PAS-led PN may be the Opposition in government, PRK-led PH will then form strong Opposition in Parliament!
By Joe Fernandez
Commentary And Analysis . . . The media gives two weeks of “Malay unity” headlines. Then the memory fades. What remains are names, faces, and the Constitution.
It’s more likely that BN, given the number of criminal cases, will support unity government led by the PKR-led PH alliance. If that doesn’t happen, so be it.
Also, the economy at the micro-level was controlled by others and that affects the politics. The economy being controlled at the Macro-level by Muslim, speaking Malay as lingua franca, means nothing.
Sabah will be in Putrajaya no matter who leads, because:
Legally: MA63, Article 1(2), and Article 46 make Borneo’s consent necessary for constitutional stability.
Politically: Article 49A makes 112 seats unstable. No bloc holds them alone.
Structurally: Federalism under the BFD requires Sabah as partner, not appendage.
The controversy will not end unless there was closure. Closure comes when Putrajaya respects the spirit of the law over the letter of seat-counting.
PAS-led PN will oppose from government benches. PRK-led PH will oppose strongly in Parliament. But the government itself, whoever forms it, will include Sabah as well.
That isn’t politics. That’s the Constitution.
“The truth, once it emerges, cannot be hidden.”
The truth was that power in Putrajaya was no longer Malaya monopoly. The truth was that the rule of law, read with the spirit of the Constitution, demands Sabah at the table. The truth was that Sabah will be in Putrajaya no matter who leads.
This truth must not be hidden. It must be addressed. And the rule of law must be upheld.
Human beings can forget anything after two weeks. All they remember are names and faces. Nothing becomes an issue unless it’s in the media. If an issue does not go away in two weeks, it becomes controversy. Controversies will not end unless there was closure.
The media helps bring in the votes for those who remain in the public eye. This’s the political reality. But in law, the manner in which person was jailed comes first. There must be compliance with the rule of law, the basis of the Constitution, compliance with procedures and due process. The same principle applies on government formation in Putrajaya.
The commentary on Sabah’s anxiety over “Malay unity” missed one core jurist point: arithmetic changes, but the Constitution does not. Sabah will be in Putrajaya no matter who leads, not because of local seats, but because of Article 1(2), Article 46, and the Malaysia Agreement 1963.
Putrajaya
There was greater emphasis on the spirit of the law, under the rule of law, the basis of the Constitution when it’s read with the letter of the law. The greater emphasis on the spirit of the law trumps the letter of the law when both are read together under the rule of law, the basis of the Constitution.
The letter of coalition politics says: 98 + 14 = 112. A Malaya bloc can form government alone.
The spirit of the Constitution says: Article 1(2) restored Sabah as partner. Article 46 guarantees Sabah’s representation. MA63 isn’t addendum. It’s part of the supreme law.
A government formed without Sabah may have the letter of 112 seats. It will not have the spirit of the partnership. That was why no Malaya coalition, whether BN-PN or PH, can sustainably govern Putrajaya without Sabah.
Basic Features Doctrine
The Basic Features Doctrine (BFD) permeates the Federal Constitution in Malaysia. One basic feature was partnership. Another was the special position of Sabah as per MA63.
Procrastination in resolving MA63 was the suspension of due process within the partnership.
Sabah’s push on “settling MA63 by December” isn’t panic. It’s constitutional housekeeping before the next general election cycle. Because if Malaya-only majority emerges, it will still need Sabah’s consent on amending the Constitution. And amendments without consent risk violating the basic features.
This is why the “kingmaker” label was incomplete.
Sabah isn’t kingmaker.
It’s constitutional partner.
The Agong’s discretion under Article 43 on appointing Prime Minister “who in his judgment was likely on commanding the confidence of the majority” will, in practice, always turn on Sabah when no Malayan bloc holds 112 stable seats.
Instability
The “98 seats” arithmetic was incomplete.
Legal consideration: Article 49A, the Anti-Hopping Law, means those 98 seats are not stable bloc. Any defection triggers by-election.
Political consideration: PH holds 83 seats. No one was at 112. This guarantees hung-parliament dynamics for the foreseeable future.
