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Sabah lawyers neutral
Published on: Wednesday, May 16, 2018

Kota Kinabalu: The Sabah Law Society (SLS) is taking a neutral stand on the issue of Sabah having two Chief Ministers, while at the same time taking into account that the Istana had issued a notice that it recognises only Datuk Seri Shafie Apdal, who was sworn in barely 24 hours after an instrument of appointment was also issued to incumbent Tan Sri Musa Aman.

Its President, Brenndon Keith Soh said that for the record, the SLS is an apolitical professional body and, therefore, does not lean in favour of any particular political party's side (Warisan Sabah or Barisan Nasional, respectively).

He said one of the objectives of the SLS is to assist the Government and the courts in all matters affecting legislation and administration and practice of the law in Sabah.

Soh said this statutory intent of the SLS was paramount for ensuring that there is always continuity, impartiality and good governance in the administration of the SLS, irrespective of which coalition forms the State Government of Sabah.

"Other than what has been reported, the SLS is unaware of all the material facts leading up to the decision of the Yang di-Pertua Negeri Sabah to subsequently appoint Datuk Seri Shafie Mohd Apdal as the Chief Minister of Sabah on May 12 2018," he said in a statement, Tuesday.

According to him, the SLS is of the considered view that unless the Perak authority can be distinguished on either the facts or law, which is a matter for the judiciary in Sabah to determine, it remains a binding precedent.

In the event there is a legal challenge to determine the legitimacy of the respective appointments of the Chief Minister of Sabah, he said the interpretation of Articles 6 (3) and Article 7 (1) of the State Constitution would be canvassed again before the judiciary in Sabah. The SLS has been requested by various quarters to provide their opinion on the interpretation of Article 6 (3) and Article 7 (1) of the Sabah State Constitution (the State Constitution), he said.

"Both of these Articles concern the appointment of the Chief Minister of Sabah by the Yang di-Pertua Negeri Sabah and the resignation of the Chief Minister of Sabah where he ceases to command the confidence of a majority of the members of the Legislative Assembly.

For completeness, Article 6 (3) states:-

"The Yang di-Pertua Negeri shall appoint as Chief Minister a member of the Legislative Assembly who in his judgment is likely to command the confidence of a majority of the numbers of the Assembly and shall appoint the other members mentioned in Clause (2) in accordance with the advice of the Chief Minister from among the members of the Assembly;…"

and Article 7 (1) states:-

"If the Chief Minister ceases to command the confidence of a majority of the members of the Legislative Assembly, then, unless at his request the Yang di-Pertua Negeri dissolves the Assembly, the Chief Minister shall tender the resignation of the members of the Cabinet," he said.

Existing media commentary on these two Articles have been primarily centred on the Dato' Seri Ir. Hj. Mohammad Nizar bin Jamaluddin vs Dato' Seri Dr Zambry bin Abdul Kadir Federal Court authority (the Perak authority) which was decided in 2010 involving a determination of which individual commanded the support of the State Legislative Assembly to be the Menteri Besar (MB) of Perak by the Sultan.

It was decided that confidence in the MB may be determined by means other than a vote of no confidence in the Legislative Assembly (in this case by admission of the MB himself and demonstration of support by a majority of the members that they supported a different party) and if the MB refuses to tender the resignation of the Executive Council, they are deemed to have vacated their respective offices. It was therefore not necessary to wait for a vote of no confidence in the State Legislature.

This Federal Court decision had decided not to follow an earlier decision in Stephen Kalong Ningkan vs. Tun Abang Haji Openg and Tawi Sli which was decided in 1966 in Sarawak on the basis that the factual matrix was different. Among others, the Legislative Assembly was in session when the Governor dismissed Ningkan and there was doubt as to whether a letter expressing support for the dismissal was properly signed by all the 21 members.

This authority essentially decided that based on the facts and interpretation of the Sarawak Constitution, a lack of confidence could only be decided by a vote in the Legislative Assembly.

In order to fortify this decision, it was found that the Chief Minister then was not afforded an opportunity to tender his resignation or request for a dissolution of the State Assembly, said Soh.

Meanwhile, SLS also extended its warmest commendations to all elected representatives at both the state legislature and federal parliament of Malaysia for their success in the recently concluded 14th General Election.

"In fulfilling the expectations of the constituents, we hope that all elected representatives uphold the Federal Constitution as the supreme law of the nation with integrity, competence, transparency and dedication.

"At the Federal level, and in accordance with the democratic process, Tun Dr Mahathir Mohamad commanded the confidence of the majority of the members of the Dewan Rakyat and was appointed by the Yang di-Pertuan Agong as Malaysia's 7th Prime Minister. In Sabah, the Yang di-Pertua Negeri had more recently appointed Datuk Seri Mohd Shafie Apdal as the Chief Minister of Sabah.

"The SLS welcomes and applauds Tun Dr Mahathir Mohamad's recent statements which confirm that the Government promises to set up a good government based on the Federal Constitution and to restore the rule of law in Malaysia.

"The rule of law does not stand alone in isolation for individuals fiercely defend it, organisations uphold it and society demands that we administer it. The SLS therefore looks forward to the Government's enhancement of accountability, just laws, open government and accessible and impartial dispute resolution.

"It has been said that the hallmark of a successful and stable democracy is the presence of a strong and freely operating civil society – in which Government and civil society work together for common goals for a better future, and at the same time civil society helps keep Government accountable," he said.

The SLS as the regulatory body for the legal profession in Sabah hereby renews and reaffirms its commitment to the Federal Government and the State Government of Sabah to continue to carry out its role to uphold the cause of justice without regard to its own interest or that of its members, uninfluenced by fear or favour.

In doing so, the SLS undertakes to continue working with the incoming state government of Sabah on law reform on matters affecting access to justice – effective legal representation, women and children rights, land issues, multi-storey developments, native customary rights, conservation of the environment and the Sabah state rights under the Malaysia Agreement 1963 among the many other areas of the law affecting the community, said Soh. - Jo Ann Mool

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