KOTA KINABALU, Nov 7 — The High Court here today struck out former Sabah chief minister Tan Sri Musa Aman’s suit to declare his dismissal as unconstitutional, allowing Datuk Seri Shafie Apdal to remain chief minister.
High Court Judge Yew Jen Kie said that Sabah Governor Tun Juhar Mahiruddin was within his discretionary powers to swear in Shafie as chief minister, when several assemblymen defected to support Shafie just two days after Musa was sworn in upon Barisan Nasional (BN) winning the state in the May 9 general election .
“For all the reasons I mentioned, I dismiss both originating summons,” she said.
She also awarded costs to Juhar and Shafie, amounting to RM45,000 to be divided equally between them.
In delivering her two-hour judgement, Justice Yew earlier said that there were two issues to be determined — whether Juhar was within his powers to decide the loss of majority, and whether the swearing-in of Shafie was void or unconstitutional.
She said she had to decide whether Musa had lost the support of the majority of assemblymen, and whether a vote of no confidence in a state assembly sitting was the only way to determine a loss of majority.
Another point was whether subsequently extraneous evidence could be used to determine loss of majority, and finally whether the chief minister’s refusal to resign was still deemed to be vacating the position.
In all considerations, she ruled in Shafie’s favour, having determined the statutory declarations by the six defecting BN assemblymen as sufficient extraneous evidence to prove a shift in majority for Shafie.
Citing the Perak constitutional crisis case in 2009, she said that although Sabah does not have a constitutional monarch, the case was still applicable in several instances such as to gather evidence from other reliable sources.
“I find that there were extraneous sources that could be relied on to determine the majority support, and the first defendant can reasonably rely on the six statutory declarations to determine the loss of majority,” she said.
Yew also said that the failure of the head of state to allow Musa to swear-in six nominated assemblymen on May 11 was of no merit in the argument as they were not to be taken into account when deciding the majority.
She also agreed with the defence, who used Article 7(1) of the Sabah Constitution, that once the sitting chief minister loses the majority, he is deemed to have vacated the office along with the Cabinet, despite not having resigned.
“It is clear that when the Cabinet was vacated, it paved the way for a new chief minister to be sworn-in,” she said, adding that it would otherwise lead to a “preposterous” situation of having two sitting chief ministers.
She contended that Juhar’s swearing in of Shafie on May 12 was within the Sabah Constitution.