Papers by Chithralatha Ramalingam
lexis nexis malayan law journal, 2022
CONSTITUTIONALITY OF PUBLIC HEALTH MOVEMENT RESTRICTIONS IN LIGHT OF FREEDOM OF MOVEMENT AND ITS LIMITATIONS, 2022
3 MLJ 72. 4 Article 9(2) provides: '[s]ubject to Clause (3) and to any law relating to the securi... more 3 MLJ 72. 4 Article 9(2) provides: '[s]ubject to Clause (3) and to any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the Federation and to reside in any part thereof '.
Lexis Nexis Malaysia Sdn Bhd, 2021
In relation to this issue it would be worthwhile to review the majority and minority’s opinion in... more In relation to this issue it would be worthwhile to review the majority and minority’s opinion in Maria Chin case in relation to this doctrine and also to revisit the horizontal application of the stare decisis doctrine with a view of addressing the Federal Court’s flip-flop in relation to this doctrine
Lexis Nexis Malaysia Sdn Bhd, Apr 11, 2021
A perusal of historical records of Penang, before the island was colonised by the East India Comp... more A perusal of historical records of Penang, before the island was colonised by the East India Company, shows that the island was inhabited by some Malays and was already the playing ground of the Kedah royalties.6 Therefore, to argue that English law in Penang was ‘settled law’ would be inaccurate and contrary to the above established facts. Interestingly, the evolution of the law is seen during the British empire by taking on colonies and clearly it was to ensure that the heritage of the English law will live on and hence, making English law the law of the colony. The benefit of the British Empire was that by the 18th Century, English’s Law was already well settled in the Malay Peninsular and it was relatively easy to determine which laws that can be received and applied. In light of the above, this article reviews the history of English law in Malay Peninsular with special focus on why the need to review ss 3 and 5 of the Civil Law Act 1956,7 which relates to the current applicatio...
Journal of Legal, Ethical and Regulatory Issues, 2020
In the era of globalization, people migrating to foreign countries for better working opportuniti... more In the era of globalization, people migrating to foreign countries for better working opportunities become more prevalent compared to the past centuries. At the same time, the international community, especially United Nations (UN) and International Labour Organisation (ILO), come out with several international conventions and legal instruments for the protection of the migrant workers in foreign jurisdictions. At the national level, many States enact various types of laws and regulations relating to employment matters in which some rights of migrant workers are guaranteed in one way or another. Unfortunately, all forms of exploitation of migrant workers across the globe are continuing with the varying degree in different jurisdictions. Accordingly, this paper examines the rights of migrant workers guaranteed under the Malaysian law and proposes that all workers should be treated with equality, fairness, and dignity regardless of whether they are local or migrant. As for the issue o...
LexisNexis Malaysia Sdn Bhd, Nov 1, 2020
The stoic legal framework of employment relations in Malaysia has been almost etched in stone sin... more The stoic legal framework of employment relations in Malaysia has been almost etched in stone since the independence albeit with minor changes to the existing employment statutes. 2 The enactment of employment statute is based on the discussion involving the government, employers and the employees, they are nevertheless largely controlled by state and the employer. 3 This results in employee being subjugated by the unilateral management decision and hence, the employers take the upper hand and are now proposing the force majeure clause, 4 in as much as it is meant to be a clause to protect either party, it solely become a contract for the benefit of the employer.
