Appointment of Sabah CM: Was it constitutional?

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Graphic: Wikipedia

P Ramakrishnan takes a closer look at the special provision found in the Sabah Constitution and discusses the meaning of the word “majority” found in it.

There are many legal experts who exert that the appointment of the chief minister of Sabah was not constitutionally carried out. What took place, they claim, was unconstitutional. And therefore the appointment of Hajiji Noor is not legal. This is a serious allegation.

On the other hand, some argue the appointment was in keeping with the Sabah Constitution and therefore there should be no dispute over this appointment. But it is not as simple as that.

The arguments on both sides hinge on the word “majority” as contained in Articles 6(3) and 6(7) of the Sabah Constitution. What is indeed meant by majority in the Sabah Constitution? That is the crucial question.

We need to ponder carefully whether this word should have the normal meaning as we ordinarily understand it to mean. Or does it have a different definition altogether as supposedly intended in the Sabah Constitution?

If the word majority is to be accorded the common meaning as defined in the dictionary – ie more than half of a total number or amount; a number or percentage equalling more than half of a total; the number larger than half the total – then this special provision would be viewed as totally unnecessary in the Sabah Constitution. But it is not as simple as that!

Following the normal democratic practice, any party commanding such a majority will be called upon to form the government if based on the common definition of the word majority. This is very clear and there is no dispute when that party is appointed to govern the state. This is straightforward, requiring no debate.

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But in the latest concluded Sabah election, no single registered party secured a majority as commonly understood. This is where the problem lies. It is to overcome this problem that special provisions were enacted in the Sabah Constitution to resolve this issue. The framers of the Sabah Constitution were farsighted and must be complimented for their vision and wisdom.

Sabah is the only state to have this unique feature and safeguard. So we cannot interpret this provision to accord a meaning as is commonly understood when the purpose is something else in the Sabah Constitution.

When there is no single political party as such with an absolute majority, that is when Article 6 (3), read together with Article 6(7) of the Sabah Constitution, comes into play. This provision caters for a peculiar situation as we are confronted with following the Sabah state election: it requires the governor to appoint the leader of the party with the majority – meaning the most number of seats. In this peculiar and particular situation, that party is Warisan with 29 seats and the leader is Shafie Abdal.

If the interpretation is, according to Sabah Bersatu legal advisor Tengku Ahmad Fuad, the collective seats of the coalition form the majority (Free Malaysia Today, 28 September 2020), then there would be no need for this special provision in the Sabah Constitution. His argument is flawed.

That this unique provision was included only in the Sabah Constitution would indicate that there is a difference, and it was meant to be different from the provisions of other state and federal constitutions. This must be recognised and honoured. Let’s not give the general interpretation to the word majority as is commonly understood in order to nullify this special provision and render it useless. That would be wrong. That would be absurd.

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It would be prudent to refer this provision in the Sabah Constitution to be tested in a court of law to arrive at the truth and, thereby, settle this issue once and for all. It cannot be left hanging. It cannot be left to the whims and fancies of those craving for the chief minister’s post to interpret the Sabah Constitution to suit their greedy purpose.

Many Malaysians would like Shafie Apdal and his party Warisan to challenge the misinterpretation of the Sabah Constitution that resulted in the appointment of the wrong person as chief minister of Sabah. Shafie and his party are obliged to do that in the interest of justice. They shouldn’t be put off by what the opportunistic opponents might mischievously say. To be sure, they will claim that the prerogative of the Governor is being challenged. That would be utter rubbish. It would be a stupid thing to say.

Nobody is challenging the Sabah governor as some morons would suggest. By going to court, we seek the court’s assistance to interpret Articles 6(3) and 6(7). That is not challenging the governor but seeking the truth.

We hope Shafie Apdal will do this. He has come across as an honourable politician since forming Warisan and has conducted himself in a manner winning our respect and admiration.

A lot of rumours are swirling because of Shafie’s presence in Kuala Lumpur. There is a suggestion he may join forces with Muhyiddin Yassin and be appointed deputy prime minister. God forbid! We’d like to believe this is nothing but a blatant lie.

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We believe Shafie will not tarnish his reputation by aligning himself with corrupt politicians. Power and position is nothing without integrity and sincerity.

We hope that he is in KL to consult legal luminaries to mount a challenge in court. If so, he has our admiration and support for acting courageously in the defence of truth.

Shafie Abdal has to be himself because it is said, “People of integrity and honesty not only practise what they preach, they are what they preach.”

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loyal malaysian
loyal malaysian
4 Oct 2020 5.10pm

Good call, Rama.
Will Shafie take up the challenge to take Hajiji’s appointment to a court of law?
He should!