Musa vs Shafie: Decision Nov 7

KOTA KINABALU: High Court Judge Datuk Yew Jen Kie yesterday fixed Nov 7 to deliver her decision on a civil suit filed by Sungai Sibuga assemblyman Tan Sri Musa Aman in challenging the legitimacy of Parti Warisan Sabah president Datuk Seri Mohd Shafie Apdal’s appointment as Sabah Chief Minister.

Musa was also seeking a declaration that he is the rightful Chief Minister of Sabah.

The Kuching-based High Court judge set the date to deliver decision upon hearing oral arguments submitted by lawyers  representing Mohd Shafie and Musa, in an open court proceedings from 2.30pm to 6.42pm yesterday,

Members of the media, lawyers and the public who entered the courtroom were not allowed to bring any gadgets in.

Counsel S. Vanugopal, who represented Musa, touched on an issue raised in their originating summons (OS) which was whether Musa had anytime lost the confidence of the majority of the members of the Legislative Assembly.

Vanugopal submitted that it should be a grave constitutional error to assign to the words “majority of the members of the Assembly” that constrained the meaning of absolute majority, for example, the support of at least 31 members of the 60-member Assembly when that was not the intention of Article 6 (3) of the State Constitution of Sabah.

The said Article provides for the Yang di-Pertua Negeri (TYT) to appoint as Chief Minister a member of the Legislative Assembly who in his judgement is likely to command the confidence of a majority of the members of the Assembly and shall appoint the other members with the advice of the CM from among the members of the assembly.

Vanugopal said that if that was the intention of the Legislature that would have so provided, he submitted that in the absence of a constitutional definition, the word majority must be given its ordinary meaning, for example, the most or the largest number.

The counsel further submitted that in a situation, as in the election on May 9 (14th General Election) where numerous political parties had contested, unless the word majority in Article 6 (3) is given the meaning of “the most”, an impasse may well result if no single political party had won 31 seats.

He explained that BN-Sabah won 29 seats, Parti Warisan Sabah won 21 seats, DAP won six seats, while PKR and STAR won two seats each whereby BN-Sabah technically won the majority or most of the seats in the Assembly and in accordance with Article 6 (7) of the State Constitution, which states that the leader of a political party is entitled to be appointed as the CM.

Vanugopal said that BN-Sabah already had 29 seats and two additional seats from STAR while in the same vein, six assemblymen subsequently pledging their support for Warisan president Mohd Shafie, Musa continued to enjoy the support of the remaining 23 assemblymen of BN-Sabah which was still more than the 21 seats secured by Warisan.

He said that for purpose of Article 6 (7), a political party is deemed to be a registered political party and not a coalition of political parties and the Head of State had made another grave error when he assumed that the coalition of Warisan with DAP, PKR and UPKO constituted a political party.

Meanwhile, Tengku Fuad Tengku Ahmad, who also represented Musa, emphasised in his submission on the distinguished Perak case between Datuk Seri Ir Mohamad Nizar Jamaluddin and Datuk Seri Dr Zambry Abdul Kadir and the present Sabah case, said that Musa never asked for dissolution and the TYT has no power in light of Article 10 (4) of the State Constitution to require Musa to resign or to treat Musa as if he has resigned.

Tengku Fuad explained that in the Perak case, they admitted they had lost the confidence of the majority and they had in fact, admitted it because the Perak Menteri Besar had asked for a  dissolution.

Whereby here, Tengku Fuad explained that Musa never asked for a dissolution and in fact, Musa was eager at all times to test the confidence of the Assembly on the floor.

Tengku Fuad further argued that accordingly, the TYT has no power under Article 6(3) to swear in Mohd Shafie as the second CM.

In reply, Senator Datuk Douglas Lind, who acted for Mohd Shafie, argued that the legal principles established by the Perak case were clearly applicable to the Sabah case as the Perak case was also in respect of the disputed appointment of the Perak Menteri Besar which is identical to Article 7 (1) of the Sabah State Constitution.

