Shafie Apdal’s appointment as Sabah CM is constitutional — Lim Wei Jiet

MAY 13 — It has been three days since a momentous GE14, yet the storm in the land below the wind has yet to reside.

In the 60 member assembly, Sabah BN won 29 seats while Warisan and Pakatan Harapan combined also won 29 seats. The two remaining seats were won by STAR, led by Jeffrey Kitingan, thus becoming kingmakers in Sabah.

In a dramatic turn of events, STAR — which was initially opposition aligned — joined Sabah BN to form the State Government.

Despite widespread anger, on 10^th May 2018, Musa Aman was sworn in as the Sabah Chief Minister. The Cabinet was appointed on 11^th May 2018 and, quite coincidentally, Jeffrey Kitingan was appointed a Deputy Chief Minister.

Before Musa Aman has even warmed the Chief Minister’s seat, it was later confirmed that 6 Sabah BN assemblyman had joined Warisan and Pakatan Harapan. Such is the zero sum game of politics — Shafie Apdal as the de facto head of Warisana and Pakatan Harapan had thereby obtained a comfortable 35 member majority in the Sabah State Assembly.

On 12^th May 2018, Shafie Apdal was sworn in as Chief Minister before Yang di-Pertua Negeri Juhar Mahiruddin.

Importantly, it was reported that the Yang di-Pertua Negeri had asked Musa Aman to resign beforehand.

To date, Musa Aman and his Cabinet have not resigned from office.

To many people, Musa Aman has not been “officially” removed as Chief Minister and thus Shafie Apdal’s appointment is questionable. A constitutional puzzle of having two concurrent chief ministers befuddles the citizenry.

How do we resolve this? In this respect, Article 7(1) of the Sabah State Constitution is crucial and reads: “If the Chief Minister ceases to command the confidence of a majority of the members of the Legislative Assembly, then, unless at his request the Yang di-Pertua Negeri dissolves the Assembly, the Chief Minister shall tender the resignation of the members of the Cabinet.

Two critical questions arise.

Question 1: Can Musa Aman’s loss of confidence be determined by the Yang di-PertuaNegeri in his own judgment, or must it be done by a vote in the Sabah State Legislative Assembly?

Question 2: If the former can be done, and such loss of confidence has been established and accepted by the Yang di-Pertua Negeri, can Musa Aman and his Cabinet be deemed to have resigned with immediate effect — thus paving way for Shafie Apdal?

Sabah is no stranger to this constitutional imbroglio. Article 7(1) has been an issue before in the 1990s when Pairin Kitingan lost confidence of the majority as Sabah Chief Minister. In the case of Datuk (Datu) Amir Kahar Tun Datu Haji Mustapha v. Tun Mohd Said Keruak & 8 Ors [1995] 1 CLJ 184, the High Court held that “the evidence that a Chief Minister ceases to command the confidence of the majority of members of the Assembly for the purpose of Article 7(1) of the Sabah Constitution, may be found from other extraneous sources than to be confined to the votes taken in the Legislative Assembly provided that, that extraneous sources are properly established”. In that case, such sources were by petition by the 30 members to the Yang di-Pertua Negeri and by Pairin Kitingan’s own admission that he had lost confidence of the majority.

A similar scenario also played out in the Perak Constitutional Crisis. Nizar Jamaluddin of Pakatan Rakyat had been appointed the Chief Minister. Three Pakatan assemblyman then defected to Perak BN. Instead of resigning, Nizar Jamaluddin requested the Perak Sultan to dissolve the Perak State Legislative Assembly to pave way for fresh elections. Sultan Azlan Shah refused to do so and appointed Zambry Kadir from Perak BN as Chief Minister instead. Nizar Jamaluddin filed an action in court and argued that an expression of loss of confidence can only be determined by a vote in the State Legislative Assembly, not on the Sultan’s own judgment and discretion.

The Federal Court in Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin v Dato’ Seri Dr Zambry Abdul Kadir; Attorney General (Intervener) [2010] 2 CLJ 925 interpreted Article XVI(6) of the Perak State Constitution (similar to Article 7(1) of the Sabah State Constitution) and held as such: “…evidence of loss of confidence in the MB may be gathered from other extraneous sources provided, as stated in Akintola, they are properly established. Such sources, we think, should include the admission by the MB himself and/or representations made by members of the LA that the MB no longer enjoys the support of the majority of the members of the LA.”

Thus, to answer Question 1, the Yang di-Pertua Negeri was capable of determining himself that Musa Aman had lost confidence of the majority — it need not be expressed by a vote in the Sabah State Legislative Assembly.

As for Question 2, the Federal Court in Nizar Jamaluddin held:

“Similarly here, on the literal interpretation of art. XVI(6), we are of the view that the word ‘shall’ should be given a mandatory effect. Therefore, it is incumbent upon the appellant in the circumstances of this case to tender the resignation of the Executive Council. The term Executive Council by definition includes the MB. (See art. XVI(2)) We, therefore, agree with the respondent that the refusal on the part of the appellant to resign after having been directed to do so by HRH clearly went against the express provisions of art. XVI(6). It cannot be the intention of the framers of the State Constitution that in the circumstances, it is open to the appellant whether to resign or to stay on as MB. The word ‘shall’, in our opinion, ought to be given a mandatory effect, otherwise, it would lead to political uncertainty in the State. The appellant cannot continue to govern after having lost the support of the majority. To allow him to do so would be going against the basic principle of democracy.”

In short, once the Yang di-Pertua Negeri accepts in his own judgment that Musa Aman has lost confidence of the majority, and has further asked him to resign, Musa Aman and his Cabinet are legally deemed to have resigned with immediate effect.

As such, there is no Chief Minister and Cabinet before Shafie Apdal’s appointment on 12^th May 2018.

As night follows day, Shafie Apdal is therefore constitutionally and legitimately appointed as Sabah Chief Minister.

*Lim Wei Jiet is an Advocate & Solicitor of the High Court of Malaya & Deputy Chair of the Bar Council’s Constitutional Law Committee.

*This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.