Who has the majority? Lawyer explains

1. Much has been said about the applicability of Art 6(7) in the matter of appointment of the Sabah Chief Minister after the State Election concluded on 26.9.2020. However, a lot of things said about Art 6(7) are inaccurate at best or misplaced at worst.

 

2. To recap, Art 6(3) is similar to Art 43(2)(a) of the Federal Constitution.

 

3. Art 6(7), on the other hand, is a unique provision that is only peculiarly found in the Sabah State Constitution. The Art reads:

 

“For the purpose of Clause (3) of this Article, where a political party has won a majority of the elected seats of the Legislative Assembly in a general election, the leader of such political party, who is a member of the Legislative Assembly, shall be the member of the Legislative Assembly who is likely to command the confidence of the majority of the members of the Assembly.”

 

4. Many have interpreted the highlighted and underlined phrase above to mean a single party that bag the greatest number of seats in the State Legislative Assembly; the basis for such interpretation rests on the dictionary meaning of the word “majority”, which is the greater number.

 

5. Therefore, based on that dictionary meaning, the argument goes that the leader of Party Warisan Sabah, whose party won 29 seats, and thus being a party with the greatest number of seats, should have been appointed as Chief Minister of Sabah.

 

6. The argument is quite untenable for the following reasons:

 

a) The word “majority” in Art 6(3) SSC and Art 43(2)(a) FC has always been interpreted to mean a number that equals to more than half of a total, i.e., for one to command the confidence of the majority, one must have the backing of more than half of the total number of elected representatives;

 

b) Clauses 3 and 7 are part of Art 6. The general rule is that the provisions of the constitution must always be read in harmony with each other;

 

c) Therefore, if the word majority in Clause 3 means a number that equals to more than half of a total, it makes no sense for the word majority in Clause 7 to have a different meaning, for if that is the case then it will lead to an incongruent and disharmonious reading of Art 6, something that cannot be afforded by the Constitution.  

 

7. The more elegant argument for the reading of Art 6(3) and (7) is thus:

 

a) A single party must firstly win seats which equal to more than half the total number of seats, i.e. 37 or more;

 

b) In such case, for the avoidance of doubt, the leader of such political party shall be automatically deemed to be the member likely to command the confidence of the majority of the members of the House.

 

8. If there is no single party that wins seats which equal to more than half the total number of seats, then the Governor needs not consider Art 6(7) when he exercises his judgment under Art 6(3).

 

9. In fact, the High Court in Tan Sri Musa Hj Aman v Tun Datuk Seri Panglima Hj Juhar Hj Mahiruddin & Anor and another case [2019] 10 MLJ 329, at para 29 had said thus:

 

“It is plainly clear that no single political party in Sabah had won a majority of the elected seats of the assembly in GE-14 whereby its leader can claim that he is likely to command the confidence of the majority of the members of the assembly. As such, cl (7) of art 6 does not come into play and was not applicable when the first defendant exercised his discretion under art 6(3) of the Sabah Constitution.”

10. In the recently concluded Sabah State Election, no single party won more than 37 seats. Although being the party with the greatest number of seats, Parti Warisan only obtained 29 seats, which is short of 8 to achieve the majority.

 

11. In the circumstances, there is no legal basis to appoint the leader of Parti Warisan as Chief Minister of Sabah.

 

12. So what happens now? The contesting parties have formed political blocs going into the election, them being Warisan + and Gabungan Rakyat Sabah or GRS.

 

13. In exercising his discretion under Art 6(3) to appoint a Chief Minister, the Governor may need to do the following exercises:

 

a) Identify what are the contesting political blocs;

 

b) Identify who’s who in the 2 contesting political blocs;

 

c) Determine and identify which bloc secure the majority of seats in the Assembly;

 

d) Identify the leader of the bloc that secure the majority of seats in the Assembly;

 

e) Determine whether the leader of the bloc enjoys the confidence of the bloc to which he belongs;

 

f) If the leader indeed does enjoy the confidence of the members forming the political bloc to which he belongs, then proceeds to appoint such leader as Chief Minister.

 

14. The above steps are only formula which the writer speculates opened to the Governor to take in the exercise of his judgment under Art 6(3); however, the method prescribed herein are not legally binding on the Governor.

Ruzaini Zulkifli is a proud Sabahan and a practising lawyer based in Kuala Lumpur

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