Sabah’s 40pc revenue rights appeal: Court of Appeal to decide on Nov 12

 

KOTA KINABALU, Oct 29 — The Court of Appeal will determine on November 12 when it will deliver its ruling on the federal government’s appeal against parts of a High Court decision on Sabah’s 40 per cent net revenue entitlement for 1974 to 2021.

The three-judge panel comprising Datuk Azhahari Kamal Ramli, Datuk Ahmad Kamal Md Shahid and Datuk Amarjeet Singh Serjit Singh fixed the date for e-Review case management after hearing submissions from the federal government, the Sabah Law Society (SLS) and the Sabah government today.

The panel said it needed more time to consider the submissions before delivering its decision.

The federal government is challenging parts of the Kota Kinabalu High Court ruling, including findings that both the federal and Sabah governments had abused their powers and breached their constitutional responsibilities.

However, SLS said the federal government’s notice of appeal did not challenge the 40 per cent constitutional formula or the need for a review under Article 112D of the Federal Constitution. Its appeal nevertheless challenges findings and orders concerning the “Lost Years”, the review process, the relief granted and the High Court’s jurisdiction.

During the hearing, Senior Federal Counsel Ahmad Hanir Hambaly @ Arwi argued that the High Court had erred in finding that the federal government breached its constitutional duties and in issuing an order compelling a review of Sabah’s special grant.

The federal government maintained that the 1970 First Review Order remained legally in force until it was superseded by a 2022 Review Order, relying on Article 112D(3) of the Federal Constitution. It contended that payments made to Sabah between 1974 and 2021 were constitutional and challenged the High Court’s jurisdiction to hear the case.

Representing SLS, lawyer David Fung Yin Kee argued that no constitutional review had been conducted between 1974 and 2021, as required under Article 112D. He said correspondence and meetings between the two governments did not constitute a formal review under the Constitution.

Fung also defended SLS’s right to bring the judicial review in the public interest, arguing that the courts could intervene where constitutional obligations had not been fulfilled.

The Sabah government broadly supported the High Court’s finding that no review had been conducted since the first review in 1969. However, it opposed quashing the interim review arrangements for 2022, 2023 and 2024, arguing that they should remain in force while the constitutional issues are resolved.

On October 17 last year, High Court judge Datuk Celestina Stuel Galid allowed a judicial review application by SLS and ordered the federal government to review Sabah’s 40 per cent revenue entitlement with the state government for the financial years from 1974 to 2021, a period known as the “Lost Years”.

The court ordered the review to be completed within 90 days and the two governments to reach an agreement within 180 days.

The federal government subsequently obtained a stay of the order from the Court of Appeal in Putrajaya on April 6, pending its appeal.

The federal government was represented by Senior Federal Counsel Ahmad Hanir Hambaly @ Arwi and Nurhafizza Azizan, together with Azza Azmi, Safiyyah Omar and Nur Atirah Aiman Rahim.

SLS was represented by David Fung Yin Kee, Jeyan T.M. Marimuttu, Janice Junie Lim, Liew Yung Enn and Vanessa Maria Marimuttu.

The Sabah government was represented by State Attorney-General Datuk Brenndon Keith Soh, Senior State Counsel Mohd Saifurrazee Mohamed @ Hussin and Devina Teo, and State Counsel Roland Alik.