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MALAYSIA
Employment
At present, e-hailing drivers are not covered under any labour laws such as the Employment Act 1955 (Act 265)
The government is amending the Employment Act 1955 (Act 265) to update the definition of employees and employers so that e-hailing drivers will be recognised as workers, said deputy human resources minister Awang Hashim in the Dewan Rakyat today.
Responding to a question from Ahmad Jazlan Yaakub (BN-Machang) on steps that will be taken by the government to address the problem of lack of social security for e-hailing riders, Awang said that these employees were not covered under any labour laws such as the Employment Act 1955 (Act 265).
“The ministry is in the process of amending the Act to better clarify the employee-employer relations in the gig industry.”
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CASE(S) HIGHLIGHT
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CCH & ANOR v. PENDAFTAR BESAR BAGI KELAHIRAN DAN KEMATIAN, MALAYSIA
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
NALLINI PATHMANATHAN FCJ
MARY LIM FCJ
HARMINDAR SINGH DHALIWAL FCJ
RHODZARIAH BUJANG FCJ [CIVIL APPEAL NO: 01(f)-35-11-2020(W)]
19 NOVEMBER 2021
[2021] CLJ JT (16)Fundamental rights and provisions must be construed as broadly as possible while provisions which limit those rights must be construed as narrowly as possible. The broadest possible interpretation of the word 'found exposed' in s. 19B of Part III of the Second Schedule of the Federal Constitution ('FC') is to accord it a meaning to include a child abandoned at the place of birth by the birth mother whose identity is unknown. The word 'exposed' must encompass the plight of abandoned new born children. Once it is shown that a new born child is 'found exposed', or abandoned, (i) the child is presumed to have been born to a mother who was permanently resident at the place where the finding was made; and (ii) the date of the finding is taken as the date of the birth. Therefore, a child born at a hospital in Malaysia and later abandoned by his/her birth mother is presumed to be born to a mother permanently resident in the Federation. The child then fulfils the requirement of s. 1(a) of Part II read together with s. 19B of Part III of the Second Schedule of the FC, and is therefore entitled to citizenship by operation of law.
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HOBALAN N VELLO v. PP
HIGH COURT SABAH & SARAWAK, KOTA KINABALU
AMELATI PARNELL JC
[CRIMINAL CASE NO: BKI-45B-4-7-2021]
22 OCTOBER 2021
[2021] CLJ JT (15)In allowing bail in a non-bailable offence under s. 302 of the Penal Code, for which the accused was charged, the court revisited the case of PP v. Dato' Balwant Singh, wherein the court stated, inter alia, that the seriousness of the offence could not be the dominant factor; the court ought to also consider the health condition of the accused person.
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ENTIRAN DURASAMY & OTHER APPLICATIONS v. PP
HIGH COURT MALAYA, IPOH
SU TIANG JOO JC
[CRIMINAL APPLICATION NOS: AA-44-19-04-2021, AA-44-20-04-2021,
AA-44-21-04-2021, AA-44-22-04-2021, AA-44-28-05-2020, AA-44-30-05-2020,
AA-44-31-05-2020 & AA-44-36-06-2020]
2 NOVEMBER 2021
[2021] CLJ JT (14)The blanket denial of the right to be considered for bail for male offenders under the Security Offences (Special Measures) Act 2012 as adverted to by its s. 13(2)(b) is discriminatory of men. Such a blanket exception in favour of women is also devoid of any rationale or reasonable classification or differentiation and violates the equality provision of art. 8 Federal Constitution. Whilst SOSMA is a valid law and remains valid notwithstanding that it may offend arts. 5, 9, 10, 13 of the FC, it cannot offend or be inconsistent with art. 8. It follows that the word ‘women’ in s. 13(2)(b) must be defined as including ‘men’. It follows further that the applicants for bail herein, being men charged with a security offence under SOSMA, are entitled to be considered for bail.
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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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CCH & SATU LAGI lwn. PENDAFTAR BESAR KELAHIRAN DAN KEMATIAN, MALAYSIA
MAHKAMAH RAYUAN, PUTRAJAYA
KAMARDIN HASHIM HMR; HAS ZANAH MEHAT HMR; AZIZAH NAWAWI HMR
[RAYUAN SIVIL NO: W-01(A)-390-08-2019]
12 SEPTEMBER 2021
Kelayakan untuk memperoleh kewarganegaraan melalui kuat kuasa undang-undang ditentukan semasa kelahiran. Sekiranya kelayakan tidak dipenuhi, mahkamah tiada kuasa menambah, membuang atau menimbangkan kelayakan-kelayakan lain yang tidak diperuntukkan oleh Perlembagaan Persekutuan. Undang-undang tentang kewarganegaraan di Malaysia hanya terdapat dalam Perlembagaan Persekutuan, iaitu undang-undang tertinggi Persekutuan. Oleh itu, hak terhadap kewarganegaraan tidak boleh diberi kecuali dengan peruntukan yang jelas dalam Perlembagaan Persekutuan dan tidak boleh ditambah oleh Akta Parlimen. Peruntukan Perlembagaan Persekutuan, terutama yang berkaitan kewarganegaraan, hendaklah diberi tafsiran ketat dengan menghayati bahawa penggubal berniat untuk melindungi hak istimewa ini kepada orang-orang yang benar-benar layak. (Catitan Editor: Keputusan Mahkamah Persekutuan bagi kes ini boleh diakses melalui [2021] 1 LNS 1759; [2021] CLJ JT (16)).
