Decision on whether courts may review Sabah dissolution to be made Friday

Sabah Chief Minister Datuk Seri Mohd Shafie Apdal is pictured at the Sabah State Administrative Centre in Kota Kinabalu July 30, 2020. ― Bernama pic
Sabah Chief Minister Datuk Seri Mohd Shafie Apdal is pictured at the Sabah State Administrative Centre in Kota Kinabalu July 30, 2020. ― Bernama pic

KOTA KINABALU, Aug 17 — The High Court will rule this Friday whether the judiciary was authorised to review the Yang di-Pertua of Sabah’s consent for the dissolution of the state assembly.

After taking more than four hours to hear the oral submission from lawyers and senior federal counsel, Judicial Commissioner Leonard David Shim set the date for the decision for August 21.

The matter at hand was the bid for judicial review of Tuan Yang Terutama Tun Juhar Mahiruddin’s decision by former Sabah chief minister Tan Sri Musa Aman and 32 other state assemblymen.

 Sabah Attorney General Brenndon Keith Soh, who represented the state government, said they are maintaining that the decision made by Juhar was valid under the condition and that there were no restrictions for the Election Commission to continue with election preparations.

“There was no restriction made for the Election Commission to continue its constitutional duty to carry out the democratic process and prepare for elections. No order was made,” he said.

The Election Commission is scheduled to announce the dates of the state polls at 4pm this afternoon.

During the hearing earlier, counsel for applicant Tan Sri Musa Aman, Tengku Fuad Ahmad said: “We were asked to file submissions on the matter of justiciability but during the oral submission today, the State AG made submissions on why the 33 state assemblymen had no locus standi to question the TYT’s decision, which is wrong,” he said.

He asked for time to make a written submission but was asked to submit his argument on Wednesday.

In his submission, Fuad said that his clients had decided to file the suit when the letter of application for the dissolution by chief minister Datuk Seri Shafie Apdal that was signed by Juhar was made public to Twitter.

“After examining the letter, we found that the article cited in the letter does not exist in the constitution but it could be a typo.

“The letter cited the State Constitution Article 10(1)(2)(b) but it perhaps should be 10 (1) and 10 (2)(b),” he said.

Fuad also said that it is only in the Sabah Constitution that says the Head of State has the discretionary power but not the prerogative power.

“We are the only state where our constitution states our TYT has the discretionary power,” he said.

Soh, in his argument, said that the TYT had made a lawful decision when he acted on Datuk Seri  Shafie Apdal’s advice to dissolve the state assembly.

“At the time the Chief Minister issued the letter there was no admissible evidence of reason that the TYT would doubt that the second respondent had lost the majority,” he said, adding that the proclamation to dissolve was a constitutional duty of the TYT.

“We are maintaining that this is a non-justiciable decision and not suitable for the judiciary to question the prerogative of the TYT to dissolve the state assembly,” he said.

He said that Malaysia subscribes to a clear separation of executive, legislative and judiciary powers that do not encroach into each other’s domain.

Musa and 32 other state assemblymen have applied for leave for judicial review, maintaining that the TYT was not properly advised to dissolve the state assembly and is seeking to stop the state polls which have to be called within 60 days of dissolution.

The suit comes after Juhar dissolved the assembly on July 30 at caretaker chief minister Shafie’s advice in a preemptive move to prevent a toppling by Musa after some 13 assemblymen defected to support Musa.

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