By Bob Munang JP, Justice of the Peace for the State of Sabah
Advocate of the High Court of Sabah & Sarawak, Enrolled Barrister & Solicitor of the High Court of New Zealand
KOTA KINABALU: I would like to draw attention to the recent repeal of Article 6(7) of the Sabah Constitution and the statement made by a lawyer which was published in The Star on May 30, 2023, titled “Repeal of Article 6(7) of Sabah Constitution timely and proper, says lawyer” and the Daily Express on June 2, 2023 entitled “‘Anti-Power grab law was poorly drafted’: Fuad.”
I respectfully disagree with the learned counsel’s opinion that the repeal of Article 6(7) of the Sabah Constitution is timely and proper.
In fact, the repeal seems to have been hastily and improperly carried out, as it was bundled together with amendments introducing a new provision, Article 17A (also known as the Anti-Party Hopping law), to align with Article 49A of the Federal Constitution.
The justification provided for deleting Article 6(7) – that it is no longer relevant in the current political landscape – is flimsy, premature, and lacks sufficient justification.
In my previous communication with the former Sabah State Attorney General (1986-1999) in 2020, I happened to ask him about the Anti-Hopping law that was enacted during the PBS era, as we discussed some interesting constitutional issues.
Among the provision discussed was Article 6(7). The former State AG explained that the purpose was to prevent the appointment of a minority government.
This objective was exemplified by the ‘power grab’ events of 1985, where despite their electoral loss, BERJAYA and USNO formed a coalition.
They managed to persuade the TYT to appoint Tun Mustapha as Chief Minister, even though the coalition collectively held only 22 seats (16 for USNO and 6 for BERJAYA), while PBS secured the majority of elected seats (‘simple majority’) with 25 seats, and PASOK held 1 seat in the 48-seat Legislative Assembly.
Contrary to the claim that Article 6(7) is irrelevant today, it actually serves as ‘interpretation’ provision to clarify or guide the TYT in respect of Article 6(3) of the Sabah Constitution.
The constitution must be read in its entirety and not in isolation. In other words, the constitution must be examined as a whole, considering all its provisions, principles, and intentions, rather than focusing on individual sections or clauses in isolation.
The term ‘majority’ in the Sabah Constitution specifically pertains to the elected seats in the Legislative Assembly as clarified in Article 6(7).
Therefore, the phrase ‘majority of elected seats’ unambiguously refer to the political party that has won more than 50% of the total seats in the Assembly. In other words, it is a ‘clear’ or ‘simple’ majority but a ‘decisive’ majority. This interpretation aligns with both the literal and purposive meaning of those words.
The interpretation also aligns with what most Malaysians wants when a party is declared a winner in a general election.
The reason why Article 6(7) explicitly specifies that the leader of the party winning a majority of the elected seats is most likely to command the confidence of the Assembly is precisely because their party achieved a majority of the seats.
Article 6(7) would make little sense if it solely referred to the party with the ‘most seats’, as that party may not necessarily have the ‘majority of elected members’.
When read in conjunction with Article 6(3), Article 6(7) serves to clarify the powers of the TYT regarding the appointment of a Chief Minister from among the elected members of the Legislative Assembly at the conclusion of a State general election.
If a political party secures a majority of elected seats of the Assembly during the general election, the leader of that party shall be considered as ‘the member of the Assembly who is likely to command the confidence of the majority of members’ and is entitled to be appointed as Chief Minister.
However, if the general election results do not return any party with a majority of elected seats, Article 6(7) will not be applicable.
In such a scenario where the Assembly is considered ‘hung’, the TYT will resort to Article 6(3) and Article 10(2)(a) to fulfill the duty of appointing a Chief Minister.
The deletion of Article 6(7) has resulted in a situation where the TYT’s power to appoint a Chief Minister will now solely rely on the provisions outlined in Article 6(3).
Article 6(3), when read in conjunction with Article 10(2), confers discretionary functions upon the TYT in the appointment of a Chief Minister. In the absence of Article 6(7), the TYT’s discretionary power pursuant to Article 6(3) is arguably wide and unfettered, enabling the appointment of a Chief Minister from the pool of elected members within the Assembly.
The TYT exercises his personal judgment to determine the elected member who is most likely to secure the confidence of the majority of Assembly members. In other words, the TYT possesses unrestricted discretion in making a personal judgment when appointing a Chief Minister, without being constrained by considerations such as whether the member is elected or nominated, their role as a political party leader, or the numerical strength of their party in the Assembly.
The occurrence of no single party winning more than 50% of the seats in the Assembly is a normal outcome in a first-past-the-post electoral system like Malaysia.
In fact, in the first direct Sabah State general election held in April 1967, no single party achieved a clear majority. In that election, despite the parties USNO, UPKO, SCA, and SIC collectively forming the ‘Sabah Alliance’, USNO and UPKO contested against each other in some seats due to a negotiation failure over seat allocations.
