It is indeed heartening to note from media reports that the High Court has upheld Sabah’s constitutional entitlement to 40% of federal revenue originating from the state.
Although the grounds of judgment have not been made available, the outcome appears to resonate with the spirit and letter of the Malaysia Agreement 1963 (MA63).
The decision, rooted in Articles 112C and 112D and Part IV of the Tenth Schedule to the Federal Constitution, appears to affirm a constitutional architecture designed to safeguard the fiscal autonomy of Sabah and Sarawak.
Article 112C provides for special grants and revenue assignments to both Sabah and Sarawak, while Article 112D mandates periodic reviews of these grants.
These provisions are not mere administrative conveniences. They are constitutional instruments that place a fiduciary duty on the federation to honour the terms of MA63.
In this context, it is my view that the Malay rulers must, as constitutional guardians, carry out their solemn duty of ensuring that the discharge of such responsibilities is not impeded by short-term political considerations.
To that end, the prime minister’s statement on Wednesday urging restraint in the interpretation of the High Court’s ruling was timely.
Read constructively, it affirms the federal government’s continuing commitment to Sabah’s development. However, it also cautions against an interpretation of the relevant constitutional provisions and judgment merely according to political sentiment.
It goes without saying that the judgment must be anchored in jurisprudential clarity.
Contrary to popular sentiment, the question of whether the decision ought to be appealed is not a matter of political expediency. It is a question of constitutional jurisprudence.
In a matter of such gravity, only an authoritative pronouncement by the Federal Court can settle the issue conclusively. Even a decision of the Court of Appeal, however well-reasoned, remains appealable and subject to affirmation by the apex court.
The attorney-general (AG), as the guardian of public interest, cannot exercise his discretion arbitrarily. Political threats and pressures cannot override constitutional due process. To do so would undermine the rule of law.
It is rare in constitutional litigation of this magnitude for a High Court decision to stand unchallenged, especially when sovereign rights of both the state and the federation are at stake. The appeal process is not merely procedural; it is a safeguard against an erosion of constitutional principles.
In Malaysia, the discretion as to whether to appeal is vested in the AG. In matters of constitutional significance, convention demands that the AG advise the executive. Such conventions are not ornamental. They are structural safeguards built into the rule of law.
In Malaysia, the executive, legislature and judiciary are licensed to administer the nation in accordance with the constitution, but the ultimate custodianship of the rule of law rests with the Malay rulers.
For that reason, where national interest is implicated, the government is constitutionally obliged to consult the rulers.
The Sabah decision is, without doubt, a constitutional milestone.
Any appeal should not be seen as an act of defiance against the constitution, or MA63, or even the High Court’s order. Neither should it be seen as an act of oppression against the people of Sabah.
It is simply a necessary step in the pursuit of finality within the framework of the constitution and the rule of law in this country.
Ultimately, an appeal is a duty owed to Sabah, to the federation, and to constitutional order and the rule of law.
The views expressed are those of the writer and do not necessarily reflect those of FMT.