I REFER to the recent claim by heirs of defunct Sulu Sultanate. This topic has been the subject of many reports in Sabah over the past few weeks. The sudden interest arises from the seizure of Petronas’s assets in Luxembourg after the infamous arbitration award.
This topic has also generated response from many people including the former Attorney-General of Malaysia. I will not add to the dust kicked up by the many views. This Article is only to look at the Sultan of Sulu’s Monetary Claim (“said Claim”) from the perspective of the Federal Constitution of Malaysia (“FC”) and the Constitution of the State of Sabah (“SabahSC”).
The brief undisputed background to the said Claim is that the Sulu Sultan had on 22.01.1878 granted their “North Borneo Territory” to the British North Borneo Company for a fixed annual compensation of five thousand dollars only (“said Compensation”).
The last Sultan of Sulu, Sultan Jamalul Kiram II died on 07.06.1936 with no heirs named resulting in multiple claims to the throne and to the said Compensation.
The Republic of Philippines was established on 04.07.1946 and took jurisdiction over the defunct Sulu Sultanate.
In the meantime, the North Borneo Territory became Sabah and on 16.09.1963 together with other territories formed the Federation of Malaysia.
Since the said Claim is about Sabah, which is now an independent state in Malaysia, what is the role in this matter for the State Attorney General (“StateAG”) and the Federal Attorney-General (“FedAG”)?
Article 11(1) SabahSC provides for the appointment of the StateAG without expressly stating his duty as follows: “11. (1) The offices of ... State Attorney General ... appointments thereto shall be made by the Yang di-Pertua Negeri acting in accordance with the advice of the Chief Minister, who shall select for appointment a person ... and shall, before tendering his advice, consult the Government of the Federation.” . Therefore it is clear the appointment of the StateAG must be after consultation with the Government of Malaysia.
The duty of the FedAG is under article 145 of the FC and expressly states as follows: “(2) It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters ... and to discharge the functions conferred on him by or under this Constitution or any other written law.”. Therefore it is clear that the duty of the FedAG is to discharge functions conferred on him under the FC or by law.
In this case, since the said Claim was against the Federal Government of Malaysia and not the state government, paragraph 24(1)(a) of the Government Proceedings Act 1956 (“said Act”) is relevant and states as follows: “...24. (1) (a) ...in civil proceedings by or against the Federal Government ... a legally qualified member of the Federal or State Attorney General’s Chambers authorized by the Attorney General for the purpose may appear as advocate on behalf of such Government ...” Therefore it is clear that it is not necessary for the FedAG to appoint anyone from the StateAG to assist him in matters concerning the state of Sabah.
There are many issues arising. Firstly, is this a prudent law or whether the StateAG should by law be appointed to assist the FedAG in all matters that affects the state of Sabah?
In other words, in all local matters affecting Sabah, whether the StateAG views must be taken into account and may even prevail over that of the FedAG?
Secondly, what happens if there is a difference of opinion between the StateAG and the FedAG?
I will address the second question first. In the Supreme Court of Canada case of Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31, it was held as follows:-
“The Parliament of Canada and each Provincial Legislature is a sovereign body within its sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matters assigned to it under s. 91 or s. 92, as the case may be. Neither is capable therefore of delegating to the other the powers with which it has been vested nor of receiving from the other the powers with which the other has been vested.”
Therefore the duties of the Attorney-General of the individual Provinces of Canada are separate and distinct from the duties of the Attorney-General of Canada.
Should the same principle of law be applied to Sabah? If the same principle of law in the Canadian case is applied to Sabah, the StateAG of Sabah will have more autonomy and power to act as compared to the FedAG where the state is the main subject of the civil suit against the Federal Government. Would this state of events have generated a different result in the said Claim? There is no easy answer to this question.
In this case, it cannot be over emphasised that the FedAG Chambers has enormous legal resources and personnel which is not available in the StateAG Chambers.
No doubt the FedAG Chambers is one of the best legal chambers in Malaysia with some of the best brains that the country has.
On the other hand, credit must also be given to the StateAG Chambers and their legal counsel for their sterling performance in all matters placed before them. The point is that nothing beats a local boy fighting for his own homeland.
This is where fighting for his own home has all the marks of a different caliber.
Therefore there is reason to suggest that a local boy or boys with skin in the game is more likely to be better and highly motivated to fight and argue a case as compared with a high caliber attorney with no sentiment attached to the case.
Notwithstanding the above, it is not the intention of this Article to belittle or in any manner play down the efforts already done by the FedAG Chambers and the StateAG Chambers of Sabah as regards the said Claim.
However, in this respect it must be remembered that the saying by Lord Chief Justice Hewart of England that “Justice must not only be done, but must also be seen to be done” demands a more visible role for the StateAG in all matters concerning the state.
Therefore, it is important for the StateAG to be allowed to play their role to safeguard the constitutional rights of Sabah in the said Claim.
Coming back to the first question, it may be necessary to amend various provisions of the law so t hat the rightful position of the StateAG and their officers as the top legal officer advising the state government should be paramount.
This is necessary so that there is no question of whose views should prevail in the event of a difference of opinion between the StateAG and the FedAG on matters affecting Sabah.
It is not surprising that the constitution of the states of Selangor, Pahang, Penang, Negeri Sembilan, Johor and Terengganu all have the same or similar provision in that the State Legal Adviser “...shall advise on legal matters referred to him by His Highness or the State Government...”.
Therefore, it is clear that the State Legal Adviser of those states mentioned, only has duties toward their respective state which may even prevail over that of the FedAG.
The StateAG of Sabah should be accorded the same if not higher status than the State Legal Adviser of the peninsular states.
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