JOURNAL JOURNAL OF THE MALAYSIAN JUDICIARY MALAYSIAN THE OF JOURNAL OF THE MALAYSIAN JUDICIARY January 2018 January 2018 Barcode ISSN 0127-9270 JOURNAL OF THE MALAYSIAN JUDICIARY January 2018 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 2018 © 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 for RDA Press Sdn Bhd THE MALAYSIAN JUDICIAL Academy Chairman The Rt. Hon. Tun Raus Sharif Chief Justice MEMBers The Rt. Hon. Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin President of the Court of Appeal The Rt. Hon. Tan Sri Dato’ Sri Ahmad bin Haji Maarop Chief Judge of Malaya The Rt. Hon. Tan Sri Datuk Seri Panglima Richard Malanjum Chief Judge of Sabah and Sarawak Justice Tan Sri Datuk Zainun binti Ali Judge of the Federal Court Justice Tan Sri Dato’ Sri Azahar bin Mohamed Judge of the Federal Court Justice Tan Sri Zaharah binti Ibrahim Judge of the Federal Court Justice Dato’ Sri Balia Yusof bin Haji Wahi Judge of the Federal Court Justice Tan Sri Dato’ Wira Aziah binti Ali Judge of the Federal Court Justice Datuk Nallini Pathmanathan Judge of the Court of Appeal Justice Datuk Dr. Badariah binti Sahamid Judge of the Court of Appeal Secretary Mr. Wan Khairilanwar bin Wan Muhammad Secretary, Judicial Appointments Commission PUBlication COMMITTEE OF THE Malaysian Judicial Academy ManaGING EDITOR Justice Tan Sri Datuk Zainun binti Ali Judge of the Federal Court MEMBers Justice Dato’ Alizatul Khair binti Osman Khairuddin Judge of the Federal Court Justice Tan Sri Idrus bin Harun Judge of the Court of Appeal Justice Datuk Nallini Pathmanathan Judge of the Court of Appeal Justice Datuk Dr. Badariah binti Sahamid Judge of the Court of Appeal Mr. Wan Khairilanwar bin Wan Muhammad Secretary, Judicial Appointments Commission Ms. Adibah Al-Husna binti Abdul Rahim Deputy Secretary, Judicial Appointments Commission Secretary Ms. Suraiya binti Mustafa Kamal Judicial and Legal Officer Officers Ms. Azniza binti Mohd Ali Judicial and Legal Officer Ms. Maimoonah binti Aid Judicial and Legal Officer PANEL OF REFEREES Justice I Gusti Agung Sumanatha, S.H., M.H. Hakim Agung Mahkamah Agung Republik Indonesia Justice Madan Bhimarao Lokur Judge of the Supreme Court India Justice Belinda Ang Judge of the Supreme Court Singapore Justice Brian W Lennox Judge of the Ontario Court of Justice Canada Associate Professor Dr Johan Shamsuddin Sabaruddin Dean, Faculty of Law Universiti Malaya, Kuala Lumpur Malaysia Professor Leong Wai Kum National University of Singapore Singapore David Pittaway QC Head of Hailsham Chambers, London United Kingdom Associate Professor Low Chee Keong CUHK Business School Hong Kong Preface We are on the cusp of an exciting time ahead, because for the first time, the JMJ invites writers from outside the small niche of judges from our Judiciary. The depth and weight this has added to our publication is invaluable. In this, one is reminded of the remark made by Lord Cooke of Thorndon (New Zealand Court of Appeal and Lord of Appeal in the House of Lords), that we can now “enjoy the luxurious advantage of the freedom to ransack the case laws of the larger English speaking jurisdictions”, and in this we can afford to be eclectic. We have yet another first; in that the Chief Justice, in recognising the allure of having referees to advise, influence, reform and refine the shape of our nascent publication, has invited eminent personalities to be members of the JMJ’s Panel of Referees. Their input promises to give it profundity and élan. The thrill derived from the range of all these diverse talents is, one hopes, the appeal of our publication. Justice Zainun Ali Managing Editor CONTENTS Royal Address by His Majesty Sultan Ibrahim Ibni Almarhum Sultan Iskandar, the Sultan of Johor, at the Opening Ceremony of the Muar Court Complex on Thursday, January 18, 2018 ...........................1 Shaping the Future of Arbitration in Malaysia The Rt. Hon. The Chief Justice Tun Raus Sharif .................................................5 To Intervene or Not to Intervene Justice Dato’ Mary Lim Thiam Suan .................................................................15 Freedom of Contract and Legislative Intervention: Determining Common Properties in Strata Development Justice Dato’ Vazeer Alam Mydin Meera ...........................................................32 Lifting of the Corporate Veil Justice S Nantha Balan ......................................................................................57 Enforcement of Foreign Arbitral Awards Justice Azizul A Adnan ....................................................................................107 Cyber Defamation in Malaysia: An Overview Justice Mohamed Zaini bin Mazlan .................................................................124 Skinning the Cat: Claims against Private Healthcare Providers David Pittaway QC ..........................................................................................145 The Business Judgment Rule: A Safe Harbour for Directors? Associate Professor Low Chee Keong and Low Tak Hay ..................................159 The Shine on Semenyih Jaya: Resurrecting Judicial Power Dato’ Dr Gurdial Singh Nijar .........................................................................192 Of Public Interest, Freedom of Speech and the Law of Defamation Darryl SC Goon ...............................................................................................206 Royal Address by His Majesty Sultan Ibrahim Ibni Almarhum Sultan Iskandar, the Sultan of Johor, at the Opening Ceremony of the Muar Court Complex on Thursday, January 18, 2018 Ladies and Gentlemen, The Federal Constitution is the supreme law of Malaysia. It is an all encompassing living instrument which has taken into account the interests of all parties as well as the historical background of this country. Our Constitution is based upon the Westminster system of democracy with a constitutional monarchy. The Federal Constitution came into effect in 1957 and continues to be the source of governance in Malaysia. Nevertheless, there have been amendments and improvements made to the Federal Constitution since its inception, to cater to the prevailing needs and requirements of the country at various points in time. If those amendments prove to be detrimental today, I must then suggest that the matter be rectified for the sake of the country’s stability and the people’s well-being. The State of Johor was the first government in Malaysia to have a written Constitution and to practise the system of constitutional monarchy. It began when the late Sultan Abu Bakar declared the Undang-Undang Tubuh Kerajaan Johor on September 14, 1895. Up till today, the Undang-Undang Tubuh Kerajaan Johor, which provides for the manner of governance and rules on how the government should be administered, is still used without much amendment. Ladies and Gentlemen, To maintain the country’s stability, our system of separation of powers must be protected. The three main components of Government, namely the Executive, the Legislature and the Judiciary, must be independent and each must have the right to decide on matters falling within its own jurisdiction. No component holds absolute power. If the power to administer, to enact laws and to adjudicate disputes is bestowed 2 Journal of the Malaysian Judiciary January [2018] JMJ on a single individual or component, it will encourage autocratic governance. There will then be no check and balance. The jurisdiction of Parliament is only to enact laws. A law which is to be enforced must be passed by three entities, namely the Dewan Rakyat (House of Representatives), the Dewan Negara (Senate) and the Yang di-Pertuan Agong. These three entities must be given freedom to exercise their functions in decision-making so as to ensure a complete process in the enacting of laws. The Executive, on the other hand, must administer in accordance with enacted laws. Whenever there is dispute in relation to administration,