The Sabah special licence appeal: questions, questions, questions

 

From left Pandikar Amin Mulia, Tengku Fuad Ahmad, Nor Asiah Yusof and Hajiji Noor.

From Ibrahim M Ahmad

Will an alleged “blunder” in the Court of Appeal last week compromise the Sabah government’s constitutional right to a 40% special grant under the Federal Constitution?

On May 16, the Sabah government was allowed to intervene in an appeal involving the federal attorney-general (AG) and the Sabah Law Society (SLS).

The federal AG was seeking to set aside leave granted by the Kota Kinabalu High Court for SLS to pursue judicial review proceedings over the state’s constitutional entitlement under the special grant.

Senior federal counsel representing the federal AG argued that SLS had no locus standi to bring the proceedings, and that in any event, the matter was not justiciable.

The Sabah government was also represented in the appeal, not by Sabah AG Nor Asiah Yusof, but by private lawyer Tengku Fuad Ahmad.

During submissions, Tengku Fuad was reported to have supported the federal AG’s position that SLS had no locus standi to bring the case.

He also reportedly said Sabah’s claim to a 40% revenue entitlement under the constitution was “not a mandatory or absolute right”, but merely “aspirational”.

Sabah leaders and politicians have been up in arms about both those contentions.

Firstly, they have never denied SLS’s right to pursue the action on behalf of the people of Sabah. Rather, they say the presence of so many GRS leaders in court last week was a strong show of support for the cause.

Secondly, they worry that Tengku Fuad’s alarming concession that the 40% revenue entitlement was merely “aspirational” may undermine the state’s strict legal position as to its entitlements under the constitution.

The question is whether that concession was made with the authority of the state government.

On Monday, Usno president Pandikar Amin Mulia was reported to have been “shocked” to learn that Tengku Fuad had been appointed by way of a letter issued by the Sabah AG’s office dated June 8, 2022.

Pandikar said chief minister Hajiji Nor had told GRS component party leaders just three days earlier that, as far he knew, there was no appointment letter for Tengku Fuad to represent the state.

A state cabinet meeting is set to be held soon to discuss the matter, with Pandikar calling for Nor Asiah to be held accountable.

Nor Asiah herself has not denied the existence of the letter. But did she have the power to make the appointment on her own, or was she obliged to secure the Sabah government’s approval?

In any event, the Sabah AG has come out and confirmed that the state has no intention of conceding any of its constitutional rights. She said her chambers will take measures to correct statements that deviate from the state’s formal position. One wonders how she is going to do that.

Interestingly, Tengku Fuad also acted for the state government in the High Court proceedings. If what both Hajiji and Pandikar have said is true, then does that taint those proceedings with irregularity as well?

Tengku Fuad’s submissions are now part of the court record both in the High Court and in the Court of Appeal, and a decision by the Court of Appeal appears to be pending.

That is likely to leave the Court of Appeal in a quandary.

Can or should the Court of Appeal proceed to hand down its decision despite question marks over Tengku Fuad’s authority to represent the Sabah government?

Or should it first inquire into his appointment to satisfy itself that he had authority to submit on the Sabah government’s behalf?

Even if Tengku Fuad had authority, would it be proper for the court to redline portions of his submissions that do not represent the state’s position, and “correct” them, as Nor Asiah has proposed to do?

Or will it be obliged to order that the proceedings be heard de novo, since Tengku Fuad’s participation in both forums appears to have been without mandate?

That is not all.

The High Court judge acknowledged in his judgment that SLS, which represents all Sabah advocates, was by their application seeking to “(uphold) the rule of law and constitutional integrity”.

“In my view, the applicant has shown that it has a real and genuine interest in the subject matter of the judicial review, and is not a busy body,” Justice Ismail Brahim said.

So, the rights of the people of Sabah are being advanced by its body of lawyers.

My question is: where is the body of lawyers that represents Peninsular Malaysia? Why is the Malaysian Bar not participating in these proceedings?

Do they not have a point of view on such a fundamental constitutional provision that impacts federal and state relations as well as the public purse? - FMT

Ibrahim M Ahmad is an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.