All eyes on appellate court as it decides on Musa’s appeal

KOTA KINABALU: The Court of Appeal is expected to decide today on an appeal by 33 state assemblymen led by former chief minister Tan Sri Musa Aman (pic) who are challenging the Sabah Governor’s decision to dissolve the state assembly.

The appellate court hearing the case in Putrajaya will be deciding on the appeal by the assemblymen against a High Court decision to dismiss their application for leave for judicial review.

The High Court had decided that Yang di-Pertua Negeri Tun Juhar Mahiruddin’s actions were not justiciable in a court of law.

On Aug 21, Sarawak-based Judicial Commissioner Leonard David Shim, in dismissing the 33 assemblymen’s application, ruled that Datuk Seri Mohd Shafie Apdal as Chief Minister had the right to request for the dissolution of legislative assembly and Juhar had acted within the constitutional powers to allow for the dissolution.

As such, Justice Shim in his ruling said that the dissolution and proclamation were not amenable to judicial review and he refused the leave application.

Amid the legal bids, the Election Commission has set Sept 12 for nominations for the 16th Sabah State Elections with polling set for Sept 26.

Juhar will be represented by Sabah Attorney General Brenddon Keith Soh and Shafie by lawyer Datuk Dr Cyrus Das while the 33 assemblymen will be represented by Tengku Fuad Tengku Ahmad and Datuk Firoz Hussein Ahmad Jamaluddin.

Though political parties have been gearing for the elections since the dissolution, most are widely seen to be waiting for today’s Court of Appeal decision.

The parties that include incumbents Warisan Plus alliance and opposition Perikatan Nasional and its partners have yet to disclose their seat-sharing ratios as well as possible candidates pending the appellate court’s decision.

Legal circles are also watching the case as it could either end up as academic or set a new precedence in national politics.

According to constitutional expert Lim Wei Jiet, if the appeal was allowed, it could set a precedent where the courts could look into whether a ruler or governor had lawfully exercised his powers to dissolve a state legislative assembly.

“This would be a new precedent in Malaysia and open the possibility of challenging such decisions in future.

“If the appeal is not allowed, then Musa has one more level of appeal. He has to, however, obtain leave from the Federal Court to proceed with the appeal, ” he said.

Lim also said that if the appeal was allowed, the Court of Appeal would likely remit the matter back to the Kota Kinabalu High Court to decide at the substantive stage whether the dissolution was legal.

“We must remember that this appeal is only in relation to the Kota Kinabalu High Court’s decision at the leave (threshold) stage for judicial review and there is no determination of the merits yet.

“The Court of Appeal in remitting may be asked to stay the state elections pending the High Court’s decision. If a stay is granted, the elections will be halted, ” he said.

Meanwhile, Bar Council’s Constitutional Law Committee co-chair Andrew Khoo said if the appeal was allowed, it would mean that the Yang di-Pertua Negeri’s exercise of discretion could be looked into by the courts.

This, said Khoo, could open doors to the courts to review any and all of the Yang di-Pertua Negeri’s exercise of discretion in other matters.

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