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JOURNAL OF THE MALAYSIAN JUDICIARY January 2021 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 2021 © 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. Tun Tengku Maimun binti Tuan Mat Chief Justice MEMBERS The Rt. Hon. Tan Sri 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 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 Dato’ Lee Swee Seng Judge of the Court of Appeal Justice Tuan Darryl Goon Siew Chye 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 considerable pleasure that we present, on behalf of the Judiciary, this collection of legal essays which comprise the tenth edition of the Journal. It has been our privilege to curate this anthology of articles, and we express our genuine appreciation to the authors who expended considerable time and effort to produce their works. It is our hope that the reader will enjoy this collation of interesting legal commentaries, and feel sufficiently inspired to venture further into one or more of the varied subjects covered in this edition. The issue commences, most appropriately, with the opening address of The Right Honourable The Chief Justice of Malaysia, Tun Tengku Maimun binti Tuan Mat on the year past, and the aspirations of the Judiciary for 2021. The Chief Justice’s address affords the reader a comprehensive perspective of the difficulties the Judiciary faced and overcame, as well as the digital advances it made in 2020. The objectives sought to be enhanced and developed for the Judiciary in 2021, are summarised and provide a beacon for the year ahead. We are most privileged to publish an illuminating article on judging and the judiciary in the age of technology by The Honourable the Chief Justice of Singapore, Sundaresh Menon which is very much in keeping with the digital theme. The legal concepts explored by The Honourable Chief Justice of Singapore enable the reader to explore the challenges posed by technology and the virtual world on substantive legal frameworks and doctrines in established areas such as contract law and land law. The role of technology in the pursuit of justice in both Singapore and other jurisdictions is examined through the still evolving dialogue in this area, concluding with the importance of espousing technology, the law and justice. In similar vein, the thought-provoking article by Justice Dr Choo Kah Sing on the rule of law affords us another unique perspective on this inspiring and timeless theme, taking us through its historical underpinnings through to its application today, reminding us of its essential role in the administration of justice. This is followed by a unique and fascinating essay on the law and transsexuality by Justice Mohd Radzi Harun, which examines the development of jurisprudence in this area over a thirty-year period in the United Kingdom between 1970 and 2000, and the influence it had on other jurisdictions including Malaysia. viii Preface January [2021] JMJ Justice Christopher Chin writes on land law in Sabah and gives us an overview of the subject through the critical examination of case-law on indefeasibility (or defeasibility of interest in land), public reserves in the context of planning law, and procedure and dealings in native titles. Justice Chin’s critique evokes questions and issues which deserve considerable deliberation. We then move on to a more specialist area of the law, namely the applicability of section 154 of the Evidence Act 1950 on cross-examination of a party’s own witness in the context of a criminal trial. Justice Muniandy Kannyappan has provided a complete and expert treatise on this subject, and it will, no doubt, serve as an eminently useful reference to those seeking guidance on this subject. We conclude with an article by the erudite Dr Salahudin bin Dato’ Hidayat Shariff, on the principle of the best interests of the child, which explores this essential and worthy subject from the perspectives of the law in England and Malaysia. This area is of particular importance in view of the rising number of incidents of child abuse, child marriages, child neglect, abandoned babies and child abductions. Dr Salahudin has favoured us with a wide-ranging and inclusive dissertation that is immensely informative and useful. Significantly, it reiterates the need for considerable improvement in our legal framework to alleviate the plight of children in Malaysia, and to enhance the fundamental rights of the child in Malaysia. We trust you will enjoy this edition. Justice Nallini Pathmanathan Managing Editor CONTENTS Reflections on 2020 and Aspirations for 2021 The Right Honourable The Chief Justice of Malaysia, Tun Tengku Maimun binti Tuan Mat ............................................................. 1 Judging and the Judiciary: Challenges and Lessons in the Age of Technology The Honourable the Chief Justice Sundaresh Menon ...................................... 15 Rule of Law: A Conspectus Justice Dr Choo Kah Sing.............................................................................. 41 Legal Construction of Transsexuality Justice Mohd Radzi Harun ............................................................................ 51 Understanding Sabah Land Law Through Current Land Issues Justice Christopher Chin ............................................................................... 80 Cross-Examination of a Party’s Own Witness – What it Entails? Justice Muniandy Kannyappan ................................................................... 112 The Best Interests of the Child Principle in England and Malaysia Dr Salahudin bin Dato’ Hidayat Shariff ...................................................... 147 Reflections on 2020 and Aspirations for 2021* by The Right Honourable The Chief Justice of Malaysia, Tun Tengku Maimun binti Tuan Mat Introduction [1] New Year 2021 has dawned. On behalf of the Malaysian Judiciary, I wish you a very happy, safe, healthy and fulfilling New Year. [2] It has always been our tradition to host the Opening of the Legal Year every year. However, the circumstances arising out of the COVID-19 pandemic do not permit us to do so in 2021. [3] The COVID-19 pandemic has affected the lives and livelihood of many Malaysians. It has brought so many changes and challenges to our working lives that were all but impossible to foresee at the start of the year. It has changed the world of work. Across Malaysia and the world, workplaces and practices have had to adapt to a new norm to curb the spread of the virus. For millions of workers, this means having to work from home. Many others have continued to carry out their jobs under extremely trying conditions. [4] The main challenge posed by the pandemic has been to ensure that the administration of justice does not grind to a halt as a result of the lockdown measures imposed to control it. Consequently, significant efforts have been made across the justice system to ensure progress in legal proceedings, despite the constraints. Our priority is to ensure continued access to justice to all members of the public while at the same time ensuring the safety of the public and the court staff. [5] The advent of 2021 urges us to look back at the year past and to look forward to the year ahead.
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