What the Sabah Constitution Says About Who Our Next Chief Minister Is

A quick piece here about Sabah’s 16th State Election, in particular what ‘majority of elected seats‘ in Article 6 of the State Constitution means and who should be our next Chief Minister (CM).

Facts

As all Malaysians would know by now, a snap election was held in Sabah on 26 September 2020 where Gabungan Rakyat Sabah (GRS) comprising of an alliance of PN, BN and PBS, won the election by a simple majority of 38 out of 73 seats.

The snap election was brought about when the current Chief Minister of Sabah, Datuk Seri Panglima Shafie Bin Apdal dissolved State Legislative Assembly on 30 July 2020, following Tan Sri Musa Aman’s claim that he had secured a simple majority to form a new state government.

As at time of writing, it is reported that PN chief Datuk Seri Hajiji Noor has been chosen as the next Chief Minister of Sabah, and will be sworn in some time 10.30 am today.

The Warisan Supporter Arguments

Since yesterday, a number of supporters have argued that since Warisan was the party with the highest number of seats in the election (i.e. 29), it is Datuk Shafie, as the leader of the party who should be appointed as rightful CM.

This line of argument was premised on the following clause in Article 6 of the Sabah State Constitution:

The second line of argument is that the words ‘majority of the elected seats’ in Clause (7) refers to “most number of seats” in a comparative sense, and not 50% or more of total seats.

These arguments are in my opinion, heavily flawed. Read both literally and as a whole, Article 6 of the State Constitution in no way supports the contention that the party with the highest number of seats forms the state government, or its leader the Chief Minister.

Flaws In The Arguments

1. Precedence dictates otherwise. Back in 2018 as a result of a similar election conflict (GE-14), High Court judge Yew Jen Kie had in the case of Tan Sri Musa bin Haji Aman v Tun Datuk Seri Panglima Haji Juhar Haji Mahiruddin & Anor and another appeal [2019] MLJU 1682 (“2018 case“) explained that the term ‘majority’ in Article 6 is interpreted to mean that there is a minimum number of seats a party must secure in order to claim ‘majority’, and not just more seats than the opposition.

In that case, it was not enough for the party with the highest number of seats to have its leader appointed as CM. A further coalition had to be formed for a single party to attain majority. The case was affirmed by the Court of Appeal.

2. Clause (7) on the other hand is merely an extension of Clause (3) and can only be read when Clause (3) is triggered. This is obvious when Clause (7) begins with the sentence “For the purpose of clause (3) of this Article…”. It cannot stand alone.

In fact, the emphasis in Clause (7) is not which party’s leader shall be appointed as CM, but which member in the winning party shall be appointed as CM. It’s purpose is to impose two criteria on who may be CM:

(a) the CM shall be a member from the winning party; and

(b) who is likely to command the confidence of more than half the 73 elected ADUNs.

This will matter in a situation such as the current 2020 Sabah state election, where the winning party is a coalition and more than one party is offering its leader to take the CM seat. Clause (7) of the State Constitution offers a mechanism whereby a single CM may be selected.

Some Winning Arguments for Warisan Supporters

The following are in my opinion alternative lines of arguments for Warisan Supporters. What the 2018 case also sets precedence is this:

1. A party may win an election, but its leader may fail to command the confidence of the members of the Assembly.

As stated above, Clause (7) imposes two criteria on the CM candidacy. He must not only be from the winning party, but must also command the confidence of more than half the Assembly.

This was the view of both Judge Yew in the 2018 case and Abdul Kadir Sulaiman J in the Amir Kahar’s case, where His Lordship opined “a vote in the State Assembly is not the only means to determine the confidence of the members of the Assembly in the CM but depends on the circumstances. Other extraneous matters could provide sufficient evidence to establish the fact of the CM ceasing to command the confidence of a majority of the members of the State Assembly”.

This was why in the 2018 case, 6 statutory declarations were accepted as evidence showing that it was Datuk Shafie who has the confidence of the members of the Assembly. Thus, an essential consideration for TYT to appoint CM is not whether the party leader has won the election, but whether he has the Assembly’s mandate.

2. As mentioned in (1), winning an election is not conclusive evidence that the party leader has the people’s mandate. Even after polling has ended and people have chosen their ADUNs, it is possible for either party to convince the TYT that their chosen CM candidate should be sworn in. In other words, the mandate given by the people must be a subsisting mandate.

I say this because a handful of GRS supporters have condemned the move by Warisan to gather Assembly votes (or SDs) prior to the swearing in of Datuk Hajiji as “party-hopping” which is “hypocritical” and “betraying”, allegations in which are in my opinion inaccurate, premature and without legal basis.

Shifting of allegiance post-election and loss of confidence in the CM is a practice endorsed by the Courts as in the 2018 case, the Amir Kahar case, the 2009 Perak case and by extent, the State Constitution itself. In the 2018 case for example, STAR declared its support to form BN-Sabah coalition after polling was completed. As a result of the post-election coalition, the TYT proceeded to swear in Tan Sri Musa Aman as CM, and the Court of Appeal affirmed this decision.

Precedence shows that until a CM has been sworn in, it is open for either party to form and reform their party/coalition in order to satisfy the majority rule, although it is not clear whether this applies where a single party has obtained majority in the election.

Further, even where confidence of the Assembly has been obtained, a leader may still lose that confidence, resulting in a change of leadership. A more logical interpretation of the democratic process is that the CM must be able to garner the unwavering support of at least half the people, and not just show that he had for an instant the mandate of the people.

3. Finally, the 2018 case also reinforces that Article 6(3) confers the TYT absolute power and discretion to appoint the CM as follows:

This means that if the TYT is unsatisfied that the proposed CM has the Assembly’s mandate, he is completely within his right to refuse to appoint the CM. In this sense, the people will still have some safeguard against money politics in the election stage.

Suggestions For Reform

1. A “trial period” before taking CM or PM seat – One way is to include a rule that the confidence of the Assembly must be subsisting and not merely an incidence. The PM or CM must be able to withstand the test of time before the swearing in begins. In this way, we can avoid having a record or series of CMs and PMs taking office and then being removed shortly after for loss of confidence.

2. Clarify the rules on election results, in particular what happens if no party wins a majority – Can coalitions be formed after election is completed? Are there conditions attached i.e. “there can only be realliance if no single party attains majority seats in the election” or “prohibit realliances once a majority has been achieved at the conclusion of the election”.

Conclusion

Whether the election was won through money politics or through the people’s mandate, it is pertinent to choose our arguments wisely. As Christopher Buckley said: “If you argue correctly, you’re never wrong”.