Category: The Attorney

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

On the 16 September 1963, the Federation of Malaysia was born. This came a result of the Malaysia Agreement, for Malaya (Tanah Melayu), Sabah, Sarawak and Singapore to be joined as the Federation of Malaysia.

This may come as a surprise to you, but in the days leading up to Malaysia Day, a legal challenge was launched that threatened to put a halt to the formation of Malaysia.

Believe it or not, on 10 September 1963, the Government of Kelantan sued the Government of Malaya and Tunku Abdul Rahman in an attempt to stop the formation of Malaysia.[1] Among the reasons for this suit was that the consent of the Council of Rulers (including the Sultan of Kelantan) had not been obtained.

On 14 September 1963 (just 2 days before Malaysia Day),the Court decided that the Malaysia Agreement was in line with the Federal Constitution and there was no possibility of arguing against the basis of the formation of Malaysia. Had the Government of Kelantan succeeded in that legal challenge, Malaysia may never have been formed. Fortunately, that was not the case and Malaysia was formed.

It is important to remember that on Malaysia Day, Sabah, Sarawak, and Singapore did not become the 12^th, 13^th, and 14^th States of Malaysia. This is a common misconception among Malaysians, especial Peninsular Malaysians. In reality, Malaysia comprised of 3 parts[2]:

1. The States of Malaya (being all the states in Peninsular Malaysia);
2. The Borneo States (being Sabah and Sarawak); and
3. The State of Singapore.

In 1965, Singapore left the Federation of Malaysia. This left Malaysia comprised of the States of Malaya and the Borneo States.[3]

Despite the recognition of the Borneo States on Malaysia Day and the years following, in 1976 the Federal Constitution was amended to merely state that Malaysia comprised of 13 States. The concept of the States of Malaya and the Borneo States was removed.

Many viewed this move as an injustice to Sabah and Sarawak by effectively redefining the Borneo States as the 12^th and 13^th States of Malaysia. This changed the dynamics of the Malaysia that was born on Malaysia Day.

Despite this change, the status of the Sabah and Sarawak was still different to the status of the individual States of Malaya. An example of this is the restriction of Malaysian citizen’s rights of entry into Sabah and Sarawak (that is why Peninsular Malaysians need to get a Permit or Pass to travel to Sabah and Sarawak), which remains in force until today.

It was only in 2022 that the Federal Constitution was amended to revert to the pre-1976 definition of Malaysia (that Malaysia comprises of the States of Malaya and the Borneo States).[4] This was celebrated as a move to correct the mistakes of the past and return to the true spirit of Malaysia. Following this change, Sabah and Sarawak have been termed as equal partners to the Federation and no longer the 12^th and 13^th States of Malaysia.

While Merdeka Day is a day of great significance to Malaysians (especially Peninsular Malaysians), the significance of Malaysia Day simply cannot be understated. Malaysia day is a day that commemorates Malaya and Borneo coming together as partners with a hope of uniting its citizens under a common national identity – Malaysia.

Hence, Malaysia Day truly is the birthday of the Malaysia we know and love.

[1] (1963) 29 MLJ 355

[2] Section 4, Malaysia Act 1963

[3] Section 2, Act 59 of 1966

[4] Section 2, Constitution (Amendment) Act 2022

[push h=”15″]

About the Author

Sahain is a Legal Associate of XK Law. He graduated with Honours from the National University of Malaysia. Sahain believes that the legal fraternity plays an integral part in the operation of the rule of law in Malaysia and is keen to utilise his legal education towards the betterment of society and the country.

[push h=”25″]

Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

The lead vocalist of the pop song, “Robbers” from the 1975 English band made headlines for his actions at the Good Vibes Festival 2023, where he performed while holding a bottle of liquor, used provocative language, destroyed equipment and criticised Malaysia’s anti-LGBT laws, before planting a kiss on his male band mate’s lips[1].

This led to the immediate cancellation of the Good Vibes Festival 2023 by the Ministry of Communications and Digital (“Ministry”) for not complying with the local performance guidelines.

