Sunday, August 9

Constitutional wisdom in dissolution of Sabah DUN

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Photo shows the front page of The Borneo Post on July 31.

The dissolution of the Sabah State Assembly has been officially gazetted.

This means, Covid 19 pandemic notwithstanding, Sabah’s state general election must be held within 60 days from 30 July, 2020.

The incumbent Chief Minister, Datuk Panglima Shafie Apdal, said he had advised the Yang di-pertua Negeri Sabah, to dissolve the State Legislative Assembly to return the mandate to the people to decide who should govern the State.

This happened after his predecessor and challenger to the Office of Chief Minister, Tan Sri Musa Aman, had claimed he had in his possession, statutory declarations to prove he had the support of the majority of the State’s Assemblymen.

Tan Sri Musa had wanted an audience with the Head of State to show proof of majority support of the Assemblymen and to be sworn as the new Chief Minister.

He failed in his attempt to gain admission to the Istana Negeri, and a repetition of the famous historical incident in April, 1985 of having two “sworn in” Chief Ministers was averted. Constitutionally, a new Chief Minister could only be appointed if there is a vacancy, which under Article 7 of the Sabah State Constitution, can only happen when the Yang Di-pertua Negeri exercises his powers to dismiss an incumbent Chief Minister in the event:

i. The Chief Minister has lost the confidence of the Legislative Assembly; and

ii. The Chief Minister has refused to resign and failed to advise a dissolution.

In this case, both the Datuk Shafie and Tan Sri Musa claimed they have the support of the majority. But the Constitution speaks not of “ loss of support” but “loss of confidence”.

How is “loss of confidence” of the majority be gauged and confirmed for the Yang Di-pertua Negeri to exercise his constitutional power of dismissal of the Chief Minister from office.

The cases of Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli (1966) 1 LNS 186 and Tun Datu Hj. Datu Mustapha bin Datu Harun v Tun Adnan Roberts & Joseph Pairin Katingan (No.2) (1986) 1 LNS 136 decided “lack of confidence may be demonstrated only by a vote” in the Legislature.

However, these decisions have been overridden by the Federal Court decision in the Perak case of Dato Seri Ir Mohammad Nizar Jamaluddin v Dato Seri Dr Zambry Abdul Kadir (2010) 2 CLJ 925 decided that “evidence of lack of confidence in a Menteri Besar may be gathered from other extraneous source provided they are properly established.

Such sources should include the admission by the Menteri Besar himself and/or representations by members of the Legislative Assembly that the MB no longer enjoys the support of the majority of the Legislative Assembly’s members.”

In that case, the Sultan of Perak was presented with letters of support from 31 members of the Perak Legislative Assembly stating they would support for whoever was named by the then Deputy Prime Minister, Dato Seri Najib Abdul Razak to be the new Menteri Besar. All 31 Assembly members were brought before His Royal Highness to confirm what they had said in the letters of support.

The Sultan after having earlier rejected the incumbent Menteri Besar’s request for a dissolution of the Legislative Assembly called upon him to resign.

He refused to resign and the Federal Court held that “the offices of the Menteri Besar together with the Executive Council were deemed to have been vacated.

That decision opens up opportunities for State Assemblymen and Members of Parliament to demonstrate their loss of confidence in a certain person as Chief Minister, Menteri Besar or Prime Minister, without having to go through a vote being taken in Parliament or the State Assembly.

The decision in the Dato Seri Zambry case has shown that there could be changes in government without a General Election or in post General Election scenerio, by the submission of statutory declarations or letters of support (for another person to be Menteri Besar or Prime Minister), to the Head of State.

Apart from giving rise to instability in our parliamentary system of government and loss of confidence of the people in the electoral process, there is also a large body of public opinion questioning the legitimacy of a government thus formed, and labelling it, rightly or wrongly, as a ‘backdoor government”.

There are, therefore, solid arguments for reinstating the decision in the Ningkan case that loss of confidence be demonstrated only by a vote in the Legislature, so that our people’s representatives can cast their vote openly for or against a sitting Menteri Besar, Chief Minister or Prime Minister, as the case may be, and their electors could make their views known to their respective YBs on how they should vote on the motion of lack of confidence in the Head of the Executive.

This should be how good and mature parliamentary democracy should work and will instill greater respect and confidence of the electors in their elected representatives and make them publicly accountable for their actions or decisions.

In the Sabah case, the Yang Di-pertua Negeri constitutionally has the power to dismiss the current Chief Minister if he has lost the confidence of the majority in the Sabah State Assembly and refused to resign.

The current Chief Minister did not resign nor did he admit loss of confidence.

Due to conflicting claims as to which of the 2 contenders have the real numbers to constitute the majority of the Sabah State Assembly, the Yang Di-pertua Negeri had rightly and very wisely exercised this constitutional prerogative to accept the advice of Datuk Shafie to decree a dissolution of the Assembly and so, having accepted his advice, he is not entitled to dismiss him but to allow him to continue in a caretaker capacity.

The decision of the Yang di-pertua Negeri should serve as precedent to discourage any future attempts to destablise a Government either at State or Federal level, by the collection and submission of Statutory Declarations or letters of support from YBs.

What happens in Sabah today is a repeat of the Ming Court episode in Sarawak. In March, 1987, 28 out of 48 Sarawak Assemblymen gathered at the Ming Court Hotel in Kuala Lumpur and signed a petition addressed to the Governor to dismiss Tun Pehin Sri Abdul Taib bin Mahmud as Chief Minister.

But, the then Chief Minister advised the Governor to dissolve the Council Negeri and a snap election that followed resulted in an era of political stability for Sarawak which has since enjoyed rapid development and economic progress.

Our Constitutions, both federal and State, have designed for Malaysians a functional System of government that best serve the interests of the people and the Nation, and provide a foundation for political stability and national harmony and prosperity.

All Malaysians must ensure that this democratic system is not exploited by any persons or party to advance their own self interests or political agenda.

 

This analysis is the opinion of the writer and not that of The Borneo Post.