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Court fixes hearing of appeal by Musa Aman, 32 others for Sept 7

PUTRAJAYA (Aug 26): The Court of Appeal has fixed Sept 7 to hear an appeal by former Sabah chief minister Tan Sri Musa Aman and 32 other assemblypersons against the dismissal of their judicial review application to challenge the decisions of the Sabah governor to dissolve the State Legislative Assembly and the Election Commission (EC) to hold a state election.

The date was fixed by a three-member bench led by Justice Datuk Yaacob Md Sam after being informed by Musa's counsel Tengku Fuad Tengku Ahmad that the Sabah Attorney-General's Chambers (AGC) and the AGC here only received a notice of motion for a stay of the Kota Kinabalu High Court decision last Friday.

The AGC, represented by Suzana Atan, S Narkunavathy and Sabah AG Brenndon Keith Soh, informed the bench that they needed time to reply to the notice from Musa and the 32 former assemblypersons.

After Tengku Fuad told the bench that the appeal records were almost ready, Justice Yaacob and the other members of the bench — Justices Datuk P Ravinthran and Datuk Wira Ahmad Nasfy Yasin — fixed the date to hear the appeal.

Initially, the hearing of the application by Musa and the 32 former assemblypersons for a stay was fixed for today. Following this, Tengku Fuad wants the stay application to also be heard on Sept 7.

He also informed the bench that Musa and the others would withdraw their stay application at the Kota Kinabalu High Court, which has been fixed for hearing on Friday.

The EC has fixed Sept 12 as the nomination day for the Sabah election, and Sept 26 as the polling day. Sabah initially has 65 state seats in 2018, but this has been increased to 73 at present.

Musa, who was Sungai Sibuga assemblyman and the 32 others, had named the Sabah Yang Dipertua Negeri, Tun Juhar Mahiruddin, caretaker Chief Minister Datuk Seri Mohd Shafie Apdal, the EC and the Sabah state government as respondents in the challenge over the dissolution of the assembly.

It was reported last Friday that Judicial Commissioner Leonard David Shim had found that Shafie acted within the limits of the Sabah Constitution in requesting Tun Juhar to dissolve the state assembly.

“Tun Juhar had acted within the ambit of his constitutional power to dissolve the state assembly,” Shim said.

The Kota Kinabalu High Court also found the proclamation to dissolve the state assembly to be constitutional and valid.

Shim said the court looked into the substance rather than the form of the written request (letter by Shafie to Tun Juhar to dissolve the assembly).

The 33 applicants' contention is that the letter was invalid and incapable of invoking the Yang Dipertua Negeri's power to dissolve the state assembly, and therefore it was ultra vires the Sabah Constitution and justiciable.

However, Shim said he found that the decision to dissolve the state assembly and the proclamation were not amenable to a judicial review, and thus non-justiciable.

The judicial commissioner also found that the 33 applicants had locus standi in that they had a real and genuine interest in the matter.

"After considering the affidavits, written and oral submissions (by the applicants' counsel), the applicants have met the threshold of locus standi,” he said.

Immediately after the court's decision, all 33 elected state representatives filed the notice of appeal against the Kota Kinabalu High Court decision.

At present in the Federal Court, the bench will hear Musa's appeal to challenge Shafie being appointed the rightful CM following the 2018 general election.

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