Apex Court Dismisses Bid to Stop Sabah Election

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Musa Aman also filed a similar application at 6pm yesterday, but the court did not hear his case.

The Federal Court today dismissed an application to stop the Sabah state election, the nomination of which is tomorrow, and polling on Sept 26.

The application was brought by former Tamparuli assemblyperson Jahid @ Noordin Jahim to stay the state election pending disposal of an appeal over who the rightful chief minister of Sabah is – Shafie Apdal or Musa Aman.

Judge Abdul Rahman Sebli, who led a three-member bench comprising judges Zabariah Mohd Yusof and Mary Lim Thiam Suan, held that the court was not persuaded to exercise its discretion in granting the stay.

“Our decision is unanimous. We fully appreciate the importance of preserving the integrity of the applicant (Jahid) but, at the same time, we are also mindful of the importance of preserving the integrity of the democratic process through an election.

Lim Huey Teng/Malaysiakini

“Having given the matter serious consideration, we are of the view that on the balance of convenience and greater public interest, the application is far way out of the interest of the applicant,” he said.

In the circumstances, Abdul Rahman said, the panel dismissed the application with no order as to costs.

Jahid had filed the application on Tuesday naming Shafie, Sabah state legislative assembly speaker Syed Abas Syed Ali, and state assembly secretary Bernard J Dalinting as the respondents.

In his application, he sought to have the Sabah state government gazette dated July 30 stayed until the disposal of the appeal by the Federal Court.

He also sought to stay the proclamation by the state governor dated July 30 for the dissolution of the 15th Sabah state legislative assembly under Article 21(2) of the Sabah constitution pending the conclusion of the appeal.

Musa, who was present in court, also filed a similar application at 6pm yesterday. However, the court did not hear his case as counsel for the respondents said they need time to reply to his application.

Musa and Jahid obtained leave from the Federal Court on Aug 26 to proceed with the appeal over their challenge of the validity of Shafie’s appointment as the Sabah chief minister.

A three-member bench led by Federal Court judge Mohd Zawawi Salleh, in a majority 2-1 decision, allowed the applications by Musa and Jahid to obtain leave to appeal against the Court of Appeal decision. Judges Abdul Rahman and Zabariah ruled in favour of the two while Mohd Zawawi dissented.

Both Musa and Jahid had their appeals dismissed by the Court of Appeal on Nov 28 last year. A litigant must first obtain leave in order to proceed with an appeal to the Federal Court.

Earlier, at today’s proceedings, counsel Cyrus Das, acting for Shafie, had made an application for Abdul Rahman and Zabariah to recuse themselves from hearing the case on the grounds there would be a real risk of bias as they were the two judges who gave the majority judgment in the application-for-leave hearing.

However, both judges said they would remain on the bench as there was no valid reason for them to recuse themselves.

At the outset, counsel Firoz Hussein Ahmad Jamaluddin, who represented Jahid and Musa, urged the court to allow the stay on the grounds that if Musa succeeded in his appeal over him being the rightful chief minister, then the dissolution of the state legislative assembly would be rendered invalid because Shafie’s advice for the state governor to dissolve the assembly would have come from an “unlawful chief minister.”

“In the event of the court not granting the stay, the election will proceed and, subsequently, if the court rules Musa as the rightful chief minister, it would cause a constitutional crisis in Sabah,” he said.

Das countered by saying that the stay application is an abuse of process as Musa’s appeal over the matter of the rightful chief minister is different from that of the dissolution of the state assembly.

He also said that stopping the election will affect 1.12 million voters as well as more than 200 candidates in 73 constituencies.