ON July 30, 2020, the Sabah assembly was dissolved by chief minister Mohd Shafie Apdal to nullify a coup by his predecessor Musa Aman.

State elections for 73 seats were held on September 20 the same year. The main contest was between the Warisan-Plus coalition headed by Shafie and the newly formed federal government-backed umbrella of coalition parties called Gabungan Rakyat Sabah (GRS).

GRS secured 38 seats for a simple majority. Warisan-Plus won 32 seats. Three more seats went to independent candidates. In terms of the popular vote, Warisan-Plus had a slight edge over GRS, winning 43.42%, or 317,541, of the votes.

Sabah Bersatu leader Hajiji Noor was duly sworn in as the chief minister (CM) on September 29, even though among GRS’s parties, Umno had the most seats at 14. Bersatu had 11. Nevertheless, some argued that Hajiji as leader of PN is backed by PN’s combined seat count of 17.

Be that as it may, the results above clearly show that Warisan had the most seats at 23. Accordingly, it had been said that Hajiji’s appointment contravened article 6(3) read together with article 6(7) of the Sabah Constitution because Hajiji’s party, Bersatu had only 11 seats compared to Warisan’s 23.

The constitutionality of Hajiji’s appointment as the 16th Sabah CM has resurfaced at the turn of the new year, re-igniting the legal debate of 2020.

Clauses 3 and 7 of article 6 of the Sabah Constitution are reproduced below:

(3) The Yang di-Pertua Negeri shall appoint as Chief Minister a member of the Legislative Assembly who in his judgment is likely to command the confidence of a majority of the members of the assembly and shall appoint the other members mentioned in cause (2) in accordance with the advice of the Chief Minister from among the members of the assembly.

(7) For the purpose of clause (3) of this Article, where a political party has won a majority of the elected seats of the Legislative Assembly in a general election the leader of such political party, who is a member of the Legislative Assembly shall be the member of the Legislative Assembly who is likely to command the confidence of the majority of the members of the assembly.

Clause (7) is a unique feature of the Sabah Constitution. No other state constitution has an equivalent or similar provision as article 6(7).

The clause was considered by the Kota Kinabalu High Court in the recent case of Tan Sri Musa Hj Aman v Tun Datuk Seri Panglima Hj Juhar Hj Mahiruddin & Anor . In that case, the plaintiff, Musa challenged the validity of his dismissal as CM by the Yang di-Pertua Negeri of Sabah (TYT) and the constitutionality of the appointment of Shafie to replace him as CM.

In the 2018 general election, a coalition of eight political parties contesting under the banner of Barisan Nasional of Sabah (BN-Sabah) led by Musa, won 29 of the 60 state seats.

Another coalition of three political parties, Warisan-PH (Warisan, DAP and PKR) led by Shafie also won 29 seats. The remaining two seats were won by STAR.

When STAR broke the stalemate by declaring its support for BN-Sabah, Musa and his state cabinet – with the consensus of all parties involved – were sworn in.

Musa asked the TYT to also formalise the appointment of six more nominated members to the state assembly but the TYT refused to do so. Two days later, six BN-Sabah assemblymen declared their support for Shafie.

After interviewing the six persons and studying their statutory declarations, the TYT informed Musa that the defections had resulted in the Shafie camp obtaining the majority number of seats. Pursuant to article 7(1) of the Sabah Constitution, Musa and his cabinet should resign.

Musa refused to resign. Nevertheless, the TYT proceeded to swear in Shafie as the CM.

Musa commenced an action in the Kota Kinabalu High Court where he sought a number of declarations including that he was still the lawful CM; that the purported revocation of his appointment and the appointing of Shafie in his place contravened the Sabah Constitution and were void.

It was contended on behalf of Musa that when the TYT exercised his discretion under article 6(3) of the Sabah Constitution in appointing a member of the assembly who, in his judgment, is likely to command the confidence of the majority of the assembly members of the, regard must be given to clause (7) of the same article which described the member of the assembly who is likely to command the confidence of the majority as the leader of a political party which has won a majority of the elected seats of the assembly in a general election.

It was further contended that in the absence of constitutional definition of the word “majority” in clause (7), the word must be given its ordinary meaning, which means relative majority, which is consistent with the doctrine of plurality, or the most number and not absolute majority, that is, the support of at least 31 members of the 60 elected assembly members.

According to the argument, the Constitution, being sui generis and a living document, calls for a broad interpretation. As earlier stated, clause (7) is a unique feature. No other state constitution has an equivalent or similar provision.

In response to the above argument, the High Court judge said:

“If the court were to agree with the plaintiff’s contention that the word ‘majority’ in Art 6(7) means ‘relative majority’ or the most, it would mean, from the votes secured by the political parties contesting in the (general election) in the Sabah state constituencies, Warisan with its 21 seats is the political party with the largest number of seats won.

“By virtue of Art 6(7), (Shafie) being an elected member of the assembly and the leader of the political party which won a majority of the elected seats of the assembly, should be the one who is likely to command the confidence of the majority of the members of the assembly and ought to have been appointed the chief minister.

“One might then ask: is (Shafie) who only had the support of 21 assemblymen likely to command the confidence of the remaining 39 assemblymen from the other parties to form a government? The answer must be in the negative.

“It is plainly clear that no single political party in Sabah had won a majority of the elected seats of the assembly whereby its leader can claim that he is likely to command the confidence of the majority of the members of the assembly. As such, clause (7) of article 6 does not come into play and was not applicable when the (TYT) exercised his discretion under article 6(3) of the Sabah Constitution.

“Neither the BN-Sabah nor the coalition led by (Shafie) won the majority of the assembly.”

Since the issue before the High Court was whether Musa’s revocation of his appointment and the appointment of Shafie in his place contravened the Sabah Constitution, what the High Court judge said must be obiter – that is, a judge’s expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent.

However, the obiter remark of the judge is instructive and persuasive, especially when the matter was not litigated beyond the Court of Appeal. This despite the Federal Court granting leave to Musa to appeal against the Court of Appeal’s decision which dismissed his appeal against the High Court judge’s decision without hearing its merits.

It is curious that the constitutionality of Hajiji’s appointment as the CM has been raised yet again, more so when no reference is made to the instructive obiter of the High Court judge.

There has even been talk of a political group claiming more than half of the support of the Sabah assembly, enough to form a new government. 

Will there be a Sabah chapter of the Sheraton Move?

Can’t we just get on with governing? – January 5, 2023.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.