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Shafie stays as Sabah CM
Published on: Thursday, November 08, 2018

Kota Kinabalu: Datuk Seri Mohd Shafie Apdal remains as the Chief Minister of Sabah after the High Court here Wednesday dismissed the suit brought by former Chief Minister Tan Sri Musa Aman challenging his appointment as Chief Minister.

Kuching-based Judge Datuk Yew Jen Kie ordered Musa to pay RM30,000 cost to the defendants, to be divided between Head of State Tun Juhar Mahiruddin and Shafie, who were named the first and second defendant, respectively.

She also dismissed with cost of RM15,000 the Originating Summons filed by Parti Bersatu Sabah's Tamparuli Assemblyman Datuk Jahid Jahim who sought a declaration that he was the legal Local Government and Housing Minister and that Musa was the lawful Chief Minister.

Earlier, Yew delivered her 47-page decision in one-and-half hours in a court packed with mostly State Cabinet Ministers led by Shafie and media as well as supporters from both parties.

In her decision on Musa's Originating Summons, Yew stated that there were two main issues for the court's determination –whether Juhar was acting within his constitutional power when he purportedly dismissed Musa as Chief Minister and whether Juhar's appointment of Shafie as the Chief Minister was ultra vires, null and void.

On whether Musa still has the confidence of majority of members of the Assembly, Yew said Musa's reading of Article 6(7) of the Sabah Constitution and his submission of BN-Sabah as a political party was untenable.

"BN-Sabah is a political coalition made up of many political parties. It is not a political party even though it is a registered entity and that the candidates of the parties stood on the symbol of the BN-Sabah in the GE-14. It is no different from the coalition led by Shafie albeit the latter was not registered and the candidates of the parties stood on the symbols of their parties," said Yew.

Musa's argument that the word "majority" in Article 6(7) must be given an ordinary meaning which means "relative majority", "the most" and not "absolute majority" is also untenable.

"If the court were to agree with Musa, it would lead to an absurd situation: it would mean the political party, Parti Warisan Sabah (PWS), which had secured 21 seats in the GE-14 had the most votes and the second defendant (Shafie), as member of the Assembly and the leader of PWS which won the most votes, was likely to command the confidence of the remaining 39 assemblymen and therefore the first defendant ought to have appointed him as the Chief Minister pursuant to Article 6(3) of the Sabah Constitution.

"This surely cannot be the intention of the State Legislature when it introduced clause 7 of Article 6 by Enactment No. 5/1990," she said.

She said the ordinary meaning of the word "majority" is the larger number or more than half.

"It is the fact that no single political party had won the majority of the 60 State constituencies. Thus, Article 6(7) does not come into play when first defendant (Juhar) exercises his discretionary power in appointing a Chief Minister under Article 6(3) Sabah Constitution.


"The collective votes won by the BN-Sabah coalition led by plaintiff (Musa) and the coalition led by Shafie were 29 each, it was a tie.

"Subsequently with the allegiance given by the Star to BN-Sabah, which increased the collective votes of BN-Sabah from 29 to a simple majority of 31, did Musa command the confidence of the majority of the Assembly and he was accordingly appointed as the Chief Minister of Sabah on 10.5.2018 at 11pm.

"However, on May 11, Juhar received six statutory declaration affirmed by six assemblymen from BN-Sabah declaring and pledging their support for Shafie to be appointed as the Chief Minister.

"Based on the six statutory declarations, Juhar was convinced that Musa had lost the command of the confidence of the majority of the Assembly. Hence, in an audience between him and Musa, he requested Musa to tender his resignation as he had lost the command of the confidence of the assemblymen but Musa refused.

"Thereafter based on his understanding that as Musa refused to tender the resignation of the State Cabinet under Article 7(1) Sabah Constitution, Musa and his State Cabinet are deemed to have vacated their respective offices."

Juhar proceeded to appoint Shafie under Article 6(3) read with Article 10(2)(a) Sabah Constitution, she said.

"It is evidently clear that with the defection of six assemblymen from BN-Sabah, the assemblymen from BN-Sabah decreased from 29 to 23, Musa had therefore lost the command of the assembly majority," said Yew.

In another point on whether a vote of non-confidence is the only way to determine the loss of confidence of the majority of the members of the Assembly, Yew held that the Apex Court had in the Perak case laid down the legal principles that there is no mandatory requirement that there must be a motion of no-confidence passed in the assemblymen against a Chief Minister before he ceased to command the confidence of the majority of the members of the legislative assembly.

This fact can be established through extraneous sources, said Yew.

