Tue, 12 Dec 2023


Why Shafie’s argument on locus standi does not hold water, says lawyer
Published on: Sunday, January 08, 2023
By: Datuk Tengku Ahmad Fuad
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Datuk Seri Shafie Apdal
It is not often that I can say that I’m glad that I was wrong. In 2018, I acted for Tan Sri Musa Aman and argued before both the High Court and Court of Appeal on the proper interpretation, application and operation of Article 6(7) of the Constitution of the State of Sabah.

For ease of reference, Article 6(7) states:

“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.”

Clause (3) refers to Article 6(3) which reads: 

“The Yang di-Pertua Negeri 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 mentioned in Clause (2) in accordance with the advice of the Chief Minister from among the members of the Assembly.”

The issue before the Court was whether the word “majority” in Art. 6(7) meant a plurality of seats (the most number of seats) or an absolute majority, that is more than half (50pc).  This was important because following the 14th State General Election (‘GE14’) Barisan Nasional led by Tan Sri Musa won 29 of the 60 seats contested while other parties combined won 31 seats.

If the word “majority” was taken to mean the most then, Art. 6(7) would apply, and Tan Sri Musa would be deemed to be the 

member most likely to command the confidence of the majority of members in the Assembly.

But if “majority” meant greater than 50pc, then Art.6(7) would not be applicable and could be disregarded by the Tun Yang Terutama when exercising his discretion under Art.6(3) in choosing a Chief Minister.

I argued fervently, passionately and forcefully that the word “majority” is best defined as a plurality of seats, i.e. majority of seats = the most seats.

I reasoned that the word “majority” in our Election Laws means the most as opposed to greater than half and that majority should be given the same meaning in respect of Art.6(7). For example, in an election, if there are 3 candidates contesting a seat, Mr. A, Madam. B and Miss C and the results are:

Mr. A – 3000 votes

Madam B – 3700 votes

Miss C – 3300 votes

Total Votes cast: 10,000

Under Malaysia’s election laws, Madam B wins the election because she received the most number of votes. But, Madam B only received 37pc of the votes cast – in other words, she won by a plurality of votes and not by an absolute majority of more than 50pc.

I also argued that in the Westminster system of representative democracy, majority in that context has always meant the most and never an absolute majority.  I contended that if the legislature had intended the word majority to mean more than 50pc, then the term absolute majority would have been used.  

Since Art.6(7) applies following a State general election, I submitted that the word majority should take on the same meaning as it is used in our election laws.

The court however, disagreed with me, and strongly too.

In the High Court, Justice Yew Jin Kee opined as follows: 

“If the court were to agree with the plaintiff’s contention that the word “majority” in art 6(7) means “relative majority” or the most,…The answer must be in the negative.

“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.”

Being dissatisfied with Justice Yew’s decision, I then took up the same point in the Court of Appeal where the Court unanimously dismissed my arguments and agreed with Justice Yew.

Therefore, I was wrong in 2018. The word “majority” in Art 6(7) has been defined by the Courts to mean more than 50pc of seats in the Sabah Legislative Assembly and not the most number of seats. 

Had I been right and had the Courts agreed with me, then in 2020, Parti Warisan, having won 29 out of the 73 seats contested would have been the party with the most seats and therefore Art.6(7) would have applied.  But alas, that was not to be.

Instead in 2020, the Tun Yang Terutama Tun Juhar, being himself a learned and qualified Sabah Advocate, correctly, properly and constitutionally determined that since no political party following GE15 had won more than 50pc of the seats contested, Art6(7) would not be applicable. 

In exemplary fashion, Tun Juhar then correctly exercised his discretion under Art.6(3) and proceeded to swear in Datuk Seri Haji Hajiji Bin Haji Noor as Chief Minister.

