Social justice, as my late professor, Lakshimi Narayanan, of Karaikal, Tamil Nadu, taught, is the key to economic utility.
Economic utility is not just about profit; it is the measure of satisfaction and benefit the public derives from the structured engagement of capital, labour, distribution and consumption.
It is, in my view, an ethical constitutional obligation under the Oath of Office jurisprudence — one Malaysia must embrace to sustain harmonious rights for employers and workers alike.
Professor Narayanan’s message was clear: a nation must be self‑sustainable in agriculture, industrialise for self‑reliance, and eradicate poverty, unemployment and underemployment.
Generally underemployment refers to a failure to fully utilise workers according to their skills, education or availability, but in Malaysia there appears to be another kind. I am referring to the employment of workers who do a two-hour job and receive eight hours’ pay, something I witnessed firsthand when serving in the judiciary.
Ultimately, the nation’s failure to achieve economic utility is what breeds corruption, abuse of power and victimisation of the poor and working class, all of which unfortunately have become entrenched features of our society.
Judicial review and industrial harmony
Both employers and employees are pillars of economic growth. The state’s primary duty is to protect their interests to achieve industrial harmony, for which the courts play a vital role.
Judicial review — simple, cost‑effective and expeditious — has long been the mechanism to ventilate grievances against public bodies. In the UK, India and other jurisdictions, it remains a cornerstone of industrial jurisprudence.
Yet in Malaysia, this right has been curtailed.
Industrial Court disputes are now denied access to the Federal Court, replaced by a slower, more expensive appeals process that no longer reaches the apex level. This undermines both justice and economic utility.
The 2020 amendment
The Industrial Relations Act 1967 was amended in February 2020 to introduce Section 33(c). This provision makes Industrial Court awards appealable to the High Court as if they were decisions of the sessions court.
The amendment, unfortunately has had the effect of reducing the Industrial Court — a specialised statutory arbitration tribunal — to a subordinate court.
That means Industrial Court awards can now be challenged both for errors of fact and law according to the ordinary appeals process, burying decades of jurisprudence that limited challenges to judicial review.
Worse, it deprives the Federal Court of its supervisory role over industrial awards and misconduct. Ironically, even an arbitration award issued by a layperson can be challenged right up to the Federal Court — but not an award by the Industrial Court.
This is jurisprudentially unsound and demeaning to both employers and employees.
Lessons ignored
Malaysia’s economic planners missed the socialist ideals of self‑reliance that powered India’s growth. Instead, we leaned heavily on natural resources, celebrating short‑term gains while neglecting empowerment of workers, employers and farmers.
The result is a population dependent on handouts and low wages, in stark contrast to Singapore’s trajectory.
Legislation that obstructs access to the Federal Court risks breaching the Oath of Office jurisprudence. Such laws must be tested against the doctrine of constitutional supremacy.
My critique of the British aristocratic litigation procedure (BALP) is relevant here.
BALP, a colonial legacy, has caused backlogs across Commonwealth countries. It is a misfeasance against social justice, flourishing due to governmental ignorance of its lack of economic utility.
BALP delays justice, increases stress and indirectly inflates healthcare costs. By contrast, arbitration rules offer a stress‑free, affordable, and efficient alternative.
Malaysia’s adoption of Section 33(c) echoes BALP’s inefficiencies, undermining both social justice and economic utility.
Section 33(c) is bound to increase appeals, clogging the system with re-hearings that scrutinise records for both factual and legal errors. What was once an expeditious process has become a costly, drawn‑out ordeal.
It is time for the legal industry to test the constitutionality of Section 33(c). The chief justice, through the chief registrar of the Federal Court, should proactively alert the government and attorney-general to the risks of mounting backlogs.
Social justice is not an abstract ideal. It is the foundation of economic utility, the ethical obligation of governance, and the lifeline of industrial harmony.
Denying employers and employees the right to appeal to the Federal Court is a betrayal of that obligation.
Malaysia must restore judicial review for industrial disputes and allow Industrial Court cases to reach the apex level to honour constitutional supremacy, protect the working class, and achieve the economic utility envisioned by Professor Narayanan.
The views expressed are those of the writer and do not necessarily reflect those of FMT.