JOURNAL JOURNAL OFJOURNAL JUDICIARY MALAYSIAN THE OF THE MALAYSIAN JUDICIARY July 2020 January 2019 Barcode ISSN 0127-9270 JOURNAL OF THE MALAYSIAN JUDICIARY July 2020 JOURNAL OF THE MALAYSIAN JUDICIARY MODE OF CITATION Month [Year] JMJ page ADMINISTRATIVE SERVICE Publication Secretary, Judicial Appointments Commission Level 5, Palace of Justice, Precinct 3, 62506 Putrajaya www.jac.gov.my Tel: 603-88803546 Fax: 603-88803549 2020 © Judicial Appointments Commission, Level 5, Palace of Justice, Precinct 3, 62506 Putrajaya, Malaysia. All rights reserved. No part of this publication may be reproduced or transmitted in any material form or by any means, including photocopying and recording, or storing in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication, without the written permission of the copyright holder, application for which should be addressed to the publisher. Such written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. Views expressed by contributors in this Journal are entirely their own and do not necessarily reflect those of the Malaysian Judiciary, Judicial Appointments Commission or Malaysian Judicial Academy. Whilst every effort has been taken to ensure that the information contained in this work is correct, the publisher, the editor, the contributors and the Academy disclaim all liability and responsibility for any error or omission in this publication, and in respect of anything or the consequences of anything done or omitted to be done by any person in reliance, whether wholly or partially, upon the whole or any part of the contents of this publication. ISSN 0127-9270 (bi-annually) Published by Judicial Appointments Commission Level 5, Palace of Justice, Precinct 3, 62506 Putrajaya, Malaysia. Editing, design and layout by THE MALAYSIAN JUDICIAL ACADEMY CHAIRMAN The Rt. Hon. Tan Sri Tengku Maimun binti Tuan Mat Chief Justice MEMBERS The Rt. Hon. Dato’ Rohana binti Yusuf President of the Court of Appeal The Rt. Hon. Tan Sri Dato’ Sri Azahar bin Mohamed Chief Judge of Malaya The Rt. Hon. Dato’ Abang Iskandar bin Abang Hashim Chief Judge of Sabah and Sarawak Justice Datuk Seri Haji Mohd Zawawi bin Salleh Judge of the Federal Court Justice Datuk Nallini Pathmanathan Judge of the Federal Court Justice Datuk Vernon Ong Lam Kiat Judge of the Federal Court Justice Datuk Dr. Badariah binti Sahamid Judge of the Court of Appeal SECRETARY Mr. Qalam Zainuddin bin Sani Secretary, Judicial Appointments Commission PUBLICATION COMMITTEE OF THE MALAYSIAN JUDICIAL ACADEMY MANAGING EDITOR Justice Datuk Nallini Pathmanathan Judge of the Federal Court MEMBERS Justice Dato’ Zabariah binti Mohd. Yusof Judge of the Federal Court Justice Datuk Dr. Badariah binti Sahamid Judge of the Court of Appeal Justice Dato’ Lee Swee Seng Judge of the Court of Appeal Justice Mohd. Nazlan bin Mohd. Ghazali Judge of the High Court of Malaya Mr. Qalam Zainuddin bin Sani Secretary, Judicial Appointments Commission Ms. Adibah Al-Husna binti Abdul Rahim Deputy Secretary, Judicial Appointments Commission SECRETARY Dr. Noradura binti Hamzah Judicial and Legal Officer PANEL OF REFEREES Justice Belinda Ang Judge of the Supreme Court Singapore Justice See Kee Oon Judge of the Supreme Court Singapore Justice Prateek Jalan Judge of the High Court of Delhi India Justice Mark Leeming Judge of the Court of Appeal of the Supreme Court of New South Wales Australia David Pittaway QC Head of Hailsham Chambers, London United Kingdom Professor Leong Wai Kum National University of Singapore Singapore Associate Professor Low Chee Keong CUHK Business School Hong Kong PREFACE It is with great pleasure that we present on behalf of the Judiciary, the ninth edition of the Journal of the Malaysian Judiciary. We are glad to note the continued evolution and success of the journal since its first publication in July 2016. My pleasure in writing this preface is, however, tinged with a degree of despondency by reason of the loss of our admirable editor, Tan Sri Idrus Harun, whose keen intelligence and dedication as exemplified by our last edition, will be sorely missed. However, it has to be conceded that his contribution to the nation will indubitably be greater in his current position as the Attorney-General of Malaysia. On behalf of the dedicated Committee of the Journal, I would like to express our deep appreciation to all the contributors to the journal, who willingly devoted their time and energies to writing their stimulating and thought- provoking articles. The subject matter of this edition commences with a distinctive essay which explores the complex relationship between Islamic financing and the philosophical underpinnings of the Shariah. Thereafter the subject matter is arranged to showcase