KOTA KINABALU, May 26, 2012: The High Court dismissed an application by
the federal and state governments to strike out a suit brought by a
former policeman and a former teacher seeking several declarations
relating to the Borneonisation policy.
Justice Datuk David Wong Dak Wah, in his reserved judgement yesterday,
ruled amongst others that former Inspector Bernard Fung Fon Chen, 70,
and former attachment teacher Mohd Nazib Maidan Dally, 35, possess the
locus standi to bring the suit against the federal and state
governments, who are named the first and second defendants
respectively.
Wong held that the natives of Sabah particularly in this case who feel
that the government has failed to implement the assurance and
undertaking referred to under the Malaysia Agreement has the right to
come to court for the court to decide whether the government has failed
to implement those undertaking and assurances.
He rejected the contention by the defendants that the proper party to
sue should be the state government as the parties to the Malaysia
Agreement were the governments and not the plaintiffs under the present
case, and he held that the people are the beneficiaries of the
Agreement.
Wong stressed that the people have the right to go to the court to
litigate and should not be deemed as persons not party to the said
Agreement.
The judge also pointed out that the court has the power to decide the
issue on whether the governments have failed to implement the
provisions of the Borneonisation policy under the Agreement and
affirmed that the declarations sought by Fung and Mohd Nazib are
triable issues.
Wong also dismissed the argument put forward by the defendants that the
proper avenue to raise the matter was by way of a judicial review.
The court set June 18 for re-mention of the case.
In their originating summons filed on August 8, 2011, Fung and Mohd
Nazib are seeking for a declaration that the first defendant had failed
and/or neglected to expeditiously and fully carry out the
Borneonisation policy in the federal public service in the State.
They are also seeking for a declaration that the second defendant had
failed and/or neglected to fully implement the assurance, undertakings
and the recommendations contained in the Report of the
Inter-Governmental Committee (IGC), 1962 dated Feb 27, 1963 insofar as
the assurances, undertakings and recommendations relate to the
Borneonisation of the federal public service in the State and which are
not implemented by express provision of the Constitution of Malaysia.
Fung and Mohd Nazib also seeking a declaration that the first defendant
had failed and/or neglected to advice the Yang di-Pertuan Agong under
Article 153 (2) of the Federal Constitution to ensure the reservation
for the natives of the State of Sabah such reasonable number of
positions in the public service of the Federal Government, in
particular in the Federal Departments in the State.
Apart from that, they are further seeking for a declaration that the
first defendant had failed to fully implement the specific assurance
and recommendation contained in paragraph 7 of Annex B to the IGC
Report 'that the Chief Minister of the second defendant shall be
consulted before the Federal Cabinet shall advice the Yang di-Pertuan
Agong on the reservation of reasonable number of positions in the
federal public service for the natives of the State.'
The duo are also seeking for a declaration that the second defendant
had failed to take such executive or other appropriate action as shall
be necessary to implement the assurance and recommendation contained
the IGC Report that before advice by the Federal Cabinet is given to
the Yang di-Pertuan Agong in respect of the exercise of his power under
Article 153 such advice in relation to the state of Sabah shall be
given only after consultation with the Chief Minister of the State of
Sabah.
Other reliefs sought by the two plaintiffs are a declaration that the
natives of Sabah or the people belonging to the State of Sabah have a
legitimate expectation that the Borneonisation policy of the federal
public service in the State in terms of the assurances and undertakings
in the IGP Report shall be fully and expeditiously implemented, costs
and other relief as the court may deem fit and proper to grant.
Fung and Mohd Nazib are represented by counsels Ken Yong and Peter
Marajin while senior federal counsel Rahazlan Affandi and State counsel
Hajah Zaleha Rose Hj Pandin acted for Federal and State government
respectively.
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