Our government is adamant that the amendments it is pushing through vis-a-vis S.114A of the Evidence Act is necessary to make Internet users responsible for their on-line activities.

According to the article, our de-factor Minister of Law claimed that, “Sometimes with slanderous or libellous statements online, it is difficult to enforce the law against them because it isn’t easy to find the person who first put the information on the Internet, which results in no action being taken but a person has been aggrieved.”

Lazy ass mofo.

Can I say that this is the result of lazy and stupid police work. You need to hire better law enforcers and send them for the appropriate training. Other countries are able to capture and take down hackers, pirates, and various other people who commit crimes on the Internet.

If our local police are unable to do so, they need to learn to do it. While I agree that the amount of work necessary is quite involved, that’s the whole point. The government does not get a free ride and point the fingers freely at anyone they feel like without any proof.

He goes further to add that, “Under the amended Act, we shift the burden to the owner of the laptop or account so that we can get to the source”. The amendments flip Justice on its head by shifting the burden of proof to the accused, The Malaysian Bar, said they were concerned with the presumption of guilt in the Act.

According to the article, “Internet users have criticised the amendment, saying it was unfair as websites and social networking accounts could be easily hacked to post defamatory statements.”

As a computer expert and a student of Law, I would like to say that hacking isn’t the issue here. The point is that there is no evidence that one can submit to prove that the statement isn’t theirs. You cannot seek proof for something that doesn’t exist. It’s just not mathematically possible.

That’s like asking someone to proof that they’re not Santa Claus.

Further stupidity is present in the article, “However, some users agreed with the amendment, saying it was logical that the person whose name was associated with the account be held responsible for statements made on the account. If it was not you, then you need to prove it.”

Can I humbly ask in my utter stupidity – how do you prove that an account doesn’t belong to you?

Let’s say that I create a random Google account and call it Mark Zuckerberg. I proceed to write about stuff at Facebook. I even post photos of my recent wedding with Dr Chan. I talk about my daily net-worth as it fluctuates with the stock price. I build up the profile over time and then one day, Mark is asked to prove that the Google account doesn’t belong to him.

What evidence can he submit to prove that?

He can swear under oath, submit a statutory declaration that says that he is not Mark Zuckerberg because he would not get caught dead with a Google account. But that’s not proof. That’s not even doubt. It’s utterly irrelevant.

He can swear that he doesn’t know the password to the account. I can be totally honest about it too because I seriously do not know my passwords. I can swear that I don’t even know my password to this WordPress account.

He can swear that he has never ever logged into Google before but it can be shown that there have been a lot of logins to Google from Facebook computers. Even if that wasn’t true, he could have logged in via a third party network such as TOR or an open proxy.

I hope that I have made my point.

There is no evidence that Mark can submit to prove that the account doesn’t belong to him. The only way to do that would be for him to actually find out whom that account belongs to and to prove that the account belongs to someone else.

But according to our government, that’s too difficult for our government to do. Imagine how difficult that would be for a private citizen like Mark or me.

We’re all screwed if this law goes through.

It’s senseless.

Entrance to the Senate (Photo credit: Wikipedia)

According to the news report that said inter alia “The Election Offences Amendment Bill passed in Parliament in April will be withdrawn after meeting with resistance from lawmakers on both sides of the political divide.”

This interested me as a Law student because I was interested in figuring out the mechanism in which a Law that has been passed by the Dewan Rakyat (House of Representatives) is to be aborted. I already know from class that the Dewan Negara (Senate) has very limited powers in rejecting or vetoing bills originating from the lower house.

Article 68 of the Consti is very clear about the types of bills that can be vetoed by the Senate (essentially, amendments to the Consti) and the types of bills that do not even need Senate approval (essentially, money bills). For everything else, the default power that the Senate has is only in delaying the bill by suggesting amendments for consideration, which can incidentally be ignored by the lower house.

Accordingly, the Senate has absolutely no powers to reject the amendments to the Election Offences Amendment Bill. The question the becomes, how does our government plan to withdraw the bill?

