By David Oh
Intellectual Property Consultant and Director
Mindvault Sdn Bhd

This is the first in a four-part series published on 30 June 2003 in the Netv@lue2.0 pullout of The Edge, Malaysia’s leading Business & Investment Weekly.

Would you like to earn US$35 million in a single day? Could your company do with a multi-million dollar cash injection?

This is what happened to MercExchange LLC on May 27 when a US Federal Jury ordered online auction giant eBay to pay US$35 million in damages for the infringement of two patents held by MercExchangei.

Who is MercExchange? Is it a manufacturing company? Does it own plant and machinery? Does it have a large workforce?

MercExchangeii is a company owned by Thomas Woolston, an inventor and patent attorney, whose main source of income is derived from the licensing of patents owned by Woolston.

MercExchange does not sell any tangible products, it does not own any distribution channels nor does it have many employees and yet, it is now US$35 million richer. Welcome to the knowledge economy.

The New Economy
The advent of globalisation and the k-economy has changed the playing field, bringing with it a new set of rules and perspectives.

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by Yong Ling Loong

I didn’t believe what I read in The Star newspaper (15th July 2008). The news seem to overshadow other unbelievable stuff that I have read in The Star over the years.
I know Karpal Singh is against the Establishment, namely Mahathir & cronies. And he is a long-time Opposition man. And wasn’t he the one who lodged a police report against Mahathir over the latter’s remark that some judges had approached him to lobby for their appointment (May 24th 2008 The Star)? But what was reported yesterday really had me thinking - what’s happening?

Karpal did the almost unthinkable. By calling for Justice Ian Chin to be sacked immediately over his criticism of Mahathir and further that “he (Ian) was not a disciplined” person, I had to re-read that. It had me seriously wondering about Karpal Singh’s state of mind. Whose side is he on?
If the Star reporter had quoted him correctly, Karpal had said “I don’t want to have to use the word kurang ajar (ill-bred) but judicially immature,” he said, adding that the judge had been “narrow-minded” in his statements against Dr Mahathir. ”
Hello … why such harsh criticisms against Ian? In fact, the majority of the legal profession is in favour of Ian Chin’s stand. The judges that deserve the description of “Kurang Ajar” or “judicially immature” are corrupt judges, as well as judges who compromise their principles by perverting the course of justice and convicting the innocent. Is Ian guilty of all that?
Surely, Karpal has been misquoted?

Next, it was reported in the same article that Karpal Singh had asked why Justice Chin only revealed the 1997 boot camp episode now after Mahathir had retired instead of making the allegation then.

“Is it because Dr Mahathir has retired and one can attack him now?” he asked.
“If a judge is scared, he does not qualify to be a judge,” Karpal Singh said.
The Star, July 15 2008

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The Minority Shareholder’s Sword to Pierce the Majority’s Twin Shields of Corporate Personality and Majority Rule

Part A. Introduction

A derivative action is an action brought by a shareholder based on a cause of action that the company has, rather than a cause of action belonging to the shareholder. The common law allows a minority shareholder to bring this action on behalf of the company in situations where the company does not take action because the wrongdoer controls the company and is able to prevent the company from taking any action.

The new statutory derivative action, under sections 181A to 181E of the Companies Act 1965 (“the Act”), allows a complainant to apply for leave of the Court to bring an action on behalf of the company. This new action, which came into effect on 15 August 2007 under the Companies (Amendment) Act 2007, allows a shareholder to sidestep the restrictions of the common law derivative action.

The common law rule in Foss v Harbottle (1843) 67 ER 189 states that if a company suffers a wrong then, because it is a separate legal entity from its shareholders, prima facie it is the company that should bring an action. Such a rule allowed a shareholder to bring an action on behalf of the company if two elements could be proven. First, that the wrong is one that cannot be validly ratified by the majority as there has been a fraud on the minority, and second, that the perpetrators of the fraud were in control of the company.

The new statutory derivative action bypasses the narrow Foss v Harbottle rule. However, it is clear that the right to bring a common law derivative action continues to be maintained here in Malaysia (see section 181A(3) of the Act).

The new sections 181A to 181E of the Act are very similar to the statutory derivative action provisions of the Singapore Companies Act, which were in turn modelled after the provisions of the Canadian Business Corporations Act.
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 Part III

Thirdly, the whole idea that it’s unthinkable and dishonourable to switch parties stems from the idea that the party is always correct, and the representative should tow-the-line. This idea, unfortunately, is ingrained in Malaysian society, that both capable BN and Opposition candidates lose out because of blind party loyalty. People expect representatives to conform with their parties’ principles, for better or worse. People expect the political freedom of representatives to be restricted by their parties.