While most of us heard of what transpired at the Good Vibes Festival 2023 and have formulated our respective views on it, it is also important to know the guidelines for foreign artistes who are performing in Malaysia so that one understands the Ministry’s decision for cancelling the festival. These guidelines are published by the Central Agency for Application for Foreign Filming and Performance by Foreign Artistes (PUSPAL) (“Guidelines”).

The Guidelines set out among others, the code of ethics to be observed by foreign artistes at concerts. Foreign artistes are prohibited from displaying actions and speech that may cause discomfort to the audience and that touch upon religious and social sensitivities, and which are contrary to the cultural values of the local society such as:

• Performing in a wild manner, provocatively and displaying actions that are contrary to the performance code of ethics.
• Throwing objects towards the audience.
• Displaying actions or speech that is indecent, with provocative acts such as hugging, kissing a member of the audience or carrying out such actions among themselves.
• Performing actions or making utterances that may be deemed as seditious, calling on the audience to be proud of a particular class of society or religion in the context of racial polarisation that may affect the country’s stability.
• Entering the seated area of the visitors and/or treating the visitors and/or sitting together with the visitors.

It has been reported that the band was fully aware of the Guidelines and had even given a written undertaking to adhere to it. Given that Matty Healy wilfully breached the code of ethics under the Guidelines, it was no surprise that the festival was brought to a grinding halt. It is one matter that Matty Healy may not have agreed with the Guidelines, in which case the band should not have given the written undertaking and could have chosen not to perform in Malaysia. It is quite another matter for Matty Healy to audaciously violate the Guidelines.

It is unfortunate that the singer’s actions also robbed other artistes and vendors of their income and the concertgoers a good time. One can only hope that such incident does not happen again.

[1] https://www.thesundaily.my/home/fahmi-good-vibes-festival-cancelled-FE11267561 & https://www.freemalaysiatoday.com/category/nation/2023/07/22/good-vibes-festival-cancelled-says-fahmi/

[push h=”15″]

About the Author

Poon Wei Ying is a Senior Associate of XK Law who graduated with First Class Honours from the Cardiff University, United Kingdom. She believes in giving back to the society and that education can change a person’s life.

[push h=”25″]

Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

Jainal Jamran is an English teacher at SMK Taun Gusi in Kota Belud. He had a strange work habit. He went to school to teach on some days, but also chose not to turn up for work on other days i.e. up to 7 months in 2017!

Was he sick? Was he on leave? Was he on other school-related duties? Well, records from Sabah Education Department showed that he was just absent – no reasons were given.

Jainal’s absence affected the lives of at least 3 diligent students who looked forward to learning English in school and preparing well for the examinations. The absence of the teacher denied them their inalienable right to education, their constitutional rights under the supreme law of the land – the Federal Constitution.

The 3 students decided to take the English teacher to Court. In 2020, they filed a suit through their solicitors naming Jainal, the school’s principal, the Director-General of Education, the Minister of Education and the Malaysian Government as Defendants. They claimed the Defendants breached their statutory duties and violated the students’ constitutional right.

Amazingly, they succeeded in their suit earlier this year.

Under the Education Act 1996, every school has a statutory duty to prepare its students for examinations (see section 19). Apart from that, there are several fundamental liberties enshrined in the Federal Constitution, which every Malaysian is entitled to enjoy. One of those fundamental liberties is the right to education (see Article 12). No one can violate this basic right without consequences, even the Government.

Justice Leonard David Shim, the presiding High Court Judge in the suit brought by the 3 students, made a landmark decision when he held that the Defendants failed to prepare the students for examinations and therefore breached their statutory duties. The Judge also found that the students’ constitutional rights to access education were violated on account of the teacher’s absence and the principal’s non-action on the matter.

Whilst conventionalists may be of the view that legal action taken by students against the educators was disrespectful, the above case serves as a timely reminder that no public officer is free to disregard his/her statutory duty or the Federal Constitution, and where this is the case, the law will make him/her accountable for that breach, particularly so when it comes to something as important as education. If students’ attendances are a barometer of their personal discipline, the same should apply to the educators.

