Warisan's plan to reinstate clause on CM appointment will trigger instability, says lawyer

KOTA KINABALU: An opposition party’s proposal to reinstate a clause for the Head of State to appoint the leader of the party that wins the largest number of seats as Chief Minister is flawed, says government lawyer Tengku Datuk Fuad Ahmad.

He said Parti Warisan president Datuk Seri Mohd Shafie Apdal’s pledge to reinstate Article 6(7) that provides for the TYT to appoint as Chief Minister the leader of the political party with a majority of elected seats would tie the hands of the Yang di-Pertua Negeri.

He said the Gabungan Rakyat Sabah (GRS) government’s decision to repeal Article 6(7) was to give the Yang di-Pertua Negeri a free hand to decide on the leader who commands the true majority of the assembly.

"The GRS-led state government acted prudently, lawfully and decisively in repealing Article 6(7) on May 25, 2023.

"This is because Article 6(7) - which was enacted in the 1990s under the then Parti Bersatu Sabah government – was so imprecise and poorly drafted that it not only led to confusion as to who, how and when the governor should appoint a chief minister," he said, adding that the governor had the right to choose who he feels will command the true majority in the house.

Fuad also noted that in the failed attempt to topple the GRS government led by Datuk Seri Hajiji Noor in January last year, Article 6(7) was used in a "misguided attempt" by Warisan-Sabah Barisan Nasional.

"It was clear Hajiji commanded the majority in the house and the attempted coup by Shafie failed.

"The incident led to the repeal of Article 6(7). It lacked clarity. The fundamental defect of the clause is it is inconsistent with the principles of democracy.

"It is the root cause of political instability and constitutional uncertainty in Sabah in the past," he added.

"Assemblymen are free to choose who they support as chief minister, regardless of which political party they belong to. By specifying the 'leader of the political party' with a 'majority of elected seats', Article 6(7) assumes that those assemblymen will simply support their party leader as chief minister.

"The TYT’s hands are tied because the party leader with a majority of seats is automatically deemed to command the assembly’s confidence. Therefore, the TYT cannot hear or consider the views of assemblymen as a result of Article 6(7).

"But what if the assemblymen decide that they do not wish to support their party leader for the post of chief minister following an election?

"We see examples of such similar conduct in the Federal Parliament today where several Bersatu MPs have pledged their support for Datuk Seri Anwar Ibrahim without resigning from their party," he added.

He said Parliamentary democracy requires that each assemblyman is answerable to his or her electorate and not their respective political parties.

Furthermore, he said that Article 6(7) was only applied after a state election and was for a political party (or registered coalition) that won more than 51% of the seats.

The removal of Article 6(7), he said, brought about political stability and constitutional certainty.

Fuad suggested that the state government should have amended Article 7(1) of the Sabah Constitution to make it clear that the only way in which a sitting Chief Minister can be removed is through a vote of no confidence in the legislative assembly itself.

"It is not for the TYT to decide if the Chief Minister has lost the confidence of the Assembly. This will not only promote political stability but will also put an end to the use of statutory declarations and other external and extraneous devices that have been used of late in either toppling a government or triggering a state election," he said.