Such is the chain reaction effect of perpetuating a party-politic dependent democratic system, which is what the APHA does. People need to grow to have faith in their representatives, instead of relying on their favoured parties to control the representatives. For if we embrace the idea that party politics is the order of the day, and the law needs to entrench that order, why not just replace the whole electoral system with a pure party-based elections? No candidates, just vote for the parties. The party will later choose any of its member to fills its rank. Doesn’t matter who he is, since the only concern is not what the person believes, but that the person believes religiously to a particular party’s line. Isn’t such a system more effective in guaranteeing parties won’t lose control of their representatives once voted in?

Lastly, I find the APHA unfairly shifting the blame solely on the representatives. Since we place political parties on the pedestal already, shouldn’t it be the responsibilities of parties to choose their candidates wisely? If parties expect people to vote for their candidates, shouldn’t they be responsible of ensuring that the candidates chosen is a true party loyalist?

The APHA is thus hypocritical in the sense that it perpetuates the idea of party-politics, and yet effectively recognize that political parties are not strong enough to maintain loyalty and cohesiveness amongst its members. It’s an easy way out, isn’t it? Simply choose any Tom, Dick or Harry to run as candidate. No need to check his credentials. Why? Because if he goes rogue, the law will kick him out.

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  Part II

The third issue pertains to the effects of the APHA on the political climate of Malaysia. In my view, the APHA severely dilutes the spirit of democracy in Malaysia, and reinforces the centralisation of power by the elite few.

Malaysia adopts the British Westminster Parliamentary system. Entrenched deeply in this system is the role of party politics, as the majority in the Parliament determines the appointment of the Prime Minister, and consequently, the Cabinet i.e. the executive branch of the government. Such a system has been described, and criticised, as a system patronage, where the elite few at the top essentially controls the political minds and actions of the many lower party members below. It is not a perfect system, but one that works, with adequate check and balance.

Party politics in Malaysia is well-known. Candidates in constituencies are chosen by party leaders. And once elected, they are expected to agree with the party line, no questions asked. Opposing the party’s bill is tantamount to breaking ranks, and assures the rebellious representative a meeting with the party leaders. In short, there is hardly room for personal opinions, no matter how big or trivial.

In my view, the APHA effectively reinforces the idea of party politics, to the extent that threatens the democratic will of the people. By imposing legal sanctions against anyone who switches parties, it essentially sends the message to voters: “Vote for the party, not the individual”. Indeed, such a mentality is already prevalent amongst Malaysians. But is this a healthy mentality? No, it is not.

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  Part I

It has been weeks passed the 2008 General Elections. And yet the dust has not quite settled yet. In the aftermath, many voices for reforms have been raised.  Amongst them, are calls for the enactment of an Anti-Party Hopping Act (‘APHA’) – a law which prohibits elected representatives (both Members of Parliament and State Assembly) to switch political parties after being voted in. Essentially, it has the legal effect of expelling an elected representative if he switches political allegiance during his tenure.

The idea was initially proposed by Datuk Zaid Ibrahim, the newly appointed Minister in the Prime Minister’s Department. Since then, it has rapidly gained support from many respected politicians, even among the Opposition, including Mentri Besar Datuk Nik Abdul Aziz Nik Mat from PAS and Karpal Singh from DAP.

There appears to be an urgent need for such a law, as one of the fallouts of the recent general elections has been the rumoured defections of certain elected representatives. PKR adviser Datuk Seri Anwar Ibrahim alleged that he met BN MPs from Sabah and Sarawak on crossing over to the Opposition.

This is not the first time such a law has been in the spotlight. In 1992, the Supreme Court ruled that an anti-hopping law enacted in Kelatan was unconstitutional as it violated the freedom of association as enshrined in the Federal Constitution. Interestingly, both the Sabah and Sarawak State Constitution has a similar law since 1986 and 1994 respectively. So far, such laws have not been challenged in the courts.

According to Article 10 of the Federal Constitution, freedom of association is not absolute. Restrictions can be imposed based on “public order or morality” – which is what most of the supporters of the anti-hopping law is justifying their claims on.
“I will propose to the Cabinet for consideration. It is an issue of integrity and morality,” said Datuk Zaid Ibrahim. “I am sure Malaysians would not want their politicians to hop”. Karpal Singh equated hopping parties as cheating and deception.

