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Umno turtle eggs case: Leave bid on Jan. 29
Published on: Wednesday, January 03, 2018

Kota Kinabalu: The High Court here has set Jan. 29 to hear the leave application for a judicial review by a Sabahan lawyer disputing the filing of a suit by Rural and Regional Development Minister Dato Ismail Sabri Yaakob against the Daily Express and its Chief Editor James Sarda in the Kuala Lumpur High Court on grounds that it is against the Malaysia Agreement provision of separate courts of jurisdiction and, by that virtue, the interests of all legal practitioners in Sabah and Sarawak.

Ismail Sabri had sued the paper for publishing three articles on protected turtle eggs served at an Umno function in Sabah which he attended two years ago.

However, the suit was filed in the High Court of Malaya, instead of in Sabah, where the alleged incident happened and all of the witnesses and defendants also reside.


High Court Judge Ravinthran N. Paramaguru fixed the date on Tuesday, which was initially fixed for hearing, for parties to fully ventilate their respective positions.

Lawyer Marcel Jude Joseph (pic), in November 2017, in filing the leave application for a judicial review, named the Registrar of the High Court of Malaya High Court in Kuala Lumpur as the first respondent, Ismail Sabri as the second respondent and Messrs Kesavan, Advocates and Solicitors as the third respondent.

Marcel is seeking an order of certiorari to quash the registration of the Writ issued by the first respondent in respect of the said suit filed by the third respondent for Ismail Sabri.

He is also seeking an order of prohibition to the first respondent to refrain whether by himself or his servants or agent from registering or endorsing or undertaking any other act incidental thereto in respect of the said suit filed by third respondent for Ismail Sabri.

Marcel also seek a declaration that the registration of the said suit by the first respondent and filing in the High Court of Malaya by the third respondent on behalf of Ismail Sabri is unconstitutional ultra vires null and void.

He also applied for costs and any other relief deemed fit by the court.


Earlier, in Tuesday's proceedings, Senior Federal Counsel Andi Razaliya, representing the first respondent, told the court that they are objecting the application but needed more time.

Marcel acted for himself.

In his statement of claim, Marcel claimed that the registration of the said Suit by first respondent filed by the third respondent on behalf of the second respondent contravenes the relevant provisions of the Malaysia Agreement 1963 which expressly states and secures the autonomy of the state of Sabah in the Federation of Malaysia.

Marcel also stated that the registration of the said suit by the first respondent filed by the third respondent on behalf of Ismail Sabri offends the doctrine of coordinate jurisdiction guaranteed under Article 121 of the Federal Constitution; The High Court of Sabah and Sarawak enjoys the status of coordinate jurisdiction with the High Court of Malaya. This is expressed in Article 121 of the Federal Constitution.

He stated that coordinate jurisdiction as set down in Article 121 of the Federal Constitution means that the jurisdiction which is possessed by courts of equal rank, degree, or authority, equally competent to deal with matters in question whether such matter belongs to the same or different systems.

It also mean equal of the same rank, order, degree or importance and not subordinate.


The implications are serious not only for practitioners such as the Applicant but also for litigants from the High Court of Sabah and Sarawak. There will be a preconceived notion even if such notion is unjustified that litigants from Sabah and Sarawak are disadvantaged or handicapped in the disposal of cases and the adjudication of justice when compared with the litigants and practitioners from the High Court of Malaya.

The same preconceived notion would also affect the members of the bench who come from the states of Sabah and Sarawak.

He added that the registration of the civil suit by the first respondent filed by the third respondent on behalf of the second respondent would undermine the independence and the right of audience and the constitutional position and privilege of the Advocates and Solicitors of the High Court of Sabah and Sarawak and contravene Article 161B of the Federal Constitution.

Marcel also claimed that the registration of the said suit by the first respondent filed by the third respondent on behalf of the second respondent offends the doctrine of forum convenient because the alleged cause of action arose and the material facts took place in Kota Kinabalu, the State of Sabah, Malaysia.

These facts are set out in the statement of claim filed by the third respondent on behalf of the second respondent.

Furthermore the defendants in the said civil suit registered by the first respondent filed by the third respondent on behalf of the second respondent are in Kota Kinabalu, Sabah and operating a newspaper known as the Daily Express which has statewide circulation in Sabah, Malaysia.

The registration of the said suit by the first respondent filed by the third respondent on behalf of the second respondent has witnesses mostly if not all residing and or working in the State of Sabah, Malaysia and the said Suit if allowed to continue will set an unhealthy precedent for the future conduct of litigation for litigants and witnesses in the State of Sabah, Malaysia as they will be put to much inconvenience costs and expenses in dealing with court cases and appearances thereunder in respects of cases filed in the High Court in Malaya instead of the High of Sabah and Sarawak, he said.

Marcel added that the registration of the said suit has created a serious and the injustice of exposing the defendants in Sabah to the pluralism of subjecting the defendants in Sabah of exposure to multiple legal systems and the law thereunder which is unlawful and unconstitutional in Malaysia and Sabah. - Jo Ann Mool

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