The news article is light on details but our Consti very clearly states in Article 66(3) that:

When a Bill has been passed by the House in which it originated it shall be sent to the other House; and it shall be presented to the YDPA for his asssent when it has been passed by the other House…

Oh my goodness.

Any law student can tell you what shall means in the Law. It means that there is no choice or discretion allowed. The Bill must be introduced to the other House. Once introduced in the other House, they’re then bound by A.68 and they will not have the power to destroy the Bill, but merely to delay it.

So, I’m not sure how our de-facto Law Minister plans to work around the Consti by aborting the process. I hope to be schooled in how such a thing can possibly happen within the confines of our dearest Consti.

For the avoidance of doubt, I am totally opposed to the matters being introduced by the amendment bill. But the proper way to do it would be to send the bill to the Senate, have them disagree to it, then it will be sent back to the lower house, where it will be directed to be not sent to the YDPA for his assent.

Marriage Day (Photo credit: Fikra)

We covered a lot of topics in class today, divorce, legitimacy, custody and inheritance. This blog entry is only about divorce though, because I find it interesting, especially since there are some peculiarities about the Law in Malaysia when it comes to annulment of marriages.

First, there is the standard talaq that is initiated by the husband. There are several categories of it but essentially: talaq raj’i, talaq bain sughra, and talaq bain kubra.

Talaq Raj’i is more a form of separation than an annulment, which is governed by S.51 of the Act. Essentially, the couple can choose to revoke their divorce, at any time, during the cleansing period Iddah of about 3 months. This is the lightest form of divorce with the least consequence.

Talaq Bain Sughra is a real divorce, which is governed by the same S.51 of the Act. In this case, the divorce cannot be revoked but the couple can choose to re-marry again, after the Iddah period has passed. In my opinion, this is a real divorce in the true sense of the word.

Talaq Bain Kubra is a final divorce, which is governed by the same S.51 and S.14 of the Act. In this case, the divorce cannot be revoked and the couple cannot choose to re-marry again, even after the Iddah period. This divorce is final and binding. They can only re-marry after the wife re-marries and re-divorces someone else first.

Also, the number of times a couple divorces is also considered. If a couple is divorced three times (talaq tiga), the divorce is considered final – of the last category. This is unlikely to happen in real-life as most cases of talaq tiga are done at a go, usually in a fit of anger.

Next, there is the issue of method of divorce. The most simple, obvious and direct method is Talaq Sarih which is basically the husband telling the wife in the face that he divorces her. The second method, which is fast gaining popularity is Talaq Kinayah which is an indirect method such as divorce via SMS, or through the use of ambiguous words.

Regardless of methodology and category of divorce, a marriage can only be annulled in the Court. This is governed by S.124 of the Act that does not allow any form of divorce outside of the Courts. A grace period of 7-days is give to the couple to report any divorce to the Courts and this is governed by S.55A(1) of the Act.

Typically, during the process of the divorce, the Court will appoint an arbitration committee to arbitrate as most divorces are messy and this is governed by S.47-S.49 of the Act. They can take several rounds of arbitration and finally, the recommendations are forwarded back to the Court.

Secondly, there is Khul’ governed by S.49 of the Act that essentially allows the wife to initiate the divorce. This form of divorce essentially allows the wife to ‘buy’ herself out by paying the husband a fee. To me, this is an interesting form of divorce. However, it is generally only accepted if there are irreconcilable differences on the part of the wife.

Thirdly, there is Fasakh governed by S.52 of the Act that is essentially a court ordered divorce. The grounds for such a divorce are many and listed in great detail in the Act. Some interesting examples are when the husband is imprisoned for more than 3 years, failure to perform marital obligations for a year, husband was impotent at time of marriage, insanity and also a partner suffering from an STI.

Fourthly, there is Ta’liq goverend by S.50 of the Act. This form of divorce is unique in Malaysia as it is sourced from Malay Adat instead of from Islamic Authority. Essentially, my take on this is that it’s a form of divorce by contract, where both parties agreed verbally to divorce under specific conditions. Once these conditions are met, the wife can initiate the divorce.

