Kuching, April 5, 2012: The High Court here has ruled that Eri anak Ajok was irrationally sacked as the village headman of Kampung Emplas in Simunjan district by the state government last year.
The judge Datuk Rhodzariah Bujang made the ruling today after hearing an application for the judicial review of Eri’s termination as the tuai rumah or village headman.
Eri, who was elected the Tuai Rumah in 1961, named the Simunjan district officer as the first respondent, the director of the Human Resources Division in the Chief Minister’s Department as the second respondent and the Resident of Samarahan Division as the third respondent in his application for the judicial review.
In her ruling, the judge said the termination was irrationally made through a letter signed by the director of the Human Resources Division.
“The reason for saying this is that. The applicant was only informed of the termination 2 ½ months after it took effect and he was paid the honorarium 4 ½ months later.
“With respect to the respondents and fully acknowledging that they are vested with a complete discretion on who to appoint as Tuai Rumah, the inordinate delay in conveying the decision on the termination is in complete defiance of reason and logic,” she said, adding that the late communication of the termination has satisfied the criteria of irrationality.
The judge said the decision to terminate, even if the option of payment of the honorarium was chosen, must logically and of necessity be communicated to a Tuai Rumah before the effective date of termination or at the very least, on the very day of the termination itself and ideally, the honorarium be paid at the same time as when the decision is communicated.
“With respect to the respondents, I am compelled to ask this pertinent question: What is the use and where lies the logic of telling a man that he is no longer the anointed leader long after his appointment has been revoked?
“It is not only unfair to the applicant but to the community he serves for there are ramifications following such a delay.
“A Tuai Rumah in that same position the applicant would and could have happily performed his official duties as Tuai Rumah such as the common act of certifying or verifying documents for his people when in fact he was no longer holding the post as one.
“In that circumstance, the certification or verification would be rendered invalid and may even have legal repercussions, to the owner of the documents.
“Therefore, the act of notifying him of the termination only so many months after the effective date, even if one were to excuse the delay in payment of the honorarium, has rendered the termination bad in law and the letter of termination null and void.
“The decision to terminate him ought to be quashed,” she said.
In allowing the application for the judicial review, the judge ordered that the applicant be paid arrears from April 2011 until to date, but minus the one month honorarium which had been paid to him following the void termination letter.
Rohdzariah also ordered the respondents to pay RM3,000 as the cost of the summons in chambers and RM7,000 for the application.
The judge, however, ruled that the Circular Memorandum, dated Oct 2, 1980, regulating the terms and conditions of appointment of a Ketua Kaum as valid.
“Firstly, it is stated in the Circular at clause 6.1 thereof that a Ketua Kaum is not a government officer.
“It is then provided in the Circular that the power of appointment lies with the State Secretary who may delegate his authority to the Resident of each Division in the State and in respect of termination or revocation of the same, the applicable provision is Clause 3.4 thereof which states as follows:
“The appointment in the Ketua Kaum Service is made at the pleasure of the Government and may be determined by either side on giving one month’s notice or in lieu of notice to pay an equivalent of one month’s honorarium.”
“This Circular therefore proves that the applicant’s appointment as a Tuai Rumah is contractual and it being clearly stated to be at the pleasure of the State Government, means that the appointment is at the sole discretion of the appointing authority.
“Though it cannot be denied that in the days of old, prior to this Circular, a Tuai Rumah was appointed by way of ‘adat’ or tradition based on the support the appointee enjoyed from the majority of the households in the longhouse, such consideration is no longer the determinating factor in the post Circular period.
“And in this case, the applicant cannot argue that the Circular does not apply to him because he was formally appointed after it came into effect and his appointment, prior to the termination, was made under it.
“The terms and conditions therefore bind him and the prerogative of the appointment lies solely with the State Government.
“Thus, even though there is probability to the applicant’s assertion that he still enjoys the support and confidence of the majority of the households in his longhouse, sadly for him this is not a ground for him to continue to cling on to his post as Tuai Rumah,” she said.
“Since the applicant held the office of Tuai Rumah at the pleasure of the State Government, the grounds for terminating his appointment is not open for examination by me,” the judge said.
Eri was represented by See Chee How of Baru Bian Advocates & Solicitors, while the three respondents were represented by the State Legal Counsel Saferi Ali of the State Attorney-General’s Chambers.
Ends
