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COUNSEL Tengku Datuk Ahmad Fuad representing Sabah Government, whose application as intervener was granted earlier, disagreed with the appellant’s position on justiciability as it regards the capacity of the Court to consider the challenge of Article 112C and 112D. 

Fuad argued that the right to call for a review that may result in the 40 per cent Special Grant being allocated under Article 112D(4) is mandatory and that the Sabah Government can call for– and the Federal Government must grant -  a review whenever and as required by the Sabah Government. 

Further, Fuad argued that if the Federal Government breaches any of its constitutional obligations to Sabah under either Articles 112C or 112D (the 40 per cent Special Grant Provisions), then the Sabah Government can seek redress through the courts (the provisions being ‘justiciable’).

He said there was supposed to be a mandatory review in 1974 but there was none and that the consequences of that breach are justiciable and for the court to decide on but there is no specific constitutional provision to deal with the “Lost Years” between 1969 and 2022 that has lapsed.

“This is not a mandatory or absolute right. The 40 per cent special grant revenue is an aspirational article. It is designed for something to work towards as opposed to absolute or right under mandamus,” added Fuad, in challenging the locus standi of SLS.

He submitted that on locus standi, the Sabah Government and the Federal Government are the only parties to be considered on the enforcement of the provisions.

Fung, however, rebutted Fuad’s contention on SLS’ position, saying that it was not their position when leave was applied for in High Court, previously.

“They are not appealing so they did not challenge the High Court’s decision. They had no arguments on locus standi,” said Dr Fung.