The SLS challenge


There's high anticipation at the court that Sabah would get its 40% grant revenue. — Others

IT WAS an emotionally-charged Thursday for most Sabahans as the High Court in Kota Kinabalu decided on a legal matter concerning the emotive issue of the state’s right to 40% of grant revenue.

The Court of Appeal heard the Federal Government’s appeal against a High Court decision granting leave to the Sabah Law Society (SLS) to seek a judicial review on the state’s right to 40% of grant revenue.

There was high anticipation at the court that Sabah would get its 40% grant revenue. It brought the pent-up Sabahan feeling that we got a raw deal when it formed Malaysia on Sept 16, 1963.

What is the SLS legal challenge?

Is it about getting the 40% grant revenue? Is it about declaring the Sabah government’s effort so far unconstitutional?

The answer to these questions can be controversial. Some people are emotional and it also depends on their political inclination.

“Many people think that if SLS wins the case, we will get our 40%. However, the case is not directly about getting 40%. It is about making a statement that the Sabah government’s effort to get some of the 40% has so far been unsuccessful,” a neutral Sabahan lawyer explained.

On Nov 11, 2022, Justice Ismail Brahim granted SLS’ application for leave for judicial review. The judge ruled that SLS had the locus standi to apply for judicial review because it was a public interest litigation.

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

The lawyer pointed out that the SLS judicial review challenges the constitutionality of the 2022 Special Grant Order. The order was the result of an agreement between the Federal and State Governments under Article 112D of the Federal Constitution and provides for an interim payment of RM125.6mil, RM129.7mil, RM133.8mil, RM138.1mil, and RM142.6mil to be paid for each consecutive year beginning 2022.

“The SLS argued on two grounds. The agreement between the Sabah government and the Federal government is illegal. And the content of the 2022 order is unconstitutional as it does not include the 40% grant which SLS should be paid every year starting 1974 until 2022,” he said.

I reached out to former SLS president Datuk Roger Chin about the matter.

Chin noted that while securing the 40% revenue share is a crucial goal, the SLS case has a broader purpose. It aims to establish a legal precedent that affirms Sabah’s rights under the Malaysia Agreement 1963 (MA63).

“This precedent goes beyond just obtaining the money. It strengthens Sabah’s position in future negotiations for a fairer revenue-sharing mechanism,” he said.

“Additionally, a successful judicial review would also provide a clear legal formula, if agreed upon, to calculate the 40% entitlement.”

Chin explained that the formula would then be used to quantify the financial compensation owed for the “Lost Years” — the period from 1974 to 2021 when the 40% entitlement wasn’t paid. This quantification would be a significant step towards achieving true financial justice for Sabah, he said.

On Thursday, the Sabah government – to use words as reported by a media organisation – “sprang a surprise” when it intervened in the Attorney General’s appeal against a High Court decision to grant the SLS leave to challenge the 40% special constitutional grant provisions.

The lawyer, who did not want to be identified because he wanted to remain “neutral,” noted that even some GRS leaders do not understand the SLS case. He referred to the Gabungan Rakyat Sabah coalition, the backbone of Sabah Chief Minister Datuk Seri Hajiji Noor’s government.

The lawyer said the 40% issue was highly emotional as Sabahans wanted to believe what they wanted to believe instead of what the Constitution actually said.

“Our leaders have not adequately explained to the public the conditions through which the 40% can be paid. Instead, they tell the people that it is an absolute right when it is not,” he said.

“In Sarawak, the opposition party and the government work hand-in-hand to achieve their special grant even though there is no number attached to it. There, it is not a political issue. Instead, in Sabah, the opposition and some in the government have chosen to politicise one of Sabah’s most important rights and, therefore, have divided Sabahans over the issue.”

The lawyer said based on Article 112C of the Constitution the Federal shall pay the 40%, subject to conditions. According to him, although the word “shall” is used in terms of the 40%, it was not mandatory because it is conditional on the requirement in Article 112D.

“Therefore, the Sabah and Federal governments must work hard to achieve the conditions through which 40% is to be paid. In that sense, it is clearly aspirational,” he said, in explaining the words of Tengku Datuk Fuad Ahmad, who represented the state government, used in court on Thursday.

“It is wrong to say that Tengku Fuad said that the 40% was a mere dream. It is a goal that the Federal and state are currently working towards.”

The lawyer added: “In English, ‘aspirational’ means to work towards a valuable goal or objective.”

What are the conditions?

“112C is conditional; it cannot be said to be mandatory or absolute or as of right; it has to be agreed to by the Federal government and must take into account the financial position of the federation, the needs of the state and adequacy of funding for state services,” said the lawyer.

In a news report by The Star, Tengku Fuad was quoted as saying: “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% Special Grant provisions could be extinguished without ever being heard.”

In my Whatsapp bubble, some see Tengku Fuad as “Enemy No 1” to Sabahans as he is painted as opposing Sabah from getting the 40%.

“It is a case of people shooting the messenger. Some politicians attacked Tengku Fuad by twisting his words,” the lawyer said, adding that the messenger was known for his Sabah rights fights, such as defending in 2016 the four Sabah Sarawak Keluar Malaysia (SSKM) activists who were charged with having materials urging Sabah and Sarawak to leave Malaysia.

I replied that in an emotive political game, Tengku Fuad was collateral damage to paint the GRS government as not fighting for the right to 40% of grant revenue.

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SLS , Sabah , Fuad

   

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