KOTA KINABALU: The High Court has set Nov 7 to decide on former chief minister Musa Aman’s lawsuit challenging Shafie Apdal’s appointment as the Sabah chief minister.
Kuching-based High Court judge Yew Jen Kie fixed the date after hearing oral submissions. This took four-and-half-hours.
Tengku Fuad Ahmad and S Vanagopal represented Musa who named Sabah governor Juhar Mahiruddin and Shafie as the first and second defendants.
Juhar was represented by state Attorney-General Zaleha Rose Pandin and Shafie by Douglas Lind.
Before the proceedings began, Yew told the lawyers that she decided to allow the oral submissions on Musa’s originating summons as this case was of public interest.
“If not, I would have just proceeded with the decision in chambers,” she said.
Musa’s counsel had earlier argued that the plaintiff had not lost the confidence of the majority of members of the state legislative assembly.
In his submission, Vanagopal contended Musa had never lost the confidence even up to the time of his “unconstitutional removal” by the Sabah governor on May 12, three days after the 14th general election (GE14).
He said while there was a shift in political allegiance by six Sabah Barisan Nasional members to Warisan, Musa continued to enjoy the support of a majority of the BN elected representatives.
Based on the 60-seat state election, no one party had actually won a simple majority of 31 seats, he said, adding BN garnered 29 seats compared with Warisan’s 21 while its Pakatan Harapan allies, DAP and PKR, managed six and two seats respectively.
The remaining seats belonged to Parti Solidariti Tanah Airku (STAR).
“BN, technically, won the election. The subsequent support of STAR merely bolstered BN’s majority in the assembly. STAR’s seats did not matter in the appointment of Musa (as the chief minister),” Vanagopal said.
“Even after the six BN assemblymen pledged their support for the Warisan president, Tan Sri Musa continued to enjoy the support of the 23 assemblymen of Sabah BN, which was still more than Warisan’s 21 seats,” he said.
He argued that, besides judging Warisan had the confidence of the majority of representatives in the assembly, Juhar made another grave error when he assumed the coalition of Warisan, with DAP, PKR and Upko, constituted a political party.
“Sabah BN is a registered political party and not a coalition of political parties. The fact that Sabah BN is a registered political party is not disputed by the defendants,” he said.
Tengku Fuad said Sabah BN contested under the “dacing” symbol while Warisan and its allies used their own respective emblems in the election.
Lind rebutted the argument, stating that Warisan had an understanding with its PH partners and that it was similar to BN.
“Warisan had 21 seats and Umno, Musa’s party, had 17 seats. In fact, Warisan won,” he contended.
“(But) this is not a question of being registered. We are dealing with numbers to control the government,” he said.
Zaleha also joined in the argument, saying they were talking about having the confidence of representatives in the assembly and not about political parties.
Tengku Fuad further argued that the 2009 Perak menteri besar case, which the counsel for the defendants had cited, should not be used in this particular case as it was of a different nature.
He said in Perak, the crucial turning point was when Nizar Jamaluddin admitted he had lost the confidence of the state assembly. He was replaced by BN’s Zambry Abd Kadir as menteri besar.
“Here in Sabah, there was never an admission of loss of confidence. There might be political shifting but no loss of confidence.
“Also, in Perak, the assembly had commenced for about a year. The three assemblymen had a whole year to decide who to support,” he said, adding that Musa was also not given the opportunity for his confidence in the assembly to be tested.
Tengku Fuad said a letter to inform Musa that he did not have the support in the assembly was also given to a “purported agent of Musa” on May 14 at a coffeeshop.
Adding to this, Vanagopal argued Juhar had overstepped his jurisdiction as governor when he considered Musa had lost the confidence of the assembly.
“The determination of the actual confidence in that person is a legislative function reserved for the assembly.
“The head of state had usurped the function of the assembly to decide on this confidence issue,” he said, citing Article 10(2) of the state constitution which states the governor may act in his discretion in the appointment of a chief minister and withholding of consent to request for dissolution of the state assembly.
Citing the state constitution, Zaleha disagreed with Musa’s lawyers on Juhar not having any authority to decide on the confidence issue, saying the governor had also spoken to the six BN assemblymen who informed him of their defection.
She said Musa, in accordance with Article 7(1) of the state constitution, should have resigned as chief minister when he no longer commanded the confidence of the majority in the assembly.
“Articles 6(3) and 7(1) are very clear,” she said. Article 6(3) of the state constitution states the head of state shall appoint a member of the state assembly who in his judgment is likely to command the confidence of the majority of the members of the assembly.
She said the first state assembly sitting last June 11 saw members of the House pledging full support to Shafie as the chief minister.
“We submit that the appointment of the second defendant (Shafie) was made according to the constitution,” she said.
Lind, in his submission, also maintained that Shafie had the confidence of the majority of the elected representatives in the assembly.
“Musa lost the majority on May 11; that is important. Based on interviews and statutory declarations (by the defecting BN reps), we found Musa had lost the majority and power shifted to Shafie,” he said.
He also contended that the dispute was academic as 44 state assemblymen had passed a vote of confidence in Shafie being the chief minister during the state assembly sitting on June 11.
“It is my opinion that the court will not question the assembly; the court should not intervene.
“There is no ‘live’ issue here. Even if your Ladyship rules in favour of the plaintiff, they will still have to go to the state assembly and table a motion of no confidence,” Lind said.