R Kengadharan told FMT that justice Yew Jen Kie should not have relied on the Perak constitutional case to say that Sabah Governor Juhar Mahiruddin had the power to dismiss the chief minister.
“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.”
In her ruling, however, Yew said Musa’s legal challenge against Shafie Apdal was not academic as it was a case of public interest.
Relying heavily on the legal principles approved by the Federal Court in 2010, she said Juhar could take into account extraneous factors such as the statutory declarations from the six Barisan Nasional (BN) assemblymen who decided to give their support to Shafie.
She also ruled that Musa was deemed to have been removed from office when he refused to resign as ordered by Juhar following the loss of confidence from the majority of assemblymen.
Musa, who had been chief minister since 2003, was reappointed a day after the May 9 polls after gaining the support of 31 assemblymen. However, Juhar appointed Shafie as chief minister two days later following the defections by the BN assemblymen which gave him the support of 35 representatives.
Kengadharan claimed there was a sense of unease about Yew’s ruling which he attributed to a failure to properly distinguish between the Sabah and Perak cases.
“Given the peculiar factual matrix, it was necessary for the High Court to depart from normal standards instead of being submerged in stare decisis,” he said, referring to the legal principle of determining issues based on precedent.
In the Perak case, the nine-month-old government collapsed when Mohammad Nizar Jamaluddin lost power as menteri besar following defections by three of his assemblymen to BN.
This gave BN 31 assemblymen, leaving Pakatan Rakyat with 29. Umno’s Zambry Abdul Kadir was appointed as the new menteri besar by then-Perak ruler Sultan Azlan Shah.
Although the High Court ruled in favour of Nizar, the Federal Court affirmed a Court of Appeal ruling that Zambry’s appointment was constitutional.
Kengadharan, who disagreed with the outcome of the Perak case, said Perak’s constitution in any case differed from that of Sabah.
“The judge (Yew) should have distinguished this based on the facts in coming to a finding,” he added.
He also criticised the rationale adopted by the court, saying the decision had taken improper advantage of the Perak case.
“The decision may not have occasioned a miscarriage of justice, but the reasoning advanced by Yew overstepped boundaries,” he said.