CASE OF THE WEEK
CONSTITUTIONAL LAW: Courts - Judicial power - Whether only federal laws can mould powers and jurisdiction of court
DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANGKUASA RAYUAN)
RAYUAN SIVIL NO. W-02-687-1996
ANTARA
P. SANTHIRASEGARAM ... PERAYU
DAN
THE BOARD OF TRUSTEES OF THE ATHI EESWARAN TEMPLE ... RESPONDEN
[Di dalam perkara Mahkamah Tinggi Malaya
di Kuala Lumpur (Bahagian Sivil)
Guaman No.: S7-22-726-90
Antara
The Board Of Trustees Of The Athi Eeswaran Temple ... Plaintif
Dan
P. Santhirasegaram ... Defendan]
Coram: G. Sri Ram, J.CA.
Ahmad Fairuz bin Dato' Sheikh Abdul Halim, J.C.A.
Denis Ong Jiew Fook, J.C.A.
JUDGMENT OF THE COURT
1. This case concerns a dispute about the affairs of a temple. The plaintiff is the temple's board trustees. The defendant is alleged in the plaintiff's pleaded case to be an interloper who is interfering in the temple's affairs. There were two sets of interlocutory proceedings before High Court. The first related to an application for an interlocutory injunction to restrain the defendant, inter alia, from entering the plaintiff's office located at the temple. Those proceedings terminated in the plaintiff's favour. The second set of proceedings concern an application by the defendant to strike out the writ on the ground that the court has no jurisdiction to entertain the suit. These too were resolved in the plaintiff's favour. It is against the High Court's refusal to strike out the suit that the present appeal has been brought.
2. The main argument raised in the court below and repeated before us is that as a matter of written law the High Court is without jurisdiction to entertain this dispute. The written law relied upon by the defendant is Selangor Enactment No.8 of 1941 which constituted the trust. Section 12 of the said Enactment provides as follows:
"12(i) If at any time any matter shall arise for decision or any thing shall require to be done in connection with the Temple or with the powers and duties of the Board and there is no provision regulating the manner in which or by whom such matter should be decided or such thing should be done either in this Enactment or in any rules lawfully made thereunder then until this Enactment or any rules made thereunder is or are amended so as to include such provision the President may decide such matter or do or cause such thing to be done according to his discretion.
(ii) If as between any members of the Board or as between any person claiming to be or to be entitled to become a member of the Board and other members of the Board or as between the Board or any member of it and any person claiming to attend or to be entitled to attend the Temple for religious purposes or otherwise to have an interest in the Temple there shall at any time arise any dispute:
- as to the scope or due exercise or
performance of any of the powers or
duties of the Board, or- as to the proper construction of any
provision of this Enactment or of any
rules made thereunder,no Court shall entertain or try or proceed with any suit or other proceeding for the purpose of deciding such dispute but any such dispute shall be referred to the President who shall after such investigation (either by himself or by some other officer nominated by him) and according to such procedure as he may deem to be desirable in order that justice therein be done give in writing his decision on such dispute and such decision shall thereupon be binding on all parties concerned in such dispute and shall not be called in question in any Court." (Emphasis added.)
3. It is the defendant's case that the words to which we have added emphasis are contained in a written law and as such the court below had no choice but to strike out the plaintiff's action. The learned judge in the court below mentioned section 8 of the Enactment but did not address head on the point taken by the defendant. Instead she applied the general principles governing a normal application of this nature and held that the plaintiff's claim was not frivolous or vexatious.
4. When this appeal was called on for hearing, we drew the attention of appellant's counsel to the provisions of Article 121 (1) of the Federal Constitution which reads as follows:
"(1) There shall be two High Courts of coordinate jurisdiction and status, namely—
- one in the States of Malaya, which
shall be known as the High Court in
Malaya and shall have its principal
registry in Kuala Lumpur; and- one in the States of Sabah and
Sarawak, which shall be known as the
High Court in Sabah and Sarawak and
shall have its principal registry at such
place in the States of Sabah and
Sarawak as the Yang di- Pertuan
Agong may determine;and such inferior courts as may be provided by federal law and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.
(1A) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts." (Emphasis added.)
5. In our judgment, pursuant to Article 121 (1) it is only federal law that may regulate the jurisdiction and powers of the courts. State Enactments cannot do so. Accordingly, Section 12 of Selangor Enactment No. 8 of 1941 which purports to oust the jurisdiction of the court is of no effect.
6. Mr. Pathmanathan frankly conceded that he could not go forward on his appeal in the light of Article 121(1). He however urged us to exercise our discretion so as not to punish his client with the costs of the appeal. Mr. Anantham for the respondent did not press for a taxation of the costs. Accordingly, we dismissed the appeal, affirmed the orders of the High Court and ordered the deposit in court to be paid out to the respondent as its costs in lieu of taxation.
Dated June 4, 2004
Dato' Gopal Sri Ram Judge,
Court of Appeal Malaysia
Putrajaya
Counsel for the appellant: M. Pathmanathan
Solicitors for the appellant: : T/n M. Pathmanathan & Co.
Counsel for the respondent: K. Anantham
Solicitors for the respondent: T/n Skrine