Omar Bin Mammah v 1. ) Minister of Local Government and Housing of the State of Sabah 2. ) Ministry of Local Government and Housing of the State of Sabah

Case Significance

Confirms that a judicial-review challenge to the termination of a public appointment must be directed at the constitutional appointing authority (here SPANS under Article 37(1) of the Sabah Constitution), and that subsidiary legislation cannot displace that authority.

This Court of Appeal decision, on appeal from the High Court of Sabah and Sarawak at Kota Kinabalu, concerns a judicial-review challenge to the early termination of a public appointment and the identification of the true appointing authority. The appellant had been appointed as Penasihat Teknikal (Technical Adviser) and then as President of Majlis Perbandaran Tawau (the Tawau Municipal Council) for a two-year term, but barely three months into the appointment his tenure was reduced or terminated, a letter referring to a decision of the relevant public service commission, SPANS. He sought judicial review against the Minister and the Ministry of Local Government and Housing of the State of Sabah, contending that they had acted ultra vires and that the reduction of his fixed term amounted to a dismissal without a right to be heard. The High Court dismissed the application, and he appealed. The central question was whether the impugned decision was attributable to the respondents or to SPANS. The court held that the authority that appointed and terminated the appellant was SPANS, not the respondents, and that since the respondents had neither the power to appoint nor the power to terminate or vary his contract, his contention that they had acted ultra vires was misconceived and untenable. It held that section 8 of the Tawau Municipal Council Instrument 1983, being subsidiary legislation, could not override or displace the constitutional authority over the public service conferred on SPANS by Article 37(1) of the Constitution of the State of Sabah, so any subsidiary provision purporting to confer such powers on another body must yield to the superior constitutional framework. Finding that the High Court's findings had not been shown to be plainly wrong, the court affirmed them, dismissed the appeal and awarded the respondents costs of RM15,000. The judgment is a useful statement on directing a judicial-review challenge at the correct constitutional appointing authority.