Court Solution To Sabah’s Recurring Crises?

By SELVARAJA SOMIAH 

It may provide the guiding principle for the appointment of future chief ministers whatever the outcome of the pending Federal Court decision on the validity of Datuk Seri Shafie Apdal as the rightful Sabah Chief Minister in the coming weeks, it may help set the framework for resolving future such constitutional crises that had become a feature of Sabah politics after every election since 1985.

There have been four instances to date where the immediate outcome of the voting process took a different path than expected.

When it first happened in 1985, the Federal Government had to step in and call for the people’s mandate to be respected. Datuk Joseph Pairin Kitingan (now Tan Sri), whose month-old Parti Bersatu Sabah (PBS) won the State election with a simple majority of 25 seats in the then 48-seat State Assembly found the Istana gates locked around midnight when he and his victorious entourage went there after the result for the last seat was known.

Unknown to him, a Shakespearean plot was in play at the Istana with certain quarters accessing it via a back entrance and getting Tun Mustapha Datu Harun sworn in as Chief Minister before the cockerel crowed at dawn.

The crisis was resolved only when then Acting Prime Minister Datuk Musa Hitam (now Tun) called for the people’s mandate to be respected, Mustapha’s appointment revoked and Pairin installed as the rightful Chief Minister.

Pairin was sworn in at 8pm – or nearly 24 hours after the Election Commission had announced the results.

Then Election Commission Secretary Tan Sri Rashid in recalling the incident told the Sabah Daily Express recently that when he went to the Istana before dawn to announce the results, he was shocked to learn that another person had already been appointed as Chief Minister, describing it as “Sabah’s weird politics”,

Then Governor Tun Adnan Roberts told the court case that ensued that he was forced to swear in Mustapha when one of the plotters behind the “power grab” showed him that he had a gun and was afraid of what would happen if he had not obliged.

A dissatisfied Mustapha took the matter to court which upheld Pairin’s appointment.

Barely 10 years later in 1994, a three-day delay by then Governor Tun Said Keruak, who claimed he was too sick to leave his bed to swear in Pairin allowed sufficient time for elected representatives from his Parti Bersatu Sabah (PBS) to cross over to the then ruling Barisan Nasional coalition and form the new State Government.

It was soon to be an inglorious end in political supremacy for Pairin.

Like in 1985, PBS then had a simple majority of 26 seats in the State Assembly but Pairin’s grip on power began to fade due to crossovers one by one until he finally had to throw in the towel.

For unknown reason, Pairin declined to challenge the toppling of his fledgling administration in court, unlike Musa in the latest cases.

What is notable is that of four occasions where there had been disputes over the appointment of chief minister, two involved Pairin and the other two, Musa.

The latest similar instances happened within a space of two years beginning with the Barisan Nasional-led Musa losing the CM post to Shafie within 48 hours of his appointment after securing a 31-seat majority in the State Assembly with the help of Datuk Dr Jeffrey Kitingan’s Star that made it 31 seats for Musa compared to Shafie’s Warisan-Plus coalition’s 29.

Even then, and reminiscent of Pairin’s situation in 1985, Musa had to endure an almost 24-hour nail-biting delay before his short-lived swearing in at around midnight the following day. He saw the CM chair being taken away from him after taking the oath before Tun Juhar Mahiruddin when BN coalition partner, Upko, defected to the side of Shafie’s Warisan Sabah.

And in a reversal of roles two years later, Musa was not able to claim back the post when he managed to command 33 seats in the 65-seat (including four Nominated Assemblymen) State Assembly to Shafie’s 32.

Just like Shafie following the 2018 election, Musa managed to upstage Shafie on July 29, 2020 also through crossover of a record 15 elected representatives from Shafie’s side.

There were accusations of enticement and money politics but could not be proven as no corruption reports were lodged, just like in 2018 when the defecting Upko election winners claimed they crossed over to Shafie’s side for the sake of helping his Warisan Sabah form the government, despite winning the election on platform, manifesto and funding by Musa’s Sabah BN.

Musa claimed that he was “played out a second time” when the Istana gates were closed to him on July 30, 2020.

The latest incident also saw corruption allegations levelled against a sitting Head of State for the first time, as well as police reports against both the Governor and Shafie by a Muslim NGO.

Sabah is the only state other than Perak to face such a situation where the appointment of a chief minister is no walk in the park if you secure a simple majority.

Not content to take things lying down, the resilient Musa succeeded in taking both “travesties of justice” as he sees it up to the Federal Court.

The Federal Court granted him leave to appeal against the Court of Appeal’s decision to be recognised as the rightful chief minister.

Federal Court Judge Abdul Rahman Sebli said “the people of Sabah had the right to know whether Musa’s removal was done lawfully and in accordance with the Sabah Constitution.” He also said the legal questions raised were of grave constitutional importance and have a far-reaching implication, which ought to be resolved by the Federal Court and should not be left hanging.”

A separate action also filed by Musa in the Federal Court which has also seen light of day related to the 32 elected representatives aligning with him on July 29.

Whatever the outcome of the two pending cases before the Federal Court, they may provide the guiding principle for the appointment of future chief ministers, especially in a simple majority election outcome, hopefully it may put to rest future such crises.

And whether it was right and proper for the former Chief Justice Tan Sri Richard Malanjum to advise the Governor to proceed with the appointment of Shafie when he already appointed Musa, is another discussion for another day.