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Public interest calls for a hearing of the substantive merits of this appeal,
or its dismissal for being hypothetical
1. On 27-1-2015, leave to appeal to the Federal Court was granted with the
Federal Court, on its own motion, determining the following question for the
appeal:-
Court in this appeal. And there is statistical evidence to show that that seems
to be the case in Malaysia: Islamic Law, Womens Rights, and Popular Legal
Consciousness in Malaysia, Professor Tamir Moustafa, Volume 38, Issue 1,
168, Winter 2013, Law and Social Inquiry at pp. 178 to 185 [Tab 195]
4. Much labour, time and cost have already been expended by the Appellants
and Respondents solicitors on their written briefs in the Federal Court
towards substantively answering the leave question.
5. It must also be said that the appeal is now arguably hypothetical given that
the Respondents have been discharged by the Syariah court from their
charges under section 66 right after leave was granted by this Honorable
Court on 27-1-2015: Jabatan Agama Islam Wilayah Persekutuan dan 5 Lagi v
Berjaya Books Sdn Bhd dan 2 Lagi, Federal Court, Civil Application No. 0827-01/2015, dated 25-8-2015 (per Tun Arifin bin Zakaria, Chief Justice)
7. In 1980, the Rules Committee when repealing the Rules of the Supreme
Court 1957 and replacing them with the Rules of the High Court (RHC),
introduced O. 53 which was equipollent to O. 53 of the Rules of the Supreme
Court in England as it stood in 1976: Malaysian Civil Procedure 2013, History,
para 53/1/2 [Tab 196]
d. If this were not so, the effect of O Reilly v Mackman, requiring all
public law cases to be brought by way of judicial review, would have
had the effect of thenceforward preventing a plaintiff who previously
had locus standi to bring civil proceedings for a declaration as to
public rights (even though there was no decision which could be the
subject of a prerogative order) from bringing any proceedings for such
a declaration (at p. 427E F); and
10.
11.
2 CLJ 697 [Tab 200] was decided. It was the first time [the Court of Appeal
was] dealing with the new O. 53 (at p. 709g). The appellant there instituted
an application under O. 53 for a series of declarations grounded on section
46A of the Legal Profession Act 1976 being inconsistent with a number of
fundamental liberties (at pp. 702h 703i). The incisive reasoning of the
Court of Appeal warrants close consideration (at pp. 704f 709g) with the
following three conclusions being instructive in the interpretation of the
new O. 53:-
12.
observations in Tang Kwor Ham & Ors v Pengurusan Danaharta Nasional Bhd
& Ors [2006] 1 CLJ 927 [Tab 201]:-
[60] The other point raised by learned counsel before us, with far less
confidence, is that there was here no "decision" by anyone. And, since O. 53
r. 2(4) speaks of a "decision", the applicants have no cause to argue on an
application for judicial review. Again I cannot agree. In the first place there
was, as demonstrated to a conviction by learned counsel for the applicants
indeed a decision made by Danaharta itself. Secondly, O. 53 r. 2(4) must not
be read in isolation. It must be read contextually, together with O. 53 r. 3(6)
which provides:
[61] If the sub-rules are read together and in their proper context, it can be
seen that there need not always be an actual decision by someone. Take
Sivarasa Rasiah's case. There was no decision by anyone. What had
happened was that the appellant, Sivarasa Rasiah had found himself in a
position where he was unable to be a member of the Bar Council because of
a provision in the Legal Profession Act 1976. He wanted to challenge the
provision and it was held that he could do so by way of a declaration claimed
by way of judicial review. So, again there is no merit in the point taken.
13.
v Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 [IAR(3), Tab 83]. To our
knowledge, the Federal Courts decision in Sivarasa remains good law till
this day.
14.
The 1st, 2nd and 3rd Respondent have been arrested and detained 4, 5 and
4 times respectively between 2010 and 2012. The 1st Respondents 2nd
arrest shows a disturbing incident of stigma, discrimination and violence by
the State religious authorities1. The 1st and 2nd Respondents were subject to
prosecution from 2010 to January 2015, and the 1st Respondent had been
1
10
15.
filed their application for judicial review at the High Court in Seremban with
the primary relief being a declaration that section 66 was inconsistent with
the fundamental liberties guaranteed by the Constitution. It was a direct
constitutional challenge on consistency. The specific instances of the
Respondents arrest, detention and prosecution are not under challenge but
are deposed by them in their affidavits to show that section 66 is being
enforced against them i.e. they are adversely affected by the enforcement of
the said law.
16.
See Part III, para 5 of the Respondents Written Brief for further particulars
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particular facts and circumstance of this case: at paras [8] [12], [15] & [16]
of the said judgment [Tab 202]
17.
18.
On 7-11-2014, the Court of Appeal unanimously set aside the order of the
19.
On 27-1-2015, leave to appeal to the Federal Court was granted with the
20.
through a series of legal battles for more than four (4) years; with all Judges
agreeing that this is a matter that was not only procedurally correct but also
required resolution based on its merits.
21.
With great respect, for the Federal Court to, at this stage, decide that
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An application to set aside any order made by the Judge shall not be
entertained, but the aggrieved party may appeal to the Court of Appeal.
22.
[Sgd.]
Aston Paiva
for the Respondents
This Respondents Points of Clarification is filed for the abovenamed Respondents by their
solicitors Messrs Azzat & Izzat with address for service at No. 32, Jalan PJU 7/16, Mutiara
Damansara 47800 Petaling Jaya
Tel:03- 77256050 Fax:03-77256070 Ref: AI/MISC/0000/72/2014(I)L