Federal Court grants Musa Aman leave to challenge appellate court’s dismissal of Sabah CM dispute from 2018

Tan Sri Musa Aman seen at the Palace of Justice August 26, 2020. — Picture by Emmanuel Santa Maria Chin
Tan Sri Musa Aman seen at the Palace of Justice August 26, 2020. — Picture by Emmanuel Santa Maria Chin

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PUTRAJAYA, Aug 26 — The Federal Court in a split vote today has granted Tan Sri Musa Aman the leave to appeal against a previous dismissal by the Court of Appeal, over his 2018 suit seeking to be named the rightful Sabah chief minister.

The decision was delivered by the three-judge bench, who voted two to one in favour of Musa.

Federal Court Judges Datuk Abdul Rahman Sebli and Datuk Zabariah Mohd Yusof voted in favour of Musa on the grounds that the appeal had fulfilled all the required thresholds to obtain a leave.

“Questions of the law are of great constitutional effect and have far reaching implications, and must be resolved by this court to give certainty of the law and must not be left hanging.

“The people of Sabah have a right to know whether the removal of Tan Sri Musa was lawfully done and in accordance with the state constitution.

“For this reason, Justice Sabariah and I allow for this application,” said Abdul Rahman.

Bench chairman Datuk Seri Mohd Zawawi Salleh voted against Musa, saying he thinks that the former chief minister’s application had failed to meet the requirements needed to grant a leave.

“I am of the opinion that the application had failed to satisfy the requirements under Section 96 of the Courts Judicature Act, and in my opinion the grounds of the applications are unsustainable.

“It will be a fruitless exercise with no practical effect,” added Mohd Zawawi.

He also said that in his view, the matter is academic since the Sabah assembly was already dissolved, and the Election Commission had announced nomination day and polling day to take place on September 12 and September 26 respectively.

When met outside the courtroom, the elated Musa expressed thanks to the Almighty.

“I am thankful to Allah for the court decision,” said Musa, adding how a detailed statement will be issued by him soon.

“Like I said before this case is not about me. It is about the fight for the truth, justice and upholding the Sabah Constitution,” he added in a later statement.

The original suit was filed by Musa and former Tamparuli assemblyman Datuk Jahid @ Noordin Jahim, seeking to nullify the appointment of Datuk Seri Mohd Shafie Apdal as Sabah chief minister back in 2018 by state Yang Dipertua Negri Tun Juhar Mahiruddin.

Musa was represented by Tengku Ahmad Fuad, while Datuk Firoz Hussein Ahmad Jamaluddin and Wilson Chang represented Jahid.

Shafie was represented by Sabah Attorney-General Brenndon Keith Soh with Datuk Douglas Lind, the counsel for Juhar.

Earlier during proceedings, Firoz argued that the High Court had erred when it deemed the removal of Musa and appointment of Shafie as unlawful.

According to Firoz, there is a difference in the constitutional powers held by a sultan and a state governor.

He claimed the case cited as precedent used to strike out the initial application, which was the 2009 Perak crisis between then Perak Mentri Besar Datuk Seri Mohd Nizar Jamaluddin vs Datuk Seri Zambry Abdul Kadir, does not bear the same weight in Musa’s application.

“The issue is whether or not the TYT has discretion to deal with these issues, when the Sabah Constitution is different; there is a limit in discretion.

“It is limited, and if we refer to Article 10.2 (a)(b) (of the Sabah Constitution), the only discretion is appointment, consent to dissolution, not dismissal.

“He has no power to dismiss. This is within the Sabah Constitution, it is not like Perak, there are reserved powers in the Royals, in Sabah it is different,” Firoz argued.

Lind and Soh countered by saying Musa’s application had become academic as it had been overtaken by current developments and should be dismissed.

Soh went on to say that such an application could be seen as a waste of the court resources. 

Lind pointed out that the Court of Appeal had already dismissed the application, and that the originating summons abasing Shafie and Juhar before today’s leave application was also thrown out.

“The fact is we cannot run away from the fact that the Court of Appeal decided to dismiss it purely because it was academic.

“Musa cannot satisfy the requirements, that is my view,” he said.

On November 7 last year, the High Court dismissed the suit filed by Musa against Shafie when it ruled that the latter was the lawful chief minister and that his appointment is constitutional.

Last November 28, the Court of Appeal struck out Musa’s appeal against the High Court’s decision, before the Federal Court granted leave today.

 

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