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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. KERAJAAN MALAYSIA & ANOR
FEDERAL COURT, PUTRAJAYA
VERNON ONG LAM KIAT FCJ; ZALEHA YUSOF FCJ; ZABARIAH MOHD YUSOF FCJ;
HASNAH MOHAMMED HASHIM FCJ; MARY LIM FCJ; HARMINDAR SINGH DHALIWAL FCJ; RHODZARIAH BUJANG FCJ
[CIVIL APPEAL NO: 06(RS)-1-03-2019(W)]
06 AUGUST 2021
1. The courts, the apex court especially, must not be turned into an answering post or a debating club or an advisory bureau or made obliged to answer questions when there is no dispute or lis involved, and should certainly not be called upon to answer questions which are abstract, academic or hypothetical.
2. The argument that the National Security Council Act 2016 (NSCA) was unconstitutional as its founding law, namely the Constitution (Amendment) Act 1983, the Constitution (Amendment) Act 1984 and the Constitution (Amendment) Act 1994 were unconstitutional for having removed the royal assent and violated the basic structure doctrine, and for further being inconsistent with art. 149 of the Federal Constitution, is bereft of any constitutional thrust or merit. Sections 12, 2 and 8 respectively of these amending Acts do not at all serve to remove royal assent, as a bill must still be presented to the King under art. 66(4) of the Federal Constitution for the purpose of royal assent. The Acts, in short, only sought to expedite the passing of laws and clarify and define the procedure involving the Yang di-Pertuan Agong in the law-making process. The trigger point in art. 149 cannot also be possibly satisfied as the NSCA was never meant to be enacted under that Article. Article 149 was meant to curb prescribed activities undertaken by 'a substantial body of persons' whereas the NSCA is much wider than that; the NSCA seeks to also cover other matters such as disasters and infectious diseases which undeniably could affect national security.
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ARTICLE HIGHLIGHT
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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Singapore's new Covid-19 workplace rules challenging, say business leaders
Employment
Some business leaders said that the rules could be disruptive, particularly in the face of a manpower crunch.
Business leaders have expressed concerns over the new Covid-19 workplace management rules which, they say, could impact operations if fresh infections force their staff to work from home.
Some said that the rules could be disruptive, particularly in the face of a manpower crunch.
On Tuesday, the Ministry of Manpower issued an updated advisory on workplace management to curb the spread of Covid-19. Under the new guidelines, companies must implement a snap 14-day work-from-home (WFH) regimen if an employee tests positive for Covid-19 and was at the workplace in the last seven days. There will also be regular testing for staff who work onsite.
While these new measures are needed to stem the rise of community cases, they will also take a toll on businesses, experts said.
Singapore National Employers' Federation executive director Sim Gim Guan said: "The need to implement a snap 14-day WFH arrangement can be quite challenging because that is going to require a lot of communication, and could also be disruptive. So, companies and employees alike need to be a lot more agile and resilient."
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THAT HOME OFFICE MIGHT BE HERE TO STAY: WORKERS ARE FLEXING THEIR PANDEMIC-ERA RIGHT TO FLEXIBILITY
Employment
"Any attempt to ... be rigid with where people work or how they work, that’s actually a hindrance to continue to retain talent,” said one HR expert.
After what could be two full years of working at home, there is a growing disconnect between employees reluctant to return to their desks and executives pushing to get them back — and that is exacerbating the challenges businesses are having attracting and keeping people in a white-hot labor market.
While many companies are offering greater flexibility to compete for scarce talent, some HR experts worry this could lay the groundwork for retention problems in the future.
“It’s a complicated problem, and it’s something companies are coming to terms with as this Covid crisis extends further and further,” said Andrew Challenger, vice president at the executive outplacement firm Challenger, Gray & Christmas. “For the most part of the last year, companies were saying we just have to get through this and it's going to be back to normal. And now that this feels endemic, they're saying if this is for the long haul, they have to think about what their company’s going to look like as a remote workforce.”
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