LETTER | After hearing the oral submissions by all parties on March 28, the Federal Court has reserved its decision on this much-anticipated court battle where a Malaysian security guard, Subramaniam Letchimanan, is fighting his unlawful dismissal case against the government of the United States of America.
Previously, the US government had obtained leave from Federal Court on Sept 30, 2021, after losing the case in the Court of Appeal on Feb 3, 2021.
The hearing was held virtually before the Federal Court judges Azahar Mohamed, Zabariah Mohd Yusof and Sri Hasnah Mohammed Hashim.
Subramaniam (above, right) was represented by pro bono activist lawyers Ragunath Kesavan, Tai Yong Fung and Joshua Tan whilst the US government was represented by Lim Heng Seng, Amardeep Singh Toor and Chong Yue Han. Liew Horng Bin represented the human resources minister.
Ragunath argued that the Court of Appeal had rightly held, inter alia, that the Industrial Court is the proper forum to decide on Subramaniam’s dismissal and the applicability of the restrictive doctrine of sovereign immunity can only be determined after the fact-finding process in the Industrial Court.
Liew agreed and contended that parties cannot seek an order to prohibit the Industrial Court from hearing the minister’s reference before it has the opportunity to hear the matter and make a determination on the jurisdictional question.
If a party is aggrieved by such a decision, the proper recourse would then be to apply for a judicial review against such a decision.
However, the US government argued that the issue of disciplinary conduct of embassy staff is an internal matter and is the prerogative of a sovereign state.
Therefore, they are immune and the Industrial Court has no jurisdiction to hear the matter.
Background
Subramaniam, a normal security guard who worked for 20 years in the US Embassy, was sacked on April 4, 2008, without any explanation, show-cause letter and domestic inquiry. This is a blatant case of dismissal without due process.
Subramaniam filed a case in accordance with Malaysian law and made a representation for unlawful dismissal under Section 20 of the Industrial Relations Act 1967. Nevertheless, the case was delayed for 11 years.
After a persistent effort by Subramaniam and PSM in seeking justice, M Kulasegaran - then human resources minister - had finally on July 12, 2018, referred the matter to the Industrial Court pursuant to Section 20(3) of the Industrial Relations Act 1967.
The case was then heard before judge Gulam Muhiaddeen at the KL Industrial Court on May 24, 2019.
The US government then made all efforts to defend the dismissal by hiding behind diplomatic immunity under the Vienna Convention 1966 as well as Article 31 of the Diplomatic Privileges (Vienna Convention) Act 1966 on the basis that the US Embassy enjoys legal immunity from criminal and civil suits when conducting official duty.
The US government filed an application for judicial review in the KL High Court to seek an order to quash the minister’s reference.
On Jan 8, 2020, the High Court ruled that the US government has immunity and quashed the minister’s reference with cost.
However, this decision was overturned by the Court of Appeal on Feb 3, 2021, which held that the question of immunity can only be decided by the Industrial Court after considering the nature of employment of an employee.
It has been 13 years since Subramaniam, an ordinary security guard, took the most powerful country in the world to court.
The Federal Court heard all parties’ oral arguments for three hours but had reserved its decision on this matter.
We hope that the Federal Court will do justice to the victim who is still waiting for his day in court.
S ARUTCHELVAN is deputy chairperson of Parti Sosialis Malaysia (PSM).
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
