Two legal views on the validity of Sabah Chief Minister appointments

KOTA KINABALU: Legal circles in Sabah are continuing the debate on the position of the two rival claimit Chief Ministers – Barisan Nasional’s Tan Sri Musa Aman and Parti Warisan Sabah’s Datuk Mohd Shafie Apdal.

Two landmark court decisions deal with similar situations.

One case involved the Perak Sultan’s move to replace former PAS Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin with Barisan's Datuk Seri Dr. Zambry Abdul Kadir in 2009.

Another case is the court decision on the removal of the Sarawak Chief Minister Stephen Kalong Ningkan back in 1965.

Sabah Law Society president Brandon Keith Soh said that the swearing-in of Shafie Apdal on Saturday, after Musa lost his majority, was legally binding as a principle of the law, as in the 2009 Perak case.

He said the Perak case would be binding on what transpired in Sabah unless there were other circumstances, facts or laws that might be considered by the court in Sabah.

“The Perak decision, remains a binding precedent,” Soh said in a statement, as Musa maintains that he is still legally Chief Minister, as he was sworn-in on Thursday (May 10).

However, in a letter from Istana Negeri, the Yang Di-Pertua Negeri had informed Musa that he was no longer Chief Minister with effect on May 12. Musa is mulling a legal challenge to his removal.

Soh said that in the Perak case, the Federal Court decided in 2010 that the Menteri Besar’s majority could be determined by other means and not necessarily by a vote of no confidence in the state legislative assembly.

At that time, the Sultan of Perak interviewed the state assembly members after three of them declared they had switched their support from the then Pakatan Rakyat state government to Barisan Nasional. 

It was then determined that the Pakatan Rakyat Mentri Besar,

Mohammad Nizar Jamaluddin, had already lost his majority support.

In that case, the court noted that if the Mentri Besar had already lost his majority, but yet refuses to tender the resignation of the state executive council, they are deemed to have vacated their respective offices.

It was therefore not necessary to wait for a vote of no confidence in the state assembly, Soh said, citing the 2010 court decision.

However, he said that a 1966 Federal Court decision in the Sarawak case was different from the Perak decision, where a court found that a vote confidence in the state assembly was necessary to remove Stephen Kalong Ningkan, the then Chief Minister of Sarawak.

Ningkan was dismissed by the Governor in 1965 while the state assembly was in session. 

There was also doubt whether a letter expressing support for the dismissal was properly signed by all the 21 members of the state assembly.

In this case, the court essentially decided that, based on their interpretation of the Sarawak Constitution, a lack of confidence in the Chief Minister could only be decided by a vote in the state assembly.

In order to strengthen the decision, the court also found that the Chief Minister then was not given an opportunity to tender his resignation or request for a dissolution of the State Assembly, Soh said explaining Kalong Ningkan’s case decision.

For Sabah’s case, he said if there is a legal challenge on the appointments of the Sabah Chief Minister/s, two articles in the state constitution would be central to arguments in court.

These are Article 6 (3) for the appointment and Article 7 (1) for the removal.

Soh said that SLS was a professional apolitical body and was giving its views based on public requests.

SLS views do not lean in favour of any particular political party’s side, he said.

One of the objectives of the SLS is to assist the Government and the courts in all matters affecting legislation and administration and practice of the law in Sabah, he added.

Sabah Umno/Barisan chairman Musa was first sworn in as Chief Minister at 11.10pm Thursday (May 10) before the Yang di-Pertua Negeri Tun Juhar Mahiruddin at Istana Negeri.

In less than 48 hours, Warisan president Datuk Seri Mohd Shafie Apdal was sworn in as Chief Minister at 9.30pm Saturday (May 12) by Juhar at the Istana Negeri also.

The general election saw a hung assembly when both Sabah Barisan and the coalition of Warisan-PKR-DAP had won 29 seats each in the 60-seat state assembly.

Both Musa and Shafie had separately tried to go to Istana Negeri on the morning of Thursday (May 10), in a bid to be sworn in as Chief Minister, but they were not permitted to enter.

And then Datuk Dr Jeffrey Kitingan's Sabah Star party, which had two seats, became the "kingmaker".

Sabah Star supported Sabah Barisan to give a simple majority of 31 seats, thus allowing Musa to be sworn in as Chief Minister.

But by the next day, six Barisan assemblymen – four from Umno and two from Upko – had declared their support for Warisan and its partners PKR-DAP.

With the majority support of 35 (out of 60) assemblymen, this allowed Shafie to be sworn in.

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