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.
It may provide the guiding principle for the appointment of future chief ministers, especially in a simple majority election outcome.
There have been four instances to date where the immediate outcome of the voting process took a different path than expected in Sabah.
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 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.
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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 next day – or nearly 24 hours after the Election Commission had announced the results.
Then Election Commission Secretary Tan Sri Rashid in recalling the incident in your paper recently said 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 and not the rightful winner, describing it as “Sabah’s weird politics”,
Then Governor Tun Adnan Robert 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 complied.
A dissatisfied Mustapha took the matter to court which upheld Pairin’s appointment.
It was the first time a Head of State was dragged to court to testify.
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.
Over the three days, Pairin slept in his car, ate packed food and made use of a mobile toilet placed outside the Istana gates by a member of the public.
It was soon to be an inglorious end in political supremacy for Pairin and PBS.
Just like in 1985, PBS 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.
There was suspicion that PBS could have won more seats if not for phantom voters.
For unknown reason, Pairin declined to challenge the toppling of his fledgling administration in court.
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What is notable is that of the four occasions where there had been disputes over the appointment of chief minister, two involved Pairin and the other two Tan Sri Musa Aman.
But unlike Musa who took both the situations he faced in 2018 and 2020 to court, Pairin did not.
Even in the 1985 case, it was Mustapha who initiated the court action after the Federal Government blew the whistle on him.
The latest similar instances happened within a space of two years beginning with the Barisan Nasional-led by 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 in 2020, 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 crossovers of a record 15 elected representatives from Shafie’s side.
There were accusations of enticement and money politics but this 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.
There were rumours in social media that Upko President Madius Tangau did so in 2018 on the instructions of party chairman Tan Sri Bernard Dompok.
I recall reading in your paper Dompok saying he would respond to the claim but he never did.
Nevertheless, Musa claimed that he was “played out a second time” when the Istana gates were closed to him on July 19 and 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.
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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.
Hence, the Perak case keeps being cited in finding a solution to the Sabah case when brought before the court.
But the stark difference being while Juhar did personally interview all the assemblymen in the 2018 case, taking the cue of how the Perak case was solved by the Sultan – and yet forced Musa’s short-lived appointment as CM after the Upko reps jumped to the other side – he never did when confronted with the July 29 2020 situation and consented to dissolve the Assembly on the advice/request of Shafie. Leaving Musa and his 32 YBs (elected reps) outside the locked Istana gates.
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.
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.