From the list of cases given for our reading, this form of divorce is the most common in Malaysia as it is also the easiest to do. From case law, one can almost make all kinds of requirements and conditions that when met causes the marriage to be voidable.

Finally, there is Li’an which is a very special case of divorce where the husband catches the wife in the act of adultery with another person. He can then apply for a divorce by taking an oath.  This is governed by S.50A and S.110 of the Act. This form of divorce is final.

That’s it – a quick description of the various forms of divorce under Malaysian Islamic Law. Of course, there are a lot more details to cover but those are details that I’ll have to cover for my own examinations.

My take on it is that the freedom to divorce is generally in the hands of the husband, while the wife is allowed to initiate divorce under specific conditions. This may seem biased but this has to be balanced with what happens after divorce. The wife can file for all sorts of claims that are biased to her instead.

Therefore, my reading of the Law is that Islamic Law allows one to easily get married and to easily get out of it as well (in the sense that the rules and regulations are all nicely laid out). I think that this is essential for a way of life that encourages marriage and procreation by reducing the risk and consequence of failure.

Till death to us part may sometimes be taken too literally.

But that’s just the simplistic overview. The legal requirements for vicarious liability are that:

1. there must be a legal tort committed by the EE against P;
   There must be one of the other legally recognised torts committed by EE against P. There is no ifs no buts. This was highlighted in the case of Kerajaan Malaysia v Lay Kee Tee & Ors which involved the pig farmers suing the government for negligence during the Nipah virus episode that resulted in 40+ deaths. It was held that they could not sue the government directly for negligence but had to first show that there was a tort committed by the government employee first, before that liability can be transferred to the government.
2. that there exists a special relationship between ER and EE;
   Vicarious liability is by no means limited to ER and EE but that’s just the most common, and easy to understand. There are generally three tests that can be used to see if someone is in a special relationship:
   1. Control Test
      It was laid down in Short v J & W Henderson Ltd that four factors are to be considered i.e:
      • the power to selection in the ER.
      • the power to determine the salary or other remuneration.
      • the power to control the method in which the work was done.
      • the power to terminate the EE’s services.

      It was further added in Collins Hertfordshire CC that a contract of service existed if the employer had the power to instruct the employee and to control the method in which work was done.

      However, this test has been found wanting as there are lots of cases of people who are employees but whose employers have no power to control their work e.g. doctors in a hospital and other professionals.

   2. Organisation Test
      It was held in Stevenson, Jordan and Harrison Ltd that it was not so easy to differentiate between a contract of service with a contract for services. So, another consideration would be whether a person was integrated into the organisation or merely doing work for the organisation.

      In Mat Jusoh b Daud it was held that while the plaintiff was not their employee but an employee of their contractor, his work product was integral to their business and was therefore their employee. Hence, the integrity of the task being done is just as essential to determining whether a person is an employee, and not just to follow the classical definitions.

   3. Mixed Test
      This is also called the common sense test. It is essentially a combination of both the tests above to determine if any special relationship exists between the ER and EE.

   However, in Malaysia, the preference is to use the control test. I think that this is because that is much easier to prove on paper than to get into the convoluted and subjective organisation test. In a majority of cases, there is no problem in proving employment. However, there are some grey areas such as surgeons at a hospital.

   In Tan Eng Siew v Dr Jagjit Singh, it was held that as the doctor had a private practice and was merely renting the hospital facilities such as operating room etc, the hospital could not be held liable to the plaintiff.

   Also, another grey area is where employees are seconded or lent to another organisation. It is held in Mersey Docs and Harbour Board that because the seconded employee, although working for the new employer, was actually still under the control of the old employer, the old employer was liable.

3. the tort must be committed during the course of employment.
   The general rule is that if the tort was committed while in the ‘line of duty’, the employer should be held ultimately liable. This is much more difficult than it sounds because the problem then becomes, what is considered ‘line of duty’.
   • Carelessness while on the job.
   • Mistake of worker.
   • Worker delegating responsibility.
   • Worker acting for own benefit.
   • Protecting employer’s property.
   • Disobeying direct orders.
   • Frolicking.
   • Fraud.
   • Theft.
   • Sexual abuse.
   • Statutory duty.
   • Time of employment.
   • Location of employment.

