Malaysia's asset management company Danaharta Nasional Berhad's immunity from court injunctions does not violate the constitutional provision of access to justice, the Federal Court ruled today.

Chief Justice Ahmad Fairuz Sheikh Abdul Halim said although Section 72 of the Danaharta Nasional Berhad Act 1998 prevents a certain category of people from obtaining injunctions against the company, it is still permissible and reasonable under the law.

"Even though Section 72 is discriminatory, it still does not violate Article 8 (1) of the Federal Constitution (which provides each citizen an equal right of access to justice) because it is based on a reasonable or permissible classification," he said.

The Chief Justice and four other judges made the unanimous decision after they allowed Danaharta's appeal to overturn a Court of Appeal decision in declaring Section 72 of the Act unconstitutional.

Not absolute

The court also set aside an injunction issued by the Appeals Court in November 2002 which barred Danaharta from disposing four plots of lands which were charged by the respondent Kekatong Sdn Bhd to secure a loan.

In the oral judgment, Ahmad Fairuz said that the common law rights of access to justice is not absolute and can be modified from time to time.

He said Section 3 of the Civil Law Act directs the court to apply the common law "only in so far as the circumstances permit and where no provisions had been made by law".

"We are also of the view that access to justice is a meaningless concept without the existence of the court. Article 121 of the Constitution in establishing the court provided that the court shall have jurisdiction and power as conferred by or under the federal law. Section 72 is such a law," he said.

Ahmad Fairuz who sat with Federal Court judges Mohd Nor Ahmad, Pajan Singh Gill, Rahmah Hussein and Court of Appeal judge S Augustine Paul, informed parties that a written judgment will be handed down later.

Issue over land

On Nov 21, 2002, the Court of Appeal allowed an appeal by Kekatong against a High Court decision to dismiss its application to stop Danaharta from selling land in Jalan Stonor during Danaharta's sixth property tender between April 1 and May 2 last year.

The Court of Appeal held that the High Court erred in refusing to grant an injunction to Kekatong against the national asset management company on the grounds that the High Court was barred by Section 72 of the Act.

Kekatong had charged the land with Bumiputra-Commerce Bank Bhd (then Bank Bumiputra Malaysia Bhd) as collateral for a loan secured by another company, Kredin Sdn Bhd, which is now known as Maril-Rionebel (M) Sdn Bhd.

The loan was taken on May 28 1983 and should be settled by May 27 1984. The land has earlier been foreclosed by Danaharta which has taken over the non-performing loans of Kredin.

Lawyers Tommy Thomas and Bastian Pius Vendargon represented Danaharta and Kekatong respectively while Attorney-General Abdul Gani Patail acted as an intervener.