Kota Kinabalu: Former Sabah Law Society (SLS) President Datuk Roger Chin has welcomed the Federal Government’s decision not to appeal the High Court’s recognition of Sabah’s 40 per cent constitutional entitlement, describing it as a significant step, but one that warrants cautious optimism.
Chin said the announcement signalled that Putrajaya was now acknowledging Sabah’s constitutional right to the 40 per cent special grant under Article 112C and the Tenth Schedule of the Federal Constitution, a safeguard entrenched at the formation of Malaysia.
“It marks an important step forward,” he said in a statement Wednesday.
However, he cautioned that the intended appeal on parts of the judgment’s reasoning means the implications must still be watched carefully, particularly as they could affect how past non-compliance and arrears are treated.
He noted that the Federal Government would not appeal the High Court’s recognition of Sabah’s 40 per cent entitlement.
“However, it intends to file an appeal regarding defects in the judgment’s reasoning, particularly the findings of abuse of power and issues surrounding the review orders,” said Chin.
He added that the AGC also confirmed that negotiations between the Federal and Sabah Governments would begin immediately to implement the constitutional review process under Article 112D.
Chin said the Notice of Appeal had not yet been filed and, until it is lodged, the precise grounds of appeal remain uncertain.
He explained that, based on the AGC’s statements, the appeal is expected to address two key aspects – the court’s declaration that both the Federal and State Governments acted unlawfully for failing to conduct proper constitutional reviews since 1974 and the finding that the Second, Third and Fourth Review Orders under Article 112D were invalid.
“If the appeal is indeed limited to those parts of the judgment, the operative portions of the High Court’s decision, which confirmed Sabah’s 40 per cent entitlement and directed both Governments to review and implement it, remain binding and enforceable,” he said.
Chin stressed that practically, the 40 per cent entitlement itself is not under appeal and the appeal does not suspend the implementation of the constitutional grant or the duty to begin negotiations.
“What is potentially being re-examined is the court’s reasoning on fault and the validity of the review mechanisms, once the Notice of Appeal is filed.”
He warned that if the appellate courts overturn either or both of those findings – of abuse of power and the invalidation of the review orders – it could affect the High Court’s treatment of the “Lost Years” between 1974 and 2021.
“If the review orders are restored as valid, they could be treated as having lawfully modified the 40 per cent entitlement, meaning there would no longer be a constitutional gap – and the ‘Lost Years’ might no longer be payable,” he said.
Similarly, Chin said if the appellate courts set aside the declaration that the Federal Government acted unlawfully for failing to conduct proper reviews with the State Government, the delay could then be viewed as an administrative lapse rather than a constitutional breach, making arrears for the Lost Years a matter for negotiation rather than a judicial entitlement.
“Nevertheless, the 40 per cent constitutional right itself remains intact moving forward. The appeal, as stated by the AGC, goes only to the reasoning, not the right,” he said.
Chin summarised that the 40 per cent entitlement stands and is not currently under appeal, while the High Court’s operative orders remain binding unless varied by a higher court.
“By agreeing to commence negotiations immediately, the Federal Government has in effect accepted the High Court’s mandamus order to conduct a lawful and timely review under Article 112D,” he said.
“This is a moment that calls for clarity, commitment and constitutional fairness. While the Federal Government’s acceptance of Sabah’s 40 per cent right is a step in the right direction, it should be received with cautious optimism,” Chin said.
He added that the forthcoming Notice of Appeal and its handling would reveal whether Putrajaya’s commitment was genuine and whether the constitutional promise to Sabah would finally be honoured in full, not just in words.
