PUTRAJAYA (Sept 8): The Court of Appeal today dismissed the appeal for leave to seek a judicial review challenging the dissolution of the Sabah legislative assembly by the state's ex-chief minister (CM) Tan Sri Musa Aman and 32 other former assemblymen.
Justice Datuk Abdul Karim Abdul Jalil, who led the three-member bench, ruled that the decision is unanimous and there was no appealable error in the Kota Kinabalu High Court decision.
“We are of the considered view that the dissolution of the assembly (by the Yang di-Pertua Negeri Tun Juhar Mahiruddin) is not amenable to judicial review. The court is not in the position to interfere in the affairs of the state assembly, namely the dissolution as it is the Yang di-Pertua Negeri's absolute discretion on July 30.
“The appeal is dismissed and we will write our full grounds later,” said Justice Abdul Karim.
The other judges on the bench are Justices Datuk Abu Bakar Jais and Datuk Supang Lian.
The bench also made no order as to costs to be paid by Musa and the others.
Initially, only the Election Commission (EC) was named as a respondent in their bid to declare the dissolution of the assembly on July 29 null and void. However, ex-Sabah CM Datuk Seri Shafie Apdal, the Sabah government, and Juhar were later added as respondents as the challenge involved constitutional issues.
The bench also dismissed an oral application for a stay of the decision made by counsel Datuk Firoz Hussein Ahmad Jamaluddin, who appeared alongside Tengku Fuad Tengku Ahmad on behalf of the assemblymen.
Firoz sought the stay pending an appeal at the Federal Court. However, an objection was raised by Sabah's Attorney General Brenndon Keith Soh, Datuk Dr Cyrus Das, who appeared for Shafie, and counsels from the Federal Attorney General's Chambers Suzana Atan and P Narkunavathi, who represented the EC.
Soh argued that as there is no appeal before the apex court at this juncture, the appellate court should reject this application. Meanwhile, Das pointed out that there was only around 72 hours left before the state elections’ nomination day on Sept 12.
“I understand that 30,000 personnel have been mobilised for the elections, with returning officers appointed, and 64 nomination centres have been readied. The election must be held within 60 days of the dissolution as stipulated in the constitution. To allow a stay would result in too much disturbance on the ground.
“Furthermore, the candidates who want to contest should know where they can stand [for elections],” he said.
Suzana concurred with Das. With that, the bench dismissed the stay application.
While Musa did not want to comment on the decision, Firoz hinted that they would appeal for leave to the Federal Court before the election, which is scheduled on Sept 26.
In his submissions today, Das said the decision by Juhar to dissolve the assembly was non-justiciable as the Sabah governor has “absolute discretion” like the Malay rulers to dissolve the assembly.
Shafie had made the request via a letter dated July 29, 2020, to Juhar seeking the dissolution, which he acceded the next day.
Firoz replied that they were not challenging the Yang di-Pertua’s absolute discretion, but the advice given by Shafie, representing the Sabah government, to dissolve the assembly, as the statutory declarations produced showed that Musa had the majority.
It was reported on Aug 21 that Kota Kinabalu High Court Judicial Commissioner Leonard David Shim had found that Shafie acted within the limits of the Sabah Constitution in requesting Juhar to dissolve the state assembly.
“Tun Juhar had acted within the ambit of his constitutional power to dissolve the state assembly,” he added.
The Kota Kinabalu High Court also found the proclamation to dissolve the state assembly to be constitutional and valid. Shim said the court had looked into the substance rather than the form of the letter from Shafie to Juhar.