style="text-transform: uppercase;">Kota Kinabalu: Maljis Jaksa-Jaksa Pendamai Sabah (Majaps or Council of Justices of the Peace) became the latest to join the chorus expressing concern over "the derogation of the jurisdiction of the High Court of Sabah and Sarawak" to preside over cases on offences allegedly committed in Sabah."There is no Federal legislation that confers power upon the High Court of Malaya to transfer proceedings to the High Court of Sabah and Sarawak and vice versa," its President Datuk Seri Clarence B Malakun stressed in a statement, Tuesday.

He was referring to the ongoing "Turtle Eggs" case controversy Federal Minister of Rural and Regional Development, Datuk Seri Ismail Sabri brought against the Daily Express and its Chief Editor James Sarda (the 1st and 2nd defendants respectively), an episode that allegedly happened in Sandakan, Sabah.

Malakun said the Court of Appeal, in dismissing the defendants' application to strike out the case in KL and have it refiled in Sabah and insisting that the case be heard at the High Court Malaya, had failed to adhere to stare decisis or binding precedent of a Superior Court, that is, the decision of the Federal Court in Fung Beng Tiat v Marid Construction Co. (reported in [1996] 2 MLJ 413).

"Although Fung Beng Tiat dealt with a striking out of a creditor's petition (a bankruptcy case) but the general principle of law espoused in that case is applicable to all civil proceedings.

"The Federal Court held that under Article 121(1) of the Federal Constitution, there are two separate High Courts of Malaysia exercising distinct territorial jurisdiction over different geographical areas of the country i.e. High Court of Malaya and High Court of Sabah and Sarawak, each having jurisdiction over disputes that arise within its territory.

Malakun said the Federal Court had concurred that the bifurcation of territorial jurisdiction as was dealt with by the High Court Malaya in Sykt Nip Kui Cheong Timber Contractor v Safety Life & General Insurance Co Sdn Bhd (reported in [1975] 2 MLJ 115).

"The two High Courts (High Court of Malaya and High Court of Sabah and Sarawak) have 'co-ordinate jurisdiction' and the definition of 'local jurisdiction' in the Courts of Judicature Act 1964 speaks of the territorial jurisdiction of each of the two High Courts of Malaysia, thus, Section 7(2) of the 1964 Act is not to be misconstrued as it simply ameliorated the old Rules of Supreme Court 1957 (Order 11 Rule 1) for convenience to avert unnecessary difficulties arising from the process of the courts in Malaysia – to strengthen the argument that the framers of the 1964 Act recognised the distinctive territorial jurisdiction of the two High Courts of Malaysia – there is, thus, nothing in the Bankruptcy Act or Rules that demonstrates an intention of Parliament to create an exception in bankruptcy cases.

"The issue of which of the two High Courts of Malaysia has jurisdiction over a matter is determined by Section 23 of the 1964 Act (a federal law).

"Since the 1st defendant has its place of business in Kota Kinabalu, Sabah and the 2nd defendant resides in Kota Kinabalu, Sabah, they would come under section 23(1)(b) of the 1964 Act.

"Since the cause of action arose and the facts on which proceedings are based or alleged to have occurred i.e. whether or not the plaintiff had consumed the 'Turtle Eggs' at a restaurant in Sandakan, Sabah [Section 23(1)(a) and (c)] which is within the territorial jurisdiction locally of the High Court of Sabah, it therefore matters not whether it was reported in Kuala Lumpur or anywhere or over the World Wide Web (internet)," he said.

Similarly, Malakun said in criminal cases under Article 121(1) of the Federal Constitution, the two High Courts of Malaysia shall have such jurisdiction that is conferred by federal law i.e. the 1964 Act where Section 22(1) reads with Section 3 do limit the jurisdiction of the two High Courts to the territories locally – that is the jurisdiction of the High Court of Malaya would be confined to the territory of Malaya while that of the High Court of Sabah and Sarawak would be confined to the territories of Sabah and Sarawak.

Therefore, he said, the High Court of Malaya has no jurisdiction over an offence allegedly committed in Sabah and it would be against the Federal Constitution and the 1964 Act to transfer the case where the offence was committed in Sabah to the High Court of Malaya, as the High Court of Sabah and Sarawak have no power to do that even under the power of the Attorney-General under Article 145(3A) of the Federal Constitution to determine which court a case shall be transferred must necessarily be subject to the limitation that it can only transfer a case to a court which has the jurisdiction to hear the case (see PP v Datuk Haji Wasli bin Mohd Said (Criminal Reference No. K44-01-2004).

Hence, he said, the decision of the Court of Appeal in the 'Turtle Eggs' case has also overlooked the restriction on the legal practitioners' right to practice law in Sabah and Sarawak as it would open the floodgate to enable Malayan lawyers to act for litigants in cases where the disputes arose in Sabah or Sarawak but conveniently 'forum-shopped' to have the case filed in the High Court of Malaya outside of its territorial jurisdiction in breach of Article 121(1)(b).

"This right to practice law is one of the recommended safeguards in the Inter-Governmental Committee (IGC) Report where the Federal Court has held that without such recommendations in the IGC Report, the Cobbold Commission and the Malaysia Agreement 1963, there might not be a Malaysia – these are rights entrenched as a safeguard under Article 161B of the Federal Constitution (Datuk Hj Mohammad Tufail bin Mahmud & Ors v Dato Ting Check Sii, reported in [2009] 4 MLJ 165).

"It is also impractical apart from the costs and security factors and the inconvenience of parties and witnesses and evidence to be adduced to be transported to the High Court of Malaya to hear cases of offences that happened in the locality of Sabah.

"This will also cause delay in disposing of cases and is against the Court practice on case management.

The root of it all is that it goes against all rights of the High Court of Sabah and Sarawak as enshrined in the Malaysia Agreement 1963 and against the stare decisis of the case precedents," Malakun said.

He said Majaps, therefore, takes the view that the decision of Court of Appeal in the "Turtle Eggs" case is fundamentally erroneous as it failed to adhere to the doctrine of stare decisis of a superior court where the general principle of law has been clearly set out by the Federal Court in Fung Beng Tiat.

"The Court of Appeal's failure to do so amounts to a wrong application of the law.

The defendants therefore ought to apply for leave to appeal the said decision to the Federal Court to seek redress over such wrongful application of the law in the 'Turtle Eggs' case.

On hindsight, he said it is Majaps' view that resorting to litigation in court should be the last option between disputing parties, especially where cases are so clear cut and a simple humble apology would have resolved such issues, manifesting a truly Malaysian spirit of amicable resolution which will not only save time but costs to all parties concerned.

The case has ignited wide debate, especially among the legal fraternity here, who see it as yet another attempt to deny Sabah certain rights that were promised to it in the Malaysia Agreement at a time when the Prime Minister was promising Sabah that whatever rights taken away unwittingly or deliberately would be returned.

Sabah lawyers and both the Federal and State opposition have also spoken against the development.