Sabah lawyers to pursue judicial review of 40% special grant in Court of Appeal after stay decision

KOTA KINABALU: The Sabah Law Society (SLS) will not be deterred after its efforts to hold a judicial review against the Federal Government’s failure to conduct a review of the 40% special grant due to Sabah under the Constitution met with a stumbling block.

Its president Roger Chin said High Court Judge Datuk Ismail Brahim had granted the Federal Government's application to stay (suspend) SLS' judicial review proceedings in the High Court on Thursday (Feb 2).

He said the Federal Attorney General (AG) had appealed the High Court's decision delivered on Nov 11 last year to permit SLS to proceed with their application for judicial review in respect of Sabah's 40% entitlement.

“This means SLS will first have to successfully defend the High Court's decision given on Nov 11 before the judicial review can proceed further to a full hearing.

“As SLS brought this judicial review as a public interest litigation ultimately for the people of Sabah, SLS assures the people that they would rigorously oppose the AG'S appeal in the Court of Appeal.

“SLS will also request the Court of Appeal to hear the appeal as soon as possible. SLS shall keep the public informed on further developments of this case,” Chin said, in a brief statement on Thursday.

In granting SLS’ application for leave for judicial review against the Federal Government last November, Justice Ismail had found that SLS had the locus standi to apply for the judicial review as it was a public interest litigation.

Justice Ismail also found that SLS' case was for the breach of the constitutional duty to pay the 40% entitlement for the Lost Years (1974 to 2021) which was a "justiciable" (a matter that can be decided for legal principles by a court).

Following that, the SLS had earlier last month said it was informed by the Attorney General’s Chambers that the Federal Government had gone to the Court of Appeal to set aside the High Court’s decision and also applied to the Kota Kinabalu High Court for a stay.

SLS had filed for the judicial review on June 9 to overturn Putrajaya's gazettement of the RM125.6mil annual grant for Sabah, saying it was not in line with the state's revenue rights under the Malaysia Agreement 1963 (MA63).

The judicial review application was filed against the government at the High Court of Sabah and Sarawak by SLS lawyers Messrs J Marimuttu & Partners.

The special annual grant intended to be given to Sabah from 2022 to 2026 was jointly announced by the federal and state governments on April 14, 2022.

Chin had said then that the SLS would be challenging the federal and state government announcements and the subsequent gazette publications of the grants on the basis that it was ultra vires to the Constitution.

He said that the April 20 gazette publication was based on an order under Article 112D of the Federal Constitution.

However, when the grant was announced by the federal and state governments, he said, it was clearly stated that the agreement was done without prejudice.

But, he added, the federal government gazette order under Article 112D made no mention of the condition "without prejudice."

"SLS is of the view that both the announcements made by the federal government on April 14, and the Order published in Federal Gazette on April 20 purportedly under Article 112D are inherently inconsistent," he said.

As such, Chin claimed that the announcement of the Order and the gazette publication were a breach of the requirements of the federal government’s grants to Sabah which should be based on the 40% revenue derived from the state.

In supporting the SLS suit, the Sabah government had also been included as a second respondent to the judicial review application on Nov 11.

Representing the state government, lawyer Datuk Fuad Tengku Ahmad said that the state government joined the action to make sure that the Federal Government was accountable for all the years (since 1974) that it failed to pay the 40% grant to the state government.

He said that the 2022 Special Annual Grant signed between the state and the Federal Government should not be mixed up with the constitutional requirement of the Federal Government to the state.

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