AG allowed bid to suspend revenue suit hearing

KOTA KINABALU: The High Court here has allowed the Federal Attorney General’s (AG) application to stay judicial review proceedings filed by the Sabah Law Society (SLS) in relation to a 40 per cent special grant for the state.

Justice Ismail Brahim said there were special circumstances to suspend the hearing of the case pending the AG’s appeal in the Court of Appeal.

On Nov 11, the High Court granted SLS leave to pursue the judicial review on grounds that it had locus standi to file the application as this was a public interest case.

The AG, as the guardian of public interest, could come in to object to the grant of leave, it said.

SLS president Roger Chin said they would defend the High Court’s decision in the Court of Appeal in order for the merits of the case to be heard.

“As SLS brought this judicial review as a public interest litigation, we assure the Sabah people that we will rigorously oppose the AG’s appeal in the Court of Appeal,” Chin said in a statement.

He said SLS will also request the Court of Appeal to hear the federal government’s appeal as soon as possible.

Senior federal counsel Ahmad Hanir Hambaly represented the AG while lawyer David Fung appeared for SLS.

When granting leave, Ismail had also ruled that SLS’ case, which revolved around the issue of whether Putrajaya had breached its constitutional duty to pay the 40 per cent entitlement for the “lost years” between 1974 and 2021, was a justiciable matter.

SLS had filed the leave application in June last year following an April 14 announcement by the federal and state governments of a special five-year annual grant of RM125.6 million to Sabah.

The Sabah government subsequently applied to the court and was allowed to intervene as a respondent in the action.

In the suit, SLS alleged that the federal government, named as the respondent, had breached the constitution by failing to conduct a review every five years starting from 1974.

It also claimed that the federal government was obliged to pay Sabah 40 per cent of federal revenue derived from the state in each of the intervening years since 1974.

In granting SLS’ application for leave for judicial review against the Federal Government last November, Justice Ismail had found that SLS had the locus standi to apply for the judicial review as it was a public interest litigation.

Justice Ismail also found that SLS’ case was for the breach of the constitutional duty to pay the 40 per cent entitlement for the Lost Years (1974 to 2021) which was a ‘justiciable’ (a matter that can be decided for legal principles by a court).

Following that, the SLS had earlier last month said it was informed by the Attorney General’s Chambers that the Federal Government had gone to the Court of Appeal to set aside the High Court’s decision and also applied to the Kota Kinabalu High Court for a stay.

SLS had filed for the judicial review on June 9 to overturn Putrajaya’s gazettement of the RM125.6 million annual grant for Sabah, saying it was not in line with the state’s revenue rights under the Malaysia Agreement 1963 (MA63).

The judicial review application was filed against the government at the High Court of Sabah and Sarawak by SLS lawyers Messrs J Marimuttu & Partners.

The special annual grant intended to be given to Sabah from 2022 to 2026 was jointly announced by the federal and state governments on April 14, 2022.

Chin had said then that the SLS would be challenging the federal and state government announcements and the subsequent gazette publications of the grants on the basis that it was ultra vires to the Constitution.

He said that the April 20 gazette publication was based on an order under Article 112D of the Federal Constitution.

However, when the grant was announced by the federal and state governments, he said, it was clearly stated that the agreement was done without prejudice.

But, he added, the federal government gazette order under Article 112D made no mention of the condition “without prejudice.”

“SLS is of the view that both the announcements made by the federal government on April 14, and the Order published in Federal Gazette on April 20 purportedly under Article 112D are inherently inconsistent,” he said.

As such, Chin claimed that the announcement of the Order and the gazette publication were a breach of the requirements of the federal government’s grants to Sabah which should be based on the 40 per cent revenue derived from the state.

In supporting the SLS suit, the Sabah government had also been included as a second respondent to the judicial review application on Nov 11.

Representing the state government, lawyer Datuk Fuad Tengku Ahmad said that the state government joined the action to make sure that the Federal Government was accountable for all the years (since 1974) that it failed to pay the 40 per cent grant to the state government. He said that the 2022 Special Annual Grant signed between the state and the Federal Government should not be mixed up with the constitutional requirement of the Federal Government to the state.