KOTA KINABALU, Oct 6 — Following a proposal to appoint former chief minister Tan Sri Joseph Pairin Kitingan as the next Sabah’s head of state, lawyers here agreed that there is nothing in the state Constitution preventing a non-Muslim from holding the position although there may be “obstacles” in the way.
Lawyers who spoke to Malay Mail agreed that the state laws do not provide for the governor or Yang di-Pertua Negeri appointed to be of any particular religious faith and only needs to be a Sabahan, and without any active business or profit interests.
“The Yang di-Pertua Negeri may be any person who is a citizen of Sabah by birth and is appointed by the Yang di-Pertuan Agong after consultation with the chief minister. Neither the TYT’s oath of office nor the qualifications of a prospective TYT require the person to be of the Muslim faith,” said constitutional lawyer Tengku Datuk Fuad Ahmad.
TYT is the initials for “Tuan Yang Terutama”, the Malay honorific used to refer to the governor.
However, he said there are obstacles which may complicate the appointment of a non-Muslim to the post.
“For example, the oath of office requires the TYT to protect and defend Islam. By virtue of Article 5A, Islam is as the official state religion, and the TYT is bound to protect and defend Article 5A,” he said referring to the provision in the state constitution.
“It may be rather awkward for a non-Muslim to be placed in a position where he or she must protect and defend Islam for Sabah and Malaysia.”
He also said that constitutional convention, although unwritten, has shown that the Sabah’s head of state must be a Muslim.
All ten of Sabah’s past governors were Muslim, including founding father Tun Fuad Stephens, who was born Donald Stephens and converted from Christianity to Islam in 1971 before he assumed the role of governor in 1973, then known as Yang di-Pertua Negara.
During that period, the Yang di-Pertua Negeri was also the head of Islam in Sabah.
The Constitution was amended in 1986, under the Parti Bersatu Sabah government, to make the Yang di-Pertuan Agong the head of Islam in Sabah instead of the TYT.
“Moreover, the Agong may have a preference for a Muslim Yang di-Pertua Negeri and is not specifically bound to act upon the chief minister’s advice — the Agong need only consult with the chief minister,” said Fuad.
Another Sabah-based lawyer, Yusri Pungut, claimed it is “ridiculous and beyond reasonable expectation” to have a non-Muslim appointed as the TYT, by virtue of the TYT being on the same level as a Sultan in terms of his functions.
“Basically, TYT’s function is almost the same as Sultans or a ruler for states without one ... Sabah is one of the states without a Sultan.
However, he conceded that the Agong is the head of the religion of Islam for the state, and that there was indeed no requirement for TYT to be a Muslim under any federal or state Constitution.
“But I do believe that it is unnecessary as the intention of the Parliament or State Legislative is to make sure the historic tradition remains intact for the safeguard of the Agong and rulers’ sovereignty.
“I don’t think Yang di-Pertuan Agong shall think that (a) non-Muslim is qualified to be appointed as TYT,” he said when contacted.
However, another senior lawyer, Roger Chin disagreed and believes that the title of TYT is nowhere near on par with Sultans.
“There are two major distinctions between the constitutional roles of the nine hereditary rulers and the four Yang di-Pertua Negeri. While the Yang di-Pertua Negeri are members of the Conference of Rulers, they cannot participate in the election of the Agong, discussions related to the privileges of the Malay rulers and matters concerning the observance of Islam.
“In addition, the Yang di-Pertua Negeri does not function as head of Islam in their states; the role is fulfilled by the Agong,” he said.
Chin, who is also Sabah Law Society president, said that there was nothing legally preventing a non-Muslim from being appointed TYT.
“Legally, there’s nothing stopping it. But it’s always been a Muslim and when they appointed a non-Muslim as chief justice and attorney general this faced a huge uproar,” he said.
Tan Sri Tommy Thomas was the first non-Muslim appointed as attorney general under the short-lived Pakatan Harapan government, with Tun Richard Malanjum becoming chief justice in 2018.
“But the rights and religion is still very much protected by virtue of the Agong being head of Islam for Sabah.
“The Legislative Assembly is responsible for making provisions for regulating the Islamic religious affairs and for constituting a council to advise the Yang di-Pertuan Agong in matters relating to the religion of Islam,” he said.
Earlier this week, the Kadazandusun Cultural Association proposed former chief minister Tan Sri Joseph Pairin Kitingan as the next TYT, as the current term for Tun Juhar Mahiruddin is due to end. However, there is also no limit to the number of terms one can hold the position.
They said that Pairin, who is the Huguan Siou or paramount leader for the Kadazandusun is a suitable choice as he comes from the largest race in Sabah, had served the state and the Kadazandusun-Murut community respectably over the decades.
Its secretary Suman Yasambun also stressed that there is no religious requirement under the State Constitution and in the spirit of the reinstatement of state rights, Sabah was formerly a secular state with religious freedom being one of the conditions for Sabah to join in forming the Federation of Malaysia in 1963.
