KOTA KINBALU: Gabungan Bersatu Sabah’s (GBS) plan to take over the State government in the event of former Chief Minister Tan Sri Musa Aman winning the case yesterday has now gone down the drain and remained an elusive political dreams.
Warisan Supreme Council Member Martin Tommy said Solidariti Tanah Airku (STAR) president Datuk Seri Dr Jeffrey Kitingan failed to appreciate the difference between filing a legal action by writ of summons and that of Originating Summons.
“Their so called plan has now come to nothing. Even their plan to allegedly say that 13 assemblymen would jump ship and join them went bust,” he added.
He said Jeffrey should be an effective opposition member instead of daydreaming of forming a government.
“Jeffrey is obviously in a political limbo as he had tried to pool the wool of the people by saying that he and GBS are ready to take over the government in anticipation of a win (Musa winning the case) yesterday which did not materialise,” he said when contacted by the media here, today.
Martin said this after Jeffrey questioned the High Court’s decision to maintain Datuk Seri Mohd Shafie Apdal as Chief Minister on the basis of affidavits from assemblymen, saying it was setting a dangerous trend that could be replicated later without the need to go back to legislative assemblies.
Jeffrey also asked if the court was giving the governor powers to decide who has the confidence of the majority, instead of the state assembly.
According to Martin, it was Musa who chose to file an Originating Summons to seek a declaration that he was still the legitimate Chief Minister by way of affidavit evidence instead of by way of a Writ.
Musa had originally filed a writ but later withdrew it as he was hiding in Europe and did not want to face arrest, he said.
“A writ would require him to appear as a witness in trial but due to his circumstances then, he instructed his lawyer to convert his writ to an Originating Summons where only affidavit evidence needed to be filed without his presence,” he said.
According to Martin, Jeffrey is obviously a man of short memory remembering things only for his own political convenience.
“Musa has himself to blame for converting his action to Orignating Summons,” he added.
“Therefore, Jeffrey’s statement is plainly untenable and clearly reflects his lack of understanding on how a system of law operates in our country,” Martin said.
This also reflects how poorly he understands the concept of ‘precedent’ where the high court is bound by the decision of the superior court.
This is an elementary point in law, hence, the High Court is bound by the decision of the Federal Court, just like in the Perak case, he explained.
Martin said it is evidently clear that with the defection of six assemblymen from Sabah’s Barisan Nasional decreased from 29 to 23, Musa had therefore lost the command of the assembly majority.
Despite the distinguishing facts and circumstances of the Perak’s case and that Perak is constitutional monarchy, the legal principles enunciated by the Federal Court is applicable to the present dispute as both cases involved the same issue, he said.
“In reaching the decision yesterday, the judge cited the case of former Perak Menteri Besar Dato Seri Muhammad Nizar Jamaluddin and Dato Seri Zambry Abdul Kadir whereby the Federal Court had laid down principles that there is no mandatory requirement that there must be a motion of no confidence passed in the assemblymen against a Chief Minister before he ceased to command the confidence of the majority of the members of thr legislative assembly. This fact can be established through extraneous sources,” Martin explained.
Therefore, the High Court has struck out Musa’s summon in seeking a declaration that the swearing-in of Shafie as Chief Minister by Head of State Tun Juhar Mahiruddin was unconstitutional.-pr/BNN
