Leave to appeal warranted as questions of law posed are novel, of public importance — Hafiz Hassan

APRIL 28 — In “Will AG seek leave of Federal Court to appeal against Court of Appeal’s decision?” I referred to the case of Attorney General of Malaysia v Sabah Law Society [2024].

In that case, the High Court had granted the Sabah Law Society (SLS) leave to apply for judicial review of the Federal government’s failure to review the amounts payable to Sabah between the years 1974 and 2021 under a Special Grant provided for Sabah under Article 112C read with Article 112D and Section 2 of Part IV of the Tenth Schedule of the Federal Constitution (FC’).

SLS’s grievance was that a second review of the Special Grant was not made by the end of 1974 as was provided for in Article 112D(4) of the FC.

Instead, on April 20, 2022, the Federal government had passed a review order providing only for annual grants payable to Sabah for the five years from 2022 until 2026 without making any provision for the “lost years” between 1974 and 2021.

SLS took the position that the failure to review the Special Grant prior to 2022 was a breach of the Federal government’s constitutional duty towards Sabah.

Through the judicial review application, SLS sought to compel the Federal government to comply with its obligations to Sabah in accordance with the provisions of the FC.

The Court of Appeal (COA) affirmed the High Court’s decision to grant leave to SLS.

The attorney general (AG) sought leave of the Federal Court under Section 96 of the Courts of Judicature Act 1964 (CJA) to appeal against the COA’s decision on the following questions of law:

• whether SLS’s application for judicial review fell within the Federal Court’s exclusive jurisdiction under Article 128(1)(b) of the FC;
• whether SLS had locus standi to file the application for judicial review and whether the subject-matter of the judicial review was justiciable.
• The Federal Court unanimously refused leave to appeal. The apex court ruled, among others, as follows:
• the AG’s application for leave to appeal was not in relation to the substantive merits of SLS’s application for judicial review but related purely to the decisions of the courts below — that is, the High Court and COA — to grant SLS leave to apply for judicial review;
• the matter was related to the threshold standing or locus standi rather than substantive standing in a judicial review application. On the law as it stood, SLS had locus standi to commence judicial review;
• there was no reason to warrant the grant of leave to appeal under Section 96 of the CJA as the matter dealt with was whether the failure to review and provide Sabah’s Special Grant amounted to a breach of the relevant provisions of the FC, and for prayers to remedy the same. That was not a matter of policy. Therefore, the grant of leave was not warranted and the matter should proceed to be heard on its substantive merits.

In contrast to the above, the Federal Court this morning (April 28) allowed the AG’s application for leave to appeal against the Court of Appeal’s majority decision to grant former prime minister Najib Abdul Razak leave to apply for judicial review.

In the AG’s application for leave to appeal, seven questions of law were proposed to be heard in the appeal. Four of them involve the issue of admissibility of fresh evidence and the rest involve the AG’s role in judicial review proceedings.

“The questions posed are novel and of public importance which should be fully ventilated before this court,” Chief Judge of Malaya Hasnah Mohammed Hashim, who chaired the three-judge panel of the Federal Court, said.

So let the questions of law be fully ventilated before the Federal Court.

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