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Handing over of Labuan was 'act of State'

Published on: Tuesday, May 06, 2014

Kota Kinabalu: High Court Justice Chew Soo Ho Monday adjourned the landmark case between Tan Sri Harris Mohd Salleh (defendant) and James Albanus @ Richard (plaintiff) over the alleged hasty and improper surrender of Labuan Island to become a Federal Territory on April 16, 1984.

The judge, after hearing oral arguments on preliminary issues from counsels of both parties, would make a decision on the arguments on May 27.

The judge asked both counsels to present the crux of the matter relevant to the case and not dibble outside the perimeter.

He dismissed attempts to read provisions of the Constitution of India into the case touching on the Federal Constitution as well as immigration power and citizenship.

Counsel Trevor Maringking for Harris put up the preliminary issues of the locus standi of the plaintiff Albanus, whether Albanus was eligible as an individual to sue Harris, (with reference to decided case of Perkara Guaman Sivil No. MTI-22-1809 Tahun 2008 [2013] 1 LNS1160) and whether Harris personally had surrendered Labuan to the Federal Government in 1984, in objection to the plaintiff's legal action.

"The plaintiff is not a person entitled to any legal character or to any proprietary rights in the island of Labuan," said Maringking.

Maringking touched on Section 41 of the Specific Relief Act, when asked by the judge to show why there was no locus standi, while plaintiff's counsel Nurul Rafeeqa touched on Article 161E on the safeguards for Sabah and Sarawak.

Justice Chew spoke out on the difference between land alienation as in the Sabah Land Ordinance and alteration of boundary as per Article 2 of the Federal Constitution in clarification of Rafeeqa's submission.

Maringking started off by speaking on the Federal Territory of Labuan Enactment 1984 and the Conference of Rulers that consented to the passing of the Constitution (Amendment) Bill 1984 to alter the boundary of the State of Sabah for the creation of Labuan as a Federal Territory pursuant to Article 2 of the Federal Constitution.

By virtue of Article 2 of the Federal Constitution, a federal law altering the boundaries of a State shall not be passed without the consent of that State (expressed by a law made by the Legislature of that State) and the consent of the Conference of Rulers.

Maringking: "By the enactment of this law (the Federal Territory of Labuan Enactment 1984), the Federal Territory of Labuan was created, pursuant to all laws being complied with.

"In fact the making of Labuan a Federal Territory on April 16, 1984 was a political decision and the court has no jurisdiction or not a forum convenient to examine an act of state or decision made by Parliament or the State Legislative Assembly on political policy provided that it was done within the power of the legislature."

"It is submitted that the making of Labuan a Federal Territory was an act of state, namely the Sabah State Government and not by the defendant in his personal capacity. This court is entitled to take judicial notice on this matter and which this court has no jurisdiction to investigate and/or determine, with reference to Sinha & Dheehaj - Legal Dictionary4.

"This action is not brought by the plaintiff as a representative of the State of Sabah and its citizens who he alleged to suffer financial and social loss for generations."

Maringking asked the court to dismiss the plaintiff's action under Order 33 Rule 5 citing three case law authorities - Tun Mustapha Bin Datu Harun v Legislative Assembly of State of Sabah & Ors [1986] 2 MLJ 388, The Government of the State of Kelantan v The Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al-Haj [1963] 29 MLJ 355, and Fan Yew Teng v Government of Malaysia [1976] 2 MLJ 262.

Harris has counterclaimed for defamation against the plaintiff James Albanus @ Richard, and prayed that the court dismiss Albanus @ suit against him, and determine whether the plaintiff's statement against him as published in print newspaper dated March 8, 2012 headlined "Harris sued for giving away Labuan 28 years ago" was defamatory.

Harris was claiming for general, aggravated and exemplary damages of not less than RM500,000 or to be assessed together with interest and costs and an injunction to restrain the plaintiff from publishing further libel or statements with similar defamatory comments and insinuations that put him into embarrassment, exposed to public hatred, ridiculed and gravely injured in his feeling and reputation and suffered distress and loss and damage.

Harris deemed that the statement of the plaintiff in the news article bore the meanings and was understood to bear the meaning that he (Harris) had surreptitiously surrendered or transferred the island of Labuan to the Federal Government in unconstitutional manner for his own benefit or financial gain and had completely disregarded the economic well-being of the State of Sabah or its people or the Labuan people in transferring the administration of Labuan to the Federal Government.

Further Harris deemed that the statement of the plaintiff in the article bore the meanings and was understood to bear the meaning that Harris had personally caused the State of Sabah to suffer financial loss and/or not financially well off today by making Labuan a Federal Territory and that he had broken or ignored the State Constitution or Federal Law when allowing Labuan to become a Federal Territory and finally that Harris is an untrustworthy political leader of Sabah who had undertaken unlawfully the creation of the Federal Territory of Labuan by the State Cabinet and/or the Legislative Assembly.

Plaintiff's counsel Rafeeqa contended that her client is a Sabahan born before the formation of Malaysia and was entitled to take legal action against Harris.

"When Sabah joined Malaysia it did so with certain guarantees for all time and in perpetuity for Sabahans for all generations to come, come what may. The Constitution was under no circumstances to be amended or changed or in any way tinkered with to water down, dilute or tweak with these rights.

"At the heart of the dispute is the claim by the plaintiff for a declaration that the defendant acted unlawfully in the surrender of Labuan.

The plaintiff is also claiming damages, costs and statutory interest.

In his Statement of Claim the plaintiff claims that the defendant had not sought the opinions, feelings and concerns of Sabah citizens regarding the creation of Labuan as a Federal Territory.

"The defendant himself had admitted that even before the second reading of the Labuan Bill in the State Legislative Assembly he had already signed an agreement with the Federal Government.

"Secondly the plaintiff claims that the defendant has not taken a referendum in respect of Labuan.

Furthermore, the plaintiff claims that the defendant had acted unilaterally and individually without compliance with the relevant constitutional safeguards and also the well being of the citizenry of the State of Sabah and as a result of such rash and unconstitutional action, the State Government and the citizenry of Sabah suffered unquantifiable financial and social loss at the material time and for generations to come."