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CASE(S) HIGHLIGHT
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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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ZAIDI MOHD ZAIN & ANOR v. PP
HIGH COURT, PULAU PINANG
MOHD RADZI ABDUL HAMID JC
[CRIMINAL REVISION NO: PA-43-2-03-2021]
06 MAY 2021
Section 51A of the Criminal Procedure Code which provides for automatic disclosure of documents to assist an accused in the preparation of his defence only applies to a criminal trial and not to an inquest before a Coroner. A Coroner, however, is empowered under s. 51 CPC read with Arahan Amalan No. 2 of 2014 and ss. 334 and 337 CPC to provide such documents to an "interested person" as the term is defined in the Arahan Amalan. This being so, the application by the deceased's parents herein for delivery of documents relating to the deceased's death in police custody such as the police reports, the lock-up diary, photographs and sketch plan, and the post-mortem photographs, is allowable in law. It ought also to be noted that whilst an application for documents under s. 51 CPC can be made at any stage of the inquiry, s. 51A cannot be read together with or as an extension of s. 51. The two sections needing to be read separately, it must follow that Retnarasa Annarasa v. PP [2008] 4 CLJ 90, for pronouncing that s. 51A may be read with s. 51 to empower a Coroner to order disclosure of documents in an inquest, is no longer good law.
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JUDICIAL QUOTES
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“In order for the defendant to succeed in resisting an item of costs, the defendant would need to satisfy the court that the item in question has been unreasonably incurred, or that the amount billed for that item was unreasonable. Furthermore, where the item or the amount billed in respect of them was approved by the client, whether expressly or impliedly, a legal presumption will arise that the item was reasonably incurred and that the amount billed for the item was reasonable. In my view, this legal presumption is irrebuttable.” – per Azizul Azmi Adnan J in Skrine (Claiming As A Firm) v. NS Water Consortium Sdn Bhd [2021] 4 CLJ 571
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ARTICLE HIGHLIGHT
VK Lingam fails again in bid to return to law practice
Legal profession
Former lawyer implicated in judge-fixing scandal again barred from return to legal practice
Former lawyer VK Lingam, who was implicated in the 2007 judge-fixing scandal, has failed again in his bid to return to legal practice.
A three-member Court of Appeal bench chaired by Lee Swee Seng said the High Court was correct in maintaining the findings of the Advocates and Solicitors Disciplinary Board in 2015 to strike his name off the rolls. The other judges on the panel were Lee Heng Cheong and Hashim Hamzah.
Swee Seng said the findings of the board to accept the evidence of Loh Gwo Burne and Loh Mui Fah that Lingam was on the telephone communicating to then chief judge of Malaya Ahmad Fairuz Sheikh Abdul Halim were justified.
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UK Supreme Court upholds law firm's non-compete clause with rival after four-year legal battle
Your Lawyers celebrates victory in dispute sparked by potential collaboration over a VW emissions group claim
The UK Supreme Court has ruled in favour of consumer action law firm Your Lawyers in a dispute with rival firm Harcus Sinclair over the enforceability of a non-compete clause relating to their potential collaboration in a group emissions claim against Volkswagen.
The court ruled today that the clause in a non-disclosure agreement (NDA) the firms signed so they could discuss working together on a claim was enforceable, meaning Harcus Sinclair should have sought Your Lawyers' permission before it subsequently ‘retained clients’ and signed on another City firm, Slater and Gordon, to launch its own group collective action.
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Italian IT employee wins unfair dismissal claim after staying in Italy during pandemic
By: Article by: Makbool Javaid, Partner - Simons Muirhead & Burton
UK
Employment
Employee on annual leave in Italy during lockdown was unfairly dismissed
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Italian IT employee wins unfair dismissal claim after staying in Italy during pandemic
Article by: Makbool Javaid, Partner - Simons Muirhead & Burton | Published: 21 July 2021
In the case of Montanaro v Lansafe an employment tribunal held that an employee who was on annual leave in Italy when lockdown was announced was automatically unfairly dismissed when his employer purported to dismiss him for failing to follow company procedures and taking unauthorised holiday.
Mr Montanaro was employed by Lansafe and provided services to their client. Montanaro believed he had permission to take holiday for his sister’s wedding in Italy. However, Italy went into lockdown and UK government guidance stipulated 14 days’ isolation on return from Italy. Montanaro was told to keep his mobile and laptop on and wait for instructions. Lansafe then sent a letter to Montanaro in London (despite knowing he was in Italy) advising that he had been dismissed for failing to follow company procedures and taking unauthorised leave. Montanaro successfully claimed automatic unfair dismissal.
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The end of the résumé? The Dutch startup reinventing recruitment
The résumé has become an essential tool for job hunting or even for applying to educational programs in today's society. And yet, TestGorilla, a human resources startup founded in the Netherlands, no longer believes in this model, which emphasizes recruiters' biases rather than highlighting the real qualities of the candidates applying for a job.
Résumés in the trash! That's the idea behind a project helmed by TestGorilla. The startup specializing in human resources, founded in the Netherlands, wanted to find a way to eliminate recruiters' prejudices and biases when selecting candidates.
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Sharing a video online? Soon you'll need to credit the creator
SINGAPORECopyright
Better copyright protections for content creators and performers
Under the current Copyright Act, creators and performers do not have the right to be identified when their work or performance is used.
Sharing or posting a video of a quirky dance performance online in Singapore, or a photo of a painting from an art gallery here, will soon require the performer or creator to be identified and credited, under proposed changes to the law.
This applies not just to commercial entities and public figures, but general members of the public, too, according to changes to the Copyright Act tabled by the Ministry of Law (MinLaw) in Parliament yesterday.
The requirement does not apply to past public uses of such works. It will apply to future uses only after most provisions in the amendments come into force - if they are passed in Parliament - in November.
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