Kota Kinabalu: The High Court on Friday declined the State Government’s amicus curiae (friend of the court) application in the Sabah Action Body Advocating Rights’ (Sabar) action in disputing the validity of the Territorial Sea Act 2012 (TSA) which limits the State’s maritime boundary to only three nautical miles.
Judge Alexander Siew How Wai, in his ruling, said the Court is of the view that it may not be appropriate for the State Attorney-General Chambers (SAGC) to be an amicus curiae in the litigation.
“Counsel from the SAGC submitted on Sept 11 that the outcome of this litigation may affect the rights and direct interests of Sabah and that the State Government meets the criteria to be a party to this litigation.
“But that at this juncture, the chambers’ instructions are only to be an amicus curiae and that they have not received any instructions ‘whether to intervene or not’,” he said.
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“The Court also cannot rule out the possibility one or both of the existing parties to this litigation may at some stage apply to join the State Government as a party.
“Under the Rules of the Court, even if there is no such application by the existing party or a potential intervenor, the Court, of its own motion, is empowered to order an entity to be joined as a party if the Court comes to the view the joinder is necessary to ensure the matters in dispute are effectually and completely determined and adjudicated upon.
“The Court has further taken note of the counsel’s statement that the State Government through the Honourable Chief Minister has already publicly taken a position on the validity or otherwise one of the main statutes in question in this litigation, the Territorial Seas Act 2012.
“The court does not doubt the integrity or professionalism of the State Attorney-General or the SAGC. However, ultimately they are answerable to the State Government.
“In the circumstances, the Court, in all humility is compelled to decline the offer of assistance of the SAGC as amicus curiae,” held Siew.
On Sept 11, the SAGC applied for leave to act as amicus curiae in the originating summons of Sabar, which named the Government of the Federation of Malaysia as the sole defendant, which had objected to the said application.
The plaintiff, in the action filed in September 2023, is seeking a declaration that the Continental Shelf Act 1966 and Petroleum Mining Act 1966 is inapplicable, unconstitutional, invalid, null and void in the territory of Sabah after June 19, 2012;
A declaration that the territory of Sabah, after the annulment of the Proclamation of Emergency of 1969 on June 19, 2012, includes the continental shelf under the North Borneo (Alteration of Boundaries) Order in Council 1954;
A declaration that the Mining Ordinance 1960 is valid in Sabah after June 19, 2012;
A declaration that Section 3(3) of the Territorial Sea Act 2012 which limits the territorial waters of Sabah to three nautical miles is inapplicable, unconstitutional, invalid, null and void in Sabah as of June 22, 2012;
A declaration that the territorial waters of Sabah, after the annulment of the Proclamation of Emergency of 1969 on June 19, 2012, includes the 12 nautical miles of sea under the Convention on Territorial Seas and Contiguous Zone 1958 and North Borneo (Definition Of Boundaries) Order In Council 1958; cost and any further or other relief deems fit.
In Friday’s proceedings, counsel Roland Cheng represented the plaintiff, Senior Federal Counsel (SFC) Nur Irmawatie Daud representing the defendant, while State counsel Devina Teo appeared for the SAGC.
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