Douglas also submitted that on May 11, six of the duly elected BN-Sabah assemblymen had switched over their support and alligiance to Mohd Shafie and accordingly, Musa had therefore ceased to command the confidence of the majority of members of the State Legislative.

Douglas explained that Musa’s support was reduced from 31 to 25 of the duly elected assemblymen and Mohd Shafie, on the other hand, had increased the number of duly elected assemblymen from 29 to 35.

Meanwhile, State Counsel Datuk Zaleha Rose Pandin for the TYT argued that Article 7(1) of the Sabah Constitution states that, “If the CM ceases to command the confidence of a majority of the members of the Legislative Assembly, then, unless at his request the TYT dissolves the Assembly, the CM shall tender the resignation of the members of the Cabinet”.

She submitted that Musa did not tender any resignation, however, if based on the Perak case, Musa had lost the support of the majority. Therefore, it was mandatory for Musa to tender the resignation of the Cabinet by Article 7(1) and further, Musa and members of the Cabinet were also deemed to have vacated their respective offices.

On Aug 24, the judge had initially fixed Oct 26 for the decision of the OS after dismissing Mohd Shafie’s application to strike out the OS, ruling that Musa had raised question of law in his OS.

However, it went viral on social media on Oct 22 that the decision of the OS had been rescheduled earlier then it was supposed to be and on the next day, the court clarified that it was not for decision but for oral arguments.

On June 28, Mohd Shafie had filed a striking-out application against Musa’s OS through Messrs Lind Willie Wong.

In the application, Mohd Shafie applied for Musa’s OS against him to be dismissed on the grounds that the OS allegedly discloses no reasonable cause of action, is scandalous, frivolous, vexatious and an abuse of process of the Court.

Musa, 67, had filed the OS on June 6 via e-filling through Messrs F. T. Ahmad & Co, naming the TYT and Mohd Shafie as the first and second defendants, respectively.

In his OS, Musa sought declarations that:

a) he is and remains lawful Chief Minister (CM) of Sabah

b) there was no revocation, removal or dismissal of his appointment as CM

c) TYT’s act or acts subsequent to his appointment as CM with respect to the appointment of Mohd Shafie as CM are allegedly ultra vires the State Constitution, null and void and of no effect

d) TYT allegedly acted unconstitutionally in appointing Mohd Shafie’s State Cabinet

e) TYT’s alleged failure, neglect and/or refusal of appointing his six nominated assemblymen as advised by him, was contrary to the State Constitution

f) all acts and things done by Mohd Shafie and his cabinet after Mohd Shafie’s appointment as CM were allegedly null, void and of no effect

Apart from that, Musa is also seeking in:

g) damages against TYT and Mohd Shafie to be assessed

h) discretionary interest of five per cent per annum persuant to Section 11 of the Civil Law Act 1956 on the judgement sum from the filing of the summons until the date of judgement and statutory interest of five per cent per annum from the date of judgement untill the date of full realisation

i) costs and such further or other reliefs that the court deems fit and proper to grant.

On July 10, the same court ordered Musa to pay RM5,000 costs for discontinuing his writ of summons against Mohd Shafie last month as he had filed a new action by way of OS.

The judge made the order on Musa, who withdrew his writ against Mohd Shafie on June 6, and which led Musa to file his OS through the same legal firm on the same day.

The writ, which was filed by Musa on May 17, among others, sought a declaration that he is the rightful Sabah Chief Minister and Musa had named TYT and Mohd Shafie as the first and second defendants respectively.

Also present at court were deputy chief ministers Datuk Jaujan Sambakong and Datuk Christina Liew, Infrastructure  Development Minister Datuk Peter Anthony; People’s Health and Well-being Minister Datuk Stephen Wong; Warisan secretary-general Loretto Padua Sipin Jr, Inanam assemblyman Kenny Chua, legal practitioners, other leaders and watching brief counsel for Sabah Law Society Brenndon Keith Soh and Roger Chin.