Kyle Fahkrurazzi

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The rules that govern relations between states are termed as International Law and there is no superior authority to enforce such rule over states (multilateral treaties do not apply to all states, but only to those which have consented to be so bound, by signing and ratifying or acceding to them). International law is considered as binding upon them and it is due to this fact that the rule receives its status of law. Therefore, a state will argue that it has not agreed that such a rule is to be binding upon them or that the rule does not apply to the particular circumstances, instead of arguing that international law does not exist, in a case where a state wishes to avoid a particular rule.

Another aspect of International law’s characteristic is that it is not set down in any legislation approved by a parliament as compared to Criminal Law (in Penal Code provisions) or Constitutional Law (Articles in Federal Constitution). The Statute of the International Court of Justice, part of the Charter of the United Nations, defines the sources of international law, as in Article 38, in the following language:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

i. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

ii. international custom, as evidence of a general practice accepted as law;

iii. the general principles of law recognized by civilized nations;

iv. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono (“according to the right and good” or “from equity and consecience”), if the parties agree thereto.

Article 59 provides ‘the decision of the Court has no binding force except between the parties and in respect of that particular case.’

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I wonder if I could merge last week post with this week post (due to my full life, lately) but somehow my personal story line has caught many persons attention and they keep insisting on new post, hungry for more updates. Ironically, only few of them left comments as remainder for me to return the favour when the time permits. Previously, I have the mindset of that personal stories were definitely not an attractive topic to be discussed with since what left of an ordinary person like me – everything looks so plain and boring. Besides, it’s the norm, when we tend to explain too much, other persons will call us liar and when we tend to be descriptive, they will label us being full of ourselves. This gonna be an epic!!!

It start with the phrase I hate ‘this is my first time’- the proposed title for last week post supposedly. I went to Syariah High Court for litigation in child custody (Hadhanah) and without knowing the general rule, I sat beside my co-trainee within the syarie lawyers bench until suddenly, “I think you’re not supposed to sit here, this seat belongs to female lawyers. You should sit over there,” Aimi whispered in my ear. Arghhhh....all this while, those eyes and nonverbal forms of communication from the audience, lawyers and the judge himself carries indirect signals. Why didn’t I notice earlier?

With my red face, I went outside the court after I bow before the judge, pretending I forgot something important and I assured my co-trainee that will return after a short while and this time I will join the male syarie lawyers. The court front door can’t be opened!! I’ve tried several times until the noise that I caused interrupted the proceeding. Another embarrassment. I asked a police officer to open the door for me and it made me feel so weak when I realised that the door was in a good condition. I certainly never expected that syariah court proceeding is completely different from civil court proceeding. I observed my Mentor (Syariah Division), Puan Salwani Bt. Khalid representing the clients and along the procedure I gained relevant input on matter pertaining to Fasakh and Harta Sepencarian.

On the next day, the Director herself delivered a brief lecture on summary trial procedure and impeachment proceeding. This is an early exposure to Law of Evidence and several components in Criminal Procedure. I studied a closed court litigation file in Child Adoption and to be frank, it’s a very long procedure. I had the opportunity to photocopy several documents for civil procedure with the hope that they might be useful for my LLB. (Hons). Due to my illness, I was absent on the next Monday and had to adduced show cause letter to my Mentor and of course, to the Director. I accompanied my second Mentor Encik Mah Soon Sin to Penjara Sungai Buloh for mitigation in criminal sentence. Most of the prisoners were charged with drug possession and robbery. I helped my mentor to conduct investigation for the want of formal procedure and for me, this is the time to be a bit of a show-off.

It is undeniable facts that they were four times bigger than me and not to mentioned, you knew already they way how criminals would behave (when they knew that I had the ‘key for their cell’). Of course, if we were outside, they would treat me nothing more than a wandering fly. I met one of my professional colleague, Jannah at the Universiti Malaya. Jannah you look awesome! December 24^th, the date that most of the practical students have waiting for has come but somehow I felt so different. Why I’ve to feel so bad? All this while, I’ve been crazy counting to this end. Cik Hidayah bought me lunch and I realised that, I’ve been too long here until I formed closed emotional bond with my mentors and administrative staff. To me, the presents that I bought for some of them were not equivalence to the skills, knowledge, support and kindness they gave to me...

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I try not to put any emotion in today’s post as much as I possibly can and it’s up to you whether to take it as my personal strategies from causing any reader get bored with my words or it serve as an alternative way to cover the dark side of myself. Firstly, it is wise to start with what I have been throughout the third week of my practical session.

