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CASE(S) HIGHLIGHT
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SUNDRA RAJOO NADARAJAH v. MENTERI LUAR NEGERI, MALAYSIA & ORS
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
ROHANA YUSUF PCA
MOHD ZAWAWI SALLEH FCJ
ZALEHA YUSOF FCJ
ZABARIAH MOHD YUSUF FCJ
HARMINDAR SINGH DHALIWAL FCJ
RHODZARIAH BUJANG FCJ
[CIVIL APPEAL NO: 01(F)-38-12-2020(W)]
9 JUNE 2021
[2021] CLJ JT (8)
A Malaysian former High Officer of the Asian International Arbitration Centre (AIAC), established under the auspices of the Asian-African Legal Consultative Organisation (‘AALCO’), enjoys immunity from any civil or criminal suit or legal process in respect of acts and things that he had done previously in his capacity as the High Officer of the organisation, unless the Host Country Agreement – entered into between Malaysia and the AALCO – or the International Organisation (Privileges and Immunities) Act 1992 provide otherwise. The decision of the Attorney General to prefer the criminal charges against a former High Officer, despite being fully aware of the latter’s legal immunity status, was tainted with illegality and, as such, amenable to judicial review and ought to be quashed.
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CTEB & ANOR v. KETUA PENGARAH PENDAFTARAN NEGARA, MALAYSIA & ORS
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
ROHANA YUSUF PCA
NALLINI PATHMANATHAN FCJ
VERNON ONG LAM KIAT FCJ
ZABARIAH MOHD YUSOF FCJ
HASNAH MOHAMMED HASHIM FCJ
MARY LIM FCJ
[CIVIL APPEAL NO: 01(i)-34-10-2019(W)]
28 MAY 2021
[2021] CLJ JT (9)
Once art.14(1)(b) and s.1(b) of Part II of the Second Schedule of the Federal Constitution (FC) is read together with the interpretation provision in the FC, in particular s.17 of Part III of the Second Schedule in order to determine the qualifications necessary for the acquisition of citizenship by operation of law of an illegitimate child born out of the Federation, there is no necessity to adopt any other requirement to construe the provisions. Hence, the Legitimacy Act or any other law is therefore not to be read into the provisions as there is no mention made for the rights of citizenship in the Legitimacy Act and no corresponding provision in the FC that deems legitimisation confers the right to citizenship. The qualification of acquiring citizenship by operation of law must be met at birth. If the qualifications are not met, the court was not at liberty to add and subtract any other or qualifications which the FC states otherwise. There is no judicial supremacy articulated in the FC and the power to amend the Constitution rests solely with the Parliament. The court should not endeavour to achieve any fanciful meaning against the clear letter of the law.
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JILL IRELAND LAWRENCE BILL v. MENTERI BAGI KEMENTERIAN DALAM NEGERI MALAYSIA & ANOR
HIGH COURT MALAYA, KUALA LUMPUR
NOR BEE ARIFFIN J
[JUDICIAL REVIEW NO: R4(2)-25-256-2008]
17 MARCH 2021
[2021] CLJ JT (7)
The Ministry of Home Affairs, through a Directive issued in 1986, banned the use of the word, among others, 'Allah', in Christian publications, citing a threat to public order. However, upon analysis and scrutiny 35 years later, the Directive was discovered to be unreflective of and inconsistent with the Cabinet's policy decision. The Directive stood on its own without any statutory backing, rendering it illegal, unlawful and a nullity for want of jurisdiction. The Directive was devoid of any legal effect whatsoever from inception. It followed that the prohibition on the use of the word, among others, 'Allah', imposed by the Directive, could not be legally sustained. The Ministry of Home Affairs had exceeded its powers and such a prohibition was against art. 11 of the Federal Constitution.
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PEGUAM NEGARA MALAYSIA v. MKINI DOTCOM SDN BHD & ANOR
FEDERAL COURT, PUTRAJAYA
ROHANA YUSUF PCA
AZHAR MOHAMED CJ (MALAYA)
ABANG ISKANDAR CJ (SABAH & SARAWAK)
MOHD ZAWAWI SALLEH FCJ
NALLINI PATHMANATHAN FCJ
VERNON ONG LAM KIAT FCJ
ABDUL RAHMAN SEBLI FCJ
[CIVIL APPLICATION NO: 08(L)-4-06-2020(W)]
19 FEBRUARY 20
[2021] CLJ JT (6)
Section 114A of the Evidence Act 1950 provides for presumptions of facts in publication of contents on the internet to assist in identifying and in proving the identity of an anonymous person involved in the publication through the internet. This, however, does not mean that the prosecution need to prove the existence of the basic facts before invoking such presumption. The presumption is indeed rebuttable and rebuttal raised must be on the balance of probabilities. With the invocation of the presumptions, online portals/platforms that contain offensive comments could be held liable for facilitating the publication of such comments. In order to avoid liability, these online platforms/portals must have in place a system that is capable of detecting and rapidly remove offensive comments. Portals/platforms could not just wait to be alerted because such alert may never come. To accept such measures as a complete defence would be to unjustifiably and irresponsibly shift the entire blame on third party online subscribers while exonerating itself of all liabilities.
