PUTRAJAYA (Sept 11): The Sabah State election is set to proceed as scheduled after the Federal Court today dismissed an application by former Tamparuli Assemblyman Datuk Jahid @ Noordin Jahim for a stay of the polls pending the disposal of the “two Chief Ministers” case.
Nominations are slated for tomorrow and polling day is Sept 26.
Jahid, who is expected to defend the Tamparuli seat under the PBS ticket, sought the stay pending the disposal of former Sabah Chief Minister Tan Sri Musa Aman's appeal over who should have been the rightful Chief Minister since May 2018.
Federal Court judge Datuk Abdul Rahman Sebli, who led a bench that included Justice Datuk Zabariah Mohd Yusof and Justice Datuk Mary Lim, said this is a unanimous decision.
“The bench fully appreciates the importance of preserving the integrity of the applicant (Jahid) position, but we at the same time are also mindful of preserving the integrity of the democratic process through election.
“Overall the balance of convenience of greater public interests far outweigh the interests of the appellant. We are not persuaded to exercise our discretion in granting the stay. In the circumstances, the application is dismissed with no order as to costs,” said Justice Abdul Rahman.
Musa, who was present throughout the proceedings with his son and Sipitang MP Yamani Hafez Musa, declined to comment on the decision as the duo left in a hurry.
Musa has not been named as a candidate for UMNO and BN in the upcoming election.
When the case came up in the morning, Musa’s counsel Tengku Fuad Tengku Ahmad informed the court that his client had filed a similar application of stay at 6pm yesterday, and wanted the application heard together with Jahid's matter.
However, Sabah attorney-general Brenndon Keith Soh, who represented the State Legislative secretary and Speaker, and caretaker Chief Minister Datuk Seri Shafie Apdal’s lawyer Datuk Dr Cyrus Das objected to a joint hearing as they had not been served with the papers.
They said they also have to take instructions on Musa’s application and therefore they preferred that only Jahid's matter be heard. The court concurred and said Musa's matter can be heard on another day.
Recusal of judges
Das also informed the court that he is making an oral application and wanted Justice Abdul Rahman and Justice Zabariah to recuse themselves from hearing Jahid's stay application.
The senior lawyer feared the possibility of a notion of a real risk of bias if they choose to remain, as both of them were in the majority apex court decision last week that granted leave for Musa and Jahid to challenge Shafie's position as Chief Minister.
“Furthermore, Shafie had filed an application for review of last week's decision under Rule 137 of the Federal Court rules. This is also confirmed by the filing of an affidavit in support of the review affirmed by Shafie,” Das said.
Soh agreed, saying both judges should recuse themselves
Jahid's counsel Datuk Firoz Hussein Ahmad Jamaluddin objected to the application, and said that if they want the recusal, the matter should be heard in open court and done by Monday so that the possibility of a new panel is addressed.
Justice Zabariah in her decision said she would remain on the bench to hear the application as the respondents have not shown or passed the threshold of bias on her for her to remove herself.
Similarly, Justice Abdul Rahman also said he found no valid reason for him to rescuse himself.
Both Justice Abdul Rahman and Justice Zabariah were part of the majority three-member bench that last week granted leave to Musa and Jahid to challenge the constitutionality of Shafie as the Chief Minister.
A date has yet to be fixed to hear the merits of Musa’s and Jahid's appeal.
Submissions for stay and against
Firoz, in his submission at the Federal Court today, said a stay was appropriate in this case as if the court decides that Musa should have remained as the rightful Chief Minister of Sabah, then the Sept 26 election is deemed unconstitutional.
“The matter as to who is the rightful Chief Minister cannot be left hanging, as we had posted 10 questions of law for the determination of the Federal Court to determine and these questions would be deemed academic in the event this election is not stayed,” he said.
“Musa's removal is unconstitutional and this would not be caused following Shafie's ascension and this had led to the most volcanic crisis in the island of Borneo. It would erode public confidence in the political system due to the instability,” the counsel said, adding that Jahid is a collateral Assemblyman with Musa.
Das argued that the 10 questions of law posed concerns the removal and appointment of the Chief Minister and had nothing to do with dissolution of the Assembly.
He said the application is an abuse of the court process as on Tuesday, the Court of Appeal had dismissed the appeal by Musa and 32 other former Assemblymen for leave for judicial review in challenging the dissolution of the Sabah Assembly last July 30.
“This stay is an extension of that application where the 33 had yet to file for leave to appeal to the Federal Court. They have also withdrawn their application for stay in that appeal,” he said.
Das said any withholding of the election would affect more than 200 candidates in 73 State seats and 1.12 million voters where the candidates would have to pay their deposits today.
Soh, in his submission, argued that throughout the two years, there have been seven Legislative Assembly seatings and no motion of no confidence was tabled against Shafie, and that two State Budgets had been passed.
“The dissolution of the Assembly had already been decided,” he said.
Senior Federal counsel Suzana Atan said elections had to be called within 60 days of the dissolution of the Assembly and the last day for this is Sept 28.
“Hence, elections have to be called,” he said.