Decision on Sabah assemblymen’s review application this Friday

Tengku Fuad Ahmad (front row, left) and the assemblymen at the Kota Kinabalu High Court today.

KOTA KINABALU: The High Court here will rule this Friday whether to allow a judicial review application by 33 assemblymen against Sabah Governor Juhar Mahiruddin’s decision to dissolve the state assembly.

Judicial commissioner Leonard David Shim set the date after hearing oral submissions from Tengku Fuad Ahmad, who represented the assemblymen, state Attorney-General Brenndon Keith Soh and senior federal counsel.

The High Court had wanted further arguments on whether it had the judicial authority to hear and decide on a challenge to the authority of the Sabah governor to dissolve the state assembly.

Shim on Aug 7 asked the state attorney-general, representing Juhar, and Tengku Fuad, counsel representing the 33 assemblymen including former chief minister Musa Aman, who filed for the leave for a judicial review, to submit further written submissions.

Twenty-five assemblymen had attended the hearing including Osman Jamal (Balung), Bolkiah Ismail (Pitas), Saddi Abdul Rahman (Sukau), Jahid Jahim (Tamparuli), Abidin Madingkir (Paginatan), Abdul Muis Picho (Sebatik), Hamisa Samat (Tanjung Batu) and Abdul Rahman Kongkawan (Labuk).

Musa and the 32 other assemblymen are questioning the July 29 written request from Shafie Apdal to Juhar to dissolve the assembly.

The dissolution paved the way for a snap election in the state, the date of which is expected to be announced by the Election Commission (EC) today.

The 33 assemblymen named Juhar as the first respondent, Shafie, the EC and the state government as the second, third and fourth respondents respectively.

The court also set Aug 19 for the applicants to file their written reply submissions, which were raised by the state AG’s counsel on their locus standi to challenge Juhar’s decision.

The state AG’s Chambers (AGC), representing the first, second and fourth respondents, was allowed to appear for the review application hearing.

Soh said they were still relying on the argument that the governor’s decision to dissolve the assembly was a non-justiciable decision.

“This is a matter of high policy and not suitable for the judiciary to be making a decision as to whether the prerogative of the governor to dissolve the assembly was proper or not,” he told reporters after the hearing which lasted for over four hours.

“Because Malaysia subscribes to the separation of powers, we have three co-equal branches: the executive, legislative and the judiciary. They should not encroach into one another’s domain.

“That is our position. And we still maintain the position that the dissolution was lawful under the circumstances, constitutional and valid.”

He added that there is no restriction on the EC from continuing its constitutional duty to carry out and facilitate the democratic process of an election.

Meanwhile, Fuad said the state AGC had decided to raise some new points including the locus standi of the applicants to challenge Juhar’s decision.

“Because these new points took us by surprise, I asked the judge to give a written reply to those points as well as a written reply to the state AG’s submission on justiciability.

“One of the AGC’s lawyers did not follow the direction. And because of that, fair is fair, we have to have time to reply. We will file our( written submission) on Wednesday,” he said

In the event that leave is granted on Friday, Fuad said the court had indicated that it would deliberate on whether there will be a stay on the proclamation of an election.

Fuad said in his oral submission earlier that the application was filed as the letter requesting the dissolution had contained an error.

He said the article cited in the letter, 10(1)(2)(b), did not exist in the state constitution. He added that it should have been Articles 10 (1) and 10 (2)(b) of the constitution.

Fuad also argued that the governor had discretionary power under the state constitution but not prerogative power.

In his argument, meanwhile, Soh said there was no admissible evidence of reason at the time the letter was issued that the governor would doubt that the second respondent, Shafie, had lost his majority.

He also argued that the proclamation to dissolve the assembly was a constitutional duty of the governor.