Sabah govt intervenes in appeal

KOTA KINABALU (May 16): The Sabah state government on Thursday intervened in the Federal Attorney General’s appeal against the High Court decision to grant Sabah Law Society (SLS) leave to challenge the 40 per cent Special Interim Grant provisions.

Its counsel, Tengku Datuk Fuad Tengku Ahmad, made the application to intervene in the appeal which was granted by the Court of Appeal.

The Attorney-General’s Chambers (AGC) did not raise any objection to the application.

However, SLS represented by counsels Dr David Fung, Jeyan T.M Marimuttu, and Janice Junie Lim, objected to the application saying that the Sabah government did not have the right to be heard since the appeal only concerns leave matters.

Fuad in his argument said that the rights of the Sabah Government against the Federal Government under the Federal Constitution would be negatively affected if it was excluded from Thursday’s hearing.

“If the Sabah Government did not intervene today, then there was a risk that its rights to challenge the Federal Government in respect of the 40 per cent Special Grant provisions could be extinguished without ever being heard,” he said.

The Court of Appeal has adjourned its decision on the Federal Government’s appeal against the leave granted to the SLS to seek a judicial review regarding the state’s 40 per cent grant revenue.

Court of Appeal judges Datuk Ravinthran N. Paramaguru, Datuk Mohd Nazlan Mohd Ghazali, and Datuk Dr Choo Kah Sing fixed May 24 for case management to set the date for the decision after hearing submissions from all parties.

The Federal Government is appealing against the Kota Kinabalu High Court’s decision on Nov 11, 2022, to grant SLS leave to seek judicial review regarding the matter to compel the return of 40 per cent of Federal revenue earned from the state according to the Federal Constitution.

Senior federal counsels from Attorney-General’s Chambers (AGC), Shamsul Bolhassan and Ahmad Hanir Hambaly @ Arwi; as well as federal counsels V Krishna Priya @ Venugopal, and Fazriel Fardiansyah Abdul Kadir acted for the government.

At the outset, Shamsul argued that the 40 per cent special grant provisions under Articles 112C and 112D of the Federal Constitution are not open to a court challenge because they concern non-justiciable financial and political considerations.

When met by reporters, Fuad said the grant could only be obtained upon the agreement of both governments and must take into account the financial position of the Federal government; the needs of Sabah; and the adequacy of funding state services such as roads, water and electricity.

He said the Sabah government continues to actively seek the 40 per cent special grant through the constitutional procedures set out in the grant provisions of the Federal Constitution.

“There is no need for SLS to make any judicial review because the Sabah government in cooperation with the Federal government already undertaking the review. Therefore we see this court action is unnecessary,” he said.

On Nov 11, 2022, Justice Ismail Brahim granted SLS’s application for leave for the judicial review ruling that SLS had locus standi for judicial review as it was a public interest litigation.

The AGC obtained a stay order to stop the High Court from hearing the merits of the case pending the appeal.

SLS filed the judicial review application in 2022, to overturn the Federal Government’s gazette of an RM125.6 million annual grant for Sabah, claiming that it violated the state’s revenue rights under the Malaysia Agreement 1963 (MA63).

SLS immediate past president Datuk Roger Chin said their legal team did their best to argue their case.

“Hopefully that is sufficient to bring us home,” he said.

SLS first applied for the judicial review on June of 2022 and in November the same year was granted leave by the High Court. However, the federal government obtained a stay order pending the appeal.

Only five reporters were allowed in the courtroom to hear the case on Thursday.

There was also heavy police presence at the court building to maintain security.

Earlier, leaders and members from Gabungan Rakyat Sabah and Parti Warisan gathered at the court compound as early as 8.30am for the hearing.

Among those present were former chief ministers Tan Sri Joseph Pairin Kitingan, Datuk Seri Mohd Shafie Apdal and Datuk Seri Yong Teck Lee. Also in attendance were former Dewan Rakyat speaker Tan Sri Pandikar Amin Mulia and former deputy chief minister Datuk Seri Wilfred Madius Tangau.

Following the adjournment, Parti Warisan president Datuk Seri Mohd Shafie Apdal walked out from the courtroom to meet with the media.

“We leave it to the judge but I can’t make any comment on the content it’s going to be, but it’s quite clear the state government seems to be…,” stopping short and chuckling before continuing, “either one side or the other side protecting the interest of Sabah or the other side or both,” he said without elaborating further.

Mohd Shafie added that what is important is to wait for the judgement, hoping for it to be done sooner.

“We are here to show our support as this is a Sabah interest, a constitution so it is indeed very crucial for us to be present to hear what is the process like because we are also part and parcel of policy makers in Parliament, so it is very crucial for us to know and to understand what has been deliberated,” he said.

Sabah STAR president Datuk Seri Dr Jeffrey Kitingan said the people of Sabah and leaders of political parties should support the cause 100 per cent as it is about our rights and revenue.

“We hope the assurance from the Prime Minister to uphold the rights of Sabahans will be fulfilled, or we will be poor and unable to continue developing,” he said when met earlier.
Jeffrey, a pioneer in championing the state’s rights, was detained under the Internal Security Act 33 years ago for raising the issue then.