THE PERPLEXING EMBARGO ON LADIES AT SABARIMALA - A dissection of the possible and plausible reasons -A View Point

(can also be assessed at the Akhila Bharata Ayappan Seva Sangham,Kerala -http://www.saranamayyappa.com/ .This article is published therein)
By
Madawan A Nair
BEcons(Hons)Mal,LLB(Hons)Lond,LLM(UKM),CLP
Advocate & Solicitor
HIGH COURT OF MALAYA

"Only girls below the age of 10 and ladies above the age of 50 are permitted to climb up the hills to Sabarimala" is the practice that has been followed, in respect of Sabarimala pilgrimage, since time immemorial. But this embargo has given rise to many questions. The answers given so far have not satisfied those who have raised these queries. Otherwise why must the question be raised over and over again? The main reason for this seems to be that the answers provided in response to this query, are unreasoned and abrupt. Most of these answers have been provided by individuals who have not had sufficient curiosity to explore the relevant aspects deeper. Seek, understand and explain the little that you know for the benefit of others - that sounds spiritual enough doesn't it? The explanations or the rationale I am trying to provide are based on deep introspection, wide reading and research which I had embarked upon. The answer (or answers) to this question harps on a mix of cultural, historical, biological and spiritual reasonings.

Unlike the modern liberated women, the Indian women of the past have accepted such embargoes without many questions or indignation It was because they lived in a cultural set-up which straightaway ostracized and reprimanded any female who raised such questions. In fact, they risked being labeled as foolish and their families frowned upon for bringing up the females in an improper manner. This being the case, they remained comfortable with that mindset and contented with whatever the men folk decreed or ordained. Poor women, but great mothers without whom we wouldn't be here. Ammei Devi Namosthuthe! Without the existence of the female species who would have propagated the human race?

Satyavati, . who was a fisherwoman from a low caste,had a brief encounter with Parasara (the grandson of Brahmarishi Vasista ) and produced the great sage Veda Vyasa (or Krishna Dvaipayana as he was also known) without whom the Vedas would not have been in our midst! ........ Sages and Saints of India, Dr Manu Bhagat, pp 26

Anyway let us ponder upon the cultural base upon which this embargo is based in Kerala, where Sabarimala Sannidhanam is located, as well as elsewhere. In most of these places it had been an age old custom and practice that only men are permitted to conduct pooja and other rituals in temples. This accounts for the reason why we see only tantris and nambudiris conducting poojas in temples! The ladies especially the ones having attained puberty, are prohibited from conducting the pooja rituals for a number of reasons. This fact is ingrained in them from their childhood by the family elders. Based purely on reflection and intellectual ponderings. the foremost plausible reason, is the likelihood of the female suddenly becoming `unclean' during the course of the prayers and ceremonies by the onset of menstruation. The regular menstrual cycle in most healthy women is once every 28 days or so. It is common clinical knowledge that menstrual cycle of women can deviate from its usual 28 day periodicity. It may begin earlier or later due to various factors like poor health, hormonal imbalance, anxiety, over exercise, emotional state etc. This means that there are chances of menstruation occurring during pooja rituals. This is especially so during the mandala vrutham which extends to a duration longer than 28 days. Hence, it is not possible for women to remain `clean' during the whole period of fast, prayers or ceremonies.

The Hebrew language has a word niddah for menstruating woman, and because the ancient rabbis thought her unclean, her activities were strictly regulated by Jewish law. When her period was over, she had to wait seven days and then clean herself in a mikvah, or ritual bath. Some orthodox Jewish women still observe this rule. ...The ABCs of Human Body, pp 275
One must also keep in mind that the holy atmosphere prevailing at Sannidhanam gives rise to suddenly fluctuating emotional levels of ecstasy induced by intense devotion to and the proximity of Lord Ayyappa. The floodgates of emotions are sprung open in HIS vicinity. If this is so with most men, even those of more stoic and hardy nature, imagine the state of a lady in the threshold of getting her periods (or who has artificially prolonged the onset of the menstruation cycle through medication). Another factor is the trek up the hill to Sannidhanam. The present trekking path to Sannidhanam is relatively more comfortable than the one that existed in the days gone by. Nevertheless the climb up the hill is demanding. Thus the rapidly waxing and vaning emotional and physical syndromes could trigger the onset of an untimely menstruation. Applying these reasons, it is biologically difficult for ladies to remain 'clean' through the long period of vrutham (austerities) required before undertaking Sabarimala pilgrimage.

What is so `unclean' about menstruation? After all isn't it a biological process decreed by God himself, one may ask? The presence of blood in any prayer ritual is a definite `No'. Animal worship and blood sacrifices as seen in some temples are certainly against established norms of worship. The mere presence of blood desecrates the place of worship and invites the evil force, hovering in nether worlds beyond our perception and senses. The menstrual blood is not just blood itself but blood combined with a dead egg. This egg, in it's fertile state had contained intrinsic life-force or sakthi of being able to create another `being' under opportune conditions? Unfertilised and ejected during the menstruation process, the egg is dead. Devoid of its potency, it becomes another dead being or Pretham. It is thus, tantamount , at least figuratively speaking, to bringing a miniaturised graveyard to the venue of the ceremony. That is why young ladies are forbidden from visiting temples during such periods. Besides, in many communities, during their `unclean' times they are also forbidden from venturing out at odd hours like at noon and dusk, and to places like the graveyard.

Bearing in mind the philosophy of the 18 steps, emotional states like Kama, Krodha, Lobha, Moha, Madha, Maltsarya, Asooya and Dhumb should be restrained or totally shed. For some ladies, the pre and post menstrual syndromes (PMS) and the accompanying pain that they undergo during such times, throw them off balance both emotionally and physically. The agony is such that they have to often take recourse to medical treatment to alleviate the pain. Such being the case, can they properly follow the rituals prescribed during the period of vrutham ? Not only that, during such turbulent period of agony, they are caught in a disturbed state of mind like anger and pain which could divert their attention from the sole aim of devotion to God.
In this so called PMS there may be inexplicable and uncontrolled bouts of anger and crying due to the chemical changes in womens' bodies. ...The ABC's of the Human Body, pp 275

Frankly, can a lady helplessly struggling with her hot flushes and abdominal pains effectively put her mind to prayers? Can she cope up with the crowds at Sannidhanam who are constantly jostling, shoving, pushing and pulling while waiting in queue for a darshan or while ascending the holy 18 Steps? These are practical aspects worth considering and reflecting upon. Don't just point your fingers at the `Embargo' and smile sheepishly.

Being steadfast in brahmacharyam and `fasting', the eventual period of getting darshan is a poignant point to remember. The mind has to be devoid of any form of worry, attachment or mental unease. It has to be wide open to realise the oneness of the personal and impersonal Brahmans. The male devotees ascending the hills, at least most of them, do so after observed a lengthy period of fasting - including celibacy. Observing celibacy during the fasting period is not as easy an effort as one might think. The minds of married men, attuned to conjugal affairs, have to be restrained. Even the occasional mental flights of fantasy have to be nipped in the bud. In short, controlling the basal instincts of procreation is paramount though extremely difficult. It is a practice one has to adhere to. This self denial is a prime requisite to get anywhere near to the shadow of the Paramatma Himself. Great sages like Viswamitra and Ravana have fallen to this overpowering allurement of sexual attraction. What of mere mortals like us? Even Brahma, it is said, nearly faltered.

On creating Vani, he (Brahma) was himself overcome by a lustful sentiment towards her, whereupon he was rescued from this dark passion by his own offspring like Sanaka, Daksha and others. .... Narayaneeyam: Canto 10 V.8

Instances of temptation can occur on many occasions. Most of the devotees have a bath in Pampa. On the banks of Pampa, no covered facilities exist to even change clothes and the pilgrims are forced to change clothes in the open. Similarly, the trek during pilgrimage is strenuous and sweaty. Garments that one wears gets soaked in sweat and tend to vividly cling to the body in often sexually provocative and embarrassing fashion. Therefore, despite whatever one may vehemently say, the possibility of the male devotees falling prey to this emotional lure is there, should young ladies in their prime and desirable ages, go up the hills alongside them. One may say that this should not be case and that one should have self-control even when confronted by temptations. If that self control is there, why are there growing reports of sexual crimes splattered all over the newspapers? "The mind is the source of both bondage and liberation" said the great Mahatma. Each yatra is a practice to control that mind and attain liberation. It takes several yatras, several doses of enlightenment and absolute surrender to attain that level of self restraint. With all this in view , it may even be worthwhile pondering over the `below the age of 10' clause, because empirically we notice young girls below ten attaining puberty these days.

Sabarimala yatra is unique from a mere visit to a temple in the neighbourhood. A visit to the neighbouring temple is to focus on the presiding deity installed there and contemplate on the deity's presence everywhere and in everything - at least that is what we ought to do. But with the din and calamity in the temple ground, the possibility of our bumping into our close friends, the glittering gold bracelets, elaborately dressed women exuding heady perfumes often tend to divert our attention from our primary aim of worship. Our minds during such brief visits are often not focused enough towards contemplation, introspection and prayer.

To meet the King you ought to be decenty attired, for a wedding reception you adorn the requisite clothes and to visit the temple you ought to be appropriately dressed both literally and figuratively. To see Swamy Ayyappa, sitting atop Sabarimala in the yogic state, bathing in the Satvic ocean and exuding such aura, with His eyes closed in ` tapas' and absolutely detached from everything , it is necessary for his devotees to be in consonance i.e remain detached - physically and mentally from the earthly world with its attendant temptations. Sabrimala Sri Ayyappa is the Kali-yuga varadan (saviour) and the only way to realise Him is through absolute detachment from earthly distractions. All the Hindu scriptures talk of the necessity for this sort of detachment. From his birth man labours make under the `eight bondages' of hatred, fear, shame, aversion, egoism, vanity, pride of noble birth and obsession with the formalities of good conduct. When one calls on the Mother, one should discard these `bondages' and call on Her with a concentrated mind......The Great Sage of Hinduism - Sri Ramakrishna

To really attain detachment and allow the satvic qualities to rise to the surface needs a lot of determination and dedication. The fast, celibacy, the bhajans, the satsangs, the mala with the mudra, the irumudi coconut, the black/blue attire, the rough path, the towering hills, the mantras are all aimed at arousing the Satvic qualities in us by killing the yearnings of the mind that has been so habituated from birth by the social environment of the day. The key word here is the `mind'. That is the single most entity to be harnessed. Should ladies in the embargoed group be present there, is it not bound to become a source of distraction?