When the final election results were declared, USNO won 14 seats, UPKO 12 seats, SCA 5 seats, and 1 seat was won by an independent candidate. The Assembly was considered ‘hung’.
To resolve the hung Assembly, pursuant to Article 6(3), the TYT invited Tun Mustapha, whose party won the ‘most seats’ or the ‘highest number’ of seats, to form a coalition government. USNO and SCA joined forces, resulting in the USNO-SCA coalition having 19 seats, which is 2 seats above the simple majority required in the 32-seat Legislative Assembly.
Tun Mustapha was then duly appointed as Chief Minister under the USNO-SCA coalition government but without the participation of UPKO. The absence of UPKO in the USNO-SCA coalition government, despite being part of the Sabah Alliance, meant that there was no effective representation of the Kadazans/Dusuns in the government of the day.
The assertion made by the writer regarding Article 6(7) being “poorly drafted, ill-considered, and unclear in its application” is regrettable and uncalled for. It is important to acknowledge the expertise and competence of the former State Attorney General and his team who were involved in the enactment of Article 6(7) in 1990.
The writer justifies his statement by giving an example that the terms ‘political party’ and ‘majority’ are left undefined. However, it is worth noting that the meaning of ‘political party’ is actually defined under the Societies Act 1966. Similarly, the meaning of ‘majority’ in Article 6(7) is quite clear.
It has a contextual meaning to it. Hence, the term ‘majority’ is to be interpreted in the context of ‘the elected seats’ in a Legislative Assembly.
It is also worth mentioning that the writer has presented extensive arguments on the interpretation of ‘majority’ in the case of Tan Sri Musa Hj Aman v Tun Datuk Seri Panglima Hj Juhar Hj Mahiruddin & Anor And Another Case. The court disagreed with his interpretation.
The suggestion made by the writer to amend Articles 6 and 7 of the Sabah Constitution in order to provide further clarity on how state assembly members express their confidence in a Chief Minister is not necessary.
It is important to note that Malaysia operates within the legal framework of the Westminster system which upholds well-established constitutional principles defining the concepts like majority and confidence.
These constitutional principles and conventions shared or resembling those in the other commonwealth jurisdictions like the United Kingdom, Australia, New Zealand, Canada, India, and Singapore, are equally applicable to Malaysia.
Therefore, introducing additional amendments may unnecessarily encroach upon the discretionary powers of the TYT in appointing a Chief Minister which in turn could potentially be counterproductive and lead to unforeseen challenges, including constitutional and political crises.
It is advisable to refrain from attempting to reinvent a system that is already functioning. It is also worth noting that the appointment of a Chief Minister under Article 6(3) of the Sabah Constitution aligns with Article 43 of the Federal Constitution, which governs the appointment of a Prime Minister.
Regarding the argument put forth “the only way the assembly should express its confidence in a sitting Chief Minister is through a vote of confidence (or no confidence)”, I am reminded of the opinion expressed by the learned Judge in the Amir Kahar’s case.
The Judge observed that “a vote in the Assembly is not the sole means to determine the confidence of the assembly members in the Chief Minister, as it depends on the circumstances.
Other external factors may provide sufficient evidence to establish the fact of the Chief Minister ceasing to command the confidence of a majority of the members of the Assembly for the purposes of Article 7(1) of the Constitution.”
Furthermore, the Federal Court in the Perak Menteri Besar’s case ruled that there is no compulsory requirement necessitating the passage of a motion of no confidence in the Assembly against a Chief Minister to test the confidence of the majority of the members.
This simply means that confidence can be verified through reliable external sources in order to determine the numerical strength of support for the Chief Minister.
This is the law in Malaysia on the issue of confidence as it stands and binding on all courts below, and until the Federal Court departs on their previous decision on the issue, the mode of determining a confidence or no-confidence vote is not tied to the Legislative Assembly alone.
The repeal of Article 6(7) of the Sabah Constitution appears to have been carried out hastily and improperly, and without wide consultation among Sabah legal circles. Instead of outright repealing
of Article 6(7), it should have been retained or further improved for clarity, if at all necessary. The justifications provided for the repeal of Article 6(7) lack solidity, fail to meet legal standards, are premature, and lack sufficient justification.
At the end of the day, the law on the appointment of Sabah Chief Minister must align with the expectations of the Sabah polity. This is a political position. Most Sabahans are of the view the party leader with the largest number of elected seats should be automatically appointed the Chief Minister if he can secure more than 50% of the elected seats in the Legislative Assembly.
If not, the person should be given the first right to form a coalition, and once a coalition government is formed, the member appointed Chief Minister can further prove that he commands the confidence of the majority of members of the Legislative Assembly afterwards. It’s as simple as that.