Students are the future of the nation, and educators bear Atlas-level responsibility to nurture and shape individuals as well as provide them with the tools they need to succeed. For this to happen, a student’s access to education should never be denied or neglected.

So, teacher, if I don’t see you in class, I might sue you in Court!

[push h=”15″]

About the Author

Afiq Iskandar is a Legal Associate of XK Law. He graduated from MARA University of Technology, Malaysia. Afiq has multiple interests in life beyond reading law viz. sports, film, music and poetry. He believes that art, in whatever form they may be, is a necessity of life.

[push h=”25″]

Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

On the 16 September 1963, the Federation of Malaysia was born. This came a result of the Malaysia Agreement, for Malaya (Tanah Melayu), Sabah, Sarawak and Singapore to be joined as the Federation of Malaysia.

This may come as a surprise to you, but in the days leading up to Malaysia Day, a legal challenge was launched that threatened to put a halt to the formation of Malaysia.

Believe it or not, on 10 September 1963, the Government of Kelantan sued the Government of Malaya and Tunku Abdul Rahman in an attempt to stop the formation of Malaysia.[1] Among the reasons for this suit was that the consent of the Council of Rulers (including the Sultan of Kelantan) had not been obtained.

On 14 September 1963 (just 2 days before Malaysia Day),the Court decided that the Malaysia Agreement was in line with the Federal Constitution and there was no possibility of arguing against the basis of the formation of Malaysia. Had the Government of Kelantan succeeded in that legal challenge, Malaysia may never have been formed. Fortunately, that was not the case and Malaysia was formed.

It is important to remember that on Malaysia Day, Sabah, Sarawak, and Singapore did not become the 12^th, 13^th, and 14^th States of Malaysia. This is a common misconception among Malaysians, especial Peninsular Malaysians. In reality, Malaysia comprised of 3 parts[2]:

1. The States of Malaya (being all the states in Peninsular Malaysia);
2. The Borneo States (being Sabah and Sarawak); and
3. The State of Singapore.

In 1965, Singapore left the Federation of Malaysia. This left Malaysia comprised of the States of Malaya and the Borneo States.[3]

Despite the recognition of the Borneo States on Malaysia Day and the years following, in 1976 the Federal Constitution was amended to merely state that Malaysia comprised of 13 States. The concept of the States of Malaya and the Borneo States was removed.

Many viewed this move as an injustice to Sabah and Sarawak by effectively redefining the Borneo States as the 12^th and 13^th States of Malaysia. This changed the dynamics of the Malaysia that was born on Malaysia Day.

Despite this change, the status of the Sabah and Sarawak was still different to the status of the individual States of Malaya. An example of this is the restriction of Malaysian citizen’s rights of entry into Sabah and Sarawak (that is why Peninsular Malaysians need to get a Permit or Pass to travel to Sabah and Sarawak), which remains in force until today.

It was only in 2022 that the Federal Constitution was amended to revert to the pre-1976 definition of Malaysia (that Malaysia comprises of the States of Malaya and the Borneo States).[4] This was celebrated as a move to correct the mistakes of the past and return to the true spirit of Malaysia. Following this change, Sabah and Sarawak have been termed as equal partners to the Federation and no longer the 12^th and 13^th States of Malaysia.

While Merdeka Day is a day of great significance to Malaysians (especially Peninsular Malaysians), the significance of Malaysia Day simply cannot be understated. Malaysia day is a day that commemorates Malaya and Borneo coming together as partners with a hope of uniting its citizens under a common national identity – Malaysia.

Hence, Malaysia Day truly is the birthday of the Malaysia we know and love.

[1] (1963) 29 MLJ 355

[2] Section 4, Malaysia Act 1963

[3] Section 2, Act 59 of 1966

[4] Section 2, Constitution (Amendment) Act 2022

[push h=”15″]

About the Author

Sahain is a Legal Associate of XK Law. He graduated with Honours from the National University of Malaysia. Sahain believes that the legal fraternity plays an integral part in the operation of the rule of law in Malaysia and is keen to utilise his legal education towards the betterment of society and the country.

