Written request by Shafie valid, court rules

KOTA KINABALU: A written request made by caretaker Chief Minister Datuk Seri Mohd Shafie Apdal to the Head of State (TYT) was valid to cause TYT to exercise his constitutional power to dissolve the 15th Sabah Legislative Assembly on July 30, the High Court here ruled.

In his reserved 44-page ruling, Judicial Commissioner Leonard David Shim said the issue for this court was to determine whether the written request by Shafie on the said date was valid and effective to invoke the constitutional power of dissolution of the assembly.

“So, if it was valid under the Sabah Constitution, the question was whether the dissolution by TYT was non justiciable by the court.

“Before considering the issue of justiciability the court considered and found that the 33 applicants have locus standi or standing to bring this action for judicial review.

“After considering the evidence and the law, the court found that the written request for advice by Shafie to TYT was a request for dissolution,” the judge held.

Former Sabah chief minister Tan Sri Musa Aman and 32 other assemblymen had contended that the written request made by Shafie on July 29 to request the TYT for consent to dissolve the assembly was invalid and incapable of causing the TYT to dissolve the assembly.

The court also held that the words “request” or “advice” are not expressly in the Sabah Constitution and from the plain and reading of the contents of the written request from Shafie with the subject of “Membubarkan Dewan Undangan Negeri Sabah” showed that words used were unambiguous.

“Further, the said written request also contains words of advice by Shafie to TYT on the political situation and instability in the State of Sabah at the material time and the appropriateness to return the people’s mandate to the people of Sabah to elect a new government.

Although the applicants disputed the reference in the written request in Article 10(1)(2)(b) of the Sabah Constitution on the grounds that the said Article is mishmash and non-existent, the court found that the mistaken reference to Article 10(1)(2)(b) was not fatal and the court can look at substance of the written request rather than form,” said the judge.

The court also said that there was no statutory form or official format of a request or advice for a dissolution of Legislative Assembly described and provided under the State Constitution or other written law applicable to Sabah.

“The absence of common request form, the court will look into the substance or written request rather than the form,” the court said.

The court further held that if the legislature intended that request or advice for a dissolution must be in the particular form and must quote the correct Article and provision of court or the State Legislature must make statutory form for such purpose, it will be unreasonable to expect all advice by Shafie to TYT must be revealed and quote in correct provision of the Sabah Constitution.

“There are circumstances such as public security or political situation that may be confidential or insurgency of the situation,” said the court.

The court further ruled that in his view Article 10(4) of the Sabah Constitution did not diminish the prerogative power or absolute discretion of TYT to withhold or not to withhold consent for a dissolution of Legislative Assembly.

“But to reinforce consent, therefore even if no Article or no provision was cited in the written request or dissolution, the court will look into substance fact rather than form to determine the nature and legal effect of the request,” the court said.

“In the circumstances the written request or advice is valid and effective to cause TYT to exercise his constitutional power to dissolve the assembly.

“After considering the evidence and law the court found that Shafie had acted within his constitutional right or power to request or advice TYT to dissolve the assembly and TYT had acted within the ambit of his constitutional power to dissolve the assembly,” the court held.

Further, the TYT has absolute discretion under Article 10(2)(b) read with Article 7(1) and Article 21(2), all of the Sabah Constitution to consent or withhold consent to dissolve the assembly.

“The decided cases clearly showed that the dissolution of the assembly by TYT is non justiciable.

“In the premises, the dissolution and the said proclamation dated July 30 is constitutional and valid, the issue of how and what did TYT considered or why he did or did not consult other persons when exercising his discretion to dissolve the assembly is not suitable or amenable to judicial review,” ruled the court.

Based on the aforesaid reasons, the court found that the dissolution and proclamation were not amenable to judicial review and were non justiciable.

“In the light of the findings hereinabove and based on the aforesaid reasons and authorities, leave to apply for judicial review is refused, as the putative respondents are not pressing for costs and this case not only involves the applicants but also concerns a matter of public interest and importance, the court makes no order as to costs,” added the court.

Apart from that, the court also made finding on justiciability which the court among others ruled that even if Shafie has lost confidence of majority of members of Sabah Legislative Assembly on July 29, Shafie could still request and/or advice TYT for dissolution of the assembly.