I learned how to prepare a notice on demand for breach of contract and observed investigation session for divorce application (single party). Since most of the assistant directors were not around, for the next following days, I used my free time analysing procedural stages for grant of letter of administration and grant of probate. Previously, a professional colleague of mine asked me with distribution of estate according to law of intestacy and I unable to come out with accurate response.

I went through a number of client’s files, text books in the Bureau’s library and asked Puan Hasnah bt. Mohamad, the Bureau’s Commissioner for Oath for further understanding. Probate and administration of estate will be learned during LLB (Hons.) and early exposure guides me a lots. I accompanied my 4^th Mentor, Encik Mohammad Bin Tarap, Legal Assistant (Civil), to Magistrate Court for client’s mitigation in criminal sentence for stolen property; Section 411 of the Penal Code. It’s the right time to apply what I learned last semester. In commemoration of the birth of Sultan Selangor, last Friday was a public holiday.

Here comes the central concern of today’s post. Notwithstanding of what I have learned throughout the third week, there is one important thing that I’ll remember until the destined end day of my life – the quality of being hard working and compassion. Though there is nothing to proud off in my result slip, at least I knew that all energy and effort that I have put to help my friends for their better understanding in Administration of Trust is well worth a try. I left Part C question untouched but still I can make it, survived. It’s A-.

People may argue they rely only on lecture notes and lecturer’s words but it is too subjective. We have different way and method of learning. Sometime, we refer textbooks and other material for guidance, new mode of examples, and better understanding, and it’s too conservative to point out that any knowledge outside the lecture session is irrelevant.

This is not a personal diary but those who read this, I want you to know that I still here, stand on my own regardless of my health condition, personal hardships and difficulties. Even though I personally received repeated attacks from someone who live with me under the same roof until sometime it made me sick of continue blogging, entertaining the other classmate’s last-minute enquiries while there are a lot of chapters that I need to prepare before the examination date, keep uploading notes every week while others published it without my authorization, I want you to know that out of my limited life-time, I still have time allocated just for you – to help. And I’m free to teach you over, over and over again until you understand. And I knew that from the very beginning before I wrote this post, one of you might use this post as reference for what will happen in the future and there will be saying, “This semester he try to focus on international law. We will see how can he possibly survive this time.”

At least, there are some friends who know how to appreciate. And I still got a friend who ready to teach and share with me anything about blog stuff. And it is due to these people that I’ve decided to continue what I just started.

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November 4, (to begin with personal things), traffic congestion due to a heavy shower of rain in the morning is not a new phenomenon. I walked slowly from Plaza Perangsang to the State Mosque for Friday’s prayer after two times I went to the former sixth floor to grab the umbrella. I tend to easily forget something that I’m not for all time used to carry it along.

I met quite a number of my colleague at the High Court (MRCB Building) during the court hearing but inevitably had to leave the proceeding after being informed by my 1^st mentor (Civil), Encik Feisal that our case was unlisted. I also met Ku Amir during Friday’s prayer and Shahrul Azli with his friend, Fauzi at night. Well, at least I can now take a deep, relaxing breath once I knew that my slippers were not missing. It’s Nasrul’s doing.

I accompanied my 1^st mentor (Civil), Encik Feisal to the High Court for civil hearing on divorce and studied the case and the application forms to track what are the both party disputed with and the stages of the proceeding. I had the opportunity to observe and evaluate how investigation session operate when the 3^rd mentor (Civil), Encik. Mah Soon Sin, the 24 years old Assistant Diector, handled a case referred by an old man client for his legal expertise. He managed to control his emotional depression when Encik Mah advised that to challenge the indefeasibility of title is a high-profile case and is far beyond the civil jurisdiction conferred on the Bureau.

I went to Kolej University Islam Antarabangsa Selangor (KUIS) for ‘Klinik Guaman’ exhibition booth and respond to the visitor’s enquiries about the Bureau’s roles, organisation and jurisdiction. Most of the visitors were lecturers teaching for and student of Bachelor of Shariah with Law (Hons.), and some of them were administrative staff from the other booth like Malaysian Syarie Lawyer Society and Syariah Judical Department of Selangor. It’s the right time to establish relationship and social networking.

I learned how to prepare a Jointly Divorce Petition and Single Divorce Petition, analysis pleading for Fasakh and ‘Harta Sepencarian', and study closed files court litigations for mitigation in criminal sentence and divorce application in family division. Some of them came from my self-initiative, hungry for more skills and relevant input. Up till now I have enriched my legal vocab with terms like ‘Decree Nisi’, ‘Decree Absolute’, ‘Affidavit of Service’, etc.