You see, it is the nature of the water to flow downwards, but the sun's rays lift it up towards the sky; likewise it is the very nature of the mind to go to lower things, to objects of enjoyment, but the grace of God can make the mind go towards higher objects. ......Mother Sarada Devi - The Gospel of the Holy Mother, pp175

On the part of the men, It is the lack of commitment and unrestrained surrender to the dictates of the mind that have brought an array of social evils like wife beating, divorces, adultery, drunken husbands, sexual delinquency etc. The very man, for whom a lady yearns and pines for before marriage becomes awry and distasteful after matrimony in spite of her utter devotion to him. While women look for romanticism, motherhood and security in marriage, men look at women as objects through whom they can fulfill their baser instincts. In contemporary times physical, mental and sexual aberrations are openly portrayed through print and visual media. Often this portrayal falsely denotes these perversions as signs of success in life and a trademark of the `In' crowd. If you are not `In' then you are the left `Out' as the less successful of society. Men must become more balanced, equipoised, committed to their lives and to those around them. Sabarimala `vrutham' is one such attempt by men to attain essential moral qualities towards better conduct. Therefore, will it not be unfair for the ladies to disturb the noble path the men folk are taking to cleanse their minds .

It is the ultimate aim of any religious occasion or religious teacher to endeavour to teach that the identification of the self with the body must go.
The body is nothing but three pounds of ashes when it is cremated.....Mother Sarada Devi - Gospel of the Holy Mother pp 49

Mother Sarada Devi said that tThis take time , effort, sacrifices, a conducive environment and the co-operation of the female of the species! Even then it is difficult to fully realise this truth. According to my guru Swamiji Krishnan Sreedharan, it takes a lot of vairagya (commitment) . But isn't an iota of realisation better than none at all? He adds that everything needs a beginning, no matter what falterings, fits and starts there are.

Thus, the Sabarimala yatra and the antecedent fasting regime provide just that (the beginning) - not the golf courses or holiday resorts for there too you shall only find factors awaiting to aggravate what you wish to free yourselves from - the sense-objects and their enjoyments.

When the mind becomes Nirvishaya - free from thinking of sense-objects and their enjoyments , it is meditation, God has hidden Himself in this world and is seated in the cavity of the lotus near your heart. He is the absentee landlord......Swami Sivananda - Concentration and Meditation, pp118

Another reason for the embargo is that it often told that Swami Ayyappan Himself requested this of his earthly guardian, the King of Pandalam. We cannot easily dismiss this as a figment of imagination. As per my learned GuruSwamiji Krishnan Sreedharan, Lord Ayyappan or Manikantan's (as he is called ) existence can be traced to about 700 to 800 years back. In fact the Pandalam castle is still in existence in a dilapidated state and the decendents of the Pandalam lineage are still living. They are honoured by Ayyappa devotess and still hold a wand of influence over the runnning of the Sabarimala Sannidhanam. Currently there is a tussle over who should have wider span of power, the Pandalam family or the Travancore Devasom Board? That the thiruvabharanam, made by the erstwhile Pandalam maharajah, is adorned on the deity on Makaravilakku day is another proof of the bond between Lord Ayyappa and the Pandalam family. In Puthenveedu , Manikantan's sword and several belongings are still preserved and worshipped. Hence, it is highly possible that the request would have been made by Him. As to why, that is left to speculation and logical deduction, but looking at the yogic posture of His vigraham (idol) it is evident that the deity is in a special posture of tapas and meditation. Here, in Sabrimala one of HIS silent messages is to be free from the grips of Moha and it could have been His intention that He himself does not become a perpetrator of the same - hence the embargo. He wanted to be undisturbed in His yogic bhava or mood. According to the legends He turned down the proposal of marriage from Malikapuram herself. Like any other sage in a similar endeavour, he may not have wanted the presence of young ladies there. Not that he will succumb to their charms but the other way around i.e so that the young ladies do not get attached to Him emotionally (just like the Gopis of Vrindavan to Krishna) and thus forget their earthly obligations and duties to their own families. Remember how the gopis, with the least thought of their own husbands and children, were enraptured end trapped in the beauty of the young Krishna!

Thus, HIS request has to be rightly honoured by young ladies. Not with any defiance or recalcitrance but with their ever-present gift of love and understanding. Our present day minds are too sullied by the hustle and bustle of contemporary material world that we refuse to ponder deeply on various age old practices but summarily rush to our own ill founded conclusions. We must learn to respect age old traditions and embargoes of the past. They are there for the reasons usually untold , but certainly based on sound reasoning.

Researched and written by Madawan, Ananthi and Ashwini.
Comments are welcome Disclaimer::- The views expressed in this article are the view points of the author and his fellow researchers. It does not purport to represent the view point of ABASS or the web editor. No part of the article is intended to be disparaging to either of the sexes, persons, faiths or cults.

Copyright © 1999 Akhila Bharatha Ayyappa Seva Sangham (ABASS). All rights reservedCreated and Hosted by NetVigilante

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FAKULTI UNDANG-UNDANG
UNIVERSITI KEBANGSAAN MALAYSIA


TOPIC:
To what extent do the domestic laws of Malaysia tackle the problems of :
a. oil spills
b. hazardous and noxious substances in the Straits of Malacca.



Prepared By :
MADAWAN A.NAIR
BEcons(Hons),LLB(Hons)Lond,LLM(UKM),CLP
Advocate & Solicitor
HIGH COURT OF MALAYA.



1. INTRODUCTION
1.1.General - The changing perspective of the sea
The advent of the 21st century has brought about a total shift in our understanding of the vast expanse of water covering the earth – namely the sea. After the second world war , decolonization and nation- building became the central theme of most states in the world. At about the same time, coastal states sought sovereignty and territoriality of the sea.

The UNCLOS convened at Jamaica (on 10.12.82) changed the way spaces in the sea is to be construed. Indonesia and Philippines have changed their identities as nation–states to become archipelagic states. The UNCLOS’s demarcation of contiguous and EEZ zones for coastal sea has also changed the way we think of the sea – it is now a resource to be jealously secured, guarded and managed. It is now a resource with infinite riches for economic growth and sustenance. Complacency and inaction by any coastal state would not only deprive it of enjoying this wealth but could also be disastrous to its economic growth !

1.2. An overview of the Straits of Malacca.
The Straits of Malacca is the narrow body of water flanked by the west coast of Thailand, the north-east coast of Malaysia and the south-west of Sumatra island. It is 520 miles in length and varies in width from 200 miles in the north to 11 miles at the south. Its depth varies from 73 metres to less than 25 metres. Types of vessels that transit the Straits of Malacca are namely oil tanks, container vessels, cargo vessels and other passenger ships. More than 90% of the vessels are destined for Japan, Taiwan, South Korea and Hong Kong.

Furthermore, Malaysia is dependant upon the Straits of Malacca for resources, defence, shipping services, ports, tourism and facilitating external trade. About 139 fishing villages are located here and are dependant upon the fishing industry for its livelihood. Additionally major tourist centres are located along the straits such as Langkawi, Penang, Pangkor, Port Dickson and Malacca.[1]

Despite the presence of the Sunda straits and the Lombok Straits, the vessels still prefer the Straits of Malacca.

1.3.The waters of Straits of Malacca is fast becoming the dump-yard of oil spills, harzardous and noxious substances.
Generally, shipping, dumping, sea-bed activities and land-activities [2] have been identified as the four main sources of marine pollution.

For example ships driven by diesel-engines may discharge some oil with their bilge water and fumes discharged through their funnels into the atmosphere will eventually return to the sea. Similarly, ships using their fuel tanks for ballast water may discharge this oily ballast water into the sea. Furthermore, throwing of garbage overboard or discharging of waste directly in to the sea will also contribute to pollution. This is not an uncommon phenomenon at the Straits of Malacca considering the heavy volume of traffic using it.

Some oil, as well as other noxious cargoes like chemicals, liquid gases and radioactive matter, enter the sea as a result of accidents such as collisions, strandings and explosions. The higher the volume of ships traveling across the Straits of Malacca the greater the risk of such noxious substances entering the sea.

Dumping of waste from land-based activities such as radioactive matter, military materials (obsolete weapons and explosives), dredged materials is another undeniable source of pollution.

Industrial waste, debris and relatively small amount of oily and chemical waste from drilling on the sea-bed for oil and gas are also contributive factors.

Sewage and industrial wastes discharged into the rivers directly enter the sea from the land where they originate. Chemicals such as fertilizers, pesticides and so on aggravate the deplorable state of the Straits of Malacca.

1.4 The costs to Malaysia[3]
An exorbitant bill of costs confronts Malaysia as far as maintenance of pollution is concerned.
The Malaysian government has spent RM34 million to stockpile equipment to combat oil pollution in the Straits of Malacca. The private sector has spent another RM30 million under the auspices of the Petroleum Industry of Malaysia Mutual Aid Group (PIMMAG) and this does not include the cost of training, equipment replacement and manpower development.

Added to this, and unable to quantify, is the opportunity costs to Malaysia resulting from the impact of externalities created by foreign activities in the straits. This includes the destruction to ecosystem, destruction of livelihood of fishermen and the cost of maintaining the marine environment.

The overall costs to the Royal Malaysian Navy to provide hydrographic-related services in the Straits is estimated to have mounted to RM70 million between 1984 and 1993. The irony of the situation is that the hydrographic surveys are integral in navigation of foreign vessels and we bear the cost and suffer in silence !

It is surmised that with this mounting costs for maintenance of the Straits one day it is going to cause a big allocation of the national budget and economic deprivations and funding in other sectors of development shall be forestalled. Therefore the problem is crucial and must be addressed immediately.


1.5 . The international sea laws and the Straits of Malacca.
The UNITED NATIONS CONVENTION OF THE SEA III is the most authoritative and widely ratified international treaty. The Malaysian government has also ratified it.
Article 17 of UNCLOS 111 reads as follows :
“ Subject to this Convention, ships of all States, whether coastal or land-locked enjoy the right of innocent passage through the territorial sea. “
and innocent passage has been defined in Article 19 (1) of UNCLOS 111 as :
“ Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. Such passage take place in conformity with this Convention and with other rules of international law. “
In the light of the topic of discussion, it is only glaringly obvious that as far as the Straits of Malacca is concerned we are helpless in curtailing innocent passage despite the fact that the waters is our territorial waters ! Our hands are tied due to the supremacy tenor of the UNCLOS by its perpetrators despite knowing very well it is the foreign vessels that contribute to the marine pollution such as oil spills, hazardous and noxious substances in the Straits.