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DELL GLOBAL BUSINESS CENTER SDN BHD v. KETUA PENGARAH HASIL DALAM NEGERI
HIGH COURT MALAYA, PULAU PINANG
AMARJEET SINGH SERJIT SINGH JC
[JUDICIAL REVIEW NO: PA-25-17-03-2021]
19 AUGUST 2021
A taxpayer who is dissatisfied with a decision of the Director General of Inland Revenue may not appeal against the decision and at the same time seek a judicial review of the same. Where therefore the DGIR has carried out a tax audit on the applicant here with respect to its trading and manufacturing activities, and decided that the relevant special incentive packages that the applicant was claiming did not make it eligible to any tax exemption under s. 127(3A) of the Income Tax Act 1967, the applicant, having filed an appeal to the Special Commissioners, cannot further or simultaneously seek a judicial review of the decision; such a course of action is inappropriate and constitutes an abuse of process.
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"In my judgment, the trading prohibition contained in s. 89E(2) does not create a strict liability offence. That this is so is clear from the plain words of the statute. Under s. 89E(2), a person who is an "insider" is subject to the trading prohibition. Under s. 89E(1), a person is an insider if he is in possession of material non-public information, and if he knew or ought reasonably to know that the information in his possession was not in the public domain - ie that it was not generally available within the meaning of s. 89A. It must therefore be proven that an accused or defendant knew or ought to have known that the information in question was not generally available. This knowledge of the accused or defendant constitutes the mens rea element of the insider trading prohibitions." - per Azizul Azmi Adnan J in Suruhanjaya Sekuriti Malaysia v. Sreesanthan Eliathamby [2021] 7 CLJ 913
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ARTICLE HIGHLIGHT
EMPLOYMENT ACT TO BE AMENDED TO COVER E-HAILING DRIVERS
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WOW: EMPOWERING WOMEN THROUGH ENTREPRENEURSHIP
MALAYSIA
Employment
“Give a man a fish, you feed him for a day. Teach a man to fish, you feed him for a lifetime.”
This is the guiding principle of Women of Will (WOW), a non-governmental organisation that aims to empower disadvantaged women. It provides interest-free microcredit and conducts entrepreneurship programmes for women in B40 communities to enable them to start their own small businesses. “Our principle is to teach women how to fish, instead of giving them the fish. We want them to run their own businesses so they can support their families and not rely on handouts,” says WOW founder and president Goh Suet Lan.
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INDONESIA COURT ORDERS GOVERNMENT TO REVISE CONTROVERSIAL LABOUR LAW
ASIA
Employment
Indonesia has two years to amend controversial Omnibus Law on Job Creation
Indonesia's Constitutional Court on Thursday ordered the government to amend parts of a new job creation law within two years, citing procedural flaws in how the controversial legislation was handled. The law, which was passed last year and saw the revision of more than 70 existing laws, sparked protests across Indonesia and complaints that it undermined labour rights and environmental safeguards. Ruling on Thursday in a judicial review brought by unions, chief judge Anwar Usman said if changes were not made in two years, the legislation would be deemed "permanently unconstitutional". The ruling described the way the legislation was handled as procedurally flawed and in some parts, unconstitutional, including changes made after parliamentary approval.
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GIG ECONOMY WORKERS NOT INCLUDED UNDER DEFINITION OF WORKERS, SAYS DEPUTY MINISTER
MALAYSIA
Employment
Gig economy workers are individuals who are self-employed and free, and are focused only on the job scope and the duration that has been decided with the payment already agreed upon
Gig economy workers in the country are not included under the definition of a worker under the Employment Act 1955 (Act 265); Labour Ordinance (Sabah Chapter 67) and the Labour Ordinance (Sarawak Chapter 76), the Dewan Rakyat was told today. Deputy Human Resource Minister Datuk Awang Hashim said that thus far, there was no record or filing of labour cases regarding this group of gig workers that could be used as a benchmark (or a test case) that would allow gig economy workers to enjoy similar benefits as workers as clearly defined under the country’s labour law.
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FAIR WORK RULES EVERY FARM WORKER ON EVERY FARM ENTITLED TO TAKE HOME A MINIMUM RATE OF PAY
AUSTRALIA
Employment
Fruit pickers on piece rate guaranteed minimum wage following landmark Fair Work ruling
The Fair Work Commission has ruled that workers picking fruit on a piece rate must be guaranteed a minimum wage under the Horticulture Award. A piece rate is when a worker is paid according to the amount of produce they harvest, so the more fruit or vegetables harvested the more a worker is paid. The Australian Workers Union (AWU) lodged its claim with the commission in December and argued that every worker should be guaranteed a minimum casual rate, currently $25.41 per hour. In its finding delivered late yesterday, the Fair Work Commission's full bench "expressed the view that the existing pieceworker provisions in the Horticulture Award are not fit for purpose". "They do not provide a fair and relevant minimum safety net as required by the Act," it said.
JUDICIAL QUOTES
