Borneonisation suit - People have right to sue

People have right to sue over 'Borneonisation' - High Court

by Kelimen Sawatan

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 (both  from Sabah Progressive Party SAPP) while senior federal counsel Rahazlan Affandi and State counsel Hajah Zaleha Rose Hj Pandin acted for Federal and State government respectively.