This high-handedness and aristocratic aloofness is reinforced everywhere. For example, the coastal states cannot even suspend temporarily (if important for the protection of its security ) the right of innocent passage through the straits since it is used for international navigation. And the absurdity is that such rules have been given cognizance and blessed by the International Court of Justice and in Article 16(4) TSC.

On one hand, pollution is despised internationally and yet on the other hand vide conventions and treaties the very pollution is given energy and impetus to grow. This is certainly the irony as far as the international laws governing the Straits of Malacca are concerned. They are the very root and obstacle in preventing pollution by oil spills, hazardous and noxious substances.

2. THE INTERNATIONAL CONVENTIONS AND DOMESTIC LAWS PERTAINING TO POLLUTION BY OIL SPILLS, HAZARDOUS AND NOXIOUS SUBSTANCES.

2.1. OIL SPILLS

Oil spillage is an absolutely pertinent and persisitent problem worth solving. For example, in the accidents involving the Showa Maru (1975), Diego Silang (1976), Maersk Navigator (1993) and Nagasaki Spirit (1992) a lot of oil was spilled. In the first three accidents an estimated 30000 tonnes of oil was spilled into the Straits of Malacca. In the case of Nagasaki Spirit it was 13000 tonnes of oil spillage. Compared with land-based sources, vessel-sourced pollution is one of the more and better internationally regulated areas of marine pollution.[4]

“ Oil ” is defined to mean any persistent oil such as crude oil, fuel oil, heavy diesel oil, lubricating oil and whale oil whether carried on board a ship as cargo or in bunkers of such a ship.[5]
Oil-spillage incurs cleanup cost and is a serious matter. The table below shall highlight the colossal amount of oil spillage and clean-up costs that have been incurred :
Cleanup cost of Major Oil Spills[6]
Showa Maru /Japan/1975
17700 metric tons
RM1250000
Diego Silang/Phillipines/ 1976
5500 metric tons
RM2661732
Nagasaki/Panama/ 1993
13000 metric tons
RM3690093
Others (minor)
13800 metric tons
RM113436

The domestic laws pertaining to oil spills are more often than not are the incorporation of international conventions into national laws, policies and programmes. Some of these are as expounded below to ascertain their effect on the domestic laws.

2.1(a).The empowering conventions, treaties, policies and programmes.

i). MARPOL 73/78

Significant among the conventions attempting to control marine oil pollution have been the International Convention for the prevention of oil Pollution 1954 (OILPOL), International Convention for the Prevention of Pollution from ships 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78). The increasing incidents of sea pollution caused by spillage and discharge of oil and oily mixture from ships are the reason for the MARPOL 73/78 Convention. The incident of Torrey Canyon in 1967 convinced all states to take precautionary steps tp prevent these damages and disasters from happening. Malaysia became party to Annexure I (oil) and II (Noxious Liquid Substances in Bulk) and the optional Annexure V garbage on 31 January 1997.[7] Three months later on 1 May 1997 it came into force.[8]

MARPOL 73/78 covers accidental and operational oil pollution as well as pollution by chemicals, goods in packaged forms, sewage, garbage and air pollution. The Convention does not apply to any warship and state ship being used for non-commercial services but applies to all ships entitled to fly the flag of the parties to the convention but which operate under their authority convention. It also does not cover dumping. Enforcement of the convention will be through laws enacted by the states which have sufficient force of sanction. Violations can:

a). invite the state taking action as per its jurisdictional rules or alternatively
b). the states shall release all information and evidences to the flag ship and on that basis the flag state shall take action. In the latter case, the flag ship will inform the referring state about the actions it has taken.
Other essential features of this convention are:

i). all ships shall hold a certificate of compliance with the convention standards.
ii). In the event of a substantial non-compliance, if evidenced, the port authority of the state party carrying out the inspection must take such steps as necessary to ensure that the ship shall not sail until it can proceed to sea without preventing an unreasonable threat of harm to the marine environment.
iii). Article 6 of the convention requires that all parties shall cooperate in the detection of violations and enforcement of the provisions. The flag state has also been required to initiate legal proceedings as soon as possible for violations of the convention on the basis of sufficient evidence.

Detailed pollution standards were set out in the annexures as indicated below:
1. Annexure 1 (with oil).
2. Annexure 2 (with noxious substances in bulk).
3. Annexure 3 (with harmful substances carried by sea in packaged forms).
4. Annexure 4 (with sewage)
5. Annexure 5 (with garbage) and
6. Annexure 6 (with air pollution).

MARPOL 73/78 has come into force and Malaysia has not ratified it fully . It has for example adopted only Annexures I, II and V. Singapore has already ratified MARPOL 73/78. It is opined that with this ratification, closer cooperation could be exploited among both countries for preventing marine pollution, particularly as regards oil spills, specifically in the Straits of Malacca . Nevertheless, while the MARPOL 73/78 did not directly necessitate the formulation of any domestic laws immediately, its influence have had far -reaching effects and this is undeniable. Upon Malaysia’s ascension to MARPOL 73/78, it immediately mandatory for all local ships to have the Malaysian Oil Pollution Prevention Certificate (M.O.P.P) and the International Oil Pollution Prevention Certificate (I.O.P.P) for International ships.[9]

ii). The International Convention for Civil Liability for Oil Pollution Damage 1969 (CLC Convention) and the 1971 International Convention on the establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention) .
The CLC Convention covers damage from oil escaped or discharged from the sea - going vessels or any seaborne craft. The exceptions are general cargo carriers and bulk carriers other than oil-carriers and tankers on ballast voyage. It fixes liability for damage caused by the oil pollution unless it is caused by the :
a. act of God
b. war
c. civil war hostilities and insurrection.

The amount of damage is limited to 133 SDR (Special Drawing Rights) ( 1 SDR is roughly equal to 13 US dollar) per ton with the maximum of 14,000,000 SDR. The CLC can be enforced by the member countries suffering from oil pollution. The member states are authorized to enforce the treaty law through an appropriate legislation.[10]

To cover the liability beyond the CLC, the Fund Convention was entered into and to make realistic a Protocol was also added to it in 1976. The Fund Convention provided remedy in the cases which are exceptions to the CLC. The fund is generated through statutory contributions from oil companies on imports greater than 150000 tonnes per year on a pro-rata basis. The maximum limit of payment through this fund is up to US $ 45000000 and is subject to constant reviews.

iii). The United Nations Convention on the Law of the Sea
Malaysia ratified the United Nations Convention on the Law of the Sea (UNCLOS) on 14 November 1996. Prior to the submission of the instrument of ratification however, Malaysia has already been implementing the various provisions of UNCLOS through two national laws namely the Exclusive Economic Zone Act 1984 and the Fisheries Act 1985. The EEZ Act is a mirror of Part V of UNCLOS III which governs State jurisdiction in the Exclusive Economic Zone over matters such as marine pollution prevention, management of fisheries resources and the conduct of marine scientific research.

Several avenues as regards marine pollution and matters attendant to it were widened by UNCLOS 111 namely:
· Article 192 LOSC proscribed that it was the general duty to protect & preserve the marine environment from pollution from all sources.
· Article 207 to 234 and 236 LOSC defined the jurisdictional rights and obligations (legislative & enforcement) of flag, coastal and port states.
· Other related art in Part XII (Protection and Preservation of the Marine Environment) deal with principles (art 192-6), global & regional cooperation (art 197-201), technical assistance(art 202-3),
· Articles 204-6 deal with the monitoring and environmental aspects while Article 235 deals with responsibility and liabilities thereof.

Coastal states however have argued for more responsibility to be borne by users of sea areas in the spirit of Article 43 (navigational and safety aids and other improvements and the prevention, reduction and control of pollution) of UNCLOS and the “polluter-pays- principle” [11].

2.1(b). The Domestic Laws pertaining to oil spills

i). The Merchant Shipping (Oil Pollution) Act 1994 (Act 55)
Malaysia is now party to both the International Convention for Civil Liability for Oil Pollution Damage 1969 (CLC Convention) and the 1971 International Convention on the establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention) .

The Act provides the procedure for identifying, investigating and ascertaining any claim. According to section 23 of the Act, the High Court shall have jurisdiction over cases under this Act. It is the Director of Marine (DOM) who is responsible for carrying out all or any of the powers and duties under the Act. The DOM or any authorized officer may arrest any responsible person and detain any ship. The ship may be released only on furnishing the required security.

It is to be noted here that the Merchant Shipping (Oil Pollution) Act 1994 fixes liability for pollution damage caused by a discharge or escape of oil in “any area of Malaysia”. Hence the pertinent itch remains – does this include only the territorial waters or also the exclusive economic zone ? Since the CLC Convention’s scope is not defined it is submitted that the exclusive economic zone is inclusive. However, since the Straits of Malacca only has territorial waters to be concerned with this remains a mere academic opinion irrelevant in the present context though useful elsewhere.

Section 3 of Part II of the Act on Civil Liability for Oil Pollution generally exhorts as thus :
(1).Where as a result of an incident taking place, any oil is discharged or escapes from a ship, the owner of the ship shall except as otherwise provided by this Act be liable for any pollution damage caused by such discharge or escape in any area of Malaysia.
(2). Further, the owner of the ship shall be liable for any pollution damage caused to any area of any other Liability Convention country as a result of any incident specified in subsection (1).
(3). Where oil has been discharged or has escaped from two or more ships, and pollution damage results therefrom, the owners of all the ships, unless exonerated under section 4 shall be jointly and severally liable for all such pollution damage which is not reasonably separable.
(This section is subject to exceptions as provided in section 4).

Section 491C of the Act, inter alia, stipulates the powers of the Director of Marine as thus :
a). to stop and board any ship in the Malaysian waters
b). inspect any permit, license, record, certificate or any other
document, detain such ship including cargo equipments etc
and
c). arrest any person whom he has reason to believe has
committed an offence under this Act. Anyone obstructing him
shall be liable for a fine not exceeding fifty thousand ringgit.

ii). The Exclusive Economic Zone Act 1984 (Act 311)
The Part IV of the Act deals with protection and prevention of the marine environment in the exclusive economic zone and the continental shelf and makes oil pollution, with certain exceptions, an offence liable to a fine not exceeding one million ringgit.

