The dissolution of the State Legislative Assembly is deemed non-justiciable, thereby protecting the Governor's exclusive discretion under the Sabah Constitution.

Abu Bakar Jais JCA:

Introduction

[1] This is an appeal against the decision of the High Court on 21 August 2020 delivered by the learned Judicial Commissioner ("JC") who dismissed the application by the appellants for leave of the judicial review. This application involves largely a challenge against the decision made by the 1st respondent on the request of the 2nd respondent for the dissolution of the 15th Sabah State Legislative Assembly ("SLA") on 30 July 2020.

[2] The application emanated from the uncertain and tumultuous political situation that debased the orderly administration of the State of Sabah not long after the convening of that SLA.

[3] In deciding this appeal, this Court will among others address the issue of what is justiciable before the High Court and this Court. Also of greater importance to be discussed is whether the ultimate issue in this case in itself is not justiciable. The relevant provisions of the Sabah Constitution and certain common law principles will also be highlighted. This is undertaken to determine the propriety of the actions of the 1st and 2nd respondents, towards dissolving the SLA.

[4] In view of the dynamics of Sabah's politics, rapid and successive events have ensued since we decided this present appeal. Among others, roughly two weeks after we gave our decision on the appeal, a State Election had been concluded in Sabah and a newly minted Chief Minister has been appointed. Nonetheless, the focus of the present appeal is the dissolution of the SLA just before that State Election.

The Parties

[5] The 1st appellant is a former Chief Minister of Sabah. He in fact filed another action by Originating Summons ("OS") where the effect of this claim among others is that he had never ceased from being the lawful Chief Minister. For the present case, he at all material times also claimed to be entitled to be appointed as the Chief Minister again. The other appellants were all Sabah State Assemblymen before the dissolution of the SLA and supported the 1st appellant to be appointed as the Chief Minister.

[6] The 1st respondent is the Head of State and Governor of Sabah and under the Sabah Constitution is known as the Yang di-Pertua Negeri ("YDPN").

[7] The 2nd respondent before the dissolution of the SLA was the Chief Minister of Sabah and with the said dissolution, at all material times, the caretaker Chief Minister.

[8] The 3rd respondent is the Election Commission and under art 113 (1) of the Federal Constitution is vested with the power to conduct elections to the House of Representatives and Legislative Assemblies of the States.

[9] The 4th respondent is the Government of the State of Sabah.

Background Facts

[10] On 29 July 2020, the 2nd respondent acting as the then, Chief Minister of Sabah wrote to the 1st respondent acting as YDPN, requesting the latter to issue a proclamation for the dissolution of the SLA. On 30 July 2020 the 1st respondent agreed to the request and signed and issued the Proclamation of the Dissolution of SLA ("Proclamation"). On the same date, the Proclamation was gazetted and the 3rd respondent, the Election Commission was informed of the same.

[11] Having been notified of the Proclamation, the 3rd respondent set the mechanism moving for a State Election of representatives of the next SLA. Towards this objective, the 3rd respondent set 12 September 2020 as the nomination date for the State Election. This date happens to be five days after this panel of the Court of Appeal first heard the present appeal on 7 September 2020. The 3rd respondent also fixed the date for the State Election on 26 September 2020.

[12] The appellants applied at the High Court for leave for judicial review essentially to quash the decision of the 1st respondent to dissolve the SLA and the Proclamation. Declarations were also requested by the appellants in this application for leave, arising from the said dissolution of the SLA and the Proclamation. More on this is seen in the reliefs requested in t