High Court sets Aug 21 to rule over Sabah State Assembly dissolution matter

Judicial Commissioner Leonard David Shim set the date after hearing clarification over more than four hours on submissions from counsel for Tan Sri Musa Aman and 32 other assemblymen, the applicants, as well as for Yang Dipertua Negeri Tun Juhar Mahiruddin and three others, the respondents.

He also allowed the applicants' counsel Tengku Fuad Ahmad to submit a written reply in response to oral submissions by the respondents' counsel.

The court is hearing the matter of justiciability (subject to trial in a court of law) in view of an application for leave for judicial review of the decision to dissolve the state assembly from Musa and the 32 assemblymen backing him.

They have named Tun Juhar as the first respondent, Sabah Chief Minister Datuk Seri Mohd Shafie Apdal as the second respondent, the Election Commission as the third respondent and the Government of Sabah as the fourth respondent.

Tengku Fuad made the request to submit the written reply, pointing out that the respondents' counsel had filed in their written submission only in the afternoon of Aug 14 instead of Aug 10 set by the court.

He also said that he needed to reply to an argument put forward by one of the respondents' counsel, Chung Jiun Dau, that did not meet the directive of Shim to clarify on the justiciability of Tun Juhar's action in dissolving the legislative assembly.

"We (the applicants' team of counsel) were caught by surprise when the respondents' counsel argued that the 33 assemblymen had no locus standi to question the first respondent's (Tun Juhar's) power to dissolve the state assembly," he said.

"In his argument, Tengku Fuad said the application for leave for judicial review was prompted after the letter by Mohd Shafie to Juhar requesting for the assembly dissolution came to light on the Twitter social media platform.

He said the applicants only saw Mohd Shafie "waving the letter" at a press conference announcing the assembly dissolution on July 30, but never got a copy.

He said the question is whether the letter is capable of invoking the Yang Dipertua Negeri's power to dissolve the state assembly.

"The basis upon which the second respondent (Mohd Shafie) purportedly requested the first respondent (Tun Juhar), via the written request (letter), for dissolution of the State Legislative Assembly is circumscribed by the Sabah Constitution. In this case, the basis of the said written request purports to be Article 10(1)(2)(b) of the Sabah Constitution.

"The said Article 10(1)(2)(b) is non-existent in the Sabah Constitution. Thus, the written request is fundamentally defective and no reliance can be placed on it by the first respondent or anybody else," he said.

Tengku Fuad also contended whether there was a proper basis for Mohd Shafie to request for the dissolution of the state assembly under a non-existent provision of the Sabah Constitution.

He also said that any other provision of the Sabah Constitution is for the court to determine as the courts are the ultimate interpreters of the state constitution.

In essence, Tengku Fuad submitted that the lawfulness of the written request made by Mohd Shafie to Juhar was justiciable.

"It is plain and obvious that it is for this court to construe the meaning, legal importance and lawfulness of the written request and whether the same is capable of invoking the first respondent’s constitutional powers to dissolve the State Legislative Assembly," he said.

Tengku Fuad submitted that there is sufficient material to show in court that the written request and proclamation on the dissolution of the state assembly fell short of the stipulated requirements authorising the exercise of power to dissolve the state assembly under the Sabah Constitution.

He said Tun Juhar had no constitutional basis upon which to act and thus, had acted ultra vires the powers conferred upon him under the Sabah Constitution.

Sabah Attorney General Brenndon Keith Soh said that in clarifying whether to grant leave for judicial review, one looks for the substance in the written request and Mohd Shafie had clearly requested that the state assembly be dissolved.

"The proclamation to dissolve the state assembly was a constitutional duty of the first respondent (Tun Juhar), following the second respondent's (Mohd Shafie’s) advice," he said.

Soh also said that the court can dismiss the application for leave if it is satisfied that Tun Juhar had the discretionary powers to dissolve the state assembly, that he had acted within the parameters and limits of the powers conferred upon him, and if Tun Juhar's powers within the state constitution to dissolve the state assembly were non-justiciable.

The lengthy hearing on arguments on justiciability was carried in a respectable manner between both sides arguing their cases. The hearing was held in a controlled environment, subscribing to the new normal to curb the spread of COVID-19.

Only three reporters from each of selected media agencies were allowed into the courtroom, along with four of the applicants, namely Datuk Jahid Jahim (Tamparuli incumbent assemblyman), Datuk Bolkiah Ismail (Pitas), Datuk Abidin Madingkir (Paginatan) and Datuk Osman Jamal (Balung).

A number of the applicants were seated outside the courtroom, waiting for the outcome of the hearing. The first applicant, Musa, incumbent assemblyman for Sungai Sibuga, was not sighted.

In their application for leave for judicial review, Musa and the assemblymen backing him are seeking court orders to quash Mohd Shafie’s request to Tun Juhar to dissolve the assembly; quash the proclamation of the dissolution of the assembly; and quash the Sabah state government gazette notification on the dissolution.

The 33 elected representatives claimed on July 29 that they made up the majority in the state assembly and wanted Tun Juhar to swear in a new government, thus toppling the state government of Mohd Shafie.

Mohd Shafie, who is Semporna MP and incumbent assemblyman for Senallang, pre-empted Musa’s move by advising Tun Juhar to dissolve the state assembly which had 65 members at that time, 60 elected and five nominated.