By Suriati Sidek Ahmad
PUTRAJAYA, Sept 8 (NNN-BERNAMA) — The Court of Appeal today dismissed the appeal brought by 33 assemblymen against a High Court ruling over the Sabah Yang Dipertua Negeri’s decision in dissolving the state legislative assembly on July 30.
Justice Datuk Abdul Karim Abdul Jalil, who led a three-member bench comprising Justices Datuk Abu Bakar Jais and Datuk Supang Lian, also rejected the assemblymen’s bid for a stay of today’s ruling pending an application for leave to appeal to the Federal Court.
With this ruling, the state election will proceed as scheduled. The Election Commission (EC) has set Sept 12 for nomination and Sept 26 for polling.
The 33 assemblymen, led by former Sabah chief minister Tan Sri Musa Aman, had appealed against the Kota Kinabalu High Court dismissal of their application for leave for a judicial review to challenge the decision of the Yang Dipertua Negeri made on July 30.
The panel, in a unanimous decision, ruled that Sabah Yang Dipertua Negeri Tun Juhar Mahiruddin had correctly exercised his discretion within the provisions of the Sabah Constitution in dissolving the state legislative assembly.
Justice Abdul Karim said the panel is of the view that no error was made by High Court Judicial Commissioner Leonard David Shim when he ruled that the case is non-justiciable (meaning it is not subject to trial in a court of law) and therefore not amenable for judicial review.
“With all the case law presented before us, the court is of the view that when it comes to the subject of dissolution of the state assembly, the court is of the position not to interfere with the decision to dissolve the assembly.
“We therefore dismiss the appeal by the 33 appellants and affirm the decision of the Judicial Commissioner,” said Justice Abdul Karim.
In an immediate reaction, counsel Datuk Firoz Hussein Ahmad Jamaluddin, who represented the assemblymen, made an oral request for a stay of today’s ruling pending an application for leave to appeal to the Federal Court.
Sabah Attorney-General Brenndon Keith Soh, representing Tun Juhar, objected to the stay application, saying that at this juncture there is no appeal pending before the Federal Court and they would have to seek the stay when the leave application is filed.
Counsel Datuk Cyrus Das, who appeared for Chief Minister Datuk Seri Mohd Shafie Apdal and the state government, also objected to the stay request, saying the election machinery had taken every step for the election where 30,000 personnel and 73 returning officers are involved.
He said that according to provisions in the Sabah Constitution, the election must be held within 60 days upon the dissolution of the state assembly.
“We have 72 hours for nomination in the state election … and I think there is too much of disturbance on the ground … and the particular people who want to contest should know where they stand,” he said.
Senior Federal Counsel Suzana Atan, who appeared for the EC, also opposed the stay application on the grounds that the election machinery is ready and nomination is set for this Saturday.
Musa and several of the other assemblymen were present in court.
The High Court, in dismissing the application of the 33 assemblymen on Aug 17, had ruled that Mohd Shafie had acted within the Sabah Constitution in requesting Tun Juhar to dissolve the state assembly and said the proclamation to dissolve the state assembly was constitutional and valid.
In their application for leave for the judicial review, Musa and the assemblymen backing him had sought court orders to quash Mohd Shafie’s request to Tun Juhar to dissolve the assembly; quash the proclamation of the dissolution of the assembly; and quash the Sabah state government gazette notification on the dissolution.
The 33 elected representatives claimed on July 29 that they made up the majority in the state assembly and wanted Tun Juhar to swear in a new government which would oust the state government of Mohd Shafie.
Mohd Shafie, who is Semporna MP and incumbent assemblyman for Senallang, pre-empted Musa’s move by advising Tun Juhar to dissolve the state assembly, which had 65 members at that time, including five nominated assemblymen.
— NNN-BERNAMA
