Lawyer argues court has to decide on validity of Sabah assembly dissolution

Counsel Datuk Firoz Hussein Ahmad Jamaluddin said High Court Judicial Commissioner Leonard David Shim had erred in law in denying 33 assemblymen their application for leave for a judicial review to challenge that decision of the Yang Dipertua Negeri.

Firoz is representing the 33 assemblymen led by former Sabah chief minister Tan Sri Musa Aman in appealing against the Kota Kinabalu High Court decision dismissing their application for leave for a judicial review to challenge the decision of Sabah Yang Dipertua Negeri Tun Juhar Mahiruddin in dissolving the state assembly on July 30.

“The application involves an important constitutional power which the court should have heard on its merits,” he said, urging the Court of Appeal to allow the appeal and have the case remitted back to the High Court for a hearing on the merits of the judicial review application.

He also said that the case is justiciable (meaning it is subject to trial in a court of law) as it involves constitutional discretion and, therefore, the High Court should not have summarily dismissed it at the application-for-leave stage.

In filing their application for leave for the judicial review, Musa and the other assemblymen had named Tun Juhar as the first respondent; Sabah Chief Minister Datuk Seri Mohd Shafie Apdal as the second respondent; the Election Commission (EC) as the third respondent and the Government of Sabah as the fourth respondent.

Firoz submitted today before a three-panel bench chaired by Datuk Abdul Karim Abdul Jalil in the appeal brought by the 33 assemblymen against the Kota Kinabalu High Court dismissal of their application for leave for a judicial review to challenge the decision of the Yang Dipertua Negeri on July 30.

The two other judges on the panel are Datuk Abu Bakar Jais and Datuk Supang Lian.

Firoz argued that Mohd Shafie had no right to advise or request Tun Juhar to dissolve the state assembly as he had lost the majority support of the 65 assemblymen.

He said that on July 29, Musa had submitted 33 statutory declarations to the Istana stating that Mohd Shafie had lost majority support and that the 33 assemblymen had gathered to meet the Yang Dipertua Negeri.

“However, they (the 33 assemblymen) were told to come the following day. At about 11 pm on July 29, Mohd Shafie had an audience with the Governor (Yang Dipertua Negeri) and, on July 30, he (Tun Juhar), upon receiving the advice of Mohd Shafie, had dissolved the state assembly.

“This is a constitutional issue. He (Tun Juhar) must exercise his constitutional discretion to deal with the issue; not become a mere rubber stamp,” he said.

The lawyer further argued that the prevailing COVID-19 pandemic is not the right time to hold the Sabah state election, pointing out that the last state election was held two years ago and the next will be due in 2023.

“Why go for another election during the present COVID-19 pandemic,” he submitted.

Counsel Datuk Cyrus Das, acting for Mohd Shafie and the Sabah government, argued that the Yang di-Pertuan Agong, the Malay Rulers and the Governors (Yang Dipertuas Negeri) have absolute discretion to dissolve their legislatures.

Citing Article 40 (2) of the Federal Constitution, Article 10(2)(b) of the Sabah State Constitution and Article 36(2) of the Perak State Constitution, Das said the articles give them the discretion to dissolve Parliament or a state assembly.

He submitted that the discretion in using such powers conferred on them has always been recognised as a non-justiciable decision.

“Never in 61 years and never in our country's constitutional history has there been any challenge against the Yang di-Pertuan Agong for dissolving Parliament because it has always been recognised as not justiciable before the courts of law,” he said.

Sabah Attorney-General Brenndon Keith Soh, representing Tun Juhar, submitted that the dissolution was allowed to return the mandate to the people of Sabah as this is to allow for the democratic process in the country.

Referring to the Perak constitutional crisis as well as the decision of then Sabah Yang Dipertua Negeri Tun Adnan Robert in granting the dissolution of the legislative assembly within one year from the date of the previous state election, he said Tun Juhar has rightly exercised his discretion to dissolve the legislative assembly.

Musa was present in court with several other assemblymen.

The hearing continues tomorrow with Das to resume giving his submission.

The High Court, in dismissing the application of the 33 assemblymen on Aug 17, had ruled that Mohd Shafie had acted within the Sabah Constitution in requesting Tun Juhar to dissolve the state assembly and said the proclamation to dissolve the state assembly was constitutional and valid.

In their application for leave for the 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 which would oust 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, including five nominated assemblymen.

Following the dissolution of the state assembly, the EC set Sept 12 for nomination and Sept 26 for polling in the 16th Sabah state election.