Sabah is currently facing a constitutional crisis, the state now has two chief ministers.

In the May 9th Sabah state polls, Sabah BN won 29 seats while Warisan, which has working ties with Pakatan Harapan, also secured 29 seats. Two other state seats were won by Parti Solidariti Tanah Airku led by Datuk Dr Jeffry Kitingan.

On May 10th, Musa was sworn-in as the chief minister before the TYT after securing a 31-majority following Parti Solidariti Tanah Airku’s decision to form an alliance with Sabah BN.

On May 12th, Shafie was sworn in as the chief minister after six assemblymen from Musa-led government declared their support to the Warisan’s Shafie Apdal to take over the government.

Both Musa and Shafie have introduced their cabinet line-up after being sworn as chief minister.

 

Today the 17th of May, Sabah Barisan Nasional (BN) chairman Musa Aman filed a writ of summons in the High Court seeking a declaration that he is and remains the lawful Sabah Chief Minister.

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The writ was filed through Messrs F.T. Ahmad and Co, which is acting for Musa.

Musa named Yang di-Pertua Negeri Tun Juhar Mahiruddin as the first respondent and Parti Warisan Sabah (Warisan) president Datuk Seri Mohd Shafie Apdal as the second respondent.

Lawyer Tengku Fuad Tengku Ahmad, in a statement, said Musa was seeking a declaration, among others, that he is and remains the lawful Chief Minister and that the purported swearing in of Shafie as a second Chief Minister by the state of head was unconstitutional.

“The writ also seeks a declaration that any and all acts by Shafie whilst purporting to be the Chief Minister are also null and void and of no effect.

The court fixed June 19 to hear the suit before Justice Ravinthran Paramaguru.

Now the question is: does the TYT have the power to revoke Chief Minister Musa Aman’s appointment, sworn in lawfully, in the presence of the the Chief Judge of Sabah and Sarawak, Tan Sri Richard Malanjum?

According to retired federal court judge Gopal Sri Ram, the head of state could not revoke Musa’s appointment even if Shafie now showed he had the majority support.

UPDATES – 24th August 2018

Mohd Shafie Apdal today failed in his bid to strike out former Sabah Chief Minister Musa Aman’s originating summons challenging his (Mohd Shafie’s) appointment as the new Chief Minister on May 12.

Justice Yew Jen Kie when delivering her decision through teleconferencing in the Kota Kinabalu High Court , said Musa as the plaintiff in the case, had raised a question of law which rendered the originating summonses unsuitable to be struck out summarily.

“Upon perusal of the affidavits and submission of the parties, I am satisfied that the plaintiff has raised a question of law which requires full consideration which renders the originating summons unsuitable to be struck out summarily.

“As such, I dismiss the striking-out application with costs in the cause,” she said.

In this regard, Yew ordered Musa to file his submission on the originating summons against Mohd Shafie on or before Sept 14, while the Mohd Shafie is file his on or before Sept 24.

Musa is also to file his reply on Oct 5.

Yew set Oct 26 to deliver her decision.

Mohd Shafie was represented by counsel Douglas Lind, while Musa’s counsels were Tengku Fuad Tengku Ahmad and Suku Vanugopal.

State Attoney-General Zaleha Rose Pandin and Dayangku Fazidah Hatun Pg Bagul represented Sabah Governor Juhar Mahiruddin.

Mohd Shafie filed the application on June 5 to strike out the suit on the grounds that Musa had no valid reason to challenge his appointment on May 12 as the new chief minister.

The following day, Musa filed a fresh suit against the Sabah governor and Shafie, in place of the suit filed on May 17, seeking a declaration that he (Musa) was the rightful chief minister of Sabah.

Musa was sworn in as chief minister on May 10 after securing simple majority in the 14th general election but lost the majority when several assemblymen from his party (Umno) and from a BN component party (Upko) jumped ship to give their support to Parti Warisan Sabah lead by Mohd Shafie.

– Bernama

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Comments
  1. Anonymous says:

    If the intent is to create Malaysia Baru, Rule of Law must be upheld.
    The law is the law.

    TYT had acknowledged Musa Aman is the lawful CM n only on 14 May sent MA a letter asking MA to resign n deemed to have resigned. This is saying MA is lawful Chief Minister but required to resign.

    TYT refused to sign the appointments of the 6 appointed ADUNs on 10th n 11th May as advised by MA as CM.
    This is a clear breach of the Sabah Constitution. Remember MA is still CM at this point in time.
    With 6 appointed ADUNs, MA’s majority would have been 37-29.
    Even if TYT had discretion to decide on majority, is exercise of discretion lawful given the breach of the Constitution.? The answer is obviously not.
    Further, a decision to jump ship by any ADUN based on 60 is purely conjecture as the breach of Constitution. had occurred which prevented the 37-29 majority. An ADUN may have second thoughts if there was an actual 37-29 scenario.

    Interesting times coming up?
    A Shafie Apdal win will not end issue of his legality until an appeal is ventilated n decided by the Federal Court.
    A MA win will result in a change of govt. and probably invalidate all actions of SA from 12 May.
    SA would probably appeal but would the Court grant a stay for SA to remain as at least caretaker government. Why would the Court grant a stay to SA when it has just decided that MA is the lawful CM n SA not lawful?

    Like

  2. David says:

    I fully understand your line of argument. But it would be interesting to see how the law judge an act by a governor who clearly has no constitutional authority to sack a serving CM he has appointed a day earlier.

    I am not defending the former CM, nor do I support UMNO’s return to power. In fact PH has done well and generally Msians are happy with the defeat of BN/UMNO.

    But the principle of “rule of law” must be upheld. Our constitutional democracy must be defended. Governor has no power, except those conferred by the Constitution limited to appointing CM when there is a vacant eg after general election. Governor cannot usurp the power of the state assembly to determine whether or not CM has a majority when a government or a proper cabinet has been put in place. Governor act only after CM loses his majority through a motion of no confidence during a sitting assembly.

    Governor cannot sack a serving CM based on mere heresy or information delivered to him without going through proper and established protocol in the state assembly. Even if there are defections and theoretically a serving CM may hv lost his majority, CM can continue to govern as a minority govnt until a vote of no confidence is passed against him in the assembly.

    Obviously there was no vote of no confidence against the then CM.

    There is no end to this power grab. In 1994, PBS has to deal with the same situation. Guess who was the master mind behind then CM Tun Sakaran. You may hv forgotten Shapie was the CM Pol Sec and close adviser. The difference between 1994 and 2018 is that in 1994 TS Pairin tried to dissolve assembly and later resigned voluntarily. By dissolving assembly but denied, the governor has the right to appoint another CM whom he believes command a majority.

    Is there legal precedence or authority on this. I cannot remember a case a serving CM was sacked after one day. This never happened.

    In the case of Nizar vs Zamri. PH lawyers fought UMNO on this case. PH won in the high court but lost in the appeal court. It would be interesting to see where PH stands on this issue today.

    May be one may cite the case involving Tun Mustapha and TS Pairin. The court if I remember well did not endorse governor’s power to sack Tun Mustapha but rather the court found appointment of Tun Mustapha was constitutionally flawed and therefore null and void. PBS was the obvious winner in 1985 with 2 seat majority (plus Pasok). But Harris suggested and Tun Mustapha bought the idea that with 6 nominated assemblyman USNO plus Berjaya would hv a majority in the state assembly. The presiding judge disagreed. Therefore TS Pairin won his case.

    So, power and influence is in the hands of PH today. We do not know how the judiciary will deal with this case. Lets wait fr Sept 3. Until then, let the opposing argument stand as they are fr now.

    Like

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