The basic features of the constitution have not been specified and hence, it is for the court to ... more The basic features of the constitution have not been specified and hence, it is for the court to decide on a case-bycase basis. Fundamentally, the basic features of the Malaysian constitution would include the position of Islam as the religion of the Federation, supremacy of the constitution, fundamental liberties, constitutional monarchy, federalism and separation of the powers between the three branches of State, among others. 12 As stated earlier, this doctrine was not favoured by the apex court in Loh Kooi Choon, Phang Chin Hock, Mark Koding v Public Prosecutor, 13 and Kok Wah Kuan. The reason was mainly because of the difference between the Indian Constitution and the Malaysian Constitution particularly the provisions relating to the constitutional amendment. In Loh Kooi Choon, Raja Azlan Shah FJ stated that: 'the question whether the impugned Act is 'harsh and unjust' is a The Eclipse of Basic Structure Doctrine: An Assessment of Clash Between Three Titans and Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 3 MLJ clxx.... question of policy to be debated and decided by Parliament, and therefore, not meet for judicial determination'. 14 Again, in Phang Chin Hock, Suffian LP opined that: 'Parliament have power to make constitutional amendments that are inconsistent with the Constitution. Secondly, Parliament may amend the Constitution in any way they think fit, provided they comply with all the conditions precedent and subsequent regarding manner and form prescribed by the Constitution itself and it is unnecessary for us to say whether or not Parliament's power of constitutional amendment extends to destroying the basic structure of the Constitution'. 15 At this juncture, it is noteworthy that our constitution has vested power to the Parliament to amend any part of the constitution in any way they think fit, provided that all the conditions precedent prescribed by the constitution itself are followed. 16 In Phang Chin Hock, Suffian LP further stated that: 17 If it is correct that amendments made to the Constitution are valid only if consistent with its existing provisions, then clearly no change whatsoever may be made to the Constitution; in other words, art. 159 is superfluous, for the Constitution cannot be changed or altered in any way, as if it has been carved in granite. If our Constitution makers had intended that their successors should not in any way alter their handiwork, it would have been perfectly easy for them to so provide; but nowhere in the Constitution does it appear that that was their intention, even if they had been so unrealistic as to harbour such intention. On the contrary apart from art. 159, there are many provisions showing that they realised that the Constitution should be a living document intended to be workable between the partners that constitute the Malayan (later Malaysian) policy, a living document that is reviewable from time to time in the light of experience and, if need be, amended. (b) judicial power in particular the power of judicial review, is an essential feature of the basic structure of the Constitution;
The written record of a judiciary oath can be traced as way back as ancient Greece, from Homer to... more The written record of a judiciary oath can be traced as way back as ancient Greece, from Homer to Hesiod to Plate and it was more often than not associated with perjury. 1 Hence, oath was seen to be more closely related in law than religion. St Thomas Aquinas 2 stated that 'an oath is a reverence for the name of God is taken in confirmation of a promise. Hence what is confirmed by oath does not, for this reason, become an act of religion'. 3 A judge takes an oath when he is appointed to be part of the judiciary. In holding this office of justice, the integrity of judges is paramount to the official functions demanded of them to ensure that they move forward as the beacon of truth. Judges' decision-making must be guided by what is true and fair when finding the laws in cases. The taking of the oath by judges is customary practice in many countries 4 and the salute to it must be more than titular. It is considered as a pledge by the judge as a promise for his responsibility he has made to God in as much as a pledge of honour is an anachronistic morality between the executive and the judiciary in recent times. Retired Judge Michael Kirby 5 quoted Sir Owen Dixon's pledge that it was the duty of the court of law to administer and main justice according to the letters of the law. 6 The judge was convinced, however, that the word he heard in 1974 during his appointment as a judge had changed in 1994. He observed that although the independence of the judiciary was without peril to life and safety, judges were 'attacked' by parliaments and by the government of the day through several 'political persuasions'. He further called for the Australian judiciary to be reformed on professionalism, integrity, and independence and forsake what were the afflictions on justice. 7 Having said the above, this article discusses the constitutional oath of judges with reference to its practice in United Kingdom, United States of America, India and Australia. It is worthwhile noting that the judicial independence is a universal principle 8 and this is important because society will have the trust in the judiciary to ensure that all laws are meted out fairly and justly. This will also hold the legislature and executive to be accountable for their actions. 9 Society has a right to demand that the judiciary is independently reflecting the doctrine of separation of powers. Honorable Mr. Justice RE McGarvie mentioned that the citizen's right to a fair hearing is a fundamental nature justice principle that forms part of human rights. 10 CONSTITUTIONAL OATH: A COMPARATIVE APPROACH 'Why otherwise does it [the Constitution] direct the judges to take an oath to support it? This oath certainly applies especially, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! … If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime'. 11 The above excerpt albeit an American case of Marbury v Madison 12 establishes that judges are accountable to the society at large. In Australia, The Honourable Tom Bathurst AC, Chief Justice of NSW explained that the judges are protected from 'sacrificial' accountability because the very laws (constitution) that protect them, also imposes an obligation to protect their judicial oath. 13 It is only through the doctrine of separation of powers that the judicial independence shall allow the judiciary to be free from shackles of political interference. Accountability in the legal field means a responsible commitment to offering reasons for the decision made in court (ratio decidendi). 14 Justice is seen to be done in the 'open court' system that is practiced in most countries including Malaysia, where the public has access to the judicial proceedings of the courts. Accountability is the keystone in the judicial arch of independence and it is augmented by the principles of democracy, the separation of powers, and the rule of law. 15 The fundamental law in India is the constitution, however, the Indian constitution expressly states that 'to separate the judiciary from the executive in the public services of the State'. 16 The case of S.C. Advocates-on-Record Ass'n v Union of India, 17 recognised the judiciary's right of independence from the two organs of governance concerning the separation of powers. The journey in judicial independence in India has been a rocky road. In the case of A.K.
