KOTA KINABALU, May 14 — The 2010 Federal court decision in the Perak mentri besar tussle will most certainly be cited in the likely legal battle for the Sabah chief minister post.
However, legal minds have differing views over how the court decision, which was in favour of Barisan Nasional (BN), can or ought to be interpreted in Sabah.
One of the big questions in the brewing constitutional crisis here is whether the chief minister can be removed or be compelled to resign.
While Sabahan lawyer Ryan Soo agrees that the Sabah Constitution is silent about whether the chief minister must resign before a new appointment is made, he believes Tan Sri Musa Aman can still be removed via Article 7(1) of the legislation.
The clause says: “If the chief minister ceases to command the confidence of a majority 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.”
He said according to the clause the chief minister should tender the resignation of the members of the Cabinet which would include him.
“In the current context, Musa no longer commands the confidence of the majority, which is usually determined at the assembly sitting but the Constitution does not prohibit this to be done at any other time.
“The Head of State can make a determination, as in Perak’s case, if Musa still has the majority in the legislative assembly,” said Soo, who is the Sabah Law Society treasurer.
After the 2008 election, PAS’ Datuk Seri Mohammad Nizar Jamaluddin was sworn in as Perak Mentri Besar but after a series of defections, the Sultan replaced him with Umno’s Datuk Zambry Abdul Kadir.
Similarly, Musa took his oath of office on May 10 but after six BN assemblymen defected to Parti Warisan Sabah and gave the party and its partners 35 of 60 seats in the legislative assembly, Warisan president Datuk Seri Mohd Shafie Apdal was sworn in.
He took his oath before the Yang di-Pertua Negeri Tun Juhar Mahiruddin at Istana Negeri at 9.15pm on Saturday.
Soo said the Perak case had gone all the way to Federal Court which in essence decided on two points.
“The Sultan did not have to wait for the assembly to formally pass a motion of no confidence; and the existing CM who refused to resign is ‘deemed’ to have resigned,” he said.
Constitutional lawyer Lim Wei Jiet pointed out that Sabah had been embroiled in a similar constitutional crisis in the 1990s when PBS president Tan Sri Joseph Pairin Kitingan lost the confidence of the majority after he was sworn in as chief minister.
He said the High Court held then 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.”
Also citing the Perak case, Lim said based on the court decision, once the governor accepts in his own judgement that Musa lost the confidence of the majority, and further asked him to resign, Musa 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 12th May 2018.
“As night follows day, Shafie Apdal is therefore constitutionally and legitimately appointed as Sabah chief minister,” said Lim.
According to the proceedings of the Perak case, the Sultan had ultimately arrived at his decision to appoint Zambry after interviewing all 31 members of the state assembly.
Another constitutional lawyer Surendra Ananth said that while Shafie’s appointment would be constitutional after the Perak court judgement, he personally felt that the court decision might not be correct.
He felt that the members of the state assembly should — at their first sitting — vote on who commands the support of the majority.
“The court in the Perak case decided that representations by the members of the legislative assembly to the Sultan were sufficient,” he said in a statement to Malay Mail.
“As much as I agree that having a chief minister who has lost the confidence of the majority is unhealthy to proper governance, equally, one might argue that changing a government so quickly after a few have changed their minds in an unaccountable manner, is also unhealthy to proper governance.
“These men or women are accountable to the state legislative assembly and to the people. That is where they must state and defend their position,” he added.
At polar opposites though is Sabahan lawyer Henry Gudid who disagreed that the Perak case could be a precedent in the Sabah CM row.
“The Perak constitutional case does not apply in Sabah. Under the Sabah Constitution, it is clear that the Head of State only has the discretion to appoint a chief minister,” he said.
He argued that once appointed, the governor cannot dismiss the chief minister nor can he appoint a second chief minister.
“Only a vote of no confidence in the Assembly can trigger Article 7 whereupon the chief minister must resign.
“If the CM still refuses, then he can be compelled to resign by the court,” Henry added.
Last night, Musa claimed he is still the rightful chief minister of Sabah and nothing has changed since he has not resigned.