By Remy Majangkim, MA63, Activist, Tutor, and Historian
KOTA KINABALU: On May 16, 2024, there was a hearing at the court of appeals. At the heart of the dispute was the question of whether Sabah was entitled to the constitutional formula for 40% of the net state’s revenue.
Oddly, at the hearing, the Attorney General of the State of Sabah was nowhere to be seen. Instead, a Tengku Datuk, Fuad Tengku Ahmad, appeared as counsel. He represented the state of Sabah.
Tengku Datuk Fuad is not part of the Sabah Attorney General’s chambers. He is a lawyer in private practice.
At the hearing, Tengku Datuk Fuad said something controversial: “Sabah’s claim to the 40% revenue was only an aspiration, not a law.” He further asserted that “Sabah Law Society is a busybody.”.
Let us ask ourselves some basic questions: what, why, when, where, and how?
First, why was the Sabah AG absent on that day? There may be a good reason, but we do not know what it is.
Second, was it possible that if the Sabah AG had appeared in court, she would have pushed for Sabah’s constitutional rights?
Third: Is it possible that she was told not to? We don’t know. But we can make an educated guess.
Fourth: Is it possible that the Sabah AG was instructed to stay away and Tengku Fuad was sent instead because she refused to back down from what she saw as Sabah’s legitimate right? Of that, we cannot be certain. We may be speculating. We will discuss this further shortly.
Fifth: If the answer to the last question is yes, who authorised Tengku Fuad to attend?
It was known that the Sabah Law Society was shown his appointment letter. Who had signed it? We still do not have any confirmation. Nevertheless, we can make a series of educated guesses.
Sixth: Who authorised Tengku Fuad to make the ‘Aspiration’ statement? Once again, we do not know. However, as a lawyer, he would not have dared make that statement unless someone in authority had instructed him or permitted him to do so. It is inconceivable that Fuad would act beyond the scope of his instructions. So, the question remains: who gave him those instructions?
Seventh: Could it be the Sabah Attorney General? Or could it have been the State Cabinet?
Eight: If the Sabah Attorney General gave those instructions, was it against a constitutional entitlement of Sabah? The answer is yes. This is enshrined in Articles 112 and 113 and the Tenth Schedule.
Again, can the Sabah Attorney General (and we don’t know if she did) give such instructions? If she did, it would be unconstitutional. She must leave her position with dignity. As an Attorney General sworn to uphold the law, she cannot act against the interests of the State of Sabah or its people.
Nine: What if the Sabah AG did not give those instructions? What if it is the instruction of the cabinet? Can the cabinet give that instruction? If so, does the cabinet need to get the permission of the State Legislative Assembly to do so?
In matters involving state fiscal entitlement, the cabinet has no authority to act outside the federal constitution, the state constitution, or the state legislative assembly’s permission. That is clear.
Ten: Did Sabah’s Sabah Legislative Assembly give that instruction? There are no records that say so. So the Sabah legislative assembly is off the hook.
But the Sabah cabinet is not. We do not know if the cabinet gave those instructions.
Look at the evidence.
Interestingly, on the following day, after the court of appeals hearing on May 17, 2024, the Sabah government issued a statement saying the cabinet supported the Sabah Law Society’s case. So the state government is off the hook.
Finally, to the law: The law in this area is simple. There is an agent-principal relationship between the acts of the lawyer and his client, the state. The principal is liable for the acts of the agent. It is unthinkable for Tengku Fuad to have acted outside his instructions.
If Tengku Fuad did act outside his instructions (i.e., he went ‘on a lark of his own’), then the Attorney General should clarify this.
If the answer is no and he did not, someone has to answer.
Who is that someone?
So we come a full circle back to the same bothersome question: who instructed Tengku Fuad to say what he said?
Only two people can answer that question: either the Attorney General or the State Cabinet.
If they cannot answer it, the people occupying these institutions have no choice. As a matter of honour, they have to resign. That is the constitutional convention. You cannot and should not lead a state if you act against its constitutional rights.
So we await the answers to these questions.
Who will answer them, I wonder?
