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MALAYSIA
Employment
Forced labour affects nation’s economy, equity market
Concerns over labor abuse in Malaysia, long present in the Southeast Asian country, have escalated in the past three months, continuing to spread beyond the palm oil industry to other parts of the economy.
It’s a problem with many implications, first and foremost for the workers themselves, many of whom live in squalid conditions. It also has the potential to threaten the country’s output by stifling direct investment and killing supply contracts.
But a third fallout is in the world of investing, where more and more of the biggest money managers say it’s giving them second thoughts. As labor abuse claims emerged at a supplier to vacuum-cleaner giant Dyson and the glovemaker Supermax Corp., it’s also weighing on the country’s stock market and hurting its people’s pension investments.
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CASE(S) HIGHLIGHT
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DATO' SRI MOHD NAJIB HJ ABD RAZAK v. PP
COURT OF APPEAL, PUTRAJAYA
AB KARIM AB JALIL JCA
HAS ZANAH MEHAT JCA
VAZEER ALAM MYDIN MEERA JCA
[CRIMINAL APPEAL NO: W-05(SH)-(231-233)-07-2020]
8 DECEMBER 2021
[2021] CLJ JT (18)In a charge against a public officer for 'using his office or position for gratification' under s. 23(1) of the Malaysian Anti-Corruption Commission Act 2009, there is no duty on the part of the prosecution to prove the nature of the 'interest' that such an officer may have in the impugned action or decision forming the subject matter of the charge. 'Interest' is not an integral part of the offence under s. 23(1); not until the prosecution has decided to rely on and invoke the presumption in s. 23(2) of the Act. The word 'interest' has not been statutorily defined; notwithstanding, specifically for the latter scenario, once an interest that has gone beyond the accused's public office has been proved, the accused is caught by the ambit of s. 23(1) and is presumed in law to have committed the offence under s. 23(2) of the Act.
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AJS v. JMH & ANOTHER APPEAL
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
MOHD ZAWAWI SALLEH FCJ
NALLINI PATHMANATHAN FCJ
[CIVIL APPEAL NOS: 02(i)-77-11-2020(W) & 02(i)-82-12-2020(W)]
1 DECEMBER 2021
[2021] CLJ JT (17)Given the clear wordings of s. 3(3) of the Law Reform (Marriage and Divorce) Act 1976 ('LRA') and the plain meaning of word 'or', the LRA is not applicable to a Muslim. The LRA does not merely govern monogamous marriages registered under the LRA, but more than that, it is a personal law for non-Muslims. Muslims have a different set of personal laws. If one is to read s. 3(3) only in respect of marriage and divorce, without regard to art. 121(1A) of the Federal Constitution read with art. 8(5)(a) of the same, the clear demarcation between the personal laws of Muslims and non-Muslims in Malaysia will be in a state of disarray.
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CCH & ANOR v. PENDAFTAR BESAR BAGI KELAHIRAN DAN KEMATIAN, MALAYSIA
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
NALLINI PATHMANATHAN FCJ
MARY LIM FCJ
HARMINDAR SINGH DHALIWAL FCJ
RHODZARIAH BUJANG FCJ [CIVIL APPEAL NO: 01(f)-35-11-2020(W)]
19 NOVEMBER 2021
[2021] CLJ JT (16)Fundamental rights and provisions must be construed as broadly as possible while provisions which limit those rights must be construed as narrowly as possible. The broadest possible interpretation of the word 'found exposed' in s. 19B of Part III of the Second Schedule of the Federal Constitution ('FC') is to accord it a meaning to include a child abandoned at the place of birth by the birth mother whose identity is unknown. The word 'exposed' must encompass the plight of abandoned new born children. Once it is shown that a new born child is 'found exposed', or abandoned, (i) the child is presumed to have been born to a mother who was permanently resident at the place where the finding was made; and (ii) the date of the finding is taken as the date of the birth. Therefore, a child born at a hospital in Malaysia and later abandoned by his/her birth mother is presumed to be born to a mother permanently resident in the Federation. The child then fulfils the requirement of s. 1(a) of Part II read together with s. 19B of Part III of the Second Schedule of the FC, and is therefore entitled to citizenship by operation of law.
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HOBALAN N VELLO v. PP
HIGH COURT SABAH & SARAWAK, KOTA KINABALU
AMELATI PARNELL JC
[CRIMINAL CASE NO: BKI-45B-4-7-2021]
22 OCTOBER 2021
[2021] CLJ JT (15)In allowing bail in a non-bailable offence under s. 302 of the Penal Code, for which the accused was charged, the court revisited the case of PP v. Dato' Balwant Singh, wherein the court stated, inter alia, that the seriousness of the offence could not be the dominant factor; the court ought to also consider the health condition of the accused person.