   Each of these things have a whole set of issues to be considered. Time for that in a future blog entry.

There’s another new bill currently in drafting mode titled “Technologists and Technicians Bill”. Some quarters are seeing this as a reincarnation of the Computing Professionals Bill but I don’t.

The reason is because I also know that there is an effort in at the tertiary education level to split the current engineering courses into B.Eng and B.Tech courses, catering to different market segments and that this bill is a natural culmination of the act.

But before we proceed, we’ve got to first look at the future segregation of the engineering world into B.Eng and B.Tech people. The argument is that there are two different market segments to address. Where I teach, the faculty has even been renamed this year to include “Technology” in addition to Engineering.

On the one hand, our local industries need to have a huge work-force to get shit done. This is where the B.Tech is supposed to come in. Ideally, these people are supposed to be more practical oriented with their education more heavily biased towards addressing direct industry requirements.

We already have certain Bachelors degree at certain local universities that were designed with direct input from certain industry partners and where most of the graduates end up heading to those industry partners for jobs later. So, that’s the idea behind a B.Tech – to address an immediate market need.

On the other hand, we still need people to dream up new ideas and to solve more abstract stuff. This is where the B.Eng is supposed to come in. Ideally, these people are supposed to be equipped with abstract problem solving skills and their syllabus is biased at something like a 80/20 level with more theory and less practical.

So, these people are supposed to dream up the next big thing and to design future technology. This group of people are supposed to fill up the market need for say, research, development and design work – stuff where you end up sitting in front of a PC for most of the day instead of getting your hands dirty on the line.

In terms of professional registration, the second group of people need to be registered as is already done under the law. However, the issue is whether the first group of people should also fall under the BEM is something arguable. At the moment, they do fall under BEM if their degrees are accredited by the EAC.

So, what happens to the B.Tech people when we split the engineering courses up. They were previously under the BEM and so, the natural idea is to extend this to include a new board that caters to the registration of these B.Tech people.

Anyway, a lot of people will disagree with what I’ve said because I also thought it weird at first, but that’s generally the idea that I caught onto last year. We cannot deny that there is a disconnect between what our universities supply and industry needs. This is one of the ways to plug the gap.

Now, back to the actual text of the Bill itself.

The definitions:

“technologist” means a person who applies knowledge of mathematics, science and technology specialisation to defined procedures, processes, systems or methodologies;

One can even argue that medicine is covered by this, which I think is the intent of the bill – to include medical technologists. There is a growing demand for medical technologists – i.e. people who can maintain modern medical equipment – as the number of hospitals in this country is also growing.

I think that this is the idea that we can imply from the definitions:

“technical services” means services provided in connection with any operation, product testing, product commissioning and product maintenance and includes any other technical services approved by the Board;

“technology services” means services in connection with product development, manufacturing, operation, product testing, product commissioning and product maintenance and include any other technology services approved by the Board;

I think the issue that most people will take with the bill, particularly the IT people, are S.20 and S.21 of the bill that provides for the registration of these professionals. Any recognised degree in “Technology” is mentioned explicitly. So, if someone graduated with an IT degree, they might fall under this category but I think that the intent is to capture the B.Tech people.

The rest of the bill seems to be quite boiler plate.

So, I think that the bill is rather innocuous as it is. Unlike the CPB, which sought to limit the ability of people to work within the computing field and to limit the ability of someone to sell their services to the CNII industries, this one doesn’t.

As of this moment, this bill just just for the purpose of registration. I think that whomever are behind this bill probably learned a lesson from the CPB2011 mismanagement and will hopefully keep this bill as innocuous as it presently stands.

After that, I went to the tax office to get the contract stamped because that’s the normal thing to do with contracts. However, while I was there, I learned something new, which might interest other local start-ups especially with respect to IP issues.

It turns out that there is no need to stamp an IP deed of assignment.

According to Schedule 1, Item 32, Exemption (d) of the Stamp Act 1949, IP assignments are exempted from stamp duty. It’s the very last in a list of exemptions and is worded as:

Exemptions
(d) Transfer or assignment on sale of any copyright, trade mark, patent or any similar right.

