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Wednesday, May 16, 2018

Lawyers split over Sabah CM

They also differ over whether a landmark Federal Court decision in a Perak case is a good precedent for any potential court case in Sabah.

KOTA KINABALU - Sabah lawyers are divided over who is the rightful chief minister in the state and whether a landmark Federal Court decision in a similar case in Perak will solve the issue if it goes to court.

This comes amid hot debate over whether the position belongs to Parti Warisan Sabah (Warisan) president Shafie Apdal or Sabah Barisan Nasional (BN) chairman Musa Aman following a stalemate in election results.

Lawyer Dominic Chew said Shafie was the rightful chief minister, going by the legal precedent set by the Federal Court in the 2009/2010 “Zambry case” in Perak.

Speaking to FMT, he said Shafie had also amassed the necessary majority required by the Sabah constitution.

“There’s no provision in the Sabah constitution that says a chief minister has to step down before another who has taken over the majority of the assemblymen’s support is sworn in to replace him.

“If someone in Musa’s position sues, the court is likely to refer to the decision in the Zambry case in Perak which reached the apex court, the federal court, whose decisions bind all the lower courts including those in Sabah and Sarawak.”

Chew said it was thus not necessary for Musa to step down before Shafie’s appointment as chief minister became valid.

In the Zambry case, the Federal Court affirmed the Court of Appeal’s decision that BN’s Zambry Abdul Kadir was the Perak menteri besar after three assemblymen from the Pakatan Rakyat (PR) opposition coalition quit and pledged support for BN following the 12th general election.

PR’s Mohammad Nizar Jamaluddin, who was menteri besar at the time, asked Perak ruler Sultan Azlan Shah to dissolve the state assembly and call for new elections to resolve the impasse.

However, the sultan rejected Nizar’s request, ordered him to resign, and swore in Zambry as the new menteri besar.

Nizar filed a lawsuit against Zambry in the Kuala Lumpur High Court, which ruled in his favour. However, Zambry successfully appealed to the Court of Appeal.

In its written judgment, the Court of Appeal said under the Perak constitution, there is no mandatory and/or express requirement for a motion of no confidence to be passed in the legislative assembly against a menteri besar before he loses the majority confidence.

“In the Sabah case, it is sufficient for the Sabah governor to inspect the statutory declarations made by the assemblymen who changed sides and determine that the Warisan coalition now has the support of the majority of the legislative house,” said Chew.

However, a Sabah native rights lawyer said using the Perak judgment as the basis in any case involving Musa might not be the right move as the constitutions of Sabah and Perak differ.

Henry Gudid said while each party had its own support for its views, Musa had been legally sworn in and the head of state had no power to dismiss or remove him.

“There is also an added controversy over that (Perak case) decision that was heavily criticised by the legal fraternity then as being twisted with political inclinations,” Gudid said in a statement.

“I agree with the view of retired federal court judge Gopal Sri Ram who said that the head of state could not revoke Musa’s appointment even if Shafie now showed he had majority support.

“It is not like you are appointing a gardener or driver and then sacking him.”

Gudid added that STAR president Jeffery Kitingan had every right to be at his office at the agriculture ministry despite Shafie’s warning that no one was allowed to report for duty at any state ministry office unless given permission by the present government.

“Given the dispute and uncertainty, it was not wrong for Jeffrey to turn up at the ministry for work as he had been properly sworn in as the agriculture minister-cum-deputy chief minister after Musa was sworn in as the chief minister,” he said.

“To deny or threaten Jeffrey from further attending the agriculture ministry is tantamount to criminal obstruction of him carrying out his duties as the agriculture minister.”

By Zam Yusa

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