PH Sabah's 12 elected representatives withdraw OS against federal government
20 Sept 2023
1. On 3rd June 2022, the twelve (12) of us as elected representatives from Sabah Pakatan Harapan (PH) filed an Originating Summons (OS) against the Federal Government and the State Government of Sabah in the High Court of Sabah and Sarawak at Kota Kinabalu. We are seeking a court order that the Federal
Government recognise and deliver Sabah’s constitutional rights as provided under Article 112C and Section 2(1) of Part IV of the Tenth Schedule of the Federal Constitution. The constitutional rights provided the special rights for Sabah to receive special grants amounted to two-fifths (40% formulae) of the Federation’s net revenue derived from Sabah.
2. In summary, to achieve this we also sought in our OS for a declaration amongst others: -
(a) Firstly, that the Government of the Federation discloses to the State Government of Sabah the amount of net revenue it had derived and continues to derive from Sabah annually;
(b) Secondly, we also sought a declaration that a review ought to have been performed in 1974 and as a consequence of which is that the continued payment of RM26.7 million from 1974 be revised to an amount calculated based on the premise of the 40% formulae; and
(c) Thirdly, a declaration that the review in 2022 (2022 Review) pursuant to section 112D of The Federal Constitution between the Government of the Federation and the State Government of Sabah was unconstitutional, null and void and of no effect.
3. Subsequent to the formation of a new Federal government after the 15th General Election, a unity government headed by our Prime Minister YAB Datuk Seri Anwar Ibrahim announced the formation of Malaysia Agreement 1963 Implementation Action Council (MTPMA63) chaired by the Prime Minister himself and a Technical Committee for MTPM63 (Technical Committee) chaired by Deputy Prime Minister II. The purpose of the said committee is to finally deliver the constitutional rights of Sabah and Sarawak as intended in the Malaysia Agreement 1963 (MA63).
4. One of the Plaintiffs in our Originating Summons, YB Datuk Ewon Benedick has been appointed as a permanent member of the MTPMA63 and the Technical Committee alongside other members from the State Government of Sabah.
5. It has also been decided by the Technical Committee that the longstanding Sabah’s entitlement based on the 40% formulae shall be one of the agenda in the Technical Committee and the same is to be resolved within 12 months beginning from 18th July 2023.
6. We are also pleased to know that the disclosure of the total amount of net revenue collected or derived from Sabah annually will now be made known to the representative of the Sabah State government, by being a member of the LHDN Board when the amendment to the Inland Revenue Board of Malaysia (LHDN) Act 1995 re-tabled soon in Parliament.
7. We are also made aware that the 2022 Review will be superseded by a new Review which will be ready soon. And that this new review will increase the amount of special grants to be given to Sabah. What is equally important, this new review shall clearly state as an “interim solution” and as such does not affect Sabah’s right to claim for its special grant to be based on the 40% formulae for the affected years.
8. With these developments, two of the three declarations we sought in our OS have been agreed to and will be implemented soon.
9. In respect of the claim that Sabah ought to receive the special grant from 1974 based on the 40% formulae, this is still part of the agenda in the Technical Committee and shall be finalised within 12 months (starting from the 18th July 2023) as announced recently.
10. We are also mindful of the legal opinions regarding the legal impediment concerning the position of the Plaintiffs in the OS as the current members of the Federal and State Cabinet, that it is untenable for us to continue this legal action.
11. Taking into account the progress that has been made and the good things that can be done through the Technical Committee, we think that this option should be supported as a way to reach the intended objective we set when we filed our OS last year.
12. We agree to withdraw our OS but with the liberty to file afresh. If the remaining issues have not been resolved, and could not be agreed upon, we reserve the right to bring this case back to court to pursue any unresolved constitutional rights, as provided for in the Malaysia Agreement 1963.
LIEW CHIN JIN,
POON MING FUNG,
MADIUS BIN TANGAU,
AWANG HUSSAINI BIN SAHARI,
CHAN FOONG HIN,
PHOONG JIN ZHE,
TAN LEE FATT,
VIVIAN WONG SHIR YEE,
NOORITA BINTI SUAL.