So, the tax office was unwilling to stamp the agreement for me as it is exempted under the law.

What this means to most start-up companies is that you can easily and rather quickly execute IP assignment contracts, between the employees with the company, and between companies as part of normal commercial IP transactions.

I learn something new everyday.

I was unimpressed by our lecturer, Dr Wardah, today as she seemed unprepared for the topic, lacked familiarity with the material and not quite a specialist in the topic. She started the class by saying that she was ‘dragged’ into it by Norchaya. That already sounded the alarm bells in my head.

She seemed to be reading from some personal notes, which she didn’t seem to be totally familiar with. When asked some tricky questions, she didn’t know the answers and gave non-answers, which is the typical method that lecturers use to handle topics that they’re not quite specialised in.

According to the university website, her area of specialisation is sports law and while that is probably tort, it probably doesn’t have much defamation in it. So, I can at least empathise with her (being guilty of similar things myself).

My comments here are done without malice as I have no personal agenda against her. My only relationship with her is as a student. I hope that she’ll do better in the next class, just like how I’ve actually grown quite fond of Pn Izura, after she nearly put me to sleep in the introductory class.

Anyhow, I claim fair comment, if she ever reads this! (So, I did learn something in class today!)

Now, back to the issue of defamation. I thought I had it nailed down before this but now it seems that things are murkier. I shall have to read up more about defamation on my own later.

Slander vs Libel
Defamation is broken up into two categories – slander and libel. I’ve already covered the differences in a previous entry and I shan’t go through them here again. I would just add that I was quite surprised that I was able to remember the 4 types of defamations that are actionable per se in class today. My mnemonic must work – virgin, STI, rape, and prostitution.

So, blogging would clearly fall under libel.

Elements of Defamation
Now, there are three major elements that must exist before we can have a prima facie case for defamation.

1. Words – This means that the words must be defamatory. Keep in mind that words in this case does not just mean spoken or written words but covers a broad swath of communication including imagery, signals, body language etc. Whether they are defamatory can be tested using a number of methods:
   • Ordinary/Natural meaning – as it implies. If I call someone a liar, that can possibly be defamatory as the ordinary meaning of liar is obviously negative. However, there may be some subjectivity especially since the connotation behind words can change with time.
   • Inference/Innuendo/Juxtaposition – as it implies. This can have a wider reach as we often imply but not directly accuse someone of something negative in our culture. Again, there may be some subjectivity as this is often influenced by culture and social norms that change with time.
2. Identity – This means that the defamatory words must be aimed at someone that can be identified by a third party. Keep in mind that it is perfectly possible to defame a group of people or organisation. And the main point here is that the person doesn’t need to be named directly. It is sufficient that the person can be identified by a reasonable third party.

   That is why I don’t understand why Malaysian newspapers like to beat around the bush when naming people. It piques my interest even more as I would try to figure out who they were talking about. It is not a valid legal defence even if they don’t name the person, as long as they provide enough information to identify that person.

3. Publication – This means that the defamatory words must reach a third party i.e. the Person must have been defamed in the eyes of another by the Defamer (woot!). There are lots of issues here with publication, but in terms of a blog like mine, there is no real issue as it is clear that the words written here are published to the world.

   There may be some concern, particularly if I am not making the claim but merely quoting some other article or merely reporting something that was said by someone else. I am not quite clear with this part yet but I will look into it for sure.

So, once these three elements have been met, there will be a prima facie case for defamation. Once sued, the Defamer has a number of legal defences that can be raised. However, we shall cover that in another blog entry.

Again, I shall look at this through the lens of a start-up since I use similar language in many of my works.

Firstly, exemption clauses have to be notified to the person accepting it. This notification has to be sufficient. How this notification is done depends on several factors of course.

Brought to Attention
It was held in Sanggaralingam v Wong Kook Wah that it was not sufficient to merely display a notice to the customer up-front about the exemptions, but it was necessary to bring the attention of the customer to it. This can be done by using large bold blinking letters or simply mentioning it to the customer before they signed. The key point is that any exemption clause must be brought to the attention of the customer.

