By Daniel John Jambun BORNEO’S PLIGHT IN MALAYSIA FOUNDATION (BoPiMaFo)
KOTA KINABALU: Borneo’s Plight in Malaysia Foundation (BoPiMaFo) has taken note of widespread public reaction following reports that the Federal Government has filed an appeal and applied for a stay of execution regarding the High Court decision on Sabah’s constitutional entitlement to 40% of the net revenue derived from the state.
Many Sabahans have expressed that they feel sceptical, confused and even betrayed by this development.
BoPiMaFo is therefore issuing this statement to help clarify what these legal actions actually mean and what is now at stake.
Why the Federal Government Filed an Appeal
An appeal means that the Federal Government has asked a higher court to review the decision of the Kota Kinabalu High Court.
In October 2025, the High Court ruled in favour of the judicial review brought by the Sabah Law Society and declared that Sabah’s constitutional financial safeguards had not been properly implemented.
The Court issued a mandamus order requiring the Federal Government to carry out the constitutional review process and reach an agreement with the Sabah Government within specific timelines.
This ruling was based on Sabah’s constitutional entitlement under Article 112C of the Federal Constitution of Malaysia and Article 112D of the Federal Constitution of Malaysia, read together with the provisions of the Tenth Schedule of the Federal Constitution.
The Federal Government has now appealed the decision to the Court of Appeal.
Although the full legal grounds of the appeal have yet to be argued publicly, the government is expected to challenge certain aspects of the High Court’s reasoning and the scope of the mandamus order issued by the court.
However, it must be emphasised that an appeal does not automatically suspend the High Court order.
Why Sabahans Feel Confused and Betrayed
Public concern has been heightened because senior leaders of the Federal Government had earlier indicated that the government would accept and respect the High Court ruling.
Such statements gave many Sabahans the impression that the long-standing constitutional issue would finally be resolved through good faith implementation of the court’s decision.
The subsequent filing of an appeal and a stay application has therefore created understandable confusion and disappointment among the people of Sabah.
For many, the question now arises: if the judgment was to be respected, why is there now an attempt to delay its implementation?
What a “Stay of Execution” Means
Because an appeal does not automatically stop a court order from taking effect, the Federal Government has also applied for what is known as a stay of execution.
A stay of execution means that the government is asking the court to temporarily pause the implementation of the High Court’s order while the appeal is being heard.
If the stay is granted, the Federal Government would not have to comply with the High Court’s timelines until the appeal is decided.
If the stay is refused, the Federal Government must continue complying with the High Court’s order even while the appeal is ongoing.
Why the Timing of the Stay Application Raises Questions
BoPiMaFo also notes an important point that deserves public attention.
When the High Court delivered its judgment in October 2025, the Federal Government did not immediately apply for a stay of execution.
Instead, the timelines set by the High Court were already running.
The court had directed that the constitutional review process required under Article 112D be conducted within 90 days, and that agreement be reached within 180 days.
The 90-day period expired in January 2026, while the 180-day deadline is scheduled to expire on 15 April 2026.
Only after these timelines were already underway did the Federal Government apply for a stay.
This inevitably raises questions among Sabahans as to whether the stay application is now being used primarily as a means to delay compliance with the High Court’s order.
The Legal Tests for Granting a Stay
When deciding whether to grant a stay of execution, the Court of Appeal normally considers three key legal questions.
1. Whether the Appeal Raises Arguable Legal Issues
The court will consider whether the appeal raises genuine legal questions that deserve to be heard.
The applicant does not need to prove that the appeal will succeed, but it must show that the appeal is not frivolous.
2. Whether Irreparable Harm Would Occur
The court will consider whether serious harm would occur if the High Court order proceeds.
In this case, the Federal Government may argue that implementing the order could have major financial implications.
However, it must be remembered that the revenue in question was collected from Sabah in the first place.
Returning Sabah’s constitutional share cannot logically be regarded as injustice to the Federation.
3. The Balance of Justice
Finally, the court will consider the balance of justice.
The court must determine which side would suffer greater prejudice depending on whether the stay is granted or refused.
For Sabah, the constitutional review required under Article 112D has not been properly implemented for decades.
Allowing further delay would effectively prolong a constitutional breach that has already lasted for more than half a century.
A Constitutional Safeguard Given at the Formation of Malaysia
BoPiMaFo wishes to emphasise that this case is not merely about financial arrangements.
It concerns a constitutional safeguard that formed part of the framework under which Sabah agreed — though reluctantly — to form the Federation of Malaysia in 1963 under the Malaysia Agreement 1963.
Sabah entered the Federation with specific constitutional safeguards designed to protect the interests of the Borneon states.
Among these safeguards was the financial arrangement guaranteeing Sabah a share of the revenue derived from the state.
It is therefore not unreasonable for many Sabahans to feel that Sabah might not have considered entering the Federation had such safeguards not been assured.
Conclusion
The issue now before the Court of Appeal is therefore not merely procedural.
It raises a fundamental constitutional question: whether the implementation of a constitutional duty should be suspended while an appeal is pending.
BoPiMaFo believes that constitutional obligations should not be placed on hold indefinitely.
The people of Sabah have already waited for decades for the proper implementation of their constitutional financial safeguards.
Further delay will only deepen public concern that Sabah’s constitutional rights are being treated as negotiable rather than binding.
Respect for the Constitution requires that its provisions be honoured faithfully and without unnecessary delay.
