KOTA KINABALU: There is no easy answer to whether reinstating Article 6(7) of the Sabah Constitution would cause instability in the Sabah state assembly, says senior lawyer Datuk Roger Chin.
Calling the issue "complex", the former Sabah Law Society (SLS) president said clear legal language was needed if the Article was to be reinstated.
"Clear legal language should be in place when interpreting the Article in line with the ongoing discussion on balancing the governor's discretion with providing clear guidelines for forming a stable government.
Chin added that in the 2018 case of Tan Sri Musa Hj Aman v Tun Juhar Mahiruddin & Anor And Another, the arguments centred around the interpretation of Article 6(7) of the Sabah Constitution as the meaning of "majority" in it was disputed.
"The plaintiff (Musa) argued that 'majority' meant 'most seats' (relative majority), while the court ruled in favour of the ordinary meaning, requiring a party to win more than half the seats (absolute majority) to trigger the Article. This distinction has implications for the potential reinstatement of Article 6(7)," said Chin.
He added that the Article - removed in May last year - had previously guided the Yang di-Pertua Negeri in appointing the Chief Minister by suggesting that the leader of the party with the most seats in the Assembly be considered.
Chin said that some were arguing that its reinstatement could cause instability by limiting the governor's discretion in choosing the chief minister.
"They argue that this flexibility might be necessary to form a stable government, especially in situations with coalitions or party-switching sides,” said Chin.
"However, the court case itself suggests that without the Article, disputes over interpreting "majority" could lead to instability," added.
Chin then said that Article 6(7) could promote stability by providing clear criteria, potentially reducing room for manipulation and conflict.
He said that the Sabah Legislature's intention of including Article 6(7) in 1990 suggested the intention to prioritise the party with the most popular support.
"Reinstating it could be seen as upholding the legislature's intent and ensuring the Chief Minister reflects the will of the people as expressed through their votes," he said, weighing on the current arguments for and against replacement to 6(7).
"Ultimately, the decision of whether or not to reinstate it requires careful consideration of the potential benefits and drawbacks, taking into account the specific political landscape of Sabah," he added.
State opposition Parti Warisan president Datuk Seri Mohd Shafie Apdal said Article 6(7) will be reinstated if his party takes over the state government.
Mohd Shafie said he wanted to reinstate the Article – introduced by the Parti Bersatu Sabah (PBS) government led by then chief minister Tan Sri Joseph Pairin Kitingan in 1990 – to be read together with Article 6(3) to make sure the appointment follows the democratic process.
Article 6(3) reads: "The Yang di-Pertua Negeri shall appoint as Chief Minister a member of the Legislative Assembly who in his judgement is likely to command the confidence of a majority of the members of the Assembly and shall appoint the other members mentioned in Clause (2) in accordance with the advice of the Chief Minister from among the members of the Assembly."
The deleted Article 6(7) reads: "For the purpose of Clause (3) (TYT's appointment of a CM) of this Article, where a political party has won a majority of the elected seats of the Legislative Assembly in a general election, the leader of such political party, who is a member of the Legislative Assembly, shall be the member of the Legislative Assembly who is likely to command the confidence of the majority of the members of the Assembly".
However, state government lawyer Tengku Datuk Fuad Ahmad said reinstating Article 6(7) could trigger instability.
He said the reason for its removal was to give the governor a free hand to appoint a chief minister who commands the majority in the legislative assembly.