In terms of a web start-up, this means sticking the exemption clause clearly in a place where the customer can get to it. They must know that it exists and must be able to easily find it if they want to. So, sticking a big disclaimer page might be a useful first step of doing it.

Presumption of Knowledge
It was held in Parker v South Easter Railway that presuming that someone else has knowledge of the exemption is not right. Therefore, merely sticking up a large bold blinking sign board is not necessarily sufficient. It is also important to ensure that the customer knows of it.

In terms of a web start-up, this means that we cannot assume that the customer has access to the terms and conditions that we have stuck onto our website. We don’t need to care if they have actually read it, but we must ensure that they know of it’s existence, which leads us to our next point.

Not Read
It was established in L’Estrange v F Graucob Ltd that having signed a document, the excuse of not reading it cannot be heard, as long as there was no fraud or misrepresentation during the process. This is typically used by websites where a user cannot possibly proceed until they click on the “I Accept” and the “Next” buttons.

So, for all start-ups providing any sort of service that needs to be exempted from liability, it is essential that they get their users to sign through terms and conditions. Whether the user actually read it or otherwise is not essential in the law as long as the actual terms were provided up-front.

Other Issues
It was established in multiple cases including Thornton v Shoe Lane Parking that providing the actual exemptions after the contract was already formed, is pointless. This means that any exemption clauses must be brought to the attention of the customer before they become our customer.

It was also held in Curtis v Chemical Dyeing Co that misrepresentation can nullify the exemption clause. Therefore, it is crucial that all copies of the terms and conditions say the same thing. If there is any confusion with multiple versions of the clauses, there will be a case of misrepresentation.

Next, is a question of construction – whether the exemption clause having already been incorporated into the contract, is valid. There are four general rules for this.

Contra Preferentum
The first rule that will be applied to interpreting exemption clauses is the contra preferentum rule, which basically means against the preferred party. This means that any ambiguities in the exemption clause will be interpreted to be against the party making the exemption claim.

Negligence
Now for the ringer – negligence. It was held in Canada Steamship Lins v The King that if negligence is to be exempted, the clause must contain express language to that effect. This means that in order to exempt liability from negligence, it was necessary to include words such as “exempted from damages and losses including those caused by negligence” or similar.

However, the law in Malaysia has changed recently. An amendment to S.24(a)-(d) of our Consumer Protection Act now includes wording that classifies a term as unfair if it includes words that exempt negligence.

However, the new law goes into much more detail on examples of various forms of unfair contract. Reading the illustrations are really enlightening. It’s not just negligence that is considered an unfair term now, even unilateral alterations to terms without prior notice, is unfair!

According to wikitionary, autochthony is: “An aboriginal condition or state.” Thanks a lot. That doesn’t mean a lot does it but when applied to constitution, wikipedia has a much better description for it:

Constitutional autochthony is the process of asserting constitutional nationalism from an external legal or political power. The source of autochthony is the Greek word αὐτόχθων translated as springing from the land. It usually means the assertion of not just the concept of autonomy, but also the concept that the constitution derives from their own native traditions. The autochthony, or home grown nature of constitutions, give them authenticity and effectiveness. It was important in the making and revising of the constitutions of India, Pakistan, Ghana, South Africa, Sierra Leone, Zambia and many other members of the British Commonwealth.

The issue then is whether our Constitution is of an autochthonous nature? (the spell checker is complaining!)

The crux of the argument rests on whether or not our Consti was home-grown or otherwise. For this, we will need to refer back to the history of how our Consti came into being.

Our written Consti was drafted by the Reid Commission, which was an independent commission made up of legal experts from parts of the Commonwealth. So, we can argue that our Consti was not autochthonous as it was not home-grown but written by a bunch of external legal experts.

On the other hand, it was clear that the Commission actually solicited feedback from the ground. In fact, more than 130+ parties were consulted, on record. These parties were from various local groups representing every conceivable part of society from royalty, to the various ethnic groups and all.

