JANUARY 5 ― On July 30, 2020, the Sabah state legislative assembly (SLA) was dissolved by the Chief Minister Shafie Apdal, to nullify a coup against his administration by his predecessor Musa Aman.

The 16th state election was held on September 20. Seventy-three seats in the SLA were contested. 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 and obtained a simple majority in the SLA. Warisan-Plus won 32 seats. Three other seats went to independent candidates. In terms of the popular vote, Warisan-Plus had a slight edge over GRS, winning 43.42 per cent, or 317,541 votes.

The official results as announced by the Election Commission may be tabulated as follows:

Bersatu state leader Hajiji Noor was chosen and duly sworn in as the chief minister (CM) on September 29, even though among GRS’s parties, Umno has the most seats, that is 14, while Bersatu has 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 has the most seats ― 23. Accordingly, it had been said that Hajiji’s appointment contravened Article 6(3) read together with Article 6(7) of the Sabah State Constitution and therefore is unconstitutional since Hajiji’s political party, namely Bersatu only managed to secure 17 seats compared to Warisan’s 23 seats.

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

For good measure, clauses (3) and (7) of Article 6 of the Sabah State 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 State Constitution. No other state constitution has an equivalent or similar provision as Art 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 and another case (2019).

In that case, the plaintiff, Musa challenged the validity of his dismissal as CM by the Yang di-Pertua Negri of Sabah (TYT) and the constitutionality of the appointment of Shafie to replace him as CM.

In the 14th general election (GE-14) held on May 9, 2018, 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 seats in the SLA.

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.

The results may be tabulated as follows:

When STAR broke the stalemate by declaring its support for BN-Sabah, Musa ― with the consensus of all parties involved ― was formally sworn in as CM by the TYT. Members of his State Cabinet were thereafter sworn in.

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

After personally interviewing the six persons, and studying the statutory declarations they had deposed, to satisfy himself that their defection was genuine, the TYT informed Musa that as the defection had resulted in the Shafie camp obtaining the majority number of seats in the SLA, Musa no longer enjoyed the confidence of the majority of the members of the SLA. Pursuant to Art 7(1) of the Sabah State Constitution, he and his Cabinet should resign.

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

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 State Constitution and were void and that all acts and things done by Shafie as CM were equally void.

Before the High Court judge, it was contended on behalf of Musa that when the TYT exercised his discretion under Art 6(3) of the Sabah State Constitution in appointing a member of the SLA who, in his judgment, is likely to command the confidence of the majority of the members of the SLA, regards must be given to clause (7) of the same article which described the member of the SLA who is likely to command the confidence of the majority of the members of the SLA 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 members of the SLA.

According to the argument, the Constitution, being sui generis and being 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 as art 6(7).

In response to the above argument, the learned 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 GE-14 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 in GE-14 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 Art 6 does not come into play and was not applicable when the [TYT] exercised his discretion under Art 6(3) of the Sabah State 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 State Constitution, what the learned 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 again, more so when no reference is made to the instructive obiter of the learned High Court judge.

There have even been talks of a political group claiming more than half of the support of the SLA, enough to form a new government.

Some rumours claim that both the Opposition and some within the current GRS led government were in cahoots to topple Hajiji.

Will there be a Sabah chapter of the "Sheraton Move”? Can't we just move on and get on with governing?