By Chris Maskilone
KOTA KINABALU: Sungai Sibuga Assemblyman Tan Sri Musa Aman’s bid to overturn a High Court’s decision that struck out his suit challenging the legality of Parti Warisan Sabah (Warisan) President Datuk Seri Shafie Apdal’s appointment as Chief Minister of Sabah has been dismissed by the Court of Appeal here today.
A three-member bench comprising Justices Datuk Kamardin Hashim, Datuk Rhodzariah Bujang and Datuk Mohamad Zabidin Mohd Diah made the unanimous decision after deliberating on the Preliminary Objection (PO) filed by Shafie against Musa’s appeal, for nearly an hour.
“We find merit in the Preliminary Objection, that it is academic. The appeal is to be dismissed,” said Kamardin who made the announcement just before lunchtime.
The court also ordered the appellant to pay RM50,000 in cost to Shafie (second respondent) and RM20,000 to TYT Tun Juhar Mahiruddin who was named as the first respondent.
Consequently, a second appeal filed by Datuk Jahid Jahim challenging the legality of the present State Cabinet was also dismissed at no cost.
It came after the Appellate Court made the unanimous decision to admit a “new evidence” in the form of a letter from the State Legislative Assembly Secretary, which listed down the present 60 state assemblymen as well as their political allegiance into the court proceedings.
Shafie’s counsel Datuk Douglas Lind in his submission said the letter dated Oct 3, 2019, was a very important document.
“Should the court ruled on behalf of the appellant, this piece of new evidence will show that the appellant would not be able to get the support of the majority of the House members,” he said.
Lind’s application was supported by State Attorney-General Datuk Zaleha Rose Pandin on behalf of the first respondent.
However, Musa’s legal team comprising Tengku Fuad Tengku Ahmad and ad hoc counsel from Peninsular Malaysia Datuk Anantham Kasinather objected and argued that the case was not between Musa and Shafie but about Juhar’s action.
Anantham also argued that Lind only told them about it just two days ago.
After about 30 minutes of deliberation, Kamardin, Rhodzariah and Mohammad Zabidin emerged from the chambers and stated that they were of the view that the threshold has been met, so the letter would be accepted as evidence by the court.
With the letter secured as evidence, Lind moved forward to submit Shafie’s PO against Musa appeal saying that it was not ‘competent’ because it has now become academic and that the outcome of the appeal would have no effect at all on the positions or interests of either Musa or Shafie.
Based on the letter from the Secretary of the State Legislative Assembly of Sabah, Lind said there were only eight opposition members (including Musa himself, four PBS and three from Star).
It is therefore submitted that because of the wide differences in the support between the appellant and respondent it is obvious that even if the appellant is successful with his appeal, the outcome will remain merely academic as it will have no effect at all on either party.
Lind said that with the support of only eight of out of the total 60 elected assemblymen, Musa would not be able to satisfy the threshold of Article 6(3) of the Sabah Constitution and be eligible for appointment as the Chief Minister as he did not have command of the confidence of the majority of Assembly members.
“With the support of only eight assemblymen the appellant does not have the necessary numbers and be able to succeed to have a vote of no confidence passed against the second respondent.
“Hence even if he succeeds with the appeal the appellant will never be able to vote him (Shafie) out in the Legislative Assembly as Chief Minister,” he said.
It was also submitted that there would be no miscarriage of justice if the PO is allowed because Musa had ceased to command the confidence of the majority of members in the Legislative Assembly.
Article 7 (1) of the State Constitution prescribed that the appellant “shall” tender the resignation of the Cabinet including himself and that based on the Perak case, the word “shall”, meant it was mandatory for the appellant to tender the resignation of the Cabinet.
“It is also respectively submitted that the granting of this preliminary objection will put an end to all the political uncertainties created by this action and to allow the Warisan PH Government led by the second respondent to continue with its constitutional duty to administer and manage the state in the best interest of the people, which the second respondent and his political colleagues have been doing for the past 18 months,” he said.
Lind said that the subject matter of this dispute was no longer a live issue but has become academic and thereby making this appeal not competent to be heard.
In response, Anantham said the case at hand should not be referred to Perak case but to Ningkan case (Sarawak).
In Perak case, he said there was an admission on the part of the Menteri Besar that he had lost the confidence and requested for a dissolution of the Perak State Assembly whereas there was none in the appellant’s case.
At this juncture, Tengku Fuad stood up to submit that the question of law was whether the conduct of the Head of State was constitutional and that the matter on deciding whether Musa should no longer be chief minister should be left to the State Legislative Assembly.
Anantham then continued by arguing that the first respondent’s action in terminating Musa’s appointment as Chief Minister after swearing him in a few days earlier on May 12, 2018 was unconstitutional.
He said the action of the first respondent by summoning the appellant and asking him to resign was an issue that needed to be examined as it was outside of the Article 7 (1) of the State Constitution.
“So, I urge this court to reject the PO application … this issue is very much alive,” he said.
Meanwhile, S Vanugopal acting on behalf of Datuk Jahid Jahim also urged the court to dismiss the PO because he said there was no vote of no confidence passed in the State Legislative Assembly against Musa.
The State Attorney-General, on the other hand, supported the Preliminary Objection filed by Shafie and submitted that it was no longer a live issue since it has been overtaken by events.
Met by reporters outside the court later, Tengku Fuad said they were disappointed that the appeal was dismissed based on technicalities.
He said he had received instruction from his client to immediately pursue the case to the Federal Court.
Among those at the gallery were Minister of Youth and Sports, Phoong Jin Zhe, Assistant Minister of Trade and Industries Ben Chong as well as elected representatives from both sides.-SabahNewsToday