KK High Court dismisses Musa’s application for judicial review to dissolve Sabah state assembly

KOTA KINABALU (Aug 21): The High Court here today dismissed a leave for judicial review filed by former Sabah Chief Minister Tan Sri Musa Aman and 32 assemblymen questioning whether the Head of State had correctly exercised his discretion power in dissolving the 15th Sabah Legislative Assembly on July 30.

Judicial Commissioner Leonard David Shim refused the leave for the applicants among others held that the dissolution and proclamation not amenable for judicial review and non-justiciable.

On Aug 4, Musa and the other assemblymen aligned with him had filed their ex-parte application naming the Head of State Tun Juhar Mahiruddin, Shafie, the Election Commission and the State Government as their first, second, third and fourth respondents respectively.

In the notice of application, apart from Musa, the assemblymen involved are Datuk Bolkiah Ismail, Julita Mojungki Ismail, Datuk Lasiah Baranting Anita, Datuk Haji Musbah Haji Jamli, Datuk Japlin Akim Abd Hamid, Datuk Jahid Noordin Jahim, Datuk Seri Panglima Haji Hajiji Haji Noor, Datuk Joniston Lumai Bangkuai, Kenny Chua Teck Ho, Datuk Gulamhaidar Yusof Khan Bahadar, Datuk Mohd Arifin Mohd Arif, Datuk Isnin Aliasnih Liasnih, Datuk Limus Jury, Matbali Musah, Datuk Dr Joachim Gunsalam, Datuk Seri Panglima Haji Masidi Manjun, Datuk Abidin Madingkir, Datuk Dr Gapari Katingan Geoffrey Kitingan, Robert Tawik Nordin, Jamawi Jaafar, Datuk Ellron Angin, Bobbey Ahfang Suan, Datuk James Ratib, Abdul Rahman Kongkawang, Datuk Masiung Banah, Datuk Saddi Abdul Rahman, Datuk Osman Jamal, Datuk Nizam Datuk Abu Bakar Titingan, Datuk Hamisa Samat, Datuk Abd Muis Picho, Jaffari Waliam and Loh Ee Eng.

All of them also sought a declaration that:

1) Shafie’s position as Chief Minister was vacated pursuant to Article 7(1) of the Sabah Constitution following his written request dated July 29 to the Head of State for the dissolution of the said State Legislative Assembly purportedly pursuant to Article 10(1)(2)(b) (as incorrectly cited by Shafie) of the same;

2) that Shafie’s position as Chief Minister was deemed to have been vacated pursuant to Article 7(1) of the Sabah Constitution as soon as the Head of State was given notice that Shafie had lost the confidence of the majority of the members of the said State Legislative Assembly which occurred on July 29;

3) the vacation of Shafie’s position as Chief Minister, the Head of State, was under a duty to exercise his discretion as to whether to withhold consent to the request for dissolution or appoint a member of the said Sabah State Legislative Assembly pursuant to Article 6(3) of the Sabah Constitution who in his judgement is likely to command the confidence of a majority of the members of the said Sabah State Legislative Assembly;

4) that the Head of State allegedly breached his constitutional duty by allegedly failing to exercise his discretion, as provided under Article 10(2) of the Sabah Constitution, to consider whether to appoint a member of the said Sabah State Legislative Assembly pursuant to Article 6(3) of the Sabah Constitution who in his judgement is likely to command the confidence of a majority of the members of the said Sabah State Legislative Assembly;

5) that the proclamation allegedly by the Head of State dated July 30 for the dissolution of the said Sabah State Legislative Assembly purportedly under Article 21(2) of the Sabah Constitution (“the Proclamation”) and the purported dissolution of the said Sabah State Legislative Assembly was ultra vires the Sabah Constitution and void ab initio.

Apart from that, the applicants also sought orders of Certiorari namely quashing Shafie’s written request to the Head of State on July 29 with immediate effect; quashing the said proclamation with immediate effect, quashing the Sabah State Government Gazette dated July 30 and costs.

The court also ordered for no order as to costs.

The Election Commission (EC) has set Sept 26 for the state election. Nomination is on Sept 12.