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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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ROVIN JOTY KODEESWARAN v. LEMBAGA PENCEGAHAN JENAYAH & ORS AND OTHER APPEALS
FEDERAL COURT, PUTRAJAYA
ABANG ISKANDAR CJ (SABAH AND SARAWAK); NALLINI PATHMANATHAN FCJ; VERNON ONG LAM KIAT FCJ;
ZABARIAH MOHD YUSOF FCJ; HASNAH MOHAMMED HASHIM FCJ
[CRIMINAL APPEALS NO: 05(HC)-304-12-2019(B), 05(HC)-308-12-2019(B), 05(HC)-303-12-2019(B),05(HC)-305-12-2019(B),
05(HC)-307-12-2019(B) & 05(HC)-7-01-2020(W)]
26 FEBRUARY 2021
In a challenge against the constitutionality of s. 15B of the Prevention of Crime Act 1959 ('POCA') ie the ouster clause which stipulates that the courts are precluded from judicially reviewing and scrutinising the decision of the Prevention of Crime Board ordering the appellants to be detained under s. 19A(1) of the POCA, Parliament did not encroach into the judicial powers of the court by limiting judicial review to procedural non-compliance by virtue of the said s. 15B as it was within their power to do so. Parliament has the legislative power to enact federal law in relation to preventive detention under art. 149 of the Federal Constitution (FC). Section 15B of the POCA is a federal law, from where the courts derive their power in judicial review under POCA. The exercise of judicial power does not begin until and unless the court is called upon to do so. Therefore, the substratum of laws must first exist before judicial authority comes into being. There was no usurpation of judicial powers by the legislature. Section 15B, which limits judicial review by the courts only on procedural non-compliance, does not suppress the constitutional powers given to the courts as provided under art. 121 of the FC, and neither does it breach the doctrine of separation of powers between the three branches; namely, the executive, legislative and the judiciary, and thus, was not unconstitutional by virtue of art. 4(1) of the FC.
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ARTICLE HIGHLIGHT
US$167,000 for breaching non-compete pact after joining TikTok owner ByteDance
ASIA
Technology
Tencent wins case against ex-employee who breached non-compete agreement
A former employee of Tencent Holdings
has been slapped by a Beijing court with a fine totalling 1.1 million yuan (US$167,000) for breaking a non-compete agreement with the company after he joined TikTok
-owner ByteDance
, heating up the rivalry between the two Chinese internet
giants. The Beijing No 1 Intermediate People’s Court on March 22 issued a ruling against Chen Shuo, who worked as a senior editor in Tencent’s content platform department for two-and-a-half years, for breaking the six-month non-compete clause in his employment contract with the Shenzhen-based company, according to court documents published on the official database China Judgements Online on March 31.
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Britain issues £500m sovereign sukuk
UK
Islamic finance
UK issues second Sovereign Sukuk
The British government has issued £500 million ($686.85 million) worth of Shariah-compliant sovereign bonds — seven years since it made history as the first country outside the Muslim world to issue a sovereign sukuk.
The Treasury said on Thursday that “£500 million of sukuk, the Islamic equivalent of a bond, has been sold to investors based in the UK and in the major hubs for Islamic finance in the Middle East and Asia.”
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University warden sacked for ‘aggressive’ text messages was unfairly dismissed, tribunal rules
UK
Employment
Warden was unfairly dismissed, compensation cut because of 'blunt' communications
A lecturer accused of sending “aggressive” messages to colleagues has been awarded £15,000 for unfair dismissal after an employment tribunal ruled there had not been a proper investigation into the allegations made against him.
Sitting at the Leicester Hearing Centre, employment judge Adkinson said there had not been so much as the “beginning of an investigation” into a number of allegations made against Dr Binoy Sobnack by his employer, Loughborough University.
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Months on from BI ruling, major insurers have paid zero claims
UK
Insurance
Major insurers yet to pay out on pandemic-related BI claims despite SC ruling
Data from the Financial Conduct Authority (FCA) shows that months on from the UK’s legal ruling on business interruption (BI) claims connected to the pandemic, many major insurers have paid out on only a fraction of claims, with some reporting no payments at all.
Last week, the UK regulator reported that around £472 million has been paid out so far for claims related to the BI test case, which it first brought forward in May 2020.
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Norton antivirus sued by regulator as part of auto-renewing subscription probe
UK
Competition
CMA takes leading antivirus software firm Norton to court in first action of its kind
Antivirus software company Norton is being sued by the UK's competition watchdog for refusing to provide information for an investigation into auto-renewing contracts.
It is the first time that the Competition and Markets Authority (CMA) has taken a company to court for refusing to comply with legal obligations in a consumer protection case, and forms part of an investigation into the antivirus sector which began in 2018.
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