The court affirmed that the Sabah Law Society has standing to seek judicial review regarding the Federal Government's failure to conduct a review of Sabah's Special Grant, emphasizing public interest and justiciability.

JUDGMENT

Ravinthran Paramaguru JCA:

Introduction

[1] The appeal before us is by the Federal Attorney General (AG) against the decision of the High Court under O 53 of the Rules of 2012 to grant leave to commence a judicial review application. The applicant is the Sabah Law Society (SLS), which is a body set up under the Sabah Advocates Ordinance (Sabah Cap 2). The putative respondent in the judicial review leave application is the Federal Government (intituled as the Government of the Federation of Malaysia). The AG was served with the judicial review leave application not in his capacity as a respondent, but because O 53 r 3(3) of the Rules of 2012 requires it. However, at the outset, the State Government of Sabah, through its then counsel, who is a private practitioner, applied successfully to intervene as a party. Consequently, the Sabah Government was added as the 2nd respondent. Thus, both Senior Federal Counsel (SFC), who represented the AG, and counsel for the Sabah Government, appeared at the judicial review leave hearing in the High Court and presented arguments.

[2] Leave was granted by the High Court to commence the judicial review application. The AG, who had objected to the leave application, filed the instant appeal against the decision of the High Court. The Sabah Government, whose then counsel urged the High Court to dismiss the leave application "insofar as the same seeks substantive review of the contents of the 1970 and 2022 Orders", did not file any appeal.

[3] However, just weeks before this appeal came up for hearing, counsel for the Sabah Government filed an application to intervene in this appeal. Counsel for the SLS objected to the application on the ground that the Sabah Government chose not to appeal the decision of the High Court to grant leave for its judicial review application. We allowed the application as, notwithstanding the fact that no appeal was mounted against the decision to grant leave, the Sabah Government obviously has an interest in the outcome of this appeal by the AG.

[4] Learned counsel for the Sabah Government presented lengthy written and oral submissions arguing that the SLS has no locus standi and that the matter at hand is non-justiciable. However, shortly after the conclusion of the instant appeal hearing before us, at a case management hearing before the Deputy Registrar to fix a decision date, the Sabah Attorney General (SAG) appeared in person and informed the Court that the appointment of the private practitioner as counsel for the Sabah Government had been revoked. The Deputy Registrar was also informed that the SAG is withdrawing all arguments made by the said counsel before us. A letter to that effect was also sent to the Court registry. When we reconvened to deliver the decision this morning, the SAG also appeared before us and gave oral confirmation of the same. The SAG was also content with the matter proceeding to the substantive hearing stage and being ventilated on its merits. As we are not functus officio, we shall accordingly disregard the arguments canvassed before us by the previous counsel for the Sabah Government.

The Judicial Review Leave Application

[5] The judicial review application has to do with the Special Grant provided for Sabah under art 112C and s 2 of Part IV of the Tenth Schedule of the Federal Constitution . The Special Grant was something that was agreed to by all the parties when Sabah, Sarawak and Singapore formed Malaysia by signing the Malaysia Agreement 1963 on 9 July 1963 with the Federation of Malaysia and United Kingdom. The Special Grant is subject to review under art 112D. For the sake of convenience, we set out the relevant provisions of the below. Article 112C (1)(a) provides as follows:

112C. Special grants and assignment of revenue to States of Sabah and Sarawak

(1) Subject to the provisions of art 112D and to any limitation expressed in the relevant section of the Tenth Schedule:

(a) the Federation shall make to the States of Sabah and