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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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ZAIDI KANAPIAH v. ASP KHAIRUL FAIROZ RODZUAN & ORS AND OTHER APPEALS
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; VERNON ONG LAM KIAT FCJ; ZALEHA YUSOF FCJ; HASNAH MOHAMMED HASHIM FCJ; RHODZARIAH BUJANG FCJ
[CRIMINAL APPEAL NOS: 05(HC)-153-11-2020(W), 05(HC)-155-11-2020(W) & 05(HC)-156-11-2020(W)]
27 APRIL 2021
The Prevention of Crime Act 1953 (POCA) and its s. 4 was legitimately birthed and is not unconstitutional as it is within the province of the Legislature in accordance with the powers granted under art. 149 of the Federal Constitution (FC) to enact the Act and the section to address the mischief of national security. This said, any challenge to the constitutionality of s. 4 , and any challenge to the legality of a remand order issued under s. 4(1)(a) thereof by the Magistrate on the grounds that s. 4 is inconsistent with art. 121 of the FC must be based on the existing art. 121, and not on its pre-amendment (Act A704) provision. To interpret a law based on a provision that no longer reflects the position of the existing law is misconceived and defies the canons of construction and legal logic. Similarly, the argument that s. 4 is unconstitutional because it draws away the Magistrate's discretion and compels him to act upon the dictate of the Executive, and therefore violates the concept of separation of power which forms the basic structure of the Constitution, is also misconceived. The basic structure doctrine has no place in Malaysia, and in any case, in view of art. 149 of the FC, the constitutionality of s. 4 must be tested against the provisions of the FC itself and no other.
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ARTICLE HIGHLIGHT
U.S. tire maker Goodyear loses dispute against foreign workers in Malaysia
Employment
Goodyear ordered to settle wages owed to migrant workers
Malaysia’s Industrial Court has ruled in favor of dozens of migrant workers in a labor dispute against American tire manufacturer Goodyear Tire & Rubber Co (GT.O), court documents showed on Thursday, amid accusations of unpaid wages and employee mistreatment at the firm’s Malaysian factory.
A total of 184 migrant workers had filed five complaints against Goodyear Malaysia in 2019 and 2020 over non-compliance with a collective labor agreement, and are claiming about 5 million ringgit ($1.21 million) in unpaid wages. read more
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Man spotted in pub during sick leave was unfairly dismissed
UK
Employment
Driver was illegally terminated
A man dismissed from his job after being spotted drinking and smoking in a social club while on sick leave was unfairly dismissed, an employment tribunal has found.
Colin Kane, 66, worked as a driver for a surfacing company, Debmat, in Ryton, Newcastle upon Tyne. The company employs about 150 people and does not have a dedicated HR department.
Kane had suffered from chronic obstructive pulmonary disease (COPD) for several years and had periods of absence due to ill-health.
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CJI Ramana launches new SC mobile app; ‘Indicative Notes’ on landmark judgements on its website
India
Chief Justice of India (CJI) NV Ramana Wednesday launched a special facility for granting media access to the Supreme Court’s new mobile application even as he announced that the apex court’s website would have a new feature, called “Indicative Notes” that would aim to provide concise summaries of landmark judgments in an easy-to-understand format. This will, he said, serve as a useful resource for media persons and the general public who wish to be better informed about the rulings of the court.
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Workers' watchdog could ban sweat-shop clothes
UK
Employment
New workers' watchdog will provide guidance to businesses on best practice
The new body will be responsible for tackling modern slavery, enforcing the minimum wage and protecting agency workers.
Currently these tasks are spread across three different bodies.
It said it was looking at extra curbs targeting the garment sector including banning sales if brands' behaviour does not improve.
The government is looking at these specific measures after reports of serious problems in the industry, the Department for Business, Energy and Industrial Strategy said.
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In a landmark judgment, the Federal Court found the environment minister has a duty of care to young people
Australia
This morning, the Australian Federal Court delivered a landmark judgement on climate change, marking an important moment in our history.
The class action case was brought on behalf of all Australian children and teenagers, against Environment Minister Sussan Ley.
Their aim was to prevent Ley from possibly approving the Whitehaven coal mine extension project, near Gunnedah in New South Wales. They argued that approving this project would endanger their future because of climate hazards, including causing them injury, ill health or death, and economic losses.
The court dismissed the application to stop the minister from approving the extension. But that’s just the beginning.
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