Avon Global Center for Women and Justice at Cornell Law School - Green Background

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  • Deepa a/p Subramaniam (Appellant; Husband) v. Viran a/l Nagapan (Respondent; Wife), Malaysia, Dalam Perkara Mahkamah Tinggi Malaya Di Seremban, 2014.
    The Appellant and the Respondent were married in 2003 under the Law Reform (Marriage and Divorce) Act 1976, and they have two children. In 2012, the Appellant converted to Islam, as well as his children. Pursuant to his conversion, the Appellant applied for the dissolution of the marriage of the Serembian Syariah High Court (the Syariah Court), which is the Islamic Religious Court. In September 2013, the Syariah Court granted custody order to the Appellant with visitation rights and access to the Respondent. In December 2013, the Respondent filed a petition for divorce and sought the custody of the children at the Serembian High Court, which were both granted to the Respondent, upon which both children were surrendered to the Respondent at the court premises. Two days later, the Appellant took away the youngest child from the Respondent. Consequently, the Respondent filed an application in the High Court for a recovery order for the recovery of the child, which was granted. The Appellant filed two separate appeals, one of the custody order and the other of the recovery order, in the Court of Appeal and argued that the Syariah Court, as opposed to the High Court, had jurisdiction to grant the custody order as well as the recovery order. The Court of Appeal dismissed the appeal regarding the custody order because by contracting the civil marriage, the husband and wife were bound by the Law Reform Act in respect to divorce and custody of the children, and thus, the civil court continued to have jurisdiction over the husband, notwithstanding his conversion to Islam. As provided in the Federal Constitution, the Syariah Court and the Civil High Court are courts of “coordinate” jurisdiction, and one court is in no position to overrule or set aside the decision of another court. However, the Court held that, the issue was not whether or not the High Court could disregard or set aside the Syariah Court order, but rather which court has jurisdiction over parties who had contracted civil marriage and had children out of a civil marriage. The Court held that only civil courts, including the High Court, had jurisdiction over such civil marriage, and children resulting from a civil marriage. Therefore, as per the High Court’s decision, only the Respondent has lawful custody of the child, and that the recovery order of the High Court is not flawed.
  • Balan Subramaniam A/L Ponnudurai (Appellant) v. Public Prosecutor (Respondent), Malaysia, Court of Appeal, 2012.
    Appellant burned down his house, along with his wife Angeladevi, and his daughters Malini and Anuradha. Angeladevi and Anuradha died as a result, and Malini survived. Angeladevi gave an oral dying declaration and Anuradha gave a written dying declaration to the effect that the Appellant (Angeladevi’s husband and Anuradha’s father) was the person who set them on fire. Angeladevi’s declaration was given to the medical personnel who attended to the woman at the hospital, and Anuradha’s declaration was given to the police. The Appellant appealed, among other things, the admissibility of the dying declaration of Anuradha. The Court of Appeal dismissed the appeal for the following reasons, among others: (1) the threshold for admissibility of a statement in the nature of a dying declaration under section 32(1)(a) of Evidence Act of 1950 is very low in contrast to a dying declaration at common law, (2) the supporting witness statements of neighbors give greater probative force to the statements, and (3) even the recovery of a dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of the homicidal death of the victim, and even when the body is not recovered, pure circumstantial evidence itself is sufficient to sustain a charge of murder. Therefore, the court found that the appellate intervention is not warranted, and that the appeal has no merit.
  • Freescale Semiconductor Malaysia SDN BHD (Appellant) v. Edwin Michael Jalleh (First Respondent), and Mahkamah Perusahaan Malaysia, Malaysia, Court of Appeal Malaysia at Putrajaya, 2012.
    The First Respondent Edwin Michael Jalleh was a senior manufacturing supervisor at the Appellant, and he deliberately touched the buttocks of Intan Nurulain, while she was working at the saw machine. Jalleh was a supervisor on the floor. The administrative inquiry found the allegation to be proved, and he was issued a letter of dismissal from the Appellant. The First Respondent filed a claim under Section 20 of the Industrial Relations Act 1967 that his services had been terminated without just cause or excuse. He sought, among other things, reinstatement. The Industrial Court ordered that the First Respondent be accorded with backwages and compensation in lieu reinstatement, because the punishment of dismissal was too harsh. The High Court dismissed the application by the Appellant for judicial review to quash the award of the Industrial Court. The Court of Appeal, in this case, stated that the germane consideration in industrial relations is that the remedy imposed is warranted and not disproportionate to the misconduct committed, and that consideration must be taken not only of matters concerning the interests of the party who committed the misconduct, but also the whole of the circumstances in the interest of maintenance of good industrial relations in the workplace. The Court of Appeal provided that the Industrial Court failed to take into account that the offense of the sexual misconduct was not committed by a peer, but rather by a superior, which increased the magnitude of the misconduct. Further, an award to the First Respondent (i.e., the person who committed the sexual harassment) in lieu of his reinstatement imposes an unfair punishment upon the Appellant (i.e., the employer), when the misconduct is not the act of or contributed by the employer, but solely a personal act of the employee. As such, the Court of Appeal set aside the order of the High Court and the award of the Industrial Court.
