Judicial Commissioner George Varughese said Nai Ninn Sararaksh and Ho Choon Teik had no legal standing to file an originating summons against six defendants to challenge the actions of the Penang Burmese Trust as they were not of Burmese descent.
Both are Malaysians but Nai is of Thai origin while Ho is Chinese.
The judge also allowed a declaration that the Penang Burmese Trust was a valid private trust for the benefit of the Burmese community in the state.
Varughese said Mohamed Apandi Ali, who was attorney-general between July 2015 and May 2018, had only considered the representations made by Nai and Ho but had failed to take into account the representations by the six, especially as to why the Penang Burmese Trust was a private trust.
The six are Five Star Heritage Sdn Bhd, Burmese descendants Toon Toolseram, Maung Aung Thou, Moong Bam, Moung Ban Chowi and Maung Shwe Winn.
Varughese said Apandi had not exercised his power under Section 9 of the Government Proceedings Act correctly in his decision making process and as such his exercise of discretion was susceptible to judicial review.
“I find that the attorney-general misdirected himself in law and had failed to consider relevant matters and acted unreasonably,” he said in his 59-page judgment, released last week, in allowing the judicial review by the six.
He had delivered his oral ruling in September and the attorney-general, Nai and Ho, subsequently filed an appeal.
Varughese also noted in his judgment that the Penang Burmese Trust had become a private trust pursuant to an agreement between the Thai and Burmese trustees.
A High Court order in 1994 had allowed the establishment of separate trusts for the Thais and Burmese and the partition and subdivision of a plot of land (lot 104), which effectively terminated the original Thai-Burmese Trust.
This case has a chequered origin. In 1845, the East India Company, on behalf of Queen Victoria of the United Kingdom, established a public trust to manage the temple affairs of the Siamese (Thai) and Burmese inhabitants on the island.
The company gained Penang in 1786 and established a trading post after the Sultan of Kedah ceded the island to ensure the former’s protection against the threat posed by its Siamese and Burmese neighbours.
A piece of land – now on lot 104, Seksyen 4, Bandar Georgetown, Daerah Timur Laut – was alienated to both communities.
In November 1994, the trustees of both communities made a joint application to subdivide the lot (104) into lots 2102 and 2103, resulting in two separate and distinct trusts to be established and administered for the Thai and Burmese communities.
Since the Burmese trust had no revenue due to its historical background, it entered into a joint venture agreement with Airmas Development Sdn Bhd and formed Five Star Heritage as its corporate vehicle to develop part of lot 2103, which was further divided into lots 10029 and 10030.
Lot 10029 was registered under Five Star Heritage while lot 10030 was in the name of Toon, Maung Aung Thou, Moong, Moung and Maung Shwe Winn.
In 2014, Nai and Ho filed an originating summons to challenge the 1994 court order, stating the subdivision of plot 10029 for commercial purposes could not be done as the property belonged to a public charitable trust.
They wrote to Apandi in May 2016 to obtain consent to begin legal action against the Penang Burmese Trust, as under the Government Proceedings Act he is the custodian of all of public trust.
The six then filed an application for judicial review to challenge his decision to grant the consent.