Cases against any offence can be instituted by any “authorized officer” which includes any Fishery Officers, any Port Officer, any Police Officer not below the rank of Sergeant, any Custom Officer, any Officer of the armed forces, any public officer or any other person appointed to be an authorized officer.

The Act provides for the arrest of the responsible persons and also provides for detention of the vessel which can only be released on appropriate security being provided.

Under this Act a prosecution case can be instituted under the Criminal Procedure Code in a Sessions or First Class Magistrate’s court. Also where a damage has been caused to any person or property or to any segment or element of the environment of the exclusive economic zone or continental shelf, compensation can be claimed, and for that, depending on valuations of claims, a case in the appropriate High Court, Sessions Court or Court of a Magistrate of the First Class can be filed.

The Act is certainly a precursor of Part V of the UNCLOS III.


iii). Fisheries Act 1985 (Act 317)
Fishing boats and vessels are powered by diesel-engines and thus pollution of oil into the sea is inevitable. It remains undeniable that most fishing vessels are diesel powered. Hence while they encroach into the Straits for fishing , the diesel-engines may discharge some oil with their bilge water and fumes discharged through their funnels into the atmosphere will eventually return to the waters in the straits. In this context, the Fisheries Act 1985 (Act 317 ) is obliquely relevant.

The Preamble of the Act circumscribes the Act to mean thus:
“ An Act relating to fisheries, including the conservation, management and development of maritime and estuarine fishing and fisheries, in Malaysian waters, to turtles and riverine fishing in Malaysia and to matters connected therewith or incidental thereto.”
In Part I, Preliminary section of the Act the word “pollutant” has been defined to mean:
“…any substance which, if introduced into the maritime or any riverine waters, is liable to create hazards to human heath or to harm aquatic living resources, or to damage amenities or interfere with other legitimate use of the maritime or riverine waters…”
It is humbly submitted here that oil spills are also embraced by the afore definition.

Section 25 is the general provision on offences created under the Act and reads as thus :
Any person who contravenes or fails to comply with any provision of the Act shall :
a. If foreign vessel a fine not exceeding one million ringgit for
The owner or master and one thousand ringgit in the case of every member of the crew.
b. in all other cases, to a fine not exceeding twenty thousand ringgit or a term of imprisonment not exceeding two years or both.

Section 15 requires foreign vessels loading or unloading any fish, fueling or supplying or transshipping any fish in the Malaysian fisheries waters to have the written approval of the Director-General of Fisheries.

Meanwhile, section 26 forbids fishing with explosives, poisons or pollutants or any apparatus using electric current and so on.

Therefore, by indirectly circumventing unlawful access into the Malaysian waters by foreign fishing vessels the Act purports to curtail oil spillage to an extent. The enforcement of the Act comes under the purview of the Fisheries Department.

iv). The Environmental Quality Act 1974 (EQA 1974)
The EQA 1974 defines oil to mean:
a). crude oil, diesel oil, fuel oil or lubricating oil or
b). any other description of oil which is prescribed by the Minister charged with responsibility for the environment by order in the Gazette to be oil for the purposes of this Act.
Section 27 of the EQA1974 stipulates thus :
(1).No person shall , unless licensed, discharge or spill any oil or mixture containing oil into Malaysian waters in contravention of the acceptable conditions specified under section 21.
(2).Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable to a fine not exceeding (five hundred thousand ringgit) or an imprisonment not exceeding (five) years or both.
While the full ambit of enforcement is within the purview of the Director-General of Environmental Quality as defined in section 2 of the EQA 1974, the assistance of authorized officer may be sought. This is to include any fishery officer, port officer, police officer not below the rank of sergeant, customs officer, any officer of the armed forces, any public officer and any other person or class of persons appointed to be an authorized officer under section 39 of the EQA 1974.

2.2 HAZARDOUS AND NOXIOUS SUBSTANCES
Hazardous substances generally refer to :
· By-products generated in the production processes
· Sludge from waste- water treatment and
· Toxic items which expiry date has passed.

Noxious substances refer to any substance designated in the Appendix II Annexure 2 (with noxious substances in bulk) of MARPOL 73/78 or provisionally assessed under the regulations of Annex II as falling under category A, B, C or D as below :

Category A– Examples: Carbon disulphide, acetone cyanohydrins, cresols, naphthalene and tetraethyl lead i.e substances that can be a major hazard to either marine resources or human health and requiring stringent anti –pollution measures.
Category B- Examples : Carbon tetrachloride, ethylene dichloride and Phenol. i.e substances that can be a major hazard to either marine resources or human health and requiring stringent anti –pollution measures.
Category C- Examples : Benzene, styrene, toluene and xylene i.e substances that can be a minor hazard to either marine resources or human health and requiring stringent anti –pollution measures.
Category D- Examples :Acetone, phosphoric and tallow i.e substances that can be a minor hazard to either marine resources or human health and requiring stringent anti –pollution measures

2.2(a).The empowering conventions, treaties, policies and programmes pertaining to hazardous and noxious substances.

i). MARPOL 73/78
Despite the fact that the MARPOL 73/78 deals mainly with oil pollution it also covers accidental and operational pollution by chemicals, goods in packaged forms, sewage, garbage and air pollution. Furthermore, detailed pollution standards are set out in the annexures as indicated below:
1. Annexure 1 (with oil).
2. Annexure 2 (with noxious substances in bulk).
3. Annexure 3 (with harmful substances carried
by sea in packaged forms).
4. Annexure 4 (with sewage)
5. Annexure 5 (with garbage) and
6. Annexure 6 (with air pollution).

MARPOL 73/78 has come into force but Malaysia has not ratified it while Singapore has already ratified it. It is opined that if Malaysia also ratifies it then closer cooperation for preventing marine pollution, particularly as regards oil spills, in general in the Straits of Malacca can be obtained. Nevertheless, while the MARPOL 73/78 did not directly necessitate the formulation of any domestic laws its influence have had far reaching effects and this is undeniable.

ii).The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their disposal 1989.
This convention is an essential convention as regards hazardous and noxious substances.

Article 4(2)(d) requires parties to ensure that the transboundary movement (including the sea) of hazardous and other wastes is “conducted in a manner which will protect human health and the environment against the adverse effects which may result from such movement.”

Article 4(7)(b) requires that such wastes be packed , labeled and transported in conformity with relevant “generally accepted and recognized rules and standards.”

Implicitly the Basel Convention connotes enforcement at the level of inspection of the noxious and hazardous substances and this is pertinent to ensure that these do not move to the sea to wreak havoc. Malaysia ratified the Convention on 8th October 1993 .
Some of the essential features of the Convention are provided below:
ARTICLE 1
Scope of the Convention
1. The following wastes that are subject to transboundary movement shall be “hazardous wastes” for the purposes of this Convention:
(a) Wastes that belong to any category contained in Annex I, unless they do not possess any of the characteristics contained in Annex III; and
(b) Wastes that are not covered under paragraph (a) but are defined as, or are considered to be, hazardous wastes by the domestic legislation of the Party of export, import or transit.
2. Wastes that belong to any category contained in Annex II that are subject to transboundary movement shall be “other wastes” for the purposes of this Convention.
3. Wastes which, as a result of being radioactive, are subject to other international control systems, including international instruments, applying specifically to radioactive materials, are excluded from the scope of this Convention.
4. Wastes which derive from the normal operations of a ship, the discharge of which is covered by another international instrument, are excluded from the scope of this Convention.
Article 2
Definitions
For the purposes of this Convention:
1. “Wastes” are substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law;
2. “Management” means the collection, transport and disposal of hazardous wastes or other wastes, including after-care of disposal sites;
3. “Transboundary movement” means any movement of hazardous wastes or other wastes from an area under the national jurisdiction of one State to or through an area under the national jurisdiction of another State or to or through an area not under the national jurisdiction of any State, provided at least two States are involved in the movement;
4. “Disposal” means any operation specified in Annex IV to this Convention;
5. “Approved site or facility” means a site or facility for the disposal of hazardous wastes or other wastes which is authorized or permitted to operate for this purpose by a relevant authority of the State where the site or facility is located;
6. “Competent authority” means one governmental authority designated by a Party to be responsible, within such geographical areas as the Party may think fit, for receiving the notification of a transboundary movement of hazardous wastes or other wastes, and any information related to it, and for responding to such a notification, as provided in Article 6;
7. “Focal point” means the entity of a Party referred to in Article 5 responsible for receiving and submitting information as provided for in Articles 13 and 16;

iii).The United Nations Convention on the Law of the Sea
Article 195 of UNCLOS III imposes the duty on states not to transfer damage or hazards or transfer one form of pollution into another .
In addition to this the other aspects as proscribed are analogous to those in paragraph 2.1 a (iii) above on Oil Spills namely :
· Article 192 LOSC proscribed that it was the general duty to protect & preserve the marine environment from pollution from all sources.
· Article 207 to 234 and 236 LOSC defined the jurisdictional rights and obligations (legislative & enforcement) of flag, coastal and port states.
· Other related art in Part XII (Protection and Preservation of the Marine Environment) deal with principles (art 192-6), global & regional cooperation (art 197-201), technical assistance(art 202-3),
· Articles 204-6 deal with the monitoring and environmental aspects while Article 235 deals with responsibility and liabilities thereof.
These Articles obviously have contributed to the domestic laws pertaining to hazardous and noxious substances.

iv). Hazardous and Noxious Substances Convention (HNS) (1996)
Under the HNS Convention 1996, the shipowner is strictly liable for damage caused by Hazardous and Noxious substances (exclude radioactive matter).
The damage incurred may in the e form of loss of life or personal injury, loss of or damage to property outside the ship, loss or damage by contamination of the environment within 200 miles of land and the costs of preventive measures.`

The HNS Convention 1996 is analogous to the CLC Convention and CLC Fund set up for oil pollution and shall go a long way to benefit the affected states.

HNS and the CLC/Fund Conventions

The HNS Convention excludes pollution damage as defined in the International Convention on Civil Liability for Oil Pollution Damage and the International Convention on the establishment of an International Fund for Compensation for Oil Pollution Damage, to avoid an overlap with these Conventions.

