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Where was the State AG?
Published on: Sunday, May 19, 2024
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HIGH Court on Nov 11, 2022, granted Sabah Law Society (SLS) leave for judicial review over the 40pc claims which the state is entitled to, but the decision was appealed by the Federal Government’s Attorney General’s Chambers (AGC). If AGC loses the appeal, the judicial review will go ahead.

The appeal was set to be decided on May 16, but late intervention by counsel Fuad Ahmad “on behalf” of the State Government disrupted the whole process. 

The reason SLS took the legal action is because they view the 40pc claim as a constitutional issue – political solutions have failed us and likely to end in a compromise.

As an example, the Sarawak Government took Petronas to court on the Petroleum Sales tax issue and won its case, its litigation success now adding billions to the state coffers including Sabah’s as well.

Much to the chagrin of the people present in the court and hundreds waiting patiently outside, the state government sent Counsel Fuad Ahmad, to ventilate against SLS locus standi or SLS right to take legal action over the state’s 40pc share of revenue on behalf of the people of Sabah. 

What was once a two-party litigant, has turned into threesome where the “State Counsel” seems to have taken up the Federal government’s role of opposing SLS, thus leading to some confusion.

“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,” said Fuad in challenging the locus standi of SLS. 



He also 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 an incredulous statement from a Sabah “state counsel” as he is saying there is no legal recourse for the past lapses. The Federal Government will be happy to hear Fuad’s interpretation, ruling out the “lost years” and forsaking billions which Sabah is righfully entitled to.

At some point, Fuad’s line of arguments  even confused the Court of Appeal President, Datuk Ravinthran N. Paramaguru, who rightly questioned whether Fuad had a letter of appointment from the state. 

Fuad was unable to produce the letter at the hearing. This led to some embarrassing moments for the state’s counsel when the Court of Appeal questioned Fuad’s locus standi, instead.

Where is the State Attorney General or our senior state ministers during this critical time? Aren’t they interested in the 40pc claim? It would have been great if at least one senior cabinet member had been present in court to demonstrate the state government’s interest and support for SLS, rather than merely sending an outside counsel to “represent” the state.

The State government’s stand in the SLS case has been lukewarm or muted at best. The State Attorney General has some explaining to do and needs to clarify who appointed Fuad Ahmad. By presenting the “state’s position”, Fuad has effectively undermined the SLS’s action on behalf of the people of Sabah, rendering the legal challenge “impotent.”

Personally, I don’t fault Fuad, I fault those who appointed him. They should be held responsible and accountable for the fiasco. 

The State AG, Datuk Nor Asiah Binti Mohd Yusof should be the right person to represent Sabah as she would have the inside track of how the Chief Minister and members of the Cabinet think on this issue and prepare briefs based on the government stand for the state AG lawyers to be intervenors.

I understand from sources she may be overseas at this crucial time, but this should not stop her to send other state lawyers from her chambers to represent her. 

I woke up at 4am to secure a front row seat to hear the case only to end bitterly disappointed to hear a state appointed counsel, Fuad, applying at the eleventh hour to be an intervenor in an appeal case brought by the Federal government to block SLS right to judicial review. 

Three former Chief Ministers, Tan Sri Joseph Pairin, Datuk Seri Shafie Apdal and Datuk Seri Yong Teck Lee and also Tan Sri Pandikar, several Sabah MPs and political leaders were either in the packed gallery or waiting outside to hear the outcome of the case and to rally the growing crowd. 

What was supposed to be a straightforward case to be disposed of the same day, turned out to be the State Government fighting SLS representing the people of Sabah. 

It was mischievous for Fuad to say that many members of the public turned up for the hearing due to a misconception that the hearing was to determine whether or not Sabah is entitled to the 40pc entitlement. 

Contrary to his claim, which insulted many past Chief Ministers, former speaker of Dewan Rakyat, Sabah MPs, political leaders and educated public, the crowd came together to show support of SLS pursuit of the 40pc. 

They knew what was at stake and came from all corners of Sabah to show their solidarity and give moral support for a common cause. It was rare to see the people of Sabah united on such an issue. The GRS government should be weary of the people’s sentiments on the 40pc. They have had enough of Sabah gutter politics.

SLS is a legal fraternity of Sabah founded by lawyers with wide expertise and seniority, why disparage them when they are fighting for Sabah rights? Fuad in a video during a press interview even called SLS a “busybody”. A “State Counsel” should show professionalism and not take matters personally.

The Federal AG sat smugly in the courtroom as he had little to do since the “State Counsel” did all the work to ventilate the state’s interpretation of the 40pc.

One of Fuad’s startling arguments is that the 40pc is subject to political and economic considerations. Perhaps, this is why are we not progressing well as the state is not treating it as a serious constitutional matter, and Sabah’s constitutional right.

While I am not a lawyer or an expert on the 40pc, I could see that the Sabah “State Counsel” said more than he should in the presence of the Federal AG and the three appeal court judges.

What could just be a simple application to intervene by the state, as it has vested interest, led to the state counsel ventilating the “state’s” interpretation of the constitutional clauses related to the 40pc. 

It should be more of a locus standi issue, and whether SLS, as a body, has the right to pursue the case. But that has already been decided in the High Court. The state did not object to SLS action in 2022. Why now.”

Since all hell broke loose, the Chief Minister Datuk Hajiji has come out with a statement on May 17 in support of SLS legal action. 

In the press statement, the Chief Minister said he has already instructed the State Attorney General to scrutinise and review the ongoing legal proceedings and, if necessary, to correct any misguided statement that differs from the State’s clear and formal position. 

But much damage has already been done. It can only be expunged if the government withdraw its applications as intervenors and if the court of appeal allows for the records to be expunged. It is clear from Fuad’s statement that the “State Counsel” and the CM are not on the same page.

In the meantime, State Deputy Chief Minister Datuk Jeffrey Kitingan said Fuad has no right to intervene in Putrajaya’s appeal against the High Court’s decision to grant SLS leave to challenge the 40pc share of revenue.

Jeffrey said Fuad has no standing to speak on the State Government’s behalf as he was not appointed to work on the case.

“I totally do not agree with what Fuad said. The Sabah government never appointed him on this 40pc issue. So, he cannot speak for the government as he has no locus standi as the Sabah Government has been supporting efforts made by the SLS all this while.” 

In response to the Sabah Law Society’s case over the State’s special grant issue Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Azalina Othman said, everyone has a right to bring any dispute to court. If that is the case, why would Fuad, who claims to represent the State Government go all out on May 16 to question SLS locus standi and calling them “busy body”. 

The people of Sabah expect someone will be held accountable for this shameful episode, which demonstrates poor coordination and apathy toward important issues that affect people’s lives.

Sabah owes gratitude to Datuk Roger Chin, former President of the Sabah Law Society (SLS), for initiating the 40pc claim on behalf of the people of Sabah. Additionally, we must commend SLS lead Counsel David Fung for his hard work in preparing and arguing the case. He did a credible job.

I salute Sabah Law Society for taking the 40pc by the horn pro bono on behalf of the people of Sabah. I hope the State government won’t do the same on Sabar’s Continental Shelf challenge.

Turning to the pressing question, it is clear that Fuad did not act alone. Who gave him the mandate and instructions to ventilate the state’s case and make bold statements? The public demands answers.

The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express.

If you have something to share, write to us at: [email protected]



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