Reference to court on Article 6(7) of Sabah Constitution not unlikely

 

It is interesting how Bridget Welsh, in her preliminary analysis of voting by the main ethnic groups in Saturday’s election, refers to the pattern of engagement along with ethnicity as a “uniquely Sabah pattern”.  

Sabah is also unique on an important matter that goes to determining the state government.

Under Article 6(3) of the Sabah Constitution, the Yang di-Pertua Negeri (TYT) 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 to the state cabinet in accordance with the advice of the chief minister from among the members of the assembly.

Nothing unique here.

However, Article 6(7) states that the leader of a political party which has won a majority of the elected seats of the assembly shall be the member of the assembly who is likely to command the confidence of the majority of the members of the assembly.

In short, the leader of the political party with a majority in the assembly shall be the chief minister.

This is unique to Sabah. The Federal Constitution does not have such a provision.

Now, a political party is defined in Section 2 of the Societies Act 1966 (Act 335). It’s a lengthy definition but suffice here to say that a political party refers to a society duly registered under the act.

This takes us to Gabungan Rakyat Sabah (GPS), an alliance of BN-PN-PBS. As acknowledged by Saifuddin Abdullah, who is the minister of communications and multimedia, GRS is not registered under the act and therefore not a political party within the meaning of Section 2.

Saifuddin considers it as a non-issue that GRS is not yet registered. He likens it to the situation when Pakatan Harapan won the 14th general election. At that time, Harapan was a coalition name which was not registered, but all their candidates contested using the registered party symbol - PKR.  

But, with due respect, the federal situation is different from the uniquely Sabah situation. The Federal Constitution, as stated above, does not have a provision similar to Article 6(7) of the Sabah Constitution. As such, the prime minister may be appointed from among members of the Dewan Rakyat who in the judgement of the Yang di-Pertuan Agong is likely to command the confidence of a majority of the members of the Dewan. The Federal Constitution does not identify that member to be the leader of the party which has won a majority of the elected seats in the Dewan Rakyat.

No party which contested Saturday’s election has in fact won a majority but Warisan has the most seats from among the political parties.

Warisan president Shafie Apdal, understandably, has remained coy over his party's next move. It could be an allusion to the established constitutional practice of the head of the largest party being chosen to head the government, as the case is in Canada where the leader of the political party who wins the most seats is summoned by the governor-general and sworn in as prime minister shortly after the election concludes.

Upon his appointment, the prime minister then forms the government. This means, in practice, picking a cabinet, which the prime minister does by appointing members of Parliament from his party as ministers. 

If his party has a majority in Parliament, his government will be a majority government. It is a minority government if no party holds an outright majority, like the current government under prime minister Justin Trudeau.

It remains to be seen how things will unfold despite the news that the TYT will swear in the new chief minister tomorrow.  

A reference to the court on the purport and effect of Article 6(7) of the Sabah State Constitution is not unlikely.

by : Hafiz Hassan , - Mkini

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The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.