However, HNS covers other damage (including death or personal injury) as well as damage caused by fire and/or explosion when oils are carried.

2.2(b). The Domestic Laws pertaining to hazardous and noxious substances.
i). The Customs Act 1967 and orders thereof
Section 109 of the Act authorizes the power to search vessels in any customs port or within territorial waters. The officer concerned can examine all goods on board and all goods then being loaded or unloaded and also demand all documents which ought to be aboard the vessels.

Also by virtue of The Customs (Prohibition of Export) (No.2) (Amendment) Order 1993 and The Customs (Prohibition of Import) (No.3) (Amendment) Order 1993, hazardous wastes without an appropriate license can neither be imported nor exported. Violation of these orders is subject to a punitive measure. Thus entry into the Malaysian waters of any ship loaded with toxic wastes without a prior license will amount to violation of the Malaysian law.

The Custom Act and the attendant regulations are considered to be the best tool for implementation of the Basel Convention as the Department of Environment has no direct control over the importation or exportation of wastes or the ports which serve as a conduit for these transactions.

ii).The Environmental Quality Act 1974 and regulations thereof
Under section 29 of the EQA 1974:
“ No person shall , unless licensed, discharge(environmentally hazardous substances, pollutants or ) wastes into the Malaysian waters…” and
“ Any person who contravenes ……. shall be guilty of an offence
and shall be liable to a fine not exceeding (five hundred thousand ringgit) or to imprisonment not exceeding (five) years or both.”
According to the Act :
““Environmentally hazardous substances” means any natural or artificial substance, including any raw material whether in a solid or liquid form, or in the form of gas or vapour or in the a mixture of at least two of these substances or any living organism intended for any environmental protection, conservation and control activity which can cause pollution.”
Under the Environmental Quality (Scheduled Wastes) Regulations 1989 every generation of any scheduled waste shall be brought to the notice of the Department of Environment within the prescribed time and shall be disposed of at prescribed premises only. Dumping them into Malaysian waters will be a punishable act.

iii). Merchant Shipping Ordinance 1952 (Ord. 70/1952)
As regards hazardous and noxious substances, the above Act also is contributive in tackling the problem though the term used is “ dangerous goods”. It is submitted that dangerous goods also constitute noxious and hazardous substances.

For example under :
Section 289. Restrictions on carriage of dangerous goods.

(1) A person shall not send or attempt to send by any vessel, and a person not being the master or owner of the vessel shall not carry or attempt to carry in any such vessel any dangerous goods, without distinctly marking their nature on the outside of the package containing the same and giving written notice of the nature of those goods and of the name and address of the sender or carrier thereof to the master or owner of the vessel at or before the time of sending the same to be shipped or taking the same on board the vessel.

(2) Any person who fails without reasonable cause to comply with this section shall be liable for each offence to a fine not exceeding ten thousand ringgit, but if he shows that he was merely an agent in the shipment of any such goods as aforesaid, and was not aware and did not suspect and had no reason to suspect that the goods shipped by him were of a dangerous nature, then not exceeding one thousand ringgit.

(3) For the purpose of this Part "dangerous goods" means -
(a) aquafortis, vitriol, naphtha, benzine, gunpowder, lucifer matches, nitroglycerine and petroleum;
(b) any explosives within the meaning of any written law in force in the Federation relating to explosives;
(c) any goods which by reason of their nature, quantity or mode of stowage are liable, either singly or collectively, to endanger the lives of persons on or near any ship, or to imperil any ship; and
(d) any other goods which may be declared to be dangerous goods by rules made or, as the case may be, having application under section 293.

293. Carriage of dangerous goods.

(1) The Minister may make rules for regulating in the interests of safety the carriage of dangerous goods in ships to which this section applies.

(2) This section applies to -
(a) all Malaysian ships whether such ships ply on an international voyage or not;
(b) .all other ships while they are within any port in Malaysia, or are embarking or disembarking passengers within the territorial waters of Malaysia, or are loading or discharging cargo or fuel within those waters.
(3)..Rules made under subsection (1) may prescribe such certificates as may be necessary for the purposes of the rules and may prescribe the fees payable in respect of such certificates.
(4). Until rules are made under subsection (1) , the rules made from time to time under the Merchant Shipping Acts with respect to the carriage of dangerous goods shall apply to ships to which this section applies.
(5). If any of the rules made under subsection (1) or, as the case may be, having application under subsection (4) , is not complied with in relation to any ship to which the rule applies, the person specified in the rules as being guilty of an offence for the non-compliance or, if no person is so specified, the owner or master of the ship shall be liable in respect of each offence to a fine not exceeding fifteen thousand ringgit or such lesser amount as may be prescribed in the rules for the offence, and the ship shall be deemed for the purposes of this Part to be unsafe by reason of improper loading.
2.3 . Other domestic laws indirectly tackling the problems of
Oil - spillage, hazardous and noxious substances.


(i). The Continental Shelf Act 1966 vide its section 6 provides for the making of laws to protect the living resources of the sea and the natural resources of the continental shelf from harmful agents.
While “harmful agents” are wide in its ambit, it is submitted that oil, noxious and hazardous substances come within its parameters for these too can wreak havoc to the natural resources in the sea.

(ii). The Petroleum Mining Act 1966
The Act purports to place restriction on petroleum exploring, prospecting and mining. Under section 3 (1) of the Act no person is to explore, prospect or mine without an exploration licence or a petroleum agreement.

These activities may be on land (including off-shore land adjacent to and contiguous with the on-shore ) and also “off-shore land” (i.e area of the continental shelf).
While these Acts do not directly curtail they do in a minimal manner cater towards tackling the problems of oil spillage, hazardous and noxius substances.
3. CONCLUSSION
While laws have been enacted, many following the international treaties and conventions the problem at the Straits of Malacca still pose as an obstinate impediment not to be easily circumvented. The domestic laws often require the enforcement of several bodies namely the Department of Marine, Customs, Department of Environment and the Attorney General’s Chambers (in matters of prosecution). In most of the laws the authorized officers can be from any of these departments and even the police.

What is important is not just domestic laws and their enforcement but commitment also by the user states. Mere lip service as to concerted efforts to combat the problem caused by their vessels is not sufficient. Only Japan has made some positive contribution. For example in 1981 it founded a revolving fund and it valued at 400 million yen. [12] This is to be used for immediate clean-up of oil-spills. Similarly the Japanese government has contributed 9973 million yen since 1976 to install navigational services in the Straits of Malacca. This is insufficient and the following questions remain :
Should Malaysia continue to subsidise the international community by providing free services for their use ?
What should be the form of contributions by the international communities to defray the costs of damage at the Straits of Malacca?
Who should pay for these and how ?
What institutions should be created to manage more effectively the services in the Straits of Malacca ?
Until these are answered and implemented accordingly the Malaysian government is definitively holding an economic time-bomb clicking away and waiting to blow the economic cake disproportionately sending ripples to the nation as a whole !





1] Lecture Notes by Pn. Wan Adibah Wan Dahalan., FUU UKM
[2] Pgs.329-333- The Law Of The Sea by R.R.Churchill and A.V.Lowe
[3] Pgs 135 and 136 –The Straits of Malacca, International cooperation in trade funding & Navigational
safety.

[4] Pgs 127 and 128 –The Straits of Malacca, International cooperation in trade funding & Navigational
safety.
[5] Preamble to the Merchant Shipping (Oil Pollution) Act 1994
[6] Pg 206 - The Straits of Malacca, International cooperation in trade funding & Navigational safety.

[7] Noor Apandi Osnin, Waste Reception Facilities Under MARPOL 73/78 Centre for Ocean Law and
Policy, Maritime Institute of Malaysia, January 2004

[8] Noor Apandi Osnin, Waste Reception Facilities Under MARPOL 73/78 Centre for Ocean Law and
Policy, Maritime Institute of Malaysia, January 2004

[9] Noor Apandi Osnin, Waste Reception Facilities Under MARPOL 73/78 Centre for Ocean Law and
Policy, Maritime Institute of Malaysia, January 2004

[10] http:www.imo.org/conventions
[11] Article – Protection of the Marine Environment from Sea-Bed Pollution – Mohd Nizam Basiron
[12] Pg 137- –The Straits of Malacca, International cooperation in trade funding & Navigational
safety.

Challenges to the Bolam Test

CHALLENGES TO THE BOLAM TEST - THE MALAYSIAN SCENARIO
--------------------------------------------------------------------------------

By: MADAWAN A. NAIR
BEcons(Hons)Mal, LLB(Hons)Lond, LLM(UKM), CLP
Advocate & Solicitor
HIGH COURT OF MALAYA


1. INTRODUCTION
The growing proliferation of medical negligence cases world-wide is proportionate with the increased level of awareness and education. In the USA it has reached “crisis proportions” while in UK there has been an upsurge in litigation. In Singapore and Malaysia there has been a reasonable increase.[1] Medical negligence litigation in Malaysia is fault-based (with the Plaintiff having to discharge the burden of proof on the balance of probabilities) and is fraught with practical problems like [2]:
a). Limitation Period.
For action against doctors in Government hospitals it must be brought within 3 years as per the Public Authorities Protection Act 1948. For private doctors the action in Peninsular Malaysia must be brought within 6 years and in Sabah and Sarawak within 3 years.
b).Access to medical records.
Generally, the parties have to obtain access only by subpoena to produce documents at trial at a very late stage.
c). Pleadings must be replete with sufficient particulars.
For this there has to be early discovery of documents, including relevant medical records.
d).Damages
Amendments to the Civil Law Act 1956 especially sections 7, 8 and 28A have caused personal injury damages to be low. Medical Negligence is no exception. As against this is the legal costs which tend to be very high, compared to other types of personal injury litigation.
Despite that the growing number of cases baffles the mind.

2. The Unique position of Negligence in the field of medicine.

The standard of care, which the law demands of a person in a normal case, has been established to be the standard of a “reasonable care”. If a person achieves the standard satisfied by the hypothetical reasonable man, then he will not be adjudged negligent at common law. The courts are not weighed down in understanding and applying this standard because the judges are aware of and understand everyday happenings and circumstances. As ordinary citizens, living and co-existing within the fabric of society itself, it is not difficult for them to comprehend what a hypothetical reasonable man would be like.

