NOVEMBER 18 — In the much-talked-about case of Sabah Law Society v The Government of the Federation of Malaysia and the State Government of Sabah, the Kota Kinabalu High Court granted the application for judicial review filed by Sabah Law Society (SLS) under Order 53 of the Rules of Court 2012.
SLS is established under the Sabah Advocates Ordinance (Sabah Cap. 2). SLS’s standing to apply for a judicial review in the case was affirmed by the Federal Court which held that SLS has threshold locus standi to do so (Attorney General of Malaysia v Sabah Law Society).
“Special grant
2. For a period of five years with effect from 1 January 2022, the Government of the Federation shall make to the State of Sabah, in respect of the financial year 2022, 2023, 2024, 2025 and 2026, grants in the sum of RM125.6 million, RM129.7 million, RM133.8 million, RM138.1 million and RM142.6 million respectively.
Revocation
3. The Sabah Special Grant (First Review) Order 1970 [P.U. (A) 328/1970] is revoked.”
It was in respect of the Second Review Order that the judicial review was applied for. SLS contended that the Second Review Order failed to comply with Article 112C of the Federal Constitution (FC), read with subsection (1) of section 2 of Part IV of the Tenth Schedule and Clauses (1), (3) and (4) of Article 112D.
After the filing of the application for judicial review, a Federal Government Gazette publication P.U.(A) 364/2023 dated November 24, 2023 was issued publishing the Order “Federal Constitution [Review of Special Grant Under Article 112D] [State of Sabah] Order 2023” (Third Review Order) which states the following:
“Special grant
2. (1) For a period of six years with effect from 1 January 2022, the Government of the Federation shall make to the Government of the State of Sabah, in respect of the financial year 2022, 2023, 2024, 2025, 2026 and 2027, grants in the amount of RM125.6 million, RM300 million, RM306 million, RM312 million, RM318 million and RM325 million respectively.
(2) The Government of Federation has made to the State of Sabah, in respect of the financial year 2022, grant in the amount of RM125.6 million on 16 June 2022.
Revocation
3. The Federal Constitution (Review of Special Grant under Article 112D) (State of Sabah) Order 2022 [P.U. (A) 119/2022] is revoked.”
In its judicial review application, SLS sought for, among others,
- an order of certiorari for the purpose of quashing part of the decision contained in the Second Review Order and Third Review Order as is in breach and contravention of the Federal Government’s constitutional duty stipulated under Article 112D, Clauses (1), (3) and (4) FC; and
- an order of mandamus directed to the Federal Government to hold another review with the State Government of Sabah under the provisions of Article 112D FC to give effect to the Federation making the 40% Entitlement to the State of Sabah under Article 112C read with subsection (1) of section 2 of Part IV of the Tenth Schedule of the Federal Constitution for each consecutive financial year for the period from the year 1974 to the year 2021 within 30 days and to reach an agreement within 90 days from the date of this order.
The learned High Court judge, Celestina Stuel Galid, granted both order of certiorari and order of mandamus as sought, but that the Federal Government shall hold a review with the State Government of Sabah within 90 days and to reach an agreement within 180 days from the date of the order.
Both certiorari and mandamus are two of the main public law remedies in judicial review applications which the High Court can grant to correct the actions of public authorities.
An order of certiorari – Latin for quashing order – quashes a decision made by a public authority. Mandamus, meanwhile, is an order to enforce the performance of public duties by a public authority. It is used to ensure that the public duties are performed by public authorities.
Both orders of certiorari and mandamus are ordinarily sought or claimed together.
A recent high profile order of certiorari that was granted by the court was in the case SIS Forum (M) & Anor v Jawatankuasa Fatwa Negeri Selangor & Ors [2025].
In that case SIS Forum and Zainah Anwar had filed a judicial review application seeking a declaration that a Fatwa issued by Jawatankuasa Fatwa Negeri Selangor on July 17, 2014 and gazetted on July 31, 2014 pursuant to Section 47 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 titled Fatwa Pemikiran Liberalisme Dan Pluralisme Agama was invalid, and praying for an order of certiorari to quash the Fatwa.
The judicial review application was dismissed by the High Court (HC). SIS Forum and Zainah Anwar appealed to the Court of Appeal (COA). The COA dismissed the appeal and upheld the decision of the HC.
SIS Forum and Zainah Anwar then appealed to the Federal Court.
The apex court, by a majority (3:1 – one of the judges having mandatorily retired before judgment was delivered), allowed the appeal and set aside the orders of the HC and the COA. Consequently, an order of certiorari quashing the Fatwa was granted.
The court granting the order of certiorari was the Federal Court.
It would not have been possible if SIS and Zainah Anwar had not exercised their legitimate right to appeal against the decision of the HC and subsequently the COA.
The order would not have been possible if parties in the case had not respected the legal process.
The case also informs us that not just a single judge in the HC, but three judges in the COA, could err in their decisions.
An appeal allows the error to be corrected.
So, let’s not just respect the right to appeal of the Federal Government, but also respect the legal process.
The Kota Kinabalu High Court decision has to be respected. But the right of appeal and the legal process have also to be respected.
The decision is not final until it is finally decided on appeal by the highest appellate court.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
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