PUTRAJAYA, Sept 7 — For as long as the country has been independent, the discretionary powers of heads of states, be it the Yang di-Pertuan Agong, state Sultans or Yang di-Pertua Negeri (TYT), over their consent to dissolve Parliament or state assemblies has never been questioned or challenged through the courts, argued Datuk Seri Shafie Apdal’s lawyer in the Court of Appeal today.
Datuk Cyrus Das, while representing the caretaker Sabah chief minister as a respondent of a suit initiated by former chief minister Tan Sri Musa Aman, pointed out that no one had ever questioned the discretion of such powers, especially concerning the dissolution of legislative assemblies, because it has always been recognised as a non-justiciable action.
“Never in 61 years and never in our constitutional history has there been any challenge to the Yang di-Pertuan Agong for dissolving Parliament.
“Because it has always been recognised as a subject not justiciable before the courts.
“The state constitutions mirror the Federal Constitution on discretionary powers, and on conditional powers which are not an absolute discretion.
“If the process leading to the decision which is non-justiciable is also non-justiciable, then the final decision surely is also not justiciable,” Das argued before a three-judge bench.
Das earlier cited Article 40(2) of the Federal Constitution, Article 10(2)(b) of the Sabah State Constitution and Article 36(2) of the Perak State Constitution as those which share similar provisions on the discretionary powers of leaders.
Das’ argument today was part of the hearing at the Appellate Court over Musa’s application to obtain leave for a judicial review against Sabah Yang di-Pertua Negeri Tun Juhar Mahiruddin, Shafie, the Sabah government and the Election Commission (EC) over the dissolution of the state legislative assembly.
The suit was initiated by Musa and 32 other Sabah assemblymen, represented by Tengku Fuad Ahmad and Datuk Firoz Hussein Ahmad Jamaluddin, and is out to challenge the dismissal of their bid for judicial review by the Kota Kinabalu High Court.
The state government is represented by Sabah Attorney General Brenndon Keith Soh, Dayangku Fazidah and Chee Chun Yen, while the EC as the fourth respondent in the suit is represented by senior federal counsel Suzana Atan and S. Narkunavathy.
During the morning session, Firoz had argued that Juhar as the TYT hadn’t gone by the book when announcing the dissolution of the state assembly upon the request from Shafie, which he said should deem such actions unconstitutional.
He said Shafie’s admission that the state was experiencing political uncertainties, in his letter recommending the dissolution to the TYT, should have been enough to prompt Juhar to find a replacement instead of dissolving the assembly.
“If you no longer enjoy the majority (of the state assembly), you cannot advise.
“However, the characteristics of the case show that as a matter of law, on July 29, he (Shafie) lost the majority, and therefore, is not in a position to advise (the TYT) under Article 10.4 of the Sabah Constitution.
“It (dissolution) therefore can be checked by the courts; what we can challenge is a non-constitutional exercise of discretion,” said Firoz.
Article 10.4 of the state Constitution relates to the confines of the TYT’s discretionary power, as stated within Clause 2 of Article 10, which relates only to the appointment of a chief minister and concerning the withholding of consent to a request for the dissolution of the Legislative Assembly.
Firoz also pointed out how Shafie’s letter of request to Juhar had cited Article 10(1)(b) of the Sabah Constitution which he said is non-existent.
Musa’s lawyer added that if the chief minister was aware he had lost majority support, he should have instead requested the dissolution and not advised it, which Firoz said would have left the ultimate decision to the TYT.
“I submit that the act of dissolutions and appointments by the TYT is in fact justiciable; we cannot be having an unfettered constitutional power,” he said.
After lunch, Soh then argued that three legal points needed to be addressed to reach the threshold required to allow the leave application, the first by determining whether the power to dissolve the assembly exists within the rights of the TYT.
He then said Article 21(2) of the state Constitution confirmed such powers.
The second point he raised was to determine the parameters of the TYT’s discretionary powers, saying the act of dissolving the state assembly was well within the TYT’s authority.
“If both are answered in the affirmative, then there is no breach in making the decision to dissolve the legislative assembly.
“There is no breach of constitutional provisions, and no provisions are present that the first respondent (Juhar) has failed to comply with,” he submitted.
The hearing continues tomorrow afternoon.
Related Articles Court of Appeal dismisses Musa Aman, 32 others’ leave application seeking judicial review of Sabah assembly dissolution Umno president says ‘bridge established’ with Musa Aman as Sabah polls loom Shafie: Sabah can survive on its own