Borneonisation suit may head for UN

Joseph Francis

The Sabah Progressive Party (Sapp) may go all the way to the United Nations if it cannot get justice at the Federal Court.

NEWS ANALYSIS Senior Sabah lawyer Peter Marajin is mulling over the possibility of getting the Federal Court to revisit its own ruling on the Borneonisation suit and revise it. He hopes the written grounds rejecting the suit will be available within a reasonable period of time to facilitate another attempt in the Federal Court.

The Sabah Progressive Party (Sapp), his party, has meanwhile warned in a brief statement that it may go all the way to the United Nations if it cannot get justice at the Federal Court.

The case was knocked out in the Federal Court in late August when ex-policeman Bernard Fung Fon Chen, 73, and former attachment teacher Mohd Nazib Maidan Dally, 38, the plaintiffs, failed to obtain leave to file their appeal.

Chief Judge of Malaya Zulkefli Ahmad Makinudin, presiding together with Federal Court judges Suriyadi Halim Omar and Ahmad Haji Maarop dismissed the application on the grounds the duo were just individuals and had no grievances. If they wanted to launch a class action suit representing the people of Sabah, the Court held, they should have first obtained the consent of the Attorney General (AG). ?Since they didn?t obtain the consent of the Attorney General, they have no locus standi,? the Court held.

The Court noted that the duo kept quiet all these years and suddenly woke up to go to Court to sue the government. ?All these years they did nothing about Borneonisation of the civil service in Sabah and Sarawak.?

Senior Federal Counsel Shamsul Bolhassan, during his arguments, stressed that only the Attorney General could take up a class action suit and that the plaintiffs therefore did not have locus standi. ?If they were representing the people of Sabah, it should be a class action suit, and only the AG could take up such a case.?

State Counsel Mohd Ikhwan Ramlan and Senior State Counsel Dayangku Fazidah Hatun Pg Bagul, who represented the Sabah Government, absorbed Shamsul?s submissions.

Lawyer Ken Yong, for the plaintiffs, earlier argued that any Sabahan or Native of Sabah can wake up one day and go to Court if they see anything wrong with Sabah with respect to the Malaysia Agreement 1963 (MA63). ?The consent of the AG was irrelevant because this was not a class action suit.?

?The case involves public interest and the two individuals were representing the people of Sabah generally but not as a class action suit.?

Fung and Nazib initiated the suit in 2011, by way of an Originating Summons, to compel the Federal Government to implement the promise of Borneonisation of the civil service in Sabah and Sarawak as provided for under MA63.

The Federal and Sabah Governments were named first and second defendants.

The High Court of Sabah and Sarawak, formerly the High Court of Borneo, on 25 May 2012 dismissed an application by the Federal and Sabah Governments to strike out the suit. The High Court ruled that the plaintiffs had locus standi.

The Court of Appeal allowed the appeal by the Federal and Sabah Government on 1 Feb 2013.

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