April 15 hearing on lawyer’s suit over Easter, Christmas holidays

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KOTA KINABALU: The High Court here has fixed April 15 to hear an application made by lawyer Marcel Jude Joseph who is seeking an injunction to order the Sabah State Legislative Assembly to reinstate three abolished public holidays.

In his statement of claim, the plaintiff named the Dewan Undangan Negeri (State Legislative Assembly) as the sole defendant and prays for the following remedies:-

a) A declaration that the degazetting and abolition by the defendant of the day following Good Friday and Easter Monday as public holidays is unlawful and ultra vires Article 11 of the Federal Constitution and the Holidays Ordinance of Sabah;

(b) A mandatory injunction to the defendant to regazette and reinstate the day following Good Friday and Easter Monday as public holidays under the Holidays Ordinance of Sabah;

(c) A declaration that the degazetting and abolition by the defendant of the day following Christmas Day as public holiday is unlawful and ultra vires Article 11 of the Federal Constitution and the Holidays Ordinance of Sabah;

(d) A mandatory injunction to the defendant to regazette and reinstate the day following Christmas Day as public holiday under the Holidays Ordinance of Sabah;

(e) Costs;

(f) Any other relief deemed fit by this honourable court.

According to Marcel, in the State of Sabah, before 1978, the Christian community enjoyed three public holidays for Easter and two public holidays for Christmas. In 1978, that was abolished to only one public holiday for Easter (i.e Good Friday) and one public holiday for Christmas (i.e. Christmas Day). After 1978, Easter Saturday and Easter Monday and Boxing Day were no longer public holidays. This was because of amendments made to the Holidays Ordinance of Sabah (Sabah Cap. 56) by the defendant as constituted in 1978 or thereabouts. Before 1978, it was stipulated under the Holidays Ordinance that for Easter and Christmas, these were inter alia the gazetted public holidays:-

Good Friday, and the following day Easter Monday

Christmas Day, and the following day

In his statement of claim, Marcel further pleaded that the Easter and Christmas holidays that were degazetted are what is known as religious holidays. A religious holiday is different from other holidays because they are sacred to that religion. A religious holiday is a specific day when members of that religion are required to fulfil their religious obligations and take part in religious ceremonies prescribed by their faith.

In regard to Christmas, Catholic go through four weeks of preparation known as Advent and prior to Easter, they go through with six weeks of preparation known as the season of Lent. During the Holy Week, Catholics have to undergo continuous attendance in church ceremonies which is an exhausting process.

In his statement, Marcel claims that the action of the defendants constituted at that time to degazette the Easter and Christmas holidays are unlawful and ultra vires Article 11 of the Federal Constitution which guarantees freedom of religion to non-Muslims. No enquiry or consent was obtained from the Christian churches in the State of Sabah at the material time nor were the views of the Christian populace sought before the degazetting was undertaken.

1. The defendant represented by the State Attorney General has applied to the High Court for the following orders:-

(a) Whether the court has the power to question the validity of any proceedings in the Legislative Assembly of any State pursuant to Article 72(1) of the Federal Constitution;

(b) Whether the court has the power to question the power of the Legislature to make state laws or amend any state laws as shall be exercised by Bills passed by the Legislative Assembly and assented to by the Yang di-Pertua Negeri as provided under Article 26(1) of the State Constitution; and

whether the plaintiff’s claim is time barred pursuant to Section 3, Part I, item 1 of the Schedule of the Limitation Ordinance (Sabah Cap. 72).

2. If in the event this Honorable Court determines and decides that:-

(i) the court has no power to question the validity of any proceedings in the Legislative Assembly of any State pursuant to Article 72(1) of the Federal Constitution;

(ii) the court has no power to question the power of the Legislature to make state laws or amend any state laws as shall be exercised by Bills passed by the Legislative Assembly and assented to by the Yang di-Pertua Negeri as provided under Article 26(1) of the State Constitution; and

(iii) the Plaintiff’s claim is time barred.

3. The following prayers are sought-

(a) Then pursuant to Order 14A (1) (2) (3) of the Rules of Court 2012, the Plaintiff’s suit herein do be dismissed with cost to be taxed unless otherwise agreed and be paid by the plaintiff to the defendant; and

(b) Such further and/or other relief as this honorable court deems fit and proper to grant.

4. Any such other orders that this honorable court deems fit.