The So-Called Political Crisis

I am curious why at the Parti Warisan press conference held on the 7th of January 2023, Datuk Seri Shafie Apdal said that the current political crisis is the fault of Datuk Seri Haji Hajiji? In short this was Shafie’s argument: 

i) That in 2020, Warisan had the majority of seats following GE15 and therefore Shafie should have been sworn in in accordance with Article 6(7) as Chief Minister;

ii) That because Hajiji was now a member of Gabungan Rakyat Sabah (GRS) and since GRS did not exist in 2020, he was no longer qualified to be Chief Minister under Article 6(3);

iii) That “nobody knows whether he (Hajiji) commands the confidence of the majority”.

Let’s deal with item (ii) first. Datuk Seri Hajiji was sworn in by the TYT under Art.6(3) in 2020. It has already been established above that Art.6(7) does not apply because no political party won more than 50pc of the 73 Assembly seats. 

Art,6(3) does not mention or concern political parties at all. Art.6(3) is concerned with whether a particular member - as Chief Minister -  is likely to command the support of the majority of members of the Assembly. 

As stated earlier, Tun Juhar lawfully exercised his constitutional discretion in 2020 and swore in Hajiji as Chief Minister because Tun Juhar was of the view that Hajiji – as Chief Minister - was likely to command the support of the majority.

It is therefore irrelevant whether GRS was in existence or not in 2020. As such, Shafie’s argument that Hajiji lacks locus standi to be Chief Minister today simply does not hold water since the issue of confidence among members of the Assembly involves the individual views of each member and not those of the political parties to which they may belong.

For completeness, Art.6(7) would in any event, cease to apply after the Chief Minister is sworn in. Therefore, Shafie is wrong to say hat Art.6(7) is applicable today because (i) a state general election has not recently been held and (ii) no single political party has won more than 50pc of seats in the Assembly. Again, his arguments fall short.

Turning to item (i). Warisan did not win the majority of the 73 seats contested in 2020. Rather, Warisan only won 29 out of 73 seats or 39pc. The Courts have made it clear that the term majority as far as Art.6(7) is concerned means greater than 50pc. 39pc is not greater than 50pc and therefore Shafie’s argument that he should have been sworn in as Chief Minister in 2020 is both constitutionally and arithmetically wrong.

Additionally, is Shafie saying that Tun Juhar in 2020 acted in breach of the Sabah Constitution? Essentially, Shafie’s argument is that he and not Hajiji should have been sworn in following the results in 2020. If that is so, then Shafie is openly accusing Tun Juhar of acting unconstitutionally which leads to the bigger question. If Shafie thinks that the TYT was wrong in 2020, then why didn’t he commence proceedings in court then and there and argue his case?  Why only raise this so-called illegality now?

Finally, item (iii): Hajiji has maintained his position as Chief Minister since 2020 and has not lost the support of the majority of Assembly members. There is no evidence of a loss of confidence from a majority of Assembly members and if Shafie wishes to press the issue, then he should raise this matter in the Assembly itself. Shafie should not disturb the TYT over such things.

Datuk Seri Masidi Manjum in his media statement dated the 6th of January 2023 said that: -

“It is fundamental to Sabah’s constitutional order that the Tun Yang Terutama is not dragged into political schemes, disputes or power struggles. I hope that certain political leaders observe this and show the TYT and his office the respect it deserves.

Therefore, the recent practice of bringing signed statutory declarations to the Istana as evidence of the confidence of ADUNs in the government is undesirable and should be discouraged.”

I could not agree more. It is high time that matters of confidence among Assembly members (ADUNs) be settled in the Assembly (the DUN) and not in the Istana. 

The truth is that current political uncertainty was not caused by Hajiji. Today’s political turmoil is caused by those who attempted to unseat Hajiji as Chief Minister on the 5th of January 2020. Those who were involved are now manufacturing lame excuses as to why Hajiji should not be Chief Minister. I say that the time has come to stop such nonsense. 

Datuk Seri Shafie is an able politician and should, with Bung Mohktar as his loyal deputy, take the helm as leader of the Sabah Opposition in the Assembly. This would not only be proper and promote political stability in Sabah but moreover, is entirely in line how Sabah’s system of representative democracy should and must function.

- Fuad is well versed in constitutional law. He graduated with a Masters in Law from Cambridge University.


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