Ramakrishnan reflects on the appointment of the Sabah CM: Is it constitutional?


By P Ramakrishnan: Ten days ago, on 29 September 2020, Sabah’s Perikatan Nasional chief, Hajiji Noor, was sworn in as chief minister of Sabah after the weekend election on 26 September.

Today, Hajiji  has tested positive for Covid-19 and is receiving treatement at the Queen Elizabeth hospital in Kota Kinabalu.

Ramkrishnan wrote this article on 4 October and discusses Hajiji’s appointment. He focuses on the word ‘majority’ contained in Articles 6(3) & 6(7) of the Sabah Constitution. He asks, “What is meant by ‘majority’ in the Sabah Constitution?”

Hajiji Noor

There are many legal experts who exert that the appointment of the Chief Minister of Sabah was not constitutionally carried out. What took place, they claim, was unconstitutional. And therefore the appointment of Hajiji Mohd Noor is not legal. This is a serious allegation.

On the other hand, some argue that the appointment was in keeping with the constitution and therefore there should be no dispute over this appointment. But it is not as simple as that.

The arguments on both sides hinge on the word ‘majority’ as contained in Articles 6(3) & 6(7) of the Sabah Constitution. What is indeed meant by ‘majority’ in the Sabah Constitution? That is the crucial question.

We need to ponder carefully whether this word should have the normal meaning as we ordinarily understand it to mean. Or does it have a different definition altogether as supposedly intended in the Sabah Constitution?

If the word ‘majority’ is to be accorded the common meaning as defined in the dictionary – i.e. more than half of a total number or amount; a number or percentage equaling more than half of a total; the number larger than half the total – then, this special provision would be viewed as totally unnecessary in the Sabah Constitution. But, it is not as simple as that!

Following the normal democratic practice, any party commanding such a majority will be called upon to form the government if based on the common definition of the word ‘majority’. This is very clear and there is no dispute when that party is appointed to govern the state. This is straightforward requiring no debate.

But in the latest concluded Sabah elections, no single registered party that had contested in the elections had secured a majority as commonly understood. This is where the problem lies. It is to overcome this problem that the special provisions were enacted in the Sabah Constitution to resolve this issue. The framers of the Sabah Constitution were farsighted and must be complimented for their vision and wisdom.

Sabah is the only state to have this unique feature and safeguard. So we cannot interpret this provision to accord a meaning as is commonly understood when the purpose is something else in the constitution.

When there is no single political party as such with an absolute majority, that’s when Article 6 (3) – read together with Article 6(7 – ) of the Sabah State Constitution comes into play.  This provision caters for a peculiar situation as we are confronted with following the Sabah state elections. It requires the governor to appoint the leader of the party with the majority – meaning the most number of seats. In this peculiar and particular situation that party is Warisan with 29 seats and the leader is Shafie Abdal.

If the interpretation is according to one Tengku Ahmad Fuad, the Sabah PPBM’s legal adviser that the collective seats of the coalition forms the majority – (FMT Reports, September 28, 2020) – then there would be no need for this special provision in the Sabah Constitution. His argument is flawed.

That this unique provision was included only in the Sabah state constitution would indicate that there is a difference and was meant to be different from the provisions of other state and federal constitutions. This must be recognized and honoured. Let’s not give the general interpretation to the word ‘majority’ as is commonly understood in order to nullify this special provision and render it useless. That would be wrong. That would be absurd.

It would be prudent to refer this provision in the Sabah Constitution to be tested in a court of law to arrive at the truth and, thereby, settle this issue once and for all. It cannot be left hanging. It cannot be left to the whims and fancies of those craving for the CM’s post to interpret the constitution to suit their greedy purpose.

Malaysians would like Shafie Apdal and his party Warisan to challenge the misinterpretation of the constitution that had resulted in the appointment of the wrong person as CM of Sabah. Shafie and his party are obliged to do that in the interest of justice. They shouldn’t be put off by what the opportunistic opponents might mischievously say. To be sure, they will claim that the prerogative of the governor is being challenged. That would be utter rubbish. It would be a stupid thing to say.

Nobody is challenging the governor as some morons would suggest. By going to court, we seek the court’s assistance to interpret Articles 6(3) & 6(7). That is not challenging the governor but seeking the truth.

We hope that Shafie Apdal will do this. He has come across as an honourable  politician since forming Warisan and has conducted himself in a manner winning our respect and admiration.

There are a lot of rumours swirling around because of his presence in Kuala Lumpur. There is a suggestion that he may join forces with Muhyiddin and be appointed Deputy Prime Minister. God forbid! We like to believe that this is nothing but a blatant lie.

We believe, Shafie will not tarnish his reputation by aligning himself with corrupt politicians. Power and position is nothing without integrity and sincerity.

We hope that he is in KL to consult the legal luminaries to mount a challenge in court. If it so, he has our admiration and support for acting courageously in the defence of truth.

Shafie Abdal has to be himself because it is said, “People of integrity and honesty not only practice what they preach, they are what they preach.”

(The views expressed are those of the contributor and do not necessarily reflect the views of Rebuilding Malaysia.)

This article was published on 4 October in this link.

P Ramakrishnan is the long-serving former president of Aliran who served three and a half decades on its executive committee, and has been with Aliran since its inception in 1977. Now an ordinary Aliran member, he continues to highlight issues of public interest to a larger audience.
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