Written by: Averroes
(1.0) Introduction (Facts of the case)
Today, the owner of Rumah Bonda, a welfare home filed a judicial review in her supporting affidavit at the High Court, to open up the venue as it was sealed by the authorities.
It followed the accusation of a child abuse on a 13-year-old disabled girl with down syndrome. The lawyers representing the owner is from Asiah Abd Jalil Law Chambers. Rumah Bonda provides services to shelter unwed mothers, babies born out of wedlock and to take care of children going through court hearings.
The money to maintain and upkeep the premise were sourced from public donations and from those staying in the home that could financially contribute to the premise's funding as well.
This came after a video was posted online which became viral since 5th July 2021. During the time the video became viral, the owner claimed hat she was at the hospital for Covid-19 while the girl was found at her apartment to be in a heartbreaking condition. A police report was then lodged due to that.
Before that on 24th June, in that very apartment or apartment in Wangsa Maju, a woman known as Zurianty Sudin came to there and saw the girl. The girl was discovered with burn marks on her chest, hands, neck and thigs. Rumah Bonda also operated illegally since 2019 as it has not been registered with JKM.
After her quarantine ended, she was called to the Kuala Lumpur police station to give answers. She maintained that she was not involved in any abuse or neglect. She defended that the pictures or videos of Bella online were posted by irresponsible individuals who were spreading malicious news regarding her and Rumah Bonda without any concrete basis.
Later, the owner soon lost custody of the child and that she received a notice of sealing action or order onto Rumah Bonda. The appellant and owner is Siti Bainun Ahd Razali aged 29 and the respondents would be the Director of Social Welfare Department (JKM) and the Community Development Minister in this judicial review.
(1.1) Was the sealing action or order wrong?
The sealing action was implemented on 12th July after the public pressured to take such action. However, the owner said that the sealing order was carried out by the respondents unfairly, irrationally and did not follow the administrative principles of the law.
At the same time, Rumah Bonda was still in the process to register with JKM and cooperated with them closely in social cases. Hence, due to such administrative flaws, a certiorari order or pleading was sought to annul the sealing action by JKM on the said premise in Jalan Kukuban, Taman Setapak.
Apart from the certiorari, a mandamus was also sought to compel the respondents to revoke the sealing order and to allow the appellant to access the premises as to resume the functions and procedure of registering Rumah Bonda with JKM.
(2.0) Law on Sealing Order
The law is found under section 16A(1) of the Care Centres Act 1993 which provides;
"Where the Director General or any authorized officer has reasonable cause to believe that any house, building, premise or other place is being used as a care centre which is not registered under the provisions of this Act, the Director General or the authorized officer may take such steps as he may deem necessary or by any means seal such care centre."
Since the owner is arguing that the order was done irrationally and unreasonably, the common law on this had been imported into Malaysia by the Federal Court case of Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750.
The court cited Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 or in short the Wednesbury Principles that housed the illegality, irrationality and unreasonableness theorem.
In Jill Ireland bt Lawrence Bill v Menteri bagi Kementerian Dalam Negeri & Anor [2021] 8 MLJ 890, cited Lord Diplock's three grounds of review that are also illegality, irrationality and procedural impropriety. His lordship defines them as follows;
(i) Illegality; The decision maker must understand directly the law that regulates his decision making power and must give effect to it.
(ii) Irrationality; It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied in his mind to the question to be decided could have arrived at it.
Whether a decision falls within this category, is a question that judges by their training and experience should be well equipped to answer.
(iii) Procedural Impropriety; is the failure to observe the basic rule of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision.
(2.1) Application of the law to Rumah Bonda
The author is not attempting to defend the owner, but has provided some of his insight on the circumstances if the seal order did subject to illegality, irrationality, procedural impropriety or/and unfairness.
It may not be illegal, because the statute and powers conferred onto Director General is specifically and deeply connected to have a sealing order against premises that have not been registered with JKM as a welfare home or day care centre. Hence, that is the correct law to apply since Rumah Bonda is a Day Care Centre and is bound by the jurisdiction of the Act.
On the contrary, it may be illegal because the Director General was influenced by the public pressure and she/he did not implement the sealing order independently, consensually or by his own accords or will. The seal order was also not necessary, because it had affected the livelihood of the owner and perhaps the occupants to an abode for basic necessities.
The seal order may be implemented irrationally and unreasonably, as the Day Care Centre is still in progress of registering with JKM and has given full collaboration, closely with the latter and that the Director General failed to take this into account before the seal order implementation.
It is not that it was not registered, but 'in progress' of registration as there are efforts to make the Day Care a legitimate abode for the marginalised.
There may be procedural impropriety, since the owner was not given the opportunity explain in detail and descriptively as to the effect of the non-registration of the premise with JKM, as this is part of her natural justice of 'audi alteram partem'.
Similarly, the case of Shamsiah bte Ahmad Shamv Public Services Commission, Malaysia & Anor [1990] 3 MLJ 364, the appellants procedural rights or natural justice were impinged when she was not given the chance to explain her record of service and the ability to be heard at all.
(3.0) Conclusion
To conclude, these are just mere theories of what would happen if the judicial review were to go on and a decision were to be rendered in the future. As of now, we could still provide more legal arguments and viewpoints to determine the aftermath or outcome of the judicial review application on the sealing action or order.
(4.0) References;
Nurbaiti Hamdan. (August, 2021) Rumah Bonda founder files judicial review to reopen its premises. Retrieved from, https://www.thestar.com.my/news/nation/2021/08/13/rumah-bonda-founder-files-judicial-review-to-reopen-its-premises
Rahmat Khairulrijal. (August, 2021) Rumah Bonda files judicial review against seal order. Retrieved from, https://www.nst.com.my/news/crime-courts/2021/08/717751/rumah-bonda-files-judicial-review-against-seal-order
Yen, H.K. (August, 2021) Owner in child abuse case seeks to regain control of centre. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2021/08/13/owner-in-child-abuse-case-seeks-to-regain-control-of-centre/
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