First round victory to Borneonisation suit against the governments

KOTA KINABALU: The "Borneonisation suit" brought by two Sabahans against two respondents, the Federal and State Governments, for failing to Borneonise Federal agencies in Sabah tasted a first-round victory at the High Court Friday (May 25).

Justice David Wong Dak Wah dismissed the application of both the first and second respondents' to strike out the suit brought by the duo last year. He had now fixed June 18 this year as a new mention date for the case which many see a test to Sabah special rights and autonomy within the Federation of Malaysia.

The judge in dismissing the respondents' application ruled that contrary to the respondents' contention, the Sabahan duo do have locus standi to sue the government in regards to their rights in relation to non-compliance of the Malaysia Agreement 1963. 
     

Former police inspector Bernard Fung Fon Chen, 70, and former teacher Mohd Nazib Maidan Dally, 35, filed the suit last year through their counsel Peter Marajin, seeking a declaration from the court that the first defendant had failed and/or neglected to expeditiously and fully carry out the Borneonisation of the federal public service in the state.

They are also seeking 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 in so far as the assurances, undertakings and recommendations relating to the Borneonisation of the federal public service in the state and which are not implemented by express provision of the Constitution of Malaysia.

Bernard and Mohd Nazib also seeked a declaration that the first defendant had failed and/or neglected to advise 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, particularly in the Federal departments in the state.

Apart from that, they are further seeking a declaration that the first defendant had failed to fully implement the specific assurance and recommendation 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 advise the Yang di-Pertuan Agong on the reservation of reasonable number of positions in the federal public services for the natives of the state.

The duo are also seeking 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.

Another reliefs sought by the two plaintiffs are declaration that the natives of Sabah or the people belonging to the State of Sabah have a legitimate expectation that the Borneonisation 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.

Bernard in his affidavit said that he joined the North Borneo police team in 1960 as a constable and was later promoted to the rank of inspector in 1966 and confirmed in the post in 1968. He said that after serving as an inspector for 13 years and serving with the police team for 19 years and six months, he resigned in 1980 as he was disappointed and given up for not being promoted to a higher rank.

He claimed that although he had the qualification and commitment to his work, he was denied of being promoted to the rank of Assistant Superintendent of Police (ASP).

“Although there were vacancies from time to time in Sabah and other parts of Malaysia, the vacancies had only been allocated to officers from the peninsula even though there were many qualified Sabahans like me who were ready to fill the vacancies,” Bernard said.

Thus, he said he filed this action against the Federal and State Governments for failing to fulfill the promises and assurance given to Sabah in 1962 and 1963 by the previous leaders and British colonial to let the State to implement the Borneonisation. He also referred this to, among others, the Malaysia Agreement dated July 7, 1963, Malaysia Act 1963, and the 20 points memorandum.

Meanwhile, Mohd Nazib in his affidavit said that he was an attachment teacher at SK Ulu Bole, Sipitang from 2002 to 2004. However, Mohd Nazib, who is self-employed, claimed that he tried very hard on three occasions to be accepted into the courses during school holidays, to be trained as a teacher, but in early 2005 his teaching job was abruptly terminated due to the discrimination of the Federal Government.

“As far as I know, there were teachers from the peninsula who were posted to various schools in Sipitang and other parts in Sabah after my service was terminated,” he said.

He said that the termination of his service was unconscionable because there were vacancies in the school and other schools in Sabah.

Mohd Nazib claimed that there were 5,245 unemployed graduates and diploma holders in Sabah.

“These qualified Sabahans could have been employed in the federal service. But only 38.33 percent of the federal heads of department in Sabah are of Sabah origin,” he said. He also claimed that only 77.9 percent of the 66,597 federal civil servants in Sabah are of Sabah origin and this excludes the armed forces.

Mohd Nazib said that he had no option except to seek legal action to make sure that the contractual rights, promises, undertakings and assurances in the Malaysia Agreement 1963, the Malaysia Act 1963, the IGC Report, the Twenty Point Memorandum and the Memorandum of the Malaysia Solidarity Consultative Committee on Malaysia submitted to the Cobbold Commission and the Federal Constitution of Malaysia are implemented to the full.

Both Bernard and Mohd Nazib were present at the High Court today, and so were Sabah Progressive Party (SAPP) President, Yong Teck Lee, and other SAPP leaders, the initiator of the Borneonisation suit.