ON Friday, Sulaiman Md Ali said the letter advising Yang di-Pertua Negeri (YDPN) Tun Mohd Ali Rustam to dissolve the state assembly was sent when he was still the Chief Minister (CM).

“My letter to Tun was when I was still the CM. So, I handed it over to Tun and it was up to him (to dissolve the state assembly),” Sulaiman told reporters.

“Everything is according to the rules and legislation, so if anyone is not satisfied, go to the relevant parties,” he added.

Sulaiman was perhaps responding to Pakatan Harapan Presidential Council’s contention that the dissolution of the state assembly was based on the erroneous advice given by a chief minister who had lost majority support of the assemblymen.

“After four assemblymen withdrew their support for the chief minister, based on the state constitution, the chief minister lost his appointment and eligibility to advise TYT,” the presidential council said in its statement.

It is curious that such a statement should be made given that the dissolution of the state assembly parallels the dissolution of the Sabah state assembly in July last year.

The following facts are based on the reported case – Tan Sri Musa bin Hj Aman & Ors v Tun Datuk Seri Hj Panglima Hj Juhar Hj Mahiruddin & Ors [2021] – and media reports.

On July 29, 2020 Mohd Shafie Apdal, then acting as the Sabah CM, wrote to the YDPN requesting the latter to issue a proclamation for the dissolution of the 15th Sabah state assembly.

The next day, it was reported that Shafie held an audience with the YDPN in the morning. An entourage led by Shafie was seen entering the Sabah Palace in Kota Kinabalu at around 8.25am. Shafie’s car was seen leaving the palace at 9.00am.

At the same time, it was reported that former CM Musa Aman was on the way to the Sabah Palace to meet with the YDPN at 10.00am. It did appear that the meeting took place. Malay Mail reported that Musa was barred from entering the palace.

A day before, Musa held a press conference announcing that he had purportedly secured enough support among assemblymen to form a state government.

To cut the story short, later in the day it was announced that the YDPN, having agreed to the request by Shafie acting as the CM, had signed and issued the proclamation of the dissolution of state assembly. On the same day, the proclamation was gazetted.

Musa asserted that he had the right to be sworn-in as CM. He said the YDPN had the responsibility to consider the majority that he purportedly had. He further claimed he had a simple majority with the support of 33 assemblymen to form Sabah government. It was therefore not necessary to dissolve the state assembly.

Musa said he had wanted to request the YDPN to rescind the latter’s consent to dissolve the state assembly and to instead appoint him as CM, but he was barred from entering the palace.

Musa subsequently applied to the High Court for leave for judicial review to quash the decision of the YDPN to dissolve the state assembly and the proclamation. The learned Judicial Commissioner dismissed the application. Musa appealed to the Court of Appeal.

One of the contentious issues in the case was whether the letter sent by Shafie to the YDPN was merely a request and not an advice to dissolve the state assembly. Shafie purportedly had lost the confidence of the majority of the assemblymen in the state assembly and therefore had no authority to advise the YDPN. As for the letter, it was also contended that it had made reference to a non-existent provision on dissolution of the state assembly.

Having perused the letter, the Court of Appeal ruled that it was both a request and an advice for the dissolution of the state assembly. Although the letter made reference to a non-existent provision of the Sabah Constitution, the Court did not think it was fatal and had affected the request and advice for the dissolution of the state assembly.

Delivering the judgment of the Court, Abu Bakar JCA said:

“We agree that both under the principles of constitutional law and general law, it is the substance of the letter or document that matters and not its form. Under constitutional law, as Lord Diplock in Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 said, “the court must look behind the label to the substance.”

It is well settled that if an authority exercises a power under the law, but the source of that power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law. (N. Mani v Sangeethan Theatre & Ors [2004], Supreme Court of India)

The Court of Appeal found that Shafie had ceased to command the confidence of a majority of the assemblymen in the state assembly both by direct evidence of the loss of the majority and also by inference.

According to Abu Bakar JCA, the direct evidence came in the form of the assemblymen, whose number was sufficient to constitute the majority, stating their wish that Musa be appointed the CM to replace Shafie.

Inference could also be deduced that Shafie had lost the majority support because if he had that support, he would not have requested for the dissolution of the state assembly.

While the Court of Appeal agreed that Shafie had lost the majority support in the state assembly and therefore no longer the CM to render any advice to the YDPN, the dissolution of the state assembly is the prerogative of the latter.

Citing the Federal Court case of Dato’ Sri Ir Hj Mohammad Nizar bin Jamaluddin v Dato’ Seri Dr Zambry bin Abdul Kadir (attorney-general, intervener) [2010] which explains the application of the constitutional provisions on dissolution of legislative assemblies, the Court of Appeal held that the decision whether or not to dissolve the state assembly is in the absolute discretion of the YDPN. The YDPN does not act on advice of the executive council in the matter of dissolution of the state assembly.

Musa contended that since he had obtained majority support in the state assembly, the YDPN should consider appointing him as CM instead of dissolving the state assembly. On this issue, the Court of Appeal said that the fact remains that absolute discretion is given for the YDPN to dissolve the state assembly.

It does not matter if the dissolution of the state assembly follows a request or an advice of the CM. The YDPN has the prerogative to dissolve the state assembly.

As seen above, the same contentions have and are being raised in the dissolution of the Malacca state assembly. On the authority of Musa’s case, the proclamation and dissolution of the Malacca state assembly should be considered a matter within the executive or legislature’s exclusive sphere that should not be encroached upon by the judiciary.

The YDPN and the CM are the persons most suited to decide under what circumstances and timing should the proclamation and dissolution of the state assembly take place. They are in a much better position compared to the courts in making the call for the end of term for the state assembly. The dynamics of politics are within their better grasps than the courts in deciding this.

Importantly, the proclamation and dissolution of the state assembly is not justiciable and consequently not amenable for judicial review. – October 10, 2021.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.