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Monday, July 26, 2010

Mazu statue remains illegal with apex court decision


Uncertainty now looms over Kudat's Mazu (Goddess of the Sea) statue project in Sabah as the Federal Court today dismissed an application to appeal against a Court of Appeal decision.

The Appeals Court decision was regarding former Sabah chief minister Chong Kah Kiat two suits against a council's letter withdrawing approval for the Mazu project.

The court had ruled that Chong did not have a locus standi (legal standing) to initiate the suits. Chong then filed for leave to appeal to the Federal Court which resulted in today's decision.

The apex court has ordered Chong to pay total costs of RM100,000 to the four respondents including present Chief Minister Musa Aman.

A panel of five judges led by Court of Appeal President Alauddin Mohd Sheriff announced the unanimous decision after hearing submissions from Raja Aziz Addruse representing Chong and Muhammad Shafee Abdullah for Musa and the remaining respondents.

NONEThe other judges were Chief Judge of Malaya Arifin Zakaria, and Federal Court judges Zulkefli Ahmad Makinuddin, Mohd Ghazali Mohd Yusoff and James Foong.

No grounds were given by Alauddin. Chief Judge of Sabah and Sarawak Richard Malanjum was not part of the five-member panel.

Lawyer Ansari Abdullah, who also appeared for Chong said today's apex court decision effectively ended the case with the letter from the Kudat Town Board withdrawal approval for the project still being valid.

In his originating motion filed on Dec 12, 2008, Chong sought a court order to revoke the withdrawal of the letter of approval issued by the Kudat Town Board on Nov 15, 2007 for the Mazu statue project.

Chong named his successor Musa, former state secretary, KY Mustafa, permanent secretary of the State Housing and Local Government Ministry Ujang Sulani and the Kudat Town Board as respondents.

In the second suit, he named Kudat Town Board and the Central Town and Country Planning Board as the other respondents. Apart from Shafee, the respondents were also represented by Ang Hean Leng.

Chong also sought a declaration that the letter of approval issued by the Kudat Town Board on Feb 8, 2006 was valid and binding on all parties.

'Acted mala fide'

Chong also sought a declaration that the fatwa issued by the state mufti on July 7, 2006 - against the construction of the Mazu statute - was unconstitutional as it infringed upon Article 11 of the Federal Constitution.

Chong, in his civil suit, also sought a declaration from the court that Musa had, in giving directions and orders to the other defendants, acted with 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.

NONEOn Aug 9 last year, the Court of Appeal in Kota Kinabalu struck out with costs the suits against the appellants.

Court of Appeal Judge Mohd Raus Sharif who sat together with Judge Abdul Hamid Embong and Judge Sulong Matjeraie unanimously allowed their appeal and set aside Judicial Commissioner Yew Jen Kie's decision on April 21 rejecting the appellants' application to strike out Chong's suit and his originating motion. The trial started on Jan 12.

The Appeals Court ruled that Chong did not have a locus standi(legal standing) to initiate the action.

This was because the Kudat Thean Hou Charitable Foundation, of which Chong was the chairperson, had been deemed to be illegal as it was not registered.

As such the foundation could not institute a cause of action against the respondents.

'Doomed from the start'

Raja Aziz (below) submitted that the issue plaguing the Mazu project was not because the foundation was not registered, which he said was a small, technical matter.

He added there was a tendency of late for the courts to make their decisions on what they regard as pivotal issues without taking into account the surrounding circumstances.

chin peng origin controversy 030807 raja aziz addruse"Such decisions may provide for expedience and convenience, but do not inspire confidence in the quality of justice in the courts," the senior counsel submitted, adding the Mazu case reflected the point.

Shafee however submitted that the case was doomed from the start when Chong, who was said to be representing the foundation, initiated the action despite the foundation not being registered.

"There is no prima facie case as this case was doomed to fail in the initial stage," he said.

"The problem is that the foundation has seven trustees and under the law, if you have more than four, you should have been registered as a society. However, this was not done," he said.

Shafee said Chong's leave application should not be allowed and that the appellate court's decision ruling that the project was illegal was valid.

Statue almost complete

Chong resigned as chief minister and state minister of tourism, under the rotation formula in the Musa cabinet, after the project was stopped on April 13, 2007.

By the time Chong's Mazu project was brought to a halt, a 20-foot platform to place the 88-foot statue project had already been completed. Work at present is said to be 95 percent complete.

courtesy of Malaysiakini

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