KOTA KINABALU: The effect of the Court of Appeal’s stay order on the Kota Kinabalu High Court’s decision regarding the state's 40% revenue claim for the “Lost Years” does not set aside the findings of the lower court, says Sabah Law Socieity president Datuk Mohamed Nazim Maduarin.
“The effect of the stay order is to preserve the position pending the disposal of the appeal. It does not displace the findings of the High Court, including its determination that there had been a failure to conduct the periodic review required under Article 112D of the Federal Constitution,” he said in an immediate response to the Court of Appeal decision Monday (April 6).
He said the SLS emphasises that this decision is procedural in nature.
“The substantive constitutional issues, including the interpretation and proper implementation of Article 112D of the Federal Constitution, remain to be determined in the appeal,” he said following the decision made in the Federal Government's application to stay the execution of the Oct 17 Kota Kinabalu High Court decision.
He said the Court of Appeal has allowed the stay application pursuant to Section 44 of the Courts of Judicature Act 1964.
Nizam said that the Court held that it had jurisdiction to entertain the application under Section 44, notwithstanding the procedural objection raised, and that there were special circumstances warranting a stay pending the disposal of the appeal.
In reaching its decision, the Court considered that the timelines imposed by the High Court — requiring a review within 90 days and an agreement within 180 days — may not afford sufficient opportunity for the proper determination of the quantum payable, particularly having regard to the scope of the review exercise spanning multiple financial years from 1974 to 2021.
Nizam observed that the Court further took the view that the enforcement of payments of such magnitude before the appeal's disposal of the appeal could result in a fait accompli, thereby rendering the appeal nugatory and undermining the integrity of the appellate process.
The Court also noted the indication by the applicant (Federal Government) were taking steps to expedite the hearing of the appeal.
Nizam said that the Sabah Law Society will continue to participate in the proceedings and act in accordance with the law and the record before the Court.
A three-member Court of Appeal panel chaired by Justice Mohamed Zaini Mazlan allowed the Federal Government’s application to temporarily suspend the Kota Kinabalu High Court's order for the state and federal government to settle the “lost” revenue due to Sabah from between 1974 and 2021.
The stay order came as the Federal Government has appealed against the Kota Kinabalu High Court decision.