However, this situation cannot be equated with the standard of care in medical negligence. Medicine has always been shrouded with intricacies and technicalities, which may be beyond the comprehension of judges and jury who have not undergone the rigours of medical training.[3]

In most cases of tort, negligence alone could be attributed to the damage caused. If the defendant had not been negligent then the damage may not have been caused. However, in the field of medicine, no matter how careful a doctor has been the results are not guaranteed. As said by editors of Jackson & Powell:
“Medicine is perhaps the classic example of a profession in which results are not guaranteed and are not expected to be guaranteed.” [4]

A motor vehicle accident could be averted if the defendant driver had not been negligent as regards maintaining the correct air-pressure in the tyres. In the case, of an operation despite all the precautions taken diligently and with the best surgeon and surgical team the patient can still die during the operation from unknown causes. Commonly, we attribute fate (or divine intervention) to the reason – that the Almighty has decided to terminate the life of the patient .

3. The main elements of Negligence in the Bolam test

The determination of liability under the Bolam test is dependant upon the consideration of a number of crucial elements. The main ones in the first part of this test, inter alia, are [5]:

a). The doctor must have acted in accordance with “accepted medical practice”.

Accepted medical practice here means a practice accepted as proper by a responsible body of medical opinion. In Whitehouse v Jordan, the defendant was alleged to have been negligent in pulling too long and too hard with the forceps i.e six attempts with the forceps and taking 25 minutes. As a result, the baby was born with severe and irreparable brain damage. Upholding that the Defendant had been negligent , Lord Edmund Davies at the House of Lord approached the Bolam principle in these words:

“ To say that a surgeon committed an error of clinical judgment is wholly ambiguous, for, while some such errors may be completely consistent with due course of professional skill, other acts or omissions in the course of exercising “clinical judgment” may be so glaringly below proper standards as to make a finding of medical negligence inevitable…”

b). Accepted practice to be the current practice.

It is incumbent upon the defendant to keep abreast with the latest developments in his field of medicine. For the judge, the current practice must be the one on the date of the operation or treatment and not on the date the claim comes to trial. In Roe v Minister of Health & Anor [6] , the incident occurred in 1947 but the claim only came to trial in 1954. The risk of the incident happening was only drawn to the attention of the medical profession in 1951. Lord Denning said one cannot judge a 1947 incident using knowledge that came to light only in 1951.

Any departure from the accepted practice is not in itself a negligence provided that the defendant can justify his actions. In Hunter v Hanley [7], Clyde LP said :

“ It follows that what I have said that in regard to allegations of deviation from ordinary professional practice…such deviation would be disastrous if this were so, for all inducement to progress in medical science would then be destroyed. Even a substantial variation from normal practice may be warranted by the particular circumstances..”

In UK the above principle was applied in Clark v MacLennan, the court held that the gynaecologist had carried out an anterior colporrhaphy operation within four weeks. This deviation was not justified because the normal waiting period was three weeks to avert the risk of haemorrhage [8]. In Malaysia, in the local case of Dr.Wong Wai Ping & Anor v Wong Lin Sing & Ors [9] , where it was held that by under-estimating the loss of blood of a patient, the appellant doctor had clearly departed from the ordinary reasonable skill of a gynaecologist.

The second part of the Bolam principle embraces the following pertinent points namely :

a). The accepted practice must be regarded as proper by “ a reasonable body of medical men” skilled in that art.

In a nutshell, the accepted practice must be endorsed by a responsible body of medical opinion who should possess similar knowledge in that particular practice, specialty or sub-specialty of practice. However, to the practicing counsel the following queries baffle him :

i). Numerically how many medical practitioners’ opinion in that practice or specialty or sub-specialty ought to be considered ?

ii). What if the practice or specialty or sub-specialty only had a few registered practitioners in it Must all of them be called as expert witnesses ?
Cases like DeFrietas v O’Brien and Connolly tend to suggest that the numerical extent is unimportant. Otton LJ in the Court of Appeal of the afore-said case remarked thus:

“ There was evidence.. that a small number of tertiary specialists could constitute a responsible body of medical opinion.. the issue whether or not to operate could not be determined by counting heads .. a small number of specialists specialists (could constitute ) a responsible body ( which in found).. the defendant’s decision justified.”[10]

It is comforting to state that it is a question of fact before the courts and that not just the aspect of mere numbers that count. However, the numerical aspect is important too- particularly when both sides in a trial are flexing their muscles to show the number of expert witnesses in the form of doctors they are going to bring into the witness box. Somehow or rather, whether it is human frailty of mind or the effect of overwhelming number of expert witnesses or appreciation of the hard work of the counsel who brought in the largest number of expert witnesses the bench is bound to be moved in favour of large numbers.

Therefore, Plaintiff’s lawyer is still faced with these nagging questions - calling how many doctors of that practice or specialty or sub-specialty would be considered substantive to prove his claim and to show the court that the Defendant had not been in conformity with “ a responsible body of medical men” ? Would just calling one specialist of great repute and experience suffice ? Or must there be more witnesses of that kind to move the judge in accord with his line of argument in establishing the case ? These are salient questions baffling the lawyers out there in the courts. Compounded to this, is the aspect of cost to the Plaintiff if great numbers of doctors of a particular specialty or sub-specialty are called as witnesses – considering cost of attendance and wasted costs when there are adjournments of cases in favour of criminal trials. The plethora of cases decided in Malaysia have certainly not circumscribed the limit and nature of evidence that has to be brought into the courts to support this area of substantiality. It varies from judges to judges and from case to case with infinite latitude of non-restrictiveness.

In the Malaysian context, the words of His Lordship James Foong JCA may add a bit of comfort in this area :

“As to the numbers of such medical men to be called to testify, I noticed very often, lawyers for the claimant are more enthusiastic in emphasizing this requirement……one must lose sight of the fact that it is the quality of such opinion that matters, not the quantity.”[11] (emphasis added).

However, it is opined, that despite considering “the quality of such opinion”, the eclipse of subjectivity still shrouds the judges . How are they to ascertain the “quality of such opinion” – by the strings of professional degrees of the expert or his honorary titles like Datuk and Tan Sri ? Does a past record of extensive research some 10 years ago suffice ? Or must the research be in that field of expertise addressing current issues in medicine ?
The situation becomes even more complicated when the standard operating procedures of doctors differ from one hospital to another. For example, some hospitals have triaging procedures in the Accident & Emergency (A & E) Units where the in-coming patients are assessed first by the Medical Assistants and then directed to different rooms according to the severity of the conditions while others do not.

Therefore, while the Bolam test does give us a guideline to approach the aspect of negligence it is silent as to how this aspect of subjectivity (that the judges have to grapple with) be addressed. The Bolam test has provided us with the fishing rod and line but the hook and bait certainly are missing ! It is suggested that the judge be assisted by assistant judges who in themselves are eminent medical practitioners of repute and the counsel be advised during the case management stage as to the number of expert witnesses they are to bring.

b). Judges can reject medical expert evidence if they do not stand up to analysis.

In the case of Hucks v Cole [12], where the defendant a gyanaecologist was found negligent for stopping the administration of tetracycline after a five day course of and which resulted in the Plaintiff contracting septicemia and puerperal fever. The defendant was found guilty of negligence because he did not take ‘every precaution” (i.e did not use Penicillin) to prevent the outbreak of puerperal fever and it mattered not if other doctors would have acted as him. Sachs LJ said :
“ Where the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risks, the courts must anxiously examine the lacuna…..particularly if the risks can be easily and inexpensively avoided. If the court finds an analysis of the reasons given for not taking the precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that is definitely not reasonable that those risks should have been taken, its function is to state that it constitutes negligence. In such a case, the practice will no doubt thereafter be altered to the benefit of the patients.”

Cases like Gascoine v Ian Sheridan & Co[13] and Joyce v Wandsworth Health Authority[14] followed the approach held in Hucks i.e the evidence must stand up to analysis. Most of the cases still staunchly followed in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital[15] .However in the House of Lord’s decision in Bolitho v City & Hackney Health Authority [16] the decision of Hucks was upheld namely that the court is not bound to hold that a defendant doctor can escape liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant’s treatment and diagnosis accorded with sound medical practice.[17] His Lordship, Lord Browne-Wilkinson held that the word “responsible” used by McNair J in Bolam “shows that the court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis.”[18] While this settles the inadequacy inherent in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital, it is opined that there still remains an area that has not been made clear. It is clear beyond doubt that evidence must stand up to analysis as far as diagnosis and treatment is concerned. What about in the aspect of duty to warn ?

Inherently, while the “subject to analysis” approach seems to heighten the supremacy of the judiciary as the sole fountain of justice, there are nevertheless other practical problems that need to be considered, namely :

(i). To counter the body of medical opinion by analysis, the judges need to have as evidence the opinion of another group of medical experts who are certainly better than that of the defendant. If the evidence is as regards a sub-specialty where only two doctors, for example, are available in this country from where else can the judges garner their evidence to lend credence to their “subject to analysis” approach?

(ii). Can judicial intervention be justified when the judges themselves are not medical experts ?

(iii). Can the judges locally overburdened with work singularly handle the machinations of the “subject to analysis” approach what more in the absence of the jury as in UK ?

(iv). The effect of the uncertainty and the resultant delay to the Plaintiff who is bent on seeking justice at an affordable cost.

4. The global onslaught on the Bolam test

The Bolam test has been stretched to its limit with the international development of law on medical negligence. The test has been tested as regards its efficacy and practicality pertaining to the duty to disclose risks, diagnose and treatment. The Bolam test did not dichotomize the doctor’s duty into diagnosis, treatment and advice . The common law courts have regarded the legal duty of care in the tort of negligence as a single and indivisible duty and hence the same standard applied no matter what the stage, nature or context of medical treatment.[19] In this sense and against the growing wave of patients’ claim towards greater participation in medical-decision making, the Bolam test has been viewed as both archaic and anachronistic. It has remained only relevant for a period of time and is not accommodative of the impending growth in the medico-legal development of the law of negligence.

The UK position is best expressed by Lord Diplock in Sidaway v Board of Governors of the Bethlem Hospital and the Maudsley Hospital as follows:

“ In English jurisprudence the doctor’s relationship with his patient which gives rise to the normal duty of care to exercise his skill and judgment to improve the patient’s health…has hitherto been treated as a single and comprehensive duty…This general duty is not subject to dissection into a number of component parts to which different criteria of what satisfy the duty of care apply, such as diagnosis, treatment, advice (including warning of any risks of something going wrong however skillfully the treatment advised is carried out).”[20] (emphasis added).