“Only if the request for dissolution refused by TYT, would Shafie have to tender a resignation of the members of the cabinet,” said the court.

On August 4, Musa and the other assemblymen aligned with him had filed their ex-parte application naming the Head of State Tun Juhar Mahiruddin, Shafie, the Election Commission and the State Government as their first, second, third and fourth respondents respectively.

In the notice of application, apart from Musa, the assemblymen involved are Datuk Bolkiah Ismail, Julita Mojungki Ismail, Datuk Lasiah Baranting @ Anita, Datuk Haji Musbah Haji Jamli, Datuk Japlin Akim @ Abd Hamid, Datuk Jahid @ Noordin Jahim, Datuk Seri Panglima Haji Hajiji Haji Noor, Datuk Joniston Lumai @ Bangkuai, Kenny Chua Teck Ho, Datuk Gulamhaidar @ Yusof Khan Bahadar, Datuk Mohd Arifin Mohd Arif, Datuk Isnin Haji Aliasnih @ Liasnih, Datuk Limus Jury, Matbali Musah, Datuk Dr Joachim Gunsalam, Datuk Seri Panglima Haji Masidi Manjun, Datuk Abidin Madingkir, Datuk Dr Gapari Katingan @ Geoffrey Kitingan, Robert Tawik @ Nordin, Jamawi Jaafar, Datuk Ellron Angin, Bobbey Ahfang Suan, Datuk James Ratib, Abdul Rahman Kongkawang, Datuk Masiung Banah, Datuk Saddi Abdul Rahman, Datuk Osman Jamal, Datuk Nizam Datuk Abu Bakar Titingan, Datuk Hamisa Samat, Datuk Abd Muis Haji Picho, Jaffari Waliam and Loh Ee Eng.

All of them also sought a declaration that:

1) Shafie’s position as Chief Minister was vacated pursuant to Article 7(1) of the Sabah Constitution following his written request dated July 29 to the Head of State for the dissolution of the said State Legislative Assembly purportedly pursuant to Article 10(1)(2)(b) (as incorrectly cited by Shafie) of the same;

2) that Shafie’s position as Chief Minister was deemed to have been vacated pursuant to Article 7(1) of the Sabah Constitution as soon as the Head of State was given notice that Shafie had lost the confidence of the majority of the members of the said State Legislative Assembly which occurred on July 29;

3) the vacation of Shafie’s position as Chief Minister, the Head of State was under a duty to exercise his discretion as to whether to withhold consent to the request for dissolution or appoint a member of the said Sabah State Legislative Assembly pursuant to Article 6(3) of the Sabah Constitution who in his judgement is likely to command the confidence of a majority of the members of the said Sabah State Legislative Assembly;

4) that the Head of State allegedly breached his constitutional duty by allegedly failing to exercise his discretion, as provided under Article 10(2) of the Sabah Constitution, to consider whether to appoint a member of the said Sabah State Legislative Assembly pursuant to Article 6(3) of the Sabah Constitution who in his judgement is likely to command the confidence of a majority of the members of the said Sabah State Legislative Assembly;

5) that the proclamation allegedly by the Head of State dated July 30 for the dissolution of the said Sabah State Legislative Assembly purportedly under Article 21(2) of the Sabah Constitution (“the Proclamation”) and the purported dissolution of the said Sabah State Legislative Assembly was ultra vires the Sabah Constitution and void ab initio.

Apart from that, the applicants also sought orders of Certiorari namely quashing Shafie’s written request to the Head of State on July 29 with immediate effect; quashing the said proclamation with immediate effect, quashing the Sabah State Government Gazette dated July 30 and costs.

Counsels Tengku Fuad Tengku Ahmad, S. Vanugopal, Wilsong Chang Khai Sim and Alice Lim represented the applicants while Senior Federal Counsel Suzana Atan and Narkunavathy acted for Federal Attorney-General and Brenndon Keith Soh, Dygku Fazidah Hatun Pg Bagul and Chung Jiun Dau acted for State Attorney-General.

Some of the applicants were seen present in court.

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