In the era of globalization, people migrating to foreign countries for better working opportuniti... more In the era of globalization, people migrating to foreign countries for better working opportunities become more prevalent compared to the past centuries. At the same time, the international community, especially United Nations (UN) and International Labour Organisation (ILO), come out with several international conventions and legal instruments for the protection of the migrant workers in foreign jurisdictions. At the national level, many States enact various types of laws and regulations relating to employment matters in which some rights of migrant workers are guaranteed in one way or another. Unfortunately, all forms of exploitation of migrant workers across the globe are continuing with the varying degree in different jurisdictions. Accordingly, this paper examines the rights of migrant workers guaranteed under the Malaysian law and proposes that all workers should be treated with equality, fairness, and dignity regardless of whether they are local or migrant. As for the issue of undocumented migrant workers in Malaysia, it is further proposed that the government should take stern action against those who hire undocumented migrant workers and harbour them with accommodations. In the same vein, it should continuously identify undocumented migrant workers for the deportation to their home country. In reducing the reliance on migrant workers, the implementation of the flexible working arrangements for local workers should be given due consideration.
The origins and the development of legal education and its profession in Malaysia lend its backdr... more The origins and the development of legal education and its profession in Malaysia lend its backdrop by the sponsors of the colonisation period in Malaysia. 2 It is not known exactly when the legal profession was first introduced in England because prior to the 12th century 3 the idea of courts generated from the local property ownership system where there were obligations of the people to the owners known as Lords which they occupied. Therefore, law and courts were practised according to the customary practises of the area or known as county. 4 This shows that the legal profession per se at that time did not exist as how it is now practised. With the beginning of the common law legal system during the reign of Henry II, King of England, had weakened the
It is undeniable that the English law forms the backbone and the foundation of the Malaysian lega... more It is undeniable that the English law forms the backbone and the foundation of the Malaysian legal system. This is reflected in the application of English case of Calvin's in 1608 where it was concerned with the right of a Scottish to sue in English courts, though of course not directly relevant to the overseas colonised countries. 2 In order to appreciate the current reception of the English Law in Malaysia pursuant to the Civil Law Act 1956 (CLA), the distinction of "ceded" and "settled" colonies or even by "peaceful colonisation" is inevitable. Therefore, it is necessary to explore the meanings of the above terminologies and with reference to Calvin's case where it was held, inter alia, that once a territory had been ceded to the crown, the sovereign was obligated to "maintain and defend" the people who inhabit that territory and thus, these people owed the sovereign (and the sovereign's laws) their allegiance. Once the status of being a subject was established, the consequences of cession for pre-existing legal systems were generally the same as those of conquest, whereby the existing laws and customs survived until expressly altered by the Crown.
Multiculturalism is an important concept in respect of cultural diversity. In Malaysia, a country... more Multiculturalism is an important concept in respect of cultural diversity. In Malaysia, a country of multi race and religion, it is important practice for respect of difference in relation to equality and tolerance. The respect for cultural diversity has been always emphasized by the Malaysian Government since the Independence of this country in 1957. This is further enhanced by the process of globalization and now glocalization. The challenges of cultural differences and racisms continued to be present in the Malaysia arena irrespective of the fact that the leaders of the country and the government strives to adopt a multicultured society. Researchers have identified legislations, education and policies to promote intercultural respect and tolerance and understanding. In Malaysia, sports are one such activity which is used to promote multiculturalism. This research will therefore investigate the issue sports as a tool for social integration and what are the evidences to prove that Malaysia has attained an acceptable level of social integration. The focus of this topic will be on the how sports and its policies have been used to promote the concept of multiculturalism. It will also discuss how multicultural education in sports plays an important role in supporting unity and equality in relation to sports. It will also evaluate the benefits of sports in cultural diversity and multiculturalism. This research will use the case studies and theories to evaluate the extent of the multiculturalism in sports.
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Papers by Chithralatha Ramalingam