While the aspect of diagnosis and treatment have remained somewhat untouched, the aspect of advice (or as now commonly called the doctrine of informed consent) has loomed large in the medico-legal fraternity. It is buttressed upon individual autonomy and is a certain breakaway from the principle of medical paternalism. The doctrine of informed consent protects the patient’s right to determine his or her destiny in medical matters; it guards against overreaching on the part of the physician; it protects his physical and psychic integrity and thus his privacy ; and it compensates him both for affronts to dignity and for the untoward consequences of medical care.[21]

a). The impending challenge in UK.

In the United Kingdom, the birth place of the Bolam test, the principle of medical paternalism seems to have a stronger hold as regards the principle of patient autonomy. In Hills v Potter [22], the plaintiff was paralysed following an operation to correct a neck deformity and asserted that the defendant had never told her that she might be worse off following the operation. All three neurosurgeons testifying as expert witnesses stated that they would have acted similar to the defendant i.e the risk of possible paralysis would not have been given to the patient. The court in making the decision rejected the North American doctrine of informed consent by which it meant using the prudent patient test formulated by Canterbury. Hills J., claimed that :

“formidable problems and potential liabilities (would) confront medical men.”

In Sidaway v Board of Governors of the Bethlem Hospital and the Maudsley Hospital, it was held that it was a matter for the doctor’s clinical judgment which risks should be disclosed to enable the patient to make a rational decision. Thus, the Plaintiff’s argument that the defendant had been negligent in not telling her of the risk of damage to the spinal cord, failed. On the issue of whether the doctrine of informed consent based on the “prudent patient” test formulated in Canterbury has any place within English law; there was a split of 4:1 in the House of Lord. Lord Diplock, Lord Bridge, Lord Keith and Lord Templeman rejected the Canterbury principle of informed consent. However, Lord Scarman dissented and did not rule out the Canterbury proposition. According to him “ the doctor’s duty arise from the patient’s rights ” and therefore the doctor has to inform to the patient of all inherent material risks.[23] Nevertheless, it would seem that the House of Lord’s decision was prompted by policy considerations, specifically the fear of escalating practice of defensive medicine. As to whether, it would relent to the global incursion into the Bolam principle is yet to be seen. Lord Scarman’s dicta that “ the doctor’s duty arise from the patient’s rights ” should not be cast aside lightly. In the present era where medical cost is escalating and there is a proliferation of health insurance companies ,the judgment in Sidaway may see a reversal after all. Juxtaposed against this is the growing enchantment towards individual autonomy and the right to choose propagated by Human Rights groups and enshrined in the constitutions of several countries.

The situation becomes more pressing for the doctor to inform the patient of all risks either material or otherwise because in the private hospitals hefty bills are paid by the patient and they expect value for money. After having received large amounts of money from the patient can it be said that the disclosure of material risks is subject to the doctor’s clinical judgment decision ? Can such doctors survive in the face of competition where the rival doctors are less stringent on the aspect of disclosure of material risks ? It is a well known fact that patients prefer doctors who are friendly, frank and competent. Added on to this, the patients these days are well informed of the risks themselves with the availability of information from the internet. Considering all these development it is not wrong to say that Lord Scarman’s dicta has some truth in it. The dicta is bound to have effect in the years ahead.

b). The challenges to the Bolam test in the USA and Australia

In the USA, the case of Canterbury v Spence echoed the dissatisfaction over medical paternalism as regards informed consent . In this case the Plaintiff suffered paralysis as a result of undergoing a laminectomy. He claimed that the doctor was negligent in failing to warn him of the risk of paralysis. Robinson J said that “respect for the patient’s right of self determination on a particular therapy demands a standard set by law for a physician rather than one which physicians may or may not impose upon themselves.” This came to be named as the “prudent patient” test. This approach was certainly a breakaway from the earlier cases of Salgo v Leland Stanford Jr University Board of Trustees and Natanson v Kline both of which held that the patient should receive information about the proposed treatment, the kind of information to be imparted would rest in the hands of the doctors involved i.e what is “material” would be matter for medical judgment.

However, it should be noted that judgments by the Supreme Courts of California and Rhode Island followed the “prudent patient” test as in Canterbury. However, the majority of the jurisdictions in the USA were content with the pre-Canterbury approach namely that is informed consent regulated by medical experts.[24] Thus, in other words, as far as the USA is concerned the essence of the Bolam test still is pervasive and medical paternalism is still much respected.

In Australia, the supreme Court in F v R [25], firmly rejected the standard of disclosure based on medical judgment. The Plaintiff in this case was not informed of a 1% chance of getting pregnant despite having a tubal ligation i.e of the operation becoming reversible. She subsequently became pregnant and sued the Defendant. The Supreme Court found the Defendant not guilty but noted that the opinions of medical witnesses on the standard of disclosure are not decisive. It was concluded that medical judgment may be relevant but not conclusive in determining the adequacy of disclosure. That is a question for the court and the duty of deciding it cannot be delegated to any professional group in the community.[26] After the F v R the Australian court was given the golden opportunity in the leading case of Rogers v Whitaker [27]to resolve the conflict between the “prudent patient” test recognized in Canterbury v Spence and the “doctor knows best” test in Sidaway v Governors of Bethlem Hospital.. In this case, the Defendant was held negligent and that he had failed in his duty of omitting to tell the Plaintiff of the risk of contracting sympathetic opthalmia following an eye operation ( though experts gave opinion that generally this occurred once in approximately 14000 such procedures). The court highlighted the following reasons namely that the Plaintiff had questioned him about possible complications involved in the procedure. Secondly, she had expressed a great deal of concern about protecting her left eye, even though she had not specifically asked about whether the operation on her right eye could lead to her developing a debilitating inflammation of her left eye and finally, the materialization of the risk had disastrous consequences for her.[28]

Thus, the emphasis here is that patients are entitled to make their own decisions about medical procedures and be given information to make an informed choice. Furthermore, the determination of liability with regards to the non-disclosure of risks or proposed medical treatment is a matter of law and not medical judgment. Another drastic blow to the Bolam test in Australia is the High Court case of Naxakis v Western General Hospital [29]. The decision in Naxakis has confirmed a total rejection of the application of Bolam principle to the doctor’s duty to advice, diagnose and treatment in Australia. The main thrust of the case concerns a schoolboy who was struck twice on the head by a fellow schoolmate. The case was against the hospital and doctor concerned whom the court found should have considered an angiogram which they did not do. Thus the negligence was imputed by the Australian. It was held that it has to be decided “whether it was reasonable for one or more of the steps to be taken…(and this) was not for expert medical witnesses to say whether those steps were reasonable or were not reasonable.” Further , his Honour Gaudron J said “ questions as the reasonableness of particular precautionary measures are…matters of common sense.”


c). The uncertainties as regards the Bolam Test in Malaysia.

As far as Malaysia is concerned, several uncertainties are revolving around the Bolam test and the general sentiment propounded by the Court of Appeal in Foo Fio Na & Anor v Dr Soo Fook Mun is that the present threshold for the Plaintiff to cross in an action for medical negligence is fairly high and lowering this threshold would encourage doctors to practice defensive medicine. Thus, impliedly the principle will still be used in determining liability of the doctor whether with regards to duty to disclose risks, diagnose and treatment.

According to Gopal Sri Ram JCA in Foo Fio Na & Anor v Dr Soo Fook Mun :

“….There may perhaps come a time when we will be compelled to lower the intervention threshold if there is a continuing slide in medical standards. But the day has not yet come.”

With much respect to His Lordship, his contention that we have to wait for the day to come before casting aside the paternalistic principle in Bolam is very disheartening. In fact, when compared to medical standards of doctors in UK, Australia and the USA we are certainly already far behind . Must we wait until the state of affairs deteriorate further and many innocent Plaintiffs are denied justice per se ? For example, as far as informed consent is concerned, the main problem in Malaysian hospitals is that their consent has rarely been “informed” in nature. The patients are merely asked to sign consent forms before any operation but in reality, they do not understand what they are signing. They are rarely informed about the risks inherent in any proposed treatment.[30] This was considered in the case of Tan Ah Kau v. Government of Malaysia [31], where the main issue before the court was whether at the time when the plaintiff signed the consent forms, he understood the nature and consequences of the consent. The court held that no consent was actually given by the plaintiff, as the content of such consent had not been fully and comprehensively explained to the plaintiff.

It is submitted that there is an additional aspect to the doctor-patient communication that has been overlooked. In the present context with an influx of foreign doctors sitting out there in government hospitals and the growing number of patients the following pointers ought not to be disregarded:

(a). Are the foreign doctors e.g the ones from Myanmar competent in putting across the inherent risks to the patients who may come from a varied range of backgrounds with different level of competency in languages ?

(b). Are the doctors capable of putting across to the laymen in the most ordinary language of the inherent risks ?

(c). Juxtaposed against the increasing number of patients do the doctors have the time to leisurely explain to the patients of the potential risks ?

(d). Is the advice given direct from the doctors who are going to perform the operation or does in come from the mouth of an intern ?