"Despite the distinguishing facts and circumstances of the Perak's case and that Perak is constitutional monarchy where the Sultan has the reserved power and that the Head of State's exercise of discretion is limited by Article 10(2)(a) to the appointment of a Chief Minister, the legal principles enunciated by the Federal Court is applicable to the present dispute as both cases involved the same issue i.e. who is the rightful Chief Minister and that Article XVI(6) is parimateria with Article 7(1) Sabah Constitution," she said.

She further held that in Amir Kahar's case, it was said that the evidence of a Chief Minister ceases to command the confidence of the majority of the members of the Assembly for the purpose of Article 7(1) may be found from other extraneous sources and are not confined to their votes taken in the assemblymen provided that those extraneous resources is properly established.


"There was no perjury being committed by the six assemblymen who defected from BN-Sabah as alleged. The said six assemblymen merely wrote letters expressing their agreement for Musa to be the Chief Minister.

"These letters are not statutory declaration in compliance with the Statutory Act 1960 whereby they declared and pledged their allegiance to Musa to be appointed as the Chief Minister.

"Even though Musa did not request for dissolution of the Assembly nor did admit loss of confidence of the majority of the members of the Assembly, in absence of allegation that the statutory declarations are fabricated and made under duress, the six statutory declaration constituted extraneous resources which is properly established upon which Juhar could form his judgment that Musa had lost the command of the majority of the assembly and that Shafie is the one likely to command the confidence of the majority of the members of the Assembly," she held.

She further held that the Federal Court in the Perak's case had established the legal principles which upon application to the present case, means:

a) That the word "shall" in Article 7(1) of Sabah Constitution should be given a mandatory effect and it is incumbent therefore on the Plaintiff who, having lost the confidence of the majority of the Assembly, to tender the resignation of the State Cabinet. The term Cabinet shall consist of a Chief Minister under Article 6(2) of the Sabah Constitution. Musa's refusal to resign after being requested to do so by Juhar clearly went against the express provision of Article 7(1).

b) Since Musa refused to tender the resignation of the State Cabinet under Article 7(1), he and the members of the State Cabinet are deemed to have vacated their respective offices, paving the way for the new cabinet to be formed. Thus, the dissolution of the State Cabinet under Article 7(1) does not involve the Head of State or the members of the Assembly. "For the reasons aforementioned, the issue that Juhar had acted ultra vires of the Sabah Constitution by dismissing Musa does not even arise by reason that the State Cabinet including the Chief Minister are deemed to have vacated their respective office when the Chief Minister refused to tender his resignation after having lost the command of the confidence of the majority of the members of the Assembly. Accordingly, Issue (I) - whether Juhar was acting within his constitutional power when he purportedly dismissed Musa as Chief Minister - is a non-issue," she held.

On the second issue of whether the appointment of Shafie is unconstitutional, null and void, Yew held that on the high authority of the Perak's case, it is clear that when the Cabinet including the Chief Minister is deemed to have vacated their respective offices, it paved the way for Juhar to appoint Shafie to replace Musa pursuant to Article 6(3) Sabah Constitution. "Accordingly, the answer to (the second issue) is in the negative," she said.

In other issues - whether the Head of State's exercise of power under Article 6(3) of the Sabah Constitution to appoint the Chief Minister is non-justiciable, Yew held that the constitutional validity of the judgment of the Head of State can be called into question and justiciable.

To another issue on whether the court should have regard to the political uncertainties created by the party hopping after election so that it can minimise the party hopping problem in Sabah, Yew held that: "The issue of party hopping is not in the arena for court's determination in this dispute and it is best left to the wisdom and the will of the Parliament to stop it."

In another issue on whether the matter is academic, Yew held: "Notwithstanding that the Assembly had convened its first sitting on June 11 and that 44 assemblymen had pledged and declared their support for Shafie, which, reaffirmed that Shafie has the command of the confidence of the majority of the members of the Assembly, my view is that it comes within the exception described in the case of R vs Secretary of State for the Home Department (1999) 1 AC 450.

"Thus, it does not render the issues before the Court academic as it involves a constitutional issue pertaining appointment of Shafie and it is of high public interest that the court should deliver a ruling on it to settle the issue for the interest of the public," she held.


Musa, who claimed that he is and still remains as the Chief Minister of the State of Sabah, was challenging his purported removal as the Chief Minister of the State of Sabah by Juhar and the subsequent appointment of Shafie as the Chief Minister in place of him on the ground that Juhar had acted ultra vires of the Sabah Constitution.

Musa was represented by counsel Tengku Fuad Tengku Ahmad and S.Vanugopal, while Juhar and Shafie were represented by State Attorney General Datuk Zaleha Rose Pandin and Senator Datuk Douglas Lind, respectively. - Jo Ann Mool

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