[push h=”25″]

Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

Ever wondered why there were elections held this August? Didn’t we already vote last November? Was it the same thing? Why do we have separate elections?

Well, there are 2 main types of elections in Malaysia, namely:

1. General Elections, where Members of Parliament (MPs) are elected;
2. State Elections, where members of the State Legislative Assembly (ADUNs) are elected.

General Elections are held nationwide because there are MPs across the country. On the other hand, State Elections are held at a State level because each state has its respective ADUNs.

A General Election and State Election can be held at the same time. For example, the Pahang State Election was held on the same day as the 2022 General Election. Voters would have cast 2 ballot papers on election day.

However, the rules do not insist that both the General and State elections be held at the same time. They may be held separately. For example, 6 States (Kedah, Penang, Kelantan, Terengganu, Selangor and Negeri Sembilan) decided to hold their State Elections separate from the 2022 General Election. These 6 States held their state elections 9 months later, on 12 August 2023.

\Why don’t we just hold General Elections and State Elections at the same time? Since MPs and ADUNs are elected for 5 years, the 2022 General Elections could have been called in September 2023. However, the politicians decided to call it early for strategic reasons i.e. in November 2022. The 6 States are not bound by that call and chose to allow their ADUNs to serve the full 5-year term. If Members of Parliament were allowed to serve their 5-year term, it is very likely that the General Elections and State Elections would have been conducted at the same time.

Sabah, Melaka, Sarawak and Johor held their State Elections separately before the 2022 General Election. This means that the next State Elections for these 4 States will be due before the next General Election is due.

Perak, Perlis and Pahang had their State Elections at the same time as the 2022 General Elections. Hence, these are the only 3 States whose State Elections remain synchronized with the General Elections.

Hence, voters (aside from voters in Perak, Perlis and Pahang) can expect General Elections and State Elections to be held separately for the foreseeable future.

How does this impact you? Although it means having to vote on 2 separate occasions, having State Elections separate from the General Election also means that the State Elections could highlight state-based issues, which may be overlooked at the General Election.

It also means you will have to put up with all the political speeches more often then previously.

[push h=”15″]

About the Author

Sahain is a Legal Associate of XK Law. He graduated with Honours from the National University of Malaysia. Sahain believes that the legal fraternity plays an integral part in the operation of the rule of law in Malaysia and is keen to utilise his legal education towards the betterment of society and the country.

[push h=”25″]

Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

The lead vocalist of the pop song, “Robbers” from the 1975 English band made headlines for his actions at the Good Vibes Festival 2023, where he performed while holding a bottle of liquor, used provocative language, destroyed equipment and criticised Malaysia’s anti-LGBT laws, before planting a kiss on his male band mate’s lips[1].

This led to the immediate cancellation of the Good Vibes Festival 2023 by the Ministry of Communications and Digital (“Ministry”) for not complying with the local performance guidelines.

While most of us heard of what transpired at the Good Vibes Festival 2023 and have formulated our respective views on it, it is also important to know the guidelines for foreign artistes who are performing in Malaysia so that one understands the Ministry’s decision for cancelling the festival. These guidelines are published by the Central Agency for Application for Foreign Filming and Performance by Foreign Artistes (PUSPAL) (“Guidelines”).

The Guidelines set out among others, the code of ethics to be observed by foreign artistes at concerts. Foreign artistes are prohibited from displaying actions and speech that may cause discomfort to the audience and that touch upon religious and social sensitivities, and which are contrary to the cultural values of the local society such as:

• Performing in a wild manner, provocatively and displaying actions that are contrary to the performance code of ethics.
• Throwing objects towards the audience.
• Displaying actions or speech that is indecent, with provocative acts such as hugging, kissing a member of the audience or carrying out such actions among themselves.
• Performing actions or making utterances that may be deemed as seditious, calling on the audience to be proud of a particular class of society or religion in the context of racial polarisation that may affect the country’s stability.
• Entering the seated area of the visitors and/or treating the visitors and/or sitting together with the visitors.

