MCPX

The decision on the appeal by former chief minister Chong Kah Kiat, chairman of the Kudat Thean Hou Charitable Foundation, against the cancellation of the statue project will be known on Feb 13 next year.

On Nov 15 last year, the Kudat Town Board withdrew its Feb 8, 2006 letter of approval to build the statute on an approximately 2.3 acre piece of private land held under town lease in Kudat.

Chong is seeking an order that the letter of approval is valid and binding on all parties concerned. Chong resigned from the state cabinet on April 13 last year over the statue and other matters over which he had been unhappy.

The case itself, it was re-confirmed, will go on full trial on Jan 12 next year.

In the proceedings held in chambers yesterday, Yew also ordered the Kudat Town Board and the Central Town and Country Planning Board, the first and second respondents, to file their affidavits within 14 days.

The plaintiff, Chong, will reply seven days after that.

Earlier, Yew dismissed the State Attorney-General, Roderic Fernandez’s, application to strike out Chong’s appeal against the decision of the Kudat Town Board last year to withdraw the approval to build the statue in Kudat.

Yew Jen was supposed to have ruled on Oct 28 on a Sept 10 application by Fernandez to strike out the suit. Instead, the court then advised both parties to withdraw their arguments on the application to strike out Chong’s originating motion filed on Dec 12 last year.

Chief Minister Musa Aman and former State Secretary, KY Mustafa, are first and second defendants; the second and first respondents; and the third and fourth defendants respectively.

According to the case history of the suit, the Immigration Department in Kota Kinabalu had issued a letter of approval to Thean Hou’s contractor, Key Summit Sdn Bhd, for visas to be issued to 11 craftsmen from China to enter the country and assemble the granite carvings of the statue.

The reason for the withdrawal, as cited in court documents, was that the site and building plans had not been approved by the Central Town and Country Planning Board, the second respondent, for non-compliance with Section 15 of the Town and Country Planning Ordinance.

According to Ansari bin Abdullah, the counsel for Chong, the plaintiff has 10 witnesses.

In his affidavit-in-support, Chong told the court that: "On May 5, 2006, I received a letter from the executive secretary of the Kudat Town Board.

"The letter stated that he had been directed by the state minister of local government and housing to inform me that the construction of the statue was to be temporarily suspended pending a further directive from the chief minister."

Three other key dates figure in Chong’s affidavit-in-support:

• On June 26, 2006, the permanent secretary of the Local Government Ministry, Ujang Sulani, also the chairman of the Central Town and Country Planning Board, issued a written directive to the commissioner/executive secretary of the Kudat Town Board, the first respondent, to order the suspension of the works on the project until an approval had been obtained from the chief minister.
  
  According to the directive, "the ministry had received objections from various parties on the construction of the statue, as well as appeals for the statue to be sited elsewhere", which the ministry had referred to the chief minister.
   
• In June 23, 2006, the Sabah state secretary issued a letter to the commissioner/executive secretary of the Kudat Town Board, the first respondent, stating that "the government had, after considering all the circumstances, decided the works on the project should stop immediately".
   
• On July 7, 2006, the mufti of Sabah, "purportedly issued a fatwa (religious decree) advising that the construction be stopped in order to protect the sensitivities of the followers of Islam".

Chong added further in his affidavit-in-support that the decision to withdraw the approval for the project was made in breach of the rules of natural justice and that the Kudat Town Board, in accepting the various directives of the chief minister, the Central Town and Country Planning Board and the mufti of Sabah, failed to provide the foundation an opportunity to be heard.

Chong contended that the advice of the Sabah mufti, dated July 7, 2006 by way of a fatwa, was bad in law, being based on the wrong premise that the statute was adjacent to Masjid As-Syarikin in Kudat.

"The withdrawal is unconstitutional as it contravened the provisions of Article 11 of the federal constitution (freedom of religion)," said Chong.

"The first respondent’s conduct in withdrawing the approval was mala fide, unconscionable and inequitable, and the second respondent had no legal authority to direct the first respondent to withdraw the approval."

Chong is also claiming that respondents pay compensation for the losses suffered by the foundation, costs for counsel be awarded against the respondents; and other costs the court deems fit.