Bastian Pius Vendargon said the ruling appeared to suggest that the express power to appoint heads of government carried with it the implied power of removal, especially when the legislature has yet to be formed.
“This matter should go to the Federal Court, and the 2010 apex court ruling in the Perak case should be revisited,” he told FMT.
He was responding to High Court judge Yew Jen Kie’s heavy reliance on the Perak case in her decision to throw out Musa’s bid to declare Shafie Apdal’s appointment as chief minister unconstitutional.
He said Yew had followed the precedent that holding a vote of no confidence in the assembly was not the only way to determine whether the head of government had lost the support of the legislative members.
“The court is of the view that the appointing authority can look into extraneous factors like statutory declarations to decide who commands the confidence of the majority,” he added.
He noted however that there was no state assembly in Sabah as the appointments of Musa and Shafie were made soon after the general election on May 9.
In the Perak case, meanwhile, there was already a legislature in place and a government which had been in operation for nine months, he said.
In 2009, Perak Barisan Nasional (BN), which had 29 seats, was allowed to form the government when three Pakatan Rakyat (PR) assemblymen declared themselves as independents and gave their support to the coalition.
This gave BN 31 assemblymen, leaving PR with 29. Then-Perak ruler Sultan Azlan Shah appointed Umno’s Zambry Abdul Kadir as the new menteri besar.
However, the High Court held that Mohammad Nizar Jamaluddin’s removal was unconstitutional as there was no test of confidence conducted in the state legislature.
The Court of Appeal reversed the ruling which was then affirmed by the Federal Court in 2010.
Yew said the Federal Court had laid down the legal principle that there was no mandatory requirement for a motion of no confidence against a chief minister before he could be considered to have lost the confidence of the majority of assemblymen.
“Despite the distinguishing facts and circumstances of the Perak case, and that Perak is a constitutional monarchy, the legal principles enunciated by the Federal Court are applicable to the present dispute as both cases involve the same issue,” she said when explaining her decision.
Musa was initially sworn in as chief minister on May 10 but defections by six BN assemblymen tipped the state assembly majority in favour of the Warisan-Pakatan Harapan (PH) coalition.
BN and Warisan-PH had each won 29 seats in the general election while STAR had two in the 60-member legislative assembly.
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The position of chief ministers or menteris besar is not same as any ordinary appointment,” he said. “Therefore, if Musa Aman alleged that he was the rightful chief minister, the judge should have reserved judgment and directed him to get a floor vote.”