Cyrus Das, who represented caretaker chief minister Shafie Apdal and the Sabah state government said this discretion could not be challenged in court “no matter the circumstances”.
The lawyer said all state constitutions were modelled after 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 former.
“Never in our history has the Agong’s discretion to dissolve Parliament been challenged in court as it is non-justiciable (not subject to legal challenge),” he said in his submission before a three member bench chaired by Abdul Karim Abdul Jalil. Others on the panel are Abu Bakar Jais and Supang Lian.
Article 40 (2) states the king has absolute discretion, among others, on the appointment of the prime minister and to withhold consent to a request for the dissolution of Parliament.
Former chief minister Musa Aman and 32 other former assemblymen are appealing against the dismissal of their leave for judicial review by the High Court on Aug 21, following Sabah governor Juhar Mahiruddin’s consent to dissolve the state assembly.
Das said the appellants were questioning the governor’s discretion to dissolve the legislature by way of challenging the proclamation of dissolution on July 30.
Earlier, Sabah Attorney-General Brenndon Keith Soo, representing Juhar, said the power to dissolve the legislature was in the hands of the governor. “Article 21 (2) of the state constitution allows the governor to prorogue 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 chief minister. “The governor’s discretion cannot be questioned in a court of law because he followed the provisions in the constitution.”
He said the dissolution, as requested by Shafie, was allowed to return the mandate to the people of Sabah.
“This is to allow the democratic process for voters to pick the government of their choice,” he said, adding that the dissolution was allowed to avoid any political instability arising after the July incident.
Lawyer Firoz Hussein Ahmad Jamaluddin, who is representing Musa and the rest, said Shafie had no right to advise or request the governor to dissolve the assembly as he had lost the majority support of the 65 assemblymen (elected and appointed).
This was because Musa had submitted statutory declarations from 33 assemblymen to the Istana to form the next government.
On Aug 21, judicial commissioner Leonard David Shim of the Kota Kinabalu High Court struck out the leave application 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 had granted a dissolution of the legislative assembly within one year from the date of the previous state election following a request by then chief minister Joseph Pairin Kitingan.
Das will continue with his submission tomorrow.