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IKI PUTRA MUBARRAK v. KERAJAAN NEGERI SELANGOR & ANOR
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
ROHANA YUSUF PCA
AZAHAR MOHAMED CJ (MALAYA)
ABANG ISKANDAR CJ (SABAH & SARAWAK)
MOHD ZAWAWI SALLEH FCJ
NALLINI PATHMANATHAN FCJ
VERNON ONG LAM KIAT FCJ
ZABARIAH MOHD YUSOF FCJ
HASNAH MOHAMMED HASHIM FCJ
[CASE NO: BKA-3-11-2019(W)]
25 FEBRUARY 2021
[2021] CLJ JT (5)
Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995, which criminalises unnatural sex, is in contravention of the State List in the Ninth Schedule of the Federal Constitution. The section, despite providing for the offences against the 'precepts of Islam', is limited by the preclusion clause contained in the State List, i.e., 'except in regard to matters included in the Federal List'. Criminal law being a federal matter, is exclusively for Parliament to enact; and is beyond the legislative competency of the State Legislature.
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ZSCHIMMER & SCHWARZ GMBH & CO KG CHEMISCHE FABRIKEN v. PERSONS UNKNOWN & ANOR
HIGH COURT MALAYA, KUALA LUMPUR
ONG CHEE KWAN JC
[SUIT NO: WA-22NCC-600-12-2020]
13 FEBRUARY 2021
[2021] CLJ JT (4)
A self-identification order, also known as a 'Spartacus' or 'I am Spartacus' order, compels persons unknown to identify himself/herself and to provide an address for service. The self-identification order would require placement of an advertisement in local newspapers of a notice against the person(s) unknown and this notice would alert the persons unknown of the order for them to self-identify within seven days of the advertisement, failing which, they risk committal proceedings.
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ROSLIZA IBRAHIM v. KERAJAAN NEGERI SELANGOR & ANOR
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
ROHANA YUSUF PCA
AZAHAR MOHAMED CJ (MALAYA)
NALLINI PATHMANATHAN FCJ
ABDUL RAHMAN SEBLI FCJ
ZABARIAH MOHD YUSOF FCJ
HASNAH MOHAMMED HASHIM FCJ
MARY LIM FCJ
RHODZARIAH BUJANG FCJ
[CIVIL APPEAL NO: 01(f)-2-01-2020(B)]
5 FEBRUARY 2021
[2021] CLJ JT (3)
The Syariah Court may only exercise jurisdiction over a person when it has over him both jurisdiction ratione personae, which is contingent on the person’s legal persona, and jurisdiction ratione materiae or subject matter jurisdiction. Absent these jurisdictions the Syariah Court is not empowered to exercise any power over a person and if exercised would be ultra vires the Federal Constitution (FC). This said, in cases where a person’s religious status of whether he is a Muslim or not is in dispute, a distinction needs be drawn between cases where one ‘no longer professes the religion of Islam’ and one who ‘never professes the religion of Islam’; only the former which refers to renunciation cases is justiciable before the Syariah Court; the latter, which necessarily engages the issue of one’s identity and legal status, must fall within the jurisdiction of the Civil Court. There is also a notable difference between the term ‘profess and practise’ and ‘profess’ as used in art. 11(1) of the FC and Item 1 of the State List of the FC respectively; ‘profess’ per se is a constitutional term that is justiciable before the Civil Court, whilst ‘profess and practise’ is a question of faith and dogma and falls within the jurisdiction of the Syariah Court by virtue of art. 121(1A) of the FC.