In that environment, the media cycle matters.
Two weeks of narrative can make or break PM candidate. But closure only comes when the King appoints, and that appointment will require Sabah.
Result: PAS-led PN will be the Opposition in government. PRK-led PH will form strong Opposition in Parliament. Neither can govern alone. Both will need Sabah.
Nine Issues Resolved
The implementation of MA63 continues showing positive developments, with nine of the 13 main points previously agreed upon successfully resolved under the MADANI Government. Key resolutions include the devolution of regulatory authority over gas and electricity supply for the government in Sabah.
Specific unresolved MA63 issues include:
40 per cent net revenue entitlement for Sabah under Article 112D
Special grant under Article 112D
Return of federal land to state jurisdiction
Devolution of powers in health and education
Territorial sea and resource rights under the Continental Shelf Act
These are not gifts from Putrajaya; they are constitutional entitlements under MA63 and the Federal Constitution.
Putrajaya-Level Split
BN would stay with the PH-led unity government in Putrajaya while at the same time going for coalition with PN at state level. This isn’t hypocrisy. It’s constitutional pragmatism.
It’s highly unlikely that Sabah would back unity government in Putrajaya not led by PH. PH was the only bloc in Malaya that has publicly committed on MA63 implementation. GRS knows this.
DAP will stick with PH. If DAP goes solo, at the expense of PH, it may emerge as the largest party in Parliament, viz. pass 50 seats, but without PH. Then the question becomes: Who will then lead the government in Putrajaya? Answer: Only those who have the support of Sabah.
PAS-led PN will not stop harping on unity of Malay-speaking Muslim in Malaya. It risks prosecution if it harps on the 3R (race — actually language — religion and royalty). That rhetoric wins headlines in Malaya, but it does not win Sabah. And without Sabah, there’s no Putrajaya.
1MDB Precedent
Domestic institutions will have sure and steady income if they invest in the national debt burden, bonds including government and companies, and buffer stocks directly and invest in speculative activities through fund managers.
But governance matters.
Having said that, it has been alleged that Jho Low and rogue elements at Goldman Sachs made off with US$4.5b of US6.5b underwritten by Goldman Sachs for 1MDB based on government guarantees. The Malaysian Anti-Corruption Commission (MACC) has stated that they have recovered 70 per cent of the 1MDB bond monies. Another 30 per cent are still with 20 people. Najib’s name was not in both lists.
This was where the rule of law comes in.
Government guarantees should be under Parliament and Agong. Bank Negara was not good idea. They should focus on weeding out uncertainty in the forex market. Whatever Tabung Haji (TH), for example, lost can only be written off. Criminal cases can be filed against those responsible for the losses. Start with the auditors and who instructed them.
A government that ignores financial due process will also ignore constitutional due process. Sabah will not back such government.
The majority in law isn’t about demography but the numbers on the Government side on D-Day and the Annual Budget Day in Parliament.
The minority in law was the losing votes on D-Day.
If democracy means the right of the majority on ruling, it also means that the minority must be heard in the legislature.
There’s no proof that there’s consent of the governed in Singapore and Malaysia on legitimacy and sovereignty.
The First Past the Post System (FPtPS), inherited from Britain, fell on undemocratic soil in Singapore and Malaysia as there are multicorned fights on D-Day.
The EC has prerogative and discretionary powers on holding run-off, within two weeks of D-Day, if no candidate came in with at least 51 per cent of the votes counted, assuming that at least 51 per cent of the electorate turned up at the seat level. However, it doesn’t happen as EC are made of government appointees.
There’s also case for bottom up movement for democracy, against top down control freaks who first suspended local government election in 1965, and then abolished it permanently.
Besides local government election, there should be town council, village committee and church committees, all elected.
Local government, having the right of collecting taxes, can help determine who rules in the territories and states and at the centre. — TJT
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat, as jurist (legal scholar), on the nature of human relationships.
He was also the former Sabah Correspondent for Malaysiakini.com.
DISCLAIMER: The views expressed here are those of the author/contributor and do not necessarily represent the views of the Jesselton Times.
