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Sabah Government confused on Article 6(7) and deleted it from Constitution

Daniel John Jambun,  31-5-2023
SABAH's gov't legal advisor Fuad Ahmad statement on Article 6(7) which has been deleted from the Sabah Constitution by the Hajiji government merits right of  reply.

The Hansard from before 1990 and media reports from and/or around that time will show that Article 6(7) covers the possibility that three or more political parties may be in the fray. It was about political stability.

Article 6(7) would be redundant if there are only two parties taking part in the state election.

Article 6(7) isn't about simple majority, and read with Article 6(3), does not rule out minority gov't. Coalition gov't can come after minority gov't has been sworn in.

Sabah, without Article 6(7), may be plagued again by endless power grab.

Even when Article 6(7) was in the Constitution, it was observed in the breach and/or there was no compliance.

After Joseph Pairin Kitingan in 1994, and before Shafie Apdal in 2018, and after the latter, all Chief Ministers were appointed in defiance of Article 6(7).

In fact, after two defections from gov't in 1994, Pairin was still the only lawmaker eligible for the Chief Minister's post.

He was literally chased out by dictatorial Prime Minister Mahathir Mohamad. Shafie Apdal's maternal uncle Sakaran Dandai, was picked by Mahathir as Chief Minister. That's violation of the Sabah Constitution.

Sakaran stepped down after nine months and became Governor. He has since passed away.

After Sakaran and before Musa Aman, there was a Chief Minister every two years. Musa's appointment, also unconstitutional, saw the end of the rotation of the Chief Minister's post every two years.

The Pandora's Box opened after the Governor appointed Shafie Apdal as Chief Minister on Sat 12 May 2018, two days after appointing Musa Aman unlawfully. Shafie Apdal was the rightful Chief Minister under Article 6(7).

Musa Aman took the matter to court. He was denied by the High Court and the court of appeal. The High Court did not tell Musa that he wasn't eligible under Article 6(7). Instead, it pontificated sanctimoniously on this and that and that and this.

The court of appeal saw no reason to set aside and or disturb the High Court Ruling based on the "dictionary meaning of majority".

The Federal Court, by majority opinion on Tues 1 Sept 2020, said the Governor had no discretion beyond that defined in the Sabah Constitution. In short, the Governor could not sack Musa i.e. if he did. The Governor denied sacking Musa and claimed that he only advised him to step down. The Federal Court should have told Musa that he was never appointed under Article 6(7).

Again, bad habits die hard, as Hajiji was appointed Chief Minister after the snap Sabah election on Sat 26 Sept 2020. Shafie was the only eligible candidate under Article 6(7).

Since Article 6(7) has been deleted, the state assembly remains the right and proper forum for electing the Chief Minister. There should be at least three candidates, from across the political divide, in the running. The Speaker has discretion. If no candidate gets 51 per cent of the votes counted, there should be runoff between the top two contenders.

Based on parliamentary procedures in the Commonwealth, at least two-third of the
state assembly should be present and voting for the new Chief Minister. That provides the quorum.

Voting should be by show of hands. There should be no secret ballot or voice vote.

The new Chief Minister can form Cabinet of lawmakers, not political parties.

Daniel John Jambun is President of Borneo's Plight in Malaysia Foundation (BoPiMaFo)

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