Kota Kinabalu: The High Court on Friday allowed the Sabah Law Society’s (SLS) judicial review on the State’s constitutional entitlement to 40 per cent of the net revenue derived from Sabah, and ordered the Federal Government to hold another review with the State Government within 90 days.
Judge Datuk Celestina Stuel Galid granted an order of mandamus directing the Federal Government, as the first respondent, to conduct the review with the Sabah Government, the second respondent, under Article 112D of the Federal Constitution.
The judge ruled that the review must be held within 90 days and that an agreement between the Federal and State Governments must be reached within 180 days from the date of the order.
The order is to give effect to the Federation making the 40 per cent entitlement to the State of Sabah as provided under Article 112C read together with subsection (1) of section 2, Part IV of the Tenth Schedule of the Federal Constitution for each consecutive financial year from 1974 to 2021.
“I allow the application as prayed for in para 112 in Enclosure 101 with amendment to paragraph 3(a),” she said in her ruling delivered in open court.
The court made no order as to costs.
The SLS had named the Federal and State governments as the first and second respondent in its judicial review application.
The Judge, earlier, held among others, that the court was of the view that the applicant had established that the Second Review Order made by the Federal and State Governments to consider and for the Federation to make the special grant for the period from 1974 to 2021 to the State of Sabah is unlawful, that is ultra vires the powers entrusted to the two governments under Article 112D of the Federal Constitution.
The Court further held that it is unlawful on the part of the Federal Government to make the intended special grants under…the Tenth Schedule to Sabah…for the ‘lost years,’ and it illegal, irrational, unreasonable and in breach of the Federal Constitution in the context of the judicial review.
As for the Third Review Order, the Court agreed with the applicant that the same reliefs sought in respect of the Second Review Order would similarly apply, noting that it would not be complete to ignore the Third Review Order in the application.
The Judge said the full written grounds of judgment would be ready by Tuesday (Oct 21) or Wednesday (Oct 22).
Meanwhile, Dr David Fung, counsel for the SLS, told reporters outside the court that the court’s decision was that the 40 per cent entitlement promised to Sabah must be carried out by the Federal Government together with the State Government.
“The court says that the 40 per cent entitlement which Sabah has been promised is something that needs to be performed by the Federal Government together with the State Government. We are talking about the 40 per cent entitlement that the State is entitled to for the years from 1974 up to 2021, that is 48 years. These lost years, the entitlement is not lost, the court says, because it is a constitutional duty. The governments now have to review it and work out what the figure is, and the court has given a timeframe on it,” he said.
He said the court also took into consideration the constitutional documents, the Cobbold Commission, the Malaysia Agreement 1963 (MA63) and the Inter-Governmental Committee (IGC) Report, when interpreting the Federal Constitution to determine what the 40 per cent means.
“The court also considered the social conditions that the State is facing at the moment, because the 40 per cent entitlement is meant for the State Government, for State services and for improving development for the State. The State has fallen behind because there has been no payment of this entitlement for the last 48 years,” he said.
“In a nutshell, that is what today’s decision says, and it is very important for the people of Sabah. The court also emphasised that the 40 per cent is the revenue that the Federation has derived from Sabah. That means it is Sabah’s own revenue, which the Government must now account for, consider, and work out how much it is,” he added.
The SLS was seeking a declaration, among others, that the Federal Government’s failure to hold a second review in 1974 with the State Government was a breach and contravention of its constitutional duty stipulated under Article 112D, Clauses (1), (3) and (4) of the Federal Constitution.
It said the 40 per cent entitlement remained due and payable by the Federal Government to the State Government for each consecutive financial year for the period of 1974 to 2021, in which a failure to pay the entitlement was a breach of the fundamental right to property of the Sabah government and ultimately, of the people of Sabah as enshrined under Article 13 of the Federal Constitution.
SLS also sought an order of mandamus directed to the respondent to hold another review with the state government under the provisions of Article 112D of the Federal Constitution, to give effect to the payment of the 40 per cent entitlement for each consecutive financial year from 1974 to 2021 within 30 days, and to reach a decision within 90 days from the date of the order, and that the respondent pays the entitlement to the State Government or as constitutional damages for breach of Article 13 of the Federal Constitution, or both.
Together with Dr Fung was counsel Jeyan Marimuttu, while Senior Federal Counsel Ahmad Hanir Hambaly @ Arwi appeared for the Federal Government and Sabah State Attorney-General Datuk Brenndon Soh represented the State Government.
