JANUARY 24 — The Federal Government has repeatedly assured the public that it is not appealing Sabah’s 40 per cent special grant entitlement. On the surface, this sounds reassuring. It suggests acceptance of the High Court’s decision and a willingness to move forward in good faith.

However, the Memorandum of Appeal filed recently reveals the true extent of the appeal, and it tells a far more troubling story. While the Government has chosen not to challenge the mathematical formula for the 40 per cent entitlement, it is appealing almost everything else that gives that entitlement legal force, practical meaning, and real consequences.

This distinction is not technical. It goes to the heart of what this appeal is really about.

Understanding the “Lost Years”

To understand why the appeal matters, it is first necessary to understand what the High Court identified as the “Lost Years”.

The Lost Years refer to the 48-year period from 1974 to 2021, during which the Constitution required periodic reviews of Sabah’s special grant under Article 112D, but no lawful review was carried out. As a result, Sabah did not receive its 40 per cent entitlement calculated in accordance with the Constitution for nearly half a century.

This is not a political slogan or a rhetorical flourish. It is a factual and legal conclusion reached by the High Court after examining the constitutional framework and the historical record. The Lost Years explain why Sabah was underpaid for decades and why the Court concluded that constitutional duties had been breached.

They are central to the judgment — and central to what is now being appealed.

What is a Memorandum of Appeal — and why it matters

Most people are familiar with the idea of a Notice of Appeal. A notice simply tells the court and the other parties that an appeal is being filed, and it lists, often briefly, the parts of the decision that are being challenged.

A Memorandum of Appeal is different. It is the document that sets out, in substance, what the appellant is actually contesting and why. It explains the legal grounds of the appeal in detail. In practice, it is the document that shows the true scope and intent of the appeal.

This distinction matters because two notices of appeal were filed earlier, and public statements were made suggesting that the appeal was narrow and limited. The Memorandum of Appeal, however, goes further. It clarifies, expands, and sharpens the issues being taken up on appeal. It is here that the real breadth of the challenge becomes apparent.

In other words, the Memorandum of Appeal is where the appeal stops being procedural and becomes substantive. It is the document that reveals what the Federal Government is truly asking the Court of Appeal to undo.

The difference between a right on paper and a right in reality

At the centre of this appeal is a distinction that is easy to miss but vital to understand.

The Federal Government says it accepts Sabah’s right to be paid. What it is appealing are the High Court’s orders that give meaning to that right. In practical terms, the Government is asking the Court of Appeal to set aside the findings that Sabah was underpaid for decades, that the underpayment was unlawful, that constitutional powers were abused, that the Government must account for what is owed, and that the breach must be corrected within a clear and enforceable timeframe.

Seen this way, the position becomes clear. The right is allowed to exist, but the consequences of violating that right are being challenged.

This is not a technical nuance. It is the core of the appeal.

A constitutional entitlement is not made real merely by acknowledging that it exists. It becomes real only when the law recognises that it has been breached, invalidates unlawful acts, and requires those responsible to make good what was lost. The High Court did exactly that. The Memorandum of Appeal shows an attempt to preserve the entitlement in theory, while stripping away the legal consequences that would finally give it effect.

That is the strategy being pursued, and it is why this appeal matters.

What the High Court actually decided

The High Court’s judgment was not a narrow ruling about percentages or accounting formulas.

The Court found that after the first review period ended in 1973, no lawful review took place from 1974 onwards, despite the Constitution clearly requiring such reviews. This failure persisted until 2021, creating the 48-year Lost Years.

The Court further held that the Federal Government’s use of its powers under Article 112D amounted to an abuse of power and a breach of constitutional duty. It found that the Gazette Orders issued in 2022, 2023 and 2025 were unconstitutional because they were illegal, irrational, procedurally improper, and disproportionate.

Crucially, the Court did not stop at declarations. It imposed accountability. It ordered constitutional damages for breach of fundamental rights, required an accounting of what was owed as a result of the Lost Years, and directed that any fresh review must be conducted properly and within clear timeframes to prevent further delay.

This is what gave the judgment its weight. It transformed a long-ignored constitutional promise into an enforceable obligation.

What the Memorandum of Appeal actually reveals

The Memorandum of Appeal makes clear that the Federal Government is appealing precisely those parts of the judgment that imposed accountability for the Lost Years.

It challenges the finding that no lawful review occurred between 1974 and 2021. It challenges the conclusion that the Federal Government abused its constitutional powers and breached its duties. It challenges the declarations that the 2022, 2023 and 2025 Gazette Orders are unconstitutional. It also challenges the orders for constitutional damages, the requirement to account for sums owed, and the court-imposed directions governing how and when a proper review must be conducted.

These are not peripheral matters. They are the operative findings that explain why Sabah lost nearly five decades of its constitutional entitlement and what must now be done to remedy that loss.

Why saying “we are not appealing the 40 per cent” is misleading

It is true that the Federal Government has not appealed the mathematical formula for calculating the 40 per cent entitlement. But a formula on its own does not recover lost money, correct past breaches, or prevent future delay.

If this appeal succeeds, the 40 per cent entitlement may remain intact in theory, but the findings that explain the Lost Years may be erased. The Gazette Orders may regain legal protection. The orders for damages and accounting may fall away. The requirement for a court-supervised, time-bound review may disappear.

For Sabah, this is not an abstract concern — it determines whether decades of underpayment will ever be acknowledged or remedied.

In that scenario, Sabah would be left with a constitutional right that exists on paper but lacks any effective mechanism to make it meaningful. That is not acceptance of the judgment. It is a return to the very conditions that allowed the Lost Years to occur in the first place.

What this means for the 40 per cent going forward

It is important to be clear about what is — and is not — at stake for future years.

The appeal does not abolish Sabah’s 40 per cent entitlement. The constitutional formula remains. However, the High Court judgment did more than recognise that entitlement; it imposed legal discipline on how it must be reviewed, calculated, and implemented in the future.

If the appeal fails, future reviews must comply strictly with Article 112D, and future payments must be anchored to a lawful, transparent process rather than executive discretion. In that scenario, Sabah’s ability to receive its full constitutional share going forward is significantly strengthened.

If the appeal succeeds, the entitlement may survive in theory, but the safeguards that ensure it is properly enforced may be weakened or removed. That would leave future payments vulnerable to the same uncertainties and delays that characterised the Lost Years.

In other words, the appeal is not only about the past. It also determines whether Sabah’s 40 per cent entitlement will be protected by constitutional law in the years to come, or left once again to political negotiation.

What the appeal is really about

This appeal is not about refining legal language or correcting minor errors. It is about whether constitutional breaches spanning 48 years should carry consequences.

The Memorandum of Appeal reveals an attempt to preserve the appearance of respecting Sabah’s entitlement while removing the findings and orders that require the Federal Government to account for the past and act decisively in the future.

Put simply, the position being advanced is that the right may exist, but the cost of ignoring it for nearly half a century should not have to be paid.

Why this should trouble every Malaysian

In the end, this appeal forces an uncomfortable question into the open. If a constitutional right can be acknowledged while the findings that expose its long violation are appealed away, then the right itself becomes little more than a symbol. The Memorandum of Appeal shows that the real dispute is no longer about whether Sabah is entitled to 40 per cent, but about whether nearly fifty years of ignoring that entitlement should have consequences. That question goes beyond Sabah. It goes to whether constitutional guarantees in Malaysia are meant to be honoured in substance, or merely recited when convenient. That answer will determine whether the Constitution remains a living safeguard — or whether it can be honoured in words while ignored in practice.

Roger Chin

Nominated Member of the Legislative Assembly of Sabah

January 23, 2026

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.