But first, let’s look before we leap. Are calls for an APHA justified? Is it effective in solving practical problems? Does it cause any adverse effects to the democratic electoral system in Malaysia? In my view, such a law is unjustified, ineffective and causes grave adverse effects to Malaysian democracy. And here’s why.

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LAWYERS

Lawyers are professional people trained in the law. You may seek their help to solve your problems. They are independent people and any information given to them is confidential and can only be released with your consent. Though a lawyer’s main duty is to protect your interest, he is also an officer of the Court and must not mislead the court or assist you in any way to break the law. He is bound by a strict code of conduct and rules of etiquette.
 
 
WHEN YOU MAY WISH TO SEE A LAWYER

Generally you may wish to see a lawyer to :

Get advice on a legal problem
Represent you in court, if necessary
Assist you in the handling of your legal rights.
 
You may therefore wish to see lawyer, in particular:

When you are charged with a criminal offence, to seek advice on matters relating to your defence, and to represent you in court.
When you wish to make a claim against another party you can ask a lawyer to file a claim for you and to represent you in court.
When some other party has unfairly filed a claim against you in Court, you may wish to seek the help of a lawyer to defend the claim.
 
 
When you are in doubt over any matter relating to the law, it is advisable to consult a lawyer. This is for your own protection. Also, taking legal advice at an early stage could save you a lot of time, trouble and money.
 
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Since the dawn of humanity, women have always been bullied, dominated, and abused by men. But not anymore, with the rise of feminism in the last century or so. Day by day, more and more of their suppressed rights have returned, their stifled voices heard. Society has changed, and so has the law.

Sexual empowerment for women is getting better. But it can get funny and ugly, too.

In early March 2008, a 38-year old Japanese bikini model, popularly known by her professional name as Serena Kozakura, was facing criminal charges. But she was acquitted, for the simple reason that her breasts were big. Very big, in fact. It’s a case which proves that size DOES matter.

What happened was that she was charged for property destruction. A man accused her for kicking in the wooden door of his room, and crawled through the hole she had made. Apparently, he was with another a woman inside. No doubt, a typical love triangle, jilted feelings and revenge was thrown in the mix.

So how did her big breasts make the difference? Simple. In her appeal, her defence counsel brought a plate showing the size of the hole before the Tokyo High Court. He showed that it was impossible for her to fit through the hole with her 110cm breasts. Satisfied with such incontrovertible evidence, the court acquitted her.

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Once every four years, the world arrives at a standstill. Peoples from all over the world gather to celebrate the peak of our physical prowess. And to celebrate with a spirit of camaraderie. A moment when national, racial and religious divide are forgotten. And when everyone exchanges smiles and handshakes.

Such is the essence of the Olympics. Or is it?

No doubt, the 2008 Beijing Olympics would be China’s crowning moment in its sudden, stunning meteoric rise from a sleeping giant to a global superpower. But as the Games loom ever closer, rumblings of discontent from the rest of the world have grown even louder.

In February 2008, the famous Hollywood film director Steven Spielberg (E.T., Jurassic Park, Schindler’s List) dropped a bombshell by withdrawing himself as artistic adviser to the 2008 Olympics. His main reason was China’s role and influence in the western Darfur conflict. He accused China of not doing enough to pressure the Sudanese government to end the “continuing human suffering” there.

He said: “At this point, my time and energy must be spent not on Olympic ceremonies, but on doing all I can to help bring an end to the unspeakable crimes against humanity that continue to be committed in Darfur”.

Predictably, his withdrawal has sparked much controversy. The Chinese authorities and media have categorically condemned him. The International Olympic Committee (“IOC”) has backed China. The rest of the world has shown mixed reactions.

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Around April later year, the Bar Council has launched a book by the title “Police and Your Basic Rights” which was a noble action initiated by a group of lawyer known as TANGKAP (Tindakan Anti PenyalahGunaan Kuasa Polis).[i]  The book is well known among the public as “The Red Book”.  The main objective of this book is to educate the public generally about their rights when being confronted by police. This is because a mass majority of people do not know their basic rights and thus this leads too many problems.The Red Book was officially launched on the 20^th of April 2006 by Datuk Seri Mohamed Nazri Bin Abdul Aziz, the Minister in the Prime Minister’s Department in charge of Law also with the ex-President of the Bar Council, Mr. Yeo Yang Poh.[ii]  Each and every individual have certain rights guaranteed under our very Federal Constitution.[iii] The police have powers to stop, arrest and search an individual under the Criminal Procedure Code (CPC)[iv] but these powers are limited.In this topic, I will discuss …

(This article is contributed by Derek Chong Ching Hsiang, Law Student of Univeristy Malaya)

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