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DATUK SERI ANWAR IBRAHIM v. GOVERNMENT OF MALAYSIA & ANOR
FEDERAL COURT, PUTRAJAYA
ABDUL RAHMAN SEBLI FCJ; ZALEHA YUSOF FCJ; ZABARIAH MOHD YUSOF FCJ; HASNAH MOHAMMED HASHIM FCJ;
MARY LIM FCJ; HARMINDAR SINGH DHALIWAL FCJ; RHODZARIAH BUJANG FCJ
[CIVIL APPLICATION REVIEW NO: 08(RS)-1-03-2020(W)]
22 OCTOBER 2020
1. Breach of natural justice, whether under the bias or right to be heard rule, ought to be one of the matters to be included in the limited list for the court of last resort to exercise its jurisdiction to review its previous decision. Although it is not in all cases of such breach that the court may grant the exceptional course of reopening a proceeding already heard and decided, an aggrieved applicant may succeed if it is shown that the injustice caused is substantial and he is left with no effective alternative remedy. The court may of course also consider if the outcome would have been the same in any event if the applicant had been granted a full and fair hearing, in which case it may decline to review, it being an exercise in futility.
2. The majority decision of the earlier panel of this court in refusing to hear the applicant on the constitutionality of the National Security Council Act 2016, Acts A566, A584 and A885, and art. 66(4) and (4A) of the Federal Constitution on the grounds that the constitutional questions had become abstract, academic and hypothetical on account of the applicant's failure to show any real and genuine interest in the subject matter which had been adversely affected by the decision, and hence his locus standi, had breached the audi alteram partem rule and resulted in grave injustice to the applicant. The injustice which should be something outside the merits of the case was firmly established when the applicant was denied the notice and opportunity to answer the issues. He also had been left with no other remedy, as an order for re-hearing would be futile and filing any further proceedings thereon would be res judicata. The court, further, was in no position to decide at this point if the outcome would have been the same if the applicant had been heard on the issue. The issue in relation to locus standi having merited serious consideration could not be dismissed offhand, thus, reopening the matter was warranted and it would not have been an exercise in futility.
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ARTICLE HIGHLIGHT
U.S. tire maker Goodyear loses dispute against foreign workers in Malaysia
Employment
Goodyear ordered to settle wages owed to migrant workers
Malaysia’s Industrial Court has ruled in favor of dozens of migrant workers in a labor dispute against American tire manufacturer Goodyear Tire & Rubber Co (GT.O), court documents showed on Thursday, amid accusations of unpaid wages and employee mistreatment at the firm’s Malaysian factory.
A total of 184 migrant workers had filed five complaints against Goodyear Malaysia in 2019 and 2020 over non-compliance with a collective labor agreement, and are claiming about 5 million ringgit ($1.21 million) in unpaid wages. read more
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Man spotted in pub during sick leave was unfairly dismissed
UK
Employment
Driver was illegally terminated
A man dismissed from his job after being spotted drinking and smoking in a social club while on sick leave was unfairly dismissed, an employment tribunal has found.
Colin Kane, 66, worked as a driver for a surfacing company, Debmat, in Ryton, Newcastle upon Tyne. The company employs about 150 people and does not have a dedicated HR department.
Kane had suffered from chronic obstructive pulmonary disease (COPD) for several years and had periods of absence due to ill-health.
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CJI Ramana launches new SC mobile app; ‘Indicative Notes’ on landmark judgements on its website
India
Chief Justice of India (CJI) NV Ramana Wednesday launched a special facility for granting media access to the Supreme Court’s new mobile application even as he announced that the apex court’s website would have a new feature, called “Indicative Notes” that would aim to provide concise summaries of landmark judgments in an easy-to-understand format. This will, he said, serve as a useful resource for media persons and the general public who wish to be better informed about the rulings of the court.
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Workers' watchdog could ban sweat-shop clothes
UK
Employment
New workers' watchdog will provide guidance to businesses on best practice
The new body will be responsible for tackling modern slavery, enforcing the minimum wage and protecting agency workers.
Currently these tasks are spread across three different bodies.
It said it was looking at extra curbs targeting the garment sector including banning sales if brands' behaviour does not improve.
The government is looking at these specific measures after reports of serious problems in the industry, the Department for Business, Energy and Industrial Strategy said.
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In a landmark judgment, the Federal Court found the environment minister has a duty of care to young people
Australia
This morning, the Australian Federal Court delivered a landmark judgement on climate change, marking an important moment in our history.
The class action case was brought on behalf of all Australian children and teenagers, against Environment Minister Sussan Ley.
Their aim was to prevent Ley from possibly approving the Whitehaven coal mine extension project, near Gunnedah in New South Wales. They argued that approving this project would endanger their future because of climate hazards, including causing them injury, ill health or death, and economic losses.
The court dismissed the application to stop the minister from approving the extension. But that’s just the beginning.
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