  • Peilis Bin Sami (Appellant) v. Public Prosecutor (Respondent), Malaysia, Court of Appeal Sitting at Kota Kinabalu, Sabah, 2012.
    This is an appeal against the decision of the High Court of Kota Kinabalu that had affirmed the sentences imposed by the Sessions Court of Kota Kinabalu on the Appellant. At the Sessions Court, the Appellant was charged with the 3 counts of rape of a fifteen-year-old girl, and at the conclusion of the trial, the Sessions Court found him guilty of attempted rape on the first count; and guilty of the offences of rape on the remaining 2 counts. The Sessions Court sentenced him to 4 years’ imprisonment for the first charge, and 11 years’ imprisonment for the other charges, all of which were to run consecutively. The Appellant stated in his appeal, as mitigation factors, that the victim and the Appellant were lovers, and that the sexual acts were consensual, that the complainant at the time of the commission of the offenses was almost 16 years old, and that the complainant has had sexual experiences with other men previously. The Court of Appeal held that the punishment imposed by the Sessions Court was fair and commensurate with the seriousness of the offenses committed by the Appellant, and the sentences were affirmed. In addition, the Appellant’s statement that the victim and the Appellant were lovers, and that the sexual acts were consensual were not deemed as mitigating factors by the Court since the victim was a minor, and the Appellant was 25 years old. In addition, the Court of Appeal stated that the Appellant’s claim that the victim had sexual experiences with other men was mischievous, irrelevant to the case, and far from attracting the sympathy of the Court, and was viewed by the Court as a lack of remorse by the Appellant with respect to his crime.
  • Noorfadilla Binti Ahmad Saikin (Plaintiff) v. Chayed Bin Basirun et al. (Defendants), Malaysia, High Court of Malaya at Shah Alam in the State of Selangor Darul Ehsan, 2011.
    The Plaintiff interviewed with the education officers of the Education Office of the Hulu Langat District to become an untrained teacher. During the interview, the Plaintiff was asked questions pertaining to her general knowledge, personal details, problem solving skills and residential address. She was not asked about her pregnancy status. The Plaintiff was accepted for the position and presented herself at an instructional meeting as instructed. At the meeting, she was told to report for duty immediately. Subsequently, an education officer asked whether anyone at the meeting was pregnant. Once the Plaintiff admitted that she was pregnant, her placement memorandum was withdrawn. The High Court held that it was not relevant whether or not there was a binding contract, as the the Defendants’ decision interfered with the Plaintiff’s right to be employed, which is contrary to Article 8(2) of the Federal Constitution, which provides that there shall be no discrimination on the ground of gender in the appointment of any office or employment under a public authority. This Article of the Federal Constitution was adopted to comply with Malaysia’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The High Court declared that using pregnancy as a factor in employment is a form of gender discrimination under the Malaysian Constitution, applying CEDAW in interpreting Article 8(2) of the Constitution, because of the basic biological fact that only a woman has capacity to become pregnant.
  • SIS Forum (Malaysia) v Dato’ Seri Syed Hamid bin Syed Jaafar Albar, Malaysia, High Court (Kuala Lumpur), 2010.
    SIS Forum (Malaysia) (“SIS Forum”) sought judicial review of the Minister of Home Affairs’ (“Minister”) decision to ban a book published by it, “Muslim Women and the Challenges of Islamic Extremism”. The book was a compilation of essays submitted during an international roundtable discussing challenges faced by Muslim women, including gender discrimination. The book was in circulation for two years before it was banned by the Minister for violating the Printing Presses and Publications (Control of Undesirable Publications) (No 5) Order 2008 (the “Act”). The Act prohibits publication of materials which are “prejudicial to public order”, among other things, and affords the Minister an absolute discretion to prohibit publication of any material contravening the Act. The High Court found that the Minister was unable to provide examples of how the book implicated public order issues by affecting public safety and tranquility of the community. Moreover, the book had been in circulation for 2 years and had not adversely impacted the safety and tranquility of the public. Accordingly, the High Court granted judicial review application for substantive relief to SIS Forum.