The Appeal Says One Thing — But the Documents Say Another

16 March 2026

The Prime Minister says the Federal Government is not appealing Sabah’s 40% entitlement.

But the appeal filed in court challenges almost everything that makes that entitlement enforceable.

That distinction is not technical. It goes to the heart of the matter.

The High Court’s decision was never about whether Sabah has a 40% entitlement. The Constitution already provides for that. What the Court examined was whether that entitlement had been honoured in practice.

After reviewing the constitutional framework and the historical record, the Court found that the Federal Government failed to conduct the second review required under Article 112D after 1973. As a result, Sabah’s entitlement was not properly implemented for nearly five decades. The Court declared that this failure was a breach of constitutional duty and that the 40% entitlement remained due and payable for every year from 1974 to 2021.

The Court did not stop at declarations. It ordered that a proper review be conducted within a defined timeframe, required the parties to account for the sums owed, and recognised that the prolonged failure to pay Sabah its entitlement amounted to a breach of constitutional rights.

These findings are what give real meaning to the 40% entitlement.

Yet these are precisely the findings now being challenged on appeal.

The Memorandum of Appeal filed by the Attorney General disputes the High Court’s conclusion that the Government breached its constitutional duty, challenges the declaration that the Gazette Orders were unlawful, and seeks to overturn the orders requiring a fresh review, an accounting of what is owed, and the payment of constitutional damages.

In other words, the appeal does not dispute the existence of the right. It disputes the consequences of violating that right.

This is why saying “we are not appealing the 40%” is misleading.

A constitutional entitlement is not made real merely because it exists in theory. It becomes real only when the law recognises that it has been breached and requires that breach to be corrected.

If the appeal succeeds, the 40% entitlement may still remain written in the Constitution. But the findings explaining why Sabah was deprived of it for decades may be erased. The requirement to account for the Lost Years may disappear. The obligation to remedy the breach may fall away.

That would leave Sabah with a constitutional right that exists on paper but carries no real consequence when it is ignored.

This is why the appeal matters.

The real question before the Court of Appeal is no longer whether Sabah has a 40% entitlement. The Constitution already answers that.

The real question is whether ignoring that entitlement for nearly half a century should carry legal consequences.

And that is something Malaysians deserve to understand clearly.

Datuk Roger Chin

Nominated State Assemblyman