I’m done already with my sort of like ‘story telling’ and ‘showoff’ on what was happened for the entire week, even there are some more things that I unable to recall right now. Yeah! There can be no longer ‘Before I can call it a week...’ anymore. Second week of my practical course has already passed!

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Justice will always comes to everyone of us (that is always the God’s promise) but will everyone may always comes to justice? Those who can afford the private lawyer’s fees may easily ‘pay the tickets’ to justice though justice may resist to permit the knocked door be opened. To those who were part of the opposite areas of the globe, they may have merit cases to stand before the court of law, yet lack of either power of persuasion or worst, knowledge on how to defend. The Legal Aid Bureau may always be the answer to any aggrieved party seeking for path of redress. However, the accessibility to justice through the institution’s roles may taint with improprieties when such opportunity being dominated by those who are not eligible and unfit for the mean test. The Bureau is always firm in its principles pursuant to the Legal Aid Act 1971 (Act 26) provisions since I personally believed that, Justice must not only be done, but must also seem to be done! (Enough for dreaming applicants who wear Pagoda shirt to cover golden singlet they wear inside.)

“If any person seeking or receiving legal aid or advice in furnishing any information in his application knowingly makes any false statement or false representation, he shall be liable on conviction to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both.”

Section 31, Legal Aid Act 1971 (Act 26)

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The first week of my practical course has already passed and the experience on ‘how tired and exhausted working as civil servant’ is another personal things that I have to face either as a reminder of my mother’s challenging working position or as another views of my future working prospect.

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To Enong, welcome to my blog (again!). Up till now, for trustee, feel free to review my post on fiduciary nature of trusteeship, power of advancement, power of maintenance, tracing at equity, appointment of trustee, choice of investment and standard of care. More to come; remuneration and other relevant cases on demand. J

Fiduciary nature of trusteeship

1. The nature of a trustee’s duty towards a beneficiary is fiduciary. Examples of other fiduciary relationships are those of agent and principal, company director and company, and partner and co-partner. Additionally, the duties owed by solicitors, accountants, guardians and receivers are sometimes regarded as fiduciary.

2. Where a fiduciary has a discretion, he must not have a personal interest in exercising the discretion in a particular way. A trustee must be motivated to benefit the trust, not to himself. That is not to say that fiduciaries are not entitled to receive any benefit for their services but the amount of their reward must not depend on the manner in which their discretion is exercised. Banks, accountants and solicitors are after all unaccustomed to work for nothing.

3. A trustee must not set himself up in competition with the trust.

Facts

In Industrial Development Consultant Ltd v Cooley [1972] 1 WLR 443, the defendant, managing director of the plaintiff company, had been negotiating on its behalf a contract with the Eastern Gas Board. The negotiations failed and it was clear that the Eastern Gas Board objected to the plaintiff company particularly. The Eastern Gas Board then began negotiations with the defendant personally and the end result was that he terminated his contract with the plaintiff company and contracted with the Eastern Gas Board himself on similar terms to those originally proposed on behalf of the plaintiff company.

Held

The defendant was constructive trustee for the company of the benefit of the contract.

4. Duty not to make secret profit. A trustee must not make any profit by virtue of his position.

a) Facts

In Keech v Sandford (1726) Sel Cas Ch 1, the trustee took over the benefit of a lease, which had been devised to the trust, when that lease expired. The trustee would not have been in a position to do so had he not been trustee. The lessor had refused to renew the lease for the trust on the ground that the beneficiary was an infant against whom it would be difficult to recover rent. The trustee thereupon took the lease for his personal benefit and profited from it.

Held

The trustee was the one person in the world who could not take the lease for his own benefit because by doing so h would be profiting from his position. He had to assign the benefit of the lease to the infant and account for the profit received.

b) Facts

In Re Macadam [1946] Ch 73, trustees who used their position to appoint themselves to directorships of a company were held liable to account to the trust for all the fees they received as directors. This type of situation can commonly arise in private company because eligibility for appointment to directorships can depend on the legal ownership of a minimum number of shares, and indeed trustees may be under a duty to procure their representation on the board if it is necessary in order to safeguard the value of the trust share.

The causal connection between position and profit must be established. It was not in Re Dover Coalfield Extension Ltd [1908] 1 Ch 65. A case similar to Re Macadam, but where a trustee had already become a director before becoming trustee.

