By Roger Chin, President
Sabah Law Society
KOTA KINABALU: The Sabah Law Society (SLS) will be commencing an action pertaining to the on-going dispute in respect of the 40% Special Grant that the State of Sabah is entitled to under the Federal Constitution.
SLS has taken cognizance of the recent announcement by the Federal Government on the purported agreement reached between the Federal Government and the State Government. SLS is also aware of the Gazette publication purporting that it is an Order under Article 112D of the Federal Constitution.
SLS is of the view that both the Announcement made by the Federal Government on 14.04.2022 and the Order published in Federal Gazette on the 20.04.2022 purportedly under Article 112D is inherently inconsistent.
While the Announcement clearly stated that it is a without prejudice agreement, the Federal Government went on to publish the same as an Order under 112D with no mention of the without prejudice condition.
SLS is of the view that both the Announcement and the publication in the Gazette as an Order 112D is in clear breach of Article 112C read together with Tenth Schedule of the Federal Constitution as well as Article 112C.
Notwithstanding the purported without prejudice Agreement and the gazette publication, there remains the issue of Sabah’s entitlement under the Federal Constitution, more particularly Article 112D and 112C.
For the period from 1964 to 1969 and the period from 1974 to 2021 the State of Sabah is entitled to the 40% Special Grant as provided under Article 112C read together with Part III, Part IV and Part V of the Tenth Schedule.
Part IV of the Tenth Schedule provides for a specific formula for the calculation of the 40% Special Grant. It is imperative that both the formula and the application of that formula must be determined once and for all. There have been so many different and sometimes conflicting interpretations of the formula. With this in mind, the SLS action and after nearly 60 years, will seek the court’s assistance as to what really is the 40%.
SLS as the guardian of Justice will file an action next week and more particularly a Judicial Review Application, to challenge the Announcement dated 14.04.2022 as well as the Gazette publication of the purported Order on the grounds it is both ultra vires the Federal Constitution and that it goes to very root of the formation of Malaysia.
It is an affront to the sanctity of the Malaysia Agreement. The Constitutional Foundation Documents are sacrosanct. They are the soul and spirit of Malaysia.
Without the Constitutional Foundation Documents, there would be no Malaysia. Upholding them is upholding Justice for Malaysia.
The Constitutional provisions under Chapter 2 of Part VII of the Constitution form part and parcel of the Safeguards, Guarantees and Rights that are provided under the Malaysia Agreement in favour of Sabah and Sarawak. Accordingly, these are very tangible guarantees and rights are enshrined in the Federal Constitution and must be honoured to the sacred words of the same. They ought not and should not be disregarded or trampled upon willy-nilly. The sanctity of these Constitutional provisions must be upheld with utmost piety.
There is clear breach of the relevant Articles of the Constitution as set out herein in the forgoing paragraphs and more particularly Article 112C and 112D read together with the Tenth Schedule of the Federal Constitution as well as the Constitutional Foundation Documents. Any agreement as may be reached as between the Federal Government and the State Government must be in accordance with Article 112C and 112D read together with the Tenth Schedule of the Federal Constitution, failing which it would be ultra vires the Federal Constitution, unlawful and be of no effect.
The Announcement dated 14.04.2022 made by the Federal Government and the State Government and subsequent Gazette Publication dated 20.04.2022 of the Review of Special Grant under Article 112D [State of Sabah] Order 2022 (Impugned Announcement and Review Order 2022) are both ultra vires the Federal Constitution, breach of natural justice, tainted with procedural impropriety, irrational and unreasonable and beyond all reasonable proportion.
Impugned Announcement and Review Order 2022 failed to take into consideration the 40% formula and amount that would be derived by its application for the periods from 1964 to 1968 and 1974 to 2021. This has infringed on the Constitutional rights, benefits and entitlement of the State of Sabah and her people ultimately.
It is grossly disproportionate to the constitutional entitlement in the State of Sabah under the Constitutional Foundation Documents, more particularly, the IGC Report and the express provisions of the Federal Constitution as set out in Article 112C and 112D.
By reason of the Impugned Announcement and Review Order 2022, the legitimate expectation of the State of Sabah and her people under the Malaysia Agreement, the Malaysia Act and the Constitutional Foundation Documents as well as the Federal Constitution, has been wholly disregarded and unfairly trampled upon.
The Applicants are entitled pursuant to Article 112C and 112D read together with Part III, IV and V of the Tenth Schedule of the Federal Constitution to assess the amount due to the State of Sabah and ultimately, the people of Sabah in accordance therewith.