KOTA KINABALU: The Court of Appeal here today dismissed with costs former chief minister Tan Sri Musa Aman’s appeal against the dismissal of his suit challenging Datuk Seri Mohd Shafie Apdal’s appointment as Sabah Chief Minister.
The three-member bench comprising justices Datuk Kamardin Hashim, Datuk Rhodzariah Bujang and Datuk Mohamad Zabidin Mohd Diah allowed the respondents’ preliminary objection to strike out the appeal.
Kamardin read out the decision by the three judges and ordered Musa to pay RM20,000 to the first respondent, Sabah Head of State Tun Juhar Mahiruddin, and RM80,000 to Mohd Shafie, the second respondent.
Musa was represented by Tengku Fuad Tengku Ahmad, Datuk Anantham Kasinather and S. Vanugopal, while Juhar and Mohd Shafie were represented by Sabah Attorney-General Datuk Zaleha Rose Pandin and Datuk Douglas Lind respectively.
In objecting to the appeal, Lind tendered a letter, which was signed by Sabah State Legislative Assembly secretary Shafaruddin Halide, listing all the members of the Sabah State Legislative Assembly and their political affiliations with the majority in Mohd Shafie’s Parti Warisan Sabah-led government.
Lind prayed to the court to not hear the appeal as it would have no consequence, should the court grant the appeal, nor have an effect on Mohd Shafie.
He argued that the appeal was academic as Mohd Shafie had the numbers of members in the state assembly.
He cited Article 6(3) of the Sabah Constitution, which states that “the Sabah Head of State shall appoint a member of the State Legislative Assembly, who is likely to command the majority of the assembly”.
“So, a chief minister needs a majority. The appellant (Musa) will never achieve that threshold.
“He (Musa) hasn’t got the numbers. Therefore, he will not be effective,” he said.
In supporting the preliminary objection and adopting the submission by Lind, Zaleha Rose said the appointment of the chief minister was the prerogative of the Sabah Head of State.
Anantham told the court that the case involving his client did not fall under Article 7(1) of the Sabah Constitution, which states the event if a chief minister ceases to command the confidence of the majority of the State Legislative Assembly.
“The chief minister must admit he has lost the confidence of the majority and must request to dissolve the assembly,” he said.
Referring to the Perak mentri besar case, which High Court Judge Datuk Yew Jen Kie based her ruling on in Musa’s suit on Nov 7 last year, Anantham said Datuk Seri Mohammad Nizar Jamaluddin admitted to having a loss of confidence in the assembly and requested for a dissolution, which was not the case for Musa.
Tengku Fuad said the question of law was whether the conduct of the Head of State was constitutional and that the matter on deciding whether Musa should no longer be chief minister should be left to the State Legislative Assembly.
Vanugopal said a vote of no confidence against Musa never took place at the assembly sitting.
However, a vote of confidence was cast in support of Mohd Shafie by the assembly members, but it was not the same as a vote of no confidence against the former chief minister, he said.
Meanwhile, when speaking to reporters after the verdict, Tengku Fuad expressed disappointment on the Court of Appeal decision.
“We will take this appeal at a higher level as soon as possible,” he said.
Lind said he had no doubt about winning in objecting to the appeal, saying Juhar and Mohd Shafie had a very strong case.