It has been reported that the band was fully aware of the Guidelines and had even given a written undertaking to adhere to it. Given that Matty Healy wilfully breached the code of ethics under the Guidelines, it was no surprise that the festival was brought to a grinding halt. It is one matter that Matty Healy may not have agreed with the Guidelines, in which case the band should not have given the written undertaking and could have chosen not to perform in Malaysia. It is quite another matter for Matty Healy to audaciously violate the Guidelines.

It is unfortunate that the singer’s actions also robbed other artistes and vendors of their income and the concertgoers a good time. One can only hope that such incident does not happen again.

[1] https://www.thesundaily.my/home/fahmi-good-vibes-festival-cancelled-FE11267561 & https://www.freemalaysiatoday.com/category/nation/2023/07/22/good-vibes-festival-cancelled-says-fahmi/

[push h=”15″]

About the Author

Poon Wei Ying is a Senior Associate of XK Law who graduated with First Class Honours from the Cardiff University, United Kingdom. She believes in giving back to the society and that education can change a person’s life.

[push h=”25″]

Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

The Dewan Rakyat and Dewan Negara have passed a law to decriminalise attempted suicide in Malaysia.

The new law has removed Section 309 of the Penal Code[1], which had previously made attempted suicide a crime punishable by imprisonment of up to 1 year or a fine.

Although not common, there are individuals who have been found guilty of attempted suicide. One such case would be Fong Chee Ping[2], who cut his own neck and stabbed his own stomach after causing the death of his tenant, whom he had a crush on. Fong Chee Ping had admitted to the doctors treating him that he inflicted the injuries on himself. However, the Court acquitted Fong Chee Ping and ordered that he be kept in safe custody under medical supervision, due to his unsoundness of mind.

With the removal of Section 309 of the Penal Code, a person attempting suicide would not be treated as a potential criminal.

In line with that, the Mental Health Act 2001 has also been amended to empower Crisis Intervention Officers to apprehend any person attempting to commit suicide (or any person believed to be mentally disordered and dangerous) and bring that person to a psychiatric hospital.[3]

As far as attempted suicide is concerned, the law has been amended to do away with a punitive system and adopt rehabilitative steps.

On a different note, Parliament has clamped down hard on the abetting (assisting and encouraging) of attempted suicide.[4] Previously, the law made it an offence to drive someone to commit suicide, only if that person actually commits suicide and dies. If the victim had attempted suicide and survived, the previous Sections 305 or 306 of the Penal Code would not have applied.

Now, the law has made it an offence to abet suicide even when it does not result in an actual suicide and no life has been lost. The law, as amended, need not wait for death before intervention.

Deputy Minister Ramkarpal Singh explained that the new Sections 305 or 306 of the Penal Code may address cases of extreme cyberbullying, where victims are encouraged to take their own life.[5]

Overall, the amendments to the Penal Code and Mental Health Act 2001 demonstrate that the law and crimes we know are capable to adapting to the everchanging societal needs and threats.

Life is precious, and the law must be capable of protecting life preciously.

[push h=”15″]

[1] S. 4, Penal Code (Amendment) (No.2) Bill 2023

[2] Fong Chee Ping v Public Prosecutor [2014] 1 LNS 1931

[3] S. 2, Mental Health (Amendment) Act 2023

[4] S. 2 & S. 3, Penal Code (Amendment) (No.2) Bill 2023

[5] Dewan Rakyat, 22 May 2023

[push h=”15″]

About the Author

Sahain is a Legal Associate of XK Law. He graduated with Honours from the National University of Malaysia. Sahain believes that the legal fraternity plays an integral part in the operation of the rule of law in Malaysia and is keen to utilise his legal education towards the betterment of society and the country.

