Court sets Sept 14 to hear Putrajaya’s appeal against SIS’ leave for judicial review

KOTA KINABALU: The Court of Appeal has set Sept 14 to hear the Federal Government's appeal against a Kota Kinabalu High Court decision to grant Sabah lawyers leave for judicial review on Putrajaya's constitutional duty to pay 40% to the state.

The Attorney General's Chambers has filed an application to set aside the Nov 11 Kota Kinabalu High Court decision allowing the Sabah Law Society (SLS) leave to seek judicial review on the 40% special grant for Sabah.

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

Kota Kinabalu High Court judge Justice Ismail Brahim had granted SLS’ application on the grounds that it had locus standi to file for a judicial review as it was a public interest case.

In his grounds for allowing leave for judicial review, Justice Ismail said that SLS’ bid for the review was "not seeking a remedy for a wrong against it, but rather upholding the rule of law and constitutional integrity.

"In my view, SLS has shown that it has a real and genuine interest in the subject matter of the Judicial Review, and is not a busybody. In the circumstances, it has the locus standi to commence the present Judicial Application," he said.

Justice Ismail said that it was clear that SLS was not challenging the lawfulness of the 2022 Review Order for the special grant but was acting in public interest to redress the breach of the federal government to pay 40% entitlement to Sabah.

"I do not think this argument ought to derail the applicant’s (SLS) arguments that it has the locus standi as here the applicant has clearly made its position very clear that it was not challenging the lawfulness of the contents of the Review Order 2022.

"The applicant’s relief here is for public redress for breach of the 1st respondent’s (federal government) public duty, a constitutional duty to pay 40% entitlement for each consecutive financial year from the year 1974 to 2022."

SLS through its lawyers Dr David Fung and Jeyan Marimuthu filed the leave application in June last year after the federal and state governments announced a special five-year annual grant of RM125.6mil for Sabah in April last year.

The Sabah government has since supported the SLS action and applied to become a second respondent. The state is represented by counsel Tengku Datuk Fuad Ahmad.

The AGC was represented by Suzana Atan.

The crux of the issue is whether the federal government had failed to hold the second review of Sabah’s 40% Special Grant in 1974 in accordance with Articles 112C and 112D of the Constitution and if there was a Constitutional breach.