Federal Court allows Musa Aman to challenge Shafie's appointment as Sabah CM

Musa Aman (fourth from left) with his lawyers Tengku Fuad Tengku Ahmad (third from left) and Datuk Firoz Hussein Ahmad Jamaluddin (second right). (Photo by Hafiz Yatim/The Edge)

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PUTRAJAYA (Aug 26): The Federal Court has allowed Tan Sri Musa Aman leave to challenge the lawfulness of Datuk Seri Mohd Shafie Apdal's appointment as Sabah's Chief Minister, which may raise questions about the legality of the state election in Sabah that is scheduled to take place on Sept 26.  

The decision was reached on a two-to-one majority by a three-member bench chaired by Federal Court judge Datuk Seri Mohd Zawawi Salleh, with Mohd Zawawi himself dissenting, while his colleagues Datuk Abdul Rahman Sebli and Datuk Zabariah Yusoff were in favour of the ruling. Following this, a date will be fixed by the apex court to hear Musa's appeal.

This came after the Court of Appeal bench, earlier today, fixed Sept 7 to hear Musa and 32 other former Sabah assemblyman's appeal on their application for a judicial review of Sabah's Yang di Pertua Negeri and Shafie's decision to dissolve the state legislative assembly on July 30.

When met by reporters after the apex court's decision, Musa said he is thankful to God for today's victory and that he would issue a full statement later. He arrived at the Palace of Justice here in the afternoon for the hearing.

Sabah Attorney-General Brenndon Keith Soh, who appeared for the Sabah government and the Yang di Pertua Negeri Tun Juhar Mahiruddin, said although leave to appeal has been granted, no findings were made as to the merits of the case.

“In this respect, the decision of the Court of Appeal still stands until the Federal Court decides otherwise. We look forward to, and are confident of, the matter being ventilated and canvassed before the Federal Court,” he said.

In the aftermath of the 14th general election, Musa was re-appointed Sabah's CM on May 11, 2018 after two STAR assemblymen sided with him, following a stalemate between BN-Umno and Warisan-Pakatan Harapan, with both sides at the time having 29 seats each in the state assembly.

However, Shafie was appointed the CM a day later after six assemblymen from the BN-Umno camp switched sides, which resulted in  Warisan-PH gaining the majority in the state assembly. Subsequently, Musa launched his legal suit to challenge the legality of Shafie's appointment.

Justice Abdul Rahman, in arriving at the majority decision, said the issue raised by Musa is of great constitutional importance and ought to be resolved by the Federal Court.

“This issue is not academic and I am of the view that Musa's appointment was done validly and in accordance with the Sabah constitution. Under Section 3 of the Interpretation Act, the Federal Court is empowered to interpret the Federal Constitution and the Sabah Constitution.

“I rule that the appellant has crossed the threshold provided for under Section 96 of the Courts of Judicature Act 1964 (CJA) and that the appeal proper be heard,” Justice Rahman said in his judgment, to which Justice Zabariah was in agreement.

Musa was represented by counsel Tengku Fuad Tengku Ahmad, while counsel Datuk Firoz Hussein Ahmad Jamaluddin appeared for former Tamparuli assemblyman Datuk Jahid @ Noordin Bin Jahim, who had named Sabah legislative assembly secretary Datuk Bernard J Dalinting, state speaker Datuk Syed Abas Syed Ali and Shafie as respondents in a similar application filed.

The dissenting decision

Justice Mohd Zawawi, however, was of the opinion that Musa had not passed the Section 96 threshold for leave to be granted.

“The Sabah State Assembly had been dissolved on July 30, and the nomination day had been fixed on Sept 12, with election day on Sept 26. I find the challenge to be academic. The factual matrix is distinguished and there is no longer a live issue to be decided. Hence, I would dismiss the application with costs,” he said in his dissenting decision.

Firoz, in his submission earlier, argued that the issue of who was the rightful CM was not academic, and asked the court to revisit the case of then Perak Menteri Besar Datuk Seri Mohd Nizar Jamaluddin versus Datuk Seri Zambry Abdul Kadir. “Like in Zambry's case, the majority support gained must be properly established,” he said.

A-G Soh, who raised a preliminary objection to Musa's application with Senator Datuk Theodore Douglas Lind, who appeared for Shafie, insisted that the matter was academic as the state assembly had been dissolved, with the election date set.

He added that Musa should not be allowed to challenge the constitutionality of Shafie's appointment when Musa and others were challenging the dissolution of the assembly.

Musa filed 10 questions of law in his application to challenge Shafie's appointment as CM. With the apex's court decision today, this issue, together with whether the majority control of the state assembly can be determined outside the legislative assembly — as was established in the Mohd Nizar versus Zambry case — will be decided by the apex court when the full merits of Musa's challenge is heard.

Commenting on today's decision, Firoz said it was a vindication of what Musa is fighting for, adding that millions of Sabahans would be delighted with the verdict. He, however, downplayed the impact that the decision might have on his client's appeal for a judicial review on the dissolution of the state assembly.

Tengku Fuad, meanwhile, said he is looking forward to the hearing of Musa's challenge and for the merits of the case to be reviewed before the Federal Court.

Edited by Tan Choe Choe