[push h=”25″]

Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

The name Sheila is often associated with celebrities – Sheila Majid, Sheila on 7, Sheila Mambo – to name a few. Recently, new to the scene and in the limelight is Inspector Sheila Sharon Steven Kumar, who is the media’s and netizens’ new obsession.

Inspector Sheila is a policewoman whose name blew up in social media after several videos involving her went viral. In one of the videos, she can be seen gesturing aggressively and speaking rather rudely to a lower ranking fellow police officer. In another she is seen again talking rather sternly to another police officer. In the third video, Inspector Sheila appears to be taunting a woman in a parking lot while making remarks over her appearance.

It is unclear from the videos what exactly the dispute was between Inspector Sheila and these other persons. What is clear though is that many netizens felt Inspector Sheila was rather laud, aggressive and disrespectful to the people she was speaking to in those videos.

As things transpired, in late June, she was charged with three criminal offences at two separate Magistrate’s Court in Selayang. The first charge is under Section 506 of the Penal Code for criminal intimidation of a 69 year-old woman. The second charge is under Section 509 for insulting the modesty of a 41 year-old man, while the third charge is under the same provision but in respect of a policeman of a lance corporal rank.

At the point of writing this piece, Sheila pleaded not guilty to all the charges levied against her.

Question is – would the charges against her be sustainable? Let’s look at the legal hurdle that the Prosecution would need to cross to prove each of the offences that Inspector Sheila has been charged for.

In an offence of criminal intimidation, the Prosecution would need to prove that Inspector Sheila committed the following:

Limb 1:         Threatened to injure the victim’s self / reputation / property; and

Limb 2:         The threat was made with intent to cause alarm to the victim; or

the threat was made with intent to cause the victim to do any act which the victim is not legally bound to do OR from doing any act which the victim is legally entitled to do in order to avoid the threat from happening.

In an offence of insulting the modesty of a person, the Prosecution would need to prove that Inspector Sheila committed the following:

Limb 1:         Uttered any word, made sound or gesture, or exhibited any object, with intention to insult the modesty of the victim; and

Limb 2:         Intending that such word or sound shall be heard, or that such gesture or object shall be seen by the victim or intrudes upon the privacy of the victim.

Whilst many netizens have judged Inspector Sheila guilty in the court of public opinion, it is important to remember that in the Court of law, one is innocent until proven guilty. At this point, the full facts of each case have yet to be unveiled, documentary evidence and sworn testimonies have yet to be adduced. It remains to be seen whether Inspector Sheila will be held guilty or if any twist in the tale would emerge.

Given the colourful and flamboyant personality that Inspector Sheila appears to project in public, this trial promises to be a very entertaining one.

Hold on tight, the show has just begun!

[push h=”15″]

About the Author

Afiq Iskandar is a Legal Associate of XK Law. He graduated from MARA University of Technology, Malaysia. Afiq has multiple interests in life beyond reading law viz. sports, film, music and poetry. He believes that art, in whatever form they may be, is a necessity of life.

[push h=”25″]

Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

The nation could collectively be heard letting out cries of disappointment when we discovered that Taylor Swift and Post Malone are going on a world tour but will not be coming to Malaysia.

Have you ever wondered why foreign artistes overlook Malaysia in their world tour schedules?

Guidelines for foreign artistes who are looking to perform in Malaysia are published by the Central Agency for Application for Foreign Filming and Performance by Foreign Artistes (PUSPAL), established under the Ministry of Communications and Digital. The guidelines set out among others, the code of ethics to be observed by artistes at concerts and the period that is prohibited for foreign artistes to hold big scale performance/concert in the country.

With regard to the foreign artistes’ clothing, both male and female artistes are required to dress appropriately. Female artistes are not allowed to wear clothing that are overly tight, see through, exposed at the chest area and above knee length. It is interesting to note that under the new guidelines published on 31 December 2022, male artistes are not allowed to cross-dress/dress up like a female at concerts.

