mooting

bebel bebel dengan serangan-serangan judges

akhirnya berbaloi

masa bercakap tu, aku xpernah rasa all this rush, adrenaline.

i felt that sense of belonging

i mean i belong to be in the moot court

in future, in court in sya Allah

aku ingat lagi setiap butir apa yang aku cakap

apa yang judges cakap

setiap seorang daripada mereka

i felt so good beyond words can explain

tangan gigil xnak kalah, tapi rasa excited tu sampai meremang bulu roma

SUBMISSION

Assalamualaikum wbt…

Yang amat arif, yang arif, yang arif.

Saya, intan sharina bt ahmad sharizal, peguam kanan bagi pihak perayu. Bersama saya, khairunnisak bt hassni selaku peguam muda. Mewakili pihak responden pada hari ini ialah effa azuin bt aidrul hisham selaku peguam kanan dan nor suhaili bt abu bakar selaku peguam muda.

Yang amat Arif, yang arif, yang arif,

saya memohon kebenaran untuk membentangkan hujah-hujah saya dalam Bahasa Inggeris.

Much obliged Yang Arif.

Before I begin proper, I would like to bring to your attention on the brief material facts of the case.

BRIEF MATERIAL FACTS

·         In the High Court, the plaintiff/respondent argued that her post as a GSTT was withdrawn by the defendants/appellants on the sole ground that the plaintiff was pregnant and this is tantamount to gender discrimination and therefore against Article 8(2) of the Federal Constitution as well as Article 1 and 11 of the Convention on Elimination of All Forms of Discrimination Against Woman (CEDAW).

·         The verdict was in favour of the plaintiff by allowing her application to be restored back and made no order as to cost but the learned High Court Judge, Justice Datuk Zaleha Yusof has erred by deciding that this case was of gender discrimination and against Article 8(2) of the Federal Constitution as well as Article 1 and 11 of the Convention on Elimination of All Forms of Discrimination Against Woman (CEDAW) and Justice Datuk Zaleha Yusof also has erred when stating that whether there is binding contract or not is not relevant.

·        Therefore, the appellants sought to appeal the decision of the High Court before this present Court of Appeal on the grounds that this case was not in relation to gender discrimination but instead, made upon the basis of reasonable classification and in conformity with Article 8(1) of the Federal Constitution and the existence of a binding contract is significant and relevant to our case.

Therefore Yang amat Arif, yang arif, yang arif, we would like to address two issues on behalf of the appellants together with our submissions.

I will start with our first issue within these 10 precious minutes given and we will reserve 2 minutes for the rebuttals.

Can we start with the first issue?

Much obliged Yang Arif.

Our first issue is whether the act of the appellants in refusing to employ pregnant women as GSTT was made on the basis of reasonable classification and thus does not violate Article 8(1) of the Federal Constitution.

In relation to the issue, I would like to submit our very first submission that the act of the appellants in refusing to employ pregnant women as GSTT was made on the basis of reasonable classification and thus does not violate Article 8(1) of the Federal Constitution.

Different classes of people require different forms of treatment.

Yang amat Arif, yang arif, yang arif, I would like to submit our first case tagged as C1, the case of Datuk Hj Harun Bin Hj Idris & ors v Public Prosecutor year [1977] volume 2 Malayan Law Journal page 155.

May I brief you the facts of this case Yang Arif before we move to the highlighted portion?

Much obliged Yang Arif.

This case was tried at the High Court after being transferred from the Subordinate Court by virtue of Section 418A of the Criminal Procedure Code.  The appellant then appealed on two grounds but only the first one is related to our current case. On appeal, it was argued that Section 418A of the Criminal Procedure Code under the provisions of which the case of the appellant was transferred from the subordinate court to the High Court for trial was inconsistent with Article 8 and therefore unconstitutional and void by virtue of Article 4 of the Federal Constitution.

It was held that, Section 418A of the Criminal Procedure Code is not discriminatory.

It was also held that, even if the law may be regarded as discriminatory, there was reasonable classification in it, there was a rational relation because when acting under the section,  cases of unusual difficulty or of unusual importance only will be transferred to expedite trials and no issue of being denied for a fair trial.

Therefore, yang amat arif, yang arif, yang arif,

To relate, this case sets out the correct approach in determining reasonable classification in relation to the equality provision in Article 8(1) of the Federal Constitution, there are principles deduced from the Indian decisions referred and approved by the Federal Court in Datuk Hj Harun’s case that are relevant with our constitution.

We are very aware that this approach was established from a criminal case but it was later used in many civil cases. For instance,

In R. Rethana v The Government of Malaysia [1988] 1 MLJ 133, tagged as C3.

As well as in Government of Malaysia v Menon [1990] 1 MLJ 277 as tagged as C4.

