IN 2008, a security guard working in the US embassy claimed that he was unlawfully dismissed by his employer.
The alleged unlawful dismissal then went to the industrial court when the then-minister in the Pakatan Harapan government agreed to refer the matter to the court in 2019.
The US government subsequently filed a judicial review application in the high court seeking, inter alia, an order of certiorari in order to quash the minister’s reference decision as well as a declaratory relief that it and its embassy were immune from the jurisdiction of the industrial court.
On January 8, 2020, the high court ruled that the US government and its embassy were protected by immunity thus prohibiting the industrial court from adjudicating the unlawful dismissal claim case of the security guard, L. Subramaniam.
The Court of Appeal however overturned the high court’s decision in 2021. It then, in turn, ordered the industrial court to proceed with hearing the dispute on merits.
The matter did not end there, though. The decision of the appellate court prompted the US government to bring the matter up to the Federal Court. In June 2022, the apex court, however, upheld the ruling of the Court of Appeal. Thus the attempt by the US government to nip the matter in the bud was unsuccessful.
After the Federal Court’s ruling on the preliminary matters, only then did the full-fledged trial in the industrial court of Subramaniam’s claim properly begin.
Nevertheless, when the proper trial was about to kick off, the US embassy switched to another gear. It had made it clear that it would not participate in the hearing of the merits of Subramaniam’s case, resulting in the embassy not providing any evidence of the claimant’s alleged misconduct that formed the basis underlying the dismissal.
Taking a position by not willing to participate in a full trial of the case after its preliminary objections were dismissed by the court seems to be a popular trend adopted by the US government.
When Nicaragua brought the US to the International Court of Justice, the US government adopted almost the same modus operandi.
Despite the unwillingness of the US government to participate in the trial, the trial still proceeded in the industrial court. Ergo, on May 2 this year, the industrial court awarded RM66,000 to Subramaniam over his alleged unlawful dismissal from the US embassy in Kuala Lumpur in 2008.
Being dissatisfied with the industrial court’s award, the US government, once again, moved for judicial review in the high court. To be fair to the US, what it did was perfectly legal under the present system.
And recently – on October 3, 2023 – the Kuala Lumpur High Court granted leave to the US embassy in Malaysia to challenge the industrial court ruling awarding RM66,000 to a security guard who was dismissed 15 years ago.
Assuming the US government is defeated again, it has two more avenues to go to, namely by going to the Court of Appeal and Federal Court respectively.
As to Subramaniam – being a lone wolf – he badly needs extra stamina and strength to fight the superpower Uncle Sam. It seems that both parties have never given up on sticking to their respective principles. – October 12, 2023
Mohamed Hanipa Maidin is a former deputy law minister and an MP for two terms. He was also a practising lawyer for almost 25 years