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CASE(S) HIGHLIGHT
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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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CRYSTAL CROWN HOTEL & RESORT SDN BHD (CRYSTAL CROWN HOTEL PETALING JAYA) v. KESATUAN KEBANGSAAN PEKERJA-PEKERJA HOTEL, BAR & RESTORAN SEMENANJUNG MALAYSIA
FEDERAL COURT, PUTRAJAYA
NALLINI PATHMANATHAN FCJ; ABDUL RAHMAN SEBLI FCJ; MARY LIM FCJ
[CIVIL APPEAL NO: 02(f)-4-01-2018]
24 MARCH 2021
Under the National Wages Council Consultative Act 2011 and its subsidiary legislation, Minimum Wages Order(s) from 2012-2020, hoteliers are not entitled to utilise part or all of the employees' service charge to satisfy their statutory obligations to pay the minimum wage. Neither could the service charge be incorporated into a clean wage or utilised to top up the minimum wage. Service charge, being monies collected from third parties, does not belong to the hotel. When paid by a customer as part of the bill, ownership of those monies does not vest in, or transfer to the hotel. The hotel is holding the monies in trust for eligible employees to be distributed on a specific date as provided for in their contracts. Since the monies do not belong to the hotel, the hotel cannot utilise the service charge to meet the statutory obligation for minimum wage. To allow otherwise would be amounting to ask the employees to "pay themselves from their own monies".
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ARTICLE HIGHLIGHT
Protect workers with safe, healthy work environment
MALAYSIA
Employment
With almost 151 million
cases globally, the Covid-19 pandemic has had an immeasurable impact on
our world, resulting in far-reaching health, social and economic
consequences, disrupting the lives and livelihoods of people all over
the world. Covid-19 has disclosed many vulnerabilities. It has
had an especially profound impact on the world of work with high
infection rates in some settings leading to closure of manufacturing
industries, construction sites and entire service industries.Migrant workers, who make significant contributions to economies and many of whom are in the front lines, have been disproportionally affected by Covid-19.
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Case launched against TikTok over collection of children’s data
Data protection
Ex-commissioner alleges TikTok app breaching children's data protection law
A former children’s commissioner for England has launched a “landmark case” against the video-sharing app TikTok, alleging that it illegally collects the personal information of its child users.
Anne Longfield, who held the commissioner post between March 2015 and February this year, has lodged a claim in the high court on behalf of millions of children in the UK and the European Economic Area who have used TikTok since 25 March 2018.
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Bus driver sacked after knocking cyclist off bike loses unfair dismissal claim
UK
Employment
Employer's decision to sack bus driver reasonable in light of 'dangerous and unacceptable' behavior
A bus driver who was fired after for hitting a cyclist was not unfairly dismissed, a tribunal has found.
An Edinburgh employment tribunal ruled that the decision by Lothian Buses to dismiss Mr Sam Beech, who had worked at the company for 11 years until his dismissal on 27 September 2019, was not “too harsh”.
Despite raising some concerns over the investigation of the incident by the operator, the tribunal said Lothian Buses had “a genuine belief’ that Beech had acted in a “dangerous and unsafe manner” and that, given the nature of his job, the decision to dismiss was “reasonable”.
On 21 September 2019, Beech was pulling out of a bus stop when a cyclist “banged” the outside wing mirror of the vehicle, prompting Beech to sound his horn.
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Childcare worker sacked for refusing flu shot
AUSTRALIA
Employment
Worker who refused flu vaccine loses unfair dismissal appeal
A childcare worker sacked for refusing to get a flu jab lost an appeal yesterday with the Fair Work Commission to get her job back.
Bou-Jamie Barber claimed she had received unfair dismissal when she was fired in August last year for refusing to get the vaccine.
Industrial relations and employment lawyer Ellie Bassingthwaighte told Neil Breen the ruling will inform other employers with vulnerable workforces considering implementing such a policy.
“Importantly, it’s going to depend on three factors: firstly, the industry and the workplace in which you’re operating, the type of vaccine, … and it’s also going to depend on the individual.”
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Office manager denied remote working because boss ‘knew what was best for her’ awarded £60k at tribunal
UK
Employment
Manager forbidden to work remotely from son's hospital bedside was discriminated against
An office manager was discriminated against after she was told she was not allowed to work remotely from her son’s hospital bedside as he underwent treatment for cancer, a tribunal has ruled.
The Leeds employment tribunal found that Lorraine Hodgson, who worked for Martin Design Associates until her resignation in July 2019, was directly discriminated against on the grounds of sex and was constructively unfairly dismissed after her boss denied her remote working request in part because of “his belief that he knew best for the claimant”.
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