And in the recent Federal Court’s case, Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd (Bar Council Malaysia, intervener) [2004] 2 MLJ 257

Bringing you back to our submission,

Yang Amat Arif, Yang Arif, Yang Arif,

Please refer to Article 8, tagged as S1, allow me to read Article 8(1) of the Federal constitution page 3 of the orange sticker placed at the bottom of the page, right hand side….

“all persons are equal before the law and entitled to the equal protection of the law.”

To further explain the Article,

Yang Amat Arif, Yang Arif, Yang Arif, please refer back to the highlighted portion in C1, page 21 and 22 also of the orange sticker placed at the bottom of the page, right hand side….

“The equality provision is not absolute. It does not mean that all laws must apply uniformly to all persons in all circumstance everywhere.”

Also, it is stated at the next page, page 22 that discriminatory law is good law if it is based on reasonable or permissible classification provided that

1.      The classification is founded on an intelligible differentia which distinguishes persons that are grouped together from others left out of the group.

2.      The differentia has a rational relation to the object sought to be achieved by the law in question. The classification may be founded on different bases such as geographical, or according to objects or occupations and the like. What is necessary is that there must be a nexus (relation) between the basis of classification and the object of the law in question.

By these deductions, we now know the meaning of reasonable classification and its two requirements that must be fulfilled.

Moving on to the first requirement to establish reasonable classification, that is intelligible differentia.

We would like to further elaborate on intelligible differentia first, the meaning and later, the differentia in our current case.

Yang amat Arif, yang arif, yang arif,

We would like to submit the case of R. Rethana v The Government of Malaysia [1988] 1 MLJ 133, tagged as C3.

May I brief you the facts of this case Yang Arif before we move to the highlighted portion?

Much obliged Yang Arif.

The plaintiff sought declarations to the effect that Section 31 and 42 of the Employee’s Social Security Act 1969 (SOCSO) were ultra vires the Federal Constitution because employees covered by SOCSO were prohibited from suing their employers for injuries sustained in the course of employment.

It was held that the classification by SOCSO in the said-sections was not arbitrary but fair and reasonable and therefore the plaintiff’s claim was dismissed with costs on the basis that the sections was based on reasonable classification and it does not offend Article 8(1) of the Federal Constitution.

The intelligible differentia in this case can be seen when SOCSO groups all employers and employees in industries as defined in the Act –ie any business, trade, undertaking, manufacture, or calling of employers and any calling, service, employment, handicraft or industrial occupation or avocation of employees. Employees in these industries have a common characteristic which distinguishes them from those excluded from the group.

And as for the rational relation with the object sought to be achieved by SOCSO, which is the second requirement, it is satisfied as well because SOCSO is to provide for benefits to these employees in case of invalidity and employment injury including occupational diseases.

By referring to the case, it is clear that intelligible differentia distinguishes those that are grouped together from others.

And the differentia must have a rational relation with the object sought to be achieved by the law in question and these two requirements must be fulfilled in order to succeed in proving that the action and law in question is made on the basis of reasonable classification.

Applying this to our current case,

For the first requirement that is intelligible differentia, the appellants distinguished persons that are grouped together from others left out of the group by differentiating the GSTT who cannot be employed when they are pregnant with the permanent teachers that can be employed even when they are pregnant.

Thereby, this classification between the GSTT and permanent teachers is founded on an intelligible differentia. It can be supported with the fact that the appellants withdrew all the three pregnant women’s placement memo that confessed to one of the appellants about their pregnancy including respondent and not just the respondent. If the appellants were to withdraw only the respondent’s placement memo, then this is unlawful discrimination.

In addition to that, by looking closely at the Surat Pekeliling Perkhidmatan Kementerian Pelajaran Malaysia Bil 1/2007,

Yang amat arif, yang arif, yang arif

Kindly refer to the circular tagged as O1 at the highlighted portion page 214 of the orange sticker.

Perkara 3. Taraf GST dan GSTT

3.1 GST dan GSTT adalah bertaraf bukan kakitangan kerajaan. Oleh yang demikian mereka tidak layak mendapat apa jua faedah atau kemudahan seperti yang diterima oleh guru-guru tetap kecuali kemudahan-kemudahan yang tersebut di perenggan 4 di bawah.

Yes, we distinguished the GSTT and permanent teachers because they are of different classes and they require different treatment. By that, the first requirement is now fulfilled.

Now, the intelligible differentia mentioned earlier must have a rational relation with the object to be achieved by the law in question. This is the second requirement that must be fulfilled in order to use the reasonable classification doctrine.

Yang amat arif, yang arif, yang arif,

We would like to submit the case of Government of Malaysia v Menon [1990] 1 MLJ 277 tagged as C4. This case clearly emphasized on the second requirement and succeeded in proving that it is reasonable classification and not discrimination.  

In this case, the Pensions Adjustment Act 1980 made provisions for additional benefits to pensioners and their dependants who are residents in Malaysia however foreign resident pensioners were excluded by s 1(2) of the Act. The decision in the trial court was in favour of the respondent by stating that the Act is discriminatory. He is an Indian citizen and currently residing in Madras, India after his pension. Government of Malaysia then appealed against the decision of the trial court.

