20 litres of fuel in the tank, he said.

Ismail added that the directive would be implemented soon.


Ministry officers were in the midst of issuing a circular on the matter to petrol stations in the affected areas in Kedah, Kelantan, Johor, Sabah and Sarawak, he said.

"This measure is to curb the increasing cases of fuel smuggling, as the prices for fuel are subsidised and cheaper in Malaysia compared to those prices set by neighbouring countries such as Thailand, Singapore and Indonesia," he said.

Ismail said for RON 95, it was sold at RM1.80 (S$0.73) a litre in the country compared to RM4.01 in Thailand, RM4.31 in Singapore, RM2.26 in Indonesia and RM5.42 in the Philippines.

"It is unfair if foreigners get to enjoy the fuel subsidy provided by the Government," he told reporters at the Parliament lobby here yesterday.

He said the decision to limit the sale was made under the Control of Supplies (Prohibition of Export) 2000 Regulation.

Ismail warned that petrol station operators caught selling fuel exceeding 20 litres to foreigners risk facing action from the ministry, such as having their licences withdrawn.

In May 2008, the then Domestic Trade and Consumer Affairs Minister Datuk Shahrir Samad had barred petrol stations located in border states like Johor and Perlis from selling petrol and diesel to foreign-registered cars.

However, this ban was subsequently rescinded following complaints.


So imagine that Singapore requires its cars to have 3/4 tank of petrol before leaving the country. Let's make it simple and assume that the car actually takes 40L of petrol full tank. So 3/4 tank means 30L. We also assume a model of a car with 10KM/L consumption rate. So if a car enters Malaysia with 3/4 tank, it has to travel a total of 100KM before it can leave for Singapore. The distance travel is as far as Machap!

Further more, in order to pump 20L of petrol AND not get your car confiscated, your car practically has to run out of fuel before refuelling. Of course, I am only making a modest assumption using the Nissan Latio with 40L tank with 10L reserve. Which means that I can only have 1/4 tank left for my car before I can be released to Singapore.

Singaporean therefore can kiss goodbye to weekend shopping, weekend feast in Johore Bahru because believe me, you are never going to see your car again once you enter JB.

The second event a that made me laugh is regarding a lawsuit filed by Anwar on Mahathir. His case was thrown out by High Court and he went to the Court of appeal. Here is the article.

Anwar's suit struck out as document was in English

Hafiz Yatim
Dec 9, 09
2:42pmThe Court of Appeal has ruled that all court documents must be filed in the national language, because the supremacy of Bahasa Malaysia is enshrined in the federal constitution.

Justice Abdul Malek Ishak, who on Oct 20 had dismissed Anwar Ibrahim's appeal in his RM100 million defamation suit against former premier Dr Mahathir Mohamad, said the courts are required to strictly enforce the procedure.

In his 31-page written judgment made available today, the judge said failure to satisfy the ruling would result in applications being dismissed.

Anwar's lawyers had filed the memorandum of appeal in English rather than use the normal procedure of filing it in Bahasa Malaysia and English.
His lawyers then sought an extension of time to file the necessary documents when Mahathir's application to strike out the suit was heard, but this too was rejected.

"We have seen the memorandum and it is obvious it is not drafted in Bahasa Malaysia," Abdul Malek said.

"The failure to do so amounts to blatant breach that would compel us to conclude that no memorandum has been filed at all."

Anwar, he said, should have filed the memorandum of appeal in the national language as "no other language will be entertained".

"This is ordained in the laws of this country. The filing of the memorandum of appeal in the English language constituted an injustice to the respondent (Mahathir) and it was a pure and simple abuse of the process of the court," the judge said.

"Article 152 of the constitution, read together with the National Language Act, states all proceedings other than the giving of evidence shall be in the national language.

“The purported memorandum in English must accordingly be rejected outright. What is mandatory, must be strictly adhered to. Otherwise dire consequences will follow.”

Abdul Malik said the failure of Anwar's counsel to file the memorandum in Bahasa Malaysia had rendered the purported record of appeal useless.

