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PUTRAJAYA: The Yang di-Pertuan Agong, Malaysian rulers and governors have absolute discretion to dissolve their legislatures, a lawyer told the Court of Appeal today.
Cyrus Das, who represented Acting Chief Minister Shafie Apdal and the Sabah state government, said this discretion cannot be challenged in court “regardless of the circumstances.”
The lawyer said that all state constitutions were inspired by the Federal Constitution, the supreme law of the land, and that article (10) (2) (b) of the Sabah constitution was similar to article 40 (2) of the first .
“Never in our history has Agong’s discretion to dissolve Parliament been challenged in court as it is not justiciable (not subject to legal challenge),” he said in his presentation before a three-member court chaired by Abdul Karim Abdul Jalil. . Others on the panel are Abu Bakar Jais and Supang Lian.
Article 40 (2) provides that the king has absolute discretion, among others, over the appointment of the prime minister and to deny consent to a request for dissolution of Parliament.
Former Chief Minister Musa Aman and 32 other former assembly members are appealing against the High Court’s dismissal of their permission for judicial review on August 21, following the consent of Sabah Governor Juhar Mahiruddin to dissolve the state assembly.
Das said appellants were questioning the governor’s discretion to dissolve the legislature in defiance of the dissolution proclamation on July 30.
Earlier, Sabah Attorney General Brenndon Keith Soo, representing Juhar, said that the power to dissolve the legislature rested with the governor. “Article 21 (2) of the state constitution allows the governor to extend or dissolve the assembly.”
Soo said Juhar did not act on a whim to dissolve the house, but on the advice or request of the prime minister. “The governor’s discretion cannot be challenged in a court of law because it followed the provisions of the constitution.”
He said dissolution was allowed, as requested by Shafie, to return the mandate to the people of Sabah.
“This is to allow the democratic process for voters to choose the government of their choice,” he said, adding that the dissolution was allowed to avoid any political instability that arose after the July incident.
Lawyer Firoz Hussein Ahmad Jamaluddin, who represents Musa and the rest, said that Shafie had no right to advise or request the governor to dissolve the assembly as he had lost the majority support of the 65 assembly members (elected and appointed).
This was because Musa had submitted statutory declarations of 33 assembly members to Istana to form the next government.
On August 21, Judicial Commissioner Leonard David Shim of the Kota Kinabalu High Court dismissed the request for permission for judicial review on the grounds that the governor’s actions were not justiciable in a court of law.
He said there was a precedent in 1986 when then-Governor Adnan Robert granted the dissolution of the legislative assembly within one year from the date of the previous state elections following a request from then-Prime Minister Joseph Pairin Kitingan.
Das will continue with his presentation tomorrow.