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ENTIRAN DURASAMY & OTHER APPLICATIONS v. PP
HIGH COURT MALAYA, IPOH
SU TIANG JOO JC
[CRIMINAL APPLICATION NOS: AA-44-19-04-2021, AA-44-20-04-2021,
AA-44-21-04-2021, AA-44-22-04-2021, AA-44-28-05-2020, AA-44-30-05-2020,
AA-44-31-05-2020 & AA-44-36-06-2020]
2 NOVEMBER 2021
[2021] CLJ JT (14)The blanket denial of the right to be considered for bail for male offenders under the Security Offences (Special Measures) Act 2012 as adverted to by its s. 13(2)(b) is discriminatory of men. Such a blanket exception in favour of women is also devoid of any rationale or reasonable classification or differentiation and violates the equality provision of art. 8 Federal Constitution. Whilst SOSMA is a valid law and remains valid notwithstanding that it may offend arts. 5, 9, 10, 13 of the FC, it cannot offend or be inconsistent with art. 8. It follows that the word ‘women’ in s. 13(2)(b) must be defined as including ‘men’. It follows further that the applicants for bail herein, being men charged with a security offence under SOSMA, are entitled to be considered for bail.
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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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PP v. MOHAMMAD FADIL HANAPI MD SAHIDEK
HIGH COURT MALAYA, MUAR
AWG ARMADAJAYA AWG MAHMUD JC
[APPLICATION FOR REVISION NO: JB-43-3-08-2021]
14 OCTOBER 2021
A Magistrate or Sessions Judge, in proceeding to hear a criminal trial which has been partly heard, has a complete discretion under s. 261 of the Criminal Procedure Code to either hear the case de novo or continue from the point where it has been left by his predecessor, albeit that the discretion must be properly and reasonably exercised. Where, however, a trial under s. 376(1) Penal Code has been fully heard by a previous Sessions Judge except for the parties' submissions at the end of the defence case, as happened here, it might not be proper nor advisable for the succeeding Sessions Judge to have ordered a de novo trial, considering the multiple adverse repercussions that such a new trial would entail and the fact that the court could always view the full video recording of the trial if needs be; more so when no reason was given for the order, as the absence of reason may always attract the inference that the discretion has been wantonly or callously exercised.
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"In our view, it is settled law based on the authorities cited to us by learned counsel for the appellant in his submission that the prosecution has discretion whether to call any particular witness, but such discretion is subject to two limitations, viz (i) the discretion must be exercised with due regard to considerations of fairness and good faith; and (ii) the witnesses who had been investigated by the police and from whom the statements have been recorded must be offered to the defence." – per Mohd Zawawi Salleh FCJ in Rosli Yusof v. PP [2021] 9 CLJ 681
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ARTICLE HIGHLIGHT
INVESTING TITANS CAN NO LONGER IGNORE MALAYSIA’S LABOR ABUSES
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8 JOBS THAT COULD VANISH IN THE NEXT COUPLE OF DECADES
Employment
Technology and automation are increasingly performing tasks previously carried out by humans
Research by Oxford University shows that 47% of the jobs today could disappear in the next 10 years, with some of them being completely automated or at least upgraded to a point where only a fraction of the workforce is needed. If you’re currently working in any of the following industries, it might be a good idea to consider your long-term plans. Here are eight occupations that could disappear within the next 10 years, give or take another decade.
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FOCUS ON HEALTHY, HAPPY WORKFORCE
Employment
The blurred lines between work and personal hours often cause unnecessary stress and burnouts
The Covid-19 pandemic has taught us, other than the obvious healthcare preparedness and the importance of research and development (R&D) in health, how we view work. In 2008, Bank Negara Malaysia posited that the country's workforce was overworked and underpaid compared with our regional peers. This is not surprising. Many entry- and mid-level workers deemed so too, but there is a perception gap for high-level executives who think, of course, that their organisations could be more productive. Productivity is the mantra. Churn out more and work, to feed the consumerism beast who seem to always hunger for more. We work more so we can afford to consume more, so that is expected right?
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'HYBRID WORKING MODEL IS THE BEST, SAFEST'
Employment
Despite increasing calls from employees to resume working from the office, employers and public health experts believe for now a hybrid model is the safest working arrangement
Despite increasing calls from employees to resume working from the office, employers and public health experts believe for now a hybrid model is the safest working arrangement. Maukerja chief executive officer Ray Teng said companies must be flexible to adapt to the ever-changing Covid-19 situation in the country. "A hybrid model, where staff work from office by rotation, is still the best arrangement. With the emergence of the new Omicron variant, it is not safe yet for employees to return to offices at full capacity. "When people work from home for a long time, they are still efficient but at the expense of their personal development and mental health.
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THE 10 MOST IMPORTANT EMPLOYMENT LAW CASES IN 2021
UK
Employment
Year’s 10 most important judgmentsDespite the coronavirus pandemic, HR professionals have had their fair share of employment law rulings to keep track of in 2021. We count down the 10 most important judgments of the year that every employer should know about.
JUDICIAL QUOTES
