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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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MASENANG SDN BHD v. SABANILAM ENTERPRISE SDN BHD
FEDERAL COURT, PUTRAJAYA
NALLINI PATHMANATHAN FCJ; VERNON ONG LAM KIAT FCJ; RHODZARIAH BUJANG FCJ
[CIVIL APPEAL NO: 02(i)-20-03-2020(S)]
03 SEPTEMBER 2021
The exclusive supervisory jurisdiction of a domestic arbitration is to be ascertained from the juridical seat of the arbitration. The court at the seat enjoys exclusive supervisory jurisdiction over the arbitral proceedings and the award. The court where the cause of action arose cannot oust the jurisdiction afforded and vested in the seat court. Accordingly, any decision from the court purporting to exercise jurisdiction where the cause of action arose is void.
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ARTICLE HIGHLIGHT
Ex-AG to have his day in court next April
Employment
Trial of former A-G’s suit on ‘unlawful sacking’ and breach of contract fixed for April 2022
The High Court has fixed a four-day trial from April 18 next year on the “unlawful sacking” and breach of contract suit filed by former attorney-general Mohamed Apandi Ali against the government.
Lawyer Abdul Shukor Ahmad said the trial was inevitable as the government was not amenable to a mediation to settle the matter out of court.
“Dates have been fixed today for the trial to proceed,” he told FMT after virtual case management before deputy registrar Nor Shahadah Saari.
The court also instructed all parties to file their bundle of documents and identify the list of witnesses before the next case management on Nov 5.
Apandi filed the suit last September, seeking a declaration that former prime minister Dr Mahathir Mohamad’s termination of his services as attorney-general in 2018 was unlawful.
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A Fair Work Commission ruling on the flu jab reveals the divide on vaccine mandates
Employment
Receptionist sacked for refusing flu shot cannot appeal dismissal
A deputy president of the Fair Work Commission (FWC) has railed against mandatory vaccinations in an extraordinary dissenting judgment, labelling such a decree for employees akin to "medical apartheid". The comments from deputy president Lyndall Dean reveal the divide seen across the community on mandating vaccines.
The judgement related to a woman who was sacked from her job as a receptionist at a nursing home on the New South Wales south coast, after she had refused to get a flu shot last year when it was made mandatory by the New South Wales government.
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Trader sues UBS over stress induced mental health issues
UK
Employment
UBS trader sues employer for ‘toxic’ London work environment and ‘punishing workload’
A UBS Group trader is suing his employer claiming the “toxic” London work environment and “punishing workload” caused his mental health to deteriorate.
Simon Rope, who has been unable to work since suffering a breakdown in 2018, is claiming upwards of £200,000 for negligence over an anxiety disorder which was caused by “the stress to which he was subjected in” the London office according to his lawyers.
Documents filed at the High Court in February say that Rope’s stress symptoms first developed in 2016. By 2018 he was suffering from exhaustion after he was made responsible for trading around 3,500 different stocks along with three colleagues – a high workload for such a small team.
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Teacher unfairly dismissed after ‘locking’ pupil in ‘haunted’ cupboard
UK
Employment
Teacher whose pupil lied about punishment wins claim for unfair dismissal
A Blackburn teacher has won his employment tribunal claim for wrongful and unfair dismissal after a pupil lied about being locked in a cupboard as punishment for unruly behaviour.
In January 2020 Mr Basit was teaching maths to a Year 9 class at Pleckgate High School when he asked “pupil A”, who was disengaged and appeared to be dozing, to stand at the back of the classroom.
There was a large cupboard at the back and Basit made a comment to pupil A, a boy with hundreds of behaviour complaints against him and who enjoyed playing the “class clown”, which resulted in pupil A getting into the cupboard. He exited it a short time later.
Unbeknown to Basit, pupil A and two others then made a complaint to the headteacher. Pupil B said Basit had forced A into the cupboard and statements were taken separately from each pupil. The three statements alleged a number of potentially unprofessional incidents, including Basit throwing a book, in class against the claimant relating to the afternoon in question and other occasions.
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Coronavirus: Cathay Pacific fires 'small number' of aircrew for not getting Covid-19 jabs
Employment
Airline had earlier started disciplinary proceedings against flight attendants and pilots who had refused to get vaccinated
Cathay Pacific
has fired a “small number” of aircrew for failing to get Covid-19 jabs without a valid medical reason, following through on an ultimatum to review the employment of pilots and flight attendants still unvaccinated by August 31.
“Today we decided to part company with a small number of aircrew who had decided not to receive either of the two available Covid-19 vaccines
and had not provided proof of medical exemption,” Hong Kong’s largest airline said in a statement on Wednesday.
The carrier did not disclose the number of staff involved.
The coronavirus pandemic had a huge impact on operations, and global border controls had dramatically reduced the company’s ability to operate with unvaccinated aircrew, it noted.
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