International Agreement is only fairly enforceable overseas: Bid on Borneonisation ruling thrown out
Published on: Friday, August 21, 2015
Chief Justice of Malaya Justice Tan Sri Zulkefli Ahmad Makinudin together with Justices Tan Sri Suriyadi Halim Omar, Tan Sri Ahmad Haji Maarop dismissed Bernard Fung's and Mohd Nazib Maidan Dally's application for leave to appeal, Thursday, after hearing arguments from their counsel and the respondents.
Former policeman Fung, 72, of Inanam and former teacher Nazib, aged 37, of Sipitang had sought to obtain leave from the Federal Court following a Court of Appeal decision to overturn a High Court ruling that they have the locus standi to take the Federal and Sabah governments to court to implement the Borneonisation of the civil service as promised in the Malaysia Agreement 1963.
Fung and Nazib had named both the State Government and Federal Government as defendants in their suit at the High Court for failure to fulfil the promise of Borneonisation.
The High Court had on May 26, 2012 ruled that the claim by Fung and Nazib was justiciable and that they have the constitutional rights as Sabahans to do so and have the locus standi to bring the suit against the Federal and State government.
On Feb. 1, 2013 the Court of Appeal in a majority 2-1 decision overruled the High Court in Kota Kinabalu and held that the people of Sabah do not have the locus standi to sue the Federal and Sabah governments in a court of law.
The Appellate Court in its majority judgement said it agreed with the appellant (government) that the Borneonisation of the Federal public services in Sabah concerns a matter of policy within the purview of the executive arm of the government and in which only the Government of Malaysia had the exclusive information and knowledge.
Hence, the Appellate Court ruled that the Borneonisation policy was a non-justiciable matter and viewed that the duo did not have any cause of action against the Government of Malaysia and, therefore, their originating summons was unmaintainable, vexatious and an abuse of the judicial process.
The apex court on Thursday among others held that the applicants (Fung and Nazib) have used the wrong method and should have either filed a judicial review or get the consent of the Attorney General.
The court also questioned the status of the applicants and held that they have no grievance since they had left the service years before filing the suit.
The court said the two applicants would have grievance if they had filed for relief but they abandoned it and continued with their life and only years later filed the suit to impose their right.
The applicants' counsel Ken Yong had earlier submitted that the consent of the Attorney General was irrelevant because the present case was not a class action and that Sabahans or natives of Sabah can anytime go to the court if they see anything wrong with the State in respect of the Malaysia Agreement.
He agreed with the court that the applicants voluntarily left their job but submitted that they were seeking assurance on the undertaking in the Malaysia Agreement which had not been implemented and that they were seeking orders from the High Court.
On the locus standi, Ken submitted that the law was not settled yet and that it was an eminent place for the court to grant so that the issue of locus standi can be argued further and for the court to determine who really has locus standi.
Senior Federal Counsel Shamsul Bolhassan representing the Federal Government submitted the applicants lack locus standi in this case, saying even if they were representing the people of Sabah, they should take up a class action, with the go-ahead of the Attorney General.
He further submitted that the present issue is academic as the applicants had left the service voluntarily in 1980 and 2005, respectively, adding that if any action is to be taken, they should do so via judicial review. He applied for the leave application to be dismissed.
State counsel Mohd Ikhwan Ramlan who appeared together with Senior State Counsel DgKu Fazidah Pg Bagul in representing the State government adopted the SFC's submissions.
SAPP President Datuk Yong Teck Lee and several of the party's top officials were in court to support the Borneonisation case.