KUALA LUMPUR, March 26 ― Former Sabah chief minister Tan Sri Musa Aman today ended his lawsuit against Datuk Seri Mohd Shafie Apdal, officially ending a court tussle over who is the rightful Sabah chief minister following the May 2018 general elections.
This morning, Musa’s lawyer Datuk Firoz Hussein Ahmad Jamaluddin informed the Federal Court that his client is withdrawing his appeal against a previous dismissal of his lawsuit.
With the withdrawal of the appeal, the lawsuit has officially ended.
President of the Court of Appeal Tan Sri Rohana Yusuf, who was chairing a three-member panel at the Federal Court, then recorded the appeal as having been struck out.
The Federal Court today ordered RM60,000 in costs to be paid by Musa to Shafie over this lawsuit. This amount was sought by Shafie’s lawyers as costs for work done so far for this lawsuit.
Following the May 9, 2018 elections, Musa was initially sworn in on May 10 as Sabah’s chief minister with a razor thin majority, but six state assemblymen from his Barisan Nasional coalition signed statutory declarations to back Shafie as the chief minister instead.
These statutory declarations, which were handed over to the Sabah governor Tun Juhar Mahiruddin on May 11, meant Shafie had gained majority support.
On May 12, the Sabah governor in the morning asked Musa to resign but the latter did not resign, while Shafie was later sworn in by the state governor at night the same day.
Musa then filed his lawsuit in 2018 via originating summons in the High Court against Juhar and Shafie, seeking for court orders including a declaration that he is the rightful chief minister of Sabah and that the Sabah governor’s appointment of Shafie was null and void.
In November 2018, the High Court dismissed Musa’s lawsuit, ruling that Musa had lost the confidence of the majority of Sabah’s state legislative assembly when the six BN lawmakers defected to Shafie’s side, and also ruling that the appointment of Shafie as Sabah chief minister was lawful.
Later in November 2019, the Court of Appeal dismissed Musa’s appeal on the lawsuit without hearing its merits, as it agreed with Shafie’s preliminary objection that the matter had become academic.
The Federal Court however on August 26, 2020 had in a 2-1 decision granted Musa leave to appeal, meaning that the highest court in the country would hear Musa’s appeal in his lawsuit against the Sabah governor and Shafie. The granting of leave was before Sabah’s state elections in September 2020.
The Federal Court’s granting of leave to appeal also applied to a separate lawsuit that was heard together with Musa’s case, with the separate case having been filed by Sabah’s Tamparuli state assemblyman Datuk Jahid@Noordin Jahim.
Jahid had filed his lawsuit to challenge the constitutionality of Shafie’s appointment as chief minister and to challenge his own dismissal as Sabah’s state minister of local government and housing in Musa’s state Cabinet.
Jahid’s lawsuit was filed against three respondents ― Datuk Seri Syed Abas Syed Ali who was Sabah’s state Speaker from August 2015 to August 2020, Datuk Bernard J. Dalinting who was Sabah’s state assembly secretary from February 2005 to January 2019, and Shafie.
Jahid had previously also failed at the High Court and Court of Appeal for the same reasons as Musa’s case which was heard together, before his case came before the Federal Court.
Costs or no costs?
Today, Firoz Hussein who represents both Musa and Jahid said both clients wished to withdraw their appeals at the Federal Court, adding that the Sabah government had kindly agreed to a proposal for the court matter to be withdrawn with no order as to costs.
Firoz Hussein also applied for the Federal Court to also not make any order for costs to be paid by Musa and Jahid to Shafie, arguing that this was due to the cases being a “public interest matter”.
“In a sense, My Lady and My Lords, this is a case where time and circumstances have overtaken the need to proceed with this appeal. At the material time when the proceedings were first instituted, the issues were extremely important and they still are, to a certain extent,” he said, adding that it would perhaps be more appropriate now amid the Covid-19 pandemic to “focus on the harmony and economy of the state and to support in every way the new government that has been established” after the September 2020 Sabah state elections.
“In view of all these events, and in view of the fact that the Federal Court in its judgment granting leave recognised how important these constitutional issues were to the people of Sabah, this is clearly within the realm and domain of public interest,” he said.
“My Lady and My Lords, this is clearly a case which is not a personal fight between two individuals, this is a case which the Federal Court has very clearly characterised as a case involving public interest and a case involving constitutional matters,” he later argued.
Musa’s and Jahid’s lawyer Tengku Ahmad Fuad Tengku Ahmad Burhanuddin said the Federal Court was informed about a week ago of his clients’ intentions to withdraw the appeals, and that Shafie’s lawyers did not agree to his clients’ proposal for no costs to be granted.
Shafie’s lawyer Datuk Cyrus Das said the written proposal by Musa and Jahid to withdraw the appeal without costs was received on March 17, but said such a proposal “comes rather late in the day” as this was after the Federal Court had already fixed dates for when parties in the case are to file in their written submissions for the appeal.
“Those times and changes have been there since September 2020. Leave was granted in August 2020, and these changes, namely the elections and change of government with new Cabinet and new chief minister was in September 2020, so those circumstances my learned friend mentioned have been there for some time, almost five, six months, now only this decision being made to withdraw the appeal,” he said.
While acknowledging that the Federal Court had in granting leave for appeal highlighted this case as a constitutional matter, Das said the Federal Court had however also identified this as essentially a “tussle” between Musa and Shafie, noting: “So that is the background to this constitutional dispute over the right to hold the office of chief minister … So I think one can’t run away from the fact that the constitutional issues arise in the tussle for office.”
Shafie’s lawyer Datuk Douglas T. Lind highlighted that both Musa’s and Jahid’s lawsuits are personal in nature, also noting that their lawyers had never indicated any intention to withdraw the appeal in the past seven case managements for the case.
Lind said it would be unfair if Shafie was not to be granted costs, as Shafie’s lawyers had already carried out substantive work by preparing the written submissions for the appeal and filed the submissions to the court on February 24.
He also said that Musa’s and Jahid’s lawyers had failed to file in submissions by the February 26 date set, and that their appeal would have been deemed to be struck off under the courts’ practice directions due to failure to file submissions according to the timeline set.
Lind then proposed RM60,000 in costs to be paid by Musa and RM20,000 in costs to be paid by Jahid, which he considered to be a “fair” and “reasonable” sum.
Lind had also argued that Musa and Jahid should not withdraw the case if it was of a public interest nature, arguing that it was obvious that the action of withdrawing the appeal showed that it was personal in nature.
Having heard all the parties, Tan Sri Rohana then said the Federal Court is ordering for Musa’s appeal and Jahid’s appeal to be “struck out”, with no costs to the Sabah state attorney-general’s department as agreed, and with costs of RM60,000 to be paid by Musa to Shafie and costs of RM20,000 to be paid by Jahid to Shafie.
Representing Sabah governor Juhar, Syed Abas and Bernard today are Datuk Brenndon Keith Soh and Chee Chun Yen from the Sabah state attorney general’s department, while lawyer Chu Xiao Wei along with Das and Lind represented Shafie.