how the Judiciary has dealt with the coronavirus pandemic and continues to evolve to ensure that access to justice is not compromised. We then turn to substantive law essays, both national and international, in the form of contributions ranging from influential impressions on the Federal Constitution to the insightful, if grim, reality of deaths in custody as well as the more conventional, but equally important, topics of mediation, corporate law, tax and shipping law, as well as evidence, specifically in relation to child witnesses. From our international contributor, we are honoured to receive an important essay on the Singapore Convention on Mediation. This edition is the result of the contributions of eminently qualified writers who are distinguished in their field and we are delighted to have been accorded the privilege to edit these articles. Justice Nallini Pathmanathan Managing Editor CONTENTS An Imperfect Observation of the Perfect Shariah Through the Lens of Islamic Finance The Rt. Hon. Dato’ Rohana binti Yusuf and Dr Syed Adam Alhabshi ..............1 Justice in Times of COVID-19 The Rt. Hon. Tan Sri Dato’ Sri Azahar bin Mohamed ......................................17 Court-Annexed Mediation – Myths and Misconceptions Justice Datuk Vernon Ong Lam Kiat .................................................................23 Basic Structure of the Constitution Justice Dato’ Abdul Rahman bin Sebli ...............................................................55 Death in Custody Dato’ Mah Weng Kwai .......................................................................................85 Judicial Management as the New Corporate Rescue Mechanism Justice Wong Chee Lin .....................................................................................118 Child Witnesses: Competency, Credibility, and Corroboration Justice Evrol Mariette Peters ............................................................................145 The Daien Maru No 18 – The Aftermath Justice Ong Chee Kwan ....................................................................................172 The Singapore Convention on Mediation: Supplying the Missing Piece of the Puzzle for Dispute Resolution Assistant Professor Dorcas Quek Anderson ....................................................194 The Growing Trend in the Introduction of Provisions Prohibiting General Avoidance and Necessitating Broad Disclosure in Revenue Legislation at National and International Levels – How Does This Impact the Rule of Law? Dato’ Mohd Arief Emran bin Tun Arifin .........................................................221 An Imperfect Observation of the Perfect Shariah Through the Lens of Islamic Finance by The Rt. Hon. Dato’ Rohana binti Yusuf * and Dr Syed Adam Alhabshi** Introduction [1] When Islamic finance started, it faced tremendous challenges. One of the main reasons was due to the fact that market players were only too familiar with conventional banking. There was no precedent to look up to. The business risk faced by banks on its acceptability by public members was yet another facet to be dealt with. Bankers and lawyers thought only familiar products would sell in the market; unfamiliar products might have taken longer to gain acceptability. In the end, the banking transactions took their form by emulating products and contracts resembling those of conventional finance. Thus, most Islamic banking products began by structuring them to mirror their conventional counterparts, with appropriate adjustments to enable compliance with Shariah. Shariah: The immutable law [2] The “Shariah” is an Arabic term which literally translates into “the way”/“the way of life”. From this, the term Shariah is often understood as the path to a natural and innate way and order created by Allah SWT1 for His creation, or in other words, Allah SWT’s path. Hence it is the way of life to be adopted by mankind regardless of their religious affiliation. The paradigm of Shariah is Allah SWT- centric (Creator-centric); thus, the Quran plays an important role in determining the economy of the ummah. According to Ibn Qayyim, the general principles of Shariah are based on wisdom and achieving people’s welfare in this life and the afterlife. It is about justice, mercy, wisdom and common good. Therefore, any ruling that replaces justice with injustice, mercy with cruelty, common good with mischief, or wisdom with nonsense, is a ruling that does not belong to Shariah. * President of the Court of Appeal of Malaysia. ** Partner, Shook Lin & Bok, Malaysia. 1 SWT is Subhanahu Wa Ta’ala which means “Glory be to Him, the Exalted”. 2 Journal of the Malaysian Judiciary July [2020] JMJ [3] The Shariah, when applied to Islamic finance,