Monday, June 21, 2010

Yew Jen Kie sides with Mazu statue proposers vs Sabah State Government

Joe Fernandez | Apr 22, 09 11:00am

The civil suit on the aborted construction of the Goddess of the Sea (Mazu) statue in Kudat will resume on May 5 after Sabah Chief Minister Musa Aman and three other defendants failed to have the case thrown out on technicalities.

Judicial Commissioner Yew Jen Kie made the decision at 7pm yesterday, after hearing further submissions from counsel Mohammad Shafee Abdullah for the four defendants, and Ansari Abdullah for plaintiff Chong Kah Kiat.

The trial started on Jan 12 and the plaintiff has so far called three witnesses, of whom two have already been cross-examined.

Yew dismissed with costs an application by the defendants to strike out the civil suit over the decision to rescind the approval given to build the statue.

“The claim of the plaintiff cannot by any stretch of the imagination be said to be frivolous or an abuse of the process of the court,” she said.

Yew also dismissed an application by Shafee (right) for a stay of the proceedings pending appeal to the Court of Appeal.

In addition, she dismissed Shafee’s application for an interim stay to file an appeal to the Court of Appeal against the decision not to allow the stay.

She said the court would hear Chong’s originating motion - filed on Dec 12 last year - after the civil suit is completed.

Chong is seeking a court order to revoke the withdrawal of the letter of approval issued by the Kudat Town Board on Nov 15, 2007. He is also seeking a declaration the letter of approval issued by the Kudat Town Board on Feb 8, 2006 is valid and binding on all parties.

He named the Kudat Town Board and the Central Town and Country Planning Board as the first and second respondents respectively in the originating motion.

Details of ruling

In her 11-page ruling, Yew said the grounds of the defendants’ application to strike out the suit were: that the Kudat Thean Hou Charitable Foundation has not to date been issued with a certificate of registration as a trustee, or any body, or association of persons as a corporate body under the laws of Sabah, and therefore has no legal standing and/or capacity to commence, maintain and/or pursue this action through its purported chairperson (Chong) or otherwise; and that the foundation is an illegal organisation and/or body.
The issue in the application, noted Yew, was whether the foundation has the legal standing to maintain the action through its chairperson.

“Has the plaintiff, the Kudat Thean Hou Charitable Foundation, the standing - the qualification in law - to bring the suit to court?” asked Yew.

“Having heard the strong arguments put forth by both counsel (...), my answer (...) is in the negative for the defendants.”

She reiterated her observation that Chong (right in photo) has asserted that the foundation is a purported private trust, while the defendants claimed that it is an unregistered society.

“In my opinion, the issues of whether the foundation is a private trust or a purported society is both a question of fact and of law which can only be determined at the end of the day, upon mature consideration of the evidence adduced during the trial,” ruled Yew.

“By reason that the facts are far from clear and can only be established through evidence adduced in the trial, I hold that the application under Order 33 of the Rules of the High Court 1980 is clearly unsuitable.”

Yew said the court is mindful that the plaintiff does not plead the legal status of the foundation and no description of the foundation was given in the statement of claim.

“Furthermore, the other six trustees are not joined as plaintiffs. Be that be as it may, these omissions, if need be, can be rectified by amending the statement of claim.

“It must be borne in mind that when dealing with the threshold issue on locus standi, the court should not go into the substantive merits of the case at this stage.”

The court’s role at this stage, she said, is purely to see whether the plaintiff has the legal capacity to commence and maintain the action and whether the claim is frivolous and an abuse of the process of the court, and whether the plaintiff has a special genuine interest in the case.

“He would have the legal standing to approach the court and be heard if he has a special genuine interest in the issues raised in the case,” said Yew.

Based on the pleadings in the statement of claim, she said, the plaintiff has amply shown that the foundation has a special genuine interest in the case as the pleadings show that it has been adversely affected by the alleged conduct of the defendants.

“There is a nexus between the foundation and the defendants against the action herein instituted. The plaintiff as chair(person) of the foundation is not a busybody in instituting the action herein and, to my mind, it is a travesty of justice to rob him of the right to approach the court for redress.”

Chong, in his capacity as head of the foundation, had initiated the civil suit on Feb 6 last year against the Sabah government for forcing work to be stopped on the construction of the statue despite the letter of approval from the Kudat Town Board dated Feb 8, 2006.

Kudat Town Board Executive Officer Ariff Abdullah had approved the plans for the statue on Oct 25, 2005.

Chong is seeking a declaration that the first defendant had in giving directions and orders to the other defendants, acted mala fide and/or in abuse of his power as the chief minister and/or ultra vires the Local Government Ordinance and the Town and Country Planning Ordinance.

Apart from the declarations on the Kudat Town Board letters, he is also seeking a ruling that a fatwa issued by the state mufti on July 7, 2006 against the construction of the statute was unconstitutional as it infringed upon Article 11 of the federal constitution. Suit Case by Former Chief Minister Chong Kah Kiat vs Sabah Government The construction of the world’s tallest Taoist Goddess of the Sea statue has set off the latest row over religious freedom in Malaysia. The 36-metre (108-foot) statue of Mazu, known as Tin Hau in Hong Kong, should be erected in the fishing village of Kudat on Borneo Island. So far only the platform has been set; the statue itself is waiting some 200 km away in the port town of Kota Kinabalu. Local authorities had approved construction in December 2005 but Sabah state authorities stopped construction saying that the statue was "offensive to Muslim sensitivities."

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