Shafie Apdal’s lawyer says state leaders’ discretionary powers not justiciable in hearing challenging dissolution of Sabah state assembly

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. — Picture by Shafwan Zaidon
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. — Picture by Shafwan Zaidon

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.

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