Journal of Malaysian and Comparative Law

Editorial Note

Su Wai Mon — 2025-05-28

SPECIAL FINANCIAL PROVISIONS FOR SABAH UNDER THE FEDERAL CONSTITUTION: THE ISSUE OF THE 40% SPECIAL GRANT

Mazlianie Mohd Lan — 2025-05-28

In the asymmetrical and consociational federal system of Malaysia, the special position of the Borneo States is prescribed in the Malaysian Federal Constitution. The financial provisions in the Federal Constitution, include exclusive assignment of special revenues and resources to the Borneo States. Specifically, the two-fifths or 40% Special Grant to Sabah under Article 112C and part IV of the Tenth Schedule of the Federal Constitution is popularly highlighted in recent times. This provision originates from the Malaysia Agreement 1963 and the Malaysia Act 1963. The implementation of the 40% Special Grant appears as a conundrum and will be
deliberated on an analytical basis in this article. Before embarking on the discourse of the provisions of allocation of grants, revenue and the issue of the 40% Special Grant to Sabah, this article shall first discuss the special position of the Borneo States in the Federal Constitution. An analysis on the 40% Special Grant shall then be made. This article will address the relevant provisions on the 40% Special Grant including its review, the constitutional issues and the implementation of the 40% Special Grant through voyage of time, as well as an analysis of the Federal Estimates of Revenue and Expenditure from 1964 onwards. To address issues pertaining to the 40% Special Grant, several actions are recommended. Any dissensions pertaining to the issues of review of the 40% Special Grant or determination of revenue for purposes of calculation of the 40% Special Grant must be conciliated in strict compliance with the provisions of the Federal Constitution. Redress may be sought from different avenues such as appointment of an independent assessor, public litigation in the courts of law or political negotiations on mutual consensus.

ABOLITION OF NATURAL LIFE SENTENCE IN MALAYSIA: A CRITICAL ANALYSIS

Moin Uddin — 2025-05-28

A natural life sentence is a severe punishment in which prisoners remain in prison until death. This sentence is used as an alternative to the death penalty in exceptional situations which do not mandate the punishment of death. In Malaysia, the Court was empowered by the law till 3rd April 2023 to impose a natural life sentence in the criminal justice system based on Section 130A(f) of the Penal Code. This law aroused the vexed issue that a natural life sentence does not achieve the purposes of sentencing in the criminal justice system. In addition, a natural life sentence violates human rights laws as it is inhumane or degrading to the accused. This paper
aims to critically analyse and examine the rationales and consequences of imposing a natural life imprisonment. The qualitative research method has been used in gathering and analysing data. This study concludes that a natural life sentence contradicts human rights, fails to achieve public interest, violates the freedom and dignity of the prisoners, and also fails to attain penological goals. This research suggests that the natural life sentence should be abolished around the world with an option of parole to establish human pride and dignity and protect the social and human rights of the prisoners.

GOOD FAITH IN CONTRACT LAW: THE MALAYSIAN PERSPECTIVE

NG SENG YI — 2025-05-28

The recognition of a general duty of good faith in contracts varies by country. In Malaysia, it has become the subject matter of recent cases but without much academic writing. This article seeks to complement the existing legal literature and to generate discussion on this area of law. This article uses a doctrinal approach with comparative law analysis to examine the duty of good faith in contract law. Like England and Singapore, Malaysia does not recognise a general duty of good faith in contracts. However, it has developed the law on a piecemeal basis through contractual implied terms. This approach is pragmatic for two reasons: first, it acknowledges that good faith is already inherent in Malaysian contract law; second, context is crucial- a duty of good faith will only be implied by law and/or in fact into contracts when the tests of implied terms are satisfied. This approach is more likely to respect the intention of the parties than having a general overriding duty of good faith since it affirms the freedom of contract. This article further highlights the potential challenges arising from the introduction of ‘relational’ contracts as to whether a general duty of good faith can be implied in such contracts. It is argued that if the parties intend to impose a duty of good faith, they should expressly stipulate it in the contract for the avoidance of doubt.