KOTA KINABALU: The High Court judge who threw out Musa Aman’s bid to challenge the legality of Shafie Apdal’s appointment as the Sabah chief minister has cited a 2009 case which returned Barisan Nasional (BN) to power in Perak following a controversial Federal Court judgment.
Judge Yew Jen Kie said the Federal Court in Putrajaya had laid down the legal principles that there was no mandatory requirement for a motion of no confidence against a chief minister, before he could be considered as having lost the confidence of the majority of assemblymen.
“Despite the distinguishing facts and circumstances of the Perak case and that Perak is a constitutional monarchy, the legal principles enunciated by the Federal Court is applicable to the present dispute as both cases involved the same issue,” Yew said when explaining her decision to throw out Musa’s bid to declare Shafie’s appointment as unconstitutional.
The Kota Kinabalu High Court today struck out the former Sabah Umno chief’s originating summons seeking a declaration that the swearing-in of Shafie as chief minister by governor Juhar Mahiruddin was unconstitutional.
Musa, who had named Juhar and Shafie as defendants, was initially sworn in as chief minister in a delayed ceremony a day after the May 9 elections, but defections by BN assemblymen tipped the state assembly majority in favour of the Warisan-Pakatan Harapan coalition.
Juhar later swore Shafie in as chief minister, but Musa refused to resign, saying Shafie’s appointment was unconstitutional.
Yew said Juhar was acting within his powers when he swore in Shafie less than 48 hours after he swore in Musa, whose BN coalition in Sabah had won a simple majority before the defections.
She said Juhar did not need to wait for a motion of no-confidence to be tabled against Musa in the state assembly to determine whether the former chief minister had lost the confidence of most of the state assemblymen.
She added that statutory declarations by six BN assemblymen who defected were sufficient to show Musa had lost support from most assemblymen.
“I find that there were extraneous sources that could be relied on to determine the majority support, and the first defendant (Juhar) can reasonably rely on the six statuory declarations to determine the loss of majority,” she said, adding that the declarations proved a shift of allegiance and majority from Musa’s camp to Shafie’s.
In her judgment, Yew said there were two main issues to be determined – whether Juhar was within his powers to determine the loss of majority and whether Shafie’s swearing-in was unconstitutional.
She said the court also had to take into account whether a vote of no confidence in a state assembly was the only way to determine that a chief minister had lost majority support, whether other evidences could be used, or whether the chief minister’s refusal to resign was deemed to be vacating the position.
Yew also agreed with the Sabah governor’s submission that once the chief minister loses the majority, he is deemed to have vacated the office along with his state cabinet, based on Article 7(1) of the Sabah constitution.
“It is clear that when the Cabinet was vacated, it paved the way for a new chief minister to be sworn in,” she said, adding that it would otherwise lead to a “preposterous” situation of having two sitting chief ministers.