With these plethora of problems lurking in the hospital front, it is submitted that the “wait and see” attitude propounded by the Court of Appeal is far-fetched. Hence, the Bolam principle is losing its absolute relevance.
In Malaysia, the Bolam principle has nevertheless been applied extensively by the courts in medical negligent cases when determining the standard of care. Such cases include:
(1) Swamy v. Matthews [32][
(2) Chin Keow v. Government of Malaysia and Another [33]
(3) Elizabeth Choo v. Government of Malaysia [34]
(4) Kow Nam Seng v. Nagamah & Ors [35]
Following the decision of the Rogers' case in 1992, conflicting judgments have been delivered in our courts over the preference and application of the Rogers v. Whitaker test to the Bolam test.
In Liew Sin Kiong v. Dr Sharon DM Paulraj [36] the plaintiff sued the defendant for aggravated or punitive damages for negligence pertaining to the operation of his right eye which was lost to post-operative infection. The plaintiff also alleged that a Seton procedure, which the plaintiff's 1st doctor had recommended should have been carried out, and not a repeat trabeculectomy which the defendant had performed. His Lordship Ian Chin J followed Sidaway and found that the plaintiff had failed to prove that the defendant had not acted in accordance with the standards of a competent ophthalmologist.
However, in Tan Ah Kau v. The Government of Malaysia [1997][37] . Rogers v. Whitaker principle was applied. In this case, the servant and/or agent of the defendant carried out a surgical operation on the plaintiff who had a history of an injury to his back caused by a piece of wood. The provisional diagnosis was that of a prolapsed disc. An orthopedic surgeon examined the plaintiff and made a provisional diagnosis of intra spinal tumor at the level of the thoracic vertebra D11 and D12. After numerous tests the cause of the tumor was ascertained as low grade astrocytoma. He was completely paralysed waist down. The plaintiff sought damages from the defendant for the alleged negligence and/or breach of professional duties.
In applying the Rogers v. Whitaker test, Low Hop Bing, J (as he then was) arrived at the following conclusion of his judgment:
““In the instant case, where the risk of paralysis was very real, more so than the tumor was intramedullary, it was absolutely essential for the attending surgeon such as DW1 or any doctor assisting him to warn the patient of the foreseeable risk of even a finding of intramedullary.” (emphasis added).
The uncertainty of the application of the Bolam principle in Malaysia was “somewhat” put to rest with the Federal Court decision in Foo Fio Na V. Dr. Soo Fook Mun & Anor. [38]
The question of law that was posed to this appeal was couched in the following words.
“ Whether the "Bolam Test" as enunciated in Bolam v. Friern Hospital Management Committee the area of medical negligence should apply in relation to all aspects of medical negligence.”
The judgment by Her Lady Siti Norma Yaakob FCJ reads as follows :
“Therefore there is a need for members of the medical profession to stand up to the wrong doings, if any, as is the case of professionals in other professions. In so doing people involved in medical negligence cases would be able to obtain better professional advice and that the courts would be appraised with evidence that would assist them in their deliberations. On this basis we are of the view that the Rogers v. Whitaker test would be a more appropriate and a viable test of this millennium then the Bolam test. To borrow a quote from Lord Woolfe's inaugural lecture in the new Provost Series, delivered in London in 2001, the phrase "Doctor knows best" should now be followed by the qualifying words "if he acts reasonably and logically and gets his facts right ". (emphasis added).
On that finding , the Federal Court answered the question posed to them in the negative and ordered that the appeal be allowed with costs there, in the Court of Appeal and in the High Court to be borne by the respondents and the orders of the High Court on quantum are to be restored.
Construing this decision literally against the question posed before the apex court and the glorification of Roger v Whittaker as the viable test of the millennium it could mean that the Bolam test should not apply in relation to all aspects of medical negligence i.e the advice, diagnosis and treatment stages. Thus, paternalism of doctors goes out of the proverbial window .

Yet in the same breath while glorifying Roger v Whittaker, the Federal Court decision adds thus the phrase " ‘Doctor knows best’ should now be followed by the qualifying words ‘if he acts reasonably and logically and gets his facts right’ . This has certainly created the furore in the legal fraternity. It has been taken to mean thus by many i.e the doctors’ decision is still paramount but it is subject to intervention by the courts if he does not reflect the required reasonability and logic.
While deliberating the case, the Federal Court found it incumbent to consider a weakness in the Bolam principle namely :
“…….that there is a distinction between the test of negligence based on the reasonable competent man and that of the ordinary skilled man. The former makes it clear that negligence is concerned with the departures from what ought to have been done in the circumstances which is measured by reference to a hypothetical 'reasonable doctor' and the latter places considerable emphasis on the standards which are in fact adopted by the profession. He emphasizes that the point is for the court to determine what the reasonable doctor would have done, not the profession. What the profession does in a given situation will be an important indicator of what ought to have been done, but it should not necessarily be determinative. In the final analysis the court should set the standard of care in negligence, drawing upon the evidence presented. The Bolam test fails to make this important distinction between the reasonable competent doctor and the ordinary skilled doctor.”

The above deliberation of the Bolam test and that it has failed to vividly dissect the approaches pertaining to “ordinary skilled man” and “reasonable competent man” reinforces the contention that “the doctors’ decision is still paramount but it is subject to intervention by the courts if he does not reflect the required reasonability and logic.”

Going by this interpretation, it is also not incorrect to say that the Federal Court has created a new hybrid test i.e a test that supports “medical paternalism” (or the Bolam’s test) on the one hand and court’s conditional intervention on the other. It could be the reason why the Federal Court has not followed Naxakis v Western General Hospital[39] (which absolutely casts aside the Bolam test for all aspects of Medical Negligence).

5. Conclussion

The Federal Court decision is most welcome as it has “somewhat” cleared the air of uncertainty. Major questions still need to be deliberated upon such as :

a). Is the decision suggestive of discarding the Bolam test totally ?
b). If so which aspect of medical negligence-advice, diagnosis or treatment ?
c). Is a new hybrid test created, that embodies the Bolam test but at the same time permitting court’s intervention.?

Whatever the true intention of the Federal Court is, the mist shall clear itself when new cases on medical negligence are being tested in the court’s arena and judges deliberate their decisions. It shall be interesting to note how the bench is going to apply the Federal Court’s decision.
What is undeniable is the challenge to the Bolam test is not spurious but a reality. Its very fabric is shaken and its pro-paternalistic slant is vehemently questioned. The medical profession, on the other hand, with the growing number of negligence cases, is losing its glory and lustre. Alongside this, its opinions are no more sacrosanct but subject to questions and analysis. As for the legal counsel, his uphill task is made more arduous with greater uncertainty spelt out by decisions that do not smack of precision and certainty.


-------------------






UNIVERSITI KEBANGSAAN MALAYSIA
FAKULTI UNDANG-UNDANG
UNDANG-UNDANG PERUBATAN
( UK 6194 )

THE CHALLENGES TO THE BOLAM TEST AND THE
PRACTICING COUNSEL

M.MADAWANA @ MADAWAN A/L APPUKUTTIN NAIR
SEMESTER 2 2008/2009 SESSION
(P 43948)

LECTURER : PROF.MADYA DR.ANISAH CHE NGAH

BIBLIOGRAPHY

1. Lecture Notes of Prof Dr Anisah Che Ngah
2. Medical Negligence Law in Malaysia - Dr.Puteri Nemie Jahn Kassim
3. Jackson & Powell on Professionl Negligence, 4th ed., Sweet & Maxwell London,1997
4. Medical Negligence Litigation : Time for Reform – PS Ranjan (Issues in Medical Law and Ethics).
5. Medical Negligence Claims:Evidence, Procedure,Trials & Assessment of Damages (in Medical Negligence Law in Malaysia –Dr.Puteri Nemie Jahn Kassim pg 54 )
6. F v R (1983) 33 SASR 189
7. Roe v Minister of Health & Anor (1954) 2 QB 66
8. Dr.Wong Wai Ping & Anor v Wong Lin Sing & Ors (1999) 6 CLJ 23
9. Hucks v Cole (1993) 4 Med LR 393
10. Naxakis v Western General Hospital (1999) 73 ALJR 782
11. Contemporary Issues in Law, Medicine and Ethics - Edited by Sheila A.M McLean
12, Law and Medical Ethics (Fifth Edition) – Mason & McCall Smith
13. Medical Law : Test with Materials (Second Edition) – Ian Keneddy and Andrew Grubb.
14. Foo Fio Na V. Dr. Soo Fook Mun & Anor [2007] 1 CLJ 229
15. Tan Ah Kau v. The Government of Malaysia [1997] [1] 2 CLJ Supp 168
16. Liew Sin Kiong v. Dr Sharon DM Paulraj

[1] Lecture notes of Prof.Madya Dr. Anisah Che Ngah
[2] Medical Negligence Litigation : Time for Reform – PS Ranjan (Issues in Medical Law and Ethics)
[3] Medical Negligence Law in Malaysia –Dr.Puteri Nemie Jahn Kassim pg 31
[4] Jackson & Powell on Professionl Negligence, 4th ed., Sweet & Maxwell London,1997.
[5] Medical Negligence Law in Malaysia –Dr.Puteri Nemie Jahn Kassim pg 34- 36
[6] (1954) 2 QB 66
[7] Medical Negligence Law in Malaysia –Dr.Puteri Nemie Jahn Kassim pg 35
[8] (1983) 1 All ER 416
[9] (1999) 6 CLJ 23
[10] (1995) 6 Med LR 108
[11] Medical Negligence Claims:Evidence, Procedure,Trials & Assessment of Damages (in Medical Negligence Law in Malaysia –Dr.Puteri Nemie Jahn Kassim pg 54 )
[12] (1993) 4 Med LR 393
[13] (1994) 5 Med LR 437
[14] (1996) 7 Med LR 1
[15] Medical Negligence Law in Malaysia –Dr.Puteri Nemie Jahn Kassim, pg 41
[16] (1997) 4 All ER 771
[17] Ibid at pg 778
[18] Medical Negligence Law in Malaysia –Dr.Puteri Nemie Jahn Kassim, pg 41
[19] Medical Negligence Law in Malaysia - Dr.Puteri Nemie Jahn Kassim, pg 46
[20] (1985) 1 All ER 643
[21] Medical Negligence Law in Malaysia - Dr.Puteri Nemie Jahn Kassim pg. 2
[22]
[23] Medical Negligence Law in Malaysia - Dr.Puteri Nemie Jahn Kassim pg 7
[24] The Doctrine of Informed Consent in the United States, England,Australia and Malaysia : A comaparitive Analysis – Puteri Nemie Jahn Kassim and Mohamad Akram Shair Mohammad (in
Medical Negligence Law in Malaysia - Dr.Puteri Nemie Jahn Kassim).
[25] (1983) 33 SASR 189
[26] Medical Negligence Law in Malaysia - Dr.Puteri Nemie Jahn Kassim pg 8
[27] (1992) 175 CLR 479
[28] Issues in Medical Law and ethics (Puteri Nemie Jahn Kassim and Abu Haniffa Mohamed Abdullah)
[29] Medical Negligence Law in Malaysia - Dr.Puteri Nemie Jahn Kassim pg 69
[30] Issues in Medical Law and ethics (Puteri Nemie Jahn Kassim and Abu Haniffa Mohamed Abdullah p13
[31]
[32] (1966] 1 LNS 18
[33] [1967] 1 LNS 25
[34] [1960] 1 LNS 24
[35] (1981] 1 LNS 147
[36] [1996] 2 CLJ 995
[37] 2 CLJ Supp 168
[38] [2007] 1 CLJ 229
[39] (1999) 73 ALJR 782