5. Misuse of opportunities and information.

Facts

In Boardman v Phipps [1967] 2 AC 46. House of Lord, Boardman was solicitor to a trust, whose property included a large but not majority holding in a company, Lester & Harris Ltd. He became worried about the competence of the management of the company, tried to persuade the managing trustee of the trust to acquire a majority holding in the company. His attempts at persuasion were unsuccessful, so Boardman decided to make the acquisition himself. He did so and then, by selling off some of the assets of the newly acquired company, Boardman made a large profit for himself. Additionally, because the trust still had a large share in the same company, his activities resulted in a large profit for the trust as well. It appeared that in negotiating for the majority shareholding he had obtained information in his capacity as solicitor to the trust which he would not otherwise have obtained. Phipps, a beneficiary under the trust, sued for an account of profit.

Held

Boardman held the shares acquired as constructive trustee for the trust and he must account for any profits made.

However, he was entitled to remuneration on a quantum meruit basis as payment on a liberal scale in respect of the work and skill employed in obtaining the shares and the profits therefrom.

6. A trustee may not purchase trust property.

For Holder v Holder and Wright v Morgan, please refer to the other worksheet / post.

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Power of Maintenance v Power of Advancement

1. Maintenance only applies when the beneficiaries is a minor while an advancement can be made to a beneficiaries at whatever age.

2. Payments by way of maintenance are payments out of income to provide for routine necessities such as education, clothing, food and lodging. Payments by way of advancement are sums advanced from capital to cover major costs such as setting up the infant in his profession, buying a business, or a house for him on marriage

3. Both advancement and maintenance are powers given to a trustee and is not a duty of a trustee.

4. In a situation involving power of maintenance, a remainder of a trust is entitled to maintenance even where the first beneficiaries is not entitled for the income under such trust (who only entitled the capital of the trust).

In a situation involving power of advancement, a remainder is not entitled to advancement without written consent from a sui juris first beneficiary.

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Power of Maintenance

The trustees have a discretion as to whether to maintain the beneficiary.

Payments by way of maintenance are payments out of income to provide for routine necessities such as education, clothing, food and lodging. A power to maintain is not implied into the trust instrument. It must be expressly given or the trustee can rely on the provision in Section 36 of Trustee Act 1949. An infant can’t give a valid receipt for the income. A valid receipt may be given to the trustees by the parent of the infants. If the infant is married, he may give a valid receipt himself.

Section 36(2)

The income arising out of the trust fund should be accumulated and invested in authorised investment. Any surplus income after the making of payment is accumulated, the trustees may use these accumulations at any time during the infancy as if there were income arising in the current year, thereby making the income available for maintenance purposes.

Section 36(1)

Trustees have discretionary power to maintain an infant beneficiary out of his share of the income. It is applicable if there is any other fund applicable for the maintenance or if any person is bound by law for the maintenance or education.

This discretionary power must be exercised subject to the proviso under the same section that;

a) The beneficiaries must be an infant

b) The infant must have a beneficial interest.

c) The income arising out of the infants share is applicable to the maintenance, until the infant attains his interest under the trust, must be held for his benefit.

Trustees also must have regard to, while exercising their discretion, the following matters set out in the proviso under the same section;

a) The age of the infant

b) His requirements

c) The general circumstances of the case

d) Other income available for maintenance.

Trustees should not normally give the infant money in excess of his needs if he has other financial resources.

The power to maintain can only arise where the beneficiary is entitled to receive intermediate income under the trust. This will be the case either where his interest is vested or where it is a contingent interest which carries the intermediate income. For example:

If the infant’s share does not carry income, then there can be no maintenance. This involves a situation where a trust instrument states RM10,000 to A when he attains 23 years old, the income to B until then. This gift does not carry interest income to A, therefore no maintenance can be given to A.

Under Section 36(1) the money may be paid to the parent or guardian of the infant or directly for his benefit. If the infant is married, they may pay it directly to him.

The power to maintain ceases when the beneficiary reaches the age of majority. Even if his interest is still contingent, the trustees must pay the whole of the income to him until he obtains a vested interest or dies.

Section 57

The court has inherent jurisdiction to approve the use of income or even capital for the maintenance of infant beneficiaries.

Cases

1. Wilson v Turner

[Refer case worksheet]

2. Bryant v Hickely

If the discretion is exercised in good faith the court will not interfere.

3. Re Greenwood

Although Section 19 protects trustees if they acted in good faith, it was held that this protection is only given if the trustees had actively exercised their discretion.

4. Bryant v Hickley

[Refer case worksheet]