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  • CASE(S) HIGHLIGHT

  • 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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  • PJD REGENCY SDN BHD v. TRIBUNAL TUNTUTAN PEMBELI RUMAH & ANOR AND OTHER APPEALS
    FEDERAL COURT, PUTRAJAYA
    TENGKU MAIMUN TUAN MAT CJ; NALLINI PATHMANATHAN FCJ; ABDUL RAHMAN SEBLI FCJ;
    ZABARIAH MOHD YUSOF FCJ; MARY LIM FCJ
    [APPEALS NO: 01(f)-29-10-2019(W), 01(f)-30-10-2019(W), 01(i)-40-12-2019(M),
    01(f)-41-12-2019(M), 01(f)-42-12-2019(M), 01(f)-4-02-2020(W), 01(f)-31-10-2020(W)]
    19 JANUARY 2021
    [2021] CLJ (JT1)

    (1) Where a housing developer fails to deliver vacant possession within the time stipulated in the statutory sale and purchase agreement, the calculation of the liquidated ascertained damages ('LAD') begins from the date of payment of the booking fee and not from the date of the statutory agreement. This is further clarified and cemented by the nature of the Housing Development (Control and Licensing) Act 1966 and Housing Development (Control and Licensing) Regulations 1989 being social legislations. In interpreting a social legislation, the court must give effect to the intention of Parliament and not the intention of parties. Otherwise, the attempt by the legislature to level the playing field by mitigating the inequality of bargaining power would be rendered nugatory and illusory.

    (2) While housing developers might think that it is a standard commercial practice to accept booking fees, the development of the law clearly suggests to the contrary. Where the developers act in contravention of the law, they have to accept the resulting consequences. The court would not countenance the by passing of statutory safeguards meant to protect the purchasers.

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  • JUDICIAL QUOTES

  • “The next pertinent consideration is the intention of Parliament in enacting the provision of ss. 39B(2) and 39B(2A) of the DDA 1952. In this regard, the Hansard can be used to assist in interpreting the intention of Parliament. In relation to this, the Hansard of 30 November 2017 is relevant. The Minister's explanation clearly revealed the intention of Parliament, in that the condition in para. (d) of s. 39B(2A) must be satisfied before the discretion to impose the sentence of life imprisonment under s. 39B(2) can be invoked. It is a mandatory requirement. Thus, paras. (a), (b) or (c) of s. 39B(2A) are to be read disjunctively and each of the paragraphs is to be read conjunctively with para. (d).”

    “In this regard, the purposive approach must be taken in interpreting s. 39B(2A) to ensure the intention of the Legislature is carried out and this is also in consonance with s. 17A of the Interpretation Acts 1948 and 1967.”

    “The other important feature of s. 39B(2A) is the usage of the word 'only' before paras. (a), (b), (c) and (d). Therefore, the power of the court to impose the sentence of imprisonment for life and whipping of not less than fifteen strokes is to be exercised only with regard to the circumstances specified in these paragraphs and not in any other circumstances.” – per Nordin Hassan JCA in Mohd Saifuddin Ab Rahman v. PP & Another Appeal [2021] 1 CLJ 343




  • ARTICLE HIGHLIGHT

    Fair Work Commission gives go ahead for vaccine refusal case

    AUSTRALIA
    Employment

    Case involving worker who declined flu shot could become landmark battle
    An aged care worker who was placed on unpaid leave, and later considered to be terminated, after she refused to get vaccinated may now file her unfair dismissal complaint, the Fair Work Commission ruled. The case involving an Ozcare employee who declined the influenza vaccine is expected to become a landmark battle, at a time when companies in Australia are closely considering their options for mandatory staff vaccinations against the other highly contagious disease COVID-19.

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  • UK Top Court Gives Uber Drivers Benefits in Landmark Ruling

    UK
    Employment

    SC: Uber drivers are 'workers' and not self-employed
    Uber drivers in Britain are entitled to benefits like paid holidays and minimum wage, the country’s top court ruled Friday, in a decision that threatens the company’s business model and holds broad implications for the gig economy. The ruling that the drivers should be classed as “workers” and not self-employed is a big defeat for the ride-hailing giant. And it could inspire similar legal action against other companies who rely on gig workers as well as influence courts in other countries grappling with the issue, experts said.

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  • BBC fined £28,000 for contempt after recording and broadcasting clip of court hearing on Microsoft Teams

    UK
    Media

    BBC fined £28k for airing footage from virtual HC hearing
    The BBC has been fined £28,000 for contempt of court after “a catalogue of serious errors” resulted in the recording and broadcasting of a clip from a virtual hearing to half a million people. In November 2020, regional TV news programme BBC South East Today used a “scene-setting” clip of a judicial review hearing into a controversial decision to grant planning permission to a “fracking” site in Horse Hill, Surrey.

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  • Employee who took cannabis for back pain unfairly dismissed

    UK
    Employment

    Employee prescribed opiates and morphine for medical reasons was unfairly dismissed
    A recycling employee who failed a drugs test was unfairly dismissed, with an employment tribunal finding that his employer did not take into account his ‘unblemished’ service and his medical reasons for taking cannabis. Mr Pamment had worked at Renewi UK Services for 14 years before he was dismissed on 1 April 2020, following a random drugs test that showed he was over the limit for cannabis, opiates and morphine.

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  • Doctor sacked for 'setting patient on fire' wins compensation over racial discrimination

    UK 
    Employment 
    Surgeon sacked after accidentally setting patient on fire awarded compensation
    A British doctor, who was sacked for allegedly setting a patient on fire during a surgery, was awarded about Dh330,00 in a race and unfair dismissal claim. Surgeon wins Dh330,00 for unfair dismissal and racial abuse. A British doctor, who was sacked for allegedly setting a patient on fire during a surgery, was awarded about Dh330,00 in a race and unfair dismissal claim. Doctor Obi Iwuchukwu, who is originally from Nigeria and a breast specialist, was suspended after conducting an operation, according to a report in Mail Online. The surgeon had used alcoholic antiseptic which ignited as he was using a heated surgical tool to sterilise the patient’s wounds during the medical procedure.

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LATEST MALAYSIAN ACTS

LATEST MALAYSIAN BILLS

LEGISLATION ALERT

  • Latest Updated (24 February 2021)
  • PU(A) 361/2019
    Malaysian Palm Oil Board (Cess) Order 2019
  • Latest Revoked (24 February 2021)
  • PU(A) 59/2021
    Malaysian Palm Oil Board (Cess) (Amendment) Order 2021



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