Focusing on the object sought to be achieved by the law in question that is the second requirement,

Please refer to page 43 where the object of the Act is not to give additional benefits, pure and simple, to pensioners. The object is to ameliorate the financial position of pensioners in Malaysia due to the depreciating value of the ringgit, and the rise in cost of living allowance in Malaysia. Although it may be reasonable to assume that inflation is a common factor everywhere, it would be arbitrary to conclude not only that the rate of depreciation in value of the Malaysian ringgit is the same as all foreign currencies, but also that the rate of inflation is the same everywhere.

Therefore the classification between foreign and local resident-pensioners that is founded on intelligible differentia has rational nexus with the object sought to be achieved by the 1980 Act.

It was held that, the residential qualification imposed by the Act constitutes a permissible discrimination, and therefore does not violate the equality provision of art 8(1) and as such, it is not null and void under art 4(1) of the Federal Constitution. The appeal made by the Government of Malaysia was allowed with costs and set aside the order of the learned trial judge.

When the respondent retired on 1 February 1973, based on his last drawn salary of $1,500 per month, he was given a pension of $703.13 under the pension legislation. The pension was subsequently revised to a sum of $1,062.50 when his salary was revised with effect from 1 July 1973 under the Harun Commission Report from $1500 to $2,125. If the act had been applied, he would have been paid an additional pension of $322.50, thereby increasing his pension from $1,062.50 to $1,385 per month.

To relate the case with our current case, the law in question for this particular case is the Surat Pekeliling Perkhidmatan Kementerian Pelajaran Malaysia Bil.1 /2007.

The reason why the Surat Pekeliling is the law in question is because it is the only regulations that regulate GSTT. This can be supported by factual paragraph 2 of the case itself, whereby, the warrant states that the employment of GSTT is subject to the terms in the Surat Pekeliling Perkhidmatan Kementerian Pelajaran Malaysia Bil.1 /2007. In addition to that point Yang Arif, kindly refer to Surat Pekeliling in the bundle of authorities tagged as O2 at the highlighted portion page 213 and 214 of the orange sticker.

It is well stated that, with permission Yang Arif,

No 1: Tujuan Surat Pekeliling ini adalah untuk mengemaskinikan syarat-syarat pelantikan Guru-guru sandaran dan juga syarat-syarat perkhidmatan mereka.

No 3.2: walaupun GST dan GSTT adalah tidak bertaraf kakitangan kerajaan, mereka adalah sentiasa tertakluk kepada peraturan-peraturan yang ditetapkan oleh Kementerian Pelajaran Malaysia/ Kementerian Pelajaran Tinggi Malaysia.

By looking closely at the said provisions of the Surat Pekeliling, it is clear that the law in question when proving the rational relation with the differentia is the respective Surat Pekeliling Perkhidmatan Kementerian Pelajaran Malaysia Bil.1 /2007 and the object sought to be achieved by the circular is to overcome the shortage of teachers and not to add to more problems.

This can be seen by referring to page 213 of the orange sticker…

Perkara 2.1.1 dimana guru sandaran adalah diambil bagi mengisi kekosongan hakiki.

With regards to ‘not to add to more problems’, please refer to paragraph 9, page 203 of the noorfadilla’s case. This is through email replied on behalf of the fourth and fifth appellants by relying on the circular. 

 “the ministry added that the purpose of employing GSTT is to help overcome the shortage of teachers and not to add to more problems”

About the force of law of the Surat Pekeliling, I would like to submit to the case of Hjh Halimatussaadiah Bte Hj Kamaruddin v Public Services Commission, Malaysia & Anor [1994] 3 MLJ 61 tagged as C6.

Yang Arif, by looking at the highlighted portion, in this case, the Surat Pekeliling in question has been proved by the learned Mohamed Dzaiddin SCJ that the Service Circular no 2 of 1985 has a force of law.

Hence, Surat Pekeliling Perkhidmatan Kementerian Pelajaran Malaysia Bil.1 /2007 have a force of law and thereby become the law in question when the second requirement of the reasonable classification needs to be proved.

To conclude, the act of the appellants when refusing to employ pregnant women as GSTT was made on the basis of reasonable classification as it satisfies both the requirements of intelligible differentia and the differentia must have a rational relation with the object sought to be achieved with the law in question.

In any event, the nature of the GSTT contracts mandated the exclusion of certain categories of employees in order to achieve its purpose, namely an uninterrupted and continuous education for our children by overcoming shortage of teachers and not to add more problems.

To conclude, we respectfully submit that this appeal to be allowed with costs.

terharuuuuu sgt dah habis

sungguh, penat sangat

tapi alhamdulillah, 

1st rank among best oralists for first moots

1st rank juga among best oralist for final moots

best mooter + we won both cases