So, we can also argue that our Consti was autochthonous as it was drafted with the ideas and input of our own people and the members of the Commission were merely there to moderate and formalise the points based on the discussions. But the key point in the ideas came from the indigenous people.

Unfortunately, the main points of discussion largely dwelt on the issues that concerned the people – citizenships, Malay rights, rulers, etc. There was little contention on the other issues of government, institutions, processes, etc. Most of those parts were largely copied from the Indian constitution.

Therefore, it is hard to assert that our Consti is autochthonous or otherwise. That’s the historical point of view.

But we must then ask what is the point of having an autochthonous constitution if all it affects is who wrote whose ideas down. The key test of an autochthonous constitution is whether the people put their heart and soul into it, are passionate about it and are willing to fight to defend it.

So, with that as a key test, let’s test our Consti again. If someone even suggests the idea of removing Malay rights, certain parties get so riled up and can threaten to bathe keris in blood and all that. If someone suggests that our country is an Islamic state, certain parties get up in arms over it as well. With that test, obviously our Consti is of an autochthnous nature.

However, when certain government institutions are raped, robbed of their independence and reduced in power while the balance of power shifts to other state organs, we hardly even bat an eyelid. So, we are clearly not willing to defend the basic structure and separation of powers in our Consti.

There is no solution to this issue unless we decide to one day, redraft the constitution. While this is technically feasible – just look at our neighbour to the north who has rewritten their constitution so many times – it is not a decision that we can take lightly because there are serious repercussions to doing this.

That said, if we were to rewrite the constitution today, in essence writing Consti 2.0, it should then become an autochthonous constitution if and only if, everyone’s views were considered and incorporated into the constitution. While difficult, this has been proven to be doable by the Reid Commission.

So, that’s the only answer that I have to the question of autochthonity of our Consti.

My gut instinct tells me that they have to be, but let’s look at the Law.

Oral Terms
Establish the 4-tests.

Parol’s Rule
The parol evidence rule prohibits a person from adducing oral evidence where the terms of the contract have been put into writing. This means that where a written document exists to record the agreement, the court will not allow the introduction of oral evidence to contradict the terms of the agreement.

The reason for this is established in Tindok Besar Estate S/B v Tinjar Co where it was decided that introduction of extra evidence that modify the terms of the agreement would open the floodgates to all manners of dispute and no agreement would be safe from being re-written in court.

Therefore, T is preliminarily right in telling S that those negotiated terms that are not included in the written contract cannot be introduced in court, if S were to bring the case to court – except that there are exceptions to the parol evidence rule that have reduced the effectiveness of S.92 of the Evidence Act.

However, in Tan Chong and Sons Motor Co v Alan McKnight it was decided that the rule only applied when all the terms negotiated had been reduced to writing. If some terms agreed to orally were left out, those terms could still be introduced as evidence.

Collateral Contracts
In addition, S.92(b) of the Act allows the admission of parol evidence on the existence of any separate oral agreement on matters where the document is silent and that are not inconsistent to it. This device is a collateral contract and is particularly useful where an oral statement is made which induced the party to enter into contract.

The oral contract is considered a separate contract but exists side-by-side with the main contract. Therefore, it does not violate the parol rule but is a work-around for the limited situation where the oral terms induced the party to enter into contract.

It was held in Kluang Wood Products S/B v Hong Leong Finance Bhd that the requirements for this are that there exists a representation that was intended to be relied upon and used to induce the party into signing the contract. Therefore, the representation itself must amount to a warranty, collateral to the main contract.

Therefore, the issue now is whether the representations made during the negotiations between S and T were relied upon and induced the other party into signing the contract and therefore exists as a collateral contract, side-stepping the parol evidence rule.

Summary
From this, it is quite possible that the representations made by T during the course of negotiations form a collateral contract and are legally binding. The rule to determine this depends on whether they were intended to be relied upon and used to induce S into signing the contract.

The question itself is not clear on this but this can be inferred from the insistence by S that T include those representations in the written contract. Those terms must have been important to S. Therefore, I would argue that the representations are legally binding in the sense that they exist as a collateral contract.