CM replacement in spotlight

Datuk Seri Musa Aman (centre)

KOTA KINABALU: A burning question swirls around Sabah’s political and legal fraternity on why the Court of Appeal did not look into the constitutional powers of the Yang di-Pertua Negeri in replacing a chief minister who did not resign after losing majority support.

This debate rose after the Court of Appeal ruled last week against Tan Sri Musa Aman’s bid to fight the dismissal of his suit in challenging the appointment of Datuk Seri Mohd Shafie Apdal as state leader.

However, lawyer Datuk Douglas Lind said the question should no longer rise, citing a 2009 court decision on a Perak case as a precedent on a head of state’s right to replace a mentri besar or chief minister who had lost the majority.

Amid claims of unhappiness by some parties over the court’s move, Lind said the question on the powers of the head of state was already established in the Perak case.

Thus, he said Yang di-Pertua Negeri Tun Juhar Mahiruddin had the constitutional right to appoint Shafie to the position on May 12,2018, based on the 2009 case.

“Unless the Federal Court changes its decision later, the Perak case is legally binding, ” said Lind, representing Shafie at the Court of Appeal.He said there was no need to politicise the court decision to strike out Musa’s appeal against last year’s High Court ruling to dismiss his fight against his removal.

Musa challenged the constitutional powers of the head of state to remove him as chief minister and the subsequent appointment of Shafie to take over his position.

Lind said the power of the head of state was not the disputed issue.

“The real issue is the interpretation or application of Article 7(1) of the state constitution after Musa lost the simple majority following the defection of six Barisan Nasional assemblymen on May 11,2018.

“As required by Article 7(1), Musa was to have tendered his resignation from the Cabinet and based on the Perak case, Musa was deemed to have vacated his office.

“Based on the Perak case, the word shall in Article 7(1) mean it is mandatory that Musa tender his resignation of the Cabinet, ” he said.

He said the head of state exercised his discretion under Article 10 (2) of the Sabah Constitution and appointed Shafie as chief minister under Article 6(3) as he had a majority of 35 following the defection of the six Barisan assemblymen.

Lind said he had submitted to the court that the outcome of the case would be academic.

“Even if Musa succeeded with his appeal, there will be no consequence or outcome because Musa can’t satisfy the threshold of Article 6(3) of the Sabah Constitution.

“The Article expressly states that the governor can appoint a member of the assembly who has the command of the confidence of the majority to be CM, ” he said.

Musa’s lawyers are appealing the decision of the Court of Appeal.

Meanwhile, PBS president Datuk Seri Dr Maximus Ongkili voiced disappointment that the suit was dismissed on a technicality.

He said the case had core issues that needed to be addressed in terms of the powers of the Yang di-Pertua Negeri in removing and appointing a chief minister.

Furthermore, he said the point about Shafie being the rightful chief minister because he had the most number of assemblymen “is a presumption yet to be confirmed by actual voting in the Sabah legislative assembly to establish the numbers”.