DISSENTING OPINION OF
MARUMOTO, J.I dissent. My reason for dissenting in this case is that for this court to assume jurisdiction over this appeal will in effect be to tamper with the jurisdiction of this court as limited by the State constitution and the statute implementing the constitutional provision.
Under the constitution, this court has power to promulgate rules relating to practice, process, procedure, and appeals. But it has no say regarding its jurisdiction. The establishment of the jurisdiction of any court is a matter only within the competence of the legislature.
Article V, section 1, of the constitution states that this court has original and appellate jurisdiction “as provided by law.”
This case invokes the appellate jurisdiction of this court.
The provision of law regarding the appellate jurisdiction of this court is set forth in HRS § 602-5, where it is stated: “The supreme court shall have appellate jurisdiction to hear and determine all questions of law, or of mixed law and fact, which are properly brought before it on * # # appeal duly perfected from any other court * * * according to law”. (Emphasis supplied.)
Except in Delaware, denial by the trial court of a motion for summary judgment is uniformly held to be an interlocutory judgment, and not appealable except in compliance with a statute authorizing appeals from *383interlocutory judgments. 6 Moore’s Federal Practice §56.21 [2], p. 2788 (2d ed. 1948); 3 Barron & Holtzoff, Federal Practice and Procedure § 1242, p. 196 (Rules ed. 1958).
In Delaware, it is held that a denial of a motion for summary judgment is appealable. Hessler, Inc. v. Farrell, 226 A.2d 708 (Del. 1967); Monroe Park Apartments Corp. v. Bennett, 232 A.2d 105 (Del. 1967). But that is so because Article 4, section 11-1 (a) of the constitution of that state vests the supreme court with jurisdiction to receive appeals from superior courts in civil causes and to determine all matters of appeal “in the interlocutory or final judgments” of such courts in civil causes.
Under HRS § 641-2, an interlocutory judgment of a circuit court may be appealed to this court only upon allowance of the appeal by the circuit court when it deems the same advisable for the more speedy termination of the litigation, and the refusal of the circuit court to allow the appeal is not reviewable by this court.
In this case, defendant did not seek the necessary allowance of appeal from the circuit court. Thus, this appeal has not been “properly brought before” this court, and has not been “duly perfected * * * according to law”.
The majority attempts to bring this appeal within the jurisdictional limit of this court by equating this case with Monette v. Benjamin, 52 Haw. 27, 467 P.2d 574 (1970).
In Monette, the circuit court order appealed from was final in its effect upon appellants’ right to raise in the district court, under the affidavits then on file, the question of jurisdiction of that court over the summary possession action which was remanded to it for further proceedings.
The majority says that the denial by the circuit court of defendant’s motion for summary judgment in this case is like the order in Monette in that it is final as to the right of defendant “to raise the issue whether the trial *384court lacked jurisdiction to try him for statements made by him as a member of our legislature/’ in the light of the privilege accorded to legislators in Article III, section 8, of the constitution.
Monette is not apposite. Unlike the order in that case, which had the effect of foreclosing appellants from raising the question of jurisdiction of the district court, the denial of defendant’s motion for summary judgment in this case is in no way concerned with the right of defendant to raise the question of jurisdiction of the circuit court to try him for statements allegedly made in the exercise of his privilege as a legislator.
The basic issue in this case is the meaning of the words, “any statement made or action taken in the exercise of his legislative functions,” as used in the constitution.
Under HRS § 603-21, the circuit court has the original jurisdiction to construe and apply any constitutional provision. By denying defendant’s motion for summary judgment, the circuit court has not construed or applied the constitutional provision in question here.
The circuit court is not required to give any reason for denying a motion for summary judgment. It has not given its reason in this case. Thus, we are in the dark regarding the precise basis on which the motion here was denied. However, from the nature of the proceeding, we may assume that the denial was based on the fact that the court was not satisfied that the materials on file, which it was authorized to consider in ruling on the motion, provided a sufficient factual context in which to determine the meaning, scope, and application of the constitutional provision.