“It is our judgment there is no proper or competent appeal before us. Furthermore, the Rules of the Court of Appeal 1994 state that, if the memorandum is not drawn up in the prescribed manner, the appeal may be dismissed.

“To add insult, the memorandum in English was not signed by Anwar's lawyers and not dated, rendering the memorandum invalid and to be defective and invalid.”

Deficiencies not rectified
The judge also found that, as early as between Aug 20 and Aug 22, 2007, Anwar's lawyers had been alerted to this deficiency by Mahathir's lawyers and to their proposed course of action.

“Hence there was ample opportunity for the appellant's counsel to rectify the appeal record. For the whole year of 2008, the counsel remained idle.

“In our judgment, Mahathir's counsel did not ambush Anwar's lawyers with respect to the striking-out application. The filing (to strike out) was done without any malice afterthought.”

He noted that everything seems to go wrong for Anwar and that “flagrant breaches of rules seem to be a hallmark of his case”.

“It is rather unfortunate but the law must be strictly adhered to,” he added.

In January 2006, Anwar had sued Mahathir for RM100 million over allegedly defamatory remarks the latter had made on the sidelines of a Suhakam conference four months earlier.

In July 2007, the Kuala Lumpur High Court struck out the suit without hearing the merits of the case, leading to an appeal being filed.

On Oct 20 this year, a three-member bench of the Court of Appeal unanimously dismissed the appeal and ordered Anwar to pay costs.

Sitting with Abdul Malek were Justice Azhar Ma'ah and newly-elevated judge Syed Ahmad Helmy Syed Ahmad.

Anwar was represented by lawyer Karpal Singh and SN Nair, while Mahathir was represented by VK Lingam.


What so strange about the event? The judge wrote his judgement in English.

Karpal's jibe: Judge harps on BM but writes in English Rahmah Ghazali
Dec 10, 09
7:45pmKarpal Singh is puzzled. The senior lawyer cannot fathom why Justice Abdul Malek Ishak would want to stress on the supremacy of Bahasa Malaysia using the English language.

The DAP MP was taking a swipe at the Court of Appeal judge for striking out his client Anwar Ibrahim's RM100 million suit against former premier Dr Mahathir Mohamad based on language technicalities.

The court ruled that all court documents must be filed in the national language, because the supremacy of Bahasa Malaysia is enshrined in the federal constitution.

In his written judgment released yesterday, Justice Malek said failure to satisfy the ruling would result in applications being dismissed.

Anwar's lawyers had filed the memorandum of appeal in English.

However, Karpal wondered why the judge did not pen his judgment in Bahasa Malaysia if the issue was of such grave importance.

"I would have thought there was more than a need for him to have written his judgment in Bahasa Malaysia in view of the strong language he uses in support of it," he said.

Make English official 2nd language

Speaking at a press conference in Parliament, Karpal also urged the government to 'carefully consider' amending the constitution to include English as the second official language of the country.

He said although Bahasa Malaysia was given pride of place in the country as stated in the constitution, the courts are still bestowed "with inherent jurisdiction to ensure justice is not denied to litigants."

"Every effort should be made to ensure that suits are not thrown out on technicalities. In the end, it is the substantial justice of the case which must be given the highest premium," he added.

He also noted that the High Court, Court of Appeal and Federal Court proceedings in point of submissions and arguments are still in the English language.

"This is a necessity in view of law reports being essentially in the English language. The time has not come to completely eradicate the use of the English language in courts.

"The position is further compounded as English has gained recognition as the language of commerce internationally, particularly in view of globalisation,” he said.

"Therefore, the National Language Act has to be considered in the context of this development. Otherwise, the country will be left behind and be deprived of the progress it can attain," he added.

According to Karpal, as result of English not being given prominence in court proceedings, foreign investors, including multinationals, will resort to arbitration instead of referring disputes to the courts.

"This is not a step in the right direction as it reflects the loss of confidence in the judiciary.

"The English language, both in schools and in administration of the country, is perhaps at its lowest ebb, unlike the position in Singapore where English is virtually the national language of the country.

"We should not lose out to Singapore," he added.

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