THE Court of Appeal in Kota Kinabalu today reserved its decision on the Federal Attorney-General's Chambers (AGC) appeal against leave granted to the Sabah Law Society (SLS) regarding the State’s special grant.
A three-member bench led by Court of Appeal judge, Justice Datuk Ravinthran N. Paramaguru, fixed May 24 for case management.
The other members of the panel were Datuk Mohd Nazlan Mohd Ghazali, and Datuk Dr Choo Kah Sing.
On Thursday (May 16), the Sabah Law Society, the Federal Attorney’s Chambers, and the Sabah government completed their submissions at the Kota Kinabalu Court Complex.
The SLS first applied for judicial review in June of 2022 and in November the same was granted leave by the High Court. However, the federal government obtained a stay order pending the appeal.
SLS had named the federal government and Sabah government as the first and second respondents, in the issue which revolves around SLS' contention that Sabah has a right to 40 per cent of federal revenue
Earlier, Senior Federal Counsel (SFC) Ahmad Hanir Hambaly @ Arwi who acted for the appellant submitted that leave for judicial review should not be granted because the respondent has no locus standi and the decision on the Special Grant is non-justiciable.
He said the subject matter for the substantive judicial review would be a matter exclusively within the domain of the federal and state governments.
"The ones who will be affected are these two parties and based on this, the respondent does not have the locus standi to initiate a judicial review,” he said.
Ahmad also said the matter was non-justiciable as the decision on the amount of the special grants reviewed under Article 112D of the Federal Constitution is an executive action by both governments.
“One needs to take into account fiscal and administrative considerations which are exclusively within the domain of the executive authorities.
"The formula and the amount of the special grants were achieved based on negotiations between both governments, taking into account the fiscal position of the federal government, the financial position of the state government including state revenues, operating and development expenditures as well as socio-economic development in the state,” he said.
He said policy matters involving financial implications are not within the knowledge of this court.
He also submitted that if the federal and Sabah governments were unable to reach an agreement on this Special Grant, the proper forum would be before an independent assessor under Article 112D(6) of the Federal Constitution, not before this court.
In response, SLS counsel, Dr David Fung said both the federal and state governments had failed their constitutional duty to hold a second review before 1974 and only held it 48 years later.
“We are not saying that they cannot negotiate. But we are asking what happened to the 48 years?", he said.
As for locus standi, Fung said the courts are the guardians of the constitution.
“It is within the court’s discretion to be able to deal with such matters as it is a public interest litigation and when there is a breach of duty, it is for the Courts to decide,” he added.
In their leave application for a judicial review, SLS among others is seeking a declaration that the failure of the first respondent to hold the second review in the year 1974 with the second respondent is a breach and contravention of its constitutional duty stipulated under Article 112D, Clauses (1), (3) and (4) of the Federal Constitution.
They also seek a declaration that 40 per cent entitlement remains due and payable by the first Respondent to the second respondent for each consecutive financial year for the period from the year 1974 to the year 2021.
They demand a declaration that the failure to pay the 40 per cent entitlement by the first respondent to the second respondent for each consecutive financial year for the period from the year 1974 to the year 2021 is a breach of the fundamental right to property of the second respondent and ultimately of the people of Sabah as enshrined under Article 13 of the Federal Constitution.
Outside the courthouse, politicians from both sides of the divide gathered along with hundreds of activists and the public to show their support and send a message that the entire state was united in their stand review Sabah's 40% revenue entitlement
Three former Sabah chief ministers were also among the politicians present at the Kota Kinabalu court complex.
They were Tan Sri Joseph Pairin Kitingan, Datuk Seri Mohd Shafie Apdal, and Datuk Seri Yong Teck Lee.
Other notable figures at the complex were former deputy chief minister Datuk Seri Wilfred Madius Tangau, former Dewan Rakyat speaker Tan Sri Pandikar Amin, and former Sabah agriculture minister Datuk Junz Wong.
More than a hundred police officers were deployed to beef up security at the court complex early this morning.
Politicians from opposing sides in Warisan, Sabah Progressive Party, Upko, Liberal Demokratik Party, Parti Bersatu Sabah, and United Sabah National Organisation also showed up along with state and indigenous rights groups. - The Vibes, May 16, 2024
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