AT the outset, hats off to my friend and Human Resources Minister Steven Sim for his willingness to raise the issue of the recent judgement in Kuala Lumpur High Court allowing a judicial review application filed by the United States government to overturn an RM66,000 compensation awarded by the industrial court to a former security guard, L. Subramaniam, at its embassy here for wrongful dismissal in a weekly cabinet meeting tomorrow.
The minister also told the media that he would consider it a serious matter. Hence, he has promised the entire nation that he will bring up the matter in the cabinet meeting tomorrow. In addition, his ministry will also scrutinise the court’s decision. His proposed actions reflect his concern for the plight of ordinary people on the street. Yes, people badly need concerned ministers.
The legal battle between Subramaniam and the US Embassy in Malaysia often jogs our memory to an epic fight between David and Goliath or between haves and have-nots.
It seems that both parties have never given up on sticking to their respective principles. As to Subramaniam, being a lone wolf, he badly needs extra stamina and strength to fight the superpower Uncle Sam.
The whole legal tussle between Subramaniam and his then employer – the US government – kicked off in 2008 when Subramaniam claimed that he was unlawfully dismissed by his then employer.
The alleged unlawful dismissal case then went to the industrial court when the then human resources minister in the Pakatan Harapan (PH) government agreed to refer the matter to the court in 2019.
Being endowed with luxurious resources at its disposal, the US government filed a judicial review application in the high court seeking, inter alia, a certiorari 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 legal immunity, thus prohibiting the industrial court from adjudicating Subramaniam’s unlawful dismissal claim.
Subsequently, the legal journey reached the Court of Appeal. To the chagrin of the US government, the appellate forum overturned the high court’s decision in 2021. It then, in turn, ordered the industrial court to proceed with the hearing of the dispute on its merits.
The matter did not end there, though. The decision of the Court of Appeal prompted the US government to bring the matter up to the Federal Court. But in June 2022, the apex court decided to uphold 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, the full-fledged trial in the industrial court of Subramaniam’s claim finally began.
Nevertheless, when the proper trial was about to commence, the US Embassy switched to another gear. It made it clear to the court 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 boycotting 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 (ICJ), the US government adopted almost the same modus operandi.
Despite the unwillingness of the US government to participate in the trial, the trial in the industrial court still, however, proceeded therein. Ergo, on May 2, 2023, the industrial court awarded Subramaniam the sum of RM66,000 over his alleged unlawful dismissal from the US Embassy in Kuala Lumpur in 2008.
One would have expected the US government to simply pay such a meagre sum. Unfortunately, it decided not to pay. To some, the action by the US was akin to “a bullying tactic” against Subramaniam.
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.
Thus, 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.
And on April 1, 2024, the high court judge granted the judicial review application to the US government, hence quashing the RM 66,000-00 award given by the industrial court to poor Subramaniam. No, it was not an April Fools joke. It was real! – April 2, 2024
Mohamed Hanipa Maidin is a former deputy minister of law