The new guidelines also set out the days on which foreign artistes are not allowed to hold big scale performance/concert. These dates are:

• During the National Day celebration from 30 August to 31 August
• During Malaysia Day celebration from 15 September to 16 September
• Islamic public holidays and the night before Islamic public holidays (unless permission is obtained from the respective Islamic authorities), which include Awal Muharram, Hari Raya Aidilfitri and throughout the month of Ramadhan, as a sign of respect for the religious holidays.

In the event the guidelines/conditions imposed by PUSPAL are not adhered to, legal action can be taken against the concert organiser. In this regard, the organiser of the Pussycat Dolls’ concert back in 2006 was fined because the artistes were not dressed appropriately on stage[1].

While it may be an overstatement to emphatically say that foreign artistes shun Malaysia in their world tour solely because of the PUSPAL guidelines, it does not take much for anyone to recognise that the guidelines could play a part in dissuading foreign artistes from staging their concerts in Malaysia. It is likely that there will be more disappointments in store for Malaysians who may have to pop into the neighbouring country to get a glimpse of their favourite artiste.

[1] https://www.accessonline.com/articles/pussycat-dolls-too-sexy-for-malaysia-55255

[push h=”15″]

About the Author

Poon Wei Ying is a Senior Associate of XK Law who graduated with First Class Honours from the Cardiff University, United Kingdom. She believes in giving back to the society and that education can change a person’s life.

[push h=”25″]

Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

An obsessed ex that persistently tries to contact you despite you having communicated your disapproval. A stranger that is always lurking at every corner and following you on your way back home. A dodgy person sitting in a car with its lights turned off parked outside your home for hours. Unwarranted ‘gifts’ or objects given to you or sent to your work place. You feel uneasy and anxious. You feel like a shadow is watching your every step.

These are all possible scenarios of stalking which may have occurred to you or someone you know. You may have read of murder, assault or battery cases that started off as stalking cases. Stalking was previously not criminalized in Malaysia. It was often the case that the law only kicked in and punished the offender when the victim has already suffered some harm. The law was not proactive.

This has now changed. The Malaysian Parliament passed the Anti-Stalking Bill that was presented by the Law and Institutional Reform of the Prime Minister’s Department in March 2023.

The Anti-Stalking Bill introduced a new offence in the Penal Code i.e. section 507A which at subsection (1) states: –

“…whoever repeatedly by any act of harassment, intending to cause, or knowing or ought to know that the act is likely to cause, distress, fear or alarm to any person of the person’s safety, commits an offence of stalking”.

It is worth highlighting that the offender could either be a stranger or someone you know.

The word ‘repeatedly’ is defined to be at least on two occasions. So, an act of harassment must happen at least twice.

Section 507A(2) goes on to define what may be an act of harassment. The word ‘may’ indicate that the list is not exhaustive and may be interpreted by Court on a case-to-case basis. An act of harassment consists of the following: –

1. following or tracking a person in any manner or by any means;
2. communicating or attempting to communicate with a person in any manner or by any means;
3. loitering at the place of residence or business of a person;
4. giving or sending any thing to a person in any manner or by any means.

Anyone who is found guilty of stalking will be punished with imprisonment for a term not more than three years or with fine, or both.

Other than that, the Criminal Procedure Code has also been amended in light of the Anti-Stalking Bill. A new section 98A is introduced whereby a victim of stalking, among others, may apply to the Court for a Protection Order against a person who is being investigated for stalking. The Protection Order, if granted, shall be effective until the investigation is completed, or until the criminal proceeding in Court is completed (whichever is later).

So next time you feel you are being stalked by someone, know that the law can come to your aid proactively. Seek legal advice from an experienced criminal lawyer and take action. You are entitled to enjoy your personal liberty every day without fear and distress.

[push h=”15″]

About the Author

Afiq Iskandar is a Legal Associate of XK Law. He graduated from MARA University of Technology, Malaysia. Afiq has multiple interests in life beyond reading law viz. sports, film, music and poetry. He believes that art, in whatever form they may be, is a necessity of life.

[push h=”25″]

Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

[/column]